Rural property owners win one


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 impact.

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.

Brian 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 Councilman.



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