Tag Archives: critical areas ordinance

Court finds resolution for conflicting shoreline regs

The conflict between the Growth Management Act and the Shoreline Management Act may be over, as a result of a Washington State Court of Appeals case handed down this week for Kitsap County. (See my story in today’s Kitsap Sun.)

The confusion has affected many cities and counties that believed they were better protecting their shorelines from degradation when they updated their critical areas ordinances, as required by the Growth Management Act. It turns out that the GMA may have improperly stepped into the 200-foot shoreline zone where the Shoreline Management Act presides.

The conflict grew out of a divided Washington State Supreme Court decision for the city of Anacortes, which concluded that only the Shorelines Management Act could govern shorelines. By the time the case was resolved in 2009, many cities and counties had already updated their local critical areas ordinances with stricter shoreline regulations.

Washington Department of Ecology advised local governments to continue using their CAO rules for shorelines, because the divided decision was not binding on other jurisdictions. That advice caused a stir of its own. (See Water Ways, Nov. 3, 2009.) Kitsap County got caught in the crossfire in a lawsuit with the Kitsap Alliance of Property Owners, as the Court of Appeals used the same reasoning in saying that Kitsap’s CAO should not apply to shorelines.

Last year, the Legislature moved to clarify the matter by saying cities and counties may use their CAOs until they complete updates to their Shoreline Master Programs, an effort in which many are engaged now. The law was made retroactive to validate numerous CAOs that were in limbo.

Kitsap Alliance of Property Owners argued that it was unconstitutional for the Legislature to pass a law retroactively to get around a court ruling. However, in the latest case, the Court of Appeals sided with the county, saying the Supreme Court had never ruled authoritatively on the matter because of the split nature of the original decision. That made it legal for the Legislature to clarify the intent of the law.

With the appeals court upholding the Critical Areas Ordinance, the appeals court judges then moved into the meat of the Kitsap County case, which involved the use of “best available science” and several constitutional claims. The court found in favor of the county on all major arguments. One can find the discussion in the second part of the Court of Appeals ruling (PDF 148 kb).

KAPO officials are reviewing the case with lawyers for the Pacific Legal Foundation before deciding whether to appeal the matter to the State Supreme Court.

Letters spell out state’s position on shoreline rules

It’s a pretty good bet that the Washington State Supreme Court will take another shot at deciding when a city or county Critical Areas Ordinance applies to shorelines.

Two conflicting state Court of Appeals decisions have each talked about the uncertainty brought about by the high court’s failure to muster a majority to spell out what happens when a county has updated its shoreline buffers and other regulations through a Critical Areas Ordinance.

The court seems to have determined that local shoreline regulations should be approved through the Shorelines Management Act, not the Growth Management Act. The real question now is whether approved Critical Areas Ordinances can be used until the shoreline updates are complete.

A letter from the Washington State Attorney General’s Office lends support to the idea that some counties may keep using their Critical Areas Ordinance for shorelines, at least temporarily. See my story in Saturday’s Kitsap Sun.

I wrote about this issue when state Rep. Jan Angel, R-Port Orchard and Rep. Joel Kretz, R-Wauconda, wrote letters questioning the “guidance” given to counties by the Washington state departments of Ecology and Commerce. See Kitsap Sun story from Nov. 2.

So far, the Supreme Court has not announced whether it will accept an appeal of the Kitsap County case for review. But it’s hard to imagine, given all the different opinions flying around, that the court wouldn’t want to direct the traffic.

You may wish to read the letters:

Letter from Attorney General Rob McKenna (PDF 3.1 mb)

Joint Letter from Ecology Director Ted Sturdevant and Commerce Director Rogers Weed (PDF 118 kb)

Original letter from Angel and Kretz (PDF 172 mb)

Kitsap County officials are knee-deep in shoreline issues

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.

Continue reading

Good luck untangling shoreline rules after court ruling

The Washington State Supreme Court issued a decision Thursday that has created confusion for many cities and counties. Check out a story I wrote for today’s Kitsap Sun.

Local officials believed they were increasing protections for fish and wildlife living in the shoreline environment when they updated their critical areas ordinances. Thursday’s 5-4 ruling says that only shoreline plans — not critical areas ordinances — can address the shoreline environment.

Every city and county will need to read over their own ordinances and see how this ruling will affect them.

Bainbridge Island, which was in the middle of discussions about updating its shoreline buffers, may back away from that controversy and tackle the issue during the next update to its shorelines plan in 2011. See Tristan Baurick’s story.

Kitsap County faces a somewhat different issue. County officials already conducted hearings and increased shoreline buffers as an interim measure, pending a full update to the shorelines plan, also due in 2011. So shorelines buffers are in place, pending court appeals filed by the Kitsap Alliance of Property Owners. While it is true that the update was forced on the county as the result of an appeal to the Central Puget Sound Growth Management Hearings Board, that may be water under the bridge now.

So what would happen if the Kitsap County Critical Areas Ordinance goes away with respect to shorelines? I’ve been asking around, but the outcome still isn’t clear to me. If you look in the shorelines plan, you will find no mention of buffers at all. Instead, the document directs you to look at the county’s Critical Areas Ordinance.

I recall some years ago that the Department of Ecology wanted Kitsap County to put shoreline setbacks and other numbers into its shorelines plan. But county officials refused, saying that doing so would remove the flexibility to change the setbacks without undertaking a full revision of the shorelines plan.

So if the Critical Areas Ordinance goes away, you will still find a reference to the Critical Areas Ordinance — maybe the previous one before the latest update? If you take the previous one away, you are left with setbacks in the zoning code in effect before that.

I don’t believe that sorting all this out will be as simple as some people think.

The Supreme Court opinion and the dissenting opinion can be found on the court’s Web site.