Earlier today, Washington’s Supreme Court denied PLF’s petition for review in Olympic Stewardship Foundation v. Western Washington Growth Management Hearings Board, a case that casts a shadow of doubt over the role that science plays in land use planning. The Court’s refusal to hear the case adds to the growing conflict and confusion about property rights in Washington state.
The OSF case arose from Jefferson County’s decision to adopt so-called “channel migration zone” rules that require property owners to preserve 100% of the vegetation on their river valley properties as a condition on any new development permit. The county’s decision to impose the retention standard was not fully explained, and extremely suspect in light of the county’s science, which concluded that vegetation retention would be the least effective method for protecting property from the risk of migrating river channels.
Nevertheless, the Court of Appeals held that nothing in the law requires the county to document its reasons for departing from the recommendations of its scientific studies; it only needs to demonstrate that it consulted (then ignored) the studies before adopting land use policies that are ruinous for the region’s homeowners.
PLF attorneys argued that the Court of Appeals’ view of the role of science in planning cannot be what the legislature intended when it directed counties to consider “best available science” in developing critical areas regulations. Indeed, when other Washington courts have considered this question in the past, they have emphasized the importance of using best available science as a way to establish the necessary foundation to support development regulations that will protect environmental functions without unnecessarily restricting the use of private property.
To achieve that balance, it is necessary that the government document how and why it adopted its preferred regulatory standard. That is a simple standard that we have all learned since elementary math: show your work.
Read entire Pacific Legal Foundation post by Brian T. Hodges