Common Sense Alliance has taken its objections to San Juan County’s Critical Area Ordinance to the U.S. Supreme Court.
The group has filed a Petition for Certiorari, asking the Supreme Court to review their appeal. Appeals presented by CSA have been reviewed by seven different officials – all of whom have upheld the CAO. The most recent was in August 2015.
“The court is very careful about the cases they accept. Many try, but few cases are chosen,” said San Juan County Prosecuting Attorney Randall K. Gaylord in a press release.
He is not aware of the Supreme Court accepting a case from San Juan County in the past. The court receives more than 10,000 requests to review cases each year, with only 1 percent of them being reviewed by the court with an attorney present. According to Gaylord, this case is similar to another case the court declined to hear from Jefferson County several years ago. He says the regulations being questioned have already been modified, which negates the benefit of a court ruling. Gaylord says that many accepted and understand the nature of critical area regulations.
The case challenges the CAO, which places conservation conditions upon new land-use permits on shoreline properties. The conditions are that the landowner must dedicate a significant portion of their land to allow natural filtration of pollutants and stormwater runoff caused by neighboring inland land uses, including public roads.
CSA claims that the ordinance, adopted in 2012, is subject to scrutiny under the unconstitutional conditions doctrine, which states that the government cannot condition a person’s receipt of a governmental benefit (in this case a permit) on the waiver of a constitutionally protected right.
“Washington courts have held that as long as a process is followed in the preparation of our CAOs (such as consideration of Best Available Science), then the outcome of the CAO process is legal—without regard to whether that process is good or bad, or accurate or inaccurate, or just or unjust,” said a press release by CSA.
The CAO requires shoreline property owners seeking a new land use permit within 200 feet of the shoreline to dedicate a conservation buffer between 20 and 250 feet wide. The buffer is intended to filter 60 to 70 percent of pollutants from the water, originating on and passing through the property before it reaches the ocean. The county developed a formula to determine how large each conservation buffer will need to be, and claims the formula is site specific.
CSA argues that the ordinance is in direct violation of the fifth and 14th Amendments of the U.S. Constitution. According to the Fifth Amendment, “‘private property [shall not] be taken for public use without just compensation.” Additionally, the 14th Amendment says that no state can “deprive any person of life, liberty, or property, without due process of law.”
Essentially, CSA’s claim is that by requiring shoreline property owners to devote a buffer to filter water that does not originate on their own property, the county is using the land for public use without compensating the owner. If the landowner does not agree reserve that buffer, they will be denied a land use permit by the county, which CSA says is unconstitutional.
Legal representatives for CSA state in their petition to the Supreme Court state that the formula the county has is not accurate and that each property should have site-specific testing to determine the actual pollutant load and flow rate through the property.