June 23, 2017

Washington court rules that the right to use one's property is not protected by the constitution

By Brian T. Hodges Senior Attorney

Earlier this week, the Washington State Court of Appeals issued its decision in Olympic Stewardship Foundation v. State of Washington Environmental and Land Use Hearings Office, in which PLF submitted an amicus brief.  The decision upholds a Jefferson County ordinance that requires all shoreline property owners to dedicate a 150-foot buffer as a mandatory condition on any new development. The opinion also upholds a requirement that certain property owners dedicate a public access easement across their property—a requirement identical to the one struck down as unconstitutional by the U.S. Supreme Court in Nollan v. California Coastal Commission.

To reach those results, the court ruled that, in adopting the Shoreline Management Act, Washington’s legislature rendered property rights “secondary” to the public’s interest in the environment—again, a position that stands in stark contrast to U.S. Supreme Court case law, including Palazzolo v. Rhode Island which recognized that states cannot extinguish property rights simply by enacting a law.

The court did not end its assault on constitutional rights there. The opinion also ruled that there is no fundamental, constitutionally protected right to use one’s property. The court, apparently, was not aware that the U.S. Supreme Court put this notion to rest nearly a century ago in Village of Euclid v. Ambler Realty Co.

Based on these rulings, the court unsurprisingly denied a citizen group’s challenge that the buffers were not adequately supported by the scientific record and took more property than necessary to mitigate for any negative impacts caused by the regulated property.

The court refused to consider the citizen group’s constitutional claim that the buffers—which the court acknowledged are designed to address runoff from neighboring properties and even county roads—violate the nexus and proportionality standards established by Nollan and Dolan v. City of Tigard. Despite many, many Washington cases allowing facial Nollan/Dolan claims, the court held such claims nonjusticiable in an unpublished portion of the decision.

So, without any constitutional rights, we turn to the SMA itself affords any protections. One would think that it did. After all, multiple provisions require the government to base its buffers on science showing the actual conditions on regulated properties and limiting the size of buffers to that necessary to mitigate for development impacts. Other provisions direct the government to respect private property rights and prioritize certain developments. But no. According to the court of appeals, the government can adopt buffers based on general presumptions without showing necessity or applicability.

The decision, of course, does not acknowledge the U.S. Supreme Court’s repeated chastisement that state legislature cannot regulate property out of existence by merely enacting a law that gives the public a right to private property. Nor does it acknowledge the large body of case law holding that the right to use one’s property is a fundamental right, protected by the constitution. Indeed, the decision also ignores Washington Supreme Court precedent holding that the public’s interest in the environment does not trump individual rights—both must be considered when reviewing a project that may impact the environment.

The silver lining is that this is only an intermediate appellate decision and is subject to review by both the Washington and U.S. Supreme Courts.

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