LJ Young 7/28/2013 7:30 a.m.

BAINBRIDGE SMP ISSUES

(Single-Family Residential)

Overarching Goals of the Bainbridge SMP

I. Stated versus Actual Goals:

The SMP pays lip service to SMA goals of control over new development and protection of private property rights, but the actual goals evidenced by its regulations are (a) to eliminate all currently existing shoreline uses and structures – to effectively convert the shoreline into a public park; (b) to stop all new development and remodeling/rebuilding; (c) to force an extreme level of restoration on all shoreline homeowners (i.e., not just on the owners of new homes); (d) to eliminate all existing bulkheads and ban all new ones; (e) to eliminate all private single-family use docks, piers and floats; (f) to increase public access over private land to private beaches; and (g) to convert private beaches into public beaches.

In short, the Bainbridge SMP is the poster child for what Justice Holmes described in Pennsylvania Coal Co. v. Mahon as when a “regulation goes too far.” So far, in the realm of shoreline regulation, there has been no such overview case – this is it.

II. How the SMP Intends to Accomplish These Goals:

A. Nonconforming Use Phase-Out of Majority – not Minority, Consistent Use.

1. All single-family homes existing as of the May 15, 2013 date of passage of the new SMP are labeled “nonconforming.” This is not an inconsistent use: it represents virtually all homes on the Bainbridge waterfront. SMP 4.2.1.1

2. If an existing home is not destroyed by “natural causes,” it cannot be rebuilt. SMP 1.3.5. That is, if your house is damaged or destroyed accidentally – the major cause of house damage and destruction, you cannot rebuild. SMP 1.3.5

3. If an existing home is unoccupied for 12 consecutive months, the City can take the homeowner’s right to use the house. SMP 4.2.1.5.2

4. After a casualty, if the homeowner fails to meet the very tight deadlines set by the City (solely for rebuilding existing homes – Equal Protection issue), he loses his right to rebuild/finish the rebuild and/or use his house in whatever condition it may be. SMP 4.2.1.4

These rebuilding requirements have some real opportunities for City “gotcha’s”: (i) a complete application to rebuild must be submitted to the City within two years of the casualty; and (ii) the construction must be completed within one year of its start. A one-year extension for either of these can be obtained only if the request for same is submitted at least 21 days prior to the deadline

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and the homeowner is not responsible for the delay. SMP §4.2.1.4.2 Problems: (i) the City has no affirmative duty to tell the homeowner that his application is not “complete” before the first deadline, and/or in sufficient time for the homeowner to adequately supplement his application; (ii) reconstruction may – in fact most likely will - take longer than one year, or even two, given the industry’s notorious reputation for taking longer than contractors predict; and (iii) the determination of fault for a delay is extremely subjective and the Planning Department has the unfettered discretion to make that determination.

[While this SMP section allows rebuilding an existing house without any qualifications, a general rule of construction (SMP 4.6) mandates that the more restrictive provision – which precludes rebuilding if the casualty was not the result of “natural causes”– prevail. A frequent ploy of the SMP is, in one part, to echo SMA requirements, but elsewhere, to have a more narrow, conflicting part that takes them away; thus, by use of the conflict resolution rule, a number of SMA requirements are eliminated from the SMP. The simple “consistency analysis” conducted by the Interim City Attorney can thereby succeed when it compares only the lip service sections to the SMA and skips the contradictory section, as well as the rule of construction that eliminates the broader SMA requirements.]

5. If a criminal act by the homeowner is involved in some way with a casualty that damages or destroys the existing house, he cannot repair or rebuild. SMP 4.2.1.6.3(a)

6. “Once discontinued, re-establishment of nonconforming uses located in the shoreline jurisdiction shall be restricted.” SMP 4.2.1.3, emphasis added. There is no clear-cut explanation of exactly how a homeowner can re-establish his use. The only other re-establishment proviso relates only to the unoccupied house: “If a nonconforming use is discontinued for 12 consecutive months any subsequent use shall be conforming.” SMP 4.2.1.5.2

Issues:

(a) Lack of precedential zoning authority to justify phasing out a majority use that conforms to its single-family residential zoning. ‘Nonconforming use’ is really a misnomer for these reasons.

(b) These nonconforming use ‘phase-outs’ are framed as punishment for personal conduct yet there is no requirement of any environmental damage (proof of significant damage is an essential element of a crime or offense under American law) and there is no right to trial provided.

(c) Punishment for criminal acts is the exclusive jurisdiction of the State; hence, the imposition of a City penalty on someone who has been convicted of a criminal act related in some way to the destruction of the house is pre-empted by State law.

(d) The SMA limits its ambit to the regulation of new development. RCW 90.58.020. The DOE Guidelines specifically prohibit retroactive application of the SMP to “existing structures and uses.” WAC 173-26-221(5)(a). These regulations are not authorized by the SMA because it has delegated no authority to regulate shoreline land use involving old construction.

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(e) The imposition of use phase-outs because a house does not conform to the new SMP constitutes the retroactive application of the SMA to existing structures and uses – a direct violation of the SMA.

(f) Under the Biggers rationale, the City has no police power to regulate shoreline land use unless it is specifically delegated to it by the SMA; since the SMA has refused to delegate the power to retroactively apply the SMA, the City’s regulations are ultra vires and unlawful.

(g) There is no nexus between the phase-out of existing properties and new development; so the City’s passage of the nonconforming regulations, ostensibly under the SMA, is unconstitutional under Nollan and a Fifth Amendment ‘taking.’

(h) Application of the commercial abandonment principle does not have a rational basis: there are many valid reasons that can explain/justify a homeowner’s 12 month absence – such absence is not reasonable proof of intent to abandon, as it is in a commercial situation.

(i) The common law forbids abandonment of a fee simple, so the homeowner is not abandoning/cannot be abandoning his home when he leaves it unoccupied.

(j) No significant damage would usually occur to the environment by virtue of leaving a house unoccupied for 12 months – ‘no harm, no foul.’ This is no offense punishable by law.

(k) Even if significant damage to the environment did occur from leaving a house unoccupied, the punishment is disproportionate – ‘let the punishment fit the crime.’ The City has a far less obtrusive alternative available by imposing a fine – this is the violation of a basic constitutional principle.

(l) The City’s rebuilding deadlines are arbitrary and capricious – with no legitimate goal or rationale for imposing them.

(m) To the extent that these ‘phase-outs’ are actually punishments for all damage done by the existing house and its use by others as well as the current homeowner, under Eastern Enterprises v. Apfel, the imposition of a “severe, disproportionate and extremely retroactive burden” on a person with little relationship to the damage is a violation of the Takings Clause.

(n) The prohibition against the rebuilding of existing homes not destroyed by forces of nature effectively makes the right to rebuild under the SMA illusory, inasmuch as the majority of homes are destroyed by accidents. This prohibition could also be used by insurance companies to deny liability under insurance policies, inasmuch as it effectively imposes strict liability on the homeowner for all his actions.

C. Elimination of Bulkheads so You Eliminate Uses and Houses.

1. Ban on new bulkheads to prevent erosion ‘unrelated to water.’ SMP 6.2.2

2. SMP 6.2.4.4(a) implies that you have the right to a bulkhead to protect an existing home, but SMP 6.2.3.9 says that “Shoreline stabilization should not be constructed

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waterward of feeder bluffs.” Since this latter provision is the more restrictive, under general governing principle SMP 4.6, when two provisions conflict, the more restrictive one prevails – meaning that there “should” (which is defined as mandatory “shall” unless completely unfeasible) not be any bulkheads for feeder bluffs.

3. Ban on new bulkheads, other than to protect an existing home, on feeder bluffs, marshes, and accretion shore forms such as spits, or barrier beaches. SMP 6.2.4.4(a)-(d). Complete ban on bulkheads in shoreline wetlands and in salmon spawning areas. SMP 6.1.4.1

4. Ban on new bulkhead after house is rebuilt following a casualty (ban is imposed through the City’s refusal to grant a building permit or an occupancy permit until the landowner has executed and recorded a title restriction “for the life of the new structure”). SMP 4.2.1.6.1(b)

5. A bulkhead can be built only if the homeowner agrees to sign a title restriction against any other bulkhead within the greater of (a) the lifetime of house or (b) 100 years. SMP 6.1.45.4

6. Consistent with the DOE Guidelines, bulkheads are not allowed unless damage or destruction is imminent - three years or less away. SMP 6.2.8.1. This is in conflict with the SMA, which says that bulkhead permits shall be given so as to provide “timely and effective protection and ”does not put any time restrictions on when you can have a bulkhead. RCW 90.58.100(5)

7. There is a ban on bulkheads for subdivisions that results from a current Planning Department practice: in order to get a building permit for a subdivision, the developer must record a title restriction on title that prevents the construction of bulkheads for any house in the subdivision. (Unconstitutional Koontz condition.)

8. Before the City will consider letting you have a bulkhead, the City may force you to try other non-structural forms of shoreline protection. SMP 6.2.8.

9. But then again, if the City can require public access to and along your beach, you may be able to get a bulkhead. This is a required section of your bulkhead permit application. (Koontz unconstitutional condition) SMP 6.2.10(h)

10. You can only repair your bulkhead if it is already failing. SMP 6.2.7(a)

11. Repair of existing bulkheads is limited to 50% every 5 years. SMP 6.2.7(c) But this is not how bulkheads fail: they fail all at once. If you have something left to repair 5 years after you repair the first 50%, it will probably only be that 50% that you just repaired – the rest will be gone. The practical effect is to either completely ban the repair of bulkheads or to reduce the size of the bulkhead by 50% every year until it is completely gone.

The City Council passed the draft SMP on May 15, 2013. After this passage a number of changes were made to the SMP, are only now being released to the public, and are presumably being submitted to

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the DOE – some of considerable significance. In particular, the new SMP prohibits the repair of bulkheads in the Point Monroe area.

Issues:

(a) There is a right to protect one’s property that cannot be taken by government except in very limited circumstances not applicable here. (Biggers, Luhr) This protection can constitutionally cover now just the house, but also appurtenant structures (as the SMA explicitly provides) and the land itself.

(b) The SMA delegates no power to prohibit bulkheads for any reason; because the SMA mandates the first-priority issuance of permits for bulkheads to assure ‘timely and effective protection’ against erosion, the SMP prohibition is contrary to State law – invalid under the Washington Constitution article XVII, section 11 (the Biggers argument).

(c) The police power of any government is granted by the people for the purpose of protecting life, safety and private property – not to aid and abet in the destruction.

(d) Under Northwest Louisiana Fish & Game and the flooding line of cases, a government that facilitates damage by natural forces to another’s property is guilty of a Fifth Amendment ‘taking’.

(e) Protection of one’s property is paramount over the preservation of the environment: use of Vander Houwen (endangered species of elk destroying apple crops shot by landowner – action sustained when other less obtrusive measures had proved to be ineffective).

(f) While there may be a debate over whether bulkheads do, in fact, damage the environment, there is no dispute that they are the most effective method for protecting property from nature’s forces. As such, they must be permitted where less obtrusive alternatives have failed or are reasonably unlikely to succeed.

(g) Proof of potential or theoretical harm is insufficient to prohibit protection of private property: only actual harm may do that. Biggers – there was findings of fact that bulkheads potentially did “significant damage” to the environment; the Court held that actual harm was required.

D. Preventing New Development.

1. Outright ban on new development in three out of the seven designations – Natural, Aquatic and Priority Aquatic – despite the significant amount of existing homes already there. SMP 5.9.5.1 Since the land has been proven to be buildable, the City is simply punishing the last to apply for building permits. In addition, a 200-foot buffer zone was established for the Natural designation after the public comment period was over and after the City Council had passed the then-existing SMP draft; this may effectively ban construction even if the just-described ban doesn’t – a typical Bainbridge lot is only 200 ft. deep.

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2. Outright ban on any new development in critical areas – not just homes, but their “accessory uses”. SMP 5.9.3.6

3. Effective Lucas bans on new development possible for many properties, given the typical lot depth of 100 to 200 ft., and buffers ranging from 50 to 200 ft. The buffer zones for residential properties were established by using agricultural studies – based on cattle feed lot contamination and commercial crop pesticide contamination. These agricultural studies were used because there were no residential studies to substantiate that residential use of property resulted in any environmental damage. (Clearly, misapplication of science.)

4. Potential ban on new development in the Residential designation anywhere that “open space” on the lot cannot be provided. SMP 3.2.2.2 Also, potential bans in Residential for any “areas that retain important ecological functions, even through [sic] partially developed. SMP 3.2.3.2(b), emphasis added.

5. Buffers may be increased up to 50% - in the sole discretion of a planner – if the landowner is unlucky enough to have a wildlife habitat on his property. Appendix B-8(c)(3)(d)

6. Effective Dunlap bans on new development where short lot depths, big buffer depths, and 30% side-yard buffers may restrict homes to unreasonable sizes and shapes.

7. Effective ban on new development where outright ban on bulkheads for erosion unrelated to water makes building without protection extremely risky.

8. You can only build a new house if you sign a title restriction preventing you from having a bulkhead for 100 years. SMP 6.1.5.4

9. Potential ban on any new construction because it would ‘block, reduce or adversely interfere with the public’s view of the water and the shoreline.’ SMP 4.2.4.5.5 This ban is imposed because of the impact on public view not just from publicly-owned land, but also from utility easements, road ends and road rights-of-way. SMP 4.2.4.5.6 This is in conflict with the SMA which only protects views from publicly-owned land.

10. Potential ban on new development where it will “disturb” native vegetation – no definition of “disturb” or any quantity/uniqueness of vegetation to be protected. (I.e., severe due process problems.) SMP 4.1.3.5.1

11. After the passage of the SMP by the City Council and the end of the public comment period, the City has inserted the right to monitor/inspect private property without any time limitations to ensure that the new house and its use are not doing any harm to adjacent critical areas, as well as fish and wildlife habitats or ecological processes.

Issues:

(a) SMA specifically prohibits local governments from taking ‘all viable use’ of property; this makes SMP outright bans in conflict with State law and ultra vires/invalid under Biggers.

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(b) Outright bans are per se Fifth Amendment takings.

(c) What I call ‘effective bans,’ including Lucas and Dunlap-type bans, are as-applied Fifth Amendment takings.

(d) The imposition of monitoring requirements on the property constitutes a taking of the basic constitutional right to exclude others from private property.

(e) State law does not specifically protect “shoreline views”; the only views mentioned by the DOE Guidelines are “views of the water.” WAC 173-26-221(4)(b)(iii)

E. Forcing Homeowners to Restore The Land – in New and Existing ‘Gardens.’

1. To get a building permit, the landowner must first execute and file with the County a conservation easement (or similar document) committing the property “in perpetuity” to native vegetation and provide a surety bond in an amount to be determined in the sole discretion of the Planning Department (creating extortion/bribery opportunities) for a minimum of 5 years - for faithful installation, maintenance and replacement, as needed, of native vegetation. (Koontz unconstitutional conditions.) SMP 4.1.2.7.1 and 4.1.2.7.2 Unlike a performance bond posted for construction, this surety bond is not released by the City upon completion of the project; it has a life of its own. Its stated purpose is to ensure the achievement of vegetation goals established in the initial landscaping plan that must be submitted to the City as part of the permit application process. In the context of hazard tree replacement, the SMP specifically provides that the homeowner is the guarantor of tree survival: . SMP 4.1.3.5.5(e)

2. For new development, the City must approve the species and location of every plant (all-native) and tree in the shoreline jurisdiction; the permit applicant must have a landscape gardener prepare the planting plan for him. SMP _________. The City may condition any alteration or expansion of an existing property not simply on mitigation of the environmental impact but, instead, on restoration of the environment. SMP 5.2.1.3.6

3. For new gardens there is periodic “monitoring” for a minimum of five years; these inspections can be extended indefinitely at the discretion of the planner (further extortion/bribery opportunity). SMP 4.1.2.8.1

4. If the landowner agrees to the full restoration package “Appendix D” (which provides for restoration of a larger area than that which is impacted by the development), the Planning Department can waive all of the nine “qualified professional’s” reports otherwise required as part of the building permit application package. We estimate the cost of these nine reports at somewhere around $50,000. (Is this a Koontz unconstitutional condition, or just plain old extortion?) Appendix B.

5. An individual planner has the authority – even if you do not agree to the Appendix D-style restoration – to waive any and all of the nine very expensive ‘qualified professional’ reports that must otherwise be submitted as part of the building permit application.

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No grounds for such waiver are established, creating exquisite opportunities for extortion and/or bribery. SMP 4.1.2.9

6. A very large amount of all-native vegetation is required by the City – 75% of the 200-foot deep “shoreline jurisdiction” is to be planted with native vegetation [SMP 4.1.2.5.5(a)] along with a 65% vegetation canopy over the buffer zone [SMP 4.1.2.5.3(c)]. In the buffer zone, there must be a tree every 20 feet and a tall bush every 5 feet. SMP 4.1.2.5.4 With the typical Bainbridge lot being only 100 to 200 feet deep, this means that buffer zones and the vegetation requirements may eat up the entire lot.

7. Before the landowner plants his new native vegetation, he must remove all non-indigenous plantings – even trees – within the 200 feet deep “shoreline jurisdiction.” SMP 4.1.2.5.1 This is precisely what the DOE Guidelines said was not required – even for restoration. To use the SMA description, this amounts to restoring the land to an ‘aboriginal, pre-European settlement’ condition. (DOE Guidelines definition of “restoration”)

8. Through its public access requirement – in return for the building permit where the new construction will block prior access (albeit possibly a trespass; see public access section below), the City can acquire paths through what becomes its new quasi-public garden (SMP 4.2.4.6.1) or even a viewing tower (paid for by the homeowner) to look not only at the water, but also down on the new quasi-public garden. SMP 4.2.4.6.1 and 4.2.4.6(c)

9. ‘Your’ garden is not just an all-native garden; it is a potential wildlife habitat, at the discretion of the planner upon input from the wildlife ‘qualified professional’ you must retain to prepare a report as part of the permit application process. His report must include not just observations on possible existing habitats, but also “opportunities to restore habitats that were degraded prior to the proposed land use activity…” SMP4.1.2.9.1(d) (In short, this is more environmental restoration that is an equal protection violation under Armstrong.)

10. There are severe restrictions on the amount of vegetation that can be cleared/removed. In particular, there can be no reduction of the vegetation canopy; presumably, then, the vegetation canopy must be allowed to grow until you can no longer see the sky…

11. Existing homes with existing gardens become subject to the SMP because all maintenance of their gardens is controlled by the City if any ‘change or alteration’ is proposed to them. SMP 4.1.3.5.5(a) (Completely murky, uncertain application – serious due process issues.) In addition, “[v]egetation replanting is required for all development, uses, or activities within the 200-foot shoreline jurisdiction, which alters existing native vegetation, whether a permit is required or not.” SMP 4.1.2.5, emphasis added. ( There is no definition of “activities;” due process issue.) Bearing in mind that what many of us consider ‘weeds’ are considered precious native vegetation, if your child smashes some of those in your largely non-indigenous garden, you may have to replant your garden with more ‘weeds.’

In addition, it is clear that if you remove any plant, tree or weed, in your existing garden, you cannot replace it with like-kind non-indigenous vegetation – rather, it must be replaced with native vegetation, and potentially covering a larger area (planner discretion). SMP _________. If you are

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unlucky enough to get a lot of ‘weeds’ you want to pull out, you must apply to the City for permission to pull them – even if you do not need a clearing permit. SMP 4.1.2.5.1 (My guess is that you will only be able to replace one native weed with another native something.) By making such an unpopular activity as weeding even more difficult, the City is certain to turn weeds into a bumper crop.

And if you want to trim, prune, or top anything, clear, grade or even remove dead vegetation, you must get City pre-approval and also follow ANSI standards. SMP 4.1.2.5.5(b) If you are unlucky enough to have a hazard tree and want to remove it, you must get at least one – possibly two – arborist reports and City pre-approval. You must replace the tree with a native tree of a type and size that will satisfy your planner and you may not be allowed to remove the felled tree – the City may require that you keep it on-site as additional wildlife habitat. SMP 4.1.3.5.5(e)

12. There are off-site mitigation provisions, at the discretion of the City, when there isn’t enough land for on-site mitigation or when the planner determines that off-site mitigation is “more beneficial to shoreline ecological functions…” SMP 4.1.2.6.2

13. The City has the power to require that construction on private land be located away from abutting public land – i.e., “to provide a physical separation to reinforce the distinction between public and private space.,” or to require that a portion of private land be designated “open space,” with a recorded restriction on it title. SMP 5.9.6.1(e) The Supreme Court in a less-noticed portion of Nollan specifically prohibited this practice: “its creation achieves nothing except to shift the location of the boundary dispute further on to the private owner’s land.” 483 U.S. fn. 6.

14. Another substantive change inserted into the SMP after its passage and after the public had any opportunity to comment on it is a ban on the use of pesticides in buffer zones. This ban is pre-empted by State law, which regulates the use of pesticides.

15. There are actually even more tight restrictions on ‘your’ garden and what it contains, but I suspect that, by now, you are as tired of reading about it as I am of writing about it…

Issues:

(a) The whole package - conservation easement and all decisions that only the City can make with respect to installation and on-going maintenance (complete dominion and control) -constitute a Loretto ‘taking.’ The native vegetation is the functional equivalent of the Loretto cable equipment, constituting a permanent physical occupation of the land and precluding any other use of this space. To the extent that the Court in Loretto found the taking of a relatively minor amount of space to be egregious, it most likely would be shocked that not only can the amount of space involved in the ‘permanent physical occupation’ by native vegetation equate to the entire amount of the landowner’s lot, but by the salt-in-the-wound fact that the owner must pay for the extensive occupation himself.

(b) The extent of land involved may amount to the entire lot area beyond the construction footprint, thus constituting the taking of all ‘viable use’ of the property other than the obvious use of

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the house as living accommodations. This may invoke the DOE Guidelines prohibition of taking all viable use, in the context of the use of zoning regulations and SMP regulations working together – which they might be considered as doing in this instance. At a minimum, this involves a Penn Central ‘taking’ of the right to use which is not justified as a valid regulation because it exceeds what may be required for ‘no net loss’ of ecological functions.

(c) “Restoration does not imply a requirement for returning the shoreline area to aboriginal or pre-European settlement conditions.” DOE Guidelines definition of “restoration.”

(d) The large quantity of native vegetation required is likely in excess of the amount actually needed to preserve ecological functions. In addition, because of the blanket application of the same vegetation requirements to all shoreline areas on the Island, the City may be requiring tall vegetation where there is absolutely no ecological need for it – and sacrificing the homeowner’s water views by doing so. The DOE Guidelines acknowledge that “[t]he importance of the different functions, in turn, varies with the type of shoreline setting.” WAC 173-26-221(5)(b). Also, they acknowledge that “[w]oody vegetation normally classified as trees may not be a natural component of plant communities in some environments… In these instances, the width of a vegetated area necessary to achieve the full suite of vegetation-related shoreline functions may not be related to vegetation height.” SAC 173-26-221(5)(b)

(e) The fact that the nine “qualified professional’” reports (costing approximately $50,000) can be waived, without any established criteria for planners or the public, means their sole purpose may be to serve as bargaining chips to force people into restoration and ostensibly serve as a justification for the restoration requirements which the City knows go beyond mitigation. Elsewhere in the SMP, there is a reference to “incentive based” measures being used for restoration – undoubtedly a reference to this mechanism.

(f) The DOE Guidelines explicitly prohibit using regulatory measures to achieve restoration. “These master program elements regarding restoration should make real and meaningful use of established or funded nonregulatory policies and programs.” WAC 173-26-186(8)(c), emphasis added.

(g) Fifth Amendment taking of the right to exclude others because of the City’s five-plus years of periodic monitoring of new vegetation, as well as possible inspections following removal and replacement of vegetation in an existing garden. In the first instance, the surety bond serves as the ‘choke hold’ on the landowner to ensure City access to, and around, the property. This may not be public access, but having City inspectors snooping around your property, nevertheless, constitutes a violation of the right to privacy.

(h) The DOE Guidelines expressly provide that ‘areas reserved for conservation’ (not expressly limited to area designations) must be “reserved consistent with constitutional limits.” WAC 173-26-201(2)(d)(i). This is clearly not the case here, where it is clear that the regulations are invalid under the Biggers/Washington Constitution reasoning, as in conflict with State law.

(i) The DOE Guidelines itself, in its definition of “restoration” describes the scenario required by the City, which not even the State requires for “restoration,” let alone “mitigation.” The

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excessive vegetation requirements have no nexus to construction damage from a new project because they are so excessive that they amount to a Nollan taking. Plus they violate the Equal Protection Clause under Armstrong.

(j) The removal of mature non-indigenous vegetation – especially trees – close to the shore may serve to de-stabilize a bank, creating opportunities for erosion that will last for years, despite replanting with native vegetation, which will undoubtedly be younger, with fewer roots.

(k) Lack of scientific proof that the type of vegetation – all native, and the seemingly excessive quantity required are, in fact, serving some valid ecological purpose.

(l) The trees and vegetation canopy constitute a taking of the “light and air” above the property, that can have dire health ramification for people. Deprivation of sunlight causes and/or aggravates a number of human illnesses: it causes a vitamin D deficiency (vitamin D comes from sunlight), Seasonal Affect Disorder, a higher incidence of death from cardiovascular disease and is associated in a number of health issues such as osteoporosis, severe asthma in children, high blood pressure, cognitive impairment in older adults, cancer, diabetes types 1 and 2, even multiple sclerosis. (Sources: WebMD and Mayo Clinic websites) Heretofore, the health and safety of people has always come before the health and safety of other animals. There is no consideration given by the SMP to these issues.

(m) The health and safety of humans can also be endangered by the dense vegetation requirements inasmuch as they create a close proximity to wildlife that can carry disease (rabies, lyme disease, the hanta virus) and wildlife that are known predators - coyotes, cougars, bears, and raccoons – all known enemies of the family cat and dog and a danger to small children and the adults who try to protect them. In addition, there is another natural predator of homeowners – other people; imagine an elderly woman living in a house, alone, with dense vegetation all around – this is the perfect cover for would-be thieves, rapists and killers. And, as we are all too familiar in wildfire season, dense vegetation – and especially dead uncleared vegetation – present a tremendous fire danger; the City’s prohibitions and permit requirements on trimming, pruning and clearing serve only to add fuel to a fire.

(n) The DOE Guidelines specifically preclude application of the SMA to existing gardens: ”Like other master program provisions, vegetation conservation standards do not apply retroactively to existing uses and structures.” WAC 173-26-221(5)(a) This makes the City’s regulations over the “maintenance” of existing gardens ultra vires and in conflict with the State law under the Biggers rationale.

(o) Burden v. benefit constitutional analysis: regulation burden much too excessive on individual versus public benefit of having nice native quasi-public gardens to look at.

(p) Governmental action promoting/requiring vegetation overgrowth that precludes any other use of the land (such as lawn sports, patios, backyard barbecues) is a Fifth Amendment ‘taking’ under Northwest Louisiana Fish & Game. In that case the overgrowth of aquatic weeds caused by the federal government’s refused to allow the water draw-down of the lake necessary to

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control the weed growth, which action ultimately resulted in the public’s inability to use the lake for recreational purposes.

(q) First Amendment freedom of expression – people consider their gardens an expression of themselves, an art form. Without proof of the functional superiority of native vegetation over non-indigenous vegetation, the City Council is simply imposing its personal taste on all shoreline homeowners’ property.

(r) Given how little public shoreline land there is on Bainbridge, off-site mitigation could end up being mandated on a neighbor’s private land; this would constitute a governmental ‘taking’ of the neighbor’s land – imposed on someone who has absolutely no relationship to new construction other than having the misfortune to be located next door. In that situation, while the building landowner would have a Nollan ‘nexus,’ the person upon whose property the mitigation burden was placed would not – thereby rendering unconstitutional the ‘taking’ of that neighbor’s property.

G. Reduction/Elimination of Ocean Views for Shoreline Owners.

1. Dense vegetation requirements with its mandate of trees every 20 ft., bushes every 5 ft., and a 65% ‘vegetation canopy’ – all right in front of your ocean view – will have a dramatic impact on ocean views. SMP 4.1.2.5.5(a) and 4.1.2.5.3(c).

2. The City may not allow you to trim vegetation to maintain or re-establish an ocean view if ecological functions will be ‘compromised’ (there is no definition of ‘compromised). 4.1.3.3.9

3. The City may not allow you to trim vegetation to maintain an ocean view if this would have an “adverse effect” (note: not a significant adverse effect) on (a) “habitat value” (no definition); or (b) the “health of surrounding vegetation”; or (c) the “risk of wind damage to surrounding vegetation.” (Note: not significant risk or significant damage.) SMP 4.1.3.8(d)(ii)

4. You will not have a view if the City mandates that you screen the view of your house so that people out on the waters will not have to look at your house. (No, I am not kidding.) SMP 4.1.2.1 Screening is deemed an “appropriate” way to address impact of development, use or “activity”; the SMP refers to this as “enhancement” of the public’s view. (See definition of “enhancement” in SMP 7.0 ) While these regulations are vague, City planners have apparently explained to shoreline homeowners that this is the purpose of the “screening” requirements. A segment of the Bainbridge community feels that houses on the shoreline are ugly and wishes to hide them from public view. (Obvious First Amendment issues, as discussed below with respect to the sight of docks, piers and floats, which are also deemed to be ugly.)

5. You may not have a view because the City will not let you locate your house anywhere that it would have a view because you would interfere with existing views – not only of neighboring properties, but also from public easements and rights-of-way. “The public’s visual and physical access provided by shoreline road ends, public utilities and rights-of-way shall not be diminished.” SMP 4.2.4.5.6

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Issues:

(a) The loss of ocean views will have a devastating impact on the market values and salability of Bainbridge waterfront properties. This is stated not as an attorney, but as the partner in a two-person team that has bought and sold many waterfront properties over the last 30 years. This singular attribute can be worth hundreds of thousands of dollars. For every homeowner, the purchase of a waterfront property involves a financial investment expectation decision as well as an emotional decision. The impact of the vegetation requirements thus involve a Penn Central ‘taking’ of market value that cannot be justified as valid regulations because they constitute ‘restoration on steroids,’ rather than merely mitigation. (Armstrong equal protection denial.) As such, they could be viewed as within the ‘arbitrary and capricious’ category that the Supreme Court treats as invalid, or as conveying a greater public benefit than the preventing public harm under the Washington State case law that equate to a Fifth Amendment ‘taking.’

(b) Elevating the ‘right’ of the environment to grow unrestricted above a homeowner’s right to use his property – including how and where he prunes his vegetation – is contrary to the conflict resolution provisions of the DOE Guidelines, which make environmental preservation “subject to” private property rights. WAC 173-26-201(2)(d)(i)

(c) Requiring vegetation to “screen” the public’s views of houses from the water and also from public rights-of-way elevates what may – or may not – be a “right” in the public to have a certain type of view of the shoreline that equates to personal aesthetics – that is, the view of homes is clearly viewed as ugly by those who drafted the SMP – this is a First Amendment issue. Further, the only view expressly protected by the SMA/DOE Guidelines is the water view. WAC 173-26-221(4)(b)(iii)

H. Elimination of Private Single-Family Water-Dependent Use.

1. The State wants to limit the size of private docks WAC 173-26-231(3)(iii)(b); the SMP has as its goal the reduction of the number of docks. 6.3.2

2. By far the largest SMP designation is the Shoreline Residential Conservancy, which covers roughly three-quarters of the total Island perimeter. In that most populous designation, along with the Island Conservancy, docks and piers are allowed only as a conditional use. SMP 6.3.5.1 They are banned completely in the Natural and Priority Aquatic designations. SMP 6.3.4.1 They are also banned in several smaller areas – Pigott Point, Murden Cove, Blakely Harbor and Restoration Point. SMP 6.3.4.3, SMP 6.3.4.4 and SMP 6.3.3.8(a) Thus, there are only two designations where docks and piers are expressly permitted – Urban (meaning the main harbor of the Island – Eagle Harbor – hard to preclude boating there…) and Residential. 6.3.4.1

3. There are similar bans and restrictions on marine railroads, which are used to carry boats to and from land in areas where narrow channels preclude homeowners from having docks and piers. When you ban a marine railroad, you are banning the homeowner’s ability to boat at all, in these areas.

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4. The ban on private docks and piers in SMP 6.3.4.1 affecting the Natural and Priority Aquatic designations is not limited to new docks and piers; hence, it mostly likely will be applied to all existing docks and piers in those designations. This raises the question as to whether people with existing facilities must remove them. Or, does it mean that if you can leave them in place, you can’t use them? (Due process lack of clarity again, along with unfettered discretion in Planning Department.)

5. Ban on any private docks in new subdivisions and short subdivisions. SMP 6.3.7.6 In return for a building permit, the developer must sign and record a restriction that runs with the land against private docks and piers. SMP ________.

6. Effective bans that could be imposed on docks and piers anywhere and everywhere around the Island: docks and piers are prohibited at locations where there are “critical physical limitations” such as “shallow sloping bottoms; areas of frequent high wind, wave, or current exposure; high littoral drift areas; or slide prone and/or feeder bluffs.” SMP 6.3.3.3(b) In a separate paragraph banning docks and piers there is yet another description of “critical physical limitations” with additional categories: “…areas of frequent high wind, wave or current exposure as depicted by charts, isometric maps, or other technical sources; or areas with high levels of accretion, or geological hazardous areas (outside of harbors) and/or feeder bluffs…” SMP 6.3.4.2, emphasis added to distinguish from prior cite.

7. Ban on any new floats anywhere ostensibly on the basis that, while the shade from trees is beneficial to salmonids, the shade from a float (which is made of wood, from a tree) is harmful. SMP 6.3.7.3.1

8. You cannot have stairs unless you have a bulkhead to attach them to, and you cannot have a bulkhead if you are on a feeder bluff or unless you are within three years of house damage/destruction. In the latter situation, even if you are allowed to have a bulkhead, your stairs will probably not last very long, so why spend the money? (Approx. $35,000 for stairs to a 60 ft. bluff).

9. Ban on stair size greater than 250 square feet: this will not reach the tallest of our bluffs. SMP 4.1.3.9.2

10. Trams are allowed by the City, but their cost (approx. $120,000 for a 60 ft. bluff, with roughly 10 times the repair costs) may serve as an effective ban on them, too.

11. The use of boat motors is banned in certain designations – Natural and Priority Aquatic, without any proof that this has caused any environmental damage in the past. SMP __________. However, this authority may very well be pre-empted by federal law (and/or State law), given these are all navigable waters – which usually means federal jurisdiction. In any event, the extreme danger that exists when you do not use a boat motor to help you moor – which can result in your boat crashing into the dock or pier – will likely serve as an effective ban on boating in these areas. SMP __________

Issues:

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(a) The SMA and DOE Guidelines espouse as one of their goal to promote water uses, especially water-dependent (single-family residential). Under “Preferred Uses,” the DOE Guidelines state that local governments shall [r]eserve shoreline areas for water-dependent and associated water-related uses.” WAC 173-26-201(2)(d)(ii) The DOE Guidelines further mandate that local governments “locate single-family residential uses where they can be developed … without … displacement of water-dependent uses.” WAC 173-26-201(2)(d)(iv) The SMP regulations are therefore in conflict with State law and hence, under Biggers, ultra vires and invalid.

(b) Potential federal pre-emption issue; I have been advised that all ‘navigable waters’ are under federal jurisdiction – including the Bainbridge waters – and that the docks and piers may also come within that purview. This is an area yet to be explored. Certainly, use of boat motors in navigable water must come within exclusive federal jurisdiction.

(c) Stairs - landowners have a right to access water on or adjacent to their property. (Hudson House, Inc. v. Rozman, Estate of Hage v. U.S.) Regulations that effectively preclude that ability amount to ‘takings.’

(d) Lack of scientific proof that the exclusion of mankind from the private shoreline is necessary to prevent the kind of damage that cannot be mitigated so as to result in ‘no net loss.’

(e) Taking all ability to engage in water-dependent uses is a Penn Central type ‘taking.’

(f) It would appear that one of the motivating factors for the ban on docks, piers and floats are based on the feeling by a segment of the Bainbridge population that these structures are unsightly, and that they should therefore be eliminated. Apart from the fact that someone forgot to tell the Impressionists, let alone a very large number of other famous painters, personal aesthetics are not a valid basis on which to rest a land use restriction. The First Amendment obviously precludes such government action.

I. Public Access Over and On Private Beaches – the Dirty Little Secret.

1. In exchange for a building permit, ostensibly only where new construction will block existing public access, the City may require public access in many forms, including a 10’ wide path or a viewing tower on your property. SMP 4.2.4.7 and 4.2.4.6.2. Problem: regulation may do an end-run around State prescriptive easement laws if prior access was a trespass.

2. In an area where virtually all beaches are private, granting public access to the water means that people will use the private beaches. More people sunbathe than swim; they are very unlikely to simply lie down on the 10 ft. path to the water’s edge to do that. So, public access ‘to the water’ effectively means the creation of public beaches – on private land.

3. The City proposes using ‘public’ utility easements, road ends and road rights-of-way for public access to the water/beach. SMP 4.2.4.4.4

Issues:

(a) Taking of right to exclude others (Nollan).

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(b) The SMA and DOE Guidelines strictly limit public access to public beaches, not to private beaches. WAC 173-26-221(4)(c) The SMP conflicts with State law when it fails to limit public access to public beaches.

(c) Utility easements are usually granted not to a city, but rather to a separate single-use corporation created solely for the purpose of operating that utility; hence, the City probably does not actually have any easement to convey to the public. Second, a utility easement is limited in scope and purpose: it is granted for the specific purpose of installing and maintaining the particular utility – and nothing else; and it usually runs only from the road to the house – it does not run to the beach. It is extremely likely that use of utility easements would simply be City-encouraged trespass.

J. Creation of Mixed-Use Designations to Impose Tighter Environmental Controls Over Areas Than Accurate Designations Would Allow.

1. Tossing “Residential” and “Conservancy” into the same pot lets the City impose conservation standards on areas that would be more appropriately designated as purely “Residential,” where such tight restrictions would not be allowed under the DOE Guidelines The same applies for “Aquatic” and “Priority Aquatic.”

2. Ten-year old aerial photographs were used in some cases to create designations and thereby substantiate tighter restrictions on use than would otherwise be allowed by a recent aerial photograph or physical inspection.

Issues:

(a) The SMA and DOE Guidelines mandate that designations be accurate, based on science.

(b) The science used should be recent and appropriate.

III. The Big Picture – The Ultimate Result.

A. The City Exercises ‘Complete Dominion and Control’ Over All Shoreline Properties; the Relationship Between the City and the ‘Homeowner’ Has Become One of Landlord/Tenant.

1. SMP 4.4 provides that: “Uses, modification activities and conditions not listed as ‘prohibited’ and not listed in Table 4-1 shall be reviewed through the Shoreline Conditional Use process.” In addition, SMP 4._____ provides that any change of use or activity must be pre-approved by the City. This completely guts a landowner’s rights to use his land, subject to governmental regulation for public health, safety and the environment. This puts the City firmly into the driver’s seat. It makes the City the landlord, and the property ‘owner’ its tenant.

2. The DOE Guidelines and the SMP basically reverse what has, I believe, been considered the established order of rights. In the past, the individual has been viewed as having the right to engage in any activity, subject to regulation by the City. Now the order is flipped: the environment must be preserved, subject to private property rights. WAC 173-26-201(2)(d)(i)

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3. Lest anyone think that the City will simply rubber stamp any activity or use in which a homeowner wishes to engage, after the passage of the SMP and the end of the public comment period, the City inserted a provision to the effect that: “The Administrator may reduce, alter or deny any proposed development or use or activity to satisfy any preferred [City] policy.” New SMP p. 57.

4. Some of the most basic American institutions involve outside activities and, especially, patios and lawns – which the SMP precludes shoreline homeowners from having. That is, we all love lawn sports – soccer with the child/grandchild, softball practice, volleyball, croquet, bocci ball, tag football à la the Kennedy’s. And we love backyard barbecues – and we don’t want to start a fire by having hot drippings ignite uncleared vegetation. We love to lie out on deckchairs and sunbathe, or simply enjoy a warm summer night with a glass of something. The SMP takes away the ability of the shoreline homeowner to do all these things.

5. The size of a new house is decided by the City; but then, too, whether you can even have a house is decided by the City. Whether you can remodel or modify an existing house is decided by the City.

6. “Maintenance” of all new – and existing – homes is subject to City control/pre-approval. While the parameters of this new regulatory area are unclear (serious due process issues), the City has given itself the authority to regulate all maintenance of houses. As such, this could mean gutter replacements, patching the roof, painting the house, changing out a broken window. “All shoreline use and development, including preferred uses, and uses that are exempt from permit requirements, shall be located, designed and constructed and maintained in a manner that protects ecological functions.” SMP 4.1.2.4.1

7. “Maintenance” of all new – and existing – gardens is subject to City control/pre-approval: trimming, minor and major pruning, weeding, tree topping, minor and major vegetation removal/clearing, “stripping of branches,” the amount of a tree crown that can be removed, You need to prove that any vegetation removal was the “minimum necessary” to maintain your view. No branches overhanging water (and blocking your water view) can be pruned. And there can be inspections afterwards to make sure you did it properly! SMP 4.1.3.9.1

8. All “modifications,” “alterations” and “changes to” a house require City pre-approval. SMP ________.

9. An existing home can only be modestly increased in size – away from the water – but only so long as environmental damage is either mitigated “or restored.” SMP 4.2.1.3.6 Restoration is inconsistent with the SMA and DOE Guidelines, and what the City is requiring of its shoreline homeowners is even more than restoration- the DOE definition of “Restoration” says that taking the land back to an “aboriginal” or “pre-European settlement” condition is not required, even for restoration.

10. The groundwork is laid in the SMP to regulate on the basis of aesthetics – that is, imposing others’ personal tastes on shoreline homes and gardens, and even establishing the potential for prohibiting new development on that basis. For example, the SMP requires planners

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to “[m]inimize development that will interfere with…aesthetic values…” SMP 4.1.1.3.4(a) And they should “[a]ctively promote aesthetic considerations when contemplating new development, redevelopment of existing facilities, or general enhancement of shoreline areas.” SMP 4.1.1.3(c) Also, “Residential development…should be designed to…(b)e visually compatible with adjacent shoreline features, reasonable in size, and purpose…” SMP 5.9.3.2(c) All of these are judgment calls based on a planner’s personal tastes.

11. The amount of hard surface the homeowner can have on his lot is regulated by the City. SMP __________.

12. How composition and width a garden path is regulated by the City: 4 feet wide maximum, with “hand-installed steps.” SMP 4.1.3.9.1.

13. The groundwork is laid for the City to establish a wildlife habitat in your back yard. And you must pay for it. The owner who builds or remodels must pay for a wildlife expert to inspect his property and tell him how to turn it into a wildlife habitat. This is the gist of the wildlife conservation report that must be submitted to the City to get a building permit. SMP ______.

14. The pitch of the lights you mount in your parking area is regulated by the City to avoid putting any glare on public access or rights-of-way nearby. SMP ________.

15. Whether you can have a private dock, pier or float is all decided by the City: they are banned in the Natural and Priority Aquatic designations. SMP 6.3.4.1

16. Whether you can operate your boat motor – and thereby boat at all – is controlled by the City: it is banned in the Priority Aquatic designation. SMP ____________.

17. Whether you can have stairs to access your beach is controlled by the City’s regulations in high bluff locations.

18. Whether or not you can protect your home from erosion is decided by the City.

19. Whether you are physically able to use any portion of your yard for other than growing native vegetation and serving as a wildlife habitat is decided by the City.

20. Whether you have a view of the ocean is in the City’s hands – by virtue of its tight restrictions and pre-approval requirements for vegetation clearing, trimming, pruning, and removal. Vegetative screening around your house to “enhance” the public’s shoreline view from the water will also serve to reduce or block your view.

21. All decisions regarding vegetation on shoreline properties are now made by the City: selection of vegetation species and size, installation locations, routine ‘maintenance’ and removal/replacement decisions.

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22. There seem to be some word games being played by the City throughout the SMP: they always refer to what the homeowner must get before he engages in some use or activity as “pre-approval,” never a “permit.” However, it is standard practice in the Planning Department to never do anything that is not in writing and does not have a fee attached; so, if we assume that the “pre-approval” requirement involves a writing and money, how is this different from a “permit?” The City may believe that they can deny having created a mountain of new permit requirements by way of the SMP, but – to the rest of us – this is a distinction without a difference.

Issues:

(a) It doesn’t matter if you still hold title to the property, if you can’t make any decisions about its use, title doesn’t even matter anymore.

(b) ‘Dominion and control’ – the person who has the right to make most, or all, of the decisions regarding a property is a basic indicia of ownership. The City is no longer regulating, it is controlling; in short, it owns the shoreline. The above-listed decision-making authorities, which are conferred upon the City under the SMP indicate that, through the SMP, the City is given effective ownership of all Bainbridge shoreline properties. For that, the City owes a very big bill.

(c) Even if one doesn’t buy into the ‘complete dominion and control’ argument, one must conclude that the weight of the burden placed on the individual shoreline property owners is enormous. Is all of this really necessary? Is it justified? The shoreline may be of ‘statewide interest and significance,’ but is that really enough to impose this weight on individuals rather than on the government? If the environmental resources are so valuable, shouldn’t the government be paying for them? In short, you get back to equal protection Armstrong issues.

B. Impact on Market Value and Salability of Shoreline Property.

1. The loss of ocean views is devastating for shoreline property market value and salability; potential waterfront buyers will go to other islands to buy rather than here. Or, at least, I know I would, and I’m a long-time, multiple shoreline buyer.

2. A close second behind water view as an element of purchase price is access to water. Even the Washington Supreme Court found that “This is often, in fact generally, the greatest value of the property.” Hudson House, Inc. v. Rozman, 82 Wn. 2d 178, 184 (1973). This element infers the ability to actually use the beach and the water for recreation: swimmers, boaters, just plain old sun worshippers and shore walkers place enormous value on this ‘residential amenity.’ Anything that blocks or prevents recreational use of the water diminishes market value and salability substantially.

3. ‘Restrictions have consequences.’ How many people will want to buy land for development or existing homes in an area where you have little to no right to make decisions about ‘your’ land? Even an unsophisticated answer has to be – very few. This will, inevitably, radically diminish the market value and salability of Bainbridge shoreline properties.

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4. The homeowner’s ‘reasonable investment expectations’ have been taken in accordance with the Penn Central ‘taking’ rationale. As of now, we have only scattered stories of potential buyers walking away from shoreline properties on the sole basis of the Bainbridge SMP; with time, we will unfortunately have the economic proof. Realtors quietly agree with this assessment, but will not risk alienating potential sellers by publicly taking a stand.

C. Legal and Societal Issues.

1. The SMP establishes a totally different legal system for the shoreline: instead of an individual having the right to do things without governmental permission, everything he does that involves his land must be pre-approved by a planner.

2. Overall, the SMP has huge due process issues: ambiguous language, lack of definitions, unfettered discretion in planners without guidelines, creating the perfect environment for bribery and extortion to flourish, punishments for ‘offenses’ that do not cause any harm – punishments without any right to trial.

3. Through the SMP, upland property owners are incentivized to report any and all transgressions of shoreline property owners to the City. If they can substantiate – as a group – that a shoreline home is unoccupied for 12 consecutive months, they get a free beach park. The City may not have the actual title to the land, but with the homeowner unable to use the house, there is no one to physically prevent trespasses from happening.

If upland property owners report gardening, house maintenance and ‘modification’ transgressions that occur without permits, with time the hassle factor may force waterfront property owners to move away. They really can’t sell their property, since no one wants to buy, so the end result if they get run out of the neighborhood is, again, a free beach park.

The final coup de grace is that the City has the authority, under the SMP, to require that neglected structures on the shoreline be demolished by their owners. SMP _______.

4. The bottom line is that, as a ‘regulatory’ system, the City is turning the shoreline into a totalitarian state where the only personal freedoms that can be exercised without restrain exist inside the walls of the house. As such, does it even matter that one is located on the waterfront?

5. The imposition of radical environmental conservation measures on a fully-developed area such as Bainbridge Island will be jarring. Requiring that everyone relocate their homes farther away from the water is not simply a futile gesture, it is insane (a well-known technical term). The cost is prohibitive – both in terms of the house movers and the reduction in market value relative to the loss of water view. For some people, it isn’t even possible to comply with the new buffers because their lots are too shallow. Similarly, getting some people to even like native vegetation is a chore – let alone to get people to plant a solid row of vegetation right in front of their water view (and their neighbors’ oblique ocean views). This is way too heavy a load to place on shoreline homeowners. And for what? The use of residential property is not exactly like operating a nuclear power plant; what valid, rational basis exists for these all-pervasive regulation?

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This is the test case for when shoreline regulations have gone, in Justice Holmes words, “too far.”

Need I say more…?

But there is more -

This is a very compact summary of what is turning out to be an analysis of about 100 pages that I intend to send to the DOE when its public comment period begins. It is still a work in progress with missing cites, jumbles here and there and quotations I want to add, but it contains all of these basic concepts and a few more. When it is finished, I would be happy to share the end product with you.

Linda J. Younglawfulpatterns@msn.com(206) 780-3208

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