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In Washington State, Property Rights Take Back Seat to the Environment, Court Rules

August 30, 2017

The Washington State Court of Appeals ruled the public’s interest in protecting the environment trumps the right to use one’s property.

The Washington State Court of Appeals ruled the public’s interest in protecting the environment overrides the right to use one’s property.

In Olympic Stewardship Foundation v. State of Washington Environmental and Land Use Hearings Office, several property owners challenged Jefferson County, Washington’s 2014 Shoreline Master Program developed at the direction of and with approval from the Washington State Department of Ecology.

The Shoreline Management Act of 1971 requires each county to adopt and administer a Master Program to protect shorelines “against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life.… The legislature declares that the interest of all of the people shall be paramount in the management of shorelines of statewide significance.”

Based in part on that passage, the appeals court in June upheld a Jefferson County ordinance requiring all shoreline property owners to dedicate a 150-foot buffer as a mandatory condition for any new development. The opinion also requires certain property owners to dedicate public access easements across their land.

Says Court Erred

Brian Hodges, managing attorney of the Pacific Legal Foundation’s Northwest Center, said the appeals court effectively legislated the Constitution’s Fifth Amendment protections for property rights out of existence.

“In the Olympic Stewardship decision, the court found a reference to a right to a healthful environment in a provision of the State Environmental Policy Act, and treated it as a fundamental right which supersedes the right to property,” Hodges said. “As a result, the court effectively ruled there is no fundamental, constitutionally protected right to use one’s property.

“The requirement shoreline property owners must provide a public right of way across their land to public waters is the same rule the U.S. Supreme Court struck down as unconstitutional in Nollan v. California Coastal Commission [in 1987],” said Hodges. “In another mistake, the court rendered property rights ‘secondary’ to the public’s interest in the environment, a position that stands in stark contrast to U.S. Supreme Court case law, which makes clear states cannot extinguish property rights simply by enacting a law.”

Property Rights ‘Fundamental’

Hodges says higher courts will likely have the final say in this case.

“I anticipate the property owners in this case will take their case to the Washington Supreme Court and the U.S. Supreme Court if necessary,” Hodges said. “The U.S. Supreme Court has determined the Takings Clause was established to protect individuals from having to bear the burden of the public good, so hopefully a higher court will correct this court’s errors, the most obvious being that any act of the legislature could render a fundamental constitutional right secondary to any public interest.” 

Kenneth Artz (kartz@heartland.org) writes from Dallas, Texas.

Author
Artz has more than 20 years’ experience in nonprofit organizations, publishing, newspaper reporting, and public policy advocacy.
iamkenartz@hotmail.com @@KennethArtz

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