Common Sense Alliance has taken its objections to San Juan County’s Critical Area Ordinance to the U.S. Supreme Court.

The group comprised of shoreline property owners has filed a Petition for Certiorari, asking the Supreme Court to review their appeal of the regulations. Appeals presented by CSA and Friends of the San Juan Islands have been reviewed by seven different officials – all of whom have upheld the CAO. The most recent was the Washington State Court of Appeals in Seattle on August 10, 2015.

“The court is very careful about the cases they accept. Many try, but few cases are chosen,” said San Juan County Prosecuting Attorney Randall K. Gaylord.

He is not aware of the U.S. Supreme Court accepting a case from San Juan County in the past. The court receives more than 10,000 requests to review cases each year, with only 1 percent of those actually being reviewed by the court with an attorney present, and an additional 80-90 cases being responded to via formal letter.

According to Gaylord, this case is similar to another case the Supreme Court declined to hear from Jefferson County several years ago. He says the regulations being questioned have already been modified, which essentially negates the benefit of a court ruling. Gaylord says that many citizens have accepted and understand the nature of critical area regulations, recognizing the benefit they provide to the community and the environment.

The case challenges the CAO, which places conservation conditions upon new land-use permits on shoreline properties. The conditions are that the landowner must dedicate a significant portion of their land to allow natural filtration of pollutants and stormwater runoff caused by neighboring inland land uses, including public roads.

CSA claims that the ordinance, adopted in 2012, is subject to scrutiny under the unconstitutional conditions doctrine, which states that the government cannot condition a person’s receipt of a governmental benefit (in this case a permit) on the waiver of a constitutionally protected right.

The CAO requires shoreline property owners seeking a new land-use permit within 200 feet of the shoreline must dedicate a conservation buffer between 20 and 250 feet wide. The buffer is in place to allow 60 to 70 percent of pollutants that can be filtered out of water, originating on and passing through the property, before it reaches the ocean. The county developed a formula to determine how large the conservation buffer will need to be, which it claims is site specific.

CSA argues that the ordinance is in direct violation of the fifth and 14th Amendments of the U.S. Constitution. According to the Fifth Amendment, “‘private property [shall not] be taken for public use without just compensation.” Additionally, 14th Amendment says that no state can “deprive any person of life, liberty, or property, without due process of law.”

Legal representatives for CSA state in their petition to the Supreme Court state that the formula the county has is not accurate and that each property should have site specific testing to determine the actual pollutant load and flow rate through the property.