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Introduction to the Shoreline Management Act
Washingtons Shoreline Management Act was passed by the State Legislature in 1971 and adopted by voters in 1972. The overarching goal of the Act is "to prevent the inherent harm in an uncoordinated and piecemeal development of the state’s shorelines."
The Act applies to all 39 counties and more than 200 towns and cities that have "shorelines of the state" (RCW 90.58.030(2)) within their boundaries. These shorelines are defined as:
The Act also states that "the interests of all the people shall be paramount in the management of shorelines of statewide significance." These special shorelines are defined as:
There are three basic policy areas to the Act: shoreline use, environmental protection and public access. The Act emphasizes accommodation of appropriate uses that require a shoreline location, protection of shoreline environmental resources and protection of the public's right to access and use the shorelines (RCW 90.58.020).
The overarching policy is that “the public’s opportunity to enjoy the physical and aesthetic qualities of natural shorelines of the state shall be preserved to the greatest extent feasible consistent with the overall best interest of the state and the people generally. “Alterations of the natural conditions of the shorelines of the state, in those limited instances when authorized, shall be given priority for…development that will provide an opportunity for substantial numbers of people to enjoy the shorelines of the state.”
The Act also implements the common law Public Trust Doctrine. The essence of this court doctrine is that the waters of the state are a public resource for the purposes of navigation, conducting commerce, fishing, recreation and similar uses and that this trust is not invalidated by private ownership of the underlying land. The doctrine limits public and private use of tidelands and other shorelands to protect the public's right to use the waters of the state.
Under the Shoreline Management Act (SMA), each city and county with "shorelines of the state" must prepare and adopt a Shoreline Master Program (SMP) that is based on state laws and rules but is tailored to the specific geographic, economic and environmental needs of the community. The local SMP is essentially a shoreline-specific combined comprehensive plan, zoning ordinance, and development permit system. Most shoreline master programs were originally written between 1974 and 1978.
The SMA establishes a balance of authority and partnership between local and state government. Towns, cities and counties are the primary regulators. The state Department of Ecology acts primarily in a support and review capacity. Ecology provides technical assistance to local governments. Ecology also provides funding in the form of grants.
Ecology is also required to review certain kinds of permits (conditional use and variance permits) for compliance with the law, and must review local shoreline master programs to ensure they also comply.
Local governments may modify (amend) master programs to reflect changing local circumstances, new information, or improved shoreline management approaches. There are two types of amendments: limited amendments and comprehensive amendments. All changes to master programs require public notice. Comprehensive amendments require more extensive public involvement.
Master programs and any amendments are effective only after Ecology approval. In reviewing and approving master programs, Ecology is limited to a decision on whether or not the proposed changes are consistent with the policy and provisions of the SMA and the shoreline master program guidelines (WAC 173-26, Part III).
The most recent version of the guidelines was the result of the negotiated settlement agreement between the Department of Ecology and interested parties such as cities and counties, business associations, environmental organizations, and individuals. The final outcome was the 2003 version of the guidelines and legislation that required over 260 towns, cities, and counties to comprehensively amend (update) their shoreline master programs to avoid the environmental harm inherent in piecemeal and uncoordinated shoreline development. Most of these updates will be completed by 2014. State funding was also provided to assist local governments in fulfilling this requirement. SMP Guidelines Negotiated Settlement Agreement.
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The Constitution of the state and the U.S. Constitution provide both the authority for conducting the activities necessary to carry out the Shoreline Management Act and significant limitations on that authority.
The basic authority comes from the police power provision. This allows the state government and, by delegation from the state, local government, to adopt and enforce laws to protect the public health, safety and general welfare.
Limitations are set by state and federal constitutional "due process" and "takings" provisions:
"Due process" limitations: Government activities that constrain private options have to be conducted according to a set of rules that assures an opportunity for participation by the affected parties. The Shoreline Management Act and local shoreline master programs comply with this requirement by establishing extensive rules for public participation in the process of making rules (i.e. adopting and amending SMPs) and deciding on individual permits. In addition to establishing rules, adherence to the rules in the decision making process is fundamental to assuring that any decision will withstand legal challenge.
"Takings:" The constitution prohibits the government from taking private property without compensation. The meaning of this provision is perhaps the most debated issue in land use law. Its meaning is clear in cases of condemnation or other acquisition for public use; government must pay the fair market value. It is also reasonably clear from case law that most common forms of regulations that impose limitations on the use of property, do not require compensation, even where there may be a significant diminishment of property value, so long as the regulation is reasonably related to protection of legitimate public interests.
However, the courts have indicated that there is a point where use limitations on an individual piece of property require compensation. For example, the U.S. Supreme Court in Lucas v. South Carolina Coastal Commission determined that a regulation that had the effect of “eliminating all economic use” was a “taking” of that property. (Note: Also see Orion Corporation v. State of Washington, 109 Wn.2d 621, 747 P.2d 1062)
The Act addresses the takings issue by identifying the public purposes served by its implementation and by requiring appropriate flexibility in its implementation. Individual master programs also need to be drafted with the takings issue in mind and every permit decision must be made within a framework that factors in takings considerations.
More: Laws, Rules, and Cases
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