Property owners win appeal of Kitsap County critical areas ordinance.

from Brian T. Hodges, Managing Attorney, Pacific Legal Foundation

We just received a published Court of Appeals’ decision in Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board. This case involved the intersection of two state statutes, the Shoreline Management Act (SMA) and the Growth Management Act (GMA), chapters 90.58 and 36.70A RCW.

Both statutes direct local government to adopt development regulations that protect critical areas, but in 2003, Legislature amended the GMA to state that the “protection of critical areas … within shorelines of the state shall be accomplished only through the local government’s shoreline master program.” Engrossed Substitute H.B. 1933, 58th Leg., Reg. Sess. § 1(1) (Wash. 2003) (codified at RCW 36.70A.480(3)(a)).

This statutory turf war has actual impacts on the ground for property owners.

Judge rules against activists in San Juan County.

There are many players in the world of land use planning, regulation and governance. On one side you have property owners. On the other you have a wide range of people and groups who think they know better than anyone else how the property owner’s land should be used. These groups — including activists, politicians, neighbors, local planners, state bureaucrats, scientists, engineers, and other “experts” — often disagree, but they always have an opinion.

On August 31, a Superior Court Judge in San Juan County overturned a ruling by the state’s Shoreline Hearings Board that overturned San Juan County’s issuance of a Shoreline Substantial Development Permit to build a private dock. In his ruling, Judge John Linde said that the “SHB decision overturning the permit issued by the County and disregarding the mitigation plan developed in conjunction with WDFW was arbitrary and capricious and failed to properly interpret and apply the law.”

What happens if your home is declared nonconforming?

Last summer, a proposed Critical Areas Ordinance would have declared almost every shoreline home on Bainbridge Island as “nonconforming”. We were advised by attorney Dennis Reynolds that this was a “highly disfavored status”. Specifically, he said the following…

Planners must avoid unconstitutional taking of private property.

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.

Shoreline moratorium lawsuit to be filed.

The following is an April 22 memo to the mayor and city council from Gary Tripp, Director, Bainbridge Defense Fund:

Bainbridge Defense Fund (a Washington non-profit) is assisting six plaintiffs, who will file a class action suit in Superior Court of the State of Washington against the City of Bainbridge Island for monetary damages arising from the Shoreline Moratorium Ordinances Nos. 2001-45, 2002-29, 2003-13, and 2003-34.

The plaintiffs will claim the Shoreline Moratorium prevented all waterfront property owners from constructing, or even submitting an application to construct over-water structures such as docks or piers or single-family protective bulkheads, access stairs, or other normal appurtenances, even exempt structures.

Whatcom County loses challenge to Shoreline Master Plan

The Building Industry Association of Whatcom County (BIAWC) won a major victory April 14, before Skagit County Superior Court in the challenge to the County’s adoption of a new Shoreline Management Plan (SMP). Superior Court Judge Michael Rickert ruled that the Whatcom County Council majority violated the County Charter by rushing through approval of the SMP last August by Resolution instead of by a formal Ordinance. The failure to use the Ordinance procedure avoided public scrutiny through a reopening of the public process and foreclosed the normal right of the Executive to veto Council action. BIAWC intervened in this action, and joined plaintiffs Citizens for Rational Shoreline Planning and Ron Jepson in this case.

At the time the resolution was passed, BIAWC’s Governmental Affairs Director Mary Dickinson specifically told the County Council that adopting the SMP by Resolution violated the County Charter, but the County Council majority ignored this advice and rushed to adopt the SMP. She reminded the Council that language in the County Charter specifically states that resolutions do not have force in law. Before ruling in BIAWC’s favor, Judge Rickert questioned the County during the argument as to why he should allow Whatcom County an exemption from the rules, when the County comes before the Court often to demand strict application of County rules from its citizens.

Whatcom County builders challenge County’s SMP

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.