Tuesday, July 8, 2008 - Page updated
at 07:11 AM
County's rural-land restrictions go too far, court rules
Seattle Times staff reporter
In a case that could determine how far
local governments can go in limiting forest-clearing across entire watersheds, a
state appeals court ruled Monday that a King County law went too far.
Rural property-rights advocates hailed
the decision as repudiating excessive regulation, while environmentalists said
it could degrade some of the county's most pristine streams and further
jeopardize Puget Sound's threatened chinook salmon.
A three-judge Court of Appeals panel
ruled that the 2004 clearing and grading ordinance — part of a package of
laws collectively but imprecisely called the critical-areas ordinance —
is an indirect but illegal "tax, fee, or charge" on development.
Before the county restricts how much
land a property owner can clear for lawn or pasture, the unanimous court said,
it must show that the clearing of that property would cause some kind of harm.
One of the most far-reaching laws of
its kind, the ordinance prohibits landowners from removing vegetation from more
than half of a property larger than 1-¼ acres or more than 35 percent of a
property of five acres or more.
The Citizens' Alliance for Property
Rights (CAPR) and five landowners sued in 2005 to overturn the law, which was
adopted by the Metropolitan King County Council on a 7-6 vote along party
"I am a happy man today,"
said Steve Hammond, who voted against the ordinance as a Republican council member
and is now president of CAPR. "The civil rights of the rural folks have
been upheld. I think there are a lot of problems with the critical-areas
package of ordinances, but the most egregious problem was addressed today by
Rodney McFarland, who was CAPR
president when the suit was filed, said the law, a "one-size-fits-
Kathy Fletcher, executive director of
People for Puget Sound, was among environmentalists dismayed by the court's
"The ordinance was critical to
the county's ability to maintain healthy watersheds and that — the
stormwater issue — is one of the key issues for the health of Puget Sound
as well," she said. "This is a ruling that, if it's upheld, is going
to make it very much more challenging to restore the health of Puget
The law was written after county
biologists compiled scientific studies, some of which said the health of
streams seriously deteriorates when 30 percent of a watershed's forest cover is
Appeals Court Judge Ronald Cox, in an
opinion endorsed by colleagues Susan Agid and Anne Ellington, wrote that state
law restricting taxes on development prohibits the county from limiting
development without showing the effects of the specific proposal.
"The plain language of the
statute does not permit conditions that are reasonably necessary for all development, or any potential
development," Cox wrote.
The judges rejected King County's
argument that the county ordinance was legal because it followed the state
Growth Management Act's mandate that local governments use "best available
science" to regularly update ordinances that restrict development around
critical areas such as streams, wetlands and steep hillsides.
County Executive Ron Sims, who
proposed the clearing restrictions, issued a written statement saying he was
"very disappointed" with the ruling, which he said "fails to
recognize that these clearing limits help recharge groundwater used by property
owners for their drinking water" and help prevent floods.
Sims said the ordinance remains in
effect while the county decides whether to appeal Monday's court ruling to the
state Supreme Court.
County Council Democrats Julia
Patterson, Dow Constantine, Larry Phillips and Larry Gossett said in a joint
statement that regulating properties on a site-by-site basis "would be
burdensome and expensive" for the county and for landowners. Democrat Bob
Ferguson declined to comment before reading the court ruling, council spokesman
Frank Abe said.
The council's four Republicans
welcomed the court decision. "Small-property owners — not the county
— are the best stewards of the land," said Councilmember Reagan
Dunn, adding that the clearing ordinance "was a blunt instrument used to
strip residents of their property rights."
206-464-2105 or kervin@seattletimes