by Karl Duff
James Wilson, signer of the Declaration of Independence and United States Supreme Court Justice wrote in 1790: “Law and liberty cannot rationally become the objectives of our love, unless they first become the objectives of our knowledge.”
Events demonstrate that civic consciousness and defense of our Constitutional protections are being dulled with the result that lawlessness in government is increasing. Let’s take a look at an example:
Article I, Section 16 of the Washington State Constitution says that “… No private property shall be taken or damaged for public or private use without just compensation having been first made…” Yet the state’s Department of Ecology (DOE) is now on record that their long term goal is to “eliminate” all “non-conforming” structures and uses throughout the State.
Since a Planning Commission member has recently estimated that as much as 70% of Kitsap County’s private property could become non-conforming under various environmental ordinances, you might well ask just what ‘non-conforming’ means, and could your property be affected?
One instance of a non-conformance occurs when the county establishes buffer zones along saltwater and freshwater shorelines. The latest Kitsap county Critical Area Ordinance (CAO) set these buffers at 100 feet for rural areas. This means that if your house encroaches on this buffer it is non-conforming and likely, over time, to be subject to increasingly stringent repair, replacement and insurance policies that would become so difficult or impossible to comply with that you will eventually be forced to return the land to its natural pristine condition. You would receive no compensation.
And the crowning insult is that the state has virtually no scientific evidence to show that such buffer zones provide any meaningful protection to the affected environment.
In the local area, the Kitsap Alliance of Property Owners (KAPO) has been virtually alone in its fight to protect the constitutional rights of property owners against this kind of unwarranted government intrusion. In a lawsuit extending over three years, KAPO fought the county’s efforts to impose these arbitrary buffers in their Critical Areas Ordinance (CAO), and was recently victorious in the state court of appeals.
This victory didn’t come cheaply or easily. It cost KAPO approximately $125,000 to bring the case to court -– money from its own member’s pockets. Additional costs borne by a Seattle law firm and the Pacific Legal Foundation added over another $250,000 in costs. And then there were the tax dollars Kitsap County spent in their unsuccessful attempt to defend their case. As one of the plaintiffs, Ron Ross, said after the appeals court decision: “It is bizarre that we have to fight our own government to do the right thing.”
The question is why? One of the reasons is that environmental activist organizations such as Futurewise have managed to insert themselves directly into county governance. In the cited case, Futurewise worked hand-in-glove with attorney Lisa Nickol of the Kitsap prosecutor’s office to structure the county’s defense. As events showed, this proved to be an extremely unfortunate partnership that subjected the county to some really bad legal advice and incurred major costs at a time of shrinking revenues.
But a more basic question is why would your government attempt to energetically exploit your property, presumably for other people’s benefit, and refuse to pay you for it? Part of the answer lays in observations by French economist and statesman Frederic Bastiat, who nearly 200 years ago, in his classic book The Law, observed that government produces nothing independent from the resources and labor it diverts from private use. He referred to this as “legal plunder”. He said that each of us has a natural right—from God—to defend his person, his liberty, and his property, and that the law cannot rationally be used for anything except for protecting the rights of everyone.
Today, except for labels, little has changed. In the name of environmental protection and the “common good” government is stripping people of their ability to use their land, not merely for business or profit, but of even reasonable ability to build and live on it.
But there is hope that the law upon which Bastiat rested his case may prevail. Washington courts have now overturned a series of decisions where local governments working with Futurewise and other extremist groups have attempted to impose unconstitutional and illegal actions onto property owners -– including the Kitsap County Critical Areas Ordinance.
However, these are only small victories in a larger battle. Having been told that they cannot use the Critical Areas Ordinance to establish shoreline buffers, Kitsap County is initiating a process to revise its shoreline master plan. It can only be hoped that they will not again be tempted to re- impose excessive buffer setbacks via this avenue.
The fact that the Department of Ecology, who must approve the SMP plans, has already asked for 150 foot and larger buffers in other counties is not an encouraging sign. Plus, Futurewise has also publicly declared this is their goal in Kitsap County!
KAPO has been working with reputable scientists who understand the relationship between shorelines and marine ecology — and has already met with county officials to ask that their extensive research and knowledge of the subject be integrated into the county’s shoreline planning process. KAPO will continue to fight for what is right and scientifically defensible, in the courts if necessary.
But KAPO cannot do this alone. Unless citizens awaken and act responsibly to constrain their government from unreasonable actions, their right to liberty and property will continue to be plundered by a government who thinks it knows how to run our lives better than we do.