June 6, 2012

Washington Supreme Court declines to address questions about science and property rights

By Brian T. Hodges Senior Attorney

Earlier today, Washington’s Supreme Court denied PLF’s petition for review in Olympic Stewardship Foundation v. Western Washington Growth Management Hearings Board, a case that casts a shadow of doubt over the role that science plays in land use planning.  The Court’s refusal to hear the case adds to the growing conflict and confusion about property rights in Washington state.

The OSF case arose from Jefferson County’s decision to adopt so-called “channel migration zone” rules that require property owners to preserve 100% of the vegetation on their river valley properties as a condition on any new development permit.  The county’s decision to impose the retention standard was not fully explained, and extremely suspect in light of the county’s science, which concluded that vegetation retention would be the least effective method for protecting property from the risk of migrating river channels.  Nevertheless, the Court of Appeals held that nothing in the law requires the county to document its reasons for departing from the recommendations of its scientific studies; it only needs to demonstrate that it consulted (then ignored) the studies before adopting land use policies that are ruinous for the region’s homeowners.   PLF attorneys argued that the Court of Appeals’ view of the role of science in planning cannot be what the legislature intended when it directed counties to consider “best available science” in developing critical areas regulations.  Indeed, when other Washington courts have considered this question in the past, they have emphasized the importance of using best available science as a way to establish the necessary foundation to support development regulations that will protect environmental functions without unnecessarily restricting the use of private property.  To achieve that balance, it is necessary that the government document how and why it adopted its preferred regulatory standard.  That is a simple standard that we have all learned since elementary math: show your work.

The Supreme Court’s denial is disappointing, but not unexpected.  Over the past several years, the Court has denied every case that asked whether blanket critical area policies violate property rights.  See our posts on the HEAL, KAPO, and CAPR decisions, all of which the Supreme Court declined to review.   We had hoped that OSF would break the proverbial ice.  Jefferson County’s scientific record stated unequivocally that vegetation retention would be ineffective to protect against erosion and channel change, recommending instead that the government allow homeowners to install low-impact bank armoring which would eliminate the risk of channel migration.  So, why, in the face of science, did the County choose an ineffective regulatory tool that will disrupt the rights of hundreds of landowners?  We may never know.

The Supreme Court’s refusal to take this case leaves in place a multitude of conflicts among the courts, and leaves many unanswered questions for homeowners and policymakers alike.  In earlier cases, the Supreme Court has held that cities and counties must create a record explaining how a critical area regulation works in light of a scientific record – especially where the government departs from the recommendations of science.  But the OSF decision says that it doesn’t have to do so.  Cases from the U.S. Supreme Court and Division I of Washington’s Court of Appeals have held that a local government cannot exact preset amounts of land as mandatory development conditions without first showing that the land grab is necessitated by the proposed development.  But OSF says they can.  The U.S. Supreme Court and Division I have determined that environmental regulations must comply with the Takings Clauses of the U.S. and Washington Constitutions.  But OSF said that they do not have to comply.

The Supreme Court’s reluctance to take review of property rights cases is allowing our law to fall into an unacceptable state of disarray.  This is a problem that affects all sides of the property rights debate.  Recently, a prominent government attorney published a law review article noting several conflicts that the Court has allowed to fester in our state’s regulatory takings law.  PLF has raised many of those conflicts – and others – in its petitions to the Supreme Court (see post here).  While OSF is a disappointment, it should serve as a rallying cry.  The Supreme Court’s highest duty is to protect the constitutional rights of the citizens of Washington state.  It is time that the Court sort through all of the conflicts surrounding property rights and regulatory takings law.

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