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

Property owners prevail in Supreme = Court=20 - GMA does not require mandatory buffers =

Kitsap=20 Peninsula Business Journal

10/8/07

In a strong 8-1 decision, the Washington State Supreme = Court=20 has ruled the Growth Management Act (GMA) does not require = mandatory buffers along streams and rivers. The Court also = ruled=20 the GMA only requires that local jurisdictions = =93protect=94 critical=20 areas, not =93enhance=94 them, and that the GMA does not = require local=20 governments to impose mandatory riparian buffers.

For years, environmentalists have asserted that = landowners not=20 only have a duty to =93protect=94 critical areas on their = property,=20 but are required to enhance them through huge buffers and = other=20 onerous actions, and have intimated local governments with = the=20 threat of expensive appeals and lawsuits. The Court=92s = decision has=20 basically negated their ability to continue to threaten=20 governments in such a manner.

The=20 case was Swinomish Tribal Community and Washington = Environmental=20 Council v. Western Washington Growth Management Hearings = Board, et=20 al. After years of arguments over the issue of what = constitutes=20 =93best available science=94 and how it should be applied, = the Supreme=20 Court clearly stated in its ruling that local governments = are not=20 required to follow the so-called =93best available = science=94 (BAS).=20

For years, interpreting what BAS means and how it = should be=20 applied has been a contentious one for builders and = developers. It=20 was the single most contentious issue in adopting Kitsap = County=92s=20 Critical Areas Ordinance last year. The county Planning=20 Commission, by a margin of 6-3 soundly rejected county = staff=92s=20 version of what constituted BAS. Yet the county = commissioners=20 voted 2-1 to adopt staff=92s version of the ordinance = anyway.=20 Commissioner Jan Angel was the dissenting vote, with = former=20 commissioners Chris Endresen and Patty Lent voting in = favor.

This landmark case involved a challenge by the = Swinomish Indian=20 Tribe and Washington Environmental Council (WEC) against = Skagit=20 County over its buffer sizes. The tribe and WEC argued the = =93best=20 available science=94 (BAS) requires mandatory buffers = along streams=20 and rivers. The tribe claimed farmers were required to = plant=20 200-foot buffers on their property along streams, which = had been=20 cleared over a century ago to make way for farming. The = County and=20 farmers argued the GMA does not force local governments to = follow=20 the so-called BAS. Instead, the County and farmers argued = that GMA=20 only requires they =93include=94 the science in their = decision making=20 process when enacting its critical areas ordinances.

The Supreme Court ruled in favor of Skagit County and = the=20 farmers, stating, =93The GMA does not require the county = to follow=20 BAS; rather, it is required to =93include=94 BAS in its = record. Thus,=20 the county may depart from BAS if it provides a reasoned=20 justification for such a departure.=94

The Building Industry Association of Washington (BIAW) = has=20 consistently argued in court and in the Legislature that = the GMA=20 doesn=92t require local governments to follow the BAS, and = believes=20 that over the years the BAS requirement has been hijacked = by=20 environmental extremists claiming to be scientists, and = creating=20 junk science mandating 200 to 300-foot buffers.

The lone dissent came from Justice Susan Owens, who, = prior to=20 being elected to the Supreme Court, just so happened to be = a=20 tribal judge.

The Supreme Court=92s decision is an absolute victory = for=20 property owners. The ruling will severely restrict the = three=20 Growth Boards=92 ability to force local governments to = impose large=20 buffers and enforce other onerous regulations on property = owners.=20 As a result, BIAW says its attorneys will monitor future = cases to=20 ensure that the Growth Boards are properly following the = Court=92s=20 precedent.

Related story:

Supreme=20 Court hands victory to property owners - click = here (pdf)=20

In accordance with Title 17 U.S.C. Section = 107,=20 any copyrighted work in this message is = distributed=20 under fair use without profit or payment for=20 non-profit research and educational purposes = only. [Ref.=20 = http://www.law.cornell.edu/uscode/17/107.shtml]

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