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., REPLY 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 Thomas E. Schroeder reply to the opposition briefs of San Juan County and the Speck Intervenors as follows.

In the 1993 Vision Statement crafted by the citizens of San Juan County, we envisioned ourselves in the decades to come as a rural community with sustainable year-round employment in a natural environment that both provides aesthetic values and supports traditional island occupations, such as farming and forestry. When we look into the glass held up to us by the county and Speck, we see our future as a homogenized Vacationland, where tourism is the driving force and where small-scale farming, forestry, and the remaining undisturbed tranquility of our natural environment have been abandoned for the illusive tourist dollar. This distorted "Through the Looking Glass" vision is antithetical to the vision that the county citizens worked toward during the six years of GMA planning. It is also antithetical to the primary goals of the GMA.

It is undisputed that tourism is a powerful force in San Juan County's economy. As discussed in the brief of the Friends of the San Juans, the logical extension of a tourist economy is "Aspenization." It is also undisputed that our county is growing fast, with residential build-out in our rural environment being the primary growth factor.

However, the citizens of San Juan County decided to resist Aspenization. We chose not to embrace the spectre of sprawl--as the county appears to do in its brief. Instead, we elected to plan under the GMA to manage growth in order to prevent sprawl and the loss of our present rural quality of life. By contrast, the county's position is essentially, "Don't fight it, join it."

The citizens involved in the GMA planning process, including the Petitioners, Intervenors Friends of the San Juans and Joe Symons, and Amicus Maile Johnson, tried in every way that they could to induce the county to tackle the tough density issue. In citizen petitions and letters and in their participation on the various planning committees, the Petitioners and hundreds of others requested that rural densities be reduced and that growth be channeled into "urban" areas. See e.g., SJC Final SEIS, Comments on Draft SEIS, attached as Exhibit A (#SJC 150300). Unfortunately, they were unable to motivate the county to comply with the central mandate of GMA to actually manage growth.

It is an undisputed fact that the entire "density issue" was kept off the planning table even though the issue of density consistently elicited the largest public response. See Exhibit A. It was kept off the table despite the Planning Department's conclusion in the Final SEIS that population build-out at current densities "is an issue fundamental to the long-term effectiveness of the proposed action, the adoption and implementation of the Comprehensive Plan and Unified Development Code." Id.

The FEIS records the citizens' efforts throughout the planning process to address density. See Exhibit A. Neither the citizens nor the Planning Department could budge the BOCC. As the county explains, "it was clear that focusing on density would be to invite a repeat of the deep animosities and divisions that emerged from the density discussions of l979." SJC Brief at 22, lines 15-16.

To avoid political "animosities," San Juan County's current CP and UDC "go with the flow" which is a flow of development into the rural and resource lands. No effort is made to buck this current. On the contrary, in the proverbial "eleventh hour" the county provided a new means of navigating downstream: vacation or full-time rental of a second free-standing residence on almost every legal parcel and every potential parcel.

The county's decision to double residential densities across the landscape was not made to accommodate the OFM projected growth. We already suffer from a huge excess in build-out capacity, as demonstrated in the briefs of Intervenor Joe Symons and Petitioner Fred Klein. We have a projected population of 20,442 within the GMA planning period. The county's Buildout Analysis does not include the guest house policy which doubles the residential densities. Even without the doubling of density, the county's flawed build-out is over twice the OFM projection of 19,168 by 2015. See Exhibit B, CP Appendix I, pp. 3-18 (#94862).

Since the county's best guess is that 85% of its population lives in rural and resource lands, and since no regulations require a change in the historic development patterns, 85% of this increase can be expected to occur in the rural and resource lands.

What the Petitioners are requesting instead of creeping Aspenization is a combination of increased density in the UGA and in Activity Centers and decreased density in the rural and resource lands. It is not a difficult concept. It just requires political will power.

The issues before this Board are basically questions of law. The determinative facts are not in dispute. The parties interpret them differently, but no one is arguing about what did or did not happen. Thus, despite the county's complaints about the amount of evidence before the Board, it is not necessary to weave together a great mass of evidence from the record to show that SJC's Plan and UDC substantially interfere with the GMA.

A. Issues 6 and 15: The policies of allowing guest house rentals and of enlarging the concept of "single family" were not formally or adequately reviewed as required by SEPA; thus these portions of the CP and UDC must be remanded for SEPA review.

Chronology of SEPA Review

A chronology of the process of environmental review reveals the absence of SEPA review of the current guest house rental and "family" policies.

1993 BOCC forms CACs

Dec. 1993 BOCC endorses CACs Vision Statement

June l994 CACs produce Preliminary Draft Plan

* No guest house rentals

* No discussion of and no change in "family"

Feb. l995 DEEIS

* No review of guest house rentals

* No review of "family" definition

July 1995 TAC begins drafting UDC

* No guest house rentals

* No change in "family"

Oct. l995 Steering Committee's Final Draft Comprehensive Plan

* No guest house rentals

* No discussion of and no change in "family"

June 1996 Shoreline Element with SEIS

* No guest house rentals

* No change in "family"

July 1996 Draft of UDC from TAC

* No guest house rentals

* No change in "family"

Oct. 1996 Final EIS on Final Draft CP & Shoreline Element

*Analyzes four land use alternatives

*Study items requested by CACs

* No review of guest house rentals

* No review of or change in "family"

Dec. 31, l996 BOCC adopts Final CP, Ord. 20-1996

* restricted allowance of guest house rentals

(not to exceed 10%)

* No change in "family"

Feb. 1997 TAC requested to revise UDC

* No guest house rentals

* No change in "family"

Spring 1997 BOCC repeals Ord. No. 20-1996

Sept. l997 TAC finishes UDC

* No guest house rentals

* No change in "family"

Oct. 1, l997 Draft SEIS for Final CP; publication of Draft UDC

* Amnesty for illegally rented guest houses

(otherwise no density exemption for rentals)

* No change in "family"

Nov. l997 Final SEIS for Final CP and SMP

* Reviews amnesty for illegal guest house rental

(otherwise no density exemption for rentals)

* No change in "family"

May 6, l998 BOCC publishes its Final CP and UDC

* Density exemption for all guest house rentals

* Definition of "family" changed to omit limit on

unrelated persons

May 11, l998 Planning Department Staff Report

* Warns of adverse impacts of guest house and

family changes

June 2, l998 Public Hearing on BOCC Changes to CP and UDC

Dec. 20 l998 BOCC adopts current CP and UDC

* Density exemption for all guest house rentals

* Definition of "family" changed to 8 unrelated

(Dates are taken from Ord.2-1998 #171844.)

As this chronology shows, the formal EIS and SEIS were prepared before the county changed its guest house and family policies. However, consideration of environmental information must be completed before an agency commits to a particular course of action. WAC 197-11-055(2)(c). WAC 197-11-070 provides further that "Until the responsible official (the SJC Planning Director) issues a final determination of nonsignificance or final environmental impact statement, no action concerning the proposal shall be taken by a governmental agency that would: (a) Have an adverse environmental impact; or (b) Limit the choice of reasonable alternatives." These changes occurred in June of l998, well after the environmental review process was completed. The Washington Supreme Court has held that when no environmental review takes place prior to the adoption of a legislative proposal, the ordinance is void and the entire process must begin at the point where the SEPA review was required. Lassila v. Wenatchee, 89 Wn.2d 804, 817 (1978).

The Planning Director warned the county that doubling its residential density by permitting guest house rentals would have adverse environmental impacts, but the county did not choose to study those impacts or to mitigate them. Specifically, the county was warned that "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." Staff Report to BOCC, May 11, l998, at 6 (#171552), attached as Exhibit C.

The Staff Report goes on to list the logical consequences in a rural environment of doubling residential density, such as, increased demands on water supplies and sewage disposal systems, more rapid exhaustion of the groundwater and of community water systems and community drainfields, increase in capital costs of small community water systems, and increased traffic and parking conflicts. These issues are flagged but not studied. There is no indication that the Report was made or intended as a supplemental EIS.

The county is unable to show a formal environmental analysis of its current guest house and family policies because there is none. The Staff Report of May 11, l998, is not a supplemental EIS, nor does the county argue that it is. As this Board has ruled, an EIS must be supplemented or revised if the plan it analyzes is changed, as required by WAC 197-11-408(5). Dawes v. Mason County, No. 22540-9-II, Division Two, Slip Op., March 5, l999, at 11-12. In the Dawes case, as in our appeal, the county planner had called out the probable adverse environmental impacts, but the county chose not to conduct a SEPA review. Similarly, in Whatcom Environmental Council v. Whatcom County, WWGMHB #95-2-0071, FDO at 7, a county failed to comply with SEPA in the face of repeated information from its own staff that the proposed action would have significant adverse environmental impacts. The Board found that where the record of county staff and other agency recommendations made it "overwhelmingly clear that significant adverse environmental impacts would result," the county was out of compliance with SEPA. Id.

The same conclusion can be drawn in the present case. The county staff has been unable to convince the county that doubling its residential density will have significant environmental impacts that must be addressed. The county staff's position was reinforced by the Washington department of fish and wildlife and by CTED, which contrary to the implications in the county's Brief, did not support the county's new guest house policies. CTED's serious concerns were stated in its August 13, l998, letter to the BOCC:

"Allowing a second living unit for each residential parcel could double the density permitted in any area, and it could result in significant adverse environmental impacts. If the County wants to allow accessory dwelling units (ADU), comprehensive plan policies and development regulations need to be strengthened to make sure ADUs are not sprawl inducing."

(#172380-172384 and 172378-172379, attached as Exhibit D.).

The county's chief defense is that several lines of text in the EIS and SEIS concerning a different guest house policy satisfy the mandates of SEPA. These, along with the related CP and UDC text, are attached as Exhibit E (#150034ff). However, the current policies which exempt guest houses from county density limits and which increase the number of unrelated occupants of single-family residences from 5 to 8 have never been addressed in an EIS.

During the lengthy CAC and Steering Committee process, the decision was made by the citizens to maintain the status quo, that is, to prohibit guest house rentals. The reasons for this are fairly well summarized in this excerpt from one of the letters submitted by a prominent realtor in December of l997:

"I am aware that the rental of guest houses is illegal and I have always represented that to my clients. I am not in favor of effectively doubling the density. I am very torn about how to create low income housing, I do not like seeing apartments go up, but I don't want to see people manipulate a possible "rental of guest house" allowance such that someone buys an inexpensive lot and builds effectively two houses, thereby doubling the effective density of our current zoning. . . . I think the over all answer is to leave it the way it is now."

(# SJC 161821, attached as Exhibit F).

Thus, as indicated above, the UDC that was analyzed in the Final EIS implemented the Steering Committee policies and thus contained no guest house rental regulations. For a brief interlude at the end of l996, the BOCC approved restricted guest house rentals, but these were not to exceed 10%. See Exhibit E (#150034, 150289-90). This concept was superficially discussed in the SEIS because no one knew how many guest houses existed or the number of illegal rentals. In the redraft of the CP and UDC, following the repeal of the December 31, l996 version, the BOCC adopted an amnesty policy in order to permit legalization of previously illegal rentals with conditions to insure that these rentals would provide affordable housing and not simply be profit-centers for real estate developers. See Exhibit G from CP(12/96).

The final UDC (1997) on which the FSEIS was based maintained the historic "no guest house rental" policy. Memorandum of Laura Arnold to BOCC re legislative history of guest houses, Nov. 25, l997 (#161680). The BOCC did not change the guest house policy until the final round of hearings in the spring of l998, when an Orcas Island real estate group followed through on its earlier promises to "marshal our several hundred home owners to oppose these proposals [continued prohibition of guest house rentals]." See Exhibit H, Letter of Ken Speck to BOCC, Oct. 28, l997, (# 150120). After six years of intense, continuous citizen participation and debate, one special interest group was able to overturn this long-standing county policy. See dozens of identical form letters provided in the Speck attachments, (##170157-170261). Not surprisingly, that is the only group now defending the county's position on this issue.

The intensity of the real estate group's efforts, as reflected by the volume of letters attached to the Speck Brief, is proof enough of the significance of this issue to the county and of the concomitant need for a thorough environmental review.

Although the county argues that there is insufficient information for a supplemental EIS, that is clearly not the case. The SJC Assessor has much of the data that is needed, including the size, shape, and location of every existing residence, guest house, and garage in the county. If the fineness of the Assessor's detail is in doubt, the Speck Brief provides the Board with an example, which is entirely irrelevant except to demonstrate the nature of the data available to the county. The realtors in the county could also provide data about existing levels of guest house rentals, as their letters in the record indicate. Other obvious sources are the classified ad sections of the county newspapers, as illustrated in Exhibit I, included as rebuttal evidence.

The truth is that guest house data is and has been available, but the county has not been willing to commit the resources to obtain and analyze it. As of today, there is no information in the record concerning actual numbers of guest houses in the county or actual levels of guest house rentals, whether illegal or permitted. This baseline information is the absolute minimum that should have been provided to the citizens in the format of an EIS. Increase in Unrelated "Family" Members

The county does not argue that the change to the definition of "family" was subject to environmental review because there is not a single line in the EIS or SEIS addressing this issue. The May 11, l998, Staff Report sounds a warning about allowing unlimited unrelated persons to be included in a "single family." However, as discussed above, this report does not qualify as a formal SEPA review of this critical issue. Since the decision to increase the number of unrelated persons in a so-called "family" from 5 to 8--a 60% increase--was made after the last hearing and without any further study by the Planning Department, there was neither SEPA review nor public participation concerning this major policy change.

B. Issue 7: No meaningful public participation was possible on the issue of "family" size because the public was given only three weeks to respond to the first major change in the definition and was never given an opportunity to comment on the final version.

It is an undisputed fact that the change from 5 to 8 unrelated persons was made after the final public hearing. Prior to that hearing, the definition of family had remained unchanged during the more than five years of GMA planning. See Chronology above. Nothing in the record reflects a consideration of this issue by the CACs or the Steering Committee.

The first change by the BOCC of the definition of "family" was published on May 6, l998, with a Staff Report published on May 11, l998. The public then had less than three weeks to respond to this change and no SEPA review to base intelligent comment on. During the five years of vigorous debate about land use issues, the county had never proposed the radical idea of allowing any number of unrelated people to call themselves a "family" and to receive all of the legal exemptions and other preferences given to single families.

This new and shocking policy was published at the end of the school year and the beginning of vacation time, when most citizens are preoccupied. As this Board has ruled in Friends of Skagit County v. Skagit County, #95-2-0075, FDO (5/6/99) at 2, releasing documents for review only a short time before the single public hearing does not constitute good public participation policy. Skagit County argued, as the county does here, that since one of the Petitioners participated in the hearing "thoroughly," the public participation requirement was met. Citing the Moore-Clark Inc. case, the Board asked "How many more potential citizen participants were denied the opportunity to comment because of the County's failure to provide adequate notice a timely set of materials?" Id. at 3. Similarly, in our case the public was not apprised of the significance of the change in definition and was in any event given only from May 8, l998, until June 2, l998, to find out what was happening and what it might mean. Without SEPA review, the probable environmental impacts were left to the public's imagination.

The county argues that no formal environmental analysis was needed since the final change was from 5 to 8 instead of from 5 to infinity, rendering it a beneficial change. This argument ignores the fact that until May 6, l998, as far as the public was concerned, the number was still 5. To perform a quick two-step during a three-week period and thereby avoid an environmental analysis of an occupancy increase across the board of 60% is not consistent with the requirements of SEPA. A review of the EIS and SEIS quickly shows the total absence of environmental review. The county argues that the Staff Report of May 11, l998, provided adequate review. However, a last minute staff report sounding the alarm is not enough. See Dawes v. Mason County, supra; Whatcom Environmental Council v. Whatcom County, supra.

The county argues that the increase to 8 is not really a change because 8 is the cap including related occupants. The fact remains that SJC's occupancy rate is 2.25, which includes the previous allowance of up to 5 unrelated persons. To increase the allowance of unrelated persons by 60% is to directly add 60% more paying customers to the so-called 'family" unit. As Commissioner Miller opined in her Memorandum to the BOCC on June 2, l998:

"In San Juan County, the situation is more extreme, and worsening by the moment. 25% of the population is retired, meaning no children present. Furthermore, the smallest percentage of population are the young adults, young single adults, meaning that most homes are two people or less. This is also the primary age group for families, and, due to the high cost of living and low wages, not to mention low seasonal wages, in San Juan County, these families are few and far between." Exhibit J.

This means that when the number of unrelated occupants is increased, it is a direct add-on to the occupancy levels: instead of adding 3 to the average occupancy level, the county has added six.

The county's argument that the change in "family" size is somehow mandated by a recent federal district court case concerning discrimination against handicapped children strains the limits of legal interpretation. In Children's Alliance v. the City of Bellevue, 950 F.Supp. l491 (l997), the court held that an ordinance contained "facially discriminatory language evidencing discriminatory intent unrebutted by defendant." Id. at 1500. As the county knows, federal district courts are courts of limited jurisdiction, without general authority to decide issues of state law, such as GMA, without specific and limited pendent jurisdiction. The housing requirements of GMA were not, however, pendent issues. The Bellevue case is a civil rights case involving a city ordinance that discriminated on its face in the treatment accorded to group-care facilities for handicapped persons. The court found that as a result of the ordinance, there were only four beds for homeless youth in all of Bellevue. Id. at 1494. The question of "family" size, which is not important enough to merit a headnote in the case, had been decided in an earlier order by the court which enforced the federal Fair Housing Act definition of "familial status." Id. at 1494, n.4. The Bellevue case concerned a distinction between treatment of "families" and "group facilities," two separately defined terms, which, when used together, resulted in intentional discrimination against certain handicapped groups.

The Bellevue court specifically deferred in a footnote to the case which is governing authority for our county code: City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 115 S. Ct. 1776 (1995). Id. at 1497. In City of Edmonds, a limit of 5 unrelated persons was upheld. That is still the law of the land. It could not in any event be altered by a federal district court. This U.S. Supreme Court constitutional case was the legal authority relied on by the TAC during its work on the UDC definitions.

On the subject of discrimination, the county's policy of capping the number at 8 could be said to discriminate against real families with children. For every child, the parents lose one potential renter. It seems unfair on its face to preclude a family of two parents and six children from renting their guest house while smaller families are permitted to do so. Neither the TAC nor any other citizens of San Juan County have had a reasonable opportunity to analyze this policy change or to study a formal, professional SEPA review of this particular definition, alternatives to it, and its probable impacts on our rural population.

Although the City of Edmonds case is the governing authority on this issue, the county may, of course, make a legislative decision to set a different, legally defensible limit, but there is no legal requirement to do so. In a rural county where the occupancy level is 2.25, raising the number of unrelated occupants by 60% is a significant county-wide impact which requires a SEPA review followed by meaningful public participation. That has not occurred here, thus this definition should be invalidated and remanded for SEPA review.

As this Board has recently observed, the Legislature reacted to the "statewide gobbling up of rural lands with sprawl," by saying "Stop." ICCGMC v. Island County, WWGMHB #98-2-0023c, FDO at 38. San Juan County's new CP and UDC in effect say "Go." Despite the mandate in GMA to change land use patterns to prevent further sprawl, the county has chosen "to perpetuate the past with continued reliance on consumptive land use patterns." Id.

The county still has time to change this. There is considerable subdivision potential in the rural areas that can be reduced. See Exhibit B, Appendix 1 to CP (Oct. 1996) at 21-23. Areas in the county where a pattern of 5-acre lots persists can and should be altered, such as all of Shaw Island, which has an underlying density of 1 du per 5 acres. Development regulations which facilitate subdivision into 5-acre parcels, such as the simple land division provisions in UDC Section 7.4 could be altered or eliminated to discourage 5-acre parcel development. As this Board has held, uniform 5-acre minimum lot sizes in geographical areas such as Shaw Island--not to mention fully occupied guest houses--are in violation of RCW 36.70A.070(5)(c)(iii).

Since density changes were "off the table," no constructive density revision was done. Not, however, for lack of trying: during the six years of grassroots planning, as discussed above, the single most important issue for the people was to reduce residential density. The Steering Committee, for example, decided to use regulatory measures to reduce density and requested specific study items for the county's EIS. These study items were Alternate Regulatory Approaches, Transfer and Purchase of Development Rights, Density Reduction Analysis, One percent Growth Limit, and Impact Fees. See Exhibit A. The EIS reviewed these study items in order to address the citizens' overriding concern with residential build-out. Guest house rentals were certainly part of this concern because they represent an insidious form of increased residential build-out.

The tradition in San Juan County of allowing detached second residences for each primary residence had been balanced by a prohibition since l979 against renting them. The CACs debated this issue, and the Steering Committee reviewed the minutes of the CACs and decided in a clear, decisive vote reflected in their CP draft to maintain the status quo: no rental of guest houses.

Despite the citizens effort to address the tough density issues, the county did not do the necessary GMA work of actively managing growth. The county's record lacks the evidence required by GMA that it analyzed and weighed specific goals before setting its density designations in order to discourage low density sprawl. Berschauer v. City of Tumwater, WWGMHB #94-2-0002, FDO at 4. Without a compelling reason, the county cannot comply with GMA by permitting small lot sizes outside of a UGA, which it unquestionably has done. Dawes v. Mason County, supra, at 9. To repeat this important point, there is nothing in the record to show that the county actually made a conscious and reasoned decision to stick with its 1979 densities and land use patterns. Instead, this decision was admittedly made by political default.

The case law among the GMA boards clearly rejects such a reliance on historical development patterns. The Central Board addressed this directly in Bremerton v. Kitsap County, CPSGMHB #95-3-0039c(9/97). In the Bremerton case, the county failed to perform a land capacity analysis for its ACs and where it failed to calculate the number of acres needed to accommodate growth in both UGAs and ACs. The Board observed that such calculations normally involve detailed analysis of parcels and resources in each area. Such an analysis is also lacking in our record. The Central Board invalidated the plan where the county had looked only at historical development patterns, rather than designing a stated plan for future development patterns, ruling that the "density assumption used cannot be based upon historic patterns that perpetuated low density sprawl, and must reflect the planned-for urban densities." Id. at 16 As in the Bremerton case, "the cumulative effect of these Plan provisions is to perpetuate a land use pattern that converts a significant portion of the County's rural land to low density sprawl . . . Such an outcome would substantially interfere with the fulfillment of the Act's planning goals and therefore warrants a determination of invalidity." Id at 25.

Although it is not clear either in the record or in the county's Brief, it appears that an attempt was made to rely on RCW 36.70A.070(5)(d)(iv), governing rural areas of more intensive development (RAIDs). However, the exacting standards of this statute have not been met in this record. See Exhibit B. As this Board has ruled, to satisfy this statutory exception to the normal GMA policy of directly growth to urban areas, "existing zoning cannot be a sole criteria for designating rural lands for more intense development." Wells v. Whatcom County, WWGMHB #97-2-0030(c), FDO at 5. In the Whatcom County case, the county "appears to have accommodated preexisting zoning," which is precisely the situation here. Id. Nothing has been done to alter underlying densities in any area of the county.

In several areas, the county claims that it has future plans to correct this flaw. Specifically, it will do something about the extremely high densities in some shoreline areas, such as Pear Point/Turn Point. In the SEIS, seven rural areas are identified with excessive densities under GMA. The SEIS states that these densities (1 du per half-acre and 1 du per 2) are

"[N]ot compatible with long-term retention of rural features . . . No provisions made to prevent vesting which might preclude options and incur avoidable but irreversible impacts. High densities in shoreline areas will continue and are not addressed. Policies still do not appear to meet GMA directives to protect rural lands from sprawl and associated impacts. Resource Lands development limit provide no protection against additional development after land divisions." Table 1.2 attached as Exhibit K.

The Planning Department repeated its concern about six high density areas in its Staff Report of November 12, l997: "Currently, the Plan has no effective means to address these density impacts or to safeguard options until a responsive approach has been chosen. This leaves the County vulnerable on appeal before the Hearings Board." Staff Report, supra, at 12. In the summary of impacts in the SEIS for October l997, the county is advised that the failure to alter residential densities from the l979 plan is the "source of one remaining area of unmitigated significant impact." Id. 1-5. Despite this clear warning, the county's only plan is to use voluntary methods to alter this pattern of low-density sprawl. Ordinance 2-l998 at 13 (# 171856).

The county admits that it has not done its homework in the ACs, either. The SEIS states that "Neither the Plan nor the UDC designate the land use districts within Activity Centers, neither includes guidance as to the intended or desirable placement of commercial, industrial, or other uses within these areas, nor does it distinguish one hamlet or village from another; there are no internal delineations in its Activity Centers and no interim regulations for these." Ordinance 2-l998, Legislative Findings at 7 (#171850). The county argues that higher than normal densities are allowed in ACs, but the county makes no pretense that it knows precisely what these densities amount to in terms of actual dwelling units, or that it knows how many units of affordable housing will be provided, or that it knows how the ACs along with the single UGA will accommodate OFM population projections. The increased densities mentioned by the county in Eastsound and Lopez Village are an unmeasured drop in the proverbial bucket.

In Rural Farm Forest, which includes 60% of the developable land in the county, the intent to preserve farm and forest land is not implemented in the UDC or Official Maps where lots sizes as small as one-half acre may be found and where the CP provides a density of 1 du per two acres. Provisions in the UDC such as section 7.6.2.i. undermine the goals of this designation by permitting owners to cover 30% of a parcel with impervious surfaces, in addition to roads and driveways. (#180369).

As to Goal 6 of GMA, the county does not appear to reply to the Petitioners' claim that allowing vacation and full-time rentals next door to everyone is an interference with private property rights. The county elevates tourism to the highest use category by permitting it everywhere while lowering the quality of life for residents and landowners who are not part of the tourist industry. In short, the SJC Brief gives residential values second place to tourist values. The impacts of the new county policies have not been made clear to the residents of the county, both due to the last minute nature of the changes and the absence of SEPA review. Thus, the record does not contain the kind of commentary that one might expect on this issue. However, the choices of the citizens to adopt such regulations as the Right to Farm, UDC 3.3.2, and to carefully limit bed and breakfast activities to certain places and within certain limits demonstrates the value they place on the tranquility of their rural and resource lands. See Exhibit L, TAC Minutes of 10/6/95 (Right to Farm)(#01090) and 8/11/95 (B & B Residence) (#00249).

The Petitioners have shown extensive inconsistencies between the CP and UDC and within those documents in their Petition for Review and in their Brief. The county has not responded to any of those demonstrated inconsistencies except the inconsistent densities between the CP and the Official Maps. This CP-Map inconsistency was pointed out by the Prosecuting Attorney in his Memorandum to the BOCC titled "Comp Plan Legal Review: Inconsistencies Between Official Maps and Plan Text," dated March 27, l998, attached as Exhibit M. (#170806-170812)

The county now argues that the CP contains merely "descriptive language," therefore no inconsistencies exist between a permissible density in the CP and an inconsistent density shown on the Official Maps. SJC Brief at 28-29.

The fact that existing densities within new designations are radically different, and generally higher, than the densities that characterize the new designation is not seen as an inconsistency. However, growth hearings boards have ruled otherwise. The Central Board applied the plain meaning of WAC 36-195-500 regarding internal consistency: "Each comprehensive plan shall be an internally consistent document and all elements shall be consistent with the future land use map." Berschauer v. City of Tumwater, supra at 5.

The GMA consistency requirement is defined clearly in WAC 365-195-210: "'Consistency' means that no feature of a plan or regulation is incompatible with any other feature of a plan or regulation. Consistency is indicative of a capacity for orderly integration or operation with other elements in a system." This requires that the goals, policies, and objectives of a CP must be "integrated with the density designation for each of the neighborhoods . . ." Id.. at 5. This Board has ruled similarly that WAC 365-195-210 means that "no feature of a plan or regulation is incompatible with any other feature of a plan or regulation." Citizens for Mount Vernon v. City of Mount Vernon, WWGMHB #98-2-006c, FDO at 11. The Board went further to explain that the DRs must actually implement the CP: "'Implement' connotes not only a lack of conflict but sufficient scope to carry out fully the goals, policies, standards and directions contained in the comprehensive plan." Id.

The county defends the discrepancy between the CP goals for density in particular designations and the Official Map densities by stating that "the maps show densities considered appropriate for infill in those districts." SJC Brief at 29. l. 12. This proves the point that the county is simply capitulating to residential sprawl. To simply allow infill throughout the landscape because the l979 densities are higher than the densities appropriate for the new designations is to avoid the challenge and mandate of GMA to actively manage growth.

The UDC is a complex document which must be used as a whole. UDC Sec. 1.2.1. Any major policy changes to it required careful review and analysis of the rest. For example, any significant increase in permitted uses in a particular designation would require review of the land use tables in Section 3, the performance standards in Section 4, the development standards in Section 6, and so forth. This was never done for the change to the long-standing prohibition of guest house rentals or for the change in the concept of "family."

The TAC, including petitioner Bahrych, was responsible for unifying the county regulations. See Exhibit L (#05129). The TAC was the only body to draft and revise the entire UDC. The TAC finished its work in the spring of 1997, over a year before the guest house and "family" policy changes were made. This, in large part, is the reason for the inconsistencies in the UDC and CP today: the last minute substantive changes to guest house rentals and to the definition of "family" do not fit into the fabric of the whole.

Significant inconsistencies are unavoidable where a key definition, such as "dwelling unit," is altered to permit two fully functioning residences. Throughout the UDC, a single-family residence is used as a standard for measuring impacts of all kinds. A simple example is Table 8.2, Guidance for Administrative Review of Impacts for Discretionary Use or Conditional Use. UDC 8.2. The Table uses the "SFR/EQ", single-family residence or equivalent, as its standard of measuring environmental impacts. This Table has not been modified to accommodate two fully functioning households which are now defined as a single "dwelling unit." Another simple example is the provision for a lower development standard for driveways serving only two residential parcels. UDC 6.8. This was drafted to accommodate two single-family residences, not four fully occupied separate residences. This regulation has not been modified to accommodate the change in definition. The list could go on through every element of the UDC.

A particularly troublesome set of inconsistencies concern the guest house regulations. The county claims that the Petitioners have misunderstood these regulations. There is no question that they are confusing and, in a legal sense, ambiguous. There are also logically inconsistent.

First, the guest house policy in the CP is to allow both long-term and vacation rentals of all "dwelling units." The UDC defines "dwelling unit" to include a guest house, which can be a separate free-standing second residence. In Table 3.2, the UDC prohibits transient rentals of guest houses in both Natural and Conservancy designations. However, inconsistent language in UDC 3.2,n.10 and in UDC 5.5.18 appear to permit both long-term and vacation rentals in Conservancy and long-term rentals in Natural, although this is not clear. There is no prohibition of long-term guest house rentals in Natural in 5.5.18, which governs the Natural designation in the shoreline, contrary to the county's assertion.

Moreover, the UDC does not explicitly allow long-term rentals. If they are included under Unnamed Commercial Uses, then the inconsistencies between the CP and UDC are compounded beyond the comprehension of most readers.

In the Shoreline Element, only transient rentals are called out. Even more of a challenge is presented by the failure in Section 5 to distinguish between regulation of "structures" and the regulation of "uses." According to the current code now, once a guest house is certified at the time of construction, it becomes for all time a "normal appurtenance," exempted from all of the regulations that exempt the primary residence. There are no regulations governing a change in use after construction. An owner can change his or her mind without notice and then rent the guest house, which is already a permitted structure. The guest house certification is not binding on the owner, which is a serious loophole in the regulations. Nor are there any regulations to control transfer to a new owner, which creates another loophole.

It is easy to imagine that an owner would certify that he or she intends to make only personal use of a guest house and later decide to make a commercial use of it. Or, upon resale, the new owner might wish to rent the guest house. The extent to which such changes in use could occur is purely speculative in the absence of any data in the record concerning the numbers of guest houses in the county or the frequency of guest house rentals.

The TAC was reconvened to draft revisions to the UDC at the request of the BOCC in the spring of l997, but was not asked in the spring of l998 to fit the new guest house and family policies into the tightly interwoven fabric of the UDC. Not surprisingly, there are sizeable loopholes in the SMP's treatment of guest houses and significant inconsistencies within it.

Further confusion is caused by the SMP definition of a "guest house" as a "normal appurtenance" and "therefore exempt as provided in Section 5.2.6.b(7)." UDC 5.5.18.e(2)(i). The only limitation on this exemption is for new construction of commercial guest houses in the shoreline. Section 5.2.6.b(7) requires a certificate from the owner that "the structure will be constructed by an owner . . . for his or her own use." Similarly, in subsection (3), the SMP requires a shoreline substantial development permit for construction of any non-exempt accessory development on a single parcel. However, Section 5.5.18, governing Residential Development, contains no restriction concerning owner use of the guest house, in contrast to Section 5.2.6.b.(7), which does contain that restriction. Instead 5.5.18(2) plainly states that "the following accessory uses and developments, when associated with an exempt single-family residence, are defined as 'normal appurtenances' and are therefore exempt as provided in Section 5.2.6.b(7). Subsection (i) is not on its face limited to owner use and appears to be an additional exempt accessory use since it does not deal with construction. Subsection (3) does deal with construction but here again it is not clear whether it refers to accessory development as defined in 5.2.6.b.(7) or in 5.5.18 e.(2).

One of the few clear provisions about guest houses in Section 5 is that a SDP would only be required for new commercial construction. Since no CUP is required for accessory structures specified as normal appurtenances in Section 5.18.e.(2), there would be no CUP required to change from a residential guest house use to a commercial guest house use.

One considerable inconsistency occurs between the regulations discussed above and the Exemptions from Substantial Development Permit Requirement, 5.2.6.b (7), which exempts the construction on shorelands by an owner, lessee, or contract purchaser of a single-family residence for his own use of the use of his family. Here the exemption includes a SFR constructed by a "lessee," an undefined term, which could of course include a long-term tenant. Thus a lessee could construct a SFR exempt from substantial development requirements and also exempt from density requirements. Long-term leases in the shoreline could become a popular device for avoiding short-plats or other land division requirements. The market values are high enough to justify extremely creative long-term rental arrangements.

Even if the SMP requires a SDP for new commercial guest house construction, no SDP is even arguably required for commercial use of an existing guest house. Neither is a CUP required for a change in use but only for construction that is not specified as a normal appurtenance in 5.5.18 92).

The confusion surrounding these regulations is compounded by subsection (5) which states that "short-term transient occupancy of a single-family residence or a guest house is subject to the applicable provisions of this Section 5.5.18, the performance standards in Section 4.19.3 of this Code, and the permit requirements specified in UDC Tables 3.1 and 3.2 and all other local and state regulations." There is no requirement here for a CUP, nor does the list of applicable provisions include 5.2.6.b.(7). Short-term rentals appear to enjoy the broader exemption from an SDP provided by 5.5.18, rather than the narrower exemption of 5.2.6.b(7). However, nothing about the permit requirements for use of existing guest houses in the shoreline is either clear or consistent. And, as discussed above, there is no apparent regulation of long-term rental.

Other inconsistencies include the prohibition of guest house rentals in Table 3.2, for the Natural designation which is contradicted by Sec.5.5.18.h.(6)(p. 41), which states that only 'short-term transient rental of a single-family residence or guest house is prohibited". In the Natural environment, construction is permitted of "appurtenant structures" which would include a guest house if certified for personal use at the time of construction. There is, however, no prohibition for a subsequent change of use or for the long-term commercial use of an existing guest house in the Natural environment.

None of the other inconsistencies identified in the Petitioners PFR and Brief have been opposed by the county. The petitioners emphasize, however, that where last minute policy changes of the magnitude of a redefinition of SFR and "family" are made and called out by the county's SEPA official as "doubling residential density," then all of the density-dependent regulations should be reviewed for consistency.

The current shoreline densities in rural areas range from 1 du per 1/2 acre to 1 du per 2 acres. Ordinance 2-l998 at 12 (#171855). The old "suburban shoreline" densities of 1 du per 1/2 acre have not been changed in the CP or Official Maps. Such rural shorelines densities have been rejected by GMA boards as justifiable exceptions to the prohibition against urban intensities in rural areas. See Bremerton, supra, at 22.

This problem, like all of the other density problems, has been left for another day. The county attempts to protect shoreline values only by use of siting and development standards, not by density reductions because this might raise land prices. Ordinance 2-l998 at 13 (#171856). However, the day has come for facing these thorny issues. As CTED commented on August 13, l998:

"[T]hree rural shoreline designations offer urban levels of density and should be reevaluated to ensure that urban residential sprawl patterns will not occur on the county's shorelines. We have concerns over the provisions allowing for two units per acre for both Rural Environment and Rural Residential Environment. In addition, the Rural Farm and Forest Environment density of one unit per two acres is also not an appropriate rural density. We understand the historical land use patterns in San Juan county have allowed this higher level of density to occur on the shoreline in the past. We encourage you to consider limiting residential development to appropriate rural designations (Shoreline Master Program, p.1, 3.1.C). Conservancy Environments possess valuable natural resource and scenic qualities. Historically, they are preserved to be free of intensive development. Allowing one unit per acre is not consistent with this environmental designation. We encourage you to change this density (Shoreline Master Program, p.11, 3.3.E) to one appropriate for a conservancy designation."

See Exhibit D (#172380-172384).

CTEd goes on to note that the county has failed to develop adequate criteria for more intense rural development, which is clear from the absence of work shown on this in the record.

One of the county commissioners echoed the CTED concerns in her Memorandum to the BOCC on June 2, l998, where she states that "The issue of rental of guest houses and accessory dwelling units only really comes to bear upon short terms rentals in the shoreline. Most of the shoreline lots are very small, and the rents for shoreline rentals can be high enough to justify their building. Moreover, these are sensitive areas, with small parcels, and most likely to have an impact on neighbors and land."

(Exhibit J.)

The Final SEIS recommended a moratorium on selected shoreline areas, as shown in Exhibit E. However, no action was taken to protect the remaining undeveloped shorelines. As the Planning Department observed in the SEIS of October l997, "Individual and cumulative adverse impacts to upland and shoreline habitat areas, and habitat quality, will continue to occur as a result of the development allowed by the Plan, and with a concomitant decrease in plant and wildlife abundance and diversity." Exhibit E at 3-4. While these impacts are not entirely avoidable unless we stop growing altogether, they should not be compounded by growth that is contrary to GMA goals.

The county argues that vacation rentals are appropriate in a rural landscape that is already dedicated to tourism, citing the allowance of bed and breakfast inns and residences and transient rentals of main residences. Perhaps the county is making our argument for us: the CP and UDC already permit too much residential and tourist development in our remaining rural and resource lands. Doubling the residential density and permitting vacation rentals everywhere will accelerate the loss of rural values and speedily require urban services. If you dig too many wells to serve too many people too close together, you soon need to pipe water in, which already happens in subdivisions such as Neck Point Coves on Shaw Island. See SEPA Motion Declaration of Lynn Bahrych.

The county claims that "tourism fits perfectly with the island way of life." SJC Brief at 17, l.10. This unsubstantiated statement could cause a breach in the peace in this county. By far the greater portion of the record of citizen comments is dedicated to reducing population pressures on our rural landscape--not to encouraging its sale by the pound.

The county errs in stating the Petitioners do not object to guest houses which are not rented out. SJC Brief at 13, ll.23-24. The Petitioners have specifically requested that the inclusion of "guest house" as a "normal appurtenance" be invalidated. Guest houses should be separately permitted and should not be exempt from density requirements, as clearly stated in the Petitioners PRF and Brief.

The obvious point here is that increased residential density is not compatible with the functional and visual character of rural areas, but is in fact the chief enemy of that character. As the Central Board observed in the Bremerton case, a sawmill is the type of use intended by the GMA as dependent on being in the rural area and compatible with its functional and visual character. Bremerton, supra, at 22. A sawmill and a defacto subdivision are two very different things.

The county argues that increased residential densities in rural and resource lands will not require extension of urban governmental services because "most rural islanders rely on wells and septic drain fields." SJC Brief at 15, ll.18-19. However this Board has found that septic systems do not preclude urban densities in rural areas and therefore do not necessarily comply with the goals and requirements of the GMA. Dawes v. Mason County, WWGMHB #96-2-0023, FDO at 4.

San Juan County still has undeveloped rural lands. One of the goals of the GMA is to prevent their loss through low-density sprawl and inappropriate commercial use. The county's new guest house and family policies provide both unwanted results in one package: more structures on the land dedicated to commercial use.

The thrust of the county's defense of its housing policy is that it has resolved the "competing requirements" for rural preservation and for affordable housing by distributing affordable housing across the rural landscape. SJC Brief at 3. The two GMA requirements of preserving the rural environment and providing affordable housing are not competing goals, but are in fact a single, central goal of the GMA: to direct growth, including affordable housing, to urban centers in order to preserve the rural and resource lands.

It is an undisputed fact, given the absence of any affordable housing regulations in the UDC, that the county has failed to do this or even attempted to do this. Although the county claims that its CP and DRs adequately provide for low-cost housing, it does not say how. This Board has required it to say how. Mason County, supra, at 11. Nowhere in the record is there a consideration of such things as a ratio of SFRs to multi-family housing in the UGA and ACs or use of the tiering concept of upzoning within the UGA and ACS tiers. Instead, the single device used is to allow a second SFR to be rented anywhere (nearly) in the county. No one seriously believes that this will provide adequate affordable housing. Nothing in the record of the work of the Housing Advisory Board and the Housing Needs Assessment points to vacation rentals as a solution. Quite the contrary: vacation rentals are shown in the record to be a large part of the problem because year-round renters are evicted during the more profitable summer months, as discussed in detail in the briefs of Petitioner John Campbell. (Mr. Campbell's arguments, authorities, and evidence are incorporated by this reference rather than repeated.)

The theme of the Speck Brief is that since San Juan County is already Vacationland and since new guest houses will be "small," they will have negligible impacts, thus justifying the resulting higher rural densities. Throughout the brief, the constant refrain is "limited increase in residential use" and "a few very small residential units." It sounds like being just a little bit pregnant. The brief concludes with the remarkable observation that low density sprawl will be reduced because guest houses provide a "relief valve " for residential development. Speck Brief at 18. In other words the solution to sprawl is small sprawl.

The Speck line of argument ignores the existing stock of guest houses which have traditionally been lightly used by family members and personal guests on an occasional basis. To shift to full-time occupancy by unrelated paying tenants is to shift into an entirely different regime of environmental and neighborhood impacts, none of which have been reviewed under SEPA. This line of argument also ignores the enormous over-capacity for growth that now exists in our rural and resource lands and the profound pressures now being placed on our remaining rural and resource lands. (These issues are covered in the briefs of Petitioner Fred Klein and Amicus Maile Johnson which are incorporated by this reference.)

The notion that the new guest houses will have negligible impact, visually and in every other way, is contradicted by looking at a few of them. Two of the photographs submitted by Petitioner Bahrych, P-16 and P-17 (# 220143-157) show how conspicuous a less than 1,000 square foot guest house can be. P-17 shows the guest house to the left of the primary residence. According to the file for Permit #10047 for Parcel 26201400 in the Permit Center, the three-story guest house has 320 square feet per floor for a total of 960 square feet. This is a legal guest house built for the use of the family. Photograph P-18 (#220143-157) shows another legal guest house constructed on the shoreline, this one with only two stories but equally imposing. This is the kind of development that needs to be carefully regulated to preserve what remains of the natural beauty of our shorelines and rural areas, a beauty that is not enhanced by doubling the number of residential structures.

Finally, the Speck Brief relies heavily on the l997 statutory definition of rural character. RCW 36.70A.030(14). This new statutory language provides support for protecting rural areas, not exceptions for increasing residential densities. Conclusory statements about the negligible effect of additional housing on "rural character" do not make it so. The fact remains that the county has failed to accept the burden of managing its growth according to GMA goals.

The Petitioners respectfully request remand and invalidation of the portions of the CP and UDC identified in the Petitioners' PFR and Brief, for all of the above reasons.

DATED this 7th 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

2 I. BACKGROUND AND CHRONOLOGY OF GMA PLANNING

5 II. COUNTY POLICIES THAT SUBSTANTIALLY INTERFERE WITH GMA

5 A. Issues 6 and 15: The policies of allowing guest house rentals and of enlarging the concept of "single family" were not formally or adequately reviewed as required by SEPA; thus these portions of the CP and UDC must be remanded for SEPA review.

12 B. Issue 7: No meaningful public participation was possible on the issue of "family" size because the public was given only three weeks to respond to the first major change in the definition and was never given an opportunity to comment on the final version.

16 C. Issues 1, 2, 3, 5, 9, and 12: The county's failure to channel growth to urban areas and rural activity centers and to protect the rural and resource lands from low- density sprawl is not justified by its size and unique character.

23 D. Issue 10: The Petitioners' prior showing of a multitude of inconsistencies in the CP and the UDC has not been opposed by the county with either argument or evidence to the contrary.

30 E. Issue 8: Shoreline densities of less than one acre will destroy the natural beauty of the county's shorelines of state-wide significance and are contrary to the intent of the SMA and the county's SMP.

32 F. Issue 4: Vacation rentals are not appropriate commercial activities in rural lands because urban services will follow the increased residential development.

34 G. Issues 3, 5, 11 and 14: The county's sole provision for affordable housing--permitting the rental of guest houses--does not satisfy the GMA housing requirements.

35 H. The Speck Brief relies on a view of the local circumstances in San Juan County that is contrary to our Vision Statement.

LIST OF AUTHORITIES

1. Dawes v. Mason County, No. 22540-9-II, Division Two, Slip Op., March 5, l999.

2. Whatcom Environmental Council v. Whatcom County, WWGMHB #95-2- 0071, FDO.

3. Friends of Skagit County v. Skagit County, #95-2-0075, FDO (5/6/99).

4. Children's Alliance v. the City of Bellevue, 950 F.Supp. l491 (l997).

5. City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 115 S. Ct. 1776 (1995).

6. ICCGMC v. Island County, WWGMHB #98-2-0023c, FDO.

7. Bremerton v. Kitsap County, CPSGMHB #95-3-0039c (9/97).

8. Berschauer v. City of Tumwater, WWGMHB #94-2-0002, FDO.

9. Wells v. Whatcom County, WWGMHB #97-2-0030(c), FDO.

10. Citizens for Mount Vernon v. City of Mount Vernon, WWGMHB #98- 2-006c, FDO.