|| November 17, 2009
|| Patty Charnas, Environmental Programs Division
Kitsap County Department of Community Development
|| Kitsap 1, 360-337-4558
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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