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10/19/2006: "Court to Review County's Dual Methods to Determine Parcel Size"

A lawsuit by long time property owners Richard Durhack, Virginia Norgaard and Neva Durhack .has been filed against San Juan County. The suit results from the County Council's decision to retain a method of calculating the size of property by two different methods: one method for land use decisions, and another method for property tax decisions. ( Read background reporting on the " Aliquot System")

Durhack and Norgaard had appeared before the Council to ask that they instruct CD&PD (Community Development & Planning Department) to continue to use the same system to determine the size of their property that had been used when the property was originally divided. The problem facing the Durhacks', and others in the county, was finding out that property that had been labeled as being such-and-such a size, and accepted as such by the County for land use purposes, was in some cases now found by modern surveying methods and equipment that used GIS (Geographic Information Systems) satellites, to be less (or more) than had been assumed by all parties when land use designations and regulations had been applied to the properties.

For those financially impacted by the new information, it seemed unfair for the County to say they will use the old method (e.g., it is okay to be less for Open Space tax relief) when it benefits the County, but use the new method to prevent further division of property. But even in the face of the fact that county planning had assumed and anticipated that the properties in question could be divided, and that eventuality had been factored in by the County's Comprehensive long range planning, Myhr and Lichter did not appear to be impressed by the "fairness" question raised by staff, and by Assessor Paul Dossett.



According to County Prosecutor Gaylord the problem arose when a "County planner working on the application checked with the County assessor and learned the assessor measured the parcel size as 19.1 acres. Because the land use area required 10 acres per parcel, the application was denied. On August 30, 2006, Hearing Examiner William H. Nielsen upheld the denial on the grounds that the parcels created would be smaller than the minimum required when measured by the procedure specified in the County code."

Randy Gaylord, who has been charged with defending the County against the law suit, summed up the problem by stating that the suit resulted from "the decision to deny a property owner a division of land into two 10-acre parcels because the parcel to be divided was not 20 acres, but just 19.1, as measured by the county's GIS system.

When Mr. Durhack appeared before the Council there was testimony from county staff and the County Assessor that because the question before them was simply a matter of fairness, they advised that the same method be used for land use decisions that was previously used. They were also told that very few parcels would be effected. Councilman Ranker was willing to pursue obtaining additional information on the potential impacts of the two systems, and as a result he abstained from voting for a motion made by Myhr, and seconded by Lichter, to turn down the Durhack request.

In a press release, the Prosecutor's office stated "The issue that the lawsuit will present is whether the County properly used the assessor's measurement of parcel size using the GIS parcel map. The challengers claim the County's decision was inconsistent with prior practice and is not required by state law or local ordinances', and points out that "The County had the ability to choose the method of measuring parcel size, and it chose the method using the GIS parcel map when the code was adopted in 1998," and added "Although, there is an alternative method that may be more favorable, that fact alone does not mean that the method used by the County was wrong."

The hearing on the merits of the case will be held in Whatcom County Superior Court in the beginning of next year; which gives other parties a chance to jump into the fight -on either side.