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More SMP Update Comment:
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From: jim hagen Dchagen@donobLnet]
Sent: Thursday, January 29,20098:07 PM
To: #Long-Range Planning; Michelle McConnell
Subject: Fw: More SMP Update Comment
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More SMP Update Comment:
ARTICLE 1:
1.5. This draft does not achieve the policies of RCW 90.58.020. It does not
recognize the intention of the SMA to strike a balance among private
ownership, public access, and public protection of the state's shorelines. While
acknowledging the condition of Jefferson County's shorelines remains good, a
225 page draft update has been prepared that that is heavily tilted toward
protection of ecological processes. This proposal in effect turns three quarters
of the shoreline jurisdiction into a buffer zone, hardly the intent of the SMA.
(The shoreline includes many streams and creeks. Please clarify which
streams in Table 1-1 of the Shoreline Inventory and Characterization Report
are shorelines. This table is five pages long and most have a yes in the
qualifying 20cfs column). Invention of a new shoreline designation, Priority
Aquatic, increasing the Natural designation to 41 %, placing outright
prohibitions or strict conditions on uses recognized as preferred by the Act,
rendering most shoreline parcels non-conforming, inappropriately applying
CAO performance standards contrary to a State Supreme Court decision, and
150' buffers without a corresponding demonstration of the degree of
development impacts are a few examples of an apparent bias against clear
priority status for single-family residences.
Predictability in land-use is a finding our County Commissioners often use for
evaluating Comprehensive Plan amendments relative to changes in use and
density. Increasing shoreline buffers by a factor of five can hardly be
described as the kind of predictability envisioned by our elected leaders.
Already shoreline owners applying for development permits have been
astounded to learn what they thought were 30' setbacks have been changed to
160.' The County has also been remiss in directly notifying all shoreline
owners of the exact changes in regulations and their consequences. It is also
the duty of County staff to inform shoreline owners of their options, including
filing a SP AAD to preserve their existing expectations. The Department of
Community Development and DOE work to serve the people and fairly
administer the laws of the state. There is a reason government bureaucrats
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are called civil servants. There is a reason candidates running for County
Commissioner offer the promise, "As your Commissioner, I know I work for
you." A great deal of attention has been paid in this draft to ensure ecological
processes are being protected. The fact that a similar emphasis has not been
placed on the interests of people to use the shoreline in an equally balanced
manner allowed by law displays the inequity of this draft SMP.
Another small point illustrates the over-zealousness to impose draconian
measures upon landowners who are doing nothing wrong. In a memorandum
from DOE in consultation with the County on the content of the working
draft, Rick Mraz advised that a 5' setback, added to a 150' buffer, is not very
practical and "should be at least 10' for purposes of maintenance and repair
access." Are you kidding?!
1.6. The section titled "Critical Areas Regulations Adopted By Reference" either
ignores the Anacortes v, Futurewise decision or is gambling it will be reversed
upon reconsideration. To date the County has apparently shown enough
deference to the findings of Anacortes that it has reverted back to existing
SMP regulations. In any case, the County might consider a more prudent
approach shared by other jurisdictions in taking a wait-and-see attitude, and
leave this section - along with the Standard Buffers and Setback Regulations
in Article 6, open ended until the case is clarified. Another undetermined
consequence of incorporating the CAO into the SMP is whether it will become
subject to the appeal process as it hasn't been previously approved by
Ecology.
1.8 Liberal Construction: The County's interpretation of the
meaning of liberal construction exceeds that contained in RCW 90.58.900,
which states in full, "This chapter is exempt from the rule of strict
construction, and it shall be liberally construed to give full effect to the
objectives and purposes for which it was enacted." The County ought to adopt
into its own program that which the legislature intended and nothing more.
Arbitrary phrases like "deemed purpose" are too discretionary.
ARTICLE 2:
Q.R. The definition of Residential development should be expanded or
a new one created, to clarify what is meant in Article 4.2.5 criteria
describing "high density RR 1:5," or accomplish this in 4.2.5.
What does that mean? It is highly subjective. WAC 173-26-211
describes Shoreline Residential designation criteria for UGA,
Master Planned Resorts, unincorporated municipalities, and rural
areas of more intense development, which I assume is what the
County means by high density RR 1:5. The draft ought to
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distinguish between high-density, which has an urban connation,
and RAMIDS which allow more intense development relative to
rural standards. The entirety of the Shoreline Residential
designation likely varies in density. I suggest the designation be
changed to the more appropriate "rural areas of more intense
development" standard from which their shoreline designation
can be evaluated or challenged if there is disagreement.
ARTICLE 4:
1.B. Whose responsibility is it to determine the site-specific, case-by-case
circumstances and evaluation of shoreline designations? Is it the applicant's,
consistent with Article 10.8 (Burden ofProot)? Is there a mechanism here or in
4.1.E where a landowner can challenge or request a change in designation? It seems
it should be the County's duty to justify the significant changes in shoreline
designations contained in the draft. (planning maps are acknowledged to be
imprecise). The County often argues it doesn't have the money or resources to do
this, but what makes anybody think the applicant can afford it? If the burden is
placed on the applicant, this is in effect a planning tax.
2.C. On what basis does the County invent a new shoreline designation called
Priority Aquatic? How is this consistent with 2.B.5? I understand the county is given
some local latitude, and consolidating urban and rural conservancy is a good
example. But I think establishing "Priority Aquatic" under the guise of alternative
systems in 173-260211 is a stretch. Is there any consideration that our lack of any
urban land is a reflection of our overall development intensities? What other
shoreline designations or other regulatory schemes wouldn't provide similar
protection relative to need? It seems a few people have created among themselves
criteria for shoreline use that impose a number of prohibitions and conditions to be
placed on preferred uses allowed by 90.58.020, affecting many. How can the County
justify this when there is no existing criteria in the WAC with which to base such
restrictions upon? How do landowners challenge a designation the County made
up?
2.2.2. The increase in the Natural designation to 41 % of the shoreline is excessive in
relation to existing development patterns. Designation criteria include a number of
vague qualifiers such as "mostly ecologically intact." The criteria assigning a
natural designation to those areas "currently performing an important or
irreplaceable function or process that would be damaged by human activity" is
contradicted by another that specifies "the shoreline is unable to support new
development or uses with significant adverse impacts to ecological functions or
processes." The key phrase is significant adverse impacts. It doesn't mean any
damage or adverse impacts; it means sign~ficant impacts, fulfilling the intent of
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90.58.020. (There are numerous times throughout the draft where the county
standard is simply any adverse impact when the law specifies qualifiers like
significant, substantial, insofar as practical, etc.). The Natural designation does not
outright prohibit or severely condition certain uses as implemented in the draft use
table.
2.4. Conservancy: A number of preferred uses are required to undergo a
conditional-use permit process when normal performance standards adequately
address impacts.
2.5. Shoreline Residential: Single-family residential use in the Natural designation
ought to be allowed without a conditional use permit as long as it follows the
provisions of this program. Accessory structures in the Conservancy and Shoreline
Residential are a preferred use under 90.58.020 and shouldn't need a conditional
use permit.
ARTICLE 6:
6.1.A.1. This policy is so open-ended and subject to interpretation that just about
any development or alteration could be denied.
6.1.A.2. The word "significant" should be added to adverse impacts.
6.1.B. Regulations - No Net Loss and Mitigation. First, this sounds more like a
policy than a regulation, a common tendency. The Final Shoreline Inventory and
Characterization Report states in 1.2 that it "provides a general inventory
description of existing conditions..." I question whether this is sufficient to base an
accurate baseline upon from which to measure the no net loss goal. As I understand
it, no net loss is measured not just on a site-specific basis but also on a watershed
scale. I have heard common complaints even from staunch environmentalists about
the lack of an accurate inventory of real on-the-ground existing functions and values
of ecological processes to use in monitoring and benchmark goals. How do we
achieve no net loss without a starting point? This puts the landowner in the position
of being strictly held to a vague standard. WAC 173-26-201 (2)(b) states, "Local
governments should monitor actions taken to implement the master program and
shoreline conditions to facilitate appropriate updates of master program provisions
to improve shoreline management over time." There do not appear to be any solid
monitoring provisions in this draft.
6.1.B.2. This is again written much more like a policy than a regulation. A
regulation should describe specific measures required to ensure compliance with the
purpose of the code. What is the measuring stick for determining if a net loss will
occur? Is the landowner required to submit detailed site evaluation studies prior to
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and after development? Are the impacts of a particular development measured
against any other off-site restoration activities that when combined equal no net loss
on a watershed scale?
6.1.B.3. Add "significant" to adverse impacts.
6.1.C.2.,3. Regulations - Cumulative Impacts. These regulations appear to place the
burden on the applicant to assess impacts such as "human factors influencing
natural shoreline processes" when the county hasn't even done so to any meaningful
degree. According to WAC 173-26-201, local governments are required to inventory
not only ecological features of the shoreline but also "the extent of existing
structures, impervious surfaces, vegetation, and shoreline modifications." It is
crucial to know with some detail the extent of existing structures and potential for
future growth when evaluating cumulative impacts. The no net loss formula is
comprised of two elements; existing condition of ecological processes and the degree
of and human alteration. We only have a general inventory of the shoreline ecology
and very superficial descriptions of land use characteristics. Without this
information it is impossible to determine whether no net loss is being achieved or
how future development will cumulatively impact shorelines. It is on this incomplete
data the County has imposed 150' buffers when the existing condition of the
shoreline has been described as good. Justification for a five-fold increase in buffers
is based on mitigating the threat of future cumulative impacts, yet this draft lacks
the baseline data necessary for monitoring no net loss. We deserve reliable data to
base protective buffers on.
6.1.D. Regulations - Critical Areas and Shoreline Buffers: Using buffer standards
established JCC. Chapter 18.22 is inconsistent with both RCW. 36.70A.480 and the
Futurewise v. Anacortes decision, which clearly state critical areas in shorelines shall
be governed under the SMA. The protection-at-Ieast-equal-to-the-CAO provision in
36.70A480(4) doesn't mean identical standards or buffer widths have to be used,
just equal protection. The SMA and GMA have differing jurisdictions and scientific
standards. The Central Puget Sound Growth Management Hearings Board, in
Tulalip Tribes v. City of Snohomish, may have shed some light when it explained that
"While local governments have the discretion to adopt development regulations (for
critical areas ordinances )that may result in localized impacts upon, or ev~n the loss of,
some critical areas, such flexibility must be wielded sparingly and carefully for good
cause, and in no case result in a net loss of the value andfunctions of such ecosystems
within the watershed or other functional catchment area." This could reasonably
indicate that the protection threshold for both SMA and GMA ultimately is no net
loss. As a layperson it is difficult to comprehend the legislature would separate the
GMA and SMA only to allow them to become intertwined again through critical
area standards. The requirement by the SMP to attain a level of protection at least
equal to the CAO could simply mean to ensure no net loss, which this update does.
This would involve revisiting 6.1.D and writing critical area and buffer standards
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that apply strictly to SMA jurisdiction
Regarding 36.70A.480(6), SMPs can include land necessary for buffers without
converting at least 75%ofthe shoreline jurisdiction into a buffer zone. There is no
proven correlation between a particular buffer width and protection, and the
amount of land available for siting comprehensive land uses under GMA is much
greater than the SMA, where a variety of water-dependent uses are contained
within a 200-foot wide area. It is hard to believe 90.58.020 or WAC 173-26-201(2)(d)
intended for buffers taking up that high a percentage of the shoreline. What will
happen in 5-10 years when new science determines 200 or 300 ft. buffers are
needed? Where's the line?
I'm curious why 150' buffers, based on JCC Chapter 18.22, have been applied to the
entire shoreline when not all shorelines have been identified as critical areas per
process of RCW 36.70A.480(5).
At the 1-21-09 Planning Commission Public Hearing it was asked where the science
came from to justify the 150' buffers, and could that information be presented to the
public. The scientific citations listed in the Shoreline Inventory Report are the same
one-dimensional perspectives presented during the CAO update, and "as biased and
goals-oriented as would an environmentalist consider science on grazing that came
from the Cattlemen's Association (Draft Wetlands in Washington State Volume 2:
Response to Comments). Just as the SMA mandates a balance of objectives, so
should the science reflect a range of theory on what achieves the no net loss
standard. Dr. Kenn Brooks and Dr. Don Flora are just a couple of local examples
representing a divergence from fIXation on generic, fixed-width buffers that are
continually expanding outward, at great cost and little success. RCW 90.58.100(1)(a)
dictates a "systematic interdisciplinary approach which will ensure the integrated
use of the natural and social sciences and the environmental design arts." Lack of
emphasis on the social sciences is a primary factor contributing to the
contentiousness of ecology-based land use regulation and its failure..Right here in
our own back yard we have a demonstrated strategy that has gained landowner
acceptance while achieving real results in not just maintaining but improving water
quality and habitat; the best management practices for agriculture that employ
much smaller, smarter buffers. There is no reason why the same can't apply to low-
density single-family housing and other low-intensity uses characteristic of
Jefferson's development patterns.
6.1.D(II). Critical Area Stewardship Plans: Resist DOE advice to require a variance
for CASPs. Why would an approach that is held accountable by monitoring and
benchmarks be subjected to more scrutiny than fixed-width buffers of unknown
quality?
6.1.E. Regulations - Exceptions to Critical Area and Shoreline Buffer Standards:
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This section should be reviewed as carefully as any in the draft, as it has perhaps the
largest consequence for future permit applications. The first thing we need to know
is how many lots are affected? This needs to be taken into account when evaluating
the balance of the SMA. These lots contain single-family housing sites that are not
an exception to the preferred use of the shoreline under 90.58.020. They are owned
with all expectation of reasonable and predictable use. The condition that "there is
no opportunity to consolidate lots under common ownership that will alleviate the'
nonconformity," without a direct negative relationship between cause and effect, is a
form of passive theft. DOE expresses concerns "that development with this degree of
pre-approval on a large number of lots may significantly impair ecological functions
in those areas," but supplies no substantive data relative to Jefferson's rural
conditions and zoning restrictions - and no baseline of existing functions and
impacts - to impose such draconian measures as they propose in their 12-3-08
Memorandum to the County. As to a solution of the nonconforming lots issue, the
Attorney General's Office advise that "counties will not be able to avoid a sensitive,
particularized analysis of their individual situations, leading to development of
standards that make sense for a particular county, " is prudent, and extra time taken
now could avoid huge controversy.
6.4. Vegetation Conservation: It is unclear in the policies and regulations of this
section whether this applies to the buffers or the entire building site/parcel. 6.4.B.2,
for example, states "Proponents of all new shoreline uses or developments shall
demonstrate that site designs and layouts are consistent with the policies of this
section." Is this regulating vegetation inside or outside the buffer, or both? Policy
6.4.A.6. reads more like a regulation - with a wide range of discretionary latitude -
while Regulation 6.4.B.5. reads more like a policy.
ARTICLE 7:
Submitted comments by others reflect my views on this section.
ARTICLE 8:
Most comments relative to this section have either already been made or have been
submitted by others. In general, this important section seems lost this late in the
document, and is a drawback of such a lengthy SMP. In that sense it is not user-
friendly, in my opinion.
One particular regulation that encapsulates my overall sense that this is not a
balanced SMP is contained in 8.8.C.1., where "Residential use shall be planned,
designed, located, and operated to avoid adverse impacts on shoreline processes..."
WAC 173-26-201(2)(d)(iv) simply states, "Locate single-family residential uses where
they are appropriate and can be developed without significant impact to ecological
functions or displacement of water-dependent uses" (emphasis added). It is the
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continual omission of the word "significant" that lowers the bar for inviting
administrative review and demotes preferred uses to conditional oversight where
none is warranted under the SMA.
ARTICLE 10:
10.6.B. Non-conforming Development: There is nothing in JCC Chapter 18.20.260
or WAC 173-27-080 which discourages in-kind replacement of non-conforming
structures totally damaged by fire, etc. Only in extreme cases where the extent of
the catastrophe compromises the stability of the land should a totally damaged non-
conforming home be subject to compliance with this program. The clause "shall be
able to redevelop in kind if there is no ability to redevelop in a manner that conforms
with this Program" shouldn't be necessary.
10.6.F: The assurance that existing uses are largely unaffected by the SMP update
is both misleading and of little relief. These new regulations effectively turn the
entire shoreline into a non-conforming use, especially when combined with the fact
many of the lots themselves are nonconforming. The dramatic increase in critical
area buffers will further complicate the review process, making it more costly for
both the County and the applicant, and in some cases may jeopardize approval for
expansions or re-models. Jefferson County holds future predictability and fair
expectation of land use as a foundational planning principle. It is also, I believe,
contrary to our community values to feel secure in what we have while others may
be denied the same opportunity, rights and privileges.
ARTICLE 10.8. Burden of Proof: As already noted, the County is placing the
burden of proof on the applicant to demonstrate any proposed development is
consistent with this SMP without conducting the due diligence that accurately
determines the standard - no net loss - by which compliance is measured.
Jim Hagen
150 Maple Dr.
Port Townsend, W A.
2/2/2009