The following commentary on the results of the WWGMHB's Order on Reconsideration was written by Maile Johnson.



On August 25, 1999, the Western Washington Growth Management Hearings Board entered its Order on Reconsideration in response to the Motions for Reconsideration filed by Fred Klein and the County.  Lynn Bahrych et al. had filed an Answer to the County's Motion.

Fred Klein's Motion resulted in a clarification that:
1.  Yes "all rural areas" includes shorelines for purposes of the FDO's invalidation of rural densities greater (more intense) than 1 dwelling unit/5 acres, (in other words, there can be no rural parcels created which will be less than 5 acres in size).  (FDO refers to the Final Decision and Order made July 21, 1999), and
2.  Yes the FDO had invalidated densities greater (more intense) than 1dwelling unit/10 in agricultural and 1du/20 in forest resource lands, and
3.  No the Board felt it unnecessary or inappropriate to comment on property rights and takings (unnecessary, presumably, since they and the courts have clarified that such zoning changes as a county may properly enact to comply with the Growth Management Act ("GMA") do not amount to a taking of private property) and greater densities in activity centers (inappropriate, presumably, because the County, with public participation, is to determine appropriate densities in activity centers).
 
The County's Motion (and the Answer filed by Lynn Bahrych) resulted in the following:
1.  The FDO held that density greater than 1du/5acre adjacent to resource lands was invalid and they have now, in their Order on Reconsideration, accepted the County's proposal that the zoning permitting parcels smaller than 5 acres in certain areas in activity centers is invalidated.  


    Comment:  The GMA intends greater density in activity centers than in rural areas, probably even where adjacent to resource areas.  However, as found in the FDO, the  County had never properly designated activity centers as Areas of More Intense Development (AMIRD's), a process required to be done in accordance with criteria set forth in GMA, and the Board remanded to the County the work of properly so designating activity centers, their boundaries and their densities, work to be completed with public participation.  On remand, the areas in activity centers with the invalidated density designations may be assigned the same or higher or lower densities, depending upon the results of a study of the proper boundaries of activity centers (criteria are at RCW36.70A.070(5)(d)), the allocation of population to activity centers and the evaluation of the impacts of the density designations on adjacent resource lands.   
    
2.  The Order on Reconsideration clarifies that the issue of short-term rental of existing or new guesthouses, and whether such rental amounts to a commercial activity in rural areas in violation of GMA, is to be reviewed according to .070(5)(d) if in properly designated AMIRD's or according to .070(5)(a)(b)and(c) if not in AMIRD's.
 
3.  As to guest houses, the order doesn't say yes or no to the County's question whether guesthouses might be allowed in some areas and forbidden in others.  Rather it quotes the Answer of Lyn Bahrych et al. (which had opposed the County's Motion) that guesthouses are so intertwined with density that this detail can't be determined till the basic framework is built.  That framework, as the FDO made clear, consists of (1) the determination of a pattern of densities throughout the rural area (ie, all areas not designated activity centers, agricultural or forest resource lands) that preserves the traditional rural character and prevents urban sprawl; and (2) completion of the analysis of existing and projected guesthouses, the need for them and the impacts and costs resulting from them.   
    The Board declined to say whether or not defining dwelling unit to include a main and a guest house complies with GMA.  They repeat that their first order said "[i]f the County wishes to allow guesthouses as an accessory dwelling unit for each SFR [single family residence] it must first do an analysis. . ."(emphasis added in second order).   In other words, "dwelling unit" can't include both main and guest house without completing this study and, as the FDO said, making sure "the additional guest house densities are considered and consistent with the basic densities to be established during the remand. . " which are required to preserve rural character.  


    Comment:  Preservation of rural character through sufficiently large parcels and correspondingly low density of development is required by GMA as a matter of law.  If guest houses are to be allowed it will be to the degree that (1) the density that results from their development does not erode the rural character (2) they do not impose unacceptable costs of additional services (transportation, fire, medical, law enforcement, garbage, schools, etc.) (3) they do not necessitate urban services in rural areas (sewage/water) (4) there is a need for them and particularly (5) that they do not unacceptably impact shorelines, resource lands and critical areas.  The Board suggested in the FDO it found it highly unlikely given the cost of land and housing in San Juan County that such units would provide any low or even middle income housing.  

4.  As to the County's question whether RCW36.70A.400, a state law concerned with adequate housing, mandates the allowance of guesthouses in all single family residential areas, the Board said this issue was not presented in the prehearing order.  Although this question was thus not properly before the Board for determination, to help the County the Board would point out that section .400 requires the County to comply with RCW43.63A.215(3) which requires incorporation of the CTED  recommendation for development of accessory apartments, and which allows local flexibility by permitting the local legislative authority (ie the County) to limit the CTED report in its land use laws.  


    Comment:  RCW 43.63A215 says to "encourage development of accessory dwelling units"; it seems obvious it's not a flat requirement to permit such units, but a requirement to look where such units could be allowed without violating other provisions of GMA, such as preservation of rural character and resource lands, evaluating costs of services and avoiding adverse environmental impacts.
    The County had phrased its question using the term "guest houses" and the Board answered by underlining the word "apartments".

In sum, petitioners lost nothing in the Order on Reconsideration of the decisively favorable ruling they originally received.  Indeed, the Order on Reconsideration emphasized that the bottom line for a Comprehensive Plan is that it preserve rural character.  On remand the County must determine densities which preserve San Juan County's traditional rural character.