March 23, 2010

PLF scores an assist for property rights in Washington

By PLF scores an assist for property rights in Washington

Author: Brian T. Hodges

Washington’s Growth Management Act is a mess. The Act directs local government to continually adopt new land use regulations designed to accomplish a whole host of inconsistent goals. Most notably, the GMA requires that local governments periodically update their critical area regulations – regardless of whether an update is needed – and in so doing, assure that the regulations protect the environment while at the same time encouraging affordable housing, economic development, and preserving property rights.

Over the past couple of decades, however, the balancing act envisioned by our Legislature has been abandoned in favor of general, area-wide environmental restrictions with little to no consideration of site specific conditions and existing uses. Time and time again, government and environmentalists have argued that protecting the environment is the primary goal of land use regulations, and property rights must cede.

Currently, 172 cities and counties have critical area ordinances restricting owners from making almost any use of their property just because it is near a river, stream or shoreline. Many of these ordinances go further, deeming lawfully existing homes "non-conforming" simply because they were built before the government expanded its critical area restrictions. Characterizing a house as non-conforming reflects a policy decision to phase it out of use. Because of that, non-conforming status drives up the cost of insurance, limits the ability to take out a mortgage, and severely impacts the value of the property.

But recently, PLF scored a number of victories requiring local government to adhere to a statute mandating a higher burden of scientific proof before adopting critical area regulations on shorelines. Futurewise v. W. Wash. Growth Mgmt. Hearings Bd., 164 Wn.2d 242 (2008); Kitsap Alliance of Property Owners v. Central Washington Growth Management Hearings Board, 152 Wn. App. 190 (2009); and Olympic Stewardship Foundation, et al. v. Jefferson County, No.?08-2-0029c (Final Decision and Order, Nov. 19, 2008)

Local government and environmentalists bucked under the pressure of actually having to compile a scientific record demonstrating the need to impose their critical area restrictions, and asked the Legislature to help by putting this requirement off for a few more years. Their first plea for legislative intervention failed because local governments were unwilling to roll back any of their critical area restrictions. But after a lot of back and forth with property rights advocates, local governments agreed to an amendment that would prohibit them from deeming existing and vested development and uses non-conforming simply because the government expanded buffers as part of its critical areas update – retroactive to July 27, 2003.

On March 18, 2010, the Governor signed Engrossed House Bill 1653 (2010 Wash. Sess. Laws ch. 107, 61st Leg., Reg. Sess) into law. 

After a series of PLF victories demonstrating that property rights must be respected and recognized as part of the planning process, Washington’s Legislature finally wrote specific property rights protections into the GMA. This is a significant win for land owners across the state.

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