07/28/2007: "Judge Rules Against CC On Land Division Appeal"

San Juan County has lost a court case on how to define parcel size in land use decisions involving applications for subdivision. The ruling against SJC by Whatcom County Judge Steven Mura means that the County can no longer have it both ways when determining the size of property, by using one way for tax purposes, and another way for land use decisions.

The Island Guardian reported that in May of 2006 Assessor Paul Dossett informed the then three member County Council that "Property owners need the confidence that SJC is consistent in determine Simple Land Division acreage..". Dossett asked the Council to "Please change the UDC (Ed: the code that controls land use) to allow "equity, uniformity, and consistency" in acreage determinations.

The County Council took up the issue in September of the same year, and with Councilman Ranker abstaining from the vote, Myhr and Lichter voted to not be consistent as had been requested by Dossett, and continue to use two systems to determine property size.

The law suit resulted when the three member County Council upheld a planning department decision by finding that Hearing Examiner William H. Nielsen was correct when he had turned down an appeal by Richard Durhack, Virginia Norgaard and Neva Durhack of their rejected application by the planning department to divide a 20 acre parcel into two 10 acre parcels

At the time of the Council vote to uphold the denial, Councilman Ranker was willing to pursue obtaining additional information on the potential impacts of the two systems, and as a result he again abstained from voting for the motion made by Myhr, and seconded by Lichter, to turn down the Durhack request.

The two ways the County uses to determine the size of property is, in simple terms, the old way and the new way. The old way (use of optics and lasers) did not take into account the curvature of the earth, and the new way (GIS, i.e.: satellites) does.

At the time of the denial, County Prosecutor Randy Gaylord said County Councilman Myhr and Lichter made the decision "because the parcel to be divided was not 20 acres, but just 19.1, as measured by the county's GIS system”. After Thursday’s court decision, Gaylord was quoted as stating “This ruling demonstrates that even mathematics and surveys are open to judicial interpretation,”

The problem however, is that when the Comprehensive Plan was passed, the old system -the system still used to assess property- was used to set land designations. As a result, property owners were told, and the official maps and tax bills indicated, what the size of a property was.

In an official press release the County noted that “Judge Mura said state law requires that a uniform method of measurement be used statewide, and uniformity requires the County to allow property owners to rely on the presumptive fractional acreages resulting from the original federal land surveys as long as a modern survey has not been recorded. Judge Mura’s ruling means that, under state law, a landowner whose deed is written as a fraction of a section can rely on the presumption that the fraction is based on a full 640 acres whether that is accurate or not, unless a new survey has been recorded.

Gaylord is also quoted as saying “It is counterintuitive to say that the County Assessor knows a parcel to be 19.1 acres in size but the County Planner must presume the parcel is 20 acres”; which one could take as a statement in support of Paul Dossett’s request of the Council back in May that the regulations be changed to make the system consistent and fair.

It is expected the County Council will review the ruling with Gaylord. Gaylord is quoted in the press release as stating that “Judge Mura said at the oral argument that he expected the County may want to appeal his decision, and we will certainly discuss that option with the County Council.”