Dear Mayor and Council Members,
Should any of the following statements be factual, and I suspect they are factual, the reasons staff gives for the proposed CAO changes are invalid. For the City to proceed would seem ill advised, as the consequences could well be very, very costly.
My request is the Council vote to stop this proposed change right now. Let’s not waste any further resources and energy on an illegal scheme.
If the current 50 foot Native Vegetation Zone buffer exposes the city to liability for illegal taxation, that is what needs changes to bring us into compliance with state law, Tribe requests and judicial findings. To continue to advocate an ordinance change which puts the City further out on a fractured legal limb makes no sense.
I do not want my tax dollars to go towards tilting at windmills. We have far more important needs staring us in the face.
Thank you for your attention and action.
Albert Greiner
Rockaway Beach Road
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Bainbridge has no authority impose buffers on the developed shoreline. Buffers such as the current 50-foot Native Vegetation Zone have been ruled to be an illegal form of taxation by both the Washington State Supreme Court and most recently by the Court of Appeals which struck down the King County CAO vegetation requirement.
court-of-appeals-capr-v-king-county-59416-8
National Marine Fisheries previous designation of all of Puget Sound as critical habitat for Chinook was thrown out by the courts as being unsupported by science. The current NMF designation of Puget Sound as critical habitat for Chinook applies only to new Federal projects and not to Bainbridge or residential use or development.
For habitat to be classified as critical habitat of an Endangered or Threatened Species under the Endangered Species Act, the habitat must have a “primary association” with the species. There is no “primary association” between Chinook and the shorelines of Bainbridge Island and no Chinook spawn in streams on Bainbridge. The streams are too small.
The City of Bainbridge Island has no authority to enforce the Endangered Species Act.
The Suquamish Tribe’s complaint to the Growth Management Hearings Board was only about the lack of vegetated buffers on undeveloped shoreline. It did not refer to the already developed shoreline, or existing homes. PS – Bainbridge already has a 50-foot Native Vegetation Zone on all undeveloped shoreline property.
suquamish-tribe-complaint
The GMA requires the protection of Critical Areas and does not require or authorize the restoration of the Critical Areas or shoreline.
The Shoreline Management Act (SMA) promotes restoration of the shoreline in areas where it is polluted, such as the old creosote plant in Eagle Harbor. But Bainbridge misreads the clear intent of the SMA by interpreting the SMA to require or authorize the removal of single family residences and their recreation areas (front yards, lawns and gardens). Under the SMA single family residences are a “preferred” water-dependant use.
The Washington State Legislature passed ESHB 1933 for the specific purpose of clearly separating the regulation of the shoreline from the GMA and to prevent the Department of Ecology (DOE) from applying GMA regulations and science standards to shoreline. DOE’s laughable Guidance saying ESHB 1933 does not apply to current CAO revisions is just the DOE’s attempt to circumvent the Legislature’s intent.
Engrossed Substitute House Bill 1933
The City of Bainbridge Island does not have the authority to override state law, the SMA, by outlawing new protective bulkheads and by restricting the repair or rebuilding of existing bulkheads.
The Constitutional right to own private property brings with it the right to protect one’s property (land and structures) from erosion and damage. Without the right to protect private property from erosion and damage there is no right own and use private property.
In response to your letter, Mr. Greiner, please consider the degree of erosion of the Rockaway Beach bluff just adjacent to the bulkhead and fill installed to build your home. As you’ve pointed out to the neighborhood association above you, the bluff has eroded a great deal in the time you’ve been there. Some of us living uphill wonder about cause and effect.
In response to the very difficult-to-follow comments following Mr. Greiner’s letter: there is absolutely NO provision anywhere in Ordinance 2008-12 for removal of any existing structure, yard, path, driveway, dock or boat launch on any shoreline property. Please re-read the ordinance carefully. You’ll feel a lot better.
Thank you for your comment, Ms. Wright. You are correct to say that the proposed ordinance doesn’t explicitly state that existing structures must be removed. It is more subtle than that.
Regarding bulkheads, it says in section 16.20.030 Definitions.
43. “Repair” means activities that restore the character, size, or scope of a
project only to the previously authorized condition. For shoreline armoring, it
means repair of no greater than 25% of the length of structure in any ten year
period and no change in the type of structure.
Imagine that 50% of a bulkhead is damaged by an earthquake, the ordinance would allow you to repair only 25% of the wall. Since it irrational to repair only half the damage, the property owner would have to sue the city to obtain a variance.
Or, let’s say you want to remodel your home after 20 years or so. The City might issue a building permit, but they will also insist that you remove decorative landscaping, including paths, decks, whatever, and replace it with “natural vegetation.”
By natural, they don’t mean the vegetation that Mother Nature would provide if left to her own devices. They mean the way it was before homo sapiens evolved. You want to change/fix/improve one thing and city staff takes over your home and tells you what you can do.
In Section 5 of the ordinance, it says…
i. Alternatives to structures for shore stabilization should be
used whenever reasonably possible. Such alternatives may include but are
not limited to: no action (allow the shoreline to retreat naturally); drainage
controls; and bioengineering erosion control measures (i.e., vegetative
stabilization, beach nourishment, drift logs, protective berms).
As the shoreline retreats naturally, yards, patios, decks, houses, roads, and other structures will be removed to the detriment of those who own them.
I can’t speak to the specifics of Mr. Greiner’s case, but in my case, the City told us to do one thing re: landscaping, then completely changed the rules the day before we were to move in to our new home. Gotcha, they smiled.
I’ve read the proposed ordinance, Ms. Wright, and I find no comfort there.
Mr. Kenneth, Thank you for your response. I certainly sympathize with your sense of inconsistency in responses from the City. I’ve heard many similar stories. On the other hand, I have seen a number of undeveloped lots cleared of native vegetation, then replanted with ‘acceptable’ substitutes, when the purpose of the requirements is to retain native shoreline vegetation wherever possible. (Think of the wide buffers of dune grass to protect against erosion on the East and Gulf coast shores.)
It’s interesting that two of us can read the proposed ordinance and come to such different conclusions. Many of the concerns expressed on this blog seem alarmist to me. For example, there is a clear provision for replacing a bulkhead and all the auxiliary improvements you mention on properties that are already developed, and where homes are in danger.I vote for giving City staff and Council a chance to walk us through the ordinance on Wednesday before deciding how we feel about the it. Then I vote for verifying the information we’ve been given. There will be another hearing on the ordinance in September.
From: BillKnobloch@aol.com
To: algr@msn.com
Sent: Monday, July 28, 2008 8:18 PM
Subject: Re: FW: 6-30-08 CAO proposed changes meeting
Hi Albert,
I am in receipt of your email and will consider your comments along with all the other emails and public testimony on Wednesday evening at the City Council Public Hearing on the matter. I am concerned that the city in general and the council in particular are now in the middle of a challenge by the tribe as to the validity of our present CAO and we are now tasked to work out a solution for everyone. I believe that possibly the city and council has made every attempt to construct a regulation that is in balance with all concerns and we are now in the middle of a no win situation. I will personally make every attempt to find guidance at a higher authority, whether it be the county or the state, to make a ruling on the fairness and applicability of our present CAO. If we do have to make a change, I feel it will be up to other agencies to tell us that we are breaking the law if we do not make that change. This includes having the Tribe acknowledge our present status as well. Thanks again for your input, Bill
City Council
Bainbridge Island
Bill,
I realize that you feel as if you’re in a vice. The only response I can offer is that you are elected to serve the legal interests of the citizens of the city not to any other concern, constituency or popular movement of the moment. If state and federal law eventually become clear on these matters, then that will call for action at that time, not now. A small polity, like us, does not have a mandate to be in the vanguard of any movement.
As I read the proposed ordinance as being a response the Tribe’s original complaint, what’s in front of you goes far, far beyond any request made. The complaint says the issue is restricting the uses of un-developed property to protect degradation of shoreline habitat. It neither asks for restoration of shoreline to pre-development conditions nor to protect so called “feeder bluffs”. There is no mention of 200 foot buffers, no request to force long standing, legal, state sanctioned residential uses into the prejudicial position of being “non-conforming”. There are a number of legal issues the lawyers have pointed out that puts the city in shallow legal waters were this to be enacted. Before proceeding further, please consider the costs and benefits likely to accrue us, the citizens.
If the City is indeed in violation of treaty terms or state law, let’s wait for that to become abundantly clear in the courts before acting and then only act in a minimalist manner to solve just the violation, not expand city powers to effectively destroy what makes our island the desirable place it is.
Taking the proposal as a whole, I see two clear consequences were it to be approved.
First, there is a clear intent is for the proposed demands to be so restrictive and onerous on property owners as to make most of the shoreline and wetland bordering homes (I’ve seen estimates that up to 70% of all island homes may be negatively impacted) un-inhabitable over the next few decades. Prohibitions on protecting property from erosion, remodeling and recreational yard uses will make many properties, including mine, un-marketable. The loss of value to affected homeowners will be catastrophic. I’ve been told variously that there are estimated to be between 1,700 and 2,400 shoreline homes on Bainbridge. At a very conservative valuation of only $1 million each, you are talking about destroying between $1.7 to 2.4 BILLION of value. All this downside for very much questionable benefit to near shore habitat. The science I’m seeing cited is much like President Bush’s science of no harm from carbon dioxide. It’s become highly politicized and certainly not all peer reviewed, best-evidence based. Frankly, I cannot trust what the staff is saying to you and me because it is so like Lysenko’s Russian science of the ’50’s and 60’s, flying in the face of evidence based knowledge to promote the political ends of the Commissars.
Second, the powers granted to the City’s staff by this proposal is effectively an annuity program for the code enforcement and planning staff. Please read carefully about the extraordinary powers staff would have to force property owners to pay for city-chosen opponents to oppose their own engineers’ findings! What sort of fairness is this? In addition, the city would be forced to hire a platoon of new planners and enforcement staff to boss us around even more than they do at present. We do not need or want this sort of costly, insensitive treatment by our city.
This is a really big deal. Please consider carefully just what you want to happen and what the un-intended consequences may be.
Thank you for your very civil reply and your fair consideration of the matter. Unfortunately, Jola and I find ourselves in Georgia on family matters and cannot attend this vital forum on Wednesday evening. That’s the reason for my recent, heavy correspondence with the Council.
With sincere wishes that you and your fellow representatives of us citizens out here are granted the wisdom to fairly judge this matter.
Albert Greiner
Rockaway Beach Road