Critical areas a critical matter

JULIA A. YOUNGS
SEATTLE POST-INTELLIGENCER COLUMNIST

Oct. 14, 2004

King County, WA - On Monday, the King County Council will again discuss the Critical Areas Ordinance in a public meeting. The ordinance is a response to the Growth Management Act's requirement that the county review and update its regulations surrounding critical areas such as wetlands, wildlife habitat, surface water and those that are geologically hazardous.

Unfortunately, the reality of this CAO is that a small group of rural citizens unjustly and unnecessarily would forfeit control of most of their property.

The most hotly debated aspect of this legislation is whether it constitutes an unconstitutional "taking" of private property. Everybody knows that the government cannot simply knock down your house and build a power plant without compensating you for your loss. But what happens when the property owner is prohibited from doing anything with a majority of his or her land?

What if the government told Seattle dwellers that they had to restrict the use of their house -- only allowing them to heat one-third of the rooms to save energy or only allowing furniture in the living room? Article 1, Section16 of the state constitution requires that "just compensation must be made before private property is taken or damaged." Even under the recently modified CAO, property owners are being told they must leave 50 percent to 65 percent of their land in its natural state without any compensation for the loss of use.

While there's no clear definition of property damage under the Washington constitution, my Random House defines it as "injury or harm that impairs value or usefulness." It's clear that a severe restriction on the use of up to 65 percent of your property qualifies as damage under this definition and compensation is due.

Perhaps the most disturbing aspect of the CAO is the lack of representation of or accountability to those whose property is on the line. The King County Council has no jurisdiction over land use in urban, incorporated areas but 10 of the 13 members are from urban areas and only three are from rural areas. What we have is a legislative body in which more than 75 percent of the voting members are able to significantly impair the value of private property owned by people they are not accountable to. It is neither just nor equitable for a majority to insist that a small group shoulder the cost of something that benefits us all.

It would be both expedient and convenient for those of us residing within city limits to foist the burden of protecting our environment and maintaining our beloved open spaces and rural areas on the few who live there; after all, there are more of us than them. This kind of governance, however, is what sparked the American Revolution -- the powerful majority in Britain creating restrictions and taxes upon the rural minority in the colonies.

While this analogy sounds extreme, there are modern parallels. Sam Rodabough, of Pacific Legal Foundation in Bellevue, finds striking similarity between the CAO in King County and the rural land use restrictions in Oregon. If the result in Oregon is any indicator, passage of the CAO will result in significant public backlash. In 1998, Oregon voters passed Measure 7, which amended their constitution to require compensation for takings resulting from excessive regulation. Measure 7 was subsequently overturned in court because it made more than one change to the state constitution. This year, Measure 37 is on the ballot there and proposes to accomplish the same result statutorily. While hotly debated in the media, it appears that the initiative will pass. In Washington, our strong initiative process virtually guarantees that passage of this CAO would be followed by voter-sponsored ballot measures.

The state has set a Dec. 1 deadline for King County to review and update its regulations protecting critical areas using the "best available science." Since there is little agreement on what the best available science actually is, let alone what conclusions are to be drawn, we have little basis to enact such sweeping restrictions. CAO proponents insist the county must pass legislation by the deadline to be in compliance, but this is an alarmist ruse. The only required action is that the regulations be reviewed. If the regulations are determined to be current, no further action is required.

It's yet unclear whether the council will vote on the issue Monday. We need representatives from the affected rural areas and city residents there to voice opposition to this measure and insist upon legislation that protects the environment and the rights and liberties that we have under our constitution.

Julia A. Youngs is a graduate of the University of Washington law school; she can be reached at juliayoungs@mail.com.