State Supreme Court Rejects KAPO Shoreline Appeal

By Christopher Dunagan,
Kitsap Sun, Bremerton, WA

Posted July 18, 2011 at 4:33 p.m.

OLYMPIA — Washington State
Supreme Court has declined to consider a challenge to Kitsap County’s Critical Areas Ordinance — including a requirement for 100-foot buffers along rural shorelines.

Without comment, the Supreme Court upheld a ruling from the Washington State Court of Appeals in favor of the county and against the Kitsap Alliance of Property Owners.

“The county is very happy with the ruling,” said Lisa Nickel, a deputy prosecutor who handled the case for the county. “This puts to rest the question of the validity of our Critical Areas Ordinance, which we have been fighting for over five
years. Now, we can turn our attention to current things at hand.”

A shorelines task force is putting together recommendations for updating the Kitsap County Shorelines Master Program, which will address future shoreline regulations.

KAPO has not decided whether to appeal the case to the U.S. Supreme Court, said Brian Hodges of the Pacific Legal Foundation, who represents the property rights organization. He said the courts failed to resolve a key constitutional issue on procedural grounds.

“It’s a bit disappointing,” Hodges said. “We’ve gone through six years of appeals to reach the conclusion that none of the courts would address the main issue that was appealed.”

Hodges said the appeals involved a “facial challenge” to the county’s Critical Areas Ordinance. He argued that the ordinance itself failed to meet legal muster, because it applied 100-foot buffers to all rural properties, both developed and
undeveloped. It is obvious, he said, that the environmental effects would be different for developed properties.

Hodges said he could bring another lawsuit challenging the buffers on behalf of a particular property owner who wishes to build but finds himself unfairly constrained by the buffers. Hodges said he would need to consult with KAPO officers before he will know whether the group supports further efforts to overturn the Critical Areas Ordinance.

“All this is a hard reset,” Hodges said.

Nickel said that the courts did address the constitutional issues before finding in favor of the county and that she believes further efforts would be unsuccessful.

Initially, when the Critical Areas Ordinance was approved in 2005, the Kitsap County commissioners deferred action on shoreline buffers. Later, on orders from the Growth Management Hearings Board, they expanded the buffers from the previous 35 feet to 50 feet for urban shorelines and to 100 feet for rural and semirural shorelines.

In response to a lawsuit filed by KAPO, the Court of Appeals ruled in 2009 that Kitsap County could not revise its shoreline rules by amending its Critical Areas Ordinance, which comes under the Growth Management Act. Based on an earlier State Supreme Court ruling in Skagit County, the appeals court said shorelines must be governed by the Shorelines Management Act.

Many jurisdictions, including Kitsap, declared the Supreme Court ruling nonbinding because of the 4-4 vote. To clear up the confusion, the Legislature approved a bill allowing local governments to use their critical areas ordinances until they adopt new shoreline rules. The law was made retroactive to 2003.

KAPO’s lawyers argued that the Legislature does not have authority to make a state law retroactive to circumvent a court ruling. But the appeals court concluded that because of the split vote, the Supreme Court never “authoritatively” resolved the conflict between the two laws, so the Legislature’s action was valid.

By refusing to hear the latest appeal, the Supreme Court upholds the validity of the county ordinance.

For more information go to the Kitsap Sun web site or Chris Dunagan blog site.

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