Posted 10/8/2013
by Jeff Rhodes
for The Olympia Report
Members of a local citizens group have filed an appeal in Superior Court of recently adopted updates to San Juan County’s Growth Management Act, claiming their aim is to block development entirely rather than address the potential impact of specific projects.
San Juan County, WA – Believing that the San Juan County Growth Management Board failed to address several critical and fatal flaws in its December 2012 Critical Areas Ordinance (CAO), both Common Sense Alliance and the Taggares Co. on Wednesday filed petitions for review of the board’s decision in Superior Court.
The court will be asked to stay the Growth Board order to remove the pressure of any compliance deadline.
At issue is whether the CAO was written in such a way as to address the effects of of specific development — as the law requires — or as an obstacle to all development.
“The courts of this state have long made it clear that before local government may burden a private property owner with an encumbrance as a result of development … there must be a direct link between the impacts created by the project proposed and mitigation required,” wrote Alexander Mackie, an attorney for Perkins Coie in Seattle, in a letter announcing the appeal to the San Juan County Council.
“Yet the water buffer and the tree-protection buffers required by the San Juan Critical Areas Ordinances under review are both applied based on the fact of development regardless of impact, need or benefit,” he explained. “As I am unaware of any court (that) has upheld the imposition of buffers to developed and developing property without some indicia of need tied to the impacts of development, we believe the courts will take a very careful at this defect in your system.”
Under the state’s 1990 Growth Management Act, local jurisdictions are required to designate and protect “critical areas,” including wetlands and fish and wildlife conservation areas. Their plans must be periodically revisited and, in December 2012, San Juan County updated its development regulations regarding critical areas by adopting several new ordinances.
The new regulations deal with buffers that prevent owners of private property from developing any of their own land if the project will be sited close to a body of water or shoreline.
In early 2013, the Common Sense Alliance, the Friends of the San Juans, the P.J. Taggares Co., the San Juan Builders Association and William H. Wright filed petitions appealing the ordinances to the state’s Growth Management Hearings Board.
In September, the board rejected the contentions of all petitioners except the Friends. Any of the petitioners could appeal the decision in court, and now two have.
“The whole point of the (GMA) legislation,” Mackie wrote in an earlier court action, “was to preclude the wholesale designation of critical areas and to force local governments to look at the definitions of ‘critical areas,’ to identify science that enables them to distinguish between those areas that are ‘critical’ and those that are not…”