BEFORE THE WESTERN WASHINGTON GROWTH MANAGEMENT
STATE OF WASHINGTON
TOWN OF FRIDAY HARBOR, FRED R. KLEIN, )
JOHN M. CAMPBELL, FREDERICK E. ELLIS, JR., )
AND LYNN BAHRYCH, et al., )
) Case No. 99-2-0010c
) REPLY BRIEF OF
SAN JUAN COUNTY, ) PETITIONER ) FRED R. KLEIN
JOE SYMONS, FRIENDS OF THE SAN JUANS, )
and KAREN J. KEY SPECK, et al., )
1. Petitioner: Fred R. Klein
PO Box 1089
Eastsound, WA 98245
Respondents brief and accompanying objection include certain allegations, some of which relate to issues in the Prehearing Order which Petitioner addressed in his brief. Petitioner responds and comments as follows.
To the extent that Petitioners brief may have included "conclusory statements" and may have neglected to cite authorities in support of his arguments, Petitioner pleads that the Board take full notice of the brief filed by Amicus Johnson which addresses Petitioners claims. Amicus Johnson has meticulously referenced the Act, supporting WACs, previous Board decisions, the San Juan County Comprehensive Plan, and documents from the Index in a manner which scrupulously buttress Petitioners claims. Petitioner includes herein by reference Amicus Johnson brief.
3. Issues in the Prehearing Order addressed by Petitioners brief and by Respondents brief:
Petitioner addressed Prehearing Order Issues 1, 2, 3, 9, 10, 12, and 13. Respondent addressed these Prehearing issues en mass under the general heading of Density.
4. Petitioners Reply brief:
Petitioner will not attempt to dissect Respondents brief so that it speaks to the Prehearing Order issues sequentually. Petitioner will, however, excerpt certain statements by quotation from Respondents brief (numbered 5 thru 18) which, if left unchallenged, might be construed by the County to raise doubts as to the accuracy of Petitioners arguments previously briefed. Petitioners comments follow each quote as sub-paragraphs. Petitioner has endeavored to not re-argue the Prehearing Order issues discussed in his brief.
5. Respondent claims that "in spite of the largely rural population, the rural life style is not resource dependent". (SJC Brief pg. 1, line 22).
5.1 This claim misleads the discussion for two reasons. Tourism and retirement are the two pillars of the islands economy and "[t]his underscores the importance of maintaining an preserving the beauiful natural environment of the Islands for both the quality of life for Island residents and the economic vitality of the community." (Index #0220132, Economic Factors, SJC Profile). The beauty, rural character, and natural environment of the islands themselves constitute the resource base of the tourism and retirement industries.
5.2 Secondly, Respondent suggests by this statement that we do not need to comply with GMA to protect our resource lands because they are not as significant a part of our economy as is tourism. (ibid). Clearly conserving forest and agricultural lands is mandated by GMA, by the overall guiding Vision Statement in the CP, and by the fact that the tourism and retirement industries also rely upon these same resources. Furthermore, the economic viability of resource lands cannot be considered in their designation. (Achen v. Clark County, # 95-2-0067, May 11, 99). The Act is explicit that they are to be designated and protected.
(# 95-2-0067, Compliance Order [Oct. 1, 96] )
6. Respondent mistakenly describes an applicable rule of law developed by the Board(s) when it refers to a "5 acre rule". (SJC Brief pg. 23, line 3)
6.1 In fact, the "bright line" that distinguishes rural from urban density of development was drawn at parcels of less than 10 acres. Amicus Johnson discusses this rule on pages 8 and 9 of her brief which discussion is incorporated herein by reference. The cases have found that a density of 1 du/5 to 10 acres in size is subject to a high degree of scrutiny to determine whether the number, location and configuration of such lots does not establish a pattern of urban development, threaten resource lands, or thwart the long term flexibility to expand urban growth areas. Petitioner asserts that SJC does not show how these conse-quences are avoided by its use of such densities as 1 du/half acre, 1 du/2 acre, and 1 du/5 acre.
6.2 The embedded pattern of potential development in SJC, based on the 1979 densities, includes a vast overcapacity of existing and potential parcels in the rural area. "There is still considerable subdivision potential within the county with existing upland parcels represent-ing only 41% of potential parcels." (SEIS, 184.108.40.206) See Table 18, Population Projection, Buildout Analysis, and Land Use Inventory, pg 19, CP, Appendix 1. This table (using terminology from the former CP, whose densities have not changed in the present CP) shows the following: only 46% of potential two acre parcels in the rural area presently exist; 23% of the potential Suburban (now re-named as Rural Residential) presently exist; 54% and 59% of potential parcels in Rural 5 and Rural 10 presently exist. Thus, there is a tremendous development potential lurking within the presently undeveloped rural areas of the islands, realization of which will be utterly inconsistent with GMA, the CPs Vision Statement, and the rural lands designation definitions. "Whether densities are characterized as "urban", "suburban", or "rural residential", they do not comply with the GMA when located in RLs." (Hudson v. Clallam County #96-2-0031, FDO 4-15-97, and quoted in Island Citizens v. Island County, #98-2-0023c, FDO June 2, 1999).The minimum lot size must be greater than 5 acres to constitute rural growth especially when there is an excessive number of rural parcels. (Achen v. Clark Cty,#95-2-0067, and Whatcom Environ. Counsel v. Whatcom Cty., #95-2-0071). The close scrutiny standard for impermissibly small parcels has not been met.
7. Respondent claims the "specific characteristics of the San Juan Islands" justify these higher densities allowing for more intense development. (SJC Brief pg. 23, line 3)
7.1 We are small...we should have small parcels, is SJCs suggestion. Petitioner believes this is a non sequitur and a superficial argument. In fact, the underlying reality argues forcefully for the opposite conclusion. While in some rural mainland counties tulips or wheat fields stretch to far horizons, SJCs land mass is most circumscribed. Five acres here are no larger than in Skagit or Lincoln Counties; building a house, garage, workshop, boathouse, wood and equipment sheds, and a detached guest house as island residents often do does not leave "vegetation dominating over the built environment" [RCW 36.70A.030(14)(a)] on a half acre, two acre lot, or even a five acre lot, regardless of how near or far the horizon. Such development is not compatible with the use of the land by wildlife and for fish and wildlife habitat nor does it protect natural and surface water flows. (RCW 36.70A.030(14)(d) and (f). Residents have cars, RVs, satellite dishes, pick up trucks, and boats; they run cottage enterprises and B & Bs, like sunshine, and they clear, grade, and develop their land aggressively to do so. Any parcel size of 5 acres or less permits development which is "incompatible with the primary use of land for the production of food," a definition of urban growth. (RCW 36.70A.030  ). Allowing a pattern of 1 du/5 acre density across the rural area would amount to an urban pattern of development. That there are higher densities of 1 du/half acre and 1 du/2 acres areas as well simply worsens the failure to comply with GMA.
7.3 Furthermore, the "specific characteristics of the islands" must include consideration of widespread and site specific uncertainties with regard to water availability. CP Element 4, Water Resources, speaks at length to this issue; SJC "differs from most of the rest of the state and nation in that available fresh water results only from precipitation" (CP 4.1.A) and is rife with references to scarcity, e.g. "Establish countywide water conservation measures", "to help prevent water supply failure during periods of drought or other resource shortage, require conservation standards for water system design and approval", "Allow the transfer of drinking water from one portion of an island to another" (CP 4.2.A.1-9). When the Central Board dealt with the specific characteristics of an island, it held that "the pattern of five-acre lots on Vashon Island does not comply with the Act given the Countys admission that Vashon Island has a history of water quantity and quality problems". (Vashon-Maury, 78-79).
8. Respondent claims "The Countys rural uplands densities range from two acres to forty acres outside of Rural Activity Centers" (SJC Brief pg. 23, line 20).
8.1 Petitioner notes that this statement is misleading in that this range of densities includes "resource lands" within "rural"; this is contrary to GMA. The Act requires a CP to "include a rural element including lands that are not designated for urban growth, agriculture, forest, or mineral resources." (RCW 36.70A.070.  ). "The rural element shall provide a variety of rural densities..." (RCW 36.70A.070. [b] ). Referring to the Official Map of District 2 and looking at Orcas Island, the largest in the county, the lowest density on rural lands (as distinct from resource lands) is 1 du/5 acres; i. e., there are no areas of rural lands with densities of, say, 1 du/10 or /20 acres.
8.2 Although higher densities exist in the rural areas (1 du/2 acres, and 1 du/half acre), Petitioner claims that such densities are not in fact "rural" but "urban" per numerous, previously briefed, Board decisions, thus the CP violates the Act. The violation is rooted in the CPs adherence to the 1979 densities. The 1979 densities, which were set without an inkling of the future GMA requirements nor with any recognition of resource lands, do not provide for "a variety of rural densities" and are therefore noncompliant with GMA.
8.3 Petitioner notes that the Official Map of District 3 which includes Lopez Island indicates a limited degree of variety of rural densities. Petitioner reminds the Board that this is simply a happy coincidence derived solely from the pre-existing 1979 density pattern; it is not the result of a studied effort aimed at GMA compliance. Petitioner argues that, unlike a mainland county with a contiguous land mass, SJC does have the "special circumstances" claimed by Respondent, and with its discrete islands, each of which is experienced as a separate entity, must provide the required variety of rural densities on each major island, at least upon those islands which are ferry-served and with sufficient roads, services, a mix of residential and commercial development, and population to constitute vital, multi-dimen-sional communities.
8.4 The rural element of the plan must be consistent with rural character. [RCW 36.70A .070(5)(b)]. Underlying the traditional rural character of SJC is a pattern that includes large parcels. This is visable on the Official Maps which show parcel lines, and therefore document the traditional character with which the rural element of the CP must harmonize.
9. Respondent cites a recent Eastern Board case allowing a density of 1 du/2.5 acres in the rural area based on "local circumstances" (EWGMHB #95-1-0010 at 2067).
(SJC Brief pg. 24, line 8).
9.1 After going to great lengths to distinguish San Juan County as a small and unique jurisdiction of 175 sq. miles and 12,500 population, and chastising Petitioners for citing cases in neighboring (and larger) counties, Respondent leaps across the Cascades to another bio-region to the 2200 sq. miles of Ferry County with its population of 7300 souls, a population density of 3.3 persons per sq. mi. (#0220025). Whatever the"local circum-stances" were which moved the Eastern Board to make such a finding, it is hard to imagine a connection between that decision and an appropriate one for San Juan County, the fastest growing county in the state with a population density of 70.9 persons per sq. mi. not including a summer influx which more than doubles that figure. Such a figure of 142 persons per sq. mi. exceeds the State average of 82.9. (#0220025) And Respondent talks about "apples and oranges"!
9.2 The islands are indeed small, and thus at much greater risk of losing their rural character at a given density of development than vastly larger mainland counties. Applying the Respondents argument would permit developing the islands to what is generally considered urban on the mainland, turning the islands into floating urban developments with no rural element at all. SJC has far less open space to begin with; we need to protect it all the more. That there are parks in the County is scarcely an exception to the GMAs prohibi-tion against permitting urban densities in the rural area. It would be a damaging precedent and an extreme distortion of the Act to recognize parkland as a justification for sprawl.
10. Respondent notes that "islands are surrounded by water and this isolation gives the islands a feeling of much smaller scale" and alleges, "After making comparisons between the diverse character of the counties of this state and looking at the unique local circum-stances of San Juan County, it is reasonable to find that the densities of San Juan Islands farmlands and forests are appropriately smaller than those of Lincoln, Skagit, or Whatcom counties". (emphasis added) (SJC Brief pg. 24, lines 2 and 11)
10.1 Respondent confuses densities with parcel sizes. Again taking Orcas Island as an example, densities shown on the Official Maps in agriculture (allowing for 1 du/5 acres and 1 du/20 acres) and forest (allowing for 1 du/5 acres and 1 du/10 acres) resource lands are in fact significantly higher than those in other counties throughout the state.
10.2 Petitioner has noted the contradiction between the CPs listed criteria for resource lands which include "parcels of ten acres or larger" (agriculture) and "parcels are (sic) twenty acres or larger" (forest) and the allowable residential density permitted by the 1979 densities shown on the Official Maps. Petitioner has never argued that such parcel sizes were inappropriate for SJC. They take into consideration the smaller scale of the islands. Again however, the 1979 densities which govern a property owners ability to subdivide are at crossed purposes to the designation criteria in the CP and the goals of GMA.
10. Respondent concedes "that redesignation of the densities in the area east of Friday Harbor known as Pear Point/Turn Point may be appropriate", and "prefers to await the Boards ruling on these appeals before beginning the task of reconsidering the densities in areas surrounding the Town". (SJC Brief pg. 24, line 23)
10.1 This area is characterized by a mix of 1 du/half acre and 1 du/2 acres adjacent to a UGA. Petitioner has claimed this is merely one example of extensive urban sprawl densities in rural lands. See Official Maps to find 1 du/2 acre densities abutting activity centers such as Eastsound Village, Orcas Village, and Deer Harbor. Petitioner pleads, however the Board may find regarding Friday Harbor and Pear Point/Turn Point, that the Board apply its decision to all other areas in SJC where urban sprawl densities abut activity centers.
11. Respondent notes that the Act provides "local governments the ability to consider local circumstances and use their discretion in planning for growth". (SJC Brief pg. 24, line 4)
11.1 RCW 36.70A.070(5)(a) provides that "Because circumstances vary from county to county, in establishing patterns of rural densities and uses, a county may consider local circumstances, but shall develop a written record explaining how the rural element harmonizes the planning goals in RCW 36.70A.020 and meets the requirements of this chapter. Respondent has not "shown its work". A mere statement of reasons or supposed reasons is not sufficient to meet this requirement of GMA; there must be evidence in the record for the plan to be upheld. (Sky Valley, # 95-3-0068c).
12. Respondent acknowledges that "Petitioners also allege that the County has failed to comply with the goals of encouraging development in urban areas and reducing sprawl in rural areas. RCW 36.70A.020(1) and (2)" and states "The Countys intent is set out in goal three of the CP: Direct high density residential and mixed use development into activity centers to prevent sprawl and relieve growth pressure in the surrounding rural areas."
(SJC Brief pg. 25, line 5)
12.1 A goal is wonderful. However, "RCW 36.70A.020(1) and (2) [i.e., encourage development in urban areas and reduce sprawl in rural areas] operate as organizing principles at the county-wide level. Thus, they have not only a procedural dimension, but also direct a tangible and measurable outcome." (Pg.1183, Case No. 95-3-0039)
12.2 However successful the Countys intent with respect to"direct(ing)" civic services, churches, and educational facilities development into activity centers (see below), such development has occurred in areas allocated for high density residential development. As a consequence, based on the 8 du/acre (permitted outright) or 12 du/acre (with affordable housing bonus) allowable density on Village Residential land (Index #220158 thru 220247), between 262 and 306 potential dus have been eliminated within the Eastsound activity center. (calculations attached as Exhibit "A").
12.3 Petitioner claims that the principal threat of rural sprawl is that of residential development. The tangible and measureable outcome of the Countys policy to retain the 1979 densities has been the opposite of encouraging development in urban areas and reducing sprawl in rural areas; rather, the net effect is a reduction of residential development potential within the activity centers. Repondents mindset of being locked into the 1979 densities precludes the activist-role required by GMAs use of the verbs "encourage" and "reduce" as in encouraging development in urban areas and reducing sprawl in rural areas. RCW 36.70A.020(1) and (2).
13. Respondent claims that "The only UGA in the County is the Town of Friday Harbor which is a separate jurisdiction. The other islands have no urban growth area, therefore the County has identified villages and hamlets as appropriate areas for more intense rural development as provided by RCW 36.70A.070 (5)(d)(i)." (SJC Brief pg. 25, line7)
13.1 Petitioner has claimed that the Eastsound Village Activity Center is a de facto UGA by GMA standards. Reference to the Eastsound Subarea Plan (Index #220158 thru 220247)
shows that Eastsound has wastewater treatment and water services, paved streets with curbs, sidewalks and stormwater sewers, an airport with scheduled airline passenger, air freight, and overnight express service, a marina, fire protection, a 30,000 sq. ft. grocery store, numerous commercial enterprises, transient accomodations, motion picture theatre, restaurants, gas stations, office/retail buildings, library, a performing arts center, public and private schools, churches, medical clinic...the list goes on...in short, all the services normally provided by a small town with the exception of a municipal government. The "special circumstances" of Eastsound being on an island separate from the Countys only designated UGA and thus functioning as the sole commercial and civic center for the Countys largest island reinforce Petitioners claim that with respect to meeting the demands of GMA, Eastsound must be treated under GMA as a UGA.
13.2 Lopez Village (on Lopez Island, the third largest island in SJC) has the equivalent attributes on a slightly smaller scale.
13.3 The point here is that Eastsound and Lopez Village are not mere rural crossroads, and whether the CP calls them "UGAs" or not, given their characteristics, GMA requires them to be treated as such. Even in the Ferry County case cited by Respondent above (EWGMHB #95-1-0010), the Eastern Board held that "RSAs (Rural Service Areas [characterized by a significantly lower level of commercial and civic services than Eastsound and Lopez Village]) are urban growth areas in everything but name...", that they "should be considered in the same context.," and that "the proposed RSAs..., to accomodate new growth, must be guided by many of the same requirements as envisioned for UGAs. Those requirements are found in RCW 36.70A.110."
13.4 The Eastern Board went on to quote RCW 36.70A.110(1), (2), and (3) in their entirety, which include the requirements that the RSAs "shall permit urban densities" and added the caveat that, "To meet this provision of the law, Ferry County must establish defined boundaries for any RSA." The Eastsound activity center contains within it land serviced by sewer and water mains with development limited to nominally rural densities of 1 du/5 acres, and outside its boundaries are large areas with a density of 1 du/2 acres which fail to define the village and invite sprawl. See Official Maps. Petitioner has previously briefed that adherence to the 1979 densities precludes compliance with RCW 36.70A.110(1), and (2).
14. Respondent errs in claiming that "contrary to Petitioners assertions, County policies would not allow a 40 acre parcel with a 5-acre density designation to be divided into 8 five acre lots each one of which could clear one acre for a homesite. Rather the County would require that 80% of the resource be left intact and the development be clustered on no more than 20% of the land." (SJC Brief pg. 27, line 9)
14.1 Repondent makes this claim without citing authority other than un-named or number-ed "County policies".
14.2 When briefing the referenced example, Petitioner quoted UDC Table 3.2, Note 15. (Exhibit "K" in Petitioners brief). Petitioner notes that subdivision of forest resource lands is also covered in UDC Section 7, Land Divisions, subsection 7.6, Subdivision and Short Subdivision Design and Development Standards, para. h., Standards for Agricultural and Forest Resource Lands which repeats verbatim Note 15 of Table 3.2.
14.3 Under the same heading, UDC 7.6, para. b., Clustering, states:
"The administrator shall encourage clustering of units and lots in land division proposals, and shall inform applicants of alternatives to standard land division. The Sanitarian shall consider an approved water system or a proven common well supply in lieu of individual wells on lots."
There is no requirement for clustering in the subdivision of resource lands, and significantly, the last sentence directs the Sanitarian to at least "consider" if not approve a common water system.
14.4 With respect to the requirement in para. "h" that non-farm or non-forest use be limited to 20 percent of the parcel area, nowhere does it state nor imply that, in the event of subdivision of a parcel, that the 20 percent be a contiguous area. It simply states:
"in the division of a parcel by any means, the allowable area for conversion of the parent parcel to non-farm and/or non-forestry use shall not be exceeded."
Thus, Petitioners example is accurate as briefed, and the CP and UDC are no barrier or defense to the subdivision and development of designated forest resource land such that when the 1979 Density Boundaries bequeath a density of 1 du/5 acres, five acre lots are permitted as long as no more than 20 percent of each lot is not related to forestry uses. Furthermore, residential development in resource lands is not dependent upon individual wells and may be served by a community water system. Clearly, this situation does not meet GMA requirements for the protection of forest resource lands.
14.5 Petitioner has confirmed all of the above by teleconference with the director of SJCs Planning Department, principal author of the CP.
15. Respondent claims that language in the CP describing rural and resource lands is consistent with the densities shown on the Official Maps, and that Petitioner is "attempting to turn general descriptive language into a mandatory provision". While citing CP 2.3.B.b.(1), Respondent furthermore claims the the language in the CP "describes the typical size of existing parcels". (SJC Brief pg. 28, lines 15-24)
15.1 Petitioner briefed this issue citing the Official Maps, CP Section 2.3, Land Use Designations, and a memorandum from the SJC Prosecuting Attorney to the SJC BOCC (attached to Petitioners brief and labeled, "Index # 170910"). This memorandum alerted the BOCC to the inconsistencies in the CP and its non-compliance with GMA in a manner which is comprehensive, comprehensible, and succinct; it was essentially ignored and the CP passed into law without further revision. (copy attached).
15.2 Respondent now comes before the Board and and claims that "criteria" are merely "descriptive language" of no real import with regard to permissible density of residential development in rural and resource lands, and furthermore claims that there is no inconsistency when that "descriptive language" runs counter to residential development densities permitted by an unrelated pattern of Density Boundaries. If "descriptive language" is the only language, it becomes by default, the defining language. If one cannot rely on what Repondent claims is "descriptive language", one is left solely with the 1979 densitites, densities which everyone must concede were not determined in accordance with the overall GMA mandates of managing growth and preventing "the inappropriate conversion of undeveloped land into sprawling, low density, development." [RCW 36.70A.020(2)]
15.3 The American Heritage Dictionary defines "criterion, -teria" as "A standard, rule, or test on which a judgement or decision can be based." Indeed, the goals and criteria for the various land use designations, when taken together, paint a picture and create a context for the uses and the nominal land areas required to support those uses within the intended designation. When viewed along with UDC Table 3.2 listing permitted and prohibited uses as well as the level of permit review required, parcel size is an obvious consideration.
15.4 Typical size of existing parcels is not at issue. Petitioner recognises that existing parcels within a designated area will vary; the issue is whether or not each designation category carries with it a nominal, minimal, or range of parcel sizes intrinsic to the designation; Petitioner relies on the stated criteria in the CP and GMHB decisions in his belief that the purposes of the various land use designations cannot be met if the land can be subdivided into parcels which, for example, may be only 40 percent of the low figure given in the definition. Petitioner claims the criteria for Rural Farm Forest , for example, which call for parcels "generally five to ten acres in size" cannot be met on a two acre lot. To argue that the ability to grow berries on 1- and 2.5 acre lots renders them "rural" within the mean-ing and objectives of the GMA, is preposterous. (Case No. 95-3-0039). Petitioner asserts that the CPs "descriptive language" defines the various designations; the densities permitted by the Official Maps subvert them as often as not. (Petitioners maps showing Inconsistencies between Allowable Residential Densities and Designations, Exhibits "G", "H", and "I").
15.5 The degree to which land can be subdivided is at issue, since low density sprawling
single family residential development in rural areas is the prevailing end use of rural subdivisions. No one in their right mind moves here to start a farming operation, buying land for 10 to 15 thousand dollars an acre, and thinks they will pay for the land, the equipment, and their living expenses on the crops they grow, unless theyre growing something, or ingesting something, illegal. (Petitioners PFR, Exhibit "B").
15.6 And finally,consistency is at issue, contrary to Respondents assertion that the issue "should be decided on its own merits and not as part of a theory of inconsistency." (SJC Brief pg. 29, line 15). A plan shall be an internally consistent document and all elements shall be consistent with the future land use map. (RCW 36.70A.070.). Petitioner interprets this to mean that language in the CP, whether considered "descriptive" or "defining," must be consistent with information conveyed by the Official Maps, particularly with respect to the GMA-critical issue of future subdivision and development of rural lands.
16. Respondent states that "in identifying forest and agricultural resource lands the County relied on selection criteria set out in the CP [at] section 2.3.C.4.a(i) and .b(ii). (SJC Brief pg. 27, line1)
16.1 RCW 36.70A.020(8) requires maintenance and enhancement of the forest industry. This provision requires encouraging conservation and discouraging incompatible uses. (WEAN v. Island Cty, #95-2-0063). SJC has taken some actions to further this goal. Its timber industry is supported by its citizens, who selected as the preferred alternative, a plan which includes resource lands. The County has designated resource lands, enacted DRs restricting conversion of but 20 percent to non-resource use of a parcel, enacted Right to Farm and Forestry provisions and includes in the CP policy 2.2.F.3 to "[d]evelop a sustainable forest management program for the forests of SJC". The SJC BOCC clearly had the authority to enact these resource lands designations. (Manke Lumber v. Diehl, 91 Wn. App.793, 1998).
17. Respondent states that "Although the density designations on the Maps are different in some cases than the selection criteria the County has adopted additional mechanisms for protecting these resources". The County has adopted "Right to Farm and Forest (sic) Provisions" in UDC 3.3.2. There is also a prohibition against incompatible uses (UDC 3.1 and 3.2) in resource lands, and standards for development on these special districts. UDC Table 6.2." (SJC Brief pg. 27, line 2-7)
17.1 Respondent is arguing here that it may apply high densities to resource lands because it has protected the resource lands in other ways. No buffering of resource lands is afforded by the DRs whether by regulation of uses on other lands or by assuring low residential densities in adjoining areas.
17.2 UDC 3.2 permits transient rental of residences or guest houses on resource lands themselves subject only to administrative consistency review for compliance with development and performance standards specific to the use. (UDC Table 3.2, Note 4). Such commercial non-forestry use is a form of more intensive rural development and must be limited and contained. (RCW 36.70A.070(5)(d)(ii); it is singularly inappropriate and a conflicting use within resource lands. The greatest threat to ong-term productive resource lands is nearby conflicting uses. (WEAN v. Island Cty, #95-2-0063). A DR which allowed 1 du/5 acres within resource lands did not comply and was declared invalid. (Diehl v. Mason, #95-2-0073)
17.3 The Right to Farm and Forestry provisions are helpful and may provide a measure of protection but only to those resource lands which may survive their lack of protection from inappropriate subdivision and development. As discussed above, Respondents brief mistakenly asserts that the DRs require clustering upon subdivision; this is simply not true. (SJC Brief pg. 27, line 8-13). Respondent notes that in cases this Board has decided, "the deciding factor" in whether clustering is an appropriate means of protecting resource lands from inapppropriate development "appears to be underlying densities".(SJC Brief pg. 27, line 19). Repondent goes on to urge that "as with densities in general the Boad should take into consideration the small size of the islands and the low productivity of the resource lands themselves." The economic viability of resource lands cannot be considered in their designation; they are to be preserved. (Achen v. Clark County, #95-2-0067, May 11, 1999).
18. Respondent claims, "Without recognizing the small scale of forestry and farming in the islands, it is not possible to plan for the protection of this resource." (SJC Brief pg 27, li. 22)
17.1 Clearly SJC cannot have resource lands with minimum parcel sizes of, say, 100 acres, in minimum blocks of, say, 1000 acres, and ringed by buffering parcels of, say, 10 acres. However, more meaningful protection is possible and required than is afforded under the CPs present densities and DRs. Protection is mandated within the constraints that exist.
Petitioner recalls a time during the 1992 presidential campaign when the phrase "Its the economy, stupid!" entered a critical mass of our collective consciousness and the race was all but decided. Petitioner pleads for the Board to send an equivalent message to San Juan County. This brief demonstrates that those pre-existing and un-examined 1979 densities lay at the root of multiple aspects of the SJC CPs non-compliance with the Act.
No amount of squirming can alter the fact that "Its the 79 densities...".
20. Parties Served: A declaration of Service accompanies this brief.
Dated this 8th day of June, 1999
Fred R. Klein
PETITIONERS REPLY BRIEF EXHIBIT "A"
NOTE: The following information was presented, verbally and in writing, to a joint hearing before the SJC Board of County Commissioners and the SJC Planning Commission on January 19, 1996. (I continue my search for the correct index #!)
RE: Reduction of Residential Development Potential within Eastsound Village
"Examples of development activity and land use actions which reduce the potential number of residential lots in Eastsound include:
* the Lummi Tribe purchase of Madrona Point which eliminated 88 potential homes.
* development of public facilities on Village Residential land (8-12 du/ac.) have eliminated numerous potential residential lots; for example, the Orcas Library (on 1.65 ac.) eliminated 13 to 20 homes, Island Market (on 2.5 ac.) eliminated 20 to 30 homes, the Medical Clinic (on 2.0 ac.) eliminated 16 to 24 homes, and the new Catholic church on (1.6 ac.) eliminated 12 to 19 homes.
* OPAL chose to build only 18 of 56 allowable homes on 7+ acres, and their current project envisions between 21 and 26 rather than the 40 allowable.
* current plans to relocate the fire station, create a new infant/toddler center, build another new church, and the senior center on a total of approx. 6 acres of VR land will eliminate the potential of from 48 to 72 homes.
These examples alone total a reduction of potential residential development in Eastsound of between 262 and 306 homes; they are not isolated examples but rather indicate a continuing trend which both eats up residential development potential.
In addition, although the new "Service Park" designation continues to allow single family homes, its emphasis on business development and the number of existing commercial service businesses, will, I believe, substantially reduce the potential for future residential subdivisions within this 75 acres, and its ultimate build-out will be reduced significantly below the existing allowable of 2 homes per acre."
June, 1999 Post Script: The trend continues with the following projects:
* the Breadeau teen center on 1.0 acres of VR land eliminates 8 to 12 homes.
* the Orcas Christian School on 3.3 acres of VR land eliminates between 26 and 39 homes