| The city of Bainbridge Island was planning to update its Critical Areas Ordinance (CAO) by the end of this year — until a ruling by the state’s Supreme Court on July 31 put a halt on the proceedings. The ruling will likely have wide-reaching implications that will affect all the jurisdictions in the state — including in Kitsap County, where the CAO has already been to court, and could have arguably cost former Central Kitsap Commissioner Patty Lent her job.
The 5-4 decision states that the Shoreline Management Act (SMA), not the Growth Management Act (GMA), must be applied to Puget Sound shoreline critical area planning. That means local governments don’t have jurisdiction over the shoreline critical areas, which must be approved by the state Department of Ecology under a shoreline master program instead — a process that takes much longer time than CAO regulations developed under the Growth Management Act.
Bainbridge Island’s shoreline protection revisions were initiated partially due to a petition filed by the Suquamish Tribe with the Central Puget Sound Growth Management Board, saying the city’s existing regulations (adopted in 2005) to protect marine habitat need to be more stringent. A change that was considered by the city would have mandated a 200-foot buffer along all shorelines, with some building allowed in the second 100-foot portion (further from shore) as long as habitat conservation measures are followed.
A public hearing on July 30 was attended by more than 200 people and was described as one of the largest showings in recent years at city hall. The city had planned more hearings in September before the Supreme Court ruling came down.
More stringent regulations were also being sought by People for Puget Sound and the Bainbridge Alliance for Puget Sound, whose representatives say that “irresponsible development interests” are trying to pressure the city council from protecting the city’s marine resources.
A group of waterfront property owners has organized in opposition. The group, called Bainbridge Shoreline Homeowners, has about 1,500 people on its mailing list, according to its attorney, Dennis Reynolds. He said the group feels generic, one-size-fits all buffers are not the solution.
“Our group thinks there’s an obsession with staff about a prescriptive solution and we think there are lots of way to protect shorelines… and have more cooperation than just be told, ‘Ye will march,’” he said in an interview. “The bureaucracy likes generic set-aside buffers because they’re easy to manage… The people on Bainbridge Island very much care about shoreline environment. The debate is how to protect it.”
In a 25-page letter to the city on July 29, Reynolds questioned why the Suquamish Tribe petition wasn’t defended by the city instead of the city “acceding without contest.” “…Not all shorelines are truly ‘critical’ areas. Over-designation simply deflects attention from other needs, e.g., good municipal storm water control,” he wrote.
City planner Steve Morse said the city’s land-use committee is recommending tabling the CAO ordinance, but will wait first to see if the court ruling is asked for reconsideration by the Aug. 25 cutoff date (after press time). He said all the work done so far and the collected comments will be rolled into the city’s shoreline master planning process that will not be in effect until 2012. The city has until 2011 to create the plan, which then must be approved by DOE. Asked how the court ruling impacts the tribe’s petition, he said the city and tribe lawyers are in discussion. A representative from the tribal council could not be reached for an interview by deadline.
The state Supreme Court’s ruling involves the city of Anacortes, which adopted its first shoreline master plan in 1977. The plans were mandated by the Shoreline Management Act of 1971 as a balanced approach among private ownership, public access, and environmental protection of shorelines. The act required the plans to be updated every seven years, and be approved by Ecology before implementation. Anacortes has since gone through the SMA process.
A 1995 amendment to the Growth Management Act of 1990 has required local governments to designate and protect critical areas within their jurisdictions, as well as to use “best available science” (an ambiguously contentious term widely disputed by environmentalists, property right advocates and planners alike). Many jurisdictions have been following the critical area ordinance process under the GMA (which has extra levels of protection) for its shoreline planning.
The state Supreme Court ruling says shorelines fall under the SMA based on a 2003 law passed by the state Legislature. In its dissenting opinion, however, Justice Tom Chambers wrote on behalf of the minority, “The majority’s conclusion today is clearly driven by the belief that the Shoreline Management Act of 1971 (SMA), chapter 90.58 RCW, is wiser and more attractive than the GMA… Admittedly, harmonizing the SMA and the GMA is a challenge, both for local governments and this court. However, I must dissent because our role when interpreting statutes, which is all we are called upon to do today, is to implement the intent of the legislature. It is not to evaluate the merits of the legislation.”
The state Supreme Court decision overturns a ruling by Thurston County Superior Court and reinstates a decision by Western Washington Growth Management Hearing Board to a challenge brought by the environmental group Futurewise (formerly known as 1,000 Friends of Washington), among other parties.
It is yet unclear how the ruling will affect other local jurisdictions. A call to the Kitsap County prosecutor’s office, which is reviewing the ruling to see how it may affect the county, was not returned.
People for Puget Sound said in a press release following the ruling that the decision will potentially delay critical area protections until governments update their shoreline master programs between 2009 and 2014, which could result in “further degradation of habitat and water quality.”
Kathy Fletcher, executive director for the organization, stated, “This surprising interpretation makes it that much tougher to save Puget Sound by 2020. The Puget Sound Partnership needs to address this issue right away.” The Puget Sound Partnership is a coalition of citizens and other stakeholders appointed by Gov. Christine Gregoire, who signed a measure in 2007 designed to clean up and restore Puget Sound by 2020.
An attorney for Kitsap Alliance of Property Owners (KAPO), Brian Hodges of Pacific Legal Foundation, said the court decision settles an issue central to KAPO’s appeal to a recent ruling in favor of Kitsap County. The July 2 ruling by a Thurston County Superior Court judge rejected KAPO’s argument that the county’s CAO, revised in 2007, violates property rights. The group said the county should not be designating all shorelines as critical areas.
The revision of Kitsap County’s Critical Area Ordinance increased shoreline buffers from 35 feet to as much as 100 feet in some cases. The county commissioners adopted the regulations despite a recommendation by the county’s Planning Commission (in a 6-3 vote) to not adopt them as written and send them back to the drawing board.
“Our argument (to the court) was that in 2003, the Legislature amended the Growth Management Act to make it clear the Shoreline Management Act was the exclusive means to regulate shoreline properties,” Hodges said. He said the court ruling states exactly what the group’s argument was, that local governments can’t regulate shorelines. He said the deadline for filing a brief in KAPO’s appeal is in a couple of months, at which time the group will seek a speedy review in light of the current ruling.
Reynolds, the Bainbridge Island’s residents’ lawyer, made a similar argument to the city council in a letter dated two days before the state court ruling. The letter stated, “The Owners Group opposes enactment of Ordinance No. 2008-12 in any form. A fundamental basis is their strong belief that regulation of shoreline use and development is exclusively handled under the Shoreline Management Act (the “SMA”), and not the Growth Management Act (“GMA”).” The letter went on to list the ordinance’s many flaws.
Reynolds told the Kitsap Peninsula Business Journal his clients believe they can convince the city council to take a more collaborative approach that also emphasizes voluntary restoration. “I think the city council gets it — they’re interested in a dialog and willing to listen,” he said. If the city council follows the staff lead instead, Reynolds said, “I’ll take them to court and I’ll win.”
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