The Washington Supreme Court recently removed one vehicle for developers to challenge requirements imposed under local governments’ shoreline regulations. In Citizens for Rational Shoreline Planning (CRSP) v. Whatcom County, the Court considered whether regulations in the County’s Shoreline Master Program (“SMP”) could be challenged under a provision of RCW 82.02.020 which generally prohibits any local government from “impos[ing] any tax, fee, or charge, either direct or indirect, on . . . the development, subdivision, classification, or reclassification of land,” subject to certain exceptions. Since its enactment, the meaning of this provision has been litigated many times and has been found to limit local governments’ land use regulations. For example, the Division I Court of Appeals relied on this statute in striking down portions of a King County ordinance that limited the amount of clearing an owner could do on a rural lot, finding that these restrictions were “an in kind indirect ‘tax, fee, or charge’ on development.” See Citizens Alliance for Property Rights (CAPR) v. King County.
Because this provision limits the actions of only local governments, the question in CRSP v. Whatcom County was whether the shoreline regulations at issue were best characterized as local government or state action. To decide this question, the Court analyzed the requirements of Washington’s Shoreline Management Act, which requires local governments to adopt SMPs subject to final approval by the State’s Department of Ecology (“Ecology”). The Court noted that the SMP process “is done in the shadow of Ecology’s control,” providing it with “stringent oversight authority and command over the final contents of any jurisdiction’s SMP”; and concluded that “Whatcom County’s SMP was not the product of local government, and therefore, is not subject to RCW 82.02.020.” Court thus held that the buffer zone and buildable area limits at issue in this case could not be challenged under RCW 82.02.020.
While CRSP v. Whatcom County removes one vehicle for developers to challenge regulations imposed under local governments’ SMPs, other bases for challenge—including constitutional takings theories—are still available.