Kitsap County’s shoreline land grab appealed to U.S. Supreme Court.

Kitsap County is violating the Fifth Amendment by forcing any shoreline property owner who wants a land use permit to surrender control over all of his or her land from the water line to as much as 100 feet inland.

So argues a petition to the United States Supreme Court that has been filed by attorneys with Pacific Legal Foundation, on behalf of a local organization of landowners and business people, the Kitsap Alliance for Property Owners (KAPO).

The petition for certiorari asks the Supreme Court to review the county’s “shoreline buffer” rules that impose rigid, inflexible environmental-conservation easements on private property when land use permits are sought — without paying the owners any compensation.

KAPO includes property owners who also would have land seized from them in this way if they need to apply for some kind of permit for work on their property. PLF is the leading watchdog that litigates for limited government and property rights, in courts nationwide.

Taking without paying

Enacted through the county’s 2005 Critical Areas Ordinance, the rules impose uniform buffers of 100 feet for rural shorelines and 50 feet for urban shorelines.

When a shoreline property owner seeks a building permit or needs to do something on the property that requires county permission, the owner must agree to dedicate a buffer as an environmental conservation area, maintain the area as native vegetation, and allow government officials on the property to inspect.”

The Fifth Amendment is clear,” said Brian T. Hodges, managing attorney with Pacific Legal Foundation’s Pacific Northwest office in Bellevue, Washington. “Private property can’t be taken for public use without ‘just compensation.’

The government can’t use the permit process as an excuse to take someone’s land without paying for it. And government can’t put conditions on permits that aren’t related to specific impacts of the proposed land use project. Kitsap County is violating these bedrock principles, so we’re asking the Supreme Court to step in.”

“Property owners are stripped of control, without a penny in reimbursement,” said Hodges. “But they aren’t relieved of paying property taxes, or liability if something happens on the land. In effect, they’re forced to be unpaid administrators of public conservation areas.”

The Supreme Court says no to one-size-fits-all permit conditions

A Pacific Legal Foundation case, Nollan v. California Coastal Commission, is the landmark U.S. Supreme Court ruling establishing that government can’t make unrelated demands as the price of permits or other regulatory actions.

The court followed up, in Dolan v. Tigard, by requiring that the link between a permit condition and the proposed land use project be roughly proportional.

“Demanding the same, one-size-fits-all dedication as the price for any and all building permits is the direct opposite of the constitutional rule,” said Hodges. “Regulators have to tailor their demands to the proposal under consideration, not staple a carbon-copy condition to every permit application.”

“These buffer demands are so unbending, so unthinking, so divorced from the facts on the ground, that they’re the same whether the applicant owns half an acre or 15 acres, seeks to build a mansion or a front porch,” said Hodges.

The Washington Court of Appeals upheld the Kitsap County buffer rules on the grounds that scientific studies pointed to a general need for more environmental conservation areas. But, as PLF’s petition to the Supreme Court points out, this flouts the mandate that permit conditions be fashioned on a one-by-one basis.

“Even if there is a general need for environmental conservation areas, the permit process can’t be used as a end-around eminent domain, to grab easements without paying for them,” Hodges said.

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation (www.pacificlegal.org) is the leading legal watchdog organization that litigates for limited government and property rights. PLF’s Pacific Northwest office is located in Bellevue, Washington.

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