The two main issues raised by Preserve Responsible Shoreline Management (PRSM) in its suit against the City of Bainbridge Island and the DOE are the constitutionally prohibited taking of private land in the form of buffers, and the restrictions on normal protective bulkheads without just compensation.
The Supreme Court established in the Nollan and Dolan cases that buffer requirements must have rough proportionality and nexus to the impacts of the NEW development.. The burden is on the City to prove that buffer requirement has a direct connection with the NEW development, and that the buffer requirement is roughly proportional to the NEW impact.
I have emphasized NEW because the City cannot show that reconstruction of an existing shoreline home would produce an impact necessitating a permanent buffer, a conservation easement, or the planting of native vegetation and trees where none existed. The city and DOE will lose on these issues that have already been decided by the Supreme Court.
This is really common sense. The buffer requirements are a taking of private land for public benefit (wildlife habitat) without just compensation. Just like the government is prohibited from taking your extra bedroom or your spare car for some good public purpose they are also prohibited from taking you normal residential use of your land.
From my understanding, when you or your new buyer decide to rebuild your house or add a second story, the city cannot require you to move the house back or give-up use of your yard for a buffer because there is no NEW impact. This is one of the big issues to be decided by the court.
The SMP prohibits property owners from building a “normal protective bulkhead” until their property has eroded to the point that their yard is completely gone and the house is threatened. This violates the Washington State constitution. The state is requiring you to contribute your yard (land) to the beach for a public good without compensation.
The State of Washington Constitution says, “No private property shall be taken or damaged for public or private use without just compensation having been first made… The SMP and DOE prohibition on constructing a “normal protective bulkhead” to protect land is for the purported public purpose of providing gravel for the beach. Property owners have a constitutional right to protect their property from erosion.
Did you know that the only place in the whole world where the concept that beaches are unstable and need to be fed by eroding the uplands is in Puget Sound. We are “special”. As Wikipedia says “The geomorphological term feeder bluff is not a standard, widely accepted geologic term; its use has been limited to the Puget Sound region.”
PS – Has anyone ever looked at the beach in front of a bulkhead. That is where the fine gravel settles (not erodes).
Back to the PRSM case. We will all soon hear the decision of the Growth Management Hearings Board (GMHB), which is, likely to rule in favor of the City and DOE. What would you expect? It is one government body ruling on what another government body decided. Note: The GMHB cannot and will not rule on the constitutional issues mentioned above.
By Gary Tripp