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Kitsap County rebuffed in buffer decision

The Washington State Court of Appeals helped shed some light last week on the conflicts between the Growth Management Act and the Shoreline Management Act when it overturned a 2005 decision to require setback buffers for the entire shoreline of Kitsap County.

The court acknowledged that attempts by the State Legislature to define the rules of the GMA and SMA when it comes to shoreline protection have left many questions unanswered.

“The legislation created a classic ‘chicken and the egg’ problem by not answering the question of which statute comes first," the appeals court concluded. “The SMA must govern, but it has to do so with reference to GMA standards and requirements.”

Conflicts between the two acts have been an issue on Bainbridge before. In summer 2008 the City Council halted updates to its shoreline master plan, which would have featured wholesale incorporations of the Critical Areas Ordinance, an ordinance designed to protect shorelines and limit development in those areas.

The plan was to create a buffer of 200 feet along all shorelines. The action stopped when a state Supreme Court decision declared that local governments don’t have jurisdiction over the shoreline critical areas, and that they must be approved by the state Department of Ecology under a shoreline master program.

Dennis Reynolds, who served as an attorney for the Shoreline Homeowners Association in a challenge of the proposed changes last year, said the city's decision to stop the action was legally sound.

“The city did the right thing by putting things on hold,” he said. “If it had gone forward, it would have built illegal buffers.”

The recently decided lawsuit was brought against Kitsap County by the Kitsap Alliance of Property Owners along with two Kitsap residents, William Palmer and Ron Ross.

The action arose after a GMA-mandated update of the CAO. The ordinance called for a 35-foot buffer around shorelines. The property alliance called the buffers excessive while addressing the Central Puget Sound Growth Management Hearings Board. The board rejected the challenge, and the county CAO update expanded the buffer to 50 feet in urban areas and 100 feet in rural and semi-rural areas.

One of the two cases the appeals court used to make the decision was Biggers vs. City of Bainbridge Island in 2007. In that case, the city attempted to enact a moratorium on shoreline development until updates to the shoreline master plan were finished.

The case eventually went to the state Supreme Court, which agreed in a 5-4 decision that the city's moratorium was illegal.

However, the four dissenting justices, and one concurring justice, believed the city had the right to declare a moratorium while the shoreline master program was being updated.

The city ultimately lost the battle because the swing justice felt the city was excessive in the time-span of the moratorium. The city renewed and continued the moratorium, denying shoreline development applications for over three years. The moratorium expired in 2004.

Shore lands are defined as areas within 200 feet of the high-tide line when it comes to marine waters.

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