The original Critical Area Ordinance was adopted by Kitsap County in 2005. Let’s look at what we have learned since then
The sole purpose of the CAO must be protect and preserve those areas critical to the existence of wildlife and human habitation in Kitsap County. If that is the case then the following facts are pertinent to the ongoing discussion.
- No Baseline. There has never been a “baseline” of existing conditions established for “critical areas” in Kitsap County to support determination of effectiveness of the controls established in 2005. This is essential if restrictions like “no net loss” are to be imposed by the CAO.
- No Monitoring. There has been no monitoring or ongoing analysis of identified critical areas to determine if the controls established in 2005 are effective or not.
- No Resident Species. Based on the DOE listings there are no terrestrial species resident in Kitsap County that are threatened or endangered or for which special controls must be established. Based on a NOAA study released in 2005 there are no streams or creeks in eastern Kitsap that are the indigenous (natural) home for threatened or endangered salmonid species. The revised CAO does not identify any species of interest in Kitsap County.
- 4. No Inventory. Kitsap County does not have a reasonable inventory of areas that might be considered “critical” under the 2005 ordinance or this revision. The County has no clear understanding of the actual areas they are designating as “critical” and thus no ability to determine the actual impact of the Ordinance.
- Limited Application. The controls on “critical areas’ are imposed only if a building permit application is submitted. All other similar areas in the County are not controlled.
- Disproportionate Cost. The cost of implementing the CAO falls to the individual property owner/developer because they are required to effectively prove that no critical areas exist on the land they wish to develop. While the property owner tries to prove a negative the County has the final decision and is not bound by the various studies and plans they require.
- Ignored Legal Precedents and Findings. GMHB finding and various court cases have been ignored. Consideration and inclusion of those finding would significantly reduce the scope and impact of the CAO. Without inclusion of those findings, individual property owners will be required to undertake litigation on matters already determined.
- Nollan v. California /Coastal Commission (1987)and Dolan v. City of Tigard (1994): US Supreme Court There must be a direct relationship (nexus and rough proportionality) between the environmental assault and the regulation.
- Swinomish Indian Tribal Community s. Western Washington Growth Management Hearings Board (2007): Benchmarks are required, naming species and specific locations where they exist that the county is trying to protect.
- McCready v. City of Seattle (1994), Washington Supreme Court right of entry requires warrant
- D. Lucas v. South Carolina Coastal Commission (1992), US Supreme Court: prohibits takings via regulation that disallow construction enjoyed by surrounding properties. (Throughout the county, pre-existing homes are built in what are now considered “buffers”.)
- E. S. Army Corps of Engineers v. Hawkes Co. et.al. (2016) US Supreme Court precludes off-site compensatory mitigation requirement and Hearing Examiner is precluded from making the “final decision”
- Koontz v. St. Johns River Water Management District (2013)US Supreme Court: precludes off-site mitigation and “mitigation banks” (mitigation funds) and buffer averaging, all of which are found in the CAO. Buffer averaging also violates both Nolan and Dolan.
8. Denied Public Process. The revision to the CAO was undertaken without actual participation of the public and specifically property owners who would be most impacted by the ordinance. Although numerous inputs have been made by citizens to the March 7 draft revision, there has been no further update draft available for public review. Most of the public comments have been either ignored or determined to be of no consequence by DCD without discussion or debate. Because DCD is delegated the authority to implement and enforce the Ordinance, they should not be the sole arbiter of content or scope.
These are the Facts – Now it is up to you to decide if you want this as your law