Let’s talk shoreline planning and property rights

Kitsap County’s shoreline planners have completed a Draft Shoreline Jurisdiction Map (PDF 1.5 mb) and a Preliminary Draft Public Participation Plan (PDF 68 kb) and are now focused on setting up a new committee, called the Shoreline Management Program Update Task Force.

More than 100 people with interest in shorelines have expressed a willingness to serve on the task force. From that number plus others not yet identified, shoreline planners hope to create a group of about 25 people to represent various interests and expertise.

As part of the selection process, those interested will be asked to fill out an application form. It is the county’s standard volunteer form enhanced with a focus on shoreline issues. Patty Charnas, the county’s natural resources manager, had hoped to post a notice on the county’s Web site today and get the applications out to those who signed up with their e-mail.

Meetings are being planned every two weeks, with the first meeting tentatively scheduled for Feb. 25 at Island Lake County Park. Work is scheduled to continue through June of 2011. The evening meetings are expected to last about three hours, and anyone may observe.

Meanwhile, on a related issue, Washington Department of Ecology is trying to quell an attack by property-rights advocates who say the agency is out to eliminate non-conforming structures along the shoreline.

What stirred people up the most was a slide show (PPT 1.9 mb) given by state shoreline managers to local planners and others in 2007. One slide lists the “basics” of nonconforming structures and uses, which are those that don’t meet the latest regulations, including setbacks and buffers:

  • Lawfully established or built prior to effective date of SMA/SMP
  • Do not conform to current SMP
  • Use – no longer allowed in environment
  • Structure –inconsistent with bulk, setback, height, density
  • Not consistent w/ community vision
  • Can continue to exist
  • Long term goal: eliminate
  • Nonconformity cannot increase
  • Abandoned: NC status expires
  • Reality: many exist for a long time

Some people have focused more on the item that says “Long term goal: eliminate,” and less on the one that says “Reality: many exist for a long time.”

Gordon White of Ecology was concerned enough about what he called misleading statements that he wrote a blog item on EcoConnect.

White says:

“Claims are being made that Ecology and local governments want to intrude on the use and economic value of private property, stifle the economic vitality of our communities, and infringe on your constitutional rights — all in the name of effective environmental conservation.

“Many of these concerns are being voiced in a way to create alarm rather than seeking to understand the facts of the situation. And, unfortunately, some pretty important facts are being inaccurately portrayed.”

Read the blog item for the full discussion. After talking to people on all sides of the issue, I believe it is important for property owners to protect their rights, which means making sure that they don’t abandon their property. Property owners should understand that the established uses of their property cannot be reduced by government without compensation, unless there are health and safety concerns.

On the issue of expanding your house or yard, much will depend on local ordinances — which is why shoreline planning is no small thing. I understand that most jurisdictions allow expansion away from or parallel to the shoreline or by building upward, so long as the structure gets no closer to the water. Is that a reasonable approach?

One area of concern is what happens if someone’s home is destroyed by fire. What do Fire Insurance claims allow? Can it be rebuilt?

Whatcom County, the first county to complete an update of its Shoreline Master Program (PDF 2.1 mb) under new guidelines, does allow for rebuilding:

“Non-conforming structures that are destroyed by fire, explosion, flood, or other casualty may be restored or replaced in kind if there is no feasible alternative that allows for compliance with the provisions of this Program; provided that, the following are met:

1. The reconstruction process is commenced within eighteen (18) months of the date of such damage; and
2. The reconstruction does not expand, enlarge, or otherwise increase the nonconformity, except as provided for in subsection (E) above or (H) and (I) below.”

This issue of destruction is worth keeping an eye on.

I would not be surprised if some individual Ecology officials would like to see nonconforming structures eliminated over time, but most understand the legal protections written into the Shoreline Management Act.

“People who work at the Department of Ecology are property owners, too,” spokesman Curt Hart told me. “Some of us are shoreline property owners. We don’t want people’s rights stripped any more than anyone else.”

Likewise, many shoreline property owners would like to improve the natural habitat and functions of their property to benefit fish and wildlife — as long as it is voluntary.

Regulations will continue to be written in an effort to protect existing shoreline functions. State and federal dollars probably will be used to improve habitat where feasible. But, no matter what the government does, the improvement or degradation of shorelines remains largely the choice of the property owner.

By the way, Ken Sethney, chair of Bainbridge Shoreline Homeowners, offers a useful discussion on this topic.

5 thoughts on “Let’s talk shoreline planning and property rights

  1. “Property owners should understand that the established uses of their property cannot be reduced by government without compensation, unless there are health and safety concerns.”

    Christopher,

    If this were true, few property owners would object. The truth is that native vegetation buffers are a reduction of the owner’s use of their property. Limitations on rebuilding damaged or structures such as bulkheads, docks, houses and outbuildings, are among the changes proposed by DOE and local planners. They all reduce the owner’s use and enjoyment of their property.

    No compensation is contemplated, in spite of the fact the rationale for these regulations is that “the environment” is enhanced and therefore everyone benefits.

    John

  2. I don’t think we disagree. The key is “established uses.” If you legally built something within an area that is now a buffer, the government can’t make you remove it. I agree that new rules could further restrict what might be built in the future.

  3. Perhaps we have a more fundamental disagreement, perhaps not.

    I believe that any regulation initiated after the purchase of a piece of land or the lawful construction a home (e.g. imposition of a native vegetation buffer) is an illegal taking.

    For example, I believe that I should have the right to plant grass and ornamental shrubbery on my property and you should have the right to plant salal and salmonberry on yours.

    Unless I am mistaken, this is one of the constitutional rights that countless Americans have fought and died for, one of the primary reasons that the USA exists.

    If we as a nation choose to enact environmental policies, we should all bear the costs. Individual homeowners shouldn’t be unfairly “taxed” for the good of all.

  4. My blog entry didn’t really get into illegal takings. The courts have ruled that governments can regulate the use of property within limits without violating the owner’s constitutional rights.

    What I was trying to describe is what a property owner can do to protect his existing uses and what to watch for during upcoming shoreline planning.

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