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Pacific Legal Foundation Comments on Judge Eaton's Decision

San Juan County Superior Court Case
 
“Rarely do I see an opinion so bungled and riddled with logical cul-de-sacs as the CSA opinion,” said Brian Hodges, Managing Attorney for the NW Office of the Pacific Legal Foundation, in his summation of San Juan County Superior Court Judge Eaton’s decision signed on June 19th in the case of Common Sense Alliance, et al. v. Growth Management Hearings Board of Western Washington.
 
In September of 2013, the Pacific Legal Foundation filed an Amicus Curiae Brief in support of the Common Sense Alliance and the P.J. Taggares Company.  In his decision, Judge Eaton found that the Growth Board had not erred in any of the issues brought by CSA, Taggares or the Friends of the San Juans (FOSJ).  
 
Yesterday, Mr. Hodges posted his entire comments to PLF's Blog,"Washington Trial Court Fumbles the Ball in Post-Koontz Case."   Judge Eaton's decision was the first post-Koontz decision and is "far from the doctrinal clarity we predicted," said Hodges.
Last year the U.S. Supreme Court decided the case of Koontz v. St. Johns River Water Management District and clarified that an unlawful exactions case falls within the doctrine of unconstitutional conditions.
 
Mr. Hodges said further, "... the [San Juan County] court upheld a massive land grab without first determining whether the burden of protecting and enhancing the marine environment is properly placed only on those select few shoreline property owners who apply for permits, rather than being spread among San Juan County's entire population as the Takings Clauses of the U.S. and Washington State Constitutions demand."
 
"...All a county has to do is shop for a consultant to say that a given buffer is beneficial to the environment and the exactions is lawful. This brings us directly back to CAPR v. Sims(King County)in which Division I of this state’s Court of Appeals said public benefit alone is not sufficient," said Sandy Mackie. 
 
CSA, Taggares and FOSJ have 30 days to decide whether to file an appeal to the Washington State Court of Appeals, Division I.

PLF Says There is No Nexus or Proportionality to the County CAO

Late in September after CSA received the final Order from the Growth Hearings Board, word came to CSA that the Board of Pacific Legal Foundation (PLF) had approved PLF’s participation with CSA in the matter of Common Sense Alliance v. Growth Management Hearings Board, Western Washington Regionwhich is CSA's request for the court to review the September 6th decision by the Growth Board on San Juan County's Critical Areas Ordinance (CAO). The hearing on this matter is set for 8:30 a.m., March 19, 2014, in the San Juan County Superior Court.  You can read PLF's Amicus Brief Curiae at this link.

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Court of Appeals to Review Superior Court Decision

Over the summer, both CSA attorney, Sandy Mackie, of Perkins Coie LLC, and Brian Hodges, attorney for The Pacific Legal Foundation, who joined CSA in our challenge of the Growth Board’s decision to the San Juan County Superior Court, made personal appearances in Friday Harbor to assist the CSA board in making a decision to appeal Judge Eaton’s Superior Court decision to the Washington State Court of Appeals.
 
“CSA is exactly where you need to be at this point,” said Mr. Hodges.  “With Mr. Mackie’s assistance, you have taken the required steps necessary to establish an excellent record in preparation for the higher courts.”
 
Mr. Hodges went on to say, “The Growth Management Hearings Board has only ruled in a handful of instances in favor of citizens, and has no judicial authority.  Superior court judges, for the most part, are not prepared nor have the time to research constitutional issues, and most often rule in favor of counties and typically punt such a case to the next level.”  This certainly has been true for CSA as we have worked our way through the various levels of review of the County’s Critical Areas Ordinance .
 
On recommendations of both attorneys, CSA voted unanimously to take our case against San Juan County to the Washington State Court of Appeals.  Our appeal was filed on July 23.  Since then, the parties to the Appeal have been filing the required procedural briefs with the Court.  At this time, we are anticipating a Fall 2015 Oral Argument before the Court and a decision in the Spring of 2016.  The following is a list of the briefs filed:
 
Appellants' (CSA) Brief was filed with the Court of Appeals on November 5, 2014.  Click on this link to read CSA's brief written by Sandy Mackie.  Click on this link to see the Appendices to the brief.
 
Brief of Friends of the San Juans was filed Court of Appeals on November 20, 2014.  Click on this link to read the FOSJ's brief.
 
CSA's Response to Brief of Appellant Friends filed with the Court of Appeals on January 5, 2015.  Click on this link to read the CSA brief.
 
Friends' Response to Brief of CSA filed with the Court of Appeals on January 5, 2015.  Click on this link to read the FOSJ brief.

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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).

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CSA asks the Supreme Court of the United States—Can a county turn your land into a water treatment facility without paying?

[Posted with permission from the PLF Liberty Blog]

May 11, 2016, Tony Francois

On May 9, 2016, the Pacific Legal Foundation filed this petition in the Supreme Court of the United States, asking the court to decide whether the government can make shoreline property owners give up part of their land to serve as water quality buffers for the surrounding community. This case, Common Sense Alliance v. San Juan County, deals with a perennial problem that property owners face. Government jurisdictions require permits to develop property, and use that authority as leverage to take property which they would otherwise have to pay for. The Supreme Court has aptly described this as an “out-and-out plan of extortion.

The Fifth Amendment to the U.S. Constitution requires just compensation when the government takes private property. Many Supreme Court decisions hold that the government may only demand property from a permit applicant when necessary to mitigate a harm that the proposed project would cause. PLF litigated some of the most important of these cases. Nollan v. California Coastal Commission, 483 U.S. 825 (1987), holds that government may only demand property as a condition of permit approval if there is an essential nexus between the demand and some harm that the project would cause. Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013) holds that this requirement applies to demands for money or services, just as it does to real property interests, and confirms, as the Court previously held in Dolan v. City of Tigard, 512 U.S. 687 (1994), that the government must also prove that the demand is roughly proportional to the impact.

In Common Sense Alliance, the Washington State Court refused to apply Nollan and Dolan to a San Juan County buffer exaction because it was imposed by a generally applicable ordinance instead of made up on-the-fly by a land use planner. PLF is asking the Supreme Court to clarify that Nollan, Dolan, and Koontz prevent government from extorting property owners seeking permits, even when the property demands result from generally applicable ordinances, and even if the demanded property would be useful for general government purposes.

Subcategories

Between January 31 and February 8, 2013 Five (5) Petitioners (Friends of the San Juans, Common Sense Alliance, the P. J. Taggares Company, Wm. H. Wright and the San Juan Builders' Association), petitioned the Growth Management Hearings Board (GMHB) for Review of San Juan County's Critical Areas Ordinances (CAO).  This category contains pertinent documents filed by the Petitioners CSA, Taggares and Friends and the Respondent, San Juan County.