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.

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)