The City Council refused to stop at any point and make changes to respond to the concerns and needs of shoreline homeowners. They truly felt that these regulations would save the earth. But their desire was totake all of this land and turn it into a public park – some City Council members actually said this. In their passion, these people – including City planners – refused to take into consideration that this land is not public land, where the government can ban any kind of activity on it at all. This land is private propertyand it is owned by people who live under, and whose rights are protected by, a constitution.It is for these reasons that I beg that the State Attorney General’s Office engage in a constitutional reviewof this SMP. This runaway train needs a brakeman, and that’s what the AG’s Office can be.
consistent with the SMA and the DOE Guidelines,
an SMP must respect private property owner’sconstitutional rights – both the SMA and the DOE Guidelines say so. To be valid, an SMP must be
consistent with the U.S. Constitution. An SMP that is consistent with state law, but inconsistent withthe Constitution, is unlawful and if this SMP is approved by the DOE, it can expose the State toconsiderable liability.
A consistency review that does not include a constitutional review is failing toabide by these principles and, more importantly, it is doing nothing to avoid a predictable disaster.I’d like to let you into a secret about the Bainbridge “consistency” review. Throughout thisvoluminous SMP, there different places that discuss the same thing in complete conflict. In oneprovision, the SMP pays lip service to state law and says what it’s supposed to say to be consistent.
This is in the most obvious place in the document. Then, there are the other places, or “exceptions”
to things like ‘exemptions’ from the SMP where the City has put in the exact opposite of what the staterequires. These are usually much harder to find, or they are contained in language that just doesn’t makemuch sense – until you get the background on what the Planning Department or the City Council has told people. And how this works is –
SMP 4.6 is a governing rule of construction for the whole documentthat says when two provisions collide, the more restrictive one shall prevail.
So, while the SMP maysay that it doesn’t apply to the maintenance of existing gardens, but it then has all kinds of requirementsfor City pre-approvals to trim, prune, top, remove or clear anything, these ‘more restrictive’ provisionsapply. Hence, while Bainbridge
its SMP was consistent,
it really wasn’t.
The requirement of a constitutional review is implicit in the SMA and DOE Guidelines.
establishes as its goal,
while at the same time, recognizing and protecting private rights…”
RCW 90.58.020, emphasis added. In no less than 17 places, the DOEGuidelines caution local governments about respecting private property rights. Lawyers’ footprints are allover the
, and it very explicitly state that: “Local government should use a processdesigned to assure that proposed regulatory or administrative actions
do not unconstitutionally infringeupon private property rights
.” WAC 173-26-186 (5), emphasis supplied. They say that:Local government may find it necessary to regulate existing uses to avoid severe harm to public health and safety or the environment and
in doing so should be cognizant of constitutional and other legal limitations on the regulation of private property.
WAC 173-26-191(2)(a)(iii)(A), emphasis supplied.Overall, the SMA and DOE Guidelines mandate that local government design and implement land use policies “in a manner consistent with all relevant and other legal limitations on the regulation of private property.” WAC 173-26-186 (8)(b)(i). That private property rights must always be respected is inherentin the Guidelines admission that:
“[s]ome master programs may not be fully attainable by regulatorymeans due to the constitutional and other legal limitations on the regulation of private property.”
WAC173-26-191(1)(a), emphasis supplied.
The U.S. Supreme Court has emphasized that mere lip service to private property rights is notenough. Justice Scalia in the
case observed that:
We view the Fifth Amendment’sProperty Clause to be more than a pleading requirement, and compliance with it to be more thanan exercise in cleverness and imagination.”
Nollan v. California Coastal Commission,
U.S. 825, at841 (1987), emphasis supplied.8/23/132