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HomeMy WebLinkAbout2961-639 G:JW~\ Page 1 of2 Jeanie Orr 2-(1 C? ( From: Jeanie Orr Sent: Wednesday, June 17, 2009 12:07 PM To: AI Scalf; Stacie Hoskins Cc: Jeanie Orr Subject: FW: PC Revised Draft available today Attachments: FW Itr JeffSMP013009draft3.pdf; FW Itr JeffSMP 061709.pdf From: Michelle McConnell Sent: Wednesday, June 17, 2009 12:00 PM To: Jeanie Orr Subject: FW: PC Revised Draft available today From: Dean Patterson [mailto:Dean@futurewise.org] Sent: Wednesday, June 17, 2009 10:55 AM To: Michelle McConnell Subject: RE: PC Revised Draft available today Michelle, Attached are the comments from Futurewise on the PC revised draft. They refer to our comments on the previous draft. Since those comments were not addressed, I am also attaching them. Dean Patterson - Shoreline Planner futurewise email: deal1@futurewise.org web: www.futurewise.org 814 Second Avenue, Suite 500 Seattle, WA 98104-1530 Direct Cell 509-823-5481/ HQ office 206-343-0681 / Fax 206-709-8218 From: Michelle McConnell [mailto:mmcconnell@co.jefferson.wa.us] Sent: Wednesday, June 03, 20099:21 AM To: Michelle McConnell Subject: SMP: PC Revised Draft available today Greetings All, Attached please find the document release memo for the Planning Commission Revised Draft SMP that is available today. The document is posted online at the PC Revised Draft webpage, with hard copies here at our DCD Front Desk, and County Libraries at Hadlock and Forks (mailed yesterday). Copies will also be distributed at tonight's Planning Commission workshop at Superior Court (6:30 pm) and CDs are available for $1.10, paid in advance here at our office. Comments are due by the close of the June 17 public hearing. No reply to this message is required/requested You have received this message as a member of the Jefferson County 6/17/2009 Page 2 of2 Shoreline Master Program (SMP) Interested Parties Email Distribution List. If you do not wish to receive further project notices, reply to this message with "UNSUBSCRIBE" as the subject and body text. Anyone who wants to be added to the list may send an email with "SUBSCRIBE" as the subject and body text. Please note: Recipient names and em ail addresses are not shown to keep that information private. <><><><><><><><><><><><><><><><><> Michelle McConnell, Associate Planner - LRP Lead Shoreline Master Program (SMP) Update Project Manager Direct: 360.379.4484 Web: www.co.jefferson.wa.us/commdevelopment/ShorelinePlanning.htm Jefferson County Department of Community Development Long Range Planning Division 621 Sheridan S1., Port Townsend, W A 98368 Front Desk: 360.379.4450 Fax: 360.379.4473 NEW OFFICE HOURS: 9 a - 4:30 p Monday - Thursday; Closed on Friday <><><><><><><><><><><><><><><><><> NOTE: All e-mail sent to this address wilt be received by the Jefferson County e-mail system and is subject to Public Disclosure under Chapter 42.56 RCW. 6/17/2009 fufure:wise '-1' ~.... Building communities ,. Protecting the land .x_,~ '" 'e"., "" 0 ",. January 30, 2009 Jefferson County Planning Commission c/o Michelle McConnell, Associate Planner Jefferson Co. Dept. of Community Development 621 Sheridan St. Port Townsend, WA 98368 Sent by em ail to:mmcconnell({j)co.iefferson.wa.us Re: Jefferson County Shoreline Master Program Update Dear Jefferson County Planning Commission, Thank you for the opportunity to comment on the proposed Jefferson County Shoreline Master Program. Dur mission at Futurewise is to promote healthy communities and cities while protecting working farms and forests and shorelines for this and future generations. Futurewise has members across Washington State, including many in Jefferson County. Futurewise strongly supports the draft Jefferson County Shoreline Master Program (SMP) update. We believe that, with our recommendations, the updated SMP will help in the recovery of Puget Sound while providing appropriate opportunities for development. We commend those who have worked hard to produce a quality product. We do have some recommendations to improve the Shoreline Master Program Update. Chain of Laws to Require Review in the General Provisions of Title 21A The foundation of an ordinance is its Applicability section. It determines what activity is subject to the ordinance. In the draft SMP, this is found in two places. The SMP references the CAD, JCC 18.22, and relies upon it for many development standards; however, the CAD is part of the Unified Development Code (UDC), Title 18. The applicability section of the VDC is Title 18.05(3): "Scope. Hereafter, no building, structure, or land use activity shall be engaged, erected, demolished, remodeled, reconstructed, altered, enlarged, or relocated, and no building, structure or premises shall be used in Jefferson County except in compliance..." There is no definition for Building. ""Structure" means a permanent or temporary edifice or building or any piece of work artificially built up or composed of parts ...". There is no definition for Land Use Activity. "Use" means the purpose that land or building or structures now serve or for which they are or may be occupied, maintained, arranged, designed, or intended." Based on this Scope, the UDC would not apply to general grading and vegetation alterations in a buffer. The CAD has a supplemental applicability section, JCC 18.22.020 states: Unless otherwise exempted under JCC 18.22.070, [exemptions] any land use or development activity that is subject to a development permit or approval under this title may only be undertaken on land located within or containing a critical area or its buffer if the provisions of this chapter are met. Unless otherwise exempted under JCC 18.22.070, uses and activities in critical areas or their buffers for which no permit or approval is required by any other provision of county code are also subject to the development standards and other requirements of this chapter. Since the CAD also includes vegetation protection measures, and the rest of the UDC might also, the applicability of the VDC needs to be expanded. 814 Second Avenue Suite 500 Seattle, WA 98104 www.futurewise.org phone 206 343-0681 fax 206 7098218 This CAD applicability section exempts activities in JCC 18.22.070 from review under the CAD. These include: all utility activities,; any activity in a stream, wetland, or buffer during an emergency; trails within buffers and Jefferson County Planning Commission Janual)' 30, 2009 Page 2 wetlands; filling wetlands to elevate trails; installing new wells in streams, wetlands, and buffers; and any activity that can be considered broadly (rather than narrowly) by the administrator to be similar to a listed activity. These activities are not subject to anything in the CAO, including prohibitions, protection standards, and mitigation/replacement requirements. Given that the CAO standards are supposed to also protect shorelines, the applicability to the exemptions needs to be changed to be more similar to the SMP, where standards still have to be met, but a special permit review is not needed. A traditional zoning ordinance, like the UDC, usually covers structures and uses (typically meaning the primary use listed in a use table or zoning district chapter). Activities that affect critical areas and shorelines include the associated facilities and activities of a primary use, but such activities also may not be associated with any use or only related indirectly. Outdoor use areas that are accessory to another use need to be included. Activities that are sometimes not associated with, or are distant from a primary use also need to be covered, such as land grading and vegetation alteration. For Shorelines, it must also include events that obstruct the public use of the shoreline (such as rubber duck race fundraisers, pay-to-participate fundraising events like festivals, etc.) that may not include structures or traditional "primary" uses. Article 1.A. of the draft SMP states: "All proposed uses and development, as defined in Article 2, occurring within shoreline jurisdiction shall comply with this Program and RCW 90.58..." The UDC, CAO, and SMP need to be applicable to ALL land alterations. uses. and development. We recommend that JCC 18.05(3) and SMP Article 1.A be changed to include all land alteration, uses, and development. Such changes should be extended throughout the rest of the CAO and SMP where those terms are repeated - especially the permitting or review sections. The draft SMP Article 1.6.C does have a similar statement already. A definition of "land alteration" should be added that is limited to and addresses the special disturbance issues with critical areas and shorelines. This way it doesn't apply to and interfere with general zoning review and administration. Lastly the CAO applicability section JCC 18.22.020 must be revised so the activities in the exemption list are not excluded from meeting protection standards in the CAO, and thus the SMP. Given that these issues regarding the integration of the CAO into the SMP, the referencing of the appropriate CAO sections needs to be carefully reviewed again, to either carefully include or exclude parts of the UDC that the CAO relies upon or that are inappropriate for the SMP. These might include the applicability sections, permit review sections, enforcement sections, and especially the disposition of definitions used in the CAO that mayor may not be appropriate for the SMP (including the definition of any words in the CAO that have different definitions in the SMP). Nonconformities The proposed SMP is not clear in how non conformities are to be reviewed, though it does indicate that specific nonconformities do not have to be reviewed. With the proposed nonconformity provisions, much of the residential development will be for nonconformity - on nonconforming lots. Because of this, clarifYing the nonconforming development section becomes very important. All shorelines have existing development. It is important to establish how that existing development will be treated when new regulations come into effect. This includes situations where a building is inside the buffer because the river moved, or the buffers changed; and includes uses that are no longer normally allowed because they are not appropriate for the shoreline environment. These two examples are very different. A nonconforming structure will be fairly common, and should be allowed to be continued and replaced as the existing regulations propose. A nonconforming use is something that is normally prohibited, and existing nonconforming uses should be discouraged and be given carefully review if they are expanded. In the use table in Article 4, there are many cases of uses being prohibited, including single family residences.ln Jefferson County, there will be instances where existing uses that are prohibited uses will propose alterations or expansions. The SMP does not say how these uses are to be reviewed. They cannot be reviewed as a Substantial Development Permit, since they are NOT permitted, as marked in the table by an'S'. They cannot be reviewed as a Conditional Use Permit, since they are NOT a conditional use, as marked in the table by an 'C'. They are prohibited, as marked in the table by a 'X'. If the method of review is not indicated in the table, then it must be indicated some other way. Normally the Nonconforming Development section would describe what how to review Jefferson County Planning Commission Janual)' 30, 2009 Page 3 such development proposals - this is Article 10.6 in the proposed SMP - however the proposed SMP does not. Article 10.6 should specifY a reasonable review process. Use of the Nonconforming Development section relies on the definitions of different types of nonconformity. The proposed SMP has a definition for Nonconforming Structure and Nonconforming Lot, but not a definition for Nonconforming Use. The definition of Nonconforming Structure accounts for buildings that may be in a buffer, etc., but it doesn't account for outdoor areas or uses. Just as the ordinance provides grandfathered status for nonconforming structures, it should do the same for existing outdoor use areas that may be in the buffer, such as a yard or parking area. We recommend that the definition be adjusted to cover" Nonconforming Structures and Areas". For a definition of Nonconforming Use we recommend the following definition - note that it includes provisions for when the use is no longer considered nonconforming (with emphasis added): Nonconforming Use. The use of a structure or land that was lawfully established at the time of its initiation but is currentlv orohibitedby this title is a Nonconforming Use, and may utilize structures or land areas that are Nonconforming Structures or Areas. A Nonconforming Use that is discontinued for any reason for more than one year shall have a presumption of intent to abandon, shall not be re-established, and shall lose its nonconforming status. ln the case of destruction or damage where reconstruction costs exceed 50% of the assessed value, the use shall lose its nonconforming status. With adequate definitions, the Nonconforming Development section can clearly indicate how each type of nonconformity is to be reviewed. The existing section mixes standards and requirements for nonconforming uses, lots, and structures together. Nonconforming structure and area standards should be grouped together, organized, and streamlined. Paragraph 1 0.6.D needs be the first standard, and should read: Non-conforming structures ancl areas, other than non conforming sin!]lc family rcsidences that arc eXilltntled-or--ettJ.afgetl, shall be review through normal review processes. Alterations to them that increase the_Don-J:_onfgI1nity (inchldjngn\:;1.Y5iIJJ..cture__QLiJJ1',!i\yj!hiniL.b1!fftrl must obtain a variance or be brought into conformance with this Program and the Act. Any non-conforming devclopmcnt structure that is moved any distance must be moved to comply with the bulk and dimensions requirements of this Program. Paragraph E (requiring commercial and industrial nonconforming structures to get a conditional use permit) should be eliminated in favor of the above process. Nonconforming use standards should be grouped together, organized, and streamlined. The first standard should establish how new development for nonconforming uses are reviewed: Expansions of nonconforming uses beyond the structures or uses areas they already occupy shall be reviewed as a conditional use. Residences are usually not nonconforming uses, but when they are (over water for example) they should be reviewed as other nonconforming uses. Any additional criteria for reviewing a nonconforming use (in addition to the conditional use permit criteria) should be provided in this section. Criteria to qualifY or disqualifY for nonconforming status should usually be in the definition, as recommended. Paragraph 1 allows the changing of one nonconforming use into another, and should be deleted. New uses that are prohibited should never be allowed to be established. Furthermore, Subparagraph 7 reads, "Uses which are specifically prohibited or which thwart the intent of the Act or this Program shall not be authorized." This sentence effectively negates the rest of Paragraph 1, so the whole thing should be deleted. Related to the definitions discussion is the issue of Nonconforming Lots. The definition is established in an attempt to allow residential development on small lots near the water without permit review. This problem is discussed further in the section below. The idea of Nonconforming Lots, as it exists in the SMP and as proposed, seems to stretch the idea of nonconformity too far. Nonconforming Lots are defined as too small for a structure too meet the buffer. The problem is that buffers and setbacks are applied to structures and uses, not to lot lines. Jefferson County Planning Commission January 30, 2009 Page 4 There are plenty of uses that can take place on such lots, especially water dependent and water related uses, without the lot being considered nonconforming. It is only certain uses that must meet the buffer, not the lot. The principal benefit of distinguishing between non-conforming uses, non-conforming structures and areas, and nonconforming lots is that they can then be treated in ways that are appropriate to their potential adverse impact on shorelines resources and nearby uses. Those developments that are less of an issue, such as non-conforming structures, can receive less scrutiny, while non-conforming uses can receive greater scrutiny. Review Processes and Attempts to Avoid Review Processes We are concerned with a number of attempts in the proposed SMP to waive permit review. This seems to be a misguided attempt to ease the hearing review process currently required for all shoreline permits, which then allows development that normally needs careful review to be established with little or no review. These items are discussed further below. As noted above, Nonconforming Development can be categorized to provide different types of review based on the situation. This concept can be extended to different shoreline permits, in a similar manner to the zoning review currently established for Jefferson County. Previously all SMP permits were Type 111 reviews requiring a hearing. The proposed SMP includes the provision for a Administrative Conditional Use review, which would eliminate the hearing requirement. This would result in a Type 11 review. We support such streamlining of the review process for uses and activities with a low potential to adversely impact neighboring property owners and the environment. We also agree that the Discretionary (Hearing) Conditional Use review should be reserved for important issues. This would greatly reduce the cost to the applicant and county, and greatly reduce the time such review takes. The permit review section (Article 9.6) and the Administrative section (Article lOA) should provide that permits will use the Type 11 review processes as provided in the appropriate code sections, and the Table in JCC 18.40 should be changed as appropriate. While we support streamlining the review process, we do not support the attempts in the proposed SMP for several types of development to eliminate shoreline review. These include: Expansions of Existing Single Family Residences. Normally, if a development is located within the buffer of a stream or wetland, it would need to get a variance, and would also be approved by Ecology. Generally, a residence should not be in the buffer unless there is some hardship or no alternative site. Article 10.6.F would waive a Variance and Conditional Use permit review for expansions of existing nonconforming residence structures. Articles 10.6.K and 6.1.E would waive a Variance review for establishment of wholly new residence structures close to the water, and does not require a Conditional Use review; thus creating a new nonconforming structure. And since residences are exempt from a Standard Development Permit, they would get only rudimentary exemption review. Apparently this is in spite of the fact that, in some locations, residences are specifically listed as Conditional Uses or even prohibited. Furthermore, Article 9.4.B (Statements of Exemption) states that .....no statement of exemption is required for the construction of a single-family residence when a County building permit application has been reviewed..."; and Article 9.4.C restates this, "No statement of exemption shall be required for other exempt uses or developments...". If no Statement of Exemption is required, then no application material needs to be submitted and reviewed, as indicated in Article 9.4.A. Most other SMPs require that the development proposal has to be submitted with materials on which to base a statement of exemptionJKfun: a determination is made that it is exempt; and that the statement of exemption is needed to proceed. Effective design and mitigation cannot take place without any review. That is why permits are normally required for development close to the water. The proposed SMP is attempting to waive both these processes, which will result in the potential to adversely impact Puget Sound and neighboring property owners. Residences built close to the water or otherwise not meeting the standards of the SMP should never be exempted from all permit review. Such development must receive an official permit review to provide surety that the policies and standards of the SMP are being met, including minimization and mitigation. The better solution is not to eliminate permit review, but to change the permit review process to meet the situation. For existing lots that are too small to meet the buffer requirements, we recommend that the county carefully review the potential cumulative impacts of the proposed development and prepare standard measures to address these impacts while Jefferson County Planning Commission Janua'Y 30, 2009 Page 5 allowing reasonable development. These residences could than be given an administrative review of some sort that does not need a hearing. If the mitigation to deal with cumulative impacts is not determined in advance, we recommend that such residential reviews be conducted as normal Conditional Use or Variance reviews. Shoreline Environment Maps Shoreline environment mapping seems to stop at the federal land ownership line, yet the Coastal Zone Management Act requires federal compliance with state Coastal Zone Management Plans. Washington's includes the states local SMPs. Thus some activity on federal land is subject to the SMP. The mapping needs to be extended into the federal lands so that non-federal activities (leases, inholdings, cabins, etc.) will be able to be reviewed appropriately. Environment Designations and Boundaries There does not seem to be a clear description of where shoreline environments change, especially where such changes extend into broad shoreline jurisdictional areas, such as floodplains and open water, which maybe a mile wide. The map shows shoreline jurisdiction as a line rather than an area, indicates a general location at a scale that does not provide accurate boundary placement. In addition, the map does not indicate how a change in environment is extended away from the shoreline. A small change in angle can propagate dramatically as the line is extended into a broad shoreline area, especially a floodplain where development might occur. How are the Priority Aquatic and Aquatic environments separated? Is the Priority Aquatic a narrow band along the shore or does it extend out to the County line in the middle of the sound? Whether the development is in one environment or another makes a dramatic difference to the project proponent. We would recommend preparing a map that shows environments as area polygons, rather than as lines. While some may argue that a line is adequate, when you undertake the effort of using area, you quickly realize it is not that simple, because lines intersect and shorelines with different environments meet and odd angles. Status of New Shorelines and Shoreline Wetlands There also did not appear to be default contingencies laid out for providing shoreline environments in the cases of finding new shorelines that were not previously known, and for creation of new shorelines due to construction of new reservoirs, new impoundments, and excavation of mining or other ponds. Wetlands that are associated with a shoreline may lie outside a floodplain. Where the floodplain is cut off or isolated due to diking, the wetlands are typically still hydologically associated with the river through the groundwater patterns driven by the river levels, especially during spring high water. There needs to be a statement that such associated wetlands have a shoreline environment that is the same as the nearest adjacent shoreline segment. This concept may also apply to associated wetlands for marine and lake shorelines when they lie outside the traditionally established shoreline jurisdictional area. We strongly support the proposed Priority Aquatic shoreline environment. However, as indicated above, it is unclear what its extent is. We recommend that the environment description be clarified as to whether it extends to the County line, center of the waterbody, other side of the river, just shallow water, etc. Definitions The definition section is 44 pages long, and is extremely detailed. A careful review of the definitions is needed to be sure that (1) all the definitions are actually used; and (2) they are used the way they are defined at each point of usage; and (3) the definition is actually needed rather than the general dictionary use of the term. "Beach restoration and enhancement" uses the terms "restoration" and "enhancement" in a different way than the definitions of those terms. It seems to be used for both new development and ecological restoration, which are opposite purposes. "Chemicals" are used for much broader purposes than those listed. "Dike" is a structure used for much broader purposes than those listed. "Essential Public Services" is too broad for use in the SMP. It includes things that should not be grouped for common application across all environments. The definition should include a distinction for Essential Public Services of a Utility Nature, and Essential Public Services of a Community Service Nature. This should be carried Jefferson County Planning Commission January 30, 2009 Page 6 into the text and use table. These two categories should be treated very differently, since utilities may be water dependant or need crossings, where as community services should be treated as commercial uses. As is, Group Homes, Jails, or other non-water dependent uses could be built on a pier which would result in significant adverse impacts to the waterbody. Goals Article 3 Master Program Goals, splits the goals into many sections, but doesn't have a section for general goals. This needs to be added to address general subjects such as no-net-loss of ecological functions, the coordination of the regulations with non-net-loss and the restoration plan, water quality and erosion control, and most importantly the legislative policy preferences of the SMA in RCW 90.58.020 should be listed. In addition, the SMP Guidelines explicitly discuss the importance of the Channel Migration Zone to ecological functions of rivers - especially the continual creation and enhancement of fish habitat. Yet Jefferson County only treats the Channel Migration Zone (CMZ) as a geologic hazard in the CAO. A statement is needed in the goals and policies that addresses the Channel Migration Zone's ecological functions aside from the hazards. This goal needs to be implemented by considering the effects on channel migration functions whenever development is proposed within the Channel Migration Zone. This can be accomplished by referring to it at all locations where mitigation or mitigation plans are discussed, especially for uses that typically encroach on the CMZ. We strongly support Article 3.6 Restoration and Enhancement Goal 1 (with emphasis added): Improve shoreline functions, processes, and values over time through regulatory, voluntary and incentive-based public and private programs and actions that are consistent with the Shoreline Master Program Restoration Plan and other agency adopted restoration plans. This goals is consistent with the restoration planning requirements of WAC 173-26-186 (8)(c). Typical restoration planning works hard at covering the voluntary and incentive-based programs, but rarely covers the regulatory side of restoration planning. Restoration should be included in the SMP regulations as well, and should be addressed in the restoration plan. While this goal is implemented at select regulatory locations for commercial, industrial, etc., it should also be implement at a more general level to reduce shoreline armoring and improve degraded riparian vegetation when possible. Use Table Article 4.3.A invokes the requirement to use the land use table (Table - 1, though the table name and number are not prominently displayed). However, the allowed uses for shorelines also appears to be controlled by the text for the various subjects. There are cases where the table and text contradict (Mining and residential duplexes for example), cases where the two to not clearly reflect the nuances of the other (especially for boating facilities), and cases of typographic errors (multi-family conditional use - admin? discret?). The table and text need to be carefully compared to eliminate errors. In addition, a statement is needed in paragraph A about what the relationship is between text and table when interpretation is needed. Buffers We strongly support the science based buffers proposed in the draft SMP. Of particular interest to us is Article 6.1.D.8 Buffer Condition. We believe that this requires restoration of degraded buffers to ensure that a buffer is able to protect the critical area from the new development, however it needs some clarification. Buffer Condition: At least eighty (80) percent of the required shoreline buffer area shall be restored and maintained in a well-vegetated and predominantly natural condition to ensure that it provides the desired ecological buffer functions. On review and approval by the administrator. utfp to twenty (20) percent of the buffer area, or at least 15 linear feet of the water frontage, whichever is greater, may be retained for 'active use' and for shoreline access, provided that such areas are located to avoid areas of greater sensitivity and habitat value. and deqraded areas are restored. This requirement shall not apply to retroactively existing uses, unless new development is proposed. The standards in Vegetation Conservation, Article 6.4.B.4, need clarification to distinguish the list of vegetation protection measures from the more protective buffer requirements. Jefferson County Planning Commission Janual)' 30, 2009 Page 7 Proponents of all new shoreline uses or developments shall maintain existing native shoreline vegetation located outside buffers to the maximum extent practicable, except that the following activities shall be exempt from this requirement... Article 6.7 Common Line Setback needs to be moved to be located with the regular buffer and setback standards so all buffer requirements can be seen together and clearly understood. Development Regulations Transportation Regulations - Article 8.1 O.D- Design and Operation. The proposed regulations are well considered and generally protective of shorelines. We support them with the following recommended changes. 1. Transportation facilities in shoreline jurisdiction shall be located to be as far from the shoreline features as possible. and shall be designed to generally follow natural topography, to minimize cuts and/or fills, to avoid adverse impacts to shoreline ecological functions and processes. including channel migration functions. Wherever roads or railway embankments cross waterways including remnant stream channels and oxbow bends, crossings of ample cross-section shall be provided to span the feature. 2. Raised arterial roads or railways shall be built outside the f100dway except for necessary crossings. If built in the f100dplainway fringe, such routes should be designed to avoid obstructinq floodwaters usimx construction at qrade. dips. culverts. bridges. or similar methods a!i9ncd generally parallel to outside stream bends so they hill also act as setbacklc.'ees. Any parking areas required along such roads shall be located to prevent or minimize the need for flood control or shoreline armoring. Local access roads in floodplains shall also be built so that floodwaters are not abnormally obstructed nor diverted. As written the standard would have encouraged additional degradation of floodplain function. Our recommended edits correct this to be consistent with protection of shoreline ecological functions. 6. Bridges or bottomless culverts or other similar structures shall be used in accordance with WDFW guidance to protect shoreline ecological functions and processes. 'rransportation erossinns over the ordinal)' hiqh water and Bridge approaches in f100dways shall be constructed on open piling, support piers, culverts. or other similar measures to preserve hydraulic processes. New #. Wherever possible, new water crossings shall be avoided and minimized by using alternate access locations not needing a crossing, or by consolidating multiple accesses, or by sharing existing accesses. Another standard is needed to require a mitigation plan similar to those needed for other uses. Utility Regulations - Article 8.11.C - General. The proposed regulations are well considered and generally protective of shorelines. We support them with the following recommended changes. 1. All underwater pipelines transporting liquids intrinsically harmful to aquatic life or potentially injurious to water quality are prohibited, except in situations where no other feasible alternative exists. In those limited instances when permitted, automatic shut-off valves shall be provided on both sides of the water body. and pipe sleeves shaH be used to facilitate repair without future encroachment on surface waters and wetlands. 2. Utilities that are not water-dependent shall be located away from shorelines and buffers unless it is demonstrated that alternative locations and alternative technology are infeasible. Like other uses, utilities are not inherently water-dependant and should meet the buffer except for those water dependent components. New #: Buried utility transmission lines crossing a stream corridor shall be buried a minimum of four feet below the maximum scour or 1/3 of the bankfull depth of the waterway, whichever is greater, and for a similar depth below any associated f100dway and floodplain to the maximum extent of potential channel migration as determined by hydrologic analysis. Jefferson County Planning Commission January 30, 2009 Page 8 Residential Policies 8c Regulations - Article 8.8. The proposed policies and regulations are well considered and generally protective of shorelines. We support them with the following recommended changes. Policy 5. Clustering of dwelling units and accessory structures should be implemented to preserve natural features, minimize physical impacts and reduce utility and road construction and maintenance costs. Streams, wetlands, their buffers, noodways, and channel miqration zones should be placed within separate critical areas !Iq.rJ2..QI.;Htqch~sjJQ..Qne.QJJhe.dJ~ydQ12iLQteJots, .<J.D..Q..12I9Vi ded with .a method ofl ol111JenlJ..J)191ecctLm1 Policy 8. Creation of new residential lots through land division should be designed, configured and developed to ensure that no net loss of ecological functions and processes occurs from the plat or subdivision, even when all lots are fully built-out. Where ecoloqical functions are deqraded. they shall be restored along with applicable buffers before establishinq new impacts from more intense uses and displacement of areas performinq eCl!loniGlLJuncUons, Policy 9. Residential developments of nine or more dwelling units shall arc cncouragcd, but not required, to provide public access to the shoreline. This is required by the SMP Guidelines. Boating Facilities Article 7.2.C - ClarifY if this is for ramps and rails, like paragraph D. Article 7.2.E - ClarifY if this is for lifts, like paragraph F. Article 7.2.E - This regulation for commercial (and other) boating facilities would allow two options for docks, one simply for people to walk on. lt needs to be edited to read "The dock/pier/float provides opportunities for water dependent activities for a substantial number of people to access the shoreline." Alternatively, if the two options were joined by an "and" rather than an "and/or" then the public could use the primary use's dock for access purposes, which is in-line with public access policies. Policy 5. We strongly support this policy because it addresses the uncontrolled proliferation of docks on shorelines and the subsequent degradation it causes. However, the implementing regulation only partially implements the policy, and may even be contrary to it. lt reads: Article 7.2.F.9 - Residential developments with more than four (4) lots or dwelling units may be granted permits for community docks that are shared by at least one other owner. No more than one (1) dock/pier or float may be permitted for each three (3) adjoining waterfront lots, with necessary access easements to be recorded at the time of permitting. Single-user docks. piers and floats for individual residential lots may be permitted in existing subdivisions approved on or before January 28, 1993, only where a shared facility has not already been developed. Prior to development of a new single-user dock/pier/float for a single residential lot, the applicant shall demonstrate ... This regulation is inadequate to implement the policy. For a twenty one lot subdivision on the waterfront, this regulation would still allow 7 docks. Furthermore, the underlined provision would allow the non-waterfront lots in existing subdivsions to build additional docks (provided they can get an easement to the water). This is contrary to the policy and encourages the proliferation of docks and the degradation of the shoreline. In its place we recommend the following new implementing regulation During the review of new lots and new multi-family development, the need for moorage shall be established in the approval process: a. Such proposals not needing moorage shall be restricted from the development of future moorage to prevent applications for future individual moorage. b. Proposals needing moorage shall provide shared moorage. c. Moorage facilities shall be designed to consolidate any necessary launching facilities rather than establishing separate launching facilities as much as possible. d. Proposals shall provide a plat note or record a covenant prohibiting individual moorage facilities and establishing the limits of any approved moorage facility. Jefferson County Planning Commission Janum)' 3D, 2009 Page 9 Beach Access Structure Regulations - Article 7.1. The proposed policies and regulations are well considered and generally protective of shorelines. We support them with the following recommended changes. Article 7.1.C.3. When permitted, beach access structures shall be located, designed and operated to avoid critical areas and their buffers. unless providing access to a water dependent activity. and !Q..prevent a net loss of shoreline ecological functions or processes, including, but not limited to... Mining The proposed SMP provides an overly broad allowance for what can be considered mining. The mining section includes both long distance conveyors and barge terminals, even though these are not included in the definitions for mining. This is the equivalent of saying that the trucks car'Ying grain for farmers and the barge terminal for shipping grain is all considered farming. Or like saying an equipment manufacturer's trucks that caTJYing the equipment and the cargo terminal for shipping the equipment is manufacturing. Barge terminals need to be treated as the port or industrial uses they are. Such uses should only be allowed in existing industrialized or highly developed areas, not in relatively intact areas. Of particular concern is that a barge terminal would be allowed as mining, and then mining would be allowed in the Conservancy environment just so a barge terminal can be located there. Such industrial activity is the opposite of the purpose and designation criteria of the Conservancy environment, as seen below (with emphasis added): Article 4.2.C.4. Conservancy (C) i. Purpose. The Conservancy designation provides for sustained use of resource lands and other relatively undeveloped shorelines while protecting ecological functions, conserving natural, historic and cultural resources, and providing recreational opportunities. ii. Designation Criteria. A Conservancy designation is assigned to shoreline areas landward of the ordina'Y high water mark if they do not meet the criteria for the Natural designation and if any of the following characteristics apply: . The shoreline is relatively undeveloped or currently supporting resource-based uses; or · The shoreline is publicly owned; or · The shoreline is predominantly low density Rural Residential (RRl :10, RRl :20) use; or · The shoreline can support low density residential development and low intensity water-oriented uses, including some commercial and industrial uses, without significant adverse impacts to shoreline functions or processes; or · The shoreline is a good candidate for ecological restoration. With these points in mind we recommend that barge terminals not be considered as part of mining, and that barge terminals not be allowed in the Conservancy environment, as they are inconsistent with the Purpose and Designation Criteria. Aquaculture Policies 8: Regulations - Article 8.2. The proposed policies and regulations are well considered and generally protective of shorelines. We support them with the following recommended changes. Policies 7 and 9 place aquaculture as a higher preference to preferred uses. These policies need to be edited to be consistent with the SMA. Article 8.2.D.2. Ongoing maintenance, harvest, replanting, restocking or changing the species cultivated in any existing or permitted aquaculture operation shall not require a new permit, unless or until: i. The physical extent of the facility or farm is expanded by more than twenty-fwe percent (25%) or more than twenty-five percent (25%) of the facility/farm changes operational/cultivation methods ... The 25% provision must be eliminated. It is considered development, and there is no exemption for such development. Normal maintenance and operations would not be affected by the SMP if there was no expansion. Article 8.2.D.3. seems to be intended to exempt geoduck aquaculture from review. However, the use table specifically indicates that geoduck aquaculture requires a conditional use. This provision need explicit clarification for people to understand what is intended. At a minimum, we recommend the following edits to Jefferson County Planning Commission January 30, 2009 Page 10 ensure that the administrator reviews the activity to ensure it qualifies to bypass the permit process, similar to an exemption review, and to include other methods of dredging. The administrator may determine that minor or low impact aAquaculture uses and activities (except for geoduck) involving hatching, seeding, planting, cultivating, raising and/or harvesting of planted or naturally occurring shellfish shall not be considered development, as defined in Article 2, and shall not require a shoreline substantial development permit, unless: i. The activity interferes with normal public use of surface waters; or ii. The activity involves placement of any structures as defined in Article 2; or iii. The activity involves dredging using mechanical equipment such as suction. hydraulic blasting. clamshell, dipper, or scraper; or iv. The activity involves filling of tidelands or bedlands. Thank you for considering our comments. If you require additional information please contact me at dean@futurewise.org or 509-823-5481. Sincerely, ~4.P~ Dean Patterson Shoreline Planner Futurewise fufiire:wi se *.*/" Building communities "* Protecting the land June 17, 2009 Jefferson County Planning Commission c/o Michelle McConnell, Associate Planner Jefferson Co. Dept. of Community Development 621 Sheridan St. Port Townsend, WA 98368 Sent by email to:mmcconnell@co.jefferson.wa.us Re: Jefferson County Shoreline Master Program Update Dear Jefferson County Planning Commissioners: Thank you for the opportunity to comment on the proposed Jefferson County Shoreline Master Program. Our mission at Futurewise is to promote healthy communities and cities while protecting working farms and forests and shorelines for this and future generations. Futurewise has members across Washington State, including many in Jefferson County. As we stated in our previous letter, Futurewise strongly supports the Jefferson County Shoreline Master Program (SMP) update effort. We stated that, with recommended changes, the preliminary draft SMP could help in the recovery of Puget Sound while providing appropriate opportunities for development. However, we have noticed that the changes made by the Planning Commission in the recently released draft have addressed few, if any, of our concerns. We are providing our previous letter, along with this supplement of additional comments. Please consider them included with these comments. Page 1-1 of the draft SMP provides the Shoreline Management Act (SMA) policy. The policy's last sentence of the first paragraph has the fundamental policy statement of the Act (with emphasis): "This policy contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife. and the waters of the State and their aquatic life, while protecting generally public rights of navigation and corollary rights incidental thereto....' One of the primary means of doing this for all SMPs is to establish Natural environments for the shoreline areas that are most intact, with the best ecologically functions, and are the most fragile. Jefferson County has done this through the Natural environment for the upland areas, and the Priority Aquatic environment for the water areas. The SMP Guidelines intends these types of environments to be the most protective of the ecology, and it has implications that run through the entire SMP document, especially the use provisions, such as the use table found in the draft SMP. The SMP Guidelines provide that these environments are supposed to be limited to low-intensity uses, and are supposed to limit structural changes in the environment. The Conservancy environment is also intended for lower-intensity development, though less so compared to the Natural environment. This point is the basis for most of our comments below. Use Table Several changes have been made to the use table that eliminates the protections for the more protective environments. Specifically, the use table now allows many uses when they were previously prohibited, or changes uses that previously needed conditional use permits into substantial development permits or exemptions. The table now also allows many structural changes when they were previously prohibited, or changes structures that needed conditional use permits into substantial development permits or exemptions. Of particular concern are the changes that allow intense levels of development in the 814 Second Avenue Suite 500 Seattle, WA 98104 www.futurewise.org phone 206 343-0681 fax 206 7098218 Jefferson County Planning Commissioners June 17, 2009 Page 2 Priority Aquatic, Natural and Conservancy environments, for example: industrial/port development in Conservancy, recreational development in the Priority Aquatic, multi-family residential in Conservancy, major transportation facilities in the Conservancy. These changes will result in a significant loss vegetation, wildlife habitat, and aquatic habitat contrary to the policy of the SMA. These changes should be reverted to meet the purpose of the environments. Beach access was changed in the use table to eliminate distinctions between the environments (especially protecting the sensitive environments), eliminate the distinction between public and private, and make them a (P), a permitted use, in all environments. The table should be reverted back to the original text. At a minimum, these structures need to be conditional uses in the water environments and the natural environment. Docks and piers were changed in the use table to eliminate distinctions between the environments (especially protecting the sensitive environments), eliminate the distinction between residential and non-residential, and make them a (P) in all environments. The table should be reverted back to the original text to be protective of the sensitive environments. The table was changed to allow all Recreation activities in the Shoreline Residential and High Intensity environments. Thus indoor hockey rinks, sports complexes, etc. would be allowed with equal preference to the water-oriented recreation. The preference for water-oriented recreation needs to be re-established so that priority is given to recreational uses that require a waterfront location and to protect shoreline functions. The table was changed to group single family associated boating facilities and boat houses. The table originally separated boathouses by themselves to distinguish the convenience of having a boat garage from the allowance for boating facilities through making it a conditional use when it's allowed. Boathouses have greater impacts than other boating facilities because they permanently cover part of the aquatic or water-side environment, reducing its productivity along with other impacts.' They also have a great potential to disrupt the views of other property owners. This was an important distinction that needs to be re-establish ed, by changing boathouses from (P) back to (C). Aquaculture was changed in the use table to eliminate distinctions between the environments (especially protecting the sensitive environments), eliminate the distinction between most types of aquaculture that have different impacts, and make it a (P) in all environments. Given that aquaculture operations can vary widely in intensity and impact, the distinctions should be re-established. In addition, the highest intensity operations should not be allowed in the Natural and Priority Aquatic environments, which are the most intact and ecologically functioning of the environments. Intense operations replace rather than protect the native "land and its vegetation and wildlife. and the waters of the State and their aquatic life". as stated in the SMA policy. The table should be modified to be protective of the sensitive environments. Also note that the SMP Guidelines state that "[a]quaculture should not be permitted in areas where it would result in a net loss of ecological functions, adversely impact eelgrass and macroalgae, or significantly conflict with navigation and other water-dependent uses.'" This calls for careful review of aquaculture in the Natural and Priority Aquatic environments, where the Guidelines indicate that: "These systems require that only very low intensity uses be allowed in order to maintain the ecological functions and ecosystem-wide processes",J and that , Barbara Nightingale and Charles Simenstad, University of Washington, Wetland Ecosystem Team, School of Aquatic and Fishery Sciences, White Paper: Overwater Structures: Marine Issues pp. 62 - 67 (Washington Department of Fish and Wildlife, Washington Department of Ecology, Washington Department of Transportation: May 2001). Accessed on June 16, 2009 at: http://wdfw.wa.gov/hab/ahg/overwatr.htm 2 WAC 173-26-241 (2). J WAC 173-26-211(S)(a)(i). Jefferson County Planning Commissioners June 1 7, 2009 Page 3 the preferred location is the Conservancy environment.4 Additional work is needed to make this subject compliant with the SMP Guidelines. At a minimum, the changes to the table. policies. and regulations need to be reverted back to the original text, and our previous comments addressed. The SMP guidelines require policies and regulations for "boating facilities" which are the multi-user pleasure boat facilities, such as marinas, public launch ramps, and similar facilities. These facilities need special consideration for their multi-user impacts, like sewage, waste, and fuel handling; and special location and construction issues.' The preliminary draft SMP addressed marinas and public launch ramps. The new draft SMP combines the public ramps into the private single user ramps, leaving the multi-user aspect un-addressed. This change needs to be reverted back to the original text to meet the SMP Guidelines. Buffers The new draft SMP changes the buffers for marine shorelines from the science-based buffer of 150 feet in all environments, to be 50 feet in the Shoreline Residential and High lntensity environments. There are several issues with these changes. 1. These smaller buffers are not based on science, but rather based on existing development and convenience of future permitting. Establishing small buffers that are supposedly "based on science" implies that meeting the setback and buffer will result in no impacts, and thus a project need do no more. lt also implies that exempt development close to the water (mostly residential) that meets the buffer doesn't need more detailed and careful review of their impacts. This is not the case. Protecting Nearshore Habitat and Functions in Puget Sound: An Interim Guide recommends minimum shoreline buffers of 78 to 150 feet or to protect shoreline functions: 2. The larger and smaller setbacks are inversely related to the use intensity of the area, such that the more intense residential and high intensity uses have smaller buffers. This is contrary to the science that says that more intense uses need bigger buffers and setbacks. 3. These small setbacks and buffers will be applied equally to degraded areas (which was probably the intent), but also to the ecologically functioning locations in the Shoreline Residential and High lntensity environments, even thought these may be in urbanizing areas where new development is capable of meeting the science-based buffers. lf the intent is to deal with existing development that cannot meet the buffer, allowances can be made for doing so, but they need careful limits, so that they do not result in continued degradation of intact areas. ln addition, the science requirement in the SMA means you must justifY buffers that are less than the science standard - meaning you have to show your work. Our recommendations to deal with this issue are: (A) ldentifY the science based buffer and apply it to those locations that can meet the buffer; such as developed areas with pockets of intact vegetation, developed areas that are set back from the water, and undeveloped areas planned for future urban development that can meet the buffer. This buffer should be at least 1 50 wide. The areas that cannot meet the buffer need to be carefully mapped and the correct environment (Rural Residential, High lntensity, etc.) applied to them. You may need to split the urban environments for areas that can meet the buffer and those that can't. 4 WAC 173-26-211 (5)(b)(i); (ii). 'WAC 173-26-241 (3)(c). 6 EnviroVision, Herrera Environmental, and the Aquatic Habitat Guidelines Working Group, Protecting Nearshore Habitat and Functions in Puget Sound: An Interim Guide pp. 111-39 - 111-41 (October 2007). Available at: http://wdfw.wa.gov/hab/nearshore guidelines/ Jefferson County Planning Commissioners June 1 7, 2009 Page 4 (B) For those areas with development already in the buffer, they need to acknowledge that the science based buffer cannot be met, and an alternate buffer strategy is being used. For these areas, new development should be carefully reviewed on a case-by-case basis using the smaller buffer size, but also using enhancement of vegetation where opportunities exist, and removing obsolete and ineffective near- or overwater structures. The new regulation #7 (or similar regulation) in the Buffers section should be modified to state more clearly the requirement for enhancement. Common Line Setback The SMP was changed such that the common line setback was determined by looking for houses located close to the water within 300 feet to either side of the site, and drawing a line between them to establish the site's setback. Note that shorelines undulate, and can easily do so within the 600 foot distance. Thus the shoreline can curve in between the two houses on either side resulting in the line drawn between them being extremely close to or even crossing the water. This system has the same problem with the original 50 foot measurement, though the problem would be more limited. This system using the 300 feet distance does not work, and needs to be changed back to the original number of 50 feet. Nonconforming Uses Our previous comments expressed concerns with the nonconformity provisions. Changes to them have increased our concerns. Of particular importance is the deletion of limits on changing one non- conforming use to another. This essentially allows prohibited uses to be swapped in and out of existing sites without limits, other than obtaining a conditional use permit. These are the cases that need the most special consideration, yet the draft SMP provides little consideration to address these problems. See our previous comments for additional details. Additional1tems lndustrial/Port uses are allowed in the Conservancy environment. Such uses are inconsistent with the purpose of the environment and should not be allowed.' Changes to the Mining regulations prohibit it in water areas, which is appropriate. Please note that the level of alteration that results from mining also causes substantial degradation in the floodway and channel migration zone, where (1) the river ecological processes are highest, and (2) the risk of a catastrophic event into a mine during a flood is highest. We recommend that mining be limited in these areas and designed and located so that rivers and streams will not migrate into the mine. When rivers and streams avulse into gravel mines in flood plains very serious adverse effects occur to the environment and nearby property owners." Further, the Shoreline Master Program Guidelines require that mining in a channel migration zone may only be authorized through a conditional use permit, and that mining must be consistent with Growth Management Act designations for long-term commercial significance.' The requirement that residential uses be designed to avoid the need for stabilization was eliminated. A similar standard was eliminated in the armoring section. The Shoreline Master Program Guidelines, in WAC 173-26-231 (3)(a)(iii), provides that: , WAC 173-26-211 (5)(b)(ii)(A) (industrial uses should generally not be allowed in the rural conservancy environment) and B David K. Norman, C. Jeff Cederholm, and William S. Lingley, Jr, Flood Plains, Salmon Habitat, and Sand and Grave! MiningWAsH1NGTON GEOLOGY, vol. 26, no. 2/3, pp. 3 - 19 (September 1998). Available at: http://www .dnr. wa.gov / geology /pdf/fldplain.pdf 9 WAC 173-26-241 (3)(h). Jefferson County Planning Commissioners June 17, 2009 Page 5 (A) New development should be located and designed to avoid the need for future shoreline stabilization to the extent feasible. Subdivision of land must be regulated to assure that the lots created will not require shoreline stabilization in order for reasonable development to occur using geotechnical analysis of the site and shoreline characteristics. New development on steep slopes or bluffs shall be set back sufficiently to ensure that shoreline stabilization is unlikely to be necessary during the life of the structure, as demonstrated by a geotechnical analysis. New development that would require shoreline stabilization which causes significant impacts to adjacent or down- current properties and shoreline areas should not be allowed. The result is that these requirements should be included in the SMP General Standards and apply to all new development. This is what the Shoreline Master Program Guidelines require. For Residential development, the SMP Guidelines (in WAC 173-26-211 (5)(b)(ii)(D), provided below) require that density and lot coverage provisions be included to limit residential development to levels consistent with the environment and the no-net-loss of ecological function requirement. These should include lot configuration limits to prevent the "wall of houses" effect. We recommend a lot size limit consistent with rural development outside urban growth areas (5 acres or more), combined with a maximum lot width limit of 2:1 to prevent long skinny lots. For urban areas, we also recommend a minimum water frontage requirement of 100 feet to accommodate impervious surface issues. Also note the 10% impervious standard below. (D) Residential development standards shall ensure no net loss of shoreline ecological functions and should preserve the existing character of the shoreline consistent with the purpose of the environment. As a general matter, meeting this provision will require density, lot coverage, vegetation conservation and other provisions. Scientific studies support density or lot coverage limitation standards that assure that development will be limited to a maximum of ten percent total impervious surface area within the lot or parcel, will maintain the existing hydrologic character of the shoreline. However, an alternative standard developed based on scientific information that meets the provisions of this chapter and accomplishes the purpose of the environment designation may be used. Master programs may allow greater lot coverage to allow development of lots legally created prior to the adoption of a master program prepared under these guidelines. In these instances, master programs shall include measures to assure protection of ecological functions to the extent feasible such as requiring that lot coverage is minimized and vegetation is conserved. Thank you for considering our comments. lfyou require additional information please contact me at dean@futurewise.org or 509-823-5481. Sincerely, ~4.P~ Dean Patterson Shoreline Planner Futurewise