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

LESSONS LEARNED

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LESSONS LEARNED. January 2007. Presented by: Thomas J. Young, Assistant Attorney General Peter Skowlund, Department of Ecology . General Categories. SMP provisions not based on inventory CAO incorporated wholesale into SMP - PowerPoint PPT Presentation

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Page 1: LESSONS LEARNED

LESSONS LEARNED

January 2007

Presented by:

Thomas J. Young, Assistant Attorney General

Peter Skowlund, Department of Ecology

Page 2: LESSONS LEARNED

General Categories

1. SMP provisions not based on inventory2. CAO incorporated wholesale into SMP3. No environment-specific regulations,

particularly lot density and coverage4. Reliance on existing regulations to meet

guidelines5. No use analysis6. No relationship between SMP, restoration

plan, and cumulative impacts analysis7. Not following guidelines8. SMP internally inconsistent

Page 3: LESSONS LEARNED

1. SMP Not Based On Inventory

• 173-26-201(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 173-26-201(3)(f), 201 (3)(g).

Page 4: LESSONS LEARNED

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

Page 5: LESSONS LEARNED

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 . . . .”

Page 6: LESSONS LEARNED

• 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

Page 7: LESSONS LEARNED

2. CAO Incorporated Wholesale Into SMP

• 173-26-221(2) requires protection of critical areas. Many jurisdictions are relying on existing CAOs to meet this requirement

Page 8: LESSONS LEARNED

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

Page 9: LESSONS LEARNED

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?

Page 10: LESSONS LEARNED

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”

Page 11: LESSONS LEARNED

ExampleThe Marysville Critical Areas Regulations, as codified in Chapter 19.24 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.

Page 12: LESSONS LEARNED

Example2. Provisions of the Critical Areas Regulations that are not

consistent with the Shoreline Management Act Chapter, 90.85 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 19.24.020 referring to reasonable use determination does not apply.

• MMC Section 19.24.420 does not apply.

Page 13: LESSONS LEARNED

3. No Environment Specific Regulations

• 173-26-211(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

Page 14: LESSONS LEARNED

Example of Standards Table

Natural RC A HI UC SR

Height N/A 25 25 50 25 35

Setback¹ N/A 25 N/A 15² 25 25

Lot Coverage

N/A 25% N/A 50% 35% 35%

Density N/A 1 per

10 acres

N/A 4 per acre

1 per

5 acres

1 per

1 acre

Buffer 200 150 N/A 50² 100 75

1. Measured from landward edge of buffer.2. Does not apply to water dependent uses.

Page 15: LESSONS LEARNED

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

Page 16: LESSONS LEARNED

Example: Policies but no regulations

NS 7.08 The 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)

Page 17: LESSONS LEARNED

Rural Environment PoliciesNS 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.

Page 18: LESSONS LEARNED

Rural Environment Policies

NS 7.10 Generally, 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 173-26-211(5)(b)).

Page 19: LESSONS LEARNED

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

Page 20: LESSONS LEARNED

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

Page 21: LESSONS LEARNED

Example: Development standards not found in SMP

30.64.170 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.

Page 22: LESSONS LEARNED

30.64.170 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 30.64.080.

Example

Page 23: LESSONS LEARNED

30.64.170 Development standards – Residential.

(5) New stairways and trams are allowed provided the project proponent demonstrates that:

(a) Existing shared, public or community facilities 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

Page 24: LESSONS LEARNED

Example

30.64.170 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.

Page 25: LESSONS LEARNED

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

Page 26: LESSONS LEARNED

5. No Use Analysis

• 173-26-201(3)(d)(ii) requires a use analysis to estimate the future demand for shoreline space and potential use conflicts

Page 27: LESSONS LEARNED

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

Page 28: LESSONS LEARNED

6. No Connection Between SMP, Restoration Plan, and Cumulative Impacts Analysis

• 173-26-186(8)(d) requires SMPs to include policies and regulations to address cumulative impacts

• See also 173-26-201(3)(d)(ii)

• 173-26-201(2)(f) requires restoration planning

Page 29: LESSONS LEARNED

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

Page 30: LESSONS LEARNED

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. 04-3-0013 (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

Page 31: LESSONS LEARNED

THE END