Commentary: Bainbridge Island SMP

CITY SPYING IS INTRODUCED BY THE VERY LATEST SMP REVISIONS AND THEY ALSO INCREASE CIVIL AND CRIMINAL PENALTIES

Perhaps you remember the draconian punishments the City created in SMP Section 7, which were never brought forward to see the light of a public hearing, but were instead buried as attachments to the City Council materials of March 13th.  Well, now there’s the companion act – a provision the City tried to enact after the last public hearing on May 8 and the City now has been forced to include as materials that come before the public hearing.

Take a look at Section 4.1.5.4; it reads as follows (and yes, it has a grammatical error):

“Development, uses and activities adjacent to critical areas, including critical saltwater habitats and fish and wildlife habitat conservation areas, proposed within shorelines of the state shall [be] monitor[ed] to assure that these areas are not being adversely impacted by approved development or restoration projects.”  (emphasis and grammatical suggestions added)

So, if this revision is passed,  the Planning Department can monitor all shoreline uses and activities, and implicit in this is the authority to come onto private property in a non-emergency situation – how else can the City monitor what someone is doing behind the house, away from the road?  All shoreline property is involved because the SMP’s loosey-goosey different interpretations of “critical areas,” plus what can constitute a wildlife habitat or a saltwater habitat encompass the entire Island shoreline.  Also note that the line references “within shorelines of the state” – this is legally all 53 miles of Bainbridge waterfront.

Giving City staff the right to come onto your land without prior notice and with no restrictions as to the areas to be ‘monitored’ legally amounts to an easement having been given to all City personnel that covers your entire private property.  And the purpose of this privacy invasion is admittedly to “monitor” – what some of us would call ‘snoop’ or ‘spy.’  That’s nothing I am willing to permit on my property, but this regulation would take away my right to object.

In short, this provision amounts to a Fifth Amendment taking of one of the three fundamental rights of property ownership: the right to exclude others.  This is a right that has been enunciated by the U.S. Supreme Court in all kinds of cases and has been held to require compensation from the municipality when there is no nexus between the requirement and a construction project.  And here’s a real problem.

At Wednesday’s City Council Meeting Steve Bonkowski asked Ryan Ericson if this proposed revision was limited to new construction.  Ericson kinda-sorta did/didn’t answer the question.  He left the impression that yes, it was just related to new development.  But it is not.  Read the provision carefully.  “Uses” that are subject to monitoring have nothing to do with new construction: this is a zoning term that refers to how the property owner is using the property after any construction project is done.  “Activities” may or may not have something to do with construction; as we know from the requirement that all human “uses and activities” must be pre-approved by the City, these activities can involve something like a birthday party for your granddaughter in the back yard.  And look, they say they are checking to make sure that “approved development” is not harming the environment: this encompasses not just new construction but existing development.  Even though existing development may be labeled “nonconforming” by the SMP, it is nevertheless acknowledged as having been “approved development” at the time it was built.  As a final word, this provision is not limited to new construction because it is located in a chapter that is not limited to new development; it is in the “Critical Areas” section.  Within that chapter, 4.1.5.1 specifies that its applicability goes beyond just new development; it says:

  “All shoreline uses and activities, including development which does not require a shoreline permit, shall conform to these provisions.”

Whatever the intent of the City personnel who could then roam fearlessly over private property, the fruits of such ‘monitoring’ can be increased City revenues – fines for failing to get permits and required City pre-approvals for everything from weeding to birthday parties in the back yard.  Here is where we run into the most recent staff-proposed SMP revisions, hot off the press in October 2013.  These changes are breathtaking!

Last summer, when I wrote my first piece about the City’s new Section 7, I thought I couldn’t imagine more draconian penalties for what most of us would consider extremely minor infractions of the law – such as weeding without a permit.  Little did I know that the City could add even more!  In its October SMP revisions to Section 7, the City has surpassed itself.  Instead of just being punished under the City’s municipal code, you are also to be punished under State law and – as the tv infomercials say – ‘there’s more!’

The City is no longer content to just fine you for each subsequent day of an infraction; rather, it increases the severity of the punishment, rapidly turning what started out as a simple infraction into a gross misdemeanor.  The new SMP revisions specifically make each and every subsequent day a separate violation of the SMP.  By doing this, the City escalates the amount of the monetary fines and exposes you to a criminal record with even the potential of several tours ranging from 90 to 364 days each in the County Jail.  This sounds preposterous, doesn’t it?!

But let me explain in some excruciating detail.  Under old Section 7 if you, say, weeded without a permit – then you used to ‘just’ be guilty of a civil infraction and you paid a $500 fine under Municipal Code 1.26.035 plus a $1,000 per day “civil penalty” under 7.2.9.  Now, through its revision of 7.2.9,  City staff has made clear that “every day shall constitute a new violation.”  The problem with this is that each subsequent violation/day therefore escalates the amount of fines and takes you out of the sphere of civil offenses and into criminal offenses.  How would you like that on your police record?!

Here’s an example. Let’s assume that on Sunday – even though you didn’t get a permit for weeding – you went ahead and pulled some weeds, but you didn’t plan on ‘restoring’ your land with native vegetation in that area until the following weekend when you had more time. And you never thought the City would be able to catch you since you are, after all, on your own private property where the City isn’t supposed to be able to come without your express permission…  And, let’s assume that you knew you were supposed to get a permit and to restore the land. Then let’s assume that the City is out there ‘monitoring’ your “activities” and they see you pulling the vegetation on Sunday and they return on Thursday for more ‘monitoring’ and see the still-empty area in your flowerbed.  The City has checked its permit files and it quickly determines that you are guilty of violating the SMP beginning Sunday and continuing every following day.  Well, that could be the end of your life as you know it…

Sunday you committed a civil infraction by failing to get a permit to weed.  That’s a civil infraction under Municipal Code 1.26.035 – that means $500 plus court costs plus the City’s attorney’s fees plus your attorney’s fees.  And then there is the additional “civil penalty” under SMP 7.2.9 of a fine of up to $1,000.

Also, when you failed to restore the area on Sunday with native plants, you committed a second SMP violation within 12 months – so this, under 7.2.8 is a misdemeanor, which is punishable under Municipal Code 1.24.010A(1), which sends you to the State law on punishments, RCW 9.92.030 – translated, that means up to 90 days in jail and/or a $1,000 fine.

Because you knew you were supposed to get a permit and you knew you were to supposed to replant on Sunday, you are guilty on Sunday of a third SMP violation – for having “knowingly and willfully refuse[d] to complete a required restoration.”   This is a gross misdemeanor under SMP 7.2.9, which is punishable under Municipal Code 1.24.A (2) in accordance with RCW 9.92.020 –  which means another fine of up to $5,000 and/or by up to 364 days’ imprisonment in county jail. And because this was your third SMP violation, this means you hit the jackpot – as SMP punishment, under 7.2.9, right after “PROVIDED,” it makes the third violation and any subsequent violation (aka day) within 5 years punishable by not less than $500 and a fine up to $10,000.  In any event, thank goodness Sunday is over!

But what about Monday, Tuesday, Wednesday and even Thursday?   For every day after Sunday that you fail to restore that flower bed area, you have another gross misdemeanor, with the punishments set forth above – fines up to $5,000 and/or $10,000 and/or up to 364 days in county jail for each such violation.  Further, suppose you aren’t even able to replant that flower bed area on Friday – maybe because you are in City/County custody – then more and more days are passing and more and more violations are accruing.  And then there are the possible bail costs and more of your own attorney’s fees.

By now you have either concluded that this is a really bad nightmare, or that I am a raving lunatic.  So, check it out.  Read it for yourself.  The newly revised SMP Section 7 is available at the City’s website, attached to the October 18th City Council Special Meeting Notice.  After reading it, you might be thinking, as I was:  How do they come up with this stuff?  And, what kind of people come up with this stuff?!  For me, these are people we don’t need or want in City government.  Any people who will adopt these kinds of regulations need to go.  And any candidates for City Council who would continue this ‘status quo’  –  just because the City put a lot of time and effort into writing this – should never be elected.

Linda Young lawfulpatterns@msn.com

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