Kitsap County Planning Commission, meeting on Aug. 23 at the Bob Oke Long Lake Community Center, to discuss the CAO.

The Kitsap County Planning Commission is set to have a lengthy public hearing soon on the proposed updates to the Critical Area Ordinance (CAO), but a number of the planning commissioners themselves say they still have many unanswered questions left. At a recent planning commission meeting, the board voted 5-4 to table any action on the ordinance until all their questions are answered, but since the CAO wasn’t advertised as being on the agenda, that motion was ruled invalid by county attorneys.

One commissioner noted that his colleagues brought up many questions, but no changes have been made to the draft. While much of the rules remain the same, the new proposed buffer structure and the classification of the critical areas are among the more contentious issues.

For most streams that have fish in them, the new buffer would be 150 feet. For wetlands, however, the current 200-foot buffer would be traded for a flexible system with buffers between 50 and 250 feet. In neighboring counties, buffers for the most critical category of wetlands are in some cases only 100 feet.

“My main concern is the broad paintbrush approach to critical area buffers,” said Dean Jenniges, one of the commissioners who voted to table the proposal. “If the critical areas are so critical, how can you have an exchange?” he said.

The proposed changes by county planning staff in buffer requirements create a “flexible buffer” approach to areas like wetlands. County officials said the changes use what they term an accepted version of “best available science” — a concept questioned by many members of the public and some of the Planning Commission. Jenniges says some of his research shows much smaller buffers are acceptable, but that staff is unwilling to even consider any other “best available science” besides what they’ve used to justify the large buffers in the CAO.

“We’ve received a significant amount of comments saying our buffers are too high, and a significant number of comments saying the buffers are too low, and they both come with best available science,” county planner Eric Baker said at a planning commission meeting in June.

County planners say the proposed buffer structure will accommodate the most necessary functions of a stream (such as temperature, micro-climate control, and erosion) while also allowing for flexibility on each site. But it’s that flexibility that worries some property owners as well as several of the planning commissioners. One fear is that the “flexibility” planners are proposing comes down to basically a site-by-site bureaucratic interpretation, and that based on past history, 250 feet will very quickly become the defacto standard.

Other serious questions about buffers posed by planning commissioners remain as well. For example, since a road basically negates the impact buffers are supposed to have, if a county road meets a buffer, does the buffer cross that road or stop there? If it crosses the road, shouldn’t the county have to move that road so it doesn’t intrude upon the buffer area? Not doing so, could put the county in violation of its own ordinance as it is currently proposed.

“This Critical Area Ordinance has a lot of flexibility. It’s not something KAPO (Kitsap Alliance of Property Owners) sees as an advantage — the flexibility is with the staff,” said Vivian Henderson, KAPO executive director.

“The whole county could be a critical area, the way the regulations are written. What the county is asking us to do is sign a blank check… It’s outrageous,” she said.

The regulations would designate certain critical areas as open space, which becomes undevelopable. Henderson and others say that puts the burden on the property owners to continue to pay taxes on the land while not being able to do anything with it.

One question the Planning Commission has asked, and county planners have yet to answer, is when all the proposed critical area buffers are factored in, what is the total value (within $5 million) of the land that is currently not subject to the CAO, but would immediately become unusable if it is adopted as written? Several of the planning commissioners suspect it is in the nine-figure range.

Another issue that has the planning commissioners very concerned is that one section of the ordinance calls for buffers to be listed on the title of a property — in perpetuity. This could cause problems when a property owner goes to sell, and may make it difficult, if not impossible, to get a mortgage. That brings the taking issue into play as well. Is it a taking, if county regulations make it impossible for a property to be financed so it can be sold? The only way to answer this question is in court, and planning commissioners have questioned the wisdom of spending what will certainly be millions of taxpayer dollars to find out.

Planning Commissioner Mike Gustavson has repeatedly asked staff why the definition of “Critical” is not a part of the CAO. “Just because a piece of property is wet, doesn’t make it critical,” he insists. “The county needs to define exactly what ‘critical’ means in terms of this ordinance, as well as define exactly what problem it is we’re trying to solve here.”

“The most fundamental aspect is the issue of equity; only underdeveloped property is asked to pay the societal price for the environmental protection while areas already developed are not paying for it,” commented Art Castle, executive vice president for the Homebuilders Association of Kitsap County (HBA).

The Critical Area Ordinance was first adopted in 1988 with the goal to protect the environment and especially sensitive areas such as wetlands and streams. By state law, the county has to review the regulations by the end of the year and complete any updates deemed necessary. That’s another question on the minds of several Planning Commissioners — how necessary is any “update,” especially considering the law only calls for a “review,” and the fact other counties have considerably smaller buffer requirements that have been approved by the state?

A public meeting to explain the changes was held in August, with more than 180 people packing the Norm Dicks Government Center. But Henderson said it didn’t offer the opportunity for the people to speak, and left most of their questions unanswered.

“When the county presented the ordinance to the people, they left out the parts that were seriously intruding on property rights,” Henderson said. “Our biggest complaint right now is the county’s refusal to involve the public, as required by law.

At a fairly contentious Planning Commission meeting held August 23, the commission voted to hold a lengthy public hearing spanning an afternoon and evening, so citizens could come and fully express their views, before proceeding with any additional work on the CAO. County staff is attempting to find a date that works for all nine planning commissioners.

Kitsap County planners and officials did not return several phone calls asking for comments for this story.