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PLF Petitions State Supreme Court for Review of Court of Appeal's Decision

In late September 2015, following the Court of Appeals’ Order Denying a Motion for Reconsideration by Common Sense Alliance (CSA) and the P.J. Taggares Company (Taggares) of San Juan County’s Critical Area Ordinance (CAO), Sandy Mackie of Perkins Coie LLC withdrew as counsel for CSA and Taggares. 
 
Brian Hodges of the Pacific Legal Foundation (PLF) accepted representation of CSA and was substituted as the attorney for CSA and Taggares. PLF, a non-profit 501(c)(3) corporation, was established in 1973.  It is the oldest and (and perhaps the most successful) public interest legal organization known to fight for limited government, property rights, individual rights and a balanced approach to environmental protection, CSA is pleased to partner with PLF who have been supportive of CSA’s effort all along, and have filed Amicus Briefs at each court level.
 
The following is a brief timeline of CSA’s legal journey of the past 16 months since San Juan County Judge Eaton upheld the Growth Management Hearings Board Final Decision and Order of September 6, 2013, (ruling against CSA) and finding San Juan County (County) to be compliant with the requirements of the Growth Management Act (GMA):
 
·      June 19, 2014: SJC Superior Judge Eaton upheld the Growth Board’s Decision with his Order.  Click on this link to read documents filed at this Court level.
·      July 23, 2014: CSA voted unanimously to appeal Judge Eaton’s decision and filed an appeal to the Washington State Court of Appeals (Court of Appeals).
o   Note: The Friends of the San Juans (Friends), (another Appellant in this case) has taken the same steps to appeal the Court of Appeals’ decision.
o   A lengthy period of time followed while all of the parties to this action filed briefs with the Court of Appeals.  Click on this link to read story.

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Made a deal with the devil? Deal with it.

[Posted with permission from PLF Liberty Blog]

 

Brian T. HodgesOctober 2, 2015

There’s an interesting issue lurking in PLF’s petition for review in Common Sense Alliance v. Growth Management Hearings Board: Is a conservation buffer an interest in real property?

Briefly about the case: Common Sense Alliance involves a challenge to San Juan County’s newly updated critical areas ordinance, which conditions the issuance of new land-use permits on shoreline properties upon the owners’ dedication of a significant portions of their land as conservation areas designed to mitigate for all pollution entering and crossing over the shoreline properties, including pollution/storm water caused by neighboring land uses (including public roads).

As you may have read here, PLF attorney’s have filed a petition arguing that the critical areas ordinance violates the “essential nexus” and “rough proportionality” standards of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard(1994), which hold that the government cannot condition approval of a land-use permit on a requirement that the owner dedicate private property to the public, unless the government can show that the dedication is necessary to mitigate impacts caused by the proposed development.

But there’s an interesting question standing in the wings. Is the government demanding a dedication of land to the public when it requires that permit applicants set aside a conservation buffer? Washington’s Court of Appeals said “no” in its decision in this case. But it didn’t provide any reasoning for its conclusion beyond stating that a buffer did not look like a traditional easement—nor could it have done so convincingly, given that it had previously answered the same question in the affirmative in an identical challenge. So, what’s the right answer?

Well, that may take a moment or two to ferret out.

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PLF attorneys ask Washington Supreme Court to protect property owners from San Juan County land grab

[Posted with permission from PLF Liberty Blog]
 

 

Brian T. HodgesOctober 2, 2015

Washington’s “growth management” approach to regulating land-use adjacent to environmentally sensitive areas relies almost exclusively on presumptions and generalizations—demanding that landowners dedicate oversized buffers based on assumed impacts rather than any actual determination that a proposed development will or will not result in negative impacts. That approach results in a conflict between a landowner’s right to the continued use of his or her property as a traditional shoreline residence (e.g., lawn, home, deck, access to beach) and the government’s desire to put their private property to use as an undisturbed natural vegetation area designed to enhance and restore the environment.

Over the years, PLF has championed the constitutional principal that government cannot compel land dedications as a mandatory condition on permit approvals without first demonstrating that the dedication is necessary to mitigate for some negative impact caused by the proposed development. PLF began writing the latest chapter in this ongoing struggle today, filing a petition for review with Washington’s Supreme Court in Common Sense Alliance v. Growth Management Hearings Board.

The case involves a challenge to San Juan County’s newly updated critical areas ordinance, which conditions the issuance of new land-use permits on shoreline properties upon the owners’ dedication of a significant portions of their land as conservation areas designed to mitigate for all pollution entering and crossing over the shoreline properties, including pollution/storm water caused by neighboring land uses (including public roads).

Read more ...