Supreme Court Rules 8-1 Against Mandatory Buffers

9/23/07

Island Guardian

In what some are calling a “stunning 8-1 decision” on a GMA (Growth Management Act) issue involving “best available science” (BAS), the Court has given guidance to what local governments can, and cannot do, as they write, and update, their Critical Area Ordinance (CAO).

The ruling is timely for San Juan County, as they are in the process of updating the county CAO. The next meeting of the SJC CAO Review Committee is scheduled for September 20 and 27 (at the FH Grange, 8:45 a.m. - 1:45 p.m.), and an agenda item is “issues or concerns from State perspective” on the “Draft Best Available Science Document for Critical Aquifer Recharge Areas”.

the Washington Supreme Court ruling was related to buffers along streams and rivers in Skagit County, and found that they are not mandatory, and that while local governments are required to review “best available science” (BAS) -in the process of reviewing options to meet GMA requirements- they are not required to follow the BAS if they can demonstrate a justification for not doing so.

Another potential important impact for SJC is the upholding by the Court of the GMA ruling on Skagit County’s “no harm” standard”. The Tribe had argued that if it can be shown that an area is in a “degraded condition, it is not being protected ”, and that GMA requires that the County have regulations so that the “condition is improved or enhanced”. The Court did not agree, and ruled for the GMA finding “that the county protects these areas by adopting the no harm standard because it does not allow existing conditions to further degrade.”


There are a number of other findings in the Court’s ruling that may impact not only how SJ County regulates land use actives, but how they process building permits. Under Ron Hendrickson’s directorship of the building department, words (e.g. “bedroom”) not defined in county regulations have not been defined by use of a dictionary, as required by the county code, but have been given new and arbitrary definitions. in a discussion about the meaning of words not defined in a regulation, the Court cited the case of Quadrant Corp., Dahl-Smyth, Inc. v. City of Walla Walla, and stated that if a word is not defined in a regulation “We therefore accord the word its common meaning, and where necessary, consult a dictionary.”

Another interesting part of the ruling that relates to local environmental activates, is the statement by the Court in reference to “benchmarks” of existing conditions, GMA regulations describe “critical areas regulations are ‘treated as experiments that are purposefully monitored and evaluated to determine whether they are effective and, if not, how they should be improved to increase their effectiveness.’" According to statements by the San Juan Initiative and the Marine Resources Committee, one of their goals is to do just that: find out what works to protect the environment, was does not, and look for ways to fill any gaps that may exist.

The state Building Industry Association of Washington (BIAW) issued a statement calling “The Supreme Court’s decision is an absolute victory for property owners and an astounding blow to the environmental extremists.” The BIAW stated their “attorneys will diligently monitor future cases to ensure that the Growth Boards are properly following the Court’s precedent.”

Richard Civille has been active in the SJ County Economic Development Council, and sent out a statement that the “William J. Rucklehaus Center has begun a several year review of CAO policies required from last spring’s legislation on the 4 year moratorium of agriculture buffers and can be expected to be influenced by these findings in making future recommendations for regulatory reform.”