The Board of Island County Commissioners met in Special Session on June 1, 1998, beginning at 1:30 p.m. in the Commissioners Hearing Room, Coupeville, WA. The purpose of the special session was to meet in joint GMA workshop with the Planning Commission, Planning Director, Staff, and Consultant. Today’s specific agenda included: Shorelines; Benchmarks and Monitoring; Owner-Builder Ordinance; Penalties & Enforcement, and RAID Review.

Attendance: In addition to a few members of the public, the following also attended:

Others: Hugh Shipman, Coastal Geologist, DOE

Mr. Dearborn noted a change in the schedule which would result in a two week delay in issuing Phase B Plan and Development Regulations. The public presentation would move from June 29^th to July 14^th. ;SEPA and GMA public comment period would move from June 30^th to July 15^th. He suggested completing the adoption process on those Phase A documents that have been through the public review process rather than waiting until the end of the process to adopt everything at once. The Board, by unanimous motion, adopted the GMA Compliance schedule as amended.

Mr. Bakke provided a brief history of the development of the code enforcement position and explained the process and procedures and how those are prioritized, focusing on building a degree of predictability and consistency. He outlined the areas of the Code he thought updated language or revisions were needed to better handle citizen complaints.

1) Owner vs. Renter. In most cases the property owner is the person who is directly violating the code. However, there have been a number of cases where the property owner is renting, leasing or simply allowing others to live on the property, and in those cases, strict interpretation of the code may imply negotiating with renters or tenants. Long-standing policy of the Department has been to address enforcement action to the property owner for several reasons:

• Enforcement Division does not have the resources necessary to perform investigations, including determination of who specifically is violating the Code.

2) Property Access. If a property owner refuses staff access to view the property, it is almost impossible to gain access from any other means. In the past staff conducted fly-over site visits and prepared paperwork for a search warrant, but were advised by the Island County Prosecuting Attorney that staff would be unable to get a warrant due to the wording in the Code on inspections. Under current code, the Department can only seek a search warrant after finding reason to believe that conditions therein create an immediate and irreparable hazard. Clallam County gives the Court authority to issue administrative warrants, with the demonstration of probable cause to believe a violation of County regulations occurred prior to the issuance of an Order. A revision to the code to reflect language similar to Clallam County’s Code would allow a more reasonable means to attain a search warrant and such revision result in better service and greater accountability to the public.

3) Clearing and Grading Moratorium. Current Code authorizes the Director to impose a ten year permit moratorium in cases involving unauthorized clearing or grading. Staff propose the Planning Director be authorized to impose a moratorium for a period not to exceed ten years. Criteria for the moratorium should take into account the time necessary for remedial restoration of the resource. It is also proposed there be a process to lift the moratorium for the construction of a single family residence if it does not impact the restoration of the subject resource. There have been several cases in the past few years where a ten year time period may have been excessive, but the code did not provide the Director any means to reduce that period.

4) Site Plan Enforcement. Enforcement action for Site Plan Review violations is currently handled in the same manner as enforcement of State subdivision laws, and has no provision for administrative enforcement. Enforcement of Site Plan Review violations has proven to be ineffective, costly and time consuming. Staff proposes adding a section to Chapter 16.15 allowing the Director to take enforcement action pursuant to the procedures and remedies of the Zoning Code. This would greatly simplify the process for the County, lower cost, provide a more standard procedure for the public and provide a lower level appeal process where the appellant would not be required to hire an attorney.

5. Shoreline Violations. Currently the Island County Hearing Examiner is authorized to

enforce civil penalties for violation of the Island County Shoreline Master Program. This system has proven cumbersome, time consuming and an expensive method of enforcement. Shoreline enforcement should be handled using the procedures and remedies in the Zoning Ordinance, which would reduce the cost to both the County and the property owner. While the Hearing Examiner does his best to be available to staff, logistics involved are difficult. Authorizing the Planning Director to handle shoreline violations could provide a lower level appeal process to the Hearing Examiner as an appeal of a Type II decision. Now, appeals of shoreline cease and desist orders are handled by the Washington State Shoreline Hearings Board. If the Director is the enforcement official on shoreline violations the constituent would be able to appeal to the Hearing Examiner. The only case where this would not apply would be if the County and the State Department of Ecology issued a joint enforcement order. In those cases where a joint order was issued the constituent would have to appeal to the Shoreline Hearing Board. Alleged violators often want to meet with the person who signs the order and it is often difficult to arrange a meeting with the Hearing Examiner but relatively simple to arrange a meeting with the Planning Director. Staff believes this would lead to greater consistency, faster turn around and improved accountability and public service.

6. Temporary Permit Suspension. Current Code provides that the Planning Director may

revoke any approval or permit issued and said revocation may only become final after a public hearing with the Hearing Examiner and issuance of a written decision. There have been numerous cases where Staff believed if the Department had the authority to temporarily suspend permits they could compel more expedient compliance with the code. Temporary suspension of permits would have to be disclosed in a Notice of Enforcement Order and should only last as long as the remediation time given in the Order. The temporary suspension would be an item that would be appealable to the Hearing Examiner as a Type II decision.

Randall Swanberg, Langley, referred to an enforcement order issued on the owner of a piece of property in his neighborhood but nothing had ever been done with the property and he was interested in knowing the status of the enforcement order and how long it would be until something happened.

Mr. Bakke replied that the property in question was posted and an enforcement order mailed to the last known address. If the property is not cleaned up by the owner, he expected the County would clean up the property and bring it into compliance.

Jim McKinney, Oak Harbor, commented about a piece of property in his neighborhood that has been posted for six months, yet the violations continued. He thought the ordinance fell short in the enforcement area and he suggested the County look into providing additional help to deal with enforcement issues. This particular situation has become an environmental issue because groundwater is threatened.

Cleon Denny, Oak Harbor, added that the property owner moved from one location to another each time caught, and he thought it time that the activity be stopped, mentioning that there were some 100+ vehicles, trailers and various pieces of junk on the property.

In this case, Mr. Bakke stated that the violator had not appealed an enforcement order and con-

ceded that the activity on site was in violation of code. It becomes an issue which the Department will take up with the Prosecuting Attorney in terms of utilizing provisions in the code for criminal action. The Health Department began an enforcement on this issue and spent several years working on the matter, but in going to District Court, the Court did not hear the matter citing the County did not have restrictive enough health codes, and at that point, the

Health Department referred it to the Planning Department.

Gordon Koetje, Greenbank, observed the problem being that the Prosecutor’s Office did not have sufficient staff to pursue these enforcement issues. Intent is of some concern to him. Additional manpower is needed.

Tom Roehl, Greenbank, speaking for himself and the Property Rights Alliance, pointed out that in the County Code when someone has not filed an appeal to an enforcement order, the power he believed was available to the Prosecutor to obtain a court order.

Concerning shoreline cases, Mr. Roehl observed conflicting ordinances: 16.20A and 16.21. One provides an appeal process to the Board, delegated to the Hearing Examiner; the other provides an appeal process to the State Shoreline Hearings Board. It was his opinion that the Hearing Examiner should not issue an enforcement order, rather a hands-on adjudicator of the issues. The Code needs to be revised so there is no process necessitating ex parte communication between the Hearing Examiner and Staff.

If clearing and grading is done without a forest practice permit and the activity disturbs a critical area, Mr. Roehl pointed out that the individual is subject to a 10 year moratorium, and he believed there should be some flexibility provided in those cases. Sometimes the amount of disturbance can be remedied within a three year period - and allow the area to regenerate itself naturally. He was concerned that with any suspension of existing permits, whether relocation of the permit or temporary suspension of a permit, that would be handled at Staff or Planning Director level because of potential liability to the County.

Mr. Roehl did not agree with the concept of an administrative warrant. He referenced the King County system of administrative warrants which was struck down by the Supreme Court. As far as the citizens complaint process, he believed the Code must be clear to provide that if a citizen files a complaint under that particular process, that action will be between the citizen and the property owner before the Hearing Examiner, not between the citizen and the County against the property owner.

He suggested adding to the enforcement process that in all cases if there is an enforcement action, regardless of whether it is formalized in an order or not, the person should be allowed to apply for the permit that would remedy the situation. The County’s ordinance contains a clause providing that if an enforcement order is issued with restoration as part of the enforcement order, the County cannot entertain a permit for three years from that individual until completion of the restoration. That clause should not be applicable to the permit that is the subject of the enforcement action. Making the use legal should be one of the allowable remedies in lieu of restoration. Enforcement should be an issue of trying to repair the damage as opposed to punishment, and the repair could take the form of legal approval for what was done.

Mr. Dearborn agreed that the concern of due process and protection was very valid, because 9 out of 10 enforcement actions are petty actions between neighbors over things unrelated to the issue; however, often there is a real issue that the County should be involved in and should resolve. Mr. Bakke is suggesting he needs more mechanisms to be able to make a determination readily and quickly whether a violation is occurring. Mr. Dearborn indicated the need that staff look at a date certain idea – some kind of time requirement for the County to act. In the case where the property owner cannot be found to serve notice, he suggested a publication in the newspaper in addition to posting the property.

Don Jewett, South Whidbey, expressed his opinion that a citizen complaint should be directed to the Sheriff’s Office. He thought it made sense that enforcement of County laws, ordinances and regulations be accomplished by the county government organization already designed for that purpose. He saw no reason to set up a duplicate function within the Planning Department to handle duties which by statute are already assigned to the law enforcement arena – the Sheriff’s Office and Prosecutor’s Office.

Jim Patton, President of West Beach Road Association, applauded the County’s efforts to establish a serious system of code enforcement. He referred to a situation on West Beach Road where the remedy suggested was taken, but that remedy cost the citizens $10,000. The Enforcement Order completely ignored and the action taken by the owner only resulted from a third try in Superior Court action with the threat of jail time and a significant fine.

Mr. Dearborn stated that if citizens file a complaint through the Island County system, they could potentially recover their costs, and the County could recover its costs.

Mr. Patton thought the same thing, but pointed out what happened was that the Judge in Superior Court provided they could recover half of the cost from the owner of the prosecution, but it took 18 months for them to recover something under half of the cost of that effort.

Mr. Dearborn clarified that Island County’s ordinance provides that a complaint filed with the County goes to the Hearing Examiner, and the Hearing Examiner has the authority to impose costs, including the County’s costs on the part that does not prevail.

Mr. Dearborn commented that a meeting had been held about two months’ ago with people concerned about the administration of the Owner-Builder Ordinance and identified at that meeting a series of possible changes. He and Mr. McCaughan agreed to come back to the Planning Commission and Board with recommendations (recognizing recommendations would require state approval). Every owner-builder and those who wanted to be, felt there should be a time limit to complete the outside, but the time limit on the inside might take much longer to complete was of concern.

Mr. McCaughan stated that the Owner-Builder Ordinance has had a minor affect on affordable housing. Less than 1% of houses built under 1200 sq. ft. would be considered affordable housing. Of a total 2,715 single family residences built in the last 5 years, 132 were O-B. Of the 132, only 30 have been finaled. Of those 132, about 19% owner-builder, 1,200 sq. ft. or less would likely be considered affordable housing. The purpose of the Owner-Builder Ordinance was not designed to just reduce the fee for permit, but to provide affordable housing and allow innovation. He explained that the maximum size proposed for Owner-Built homes is 1,315 for a single family residence, the same number used by Self-Help Housing. In the interest of trying to create more flexibility this proposal would effectively eliminate all but about 30+ of the owner-builder approved so far. At another staff meeting, the question was brought up what is suitable for exposure.

As a fee related rebate to enhance the use of code-complying recycled, renewed, rehabilitated or reused materials, applicant may apply for up to 50% of the $500.00 fee to be returned. Applicant must use a minimum of 25% recycled materials and supply documentation of same. The point Gordon Koetje expressed to Mr. McCaughan was that often Owner-Builders often come in with very minimal plans and County staff must spend a lot of time helping them through the process, therefore the permit fee should be higher to cover those costs. Abuses of the Owner-Builder Ordinance typically involve contractors doing the building, or contractors building their own homes. There are numerous complaints about half-finished homes.

Mr. Rose felt there should be no free help, not for contractors or owner-builders and that the

Building Department should not be in the business of helping owner-builders design a house and that practice should stop. There is a desire to have extended time on building a house and to be allowed to live in it provided it is safe. Size limit is totally irrelevant. The classic example of an Owner-Builder would be to build a beautiful house over a period of years and live in it while doing so.

Mr. Dearborn explained the advantage of an owner-builder was not for an extended period of time so much as a reduced permitting fee, reduced inspections and limited reduction in UBC standards. An owner-contractor option is also available though the building permit fee is the same as if it were a contractor. Some contractors are concerned about the large homes being constructed under a $500 owner-builder permit that would have been more substantial under an owner-contractor permit.

Mr. McCaughan added that contractors were concerned too about the 1800 sq. ft. built under owner-builder ordinance speculatively. A size limit on owner-builders would substantially reduce the number of owner-builder permits and put people who want to do it on their own in the owner-contractor category. With respect to building permits, Mr. McCaughan confirmed that a permit can be renewed for only the work remaining.

Chairman McDowell had no problem having a size limitation for owner-builder built homes, but the fee after that maximum size would be at the regular fee schedule.

Mr. Rose brought up the issue of using other than graded lumber. Island County is short of affordable housing and this he sees this as a small way to help that for all sizes of families.

Mr. Dearborn apprised the Board that under the GMA schedule right now, should the County consider an owner-builder amendment, it would go before the Planning Commission on July 21^st and to the Board on August 10^th. Referring to Mr. McCaughan’s proposal, Exhibit A, last page, he asked if the Board wanted to take this forward as an amendment.

Commissioner Shelton pointed out that the only connection between owner-builder and the Comp Plan was the issue of affordable housing. While the Owner-Builder Ordinance may need to be addressed, he did not know that it should be addressed with the Comp Plan.

Consensus: It is not a GMA implementation ordinance unless connected to affordability, and is not a good use of limited time between now and the end of September. Bring forward at another time.

Tom Roehl, speaking for himself, asked that when the County does begin looking at amendments to the Owner-Builder Ordinance and size limitation, to consider 5,000 sq. ft.

Reece Causey, Clinton, spoke as someone who would love to build a house under the Owner-Builder Ordinance permit, stated that time limit is the big issue – takes most people a minimum of 7 years as owner-builders and some as long as 12 years to complete the home, regardless of size. Obviously the exterior would be complete and the home livable within a reasonable time.

However, Commissioner Shelton pointed out that people who build homes and are limited on resources many times will skip the cosmetic things on the outside.

Mr. Rose cautioned that the County be very careful about writing codes that replace CC&R’s. He was not sure it was right for Island County to worry about the next door neighbor’s property value.

Mr. Dearborn recalled that an initial workshop had been held on shorelines and there were two matters left with further work to be done:

1. review RAID boundaries to see if there were any serious problems with RAID

boundaries from shoreline management standpoint

2. issues of use regulation.

Under the GMA schedule for Island County, this would be a part of Phase B Regulations to be released on the 29^th with two hearings in July and the Planning Commission would hold a third hearing in early Au gust.

Mr. Personius provided hand-outs:

1. proposed use regulations [underlined and strike-out version]
2. two short excerpts from two on-going shoreline studies that DOE is involved in
3. over-heads

He noted that many of the proposed use regulations and some of the suggested changes focus on bulkheads, since one of the issues of concern staff raised was in the future as population grows and the growth moves on to the shorelines. As a part of the work looking at the functions of the shoreline, it also raised the issue of how to protect eroding beaches, bluffs and homeowners.

Hugh Shipman, DOE, Coastal Geologist, Shoreline Ecologist, with extensive experience dealing with bulkheads in Puget Sound and along the coast, and affects on the shoreline, biological as well as geophysical processes, presented a short slide show on some of the bulkheads and breakwaters. Most slides were from Whidbey Island illustrating a few of the issues dealt with on a State wide basis. Bulkheads are contentious ultimately because they are a key part of protecting what’s above the shoreline. At the same time, bulkheads create some especially long-term problems.

Bulkheads become such a problem because the shoreline is not static: the basic point geologists come back to is that everything on the beach is moving. What is done in one place has potential impact on something somewhere else. Erosion rates around most of the Sound are a lot slower than most people realize. People tend to ignore erosion or over react to it. For most areas in the Sound, erosion rates are measured in inches per year at the most. Erosion tends to happen in little chunks every ten or fifteen years. A lot of the erosion is driven by rainfall and landslides, most in Puget Sound driven by landslides.

One of the overheads shown depicted how a bulkhead can serve a very useful purpose, and showed the most common kind of bulkhead going in around the Sound right now (rockery). Rip-rap bulkhead has its place, but Mr. Shipman thought it largely an industrial solution for industrial shoreline and personally would not recommend it on residential properties. Concrete bulkheads are still common in some areas and are very effective if built properly and put in the right position, but can be a real problems sometimes on sand spits. The bulkhead protects the upland but does not protect the beach. The volume of the beach diminishes because sediment is eroded out and nothing is coming in to replace it. Beaches tend to get courser where bulkheaded for a long time, and there are some very significant biological ramifications; the beach is narrowing, dropping and changing are effects happening cumulatively.

DOE recognizes bulkheads are necessary in a number of situations especially where there are existing houses threatened directly from wave or wind erosion, and DOE is trying to figure out for new development other options. Looking at any of the large slides that occurred last year, he noted that slides came down over shorelines that had been bulkhead for 50 or 100 years. Vegetation is a big issue DOE pushes hard for geological reasons; shorelines are fairly sensitive environmentally. It is far better to have mixed forest on the bluff especially down to the water’s edge than landscaping blocks and grass and a bulkhead. In certain shorelines it needs to be made clear that bulkheads cannot be built whereas in others that can occur. As a community, perhaps that decision needs to be made up front about certain areas.

Commission Shelton, in walking on the beaches on South Whidbey, observed that the majority of the slides appeared to be caused by surface water rather than tidal action.

After Mr. Shipman’s presentation, Mr. Personius reviewed the handout outlining existing use regulations where changes are proposed. Overall, the goal is to be consistent with whatever the underlying zoning is.

Mr. Dearborn commented that the Rural Environment category roughly corresponded to rural residential 5-acre lot zone; the Shoreline Residential roughly corresponds to RAIDS and the Urban to the UGAs.

Mr. Personius noted there were some RAIDS that had multiple SMP environments on shore-lines, and looking at that from a consistency standpoint, he had no problem with it from a land use standpoint.

Chairman McDowell commented there were lots of areas not designated as RAIDS where there are existing subdivisions on the shoreline. Mr. Dearborn stated that if it is an area with a series of small lots the designation probably will be Shoreline Residential.

Mr. Personius was not recommending any expansion of Natural or Conservancy. Most parks are in Conservancy or Natural. The only map changes recommended at this point are: Freeland where Nichols Brothers is located (for consistency); and the Clinton Ferry Dock changing the SMP designation from Shoreline Residential to Urban. Most of the changes are in the area of shoreline modifications. Definitions have been added at the front of the document. Bulkheads are proposed to be classified as either exempt or non-exempt. The SMA exempts bulkheads associated with existing occupied single family homes – the exemption is from a SDP and that process, but regulations still have to be met. Breakwaters, groins and jetties are not treated that way and have different impacts, and tend to interfere more with littoral drift and movement of sediment. There are particular things that the existing SMP only allows associated with a beach enhancement program and that is proposed to continue.

Mr. Dearborn explained that the map showed areas shaded where there is a significant change between the existing regulations and proposed regulations. At the top of Page 2 of the handout noting "vehicle routes and facilities on the shoreline" he suggested Mr. Personius might want to add "passenger" to deal with the question of potential ferry landings outside of UGA’s.

Mr. Rose wondered if the County had an obligation to provide for the location of new marinas because of projected population in the Puget Sound basin; is there a regional medium where needs such as that are being addressed?

Mr. Dearborn’s response was that is proposed as a conditional use in the Rural Environment

and a permitted use in Shoreline Residential and Urban.

Mr. Personius commented that the regulations do not set out to map specific areas that are appropriate for that purpose, rather that is left to the applicant who wishes to propose a project. Dry land marinas would probably be classified either as a commercial or industrial use.

As Mr. Dearborn noted, this is a first draft which has not gone through extensive review. Section

[.120 #4] is the first spot where Mr. Personius has attempted to identify the places where essentially bulkheads would not be permitted under any circumstance [use requirements page 27]. He indicated to Mr. Personius his concern this is still ambiguous enough so that it is not clear up front to a property owner where they would or would not be able to construct a bulkhead. If bulkheads are prohibited in some areas, those areas need to be specific on a map.

Mr. Shipman thought that on a map there could be areas identified that clearly have a major im-

pact, but there would still be a large range of areas where it would be a judgment call as to how much impact. Those areas where the impact from bulkheads could be flagged and known up front as being more critical than other areas.

Mr. Dearborn suggested that #4 be refined to include provisions for better notice to property owners; page 28, 4a and 4b need further work as well. 4a talks about marine feeder bluffs; and 4b, if there were an eroding beach and a house was 60’ back from the top of the bluff, the owner would have to wait until it reached 49’ to deal with beach protection.

Mr. Personius explained the idea was to set some kind of a minimum. It is hard to map in that bluffs do not stop on property lines.

Commissioner Shelton noted the West Beach example with 200’ vertical cliff 50’ is precious little; but if there is a 50’ bluff 50’ is probably enough room – could this then not be proportionate to the height of the bluff. He agreed totally with the recommendation in terms of setback requirements for new houses, but was concerned about cases such as Francisco’s in the Langley area who had to spend thousands of dollars to make sure there is no surface water from his property to the bluff.

As far as a bulkhead and the position of bulkheads, Mr. Personius indicated that a policy had been added about houses in-between that have bulkheads on either side that would be allowed to bulk-head. A bulkhead is not allowed unless there is a structure on the lot, unless it could be demonstrated that there was serious erosion and it is the water at the base of the base of the bluff that is causing the erosion and not storm or drain water from the top; but it is very site specific. Especially from a flood control problem, he saw no problem in any of the existing developed areas – it is purely an existing developed high bank area is where the problem will be. With the new setbacks proposed for residential structures and the proposed regulations on unstable slopes he was comfortable that new development can be handled without having the need for bulkheads. The problem is how to handle what is there now.

Mr. Dearborn gathered from the conversation that people were looking to increase the standards on bulkheads to be done in as scientific manner as possible to minimize the bulkhead restrictions to those that are clearly necessary. And on page 31-#15, construction types are addressed. Mr. Personius was not aware of any regulations that prohibit specific types of structures.

Mr. Shipman stated that to the degree on new development possible, the clearer the rules can be up front about what the ground rules are the better. He did see areas in the proposal that leaves a lot of ambiguity and judgment call.

Mr. Vincent mentioned three issues of concern: (1) underground utilities not a good idea along the coastline/shoreline; (2) outfalls – i.e. Camano Island and North Whidbey tight-line systems off the banks to reduce erosion; (3) desalination systems [page 34-35 existing policy]. DOE is the only agency covering this area and said for most single family dwellings they do not worry about it. The United States Navy does not use desalination within a certain number of miles of the coastline because of environmental impact statements required.

Mr. Personius commented that the issue about desalination systems to his knowledge had not been commented on by DOE but only affects a few counties, San Juan more than any, where inadequate water exists for new houses or existing houses and wells go dry. Staff advised him there are several such systems in Island County. In Health Department’s RAID review paper he was aware they raised the issue of salt water intrusion. Desalination is intended only for a single house. Bluff stairways are addressed; mussel rafts and salmon net pens are under the existing Aquaculture regulations.