On April 7th, the Kootenai County Commissioners will hold a hearing on the first significant land use legislation since the election last fall. County staff, at the urging of some development interests, are proposing an amendment to the county ordinance that governs shoreline protection. Promoted as a needed fix to a dysfunctional ordinance, the proposed legislation (pdf) would create three exceptions to the County’s site disturbance ordinance which restricts development activities along streambanks and shorelines. In February, the Planning Commission, by a narrow 3-2 margin, recommended the legislation be forwarded to the County Commissioners for consideration.
The County’s site disturbance ordinance, as frustratingly unworkable as it can be, is designed to sharply limit the amount of construction in a narrow buffer strip along county waterways. It is intended to protect water quality by preventing sediment and nutrients and stormwater runoff from shoreline development and construction disturbances.
The problem, according to developers and builders, is that the restrictions also limit the ability to make repairs and improvements that could actually improve water quality protection. For example, proponents say fixing a failing retaining wall should be permitted when a failure would obviously cause huge amounts of sediment to be released. Unfortunately, the draft legislation goes far beyond a narrow fix to this sort of specific problem.
The draft legislation proposes three new “exceptions” to the site disturbance ordinance, describing the conditions under which the strict limits on development activity would not apply. The draft legislation’s most problematic exceptions is:
Exception 3: The Board of County Commissioners may consider and allow site disturbances, construction and improvements within the Stream Protection Buffer and/or Shoreline Protection Buffer where it is determined that the project is of such size, scale, regional economic benefit and/or nature that allowing the work to proceed is found to be in the best interests of the public, including but not limited to…
In other words, all restrictions on development in the shoreline protection zone could be eliminated for any project simply “found to be in the best interests of the public.” By its very terms, this exception makes shoreline water quality regulations a matter of completely subjective and standardless decision-making by the Commissioners. Especially for large projects with potentially large impacts.
Many of our local waterways are already impaired and already have very little protection against erosion and runoff. The sediments and nutrients choking the oxygen out of our lakes indicate a need for more restrictions, not more exceptions. The huge gaping loophole of “Exception 3” is the exception that eviscerates the rule.
The County recently adopted a variance procedure to allow development activity in cases of hardship, and the variance procedure could be applied to any of the exception circumstances anticipated by the proposed legislation. Therefore, this particular legislative fix may be more convenient but it isn’t strictly necessary.
Still, we don’t necessarily begrudge the County’s desire to make temporary fixes to a dysfunctional ordinance that can, occasionally, be counter-productive. However, this legislation proposes an overly-broad and dramatic change in established development rules. Such significant changes might be better left for the zoning and development code overhaul about to get underway. We will urge the commissioners to eliminate the sweeping “exception 3” language, and we’d encourage friends and members to do so as well.