Appeals Court to Rule Again on Shorelines in Case That Involves Kitsap Group

Appeals Court to Rule Again on Shorelines in Case That Involves Kitsap Group By Christopher Dunagan Wednesday, April 28, 2010

OLYMPIA — An ongoing dispute about which of two local laws govern shoreline buffers will go back to the Washington State Court of Appeals.The central case in the dispute, Kitsap Alliance of Property Owners v. Kitsap County, was remanded Wednesday by the Washington State Supreme Court, which is asking the Court of Appeals to take another look at the case in light of a new state law.The Legislature attempted to resolve the dispute in March, when it passed a law <http://www.kitsapsun.com/news/2010/mar/05/bill-would-allow-shoreline-buffers-spelled-out/%20> saying that local governments should use their “critical areas ordinances” until shoreline plans are updated. The law was made retroactive for counties already using their critical areas ordinances, as Kitsap County was doing. After the law was passed, attorneys for Kitsap County asked the Supreme Court to dismiss the KAPO case, saying it was made moot by the legislation. But attorneys for KAPO countered that the Legislature had overstepped its constitutional authority by attempting to reverse the outcome of a court ruling.“Of course, the Legislature can change the law going forward,” said KAPO’s attorney, Brian Hodges of the Pacific Legal Foundation. “But the idea that lawmakers can go back and overturn past court decisions that were based on the law as it then existed is nothing short of surreal — even Kafkaesque.”The dispute started five years ago, when Kitsap County updated its Critical Areas Ordinance. The ordinance contained larger no-build buffers for shorelines than were required under the older Shorelines Master Program. KAPO filed suit over several provisions of the Critical Areas Ordinance. When the case reached the Court of Appeals in September, <http://www.kitsapsun.com/news/2009/sep/09/court-overturns-kitsaps-shoreline-buffers/%20> the court ruled against the county, citing a previous Supreme Court ruling, called Futurewise v. Western Washington Growth Management Hearings Board. In the Futurewise case, which involved the city of Anacortes, the Supreme Court ruled that local shorelines plans — not critical areas ordinances — govern properties along the shoreline.Because the ruling failed to garner a majority vote of the Supreme Court justices, some local officials, as well as staff with the Washington Department of Ecology, contend that the ruling is not binding on other jurisdictions.Ruling in the KAPO case, the appeals court made note of the conflict within the Supreme Court’s ruling.“The problem may be alleviated somewhat if our Supreme Court can muster a clear majority on the topic,” the court said. “Ultimately, however, the Legislature must clarify how, if at all, the GMA (Growth Management Act) provisions ... apply to critical areas that also happen to fall within the SMA (Shorelines Management Act) shore land jurisdiction.”The appeals court now will get the opportunity to determine whether the Legislature fixed the problem or just added more confusion.