The Sentry - KAPO Newsletter

JUNE 2010

Mission Statement

To free private property from unreasonable government regulation
To work for responsible wildlife habitat protection and for conservation of natural resources
To support those who defend the rights guaranteed to owners of private property by the United States and Washington State Constitutions


Articles You Just Can’t Miss
From the Presidents Desk "Progress"
Executive Comments "Spy in the Sky" Revisited
Dept. of Ecology (SMPs)
Nonconforming Use and Development Standards
Thick or Thin, Buffers may not Stop Tainted Waters
Planning Commission


From the President's Desk
"Progress"
by Tim Matthes timcm@wavecable.com

We are making progress on several fronts, but not as fast as some would like to see.

Your leadership hopes to have some good news as far as getting seats on the Puget Sound Regional Council(PSRC). Whether we receive those seats or not, remember we have already accomplished a lot just getting to this point. If not for KAPO, PSRC would not have had to change their policy on how non-voting members are selected, and for how many terms these groups are allowed to participate. Because of KAPO, the PSRC executive board has taken a good look at the various groups that have had a seat in the past. We have pointed out that they have never bothered to take attendance or know how much these groups have participated. Rest assured, if KAPO gets seats on the Transportation Policy Board and the Growth Management Policy Board we will be very vocal for property rights.

Closer to home, KAPO is regularly attending Kitsap Regional Coordinating Council(KRCC) meetings and testifying. The members of KRCC are reminded each meeting that private property owners are alive and well in Kitsap County. An even more important message we deliver is that property owners are ready to do battle if necessary to protect and defend our constitutional rights to own and enjoy our property.

Shoreline property owners will be offered the opportunity to become more involved in the Shorelines Master Plan(SMP) update process. In the coming weeks you will be contacted to help design battle plans against the apparent agendas of Kitsap County and the Washington State Department of Ecology on shorelines issues. Up to this point we have been giving Kitsap County time to show us what they intend to do on the SMP update. Kapo leadership believes that the time has come to take a more proactive position on the SMP update. There is power in numbers and we can become a formidable group if we work together. An educated number of waterfront property owners banding together with common goals, and ready to attend the county's meetings should have the greatest impact on the SMP update process. After all, the new SMP will add many new regulations and restrictions on what you will be allowed to do on your private waterfront property.

We sent out our membership billing notices this month, and hope you received yours. We have important work to do this coming year and your continued support is appreciated.

Lastly, I hope that you will go to our KAPO sponsored blog insidekapo@wordpress.com and leave a comment on any of the many articles posted there. Thank you.


"Spy in the Sky" Revisited ~
by Vivian Henderson, Executive Director

Back in 2001 Kitsap County announced a plan for what they described as an "Adaptive Management Monitoring System". One of the components of the system is satellite surveillance aerial imagery. After viewing detailed images produced by this system, KAPO dubbed it as the "Spy in the Sky" ~ pretty detailed pictures of objects on the ground. Also known as LIDAR (Light Detection And Ranging) aerial survey results in very detailed one meter imagery. White stripes on parking lots and crosswalks are visible. The images are retaken and updated periodically.

The county assured citizens that this was not a "spy in the sky" "007" kind of thing. "Governments are using it for emergency response and planning, natural geography studies and flood plan mapping, wildfire prevention ..... The ultimate goal is to provide solutions that will allow our economy to move forward while at the same time improving quality of life.... ensuring clean water, a healthful environment, healthy economy...." our county commissioners assured us.

That was then. This is now. Recently Pierce County has identified more than 3,200 illegal garages and other structures under a program that uses aerial photographs to spot buildings constructed without a permit. As explained in a recent newspaper article, Pierce County compares aerial photographs taken in 2005 and 2008 to identify structures built without a permit. Pierce County has the same aerial surveillance imagery Kitsap County has. It sounds like a "Spy in the Sky" to me.

To my knowledge Kitsap County is not currently using aerial surveillance to entrap code and permitting violators. You may support catching violators through whatever means it takes but I believe Kitsap County's onerous permitting requirements and the costs involved with getting a permit makes violators out of honest people.

The county needs to make it easier for a family to build a garage on their property, provide living quarters for an aged or disabled family member and quit imposing large "no touch" buffers denying a property owner any use of those buffer areas. It's just not right.

Let's hope Kitsap County isn't thinking about aiming "big brother" at you for whatever it is they're looking for.

I just thought you'd want to know about this.

Vivian Henderson
360-710-8560
Email: viviankapo@wavecable.com

Dept of Ecology SMP Updates
OLYMPIA - The Washington Department of Ecology (Ecology) has launched a new website designed to help the public, local governments and the media better understand and get involved in the process of updating shoreline master programs. The site, www.ecy.wa.gov/programs/sea/shorelines/smp/index.html, includes:

* A citizen guide for the public to learn more and help shape the future of Washington's shorelines - including frequently asked questions.

* A shoreline planner's toolbox to provide guidance and resources for local governments to help them update their shoreline master programs.

* Information about shoreline permits and enforcement.

* Media kit to find news releases and related information about shoreline master programs.

Gordon White, manager of Ecology's Shorelands and Environmental Assistance Program, said: "Managing how state shorelines are used and developed is important. It helps preserve what we value and protect life and property. Sharing and caring for shorelines is everyone's responsibility."

He added, "Washingtonians treasure their beaches, their shorelines, and the waterways that define so much of what makes our state a wonderful place to live, work and play."

Washington has about 28,000 miles of shorelines - more than the distance around the globe. In 1972, voters approved the state Shoreline Management Act (SMA) which established a bill of rights regarding Washington's shorelines.

The act has three basic goals - protect the environmental resources of state shorelines, promote public access and enjoyment opportunities, and give priorities to uses requiring shoreline location.

It largely relies on locally tailored land use policies and regulations called shoreline master programs - adopted by more than 260 towns, cities and counties with marine or freshwater shorelines and approved by the Washington Department of Ecology (Ecology) - to achieve the goals of the act.

State law requires jurisdictions to periodically review and revise their shoreline master programs. Most haven't done so since the 1970s.

Since the SMA was adopted, Washington's statewide population has nearly doubled to an estimated 6.6 million people.

White said, "The old master programs have lead to the unsustainable development of our state shorelines and an outdated set of standards for shoreline land owners to work through. Updating our shoreline programs also will improve our water quality and keep our shorelines and beaches clean and available for our citizens to use and enjoy now and for future generations."

The 2003 Washington Legislature set up a timetable for all local governments to comprehensively update their shoreline master programs by December 2014. Lawmakers have provided towns, cities and counties about

$12 million since 2005 to modernize their shoreline master programs.

The update process is designed to bring diverse local interests to the table to work collaboratively including waterfront property owners, builders, farmers, environmental and conservation interests, recreation users, local governments, tribes and state agencies. The guidelines also require local jurisdictions and the state to ensure the regulations do not infringe on private property rights.

More than 250 towns, cities and counties are making decisions that will affect our future relationship to shorelines. They are deciding where parks and marinas, waterfront homes, and fishing spots will be.

Ecology's new website gives people the ability to track the status of all the shoreline master program updates going on across the state at www.ecy.wa.gov/programs/sea/shorelines/smp/status.html.

Several counties including Douglas, Whatcom and Yakima have comprehensively updated their shoreline master programs and more than 25 cities have already modernized their shoreline policies and regulations.

On May 21, Ecology published a blog urging local residents to get involved in adding their voice to the shoreline master program update process at http://ecologywa.blogspot.com/2010/05/be-wave-in-your-local-shoreline-master.html.

Media Contact: Curt Hart, 360-407-6990; cell, 360-480-7908 (curt.hart@ecy.wa.gov)
Ecology's new Shoreline Master Program website: www.ecy.wa.gov/programs/sea/shorelines/smp/index.html
Ecology's Shoreline Management website: www.ecy.wa.gov/programs/sea/shorelines/index.html
Be the wave in your local shoreline master program blog post: http://ecologywa.blogspot.com/2010/05/be-wave-in-your-local-shoreline-master.html


Nonconforming Use and Development Standards
courtesy of Bainbridge Shoreline Homeowners

The following is the "default" language regarding nonconforming use if the local Shoreline Master Plan (SMP) doesn't address the issue. The default includes loss of permission to rebuild if damage (think fire or earthquake) is more than 75%, permits are not obtained within 6 months, or construction is not completed in two years.
WAC 173-27-080: Nonconforming use and development standards.

When nonconforming use and development standards do not exist in the applicable master program, the following definitions and standards shall apply:

(1) "Nonconforming use or development" means a shoreline use or development which was lawfully constructed or established prior to the effective date of the act or the applicable master program, or amendments thereto, but which does not conform to present regulations or standards of the program.

(2) Structures that were legally established and are used for a conforming use but which are nonconforming with regard to setbacks, buffers or yards; area; bulk; height or density may be maintained and repaired and may be enlarged or expanded provided that said enlargement does not increase the extent of nonconformity by further encroaching upon or extending into areas where construction or use would not be allowed for new development or uses.

(3) Uses and developments that were legally established and are nonconforming with regard to the use regulations of the master program may continue as legal nonconforming uses. Such uses shall not be enlarged or expanded, except that nonconforming single-family residences that are located landward of the ordinary high water mark may be enlarged or expanded in conformance with applicable bulk and dimensional standards by the addition of space to the main structure or by the addition of normal appurtenances as defined in WAC 173-27-040 (2)(g) upon approval of a conditional use permit.

(4) A use which is listed as a conditional use but which existed prior to adoption of the master program or any relevant amendment and for which a conditional use permit has not been obtained shall be considered a nonconforming use. A use which is listed as a conditional use but which existed prior to the applicability of the master program to the site and for which a conditional use permit has not been obtained shall be considered a nonconforming use.

(5) A structure for which a variance has been issued shall be considered a legal nonconforming structure and the requirements of this section shall apply as they apply to preexisting nonconformities.

(6) A structure which is being or has been used for a nonconforming use may be used for a different nonconforming use only upon the approval of a conditional use permit. A conditional use permit may be approved only upon a finding that:

(a) No reasonable alternative conforming use is practical; and

(b) The proposed use will be at least as consistent with the policies and provisions of the act and the master program and as compatible with the uses in the area as the preexisting use.

In addition such conditions may be attached to the permit as are deemed necessary to assure compliance with the above findings, the requirements of the master program and the Shoreline Management Act and to assure that the use will not become a nuisance or a hazard.

(7) A nonconforming structure which is moved any distance must be brought into conformance with the applicable master program and the act.

(8) If a nonconforming development is damaged to an extent not exceeding seventy-five percent of the replacement cost of the original development, it may be reconstructed to those configurations existing immediately prior to the time the development was damaged, provided that application is made for the permits necessary to restore the development within six months of the date the damage occurred, all permits are obtained and the restoration is completed within two years of permit issuance.

(9) If a nonconforming use is discontinued for twelve consecutive months or for twelve months during any two-year period, the nonconforming rights shall expire and any subsequent use shall be conforming. A use authorized pursuant to subsection (6) of this section shall be considered a conforming use for purposes of this section.

(10) An undeveloped lot, tract, parcel, site, or division of land located landward of the ordinary high water mark which was established in accordance with local and state subdivision requirements prior to the effective date of the act or the applicable master program but which does not conform to the present lot size standards may be developed if permitted by other land use regulations of the local government and so long as such development conforms to all other requirements of the applicable master program and the act.


Thick or Thin,
Buffers May Not Stop Tainted Waters
by Dr. Don Flora PhD

Last month narrow buffers were mentioned that capture very well the effluents of critters including people. They are on gently sloping ground with porous soils, covered by grass.

But what about places in the Puget Sound country where those conditions aren't present? This is important because of concerns about pollutants that may be carried by overland stormwater and because vigorous buffering precludes beneficial land uses.

First, how steep the slope. If your side yard slopes so that the front of your house is three feet below the back that's a 10 percent slope.[1] During significant storms surface rainwater flows past at about 25 feet per minute.[2] If the buffer out front has that same slope, stormwater travels four times that fast there, assuming a shrubby environment that divides the incoming water into rills.[3] And that's on a gentle slope. Yep, the Department of Ecology acknowledges that buffers can do less for water quality than your yard, on account of stormwater's speedy buffer transit.

Does speed matter? Yes, because quadrupling the velocity of water increases its erosive power 16-fold, and the amount of material that can be transported is increased 1,024 times![4] And, yes, if it is important to hold the water long enough to soak in.

Now, what if it can't soak in? Puget Sound's glacial history has left us an abundance of hardpan (till) soils, close to the surface, that resist infiltration. It is estimated that hardpan accepts rainfall at only about 0.03 rainfall inches per hour.[5] During significant storms rainwater accumulates above the hardpan until, soon, it can seep no more. The flood of surface water goes swiftly to the Sound. In general it reaches aquifers only sparingly. That may be good if the water is tainted. But the bad water goes into good waterways the buffers are supposed to protect. Buffering does not solve the hardpan problem.

Doesn't buffer vegetation appreciate and ingest the arriving water? Yes, in parts of the country where rains are significant during the growing season. Our storms come in a time of dormancy; our heaviest rains are in months when most vegetation has shut down its intake manifolds. Its valves are closed to stormwater and whatever nutrients and pollutants are riding along. Vegetated buffers (are there any unvegetated buffers?), with their conduits to the sky, don't work when we want them. In every summer week each buffer tree ships as much as a thousand gallons away, and we can't stop that despite its drain on moisture reservoirs. In this respect buffers not only don't work, they may do harm, proportional to their sizes.

Last month I pointed to some narrow buffers that have corralled impressive volumes of bodily discharges. Those narrow buffers are working.

This month it's steeper slopes, impermeable soils, vegetation and seasonality problems that raise large and serious questions for the Puget Sound country. Above our hardpan soils in particular we should consider that buffers may not work. Perhaps they have never worked but we chose not to notice. Or perhaps the really bad pollutants are not generated or are not reaching the buffers along our residential shorelines.

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[1] Assuming the house is 30 feet 'thick'.
[2] From equations in the state Department of Ecology's 1991 Stormwater Management Manual for western Washington, Volume III, Chapter 2.
[3] Based on sheet flow (an even covering of wetness) in the yard, with concentrated flow in the shrub/tree zone, in line with DOE's assumptions.
[4] These effects vary with the second and fifth powers of velocity respectively. Forbes, Reginald D. 1955. Forestry Handbook, Society of American Forester and Ronald Press.
[5] Per the state's stormwater manual.


Planning Commission Report
by Director Michael Gustovson

May 19, 2010 report:

During the May 4, 2010 Planning Commission meeting, Jeff Rowe-Hornbaker told us the Board of County Commissioners has removed themselves from the land use appeals process in favor of mediation for a one year trial period.

Our next project will be to review the County wide planning policies, likely beginning with our June 1 meeting.

The West Sound Conservation Council has been established as an advisory group to the County on environmental issues.

The County is seeking input for updates to the building code. (Last year Kitsap County adopted the International Building Code as it's standard.)

Soon we will be reviewing Large On-Site Sewage systems, along with Land Use (Title 16). The question that needs to be raised is how small is too small for existing lots to be developed in the rural areas.

A rural outreach will be conducted by Department of Community Development (DCD) on Accessory Dwelling Units (ADU) and manufactured homes.


How to Join KAPO
Membership Information

**Membership in Kitsap Alliance of Property Owners is available at three levels

Voting Membership is open to applicants and includes voting rights. Membership dues are $100 per year.

Associate Membership is also available. Associate Members do not enjoy voting rights. Associate Membership dues are $25 per year.

Life Membership, voting membership for the life of the member, is available for a single payment of $1000.

**Dues are pro-rated quarterly. Contact Vivian for correct amount based on the date of your application.

The list of KAPO members is not released to the public. Individual member information is not used for any other purpose than the specific business of KAPO.

For more information or to receive a membership application visit the KAPO web site at

www.kapo.org or contact Executive Director Vivian Henderson, viviankapo@wavecable.com or Phone: 360-710-8560


kapo.org | PO Box 1861 | Poulsbo | WA | 98370

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