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06/07/2006: "Against Legal Advice, CC Approves ADU Ord"

(Myhr & Lichter with buttons passed out at Public Hearing on ADUs)

Adding restrictions that had been removed from the proposed Ordinance on Accessory Dwelling Units (ADUs)/Guest Houses, The County Council has now approved an Ordinance that will, in the words of the Council, "Not make anyone happy". Of those who spoke at the public hearing on Tuesday, it was clear that the majority of the public who testified were opposed to most of the components of the ordinance, and only a handful spoke in favor, the majority of which, is not all of, were members -or officers- of the Friends of the San Juans.

As was the case at the last hearing, the hearing room was packed, and many members of the public who were opposed to the proposed ordinance could be easily identified by the large yellow buttons they wore, (Previous Story) that stated: "73.5% REPRESENT US!"

The main objection to the ordinance from the public was that it included new regulations not required by the Growth Management Board. The second main objection was that it added new restrictions not required for the County to be found incompliance with the Growth Management Board. Former Planning Commissioner Jim Nelson read off a list of items included in the ordinance that were not required to be there. There were also concerns expressed by a number of speakers that there would be unintended consequences resulting from some of the new restrictions, and some of those requirements would end up doing more harm than good, and paradoxically would go counter to the reasons the Council had included them in the first place. Other speakers pointed out that some of the language the Council had included would be in conflict, or at least confusing, with existing language in the Uniform Development Code.

In the most dramatic moment of the hearing, Randy Gaylord told the Council the because the ordinance still allowed some "free standing" guest houses, which is the only thing that the GMB had ordered the County not to do, it would continue to keep the County non-compliant, and therefore would be rejected by the GMB.

Chair Alan Lichter, as he did in last hearing, wanted to foreclose comments from Prosecutor Gaylord as to his legal opinion on the Council's actions. As Gaylord was speaking Lichter attempted to stop him by stating "I said the Council is going into deliberations now!", but this time the public instantaneously responded to Lichter's attempt with what can only be described as a roar of protest that clearly shocked the Council. Kevin Ranker started to protest the response of the crowd, but quickly fell silent. Lichter then allowed Gaylord to continue to speak.

The unwillingness of the Council to receive, let alone accept, counsel from the Prosecuting Attorney's office in the past hearing had been noted by members of the public when giving testimony, most notably from former County Commissioner John Evans, who said he wanted to know what the legal opinion was from the Prosecutor's office, and asked the Council to request it prior to the end of the hearing. There was no comment from the Council on the request. And the Council closed the public comment portion of the hearing at 3:00 pm, and started their discussion on the proposed ordinance.

It is during discussion time that the Council asks questions of staff, and on rare occasions from one of the members of the public, and Councilman Bob Myhr got into a back-and-forth with Prosecutor Randy Gaylord on the issue raised by some members of the public on the legality of the Ordinance. Gaylord responded in a carefully worded opinion that he believed the ordinance was not in compliance with the GMB order, and not in compliance with the order of the Superior Court case, so that to that extent, one could say it was not legal. Myhr seemed troubled by the answer and pressed Gaylord on the question by asking if the Council was doing something illegal, to which Gaylord re-stated his opinion that the inclusion of freestanding ADUs would not be acceptable to the GMA.. When Ranker told Gaylord that "Illegal seems a little harsh…" Gaylord said "There is nothing illegal in adopting and ordinance that will not be found to be compliant". That satisfied Myhr.

Shortly after 5:00 pm the Council voted to approve the presented ordinance, with minor changes, and then will meet to pass the corrected version on Thursday, June 8th.