Petition for Writ of Certiorari — Preserve Responsible Shoreline Management, et al., Petitioners v. City of Bainbridge Island, Washington

No. ____

In the

Supreme Court of the United States

Preserve Responsible Shoreline Management, et al,

Petitioners,

v.

City of Bainbridge Island, et al,

Respondents.

On Petition for Writ of Certiorari to

the Washington Court of Appeals

PETITION FOR WRIT OF CERTIORARI

RICHARD M. STEPHENS

Stephens & Klinge LLP

10900 NE 4th St., Suite 2300

Bellevue, WA 98004

Telephone: (425) 453-6206

stephens@sklegal.pro

BRIAN T. HODGES

Counsel of Record

Pacific Legal Foundation

1425 Broadway, #429

Seattle, WA 98122

Telephone: (916) 419-7111

BHodges@pacificlegal.org

DEBORAH J. LA FETRA

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, CA 95814

ADITYA DYNAR

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 1000

Arlington, VA 22201

Counsel for Petitioners

i

QUESTIONS PRESENTED

To allocate the burden of mitigating regional

development impacts, a City of Bainbridge Island

ordinance requires shoreline property owners to

dedicate large portions of their residentially zoned

property as a condition on any new development, use,

or activity. Although the City considered scientific

studies during the legislative process, it chose to adopt

a standardized schedule of buffer widths—unrelated

to proposed uses or impact—based on its policy

preference to gain as much waterfront property as

feasible from new permit applicants to make up for

lost opportunities to exact land from earlier-issued

permits. Landowners challenged the City’s exaction as

violating the nexus and proportionality standards of

Nollan v. California Coastal Commission, 483 U.S.

825 (1987), and Dolan v. City of Tigard, 512 U.S. 374

(1994), on its face. The court below held that the

government automatically satisfies Nollan and Dolan

if it considers scientific studies as part of a legislative

process, even when it does not rely on scientific data

when demanding a dedication of property through

legislation.

The questions presented are:

1. Whether the government may avoid the nexus

and proportionality standards by asserting that an

exaction resulted from a legislative procedure that

involved consideration of science.

2. Whether legislative permit conditions are

exempt from the heightened scrutiny nexus and rough

proportionality tests (a question currently on review

in Sheetz v. County of El Dorado, No. 22-1047 (cert.

granted Sept. 29, 2023)).

ii

PARTIES TO THE PROCEEDINGS AND

RULE 29.6 STATEMENT

Petitioners Preserve Responsible Shoreline

Management,

Alice

Tawresey,

Robert

Day,

Bainbridge Shoreline Homeowners, Dick Haugan,

Linda Young, John Rosling, Bainbridge Defense

Fund, and Point Monroe Lagoon Home Owners

Association, Inc. were the petitioners-appellants in all

proceedings below.

Respondents City of Bainbridge Island and

Washington State Department of Ecology were the

respondents in all proceedings below. Respondents

Environmental Land Use Hearing Office and Growth

Management Hearings Board Central Puget Sound

Region are also named as respondents but did not

participate in the proceedings below.

CORPORATE DISCLOSURE STATEMENT

All Petitioners are listed in the caption. The

Petitioners that are not individuals have no parent

corporations and no publicly held companies own 10%

or more of their stock.

RULE 14.1(b)(iii) STATEMENT

The proceedings in the trial and appellate courts

identified below are directly related to the abovecaptioned case in this Court.

Preserve Responsible Shoreline Management v.

City of Bainbridge Island, Washington Court of

Appeals, No. 80092-2-I, 11 Wash. App. 2d 1040

(Dec. 9, 2019).

iii

Preserve Responsible Shoreline Management v.

City of Bainbridge Island, Washington Supreme

Court, No. 98365-8, 195 Wash. 2d 1029 (July 8, 2020).

Preserve Responsible Shoreline Management v.

City of Bainbridge Island, Kitsap County Superior

Court, No. 15-2-00904-6 (final decision dated Dec. 3,

2021).

Preserve Responsible Shoreline Management v.

City of Bainbridge Island, Washington Court of

Appeals, 24 Wash. App. 2d 1047 (Dec. 13, 2022)

(unpublished).

Preserve Responsible Shoreline Management v.

City of Bainbridge Island, Washington Supreme

Court, 1 Wash. 3d 1014 (June 7, 2023).

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ I

PARTIES TO THE PROCEEDINGS AND RULE

29.6 STATEMENT ............................................... II

CORPORATE DISCLOSURE STATEMENT ........... II

RULE 14.1(b)(iii) STATEMENT ............................... II

TABLE OF AUTHORITIES ..................................... VI

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL AND REGULATORY

PROVISIONS INVOLVED ................................... 2

INTRODUCTION AND SUMMARY OF REASONS

TO GRANT THE PETITION ................................ 2

STATEMENT OF THE CASE.................................... 6

A.

The Parties and Context of the Case ......... 6

B.

The City Set Its Buffer Widths Based on

Policy, Not Science .................................... 10

C.

The City’s Buffer Requirement Demands

Dedication of Private Property ................. 13

D.

Procedural History.................................... 17

REASONS TO GRANT THE PETITION................. 21

I. THE WASHINGTON COURT’S

“CONSIDERATION OF SCIENCE” RULE

CONFLICTS WITH DECISIONS OF THIS

COURT ............................................................ 21

II. COURTS ARE DIVIDED ON WHETHER AND

HOW NOLLAN AND DOLAN APPLY TO

v

EXACTIONS MANDATED

BY LEGISLATION .......................................... 31

CONCLUSION.......................................................... 35

APPENDIX

Opinion of the Washington State Court of Appeals,

filed December 13, 2022 ...................................... 1a

Memorandum Opinion and Order of the Superior

Court of Washington, in and for Kitsap County,

filed December 3, 2021 ...................................... 39a

Order of the Washington State Supreme Court,

denying Petition for Review,

filed June 7, 2023 .............................................. 47a

Order of the Washington State Court of Appeals,

denying Motion for Reconsideration,

filed January 19, 2023 ....................................... 49a

Ordinance of the City of Bainbridge Island, adopting

Shoreline Master Program Update, and SMP

regulations in relevant part .............................. 51a

vi

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson Creek Partners, L.P. v. County of

Harnett, 382 N.C. 1 (2022) .......................... 34, 35

Armstrong v. United States,

364 U.S. 40 (1960) ................................. 18, 22, 29

Atchison v. Career Service Council of Wyo.,

664 P.2d 18 (Wyo. 1983) .................................... 23

Ballinger v. City of Oakland,

24 F.4th 1287 (9th Cir. 2022) ...................... 19, 33

Beck v. City of Whitefish,

No. CV 22-44-M-KLD, 2023 WL 6379334

(D. Mont. Sept. 29, 2023) .................................. 18

Bennett v. Spear,

520 U.S. 154 (1997) ............................................. 9

Bostock v. Clayton Cnty.,

140 S. Ct. 1731 (2020) ....................................... 30

Brooks Mfg. Co. v. Nw. Clean Air Agency,

14 Wash. App. 2d 1 (2019) .................................. 5

Cal. Bldg. Indus. Ass’n v. City of San Jose,

577 U.S. 1179 (2016) ................................... 31, 34

Cedar Point Nursery v. Hassid,

141 S. Ct. 2063 (2021) ........................... 32, 33, 34

Citizens’ All. for Prop. Rts. v. Sims,

145 Wash. App. 649 (2008)................................ 18

City of Tacoma v. Welcker,

65 Wash. 2d 677 (1965) ..................................... 15

vii

In re Coles,

839 F. App’x 455 (Fed. Cir. 2020) ....................... 5

Common Sense Alliance v. Growth Mgmt.

Hearings Bd., Nos. 72235-2-I &

72236-1-I, 2015 WL 4730204

(Wash. Ct. App. Aug. 10, 2015) ......................... 32

Concrete Pipe and Products of Cal., Inc. v.

Construction Laborers Pension Trust for

S. Cal., 508 U.S. 602 (1993) .............................. 27

Dolan v. City of Tigard,

512 U.S. 374 (1994) ......... 2, 18, 22, 25, 26, 28, 34

Douglass Props. II, LLC v. City of Olympia,

16 Wash. App. 2d 158, 172 (2021)....................... 5

Frost v. Railroad Comm’n of Cal.,

271 U.S. 583 (1926) ........................................... 31

GenOn REMA, LLC v. U.S. E.P.A.,

722 F.3d 513 (3d Cir. 2013) ................................. 5

Group of Institutional Investors v. Chicago,

M., St. P. & P.R. Co.,

318 U.S. 523 (1943) ........................................... 21

Honesty in Env’t. Analysis and Legis. v.

Cent. Puget Sound Growth Mgmt.

Hearings Bd.,

96 Wash. App. 522 (1999).............................. 9, 19

Kitsap All. of Prop. Owners v. Cent. Puget

Sound Growth Mgmt. Hrgs. Bd., 160

Wash. App. 250 (2011) ............................ 4, 15, 19

Klickitat Cnty. v. Wash. State Dep’t of

Revenue, No. 01-070, 2002 WL 1929480

(Bd. Tax App., June 12, 2002) ........................... 15

viii

Koontz v. St. Johns River Water Mgmt.

Dist., 570 U.S. 595 (2013).................. 2, 22, 26, 34

Lake Burien Neighborhood v. City of Burien

& Dep’t of Ecology, No. 13-3-0012, 2014

WL 3710018 (Wash. Cent. Puget Sd.

Growth Mgmt. Hrgs. Bd., June 16, 2014) .......... 9

Levald, Inc. v. City of Palm Desert,

998 F.2d 680 (9th Cir. 1993) ............................. 19

Levin v. City & Cnty. of San Francisco,

71 F. Supp. 3d 1072 (N.D. Cal. 2014),

appeal dismissed and remanded,

680 F. App’x 610 (9th Cir. 2017) ....................... 18

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) ......................................... 33

McClung v. City of Sumner,

548 F.3d 1219 (9th Cir. 2008) ........................... 33

Nollan v. California Coastal Comm’n,

177 Cal. App. 3d 719 (1986) .............................. 24

Nollan v. California Coastal Comm’n,

483 U.S. 825 (1987) ................................. 2, 23, 24

Olympic Stewardship Found. v. State Env’t

& Land Use Hrgs. Off. through W. Wash.

Growth Mgmt. Hrgs. Bd.,

199 Wash. App. 668 (2017).......................... 10, 27

Parking Ass’n v. City of Atlanta,

515 U.S. 1116 (1995) ......................................... 32

Pegram v. Herdrich,

530 U.S. 211 (2000) ........................................... 27

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) ..................................... 29, 33

ix

Richardson v. Cox,

108 Wash. App. 881 (2001)................................ 15

Sec. & Exch. Comm’n v. Chenery Corp.,

318 U.S. 80 (1943) ......................................... 6, 30

Sheetz v. Cnty. of El Dorado,

84 Cal. App. 5th 394 (2022), cert.

granted (U.S. Sept. 29, 2023) .............. 3, 6, 32, 35

St. Johns River Water Mgmt. Dist. v.

Koontz, 183 So. 3d 396 (Fla. App. 2014) ........... 26

St. Johns River Water Mgmt. Dist. v.

Koontz, 5 So. 3d 8 (Fla. App. 2009) ................... 27

Thurston Cnty. v. W. Wash. Growth Mgmt.

Hrgs. Bd., 164 Wash. 2d 329 (2008) ................... 9

Washington Townhomes, LLC v.

Washington Cnty. Water Conservancy

Dist., 388 P.3d 753 (Utah 2016) ........................ 34

Watson v. Ft. Worth Bank and Trust,

487 U.S. 977 (1988) ........................................... 28

Yim v. City of Seattle,

194 Wash. 2d 651 (2019) ................................... 30

Constitution

U.S. Const. amend. V................................................ 2

U.S. Const. amend. XIV, § 1 ..................................... 2

Statutes

28 U.S.C. § 1257(a) ................................................... 1

City of Bainbridge Island City Code

Ch. 16.12 .............................................................. 2

Wash. Rev. Code § 58.17.020(3) ............................. 15

x

Wash. Rev. Code § 64.04.130 .................................. 15

Wash. Rev. Code § 90.58.020 .................................... 9

Other Authorities

Brief of Respondent, Koontz v. St. Johns

River Water Mgmt. Dist.,

No. 11-1447, 2012 WL 6694053

(U.S. June 20, 1988) .......................................... 26

Cordes, Mark W., Legal Limits on

Development Exactions: Responding to

Nollan and Dolan, 15 N. Ill. U. L. Rev.

513 (1995) .......................................................... 28

Rosenberg, Ronald H., The Changing

Culture of American Land Use

Regulation: Paying for Growth with

Impact Fees, 59 S.M.U. L. Rev. 177

(2006) ................................................................. 33

Wash. Admin. Code § 173-26-201 ............................ 9

Wash. Admin. Code § 173-26-201(2)(c) .................... 9

1

PETITION FOR WRIT OF CERTIORARI

Preserve Responsible Shoreline Management

(PRSM), Alice Tawresey, Robert Day, Bainbridge

Shoreline Homeowners, Dick Haugan, Linda Young,

John Rosling, Bainbridge Defense Fund, and Point

Monroe Lagoon Home Owners Association, Inc.

petition for a writ of certiorari to review the judgment

of the Washington Court of Appeals.

OPINIONS BELOW

The unpublished decision of the Washington Court

of Appeals is available at Preserve Responsible

Shoreline Management v. City of Bainbridge Island

(Div. II, No. 568080-II), reprinted at Appendix (App.)

1a. The court’s January 19, 2023, Order Denying

Reconsideration is reprinted at App.49a. The

Washington Supreme Court’s order denying the

petition for review is available at 195 Wash. 2d 1029

(2023) and reprinted at App.47a.

The unpublished decision of the Superior Court for

Kitsap County is reprinted at App.39a.

JURISDICTION

The decision of the Washington Court of Appeals

sought to be reviewed was issued on December 13,

2022, and denied reconsideration of that decision on

January 19, 2023. On July 7, 2023, the Washington

Supreme Court denied discretionary review. On

June 28, 2023, this Court granted an application for

an extension of time to file a petition for writ of

certiorari, to and including October 16, 2023. This

Court has jurisdiction under 28 U.S.C. § 1257(a).

2

CONSTITUTIONAL AND REGULATORY

PROVISIONS INVOLVED

The Takings Clause of the United States

Constitution provides that “private property [shall

not] be taken for public use without just

compensation.” U.S. Const. amend. V. This guarantee

is made applicable to the states by the Fourteenth

Amendment, which provides, in relevant part, that no

state shall “deprive any person of life, liberty, or

property, without due process of law.” U.S. Const.

amend. XIV, § 1. The “Shoreline Master Program”

ordinance at the center of the case is City of

Bainbridge Island City Code Ch. 16.12, excerpts of

which are reproduced at App.51a–71a.

INTRODUCTION AND SUMMARY OF

REASONS TO GRANT THE PETITION

Government may not condition a land-use permit

application on a public dedication of private property

without compensation unless the demand mitigates a

proportionate adverse public impact of the property’s

use. Koontz v. St. Johns River Water Mgmt. Dist., 570

U.S. 595, 604–05 (2013). Protection against such

extortionate demands is secured by the “essential

nexus” and “rough proportionality” tests set out in

Nollan v. California Coastal Commission, 483 U.S.

825, 836–37 (1987), and Dolan v. City of Tigard, 512

U.S. 374, 391 (1994). These tests require the

government to show that a permit condition is tailored

to mitigate only those public impacts caused by a

proposed land use. Dolan, 512 U.S. at 391. The

government’s failure to prove sufficient tailoring

violates the doctrine of unconstitutional conditions,

rendering the government’s demand invalid as a

taking without just compensation. Id.

3

But that constitutional guarantee is not enforced

in a uniform and predictable manner across the

nation. For decades, some lower courts have

distinguished between exactions imposed on an ad hoc

adjudicative basis (in which case they apply the

Nollan and Dolan tests) and permit exactions

authorized by legislation (in which case they do not).

This Court recently granted certiorari to resolve this

longstanding and entrenched split of authority in

Sheetz v. County of El Dorado, No. 22-1074 (Order

granting certiorari, Sept. 29, 2023).

This Petition presents a further aspect of the

legislative versus adjudicative exactions controversy

that warrants review—one that is being advanced by

the government respondent in Sheetz—that

compliance with a statute can automatically satisfy

the Nollan and Dolan tests. 1 The court below held that

regulations demanding land dedications purporting to

“allocate the burden” of addressing regional impacts

to the shoreline, App.7a, automatically satisfied the

heighted scrutiny required by Nollan/Dolan because

the City engaged in the standard legislative procedure

of considering scientific studies prior to issuing the

regulations. The court accepted the City’s legislative

process in lieu of any site-specific findings as to how

individual properties affected the environment to

justify its across-the-board, “standardized” buffer

dedication requirements. App.9a, 35a. Had the

1 See Opposition to Petition for Writ of Certiorari, Sheetz v.

County of El Dorado, No. 22-1074, at 7–19 (July 5, 2023) (arguing

that the County’s compliance with “the procedures and processes

set forth in California’s legislatively enacted [Mitigation Fee

Act]” should automatically satisfy Nollan and Dolan).

4

dedications been imposed as permit conditions by

executive officials, without express legislative

authority, there would be no question that Nollan and

Dolan apply. But because the City imposed the

dedication by general ordinance (its Shoreline

Management Program (Program)), the court rubberstamped across-the-board exactions of large

conservation buffers that clearly violate the nexus and

proportionality tests. The City shifts the burden of

addressing offsite and historic impacts onto new

development through buffers that are bigger than

necessary to mitigate anticipated project impacts

because the size of the dedication is based solely on

“city policy, not science-based information.”

Administrative Record (AR).5824 (conclusion of

adjudicative agency) (emphasis added).

Although the Washington state court nominally

held the City’s buffer condition subject to Nollan and

Dolan, App.34a, it avoided the substance of the nexus

and proportionality tests entirely. It adopted a rule

that a local government automatically satisfies Nollan

and Dolan if it engages in “a reasoned, objective

analysis of the science” when it legislates a land-use

law mandating the dedication of property—even if the

government doesn’t rely on scientific data when

restricting property rights. App.35a, 37a. This new

rule adds to a growing body of Washington caselaw

holding legislative exactions subject either to a lesser

standard of constitutional protection, see Kitsap All. of

Prop. Owners (KAPO) v. Cent. Puget Sound Growth

Mgmt. Hearings Bd., 160 Wash. App. 250, 272 (2011)

(concluding that Nollan and Dolan establishes a “due

process argument that the [buffers] must be

reasonably necessary to achieve a legitimate

government objective” and that when “the local

5

government use[s] the best available science in

adopting its critical areas regulations, the permit

decisions it bases on those regulations will satisfy the

nexus and rough proportionality rules”), or to no

protection at all. See Douglass Props. II, LLC v. City

of Olympia, 16 Wash. App. 2d 158, 172 (2021) (“We

hold that the Nollan/Dolan test does not apply

to . . . legislatively prescribed generally applicable

fees . . . .”).

The lower court’s reasoning wrongly conflates the

purpose and function of ordinary legislative

procedures (reviewing and synthesizing often

incomplete and contradictory information) with the

purpose and function of the nexus and proportionality

tests (rough mathematical calculation based on actual

data). The court below did not understand that

“consideration of science” is a process, Brooks Mfg. Co.

v. Nw. Clean Air Agency, 14 Wash. App. 2d 1, 9 (2019)

(“science” is “a method, study, or a process”); In re

Coles, 839 F. App’x 455, 457 (Fed. Cir. 2020) (“‘science’

refers generally to ‘a systematic method or body of

knowledge in a given area’”), and “relevant scientific

data” are the results of the process. See GenOn REMA,

LLC v. U.S. E.P.A., 722 F.3d 513, 526 (3d Cir. 2013)

(agency “examined the relevant scientific data and

clearly articulated a ‘satisfactory explanation for its

action, including a rational connection between the

facts found and the choice made’”) (citation omitted).

A rule that requires only that the City consider

“science” allows it to engage in an incomplete process

with no consideration of how the City weighed the

resulting data (i.e., facts) under the nexus and

proportionality tests. Consequently, the court

improperly filled the gaps in the actual data and

supplied its own reasons for the property exactions.

6

See Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S.

80, 88 (1943) (an appellate court cannot substitute its

reasons in place of those given by the agency). Even

these court-generated reasons cannot justify the

dedications under the nexus and proportionality tests,

leaving property owners subject to the very type of

predetermined and coercive land demands that

Nollan and Dolan forbid.

The Court, which is set to determine whether

legislative exactions are subject to Nollan and Dolan,

should grant this petition to provide nationwide

uniformity on the critically important and related

question whether legislative exactions are reviewed

subject to the same heightened nexus and

proportionality standard as adjudicative exactions, or

whether the existence of a legislative process alone

satisfies those tests. In the alternative, it should

consider holding the petition until Sheetz is decided to

consider whether it is appropriate to grant the

petition, vacate the lower court decision, and remand

for further consideration in light of any judgment in

Sheetz that is contrary to the judgment below.

STATEMENT OF THE CASE

A. The Parties and Context of the Case

The City of Bainbridge Island is a bedroom

community of more than 25,000 residents located a

short eight-mile ferry ride across Puget Sound from

Seattle. The island is approximately twelve miles long

and five miles wide. The geography of the island’s 53mile shoreline varies widely—from sandy beaches and

tideflats to rocky outcrops and cliffs. AR.4001.

The City’s shoreline is zoned primarily for singlefamily residential use. By 2012, approximately 82% of

7

the island’s 2,262 shoreline lots were fully developed

with single-family homes, housing roughly one-third

of the City’s residents. AR.4074. In addition to homes

and apartment buildings, the historic development of

bulkheads, docks, public roads, and drainage ditches

along the shoreline removed much of the native

vegetation and altered the natural ecological

functions of the area, such that only a tiny percentage

of the island’s shoreline property warrants a “natural”

designation. AR.4011, 4096 (“Only two areas [of the

island] . . . are relatively unmodified.”). The following

map shows the land use designations on the City

shoreline: 2

2 Reprinted

from

the

City’s

website

at

https://www.bainbridgewa.gov/DocumentCenter/View/4352/Offi

cial-Shoreline-Designations-Nov-18-2014c?bidId=. Cf. AR.42

(same map with different legends and legibility).

8

In 2014, when beginning the process of updating

its Program, the City sought to drastically expand the

size and scope of its conservation buffers, within

which property owners cannot develop or use their

land, with very limited exceptions. AR.109, 114–16. To

do so under Washington’s Shoreline Management Act

(“Act”), cities must collect and consider “the most

9

current, accurate, and complete scientific and

technical information available.” Wash. Rev. Code

§ 90.58.020; Wash. Admin. Code § 173-26-201. The Act

ties mitigation requirements such as conservation

buffers to the actual conditions of area shorelines by

directing the city to develop a scientific record

establishing the shorelines’ conditions “as they

currently exist.” Wash. Admin. Code § 173-26201(2)(c). The Act thus appears to incorporate preexisting caselaw holding that sufficiently site-specific

scientific data 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.” Honesty in Env’t.

Analysis and Legis. (HEAL) v. Cent. Puget Sound

Growth Mgmt. Hearings Bd., 96 Wash. App. 522, 531–

33 (1999) (citing Bennett v. Spear, 520 U.S. 154 (1997)

(the science requirement ensures that regulations are

not based on “speculation and surmise” or the result

of overzealous ambitions)).

But a change in Washington law carved a massive

loophole into the Act’s original science-focused

process, undercutting HEAL, and setting the stage for

the decision in this case. First, the Growth

Management Hearings Board (“Growth Board”)—a

“quasi-judicial agency” charged with interpreting the

Act 3—construed the Act’s science provisions to be only

procedural in nature. Lake Burien Neighborhood v.

City of Burien & Dep’t of Ecology, No. 13-3-0012, 2014

WL 3710018, at *6 (Wash. Cent. Puget Sd. Growth

Mgmt. Hrgs. Bd., June 16, 2014). According to the

Growth Board, the Act requires only that a local

3 Thurston Cnty. v. W. Wash. Growth Mgmt. Hrgs. Bd., 164 Wash.

2d 329, 358 (2008).

10

government collect and consider the required studies

during the update process. There is no requirement,

however, that the science be sufficient to address the

necessity for a buffer. App.15a (acknowledging that

the required record contained “gaps in scientific data

and uncertainties”). Nor is there any requirement that

a Program’s mitigation measures be based on those

studies. Instead, once the local government collects a

folio of studies and “considers” them, it may freely

ignore any reported data gaps or conflicts, and set

conservation buffer sizes to achieve its policy goals. Id.

Second, an appellate court compounded the effect of

the Growth Board’s ruling by holding that “private

property rights are secondary to the SMA’s primary

purpose, which is to protect the state shorelines as

fully as possible.” Olympic Stewardship Found. v.

State Env’t & Land Use Hrgs. Off. through W. Wash.

Growth Mgmt. Hrgs. Bd., 199 Wash. App. 668, 690

(2017).

These rulings gave the City of Bainbridge Island

the green light to collect and consider—then ignore—

scientific evidence in favor of policy-based buffers that

significantly restrict property rights.

B. The City Set Its Buffer Widths Based on

Policy, Not Science

When the City began updating its Program in

2010, it wanted to increase the size of its

“standardized shoreline buffer” dedication, App.9a, in

order to “allocate the burden of these cumulative

impacts among development opportunities.” Ecology

Resp. Br. at 32. Pursuant to the Act, the City

commissioned studies documenting the ecological

conditions of its shoreline and the potential impacts of

new and existing land uses along with a variety of

11

potential mitigation strategies, including buffers.

AR.348–59.

But the City’s science consultant warned that the

scientific record was “dated and lacked accuracy” and

identified significant “data gaps.” AR.4097. Moreover,

a councilmember observed that the science regarding

buffers was “inconsistently applied” and riddled with

“uncertainties.” AR.2868. The City’s consultant

documented that the only available studies were so

generalized that they could suggest buffers ranging

“from as little as 16 feet to as large as 1,969 feet.”

AR.359. He explained that the existing studies could

not justify the necessity and effectiveness of any buffer

within that exceptionally broad range without data on

multiple, unaddressed factors such as whether

portions of shoreline were forested or already cleared

or developed. AR.3968. Indeed, the City’s consultant

noted that the studies were based on a false

assumption that all shoreline properties are fully

forested and free of conditions that limit the

effectiveness of buffers. AR.4307–08. On that point, a

City councilmember acknowledged that “[m]ost of the

properties that this [buffer] would apply to would be

those that have lawn up to the beach.” AR.2883.

In light of these inadequacies, the City’s consultant

recommended that, to develop scientifically

supportable buffers, the City must engage in “sitespecific” studies “to . . . understand . . . the potential

direct, indirect and cumulative impacts” of existing

and future development, AR.4100, which would

provide the data necessary to determine the width

necessary for a buffer to mitigate the impacts of

proposed development. AR.4310 (warning that, on

marine shorelines, site-specific information is “more

12

important” for determining effectiveness of buffers).

The consultant further advised the City to identify the

sources of existing environmental stressors (such as

stormwater runoff from public roads, ditches, and

other upland uses) and the currently existing range of

impacts that neighboring development may have on

shoreline conditions. AR.4097–4100; AR.4299–4302.

Without new studies addressing those factors, the

consultant could not recommend any science-based,

site-appropriate buffers consistent with the City’s

desire to increase the Program’s mandatory buffer

widths. AR.4314.

The City ignored its consultant’s warnings and

calls for additional scientific data prior to making

buffer recommendations. AR.2882. Instead, the City

forged ahead and established a table of “standardized”

buffer widths, App.9a, based on its policy preferences.

AR.5824 (agency finding); AR.2879 (consultant

testifying that the “specific width . . . is part of the

policy recommendation”).

The City’s key policy demanded “as much

protection as feasible” from new development because

of its “severely limited” ability to address the

preexisting impacts of historic development.

AR.3969–70; see also App.7a (the City chose to target

only new “development opportunities” to achieve these

goals). That is, rather than paying for conservation

easements to address the unmitigated shoreline

impacts of existing development, the City chose to

target only property owners seeking new uses to bear

the burden of mitigating preexisting damage to the

shoreline ecology. It made no effort to establish

mitigation requirements on a parcel-by-parcel basis.

AR.4285–86. According to the City’s consultant, the

13

City chose “to focus its buffer efforts” on new uses

because it could use the permitting process to force the

owner, via the buffer dedication, to replant previously

cleared portions of the waterfront in order to create

“intact marine riparian areas” sufficient in size to

meet its goal of protecting the shoreline against all

existing and future impacts. AR.3969, AR.2878–79.

This reasoning resulted in buffers up to 100% larger

than those it had previously demanded from the

majority of the island’s established shoreline

residential property owners. AR.96, 364.

C. The City’s Buffer Requirement Demands

Dedication of Private Property

As a mandatory condition on any new

“development, use, or activities” on shoreline

property, the owner must dedicate a perpetual

conservation area encompassing between 50–200 feet

of private shoreline property. App.53a. The Program

divides the conservation buffer into two zones.

App.9a–10a. The more restrictive area—Zone 1—

extends from a minimum of 30 feet from the shoreline

or to the limit of any existing native vegetation on the

lot, whichever is greater. App.61a–62a. Zone 1

expands automatically based solely on the presence of

a native plant, whether it is a stand of mature cedar

trees or a single sword fern. Id.; AR.388–401. Within

Zone 1, the City does not consider the specific land-use

proposal or its anticipated impacts. The Program

flatly bans nearly all residential structures, uses, and

activities in order to separate and maintain the

property “in a predominantly natural, undisturbed

and vegetated condition.” App.59a; AR.115–16 (the

three structures that may be permitted within Zone 1

are a boathouse, a permeable deck/patio, or a

14

staircase); App.63a–64a (requiring a permit to engage

in routine “activities” like landscape maintenance and

minor pruning within the buffer zone).

“Zone 2” is the area landward of Zone 1 and covers

the remainder of the prescribed conservation area,

App.9a–10a, the size of which is established based on

the property’s zoning designation and its primary

geographic characteristics—again, the width of the

buffer is “standardized,” App.9a, and determined with

no consideration of project-specific impacts. App.62a.

While less highly restrictive than Zone 1, the Zone 2

buffer still operates as a presumptive restriction on

structures, uses, and even the types of plants that an

owner can put in his or her garden. Id. Because, like

Zone 1, it restricts property without regard to any

specific land use proposal, owners must dedicate the

same buffer area to build a small 120-square-foot

patio extension or a new 3,500-square-foot home.

App.53a; AR.373–74.

To ensure that property owners will maintain the

most restrictive portion of the buffer in perpetuity, the

Program was crafted to “set that [land] aside” from the

owner. AR.2889–90. Indeed, the “fundamental

thought” behind the “Zone 1” buffer was the City’s

recognition that “we need to have this area” to meet

its goal of improving areawide conditions. AR.2885

(City consultant’s testimony). The City also demanded

buffers that are “larger than the bare minimum

needed for protection” to implement a policy to avoid

a “worst case scenario” and “ensure [ecological]

success in the face of uncertainty about site-specific

conditions.” AR.4314; see also AR.42 (City relied on

the “precautionary principle . . . as guidance in

updating the policies and regulations of this

15

[Program].” App.51a. The City’s buffers were thus

designed to “allocate the burden of addressing

cumulative impacts” onto only those landowners who

seek permission to make a new use of their property.

App.7a; City Resp. Br. at 24.

To implement the City’s burden-shifting policy, the

Program requires all current and future owners to

perpetually maintain and manage the conservation

area “in a predominantly natural, undisturbed and

vegetated condition” in order to “protect,” “enhance,”

and “restore” the marine shoreline. 4 App.56a; AR.106.

The Growth Board appropriately characterized the

The lower court’s decision to hold the Program’s buffer

provisions subject to Nollan and Dolan, App.33a—37a, is

consistent with Washington property law, which recognizes that

a buffer area represents an independent property interest that

may be taken in the public interest and holds that shoreline

buffers “must . . . satisfy the requirements of nexus and rough

proportionality established in Dolan and Nollan.” KAPO, 160

Wash. App. at 272; see also City of Tacoma v. Welcker, 65 Wash.

2d 677, 683 (1965) (the acquisition of a riparian buffer to protect

water quality constitutes an exercise of eminent domain);

Klickitat Cnty. v. Wash. State Dep’t of Revenue, No. 01-070, 2002

WL 1929480, at *5–6 (Bd. Tax App., June 12, 2002) (a buffer area

is a separate interest from the lot; the holder of the conservation

interest owns that interest); Wash. Rev. Code § 64.04.130 (“A

development right, easement, covenant, restriction, or other

right, or any interest less than the fee simple, to protect . . . or

conserve for open space purposes . . . constitutes and is classified

as real property.”). Washington property law imposes no formal

requirements on how a dedication may be achieved, recognizing

that an owner need only show an intent to bind his property.

Richardson v. Cox, 108 Wash. App. 881, 884, 890–91 (2001); see

also Wash. Rev. Code § 58.17.020(3) (defining a dedication as “the

deliberate appropriation of land by an owner for any general

public uses, reserving to himself or herself 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”).

4

16

buffer dedications as “conservation easements.”

AR.5849–52; AR.3847 (Department of Ecology

adopting the Board’s “conservation easement”

characterization).

Critically, the Program provides no mechanism to

reduce the size of the standardized conservation

buffer to an area necessary only to mitigate for the

impacts of their proposed property use. Property

owners must either accept the City’s default easement

requirement, App.53a–54a, or, at their own expense,

prepare a “site-specific analysis of potential impacts

and a mitigation plan,” AR.101, to justify a differently

configured conservation area of equal or greater size.

App.57a–61a. The Program includes no option for

reducing the size of the easement. The reconfiguration

option does not address the constitutional

inadequacies of the standardized buffer demand

because it requires the owner—not the government—

to bear the cost of preparing a site-specific study based

only on the same science the City found inadequate

and using only City-approved experts. App.58a–59a;

AR.306–07. It also requires that the buffer go beyond

Nollan and Dolan’s mitigated-development standards

by demanding that the owner “clearly demonstrate”

that

the

reconfigured

buffer

will

provide

environmental benefits “greater than would be

provided by the prescribed . . . buffers.” App.71a

(emphasis added). Altered buffers must also mitigate

“effects that may occur off-site,” App.54a, and account

for “cumulative impacts of similar developments over

time.” App.55a.

An owner who fails to comply with the City’s buffer

requirements is subject to civil and criminal penalties,

including fines of up to $1,000 per day and jail time if

17

an owner commits two or more violations within any

12-month period. App.67a.

D. Procedural History

Petitioners are homeowners and associations on

Bainbridge Island who formed Preserve Responsible

Shoreline Management (PRSM). PRSM’s mission is to

protect landowners’ rights by advocating for a

balanced and scientifically supportable approach to

land use laws. It engages in education and outreach,

and provides public comment on proposed land use

regulations. PRSM is the primary local association in

the City representing the interests of landowners

faced with increasing regulation of their property.

PRSM represents the interests of landowners who

wish to develop their residential properties and who

are subject to the Program’s preset buffer dedication

demands. AR.6–7.

As required by state law, PRSM challenged the

City’s Program by petitioning the Growth Board,

which upheld the buffers even though the “[b]uffer

widths [are] set by city policy, not science-based

information,” AR.5824, and may not, therefore, meet

any of the recommendations contained in the

incomplete scientific record. AR.5825 n.77. PRSM

timely petitioned a Washington state court for judicial

review of the Board’s decision. Clerk’s Papers (CP).1–

166; CP.183–200. PRSM alleged that the City’s

decision to rely on burden-shifting policy grounds to

set buffer widths facially violated the doctrine of

unconstitutional conditions because it is undisputed

that the standardized buffers are larger than

necessary to mitigate only the impacts of new

residential use, and that they improperly address both

the preexisting impacts of historic uses and the

18

potential impacts of future uses. 5 See Dolan, 512 U.S.

at 384 (“One of the principal purposes of the Takings

Clause is ‘to bar Government from forcing some people

alone to bear public burdens which, in all fairness and

justice, should be borne by the public as a whole.’”)

(quoting Armstrong v. United States, 364 U.S. 40, 49

(1960)).

PRSM’s claim relied on state and federal decisions

holding that a legislatively mandated exaction facially

violates the nexus and proportionality tests where it

“imposes a uniform requirement . . . on each lot,

unrelated to any evaluation of the demonstrated

impact of proposed development.” Citizens’ All. for

Prop. Rts. v. Sims, 145 Wash. App. 649, 668 (2008)

(applying Nollan and Dolan); Levin v. City & Cnty. of

San Francisco, 71 F. Supp. 3d 1072, 1084–85 (N.D.

Cal. 2014), appeal dismissed and remanded, 680 F.

App’x 610 (9th Cir. 2017) (ordinance that set a

predetermined tenant relocation fee schedule without

any requirement that the government tailor its fees to

the actual impacts of an owner’s use of his property

facially violated the Takings Clause); see also Beck v.

City of Whitefish, No. CV 22-44-M-KLD, 2023 WL

6379334, at *11 (D. Mont. Sept. 29, 2023) (certifying

class upon conclusion that there is no barrier to a

facial Nollan/Dolan claim). The trial court, however,

never addressed the merits of this argument,

dismissing the constitutional claim as nonjusticiable.

CP.639–46.

PRSM appealed, reasserting its unconstitutional

conditions claim and relying on record evidence that

proved that the preset buffer widths were based on

5 CP.252–56, 265–78, 570–91; AR.3708.

19

policy preferences that make no attempt to satisfy

nexus and proportionality. The appellate court agreed

that the homeowners’ facial unconstitutional

conditions claim was justiciable, reversing the trial

court on that threshold question. App.34a (“In the

context of a facial challenge to a land use ordinance,

the ordinance ‘must comply with the nexus and rough

proportionality limits the United States Supreme

Court has placed on governmental authority to impose

conditions on development applications.’”) (citation

omitted). The court also agreed that the buffers are

imposed on any new development, use, or activity in a

“standardized” manner, App.9a, and held the demand

subject to Nollan and Dolan. 6 App.34a.

But on the merits, the state appellate court did not

analyze the dedication requirements under the nexus

and proportionality test. Instead, the court followed a

state court-created rule that the government

automatically

satisfies

the

doctrine

of

unconstitutional conditions if it engages in “a

reasoned, objective analysis of the science” when

developing regulations that exact a mandatory

dedication of property. App.35a (citing KAPO, 160

Wash. App. at 273 (ruling that legislatively mandated

Washington law holds that buffer demands are exactions

subject to Nollan and Dolan and must satisfy the nexus and

proportionality test in both as-applied and facial challenges.

KAPO, 160 Wash. App. at 272; HEAL, 96 Wash. App. at 533; see

also Ballinger v. City of Oakland, 24 F.4th 1287, 1299 (9th Cir.

2022) (a facial unconstitutional conditions challenge asks

whether the enactment of the statute demands a transfer of a

property interest that is not sufficiently related to the impacts of

a proposed property use); Levald, Inc. v. City of Palm Desert, 998

F.2d 680, 688 (9th Cir. 1993) (applying the same standard in a

facial takings claim).

6

20

buffers will automatically satisfy Nollan and Dolan if

the government considers science when developing

the law)).

Applying that rule, the court noted that the City

knew that the scientific record contained

“assumptions made concerning, and data gaps in, the

scientific information” and “uncertainties” regarding

the buffers. App.14a–15a. But the court believed that

the City did everything it was constitutionally

required to do when it considered the limited scientific

evidence available and, having done so, held that the

City could choose buffer widths based on its preferred

burden-shifting policy. App.37a n.11. Thus, the court

ruled that the City’s exaction “passe[d] these nexus

and proportionality tests” simply because the City

considered generalized “science” during its update

process, App.37a, and further suggested that the only

way it could violate Nollan and Dolan’s tests would be

“if the buffer widths [were] in excess of what the

[concededly uncertain and incomplete] science would

allow,” id. at n.11, dicta that, taken at face value,

authorizes the government to demand buffers of up to

nearly a half mile (1,969 feet) without ever

demonstrating nexus and proportionality and without

paying just compensation.

PRSM moved for reconsideration, which was

denied. App.49a. The Washington State Supreme

Court thereafter denied PRSM’s petition for review.

App.47a. This petition follows.

21

REASONS TO GRANT THE PETITION

I.

THE WASHINGTON COURT’S

“CONSIDERATION OF SCIENCE”

RULE CONFLICTS WITH DECISIONS OF

THIS COURT

The Washington Court of Appeals adopted a rule

that a local government satisfies Nollan and Dolan if

it engages in “a reasoned, objective analysis of the

science” when developing regulations that demand a

dedication of property for a public environmental use.

App.35a. This rule operates categorically, allowing the

government to disregard the “considered” science

when regulating the size of the dedication. App.37

n.11. A showing the government considered science,

alone, cannot satisfy the nexus and proportionality

requirements. See Group of Institutional Investors v.

Chicago, M., St. P. & P.R. Co., 318 U.S. 523, 570

(1943) (“lip service” cannot replace adherence to legal

principles). Indeed, the lower court’s ruling conflicts

with Nollan, Dolan, and Koontz by elevating an

ordinary legislative procedure—the same procedure

the government followed when developing the

conditions at issue in Nollan, Dolan, and Koontz—

over the substance of the nexus and proportionality

tests. It operates as a rubber stamp because, so long

as the government follows a statutory process, courts

may ignore the lack of actual scientific data necessary

to evaluate easement dedications under the nexus and

proportionality tests. Id. This rule renders Nollan and

Dolan dead letters in Washington, at least with regard

to legislative exactions.

22

The nexus and proportionality tests exist to protect

property owners’ constitutional right to just

compensation when the government takes property

for a public use. The Court designed the Nollan and

Dolan tests to ensure that individual landowners are

not singled out during the permitting process to bear

the burdens of public policies—like reversing historic

damage to shoreline vegetation—that should be

distributed among the public as a whole. Dolan, 512

U.S. at 84 (quoting Armstrong, 364 U.S. at 49).

Faithful application of those tests is essential because

landowners “are especially vulnerable to the type of

[impermissible

burden

shifting]

that

the

unconstitutional-conditions

doctrine

prohibits

because the government often has broad discretion to

deny a permit that is worth far more than property it

would like to take.” Koontz, 570 U.S. at 605. Together,

therefore, the nexus and proportionality tests ensure

that: (1) the government may require a landowner to

dedicate property to a public use only when necessary

to mitigate adverse impacts of proposed development,

Dolan, 512 U.S. at 385 (“[G]overnment may not

require a person to give up the constitutional right . . .

to receive just compensation when property is taken

for a public use . . . in exchange for a discretionary

benefit [that] has little or no relationship to the

property.”); and (2) the government may not use the

permit process to coerce landowners into giving

property to the public that the government would

otherwise have to pay for. Koontz, 570 U.S. at 604–06.

This Court’s exactions trilogy shows that mere

procedural consideration of “science” prior to adopting

regulations cannot alone satisfy the constitutional

concerns addressed by Nollan and Dolan. Instead,

Nollan and Dolan require a complete record

23

memorializing a local government’s use of scientific

data and other information as necessary evidence of

the decision-making process, allowing the court to

evaluate whether a property demand satisfies the

nexus and proportionality standards. See Atchison v.

Career Service Council of Wyo., 664 P.2d 18, 25 (Wyo.

1983) (Thomas, J., dissenting) (in unconstitutional

conditions case, noting that “[t]he majority of the court

choose to treat this as an issue with respect to whether

the agency observed the procedure required by law,

[but] [f]or me this disposition simply fails to recognize

the more significant question as to whether this is

agency action ‘contrary to constitutional right’”).

In Nollan, this Court emphasized that a showing

of rationality alone cannot satisfy the doctrine of

unconstitutional conditions. Nollan, 483 U.S. at 840–

41. There, the California Coastal Commission, acting

pursuant to state legislation, 7 required Patrick Nollan

to dedicate an easement over a strip of his private

beachfront property as a condition for obtaining a

permit to rebuild his home. 483 U.S. at 827–28. The

Commission justified the condition on the grounds

that “the new house would increase blockage of the

view of the ocean, thus contributing to the

development of ‘a “wall” of residential structures’ that

would prevent the public ‘psychologically . . . from

realizing a stretch of coastline exists nearby that they

7 Nollan, 483 U.S. at 828–30 (citing California Coastal Act and

California Public Residential Code); see also id. at 858 (Brennan,

J., dissenting) (pursuant to the California Coastal Act of 1972, a

deed restriction granting the public an easement for lateral

beach access “had been imposed [by the Commission] since 1979

on all 43 shoreline new development projects in the Faria Family

Beach Tract”).

24

have every right to visit,’” and would “increase private

use of the shorefront.” Id. at 828–29 (quoting

Commission staff report). Nollan refused to accept the

condition and brought a federal takings claim against

the Commission in state court, arguing that the

condition was a taking because it bore no logical

connection to the impact of his proposed development.

The California Court of Appeal upheld the

condition, specifically noting that the Commission had

relied on multiple studies when fashioning the permit

condition. Nollan v. California Coastal Comm’n, 177

Cal. App. 3d 719, 722 (1986). This Court nonetheless

reversed because, even crediting those studies, the

permit condition still lacked an “essential nexus” to

the alleged public impacts that would result from the

Nollans’ project. Nollan, 483 U.S. at 837. Because

rebuilding the Nollans’ home could have no impact on

public-beach access, the Commission could not justify

a permit condition requiring them to dedicate an

uncompensated easement over their property. Id. at

838–39. Without a sufficient nexus between a permit

condition and a project’s alleged impact, the easement

condition was “not a valid regulation of land use but

‘an out-and-out plan of extortion.’” Id. at 837 (citations

omitted). In reaching this conclusion, this Court

explained that the various studies showing that the

dedication would serve the public interest cannot

satisfy the nexus test; instead, such studies indicate

that the Commission should pay for the property. Id.

at 841–42.

Dolan, too, refused to give determinative

significance to the government’s consideration of

science when developing its permit conditions. There,

acting pursuant to the City of Tigard’s development

25

code, 8 the city imposed two conditions on Florence

Dolan’s permit to expand her plumbing and electrical

supply store: to dedicate approximately 10 percent of

her land as a stream buffer and for a bicycle path. 512

U.S. at 377, 380. Dolan refused to comply with the

conditions and sued the city in state court on a federal

takings claim. This Court held that although the city

established a nexus between both conditions and

Dolan’s

proposed

expansion,

the

conditions

nevertheless effected an unconstitutional taking

because they lacked a “degree of connection between

the exactions and the projected impact of the proposed

development.” Id. at 386. Looking to the justifications

memorialized in the city’s record, Dolan held that the

city had not demonstrated that the conditions were

roughly proportional to the impact of Dolan’s change

in land use. Thus, the permit conditions

unconstitutionally took Dolan’s property without just

compensation. Id. at 379–80, 391.

Like Nollan, this Court acknowledged that the

City of Tigard had relied on valid studies showing the

beneficial effects of dedications to mitigate traffic and

stormwater impacts when enacting its development

code. Dolan held, once again, that this consideration

and reliance is not enough to satisfy the doctrine of

unconstitutional conditions. Id. at 392, 395. The rough

proportionality test requires the government to

engage

in

an

individualized,

site-specific

determination of impacts requiring mitigation

because “generalized statements as to the necessary

connection between the required dedication and the

proposed development [are] too lax to adequately

8 Dolan, 512 U.S. at 379–80.

26

protect petitioner’s right to just compensation if her

property is taken for a public purpose.” Id. at 389. The

bicycle path condition failed the test because the city

made no showing that a bicycle path could offset any

of the increased traffic resulting from a plumbing

store expansion. Id. at 395–96. The stream buffer

condition similarly lacked rough proportionality

because lesser regulatory restrictions (such as

setbacks and open space requirements) could

sufficiently

mitigate

the

project’s

increased

stormwater flow. Id. at 393–95 (“The city has never

said why a public greenway, as opposed to a private

one, was required in the interest of flood control.”).

Koontz also involved a legislatively mandated

exaction that set in-lieu impact fees based on a state

agency’s schedule of wetland mitigation ratios. 570

U.S. at 600. Like Nollan and Dolan, the state had

considered extensive ecological data when developing

its wetland protection laws. Brief of Respondent,

Koontz v. St. Johns River Water Mgmt. Dist., No. 111447, 2012 WL 6694053, at *4–*13 (U.S. June 20,

1988) (citing Fla. Dep’t of Env. Reg., Policy for

“Wetlands Preservation-as-Mitigation”). Once again,

the government’s consideration and reliance on

scientific studies did not deter this Court from ruling

that the impact fee must still satisfy the questions

asked by the nexus and proportionality tests. Koontz,

570 U.S. at 616. Thus, this Court remanded to the

Florida courts to assess whether the record showed

that the exaction passed those tests. Id. at 619.

Applying the nexus and proportionality tests on

remand, the Florida Court of Appeals held that the

exaction was an unconstitutional taking. St. Johns

River Water Mgmt. Dist. v. Koontz, 183 So. 3d 396, 398

27

(Fla. App. 2014), adopting rationale and holding of St.

Johns River Water Mgmt. Dist. v. Koontz, 5 So. 3d 8,

10 (Fla. App. 2009) (affirming trial court that applied

the constitutional standards of Nollan and Dolan,

heard conflicting evidence, ruled that the District

effected a taking of Koontz’s property, and awarded

damages).

The Washington court’s ruling below conflicts with

this Court’s precedent in three ways.

1. First, the “consideration of science” rule

assumes that the City’s compliance with a procedural

requirement to collect and consider “science” prior to

mandating a buffer dedication necessarily satisfies

Nollan and Dolan. App.35a. That reasoning, however,

wrongly conflates the purpose of the Shoreline

Management Act—“to protect the state shorelines as

fully as possible,” Olympic Stewardship Found., 199

Wash. App. at 690—with the purpose of the nexus and

proportionality tests—to protect private property

rights from uncompensated takings. The Act explicitly

downgrades property rights in the service of its

primary goal by directing local governments to assess

the maximum amount of land to fully protect the

entire shoreline from existing and future impacts. Id.

“Considering science,” moreover, is part of a

legislative body’s standard investigative process. See

Pegram v. Herdrich, 530 U.S. 211, 221 (2000)

(legislative

process

includes

“comprehensive

investigations and judgments of social value”). In

contrast, the nexus and proportionality tests protect

landowners from unconstitutional takings by limiting

exactions to only those necessary to mitigate a

proposed use of the land. Merging these disparate

legal analyses results in incoherence. Cf. Concrete

28

Pipe and Products of Cal., Inc. v. Construction

Laborers Pension Trust for S. Cal., 508 U.S. 602, 628

(1993) (describing “incoherence” wrought by

combining terms describing the burden of proof with

terms describing a standard of review).

2. Second, the “consideration of science” rule

cannot protect property owners against unfair and

unconstitutional burden-shifting. Dolan, 512 U.S. at

384. After considering its incomplete scientific

studies, the City enacted preexisting policy

preferences for the largest possible undevelopable

buffer zone dedications. AR.5824 (buffer widths based

on “city policy, not science-based information”).

Incomplete data sets and inadequate studies—which

are expressly allowed by the Act—are not grounds for

reliable assessments; they are reasons to impeach it.

Watson v. Ft. Worth Bank and Trust, 487 U.S. 977, 996

(1988). Here, the preset buffer zones reflect the City’s

refusal to address the “wide variations in the width of

recommended buffers based on the characteristics of

the particular site involved,” AR.3968, the precise

information needed to address nexus and

proportionality. Far from obviating the need for nexus

and proportionality scrutiny, a policy-based exaction

amplifies the risks of gimmickry and coercion that the

unconstitutional conditions doctrine is intended to

curtail. Dolan, 512 U.S. at 387; Mark W. Cordes, Legal

Limits on Development Exactions: Responding to

Nollan and Dolan, 15 N. Ill. U. L. Rev. 513, 551 (1995)

(the nexus and proportionality tests were intended to

stop the “common municipal practice of using the

development exaction process as a means to capture

already targeted tracts of land without paying just

compensation”).

29

The court below acknowledged that the City

developed the Program to comply with the Act’s

directive to “allocate the burden of addressing

cumulative impacts” to the shoreline environment.

App.7a. The City’s preferred allocation demands “as

much [land] as feasible” from new development

because of its “severely limited” ability to address the

preexisting impacts of historic development (such as

stormwater runoff from public roads, ditches, and

upland development) through prospective regulation.

AR.3969–70. The City recognized that existing homes

might be rendered nonconforming by failure to

mitigate historic and cumulative development

impacts. AR.3969. To protect existing homeowners (at

the expense of new owners/developers), the City

“focus[ed] its buffer efforts” on new uses to force the

owners to replant previously cleared portions of the

waterfront and create new, “intact marine riparian

areas” to protect the shoreline against all existing and

future impacts. AR.3969; AR.2878–79; see also

AR.2883 (“[m]ost of the properties that this [buffer]

would apply to would be those that have lawn up to

the beach”). In sum, the City’s policy requires

landowners seeking new or expanded uses of their

property to remedy environmental harm caused by

public roads, drainage ditches, and also both their

longer-established and future neighbors, a goal flatly

prohibited by this Court for decades. Armstrong, 364

U.S. at 49; Pennsylvania Coal Co. v. Mahon, 260 U.S.

393, 416 (1922) (“[A] strong public desire to improve

the public condition is not enough to warrant

achieving that desire by a shorter cut than the

constitutional way of paying for the change.”).

3. Third, the “consideration of science” rule is so

lax that it permits courts to replace the City’s analysis

30

of the studies with new judicial speculation contrary

to the findings entered by the quasi-judicial agency

below. Compare AR.5824 (Growth Board found that

“[b]uffer widths [were] set by city policy, not sciencebased information.”), with App.36a–37a (Washington

appellate court stating that the City had “relied on the

valid scientific information to establish the shoreline

buffers” and this new conclusion is “fatal”). In this

way, the decision below replaced the nexus and

proportionality test with one that is indistinguishable

from Washington’s exceptionally lax rational basis

standard, which allows courts to “assume the

existence of any necessary state of facts which it can

reasonably conceive in determining whether a

rational relationship exists between the challenged

law and a legitimate state interest.” See Chong Yim v.

City of Seattle, 194 Wash. 2d 651, 675 (2019). Such a

freewheeling standard has no place in the law. See

Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1738 (2020)

(“If judges could add to, remodel, update, or detract

from old statutory terms inspired only by extratextual

sources and our own imaginations, we would risk

amending statutes outside the legislative process

reserved for the people’s representatives.”); see also

Chenery Corp., 318 U.S. at 87 (“The grounds upon

which an administrative order must be judged are

those upon which the record discloses that its action

was based.”).

A rule that looks only to the procedure by which the

government enacts a law demanding a dedication of

property cannot address substantive constitutional

concerns that arise under the Takings Clause and

unconstitutional conditions doctrine. Such a rule,

moreover, would wrongly empower local governments

to veto the Fifth Amendment through a mere

31

ordinance. Frost v. Railroad Comm’n of Cal., 271 U.S.

583, 593–94 (1926) (“It is inconceivable that

guarantees embedded in the Constitution of the

United States may thus [by regulation] be

manipulated out of existence.”). This Court should

grant the petition to enforce the constitutional

limitation that the doctrine places on local

government, requiring courts to evaluate the

government’s stated reasoning for imposing exactions

under the nexus and proportionality standards.

II.

COURTS ARE DIVIDED ON WHETHER AND

HOW NOLLAN AND DOLAN APPLY TO

EXACTIONS MANDATED BY LEGISLATION

The decision below adds a new dimension to a

longstanding and well-documented split among state

and lower federal courts as to whether the nexus and

proportionality test applies to legislatively imposed

permit conditions as well as to conditions placed on an

individual permit applicant. Cal. Bldg. Indus. Ass’n v.

City of San Jose, 577 U.S. 1179 (2016) (Thomas, J.,

concurring in denial of certiorari) (recognizing a

decades-old, nationwide split of authority). It does so

by adopting a rule that substantially changes how

those tests are applied when evaluating a legislative

exaction. As discussed above, the Washington court

held that a local government’s compliance with an

ordinary legislative procedure itself satisfies nexus

and proportionality scrutiny without any further

inquiry to determine if the ordinance demands more

land than is allowed by Nollan and Dolan. App.35a. In

this way, Washington’s “consideration of science” rule

insulates all exactions mandated by local land use and

environmental ordinances from the doctrine of

32

unconstitutional conditions—a result that raises the

same conflicts as a rule that explicitly exempts

legislative

exactions

from

the

nexus

and

proportionality standards.

Like California’s categorical legislative exactions

rule at issue in Sheetz, the Washington rule wrongly

emphasizes the identity of the body that is demanding

property, rather than the substance of its decision and

the nature of the property demand itself. See Common

Sense Alliance v. Growth Mgmt. Hearings Bd., Nos.

72235-2-I & 72236-1-I, 2015 WL 4730204, at *7

(Wash. Ct. App. Aug. 10, 2015) (“An ordinance

requiring a buffer zone is a legislative act, [and]

legislative determinations do not present the same

risk of coercion as adjudicative decisions.”); see also

Sheetz v. Cnty. of El Dorado, 84 Cal. App. 5th 394, 409

(2022), cert. granted (U.S. Sept. 29, 2023) (No. 221047) (“While legislatively mandated fees do present

some danger of improper leveraging, such generally

applicable legislation is subject to the ordinary

restraints of the democratic political process. A city

council that charged extortionate fees for all property

development, unjustifiable by mitigation needs, would

likely face widespread and well-financed opposition at

the next election.”).

That diminished concern for legislative exactions’

coercive effect, or outright dismissal as something to

be remedied in the political realm, conflicts with this

Court’s insistence that a taking may occur “[w]hen the

government conditions the grant of a benefit such as a

permit, license, or registration” regardless of “whether

the government action at issue comes garbed as

regulation.” Cedar Point Nursery v. Hassid, 141 S. Ct.

2063, 2072 (2021); see also Parking Ass’n v. City of

33

Atlanta, 515 U.S. 1116, 1118 (1995) (“A city council

can take property just as well as a planning

commission can.”) (Thomas, J., dissenting from denial

of certiorari); Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 1014 (1992) (“If . . . the uses of

private property were subject to unbridled,

uncompensated qualification under the police power,

the ‘natural tendency of human nature [would be] to

extend the qualification more and more until at last

private

property

disappeared.’”)

(quoting

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415

(1922). Indeed, resort to the political process will not

cure a taking caused by laws that shift the cost of

solving preexisting public burdens onto future

development because future residents have no voice in

local politics. Ronald H. Rosenberg, The Changing

Culture of American Land Use Regulation: Paying for

Growth with Impact Fees, 59 S.M.U. L. Rev. 177, 206,

262 (2006) (“Without having to face the opposition of

future residents who do not currently live or vote in

the locality, [municipalities] find [legislative

exactions] an irresistible policy option.”).

The Washington rule, moreover, directly conflicts

with recent, notable decisions refusing to give

legislative exactions special treatment under the

Constitution. The Ninth Circuit in Ballinger

overruled a past Circuit precedent holding legislative

exactions categorically exempt from the nexus and

proportionality test: “any government action,

including administrative and legislative, that

conditionally grants a benefit, such as a permit, can

supply the basis for an exaction claim rather than a

basic takings claim.” Ballinger, 24 F.4th at 1299

(overruling McClung v. City of Sumner, 548 F.3d 1219

(9th Cir. 2008), in light of Cedar Point, 141 S. Ct. at

34

2022). “What matters for purposes of Nollan and

Dolan is not who imposes an exaction, but what the

exaction does, and the fact that the [dedication] comes

from a city ordinance is irrelevant.” Id. (cleaned up).

Insofar as the Washington court’s decision also relied

on an assumption that a local government’s

compliance with an ordinary legislative process

ensures constitutional results, that assumption

conflicts with the North Carolina Supreme Court

decision in Anderson Creek Partners, L.P. v. County of

Harnett, 382 N.C. 1, 34 (2022). There, the court held

that Nollan and Dolan apply to legislative action that

conditions use of property even when the ordinance

“more likely represent[s] a carefully crafted

determination of need tempered by the political and

legislative process.” Id. This is because the nexus and

proportionality tests are “designed to address the risk

that local governments might use their permitting

power to coerce landowners into relinquishing

property,” id. at 32, and legislative bodies as well as

adjudicative agencies are equally prone to such risks.

Id. at 33–34 (noting that this Court “consistently

describe[s] the ‘unconstitutional conditions’ doctrine

as ‘preventing the government from coercing people

into giving up’ a constitutional right rather than

preventing a particular branch of government from

acting in a particular manner”) (citing Koontz, 570

U.S. at 604, and Dolan, 512 U.S. at 385).

Until this Court resolves the question, “property

owners and local governments are left uncertain about

what legal standard governs legislative ordinances

and whether cities can legislatively impose exactions

that would not pass muster if done administratively.”

CBIA, 577 U.S. at 1179 (Thomas, J., concurring in

denial of certiorari); see also Washington Townhomes,

35

LLC v. Washington Cnty. Water Conservancy Dist.,

388 P.3d 753, 758 n.3 (Utah 2016) (“The difficulty in

answering this question stems in part from the

Supreme Court’s lack of clear guidance.”). Such

uncertainty harms tens of millions of property owners

nationwide, who are regularly compelled to bear

unfair public burdens as a condition of

homeownership. See, e.g., Anderson Creek, 382 N.C. at

43 (the cost of exactions is often passed along to the

purchaser of new homes).

This petition provides the Court with an excellent

opportunity to stem new iterations of a legislative

exactions rule like the one adopted below.

CONCLUSION

The petition for a writ of certiorari should be

granted. Or in the alternative, the Court should

consider holding the petition until Sheetz is decided to

consider whether to grant the petition, vacate the

lower court decision, and remand for further

consideration in light of any judgment in Sheetz that

is contrary to the judgment below.

DATED: October 2023.

36

Respectfully submitted,

RICHARD M. STEPHENS

Stephens & Klinge, LLP

10900 NE 4th St.,

Suite 2300

Bellevue, WA 98004

(425) 453-6206

stephens@sklegal.pro

BRIAN T. HODGES

Counsel of Record

Pacific Legal Foundation

1425 Broadway, #429

Seattle, WA 98122

(916) 419-7111

BHodges@pacificlegal.org

DEBORAH J. LA FETRA

Pacific Legal Foundation

555 Capitol Mall,

Suite 1290

Sacramento, CA 95814

ADITYA DYNAR

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 1000

Arlington, VA 22201

Counsel for Petitioners