The Building Industry Association of Whatcom County (BIAWC) has filed a prehearing brief before the Western Washington Growth Management Hearings Board (WWGMHB) in the challenge to the County’s adoption of a new Shoreline Management Plan (SMP). The County’s new SMP applies new land use regulations to all unincorporated land touching marine waters, larger rivers, and major lakes, including Lake Whatcom and Lake Samish.
The County plan generally mandates a 100-150 foot buffer and setback for all waterfront property requiring property owners applying for almost any permit to permanently revegetate the buffer area with native plantings.
In other words, any waterfront property owner, including existing homes, seeking permits even for minor remodeling projects will be faced with the County’s demand to take that buffer area, without compensation, for native plantings to benefit the public. The County seeks to impose this onerous requirement on all properties even those with existing patios and landscaping in the buffer area whenever any permits are sought.
BIAWC is alleging that the County violated state law by (1) intentionally foreclosing public comment and input before making a rash decision in August of 2008 to enact a new SMP, and (2) designating all County shorelines as environmentally critical areas without regard to current shoreline conditions, including existing development.
Whatcom County commenced a comprehensive update of its SMP in approximately August of 2004. The County’s public process culminated in the adoption of an SMP via ordinance 2007-017 on February 27, 2007, which would not take effect until approved by the Washington State Department of Ecology. Ecology subsequently made its approval of the SMP contingent upon the County’s adoption of 13 pages of substantive amendments.
On August 5, 2008, rather than making these amendments subject to public scrutiny and reopening the public process, the County Council made a hasty decision to adopt Ecology’s substantive amendments wholesale by Resolution, and even foreclosed the normal right of the Executive to veto Council action.
In a brief filed before the WWGMHB, BIAWC’s attorneys argued that the Board should not “condone the County’s strong-armed tactic to deny the public any opportunity whatsoever to review and comment upon Ecology’s requested substantive changes.”
BIAWC’s attorney Charlie Klinge said: “By accepting no public input on Ecology’s substantive changes, Whatcom County clearly violated state law which requires the County to ‘not only invite but actively encourage participation by all persons and private groups and entities showing an interest.’”
BIAWC had actively participated in the earlier process culminating in adoption of the SMP, but then BIAWC and the rest of the interested public was completely foreclosed from any input on the changes. Instead, Whatcom County rushed through the approval in one meeting based on bad legal advice that such lightning speed was necessary to protect shorelines.
BIAWC also challenged the County’s decision to designate all shorelines in the County as environmentally critical areas without regard to existing shoreline conditions, including existing development. State law requires the County to determine which properties actually have critical habitat, including consideration of existing development.
BIAWC’s attorneys argued that the County’s decision to simply designate all shorelines as environmentally critical areas was “an indiscriminate short cut” designed to avoid the necessary analysis required by state law and to further limit development.
BIAWC’s attorney Charles A. Klinge said: “The County plan is a pure land grab designed to prevent property owners from using 100-150 foot buffer area next to the water. The County intends to impose these restrictions on new projects and on existing homes and businesses when any minor improvement is made. Thus, the County will take the 100-150 foot buffer when waterfront property owners seek permits for minor home additions or any other improvement.
The intention of the County, with the backing of the State Department of Ecology, is to reverse development and turn all shorelines back to the way they were before people settled the County. The County and the Department created this plan in disregard of the specific policies in state law protecting the property rights of waterfront land owners, and in disregard of Constitutionally protected property rights.
Nevertheless, if not stopped at this stage, the County and Ecology intend to forge ahead and make each waterfront property owner fight an individual battle to save their land which, of course, will be expensive and governed by the stacked rules being adopted now.”
When the Whatcom County SMP was approved by the DOE, state officials hailed it as a model for the state. It is highly likely that it will be a model for litigation by affected property owners and businesses affected by shoreline regulations, but ignored in the planning process.
Note: The lawsuit in play here has been filed by Citizens For Rational Shoreline Planning, (Case #08-2-0031), Western Washington Growth Management Hearings Board. BIAWC has intervenor status, which means we have obtained the Board’s permission to enter into a lawsuit which has already started between other parties, and we have filed a complaint stating the basis for a claim in the existing lawsuit.
0 Responses to “Whatcom County builders challenge County’s SMP”