I’m not sure whether Kitsap County’s new hearing examiner will mean a shift in the approach to land-use decisions or future outcomes. But circumstances surrounding two recent projects by the same developer caused me to take a closer look. See my story in Sunday’s Kitsap Sun.

Here are the basics: Reinout van Beynum, a Keyport employee and part-time developer, submitted separate applications for two projects in which he asserted his property rights with “reasonable use” claims. A “reasonable use exception” is used when no reasonable alternatives exist and it isn’t possible to meet environmental standards in the county’s Critical Areas Ordinance. In other words, to deny the application would deprive the owner of the right to use his property in a reasonable way.

They were almost never used until the past year or so, when I’ve seen several come through.

These two van Beynum projects were distinctly different, and nobody can say that a change in hearing examiner made the difference in the decision. Still, a previous hearing examiner, Terrence McCarthy, approved the reasonable use exception for the first property, while the new examiner, Kimberly Allen, denied the reasonable use exception for the second.

You may wish to review the finer points yourself. The rationale of the two hearing examiners is fairly well laid out in their written findings. As I said, the first case (PDF 680 kb) is substantially different from the second one (PDF 1.1 mb).

I’ve always wondered what it means when a hearing examiner agrees with nearly all the recommendations of county planners. Does it mean that the planners are on solid legal ground and that the hearing examiners have little choice but to follow suit? Or does it mean that any bias is the same for planners and hearing examiners, perhaps because they both work for the county commissioners? (I do not mean to impugn anyone on the county staff, because I can honestly say everyone I know there is a true professional. I’m only raising the question, since we are talking about human relationships, which are rarely perfect.)

When I talked to people involved in these recent cases, they saw a clear difference in the new hearing examiner’s approach. Van Beynum tended to think that Allen did not fully understand property rights, while the environmental folks were inclined to see a favorable shift in attitude.

Here’s how Illahee’s Jim Aho saw it: “She questions everything and wants to have a total understanding of the project so she can make an informed decision. She is a bright light. She probes and digs and wants to do the right thing. I haven’t seen that before.”

I want to let you in on a little debate that will become vitally important to salmon restoration in the coming weeks. It’s not really going on behind the scenes, so some of you may be aware of it. But it hasn’t yet been formulated as a stark policy issue.

Puget Sound Naval Shipyard in Bremerton, not far from the heart of salmon country Kitsap Sun photo

Basically, the question is this: Should limited dollars be spent to protect the best habitat remaining, restore slightly degraded systems to high-quality habitat, or try to bring salmon back to urban areas where the most people live.

In the Aug. 7 edition of Crosscut, writer Daniel Jack Chasan invoked the word “triage” when he said that “we’ll never have enough money to do everything; so it makes sense to concentrate resources on the most significant projects with the greatest chances of success.”

Dan mentions a conversation he had with David Dicks, executive director of Puget Sound Partnership, and he quoted John Lombard, author of “Saving Puget Sound” in making his point that putting money into urban streams may be a waste of money in terms of habitat benefits.

In her latest blog, Kathy Fletcher, executive director of People for Puget Sound, did not mention Dan’s piece by name, but she mentioned “triage” and emphasized that she wants to “put the wooden stake into the heart of this kind of thinking.”

She continues:

This is the kind of thinking that gets us beautiful places to visit but unhealthy places to live. This is the kind of thinking that gets us places for salmon to spawn but nothing for the salmon to eat when they leave the rivers. This is the kind of thinking that gets us lovely areas to observe orca whales—as they die out because of contamination in our urban bays, and not enough salmon to eat.

This is the kind of thinking that encourages us to believe that it doesn’t matter what poisons we pour on our lawn or how much pavement we spread around in our urban areas.

If we “triage” and write off our urban areas, we write off the lowlands and we write off a healthy Puget Sound. That’s because a healthy Puget Sound ecosystem is tied together by clean water, clean air, shorelines, wetlands, currents and plants and animals that move from place to place. Simplistic thinking about “triage” might sound practical, sensible, efficient, business-like and even effective—but it’s not…

We want to bring the patient back to health. Trying to save its heart at the expense of its kidneys and liver is the path to failure.

Kathy makes a passionate and powerful argument about the need for holistic medicine. Definitions are important, it turns out. Is the patient we’re talking about Puget Sound as a whole? Is it a watershed or just a stream or a bay?

I particularly like her reminder that many of our cities are built at the river mouths. We might not ever restore these areas enough to call them prime spawning habitat, but we can do things to help the adult fish make it through on their way upstream to spawn. We might help the juveniles survive on their way to the ocean.

Kathy is a member of the Ecosystem Coordination Board of the Puget Sound Partnership. It sounds like she is ready to make a strong case when this issue comes up as part of the Puget Sound Action Agenda — and it will. Remember, that the four Action Agenda priorities include focusing on the “most urgent and important problems,” as well as protecting the most “intact ecosystems.”

Going back to Dan Chasan’s article, some good points are made about where to find money for ecosystem restoration. For example, the Washington Department of Transportation spends millions of dollars each year to mitigate highway construction projects. We could take a look at whether all this money is best spent at the edge of the highway, as it is now, or whether it might be moved upstream or downstream to solve more significant ecosystem problems.

I have been thinking about another source of money that may have some merit. Lately, Kitsap County planning officials have been approving land-use variances right and left, and I’m sure Kitsap is not alone.

For example, a stream or shoreline buffer may be 100 feet, but many legal building sites don’t have enough property for the full buffer width. So, with the help of a hired biologist, the county frequently approves a buffer of 50 feet or less. Mitigation may include planting some shrubs, but I doubt that the resulting “functions and values” measure up to a larger buffer.

I realize that this idea will be controversial, and it isn’t ready for prime time. But would if there was a fee per foot for the variance, with credit given back for the mitigation work? At $100 a foot, a shoreline variance of 50 feet would provide $5,000. If the plantings cost $1,000, the property owner would contribute $4,000 into a fund for restoration somewhere else in that watershed. It’s just a thought, so be kind with any attacks you feel are necessary.

When it comes to protecting the environment, I think we’ll be hearing a lot more about enforcement in the coming weeks.

I’ve attended several meetings of the Puget Sound Partnership where people have said that we don’t need new rules; we need existing rules to be enforced.

You don’t have to look very hard to see the problem. At the county level, planners and hearing examiners impose rules that sound like they would protect the environment — including up to 100-foot stream and shoreline buffers in some cases. But once a person completes a project, there is no guarantee that he won’t fill in the wetland or cut down the trees in a buffer area.

Unless someone complains, there is no way to know whether the buffers survive over time. Without enforcement against those who violate the rules, the system becomes abusive against those property owners who act in good faith. That seems pretty obvious, right?

Kitsap County Commissioner Steve Bauer, a member of the Ecosystem Coordination Board for the Partnership, seems to understand the frustration of people who see violations but can’t get quick action. In many cases, the penalties are so low that some people violate the rules under the assumption that fines are just the cost for doing what they want.

In a Monday briefing I covered for today’s Kitsap Sun, Bauer expressed support for a more efficient system, including a process that would bring violations to a hearing examiner instead of district court.

I expect that this issue will be part of this year’s county budget discussions. While the budget is growing ever tighter, I’m sure the commissioners understand that you can’t really address this code enforcement problem without additional staff.

The same thing goes for state agencies — whether we’re talking about the Department of Fish and Wildlife, which our protects our wild creatures; the Department of Natural Resources, which addresses logging practices; or the Department of Ecology, which protects our land and waters from pollution. By the way Lisa Stiffler did a nice job examining Ecology’s enforcement problems in yesterday’s Seattle PI.

Back to the local level, health departments must deal with sewage, stormwater, garbage and hazardous waste problems.

Bill Ruckleshaus of the Puget Sound Partnership often talks about how his organization will not create new regulations. The Partnership simply intends to shine a light on the best actions taking place among governments, businesses and volunteer groups.

To the Partnership’s credit, enforcement has already been part of the general discussion. I found the following in the discussion paper about habitat and land use, which covers rules for protecting critical areas:

Most jurisdictions report a lack of funding to accomplish those tasks and further lack the staff to monitor whether the protections remain after a period of years (beyond the period where they hold bonds or other security for a project). Finally, many jurisdictions also report a lack of adequate funding for general code enforcement efforts (where activities take place outside of the permitting process).

The next step is to address the money issues, both inside and outside of state and local agencies. Until someone faces the financial hurdles, it’s just talk.