Breaking News: Court of Appeals Says Critical Area Regulations are Valid

2012 Ordinances Upheld

— from Randall Gaylord —

On Monday August 10, three judges at the Court of Appeals upheld the County’s four critical areas ordinance that was started in 2006 and adopted in 2012. The thirty-page court decision doesn’t make for light reading, but the subject is among the most important and controversial activities of local government – land use.

Prosecuting Attorney Randall Gaylord praised deputy prosecutor Amy Vira and the staff who vigorously defended the ordinances against challenges made by experienced and seasoned land use lawyers. Gaylord said that the huge number of issues and the record developed over six years made this the most difficult land use case the office has handled.

Gaylord said, “my hope for the parties and the community is that they are satisfied by the fact that seven decision makers have now ruled that the County used a reasoned, logical and legal approach to these regulations.”

“Critical areas” are wetlands, areas that feed aquifers for potable water, fish and wildlife habitat conservation areas, floodplains and geologically hazardous areas. The challenged ordinances imposed limits on development near critical areas and required buffers based upon a comprehensive study of the effect of development near critical areas.

This is the third decision upholding the regulations. The first decision was made by three members of the Growth Management Hearings Board.

Gaylord said two organizations with opposing views on the adopted ordinances presented their case to the County Council and then to the Growth Board and then to the Courts. The Friends of the San Juans (Friends) raised 52 issues for review and Common Sense Alliance (the Alliance) raised 27 issues for review. Orcas Island resident John Evans and San Juan Island resident William Wright also raised issues to the Growth Board. The Growth Board only found in favor of the challengers on a few issues.

The next level of appeal was to the Superior Court where Judge Donald Eaton issued a “thorough memorandum” upholding the Growth Board on each issue raised.

Then, the case continued to the Court of Appeals in Seattle where Friends and the Alliance renewed their objections.

The Court of Appeals directly addressed topics that were important throughout the adoption process.  The Court said the ordinances were not a “taking” contrary to the United States Constitution, because the buffers are like setbacks in zoning regulations where the owner retains all authorized uses, and can exclude others from occupying the property.

The Court noted that the Alliance did not properly characterize the ordinances as a “one size fits all” set of regulations.  Instead the “site specific flexibility was built into the ordinances through exemptions, buffer averaging, and the reasonable use exemption.”  Moreover, the ordinances included step-by-step instructions to determine when a buffer is necessary and what its width should be.

The Alliance interpreted the law to require that every critical area be mapped before the County could adopt regulations but the Court disagreed and concluded “mapping is not required.”

All of the arguments made by the Friends were also rejected because they failed to show that the Growth Board erred legally or by failing to rely on sufficient evidence for its decision.

A copy of the decision is available HERE.