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Home / Washington Business - January 2006 / Legal Matters: Fighting for Private Property Rights |
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Legal Matters: Fighting for Private Property Rights |
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Written On: January 2006 |
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Written By: by Chris McCabe - Governmental Affairs Director for Environmental Policy |
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Some local governments in Washington appear to have adopted a "what’s-mine-is-mine-and-what’s-yours-is-mine" mentality regarding private property. As a result, AWB members and other land owners are subjected to increased regulation, which devalues private property and restricts owners’ rights and uses. The Growth Management Act (GMA) is ripe for reform given recent actions by private property advocates and Gov. Christine Gregoire’s 2006 legislative package.
The GMA was enacted in the early 1990s due to concerns about uncoordinated and unplanned growth, particularly in urban areas. It was adopted to address Washington’s patchwork of land-use laws and the need to balance business and private property ownership interests with urban sprawl and other environmental concerns. The GMA lists 13 goals for local governments to consider when adopting comprehensive plans. Included is the protection of private property from regulatory takings without just compensation. The Act also provides for protection of the environment.
Recognizing Washington’s diversity, the Legislature crafted the GMA to be implemented from the bottom up, meaning the real power would be vested in local jurisdictions. These jurisdictions would address regional differences by adopting comprehensive plans specific to the area. Based on GMA-mandated timelines, comprehensive plans are currently being modified around the state, but in the process some local jurisdictions are going too far with critical area ordinances. Protection of the environment is in the best interest of the citizens of this state, but not at the expense of government taking a disproportionate amount of private property.
Two major problems exist. The first is the notion that local governments must include Best Available Science (BAS) when adopting Critical Area Ordinances (CAOs) plans and regulations. Unfortunately, the Legislature did not define either "include" or "BAS." Thus some local governments exploit this uncertainty to expand buffers based on liberal definitions of BAS. A prime example occurred when Thurston County expanded existing 75-foot setback buffers to more than 200 feet, providing excessive protection for the critical areas at the expense of land owners.
Another major problem is the deference given to the Growth Management Hearings Boards. Local jurisdictions often fear appeals and lawsuits by environmental groups. GMHBs often override local jurisdictions’ decisions based purely on policy decisions, not on the law. This "top down" approach departs from the "bottoms up" intent of the Legislature.
A handful of counties continue using liberal definitions of BAS in an attempt to deprive land owners use of their property. In rural Washington, land owners typically bear the brunt of these enlarged setbacks when new CAOs are adopted. In response, the Washington Farm Bureau has announced that it will run a Property Rights Initiative in 2006. AWB will provide input to the Farm Bureau as the initiative is prepared. Of paramount importance will be avoiding the legal pitfalls Oregonians fell in to when Measure 37 was judged unconstitutional last October. That matter is currently pending appeal.
Gov. Gregoire responded with her own proposal, a four-part GMA update package that attempts to partially remedy existing GMA problems. The package includes:
• Assist local governments in including best available science in the development of critical areas’ policies and development regulations.
• Provide local governments with better flexibility to schedule GMA updates within a specific window of time and allow for better alignment of multiple planning requirements.
• Expand the types of activities allowed on agricultural lands.
• Respond to the U.S. Supreme Court’s ruling in Kelo v. City of New London to ensure that Washington’s government may not use eminent domain to take private property for private use, except under very narrow exceptions.
In response to input from AWB and other stakeholders, the governor withdrew two bills from her initial package. The first bill would have consolidated the three Growth Management Hearings Boards into one based in Olympia, and the second bill would have attempted to clarify the status of pre-existing uses located within and adjacent to critical areas. A third bill relating to agricultural pilot projects has been recommended as a budget proviso.
Although the governor’s efforts in remedying problems with the GMA are laudable, many of these proposals miss the mark. AWB is actively involved in discussions with the governor’s office pertaining to this GMA package and will continue to comment on and monitor this and any other land use proposals that may come before the Legislature.
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