Kitsap hearing examiner hears dispute over filling wetlands for Spring Hill affordable-housing project

Kitsap County’s hearing examiner held a continued hearing March 7 on the Spring Hill consolidated appeal, where the central dispute was whether a proposed preliminary plat and mitigation plan that converts small portions of on‑site wetlands to upland can proceed under the county’s mitigation‑sequencing rules or instead requires a separate critical‑area variance.

The applicant, developer David Smith, said the 230‑unit Spring Hill project includes 138 income‑qualified homes and will avoid roughly 93% of on‑site wetlands, and that revisions reduced direct wetland impacts from about 10% to about 7% of on‑site wetlands. Smith said the project team has worked with state and federal reviewers and expects final mitigation and monitoring to meet permitting standards.

The county’s planner, Darren Gurney, told the hearing the department could not confirm the project complies with Kitsap County code’s avoidance and buffer rules and on that basis the county issued a Determination of Significance in December 2024. Gurney told the examiner the department views the preliminary‑plat review and mitigation sequencing together and that the county’s code requires applicants to show they cannot meet required buffers before those buffers may be reduced.

The factual dispute centers on two related questions: (1) whether portions of existing wetlands may be treated as part of a compensatory perimeter buffer (so‑called “indirect impacts”), and (2) whether the county’s critical‑area variance process is required when a project fills wetlands under the mitigation‑sequencing provisions. Applicant witnesses — including wetland biologists Joanne Bartlett and Robin Myers — testified they and federal/state reviewers have treated the proposed plan as acceptable and that the mitigation plan is “textbook,” including creation of new wetlands, enhancement and a 10‑year monitoring plan. Bartlett, the applicant’s wetland biologist, testified she has done wetland delineation work in Kitsap County for about 35 years and said the mitigation will produce a “functional lift.”

Gurney and county counsel focused on process and code. Gurney said county review must confirm avoidance and minimization under Kitsap County Code before concluding that impacts and fill are justified; if buffer reductions exceed thresholds set in KCC 19.202.20 the code points to the critical‑area variance procedure. The department asserts its legal interpretation means the record must show avoidance was tested against the county’s standards, not only federal/state practice.

Developer David Smith and his witnesses said the project was designed to minimize impacts while remaining economically workable for the affordable‑housing program. Smith said the team revised the site plan and shifted buildings to reduce impacts and worked with federal and state agency reviewers, including the U.S. Army Corps of Engineers and Department of Ecology, on a nationwide permit application and a mitigation plan. Corps and Ecology emails in the record state that reviewers had “no further questions at this time” on avoidance/minimization and that proposed mitigation areas “have adequate perimeter buffers.”

Gurney countered that federal/state concurrence does not automatically satisfy county code: local authority must still apply the more‑restrictive local standard and the county must be able to document avoidance and the need for any buffer reduction or fill. He said the record lacks a sufficient avoidance/alternatives analysis under county rules and that the department therefore recommended denial at the permit level and issued the SEPA Determination of Significance.

Counsel for the applicant pressed that Kitsap County’s practice has previously allowed wetland filling under mitigation sequencing and pointed to multiple past projects and to a 2016 hearing decision (Judge Forbes/Whitford Strand) cited by the applicant’s experts. County staff said past projects differ in fact patterns and agency coordination and that the department must apply its written standards consistently.

No formal motion or vote was taken in the hearing room. The examiner left the record open for post‑hearing filings: the county agreed to submit a written response to issues raised by newly admitted exhibits, the applicant will have a written reply, and the parties will complete oral closings on a follow‑up date. The hearing examiner also admitted a set of supplemental exhibits the applicant had offered during the session and set deadlines for written supplement and reply.

The hearing continues as a legal and technical review. At issue going forward is whether county code requires a critical‑area variance because the department finds the applicants did not establish avoidance to the county’s standard, or whether the mitigation sequencing, as developed and reviewed by state and federal agencies and the applicant’s wetland specialists, suffices to allow the impacts and on‑site mitigation that the applicant proposes.

Next steps: the examiner set a schedule in‑hearing for written submissions (county response, applicant reply) and for resumed testimony and oral closings the following week. The examiner will decide after the record is complete whether the county erred in issuing the SEPA Determination of Significance and whether the plat/performance‑based‑development and any required variances should move forward.