04/17/2006: "Court Of Appeals Wants To Hear More."

In a major setback for the County Council, the Court of Appeals has ruled that the Court wishes to receive additional argument, as to why the Court should grant the County's filed request for additional time to pass a proposed ordinance on ADUs. An ordinance, that if passed, would restrict the building of guest houses. The Court has ruled that:

"Margaret M. Manning and Timothy P. Blanchard move to file brief Amicus Curiae in opposition to motion to further stay proceedings in the above entitled matter. As the motion appears to raise a substantial issue and a response would assist the Court in resolving the motion, the Court directs the Appellants and Respondents to file a response to the motion within twenty (20) days of the order. Accordingly, it is so ordered."

The Council is attempting to side-step the current legal proceedings by passing a restrictive ordinance on ADUs (Accessory Dwelling Units, e.g., Guest Houses) before the court makes a ruling on the issue. Because the Council is forced by law to follow a protocol that requires public participation, and public input on the ordnance, the Council is concerned that the court may pronounce before an ordinance can be passed, so the Council has already requested and received one stay, and has now asked for a second one. ( Previous Story )

The court ruling on granting additional time for further argument on the Council's request for the second stay, was in response to a legal brief that was submitted to the court by Orcas property owners Margaret M. Manning and Timothy P. Blanchard, who argued in their recent brief ( Previous Story ) to the court argued that:

"At best, the controversy may be completely resolved by the Court's decision; at worst, an adverse decision would provide the County, and the substantial number of its citizens who have already built guesthouses or wish to build guesthouses in affected areas, definitive guidance concerning the issue. More important, the issue of whether the WWGMHB's "bright line" rule that anything (including an accessory dwelling unit) more than one residential unit per five acres constitutes urban sprawl has predictably arisen in several other counties, many of which are looking to this case and this Court for guidance."

The original appeal to the courts was started by former County Commissioners Rhea Miller and Darcie Nielsen, both Democrates, and John Evans, a Republican, in an attempt to resolve the appeal by the Friends of the San Juans of the Guest House regulations, by asking the Court of Appeals to look at all sides of the argument, and then decide to what extent San Juan County (and by extension, other counties) can build ADUs -the Friends opinion notwithstanding. But the new County Council has other ideas, and decided to ask the court to hold up in giving an opinion the former Board had asked for, while allowing the Council and the Friends work out a deal on a new set of regulations that would satisfy the concerns of the Friends.

Manning and Blanchared told the court that:

"We submit that the public interest argues strongly for denial of the parties' second request for stay, and issuance of a decision directly addressing the questions raised in this appeal.

When the County Council learned of the filing of the brief, they seemed less than concerned, and Councilman Ranker told Randy Gaylord that Manning and Blanchared had no standing in the case, and that it was too late for them to get involved. At a Council meeting Ranker asked Gaylord if the proposed ordinance can be passed before the court makes a decision, then even if the court ruled in favor of the County, (i.e. ruled in favor of the County, and against the Council's desire to change the existing rules allowing guest houses), would the courts ruling be moot. But Gaylord disagreed; and in the brief to the court, Manning and Blanchared appear to have anticipated Ranker's argument

"The Supreme Court in Sorenson v. City of Bellingham concluded that a court may, in its discretion, retain and decide an appeal that has otherwise become moot when it can be said that matters of continuing and substantial public interest are involved."

Since it is a matter of record that other counties are waiting for the court to give some guidance on ADUs, there is clearly "substantial public interest involved" that goes beyond San Juan County.

While all sides will now prepare additional arguments to submit to the court, the County Council will hold a public hearing next Tuesday to take public input on the recommendations the Planning Commission has already submitted to the Council, and that the Council accepted with few changes. ( Previous Story ). In the meantime, it is possible that the court will still make a ruling on the original case, and it may be the attempt of a settlement between the Council and the Friends that will become moot.