(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.