Earlier today, the Pacific Legal Foundation filed a petition for a writ of certiorari with the U.S. Supreme Court in the case, Kitsap Alliance for Property Owners v. Central Puget Sound Growth Management Hearings Board. The petition asks the Court to review a Washington appellate decision holding that a city or county can force landowners to dedicate large tracts of private property to public use, without providing just compensation, so long as the government can show that its use of the land will provide the public with an environmental benefit.
This decision marks a stunning departure from decades of U.S. Supreme Court case law, which has repeatedly warned that, standing alone, a strong public desire to improve public conditions has never been sufficient to justify the government’s appropriation of private property.
In 2005, Kitsap County updated its critical areas ordinance to classify every inch of its 269 miles of marine shoreline a “fish and wildlife habitat conservation area.” This classification had a direct and adverse impact on every shoreline property owners, because it meant that the county would treat every shoreline lot, regardless of development and geological condition, as an environmentally sensitive area subject to mandatory environmental protections. Specifically, the ordinance forces every one of the county’s 7,000 shoreline property owners to dedicate either 50 or 100 feet of his or her shoreline as an “undisturbed natural vegetation area” to provide buffers for fish habitat any time he or she seeks a permit.
The County justified its massive land grab by referring to a collection of generalized academic studies, journal articles, conference papers, and agency opinions, commenting on the general range of benefits that a fully vegetated and undeveloped shoreline could potentially provide to the marine environment. The studies, however, did not comment on the actual environmental and geographic conditions on the County’s shorelines, and did not consider any site specific variables, such as existing vegetation and land uses, when developing its buffers. And the County never filled this gap between its general conclusions and the actual conditions on its shoreline. Instead, the County simply demanded that each property owner dedicate a preset buffer without ever knowing whether its buffer is warranted.
Because Kitsap County chose to use the permit process as the mechanism to compel landowners to dedicate shoreline buffers, it was required to comply with the U.S. Supreme Court cases, Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994). Together, these cases created the essential nexus and rough proportionality regulatory takings tests, which require the government to demonstrate that a sufficient relationship exists between the permit application and the buffer dedication. If the buffer dedication is not limited to only that amount of land necessary to mitigate for an environmental impact caused by the proposed use, then the government is merely using the permit process to shift the general public’s burden of paying to improve environmental conditions onto a select few property owners. In this circumstance, the buffer dedication is unconstitutional and invalid.
In a decision issued earlier this year, Washington’s court of appeals departed from this well-settled constitutional doctrine, holding that whenever a government relies on science – regardless of how generalized – it does not need to show that the dedication is required to mitigate for the proposed development. All the government needs to show is that its appropriation of property will provide a public environmental benefit.
This decision leaves the proverbial fox to guard the henhouse. There is almost no limit to the reach of theoretical environmental studies. Indeed, the studies that Kitsap County relied on variably concluded that buffers ranging anywhere from 35 to 600 feet in size could provide an environmental benefit. Under the Washington court’s decision, the County would have free rein to take any amount of land within that range without paying compensation.
PLF’s petition points out how far the Washington court strayed from the protections provided by the Takings Clause of the Fifth Amendment of the U.S. Constitution. The purpose of the Takings Clause is to protect against regulations that force “some people alone to bear public burdens, which in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40 (1960). A rule like that adopted by the Washington court of appeals does not consider the actual burden that a regulation places on affected property owners, and as a result, tells us nothing about whether the cost of preserving the marine environment should be placed on a handful of shoreline property owners, or should be shared by the general public. Under the Washington decision, the landowner’s rights are written entirely out of the equation.
Requiring every shoreline property owner to dedicate big buffers may be the easiest way for government to protect environmentally sensitive areas, but that does not mean the buffers are necessary – let alone constitutional. For over five years, PLF has been arguing that Kitsap County’s decision to impose identical buffer dedications on every permit application makes no sense and violates the Constitution. We are hopeful that the U.S. Supreme Court will recognize that the Washington court created a rule that circumvents the protections of the Takings Clause and overturn the court of appeals’ decision.
by Brian T. Hodges, Pacific Legal Foundation