Fred R. Klein


Case No. 99-2-0010





San Juan County



1. Applicant: Joe Symons

3222 Point Lawrence Road

Olga WA 98279


Fax 360-376-2626

2. Background:

I was appointed in 1992 as the chair of the citizens advisory committee for District 2 (Orcas and Waldron islands) by the San Juan County BOCC to facilitate the crafting of a new comprehensive plan for San Juan County under the GMA. From the first day of our deliberations, I have been urging the citizen’s committee, the Steering Committee of which I was a member, and the Commissioners to examine the issues implicit in the land use density designations, established in 1979, for San Juan County. A seven year record shows my continual efforts to prod the committees and the BOCC to investigate the implications of the density designations on the county. The density designation map can be used to generate the maximum number of residential structures permitted in the county; in turn, the average historical occupancy rates applied to these structures will generate the build-out population for the county. This estimated population is far in excess of what is generally considered acceptable by the population.

Fred Klein included a letter I originally wrote to the BOCC in December 1994 as Exhibit B in his petition. This letter was published by a local newspaper just prior to the 60 day SEPA comment period soliciting comments on the goals and policies of the comprehensive plan. The letter illuminated the internal inconsistency in the comp plan between the Vision Statement and the buildout population. Citizens, concerned about the issue(s) raised in this published letter, created a public awareness process which resulted in more official comments on this topic than any other–indeed, all other topics–combined. Of 2090 total SEPA comments, 1160 supported the following statement, addressed to the BOCC:

"since continual development and population growth would destroy these values, we ask that you forthrightly determine the population that is consistent with the vision statement. Please include in the Comprehensive Plan equitable measures such as density reduction and development limitation, sufficient to assure that our beautiful environment and friendly, diverse community will be maintained now and for future generations."

(Note that San Juan County had more public participation in absolute numbers regarding the comp plan process than did King County.)

Subsequent efforts on my part, with the support of many others, resulted in the inclusion in the Steering Committee’s draft of the comprehensive plan, the following single sentence dealing with this issue:

"It shall be San Juan county's policy to implement its Vision Statement's goals of preserving rural character and limited natural resources by means of voluntary, incentive-based and regulatory methods of reducing the currently allowable maximum number of residential structures."

The current comprehensive plan includes a dramatically weakened and limited substitute for this Steering Committee approved policy (c.f. Section 2, Land Use, 2.2.A.11). The plan does not offer any discussion of a timetable or a process to deal with land use density designations and their implications for the county. The density map and its implications were never discussed by the CAC’s or the Steering Committee, the economic impact statement was by the long range planner's admission wholly inadequate, and the entire set of complex issues relating to buildout, including transportation, economic impacts, infrastructure and property tax implications, loss of rural character, even the gap between the actual and "planning purposes" rate of growth, and when and how buildout might be reached, were never defined, discussed, debated, deliberated and certified as acceptable. Indeed, the original, unmodified 1979 land use density scheme is simply included, without comment, as a background element on the Official Maps.


Actual data From Table 1, Appendix 1, San Juan County Comprehensive Plan

Estimated data is based on 5% estimated annual growth from 1996 to 2020.

Total county population in 2020 is less than buildout population.

Shown above is a graph of population growth in San Juan County based on the data in Table 1 of Appendix 1 of the San Juan County Comprehensive Plan (an addendum to this memorandum contains a copy from the comp plan of this Table.) The table contains U.S. Census data for the population of San Juan County from 1870 through 1990. This graph visually demonstrates the population growth we are choosing via the density designation map of the comprehensive plan. The county has chosen a 2.5% growth rate for "planning purposes", about half the actual growth rate of the county. The failure of the county to discuss and certify the implications of both this growth rate as well as the internal inconsistency between the Vision Statement and the buildout population inherent in the Official Maps are the basis for this memorandum in support of Fred Klein's petition to appeal.

3. Discussion:

I include here abbreviated remarks from my testimony given on Oct. 22, 1996 before the BOCC during public hearings held on Orcas Island pursuant to their deliberations on the comprehensive plan. These comments speak to the current plan as structurally sound and strategically inadequate:

… I believe that the greatest weakness in the present draft of the comprehensive plan is that there is an internal inconsistency between the vision statement and the land-use density designations which define the buildout population of the county. The vision statement was designed in the last few years by the committees of which I have been a part. The land-use density designations were designed almost 20 years ago and were effectively not discussed by our process, and certainly not reconciled with the vision statement. So we have an old part of the plan which is in direct contradiction with the new part of the plan. This inconsistency was recognized by the population and commented on during the official SEPA comment period, generating more input than all other citizen comments combined. The people said, effectively, reconcile this inconsistency, and so far that has not happened.

Now, this reconciliation process is far from simple, easy, clear and politically painless. Through what seemed to me at the time to be divine intervention, I, with the essential assistance of many others, succeeded in persuading the Steering Committee to include one sentence in a plan of hundreds of pages which asks the county to address this unresolved issue. The sentence stands as a small light pointing the county forward in time. The sentence represents a missing piece of the plan, which without it might be called a well-crafted structural plan. That is, the overwhelming majority of the plan anticipates growth and development and conflict areas carefully and provides a structural context within which these issues can be more efficiently and effectively processed. The plan, however, is only structural; it is not strategic. A strategic plan knows where we are going and systematically provides a crafted way to get there. A structural plan merely provides a way to get somewhere, but no direction as to where we’re going. Our well-designed structural plan can ensure that as we systematically move toward some future, we’ll do it with adequate water and roads and schools, and, tho it doesn’t discuss it, higher per capita taxes and a host of other impacts that few desire.

That one sentence asks the county to think, and act, strategically, as well as to formally recognize the expressed wishes of the population. As a citizen of this county who has been here regularly since 1968, I have seen changes. Who hasn’t? Along with many others, I have seen changes in other communities which are not anticipated with enthusiasm here, yet are happening here. The county commissioners have not only the right, they have the obligation to think strategically.

… This county is a jewel; it needs stewardship and protection and careful gardening if it is to serve as an example of real democracy in action, real people facing new challenges that affect the collective future of all who benefit from the county, including generations yet to come, challenges affecting a unique quality of life that is as precious to those who live here as the freshness of the air and the clarity of the water.

Here is a comment I received last week from some guests:

"The Pacific Northwest and Orcas were even more than we imagined. We hiked almost every trail in Moran Park and some of them twice. We enjoyed the "laid back" nature of Orcas... Cathy and I enjoyed seeing the turkeys each morning as we headed out for the day. As we leave, we just hope the island will be able to maintain its current state of tranquillity and natural beauty and fend off big time commercialism. In this hectic society of work and family, its important to have havens for total relaxation and natural beauty."

Those folks were from St. Louis. What we have here is a national treasure. As county commissioners, you have the responsibility and opportunity to show the county, and the country, that you know not just how to talk, but to walk, real leadership. Teddy Roosevelt did it. So can you."

It is my opinion that without looking at the implications of the growth rate and the buildout population on the county, the plan as passed violates the very purpose of the GMA and the fundamental strategic purpose of a comprehensive plan as well as wholly disregards both the specific request and the magnitude of that request that emerged from the SEPA comments.

Workable methods can be developed to reconcile the Vision Statement with the Official Maps. Once such method is illustrated in a commentary entitled "The Next Step", included and abridged below, which I wrote in March of 1995 and sent to the BOCC. In it, I propose a general scheme by which some of the issues raised by Fred Klein might be addressed:

"Common sense and the GMA both require that the comprehensive plan be consistent (in this instance, that one aspect of the comp plan, the vision statement, be consistent with another aspect of the comp plan, namely the buildout population implied by the density map). Additionally, both common sense and the GMA require that the controlling or determining component in any consistency conflict is the higher order element, and clearly the vision statement is the highest order element in the comp plan. It is the element that serves as the umbrella defining all other elements as subordinate. Thus in resolving this specific conflict, the vision statement is used as the standard to which the buildout population, and by extension the density designations they are based on, must be held accountable.

Two problems are immediately presented for resolution.

The first problem is to determine the maximum population that would still meet the principles expressed in the vision statement. It is clear that as population grows, the "quality of county life" factors expressed in the vision statement deteriorate. At what point in the growth of the county population is the resulting degradation in the quality of life created by that growth no longer consistent with the expressed (i.e., ‘vision’) wishes of the population? Some people claim we are already at a "maximum" size, and that consequently any more growth will result in a county population inconsistent with the vision statement. Others claim we’re already too big. No one has come forth to claim that our ‘79 buildout population is consistent with the vision statement. (That population, depending on assumptions regarding occupancy ratios, persons per household, and the inclusion of non-permanent residents in the count, varies anywhere from 4 to 10 times the current full time resident county population). For the purposes of the discussion to follow, let us assume that the citizens agree that a buildout population, that is, a permanent resident population, no more than double the existing full time population would meet the standard required by the vision statement. More than double the current population, however, would result in a deterioration of the quality of county life to the degree that it was no longer consistent with the vision statement.

If it is argued that such a determination is "arbitrary", let it be noted that the selection and determination of density designations which was established for the first comp plan was no less arbitrary–individuals sat down and simply allocated certain areas to be R-2, R-5 and R-10, for example, without any additional input other than the "wishes" of the neighborhood where such allocations were to be applied.

Consequently, the buildout population which resulted from that first effort at density designations was one that was arbitrarily, as opposed to methodically, determined. No one in 1979 actually calculated the total county buildout population based upon the collective results of various neighborhood’s allocations, then revealed, discussed and certified that the resulting population which could eventually occur was felt to be acceptable by the majority of the voters of the county.

Those who are responsible for the current Comprehensive Plan are not free to hold such a loose standard. The vision statement, and indeed the process by which the entire plan is being built, is predicated upon a recognition that growth can and does cause consequences and that counties must recognize, account for and prepare for those consequences. To argue and do less is to reveal oneself as incapable of rising to the great challenge of our time, or to suggest that solutions which haven’t worked in the past are still appropriate for the future.

The second problem is to establish a mechanism to guide the county population growth to be no more than the maximum population as determined by the vision statement standard.

I believe that there needs to be a public/private partnership in order to achieve on the ground the vision that informs our dreams, hopes and plans for this beautiful county. I believe that there can be developed a set of incentives, both positive and negative, which will protect the value, in dollars, of currently undeveloped land without permitting the development rights which exist for that land to be translated into population.

The obvious way to achieve this, in principle, is to arrange for the retirement, purchase or acquisition (by a non-developing entity, such as San Juan County or San Juan Preservation Trust) of existing or potential development rights.

The purpose of this discussion is not to review all the possible incentives or disincentives available, but to structure a plan for the orderly development of the county consistent with the retirement of the development rights "debt", so that we simultaneously achieve development and achievement of the vision–we create a win win situation for county property holders and county residents.

The development rights "debt" is the excess of development rights over the maximum development rights needed to achieve the buildout population. The size of this "debt" is determined by the degree to which the county commissioners will (or will not) re-examine and modify their position not to make any changes in the existing density designation map for the county.

The fundamental plan is to require development rights to be retired coincident with the issuance of development permits (i.e., building permits) in the proportion that the development rights "debt" exceeds the desired (i.e., "vision-approved") development potential.

For example, consider the following hypothetical situation.

Suppose that Orcas Island has an existing population of 4000. Assume that this population consumes 2000 development rights (there are thus 2 persons per household) and further assume that the "size" of the development right (one household lives in an apartment, another lives on a piece with a density designation of R-20) is irrelevant. Let’s say for the purposes of simplicity of the math needed for this example that the total development rights available are 10,000. That is, if all the currently platted lots and undeveloped property available to be subdivided were developed to the maximum extent permitted, there would be 10,000 (total) lots, of which we are currently consuming only 2000. The ratio of the current consumption of development rights to the total available is 1 to 5, so we can quickly determine that at buildout, we would have 5 times the current population, or 20,000 people. (This can also be simply calculated as 10,000 development rights times 2 persons per household, resulting in the same 20,000 people).

Now, suppose the citizens of Orcas concluded that to have a total population more than double the current population would be to create a quality of life inconsistent with the vision statement. They wish to establish a plan whereby the population can still grow to be twice as high as the current population (surely some will grumble that this is way too high) yet no higher. Examining the buildout development rights table, they determine that to have another 4000 people (to achieve a doubling of the population) they will need to consume another 2000 development rights. That would mean that, at buildout, 4000 development rights would be consumed and 6000 would have had to have been retired. The ratio of development rights that are needed for development (2000 more) to development rights needed to be retired (6000) is 1 to 3. Simply put, for every development right which is to be translated into an actual development, three need to be retired. When the vision-statement ‘buildout’ population is reached, there will be no more development rights available to be consumed or retired. The county will be at its maximum population.

This notion, that development rights are a commodity which can be sold, purchased, relinquished, or donated, leads directly into the notion of the development of a market for such rights. Such a market will immediately arise when the county requires that no new building permit be issued without the applicant’s demonstration of the purchase, acquisition or acceptance of three development rights. In order to receive a building permit, those rights must be relinquished to the county or to an approved non-profit non-development entity like the San Juan Preservation Trust. Once retired, the rights can no longer be made available to anyone for development in the county.

This scheme might broadly handle the issue of resolving the "debt" of development rights "given" to the population in the 1979 comp plan. Note that there is no "taking" proposed here. To the extent that all the property rights "given" in ‘79 are honored (and not rescinded by the commissioners in a possible downzone action), there will be that many more rights required to be obtained by any applicant prior to the issuance of a building permit.

There are some observations regarding this plan that should be made. First, it achieves the vision. Second, it achieves the vision in a manner that leaves no economic crash at the end; that is, it achieves the vision gradually. There is time for adjustment. Third, it does not involve a ‘taking’. No one’s rights are denied. They are either purchased or donated (and then retired). Having a development right does not mean an owner has an inalienable right to develop something. It only means he or she possesses something which has an economic value that cannot be "taken" by a government without "just compensation". People who have development rights will be compensated, tho not necessarily, and not probably, by the government.

While this concept might in principle be used to walk us toward buildout in some rational and appropriate means, we have not as yet addressed the second major issue implicit in the vision statement. The first major issue is "quantity", i.e., the total quantity of people in the county that would be consistent with our vision. The second major issue is that of "quality", which could be roughly translated as "diversity". We want, we desire, we appreciate, we celebrate a diverse population here. We are concerned about gentrification as land prices escalate. Should the above plan be implemented, land prices will continue to rise–short of recommending the county as a national toxic waste dump, there is virtually nothing we can do to stop the rise in land prices. Arguing that nothing should be done regarding the vision statement because a population growth policy will result in rising land prices is irrelevant and moot–land prices will continue to rise and, more importantly, the existing plan already has a growth limitation policy in it. We know we won’t be any bigger than the ‘79 buildout level–the only difference is that it will take longer and the place will be unrecognizable (most would say trashed.)

The challenge, then, is in structuring the incentives and disincentives to favor low and moderate income families to the extent appropriate to achieve diversity. One big direction to point toward is in housing incentives. Perhaps anyone who wanted to build low income housing for himself or as a developer for others would not need to obtain three development rights in order to obtain a permit–maybe only one, or maybe none, depending on the location and income level. Maybe the county could accept donated development rights from individuals who wish to relinquish development rights, get a tax break, and simultaneously designate the relinquished development rights to be allocated toward anyone applying for low or moderate income housing. Individuals who own development rights but have not exercised them might be approached to donate or sell such rights at a lower than market cost for worthy projects. Perhaps the county would waive or modify the requirement for so many development rights to be retired coincident with a building permit for economic development projects that would provide long term (moderate income) employment outside either the construction or tourist industries. Maybe a developer who was exercising a right to develop a piece of property for speculation would be offered an incentive to donate some of the land to a non-profit housing entity (like OPAL) in exchange for requiring less development rights to be retired up front (i.e., the developer might be offered an extended period in which to obtain development rights rather than requiring them to be retired prior to the issuance of a building permit).

There are surely a host of incentive and disincentive plans that can be crafted and experimented with, to achieve both the population and diversity goals of the vision statement, in an atmosphere of good will and mutual recognition of the consequences of failure to honor ourselves and our children. I believe that the process of acknowledging the importance of the vision statement in real population terms and constructing a plan which incorporates a consciously-chosen population ceiling in a real, serious, and immediately-implementable mechanism is essential to honor the trust and expectations that citizens of San Juan County have put in their leaders to guide the county toward its future."

4. Relief Sought:

I request that the WWGMHB remand the plan back to the county and require the following items be added and implemented:

1. Within 3 years from the signing of the comprehensive plan by the county commissioners, the county shall determine the maximum county population size consistent with the vision statement through a consensus-based county wide citizen participation process and shall therefore determine the maximum number of residential structures which it will then permit in order to achieve this population, based upon historical and widely accepted person/household occupancy rates.

2. Within 3 years of the determination of item 1, above, the county shall develop a long range (20 year) plan to acquire and retire development rights over and above those which may be exercised consistent with the maximum number of structures as determined in item 1. This plan will include annual mandatory goals for the retirement of development rights over the life of the plan. The annual development right retirement goals must be approximately equal in magnitude per year unless an alternative development right retirement schedule would achieve the same results with significantly improved (and documentable) benefits to the public.

3. All San Juan County application, recording and filing fees associated with voluntary downzoning by any property owner will be waived; there will be no charge to a property owner for the costs of voluntary redesignating land use densities when such densities are reduced (e.g., from R-5 to R-10).

4. All policies and regulations developed to achieve the reduction of the maximum number of residential development rights pursuant to the requirements of items 1 and 2, above, must adhere to the following restrictions:

No taking: any plan to acquire and retire development rights must include compensation to any landowner for the market value of any development right identified by the county as required to be retired.

No giving: Alternatively, any plan to acquire and retire development rights must not be invalidated by actions to increase the number of development rights in the future. Windfall profits, speculative real-estate behavior and other benefits which might accrue to a specific property owner as a result of government actions must be taxed retroactively to return to the community any and all gains that would have accumulated since the inception of, and as a direct result of, the implementation of policies and regulations developed to achieve the purposes of items 1 and 2, above.

Informed consent: a full analysis of the tax, environmental and social consequences of not achieving item 1, above, will be produced by the county within 3 years of the signing of the comprehensive plan. In addition, the county shall determine the impacts of each voluntary, incentive-based or regulatory method on tax revenues collected by the county, on the price of land, on affordable housing, on reducing the maximum number of developable parcels or development rights consistent with the purposes and intent of items 1 and 2, above. This determination will be both overall and on an annual schedule.

Fairness: the costs of acquiring and retiring development rights in order to achieve the purposes of items 1 and 2 above must be borne in equal proportions among the populations which will benefit from the imposition of this policy. At a minimum these populations include: a) the local existing resident population, regardless of their property ownership status; b) new households who establish residency and/or consume a development right by the construction of a residential structure, regardless of it’s degree of occupancy; c) guests and visitor populations who are transient consumers of county assets, including visitors who do not consume overnight assets or resources; d) non-resident property owners who benefit from the preservation and enhancement of their real property assets as a result of this policy.

Non-regulatory preference: it is San Juan County’s policy to utilize to the maximum extent possible voluntary and incentive-based methods prior to the utilization of regulatory methods to achieve the purpose and intent of items 1 and 2, above. However, when the results obtained from non-regulatory methods fail to achieve the annual goals established by the plan developed in step two, a broad range of regulatory measures will be developed and utilized to achieve the annual goals."

I would emphasize that the policies listed here simply outline only one of any number of processes that might be developed to transform the Vision Statement from a nice sounding but otherwise meaningless preamble used as window dressing on the comp plan to a serious, real and meaningful statement of intention and commitment. To fail to respect the meaning and intentions implicit in the Vision Statement is to make a mockery of the GMA, the planning process, the SEPA-expressed wishes of the citizenry, the plan and the countless hours given to its construction.

5. Conclusion:

I wholeheartedly support paragraph number 8 (Relief sought...) of the Petition. I have focused my remarks on supporting 8 (1) of the Petition. I would merely comment that Mr. Klein’s reference to the "development potential" being "spelled out" in the body of the plan is inaccurate: the development potential is not spelled out in the body of the plan, but merely implied in an appendix, thus making it harder for the average citizen to determine just what exactly may happen in the future. Further, as I’ve suggested, the economic impact analysis done for the county was wholly inadequate, failing to properly account for the full range of impacts that the county will experience, again implying by omission that the problems will be minor. Based upon calculations supplied by a local land use researcher at my request, during the 20 year period from 1972 to 1992, the population of the county increased 3 times and the property taxes increased 12 times. As the county looks forward to a five-fold increase in population from now to buildout, we can only imagine what the increase in taxes might be. Yet taxes represent only a small portion of the impact of this growth. None of these impacts has been articulated, much less studied. None of these have been debated. None of these have been agreed to. All of this must be done, lest we live to hear Joni Mitchell’s words: "Don’t it always seem to go, you don’t know what you’ve got till it’s gone, they paved Paradise and put up a parking lot." A comprehensive plan for San Juan County must, by today’s standards for comp plans, by the GMA’s standards, and as a direct answer to the citizen’s SEPA comments, answer these questions fully. My experience as a citizen appointee to this process convinces me that citizens want leadership to address and resolve the issues presented by Mr. Klein and are willing and able to roll up their sleeves, if given a chance, to resolve differences in order to preserve this threatened archipelago. I want the Hearings Board to require that San Juan County implement a program which competently and comprehensively addresses the full set of issues implied by 1) the total growth we might experience, 2) the growth rate that we will realistically face, and 3) the location of that growth within the county. We need to know what the real impacts are so we, as citizens, can make informed decisions about the future we are planning for.

Thank you for the opportunity to support the effort initiated by Mr. Klein.

Dated this 22nd day of February, 1999

Respectfully submitted,

Joe Symons