09/16/2009: "Court (sort of) Rules For Small Buffers In Kitsap County"

A recent Court of Appeals Division decision in favor of a group of property owners in Kitsap county may have an impact on how big buffers will be in San Juan County.

The Kitsap Association of Property Owners (KAPO) appealed a case involving 35-foot buffers around marine shorelines. The buffer size had been passed as a part of the updated Critical Areas Ordinance (CAO) for Kitsap County.

Environmental groups said the buffers were inadequate and challenged them. The Growth Management Hearings Board (Board) hears cases related to the Growth Management Act (GMA), and they rejected the property owners arguments, ordering Kitsap County to increase the buffer zones. The County responded by increasing some of the buffers to 50 feet, and others to 100 feet.

The Board ruling was appealed to a Superior Court, which ruled the Board was correct to have approved the new increased buffer distances. The Court’s decision was then appealed by the property owners to the Division II Court of Appeals.

The Court of Appeals (the last stop before going to the State Supreme Court) ruled in favor of the property owners, based in part on the recent State Supreme Court decision in the Anacortes case Futurewise v. Western Washington Growth Management Hearings Board.

Kitsap County will now have to re-do the shoreline regulations when they do their Shoreline Master Program; and that means they will follow the state Shoreline Master Act (SMA) when so doing, and not the Growth Management Act (GMA).

The Court of Appeals decision is being called a victory for property owners, since it means county governments can not use the GMA regulations when writing Critical Area regulations; but they are required to follow SMA regulations.

Which is to say, a County must follow the law as stated in the Revised Code of Washington: ”… the department of ecology approves a local government’s shoreline master program adopted under applicable shoreline guidelines, the protection of critical areas as defined by RCW 36.70A.030(5) within shorelines of the state shall be accomplished only through the local government’s shoreline master program..”

Which is, of course, exactly what the Supreme Court pointed out in the Anacortes case. However the state Department of Ecology is finding all of this difficult to accept. One thing that is also becoming increasingly clear, is if the County Council does not follow the letter of the law, they too are likely to end up in court.