Petitioners,                                                                    Case No. 99-2-0010c

v.                                                                    REPLY BRIEF

San Juan County










Joe Symons, Intervenor

3222 Point Lawrence Road

Olga WA 98279


Fax 360-376-2626





1. Purpose:

This reply is directed to the document entitled "Brief of San Juan County" (hereafter: "SJC Brief") submitted by San Juan County (SJC) and dated 27 May 1999.


2. Argument:

Fundamentally, SJC argues in its brief that the County is unique and should be treated differently than other counties. I will demonstrate in this reply that, while GMA permits local discretion, SJC has attempted to stretch its uniqueness claim outside the breaking limit of GMA’s otherwise flexible rubber band.

The irony is that the SJC Prosecutor in his March 27 1998 memo ("Prosecutor’s Memo") to the SJC Board of County Commissioners (BOCC) voiced his concerns about this very issue and quoted the following from RCW 36.70A.070(5) to the BOCC:

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. (emphasis added)

SJC did nothing in adopting the CP to respond to this requirement.

My arguments are:

1. SJC does not meet the standard of review appropriate to the argument they advance.

2. The 1979 densities do not enjoy grandfather protection.

3. SJC’s CP has failed to show its work.

4. SJC’s brief has sidestepped substantive issues while presenting an argument that is in contradiction to recent law.

2.1 Standard of Review

Uniqueness Claim

SJC claims that the county is unique, and consequently should be treated differently:

These facts [the Brief compares SJC with other counties in Washington], taken together with the fact that the county is inundated with tourists for a good part of the year, mean that the growth issues faced by San Juan County are of a different nature than those faced by other counties in Washington. There is no one involved in the planning process who is not acutely aware of the complexity of the challenge. The County has made a valiant effort to try to balance the myriad issues it faces. It asks the Board to consider the unique and real world of San Juan County as it decides the appeals before it in this case. (SJC Brief, pg 2, lines 12/17)

SJC argues that because the County is small geographically, it should be given greater discretion in making local decisions. GMA does not, however, entitle any county to greater discretion due to size or unique circumstance. Indeed, one might argue that because SJC is small, it should be given less discretion because the impact of decisions is much more visible. The point is simple: GMA standards are what they are regardless of county size or claims of uniqueness. GMA offers a county latitude in developing its CP, but holds a county’s feet to the fire by requiring that it demonstrate in writing that their results and process has been in harmony with GMA planning goals (see RCW 36.70A.070(5)). Neither in the CP nor in their Brief does SJC demonstrate they have met this standard. In fact, the Prosecutor’s Memo warned the BOCC months before the CP was implemented that the CP’s density position is indefensible.

5 Acre Bright Line Claim:

SJC claims in its Brief that petitioners have held that the "general bright line has been that parcels of five acres and more constitute rural densities, while smaller densities have a greater potential to lead to urban sprawl." (SJC Brief, pgs 22/23, lines 28 to 1/2). Actually, the petitioners, including this Intervenor, wholly disavow this characterization. The weight of hearings board decisions clearly point to looking very carefully at densities of 5 acre/du or less in rural areas, i.e., densities of this concentration are clearly in a dmz and are subject to heightened scrutiny (see Peninsula Neighborhood Association v. Pierce County, Case 95-3-0071, CPSGMHB, FDO and Bremerton v. Kitsap County, Case 95-3-0039c/97-3-0024c, CPSGMHB at 2652-2658).

An instance in which a 5 acre density was not in compliance with GMA is Vashon-Maury (Vashon Maury, v. King County, Case 95-3-0008, CPSGMHB) which found as follows:

Accordingly the Board holds that the pattern of five-acre lots on Vashon Island does not comply with the Act given the County’s admission that Vashon Island has a history of water quantity and quality problems. (Vashon-Maury, at 78-79, emphasis original)

Vashon Maury is instructive because San Juan County has a history similar to Vashon Island’s of water quantity and quality problems (See CP Element 4 Water Resources for details on the county’s long history with water resource problems).

Summary: However unique SJC wishes to claim itself, it is not exempt from the requirement that "a county may consider local circumstances, but shall develop a written record explaining how the rural element harmonizes the planning goals..." SJC has simply failed to show its homework, either in the small size or 5 acre/du bright line areas, to meet the standard of review.

2.2 Preexisting patterns are no longer grandfathered

SJC attempts to position its density designations as immutable, and that the patterns of development which have occurred based on those designations, which will continue into the future based on those immutable densities shown on the Official Map, are compliant with the Act. This section of the reply brief challenges that position.

SJC claims that it took a "bottoms up" process of adopting a plan and regulations (SJC Brief, pg 3, line 24), implying that it started with a blank slate and/or discussed everything. Yet SJC admits that the discussion of density was off the table (SJC Brief, pg 22, lines 9-18). Aside from the double-speak implication here, SJC frequently claims that it used "existing patterns of development" (SJC Brief, pg 3, line 26) to influence its decisions. The problem with such a position is that pre-existing patterns are not necessarily supported by GMA, and indeed such patterns often need to be changed to meet GMA standards. This was emphasized in the Central Board’s decision in Bremerton (95-3-0039c/97-3-0024c) when the board noted:

However, the advent of the GMA changed land use law in this state in a profound way, changing land use patterns that counties may permit in rural areas. Kitsap County has attempted in its Plan to meet the Act’s requirements while including mechanisms to meet the history-based desires of some of its landowners. Pre-existing parcelization cannot be undone, however there is no reason to perpetuate the past (i.e., creation of an urban land use pattern in the rural area) in light of the GMA’s call for change. This axiom, recognized by the Board in the Bremerton FDO, remains true today:

The County cannot base its future planning for new growth on its past development practice if those practices, as here, do not comply with the GMA. What was once permissible is no longer so. The GMA was passed to stop repeating past mistakes in the future. Bremerton at 71. (Citation from CPSGMHB Finding of Noncompliance and Determination of Invalidity in Bremerton and Order Dismissing Port Gamble pg 2657/2658)

In short, SJC cannot defend itself with the argument that the inertia created by past development patterns (and their associated underlying densities) must control the future. Their argument is legally inadequate to overcome their obligation to "stop repeating past mistakes."

2.3 Failure to show its work

This section of the reply brief challenges SJC on the grounds that its density designations have not been defended in the record and, additionally, that the density arguments presented in the SJC Brief are illusory.

SJC states that:

It should be evident that there is nothing, in and of itself, wrong with retaining the 1979 densities so long as those densities are in compliance with the GMA. (SJC Brief, pg 22, lines 19/20) (emphasis original)

Like the Titanic, steaming forward into the night, consciously noncompliant with the lifeboat requirements for vessels of her size, SJC nevertheless chose not to comply–even in the face of the Prosecutor’s Memo–with the requirement to provide a written record in the CP showing that those densities are GMA compliant. Regarding rural densities, for example, they argue in their Brief that local discretion should allow them rural densities with less than 5 acres/du:

The issue for the Board in this case is whether the specific characteristics of the San Juan islands invite a modification of the "5-acre" rule here.

Regional and local variations and the diversity that exist among different counties and cities are to be reflected in the use and application of these procedural criteria. Local jurisdictions are expected to use a pick and choose approach. Following these criteria is appropriate, in any case, only to the extent necessary to fairly meet the intent of the act in the particular situation. (SJC Brief, pg 23, lines 2/6) (indentation original)

and after comparing SJC with Lincoln and Skagit Counties, the SJC Brief goes on to say:

However, in San Juan County, where the population is distributed among a half a dozen or more small islands and the scale is more in keeping with a village of hobbits than a Marlborough ad, it does not make sense to have the same definition for "rural" as is used in Lincoln County, or even Skagit County." (SJC Brief, pg 23, lines 16-19)

My point is, other than their claim that "it does not make sense", there is no written record to support SJC’s claim that rural densities should be less than 5 acres. The Vashon water problem density ruling isn’t even on SJC’s radar screen. SJC has failed to show any justification for the densities they have chosen–recall that they simply adopted them wholesale from the 1979 CP–much less any defense of them as reasonable.

SJC’s theory is that hobbit country justifies hobbit densities:

After making comparisons between the diverse character of the counties of this state and looking at the unique local circumstances of San Juan County, it is reasonable to find that the densities of San Juan Island’s farmlands and forests are appropriately smaller than those of Lincoln, Skagit or Whatcom counties. (SJC Brief, pg 24, lines 11/14)

One might argue the exact opposite: that because we are small geographically, we must be even more sensitive about densities. Cars and houses and roads and people aren’t smaller even if the island land masses are in smaller chunks. It’s not as if when people arrive here the county waves a wand and does a "Honey I Shrunk the People" transformation. Five acres looks the same whether one is in La Conner (Skagit County) or Olga (Orcas Island, San Juan County). So does sprawl.

The scrutiny of the Act is size independent as well. Neither the CP (where the rationale for densities belongs) nor the SJC Brief offers an analysis to support the argument that rural densities can be higher (i.e., less than 5 acres/du) in SJC and still harmonize the Act’s planning goals. Certainly the Citizen Advisory Committees (CACs) and Steering Committee (SC) didn’t certify this in the "bottoms-up" planning process–they were prevented from considering it. Neither GMA nor the cases interpreting GMA support SJC’s theory of hobbit densities for hobbit counties. There is no authority in GMA to stretch the "local circumstances" rubber band this far out. Certainly, SJC is not entitled to use arguments in their brief that are not in the CP.

That the county used the 1979 densities, however, is less the issue than the fact that they developed no written record to justify them. SJC’s statement that:

In addition, it was clear that focusing on density would be to invite a repeat of the deep animosities and divisions that emerged from the density discussions of 1979 (SJC Brief, pg 22, lines 14/16)

is not a legal basis for failing to develop a written record justifying those densities. SJC is no stranger to controversy. To base a CP on a desire to avoid real work and instead hold hands and sing Kumbaya is fatuous.

2.4 Sidestepping the Big Picture

I will show in this section that SJC’s brief stumbled over their legal feet while trying, unsuccessfully, to obfuscate the issues presented in my Brief.

SJC stated in its brief that:

Symons argues that the County erred in using OFM figures to project population growth and that this error resulted in a fundamental misrepresentation of the County’s future. (SJC Brief, pg 28, lines 3/5)

SJC goes on to claim that Symons’ arguments, however "understandable", are irrelevant because the County must use OFM data. There are several problems with SJC’s allegations.

First, I did not claim that the county erred in using OFM figures to project population growth. As I argued in my Brief, nothing in the GMA requires SJC to use OFM’s population growth rates in its buildout analysis for the entire County (Symons Brief pg 11 lines 21/22). SJC responds to my argument by citing Dawes v. Mason County, WWGMHB, Case 96-2-0023 FDO, 2195 (Dec. 1996) and stating that "The County is not only entitled to rely on OFM population projections, it is required to do so." (SJC Brief, pg 28, lines 5/7).

The interpretation of the GMA’s mandate with respect to rural areas and OFM growth rates is now governed by Clark County Natural Resources Council v. Clark County Citizens United, Inc., 972 P.2d 941, 1999 Wash. App. Lexis 464 (March 12, 1999) The Court of Appeals held that the GMA does not require counties to use OFM’s population projections as a cap or ceiling on non-urban growth (Clark County at 943) Consequently, SJC is not entitled to defend its application of the 2.5% growth rate to the entire county simply because that figure is within the OFM range on numbers, which is precisely what it did in the CP (See CP, Appendix 1, page 6.) The County’s blind acceptance of the OFM population projection for a county-wide analysis (in a largely rural county) is particularly unjustified given that the historical growth for San Juan County over the last 23 years was 5% (Symons Brief, pgs 20-22).

Second, the growth rate issue is merely a sidebar to the buildout population issue discussed in my Brief, to which SJC’s Brief made absolutely no reference. By implication one can conclude that SJC accepts my buildout analysis and arguments.

Third, my inconsistency claim regarding the Vision Statement and the density designations on the Official Maps is dominated by concern for how large the County’s population will grow rather than, as SJC asserts, that it is based on how fast the County will grow; SJC made no counter-argument to this claim.

Fourth, the OFM growth rate argument presented by SJC (SJC Brief, pg 28, lines 2/14) is simply a smoke screen for the fact that SJC failed to counter the inconsistency argument I present. The bottom line to my argument is that, whether or not SJC uses the OFM growth rate, the buildout population is the same and it is inconsistent with the Vision Statement. As stated in my brief, the OFM growth rates are for urban areas, and SJC has no written record–harmonizing the planning goals of the Act–showing how it allocates population using those urban growth rates among urban (UGA’s and nascent UGA’s like Eastsound and Lopez Village) and the rural areas of the county.

Whether SJC is planning for the increased number of people coming here or not is not my point. Of course the County is planning for the OFM population. They don’t even have to plan for it. The existing densities completely support it. In fact, the record shows that they haven’t planned for it. SJC simply projected the OFM population forecast out over the entire county landscape for the planning period and dusted off their hands. There was zero attempt, and there is zero evidence in the record, to show that SJC allocated population between urban and rural areas of the county in the manner required by GMA.

Finally, SJC’s suggestion in SJC Brief pg 28 lines 13/14 that the Symons Brief argued that the county should turn people away is evidence that SJC has failed entirely to realize that it has an obligation to its citizens to craft a comprehensive plan consistent with the Vision Statement, a plan element SJC characterized as "the foundation upon which the entire Comprehensive Plan is based." It is also a complete mischaracterization of my brief. For me to ask the WWGMHB to rule on an inconsistency claim is simply to ask the board to hold SJC accountable. For SJC to fudge their responsibility under the Act by accusing their accusers is a time worn strategy, in this case one which has worn too thin.

3. Conclusion:

SJC must defend its claim of "local circumstances" with a written record, which explains "how the rural element harmonizes the planning goals in RCW 36.70A.020", and has failed to do so. There is no hobbit provision in the GMA which exempts small counties from GMA density standards. Pre-existing patterns of development, institutionalized by a pre-GMA density designation scheme do not earn grandfather privileges. Specifically, SJC has failed to do the work necessary to justify 5 acre/du rural densities much less lower acreage/du densities. The County’s 5 acre/du densities (and less) in rural areas should be highly scrutinized and certainly not accepted de jure. All these density issues notwithstanding, SJC’s Brief misses entirely the inconsistency point raised by Intervenor Symons’ Brief, and by failing to comment on the substantive issues raised in his brief, implies a concession to his arguments. Once again, the 800 pound gorilla standard, articulated in Intervenor Symons’ brief, is that even if all SJC rural densities were rewritten to be 10 acres/du , SJC would still be vulnerable to an inconsistency argument vis-á-vis the Vision Statement and would be required to demonstrate in writing that its plan is in harmony with GMA. The density issue I presented in my Brief regarding SJC’s CP and currently before the Western Board focuses on looking at the forest rather than just the size and number of trees. The whole is something different than the sum of the parts. The Vision Statement speaks to the whole while the density designations appropriate to rural lands–the main focus of current appeals and GMA Board ‘density’ rulings throughout the state–speak to the parts. SJC is faced with resolving both problems consistent with GMA standards.



4. Parties Served:

A Declaration of Service accompanies this brief.


Dated this 8th day of June, 1999

Respectfully submitted,

Joe Symons