— from Jane Cable, Common Sense Alliance —
The Pacific Legal Foundation (PLF) has today filed an Amicus Curiae Brief with the San Juan County Superior Court in support of Common Sense Alliance (CSA) and P.J. Taggares challenges to the Final Decision and Order of the Growth Management Hearings Board.
The brief is one of those rare legal documents that is easy to read, relatively short, and tells the story without the need for a dictionary and a J.D. degree. It says, in no uncertain terms, that the water quality buffer regime that is fundamental to the San Juan County Critical Areas Ordinance passed in December 2012 creates an unconstitutional burden on the development of property.
The brief takes the reader easily through the concepts of “essential nexus” and “rough proportionality” which have been found by the United States Supreme Court to mean that there must be a relationship (nexus) between an identified problem (e.g. pollution) and a proposed solution (buffers); and that the proposed solution imposed by government must be roughly proportional to the extent of the impact of the identified problem.
PLF’s brief makes it clear that the water quality buffers in the CAO are imposed without regard to an identified problem or the extent of any development (no nexus) and the buffer sizes are not proportional to the perceived harm or impact (no proportionality).
This clear, concise brief deals with one of the CAO challenges that CSA has raised. If you desire to understand CSA’s entire case, please read Sandy Mackie’s primary brief.
We are fortunate to have the help of an appellate group like Pacific Legal Foundation. It could cost a fortune for an individual property owner to resolve these constitutional issues in order to build their home near the shore of our islands. We are in this fight because we feel that it is the right thing to do.
It should be noted that the Growth Management Hearing Board stated in the decision being appealed:
“While the Board has jurisdiction to consider challenges based on RCW 36.70A. 020(6), [Goal 6], it lacks authority and jurisdiction over constitutional challenges. By now that should be well known and understood.Yet another thorough analysis of that jurisdictional lack is not warranted.
That conclusion also applies to the ―nexus and proportionality‖ claims; those tests do not appear in the GMA. Rather they originate in U.S. Supreme Court decisions considering the takings clause. Alleging violations involving nexus and proportionality are requests for the Board to consider constitutional claims. The requests will not be honored.”
Thank you for continuing to fight for our rights CSA & Taggares.