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No Evidence Offered At Hearing That Larger Buffers Better Protect Waterfront

by Ralph Nichols [1]

If there was really any question about the primary focus of state regulators as they review Burien’s updated Shoreline Master Program (SMP), it was settled at Wednesday night’s (Dec.8) public hearing.

The Department of Ecology is “having trouble embracing” the 20-foot buffer adopted by the city council for residential reaches of the Puget Sound shoreline, said Bob Fritzen of the agency’s Bellingham office.

Ecology, which reviews all SMPs after they are approved locally, conducted the public hearing. The agency will approve Burien’s SMP, send it back to the city with suggested revisions, or reject it.

Recommendations written by the city’s Shoreline Advisory Committee, which represented the first round in a two-year process to revise the Burien SMP, included a 50-foot buffer plus a 15-foot setback along the developed marine shoreline.

A majority of Burien Planning Commission members agreed with the controversial proposal to expand the buffer – strongly opposed by marine homeowners – and kept it in the draft submitted to the city council in March.

But council members voted 4-3 in August against accepting the 50-foot buffer/15-foot setback, electing instead to adopt as a buffer the current 20-foot setback from the ordinary high water mark.

Fritzen, who questioned why the city council rejected the expanded buffer and settled on a 20-foot distance, said “we need more information … obviously we do have concerns about smaller buffers….”

Asked if Ecology has “hard evidence that a 50-foot buffer is better,” he replied that Ecology has “a lot of discussion on the record … that right or wrong [the buffer] ended up at 20 feet…. There’s no supporting evidence for 20 feet.”

He was then asked, “So there is no evidence to support 50 feet?” Fritzen shot back, “That’s not my answer. You heard my answer.”

A primary function of the local environmental regulations, mandated by Washington’s Shoreline Management Act of 1972, is the prevention of net loss of shoreline ecological functions. Yet “no net loss” has no clear working definition.

Fritzen stated that environmental protection is the “most important” criteria in determining shoreline development issues.

Ecology’s Geoff Talent observed, however, that protection of property rights is also a key factor in the regulatory equation that balances public interest and no net loss.

Following the hearing, Burien Mayor Joan McGilton told The B-Town Blog, “It’s in the hands of Ecology now. I hope they make the right decision.”

McGilton, an environmental engineer, didn’t elaborate on what a “right decision” may be. However, she voted with the minority to keep the 50-foot buffer/15-foot setback when the council opted for 20 feet last summer.

Michael Noakes, president of the Burien Marine Homeowners Association, told The B-Town Blog, “We are grateful for the willingness that the Department of Ecology has demonstrated to enter into a dialog with Burien’s residents and ensure a thoughtful and transparent review process.

“We hope that the Department of Ecology will appreciate the recent work that has been performed by the BMHA to add detail and clarity to the evaluation of existing conditions in Burien’s marine shoreline.”

He noted “this work adds further support to the correctness of the city council’s judgment that a 20-foot buffer and 150-foot vegetation conservation area are sufficient to achieve no-net loss given the fully developed nature our marine shoreline.”

That work is a new report – a detailed setback evaluation of the Burien marine shoreline – which, Noakes said, “will verify no net loss while providing homeowner protection” when submitting it for the record during the public hearing.

“Wider buffers do not improve the environment and increase the burden on homeowners. The importance of existing conditions shows why state law puts cities in charge of local SMAs,” testified Tadas Kisielius.

An attorney representing the BMHA, Kisielius said the existing buffer and conforming uses provide “a balance that gives the ecological protection you’re looking for.”

There are no regulations or case law defining no net loss, so a judge would have to turn to a dictionary for a definition, said Ron Franz, a shoreline resident and an attorney.

The definition the judge would find is “don’t make things worse,” Franz added. “The 20-foot buffer does not make things worse … it passes the legislative standard.”

Some marine shoreline homeowners also asked Ecology for greater flexibility in repairing and rebuilding bulkheads that protect their property from wave erosion – a need they said was clearly evidenced by last month’s windstorm.

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