Court rebuffs shoreline rules

Kitsap County is asking a state court to reconsider a ruling striking down the county’s shoreline buffer zones.

The setbacks from sea water, meant to protect shorelines and maintain them as habitat, are required to be 100 feet wide outside urban areas and 50 wide feet within, according to the opinion.

But the state Division II Court of Appeals’ Sept. 9 opinion found that the county had been using the wrong land-management law when determining the setbacks.

In the meantime, the county will continue to issue permits using the setbacks on the its 230 miles of marine and freshwater shoreline.

It hasn’t been determined what new buffer zones would be if the decision is finalized, said Patty Charnas, manager of Environmental Programs for the Department of Community development.

The lawsuit began as a challenge to the Central Puget Sound Growth Management Hearings Board lodged by a property-rights group chafing at what they saw as excessive, unscientific setbacks.

Jean Sherrard, the former president of Kitsap Alliance of Property Owners who led the group for three years amid the lawsuit, said he didn’t oppose setbacks that were reasonable and based on scientific study, but said the setbacks included in the county’s critical areas ordinance were excessive and took a one-size-fits-all approach.

Although Sherrard said he hasn’t been personally affected by the setbacks, he said they are arbitrary and cause uncertainty about how property owners can use their land. And property owners may not even know about the restrictions.

“Until an individual is burned by it, the likelihood is he could care less,” Sherrard said.

Lisa Nickel, deputy prosecuting attorney, represented the county in the case and said the motion to reconsider was based on the argument that the court is not required to follow the Supreme Court in this matter. Even the appellate judges noted the Supreme Court failed to garner a majority.

The motion for reconsideration was filed Wednesday.

“We think it’s just not clear,” she said.

Brian Hodges, an attorney with the Pacific Legal Foundation who worked for the property rights group, disagreed.

“The county doesn’t agree with it, but there is no lack of clarity in the decision,” Hodges said.

The two land-use laws in question are the Growth Management Act and the Shoreline Management Act, two laws with significant overlap. At the heart of the debate is which law is appropriate for regulating shoreline. The county used a critical areas ordinance through the Growth Management Act, where the court ruled the Shoreline Management Act would be more appropriate.

However, the opinion explains the history of the Legislature and court’s attempts to clarify the law and give guidance to local governments and notes the Supreme Court has failed to reach a majority on how the two laws interact.

Charnas said the county is currently studying the shoreline.

“What I read (in the opinion) is an acknowledgment that this has not been made clear and herein lies another opportunity,” she said.

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