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A procedure in Washington state’s Court of Appeals is under review because it bars citizens who petition the government in certain cases from presenting evidence, then rejects their petitions for lack of evidence.

The Pacific Legal Foundation is challenging the administrative process required of landowners when they protest regulations regarding the state’s 28,000 miles of protected shoreline.

A case must be submitted to the Growth Management Hearings Board, “an administrative agency that lacks the authority to decide constitutional issues,” PLF explained.

It was a 2014 decision by the city of Bainbridge Island — a half-hour ferry-boat ride from Seattle — that set off the challenge.

The city adopted a very “aggressive shoreline protection ordinance” that, among other things, forbids homeowners from gardening without permit approval and generally restricting “all human activity” within 200 feet of a shoreline.

Several landowners challenged it as an unconstitutional restriction on their rights. And when they went to the mandatory board review process, its members upheld the ordinance without accepting evidence on the constitutional issues.

Then, when the landowners went to superior court, the city told the judge that since the case technically was on appeal from the board, there was no provision to allow the landowners to present any evidence.

The landowners, who had organized as the Preserve Responsible Shoreline Management group, “called the city out on its nonsense, pointing out that every citizen has a right to put on evidence necessary to prove the elements of a constitutional claim when that claim is properly raised for the first time before the court that has exclusive and original jurisdiction,” PFL explained.

The trial court simply refused, and an immediate appeal followed.

“Because trying its constitutional case without the ability to offer the evidence required would be futile.”

PLF said the appeals court will review the dispute later this year.

The Bainbridge rule demanded “enhancement and restoration” work that would require landowners to dedicate a perpetual conservation easement. They also had to adopt the city’s vegetation standards. There’s also a demand for warrantless searches of private property, submitting a request whenever there’s “human activity” near shorelines.

“The city imposes these conditions automatically, without any regard to the nexus and proportionality requirements necessary to avoid uncompensated takings under the Fifth Amendment. The automatic imposition of these permit conditions also violates Washington state law that requires a city to show that its mitigation standards are necessary to protect existing shoreline ecological functions,” PLF said.

The organization’s filing explained: “This motion to modify asks whether a citizen has a right to put on evidence necessary to prove the elements of a constitutional claim where a statute requires that constitutional claims be raised for the first time alongside an administrative appeal. The answer is yes for three reasons: First, binding precedent from the U.S. Supreme Court requires that PRSM put on proof of certain elements of its facial constitutional claims. Second, due process guarantees a right to present evidence necessary to seek redress of harm. And third, the legislature cannot limit the superior court’s jurisdiction over constitutional claims, which includes the right to hear evidence.”

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