By the end of next year, Clark County’s comprehensive plan for rural areas will have undergone the most significant change since the early 1990s. This new plan will define the character of our rural lands for at least another decade, altering zoning, parcel sizes, development areas, environmental regulations, open space requirements and the funding and leadership governing utilities.
As we consider the direction Clark County will take, it also does well to remember the guidelines state law provides to local governments. Although counties have significant discretion in regulating rural areas, landowners hold significant rights protected vigorously by the courts.
In connection with the 2009 Comprehensive Plan revision, the Board of County Commissioners’ Rural Lands Taskforce (made up of 12 longtime residents) recently completed a months-long effort to define the vision for rural lands in Clark County.
The taskforce recommended protecting wetland and wildlife habitats, maintaining natural landscape over built-up environments, easing regulations and providing tax incentives to encourage small-scale agriculture and forestry.
These concerns resound throughout the state, but a recent Court of Appeals decision overturning King County’s open space ordinance is a necessary reminder of the rights held by Washington landowners. The case (Citizens’ Alliance for Property Rights v. Sims) provides guidance to local governments in determining the conditions on development that may be legally imposed.
The King County open-space ordinance in Sims requires that each rural landowner leave between 50 and 65 percent of the total property in its natural landscape.
In other words, a rural property owner in King County is only allowed to develop half (or less) of the land he or she owns. Further, owners are not relieved from paying taxes on the undevelopable portion of each lot.
The Court of Appeals unanimously ruled that the King County open space ordinance is an unlawful in-kind indirect “tax, fee or charge” on land development. In contrast, only the state government may levy such taxes, fees or charges on development. Counties may only impose such assessments when state law specifically allows it.
The Sims decision may be familiar to those who remember a similar Camas ordinance that required a 30 percent open space set-aside. The Camas law was overturned in 2002 in the case of Isla Verde International Holdings Inc. v. City of Camas. In both instances, the courts explained how governments can regulate land development while respecting land development.
First, the purpose of any “condition” (such as an easement, dedication, open-space requirement, etc.) must be to mitigate problems directly caused by the particular development being proposed. A common example is requiring a developer to build and dedicate a road alongside a proposed row of houses.
Residents of the new houses will cause additional traffic and the road alleviates this additional burden on the infrastructure.
Second, the extent of the condition on the landowner must be proportional to the actual impact of the proposed development. Thus, if a local plumbing store proposes to build a 10,000-foot addition, the city cannot require the store to dedicate an acre of land to connect to a city bike route.
Why? Although the store might generate some additional bike traffic, the fact is that a very small percentage of cyclists will ever come to the store. How many cyclists leave home for the plumbing store and return with a toilet strapped to his or her bike?
In other words, requiring an acre dedication to “alleviate” bike traffic is simply not proportional to the impact caused by the plumbing store.
What local governments may not do – and what the open space ordinances in Sims and Isla Verde did – is impose a condition on development that forces rural land owners alone to bear the burdens that should be borne by the community as a whole. But with this key principle in mind, Clark County has wide discretion to preserve natural areas and implement the goals and visions of local residents.
Steve Morasch is a shareholder in the Vancouver office of Schwabe, Williamson & Wyatt. He can be reached at smorasch@schwabe.com.
