— from Ed Kilduff for the Common Sense Alliance —
Can San Juan County Turn Your Land Into a Waste Treatment Facility Without Compensation?
On May 10, 2016, the Pacific Legal Foundation (PLF) submitted a Petition for Writ of Certiorari to the U.S. Supreme Court (SCOTUS) on behalf of the Common Sense Alliance (CSA). CSA is petitioning SCOTUS to review the constitutionality of various provisions of San Juan County’s Critical Areas Ordinances (CAOs), particularly questioning whether the County’s CAOs violate the Fifth and Fourteenth Amendments because of its property set-aside mandate.
Background
In late September 2015, the Washington State Court of Appeals’ issued an Order Denying a Motion for Reconsideration of San Juan County’s Critical Area Ordinance (CAO) requested by CSA and the P.J. Taggares Company. Shortly thereafter, the Pacific Legal Foundation (PLF) accepted legal representation of CSA in order to take the case to the next step.
PLF, a non-profit 501(c)(3) corporation, was established in 1973. It is the oldest (and perhaps the most successful) public interest legal organization known to fight for limited government, property rights, individual liberties and a balanced approach to environmental protection. CSA is pleased to partner with PLF who has been supportive of CSA’s efforts all along and have filed Amicus Briefs at each court level.
Argument
It is true that government can impose conditions to the receipt of a building permit; however, SCOTUS has previously ruled that the authority to condition cannot be exercised without limitation or purely for its own sake. Permit conditions are legal only when they mitigate identifiable development impacts caused by that permit applicant. Permit conditions cannot, for example, be imposed to cure problems not created by the permit applicant, or be disproportionate to the impact. Therefore, by imposing buffers, without exception, for all permit applicants, regardless of evidence of impact, San Juan County’s CAOs violate the principles of “rough nexus and proportionality,” which are legal requirements established by the U.S. Supreme Court cases of Nollan and Dolan (Nollan v. California Coastal Commission, 1987, and Dolan v. City of Tigard, 1994).
But CSA’s Constitutional objections go further. While San Juan County may have developed CAO formulas and approaches that purportedly take into account site-specific factors (e.g., slope, distance to wetlands, pollutant removal), none of these formulaic site-specific CAO “solutions” identify site-specific impacts that might require a remedy to begin with. Therefore, the mere fact that San Juan County demands property exactions from every permit applicant as a pre-condition to a permit being issued is a violation of the “doctrine of unconstitutional conditions.” The Supreme Court Case of Koontz (Koontz v St. Johns River Water Management District, 2013) forbids governments from pressuring citizens into forfeiting their constitutional rights by coercively withholding benefits (i.e., giving up property to obtain a permit).
CSA’s position is that San Juan County’s CAOs constitute illegal takings. Over the past few years, Washington State courts have reconstituted “takings” cases into “due process” cases. In doing so, Washington courts have held that, as long as a process is followed in the preparation of our CAOs (such as consideration of Best Available Science), then the outcome of the CAO process is legal—without regard to whether that process is good or bad, or accurate or inaccurate, or just or unjust. Washington Courts have not concerned themselves with the quality of the process, only that there is one. This was never the intent in the cases of Nollan, Dolan, and Koontz. Furthermore, Washington courts have ignored the “just compensation” aspect of takings. Even with due process, just compensation is owed to people who have been subjected to a taking.
Washington State is not the only place that has poked holes in the Nollan, Dolan, and Koontz cases. The Nolan, Dolan and Koontz rulings are being enforced and interpreted as due process cases in some states and federal courts, and as takings cases in others. When SCOTUS rules are not interpreted consistently, such “percolating issues” can only be resolved by SCOTUS itself. Fortunately, this unacceptable situation already has been acknowledged by SCOTUS, with Justice Thomas having been quoted as saying, “Until we decide this issue, property owners and local governments are left uncertain about what legal standard governs legislative ordinances … These factors present compelling reasons for resolving this conflict at the earliest practicable opportunity.”
We believe Common Sense Alliance v. San Juan County provides the Court with just such an opportunity. The case, if accepted, is expected to be heard by the SCOTUS in their October 2016 term. See the PLF Blog for more information.
Thank you CSA/PLF for taking this all the way to the supreme court. I certainly hope they rule in favor of private property rights.
Perhaps they will succeed and perhaps they should by our Constitution. If that comes to pass, I think eventually the tragedy of the commons will be complete and salmon in Puget Sound will be an artifact of history. Everything we do with the land and water has a cumulative impact that if not corrected, mitigated or offset changes the surrounding land and water. Acknowledging that is paramount.
Surely, if the salmon are on the verge of extinction, we should halt all salmon fishing for a few years. Putting the burden of recovery solely on new homebuilders is a feel-good, do nothing proposition, in addition to being unconstitutional on its face.