CSA asks the Supreme Court of the United States—Can a county turn your land into a water treatment facility without paying?
[Posted with permission from the PLF Liberty Blog]
May 11, 2016, Tony Francois
On May 9, 2016, the Pacific Legal Foundation filed this petition in the Supreme Court of the United States, asking the court to decide whether the government can make shoreline property owners give up part of their land to serve as water quality buffers for the surrounding community. This case, Common Sense Alliance v. San Juan County, deals with a perennial problem that property owners face. Government jurisdictions require permits to develop property, and use that authority as leverage to take property which they would otherwise have to pay for. The Supreme Court has aptly described this as an “out-and-out plan of extortion.“
The Fifth Amendment to the U.S. Constitution requires just compensation when the government takes private property. Many Supreme Court decisions hold that the government may only demand property from a permit applicant when necessary to mitigate a harm that the proposed project would cause. PLF litigated some of the most important of these cases. Nollan v. California Coastal Commission, 483 U.S. 825 (1987), holds that government may only demand property as a condition of permit approval if there is an essential nexus between the demand and some harm that the project would cause. Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013) holds that this requirement applies to demands for money or services, just as it does to real property interests, and confirms, as the Court previously held in Dolan v. City of Tigard, 512 U.S. 687 (1994), that the government must also prove that the demand is roughly proportional to the impact.
In Common Sense Alliance, the Washington State Court refused to apply Nollan and Dolan to a San Juan County buffer exaction because it was imposed by a generally applicable ordinance instead of made up on-the-fly by a land use planner. PLF is asking the Supreme Court to clarify that Nollan, Dolan, and Koontz prevent government from extorting property owners seeking permits, even when the property demands result from generally applicable ordinances, and even if the demanded property would be useful for general government purposes.
PLF attorneys ask Washington Supreme Court to protect property owners from San Juan County land grab
October 2, 2015
Washington’s “growth management” approach to regulating land-use adjacent to environmentally sensitive areas relies almost exclusively on presumptions and generalizations—demanding that landowners dedicate oversized buffers based on assumed impacts rather than any actual determination that a proposed development will or will not result in negative impacts. That approach results in a conflict between a landowner’s right to the continued use of his or her property as a traditional shoreline residence (e.g., lawn, home, deck, access to beach) and the government’s desire to put their private property to use as an undisturbed natural vegetation area designed to enhance and restore the environment.
Over the years, PLF has championed the constitutional principal that government cannot compel land dedications as a mandatory condition on permit approvals without first demonstrating that the dedication is necessary to mitigate for some negative impact caused by the proposed development. PLF began writing the latest chapter in this ongoing struggle today, filing a petition for review with Washington’s Supreme Court in Common Sense Alliance v. Growth Management Hearings Board.
The case involves a challenge to San Juan County’s newly updated critical areas ordinance, which conditions the issuance of new land-use permits on shoreline properties upon the owners’ dedication of a significant portions of their land as conservation areas designed to mitigate for all pollution entering and crossing over the shoreline properties, including pollution/storm water caused by neighboring land uses (including public roads).
October 2, 2015
There’s an interesting issue lurking in PLF’s petition for review in Common Sense Alliance v. Growth Management Hearings Board: Is a conservation buffer an interest in real property?
Briefly about the case: Common Sense Alliance involves a challenge to San Juan County’s newly updated critical areas ordinance, which conditions the issuance of new land-use permits on shoreline properties upon the owners’ dedication of a significant portions of their land as conservation areas designed to mitigate for all pollution entering and crossing over the shoreline properties, including pollution/storm water caused by neighboring land uses (including public roads).
As you may have read here, PLF attorney’s have filed a petition arguing that the critical areas ordinance violates the “essential nexus” and “rough proportionality” standards of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard(1994), which hold that the government cannot condition approval of a land-use permit on a requirement that the owner dedicate private property to the public, unless the government can show that the dedication is necessary to mitigate impacts caused by the proposed development.
But there’s an interesting question standing in the wings. Is the government demanding a dedication of land to the public when it requires that permit applicants set aside a conservation buffer? Washington’s Court of Appeals said “no” in its decision in this case. But it didn’t provide any reasoning for its conclusion beyond stating that a buffer did not look like a traditional easement—nor could it have done so convincingly, given that it had previously answered the same question in the affirmative in an identical challenge. So, what’s the right answer?
Well, that may take a moment or two to ferret out.