Three Strikes And They're Not Out ...

As commenters have noted, the county was sued today (again). This time the issue is misuse of government funds ... permit fees specifically. In short, the suit alleges that the County has violated state law by misusing the monies collected for building permits by using them to subsidize general government. For example, building permit fees have been used to pay part of Sam Gibboney's salary even though she has not been directly involved in reviewing or approving building plans. The suit alleges that the misuse and diversion of funds has amounted to as much as $1.2 million over the past three years (statute of limitations).

Reportedly, this same general issue has been brought up repeatedly by the Building Advisory Council to no avail. It also was the impetus for the recent whistleblower claim by Building Official John Geniuch.

CD&P seems to be generating a lot of lawsuits for the County these days. In addition to this lawsuit, there is the OPMA lawsuit and the Friends/CSA lawsuit regarding the CAO ... all related in one way or another to alleged CD&P mismanagement, overreach, and bungling (and not counting ongoing as-applied lawsuits related to specific parcels/permits).

Three current lawsuits ... and counting ...

Who's in Charge Anyway?

As County watchers may know, Sam Gibboney has the title of Director of Community Development & Planning (CD&P). She took over when Rene Beliveau retired. Gibboney, in turn, hired Linda Kuller to serve as Director of Long Range Planning. Kuller replaced Shireene Hale, who was shown the door after she spearheaded passage of the litigious CAOs.

Among other things, Hale was ignominious for feigning fear of ordinary public meetings. In one email to our County Council prior to a public meeting, Hale accused both a former Planning Commissioner and a former County Commissioner of "intimidation" and of "stirring up fear, hatred, and hostility," and she added, "the possibility of violence should not be dismissed." Distraught with imaginary fear, Hale subsequently insisted that the now-defunct-sheriff Rob Nou stand guard over a public meeting involving her and the Council, without providing any prior notice to the Council itself.

But back to Kuller ... Kuller came to us from Snohomish County. Before that, she was with Skagit County. Before that, she worked as a planner in Georgia. Note that we have other imported planners from Georgia also -- Colin Maycock came from there. We've gotten planners from Idaho too (Hale). Colorado (Biletnikoff). San Juan County must be heaven for planners because we attract them from all over. When in Snohomish County, Kuller "Wrote official code interpretations, rules, policies procedures, and press releases. Informed or managed special planning and policy projects such as comprehensive plan updates and seven year review, the NMFS/FEMA biological opinion, flood hazard area conditional letter of map revision, Endangered Species Act biological assessment, and planning grants."

Grants ... of course ... grants had to be in there somewhere. Don't forget that Kuller used to be Linda Lyshall's housemate (Linda Lyshall of Conservation District fame). Lyshall was recently in the news because, barely had the thawing of relations with Cuba been announced, than Lyshall and the Conservation District were inviting Cuban communists to our islands to talk about Foundations for a Sustainable Future. Remember that our County Council voted to support the Conservation District with our tax dollars, so those aren't just any Cuban communists advising us on how to live, those are tax-sponsored Cuban communists advising us on how to live.

On to Gibboney ... she (yes, "Sam" is a "she") transferred over from San Juan County Public Works, but before that, she lived and worked in Jefferson County. Gibboney has a degree in engineering, but she is not state licensed. In addition, she has no background or work experience in planning that would suggest qualifications to head Community Development & Planning. However, she is politically connected. While in Jefferson County, Gibboney was campaign manager for Steve Tharinger. Steve Tharinger is a Democratic member of the Washington State House of Representatives.

A photo of Sam Gibboney in an email message to Teamsters,
thanking them for their incredible support of Steve Tharinger

Press reports and records from Jefferson County describe Gibboney as an "environmental activist" who received "$500,000 in grant funding to the Watershed Stewardship and Research Center." The WSRC conducted "comprehensive site and ecosystem evaluations." In addition to doing work for the WSRC, Gibboney was the "Greater Seattle - Olympic Peninsula Conservation Director at Cascade Land Conservancy and President/Owner of ISE Consultants (environmental services). Gibboney's firm, ISE Consultants, was "hired by the State Department of Ecology to assist with the public process for adopting an instream flow and water management rule for the Dungeness Basin" in Jefferson County.

Sam Gibboney -- Ecology Consultant

That's right. We have a politically-connected environmental activist and former Ecology consultant as our CD&P Director. But wait ... there's more. While in Jefferson County, Gibboney also was President of the Port Townsend Food Coop when a dispute arose regarding a possible boycott of products from Israel. Gibboney came under fire from Coop membership for holding secret meetings to resolve the dispute.

Dena Shunra, one of the member-owners, said, “I’m troubled that board members of our own food co-op would hold closed meetings on a subject that has aroused so much interest within our community. We need to shed more light on this issue rather than open our co-op up to allegations of back-room deals.”

So ... correction ... we have a politically-connected environmental activist and former Ecology consultant as our CD&P Director who has a history of alleged secret meetings. Moreover, it doesn't look like Gibboney made a clean break with her private consulting work before joining San Juan County either. Based on at least one email, it looks like Gibboney used her San Juan County public email to finish up closeout work for WSRC and her company, ISE.

So ... correction ... we have a politically connected environmental activist and former Ecology consultant with a history of alleged secret meetings who used her public email for private business. But wait ... there's more. In 2014, Sam Gibboney issued a $5,000 contract to former County Councilwoman Lovel Pratt, ostensibly related to oil spill preparedness -- never mind that Pratt has no serious background in such matters. Gibboney was forced to cancel the contract after its existence came to light. The contract came about because Gibboney spends a considerable amount of her time devoted to marine resources activities, not planning activities as you might expect. In addition to CD&P, Gibboney is simultaneously head of the Executive Committee of the Marine Resources Committee. It was via this connection that Gibboney slipped Pratt her contract, misusing her spending authority as CD&P Director to quietly award it on a no-bid basis. Aside from bogus contracts, what do we get from Gibboney in her MRC role? The minutes of Council meetings tell us:

Ms. Gibboney presented the Natural Resources Department Update, explaining the interrelation among the MRC (Marine Resources Committee), LIO (Local Integrating Organization) and LEAG (Lead Entity Advisory Group) and answered Council’s questions.

She liaises, coordinates, and interrelates with the usual alphabet soup of time-wasting, grant-sucking bureaucrats.

Nothing is different in CD&P, and arguably, they've gotten worse under this Council and County Manager, Mike Thomas. A few months ago, our Public Works Director, Frank Mulcahy, departed for greener shores. Mulcahy reportedly despised Mike Thomas. Mulcahy was a 20-year Navy veteran who had served in Iraq. He'd seen some pretty bad situations, but San Juan County was too much for him. Mulcahy even contemplated taking a job in Guantanamo Bay to get away from here.

When planners and Cuban communists are coming to San Juan County, and 20-year military vets are thinking about going the other way ... you know things are worse than ever in San Juan County.

But just wait ... there will be more ...

Broken Dreams - First In A Series

As anyone who has watched County events over the past few years would know, our local government is in the business of crushing dreams, not making them come true. If you've watched with anger and disappointment as our elected Council heaps abusive laws on us, you might have come to the conclusion that we should just let the Department of Ecology appoint our Councilmen so we can at least save money on elections. It couldn't be any worse. The abusive laws allow the Friends of the San Juans to harass us. The process has become the punishment. Tonight we start the first of a series telling the stories of islanders.

The Lopez Islander Resort

“Friends” and Neighbors in the San Juans

The ability to run a small lodging business in San Juan County is at risk as long as the “Friends” (of the San Juans) are your neighbors. They may say that they support tourism and small business but that is disingenuous and here’s why.

The Lopez Islander Resort has been a landmark in Fisherman’s Bay for almost 70 years. It was first established in 1945 when Nan and Otto Perkins moved to Lopez Island after the war. On a cold stormy night a few years later the resort burned to the ground. Neighbors held a party at Woodman Hall where they donated enough money to help rebuild the restaurant and a few guest rooms. That was back in the days when “friends” meant something entirely different than it does today.

In the following years the resort went through a series of owners. Mr. Wally Trace purchased the property in 1992 as Lopez Islander Inc. and immediately applied for and received approval of a Shoreline Conditional Use Permit for further expansion of the resort and marina. At that time none of the neighbors opposed the project. However, the resort went bankrupt after completing their improvements. It’s not easy to run a business like this in San Juan County, even with community support.

In 1997 Diller Associates purchased the resort. The place was a bit run down and had been for sale for about 3 years. Bill Diller made it very clear from the beginning that he would be “sprucing up” the resort. He had been a frequent visitor to the islands and was excited about the possibility of owning a small business that served his community and employed more than 25 local islanders during tourist season.

After fixing up the resort and getting it back into business, the Dillers saw the potential to do more with their investment. In 2010, Diller Associates applied for a permit to expand the marina to accommodate an additional 50 moorage slips. They ran into some roadblocks because of a small patch of eelgrass. At this point they didn’t feel like fighting for the permit, but two years later they needed to grow their business.

There were campsites on the property for families on a budget and the owners saw the need to add a few more as well as several RV campsites. They wanted to tear down and replace some of the older cabins and add a new building with 7 guest rooms, which was allowed outright under the zoning code. They also applied for a shoreline permit to build a small structure for a kayak rental business. They didn’t expect a fight over this modest expansion but they got one from the “Friends” of the San Juans.

The “Friends” were called into action by a small group of neighbors who for whatever reason wanted the project stopped[1]. The neighbors solicited by email, “tax deductible contributions to the Friends of the San Juans ... that will be applied directly to fund Laura’s work.” [2] (Former Planning Director Laura Arnold).

The “Friends” stepped in with their team of litigators and organized against the Dillers, even though the project was perfectly legal under the County’s land use codes.[3] This is an example of the “Friends” tactic of turning neighbor against neighbor. All of the surrounding neighbors purchased property next to an existing resort. Why would they all of a sudden object to the resort?

The Friends hired Laura Arnold to help them fight the project. In an email message Ms. Arnold said,

“It appears to me that the County Code anticipates this type and intensity of use in this land-use district and would, I expect, find it difficult to deny the proposal . . .”[4]

The Dillers held a public meeting in August 2012 to listen and respond to the concerns of their neighbors. They made concessions and changed the site plan in an effort to mitigate concerns.

This did not deter this group of activists and attorneys from going ahead and appealing the permit and arguing before the Hearing Examiner. It was a “change of use” they declared and therefore subject to mitigation. The Dillers persevered, and the “Friends” succeeded in adding substantial costs to the small business.

This time the Diller’s were determined to fight their way through the process. After hiring engineers and consultants to do all types of studies demanded by the “Friends,” and hiring land use experts and attorneys, they had invested more than six figures to get a permit that without the intervention of the “Friends” would have been routinely approved.

While this battle was being fought the “Friends” published a county-wide mailer entitled, “Shorelines: Where We Live, Work, & Play.” In it they say,

"Protecting our shorelines is good for our economy and our environment. Our visitors contributed over $158.5 million to our local economy last year,” said Stephanie Buffum, Executive Director of “FRIENDS” of the San Juans.

If the “Friends” acknowledge the importance of tourism to our local economy then why did they take up a fight to cripple a small scale lodging business by challenging permits for a modest expansion? The local lodging industry is the basic driving force for low impact island tourism and contributes millions each year to the community through lodging taxes. It is a fact that small-scale island resorts benefit the local economy in many ways, not the least of which is attracting customers who spend money and support other island businesses. The evidence suggests that the “Friends” don’t really want people to “Live, Work, & Play” anywhere near the shoreline.

The ability to run a small business is at risk as long as the “Friends” are your neighbors. For a business investor, risking capital to hire attorneys and other professionals to face endless challenges by the “Friends” for a simple permit reduces potential profitability and discourages investment. Who is it that makes a community thrive? Is it people who invest in it and work hard or the people who organize neighbor against neighbor to restrict the very things that create economic vitality? Perhaps the “Friends” need to find the answer to that question before they focus their special interest litigation machine against other island neighbors.
____________________________________________________________
[1] Email from Mr. Rick Strachan, 5/20/13, “It may well be true that this application will be decided on strict issues enumerated in the application, but it seems that all our concerns stem from Mr. Diller himself, not from the proposal itself.” 
[2] Email 5/11/13 from Peter Cavanagh to neighbors. 
[3] A hotel/motel is allowed outright in the Village Commercial Zone.  Campgrounds (RV and tent camping) require a conditional use permit approval. This information is found in Table 3.1 of the Unified Development Code. 
[4] Email 5/11/13 from Peter Cavanagh to neighbors.

Uncertainty In the Department of Stone-Age Ecology

About a month ago, Hiroo Onoda died at the age of 91. He was a Japanese WW II holdout soldier who didn't surrender until long after the war was over. For 29 years, he lived on an island in the Philippines with other holdouts, dismissing all evidence (including messages sent to them) that the war was over. They lived by eating what they could find in the jungle or steal from local Filipino farmers. After losing all his fellow holdouts to various circumstances, Onoda was finally persuaded to give up in 1974.

Also, we occasionally still hear press reports about Stone-Age tribes that hold out against the modern world ... in the Amazon ... Papua New Guinea ... or some remote island. In these days of iPads, space stations, and genetic engineering, some of these Stone-Age tribes don't even know how to make fire ... and have never heard of the wheel.

Which brings us to the Shorelands and Environmental Assistance Program within the Department of Ecology. These are the regulators who advise local governments about shorelines and wetlands because of the Shoreline Management Act (SMA) and the Growth Management Act (GMA). In reality, the responsibilities of Ecology are very different under these two Acts, but they don't want you to know that. Under the SMA, Ecology is directly authorized to oversee, and take charge if necessary, of land use planning for shoreline zones. Under the GMA, they have no authority. No one says this better than Gordon White, the Head of the Shorelands and Environmental Assistance Program:

"We don’t have regulatory authority in local critical areas ordinance issues. We don’t make rulings or issue enforcement actions under local critical areas ordinances. Those tasks are on local government turf" (Gordon White, Eco-Connect Blog, February 14, 2012.)

Let's be clear about this. Under the SMA, Ecology is authorized to carry out the limited objectives of the SMA only, which is a planning law, not an environmental protection law per se. Under the GMA, Ecology is not authorized for anything, except to advise the Department of Commerce about Critical Areas. That bears repeating ... they are authorized to advise the Department of Commerce (not local Counties) about critical areas (not about the 14 goals or any other aspect of the GMA). Ecology would like you to believe that they are in charge of habitat and endangered species and wetland delineation and saving the planet and the whole GMA. They would like you to believe they are authorized to mainline their biased GMA advice directly into the veins of buffer-addicts in every County Planning Departments ... but they are not.

Altogether different from the SMA and GMA, Ecology is separately authorized under the Clean Water Act (CWA) to regulate discharges to waters of the State/US, but their authority under the CWA is about discharges. They regulate pollution, not non-pollution. They regulate effluent, not waters. Nowhere, outside of the specific planning purposes of the SMA, is Ecology given authority to identify or delineate streams, wetlands, shorelines, or any other waters of the State/US. They have proclaimed themselves as the expert authorities in this area, but they are not.

This brings us back to our Stone-Age lead-in. The Ecology folks who aren't authorized for much of anything produce Best Available Science (BAS) about everything. However, like the Stone-Age tribes who haven't heard of the wheel, the Cro-Magnons at the Shorelands and Environmental Assistance Program seem to be entirely ignorant of concepts accepted everywhere else in environmental science. As we repeatedly mention, they know nothing about risk assessment, but they also know nothing about environmental chemistry ... or geology ... or habitat ... or hydrology ... or physics ... or bio-statistics ... system dynamics ... or science generally. They say revealingly stupid things like (from the Hruby report), "The recent research has also increased our understanding of the many different factors that control the effectiveness of a buffer at trapping pollutants" such as type of pollutant, concentration of pollutant etc.

Increased "our" understanding? How could you not know this? This is in every elementary textbook (and there are thousands) dealing with risk assessment, fate and transport, and environmental chemistry. These principles are at work daily in Ecology's own Toxics Program. This is like a Stone-Age tribesman in the 21st century saying that "we" just discovered fire, and then bombastically posturing as if they are on the cutting edge of discovery. Somehow, and I don't know how, the Shorelands and Environmental Assistance Program has been able to survive like a lost Stone-Age tribe, surrounded by modern technology, but unaware of it. Along with them are fellow holdouts comprised of planners, consultants, attorneys, and non-profits who profit from believing the earth is flat.

We have to contend with their ignorance and bias in maddening ways, one of which was mentioned by some commenters to the previous post ... namely scientific uncertainty and the application of the precautionary principle. One of the ways Ecology projects their power and Stone-Age ignorance is by practicing data sophistry. For instance, we actually have quite a bit of data in these islands that show that we have no problem. Cleverly, though, that gets twisted by Ecology and the County into an opportunity to apply the precautionary principle. Let's discuss an example for the sake of illustration. If I were to sample a stream for pollutants, and if the results were to come back as non-detects, that is positive evidence of no problem. We have lots of data like that here in the islands ... after taking into account data quality, we have positive evidence of no problem. The evidence for "no problem" is in the form of zeros (non-detects) but that's not "no data" and it isn't "uncertainty." It's just that we found nothing because nothing is there.

Finding positive evidence of nothing, however, gets transmogrified into "we have no data" or "we don't know" or "it's pristine" or "the results are inconclusive" or "we're uncertain" ... and before you know it, the precautionary principle gets invoked, and we get 300-foot buffers in rural areas and 50-foot buffers in urban ones. That's how that happens. The absence of a problem and lots of "zero data" gets manufactured into uncertainty requiring the greatest amount of precaution and the toughest land use restrictions. The cleanest areas get "protected" in the most severe way when any rational analysis would have deployed greater "protection" for the riskier exposure scenario. We have to put a stop to that BAS ackwards outcome by pointing out what the data are really saying.

A Buried Report

The Growth Management Hearings Board (GMHB) ruled on our proposed CAOs on September 6, 2013. In October, the Department of Ecology came out with a new Best Available Science (BAS) document titled, Update on Wetland Buffers: The State of the Science, Final Report. It was authored by none other than Tom Hruby, the go-to wetlands science guru at the Department of Ecology.

This 2013 document updates Ecology's 2005 guidance on wetland buffers in some substantial ways. Over the next few postings, we will delve into the new document, but for now, suffice to say that while the new document still has some significant problems, it makes some surprising admissions too. In answer to the question of how large buffers should be, the new 47-page document essentially says, "It depends."

Yes ... it depends on a myriad of site-specific factors ... so it is impossible to prescribe fixed buffer widths ahead of time. Wow!

County staff have known about this report since it was issued. This fact came to light during CAO public comment last week. CD&P knew about it. County Manager Mike Thomas knew about it. Nevertheless, all during the effort to "fix" the latest version of the CAOs after the GMHB ruling, those who have been "in the know" did not inform the Planning Commission about the new document. Those "in the know" did not inform the Council about it either. Interestingly, even Ecology's official correspondence with the County doesn't mention their own new science document.

Among other things, the 2013 Final Report talks about the Meyer paper, and it talks about the Zhang paper. When deliberating about potential revisions to the CAOs back in November, Planning Commissioner Brian Erhmantraut tried to get the Planning Commission to consider buffers based on the Zhang paper, but the other Commissioners shot down the idea because (they thought) the Zhang paper wasn't supported by Ecology BAS. So, the Planning Commission and CD&P pressed forward in making revisions to the CAO based on 2005 BAS, not 2013 BAS. That's where we are at the moment. We have CAO revisions based on outdated BAS.

The 2013 BAS document is very inconvenient to anyone who just wants to get 'er done because it raises serious questions about the basic validity of Ecology's historical approach to buffers ... and our County's approach as well. The new BAS document is not perfect by any means, but at least it is nudging closer to the truth. Considering it was issued by the Kremlin of buffer science, it makes some astonishing admissions.

But "they" buried it so no one would be the wiser.

New BAS report issued after the San Juan County GMHB ruling and at about the same time as the SCOTUS Koontz decision.