Monday, February 19, 2007

Critical areas rewrite enters home stretch

The following article appeared in the February 19, 2007 Jefferson County edition of the Peninsula Daily News.

Critical areas rewrite enters home stretch
Draft expected Thursday with dissent report

By Evan Cael
Peninsula Daily News

PORT HADLOCK — A group of volunteers charged with suggesting changes to Jefferson County law that affects environmentally sensitive areas such as wetlands are preparing to write their final recommendations.

Four members of the 18-member critical areas panel don't agree with the majority and plan to issue a minority report on Thursday.

Also on Thursday, the panel will select a subcommittee to tackle writing the group's recommendations in legalese - without help it said was expected from the county Department of Community Development.

The meeting will be at 7 p.m. on Thursday at the Washington State Extension Learning Center Madrona Room, Shold Business Park, 201 W. Patison in Port Hadlock.

"Jefferson County has not fulfilled its part of the bargain," said Ken Brooks, a wetlands scientist on the panel, last Thursday.

"I move that we establish a code writing subcommittee to do the county's work."

The advisory group, which includes four planning commissioners, was formed in August after a critical areas ordinance proposed in May drew public criticism.

The biggest outcry was against a portion of the law that would change the buffer zones around wetlands.

In many cases, the required buffer zone around wetlands would be larger than had been legally required before, thus cutting the amount of private property that could be developed.

Once the Planning Commission has the advisory group's recommendations, it will go over them and put together its own recommendation to the Jefferson County board of commissioners.

The commissioners have a mid-October deadline to adopt the revisions to the critical areas ordinance.

Jefferson County Commissioner John Austin, D-Port Ludlow — one of three commissioners who will consider the final version of the legal changes — said that the minority report "might well be" more representative of all county residents than the majority report.

Austin said last week that the committee itself was not representative of the county.

"It was basically selected by Jim Hagen during a public meeting," said Austin, a Democrat.

"I don't know if [the committee] represents the majority of citizens in the county."

Hagen, a Republican, is the Planning Commission chairman and the chairman of the critical areas subcommittee.

Hagen said that sufficient notice was given about the Aug. 2 Planning Commission meeting at which the volunteers were chosen.

Hagen said he chose everyone who volunteered.

"I think it's very representative," Hagen said of the committee.
"It was based on the public response to this issue, which is really the only definitive way to judge it."

Wants help

The critical areas group agreed to take on the task of writings its recommendations “in code” — language appropriate for a legal ordinance.

The advisory group — which has been meeting weekly since Aug. 10 — is expected to deliver its recommendations to the full nine-member Jefferson County Planning Commission by April 1.

But a contracted worker to assist the group in writing the recommendations in “code language” will not be available until March, said Brent Butler, lead planner with the Department of Community Development.

Two weeks would not be enough time, the group decided.

So members voted to do the job themselves and form a code writing subcommittee.

Austin said he didn’t believe the committee needs to write the recommendations in code language.

“I can see why, with all the time they’ve put in, there’d be e pretty low threshold for frustration,” Austin said.

But, “their mission is to advise the Planning Commission, not produce code in its polished form.”

“It’s possible that they’re feeling they’re being required to do more than they’re actually required to do.”

Al Scalf, director of the Department of Community Development, said the reason he plans to hire a contracted worker to help the critical areas advisory group write code is because his department is understaffed and already devotes 112 hours a month to the critical areas group.

The person he had in mind, Eric Toews with Cascadia Planning, won’t be available until mid-March, he said.

Another contracted expert might become available sooner, but, Scalf said, he is not counting on it.


Reporter Evan Cael can be reached at 360-385-2335

Saturday, February 17, 2007

The Fine Line Between Compliance and Defiance

The Fine Line Between Compliance and Defiance
A few thoughts from Norman MacLeod

When government develops public policy to deal with natural resource issues, such as the protection of critical areas, there is a risk that human needs will not be recognized as having sufficient importance to be included as key factors when deciding the degree of regulation to be applied in protecting habitat and other values of those critical areas. When people perceive the resulting ordinance or rule as being too onerous, they may find it necessary to choose between willing compliance with the regulations or quiet defiance of them.

Today, many of our rural home and landowners find themselves standing at that fine line between compliance and defiance. They are not the first to stand there. It’s a place where change is born, and crossing that line has led to some of history’s most significant turning points. They include, but are not limited to:

· The Protestant Reformation
· The Magna Carta
· The Declaration of Independence
· The Underground Railroad
· The women’s vote
· Ghandi, whose nonviolent defiance brought down the British Empire
· Rosa Parks, whose refusal to move to the back of the bus inspired a movement
· Martin Luther King, whose articulate nonviolence led to the Civil Rights Act
· Billy Frank, whose insistence on exercising his treaty rights led to a transformation of fisheries policies and how we view treaties between the United States and the Tribes.

Each of these turning points was initiated by either an individual or by a small group of people who felt they had finally been pushed too far by massive self-serving institutions that were oppressing them and people like them. None of them gained the public support of those institutions easily, but all of them eventually did.

When we develop public policy designed to protect wildlife habitat and other critical areas of our landscapes, we are materially affecting the lives, aspirations, and opportunities of the people who live there. In many instances, those policies are set by government officials who do not live in areas where the rules and regulations will be implemented. Because their assigned goal is to protect the critical areas, wildlife habitat, and the environment in general, the people who will be most impacted are often relegated to the back of the bus.

The regulatory frameworks coming out of these public policy exercises are often touted to provide a wonderful public good. However, the costs of providing that public good is laid solidly on the shoulders of a small minority of the population, the rural home and landowners. Bearing the financial and regulatory burden of the regulation, they become rather less than happy campers.

Good public policy in regulating human activities in the rural landscape results in a shared onus between the rural landowners and their urban counterparts. The financial burden of these regulations should be shared evenly across the entire population. Unfortunately, good policy in this light is extremely rare.

Finding themselves unfairly burdened, and unable to find a way to change the situation, many people who would otherwise be fully law-abiding citizens will find it necessary to bend or ignore those rules that make it impossible to do what they feel needs to be done in order to care for their property and enjoy its use. This is where they step over the line from compliance to defiance. For most, it is not a comfortable place to be, and they don’t enjoy being there, but sometimes you have to do what you have to do.

Let’s take the example of a family who doesn’t have a lot of money, and is heating their home with wood. They don’t have enough disposable income to upgrade to a certified wood stove or furnace. A cold front comes in, a temperature inversion develops, and the Clean Air Board temporarily bans the use of uncertified wood stoves and furnaces. Faced with the option of complying with the law and seeing their kids shiver, or breaking the law and having their children be warm, what do you suppose this family will decide to do?

Let’s say that this same family comes into enough building materials and money to be able to add onto their home a few months later. A couple of weeks before they are going to begin, a pair of eagles comes along and starts building a nest within a hundred feet of the house. What do you think is going to happen? Given the fact that eagles successfully raise their young next door to the hospital in Port Townsend, where their nest occasionally gets rocked by the rotor wash from helicopters, does it make a whole lot of sense to prohibit building activity at this family’s home?

Many of today’s land use regulations appear to be based firmly on a notion that home and landowners simply cannot be trusted to provide adequate stewardship of their properties without the “assistance” of a dog’s breakfast of rules, many of which seem to be rooted in academia rather than on-the-ground reality. While this may seem a harsh assessment to those making the rules, it does reflect the perception of property owners, particularly those who live in our countrysides. For a large share of those landowners, that perception is their reality.

Home and landowners, particularly those living in our rural areas, experience of land use regulation is that there is a complex web of rules that gradually become ever more confining. Urban homeowners often come away from the permit center with the same impression. The increasing pace of new rules today comes across as what you might think of as regulatory galloping goalposts. There is never any certainty that today’s rules will be deemed adequate by “the wise” at the next review of an ordinance, and this uncertainty drives unintended consequences to the fore.

The net effect of this process can easily become apparent in the form of environmental degradation. When forest landowners become concerned that they will not be allowed to harvest their trees in a few years, they are going to harvest sooner rather than risk not being able to harvest at all. Large forest landowners then seek to subdivide to sell large lots to new owners, convinced they will never be allowed to harvest again.

In a time when activist groups are attempting to convince local jurisdictions to include the presence of lights, noise, and pets as factors justifying factors for increasing buffer widths, requiring large pasture acreages per animal unit on the property, and generally micromanaging human activities in our landscapes, the people being managed feel threatened. When policy-makers develop rules adopting the activists’ prescriptions in order to avoid litigation, the citizens are likely to respond by simply not complying with the new restrictions.

The people suffering the weight of land use restrictions on their use of their property are increasingly turning to the courts for relief because they feel that their local governments are not willing to listen or work with them. It’s an expensive and extraordinarily time consuming option, but often the only form of redress open to them. So, in many places around the nation, home and landowners are banding together to share the costs of litigation. This way, or through the assistance of public interest law firms that are qualified to manage cases from the local level all the way to the U.S. Supreme Court, they are able to bring their voices and concerns to an imperfectly balanced playing field.

Having learned that getting favorable legislation passed is often only the first round in a complex process, more local and state governments are being offered the choice to be sued by one or more activist organizations, or by their own citizens.

Meanwhile, whether in town or out in the countryside, individual home and landowners are facing the choice of whether to comply with or whether to defy individual provisions of overly onerous rules and regulations. This fraying around the edges of the rule of law is not a good thing, but it is a reality . . . and in most cases, it’s an avoidable reality.

First, before entering into a regulatory process, government should be able to demonstrate that a problem needing a solution actually exists. The nature and scope of the problem should be confirmed by empirical science.

Next, government needs to notify the people whose activities will be regulated of the intent to regulate. This notice should be sent individually by mail to every citizen who will be affected by any new regulations. These people should also be invited to participate in the process of developing solutions to the identified problem(s).

Third, every effort should be made to solve the identified problem(s) through education and voluntary programs.

Finally, if education and voluntary programs do not provide an adequate solution, a regulator framework can be put in place as the last resort. The process of developing such regulations not only needs to take place in the public space, but it also needs to involved the full participation of agreed upon stakeholder representatives from all groups that will be directly impacted by the regulations.

The financial burden of providing a public good through regulation should then be born by society as a whole, so the individual landowner does not have to bear a disproportionate share of the load.

If this general process is followed, there will be a greater chance that those impacted by the regulations will be more willing to stay on the compliance side of the line, rather than crossing over in defiance.

We can have excellent ecosystem protections while also allowing home and landowners full exercise of their property rights. We can enlist the support and assistance of those landowners through an imaginative and effective combination of education, incentives and collaborative projects. The alternative is an onerous, burdensome regulatory environment which will be observed more in defiance than compliance, and watch our ecosystems go into decline in an angry and confrontational atmosphere.

Compliance or defiance. It’s a choice that we are making at every level, whether we have been aware of doing so or not.

Compliance or defiance. Which are we going to choose?

Thursday, February 15, 2007

Planning commission appointments get political

The following article appeared in the February 14, 2007 edition of the Port Townsend and Jefferson County Leader.

Planning Commission appointments get political
Just in time for CAO decision, it’s Democrats’ turn to choose

By Allison Arthur
Leader Staff Writer

Two Republican Jefferson County Planning Commission members might lose their seats because their terms have expired and three Democrats are now making the appointments.

Jim Hagen and Dennis Schultz, both Republicans, were appointed to the advisory board when the BOCC was composed of three Republicans. Schultz and Hagen have reapplied, but Democratic commissioners David Sullivan, Phil Johnson and John Austin opted Monday to extend the application deadline until 5 p.m. Friday, Feb.23.

Although it’s not the first time the political pendulum has swung in terms of advisory board appointments, it comes at a time when the controversial Critical Areas Ordinance is being crafted.

As of Tuesday morning, Schultz and Andrew Redling had applied for a seat representing District 1 (Port Townsend. Hagen, Dennis Burke and Pat Farmer had applied for a seat representing District 2 (Tri-Area). The four-year terms of those seats expire March 17.

Planning commission member Bill Miller, a Democrat, asked commissioners to continue accepting applications, while planning commission member Bud Schindler presented commissioners with a petition signed by five of the nine commission members urging the board to reappoint Hagen and Schultz. Hagen and Schultz abstained from signing the petition.

Despite support for Hagen and Schultz from other planning commission members, the BOCC decided to accept applications but not readvertise the two openings.

“The fix is in,” commented Richard Hild, a real estate broker and political observer who submitted a petition signed by about 64 people who also support Hagen and Schultz.

Commissioner Phil Johnson said after the meeting that he was concerned about Hagen and had received comments about Hagen specifically.

“I’ve been concerned about the way the Critical Areas Ordinance subcommittee was picked, and the imbalance of it and the fact that Jim put himself on as chair of that committee,” Johnson said. Johnson had not heard concerns about Schultz.

District 2 commissioner Sullivan also had previously expressed concern about the way Hagen conducts planning commission meetings.

“I think we need to keep the politics out of the planning commission if possible and have them tryly represent the citizens of Jefferson County,” Sullivan said Tuesday. He said he has seen some meetings conducted by Hagen, and he did not think they were well run.

“Planning commissioners set the tone of the meeting, and I think I would look for a tone that sheds more light and less heat,” Sullivan said.

Even before the BOCC meeting began on Monday, the planning commission appointments were the talk of those waiting, including Hagen and Schultz, who wondered whether they would be reappointed.

“Dennis is the only voice for terrestrial farming,” Hagen said of Schultz.

Schultz estimated he has put in 1,500 volunteer hours on the planning commission since being appointed by Republicans Glen Huntingford, Dan Titterness, and Pat Rodgers.

Schultz also received an award last year from Gov. Christine Gregoire’s office for his work on a new agriculture code for Jefferson County. Schultz said he had a choice between accepting the award and attending a meeting to discuss the county’s CAO. He chose the CAO meeting.

Hagen estimated he has put in more than 1,000 hours since being appointed by the Republicans three years ago.

It was also noted by Hagen that Hagen and Schultz had been the only ones who had expressed an interest in the planning commission seats until Katherine Baril of Washington State University Extension sent out an e-mail the day before the deadline, advising people of the two openings.

Baril said Tuesday that WSU trains volunteers, maintains a list of volunteers, and sends out notices of positions regularly. “We’ve done this before on many positions,” Baril said, adding that it was the second notice she had put out about the vacancies.

But at the meeting on Monday, there were questions about whether she did that at the request of commissioners. She said she did not receive such a request.

“It raised questions in my mind of political games,” said Norm MacLeod, who voiced support for Hagen and Schultz and questioned why the BOCC would continue to accept applications. He suggested the board was “trolling” for candidates by doing so. He also likened it to changing horses in the middle of the stream, referring to the continuing work on the controversial CAO.

Several others spoke of the upcoming land-use issues slated to come before the planning commission this year.

Hild said the county would get either “compliance or defiance” from landowners, and he said landowners support Schultz and Hagen “because they feel they’ve gotten a fair shake.”

There also has been e-mail correspondence to commissioners about the appointments.

Dr. Kenneth M. Brooks, who has been working with the planning commission, also wrote a letter endorsing Schultz and Hagen. He lauded the men for their leadership and innovative approaches.

“Their continued contribution, as members of the planning commission, is considered essential to further completion of a model ordinance that will be protective of our critical areas and seen as legitimate by Jefferson County’s citizens.” Brooks wrote.

Teri Nomura, Jefferson County Democratic Party chairwoman, told The Leader that appointments are up to the BOCC.

“It makes sense that if you have a more liberal commissioner they would want the advice of a more liberal planning commission,” Nomura said. “But with the structure that’s already there, they will actually have a balanced planning commission.

Tuesday, February 13, 2007

Democratic panel may nix terms for GOP planners

The folloowing article appeared in the February 13, 2007 Jefferson County edition of the Peninsula Daily News.

Democratic panel may nix terms for GOP planners

By Evan Cael
Peninsula Daily News

PORT TOWNSEND — Several residents and colleagues rallied Monday behind the reappointment by the all-Democratic Board of County Commissioners of two Jefferson County planning commissioners who are Republicans.

Jim Hagen, the Planning Commission chairman, and member Dennis Schultz have requested reappointments.

Their four-year term expires March 17.

The Planning Commission is an advisory board to the county commissioners, and its members are appointed by the three commissioners.

At Monday's commissioners meeting at the county courthouse, Planning Commissioner Bud Schindler handed them a petition signed by five of the nine planning commissioners supporting the reappointment of Hagen and Schultz.

Period extended

The county commmissioners also are considering four other applications for the seats held by Schultz and Hagen in commissioner Districts 1 and 2, respectively.

The deadline to receive applications was last Friday, but the county commissioners voted unanimously Monday to extend the application period until Feb. 23.

"We still have applications coming in, and there is no urgency," said County Commissioner David Sullivan, D—Cape George.

"I'm leaning toward not reappointing (Hagen and Schultz)."

Both County Commissioners Phil Johnson, D—Port Townsend, and John Austin, D—Port Ludlow, said they will wait and see what their qualifications are before deciding appointees to the two positions.

Hagen, vice chair of the Jefferson County Republican Party who lives in Cape George, said he's volunteered about 1,000 hours during the past three years as planning commissioner.

"It's going to be a very dynamic year for the Planning Commission," Hagen said.

He cited the critical areas ordinance, shoreline master plan, proposed Black Point master plan resort at Brinnon, an industrial land bank and about 15 expected comprehensive plan amendments.

'Experience important'

"With that kind of workload, experience is going to be important," Hagen said.

Schultz mentioned in his letter seeking reappointment that he earned the county an award from Gov. Chris Gregoire last year for authoring the county's agriculture unified development code update.

He pointed out he is the only planning commissioner ever to be so recognized.

"I have a very strong interest in agriculture and small farming in the county." Schultz said.

Planning Commissioner Bill Miller, an active Jefferson County Democrat, addressed the county commissioners at their Monday meeting.

"Even though I recognize the experience of the two planning commissioners, their terms are expiring,"  Miller said.

He suggested the county commissioners extend the application deadline, which they did.

Resident Richard Hild presented a petition with about 65 signatures in support of Hagen and Schultz.

And the commissioners said they received several e-mails also in support of both men.

The commissioners will conduct open interviews in the coming weeks during their regular Monday meetings for those who have applied.

For residents living in Districts 1 and 2 interested in applying for the non-paid seats, write county commissioners at P.O. Box 1220, Port Townsend, WA  98368 or e-mail them at

Reporter Evan Cael can be reached at 360-385-2335