April 6, 2012

What we won in Kitsap Alliance of Property Owners

By Brian T. Hodges Senior Attorney

Last month, the U.S. Supreme Court denied PLF’s petition for a writ of certiorari in the case, Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board – a case that challenged Kitsap County’s adoption of regulations that require shoreline property owners who seek building permits to dedicate significant portions of their shoreline as environmental conservation buffers as a regulatory taking in violation of the Fifth Amendment to the U.S. Constitution.

So, that means that the dispute is over, doesn’t it?  If you were to listen to the County, you would think that the constitutionality of its buffer demands had been finally determined and they had won.  But that could not be further from the truth.

The constitutionality of Kitsap County’s buffer requirement is far from settled.  The County did not contest the substance of KAPO’s constitutional challenge in its pleadings to the U.S. Supreme Court.  Instead, the county attorney kicked the metaphorical can down the road, insisting that the constitutionality of its buffer program should not be determined based solely on the language of its regulations.  The county asked the Court to put off any judgment until the county had the opportunity to actually impose its buffers on a landowner.  At that point, the county argued, the affected property owner could challenge the constitutionality of the conservation buffer dedication.  This tactic simply bought the county time.

OK, so if the ultimate constitutional question has not been reached, where do we put this case?  In the loss column?  In the win column?  In balance, it’s a win.  While the outcome of KAPO’s facial challenge was not favorable, the case set a very important precedent for property owners across the state.

The Washington state Court of Appeals ruled that cities and counties must comply with the Takings Clause of the U.S. and State Constitutions when they adopt and apply critical area regulations to private property.  Specifically, when a local government demands a buffer as a condition for a new permit, it must show that the buffer is necessary to mitigate for an impact caused by the proposal.  Unless the county is willing to compensate landowners, its buffers cannot be based on a determination of some public need.

While this proposition seems elementary to landowners, it has been the focus of government and environmentalist dispute for years.  Indeed, in their opposition brief filed with the U.S. Supreme Court, Kitsap County, joined by a half dozen environmentalist and anti-property rights organizations, challenged the Washington Court of Appeals’ decision on that point, insisting that the buffers be exempt from constitutional scrutiny.  The U.S. Supreme Court’s denial of the petition leaves the court’s ruling in place, making the county’s buffer program, and all critical area regulations across the state, subject to constitutional challenges.  Thus, until resolved on their merits, the constitutional issues asserted in KAPO’s appeal will arise again and again every time the county applies its critical areas ordinance to a permit applicant.

This case also resulted in a more practical victory for property owners.  As a result of this litigation, Kitsap County has backed off its insistence that every shoreline landowner set aside significant portions of their land as the price of getting a permit approval.  As part of its defense before the U.S. Supreme Court, the County said that it was in the process of abandoning its large prescriptive buffers in favor of the more flexible, site-specific approach.  The county swore up and down that, if given a chance, it would cure any of the constitutional infirmities raised in KAPO’s appeal – even if that meant having to adjust its buffers to only require the property owner to set aside that property necessary to mitigate for impacts of the proposed development.  We will see.

But until then, we should take comfort in the fact that the KAPO litigation advanced the property rights movement.

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