1. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington Ocean/Envir 260 Lecture 13: Overview, Land Use Law 1

2. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington Land Use Land use laws are “the most fundamental and pervasive environmental laws of all.” --Settle and Gavigan, University of Puget Sound Law Review (1993) “Private property is therefore a creature of society, and is subject to the calls of that society, whenever its necessities shall require it, even to its last farthing…” --Benjamin Franklin 2

3. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington Examples, Land Use Regulations Zoning –Residential, commercial, agriculture, forestry… –Intensity of development (e.g., density of housing, size of parcel, height of buildings, etc.) Development regulations –Stormwater management, impervious surface limitations –Limits on land clearing, grading –Lot coverage/maximum building footprint –Protection of critical areas (streams, wetlands, etc.) Impact fees for transportation, schools, parks, fire protection Hook-up fees for utilities –Or requirements for wells, septic systems 3

4. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington Some reasons why “most fundamental”… Land cover –Habitat itself, connectivity, downstream impacts Land use –Resources consumed, pollutants discharged Endangered species, clean water laws need to work through land cover/land use choices –Federal government generally cannot control directly 4

5. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington State Government Most important level of government for Puget Sound ecosystem –Framework for land use –Water rights –Implements most of CWA –Fish and wildlife regulations –Manages state lands –Broad “police power” to serve public interest 5 State Capitol: The legislature is the most important decision-maker for land and water, the keys to the Puget Sound ecosystem

6. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington Local Government Final land use decisions: –Regulations (within state framework) –Permits, enforcement Also… –Water, sewer utilities –Stormwater programs State most important for PS as whole, but local for particular watershed 6 King County Courthouse: local governments are key to implementation for key land and water issues for the Puget Sound ecosystem

7. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington Watersheds Land use key to ecological health –Counties are key decision-makers County, watershed boundaries differ –Political, management challenges –Less profound, but similar to U.S. and Canada 7 Almost all major watersheds cross multiple jurisdictions

8. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington Property Rights U.S.: Cannot “take” without “just compensation” –If can’t put to economic use –Reasonable “investment- backed expectations” In Washington state: “substantive due process” –Individuals should not bear public’s burden –“Unduly oppressive” test 8 Washington State Supreme Court provides added protections to property owners; see Fig 6-1, Saving Puget Sound

9. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington Land Use The Growth Management Act (GMA) is the “integrating framework” for all other state land use laws. –State Legislature, 1995, preamble to amendments to GMA GMA is therefore the single most important law for the future of the Puget Sound ecosystem 9

10. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington GMA Strategic Approach 14 goals, not prioritized –Concentrate growth, protect environment, property rights… Local decisions presumed valid unless found otherwise –Not “top down”, as in Oregon Specialized Hearings Boards hear initial appeals –“Clearly erroneous” standard –Appeals to Superior Court Meeting of Central Puget Sound Growth Management Hearings Board

11. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington GMA “Building Blocks” All lands (except federal and tribal) in one of three categories: –Urban (4+ houses/acre) –Rural (1 house/5+acres) –Natural Resource Forest Production Agricultural Production Mineral Production King County land use map: urban (within red line); rural (light green) forest (green); agriculture (dark yellow); mineral is site-specific

12. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington Critical Areas No “building block” for conservation areas –Critical areas receive special protections within building blocks –Examples: waterbodies, wetlands, wildlife habitat Also geologic and flood hazards, aquifer protection –Buffers usual strategy for protection 12 Skagit River. Three critical areas in one: river, floodplain, wildlife habitat

13. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington Critical Areas Three-part standard: –“Include best available science in developing policies and regulations” –“Protect functions and values” –“Give special consideration to…anadromous fisheries” Salmon streams receive extra protections as critical areas

14. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington Best Available Science “No net loss” of functions is impossible standard Buffers alone insufficient to protect habitat Larger landscape hugely influential –Hydrology –Water quality –Fragmentation Need a new “building block”? Healthy streams: buffers are only one issue, not necessarily most important

15. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington Vesting Freezes development regulations from change Developers, lenders need to reduce uncertainty But “invites subversion of public interest…” –Development proceeds in conflict with current standards “Creekside” Apartments, vested in Bothell before stream buffer protections put in place

16. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington Vesting State Supreme Court “simply announced a new rule of law” (1954) Evolved to vest at preliminary application to subdivide property –Earliest stage of development process in U.S. Vesting: even supporters acknowledge current law is product of “judicial activism”

17. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington Vesting Obstacle to GMA –Much development with at least preliminary applications in place –Can file new applications before laws change Obstacle to regional conservation strategy –Science, laws will evolve Anderson Island, Pierce CO: ostensibly “rural”, but all darker parcels more dense

18. Ocean/ENVIR 260 Autumn 2010Lecture 13© 2010 University of Washington Recap: Land Use State government: Most important level for Puget Sound ecosystem Property rights: Evolve over time, strict in WA GMA: Single most important law for Puget Sound ecosystem Current approach to ecological functions guarantees ongoing decline Vesting laws are key further constraint