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08/02/2006: "Gaylord To Council: "That Would Be An Illegal Act""

In what has become the norm, the County Council (CC) and Prosecutor Randy Gaylord were once again at odds this week as to what the proper interpretation of law should be on the so-called "vesting ordinance". Previous story The CC recently passed an ordinance that was originally to be an attempt to try and bring some relief to those that have been trapped from building a main house if they had already built a guest house. The hold on issuing any permits in those cases, was the result of the on-going legal battle between the CC and the Friends of The San Juans, on the one side, and the Growth Management Hearings Board (GMB) on the other side; and a number of citizens that were somewhere in the middle of the fight.

Gaylord had repeatedly stated that the CC went beyond what is required to write a "venting ordinance" when they included new land use regulations -and some new shoreline regulations- in the ordinance. This, according to Gaylord, triggered a requirement that the ordinance be fired off to state agencies for review. The Council has been strongly opposed to letting the State review the ordinance, and at the last meeting things came to a head when Councilman Ranker made it clear that he intended to introduce a motion to instruct the Prosecuting Attorney to not submit the ordinance to the GMHB.


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The discussion became a little heated as Gaylord attempted to make the Council understand the legal distinctions that define when an ordinance must be sent for review, and when it need not. Ranker said that it was his belief that "The GMB does not have any oversight over this issue", and stated that "we should not waste anymore time on this". Ranker said he had discussed the issue with other attorneys, and they did not agree with Gaylord's position. He then gave an example of language from the GMB 2005 Compliance Order that he believed indicated it was not necessary to have the ordinance sent to the Board for their review. Gaylord responded that the passage quoted by Ranker was not on-point, and that RCW [36.70A.302(6) and (7)] controlled when he was required to send an ordinance to the GMB.

Ranker asked Gaylord if he had the legal prerogative to decide if he could disregard a directive from the Council. Gaylord said that he was required to follow the law.

Councilman Myhr asked Gaylord if "In your opinion does the GMB have jurisdiction on this issue"? Gaylord had previously informed the Council that if further research into the law convinced him that he had no legal choice but to send the ordinance to the GMB, he could not follow the demand by the Council to not send it off, and at the Tuesday meeting Gaylord indicated the after further research he had determined that he had no choice but to submit the ordinance to the GMB. Myhr then asked Gaylord if "we can tell the GMB it is the County view that the ordinance does not require the GMB review…can you submit it in the best possible light". Gaylord said you should not be concerned about that, that he has always presented the County's position; to which Chairman Lichter told Gaylord that "I do have concerns about this".

Kevin Ranker then said he was prepared to instruct the Prosecuting Attorney to not submit the ordinance to the GMB. Gaylord informed Ranker that "In my opinion that would be an illegal act"!. Ranker then made the motion, Lichter turned to Myhr and asked for a second. Myhr quietly said, "I am not going to second that". Lichter made the second, the vote was called, and Lichter and Ranker voted to approve the motion. After the vote Myhr again spoke up, directing his comment to the Council Clerk that "I did not vote for the motion". Gaylord informed the Council that he would disregard the motion, and Lichter responded "So noted".