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Jeanie Orr
From: Jeanie Orr
Sent: Wednesday, June 17, 2009 12:05 PM
To: Michelle McConnell
Cc: AI Scalf; Stacie Hoskins; Jeanie Orr
Subject: FW: Comments on DSMP
From: landcrab [mailto:landcrab@olypen.com]
Sent: Wednesday, June 17, 2009 10:15 AM
To: #Long-Range Planning
Subject: Comments on DSMP
Dale S. Wilde
419 N. Bayview Dr.
Port Ludlow, W A 98365
June 17,2009
Jefferson County Planning Commission
Via email and also hand delivered at the Public Hearing on June 17, 2009
Re: Public comment on Draft Shoreline Master Program (DSMP)
My wife, four children and I are owners of both developed and undeveloped rural
residential shoreline properties in Jefferson County, W A, and are thus directly impacted
by the proposed new Shoreline Master Program.
We appreciate the time, efforts and diligence of the Planning Commission in reviewing
and amending the DSMP. However, we believe there are numerous deficiencies and
conflicts in the proposed DSMP dated June 3, 2009.
1) Shoreline property owners directly affected by this program were underrepresented on
the Planning Commission and other bodies responsible for establishing the rules and
regulations contained in the Revised Draft Shoreline Master Program document. Also, it
appears that there should have been more coordination relating to legal interpretation of
conflicts with state and federal rules and regulations and plans and those promulgated in
the DSMP; e.g., there is no statement or provision in the DSMP relating to previously
contracted obligations, such as local community CC&R's, Department ofFish and
Wildlife habitat (eagle management, etc.) plans, which may be more or less restrictive
than the rules and regulations in the proposed DSMP.
6/17/2009
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2. The inspections under Article 10, No. 24, "Inspections," appear to be in conflict with
state and federal laws relating to trespass and/or unwarranted search, as it appears your
regulations allow the Administrator to enter buildings or premises in areas not directly
affected by the Shoreline Program without appropriate owner approval or duly issued
warrant. There's no way that the Administrator has any right to enter my home,
outbuilding or driveway without my specific consent or a validly issued warrant. This
could be extremely abusive for non-owner-occupied properties or when the owner may
be absent from his properties for an extended period of time (all the snow birds in the
county) and potentially subject the Administrator or his designees to suspicion or
accusations of theft or damage to the property, and/or prosecutions for trespassing
violations.
3. The regulations requiring permits, reviews, approvals, etc., from various local and/or
state authorities have no performance time limits within which the local or state authority
must respond to a valid application nor any penalties for failure to do so. Without a
specific time limit, e.g., 30 days, or a penalty for nonresponse, e.g., the application
approved as submitted or waiver of all permit fees, there is no means for the applicant to
ensure that his request will be responded to in a timely manner. This could result in a
severe financial hardship on the part of the applicant, as timing could delay or even
cancel a project due to financing and/or other time-related expenses. Fees for the
required letter from the County (Administrator) certifying the property is exempt should
be minimal or nonexistent.
4. The one-size-fits-all buffer and setback restrictions in the DSMP do not take into
account the best available science on a site-specific basis. It would be more appropriate
if the buffers were established in a range of, say, minimum 30 feet and maximum 150
feet with recommendations for the various classifications ranging from, say, 50 feet for
rural residential to 100 feet for conservancy with the recommended buffers being
automatically in compliance with the DSMP and thus requiring no site-specific studies
and reviews. Requests for buffer and setback reductions to the minimum should require a
site-specific determination pursuant to reasonable and common sense application of
shoreline impacts; e.g., gently sloping uplands with solid basalt beaches would result in
very minimal buffers to provide the protections contemplated under the DSMP. (A note
on the various requirements in the DSMP for vegetative buffers: I presume that basalt
boulder beaches and uplands that have not been vegetated for over 1000 years need not
be vegetated as that would entail bringing in soils and plants, which could have adverse
impacts on the shoreline and natural ecological functions.)
5. The exemption amounts for fair market value projects of$5,718 for any development
conflicts with the $2,500 limit for saltwater docks and the $10,000 limit for freshwater
docks in Section 9. Additionally, it would appear that these values are extremely low and
should be consistent for all listed exemptions. The fair market value definition for listed
exemptions should specifically exclude the costs of permits and inspections, reports,
approvals, etc., required under the permit process, as without this exclusion the
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permitting authority could simply raise fees and costs above the stated dollar limits. As
an encouragement for shoreline property owner involvement in the oversight of listed
exemptions, it would appear appropriate that the fair market value definition include only
third-party costs for labor and materials and exclude owner participation (sweat equity)
and materials derived from the premises, which would obviously be more natural and
site-specific than those acquired from the retail market.
6. A statement relating to subjective, undefined terms, such as "aesthetic," "scenic,"
"vista," "cultural" (whose culture is this referring to? and whose culture prevails when
conflict exists?), etc., should be included in a preamble to the definitions list or in the
"Note to reviewers" under "Article 2 - Definitions" that these terms should be construed
broadly, taking into account the various personal and cultural tastes of both the
community and the applicant and shall not be narrowly construed by the regulators based
on their personal views or biases. Requiring the Department of Community Development
to have an aesthtic, scenic and cultural compliance department would be prohibitively
costly and prone to abuse. At a minimum, the members of this department should be
elected to ensure that the community agrees with their artistic interpretations of these
terms.
7. Regulations and definitions relating to Ordinary High Water Mark (OHWM) appear
to be conflicting with "on a site-specific basis Department of Ecology has final authority
on determing where the OHWM is located," and may be overly restrictive that only the
Department of Ecology can make the determination, as there are obviously other
professional, scientific and federal authorities competent to establish a high water mark.
If the Department of Ecology is the only one to establish this mark, how would a request
be handled, what fees would be involved, and there seems to be no mandatory
requirement or time limit for responding to a request. In establishing buffers, it would
appear that a little common sense would be appropriate, and that as most shoreline
property surveys indicate a top of bank, that any application should be able to rely on the
fact that the top of the bank is beyond the ordinary high water mark.
8. The Administrator has God-like authority to interpret and administer this DSMP. The
exemption requirements that the burden of proof that a development or use is exempt lies
strictly with the applicant, coupled with the third-party review requirements that the
Administrator shall determine when a third-party review shall be required, that it must be
paid for by the proponent but "hired" by the Administrator, among other powers,
including but not limited to the exemption letter requirement, could place the
Administrator or his designated representative in a positiion to have an extreme conflict
of interest resulting in fraud or abuse or bias in requiring and personally selecting third
parties to provide technical studies, scientific reports, inventories, etc., and place an
extreme burden upon local staff to become expert in determining such things as costs
associated with fair market value decisions, vegetation, native versus nonnative
vegetation determinations, in addition to the cultural, aethetic, etc., as noted above.
6/17/2009
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9. A definition of "prohibited use" as any use or activity which is specfically not allowed
by this program, conflicts with numerous regulations in the proposed draft program,
including but not limited to the statement in Article 1, No.8, Literal Construction, "This
program is exempt from the rule of strict construction. Therefore this program shall be
liberally construed to give full effect to its goals, policies," etc.
10. Finally, there is no economic impact study relating to the effects of this proposed
DSMP on the property owners and the taxpayers of Jefferson County and the State of
Washington. The requirements in this DSMP imposed upon Jefferson County are
numerous and potentially very costly and not adequately spelled out. One only has to
look at Article 5, No. IB, requirements "In managing shorelines of statewide
significance, Jefferson County SHALL..." coupled with the numerous rules, regulations,
requirements, studies, determinations, database maintenance, mapping, permit and
authorization implementation, site visits, etc., contemplated by this DSMP, to realize that
the lack of an adequate cost/benefit analysis relating to the implementation of this DSMP
would be an extreme disservice to the property owners, taxpayers and those in charge of
budgeting for the county staff requirements to implement and monitor the proposed
regulations, as well as to address the very real probability of defending appeals and
litigation, which ultimately the Jefferson County taxpayers are on the hook for.
It appears that there may be more Department of Community Development staff required
to administer this DSMP than there are rural shoreline property owners, and thus the rural
shoreline property owner should be classified as an endangered and therefore protected
speCIes.
Due to the volume of the DSMP, it is very difficult to adequately review and comment on
perceived problems and/or deficiencies, especially considering the relatively short time
frame from the revised DSMP issuance date of June 3, 2009, to the cutoff date for
comments of June 17, 2009. The above may be lengthy but is certainly not all-inclusive
of the potential conflicts and deficiencies.
Thank you very much for accepting and considering our comments.
Yours truly,
Dale S. Wilde
6/17/2009