Tag Archives: Kitsap Alliance of Property Owners

Kitsap shorelines always good for surprises

Shoreline buffers are us, no doubt about it.

As one case involving Kitsap County’s shorelines waits on appeal to the U.S. Supreme Court, a whole new issue has sprung out of a state law written to resolve confusion created during the earlier lawsuit.

Until Kitsap County adopts a new shorelines plan next year, conflicts between the Shorelines Management Act and the Growth Management Act could go on. After that, expect a new round of appeals.

The latest issue arises out of a little-known provision of a state law passed in 2010. The overall intent of the law was to allow a local Critical Areas Ordinance to provide shoreline protections until a new shorelines plan is drafted. For background, see Water Ways from Jan. 6 of this year.

There is an exception in the law, however, listed in Subsection 3(c) of RCW 36.70A.480, which allows for “redevelopment or modification” of a structure as long as it is consistent with the local shoreline master program and it is shown that “no net loss of ecological function” would result.

Sure enough, a Kitsap County property owner who wants to tear down a house and build a new one closer to the shore was able to make use of that special provision.

Kitsap County Hearing Examiner Kimberly Allen, who approved the redevelopment, said her ruling “rests on a complex and very fact-specific set of interactions” between three different laws. For details, check out my story published in today’s Kitsap Sun or read the hearing examiner’s decision (PDF 1.3 mb) for yourself.

The case on appeal to the U.S. Supreme Court, Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board, raises questions about whether large, uniform buffers violate the “takings clause” of the Fifth Amendment. KAPO contends that Kitsap County requires property owners to dedicate “large tracts of private land to public use as environmental conservation buffers” without a clear showing that such buffers protect the environment.

The case has yet to be accepted by the Supreme Court, but one can get a good understanding of the arguments by reading the petition for writ of certiorari (PDF 152 kb), posted on the website of the Pacific Legal Foundation, which is representing KAPO.

Meanwhile, the task force working to update Kitsap’s shorelines plan has reconvened, taking up buffers and other controversial issues, after a hiatus through most of the summer and fall. For the latest on those deliberations, see stories I wrote for the Kitsap Sun Nov. 7 and 13:

Shoreline task force to tackle thorny issues

Shoreline buffers move to front burner

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Court finds resolution for conflicting shoreline regs

The conflict between the Growth Management Act and the Shoreline Management Act may be over, as a result of a Washington State Court of Appeals case handed down this week for Kitsap County. (See my story in today’s Kitsap Sun.)

The confusion has affected many cities and counties that believed they were better protecting their shorelines from degradation when they updated their critical areas ordinances, as required by the Growth Management Act. It turns out that the GMA may have improperly stepped into the 200-foot shoreline zone where the Shoreline Management Act presides.

The conflict grew out of a divided Washington State Supreme Court decision for the city of Anacortes, which concluded that only the Shorelines Management Act could govern shorelines. By the time the case was resolved in 2009, many cities and counties had already updated their local critical areas ordinances with stricter shoreline regulations.

Washington Department of Ecology advised local governments to continue using their CAO rules for shorelines, because the divided decision was not binding on other jurisdictions. That advice caused a stir of its own. (See Water Ways, Nov. 3, 2009.) Kitsap County got caught in the crossfire in a lawsuit with the Kitsap Alliance of Property Owners, as the Court of Appeals used the same reasoning in saying that Kitsap’s CAO should not apply to shorelines.

Last year, the Legislature moved to clarify the matter by saying cities and counties may use their CAOs until they complete updates to their Shoreline Master Programs, an effort in which many are engaged now. The law was made retroactive to validate numerous CAOs that were in limbo.

Kitsap Alliance of Property Owners argued that it was unconstitutional for the Legislature to pass a law retroactively to get around a court ruling. However, in the latest case, the Court of Appeals sided with the county, saying the Supreme Court had never ruled authoritatively on the matter because of the split nature of the original decision. That made it legal for the Legislature to clarify the intent of the law.

With the appeals court upholding the Critical Areas Ordinance, the appeals court judges then moved into the meat of the Kitsap County case, which involved the use of “best available science” and several constitutional claims. The court found in favor of the county on all major arguments. One can find the discussion in the second part of the Court of Appeals ruling (PDF 148 kb).

KAPO officials are reviewing the case with lawyers for the Pacific Legal Foundation before deciding whether to appeal the matter to the State Supreme Court.

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A vision for a holistic ecosystem, humans included

Hood Canal Coordinating Council is undertaking an effort to bring average residents into the discussion about how to preserve the Hood Canal ecosystem.

While Hood Canal is becoming known for its low-oxygen problem and occasional fish kills, it’s good to remember that the canal remains famous for its shrimp, oysters and crabs. Furthermore, history tells us that the canal once abounded in sealife, including all kinds of salmon and bottomfish.

Can the canal ever come close to its heyday? I don’t know, but plenty of people would like to give it a try. (By the way, if you want to argue that the problems are caused entirely by over-fishing, we’ll need to discuss individual species — including those that aren’t harvested at all.)

The underlying premise of the Hood Canal Integrated Watershed Management Plan is that people can find ways to benefit from a healthy ecosystem, that natural processes — including the survival of plants and animals — can continue without wrecking the lifestyles of humans. Check out my story in the Kitsap Sun Oct. 26 for an overview of this project.

The vision for this approach is articulated in a document called “Development of Ecological and Socioeconomic Targets” (PDF 60 kb). The vision section begins with a short, positive statement:

Humans benefit from and coexist sustainably with a healthy Hood Canal.

The document goes on to elaborate on the vision within various goals, consistent with goals of the Puget Sound Partnership:
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Shoreline task force hears from potential opponents

Kitsap Alliance of Property Owners has fired a warning shot across the bow of the 20-member task force working to update the Kitsap County Shoreline Master Program.

The group this week focused their efforts on reviewing the Kitsap County Shoreline Inventory and Characterization, a document that describes physical and biological conditions of the shoreline, along with existing land uses and man-made structures.

As I report in a story in today’s Kitsap Sun, Karl Duff, the immediate past president of KAPO, essentially warned the task force that they run the risk of becoming a pawn of the county and that KAPO will sue if the process continues on its present course.

I haven’t yet spoken to any of the task force members about this, but some of their reactions during the meeting showed that they have no intention of being intimidated by KAPO.
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Task force embraces shoreline planning

It looks like Kitsap County’s shorelines task force is off to a good start. All but a couple of the 20 members attended the first official meeting of the group last Thursday. Everyone seemed happy to be there.

Several members made a point of thanking the county for bringing the task force together at the start of the process of updating the Kitsap County Shorelines Master Program. Kitsap County’s planning director, Larry Keeton, said he is not aware of another county relying on a citizen task force to the extent that Kitsap is. Check out the story I wrote for Saturday’s Kitsap Sun.

One member said he was glad to be part of the process, even though he realizes that the plan finally adopted by the county commissioners may be different.

As a “get-to-know-you” exercise, the meeting’s facilitator, Margaret Norton-Arnold, asked members to talk about themselves. And, to get a snapshot of their views, she asked them to place their names, a picture or some kind of symbol in an appropriate spot on a long poster. On the poster, a picture of industrial development had been drawn on the left side, with a forest scene on the right. People who believed that development had already left its mark were asked to place their symbol on the left, while those who favored restoring things to a pristine condition were asked to place their symbol on the right.

Most people placed their names/pictures close to the center. Two or three tried to suggest ways of bringing the opposite sides together.

Only Bob Benze of the Kitsap Alliance of Property Owners chose not to place himself on that spectrum. He said his emphasis during the planning process would be to make sure individual property rights are respected and that the laws be followed.

Benze’s statement prompted Tom Nevins, a member of the Kitsap County Planning Commission and a longtime conservation supporter, to get up and say his focus would be on community values while respecting people’s rights and the underlying laws. His mark went somewhere in the middle.

Frankly, that’s exactly what I expected from those two, which is one reason I predicted a lively debate in my April 18 Water Ways entry.

As Norton-Arnold described it, the process of consensus-building will allow room for all viewpoints. Where compromise cannot be reached, she will prepare “majority” and “minority” reports to reflect the full range of opinion.

While introducing herself, Norton-Arnold revealed her longtime relationship to Kitsap County, and I discovered a distant and roundabout connection between her and myself.
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Shoreline conflict and confusion have not yet abated

When it comes to environmental protections for shorelines, local critical areas ordinances continue to be a source of controversy.

The latest development involves a letter from state Rep. Jan Angel asking the state departments of Ecology and Commerce to quit giving legal guidance to local agencies. See my story in today’s Kitsap Sun.

It seems clear from court decisions and legislative actions that the Shoreline Management Act will provide long-term regulations for properties within 200 feet of the shoreline. This law — unlike the Growth Management Act that spawned critical areas ordinances — requires local shoreline plans to be approved by the Washington Department of Ecology.

But the immediate conflict involves what regulations should apply until local shoreline master programs are updated, a process under way for most Puget Sound cities and counties.

The practical aspects are that critical areas ordinances, updated within the past few years, generally include more restrictive regulations, such as larger buffers, in comparison to shoreline plans, most of which were drafted in the 1970s with updates that vary by jurisdiction.

Legally, the issues become complicated. Angel’s position appears to be that court rulings direct local governments to fall back to rules listed in the shoreline master programs until new shoreline plans are approved. Read her letter to Interim Ecology Director Polly Zehm (PDF 172 kb).

Ecology’s position seems to be that local governments should not throw out rules developed in their critical areas ordinances until the shoreline plans are updated.

I should point out that Brian Hodges, an attorney with Pacific Legal Foundation, maintains that Kitsap County would be putting itself at legal risk if county officials continue to process shoreline applications under the Kitsap County Critical Areas Ordinance. Hodges was the prevailing attorney in a lawsuit brought by Kitsap Alliance of Property Owners. County officials say they will appeal the ruling to the Washington State Supreme Court.

As for Ecology’s updated “guidance,” the reasoning goes as follows. See Ecology’s Web site for the complete analysis.
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It looks like the “shoreline science” debate has begun

Kitsap Alliance of Property Owners has jumped out in front of what promises to be a lively debate over shoreline science.

Don Flora, a retired forest researcher, conducted a statistical analysis of data compiled in separate shoreline assessments of East Kitsap and Bainbridge Island. Flora concluded that the reports show no apparent relationship between man-made stressors and ecosystem functions. Please take a look at my story in today’s Kitsap Sun.

Not finding a correlation between these two factors does not mean that man-made structures are harmless or without effect on the ecosystem. But these findings do raise questions, as Flora points out. Download his report here (PDF 188 kb).

So far, I have been unable to find a qualified scientist who has read Flora’s report and wishes to respond on the record. I’ve heard from a few who have questions about the analysis and may prepare a response in the future.

Among the complaints about Flora’s report are these: It does not follow standard protocol for a scientific report; it is not obvious how he conducted his analysis; and it was not peer reviewed by third-party experts.

Flora told me that his intent was to create a paper that could be read by average people, and he did ask a couple of people to edit it for readability. He did not intend for it to be considered a scientific paper nor for it to be peer-reviewed in the scientific sense.

I have heard complaints that Flora did not show his work, and I found myself asking him to point me to the data tables that he used to plug numbers into the standard regression analysis — a statistical tool used to show relationships between two independent variables. I suggested to Flora that he include an appendix that would show the raw data and help people replicate his work. He thought this might be a good idea.

If you want to take a closer look, review the findings related to Bainbridge Island shoreline planning and Kitsap County shoreline planning, including the county shoreline assessments.

Some scientists find it offensive that Flora lifted data from these two reports and manipulated them to his own ends without consulting the scientists involved. Others are suspicious that Flora used these data to reach his own conclusions — a suspicion heightened because Flora is a member of KAPO. And KAPO’s press release (PDF 64 kb) about Flora’s report makes a leap that stirs the pot of controversy:

“These reviews bring into question the justification for any nearshore restorations or the need to impose any shoreline buffer zones in the upcoming Shoreline Master Program updates.”

Dealing with numerous scientific studies will be an important part of the effort to update the county’s shorelines plan. Kitsap County planners say they aren’t sure how they will deal with Flora’s report, but they intend to lean heavily on expertise from the Washington Department of Ecology to point them to reliable scientific studies.

The planners say they want to make sure that any studies upon which they rely for planning are vetted before they move into policy discussions. During the update of the county’s Critical Areas Ordinance, such studies were never fully vetted — at least not to the satisfaction of property rights advocates. KAPO members ended up arguing about science all the way to the Washington State Supreme Court — though the court did not address science issues at all when it overturned the county’s shoreline buffers. See the Sept. 9 Kitsap Sun and the Water Ways entry the next day.

I’ve always expected that experts would engage in a healthy discussion about what it will take to protect the ecological functions of the county’s shorelines. Now it appears the discussion may take on the tone of a debate. In comments posted at the bottom of today’s story, some people are showing their distrust of government while others are showing their distrust of KAPO.

I hope everyone can somehow relax enough to embark on a real search for truth knowledge as it relates to shoreline ecosystems. After all, isn’t that what science is really about?

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Kitsap County officials are knee-deep in shoreline issues

UPDATE #2, Oct. 20
Kitsap County commissioners have decided to appeal the latest court ruling to the Washington State Supreme Court. See the story I wrote for the Oct. 20 Kitsap Sun.

UPDATE, Sept. 25
Kitsap County commissioners have decided to ask the court to reconsider its ruling that would invalidate the county’s Critical Areas Ordinance when it comes to shorelines. See the story I wrote for today’s Kitsap Sun. I will have more details as they become available.
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While Kitsap County officials gear up to rewrite the county’s Shoreline Management Master Program, they have been handed a hot potato they cannot ignore.

As I describe in a story in today’s Kitsap Sun, the Washington State Court of Appeals has thrown out the county’s shoreline buffers written into law when the county commissioners updated the Critical Areas Ordinance.

Property-rights advocates feel vindicated, and rightfully so. They have spent their own money — more than $100,000 — to fight a county they feel should be standing up for their rights. (See Karl Duff’s column from Feb. 25.) Meanwhile, the county uses public money to fight them back. Victory is sweet for the winners, but it comes at a price.

I hate to say it, but that’s the way things go. When environmental advocates win, they also wonder why they have wasted money battling the government. And if you are a government official, you try not to lose to either side — which is not easy in a case like this, because both sides were suing them at the same time.

Supporters of property rights have many grievances, and they have a right to speak up. But this week’s court decision must be kept in perspective.

Did the county commissioners violate private property rights when they increased shoreline buffers? Did they rely on the wrong scientific studies? Did they mistakenly apply uniform buffers when they should have considered the ecological value of each shoreline segment?

Maybe, maybe not. But the court never got to those questions. Let me recount the history.

Four years ago, when the county was updating its Critical Areas Ordinance (see Title 19), the commissioners essentially decided to leave 35-foot shoreline buffers in place until they updated the Shoreline Management Master Program (see Title 22). At that time, they thought the update would be just a year or two away.

The Central Puget Sound Growth Management Hearings Board ruled that the commissioners could not follow that course of action, because such buffers would not adequately protect habitat for salmon, some of which are listed under the Endangered Species Act.

So the commissioners went back to the drawing board and approved new shoreline buffers of 50 feet for urban areas and 100 feet for rural and semi-rural areas. They said the buffers would get closer scrutiny and might even be reduced during the shorelines plan update.

Those buffers were challenged on multiple grounds by the Kitsap Alliance of Property Owners. KAPO’s arguments were rejected by the hearings board (which was not allowed to address constitutional issues) and by Superior Court Judge Craddock D. Verser, who ruled that the county had followed “a reasoned process to address the necessity of protecting the identified functions and values” of critical areas. See my story of July 2, 2008.

That was before the State Supreme Court handed down a decision that interpreted the intertwined Growth Management Act and Shorelines Management Act as saying shorelines rules can be changed only by amending the county’s shorelines plan. See my story from Aug. 1, 2008.

And that was the controlling factor in this week’s decision. The county commissioners — and KAPO — were right the first time when they tried to delay any significant action on shoreline buffers. The appeals court acknowledged the confusion created for cities and counties by the Legislature and the State Supreme Court. You can review the comments in my story today or read the Appeals Court opinion for yourself.

Why does it matter whether the buffers are approved under one law or another? Besides the legal process, it is important to understand that the laws are distinct in their philosophies and procedures.

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Shorelines battle starts to stir behind the scenes

<i>Hood Canal and the Olympic Mountains from a home on Kitsap County\'s shoreline.</i><br><small>Photo courtesy of Dr. Dale Ireland</small>
Hood Canal and the Olympic Mountains from a home on Kitsap County's shoreline.
Photo courtesy of Dr. Dale Ireland

Planning the future of Puget Sound’s shorelines is under way or soon will be under way among most local governments in Puget Sound.

Some counties have completed the work because of early funding by the Legislature (King and Pierce) and some because they pushed ahead on their own (Whatcom). Some counties started early but have faced delays (Snohomish and Jefferson).

Kitsap County planners started early but focused their efforts on an “inventory” of existing conditions along the entire shoreline. That inventory, which includes prospects for habitat restoration, could be a major tool in the update of Kitsap’s Shoreline Master Program.

Do I need to remind anyone how contentious this issue is likely to become in counties with substantial shorelines?

In Kitsap County, both property rights advocates and environmental groups have already announced that they are getting ready for a fight.

Kitsap Alliance of Property Owners came out recently with guns ablazing: “Kitsap County is getting ready to update its shorelines master program,” KAPO President Tim Matthes says in a postcard to shoreline owners. “You will find very little in the news informing property owners of changes.”

That’s an interesting comment, considering that I have already written two stories before the process even starts. I can tell you now that there will be plenty to write about when this issue begins to boil.

The card also states, “County staff wants to treat every inch of shoreline as ‘critical area.’ They want to prohibit bulkheads, ban docks, force you to replace your gardens with ‘native’ plantings and control what kind of trees you plant, trim or remove.”

I’ll let others respond to those specifics if they wish, but clearly this message is designed to lead the charge into battle.

KAPO is not the only side getting ready for a fight, however. Beth Wilson of Kitsap Conservation Voters recently informed the county commissioners rather forcefully during a recent “Meet the Commissioners” forum that shoreline planning could be the most important issue of the year among the local environmental community.

While Kitsap County planners prepare for two years of work on the Shoreline Master Program, cities in Kitsap County are getting ready for updates as well. There was talk at one time of strong collaboration between the county and the cities, but it appears that jurisdictions are starting to drift apart. It remains unclear whether any kind of coordination will take place.

Kitsap County Planning Commission was briefed on the upcoming planning effort a couple of weeks ago (see Kitsap Sun story, May 20). The county commissioners discussed the same information today.

Some of the key ideas include:
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