February 8, 2018

Washington Supreme Court will not hear important property rights case

By Brian T. Hodges Senior Attorney

Earlier this week, the Washington State Supreme Court denied review of the very troubling appellate decision in Olympic Stewardship Foundation v. State of Washington Environmental and Land Use Hearings Office, in which PLF submitted an amicus brief. The appellate decision upheld 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 by the U.S. Supreme Court in Nollan v. California Coastal Commission.

To reach those results, the appellate 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 appellate court did not end its assault on constitutional rights there. The opinion also ruled that, when a lot is subject to regulation, 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.

Thankfully, the state courts are not the end of the road on these issues.

 

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