COURT STRIKES DOWN CAO’S 65 PERCENT
SET-ASIDE RESTRICTION ON PRIVATE PROPERTY

Ordinance Forcing Rural Landowners to Forfeit 2/3 of Their Property is One of the Most Extreme Property Regulations in the U.S., PLF Says

SEATTLE, WA; July 7, 2008: Ruling in a lawsuit filed by Pacific Legal Foundation attorneys, the Washington State Court of Appeals today invalidated the 65 percent set-aside rule, in King County’s Critical Areas Ordinance (CAO). Passed during a midnight session of the King County Council in October, 2005, this ordinance requires rural property owners in King County to set aside 50 percent to 65 percent of their property in a permanent state of "natural vegetation."

"This is a great day for King County property owners, who – after almost four years – have been given back their property," said Brian T. Hodges, an attorney with PLF’s Northwest office in Bellevue, WA. "By invalidating the 65 percent set-aside rule, the Court of Appeals made it clear that the County had no authority to deprive residents of the use of their own private property."

The appellate court held that the 65 percent set-aside rule violates a state law prohibiting a "tax, fee, or charge" on land use. Case law establishes that this prohibition "applies to ordinances that may require developers to set aside land as a condition of development," wrote Judge Ronald Cox in a unanimous decision joined by Judge Susan Agid and Judge Anne Ellington. None of the limited exceptions in the law apply, the court noted. For instance, the state’s Growth Management Act does not require CAO’s uncompensated restrictions on landowners’ use of their property.

PLF is the nation’s leading watchdog organization that litigates for property rights in courts across the country. In the CAO challenge, PLF attorneys represent the Citizens’ Alliance for Property Rights. The alliance turned to PLF after the King County Superior Court rejected the grassroots group’s attempt to place the CAO issue on the ballot. Individuals challenging the ordinance include avid gardeners, horse owners, and other property owners. All of them had their plans to reasonably use their private property derailed by the CAO.

Specifically, the CAO limits rural landowners with five acres or more to clearing only 35 percent of their property, forcing them to maintain the remaining 65 percent as native vegetation indefinitely. Rural landowners owning less than five acres may clear only 50 percent of their parcels. Affected landowners were not compensated and were not relieved from paying taxes on the portion of the property rendered useless by the CAO.

Over the many months leading up to its passage, King County residents loudly voiced their opposition to the CAO. Countless rural landowners testified that they would be adversely affected by the new clearing limitations. Rural landowners and real estate agents testified that the CAO was scaring off potential buyers. Scientists testified that there was no evidence that the ordinances were necessary to protect the environment, health, or safety of the community.

The county executive officer promoted the CAO as necessary to address environmental concerns in King County, but the County’s own report, released before the CAO was passed, contradicted this contention. The King County 2004 Annual Growth Report, released October 19, 2004, stated:

 "Loss of forest cover and net loss of wetland in King County has slowed to a standstill. Rural and forest areas remain relatively undeveloped and continue to provide habitat for fish and wildlife, and protect surface water flows .... Streams and habitat in our rural areas are still of high quality."

"In short," PLF argued in its complaint, "the Report demonstrated that the land use regulations already in force sufficiently protect the environment, health, and safety of the public, and that the additional proposed restrictions in the [CAO] were unnecessary."

"The Court of Appeals ruling is a welcome vindication of property rights against arrogant, unbridled government power," said PLF’s Brian Hodges today.

The case is Citizens’ Alliance for Property Rights v. Sims. Today’s appellate court decision is also online.

About Pacific Legal Foundation
Pacific Legal Foundation (www.pacificlegal.org) is the oldest and most successful public interest legal organization that litigates for property rights, limited government, and a balanced approach to environmental protection, in courts across the country.