BRIEF OF SAN JUAN COUNTY
The San Juan Islands face unique problems in managing the complex issues of growth. (All issues).
The singular beauty of these islands may be the only issue upon which no one disagrees. But the islands are unique in other ways as well. And, if the goals of the GMA are going to be met, it is vital to take into consideration not only the islands seductive charm, but also the complex, and difficult realities which make long range planning such a challenge and finding solutions so difficult, even among people who desire the same end.
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Part of a larger archipelago that stretches north to Alaska, San Juan County is composed of 743 islands, reefs, and rocks. Of these, approximately 175 have names and 20 have year round residents. The Countys shorelines, which are more extensive than any other county in the country, total 375 miles of saltwater. Although the total land area is 175 square miles (making San Juan County only 1/10 the size of Skagit County) even this figure is deceptively large because each island contains only a fraction of the total land area. (## 220059, 220061, 220127).
Most of the Countys 12,500 people live on the four ferry served islands. Some 85% of the people live outside of the countys only town. This makes San Juan County the 37th out of 39 counties in terms of the percentage of the population that live outside of towns and cities. However, in spite of the largely rural population, the rural life style is not resource dependant. This is evident when one compares the value of farm crops ($300,000 in l992) with the value of tourism ($14-28 million in l990). (## 180605, 0220059, 220141).
In comparison, other counties in Washington which have much more viable farming communities have many fewer people living in the rural areas. Skagit County has a land area 10 times as big as San Juan County (1735 square miles vs. 175 square miles) and over half of the people live in cities and towns. (# 0220061). In Lincoln County, where 99.1% of the land is farmed, nearly 60% of the people live in incorporated towns. (Profiles of Clark, Jefferson, Lincoln, San Juan, Skagit, Thurston and Whatcom counties, as well as the state as a whole, are attached to this brief and make interesting reading. See ##220005-220078, selected pages). Perhaps the most telling fact relates to the value of real property in San Juan County as related to the rest of the state. The average value of real property per capita in the state is $61,057. Jefferson County is ranked number 2 in the state with an average value per capita of $82,840. San Juan County is number 1 with an average value per capita of $215,067. (##0220060, 0220038).
What these statistics show is that the differences between San Juan County and the rest of the state go beyond the beauty of our shorelines. The people here are among the most rural in the state. (37th out of 39; # 220059). Yet the value of the farm products sold is 38th out of 39 counties and the property is the most expensive in the state. (## 220060, 220141).
These facts, 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.
I. GUEST HOUSES AND THE DEFINITION OF "FAMILY"
Issue No. 3: Do the provisions of the Unified Development Code (UDC) 2.2A(12) [sic, (should read Comprehensive Plan, CP 2.2A(12))] allowing one guest house for each single family residence fail to comply with the above provisions of the GMA concerning urban growth and/or fail to comply with .070(5)(d) requiring rural growth in rural areas and/or fail to comply with .020(9) and (10)?
Issue No. 4: Do the provisions of UDC 4.18.9 and/or 4.19.3 allowing short-term rental of guest houses allow commercial activity in rural areas in a manner that fails to comply with the GMA?
Issue No. 5: Does the change in CP definition of "family" from a maximum of 5 persons to a maximum of 8 persons allow urban growth in rural areas in violation of the GMA?
Issue No. 6: Was the change in definition of "family" made without adequate State Environmental Policy Act review?
Issue No. 7: Did the change in definition of "family" fail to comply with the public participation provisions of the GMA?
Issue No. 15: Were the provisions allowing rental of one guest house per single family residence made without adequate State Environmental Policy Act review?
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B. The Countys policy allowing the long-term rental of guest houses was carefully drawn to satisfy the competing requirements of the GMA to provide for accessory dwelling units, affordable housing, and a rural atmosphere in rural neighborhoods. (Issues # 3 and 5).
Not only are the islands themselves unique, its residents also see their homes and identity as being different from "the mainland." The people here are, in general, older and more educated than average. However, focusing on "averages" overlooks the disparate groups of people living on the islands. Although overall income is higher than the state average, the workers are the most poorly paid in all the states 39 counties ($14,972 vs. $26,328 statewide). In contrast to the poorly paid workers, there are relatively more households with incomes exceeding $100,000 and personal income from dividends, interest and rent. Property values are higher on a per capita basis than any other county in the state. (#220060). Tourism is a mainstay of the economy and islanders as well as local businessmen are host to many visitors, relatives, and friends. San Juan County: A Demographic and Economic Overview, J. Fox and C. Hodgkin, The Madrona Group, l992. (#180604-06).
Many property owners have built facilities for their guests and visitors. Sometimes this is an extra bedroom, and other times it is an attached "mother-in-law apartment," an apartment over a garage or "carriage house," or a freestanding, classic "guest house." Sometimes crude and sometimes fancy, these facilities provide a shared living arrangement for family members, relatives, partners, guests, visitors, friends, housekeepers, gardeners, health care providers and renters. The very fact that the Comp Plan and UDC use the term "guest house" instead of "accessory dwelling unit" reflects the use of a local term to describe what actually exists in the islands.
When the County undertook the "bottoms up" process of adopting a plan and regulations under the GMA it did so against the real world background just described. The County used the existing patterns of development as assets in complying with state and federal mandates concerning growth and housing. The CP and DRs regarding guest houses implement the policies and priorities fostering housing opportunities set by State and Federal law, and do so by utilizing existing land use patterns in the County in a manner consistent with the GMA.
RCW 36.70A.020(4) requires San Juan County to "[e]ncourage the availability of affordable housing to all economic segments of the population. . . .." In addition, the Washington Housing Policy Act passed in l993 established a state goal of reducing housing costs and improving housing quality for people of all income groups. The legislature stated that the attainment of a decent home in a healthy, safe environment is a "state priority." RCW 43.185B.007 and .009.
One of the methods the state legislature mandated to accomplish this policy was to encourage the construction and use of guest houses. When read as a whole, the Housing Policy Act "requires local governments to adopt development regulations, zoning regulations, or official controls that provide for accessory dwelling units in areas zoned for single-family residential use[.]" Coalition of Responsible Disabled v. City of Spokane, EWGMHB # 95-1-0001, Dispositive Motion Order and Final Order, at 1590, (June, l995)(emphasis added). The Eastern Board explains that, while a local government "must adopt" ADU provisions, "it is given broad discretion to accommodate its needs in designing these provisions." (P. 1592).
As part of the Housing Policy Act the legislature directed counties to incorporate into their Plans and DRs a model ordinance prepared by the Department of Community, Trade and Economic Development (CTED), the purpose of which was to encourage the "development and placement of accessory apartments in areas zoned for single-family residential use." RCW 43.63A.215(1)(b). RCW 36.70A.400. (Attached).
The state legislature also gave to San Juan County the discretion to mold the CTED Model Ordinance to fit the Countys local circumstances with "flexibility" to determine appropriate local "regulations, conditions, procedures, and limitations." RCW 43.63A.215.
The CTED Model Ordinance is found in the record as Appendix A to an exhaustive analysis of the policy issues surrounding accessory dwelling units prepared by the Municipal Research Services Center. (## 171010-171100, excerpts attached). The CTED Model Ordinance allows both attached and detached accessory dwelling units in all areas zoned for single-families. There is a limitation of one ADU per residential lot. The ordinance provides for ADUs in resource lands such as agricultural zones. See Model Ordinance §§ A.4, and A.5. (# 171077). The CTED model ordinance is a seemingly perfect fit with existing island lifestyles. Guest houses are popular, and the County has a mandate to encourage their construction and use.
It takes only a brief review of the Index to the record in this case, (Addendum II), to confirm that the issue of the construction and use of guest houses was one which galvanized the community and inspired them to write and speak to the Board of County Commissioners. In addition to the 61 page report from Municipal Research and Services Center, the Prosecuting Attorney submitted legal memorandums on the topic (## 170849-56), the commissioners submitted proposals (## 170766-70), public comment was received (Addendum II), and after due consideration the final approach was adopted. The County enacted guest house provisions which are summarized in Addendum I. (Attached).
The CP allows one guest house for each single family dwelling unit:
Allow one guest house (accessory dwelling unit) for each principal single-family residential unit, the primary use of which will be for occupancy by family members, guests, or persons providing health care or property maintenance for the owner. Develop standards for guest houses to ensure that potential impacts on density, water, sewage disposal facilities and roads are mitigated. As an affordable housing opportunity, the long-term rental of guest houses may be allowed.
All guest houses must comply with the performance standards set out in the UDC § 4.18:
4.18 Guest Houses (Accessory Dwelling Units).
The following standards apply to all guest houses:
1. One attached or detached guest house is permitted on any lot having a single-family residence as the principal use of the lot.
2. A guest house shall not exceed 1,000 square feet in living area.
3. A guest house shall be served by the same driveway as the principal residence unless site conditions warrant a separate access.
4. A guest house shall be served by the same water supply and sewage disposal system as the principal residence unless otherwise approved by the County Sanitarian.
5. At least one additional off-street parking space shall be provided for the guest house in addition to the parking required for the principal residence.
6. A guest house must be owned by the owner of the single-family residence.
7. Guest houses existing as of the date of adoption of this Code will be excepted from the standards in Section 4.18.2, above.
8. No more than one structure shall be designated as a guest house on any residential lot unless the applicable density for that lot allows for additional residences.
9. Short-term rentals of a guest house for periods less than 30 days shall also be subject to the requirements in Section 4.19.3.
Central to an understanding of the Countys policy regarding long-term rental of guest houses is how the county has defined key terms used in the UDC. The pertinent definitions of the UDC are stated below:
Density --- The quantity per unit area, such as the number of dwelling units per acre or acres per dwelling unit.
Dwelling Unit One or more rooms or structures designed for occupancy by an individual or family for living and sleeping purposes, containing kitchen facilities and rooms with internal accessibility, for use solely by the dwellings occupants. A main residence and guest house constitute a single dwelling unit.
Family Individuals related by genetics, adoption or marriage or a group of not more than eight unrelated individuals who share a single dwelling unit.
Guest House (Accessory Dwelling Unit) A detached or attached accessory structure secondary to the principal single-family residential unit designed and most commonly used for irregular residential occupancy by family members, guests, and persons providing health care or property maintenance for the owner.
The county uses the definition of "family" to limit the number of people who can live on each parcel. Thus, a parcel is limited to one dwelling unit (which may include a main residence and a guest house) and each dwelling unit is limited to one "family" as defined by the UDC. This approach has been traditionally looked upon with favor by the courts as a method of zoning for residential use. Village of Belle Terre v. Boraas, 416 US 1, 39 L Ed 2d 797, 94 S Ct 1536 (l985). Use of other criteria to define single-family neighborhoods have frequently run afoul of the equal protection clause of the United States Constitution. City of Cleburne v. Cleburne Living Center, 473 US 432, 87 L Ed 2d 313, 105 S Ct 3249 (l985). Even the definition of "family" must be crafted with care in order not to violate the provisions of the Federal Fair Housing Act of l988. Childrens Alliance v. City of Bellevue, 950 F. Supp. 1491, 1499 (l997).
The countys approach does not violate the GMA in any way. The GMA does not specify the lowest denominator for measuring density. Density in the GMA "refers to the number of dwelling units or people within a geographic unit." Childrens Alliance v. Bellevue, CPSGMHB # 95-3-0011, FDO, 1003 at l006 (July 1995). The Act leaves the discretion for determining the number of occupants in the dwelling unit to the local legislative body. So long as the definition used by the County does not violate the GMA, or state or federal law, it is appropriate.
Under the DRs, the "density" of a parcel is one dwelling unit whether there is a main house alone or a main house and a guest house. Nearly every petitioner or intervenor suggests that a guest house will "double the density." But this ignores the effect of the limitations imposed by the countys definition of "family." The Countys limitations on numbers of people living in a single dwelling unit are the same whether or not the guest house is rented or everyone lives in the main residence. Petitioners arguments that County policies result in "doubling" of density throughout the County ignore this reality. Under the countys approach, the theoretical impacts caused by parking, people, traffic etc. is the same for a residence with a guest house as a residence without a guest house. In both cases, the number of related and unrelated people who can reside on the parcel is capped by the definition of family.
The Countys approach is discussed in Municipal Resource and Services Center Report No. 33, Accessory Dwelling Units - Issues and Options. The report, at p. 36, (#171050) states that when a limitation is placed on the "aggregate number of persons that may occupy both the ADU and the primary unit to the number allowed in the house without the rental unit . . . the density, parking, and traffic impacts resulting from ADU conversions should be no greater than those from a single-family structure without an ADU." By specifying a limit of one "single family" for each dwelling unit, the County has taken steps to guard against sprawl, as required by the GMA.
As an example, the MRSC report cites a Seattle Municipal Code which limits the number of unrelated people who live in a single family residence with an ADU to no more than eight total. This is exactly what San Juan County has done in its definition of "family." (# 171050).
Petitioners claim that allowing eight unrelated people to live together in a rural area does not comply with the GMA. Petitioners ignore the fact that, in adopting its provisions for the rental of guesthouses, the County was required to comply with all of the requirements of the GMA, (including RCW 36.70A.400), the Washington State Housing Policy Act, and the Federal Fair Housing Act. The Federal Fair Housing Act prohibits discrimination in the sale or rental of housing. The Act offers protection against discrimination based on physical or mental handicaps or familial status. In Edmonds v. Oxford House, Inc 131 L Ed 2d 801, 810 (l995), the U.S. Supreme Court, while recognizing that "family composition rules are an essential component of single-family residential use restrictions," held that definitions of "family" are subject to scrutiny under the Fair Housing Act.
In an increasing number of cases the courts have expressed concerns that limitations on numbers of people constituting "family" can be used as a tool to discriminate against group homes for children and the physically and mentally disabled.
In a recent case which originated before the Central Growth Management Hearings Board Judge Zilly found Bellevues definition of "family," which limited to six the number of unrelated people who can live together as a family, invalid.
[T]he Court finds invalid the occupancy limits triggered by the number of non-related individuals residing together. The limits are not a neutral, generally applicable limitation meant to protect the safety of the residents; rather they are part of the definition of "Family." Such use of occupancy limits is not within the exemption found [in the Federal Fair Housing Act]. See City of Edmonds v. Oxford House. . .
Childrens Alliance v. City of Bellevue, 950 F.Supp. 1491, 1499 (l997).
Under the Childrens Alliance decision, it is arguable whether the County has any freedom at all to limit the numbers of people who can live together as "family."
Local governments are expected to do exactly what the County did in balancing the intricacies of state and federal law. Had the County ignored the provisions of state law regarding accessory dwelling units, or federal law with respect to the definition of family it would have been ignoring the directives of the GMA: "The need to consider and recognize other laws should profoundly influence, limit and shape planning and decision making under the act." WAC 365-195-700.
The County is also entitled to consider local circumstances, and there are additional good policy reasons to support the use of guest houses as rentals in San Juan County. (RCW 36.70A.3201 (Attached)). The ability to rent out a guest house enables people to supplement their incomes without interfering with the use of the land for other rural purposes. This is an important source of income for islanders. In l991, 20.4% of the people in the county were over the age of 65 (compared to 11.7% statewide). (# 180604). A much higher percentage of the personal income of county residents comes from dividends, interest and rent. Although the county has a disproportionate number of people with high incomes (over $100,000 per year), the average worker in the County has the lowest net earnings per worker of Washington counties ($14,972). San Juan County: A Demographic and Economic Overview, J. Fox and C. Hodgkin. The Madrona Group. 1992. (## 180604-06).
Petitioners claim both that guest houses are not a source of affordable housing (because short-term rentals are more lucrative), and that guest house rentals will double densities throughout the islands. Both of these statements cannot be true. Petitioners miss the mark. The County makes no claims that all of the guest houses, or even a majority of guest houses, in the County will be used as rentals. What the federal and state policies reflect, and what the county has done, is create an opportunity for affordable housing based on the existence and potential availability of guest houses, now and in the future.
Demographic studies in Washington show
. . . a growing elderly population has led to an increase in the proportion of households having only one or two persons . . . households with one or more persons 65 and older make up more than 21 percent of the households in Washington. . . .
. . .The number of single-parent households has also increased. . . Mothers with one or more children head the majority of single-parent households. . . For many single parent households the only options available for housing may be apartments . . . that offer few amenities for families with children.
. . .Many of these families do not need or cannot afford homes as large as the ones they grew up in.
Accessory Dwelling Units: Issues and Options, Municipal Research and Services Center of Washington, Report No. 33, October l995. (## 171019, 171022).
The countys policies regarding the long-term rental of guest houses takes advantage of existing patterns of living on the island by tapping into existing housing stock which can be used both to supplement the income of the homeowners in the form of rent while providing a place to live for the Countys lowly paid wage earners.
Petitioners cite Peninsula v. Pierce County, CPSGMHB Case #95-3-0071, FDO, 1727 (March l996), for the proposition that detached guest houses should not be allowed on lots smaller than 10 acres in rural areas. But, the Central Boards decision in Peninsula fails to discuss the Model CTED ordinance which allows both attached and detached ADUs, and the deference to local government provided by RCW 43.63A.215 (3) (#171077). More importantly, application of the Central Boards reasoning to San Juan County disregards the fact that the number of people who can reside on a parcel does not change because a guest house is detached or attached.
The Countys decision to follow CTEDs model ordinance by allowing long-term rental of guest houses in all single-family zones (except Natural areas of the shoreline) is in direct compliance with the directives of RCW 36.70A.400 and RCW 43.63A.215. In establishing this policy the County has taken advantage of the lifestyles of the population to create a practical housing policy which takes advantage of existing local resources.
The County has developed a policy which is consistent with the law and will provide for its citizens, both in the form of affordable housing and supplementary income. As the legislative body of the county, the BOCC is given broad discretion to determine how to balance the public interest with the requirements of state and federal law. State v. Brayman 110 Wn. 2d 183, 193, (l988). The County has appropriately balanced the policies of all three acts and the resulting CP is "presumed valid" unless shown to be "clearly erroneous." RCW 36.70A.320 and .3201.
C. There was no lack of participation in the development of the definition of "family." The public, including the petitioner, testified regarding the change in the definition of "family." (Issue #7).
On May 6, l998 the County issued the Final Draft of the CP and UDC for Public Comment. (# 171106-525, pertinent pages attached). The definition of "family" in the May draft was:
Family. Persons related by genetics, adoption, or marriage or a group of unrelated individuals who share a single-family residential unit, as defined by the Uniform Building Code.
(UDC, May 8, l998 draft, #171298)
The Planning Department issued a staff report on May 11, l998 which discussed various aspects of the proposed Comprehensive Plan and UDC. (## 171547-171565). The report was public information and was issued preparatory to the final public hearing on the Plan and UDC set for June 2, l998. (##171662-65). The Planning Department had concerns that the definition of "family" as written was overly broad and should be redrafted. (##171548-51).
Under the Planning Departments analysis the definition would allow any number of unrelated people to live together and still qualify as a "family." The written staff report recommended that the definition be changed to specify the numbers of people allowed to occupy a residential structure. Several options were given allowing five, eight, or ten unrelated individuals to share a dwelling unit. (## 171550-51).
The public hearing was held on June 2, l998. Lynn Bahrych testified at the hearing regarding this issue. (## 171609, 170046 and attached transcript ).
During the June l998 deliberations the BOCC adopted the following definition of "family" which remained unchanged in the ordinance which was finally adopted on December 20, l998.
Family. Individuals related by genetics, adoption, or marriage or a group of not more than eight unrelated individuals who share a single dwelling unit.
(UDC Dec 20, l998, #180196).
The following facts are not in dispute:
(1) The June 2, l998 public hearing was an advertised public hearing. (##171609, 171662-65);
(2) The published May 8, l998 draft of the UDC contained a definition of the word "family" which staff believed did not limit the number of individuals who could occupy a single dwelling unit. (#171298);
(3) The May 11, l998 staff report available to the public discussed proposed changes to the definition of "family." (#171550-51);
(4) A public hearing was held on June 2nd and petitioner Lynn Bahrych testified as to her opinions regarding the definition of "family." (#170046 and attached transcript);
(5) The BOCC held their deliberations after the close of the public hearing and defined the word "family" to include no more than eight unrelated individuals. (UDC § 2.3, "family", #180196).
There is no evidence to support an argument that the public was not given adequate opportunity to comment on the definition of "family" in the UDC. Petitioner is asking this board to substitute the petitioners definition of family for that of the Board. The final decision on issues resides with the Board of County Commissioners. RCW 36.70.650. (Attached). Issue No. 7 in this appeal should be denied.
D. The short-term rental of guest houses is an appropriate low-level commercial activity in rural neighborhoods. (Issue #4).
The economy of San Juan County is fueled by retirement and tourism, both of which bring outside dollars into the island economy. "This pattern of business varies substantially from the norm of state business activity and reflects the large retirement age population, the substantial seasonal population, and the large and growing number of tourists who visit the county each year." (#220132). For example, in l989 it is estimated that 250,000 tourists arrived by ferry and another 50,000 by private boat bringing between $14 and $28 million in taxable retail sales. (# 180605).
It is the rare island family that is not the regular recipient of many "guests," relatives and long-lost friends who come to visit and enjoy the islands. As a result it is not uncommon to find people who have built guest houses for use by visiting family and friends. This reality is reflected in the Countys CP and UDC. The County has defined guest house to mean:
A detached or attached accessory structure secondary to the principal single-family residential unit designed and most commonly used for irregular residential occupancy by family members, guests and persons providing health care or property maintenance for the owner.
UDC § 2.3. (Emphasis added).
The recently adopted Comprehensive Plan and UDC divides transient accommodations into three categories: (1) bed and breakfast inns, (2) bed and breakfast residences, and (3) transient residences or guest houses. UDC § 4.19. Depending on the land use designation of the neighborhood these three types of transient accommodations are allowed either by provisional or conditional use permit or, in some land use districts, prohibited outright. (See Addendum I and
UDC Tables 3.1 and 3.2). All transient guest house rentals must meet the provisions of UDC §4.19.3:
3. Transient Residence or Transient Guest House. The following standards apply to all short-term (less than 30 days) transient rentals of single-family residential units and guest houses or portions thereof:
a. No more than three guests per bedroom shall be accommodated at any one time.
b. The transient residence or guest house shall be operated in a way that will prevent unreasonable disturbances to area residents.
c. At least one additional off-street parking space shall be provided for the transient use in addition to the parking required for the residence or guest house.
d. If any food service is to be provided the requirements for a bed and breakfast residence must be met.
e. No outdoor advertising signs are allowed.
f. The owner or lessee may rent the principal residence or the guest house on a short-term basis, but not both.
g. Where there are both a principal residence and a guest house, the owner or lessee must reside on the premises.
h. In all Activity Center land-use districts, Rural Residential, and Conservancy land-use districts, the transient rental of a residence or guest house may be allowed by provisional ("Prov") permit only if the owner or lessee demonstrates that the residence of guest house in question was used for transient rental on or before June 1, 1997. When internal land-use district boundaries are adopted for an Activity Center this provision will apply to VR and HR districts but not to the Activity Center in general.
i. Transient accommodations must meet all local and state regulations, including those pertaining to business licenses and taxes.
Interestingly, the appellants make no objections to either bed and breakfast inns, bed and breakfast residences or transient rentals of main residences. Neither do they object to the allowance of guest houses which are not rented out. Rather, the appeal in issue four is limited to the compatibility of transient guest house rentals with rural areas.
The GMA recognizes that rural development "can consist of a variety of uses . . . at levels that are consistent with the preservation of rural character and the requirements of the rural element." RCW 36.70A.030(15). Transient rentals, along with bed and breakfast inns and residences are among the types of quasi-commercial development allowed in rural areas under the GMA.
The rural element should "accommodate . . . uses that are not characterized by urban growth and that are consistent with rural character." RCW 36.70A.070(5)(b). " Urban growth refers to growth that makes intensive use of the land . . . to such a degree as to be incompatible with the primary use of land for the production of food, other agricultural products. . . [and] rural development . . . A pattern of more intensive rural development, as provided in RCW 36.70A.(5)(d), is not urban growth." RCW 36.70A.030(17).
Although the rural atmosphere is an extremely important part of what makes the San Juan Islands so special to visitors and residents alike, this rural atmosphere cannot be sustained by crops alone. In l992 San Juan County ranked 38th out of 39 in the value of farm products sold. The County ranked 29th out of 39 counties for timber harvests. (#0220141). The Forest Lands Technical Advisory Committe concluded that the County "does not have forest lands of long-term commercial significance. . .[as defined by the GMA]". (#10930). These statistics do not mean that our farmlands and forests are not important to islanders. Clearly they are. It does mean, however, that farming and forestry are not a sustainable method, by themselves, of earning a living.
The use of guest houses as transient rentals in rural areas provides a source of income for landowners which is reliable and sustainable. The tourism dollar is a mainstay of island economy which is not likely to go away anytime soon. "[In l989] tourists were responsible for between $14 and $28 million in taxable retail sales," as opposed to $300,000 in farm crops sold in l992. (##180605, 0220141).
Tourism is both the islands blessing and their curse. San Juan County has historically chosen to favor providing tourists with the rural experience they have come to enjoy. Through the use of bed and breakfasts and vacation rentals, tourists can appreciate the beauty of the islands first hand while contributing economically to the islands rural character.
"Rural character" refers to the patterns of land use and development . . .
(a) In which open space, the natural landscape, and vegetation predominate over the built environment;
(b) That foster traditional lifestyles, rural-based economics, and opportunities to both live and work in rural areas;
(c) That provide visual landscapes that are traditionally found in rural areas and communities;
(d) That are compatible with the use of the land by wildlife and for fish and wildlife habitat;
(e) That reduce the inappropriate conversion of undeveloped land into sprawling, low-density development;
(f) That generally do not require the extension of urban governmental services; and
(g) That are consistent with the protection of natural surface water flows and ground water and surface water recharge and discharge areas.
Vacation rentals of guest houses are in full keeping with the island rural character. Because guest houses exist and will continue to exist for the owners personal benefit (there is no evidence that guest houses are being built solely for the purpose of vacation or long-term rentals) they do not change the visual landscape. They foster rural based economies by providing a source of income for people in rural areas thereby helping the County meet GMA Goal 5. RCW 36.70A.020(5). (Economic development). They do not constitute "urban sprawl" because they rely solely on structures which are a characteristic part of the island family residence, i.e. a main house and guest house.
Because most rural islanders rely on wells and septic drain fields they do not require extension of urban governmental services. The tourists whom they serve are using the roads to do their sightseeing in any case, whether or not they stay in the country or in town or at a resort. Water and septic requirements are established and satisfied upon the construction of the guest house.
(SJCC 13.04, 13.06).
As pointed out in the brief of the Friends of the San Juans, the challenges of accommodating tourism in a rural environment cannot be overstated. In l990 when the Islands population was 10,035 the County hosted an estimated 300,000 tourists. (#180605 and CP Appendix 1, p. 6).
Thus far the Islands have been able to accommodate these tourists without building large Ramada Inns or Sheraton Hotels on the one island with an urban growth area. They have done so, in part, by using existing homes as bed & breakfasts, and through vacation rentals of homes and guest houses. This is entirely in keeping with the GMAs goal of encouraging economic development (RCW 36.70A.020(5)) and allowing communities to tailor their rural environments to "local circumstances." RCW 36.70A.070(5)(a). (#171849-54).
On islands where the mainstay of economic activity is tourism, it is a reasonable policy to allow tourists to stay in guest houses owned by people who live in rural areas. Visitors to the islands are looking for a short-term experience different from what they have at home. Guest house rentals provide an alternative to the standard motel and provide travelers with the opportunity to experience the island lifestyle. Vacation rentals are universal and the County is not aware of any place where they have been banned. A prohibition of these rentals would further reduce the number of pockets into which tourism dollars end up to the detriment of islanders trying to earn extra income and visitors looking for a glimpse into rural island life.
In addition, there is no rational basis for singling out guest houses as an allegedly inappropriate commercial activity in rural areas. Petitioners have made no objection to bed and breakfast inns which allow up to 15 guests at a time, or bed and breakfast residences both of which are allowed by permit in many rural neighborhoods.
The reality is that short-term rental of guest houses is by permit only and subject to specific limitations imposed by the County. For example, such use is not permitted in Natural areas. Transient rentals are not permitted in Conservancy areas unless such rentals were in place before June 1, l997. In the shoreline areas where transient rentals are allowed it is by conditional use permit only. In uplands areas either a provisional use permit or conditional use permit is required. (See Addendum I for a summary of guest house regulations).
Transient rentals of guest houses in the shoreline, when controlled through the shoreline conditional use permit process, comply with the goals of the Shoreline Management Act by providing "increase[d] recreational opportunities for the public in the shoreline." RCW 90.58.020(6). The SMA places a high priority on "the publics opportunity to enjoy the physical and aesthetic qualities of natural shorelines of the state [which] shall be preserved to the greatest extent
feasible consistent with the overall best interest of the state and the people generally." RCW 90.58.020.
In contrast to the representations made in Bahrychs brief, the Countys SMP favors commercial development "which will provide an opportunity for substantial numbers of people to enjoy the shorelines." (CP 3.5.D.1, #180073-74). San Juan County has increased the abilities of the public to enjoy access to privately owned shorelines by allowing transient rental of guest houses by shoreline substantial development permit in areas of the shoreline not designated Natural or Conservancy. (Addendum I).
Vacation rentals are a benefit to county residents and visitors alike. It is the type of use which fits perfectly with the island way of life. It allows tourists to economically support rural lands which are no longer economically productive, thereby preventing subdivision. The Countys policies combine an existing lifestyle (guest houses) and economic realities (tourism dollars and economically non-productive farmland) to advance the goals of the Growth Management Act. Petitioners have failed to show that the Countys allowance of vacation rentals is clearly erroneous and their petition on this issue should be denied.
E. The Countys Final Environmental Impact Statement and Supplemental Environmental Impact Statement adequately reviewed the Countys policies regarding guest house rentals and definition of "family." (Issues 6 and 15).
The County prepared three Environmental Impact Statements and two Appendices covering the CP and UDC. (#171854) (CP Appendix 9 contains the Final EIS on the CP and the Supplemental EIS covering the CP and the UDC; selected portions are attached at beginning at ## 80001, 150019, and 150247). Petitioners challenge the adequacy of SEPA review with respect to the definition of "family" and policies regarding the rental of guest houses.
The purpose of SEPA is the disclosure of potential adverse environmental effects to aid decision-makers. An analysis of adequacy relies on "the rule of reason." Ullock v. Bremerton 17 Wn. App. 573, 581, (l977).
Courts will review an EIS to determine whether the projects environmental effects are reasonably disclosed, discussed, and substantiated. The EIS is not a compendium of every conceivable effect . . . but is simply an aid to the decision making process.
Toandos Peninsula Assn v. Jefferson County, 32 Wn. App. 473, 483, (l982).
The process of review for non-project proposals such as plans and development regulations is different than for a specific project. A determination of whether the Countys EISs were adequate requires a review of the standards for non-project proposals. WAC 197-11-442 (attached).
The lead agency shall have more flexibility in preparing EISs on non-project proposals, because there is normally less detailed information available on their environmental impacts. . .
. . .Alternatives should be emphasized . . . Alternatives including the proposed action should be analyzed at a roughly comparable level of detail, sufficient to evaluate their comparative merits (this does not require devoting the same number of pages in an EIS to each alternative).
. . .
The EISs discussion of alternatives for a comprehensive plan . . . shall be limited to a general discussion of the impacts of alternate proposals for policies contained in such plans. . . The lead agency is not required under SEPA to examine all conceivable policies. . .but should cover a range of such topics. . . The EIS content may be limited to a discussion of alternatives which have been formally proposed or which are, while not formally proposed, reasonably related to the proposed action.
WAC 197-11-442. (Emphasis added).
The Final Environmental Impact Statement, published on October 2, l996, analyzed the impacts of the rental of guest houses. (CP Appendix 9 at 2-3, 2-7 and 2-8, also # 80018, 8022-23). This analysis was based on recommendations by the Planning Commission that the County adopt policies allowing the rental of guest houses. The Planning Commissionss recommendations to the BOCC consisted of the following findings and recommendations regarding the Housing Element of the Plan:
5. The Vision Statement of the October l995 draft includes a commitment that: "The supply of affordable housing is adequate to meet the needs of our diverse population." Allowing rental of guest houses/accessory dwelling units will increase the supply of affordable housing units.
6. Significant density increases will not result from allowing rental of guest houses/accessory dwelling units.
7. There was substantial public testimony received at the public hearings that rental of guest houses/accessory dwelling units should be allowed.
8. Rental of guest houses/accessory dwelling units is a widespread practice in San Juan County, although it is not a regulated or permitted use under current county law. Modifying the Housing element to allow rental of guest houses/accessory dwelling units is important in order to legalize the situation so that many families who are living in such rental units will be doing so with the protections afforded by law.
9. Performance standards and regulations regarding rental of guest houses/accessory dwelling units can be developed consistent with the intent of this element.
San Juan County Planning Commission, Findings and Recommendations, 3/29/96, (##61275-277).
The analysis in the Final EIS was based on these recommendations which were in support of a guest house rental policy virtually identical to that in the present CP. Guest house rentals were analyzed under both the Population and Housing elements of the EIS. (See CP Appendix 9 and
# 80018, 80023-24). The Final EIS raised the same concerns about guest house rentals that petitioners raise today, namely, that guest house rentals could result in a doubling of density.
(# 80018, 8023-24).
At the time the Draft Supplemental EIS was published (a year later) on October 1, l997, both alternatives that were analyzed limited the rental of guest houses. In one case, to a total of no more than 10% of all single family residences and, in the second case, to those residents who had rented guest houses prior to January 1, l996. In both cases the DSEIS again discussed the impacts of density with respect to the rental of guest houses. (##150019, 150033-034). The Final Supplemental EIS, published on November 12, l997, also discussed the impacts of guest house rentals on density. (##150289-290, and CP Appendix 9, FSEIS pp. 2-28 and 2-29).
When each of these EISs were written, the definition of family was limited to "no more than 5 unrelated people" and a guest house was not considered part of the main structure or dwelling unit. (##94634, 94829-30, 94832). Therefore, when rented, a guest house and main residence could each contain a separate "family."
The final staff report to the County Commissioners was provided on May 11, l998 (##171547-558). This staff report discussed guest houses and the definition of "family" at length based on the provisions of the final draft of the Comprehensive Plan and UDC published on May 6, l998. (## 171106-171525, pertinent pages provided). These drafts allowed the rental of guest houses and, in the opinion of the planning department, used a definition of "family" which placed no limitations on the numbers of people who could live in each structure. (## 171547-552; See also Section I.C. of this brief).
As in the EISs, the Planning Department analyzed the impacts of the long-term rental of guesthouses. "Under the current BOCC proposal, both living spaces (main residence and guest house) could be occupied on a long-term basis, and there would be no limitation on the number of people who could occupy either space." (Emphasis added) (# 171552).
The BOCC responded to this analysis by carefully constructing definitions of "dwelling unit" and "family" such that, although each dwelling unit could be composed of a main residence and a guest house, no more than one "family" could live in both structures. The definition of "family" (now limited to no more than 8 unrelated individuals) combined with the limitation that a second "family" could not occupy the guesthouse reduced the impacts of guesthouse rentals from the rental policy which had been analyzed in the Final Environmental Impact Statement. (# 80018 and CP Appendix 9, FEIS p. 2-3). Beneficial changes do not require analysis under SEPA. Leavitt v. Jefferson County 74 Wn. App. 668, 680, (l994).
The goals of SEPA have been fulfilled. Impacts of guest house rentals were analyzed in the Final EIS. They were analyzed again by the Planning Department (the lead agency) in the staff report of May 11, l998.
The Commissioners made a specific legislative finding that the agreed changes were within the range of alternatives previously considered and that "no further environmental review is
required. . .." San Juan County Ordinance 2-1998. (## 171848, 171854). The governmental agencys determination that an EIS is adequate is entitled to "substantial weight." RCW 43.21C.090. "The substantial weight requirement of RCW 43.21C.090 applies to the [BOCC]. Reading v. Thurston Cty, WWGMHB # 94-2-0019, Final Order at 744, (March l995).
Petitioners are free to argue that the BOCC should have prohibited the rental of guest houses based on the assessment in the Final EIS and the analysis in the May 11, l998 staff report by the Planning Department. However;
SEPA is essentially a procedural statute to ensure that environmental impacts and alternatives are properly considered by the decision makers. It was not designed to usurp local decision making or to dictate a particular substantive result.
SORE v. Snohomish County, 99 Wn. 2d 363, 371, (l983).
The Planning Department is not the legislative authority of San Juan County. "The report and recommendations by the planning agency . . . shall be advisory only and the final determination shall rest with the board." RCW 36.70.650 (attached).
The issue of guest house rentals received as much testimony as any other single issue. (## 171552, and Addendum II). There is absolutely nothing to be gained by further environmental review.
The County believes that its guest house policies and definitions of "family" are environmentally sound and are in compliance with the GMA. Remanding these issues back for additional SEPA review is unlikely to change county policies and will require an additional appeal before this Board to answer the same substantive issues which are before the Board today. (See this brief § I.B.) San Juan County and its citizens are best served if the Board rules on these substantive issues regarding "family" and guest house rentals so that the County can put its energy into proceeding ahead with implementation of its long-range planning goals under the GMA.
Issue No. 1: Does CP Section 2.1C, which retains the l979 zoning densities, fail to comply with the GMA, specifically Sections .020(1), .020(2), .020(12), and/or .110?
Issue No. 2: Does the use of initial densities of 2 dwelling units (du) per acre and/or 1 du per 2 acres outside of but adjacent to the Friday Harbor urban growth area fail to comply with the GMA?
Issue No. 8: Do the allowable density provisions of the CP and UDC fail to comply with the Shoreline Management Act and/or Shoreline Master Program?
Issue No. 9: Do the allowable density provisions of the CP and UDC fail to comply with Goal 6 of the GMA because of the failure to restrict growth to appropriate levels and places?
Issue No. 10: Is the CP internally consistent and/or consistent with the adopted development regulations?
Issue No. 12: Do the density provisions in designated resource lands comply with the GMA?
B. The densities and land use designations of San Juan County, including its villages and hamlets, comply with the GMA and are in keeping with the Countys small size and character. (Issues 1, 2, 9 and 12).
As has been repeatedly pointed out by petitioners, the County made a decision early in the planning process to retain the densities from the l979 Comprehensive Plan. CP §2.1.C. In l993 the County appointed three Citizen Advisory Committees (CACs) and a Steering Committee to begin the work of revising the Comprehensive Plan. (CP, Introduction, Table 3). The County believed that the existing Comprehensive Plan addressed density issues in a manner which took into account the islands character and the tenants of the GMA. 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 l979. In order to create a plan and regulations which were an improvement on the l979 Plan, the County elected to retain the l979 densities and work from there to further advance the goals of the GMA.
It should be evident that there is nothing, in and of itself, wrong with retaining the l979 densities so long as those densities are in compliance with the GMA. Petitioners cite Growth Board decisions from other counties to support their argument that the rural and resource lands densities fail to comply with the GMA. However, the GMA itself makes no reference to specific densities. Rather, the GMA refers to considerations of character and appropriate uses in each of the land use elements. RCW 36.70A.050, .070, and .110.
Based on the language of the GMA, the Growth Board has developed general guidelines as to densities which are considered to be "rural" in a variety of cases and fact patterns. (Note: Extensive changes were made to some sections of the GMA in l997. Earlier growth board decisions do not reflect these changes to the GMA). As pointed out by petitioners, 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. 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.
WAC 365-195-060 (attached). See also RCW 36.70A.3201 giving deference to counties in how they plan for growth.
There are tremendous regional variations in Washington. In Lincoln County, where 99.1% of the land is farmed and the total land area is 2,311 square miles, 1000 acre wheat farms are common. In these vast open spaces a density of 5 acres would hardly seem to constitute a rural density. (##220049-50). The context demands something larger.
In Skagit County, where the tulip fields stretch to horizons bordered by dairy farms and mountains to the east and Puget Sound to the west, five to ten acre parcels have a rural feeling and the Growth Board has recognized these densities as rural. Friends of Skagit Cty. v. Skagit Cty, WWGMHB #95-2-0065, Finding of Non-Compliance, 1543, (February 1996).
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. The Countys rural uplands densities range from two acres to forty acres outside of Rural Activity Centers (which are specifically identified as areas of more intensive development. (##171853-54)). This range of densities is in keeping with the Countys small size and character.
For example, while Skagit County is 1,735 square miles (#22061), Orcas Island, the Countys largest island at 57 square miles, is only 3.3 percent the size of its mainland neighbor. In addition, Skagit County is surrounded on three sides by the land masses of Whatcom, Snohomish Chelan, and Okanogan counties. Orcas and the other islands are surrounded by water and this isolation gives the islands a feeling of much smaller scale.
It would be ironic, in light of a statutory directive which specifically gives local governments the ability to consider local circumstances and use their discretion in planning for growth, if this Board did not take into account the huge differences of scale between the individual islands and the mainland counties when deciding the issues of rural density. RCW 36.70A.3201. In fact, the Eastern Board has done exactly that in Ferry County where it determined, based on local circumstances that 2.5 acre lots constituted "rural development." Woodmansee v. Ferry County, EWGMHB #95-1-0010 at 2067 (May l996).
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 Islands farmlands and forests are appropriately smaller than those of Lincoln, Skagit, or Whatcom counties.
* * *
The Town of Friday Harbor contends that three areas surrounding the Town contain densities which exceed that appropriate for land surrounding a UGA. The Town argues that densities of 1 du per _ acre are urban and cannot be justified adjacent to a UGA. It also asserts that densities of 1du/2 acres adjacent to the Town will effectively prevent those areas from ever becoming Urban in the future. Finally, the Town argues that public facilities and services are needed, and not available to service these three areas at the designated densities.
The County has continually recognized that redesignation of the densities in the area east of Friday Harbor known as Pear Point/Turn Point may be appropriate. CP § 2.1.C. However, given the dispute between the County and petitioners regarding appropriate density designations in rural areas of the county, the County prefers to await the Boards ruling on these appeals before beginning the task of reconsidering the densities in areas surrounding the Town.
* * *
Petitioners also allege that the County has failed to comply with the goals of encouraging development in urban areas and reducing sprawl in rural areas. RCW 36.70A.020(1) and (2). The only UGA in the County is the Town of Friday Harbor which is a separate jurisdiction. The other islands have no urban growth area, therefore the County has identified villages and hamlets as appropriate areas for more intense rural development as provided by RCW 36.70A.070(5)(d)(i).
The Countys intent is set out in goal three of the CP: "Direct high density residential and mixed use development into activity centers to prevent sprawl and relieve growth pressure in the surrounding rural areas." CP § 2.2A.3. (#180022). Among the Countys 13 Activity Centers (excluding Friday Harbor) are the villages of Eastsound, Lopez Village, and the hamlets of Orcas Landing, Olga, Deer Harbor, Doe Bay, Westsound and Islandale. CP §2 Table 1. (#180030). These villages and hamlets are historical developments and have important roles to play in keeping the islands rural atmosphere.
Under the policies of the CP villages and hamlets serve the following functions:
Villages are similar to towns in that they provide similar uses and services but usually have only rural governmental services and are not incorporated. Villages provide a variety of housing types and residential densities, and are pedestrian-oriented with a compact village core. They have community sewage treatment facilities and community water systems.
Hamlets are high density residential areas with small commercial centers which provide goods and services to surrounding rural and resource land uses. Hamlets are served by community water systems and may have community sewage treatment facilities but have only rural governmental services.
CP §2.3.A.1.c. and d. at #180029. (Original emphasis).
These villages and hamlets do not provide traditional urban services such as police protection, fire protection, or municipal utilities. They are not urban growth areas and were not intended to act as such. However, they are a vital part of the management of growth on islands where it is impossible to direct residential growth to a UGA because UGAs do not exist.
In Ordinance 2-1998 the BOCC made legislative findings identifying villages and hamlets as areas of intensive development under RCW 36.70A.070(5)(d). (##171853-54). These villages and hamlets are readily identified from the Official Maps. They contain generally higher densities than surrounding rural neighborhoods. For example, densities in the core of Lopez Village and Orcas Landing are 7,000 square feet per unit and within the center of Eastsound there are no density limitations. (SJCC 126.96.36.199 and Maps). Densities in the other villages and hamlets are shown on the Maps and are generally _ acre. These traditional villages are being used by the County, consistent with the provisions in the GMA to direct growth in ways that avoid urban sprawl.
Petitioners have presented no evidence other than conclusory statements to support their claims that public facilities and services are inadequate to meet the goals of the GMA. (See Klein brief, p. 13).
* * *
Petitioner Klein argues that the Countys density designation of its resource lands does not meet the requirements of the GMA. The County has very little in the way of commercially productive farm and timberlands. In l992 the county ranked 38th out of 39 in the value of farm products sold, and in l994 ranked 29th in the state for timber harvest. (#0220141). Klein, himself, raises the question of whether forest resource lands in San Juan County are really a misnomer. This question was answered by the Forest Lands Technical Advisory Committee in December 23, l991 recommendations to the BOCC regarding the classification of forest lands of long-term commercial significance under the GMA. "The Committee concludes that San Juan County does not have forest lands of long-term commercial significance. . . [under the GMA]." (#10930-32). Nevertheless, the Committee recommended that the County protect forest lands for reasons other than their long-term commercial significance.
In identifying forest and agricultural resource lands the County relied on the selection criteria set out in the CP. CP § 2.3.C.4.a(1) and .b(1). Although the density designations on the Maps are different in some cases than the selection criteria the County has adopted additional mechanisms for protecting these resources. The County has adopted "Right to Farm and Forest Provisions" in UDC § 3.3.2. There is also a prohibition against incompatible uses (UDC Tables 3.1 and 3.2) in resource lands, and standards for development within these special districts. UDC Table 6.2.
The County further protects resource lands by restricting development to no more than 20% of the parcel. (UDC Table 3.2 fn 15 and UDC § 7.6.2.h., #180369). Contrary to Kleins assertions, County policies would not allow a 40 acre parcel with a 5-acre density designation to be divided into 8 five acre lots each one of which could clear one acre for a homesite. Rather the County would require that 80% of the resource be left intact and the development be clustered on no more than 20% of the land.
The Board has taken a mixed view of whether clustering is an appropriate means of protecting resource lands from inappropriate development. However, clustering has been upheld in some cases as a means of protecting resource lands. Abenroth v. Skagit County WWGMHB # 97-2-0060c, Final Decision and Order, 2783 at 2808, (January l998). The deciding factor in cases this Board has decided appears to be the underlying densities. As with densities in general, discussed previously, the Board should take into consideration the small size of the islands, and the low productivity of the resource lands themselves. To compare forest resource lands in San Juan County with those in Whatcom County, or San Juan County farmland with Skagit County farmland is to compare apples and oranges. Without recognizing the small scale of forestry and farming in the islands, it is not possible to plan for the protection of this resource.
Even the petitioner appears to realize that it is difficult to treat the Countys forest resources as a viable industry. "Perhaps there would be more integrity to just forget about the resource tag and call them what they appear to be, namely, low density rural residential and be done with it." Klein brief pp. 27-28.
C. The San Juan County CP and UDC are internally consistent. (Issue 10).
Intervenor Symons brief is based on a premise that the Countys entire CP is inconsistent with a Vision Statement which pictures a small, quiet rural community. 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 Countys future. The County is not only entitled to rely on OFM population projections, it is required to do so. Dawes v. Mason Cty, WWGMHB # 96-2-0023 FDO, 2195, (Dec. 1996) at 2199.
Symons brief forcefully expresses an understandable desire to curtail growth in the islands. He takes great effort in recreating the Countys growth curve using figures other than those provided by OFM. He then concludes that the growth rate "far exceeds the rate of change that the Vision Statement contemplates." Unfortunately, even when a desire for less growth is expressed in a plans vision statement, the function of the GMA is not to limit growth. The GMAs goal is to provide for growth in appropriate ways. Even if Symons figures were correct, the County is obligated under the GMA to plan for the increased numbers of people coming here; not devise ways to turn them away.
Petitioner Klein argues that the language in the CP describing Rural Farm-Forest, Rural Residential, Agricultural Resource Lands, and Forest Resource Lands is inconsistent with the density designations of these lands on the official maps.
With respect to Rural Farm-Forest (RFF) and Rural Residential (RR), petitioners are attempting to turn general descriptive language into a mandatory provision. For example, with respect to RFF the CP states that:
Areas which are characterized by the following criteria may be designated as Rural Farm-Forest lands . . . (i) The predominant land use is farming and forestry mixed with residential development; (ii) Parcels are generally five to ten acres in size. . .
CP § 2.3.B.b.(1).
This language describes the typical size of existing parcels. In fact there are existing parcels in RFF districts with parcels which are much smaller than five acres and much larger than 10 acres. See Official Maps. And while there are areas of RFF which have density designations of 2 acres/du, there are also areas which are designated 15 acres/du. It is clear that the language in the CP does not limit the density designation to 5 or 10 acres per dwelling unit, but merely describes the typical existing parcel size in these neighborhoods.
The same can be said for the Rural Residential land use designation description in the CP which states:
Areas which are characterized by the following criteria may be designated as Rural Residential . . . There are existing small acreage platted areas . . . Parcels are generally two to five acres in size, and may also include areas with lots less than two acres in size."
CP § 2.3.B.c.(1).
An examination of the Rural Residential districts on the Official Maps (coded yellow) shows that these districts contain land already subdivided for residential use. The County has identified these districts as areas of more intensive rural development under RCW 36.70A.070(5)(d). (See County Ordinance 2-1998, pp.10-11, #171854-55). The Maps, densities and the land use descriptions are not in conflict. The CP contains criteria for placing land in the Rural Residential land use district. The maps show densities considered appropriate for infill in those districts. There is no inconsistency. Petitioners arguments ultimately come back to the issue discussed in § II.C of this brief regarding rural densities under the Countys CP. The answer to this question should be decided on its own merits and not as part of a theory of inconsistency.
As with the RFF and RR land use designations, the descriptions in the CP for Resource Lands clearly describe criteria for selection of land to be included in these designations: "Lands in agricultural use which are characterized by the following criteria may be designated as Agricultural Resource Lands[.]". CP § 2.3.C.4.a.(1). And, "[l]ands which are characterized by the following criteria may be designated Forest Resource Lands[.]". CP § 2.3.C.4.b.(1).
In the case of Agricultural Resource lands, the county identified lands with certain soil types in the agricultural open space taxation program which were in parcels of 10 acres or larger. CP § 2.3.C.4.a. With respect to Forest Resource lands, the county identified land receiving designated forest land tax status which contained certain grades of timber and was in parcels 20 acres or larger. CP § 2.3.C.4.b.
There are density designations of Resource Lands on the Maps which are smaller than the densities used in the criteria for selection set out in the CP. This is not an inconsistency, but rather a reflection of the Countys policy to allow some division of Resource Lands which still protects the agricultural or forest resources by requiring clustering of the development to conserve the resource.
D. The densities on San Juan County shorelines do not violate the SMA or the Countys SMP (Issue No. 8).
Bahrych is the only petitioner who addresses the issue of shoreline densities. Nowhere in her brief (pp. 18-20) does she state how the Countys shoreline densities fail to comply with the SMA or the Countys SMP. (Compliance with the GMA is not part of this issue). Instead, Bahrych makes inaccurate statements regarding the allowable densities within the shoreline based upon her premise that the presence of a guest house doubles the density of the parcel. (See this brief Section I.B.). The actual allowed dwelling units per acre in the contested areas of the shoreline are: Rural Farm Forest, 1 du/2 acres; Rural, 2 du/acre; Rural Residential, 2du/acre; and Conservancy, 1du/acre.
In fact, the States SMA does not discuss densities at all. Interestingly, The Friends take the position that "Shoreline regulations at all levels of government are out of date. . .." Friends brief p. 16. The tenor of the Friends brief is that the states SMA needs to be rewritten. That is an argument for another day. The issue before the Board is whether San Juan County has violated the SMA and SMP which exist today.
The States SMA and the Countys SMP both give preferences to single-family residential use. RCW 90.58.020. WAC 173-27-040. CP § 3.2.A.3. (Attached). The Countys SMP states a preference for single-family residential use. Rural and Rural Residential environments are intended for single family homes. The SMP clearly states that the Rural environment is "intended for residential development . . .." The Rural Residential Environment is "intended primarily for residential shoreline development only." It is evident from the Official Maps that the rural residential areas of the shoreline are, for the most part, already subdivided into residential neighborhoods. This fact was recognized by the County in Ordinance 2-1998 when it designated RR districts as limited areas for more intensive development under RCW 36.70A.070(5)(d). (##171853-54).
The Conservancy environment is "designed to protect valuable natural resources . . .", and virtually all of the Conservancy land in the County is in public ownership. For example, British Camp, American Camp, Lime Kiln State Park, and the University of Washington on San Juan Island; Moran State Park and DNR property on Orcas Island; and Spencer Spit State Park, Olga County Park, and the Shark Reef Preserve on Lopez. See Official Maps. The Rural Farm Forest environment is "designed to protect agricultural and timber lands, to maintain open spaces, and to provide for development related to the commercial fishing industry" CP § 3.1.C.
The Countys SMP (CP §3 and UDC §5) is full of regulations which protect the shoreline as required by the SMA. For example, in contrast to the assertions of Bahrych, guest houses are not considered "normal appurtenances" in the shoreline unless they are to be used solely by the owners family. Construction of a guest house for short or long term rental requires a shoreline substantial development permit and a shoreline conditional use permit. Both long and short term rentals require shoreline conditional use permits. Long term rentals are prohibited in Natural districts. (Appendix I, Part B). In addition, guest houses in the shoreline are required to be located in such a way that maintain the single-family appearance. UDC §5.5.18.e.(6).
And, as with guest houses on the uplands, guest houses rented on shoreline properties are considered a single dwelling unit to be occupied by a single family as defined by the UDC. This means that the main residence and both structures together can house no more than 8 unrelated individuals. (See Addendum I, Part C).
Shoreline property is exceedingly expensive. Limiting the shorelines of San Juan County to parcels over 5 acres in size as Bahrych would have the county do, would be to turn over the shorelines of the County exclusively to the super rich who are now beginning to find their way to these islands. The family cabins and simple homes which can still be found on the shorelines will be consigned to the memories of "the olden days."
Shorelines, by their very nature, are different from uplands parcels. They are fronted by the expansive open space of the sea. The shoreline area itself is only 200 feet wide, and is backed by uplands, generally with much lower densities than the shorelines themselves. The open space provided by the water and the lower densities of the uplands serve as a buffer to the higher shoreline densities which, in turn, provide access to the shorelines by greater numbers of people than if the shorelines were to become solely estates for the exceedingly wealthy.
The Petitioners have failed to show that the countys designations of its shorelines are clearly erroneous with regard to the States SMA or the countys own SMP.
III. AFFORDABLE HOUSING
Issue No. 11. Do the CP and/or DRs fail to comply with the affordable housing provisions of the GMA because of:
A. The allowable density provisions;
B. a failure to comply with .070(2) and/or WAC 365-195-310; and/or
C. implementation of CP 5.2A and B?
Issue No. 14: Did San Juan County fail to comply with the GMA by neglecting to include in its housing element a statement of mandatory provisions for the preservation, improvement and development of housing, including single family residences and/or fail to comply with the GMA by neglecting to make adequate provisions for existing and projected housing needs of all economic segments of the community as set forth in .070(2)?
B. San Juan County has complied with the Housing element requirements of the GMA. (Issues 11 and 14).
The GMA's housing policies are set out in RCW 36.70A.070(2) and WAC 365-195-310. Element 5 of the San Juan County Comprehensive Plan is the Housing Element (##180101-180104).
San Juan County's accomplishments with regard to affordable housing are reflected throughout the record underlying these appeals. The County has undertaken the following steps to comply with the Housing Element:
A. Creation of a Housing Advisory Board. This board, which was created in 1994, advises the County on housing issues and coordinates the development of affordable housing opportunities.
B. Housing Needs Assessment. The County has prepared a Housing Needs Assessment which has been made part of the Comprehensive Plan. (CP Appendix 5). The assessment was originally prepared in 1992-93 and a grant application to update the assessment is nearly complete. Included in the assessment are community surveys, population forecasts, affordable housing needs forecasts, a
demographic and economic overview of the county, and a compendium of resources for affordable housing.
C. Low income rental opportunities. The County's Comprehensive Plan allows for the long-term rental of guest houses. (CP § 2.2.A.12, UDC § 4.18). The County's guest house policy was a specific response to the state's Fair Housing Policy Act of 1993, whose goal is to provide affordable housing to those of all income levels. RCW 43.63A.215(3) requires San Juan County to draft an ordinance allowing the rental of accessory dwelling units in an effort to provide affordable housing in single family neighborhoods. This statute has also been made part of the GMA. RCW 36.70A.400
D. Owner-builder permits. San Juan County Code Section 15.04 gives special opportunities for citizens to construct low-cost homes through a unique owner-builder program. (CP § 5.2.B.7). (## 171861, 180550-180551).
E. Facilitation of low-cost housing. As recognized by petitioner Campbell, the County has acted as a facilitator of state recognized model projects for low-income home ownership. (Ordinance 2-1998, ## 171861, 180104, 180579; CP Appendix 5, Appendix VII, ##180623-180630).
F. Density bonuses. The Eastsound Subarea Plan provides a density bonus in the Village Residential District for affordable housing. (Attached SJCC 16.55.220, CP § 5.2.B.2) Detailed planning for the other activity centers is underway and similar provisions are possible in those activity centers as well.
G. Activity Centers. The Land Use Element (CP § 2.3.A) and Official Maps of the CP have identified Village and Hamlet activity centers where the allowable density of residential development may be greater than generally accepted rural densities, and where community water and sewage facilities may or do exist. (#80018; Ordinance 2-1998 ##, 171853-171854; 180029-180032).
H. Research. The County has undertaken extensive research, much of which appears in the CP Appendix 1, in order to formulate the most effective approach to affordable housing issues.
I. Regulatory Barriers. The County has removed regulatory barriers as recommended by WAC 365-195-070(6):
1. Specific standards for "Farm Stay and Farm Worker Accommodations" were enacted in UDC § 4.17.
2. The San Juan County Comprehensive Plan allows manufactured homes in each land use designation, as long as they meet building codes and development standards.
3. Under UDC § 4.22 Mobile Home Parks are permitted in accordance with subdivision rules as a single-family use.
4. County regulations do not preclude the siting of facilities for "special needs" populations (e.g. the elderly, developmentally disabled, etc.) in any residential housing district. (UDC tables 3.1 and 3.2)
5. UDC §§ 4.13 and 6.16 allow for mixed-use development by providing regulations for home occupations and cottage industries that classify those uses as residential. (UDC Tables 3.1, 3.2)
6. Cluster Development is allowed as part of the normal subdivision development process, with no special additional requirements. (UDC § 7.6.2.b)
7. The County has developed regulations for the Planned Unit Development of Master-Planned Resorts that can be utilized to facilitate affordable housing for employees. (UDC § 9.6.4.c)
J. County goals. The County has adopted several policies, which, although not yet applied, suggest creative new ways to deal with the problems of affordable housing. County policies that will promote affordable housing include the following:
1. The County has, through the Housing Element of the CP, established the policy of implementing a "transfer of development rights" program. (CP § 5.2.B.4).
2. Planning for Activity Centers is currently in progress. As Activity Center plans are completed they have the potential to provide additional opportunities for affordable housing through such programs as density bonuses such as exist presently for Eastsound Village. (CP § 2.3.A).
4. The County has, through the Housing Element of the CP, established the policy formulating a density bonus program for low to moderate income housing and otherwise encouraged affordable housing through policies such as accelerated permit processing and reduced fees for development of low cost housing. (CP § 5.2.B.2; Ordinance 2-1998, # 171862)
5. The County has, through the Housing Element of the CP established a policy approving the formulation of implementing special standards for innovating site planning techniques. (CP § 5.2.A.5)
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RCW 36.70A.020(4) urges local government to "encourage the availability of affordable housing to all economic segments of the population of this state, promote a variety of residential densities and housing types, and encourage preservation of existing housing stock." (Emphasis added) RCW 3.70A.020(4) appears to be one of the less directive goals because it uses the verbs "encourage" and "promote," rather than more direct verbs like "ensure" or "protect." These directives are similar to the economic development goals of the GMA.
To comply with RCW 36.70A.070(2) the County should have a "plan, scheme, or design" for a housing element which:
(1) contains an inventory and analysis of existing and projected housing needs;
In Appendix 1 the County utilized data from the Washington State Office of Financial Management to estimate population, population growth and dwelling units, estimated peak population during the summer months; and compile a land use inventory. (Note: All Appendices are found in the Appendix section of the CP).
In Appendix 5 (Comprehensive Housing Needs Assessment) the County utilized Census information to determine general housing trends, stock of owner occupied housing and rental housing, profile the housing market with regard to construction and rentals, and to inventory publicly financed housing. Appendix 5 also utilized the state Comprehensive Housing Affordability Strategy study, census figures and research by the Washington Department of Community Development in evaluating the extent of homelessness and substandard housing in San Juan County.
Appendix II to Appendix 5 contains tables estimating the number of households in various income brackets in San Juan County based on Census information, estimates maximum affordable monthly housing costs, estimates the number of households in various income brackets, contains a San Juan housing and demographic profile, quantifies changes to housing and demographic indicators and the number of building permits issued in the county, utilizes Census figures to evaluate the quantity and costs of various housing units; identifies publicly financed housing, public assistance programs and households in need, and evaluates inflation indicators.
Appendix III to Appendix 5 summarizes a San Juan County opinion survey comprised of housing related questions.
Appendix IV to Appendix 5 analyzes responses to the Citizens' Advisory Committee on Housing survey.
Appendix V to Appendix 5 forecasts San Juan County population through the year 2015 at three different growth rates, projects changes in population, number of households, housing units, households in various income brackets, and households that need affordable housing. Appendix V also forecasts housing and housing needs based on the three population growth projections.
Appendix VI to Appendix 5 contains a San Juan County demographic and economic overview including an analysis of general population trends, the educational background of county residents, personal income figures including an assessment of the percentages of residents living below the poverty threshold, employment and business patterns, and the effects of economic and demographic factors on affordable housing. Tables in Appendix VI quantify the San Juan County population, the percentage of the county population aged 65 or older; population change due to births, deaths and net migration; population by age and race, resident civilian labor force and employment, unemployment figures, per capita personal income, the number of real estate transactions and total value, housing units authorized by building permit, and county business indicators.
(2) contains a statement of goals, policies, objectives, and mandatory provisions for the preservation, improvement, and development of housing, including single-family residences;
In Appendix 5 (Comprehensive Housing Needs Assessment) the County identifies and outlines federal, state, county and local policies effecting affordable housing and construction of affordable housing.
The Housing Element (CP 5) contains a statement of purpose, a summary of housing needs, and goals and policies to provide for adequate provision for a variety of housing choices in terms of type, cost, size, design and suitability for various households including families, the elderly, the disabled, and housing for very low-, low-, and moderate-income ranges while recognizing the unique physical, social, and economic environment of the islands.
(3) identify sufficient land for housing, including, but not limited to, government-assisted housing, housing for low-income families, manufactured housing, multi-family housing, group homes, and foster care facilities;
In Appendix 1 the County estimates potential upland parcels; estimates acreage, existing upland parcels and potential parcels by CP designation; estimates shoreline footage by designation, and includes a land use inventory.
In Appendix 5 (Comprehensive Housing Needs Assessment) the County estimates the extent, and needs of, special needs populations in San Juan County.
Appendix II to Appendix 5 contains tables estimating the number of households in various income brackets in San Juan County based on Census information, estimates maximum affordable monthly housing costs, estimates the number of households in various income brackets, contains a San Juan housing and demographic profile, quantifies changes to housing and demographic indicators and the number of building permits issued in the county, utilizes Census figures to evaluate the quantity and costs of various housing units; identifies publicly financed housing and public assistance programs, estimates the number and percentage of households in need, and evaluates inflation indicators.
Appendix VIII to Appendix 5 identifies the location of lands designated urban and suburban. These designations have been replaced with various activity center designations as can be seen on the Official Maps. However they still identify land potentially suitable for special needs housing.
(4) make adequate provisions for existing and projected needs of all economic segments of the community.
In Appendix 1 the County applies data from the Washington State Office of Financial Management to project population change.
In Appendix 5 (Comprehensive Housing Needs Assessment) the County analyzes the definition and scope of affordable housing concerns as they effect San Juan County, and also identifies resources to provide and support affordable housing.
Appendix VII to Appendix 5 identifies resources for affordable housing.
CP Element 5, the Housing Element contains a statement of purpose, and a summary of housing needs. CP Element 5 also enumerates goals and policies designed to provide for adequate provision for a variety of housing choices in terms of type, cost, size, design and suitability for various households including families, the elderly, the disabled, and housing for very low-, low-, and moderate-income ranges while recognizing the unique physical, social, and economic environment of the islands.
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A jurisdiction can "encourage the availability of affordable housing" in many ways. West Seattle Defense Fund v. City of Seattle, CPSGMWB #94-3-0016, FDO, 773 (April 1995) at 803.
WAC 365-195-060 (Regional and local variations) provides:
In commenting on plans and regulations proposed for adoption, state agencies including the department should be guided by a common-sense appreciation of the size of the jurisdiction involved and the magnitude of the problems addressed. It is anticipated that the growth planning hearings boards will be informed by the same awareness. (Emphasis added)
San Juan County has limited resources as best demonstrated by the fact that it has the smallest government among the state's 39 counties. For small counties WAC 365-195-060 provides guidance:
(3) Local plans and development regulations are expected to vary in complexity and in level of detail provided in the supporting record, depending on population size, growth rates, resources available for planning and scale of facilities, and services provided.
(4) In general, smaller jurisdictions will not be expected to engage in extensive original research...
Nevertheless San Juan County has established a Housing Board and has enacted a Housing Element which goes beyond "encouraging the availability of affordable housing," "promot[ing] a variety of residential densities and housing types," and "encourag[ing] preservation of existing housing stock." RCW 36.70A.020(4).
C. Petitioners demands ignore the Countys wide range of discretion in meeting the requirements of the GMA and RCW 43.60A.215.
In recognition of the broad range of discretion that may be exercised by counties . . . consistent with the requirements of this chapter, the legislature intends for the boards to grant deference to counties . . . in how they plan for growth, consistent with the requirements and goals of this chapter. Local comprehensive plans and development regulations require counties . . . to balance priorities and options for action in full consideration of local circumstances.
Petitioners argue both that the Countys guest house rental policy, which takes advantage of "local circumstances" to provide affordable housing, should be overturned and that the County has failed to consider the needs of affordable housing. Petitioners' arguments fail to fully consider the fact that San Juan County is entirely rural. The only UGA is the Town of Friday Harbor which is a separate jurisdiction. Petitioners are critical of the County's guest house policy because they believe it places more people in the rural areas, but some increase in rural population is inevitable unless new housing is prohibited outside of Friday Harbor or population trends inexplicably reverse themselves.
Petitioner Bahrych erroneously contends that the County has failed to promote the infill of the Activity Centers. The County has made a concerted effort to use the rural Activity Centers as areas of more intense development as permitted under RCW 36.70A.070.(5)(d)(i). (Ordinance 2-1998, #171853). "The overall density of an activity center should be high enough to support efficient public services and provide affordable housing opportunities." CP § 2.3.A.10. For example, under the Eastsound subarea plan a density bonus would allow multi-family densities up to 12 units per acre, approximately twice the standard density in county Urban designations, and approaching the average density of multifamily housing now in place in Friday Harbor. (SJCC § 16.55.220.C.2, attached). Parts of Eastsound Village have unlimited residential densities. (SJCC § 188.8.131.52). Likewise, areas of Lopez Village and Orcas Landing have densities of 1 du/7000 square feet. (Official Maps).
Petitioners concerns generally appear to fall in areas in which the County enjoys discretion in its actions. As in City of Renton v. City of Newcastle, CPSGMHB # 97-3-0026, FDO (1998) at 2848, "It is not fatal to (local government's) Plan that specific units of affordable housing cannot be identified." Similarly it is not fatal to the County's plan that the process did not culminate in any particular result.
The County's policies aim toward providing affordable housing in both rural areas and activity centers, by recognizing and utilizing local circumstances and existing land use patterns.
Compliance with the Act is an on-going process. The process is not complete with completion of the Comprehensive Plan, Woodmansee et al. v. Ferry County, EWGMHB #95-1-0010, FDO (May1996) at 2068. "Nothing in the GMA... requires (local government) to show a detailed plan as to how these policies will be achieved." Benaroya et al. v. Redmond, CPSGMHB #95-3-0072, FDO, 1753 (March 1996) at 1770.
San Juan County recognizes that its CP offers a set of policies and standards that need to be expanded and augmented. The County is engaged in a continuing process of implementing its policies to encourage and promote affordable housing in San Juan County.
Petitioners have failed to raise substantial concerns that leave one with "the firm and definite conviction," Department of Ecology v. PUD 1, 121 W.2d 179, 201 (1993), that "the action by the...county...is clearly erroneous in view of the entire record(.)" RCW 36.70A.320(3).
Petitioner's appeals should therefore be denied.
TABLE OF AUTHORITIES
Abenroth v. Skagit County
WWGMHB # 97-2-0060c (January 1998) at 2783
The County has put years of effort into crafting a Plan and UDC of which it is proud. A brief look at the Index of the Record confirms the widespread public participation and thought that went into this Plan. The BOCC has the ability to consider local circumstances and balance community priorities in enacting the Plan and UDC. The resulting Plan is presumed to be valid. The County believes it has crafted a Plan and regulations which fulfill the spirit and intent of the GMA and that the Plan and UDC should be upheld by this Board.
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Date: June 4,1999
Friday Harbor, Washington
RANDALL K. GAYLORD
Karen E. Vedder, WSBA #16,951
Deputy Prosecuting Attorney
Attorney for San Juan County