Academic journal article Washington Law Review

Urbanites versus Rural Rights: Contest of Local Government Land-Use Regulations under Washington Preemption Statute 82.02.020

Academic journal article Washington Law Review

Urbanites versus Rural Rights: Contest of Local Government Land-Use Regulations under Washington Preemption Statute 82.02.020

Article excerpt

Abstract: In Citizens' Alliance for Property Rights v. Sims,' the Court of Appeals of Washington held that King County clearing and grading regulations - recently enacted pursuant to the Washington State Growth Management Act - constitute an unlawful "tax, fee, or charge" on the development of land, thereby violating a Washington excise tax preemption statute. The court ruled that the clearing limitations do not qualify under the statutory exception for mitigation of development impacts since they are not calculated on a site-by-site basis. This Note argues that the ruling greatly expands the scope of this statutory limitation on local land-use regulation, compromises Growth Management Act policies, and misconstrues prior case law. If upheld, the decision's approach will significantly constrain municipal authority to protect environmental quality through land-use regulations.

INTRODUCTION

Development restrictions implemented pursuant to the Washington State Growth Management Act (GMA) have caused tension between landowners, developers, and government2 since the state legislature enacted the GMA in 1990.3 In King County, Washington, the conflict also divides urban and rural interests. Approximately 1 .9 million people live in King County;4 and while nearly one-third of that population lives in Seattle,5 over 1500 of the county's 2000 square miles are zoned for rural, forest, and agricultural uses.6 Nearly 1 50,000 people live in these unincorporated rural areas.7

In 2004, the King County Council considered a controversial clearing and grading ordinance that would prohibit rural landowners from clearing some types of vegetation - generally, trees and brush - from fifty or sixty-five percent of their land.8

Advocates argued that the limits were necessary to prevent further erosion and flooding, and to keep chemicals from running into rivers and streams.9 Rural residents, who took the position that the proposed clearing and grading restrictions would unfairly limit what they could do with their land, fought the ordinance throughout the public-comment process,10 including at the October 25, 2004 King County Council meeting at which the members cast their votes." The ordinance passed by a 7-6 vote divided along partisan lines, with Democrats, who largely represented urban areas,12 voting in favor of its enactment.13

Although the county had revised the ordinance based on public feedback, the ordinance as enacted was not a satisfactory compromise for the rural opposition. Citizens' Alliance for Property Rights, a political action committee comprising property owners potentially impacted by the county's proposed clearing and grading restrictions, sued King County. It argued that the ordinance ran afoul of the state constitution and amounted to a tax prohibited by state law.14

The Washington State Court of Appeals held that the clearing and grading ordinance was an unlawful "tax, fee, or charge" because it did not require individually determined clearing and grading restrictions based on site-specific evaluations of each plot of land.15 The court did not reach the constitutional issues.16 The decision could seriously undermine the ability of local governments to plan for responsible land use. If counties have to conduct site-specific evaluations, it will be more costly and time-consuming to create the comprehensive land-use plans the GMA requires.

This Note argues that the court of appeals erred in calling the land-use regulations an unlawful "tax, fee, or charge." Part I gives an overview of the GMA. Part II introduces constitutional and statutory protections available to Washington landowners and developers, and Part III describes key cases interpreting some of these protections. Part IV introduces the King County ordinance, reviews the environmental concerns that spurred the ordinance, and discusses the rural response to the clearing restrictions. Part V describes Citizens ' Alliance for Property Rights v. …

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