To view the Final Bainbridge Island shoreline Master Program Document, Click
Briefly, there are several, not mutually exclusive, options:
(1) Do nothing.
(2) Appeal the COBI Shoreline Master Program (“SMP”) once adopted. The appeal goes to the Growth Management Hearings Board, Central Board, Seattle (“GMHB”). The appeal must be filed within sixty (60) days of the notice of publication of adoption of the SMP. The appeal is “on the record;” that is, no new testimony is taken. The Board primarily reviews whether the SMP is consistent with provisions of the SMP and the State Guidelines, WAC 173-26; it cannot address constitutional issues. An appeal goes to the superior court, which has jurisdiction to address constitutional questions. There is a procedure to skip the superior court and go directly to the Court of Appeals.
(3) Do nothing for now, but consider appealing if a permit to redevelop your land is denied. This is called an “as applied” challenge. Typically, in an “as applied” challenge, the property owner contends the restrictions are excessive because (a) neither directly related to a need to protect the environment and/or (b) disproportionate to any perceived harm. In an “as applied” challenge, the burden is on government to justify its actions, that is, to show “nexus” between a perceived harm and the project proposed. In this type of litigation, damages and attorney fees can be awarded, as well as a declaration invalidating the project decision.
(4) Property owners can organize and write letters to the County Assessor requesting a reduction in taxes based upon the new restrictions. Under the SMA, the Assessor must consider restrictions as affecting the fair market value of the property: “The restrictions imposed by this chapter shall be considered by the county assessor in establishing the fair market value of the property.” RCW 90.58.290. (Emphasis Supplied). Exercise of this option could put pressure on the City to negotiate.
(5) If there is no relief provided by the County Assessor, some of our client groups in other jurisdictions are considering filing a class action for a regulatory taking, seeking money damages.
Another option is litigation of the nature and type the Bainbridge Defense Fund intends to file. In that matter, Richard Stephens with the Groen/Stephens law firm is representing BDF. I know Richard; he is a very capable attorney. According to Mr. Tripp, BDF is considering filing what is called a “direct challenge” contesting “on the face” the constitutionality of various provisions of the SMP.
This direct challenge is anticipated to take four to five years if it goes to the State Supreme Court, and will be very expensive to pursue. The “direct challenge” is a good vehicle to get the City and the Department of Ecology’s attention in my opinion. It could force the City and Department of Ecology to act more intelligently and approve a balanced SMP, if an appeal is filed to the GMHB. The shoreline property owners must understand that there are opportunities to still discuss changes to the SMP with the Department of Ecology.
My firm is handling a challenge to the SMP adopted for Jefferson County. Presently the appeal to the GMHB has been stayed, while the parties discuss settlement. In that proceeding, the citizens have prepared their own version of the SMP to use as a settlement document. We should know in the next month or so how serious Ecology and the County are in terms of working with the affected shoreline owners to change sections of the challenged SMP.
On Bainbridge Island, there is a split on the City Council and, it appears, there is an attitude to re-look at the SMP. An appeal with ensuing settlement discussions is a vehicle to allow the City and the State of Washington Department of Ecology to back down and work out a more balanced SMP. This would avoid protracted litigation and expense without the need to go through piecemeal revisions to the COBI SMP over time.
An appeal is much less expensive than all out litigation. If negotiations ensue, the appellants should retain a top lobbyist with good connections to the Director of the Department of Ecology and the Governors’ Office to ensure policy-makers with the power to make choices are involved, not just the staff who recommended the current unacceptable version of the COBI SMP.
Dennis D. Reynolds
DENNIS D. REYNOLDS LAW OFFICE