July 12, 2011

Washington Supreme Court denies request to review the constitutionality of big buffers

By Washington Supreme Court denies request to review the constitutionality of big buffers

Author: Brian T. Hodges

Earlier today, Washington’s Supreme Court denied PLF’s petition raising a facial challenge to the constitutionality of big, mandatory buffers in the case, Kitsap Alliance for Property Owners v. Central Puget Sound Growth Management Hearings Board.  This case arises from Kitsap County’s adoption of a critical areas ordinance that imposed an identical 100-foot buffer as a mandatory permit condition on every rural shoreline lot in the county, regardless of whether the lot is fully-developed or densely forested.

For years, PLF has asked why is it necessary for the County to impose the same buffer on a fully-developed residential property as it imposed on a fully-vegetated, undeveloped lot?  This is more than a rhetorical question.  The constitution requires that Kitsap County actually show that its buffer is necessary to mitigate for identified impacts caused by the development or use of the burdened property.  And all of the science supporting buffers concludes that the functionality of a buffer will vary based on existing land uses and site specific conditions like soil type, slope, and type of vegetation. 

So why did Kitsap County adopt uniform big buffers?  The County determined that it would be more “administratively feasible” (i.e., easier) to put the exact same buffer on all properties, explaining that it thought it would be too difficult to determine on a case-by-case basis whether a buffer is needed, whether it will actually function, and whether existing conditions on the lot warrant a different sized buffer. 

While we are disappointed that the Supreme Court will not take this opportunity to determine the constitutionality of big, uniform buffers, the issue is far from over.  The question whether the buffers violate the constitution will arise every time the County requires a landowner to dedicate a significant portion of his or her land as a natural vegetation area in exchange for permit approval.

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