County to file motion for reconsideration on critical areas decision

(Port Orchard, WA) – On September 9, 2009, the state Court of Appeals ruled that the Kitsap County must use its Shoreline Management Program, adopted under the state Shoreline Management Act (SMA), to regulate critical areas within 200 feet of shorelines according to the Shoreline Management Program and not use the Critical Areas Ordinance, adopted under the state Growth Management Act (GMA). This decision is the first to be handed down after the recent Supreme Court decision in Futurewise v. Western Washington Growth Management Board. Although the Court of Appeals relied on Futurewise, it acknowledges that no opinion in Futurewise garnered a majority vote and that a split among the justices leaves the issue of critical area regulation by the SMA or the GMA unclear.

Given that ambiguity, the Kitsap Board of County Commissioners has decided to file a motion for reconsideration on or by September 29, 2009. “The split decision by the Supreme Court created some confusion. It is our hope that reconsideration by the appeals court will provide clearer direction to counties,” said Charlotte Garrido, Chair of the County’s Board of Commissioners. The effect of the filing delays the issuance of the mandate from the Court of Appeals, which has not yet been issued. The issuance of a mandate is necessary before the Court of Appeals’ decision can become effective. The County’s Department of Community Development will continue to process permits using current Critical Areas Ordinance provisions until the Court of Appeals issues a ruling on the motion for reconsideration.

Physical Limits of Shoreline Regulation

I recently encountered the question: "if my property straddles the line that marks the boundary of the shoreline buffer, to what extent will future development be impacted by shoreline regulations?"

The leading case is Weyerhaeuser v. King County, 91 Wn.2d 721 (1979), wherein the court held:

We recognize that logging practices on lands adjacent to a shoreline may be regulated by means of the Master Program... Furthermore, the intended use of adjacent lands should be considered when taking any action under the SMA in order to achieve the coordinated development of the shorelines which is the object of the SMA... Direct authority to regulate uses of lands adjacent to shorelines is limited in the SMA, however, to the function of land use planning. Only those developments within the shorelines are subject to regulation by permits. The Board's determination that logging practices outside the shoreline cannot be regulated by means of substantial development permits for developments within the shoreline accords, then, with the structure and language of the statute.

So, practices outside the shoreline may be subject to limited regulation, but not by means of the permit. Of course, subsequent Shoreline Hearings Board decisions have raised all sorts of issues affecting how this rule is to be applied in the context of a particular development. Few developments bisected by the shoreline border will be susceptible to a simple analysis and anyone undertaking development on such a property would be well advised to undertake a careful review of the legal precedent as it may apply in their particular context.