SJ's CSA raises concerns over proposed 'non-conforming' legislation | Guest Opinion
March 8, 2011 · 2:26 PM
The Common Sense Alliance supports passage of SSB 5451 with certain language additions and clarifications set out below.
It generally supports the comments of the Washington State Realtors and others who support the bill. While the CSA applauds the efforts of Senator Ranker and the legislature to address the dramatically increasing number of structures rendered nonconforming by plans developed pursuant to the Shoreline Management Act, we urge (the state House Committee on Local Government) to ensure that the proposed bill does not in any way diminish the flexibility currently afforded local governments in developing land use policy or impose even greater burdens on shoreline property than currently exist.
POTENTIAL UNINTENDED CONSEQUENCES OF SSB 5451
The CSA shares with others the broad-based support of the general principle promoted by the draft legislation. However, the CSA has serious reservations concerning potential unintended but negative consequences of SSB 5451. The following brief describes the problem we see with the bill in its current draft form and offers concrete suggestions we believe will solve any potential problem while reinforcing the legislative intent and spirit of the bill.
The bill is described by its author as follows:
Under local shoreline master programs along Washington's coastline, if a shoreline buffer changes over time, residential structures already in existence could be defined as "nonconforming use." For residents, this can spell an increase in premiums and can even affect the marketability of a home for sale on the market.
Senate Bill 5451 simply removes the designation “nonconforming use” from residential shoreline evaluation. (Emphasis supplied.)
The proposed legislation does appear to eliminate the term “nonconforming.” It is not fully clear, however, what effect that change alone has on shoreline property. To the extent that insurers or lenders were concerned about the valuation of shoreline property deemed “nonconforming,” they were worried because the property owners were limited in what they could build (or rebuild) on the property under subsequently enacted Shoreline Master Programs (SMPs).
The proposal may not fully address the underlying concerns regarding restrictions on future use, renovation, or rebuilding. More important, dependent upon interpretation, the proposed bill includes language that could INCREASE restrictions on shoreline property and REDUCE the flexibility afforded local governments in developing regulatory approaches to protecting environmental functions and values. Let us explain.
HOW SSB 5451 AS PRESENTLY DRAFTED COULD BE INTERPRETED AS INCREASING RESTRICTIONS ON SHORELINE PROPERTY
Current state law allows the owner of an existing structure located within a buffer or setback to rebuild the structure if it is partially destroyed regardless of the then-applicable buffer or setback SMP rules. Specifically, WAC 173-27-080 allows a damaged nonconforming structure to be “reconstructed to those configurations existing immediately prior to the time the development was damaged.”
As we read the proposed legislation, however, rebuilding such structures would be subjected to any intervening SMP changes. WAC 173-27-080 is only a regulation. Thus, it appears that it could be found inconsistent with, and thereby rendered invalid by, the proposed statutory change.
The existing WAC provision allows replacement of a structure even if the structure is inconsistent with a subsequently adopted SMP applicable at the time of the replacement. (1) This result could be prohibited by subsection (2) of the proposed new statutory language in SSB 5451, which states unambiguously that:
Redevelopment, expansion, change within the class of occupancy, or replacement of the structure must be consistent with the master program including no net loss of shoreline ecological functions.
Accordingly, unless a jurisdiction has enacted rules making special provision for rebuilding structures falling within later-adopted buffers or setbacks—which used to be accomplished through nonconforming use provisions—there would be nothing allowing replacement of such structures and they would have to be abandoned or moved out of the buffer or setback.
It appears that while a local jurisdiction could still seek to provide for the reconstruction of heretofore “nonconforming” structures that are damaged (and perhaps for potential enlargement, expansion, conditional uses, etc.) if the proposed bill were enacted in its present form, the jurisdiction would have to do so as part of its SMP which must obtain the approval of the Department of Ecology (DOE).
If WAC 173-27-080 is deemed invalid as a result of the proposed legislation, there would be nothing (short of constitutional challenge litigation) to prevent the DOE from pursuing its long-stated objective of eliminating all nonconforming shoreline structures (by whatever name) by refusing to approve a local jurisdiction’s adopted SMP rules for such situations. Currently, the DOE’s discretion in the approval of SMPs is constrained by its regulations, including WAC 173-27-080, and DOE must approve SMP provisions consistent with the default regulations.
REDUCED FLEXIBILITY FOR LOCAL GOVERNMENTS UNDER SMA
It further appears that the language “including no net loss of shoreline ecological functions” in the proposed statutory provision may be interpreted to require the application of the “no net loss concept” strictly on a parcel-by-parcel basis, thereby eliminating flexibility for local governments to develop approaches to protecting environmental functions and values while promoting preferred shoreline uses, redevelopment of the built environment and the other important values of the SMA.
Requiring no net loss on a parcel-by-parcel basis would preclude potentially advantageous approaches to assuring “no net loss” on a watershed or jurisdiction-wide basis. We believe that this flexibility may be essential if local governments are to successfully balance the requirements of the SMA in practice, while addressing local conditions as contemplated by the SMA.
If, as we believe, unintended consequences will result from enactment of SSB 5451 in its current form, then additional language is required to address them. We are currently seeking to clarify these potential unforeseen consequences with Senator Ranker.
The concerns raised above with respect to the legislation’s increased restrictions upon shoreline property owners can be allayed by the inclusion of language along the following lines:
(4) Nothing in this section shall be construed to limit the authority of a jurisdiction to include locally-determined provisions in its SMP governing the application of, or exemption from, certain provisions of the SMP to structures described in subsection (1)(a) of this section, and the DOE shall not deny approval of an SMP based on such local provisions adopted pursuant to this section.
(5) Nothing in this section shall be construed to require the application of the “no net loss” concept in [statutory citations] on a parcel-by-parcel basis if the jurisdiction has adopted provisions that address no net loss of ecological functions and values on a jurisdiction-wide or watershed-wide basis, or if the jurisdiction otherwise satisfies the DOE that its SMP is consistent with the applicable “no net loss” requirements.
— The Common Sense Alliance (firstname.lastname@example.org) is a grassroots Section 501(c)(3) organization formed by citizens of San Juan County in 2009 to inform the community about the County's proposed land use regulations affecting wetlands, streams, lakes, ponds, and shorelines.