Steve Hammond

King County's rural-land restrictions go too far, court rules

By Keith Ervin

Seattle Times staff reporter

In a case that could determine how far local governments can go in limiting forest-clearing across entire watersheds, a state appeals court ruled Monday that a King County law went too far.

Rural property-rights advocates hailed the decision as repudiating excessive regulation, while environmentalists said it could degrade some of the county's most pristine streams and further jeopardize Puget Sound's threatened chinook salmon.

A three-judge Court of Appeals panel ruled that the 2004 clearing and grading ordinance — part of a package of laws collectively but imprecisely called the critical-areas ordinance — is an indirect but illegal "tax, fee, or charge" on development.

Before the county restricts how much land a property owner can clear for lawn or pasture, the unanimous court said, it must show that the clearing of that property would cause some kind of harm.

One of the most far-reaching laws of its kind, the ordinance prohibits landowners from removing vegetation from more than half of a property larger than 1-¼ acres or more than 35 percent of a property of five acres or more.

The Citizens' Alliance for Property Rights (CAPR) and five landowners sued in 2005 to overturn the law, which was adopted by the Metropolitan King County Council on a 7-6 vote along party lines.

"I am a happy man today," said Steve Hammond, who voted against the ordinance as a Republican council member and is now president of CAPR. "The civil rights of the rural folks have been upheld. I think there are a lot of problems with the critical-areas package of ordinances, but the most egregious problem was addressed today by the court."

Rodney McFarland, who was CAPR president when the suit was filed, said the law, a "one-size-fits-all, 50 to 65 percent taking, was a very radical move by the county to tie up a huge swath of private property."

Kathy Fletcher, executive director of People for Puget Sound, was among environmentalists dismayed by the court's decision.

"The ordinance was critical to the county's ability to maintain healthy watersheds and that — the stormwater issue — is one of the key issues for the health of Puget Sound as well," she said. "This is a ruling that, if it's upheld, is going to make it very much more challenging to restore the health of Puget Sound."

The law was written after county biologists compiled scientific studies, some of which said the health of streams seriously deteriorates when 30 percent of a watershed's forest cover is removed.

Appeals Court Judge Ronald Cox, in an opinion endorsed by colleagues Susan Agid and Anne Ellington, wrote that state law restricting taxes on development prohibits the county from limiting development without showing the effects of the specific proposal.

"The plain language of the statute does not permit conditions that are reasonably necessary for all development, or any potential development," Cox wrote.

The judges rejected King County's argument that the county ordinance was legal because it followed the state Growth Management Act's mandate that local governments use "best available science" to regularly update ordinances that restrict development around critical areas such as streams, wetlands and steep hillsides.

County Executive Ron Sims, who proposed the clearing restrictions, issued a written statement saying he was "very disappointed" with the ruling, which he said "fails to recognize that these clearing limits help recharge groundwater used by property owners for their drinking water" and help prevent floods.

Sims said the ordinance remains in effect while the county decides whether to appeal Monday's court ruling to the state Supreme Court.

County Council Democrats Julia Patterson, Dow Constantine, Larry Phillips and Larry Gossett said in a joint statement that regulating properties on a site-by-site basis "would be burdensome and expensive" for the county and for landowners. Democrat Bob Ferguson declined to comment before reading the court ruling, council spokesman Frank Abe said.

The council's four Republicans welcomed the court decision. "Small-property owners — not the county — are the best stewards of the land," said Councilmember Reagan Dunn, adding that the clearing ordinance "was a blunt instrument used to strip residents of their property rights."

Keith Ervin: 206-464-2105 or kervin@seattletimes.com