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Mr. Michael Lewars, Chair Bainbridge Island Planning Commission c/o Libby Hudson, Long Range Planning Manager 280 Madison Avenue Bainbridge Island, WA 98110 Sent via email to: Libby Hudson (email@example.com) Dear Chair Lewars and Planning Commission: Re: Comments on the Bainbridge Island Shoreline Master Program Update Thank you for the opportunity to comment on the draft Shoreline Master Program (SMP) Update. Futurewise is a statewide citizens group that promotes healthy communities and cities while protecting working farms, working forests, and shorelines for this and future generations. People For Puget Sound is a nonprofit, citizens’ organization whose mission is to protect and restore Puget Sound and the Northwest Straits. We appreciate that the city has done an extensive amount of public involvement, including public meetings and citizen committees. The resulting Bainbridge Island SMP is a strong document that matches many of the requirements in the 2003 SMP Guidelines. However there are still important issues that should be addressed. Our technical recommendations below reflect some remaining areas where the SMP does not meet the 2003 Shoreline Master Program Guidelines (SMP Guidelines).
Recommended Improvements to the Current Draft
Many of those comments in our previous letter, dated January 10, 2012, are still applicable. We have attached them to this letter for reference. In this section, rather than restating comments we recap our most important concerns that are not addressed in the current public draft SMP. Please see our previous letter for the detailed reasons that the changes are important. Compensatory Mitigation. In order to provide clarity in the SMP, it is important to use the term “compensatory mitigation” rather than just “mitigation” when such compensation is being described in the document. This change has been made in a few locations in the document but it is missing in other sections of the text. We do appreciate the changes addressing the impact analysis and no-netloss standards, and addressing the impact analysis and mitigation plan requirements. We recommend the consistent use of the term “compensatory mitigation” throughout the SMP. Environment Designations. The criteria established to designate the Natural, Island Conservancy, and Shoreline Residential Conservancy environments are very similar to the SMP Guidelines criteria for Natural, to the point that many highly functioning locations would qualify for any of the three environments, even though they are may be very different from each other in character. This is problematic because the designations on the map do not necessarily reflect what is on the ground. This methodology has resulted in an extremely low amount of Natural environment, most of these
Bainbridge Island Planning Commission – SMP Update March 29, 2012 Page 2 being spits and lagoons. These, therefore, are the only areas that have full protection. The remaining large blocks of intact upland vegetation are designated Island Conservancy, Shoreline Residential Conservancy, or even Shoreline Residential (all of which allow intense and altering forms of development) even though the SMP Guidelines requires the protection of shoreline functions in areas of intact vegetation. We recommend that the areas with blocks of intact vegetation around the island be designated Natural. Our suggested locations that should be designated Natural have substantial lengths of intact shoreline that total over 3 miles in length. They are: The south tip of Manzanita Bay – approximately 300 feet between residences. The east tip of Manzanita Bay – a block on either side of the east tip totaling about 500 feet (located near Peterson Hill Rd.). North side of Battle Point – approximately 500 feet between residences. The sinuous estuarine tips of Fletcher Bay, where there are segments with intact vegetation of about 1000 lineal feet. Along Gazzam Lake Park – about 1100 feet of undeveloped land north of the subdivision at the end of Crystal Springs Drive. The estuary at the east end of Point White Drive – the estuary/lagoon and the segment to the west (about 700 feet) appears to have natural features, other than the road, such as wetlands and beach frontage that fill shoreline jurisdiction and limit development potential. Along the Fort Ward Park shoreline - large parts of approximately 3/4 mile of frontage are completely intact within shoreline jurisdiction, other than the road. These areas, except for the intensively developed recreation areas should be Natural. Country Club Drive, west of Upper Farms Rd. – an ~1/4 mile segment is completely intact within shoreline jurisdiction, other than the road. Wetland/estuarine tip of Blakely Harbor – about 1000’, except for the intensively developed recreation areas. The harbor-side of the point (name unknown) north of Blakely Harbor - 750 feet is undeveloped within shoreline jurisdiction. North of Yeomalt Point – 1000 feet of bluff face between Pleasant Lane and Broomgerrie Rd. which is intact within shoreline jurisdiction. Murden Cove estuary – this area is largely undisturbed within shoreline jurisdiction, except for about 4 houses at the very edge of shoreline jurisdiction. The intact areas along the tip of Murden Cover are about 3500 linear feet. Along Rolling Bay – an ~¾ mile segment of bluff from Sunrose Lane to just south of Winthers Road is completely intact within shoreline jurisdiction. Bloedel Park – about 1500’ is intact inside shoreline jurisdiction, except for the intensely used recreation areas. At the end of North Street – approximately 800 feet of intact shoreline. Allowed Uses in Natural and Conservancy Environments. Our concern with the Natural and conservancy environments is best illustrated in the use table, which is new. Use intensity is not incorporated into the environment policies and the allowed uses for the protective environments. Consequently, the Use Table only allows five items in the Natural environment. On the other hand, the SMP Guidelines require the incorporation of use-intensity and is not so stringent – it limits uses to very low intensity development in the Natural environment and allows single family residences rather than prohibiting them. Limiting the uses in the Natural environment to so few uses has led to the application of Natural to only pristine locations (which is contrary to the SMP Guidelines) - mostly to areas that are already permanently and publicly protected. Unfortunately, this leaves all other areas with intact vegetation to be protected by environments that allow intense uses, and that allow structures and other modifications to alter the vegetation.
Bainbridge Island Planning Commission – SMP Update March 29, 2012 Page 3 We recommend that the Natural environment be applied and protected as described in the SMP Guidelines to implement the SMA preferences: Expand its application to additional areas, Edit the Use Table to allow additional low intensity development, such as low density residential (including their driveways, water wells, etc.) as a conditional use, and allowing mooring buoys for single family residences. Alternatively, if the City does not wish to expand the Natural environment, then we recommend that the uses allowed in the Island Conservancy and Shoreline Residential Conservancy environments be much more limited to low-intensity to protect the areas with intact vegetation. Highly Functioning Aquatic Areas. The “Potential Aquatic Conservancy” areas under the newly named Priority Aquatic A and B environments will significantly improve protection for high function aquatic habitats found in lagoons, spits, and coves. However, highly functioning aquatic areas outside of lagoons, spits, and coves are not protected. While the SMP includes criteria to designate these in the future, it does not designate these areas in this draft. Some of these areas are already well known and can be easily designated – particularly the Type 3 and Type 4 areas. The known areas should be designated, and then the criteria can be used to make additions later. One thing the draft SMP does is to protect aquatic uses by limiting uses based on the adjacent upland environment designation. This allows the protective uplands to serve as a proxy for aquatic areas and reduces incompatibilities. However, the small amount of areas designated as Natural, combined with the large number of intense uses allowed in the Island Conservancy and Shoreline Residential Conservancy environments leads to a low level of protection for aquatic areas uses using this strategy. We recommend that the highly functioning aquatic areas outside of lagoons, spits, and coves also be protected with two methods: Natural environment should be applied and protected as we recommend above so that the adjacent aquatic area are also protected. Designated the known highly functioning aquatic areas outside of lagoons, spits, and coves with Priority Aquatic in this SMP update rather than waiting till later. Organization of the Vegetation Protection Standards. The vegetation protection standards have been improved somewhat regarding its organization. The changes improve the referencing between sections, compared to earlier drafts, but it is still difficult to follow links between one section and another. The cross-referencing sometimes also bounces the reader in circles and adds-in inappropriate allowances that may not have been intended. An example is the cross-referencing between 126.96.36.199, 188.8.131.52, 184.108.40.206, and 220.127.116.11. An improved structure would be clearer, would have fewer potential loopholes, and would make the SMP easier for the public and the city to work with. We recommend building a more defined structure for the many vegetation and buffer standards similar to our previous recommendations. This will organize the vegetation standards, for clarity so that it will be easy for the user to determine the on-the-ground application of the many waivers, exceptions, and allowances. Vegetation Protection Standards for All Situations. The draft SMP includes revegetation standards (in the Environmental Impacts section and Shoreline Buffer Reductions section) which incorporate the concept of compensatory mitigation for additional development in already developed areas (enhancement in Zone 1). This language, however, only applies after the extensive development allowances found in Sections 18.104.22.168-11. This weakens the on-the-ground requirements for revegetation, which is the intent of this provision. Vegetation standards should address the different situations, as our previous recommendations do, including: 1) compensating for development in undeveloped and intact locations, 2) compensating for the many impacts of developing vacant land that is degraded, and 3) protecting intact vegetation outside the buffer. Finally, a new standard has been added at 22.214.171.124.2.c that allows undeveloped lots that are largely intact vegetation (being Zone
Bainbridge Island Planning Commission – SMP Update March 29, 2012 Page 4 1) to reduce the buffer by 25% if the developer makes the request, thus negating the intent of establishing buffers to protect intact vegetation. We recommend that standards protecting the ecological functions of vegetation be improved: Build a more defined structure for the many vegetation and buffer standards, similar to our previous recommendations, so that the treatment of all vegetation situations is clear. Address all different vegetation situations to protect their ecological functions. Delete standard 126.96.36.199.2.c. Ornamental Plants as Mitigation. Allowing ornamental plants to serve as mitigation for impacts does not replace lost vegetation functions, since they do not replace the functions of native plants, such as providing habitat for insects that are food for fish. We recommend that native species be required for compensatory mitigation plantings. Damaging Vegetation for Views. The draft SMP allows vegetation to be eliminated to create views (as well as view maintenance). Doing so allows non-water-dependent uses to cause ecological damage, when the SMP Guidelines say such development should be prohibited. We recommend that damaging vegetation for views only be allowed for maintaining existing views, not for creating new views. Roads cutting off buffers. Areas upland from roads should continue to be protected by the buffer where the vegetation contributes to the health of Puget Sound, for example where there is significant intact vegetation. To illustrate the problem, the draft provision allowing roads to cut off the buffer leaves all the intact vegetation behind the Fort Ward Park road (Pleasant Beach Dr.), and the intact vegetation behind Country Club Road unprotected. This vegetation still provides functions and habitat that help maintain the water quality and health of Puget Sound. We recommend that the first sentence of proposed 188.8.131.52.6 be modified as shown with our additions underlined and our deletions struck through: “6. Buffers that are not required to extend beyond an existing public paved road may be reduced, if or an area which is determined by the City to be functionally isolated from the shoreline or critical area the area cut off by the road has little or no native vegetation and has no enhancement potential.” Setbacks Allowing Development within Buffer. The new Use Table is accompanied by a complex and nuanced new Setbacks Table, and a new Buffer Table. In comparing the setbacks against the buffers, there are many instances where the setback falls within the buffer. The use of the setbacks will, in some cases, essentially negate the buffer. The following are a few examples. (1) All waterrelated uses are allowed at between 25-50 feet, even though they can usually meet the buffer. The SMA and SMP Guidelines, however, require that non-water-dependent uses not cause damage to the environment. (2) Non-water-oriented uses in the Shoreline Residential Conservancy environment are allowed consistently at 115’, even though many of these sites will have a buffer of 150’ (for undeveloped lots). This includes all the intact areas we recommend as Natural that are undeveloped. (3) Clubs and cultural facilities are allowed in Natural at 100’. (4) Park facilities that are non-waterdependent are allowed in the two conservancy environments at between 50-100’. (5) Entertainment facilities are allowed in the two conservancy environments at between 100-150.’ (6) Single family and multifamily residential has no setbacks listed – only a meaningless reference. (8) Utility buildings, tanks, etc. are allowed in the Shoreline Residential Conservancy at 50.’ There are additional examples. While some entries in the table include notes to protect Zone 1, they are at the same time giving an automatic buffer reduction for Zone 2. This setback table undoes the good work put into the unique buffer system, and in many cases the buffer widths are negated and replaced with the setback widths. We recommend that the Setbacks Table either be eliminated (thereby allowing the buffer system to provide this function), or that it be modified so that setbacks are not in conflict with buffers for non-water-dependent uses – including the modifications supporting the use.
Bainbridge Island Planning Commission – SMP Update March 29, 2012 Page 5
Buffer Table Widths. The new buffer table in the draft SMP is simplified, more understandable, and more consistent with ecological functions compared to earlier drafts of the document. There are, however, some buffer situations which are not protective of intact vegetation. For example, there may be large areas of intact vegetation in the Shoreline Residential Conservancy environment, where large lots have a house (i.e. they are developed) and thus get a 115’ buffer for the entire lot. These areas are not protected unless they are moved to Natural, as we recommend. In addition, the Buffer Table does include wider buffer widths for high bank situations measuring to the top-of-bluff plus 50’ (in a note), but only for four environments, and only for developed conditions. This is too limited and will not be protect ecological functions. The high bank buffer should be applied to all environments, whether developed or not, which is an approach common around Puget Sound. We recommend that the widths in the Buffer Table be modified as follows: Intact areas in the Shoreline Residential Conservancy environment should be moved to the Natural environment, including those that are developed with low density residential. The 115’ buffers cannot protect the intact blocks of undeveloped shoreline in these situations. If not, 150-200’ buffers should be included in this environment. The note dealing with buffers in high bank situations (top-of-bluff + 50’) should be applied to all shoreline areas. New Use Categories. The draft SMP defines and applies two new use categories: Educational and Community, and Cultural and Entertainment. These new categories are not found in the SMP Guidelines, and thus do not have regulations based on the Guidelines. Neither do they implement any of the SMA use preferences. The SMP guidelines do not allow jurisdictions to create new use categories in order to avoid required provisions of the guidelines. An easy solution is available: each of the possible uses in the new categories has an equivalent in the Commercial (i.e. offices, event facilities, entertainment facilities, etc.), Industrial (i.e. government maintenance yards, etc.), or Recreational (i.e. amusement or entertainment facilities) categories of the SMP Guidelines. We recommend incorporating the uses in these new categories into the existing categories, and eliminating the new categories. If new categories are still desired, use limits and regulations should implement the SMA preferences within them, as the SMP Guidelines does for the normal use categories. This will be additional work the City has to do.
Comments on new elements in the current draft SMP
There are significant new elements in the new draft of the SMP. These include the use tables, setback tables, and buffer table. As discussed above, the Setback Table allows development within the buffer, even though the development is not water-dependent and has no need to be in the buffer. It should be removed. The Use Table is one of the best designed use tables we have reviewed, though there are specific details for which we recommend changes. General comments on the Use Table New Use Categories In addition to the two new categories which we recommend (above) modifying, the Use Table also adds “Event, Recreation, Culture, and Education” as a category, which duplicates the other two. Similarly, there is a “Public Access Facility” category that includes transportation uses that should be moved to that category. As we previously stated, new categories are not allowed to be created to avoid the SMP Guideline requirements. We recommend that the uses in these categories be moved to the normal use categories, and the new categories eliminated. Otherwise, the new categories should incorporate water-dependency and use intensity distinctions. Development regulation amendments should be developed incorporating regulations that comply with the SMP Guidelines for similar uses.
Bainbridge Island Planning Commission – SMP Update March 29, 2012 Page 6
Uses V. Modifications The table separates the use categories from the modification categories, with the exception that Transportation and Utility uses are placed in the middle of the modifications. The problem is that uses are regulated differently from modifications. Modifications are required to meet the water-dependency and use-intensity limits of the primary use. They are not a use in themselves, and are not given water-dependency classification themselves (i.e., non-water-dependent uses should not be allowed to have in-water modifications just because the modification happens in the water. There must be some other reason, such as dealing with hazards (stabilization), water crossings for utilities and transportation facilities, providing access to the water for water-dependent uses, etc. We recommend keeping the uses in the first half and the modifications in the second half to avoid confusing the modifications provisions with the uses provisions. Alternatively, if the table is not reformatted, we recommend adding a note to all categories of modifications to reference them to the General Regulations for modifications, where appropriate limits are found. Modification Categories Similar to uses, modification categories also should be organized to be comparable to the SMP Guideline categories, or at least grouped into common headings for clarity. Also, some of the listings within use categories are modifications and should be moved with a modifications category. We recommend: Grouping all the accessory structure modifications into one category. Distinguishing whether some of the listings under Transportation are modifications that should be in the modifications half of the table. For example, it should be clarified if “Float Plane Facilities” and “Heliport” mean individual facilities, like a dock for a boat; or if they are larger terminal facilities like a ferry terminal. Individual facilities are modifications, others are transportation uses. Clarifying Trails: “Trails” for individual use are modifications for the primary use, while a public trail is a transportation or recreational use. Clarifying Stormwater Management: “Stormwater Management” is listed as a use, but should only be if it’s the primary use. Clarification of notations The table entries use the symbols (P / C / X / # / A / CA) that should be clarified. We recommend that the C and CA notations should clearly state that a conditional use permit is required. The P and A notations should clearly state that an exemption review or permit review is required. This may be implied by referring to Title 2, but such information makes a very important distinction to the average citizen. This is most important for the A notation, since people often confuse accessory development with not developments that do not require a review. Distinctions Between Environments The Shoreline Residential Conservancy environment, as currently established, will not protect the intact areas within them. It is described in the SMP as a protective environment, and applied to highly functioning areas as if it’s a protective environment. But such protection is not supported by the uses and regulations for the environment. For example, when one compares it with the Shoreline Residential environment, there are only five out of 72 entries that are different between them: two commercial uses that are prohibited instead of conditional, floats are prohibited instead of permitted, non-water-oriented recreation is prohibited instead of conditional, multifamily is prohibited instead of permitted. In sum, the Shoreline Residential Conservancy use limits are the nearly same as the Shoreline Residential; and thus the necessary level of protection is not provided consistent with the SMP Guidelines. We recommend that the Shoreline Residential Conservancy environment be strengthened to be more protective or that areas of intact vegetation within these areas be designated as Natural.
Bainbridge Island Planning Commission – SMP Update March 29, 2012 Page 7
Specific comments on Use Table entries We recommend the following changes to the Use Table: That Entertainment Facilities be prohibited in Aquatic environments, rather than listed as “N/A.” That Trails be prohibited in the three aquatic environments rather than listed as “N/A.” They would need to be boardwalks which are unnecessarily damaging. That High Intensity uses be prohibited in the two conservancy environments. All uses in the “Educational and Community Facilities,” “Cultural and Entertainment Facilities,” and “Event, Recreation, Culture, and Education” categories are very high intensity uses that are inappropriate for conservancy environments. According to the SMP Guidelines, only low-intensity uses should be in the conservancy environments. Include a better note for joint use of docks and piers. It should to be in the form of a regulation. Allow mooring buoys in the Natural environment, either as permitted or conditional. That Overwater Structures be at least a conditional use in the two conservancy environments, except for mooring buoys. That New Covered Moorage be added to the table. It is stated as prohibited in the text and the table should be consistent with the text. That Boathouses be added to the table. Since covered moorage is prohibited, this leaves boathouses as upland facilities. Since the SMP discusses them as in-buffer development, these are substantial storage structures or sheds at the water’s edge that should not be allowed to damage the protective environments. They should be added to the table, but should not be allowed in the two conservancy environments, unless the intact areas are moved to the Natural environment. That Golf Courses and Active Recreation Parks be prohibited in the conservancy environments. These uses by their nature require extensive clearing and grading, and bring many people to the site. Such activity will cause major damage to the two conservancy environments, where extensive intact vegetation and undeveloped areas are found. Changing intact areas to Natural reduces this issue. The list of recreation uses includes “non-water-oriented” recreation. For consistency, the names for active and passive recreation should include “water-oriented.” Passive Recreation Parks are allowed to have structures in the Priority Aquatic environments. This implies boardwalks for trails and similar structures in the most sensitive aquatic areas. We recommend that structures be prohibited by Note 14, as they are inconsistent with very-lowintensity development and the important Priority Aquatic habitats in these areas. That Event, Recreation, Culture, and Education facilities be prohibited in any protective environment. These facilities, such as a school or museum, are usually high intensity uses attracting large numbers of users. They will not protect sensitive shoreline areas. That Subdivisions in any conservancy environment be a conditional use to address the large number of complex issues, and the need for adequate mitigation. Subdivision in the Natural environment is inappropriate given that multiple residences often come with major or numerous in-water facilities. Consequently, we recommend that it should be prohibited in the Natural environment. One alternative we have observed in other jurisdictions is a standard for new lot lines to be placed outside shoreline jurisdiction, and the shoreline to serve as a common passive recreation area. That conflicts in the Shoreline/Aquatics Modifications category and the Aquatic environments be resolved. The modifications in the Shoreline/Aquatic Modifications category are mostly prohibited in in the upland environments, even though most will have upland components. At the same time, they are allowed in the aquatic environments (including Priority Aquatic), where they will cause the most harm. We recommend that all entries for the Aquatic environment should be “#” so that it is based on the adjacent upland environment. Most modifications should be prohibited in the Priority Aquatic environments, or at least a “C.” These modifications should be
Bainbridge Island Planning Commission – SMP Update March 29, 2012 Page 8 prohibited in Natural, as well as the two conservancy environments (unless intact areas are moved to Natural). That Groins and Weirs to the modification table to avoid leaving gaps that are not addressed, and they should be prohibited in the protective environments. The Hard Stabilization category includes many items, but groins and weirs are missing. These are specifically listed modifications in the SMP Guidelines. They are defined in the definitions, but not regulated. That the note for Hybrid Stabilization be edited. It has Note 1 applied, but that note is for aquaculture. Like other stabilization methods, hybrid structures should be conditional uses. That Soft Stabilization be a “C” in the two conservancy environments since extensive intact areas are found in the two conservancy environments. That Roads in the Natural environment be allowed to be repaired. There are roads in some of the intact areas we recommend for the Natural environment. These should be allowed to be repaired through a conditional use permit, just like the two conservancy environments. That Public Trails are listed as a “C” rather than a “P” in the Natural environment. Trails are listed with other transportation uses. That Trams are prohibited in the two conservancy environments, as they are in Natural, or at least a “C.” Trams by their nature have facilities close to the water. If the intact areas are to remain in the two conservancy environments, trams should to be limited to protect these areas. That Primary Appurtenant Structures be eliminated. It is unclear what their purpose is in the draft SMP. Normally appurtenance facilities are subject to the same use limits and permit review as the primary use. It doesn’t seem to be consistent to allow these structures if the primary use is a prohibited or conditional use. That the 14 notes accompanying the table be edited for clarity and consistency: Notes 1 and 8 are applied to “P”s or “C”s in the table. The note discusses what is “allowed” with the implication that only limited instances of these are allowed, and other instances are prohibited (but not saying they are prohibited). The table, however, already indicates that ALL instances are allowed with a “P” or a “C.” We recommend that in these situations, the table entry should be an “X” for prohibited, and then the note can provide the exception. Alternatively, the note can indicate that “all other instances are prohibited.” This is the approach used by Note 2 and we recommend that it be used for Notes 1 and 8 to ensure that the implied limits are actually in place. Note 7 addresses stabilization and flood control, but is not applied to the stabilization entries (only Note 4 is). Furthermore the note is applied to Surface Water Management, but the note does not address that subject. These inconsistencies should be corrected.
Thank you again for the opportunity to provide comments. Please contact us if you require additional information.
Dean Patterson, Shoreline Planner Futurewise
Heather Trim, Director of Policy People For Puget Sound
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