Understanding the buffer zone battle

The article following our comments appeared in the September 20, 2006 edition of the Port Townsend & Jefferson County Leader.

While we understand that county officials prefer to characterize the 450 buffer as a "waiver buffer" for those who have enough land so that a 450 buffer does not impact their opportunity to build a home, there are others for whom this is not a practical option.  For them, the draft's 450 foot buffer for an uncategorized wetland comes into play as the default.  On page 14 of the May 17, 2006 draft update, Note 3 following table 3.3 states:

"Uncategorized wetlands shall be assumed to be Wetland Category 1 with wetland characteristics that require the largest buffer width in the respective wetland category, unless an assessment is made of the wetland in order to determine its category and classify the wetland according to the wetland characteristics in Table 3-4B of this section.  The applicant shall be responsible for determining the wetland category and characteristics, and that determination must be made by a qualified professional."

We understand this to mean that an uncategorized wetland is assumed to be a Category I wetland with high land use.  Referring back to Table 3-3, that means that the wetland has a 450 foot buffer until such time as the applicant pays a qualified professional to determine the wetland category and characteristics.  To us, that makes the 450 foot buffer for Wetland Category I at high levels of land use.  We think Note 3 is quite clear in its intent, and it sounds very much like a default buffer to us. 

Perhaps it's the difference in perspective brought to the table when you are the landowner who has not yet hired a wetlands professional to characterize and delineate the wetlands on your parcel, rather than if you are in the regulator's seat?

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Understanding the buffer zone battle
County trying to educate on complicated issue

By Kasia Pierzga
Leader Staff Writer

Count planning staffers bristle when property owners point to a section of the critical areas ordinance that they believe requires a "default" buffer of 450 feet unless the owner of the property pays a professional wetland specialist to delineate the outer edge of the wetland. 

Cost estimates on wetland delineation vary, but habitat biologist Jill Silver said the bill could be as high as $2,000, depending on the property.

Critics of the proposed ordinance say it puts the brakes on just about any new activity adjacent to a wetland except for basic lawn maintenance.  Unless they want to pay for the delineation, anything more they do with their land can't encroach within 450 feet of a wetland.

But county planner Josh Peters says the ordinance does not establish a 450-foot default buffer.  Instead, it allows a property owner to go ahead with building plans without paying for a wetland survey.

Jefferson County's revised critical areas ordinance proposes to use a wetland management system developed by the state Department of Ecology.  Under the system, wetlands are categorized according to their level of function, with those scoring the highest level for wildlife habitat requiring the largest buffers to protect that function.

According to Peters, the maximum 450-foot buffer — which is provided as an option for landowners who decide they don't want to hire a specialist to perform a wetland survey — applies only when high-intensity land uses are proposed adjacent to wetlands that have been determined or presumed to have high habitat value.

The "waiver buffer" option does not apply to geologically sensitive areas, flood-prone areas, fish and wildlife habitat conservation areas such as streams, and areas where water drains rapidly into an underground aquifer.

For example, under the proposed critical areas ordinance, the standard buffer for a wetland that has high habitat function might be 300 feet when a high-intensity land use, such as residential development on one acre or less, is proposed.  In that case, a landowner who opts not to hire a wetland expert to delineate the wetland must stay 450 feet from the outer edge of the wetland.  A related discussion is who would pay for the initial wetland assessment — the county or the property owner.

According to Peters, the DOE guidelines that would be incorporated into the ordinance are more complex than current county standards, but also more flexible.  Wetland buffers might increase or decrease from current standards, depending on the land use proposed and the functions and values of the specific wetland.

In East Jefferson County, the typical freshwater wetland would probably be rated as moderate-value habitat, according to Donna Frostholm, a part-time wetlands specialist at the Department of Community Development.  Land with a wetland of moderate habitat value that would be used for a moderate-intensity land use, such as a single-family home on greater than one acre, would likely require a 110-foot buffer in the county's current regulations.

A person seeking a county approval to construct a building may be allowed to apply a smaller buffer through a habitat management plan that addresses how the resource will be protected.  The county also offers a "reasonable use variance" for land where critical areas severely constrain it use.

 

PT Council debates I-933 forum

The following article appeared in the September 7, 2006 Jefferson County edition of the Peninsula Daily News.

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PT Council debates I-933 forum

By Jeff Chew
Peninsula Daily News

PORT TOWNSEND — City leaders were setting up a "bully pulpit" by even suggesting that the city sponsor a public forum on the Property Fairness Act, a city councilman argued.

"The place for debate is the ballot box," Geoff Masci told Council members during a lively Council debate late Tuesday night on setting up a public forum on Initiative I-933.

The initiative — which would require government to pay compensation for regulations that devalue private property — goes to voters Nov. 7.

It requires compensation if any portion of private property is required to be left in a natural state, such as a buffer requirement in a plat, Watts said.

Debate about forum

Tuesday night's Council discussion was punctuated by comments from I-933 supporters in Jefferson County, including Chimacum farmer Roger Short, real estate agent Richard Hild and Jim Hagen, Jefferson County Republican Party vice chairman.

Hild said Masci's remarks were "right on the mark."

"Government has the ability to pass rules and more rules . . . without ever informing the public affected by those rules," said Hild.

Supporters remarks were countered by Port Townsend environmental activist Nancy Dorgan, who said she supported getting the message out to voters.

"This is the most extreme threat to our environment the state has ever faced," Dorgan said.

Masci made his remarks after City Attorney John Watts gave an overview of the initiative, calling it "ambiguous in many areas."

Masci said Watts cited information from the Association of Washington Cities, which has a "vested interest" in the issue as a lobbyist group for municipalities statewide.

Councilman Frank Benskin said he also saw Watts' presentation as one-sided.

Watts said the Council's options could include conducting a public hearing or forum, or even adopting a resolution on where the body stands on the matter.

Both Mayor Mark Welch and Councilwoman Michelle Sandoval said they merely wanted a hearing or forum to help educate and engage voters.

"I asked John (Watts) to provide us information on how to hold a public meeting," Sandoval told Masci, explaining part of the reason the initiative was again brought before the Council after initial discussion in August.

Hagen, however, contended that if education was the aim, then Watts should have mentioned the benefits of I-933.

"There are increasing gaps between government and people," said Hagen.

Short, who last spring rallied county farmers to park their tractors in front of the Jefferson County courthouse against proposed county critical areas proposals, said monetary compensation is not the only option under I-933.

"It can be a mitigation or a waiver," said Short.  "I feel I-933 is a very middle-of-the-road type initiative."

Councilwoman Catherine Robinson said she believed a forum sponsored by the League of Women Voters of Jefferson County would be more appropriate.

"I'd really like to see a forum on this but I don't think the city should hold such a forum," said Robinson.

Councilwoman Laurie Medlicott agreed that she did not see such a forum within the city responsibilities.

Indeed, the Jefferson County League of Women Voters is scheduling an I-933 forum on Sept. 27.

Councilman Scott Walker said he saw a forum as an opportunity for the Council to take a stand on the issue.

"(The initiative) says that cities don't have a right to regulate for the common good," said Walker.

Watts cited information form the Association of Washington Cities, which estimates statewide expenses for compensation and other related costs at between $3.5 billion and $4 billion.

He said the initiative's definition of "damaging use or value" of private property is "extremely broad."

"In conclusion, I-933 is ambiguous in many areas, such as the scope of the laws covered, what laws are exempt, and the scope of a city's waiver authority," Watts stated in his memo to the Council.

"From those who have studied the initiative, it is difficult to to know the impact of what is being voted on.

"What appears certain is that there will be significant costs to jurisdictions to respond to I-933 and that the courts will be involved in determining when government should compensate property owners, and to what extent."

Jefferson County Editor Jeff Chew can be reached at 360-385-2335 or jeff.chew@peninsuladailynews.com.

Critical areas process linked to agenda issue

The following article appeared in the September 6, 2006 edition of the Port Townsend & Jefferson County Leader.

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Critical areas process linked to agenda issue

By Barney Burke
Leader Staff Writer

Jefferson County's draft critical areas ordinance in effect establishes a default buffer of 450 feet from sensitive environmental features such as wetlands.  As written, property owners who want to build something or change the way they use their land within 450 feet of a critical area cannot do so unless they hire an expert to demonstrate that the project will not damage the critical area.  Those who cannot or choose not to pay for an expert must not encroach on the 450-foot distance.

The ordinance has been influenced by two agreements between the county and the Washington Environmental Council (WEC), a state-wide environmental group that includes the Olympic Peninsula-based Olympic Environmental Council.  WEC has contested the county's land use regulations before the Western Washington Growth Management Hearings Board.

In January 2006, WEC and the county signed an agreement whereby the county is to confer with WEC in adopting and implementing regulations for critical areas.  The agreement also provides that WEC can seek additional regulatory requirements with respect to agricultural exemptions "if it concludes that the voluntary compliance program is failing to meet its (WEC's) objective to pro0tect wetland and fish habitat areas from impacts related to agriculture."

After reviewing public records, Belenski concluded that WEC had eight months (April through December of 2005) to negotiate with the county and provide a checklist it wanted the county to use.  After the second agreement was signed, the county spent about six months preparing for the June 20 hearing where farmers and other landowners protested.

"The farmers didn't get to give one of those [checklists]: I didn't get to give one of those," said Belenski.  "The public got one ceremonial meeting."

Belenski finds it ironic that the agreement with WEC states that "The county will commit staff and resources to collaborate with other stakeholders" when many of those stakeholders, particularly farmers, have complained that they were given no meaningful opportunity for input prior to the county's attempt to adopt the CAO on June 20.

Commissioner Phil Johnson (D-Port Townsend) said that it took longer than expected to prepare the draft ordinance, leaving elected officials — and opponents — without enough time to review it.  "I think we're listening to everyone," said Commissioner David Sullivan (D-Cape George).

The county and WEC had agreed to adopt the CAO by June 18, 2006.  After loud protests from the public, the county extended the deadline to Jan. 18, 2007, and is working with people who want input in the process.

Belenski's suit seeks to nullify the county's agreement with WEC.  But he cautions that even if he wins, WEC can still make its case to the Western Washington Growth Management Hearings Board, and his lawsuit might not directly affect that body's proceedings.

County sued over meetings

The following article appeared in the September 6, 2006 edition of the Port Townsend & Jefferson County Leader.

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County sued over meetings
Decisions leading to critical areas ordinance are questioned

By Barney Burke
Leader Staff Writer

A lawsuit alleging that Jefferson County has violated the Washington Open Meetings Act raises questions about a series of actions that led to the draft critical areas ordinance opposed by some farmers and property rights advocates.

Acting as his own attorney, Mats Mats resident Mike Belenski filed suit in Clallam County Superior Court Aug. 28.  According to the suit, he alleges that Jefferson County violated the Open Meetings Act and other state laws by not giving adequate notice and agendas for meetings, making decisions in executive sessions, changing agendas retroactively, and approving minutes that made no mention of actions taken on topics such as gravel mining and the Port Hadlock sewer project.

Chief Civil Prosecuting Attorney David Alvarez said Tuesday that the suit has "no merit."

The suit asks the court to nullify the county's agreement with the Washington Environmental Council, a statewide environmental group that has been a primary influence in the draft critical areas ordinance (CAO).  It also asks that the court order the county to disclose the names of lawsuits discussed in executive sessions on litigation, to follow its own rules on meetings, and to create written minutes for all meetings since Jan. 1, 2005.

Belenski, 49, said he has no financial or personal interest in the critical areas ordinance, and that he has not been working in concert with its opponents.

"I'd never heard of that," Belenski said of the critical areas ordinance.  But two days before the June 20 public hearing when farmers drove tractors to the courthouse in protest, someone called him at home and urged him to attend.  "How can you sit and do nothing?" he thought.

"Then I started turning in public records requests," said Belenski.

Whether or not he prevails in court, Belenski thinks  he's already had an effect on the county's meeting procedures.  "You can make a difference if they know that you're watching 'em," he said.

Monday, Tuesday

Belenski made his first request related to the CAO on June 26, and since then, the county has not conducted a Board of Commissioners meeting on a Tuesday.  Belenski's suit argues that the county's long-standing practice of having a board meeting on Monday and a second one on Tuesday violates the state Open Meetings Act.

"Anybody who's sitting there Monday morning's got no idea that they're gonna reconvene and take action on Tuesday," said Belenski.

But attorney Alvarez said that whenever the county commissioners have met on a Tuesday, it has been properly noticed on the Monday agenda.

"Maybe it's a coincidence that those Tuesday meetings stopped the same week plaintiff made his request," Belenski wrote.

"It's definitely a coincidence," said John Fishbach, county administrator.  Fishbach said it was his own suggestion that the meeting be consolidated to Mondays, and Commissioners Phil Johnson and David Sullivan confirmed his explanation.  Commissioner Pat Rodgers is out of town this week.

Agenda, minutes

When Belenski started checking printed agendas he received in response to records requests with agendas posted on the county's website, he learned that they are not the same.  The website posts the agendas in their original form, and then an "indexed agenda" is subsequently made, which includes items added.

"It's more informative," said Alvarez of preparing revised agendas.

On Feb. 22, 2006, the board approved a letter supporting new surface mining regulations that was not on the agenda, according to Belenski.  The suit notes that representatives of Fred Hill Materials and opponents to the company's planned pit-to-pier sand and gravel mining project attend virtually all Monday meetings, but apparently were not in attendance on that Tuesday.

The original agenda for a Dec. 6, 2005 meeting reportedly made no mention of an executive session that occurred that day, according to the suit.  "To document this executive session, the commissioners retroactively altered the Monday, Dec. 5, 2005 agenda that was previously provided to the public in an attempt to legitimize the existence of an executive session that took place after the Monday meeting had taken place," he claims.

Belenski also listened to audio recordings of meetings and compared them to the official minutes and found that some topics were not on the original agenda, nor in the meeting minutes.

The minutes of March 15, 2005 report that the commissioners approved letters of support for a grant concerning Tamanawas Rock and utility tax legislation.  According to the lawsuit, the tape of that meeting reveals that the commissioners also discussed and acted on the county budget, the Hadlock sewer project, and the WRIA 17 water rights regulations.

The issues left out of those minutes are important to the public, Belenski said.  "I don't want them (the commissioners) to decide what's good for me to know."

State rules loose

Commissioners Johnson and Sullivan, attorney Alvarez and clerk Lorna Delaney all said that it is the county's practice to include every "motion" or action in the minutes of every meeting.

Nancy Krier, senior assistant attorney general, told The Leader that state law requires that minutes be kept and made available to the public, but does not specify their content or format.  The state Attorney General's Office advises agencies to record all motions in minutes, but notes that advice is not binding, she said.

Violations of the Open Meetings Act can bring a fine of $100 per person per incident, but Belenski noted that a judge must find that a commissioner "knowingly" violated the law in order to impose a fine.

Belenski said he might amend his complaint if more information comes to light, and he's planning to file interrogatories with the court so he can ask county officials about "what they knew and when they knew it."

"I'm still diggin'," said Belenski, who said he has no plans to seek elected office.

(Contact Barney Burke at bburke@ptleader.com.)