A shot across the land-use bow

There’s been a frenzy of activity this month surrounding a controversial King County ordinance that governs the way people can use their land.

There’s been a frenzy of activity this month surrounding a controversial King County ordinance that governs the way people can use their land.

It started with a judgment handed down by the state court of appeals on July 7 which ruled that the county’s clearing and grading ordinance — part of a three-rule package collectively known as the Critical Areas Ordinance, or CAO — was invalid.

Steve Hammond, current president of Citizens Alliance for Property Rights which brought the original lawsuit in 2005, said the 3-0 decision “was sweeping.”

“I’ve spent a lot of time trying to keep this from getting ugly. Then a court decision comes along and you say, ‘Ah, there really is some justice,’” Hammond said. “And you go back to people and say, look, we can do this the right way.”

The day the court offered its ruling, County Executive Ron Sims said the ordinance would remain in force while he considered an appeal. A few days later, he announced an appeal would be filed.

In the meantime, Republicans on the County Council lauded the judgment, as well as proposed some changes to the CAO.

Councilman Reagan Dunn, chairman of the council’s Republican caucus, represents Covington and Maple Valley in the 9th District. Large portions of the district are also unincorporated areas of King County.

““Small property owners – not the county – are the best stewards of the land,” Dunn said. “The CAO was a blunt instrument used to strip King County residents of their property rights. (The appeals court) ruling is a vindication for families who are struggling under the weight of these onerous regulations.”

On July 10, the Republican council members introduced a repeal of the rural clearing limits imposed by the clearing and grading ordinance.

“My colleagues and I urge the council to act on this, thereby saving our county taxpayers two more years of unnecessary legal bills,” Dunn said. “This ordinance takes us back to the system we had prior to the unlawful rural clearing limits. We want to work with our Democratic colleagues to fine-tune that system and make it better for the people who live there.”

The limits that were passed in 2004 that become such a bone of contention between rural residents and the county were based on a on 65/10 model. It required that 65 percent of a development site would remain in native vegetation and allow up to 10 percent to be covered by impervious surfaces.

According to the Republicans on the council, that standard was developed specifically for the Issaquah Basin and is most applicable to areas with similar rainfall, vegetation, soil and topography.

According to Hammond, who was on the council at the time, the ordinance passed four years ago along political party lines in a 7-6 vote expanded that 65/10 model to apply to all rural-zoned parcels, except for less than five acres, to qualify for 50 percent clearing.

The repeal proposed this month by the four Republican council members would return the county’s laws to what existed prior to the adoption of the CAO package with the 65/10 model being retained for the Bear Creek Basin, Issaquah Creek Basin, Soos Creek Basin, May Creek Basin, and East Sammamish and Bear Creek Community Planning Areas.

All clearing activities more than 7,000 square feet will continue to require a clearing and grading permit.

Undue burden?

Hammond described the ordinance as an end-around approach to protect the environment while skirting eminment domain.

“Let’s just say it’s for clean air and clean water, the public doesn’t have to pay, let’s just have the landowner make a gift,” Hammond said. “I’ve tried to tell people that until you try to get a building permit out of DDES (the county’s Department of Development and Environmental Services), you have no understanding of the cost.”

Hammond said the ordinance has put an undue burden on rural property owners who are paying a hefty price to protect the environment, while others that aren’t subject to the rules also reap the benefits.

“You can’t just say that a guy who wants to put in a bunch of houses is the same as a guy who wants to put up a carport,” he said. “The big developers find a way to take care of themselves. But the small mom and pop who put out $600,000 to buy some property, they shouldn’t have to put out a $400,000 donation for the public good. What I’ve been saying all along is this is an attempt to get a public benefit by forcing the cost on the private landowner.”

Hammond, speaking prior to the announcement of the decision to appeal the ruling, said, “The cost of an appeal under the current budget restraints wouldn’t be a wise use of taxpayer money when you’ve lost that badly in a previous decision.”

On July 10, Sims announced that the county would appeal the appellate court’s ruling.

Sims said in a statement that the court decision isn’t consistent with long-standing standards for how local governments regulate land-use and zoning.

“If this ruling stands, it will have far reaching and negative impacts on local governments’ ability to regulate land-use to protect people, their property and their quality of life,” Sims said. “The clearing and grading ordinance is based on scientific data that clearly shows negative impacts on people’s well water, rivers and streams and neighboring properties from excessive clearing.”

Sims added the clearing requirements don’t prevent anyone from building a home or other development consistent with local zoning, but rather prevented the wholesale clear-cutting of land when there isn’t another legitimate purpose, such as farming or forestry.

It is further argued by Sims and DDES, which issues permits for projects in unincorporated areas of the county, that the uniform rules offer certainty and predictability in the laws while providing some flexibility.

DDES officials are concerned that requiring more site-specific review of each development proposal would lead to slower reviews and increase the cost of development.

Members of Citizens Alliance for Property Rights planned a party for July 12 to celebrate the court ruling.

Hammond said that because those who are in favor of maintaining the rules – and who are still in the majority on the County Council — live in Seattle and are elected by voters who aren’t affected by it, then the justice system likely remains the only way to fight the CAO.

“They’re immune from our votes,” Hammond said. “Trying to go after the whole package at once is like trying to go after a swarm of bees. There still are a whole host of rules that will still basically prevent people from seeing their dream come true, unless we get some relief from the courts.”

Staff writer Kris Hill can be reached at (425) 432-1209 (extension 5054) and khill@reporternewspapers.com