King County, Washington Ordinance 15053: is 'the most restrictive land-use law in the nation' constitutional?

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King County, Washington Ordinance 15053: is 'the most restrictive land-use law in the nation' constitutional?

I. INTRODUCTION II. KING COUNTY ORDINANCE 15053: RESTRICTIONS ON CLEARING TO PREVENT HARM TO WATER QUALITY AND SPECIES III. THE CONSTITUTIONALITY OF THE CLEARING AND GRADING ORDINANCE UNDER THE TAKINGS CLAUSE OF THE FIFTH AMENDMENT A. The Washington Supreme Court's Takings Framework B. Analyzing Whether King County Ordinance 15053 Unconstitutionally Takes Private Property in Violation of the Fifth Amendment 1. Facial Challenges to the King County Clearing and Grading Ordinance 2. "Harm Preventing" vs. "Benefit Conferring" 3. The Fact-Specific Balancing Test: Weighing the Adverse Effect on Private Landowners Against the County's Interest in Protecting Water Quality IV. THE CONSTITUTIONALITY OF KING COUNTY ORDINANCE 15053 UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT A. The Lawton Substantive Due Process Test: Is The Regulation "Unduly Oppressive"? B. Invalidating Legislative Attempts to Protect Low-Income Housing C. Distinguishing the King County Clearing and Grading Ordinance from the Unconstitutional Housing Preservation Ordinances (HPOs) 1. The Shared Burdens of Environmental Protection in King County County 2. The Nominal Impact on Landowners' Ability to Develop Their Property 3. The "Indentured Servitude" Aspect of the HPOs, and the Similarity of the King County Clearing and Grading Ordinance to a Traditional Restriction on Use 4. King County Determined That No Less Restrictive Alternatives Would Accomplish the Goals of the Regulation V. CONCLUSION I. INTRODUCTION

Just after midnight on October 26, 2004, the King County (1) Council approved Ordinance 15053, (2) a controversial clearing and grading ordinance characterized by property rights advocates, and certain members of the council, as the "most restrictive land use law in the nation." (3) Passed by a vote of 7-6, the ordinance imposes stringent land clearing restrictions on King County's rural landowners because a majority of the council concluded, on the basis of extensive scientific studies, that excessive clearing and loss of forest cover causes significant damage to wetlands, streams, and groundwater. Specifically, the studies showed that substantial impairment to water quality results when more than 35% of a watershed is cleared, (4) and that potentially irreversible loss of aquatic system function occurs where more than 10% is covered with an impervious surface. (5)

Ordinance 15053 prohibits most rural landowners in unincorporated King County from clearing more than 50% of their land. (6) Owners of large land parcels (parcels greater than five acres) are prohibited from clearing more than 35% of their land. (7) The remaining 65% of the land must remain unaltered in its natural forested or vegetative condition. These clearing restrictions became effective on January 1, 2005.

King County adopted the new clearing and grading ordinance in response to Washington's Growth Management Act (GMA), (8) which requires cities and counties to adopt and periodically update regulations that protect critical areas. (9) The GMA established a timetable for critical area regulation updates, requiring King County to review and revise its existing regulations by December 1, 2004. (10) By December 1, 2007, every other city and county in Washington must review and update their critical area regulations. (11)

In March 2005, Pierce County, which borders King County to the south, became the second county in Washington to prohibit rural residential landowners from clearing more than 35% of their land. (12) With thirty more counties required to update their critical area regulations by December 1, 2007, other counties may follow King County's lead and enact similarly restrictive clearing regulations. The success or failure of legal challenges to the King County ordinance will likely influence whether other counties adopt similar regulations. (13)

Affected rural landowners in King County claim that the land clearing restrictions are an unconstitutional intrusion on their private property rights. (14) There are two primary avenues to challenge the constitutionality of a land-use regulation in Washington. (15) The first is to allege that the regulation has "taken" the landowner's property without payment of just compensation in violation of the Fifth Amendment of the U.S. Constitution. (16) The second is to argue that the regulation violates the landowner's substantive due process rights under the Fourteenth Amendment (17) of the U.S. Constitution. (18) A landowner could also argue that the regulation takes property in violation of article I, section 16 of the Washington Constitution. (19) However, with only one exception, the Washington Supreme Court has not interpreted the takings clause in Washington's Constitution to provide broader protection than the Fifth Amendment. (20)

It is unlikely that any landowner can successfully claim, either in a facial or as-applied challenge, under either the U.S. or Washington Constitution, that Ordinance 15053 a...

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