Washington state exaction scheme before the U.S. Supreme Court

August 19, 2016 | By BRIAN HODGES

San Juan County’s scheme to force shoreline property owners into dedicating water treatment buffers is now pending on a certiorari petition with the U.S. Supreme Court in the case, Common Sense Alliance v. San Juan County. As you may recall, in order to address a Washington state statute requiring that cities and counties adopt measures to protect the shorelines from new harm, San Juan County adopted an ordinance that requires all shoreline property owners to dedicate a “water quality buffer” designed to filter stormwater runoff before it reaches the shoreline—regardless of the fact that much of the runoff comes from neighboring properties and streets. Setting the wisdom of such a scheme aside, the county’s approach to the water quality assurance violates one of the most basic protections provided by the Takings Clause, the purpose of which is “to bar Government from forcing some people alone to bear the public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States (1960). Thus, the importance or wisdom of a public policy goal is irrelevant to a takings analysis.

PLF’s petition argues that San Juan County’s water quality buffer constitutes the type of exaction that the U.S. Supreme Court has held subject to heightened security in Nollan v California Coastal Commission (1987), Dolan v. City of Tigard (1994), and most recently in Koontz v. St. Johns River Water Management District (2013). The petition drew impressive amicus support. And in June, the Court ordered San Juan County to file a response to our petition.

Unsurprisingly, the County’s response dodged the question presented by our petition—whether a legislatively-imposed dedication is subject to Nollan and Dolan. Instead, the response argues that, for a variety of reasons, its buffer scheme should not be subject to constitutional scrutiny. According to the County, the buffer demand is an everyday land use regulation—like a setback or height restriction—and the government should be allowed to demand that homeowners dedicate land to mitigate for public problems without limit and without compensating the owners.

PLF’s reply brief, filed earlier this week, puts those tired arguments to rest:

The doctrine of unconstitutional conditions clearly applies here. Washington law recognizes buffers as a valuable, freely-alienable property interest. Wash. Rev. Code § 64.04.130; see also Klickitat County v. Wash. State Dep’t of Revenue, No. 01-070, 2002 WL 1929480, at *5-6 (Bd. Tax App., June 12, 2002) (Buffer area constitutes property; the holder of the conservation interest must pay property taxes). Therefore, a demand that an owner provide a buffer as a mandatory condition of permit approval appropriates a valuable property interest. See Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 1018-19 (1992) (conservation buffers deprive the landowner of a distinct property interest and may result in a taking). The buffer condition plainly puts that property interest to a public use. See, e.g., Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1292 (Fed. Cir. 2008) (“[T]here is little doubt that the preservation of the habitat of an endangered species is for government and third party use—the public—which serves a public purpose.”). Thus, this case presents the precise type of condition that Nollan/Dolan demands be subjected to heightened scrutiny. Koontz, 133 S. Ct. at 2594-95.

We expect the Court to conference on this case in September.