Washington state has about 28,000 miles of shoreline, all of which are heavily regulated under several state and local laws. One such law, the state’s Shoreline Management Act (SMA), directs coastal cities and counties to adopt and regularly update their Shoreline Master Programs (SMPs) to regulate new development within 200 feet of the ordinary high water mark in order to protect natural and cultural resources.
Located directly across Puget Sound from Seattle, the City of Bainbridge Island is a residential suburb. Despite the fact that its shorelines have been fully developed for decades, in 2014 the city updated its SMP to require that any “human activity” with the potential of disturbing vegetation within the shoreline be approved by the government and be subject to numerous highly contentious conditions, including requirements that the owner (1) consent to warrantless searches of their land, (2) secure city approval before designing a landscape or garden, and (3) execute a conservation easement of sufficient size to “enhance” and “restore” the marine shoreline. The city then declared it to be a crime punishable by jail time and hefty fines for anyone to engage in such “human activities” on their own property without prior government approval.
Concerned that this new law would deprive all shoreline residents of their property and privacy rights, a group of Bainbridge Island residents formed Preserve Responsible Shoreline Management (PRSM) to fight this bold incursion into assault on individual rights.
The city claims that it has the right to strip shoreline residents of their rights under a recent appellate court decision holding that Washington’s legislature, in enacting the SMA, explicitly rendered property rights “secondary” to the public’s interest in the environment. That decision is wrong. The Constitution cannot be thrown away, whether by an act of legislation or a court decision. It is the fundamental law of the land.
PLF represents PRSM in a lawsuit that challenges the constitutionality of Bainbridge Island’s SMP. Specifically, the lawsuit claims that Bainbridge Island’s demand that residents secure government approval before engaging in any “human activity” near the shoreline is too vague and onerous to be consistent with due process. The city’s demand that owners consent to warrantless searches of their property similarly violates their rights. Moreover, the city’s demand that owners give the public an easement on their land in order to secure a permit approval is not supported by the scientific record and takes more than is necessary to mitigate any negative impacts caused by development.
The case is currently pending on appeal of a trial court decision that would bar PRSM from putting on evidence showing that the city’s demands will cause constitutional injuries. If the trial court’s order is allowed to stand, it would limit all arguments to facts contained in the government’s record. PRSM’s appeal argues that the Due Process Clause of the U.S. Constitution requires courts to allow a party to put on its own evidence—an argument that is supported by numerous U.S. Supreme Court decisions.
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