Tag Archives: Shoreline Management Act

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.

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.
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Shorelines battle starts to stir behind the scenes

<i>Hood Canal and the Olympic Mountains from a home on Kitsap County\'s shoreline.</i><br><small>Photo courtesy of Dr. Dale Ireland</small>
Hood Canal and the Olympic Mountains from a home on Kitsap County's shoreline.
Photo courtesy of Dr. Dale Ireland

Planning the future of Puget Sound’s shorelines is under way or soon will be under way among most local governments in Puget Sound.

Some counties have completed the work because of early funding by the Legislature (King and Pierce) and some because they pushed ahead on their own (Whatcom). Some counties started early but have faced delays (Snohomish and Jefferson).

Kitsap County planners started early but focused their efforts on an “inventory” of existing conditions along the entire shoreline. That inventory, which includes prospects for habitat restoration, could be a major tool in the update of Kitsap’s Shoreline Master Program.

Do I need to remind anyone how contentious this issue is likely to become in counties with substantial shorelines?

In Kitsap County, both property rights advocates and environmental groups have already announced that they are getting ready for a fight.

Kitsap Alliance of Property Owners came out recently with guns ablazing: “Kitsap County is getting ready to update its shorelines master program,” KAPO President Tim Matthes says in a postcard to shoreline owners. “You will find very little in the news informing property owners of changes.”

That’s an interesting comment, considering that I have already written two stories before the process even starts. I can tell you now that there will be plenty to write about when this issue begins to boil.

The card also states, “County staff wants to treat every inch of shoreline as ‘critical area.’ They want to prohibit bulkheads, ban docks, force you to replace your gardens with ‘native’ plantings and control what kind of trees you plant, trim or remove.”

I’ll let others respond to those specifics if they wish, but clearly this message is designed to lead the charge into battle.

KAPO is not the only side getting ready for a fight, however. Beth Wilson of Kitsap Conservation Voters recently informed the county commissioners rather forcefully during a recent “Meet the Commissioners” forum that shoreline planning could be the most important issue of the year among the local environmental community.

While Kitsap County planners prepare for two years of work on the Shoreline Master Program, cities in Kitsap County are getting ready for updates as well. There was talk at one time of strong collaboration between the county and the cities, but it appears that jurisdictions are starting to drift apart. It remains unclear whether any kind of coordination will take place.

Kitsap County Planning Commission was briefed on the upcoming planning effort a couple of weeks ago (see Kitsap Sun story, May 20). The county commissioners discussed the same information today.

Some of the key ideas include:
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