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King County Council approves controversial Critical Areas Ordinance on October 25, 2004.
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On October 25, 2004, the King County Council approves three controversial ordinances, known collectively as the Critical Areas Ordinance or CAO, that limit rural development, in an effort to protect the environment and comply with the state Growth Management Act's requirement that regulations be based on the "best available science." The Critical Areas Ordinance itself enlarges already-required buffers, where development is limited, around streams, wetlands, and steep slopes. The surface water management ordinance increases restrictions on stormwater runoff from development. Both are contested, but the greatest outrage is generated by the clearing and grading ordinance, which requires that 50 to 65 percent of land that has not been cleared be left in natural vegetation. Unlike earlier environmental regulations that, even when controversial, were passed by large bipartisan majorities, the CAO ordinances are approved on 7 to 6 party line votes with Democrats in favor and Republicans opposed. The approval triggers demonstrations and a host of legal challenges.
Neither limitations on development to protect the environment nor controversy over how far regulation should go were new to King County. When politicians responded to voter concern over uncontrolled growth by enacting laws like the County's Sensitive Areas Ordinance and the state Growth Management Act (GMA), they soon faced a backlash from other citizens. Responses included a push for eastern rural areas to secede from King County (rejected by the Supreme Court in 1998) and a "property-rights" initiative to require compensation for land-use restrictions (rejected by voters in 1995).
"Best Available Science"
The 2004 CAO controversy originated in a 1995 amendment to the GMA that, in an effort to insulate environmental protection from political pressure, required that critical areas regulations be based on the "best available science." The requirement had no immediate effect in King and other counties that already had critical areas regulations in place. However, it became a factor in 2004 because the GMA required counties to update their protections, using best available science, by that December 1.
County planning staff and scientific consultants spent more than a year identifying and studying "best available science" to prepare updated CAO provisions that County Executive Ron Sims (b. 1948) formally presented in February 2004. County biologists concluded that the science called for leaving at least 65 percent of rural watersheds covered by forest or native vegetation. Clearing beyond that point, they explained, would cause irreparable harm to streams, drinking water, wildlife habitat, and other crucial natural systems. The scientists also concluded that some of the county's existing buffers needed to be increased to adequately protect critical areas, for example widening the undevelopable strip along major salmon streams from 100 to 165 feet.
Opposition and Support
Sims' proposal was greeted by vehement and continuing opposition from rural residents claiming that the CAO, especially the clearing limit, would prevent planned uses of their property. Opponents said existing restrictions were sufficient to protect the environment and complained that they were asked to sacrifice for the benefit of city dwellers. Many, including some who had sought to limit rural development, were particularly angered that those who had already cleared property escaped the restrictions. Rodney McFarland, president of the Citizens Alliance for Property Rights, said "The whole weight of this thing now comes down square on those folks who haven't developed, the folks who are the reason we still have wonderful areas out here" (Langston, "Relaxing ...").
Other rural citizens supported the CAO proposals. They felt the measures would protect their well water and preserve areas for those who want to live near forests and wildlife. Some who lived in the four county watersheds where a 65-percent-natural-vegetation requirement was already in place said that the restriction left plenty of room for homes and other amenities, provided assets like nearby forests and salmon streams, and actually increased property values.
Led by Democratic Councilmember Dow Constantine (b. 1961), whose district included both urban West Seattle and rural Vashon Island, the County Council worked to modify Sims' proposal in response to rural concerns. One of the more significant changes was reducing the 65-percent requirement for smaller properties, by allowing owners of five acres or less to clear up to half the land. The Council eliminated some other proposed restrictions and sought to make the CAO's permit requirements easier for citizens to navigate.
CAO opponents, including Republicans on the Council, called the changes insufficient but in a marathon session on October 25, 2004, the Council turned back many efforts to further loosen the restrictions, often on party line votes. In separate votes approving the clearing, stormwater, and critical areas ordinances, the seven Democrats voted yes and the six Republicans no. Republican Councilmember (and future state Attorney General) Rob McKenna (b. 1962) denounced the CAO as "the most draconian land-use regulations in the state, if not the country" (Ervin). But Constantine stated, "For generations to come, this legislation will help prevent flooding and erosion and protect our drinking water, streams and wetlands from being degraded by new development" (Langston, "King County Council OK's ...").
Challenges to the CAO did not end when it passed. A "Horse Trailer Brigade" of pickups and trailers carrying horses, dogs, and hay bales and festooned with anti-CAO signs tied up downtown Seattle traffic in a November 23, 2004, protest. Property-rights activists collected signatures calling for a referendum to overturn the CAO, but the courts, citing a 1994 state Supreme Court ruling that ordinances adopted to implement the GMA are not subject to referendum, rejected the effort. Longtime property-rights activist Maxine Keesling appealed the ordinances to the Growth Management Hearings Board (GMHB), which upheld the CAO in a July 2005 order. Some rural residents revived talk of seceding from King County.
The King County CAO was also a motivating factor behind a renewed push for a state property-rights initiative in 2006. The sponsors of I-933 listed the CAO as their first example of unreasonable governmental regulation, but state voters decisively rejected the property-rights proposal in the November election.
Although the court and GMHB rulings allowed the CAO to take effect, they did not end the legal challenges. In July 2008, more than three years after the Citizens' Alliance for Property Rights and five individual landowners filed a lawsuit challenging the controversial limitations on land clearing, the state Court of Appeals ruled in their favor. Reversing a superior court decision that upheld the limits on clearing, the appeals court ruled that the requirement that 50 to 65 percent of currently uncleared land be left in natural vegetation violated a state statute prohibiting local governments from imposing any direct or indirect "tax, fee, or charge" on land development.
Gordy Holt, "King County Secessionists Ponder Land-Use Controls," Seattle Post-Intelligencer, May 4, 2005 (http://seattlepi.nwsource.com); Jennifer Langston, "Rural Landowners Take To Streets," Ibid., November 24, 2004; Langston, "'Critical Areas Ordinance' Provokes Bitter 'Rural Vs. Urban' Dispute," Ibid., November 16, 2004; Langston, "King County Council OK's Controversial Limits On Developing Rural Land," Ibid., October 26, 2004; Langston, "Relaxing of 'Critical Areas' Restrictions Proposed," Ibid., September 17, 2004; Holt, "Anxiety High As Deadline Looms To Get Politics Out of Land-Use Laws," Ibid., September 1, 2004; Neil Modie, "Proposed Land-Use Changes Would Boost Density, Ease Rules In Rural Areas," Ibid., February 27, 2004; Ashley Bach, "King County's Rural Citizens Get Day In Court," The Seattle Times, November 5, 2005 (http://archives.seattletimes.nwsource.com); Keith Ervin, King County Approves Three Land-Use Regulations," Ibid., October 26, 2004; "Why Vote Yes," Property Fairness Coalition website accessed September 15, 2006 (http://www.propertyfairness.com/whyvote.htm); "Why Vote No," No On 933 website accessed September 15, 2006 (http://noon933.org/why_vote_no/index.php); "Final Decision and Order," Keesling v. King County, Case No. 05-3-0001, Central Puget Sound Growth Management Hearings Board website accessed September 15, 2006 (http://www.gmhb.wa.gov/central/decisions/2005/05301KeeslingFDO20050705.pdf); Whatcom County v. Brisbane, 125 Wn.2d 345, 884 P.2d 1326 (1994); 1000 Friends of Washington v. McFarland, 159 Wn.2d 165, 149 P.3d 616 (2006); Citizens' Alliance for Property Rights v. Sims, 187 P.3rd 786, 145 Wn. App. 649 (2008).
Note: This essay was updated on November 8, 2006, on December 22, 2006, on April 29, 2007, and on July 7, 2008.
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