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 .

KPTP Mtg: June 19 7PM Glenn Morgan

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

KAPO’s Submission to the Planning Commission on the Critical Ares Ordinance Update

KAPO Testimony to the Kitsap County Planning Commission on the Critical Ares Ordinance dated 2 May 2017   Ltr-KAPO to PlanComsn 5-2-17

Our testimony should be influential in what is included in an updated CAO, if any changes in the 2005 adopted Ordinance are to be made, but so far there is no indication it has or will. Thus, KAPO concludes the ordinance as presently drafted is vulnerable in an appeal. If our assessment is correct, Kitsap County will be spending the public’s money to rectify issues after the fact that could have been addressed in the drafting process or at the very least in the public hearing consideration process. Based on appearances, the Draft CAO Update is nothing more than proposed legislation for the sake of adopting more restrictive rules. So far, no justification has been presented by DCD staff for:

a.) what the values and functions are of so-called Critical Areas,
b.) what measures, if any, are necessary to protect those values and functions,
c.) what consequences redound to the County’s citizens if those undefined values and functions are somehow compromised,
d.) what data has been collected to demonstrate a problem exists that justifies regulatory measures and finally
e.) what is the minimum necessary to address the issues presented in the analysis that documents or documented a problem. Clearly the “problem” has not been defined and yet draconian rules (even more so than found in the 2005 Cao) are being proposed to supposedly solve a problem that may not in fact exist.

KAPO remains unalterably opposed to this proposed Draft CAO Update or any and all other regulations proposed for regulation sake.

 

KAPO Presentation on the Kitsap County Critical Areas Ordinance Update

Things that we don’t like about the Kitsap County Critical Areas Ordinance Update

Kitsap County is in the process of updating its critical areas regulations. These regulations, known as the Critical Areas Ordinance (CAO), are those rules in the County Code (KCC Title 19) that address how various environmental resource and hazard areas are to be managed when using or developing property.

The Ordinance is in the final process of review and is scheduled to be approved by the end of June.

Read the update and make your opinions known. 

Kitsap County Commissioners: Kitsapcommissioners@co.kitsap.wa.us

Edward Wolfe: ewolfe@co.kitsap.wa.us

Robert Gelder: rgelder@co.kitsap.wa.us

Charlotte Garrido: cgarrido@co.kitsap.wa.us

Planning Commission Secretary: dgurnee@co.kitsap.wa.us

Critical Ordinance Update: Kathlene Barnhart: kbarnhar@co.kitsap.wa.us

We should press for the following issues:

1. All creatures great and small
   1. The ordinance must clearly identify exactly what species are being protected and the source for that listing. If a species not on the national or state list is identified, there must be some scientific reference to justify the listing. We need to know exactly what we are protecting and why. The composite listing should be in a “library” directly available to Kitsap residents.
   2. The Ordinance should have specific habitat and buffer requirements for each species listed. General dimensional buffers should not be considered. The ordinance must identify the minimum protections that are required and those must be appropriate to individual sites. The overall effort for Critical area protections must be based on the minimal impact necessary on a site specific basis.
   3. All critical habitat need to be identified with specificity on County prepared maps that are available to the public.

2. Assuring effectiveness
   1. A specific set of baselines applicable to each critical area defined by the county must be established for monitoring purposes. The baseline establishes the as existing condition at a date specific and will serve as the benchmark for assessment of effectiveness.
   2. An appropriate set of metrics to be used to measure change in status (against the baseline) must be established. The metrics must provide an objective set of measurable.
   3. A formal program of monitoring to record metric data and analysis of that data to determine protection effectiveness. Incorporate the Health Department Stream and other wildlife monitoring programs in to a single county effort. The outcomes of the monitoring program will serve as the basis for revision to the ordinance.

3. What is a WETLAND and why are they protected
   1. Wetlands in the county must be identified and located on maps created by the county. The information must be validated by field study. The results of a filed study must be used as the basis for determination of site specific protections including minimal buffer requirements, if any are indicated.
   2. A specific reason(s) for protections to be applied to each identified wetland must be established and documented. The protections, including specific (minimal) buffer requirements must be site specific.
   3. Baseline conditions for each specific wetland must be documented and used as the basis for monitoring and ongoing assessment of protection effectiveness.

4. Entry on Private property
   1. As was noted in the previous discussion on the proposed title 5 and the 2005 CAO edition, there are but three ways to properly gain entrance onto private property: by invitation (that would include limited inspection agreement associated with a permit), emergency associated with safety of life or property requiring immediate action, and legal warrant. The ordinance should simply state the actual requirements and stop trying to create an “alternate world”.
   2. The provision of RCW 59.18.150 must be complied with and the information must be provided in a user friendly manner.

5. Practical Basis for current revision not evident
   1. There are at least 12 court and/or GMHB cases and decisions (provided separately) that have not been factored into the update. The cases have significant impact on the draft update. More than a cursory review by the Civil Office is required. An explanation of why a finding is not applicable should be provided.
   2. What is the evidence that the provisions enacted in 2005 have not been effective? If there is no specific evidence why is the update required for any reason other than to incorporate new DOE guidance? If the DOE guidance is the basis, what action has been taken to validate that the guidance is actually applicable to Kitsap?
   3. What study or review has been completed to determine if the 2005 restrictions were excessive and would support reduction in those restrictions? If the answer is none, how can the revision be considered accurate or appropriate for the County?

6. Application of CAO not consistent with other Titles
   1. Several of the County Titles address uses and requirements similar to CAO however CAO restrictions are much more severe and would limit virtually all normal human activity in the County. Of specific note are restrictions on (but not limited to) grading, movement of soil, and limits on impervious surfaces.
   2. A plain reading of the ordinance (words have meaning) does not reflect the “interpretation” most commonly offered by DCD. Of note even that “interpretation” varies from staff member to staff member and case to case. Plain reading does not reflect intent offered by DCD
   3. The CAO has invented a new language that significantly alters or modifies words found in common usage. To understand the ordinance, mastery of the revised definitions is essential. Common folk cannot understand the document as written.

7. Actions required for County (or other tax jurisdiction) responsibilities
   1. An effective storm water runoff filtration system for roads, parking lots and similar facilities to limit impact on streams and the sound must be implemented. Use of the Suquamish Salmon studies to identify effective bio filtration methods is recommended.

8. Creating an appropriate level of professional expertise in DCD, establishing “intent” for the CAO, and establishing responsibilities.
   1. The draft extends significant discretion to the Director and Department for interpretation, application, and enforcement. Without a clear Commissioner intent statement and full clarity of the other issues, this amounts to a license to dictate. A specific “intent” statement must be included in the CAO
   2. Because almost absolute authority for implementation, interpretation and enforcement of the CAO has be delegated to the “department” it is imperative that staff members responsible for such action be properly trained and qualified in the areas of expertise covered by the CAO. An appropriate training program must be established.
   3. The Hearing examiner can only guess intent when hearing appeals
   4. Commissioners have taken themselves “out of the loop” in the appeals process and have no way to address issues of misconstrued application of the ordinance or misunderstanding of intent.
   5. The Commissioners are directly responsible to address and defend the execution of the CAO at the GMHB and the Courts even though they have no say in the actual implementation of the ordinance. That makes no sense.

9. What is the economic impact considerations of the CAO
   1. The ordinance has direct impact on all development in the county and certainly reduces the amount of land previously considered “available” in development of the Comprehensive plan which in turn restricts allowable growth.
   2. The Notice to Title has direct and permanent impact on the value of land, the ability to develop that land, and the future disposition of that land which probably constitutes a taking or at least the grounds for lengthy litigation.
   3. The various studies required by the ordinance do nothing to add value to a development (actually the opposite is true) thus increasing the cost of development. That is not conducive to economic growth for the County.

10. No effective “public participation” as required by GMA (and DOC Checklist)
    1. The determination that effective public participation requirements have been met should be based on the “best interests” of the taxpayers of the County and not an opinion from the Prosecutors office. County government exist to protect individual rights and participation is a basic right.
    2. Although a “committee” was formed, that body did little or no work and had effectively no input on the creation of the draft.
    3. The first awareness of the public to the draft revision was a posting on the web site with a short response window. Asking the public to complete the necessary background study, find and read each of the references, and study the elements of the CAO in 30, days is dismissive of public participation.
    4. For some reason DCD determined it had the authority to edit and “summarize” comments provided by the public. That is not a role properly assigned to one side of a contentious discussion. Making matters worse, DCD provided “department responses” to the edited comments making it appear that reasonable debate was conducted. Not true.

11. The Takings considerations
    1. Because the ordinance imparts restrictions only on application for a development permit, there is a major discriminatory aspect in execution of the law. There is no vehicle to apply the restriction of the ordinance to all properties much less adjacent properties with common presence of a CA.
    2. Under the Ordinance the CA and Buffer establish a priority “highest and best use” above that of the property owner and thus a value that exceeds the assessed value of the property. There is no valid argument that value has not been removed from the owner.
    3. Notice to Title clearly establishes a condition in which the “state:” (County has declared that use of property is prohibited or limited to less than “highest and best “ use and certainly establishes a taking. If the property owner cannot enter into or make any use of that portion of the property, it is no longer under their control, a basic tenant of property rights.(possession and control, use, and exclusion)
    4. The Notice to Title as required by the ordinance is not universal (all properties on which a CA exists)and has exceptional negative impact on both use and disposal of property
    5. The application of Reasonable use is site specific and not universal so a loss of use by one property owner is not reflected in similar losses by all. Similarly, requirements regarding fencing, signage, native vegetation, and similar are not universally applied and the total burden falls upon an individual property owner who is, in reality, penalized for expressing a desire to use his property (a right protected by the Constitutions)

 

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PLF asks U.S. Supreme Court to grant review of a Washington state “relevant parcel” case

Elliott Severson purchased a parcel of commercial-zoned property located among other commercial development along a busy street. At the time he bought the land, there was ample space to build a small restaurant or store while respecting all critical area restrictions. But, over the course of a few years, the city ratcheted up its critical areas regulations to the point that his property was rendered useless. And when it came time to pay for having taken the property, the city refused, reasoning that because Severson had been involved in developing neighboring properties in the past, he wasn’t deprived when the city refused to issue any approvals on his commercial-zoned (and taxed) property. The fact that he was left holding an undevelopable parcel of property didn’t matter.

WSJ: Supreme Court Confusion Could Cost a Family $410,000

The justices have an opportunity to clarify the muddle of ‘regulatory takings’ law.
As confirmation hearings begin this week for Judge Neil Gorsuch, the Supreme Court will be considering one of the most important property-rights cases to come before it in a long time. The pity is that without Judge Gorsuch on board, a 4-4 court could leave in place decades-old precedents that have made a mash of the Fifth Amendment’s Takings Clause, which prohibits government from taking private property for public use without just compensation.

Monday’s case, Murr v. Wisconsin, was brought by four siblings, the Murrs, who inherited two contiguous 1.25-acre lots on the St. Croix River. Their parents had built a home on the first lot and later purchased the second lot as an investment.

The trouble began in 2004, when the Murrs sought to sell the second lot, valued at $410,000. They planned to use the proceeds to upgrade their ancestral home. But they were blocked by a local zoning ordinance, passed years after the original purchases. Because the two lots were contiguous and in common ownership, the ordinance treated them as one—even though they had long been deeded and taxed separately.

Under the ordinance, the Murrs had to sell the lots together or not at all. And they couldn’t build on the second lot, even though homes could be built on similar lots nearby that had been grandfathered in. In short, they were out $410,000.

This is a classic “regulatory takings” case, with a twist. When government condemns property for public use, such as to build a road, it has to compensate the owner. But what if it simply takes most of the land’s uses through regulation, leaving the owner with a virtually worthless title? That has been happening in America for decades.

“Critical Habitat” decree opens the way for limitless federal land grabs

Markle Interests, LLC v. U.S. Fish and Wildlife Service

Status:  Briefing before the Fifth Circuit Court of Appeals was completed on March 9, 2015. Oral argument was held on June 2, 2015. On June 30, 2016, the court held 2-1 that the Service can designate areas that do not currently qualify as critical habitat, and will not foreseeably serve as critical habitat, and are unoccupied by the species, nevertheless may be deemed “essential” to the species’ conservation and therefore eligible for designation as “unoccupied critical habitat.” The joint motion for rehearing en banc filed in the 5th Circuit on July 29, 2016. On February 13, 2017, the Fifth Circuit denied rehearing by the full court. The case will be petitioned to the U.S. Supreme Court.

Summary:

Can federal officials label private property as “critical habitat” for an endangered species, when the land is acknowledged not to be usable for the species, and may never be usable habitat?

This is what the U.S. Fish and Wildlife Service has done in the matter of the Dusky Gopher Frog in the Gulf Coast Region.  In June, 2012, when the agency designated “critical habitat” for the species, regulators stretched the Endangered Species Act beyond any previous interpretation by including 1,544 acres of private property in St. Tammany Parish, Louisiana, that is manifestly not suitable for the frog.

In fact, the Service itself admits as much.  The designation of this forested area is based on pure speculation.  The Service hopes the land might someday be managed by private parties for the species’ conservation.  However, the only way to make this area suitable for habitat is through controlled burns and revegetation, which the Service admits it cannot mandate on private land.

PLF is representing the property’s owners in challenging this unjustified federal targeting of their land.  Under the ESA, critical habitat must actually contain the physical and biological features essential to the conservation of the species.  If property can be designated even though it isn’t usable as habitat, there are no limits on the amount or location of private land that can be roped off by federal decree.  Regulators can impose restrictions on anyone’s property, anywhere — merely by claiming it could someday, in some speculative way, be used for species recovery.

Pacific Legal Foundation Blog by M. Reed Hopper

 

 

Kitsap County Critical Areas Ordinance Update Posted for Public Review

Critical Areas Ordinance Update

Kitsap County is in the process of updating its critical areas regulations. These regulations, known as the Critical Areas Ordinance (CAO), are those rules in the County Code (KCC Title 19) that address how various environmental resource and hazard areas are to be managed when using or developing property. Adoption of any amendments are expected by mid-2017. Go to the CAO Update Site.

Summary of Changes

Public Comment Period Open March 1, 2017 – March 31, 2017

Critical Areas Ordinance Update 2017 Schedule
(As of 3/2/17; Subject to change)

Mar 1-31: Public Comment period on the Draft

Apr 17-May 2: Public Comment Review  (prior to Planning Commission Hearing)

Apr 27: Open House and Planning Commission  Hearing‐Poulsbo

May 2: Open House and Planning Commission Hearing‐Port Orchard

Jun 22: Open House and Board Hearing Poulsbo

Jun 26: Open House and Board Hearing‐ Port Orchard

Jun 28: Adoption

Appeal period                                                                                          60 days

Lot Aggragation to be reviewed as a taking issue by the US Supreme Court

Case of government land grab scheduled for Supreme Court

The U.S. Supreme Court has scheduled oral arguments on March 20 in a government land grab case out of Wisconsin where officials told a family their 50-year investment in a piece of property was, No. 1, worthless, and No. 2, still subject to property taxes due every year.

A legal team with the Pacific Legal Foundation is trying to sort out the situation for the Murr family of Wisconsin. The facts aren’t complicated. The parents of Donna, Joseph and Michael Murr, and Peggy Heaver, bought a St. Croix riverfront parcel and built a cabin for their own use in 1960. They also, a few years later, bought the adjacent, separate, lot as an investment, hoping to cash in when property values rose.

But in the 1970s, new land-use rules were imposed that limited the area of land that could be developed. As typically happens in those circumstances, the existing parcels were grandfathered under the previous rules which means the new limits wouldn’t apply.

Except in this case, the bureaucrats arbitrarily said that the rules WOULD apply if the property owner owned an adjacent piece of land. That means the government now officially considers the two parcels purchased by the Murrs one lot, even though they legally are separate entities and property taxes still are collected every year on both.

So the family is not allowed to sell the second parcel, or build on it.