BEFORE THE WESTERN WASHINGTON GROWTH MANAGEMENT

HEARINGS BOARD

STATE OF WASHINGTON

TOWN OF FRIDAY HARBOR, FRED R. KLEIN,

JOHN M. CAMPBELL, LYNN BAHRYCH, et al.,

and FREDERICK ELLIS, JR.,

Petitioners,

NO.99-2-0010c

v. PETITIONERS BAHRYCH, ET AL., BRIEF

SAN JUAN COUNTY,

Respondent,

and

JOE SYMONS, FRIENDS OF THE SAN JUANS,

and KAREN J. KEY SPECK, ET AL.,

Intervenors.

_______________________________

Petitioners Lynn Bahrych, John Goekler, Miki Brostrom, and Tom Schroeder request invalidation of the portions discussed below of San Juan County's Comprehensive Plan ("CP") and Unified Development Code ("UDC") for failure to comply with RCW 36.70A, the Growth Management Act ("GMA"), RCW 90.58, the Shoreline Management Act ("SMA"), and RCW 43.21C, the State Environmental Policy Act ("SEPA") and for substantially interfering with the goals of the Growth Management Act.

San Juan County began planning under the Growth

Management Act by appointing three Citizen Advisory Committees ("CAC's") to craft a Vision Statement for the county and to review, improve, and update the goals and policies in the existing Comprehensive Plan adopted in l979. The county's Shoreline Master Program, adopted in l976, was also reviewed and brought up to date as part of the GMA planning process. The Board of County Commissioners ("BOCC") appointed a county-wide Steering Committee to consolidate the work of the three CAC's and a county-wide Technical Advisory Committee ("TAC") to implement the goals and policies by drafting a Unified Development Code ("UDC").

The county used a phased SEPA review process for non-project actions, as provided under the GMA. The Draft EIS was published during the summer of 1997, and the Final Supplemental Environmental Impact Statement ("FSEIS") for the SJC Revised Final Comprehensive Plan, Official Maps, and Shoreline Master Program was published on November 12, l997. Public hearings were held on November 17-19, l997, during which the Petitioners offered testimony on the environmental impacts identified in the FSEIS. In the county's FSEIS, the public was assured that "if additional changes are proposed by the Board of County Commissioners with adverse environmental impacts not previously reviewed, additional SEPA evaluations will occur prior to action being taken by the Board of County Commissioners." See FSEIS, Fact Sheet-1.

Despite this assurance, significant changes were made by the BOCC during l998 to the CP and UDC for which no subsequent SEPA evaluations occurred. The Planning Director and the Prosecuting Attorney both advised the BOCC that the CP and UDC were problematic, first because of significant adverse environmental impacts that had not been reviewed (Staff Report of May 11, l998, Index No.171547-171564) and, second, because of inconsistent and inappropriate densities in the rural lands of the county (Prosecuting Attorney Memorandum of March 27, l998, Index No. 170806-170812).

Nonetheless, the BOCC adopted the new CP and UDC on December 16, l998, without further SEPA review and without altering the non-compliant densities. The new CP and UDC became legally effective on December 20, l998.

San Juan County is one of the loveliest, least spoiled, and most popular vacation destinations in the Pacific Northwest. The traditional visual landscape consists of natural shorelines, unbroken ridge lines, dense privately owned forests, and open fields and farms with few visible structures. See aerial photographs in Declaration of Lynn Bahrych, attached as Exhibit C, (index numbers to be provided). The actual land area in the county is the smallest of all 39 counties in Washington, with 59% in non-federal timber lands. Id. at 177. As of l997, over 18% of the total land area was in farmland. San Juan is essentially a rural residential county, with large tracts of resource and other rural lands providing a natural setting and, to a lesser extent, a relatively few livelihoods.

The county's population has grown at a faster rate than that of Washington State, with an increase of 103 percent in the last

ten years. See attached SJC Parks Plan, SJC Profile at 15, Index No. 220126-220134. The population is older than the state average, due to the large percentage of retired residents. As in most communities in scenic locations, the County has a large proportion of non-resident property owners who use their homes for weekends and summer vacations, and eventually for retirement.

In the tourist season, the population increases by approximately 60 to 65 percent. Id. at 17. As the Park Board study states, "The impact of tourism on the population of the San Juan Islands cannot be overstated." Id. In terms of the county's economy, the two "mainstays" are tourism and retirement, with construction, retail trade, and services as main components of a largely seasonal economy. Id. at 18. In 1993, nearly 43% of the personal income in the county is categorized as "property income," which includes rents, as compared to 15% for the state. See attached County Portraits of Washington State at 175, Index No. 220135-220142. The county also has the largest proportion of income and employment derived from the construction industry in the state, and the smallest government division. Id. at 176.

As stated in the Declarations of Lynn Bahrych, Miki Brostrom, and Thomas E. Schroeder, filed in this case on April 15, l999, county residents live on ground water, mostly private wells, with the specter of salt water intrusion haunting those who live on the shoreline. Most residents rely on private septic tanks and drain fields for sewage disposal. In the rural areas, which is nearly all of the county, residents must dig extensive ditches to provide standard utilities to individual houses located at the end of

frequently long driveways. Every house that is constructed in the rural environment must be planned as a self-contained living unit, capable of supporting its residents without the usual urban services provided from outside, often without the benefit of electricity since our heavily forested landscape regularly drops trees across power lines. We have narrow, winding country roads, mostly unpaved. We rely on volunteers for many of the services that people are paid to do on the mainland.

"Rustic" is the word for our rural environment, and "self-sufficient" is the word for our rural residents. The Vision Statement, crafted by citizens from each district in the county, clearly describes a rustic rural environment where the traditional agricultural, maritime, and forestry occupations are supported and preserved.

As a result of these demographic features, there is an unusually high demand for "transient" or temporary housing, whether it is for tourists or visiting family members, such as, adult children and grandchildren. Thus, a housing pattern, unique in Washington State, has grown up over time consisting of second freestanding guest houses built on the same parcel as the primary residence. See Declarations of Tom Schroeder, Tom Owens, and Lynn Bahrych, attached as Exhibits A, B, and C, respectively (index numbers to be provided). As the photographs show, these are generally well built and attractive homes, which are used occasionally by family members or guests. Full-time rental of guest houses has been permitted only if density limits were not exceeded. For example, with 1 du per 5 acres, a 10-acre parcel could accommodate both a primary residence and a rented guest house. Seasonal or vacation rentals had been permitted only with sufficient density and as a regulated commercial use. In general, guest houses are not concentrated in Friday Harbor or in the county's Activity Centers ("ACs"). With less than 15% of the county's population in the only town in the county, 85% of the residents are distributed across the rural landscape. County Portraits of Washington at 173. Since the shorelines and rural areas are where people wish to be on their vacations, guest houses are more common in those areas. Although the number of existing guest houses is not in the record, as an example of this housing pattern, on the peninsula at the end of Neck Point Coves on Shaw Island, seven property owners have a total of five guest houses in addition to their primary residences. See Declaration of Lynn Bahrych, P-1 to P-7 and P-18. Although this is a tiny sample, it is representative of the traditional use of guest houses in rural areas of the county.

What has worked in the past, due to the small residential population and the historically short tourist season, is no longer working today. San Juan County's population is expanding, and so is the tourist season. It now stretches from March to November, when the rain and wind drive most visitors away. SJC Parks Plan, SJC Profile at 18. Even though it tapers off through the winter months, the tourists are always with us.

As more "Microsoft Millionaires" and other wealthy non-residents buy recreational property in the county, "trophy" guest houses are now appearing, especially visible on the shorelines and ridge lines. See Declarations of Lynn Bahrych, Tom Owens, and Tom Schroeder, P-8 to P-24. As these photographs illustrate, urban patterns of housing are beginning to occur in rural pockets due to guest house construction. Instead of addressing this loophole in the county's land use laws, the new CP and UDC exacerbate the problem by permitting commercial use of freestanding guest houses. While a homeowner with a conventional mother-in-law apartment might hesitate to rent to strangers, since the apartment is physically integrated with the primary residence, there are few such constraints with renting a freestanding, separate residence. Instead, the homeowner in SJC has a strong financial incentive to do so during the tourist season, when rents are astronomical and the demand for housing more than doubles.

San Juan County's guest house policy fosters low-density sprawl across the rural landscape by doubling the legal residential density throughout the county. As the SJC Planning Director observed in the Staff Report of May 11, l998 (cited above), at page 6, "By allowing long-term rentals and occupancy of guest houses, the county will be allowing a second living space per residential parcel. This has important consequences for residential density, and could result in significant adverse environmental impacts on a cumulative basis by doubling the density allowable in any area. "

This doubling of density in the rural lands violates the GMA prohibition against creating a new pattern of low-density sprawl. RCW 36.70A.020(2) and 36.70A.070(5)(d). The decisions of this Board, acting under RCW 36.70A.020(2), establish as "rural" a variety of densities with 1 du per 5 acres as the upper limit and a mix of lower densities, such as 1 to 10 and 1 to 20, as an essential component to the rural environment. As this Board has emphasized, counties must adopt a "variegated set of rural densities to comply with RCW 36.70A.070(5)(b)." Daniel Smith et al., v. Lewis County, WWGMHB, #98-2-001C, Final Order (4/5/99). This variety of rural densities should reflect the traditional visual rural landscape and not be limited to unvariegated, county-wide densities. Id.

The Central Board has determined that ten acres is a reasonable maximum density for rural environments and has ruled that any pattern of development allowing smaller parcels is not considered to be "rural." Peninsula Neighborhood Association v. Pierce County, CPSGMHB, #95-3-0071, Final Decision and Order, page 19. The Central Board also ruled that construction of a detached new residential dwelling on a parcel smaller than 10 acres is generally prohibited because it would effectively allow two freestanding dwelling units. "The effect would necessarily be one freestanding dwelling on a lot smaller than 5 acres, which the Board has previously held to constitute urban growth." Id. at 22.

San Juan County's new CP and UDC permit a second freestanding single-family dwelling unit wherever one residence would be allowed, that is, on every existing parcel of land, regardless of size or location. Existing parcel sizes are as low as one-half acre in what was formerly designated as "suburban." The density of the old "suburban" designation, located primarily on the shoreline, has not been changed in the CP. Thus, a second freestanding residence could be built on the County's shoreline in some areas on the equivalent of a one-fourth acre lot.

Other existing densities that do not comply with the GMA requirement of funneling growth to urban centers and preserving rural and resources lands are (1) one unit per acre in all Conservancy lands, which constitute 42% of the county's shorelines; (2) two units per acre in some Rural, Rural Residential, and in all Rural Farm Forest, which is the single largest designation of rural lands; and (3) one unit per five acres for large sections of the county, including all of Shaw Island.

Residential densities of this type are inconsistent with the GMA goals of preserving rural lands and directing new growth into IUGAs or UGAs. C.U.S.T.E.R. v. Whatcom County, WWGMHB, #96-2-0008, at 7. A cascade of negative impacts will result from such densities being permitted in the County's rural lands.

First, public facilities and services will be strained to the breaking point, contrary to GMA goals 1, 2, and 12 and 70A.110 and .070(5)(d). As the Planning Director observed in the Staff Report of May 11, l998, cited above, no provisions have been made in the CP or UDC for public facilities and services adequate to meet the needs of a rural population that could be more than doubled as a result of the new guest house policies and "family" definition. For example, WAC 365-195-070(3) requires that domestic water systems be added for lands outside of UGAs, but no such requirement appears for guest houses in the performance standards in the UDC Section 4.18 and Section 4.19. WAC 365-195-850, concerning impact fees, provides a method of addressing impacts on development activity as part of financing public facilities, but nothing in the new plan addresses this or any other remedy for the inevitable increase in the cost of county infrastructure.

The piecemeal, lot-by-lot nature of the residential development permitted by the county's new plan will make it difficult if not impossible to provide adequate public facilities and services concurrently with development as required by the CP and UDC. The incremental doubling of residential densities by the individual construction or use of second residences on single-family lots will not trigger any corresponding provisions in the UDC requiring additional open space, drainage, streets or roads, potable water, sewage disposal, parks and recreation, schools, ferry service, power service capacity (e.g., both overland and submarine cabling), and telecommunication service. However, the residential occupancy of a second living space on residential parcels will have a large-scale and cumulative effect on neighborhoods, especially through increased traffic and parking conflicts and unanticipated pressures on utilities, water supplies, and sewage disposal systems resulting from two separately-functioning households. Unlike the regulations governing subdivisions, which do address these issues, the regulations governing the construction or use of a guest house do not provide for concurrency. Like non-point pollution, it will all add up.

The CP and UDC should be remanded to address the need for such services as roads, particularly all-weather roads, parking, water systems, storm and sanitary sewer systems, parks, recreation facilities, schools, fire protection, law enforcement, public health, emergency medical care, education, and recreation. RCW 36.70A.030(12)and (13).

In order to accomplish the crucial GMA goals of reducing sprawl, preserving rural lands, and funneling growth into urban areas where public facilities are available, the county must eliminate its liberal guest house policies and "downzone" some of the rural and resource lands. Downzoning is legal and recommended in circumstances such as these even where development rights may be vested. C.U.S.T.E.R. at 15-19.

For the reasons discussed above, open space and recreational space will be lost as well as wildlife habitat due to suburban-style growth in the rural environment, contrary to GMA goal 9. Similarly, the environmental quality of one of the least spoiled and most beautiful areas of the state, including 375 miles of shorelines of statewide significance, will be damaged due to nonpoint pollution from residential uses, thereby lowering the "state's high quality of life," contrary to GMA goal 10.

To achieve the important goal of preserving rural lands, commercial development in those lands must be limited to resource-based uses or neighborhood needs and should be small in scale. Warren Dawes, et al., v. Mason county, WWWGMHB,#96-2-0023, Order Finding Invalidity (1/14/99). Commercial uses that increase population beyond levels appropriate for rural lands should be prohibited. In the Mason County case, the Western Board explained that commercial activities in rural lands must be dependent on a rural location, must be functionally and visually compatible with that location, and must be limited in size and density to preclude future need for urban services.

Contrary to these guidelines, San Juan County's provision for commercial use of a second freestanding, fully occupied single-family residence for each development unit now in existence and the county's increase in the number of legal occupants of each such residence creates growth that is not in any way depend on a rural location. Furthermore, this suburban-style growth will require enhanced public services and facilities. This is precisely the type of growth that should be channeled into Activity Centers, where urban services are available and where additional commercial activity is appropriate. Development rights are extremely valuable in San Juan County. The new CP and UDC create access to a new and valuable commercial and residential development right for nearly every legal parcel of land. The policies and regulations creating this new property interest must be invalidated to avoid legal vesting. Whether or not these rights would be fully used, they will be difficult, if not politically impossible, to take back.

The rural environment, as described in the Vision Statement, will be diminished by interjecting a commercial use into its warp and woof. The policies and regulations that permit this commercial use should be invalidated.

There was no State Environmental Policy Act review of the present policy and implementing regulations for guest house rentals. Although this constitutes a major policy change for the County, which since 1979 has prohibited guest house rentals, the County's SEPA review was not supplemented after November 12, l997. The Board of County Commissioners voted to permit guest house rentals much later in l998. During l997, the Board's policy had been not to permit such rentals, thus the EIS and SEIS were prepared without analysis of the impacts of commercial uses of guest houses throughout the county.

As a result, the new policy of allowing guest house rentals was adopted without any analysis of actual supply, of actual need, or of actual cost. There was no professional supply and demand analysis. There was no cost analysis for providing public facilities and services, nor was this apparently even considered. In addition to failing to analyze the infrastructure needs and costs of this policy change, the county did not analyze alternatives to it based on OFM population projections. The Western Board has required such analysis for compliance with GMA. See C.U.S.T.E.R. at 13-19.

The required procedure is for the "responsible official" to determine whether a proposal, such as rental of guest houses, is likely to have a probable significant adverse environmental impact. See, e.g., Anderson v. Pierce County, 86 Wn.App. 290, 301, 936 P.2d 432 (1997). Unless a DNS has been issued by the responsible official, in this case the Planning Director, the BOCC is required by state law to prepare an EIS (or MEIS) before taking may major action with a probable significant and adverse environmental impact. RCW 43.21C.030(2)(c).031; Leavitt v. Jefferson County, 74 Wn.App.668, 679, 875 P.2d 681 (1994). No DNS was issued for these policy changes.

As mentioned above, in response to the proposed change in the guest house rental policy, San Juan County's Planning Director advised the County that the environmental impacts of this policy change were likely to be negative. However, the BOCC elected to proceed without the benefit of an analysis of those probable impacts. The public has never had an opportunity to comment on an SEIS addressing this issue, as required by WAC 197-11-560-620, because there never was one.

If an SEIS has been prepared, the citizens would presumably have essential information that is not now in the record. We would know, among other things, (1) the number of detached guest houses now in existence, (2) the number of detached guest houses that are legally rented, both annually and seasonally as vacation rentals, (3) an official estimate of the number of guest houses now rented illegally. Throughout the public hearings, testimony was based on anecdote, rumor, and personal experience. The essential facts are not in the record. Where, as in this case, no environmental review is available to the public, the adoption of a legislative proposal is void and SEPA review must be undertaken. North Cascades Audubon Society v. Whatcom county, WWGMHB, #94-2-0001, Final Order at 3. D. Prehearing Order Issue 5: Does the change in CP definition of "family" from a maximum of 5 persons to a maximum of 8 persons allow urban growth in rural areas in violation of the GMA?

Residential density has two components: the number of structures and the number of residents. The average number of residents in a household in San Juan County is 2.25. In the UDC, Section 2, page 7, "family" is now defined as "Individuals related by genetics, adoption, or marriage or a group of not more than eight unrelated individuals who share a single dwelling unit." A "dwelling unit" is then defined as "a main residence and a guest house" even if they are physically separate and not in fact a "unit." This means, for example, that a homeowner could rent a guest house with four bedrooms during the tourist season to four unrelated couples for a weekend or for an entire summer without any environmental review. The county would view them all as one "family." Since the average household size in San Juan County is 2.25 persons, this far exceeds the reasonable expectations of most island residents.

To expand the definition of a single "family" to include up to eight unrelated persons is to introduce an institutional level of use in a rural residential setting. For this county, with approximately 12,000 full-time residents, group living situations of up to eight unrelated persons will create pockets of density that are unexpected and for which additional services and infrastructure are not available, particularly during the tourist season.

This, of course, suits those in the real estate industry who wish to provide vacation rentals for an ever-increasing number of tourists, most of whom wish to stay in the rural areas, not in Friday Harbor or other ACs. This increase in unrelated persons allowed under the umbrella of "family" makes commercial and institutional uses possible in residential areas without any environmental review. Great deference is paid to single-family uses under the SMA, so most residential activities are exempted from shoreline permits along the county's shorelines. This means that the new enlargement of family can occur on shorelines of statewide significance without any meaningful environmental assessment.

This across-the-board increase in residential density in rural as well as activity centers violates RCW 36.70A.020 (1),(2), and (12) and RCW 36.70A.110(1). The discussion of GMA goals 1,2, and 12, and of .110(1) in section A above is hereby incorporated by reference.

There was no SEPA review of this change. It was made by the Board of County Commissioners many months after the Final Supplemental Impact Statement was prepared and published. This change in definition was not considered nor debated during the GMA planning process by the CAC's, the Steering Committee, or the TAC. No SEPA review has ever been made available to the public on this issue.

Since, as discussed elsewhere in this brief, this is a significant change for San Juan County, given its small, rural population, this definition should be invalidated. The county must review the impacts of such an increase in what is considered to be a single "family" and publish this analysis for its citizens so that an intelligent, informed debate can occur before such an important legislative change is made.

The absence of SEPA review violated the GMA, as discussed in section C above, which is hereby incorporated by reference.

The adoption by the BOCC of the CP changes that increase residential density in the face of overwhelming public demand for density reduction in rural areas constitutes a violation of GMA Planning Goal 11, RCW 36.70A.020(11)(Citizen Participation and Coordination). The GMA planning process is intended to be a "bottom up" effort, "involving early and continuous public participation." WAC 365-195-010(3). Achen, at al., v. Clark county, WWGMHB, #95-2-0067, Compliance Order at 10.

The single issue that elicited the largest public response during the GMA planning process was density or residential "build-out." Public comments, including a petition with over a thousand signatures, consistently reflected the county-wide desire to avoid population build-out at current densities and to concentrate future growth in designated activity centers. The CACs and the Steering Committee voted for density reduction through regulation and voluntary incentives, and even though the BOCC removed the provision for density reduction through regulation from the new Plan, the goal of density reduction was still to be pursued by means of voluntary incentives. At no time in the GMA planning process did the public support a legislative increase in overall density.

Despite the absence of public support, this definition was altered by the BOCC, raising the number to eight. The precise environmental impacts of this change of definition are, of course, unknown to the citizens of the county since this was never the subject of a SEPA review.

All of the public comment and all of the SEPA analysis was made on the premise that residential densities were unchanged from the l979 comprehensive plan. In fact, the Plan and UDC were passed with the express legislative findings by both the Planning Commission and the BOCC that "Residential densities in the rural land-use designations are unchanged from those established in the adoption of the 1979 Comprehensive Land Use Plan and Regulations and the 1976 adoption of the Shoreline Master Program. . . Various means to reduce density and/or reduce build-out potential were analyzed in the draft environmental and economic impact statement (DEEIS) and in the supplemental EIS. The Land Use Element of the CP expresses the intention of the county to develop a voluntary transfer of development rights program or other density reduction strategies to address this issue." Ord. No. 2, l998, Finding 9.

Since the BOCC chose to increase densities, the public should have had the opportunity to participate in that major policy decision.

As discussed above, one of the primary planning goals of GMA is to prevent sprawl in the rural environment. This goal is particularly important where shorelines of state-wide significance occur outside of urban growth areas. The SMA mandates preservation of such shorelines in their natural condition wherever possible. RCW 90.58.020(2). The goals and policies of the county's SMP mirrors that mandate.

Four rural shoreline designations now carry excessive densities appropriate only for urban development. These densities should be reduced. In the Conservancy designation, which is the largest shoreline designation, representing 42% of the county's shorelines, the density allowed is one residential unit per acre. See Exhibit D to Bahrych, et al., Petition For Review, Shoreline Density Analysis. This would amount to two units per acre under the current Plan and UDC. This is not consistent with an environmentally sensitive designation, nor in fact with a rural environment. In the Rural Environment and

in the Rural Residential Environments on the shoreline, two residential units are allowed per acre. With the new provisions permitting a second residence to be constructed in these designations, the densities could be four units per acre. In the Rural Farm Forest Environment, the density of one unit per two acres is also excessive. Again, under the current Plan and UDC, it could be increased to two units per two acres, or one unit per acre.

The new CP and UDC include one provision intended to mitigate the visual impact of additional single-family residences on the shorelines. This is UDC Section 5.5.18(e)(6), which states that the second single-family residence on a single parcel must be located so that it "maintains the single family appearance." This purely subjective notion is not supported by any performance standards in the UDC. No other attempt has been made in the Plan or the UDC to deal with the multitude of other environmental impacts that inevitably result from increased residential development.

The allowed densities of each of these four shoreline designations should be reduced to conform to the goals of the SMA and to be consistent with the goals and policies of the county's SMP.

Private property rights of landowners who reasonably expected a rural atmosphere in lands designated as rural will be violated if the residential density of the county is doubled. As the Eastern Washington Growth Management Hearings Board ruled in Woodsmansee v. Ferry County, EWGMHB, #95-1-0010, a failure to restrict development to appropriate levels can be a violation of property rights of adjacent property owners: "In fact, not to restrict use is, in our opinion, often a violation of property rights of adjacent property owners who have an equal right to enjoy their property without unsuitable development intrusion. Clearly, the GMA requires restrictions on development."

Private landowners will also suffer an economic impact from iincreased density. As the Western Board has observed, "uncoordinated development of rural areas often involves greater economic burdens to local taxpayers than efficient urban areas. " Achen, et al., v. Clark County, WWGMHB, #95-2-0067, Order on Reconsideration (11/20/96). The doubling of residential density will increase infrastructure costs incrementally and cumulatively, raising the cost of living in the county for all taxpayers. Such uncoordinated development would substantially interfere with "the goals of efficient use of taxpayer dollars, adequate provisions for infrastructure, compact urbanization, and protection of resource lands." Id. at 5.

Added to the mix of impositions on private property owners is the fact that the full-time residential population provides the volunteer fire departments, the volunteer emergency medical services, the volunteer-operated libraries and museums, and many other services that both residents and visitors depend on for safety and recreation. The County struggles year-round to met its current infrastructure needs for adequate water, adequate and safe sewage disposal, garbage disposal, adequate (affordable) medical services, and adequate transportation both within islands and to the mainland. The county newspapers continuously address these seemingly insoluble problems. There simply are not enough volunteers or enough tax money to go around. The County's frail infrastructure is stressed beyond its limits at the height of the tourist season.

All of this diminishes the quality of the lives of full-time residents. Or, said otherwise, it diminishes the quiet enjoyment of their private property. The prospect of a commercial hospitality business next door or of a seasonal increase in the number of unrelated persons renting next door will diminish the aesthetic, environmental, and economic value of private property owners throughout the county. As shown by the Declarations of Lynn Bahrych, Miki Brostrom, and Thomas E. Schroeder, filed to establish standing under SEPA, these policy changes will impair these values in their neighborhoods.

The GMA requires that locally developed plans be consistent internally. WAC 365-195-010(4); WAC 365-195-070(7). Each plan must also be consistent with land use maps. WAC 365-195-500. The GMA further requires that development regulations adopted to implement the comprehensive plan be consistent with that plan. WAC 365-195-010(5).

The Comprehensive Plan is internally inconsistent in at least seven areas due to the new guest house and family expansion provisions. First, in CP Section 2.2.A, General Goal 3 states that high density residential development is to be directed into ACs to prevent sprawl and to relieve growth pressure in the surrounding rural areas. No regulations in the UDC implement this goal. Instead, the allowance of a second fully occupied residence on nearly every rural parcel in the county, and the expansion by 60% of the number of unrelated individuals who can occupy them, will direct growth to surrounding rural areas instead of to ACs.

Second, in the Shoreline Element of the CP, Section 3.3.C., the Rural Residential Environment is supposed to accommodate "considerable medium density" residential development, with a maximum density of two residences per acre. However, the new guest house provisions make it more difficult to obtain a permit for a fully occupied or rented guest house in Rural Residential by requiring a conditional use permit ("CUP"), which is not required in other rural designations. The maximum density set forth in this section could also be exceeded if CUP's were to be issued for half-acre parcels, thus allowing four residences per acre.

Third, CP Sections 3.3.D., 3.3.E, and 3.3.F. establish maximum residential densities which would all be exceeded by the construction of a second single-family residence on a parcel without a sufficient density allowance. Furthermore, the UDC specifically prohibits anything other than one single-family residence on a parcel in the Natural designation and specifically requires that the single residence be for the property owner's use. UDC Section 3.3.F.6. However, the new guest house and expanded family provisions are inconsistent with this because they not only

allow a second residence but they also allow a non-owner to occupy either residence.

Fourth, CP Section 3.5.D.2 states a policy of prohibiting non-water-oriented commercial uses in the shoreline. However, the new guest house and expanded family provisions permit a commercial use in the shoreline that is not water-oriented.

Fifth, CP Section 3.5.M.13 states the policy that the maximum allowable density on the Official Maps will not be exceeded by the number of residential units within the shoreline area on a parcel to be divided or developed with multi-family units. Adding a second fully occupied residence to a shoreline parcel without sufficient density is inconsistent with this policy.

Sixth, CP Section 6.5.B.1, establishing policies for driveways, states that approaches to county roads should be held to a minimum to improve traffic safety and minimize maintenance expenses. In the Transportation Element of the UDC, there are no regulations accommodating the additional traffic associated with a second fully occupied residence and an expanded number of unrelated occupants, each one potentially with a vehicle.

Seventh, in CP Section 7, Capital Facilities, the level of service analysis is based on current residential densities. The growth projected for the six-year period from 1996 to 2001 is based on current build-out estimates of one residence per parcel and the previous definition of "family" which includes a maximum of five unrelated persons. A doubling of residential density has not been factored in to the Capital Facilities element of the CP, nor factored in to the regulations that implement it. Thus, all of the level of service provisions are inconsistent with the CP and UDC as adopted. This does not comply with GMA requirements concerning capital facilities. See Aagaard. et al., v. City of Bothell, CPSGMHB,#94-3-0011, at 8.

One of GMA's planning goals is to ensure that public facilities and services necessary to support development shall be available and adequate to serve the development without decreasing current service levels. RCW 36.70A.020(12). Concurrency is specifically required under WAC 365-195-010(6), which states that development and the provision of public facilities and services

needed to support development should occur concurrently. Concurrency is also a component of the internal consistency required of each GMA plan. WAC 365-195-500.

The UDC also contains internal inconsistencies and inconsistencies with the CP as a result of the guest house and family revisions. In UDC Section 2, a "guest house" is defined as a residential unit designed for irregular residential occupancy by family members, guests, and persons providing health care or property maintenance for the owner. However, the new guest house policy contemplates new construction that is designed specifically for full-time commercial use.

In UDC Section 3, Land Uses, the new guest house provisions are inconsistent with the regulations in the residential categories, specifically Tables 3.1 - 3.2, governing Single-Family Residences, Two-Family or Duplexes, and Multi-Family Residences. With the Single-Family category now encompassing a second free-standing or attached residence, it becomes the functional equivalent of a duplex. Where a duplex or two-family residence was allowed, now a multi-family residence could be the unintended result. In other words, the tables will not work with the current guest house and expanded family provisions in place.

In Section 3.2.4.a., the UDC clearly states that the maximum allowable densities are shown on the Official Maps. The Maps are inconsistent with the new densities created by the guest house and expanded family provisions.

In the Shoreline Master Program, UDC Section 5.5.7, commercial developments are regulated within the shoreline. Both the general regulations and the regulations by environment are inconsistent with the new provisions which allow some commercial uses of guest houses without either a CUP or a substantial development permit. In the Rural designation on the shoreline, for example, a commercial development is allowed only by CUP. However, a rented guest house, which is defined in UDC Section 3, Tables 3.1-3.1 and Section 4.19.3 as a commercial use, could apparently be established in some areas of the shoreline without a CUP.

An even greater inconsistency is created by UDC 5.5.7.b.(3) and (5), which prohibit commercial development in Rural Residential, Rural Farm Forest, and Natural. Similarly UDC 5.5.18.b.(11), Residential Development, specifically states that although construction of a single-family residence for the use of the owner is exempt from substantial development permit requirements, any other single-family residential construction is subject to shoreline permit requirements. This directly contradicts the new guest house provisions which permit a second single-family residence to be constructed without a shoreline permit in most designations. However, since permit exemptions are to be construed narrowly in the shoreline, the new guest house provisions should not survive close scrutiny. WAC 173-27-040(1)(a). The CP and the Official Maps are also inconsistent in

terms of densities assigned to particular designations. The GMA requires that each comprehensive plan be internally consistent and that all elements shall be consistent with the future land use map. See WAC 365-195-500. The CP states, in Section 2.2.A.7, that "Residential densities specified on the Official Maps indicate maximum allowable density for each parcel based on acres per residential unit for rural and Resource Lands." However, as the Analysis of Official Maps prepared by the San Juan County Prosecuting Attorney shows, there are numerous inconsistencies between the Plan and the Official Maps. Index No. 170806-170812. For example, the Plan requires that Forest Resource lands be 20 acres or more, while the Official Maps retain as designated Forest Resource lands parcels of only two acres, five acres, and ten acres. See Exhibit B to Bahrych, et al., Petition for Review, (excerpt from Memorandum of Prosecuting Attorney to BOCC, March 27, l998).

The primary if not the only provisions for affordable housing in the Plan are the policies allowing rental of guest houses and enlarging the concept of family. Since the new Plan permits short term rental, that is, for periods of less than 30 days, and makes no provision for rent control or to otherwise protect tenants from expensive vacation rental rates, the result of guest house rentals is likely to be more high-end property available for vacation rental without actually addressing affordable housing. The GMA specifically warns against such an approach, stating that an "effort should be made to avoid escalation of costs which will defeat the achievement of the act's housing aims." WAC 365-195-070(6).

The county's new CP and UDC permit new construction of a second detached structure of up to 2,000 square feet in size (if a garage is included). Custom construction of single-family residences in rural areas of San Juan County is not, by any reasonable measure, "affordable housing" for low-income people. As the SJC Planning Department observed in its Staff Report of May 11, l998: "There is no authority in the Plan or UDC to ensure that "affordable" units are produced, or to ensure that rentals are offered at affordable rates; in fact, existing experience is that short-term rentals in the summer season can be quite pricey. Summer season rentals also present difficulties for people who need to find year-round affordable housing." Index No. 171547-171564. The new guest house and expanded family policies will provide an economic incentive for people to build a second home on their property as a speculative commercial enterprise. As the CP and UDC are currently written, the increase in number of renters permitted will encourage property owners to invest in new construction of up to 2,000 square feet by renting during the summer season, which is extremely lucrative, especially on the shoreline.

Instead of liberalizing guest house uses, the county must "infill" in its Activity Centers, where affordable housing is still practical. See e.g., Eldridge v. City of Port Townsend, WWGMHB,#96-2-0029 at 3. The Western Board has defined "infilling" as the intensification of density under GMA within a constrained area. The county has made no attempt to infill. No policies nor any regulations require that ACs absorb additional density. This lack of intensification fails to comply with the Act.

Instead, the county's new permissive housing policies in the rural areas will encourage widespread inefficient suburban style development outside of Activity Centers. Only by allocating growth to the ACs will a variety of affordable housing be possible. It is simply too expensive to build low-cost or moderate cost housing in the county's rural lands where each residence must have its own well, its own septic system and drainfield, its own driveway, and its own extensive utility lines. Until growth is channeled to the ACs, the affordable housing provisions in the CP and UDC are merely rhetorical flourishes.

The Growth Management Act mandates that the OFM projected 20-year population be accommodated by concentrating development in urban centers and by reducing sprawl in rural lands. AAGAARD at 4. San Juan County's new CP and UDC make no attempt to do this. The projected population increase and the projected residential build-out have been left to go precisely where they have been going for more than twenty years--outward and across the rural environment. Because the density allowances have not been designed to meet the GMA goals, the CP and the UDC substantially interfere with those goals.

Although a second freestanding single-family residence was permitted under the old comprehensive plan in San Juan County, under the GMA and the SMA, this residential use should no longer be allowed as an exempt "appurtenance." The definition of "appurtenance" in the UDC must be invalidated and remanded to the County for revision so that it includes only true appurtenances, such as a garage or deck. A second fully occupied single-family residence is not by any measure an "appurtenance" to a single-family residence. It is a single-family residence.

Neither the GMA nor the SMA permits a second freestanding fully functional single-family residence wherever one would be permitted without addressing the impacts and without adding it to the total density calculation.

The sections of the CP and UDC addressing density should be invalidated and remanded so that the county may "downzone" in rural and resource lands and "upzone" in Activity Centers.

More specifically, the Petitioners request:

I. That Section 5.2.7 of the UDC be invalidated and remanded to delete the reference to "one guest house" as a "normal appurtenance" to a single-family residence and to exclude a guest house as a normal appurtenance in all other respects and that all related goals, policies, and regulations be modified accordingly;

II. That the definition of "family" and "dwelling unit" in Section 2 of the UDC be invalidated and remanded to amend them to include five unrelated persons instead of eight and that all related goals, policies, and regulations be modified accordingly; III. That the densities established in Sections 3.3.C, 3.3.D, 3.3.E, and 3.3.F of the Shoreline Master Program in the Plan be invalidated, along with the implementing regulations in the UDC in Section 5, and remanded for amendment to reflect the GMA goal of preventing sprawl and the SMA goal of preserving the natural shorelines of state-wide significance; and

IV. That the provisions for guest house rental in the Housing Element of the Plan be invalidated and remanded for consideration of new policies and regulations providing for attached ADU's in specific designations in order to direct growth appropriately as well as to provide affordable housing and that all aspect of ADU's, guest house use, and any proposed changes to the definition of "family" be reviewed as required under SEPA.

DATED this 9th day of May, l999.

____________________________

Lynn Bahrych, Representative for

Petitioners Bahrych, Geokler, Brostrom,

and Schroeder

WSBA # 15417

Tel(360)468-2396

FAX (360) 468-3196

TABLE OF CONTENTS

PAGE

1 I. Brief Chronology of San Juan County's Comprehensive Plan and Unified Development Code

3 II. Overview of San Juan County

7 III. Discussion of Issues Set Forth in Petition For Review

7 A. Prehearing Order Issue 3: Do the provisions of Unified Development Code (UDC) 2.2.A(12) allowing one guest house for each single family residence fail to comply with the above provisions [.020(1), .020(2), .020(12), and .110] 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)?

11 B. Prehearing Order Issue 4: Do the provisions of UDC 4.18.9 and/or 4.19.3 allowing short-term rental of guest houses allow commercial activity in rural areas in a manner that fails to comply with the GMA?

13 C. Prehearing Order Issue 15: Were the provisions allowing rental of one guest house per single family residence made without adequate State Environmental Policy Act review?

14 D. Prehearing Order Issue 5: Does the change in CP definition of "family" from a maximum of 5 persons to a maximum of 8 persons allow urban growth in rural areas in violation of the GMA?

16 E. Prehearing Order Issue 6: Was the change in definition of "family" made without adequate State Environmental Policy Act review?

17 F. Prehearing Order Issue 7: Did the change in the definition of "family" fail to comply with the public participation provisions of the GMA?

18 G. Prehearing Order Issue 8: Do the allowable density provisions of the CP and UDC fail to comply with the Shoreline Management Act and/or Shoreline Master Program?

20 H. Prehearing Order 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?

22 I. Prehearing Order Issue 10: Is the CP internally consistent and/or consistent with the adopted DRS?

27 J. Prehearing Order Issue 11: Do the CP and/or DRS fail to comply with the affordable housing provisions of the GMA because of:

a. The allowable density provisions;

b. A failure to comply with .070(2) and/or WAC 365-195-310; and/or

c. Implementation of CP 5.2.A and B?

29 K. Prehearing Order Issue 13: Do any of the above allegations substantially interfere with the goals of the GMA?

30 IV. Requests for Relief

LIST OF AUTHORITIES

1. Daniel Smith et al., v. Lewis County, WWGMHB, #98-2-001C, Final Order (4/5/99).

2. Peninsula Neighborhood Association v. Pierce County, CPSGMHB, #95-3-0071, Final Decision and Order.

4. Warren Dawes, et al., v. Mason county, WWWGMHB,#96-2-0023, Order Finding Invalidity (1/14/99).

5. Anderson v. Pierce County, 86 Wn.App. 290, 301, 936 P.2d 432 (1997).

6. Leavitt v. Jefferson County, 74 Wn.App.668, 679, 875 P.2d 681 (1994).

7. North Cascades Audubon Society v. Whatcom county, WWGMHB, #94- 2-0001, Final Order at 3.

8. Achen, at al., v. Clark county, WWGMHB, #95-2-0067, Compliance Order.

9. Achen, et al., v. Clark County, WWGMHB, #95-2-0067, Order on Reconsideration (11/20/96).

10. Woodsmansee v. Ferry County, EWGMHB, #95-1-0010.

12. Eldridge v. City of Port Townsend, WWGMHB,#96-2-0029.