Too much 'Growth Control'
By Andrew Nisbet
July 19, 2001
Editor's note: Andrew Nisbet and
his family bought about 60 acres of land in Clallam
County, Washington, in the late 1980s. Over time, he has
sold some of the land, expanded an existing pond - to the
exacting specifications of the U.S. Corps of Engineers -
and in April, he started to build a home on 2.57 acres of
the original tract.
He encountered Washington State's "Growth
Management Act," as it is implemented through a
60-page local ordinance. His story is not unusual. He
served in the Washington State Legislature from 1977 to
1982, was a close friend of Governor Dixy Lee Ray, and is
well informed about procedures and law. Here is his story.
Here is
an extremely detailed presentation of a situation that I
feel should be brought to the attention of the public here
in Clallam County. To paraphrase Mark Twain, please
forgive the length of this letter but I did not have the
time or the temperament to write a short one. I also feel
that the issue is too critical and complex to be handled
in a short "Letter to the Editor".
Part One
On the morning of 13 June 2001, at my request, I was
granted a meeting with Mr. Bob Martin, Director of the
Clallam County Department of Community Development (DCD)
and members of his staff to discuss a problem dealing with
the Clallam County Critical Areas Code (c.c.c.27.12.).
At this meeting I was shocked to be blatantly informed
by the department's staff that any property owner in
Clallam County who owns land that has on it a critical
area or critical area buffer is responsible to restore
that land to a pre-mankind condition. No matter what has
happened to that land over the years, they claim the
current owner is responsible for any and all alterations
that have taken place since the arrival of man here on the
peninsula at the end of the Ice Age.
It was stated that the current owner is responsible for
all the alterations that have taken place over the
centuries and he can, at the whim of the department, be
required to restore the land to what the staff of the
department determine a post-glacier condition to be. This
restoration will be accomplished even if it requires tons
of topsoil to be imported into the area.
It was further stated that the staff has the power and
they would be the ones who determine just what the
pre-mankind condition is, and they have the final word on
how its restoration is to be accomplished. This was not
the final word on how its restoration is to be
accomplished. This was not just the staff's position; it
was all agreed to by the Department Director, Bob Martin,
who joined in the statement that it is the objective of
the department to return all critical areas and their
buffers here in Clallam County to a pre-mankind condition.
I was flabbergasted, and asked them to think of what
they were saying! Did they really think that they had been
given the authority to declare that all property owners in
the county that have what they have or in the future might
come to be critical areas or buffers, are now guilty of
breaking the county's laws and therefore are required to
restore their private property to a pre-mankind condition?
At the end of the meeting, I returned home and immediately
mailed a "memorandum for the record" of the
meeting to Director Martin.
Now 12 days later, I have yet to receive a response or
any other indication that my interpretation is incorrect,
therefore, I can only conclude that Mr. Martin and his
staff concur with my understanding of the meeting, the
claims they made, and that they intend to act accordingly.
I find it shocking that in a nation where a fundamental
principle of both the state and federal constitutions
provides us, as citizens, equal protection under the law
and gives us the ability to expect equal enforcement of
the law, that our county non-elected officials feel that
they have the power to define the code and the right to,
at will, pick and chose where and how they will enforce
their view of this current C.C.C. 27.12. [Critical Areas
Code]
Within a short distance of my current home, I can view
20 pieces of property where the owners are now unknowingly
in violation of the code as interpreted by the department.
Throughout the county there are thousands of property
owners who are unaware that they own property considered
by the county planners to be critical areas or buffer
areas.
These taxpayers do not realize that they are now
responsible for any change that has taken place since the
arrival of man in the area and that the county now claims
the power to make them spend thousands of dollars to
restore their property to a pre-mankind condition as
determined by the staff of the Department of Community
Development.
In view of the above, our elected officials have two
choices:
First. If they concur with the staff's position, they
are duty-bound by their oath of office to insure that the
enforcement of Clallam County Code 27.12. is applied
equally to all owners of land that have critical areas or
buffers.
By the staff's definition, all of these property owners
are now in violation of county law. The commissioners must
enforce that law and at once insure that all of these
owners are made to understand that even though they have
done nothing to their property, they are now required to
restore their land to its pre-mankind condition regardless
of cost, existing condition or the need to import tons of
soil to accomplish restoration.
Second. If the commissioners do not agree with the
staff's position, they should declare a moratorium on all
staff actions being directed under the current
interpretation of the code until they can correct the
staff and come up with a logical and workable solution.
This might require a recension or rescission of the
current code and the development of a new and logical
approach to the question of restoration and maintenance of
critical areas and their buffers. The staff should be
restrained until the commissioners act to correct the
problems the staff is and has been creating.
Part Two
So that you are fully aware of the background of my
13th of June meeting with Director Martin and members of
the staff of the Department of Community Development, the
following is a detailed explanation of the events that led
up to this meeting.
On the 27th of April 2001, I was issued a Cease and
Desist Order on the work being done for the placement of
my manufactured home on our property at 441 Nisbet Rd. in
Sequim. The order said that before I could continue
completion of my new home I would have to hire, from a
county-approved list, an expert and have him prepare a
mitigation plan for the restoration of a buffer area (and
wetland) that had been cleared and graded in preparation
of the site for the placement of my home.
On the 1st of May, after a careful examination of the
property and a detailed study of Clallam County Code
27.12, I sent a "To whom it may concern" letter
to the Dept. of Community Development and told them that I
agreed that on a small portion of the buffer (but not the
wetland) the rose bushes I had planted there 10 years ago
had been removed.
I told them that I had ceased work, had hired their
expert and would do what was necessary to restore the area
to the condition it was in prior to the removal of the
rose bushes. In this same letter I pointed out that the
area had, according to past County Commissioner Dick
Lotzgesell, a member of the former owner's family, for 100
years been a pasture. I further stated that I could not
find any portion of the code that required me to replant
the entire area.
Nor could I find any authority that could require that
I plant trees in an area that had been a hay field for
years. I asked that someone other than a Code Enforcement
Officer II look over the case and tell me to put the area
back as it was before my contractor cleared off the rose
bushes. I stated that if this were the case I would sign a
document to that effect and replant the disturbed area,
then we could all get back to work.
A week went by with no reply, so I called and asked for
a meeting with Mr. Martin, the department director. On the
16th of May, at the recommendation of Win Slota, the
enforcement officer for the case, I wrote to Mr. Martin.
My letter reviewed the events and asked that while the
problems of the wetlands buffer were being resolved for
the sake of all involved, I be allowed to continue work
and the county would have the final say on allowing our
move into the unit. I said that in the meantime the issue
of the buffer could be resolved as a separate issue. Mr.
Martin approved the concept.
On the 23rd of May I received a draft of my mitigation
plan prepared by Dr. Shea ( a department recommended
expert) and found that because Dr. Shea felt that it was
what the county wanted, he was recommending that I replant
the entire buffer to include the importation of tons of
soil and the planting of trees in the area.
On the 23rd of May I wrote to Dr. Shea and Director
Martin pointing out my disagreement with parts of the Shea
plan. I again questioned the planting of trees in an area
that had been for over 100 years a pasture. I also
questioned the planting of rose bushes in an area already
covered with hundreds of rose bushes that are rapidly
growing to cover the disturbed area, and are now four feet
tall. I asked for a meeting in an attempt to resolve these
and other issues.
The result of my letter was the 13th of June meeting
where I was informed of the department's position of
returning everything involved back to the conditions that
existed prior to the arrival of man at the end of the Ice
Age.
On the 16th of June, I received a letter from Associate
Planner, Dave Lasora, telling me that he had approved Dr.
Shea's plan and that the only way work could proceed on my
home was for me to complete the work required in Dr.
Shea's plan before any more work could be done on the
home.
At this point, I again contacted my attorney and asked
him if he could find a legal basis for the department's
position. He informed me that he had checked and could not
find a legal basis for their contentions. He also informed
me that he had checked with the county's attorney and that
she, too, was unable to find a legal basis but it was her
opinion that the county had the power to interpret the
code as they saw fit until a court decided otherwise.
On 21 June, after checking my savings account and my
current ability to borrow the $20,000 to $25,000 it would
require to take the matter to court, I had no alternative
but to write my 23 June letter. In it I am forced, for the
time being, to surrender to the outlandish dictates of the
department, and once they provide me with the answers to
some basic but very important questions, I will post a
bond and get on with the work of warning the hundreds of
property owners involved of the danger they face until we
can get the courts or the county commissioners to change
this outlandish position taken by unelected staff people
in Clallam County. (Enclosure #7).
Part Three
The situation has become even more bizarre as I have
attempted to obtain the services of a qualified nursery
person to aid me to obtain and plant the plants required
by the county mandate. One firm said they would not touch
this kind of work in the county with a 10 foot pole. One
other expert on local plantings laughed when I told him I
wanted 20 one gallon plantings of horsetails as required
by the plan. He said that he did not stock them because
they can be found beside any road or trail in the area.
I know he is right, because there are hundreds of them
currently in the area where I am required to do the
plantings. He also said that it would cost me more,
because it looked to him like he would have to chop down
rose bushes in order to find a place to plant the new rose
bushes decreed by the county. In the meantime, two lawyers
tell me that they are sparing no expense in searching out
an English-speaking mastodon so that they can truly
ascertain what the conditions were here on the Peninsula
prior to the arrival from the north of the first man.
To end on a more serious note, I really think that the
situation has gotten completely out of hand. For example,
at the 13 June meeting, I was informed by Dave Lasorsa, an
associate planner, that I was lucky, because he had just
ordered one old couple to plant their entire buffer area
in trees in order to return it to the forest area he felt
existed there in the pre-mankind era. I feel that the
public should learn just exactly how outlandish the
department's announced interpretation of county code 27.12
is, and what a usurpation of power is taking place by the
non-elected officials in that department. I would
appreciate your help in getting out the word!
This story also ran on eco-logic online, at http://eco.freedom.org/el/20010702/nisbet.shtml |