Too easy to build in Bainbridge wetlands?

When Karen Polinsky heard through the neighborhood grapevine that portions of a wetland in the Manitou Beach area might become home sites, she wondered how that could be.

After all, she believed, city policy was supposed to protect such environmentally sensitive areas.

To her surprise, Polinsky learned that under what is known as the Reasonable Use Exception, or RUE, an owner’s right to build generally trumps environmental protection.

“I don’t think the two projects in our neighborhood are particularly outrageous, but they are examples of what may be going on elsewhere,” she said. “I’m concerned about the policy island-wide.”

So Polinsky started investigating the RUE policies on Bainbridge and elsewhere, and concluded that the city might not be administering the exceptions reasonably – and may be granting RUEs more readily than necessary.

Her findings, presented to the Bainbridge Island City Council at the request of member Christine Nasser, have sparked a broad re-examination of the city’s RUE process.

“This is a serious issue,” Nasser said. “I’m not the only person on the island surprised you can develop non-developable properties.”

The problem involves the constitutional prohibition against a government’s “taking” of property for public use without paying compensation. While the “taking” question is a somewhat complex legal issue, environmental regulations can constitute a prohibited “take” if they deprive the owner of “reasonable use” of land.

The RUE procedure is designed to avoid the “taking” problem by permitting variances from building requirements to allow economical use of the land. And that generally means building a single-family home on those lots that existed prior to the enactment of wetland regulations.

“There has to be some reasonable use of the land allowed, and in residential areas, that is a reasonable-size house,” said Stephanie Warren, planning director for the city.

Before the RUE process begins, the city and landowner explore whether there is an alternative – such as granting variances from setback requirements at the perimeter of a building lot – that would allow construction without impinging on wetlands or their associated buffers.

If an RUE application is filed, it is referred to the city’s Wetlands Advisory Council, which includes four members with expertise in environmental as well as construction matters.

The final decision is made after the WAC gives its recommendation. Preliminary research indicates that the city has always followed the WAC’s recommendations, Warren said.

Polinsky’s concern, though, is that the answer is always “yes.”

“Since 1994, when the RUE permitting process was approved, there have been 45 RUE applications for owners to build in or near critical areas,” Polinsky wrote in her report to the city council. “All of these have been approved.”

That’s a question of semantics, officials say.

Wayne Daley, chair of the city’s WAC, says that committee has recommended denial of the the last four RUE applications presented to it.

“We were not saying that they can’t build,” Daley said, “but saying that the plan presented needed to be significantly altered.”

Warren agrees that the city has never flatly denied an RUE applicant the right to build. But she said the permitted intrusions have been relatively minor.

The city has never permitted construction of a house in an actual wetland, although on one occasion, an access road was approved through a such an area.

The granted RUEs have intruded only into buffer areas, she said.

Daley, a fisheries biologist, believes the city’s RUE program is working well.

“In the last four to five years, the city has done quite a good job,” he said. “It’s a problem of dealing with personal property rights when people want to build on lots that were unbuildable years ago.

“But in general, we’ve tried to deal with that in a manner fair to all.”

Mayor Darlene Kordonowy questioned the time requirements of the RUE process, which some view as cumbersome.

“I don’t know who we’re serving with all of the steps you have to go through,” she said. “If people were entitled to build, the process shouldn’t drag on for a year and a half.

“And we may not be serving the community if we’re looking at these issues piece by piece. Are we getting protections for our natural systems?”

The review

Those most directly involved are looking at ways to improve the process.

Warren met with the WAC recently to discuss Polinsky’s memo, and Daley is drafting recommendations to the Bainbridge Island City Council aimed at developing more specific criteria aimed at insuring that applicants are treated equally.

One area for improvement is the required mitigation, Warren said.

To satisfy a national standard that there be “no net loss” of wetlands, applicants who receive an RUE are supposed to contribute to creation of wetlands habitat elsewhere, generally through a payment. Warren said that follow-up has been sporadic.

Council chair Michael Pollock, also a fisheries professional, said any revision should look at such options as requiring native vegetation to be planted in and around wetlands, “to increase the habitat value to wildlife.”

Then there is the overarching question of how much “use” is required to be “reasonable.”

While a single-family home has been the norm, Polinsky questions whether the city may be giving up too much, and whether it could be pressing for a less intensive use, such as recreation.

Pollock tried to quiet that issue two years ago by proposing a critical-use ordinance that explicitly defined “reasonable use” in a residential zone as being a single-family residence similar in size and character to others in the neighborhood.

But the council, apparently deciding that such things should be judged on a case-by-case basis, rejected that language.

Pollock and Nasser agree that while the RUE issue is important, it may not present an emergency.

They plan to consider it during an upcoming review of the city’s critical areas ordinance, rather than deal with it immediately and separately.

Pollock said that there may be situations where the city opts to pay compensation to property owners, thereby allowing it to stop any development.

“If we don’t want to guarantee the owner some minimal expectation, maybe we should just buy the land from them,” he said.

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