Bainbridge's controversial SMP gets conditional approval from state

Washington's Department of Ecology has given its seal of approval to the city of Bainbridge Island's revamped Shoreline Master Program.

Bainbridge's Shoreline Master Program — long the center of debate, derision, confusion and controversy — received a critical OK from the state last week and is now on the verge of final adoption.

The program, a complex regulatory scheme that guides the development of shoreside properties while protecting the natural environment, has been reviled by critics who have claimed it is unconstitutional, intrusive and unfair to shoreline property owners.

Officials with the Department of Ecology, however, praised the rewritten shoreline program as a thoughtful and reasonable approach to regulating waterside properties, and noted the regulations were flexible for property owners who wanted to develop their land.

The updated SMP did not escape from the state's review unscathed, however.

Ecology had asked the city to adopt changes to the plan, most in the area of aquaculture, and also removed a ban imposed by the city on allowing docks in areas that have high wind, high waves and high currents.

State officials said the city had not done enough to map such areas, and could not impose the regulations until additional data is collected.

City officials were officially notified last week that the city's update to its Shoreline Master Program had received conditional approval from the state.

"I would like to take this opportunity to commend the city of Bainbridge Island in developing the proposed comprehensive Shoreline Master Program  (SMP) update. It is obvious that a significant effort was invested in this update," Ecology Director Maia D. Bellon said in a June 23 letter to Bainbridge Mayor Anne Blair.

The SMP guides development and environmental protection efforts along Bainbridge's 53 miles of coastline. The update to the SMP has stretched on for more than four years and has been highly controversial at times, with some shoreline property owners raising concerns that the revised regulations would hurt property values, ban docks and bulkheads, and unfairly restrict the use of private property. Some also claimed the new plan was too lengthy and complex.

The city council approved the SMP update in May 2013, and the rewritten program has been under review by the state since then. The Bainbridge council has now scheduled its last public hearing on the plan for July 14.

The upcoming hearing will focus on Ecology’s required and recommended changes to the Shoreline Master Program, most of which cover regulations on aquaculture.

In passing along its conditional approval on the city's SMP, Ecology officials also responded to many of the criticisms leveled at the updated SMP, and rejected many of the claims made by opponents.

Some critics said the new plan would prevent homes from being rebuilt after a fire or other catastrophic event, but state officials found in their review of Bainbridge's SMP that it  "allows existing structures to be maintained, repaired, renovated or remodeled" if homes are damaged or destroyed.

Opponents also raised concerns that the new rules would impact the owners of existing homes, but Ecology cited multiple areas in the SMP that made it clear that was not the case.

"The provisions of the SMP are not retroactive. The SMP clearly states this," Ecology said in the agency's 21-page list of responses to public comments.

Some opponents were also worried that labeling some shoreline homes as "nonconforming" would hurt property values.

State officials also rejected that allegation, and noted a study conducted by the city, and others done elsewhere, that refuted that notion.

"Commenters provided no evidence supporting this claim, and the record supports the opposite conclusion," Ecology said in its review findings.

The city's study looked at 33 homes along the shorelines of Bainbridge Island that were sold between July 2010 and July 2011; 17 homes were conforming structures and 17 were nonconforming structures that did not meet the city's SMP buffer and setback requirements. Nonconforming homes had a higher average sale price ($1.7 million) compared to conforming homes ($1.5 million) during the time of the study, and the study also noted that the value on the properties by the county assessor did not consider the "nonconforming" status of homes when assigned value to properties.

Some critics of the SMP also charged that the new regulations were not based on science, and were too large and were an unconstitutional "taking" of private property.

Ecology rejected the lack of science claim, and said: "The scientific basis for the vegetation management provisions and the setbacks and buffers is well-documented in the record ... The city based its buffers on existing conditions and scientific information, as well as an analysis of the anticipated impacts of future development."

State officials said the size of buffers in Bainbridge's regulations were reasonable, and said the city has a Single Family Residence Shoreline Mitigation Manual for property owners who need flexibility when developing their land.

It was not a “one-size fits all” approach, the state said, and landowners can also seek variances from the rules, state officials said.

"Buffers could potentially be reduced on a case-by-case basis as needed to accommodate the other policy goals of the SMP," Ecology officials noted. "There are numerous ways waterfront properties may be developed that appropriately limit ecological impacts while enabling owners to build safely sited homes and enjoy their property."

Several opponents of the SMP also wanted the city to declare that residential homes were "water dependent" in the updated plan, but Ecology noted that request would not fit under the definition for "water dependent" in state rules and such a change could only be done by the Legislature.

Critics were also wrong in alleging that the city was trying to "phase out" residential homes along the shoreline, the state said.

"The SMP accommodates and plans for residential uses," state officials noted. "Residential uses are clearly a priority and major use on Bainbridge Island ... The claim that the city wants to increase nonconforming status across the shoreline is clearly not the case in either shoreline designation strategy or the buffer sizes."

Opponents of the SMP also criticized the update for being "virtually silent" on the issue of stormwater pollution.

Ecology officials, however, said the updated SMP contained provisions on water quality and stormwater, including measures to address pesticides, surface runoff and other pollution sources, and further noted that the city has adopted a Stormwater Management Plan that meets the Clean Water Act, and that plan has been approved by the state.

Some opponents also said the SMP went too far and would make criminals of property owners, and claimed that people would be punished for weeding their gardens.

State officials said that was not the case, however.

"It is inaccurate to state that the SMP prohibits a landowner from weeding the garden," Ecology officials noted, and said the regulations allowed existing vegetation to be maintained, including lawns and gardens.

Ecology officials also praised the city for its public outreach efforts as the SMP was updated, and said Bainbridge's process could be a model for other governments to follow.

The state said Bainbridge had a "robust public participation process, including extensive citizen involvement in every step of the SMP involvement."

"The city’s extensive and robust public participation process provides a model for public participation for other jurisdictions across the state," Ecology officials said.

"The city provided for early and continuous public participation through broad dissemination of informative materials, development of proposals and alternatives, strong use of citizen workgroups in the development of SMP policies and regulations, opportunity for written comments, over 100 public meetings, provision of opportunities for open discussion and consideration of and response to public comments," the state noted.

A few steps remain before the SMP is official.

The city can adopt the changes proposed by Ecology, or city officials can submit an alternative with different wording that responds to the proposed changes.

Once Bainbridge formally accepts Ecology’s conditions of approval, the state will then send the city a final letter of approval, and Bainbridge’s SMP update will become state law 14 days after the date of Ecology’s letter.


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