Hale’s SMP Comments to County Council


November 29, 2015 by islandersvoice1

edited for posting

The following is a copy of Shireene Hale’s comments to the County Council on the proposed update to the existing Shoreline Master Program that will be the subject of a series of public hearings beginning at approximately 9:30 am on Monday, November 30 in the council meeting room in Friday Harbor. The update is mandated by State of Washington. The public is invited to attend and present its own comments. It is suggested you arrive early to be assured of seating.

The comments by Hale, probably the most knowledgeable private citizen in the county on the subject, are quite lengthy, a product of the complexity of the subject and the flaws in the draft SMP. We realize that mastery of the intricacies of the SMP is beyond the grasp of most citizens. However, we want to share the perspectives of a person whose career has focused on developing and implementing environmental regulations.

The entire text of the draft update can be viewed at:


Click to access 2_PC_Staff_SMP_final_edit.pdf

Begin Hale’s Comments to San Juan County Council

November 25, 2015

Council members:

Following are my review comments on the October 30, 2015 draft of the San Juan County shoreline regulations. Though some of the comments address policy choices, most are editorial in nature, intended to correct errors, make the requirements easier to understand, and generally make application of the requirements more fair and predictable.

One area of particular concern is the proposed change to allow non-conforming uses and structures to be relocated anywhere in the County (not just the shoreline) apparently without limit, and without requiring that the resulting situation be more conforming with the requirements of the County Code. This would potentially allow a non-conforming commercial or industrial use to be inappropriately relocated in a residential area. Relocation to a different parcel should not be allowed, and relocation on the same parcel should only be allowed if it improves conformity with the County Code.

Another area of concern is that the provisions for development that is exempt from the requirement for a shoreline substantial development permit are not clear or easy to use. In part this is because they are spread throughout multiple sections of the regulations. Also, there is no clear, concise explanation of how the exemption provisions fit into the overall regulations, and nor an explanation of how to determine whether a Certificate of Exemption is required. The decision seems to be up to the Community Development Department director. While not giving clear policy direction in these regulations does make your job easier in the short term, that will likely lead to unfair and unpredictable decisions by the department director and county administrator.

Finally, at this point in the process, I am surprised by the number of errors, inconsistencies and sections that are just plain confusing. The proposed regulations are not ready for adoption. I urge you to read them through, revise them as necessary to ensure the requirements are clear, then hold one additional hearing to allow final public review and input prior to adoption.

Sincerely, Shireene Hale

Specific Comments

Beginning of definitions section, SJCC Chapter 18.20. Consider adding a list of acronyms. While they may be defined the first time they are used, it is unlikely most citizens will read the entire set of regulations, and they will have difficulty finding the definitions unless they are located in the definitions section.

Page 5, lines 28-34. This section adds a requirement for a pre-application meeting for the types of shoreline permits that go to a public hearing before the hearing examiner. I support this – it will help applicants understand the requirements and save applicants and the County time and money. In line 34, to ensure the requirement is applied fairly, I suggest either deleting the latitude for the director to waive the requirement, or provide guidance on when the requirement may be waived. Finally, this paragraph describes a part of the permit procedures and should be relocated further into this section, perhaps after “A. Purpose and Applicability” on the next page. Because it is part of the permit procedures “pre-application meetings” does not need to be included in the title for this section (18.80.110).

Page 6
Starting on line 1. Somewhere in the introductory remarks in this section it would be helpful to alert the reader to the table that lists the types of permits required for different kinds of development (the table begins on page 102).

Lines 3-4. If the components of the Shoreline Master Program are going to be listed they should all be listed, including the official map and the restoration plan. It has been suggested that the official map is part of the Comprehensive Plan, but I have yet to find anything in the Comprehensive Plan saying that is the case.

Line 7. Rather than saying this section applies to all persons and agencies “as described in Chapter 18.50 SJCC”, and expecting the reader to find that list, it would be more helpful to move the applicable section (Section 9, B-D) here or duplicate it here.

Lines 8-9. To improve clarity, consider adding an explanation that shoreline permits are a type of project permit, a term that is used on line 31 without explanation.

Line 17. Since this item does not pertain to shoreline permits, consider numbering it A.4.

Line 22. This line says that section 18.80.030 requires public hearings, but the referenced section only has notice requirements. Consider removing the code reference and saying “A public hearing is required for shoreline permit applications.”

Line 25-27. Consider removing this mention of Friday Harbor Labs since, with regard to notices, they are going to be treated the same as other agencies and organizations.

Page 7, beginning on line 18 (Section 4.F). I find the sections of this ordinance on exemptions from the requirement for a shoreline substantial development permit, and when a Certificate of Exemption is required, unnecessarily confusing. As I stated previously, part of the difficulty is because the requirements are spread out in too many separate sections of the code (this section, Section 10 (page 22), Section 11 (page 32), and Section 66 (the table of permit requirements starting on page 101). Sections 4.F, 10 and 11 need significant revision so they are clear, and so that application of the regulations will be fair and predictable.

One area that lacks clarity in this section states that the director will decide what is exempt – but it does not say what the decision will be based on. As stated on page 101, line 18, and as depicted in the table beginning on page 102 (the items listed with “SD” for shoreline substantial development permit), whether a proposed project (e.g. a bulkhead) is exempt depends on the size and scale and the exemption criteria in Section 11. Also a Certificate of Exemption is required for some, but not all exempt development. There is a paragraph on page 33, lines 28-32 stating that a certificate is not required for residential development when a building permit application is required, but that important piece of information is buried in the middle of Section 11.

It would help to relocate the list of exemptions (Sections 10 and 11) to this Section (4.F – the exemption procedures) and then start this section with a clear, concise explanation of how the exemption requirements work, how the section is organized, and what is included in the section.

Finally, on page 7, line 20, for clarity this line should be modified to say “The director will make an administrative determination as to whether a proposal is exempt from the requirement for a shoreline substantial development permit.” This phrase is used in several places in the regulations and each place it is used should be reviewed and potentially modified to make the requirement clear.

Page 8, ines 1-3 and 11-18. These paragraphs are unnecessarily vague and confusing. WAC 173-27-040 does not appear to have requirements for letters or certificates of exemption – that is in WAC 173-27-050. Consider reworking these paragraphs, and combining them with the above explanation of when a Certificate of Exemption is required, and when it isn’t.

Page 10, line 24. Grammatical error.

Page 11
Line 23. For clarity consider removing the phrase “not otherwise prohibited by it.”

Lines 28 and 35. I believe these paragraphs should be labeled items 4 and 5 rather than c and d.

Lines 35-38. This paragraph could be clearer. For example it could say “Requests to vary the use of a shoreline area are processed as a conditional use permit rather than a variance. Uses that are prohibited by the SMP may not be authorized through either a variance or a conditional use permit.

Page 12
Lines 1-2. This paragraph should be labeled item “6” rather than “e”. Also there is an error in the code citation [should be “(G)(4)” rather than “(G)(5)”].

Line 13. The review distance for wetlands is 300 feet rather than 200 feet.

Lines 26-28. Consider keeping this application component but reword it to say: “A narrative describing how the proposal meets the shoreline variance approval criteria along with any supporting documents such as Best Available Science.”

Lines 29-33. Consider keeping this application component but reword it to say: “If the proposal is anticipated to cause adverse effects to shoreline ecological functions, mitigation, monitoring and adaptive management plans meeting the requirements of Sections 19, 20 and 21.” Also, SJCC 18.35.040, which is referenced here, does not apply as stated in Section 18.D.

Page 13, 35-36. The SMA requires we protect all shoreline ecological functions, not just those in the land use designation where an activity is located. Consider deleting the last part of this sentence (after “functions”).

Page 14
Lines 27-32. This paragraph needs one or two sentences stating that the director reviews proposals that are within the scope and intent of the original permit for consistency with the SMA and SMP, and that if the proposal exceeds the scope and intent of the original permit, a new permit is required.

Line 38. “More than” and “a maximum of” are redundant. To make this sentence more concise eliminate one or the other.

Page 15, lines 15-35. This entire section can be deleted. If a new permit is required the provisions for obtaining the permit are found in other sections of the code. As written, the only decision criteria for the hearing examiner to use in reviewing an application, is whether it is within the scope and intent of the original permit – but if that is the case the proposal will be reviewed by the director and the hearing examiner will not be involved.

Page 16
Lines 1-3. Strike-out/ underline error.

Lines 23-24. This proposed change is alarming. If adopted, it would allow a non-conforming use or structure to be moved anywhere in the County seemingly without regard to whether the new location is consistent , or at least more consistent, with the requirements of the County Code. If the intent was to allow people to improve a non-conforming situation on their property, without bringing it fully into compliance with the code, that could be accomplished by the following change to the exiting regulations: “Nonconforming uses or structures may not be moved to a new site. Nonconforming uses or structures may be nor be relocated on the same site if the relocation increases conformity with the requirements of the County Code.”

Lines 22-28. I believe these sections are standards, not procedures, and as such should be relocated to SJCC 18.40.310.

Lines 29-32. Rather than eliminating mention of the SMP, to make it clear there are different requirements for nonconforming uses and structures in the shoreline, explain this and add a cross reference to the applicable SMP code sections.

Page 16, lines 33-37 and Page 17, lines 1-3. These sections are unnecessarily difficult to read and understand. Rather than the references to other sections of the code, consider simply stating what is required.

Page 19, lines 32-35. The official map and restoration plan should be added to the list of documents comprising the SMP.

Page 20, line 25. Consider removing the reference to SJCC 18.80.140, the section of the code on appeals – the reference is unnecessary as all County decisions can be appealed. Citing this code section without explanation forces the reader to go to that section, only to find that it is the general section on appeals.

Page 21, lines 30-33. This paragraph is unnecessarily confusing. Consider the following change: “2. The shoreline permit system applies to nonfederal activities constituting developments and or conditional uses by non-federal interests (e.g. private individuals, corporations, local and state government) undertaken on lands subject to nonfederal ownership, on federal lands. lease, or easement even though such lands may fall within the external boundaries of federally owned lands.

Page 22
Line 7. I support Alternative 1 on exemptions from the requirement for a shoreline substantial development permit because it is more clear and concise. I do not support trying to incorporate State regulations into the County Code and did not do a detailed review of Alternative 2.

Line 11. Item (B) seems to either refer to a non-existent section, or, in the red Alternative 2 section, to one that doesn’t seem to apply to County issued permits (it has to do with appeals to the State Hydraulic Appeals Board – see page 31, lines 42-44).

Line 18. The reference to subsection (C) is incorrect (it does not exist). I believe it should be (B).

Rather than referring the reader to Section 11 for the list of things that require a Certificate of Exemption, consider listing them here, along with the things that do not require a Certificate. In addition to making it easier for the reader to understand the requirements, that would be more consistent with the list provided in the next section.

Lines 22-23. So that the requirements are applied in a fair and predictable manner, consider providing guidance on when a Certificate of Exemption is required for development listed in this section. As written, this says a certificate may be required but it doesn’t explain the basis for the decision.

Lines 32. To better explain the purpose of the reference, consider the following change: “. . . subject to as described in WAC 173-27-040(2)(b)”.

Page 22, lines 34 and 36. Same change as above.

Page 23, line 25. Same change as above.

Page 28, lines 44 and 45. This paragraph on the director’s responsibilities should be relocated. It doesn’t belong in the list of exemptions.

Page 29, lines 8-38. Consider relocating these definitions. They also do not belong in the list of exemptions.

Page 32, beginning on line 5 (all of Section 11). Again, I find the sections of this ordinance on what is exempt from the requirement for a shoreline substantial development permit, and when a Certificate of Exemption is required, unnecessarily confusing. See previous suggestions.

Page 33
Is “Section 10” in this paragraph supposed to be “Section 11?”

Lines 15 and 19. To cover things that require a development permit (e.g. a building permit, clearing/ grading permit, driveway permit) but not a land use permit, consider the following addition: “. . . when not part of an approved project or development permit.”

Line 17. This line needs to be revised to make it clear that some shoreline stabilization projects are not exempt from the requirement for a shoreline substantial development permit.

Lines 28-32. Consider moving this paragraph to the beginning of this section to help the reader better understand when a certificate of exemption is and is not required. Also, for internal consistency, consider replacing the term “building permit” with “development permit” which is the proper term.

Page 34
Lines 1-15. Since these sections are generally applicable, to improve organization, consider relocating them before the sections on exemptions to the requirement for a shoreline substantial development permit.

Line 33. To cover things like road setbacks, or flood hazard reduction requirements that are important but not a part of the SMP, consider the following change: “the proposed action will not
. . . 3. Increase the degree of inconsistency with the provisions of this SMP the County Code.”

Page 37
Line 15. This line refers to requirements in Section 61 on transportation facilities. If this is the correct cross reference, an explanation of the nature of the “applicable provision” would help the reader understand what they are looking for.

Lines 18-20. Since this exemption applies to section 51, consider relocating this paragraph to that section.
Line 30. For clarity regarding what is required, consider the following change: “. . .permits proposing fill must includes the following information: . . .”

Page 38
Line 7. For consistency in presentation consider the following change: “1. Conservancy and Eastsound Subarea. Fill is prohibited within this designation and within the Eastsound subarea.

Lines 14-18. Since they address the same topic (critical area regulations) consider moving this paragraph to the next section, with lines 19-25.

Line 16. Consider removing the term “maintained” since some of the items included in this paragraph (e.g. new development) are not maintenance activities.

Page 39
Line 6-7. This line can be removed because it duplicates what was just said in the previous line.

Lines 8-12. To prevent internal conflicts, consider removing these lines. The handling of conflicts within the code are already covered on page 20, lines 8-11 (the most restrictive provision controls).

Page 41
Line 1 -2. Grammatical error.

Line 28. To correct grammatical error “. . . proposed mitigation must be based on the BAS.”

Page 44, line 16. To make it clear this is a requirement, make the following change: “. . . measures are must be placed . . .”

Page 49
Line 15. Is Table 5.2 correct, or is this the unnumbered table on page 102?

Lines 31-34. Direction on how to handle conflicting code provisions is covered on page 20, line 11. This paragraph should be eliminated to prevent internal conflicts in the code.

Page 57
Line 1. If the safety ladder is required, then replace “should be” with “must be”. If the safety ladder is only a suggestion, then remove this item – suggestions can be made with informational materials and do not need to be included in the regulations.

Lines 13-14. I support retaining a version of this paragraph, but it needs to be merged with the paragraph at lines 26-28 on the next page, which covers related requirements. Consider removing both the cross reference and the requirement found in Section 29(B)(7) (lines 33-35 on the following page) which allows storage buildings on publicly and privately owned overwater structures. These storage buildings would have the potential to significantly impair the visual and aesthetic qualities of the shoreline.

Lines 19-21. I support removing this paragraph (requirement 8). A boating facility might be appropriate in a village or hamlet activity center and would be precluded if this requirement is adopted. Also, the second line would seem to allow expansion of existing moorage structures without limit, in conflict with requirements in sections 30 and 31. If this is to be retained, consider breaking the paragraph into two paragraphs because the two lines cover distinctly different concepts.

Page 58
Lines 26-28. I support retaining this requirement to protect the visual and aesthetic qualities of the shoreline. Consider relocating this paragraph to lines 13-14 on page 57, which is a related requirement.

Lines 33-35. To better protect the visual and aesthetic qualities of the shoreline, consider deleting this provision.

Page 59
Line 3. Consider expressing this lighting requirement in maximum lumens rather than saying the lighting must be of “low” wattage (e.g. not more than 3500 lamp lumens). Also, consider requiring that the lights be shielded and directed downward to prevent glare onto the adjacent properties, shoreline critical areas, and the shoreline in general.

Page 60., line 30. I believe this should say “maximum” dimensions.

Page 61 (table).
Length. Consider adding the maximum pier length of 50 ft. beyond extreme low tide which is listed on page 59, line 1.

Decking. To clarify the requirement, consider the following change: “Single use float. Decking/ grating must allow a minimum of thirty (30) percent of ambient light is required to reach the water if float is six (6) feet wide or less.”

Page 62, line 33. Grammatical error.

Page 63
Line 12. I believe the “and” in this sentence should be “or”. If they don’t do either of the things then they don’t qualify for 25% liveaboard slips. Alternatively it might be clearer to just say they must do both to qualify.

Line 33. “it” needs to be added after” if”.

Page 64
Lines 3, 7 and 10. All three of these sections state that mooring buoys cannot obstruct/ interfere with navigation. Saying it once is sufficient and would be more concise. Also, in line 6 a comma is needed between “beds” and “other”.

Lines 28-29. Consider adding a provision allowing a reduced property line setback with an agreement signed by the neighbor.

Page 65
Line 12. “and” should be removed.

Line 17. Consider changing the title to “Boating Facilities – Submittal Requirements” to more clearly describe the content of this section.

Page 66
Line 11. “Standards” should be replaced with “guidance” to more accurately cite the referenced document.

Lines 18-22. Consider moving this paragraph to Section 33 on page 62 (the marina regulations). Otherwise it is likely to be missed by someone trying to understand the requirements for marinas.

Page 67. Line 25-30. Why does this section only apply to hard structural stabilization measures (it seems like it should apply to all structural stabilization measures). Also, consider adding “may be allowed in the following circumstances” to better introduce the list that follows this paragraph.

Page 68, Line 8. Planting of vegetation should be included in the list of options that must be considered for controlling erosion.

Page 69, line 9. I believe all of Section 43 applies – not just 43(C).

Page 70. Lines 15-16. Consider relocating the requirement for a shoreline substantial development permit or conditional use permit because it is not a design standard (as described in the title of this section). Also, explain how one determines which permit is needed (or if this is covered elsewhere eliminate it here).

Page 71, Lines 7 and 9. Grammar and sentence structure errors.

Page 72
Line 13. Consider adding “Shoreline Stabilization Measures –Additional Submittal Requirements” to better describe the content of this section.

Line 17. I believe “proposed development” should be “stabilization measures”.

Line 24. To better describe when this requirement applies, consider adding the following at the beginning of this paragraph: “If hard stabilization measures are proposed, an analysis . . .”

Lines 37-39. This paragraph needs to be rewritten using the same structure as the previous paragraph.

Page 73
Line 10. “in” should be “is”.

Lines 25-27. This paragraph does not belong in the list of report requirements.

Page 74, Lines 15-16. I am opposed to allowing the draining and filling of water bodies and wetlands to allow for commercial development and question how this would be consistent with the requirement to protect critical areas and shoreline ecological functions.

Page 75
Line 7. If possible, parking, warehouses etc. that do not require a shoreline location, should be located outside shoreline jurisdiction – not just above the ordinary high water mark.

Lines 10-11 and 29-30. Are these setbacks in place of critical area buffers and tree protection zones? Also, in line 19 it should mention tree protection zones (not just critical area buffers).

Lines 20. Where is this setback measured from?

Page 78, lines 28-31. If possible, parking, warehouses etc. that do not require a shoreline location, should be located outside shoreline jurisdiction – not just above the ordinary high water mark.

Page 80. Line 6-9. If possible, parking, storage etc. that does not require a shoreline location, should be located outside shoreline jurisdiction – not just above the ordinary high water mark.

Line 20. Grammatical error.

Page 81. Line 8. Grammatical error.

Page 83, Lines 18-26. This section needs guidance on the basis for approval/ denial.

Lines 29-30. This duplicates lines 16-17.

Page 87
Line 30. Section “15” should be “14”.

Line 34. I believe Section “10” should be “J”.

Page 89, lines 29-30. For consistency with critical area regulations this should say “Within the aesthetic setback, stocking levels for trees ≥ 6” dbh may not be reduced to less than 21% canopy cover.”

Page 90, lines 34-36. I think a day’s travel on the water is too far away for a pump-out facility for live aboard vessels. If a marina wishes to offer live aboard moorage they need to provide a pump-out facility.

Page 96, lines 7 and 31. Grammatical errors.

Page 98, lines 3-6. It would be helpful to explain how one determines which permit is needed.

Page 99
Line 23. Is this correct? Shoreline habitat enhancement projects are prohibited within fish or wildlife spawning, nesting or breeding habitat?

Line 30. Grammatical error.

Page 124, line 11. Grammatical error (replace “such as” with “include”).

Page 147
Lines 7-8. This definition of top of bank needs additional work. The first change of ten degrees or more is likely to be at the bottom of the bank, not the top of the bank.

Line 23. Consider including bicycle trails in this list of transportation facilities.

Page 156, line 17. Consider adding the following: “. . . where the term ‘effective date of this SMP or ordinance’ appears . . .” In some places this code is referred to as an ordinance rather than this SMP.

2 thoughts on “Hale’s SMP Comments to County Council

  1. Janet Alderton says:

    Thank-you Shireene! There are so many problems with this proposed SMP update that it should be revised and there must then be opportunities for further public hearings/commenting.

    I could not agree more with your statement:
    Page 74, Lines 15-16. I am opposed to allowing the draining and filling of water bodies and wetlands to allow for commercial development and question how this would be consistent with the requirement to protect critical areas and shoreline ecological functions.


  2. B. Sadie Bailey says:

    Thank you, Shireene Hale, for your detailed and accurate analysis of the proposed SMP. It’s a boondoggle. I respect the work you did on the CAO, and know how many times the County was threatened with lawsuits over keeping or adding protections of CAs, until the CAO was watered-down enough to suit certain deep-pocketed special interests and assure them that they could get away with virtually anything.

    There is no enforcement, or fining of repeat violators, so it’s pretty much the “wild west” here. People do what they want, including not applying for or paying for permits, destroying CA’s, and just getting away with it all. They get only a hand-slap after the damage is done – if someone notices and reports the violations. Then the “non-conforming” use gets grandfathered-in and sets precedent for more of the same spiral into cumulative irreversible harms to shorelines and CAs.

    Thanks to your detailed letter, I now understand far better what is being proposed, and it’s worse than I knew. Thanks for outlining some of the most concerning things. There are so many areas of concern. The powers given to the “Director” of DCD to make decisions about exemptions, with no real or consistent guidelines spelled out for the Public of what will inform those decisions, is worrisome to me, too. Thanks for pointing it out. Your knowledge and expertise is greatly needed at this time.

    We’ve have zero help from the County in deciphering this SMP behemoth, as to what things really mean, in plain-speak. Instead, we get scolded for trying to stall it and have more Public input with comments like, “you’ve HAD “x” amount of years to make comment.” Both the SMP and ESAP were made much longer and harder to read than the original documents.
    I understood the old SMP. This proposed SMP is unintelligible, confusing, inconsistent, and so daunting that the average person will need a lawyer just to read it.

    Removing cross-referenced numbers of other sections or documents that would help us understand more about what’s being said, is another of my biggest concerns. The writer(s) obviously fail to know how to categorize “like with like” or cross -reference us to related sections. The “why” of these regulations was completely removed, and all cross-referenced numbers to the existing Comp Plan are struck. This is of no help to the Public, when they want to know the “why” of a regulation, or why they should do a right thing. These documents are not written for the Public.

    What concerns me greatly is that they’re also already altering language in the Comp Plan Elements and Goals & Policies while the SMP document has not yet been adopted. Are they so sure that they will get this adoption accepted by DOE and the GMHB that they can rewrite the Comp Plan to suit it the environmental relaxations at the same time? What is the legality of that? Is that common procedure?

    A big question I have is this: If they’re already rewriting the Comp Plan Goals and Policies, won’t the Comp Plan Review process have the deck already stacked, so that when Council reviews it, it’s already rewritten? – and the Public will be none the wiser that this has happened without them? What are our safeguards against this happening? By the time this reaches review by the GMHB and under the SMA, the damage will likely already be done.

    “Review” in both cases of the Eastsound SubArea Plan and the SMP, seems to mean an entire reformat and rewrite. I don’t see where Public involvement informed any of these rewrites, although county officials disagree. What I see is, we were informed by being handed indecipherable drafts, full of omissions and inaccuracies, after a few people rewrote these things for us all. There was nothing in the media, no helpful articles deciphering it, no power-point educational presentations on the website for the average layperson. I don’t see how that defines itself as a Public process. I hope people mention these things as well in their comment letters.

    Sorry this is so long. So many thoughts and questions – and no time to have them answered.


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