CASE BRIEF—In a decision likely to disappoint environmentalists, the Division II Court of Appeals held this week that Kitsap County improperly required shoreline property owners to abide by its Critical Areas Ordinance (CAO) requiring a setback buffer along the county's shoreline. According to the court, local jurisdictions must regulate critical areas falling within both Shoreline Management Act (SMA) and Growth Management Act (GMA) jurisdictions under the less-restrictive SMA.
Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board, et al. is the first case involving this statutory conflict to come before the Court of Appeals since the Washington State Supreme Court ruled in Futurewise v. Western Washington Growth Management Hearings Board earlier this year (for a detailed summary of the case, click here). The Court of Appeals' 3-0 ruling indicates how Washington's appellate courts will uphold the controversial Futurewise split decision until either the legislature or the Supreme Court better clarifies the issue of which statute controls—the GMA or SMA.
Quick Summary—The Statutes, ESHB 1933 and Futurewise
The GMA requires local jurisdictions to designate and implement protection and conservation measures for critical areas, which include wetlands, fish and wildlife habitat conservation areas, aquifer recharge areas, frequently flooded areas and geologically hazardous areas. Local jurisdictions are also required to rely on the "best available science" when developing their critical areas ordinances.
The SMA's standard for shoreline development is less strict. The SMA allows development to proceed when it is "carefully planned, managed and coordinated in keeping with the public interest." Use of the best available science is not required. The statutory scope of the SMA is any shoreland within 200 feet of the ordinary high water mark.
Recognizing that both statutes can claim jurisdiction over critical areas on shoreland, the state legislature has made several attempts to provide guidance to local jurisdictions. The latest attempt, in 2003, created what the court calls a "chicken and the egg" problem by making each statute's regulations dependent on the other based upon primacy, but failing to answer the question of which statute comes first. The 2003 bill, ESHB 1933, left the SMA to govern critical areas within shoreland regions, as long as they provided the same level of protection as the local CAO. This presupposed that a CAO was already in existence and operative.
In Futurewise, a four-justice plurality of the Washington Supreme Court—not a clear majority—reasoned that legislative history indicated that ESHB 1933 was designed to prevent local jurisdictions from applying the GMA to critical areas within the scope of SMA master plans. A fifth justice, Justice Madsen, concurred in the result only. Futurewise reinstated a decision by the Western Washington Growth Management Hearings Board, which had been overturned by the Superior Court that allowed the City of Anacortes to regulate its shoreland under its SMA master plan instead of under the GMA-mandated critical areas ordinance (CAO).
The Latest Case
This latest case arose when the Kitsap Alliance of Property Owners (KAPO), a Kitsap County-based property rights advocacy organization, joined with two shoreline property owners in challenging the 35-foot buffers required around the county's marine shorelines. They argued that ESHB 1933 precluded local jurisdictions from regulating shoreline critical areas under the GMA.
The Central Puget Sound Growth Management Hearings Board (the Board) rejected the KAPO challenge, and later approved an amended CAO that called for 50-foot buffers in urban areas and 100-foot buffers in rural and semi-rural areas. KAPO, in turn, appealed both the Board's rejection of its challenge and its later approval of the COA to the Superior Court, which consolidated the two matters and upheld the Board's decisions. KAPO then appealed to the Division II Court of Appeals.
The court of appeals essentially held that it was bound by the precedent established in Futurewise. The court noted that the Supreme Court in Futurewise had done two things in the decision. First, it reinstated a hearings board decision upholding Anacortes' decision to regulate shoreland areas under the SMA. It also overturned a superior court decision requiring regulation under the GMA. Writing for the court of appeals, Judge Kevin M. Korsmo reasoned, "By overturning the order calling for GMA planning while upholding the SMA planning, Futurewise directs that only one plan—the SMA plan—can be in effect at the same time." The court reversed the Superior Court's decision and remanded the matter to the Board to plan under the SMA.
What’s Next?
For now, the conflict between these two competing statutes has been resolved in favor of the SMA's less restrictive approach to shoreline development. Local jurisdictions now find themselves in the odd predicament of being required by courts to act only under the SMA and ignore the substantive provisions of their GMA-required CAO plans.
During the 2009 session, legislation was introduced in Olympia that would have adopted the position argued by the Futurewise dissent; critical areas that fall within SMA jurisdiction would be governed by the SMA, but only after the Department of Ecology had approved an updated shoreline plan conforming to the revised statutory guidelines. The proposed bills never received a floor vote.
Unless the Washington Supreme Court can provide more direction on the issue or the legislature amends one or both of the statutes in question, this ongoing confusion seems likely to continue.
