BEFORE THE WESTERN WASHINGTON GROWTH MANAGEMENT
HEARINGS BOARD
STATE OF WASHINGTON
TOWN OF FRIDAY HARBOR, FRED R. KLEIN, )
JOHN M. CAMPBELL, FREDERICK E. ELLIS, JR., )
AND LYNN BAHRYCH, et al., )
)
Petitioners, )
) Case No. 99-2-0010c
)
v. )
) BRIEF OF PETITIONER ) FRED R. KLEIN SAN JUAN COUNTY, )
)
Respondent, )
)
)
and )
)
JOE SYMONS, FRIENDS OF THE SAN JUANS, )
and KAREN J. KEY SPECK, et al., )
)
Intervenors, )
_________________________________________)
1. Petitioner: Fred R. Klein
PO Box 1089
Eastsound, WA 98245
360-376-5377
2. Facts:
A. By resolution, the Board of County Commissioners (BOCC) of San Juan County (SJC, "the County") elected to adopt a comprehensive land use plan and development regulations under the provision of RCW 36.70A, The Growth Management Act ("GMA", "the Act"). On June 15, 1998, the BOCC adopted Ordinance #2-1998, approving the County’s GMA mandated Comprehensive Plan (CP) and Unified Development Code (UDC). Ordinance #2-1998 was published on December 16, 1998 and the CP and UDC had an effective date of December 20, 1998.
B. Section B, Element 2.1.C of the CP states that "the land use densities established in 1979 as part of the original Comprehensive Plan have been retained in this Plan on the Official Maps (OMs)...". Petitioner alleges, and Respondent has not challenged, that this decision came down from the BOCC at the initial stage of public participation in the GMA planning process. Intervenor Symons, invited by the BOCC to chair the District 1, Citizens’ Advisory Committee and also a member of the Steering Committee, a fully active participant in the (supposedly) "bottom-up" public participation process, confirms in his brief that this occurred in 1993. Changes in land use densities were not permitted to be "on the table" for discussion between the public and County planning staff and officials.
C. On February 16, 1999 Fred R. Klein (Petitioner) filed a Petition for Review (PFR) with this Board, alleging the the CP and UDC do not comply with the requirements of the GMA. On April 23, 1999, the Board granted Petitioner’s motions to amend his petition such that the relief sought be expanded to request invalidation of Section B, Element 2 of the CP. Subsequently in a Rebuttal to Respndent’s Response to Petitioner’s Motion to Amend, Petitioner agreed to limit his request for invalidation to Section B, Element 2.1, 2.2A, 2.3, and 2.4. Also on April 23, 1999, the Board granted Petitioner’s motion to supplement the record with a map of SJC with the stipulation that it contain only information already in the County’s record. The Board’s Order stated that the "supporting exhibits shall be identified by County record number on the supplemental exhibit".
D. Petitioner alleges that:
-- the adopted plan contains a Vision Statement emphasizing the rural character and natural beauty of the islands which is inconsistant with the development patterns and development potential permitted in the body of the plan.
-- the adopted plan does nothing to encourage development in "urban" areas nor discourage the continuing conversion of rural land into sprawling, low-density residential development per the primary goals of GMA.
-- the process of creating the adopted plan excluded consideration of any changes from the 1979 plan in residential densities to meet the primary goals of GMA.
-- the adopted Plan’s Land Use Designations are inconsistant with the allowable residential densities shown on the Official Maps.
-- by failing to permit consideration of changes from the residential densities of the 1979 Plan in their adoption of the 1997 revisions and as a consequence of this failure, implicitely allow a continuation of development trends contrary to the Vision Statement and the goals of GMA, the SJC Commissioners prevented the citizens of San Juan County from "Fulfill(ing) the responsibilities of each generation as trustee of the environment for succeeding generations" as per RCW 43.21C.020(2)(a).
-- by failing to permit consideration of changes from the residential densities of the 1979 Plan in their adoption of the 1997 revisions and as a consequence of this failure, implicitely allow a continuation of development trends contrary to their responsibilities to "Utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man’s environment" as per RCW 43.21C.030(a).
3. Issues from Amended Pre-Hearing Order addressed by this Brief for resolution by the Board:
1. Does CP Section 2.1C, which retains the 1979 zoning densities, fail to comply with the Growth Management Act (GMA, Act), specifically Sections .020(1), (2), (12), and/or .110?
2. Does the use of initial densities of 2 dwelling units (du) per acre and/or 1 du/2 ac. outside of but adjacent to Friday Harbor urban growth area fail to comply with the GMA ?
3. Do the provisions of Unified Development Code (UDC)(sic, should be CP) 2.2.A(12) allowing 1 guest house for each single family residence fail to comply with the above provisions of the GMA concerning urban growth and/or fail to comply with .070(5)(d) requiring rural growth and rural areas and/or fail to comply with .020(9) and (10)?
9. Do the allowable density provisions of the CP and UDC fail to comply with Goal 6 of the GMA because of the failure to restrict growth to appropriate levels and places?
10. Is the CP internally consistent and/or consistent with the adopted DRs?
12. Do the density provisions in designated resource lands comply with the GMA?
13. Do any of the above allegations substantially interfere with the goals of the GMA?
4. Brief Overview
A. The Growth Management Act (GMA, the Act) acknowledges that the "old way of doing things" (i.e., non-GMA planning and decision-making) threatens the quality of life enjoyed by Washington’s residents, and that in order to meet this threat, new and important steps need to be taken. In effect, the GMA requires local governments both to manage change and change to manage. When compared to the past, the "change" that the GMA will sometimes require in local plans and development regulations is nothing less than transformational .
(Pg. 1005, Case No. 95-3-0011).
B. One of those changes is that a comprehensive plan is no longer a binder full of pages that is placed on a shelf, the sole purpose of which is to give someone the responsibility of dusting. (Pg. 1147, Case No. 95-2-0067)
C. GMA provides a new framework for land use planning and the regulation of development which requires that locally-developed plans be consistent internally and includes a requirement that planning and plan implimentation actions should address difficult issues that have resisted resolution in the past such as concentrating growth in urban areas and the designation and conservation of agricultural, forest, and mineral resource lands. (WAC 365-195-010) (emphasis added)
D. The Act’s mandated outcome stands in sharp contrast to the undifferentiated suburban sprawl that, in many other parts of the country, has contributed to environmental degradation, economic stagnation and an eroded sense of community that, in turn, has dire social consequences. (Pg. 1201, Case No. 95-3-0039)
E. On the most fundemental level, the GMA planning process in San Juan County (SJC) was flawed by a failure to address the development patterns and development potential implied by the 1979 residential densities which remain embedded in the body of the Plan and the Official Maps. Efforts to gloss over or obscure this failure have resulted in a plan akin to a fraud in that it purports to be something which it is not. The Plan purports to honor the Vision Statement, comply with GMA, and to manage growth in a manner consistant with them...in this Petitioner’s opinion, it does none of these things.
F. The 1979 density patterns and development potential lurk beneath the present pastoral character of this group of islands held to be "an extraordinary treasure of natural beauty" by its citizens and surrounded by shorelines of state-wide significance. (quote from SJC Vision Statement) With SJC being the fastest growing county in Washington State, the manifestation of these patterns and the exploitation of the currently embedded development potential shall, within the twenty year time frame of GMA , radically alter...some might say destroy... the delicate balance between our beloved rural community and the natural environment.
G. In addressing the issues in the Pre Hearing Order, this brief will explore two themes. First, that the SJC CP’s use of certain terms, criteria, and definitions related to land use are contrary to those determined by the GMA, and that because of this, the Plan does not meet and substantially interferes with the goals of GMA. Second, that the Vision Statement, Land Use Designation criteria stated in the Comprehensive Plan (CP) , and the Density Boundaries shown on the Official Maps (OMs) are rift with inconsistencies, a state which in and by itself deems the Plan to be noncompiant with the GMA.
H. Although this brief takes strong issue with portions of Element 2, Land Use, Petitioner also acknowledges that the Plan is truly comprehensive and may well be exemplary in many areas. Certainly a lot of good work went into its creation. In some respects, the hands of county planners were tied. Notwithstanding this good work, on numerous occasions during public meetings, hearings, and with written comments, Petitioner raised land use density issues during the GMA planning process to no avail, hence his petition filed in February, ‘99.
I. The desired outcome, from this Petitioner’s point of view, is for the Board to invalidate and remand back to San Juan County, Element 2, Land Use, Sections 2.1, 2.2, and 2.3 of the Comprehensive Plan, the Official Maps, and those portions of the Unified Development Code pertaining thereto in order that the citizens, planners, and elected officials may fully engage the challenges of meeting the requirements of GMA and facing the contradictions between their vision for the future, the currently allowable development potential, and the resultant patterns of rural sprawl.
5. ISSUE #1: Does CP Section 2.1C, which retains the 1979 zoning densities, fail to comply with the Growth Management Act (GMA, Act), specifically Sections .020(1), (2), (12), and/or .110?
A. General:
1. The relevant portions of CP Section 2.1.C state:
"The land use densities established in 1979 as part of the original Comprehensive Plan have been retained in this Plan on the Official Maps..." "The densities were based on the best available information at the time and received considerable public input. The patterns of development which have occurred since 1979 have been greatly influenced by the established densities. In many instances the densities have been voluntarily reduced by property owners through conservation easements with the San Juan Preservation Trust (a private, non-profit land trust). Also, density reduction is being achieved through purchase of conservation easements and land acquisition by the San Juan County Land Bank." (Exhibit "A")
B. Argument and Authority: Compliance with GMA Section .020 (1) and (2)
1. In his petition for review (PFR), Petiioner claims " The adopted plan does nothing to encourage development in "urban" areas nor discourage the continuing conversion of rural land into sprawling, low-density residential development per the primary goals of GMA". GMA Sections .020(1) and (2) are Planning Goals and state:
(1) Urban growth. Encourage development in urban areas where adequate public facilities and services exist or can be provided in an efficient manner.
(2) Reduce sprawl. Reduce the inappropriate conversion of undeveloped land into sprawling, low-density development.
2. While the preamble to RCW 36.70A.020 clarifies that the goals are not listed in any order of priority, a close examination of the 13 goals reveals that there are some important distinctions that can be drawn among them. Unlike the other eleven, the two planning goals cited above operate as organizing principles at the county-wide level. Thus, they have not only a procedural dimension, but also direct a tangible and measurable outcome. In contrast, Goal 6, regarding property rights, and Goal 11, regarding public participation, do not specifically or implitly describe the physical form or configuration of the region that should evolve. Rather, they address how local government is obligated to undertake the comprehen-sive planning and implementing actions that will shape the region (i.e.,without taking private property and with enhanced public participation). (Pg.1183, Case No. 95-3-0039)
3. The "word" came down from the BOCC that the 1979 densities were to be retained in the new CP in 1993 at the beginning of the GMA planning process and colored all subsequent public meetings, hearings, and deliberations. One of the consequences of that edict (unwritten to the best knowledge of Petitioner) was that all of the time and money spent on land use issues (other than critical areas) was directed towards the nuanced designation definitions and hair splitting, e.g., on the definition of "home occupations", size limitations on "cottage industries", and whether or not bed & breakfasts are permitted and under what circumstances. Another consequence...because no one was totally oblivious to GMA requirements...was that nuanced language and increasingly questionable definitions were crafted to create an illusion of compliance.
4. For example, included in CP 2.1.C is the seemingly innocuous sentence referring to the inclusion of the 1979 densities in the new Plan:
"The densities were based on the best available information at the time and received considerable public input."
However true that may be, what relevance does it have 20 years later to the rigorous mandate of GMA regarding density and land use issues? Can GMA requirements for public participation be met with "public input" of 20 years ago, however "considerable" it may have been?
5. The CP provides General Policy 2.2.A.3 stating:
"Direct high density residential and mixed use development into activity centers to prevent sprawl and relieve growth pressure in the surrounding rural areas".
Although derived from the GMA goals, this statement confuses the Petitioner. He understands that such a policy, backed up by regulatory limitations and incentives , to "Direct high density residential and mixed use development into activity centers might relieve growth pressure in the surrounding rural areas", but how would this, in and of itself, "prevent sprawl"? The County’s committment to the 1979 Density Boundaries locks in rural densities within large portions of the Eastsound Activity Center (reference the Official Map), and simultaneously retains urban sprawl densities (1 du/ 2 acres) in large, undeveloped tracts to the west; in any event, there is nothing in the UDC which even hints at making this happen. This policy, laced with the buzzwords of GMA, is crafted to appear to be something it is not.
6. The SJC CP largely avoids the use of the terms "Urban Growth" and "Urban Growth Areas" (UGA); only one UGA has been designated, the Town of Friday Harbor on San Juan Island. The main commercial centers on Orcas Island (the Village of Eastsound) and Lopez Island (Lopez Village) are designated as Activity Centers, in deference to local sensibilities which favor the notion that the county remains a rural entity. The CP contends that these Activity Centers are not urban but rural. However, upon examination, by GMA definitions, the Activity Centers have, with some notable exceptions, the allowable densities, roads, sewer and water services, and relatively high density mixed residential and commercial uses which are required by the Act to be within UGAs.
7. Incidently, having skirted the issue of properly designating UGAs, the CP avoids the task of allocating projected growth between UGAs and rural areas.
8. The GMA universe consists of three major land use types: (1) resource lands; (2) urban lands, which are within UGAs; and (3) rural lands which are entirely outside UGAs and exclude resource lands (Pg. 1198, Case No. 95-3-0039) (emphasis added). Putting aside resource lands for the moment, Board decisions give guidance as to what is what, to wit:
a. The Act does a good job of describing what is to be in urban areas (Pg. 1198, Case No. 95-3-0039), and by definition, "urban growth" refers to "growth that makes intensive use of land for the location of buildings, structures, and impermeable surfaces to such a degree as to be incompatible with the primary use of such land for the production of food, other agricultural products, or fiber, or the extraction of mineral resources" (RCW 36.70.A.030 (14).
Furthermore, the Act states that outside of UGAs,
"growth can occur only if it is not urban in nature..." (RCW 36.70A.110 [1]).
b. In neighboring counties, the Board declared that rural densities greater than 1 du/5 acres (Skagit Co., Case No. 95-2-0065) and that 1 du/3 acres (Whatcom Co., Case No. 94-2-0009) fail to comply with GMA .
c. A pattern of 1- and 2.5 acre lots meets the Act’s definition of urban growth, which is to say that it precludes "the primary use of such land for the production of food, other agricultural products...etc. To argue that the ability to grow berries on a 1- and 2.5 acre lots renders them "rural" within the meaning and objectives of the GMA, is preposterous. (Case No. 95-3-0039)
9. Dealing first with Activity Centers or UGAs, how can we consider an Activity Center such as Eastsound that, in addition to commercial areas which place no limit on the number of du’s/acre, have mixed residential densities of 8 du’s/acre, 2 du’s/acre and 1 du/5 acres, along with typically urban services such as sewer and water anything other than "urban"? Therefore, regardless of the chosen term, for purposes of measuring GMA compliance, the Activity Centers (at least those served by sewer and water) must be considered de facto UGAs. (Attached Exhibit "B", a portion of the Eastsound SubArea Plan, and included within the SJC CP.)
10. Among the anomolies resulting from the County’s committment to the 1979 densities is the restriction of residential development in certain areas of Eastsound to only 1 du/5 acres and then abutting the Activity Center with Rural Farm-Forest lands including several parcels in excess of 50 acres each with a density of 1 du/2 acres...a sure recipe for sprawl. (Petitioner’s Exhibit "D-3" in Petition No. 99-2-0010, a portion of the Official Map; noted herein as Exhibit "C"). The boundaries of the Eastsound Activity Center are coincident with the boundaries of the subarea.
11. Not only has the County’s committment to the 1979 densities failed to encourage growth at urban densities within Eastsound, it has allowed land served by sewer to be squandered in the form of the development of 5 acre residential lots. This is indicated by the encircled area on attached Exhibit "D", the Eastsound Subarea Land Use map, which was one parcel prior to the GMA planning process. GMA requires that UGAs "shall permit urban densities" (RCW 36.70.A.110 [2]) (emphasis added, "shall" meaning "must"); clearly that requirement has not been met.
12. Petitioner notes that within Eastsound, the largest village in the county, with the exception of four government assisted low income developments, none of the "high density" residential land (Village Residential designation allowing 8 du’s/acre attached and 6 du’s/acre detached) is being developed for residential uses; rather, it is being developed for non-commercial community service uses such as performing arts center, medical center, senior services, fire hall, private schools, and churches. The CP, locked into the 1979 densities, fails to compensate for the loss of this residential development potential within the village, thus fails to meet the GMA directive for encouraging residential development within UGAs which, in turn, would allow for the reduction of the conversion of rural lands into sprawling low density development.
13. With regard to rural lands, the challenge of reducing sprawl and reducing the inappropriate conversion of undeveloped land in SJC into sprawling, low-density development is admittedly troublesome. It is not as though the county consists of large tracts of un-subdivided virgin, second growth, or even third growth timber. What’s more, many existing parcels are undeveloped, although Appendix 1 of the CP, Land Use Inventory reveals no numbers in this regard. Reviewing the OMs reveals that although occasional un-subdivided quarter sections can be found, rural lands in SJC have been by and large already subdivided, albeit not to the extent permitted by the Density Boundary indications. The key to reducing the inappropriate conversion of undeveloped land in SJC into sprawling, low-density development lies in bringing the Density Boundary limitations into coherence with the density limitations of the Land Use Designations and to adjust the LUD density limitations to those which fully comply with GMA rulings on what is appropriate in rural areas. Intervenor Symons’ analysis of potential parcels in rural areas is convincing and included herein by reference.
14. For example, Rural Farm-Forest (RFF), as defined in the CP 2.3.B.b., calls for "parcels "generally 5 to 10 acres in size". As defined, this probably passes muster as "rural", but can it still be "rural" if a density overlay permits 1 du/2 acres? A review of the OMs reveals that RFF exists with density overlays which vary from 1 du/15 acres to 1 du/2 acres. As to which density limitation controls, the CP is clear:
"Recognize that the maximum allowable density applied to land by designation on the Official Maps reflects the general intent of this Plan for dresidential development and should be allowed unless maximum density would exceed site capabilities or unless it would thwart other applicable County land use regulations." (CP Section 2.2.A.8.) (emphasis added)
Much has been written as to what GMA requires of residential densities in rural areas:
"The Board now holds that, as a general rule, new 1- and 2.5- acre lots are prohibited as a residential development pattern in rural areas." (Case No. 95-3-0039)
This Board declared that densities greater than 1 du/5 acres in rural areas not only fail to comply with GMA, but substantially interfere with its goals in Case
No. 95-2-0065.
15. Rural Residential (RR) as defined in CP 2.3.B.c. calls for parcels "generally 2 to 5 acres in size, and may also include areas with lots less than 2 acres in size". (emphsis added) The phrase "may also include areas with lots less than 2 acres in size" is read as meaning that land designated as RR may include areas where the land has previously been subdivided into lots less than the 2 acres prescribed by definition, rather than to permit future subdivision into lots of less than 2 acres. Accepting for the moment that 5 acre parcels qualify as being "rural", does this definition as loosely allowing for density as great as 1 du/2 acres meet the rigor of GMA as being "rural"? And, when we look at the OMs and find RR areas with density overlays allowing 1 du/half acre, would resultant development be GMA conformant?
Looking more closely at the OMs, it may appear that much of the land designated RR is already subdivided into small lots; this is true, (Petitioner says "much" not "all"; there are notable large parcels as well) however, upon even more close inspection, these lots are not so small afterall and it is clear that these areas contain many lots of 5 acres and more, which are eminently subdividable with existing density overlays.
16. The above-referenced Board decisions help us address these questions; Petitioner believes it is self evident that the record is clear that both the designation definition and the Density Boundary variations flaw Rural Residential’s compliance with the GMA. If it is allowed to stand as is, the result will be unrelenting low density rural sprawl in those areas so designated.
B. Argument and Authority: Compliance with GMA Section .020 (12)
1. GMA Section .020(12) is another Planning Goal which states:
(12) Public facilities and services. Ensure that those public facilities and services necessary to support development shall be adequate to serve the development at the time the development is available for occupancy and use without decreasing current service levels below locally established minimum standards." (emphasis added)
2. Available time precludes Petitioner from addressing this issue.
C. Argument and Authority: Compliance with GMA Section .110
1. GMA Section .110, entitled Comprehensive plans--Urban growth areas, states in part:
"(1) Each county that is required or chooses to plan under RCW 36.70A.040 shall designate an urban growth area or areas within which urban growth shall be encouraged and outside of which growth can occur only if it is not urban in nature...
"(2) ...Each urban growth area shall permit urban densities...An urban growth area determination may include a reasonable land market supply factor and shall permit a range of urban densities and uses.
"(3) Urban growth should be located first in areas already characterized by urban growth that have adequate existing public facility and service capacities to serve such development, second in areas already characterized by urban growth that will be served adequately by a combination of both existing public facilities and services and any additional neeeded public facilities and services that are provided by either public or private sources, and third in the remaining portions of the urban growth areas..."
2. Section .110(1) uses the somewhat equivocal word "encouraged" with respect to what is to happen inside the designated urban growth area. Significantly, however, it says something very different with regard to land outside the urban growth area. The phrase "... outside of which growth can occur only if it is not urban in nature" is not equivocal. It does not say "reduce" or "discourage" urban growth outside the UGA. The use of the word "only" clearly means that urban growth is prohibited outside of the UGA. (Pg. 20, Case No. 93-3-0010)
3. Having returned to this item in the waning hours before this brief must be submitted, Petitioner refers reader to 5.B. para. 3 thru 9 above for comments and argument regarding SJC’s failure to designate Activity Centers (at least those with sewer systems) as UGAs, thereby allowing urban growth within so-called rural areas. Compounding the problem, the de facto UGA of Eastsound contains large areas where development at urban densities is prohibited. Given that SJC is a group of islands, and given that only one UGA (on San Juan Island) has been designated, it would seem that the other major (state ferry-served) islands are stuck with a mix of urban development patterns and densities prohibited by GMA to occur outside of UGAs, and not-so-rural sprawl development patterns consecrated by a density regulation passed in 1979.
6. ISSUE #2: Does the use of initial densities of 2 dwelling units (du) per acre and/or 1 du per 2 acres outside of but adjacent to the Friday Harbor urban growth area fail to comply with the GMA?
A. General:
1. This issue is a specific instance of allowing urban growth in a rural area, having Land Use Designation definitions inconsistent with the underlying allowable density (i.e., vis a vis the Density Boundaries which show up on the OMs), and failing to plan for the development of public facilities and services which such growth would require; Petitioner alleges that these conditions are not limited to areas abutting Friday Harbor but rather, are widespread throughout SJC. Petitioner is confident that the petition of the Town of Friday Harbor in this consolidated case will address it in full, and he will not attempt to duplicate the relevant arguments other than to reference Petitioner’s discussion and arguments herein under the headings, 5.B and 9.B.
2. It is interesting to note that in CP Section 2.1.C after stating that the 1979 densities are being retained, it states, "...with one exception, the Turn Point/Pear Point area on San Juan Island. In this area, redefining density may be appropriate and the County will work with property owners to determine the most appropriate course of action for density changes over time." There is a clear admission that there’s a problem, and there’s a clear assumption that GMA compliance can be achieved by simply saying density changes "may be appropriate" and it will be solved by a cooperative effort between the County and property owners "over time". To this Petitioner, such a process does not meet the regulatory rigor which GMA demands.
7. ISSUE #3: Do the provisions of Unified Development Code (UDC)(sic) 2.2.A(12) allowing 1 guest house for each single family residence fail to comply with the above provisions of the GMA concerning urban growth and/or fail to comply with .070(5)(d) requiring rural growth and rural areas and/or fail to comply with .020(9) and (10)?
A. General:
1. Petitioner defers to petitioner Bahyrach et al for full discussion and argument of this issue except to add the following comments.
B. Argument and Authority: Specifics:
1. As argued above in item 5.B, urban growth must occur within UGAs, and it is clear that the 1979 Density Boundaries allow significant growth (i.e., future land subdivision and residential development at urban densities) in rural areas. The question before us regarding guest houses is whether or not their allowance exacerbates this aspect of the CP’s noncompliance with GMA.
2. Of particular interest in CP 2.2.A (12) is the statement, "As an affordable housing opportunity, the long-term rental of guest houses may be allowed". The word "may" implies that long term rental is conditional, perhaps as to terms, future regulation, or specific circumstances. Nowhere in the CP or UDC can be found any guidance as to when or under what set of circumstances long-term rentals are possible. When a guest house is available for long-term rental and thus supports a second family household, the allowable density is effectively doubled. Hence, with respect to rural lands with an allowable density of 1 du/5 acres which as the Board has determined slides under the wire to qualify as "rural", in reality the density becomes 1 du/2.5 acres. Although this density would not be expressed as allowing 2.5 acre lots, the result would be essentially equivalent. Such a density is not permissable in rural areas or so the Board has ruled. "The Board holds that such a development pattern within the rural area would also constitute sprawl ", and "The Board now holds that, as a general rule, new 1- and 2.5 acre lots are prohibited as a residential development pattern in rural areas". (Page 1201, Case No. 95-3-0039)
3. Although CP 2.2.A (12) is silent of the issue of "short-term" rentals, UDC 4.19.3 allows for short-term (up to 30 days) rentals throughout the rural areas with only nominal performance standards, whereas in Activity Centers and (so called) Rural Residential (with as much as 1 du/half acre per Density Boundaries and 1 du/2 acres per definition), and Conservancy areas, guest house rental is limited to those in rental use prior to 1997. By providing the rental option, the UDC actually encourages guest houses (and the doubling of density) in rural areas. With respect to the physical impacts on the land and requirements of public services, Petition asserts that it is irrelevant as to whether the guest house serves as short or long term rental housing regarding the issue of rural density.
4. To this Petitioner, the topic of guest houses in hopelessly muddled in the CP and UDC. They are defined in the UDC as:
"A detached or attached accessory structure secondary to the principal single- family residential unit designed and most commonly used for irregular residential occupancy by family members, guests, and persons providing health care or property maintenance for the owner".
Guest houses also function as transient accomodations (both legal and illegal commerical uses), long- term not-so-affordable rentals, as well as a bone thrown to advocates for some county action to promote the construction of lower cost, affordable housing. The is no mention or discussion in the CP of how an "attached accessory structure" differs from say, a guest suite (with or without a separate entrance) within a residence, e.g., when does this become a duplex? Nowhere are their implications on public facilities dealt with. No distinctions are made as to allowability on lots of varied sizes or designations however, there are limitations on short-term rentals within Activity Centers, Rural Residential, and Conservancy designations. The CP and UDC are emphatic that "a guest house is permitted on any lot having a single-family residence as the principal use of the lot" (UDC 4.18.1.) (Exhibit "E")
5. Given that guest houses have multiple functions, and given that only a portion of the summer peak population is accomodated in customary commercial accomodations (motels, bed & breakfasts, and given that new motels, resorts, and hotels are not anticipated (with the possible exception of San Juan Island), when you take into account the projected population growth and the ratio of permanent population to summer peaks (detailed in Intervenor Symons’ brief) you have to ask the question: Where are these people going to stay? Although records of existing guest houses do not exist, anecdotal information from the SJC Permit Center personnel says that they are "in the hundreds". Surely it can be surmized that rates of guest house construction are significant and that we can anticipate hundreds if not thousands more.
6. And finally, given that this is one of those "difficult issues which have resisted resolution in the past", surely SJC would benefit from some prodding from the Board to acknowledge its impacts, and confront its implications with regard to GMA compliance.
8. ISSUE #9: Do the allowable density provisions of the CP and UDC fail to comply with Goal 6 of the GMA because of the failure to restrict growth to appropriate levels and places?
A. Argument and Authority: Compliance with Goal 6
1. Goal 6 is a Planning Goal from GMA Section .020(6) which states:
"(6) Property rights. Private property shall not be taken for public use without just compensation having been made. The property rights of landowners shall be protected from arbitrary and discriminatory actions."
2. This issue has been raised and argued in numerous cases before the GMA Hearing Boards by persons whose property either has or has not been rezoned as a consequence of planning efforts resulting from GMA. Inasmuch as no "rezonings" occured in the course of San Juan County’s (SJC) GMA planning efforts, it is an incipiant issue which bears comment in the event that SJC is required to rezone (of redesignate) property in order to achieve GMA compliance.
3. The root question to this incipient issue is whether a specific zoning confers with it a specific property right, and in the event that zoning of a property changes, whether or not there has there been a "taking" resulting in an uncompensated loss. The Board has spoken at length to this question:
Since neither "property rights of landowners" nor "arbitrary and discriminatory" are defined in the Act we must discern legislative intent to reach a general definition that can apply throughout this and future cases. The term arbitrary connotes actions that are ill-conceived, unreasoned, or ill-considered. The term discriminatory involves actions that single out a particular person or class of persons for different treatment without a rational basis upon which to make the segregation.
The term "property rights of landowners" could not have been intended by the Legislature to mean any of the penumbra of "rights" thought to exist by some, if not many, landownners in today’s society. Such unrecognized "rights" as the right to divide portions of land for inheritance or financing or "rights" involving local government never having the ability to change zoning, or "rights" to subdivide and develop land for maximum personal financial gain regardless of the cost to the general populace, are not included in the definition in this prong of Goal 6. Rather the "rights" intended by the Legislature could only have been those which are legally recognized, e.g., statutory, constitutional, and/or by court decision. (Pg. 1126, Case No. 95-2-0067)
4. Thus, the Respondent cannot argue that the County was forced to retain the 1979 densities for fear of legitimate legal challenges by affected landowners.
5. Looking at Goal 6 from another viewpoint, one might ask whether or not a landowner’s legitimate property rights are protected from "arbitrary and discriminatory actions" when the CP superimposes a designation describing a certain level of density upon a pattern of Density Boundaries which allows either greater or lesser density(?). The retention of the 1979 Density Boundaries (which are inconsistent with the newly adopted Land Use Designations) was in itself "an arbitrary and discriminatory action" in that it was a mere convenience to avoid imagined legal challenges from irate property owners who, in turn, imagined that they had vested "rights" in their present zoning. Although based in part on then existing development patterns, the 1979 densities reflected the naivety and compromises inherent in a first successful effort to bring some measure of land use regulation to San Juan County, prior to which, if one could get a septic permit from the county sanitarian, one could build anything, of any size, for any use, anywhere. However those densities were arrived at, it is common knowledge that they were put in place with none of the rigor demanded by the GMA. To insist that they be sacrosanct in the face of the clear and explicite requirements of the GMA is astonishing. It is clear to Petitioner that individual property owners, located for example, deep within an area designated as, say Rural Farm Forest, and bound by the "5 to 10 acre" parcel sizes specified in its criteria, who have to deal with the consequences of a neighbor with the same Rural Farm-Forest designation who elects to create a subdivision of 2 acre lots merely because of the arbitrary location of a 1979 Density Boundary line, are not being protected from "arbitrary and discriminatory actions" which have not restricted growth to appropriate levels and places.
B. Conclusion:
1. The allowable density provisions of the CP and UDC fail to comply with Goal 6 of the GMA.
9. ISSUE #10: Is the CP internally consistent and/or consistent with the adopted DRs?
A. Argument and Authority: Inconsistencies between Vision Statement and
body of the SJC Comprehensive Plan
1. To avoid redundancy, Petitioner defers to Intervenor Joe Symons’ analysis of this issue in his brief. Vision Statement included herein as Exhibit "F".
B. Argument and Authority: Inconsistencies between the Land Use Designation (LUD) criteria and the Official Maps (OMs).
1. In his petition for review (PFR), Petitioner claims "widespread inconsistencies" between the CP and OMs and cites three examples of such. Though representative, the examples fail to disclose the pervasiveness of these inconsistencies either in the extent of the land area affected or the fact that these inconsistencies cover the full spectrum of land use designations and are not limited to the Agriculture Resource, Forest Resource, and Rural Farm Forest designations cited as examples.
2. The Act requires that the plan shall be an internally consistent document and all elements shall be consistent with the future land use map. (RCW 36.70A.070)
3. The OMs indicate which Land Use Designation (LUD) has been assigned to each parcel of land in SJC. The LUD criteria are spelled out in Section 2.3 of the CP and state certain lot sizes for the various designations. For example, Rural Residential criteria state that "parcels are generally 2 to 5 acres in size, and may also include areas with lots less than 2 acres in size"; Rural Farm-Forest criteria state that "parcels are generally 5 to 10 acres in size"; Rural General Use criteria state that "parcels are 5 to 10 acres in size". Similarly for resource lands, in the LUD criteria, Agriculture Resource criteria calls for "parcels 10 acres or
larger", and Forest Resource criteria calls for "parcels 20 acres or larger" .
4. Reasonable use of a parcel of land is deemed to be met when a property owner is allowed to build a single family residence, hence the parcel sizes stated in the LUD criteria provide the allowable residential density for a given designation.
5. The OMs also display Density Boundaries which are independent of the LUDs. The Density Boundaries are what have been carried forward from1979, irrespective of the new designations; they indicate by number the area in acres required for a single dwelling unit (du). For internal consistency, the allowable residential density derived from the LUD criteria in the CP must match that allowed by the Density Boundary.
6. The inconsistencies revealed on the Official Maps are of two kinds. In some instances, OMs allow greater residential density than allowed by the criteria of the applicable LUD criteria. In other instances, the Density Boundaries on the OMs limit the allowable density to less than that described in the LUD criteria.
7. To illustrate the extent and pervaisiveness of these internal inconsistencies, Petitioner has engaged the Graphic Information System staff of SJC Public Works to prepare the enclosed maps based solely on the LUD criteria in the CP and the SJC OMs. These maps are included herein as Illustrative Exhibits "G", "H", and "I"; the maps correspond to SJC Districts 1, 2, and 3. Attached thereto are copies of the OMs and the pages of the CP which describe the LUD criteria. (Exhibit "J")
8. Although the maps are self explanatory, Petitioner points out the following: The Illustrative Exhibit maps show areas in "white" where the allowable residential Density Boundary exceeds that allowed by the various LUDs cited in the "Density/Designation Inconsistencies" chart. The maps show areas in "grey" where the allowable residential Density Boundary precludes that allowed by the various LUDs cited in the "Density/ Designation Inconsistencies" chart. For simplicitiy’s sake, no further attempt has been made to differentiate between the specific designations which are inconsistent from those which are consistent with the Density Boundaries. Areas with consistent Density/Designations remain in their respective colors. The point being made is that at a glance, the areas of "white" and light "grey" reveal that large portions of the islands have inconsistent Density/Designations.
9. Note that Forest Resource lands evaporate when an underlying residential density greater than the prescribed 1 du/20 acres is taken into account; Agricultural Resource lands are significantly diminished. Note large areas of Rural Residential lands become "grey" when the desired pockets of compact rural development are prevented by an underlying density of only 1 du/5 or 10 acres; they become "white" when the underlying allowable residential density allows for 1 du/half acre (allowing significantly smaller lots [and significantly higher density] than that of the Rural Residential designation criteria. Note Shaw Island in District 3 has a uniform Density of 1 du/5 acres irrespective of its mix of Rural Residential (allowing parcels 2 to 5 acres in size), Natural (allowing 1 du/parcel), and Rural Farm-Forest (allowing parcels 5 to 10 acres in size, thus deemed to be consistent with the Density Boundary and remaining in "green"). Similarly, Blakely Island has a uniform Density of 1 du/5 acres, but is primarily designated Forest Resource with a strip of Rural Residential along the northwest shore.
10. The extent of the inconsistencies is measured as a percentage of the total land area in each District after deducting State Parks and other areas designated as Conservancy. Note that 37% of District 1, 52% of District 2, and 36% of District 3 have Land Use Designations which are inconsistent with the Density Boundaries and are hence, noncompliant with GMA.
11. Inconsistencies between the LUD criteria and the Density Boundaries shown on the OMs are also discussed in the SJC Prosecuting Attorney’s memorandum to the SJC Board of County Commissioners (BOCC) dated March 27, 1998 and included in the Index as Exhibit 170910. Entitled "COMP. PLAN LEGAL REVIEW; INCONSISTENCIES BETWEEN OFFICIAL MAPS AND PLAN TEXT", this memo succinctly frames the issues, references the Act and Board decisions, includes a chart pointing out the inconsistencies in virtually all of the LUDs, advises the BOCC of noncompliance with GMA, and recommends modification of the Official Maps. The pervaisiveness of the inconsistencies is such that a quick tweaking of the Density Boundaries cannot deal with the problem. (Index # 170910)
12. Nor can the problem be dealt with by, say, eliminating the Density Boundary overlay. Even if that were done, SJC would be left with the problem of compliance with GMA goals (1) and (2) because of its designation definitions’ failure to meet GMA requirements.
13. In addressing this Issue, Petitioner makes no comment on the appropriateness of the criteria for and locations of the various LUDs, nor does he comment on the specific locations of the Density Boundaries. Rather, the point being made is simply that GMA requires internal consistency, in this case between the CP and the OMs. The citizens, planners, and politicians of SJC cannot "have it both ways". The eloquently described Land Use Designations speak to parcel sizes (and implicit allowable residential density) characteristic of the designation... the Density Boundaries often say something else entirely; this is "doublespeak" and contradictory.
C. Conclusion:
1. The CP is not internally consistent. The inconsistencies are so widespread and pervaisive that a change here or there cannot solve the problem. Furthermore, the significance of the inconsistencies merits invalidation of CP Sections 2.1, 2.2A, 2.3, and 2.4 and the Official Maps, and their remanding in order that these sections be revised for GMA compliance. Petitioner urges...nay pleads...the Board to recommend that SJC take a fresh look at the density boundaries and the designation criteria for the entire County.
10. ISSUE #12:Do the density provisions in designated resource lands comply with the GMA?
A. General:
1. The root of the problem with density provisions in designated resource lands lies in the County’s insistance that throughout the GMA planning process, participants, i.e., staff planners and citizens, were not allowed to discuss deviations from the 1979 Density Boundaries. Hence, densities never conceived of as being appropriate for meeting the GMA goals for resource lands were incorporated in the CP.
2. The problem is compounded by the fact that the density limitations included within the newly formulated resource land designations are inconsistent with those 1979 densities.
3. The Land Use Designation for Forest Resource Lands include the criterium that "parcels are 20 acres or larger". (CP 2.3.C.b.) On all Agricultural or Forest Resource lands, the maximum area of development which is not related to agricultural or forestry uses and activities shall be limited to 20 percent of the parcel area, but not less than one acre, regardless of assigned density. Further, in the division of a parcel by any means, the allow-able area for conversion of the parent parcel to non-farm and/or non-forestry use shall not be exceeded. this shall not apply to parcels smaller than 5 acres. (UDC Table3.2, Note 15) (Exhibit "K")
B. Argument and Authority:
1. It is significant that the Act required cities and counties to identify and conserve resource lands and to identify and protect critical areas before the date that IUGAs had to be adopted. This sequence illustrates a fundamental axiom of growth management: "the land speaks first." Only after a county’s agricultural, forestry and mineral resource lands have been identified and acions taken to conserve them, and its critical areas, including aquifers, are identified and protected, is it then possible and appropriate to determine where on the remaining land, urban growth should be directed pursuant to RCW 36.70.A.110. (Case No. 95-3-0039)
2. By inference, only after identification of resource lands and critical areas and areas for urban growth, can the rural lands be identified. This process sequence was not followed, rather, all designations (with the exception of critical areas which are designated by overlay) were assigned to various land parcels simultaneously and presented to the citizens by county planning department staff in the form of four alternative maps. Comments were invited, and ultimately a "preferred alternative" was selected. It was only then that the location of resource lands was determined.
3. The 1979 densities are not kind to Forest Resource (FOR) lands. Out of all of FOR designated lands on the OMs, a mere 50 acres on Lopez Island in District 3 meets the 1 du/20 acre residential density implied by the designation criteria. Petitioner states "implied" inasmuch as the criteria simply says that "parcels are 20 acres or larger"; Petitioner returns to the concept of "reasonable use" being that of being allowed to build a single family home on each parcel. Given the primary purpose of forest resource lands per GMA, Petitioner feels safe in making the leap that the "20 acres or larger" criterium is intended to restrict residential development to 1 du/20 acres. However, referring again to the OMs, the 1979 densities for FOR lands vary from 1 du/5 acres to 1 du/15 acres, plus, the one area on Lopez at 1 du/20 acres. Thus, on the Petitioner’s maps showing Inconsistencies between Allowable Residential Densities and Designations, Exhibits "G", "H", and "I", all of the Forest Resource lands disappear in "white" , with the exception, of course, of that 50 acre area on Lopez. The range of allowable densities of 1 du/5 acres to 1 du/15 acres remind the Petitioner of GMA compliant densities for rural lands noted in previous cases before the Board; Petitioner found no examples of such high residential densities in resource lands, and believes them to be non-compliant with the goals of GMA.
4. The UDC does put some restrictions on the development of FOR lands, to wit:
On all Agricultural or Forest Resource lands, the maximum area of development which is not related to agricultural or forestry uses and activities shall be limited to 20 percent of the parcel area, but not less than one acre, regardless of assigned density. Further, in the division of a parcel by any means, the allowable area for conversion of the parent parcel to non-farm and/or non-forestry use shall not be exceeded. this shall not apply to parcels smaller than 5 acres. (UDC Table3.2, Note 15) (Exhibit "K")
5. Taking a 40 acre quarter section of FOR land with a density of 1 du/5 acres as an example, the CP and UDC would permit 20% or a total of 8 acres to be developed for non-forest activities; the quarter section could be subdivided into eight 5 acre lots; and each lot could clear 43,680 sq. ft. for a homesite. Ok, maybe "development" area would have to include clearing a path for driveways, so the allowable clearing for a homesite might be less. Now, whether or not the remaining 4 acres on each lot would allow for "land primarily devoted to growing trees for long-term commercial timber production on land that can be economically and practically managed for such production" is a question the Board must answer "yes" to if it is to find such a density/designation compliant with the GMA. At least the loggers wouldn’t have to worry about roads.
6. Most of the FOR land in Districts 1 and 2 has the 1 du/10 acre density overlay, so the situation isn’t quite so grim; if one goes through the same exercise, the resources are still reduced to four, 8 acre areas Can anyone seriously make the case that this combination of allowable residential density and development restrictions is a viable strategy for conserving resource lands as required by GMA?
7. It doesn’t take a trained eye to review the OMs and determine to what extent the FOR land has already been subdivided for residential development; the pattern is easily discernable; some has, and quite a bit hasn’t. Petitioner does not claim there is an imminent threat of development of that remaining; but if the Density Boundaries allowing this intensity of residential development remain, these resources will surely be developed in the next 20 years and not be conserved per the GMA mandate. Petitioner asks, do we really need forest resource lands in SJC? Perhaps there would be more integrity to just forget about the resource tag and call them what they appear to be, namely, low density rural residential and be done with it. It’s the Board’s call.
8. Agricultural Resource (AR) lands are going to get short shrift in this brief; the contradictions between the designation criteria and the Density Boundaries are not so severe; they are often compatible. Nonetheless, anomolies exist which clearly don’t comply with GMA. AR lands in small parcels just west of Friday Harbor with a 1 du/5 acre density are surely not long for this world. Development restrictions in UDC cited above do not apply to parcels less than 5 acres. Casual review of the District 1 and 3 OMs reveal arbitrary and capricious changes in allowable density of AR land...not at all conducive to long term conservation.
C. Conclusion:
1. The density provisions in designated resource lands do not comply with the GMA.
11. ISSUE #13:Do any of the above allegations substantially interfere with the goals of the GMA?
A. General:
1. The "above allegations" are, of course, the twelve preceeding Issues stated in the Pre Hearing Order, only some of which have been addressed in this brief; to those issues, Petitioner has presented facts, exhibits, and previous Board decisions which clearly show that, yes, these allegations substantially interfere with the goals of the GMA.
2. As to the un-addressed Issues, the Petitioner relies on fellow petitioners and intervenors to make the case for arriving at the same conclusion.
B. Argument and Authority: Specifics:
1. With respect to ISSUE #13, Petitioner returns to Pg.1183, Case No. 95-3-0039 and notes that Goals 1 and 2, addressed herein, "operate as organizing principles at the county-wide level. Thus, they have not only a procedural dimension, but also direct a tangible and measurable outcome".; i.e., to manage urban growth and reduce sprawl requires certain actions which "direct", guide, or require, a county to deal with these issues in such a manner as to create a "tangible and measurable", if not specific result. The other goals, by and large, suggest "how" that result can be achieved. Consequently, an allegation that elements of the CP fail to comply with Goals 1 and 2 of the GMA should be able to show a "tangible and measureable outcome" contrary to that which the GMA directs.
2. The OMs show vast areas of undeveloped rural land in parcels of 10, 20, and 40 acres with allowable densities of 1 du/2 acres and 1du/5 acres. The "tangible and measureable outcome" of development of land at these densities will be development which the Board has consistently held to be either sprawl, non-rural growth, or urban growth.
3. The retention of the 1979 Density Boundaries is a recipe for low density, sprawling development which will ultimately destroy the rural character and scenic beauty of San Juan County. Diminishing these attributes will negatively impact its desirability as both a tourist destination and a retirement haven, the twin pillars of its economy.
4. With respect to ISSUE #1, CP Section 2.1.C substantially interferes with the goals of the GMA by failing to limit urban growth to UGAs and failing to prevent rural sprawl.
5. With respect to ISSUE #2, the use of initial densities of 2 dwelling units (du) per acre and/or 1 du per 2 acres outside of but adjacent to the Friday Harbor urban growth area fails to comply with the GMA by failing to limit urban growth to UGAs, failing to prevent rural sprawl, and failing to plan for essential services.
6. With respect to ISSUE #3, the provisions of the CP Section 2.2.A (12) allowing 1 guest house for each single family residence fail to comply with the above provisions of the GMA concerning urban growth and fail to comply with .070(5)(d) requiring rural growth and rural areas as the net effect of this section is the doubling of density in rural areas to above that level which can be construed as "rural", given the underlying density permitted by the Land Use Designations and/or the underlying Density Boundaries as they appear on the Official Maps.
7. With respect to ISSUE #9, the allowable density provisions of the CP and UDC fail to comply with Goal 6 of the GMA because of the failure to restrict growth to appropriate levels and places because a landowner’s legitimate property rights are not protected from the "arbitrary and discriminatory action" of the retention of the 1979 Density Boundaries.
8. With respect to ISSUE #10, the CP is not internally consistent when its Vision Statement describes one thing, its Land Use Designations describe something else, and then a pattern of arbitrary Density Boundaries describe yet a third. Embedded in the LUD’s and the Density Boundaries is a development potential in the rural areas which is rapidly being exploited, much to the detriment of the rural character of the islands, and totally at odds with GMA.
9. With respect to ISSUE #12, the density provisions in designated resource lands do not comply with the GMA in that they allow significantly higher levels of residential development than those essential for conserving the resource.
C. Conclusion:
1. All of the "above allegations", i.e. those Issues stated in the Prehearing Order which are addressed herein, substantially interfere with the goals of the GMA.
2. Due to the fundemental nature of these allegations, to the extent to which they speak to flaws in both the results and the process of GMA planning as it occurred in San Juan County from 1993 until 1998, and because of the widespread and pervaisive inconsistencies resulting therefrom, the Board must make a finding of non-compliance and invalidity for Sections 2.1, 2.2A, 2.3, and 2.4 and the Official Maps of the San Juan County Comprehensive Plan and the Unified Development Code regulations pertaining thereto.
The undersigned petitioner, Fred R. Klein, has read this brief in its entirety and believes its contents to be true.
_____________________________
Fred R. Klein, Petitioner
Date: May 10, 1999
TABLE OF AUTHORITIES
Indexed Documents:
SJC Comprehensive Plan 180000 thru 180183
SJC Unified Development Code 180184 thru 180440
Official Map - District 1 180441
Official Map - District 2 180442
Official Map - District 3 180443
Prosecutor’s Memo 170910
Petitioner’s Exhibits: Page of Brief
A. SJC Comp. Plan, Section 2.1.C Pg. 7
B. Eastsound Subarea Plan,
C. Eastsound Subarea Plan,
D. Portion of Official Map - District 2, Eastsound
E. UDC 4.18.1.
F. SJC Comp Plan, Vision Statement
G. Inconsistency Map - District 1
H. Inconsistency Map - District 2
I. Inconsistency Map - District 3
J. SJC Comp. Plan, Sections 2.3.A, 2.3.B.b, 2.3.B.c,2.3.C.a, 2.3.C.b
K. UDC Table 3.2, Note 15