## Facts

- Loren and Dianna Jensen owned approximately three acres of land in Everett, Washington.
- The Jensens built a home on the property near the top of a ravine.
- The City of Everett had designated the ravine as an “environmentally sensitive area” under a city ordinance.
- The ordinance was adopted under authority provided by Washington’s Growth Management Act (GMA).
- The Jensens twice sought permission from the City to cut trees on their property to create a view of Puget Sound from their home.
- The City denied both requests because the proposed cutting would violate the environmentally sensitive area ordinance.
- After receiving legal advice that the Washington Forest Practices Act (FPA) allowed the tree cutting, the Jensens cleared approximately two acres of land before the City could post a stop-work notice.
- The City notified the Jensens that they were required to carry out a short-term and long-term mitigation plan because the clearing violated the ordinance.
- The Jensens refused to complete the long-term mitigation work.
- The City issued a notice of violation.
- A City hearing examiner concluded the Jensens violated the ordinance and ordered them to complete mitigation measures.
- The Jensens sued the City in district court to prevent enforcement of the hearing examiner’s order, arguing the city ordinance was preempted by the FPA.
- The trial court dismissed the lawsuit, and the Jensens appealed.

## Issues

1. Whether the Washington Forest Practices Act preempts a City of Everett ordinance, adopted under the Growth Management Act, that regulates tree cutting in an area the City designated as environmentally sensitive.
2. Whether the City could enforce mitigation requirements and an enforcement order against the Jensens for unauthorized clearing within the designated environmentally sensitive area.

## Decision

- The Washington Court of Appeals affirmed the trial court’s dismissal of the Jensens’ lawsuit.
- The court rejected the Jensens’ claim that the FPA preempted the City’s environmentally sensitive area ordinance as applied to their tree clearing.
- The court upheld the City’s ability to enforce the ordinance through mitigation requirements following the violation.

## Legal Principles

- State law preempts local law only when the Legislature clearly intends to displace local regulation, either by express language or by conflict that makes concurrent regulation impossible.
- The Forest Practices Act’s regulation of forest practices does not automatically bar local land-use regulation adopted under separate statutory authority.
- The Growth Management Act authorizes (and, where applicable, requires) local governments to adopt and enforce development regulations protecting designated sensitive or critical areas.
- A local ordinance is not invalid merely because it affects conduct also addressed by a state regulatory program; preemption turns on the scope of the state law and whether the local rule conflicts with it.
- When a city acts under GMA authority to protect environmentally sensitive land features, it may enforce compliance measures, including mitigation, for unauthorized clearing.

## Conclusion

The Court of Appeals held that Everett’s GMA-based environmentally sensitive area ordinance was not preempted by the Forest Practices Act in this dispute and affirmed dismissal of the Jensens’ suit, leaving in place the City’s enforcement action and mitigation requirements for the unauthorized tree clearing.


Jensen v. City of Everett, 109 Wash. App. 1049 (2001)