No. 11-457
================================================================
In The
Supreme Court of the United States
---------------------------------♦--------------------------------KITSAP ALLIANCE OF PROPERTY OWNERS, ET AL.,
Petitioners,
v.
CENTRAL PUGET SOUND GROWTH
MANAGEMENT HEARINGS BOARD, ET AL.,
Respondents.
---------------------------------♦--------------------------------On Petition For Writ Of
Certiorari To The Court Of Appeals
Of The State Of Washington
---------------------------------♦--------------------------------BRIEF IN OPPOSITION
---------------------------------♦--------------------------------TIM TROHIMOVICH
LISA NICKEL*
FUTUREWISE
KITSAP COUNTY
PROSECUTING
814 Second Avenue,
ATTORNEY’S OFFICE
Suite 500
614 Division Street, MS-35A
Seattle, WA 98104
Port Orchard, WA 98366
Telephone: (206) 343-0681
Telephone: (360) 337-4974
E-mail: [email protected]
Facsimile: (360) 337-7083
ROBERT A. BEATTEY
E-mail:
SPENCER LAW FIRM, LLC
[email protected]
1326 Tacoma Ave. S.,
Counsel for Respondent
Suite 200
Kitsap County
Tacoma, WA 98402
Telephone: (206) 552-9001
* Counsel of Record
Facsimile: (253) 572-4207
E-mail:
[email protected]
Counsel for Respondents
Hood Canal Environmental
Council, People for Puget
Sound, West Sound
Conservation Council,
Kitsap Citizens for
Responsible Planning
and Futurewise
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
i
RESTATEMENT OF THE
QUESTION PRESENTED
The question presented to the Court by Petitioner Kitsap Alliance of Property Owners (KAPO) is
not based upon the actual facts in the case. KAPO
assumes that there has been a dedication, but there
has been no such thing. The challenged ordinance
protects critical areas, defined by state law, by regulating and limiting the impacts of nearby development. The details of this regulation are supported by
the best available science in the record before the
local government. However, no dedication is required,
public use of private property is never authorized,
and ownership and control remains with the property
owner. Given the true understanding of the challenged local ordinance, the proper question presented
should be:
Do the Nollan v. California Coastal Commission and
Dolan v. City of Tigard nexus and rough proportionality requirements apply when there is neither
a dedication to the public nor a permit condition
requiring any dedication?
ii
LIST OF ALL PARTIES
Kitsap Alliance of Property Owners was the petitioner before the Washington State Court of Appeals
and is the petitioner herein.
Kitsap County, Washington, is the municipal respondent.
Hood Canal Environmental Council, People for
Puget Sound, West Sound Conservation Council,
Kitsap Citizens for Responsible Planning and Futurewise were respondents before the Washington State
Court of Appeals and are the non-municipal respondents herein.
Judith and Irwin Krigsman and Jim Trainer
were respondents before the Washington State Court
of Appeals, but are not participating in this matter.
The Central Puget Sound Growth Management
Hearings Board was the non-participating agency respondent in the appeals below.
CORPORATE DISCLOSURE STATEMENT
Respondents Hood Canal Environmental Council,
Futurewise, People for Puget Sound, Kitsap Citizens
for Responsible Planning, and West Sound Conservation Council have no parent companies, subsidiaries,
or affiliates that are publicly owned corporations, and
there is no publicly held corporation that owns 10% of
any of their stock.
iii
TABLE OF CONTENTS
Page
Restatement of the Question Presented ..............
i
List of All Parties .................................................
ii
Corporate Disclosure Statement .........................
ii
Table of Contents .................................................
iii
Table of Authorities .............................................
v
Citations to Opinions Below ................................
1
Jurisdiction ..........................................................
1
Provisions at Issue ...............................................
2
Introduction .........................................................
2
Statement of the Case .........................................
4
A.
B.
The Washington Growth Management
Act ..............................................................
4
The Challenged Ordinance ........................
7
1. The 2005 Update .................................
7
2. What the buffers really are ................. 11
3. The Ordinance does not authorize
entry .................................................... 14
4. The Ordinance does not require a
dedication ............................................ 14
C.
The shoreline buffers in the challenged
Ordinance will be replaced by the end of
2012 ........................................................... 16
D.
The Washington State Court of Appeals
decision in KAPO v. CPSGMHB ................ 17
iv
TABLE OF CONTENTS – Continued
Page
Reasons for Denying the Petition ........................ 19
A.
There is no dedication, thus Nollan and
Dolan are inapplicable .............................. 19
B.
This case is not ripe for review ................. 25
C.
A decision by this Court would merely be
an advisory opinion ................................... 27
D.
The case will be moot ................................ 28
E.
The court of appeals decision below is
correct ........................................................ 29
Conclusion............................................................ 30
Appendix
Kitsap County Critical Areas Ordinance Excerpts ................................................................ App. 1
v
TABLE OF AUTHORITIES
Page
CASES
Arizonans for Official English v. Arizona, 520
U.S. 43 (1997) ..........................................................28
Callecod v. Wash. State Patrol, 84 Wash. App.
663, 929 P.2d 510 (1997) .........................................30
Chevron USA, Inc. v. Cayetano, 224 F.3d 1030
(9th Cir. 2000) .........................................................21
City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) .................................20
Clajon Prod. Corp. v. Petera, 70 F.3d 1566 (10th
Cir. 1995) .................................................................21
Dolan v. City of Tigard, 512 U.S. 374 (1994) ..... passim
Ferry County v. Concerned Friends of Ferry
County, 155 Wash. 2d 824, 123 P.3d 102
(2005) .........................................................................8
Herb v. Pitcairn, 324 U.S. 117 (1945) ........................27
Honesty in Envtl. Analysis & Legislation v.
Cent. Puget Sound Growth Mgmt. Hearings
Bd. (HEAL), 96 Wash. App. 522, 979 P.2d 864
(1999) .....................................................................6, 7
King County v. Cent. Puget Sound Growth
Mgmt. Hearings Bd., 142 Wash. 2d 543, 14
P.3d 133 (2000) ..................................................29, 30
Kitsap Alliance of Prop. Owners v. Cent. Puget
Sound Growth Mgmt. Hearings Bd., 160 Wash.
App. 250, 255 P.3d 696 (2011) (KAPO II) ....... passim
vi
TABLE OF AUTHORITIES – Continued
Page
Kitsap Alliance of Prop. Owners v. Cent. Puget
Sound Growth Mgmt. Hearings Bd., 152 Wash.
App. 190, 217 P.3d 365 (2009) (KAPO I) ................17
Lewis v. Continental Bank Corp., 494 U.S. 472
(1990) .......................................................................28
Lingle v. Chevron USA, Inc., 544 U.S. 528
(2005) ..................................................... 19, 20, 21, 26
Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982) .................................................20
Lucas v. South Carolina Coastal Council, 505
U.S. 1003 (1992) ......................................................20
Media General Cable of Fairfax, Inc. v. Sequoyah Condominium Council of Co-Owners, 991
F.2d 1169 (4th Cir. 1993).........................................21
Nollan v. California Coastal Comm’n, 483 U.S.
825 (1987) ........................................................ passim
Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ........26
Penn Central Transportation Co. v. New York
City, 438 U.S. 104 (1978) ............................ 20, 24, 25
Philip Morris, Inc. v. Reilly, 312 F.3d 24 (1st
Cir. 2002) .................................................................21
Richardson v. Cox, 108 Wash. App. 881, 26 P.3d
970 (2001) ................................................................22
United Parcel Service, Inc. v. Mitchell, 451 U.S.
56 (1981) ..................................................................24
vii
TABLE OF AUTHORITIES – Continued
Page
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V .................................................25
U.S. Const. art. III ......................................................28
STATUTES
Wash. Rev. Code § 36.70A.010 .....................................4
Wash. Rev. Code § 36.70A.020 .....................................5
Wash. Rev. Code § 36.70A.030 .....................................5
Wash. Rev. Code § 36.70A.050 .....................................6
Wash. Rev. Code § 36.70A.060 .................................4, 5
Wash. Rev. Code § 36.70A.130 .....................................7
Wash. Rev. Code § 36.70A.170 .....................................4
Wash. Rev. Code § 36.70A.172 .................................5, 6
Wash. Rev. Code § 36.70A.480 ......................... 5, 16, 29
Wash. Rev. Code § 82.02.020 ......................................18
Wash. Rev. Code § 90.58.080 ......................................16
Wash. Rev. Code § 90.58.610 ................................16, 29
Kitsap County, Wash. Code § 19.100.125 ........ 3, 13, 14
Kitsap County, Wash. Code § 19.100.130 ............13, 14
Kitsap County, Wash. Code § 19.100.135 ..............3, 12
Kitsap County, Wash. Code § 19.100.140 ..............3, 13
Kitsap County, Wash. Code § 19.100.150 ..................15
Kitsap County, Wash. Code § 19.100.165 ..................14
viii
TABLE OF AUTHORITIES – Continued
Page
Kitsap County, Wash. Code § 19.150.170 .................. 11
Kitsap County, Wash. Code § 19.150.172 ..................12
Kitsap County, Wash. Code § 19.300.305 ..................13
Kitsap County, Wash. Code § 19.300.310 ....................9
Kitsap County, Wash. Code
§ 19.300.315....................................... 9, 10, 12, 13, 23
Kitsap County, Wash. Code § 19.800 .........................15
OTHER AUTHORITIES
Black’s Law Dictionary, 285 (6th ed. 1991) ...............22
Hood Canal v. Kitsap County, Cent. Puget
Sound Growth Mgmt. Hearings Bd. No. 06-30012c, Final Decision and Order (August 28,
2006) ................................................................ passim
REGULATIONS
Wash. Admin. Code § 222-16-030 .................................9
Wash. Admin. Code § 365-190 ......................................6
Wash. Admin. Code § 365-190-080 (2005) ...................8
Wash. Admin. Code § 365-190-130 (2010) ...................8
Wash. Admin. Code § 365-195 ......................................6
Wash. Admin. Code § 365-195-900 ...............................6
Wash. Admin. Code § 365-196 ......................................6
1
CITATIONS TO OPINIONS BELOW
Hood Canal Environmental Council et al. (Hood
Canal) v. Kitsap County, CPSGMHB Case No. 06-30012c, Final Decision and Order (August 28, 2006).
Hood Canal v. Kitsap County, CSPGMHB Case
No. 06-3-0012c, Order on Compliance (April 30, 2007).
Kitsap Alliance of Property Owners (KAPO) v.
Central Puget Sound Growth Management Hearings
Board (CPSGMHB), Kitsap County Superior Court
Cause No. 06-2-02271-0 and 07-2-01310-7, Memorandum Opinion and Order (2008).
KAPO v. CPSGMHB, 152 Wash. App. 190, 217
P.3d 365 (2009) (KAPO I) (review granted and remanded, 168 Wash. 2d 1031, 231 P.3d 166).
KAPO v. CPSGMHB, 160 Wash. App. 250, 255
P.3d 696 (2011) (KAPO II) (review denied, 171
Wash. 2d 1030, 257 P.3d 662).
---------------------------------♦---------------------------------
JURISDICTION
This Respondents’ Brief in Opposition to Petitioner Kitsap Alliance of Property Owners’ Petition
for Writ of Certiorari is being filed on February 22,
2012 as authorized by Court order of January 13,
2012.
---------------------------------♦---------------------------------
2
PROVISIONS AT ISSUE
KAPO challenges limited provisions of Kitsap
County’s Critical Areas Ordinance (Ordinance). In
addition to sections of that Ordinance set forth in
Petitioners Appendix D-1, additional relevant sections are reproduced in Respondents’ Appendix (Resp.
App.).
---------------------------------♦---------------------------------
INTRODUCTION
Contrary to the Petitioner KAPO’s assertion, this
case does not involve a dedication of private land to
public use. Rather, it involves the regulation of activities within and adjacent to environmentally critical
areas identified by state law. Specifically, the challenged Ordinance regulates certain activities within
specified buffers by requiring review and approval
from county officials before development activities are
undertaken. Neither the challenged Ordinance, nor the
state law under which the Ordinance was adopted,
requires or effectuates any dedication of land.
KAPO inaccurately describes the Ordinance as a
law that “force[s] private property owners to dedicate
large tracts of private land to public use as environmental conservation buffers. . . .” Petition at 2. The
description is irreconcilable with a fair reading of
the Ordinance. The Ordinance requires no change in
title to land as a condition of development or for any
other reason. The land remains private property of
the owner in fee simple absolute, controlled by the
3
property owner and freely alienable by the property
owner.
The challenged Ordinance also provides six paragraphs of exemptions available to an affected landowner, Resp. App. at 1-2 (Kitsap County, Wash. Code
§ 19.100.125), and allows for a variance in the application of the regulations and standards of the Ordinance and a variance to the use prohibitions of the
Ordinance. Resp. App. at 4 (Kitsap County, Wash.
Code § 19.100.135). Beyond these, there is also a
“reasonable use exception,” which allows development
within the buffer if the buffer would otherwise deny
all reasonable use of the property. Resp. App. at 6-7
(Kitsap County, Wash. Code § 19.100.140). None of
these options have been explored in this case because
there has been no development proposed and no permit application submitted.
Because there has been no dedication of land, no
proposed development or permit condition imposed,
no opportunity to apply exemptions or obtain a variance or exception, and because the Ordinance provides a flexible permit process, the federal takings
analysis of Nollan and Dolan is not applicable. The
issues raised by the petitioner are not ripe for review,
and would result in an advisory opinion. KAPO’s
Petition should be denied.
---------------------------------♦---------------------------------
4
STATEMENT OF THE CASE
The Petitioner has misstated the factual basis of
its federal takings claim and the effects of the challenged Ordinance.
A. The Washington Growth Management Act.
Kitsap County’s Critical Areas Ordinance was
adopted through Ordinances 351-2005 and 376-2007,
as required by the Washington State Growth Management Act (GMA), Ch. 36.70A of the Revised Code
of Washington. The GMA, in part, requires all counties and cities in the state to designate and protect
“critical areas.” Wash. Rev. Code § 36.70A.170(1)(d),
§ 36.70A.060(2).
In 1990, the Washington State Legislature that
adopted GMA found:
uncoordinated and unplanned growth, together with a lack of common goals expressing
the public’s interest in the conservation and
the wise use of our lands, pose a threat to the
environment, sustainable economic development, and the health, safety, and high quality
of life enjoyed by residents of this state. It is
in the public interest that citizens, communities, local governments, and the private
sector cooperate and coordinate with one
another in comprehensive land use planning.
Wash. Rev. Code § 36.70A.010. The GMA directs
local governments to carry out this coordinated planning, providing them with substantial discretion, but
5
specifying fourteen goals that are to guide their
planning.1 In addition, the GMA sets out specific
directives that must be accomplished by counties and
cities. One of these directives, as mentioned above, is
to designate critical areas and protect their functions
and values.
Five types of “critical areas” are defined in GMA:
“(a) Wetlands; (b) areas with a critical recharging
effect on aquifers used for potable water; (c) fish and
wildlife habitat conservation areas; (d) frequently
flooded areas; and (e) geologically hazardous areas.”
Wash. Rev. Code § 36.70A.030(5). Counties and cities
are required to adopt development regulations as a
means to protect the “functions and values” of these
critical areas. Wash. Rev. Code § 36.70A.060(2),
§ 36.70A.172. For some critical areas, such as wetlands, fish and wildlife habitat conservation areas,
and critical aquifer recharge areas, development
regulations are intended to protect the critical area
from development activities that could either damage
the ecological functions of the critical area itself or
1
GMA’s goals are: encouraging urban growth in urban
growth areas, reducing sprawl, encouraging multimodal transportation, providing affordable housing, fostering economic development, protecting property rights, processing permits timely,
enhancing natural-resource based industries, promoting open
space and recreation and conserving fish and wildlife habitat,
protecting the environment, encouraging citizen involvement,
ensuring adequate public services, preserving places of historical preservation, and fostering the appropriate management
and use of the shoreline. Wash. Rev. Code § 36.70A.020,
§ 36.70A.480(1).
6
damage the functions that meet human needs (such
as potable water provided by aquifers). For other
critical areas, such as frequently flooded areas and
geologically hazardous areas, development regulations are intended to protect human life and property.
In designating and developing regulations to protect critical areas, local governments “shall include
the best available science in developing policies
and development regulations to protect the functions
and values of critical areas.” Wash. Rev. Code
§ 36.70A.172. As directed by statute, detailed administrative regulations were adopted to assist local
governments’ implementation of the statutory requirements. Wash. Rev. Code § 36.70A.050; see, e.g.,
Wash. Admin. Code § 365-190, § 365-195 and § 365196. Criteria for identifying and including the best
available science are provided in Wash. Admin. Code
§§ 365-195-900 – 365-195-925.
Washington courts have explained that the purpose of the best available science requirement is to
ensure that regulations are based on relevant evidence, not on “speculation and surmise.” Honesty in
Envtl. Analysis & Legislation v. Cent. Puget Sound
Growth Mgmt. Hearings Bd. (HEAL), 96 Wash. App.
522, 531-32, 979 P.2d 864, 870-71 (1999) (citing Bennett v. Spear, 520 U.S. 154 (1997) for the analogous
rationale behind the best available science requirement of the federal Endangered Species Act, which
the court then used to interpret the GMA best available science requirement). The Court of Appeals in
HEAL further explained the special significance of
7
scientific information in the designation and protection of critical areas:
While the balancing of the many factors and
goals could mean the scientific evidence does
not play a major role in the final policy in
some GMA contexts, it is hard to imagine in
the context of critical areas. The policies at
issue here deal with critical areas, which are
deemed “critical” because they may be more
susceptible to damage from development.
The nature and extent of this susceptibility
is a uniquely scientific inquiry. It is one in
which the best available science is essential
to an accurate decision about what policies
and regulations are necessary to mitigate
and will in fact mitigate the environmental
effects of new development.
Id. at 532-33.
B. The Challenged Ordinance.
1. The 2005 Update.
Kitsap County is required by GMA to periodically
update its Critical Areas Ordinance. Wash. Rev. Code
§ 36.70A.130(4). Updates are lengthy and resourceintensive undertakings. Kitsap County’s update took
two years to accomplish and represents a careful
balance of the fourteen GMA goals as well as the
substantive inclusion of best available science for the
protection of critical areas from the impacts of development.
8
The first step in the update was a review of the
existing critical area designations and the science
relating to the protection of their functions and values.
With regard to fish and wildlife habitat conservation
areas, a designation that applies to the County’s Hood
Canal and Puget Sound shorelines, Washington state
regulations recommend that all shellfish, kelp and
eelgrass beds, and all forage fish spawning areas be
designated. Wash. Admin. Code § 365-190-130 (2010)
(formerly, § 365-190-080 (2005)). The Washington
State Supreme Court has also held that the areas
where species identified as endangered, threatened or
sensitive under the Washington State and federal
endangered species acts must be designated and
protected. Ferry County v. Concerned Friends of Ferry
County, 155 Wash. 2d 824, 832, 123 P.3d 102, 106
(2005). Kitsap County’s marine shorelines contain
numerous locations of shellfish, kelp and eelgrass
beds, and forage fish spawning areas, and are home
to both the threatened Hood Canal Summer Chum
salmon (along its entire western shoreline) and the
threatened Puget Sound Chinook salmon (along its
entire eastern shoreline). See Hood Canal v. Kitsap
County, CPSGMHB 06-3-0012c, Final Decision and
Order (August 28, 2006) at 29-31. Kitsap County thus
retained the fish and wildlife habitat conservation
area designation for its marine shorelines that existed
since its 1998 Critical Areas Ordinance.2 Puget Sound,
2
This designation was upheld as compliant with GMA by
the fact-finder below and not further challenged. Hood Canal,
CPSGMHB 06-3-0012c, Final Decision and Order at 20-31.
9
including Hood Canal, has also been listed as an
impaired water by the United States Environmental
Protection Agency under Section 303(d) of the Clean
Water Act.3
Within the shoreline category, land was further
grouped into four subcategories based on the existing
character of the area and the type of development:
urban, semi-rural and rural, conservancy and natural. Resp. App. at 13 (Kitsap County, Wash. Code
§ Table 19.300.315). Only the buffer regulations for
urban, semi-rural and rural were challenged below.
The natural and conservancy designations and their
buffer regulations have never been in dispute.
In addition to shorelines, the County’s fish and
wildlife habitat conservation area designation also
includes two other areas: streams and wildlife habitat conservation areas. Like marine shorelines,
streams are broken down into four types: S, F, Np
and Ns, and each have its own standard buffer.4
3
United States Environmental Protection Agency Washington Impaired Waters and TMDL Information accessed on Feb. 14,
2012 at: http://iaspub.epa.gov/tmdl_waters10/attains_state.control?
p_state=WA&p_cycle=&p_report_type=T.
4
S-streams are those classified as shorelines of the state
and are salmon-bearing; F-streams are those that are fishbearing; Np-streams are those that do not bear fish, but exist
year-round; and Ns-streams are those that do not bear fish and
are only seasonal. Resp. App. at 9 (KCC § 19.300.310(B)(1)
(citing Wash. Admin. Code § 222-16-030). Lakes less than 20
acres are included in this categorization. Lakes greater than 20
acres use the marine shoreline categories. Resp. App. at 10
(KCC 19.300.310(B)(2)).
10
Resp. App. at 12-13 (Kitsap County, Wash. Code
§ Table 19.300.315). Wildlife habitat conservation
areas are also broken down into Class I and Class II
categories and have buffers based on Habitat Management Plans. Resp. App. at 14 (Kitsap County,
Wash. Code § Table 19.300.315). Critical area designations also often overlap, resulting in dual designations. For example, high-bank marine shorelines are
often both a fish and wildlife habitat conservation
area and a geologically hazardous area, and wetlands on the shoreline are categorized as both wetland critical areas and a fish and wildlife habitat
conservation area.
Having established the critical area designations,
Kitsap County then examined best available science
to determine the measures needed to protect those
critical areas. Kitsap County retained the use of buffers as the protection mechanism for wetlands, fish
and wildlife habitat conservation areas, and geologically hazardous areas because, according to best
available science and the fact-finder below, they are
recognized as being one of the most effective ways to
protect critical areas from the impacts of development. See, e.g., Hood Canal, CPSGMHB 06-3-0012c,
Final Decision and Order at 43 (“marine shoreline
buffers [are] a key protection measure”). The starting
width for each required buffer was then based on what
the applicable best available science for the location
found to be necessary to address the proven impacts
of development on the particular type of critical area
11
present. For example, the clearing of property and
the construction of impervious surfaces at the shoreline directly results in increased stormwater runoff,
which in turn increases erosion and the transport of
sediment and pollutants to the shoreline and into
Puget Sound. The removal of vegetation next to the
shoreline also reduces the amount of shade the
shoreline receives and limits the amount of habitat
protection and “litter fall” that serves as food for fish
including the threatened salmon species. Hood
Canal, CPSGMHB 06-3-0012c, Final Decision and
Order at 43, fn.53 (citing Best Available Science).
The buffer widths adopted by Kitsap County were
thus based upon what scientific studies showed was
reasonably necessary to reduce the impacts from
adjacent development.
2. What the buffers really are.
The Ordinance defines buffers as “non-clearing
native vegetation area[s] which [are] intended to protect the functions and values of critical areas.” Resp.
App. at 8 (Kitsap County, Wash. Code § 19.150.170).
These buffers function like setbacks in zoning regulations; they are areas in which building cannot occur
without a variance or other authorization. They do
not prevent all use, they do not authorize entry by
others, and they do not allow public use of private
property.
As noted above, each subcategory has its own
“standard buffer.” For example, for urban shorelines,
12
the standard buffer is 50 feet. Resp. App. at 13
(Kitsap County, Wash. Code § Table 19.300.315). For
rural and semi-rural shorelines, the standard buffer
is 100 feet. Id. A standard buffer is defined as “the
buffer width established by each chapter of [the
Ordinance] before any buffer adjustments are applied.” Resp. App. at 8 (Kitsap County, Wash. Code
§ 19.150.172). As the definition confirms, the standard buffers are merely the starting point. From there,
the relevant details of the particular development
proposal are examined to determine any necessary or
allowable adjustments.
Accordingly, buffer widths are not inflexible or
generic requirements established in a vacuum or
without regard to the development or the property.
As the fact-finder below found, “Contrary to KAPO’s
assertions, there is site-specific flexibility, through
buffer averaging, habitat conservation plans, off-site
mitigation options, variances, and reasonable use
provisions.” Hood Canal, CPSGMHB 06-3-0012c,
Final Decision and Order at 35. The variance process
allows buffer reductions based on the special circumstances of the property and the proposed development. Resp. App. at 4-6 (Kitsap County, Wash. Code
§ 19.100.135). The administrative reduction process
allows buffer reductions if a site specific study shows
that mitigation will prevent the development’s harm
to the critical area. Resp. App. at 15-16 (Kitsap County, Wash. Code § 19.300.315(A)(4)). Flexibility is also
provided by virtue of the development being preexisting and by being otherwise exempt from the
13
requirements. Resp. App. at 1-4 (Kitsap County,
Wash. Code § 19.100.130, § 19.100.125). Finally, the
reasonable use exception allows development if the
buffer would otherwise deny all reasonable use of the
property, and was specifically adopted to address
property rights. Resp. App. at 6-7 (Kitsap County,
Wash. Code § 19.100.140).
Buffers are also not restoration programs. As
stated in the Ordinance, they are “protection measures . . . designed to achieve no net loss of fish and
wildlife species and habitats due to new development
or regulated activities.” Resp. App. at 8 (Kitsap County, Wash. Code § 19.300.305). This was confirmed by
fact-finder below, which wrote, “[a]s to KAPO’s claim
that the CAO imposes a ‘restoration agenda’ . . . the
Board reads Kitsap County, Wash. Code Title 19 to be
a protection and preservation ordinance.” Hood
Canal, CPSGMHB Case No. 06-3-0012c, Final Decision and Order at 51.
Finally, buffers are not “off limits” to the property
owner. Property owners are able to use them. For
example, water-dependent activities are allowed in
the buffer zone if a site-specific study shows how the
development can occur without damaging the critical
area. Resp. App. at 18 (Kitsap County, Wash. Code
§ 19.300.315(A)(10)). Likewise, trails and trail-related
facilities are allowed within buffers, as are utilities,
bank stabilization measures (such as bulkheads or
retaining walls), and roads. Resp. App. at 23-29
(Kitsap County, Wash. Code § 19.300.315(I), (J), (K),
and (N)). Existing agricultural activities may also
14
continue. Resp. App. at 2-4 (Kitsap County, Wash.
Code § 19.100.125(B)). Dangerous trees may be
removed and forestry activities consistent with state
law may take place within the buffer. Resp. App. at 2
(Kitsap County, Wash. Code § 19.100.130(C) and
Kitsap County, Wash. Code § 19.100.125(F)). Finally,
any existing development, including buildings, appurtenances, lawns, gardens, stormwater facilities, etc.,
is allowed to remain and allowed to be maintained
and repaired. Resp. App. at 1-3 (Kitsap County, Wash.
Code § 19.100.125(C), (D), and (E); Kitsap County,
Wash. Code § 19.100.130).
3. The Ordinance does not authorize entry.
The Ordinance does not allow the County carte
blanche access to private property. The County is only
allowed to access property with the express permission of the property owner. “If entry is refused, the
[County] shall have recourse to the remedies provided
by law to secure entry.” Pet. App. at D-4-5 (Kitsap
County, Wash. Code § 19.100.165(B)). In other words,
a warrant or appropriate judicial order is required.
Similarly, nowhere does the Ordinance grant members of the public access to private land.
4. The Ordinance does not require a
dedication.
The buffers are not dedicated lands exacted at
the price of a permit. KAPO asserts that a dedication
is effected through the required Notice to Title under
15
Kitsap County, Wash. Code § 19.100.150. While the
Ordinance can require a Notice to Title to be publically
recorded as a condition of development approval, the
Notice to Title contains no dedication language. The
Notice in question does nothing more than alert the
public that a critical area and/or a buffer are physically located on the property. The Notice to Title form
contained in the Ordinance states:
The subject property contains a critical area
and/or its required buffer as defined by Title
19 Kitsap County Critical Areas Ordinance.
The property was the subject of a development proposal for. . . . Restrictions on use or
alteration of the critical area and/or its buffer may exist due to natural conditions of the
property and resulting regulations. Review of
such application has provided information on
the location of the critical area and/or its
buffer and restrictions on their use through
setback areas. A copy of the plan showing
such setback areas is included in the abovereferenced permit file. Any alterations to the
critical area and/or its buffer will be subject
to further review for compliance with the
Kitsap County Critical Areas Ordinance.
Resp. App. at 29-30 (Kitsap County, Wash. Code
§ 19.800 Appendix E).
In sum, the Ordinance is a regulatory mechanism
that establishes flexible limitations on proposed
development adjacent to areas expressly identified
for protection due to their sensitivity to the impacts resulting from such development. The County
16
established buffers around these areas based on the
harm scientifically proven to occur. These buffers are
the starting point for County staff called upon to evaluate a plan when a particular development proposal
is submitted, but there are numerous adjustments
that can be made based on the particulars of the development and the harm to the specific critical area.
Buffer areas remain owned by the property owner,
controlled by the property owner, and freely alienable
with the rest of the property. No one is allowed to
enter without the express permission of the owner
(or court order), and no dedication or easement is
granted to the County or the public.
C. The shoreline buffers in the challenged
Ordinance will be replaced by the end of
2012.
By the end of 2012, the challenged Ordinance
will no longer contain the buffer regulations KAPO
opposes. In accordance with the Washington Shoreline Management Act, Ch. 90.58 of the Revised Code
of Washington, the County is currently updating its
Shoreline Management Master Program. The deadline
for this update is December 2, 2012. Wash. Rev. Code
§ 90.58.080(2)(a)(iii), (6) and (8). Once updated, the
Program will regulate all shoreline fish and wildlife
habitat conservation areas at issue in this case. Wash.
Rev. Code § 90.58.610, § 36.70A.480(3)(d). The challenged Ordinance will have been superseded in these
areas and the buffers will no longer apply.
17
D. The Washington State Court of Appeals
decision in KAPO v. CPSGMHB.
The Washington State Court of Appeals decision
below dealt largely, but not entirely, with questions of
Washington State law and affirmed the Growth Management Hearings Board decision, which upheld the
challenged Ordinance. Kitsap Alliance of Prop. Owners v. Cent. Puget Sound Growth Mgmt. Hearings Bd.,
160 Wash. App. 250, 255-56, 255 P.3d 696, 699 (2011)
(KAPO II) (review denied, 171 Wash. 2d 1030, 257
P.3d 662).5
The first part of the Court of Appeals decision
addressed a procedural issue involving a 2010 amendment to the Growth Management Act adopted after
its 2009 decision in this case, Kitsap Alliance of Prop.
Owners v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 152 Wash. App. 190, 217 P.3d 365 (2009)
(KAPO I). The amendment clarified that GMA-based
regulations, such as the challenged Ordinance here,
continued to apply to critical areas on the shoreline,
including fish and wildlife habitat conservation areas,
until local governments updated their Shoreline Master Programs pursuant to the Shoreline Management
Act, Ch. 90.58 of the Revised Code of Washington.
After such update, only the Shoreline Master Programs would apply. The Court of Appeals found this
5
While the Washington State Supreme Court did not take
review of the Court of Appeals decision in KAPO II, that court
has recently citied part of its analysis with approval in Lauer v.
Pierce County, 173 Wash. 2d 242, 267 P.3d 988, 995 fn.3 (2011).
18
amendment was properly retroactive to 2003 under
Washington law, and thus applicable to the case.
KAPO II, 160 Wash. App. at 264, 255 P.3d at 703. This
application warranted reversal of the 2009 decision
and warranted a decision on the substance of KAPO’s
appeal, which had previously been unnecessary. Id.
KAPO’s main challenge before the Court of
Appeals was that the marine shoreline buffers did not
satisfy GMA’s best available science requirements.
Under Washington state’s substantial evidence test,
the Court of Appeals concluded that Kitsap County
“appropriately considered the best available science
and linked its buffer widths to the functions and
values of critical fish and wildlife conservation areas”
under the GMA. KAPO II, 160 Wash. App. at 268-69,
255 P.3d at 705-06. The court also found, “[c]ontrary
to KAPO’s contentions, the Board record contains
scientific information confirming that buffers along
freshwater and marine shoreline areas serve similar
functions related to protection of critical areas. These
functions include preventing pollution and sediments
from entering the waters, stabilizing slopes, providing shade to regulate microclimates, and providing
nesting sites and prey for fish and other wildlife.”
KAPO II, 160 Wash. App. at 269, 255 P.3d at 706. The
challenged Ordinance thus complied with state law.
Before the Court of Appeals, KAPO also raised
takings claims. The first was through a state law that
limited local government land use regulations, fees
and taxes. Wash. Rev. Code § 82.02.020. Under Washington State’s Administrative Procedure Act, however,
19
the Court of Appeals determined that KAPO had not
adequately raised the issue. KAPO II, 160 Wash. App.
at 271-72, 255 P.3d at 707. On the second claim, the
Court of Appeals found that KAPO had raised a “due
process argument that the critical areas regulations
must be reasonably necessary to achieve a legitimate
government objective and must satisfy the requirements of nexus and rough proportionality established
in Dolan [v. City of Tigard], 512 U.S. 374, 114 S.Ct.
2309 and Nollan v. California Coastal Commission,
483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987).”
KAPO II, 160 Wash. App. at 272, 255 P.3d at 707-08.
However, the Court of Appeals rejected those arguments writing that “the County considered the best
available science and employed a reasoned process in
adopting its shoreline critical areas ordinance, including the buffers for urban, semirural, and rural shorelines. The superior court’s conclusion that the County
accordingly did not engage in an unconstitutional
taking and satisfied the nexus and rough proportionality tests is affirmed.” KAPO II, 160 Wash. App. at
274, 255 P.3d at 708.
---------------------------------♦---------------------------------
REASONS FOR DENYING THE PETITION
A. There is no dedication, thus Nollan and
Dolan are inapplicable.
As discussed by this Court in Lingle v. Chevron
USA, Inc., 544 U.S. 528 (2005), private property
has been protected from takings under the Fifth
20
Amendment of the U.S. Constitution when there has
been a physical invasion of property, as in Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419
(1982); when a regulation eliminates all economically
viable use of the property, as in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); when a
regulation has gone too far, as in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978);
and when a development permit demands an exaction
that fails the nexus and rough proportionality tests of
Nollan v. California Coastal Comm’n, 483 U.S. 825
(1987), and Dolan v. City of Tigard, 512 U.S. 374
(1994). Although multiple tests may be used to determine whether a taking has occurred, each analysis
has its own specialized place in federal takings jurisprudence. For example, as recognized by this Court in
City of Monterey v. Del Monte Dunes, “we have not
extended the rough-proportionality test of Dolan
beyond the special context of exactions – land-use
decisions conditioning approval of development on the
dedication of property to public use.” City of Monterey
v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687,
702 (1999).
In Del Monte Dunes, the Court thus determined
that the Nollan and Dolan tests only apply when
conditions are imposed on a permit for a proposed
development. Lingle confirmed this limitation that
the examination of nexus and rough proportionality
only apply in rare and “special” circumstances, and
further stated, “Nollan and Dolan both involved
dedications of property so onerous that, outside the
21
exactions context, they would be deemed per se physical takings.” Lingle, 544 U.S. at 547. The federal
Courts of Appeal have been consistent in their limited
application of Nollan/Dolan.6
The petition does not raise an issue that even
rises to the level of Del Monte Dunes. Not only is
there no condition of permit approval, but there is no
development proposal and no condition that requires
a dedication. Furthermore, the Ordinance itself does
not demand a dedication. Accordingly, the federal
jurisprudence of Nollan and Dolan do not apply to
this case.
The petition also does not raise a significant
question about the scope of Nollan/Dolan analysis
because there is not a significant dispute in the lower
courts regarding the meaning of the term “dedication.” In land use and property law, “dedication” is a
term of art that has a clear, concrete and legally
significant meaning. Media General Cable of Fairfax,
Inc. v. Sequoyah Condominium Council of Co-Owners,
991 F.2d 1169, 1173 (4th Cir. 1993). The Media
6
The Tenth Circuit Court of Appeals, for instance, concluded, “Nollan and Dolan are best understood as extending the
analysis of complete physical occupation cases to those situations in which the government achieves the same end (i.e., the
possession of one’s physical property) through a conditional
permitting procedure.” Clajon Prod. Corp. v. Petera, 70 F.3d
1566, 1578 (10th Cir. 1995). The Ninth and First Circuits also
have recognized this limitation. Chevron USA, Inc. v. Cayetano,
224 F.3d 1030, 1041, 1044 (9th Cir. 2000); Philip Morris, Inc. v.
Reilly, 312 F.3d 24, 46 fn.20 (1st Cir. 2002).
22
General Cable opinion cited with approval to the
definition of dedication in Black’s Law Dictionary,
which defines “dedication” as:
The appropriation of land, or an easement
therein, by the owner, for the use of the public, and accepted for such use by or on behalf
of the public. . . . A deliberate appropriation
of land by its owner for any general and public uses, reserving to himself no other rights
than such as are compatible with the full exercise and enjoyment of the public uses to
which the property has been devoted.
Black’s Law Dictionary, 285 (6th ed. 1991). This definition is consistent both in federal case law, including the seminal cases of Nollan and Dolan, and in
Washington, including the very case cited by KAPO.
Richardson v. Cox, 108 Wash. App. 881, 890-91, 26
P.3d 970, 975-76 (2001) (“A common law dedication is
the designation of land, or an easement on such
land, by the owner, for the use of the public, which
has been accepted for use by or on behalf of the
public . . . By dedicating the property, the owner
reserves no rights that would either be incompatible
or interfere with the full public use. . . .”) In Nollan,
an administrative agency sought to require landowners to dedicate an easement over part of their
property as a condition of granting a building permit. Nollan, 483 U.S. at 827-28. In Dolan, a local
government sought to condition a building permit
on the dedication of land for public flood control
and traffic improvements. Dolan, 512 U.S. at 377.
23
Accordingly, for a buffer to be a dedication, an interest in land must be transferred or conveyed.
As the plain language of the challenged Ordinance reveals, there is no requirement that land be
7
dedicated to the public. No language in the Ordinance conveys land or requires conveyance. While the
Notice to Title KAPO mentions is recorded, it does
not contain express or implied conveyance language,
and thus would be insufficient to dedicate land, or
convey an easement or other interest in land. Significantly, any required buffer is still owned by the
property owner, and that property owner retains the
right to exclude others, retains the right to sell the
land to anyone, and can use the property for all authorized uses. All the County has done in this case is
identify areas that have critical functions and require
that landowners proposing to develop those areas
seek a permit. Furthermore, there is considerable
site-specific flexibility built into the Ordinance, including exemptions, buffer averaging, habitat conservation plans, off-site mitigation options, variances,
and the failsafe reasonable use provisions.
7
There is one limited exception applicable only to new
subdivisions, which requires buffers to be dedicated as open
space tracts, an easement for open space, or a covenant. Resp.
App. at 21 (KCC § 19.300.315(G)(2)). However, any conveyance
in that Ordinance is not to the County for public use, but to the
associated homeowners association, which, by other regulations,
is required to own all common space.
24
Undeterred by the actual language and nature of
the Ordinance, KAPO nevertheless insists that the
Ordinance exacts a dedication as a condition of development and claims this presents a violation of
Nollan’s and Dolan’s individualized determination
requirement. But because there is no dedication,
there is no place for an individualized determination.
And, in fact, because there is no proposed development, an individualized determination is impossible.
For these reasons, this case does not present a significant question about whether the Ordinance violates
the Fifth Amendment protections of the U.S. Constitution as established by Nollan and Dolan.
KAPO and amicus reference the Court’s Penn
Central factors analysis in passing, even though
KAPO did not argue the applicability of Penn Central
below.8 KAPO II, 160 Wash. App. at 270-74, 255 P.3d
at 706-08; Penn Central, 438 U.S. at 124-28. This
Court should not consider an argument raised for the
first time now before the United States Supreme
Court. Further, even if the Penn Central balancing
test was applied, because this is a facial challenge,
8
The Amicus Curiae brief of the Center for Constitutional
Jurisprudence asks this Court to overrule or limit the test of
Penn Central arguing that lower courts have taken it too far.
That request is misplaced in this case. Amicus briefs are for the
purpose of supplementing the issues proposed by the Petition,
not to create new ones. United Parcel Service, Inc. v. Mitchell,
451 U.S. 56, 61 fn.2 (1981). The Amicus Curiae brief of Center
for Constitutional Jurisprudence does not support the granting
of the Petition and should be disregarded.
25
the Ordinance would easily survive that analysis. The
Ordinance is for the purpose of preventing harm to a
public resource recognized by Washington State as of
state-wide importance, it affects only those who develop near that resource, and it is based on independent studies that indicate it is the minimum necessary
to effect that protection. Additionally, the Ordinance
does not prevent all use, and for the uses it does limit,
there are a multitude of opportunities to reduce or
eliminate that burden. It cannot be said that this
Ordinance will always be a takings under the Penn
Central factors analysis.
The Court should not accept KAPO’s invitation to
expand Nollan/Dolan into a means of challenging
legislative land-use policy decisions of Washington
state and Kitsap County with which KAPO disagrees.
In this case, there has been no development proposal,
no development application, and no exaction or
dedication by the state as a condition of development.
The Petition should be denied.
B. This case is not ripe for review.
The Court has explained that a Fifth Amendment
challenge to land-use regulations is ripe only under
certain circumstances:
[A] takings claim challenging the application
of land-use regulations is not ripe unless
“the government entity charged with implementing the regulations has reached a final
decision regarding the application of the
26
regulations to the property at issue.” A final
decision by the responsible state agency informs the constitutional determination whether a regulation has deprived a landowner of
“all economically beneficial use” of the property, or defeated the reasonable investmentbacked expectations of the landowner to the
extent that a taking has occurred. These
matters cannot be resolved in definitive terms
until a court knows “the extent of permitted
development” on the land in question.
Palazzolo v. Rhode Island, 533 U.S. 606, 618 (2001)
(internal citations omitted).
Those circumstances are not present in this case.
Because the Nollan and Dolan analysis can only
apply to conditions attached to development permits,
a development permit necessarily must be involved.
As this Court repeated in Lingle, the Nollan and
Dolan analysis “involve[s] a special application of the
doctrine of unconstitutional conditions,” . . . required
“in exchange for a discretionary benefit conferred by
the government” such as a permit. Lingle, 544 U.S.
at 547 (internal quotations omitted). So without a
permit and a condition, a takings claim invoking
Nollan and Dolan is not ripe. There is neither here.
No party to this case has even applied for a development permit, much less had any condition imposed as
a result. Accordingly, KAPO’s claim is not ripe for
review and should be rejected.
27
C. A decision by this Court would merely be
an advisory opinion.
KAPO and amicus argue that the Court of
Appeals applied Nollan and Dolan incorrectly and
relied on best available science. However, even if the
Court of Appeals’ application was wrong, a decision
of this Court would be merely advisory and would not
change the ultimate decision which upheld the Ordinance.
This Court has long held:
Our only power over state judgments is to
correct them to the extent that they incorrectly adjudge federal rights. And our power
is to correct wrong judgments, not to revise
opinions. We are not permitted to render an
advisory opinion, and if the same judgment
would be rendered by the state court after we
corrected its views of federal laws, our review could amount to nothing more than an
advisory opinion.
Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945).
If the Court accepted review, and if the Court
found the Court of Appeals erred in applying
Nollan and Dolan, in accordance with Herb, the Court
could only tell the Court of Appeals how to apply
them correctly. Under federal takings law, as discussed above, nexus and rough proportionality are
applied only when a permit for a proposed development conditions approval upon the conveyance of
property to public use. As also discussed above, there
28
is no proposed development in this case nor is there
a permit, much less a permit condition. Nollan and
Dolan are thus not applicable. The effect of a directive from the Court to not apply Nollan and Dolan
is the same as a finding that there has been no violation; the Ordinance would remain valid. Thus, any
decision by this Court would merely be a prohibited
advisory opinion. The Petition should be denied.
D. The case will be moot.
It is a basic principle of Article III that a justiciable case or controversy must remain “extant at all
stages of review, not merely at the time the complaint
is filed.” Arizonans for Official English v. Arizona,
520 U.S. 43, 67 (1997) (internal quotation marks omitted). Article III thus denies federal courts the power
“to decide questions that cannot affect the rights of
litigants in the case before them,” and authorizes only
the resolution of “ ‘real and substantial controvers[ies]
admitting of specific relief through a decree of a
conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ ” Lewis v. Continental Bank Corp.,
494 U.S. 472, 477 (1990).
By the end of 2012, the jurisdiction of the challenged Ordinance over shoreline property will end. In
accordance with Washington legislation passed in
2003 and 2010, the regulation of shoreline properties
will transfer from the GMA-based critical area regulations, including the Ordinance at issue here, to
29
Shoreline Management Master Programs adopted
pursuant to Chapter 90.58 of the Revised Code of
Washington. Wash. Rev. Code § 36.70A.480(3)(d) and
§ 90.58.610. At that time, and following the approval
of the Washington State Department of Ecology, the
challenged Ordinance will no longer impose buffers
on shoreline properties, and the fact that the court of
appeals affirmed the Ordinance’s constitutionality
will be moot. Any decision from this Court on the
constitutionality of the Critical Areas Ordinance or on
the correctness of the state court of appeals will thus
not have any effect on the rights of the parties to this
case. The decision will be advisory. Accordingly, the
Petition must be denied.
E. The court of appeals decision below is
correct.
While KAPO and Amici raise the specter of an
unconstitutional taking, the state court of appeals
opinion was a routine judicial review of a Growth
Management Hearings Board’s decision adjudicating
a challenge to local legislation. The decision was made
in the context of the well-established Washington rule
that “[l]ocal governments have broad discretion in developing [comprehensive plans] and [development
regulations] tailored to local circumstances.” King
County v. Central Puget Sound Growth Management
Hearings Bd., 142 Wash. 2d 543, 561, 14 P.3d 133,
142 (2000). This Washington rule is central to the
bottoms-up approach of GMA planning, and gives
30
wide latitude to local regulations that are consistent
with the goals and requirements of the GMA. Id.
In the courts below, the Growth Management
Hearings Board’s decision was reviewed for substantial evidence under the state Administrative Procedure
Act, Ch. 34.05 of the Revised Code of Washington
(APA). Under the APA, the test of substantial evidence is whether there is “a sufficient quantity of
evidence to persuade a fair-minded person of the
truth or correctness of the order.” Callecod v. Wash.
State Patrol, 84 Wash. App. 663, 673, 929 P.2d 510,
515 (1997). The decision and the affirming court of
appeals opinion found this test is satisfied by compliance with the GMA’s statutory requirement that each
local government is required to compile, review and
include best available science when adopting or
revising a critical areas ordinance. The Washington
State Court of Appeals rejected KAPO’s argument
that the Growth Board endorsed precautionary,
oversized buffers because substantial evidence supported the buffer widths. KAPO II, 160 Wash. App. at
270, 255 P.3d at 706. The County had complied with
state law. The decision of the court of appeals was
correct and should be upheld. The Petition urging
otherwise must be denied.
---------------------------------♦---------------------------------
CONCLUSION
KAPO’s Petition should be denied because it asks
this Court to do what it has repeatedly declined to do
31
in similar situations. This Court has refused to apply
Nollan and Dolan where there have been no conditions attached to a permit, and here there has not
even been a permit. Furthermore, there is no dedication required by the challenged Ordinance. For these
reasons and those set forth above, KAPO’s Petition
for Writ of Certiorari should be denied.
DATED: February 22, 2012
Respectfully submitted,
LISA NICKEL*
TIM TROHIMOVICH
KITSAP COUNTY
FUTUREWISE
PROSECUTING
814 Second Avenue,
ATTORNEY’S OFFICE
Suite 500
614 Division Street, MS-35A
Seattle, WA 98104
Port Orchard, WA 98366
Telephone: (206) 343-0681
Telephone: (360) 337-4974
E-mail: [email protected]
Facsimile: (360) 337-7083
ROBERT A. BEATTEY
E-mail:
SPENCER LAW FIRM, LLC
[email protected]
1326 Tacoma Ave. S.,
Suite 200
Counsel for Respondent
Tacoma, WA 98402
Kitsap County
Telephone: (206) 552-9001
* Counsel of Record
Facsimile: (253) 572-4207
E-mail:
[email protected]
Counsel for Respondents
Hood Canal Environmental
Council, People for Puget
Sound, West Sound
Conservation Council,
Kitsap Citizens for
Responsible Planning
and Futurewise