An eye on after-the-fact permits

Published 4:51 pm Thursday, February 5, 2009

Is the practice appeasement or common sense?

Bulkheads have been bolstered overnight. Trees are cut down to make room for home additions. Citizens have torn-up city streets to do their own utility work.

The common link between these projects? None of them had a permit.

However, the city’s after-the-fact permitting process makes it possible to bring these projects into compliance, for a fee.

Some believe after-the-fact permitting is remedial, others think it’s a way to circumvent land-use regulations.

One island resident who knows a lot about after-the-fact (ATF) permitting is Tom Morgan.

He has seen an un-permitted dock built in three days near his residence, but he’s been fighting his own after-the-fact battle with the city.

In 2005, Morgan brought in 50 cubic yards of sand, and at least 50 yards of river rock and pea gravel, and had it dispersed on his south-end shore. He was soon cited by the city for failing to achieve the proper permits, but after a long legal process was issued an ATF permit.

This week, the city’s hearing examiner listened to reasons given by the city as to why the ATF permit was issued.

“I believe the materials were placed to make up for the loss of beach due to erosion,” said city employee Josh Machen at the hearing. “If this were not an after-the-fact permit, it is likely the city would have asked the cobble to be of smaller diameter.

“The city has concluded it would be more damaging to try and remove the cobble at this point.”

It may be a subtle bending on the rules, but it alludes to how the city uses ATF permits – largely to settle disputes and bring landowners into compliance.

“It’s a perplexing process,” Morgan said. “In my experience (ATF permits) are used to resolve disagreements, as a way of effectuating a compromise.”

“I wish they would use after-the-fact resolutions more broadly. It could be a way of resolving issues as a matter of policy, but there seems to be inconsistencies on a lot of issues.”

That could be because the city’s process is still in flux.

How it deals with repeat offenders and the fees imposed for ATF permits are still being reviewed. Things may change when the city finalizes its land-use code update in 2010.

“We are working on this process. It certainly is not set in stone yet on how we handle the situations,” said Meghan McKnight, the city’s code enforcement officer.

In many ways, the city policy is geared toward education and equality, rather than punishment.

The city has the ability to impose daily penalties for each, but in most cases the city files a singular penalty as an educational measure meant to serve as a deterrent to future violations.

But, according to Charles Schmid, a member of the Association of Bainbridge Communities, many property owners may simply be paying their way out of the regulatory framework.

“It used to be citizens getting up and saying you shouldn’t have done this or that,” he said. “Now it’s a matter of money against money. If someone has millions of dollars invested in a project, they don’t mind spending a few extra thousand to make sure things go through the way they want.”

Problems with after-the-fact permitting have cropped up around the Puget Sound.

Last year in San Juan County, the harvest of old-growth trees sparked a furor among the community.

A study also found that all the docks in San Juan Island’s Mitchell Bay were, on average, 50 percent larger than their respective permits allowed for.

The events led county councillors to push for a more rigid stance on permits.

The San Juan County council will be voting on new regulations that will increase ATF fees five-fold and will allow the county to proceed directly to civil penalties for landowners and contractors who violate permitting code.

The code enforcement officer in San Juan County, Jeff Wasnick, said that the previous regulations were considered by many to be lax.

“The way the system was, the main intent was to educate and work with (landowners) to comply and to use civil or criminal charges as a last resort,” Wasnick said. “I do think people saw that and said, ‘I want this done, so we’ll do it and if we get caught we’ll just pay the double fee.”

Wasnick and McKnight both said that many landowners are unaware that they need permits. That could be one of the reasons why many permit-dodgers go unnoticed.

The city also largely relies on citizens to report permitting violations in their neighborhood.

But, in many cases, calling the city leads to bitter divisiveness among neighbors.

One resident, who has gone through the ATF process and declined to be identified for this article, said that one land-use complaint sparked many others in his neighborhood.

“We had pointed out some glaring violations of land use issues and the offenders retaliated to the city that I did some work without a permit,” he said.

Rather than fighting the issue, he paid for the permit and necessary environmental evaluations. Though he thought much of the process was frivolous, he understands the city’s approach.

“I think it is a way of making everyone on equal footing according to the requirements. They were trying to resolve a neighborhood issue,” he said. “I feel bad for the city because they have to deal with so many land-use issues. People seem to get upset with what the neighbors are doing.”

The involvement of neighbors in enforcing city regulations is also another downside of the process.

“That’s the trouble with a lot of this,” Schmid said. “Being a small community, when enforcement comes, people hesitate, even myself. It’s becoming more about people than the irresponsible use of property.”