LESSONS LEARNED January 2007 Presented by: Thomas J. Young, Assistant Attorney General Peter Skowlund, Department of Ecology

General Categories 1.SMP provisions not based on inventory 2.CAO incorporated wholesale into SMP 3.No environment-specific regulations, particularly lot density and coverage 4.Reliance on existing regulations to meet guidelines 5.No use analysis 6.No relationship between SMP, restoration plan, and cumulative impacts analysis 7.Not following guidelines 8.SMP internally inconsistent

1. SMP Not Based On Inventory (3)(d)(i)(E) – “use the characterization and analysis called for in this section to prepare master program policies and regulations designed to achieve no net loss” see also (3)(f), 201 (3)(g).

SMP Not Based On Inventory In many cases local jurisdictions are using pre-existing environment designations, zoning codes, comprehensive plan policies, critical areas ordinances, etc. as SMP policies and regulations Not necessarily a wrong approach, but must include demonstration of how existing regulations satisfy no net loss

SMP Not Based On Inventory Example: 50 foot setback on all shorelines “No structure shall be erected within 50 feet of the OHWM, except for bridge approaches and bridges, marinas, docks, boat launches, or buildings related to water dependent recreation developments or other uses proven to be otherwise necessary in the public interest and specifically authorizes....”

Problem is that 50 feet may be too much in some places, not enough in others Ecology will be changing future grant agreements to require recommendations for policies and regulations in the inventory as a deliverable SMP Not Based On Inventory

2. CAO Incorporated Wholesale Into SMP (2) requires protection of critical areas. Many jurisdictions are relying on existing CAOs to meet this requirement

CAO Incorporated Wholesale Into SMP Nothing wrong with that approach in general but specific problems that occur are: 1.CAO is outdated or inconsistent with current science 2.CAO is not properly incorporated by specific dated edition 3.CAO includes provisions inconsistent with SMA or SMP

Examples of CAO Provisions that are Inconsistent with SMA or SMP Reasonable use exception in CAO Buffers in CAO exceed setback in SMP Buffer averaging provisions in CAO not analyzed for no net loss Permit procedures in CAO Director’s exemptions, waivers, exceptions Are they variances?

CAO Incorporated Wholesale Into SMP Best way to incorporate CAO is to incorporate a specific dated edition and then exclude the inconsistent portions Use magic words: “hereby incorporated”

Example The Marysville Critical Areas Regulations, as codified in Chapter MMC (dated May 2nd, 2005, Ordinance #_2571 ), are herein incorporated into this master program except as noted below. Exceptions to the applicability of Marysville Critical Areas Regulations in Shoreline Jurisdiction in the instances specified below. 1. If provisions of the Critical Areas Regulations and other parts of the master program conflict, the provisions most protective of the ecological resource shall apply, as determined by the City.

Example 2.Provisions of the Critical Areas Regulations that are not consistent with the Shoreline Management Act Chapter, RCW, and supporting Washington Administrative Code chapters shall not apply in Shoreline jurisdiction. 3.The provisions of Marysville Critical Areas Regulations do not extend Shoreline Jurisdiction beyond the limits specified in this SMP. For regulations addressing critical area buffer areas that are outside Shoreline Jurisdiction, see Marysville Critical Areas Regulations. 4.Provisions of Marysville Critical Area Regulations that include a "reasonable use determination" shall not apply within Shoreline Jurisdiction. Specifically, The sentence in MMC referring to reasonable use determination does not apply. MMC Section does not apply.

3. No Environment Specific Regulations (4)(a)(iv) – requires environment-specific regulations that address types of shoreline uses, building or structure height and bulk limits, setbacks, maximum density, and site development standards Best way to address this requirement is with two tables, a use table and a standards table

Example of Standards Table NaturalRCAHIUCSR HeightN/A Setback¹N/A25N/A15²25 Lot Coverage N/A25%N/A50%35% DensityN/A1 per 10 acres N/A4 per acre 1 per 5 acres 1 per 1 acre Buffer200150N/A50² Measured from landward edge of buffer. 2.Does not apply to water dependent uses.

No Environment Specific Regulations Some SMPs have not included environment specific regulations due to a desire to integrate the SMP into other development codes Environment specific regulations inconsistent to some extent with principles underlying CAOs

Example: Policies but no regulations NS 7.08The Rural Environment is intended to should protect agricultural land from urban expansion and to restrict intensive development along undeveloped shoreline areas that might interfere with the normal operations or economic viability of an agricultural activity located on adjacent associated shoreline areas. The Rural Environment is also intended to maintains open spaces and provides opportunities for recreational uses compatible with agricultural activities. (SMP p. 10)

Rural Environment Policies NS 7.09 The following criteria should be used for the designation of Rural Environments (SMP p. 10): 1. Intensive agricultural or recreational uses. 2. Those areas with potential for agricultural use. 3. Those undeveloped natural areas that lie between agricultural areas. 4. Low-density residential development. 5. Moderate land values. 6. Potential low demand for services.

Rural Environment Policies NS 7.10Generally, allowed uses in the Rural environment should focus on resources and recreation uses. Commercial and industrial uses should be carefully limited. Residential uses should sustain shoreline functions (SMP 15.00, WAC (5)(b)).

4. Reliance On Existing Regulations Most local governments rely on some existing regulations to meet guidelines requirements Almost all rely on CAO and flood ordinances Some go further and rely on their zoning code for density, height, and bulk limits

Reliance On Existing Regulations Nothing wrong in principle with this approach but need to explain how the existing regulations mesh with the inventory to meet no net loss requirement

Example: Development standards not found in SMP Development standards – Residential. (1)Residential subdivisions or short subdivisions shall not be approved for which structural flood protection or shoreline stabilization measures will be necessary to protect lots or subsequent development on the lots. (2)All utility lines shall be located underground.

Development standards – Residential. (3)Accessory structures that are not appurtenances must be proportional in size and purpose to the primary structure, and compatible with onsite and adjacent structures, uses and natural features. (4)All residential subdivisions, short subdivisions creating more than four parcels, and multi-family developments of more than four lots or dwelling units shall be required to provide public access to the extent required by law and consistent with the requirements of SCC Example

Development standards – Residential. (5) New stairways and trams are allowed provided the project proponent demonstrates that: (a) Existing shared, public or communityfacilities are not adequate or available for use; (b) The possibility of a multiple-owner or multiple- user facility has been thoroughly investigated and is not feasible; and Example

Development standards – Residential. (5)(c)The stairway and/or tram is designed and located such that: (i) subsequent shoreline modification, including the installation of shoreline stabilization, solely for the purpose of protecting the structure is not necessary; (ii) removal or modification of existing shoreline vegetation is the minimum necessary to accomplish the purpose, and is planned to be replaced with appropriate native species within the next growing season; and (iii) no fill or other modification waterward of the ordinary high water mark is necessary to construct or use the structure.

Reliance On Existing Regulations Problems with this approach include: 1.No connection between inventory and regulations 2.Must incorporate significant portions of the zoning code into the SMP 3.Can be difficult to determine what is part of the SMP and what is not 4.May not have authority in SMA to include zoning provisions in SMP 5.Must show how existing regulations achieve SMA policy and no net loss

5. No Use Analysis (3)(d)(ii) requires a use analysis to estimate the future demand for shoreline space and potential use conflicts

No Use Analysis Some SMPs have included narrative analysis SMPs approved so far have been cities with limited shoreline space Ecology guidance is needed to describe what a rigorous analysis would look like at the county level

6. No Connection Between SMP, Restoration Plan, and Cumulative Impacts Analysis (8)(d) requires SMPs to include policies and regulations to address cumulative impacts See also (3)(d)(ii) (2)(f) requires restoration planning

No Connection Between SMP, Restoration Plan, and Cumulative Impacts Analysis Recommendations of the CIA and RP should be included as regulations or policies in the SMP Particular restoration projects do not have to be included in the SMP Often, it appears the CIA and RP are justifications for existing regulations rather than steps on the way to development of an SMP Ecology considering amendment of future grant contracts to require RP and CIA earlier in the process before development of policies and regulations

Example of Cumulative Impacts Analysis Bainbridge Island analysis of dock proliferation in Blakely Harbor Upheld by the Growth Management Hearings Board in Samson v. City of Bainbridge Island, CPSGMHB No (1/19/05) Estimated number of docks based on number of developable lots Quantified impacts to navigation and views Used the analysis to support SMP regulations limiting docks

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