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


Petitioners, ) REPLY BRIEF OF






Respondent, )


and )



KAREN SPECK, et al., )




Amicus Curiae Maile N. Johnson

Box 125

Orcas, Washington 98280



This brief is filed in response to the Brief of San Juan County filed in this case and dated May 27, 1998.

I. The Rural is Urban

Petitioners have demonstrated that the pattern of development permitted by the Comprehensive Plan (CP) in the rural area of this rural county is not rural in nature as the GMA defines rural; it is a recipe for sprawl. As others will also brief, the County misstates the "bright line" rule, which subjects a density of 1 du per less than 10 acres to close scrutiny. The authorities cited have held 2 du/ one acre and one du/5 acre densities to be violations per se and CTED encourages emphasizing 10 and 20 acres/ du. Even absent the doubling of density resulting from the allowance of guest houses on every parcel and in every designation across the county, the densities thwart the GMAís goals in the rural area. The rural element is to reflect the traditional visual rural landscape; that character is to be retained, under GMA. Smith v. Lewis County, (398-2-0011c, April 5, 1999). The Official Maps contain existing parcel lines and document the presence of numerous very large undivided parcels in the rural landscape. This is a unique and characteristic element in the countyís rural landscape which must not be sacrificed by hewing to densities set 20 years ago and years before the GMA was enacted. Others will discuss density and we are encouraged not to duplicate arguments to the Board. The case has been made that the County was clearly mistaken under the GMA in enacting this density pattern.

The County never argues otherwise. It states that it never considered changing the 1979 densities because, before the planning process was even conducted, "it believed they complied". (SJC Brief, p. 22 line 13). Rather it responds that the local circumstances are that the islands are small, that this justifies higher densities of development and that the County has discretion to modify what is considered "rural" under the Growth Management Act (GMA). (SJC Brief, p.23 line 3). The County does not however have the authority to redefine rural, as it attempts to do here. WEC v. Whatcom County (94-2-0009). Further, it argues that case law from before the 1997 amendments to the GMA is no longer valid with regard to density. (SJC Brief, p. 22 line 27). This is somewhat misleading, suggesting that the Actís definitions and requirements regarding rural were changed, whereas it was the standard of review that was changed by the adoption of the "clearly erroneous" standard for use in evaluating plans for compliance.

The fact of smallness calls urgently for a conclusion opposite to that drawn by the County. With less open space we have less open space to spare. Five acres here are no larger than they are on the mainland regardless of how near or far the horizon. The islands should not be condemned to sprawl because they are small. GMA does not sacrifice the little. GMA defines rural and mandates its protection. It would be a serious distortion of GMA to justify sprawl on the grounds that there is some park land in the county and the Countyís argument to this end ignores that parks are designated as Conservancy and are not part of the rural designation. (SJC Brief p24, fn. 7) .

The County has stated no fact regarding local circumstances that warrants a modification of the usual definition of rural and on the basis of which it would be justified in exercising its discretion to impose a more dense degree of development than is normally permissible in a rural environment. And if it had, it has not "shown itís work" of how it harmonized the GMA goals for the rural element. (RCW 36.70A.020). Others will brief this issue too, this brief need not duplicate arguments. But this is an explicit requirement of the Act and the County has failed this test.

II Resource Lands Will Be Subdivided Away

RCW 36.70A.020(8) requires maintenance and enhancement of the forest industry. San Juan County has taken action to further this goal. Itís timber industry is supported by its citizens, who selected as the preferred alternative for the county a plan including resource lands. The County has designated resource and includes in the CP Policy 2.2.F.3 to "[develop a sustainable forest management program for the forests of San Juan County." The County had the authority to enact these resource lands designations and they are not at issue here. Manke Lumber v. Diehl, 91 Wn. App. 793 (1998).

The densities permitted in resource lands by the retention in the CP of the 1979 densities fail to protect these long term resources. Under an imprisoning surface of sprawling development the landís resource potential will be vitiated and unusable. Future residents will look in vain for the open space in which to grow food, fiber, and timber; wildlife habitat will have vanished. The County asserts that it "has adopted additional mechanisms for protecting these resources" specifically the Right to Farm and Forestry provisions, a prohibition of incompatible uses, and standards for development. (SJC Brief, p. 27 line s3-6). Itís discussion reveals that the prohibition of incompatible uses is applicable to the lands themselves, not adjoining lands, (SJC Brief p.27 line 6) and that it considers transient rental of residences or guest houses on resource lands to be a compatible use (Such transient rentals are permitted by UDC 3.2). Such commercial use is a form of more intensive rural development and must be limited and contained. RCW 36.70A(5)(d)(ii). It is a singularly inappropriate and conflicting use in resource lands. The greatest threat to long-term productive use of resource lands is nearby conflicting uses. WEAN v. Island County (#95-2-0063).

The County also claims that clustering is required by the CP or DRs. (SJC Brief , p. 27 lines 8-13). In fact clustering is not required upon subdivision of resource lands, nor at any other time, under the CP and DRs. (UDC Table 3.2 Note 15; UDC section 7.h). The Right to Farm and Forestry provisions may - or may not - provide a measure of protection to those few resource lands which may Ė or may not - survive their lack of protection from fragmentation by subdivision and development. Where is the Countyís response to the call "the land speaks first"?

The County asserts that "as with densities in general the Board should take into consideration the small size of the islands and the low productivity of the resource lands themselves." The economic viability of resource lands cannot be considered in their designation; they are to be preserved. Achen . Clark County, #95-2-0067 (May 11, 1999).

III Population and Population Projection

The Brief of San Juan County did not fairly or accurately characterize the Brief of Intervenor Symons and did not reply to the serious issues and allegations he has raised. The County dismisses, or dares not reply to, his claim that the CP is internally inconsistent. Intervenor Symons has demonstrated that the CP permits an ultimate buildout population grossly inconsistent with the provisions of itís guiding document, the Vision Statement, and with the provisions of this Act which mandate the preservation of rural land and character. The County is silent or casts aspersions.

It implies those challenging the CP are seduced by the beauty of the islands or perhaps it is warning this Board not to be seduced. (SJC Brief, p. 1 line 9). It urges the Board "to consider the real world," implying that in this case a hard headed decision is to uphold the CP including its unwarranted erosion of GMAís mandate to reduce sprawl and preserve rural lands with an internally consistent plan. (SJC Brief , p.2 line 16 ). Being hard headed in this case means to me applying the law and invalidating the CP for inconsistency with the GMA and the Vision Statement.

The Vision Statement begins "We envision a community that is primarily ruralÖ" (Introduction, CP p 2). Intervenor Symons and Amicus have calculated in the opening briefs the rate of growth in San Juan County from the numbers in the record and found it to be over 5% over the past two decades. The State Office of Financial Management (OFM) provided population projections to the County on which the County has based a projection for the planning period of 2.5%. Neither of the numbers is relevant for the rural area.

Clark NRDC v. Clark County, 22164-1-II (Slip Op. March 12, 1999), holds that GMA does not require Counties to use OFMís population projections as a cap on non-urban growth. The decision points out that GMA requires use of the OFM population projections when planning urban growth but that it omits any reference to counties using OFM population projections when planning non-urban growth. This suggests that neither the Countyís projected rate of growth of 2.5% nor the actual 5% rate of growth is applicable to determine the density in the rural area.

GMA explicitly mandates protection of the rural character, regardless of the population projected or the rate of growth. It requires sizing the UGAs and providing there sufficient density to accommodate the projected urban growth. To the extent that there is capacity in a rural area, one which is and will remain truly rural, growth may occur there. But the projected population growth has nothing to do with the densities that are permissible in the rural area. The Act specifies what is acceptable in the rural area: maintenance of the traditional rural visual landscape, a variety of densities emphasizing 10 and 20 acre parcels, sufficient open space such that vegetation predominates over the built environment, development at a density that is compatible with the primary use of the land for the production of food and other agricultural products, undisturbed natural surface water flows and aquifer recharge, and development of the land is that is compatible with the use of the land by wildlife and for fish and wildlife habitat. (RCW 36.70A.030 (14) and .070(5)). A salmon, eagle, or douglas fir production forest will look in vain for a home among the urban and suburban sprawl permitted in the CP. The GMA is intended to conserve the rural areas. UGAs will expand, and activity centers in the rural area will infill, perhaps become UGAs. But rural land, except to the extent it is redesignated, is to remain rural. Thatís what preservation means. It does not mean ultimate conversion to urban sprawl.

IV In All Fairness

The CP is not at all what it appears to be. It claims to attain goals of conserving resource lands and rural character and it claims to be consistent with the will of its citizens, expressed in the Vision Statement, that the community remain rural and small. The development potential it imports from the past and attempts to secure for the future will devastate all it claims to preserve. It will transform the islands utterly beyond recognition. Celebrating as achievements goals it renders impossible to fulfill is akin to a fraud on the community.

DATED this 8th day of June, 1999.

Respectfully Submitted,

Maile N. Johnson