Washington Supreme Court

Washington Supreme Court gives local land use planning a “benevolent gesture”

By: Brian T. Hodges,  Attorney for Pacific Legal Foundation

Yesterday, Washington’s Supreme Court issued a short decision in Citizens for Rational Shoreline Planning v. Whatcom County, ruling that the State Department of Ecology is the entity ultimately responsible if a local government’s shoreline master program violates the law.  A simple proposition that brings with it chilling ramifications for local, representative government.

A brief history is necessary for context.  Back in 1971, Washington enacted the Shoreline Management Act (SMA), Ch. 90.58 RCW, to address the perceived problems associated with the uncoordinated development of shorelines.  The SMA was intended to manage all reasonable and appropriate uses of the shorelines of Washington State, and to prevent adverse effects to public health, the environment, and the rights of navigation.  The Act’s policy statement reads that “the shorelines of the state are among the most valuable and fragile of its natural resources and there is great concern throughout the state relating to their utilization, protection, restoration, and preservation.”  To achieve these goals, each county and city containing “shorelines of the state” is required to develop a shoreline master program (SMP) setting forth use and development regulations for shoreline areas and incorporating the current shoreline guidelines as promulgated by Ecology.

Fast forward several decades.  The legislature amended the SMA to provide more local discretion in developing shoreline regulations as part of an effort to integrate all of the State’s environmental statutes.  While Ecology retained oversight and approval roles, the legislature stated that, once approved, “the shoreline master program for a county or city adopted under chapter 90.58 RCW, including use regulations, shall be considered part of the county or city’s development regulations.”

We all took this statement at face value – especially local governments and citizens who have sunk years and countless dollars into developing locally appropriate development regulations.  But there was a snag in the fabric.  And when tugged, it all unraveled.

Citizens for Rational Shoreline Planning (CRSP) filed a lawsuit challenging some of the mandatory development restrictions in Whatcom County’s SMP.  CRSP argued that the SMP required that all property owners set aside preset amounts of land in exchange for permit approvals in violation of RCW 82.02.020, as interpreted by PLF’s landmark victory in Citizens’ Alliance for Property Rights v. Sims, 145 Wn. App. 649 (2008).  The problem was that RCW 82.02.020 only applies to development conditions imposed by local government, it does not restrict the state.  Ecology intervened in CRSP’s lawsuit, arguing that the County’s SMP was a state law regardless of the amount of time, effort, and discretion that Whatcom County put into developing the regulations.  This argument ultimately won the day.  Every court that reviewed the case agreed that local SMPs constitute state law.

The ruling is not a big deal for citizens wanting to bring a challenge like CRSP did.  RCW 82.02.020 may not be available any more when challenging shoreline regulations, but that doesn’t matter.  The statute merely incorporates the constitutional nexus and proportionality tests set out in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994).  The Supreme Court’s ruling simply instructs land owners in CRSP’s position to name Ecology as a defendant and assert a constitutional violation in lieu of RCW 82.02.020.

Where the Supreme Court’s decision will have the most profound effect is in city hall.  The average city or county spends several years developing an SMP update.  During this time, it expends thousands of hours of staff and volunteer time, hundreds of thousands of dollars in research, and holds hundreds of hours of public meetings.  All of this is necessary to develop a comprehensive and locally appropriate regulatory scheme.  Multiply that by the 260+ jurisdictions that are required to update their plans over the next few years and you can begin to see the massive local effort being undertaken across the state.

But according to the Supreme Court this massive local effort is a meaningless, feel-good exercise:  “The involvement of local jurisdictions in the SMP process is a benevolent gesture by the state.”  Ultimate control, the Court explained, lies in the unelected and politically appointed bureaucrats in the Department of Ecology.

This ruling should not sitwell with the elected officials, planners, attorneys, staff, volunteer commissioners, public participants, and citizens of each and every city and county in the state.

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