The Department of Ecology has a webpage that outlines the Shoreline Master Program (SMP) development process. One of the many links helps local planners avoid unconstitutional takings of private property with guidance from the Attorney General’s Office. Quoting the DOE web page…
[The AG's] Advisory Memorandum was developed to provide state agencies and local governments with a tool to assist them in the process of evaluating whether proposed regulatory or administrative actions may result in an unconstitutional taking of private property or raise substantive due process concerns.
The failure to fully consider these constitutional limits may result in regulatory activity that has the effect of appropriating private property even though that outcome may not have been intended. If a court concludes that private property has been “taken” by regulatory activity, it will order the payment of just compensation equal to the fair market value of the property that has been taken, together with costs and attorney fees. In other cases, a government regulation may be invalidated if it is found to violate constitutional substantive due process rights.
Please pardon the editorial comment, but “Duh!”
When asked about the legal aspects of rulings made by COBI planners, they often reply that it’s “not my job.” The Attorney General disagrees.
So many lawsuits have resulted that citizens, especially shoreline homeowners, routinely take a land use attorney with them to application meetings with city staff. That necessitates participation by the City Attorney who has apparently advised staff not to say a word unless he is in the room.
Where state agencies or local governments exercise regulatory authority affecting the use of private property, they must be sensitive to the constitutional limits on their authority to regulate private property rights.
On March 3, the Washington Supreme Court refused to hear a challenge of an appeals court decision on July 7, 2008, which overturned part of King County’s critical areas ordinance. The CAO prevented rural property owners from developing up to 65% of their land. This was an unconstitutional taking of private property.
Let’s hope that our city council, mayor or city manager are prepared to insist that our planning department is furnished with the AG’s guidelines, necessary training and management oversight necessary to protect homeowners as they work to revise the City’s Shoreline Master Program.
Under the update SMP requirements, most local governments will require property owners to only have a bulkhead if it is protecting a primary structure but not to protect their property. The WAC allows for the protection of property also.
Does this represent a taking of property and property rights?
Under the SMP Update, in order for property owners to have hard shoreline stabilization approved they must provide a geotechnical report substantiating that a primary structure will be threatened within 3 years if the stabilization is not installed? This involves costly guesswork on the part of a geotechnical engineer or essentially requires an owner to allow property to erode until threat of damage or destruction to the primary structure is imminent.
Does this sound legal?
Replacement of an existing bulkhead has always been approved as a shoreline exemption as repair or maintenance of an existing structure if it is the common method of repair. Under the SMP Update, because of the caveat in the WAC “as long as if does not cause adverse impacts” and the new No Net Loss requirement the in-kind replacement of bulkheads will probably not be exempt or even approved.
Is this legal?
Similar action is being taken against pier repairs and replacements to try and pull them under DOE control based on best guess and inconclusive science.
If DOE is successful in their quest for moratoria by local governments during the SMP update process, isn’t this essentially a moratorium on hard shoreline stabilization and protection making DOE and the local government vulnerable to legal action if damage occurs?
These are questions for a land use attorney. It is important to know that the Evergreen Freedom Foundation has launched a Property Rights Center. It is working with local groups to form a statewide strategy to challenge any illegal takings.
DaveD — the final Jefferson County Draft prepared in part by ESA Adolfson is foggy and convoluted in it’s hard to interpret language, but IT IS CLEAR that the direction they are going with bulkheads is to require removal and restoration of the natural (previously existing) environmental condition in order to do any rebuilding, remodeling or use conversion. Marinas and existing businesses may be saved through variances, but residential owners are gonna have a battle to fight.