March 26, 2012

U.S. Supreme Court declines review of PLF’s big buffer case

By Brian T. Hodges Senior Attorney

Earlier today, the U.S. Supreme Court denied PLF’s petition for a writ of certiorari in the case, Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board.  The petition asked the Court to consider whether a Kitsap County regulation requiring that shoreline property owners who seek building permits dedicate significant portions of their shoreline as environmental conservation buffers violates the Fifth Amendment to the U.S. Constitution.

While we are disappointed that the U.S. Supreme Court will not take this opportunity to determine the constitutionality of Kitsap County’s land grab, it is important to note that this case set very important precedent for landowners.  First and foremost, the Washington court held that critical area regulations, like Kitsap County’s buffer ordinance, must satisfy the U.S. Supreme Court cases, Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994).  Together, these cases created the essential nexus and rough proportionality regulatory takings tests, which require the government to demonstrate that a sufficient relationship exists between the permit application and the buffer dedication.  If the buffer dedication is not limited to only that amount of land necessary to mitigate for an environmental impact caused by the proposed use, then the government is merely using the permit process to shift the general public’s burden of paying to improve environmental conditions onto a select few property owners.  In this circumstance, the buffer dedication is unconstitutional and invalid.

The case is also a victory for property owners because, as a result of this litigation, Kitsap County has backed off its insistence that every landowner set aside a uniform and predetermined amount of land as the price of getting a permit approval.  In its brief filed with the U.S. Supreme Court, Kitsap County argued that, although it ordinance called for mandatory 50 to 100 foot buffers, the buffer requirement is only a starting point.  The County swore that, when it receives a development permit, it will adjust its buffers to only require the property owner to set aside that property necessary to mitigate for impacts of the proposed development.  We will see.

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