JOHN M. CAMPBELL, AND LYNN BAHRYCH, et al., ) No. 99-2-0010c




v. )




Respondent, )


and )



KAREN SPECK, et al., )


Intervenors. )


In 1998 Respondent San Juan County ("the County") adopted a comprehensive land use plan ("CP") under the provisions of RCW 36.70A, the Growth Management Act, after a planning process which had begun some six years earlier. On December 20, 1998, the CP and its implementing regulations in the Unified Development Code ("DRs") became effective. Amicus Curiae Maile Johnson ("Amicus"), a County resident, has standing in this case by virtue of her participation in that planning process from its inception. The record in this case includes letters from Amicus dated August 11, 1996, October 30, 1997, December 2, 1997 and March 1, 1998 , among others, and reference to her oral testimony on various dates.


It is common knowledge in the San Juan County community that the density zoning enacted in 1979 after years of freedom to develop almost at will, was controversial, aroused passions and involved no evaluation of the cumulative impacts of development on rural character or conservation of natural or cultural resources. The preference of land owners was surely the single most influential criteria applied. Though a valid and useful beginning for local planning at that time, it is an understatement to say this process was more arbitrary than evaluative and by no means can be deemed to comply with State law requirements for attaining the widest range of beneficial uses of the environment, achieving a balance between population and resource use, or providing a rational basis for directing development patterns and accommodating change based on designation of lands and evaluation of impacts. RCW 43.21C.020(2)(c), (f) and 36.70A.

Amicus remembers feeling astonishment when at the commencement of the GMA planning process, San Juan BOCC informed Planning Department staff and Citizens Advisory Committees that density of development would not be an open topic during the process and that the resulting plan would retain the 1979 densities. From this initial announcement until enactment of the CP six months ago, BOCC maintained that change in densities was not open for consideration. Perhaps this policy decision was based on the hope the planning process could gain stature and confidence in the community if it avoided a topic that had roused rancor in the past. Yet in this fateful circumscription of what planning could consider lay a crippling of the planning process and a violation of State environmental law and GMA's requirements. Amicus believes it is irrational, illusory and impossible to plan development and evaluate its impacts without considering where and how much development there is.

RCW 43.21C.030(2)(a) requires that "counties shall (u)tilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man's environment." Allowing an arbitrary, default and politically convenient decision in an 18 year old zoning law to determine the ultimate amount of development and its distribution, without ever evaluating the impact of this development on resource lands, water resources, critical areas, wildlife habitat, topography, transportation, capital facilities, economy and community etc. is a gross violation of the requirement for a systematic and interdisciplinary approach to the task of developing a rational comprehensive land use plan and one that achieves a balance between population and resource use and maintains the widest range of beneficial uses of the environment. RCW 43.21C.020(2)(c) and (f). Certainly there was no systematic evaluation of how to accommodate growth, designate rural areas and assign densities that would maintain a rural character. Amicus understands that this was felt to be a politically impossible task.

The GMA requires communities to designate lands, to establish goals through public process, to evaluate impacts of development, to use innovative land use management techniques to achieve its goals, to establish policies designed to achieve its goals and to provide a rational and predictable basis for accommodating change. None of these processes can occur without a rational, thorough and systematic analysis of density of development on each issue considered. Amicus believes the results of the 1979 density choices will be results the GMA is designed to end, namely the inappropriate, unrestrained and unguided conversion of undeveloped rural land to sprawling, low-density development, the failure to conserve resource lands and water, and the loss of wildlife and other natural and cultural resources . San Juan County's failure to consider the impacts of arbitrary density designations in the course of its GMA planning process renders its present plan noncompliance with numerous primary goals of GMA.

The SJC plan contains a further fatal flaw in that it creates the illusion of having enacted policies that would implement the goals articulated in its Vision Statement. The Vision Statement is the guiding portion of the plan, it entailed the broadest and most thorough public participation of any part of the plan, and it rings with joyful and staunch commitment to the goal of maintaining the islands' rural character and natural beauty. The plan violates the GMA requirement of internal consistency and rationality because what the plan legislates is not what the Vision Statement implies it does.

The islands today retain a largely forested appearance, creating the impression of a low level of density and development. Numerous undeveloped parcels exist and many thousands more can be created. (CP Appendix 9, FEIS, Table 1.1 page 1-4). Crucial to comprehension of this case is the realization that retaining the 1979 densities means transformation of the islands so profound as to annihilate the rural character citizens declared, in the course of the GMA process, to be the over riding goal of all planning efforts. (CP Appendix 9, FEIS 1.3) Table 1.1 cited above indicates that in the total of 15,501 existing parcel in the county there are 6562 existing undeveloped parcels, and that another 14,827 parcels can be created under the CP.

GMA requires a county to plan with reference to the population projections made for the county by the State Office of Financial Management ("OFM") The growth rate selected by San Juan County for the twenty year planning period of the CP and the OFM projections yield a projected population in the year 2015 of 20,442. (CP Appendix 1, Table 6) This is an increase of 10,407 residents over the 1990 population of 10,035. At the 2.25 occupancy rate used by the County, the existing 6562 undeveloped parcels would accommodate 14,764 additional residents without any further subdivision in the planning period’s twenty years, while we need only plan for an additional 10,407. All county residents will view the OFM projections with the greatest skepticism however, because the actual rate of population increase they have witnessed in the last 25 years has been dramatically higher than the rate calculated by OFM and selected by the County for planning purposes. (One can calculate an average annual growth rate in excess of 5% for 1970-1990 from the figures in Appendix 1, Table1).

A range of densities are indicated on the CP’s Official Maps. Those for the rural areas permit one dwelling unit per.5 acres, per 2 acres and per 5 acres, respectively. Amicus submits that these densities are too intense to be characterized as rural. Knowing that the CP permits unrestrained creation and development of a vast over supply of parcels, over 70% of which are in the rural area, one can see most assuredly upon the near horizon and in utter contradiction of the picture conjured in the Vision Statement, sprawling low-density development where once a rural landscape lay. ("70% of the developable land in the county is in RFF [Rural Farm Forest designation]" FSEIS, Appendix 9 p2-24. ) The CP is internally inconsistent thus violating the requirements of RCW 36.70A.070 that a comprehensive land use plan "shall be an internally consistent document and all elements shall be consistent with the future land use map."

Including a Vision Statement pronouncing as prominent the goals most dear to the citizens in a plan that makes no attempt to achieve those goals or even to reveal they are impossible to realize under the plan, has denied citizens the opportunity, intended by State environmental policy to be secured to them, of rationally planning for their and their children's future, "(f)ulfilling the responsibilities of each generation as trustee of the environment for succeeding generations". RCW 43.21C.020(2)(a).

The plan’s alleged failures to plan systematically and consistently, to reduce the conversion of undeveloped land to low-density urban sprawl, to prevent urban development in rural areas and to conserve rural character and resource lands, constitute substantial interference with the primary goals of the Growth Management Act. The Petition in this case has requested that the Board find the relevant portions of the CP invalid and and remand them to the County for further proceedings to effectuate all GMA goals and the Vision Statement.


1. Does CP Section 2.1C, which retains the 1979 zoning densities, fail to comply with the Act, specifically sections .020(1),(2) and .110? (Issue 1, prehearing order made in this case).

2. Do the density provisions in designated resource lands comply with GMA? (Issue 12, prehearing order).

3. Is the CP internally consistent and/or consistent with the adopted DRs? (Issue 10, prehearing order).


Does CP Section 2.1 C, which retains the 1979 zoning densities, ffail to comply with GMA Sections .020(1), (2) and .110?

The CP contains land use designations which establish permissible uses and its Official Maps ("the Maps") apply those designations and establish the permissible maximum density per acre in delineated areas. (CP 2.2.A(7) Land Use Element)The result is the characterization on the Maps of some 46,358 acres (of an approximate county total of 100,000 acres) as Rural Farm Forest ("RFF") with a permissible maximum density of either 1 du per 2 acres or1 du per 5 acres. (Acreage numbers from Table 1-2 SEIS, Appendix 9.) A cursory glance at the Maps will confirm the writer’s point here, that the areas with these densities, called Rural Farm Forest, are of significant extent throughout the county. This is further supported by the information in the FSEIS, Appendix 9 p. 2-24 that "70% of developable land in the county is designated Rural Farm Forest."

Sections .020(1), (2) and .110 of the Act require that a plan

    1. Encourage development in urban areas . . .and
    2. Reduce the inappropriate conversion of undeveloped land into sprawling, low-density development..

Section .110 requires the CP to designate urban growth areas outside of which growth can occur only if it is not urban in nature.

Other sections of the Act are relevant. Section .030 (14) provides that rural character refers to patterns of land use in which open space, the natural landscape and vegetation predominate over the built environment, and which provide visual landscapes that are traditionally found in rural areas and communities. Section .030 (15) defines rural development as consisting of a variety of uses and residential densities at levels that are consistent with the preservation of rural character.

Section .030(17) defines "urban growth" as growth that makes such intensive use of land for the location of buildings as to be incompatible with the primary use of the land for the production of food or other agricultural products, the extraction of mineral resources, rural uses or rural development..

The Growth Management Hearing Boards have developed caselaw elucidating and applying these provisions and have found that rural densities greater than 1 du per 10 acres must be closely scrutinized to determine whether they comply with the Act. Gig Harbor, CPSGMHB 95-3-0016 held a density of 1du per 2.5 acres to be urban and impermissible in a rural area. Bremerton , CPSGMHB 95-3-0039 held a density of 1 du per 2.5 acres to be urban and that 1 du per 5-10 acres may form a pattern of development that is rural only if it does not amount to urban growth, threaten natural resource lands or otherwise conflict with the Act. Vashon-Maury, CPSGMHB 95-3-0008 stated that density greater than 1 du per 10 acres would receive close scrutiny to ensure the number, location and configuration of lots did not establish a pattern of urban development, threaten resource lands or critical aquifer recharge areas, or thwart the long term flexibility to expand urban growth areas. Sky Valley, CPSGMHB 95-3-0068c determined that rural densities permitting one or more du per 5 acres were generally not compliant with GMA and that the exceptions to this rule would be few. This decision found densities greater than 1 du per 5 acres a prima facie violation of GMA and that the development allowed in a rural area designated entirely in 5 acre lots would be impermissibly dense unless balanced with larger parcels in the rural area.

The present Board has had occasion to apply these provisions and in Friends of Skagit, WWGMHB 95-2-0065 ruled that densities in rural areas in excess of 1 du per 5 acres are not in compliance with GMA and substantially interfere with GMA goals. In Whatcom Environmental Council, WWGMHB 94-2-0009, zoning permitting 1 du per acre, 1 du per 2 acres and 1 du per 3 acres were found not to comply with GMA. Such densities were described as "suburbanization" which the Board emphasized is no longer allowed by GMA and the densities of 1 du per 1 acre and 1 du per 2 acres were found to interfere substantially with GMA goals.

In Smith v. Lewis, WWGMHB 98-2-0011c, Lewis County cited Hudson, WWGMHB 96-2-0031 for the proposition that a rural density of 1 du per 5 acres was acceptable. The Board’s opinion in Smith distinguished Hudson by explaining that 5 acre parcels were accepted there because subdivision that had already taken place left no larger lots available in the 1300 acre "developed" designated agricultural lands and that outside this area the Board "welcomed" 16 acre lots. Without the balance of 10 and 20 acre parcels, the board explained, extensive use of 5 acre parcels allows too high average densities to constitute an appropriate and GMA compliant land use pattern in rural areas. The Board referred also to Achen v. Clark, WWGMHB 95-2-0067 in which a density designation of 1 du per 5 acres throughout the county’s rural areas was invalidated where the record showed that a variety of densities would decrease low-density sprawl and would increase resource land buffering. Thus in Cotton, WWGMHB 98-2-0017, Jefferson County’s designation of rural densities as 1 du respectively per 5, 10 and 20 acre lots was found to be compliant. The Washington State Department of Community, Trade and Economic Development ("CTED") guidelines were cited in Smith v Lewis County (supra at p5) and provide that densities of less than 1 du per 10 acres and 1 du per 20 acres should predominate in rural areas. In Dawes v Mason County, 22540-9-II (Slip Op. 3/5/99) the Appellate Court upheld this Board’s earlier holding that parcels of 1 and 2.5 acres in size were per se urban.

Designations of Formerly "Suburban" Areas Remain Suburban, Changed in Name Only, and are Not Compliant with GMA

In San Juan County the CP applies designations of 1 du per .5 acre and 1 du per 2 acre to approximately 12,000 acres of rural land. (Appendix 1 Table 18 p19) As mentioned above the County’s total acreage is approximately 100,000 acres. These areas were formerly designated as "suburban" in the 1979 zoning, and their renaming as "rural" does not satisfy GMA requirements. "[L]ocal governments do not possess the authority to change the definition of urban growth." Whatcom, supra at p7. Such densities permit an intensity of development which was aptly named "suburban" and they are a per se violation of GMA under the cases cited above. They allow the inappropriate conversion of undeveloped land to sprawling, low-density development, contrary to GMA Section .070(5)(iii). GMA Section .070(5)(iv) requires a CP to contain rural development in order to protect rural character. These densities permit urban development in rural areas contrary to the primary goals and directives of the Act and have been applied to extremely large areas, apparent on the Maps, and amounting to approximately 10% of the County’s territory. The sprawling and urban development permitted by these densities would abolish the rural character in the areas where it was permitted and by raising the average density in the rural area would impair rural character overall.

The Excessively high Rural Densities Threaten Natural Resource Lands

The rural areas designated with these intense densities of .5,2 and 5 acres pose numerous critical problems. Where they are near or abut resource lands, they clearly threaten conservation of those lands, which is a significant requirement of the Act. East of Orcas Village and West of Deer Harbor, .5 and 2 acres densities border resource lands; 5 acre densities abut resource lands in numerous places throughout the islands. To allow incompatible uses near to resource lands has been held by the Washington Supreme Court to impair the viability of the resource industry. City of Redmond v. CPSGMHB, 136 Wn.2d 38, 959 P.2d 1091 (1998). Effective buffering is not possible with parcels of such a small size and other impacts conflict as well. In Achen v. Clark , WWGMHB 95-2-0067 , while finding density designations did not adequately conserve resource lands when parcels smaller than 10 acres adjoined resource land, this Board stated that a county must adopt techniques to buffer resource lands, that strong consideration must be given to aggregation of parcels of nonconforming size where they adjoin resource lands, and that a county must prevent incompatible uses from encroaching on resource lands. "[A]llowing urban size lots near resource lands is not in compliance with the Act. If there is no way to eliminate the lots due to prior vesting some action to effectively buffer and keep the conversion pressure away from the resource lands is required under GMA." Achen, February 5, 1998 Order p 9. The CP itself states that it is a high priority of the CP to favor such resource actives and clearly the overwhelming desire of the community was for a rural land use pattern with agricultural and forest uses predominant. (CP Sections 2.3.B and 2.3.C.a. and b.; CP Appendix 9 FEIS 1.3).

The Excessively High Rural Densities Thwart the Flexibility of Urban Growth Areas and Activity Centers to Expand

Designating such high densities as .5 and 2 acres adjacent to urban growth areas has been found to thwart the flexibility of the urban growth area ("UGA") to expand in the future. In a rural county such as San Juan where there is only one UGA on one of numerous inhabited islands, and rural Activity Centers provide services to residents of the surrounding area, abutting Activity Centers with such dense growth would seem to pose the same conflict. The high density of 1 du per 2 acre lot has been applied east of the activity center of Orcas Village, west of the activity center of Eastsound Village and west of the urban growth area of Friday Harbor.

Sky Valley , supra, held .5 acre, 1 acre and 2.3 acre lots noncompliant rural densities, and said where they ringed the UGA that it was hard to imagine a more tangible impediment to the long term flexibility to expand those UGAs or a clearer example of a sprawling pattern of development. Orcas Villages, Eastsound Village and Friday Harbor are all on the shoreline, so abutting areas of small parcels thwart flexibility to expand even though they do not "ring" them. The Board noted that the CP at issue there included a plan objective of sharp edges between urban and rural lands, and found the high densities invalid for inconsistency with this objective. San Juan County’s CP also contains a goal of maintaining rural character at the borders of Activity Centers. (CP Land Use Element 2.3A(10)). In the Vision Statement the CP provides that "[n]eighborhoods, hamlets, villages and towns are clearly defined …" ( CP Introduction Table 1).

Consulting CP 2.2A(3) one finds another goal of the plan to be to direct high density residential and mixed use development into Activity Centers to prevent sprawl and relieve growth pressure in the surrounding rural areas. The .5 and 2 acre parcel designations do not comply with the major goals and numerous provisions in the Act regarding rural land and contradict other CP provisions, making the CP inconsistent.

The Rural Farm Forest Densities Permit Sprawl on Most Islands

The Rural Farm Forest ("RFF") designation which the Map applies over some 40% of the County’s territory includes designations which range from 2 to 15 acres. (CP Appendix9 SEIS p 1-2. On Shaw Island RFF is given a density of 5 acres. On Orcas RFF is either designated into 2 or 5 acre parcels. San Juan Island has some areas of 10 acre RFF and of 2 acre RFF with the balance designated 5 acre. Only Lopez Island has what seems a more appropriate mix of densities, with the smaller parcels balanced with some RFF lands designated 15 acres. The CP defines the size of RFF lands as being parcels of generally 5 to 10 acres, while the Maps clearly create RFF parcels as small as 2 acres and suggest the average density of RFF to be 5 acres or less. (CP Land Use Section 2.3.Ca & b).

Amicus contends the Maps establish a pattern of development that throughout RFF is at or above the intensity level that the Boards have held must be subject to close scrutiny or is in violation of the Act. The cases cited above provide that there is a burden on Respondent to establish that this land use pattern does not impermissibly establish a pattern of rural sprawl and urban intensity of development in the rural landscape. Amicus submits that the requirements of GMA have been applied in a clearly erroneous manner in establishing rural density.

Without the .5 and 2 acre areas, which are per se violations of GMA, the vast majority of the entire rural area of the County outside of resource lands is designated RFF. On all islands but Lopez, where there is some RFF in 15 acre parcels, it is a pattern unbalanced by larger parcels, which otherwise might redeem it. That there may be some larger parcels on one island does nothing to redeem a pattern of 5 acre and smaller lots on the others, for the averaging of impacts can scarcely occur from one island to another. If the 2 acre density designation is found to violate the Act, as it has in so many other cases, the RFF pattern as it occurs on Orcas and Shaw Islands also fails to establish a range of densities as required by .070(5)(b) of the Act. (Amicus has found no case that holds a rural density of one du per 2 acres to comply with GMA). As in Achen, supra, a rural pattern of all five acre lots would provide no variety of rural densities nor an overall average rural density, nor provide adequate buffering and conservation of resource lands. Even if one considers the .5 and 2 acre parcels, which Amicus submits are urban densities, to provide a range a rural densities, on all islands by Lopez that range would extend from .5 to 5 acres, while previously cited caselaw and CTED guidelines suggest 10 and 20 acre parcels should predominate.

San Juan County lacks adequate affordable housing (CP Appendix 5, Housing Needs Assessment). The Board has noted in its ruling in Dawes v Mason County, quoted in the Appellate Court decision, supra, allowing urban development in rural areas may lead to the need for urban infrastructures and services, contributing to increased housing costs county wide. The Mason County CP had provided for some more intense rural development than at issue here, but where as here the rural area is entirely designated to average densities of 1 du per 5 acres or greater (more intense) which requires close scrutiny under the Bremerton rule ("the bright line" at 10 acres requires greater scrutiny of smaller parcels) the high proportion of rural land designated 5 acre or less raises the issue of increased costs attributable to so much intense residential development and the consequent impact on housing costs.

The arguments and authorities presented here have so far ignored the impact of CP Section 2.2A(12) which allows one guest house (accessory dwelling unit) ("ADU") for each principal single family residential unit. The Uniform Development Code (DR) permits a guest house to be attached or detached. (UDC Section 4.18.1). Allowing two residences on a parcel, even where one is subject to a size limitation (here, of 1000 square feet) effectively doubles the density of development and its impacts. Amicus has argued that .5 and 2 acre parcels in rural areas violate GMA per se, and that the remaining 5 acre average density pattern also fails to comply with requirements for rural lands and rural character for numerous reasons even absent a provision permitting a guest house per residence. Amicus suggests that a provision for doubling density in otherwise impermissibly intense development cannot comply with GMA and seriously and significantly interferes with its goals.

The Act requires a consistent plan and a plan is considered inconsistent and in violation of the Act when its provisions thwart one another. Sky Valley, supra. , citing Best Seattle Defense Fund, CPSGMHB 94-3-0016. Permitting guest houses increases density, and hence development potential, in a rural area that already has excess development capacity, thwarting the previously cited CP goals to direct growth to Activity Centers, relieve growth pressure in surrounding rural areas and to preserve rural character.

Permitting one guest house or ADU per residence in rural lands doubles the potential density of development in rural lands. In Whatcom Environmental Council, WWGMHB 94-2-0009 this Board noted that in that situation an abundance of rural lands available for residential development provided little incentive for growth to occur in the existing urban areas. Clearly it is difficult to attract growth to activity centers when the rural area of San Juan County holds thousands of undeveloped lots, is capable of subdivision into many more thousands of undeveloped lots, and the density of permissible development on those lots is doubled. In Sky Valley, CPSGMHB 95-3-0068c, the Snohomish County CP established rural densities which were largely a reflection of those in the pre-existing subarea plans, just as San Juan County’s CP establishes the same densities as in its 1979 ordinance. The Board noted the County did not refute the allegation that the rural densities were largely a reflection of those in the pre-existing subarea plans. "It is not a surprise this creates a 300% excess capacity for rural growth [based on the relevant OFM population growth projections]." To the Board, the fundamental laws of supply and demand suggested growth rates would be higher in the rural area, with its 300% excess capacity, than in the designated UGAs which had an excess capacity of 14.5%. "It is difficult to fathom how such an excess in the rural area is consistent with the policy directive [in the CP] to reduce the rate of growth in the rural and resource areas." Sky Valley, March12,1996 Order, p 55. Similarly it is difficult to fathom how San Juan County’s CP’s goals of maintaining a primarily rural character and healthy natural ecosystems in which native plants and animals thrive (CP Introduction, Vision Statement, Table 1) can not be thwarted by doubling the density in rural areas already zoned to permit urban rates of growth, at 1 du per .5 or 2 acres, or, if those were eliminated, an overall pattern of 5 acre parcels. Even a rural land use pattern averaging to a five acre density overall, and even with one single family residence and no guest house per parcel, would seem likely inadequate to avoid disturbing natural ecosystems and no such evaluation has been done in the preparation of the CP to reach this conclusion.

In Peninsula Neighborhood Association v Pierce County, CPSGMHB 95-3-0071 the Board ruled that construction of a detached, new, accessory dwelling on a parcel less than 10 acres on size is generally prohibited because it would amount to two free standing dwelling units. The effect would necessarily be one freestanding dwelling unit on a lot of five acres or less which the Board had previously held to constitute urban growth. The Board found the ADU provision violated GMA Section .020(2) and .110(1). The opinion also stated that regardless of the size of the lot the Board found that and ADU if attached to the main residence, or converted from a detached existing building in close association with the primary residence, such as a garage, would not constitute new urban growth. Amicus submits this same rule should apply in San Juan County. Clearing for residential construction in a region forested with tall trees results in great swathes of forest being felled to gain solar exposure for the new residence. Allowing two separate dwelling units on an a parcel of less than 10 acres in these islands constitutes a great threat to the forest ecosystem and the forest resource industry. Conservation of the latter is a primary goal of GMA. Conservation of the former is a primary goal of the CP Vision Statement. Paragraph 2 of the Introduction to the CP provides that "[t]he Vision Statement is the foundation upon which the entire Comprehensive Plan is based." The density resulting from allowing detached ADUs on parcels less than 10 acres in size is not compliant with GMA requirements permitting urban growth only in urban areas.

In Dawes, supra the Appellate Court upheld this Board’s ruling that Mason County’s CP included a rural element which was oversized, in that it had excessive density levels relative to the OFM projected population. San Juan County also has an excessive oversupply of rural development capacity. Under the CP densities there are over 20,000 existing and potential undeveloped parcels for a projected population increase of just over 10,000 people in the planning period. (citations above) Amicus submits that the CP designates densities in a clearly erroneous manner under GMA, failing to encourage, direct and confine growth in the urban areas, failing to confine urban growth to the urban areas, permitting conversion of undeveloped rural land to sprawling low-density development and failing to conserve resource lands from encroaching incompatible uses.

Amicus also submits that the densities for rural areas do not comply with GMA and substantially interfere with the Act’s goals. In Whatcom Environmental Council, supra at p. 20 the Board declared the test for "substantial interference" with goals of the Act to be whether the challenged provisions of the CP encourage rather than reduce the inappropriate conversion of undeveloped land into sprawling, low-density development. Where the CP does nothing to encourage growth in urban areas and designates its rural lands with densities that are per se violations of GMA Section .020 and others that are greater than those deemed appropriate by CTED and caselaw for rural areas, where the resource lands are not buffered from encroaching incompatible uses and when the capacity created is far greater than that needed, the CP would seem to be encouraging the inappropriate conversion of undeveloped land to sprawling, low-density development, thus unhappily meeting the test.

San Juan County also has primary, fundamental goals in its Vision Statement of remaining small and quiet, remaining rural, conserving its resource based industries , its natural beauty and the health of its ecosystems. These goals are thwarted by the desnsity designations in rural lands and by the policy permitting detached accessory dwelling units, thus unhappily meeting the test for inconsistency in the plan.


Do the density provisions in designated resource lands comply with the GMA?

2.3C(a) and (b) of the Land Use Section of the CP define the size of agricultural resource lands as ten acres or larger and of forest resource lands as 20 acres or larger. These definitions are glaringly contradicted by the Maps, which identify resource lands as ranging in size from 5 acres to 40. It is one of the thirteen primary goals of GMA to designate and conserve resource lands. GMA Section 020(8). Section .030(2) and (8) provides definitions in which agricultural and forest lands are defined as being land primarily devoted to the commercial production of (various) agricultural and forest products respectively, and that have long term commercial significance for such production. The definition of forest land requires that certain factors shall be considered, including inter alia "(a) the proximity of the land to urban, suburban and rural settlements; [and] (b) surrounding parcel size and the compatibility and intensity of adjacent and nearby land uses." CTED Guidelines for resource lands are at WAC 365-190-050. Section .060 of the Act requires the discouragement of incompatible uses of resource lands and a body of caselaw requires buffering resource lands from incompatible uses. Redmond v. Growth Hearing Board, 136 Wn 2d 38, 959 P. 2d 1091 (1998) recognizes that allowing conversion to other uses or allowing other uses nearby resource lands impairs their viability. Clearly then, subdividing resource lands and permitting conversion of portions of smaller and smaller parcels to residential and other uses at some point thwarts the goal of the Act to maintain and enhance natural resource lands.

In Abenroth v. Skagit, WWGMHB 97-2-0060c, this Board was careful to assure specific regulations permitting 4 clustered residences on a 40 acre parcel of agricultural resource land would insure the resulting growth would not constitute inappropriate growth, would not threaten the continued viability of the remaining farmland and would remove only a small percentage of the land from ongoing long-term agricultural usage. Diehl v. Mason County, WWGMHB 95-2-0073, found a petitioner’s argument persuasive that the County’s proposed density provisions for resource lands were "fatally flawed by a failure to restrict subdivision of the larger, more economically viable parcels into units so small as to have little value for agricultural production, which would then be further hampered by allowing incompatible residential uses of such parcels." The density provisions invalidated in that case permitted two residences to be clustered on 10 acres, leaving 7.5 acres for agriculture. The Board noted that it had previously held in Hudson & Huber v. Clallam County, WWGMHB 96-2-0031, and other cases, that non-clustering average densities of 1 unit per 5 acres in resource lands does not comply with the Act.

San Juan County’s resource lands are no less vulnerable to loss and impairment due to nearby incompatible uses and no less subject to the goals of the Act for their maintenance and enhancement. As mentioned, the Maps permit subdivision of much resource land to a density as great (intense) as one residence per 5 acres, thwarting the intent of provisions in CP Land Use 2.3C(a) and (b) to preserve resource lands in parcels of 10 agricultural and 20 forest acres, densities more in line with the caselaw from other jurisdictions. The CP densities must be further evaluated in light of the development regulations of the UDC which permit non forest or agriculture related uses on resource land to occupy as much as 20% of the parcel. Note 14, Table 6.2, Section 6 and Section 3.5(2). The provisions of Sections 2.3(a) and (b) embody determinations, required to be made by the County by GMA Section .170(11), that parcels of 10 acres of agricultural lands and 20 acres of forest lands were viable and had long term commercial significance for agricultural and forest production in San Juan County. Subdivision below these parcel sizes does not comply with GMA because it fails to afford the protection of resource lands the Act intends. Permitting subdivision to such densities is a clearly erroneous application of GMA.

Farming, forestry and fisheries have been the primary activities in these islands since Europeans arrived and they are recognized as highly favored activities both in the CP at 2.3.B., 2.3.C.a. & b. of the Land Use Element and in Right-to-Farm and Right-to-Forestry ordinances. Our grandchildren will look for these same resources here and may not find them among ranchettes and hobby horse farms. Were the CP to implement its own and the GMA goal of ensuring conservation of agricultural and forest resource lands of long-term commercial significance the fragmentation and subdivision that has already occurred could be modified by aggregation of smaller parcels. The intent of CP Land Use Section2.3C(a)-(b) to preserve parcels of agricultural and forest lands from subdivision at still viable parcel sizes is thwarted by the density designations in the Maps, and this inconsistency leaves the CP invalid for inconsistency.

In Twin Falls v. Snhomish, CPSGMHB 93-3-0003, a case involving forest resource land, the Board noted a difference that existed then between the definitions such that forest land was defined as "land primarily useful for growing trees" while the agricultural resource lands were defined with the current wording "devoted to" agricultural production. The Twin Falls case ruled that because of this difference in wording a farmer’s intent, to farm or not to farm, could control whether or not land was designated as resource land. Unless agricultural land was in actual use for agricultural production, the Board reasoned, it could not be "devoted to" agricultural production. After the Twin Falls ruling, the Legislature modified the definition of agricultural lands to match that of forest lands. The Washington State Supreme Court has now interpreted these definitions to mean that land is "devoted to" agricultural use if it is in an area where the land is actually used or capable of being used for agricultural production. In other words, the practice or intent of the land owner may not absolutely control whether or not resource lands are afforded the protection intended them by the Act. In City of Redmond v. Growth Management Hearings Board, 136 Wn 2d 38, 959 P .2d 1091 (1998) the court announced it had accepted the case in order to decide just this issue. The CP at issue had limited protection of resource lands to those which were in current use for resource production. "In light of the importance GMA accords to preserving resource lands" the court held that although the actual use of a particular parcel of land and the owner’s intended use of the land are factors that may be considered in determining if the parcel is in an area primarily devoted to commercial agricultural production, neither factor is conclusive. Were the court to rule otherwise, it reasoned, and recognize current use as a criterion, GMA Comprehensive Plans would be mere inventories of current use and local jurisdictions would be powerless to preserve natural resource lands. Declining to interpret GMA in a manner that would vitiate one of its thirteen stated goals, that of conserving resource lands of long term commercial significance, the court ruled that a CP may not afford resource lands protection only if they are currently used for resource production.

San Juan County’s CP contains this same flaw:

Lands in agricultural use which are characterized by the following criteria may be designated as Agricultural Resource Lands;

    1. Areas in parcels of ten acres or larger with the USDA-San Juan County Soil Survey Class II, III and IV soils and other soil classes with demonstrated agricultural productivity.
    2. Lands which meet the criteria in A. above which are under conservation easement for agricultural use or which are enrolled in the Open Space-Agriculture taxation program.

CP Land Use Section 2.3.C.a.


(1) Lands which are characterized by the following criteria may be designated Forest Resource Lands:

    1. are in Forest Land Grades 3, 4, or 5 on the Department of Natural Resources Private Forest Lands Grades map;
    2. parcels are twenty acres or larger;
    3. are in a tax deferred status of Designated Forest Land or Open Space-Timber, or are state trust lands under forest management; and
    4. are being managed for the long term production of forest products with few non-forest related uses present.

CP Land Use Section 2.3.C.b.

Section 2.3.C.a does not comply with GMA under City of Redmond and Diehl v. Mason, in which this Board held that "[t]he Remond case may not require designation of particular resource land but it does preclude non-designation based solely on the lack of current use as agricultural land. . . .We conclude that the Redmond decision requires the County to consider designation . . . .even if land is not in current use." Diehl at p4. CP Section 2.3.C.a makes actual current use a requirement in its first phrase "[l]ands in agricultural use which are characterized by the following criteria may be designated as Agricultural Resource Lands" and it makes participation in a current use tax program or subservience to an agricultural use conservation easement (also within the control of the land owner) criteria in subparagraph ii. Similarly, Section 2.3.C.b requires both participation in a current use tax deferral program a criterion (subparagraph iii) and requires actual current use in subparagraph iv which calls for the parcel to be currently managed for the long-term production of forest products. These provisions amount to a clearly erroneous interpretation of GMA. They impermissibly deny designation as resource lands to lands the Act intends to protect, fail to comply with the Act and substantially interfere with its goals.

It has been discussed that the Maps designate resource lands at densities too low to meet the plan’s own definitions as well as GMA requirements for conserving the lands. The Maps also designate as Rural Farm Forest land that otherwise qualifies as Agricultural and Forest Resource Lands. (Because the CP retains the 1979 zoning densities, those parcel sizes determined where borders were drawn between RFF and Resource Lands). As such, these lands are not accorded the protections of the Act requiring they be buffered from incompatible uses and they are subjected to higher densities of development and more subdivision. Even under the CP, which designates much resource land 5 acres, a density not in compliance with GMA, much resource land may be subdivided only to larger parcels. The Rural Farm Forest lands permit in general significantly smaller parcels. Thus lands which should have been designated as resource lands, which meet the soil criteria and parcel size and may have been used for production of agricultural and forest products for the past century now may be fragmented into differing ownership and subjected to a wider range of uses incompatible with resource production than if they were designated as resource lands. Section 3.5(1) of the UDC provides that 30% of a parcel designated Rural Farm Forest may be covered by impervious surface, exclusive of roads and driveways. The density designations which appear in the CP were selected and legislated in 1979. They do not reflect consideration of valuable and productive soil types or of uses incompatible with commercial production of agricultural and forest products of long-term significance nor do they weigh those considerations according to the goals and mandates of the Growth Management Act. Having announced before it began to plan under GMA that it would not change those densities, San Juan County cannot now claim to have made such an evaluation. Clearly then, the designation of resource lands is arbitrary and does not comply with GMA or its own goal to preserve valuable natural resources and support it traditional resource based industries.

Caselaw considering the adequacy of resource land protection under GMA has developed the phrase "the land speaks first". Abenroth, supra, and Sky Valley, supra. If the soil types and productivity of lands qualify them as resource lands, that "voice" of the land is to be heard before drawing the boundaries of UGAs to include them. The same rule should apply where resource lands are then arbitrarily allocated to another, non resource, rural designation .

    1. ISSUE 3

Do any of the above allegations substantially interfere with the goals of GMA?

The arguments presented above submit that each specific violation of GMA or inconsistency within the Comprehensive Plan that is alleged does substantially interfere with the goals of GMA and warrants a finding of noncompliance and invalidity. Amicus urges the Board to find the CP’s density designations, resource lands definitions, and guest house provisions invalid, and to remand the Comprehensive Plan to the County to eliminate all inconsistencies between it and the Vision Statement.

DATED this ______day of May, 1999.

Respectfully submitted,




Amicus Curiae


Table of Contents

Table of Authorities…………….……………………………………… iii

I. Introduction…………………………………………………… 1

    1. Issues……………………………………………………………… 6
    2. Issue I
    3. Does the CP Section 2.1.C, which retains the 1979 zoning

      densities, fail to comply with GMA Section .020(1), (2)

      and .110? ……………………………………………..……….. 6

      Discussion of Case law (beginning at line 1)…………………… 8

      Areas formerly designated "Suburban" remain suburban, changed

      in name only, and are not compliant with GMA…………………… 9

      The excessively high rural densities threaten Natural Resource

      Lands………………………………………………………………………… 10

      The Rural Farm Forest densities permit sprawl on most

      islands..…………………………………………………………………… 13

      [Impact on housing costs noted] (beginning at line 8)…… 14

      Guest house provision (beginning at line 19)………..…….……… 14

      [Guest house provision attracts growth to rural areas]

      (beginning at line 14)………………………………………...…………… 15

      [Guest house provision is not compliant with rural densities when

      applied to parcelsof less than 10 acres]……………………………… 16

      [Rural area has excess capacity] (beginning at line 14)………… 17

      [Rural densities are not compliant with GMA and CP’s Vision

      Statement] (beginning at line 1)……………………………… 18

    4. Issue 2
    5. Do the density provisions in designated resource lands comply

      With the GMA?.………………………………………………………… 18

      [GMA goal of conserving designated resource lands]

      (beginning at line 1) ……………………………………………………… 19

      [Density designations on the Maps of Resource Lands fail to conserve

      designated resource lands by permitting subdivision beyond the parcel

      sizes established in CP Sections 2.3.C.a & b] (beginning at line 9)…………………..…………………………………………………………… 20

      [CP Sections 2.3.C.a & b violate GMA and the City of Redwood rule]

      (beginning at line 13)……………………………………………………………………………… 21

      [The Maps arbitrarily contradict the resource land designations]

      (beginning at line 1)………….…………………………………………… 24

    6. Issue 3

Do any of the above allegations substantially interfere with the goals

of GMA?…………………………………………………………………….… 25

























Table of Authorities

Page numbers indicating the location of the reference

material in the brief follow the document name

Statutes and Regulations

RCW 36.70A 1, 2

RCW 43.21C.020(2) (c), (f) 2, 3

RCW 43.21C.030(2)(a) 2, 6

RCW 36.70A.070 5

RCW 36.70A.020(1),(2) and .110 6, 7, 16, 18

RCW 36.70A.030(14) 7

RCW 36.70A.030(15) 7

RCW 36.70A.030(17) 7

RCW 36.70A.070(5)(iii) 10

RCW 36.70A.070(5)(iv) 10

RCW 36.70A.070(5)(b) 13

RCW 36.70A.020(8) 19

RCW 36.70A.030(2) 19

RCW 36.70A.030(8) 19

WAC 365-190-050 19

RCW 36.70A.060 19

RCW 36.70A.170(11) 20


Gig Harbor, CPSGMHB 95-3-0016 8

Bremerton, CPSGMHB 95-3-0039 8, 14

Vashon-Maury, CPSGMHB 95-3-0008 8

Sky Valley, CPSGMHB 95-3-0068c 8, 12, 15, 16, 25

Friends of Skagit, WWGMHB 95-2-0065 8

Whatcom County Environmental Council, WWGMHB 94-2-0009 8,10, 15, 18

Smith v. Lewis, WWGMHB 98-2-0011c 9

Hudson, WWGMHB 96-2-0031 9

Achen v. Clark, WWGMHB 95-2-0067 9, 11, 14

Cotton, WWGMHB 98-2-0017 9

Dawes v. Mason, 22540-9-II (Slip Op. 3/5/99) 9, 14, 17

City of Redmond v. CPSGMHB, 136 Wn. 2d 38, 959 P. 2d 1091 (1998) 11, 22,23

Best Seattle Defense Fund, CPSGMHB 94-3-0016 15

Peninsula Neighborhood Association, CPSGMHB 95-3-0071 16

Abenroth v. Skagit, WWGMHB 97-2-0060c 19, 25

Diehl v. Mason, WWGMHB 95-2-0073 19, 23

Hudson & Huber v. Clallam, WWGMHB 96-2-0031 20

Twin Falls v. Snohomish, CPSGMHB 93-3-0003 21