By Theda Braddock Fowler
Under the Growth Management Act (GMA), counties and cities are required to designate and protect critical areas functions and values within their boundaries. Periodically these Critical Area Ordinances (CAO) must be updated. King and Snohomish County are in the process of updating their CAOs with a completion date of December 1, 2004. Of special note to developers and owners of property with critical areas, King County is proposing to increase the buffer area around certain critical areas to 300 feet or more. Such extensive new buffers will drastically reduce the amount of developable land in King County.
Critical areas are defined as wetlands, areas with a critical recharging effect on aquifers used for potable water, frequently flooded areas, geologically hazardous areas, and fish and wildlife conservation areas. In August of this year, the State Department of Community Trade and Economic Development published a “Model Ordinance” for counties to refer to in the update process. The Model Ordinance recommends at least a 300-foot buffer for high quality wetlands.
Snohomish County, on the other hand, has published a “Concept Draft” for its CAO update. In it you will find some interesting concepts in contrast to King County. Snohomish County has added marine shorelines and lakes to its list of critical areas. Instead of a 300-foot wide buffer, Snohomish has 30 to 100-foot buffers plus a “management zone” of varying widths to address stormwater considerations. Snohomish’s draft distinguishes between the natural and as-built environment and provides different protection in the as-built environment. Buffer zones may be reduced if existing functions and values of the critical area are not decreased. Snohomish’s approach is at least more flexible than King County’s.
In devising these state-mandated updated ordinances regulating development to protect the functions and values of these critical areas, counties and cities are also required to use “best available science.” “Best available science” was added to the GMA in 1995. Under this concept, local governments must identify, collect, and assess the available scientific information and then determine which of that science is the “best.” In an effort to be helpful, in 1998, the Department of Community Trade and Economic Development convened a team of planners and scientists to draft rules for obtaining and utilizing best available science. Those rules took effect in August of 2000. Unfortunately there is very little agreement on the best available science for critical area buffers.
Right now in Snohomish County, for example, wetland buffer widths vary between 10 and 100 feet. The Model Ordinance, on the other hand, recommends buffer widths be increased in the update process to between 35 and 300 feet (or more if the vegetation community in the buffer is inadequate). In yet another publication, the State Department of Community Trade and Economic Development’s “Critical Areas Assistance Handbook,” recommends that cities and counties consider wetland protection guidance provided by the Department of Ecology (DOE). DOE published a draft review of the literature on freshwater wetlands in August 2003.
Of the 79 buffer studies reviewed, in the section of that document on buffer widths, only 11 discussed buffers of 300 feet or more. In fact, the studies reveal that a 98-foot buffer removes 70% of sediment while a 164-foot buffer removes only 5% more sediment. And in other states, such as Maryland, buffers around critical areas range from only 25 to a maximum of 100 feet with the 100-foot buffer used only if there are special considerations like steep slopes.
Resolving this confusion is very important from a legal perspective. The 1922 case, Pennsylvania Coal v. Mahon, teaches us that values incident to property ownership may be diminished by government regulation-government could hardly go on without it-but when a regulation goes too far, then the government must compensate the owner for the value of the property interest taken by the regulation. More recently, Nollan v. California Coastal Commission and Dolan v. City of Tigard add the requirement that, under the government’s police power, there must be a nexus between then government exaction and the perceived evil being abated. Further, the exaction must be in proportion to the abatement of the evil.
In the case of wetland buffers, if a statute is enacted that over-regulates the use of property by requiring massive buffers, particularly if there is ample science out there that belies the necessity of so wide a buffer, then a property owner could complain that his property has been taken, for which he is entitled to just compensation, or that the regulation was not a valid exercise of the police power. These are important considerations right now as Snohomish and King Counties move through their Critical Area Ordinance update process.
Theda Braddock Fowler practices of counsel with Mikkelborg, Broz, Wells & Fryer, PLLC, Suite 3600, 1001 Fourth Avenue, Seattle WA 98154. She has over 15 years experience in environmental and land use law. This article solely expresses her views and is not meant as an endorsement by KCBA.
