LETTERS ON DOE NONCONFORMING POSITION
December 29, 2009
Mr. Gordon White
State of Washington
Department of Ecology
P.O. Box 47600
Olympia, WA 98504-7600
RE: “TRUTH about 'non-conforming' shoreline structures,”
December 17, 2009, Department of Ecology Blog Post
Dear Mr. White,
I am writing in response to the above-referenced paper(12/15/09 DOE letter.pdf (757\k file)) authored by you, which I understand has been disseminated throughout the State of Washington. Stephanie Johnson O'Day, a local land use attorney, gave copies to me. Stephanie said she was personally contacted by Erik Stockdale of DOE with a request these copies be handed out at a recent Coldwell Banker Seminar about CAO/SMP. It was interesting to note that the letter and request for its distribution were made available shortly before the start of the Seminar.
I must say that your letter offends me. You seem to be concerned about CSA referring to the now well-known power point presentation: Non-Conforming Uses and Structures presented by Betty Renkor Oct. 25, 2007. Specially, you made some very judgmental and disingenuous statements about the facts that we have brought to public attention. Statements like: “don’t be misled," "important facts are being inaccurately portrayed," "unfortunately a rumor is getting legs," and "pretty scary stuff but it’s simply not true," are not helpful to our community which is trying hard to understand the impacts of proposed regulations and the DOE's role in the whole process. So far, we have seen no official retraction by your office of the statements made in Ms. Renkor's presentation. These comments may only serve to make those within the DOE feel better. Otherwise, these types of comments are useless and truly wrong.
For your information, many folks here in San Juan County do not have to be educated about the meaning of "non-conforming use." We already know how it works. In spite of what you are referring to as rumors, which you claim"are alarmist," the law is pretty clear (WAC 173-27-080) on non-conforming uses.
The most important point that you fail to acknowledge, in reference to non-conforming use, is the dramatic increase of non-conforming uses on properties that will result from, as you say, “modernizing Shoreline Master Plans and CAOs.”
I strongly believe that the majority of landowners in San Juan County have accepted the current non-conforming status rules currently in use. However, proposed new “non-conforming” restrictions to be placed on their home sites are over-reaching and not supported by relevant science. That is why we, and other groups like ours, believe it is important to educate as many citizens as possible about the consequences of non-conforming status and what this status has historically meant with regard to future restrictions on their property.
I hereby request that you and DOE disclose the real consequences of “non-conforming status” to every community that is and will be “modernizing” their SMP/CAO regulations within the State of Washington.
Such disclosure should be done in a presentation that could be posted on the San Juan County and DOE websites as an integral part of the CAO/SMP modernization processes. Within the presentation, DOE should specify common protocol and requirements for developing within a designated, non-conforming property such as: conditional use and/or variance permits, required public notices, additional studies, technical reports, and costs associated with such.
While I understand how you are defensive about information that many groups and citizens are posting on websites, mailers and other means of communication, I stand by the fact that we are currently educating our neighbors about our observations of the actions, public statements, comment letters and policies that are promulgated by the DOE, San Juan County, Washington State and Federal agencies. The truth is, the Common Sense Alliance www.commonsensealliance.net has, and is, striving to post accurate and honest information about the issues surrounding CAO/SMP updating processes. Unless you can specifically point to where we have erred, we would like an apology and/or clarification from you for what you posted December 17, 2009, on the DOE blog.
Michael W. Carlson
Chairman, Common Sense Alliance
Letter to County Council:
It has come to CAPR SJ's attention that Council members have been
emailing, and physically disseminating hard copies of a 12/15/09 letter.pdf (757\k file) written by Gordon White from the Department of Ecology (DOE). We respectfully request our Council members review our response letter (see below), and to send our response letter to each and every person those Council members have sent DOE's letter to.
Copies of our DOE letters, and requests are being sent via email and certified letter to: Polly Zehm (Gordon White's supervisor), Ted Sturdevant (Director, Polly Zehm's supervisor), Representative Lynn Kessler, and
Representative Joel Kretz.
Frank M Penwell,
President, CAPR San Juan
Regarding 12/15/09 letter.pdf (757\k file) being disseminated in Friday Harbor, WA
You wrote a letter as a representative of the Department of Ecology (DOE), making claims that rumors are being spread, and “…facts are being inaccurately portrayed." You also ask people not to be misled or confused, regarding "elimination" and "non conforming". You attempt to make it look as if DOE is sympathetic and working to preserve property rights.
In view of the facts currently in hand, your letter appears deceitful. In September 2009 an email was sent to your agency asking for comment on the October 2007 Renkor slide presentation. Ms. Renkor responded in an email: "I will need to review the presentation to determine whether it still reflects Ecology policy and thought. I probably will not be able to do that today, so will get back to you next week.” A response regarding DOE’s position on the PowerPoint presentation was received a week later, noting: “It still reflects Ecology (sic) thought on this topic.” In reviewing the whole DOE slide presentation referenced, our assessment remains that our interpretation is the most reasonable conclusion a person could come to, regarding Ecology’s position on “elimination” of non conforming uses.
As the DOE PowerPoint presentation notes, the legal concept is thoroughly grounded in the statutes and case law, so your assertions are questionable. We request that you clarify what you have stated in your 12/15/09 letter. Does your letter reflect a new DOE position?
We are hoping DOE is now choosing to work to see that our property is not going to be labeled "non conforming", thereby leading to eventual "elimination", as the DOE PowerPoint in question, and the email quotes, make clear, but your 12/15/09 letter contradicts.
Those of us concerned by what your subordinates have been saying in their presentations resent the assertion that we are spreading rumors, when in fact your agency is providing conflicting messages to the public.
If we are somehow “confused” by the plain language second point on slide 8, then what of the planners to whom the presentation was delivered in 2007? The experiences of citizens in different jurisdictions would tend to indicate that at least some of those planners went home and implemented the concept of eliminating nonconforming uses over time in local ordinances and their day-to-day practices in their local offices. Did they misunderstand the slide’s content, too? Regardless of your agency’s intent, the outcome in some jurisdictions is the addition of further onerous and expensive barriers being placed in the way of property owners seeking to realize their dreams in the use and enjoyment of their property. Of course, we would very much welcome an improved position or a positive change in direction from the Department of Ecology.
We look forward to:
1) A concrete, written policy assurance that your agency is no longer going to designate more of our properties as "special" or "non conforming" with every new regulation.
2) A concrete, written policy statement that "non conforming" status will not lead to eventual "elimination" of the use of any portion of our private property and including statutory support for that statement.
3) Your written apology for making it appear as if members of the public are deliberately misleading their fellow citizens concerning significant aspects of the use and enjoyment of private property.
4) A letter of correction issued by your agency and distributed to every recipient you addressed your original letter to.
5) Removal of the slanderous aspects of the article you posted on the Department of Ecology website (http://ecologywa.blogspot.com/2009/12/truth-about-non-conforming-shoreline.html)
We are very troubled by your agency’s apparent double standard and your accusation that your policies have been misrepresented by private citizens. The truth is that your letter appears to have arbitrarily changed an existing and well documented policy. We do not understand how you can accuse anyone of spreading rumors or misleading the public by presenting or commenting on your own unedited slide presentation. We invite you to set the record straight on this issue at your earliest convenience.
Frank M. Penwell, President
CAPR San Juan
Letter to Editor:
I'm writing in response to the two-page "letter" from Gordon White of the Department at Ecology that has recently begun circulating in the County. Mr. White's piece complains about "emotion" and "rumors" in connection with several pending proposals to substantially restrict the future use of property owned by citizens in San Juan County, and insinuates that people opposing Ecology are spreading misinformation.
Mr. White's comments can be paraphrased as "We've from the government, we're here to help you;" "trust us, we know better than you;" and "don't worry, we never make mistakes or do anything inconsistent with the law."
Mr. White seems genuinely annoyed that a number of citizen groups have undertaken to discuss and challenge aspects of the proposals in question. At the risk of further annoying Mr. White, I suggest that anyone who is interested in obtaining more information than Mr. White's self-serving public relations screed provides should review (1) which properties are likely to become "nonconforming uses" under the proposed new rules, and (2) what DOE has itself acknowledged as the consequences of that change in status--as set forth in DoE's own "nonconforming use" presentation, the applicability of which was confirmed by Ecology as recently as September 2009.
I've found the information posted on websites of the Common Sense Alliance, www.commonsensealliance.net and the Citizens Alliance for the Protection of Property Rights, www.capr-sanjuan.org particularly helpful; they provide a perspective different from that of Ecology and the myriad other state and federal agencies and NGOs seeking to determine the future of the San Juan Islands.
If you own property in the County, or hope someday to do so, you should read the proposed Critical Area Ordinance and shoreline "management" materials, sooner rather than later. sanjuanco.com/cdp/.