CSA Argues Case of Statewide Significance
“A win by the Common Sense Alliance on either of the two issues argued before the San Juan County Superior Court on March 19th would stop the Department of Ecology in its tracks,” said Sandy Mackie, attorney for Common Sense Alliance.
Mr. Mackie was addressing a group of interested parties from juristictions around the State at a recent CSA sponsored meeting in Seattle. The case, Common Sense Alliance v. Growth Management Hearings Board, Western Washington Region, is of great importance in protecting Washington citizens’ rights and property against government over-regulation. A ruling in CSA’s favor would impact the law governing regulations affecting critical areas and shoreline protection statewide.
CSA’s case is proceeding on multiple claims; the most important of which are Constitutional, and statutory interpretation. Brian Hodges, attorney with the Pacific Legal Foundation (PLF), who filed an amicus brief
with the Superior Court, joining CSA in this action, argued:
“San Juan County’s CAO suffers from a fatal constitutional flaw: it demands that all shoreline property owners dedicate land to a public environmental use without first identifying what portion of the environmental problem is directly attributable to a proposed development.”
Sandy Mackie of Perkins Coie LLC, is the attorney for CSA and the P.J. Taggares Company in this case. According to Mackie,
“We believe we have a good record to test two tactics of the Washington Department of Ecology (DOE) and many Washington Counties during the critical area adoption and shoreline update.”
Mr. Mackie’s position is that the agencies and county staffs are not following the written law of the State of Washington by:
1. "Designating all shorelines as critical areas rather than making the specific designations required under RCW 36.70A.340(5) (adopted in 2003) and applying the definition in WAC 365-190-030(6) (adopted in 2010).
2. Applying buffers (easements designed to protect the environment) by ordinance without regard to reasonable necessity based on site-specific circumstances.”
Mr. Mackie’s approach is to specifically call buffers “easements” and to get the courts and agencies to consider the application of a buffer on the shorelines the equivalent of dictating a public easement over one’s property for environmental protection. This is not something that can be done legally, by just writing an ordinance.
Legal Cost: CSA has committed over $400,000 in the past four years to establish a record for the court and to challenge the San Juan County Critical Areas Ordinance adoption process. A CSA victory would benefit all property owners as it challenges the ordinance “as written.” Rather than waiting for a multitude of individuals who would have to file separate claims, and at their own expense, the CSA approach tackles the illegal and unconstitutional burdens at their core. At this time, CSA has an outstanding obligation to Perkins Coie of over $60,000.
We believe CSA has an excellent chance to win this case; however, this action will only be a “first step,” win or lose. For whatever the outcome, we are certain that an appeal would follow and CSA would be challenged by the Friends of the San Juans in State Court of Appeals. In that event, we believe that appealing this case to the next level will be less costly for all property owners (in the long term) to resolve the root cause of the problem, now, and to benefit our neighbors throughout the region.
If successful, the novel approach to CAO overreach crafted by Sandy Mackie, will require local legislators to pass and implement laws that define the problem, while the costly alternative would force individuals to go it alone to preserve their constitutional right to enjoy and use their property.
CSA is in this fight because we feel that it is the right thing to do. Now, more than ever, CSA needs your financial assistance. Please mail your tax-deductible donation to the address below or use the PayPal donation button at the bottom of the page.
Thank you, once again, for your on-going and loyal support.
Common Sense Alliance
PO Box 1249
Friday Harbor, WA 98250