Pacific Legal Foundation (PLF) has been contacted by several property owners who will be affected by the City of Bainbridge Island’s (COBI) proposed Shoreline Master Program update (SMP). Based on our review of the SMP, it is our opinion that several of the program’s proposed regulatory standards will violate the constitutionally protected property rights of shoreline home owners. We are aware that many potential constitutional violations have been addressed in other public comments and incorporate those comments by reference. The purpose of this letter is to discuss three particularly problematic aspects of the city’s proposed SMP that may result in litigation, exposing both COBI and the State to liability.
First, the proposed SMP imposes “enhancement and restoration” conditions on all new development/use of shoreline lots. As proposed, the conditions will violate the U.S. Supreme Court’s recent decision, Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013). In broad terms, the Koontz decision holds that the government cannot use the permit process to force landowners to give up land, money, or any other property as the “price” of obtaining development approval. A violation of Koontz can result in invalidation of the ordinance, award of damages against COBI and/or the state, and/or an award of just compensation.
Second, the proposed SMP declares all existing structures and uses within newly expanded buffer zones “nonconforming.” 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. 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.
And third, the 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. This letter discusses the due process and takings ramifications of the city’s proposed scheme.
Complete Text: PLF_Comment_Letter_COBI_SMP