The Battle to Preserve Property Rights is in Danger of Being Lost

By Karl Duff

It would be nice to find effective means of alerting the public as to what’s happening to our property rights without necessarily shouting at the top of one’s lungs.

A more graceful way of commenting on the skullduggery of paid “public servants” without calling them liars would also help.  But it doesn’t seem possible.

Since Kitsap County’s Critical Areas Ordinance (CAO) was drafted in 2004, the Kitsap Alliance of Property Owners (KAPO) has repeatedly filed correspondence and testimony regarding the severe consequences of land-use regulations causing once-legal property improvements to suddenly become “non-conforming”.  (This term is a land-use euphemism meaning “illegal, but temporarily tolerated.”)

Setbacks, buffers, impervious surfaces, auxiliary dwelling units, etc., characterize most non-conforming properties in our county that would never be permitted today under newer regulations.

A “non-conforming” property is subject to severe restrictions against further improvements, restoration and use, even if a home is destroyed by fire or storm.

It requires government variance to obtain permitting.

In addition to impacting insurance rates, variances can be appealed by anyone.  This then requires public hearings, starting with the Hearing Examiner.  This usually requires an attorney and produces further appeals at ever higher and more expensive levels of litigation.

The next level of appeal is our county commissioners, then Superior Court, then the Court of Appeals.

Cases have occurred in Kitsap County in which such appeals have caused the property owner such hardships as (1) eight years of delay; (2) giving up and leaving Kitsap; and, (3) bankruptcy — even when finally victorious in the courts.

I’m not making this up.

The state Department of Ecology (DOE) has escalated the stakes for the Shorelines Master Plan (SMP) updates.  It published that it intends to “phase out” all non-conforming properties.

For water-adjoining properties now bound under setbacks and buffer restrictions, rendering them no longer conforming (i.e., buildable) means the state intends them to eventually revert to natural shoreline wildlife habitat.

DOE, having now been caught on the record with this stated policy, is now naturally denying it.

This should be properly regarded as a lie.

On Feb. 9, DOE was represented by high-level career staffer Eric Stockdale at a San Juan County Council meeting with a power-point presentation on wetlands rules, best-available science and updating processes to SMPs and CAOs.

When councilmember Howie Rosenfeld asked Stockdale how DOE was dealing with non-conforming use in other counties, he answered by saying that San Juan County was the “first and only jurisdiction” with concerns over DOE’s non-conformance policy.

This is a strange fabrication, since it is known that these concerns have been raised in Kitsap, Jefferson, King, Yakima and Okanogan counties and DOE, having been previously caught lying, has even been obliged to publicly disavow its published “phase out” policy.

Is this merely bureaucratic ineptitude — an indication of Stockdale’s ignorance or non-professionalism?

No, Stockdale has been at DOE for a long time and did not just fall off the turnip truck.

Schemes to stop growth and restore pre-Columbian wildlife habitat are apparently further along than we knew.

This may explain why in 2005-6, Kitsap County steadfastly refused to provide “grandfather” clauses for already-developed properties in the Critical Areas Ordinance (CAO), despite KAPO’s vigorous calls for such property protection.

State DOE is also apparently now using a policy of isolating individual counties by whatever means they can to further intimidate and extend its regulatory control over private property.

By isolating counties (i.e., “You’re all alone, San Juan; no one else sees the problem you claim”), DOE can more easily impose its way.

It has even required individual counties to sign SMP update performance contracts in order to obtain state grant money (read: bribes) to help defray costs.

DOE has selected one of the weakest (and environmentally radicalized) counties, Jefferson County, as the first to face DOE approval of its SMP update. Once Jefferson is “in the bag,” DOE anticipates this precedent will make it easier to roll over the other counties.

There will be no rescue from these policies unless private citizens and businesses rise up to defend against such illegal “takings” by government of private property that prohibit owners from use, without compensation, contrary to the rights declared in our state and federal Constitutions.

Too many citizens busy with other things have rationalized that what sounds good for the environment must be good for all of us, without realizing that by remaining uninvolved, they’re giving away to government the most essential commodity that makes us a free people — our property.

Editorial Note:

Also,  this article can be read on the  Bainbridge Shoreline Homeowners  link,  titled “SMPs are USURPING OUR CONSTITUTIONAL PROTECTIONS”


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