Testimony of William Palmer to the Kitsap County Board of Commissioners

Honorable Commissioners:

It is well known that I have been involved in Comprehensive Land Use Planning and permit processing of all kinds in Kitsap County since 1978. What may be apparent only to a few is my experience in Shoreline Master Program planning (SMP) and program administration.

Regarding this experience, I am one of the few people in Kitsap County who, prior to this past two years, had any experience at all drafting a Shoreline Master Program. In the 1970s, I wrote Mukilteo’s SMP, participated in the development of Snohomish County’s SMP, and participated in the development of aquaculture amendments to Island County’s SMP (a 1980s project). 

With regard to SMP administration, I had that responsibility in both Kitsap County and the City of Bremerton. In Snohomish County it was a shared responsibility.

Couple that experience with consultant assistance I have provided in obtaining Shoreline Substantial Development Permits (SSDPs) and Shoreline Conditional Use Permits (SCUPs) and I have seen both aspects of the Shoreline Management Act implementation.

Permit processing on behalf of private sector clients has brought me exposure to the regulations of the Shoreline Management Act and those of the following jurisdictions: Kitsap, Mason and Pierce Counties and in several cities, Port Orchard, Poulsbo, Bremerton, Bainbridge Island and Gig Harbor.

Because of my experience, I have perhaps more reason than most to find that this SMP is a revamp of the 1999 SMP that goes far beyond the SMP update guidelines adopted by the State Department of Ecology. That is cause enough for the Proposed SMP to be sent back to the drawing boards.

Rather than do the analytic work to assess whether or not the existing regulations are effective in achieving the new “not net loss” standard, Kitsap County went “whole hog” to create an ordinance and thereby regulations for which there is no demonstrable need.

That statement can be made without reservation because no such assessment of the effectiveness of the existing regulations was made, in spite of the fact I specifically criticized the DCD staff for its failure to perform such analysis.

On this basis alone the proposed SMP should be rejected, but there are other reasons as well. In fact there are numerous reasons the Commissioners should not adopt the proposed SMP.

However, the substance of this letter highlights the inequity of the proposed regulations as they apply to a specific lot in platted property that is substantially already developed. Also, this analysis is presented to demonstrate that the kind of regulatory measures found in this SMP are discriminatory and punitive in application to individual property owners.

It is clear that Kitsap County and many other jurisdictions are applying regulations to a shoreline environment on the basis of what someone says is necessary to protect its inherent attributes rather than on any substantive hard core science based on actual studies to determine what does and does not cause shoreline environmental degradation.

Lacking that core science data, regulations are crafted that mimic what other jurisdictions employ from the east coast, the great lakes area, and Florida. Sad to say none of that “so-called” science can substitute for a disciplined analysis of local conditions.

Worse yet, and there is certain evidence Kitsap County’s proposed SMP is no exception, there is a rallying cry underlying the measures found in this ordinance that says in effect the “sky has fallen” and our beaches, Intertidal areas and our upland shoreline environments are all polluted and must somehow be restored to that supposed pristine condition existent before those awful white Caucasians came to occupy the land.

Clearly, enough testimony has been presented during the course of the Shoreline Advisory Taskforce’s work and the Planning Commission’s deliberations to document the fact there is no credible science (based on actual studies of Kitsap County’s shorelines) to support any of the proposed new regulations.

So, because of a “so-called” mandate to satisfy “opinion” and “persuasions” held by personnel in the State Department of Ecology, Kitsap County DCD staff has crafted a SMP with a “one-size-fits-all” approach to regulation.

Even though DCD staff might argue that the “variable buffer” allowances found in Section 5.5.2 permit individual treatment in the permitting process, the fact is there is a buffer requirement that causes all property owners to comply with a set rule with no demonstration on the part of the regulator, that a buffer (especially one with native vegetation) provides any real role in the functions and values of a shoreline environment.

Regarding that last statement, this letter, together with the attachments, presents clear and certain evidence that development in all shoreline environments is not treated individually, even though an actual analysis of existing conditions should have led Kitsap County to apply different standards of development to certain areas. That did not happen.

Instead, there are among other instances subdivisions that abut saltwater or fresh water shorelines in such locations as Driftwood Keyes, Kingston, Indianoloa (to include the sand spit), Suquamish, Keyport, Chico, Earlands Point, Rocky Point, Kitsap Lake, Annapolis and Long Lake to highlight a few, that all have the same buffer requirement of 85 feet with an allowance that if certain conditions are met (including buffer enhancement and mitigation) that standard can be reduced to 50 feet.

That is a prima facie case documenting a “one-size-fits-all” approach to regulation.

“One-size-fits-all” regulations may be easier to construct, but they represent a penalty to individual property owners. What kind of a penalty? Both financial and unequal treatments under the law are the two most readily discernable penalties, but a third is of a discrimination nature and a fourth is loss of property rights.

If a regulation in its most direct application has the effect of removing the right of property use, then there is clear evidence the property has been taken for some perceived public benefit. No legislative jurisdiction wants to admit that regulations represent a “taking” of property so they camouflage their intent by “allowing property owners to apply for a variance.” In this instance the legislators are in effect discriminating against the property owner who did not develop his property as others in the subdivision have.

Variances may represent a conscience soothing pill for the legislators for actually taking away a right of property use (constitutionally given by both the federal and state governments) but such application processes are nothing but a headache and nightmare for the property owner.

It costs him or her money and lost time in the permit process, just to make application and becomes a nightmare when the jurisdiction uses its power of state to impose “conditions of approval.”

First of all there is no guarantee an applicant can satisfy the variance criteria set forth in the regulations and even if the criteria can be met, the property owner is saddled with restrictions of use that come to bear in a subsequent permit process or in how he or she is “conditioned” to enjoy the property.

To make matters worse, the property owner / applicant has a time certain to go forward with his or her intended use. Failure to satisfy those “conditions of approval” within the prescribed time limit is cause for the granted variance to be withdrawn (in legislative parlance its “expire”). If the applicant can financially afford to do so, he or she then must re-apply for the variance once granted.

The real impacts on property owners are seldom if ever appreciated by legislators, because once they pass laws their job is done and the consequences of their actions on individual property owners are seldom seen. That fact is manifest in Kitsap County in the way the ordinances Commissioners pass are implemented in the bureaucratic malaise such ordinances create.

First and foremost Kitsap County seldom if ever establishes ordinance implementation performance reviews to even check to see if the “public good” objectives are being met and how their ordinances impact individuals.

Kitsap County is not alone in its failure to conduct ordinance performance reviews, the State of Washington and indeed our Federal Government share the same guilt. All levels of government share another common fault as well; they conduct no prior or even follow-up assessment of the cost of regulation implementation by their own agencies.

Even if there is some recognition of budget costs of their line departments they make no attempt to understand, let alone analyze, the cost of code enforcement. The legislative salvo is manifest in their “application fee structure.”

The real “elephant in the room” legislators do not want to face is that if something, i.e. goal, ideal or program represents the “public good,” then it should be the citizens of the county collectively that pays for the implementation of the laws they pass not individual property owners. That means the citizens of the county through the aegis of their taxes should pay for all the code implementation costs.

Contrary to what should be, Kitsap County and the State Department of Ecology is equally a party to this indictment, mistakenly believe that individuals must pay to regain their constitutional rights to use their property as they see fit. As much as possible Kitsap County passes almost the entire burden of code implementation / enforcement costs on to the shoulders of the applicant.

So, in a fell swoop of a pen, a regulation is crafted and an exception is made whereby a property owner can gain relief from the inappropriateness of that regulation to his or her property through the variance or conditional use permit process and he or she is now forced to become an “applicant” and must pay (actually pay exorbitant amounts of money) to use his or her property in the same manner his or her neighbor to the left or right could do so for free.

THERE ARE ONLY TWO CONCLUSIONS TO BE DRAWN BY THE PROPERTY OWNER – EITHER HIS OR HER PROPERTY HAS BEEN “TAKEN” BY KITSAP COUNTY IN THIS CASE THROUGH THE AEGIS OF THE SHORELINE MASTER PROGRAM TO SATISFY A “PUBLIC BENEFIT” OR THAT HE OR SHE IS BEING PUNISHED (FINANCIALLY AND BY CONDITIONS OF APPROVAL) FOR THE “PRIVILEGE” OF USING HIS PROPERTY IN A MANNER COMMON TO HIS NEIGHBORS. IF IT IS THE FORMER, THEN THE COUNTY OWES HIM OR HER COMPENSATION FOR THE FAIR MARKET VALUE OF THE PROPERTY FOR PROPERTY TAKEN FOR PUBLIC USE. IF IT IS THE LATTER THEN KITSAP COUNTY HAS PERHAPS MADE IT POSSIBLE FOR THE PROPERTY OWNER TO SEEK RELIEF IN COURT.

The case example presented here is demonstrative of the foregoing problems and inequities with “one-size-fits-all” regulations. The particular issue relative to the SMP’s environment regulations is manifest in the buffer standards found in Section 5 of the proposed ordinance.

If more individualized analysis had been made of those above mentioned subdivided shoreline areas is would be readily apparent just how property owners in those subdivision are being penalized by the proposed SMP and indeed by the previously adopted CAO.

In this instance the subdivision is the Plat of Indian Bay. The subdivision was created in the 1960s prior to the establishment of Zoning in Kitsap County (1969), prior to the advent of the Shoreline Management Act (enacted into law in 1971), prior to the adoption of building code standards (the UBC was adopted in 1975), prior to the adoption of Kitsap County’s Shoreline Master Program (1977 and as amended in 1999) and long before the Growth Management Act (1990 & 1991) and of course the adoption of Kitsap County’s Critical Areas Ordinance (1995, 1998 & 2005). Many of the subdivisions highlighted above also predate all of these ordinances.

Here are the pertinent facts regarding this property:

1. The proposed Shoreline Environment Designation is Shoreline Residential (also true of the other subdivided areas mentioned above);

2. All lots in the subdivision were sized to accommodate single-family residences that could meet the then required Health District standards for property served by a public or community water system. In this case it is the latter;

3. The majority of the existing houses found in this subdivision were constructed in the 1980s and early 1990s in compliance with the 1983 Zoning Ordinance setback standards;

4. Shore armoring in the form of rock bulkheads were installed along the shoreline protecting most of the lots in the late 1970s and in the 1980s. Some of that shore armoring activity took place in the early to mid 1990s;

5. The Lot (127) is vacant as witnessed by the fact there are no structure on it;

6. The lot is approximately the same size as most other lots in the Plat of Indian Bay – about 6,600 S.F. of building area between the road and the Ordinary High Water Mark;

7. Vegetation on the lot is primarily a grass lawn with defined planting areas for flowers, shrubs and specimen trees;

8. The topography of the buildable area of the lot is relatively flat with a three to four foot elevation above the beach and Intertidal zone area;

9. Lot 127 is situated between two developed lots containing homes of substantial size setback 25 feet (minimum) from William Rogers Road and approximately 15 – 18 feet from the Ordinary High Water mark (in this case the location of the rock bulkhead);

10. The lot is protected by a rock bulkhead ranging in height above the beach from three – four feet. The bulkhead extends across the face of Lots 126, 127 and 128. This same bulkhead has had the voids between the rocks and to some extent the face of the rocks filled with gunnite concrete thereby creating a somewhat smooth bulkhead face;

11. There is a walkway along the bulkhead extending from Lot 126 to Lot 128 approximately 15 feet in width comprised of concrete slab, pre-cast concrete blocks and gravel;

12. The beach environment is primarily gravel with fine sand in the upper 15 -20 feet of the Intertidal zone. Also evident on the beach is “woody debris” that moves with high tides and rests on the beach at lower tides; and

13. While there are some exceptions the conditions of Lot 127 are not materially different from any other lots in this plat found on the south side of the sand spit and abutting Port Madison Bay. Most all of the other lots some 26 (of a similar size) are developed. Lots 122 and 127 are the exceptions.

Indian_Bay_Lot_127-Graphics-10-18-12-1

The attached graphic exhibits, pages 1/11 – 11/11 depict the above described conditions and show how Lot 127 might be developed with a new single-family residence.

Development considerations affecting this Lot 127 if the proposed regulations contained in the October 11, 2012 Draft of the SMP is adopted without substantive changes:

A.) Shoreline Environment Designation is Shoreline Residential. The existing SMP Designation for the Plat of Indian Bay is Semi-Rural;

B.) Owner occupied single-family residences are an “exempt” use so defined by RCW 90.58 and WAC 173-27-040, meaning that unless otherwise restricted a Shoreline Substantial Development Permit or SDP is not required to place such a structure on a lot or parcel of property. It is true also those single-family residences were an “exempt” use from the inception of the Shoreline Management Act in 1971;

C.) Single-Family Residences in a Shoreline Residential Environment may only be placed on a lot like Lot 127 if it complies with Zoning Ordinance and SMP setback and buffer requirements. In this case there is a 25 foot setback from William Rogers Road, side yard setbacks of five (5) feet from the west and east property line and a 85 foot buffer and 15 foot buffer setback from the Ordinary High Water Mark (OHWM), which in this case is the location of the rock bulkhead. Allowance in the variable buffer criteria found in Sections 5.5.2.B and 5.5.3 makes it possible to consider a 42.5’ foot buffer for this property. If the 42.5’ buffer is not enough to allow the construction of a house, then it can be further reduced with Shoreline Variance approval by the County’s Hearing Examiner. Such Variance will be required to place a single-family residence on Lot 127. It is noted that when most of the homes were built on the sand spit in this Plat there was no setback or buffer requirement in the County’s 1977 SMP. There was a rear yard Zoning Ordinance setback (in this case as measured from the OHWM) of 15 feet. It was only in 1999 and in the years following that a 50 – 100 foot buffer was imposed in Plats like Indian Bay. The buffer requirement came into the SMP with the adoption of the 1998/1999 Critical Areas Ordinance (CAO) and was re-established in 2005 when the CAO was updated. Beyond the buffer distance is another 15 foot setback area where structures and other impervious surface areas such as driveways may be placed. Just as it is true that the required buffer must be reduced below 42.5 feet, a buffer setback cannot be imposed and that is another issue in a Shoreline Variance application;

D.) Health District septic system requirements require drain fields to be located as far from the OHWM as possible. Their standard is 100 feet, but since that is not achievable on lots in the Plat of Indian Bay septic systems have to be located in the “front yard” closest to William Rogers Road. Between the “buffer requirement” of the SMP and for that matter the CAO even with the SMP buffer reduction possibilities found in 5.2.2 and 5.2.3 there is no room for a house;

E.) The structure setbacks for the homes on either side of Lot 127 are 13 feet and 15.5 feet as measured from the closest portion of the structure to the top of the rock bulkhead, i.e. the OHWM. This setback distance is common for many, if not most of the existing homes built on both sides of the sand spit. Even where the house might sit back further a deck or concrete patio can be found between the OHWM and the house. Based on the provisions of the proposed SMP and the existing CAO, decks and patios are not allowed in prescribed buffers;

F.) The proposed house shown on Page 3 of 11 of the attached exhibits shows a home of similar size (house foot print) as that of others found in the Plat of Indian Bay and a building setback distance (with a deck) from the OHWM in an equitable position on Lot 127 and that common to where other homes are located in the subdivision. Also it should be noted that the proposed structure location respects the “view blockage” provisions of SMP Section 5.8;

G.) There is no evidence provided by Kitsap County, that the “values and functions” of the shoreline environment have suffered any deleterious impacts from either the installation of the prior shoreline armoring activity or by the development of any of the lots of the Plat of Indian Bay for “shoreline exempt” uses. Also, Kitsap County has no evidence to prove that single-family residences and accessory structures constructed behind a bulkhead without a buffer cause a “net loss” in the values and functions of this Residential Shoreline Environment. It is instructive to note that a “no net loss” assessment starts from today’s conditions not from some time previous to the development of the Plat of Indian Bay or even form the time the rock bulkhead was installed. What is evident in the pictorial exhibits attached is that the beach habitat waterward of the bulkhead has sand, gravel and woody debris typical of most of the beaches exposed to the kind of tidal action found in Port Madison Bay; and

H.) Because of the imposition of “one-size-fits-all” standards in the County’s Critical Areas Ordinance, the property owner of Lot 127 will have to pursue a Critical Areas Ordinance Variance to establish a home on this lot. As a note of interest I have prepared the application material and represented my client to pursue CAO Variances for the establishment of homes on two other lots in this same subdivision – Lot 13 and Lot 77. As is true of Lot 127, neither Lot 13 or 77 had manifest environmental attributes that would allow the applicant to satisfy the “hardship” exception requirements for granting of a variance. He could only argue on the basis of the “equity” standard in the variance criteria. Therefore his applications for a reduced buffer requirement was granted on that criteria alone. In layman’s terms that mean his buffer and buffer setback requirement could be reduced from 50 feet to 15 feet because of how the adjoining properties had been developed. On Lot 13 his actual buffer/setback was/is closer to 35 feet. Regardless of whether the CAO or the proposed SMP provisions apply, any variance the property owner of Lot 127 might pursue to place a house on his property will be judged by the “equity” variance standard. Any greater setback distance, as measured from the top of bulkhead, than what is true of the adjoining structures will be either a miscarriage of rule enforcement or a decision made by the property owner.

The foregoing are the development considerations for Lot 127 if the property owner might choose to build a home on that site. At this juncture the property owner has not elected to go forward with a Variance application. Never-the-less it is instructive to examine what he or she will face if such an application is made:

Time delays – no Variance Application is process by Kitsap County’s DCD in less than six months time and often it can take as long as a year or more. Land Use Procedures (found in KCC 21.04) and State Law stipulate an allowance for 106 – 120 days for a decision to be made by the Hearing Examiner. That assumes there are no requests for additional information, notices go out on time, nobody takes accrued vacation and adjoining neighbors do not plague the DCD for information in the permit review process.

Even granting the possibility that in 106 days a public hearing is held by the Hearing Examiner, there is a two-week delay for the written decision and a 21 day appeal period of a Land Use Petition Act filing in Superior Court. If the applicant waits that period out before proceeding with his or her plans that is a 141 days minimum (almost five (5) months) in the application / decision making process on the Variance application. But that is not the end of it. That is the minimum amount of time that the applicant had to wait to get his or her decision on the Critical Areas Ordinance Variance.

Because a Shoreline Variance Application will be a necessity with the passage of the proposed ordinance, another State application process is triggered through the Washington State Department of Fish and Wildlife. This permit is called a Hydraulics Permit. Ostensibly such permits are required whenever a development is proposed with in a stream, freshwater or saltwater body, but also has been construed to apply to development proposals within buffer areas. Hydraulics Permit Application (HPA) review are usually accomplished by Fish and Wildlife Department staff within thirty (30) days of the date the application is received. Thus this application review process could occur within the 106 day minimum time period. Regardless of the review time, that agency does now charge a fee (relatively small by Kitsap County standards) for their review and approval.

Now with the new provisions of the October 11, 2012 Draft of the SMP, the “Shoreline Variance” will have an additional 30 day review by the State Department of Ecology added on to the decision time of the Hearing Examiner. For sure, when all of the allotted timeframes are added the applicant is in “process” for a minimum of six months. As pointed out above “all the stars have to be in alignment” for that minimum process time to work out. Sadly, it is seldom the case.

If the Variance Applicant has immediate plans to build there is still the Building Permit process to be negotiated and that takes a minimum of two weeks and more realistically a month to two months. This same building permit process was all Lot 127’s neighbors had to wait out.

Bottom line the neighbors faced only a two-week to a month’s time delay before construction could begin. The requirements of the CAO and now the SMP force the owner of Lot 127 into a very onerous and protracted time delay to exercise his or her constitutionally guaranteed rights to use his or her property consistent (in this case) with the same rights of use enjoyed by his or her neighbors.

Time delay is certainly a discriminatory penalty the owner of Lot 127 will have to pay all because he or she did not or could not build a house on this lot at the same time other homes were built. But time in process is not his or her only penalty.

Application Fees – must be paid before the minimum six (6) processes can even begin. Lest one imagine these fees are an incidental, the facts show that these fees are no minor budget item. There are four and possibly five fees that must be paid:

a. Kitsap County’s Base Application Fee – Currently that is $ 90.00

b. The Shoreline Variance Application Fee – Currently that is $ 3,565.00

c. The Hydraulics Application Fee imposed by State Fish & Wild Life $ 150.00

d. The Critical Areas Ordinance Variance Fee – Currently that is $ 3,565.00*

Sub Total………………………………………………………………$ 7,370.00

If required because the total impervious surface area of a driveway, house and patio exceeds 2,500 square feet – then there is a Site Development Activity Permit required.

e. Residential Site Development Activity Permit Fee – Currently $ 2,430.00

Total of all possible fees…………………………………………$ 9,800.00**

* The Department of Community Development could waive this fee since the issues to be considered in processing a combined Variance application are essentially the same, but the Department is so strapped for cash this fee will be imposed as a means of getting additional revenue into the Department to offset its expenses.

** Even if the $2,430.00 fee is not required, Kitsap County’s adopted fee schedule allows the Department to impose additional hourly charge fees to cover either their costs for protracted application reviews (amazing as it may seem for their own delays) or for the cost of reviewing special documents an applicant is required to submit to facilitate the review of his or her Variance Application. Thus the minimum $7,370.00 amount may be more even if the Residential Site Development Activity Permit fee is not assessed.

Consultant assistance fees – are another expense the property owner most likely will incur. Since the County uses as its application form the Joint Aquatic Resources Permit Application Form, also know as a JARPA, it has information reporting requirements that are difficult to provide for all but the most adept property owner in tracking information and preparing graphic exhibits. In short it may be possible for the owner of Lot 127 to complete the JARPA form, the required State Environmental Policy Act (SEPA) Checklist and prepare the accompanying graphic exhibits. In most instances there will be a need for consultant assistance.

If a planner or an engineer is involved the consultant fees will range in the $4,000 – $5,000.00 amounts. If special reports are required and/or legal assistance is needed these private sector fee amounts might rise to as much as $10,000.00. Perhaps it is obvious, but the obvious should not go without mention, the County charges more and in some cases far more to review the work of private sector professionals who prepare the original paper work. The explanation lies not in how much work is performed by either the private sector consultant or that of County staff, but in how the County calculates their overhead costs. The fact is Kitsap County is having its citizen’s pay twice for the Administrative Services building the staff occupies at 619 Division Street and that is an overhead cost built into all of the County’s application fee charges.

Be that as it may, the total amount the owner of Lot 127 will pay to obtain Variance approval to build a house on his lot at a minimum will be $11,370.00. More likely the cost could be as high as $15,000.00. This cost, whether the lower or higher of the two amounts, has to be added on the expense of building the owner’s house and will be magnified by finance costs.

These are real numbers and validate the statement that the property owner has to pay a financial penalty to comply with ordinance requirements that do not in fact take into consideration individual circumstances such as those conditions manifest in platted property. The location of the subdivisions in the County was earlier identified. What is not as readily evident is that there are many “non-platted” shoreline areas that share many of the same attributes as subdivided land. Once upon a time in Kitsap County the Zoning permitted small lot creation in shoreline areas even when more interior sites had larger lot size requirements. The “one-size-fits-all” regulatory approach as applied to those segments of the shoreline creates similar problems for these property owners as discussed for the owner of Lot 127 in the Plat of Indian Bay.

This example is reason enough for the Board of County Commissioners to REJECT the proposed SMP and craft a document that gives deference to prior developed areas and properly reflects individual circumstances so that property owners are neither discriminated against nor penalized to use their property as they have a constitutionally guaranteed right to do so. Also, the Board of Commissioners need to make a serious cost/benefit assessment of whether the regulations contained with in the proposed SMP can be implemented within the fiscal limits of the biannual budget. If the proposed SMP regulations create some “public benefit” then that benefit needs to be well understood by the elected officials and once understood financed by all of the people of Kitsap County. Individual property owners who may not have built homes on their property at an earlier time should not be placed in a position to finance even a portion of the County’s responsibilities. The owner(s) of Lot 127 of the Plat of Indian Bay and others that might be required to obtain Variance Permit approval should not be penalized for ordinance implementation, for no other reason than they chose not to or could not build a house on the lot before the enactment of the SMP.

Respectfully submitted,
William M. Palmer
W.M. PALMER CONSULTANTS

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