Citizens Guide to Kitsap County Critical Area Ordinance Revision

The original Critical Area Ordinance was adopted by Kitsap County in 2005. Let’s look at what we have learned since then

CAO Facts

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.

  1. 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.
  2. 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.
  3. 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. 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.
  5. 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.
  6. 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.
  7. 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.
    1. 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.
    2. 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.
    3. McCready v. City of Seattle (1994), Washington Supreme Court right of entry requires warrant
    4. 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”.)
    5. E. S. Army Corps of Engineers v. Hawkes Co. (2016) US Supreme Court precludes off-site compensatory mitigation requirement and Hearing Examiner is precluded from making the “final decision”
    6. 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


Jun 29: Dinner Speaker Bremerton Mayor Patty Lent

Our Dinner Speaker is Mayor Patty Lent of Bremerton. Mayor Lent has worked hard to revitalize the hidden assets of the City of Bremerton.  The drab veil has been lifted by Mayor Lent and a growing changing beautiful city is starting to appear.  There is still a lot of work to do and Patty is willing to continue the hard work.  So far, her planning is successful because of her experiences in both the private sectors and public services (Kitsap County Commissioner).

Meet us for dinner at McCloud’s Grill House, 2901 Perry Ave., Bremerton, WA.,98310

Meet at 5:00 P.M. and be up-dated of proposed changes and plans for Kitsap’s largest city.  Question?  Call Jackie (360-990-1088) Bring a friend.

No RSVP required, just order your dinner, sit down and enjoy an evening of information sharing with the Mayor.

Ps Patty has thrown her hat in the RING again and is running for Mayor of Bremerton!



Commissioners to hold hearings on the Critical Areas Ordinance

(Port Orchard, WA)  The Board of County Commissioners is scheduled to hold three public hearings on the Draft Critical Areas Ordinance (CAO). These hearings follow a public review period in March, Planning Commission hearings in April/May, and Planning Commission Findings and Recommendations on June 6, 2017.

The hearings on the Critical Areas Ordinance will be on the following dates:

Tuesday, June 20, Poulsbo City Hall
(200 NW Moe Street, Poulsbo, WA 98370)- SPECIAL MEETING

  • Open House @ 4:30 PM
  • Hearing @ 5:30 PM

Wednesday, June 21, Silverdale Water District
(5300  NW Newberry Hill Road, Suite #100, Silverdale, WA 98383)- SPECIAL MEETING

  • Open House @ 9:00 AM
  • Hearing @ 10:00 AM

Monday, June 26, Commissioners Chambers, Kitsap County Administrative Building (619 Division Street, Port Orchard, WA 98466)

  • Open House @ 4:30 PM
  • Hearing @ 5:30 PM

The Kitsap County Critical Areas Ordinance is undergoing a required update under the Washington Growth Management Act.  The CAO (Kitsap County Code, Title 19), is the portion of local code which provides development standards for protecting the environment and minimizing risk to human safety. Critical Areas include:

  • Wetlands,
  • Fish and Wildlife Habitat Conservation Areas,
  • Geologically Hazardous Areas,
  • Frequently Flooded Areas, and
  • Critical Aquifer Recharge Areas.

Questions ask the County Commissioners:

  1. What are the Threatened and Endangered Species that the county is trying to protect? The county does not identify critical species.
  2. Where are the Critical Species?  The county defines Wildlife conservation areas but doesn’t designate where they are.
  3. How are we to protect them? The county does not state how they propose to protect the Critical species. Specific buffers and restrictions are not defined.
  4. The county requires costly professional surveys to identify and categorize wetlands then imposes generic buffers. It doesn’t tailor the buffer requirements to the specific wetland. Use site specific buffers.
  5. The county has no program to establish what wetland and wildlife conditions exist. Establish a baseline.
  6. The county has no monitoring program to measure the effectiveness of protective measures.
  7. The Enforcement Right of entry paragraph 100.17.065 violates state law. Comply with RCW 59.18.150 Searches by code enforcement officials for inspection  purposes.
  8. Suquamish salmon studies has identified unfiltered storm water runoff is a major factor in returning salmon die off. Support programs that identify and resolve problems rather than place passive restrictions on landowners.
  9. Who are the knowledgeable personnel that administer this program? Establish a training and accreditation program for DCD personnel.

More information is available on the County’s CAO webpage .

KAPO Presentation on the Kitsap County Critical Areas Ordinance Update

WSJ Opinion on Regulatory Taking

A Taking by Any Other Name

The Supreme Court extends its bad record on property rights.

The Supreme Court has made some large missteps on property rights in recent years (see Kelo v. City of New London) and on Friday it did it again. The Justices ruled 5-3 that adjacent parcels of land can be counted as a single piece of property, without any compensation to the owner for the change. Count that as a missed opportunity for the Court to brush back burdensome regulations that often amount to unconstitutional takings.

Under the Takings Clause of the Fifth Amendment, property may not be taken by the government for public use without just compensation. In the 1990s four Murr siblings inherited two pieces of adjacent property that their parents had purchased in the 1960s. Ten years later, when the children sought to sell one of the lots, the sale was blocked by a 1975 zoning ordinance that counted the two properties as a single parcel.

The pieces of land had been deeded and taxed separately, but that didn’t sway the majority, written by Anthony Kennedy and joined by the four liberal justices. “The governmental action was a reasonable land-use regulation,” Justice Kennedy wrote, “enacted as part of a coordinated federal, state, and local effort to preserve the river and surrounding land.” (Murr v. Wisconsin)

The right to sell a piece of property seems fundamental, but the Court offered an exhausting list of considerations that state courts may consider while deciding whether a landowner should expect two adjacent properties to be treated separately or together. Among those, Justice Kennedy offered, are “the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land.” Oh, and also the “background customs and the whole of our legal tradition.” That really clears things up. Continue reading

‘Open space’ advocates want to turn working farms into museums

Last summer, as I heard the news of Pierce County’s “disappearing farmland,” I felt mixed emotions. Farmland preservation advocates are clamoring to protect open space in the form of farmland. However, the rezoning classifications which would be implemented devalue farmland and actually hurt farmers.

I love farmland. I enjoy driving a few extra miles through farm country just to enjoy the view, and my best memories are of going on veterinary farm calls with my dad. While fully recognizing the beauty of green fields, peaceful farmhouses and sweeping open spaces, I know firsthand that farmland doesn’t exist just for the benefit of visitors.

Farming is a business. As scenic as the food growing countryside is, farmers are not running a cultural museum. Farms need to be profitable. Farmers need to make money so they can pay for land, crops, equipment, employee salaries, taxes, and earn an income for their families. If laws and regulations establish acreage targets, farmers will cease to exist and communities will be left with “open space” symbolizing once-productive farmland. Continue reading

KPTP Mtg: June 19 7PM Glenn Morgan

Glenn Morgan discusses how funding through grants impacts long term public policy and endangers your property rights.

Policy Decisions by the Court Broke Washington’s Water Law

This Legislative Memo examines the legislative and judicial history of Washington’s water access, explains the recent October 2016 court decision, Hirst v. Whatcom County, illustrates the narrow-minded nature of Hirst, examines the consequences of prohibitions on permit-exempt wells, and analyzes proposed solutions to provide citizens with water. We focus specifically on Senate Bill 5239 (Engrossed Second Substitute Senate Bill 5239 as of March 27, 2017). Hirst Legislative Memo Continue reading