Presented by Brent Carson

1. 2010 APA Washington Conference From a Lawyer’s Viewpoint: Shoreline Program Updates Shoreline Setbacks October 5, 1010 Presented by Brent Carson

2. Issues in Shoreline Setbacks • Are Setbacks Required? • What Setback is Needed to Meet No Let Loss? • Are Setbacks Consistent with Preferred Uses? • Are the Same Setbacks Needed for New and Existing Development? • Can Setbacks Cause a Regulatory Taking? • Do Setbacks Create Too Much Nonconformity?

3. Are Setbacks Required? • SMA Chapter 90.58 RCW – Nothing Explicit but • RCW 90.58.020 – General finding to protect against adverse effects to wildlife, waters of the state and aquatic life. • SMP Guidelines Chapter 173-26 WAC • WAC 173-26-211(a)(iv)(B) – Setbacks “shall” be addressed “when necessary” to account for different shoreline conditions in each environment designation. • WAC 173-26-211(5)(ii) – In the Residential Environment, standards for setbacks “shall be set to assure no net loss of shoreline ecological functions…” • WAC 173-26-241(3)(j) For residential development, regulations that assure no net loss of ecologic function “should include specific regulations for setbacks and buffer areas.

4. “No Net Loss of Ecologic Function” • Phrase is Not Defined in SMA or Guidelines • Phrase used in other contexts to mean losses must be balanced by gains • SMP Handbook Chapter 4 Provides Guidance: • “No Net Loss” Incorporates the following Concepts: • Existing Conditions Should Not Deteriorate • New Adverse Impacts Avoided and Minimized by Mitigation Sequencing • Restoration is also Needed

5. “No Net Loss of Ecologic Function” • SMP Handbook Chapter 4 Provides Suggested Practices to Meet No Net Loss: • Identify best areas for development and mitigation • Require vegetated buffers and building setbacks from those buffers • Develop Policies and Requirements for Restoration • Recommend Actions Outside Shoreline Jurisdiction • Require Mitigation Sequencing

6. Setbacks for “No Net Loss” in an Urban Setting

7. Setbacks for “No Net Loss” in an Urban Setting

8. Problems Applying GMA Buffer Science to Urban Shoreline Setbacks • Nearly all scientific literature address buffer functions and widths necessary to provide fully functioning natural pathways on freshwater streams in forested areas • Many ecological functions of buffers in forested stream condition are irrelevant in urbanized setting on Puget Sound and large urban lakes • Temperature Pollutant Removal • Erosion control Wildlife habitat • Bank protection Nutrient input • LWD recruitment

9. Regulatory Takings • Government action that limits the use of property in such a way as to: • destroy a fundamental attribute of ownership, • deny all reasonable economic use of the property, or • make the property owner provide a public benefit rather than address impacts caused by proposed use.

10. Regulatory Takings • Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). Application for 55-story office building atop Grand Central Terminal denied due to its being an historic landmark. • Three relevant factors: • the character of the regulation; • the economic impact on the landowner; and • the extent of interference with investment-backed expectations.

11. Regulatory Takings • Burton v. Clark County, 91 Wn. App. 505 (1998), review denied, 137 Wn.2d 1015 (1999). Developer required to build a road across proposed subdivision that would eventually connect with a road to be built in the future on adjacent property was invalidated as a takings. • The county's requirement lacked "rough proportionality" to the nature and extent of the impact of the proposed development.

12. Regulatory Takings/Substantive Due Process • Presbytery of Seattle v. King County, 114 Wn.2d 320, cert. denied, 498 U.S. 911 (1990). Owner sought invalidation of wetland regulation as violation of substantive due process. • Three-pronged due process test: • whether the regulation is aimed at achieving a legitimate public purpose; • whether it uses means that are reasonably necessary to achieve that purpose; and • whether it is unduly oppressive on the landowner.

13. Regulatory Taking Issues with Setbacks • Does setback preclude all reasonable economic use for new development? • Does setback and nonconformity provisions preclude reconstruction of existing development destroyed by disaster? • Does setback have substantial nexus/rough proportionality to impacts caused from proposed development?

14. Legally Nonconforming Structures • General Concepts • Defined: A Development or Structure located or configured in away that was permitted when built but does not meet current standards • Statues, including SMA, do not address nonconformity* • Under Case law, nonconformity is disfavored and should be eliminated over time, but local governments are free to preserve, limit or terminate nonconformity subject to constitutional take provisions

15. Legally Nonconforming Structures • Practical Problems For Owners of Nonconforming Structures: • Repair, Remodeling, Alteration, and Expansions may be limited • Reconstruction after Disaster may be prohibited • Extended lack of use could terminate right to reoccupy • Refinancing • Reduced Property Values (for nonconforming property and other “comps”) • Requirement to Disclose to new buyers (Form 17) • Homeowners Insurance Coverage Limits • “Rebuild to Code” provision • “Loss Settlement” Provision

16. Legally Nonconforming Structures • Practical Solutions • Limit Creation of Nonconforming by setting reasonable setbacks • Create separate standards for existing structures and for undeveloped lots • Make Existing Structures Legal not Legally Nonconforming • Generous Expansion Provisions • Generous Rebuild after Destruction provisions • Remember – Standard is No Net Loss of Ecological Function

17. Brent Carson bcarson@GordonDerr.com