King County, Washington Ordinance 15053: Is "The Most Restrictive Land-Use Law in the Nation" Constitutional?

Beginning of article

I.   INTRODUCTION
II.  KING COUNTY ORDINANCE 15053: RESTRICTIONS ON CLEARING TO PREVENT
     HARM TO WATER QUALITY AND SPECIES
III. THE CONSTITUTIONALITY OF THE CLEARING AND GRADING ORDINANCE UNDER
     THE TAKINGS CLAUSE OF THE FIFTH AMENDMENT
     A. The Washington Supreme Court's Takings Framework
     B. Analyzing Whether King County Ordinance 15053
        Unconstitutionally Takes Private Property in Violation of the
        Fifth Amendment
     1. Facial Challenges to the King County Clearing and Grading
        Ordinance
     2. "Harm Preventing" vs. "Benefit Conferring"
     3. The Fact-Specific Balancing Test: Weighing the Adverse Effect
        on Private Landowners Against the County's Interest in
        Protecting Water Quality
IV.  THE CONSTITUTIONALITY OF KING COUNTY ORDINANCE 15053 UNDER THE DUE
     PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
     A. The Lawton Substantive Due Process Test: Is The Regulation
        "Unduly Oppressive"?
     B. Invalidating Legislative Attempts to Protect Low-Income Housing
     C. Distinguishing the King County Clearing and Grading Ordinance
        from the Unconstitutional Housing Preservation Ordinances
        (HPOs)
        1. The Shared Burdens of Environmental Protection in King County
           County
        2. The Nominal Impact on Landowners' Ability to Develop Their
           Property
        3. The "Indentured Servitude" Aspect of the HPOs, and the
           Similarity of the King County Clearing and Grading Ordinance
           to a Traditional Restriction on Use
        4. King County Determined That No Less Restrictive Alternatives
           Would Accomplish the Goals of the Regulation
V.   CONCLUSION

I. INTRODUCTION

Just after midnight on October 26, 2004, the King County (1) Council approved Ordinance 15053, (2) a controversial clearing and grading ordinance characterized by property rights advocates, and certain members of the council, as the "most restrictive land use law in the nation." (3) Passed by a vote of 7-6, the ordinance imposes stringent land clearing restrictions on King County's rural landowners because a majority of the council concluded, on the basis of extensive scientific studies, that excessive clearing and loss of forest cover causes significant damage to wetlands, streams, and groundwater. Specifically, the studies showed that substantial impairment to water quality results when more than 35% of a watershed is cleared, (4) and that potentially irreversible loss of aquatic system function occurs where more than 10% is covered with an impervious surface. (5)

Ordinance 15053 prohibits most rural landowners in unincorporated King County from clearing more than 50% of their land. (6) Owners of large land parcels (parcels greater than five acres) are prohibited from clearing more than 35% of their land. (7) The remaining 65% of the land must remain unaltered in its natural forested or vegetative condition. These clearing restrictions became effective on January 1, 2005.

King County adopted the new clearing and grading ordinance in response to Washington's Growth Management Act (GMA), (8) which requires cities and counties to adopt and periodically update regulations that protect critical areas. (9) The GMA established a timetable for critical area regulation updates, requiring King County to review and revise its existing regulations by December 1, 2004. (10) By December 1, 2007, every other city and county in Washington must review and update their critical area regulations. (11)

In March 2005, Pierce County, which borders King County to the south, became the second county in Washington to prohibit rural residential landowners from clearing more than 35% of their land. (12) With thirty more counties required to update their critical area regulations by December 1, 2007, other counties may follow King County's lead and enact similarly restrictive clearing regulations. The success or failure of legal challenges to the King County ordinance will likely influence whether other counties adopt similar regulations. (13)

Affected rural landowners in King County claim that the land clearing restrictions are an unconstitutional intrusion on their private property rights. (14) There are two primary avenues to challenge the constitutionality of a land-use regulation in Washington. (15) The first is to allege that the regulation has "taken" the landowner's property without payment of just compensation in violation of the Fifth Amendment of the U.S. Constitution. (16) The second is to argue that the regulation violates the landowner's substantive due process rights under the Fourteenth Amendment (17) of the U.S. Constitution. (18) A landowner could also argue that the regulation takes property in violation of article I, section 16 of the Washington Constitution. (19) However, with only one exception, the Washington Supreme Court has not interpreted the takings clause in Washington's Constitution to provide broader protection than the Fifth Amendment. (20)

It is unlikely that any landowner can successfully claim, either in a facial or as-applied challenge, under either the U.S. or Washington Constitution, that Ordinance 15053 amounts to a regulatory taking because the ordinance substantially advances the county's interest in water quality protection, does not destroy fundamental attributes of property ownership, and will not have a sufficiently adverse economic effect on landowners to amount to an unlawful taking. (21) Landowners can still possess, convey, build on, and subdivide their land and thus retain a significant amount of economic value in their land. (22) The county's interest in protecting the quality of ground and surface water from the harm that results from loss of forest cover, as shown by the scientific studies that the county relied upon, is also significant. (23) Since Washington courts rarely conclude that land-use regulations take private property, the success of a takings claim seems especially unlikely. (24)

On the other hand, the Washington Supreme Court has exhibited a willingness to rule that restrictive land-use regulations violate a landowner's federal Substantive due process rights. (25) The different remedies that the two claims offer explain this preference for due process versus takings analysis. A successful takings claim requires the local government to fully compensate the landowner, even for a temporary taking, (26) but a successful due process claim only results in invalidation of the ordinance. (27) The court expressly prefers the remedy of invalidation over an award of damages for burdensome land-use regulations, because the "specter of strict financial liability" in takings cases results in a "chilling effect" on land-use regulation, deterring legislative bodies from malting difficult land-use regulatory decisions. (28)

The Washington Supreme Court's substantive due process analysis of land-use regulation poses a more significant and less predictable hurdle for the King County ordinance, primarily due to the large amount of discretion that the due process test vests in the court. (29) Washington's Supreme Court determines whether an ordinance violates federal due process rights by balancing numerous factors that weigh in favor and against the public and private interests involved. (30) The key inquiry in the context of the clearing and grading ordinance is whether the 35 and/or 50% clearing limits are "unduly oppressive" to individual landowners in rural King County. (31)

This Comment analyzes the constitutionality of the clearing and grading restrictions adopted by King County in Ordinance 15053. Part II scrutinizes the key provisions of Ordinance 15053 and the justifications for their adoption. Part III explains why landowners will likely fail on their claims that the ordinance works a regulatory taking of their land. Part IV examines the Washington Supreme Court's application of substantive due process and argues that Ordinance 15053 does not violate the substantive due process rights of King County's rural landowners. The Comment concludes that Washington courts will likely hold that Ordinance 15053 neither unconstitutionally takes private property, nor violates landowners' substantive due process rights because of the county's substantial interest in protecting water quality, and because the economic impact on affected landowners is insufficient to result in a taking or a due process violation.

II. KING COUNTY ORDINANCE 15053: RESTRICTIONS ON CLEARING TO PREVENT HARM TO WATER QUALITY AND SPECIES

The GMA requires every city and county in Washington to designate critical areas within their jurisdiction and to protect those areas through the adoption of development regulations. (32) Critical area regulations serve a dual purpose of protecting both public health and safety and environmentally sensitive areas. Critical area regulations comply with the GMA only if they include the best available scientific information and protect all "functions and values" of the critical areas designated by the local government. (33) In developing critical area regulations, local governments must give special consideration to the conservation and protection of anadromous fisheries within the government's jurisdiction. (34)

In late 2002, King County began to review the existing science on critical area protection in preparation for its required critical area regulation updates. In February 2004, the county published a two-volume report that summarized the best available scientific information and assessed the new critical area protections that King County proposed. (35) In October 2004, after two full years of scientific review, twenty-one public meetings, and sixteen opportunities for public comment, the King County Council narrowly approved a "critical areas package" that included a stormwater ordinance, a critical areas ordinance, and, most controversially, Ordinance 15053, the clearing and grading ordinance. (36)

The purpose of the new clearing limits is to preserve the quality of streams and groundwater and protect anadromous fish habitat through retention of adequate forest cover (37) King County relied on scientific studies that showed that retention of forest cover is essential for protection of stream quality and fish habitat. (38) One study concluded that when a watershed reaches approximately 10% effective impervious area, "demonstrable, and probably irreversible, loss of aquatic system function occurs in western Washington streams." (39) Another study indicated that retention :of a minimum of 65% of natural land cover in a basin is necessary to prevent such damage. (40)

Loss of forest cover and its negative effects on water quality is especially problematic in King County, which contains both a large and expanding population and numerous streams containing imperiled salmon runs. From 1972 to 1996, King County lost more than one third of its forest cover, including 27,000 acres of forest cover from 1994-1996 alone. (41) With King County's population expected to grow by 250,000 people over the next twenty years, this pattern of forest cover removal for residential development is certain to continue. In adopting the clearing restrictions in Ordinance 15053, King County attempted to balance preservation of its streams and fisheries, as required by the GMA, (42) with this projected increase in population and development.

The clearing limits in Ordinance 15053 apply only to properties located in the "rural area" zone, (43) presumably because other than the forest production lands in eastern King County (which are largely publicly owned), the rural area is the only part of the county that retains a substantial amount of forest cover. The ordinance prohibits landowners within the rural area from clearing any more than 50% of their land. (44) For lots greater than five acres, the clearing limit is the greater of 2.5 acres or 35%. (45) For lots under 1.25 acres, the clearing limit is 50%, but clearing necessary for utilities, septic, and access does not count towards the clearing limit. (46) The ordinance applies prospectively; therefore, lots cleared prior to adoption of the ordinance are unaffected. (47)

A landowner subdividing her property may clear up to 50% of the proposed subdivision, so long as she places the uncleared area in a separate tract that either minimizes fragmentation of wildlife habitat or maximizes protection of critical areas and prevention of flooding, erosion, and groundwater impacts. (48) The ordinance does not require the landowner to dedicate the separate tract to the public. (49) If the landowner does not place the uncleared portion of the subdivision in a separate tract, the clearing limit remains at 35%, and the owner can distribute the required 65% vegetative cover throughout the plat however she wants. (50)

Within the uncleared area, the ordinance permits 1) logging that complies with a county-approved forest management plan, 2) recreational uses like hiking and biking trails, nature viewing areas, and fishing and camping areas, and 3) other uses that do not require permanent structures. (51) Other permissible uses include pruning or removal of hazard trees, removal of downed trees, actions taken to reduce danger from wildfire if done in accordance with the King County fire marshal's best management practices, and the removal of noxious vegetation. (52)

III. THE CONSTITUTIONALITY OF THE CLEARING AND GRADING ORDINANCE UNDER THE TAKINGS CLAUSE OF THE FIFTH AMENDMENT

King County's rural landowners argue that the clearing and grading regulations unconstitutionally take their private property rights. This section describes the Washington Supreme Court's framework for analyzing regulatory takings claims (53) and explains that the landowners' takings claims will likely fail because: 1) the King County Ordinance serves a substantial state interest, 2) does not destroy fundamental attributes of property ownership, and 3) will have an insufficient economic impact on individual landowners to amount to a regulatory taking.

A. The Washington Supreme Court's Takings Framework

Landowners in Washington may challenge land-use regulations as either an unconstitutional taking or as a violation of their substantive due process rights. (54) If the landowner challenges the regulation on both grounds, Washington courts will analyze the takings claim first. (55) If the court does not find a taking, the court will proceed to consider whether the regulation violates the landowner's substantive due process rights. (56)

When reviewing a takings claim, the Washington Supreme Court first considers whether the regulation, on its face, is a per se taking. (57) The Washington Supreme Court considers four types of regulations to be subject to a facial challenge as per se categorical takings. (58) Those four types of government action are those that: 1) effect a total taking of all economically viable uses of an individual's property, (59) 2) result in an actual physical invasion of property, (60) 3) destroy one or more fundamental attributes of property ownership, (61) or 4) are aimed at enhancing the value of publicly owned property. (62) If a property owner successfully proves that the mere enactment of the regulation accomplishes one or more of those four results, the court will require payment of just compensation without any further inquiry into the purpose or effect of the regulation. (63) The landowner's burden is high in such a facial challenge, since she must show that mere enactment of the regulation causes one of the four categorical takings to occur. (64)

If a landowner fails to establish a categorical taking under this first threshold inquiry, the court will analyze whether the regulation prevents a public harm or provides an affirmative public benefit. (65) Despite the U.S. Supreme Court's explicit criticism of such harm/benefit analysis, (66) the Washington Supreme Court has declined to remove that analysis from its takings framework. (67) If the court deems the regulation harm-preventing, the regulation may be insulated from a takings challenge. (68) If the court does not characterize the regulation as harm-preventing, the regulation is not insulated and the court proceeds with a fact-specific …