Arbitrary land use regulation has federal and state constitution civil rights and property rights implications. The Washington State Attorney General stated the following in an advisory memorandum to state and local agencies…
The public problem must be proven. In assessing whether a regulation has exceeded substantive due process limitations and should be invalidated, the court considers three questions.
First, is the regulation aimed at achieving a legitimate public purpose? There must be a public problem or “evil” that needs to be remedied for there to be a legitimate public purpose. Second, is the method used in the regulation reasonably necessary to achieve the public purpose? The regulation must tend to solve the public problem. Third, is the regulation unduly oppressive on the landowner?
Failing to consider and address each of these questions may lead to a substantive due process violation.
From the Advisory Memorandum and Recommended Process for Evaluating Proposed Regulatory or Administrative Actions to Avoid Unconstitutional Takings of Private Property, December 2006. Read more here.
The questions our Planning Commissioners and City Council must ask are simple.
What is the public problem that must be solved with increased native vegetation buffers?
…by making it difficult or impossible build or repair a bulkhead?
…by banning docks and floats that conform to design specifications prepared by the Army Corps of Engineers, or
… by dramatically increasing conservancy designations for lawfully developed family homes?
Are the proposed regulations reasonably necessary to solve the public problem?
Is the regulation unduly oppressive on the landowner?
For example, if bulkheads are only allowed when a home or appurtenant structure is threatened, the landowner may be required to watch a great deal of his property to be washed into Puget Sound, ostensibly for a public good. This seems unduly oppressive since the WA Dept. of Fish & Wildlife currently recommends an alternative process — placing sand and gravel on the beach in front of the bulkhead.
If Bainbridge Island adopts land use regulations as part of its Shoreline Master Program that are unduly oppressive, unnecessary to solve a public problem, or implemented to solve unproven problems, expensive legal battles will follow. If the attorney general’s office is correct, property owners will prevail, but at what cost to us all?
One more comment. I have been selling waterfront property only for the past 24 years. One of the issues often discussed is “can someone walk across my beach.” While it is not a matter of law, it could be a matter of great concern. My understanding is that you can walk across, you just can’t stop and have a picnic. Now, I do not want this to be come an issue and here’s why: there are lots of folks who badly want to take away ownership of beaches and put them into public beaches. I don’t want this for private properties or for commercial tidelands. We are unique in tideland ownership, but I believe that rocking the boat is the totally wrong approach. We won’t win. We will only lose everything.
Does not Don Floras excellent November 2009 report Evidence of Near-Zero Habitat Harm From Nearshore Development prove that shoreline property owners are not causing any harm to Puget Sound and the fish? We suggest that BSH feature this and other scientific reports on this web site to refute COBI’s studies that we property owners should have bigger buffers, more restrictions on bulkheads and slope retaining walls to hold up our homes, etc.. Many have pointed to street runoffs, other storm runoffs, leaking septics and inadequate sewer treatment plants, industrial pollution, overfishing, dams and culverts block spawning, animals too close to Puget Sound, etc. as the main villains. We need to showcase these studies since that refutes the entire argument for stricter SMP rules for us owning shoreline properties. This wil not solve the Puget Sound problem.
Many of Dr. Fora’s articles have been published on this blog, furnished to the City, and placed “on the record”. They can be found by selecting the “Real Science” category or simply searching for “Don Flora”.
The “many” you refer to include the Puget Sound Partnership who have clearly stated that stormwater runoff is the #1 threat to the health of Puget Sound. Unfortunately, the consultants hired by COBI have consistently provided exactly what the planners and DOE want to see… justification for ever increasing buffers and the forced erosion of shoreline properties to “feed” the beach.
To date, nobody at the City has given a convincing answer to one simple question. What problem are we trying to solve and are there reasonable alternatives?