08/05/2008: "WA Supreme Court Upholds Shoreline Rules"

Deciding as Ecology urges would contradict the clear language and intent of the legislature in ESHB 1933 and would add substantial costs to citizens and local governments. Ironically, legitimate conservation management efforts would be frustrated and encumbered…-Justice Jim Johnson

The Washington Supreme Court has ruled that critical areas within the jurisdiction of the SMA (Shoreline Master Act) shall be governed by the SMA; not by the GMA (Growth Management Act).

The ruling may have saved San Juan County from a flurry of lawsuits that would have made all past litigation look like a small claims lawsuit.

The Supreme Court decision resulted when Futurewise, Wa Department of Community, Trade and Economic Development (CTED), and the Department of Ecology (DOE) sued the City of Anacortes, arguing they had violated the Growth Management Act by regulating its shorelines under their Shoreline Master Act, and not under the GMA.

In San Juan County there has been an increasing concern by shoreline owners that if the current updating of the county CAO (Critical Areas Ordinance) resulted in shoreline setbacks of 150, or 200 feet -or greater, many, if not a majority. of shoreline homes in SJ County would become legally non-conforming.

The Court addressed the potential of this impact when in stated “Ecology’s position would place local governments and landowners in an untenable position. Anacortes has long complied with the law and has a shoreline master plan in place. Landowners have relied on this plan when making long-term decisions about their property.”

It is arguable that if the increased setbacks being pushed for by some members of the CAO citizens advisory committee in SJC were to have been adopted, that hundreds of shoreline owners would have both individually, and together, filed lawsuits.

On the other hand, if increased setbacks were not adopted by the County, there was also a good chance that the threats of lawsuits from those who support the 200’ or greater buffer distances would also have come true, as predicted at the last CAO meeting by Stephanie Buffum Field, FRIENDS Executive Director, and a member of the SJC CAO advisory group.

All of that is now behind the County, since there can be no appeal of the Supreme Court decision that found “SMA [Shoreline Master Act] coverage of shorelines has long protected the environment.”

So now what? On the face of it, what this means for SJC is that staff time and money currently being spent by the County on updating the SJC CAO can now be spent on the uplands, and it leaves the shoreline to continue to be protected by the existing SJC Shoreline Master Program.

This is seen as good news by many who have homes that would have suddenly become non-conforming if the CAO imposed new setbacks greater than the existing ones. An example of the potential impact if a house is found to be non-conforming, the house can only be expanded -if at all- by a small percentage of it’s existing size.

It is also good news for the County to the extent it allows the citizens advisory group to move away from shoreline regulations, and it is good news for those on the committee who have argued the existing regulations in the SMP are adequate.

But it is bad news for those -including the county staff- who have maintained buffers are needed that would increase the setbacks to 200 -or even 300 feet back from the shoreline.

Currently a house may be constructed within 50 feet of the top of the bank (as opposed to the hightide line) if there is “adequate screening” to filter the view from the water, and to protect the bank from erosion. In the absence of screening, the distance is increased to 100’. These regulations are contained in the County shoreline regulations. Any changes will require a change in the regulations.

The obvious question is, will the County now slip around the whole CAO issue, and simply attempt to change the shoreline regulations to achieve the same goal that was aimed for in the CAO?

A problem for the County in going that route is that the SMP cannot be changed, or “updated”, unless the County is willing to conduct an in-depth study to justify the changes.

Such a study has the potential to cost the County more than it can afford; not only in staff time, outside consultants, and legal reviews, but also would once again open the County up to appeals and lawsuits that it may now -with thanks to the Supreme Court- have avoided.