County to Appeal Critical Areas Decision to
State Supereme Court

(Port Orchard, WA) – Kitsap County has filed a petition to the State Supreme Court to review a September 9, 2009 Court of Appeals decision regarding the application of the County’s critical areas ordinance in the shoreline. In that decision, the Court of Appeals ruled that the Kitsap County must use its Shoreline Management Program, adopted under the state Shoreline Management Act (SMA), to regulate critical areas within 200 feet of shorelines according to the Shoreline Management Program and not use the Critical Areas Ordinance, adopted under the state Growth Management Act (GMA). Noting ambiguity and other issues with in the decision, the Kitsap Board of County Commissioners filed a motion for reconsideration on September 29, 2009. On October 15, the Court of Appeals denied the motion for reconsideration. After further analysis, the Commissioners approved the filing of an appeal to the State Supreme Court. The Supreme Court may accept or reject the petition for review. .

The Court of Appeals decision was the first to be handed down after the recent Supreme Court decision in Futurewise v. Western Washington Growth Management Board. Although the Court of Appeals relied on Futurewise, it acknowledged that no opinion in Futurewise garnered a majority vote and that a split among the justices leaves the issue of critical area regulation by the SMA or the GMA unclear. This acknowledgement was among the principal factors cited by the County Commissioners in agreeing to pursue a review by the Supreme Court.

“As I stated earlier,” noted Charlotte Garrido, Chair of the Board, “the split decision by the Supreme Court created enough confusion to, in our opinion, warrant another review. It is our hope that the State’s highest court will provide clearer direction.

The effect of the filing delays the issuance of the mandate from the Court of Appeals, which has not yet been issued. The issuance of a mandate is necessary before the Court of Appeals’ decision can become effective. Meanwhile, the County’s Department of Community Development will continue to process permits using current Critical Areas Ordinance provisions.


For more information on contact Patty Charnas at 360.337.4558

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To contact the Public Communications Manager, 
call Doug Bear at 360-337-4598 or email: dbear@co.kitsap.wa.us