DENNIS REYNOLDS LAW OFFICE
200 Winslow Way W
Re: COBI Shoreline Master Program Next Steps
I was scheduled to speak at a community forum tonight, Tuesday, July 22, 2014, put together by Gary Tripp, Bainbridge Island Defense Fund. I have now been asked not to speak. The purpose of this memo is to set forth some thoughts that may be helpful to the Bainbridge Shoreline Homeowners (“BSHO”).1
I am concerned that emotion may be unduly capturing a few, who are obsessing on a single approach based on which group can be the toughest. The affected citizens should be angry and upset, but now is the time to carefully look at all options. As they said in Animal House, “we got to get these guys.” A broad perspective is needed.
To come up with options, I have relied on my 39 years’ experience with shoreline regulatory matters, plus the experience of a trained attorney/ mediatorI employ who deals with land use and regulatory disputes, Ms. Piper Thornburgh. My firm is the only one in the State of Washington whose owner, Dennis Reynolds, worked for State agencies who have input into SMPs and the Office of Attorney General.
The AG is counsel for the State of Washington Department of Ecology in all litigation involvingSMPs. I was co-counsel in litigation which struck down the “SMA Rules” for revising SMPs. I helped negotiate and helped draft the current guidelines for revising SMPs which replaced the SMA Rules. I have drafted SMPs for some municipalities, citizen groups and trade associations.
To my knowledge, I have handled more appeals before the Shoreline Hearings Board than any attorney presently in private practice. I have contested SMPs and their validity before the Growth Management Hearings Boards and the courts. I have on occasion defended reasonable SMPs attacked by environmental groups or Indian Tribes, working with the Office of Attorney General.
(1 The BSHO has separately posted a Power Point presentation which outlines the Shoreline Management Act (“SMA”), the process for appeal of shoreline management programs (SMPs) and the standards for review on appeal.)
I also struck down the Bainbridge Island shoreline moratorium in the Washington State Supreme Court. Our clients were awarded approximately $76,000 in attorney fees and cost in that litigation. Briefly, there are several, not mutually exclusive, options:
(1) Do nothing.
(2) Appeal the COBI Shoreline Master Program (“SMP”) once adopted. The appeal goes to the Growth Management Hearings Board, Central Board, Seattle (“GMHB”). The appeal must be filed within sixty (60) days of the notice of publication of adoption of the SMP. The appeal is “on the record;” that is, no new testimony is taken. The Board primarily reviews whether the SMP is consistent with provisions of the SMP and the State Guidelines, WAC 173-26; it cannot address constitutional issues. An appeal goes to the superior court, which has jurisdiction to address constitutional questions. There is a procedure to skip the superior court and go directly to the Court of Appeals.
(3) Do nothing for now, but consider appealing if a permit to redevelop your land is denied. This is called an “as applied” challenge. Typically, in an “as applied” challenge, the property owner contends the restrictions are excessive because (a) neither directly related to a need to protect the environment and/or (b) disproportionate to any perceived harm. In an “as applied” challenge, the burden is on government to justify its actions, that is, to show “nexus” between a perceived harm and the project proposed. In this type of litigation, damages and attorney fees can be awarded, as well as a declaration invalidating the project decision.
(4) Property owners can organize and write letters to the County Assessor requesting a reduction in taxes based upon the new restrictions. Under the SMA, the Assessor must consider restrictions as affecting the fair market value of the property: “The restrictions imposed by this chapter shall be considered by the county assessor in establishing the fair market value of the property.” RCW 90.58.290. (Emphasis Supplied). Exercise of this option could put pressure on the City to negotiate.
(5) If there is no relief provided by the County Assessor, some of our client groups in other jurisdictions are considering filing a class action for a regulatory taking, seeking money damages.
Another option is litigation of the nature and type the Bainbridge Defense Fund intends to file. In that matter, Richard Stephens with the Groen/Stephens law firm is representing BDF. I know Richard; he is a very capable attorney. According to Mr. Tripp, BDF is considering filing what is called a “direct challenge” contesting “on the face” the constitutionality of various provisions of the SMP.
This direct challenge is anticipated to take four to five years if it goes to the State Supreme Court, and will be very expensive to pursue. The “direct challenge” is a good vehicle to get the City and the Department of Ecology’s attention in my opinion. It could force the City and Department of Ecology to act more intelligently and approve a balanced SMP, if an appeal is filed to the GMHB. The shoreline property owners must understand that there are opportunities to still discuss changes to the SMP with the Department of Ecology.
My firm is handling a challenge to the SMP adopted for Jefferson County. Presently the appeal to the GMHB has been stayed, while the parties discuss settlement. In that proceeding, the citizens have prepared their own version of the SMP to use as a settlement document. We should know in the next month or so how serious Ecology and the County are in terms of working with the affected shoreline owners to change sections of the challenged SMP.
On Bainbridge Island, there is a split on the City Council and, it appears, there is an attitude to re-look at the SMP. An appeal with ensuing settlement discussions is a vehicle to allow the City and the State of Washington Department of Ecology to back down and work out a more balanced SMP. This would avoid protracted litigation and expense without the need to go through piecemeal revisions to the COBI SMP over time.
An appeal is much less expensive than all out litigation. If negotiations ensue, the appellants should retain a top lobbyist with good connections to the Director of the Department of Ecology and the Governors’ Office to ensure policy-makers with the power to make choices are involved, not just the staff who recommended the current unacceptable version of the COBI SMP.
If my firm is chosen to file an appeal, we will associate Mr. Aaron Laing, a partner with the Schwabe, Williamson and Wyatt Law Firm in Seattle. Mr. Laing is a member of the City of Bellevue Planning Commission. Bellevue appears to be holding up against the Department of Ecology in its SMP review. I hope these comments are helpful.
Very truly yours,
DENNIS D. REYNOLDS LAW OFFICE
Dennis D. Reynolds