Category Archives: SMP Update

Can an administrative agency strip you of your right to put on evidence?

How to destroy constitutional rights:
Step 1: Force property owners to try their cases before an agency that CAN’T DECIDE constitutional issues.
Step 2: If the property owners appeal to a court that CAN decide them, just block the owners from submitting ANY evidence about them.

In Washington state, property owners who want to challenge the constitutionality of a new land-use or critical area restriction must first try their case to the Growth Management Hearings Board—an administrative agency that lacks the authority to decide constitutional issues. Although this requirement was meant to streamline the ordinary types of legal challenges arising from land-use regulation, it is a frustrating and often futile endeavor for anyone asserting constitutional claims. A recent decision from a Washington trial court took that process from the realm of the frustrating to the unconscionable.

In 2014, the City of Bainbridge Island recently adopted one of the most aggressive shoreline protection ordinances in the State. Among other onerous provisions, the City enacted laws forbidding homeowners from gardening without permit approval and generally declaring “all human activity” within 200 feet of a shoreline illegal without government approval. Back in 2014, several shoreline residents challenged the ordinance as violating a number of constitutional provisions in the case Preserve Responsible Shoreline Management v. City of Bainbridge Island.

The case went to the Growth Board first, which unsurprisingly upheld the ordinance against PRSM’s statutory challenges. The case then went to the superior court to hear PRSM’s constitutional claims. That’s where things went terribly sideways. Several of PRSM’s constitutional claims require evidence of the ordinance’s impact on fundamental rights. That type of evidence can be very simple. For example, PRSM offered a brief statement from a local resident that gardening and landscape design is expressive conduct—a statement that could be accomplished in a 3-page declaration.

The City, however, argued that because the case was technically “on appeal” from an administrative agency, PRSM had no right to put on any evidence of its constitutional claims. PRSM called the City out on its nonsense, pointing out that every citizen has a right to put on evidence necessary to prove the elements of a constitutional claim when that claim is properly raised for the first time before the court that has exclusive and original jurisdiction. Without addressing this argument (or the law requiring evidence), the trial court refused to allow PRSM to submit any evidence.

PLF attorneys sought immediate appellate review of the trial court’s decision because trying its constitutional case without the ability to offer the evidence required would be futile. PLF argued that fundamental notions of due process demand that litigants be provided a fair opportunity to put on evidence. The fact that land-use challenges must go through an administrative agency before they can be filed in the superior court does not strip individuals of that fundamental right. Earlier this week, the Court of Appeals granted direct review of this important question. We expect the issue to be briefed and argued by the end of the year.

Pacific Legal foundation Article by Brian Hodges

High Court is asked to review shoreline property set-aside mandate

San Juan Islands

Washington, D.C.; May 10, 2016: Pacific Legal Foundation attorneys are asking the U.S. Supreme Court to decide whether San Juan County, Washington, can force shoreline property owners to set aside large sections of their land as buffers to filter out storm water pollution from other properties, without establishing a link between any specific development proposal and the mandatory buffer set-aside requirement.

Donor-supported PLF is the leading national watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental protection. In the petition for certiorari filed this week, PLF represents Common Sense Alliance, a grassroots alliance of property owners with members who would be harmed by the mandatory buffer policy.

Under the San Juan County ordinance at issue, any permit for development of shoreline property requires the owner to set aside a predetermined amount of land as a buffer with the aim of filtering pollution out of storm water crossing over the property.

The inflexible set-aside formula takes no account of the details of specific development proposals, and has the effect of requiring landowners to dedicate property to filter runoff from other owners’ parcels. Moreover, the agency that heard and denied an initial appeal of the plan acknowledged that there was no certainty that the buffers would function as envisioned.

Nevertheless, the Washington state courts upheld the plan, even though U.S. Supreme Court precedent — as established initially by PLF’s victory in Nollan v. California Coastal Commission — bars land use conditions not tailored to respond to harm from the proposed project.

“This case deals with a perennial problem that property owners face,” said PLF Senior Staff Attorney Tony Francois. “Too often, jurisdictions use their permit authority as leverage to take property without compensation, and without any need created by the proposed project itself.

“We are asking the Supreme Court to review this case, in order to close some loopholes that regulators and lower courts have created in the rule against extortionate permit conditions,” he continued. “Specifically, we’re asking the justices to make it clear that the prohibition applies even to land use conditions that are imposed through a generally applicable ordinance, and even if the property that would be seized might be useful for some general government purposes.”

The case is Common Sense Alliance v. San Juan County. More information, including the petition for certiorari and an explanatory blog post, may be found at:

Can a county turn your land into a water treatment facility without paying?


Nice coastal property you have there. San Juan County would be happy to let you develop it; you will just need to make a "donation" at the office.

Nice coastal property you have there. San Juan County would be happy to let you develop it; you will just need to make a “donation” at the office.

This week Pacific Legal Foundation filed this petition in the Supreme Court of the United States, asking it to decide whether the government can make shoreline property owners give up part of their land to serve as water quality buffers for the surrounding community. This case, Common Sense Alliance v. San Juan County, deals with a perennial problem that property owners face. Government jurisdictions require permits to develop property, and use that authority as leverage to take property which they would otherwise have to pay for. The Supreme Court has aptly described this as an “out-and-out plan of extortion.”

The Fifth Amendment to the U.S. Constitution requires just compensation when the government takes private property. Many Supreme Court decisions hold that the government may only demand property from a permit applicant when necessary to mitigate a harm that the proposed project would cause. PLF litigated some of the most important of these cases. Nollan v. California Coastal Commission, 483 U.S. 825 (1987), holds that government may only demand property as a condition of permit approval if there is an essential nexus between the demand and some harm that the project would cause. Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013) holds that this requirement applies to demands for money or services, just as it does to real property interests, and confirms, as the Court previously held in Dolan v. City of Tigard, 512 U.S. 687 (1994), that the government must also prove that the demand is roughly proportional to the impact.

In Common Sense Alliance, the Washington state court refused to apply Nollan and Dolan to a San Juan County buffer exaction because it was imposed by a generally applicable ordinance instead of made up on-the-fly by a land use planner. PLF is asking the Supreme Court to clarify that Nollan, Dolan, and Koontz prevent government from extorting property owners seeking permits, even when the property demands result from generally applicable ordinances, and even if the demanded property would be useful for general government purposes.

Nice coastal property you have there. San Juan County would be happy to let you develop it; you will just need to make a “donation” at the office.

Pacific Legal Foundation Blog by Tony Francois



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. Continue reading

Opinion: Constitutional issues raised by SMP

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. Continue reading

Kitsap County Association of REALTORS® file to Intevene in the Bainbridge Island SMP Review

KCAR.orgThe 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. Continue reading

Bainbridge Island SMP Hearing Tuesday 10:00 AM – at City Hall

The hearing before the Growth Management Hearing Board on Bainbridge’s SMP will be help at City Hall on Tuesday 24th at 10:00.

The petitioners, Preserve Responsible Shoreline Management, are asking the GMHB to invalidate Bainbridge’s SMP.

See the BI SMP Petitioners’ Reply Brief for summary of the arguments.

Continue reading

Commentary: Kitsap County Social Marketing Campaign To Remove Shoreline Armor (Bulkheads)

Report by Vivian Henderson (My Interpretation)                  January 21, 2015

January 8, 2015, I pulled up the Agenda for the Commissioners January 12, 2015 meeting and discovered an item I thought to be of great concern to shoreline property owners who have a bulkhead.

It was a Grant in the amount of $365,854 for a contract with “Dept. Fish & Wildlife for a Social Marketing Campaign to remove shoreline armoring . . .” On further investigation I discovered that Futurewise – formerly “1000 Friends of Washington” – is also a major player in the program as is Washington SeaGrant.

It appears the only role DF&W plays in this venture is receiving the money from Kitsap County and distributing it according to the terms of the “Grant Agreement.” Actually the money comes from a U.S. Environmental Protection Agency grant.

There is much more to the grant than that. I’m working on getting the facts on the grant. Futurewise, and possibly Washington Sea Grant, are what I call “radical” environmentalists.

Futurewise has always been outspoken and hostile about putting the environment above the needs of mankind. Their disregard for property rights and ­­­­­­­­­­­­­­­­­­­­­­­ choices people have a right to make for their own benefit – like where they want to live and how to commute to and from work are well known by property rights supporters. Futurewise supports issues completely contrary to the issues Kitsap Alliance supports. They support “Smart Growth”, the ”Growth Management Act”, “sustainable development,” etc.  Continue reading

Kitsap County Social Marketing Campaign to remove shoreline armor

The county believes bulkheads (Shoreline Armoring) deprives beaches of their natural sources of sediment and can degrade the ecological functions of the shoreline. The cumulative impact of numerous bulkheads along a reach of shoreline may be long-term, irreversible loss of habitat and increased erosion on the property of others. Kitsap Shoreline Booklet 

The County proposes to spend a $366,000 Bulkhead Removal Marketing Grant from the state Department of Fish and Wildlife to convince 5 shoreline owners to remove their bulkheads.

The purpose of the grant is to persuade 5 homeowners to remove their bulkheads, and substitute a soft bulkhead. Out of a $366,000 grant, $105, 000 goes to the county, $87, 500 goes to Futurewise, $41, 000 goes to Wasgington Sea Grant, $62,000 goes to Geo Tech Surveyors and at best $14,000 goes to an individual home owner.  Continue reading

Bainbridge enacts temporary shellfish farming ban

BAINBRIDGE ISLAND — Worries about beaches crowded with shellfish farms has spurred Bainbridge Island to enact a temporary moratorium on commercial aquaculture.

By a unanimous vote, the City Council last week put a halt to new aquaculture permits for the next six months. The island has no commercial shellfish operations, and none is planned, but the industry is growing fast in the Puget Sound region.

“We’re worried about mussel rafts offshore and oyster bags as far as the eye can see,” said Maradel Gale, a Bainbridge planning commissioner and environmental activist. “The problem is, that’s habitat, and they’re putting all of that on top of it.”

The six-month prohibition gives the city, state, environmental groups and the shellfish industry time to work out a compromise policy. It does not affect the salmon farm near Fort Ward Park off the island’s south end.  Continue reading