KAPO wins 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.

The GMA permits local government to adopt sweeping critical area regulations that could eliminate all development and use of property in a critical area.

By contrast, the SMA is supposed to embody a policy of balancing the efficient use of shoreline resources with a property owner’s right to use and enjoy his own property, and recognizes certain rights to develop and use shoreline property (such as the right to a single family residence, shoreline protection and access to the shoreline).

The SMA also requires that local government justify its critical area restrictions by conducting a shoreline inventory to assure the actual need for the regulations.

Nonetheless, in this case, Kitsap County adopted a critical areas ordinance that declared all marine shorelines as potential fish habitat, forcing all shoreline property owners to set aside large portions of their private property as “undisturbed natural vegetation areas” as a condition to obtaining any development permit.

Coming just two years after Washington’s Legislature declared that shorelines could not be deemed critical areas just because they are shorelines, Kitsap County’s ordinance shocked many of its residents (many of whom own homes that are located within the new shoreline buffers).

You see, the problem with the County’s regulation was that it was not adopted based on scientific evidence demonstrating that every inch of the County’s shorelines provided the geographic/ecological conditions necessary for fish habitat (the County admitted that it “was not prepared” to do these sorts of studies).

Instead, the County justified its decision to regulate all shorelines as critical areas on its notion that, at some point in its life, a fish could pass by any given shoreline and should encounter a pristine, undisturbed environment if it does.

The County admitted that its approach took more land than was necessary to protect fish, but explained that its buffers were a precautionary measure that could be fixed at some later date when it actually conducts the studies that it should have done in the first place.

Pacific Legal Foundation represented a property rights group [KAPO] and several property owners, challenging the County’s designation and regulation of all shorelines as critical areas.

The Court of Appeals agreed with PLF and KAPO: if Kitsap County wants to regulate shoreline property, it must follow the more onerous rules of the SMA. It cannot take a short cut or adopt interim regulations under the GMA.

In its published opinion, the Court said…

This action presents an issue our Supreme Court has not yet authoritatively resolved concerning the interaction of the Growth Management Act and the Shoreline Management Act on “critical areas” within “shoreland” regions. While there is no majority of the court for a specific analytic approach to the issue, the outcome of Futurewise v. Western Washington Growth Management Hearings Board, dictates our resolution of this appeal. The decision to require a setback buffer for the entire marine shoreline of Kitsap County is reversed and the matter remanded for consideration under the Shoreline Management Act. [emphasis added]

To learn more, you can download the decision here.

Interviewed by the Kitsap Sun, Hodges said…

County officials first ran into trouble when they declared all shorelines to be “critical areas” without regard to actual shoreline conditions. KAPO and the county commissioners started out agreeing that the 35-foot buffers were adequate pending a shoreline inventory. The commissioners should have stuck to that position and appealed the adverse ruling by the growth hearings board.

They have been caught in a riptide of regulatory requirements and having the interests of property owners, tribes and environmentalists tearing them in each and every direction. Unfortunately, they wound up making the wrong decision when the growth board told them to make their decision based on the GMA.

Lary Coppola, Port Orchard mayor and publisher of the Kitsap Peninsula Buainess Journal, posted the following comment to the article on the Kitsap Sun’s website

This does not surprise me at all. I was a member of the Kitsap County Planning Commission when the CAO was rammed down our throats by the County.

The DCD Director at the time ignored numerous reasonable questions about “Best Available Science” and why expanded buffers were necessary when no new science had been brought forward to justify them. The County also ignored several other issues brought up by planning commission members. For example: If a wetland buffer was determined under the CAO to be 150 feet, but a county road intersected the buffer at 100 feet, did the buffer cross the road or not? And if so, since the road negated the impact of the buffer, did this mean the county was in violation of its own ordinance or not? And if so, was it required to move the road?

Those were real-life examples of existing situations at the time. However, the DCD Director was simply focused on meeting a deadline to get the ordinance passed – in spite of the fact the planning commissioners had not received anything even close to answers to their questions.

Without going into a lot of boring detail about what and why, suffice to say, the majority of the Planning Commission – in a 6-3 vote – voted against adoption of the CAO as written, saying it needed more work and warning of exactly what has happened. Yet Commissioners Chris Endresen and current Bremerton Mayoral Candidate Patty Lent voted for this ordinance anyway, while Commissioner Jan Angel voted against it.

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