BEFORE THE WESTERN WASHINGTON GROWTH MANAGEMENT

HEARINGS BOARD

STATE OF WASHINGTON

Fred R. Klein

Petitioner,

Case No. ..........................

v.

PETITION FOR REVIEW

San Juan County

Respondent,

1. Petitioner: Fred R. Klein

PO Box 1089

Eastsound, WA 98245

360-376-5377

2. Date of action under appeal: December 20, 1998

(date of publication of the Notice of Implimentation of the San Juan County Comprehensive Plan and Unified Development Code)

3. Detailed statement of issues presented for resolution by the board:

a. Issues: (The following issues challenge compliance of SJC Code Chapter 16.44 with RCW 36.70A, and with RCW 43.21C as it relates to plans, develop- ment regulations or amendments, adopted under RCW 36.70A.040. and described by Element 2, Land Use, and the Official Maps.)

(1) Issue #1: The adopted plan contains a Vision Statement emphasizing the rural character and natural beauty of the islands which is inconsistant with the devel- opment patterns and development potential permitted in the body of the plan.

(2) Issue #2: The adopted plan does nothing to encourage development in "urban" areas nor discourage the continuing conversion of rural land into sprawling, low- density residential development per the primary goals of GMA.

(3) Issue #3: The process of creating the adopted plan excluded consideration of any changes from the 1979 plan in residential densities to meet the primary goals of GMA.

(4) Issue #4: The adopted Plan’s Land Use Designations are inconsistant with the allowable residential densities shown on the Official Maps.

(5) Issue #5: By failing to permit consideration of changes from the residential densities of the 1979 Plan in their adoption of the 1997 revisions and as a consequence of this failure, implicitely allow a continuation of development trends contrary to the Vision Statement and the goals of GMA, the SJC Commissioners prevented the citizens of San Juan County from "Fulfill(ing) the responsibilities of each generation as trustee of the environment for succeeding generations" as per RCW 43.21C.020(2)(a).

(6) Issue #6: By failing to permit consideration of changes from the residential densities of the 1979 Plan in their adoption of the 1997 revisions and as a consequence of this failure, implicitely allow a continuation of development trends contrary to the Vision Statement, the SJC Commissioners did not meet their responsibilities to "Utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man’s environment" as per RCW 43.21C.030(a).

b. Issue Background

(1) San Juan County consists of over 100 islands in north Puget Sound; four islands are served by WS ferries. It is considered "an extraordinary treasure of natural beauty and abundance" by its citizens (quote from Comp Plan Vision Statement). Primarily rural in character, it has but one incorporated town, that of Friday Harbor. Historically, its inhabitants worked in agriculture, fishing, logging, and a nascent tourist industry which included small cabin resorts as well as Moran State Park. Since WWII, tourism and vacation homes increased dramatically; today, SJC is the fastest growing county in the state as retirees and middle class working families have sought out the tranquility, natural beauty, and challenges of island life. Industry other than tourism and residential construction is virtually nonexistant.

(2) Prior to the adoption of its first Comprehensive Plan on October 2, 1979, land use regulation in San Juan County was nonexistant. Petitioner is informed that if one could get a permit from the county Sanitarian for a septic drainfield, one could literally build any structure, of any size, for any use, anywhere. Although amendments to that

Plan were made in 1981, 1986, and 1989, it is essentially the 1979 Comp Plan which is being revised to comply with GMA requirements.

(3) The 1979 Plan included designating residential densities throughout the county. Information available to Petitioner as to how those designations were determined is incomplete and anecdotal, but it is clear to Petitioner that the process was not done on a rigorous planning model; rather, the results were largely...but not always...based on what individual or groups of property owners desired and, to some extent, on the then- existing patterns of subdivision and development. Petitioner is informed that it was nonetheless a very controversial process, with much rancor and argument. Unhappy landowners were molified by the inclusion of a redesignation process. Nonetheless, over time, popular opinion evolved to hold that residential densities were fixed and inviolate; requests for redesignation were rare, and approvals rarer still. The subdi- vision of land thru the "long plat" process has proceeded with few constraints; this pro- cess is the real engine which drives the development of rural lands in the San Juans.

(4) The density pattern of residential designations established in 1979...in very general terms...provided for R-20 in existing agricultural uses and remote forestland, pockets of R-2 and Suburban (half-acre) in areas of pre-existing subdivisions and villages, and the bulk of the county was designated R-5, almost by default. Excepting these areas of pre-existing subdivisions and villages, the residential density pattern is essentially one of low density uniformity. It is the subdivision and development of land lying between the historic villages which is transforming the traditional rural character of the islands which can be characterized as undeveloped forest and agricultural lands separating nodes of settlement.

(5) Although Petitioner doubts the term was used or actual computations done, the 1979 Plan and its densities established a basis for computing the "ultimate build-out" or full development potential of the county. This "ultimate build-out" was established ` without regard to any of the elements we might include today under the term "carrying capacity" of the land, e.g. critical areas, habitat, water resources, and topography, nor

did it address the implicit impacts of development pursuant to the Plan on the quality of life and rural character of the islands.

(6) Petitioner makes these observations regarding the previous Plan without criticism; the 1979 Plan was, after all, the first successful effort to adopt land use regulations in San Juan County...one can hardly expect a perfect document starting from scratch. Comments are intended to create a context for what Petitioner believes are the shortcomings in both the process and the outcome of the county’s current planning effort.

(7) In 1992, citizen’s advisory committees were formed to start the GMA compliance process in SJC. The first task the committees faced was to forge a "Vision Statement" ...the pre-eminent component of a plan for the future of the islands. Petitioner attended most of the District 2 meetings, and the predominant thought expressed was one of maintaining the "rural character" of the county in the face of anticipated growth and development. (Copy of final Vision Statement is included as Exhibit "A".) Almost without exception, committee members were aghast as they attempted to come to terms with their Vision Statement and their realizations of the impacts (in terms of population, traffic, development patterns, quality of life, and loss of "rural character") of current trends based on the old plan. No one present at the meetings Petitioner attended expressed a willingness to accept the social and environmental consequences of development permissable under the 1979 Plan.

(8) At the beginning of the planning process, the SJC Commissioners made it clear that neither the citizen committees nor county planning staff were to consider changes in residential densities. From 1992 and throughout the county’s GMA planning process, a process aimed at major revisions to its Comprehensive Plan and the creation of its guiding blueprint for the next twenty years, right up to its adoption on December 20, 1998, the SJC Commissioners insisted that changes in residential densities were not a subject for consideration. Petitioner asserts that land-use plan- ing is ineffectual if not impossible when both density decreases and density increases are ignored as a tool for guiding development patterns and complying with the GMA.

(9) It is Petitioner’s belief that the inconsistancies between the adopted Vision Statement of the Plan, the Plan itself, the Official Maps, and the failure to address changes in residential densities create a contradiction which merits remanding the revised San Juan County Comprehensive Plan back to SJC for additional work and is the crux of the Issues outlined in this petition.

(10) The terms "urban areas" and "urban growth" in the context of GMA and San Juan County deserve comment. As a rural county, SJC has no areas for which the popular use of these terms apply, hence, in the GMA planning process, county planners have been allowed to substitute and define the terms "Activity Centers", "Villages", and "Hamlets" to indicate areas of concentrated development and availability of public services.

(11) GMA defines "Urban Growth" as "growth that makes intensive use of the land for the location of buildings, structures, and impermeable surfaces to such a degree as to be incompatible with the primary use of such land for the production of food, other agricultural products, or fibre, or the extraction of mineral resources" Much of the land in San Juan County is being developed in low density residential uses. Indeed, Petitioner asserts that any designation allowing residential development at a density of 1 unit/2 acres is incompatible with the above-noted primary uses.

(12) In other words, by GMA definitions, SJC is being consumed by urban growth, rather than having it confined within urban and urban growth areas (or within "Activity Centers", using the SJC term).

(13) The context for residential density in a rural county such as San Juan also deserves comment. As stated, a major force in the fast-paced growth of SJC is residential development. The vast majority of this growth is occurring on rural forestland, shoreline, and conversion of agricultural land. The range of the density spectrum in SJC is significantly below that of a mainland county or metropolitan area. For example, the highest residential density allowable is but 6 detached or 8 attached homes/acre and is limited on Orcas Island to small portions of Eastsound Village. Within Eastsound, the largest village in the county, with the exception of four government assisted low income developments, none of this "high density" residential land is being developed for residential uses; rather, it is being developed for non- commercial community service uses such as cultural, medical, fire hall, and churches. Elsewhere on the island, much of the land permits either 1 unit/5 acres or 1 unit/2 acres.

(14) As a consequence, within the "density spectrum" of San Juan County, all of the impacts of the conversion of R-2 and R-5 rural lands to residential development (including visual, traffic, environmental, services, and population growth) become evident to an equal or greater extent than the impacts of suburban development on the mainland where the "density spectrum" ranges far higher. Indeed, it is the conversion of R-2 and R-5 rural land in a suburbanization of the islands which continues unabated.

c. Supplemental Background

(1) Included as Exhibit "B" is an article on the subject of this petition which was published in the local press. Authored by Mr. Joe Symons, Chair, District 2, Comprehensive Plan Citizen Advisory Committee, and originally composed and sent as a letter to the SJC County Commissioners, it makes an eloquent case for the shortcomings in the adopted plan.

4. Specific examples of inconsistancies between the adopted Plan and Official Maps.

Petitioner has examined Section B, Element 2, Land Use (the Plan), and the Official Maps. The following are a few examples which demonstrate widespread internal inconsistancies and the Plan’s utter failure to meet a primary GMA goal, that of discouraging "the inappro-priate conversion of rural land into sprawling low-density residential development".

a. Example #1:

(1) Included as Exhibit "C-1" is an Official Map of District 1 which highlights an area designated Rural Farm Forest (RFF) with a Density Boundary indicating an allowable residential density of 1 unit/2 acres; "C-2" shows the highlighted area enlarged. The area is remote from any Activity Center and is surrounded by 1 unit/10 acre and 1 unit/5 acres RFF and pockets of Forest Resource Lands; about 20% of the area is currently subdivided into lots of from approximately 3 to 5 acres; the balance of the area is lots of 20 acres , 40 acres, and larger.

(2) Exhibit "C-3", taken from Section B, Element 2, Land Use, para. 2.3.B.b. describes the criteria for Rural Farm Forest designation. Included as Policy (1) ii is the statement that "Parcels are generally five to ten acres in size", and indeed, the Goal and Policies supporting RFF land speak eloquently of rural activities and lifestyles.

(3) Petitioner asks:

What happens to "small-scale farming and forestry activities" when they are overlaid upon a permitted residential density of 1 unit/2 acres?... particu- larly when, along with each home, comes the likelihood of a guest house? (Note Policy 12!)

What "small scale farming and forestry activities" would be possible with a 1 unit/2 acre density? More to the point, how would this be any different from a 2 acre suburban subdivision?

Can a 1 unit (plus guest house) per 2 acres subdivision be referred to as "rural" in any event?...is this not an example of just what GMA prohibits, namely, "the inappropriate conversion of rural lands into low density residential sprawl?"

(4) Petitioner submits that so-called Rural Farm Forest Land with a permitted density of 1 unit/2 acres results in suburban sprawl, is not rural at all, but more importantly, is inconsistant with the criteria in the Plan for said designation and therefore not compliant with GMA.

(5) Petitioner submits furthermore that if the criteria for RFF was changed from "five to ten acres" to "two acres (or more)", the RFF designation would be nothing more than a semantic subterfuge for suburban development and not compliant with GMA.

b. Example #2:

(1) Included as Exhibit "D-1" is an Official Map of District 2 with highlighted areas around the small Activity Center of Orcas Landing and the larger Activity Center of Eastsound Village; enlarged portions of the map are noted as "D-2" and "D-3".

(2) "D-2" indicates Agricultural Resource Lands (AR) with a residential density of 1 unit/5 acres to the north of the Activity Center, Forest Resource Lands (FR) with a residential density of 1 unit/10 acres to the northeast beyond, and Rural Farm Forest Lands (RFF) with a residential density of 1 unit/ 2 acres to the east of the Activity Center.

(3) Exhibit "D-4", taken from Section B, Element 2, Land Use, para. 2.3.C.a-b., describes the criteria for Agricultural Resource (AR) and Forest Resource Land (FR) designation. Policy 2.3.C.a.(1).i includes the criterium that lands eligible for the AR designation shall be "areas in parcels of ten acres or larger".

(4) Petitioner does not quarral with the fact that a couple of parcels within this AR area appear to be less than ten acres; Petitioner does, however, question GMA compliance and the internal consistancy of the Plan and the Official Maps when the criteria for the AR designation clearly calls for "parcels ten acres or larger" and a map with a Density Boundary clearly allows future subdivision of the land into five acre parcels.

(5) By definition in para. 2.3.C.a., the AR designation is "to ensure the conservation of agricultural resource lands of long-term commercial significance...and protect these lands from interference by adjacent uses which may affect the continued use of these lands for production of food and agricultural products".

(6) Petitioner submits that by underlying AR lands with a residential density of 1 unit/5 acres, the Plan does not "protect these lands from interference by adjacent uses"; indeed, the Plan sabotages continued agricultural use by placing them on par with adjacent lands designated for rural residential development.

(7) By definition in para. 2.3.C.b., the Forest Resource Lands designation is "to protect and conserve forest lands of long-term commercial significance for sustainable forest productivity and provide uses which are compatible with forestry activities..."

(8) The FR lands shown on Exhibit "D-2" currently are held in parcels which appear to be between 20 and 40 acres, easily meeting the criteria of 2.3.C.b.(1)ii that "parcels are twenty acres or larger". Nonetheless, the Density Boundary of the Official Map indicates a permitted residential density of 1 unit/10 acres.

(9) Petitioner contends that residential development at a density of 1 unit/10 acres provides a use which is not "compatible with forestry activities" as per definition of FR land.

(10) Petitioner asserts that when the criteria for the FR designation clearly calls for "parcels twenty acres or larger" and a map with a Density Boundary clearly allows future subdivision of the land into ten acre parcels along with concurrent residential development., there is an internal consistancy between the Plan and the Official Maps and non-compliance with the GMA.

(11) Petitioner includes as Exhibit "F", Section B, Element 2, Land Use, General Policies 2.2.A.1-14. Policy #8 reaffirms that "maximum allowable density applied to land by designation on the Official Maps reflects the general intent of this Plan for residential development and should be allowed unless maximum density would exceed site capabilities or unless it would thwart other applicable County land use regulations".

(12) Petitioner asserts that FR land permitted to be subdivided into ten acre parcels for residential development is inconsistant with the Plan’s criteria for the Forest Resource designation and therefore noncompliant with GMA.

(13) In Exhibit "D-2", the Rural Farm Forest Lands (RFF) within a Density Boundary of 1 unit/2 acres conform to the same designation/density as those described in Example #1; the same arguments and reasoning are applicable here and are included here by reference.

(14) In this instance, we find the RFF-2 abutting the tiny Activity Center of Orcas Landing. Orcas Landing is currently struggling with planning its future and the overwhelming public sentiment is for its character to remain as it is today: small and intimate in scale. What the Plan provides, however, cloaked in the guise of the eloquent description and criteria for Rural Farm Forest, is nothing less than abutting the village with massive areas of low density (1 unit [plus permitted guest houses] per 2 acres) suburban residential subdivisions which, Petitioner contends, does not comply with the requirements of the GMA.

c. Example #3:

(1) Included as Exhibit "D-3" is an enlarged portion of the District 2 Official Map which indicates an area of Rural Farm Forest (RFF) with a permitted residential density of

1 unit/2 acres to the west of the Eastsound Village Activity Center.

(2) The characteristics of this land area conform to the same designation/density as those described in Example #1; the same arguments and reasoning are applicable and are included here by reference.

(3) Petitioner notes that this area, outside of but adjacent to the Eastsound Village Activity Center, has a permitted residential density which exceeds that of portions of the Activity Center, notwithstanding the fact that those portions of the Activity Center are served by water and sewer mains (as well as power, telephone, roads, etc.) whereas the referenced RFF-2 is served by none of this infrastructure other than power and telephone.

(4) Petitioner notes that the RFF-2 land is largely un-subdivided and un-developed at this time; although there appear to be 2 lots which may be less than five acres, the area is currently in parcels which appear to vary between five and forty acres. Thus, this area represents a large potential for future "inappropriate conversion of rural lands into low-density residential sprawl". When viewed along with the more restrictive development potential of portions of the Activity Center (with a residential density limited to 1 unit/5 acres), the net result is contrary to the Plan’s purported Policy 2.2.A.3, namely, to "Direct high density residential and mixed use development into activity centers to prevent sprawl and relieve growth pressure in the surrounding rural areas".

(5) Petitioner asserts that this example demonstrates the Plan’s internal inconsistancy and consequent non-compliance with the GMA, as well as its failure to comply with the GMA requirement that plans must "encourage development within urban growth areas (aka activity centers) and discourage the inappropriate conversion of rural lands into low-density residential development".

5. Comment on General Policies (2.2.A.1-14), Section B, Element 2, Land Use, Pg. 2.

a. Included herein as Exhibit "E", Policies numbered 5, 6, 9, 10, and 11 mention laudable future analyses, possible actions, and proposed options for future land subdivision. Note that the policies are laced with terms such as "voluntary mechanisms", "include consideration of", "should also be allowed", "establish strategies that encourage", and "voluntary participation of the property owner". These policies pertain to possible changes from existing allowed residential density and development patterns only to the extent that they offer modest hope that attempts will be made in the future to appeal to the better nature of landowners who historically subdivide and develop their land in accordance with currently permitted densities.

b. Although these Policies speak directly to GMA goals , nowhere does the reader find the mandatory language expected when the very issues raised go to the heart of GMA compliance with respect to the GMA requirement that the adopted plan must discourage "the inappropriate conversion of rural land into sprawling low-density residential development".

c. Note that in the development regulations intended to implement the Plan, there is absolutely no reference to "density transfer programs" or "transfer of density rights (TDR) program".

d. The Petitioner invites the APPEALS BOARD and the CTED staff to require San Juan County to answer the following question:

How can GMA compliance be achieved with vague references to future "voluntary mechanisms" based on the "voluntary participation of the property owner" in order to "protect rural character and discourage the inappropriate conversion of rural land into sprawling low-density residential development"?

e. Policy #8 affirms that maximum allowable density applied to land by designation on the Official Maps reflects the general intent of this Plan for residential development and should be allowed unless maximum density would exceed site capabilities or unless it would thwart other applicable County land use regulations".

f. Policy #12 affirms that the residential density shown on the Official Maps is essentially doubled by allowing a guest house to be built on each parcel.

g. Given that rural landowners desiring subdivision of their property will be armed with Policy #8, the County will face an uphill battle at preventing maximum subdivision of rural lands even in the event that some useful voluntary options result from the potential initiatives described in Policies #5,6, 9, 10, and 11.

h. Petitioner asserts that Policies 1-14 in sum are inadequate to deal with the development pressures on rural lands in San Juan County and have insufficient strength to meet the regulatory levels required by GMA to manage growth and preserve the rural character described elsewhere in the Plan.

6. Basis of the petitioner’s standing before the board: RCW 36.70A.280(2)(b).

Petitioner participated both orally and in writing before the San Jan County Commissioners regarding the matters on which review is being requested, specifically in a letter dated November 6, 1995, at the SJC District 2 Public Hearing on Revisions to the SJC Comprehensive Plan held on November 14, 1995, and generally at various hearings and public meetings held throughout the Comprehensive Plan revision process by the District 2 Citizen’s Advisory Committee.

7. Estimated length of the hearing:

Petitioner requests 2 hours for his presentation; however, he anticipates being joined by a number of Amici whose time requests are unknown. Additionally, the Petitioner cannot estimate the length of time required by the Respondent.

8. Relief sought, including the specific nature and extent:

Remand the adopted 1998 plan back to SJC for additional work by county planning staff and citizen advisory committees, with generous opportunities for public testimony in order to:

(1) Reconcile the contradictions between the Vision Statement and the development patterns and development potential spelled out in the body of the Plan and the Official Maps. (Issue #1)

(2) Add specific language to the Plan which meets a primary goal of GMA, namely to both encourage development in "urban" areas and discourage the continuing conversion of rural land into sprawling, low- density residential development. (Issue #2)

(3) Thoroughly review the Official Maps and reconcile the Density Boundaries with the parcel sizes given in the descriptions included in the Plan for the various land use designations. (Issue #4)

(4) Revise the Density Boundaries of Rural Farm Forest Lands so that residential density is 1 unit/5 acres in conformance with criteria stated in Section B, Element 2, Land Use, para. 2.3.B.b.(1)ii and preclude future subdivision of parcels of less than 5 acres. (Issue #4)

(5) Revise the Density Boundaries of Agricultural Resource Lands so that residential density is 1 unit/10 acres in conformance with criteria stated in Element 2, Land Use, para. 2.3.C.a.(1)i and ii, Policies, and preclude future subdivision of parcels of less than 10 acres. (Issue #4)

(6) Revise density boundaries of Forest Resource Lands so that residential density is 1 unit/20 acres in conformance with criteria stated in Element 2, Land Use, para. 2.3.C.b.(1)i and ii, Policies, and preclude future subdivision of parcels to less than 20 acres. (Issue #4)

(7) Add specific language to the plan to require that the ambiance and natural beauty enjoyed by current residents will be able to be enjoyed for generations to come. (Issue #5)

(8) Require full and complete public discourse of the means by which future residential development patterns and development potential can be altered so that as growth occurs, the present rural character and unique aspects of life in the San Juans can be preserved. (Issue #5)

9. The undersigned petitioner, Fred R. Klein, has read this petition for review in its entirety and believes its contents to be true.

_____________________________

Fred R. Klein

Date: February 16, 1999

Attachments: Exhibits "A"

"B" Exhibit "B"

"C-1", "C-2", "C-3"

"D-1", "D-2", "D-3", "D-4"

"E"