10/5/2018 AM
SMP HOMEOWNER ISSUES
The City seems to believe that all of these regulations are necessary to “save the environment.” But, when the City went to find proof that shoreline homeowners are harming the environment, they couldn’t find any. So to prove that people harm the environment, they used studies from cattle feed lots and commercial crop growing where a lot of pesticides are used. According to the Constitution and the Supreme Court, to be lawful, regulations have to be rational¸ they must serve a valid purpose and they must be designed to solve an actual problem created by the owner’s use of his land.
1.All existing homes and gardensare zoned “nonconforming.” These nonconforming use regulations let the City take away your right to live in your home for reasons that do not make any sense. This zoning label impacts the market value of your property and your ability to sell it. Even after the big public protests about it in the spring,the City Council did not do anything to change the fact that the SMP zones all existing shoreline homes “nonconforming” and subject to having their use “phased out.” Contrary to what various City Council members have said, these nonconforming use regulations are entirely different from any others; they have no support in existing law.
(a) If you leave your house for a year – even for a perfectly good reason, like caring for your elderly mother in Spokane – the City can take away your right to use your house. Except that they can’t – at least not legally. Your right to use your house is one of the three fundamental property rights the Constitution and the Supreme Court protect. The right to use your property can only be taken away in extreme health and safety-type situations by the government – not anything like what we’re talking about here. Otherwise, if the government takes away the right to use your house, this is a Fifth Amendment ‘taking’ for which they have to pay you. The proof that this is an irrational regulation is this: if the City thinks you are doing so much harm to the environment, why aren’t they rewarding you for being away for a year, instead of punishing you? The regulation is going to have the opposite effect of what they intend, if their intent really is to protect the environment: people will not leave the shoreline for fear of losing their homes and, if you believe that people’s residential use hurts the environment, then there will be more environmental damage, not less.
(b) If your house burns down and it wasn’t by natural causes – that is, maybe it was an accident, like when you forget to turn off the heat under the pan on the stove - then the City won’t let you repair or rebuild your home. But this isn’t consistent with the DOE Guidelines that say you can repair or rebuild an existing shoreline house – without any if’s, and’s or but’s. Household accidents are probably the greatest cause of casualties; but they are accidents- and our legal system doesn’t usually punish people for accidents. What valid purpose does this serve? Punishing people for accidentswill not keep them from happening. The only logical reason for this is to get rid of a shoreline property owner? This isn’t a legitimate public purpose.
(c)Even if your house wasdestroyed by natural causes, so you can rebuild, the City has all kind of unrealistic, ‘gotcha’ regulations that can trip you up and take away your right to rebuild or even to finish rebuilding your house. (A complete application to rebuild must be filed within 2 years of the casualty; the house must be completely rebuilt within one year of the start date; and a one-year extension is allowed only if City decides you weren’t responsible for any of the delay and you file your request for an extension within a small time window.} Why the rush? The SMA allows someone a full five years to build a house, plus reasonable extensions. After a casualty, you have to find anew place to live, move everything, buy new things to replace what you lost, fight with the insurance company over money, get some additional bank financing and still go to work… This argues for more time, not less. Besides, this isn’t the way people off-water are treated. The Equal Protection Clause says that all people must be treated equally under the law: so, without some pretty good explanation for treating shoreline homeowners differently than others, this regulation is unconstitutional.
2.If your right to use your house is taken, there is no clear-cut way set out in the SMP on how – or even if – you can ever get it back. The SMP merely says that getting back the right to use your house is “restricted.” What does this mean? Something called “due process” – meaning clearly written laws and the right to trial – requires that you be given a way to get your house back . Otherwise, you are being ‘deprived of property without due process and just compensation.’ The grounds for taking your house away from you, which are described above, make it sound like you are being punished for something you did. But why are you being punished? Nobody and nothing is harmed by what you do, or don’t do, in these cases; the American legal system says there must be damage – and a significant amount of it – before anyone gets punished. And, whenever there can be punishment, there must be a trial. This is another thing that “due process” means. The SMP doesn’t involve any of these things, which leads you to believe that the City is just taking away your right to use your house so that they can create a public park without having to pay you anything. Of course, if that is the only reason for what the City is doing, this is a Fifth Amendment ‘taking’ for which you must be paid.
3.The SMP bans bulkheads for erosion that is “unrelated to water” or if you live on a feeder bluff. What difference does it make to you or your insurance company what type of erosion is causing your house to fall into the ocean? Why can’t you have a bulkhead? After all, you have a constitutional right to protect your property – the Supreme Court says so. The restrictions on making repairs to bulkheads don’t make any sense: you can only repair 50% of your bulkhead every 5 years: this increases the chance that you will lose 50% of your bulkhead every 5 years until, finally, you don’t have a bulkhead any more. This amounts to an effective abolition of all existing bulkheads, leaving your property unprotected. If you need a bulkhead but can’t get one, your house will become uninsurable. And you won’t be able to sell your house – nobody wants to buy a house that looks like one of these days it won’t be there any more… Six years ago the City – our City – lost a very big lawsuit called “Biggers,”where the Washington Supreme Court held that people have a right to protect their property with bulkheads. Why does the City want a re-run of that movie?
4.If you live anywhere in the biggest SMP area – called “Residential Conservancy” – you can only have a new dock or pier if you can get a conditional use permit. If you live in the Priority Aquatic area or the Natural area, you can’t have a dock or pier at all – new or existing. Or, at least, that’s what the SMP says. So what do you do if you already have a dock – are you supposed to remove it? The SMP doesn’t say. Even if you’re allowed to keep an existing dock, the City imposes the same kind of repair restrictions as with bulkheads – the kind that lead to the dock being destroyed by nature – you can only repair 50% of the dock every 5 years. In addition, the SMP gives the City the power to ban docks and piers anywhereit thinks any of these exist: “shallow sloping bottoms,” high winds, high waves, “current exposure” (huh?), high “littoral drift areas” (huh?), slide-prone areas or where there is a feeder bluff. This could be anywhere and everywhere… Plus, if you live in the Priority Aquatic area you can’t use a boat motor, which means that you can’t safely moor your boat. Of course, if you live in the Priority Aquatic area, you can’t even have a dock, so maybe this isn’t a problem. To cut down even further on the number of people who use boats, the City prohibits buoys unless they can be spaced 100 ft. apart. And there can be no more floats; presumably because they create a type of shade that is harmful to young fish. On the other hand, the City says that the type of shade created by trees (wood – right – just like the float?) is beneficial to young fish. A study to support that? Nope.
Why take all these things away from people? The City has never produced any actual scientific study to prove that docks, piers, floats or buoys do anysignificant damage to the environment.Maybe because there isn’t one. Marine creatures can be a lot more resilient than we sometimes give them credit for. In short, while the City may have good intentions,if it can’t even prove that docks, piers, floats, buoys and/or boat motors do any significant harm, the City doesn’t have the “rational basis”the Supreme Court requires for a regulation to be valid. Without a rational basis, a law is called “arbitrary and capricious” and it is unlawful.
This taking away of single-family water useisn’t something the SMA wants; it says it wants to promote single-family water use since that causes the least damage to the environment. This means that what the City is doing in the SMP is contrary to State law, and so, under the State Constitution, it is invalid.
5.The SMP bans any new construction in three different areas – Natural, Aquatic and Priority Aquatic. In some areas, you can only build if you can get a conditional use permit. That means that not only can you not build your dream home there for retirement; it also means you probably can’t sell the land for anything like what you paid for it. There’s a general rule about land use regulation: a government can regulate how you use your land, but it can’t completely stop you from making any economically viable use of your land. If it does, it’s probably a Fifth Amendment taking of your land by the government for which you should be paid.
There may not be a good reason for this ban – there are already plenty of houses in these areas – it’s not as if this is untouched virgin soil. Why does your lot have to be the one the City says can’t be built on? Why are you singled out? The Equal Protection Clause of the Constitution says that all people are supposed to be treated equally by the government, unless there is a really, really good reason not for doing that. So, if the City’s ban on new development is just really punishment of those people who are the last to build, it’s a violation of your equal protection rights and it’s invalid. But, of course, if the City is banning new development just so that there will be some empty land for the public to use as a park, this is a Fifth Amendment taking and the City owes you some money…
6.The new buffer requirements may mean that you can’t fit a house on your lot. But the Supreme Court has said that you can’t use buffers to prevent any use of a property,especially when almost all the lots around you have already been built on with prior, smaller buffers. To force these new buffers on you, so that you can’t build, is another violation of the Equal Protection Clause of the Constitution, which says that all people are to be treated equally under the law., unless you have some really, really good reason for not doing so. State law – the SMA – says that SMPs are supposed to have provisionsto avoid “unnecessary hardship,” but the Bainbridge SMP doesn’t have any. As harsh as the law can often seem, there are some attempts to put some ‘fairness and justice’ into it;this is one example. Since you would probably have a huge financial loss if your lot could not be built on, the DOE Guidelines say that the government must bend the rules to help you. The State may say this, but the SMP is not consistent with the State law – which, to be valid under the SMA, it has to be. So, the buffer requirements could be found to violate the Equal Protection Clause of the Constitution and they can be found to conflict with State law where “unnecessary hardship” would be caused by a rigid following of the SMP regulations.
7.The SMP forces people to restore the land to its original, natural condition; this is not required by the SMA – the only thing it requires is that you repair the damage you did to the environment. The Supreme Court says that when a few people are singled out to pay a huge price for something that, “in all fairness and justice,” all of the public should be paying for, this is a violation of the Equal Protection Clause of the Constitution, and therefore it is a Fifth Amendment ‘taking’ of property that requires compensation. Since forcing someone to restore the land to its original, natural condition is in conflict with the State SMA, this part of the SMP is invalid. It is invalid because the Washington Constitution says that local governments can only make laws that are consistent with state law; anything else is invalid.
8.If the City decides that you are subject to the SMP’s ‘revegetation’ requirements, whether because you want to build a new house or because the City decides that you have engaged in some “change of activity” in your yard that subjects you to these provisions, the City requires that you sign over a “conservation easement” that commits your property – for all eternity – to “native” vegetation. This is binding on anyone who buys your property, so a would-be buyer’s preliminary title report is going to show this as a restriction on title. This may not be well received by that buyer; it could have a chilling effect on a sale. This is actually what the U.S. Supreme Court calls an “unconstitutional condition,” in its most recent land use case. The Court held that asking someone to give up a property interest – such as this easement on your property – in exchange for a building permit is unconstitutional. If the conservation easement is being demanded just because you engaged in some ‘change of activity’,like the ‘phase outs’ of nonconforming use, this is actually punishment for your actions. So, once again, if there is going to be punishment, there has to be substantial damage resulting from your actions and you have to be given a right to trial; in this scenario, since the SMP doesn’t give you these things, any demand for a conservation easement constitutes a violation of your due process rights under the Constitution.
9.Your ocean view is a valuable property right that can be taken away by the SMP’s new regulations. If the City imposes its “revegetation” requirements on you, the tall trees and bushes that must be planted every 20 feet, and every 5 feet, respectively - right in front of your view – is going to take away your water view. And the vegetation canopy you have to create over 65% of the part of your lot that is closest to the water is also going to make people feel like they aren’t even on waterfront property. If you bought a waterfront lot to be close to the ocean, for its views, you will probably be very disappointed at the much smaller view you have when the new buffer zones push your new house much farther away from the water. This view has a real economic value and can only be taken away by the City for a really, really good reason. But, since the City based its buffer zones on the damage that cattle raising and commercial crop production do to the environment – not people’s residential use – it is doubtful whether this regulation has sound footing and can be upheld in court. Furthermore, this regulation is in direct conflict with the SMA, which says that single-family residential use of the shoreline is “preferred,” and even more than that, it is a “priority use.” It says that governments should give preference to single-family use over other uses.
10.The government doesn’t have the power to tell you what kind of vegetation you have to plant in your garden. This is unconstitutional. Regulations on gardening interfere with your personal freedoms – the right to use your property and the right to express yourself via your gardening.