“Big Buffer” petition filed by KAPO

from Brian Hodges, Pacific Legal Foundation

I am writing to let you know that PLF just filed the attached petition for review seeking to challenge the critical area “big buffer” scheme to Washington’s Supreme Court.

The petition was filed earlier today requesting that the Supreme Court take review of the Court of Appeals’ decision, Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board (Div. II Nos. 38017-0-II and 38087-1-II, Jan. 4, 2011).

I am asking that you and your organization consider filing amicus briefs in support of the property owners’ petition to assure that this case is considered by the Supreme Court. 

Brief Factual Background

In 2005, Kitsap County amended its critical areas ordinance to require that every marine shoreline landowner set aside significant portions of his or her property as “undisturbed natural vegetation areas” to provide buffers for fish habitat.

The fish habitat buffers are automatically imposed as a mandatory condition on any new application for shoreline development. The size of the buffer is determined solely on the property’s classification: urban areas are subject to 50-foot buffers, while rural and semi-rural areas are subject to a 100-foot buffer (based on 2007 revisions to its CAO).

KAPO opposed the marine shoreline buffers, arguing that the buffers failed to comply with the Growth Management Act’s “best available science” requirement and violated the constitutional essential nexus and rough proportionality tests, as incorporated by RCW 82.02.020.

Specifically, KAPO argued that Kitsap County’s decision to impose the exact same buffer restrictions on fully-developed lots (e.g., residential communities, commercial properties) as it imposed on undeveloped parcels was unsupported by science in the record, which only addressed the functions and values that can exist on undeveloped property.

Despite science recognizing that fully-developed residential lots have different functions and values than undeveloped lots, and recommending a site-specific approach to regulating marine shorelines, the Board concluded that the GMA required the County to err on the side of imposing prescriptive buffers that are larger than necessary. This conclusion was upheld by the trial court and Division II of the Court of Appeals.

Issues Raised in Petition for Review KAPO’s petition raises three issues. Two are related directly to the “big buffer” issue, and the third relates to the Legislature’s enactment of EHB 1653 which retroactively amended the GMA to overrule Futurewise v. WWGMHB:

1. Kitsap County’s critical areas ordinance imposes prescriptive buffers that are larger than necessary to protect the actual functions and values on developed shoreline lots. The Growth Board’s conclusion that the County should err on the side of large buffers conflicts with Supreme Court and Division I decisions and raises an issue of great public importance.

2. The Growth Board and Court of Appeals’ decisions to uphold the County’s uniform and preset buffer restrictions raises an important constitutional question under the essential nexus and rough proportionality tests, as incorporated by RCW 82.02.020, which require that conditions on development be related in nature and extent to the projected impact of a proposed development.

3. Washington’s Legislature intended that Engrossed H.B. 1653 (Chapter 107, 2010 Laws) overturn a final, plurality decision of this Court. The Court of Appeals’ conclusion that the separation of powers doctrine only protects precedential judicial decisions from legislative interference conflicts with a decision from the U.S. Supreme Court and raises an important constitutional issue.

Request for Amicus Support

Throughout this case, Kitsap County has had briefing support from multiple environmentalist organizations, tribes, and government agencies. I think that it is time for the Court to hear from affected property owners from across the State.

In addition to addressing some of the legal issues, I think that the Supreme Court would benefit from a discussion regarding the real world impact of “big buffers” on property owners.

Amicus briefs in support of a petition for review are due 60-days after filing of the petition, which will be June 5, 2011. They are limited to 10 pages, and should focus on the reasons why Supreme Court review is warranted (per RAP 13.4).

Please let me know if you or your organization will file an amicus in support of Kitsap County’s landowners.

Brian T. Hodges
Managing Attorney
Pacific Legal Foundation – www.pacificlegal.org
Pacific Northwest Regional Office





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