UPDATE #2, Oct. 20
Kitsap County commissioners have decided to appeal the latest court ruling to the Washington State Supreme Court. See the story I wrote for the Oct. 20 Kitsap Sun.
UPDATE, Sept. 25
Kitsap County commissioners have decided to ask the court to reconsider its ruling that would invalidate the county’s Critical Areas Ordinance when it comes to shorelines. See the story I wrote for today’s Kitsap Sun. I will have more details as they become available.
While Kitsap County officials gear up to rewrite the county’s Shoreline Management Master Program, they have been handed a hot potato they cannot ignore.
As I describe in a story in today’s Kitsap Sun, the Washington State Court of Appeals has thrown out the county’s shoreline buffers written into law when the county commissioners updated the Critical Areas Ordinance.
Property-rights advocates feel vindicated, and rightfully so. They have spent their own money — more than $100,000 — to fight a county they feel should be standing up for their rights. (See Karl Duff’s column from Feb. 25.) Meanwhile, the county uses public money to fight them back. Victory is sweet for the winners, but it comes at a price.
I hate to say it, but that’s the way things go. When environmental advocates win, they also wonder why they have wasted money battling the government. And if you are a government official, you try not to lose to either side — which is not easy in a case like this, because both sides were suing them at the same time.
Supporters of property rights have many grievances, and they have a right to speak up. But this week’s court decision must be kept in perspective.
Did the county commissioners violate private property rights when they increased shoreline buffers? Did they rely on the wrong scientific studies? Did they mistakenly apply uniform buffers when they should have considered the ecological value of each shoreline segment?
Maybe, maybe not. But the court never got to those questions. Let me recount the history.
Four years ago, when the county was updating its Critical Areas Ordinance (see Title 19), the commissioners essentially decided to leave 35-foot shoreline buffers in place until they updated the Shoreline Management Master Program (see Title 22). At that time, they thought the update would be just a year or two away.
The Central Puget Sound Growth Management Hearings Board ruled that the commissioners could not follow that course of action, because such buffers would not adequately protect habitat for salmon, some of which are listed under the Endangered Species Act.
So the commissioners went back to the drawing board and approved new shoreline buffers of 50 feet for urban areas and 100 feet for rural and semi-rural areas. They said the buffers would get closer scrutiny and might even be reduced during the shorelines plan update.
Those buffers were challenged on multiple grounds by the Kitsap Alliance of Property Owners. KAPO’s arguments were rejected by the hearings board (which was not allowed to address constitutional issues) and by Superior Court Judge Craddock D. Verser, who ruled that the county had followed “a reasoned process to address the necessity of protecting the identified functions and values” of critical areas. See my story of July 2, 2008.
That was before the State Supreme Court handed down a decision that interpreted the intertwined Growth Management Act and Shorelines Management Act as saying shorelines rules can be changed only by amending the county’s shorelines plan. See my story from Aug. 1, 2008.
And that was the controlling factor in this week’s decision. The county commissioners — and KAPO — were right the first time when they tried to delay any significant action on shoreline buffers. The appeals court acknowledged the confusion created for cities and counties by the Legislature and the State Supreme Court. You can review the comments in my story today or read the Appeals Court opinion for yourself.
Why does it matter whether the buffers are approved under one law or another? Besides the legal process, it is important to understand that the laws are distinct in their philosophies and procedures.
The Growth Management Act is a newer law, balancing the goals of allowing development and protecting property rights against the goals of protecting the environment and preserving rural areas. The county approves its plans and ordinances — including the Critical Areas Ordinance — subject to review by one of the growth hearings boards appointed by the governor.
The Shorelines Management Act lays out permitted uses along with specific provisions for protecting the shoreline environment. Some say it is more protective of property rights. The county approves its shorelines plan, subject to a veto by the Washington Department of Ecology. In fact, Ecology has the right to deny any shorelines permit approved by the county.
After the Supreme Court ruled that only shorelines plans can set regulations for shorelines, I was told by one or more county officials that Kitsap County might still have some hope of prevailing. Unlike most counties, it turns out that Kitsap’s shorelines plan does not list buffers when it comes to development. Instead, the shorelines plan points people to the Critical Areas Ordinance to find the required buffers — so there really is no conflict between the two.
When it came to the court ruling, I guess that argument never got off the ground, given all the other facts in the case.