KAPO wins marine shoreline buffers case

Four years ago, Kitsap County determined there was insufficient science to support increased buffers on marine shorelines.

It was because of a challenge by environmentalists, the Growth Management Hearings Board ordered the county to adopt precautionary buffers as a safeguard for fish under the state’s growth management act.

Shore lands, areas which are within 200 feet of the high tide line, are supposed to be governed by the Shoreline Management Act. But the Growth Management Act also administers “critical areas,” which must be protected using the “best available science.”

In the Sept. 9 case brought on by the Kitsap Alliance of Property Owners, the court of appeals ruled, “County regulators cannot use the GMA as a shortcut to regulate shoreline property,” according to Pacific Legal Foundation attorney Brian Hodges, who litigated the case.

“This is a victory for property owners and the rule of law — cities and counties cannot take shortcuts when trying to impose precautionary environmental restrictions on private property,” Hodges said.

A conflict of two state statutes, both of which direct local government to adopt development regulations that protect critical areas, was the cause of much confusion, but according to Hodges, Legislature amended the GMA in 2003 to state the “protection of critical areas ... within shorelines of the state shall be accomplished only through the local government’s shoreline master program.”

Ron Ross, KAPO member and one of two residents taking part of the lawsuit, said problems arose long ago when commissioners were trying to “set the bar high” for Kitsap County in order to gain favor with the state. Ross said the changes made affected every shoreline property owner, but Chico seemed to take one of the biggest hits.

“Homes in Chico that were close to the water were rezoned as non-conforming use,” Ross said. “That means they violated the 100-foot buffer and needed to be replaced as soon as possible. That just doesn’t make sense. Why do homes in heavily populated areas only need a 50-foot buffer, but homes in rural areas are required to have a 100-foot buffer?”

Hodges said property owners became involved in a turf war as county officials chose to use the GMA to adopt critical area regulations with the power to eliminate all development and use of property along the shoreline rather than the SMA, which is supposed to balance the use of shoreline resources with a property owner’s right to use his property.

According to Hodges, if county regulators had followed the SMA, they would have had to conduct scientific studies to justify the new shoreline buffers. Instead, they took, what Hodges calls “the easy route” by justifying their decision on the belief that at some point in its life, a fish could pass by any given shoreline and, if it did, should encounter a pristine, undisturbed environment.

“The bold move by Kitsap County caught many property owners by surprise, particularly because the ordinance came just two years after Washington’s Legislature declared that shorelines could not be deemed critical areas just because they are shorelines,” Hodges said. “The county admitted that, in many circumstances, its approach took more land than was necessary to protect fish, but explained that its buffers were a precautionary measure that could be fixed at some later date when it actually conducts the studies that it should have done in the first place. Thankfully, the court of appeals put an end to this illegal regulatory express lane.”

For Ross, the idea of protecting the environment is a flimsy excuse for changing laws.

“We are all interested in clean air and water,” Ross said. “We all want a good environment. This goes beyond that. The government has a responsibility to the people.”

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