Subject: Property owners prevail in Supreme Court - GMA does not require mandatory buffers
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Date: Mon, 5 Sep 2011 15:56:55 -0700

Property owners prevail in Supreme Court
- GMA does not require mandatory buffers

Kitsap
Peninsula Business Journal

10/8/07

In a strong 8-1 decision, the Washington State Supreme Court
has ruled the Growth Management Act (GMA) does not require
mandatory buffers along streams and rivers. The Court also ruled
the GMA only requires that local jurisdictions “protect” critical
areas, not “enhance” them, and that the GMA does not require local
governments to impose mandatory riparian buffers.

For years, environmentalists have asserted that landowners not
only have a duty to “protect” critical areas on their property,
but are required to enhance them through huge buffers and other
onerous actions, and have intimated local governments with the
threat of expensive appeals and lawsuits. The Court’s decision has
basically negated their ability to continue to threaten
governments in such a manner.

The
case was Swinomish Tribal Community and Washington Environmental
Council v. Western Washington Growth Management Hearings Board, et
al. After years of arguments over the issue of what constitutes
“best available science” and how it should be applied, the Supreme
Court clearly stated in its ruling that local governments are not
required to follow the so-called “best available science” (BAS).

For years, interpreting what BAS means and how it should be
applied has been a contentious one for builders and developers. It
was the single most contentious issue in adopting Kitsap County’s
Critical Areas Ordinance last year. The county Planning
Commission, by a margin of 6-3 soundly rejected county staff’s
version of what constituted BAS. Yet the county commissioners
voted 2-1 to adopt staff’s version of the ordinance anyway.
Commissioner Jan Angel was the dissenting vote, with former
commissioners Chris Endresen and Patty Lent voting in favor.

This landmark case involved a challenge by the Swinomish Indian
Tribe and Washington Environmental Council (WEC) against Skagit
County over its buffer sizes. The tribe and WEC argued the “best
available science” (BAS) requires mandatory buffers along streams
and rivers. The tribe claimed farmers were required to plant
200-foot buffers on their property along streams, which had been
cleared over a century ago to make way for farming. The County and
farmers argued the GMA does not force local governments to follow
the so-called BAS. Instead, the County and farmers argued that GMA
only requires they “include” the science in their decision making
process when enacting its critical areas ordinances.

The Supreme Court ruled in favor of Skagit County and the
farmers, stating, “The GMA does not require the county to follow
BAS; rather, it is required to “include” BAS in its record. Thus,
the county may depart from BAS if it provides a reasoned
justification for such a departure.”

The Building Industry Association of Washington (BIAW) has
consistently argued in court and in the Legislature that the GMA
doesn’t require local governments to follow the BAS, and believes
that over the years the BAS requirement has been hijacked by
environmental extremists claiming to be scientists, and creating
junk science mandating 200 to 300-foot buffers.

The lone dissent came from Justice Susan Owens, who, prior to
being elected to the Supreme Court, just so happened to be a
tribal judge.

The Supreme Court’s decision is an absolute victory for
property owners. The ruling will severely restrict the three
Growth Boards’ ability to force local governments to impose large
buffers and enforce other onerous regulations on property owners.
As a result, BIAW says its attorneys will monitor future cases to
ensure that the Growth Boards are properly following the Court’s
precedent.

Related story:

Supreme
Court hands victory to property owners - click here (pdf)

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