Shoreline conflict and confusion have not yet abated

When it comes to environmental protections for shorelines, local critical areas ordinances continue to be a source of controversy.

The latest development involves a letter from state Rep. Jan Angel asking the state departments of Ecology and Commerce to quit giving legal guidance to local agencies. See my story in today’s Kitsap Sun.

It seems clear from court decisions and legislative actions that the Shoreline Management Act will provide long-term regulations for properties within 200 feet of the shoreline. This law — unlike the Growth Management Act that spawned critical areas ordinances — requires local shoreline plans to be approved by the Washington Department of Ecology.

But the immediate conflict involves what regulations should apply until local shoreline master programs are updated, a process under way for most Puget Sound cities and counties.

The practical aspects are that critical areas ordinances, updated within the past few years, generally include more restrictive regulations, such as larger buffers, in comparison to shoreline plans, most of which were drafted in the 1970s with updates that vary by jurisdiction.

Legally, the issues become complicated. Angel’s position appears to be that court rulings direct local governments to fall back to rules listed in the shoreline master programs until new shoreline plans are approved. Read her letter to Interim Ecology Director Polly Zehm (PDF 172 kb).

Ecology’s position seems to be that local governments should not throw out rules developed in their critical areas ordinances until the shoreline plans are updated.

I should point out that Brian Hodges, an attorney with Pacific Legal Foundation, maintains that Kitsap County would be putting itself at legal risk if county officials continue to process shoreline applications under the Kitsap County Critical Areas Ordinance. Hodges was the prevailing attorney in a lawsuit brought by Kitsap Alliance of Property Owners. County officials say they will appeal the ruling to the Washington State Supreme Court.

As for Ecology’s updated “guidance,” the reasoning goes as follows. See Ecology’s Web site for the complete analysis.

“On June 10, 2009 the Washington State Supreme Court issued its final ruling in Futurewise et al v. Western Washington Growth Management Hearings Board et al., 164 Wash.2d 242, 189 P.3d 161. This case addressed protection of critical areas that are within the jurisdiction of the Shoreline Management Act. Specifically, the Supreme Court was asked to interpret Engrossed Substitute House Bill (ESHB) 1933, which passed the legislature in 2003. The case is commonly referred to as the “Anacortes case” because that city’s critical areas ordinance (CAO) is the topic of the decision….

“In the Anacortes case, the Supreme Court issued a 4-1-4 decision. The Court issued two opinions — a “lead” opinion and a dissenting opinion, each supported by four justices. The ninth (and deciding) justice concurred with the lead opinion with the stipulation that her signature supported “result only.” This deciding vote was unaccompanied by an opinion.

“Due to the nature of this split decision it was not clear whether the Board decision applies beyond the City of Anacortes. It takes a majority of justices (in this case, five votes) for a Court opinion to establish a legal precedent that is binding on subsequent cases. Here, there is no majority Court opinion beyond reinstatement of the 2005 Board decision, and neither of the Court opinions endorsed the Board’s reasoning in the Anacortes decision. In addition, other recent Supreme Court decisions have stated that Growth Boards decisions resolve disputes related to specific local government actions under the Growth Management Act, but do not establish policy.

“In September 2009, the Court of Appeals Division II issued a decision in Kitsap Alliance of Property Owners et al v. Central Puget Sound Growth Management Hearings Board et al No. 38017-0-II. This decision involved Kitsap County’s update of Critical Area provisions in the Shoreline area. The decision relies on the June 2009 Supreme Court decision discussed above. Specifically, Division Two concluded that, when the Supreme Court cannot garner a majority view for resolving an issue, the position of the court is the position of a majority of justices concurring on the narrowest possible grounds. Here, reinstatement of the Anacortes Growth Board decision was the narrowest possible grounds for five justices’ concurrence. Thus, Division Two applied the Growth Board decision to the Kitsap County CAO.

“As a result, the court remanded the matter to Kitsap County to do its planning for shoreline critical areas under the SMA rather than the GMA. The court did not address the issue of whether the County’s prior CAO continues to apply until the SMA planning effort is complete. However, the Growth Board decision in the Anacortes case held that prior CAOs remain in effect until the SMA planning is complete. Since Division Two found that reinstatement of the Growth Board decision was the “decision” of the Supreme Court, it is our position that prior CAOs do remain in effect until a local jurisdiction completes its planning under the SMA….

“First, it is our position that neither decision affects critical areas ordinances that were adopted prior to the effective date of ESHB 1933 (2003). Those ordinances remain in effect.

“Second, it is our position that CAOs that were adopted after the effective date of ESHB 1933 and are not currently subject to a challenge are valid and remain in effect. This is based on the GMA’s requirement that CAOs are presumptively valid and must be challenged within 60 days of their enactment for a GMHB to determine that the CAO is invalid. If the CAO was not challenged within 60 days or if the appeals have been completed, then local governments are not required to revisit the critical areas protections contained in those ordinances.

“Third, it is our position that, moving forward, local governments that are currently updating their protections of shoreline critical areas should do so under the SMA rather than the GMA. This can be done either as part of a comprehensive SMP update or as a stand-alone amendment that complies with the guidance that Ecology has issued for stand alone amendments. However, cities and counties should be careful that the adopting ordinance for any CAO updates clearly ensures the existing CAO remains in place for critical areas within Shorelines until superseded by an Ecology-approved SMP update.

“Fourth, local governments have the authority and the obligation under the SMA and their existing SMPs to review and condition project proposals in the shoreline area to achieve consistency with the SMA’s policy objectives, including protection of shoreline resources. The legislature directed in ESHB 1933 that local shoreline master programs provide protection of critical areas in shorelines at least equal to the protection provided by their CAO (RCW 36.70A.480(4))….”

2 thoughts on “Shoreline conflict and confusion have not yet abated

  1. No surprise here. You link to Jan Angel’s letter and mention Brian Hodges en passant, but you quote legal advice from DOE verbatim. Isn’t the point that DOE has no business issuing legal advice?

    I think Rep. Angel was right to ask the Attorney General for his guidance on these matters. Legal advice to state bureaucrats is part of his job. This is especially true when court decisions lead to fuzzy logic.

  2. I thought I was helping people to understand Ecology’s reasoning by quoting from selections of the guidance. I put these quotes at the end of the entry (where you click to continue), so people could ignore it if they weren’t interested.

    The positions of Jan Angel and Brian Hodges are fairly easy to summarize: If I understand them, they believe the court ruling directs local governments to fall back to the shorelines master programs.

    I really have no idea which side is right, but we’ll see if the Attorney General’s Office switches positions as a result of Angel’s letter.

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