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Spokane, Washington  Est. May 19, 1883

Commission Erred On River, Creek Buffer Hearings Board Also Says Penalties Must Be Part Of Growth Ordinance

FROM FOR THE RECORD (Saturday, April 12, 1997): Correction Clarifying who’s who: The Washington Environmental Council joined a Spokane environmentalist in challenging Spokane County’s “critical areas” ordinance before the Eastern Washington regional hearings board. A story in Friday’s newspaper listed only the individual.

Spokane County commissioners wrongly ignored scientific evidence when they decided developers can build as close as 200 feet to rivers and some creeks without harming the environment, a state board ruled Thursday.

The decision means new development may be forced farther back from the Spokane River, Latah Creek, the Little Spokane River and other major streams.

In addition, the county must have penalties for people who violate its ordinance protecting streams, forests, wetlands and other “critical areas,” the Eastern Washington Regional Hearings Board ruled. Commissioners deleted penalties from the “critical areas” ordinance just before adopting it in March 1996.

The county lost on other points as well.

“The county has to err on the side of not doing harm to critical areas,” said a Spokane environmentalist who goes by the legal name Easy. He challenged the ordinance.

“I guess we’re going to have to go back to the drawing board,” said Commissioner Kate McCaslin, who was elected after the regulations were set. McCaslin has argued that the 200-foot buffers are too strict.

Required under the state’s Growth Management Act, the ordinance was four years in the making.

The first draft was written by a citizens committee including Easy and other environmentalists as well as developers, farmers, loggers and other interests. The committee’s ordinance - a compromise among the divergent groups - recommended 200-foot setbacks along major streams.

The ordinance was tightened by the county Planning Commission, which called for 250-foot buffers.

County commissioners later held hearings, during which wildlife biologists and other scientists agreed the buffer should be 250 feet. Some developers and farmers testified that even 200 feet was excessive.

Commissioner John Roskelley, a member of the Planning Commission when it wrote its recommendations, favored the widest recommended buffer. Commissioner Phil Harris wanted only 50-foot buffers.

Roskelley and then-Commissioner Steve Hasson compromised at 200 feet.

“It was either compromise or it (the ordinance) would never have gotten on the books,” Roskelley said Thursday. “It had already been months” since the Planning Commission had made its recommendation.

During a March 5 hearing in Spokane, county attorney Rob Binger argued that while commissioners must listen to scientists, state law does not require them to follow the scientific recommendations.

“It (the biologists’ testimony) is in the record and it was considered.

That’s what the law requires,” Binger told the hearings board. He could not be reached for comment Thursday.

The hearings board didn’t require 250-foot buffers, but said commissioners must follow “best-available science,” unless there are sound reasons for not doing so.

“They have to base (decisions) on evidence that’s before them,” said Dennis Dellwo, a former state legislator who is one of three members on the hearings board.

On the matter of penalties for disobeying the ordinance, the county argued it already has the ability to withhold permits if builders don’t follow the rules. That, the hearings board wrote, “gives us little comfort.”

The hearings board also ruled:

Studies showing how proposed developments will affect wetlands must be conducted by wetlands specialists.

Binger argued at the March 5 hearing that a landowner could write the study himself, as long as it contained all the required information.

The county must require protection of the most sensitive marshes, even though biologists haven’t found any such wetlands in the county.

“If a Class I wetland were found, the county must protect it,” the board wrote.

“Critical areas” can’t be exempt from protection solely because they are found in an urban area.

The county can’t exempt some wildlife from protection solely because the state hasn’t yet written a management plan for the species.

“The county is able, with a properly trained biologist, to devise a management plan,” the board wrote.

Thursday’s ruling was the first involving Spokane County to come from the hearings board.

The Eastern Washington board and two others in Western Washington are controversial because GMA opponents say they interfere with local planning. Supporters say if not for the boards, some counties would ignore the law and disputes would be settled in court.

, DataTimes