>High Tides, Port Comments,&Annexation Proposal? – 1-26-11

>High Tide Responses.  We receive some interesting comments regarding the supposedly high tides this past weekend. 

Walking On Water?  “One time, shortly after WWII, the tide was just above the decking on the Illahee Community dock and when we walked out to the end, it appeared we were able to walk on water.”  We attached a photo of the high tide on Monday, which was a 13.6 foot tide, to give you an idea that a tide that would cover the decking would need to be at least 3 feet higher than it was on Monday.

Rue Villa Resident Comment.  “Yes, High tides?, not very high. I began thinking the forecasters got everything wrong. In our 44 years here at Rue Villa we’ve had much higher. Weather conditions were fairly mild though.”

Highest Recorded Tide at Brownsville.  This data link specifies the maximum observed tide at Brownsville of 14.19 feet in 1980!  http://www.nws.usace.army.mil/PublicMenu/Documents/Reg/applications/tides/np/np66.cfm

Corps Salvage Vessel.  The US Army Corps of Engineers (USACE) has a salvage vessel that retrieves debris in the Sound waterways, and was out on Monday in front of Illahee.  Their logo can be seen under the name PUGET.  We happened to see it and snapped the attached photos.  It had just picked up a 55 gallon barrel with a 2×6 frame that was evidently part of somebody’s float.  A little while later it picked up a log just past Illahee State Park.  The debris is placed on the center deck where the barrel and logs can be seen.

Monday’s Port Article.  Sunday’s Kitsap Sun feature was on the 12 Kitsap County Port Districts and discussed a proposal that they be consolidated.  On Monday they presented the Port of Bellingham, where consolidation has already taken place.  We thought these articles would have generated numerous responses to their website comment section, but they didn’t and we are wondering if it was because many of the normal commenters were following the Walmart shooting.  The link to the Monday article is:  http://www.kitsapsun.com/news/2011/jan/23/countywide-bellingham-gets-more-bang-for-its/

Port Comments.  While we received verbal comments to the Sun’s Port articles, we received only two emails, which follow:
If you loose the small community ports the community bond will be stripped.
If Bremerton Port is such a great port why does it need tax revenue or even the possible combined revenues of the Kitsap county small ports. It should be generating free cash with banks lining up to inject money into their ventures. That little bit of venting released, I truly wish Bremerton nothing but the best but do not compare Bremerton with the small community ports. I appreciate what Bremerton has done but Bremerton is about jobs and revenue as the small ports are all about the community.
Brownsville is fortunate to have been able to develope its port and being so well established is more or less assured a future as a community while other ports have little more to offer than a priceless scenic view.
It goes that proposed consolidation is nothing but future elimination of small ports and capture of revenues. The best the future could hold for small ports is a ramp as docks would be deemed to be too expensive to maintain with chains and chain link fencing. Small ports would have to go beg with strong community backing for each morsel of funding. As there would no longer be port commissioners the chance of obtaining anything for the community would be remote.
Loss of a port would pull the revenue and much of the voice out of the small communities and then the eventual loss of a community identity. The identity of Kitsap County has been built up around the developments of the small ports.
We need to see the small ports as a positive feature of Kitsap County.
Well, after reading the articles, I continued my confidence in our port commissioners and increased my pride in their performance.
I just have no words to describe how foolish I would consider any prospect of merging with any of the listed districts.
It does seem to me that the Port of Bremerton (which, I think has the highest rate of assessment) could annex some of the East Bremerton land previously held by the Navy and, for that matter I would think that Bainbridge would be an attractive addition to their scope.  If I lived there, I would be really interested in establishing a separate district to preclude annexation by Bremerton.

Annexation Proposal?  We read in the Kitsap Sun on Wednesday (1/26/11) the county is evidently proposing that cities annex nearby communities in order relieve the county of infrastructure costs.  This has the potential to directly affect Illahee.  The attached link provides more details. 

Kitsap County wants most urban areas annexed into cities within five years.


KRCC Proposal.  We just read some of the Kitsap Regional Coordinating Council’s proposal and it appears to be the case.  The link to this document is:  http://www.kitsapregionalcouncil.org/library/D%20-%20Countywide%20Policies/Dec%202010%20Proposed%20CPP%20Changes%20for%20Public%20Comment.pdf

Public Hearing Thursday Evening.  There will be a public hearing on Thursday (1/27/11) evening at 5 pm at the Norm Dicks Center.  We copied and pasted the following information from their website.
Proposed Revisions
to the Kitsap Countywide Planning Policy are available
for Public Comment until
January 28th, 2011.
Public Hearing:
January 27th, 2011
5:00 p.m. to 8:00 p.m.
Norm Dicks Government Center
,Main Meeting Chambers, 345 6th Street, Bremerton, WA.
Send Public Comment to:
or mail to KRCC office (see far left panel for address).

Our Initial Comments.  In our quick read through their proposed revised policy document we have the following initial comments:

1.  There is no discussion of Subarea plans such as Illahee’s, and what the impacts would be with the adoption of this policy.
2.  It sounds like communities such as Illahee would be given an opportunity to either incorporate or be annexed.
3.  When Illahee’s Subarea plan was going through the adoption process, we were told to remove all the commercial corridor along SR 303.
4.  Illahee is then left with mostly park land, open space, critical areas and a greenbelt, which isn’t enticing for any city to want to annex, but according to this policy, they wouldn’t have a choice.
5.  We are somewhat removed from Silverdale, should/when it becomes a city, so it seems we are likely in Bremerton’s projected future annexation boundary.
6.  When asked by Illahee residents several years ago whether they wanted to be part of Bremerton or Silverdale or create their own Subarea plan, the results were 2%, 6%, & 92%.
7.  There is a statement that “adjustments” can be made to the Urban Growth Areas (Section B.3.k).  
8.  Does this mean the Illahee could propose to be removed from the UGA?
9.  Do we ask these questions at the public hearing, and/or do we discuss these at the next Illahee Community meeting?

Let Us Know Your Thoughts.  Let us know how you feel about these possible annexation issues that are suddenly before us again.

Attend Thursday’s Meeting?  More importantly, it may be better to attend Thursday’s public meeting at the Norm Dicks Center, or send your comments in by Friday.  

Jim Aho

>Timbers Edge Decision Monday Evening – 10/11/09

>Important Decision Monday.  The Illahee Community’s future look will in many ways be decided on Monday, October 12, 2009, when the County Commissioners decide on how to rule on the Illahee Community Club’s (ICC) appeal of the Hearing Examiner’s Decision that approved the Timbers Edge project.

Many Concerns.  The community concerns are many and they have been presented in earlier updates.  The big ones are the the small lots (mostly 3400 sq ft), the number of houses (112 on roughly 12+ acres), the traffic on a small roadway (Fir Drive), stormwater issues, sewer issues, and the impact on Illahee Creek and the underlying aquifers.  

Complex Appeal.  Because there are so many issues the chances of the Commissioners making a decision favorable to the community appears remote based on what we have seen so far.

ICC Brief.  At the last Commissioners meeting the two sides were asked to prepare briefs regarding the Modified Proposal introduced by Commissioner Brown.  The ICC was given until Friday to complete their brief.  At the Commissioner’s work study session this past Wednesday none of the Commissioners had seen the brief even though it was sent to the Board person on Friday, and therefore there was no discussion regarding the Modified Proposal and the submitted briefs. 

ICC Brief Attached.  We are attaching the brief the ICC attorney, Ryan Vancil, sent in.

Attendance at Commissioner Meeting Important.  We have been asked to remind community members that attendance at the Commissioner meeting is important.  The Commissioner meeting starts at 7 pm on Monday evening October 12, 2009.  Decision only agenda items are normally at the end of the meeting.  Comments can be made after the decision when 3 minutes is allowed for public comment.  The meeting agenda is always posted on the county website.

Update Being Sent From Midwest.  We just were able to get sustained internet services while traveling in Minnesota, Iowa and Wisconsin, so much of this information is gathered from emails provided to us.

Jim Aho

>Beach Nourishment Hearing Report – 10/1/09


Informal Hearing Held 10/1/09.  The informal hearing of the the Illahee Beach Nourishment project was held at the DFW offices in Port Orchard on Thursday (10/1/09).
Illahee Attendees.  The Illahee Community Club (ICC) members attending were Jim Brady, Don Jahaske, Linda Hinde, Judith Krigsman, and Jim Aho, and consultant Dale Thoemke.
Primary ICC Issue #1 – Siltation.  The primary issue for many of the Illahee residents living near the mouth of Illahee Creek is the excessive siltation that is destroying shellfish, clam and oyster beds.  Pictures showing the gooey mud that exists north of the mouth of Illahee Creek were presented.  It was noted that the depth of the silt under the nearshore float of the dock is 32 inches at the south end, and 24 inches at the north end.  The concern is that by placing the dredged material, which contains silt along with sand and pebbles, on the beach we are increasing the sedimentation problem in the area and further damaging the shellfish.  Dale Thoemke noted that it doesn’t take much sediment to damage eel grass and shellfish beds.
Primary ICC Issue #2 – Human Intervention.  The other issue that was presented was trying to understand why we are trying to interject human intervention into an area that has not been documented as needing “beach nourishment.”  The response was that all beaches need sediment and because littoral drift is moving sand down the beach, then any extra sediment in the area should be placed on the beach, evidently because you can never have too much sediment.  We tried to explain that our problem with Illahee Creek already is excessive sedimentation caused by unmitigated storm surges, and we really don’t have a sediment deficiency problem.  In other words, why would DFW propose human intervention into a natural process that has not exhibited any problems? and especially when that human intervention will accelerate or exacerbate the siltation problem further?
Community Input?  So far, from the people who we have talked with, the concensus is this is a really dumb idea.  We generally try to stay neutral when reporting, but we have to agree that we don’t understand the rationale behind this project.
Results In November.  The results of the Port of Illahee informal hearing in Olympia, and the Illahee Community Club informal hearing today in Port Orchard, will be issued in November 2009.  If the informal appeal fails, and they most often do, then either or both groups could file a formal appeal that would go before a judicial person. 
Your Thoughts?  The ICC would like to know your thoughts on this issue.  Please let them know by responding to this Update with a short note so they know how the community feels about it.  If it is just a few waterfront owners around the mouth of the creek who are concerned and others could care less, then the ICC needs to know it.
Jim Aho

>Illahee Beach Nourishment Appeal Thursday in Port Orchard – 9/30/09


Informal Appeal of Illahee Beach Nourishment Project.  As stated in an earlier Update, the Illahee Community Club’s request for an informal appeal of the Illahee Beach Nourishment project was finally approved.  We promised more information on the Illahee Beach Nourishment project, so this is what we know.
Connected to the Dredging of Illahee Culvert.  The county has a blanket HPA (hydraulic Project Approval) to dredge out all culverts in the county.  The “Illahee Beach Nourishment” project is a new HPA to take the dredged material and place it on top of the Schutt’s Point spit in the name of “beach nourishment.”  We think this is to be done once a year for five years, though some of those attending the Port’s hearing last week on the same subject, thought they heard it could be done twice a year.
How Much Material?  We have been asked how much material is being dredged.  The permit says ~50 cubic yards from the downstream end of the culvert.  The material is to be placed on top of the spit in a row 100 feet long by 10 feet wide according to a drawing.  The height would be 18 inches, and if done once a year for 5 years would make it 7 and a half feet high, and double that if it is done twice a year.
How Does That Help the Beach?  That is the question we are trying to understand.  The natural movement of beach sediment is to the north in what is called a drift cell.  It is a natural process that probably keeps the Schutt’s Point spit area beach sediment intact.  Does the spit need help?  We haven’t noticed any problems, and other than just wanting to dispose of the sediment onto the beach rather than in a gravel pit, we don’t understand why it is being done.
Littoral Drift.  Littoral drift is what we know this movement of sediment to be, though it has other names.  We have attached the wikipedia link if you want more information. http://en.wikipedia.org/wiki/Longshore_drift
Attendees?  The Illahee Community Club voted at its last meeting to file the informal appeal.  There were several community members at the Port’s informal appeal hearing in Olympia last week.  Illahee residents are welcome to come and express their thoughts. 
Beach Silting Problem.  We have talked with a number of residents who have been concerned for years with the silting that has been going on at the beaches from the storm surges of Illahee Creek, and the damaging affect the silt has on clams and oysters. 
More Beach Silt?  Some of them are concerned that dumping the culvert sediment, which contains more silt is only compounding the problem.  We are hoping some of them will be able to tell the DFW Appeals Coordinator what is happening to the shellfish now because of excessive sediment, not to mention a proposal to add more.
The Ghost Net Guy to Attend.  Dale Thoemke, the ghost net guy, was invited by an Illahee resident to attend.  We are hoping that he, as a diver, will be willing to talk about the damage silting does to shellfish.
Port Orchard Hearing Thursday,1 PM.  The meeting is being held at the DFW offices in Port Orchard, which is much better than having to drive to Olympia.  The time is 1 pm.  The offices are at 502 High Street, Suite 112, in Port Orchard.  The DFW phone number is (360) 874-7258 if you need more information.  Or you can call me, Jim Aho, at 479-1049.
Jim Aho

>Legal Issues Update – 9/28/09


Timbers Edge Decision?  There was NO decision at Monday evening’s County Commissioner’s meeting, much to the disappointment of those in attendance, on both sides. 
Discussion Focused on New Conditions Proposed by Applicant.  Seems Commissioner Brown wanted to make some modifications to two of the Hearing Examiner’s Conditions based on a new proposal by the applicant at the Hearing 4 weeks ago.  He had been working with DCD staff to come up with new language to reflect the applicant’s new infiltration proposal.
Copies Passed Out.  When the discussion began, Commissioner Brown had copies of the modified conditions passed out to the other Commissioners and to those in the audience.  It was difficult to review the new conditions on such short notice since we didn’t have copies of the old conditions, though we think we understand it now.  The explanation of what was happening, was not clear to many of the Illahee residents attending, and it also appeared to take the other Commissioners by surprise.
Attorney Comments.  Following some discussion, the attorney for the applicant (Timbers Edge) and the attorney for the appellant (the Illahee Community Club) were allowed to comment.  Mr. Templeton, the Timbers Edge attorney, basically agreed with the conditions but we felt back-peddled on some items.  We wanted to review his comments this evening, but the meeting was not on BKAT as scheduled, and was therefore not recorded by us.  Mr. Ryan Vancil, attorney for the Illahee Community Club, said the language of the modified conditions was not very clear as to what would be allowed and went on to say that issues like this should go back to the Hearing Examiner, where they can be properly discussed.  He also reminded the Commissioners that this new modification covered only one of the issues of concern to the Illahee Community.  Based on the discussion that followed, it appears Mr. Brown had picked this one issue out as his primary focus of the appeal, and didn’t appear to be concerned about any of the other issues.
Friday Deadline.  The two sides were given until close of business on Friday (10/2/09) to respond in writing to the new conditions that were proposed.
Copy Provided.  We have scanned the handout as an image attachment and will try to get a more readable copy later.
Thursday (10/1/09) Illahee Beach Nourishment Hearing.  The Washington Department of Fish and Wildlife (WDFW) HPA Appeals Coordinator, Lisa Wood, has scheduled the Illahee Community Club’s informal appeal to Thursday, October 1, 2009 at 1:00 pm at the WDFW field office in Port Orchard, which is at 502 High Street, Suite 112.
Letter Attached.  We have attached the letter regarding the hearing.  We also hope to have time to provide the community more information on what is being proposed, but right now our attention is on responding to the curve thrown us at the Commissioners meeting.
Jim Aho

>Culvert Dredging&Beach Nourishment Hearing – 9/17/09


Hearing Held Today (9/17/09).   There was an informal hearing held today by the Washington State Department of Fish and Wildlife (WDFW or DFW) in Olympia regarding the approval of the “Illahee Beach Nourishment” project.  This project proposes to take the ~50 cubic yards of sediment dredged from the Illahee Creek culvert and place in on the Schutt’s point spit yearly for the next 5 years.
Two Groups Expressed Concern.  There were actually two Illahee groups that expressed concern for this “beach nourishment” project:  the Port of Illahee, and the Illahee Community Club.  Both groups requested an informal hearing with the Department of Fish and Wildlife (DFW), but only the Port of Illahee was allowed to present its case.
Illahee Community Club Appeal Request Rejected.  The Illahee Community Club’s appeal request was rejected because DFW said they didn’t receive the letter until September 10, 2009, which was 31 days after the project was announced, and one day past the 30 day requirement. 
USPS Investigation Initiated.  The ICC was concerned about the denial as they sent a certified letter to DFW on 1 September 2009 and for some reason it didn’t get to DFW until 10 days later.  ICC members contacted the US Postal Service who conducted an investigation since certified letters are tracked and not supposed to get lost.
WDF Investigation.  The WDF also conducted an investigation and the ICC was called on Tuesday and told by DFW that it wasn’t they who held up the letter, but rather the US Postal Service who messed up.
Port Informal Hearing Scheduled for Wednesday (9/17/09).  What is interesting is the Port of Illahee sent their letter out via regular mail probably a day after the ICC letter, and it was received by DFW and DFW set up the informal hearing for the Port for September 17, 2009. 
Hearing Was Held for the Port Concerns.  One Port Commissioner and three Port sanctioned residents were given an opportunity to provide oral and written information to the HPA Appeals Coordinator to explain why they believed WDFW was wrong in issuing the Illahee Beach Nourishment Hydraulic Project Approval (or HPA).  During the hearing the Coordinator kept reminding everyone that protection of fish life and habitat are the only issues that can be presented.
Two Hour Hearing.  The hearing lasted two hours.  We think the Port’s concerns were adequately presented.  Regardless of the outcome of the hearing, we think the beach nourishment concept is flawed for more reasons than we can present here. 
Brief Paper Attached.  We have attached the brief paper that was provided to DFW, though we need to state that the oral testimony from the brief was given at the end of the hearing and that some of the questions in the brief had been answered by that time.
US Post Office Call.  The ICC received a call from the Post Office in Olympia, after the hearing, that as we understand it, said the ICC letter had indeed been delivered to DFW before September 10.  We heard that the Olympia Postal Service Office was sending an email to the WDF supervisor and we are waiting to see if the ICC will get their hearing.
Will the ICC Get Their Hearing?  If the ICC letter was received by DFW before September 10, then the ICC should be able to also have an informal appeal hearing on their issues, prsuming they have something new to present.  
Questions? – See Attached Brief.  We hope this email makes sense.  We have attached below the breif that was given to WDF for those who may want to know some of the information that was presented.
Jim Aho
Informal Appeal of HPA by the Port of Illahee re Beach Nourishment Project
Understanding of the Project
1.       Dredging is being proposed by KC Public Works Roads Division.
2.       Dredging is necessary because of the excessive sediment loading of Illahee Creek.
3.       The sediment has been filling the culvert beyond its design capacity since it was built in 1999.
4.       The culvert essentially failed during the Dec 3, 2007 storm and was first dredged in 2008.
5.       Subsequently the culvert filled up again with sediment, though not to the post-storm height, but is getting close to the pre-storm height, and dredging is again being proposed.
6.       Concern of KC Public Works is another major storm could result in the total failure of the culvert.
7.       Public Works Road Division is primarily concerned with removal of the dredged material rather than its placement, and has an approved gravel pit disposal site for the removed material.
Beach Nourishment
1.       Beach nourishment is being proposed by the DFW biologist as a better use of the culvert sediment?
2.       Sediment is to be placed on the inside (land side) of the spit at Schutt’s Point.
3.       The project proposal does not explain how the depositing the sediment from the culvert will nourish or benefit the beach, nor does it describe if it is correcting a beach problem, nor does it explain how it will benefit fish.
4.       The rationale for the beach nourishment phase of the project is not understood by the Port, or the community the Port serves.
Concerns with the Project
1.       The reason for the dredging and the corresponding beach nourishment project is the excessive sediment loading in Illahee Creek.
2.       Excessive sediment loading is primarily the result of unconstrained storm surges within the watershed caused by the lack of stormwater control requirements for roadways and developments in the 60’s & 70’s.
3.       The sediment load has not only affected the fresh water fish and salmonids, but has also affected saltwater marine life.  The sediment loading has resulted in the silting of the nearshore beach areas well out into Port Orchard Bay, such that silting depth at the base of the Port of Illahee dock measured 32 inches in 2008.  This is a massive sedimentation problem and the reason for DOE Surface Water Management Grant being awarded to the Port of Illahee.
4.       Until the sedimentation problems within the Illahee Creek watershed are made part of an overall strategy plan to control the stormwater surges, there will be the continued degradation of freshwater fish and saltwater marine life.
Schutt’s Point
1.        Schutt’s Point is the location of the placement of the dredged material.
2.       Schutt’s Point has an interesting history both old and new that needs to be understood by those requesting change.
3.       The area of the placement is an estuary wetland that supports local and wintering waterfowl.
4.       During extreme high tides local residents have taken kayaks or shallow bottom boats through the area, however not in the recent past.
5.       The area has some restrictions placed on it because of its fragile nature, by a Hearing Examiner in 2004.
6.       Local residents are having a hard time understanding the rationale for either increasing the height of the spit or the filing in of an estuary wetland in the name of “beach nourishment.”  This point needs to be emphasized, and also reflects one of the Port’s concerns.
Flood Plain
1.       The estuary area is also in the flood plain of Illahee Creek.
2.       During the December 3, 2007 storm, Illahee Creek did as most creeks did, went over its banks and flooded.
3.       The effects of the storm were new stream channels that spread throughout the channel migration zone (CMZ) with one of the primary side streams running through the area designated for placement of the dredged material.
4.       Around the time of the first dredging the stream was redirected back to its main channel, both through the actions of the dredging and the placement of berms to restrict side stream flows.
5.       Again, many of the locals don’t understand the human intervention into an area that is supposed to be left in its natural state, including the placement of the dredged material in or near the channel migration zone.
1.       The Port has been advised by DFW that the HPA is ultimately about what is best for fish life or fish habitat, which we presume also includes shellfish.
2.       The Port has been involved with fish incubation projects both alongside the stream and at the Port of Illahee dock.
3.       The Port has also been supportive of fish habitat restoration projects within the watershed and particularly along the lower stream corridor.
4.       One of the key elements of the Illahee Watershed Surface Water Management Plan that was funded by DOE and the Port was a study of fish habitat and fish use of the Creek.
5.       The conclusion of the biologists was the excessive sedimentation was the major problem seriously affecting fish and fish habitat in the stream.
6.       As mentioned earlier, excessive sedimentation has also resulted in excessive silting out into Port Orchard Bay which is detrimental to shellfish.
7.       In other words, the same problem affecting the culvert is also the same problem affecting fish and fish habitat, excessive sedimentation.
Supporting Documentation
1.       Parametrix/Stillwater Sciences/Keta Waters “Illahee Creek Watershed Surface Water Management Plan” dated September 2008.  This report describes not only the watershed problems, but also recommended solutions to the sedimentation problem.
2.       HDR Report “Illahee Creek Stormwater Outfall:  Evaluation of Impacts in Response to Kitsap County Shoreline Questions,” dated May 2, 2008.  This report does an excellent job of documenting  the effects of the December 3, 2007 storm on the estuary area.
1.       The concept of dredging year after year without an overall plan only perpetuates the sedimentation problems and is detrimental to the overall concept of supporting fish.
2.        The concept of beach nourishment has not been substantiated as for need and in fact appears to be using the dredged material to raise the height of the spit or fill in an estuary wetland.
3.       A Comprehensive Plan to control the sedimentation problems of Illahee Creek is needed to protect fish, the Illahee Creek culvert, and the estuary wetland.
4.       The HPA should be denied until it can be included as part of a comprehensive plan to resolve the excessive sedimentation loads in Illahee Creek.

>Appeal Hearing Report, Finally – 9/4/09


Commissioner Hearing 8/24/09.  We are slow in reporting on the Illahee Community Club’s appeal hearing before the County Commissioners that took place the evening of August 24, 2009.  There were approximately 30 Illahee residents in attendance, with some of them wearing the bright orange Illahee tee shirts that were passed out during Illahee Day’s cleanup event.  Below and attached are photos taken at hearing. 

Attorney’s Briefs and Arguments.  We felt booth attorney’s did a good job in presenting their clients cases.  It was interesting that the developer’s attorney highlighted an exhibit that came in after the hearing, while the record was being held open, as the basis for possible new mitigation, which the community felt was a new argument since they never got an opportunity to respond to it.
New Argument Raised at Hearing.  What we and the community found most disturbing at the hearing was that a new argument was allowed to be raised by the developer at a closed record hearing.  Attorney for the developer, Ron Templeton, offered up the new mitigation possibility during his presentation time, and followed it up with an email to the Commissioners the following day. 
Community’s Response to New Argument.  We received a copy of the Community’s response to the new argument, which has in it the mitigation proposal presented by Mr. Templeton.  The Community’s response brief reads as follows:
         At the hearing on the matter noted above on Monday, August 24, 2009, the Applicant Timber’s Edge (“Applicant”) introduced a new argument proposing new mitigation measures for the project.  The purpose of this brief is to provide clarification regarding process for the Applicant’s new argument, and does not address substantive issues addressed at the hearing. 
         At the hearing the Applicant argued that the project should be conditioned by two new mitigation conditions: 
1.                  The Applicant will design and install a stormwater system that will result in no material reductions in base flow of Illahee Creek as a result of site development.  This will be accomplished through the maintenance of groundwater recharge contributions from the project substantially equivalent to pre-development levels.
2.                  In addition, to the extent reasonably feasible without jeopardizing the stability of the slopes abutting Illahee Creek, the Applicant will infiltrate as much groundwater as is reasonably possible.  Thus, if safely and reasonably feasible, the Applicant will infiltrate 100% of the project groundwaters, thereby completely eliminating the need for the stormwater outfall on the Massano Property.
This language was proposed for the first time during oral argument before the Commissioners, and was submitted in writing the day after the hearing via email with the following additional comment from the Applicant’s counsel: “I am attaching the Revised Conditions the Applicant proposes to insure there are no adverse impacts to the Illahee Creek base flows.”
         This argument was raised for the first time on appeal to the Commissioners, and is therefore not part of the record before the Commissioners for review.  Information not in the record is not allowed as part of the Commissioners’ hearing.  KCC 21.04.120 (E). The Board of County Commissioners is limited to hearing the appeal“on the established record.” Id.  The mitigation proposed by the Applicant is not a part of the established record and therefore should not be considered by the Commissioners.
         New arguments raised on appeal are generally not considered at the appellate level.  Boehm v. City of Vancouver, 111 Wn.App. 711, 722, 47 P.3d 137 (2002) citing King County v. Wash. State Boundary Review Bd., 122 Wn.2d 648, 670, 860 P.2d 1024 (1993).  For an issue to be properly raised on appeal, it must have been raised before the Hearing Examiner.  The purpose of this is to avoid “hearing by surprise,” by having new arguments introduced during hearings that the opposing party has not had an opportunity to address or adequately argue.  This is especially to be avoided in a complex case such as this, where any new proposal will undoubtedly impact other aspects of the project and other conditions already established for the project.  
         In addition, past practice by the Commissioners in a case where new mitigation has been proposed by an applicant has been to remand the project back to the Hearing Examiner. As indicated by Commissioner Bauer at the hearing on this matter, a recent case before the Commissioners involving a Montessori school was remanded to the Hearing Examiner to address proposals from the applicant in that case to mitigate some of that project’s impacts. Remanding a question like this to the Hearing Examiner is appropriate, because it allows time for proper analysis of the proposal that is not possible in the forum of a Commissioner appeal.  For instance, in a remand the Hearing Examiner could benefit from expert comments submitted by the appellant and not just unilateral input from the applicant.
         Due to the complexity of this case (over 400 exhibits), and the reasons stated above, if the Commissioners believe that the mitigation identified in the MDNS could be improved to protect Illahee Creek base flows, this matter should be remanded to the Hearing Examiner so that proper mitigation, review, and analysis can occur.

Decision Only on 9/28/09.  We haven’t heard whether a response brief by the developer’s attorney followed the above brief.  (Sometimes it seems the only winners in these situations are the lawyers.)  The Commissioners will vote on the Community’s appeal at the September 28th meeting.
Update on Community Proposal Responses.  The Illahee Community Club hand distributed to most Illahee residents, a letter to the developer and the county that laid out a compromise the community would support.  The letter provided an opportunity for residents to respond as to how they felt about the compromise.  The results so far are nearly all agreeing with the compromise, with one not wanting any development at all.  The ICC wants to remind people to keep responding to the proposal by sending the tear off portion to the ICC address or that they can also do so via email (to this email or info@illaheecommunity.com).
Jim Aho

>BOCC Monday Meeting Reminder – 8/23/09


Reminder: Timbers Edge Appeal Hearing, Mon (8/24/09) evening, County Admin Building, at 7 pm.  The Board of County Commissioners will hear the Illahee Community’s appeal of the Hearing Examiner’s decision to approve the Timbers Edge development.  The hearing is at the beginning of the Commissioner’s meeting so it shouldn’t take too long, especially since the lawyers only get 10 minutes to make their case.
Concerned Citizen Encouraged to Attend.  We have been asked to encourage concerned citizens to attend the hearing and have been told that a good showing of citizens shows the commissioners that residents are supportive of community efforts.  Those who helped with the Illahee Day cleanup are urged to wear the Illahee shirts that were given out by the Port of Illahee.
Illahee Community Letter.  We have been told that 1500 Illahee Community Letters have been hand delivered to residents regarding the Timbers Edge project.  Responses have been coming in via postal mail, email, and phone.  So far the responses have all been in agreement with the “Illahee Community Proposal re Timbers Edge,” with some providing checks to support the legal fund.  Some volunteers may not have distributed their letters, so if you don’t get a copy by the middle of the week, let us know.
Illahee Community Meeting on Saturday.  There was a good community meeting held Saturday at the Sylvan Way library.  We will wait for the Illahee Community Club’s report to come out before reporting on the meeting.
Deer Vegetation Pictures.  We have some recent photos that show some of the things deer like to eat.  So far we have photos of the decimated tomatoes, raspberries, and kiwi that we will try to get into small files so we can attach them in a later Update.  If you have some deer grazing photos we will include them.
See You Monday Evening (8/24/09) at the County Admin Building.
Jim Aho

>More Important Info – 8/20/09


County Staff Recommends Approval of Private Dock.  We have been asked to advise residents that Kitsap County has recommended approval of a private dock in the University Point area.  This is in the area of the northern boundary of the Illahee Community.  Evidently there was only one person who was concerned about the project according to the staff report.  We were told this is likely the situation because very few in the community are aware that a private dock application was submitted.  We were forwarded a copy of the staff report that recommends the dock be approved and have provided the following link to the report: http://www.kitsapgov.com/dcd/lu_env/he/reports/he-sr-08-62589.pdf
Dock Hearing is Thursday 8/27/09.  The hearing date is Thursday 8/27/09 at 10 am in case anyone is interested in attending.  The agenda is on the county website and we have attached the link to it below for your convenience.
Community Comments?  We have only received one email regarding the dock.
I’m having a hard time believing that I am hearing a private dock is being proposed for the University Point area.  I try to walk the beach area from Gilberton Creek south and can’t imagine a private dock in that area.  I thought the surrounding bluffs were “feeder” bluffs and that the county was considering shorelines as areas that needed some kind of protection.  I’m having a hard time comprehending what I am hearing and am hoping you can provide more information in your updates. 
PS  I’m also personally concerned about how I am to walk around this new dock.  My walks are already impeded by bulkheads that protrude out into the shoreline.
PS  I hope I’m not the only one concerned about this.  This seems like a really dumb idea, and has anyone thought of the winter storms during high tides, and the debris that is in the water.  Please pass my name and concerns on to anyone else you come across who is concerned.
Illahee Community Letter Attached.  The Illahee Community Letter concerning the Timbers Edge Development that is being hand distributed to residents is attached as two files.  (Some residents would like to see the letter sooner rather than later, or are concerned that those delivering the letters, might miss their property.) The distributed letter is printed on both sides of legal paper, but was provided to us as two separate files.   Side 1 / Side 2
Your Response is Needed!  The Illahee Community Club wants to hear from as many Illahee residents as possible regarding their agreement or disagreement with the Community’s “Proposal” to the developer and the county, and would like to let people respond by email if they want to save the cost of a stamp.  You can respond to info@illaheecommunity.com or to this update.  Two phone numbers are provided in the letter for those who have further questions.
Reminder (1):  Illahee Community Meeting, Sat (8/22/09), Library at 1:30 pm
Reminder (2):  Timbers Edge Appeal Hearing, Mon (8/24/09) evening, County Admin Building, at 7 pm
Jim Aho


Some Important Illahee Information. The community of Illahee continues to be engaged in a disagreement over the Timbers Edge project. There are a number of issues that are reported to have Illahee citizens concerned, the two primary ones seem to be the negative impact on Illahee Creek and the aquifers, and the fact that most of the lots are very small, approximately 3400 square feet. There are other issues, but these seem to be the two big ones.

Notice of Public Hearing Attached. We received a “Notice of Public Hearing” in the mail on Saturday and today Ryan Vancil, forwarded a pdf file of the notice so we have attached it for those who did not receive copies. As you can see from the notice, the hearing is on Monday evening, on August 24, 2009.

Only 10 Minutes Allowed To Present Arguments. In case you are thinking the Hearing could be long, the community is only given 10 minutes to state their case, which is followed by 10 minutes for the developer. The community has hired a lawyer to do the presentation.

Community Legal Representation. The community early on decided to be represented by legal counsel, first hiring Claudia Newman of the Seattle law firm of Brinklin, Newman, and Dold, and later they hired a more local lawyer, Ryan Vancil, to represent the communities interests.

Contributions Needed. The Illahee Community Club (ICC) has asked that we remind residents that legal representation is costly and that a legal fund has been established to receive contributions. Contributions can be sent to the ICC, Box 2563, Bremerton, WA 98310.

Decision Later? Following the arguments, the Commissioners will likely wait until a later meeting to decide on the appeal, so there probably won’t be a decision that evening.

Illahee Proposal Prepared. During the last few months an ad hoc committee and the Illahee Community Club board of directors have been working on a suggested draft proposal for the Timbers Edge project that the community could live with. The proposal took some time to develop since they were working on obtaining unanimous agreement by approximately twenty committee and board members. It represents a serious attempt by the community to see if a mediation type of agreement can be reached that benefits both parties and would possibly avoid continued litigation.

The Illahee Proposal. We have attached the draft proposal we received and have also presented it below. As we understand it, there will either be a meeting to approve it or it will be sent out or distributed for a mail-in vote. We will pass on what we know as it becomes available.

Jim Aho


The Illahee Community has been working diligently to restore and preserve the Illahee area of Puget Sound, including Illahee Creek, its aquifers, baseflows, wetlands, floodplains, and estuaries; and is greatly concerned about the currently proposed Timbers Edge project and its impact on these areas.

The citizens of the community have had to live with the results of past county approved projects that have been detrimental to the health of the Illahee area, Illahee Creek and Puget Sound. Engineering studies funded by the Washington State Department of Ecology and the Port of Illahee have documented significant problems from these approved and authorized developments in the Illahee Creek watershed, and have concluded that major restoration work must be done to correct the problems. The estimated cost to correct the past failures on Illahee Creek alone is $20 million, which does not include the aquifer recharge issues of Timbers Edge that could result in the death of Illahee Creek as a salmon stream.

The Illahee Community has been successful in the past with litigation regarding stormwater (Rue Villa) and to defeat detrimental projects (fish pens) or mitigate the impacts (Illahee outfall project), the last two being county approved projects (by the Hearing Examiner and the Board of County Commissioners). The community has demonstrated they will stand up and fight for and defend positions they believe in.

With Timbers Edge there are varying concerns. For adjoining property owners there are concerns for the health and safety for children with regard to traffic. For those in Rue Villa and downstream of the project, it is the threat of more uncontrolled stormwater. For others it is the impact on Illahee Creek, the underlying aquifers, the estuary and floodplains. The possible death of Illahee Creek as a salmon bearing stream is unacceptable to the community, and the fact that an EIS or Environmental Impact Statement was not required by Kitsap County is both irresponsible and intolerable. The lack of concern for the creek sends a message that in Kitsap County salmon streams take second place to development.

The citizens of Illahee are not opposed to land development. They would like to work with the developer and the county to insure the Timbers Edge project fits the community, controls the stormwater, and preserves the stream and the natural features of the area.

The Illahee proposal is that the Timbers Edge development project be reconfigured to conform to the current existing zoning for the area. This zoning density, along with low impact design applications, will help insure the protection of Illahee Creek. By itself, the reduced density will by itself improve the traffic safety concerns for the children within this area.

The elimination of major infrastructure costs should be a financial incentive. The proposed sewer system would be replaced by septics. The septic systems will help increase groundwater infiltration, which in turn supports aquifer recharge and the baseflows in Illahee Creek. With maximum infiltration of stormwater through infiltration pits, bioswales, and rain gardens, etc., stormwater overflows do not need to be treated which eliminates the requirement for a stormwater basic treatment facility and piping to Puget Sound. Eliminated also are the following: the required road improvements on Perry Avenue, possible Fir Drive improvements, the anticipated cost of running the sewer line under Illahee Creek, a new sewer pump station, and the cost of repairing Illahee Road for the sewer line installation.

The secondary benefit of the Illahee proposal is a safe and environmentally enhanced development that is supported by the Illahee Community and the Illahee Community Club.