All of Bainbridge’s Open Space and NVZ (native vegetation zone) requirements are illegal taxes.
Opinion submitted by Gary Tripp, shoreline homeowner.
On March 3, the state Supreme Court rejected the appeal in the CAPR v King County case. King County’s Critical Areas Ordinance, required rural property owners to keep native vegetation on 50 to 65 percent of their land. The Court of Appeals said: saying the GMA “made me do it” is not an excuse for an illegal tax, saying the threatened Chinook and the ESA “made me do it” is not an excuse, and all open space requirements are illegal taxes unless they are for direct mitigation of use.
Before the City of Bainbridge Island can require individual property owners to provide open space, buffers or NVZ (native vegetation zones), the City must first show there is a deficiency.
Bainbridge has 33% public open space. The City cannot show Bainbridge has a deficiency of Open Space. The City can also not require private property owner to prove there is no need for additional open space. The burden is on the City who is trying to impose an open space requirement/tax, to prove that the open space requirement meets the criteria of the Camas Decision.
Camas Decision requirements In Isla Verde International Holdings v. City of Camas, the Supreme Court ruled that any open space (buffers) that did not meet the following criteria was an illegal forms of taxation and violate RCW 82.02.
Before any open space requirement can be legal :
- there first must be a showing of a deficiency of open space,
- the mitigation must be the direct result of the impact of the specific project,
- the mitigation must be necessary to correct the direct impacts of the project, and
- the mitigation must be proportional to the impacts caused by the project.
For the City of Bainbridge Island to avoid new and expensive ligation, the City must suspend all open space, buffers or NVZ requirements and remove all open space, buffers or NVZ restrictions previously imposed on private property owners.
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