BSH comment letter to Planning 3-29-12

8/2/2019 BSH comment letter to Planning 3-29-12

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Bainbridge Shoreline HomeownersPO Box 10034

Bainbridge Island, WA 98110(206) 842-4127

City of Bainbridge IslandPlanning Commission270 Madison Avenue NBainbridge Island, WA 98110

March 29, 2012

To: The Planning Commission

Re: Comments on the Draft SMP

Attached is a petition containing just short of 1000 signatures of shoreline property owners. Thisnumber of signatures represents a large proportion of the shoreline property taxpayers and voters.The views of the signatories should be considered seriously and thoughtfully. The petition simplyurges the city to adopt a Shoreline Master Program that follows state laws while protecting theenvironment and citizen’s shoreline property rights.

The issues in the petition are addressed below. The Draft SMP is in blue . The language in red isconsistent with the statements in the petition.

1. The SMP update must declare existing, lawfully built homes to be “conforming” structuresas per SSB 5451 .

4.2.1.2 Goal: Nonconforming Development

It is the purpose of this program to recognize legally established primary residentialstructures, and to allow them to be maintained, repaired, remodeled, replaced and in somecases expanded in conformance with these rules. Residential structures that do not conformto this program should, over time as the owner proposes changes to the structure, conform ascompletely as possible to this program, with due regard to unique site conditions andproperty rights .

4.2.1.3 Policies

1. Lawfully constructed residential structures shall be allowed to be repaired, maintained,expanded, or remodeled provided that the expansion does not increase the nonconformity.

RCW 90.58.100 The Shoreline Management Act (SMA) states that shoreline modification is tobe expected and requires a balance of private property rights with ecological protection.The SMA also lists “single family residences with their appurtenant structures” as the first of the State’s priority uses of its shorelines.

Senate Bill 5451 was passed by the legislature and signed into law by the governor. It statesthat local jurisdictions may declare existing, lawfully built homes and their “appurtenant



structures” to be conforming in updated Shoreline Master Programs. (“Appurtenant structures”are defined as garages, sheds, and other legally established structures, but they do not includebulkheads and other shoreline modifications or over-water structures.)

Since “no net loss of ecological function” starts on the day the SMP update takes effect,existing structures— including bulkheads and docks — cannot cause a loss.

Changes that would be consistent with the petition:

· Explicitly state that existing, lawfully built homes are conforming.· Remove all references to non-conforming in the policies and regulations.· Allow existing, lawfully built residential structures to be expanded with proportional

mitigation if the expansion is within the shoreline buffer.

2. Any New regulations, including vegetation buffers, must apply to future development only.

4.1.3.4 Vegetation Management Regulations—Exceptions

1. Vegetation management standards shall not apply retroactively to existing legallyestablished uses and developments, including maintenance of existing residentiallandscaping, such as lawns and gardens. Property owners are strongly encouraged tovoluntarily improve shoreline vegetation conditions over the long term.

2. The City shall recognize and adhere to existing buffers and setbacks that have beenestablished through previously approved subdivisions and are indicated on the face of anapproved plat.

4.1.3.4 Vegetation Management Regulations-Exceptions

1. Vegetation management standards shall not apply retroactively to existing legally establisheduses and developments, including maintenance of existing residential landscaping such as lawnsand gardens. Property owners are strongly encouraged to voluntarily improve shorelinevegetation conditions, including the use of natives over the long term.

2. The City shall recognize and adhere to existing buffers and setbacks that were approved in the1997 SMP.

3. Shoreline armoring regulations must balance the need to protect private property fromerosion with the positive effects of onsite mitigation or participation in restorationprograms at other locations in the city.

6.2.3.4. Shoreline Stabilization Policies.

Structural shoreline stabilization should be permitted only when it has beendemonstrated that shoreline stabilization is necessary for the protection of existinglegally established structures, primary uses or public improvements in danger of loss,and when it can be demonstrated that there are no alternative options to the proposedshoreline stabilization that have less impact on the shoreline environment.



Residential uses are a preferred use under the DOE Guidelines. Regulations should allow for property owners to take necessary and reasonable steps for the protection of propertysurrounding an existing, lawfully built residential structure.

.

6.2.7 Regulations - Repair of Existing Structural Stabilization

1. The City shall allow repair of soft-treatment stabilization.2. Repair of existing structural stabilization shall be allowed when:a. Failing, damaged structural stabilization may be repaired up to 50% of the linear length. Repair area that exceeds 50% shall be considered a replacement.b. Repairs may require mitigation pursuant to Section 4.1.2, Environmental Impacts.c. Repair applications shall be considered with cumulative approvals of eachsuccessive application within a five year period to ensure that the repair continuesto fall under the 50% repair threshold.

6.2.7 Regulations - Repair of Existing Structural Stabilization1. The City shall allow for all necessary and reasonable actions to repair the existing stabilizationfor existing, lawfully built residential properties.2. The City may require mitigation if a repair causes a net loss of ecological function. The burdenof proof is on the City to demonstrate this net loss.

6.2.8 Regulations – New or Replacement Structural Stabilization

1. When evaluating the need for new, expanded or replacement structural stabilizationmeasures, the Administrator shall require the applicant to provide an analysis thatexamines and implements alternatives in the following order of preference sequence:

4. Any measure of “cumulative impacts” must account for restoration and mitigation projectsundertaken by individuals, nonprofits and government entities.

and

5. New regulations must fairly allocate the burden of addressing “cumulative impacts” of predicted future development.

WAC 173-26-201 (3)(d)(E)(iii) states, “The principles that regulation of development shall achieveno net loss of ecological function requires that master program policies and regulations addressthe cumulative impacts on shoreline ecological functions that would result from future shorelinedevelopment and uses that are reasonably foreseeable from proposed master programs....”

4.1.2.3.4 In assessing the potential for new uses, activities and developments to cause adverseimpacts, the City should take into account all of the following:a. Effects on ecological functions and ecosystem processes; andb. Effects that occur on-site and effects that may occur off-site; andc. Immediate effects and long-term effects; andd. Direct effects and indirect effects of the project; and



e. Individual effects of the project and the incremental or cumulative effects resultingfrom the project added to other past, present, and reasonably foreseeable future actions; and

f. Compensatory mitigation actions that offset adverse impacts of the developmentaction and/or use.g. Any assessment of cumulative impact will take into account restoration and mitigationaccomplished by individuals, nonprofits and government and quasi-governmental entities.

6. Except in Aquatic Conservancy Areas, docks and floats must be permitted if they followWDFW and Army Corps of Engineers specifications .

6.3.1 Applicability

Uses which may employ a pier or dock are subject to the provisions herein as well as to theprovisions contained in Section 5.0, Specific Shoreline Use Policies and Regulations.Community or joint-use docks which provide moorage for six (6) or more vessels also mustcomply with the provisions of Section 5.3, Boating Facilities.Pursuant to RCW 90.58.030(3(e)(vii), and its successor, and WAC 173-27-040(2)(h), and itssuccessor, certain activities are exempt from obtaining a Shoreline Substantial DevelopmentPermit (SSDP). For the benefit of the lot owner, surrounding properties, and water body users,the City will review all proposals for piers and docks to determine whether:

1. The proposal is or is not exempt from the requirements for a shoreline permit;2. The proposal is suitably located and designed and that all potential impacts have beenrecognized and mitigated; and3. The proposal is consistent with the intent, policies, and regulations of the Act[RCW90.58.140(1) or its successor] and this program.

4. A proposal that is consistent with WDFW and Army Corps of Engineers specifications shall

be permitted. Upon a documented showing by the city that specific characteristics are presenton a property, (a list of specific characteristics would be inserted here based on the Herrerarecommendations,) certain conditions may be required. The property owner may challengethe documentation by retaining a licensed professional in an applicable marine discipline. Inthe event of a disagreement between the city and the applicant, a mutually acceptable neutralthird party may be retained. The losing party must pay for all consultants.

7. Encourage the State of Washington to establish a senior level, peer review panel of scientists, separate from the DOE to assist the City in the preparation of future SMPUpdates.

Qualifications must include individuals who are currently active in marine shoreline disciplines whohave an appropriate and relevant Masters degree or better from an accredited university. Anyresearch used to support policies or regulations of the SMP must be salt-water based, relevant toPuget Sound and properly peer-reviewed.

8. Properties containing existing, lawfully built residential structures may not be included in a“Shoreline Residential Conservancy” designation without the Property Owner’s consent.



Omit the Zone 1 and Zone 2 management scheme. It adds unnecessary complexity to Draft SMPand will be confusing to property owners and code enforcement personnel. Just enforce existingbuffer distances as shown below.

Studies used to support larger buffers were in fresh water streams and agricultural conditions.There is not credible support for increasing current SMP buffers. Current SMP buffers supportthe no net loss standard.

Table 4-3 16.xx.xxx Shoreline Buffer Standards Table

Existing Distances fromshoreline to PrimaryResidential Structures

Proposed SMP Draft Buffer

(encompases RPZ and MPZ)Distance from OHWM

Petition Buffers(Current SMP Buffer unlessotherwise noted)-

Distance from OHWMUrban

Median 20.1 feet

25-30 feet 25 feet

Shoreline Residential

Median 60.2 feet

Category A: lots with 65% Canopy Area in Zone 1, OR spit/barrier/backshore, marsh lagoon, or bedrock.Category B: lots with a depth < 200’or High Bank.1. For High bank properties thegreater distance of 50’ from the topof the bluff or the standard shorelinebuffer.2. If adjacent to the Priority Aquaticdistrict then 150’ is required.

Additional Use restrictions for BIMC

Titles 17 and 18 may apply

50-75 feet

50 feet

Residential Conservancy

Note: This category doesnot exist in the current SMP

75-150 feet This environmentaldesignation will not pertain toany existing, lawfully builtresidential structures or appurtenances.

Or Eliminate this category so allresidential areas are

designated ShorelineResidential.

Respectfully submitted by the Board of DirectorsBainbridge Shoreline Homeowners

Documents

BSH comment letter to Planning 3-29-12