Pacific Legal Foundation says legal issues with SMP not addressed by the city

To put this in context:

Pacific Legal Foundation, who has won numerous constitutional property rights case, including the recent Koontz case before the US Supreme Court, commented on a SMP for the very first time.  PLF commented on Bainbridge’s SMP with a 11 page letter of legal argument about why Bainbridge’s SMP was unconstitutional.

Bainbridge dismissed PLF legal arguments with few lines in the summary of a summary.

There were 800+ pages of written comments plus oral comments that the DOE summarized in only 18 pages (DOE_Comments_Matrix).   Bainbridge then responded to the DOE summary by creating a summary of a summary of 6 pages (Baninbridges_Responses_to_Ecology_Comment_Matrix).

Here is PLF’s letter to the DOE

From: Brian T. Hodges

Re: City of Bainbridge Island’s Proposed Shoreline Master Program Update Public comments must be considered

Dear Ms. Nightingale:

I write to express my concern that most of the issues raised in Pacific Legal Foundation’s comment letter, dated August 21, 2013 (Letter No. 102), are not being fully or adequately considered by the Department of Ecology or the City of Bainbridge Island (COBI). PLF’s comment letter raised three issues (with sub-parts):

1. The buffer provisions of the proposed SMP violate the unconstitutional conditions doctrine and unlawfully burden rights protected by the Takings Clause (pages 4-6);

2. The nonconforming use provisions of the proposed SMP violate Due Process (pages 6-10);a. The provisions are arbitrary and irrational because the city misuses the term “nonconforming” in a manner that conflicts with binding precedent from the Washington Supreme Court;

  1. a. The provisions are arbitrary and irrational because the city misuses the term “nonconforming” in a manner that conflicts with binding precedent from the Washington Supreme Court;
  2. b. The “nonconforming” designation is harmful to existing and valuable property rights;
  3. c. Retroactive application of the nonconforming use provisions violate due process, Ecology regulations, and are internally inconsistent; and

2. COBI exceeded its authority when it included provisions that seek to regulate and control all “human activity” on private shoreline property (pages 10-11).

Ecology’s summary of comments failed to identify any of the constitutional issues raised in the letter (stating instead that PLF’s letter only commented on “Sect. 4.2.1, non-conforming development; property rights; Section 4.1.3 Vegetation management-buffers”). Unsurprisingly, COBI’s response only addressed the topics listed in Ecology’s summary, ignoring all of the substantive issues raised in the letter. Indeed, COBI’s response matrix does not even list PLF’s comment letter as having raised takings, due process, or retroactivity issues. It appears that my comment letter has not been read, let alone considered.

Takings Comments Must Be Considered

COBI has not considered the takings issues raised in PLF’s comment letter. The city’s response claims to have considered the takings claims raised in 1, 16, 23, 50, and 77 in a confidential memorandum that was prepared for the city by the law offices of Ogden Murphy Wallace prior to April 16, 2013. That review is inadequate to address the issues raised in PLF’s letter, which focuses on Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013)—a U.S. Supreme Court decision that was decided on June 25, 2013. Clearly, the memorandum could not have addressed the issues raised in PLF’s comment letter. Ecology should direct COBI to read and respond to the letter.

At the very least, Ecology should be aware that the constitutional issues raised in PLF’s letter were never considered by COBI, and should, therefore, be provided special consideration during the agency’s review process.

Due Process Comments Must Be Considered

COBI’s response matrix does not indicate that it considered any comments that its proposed SMP violates Due Process.

Washington law recognizes that lawfully-established structures are vested property rights and may continue regardless of later enacted land use laws. COBI’s proposed SMP, however, seeks to retroactively re-designate lawfully established structures and uses “nonconforming.” The Due Process Clauses of the Washington and U.S. Constitutions prohibit government from enacting laws whose retroactive application would deprive landowners of vested property rights. See State v. Schultz, 138 Wn.2d 638, 646 (1999) (“A retroactive law violates due process when it deprives an individual of a vested right.” ); In re F.D. Processing, Inc., 119 Wn.2d 452 (1992); Landgraf v. USI Film Prod., 511 U.S. 244 (1994); Claridge Apartments Co. v. Comm’r of Internal Revenue, 323 U.S. 141 (1944).

The city’s failure to consider PLF’s due process comments is particularly troubling where the city has not contested that certain provisions of its SMP apply retroactively to existing development and uses (and has notably not disputed that the proposed program contains conflicting provisions regarding retroactive/prospective application of nonconforming provisions, see PLF letter at 8-9).

Financial Impact Comments Must Be Considered

COBI’s response matrix claims that “there is no evidence” that any of the restrictions proposed in its draft SMP will have any financial impact on property owners. That is untrue. PLF’s letter lists a number of well-known impacts that a “nonconforming” designation can have on property owners (pages 7-8).

Acts in Excess of Limited Authority Comments Must Be Considered

Finally, COBI did not address PLF’s comment (pages 10-11) that the city acted in excess of its limited authority when it proposed regulations seeking to control all “activity” occurring on private shoreline property “whether a permit is required or not.” SMP; SMP As stated in PLF’s letter, there 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.

Ecology has a duty to modify or reject a proposed shoreline standard that violates the constitutional limitations of the regulation of private property. The city, however, has not considered the constitutional infirmities of its program. By this letter, I request that Ecology direct COBI to provide responses to the substantive issues raised in PLF’s comment letter. I also request that Ecology engage in its own, independent analysis of the constitutional issues raised.

Thank you for your attention,

Brian T. Hodges
Managing Attorney
Pacific Legal Foundation

Pacific Northwest Regional Office
10940 NE 33rd Place, Ste. 210
Bellevue, WA 98004
ph/ 425-576-0484
fax/ 425-576-9565


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