Bainbridge Island Review


Don’t be misled by hyperbole over labeling of ‘nonconforming’ uses | GUEST OPINION

February 16, 2013 · Updated 12:32 PM


Over the last several years, the city of Bainbridge Island, our planning commission and city council have benefited greatly from the skills, knowledge and insight of city staff, expert consultants and volunteer citizen committees as we have drafted and considered the state mandated update to our Shoreline Master Program (SMP).

Sadly, these positive efforts have been undermined by a few property rights activists and attorneys who have used partial truths and hyperbole to create widespread fear and anger amongst homeowners.

As a result, many reasonable shoreline homeowners now believe that if their homes are declared “nonconforming” under the updated SMP, their property values will be impacted. Some fear that the goal of this classification is to over time eliminate shoreline development. This is simply not true.

At the heart of the controversy is confusion about the terms “nonconforming uses” and “nonconforming structures,” two concepts that have very different impacts on the use and value of real property. These concepts are neither new nor are their definitions unclear, having been used throughout the country for more than a century.

A property contains a “nonconforming use” when zoning is changed, for example from commercial to residential, after the use is already legally in existence. As a general rule, a local government will seek to transition such properties to the new use, while also respecting the rights of the property owner. If the use was legal when it began, it will be grandfathered in. However, in most cases there can be no expansion of existing structures, and when certain circumstances arise — destruction of a specified percent of the structure(s) or a period of abandonment — the use must change to conform to current law.

A classic example would be a corner grocery store in a district rezoned to residential. The store is a nonconforming use — commercial — and must eventually be replaced by a residential use. This type of “nonconforming” status does indeed affect property value, and this is not what is at stake in the conforming/ nonconforming decision before the city council.

The issue before us is another legal term entirely: “nonconforming structures.” These are homes that were legally built but now are not in compliance with laws enacted since their construction, in this case, the SMP.

On Bainbridge Island the issue is generally that the footprint of a waterfront home may now fall within the shoreline buffer, and thus not be in compliance with current law. In that case, the structure is non-conforming, not the use of the property. In fact, residential use is and will continue to be a preferred use along the shoreline.

Just as nonconforming structures are treated all around the country, neither the city nor the state is planning to eliminate these homes. As a matter of fact, they can be expanded and rebuilt in most circumstances.

Unfortunately, many reasonable homeowners have been frightened into believing that a “nonconforming structure” status – that approximately 30 percent of Island waterfront homes already have had for some time – will cause their property values to decline. As a result, the city has been asked by property owners to re-label these nonconforming structures “conforming,” even though they are, as a matter of fact and law, nonconforming. Some of us on the city council feel that to do so would be a bad decision based on emotion instead of good policy.

Property owners have pointed to a law recently passed by the state Legislature allowing local jurisdictions to label nonconforming properties “conforming,” even though those cities and counties must treat those properties as if they were labeled nonconforming.

I certainly have a lot of respect for the “higher authority” of the Legislature, but as one of my colleagues recently observed “sometimes the Legislature passes bad laws.”

I believe this to be very much the case here. As I stated at last week’s council meeting, my inquiry in the drafting of city policy will always go beyond the Legislature’s authorization to the question of “Is this the right thing to do ethically? Is it fair? How will this impact other city policies and laws?”

The fact is that shoreline homes are not the only homes on the island that are nonconforming.

Across our community, there are homes that are not in compliance with setbacks from roads and lot lines, creeks, wetlands and hazardous slopes. All of these homes are “nonconforming” in the same way that these shoreline properties will be under the updated SMP.

Is the city council to remove the perceived stigma of “nonconforming” from the shoreline and not from the interior of the Island?

What is the basis for creating a special class of property on the shoreline? And if we were to “label” all nonconforming properties across the Island “conforming,” yet treat them as nonconforming, what would be the result for future buyers? For the legal defensibility of our code? For environmental protection?

The bottom line is that no matter what we label these properties, the same restrictions apply so that any property owner or future buyer would face the same issues as with any other nonconforming property.

Furthermore, there are many other upland properties that are nonconforming, and to label the shoreline nonconforming properties “conforming” would be akin to creating a special class of property owners. It would also create inconsistency and confusion in the city’s code, and ultimately undermine the city’s state mandated efforts at environmental protection of critical areas.

It is for these reasons that I will be voting to uphold the planning commission’s recommendation for retaining the term “nonconforming” in the SMP update.

Kirsten Hytopolous is a city councilwoman for the city of Bainbridge Island.

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