09/14/2005: "BOCC Ignores PA Advice, Stays Guesthouse lawsuit"
Gaylord States His Case For The Court System
After the Comprehensive Plan, and the rules and regulations that enforce it were sent to the GMB (Growth Management Board) for their approval, the portion of the plan that controlled and regulated guesthouse construction was appealed by the Friends (Friends of the San Juans), who argued that the regulations were inadequate. It is has been the contention by the Friends that the population density in SJ County could be doubled under the current regulations.
The GMB told the County they must do a comprehensive study to show what the impacts of allowing guest houses would be, and how any negative impacts would be mitigated. A study was done by the Planning Department that showed, among other things, that based on a review of other communities in the country that allowed guest houses, that the density did not -in fact- double, and impacts would not be contrary to the demands of the GMB. The work submitted by the County to the GMB was not sufficient to satisfy the demands of the GMB, or the appeals by the Friends.
As a result, the BOCC (Board of County Commissioners) went to court to state their case, and was ruled against at the Superior Court level. The County then appealed the lower court ruling to the Court of Appeals. The case has now been presented, and all parities have been waiting for the Court's decision. In the meantime the Friends have been pushing to have the County sit down in executive session with them and come to an agreement that would negate the need for a Court order.
While executive sessions are conducted in secret, the fact that the County and the Friends have been having meetings on a proposal by the Friends is no secret. Lynn Bahrych told The Guardian that the Friends had sent a proposal to the BOCC last April, but had not received a response until two weeks ago, when the former Executive Director of the Friends, and now County Commissioner, Kevin Ranker, made some notes on the proposal, sent it off to Commissioner Lichter, and others, and opened up the dialog on a possibly settlement.
Last Tuesday (9-6-05) the BOCC agenda included an item at 2:30 P.M. that simply stated "Accessory Dwelling Unit Proposal" At the appointed time Ranker acknowledged that 70% of the voting public had supported allowing guesthouses in SJ County, and told the public in attendance that he had decided the time had come to settle the matter outside of the court system, and that to that end was willing to accept the proposal from the Friends as a starting point for settlement. It quickly became apparent that Commissioner Lichter was on the same page as Ranker, but the public had no idea what the proposal was, or how it might effect them, either in a positive or a negative way, since no copies were presented, and of course the discussion up to that point had been held in private.
Ranker explained that he would like the BOCC "to go back to the Growth Management Board with the Friends to ask for compliance" based on the proposal from the Friends, and would like to withdraw the County case from the Court of Appeals; or at least ask the Court to stop the process until the BOCC and Friends worked out all the details of a settlement. The Friends wanted to go a step further and ask the Court to dismiss the lawsuit with prejudice, which would prevent the County from any possible future legal action on the matter -for any reason.
Prosecuting Attorney Randy Gaylord was asked to addressed the issue, and began by explaining what the process had been up to this point, and expressed in no uncertain terms, that as the lawyer for the BOCC, it was his legal opinion that it would be a mistake for the Board to stop the legal process. He explained that to enter into the proposed settlement would "put the County into a box" and later stated "You are going into a trap that you will never be able to get out of". He pointed out that recent court rulings in other cases show the law and the findings by the GMB are dynamic, and are changing in ways that may be helpful to the County to allow guesthouses as allowed by the current county regulations. Toward the end of his time, Gaylord also expressed his view that "parts of the proposal by the Friends are contrary to law".
Ranker told Gaylord that he disagreed with his legal opinions, and that the BOCC should settle with the Friends. Commissioner Lichter felt that rather than withdrawing from the suit, the County should ask the Court to hold up on their decision for 180 days while the Friends proposal is reviewed.
In the end the Board passed a motion to use the Friends proposal as a basis for a settlement, and to ask the Friends to join the BOCC in asking the Court of Appeals to stay the case for 180 days. Ranker then turned to Gaylord and informed him that he had been in contact with a clerk at the Court of Appeals and had a fax number and some forms that might be helpful to allow Gaylord to quickly ask for the stay. The County's Prosecuting Attorney did not respond to Rankers comment.
The public will have an opportunity to now review the settlement proposal, and when it is sent to the Planning Commission for their review and possible recommendations the public will be allow to comment. Any recommendations from the Planning Commission will be forwarded to the BOCC for action, and the public will once again have be able to comment at that time.
So will this action by the Board, against the advice of their legal counsel, finally resolve the guesthouse issue? No, but it does open up the process all over again, and will even allow for new appeals to be filed. There is also the question of will the Court of Appeals play ball with the BOCC and Friends, or will they decide the case needs to be resolved in the courts, and deny the request for the stay of a decision. The lid may have been taken off of the can.