Kitsap Alliance of Property Owners

The Sentry - July 2, 2010

KAPO's Mission Statement
1. To free private property from unreasonable government regulation
2. To work for responsible wildlife habitat protection and for conservation of natural resources
3. To support those who defend the rights guaranteed to owners of private property by the United States and Washington State Constitutions

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Special Report on Kitsap County SMP Task Force
• Introduction
• Science and Shoreline Planning
• Property Rights and Shoreline Planning
• Request for Information
• Letter of Complaint to Commissioners
• 2nd Letter of Complaint to Commissioners
• 3rd Letter of Complaint to Commissioners
How to Join KAPO

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Introduction

Robert Benze is KAPO's representative on the Kitsap County Shoreline Master Program (SMP) Update Task Force. The following are his written contributions to the Task Force meetings.

Your KAPO leadership and all of our members are indebted to Bob for the commitment he has made to represent the constitutional rights of shoreline property owners. Your attendance at these meetings is encouraged and appreciated.

You don't have to be shoreline property owners to attend these meetings. Today shoreline property owners are under attack - tomorrow upland property owners will be under attack. We all need to support each other. Bob needs our support and appreciation.

Information about the Task Force and a schedule of meetings can be found at www.kitsapshoreline.org.

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Science and Shoreline Planning
Kitsap County Shoreline Master Program Task Force - June 3, 2010
Comments by Bob Benze

I would like to make several points this evening related to the Draft Shoreline Inventory and Characterization report.

First, I am concerned about the county's approach to restoration. As I recall from Jeff Talent's presentation, the goal of the SMP update is to ensure no net loss of ecological function as the result of future development -- with a baseline of today. This would mean that some restoration will likely be required and planned for to offset the potential ecological impact of whatever future development is allowed by the SMP update. Yet the draft study's prioritization recommendations appear to contradict this, implying that ongoing restoration of the existing shoreline is intended.

The county has said that they will be using the Puget Sound Nearshore Restoration Project as part of the planning process. This is a joint Corps of Engineers and WDFW project that, according to their May 24th presentation, used a GIS database to compare the physical condition of the state's shoreline today with an 1850 baseline (not today's baseline) derived from maps of that era - to identify shoreline restoration needs. Indeed it appears the county will be using the WDFW guidance developed from the Nearshore Restoration Project as a companion to Ecology's SMA guidelines. This raises the question of what baseline the county actually intends.

Also, at the Nearshore Restoration presentation, I noted that the purpose of the SMP update is to maintain ecological functions, but when I asked if any biological information was included in the projects database, the answer was "No". I suggested this omission would lead to wrong restoration conclusions.

When I reviewed the Draft shoreline Inventory and Characterization report being discussed this evening, I expected to see a few candidates for restoration, such as the potential restoration of salt marshes or abandoned industrial sites. Instead I see the Draft Shoreline Inventory and Characterization report identifies what appears to be the majority of the shoreline NAUs (Nearshore Assessment Units) as restoration candidates.

I then looked at the criteria used to characterize each of these stretches of shorelines. It uses a methodology that is based on identifying "stressors" and their impact on "controlling factors" that limit and determine habitat suitable for species growth. In virtually all cases these stressors are the man-made alterations to the shoreline. These are weighted and normalized in a mathematical model that was established to determine their degree of control over ecosystem structures, processes and functions. Much of the weighting appears to be subjective - with bulkheads receiving a high negative score -- even though their use is permitted by the Shoreline Management Act to protect property. There were no man-made alterations credited with improving ecological functions.

Unfortunately, the science supporting this model is weak, often appearing to be based more on assumptions and conjecture, than on relevant peer-reviewed cause and effect studies. Battelle's own data, where it exists, makes the point. Battelle studied on the order of 1500 NAUs in the Bainbridge Island and Kitsap County area. In the vast majority of these NAUs, where the authors evaluated both stressor data and habitat data, no clear correlation was found between human activity and lessened environmental health. This suggests that the model is not capable of producing credible results, including the proposed shoreline management actions.

I say this with great reluctance. My relationship with Battelle goes back to the 1980's when I managed the technical program for the shipyard to put end of life nuclear submarine reactor plants into a burial trench at Hanford. I worked with top-flight Battelle scientists studying the long-term environmental effects - including some fairly sophisticated vadose zone modeling. I was on an EPA Environmental Technology Verification panel for in situ sensors that was facilitated by Battelle. I worked with Navy scientists and with Battelle marine chemists and biologists when I was assembling a scientific basis for protecting the marine environment at Navy shore facilities. During this time I developed the highest regard for Battelle's scientific expertise. Thus it was a surprise and a disappointment to see the Battelle name on a shoreline assessment for Kitsap County which clearly did not measure up to my expectations.

As you know, science often involves determining whether a cause and effect relationship exists. To do this, you make a hypothesis and then design an experiment to test it. If your data suggests your hypothesis is correct, you subject your findings to the scrutiny of your peers to see if they can find fault with your experiment, and to see if it can be replicated. There is no evidence that this was ever done to scientifically validate the restoration-prioritization methodology used by Battelle.

This is why I provided you with Dr. Flora's book of papers that systematically reviews what is scientifically known about these stressor-habitat relationships and where there are gaps in the science.

I would suggest that this draft report's characterization of the shorelines not only oversteps the requirements of the WAC for restoration, but that it is scientifically indefensible.

Because the policy that will result from this SMP update will strictly limit how a property owner can use his property, with potentially major financial consequences, it is important that the SMP update limit these controls to the minimum requirements of the law -- and where the controls are to be based on science, that pains are taken to ensure the science is defensible.

This is not currently the case and the county needs to rethink their approach to this study and their action prioritization recommendations.

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Property Rights and Shoreline Planning
Kitsap County Shoreline Master Program Task Force - June 17, 2010
Comments by Bob Benze

This evening we are looking at Community Visioning and the Overarching Goals of the SMP.

In our deliberation, I would ask you to consider a fundamental question: Who owns the shorelines. Is it the state? Is it the private property owner? Or is it some combination of the two?

We were given a homework assignment to read sections 171, 176, 181, 186 and 221 of WAC 173-26 in preparation for the meeting. These sections cover the Act's purpose, goals, governing principles, and provide the guidelines for allowable shoreline modifications. A cursory reading might lead you to believe that the state has ownership rights - to the point of calling shoreline property "Shorelines of the state".

But buried in Section 186 is a sentence that should not be overlooked. It says that "Local governments should use a process designed to assure that proposed regulatory or administrative actions do not unconstitutionally infringe upon private property rights."

Thus, an equally important homework assignment might have been to read the Washington State Constitution, Article I, Declaration of Rights. In it you will find:

Section 1: All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.

Section 3: No person shall be deprived of life, liberty, or property, without due process of law.

Section 16: ...No private property shall be taken or damaged for public or private use without just compensation having been first made... Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public...

The framers of both our federal Bill of Rights and our state constitution's Declaration of Rights were singularly concerned with limiting the power of the government to control and coerce its populace. The rights they designed were intended to guarantee people freedom from abuse by an overzealous government. Nothing more!

The right to own property and to use it and enjoy it without government interference was considered fundamental by our founders - who placed its importance right up there with the right to life and liberty. A serious student of social studies and economics knows that the unencumbered ownership of private property is one of the historic cornerstones of free and prosperous societies - and where governments have assumed ownership, either outright or indirectly through land use and environmental regulations, the results have invariably proven inimical to the interests and welfare of its citizens.

Yet today we find our government assuming they have the right to control private property. The premise appears to be that the rights of the collective society outweigh the rights of the individual - a position diametrically opposed to that of our constitution.

This results in things like the Community Visioning process, where the community is encouraged to decide how private property owners will be able to use and develop their property.

Some of you may think that this is fine and that people shouldn't be free to do any old thing they want to with their property. I would agree, within limits - people shouldn't be allowed to do things that are a nuisance to their neighbors or things that would pollute the environment. But I would suggest that the existing building codes, zoning ordinances, environmental laws, and health regulations do virtually everything that is needed. (I would also suggest that shoreline private property owners are highly motivated to take good care of their property and the surrounding environment.)

And on top of that, for shorelines, we have the Shorelines Management Act and WAC 173-26, which add additional controls. The fly in the ointment is that these laws leave significant discretion to local governments - who are afforded a wide range of latitude in deciding how stringent and precautionary the controls will be. Environmental activist organizations and the tribes have a history of putting pressure on counties to implement overly-protective regulations - in most cases finding willing partners and successfully achieving their objectives; and the Department of Ecology is unlikely to tell the county they have gone too far in their zeal to protect shorelines.

So the need to provide balance rests squarely on the shoulders of citizens like you and me. I believe we should advise the county to resist the temptation to push regulatory controls and restrictions to the limits of the SMA and the WAC. Rather, I would argue, that the plan the county is putting together should be minimalistic -- purposely designed and reviewed to ensure that it: 1) meets the minimum WAC requirements, 2) that its environmental protection plan is scientifically sound and defensible, and 3) that it does not impose any unnecessary regulatory hardship on shoreline property owners.

The bottom line is that a community vision for the shoreline might be an interesting exercise, but the county has a legal obligation in this SMP update to ensure that neither this vision, nor any other part of the plan, is allowed to infringe on the constitutional private property rights of the shoreline's property owners.

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Request for Information
Questions, comments, and request for information related to the "Draft Shoreline Inventory and Characterization Report"
by Bob Benze

1.As noted by questions in last month's session, it is not clear how the report was actually developed. Apparently, GIS and tabular data from several sources was processed to develop the final shoreline maps and NAU characterizations. However, the data actually used and the methodology to weigh, normalize and manipulate it are not apparent. Although the East Kitsap Nearshore Assessment report contains some information on how the numerical scores were developed, even it is incomplete.

Thus it is requested that DCD provide an appendix showing an example of how actual data from the Puget Sound Nearshore Restoration Project, the County's own shoreline inventory, the Battelle efforts, and any other sources was processed, to achieve the final results. This would include publishing the Controlling Factors numerical model that was apparently used by Battelle. Please indicate which organization did each segment of the actual work.

2.The county's approach to restoration is still not clear. As noted in the last meeting, Ecology's Jeff Talent's presentation said the goal of the SMP update is to ensure no net loss of ecological function as the result of future development - with a baseline of today. This means that restoration activities would need to be identified to offset potential loss of ecological function from future allowed development.

Depending on who you talk to at Ecology (and the chart Joe Burcar showed us), there may be a need for a small amount of restoration to mitigate ongoing shoreline uses - or not. But the Draft Shoreline Inventory and Characterization Report defines restore as: "To restore structure and functions of the (NAU) sites to historical conditions". These are obviously contradictory.

Thus it is requested that DCD provide a clear and unambiguous statement of their proposed restoration policy - and how it conforms to Ecology's guidance.

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Letter of Complaint to Commissioners

To the Commissioners:

This is a formal complaint against your contracted meeting facilitator, Ms. Margaret Norton-Arnold and her unprofessional management of the June 17, 2010 Shoreline Master Program Task Force meeting held at Island Lake County Park.

Throughout the meeting Ms. Arnold was blatantly biased in her dealing with various task force members as well as the taxpayers who gave up their evening to attend the meeting.

Ms. Arnold rolled her eyes, made comments under her breath (though loud enough for the audience to hear), used a tone of voice that dripped with sarcasm if she disagreed or didn't want to give time to a member's comments, and her body language visably displayed her encouragement or displeasure.

She even suggested members take their break during one member's comment period. She complained his comments were too long, yet she allowed others and herself to continually interrupted him, thus extending the time it took him to make his point.

I have never seen such condescending, arrogant or unprofessional handling of a public meeting in the 20+ years I've attended county, school district, community council, or fire district meetings. She is totally unable to conduct herself in a professional way as a facilitator.

It is extremely offensive to see volunteers and taxpayers alike publicly admonished by an obviously biased contract employee who is paid by my tax dollars. This woman totally lacks the skills of a facilitator and should not be considered for county business.

Mrs. Carolyn A. Riplinger
PO Box 217
Seabeck, WA 98380

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2nd Letter of Complaint to Commissioners
June 28, 2010

Kitsap County
Board of County Commissioners

Steve Bauer, Charlotte Garrido, Josh Brown

I don't believe Margaret Norton-Arnold, the county's contracted Shoreline Master (SMA) Update Task Force facilitator, knows anything about the requirements of the SMA. If she were required to know only one thing about the Act it would be the requirement for public participation.

You should caution her about the unprofessional and rude behavior she displayed to the public at the June 17th meeting.

On several occasions during the meeting I observed the facilitator finishing a sentence when the task force member was trying to finish a thought or express a point. This is not acceptable.

Her bias is evident even to a casual observer by the way she responds to Task Force members and the public.

During the 6/17th meeting her actions included deep sighs, rolling her eyes, sarcastic remarks to a member of the public who had a question, flailing her arms while she flopped backwards into a chair in desperation, telling Task Force members to take a break while one Task Force member was trying to make a point and trying to enforce rules that don't exist.

Margaret Norton-Arnold needs to be replaced immediately by a reputable, objective, professionally trained facilitator.

Further, 10 minutes for public comment at those meetings is not enough time. If the public is invited to participate they should be treated with respect and courtesy.

Respectively

Vivian Henderson, Executive Director
Kitsap Alliance of Property Owners
360-710-8560
Email: viviankapo@wavecable.com

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3rd Letter of Complaint to Commissioners
June 28, 2010

To the Kitsap County Commissioners,

Kitsap County's Shoreline Master Plan Update has had a rocky start. The Growth Management Act and the Shoreline Master Plan Update Program " call for early and continuous public participation." This means that each of you have the responsibility to ensure that the public will truly be encouraged to participate in the SMP Taskforce meetings. Education and discussion are key components in having true public input in the county's SMP update.

You have hired a facilitator, Ms. Margret Norton-Arnold, to conduct our Task Force meetings. On June 17, 2010, Ms Arnold conducted the Task Force meeting for you. Her actions, along with the example that she displayed at that meeting was simply unacceptable. She made it very clear to those in attendance that she and she alone would decide what topics, testimony, conversation, and discussions would be allowed at this meeting.

She is your personal representative paid for by all the citizens of Kitsap. You should be aware of the damage that she has caused as well as the loss of confidence the public has suffered. Her actions have created distrust among the very people that you have encouraged to participate in the process.

Members of Kitsap Alliance of Property Owners think your corrective action should be swift and decisive. We ask that you cancel her contract with the county as soon as possible. Find a new Consultant/ Facilitator that is not biased, will respect the public and allow them to participate in our SMP update process without fear of her type of public ridicule.

Respectfully,
Tim Matthes
President KAPO

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How to Join KAPO

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 Henderson 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, at 360-710-8560 or via email.

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