Bainbridge Defense Fund Review of PLF Letter to DOE on the SMP

THE BAINBRIDGE SMP ISN’T JUST HISTORY; IT’S A BALL AND CHAIN ON THE CITY’S ECONOMIC FUTURE

Any City Council candidate who believes that the SMP is just something that happened in the past we should not dwell on, is someone who lacks the perspective necessary to see a problem that is staring them in the face and to fix it. For, while the SMP City Council vote is history, the SMP has effectively attached a ball and chain to the City’s ankle. At first you may notice it only a little; but, with time, this ball and chain become more and more heavy until finally, you cannot move at all.

The new SMP will, of necessity, involve litigation and high legal fees, as well as a distraction from other important City goals. Economics will dictate litigation because the shoreline landowner’s property value is so significantly impacted by the SMP’s “nonconforming” designation, by “in perpetuity” dense vegetation requirements, by outright and effective bans on new development, by bans on bulkheads, and by taking private docks, piers and floats. When these things are so readily identified as unlawful, the obvious economic decision is to go to court and restore your property’s value.

That these requirements are unlawful is not just my opinion. Recently, the extremely respected Pacific Legal Foundation, apparently for the first time in its 40 year history, took the step of submitting a formal SMP comment letter to the DOE – and the SMP it targeted was our very own Bainbridge SMP. This isn’t a mere Bainbridge homeowner talking about his property; this is a completely independent, objective, non-profit organization with no financial interest in the Bainbridge shoreline. Its only concern is to stand up against constitutional property rights violations. As such, PLF has participated in virtually every important U.S. Supreme Court and Washington Supreme Court land use case in the past few decades, almost always on the winning side. The PLF letter did not threaten litigation; its comments merely served to highlight for the DOE what many other lawyers can easily see and will pursue in the courtroom for their clients. Attached is a copy of the PLF Letter to DOE PLF_Comment_Letter_COBI_SMP dated August 21, 2013.

The part of the Pacific Legal 11-page letter that received the most ink was the SMP’s nonconforming designation of existing shoreline homes. It notes that:

The city’s proposed SMP exposes hundreds of landowners to significant harm for no good reason – the nonconforming designation carries legal consequences that burden one’s rights in the land and harm its value. The proposed regulations do not advance any public purpose that cannot be achieved without the offending designation.

(p. 2) Specifically, “[t]he city misunderstands and misuses the term nonconforming in a manner that is arbitrary, irrational, and harmful to hundreds of existing homeowners.” (p. 6) Further,:

Placing a nonconforming designation on lawfully established residential structures/uses will impact the property value. Obviously, the market for a home will be artificially depressed if it is designated nonconforming. Several years ago, when Thurston County was considering including a nonconforming designation in its critical areas ordinances, the county conducted a telephone survey to determine some of the effects that a nonconforming designation would have on property owners. The county’s findings suggested that property owners whose homes are deemed nonconforming may incur significant financial hardship.

(p. 7-8) In short, the Pacific Legal Foundation concludes that “COBI’s desire to designate existing homes nonconforming is arbitrary, irrational and unlawful.” (p. 8) And, “such a scheme creates a retroactive burden on shoreline property owners’ vested property rights in violation of state and federal constitutions.” (p. 9)

From a zoning standpoint, this “makes no sense.” (p. 9) “The city planners/council members who support this designation believe that there is no difference between a ‘pre-existing conforming structure and a ‘nonconforming structure.’ They are incorrect.” (p. 1)

A municipality may declare a use nonconforming where it causes a nuisance to other landowners due to its location… What the city proposes is something very different: to declare a lawful residential structure nonconforming because the land it occupies – while zoned for residential use – has been targeted by the city for public use as a conservation easement (to filter runoff from city streets). That is a misuse of the city’s zoning authority. It is irrational. It is inconsistent with U.S. Supreme Court precedent. And, more importantly, it is unnecessarily harmful to the affected home owners.

(p. 10)

On the subject of the SMP’s vegetation provisions, Pacific Legal had the following to say:

The proposed SMP seeks to exact multiple unconstitutional conditions from the landowners… These conditions are triggered by an application for new development, use or activity within the 200-foot shoreline jurisdiction that either ‘disturbs’ native vegetation or vegetation in a buffer.

(p. 5) Specifically, the conservation easement/title restriction to native vegetation “in perpetuity” is characterized by PLF as an “unconstitutional condition,” to use the terminology of the U.S. Supreme Court, as are various other vegetation provisions. It is significant to note that the most recent U.S. Supreme Court case on this type of unconstitutional provision is the Koontz case, which was litigated and won by the Pacific Legal Foundation. So, if anyone knows what an unconstitutional condition looks like, it’s this group.

The letter continues:

It is well-established by state and federal cases that buffers and vegetation retention areas constitute a public use of private property and must, therefore, comply with constitutional limitations on takings…

(p. 5) This highlights the area where a lot of City money will go if the DOE approves the SMP: into paying Fifth Amendment just compensation awards for eminent domain takings of part, or all, of shoreline properties. To determine whether a particular land use regulation is a valid regulation, or whether it is a “taking,” the Supreme Court has a couple of basic tests. Here is how the PLF thinks the City’s regulation fare when given those tests: “COBI and Ecology have not and cannot satisfy the nexus and proportionality tests based on the city’s scientific records.” (p. 5) When the City’s regulations flunk these tests, they fall into the category of eminent domain takings. This is very expensive real estate for the City to have to buy.

Acknowledging that input from other sources was identifying other legal problems with the SMP, Pacific Legal’s final discussion point was the SMP’s violation of due process by its “non-permit approval” requirements.

[T]he proposed SMP seeks to regulate all human activities that are not subject to permit through an undefined application and approval process. The city’s scheme goes far beyond the regulatory processes set out by the Shoreline Management Act (SMA) and gives the city unlimited discretion to interfere with the private affairs of shoreline landowners.

(p.2) The PLF comments that “the City goes too far” – well beyond what the SMA allows. With the term “activity” so poorly defined by the SMP, the PLF says that:

…it could conceivably include anything a person does on his or her land (e.g., a picnic table, a political rally, replacing an old rhododendron, renting a “bouncy house” for a birthday party, portaging a kayak to the water, etc.)…”

(p. 10) In short, the PLF finds that “[t]here is simply no statutory foundation in the SMA or Ecology’s guidelines for the city to regulate ‘human activity’ through a non-permit approval process…” (p. 10) In addition,

The city’s undefined “activity approval” process is wholly arbitrary… Ecology’s oversight/review of a decision is unknown. In other words, the city seeks to grant itself unlimited discretion to control all human activity on private shoreline property. Such unlimited discretion violates due process – at the very least – and must be stricken from the proposed program.

(p. 11)

Notwithstanding the incredible hassle and financial burden of the SMP’s non-permit ‘pre-approval’ process, the real impetus for people to sue is going to be, as always, money. The sales of shoreline properties – which fit within the category of $1 million or more – have decreased by roughly 50% for the first six months of 2013 (as compared with the same time period of 2012), while all other segments of the Bainbridge real estate market increased. (Source: Windermere sales statistics)

So, you can see that shoreline landowners, faced with significant market value loss caused by SMP regulations that their lawyers can clearly see are unlawful, have a very definite incentive to sue the City. They will simply have too much at risk to view the SMP as a ‘fait accompli’ – an historical event one must live with. For, just as voters usually vote their wallets, so do people usually litigate their wallets. It would be unrealistic to expect people not to take action to protect what for most people is the repository of their entire life savings.

The extent of damage the Bainbridge SMP can inflict on the City’s finances simply cannot be ignored as we move further away from the date of its passage, for it is the ball and chain on the City’s ankle. This is no lightweight burden – the SMP contains not just a problem or two, as one City candidate seems to infer; rather, the SMP has a boatload of legal problems that could take years to unravel. This will result in a very heavy financial burden that the City will be carrying for years – unless we elect a different kind of people to the City Council. We need people on the City Council who can recognize a ball and chain when they see them, people who are bright and motivated enough to get rid of them up front, rather than only after litigation.

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