The excuse known as 'the Growth Management Act made me do it' worked once for King County, but it didn't work the second time around. The recent Division I appellate court decision tossing out the county's vegetation-removal limits marks a huge victory for property rights advocates and a huge setback for environmental regulation in this state.
"Land Grab Defeated," trumpeted a headline on the Web site of the Pacific Legal Foundation, which represented the plaintiffs in Citizens' Alliance for Property Rights v. Ron Sims. The site shows a picture of a man holding up a T-shirt emblazoned with the words: "We Told Sims and DDES: They Can't Have 65% of My Land." The foundation took a step toward accomplishing through the courts what backers of the 2006 property rights initiative I-933 failed to accomplish at the polls.
King County Executive Ron Sims said in a press release that he was "very disappointed" by the decision. The County will appeal.
The court struck down only one small part — albeit one of the most controversial parts — of a massive ordinance package that has been around for nearly four years. All jurisdictions subject to the Growth Management Act (GMA) had to regulate critical areas based on the "best available science" (BAS) — or cite policy reasons for deviating from BAS — by December 2, 2004. At one o'clock on the morning of October 26 of that year, the Metropolitan King County Council had finally passed a controversial Critical Areas Ordinance — actually, a package of three ordinances — designed to comply.
The King County ordinances had aroused a storm of protest from rural landowners, some of whom claimed that the new limits would constitute an unconstitutional taking of their property. The hot issues were the county executive's proposal for a 10 percent limit on impervious surface coverage in rural residential areas, and a requirement that 65 percent of the natural vegetation be left intact, plus requirements for leaving wide wetland buffers.
Some people worried that they would no longer be able to keep horses in rural areas, and that they might no longer be able to perform a number of normal rural activities, such as removing noxious weeds or cutting firewood on their own land.
Councilman Dow Constantine talked about applying a "horse test": Would people still be able to keep horses in rural areas if the ordinances passed? He got the council to approve language that provided more flexibility on clearing, impervious surface coverage, and the widths of buffers along streams and wetlands. Clearing limits vary with the size of the parcel and the system under which it is managed. On a lot five acres or smaller, an owner can clear up to 50 percent of the land. On a lot of 5 to 7.5 acres, an owner can clear 2.5 acres or 35 percent, whichever is greater. If the land is being cleared under a farm plan or rural stewardship plan, those numerical limits may not apply.
That was still too much for some people. Then-King County Councilman Rob McKenna said, "I cannot support these radical measures, which I believe violate the fundamental rights of rural property owners." McKenna, who a week later was elected attorney general, predicted that the ordinances would "unleash a torrent of lawsuits."
Almost immediately, Citizens' Alliance for Property Rights circulated petitions for a county initiative on the measures. The County sued successfully to keep the initiative off the ballot. State courts had long since ruled that a local ordinance enacted to comply with state law couldn't be challenged by a local initiative. The Citizens' Alliance asked the courts to overrule the clear precedent. The courts refused.
That seemed to be that. But it wasn't. The Citizens' Alliance filed the recent case in 2005. A Snohomish County Superior Court judge ruled against the plaintiffs. The appeal has taken this long.
The County argued once again, among other things, that the GMA made them do it. That argument didn't work. The appeals court pointed out that the GMA doesn't require a limit on clearing.
Sims noted that the court hadn't questioned the science behind the clearing limit. That statement was "a little disingenuous," Pacific Legal Foundation attorney Brian Hodges suggests. "We didn't challenge the science."
This has been a bad summer for Best Available Science. At the end of July, the state Supreme Court decided 5-4 that the Growth Management Act, with its requirement for BAS, didn't trump the Shorelines Management Act (SMA) in areas covered by existing shoreline master plans. In 2003, the Central Puget Sound Shorelines Hearings Board had decided that it did. The legislature quickly passed a law to negate the ruling. In this recent case, the Supreme Court majority held that "the legislature meant what it said ... The legislature's clear intent ... reads, 'critical areas within the jurisdiction of the [SMA] shall be governed by the [SMA].'" The dissenters also argued that the law meant exactly what it said: The legislature "intended to transfer protection of the relevant critical areas from the GMA to the SMA [only] as municipalities enact, and Ecology approves, new shoreline master programs. Deciding otherwise does violence to the legislature's clearly expressed purpose." Commenting on the majority decision, People for Puget Sound executive director Kathy Fletcher said, "This surprising interpretation makes it that much tougher to save Puget Sound by 2020."
In August, a unanimous Supreme Court decided that an approved county comprehensive plan is hard to challenge, too. The GMA says that a county must review its plan every seven years. But when a county reviews a plan, the court said, no one can challenge its failure to change the plan in the light of new information, unless those changes are related to changes in the GMA itself.
In effect, 'the science made me do it' was another County argument. But of course, while science should inform policy and regulation, it doesn't dictate them. On the other hand, if one adopts environmental regulations that the science says won't work, what's the point? At any rate, King County maintained that one should start with the science. Hodges disagrees. He maintains that one should start with the Constitution.
Hodges' clients challenged the King County ordinance on both constitutional and statutory grounds. The court didn't have to look beyond the statutes. It said, "RCW 82.02.020 ... generally prohibits counties from imposing 'any tax, fee, or charge' on the development of land." It found that the clearing restriction violated the statute under the state Supreme Court's reasoning in its 2002 Isla Verde decision. In Isla Verde v. City of Camas, the city required a developer to set aside 30 percent of his total area for the benefit of wildlife. The state supreme court held that by imposing this set-aside without determining the development's actual impact, it was in effect imposing a tax, fee, or charge on the development of land.
"We have repeatedly held, as the statutes require, that development conditions must be tied to a specific identified impact of the development on a community," the Supreme Court said. Basing its ruling in part on Isla Verde, the three-judge appeals panel ruled unanimously that "King County has failed in its burden to show that the [critical areas] ordinance falls within any exception to the imposition of those limitations to development. Accordingly, we hold that the ordinance must give way to the state statute."
The County knew all about Isla Verde when it enacted the critical areas ordinances, of course. Hodges suggests that it just tried to limit the effect of that decision. Futurewise planning director Tim Trohimovich suggests that the appeals court misapplied Isla Verde. The city of Camas had required a set-aside for a public purpose. King County had not.
The ruling that struck down the county's clearing limit is "important to both government land use regulators and the development community," according to a news release from the Seattle law firm Foster Pepper. "The decision adds to the growing body of case law interpreting RCW 82.02.020 and the showing that a government must make to support imposing a land use fee or restriction on a proposed development."
The Division I panel also invoked the state Supreme Court's 1994 decision in Trimen v. King County, which cited the U.S. Supreme Court's principle of "rough proportionality." That stems from the landmark 1994 case of Dolan v. City of Tigard. In Dolan, the city of Tigard had conditioned permits for expanding a store and paving a parking lot on dedicating land for a greenway along a creek. The land dedication would help the city control flooding, to which more impervious surface might contribute, and would provide space for a bicycle and pedestrian pathway that would help offset the increased vehicular traffic that might be attracted to an expanded store.
The court found that there was a constitutionally-required nexus between impervious surface and flood control, and between extra traffic and a bicycle/pedestrian path. (The idea of a nexus stems from the Supreme Court's 1987 Nollan ruling.) But that wasn't the only constitutional question. As the court explained in its case syllabus, it also asked "whether the city's findings are constitutionally sufficient to justify the conditions imposed on Dolan's permit." It explained, "the necessary connection required by the Fifth Amendment is 'rough proportionality.' No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the proposed development's impact."
If land use regulations require individual determinations of impact — except, perhaps when dealing with large developments — then obviously, we're not going to have a whole lot of regulation. Hodges suggests that since each project must already go through an individual permitting process, bureaucrats can make an individual determination of impact at that time. Trohimovich says that if government really did assess impact on an individual basis, then the first person who wanted a permit to clear or pave land in a watershed could do virtually anything he pleased — the first developer presumably wouldn't cut more than 35 percent of all the vegetation or pave more than 10 percent of all the land — and later permit applicants would be able to do virtually nothing. That would present equity problems, and possibly takings problems, of its own. Commenting on the appeals court decision, Sims said, "If this ruling stands, it will have far reaching and negative impacts on local governments' ability to regulate land use."
And that would suit some people just fine. The Pacific Legal Foundation's press releases raised the issue of urban-rural equity: the idea that rural residents shouldn't be forced to atone for the environmental sins of the cities. The foundation argued that the ordinance "forces rural property owners to pay to protect the environment from urban land uses in stream and river areas."
It noted that the "set-aside requirement is automatically imposed on all rural lots, whether or not a specific development project will have any effect on a stream or river environment ... This case presents a classic example of a policy decision to shift the costs and burdens of mitigating harms created by the cumulative impact of development onto a discrete group of property owners."
Asked about rural-urban equity while the critical areas ordinances were still being developed, Sims said that well, urban dwellers paid their share by just living in cities. In terms of actually protecting habitat and open space, living in cities is probably the best thing they can do. The more people live in the cities, the fewer McMansions destroy habitat and disrupt natural water flows out in the sticks. But exactly how much of a conscious sacrifice are all those urban condo-dwellers making? In terms of perceived equity, their willingness to live in cities just doesn't cut it. Whether or not the county wins its appeal, we'll see the property rights advocates back in court.