Buffer Intervention: Kitsap County

If city or county planners insist that you sign a deed restriction before they’ll give you a building permit, protect your rights by signing it “under duress.”

Last week I met with two individuals who each own shoreline property in the Seabeck area.  Each of their sites has a Semi-Rual Environment designation under the existing Shoreline Master Program.

One is proposing to build a new house and the County told him he had/has a 100 foot buffer requirement (per the Critical Areas Ordinance).  While he could live with the 100 feet, he was informed by the permit reviewer in the Building Division that he would have to set his house back another 15 feet from the buffer.  That he could not do.  He contacted me and I went with him to meet with DCD staff.  Without belaboring the point I was able to convince the staff they were lucky to get his compliance with the 100 foot buffer!  They agreed.

 After our meeting I took them  upstairs and explained to them both that, while there was a verbal agreement, before everything was finalized, i.e. before the building permit would be issued Kitsap County would want him to sign a “deed restriction” to enforce the buffer requirement. As carefully as I could I explained that neither of the two should sign such an agreement unless they did so under protest.  One of them has not yet submitted his building permit application wanted to know what the language of his protest should be.  I took the information from the Kitsap Alliance business card and augmented it a bit.  Essentially I provided the text of the RCW citation on the business card..

It may be that others will find occassion to be in conversation about permits or situations where you can call attention to what it is people should do when faced with the necessity to sign a deed restriction imposed by a county or a city.  This language will work.  The objective here is to protect your rights to freely use and enjoy your property as granted by both the Federal and State constitutions.  Without using this protest language you are infact “contracting” away your constitutionally granted rights.  A “contract” can define a new ball game for what you can and cannot do with your property.

Besides the protest language provided below, this is an example of how people can be helped if we can get the word out.

Pertinent to the discussion we had the other day, the County more and more wants declarations to be signed and other agreements that will be recorded against your title.  While I am not an attorney and therefore cannot  provide legal advice, I can tell you what may be best for you to do to protect your constitutionally given property rights whenever you are  required to sign agreements that will be recorded against the title of  your property.  Here is the kind of language I recommend.

” I am signing this document under protest as I believe I cannot be forced to abrogate the rights to the use of my property as given to me under the United States Constitution and the Washington State Constitution.”

Under your signature insert the following:  “U/D RCW 62A.1.20.”

This language should allow you, if necessary, to later assert your  constitutionally protected rights to own and use your property.

Incidently, the “U/D” stands for Under Duress and the Revised Code of  Washington citation  references the following provisions:

RCW 62A.1-207

      Performance or acceptance under reservation of rights.

(1) A party who, with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice”, “under protest” or the like are sufficient.

(2) Subsection (1) of this section shall not apply to an accord and  satisfaction.

[1993 c 229 § 2; 1965 ex.s. c 157 § 1-207.]

If you need further input, I would suggest you contact your attorney and explain your concerns.  One member of Kitsap Alliance (not an attorney), has been through permit processes like the ones you are experiencing and he has gone so far as to promise legal action, for the liability public officials incur by forcing him and some others he has worked with to sign documents that cause restrictions to record against his or their property.

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