Save a Forest in Southworth, WA

How the Appellants Prevailed

Technically, the appellants "won" the appeal, as it was granted (sustained) even in a small part. As the Examiner noted, "It is no surprise... that due to Mr. Clemmensen's meticulous appeal he has revealed some modest grounds for improvement." But only 2 of the appellants' 13 requests for relief were granted. The following aspects of the appeal resulted in positive gains:

• More adverse environmental impacts were recognized. While County reviewer Steve Heacock had originally determined and later testified that light glare was the only impact of the deforestation, the Examiner found that the appellants proved a much wider array of adverse impacts in need of mitigation, including wind, heat, noise, tree dieback, noxious weeds, and deer damage to trees. These are not an insignificant quantity of impacts, and the County and Edwards did little to try to contest them despite refusing to admit to them.
  
  "[The] impacts caused by the Edwards' tree removal [are] largely uncontested... In large part it can be concluded that there's no disagreement on the extent of impacts," Olbrechts stated. "The unique circumstances of the location of the Edwards' property exacerbates the impacts of tree cutting to the level of an incompatible commercial or industrial development." To this end, the deforestation was finally recognized as more damaging than typically anticipated by the County's reviewers, the core argument of the community for years.
• The developers' tiny, pre-emptive buffers are not adequate. The Edwards pre-emptively planted 1 to 3-foot tall boundary buffers in limited areas without waiting to learn about installation standards, later claiming that they were not all required anyway. The County had written a condition on the original permit that these plantings were "adequate" and "sufficient" despite violating County installation standards. The County's Steve Heacock walked back that condition, blaming another reviewer, Jeff Smith, for it even though Smith indicated he was also not the source of that condition. The finger-pointing was embarrassing.
  
  The Examiner thus removed the condition, but Heacock is still tasked with determining the adequacy of required buffering. The community anticipates that he will not force the developers to buffer as required to mitigate the impacts, which will result in compliance complaints and possible legal action in the future since Heacock has a reputation in the community for not enforcing standards. The appellants will hold this development to account for impacts in the long term.
• Slightly expanded buffering is required. The Examiner stated that the impacts proven by the appellants can be mitigated by 25-foot buffers along the full boundaries with the appellants, though the trees and shrubs that will make up that buffer are less well-defined than before. Regardless, they must be made solid enough to block headlight impacts from any direction, which the Examiner deemed will also be sufficient to block the wind and other impacts. Most of these buffers were already required by the original SEPA determination, though.
• Buffering/landscaping plans and standards must be followed. The County had quietly removed the requirements for a landscaping plan in the final approval. Heacock backtracked on this point as well during testimony, suggesting that the developers must adhere to hedgerow buffer standards adopted by the USDA Natural Resources Conservation Service rather than the County's own buffer codes. Whether the USDA or Kitsap buffering standards apply, both require planting plans to be created, and County installation standards must be followed.
• The buffers are to be protected by covenant. The developers fought this requirement because they argued that it would reduce their property value. That didn't matter to anyone else, including the Examiner, who agreed with the appellants that buffers on a residential property are not to be expected normally by a new buyer, and the conditions of this deforested parcel are unique enough to merit the buffers being recorded against its title.

How County Negligence Prevailed

Despite the minor victories above, the overall outcome of the Examiner's decision is a disturbing reinforcement of the County's poor permit reviews and ignores a fair number of pertinent issues for which relief was requested. The following aspects of the appeal resulted in no constructive outcome:

• Only the SEPA appeal was ruled upon. The appellants appealed both the SEPA (environmental) and administrative (SDAP) decisions on this deforestation. Throughout the hearing and his decision, Olbrechts repeatedly referred to this appeal as pertaining to only SEPA even though the appellants paid for an administrative appeal and provided arguments and testimony about aspects of the decision and conditioning not related to SEPA. This is a major oversight by the Examiner.
  
  Because of the Examiner's inexplicably narrow perspective, the County is not held responsible for the admitted mistakes in its administrative process that may have cascaded into the environmental review and other areas of concern. "Those deficiency issues are irrelevant to the final adequacy of review and mitigation," Olbrechts stated. This lack of thorough ruling means that several of the relief requests from the appellants are simply ignored in the decision, including one regarding a County condition pertaining to the future execution of an easement by the developers.
• The Examiner ignored overwhelming evidence against Steve Heacock. While the reviewer's opinion is afforded significant weight in SEPA appeals by law, it does not allow for that reviewer to repeatedly humiliate himself in erroneous testimony and retain his credibility. The appellants provided extraordinary summaries of Heacock's misstatements in both his review and in testimony, but the Examiner ignored all of that evidence. He went so far as to praise Heacock instead, all but eliminating the Examiner's own credibility as a result.
  
  Even though Heacock admitted his lack of investigation into the impacts eventually ruled adverse by the Examiner, the latter stated: "Mr. Heacock, the County's SEPA Responsible Official, made a searching, well-informed and realistic analysis of the Edwards' development impact... in the end there's no question that Mr. Heacock had considered every material impact of the proposal." The County actually put forth no defense whatsoever, leaving Heacock's shockingly inaccurate testimony as the basis for the Examiner's praise. This is how Kitsap DCD employees can casually harm communities without consequences.
• No consideration was given to the original forest violation. The Examiner completely sidestepped the fact that the proven impacts have already been occurring for over six years and thus required more aggressive mitigation. The solutions proposed by the County may take many more years to provide protection, whereas no such re-planting of buffers may have been necessary if the developers had not broken the law in the first place.
• No state deforestation permit is to be required. The appellants testified that the Washington State Department of Natural Resources told them directly that a Class IV-General permit for the scope of this deforestation would be required in 2019. The County failed to enforce it. The Examiner bought an erroneous argument from the County about the Edwards' parcel not qualifying as "forestlands" and therefore not requiring any forest conversion permit whatsoever. The County introduced this position after the closing briefs, and the Examiner refused to allow the appellants' responding evidence that the parcel was indeed classified as "forestlands" by the DNR itself just prior to this action.
• SEPA does not protect all neighbors even if impacts are equal. Among the Examiner's more disturbing assertions is his agreement with Heacock that adverse SEPA impacts only qualify for mitigation if a direct neighbor complains or, in this case, signs on to the appeal. That defies the very foundational purpose of SEPA, which seeks to protect all people and the environment. Even though the tree dieback caused by the deforestation affects parcels in between those owned by neighboring appellants, no protections for those quietly suffering non-appellants was allowed. The Examiner went so far as to suggest that the appellants are not affected by the adverse impacts upon large trees on immediately adjacent parcels (including death), which is shockingly obtuse.
• No protections from farm use are included in the decision. Although the Examiner cited agricultural buffering standards to protect select neighbors, the mitigations do not include those for a barn or livestock despite the developers' submitted farm plan showing such contemplations. This is because, as the Examiner noted, "The Edwards have no specific farming practices in mind." This lack of pre-emptive mitigation will force more compliance action against the developers in the future when they add livestock and/or a barn.
• The Kitsap Comprehensive Plan supports only the County, not appellants. In its SEPA determination and in correspondence with the developers, Heacock cited the Land Use Policies of the County's Comprehensive Plan to help justify his required mitigating conditions. When the appellants sought to apply the Plan to support their arguments, however, the Examiner ignored them. Nowhere in the final decision are the Land Use Policies even addressed.
• The requirement of revised site plans remains a mystery. In testimony, the County suggested that revised plans to account for the required buffers would be necessary, but the Examiner stopped short of explicitly enforcing that requirement. Instead, he allowed the developers to under-report their cleared area in 2019, and he inexplicably misapplied the demands of the Kitsap County Stormwater Design Manual to the developers' parcel, allowing their engineer to complacently omit a significant portion of impervious surfaces and previously violated areas, some of which the developers intend to stump and thus convert once a stop-work order is lifted.
• Compounding connections between the impacts are ignored. Despite showing significant connections between the proven wind impacts and blowing dust from the developers' parcel, the Examiner failed to make the connection, neglecting to cite dust as a consideration despite the wind acting as its catalyst. Furthermore, the Examiner also completely neglected to address the most focused area of wind impacts at the current northwest entrance to the deforested parcel, leaving that area for future code compliance complaints and possible litigation. Mitigating this area was one specific request for relief the Examiner ignored.

Lessons Learned

Other individuals and groups contesting Kitsap County's substandard reviews of environmentally damaging proposals and developer violations can learn from this appeal in Southworth. The lessons below are the most obvious takeaways from the County's mishandling of the situation and the Hearing Examiner's refusal to hold the County to its own laws and those of the state:

• SEPA reviewers are not held accountable by Hearing Examiners. In his decision, Olbrechts is essentially admitting that SEPA appeals are a no-win proposition for aggrieved communities. According to legal counsel, Olbrechts has repeatedly misread the Moss v. City of Bellingham decision to excuse all poor review conduct by an agency, like a county or a city. In his belief, "That assessment can be made by the SEPA responsible official during the course of the appeal." In other words, if the County reviewer follows the appeal and simply says about the impacts, "who cares?," then the Examiner will likewise not care.
  
  As Olbrechts continues, "In short, SEPA appellants often find themselves defeating their inadequate assessment claims in the process of proving those claims." In the case of this Southworth forest violation, "There's no question that a few mistakes were made... [but] those mistakes are wholly irrelevant to whether the level of SEPA review adequately addressed potential impacts." That's because the appellants did Heacock's job for him by identifying impacts, and he responded by saying he would have done nothing differently had he known the additional facts. Once again, "who cares?"
  
  "To the extent that Mr. Heacock's review failed to consider the impacts identified by Mr. Clemmensen prior to issuance of the MDNS, Mr. Clemmensen gave Mr. Heacock the information he needed during the course of the appeal hearing," Olbrechts concluded. It doesn't matter that Heacock was working at home and distracted by his pets and "important" incoming calls from colleagues during testimony. It also didn't matter that Heacock made alarmingly erroneous statements about the parcel and surrounding area through the very end of his testimony. The Examiner will simply take the reviewer's marginal presence at the hearing as evidence of expert review. The courts must intervene to debunk Olbrechts' continued misuse of the Moss case.
• Protecting your neighborhood is a "Pay to Play" proposition. Since County reviewers may not be diligent in assessing environmental impacts, holding violators accountable, or enforcing their own code, you could have no choice but to appeal a controversial permit. But you will pay $3,000 just for the right to appeal in Kitsap County, and you could incur tens of thousands of dollars of legal expenses. If you represent yourself instead, be prepared to expend a massive amount of time in preparing and arguing the appeal, and you still will likely want to consult legal counsel on the side. Despite that effort, be prepared for the Examiner to not even rule on your relief requests.
• Community concerns can be ignored. Both Heacock and the Examiner find no value in community comments unless those concerns are illuminating a specific impact against a specific neighbor, and even then, those specific neighbors must be the ones to eventually appeal if the County ignores them. "[A]lthough suggestive of the seriousness of a particular impact, the number of comments submitted on an application is irrelevant to the environmental review," Olbrechts said. "The impacts identified in those comments is what is significant." In this case, the community provided tangible impacts during the years following the violation, and the County ignored them anyway, losing many of those comments along the way. (The SEPA determination will forever remain inaccurate in its stated comment count.) The developers had mentioned filing a lawsuit against the most impacted neighbor in this action, and that neighbor decided not to speak up to protect herself. The County did not care enough to reach out to her when notified of this circumstance.
• Forest conversions in Kitsap County are not well regulated. Although the County DCD took control of forest conversion permits from the State in 2020, its code is not written to actually handle them. "The County's forest practices regulations are very sparse," the Examiner opined. Incredibly, he continued by completely invalidating the County's use of SDAP grading permits as a substitute for forest practices generally: "To the extent that the County takes the position that an SDAP can substitute for a forest practices permit anytime a forest practices permit is required, that position is found incorrect. There is nothing in the KCC that authorizes an SDAP to substitute for a required forest practices permit."
• Neighbors' efforts to protect themselves can be used against them. According to both Heacock and the Examiner, neighbors' own mitigation efforts after a violation can be credited to the violating developer, reducing the mitigating conditions required on the project site. In Southworth, neighbors' efforts to bolster tree buffers and build solid fencing in the six years between the violation and the appeal were considered a solution to the problem caused by the violator. However, the Examiner also ruled that when Edwards committed timber trespass in the original clear-cut, that act's own impacts cannot result in additional mitigation.
  
  What Olbrechts is thus saying with this ruling is that a developer can remove vegetation on a neighboring property as part of a violation but that neighbor's remaining trees can still be credited towards the mitigation of the impacts that result. He stated, "[T]he adjoining properties and right of way are all buffered by trees on or off the Edwards property," which additionally neglects to recognize that those buffers on the neighboring properties were proven via evidence to be suffering and dying back because of the adjacent deforestation. Impacted neighbors lose and violators win regardless.
• Neighbors are also responsible for self-mitigating. Requiring the developer to mitigate all impacts is, according to the Examiner, "a very backwards entitlement argument." This statement makes no sense to the appellants or the community, because it amplifies the argument made by the developers and County during this process: If you don't like the significant, adverse environmental impacts of a deforestation, then spend the money to do something about it on your neighboring property or sell and move away. That's clearly not a solution contemplated by SEPA law because it's ludicrous.
• Aerial photos are insufficient to prove clearing limit violations. Despite showing a variety of satellite photography mixed with closer aerial side renderings and drone photography to show that the developers cleared more area than they declared on their plans, the Examiner declared aerial photos too inaccurate for enforcement. He ultimately ruled in favor of an engineer who visited the site a year after the clearing and who never saw it prior to its stabilization with pasture grasses. The Examiner also diminished the bulk of the appellants' evidence of under-reported clearing because they had not walked the property themselves, which obviously would have required an act of trespass. Once again, Olbrechts leaves the appellants in a no-win situation.
• Kitsap County does not value rural tree retention. The Examiner recognizes that Kitsap County does not have rural tree retention policy, which complicated any measure beyond SEPA that he could have used to protect Southworth from the impacts of this violation. He also stated, though, that the removal of a forest does not cause adverse aesthetic impacts, so one can take his position on forests generally with a whole bottle of salt.
• Stormwater manual regulations are suggestions, not requirements. There were several violations of the Kitsap County Stormwater Design Manual in the civil plans for this action, but since stormwater reviewer Cecilia Olsen didn't think these errors would make any difference, she ignored them. The Examiner obliged. This is extremely dangerous thinking, because how can a reviewer know if the omissions or errors in civil plans will make a difference without actually knowing what they are? This is, once again, the self-defeating "who cares?" argument from the DCD.
• Applicants should never tell the truth on permit applications. There is no reason for an applicant for a Kitsap SDAP or other permit to be completely forthcoming on civil plans or, certainly, on a SEPA checklist. Truthful answers that illuminate a proposal's impacts will only yield mitigations against a project, and the County is likely to miss discrepancies and necessary conditions in their own review. By downplaying impacts, underreporting clearing limits and cubic yardage of dirt moved, and failing to provide revised plans when the County asks, an applicant can reduce requirements, and the Hearing Examiner will care even less than the County reviewers. Here, the developers are remaining coy about their agricultural operations, and the tactic worked, at least until they are challenged on their increased impacts after later installing those operations once the final inspection on the permit is complete.
• Approach a permit appeal with the expectation of court escalation. Since Hearing Examiners are paid by the cities and counties they supposedly correct for, they have an inherent conflict of interest. If they rule against the agency, then they could lose their contract with that agency. But appellants cannot contest a permit outcome in court until the Hearing Examiner process has occurred, which only increases the financial burden on protesting communities who are already prejudiced by Examiners like Olbrechts by his own admission. Remember to use the County appeal process to admit all your evidence and testimony with the court case as your likely outcome after the Examiner declines to jeopardize his employment with a ruling that truly holds the County accountable.