Testimony of Jack Hamilton on House Bill 1653

Dear Senator Pridemore, 

I write in strong opposition to ESB 1653 related to clarification of Shorelines Management Act and Growth Management Act as applies to the shorelines of the state.  The act, as adopted by the House, purports to clarify a misunderstanding of prior legislative action.  In reality, the act adds to that confusion, makes more uncertain which rules apply to shoreline areas and serves to undo or overturn the results of legal actions by adoption of an ex post facto law.

 Constitution Article I, section 23 disallows the passage of ex post facto law.  Because adoption of EHB 1653 will have direct impact on permits issued but not completed before bill passage, permits currently in progress, and legal cases decided or pending of the law as it currently exists, you may not make the retro active.  In particular, a case currently in appeal before the State Supreme Court (KAPO et al vs, Kitsap County) would be directly harmed because the act would establish a legal position for the county that did not exist in 2005 when the Kitsap County Critical Area Ordinance (CAO) was adopted or in 2006 when the original appeal was made to the Growth Management Hearings Board.  Not only would EHB 1653 release Kitsap County from current litigation, but it would also mean that over $100,000 in legal fees paid by KAPO and other plaintiffs would simply be wasted money without opportunity for redress of wrongs. 

ESB 1653 does not recognize the implicit requirement of SMA to address each shoreline property on a site specific basis, because that requirement is not spelled out in GMA.  The Kitsap County CAO, which would have precedence to address shoreline critical areas, takes a broad brush approach and simply identifies all shoreline areas as “critical”.  In addition the Kitsap CAO requires that properties containing “critical areas” , that includes all shoreline properties, will post notice to title of those critical areas.  There is no provision in CAO for the assessor to consider the CAO impacts in determining assessed value of property, a requirement that is specific in SMA.  The end result will be high value property encumbered with a notice to title impacting the resale value of the property with no appropriate recognition in assessed value.  

In addition to the assessment issue, the declaration of all shorelines as critical areas, a fact under Kitsap CAO and codified with EHB 1653, there will be direct impact on the ability of owners to use their property.  Although “enjoyment of use” is a specific right of property ownership and “highest and best use” is the criteria for tax assessment of property, CAO restriction can and do prevent owners from even entering into property identified as a “buffer” for certain critical areas”.  While the current state of EHB 1653 appears to have some compromise that prevents existing use from being non-conforming, there is nothing in the bill that prevents any pending or future use to be denied based on CAO restrictions.  The actual supporters of the original bill are not “confused property owners” trying to establish which rule is applicable but rather, those who would prefer that all shoreline growth be terminated and that shoreline property be returned to some prior natural state. Unfortunately those individuals do not own the shoreline property that will be impacted and have no right to the use of that property.  The responsibility of the legislature is to the individual property owner and not some disassociated group, no matter how ultraistic their goals might be.  

I most strongly recommend that EHB 1653 be defeated in committee and not allowed to pass to the floor of the Senate for action. 

Jack Hamilton, Silverdale, WA

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