07/13/2006: "Council Moves Forward On ADU "Vesting" Ord"

ig_Gaylord-Henrickson-1 (45k image)
(Randy Gaylord and Ron Henrickson wait to give input to Council)

The County Council has agreed to go forward with a draft ordinance (Full text of ordinance follows this report) that is intended to allow a certain class of applicants to proceed with the construction of a main house, but only if they have already build a "guest house" with the intent of building a main house at a later date, and only if:

those properties that meet both of the following criteria for which the landowner has the burden of proving that a property is eligible.
1. Properties for which a complete building permit for a freestanding accessory dwelling unit (then called a "guest house" and hereafter called a "freestanding accessory dwelling unit") with a living area that did not exceed 1000 square feet was submitted after November 30, 1991 and before November 30,2000. An accessory dwelling unit or guest house for which a building permit application was submitted before November 30, 1991 or after November 30, 2000 do not qualify under this criteria.
2. Properties for which at least one of the owners on the date of submission of a completed application for a principal residence was in continuous ownership of said property from July 25, 2005.

The title of the draft ordinance is "Ordinance Establishing Rules To Apply To The Contruction (sic.) Of A Principal Residence After The Construction Of A Certain Lawful Freestanding Accessory Dwelling Unit For A Period Of Five Years"

On Tuesday (6-11-06) the Council held a public hearing on the draft, and as one might expect, found both support for, and opposition against the draft. What was somewhat of a surprise -given the number of citizens that have shown up in the past for any hearing on the ADU issue- was the lack of participation at the hearing. The room was almost empty of members of the public, and only two members of the Friends of the San Juans spoke strongly in favor, while three "private citizens" expressed concerns, or made suggestions, on how the ordinance could be improved.

The support for the ordinance was simply that it was needed, and that it should be adopted as a matter of fairness for those that have been ‘trapped" by the moratorium. Those against were primarily concerned with certain specific new rules and regulations that had been inserted into the ordinance, but the Council simply listened to the testimony, and showed little interest in getting into the content of the testimony.

At the close of public input, and after a very brief discussion between Councilman Myhr and Chairman Lichter, Lichter announced that it was time for the Council to make a decision, at which time Prosecuting Attorney Randy Gaylord asked Lichter if they intended not to ask for any input from him. Lichter granted permission to Gaylord to speak, at which time Gaylord once again advised the council not to pass the ordinance: "It is a mistake to adopt this ordinance now, you should wait until after action has been taken by the Growth Management Board".

In prior work sessions Gaylord had pointed out that the draft ordinance adopted new rules and regulations, as opposed to simply attempting to solve the problem of allowing relief to those trapped in the moratorium. Gaylord again stated his concerns, and felt that from a legal standpoint the Council should wait until the underlying ADU issue was resolved by the Growth Management Board (GMB) before sending a new ordinance, with new rules, to the GMB for their review.

Gaylord said that he was "strongly in favor of the intent of this ordinance, but I have studied carefully the law…" and at this point Myhr interrupted Gaylord demanding to know "who makes the decision to send the ordinance to the GMB for review"?. While Gaylord was responding, Myhr again asked "who makes that decision?", and Gaylord pointed out that since the draft ordinance included rules and regulations pertaining to land use, he was required to forward it for compliance review.

Lichter told Gaylord that "This vesting ordinance has nothing to do with the ADU ordinance, what we are doing here is strictly a local issue to address a basic fairness issue". Myhr then added that "I understand what our Prosecuting Attorney said, I think we should move forward with this."

That brought the hearing to a close as the Council decided to adopt the ordinance with minor wording changes.
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DRAFT
Ordinance No.-2006

ORDINANCE ESTABLISHING RULES TO APPLY TO THE CONTRUCTION OF A
PRINCIPAL RESIDENCE AFTER THE CONSTRUCTION OF A CERTAIN LAWFUL FREESTANDING ACCESSORY DWELLING UNIT FOR A PERIOD OF FIVE YEARS

WHEREAS, prior to November 30, 2000, San Juan County lawfully allowed the construction of a freestanding accessory dwelling unit, (then called a "guest house") on properties within the county; and

WHEREAS, San Juan County lawfully allowed the construction of a guest house or freestanding accessory dwelling unit prior to the construction of the principal residence; and

WHEREAS, several property owners, in reliance upon the intended sequence of development, planned to construct a principal residence after constructing a freestanding accessory dwelling or guest house, but did not file a completed application for a building permit prior to November 30,2000; and

WHEREAS, On November 30,2000, the Growth Management Hearings Board issued an Order which invalidated rules allowing the construction of new freestanding accessory dwelling units or detached "guest houses;" and

WHEREAS, on April 6, 2001, the Growth Management Hearings Board issued a Clarifying Order which explained that the order of November 30, 2000 did not apply to applications for a principal residence on properties where a freestanding accessory dwelling unit had already been constructed or otherwise "vested" under the vesting rules of the State of Washington; and

WHEREAS, after April 6, 2001 and before July 25,2005, San Juan County, in reliance upon its understanding of the meaning and intent of the April 6, 2001 Order of the Growth Board, allowed the construction of a principal residence for certain landowners in the unique situation where an owner had built a bona fide guest house before November 30,2000;and

WHEREAS, on July 25,2005, the Growth Management Hearings Board explained that the April 6, 2001 and the ApriI1?, 2003 Order of the Growth Board only carved out an exception based upon the statutory exception for vested rights; and

WHEREAS, in the July 25, 2005 Order, the Growth Board said that it does "not render an opinion on the question of which applications for guest houses are subject to the vested rights doctrine"; and

WHEREAS, San Juan County Council desire to have an orderly and fair manner to assure that people who within a reasonable amount of time did reasonably rely upon County laws, policies and regulations to develop their property in a manner that allows them to fulfill those plans to the extent that those plans were backed by investment in the property and actual construction of a bona fide guest house prior to the construction of a principal residence; and

WHEREAS, the required 60-day notice of intent to adopt ordinance changes was provided to the Washington Department of Community, Trade, and Economic Development; and

WHEREAS, an environmental checklist was prepared evaluating potential environmental effects of this Ordinance, a notice of Determination of Non-significance was published, and notice was provided to federal, state and local agencies in accordance with San Juan County Code 18.80.050 and WAC 197-11-340; and

WHEREAS, copies of this Ordinance were made available to the public in accordance with RCW 36.32.120; and

WHEREAS, a duly advertised public hearing was held by the San Juan County Planning Commission on April 26, 2006, at which public testimony was heard, and the Commission forwarded its report, findings and recommendations on the proposed ordinance to the County Council; and,

WHEREAS, the San Juan County Council held a duly advertised public hearing on _ ,2006, and after consideration of the whole record, finds that it is appropriate and a benefit to the health, safety and public welfare to adopt rules determining the rules to apply to the construction of a principal dwelling unit on those properties where a freestanding accessory dwelling exists; and

WHEREAS, the proposed ordinance is consistent with the Comprehensive Plan;

NOW THEREFORE, BE IT ORDAINED:

Section 1. Authority. This ordinance is adopted pursuant Chapter 36.70 and RCW 19.27.095. This ordinance is intended to establish the rules to apply to the construction of a principal residence on those parcels where a freestanding accessory dwelling has already been constructed on the property. This ordinance confirms rules that have already been adopted, and is not intended to establish new official controls.

those properties that meet both of the following criteria for which the landowner has the burden of proving that a property is eligible.

1. Properties for which a complete building permit for a freestanding accessory dwelling unit (then called a "guest house" and hereafter called a "freestanding accessory dwelling unit") with a living area that did not exceed 1000 square feet was submitted after November 30, 1991 and before November 30,2000. An accessory dwelling unit or guest house for which a building permit application was submitted before November 30, 1991 or after November 30, 2000 do not qualify under this criteria.

2. Properties for which at least one of the owners on the date of submission of a completed application for a principal residence was in continuous ownership of said property from July 25, 2005.
B. Rules to Apply to the Construction of the Principal Residence
1. Only for those properties described in Section 2, A, 1. and 2., above, a detached principal residence is an allowed use provided, that the following rules are applied to the review of the application for the principal residence:
a. The existing freestanding accessory dwelling unit as constructed does not exceed 1,000 square feet in living area.
b. The existing freestanding accessory dwelling unit and the proposed principal residence shall be served by the same driveway.
c. The existing freestanding accessory dwelling unit and the proposed principal residence shall be served by the same water supply and sewage disposal system. At least one additional off-street parking space is provided for the existing freestanding accessory dwelling unit in addition to the parking required for the proposed principal residence.
d. The existing freestanding accessory dwelling unit and the proposed principal residence must be owned by the same person.
e. If the existing freestanding accessory dwelling unit is in the shoreline within 200 feet of the ordinary high water mark the freestanding accessory dwelling unit must be no taller than 16 feet above existing grade or taller than 28 feet above the existing grade for a two story structure of which no single floor exceeds 1,000 square feet.
2. The principal residence shall be constructed by applying the building codes and regulations except those pertaining to accessory dwelling units in effect on the date of the complete application for the principal residence is submitted.

Section 3 Rental. Subsequent to the date of submission of an application for a principal residence pursuant to this ordinance, the freestanding accessory dwelling unit as well as the principal residence may not be rented or leased for periods of less than thirty (30) days, which shall be memorialized by a notice to title.

Section 4. Severability. If any provision of this ordinance or its application to any person is held invalid, remainder of this ordinance or the application to other persons or circumstances shall not be affected.
Section 5. Effective Date. This ordinance shall take effect ten days after adoption by
the County Council.

Section 6. Duration. This Ordinance expires five years after the date hereof, except notices to title pursuant to Section 3., shall survive as a pem1anent restriction on the property.
Section 7. Codification. This ordinance is intended to expire in five years, therefore
-it will not be codified.

DONE THIS day of 2006
COUNTY COUNCIL
SAN JUAN COUNTY, WASHINGTON
ATTEST: Si A. Stephens, Auditor and Ex-Officio Clerk of the Council
Alan Lichter, Chair District 4
By: _
Carolyn Morrison - Interim Clerk Date:
Bob Myhr, Vice Chair District 6
REVIEWED BY COUNTY ADMINISTRATOR PRO- TEM
Kevin M. M. Ranker, Member District 1
Date:
APPROVED AS TO FORM ONLY RANDALLK.GAYLORD