The Kitsap County Association of REALTORS® filed a legal action with the Central Puget Sound Growth Management Hearings Board to intervene in a Petition For Review between Preserve Responsible Shoreline Management, et. al., v. City of Bainbridge Island and the Washington State Department of Ecology.
The Central Puget Sound Growth Management Hearings Board has ruled in favor of the Kitsap County Association of REALTORS® Motion to Intervene. A hearing on the merits of the case was held by the Board earlier this week. A decision is expected within the next few months.
The Kitsap County Association of REALTORS® Cause of Action
· The Shoreline Management Act embodies a legislatively determined and voter approved balance between protection of state shorelines and development. The City of Bainbridge Island Shoreline Management Program must be measured against this standard. However, the city’s update mandates single family homes as “nonconforming,” stripping them of their preferred status and labeling them as illegal, but tolerated for now. Applying this label violates the state guidelines which prescribe protective – not retroactive – regulation. The balancing policies of the Shoreline Management Act have been jettisoned in favor of shoreline protection over preferred uses, which is contrary to law.
· The updated SMP has a narrow, predetermined focus to unduly restrain development and force restoration under the guise of achieving “no net loss.”
· The articulated purpose of the city is to act on perceptions that the health of shorelines is best protected by replacing existing shoreline management regulations in favor of shoreline protection regulations. These regulations force property owners to build far away from the shoreline and further render existing development nonconforming without regard to state law. The illegal result is undue regulation of exempt activities and the phasing out of homes and appurtenant structures near the shoreline over time.
· The burden is on the City and Department of Ecology to justify the regulations embodied in the SMP. State guidelines allow changes to the SMP only if the City can show that they are “…deemed necessary to reflect local changing circumstances, information, or improved data.” The record is devoid of evidence to support a determination that the revisions are necessary.
· The City cannot meet the required nexus and proportionality showing for protection mechanisms such as buffers, setbacks, and vegetation conservation areas or set asides.
· The City cannot condition issuance of exemptions via “no net loss” principles required of applicants for shoreline substantial development permits.
· No Net Loss is applied to exempt activities and the applicant has the impossible burden to show “no resulting adverse impacts on shoreline ecological functions or ecosystem wide processes.” The city’s reliance on No Net Loss creates a fundamental, pervasive inconsistency with the Shoreline Management Act. The City is obligated with respect to critical areas to measure “no net loss” against state law to “minimize impacts.” The Shoreline Management Act requires sustaining shoreline natural resources, not to prohibit any any all possible impacts. There is no evidence that system wide ecosystem processes and functions will be significantly affected by allowing traditional uses of the shorelines to continue under the city’s existing regulations.
The Kitsap County Association of REALTORS® is represented by attorney Dennis Reynolds of Bainbridge Island.