Testimony on Engrossed House Bill 1653

by  Bob Benze (Representing KAPO)

Given to Senate Environment, Water and Energy Committee  

Chairman Rockefeller and distinguished members:

My name is Bob Benze and I am here today representing the Kitsap Alliance of Property Owners, one of the largest and oldest property rights organizations in the State of Washington. 

There is a fundamental question that needs to be answered when considering legislation such as Engrossed House Bill 1653.  That is: Who actually owns the shoreline property in the State of Washington? Is it the state? Is it the private property owner? Or is it some combination thereof?”

 I contend that both the federal and the state constitutions are clear on this – that the ownership of private property, with minimal government interference, is a fundamental right of the people.  Indeed, the Bill of Rights, where the right to property is guaranteed, was intended to protect citizens and their property from abuse by an overzealous government

Here in Washington State, overzealous may be an understatement when it comes to property rights.  Over time, a citizen’s right to use his property as he desires has been steadily eroded by legislation – which appears to imply that the government believes it owns significant attributes of our private land. 

Much of this government control of private property is supposedly intended to protect the environment.  Smart growth legislation desires to preserve large rural areas, forcing population into the cities.  A more recent thrust at both the state and federal level is to stop development of shorelines and start on the path to restore them to more “natural” conditions.  All impose the government’s will on private land use. 

A 2007 Department of Ecology briefing on Nonconforming Uses and Structures (included for the record) leaves little doubt about the government’s intentions in this regard.  But Ecology isn’t alone in spearheading aggressive initiatives to restore shorelines – these are rampant, ranging from the federally funded Nearshore Restoration Project, to the Puget Sound Partnership’s initiatives, to the Puget Sound Regional Council’s Vision 2040. 

My organization vigorously opposes this government overreach, recognizing that private citizens are far better motivated and equipped to take care of their property and its environment than is the government. 

Which brings me to the present dilemma.  The Growth Management Act and the Shorelines Management Act have both been applied to shorelines, with an unprecedented impact on property owners.  In Kitsap County, the GMA was used to establish 100 ft. buffers, declaring en- bloc that the entire shoreline is a Critical Area.

But the courts, in both the Anacortes Supreme Court decision, and the KAPO Appeals Court decision (which my organization fought for and won) have clearly said that only the SMA applies to the shorelines.  This would appear to have black and white clarity.  Yet, the bill before you today, while acknowledging these decisions, has decided to ignore them – justifying that it is only on an interim basis — which everyone knows may actually last for years in some counties.  This is just plain wrong. 

And the retroactive to 2003 provision of the bill appears to run counter to Article I, Section 23 of the State Constitution, which says: “No… ex post facto law…shall ever be passed.” 

Some will argue that the “sweeteners” added to the bill, such as the protection of existing shoreline structures and uses, make it imperative that this bill be passed.  I would argue that these should have been passed on their own merits and that there will be future opportunity to do so.  While compromise is the name of the game here in Olympia, there comes a time to stand on principle.  We oppose this bill because, at its core, it continues to violate a clear, mandated GMA/SMA separation. 

Furthermore, we observe that continued compromise on property rights legislation over the years, is a one way ratchet toward already determined environmental activist goals.  It is time to reverse this trend. 

Let me mention science.  Much of the science being used to promote agency and activist goals lacks true scientific integrity.  It is not peer-reviewed in the traditional sense and it is often developed with the goal of supporting a specific agenda. Let me give you two examples. 

One involves Senate Bill 6557 to reduce copper in automotive brake pads. No one thought to ask if the copper in question is actually bioavailable to salmon – something carefully ignored by the supporting agency science.  A more complete scientific review shows that that it isn’t. 

Another involves two SMP shoreline studies that purported to show that man-made alterations to the shoreline adversely affected nearshore ecosystem habitat functions.  Dr. Don Flora showed that there was no correlation – using a statistical analysis of the report’s own data.  An attack by 14 technical people failed to dent Dr. Flora’s report’s credibility. (see the attached )(to Rockefeller). 

A final note.  For a long time the environmental activist organizations have had their way here in Olympia.  These days are numbered.  It isn’t just that their science is crumbling with exposures such as Climategate.  It is because property rights organizations are forming in counties across the state — and we are getting organized.  Our numbers are growing because we are dedicated to restoring the constitutional rights of every property owner in the state.  We will fast become a force to be reckoned with.

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