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02/08/2006: "PA & CC At Odds..Again"

(Bahrych & O'Day address Council; Randy Gaylord standing at back of room)

It is not often that one will see Stephanie O'Day and Lynn Bahrych, attorneys both, sitting next to each other, let alone agreeing on any major points, but on Tuesday both came before the CC (County Council) to ask the Council to solve an on-going issue for a number of land owners that are not allowed to build a main residence if a guest house had already been permitted and constructed on the property, even though past regulations had allowed it. Both of the attorneys asked the Council to adopt new language to the code that would grant vesting of rights to the effected permit holders.

In response to the request by O'Day and Bahrych, the Council had two drafts in front of them that would address the request that the Council solve the long standing matter of the lack of regulations addressing land use and building permit vesting in San Juan County. But in what is becoming standard operating procedure, the CC ignored legal advice and the draft of legislation by the Prosecutor's office, preferring instead to use language drafted within their own office.


The Council has come under heavy pressure and a lawsuit to resolve this problem, and at Tuesday's Council meeting they introduced the proposed language purportedly authored by Councilman Ranker to solve the problem. Ranker's "suggested language for new section 18.80.25 Vesting of Permits Approved Prior to November 30, 2000" narrowed it's interest on a simple and pointed response to one aspect of the problem by stating that if one had submitted and received a building permit for a guest house prior to November 30, 2000, one may also apply to build a main house "as an exemption under the current code regulating accessory dwelling units".

Prior to the appeals by the Friends of the San Juans, one could build a guest house (now called an Accessory Dwelling Unit, or an ADU) on some properties if it met the strict standards of size and other related requirements. A large number of people built these in anticipation of later constructing a main house. But the appeal resulted in confusion at the County level, and a decision that the home owner was now stuck with the guest house only, unless they wanted to tear-out the kitchen.

If SJ County had a Vesting ordinance, the ordinance would hopefully spell out what rights an applicant for a permit, or the holder of a permit, would have in the present or in the future, to move forward on a permit. San Juan Country does not have an ordinance, so it is forced to look to State law for guidance. This has worked fairly well in the past, but the appeals of the County CP (Comprehensive Plan) and the UDC (Uniform Development Code) to the GMB (Growth Management Board) resulted in -among a host of other problems- a "freeze" on allowing -in simple terms- the building of a main house if there was already a "guest house" on a property.

Randy Gaylord, the PA (Prosecuting Attorney, is the County Council's lawyer), had presented draft language to the Council that was the Prosecutor's office advice to the Council on addressing not only the immediate problem of the Guest House issue, but also the corollary issues. Such as, what counts as a "complete Building Permit", and his draft spelled out in detail the "sequence of development of Main House and Accessory Dwelling". Obviously the attorneys in the Prosecutor's office were attempting to close off any loop holes or gaps that would result in the County ending back in Court, because of incomplete or missing language in an ordinance that might result in interpretations of how to process permits, and so Gaylord's draft addressed issues in both the land use and the building codes.

The Council was having none of it, and wanted to quickly move on the one "simple" paragraph suggested by Ranker, as opposed to the longer detailed draft from the Prosecutor. Gaylord told the Council that it was not the length of a document that made it simple or complex.. Ranker and Myhr decided to take a two step process of first adopting the Ranker language, and then addressing building code issues at a later date. Myhr, who has been particularly critical of Gaylord's legal council, stated that he was in favor of Ranker's proposal, in that It makes sense..common sense". Chairman Lichter agreed, and said the Council will send the Ranker proposal to the planning staff, then to the Planning Commission, and then back to the Council for adoption.