by Ken Sethney, Chair, Bainbridge Shoreline Homeowners
It is often said that COBI Planners — or Dept. of Ecology bureaucrats — or some evil, shadow government masterminds — want all shoreline properties to erode and all “nonconforming” homes to fall into the water.
That’s why they want to declare your home to be “nonconforming”. That’s why they don’t want you to build or repair a bulkhead. That’s why they don’t want you to build a dock, or plant a lawn or have garden with anything in it but “native plants”. Be afraid, be very afraid!
Sounds a bit paranoid, doesn’t it?
That’s what we thought until we received a copy of a presentation on nonconforming uses and structures delivered to local planners and consultants by Betty Renkor, Senior Shorelines Planner, Department of Ecology.
Please use the slide viewer below to review Ms. Renkor’s presentation. In explaining “nonconforming basics” slide #8 says that the long term goal is to “eliminate” the nonconforming use. The slide also says that in reality many nonconforming uses exist for a long time, but the intent is clear.
The next slide clarifies things a bit and suggests that we should at least be concerned. Nonconforming uses are disfavored, they should be restricted so they are phased out, and if nonconforming uses aren’t phased out they will invite the piecemeal granting of variances.
The Shoreline Management Act is silent on nonconforming uses, so in slide #10 Ms. Renkor points to the Washington Administrative Code (WAC 173-26-191(2)(a)(iii)(A)) which says in part…
While the master program is a comprehensive use regulation applicable to all land and water areas within the jurisdiction described in the act, its effect is generally on future development and changes in land use. Local government may find it necessary to regulate existing uses to avoid severe harm to public health and safety or the environment and in doing so should be cognizant of constitutional and other legal limitations on the regulation of private property. In some circumstances existing uses and properties may become nonconforming with regard to the regulations and master programs should include provisions to address these situations in a manner consistent with achievement of the policy of the act and consistent with constitutional and other legal limitations.
She then moves on to WAC 173-27-080, which deals with “nonconforming use and development standards.” Yes, it’s OK to maintain and repair a nonconforming structure. Yes, it’s OK to expand a single family residence with certain limitations. Yes, a variance is required.
What happens if a nonconforming structure is damaged (think asteroids and forest fires, or earthquakes and tsunamis). Up to 75% may be rebuilt if an application is filed within 6 months and work is completed within two years. If not, the right to rebuild expires and any future use must be conforming.
Conclusions? In a recent email, Ms. Renkor explained that…
My main objective in giving the presentation was to alert the local planners and consultants that they should include regulations about nonconforming uses and structures in their Shoreline Master Programs.
If SMPs do not address nonconforming uses and structures, the regulations in WAC 173-27-080, “Nonconforming use and development standards” will apply. The SMP Guidelines only state that SMPs should include provisions to address nonconforming uses and properties.
I also wanted to provide a framework, so I presented information about Shorelines Hearings Board cases and court cases, along with general information from land use planning practice.
Evil shadow government conspiring to cause your home to fall into Puget Sound? No, but the intention of state law over time is to eliminate nonconforming uses. Some, but not very many, shoreline homeowners agree with this intention. The rest of us should stop blaming local planners and work to encourage reasonable language in our city’s Shoreline Management Master Plan (SMP).
By the way, your shoreline home is currently “nonconforming” if any part of it is within 50 feet of the ordinary high water line. That is a no-touch native vegetation zone. When our city’s Shoreline Management Master Plan is updated, the native vegetation zone is likely to be expanded to as much as 200 feet.
If you own an undeveloped lot, it is highly unlikely that you will be given a variance to build within this zone unless there are some extraordinary conditions. Talk to a city planner, architect, builder or land use attorney to learn more.
One line here that concerned me was about being a plan being “not consistent with community vision.” This is a delicate issue on our Island. We have a community values survey, but to my knowledge, there has been no public VOTE on these values. As such, our values are hearsay, rather than fact.
Just whose vision will take precedence? Will it be a city employee who approves a plan? Will that employee be over-ridden by the employee in charge of shoreline management? Will an Island decision be over-ridden by a County or State employee?
If there is one message to this article, it is that your organization needs to play an active role in the updating of the Shoreline Management Plan for our Island.
We had to search a bit, but the phrase “not consistent with community vision” appears in slide 7. A good catch and a welcome observation. Thank you, Dee. We couldn’t agree more. Shoreline homeowners must be a part of the planning process.
Thanks to Brian Berdan and Jon Quitslund for their comments on this article. It has been rewritten to answer many of their concerns.