Thursday, May 13, 2010

Appeals court upholds Whatcom County shoreline master program

By Gordon White, manager, Ecology Shorelands and Environmental Assistance Program

We got some important news this week that we hope will help towns, cities and counties across the state that are updating their shoreline master programs.

In a decision (PDF 103.34 KB) issued Monday, May 10, a state Court of Appeals ruled in support of Whatcom County’s segment of our statewide shoreline master program.

The legal decision says a law that limits local governments’ ability to impose certain development restrictions doesn’t apply to shoreline master programs because the shoreline program ultimately is a state product.

It’s important to remember that our Shoreline Management Act was adopted by voters of the state.

This decision should be a confidence builder for county officials as they continue to administer their locally-tailored shoreline regulations. We also hope the decision will allow other jurisdictions that are still involved in updating their shoreline policies and regulations to feel confident in using the years of collaboration and hard work already done in Whatcom County as a template for their own work.

For a little background: When Ecology approved the Whatcom County shoreline master program in August 2008, it was the first county update in the state under new requirements put in place in 2003. It was a landmark effort that significantly increases protection for Puget Sound, protects the rights of shoreline property owners, provides opportunities for public access to local shorelines, and protects all citizens’ public resources.

We were proud to report: “The new master program combines planning policies and implementation strategies, based on scientific data that establishes an ecological baseline of the county’s nearly 400 miles of marine and freshwater shorelines, and the upland areas that affect them. It is the result of five years of collaboration and hard work among groups representing state agencies, builders, farmers, tribes, local governments, and environmental groups.” (Read the whole news release.)

Since it was the first countywide program update, we aren’t surprised that it’s been tested by different groups at the local government level, as well as in court.

In this latest case, a community group called Citizens for Rational Shoreline Planning and the Building Industry Association of Whatcom County, which intervened on behalf of the citizens’ group, sued Whatcom County. They argued the buffers and building restrictions were the equivalent of taxes or fees by local government, something that’s prohibited under state law (RCW 82.02.020). Ecology intervened on the county’s behalf.

Skagit County Superior Court ruled that because Ecology is involved in every step of the process — including development, review and approval of the shoreline master program — the prohibitions in the law don’t apply. And when we approved Whatcom County’s segment of the shoreline master program, the state became a legal partner with the county.

When the citizens’ group appealed, the state appeals court affirmed the trial court decision, agreeing that the master program process is so driven by the state’s “pervasive involvement” that there are no circumstance under which that statute, RCW 82.02.020, applies to master programs.

The citizens’ group has the option to pursue an appeal at the state Supreme Court.

Shoreline master programs not only help us protect the ecology and beauty that draws us to the water’s edge, and to the Pacific Northwest, they protect our citizens’ rights to enjoy and use their shorelines, so we are glad for our citizens that the appeals court found in our favor.

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