Burien Council To Hold Final SMP Discussion Monday Night Starting At 6pm

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by Ralph Nichols

Burien City Council members are set for what they anticipate will be their final discussion on Monday, Sept. 13, of updated shoreline regulations before adopting a revised Shoreline Master Program (SMP).

The meeting will again begin at 6 p.m. – one hour earlier than usual – to accommodate a busy agenda that also includes a public hearing on the city’s preliminary 2011-2012 biennial budget.

If all goes as both lawmakers and city staff hope, the council will then adopt the new SMP on Sept. 20. After that, the document will go to the state Department of Ecology for review, including another public hearing, and final approval.

Burien’s revised SMP was scheduled for adoption on Sept. 13, but following an Aug. 30 public hearing council members gave themselves additional time in which to review staff responses to both new citizen comments and their own questions and concerns.

The latest matrix summarizing city council comments about proposed SMP updates and staff response begins on page 188 of the packet for their Sept. 13 meeting. It is available online here (PDF file).

Other information about the SMP discussion in the packet – including a proposed ordinance to adopt the document – begins on page 185.

Voters statewide approved the Washington Shoreline Management Act in 1972, which required that local governments develop comprehensive programs to regulate development and other activities along both marine and freshwater shorelines.

In 2003, the Legislature mandated the updating of local SMPs by 2014 – a process involving more than 260 cities, counties and other jurisdiction. To date, only about 30 updated plans have been completed, and reviewed and approved by Ecology.

The Burien Shoreline Advisory Committee spent more than a year developing proposed changes to the city’s SMP, then sent it to the planning commission in January. After three months of review and taking public comment, the commission forwarded its version of the document to the city council.

Ecology contends this round of regulatory activity is necessary because “old shoreline programs need to address current conditions, consider new science, and be aligned with current laws.”

Concerned property owners and business interests, however, question the motives of Ecology and environmental groups that are pushing for restrictive updated shoreline regulations.

Recognizing problems in applying the “best available science” to shoreline management – the criteria required by the state’s Growth Management Act for regulating critical areas – the 2010 Legislature changed the criteria for shorelines to “no net loss of ecological function.”

This action did not occur in a vacuum. In Futurewise v. the Growth Management Hearings Board, stemming from Anacortes’ update of its shoreline plan in 2005, the State Supreme Court held that the Legislature intended for critical areas along shorelines are to be governed by the SMA, not the GMA.

However, no definition of what constitutes “net loss” was provided by the Legislature – and no scientific definition of the term was presented to the city council earlier this year by environmental scientists, including a representative from Ecology, who explained shoreline functions to them.

Ecology recently added to its shoreline management website page (see it here) wording that provides some general descriptions of “net loss.”

A paper on shoreline buffers, presented to council members at the Aug. 30 public hearing by Rick Forscher, president of the King County chapter of Citizens Alliance for Property Rights (CAPR) and a SeaTac city councilman, states that buffers are not required to protect shoreline areas.

Buffers have been a major point of concern for city residents living along Puget Sound, who organized the Burien Marine Homeowners Association to represent their interests.

Included in the original SMP update received by the council was a proposed expansion of the existing 20-foot setback from the ordinary high-water mark to a 50-foot buffer plus an additional 15-foot buffer for any new development.

Council members opted to retain the 20-foot setback and rejected the expanded buffer by a 4-3 vote on Aug. 16.

The paper, by Steven F. Neugebauer, principal environmental hydrologist with SNR Company of Duvall, Wash. (www.snrcompany.com) said “there has never been specific studies conducted in Puget Sound Lowlands … that demonstrates that buffers or building setbacks are required to protect fish and wildlife from residential development.

“The requirements for buffers and setbacks has been largely driven by Ecology, but in 29 years of conducting environmental studies, I have not found a single study … that demonstrates that buffers and setbacks provide any protection….

“What I have found is a lot of assumptions and incomplete studies, but none that should meet the level where a municipality will use their police power to take away a property owners’ constitutional rights guaranteed to them under the 5th and 14th Amendments to the United States Constitution and the Washington State Constitution, Article I, Section 16, which provides in part that ‘[n]o private property shall be taken or damaged for public or private use without just compensation.’”

Neugebauer also noted that “net loss” is considered a loss of ecological function beyond existing shoreline conditions and development at the time a new SMP is adopted, and not previous changes to a shoreline.

The determination of when “net loss” is calculated was a question raised earlier by council members.

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