Brian T. Hodges
Managing Attorney, Pacific Northwest Center
Almost a century ago, Justice Holmes warned “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”
This warning is particularly relevant to government’s desire to impose critical area buffers on private property. Mandatory, big buffers take away a landowners right to use and develop his or her property. More than that, many buffer regulations impose a duty on each affected landowner to put his or her land to a public use to enhance the environment. There is a very real conflict brewing between the government’s desire to take private property for critical area buffers and landowners’ right to use their land as a traditional residence (house, deck, lawn, etc.).
Unfortunately, although our Supreme Court recently rebuffed environmentalist attempts to impose mandatory buffers on agricultural land, the Court has not shown any interest in resolving this conflict on residential properties. Earlier this month, Washington’s Supreme Court declined to consider the constitutionality of big, mandatory buffers in the case, Kitsap Alliance for Property Owners v. Central Puget Sound Growth Management Hearings Board. This is the fourth time in recent years that the court has either refused to consider or avoided this issue.
The KAPO case arose 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 and KAPO asked why the County chose 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, this 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.
For more information, please visit PLF’s website, or contact Brian Hodges at 425-576-0484.