Colonial Americans rebelled for freedom from an oppressive government. Now shoreline homeowners find themselves engaged in the same kind of battle against a government – this time, remarkably, the City of Bainbridge Island. In the Declaration of Independence our forefathers pronounced that all men have the right to “life, liberty and the pursuit of happiness.” Our battle against the City is a battle for liberty and the freedom to pursue happiness – on our very own land.
For, this city has enacted unjust laws that purport to regulate, in the words of the SMP, all “human activity” in the 200- ft. wide “shoreline jurisdiction.” For some people, this “shoreline jurisdiction” is their entire property. The SMP states that before any proposed human activity in the shoreline jurisdiction can take place, the City must have given its pre-approval. Failure to get City pre-approval means, first, a $500 fine and then, if done again within 12 months, a $1,000 fine and/or 30 days in jail.
How can an individual say he has “liberty” or can engage in the “pursuit of happiness” when the SMP says it has control over everything he can do on his land.
The City hasn’t limited its regulations just to the buffer, where there is at least some degree of scientific justification for keeping the area free of human activity. Instead, the SMP purports to control the entire 200-ft. “shoreline jurisdiction.” And whereas the State SMA only deals with new development, the City regulates activities having nothing to do with new development. In addition to broadly requiring City pre-approval for all “human activity,” the SMP specifically requires pre-approval for normal maintenance of homes and gardens. We do not believe that the City can require an application for normal activities that are expressly allowed by the property’s zoning. Besides, the State’s SMP Guidelines specifically state that an SMP is not to be applied retroactively, whether to existing gardens or otherwise. Requiring City pre-approvals for any maintenance of an existing house or garden is a direct violation of this State provision.
There is no real rationale for the City’s regulation of the entire 200-ft. area; the City’s own scientists said that a 30 ft. buffer was adequate to protect the shoreline from residential use. Nevertheless, on the basis of what it described as “public policy” intended, the City said, to reduce the number of homes in the buffer, the City increased the size of the buffers from 50 ft. to 75, 115 and 150 feet. The goal might have sounded good, but the means used to effectuate that policy was not reasonably likely to do so. And it didn’t. In litigation, the City now admits that the bigger buffers increased the number of homes in the buffer from 39% to 50%. A regulation based on policy is only constitutionally valid if it is reasonably likely that the regulation will achieve the policy goal; here, common sense tells you that bigger buffers mean more homes will be trapped in the buffer, not less.
The SMP takes the right of private landowners to protect their land with a bulkhead. Nowhere in the case that this City of Bainbridge lost just 15 years ago, Biggers v. City of Bainbridge Island, did the Washington Supreme Court say that the City could take away this right; it said just the opposite. But, to get a construction permit, the SMP requires you to sign a covenant on title prohibiting a bulkhead for 100 years; this is what the U.S. Supreme Court has called an “unconstitutional condition.” It amounts to the taking of an interest in property – a 100-yr. easement – for which the City is not paying just compensation. In addition, completely unrelated to new construction, the SMP prohibits new and replacement bulkheads in the following circumstances: on feeder bluffs where people need them the most, in critical areas and anywhere that erosion is “unrelated to water.” Taking the right to protect an individual’s land without compensation violates both the Washington Constitution and U.S. Constitution.
In similar fashion, the SMP takes an interest in property – an easement in perpetuity– when, to get a construction permit, it requires a land owner to execute a conservation easement, recorded on title, that forever binds the property to native vegetation. This requirement constitutes yet another “unconstitutional condition.”
One of the most cruel takings by the SMP involves the people of Pt. Monroe, whose normal, residential use of their homes has been designated by the City as a nonconforming use because their overwater houses are ‘located where that no house can be built in the future.’ This same ‘logic’ could easily be applied to houses located in the new, bigger buffers (that is, 50% of all shoreline homes). The implications of being designated a “nonconforming use” are horrendous. You cannot repair or rebuild your home if the use is deemed nonconforming. If your house is unoccupied for 12 consecutive months, the SMP says that you have lost your right to ever occupy that home again – you and anyone else. When the British appropriated private homes, colonial Americans fought. Is it any wonder we are fighting now?
The SMP is supposed to be based on the best available and applicable science. But the science underlying the City’s buffers is science that comes from cattle feed lots and commercial crop production, and from streams in the Midwest. This science was misapplied to justify buffers that are far larger than is actually warranted by single-family residential use. The City chose to ignore the newer and more applicable science that was presented to it by a Yale Ph.D. with years of experience in Pacific Northwest ecological research. This constitutes a violation of the State SMA and a failure to use relevant science. Science from streams in the Midwest with cattle feedlots and commercial crops is simply not relevant to single-family residential use on the Puget Sound.
Quite simply, the Bainbridge SMP constitutes an unreimbursed taking of private land to create a native vegetation conservancy. Each native plant the homeowner would like to remove, but is prohibited from doing by the SMP, and every native plant the homeowner is forced to plant in the 200 ft. shoreline jurisdiction, constitutes a “physical invasion” of the individual’s land, as characterized by the U.S. Supreme Court. Eventually, native vegetation takes over the lawn and it takes the property owner’s right and ability to use the land for any simple lawn sport, such as croquet. The right to use the property has a clear market value, a market value the City has failed to pay.
The SMP micromanages all vegetation in the 200 ft. area, alive or dead. Outside the buffer, this constitutes a violation of the First Amendment’s freedom of expression. What and where you put vegetation on the canvas of the land is every bit as inspired by the artistic instinct as is paint on a canvas. If there was no art in gardens, why would anyone pay admission to see plants they have already seen before? It is the arrangement that makes art, as well as the colors used by the garden artist; this is an expression of the human soul. The SMP supposedly dictates the identity and location of vegetation based purely on the “ecological functions” of plants; this prohibits all use of the land for artistic purposes – a constitutional violation.
The SMP takes the shoreline homeowners “right to access water,” which one court has described as being perhaps the most valuable right a property has. The SMP does this by prohibiting docks, piers and floats both by certain area designations and based on the physical characteristics of the shoreline and the homeowners properties.
The SMP labeling of all “existing homes” as nonconforming takes market value from property owners because of what the SMP refuses to allow nonconforming homes to do. A nonconforming home cannot be repaired/rebuilt under the SMP if it was destroyed by an accident – only damage by an Act of God allows you to repair/rebuild. Nonconforming homes cannot be expanded by more than 25% of the original footprint or more than once; even a 600 sq. ft. cabin is limited to a maximum size of 750 sq. ft. These are precisely the kinds of nonconforming restrictions that assessors, banks and buyers don’t like.
To build a new house, the house must be farther from the water and landscaping must consist of tall trees and bushes with a 65% vegetation canopy – in front of the water view as well as everywhere else. To get a construction permit, the SMP requires that you sign a conservation easement, committing the property to this type of landscaping “in perpetuity,” and you must secure that commitment with a surety bond for a minimum of 5 years; (this is in addition to the surety bond you have to post for the house). This conservation easement over the 200 ft. area essentially takes your “right to use” the property for any purpose you choose: your use must be to grow native vegetation.
Plus, you give up your “right to exclude others” from your land: the SMP allows garden inspectors to come on your property at any time without notice and without your consent. And, of course, to get a construction permit you also have to sign a covenant recorded on title prohibiting any no bulkhead on the property for 100 years. Many buyers usually want to either remodel or rebuild; with all these limitations the SMP quite simply makes Bainbridge waterfront property unattractive.
Existing property owners not engaged in any construction activities are worthy of the same protections from overreaching governmental regulations that the U.S. Supreme Court has extended to people with construction permits in the Nollan and Dolan cases. That is, to justify the taking of a property right, there must be a logical relationship between some kind of damage that is being done to the shoreline by that individual and the kind of property right being taken. Under Nollan, to justify all the SMP pre-approval requirements, there should be proof of some quantifiable damage to the shoreline that is not being addressed by the buffers. Under Dolan, the taking of property rights and the amount of restrictions should be roughly proportionate to the amount of damage that is being caused by normal residential use. In fact, existing homeowners not involved in construction deserve even more protection than those with construction permits; existing homeowners aren’t getting anything in return for all these takings and restrictions and they aren’t bringing in the bulldozers.
In the words of U.S. Supreme Court Justice Oliver Wendell Holmes, the Bainbridge SMP simply “goes too far.” Holmes used this phrase to describe a Fifth Amendment “taking” of private property without just compensation. The City has taken property interests and rights through SMP regulations that are unduly oppressive, without first paying just compensation as required by the Washington Constitution.
How can people on this Island allow this to happen? If the government is allowed to do this to one group of homeowners, what keeps it from doing it to others?
Please help us in our battle against an unjust law. Send your check today to PRSM (Preserve Reasonable Shoreline Management) at P.O. Box 10945, Bainbridge Island, WA 98110. Or make a credit card donation by going to the PRSM website at www.prsm-bi.com. PRSM is a qualified 501(c)(3) non-profit organization so your donations are tax-deductible.