property owners win one
HODGES AND STEVE HAMMOND
Almost four years ago, urban
area members of the King County Council launched an outrageous assault on
property owners in the unincorporated areas of rural King County.
Over opposition from some of
their council member colleagues and the overwhelming majority of those who
actually would have to live under the rules, the council enacted the Critical
Areas Package, which in part ordered rural landowners to set aside 50 percent
to 65 percent of their property as untouched natural resource areas.
King County claimed its massive
land grab was intended to address environmental concerns and was required by
the Growth Management Act. However, by 2004 the county had already updated its
regulations on at least three previous occasions and a report showed existing
regulations were already achieving desired environmental goals.
The county overreached its
authority when it enacted its mandatory set-aside regulation. Washington law is
clear on this point -- the county bears the strict burden of proving that an
owner's proposed use will in fact cause some harm before it can limit the use
of the property.
Let's suppose a homeowner on 10
acres wants to add a carport beside the house. According to the clearing and
grading ordinance, that landowner would have to agree to dedicate 6.5 acres of
the property for what amounts to open space to get a building permit.
In ruling that the clearing and
grading provisions of the CAP are unlawful, the court concluded that the actual
impact of the carport had to be considered before the county could restrict
development or mandate that 65 percent of the property be set aside as open
space. The county violated the law by pre-determining that all development --
whether a carport, clearing for pasture or a house -- had the exact same
The court got it right when it
said King County's "one size fits all" approach was really a tax, fee
or charge and, therefore, illegal.
In challenging CAP, Pacific
Legal Foundation and Citizens Alliance for Property Rights fought to uphold a
doctrine that America's founders considered fundamental to freedom: Acquiring,
owning and making reasonable use of private property is not a privilege given
by government; it's a fundamental right. That's why federal and state
constitutions limit the power of regulators to tell private property owners
what they can and can't do on their land; and that's why government cannot
seize property for public use without "just compensation," per the
Fifth Amendment of the U.S. Constitution. The Washington constitution is even
more explicit on this point.
Most people understand the
concept of eminent domain. If the public good is served by building a road
across private property, that property must be purchased. It cannot just be
confiscated. But environmental regulators have tried to do an end run around
eminent domain by forcing landowners to forfeit use of their property while
retaining title. This has been an egregious attempt to get a public good
without a public cost.
That's why the Court of
Appeals' decision is not only a victory for the county's rural property owners,
but a victory for the rule of law, which does not endorse an "ends
justifies the means" strategy for land use regulation.
T. Hodges is an attorney in Pacific Legal Foundation's Bellevue office who
represents the Citizens Alliance for Property Rights. Steve Hammond is the
president of Citizens Alliance for Property Rights and a former King County