SMP REQUIRES PRE-APPROVAL OF ALL “HUMAN ACTIVITIES” ON YOUR LAND
There appears to be some confusion in the mind of at least one City Council member that SMP punishments are imposed only on people who fail to get the required City “permits,” and that there are no new permit requirements created by the SMP. Well, the answer is “yes” and “no.” There are no new “permit” requirements. The SMP has done something far, far worse: it has imposed a pre-approval requirement on all “human activity” that ‘uses the land.’
Section 220.127.116.11 requires that any:
Proposed… use or activities within [the] shorelines… shall be reviewed in accordance with preferred policies listed in 18.104.22.168. The Administrator [aka ‘planner’] may reduce, alter or deny a proposed… use, or activity to satisfy the preferred policy.”
Please note that the provision never uses the word “permit;” instead this is called a “review” by the planner. The SMP drafters have gone to great lengths throughout the regulations to avoid the use of the word “permit,” probably so they could honestly represent to the City Council and the public that these regulations impose no new “permit” requirements. But this is a distinction without a difference. Note what is implicit in the paragraph above: (1) in order for the planner to “review” a proposed activity, a landowner must submit something – probably in the form of an application, since the City has a solid history of never doing anything that isn’t on paper; (2) in order for the planner to “review” a proposed activity, there will probably be a fee, given the City’s solid history of never doing anything without a fee; and (3) the planner has the power to “reduce, alter or deny” – this means City permission. How is this any different than a “permit” requirement?
As for the incredibly broad scope of this provision, section 22.214.171.124 is not just one defective phrase that the drafters never intended to mean what it says; no, this concept is reiterated throughout the SMP. Everywhere that the DOE Guidelines impose restrictions on any “development or use,” the SMP adds the words “or activity.” The only State litany is “development or use”; the only Bainbridge litany is “development, use or activity.” Sections 126.96.36.199 and 188.8.131.52.2 may contain the thirteen different criteria that must be used in evaluating among, other things, a ‘proposed activity;’ but none of these criteria tell you exactly what kind of activity is subject to City review. So we turn to the SMP’s definition of “activity.” It reads: ““Activity – Human activity associated with the use of land or resources.” Well, gee – that helps a lot!
The word “review” is not the only weasel word the SMP drafters used instead of “permit.” The potential for “new activities” to cause adverse impacts must be “assessed” under section 184.108.40.206.4 – one assumes by a planner. And then there is the back door way of telling you that you have a City pre-approval requirement – the SMP says that you must “submit” something. For example, before you can pull out any vegetation – including weeds – either (a) “an annotated list of proposed plants and their spacing specifications and locations;” or (b) a planting plan prepared by a qualified professional or prepared by an “applicant” using the single-family residential mitigation manual “shall be submitted for approval…” SMP 220.127.116.11.1(a) This provision doesn’t say you have a “permit” requirement, but what else could this mean if you are an “applicant” and you have to submit something for City approval? You’ve really got to hand it to the SMP drafters – their use of the thesaurus is remarkable…
But, finally, they slip. As hard as they have tried to avoid calling any of these things “permits,” there is a ‘whoops’ in section 18.104.22.168.2(b). It sets forth that “if a proposed… activity is determined by the Administrator to result in significant short-term, long-term or cumulative adverse environmental impacts…it shall be sufficient reason for the Administrator to deny a permit.” Since it is a “proposed activity,” supposedly it isn’t subject to what they call a “permit” requirement; instead, it’s subject to review, assessment, submittal and application requirements. But, that being too bulky to reiterate in this phrase, the drafters simply used the word we all know best describes the cumulative total of all these things – a “permit.”
I could set out all the other provisions that set out the need for prior ‘review’, ‘assessment’, City ‘determination,’ or City ‘approval,’ but once you know that any ‘human activity related to the use of land’ requires City decision-making, you don’t need any more specifics. The only thing these specifics may mean is that while all human activity without City pre-approval is potentially punishable, violations of these specific provisions are absolutely certain to be punished.
In short, there is no substantive difference between a “permit” and all these other requirements; you go through the same process and you get the same punishment if you fail to do so. For, all of the SMP’s punishments are applicable for failure to obtain either “permits or authorizations.” Section 22.214.171.124 sets out every conceivable thing that could result in punishment:
It is unlawful for any person to: [i]nitiate or maintain, or cause to be initiated or maintained, the use, construction, placement, removal, alteration, or demolition of any structure, land, vegetation or property within the city without first obtaining permits or authorizations required by this Master Program…
So, you cannot start anything – or cause anyone else to start anything – without City pre-approval (i.e., don’t you, your gardener, or your handyman – start to do anything). You cannot maintain a structure or vegetation without City pre-approval (i.e., no cleaning of gutters, no mowing of grass). You cannot alter – i.e., change – a structure, vegetation or land without City pre-approval (i.e., no painting, no trimming, no digging, no raking, no sweeping). You cannot place a structure, vegetation or land without City pre-approval (i.e., no putting in planting bed curbs, no installing new plants, and no shoveling of dirt from one spot to another).
It would be easy to ignore what looks like ridiculous governmental overreach, but to do so is to risk severe punishment. The first one of these non-approved activities is a civil infraction, with municipal code fines plus a potential $1,000/day penalty (section 7.2.3), and the second one of these within 12 months is a misdemeanor punishable by up to 30 days in jail (section 7.2.9).
The City Council may content itself with the thought that the SMP has not created any new “permit” requirements. However, what it has done is much worse. It has imposed an extremely invasive, all-encompassing and overly burdensome City pre-approval, pre-review, assessment, submittal, application. determination and authorization requirement for all “ human activity” that ‘uses the land.’ Let’s face it – this is far more excessive than any “permit” requirement we’ve ever seen before.
Linda J. Young, Esq.