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Bainbridge Shoreline Homeowners has filed an amicus brief supporting a petition by the Kitsap Alliance of Property Owners asking the Washington State Supreme Court to review a Court of Appeals’ decision, in the matter of Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board (Div. II Nos. 38017-0-II and 38087-1-II, Jan. 4, 2011). The brief was filed jointly with the Common Sense Alliance and Olympic Stewardship Foundation.
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Brief Factual Background
In 2005, Kitsap County amended its critical areas ordinance to require that every marine shoreline landowner set aside significant portions of his or her property as “undisturbed natural vegetation areas” to provide buffers for fish habitat.
The fish habitat buffers are automatically imposed as a mandatory condition on any new application for shoreline development. The size of the buffer is determined solely on the property’s classification: urban areas are subject to 50-foot buffers, while rural and semi-rural areas are subject to a 100-foot buffer (based on 2007 revisions to its CAO).
KAPO opposed the marine shoreline buffers, arguing that the buffers failed to comply with the Growth Management Act’s “best available science” requirement and violated the constitutional essential nexus and rough proportionality tests, as incorporated by RCW 82.02.020.
Specifically, KAPO argued that Kitsap County’s decision to impose the exact same buffer restrictions on fully-developed lots (e.g., residential communities, commercial properties) as it imposed on undeveloped parcels was unsupported by science in the record, which only addressed the functions and values that can exist on undeveloped property.
Despite science recognizing that fully-developed residential lots have different functions and values than undeveloped lots, and recommending a site-specific approach to regulating marine shorelines, the Board concluded that the GMA required the County to err on the side of imposing prescriptive buffers that are larger than necessary. This conclusion was upheld by the trial court and Division II of the Court of Appeals.
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