A lawsuit filed against the city of Bainbridge Island by a group of residents over the Shoreline Master Program has made it all the way to the U.S. Supreme Court.

Attorney Brian Hodges said in a letter to the Preserve Reasonable Shoreline Management board that the SMP “is a potential disaster for the entire community.” The cumbersome 400-page document contains “some of the most complex and confusing land-use regulations in the state.”

To compare, San Juan and Island counties have SMP’s of about 200 pages each, while Poulsbo’s is 50.

Hodges said the program is so ambiguous that as planners and government leaders change so can the interpretation of the law.

He claims the law includes imposing conditions, like buffers, that are stricter than necessary and violates due process, with a “takings clause.” It demands “that property owners give up more land than is necessary to mitigate for the impacts of their land uses.”

Hodges cites Supreme Court cases that say “SMP must be narrowly applied and supported by site-specific science; otherwise the condition will be found unlawful and may expose the city to liability for a taking of private property.”

He said that the law is so vague that the community will have to foot the bill for interpreting, enforcing and defending the law. He adds that special interest groups can take advantage of such laws “to block owners from exercising their development and use rights.”

In closing, he said the state’s Shoreline Management Act is a compromise between environmental and development interests. It embraces appropriate development while protecting shoreline environment.

Dick Haugen, one of the PRSM plaintiffs, said there are two major problems with the SMP.

“The document is too big, poorly written, hard to understand and subject to interpretation,” he said, adding anyone would need an attorney to work with it. “It’s extremely complex with setbacks and buffers.”

Second is the taking of property. “They can’t take our property without due process and compensation,” he said, referring to the 14th Amendment to the Constitution of the U.S. He added that “squirrely language” in the SMP said if development occurs the homeowner has to deed some of its property to the city.

Haugen said it’s ridiculous for the city to think that anyone who lives on the shoreline would do anything to make the environment worse.

“Nobody wants to do that,” he said. “We’re the best stewards of anyone on the island. We have the most invested.

“Shoreline owners get tagged to protect Puget Sound, but it does not apply across the street. If it’s a genuine environmental benefit it should apply to everybody.”

When the SMP was approved in 2014 there was a lot of opposition. More than 1,000 people signed a petition, and they packed City Hall.

“They never looked at the complaints,” Haugen said of city leaders.

He said he even played the governor card, telling city leaders that Jay Inslee, who lives on Bainbridge Island, told him BI has the most restrictive shoreline in the state.

PRSM raised $400,000 to take the city to court. It is being represented by Hodges of Pacific Legal Foundation.

“They specialize in government takings,” Haugen said, adding the nation’s highest court will look at the case and decide if it wants to take it or not. “They’re not some fly-by-night group. They are a powerful national organization and have tried and won many U.S. Supreme Court cases.”

City response

In July 2014, after more than four years of public process, the city adopted its SMP. The process included more than 100 meetings before various city boards and commissions at which public testimony was taken, including one before the Planning Commission and three before the City Council. The city also received and responded to more than 2,000 written comments, at least 363 of which came from PRSM, its attorneys or the named individual petitioners in the lawsuit. The state Department of Ecology also conducted an extensive public process.

PRSM submitted substantial evidence directed at the SMP’s underlying science. Dr. Don Flora critiqued the consensus science about marine shoreline management. Linda Young argued that the SMP was an unconstitutional taking of property and violated her First Amendment right to express herself through gardening. PRSM appealed to the Growth Management Hearings Board, which dismissed the appeal. The board addressed 52 legal issues and 39 subissues raised by PRSM, holding that shoreline owners failed to meet the burden of proof on each.

In the state appeals court, state law required PRSM to bring non-constitutional claims first. The agency denied the statutory challenges, and the homeowners subsequently asserted federal constitutional claims. The state courts denied the homeowners the right to introduce evidence in support of those claims. That process is what’s behind the high court case.

Supreme Court

In court papers filed to the Supreme Court:

PRSM lawyers say the city compiled incomplete studies based on historical — not current — information about potential functions and stressors on the shoreline. Those studies warned that the city needed an updated and site-specific analysis to evaluate the impact of existing and future development on the island — particularly in residential areas. Although those warnings should have spurred additional study, the city opted instead to close the record.

Even more egregiously, the revised SMP imposes mandatory conservation easements on all shoreline property. For example, owners of fully developed lots located in a shoreline residential zone — which includes most of the city shoreline — are now required to dedicate a 50- to 75- foot strip of waterfront property as a conservation area. This is no mere buffer or setback requirement, but an easement or deed restriction that designates and separates the land as a conservation area in perpetuity. The owner of the underlying estate retains only passive use rights.

Science should be welcomed in courtrooms, but in this litigation, the state courts have closed their doors to science. They have categorically refused to allow introduction of expert scientific testimony needed to support and resolve the petitioner property owners’ claims against the city’s SMP.

Local issues

Haugan said he can’t believe how strict the SMP is on one hand for property owners, but on the other side of it the BI shorelines are often troubled by sewage spills from both BI and Seattle, which are worse than what building projects could cause.

He then shared two stories of how the SMP has affected people.

One owner had some property but to build anything would require cutting down trees. The SMP buffer regulations would not allow that, diminishing the value of the property. On another property on Rockaway Beach, the owner ripped put up a new house, but could not get a permit to occupy it because the SMP required a 65 percent canopy. “There was no canopy before,” Haugan said. “They put in all this stuff, and it can drastically affect people.”

Haugan said Seattle groups, like Futurewise and ICLEI — Local Governments for Sustainability, had too much power in developing the SMP. They came in with piles of information nobody reviewed, he said. “They like to glob onto things and make them as restrictive as they can,” he said.

Hillary Franz was on the BI City Council at the time. She went on to become executive director for Futurewise before becoming state lands commissioner.

Haugan said he and others would like to work with the city on what its goals are and come up with better law.

“COBI is not listening to its constituents about legitimate issues. All PRSM has even asked for is a seat at the table with people, meaning our local government, who will listen and understand our point of view.

“Why don’t we figure out what the real deal is here?” he asked. “What we need to do to protect the environment? We can put our heads together and come up with something we can all live with.”

Petitioners: Preserve Responsible Shoreline Management, Alice Tawresey, Robert Day, Bainbridge Shoreline Homeowners, Dick Haugan, Linda Young, John Rosling, Bainbridge Defense Fund, Point Monroe Lagoon Home Owners Association Inc and Kitsap County Realtors.

Respondents: City of Bainbridge Island, state Department of Ecology, Environmental Land Use Hearing Office and Growth Management Hearings Board Central Puget Sound Region.