Urbanites Versus Rural Rights: Contest of Local Government Land-use Regulations Under Washington Preemption Statute 82.02.020

• Publication year: 2021

URBANITES VERSUS RURAL RIGHTS: CONTEST OF LOCAL GOVERNMENT LAND-USE REGULATIONS UNDER WASHINGTON PREEMPTION STATUTE 82.02.020

Donya Williamson

Abstract: In Citizens' Alliance for Property Rights v. Sims,(fn1) the Court of Appeals of Washington held that King County clearing and grading regulations-recently enacted pursuant to the Washington State Growth Management Act-constitute an unlawful "tax, fee, or charge" on the development of land, thereby violating a Washington excise tax preemption statute. The court ruled that the clearing limitations do not qualify under the statutory exception for mitigation of development impacts since they are not calculated on a site-by-site basis. This Note argues that the ruling greatly expands the scope of this statutory limitation on local land-use regulation, compromises Growth Management Act policies, and misconstrues prior case law. If upheld, the decision's approach will significantly constrain municipal authority to protect environmental quality through land-use regulations.

INTRODUCTION

Development restrictions implemented pursuant to the Washington State Growth Management Act (GMA) have caused tension between landowners, developers, and government(fn2) since the state legislature enacted the GMA in 1990.(fn3) In King County, Washington, the conflict also divides urban and rural interests. Approximately 1.9 million people live in King County;(fn4) and while nearly one-third of that population lives in Seattle,(fn5) over 1500 of the county's 2000 square miles are zoned for rural, forest, and agricultural uses.(fn6) Nearly 150,000 people live in these unincorporated rural areas.(fn7)

In 2004, the King County Council considered a controversial clearing and grading ordinance that would prohibit rural landowners from clearing some types of vegetation-generally, trees and brush-from fifty or sixty-five percent of their land.(fn8)

Advocates argued that the limits were necessary to prevent further erosion and flooding, and to keep chemicals from running into rivers and streams.(fn9) Rural residents, who took the position that the proposed clearing and grading restrictions would unfairly limit what they could do with their land, fought the ordinance throughout the public-comment process,(fn10) including at the October 25, 2004 King County Council meeting at which the members cast their votes.(fn11) The ordinance passed by a 7-6 vote divided along partisan lines, with Democrats, who largely represented urban areas,(fn12) voting in favor of its enactment.(fn13)

Although the county had revised the ordinance based on public feedback, the ordinance as enacted was not a satisfactory compromise for the rural opposition. Citizens' Alliance for Property Rights, a political action committee comprising property owners potentially impacted by the county's proposed clearing and grading restrictions, sued King County. It argued that the ordinance ran afoul of the state constitution and amounted to a tax prohibited by state law.(fn14)

The Washington State Court of Appeals held that the clearing and grading ordinance was an unlawful "tax, fee, or charge" because it did not require individually determined clearing and grading restrictions based on site-specific evaluations of each plot of land.(fn15) The court did not reach the constitutional issues.(fn16) The decision could seriously undermine the ability of local governments to plan for responsible land use. If counties have to conduct site-specific evaluations, it will be more costly and time-consuming to create the comprehensive land-use plans the GMA requires.

This Note argues that the court of appeals erred in calling the land-use regulations an unlawful "tax, fee, or charge." Part I gives an overview of the GMA. Part II introduces constitutional and statutory protections available to Washington landowners and developers, and Part III describes key cases interpreting some of these protections. Part IV introduces the King County ordinance, reviews the environmental concerns that spurred the ordinance, and discusses the rural response to the clearing restrictions. Part V describes Citizens' Alliance for Property Rights v. Sims, (fn 17) which Part VI argues was decided in error.

I. THE GMA EMPOWERS LOCAL GOVERNMENTS TO DEVELOP COMPREHENSIVE LAND-USE PLANS

The Washington landscape includes forestland, pastures, wetlands and deserts, and the state's people live in vast ranching areas and farm communities as well as densely populated cities and suburbs.(fn18) Washington's natural resources, from salmon to lumber to minerals, were the cornerstone of its economy throughout its early years.(fn19) During the 1970s and 1980s a massive influx of new residents(fn20) strained the state's environment and landscape.(fn21) By the late 1980s, it had become clear that Washington needed new approaches to manage population growth and development.(fn22)

In 1990, the Washington State Legislature passed the Growth Management Act,(fn23) which channels growth into urban centers and aims to reduce sprawl and preserve the character of rural areas.(fn24) The responsibility for implementing and enforcing the GMA's mandates falls chiefly to local governments,(fn25) allowing land-use planning under the GMA to account for local problems and needs. This can result in tension in counties with large urban populations and urban-centered local government because rural landowners sometimes feel their voices are overwhelmed by urbanites who do not understand rural lifestyles, underestimate ruralites' environmental awareness, and assign a disproportionate share of environmental protection costs to the rural minority.(fn26)

A. Local Governments Must Enact Land-Use Regulations Consistent with the GMA's Goals and According to Defined Procedures

By the late 1980s Washington's economy was booming, but the steadily increasing population and urban sprawl created traffic congestion,(fn27) reduced areas of open space,(fn28) and intensified instances of environmental degradation.(fn29) The state was in dire need of a comprehensive strategy to manage growth.(fn30) The land-use and development policies in effect were scattered throughout statutes enacted over the course of a century: a constitution written in the late 1880s,(fn31) planning laws adopted in the 1930s,(fn32) and environmental acts passed in the 1970s and 1980s.(fn33) State agencies were sending uncoordinated and conflicting messages to local governments, private developers, and the public,(fn34) and local governments were working under one of the weakest mandates for comprehensive planning in the United States.(fn35)

In 1990, the state legislature passed the GMA,(fn36) which empowers local governments to create land-use plans, called "comprehensive plans," consistent with economic development and environmental protection.(fn37) The GMA lists thirteen planning goals, including protecting the environment, focusing growth in high-density urban areas, protecting landowners from arbitrary and capricious regulations, and promoting development "within the capacities of the state's natural resources."(fn38) Local governments bear primary responsibility for implementing the GMA's mandate,(fn39) but the GMA does not tell them how to balance what critics have described as contradictory goals.(fn40)

Under the GMA, all of the state's local governments must designate "critical areas" and enact regulations to protect them.(fn41) Critical areas include wetlands, areas essential for potable water, and fish and wildlife conservation areas.(fn42) The GMA requires local governments to use the "best available science" to identify critical areas and to craft the restrictions that apply to them.(fn43) Scientific inquiry is particularly relevant to the designation and regulation of critical areas, although local governments may balance scientific findings against the GMA's other goals.(fn44)

Heavily populated counties or counties experiencing rapid growth(fn45) must do more than identify and protect critical areas: Their comprehensive land-use plans must include a map identifying urban-growth areas and areas where only rural land use will be allowed.(fn46) Plans must also identify the different regulations that will govern each type of land.(fn47) The GMA itself mandates that all urban development must occur within urban-growth areas, just as it requires local government to regulate rural lands in a way that preserves rural-based economies and traditional rural lifestyles.(fn48)

B. GMA Regulations Cause Tension Between Government, Private Property Owners, and Developers

The GMA has created tension between private landowners and local governments because it restricts certain uses of property in order to control the environmental impact of development(fn49) and flirts with the line between impermissible takings or due process violations, and permissible uses of government police power.(fn50) Critics have charged that the GMA's thirteen goals are contradictory and irreconcilable. For example, regulations to achieve one GMA planning goal-to protect the environment-are often a hindrance to another GMA planning goal-to encourage economic development.(fn51) Many landowners, especially rural landowners who make a living from their land, also feel that GMA regulations go too far.(fn52) When the Chelan County Commissioners were debating GMA regulations, long-time...