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KAPO plans CAO counter-offensive

A capacity crowd gathered in Silverdale last Friday night to criticize the Critical Areas Ordinance (CAO), during an informational meeting about its nature and weaknesses.

“We need to make sure that the science used to make these decisions is appropriate and applicable,” said speaker Sandy Mackie, an attorney planning to challenge aspects of the ordinance in court. “But we all want to know how that buffer crossed the road.”

Mackie will represent the Kitsap Alliance of Property Owners (KAPO), which had sponsored the event in order to inform and galvanize its membership in anticipation of the upcoming court action.

The Kitsap County commissioners approved the CAO in December after a protracted examination process. The CAO’s most controversial aspect is the size of stream buffers, areas around wetlands where development is prohibited.

KAPO, for the most part, feels these buffers are too large and will unreasonably stifle new construction and remodeling projects.

“Every pond contains something living, even if it’s just pond scum,” Mackie said. “And just because there is a salamander living in a ditch doesn’t make the ditch a protected area. The question you need to answer is whether salamanders are doing well in Kitsap. And the answer is yes.”

During last year’s discussions, KAPO representatives called the CAO “an unprecedented land grab.” It also said repeatedly that public testimony was consistently ignored, a charge disputed by the Kitsap County Department of Community Development (DCD).

KAPO filed its complaint at the end of February, just within the state-imposed 60-day limit. The hearing is scheduled for late July before the Central Growth Management Board, and would then move to an appellate court if KAPO doesn’t get what it wants.

KAPO President Karl Duff said he expects the organization will continue its court battle until it either wins or runs out of money. Consequently, KAPO has ramped up its fundraising efforts to pay its legal bills and sponsor more events.

“We’ve found that many people need to hear about something about five times before they become involved,” he said.

During Friday’s presentation, Mackie tipped his hand about KAPO’s legal strategy, saying the organization would ask that the CAO should be struck down on grounds that it limited public participation, failed to document shoreline areas, failed to use “best available science” to support the program, failed to comply with the State Environmental Policy Act after each significant revision and failed to consider property rights issues.

Mackie said growth management law is one of the most complex legal fields in existence because it blends environmental law, land-use law, geography and three types of science —social, political and hard.

In several cases, answers to specific questions are in existing documentation. All that’s needed is someone who can interpret the paperwork. In other cases, a question from the public may expose a heretofore unnoticed flaw.

“Citizens need to understand what is being required of them, and they often need to have this explained,” Mackie said. “But if there are real consequences, there ought to be some objective standards we can use.”

One such example comes from rules governing shoreline. Contrary to popular belief, not all waterfront property automatically qualifies as a critical area but must be specifically designated as such.

Mackie said one prevailing point of view is, “The county did a great job. They made everyone unhappy.”

He said county governments may hide behind certain catch phrases so as to avoid responsibility for enacting an unpopular ordinance. Two of the most common are, “State agencies force us to do this,” and, “We are supported by good science.” Mackie said the most dangerous such phrase is “We have to act in order to be eligible for grants.”

“Saying that they know something is illegal but they need to pass it in order to remain grant eligible is not an excuse,” Mackie said.

KAPO estimated that about half of the 170 attendees were members. Also attending were two members of the Kitsap County Planning Commission, several candidates for public office and two DCD representatives.

While she was prohibited from discussing the case directly, planner Patty Charnas called the meeting ”a great listening opportunity for the county.”

Commissioners Jan Angel and Patty Lent, who were also instructed to keep their distance from Mackie, attended and drew differing reactions. Angel voted against the CAO and received robust applause. Lent, whose swing vote passed the ordinance, received a more polite greeting.

Both Duff and Henderson said they would like to present more forums, even bringing Mackie back for an encore performance — providing he could work in a shorter time period than the two hours and 15 minutes he used on Friday.

“I thought it went on too long,” Henderson said. “But I did learn quite a few things. And even at the end, people looked like they were caught up in the message.”

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