Case No. 99-2-0010c







ON NOVEMBER 14, 2000

San Juan County







Joe Symons

3222 Point Lawrence Road

Olga WA 98279


Fax 360-376-2626

Notation system for references:

Note: all references unless otherwise indicated refer to the San Juan County (SJC) Revised (2000) Comprehensive Plan (CP). A Table of Authorities references all documents by Index number referred to in the brief other than the CP. In a telephonic conversation with the Board, SJC and all participants on October 19, 2000, SJC acknowledged that it was likely that it would not have the Index ready for distribution in a timely manner useful to participants challenging SJC. SJC has delivered to Participant some documents that Participant assumes have been indexed based upon a previously used SJC indexed document pagination style, although no interim copy of the Index was supplied. Whenever Participant references such documents, the pagination number (presumably Index number) is used. Consequently, relevant documents not known to Participant to be in the index are copied and attached as exhibits in an Addendum to this Brief.

Table of Contents

Table of Authorities *

1. Introduction: 1

2.0 Standard of Review: 4

3.0 Argument: 4

3.1 The CP downzoned invalidated rural areas to 1 du/5 acres
without consideration for consistency with the Vision Statement.

3.2 The CP made no attempt to achieve a mix of rural densities,
which is contrary to GMA.

3.3 Insufficient references to Vision Statement in public documents
during the remand period demonstrate that the record is inadequate.

3.4 Information on the buildout populatin was not available prior
to BOCC hearings, which is contrary to GMA requirements

3.5 The Planning Department report on similar communities,
which describes recommended policies to achieve a vision similar
to SJC's, is ignored by the BOCC, which demonstrates SJC's
disregard of the FDO directive.

3.6 Policy implications of responses to SJC public survey,
supportive of no further subdivision in SJC, re ignored by BOCC
despite FDO findings regarding densities and Vision Statement.

3.7 SJC, despite specific FDO notification, claims guest houses
have zero density impact contrary to its own Planning Department report,
the Planning Commision findings, common sense and
the State Department of Health.

3.71 Occupancy assumption, used to assign density,
based on inadequate data.

3.72 Guesthouse/SFR construction-ratio forecast is based
on inadequate data and questionable assumptions,
and therefore does not meet the standard articulated in the FDO

3.73 Guesthouse water useage assumption by SJC
incompatible with DOH policy

3.74 Argument that legal definition of family thoroughly underpins
guesthouse zero-impact position is specious

3.8 Contradictions within the Land Use Element’s Policy
Section 2.2.A demonstrate confusion and inadequacy inherent in density
policy, illustrating SJC’s failure to respond adequately to the FDO.

4. Summary *

5. Relief Sought *



Table of Authorities


Page numbers of items that have been indexed by SJC are shown in the text of the Brief in brackets, e.g., [244498]

The following citation style is also used: (document number. line number/numbers). For example, in citing the 1999 Final Decision and Order (FDO), the reader might see (FDO.13.17-19). This citation would lead the reader to lines 17 through 19 on page 13 of the FDO.

Numbers shown below, immediately following the indexed item, are page numbers and indicate the location of the reference in the Brief.

Electronic Documents

This Participant has a copy of the SJC Geographical Information System (GIS), which contains information used to create maps and derive statistical summaries. Stricly speaking, the GIS information is in the form of datafiles which are processed by software produced by ESRI entitled Arcview. Information from this system was used to produce, in conjunction with Azous Environmental Sciences, the maps and statistical information associated with those maps, presented in the text of the Brief and shown in Exhibit #19.

In addition, I have a copy of the SJC Assessor's Office Tax Parcel Number (TPN) database, current as of July, 2000. Information from this database was used to produce Exhibit #20 and statistical summaries presented in the text of the Brief. The database contains several fields for each record; each record represents a unique tax parcel, and the database contains all tax parcels in the County.

By reference, I include all datafiles and associated software described here for both the GIS and Assessor's Office systems as part of the record upon which my Brief is constructed; given the nature of the electronic data, it is impossible to include it as an Exhibit.



9/14/2000 Planning Department memo, 8

98-2-0023c, the Compliance Hearing Order on FDO Remand, Issues 5,7,9.13, and 17, 9

April 19, 2000 public survey, 12

Countywide Buildout Estimates, 15

December 3, 1999, a memo from the Planning Department, 11

GMA Survey, 12

GMBHO response options, 11

Planning Commision Findings, 27

Planning Commission’s report, 12

Planning Department Memo dated 9/14/2000, 5

Reader’s Guide to the Proposed San Juan County Comprehensive Plan, 12

Resolution 103-2000, 5, 7, 14, 15, 16, 23, 29, 30, 34

Resolution 104-2000, 33

Socioeconomic Impacts of Growth Pressure in Selected Seasonal/Resort Communities

Document Analysis and Interview Summaries Aspen Colorado and Nantucket, Massachusetts, 16

staff reports of April 14, 2000 and May 19, 2000, 12



Statutes and Regulations

RCW 36.70A.020, 13

RCW 36.70A.030(14), 13

RCW 36.70A.070, 14

RCW 36.70A.070(5)(a), 13

RCW 36.70A.070(5)(b), 7

RCW 36.70A.320(4), 4

WAC 365-195-305, 14



San Juan County (SJC), i

Growth Management Act (GMA), 1

Official Maps (OM), 1

Western Washington Growth Management Hearings Board (WWGMHB), hereinafter (Board), 3

Accessory Dwelling Unit (ADU), 29

Board of County Commissioners (BOCC), 2

Comprehensive Plan (CP), i

Equivalent Residential Unit (eru), 29

Final Decision and Order (FDO), 1

dwelling unit (du), 30

Single Family Residence (SFR), 5


1. Introduction:

The San Juan County (SJC) Comprehensive Plan (CP), revised in October 2000 to address the issues set forth by the WWGMHB in its July 21, 1999 Final Decision and Order (FDO), continues to be in violation of the Growth Management Act (GMA). SJC has failed to "show its work" per RCW 36.70A.070(5)(a). The CP remains, as concluded in the FDO, internally inconsistent. I request that parts of the CP be invalidated and remanded to the County for further work.

This brief sets out the following:

a discussion of the standard of review, followed by an analysis section which contains:

1) an examination of the population data derived from the Official Maps (OM), in which SJC’s primary response to the FDO was to simply decrease densities on all rural lands with a density greater than 1 du/5 acres to 1 du/5 acres, a response which SJC’s Planning Department characterized as promoting "an overall pattern approaching sprawl";

2) an examination of the data derived from the OM that demonstrates SJC’s disregard of the requirement to create a mix of rural densities in order to preserve rural character;

3) an examination of the documents produced by SJC during the remand period, demonstrating the absence of any reference to the Vision Statement of the CP as well as the absence of any analysis of the consistency between the buildout population implicit in the OM and the Vision Statement;

4) a discussion of Planning Department (often referred to later in this Brief as "staff") memos and SJC web site information demonstrating that SJC did not produce, much less make public, statistical information derived from the OM that describe the buildout population inherent in the CP until a date after the final set of Board of County Commissioners (BOCC) hearings had concluded. Even as this Brief is being written, SJC has neither produced nor made public statistical data on the mix of rural densities inherent in the OM.

5) a discussion of information on similar communities, which was presented in a report commissioned by the Planning Department, and which spoke to the policies required to preserve rural character and related qualities described in the Vision Statement;

6) an examination of the public survey of density options conducted by SJC, in which the majority of respondents chose, among 3 offered density options, the option that would have resulted in no further subdivision of rural lands and shorelines in SJC, a majority opinion which was disregarded by the BOCC;

7) an analysis of the staff report on Guest Houses, in which SJC concluded that Guest Houses, although comprising almost 30% of all parcels with residential structures, have zero impact on density or resource consumption;

8) a review of the contradictions present in the policy section of the Land Use element of the CP.

A principal argument of this Brief reiterates the position I took last year that the CP suffers from an internal inconsistency between the buildout population derivable from the densities described by the OM and the Vision Statement. This inconsistency still exists. The Vision Statement describes the long term future that we as a community have crafted and approved for San Juan County. The Vision Statement conveys a sense of the future very much bound up in preserving a historically familiar quality of life that is rural, emphasizing the feeling of stewardship, visual openness, and natural landscapes. The Vision Statement describes an aspiration toward a future community which would be small, rural, slow paced, quiet, peaceful, friendly, and safe (i.e., pretty much like it always has been). For a fuller discussion of the qualities of the Vision Statement, the reader is directed to 1999 Brief (B.27.34) thru (B.30.14).

SJC concedes that the Vision Statement is the highest order policy statement of the CP:

The County-wide Vision Statement was formally endorsed by the Board of County Commissioners in December 1993. The Vision Statement (Table 1) is the foundation upon which the entire Comprehensive Plan is based. (emphasis mine). CP Introduction, page 1, Section 2 "Vision for the Future" (the full text from the Brief is at B.27.11-31)

(This excerpt from the Introduction was not changed in the 2000 CP from the 1998 CP.)

All other CP components, such as the Land Use element and the Official Maps, are thus subordinate to the Vision Statement. Supportive of this argument, the Western Washington Growth Management Hearings Board (WWGMHB), hereinafter (Board), stated:

"Intervenor Symons correctly pointed out that the maps were also significantly inconsistent with the Vision Statement set forth as the guiding principle of the CP. These inconsistencies, caused by the retention of 1980 densities, do not comply with the GMA." (FDO.11.1-4)

I interpret the Board finding cited here to mean that the Vision Statement–with regard to its implicit description of the buildout population of SJC and therefore of the density component of the OM from which such buildout population can be calculated:

a) is quantifiable; and

b) is a standard against which the CP must be measured and held accountable.

The buildout population implicit in the OM of the 2000 CP remains significantly inconsistent with the unchanged Vision Statement. SJC chose to ignore the FDO’s conclusion regarding this consistency issue, and, consequently, the CP remains out of compliance with GMA.

2.0 Standard of Review:

SJC is currently under an invalidity order. As such, SJC has the burden of proving that it has made sufficient changes to its CP to lift the order:

A County or city subject to a determination of invalidity made under RCW 36.70A.300 or 36.70A.302 has the burden of demonstrating that the ordinance or resolution it has enacted in response to the determination of invalidity will no longer substantially interfere with the fulfillment of the goals of this chapter under the standard in RCW 36.70A.302.(1).

RCW 36.70A.320(4)

3.0 Argument:


3.1 The CP downzoned invalidated rural areas to 1 du/5 acres without consideration for consistency with the Vision Statement.

The FDO (pg 8, line 23) found that:

Because almost none of the rural designations are truly rural and in many cases constitute urban growth, we find that the density allowances on any and all of the rural zoning classifications fail to comply with the GMA. Additionally, for the same reasons we find that all zoning classifications or basic density allowances that allow for lots less than 5 acres in size in any rural designated zone substantially interfere with goals 1,2, 8,9,10,12, and 14.

Shakespeare comes to mind when characterizing the process by which SJC responded to the FDO; I’m tempted to say "all sound and fury, signifying nothing". After a public survey, planning commission review, and multiple sets of BOCC hearings, the final decision, without regard to public input, was to implement the BOCC’s original idea: simply downzone those rural areas under the invalidity order to 1 du/5 acres.

This response by SJC is, essentially, option "A" offered to the public by SJC during the spring of 2000. Table 3 of Planning Department Memo dated 9/14/2000 to the BOCC [Exhibit # 2] shows a total county population, with maximum density bonus, of 57,559. The guest house policy from the CP’s Land Use Element, unchanged from the 1998 CP, allows every residential parcel to have a guest house. This doubles the number of structures in the county, or, conversely, upzones density throughout the county by 100%. This guest house policy is not reflected in the density designations on the OM.

SJC argues that the guest house policy does not "double density" ; indeed, providing no analysis, they simply state, as discussed further in section 3.7 below, that guest houses, where-ever located, have zero impact on either density or population. Along with other participants, I argued before, and again here, that the unrestricted vesting of a guest house for every single family residence (SFR) doubles the potential population. Consequently, the theoretical maximum buildout population for SJC under the revised 2000 CP is twice the 57,559 population, or 115,118. By comparision, this population is close to OFM’s 2000 population projection for Skagit county (106,454). The 2000 CP does not discuss how this population is consistent with the Vision Statement, much less explain, analyze, or reconcile such population in any document produced by SJC during the remand period.

SJC may nevertheless offer BOCC Resolution 103-2000 (Legislative Findings), signed October 2, 2000, which mentions the Vision Statement multiple times, as evidence that SJC considered the consistency of this population density with the Vision Statement. To evoke the Vision Statement in the legislative findings when it was never discussed during the remand period (see section 3.3, below) borders on the doublespeak that Orwell made famous in 1984. These references to the Vision Statement are simply declarative. As will be shown, there was no work by SJC on this issue, so there was no record. Nevertheless, the BOCC by fiat declared that various components of the CP "are consistent with GMA goals and the Vision Statement" (see, for example, references to having met the Vision Statement standard in 103-2000 B.1.a, b, d, e, f, g, h, i, j, l, m [244496-244497] and B.2, [244498]).

Few people would argue that for a county of 175 square miles, the smallest in the state in terms of land area (FDO.2.4-6), a buildout population of about 115,000 is consistent with a Vision Statement that calls for staying small, rural and prides itself on having winding, unpaved roads. Certainly, as will be shown below, the residents of the County would not make that argument. Indeed, as will be shown, they were never told how big the County could get. Pertinent (although incomplete) information was only made available after the final set of BOCC hearings, and then only if specifically requested from the Planning Department.

3.2 The CP made no attempt to achieve a mix of rural densities, which is contrary to GMA.

GMA is focussed on two significant goals: concentrate development in urban areas and reduce sprawl in rural areas. Preservation of rural character is a critical component of this latter goal. Rural character is powerfully influenced by variety of landscapes and a sense of randomness, as contrasted with uniformity, in the size and location of structures within a visual environment that is largely vegetative (i.e., not man-made). This in turn may be approximated by the requirement that the rural part of a county have a variety of rural densities.

SJC is thus held to RCW 36.70A.070(5)(b), which states:

The rural element shall permit rural development, forestry, and agriculture in rural areas. The rural element shall provide for a variety of rural densities, uses, essential public facilities, and rural governmental services needed to serve the permitted densities and uses...

The FDO reminds us that:

Because almost none of the rural designations are truly rural and in many cases constitute urban growth, we find that the density allowances on any and all of the rural zoning classifications fail to comply with the GMA. (FDO.8.23) to (FDO.9.1)

In response to the FDO, the legislative findings in Resolution 103-2000 quietly inform us of the extent of downzoning performed by SJC:

b. The Land Use Element and the Official Maps of the CP have identified a Rural Residential designation which includes some areas where land has been subdivided and developed to densities greater than generally accepted rural densities. By the official maps adopted by this action, the residential density designations of these areas have been changed to prohibit further subdivision for densities of greater than one dwelling unit per five acres except in designated areas of more intensive rural development. pg 8 [244500]

[and further:]

9. Residential densities in the rural land-use designations are changed by the official maps adopted by this action where densities exceeded one dwelling unit per five acres in rural lands, one dwelling unit per 10 acres in agricultural resource lands, and one dwelling unit per 20 acres for forest resource lands. Separate shoreline densities in the rural areas have been eliminated, and shoreline areas reflect the densities of upland portions of the parcel. pg 8 [244500]

Yet earlier (page 6, item #2) in the Resolutions, SJC announces:

...The CP provides for a variety of rural densities and uses, identifies and provides for the facilities and services necessary to serve the permitted densities and uses, and designates the facilities that are to be considered "essential public facilities." In addition to allowable densities, open space and other conservation easements, and other voluntary, incentive-based programs are identified as appropriate means to preserve rural character. The CP thus meets the requirements of RCW 36.70A.070(5)(b) for rural development and is consistent with the Vision Statement. (emphasis mine) [244498]

Because of the apparent desire to minimize downzoning, SJC only downzoned those parcels invalidated by the WWGMHB because of their non-rural densities. No other rural parcels were downzoned. The resulting "mix" of rural densities was simply what remained on the books after the invalidated parcels were downzoned to 1du/5 acre.

Table 2 of the 9/14/2000 Planning Department memo [Exhibit #2] on density shows that 80% (9472 of 11793) of all existing rural parcels–those designated 1 du/5 acres–have an average parcel size of 4.7 acres. Two points should be confirmed here. First, if 80% of the existing rural parcels carry a 1 du/5 acre density designation, the existing rural mix is dominated by 5 acre parcels. Second, the average size of those existing parcels is less than 5 acres. If we add in the parcels designated 1 du/10 acres and 1 du/15 acres, we have 98% of existing rural parcels with an average parcel size of 5.44 acres. These figures do not reflect the rural mix at buildout; rather, the figures in Table 2 describe the existing rural mix based on the OM. We can expect that as lands in these density categories are subdivided, the number of parcels will increase. The total number of acres will, however, stay the same, so the average parcel size will fall.

An example of this phenomenon is presented visually in Exhibit #19. A 3184 acre section of Orcas Island, entirely designated 1 du/5 acres, was chosen for a study on the efects of subdivision. Page 1 of Exhibit 19 shows the study area in yellow. Red lines indicate existing parcel boundaries. Page 2 of Exhibit 19 has 2 maps. The first (top) map shows the current parcel divisions, whereas the second (bottom) map shows what the parcel map would look like if the parcels which are 10 acres or greater in size were subdivided to their 5 acre limit. 80 of the total 365 parcels in the study area are in this 10 or greater acre category, compriseing 1900 of the 3184 acres, or almost 60% of the study area.

If subdivided to the 5 acre density limit, these 1900 acres would produce an additional 300 parcels (1900/5=380 less 80–the original 80 parcels–leaving a net increase of 300). This increase can be readily observed on the bottom map. 142 of the 365 parcels (38%) are already non-conforming in that they are less than 5 acres in size. Comprising 396 acres (or 12% of the acreage), the average size of these non-conforming parcels is 2.78 acres. When the subdivision dust settles, there will be a total of 665 parcels (365 +300), for an average parcel size of 4.78 acres (3184/665), down from the current average parcel size of 8.74 acres (3184/365).

It is important to distinguish SJC's "variety of rural densities" situation from that of Whidbey Island. In 98-2-0023c, the Compliance Hearing Order on FDO Remand, Issues 5,7,9.13, and 17, the WWGMHB noted:

Unfortunately, Island County appears to be in the unique and sad situation where there are no longer blocks of rural lands to be saved from the onslaught of 5-acre development. pg 17

Such is not the case in SJC. Exhibit #20 shows a list of all parcels in the County that are 20 or more acres in size (regardless of island or of density classification). This list shows that 1146 parcels (out of a total of 16383 parcels), or about 7% of the parcels in the County, represent 58,424 acres (out of a total of 104017 acres), or about 56% of the acreage of the County.

A breakdown of the data describing these larger parcels is shown in the following table:


(size in acres)

Number of Parcels

Total Acres

Acreage % of county total

20-39.99 acres








80 plus








The potential for a mix of rural densities that preserves rural character thus exists in SJC and distinguishes it from Island County. That potential could be quickly destroyed as those larger parcels are subdivided.

The Western Board noted in 98-2-0023c (Oct 12, 2000):

If Petitioners have shown in the record that a pattern of significant blocks of large lots remains, we have consistently found that the GMA requires those be protected from the inappropriate conversion of this undeveloped land into sprawling, low-density development. Pre-existing parcelization of surrounding lots may not be able to be undone, but that is no excuse to perpetuate the past with continued reliance on consumptive land use patterns. It may not seem "fair" to those who have not yet subdivided their land, but how is GMA ever going to thwart sprawl, preserve NRLs, protect CAs etc., if everyone must be allowed to do what others did before the Act’s passage? This has been our previous interpretation of the Act and will continue to be. pg 16/17

SJC's OM is dominated by an existing rural density designation, and reality, of 1du/5 acres. The average acreage per parcel at buildout may be well below 1 du/5 acres. This can hardly be described as a mix of rural densities. Furthermore, there is no written record explaining this mix, much less harmonizing it with GMA planning goals. As explained above, Resolution 2’s [244498] conclusory statements cannot constitute an adequate record. The mix was a happenstance result of a pre-existing density distribution. It was not created. It was what was left on the ground after the minimum FDO-obligatory downzoning occured.

The BOCC lifted the moritorium it had imposed on land division when it adopted the CP in early October, 2000. Lands not in invalidated areas are now free to be subdivided.

3.3 Insufficient references to Vision Statement in public documents during the remand period demonstrate that the record is inadequate.

There is virtually no mention of the Vision Statement in any documents produced by SJC during the remand period. The information in this section documents that absence. The FDO instructed SJC to consider the inconsistency issue between the OM and the Vision Statement. GMA requires a written record. The absence of a record implies the County did not consider this inconsistency issue. As such, SJC remains out of compliance.

On December 3, 1999, a memo from the Planning Department [Exhibit #5] was published outlining the County’s response to the FDO. Item 2.A (Density) states in part:

The decision of the GMHB is that these densities perpetuate urban and suburban sprawl, are inconsistent with the Vision Statement, and substantially interfere with the fulfillment of the GMA planning goals.

Steps are listed in this memo to rectify this problem. Those steps do not mention the role of the Vision Statement.

Participants were invited to a Planning Department meeting held on February 10, 2000 in which the outlines of the County’s response to the FDO was presented. A copy of a Planning Department outline to be presented to the BOCC was given to Participants [Exhibit #4]. The outline does not mention the Vision Statement.

On March 6, 2000, the Planning Department issued a memo to the BOCC regarding GMBHO response options [Exhibit #6]. There is no mention of the Vision Statement in this memo. Regarding rural lands, the basic components of option "A" were presented, as discussed in section 3.1 above. Commenting in the Issues section of this part of the memo, the Planning Director said:

Existing average parcel size in the Rural areas (including shorelines, not including resource lands) is 6.05 acres. While there are a number of large parcels, some very large, as an average this represents a parcel pattern that, as land is further divided, will approach a far more suburban than rural character.

[regarding Option A, the Planning Director stated:]

This promotes an overall pattern approaching sprawl, it may not meet legal tests for addressing this problem with a mix of rural densities.

[regarding Option C, in which there would be no further subdivision, the Planning Director stated:]

This supposes that a build-out population of 32,300, projected from existing parcels (55% now undeveloped), is as much as the county can absorb and still retain its rural character and quality of life.

On April 8, 2000, SJC published a survey in the form of a local newspaper supplement describing "Options for Response to the Growth Management Hearing Board Order" [Exhibit #7]. Options A, B and C were presented for the public’s review and comment. No mention of the Vision Statement was made in this publication, which was the first, and only, information piece made broadly available to the public about the County’s response to the FDO.

The staff reports of April 14, 2000 and May 19, 2000 [Exhibit #8 and #9, respectively] do not mention the Vision Statement. The April 19, 2000 public survey questionnaire [Exhibit #10] conducted by SJC, and responses to which were tallied and made available to the public as of 5/18/2000[Exhibit #11], does not mention the Vision Statement. The Reader’s Guide to the Proposed San Juan County Comprehensive Plan, published by SJC in August, 2000[Exhibit #12], does not mention the Vision Statement.

The "Findings and Recommendations" of the Planning Commission, published in May, 2000[Exhibit #13], mentions the Vision Statement twice:

Based on the number and sizes of existing undeveloped parcels in the Rural areas and the extent of area currently assigned densities of 5 acres per unit, the visual and physical result of 5 acre development patterns, even if clustered, will be a significant loss of rural character "in which open space, the natural landscape, and vegetation predominate over the built environment." This is inconsistent with the Vision Statement and does not serve the goals of the Growth Management Act for the protection of rural lands from "the inappropriate conversion of undeveloped land into sprawling low-density development." (RCW 36.70A.030(14)) (pg 6, item #5)


Option A would not be GMA-compliant because it does not provide for a diversity of parcel sizes in rural lands. Option B offers very limited diversity of parcel sizes which would not likely be GMA-compliant. Our resource lands should not have to carry the burden of providing the only larger parcels in our county. Options A and B do not support the rural character and goals of our Vision Statement...(pg 7 item 12)


These observations and recommendations of the Planning Commission were disregarded by the BOCC and clearly support the arguments made in this Brief that the CP is inconsistent with the Vision Statement.

My point is simple: except for a brief mention in the Dec 3, 1999 memo of the FDO’s finding regarding the consistency issue vis-á-vis the Vision Statement, the record during the remand period, save 2 references by the Planning Commision supporting this Brief, is devoid of the phrase "Vision Statement ", much less any discussion of the Vision Statement's importance or relevance. Certainly no work was produced by County staff evidencing an effort to harmonize the Vision Statement and the densities inherent in the OM pursuant to RCW 36.70A.070(5)(a), which states:

"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."

Notwithstanding the demonstrated lack of material in the record, Resolution 103-2000 asserts:

Neither population numbers nor population density alone determines the achievement or failure to realize the vision of any community. Not one part, but the sum of the parts of the Comprehensive Plan, together with the implementing regulations, demonstrates San Juan County’s progress in efforts to realize our Vision Statement through an extensive public process. pg 10 [244502]

GMA evaluates results, not "efforts". The vision of the community cannot be realized "through an extensive public process" if that vision is never mentioned, much less discussed.

Indeed, as will be shown in section 3.4 following, data on the buildout potential inherent in the OM was not available until after the final round of BOCC hearings in Sept, 2000 had commenced. Consequently, it would have been impossible for the Planning Department to produce a written record harmonizing the densities (and their inherent population) with the Vision Statement prior to the development of such data.

The bottom line is that SJC ignored the FDO and GMA on this issue and continues to treat the Vision Statement as feel-good window dressing to the CP. SJC did not produce a written record. They did not even try.

3.4 Information on the buildout population was not available prior to BOCC hearings, which is contrary to GMA requirements

SJC is held to GMA standards regarding components of required CP elements:

The land use element shall include population densities, building intensities and estimates of future population growth " (emphasis mine). RCW 36.70A.070

The reader is also referred to WAC 365-195-305 Land Use Element requirements (b), which requires a county to offer an estimate of future population growth. Note that the GMA does not limit the estimate of future population growth to the planning period. Consequently, this estimate should be interpreted to mean the population growth at buildout.

On September 11, 2000, the BOCC scheduled the first of 3 final hearings on the CP (one in each political district), to give the public an opportunity to weigh in. The first hearing was held in the Madrona Room at Orcas Center. In the absence of population figures calculated from the OM, I made an attempt to calculate the buildout population using data from various staff reports. My estimate, submitted to the BOCC at the time of hearing, is attached [Exhibit #14]. My overall buildout population estimate, based on my understanding of the data buried in a variety of staff reports, came to–including the guest house policy–107,624.

The next day, Planning Department staff put together a memo giving preliminary buildout figures, and on September 14, 2000, after the final hearing had concluded, published a memo entitled "Countywide Buildout Estimates" [Exhibit #2]. The buildout population reported in this memo, adjusted by Participant to reflect the "guest house" policy, came to 115,118.

The September 14, 2000 memo had not been posted on the web as of October 13, 2000 [see Exhibit #16] nor was the memo available at the Orcas Island Library, an official distribution site for comp plan information, as of October 16, 2000.

Once again, hoping perhaps that no one would check the record, Resolution 103-2000 weighs in with:

7. The Land Use Element classifies lands as activity centers, rural districts, resource lands and special lands. The goals and policies of this element specify the criteria that were used to qualify lands for each land-use designation, and provide guidance for the appropriate types of uses and activities that may occur in them. The Official Maps of the CP assign these land-use designations to the land base of the County. Appendix 1 provides the background population projections and buildout analysis for the policies of the Land Use Element and the land use designations of the Official Maps. pg 8 (emphasis mine) [244500]

Perhaps Resolution 103-2000 was written so hastily that no one bothered to actually read it, hardly a confidence-building oversight. Appendix 1 of the CP was not changed in the 2000 CP. As shown in this section, there is no buildout projection data describing the remand revisions in the CP.

My point is that the Planning Department could not even begin to consider a written record harmonizing the planning goals vis-á-vis the FDO’s finding that the OM be consistent with the Vision Statement if they did not calculate the buildout data derivable from the OM until the final seconds of the game. That this data was available to the public only after the final BOCC hearings makes it appear that the staff were instructed to ignore, or certainly were not instructed to create, such a written record, much less make it available for public review. The hearings were over. Written submission deadlines for comments had expired. That there was no analysis of the Vision Statement’s quantifiability against which to compare the buildout population data simply confirms that as far as SJC appears to have been concerned, the Vision Statement was merely a sugar coating on a bitter CP pill they hoped the public, and the WWGMHB, would swallow.

3.5 The Planning Department report on similar communities, which describes recommended policies to achieve a vision similar to SJC's, is ignored by the BOCC, which demonstrates SJC's disregard of the FDO directive.

In the spring of 2000, the Planning Department commissioned a study entitled "Socioeconomic Impacts of Growth Pressure in Selected Seasonal/Resort Communities: Document Analysis and Interview Summaries Aspen Colorado and Nantucket, Massachusetts" which was published on May 22, 2000 [relevant parts are in Exhibit #17]. Three days later, Pat Mann, senior planner for SJC, published a staff report summarizing and introducing the Comparison Report [Exhibit #17]. The communities chosen by the consultants have many similar characteristics to San Juan County as well as many similar aspirations. The ‘vision’ of these communities parallels many of the qualities in the Vision Statement of the CP. The study hoped to learn how these communities compared to San Juan County, and perhaps learn from the mistakes, as well as the successes, that these other communities have had in maintaining or crafting their vision.

The May 25 staff report stated that:

Staff's expectation from this analysis was that the consultant might find some characteristic of the San Juan Islands that differentiated it from the situations in these communities that have transitioned to a dual market in which long-term residents and local workers are squeezed into narrower choices and disrupted lives. The report does not provide such hope for the San Juans. On the contrary, the similarities in size, scale, access, environment, and trends make us look very much like these communities as they were 20 to 30 years ago. The San Juans appear to be headed the direction of Aspen and Nantucket. (staff report, page 2)

Commenting on the preservation of rural character, the May 25 staff report noted that:

It is possible to retain many of the aspects of rural character over time while providing for substantially more population and development, provided that this development is strictly limited to tightly-constrained growth areas developed at urban densities. The European model of development, in which densely developed villages are surrounded by rural farmland and forest, clearly illustrates this potential. (page 3)

Rural land and rural character will only be available if substantial amounts of rural land are retained in public ownership and management, or if government control manipulates the private market to preserve rural character by substantially restricting the options of private property owners. (page 4)

The bottom line here is that the Planning Department discovered, to its apparent disappointment, that if the vision of San Juan County was to be realized, the County’s CP would have to take an activist position. That is, if there were any lessons to be learned from communities similar to SJC, they included, vis-á-vis the preservation of rural character, that early, aggressive action was necessary.

The Comparison Report noted that:

In consultation with the Planning Department, we chose only two communities because of the limited time available. We studied Aspen, Colorado, and Nantucket, Massachusetts, but also looked briefly at the problems and solutions current on Martha’s Vineyard, Massachusetts, and Block Island, Rhode Island. In each case from Aspen to Block Island, and in that order of severity, the problems were loss of environment, loss of the character and charm and small town rural feel of the area, the loss of affordable housing, increasing traffic, noise and other less desirable aspects of urbanization, and infrastructure that could not keep up with demand. (page 1 of consultant's report)

These problems are almost precisely the issues faced by SJC.

The Comparison Report laid out a framework for action as follows:

The test for the San Juans is now. If it decides not to duplicate what we show has happened to like-situated communities elsewhere, it will have to dedicate itself to establishing how it wants to be in five, ten and twenty years. It then will have to control and moderate growth accordingly. It will have to decide its carrying capacity and determine how to assure that it is not exceeded. If it wants residents of modest means to be able to live and work on the island as well as be able to have seasonal workers present to provide services, it will have to develop a parallel, affordable real estate market. And if it wants to retain its rural sense of open space, it will have to develop a comprehensive plan to identify and preserve the places essential to that vision. If there is one lesson to be derived from this study, it is that there are currently some quite good ideas out there as to how to accomplish these goals–to allow growth, retain a vibrant, diverse community and control the loss of a unique, rural/small town experience. The trick is in the timing; that is, when you put these mechanisms in place. In our study none of the communities installed them early enough. Fortunately, that option is still available for the San Juans. (page 2 of consultant's report)

The Comparison Report concluded that:

While there are a number of lessons which might be gleaned from this investigation, and indeed from a more detailed analysis of these communities and their growth issues and response, the most telling would seem to be that the earlier the problems are confronted and consensus developed, the better. That is, action in advance of a crisis will assure that more of the character and natural environment will be saved and that the controls to do this may be easier to install. Other more specific control mechanisms that seem to be generally recognized include:

1.) Reduce the rate of development through a point-scored cap or another similar growth rate reduction system.

2.) Decrease the level of capacity at which buildout is reached.

3.) Create a vital, affordable housing market for long-term, permanent residents with perpetual deed restrictions; and do the same for seasonal workers.

4.) Diversify the economic base beyond tourism and construction using multiple strategies including marketing made-in-the-community products. 5.) Use the slower rate of growth to increase the rate of acquisition of key parcels, through the development and implementation of a unified greenspace/open space plan. Use this in conjunction with TDR's and infill mechanisms to focus growth away from the countryside and concentrate it within urban growth boundaries.

6.) Establish a peak carrying capacity for the area using both objective and subjective criteria. (page 31 of consultant's report)

That is, to achieve a vision similar to San Juan County’s, buildout capacity must be reduced and the growth rate slowed. The recommendations cited above are consistent with the general goals of GMA. SJC knew in the spring of 2000 that achieving the vision of the CP would require something much more than minimalist downzoning in order to reduce its exposure to a subsequent invalidity order and yet did nothing about it.

3.6 Policy implications of responses to SJC public survey, supportive of no further subdivision in SJC, are ignored by BOCC despite FDO findings regarding densities and Vision Statement.

In early April of 2000, SJC conducted a public survey consisting of a newspaper supplement (a copy of the text portion is attached to this Brief as [Exhibit #7]) and a questionnaire [Exhibit #10]. The public survey offered three options for responding to the FDO, entitled options A, B and C. All but one page of the survey information were maps; the maps pertained only to options A and B. Regarding rural lands, Option A provided for minimal downzoning (by downzoning invalidated lands to 1 du/5 acres), while Option B provided for downzoning all rural lands with a density higher than 1 du/10 acres to 1 du/10 acres. Option C allowed no further subdivision of rural lands. The survey indicated that the total buildout population under these options was as follows:

Option A 57,546

Option B 47,413

Option C 41,132

Prominently displayed in a callout on the survey publication was the "did you know?" statement that:

At 2.175 persons per household (the county average) the existing parcels, if all built out, represent a potential population of 32,305.

That the population of the buildout of existing parcels, highlighted at 32,305, is about 22% lower than the Option C (no further subdivision) buildout population (41,132) might be lost on many, or confusing to others. It certainly is to me. The difference between 32,305 and 41,132, i.e., population figures derived from apparently identical conditions, was not explained.

The survey did not mention that every residential parcel could construct a guest house, nor did it mention that by the County’s determination, guest houses had zero impact on density or population. [For the record, the County’s staff report on guest houses is dated May 30, 2000, published after the survey was completed and tallied (May 18, 2000). This guest house staff report indicated that almost 30% of all developed parcels have guest houses.] Consequently, survey respondents would logically assume that the population figures presented by the survey represented the maximum buildout population for the County.

Survey questions 4 and 5 solicited responses to inquiries about rural lands issues.

Question 4 reads:

Rural Residential, Rural Farm Forest and Conservancy upland areas with mapped densities of _(sic) and 2 acres per unit have been invalidated as too dense for rural areas. The GMA appears to require densities of not less than one unit per at least 5 acres outside of AMIRDs. The options below provide a range of density reduction (downzoning) for rural uplands beginning with the minimum rural density of one unit per five acres.

Question 5 reads:

Rural Residential, Conservancy and Rural Farm Forest shoreline areas that are currently allowed densities of _(sic), 1 and 2 acres per unit respectively have been invalidated as too dense for rural areas. In San Juan County, the shoreline designations have specified densities that are different from (and usually higher than) those designations and densities shown for the adjoining uplands. For example, currently a shoreline parcel may have a Comp Plan density of 5 acres per unit and a Conservancy shoreline--the shoreline density for Conservancy is 1 acre per unit. The options below provide a range of density reduction for shorelines, with option A presented as a minimum requirement for rural densities.

Respondents were offered 4 choices: Options A, B, C and other.

The County reported the results of the survey in a report dated May 18, 2000 [Exhibit #11]. I have summarized below the results for issues 4 and 5:


Issue 4

Issue 5

Option A



Option B



Option C






With respect to the options defined by the County (i.e., all but "other"), the survey respondents were clear. The majority chose Option C, that is, they wanted no further subdivision in rural lands, shoreline or uplands. Put another way, they chose a maximum population of about 41,000 or less, which is about a third of the buildout population actually inherent in, but not revealed–indeed, not even calculated–in the CP.

Once again, the residents of the County were expressing their vision of the future of the county, and the message is: keep the county small.

Participants conduced their own survey during the spring of 2000. The survey instrument printed the Vision Statement on one side and a questionnaire on the other [Exhibit #18]–the survey asked each respondent to pick the population that most closely, in his/her opinion, matched the Vision Statement. Of the 24 respondents to the Participant's survey, 22 (92%) chose a buildout population of 20,000. Copies of the survey were submitted for the record to the BOCC during its 4/26/2000 hearing.

Reinforcing my assertion that the sentiment for honoring the small-size vision of the County was widespread, a county newspaper reported BOCC Commissioner Rhea Miller, following the signing of the comp plan by the BOCC on Oct 3, 2000 as saying that:

The revised plan is a missed opportunity for further downzoning which many more citizens favored "than I ever dreamed of", Miller said. (Journal of the San Juan Islands, Oct 4, 2000, pg 5a)

Here, at least one County Commissioner acknowledges that she knows residents want to keep the county small, whether or not they are formally referencing the Vision Statement. Yet in spite of overwhelming evidence, SJC finds itself incapable of acting in accordance with those sentiments, even under the microscope of the FDO’s invalidity finding.

My point in presenting this section is that these surveys help quantify the Vision Statement. They, along with the remarks of Rhea Miller, demonstrate that the County has substantial evidence that the public has a sense of the vision of their community, on the ground, in terms of population. SJC has an obligation, explicitly formulated in the FDO, to choose a density scheme that will result in a buildout population reasonably and logically related to the Vision Statement. SJC had the data, minor although it may have seemed to them to be. SJC chose not to use it. It made no such argument; it created no written record.


3.7 SJC, despite specific FDO notification, claims guest houses have zero density impact contrary to its own Planning Department report, the Planning Commision findings, common sense and the State Department of Health.

The FDO specified the type of analysis needed in order for SJC to justify its position that every SFR qualifies for a guesthouse, to wit:

If the County wishes to allow guesthouses as an accessory dwelling unit for each SFR it must first do an analysis which includes existing conditions, a reasonable projection of future guesthouse additions and the need for them as well as the potential additional cost of public services and facilities needed for this new growth. The County must also ensure that the additional guesthouse densities are considered and consistent with the basic densities to be established during the remand. SJC must particularly analyze the impact of guesthouse on its shorelines, R/Ls and critical areas. (FDO.13.14-20)

[And (in the Findings of Fact)]:

An appropriate analysis to be included in the density review analysis with particular emphasis on the impacts to shorelines, resource lands and critical areas. The allowance of short-term rentals of guesthouses without appropriate analysis under RCW 36.70A.070(5)(d)(iv) does not comply with the GMA. (FDO.Findings.2.#18)

The analysis offered by SJC, and the conclusions developed from that analysis, lack sufficient credibility and rigor to meet the standard indicated in the above excerpts from the FDO and therefore fails to overcome the County's burden to prove that the CP is compliant with the requirements of GMA.

SJC claims that:

...guest houses do not have a substantial impact on the residential density or rural character of the county. (Resolution 103-2000, pg 3, end of first paragraph) [244495]

The staff report on Guest Houses observes that:

The County currently makes no adjustment for impact of guest houses on density. (pg 1, Summary, item 2) [230834]

While there is no definitive statement in the CP that guesthouses have no density impact, the fact that Land Use Element 2.2.A 11 (discussed below) allows every SFR to construct a guesthouse without density restriction establishes SJC’s ‘guesthouse’ position, i.e., that guesthouses have no impact on density.

However, data published in the guest house staff report shows that 29.6% of all lots with a structure on them already have a guest house; it is nonsensical to argue that these 2000plus additional structures have no impact on population or resource consumption.

3.71 Occupancy assumption, used to assign density, based on inadequate data.

The staff report asserts that the practical effect of long term guest house rentals is a 10% increase in density. (This finding, by virtue of policy 2.2.A(11) in the Land Use Element, discussed below, as well as by Resolution 103-2000, discussed later in this section, is ignored by the BOCC.) The guest house staff report observes that it has "critical data gaps", but staff nonetheless allocate 16% of the 26% of guest houses to upland areas and the remaining 10% (of the 26%) to shoreline areas. Of the 16% in upland areas, they claim that only 10% of this is used for long term rentals–this is the 10% they ascribe to an increase in density. Planning staff discount 6% of the 16% (which is almost 38%) on the grounds that, even in the absence of data, it is "reasonable."

The staff report says that:

With an average number of persons per dwelling unit at 2.175 per dwelling unit, the potential impact of the 16 percent is therefore not likely to be a doubling of the density for that 16 percent (pg 8) [230841]

This conclusion by SJC does not appear to be a reasonable or supportable claim. All dwelling units in SJC are assigned, for "density" purposes, 2.175 persons/du. If all 16% of the guest houses are occupied, then they are occupied. They have no more and no less population than the SFR with which they are associated. This does not give SJC a credible argument for lowering the ‘density impact’ of the upland guest houses 38% from 16% to 10%.

Of the 10% in shoreline areas, the staff report claims that:

Guest houses which are rented short-term do not affect density. These rentals house visitors on a paying basis, for what is essentially a commercial lodging activity. They do not contribute to an increase in households on the land; [230839]

This assertion by SJC seems absurd to me on two counts. First, there is no data to support the County’s claim that any given percentage of guesthouse occupancy for shoreline or upland use is commercial vs. long term rental. The County assumes that 10% of the 16% of the upland guesthouses are rented long term, and therefore constitute a "density" addition, and further assumes that 0% of the 10% of the shoreline guesthouses are rented long term, thus creating zero density additions. These occupancy figures by SJC are pure guesstimates, which is below the standard for an "appropriate" analysis required by the FDO.

Second, the County’s assertion that a short term rental has zero "density" impacts but a long term rental has a "density" impact is arbitrary. A case could just as easily be made that plenty of shoreline guesthouses are occupied far more of the year than many SFR’s, shoreline or otherwise, yet, by using an "occupancy" concept based on location and ‘commercial’ vs. non-commercial use, SJC claims that shoreline guesthouses cause by definition and designation no impact. SJC cannot logically justify a density position in which the income a property owner gets from a short term rental (that might be occupied as much or more as other SFRs regardless of location) is commercial and therefore has zero density impact, whereas the income a property owner gets by renting a guesthouse to a "long term" renter is not commercial and consequently the occupants affect density. There are plenty of property owners who in fact do both. They rent their guest houses for the "winter" months at a "long term rental" rate, then switch to a higher "summer" rate for shorter duration occupancy during June to September at 4 or more times the per/month winter rate. Meanwhile the "long-term" tenant is scrambling for some place to live for the summer; this common landlord behavior seriously challenges the County’s position on guesthouses as an affordable housing option, yet there is no documentation on this phenomena.

Indeed, the whole discussion of what constitutes the impact of population, whether it be "transient" or "permanent" (whatever those might mean in today’s lifestyle definitions) is absent in the CP. If a guesthouse is occupied every weekend by a ‘transient’, how is this any different in terms of the impact on the community and its resources than if the same guesthouse is occupied every weekend by the owners of the SFR?. The argument that impacts from seasonal housing are significant is reinforced by OFM. In the Appendix to their 1995 population projections document, they note:

In Mason, Pacific, San Juan and Skamania Counties, seasonal housing was 20 to 30 percent of the total county housing. Seasonal housing implies seasonal population changes. Planners have to deal with the environmental impacts of seasonal housing and the service impacts of seasonal populations such as need for police and fire protection, and infrastructure development and maintenance. Furthermore, many seasonal units are potential year round housing. Some people sell their city houses on retirement and move to their rustic hideaway. (Washington State County Population Projections by age and sex, 1990-2020, 1995 Projections, published by OFM, pg 135) (Exhibit #15 contains the Appendix from this publication)

The point is that occupancy should not discount "density" on the basis of a characterization of the tenancy as short-term vs. long term. This can be further illustrated by looking at state standards for water availability. The State Department of Health requires a building to meet state water availability standards regardless of how it is occupied. Whether it is a guesthouse or an SFR, whether it is in the shoreline or the upland, it cannot be built if it does not have adequate water. More on this later.

3.72 Guesthouse/SFR construction-ratio forecast is based on inadequate data and questionable assumptions, and therefore does not meet the standard articulated in the FDO

As far as the proportion of new SFRs that will construct guesthouses during the planning period is concerned, the guest house staff report states that:

"the County believes that 26% represents appropriate estimate for proportion of developed parcels which will also develop guest houses during 20 year planning horizon." (pg 6) [230839]

There is, however, no data to support the County's assumption. "Believes" is not likely to fly before a review panel of the National Academy of Sciences. No one knows how many SFR’s in previous years built guesthouses, so there is no data that says this proportion is constant over time. One could just as easily make a case that the proportion of SFRs with guesthouses is rising simply on the basis that the majority of new SFRs are funded by people "with money" and part of that wealthy lifestyle is having a guesthouse.

The County concedes in the staff report that:

"the County has not placed any regulatory limitation on the percentage of houses that can develop guest houses, and potentially the percentage could the future. Theoretically, the percentage could approach 90+ percent" [230839]

This statement undermines the just-quoted estimate from the staff report and reveals that there is no numerical basis for assuming a constant SFR/guesthouse construction ratio.

The Planning Commission also noted that:

Guest houses have the potential to dramatically affect the population and associated negative environmental impacts.(Planning Commision Findings, pg 8, #13)


The conclusions developed by the county for the use of guest houses are based substantially on conjecture. (Planning Commision Findings, pg 8, #17)

3.73 Guesthouse water useage assumption by SJC incompatible with DOH policy

The guest house staff report also concedes that SJC’s conclusion that guesthouses, regardless of their location, have zero impact on density, is not shared by the state Department of Health (DOH). The staff report tells us that:

"acting as the board of health, the County Commissioners instructed the County Health Department to treat guest houses as not constituting any additional demand on service or capacity (i.e., that a house alone, or a house plus a guest house, created one equivalent residential unit of demand).

Subsequently, the state Department of Health informed the county that this finding was contrary to the evidence and experience of the Department, and informed the County that the Department had previously required, and would continue to require Group A systems to make allowance for additional demand on capacity by guest house development...

However, Group B systems and individual wells are not regulated by the state. Currently the additional demand on service by guest houses is (with the exception of a handful of Group B systems) being treated as zero. By the state’s reckoning, the development of guest houses may incur additional demand on aquifers, potentially reducing the ability of such aquifers to support new SFR development and demand." [230841-230842]

The 4/14/2000 Staff report elaborates on this last statement further:

This is only a small part of a much larger issue, the question of the carrying capacity of several of the aquifer water supplies. This larger question is now being seriously investigated and approached by the County for the first time. (page 16, Exhibit #8).

Water is important, and SJC admits it does not know, in a county known for water supply limitations and contamination problems, how much the existing aquifers can provide. Both DOH and the Planning Department are properly concerned, seriously weakening SJC's argument that guesthouses have no impact.

For further information, I contacted Ted Wixom, manager of the Eastsound Water Users Association (EWUA) as well as manager of the Doe Bay Water Users Association (DBWUA) (both class A waters systems.) I learned that an SFR and an Accessory Dwelling Unit (ADU) could be evaluated as follows:

If the SFR and ADU were in a rural part of the county served by a well, SJC would assign the combination of both structures 1.0 Equivalent Residential Unit (eru).

If the structures were located in Eastsound, the EWUA would assign the combination 1.25 eru (1 for the SFR, .25 for the ADU);

If the ADU were attached and the structure defined as a duplex, it would be assigned 1.6 erus (EWUA assigns .8 eru per apartment);

If the building were considered a SFR and an apartment, it would be 1 plus .8 or 1.8 erus;

If the building were located in DBWUA service area, it would have to satisfy the requirement of 2.0 erus.

Consequently, the water consumed by a guest house is considered by the State to have more than zero impact. Depending on definition and location on, for example, Orcas Island, a guest house would require from zero (SJC’s asserted position) to 1 full eru in addition to the eru for the SFR. SJC has not met the burden imposed by the FDO finding that it develop a

reasonable projection of future guesthouse additions and the need for them as well as the potential additional cost of public services and facilities needed for this new growth.


3.74 Argument that legal definition of family thoroughly underpins guesthouse zero-impact position is specious

Resolution 103-2000 (legislative findings) page 3 demonstrates SJC’s ability to dance with words, using lots of smoke and mirrors:


Further, guest houses provide an important and efficient use of housing and are an important component of affordable housing policy in the county. Testimony was received that guest houses are an important housing factor for many middle income families. [2444495]


The county limits the size of a guest house and provides for the same access to be used as the access to the main residence so that a guest house does not become an independent dwelling unit. [2444495]

The first paragraph above clearly informs us that guesthouses are a resource for affordable housing, obviously for a different household than the occupants of the SFR. The second paragraph tells us, however, that design conditions prohibit the guesthouse from becoming an independent dwelling unit. If it is not an independent dwelling unit, who would live there? Who would pay to live there?

Showing an obscure logic, Resolution 103-2000 continues:

Guest houses do not "double density" because only one family is allowed to live on the property that has a guest house...The county addresses density in the unit of family, which is seen as the minimum unit appropriate for regulatory purposes. This is to contrast the measure of density for planning purposes, where assumptions of the number of people are used so that projections may be made into the future. [2444495]

The County should not be allowed to play it both ways. The CP is a planning document. It articulates a dwelling unit (du) population average of 2.175 people. SJC would like us to believe that there is no population difference between 1 du/ parcel and 2 du/ parcel because of a legal definition of family, which is up to 8 unrelated individuals. Under the County's logic, we could just as easily claim that SJC must assign not 2.175, but 8, people per du. There is a point when a desperate attempt to justify an absurd position becomes laughable, if not humiliating. SJC has crossed that line.

In order to justify its policy that guest houses have zero impact on density, SJC would have the Board believe the argument that (inadequate) statistical occupancy data nevertheless overrides a property owner’s legal vesting right (see section 3.8, below). The staff report has critical data gaps, and makes assumptions that are questionable. SJC’s policy regarding guesthouse impacts on water, especially non-class a water systems, is simply indefensible.

The bottom line is that the BOCC ignored both the Planning Commission findings and the staff report. The BOCC's legislative findings are contradictory and nonsensical. SJC has failed to meet the burdens imposed on them by the FDO, including that "The County must also ensure that the additional guesthouse densities are considered and consistent with the basic densities to be established during the remand." (FDO.13.17-19)


3.8 Contradictions within the Land Use Element’s Policy Section 2.2.A demonstrate confusion and inadequacy inherent in density policy, illustrating SJC’s failure to respond adequately to the FDO.

In this section I will show that 2 land use element policies argue for lowering density, while 2 others allow substantial increases in density. These policies are contradictory and reflect a failure to present a clear, coherent, consistent and reasonable response to the density issue articulated by the FDO. As shown in other sections of this Brief, the portrait continuously painted by SJC in response to the FDO is incomplete, confusing, contradictory and disrespectful of the gravity inherent in an invalidity finding.

Section 2.2.A of CP Element 2 (Land Use) ("General Goals") has 14 policies. These policies represent the heart of the CP. These policies have been revised, but not dramatically, from the 1998 CP. SJC might claim it remains invulnerable to the challenges brought in this Brief against the CP by citing policy number 5, which now reads (using redline/strikeout format provided by SJC):

Within four three years of the effective date of this Plan the County will examine the effects of potential buildout. The buildout analysis will include consideration of actual permanent reduction of density units through conservation easements or other existing means, known physical development constraints, and consistency with the Vision Statement. The buildout analysis should also include consideration of appropriate means for further reducing the impact of increased population, including impact fees, transfer of development rights, and other mechanisms for reducing population impacts in the Rural and Resource Lands. [2444336]

Even if the County adopted transfer of development rights (TDR's) in the CP, such a solution does not resolve the internal inconsistencies in the CP. First, TDR’s simply move development around within the same governmental jurisdiction. They do not deal with the growth rate or the buildout population, i.e., Vision Statement issues. No one proposes, for example, that the County have a TDR program with Tacoma.

More importantly, SJC virtually claims, as it did in 1998, that the CP is out of compliance (i.e., it is inconsistent) by saying that SJC will study the effects of buildout, and that it will consider reducing density units through "consistency with the Vision Statement". The implication of the sentence is that in order to be consistent with the Vision Statement, SJC will create in the future a buildout analysis that will consider "permanent reduction of density units". That is, SJC states, after a year during which they were required to correct their CP, and under a specific FDO directive that they make the OM densities consistent with the Vision Statement, that the County’s population will become too big to be consistent with the Vision Statement so it needs to–still–"examine" the problem. When are they going to do the work?

The key parts of this policy are:

1. The CP says it will "examine" something in the future.

2. The CP all but says it is inconsistent now but it may correct that.

3. The CP says it "will include consideration". It does not say it will change anything.

GMA does not say a County can examine a specifically identified problem (in this case "density") in the future and maybe do something about it if it determines that it is internally inconsistent (nevermind the fact that SJC remains under the scrutiny of an invalidity order imposed by a FDO). GMA says a CP must be internally consistent when it is adopted. SJC’s 1998 CP failed to meet this standard, and SJC has failed to meet this standard with its 2000 CP . Nevertheless, the clear intent of policy 2.2.A.5 is to both reduce density (a surrogate for population impacts) and as well reduce population impacts. However, an examination of Resolution 104-2000 [244508-244510], SJC’s implementation strategy resolution, shows that despite a 5 year projected future, there is no activity planned to perform this task.

As a defense against the arguments in this Brief, SJC may turn to 2.2.A policy 7 (formerly policy 11), which states:

"Implement the Vision Statement goals of preserving rural character and limited natural resources by means of voluntary, incentive based programs and other strategies, to reduce the currently allowable maximum number of residential structures in rural areas in a manner that is fair and equitable for the affected property owners..." [2444336]

Once again, SJC says that in order to meet the Vision Statement (that is, to be internally consistent and therefore in compliance with GMA), they will "reduce the currently allowable maximum number of residential structures...". To my mind, this says (again) that SJC knows that it remains out of compliance. SJC has had a remand period of a year to make corrections to its CP to bring it into compliance. SJC has been compelled to reduce the overall buildout population compared to the 1979/1998 density map and yet, via policy 7, still claims there are too many residential structures. SJC does not want to reduce the number of residential structures further by reducing density via regulatory measures, even though its citizens have asked SJC to do so. Since policy 7 prescribes non-regulatory mechanisms to reduce the maximum number of residential structures, it is window dressing, and I should think embarrassing for its timidity, under the scrutiny of an FDO.

Then, showing the CP’s truer colors, policy 10 states:

"Preserve the rural character of rural, resource and conservancy lands by providing for conservation design in new land divisions and allowing for limited residential density bonuses in return for additional protection of open space resources."(emphasis mine). [244387]

Resolution 103-2000 weighs in on this, although more circumspectly:

c. The open space character of rural lands is to be preserved through density reductions, conservation design of all rural subdivisions, and a new Open Space Conservation Overlay District, applied to resource lands with the highest open space values identified in the 1991 Open Space and Conservation Plan. The Open Space Conservation Overlay District provides an increased incentive for open space preservation of land with the highest open space values, together with resource conservation and production, in the subdivision of resource lands. pg 6 (emphasis mine) [244498]

That "increased incentive" is a density bonus, but you would hardly suspect that given the context of the paragraph, which begins with preserving open space through density reductions.

Policy 5 and 7 are toothless tigers, perhaps kept in as an appearance-only sop to a reader unfamiliar with the real meaning behind land use language, but policy 10 is clear: allow increases in density.

If policy 10 is a setup, Policy 11, (formerly policy 12), is the punch:

"Allow one guest house (accessory dwelling unit) for each principal single-family residential unit...Develop standards for guest houses to ensure that potential impacts on density...are mitigated." (emphasis original) [244337]

Land Use Policies 2.2.A. 5 and 7 say that to meet the consistency requirement, SJC will have to reduce density units, minimize population impacts, and implement voluntary programs to reduce residential structures. Policies 10 and 11 say that the County can increase density (i.e., population) by up to double. This was bad enough in the 1998 CP; it is farcical to imagine the BOCC believes the WWGMHB will either not notice or not care about these contradictory policies crafted under the scrutiny of an FDO.


4. Summary

1. SJC responded to the FDO by downzoning denser parcels in invalidated rural lands to 1 du/5 acre . The first set of calculations of the buildout implications of these density changes was created after the final set of BOCC hearings had concluded. There was no distribution of these buildout figures either as part of the revised CP, on the County’s Growth Management web pages, or to the local libraries. The buildout population calculated by the County from the density designations on the OM is inconsistent with the vision of the community expressed in the Vision Statement and fails to satisfy the FDO.

2. SJC made no attempt to create a mix of rural densities consistent with the standard required by GMA. The mix that is represented on the Official Maps was a direct consequence of simply downzoning higher density rural areas to the 1 du/5 acre level, resulting in an existing rural lands parcel density averaging 6.5 acres. 80% of the rural lands parcels in SJC are now zoned 1 du/5 acres; the average size of these parcels is 4.7 acres. 18% of the rural lands parcels (all lands zoned 1du/10 and 1 du/15 acres) have an average parcel size less than 10 acres. As a result of SJC’s apparent desire to lift the invalidity order with the minimum downzoning possible, 98% of the existing rural lands parcels in SJC calculate to an average parcel size of 5.44 acres. Information on the mix of densities and the average parcel size at buildout will likely not be available until after challenging Participants file their briefs. There is no written record to support SJC’s contention, buried in the OM, that the CP has created a mix of rural densities and, consequently, that GMA goals have been harmonized.

3. The Vision Statement, unchanged between the 1998 CP and 2000 CP, says the County wishes to stay small and slow paced. The CP (Introduction, unchanged between 1998 and 2000) states that:

The Vision Statement (Table 1) is the foundation upon which the entire Comprehensive Plan is based.

4. The WWGMHB found that the 1998 CP Official Maps were "significantly inconsistent" with the Vision Statement. By so doing the Board established that the Vision Statement was for the purpose of a consistency claim both quantifiable and a standard against which the CP must be actively measured vis-a-vis RCW 36.70A.070(5)(a). Note particularly that the Board included the qualifier "significantly". This indicates that this was something much more than a basic inconsistency issue.

5. Virtually all the public documents produced by the SJC Planning Department during the remand period did not mention the Vision Statement, nor indicate its role in guiding the work per the standard indicated in the FDO.

6. Residents of SJC, regardless of a confusing survey conducted by the County in the spring of 2000, were asked to choose among 3 density options. The majority of respondents chose the option that would have prohibited all further subdivision throughout the County. This survey did not mention the Vision Statement or solicit input on whether any of the 3 options offered by the County were, in the public’s opinion, consistent with the Vision Statement.

7. A survey conducted by petitioners found that 92% of the respondents, who were specifically asked to quantify the Vision Statement, chose a total buildout population of 20,000.

8. The analysis of Guest Houses, from which SJC concludes that guest houses have no impact on density, is flawed. Assumptions were made by staff without statistical support. Regarding impacts on water availability, SJC’s position contradicts state guidelines.

9. The only language in the CP related to lowering density (Land Use, 2.2.A, policies 5 and 7) essentially admits that the CP is internally inconsistent vis-á-vis density and the Vision Statement. These policies suggest that reducing density is important but provide only that SJC will study the issue and at some unknown date may do something as long as it is voluntary or incentive-based.

10. On the other hand, Land Use element 2.2.A. policies 10 and 11 permit increasing density in rural, resource and conservancy lands as well as allowing density to double by allowing a guest house for every residence.

What does this all add up to?

The CP itself provided the standard regarding the role of the Vision Statement in stating that:

Adopted as a formal policy statement, a vision serves as both a blueprint for future direction and a yardstick against which to measure current decisions and actions.

The revised 2000 CP continues to makes a mockery of the Vision Statement as a blueprint for future direction. Using the Vision Statement as a yardstick "against which to measure current decisions and actions", the revised CP would measure out well over 2 feet short.

Given a one-year remand period, SJC

° has made surprisingly few changes to the most critical policy statement of the CP without apparently noticing–or caring–about contradictions;

° claims 2.2.A. policy 11 doesn’t double density because guest houses (ADU’s) don’t have any impact while disregarding its own staff report as well as the FDO;

° adjusts the OM to meet the absolute minimum density changes that they hope will eek them out of an invalidity order;

° ignores the GMA requirement to show their work in creating a mix of rural densities that preserves rural character; and

° blows off their FDO-based obligation to craft a density configuration consistent with the Vision Statement.


5. Relief Sought

In the eyes of many, the controversy over the CP, in 1998, and now, is a controversy over "density". Few have defined what this term means–in San Juan County "density" is a code word for "population". To most people, the greater the ‘density’, the greater the population. "Density", implying the population inherent in the aggregation of existing legal parcels and subdividable parcels, is at the bullseye of the FDO.

As of the spring of 2000, SJC indicated that 55% of existing parcels are vacant. The County has not generated the data to show how many of those, and their subdividable additions, are in activity centers and how many are in rural and resource lands. Most certainly, almost all new residential construction in the county occurs outside of Activity Centers. The great majority of households that has transitioned to the County desire a rural setting. It doesn’t take a rocket scientist to observe that the population pressure expresses itself in the rural part of the county. Consequently, the permissable "density" in the rural (and resource) areas is critical to maintaining rural character.

The combination of the facts that the average mix of rural densities is already virtually 1 du/5 acres, that every SFR can build a guesthouse irrespective of density considerations, and that the Vision Statement is implicitly characterized as something akin to mom, apple pie and the flag than to an actionable component ("foundation of the CP" is how the CP puts it), creates, within the context of an invalidity finding, a County response that falls far short of meeting the burden of proof under which SJC’s request for a lifting of invalidity is to be evaluated. SJC has established a consistent pattern of disregard vis-a-vis densities that does not constitute a valid, good-faith attempt to comply with the Act. All the rural density components of the CP warrant a finding of substantial interference.

(1) I request that the Board invalidate all CP rural and resource land density designations on the Official Maps and invalidate policies 5,7,10,11 in the Land Use element 2.2.A. SJC had a year to comply with the FDO, during which time the BOCC has taken an obstructionist approach toward its GMA obligations. SJC has demonstrated no willingness to show its work.

The County's behavior has shown that, under a subsequent "out of compliance" order, it would not work to bring the CP into compliance, or would do the work so slowly that preservation of SJC’s rural character would be moot. The limited incentive under a 'not in compliance' order for fixing the CP will be overridden by SJC's desire to avoid local political heat.

Only a finding of substantial interference will prevent rural and resource lands from being subdivided to below an average 1 du/5 acre. Only under a finding of substantial interference will the County have sufficient incentive to adopt a CP that meets all of GMA's requirements.

In its finding regarding the relationship between the Vision Statement and the densities on the OM, the Board used the term "significantly inconsistent", raising the standard for compliance. This term is semantically close enough to "substantially interferes" to shove, given the record and arguments established in this Brief, SJC’s CP deeper into invalidity land.

At least one member of the BOCC might not be surprised by such a ruling. Rhea Miller, quoted earlier in a local newspaper, stated:

With the average densities allowed in rural and resource areas, the county is heading down the road from rural to suburban, Miller said. She described the spot-zoning that occured during the moratorium on land-divisions and outside the normal planning process as "professionally embarrassing."

"I think history will deal harshly with us," she said. (Journal of the San Juan Islands, Oct 4, 2000, pg 5a)

(2) I request that the Board remand the CP to SJC with instructions to insure that the Land Use Element, which includes the county-wide density designations component within the Official Maps, is modified to be consistent with the existing BOCC-approved Vision Statement, and that all density designations as well as land use general goals and policies are made subordinate to, conform to, and enable the Vision Statement; and

(3) I request that the Board require that SJC meet GMA planning goals regarding reducing rural sprawl and concentrating future growth in activity centers.




Parties Served:

A Declaration of Service accompanies this brief.



Dated this 26th day of October, 2000

Respectfully submitted,

Joe Symons