Appeals court opinion on critical areas may place the burden of review on property owners

Appeal to State Supreme Court is possible

Councilmembers Dow Constantine, Julia Patterson, Larry Gossett and Larry Phillips issued this statement today in response to a ruling from the state Court of Appeals:

“Today's opinion from Division One of the state Court of Appeals invalidating part of the county's Clearing and Grading Ordinance raises legal issues which need to be resolved by the state Supreme Court, potentially through the appeals process. It does not relieve King County of any of its obligations under the state Growth Management Act (GMA) to protect the environment, economy and quality of life.

“The Appeals Court redefines a particular land use regulation - a rule that a portion of forest cover be retained to protect drinking water and streams and prevent flooding - as a ‘tax, fee or charge’ on development under a statute separate from the GMA. Court opinions on this issue are split.

“Today's decision would mean that King County would have to comply with two contradictory statutes. The County must comply with the GMA and protect resources throughout the region, but under this ruling would have to study each proposed development site and apply specific rules to it.

“This could lead to more stringent or – as is possible with the currently available rural stewardship plan— less stringent restrictions on any particular site. Site-by-site regulation would be burdensome and expensive for both the County and individual landowners, and contrary to the mandates of the GMA.

“King County's forest cover is critical for protecting communities from flooding and maintaining clean water in our streams, rivers, and lakes, and the Court of Appeals accepted all of King County's science on the regional impacts of deforestation on these irreplaceable resources. We recognize the importance of King County’s continued obligations under the state Growth Management Act to protect environmentally critical areas, and we support the preservation of the natural environment, enhancement of the rural economy, and maintenance of the high quality of life that King County residents enjoy.”