Loading...
HomeMy WebLinkAbout2961-698 i\ : 1.., ",,"~1.;tt 1"\1',\ ,~, -:.,.. t-f ~v/L PC PI-\ 0 J 17) ~o, ?q&l Plannin2: Commission Revised Draft SMP Comments: The work the Planning Commission (PC) has put into the revised SMP is to be commended. The time extensions recommended by the PC, in the face of not-so-subtle staff resistance, were similarly appreciated. Policy decisions reducing numerous requirements for conditional use permits, reducing buffers to 50 feet in the shoreline residential and high intensity enviroDmental designations, and aDowance of damaged non- conforming homes to be rebuilt in their existing location are major steps toward the balance of purpose sought by the Shoreline Management Ad (SMA). Regrettably, the main problems of the Preliminary Draft SMP - the 150 foot buffers in 70% of the shoreline, excessive application of the Shoreline Environmental Designations, and questionable integration of the CAO into the SMP remain - making the revised draft unnecessarily restrictive toward preferred uses specified by the SMA. The Planning Commission is not to be entirely faulted for the current iteration of the draft SMP. The document they we given to review was a huge expansion of our shoreBne regulatory system. Funded by the Department of Ecology (DOE) aDd heavily influenced by government, tribal, and eDviroDmental organization representatives, it severely limited future cODstruc6on of single-family homes - a preferred use under the SMA - and reduced existing uses to disfavored status. Much has been made by Staff and DOE of the exhaustive and open two year SMP committee that developed the preliminary draft, but the membership of the inOuential techaical committee (STAC) was comprised almost entirely of a tightlylmit group of state agency employees, Tribal biologists, and environmeDtal advisors who are all employment-dependent upon and have a record of supporting expansive regulation over private property. To my knowledge, only one resides in rural .Jefferson County and that person is the beneficiary of seven-f"tgUre grant money. Another member of the STAC has stated in pubBc her belief that aD critical areas should be under pubBc controL Statements sueh as those made by DOE representatives ("The new regulations are important, but we really neecl to work on changing people's attitudes, such as when someone buys an expensive piece of waterfront property, they think they have a right to build on it"), DCD staff ("we saw aD opportunity and we took it," in response to a question why some elements of the PDSMP exceeded DOE guidelines), >>CD staff again ("We want to get everyone off the bluff"), and even the consultant from ESA Adolfson (who speculated on the cumulative impact of "50,000 homes on a shoreline containing 6,200 parcels) are reflective of a predisPOSed bias toward legaDy mandated human and economic uses of the shoreline. The lone "citizen landowner" representative was a former lobbyist for the Washington Environmental Council and was chosen over a life-long Jefferson County resident POSSesSing a wide range of shoreline-relevant interests. The claim that any document coming out of this type of slanted atmosphere could be objective and representative of aD public interests as prescribed by law is hard to receive in good faith, and unfortunately that is the document the PC had to work from. To their credit, the Planning Commission provided a tremendous public service by supporting at least two extensions affording the public at large, who wiD be directly affected by the substantial changes and who wiD bear the financial burdens, ample opportunity to participate in the review of the draft. Formal public review is not an afterthought. Hopefully one positive consequence of another contentious public policy process is a recognition by insular regulating authorities that most PeOple have other things to do besides attend mind-numbing committee meetings, and only begin to pay attention out of necessity when the rules come down. The Planning Commission divided the objectives of their review into three main goals, which is the format I will use to comment on the revised draft. 1) Comply with the requirements and 20als of the SMA CRew) and Guidelines (WAQi Without having defined an actual need to uPdate our SMP, the major justifications for this expansive regulatory control of our shorelines are technical legal requirements and a precautionary approach toward perceived future impacts. BY GREATLY EXPANDING A REGULATORY SOLUTION WITHOUT IDENTIFYING A CORRESPONDING PROBLEM, THE SMP DRAFT IS A PRIME EXAMPLE OF POOR PUBLIC POLICY. The fact is, both the preliminary and revised draft go well beyond the requirements of WAC 173-26 (171-241). There is no requirement to establish ISO foot buffers on the entire shoreline jurisdiction. Adding a building setback. this amounts to an 80% buffer zone on the shoreline! The legal standard is no net loss. The WAC guidelines specifically state buffers are not the only method for achieving no net loss. Actual on-the- ground-success has demonstrably proven Best Management Practices and other site-specific protection remedies to be far more effective than unmonitored fixed-width buffers. The requirement in RCW 36.70A.48O(4) that shoreline master programs require a level of critical area protection at least equal to the local jurisdiction's Critical Areas Ordinance does not demand equal buffers be applied, simply equal protection. Nowhere in any statute or guideline does it mandate buffers as the propriety or sole method of protection. RCW 90.58.100 (1)(a) requires the preparation of Master programs to "utilize a systematic interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts. " The focus of the draft SMP in achieving no net loss has been totally fixated on buffers and the natural science supporting them. This is a IJOlicv decision, not a le1!al requirement., and it ignores the comprehensive intent of RCW 90..58.020. The science that accompanies what is perceived to be necessary for fixed-width buffers should be advisory and subordinate to the overall policy that achieves the goals of 90.58 in its entirety. The science should never dictate the policy, which is what has happened with the SMP. It is unfortunate that the science is increasingly manipulated to drive what is really policy advocacy. As Chairman Downey stated at the Sunshine Forum, the goal of the science is to protect the ecological functions of the shoreline. The vital question then becomes, protect from what? Any new scientific information is meaningless until it is measured in the context of the circumstances it is applied to. The local conditions and development patterns characteristic of Jefferson are much different than Whatcom or Pierce or King, yet the science concludes ISO foot buffers are equally applicable. This makes no sense, and in no way relates to the kind of cause and effect relationship dependable science ought to rely on and which the courts are increasingly demanding (CAPR v. Sims). Any scientific analysis that applies a blanket buffer-width regardless of impacting conditions is advocating a value system as much as a scientific one. The science used to support the Finlll Shoreline Inventory and ChartICterization Report RetlCh Inventory and AnIIlysis largely reference three studies; MaylPeterson 2003, Correa 2002, and Pentilla 2000. (I found about eight other lesser cited studies. Other major studies used to support scientific justification for large buffers (Knutson and Naef, 1997, WDWF) are prefaced with the disclaimer their conclusions are general in nature). While these assess the ecological conditions and functions necessary to support a healthy shoreline found in Jefferson, they do not address the corresponding development patterns and intensities that are the ultimate focal point of the new proposed regulation. The Finlll Shoreline Report is devoted almost exclusively to shoreline environmental conditions and practically ignores the requirements in WAC 173-26-201(3) to conduct an inventory of existing structures. Analysis of existing land-use patterns is limited to general zoning descriptions. The Cumulative Impact AnIIlysis (CIA) is similarly short on specific information about the levels of development in .Jefferson that threaten shoreline ecological functions. There are even intimations that a future threat is the conversion of agriculture to residential subdivisions or commercial uses. Anyone on the Planning Commission, DeD staff, or elected decision-maker in .Jefferson is aware there are multiple checks and balances, not to mention state law, that make these scenarioswunlikely. ~,~~ addresses t~~ ~,.rq,,9.~~uture poten~elopment pressures, "t~lnly common~'in~licaton~such as popubition increases and economic opportunity, neither of which is evaluated in detail. The CIA formula for potential sub-division of parcels is Dot very realistic iD the face of our Comprehensive Plan policies and zoning restrictions. Also not considered in evaluating future threats to the shoreline environment are other regulatory programs such as the DOE Instream Flow Rule (ISF), which presently proPOSeS to limit water use in county watersheds and even a defacto cap on future development in the Chimacum basin. This is significant as part of the Shoreline Report is an analysis of connective ecosystem-wide processes. Never once was the ISF discussed in the context of future development threats that needed to be regulated against. Already stated in my 1/21 comments at the first public hearing, even the environmental data in the Shoreline Report is admittedly general in nature and does not include field verification. At one of the last PC draft review meetings, it was illuminating to hear DCD staff describe a "data cut-off point," which appeared to occur in 2006. This resulted in some inaccurate shoreline designations and also begs the question of whether the baseline for the existing shoreline condition isn't retroactive and not retlective of current conditions by which aU future development will be measured. New scientific evidence cannot exist in a vacuum. Absent any substantive evidence that the current buffers had failed to protect against development on 70% of the parcels on .Jefferson shorelines, the draft SMP largely falls back on the precautionary principle in defense of perceived future harm. (Unexplained is how development on the remaining 30% of the shoreline is going to significantly vary from historic trends that have not caused "significant adverse impacts. "). Reliance upon the precautionary principle is not a legal requirement but a policy decision. It is certainly not science-based one, and if used to implement excessive buffers could be an unjustified departure from BAS. Even when used as a policy directive, the precautionary principle needs to be based on "reasonably foreseeable" impacts as they are likely to occur in .Jefferson and not based on anecdotal threats and damage occurring elsewhere. The precautionary principle is generally invoked in the absence of scientific certainty, or data gaps in general. Advocates of 158 foot buffers, however, are extremely confident in the certainty of the science supporting them. In the ease of the SMP, the uncertainly seems more directed toward measuring future impacts, but DCD and the PC have multiple resources and data to draw upon in determining with reasonable certainty how the remaining shoreline will be built up. If there is any uncertainty in how future development pressures might affect the shorelines, our comprehensive planning process has failed. There is so much information, in fact, on our existing development patterns and future capabilities for growth that one wonders whether it is being conveniently ignored because it contradicts theoeed for huge buffers. The Planning Commission would do well to consider recommending minimum buffer widths relative to those that have already protected .Jefferson shorelines through the bulk of the growth "boom" of the 1990's and early 2000's. No direct evidence has been presented that development of the remaining 30% of the shore6ne will exponentially impact the shorelines beyond historic trends. Provisions to increase buffer widths on a site-specific basis as warranted to avoid adverse impacts would not only be enlightened public policy but would be consistent to recent court decisions. THERE IS NO REQUIREMENT IN THE RCW OR THE WAC FOR ISO BUFFERS OR ANYTHING CLOSE TO IT. THIS IS A POLICY DECISION, PURE AND SIMPLE, THAT UNNECESSARILY CONFLICTS WITH THE RIGHTS OF HOMEOWNERS TO USE AND EN.JOY THEIR PROPERTY IN A RESPONSmLE MANNER, WITH NO CORRESPONDING ECOLOGICAL BENEFIT. Another major policy decision that exceeds the requirements of the RCW and WAC is the misapplication of the Natural and Conservancy Shoreline Environmental Designations. The law simply requires the county to assign shoreline designations consistent with criteria io WAC 173-26-211. As in any statute, there is a fairly wide range of interpretation of the criteria. Even within that range, however, it is difficult to conceive the guidelines intended for nearly half of any jurisdictional shoreline to be designated Natural. The purPOSe of the Natural designation is to "protect those shoreline areas that are relatively free of human influence or that include intact or minimally degraded shoreline functions intolerant of hUIIUIII use." (emphasis added). There is a distinct contradictioo in the argument that on one hand human development is significantly disturbing the shoreline on and on the other despite their presence nearly half the shoreline remains ecologically intact. The Natural designation is intended to be used selectively and discriminately. AU credibility in the integrity of the Natural designation was lost when the Discovery Bay segment of reach ill was deemed Natural. If that section can be, any reach could be justified to be Natural. The Planning Commission's reliance on the designation criteria in Chapter Four of the draft over that found in WAC 173-26-211 results in evaluatiDg shoreline reaches with invented criteria. There is no requirement in the WAC that a shoreline reach have a characteristic that "has the potential to return to natural conditions with minimal or no restoration activity," yet on numerous occasions that criteria was used to justify a Datural designation. The mere presence of human activity aDd development does not automatically equate to harm. Natural designations should be defended in the context of whether they are "unable to support new developmeDt or uses without significant adverse impacts to ecological functions," and exactly what aUowed uses or zoning standards justify a Natural SED. DESIGNATING NEARLY HALF THE SHORELINE AS "NATURAL" OFFSETS ALL THE CONSCIENTIOUS WORK THE PLANNING COMMISSION DID TO REDUCE REQUIREMENTS FOR CONDffiONAL USE PERMITS THROUGHOUT THE DRAFf. UNDER THIS RECOMMENDATION, NEARLY HALF OUR SHORELINES ARE SUBJECT TO DOE PERMIT APPROVAL, RESULTING IN COSTLY AND UNNECESSARY PERMIT DELAYS, WITHOUT ANY PROVEN BENEFIT THAT COULD OTHERWISE BE GAINED BY A CONSERVANCY DESIGNATION. AGAIN, THIS IS A POLICY DECISION, NOT A RCW AND WAC REQUIREMENT. The Conservancy designation was also overused. PlanDing Commission review of reaches with this designation rarely used the main designation criteria - providing for sustained use of resource lands - concentrating rather on criteria not included in WAC 173-26-211 ("The shoreline is a good candidate for restoration"). Entire reaches characterized by rural residential development, notably the east side of Marrowstone Island, were designated Conservancy, heightening the permit review process for single-family related shoreline uses (i.e. boating facilities), when 173-26-211(f)(ii)(A) allows the establish of "two or more different 'shoreline residential' environments to accommodate different shoreline densities or conditions." This provision is tailor-made for .Jefferson County's unique, low density rural residential land-use character and would have reduced permit complexity without endangering the shoreline ecology. DCD staff and the Shoreline Advisoryffechnical Committee had "an opportunity" to use the guidelines in a manner that benefited rural citizens but chose not to, instead inventing a designation (priority Aquatic) not even mentioued in 173-26-211. This additional designation is overkill considering the mYriad layers of protection already in place by existing and proPOSed changes in shoreline regulation. This is a prime example where time after time inordinate atteution to ecology, without demonstrated benefit, comes at the expense of SMA-mandated balance of preferred uses. THE RCW AND WAC GUIDELINES DO NOT REQUIRE NEARLY 700/8 OF THE SHORELINE TO BE DESIGNATED NATURAL AND CONSERVANCY. THE OVERWHELMING SHORELINE LAND-USE DESIGNATION IS RURAL RESIDENTIAL, YET ONLY 21% IS DESIGNATED AS SUCH. Other important consequences of the draft that exceed RCW and WAC guidelines are restrictions on permit conditions placed on beach access structures and vegetation removal standards in Article 6 that control landscaping and pruning over the entire parcel, not just in the buffers. Another significant consequence is the number of parcels that will become non-eonforming as a result of the new buffer standards. DCD staff contends only 12% of shoreline parcels are affected, but I don't know from where this number is derived as they have been unable to tell us how many develoPed parcels there are within each shoreline reach, period. Also unknown is how many homes are included in that 12%. The 12% could be part of the most densely built segments of the shoreline. Staff also argues that only 3% of shoreline acreage will be affected by non-eonforming homes. If that is true, and if a large percentage of homes are in fact located within the 12% of the shoreline staff maintains will become non-conforming, then only 3% of our shoreline is developed to any degree of intensity! THE REAL NEGATIVE AFFECT ON CITIZENS WHOSE HOMES WILL BECOME NON-CONFORMING WILL BE THE IMPACT ON THE AVAILABILITY OF INSURANCE AND FINANCING. SOME WASHINGTON COURT DECISIONS (JEFFERSON COUNTY v. SEAITLE YACHT CLUB) HAVE DETERMINED NON- CONFORMING USES ARE TO BE RESTRICTD AND EVENTUALLY PHASED OUT. The recent State Supreme Court decision denYing reconsideration of the AlUlCortes v. Fllturewise case should be addressed in detail before a final recommendation is forwarded to the BoCC. An interesting question is whether, under Anacortes, the County is allowed to adopt shoreline regulations into its CAO. Will inCOrPOrating the CAO, even by reference, into the SMPre-open it for legal examination? The CAPR v. Sims decision could be even more influential in determining how the SMP will stand up to any legal challenges. JEFFERSON COUNTY IS NOT REQUIRED BY LAW TO EXPAND ITS SHORELINE REGULATORY SYSTEM TO THE DEGREE THAT IT HAS. THIS IS A CADILLAC WHEN A CHEVY WOULD DO JUST AS WELL IN A CASH-STRAPPED COUNTY. THE GUlDLEINES OF WAC 173-26 (176-241) CAN STILL BE MET WITH SMALLER BUFFERS AND SHORELINE ENVIRONMENTAL DESIGNATIONS THAT REFLECT THE TRUE NATURE OF OUR UNIQUE LOCAL CIRCUMSTANCES. Create a Final shoreline Master pl'02r8m that works for Jefferson County & SuPPOrt and reflect >>CD procedural requirements. Permittin2 processes. etc.: The Planning Commission is to be commended for attempting to make this SMP easier to understand and eliminate unneeded language. This was almost an impossible task, considering the size and scope of the original document. I'm not sure under any circumstances this ambitious SMP could be anything but intimidating to the average permit applicant. The Planning Commission spent 15 weeks trying to decipher the content of the SMP. How will the average applicant, without any background in reading and understanding plans and codes - and all the techno-speak that comes with it that insiders take for granted - make any sense of it in a timely manner? Not to mention everything else a homeowner has on their mind when building or re-modeling a home. It is a literal mine-field, trying to determine what they can or cannot do. It is also little relief for an applicant to clearly understand the document only to discover use of their property is being severely restricted. The best way for the it to be made user-friendly is to treat permit applicants as equal partners in the SMP equation and not as potential threats or as somehow seeking to take advantage by simply building a home. The expansive scope of this SMP is Exhibit A of the 2005 Latimore Report that examined obstacles in achieving timely permitting processes. A major conclusion reached by Latimore was contemporary permitting related to comprehensive planning processes w becoming incomprehensible to the typical applicant, resulting in mistakes that extended time necessary for issuing permits. It is ironic that the County has spent at least $25,000 on Latimore while continuing to enable the very expansive regulatory schemes that brought about an audit in the first place. THIS SMP IS STILL TO BIG, DIFFICULT TO UNDERSTAND, AND WILL LIKELY LEAD TO MORE PERMIT DELAYS AND EXPENSE WlmOUT ANY CORRESPONDING ENVIRONMENTAL BENEFIT. Repeating an earlier point, while the Planning Commission made a conscious effort to keep permitting decisions local by reducing requirements for conditional-use permits, the liberal use of the Natural SED exposes 410A. of our shoreline to DOE oversight, without any ecological benefit. This places property rights on the back burner and reduces flexibility for the applicant. It also renders moot the exemption for single-family homes in Article 9.3.8. While the SMP contains options for relief from standard buffers, the process will be expensive and time-consuming for the permit applicant. As it currently stands, DCD is already having difficulty with its workload and cost effectiveness, evidenced by fee increases and lay-offs. The administration of a complex regulatory scheme like the SMP will cause further delays, making the feasibility of buffer options untenable for homeowners or prospective buyers. Requirements for variances and conditional use permits need DOE approval, creating more uncertainty and delay. Much of this can be avoided, and flexibility restored, by adjusting buffer widths and Shoreline Designations. A major improvement in the evolving draft SMP would be the elimination of a shoreline variance for the CASP. This regulatory alternative should be highly encouraged, as it is the only environmental management practice that requires accountable monitoring, providing the only true measure of effectiveness. The burden of proof (Article 10.8) continues to be placed on the applicant throughout the SMP to demonstrate no harm is occurring as a result of a proposed development permit. This contradicts a time honored judicial principle of presumption of innocence unless proven guilty. In some cases, such as determining the cumulative impacts related to an individual permit, the County is asking the applicant to supply information the County itself is unable to produce. (This on top of having to comply with 150 foot buffers). Our Constitution allows for the appropriate use of police power to maintain public health and safety, including a clean environment. Article 10.8 turns the tables, forcing citizen's into the role taxpayers would otherwise expect government employees to perform. And to add insult to injury, the citizen is expected to pay for the privilege! Certainly, the applicant is responsible for demonstrating their proposal is not a threat to public health and safety. But to have to comply with all criteria throughout the Program is excessive. At a minimum, eliminate the provision in Article 6.1.C.2 that requires the applicant to prepare special reports as necessary to identify cumulative impacts. This is onerous and could be incredibly expensive. Just curious, exactly what is the standard for cumulative impacts on aesthetics and "other shoreline attributes." (And what are "other shoreline attributes?"). Jim Hagen 150 Maple Dr. Cape George ,w,7fu ref} JJ~ ~ b {1Wl( /G 71e-c.ucvJ5h; r ':otJ-r.)"f,aY'