Island Guardian

Friday, September 29th

Protecting Civil Liberties while Combating Terrorism

The San Juan Island Outreach Group of the American Civil Liberties Union of Washington will sponsor an educational forum entitled, "Protecting Civil Liberties while Combating Terrorism", at The Grange Hall in Friday Harbor on October 1, 2006 from 3:00 to 5:00 P.M.

This free, public forum is intended to foster a better understanding of the need to protect our civil liberties guaranteed by the Bill of Rights by the United States Constitution while combating the threats of terrorism. The forum is co-sponsored by the San Juan Island Group 607 of Amnesty International. Contact Roger deRoos at 378-6323 for additional information.

The speakers will be Mr. Michael Schein, a Seattle attorney and ACLU volunteer, and Mr. John McKay, the United States Attorney for the Western District of Washington.
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Thursday, September 28th

CC Wants Priority Loading for Livestock on Ferries

The CC (County Council) has asked the WSF (Wa State Ferries) to allow the transportation of livestock to have priority loading on the San Juan county ferry runs. Jayne Davis, representing WSF, recently came before the Council to answer questions from the CC, and hear the Council member's concerns about trucks with livestock not being able to reach their destinations in a timely fashion, and what the negative effects of this have been.

Two problems that quickly became apparent during the discussion, were the issues of existing regulations and policies that control priority loading, and the question of a definition of "livestock" and "perishable goods", and "commercial". The question was asked, "Should a farmer with a few baskets of produce on his way to sell them at a Farmer's Market be entitled to priority loading?". Davis pointed out that what the Council had in mind would require changes to be made at the legislative level, and suggested that the Council send a proposal for changes to the WA State Transportation Commission, as this would be the required first step toward making changes to state law.

At the end of the meeting, there was a general agreement that a proposal would be drafted by an ad-hock committee, possibly consisting of Public Works, the County Administrator, and the County Extension Agent, all of whom would work with the Ferry Advisory Committee to put together a draft proposal within six weeks. The draft would then be presented to the Council, and to the public, for review and comment, prior to sending it to the State for their review.

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15 ADU Permits To Be Issued On Monday

The San Juan County Department of Community Development & Planning will accept applications for a limited number of Detached Accessory Dwelling Units (ADU's) on Monday, Oct 2. The "by phone only" process is to be used to determine who will have the right to construct a guest house that meets the new requirements adopted by the County Council.

Applications made on October 2, 2006, will be accepted ONLY by phone at (360) - 370-7607 between the hours of 9 am PT and noon PT, and will be accepted on a first come – first serve basis subject to procedures established by the Administrator. Initial Applications after October 2, 2006, can be filed in person at the Department office.

A copy of the Procedures is available at the Department web site, http://www.co.san-juan.wa.us/cdp/ADU.asp , and a copy of the Application Form can also be obtained by download, http://www.co.san-juan.wa.us/cdp/ADU_AppForm.pdf or in the Department office at 135 Rhone Street, Friday Harbor

Only one application will be accepted per call.

Applicants must provide the property tax parcel number and will be given an assigned number based on the sequence in which calls are received. The first thirteen (13) new and two (2) conversion assigned numbers, meeting all of criteria of Ordinance. No. 7 – 2006 will enable the applicant to submit a complete building application on the identified parcel to the Department no later than December 1, 2006.

For further information please refer to the procedures document, or you may contact Holly Mercier at 370-7587.

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Thursday, September 21st

SJC Stormwater Steering Committees Final Meeting

The San Juan County Stormwater Steering Committee will hold its fifth and last meeting Friday, September 22nd from 9:00 A.M. – 5:00 P.M. at the Orcas Island Eastsound Fire Station. At this meeting the committee will be finalizing its recommendation to the County Council on a mission statement, goals, and a rate structure for the newly formed utility. The committee will conclude its work by forwarding a recommendation letter to the County Council.

The Steering Committee was formed to develop recommendations on the San Juan County Stormwater Utility's mission statement and goals, and rate structure. Ten people who represent a diverse range of views are participating on the steering committee.

The public is invited to attend this meeting to share their views and provide their comments on the work committee is undertaking.

For the meeting locations and times, and other information about the steering committee and the stormwater utility please call Matt Zybas at 360-370-0522 or visit: " STORMWATER"

AGENDA for the meeting Follows below

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Tuesday, September 12th

Court Agrees To Drop County ADU Case

The Washington Court of Appeals has honored the County Council (CC) request to not rule on the question of ADUs in SJC. As previously reported in The Island Guardian, the CC had hoped to avoid a ruling by the Court on the appeal originally filed by County Commissioners Evans, Miller and Nielsen. The appeal asked the Court to allow the County to continue operating under the original set of regulations that both limited and controlled the construction of guest houses in the county, but unlike the new regulations, allowed them to be free standing at a far distance from a main house, while allowing them to be constructed on rural and farm-forest lands.

With the dropping of the case by the Court, and the declining to rule by the Growth Management Board on the new regulations contained in the "Vesting" ordinance, the Council and the Friends of the San Juans have pretty much won the Battle of the Little Houses. Except…some of those impacted by the dropping of the old rules and the imposing of the new, may still ask the lower courts to take a look at how all of this was done, and did it follow proper procedures. The saga of The Little Houses may not be over quite yet.

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GMB Declines To Rule On Vesting Ord

The Western Washington Growth Management Hearings Board (GMB) has reviewed the recently passed ordinance by the County Council (CC), and found they have no jurisdiction. The ordinance was passed by the CC in an attempt to address "vesting" issues of guest houses.

Referring to the ordinance as a "Rules Ordinance", the GMB has now ruled that "The Rules Ordinance clarifies the extent to which rights vested under San Juan County rules to develop principal residences where lawful ADUs were already in place. The Ordinance is not a comprehensive plan or development regulation or does not amend a comprehensive plan or development regulation. For these reasons, the Board concludes it has no jurisdiction over (the) Ordinance".

The passing of the ordinance resulted from the ban by the CC on construction of an accessory dwelling unit (ADU) -also called a "guest house"- even if an ADU had previously been legally constructed on a property. The problem for individual citizens arose for those property owners who had legally build a guest house, but as a result of the current ban on guest houses, except when constructed under a new set of regulations not in effect previously, were now trapped from building their main residence unless it met the new regulations of the "Rules Ordinance". For many, this was not practical, or in some cases, practically impossible due to site conditions, but in any case was not what they had originally been told they could do.

The concern for the CC was that the ordinance designed to address the problem would not be allowed by the GMB. Because of this concern, the CC decided that it would be best to simply pass the ordinance, hold a public hearing, wait out the appeal period, and then -as they say, "move on", without sending the ordinance to the State for review.

Randy Gaylord told the CC he was required by law to send it to the State for their review. The CC expressed it's concern that if the State reviewed it and found fault with it, this could present problems. Gaylord maintained the only proper way to find out was to send it to them and let them decide; and that it was opinion that he was required by law to do so. The CC discussed it, and it was decided by Lichter and Ranker to pass a motion (Myhr voted against it) instructing Gaylord to not send it off to the State. Gaylord told the CC that he had no choice, and regardless of the motion, would send it to the State; he would, however, put it in the "best light" that he could. Previous story

A number of citizens have expressed objections to the ordinance as not going far enough in responding to all of those who have been trapped by the ADU ban, and going too far by passing new regulations that are not necessary, or required, by the GMB to bring the County into compliance, or to solve the vesting issue. As a result, a number of appeals have been filed, and more legal action may be taken in the courts to correct what some are calling an over-reaching by the County Council to impose new regulations outside of the normal process. Previous story

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Appeals & Court Action Likely On ADUs

Citing concerns about the recent ruling by the Growth Management Board (GMB), and the decision by the County Council (CC) to attempt to withdraw the County appeal in the Court of Appeals (Previous story) , some of those impacted by the recent actions told the Island Guardian that they do not plan to just shake their collective heads and give up on their plans and dreams.

Peg Manning of Orcas Island is one of those impacted by both actions, and she stated that the CC action to withdraw the appeal had been anticipated, and that she and others will "file a Superior Court appeal from the Board decision last Friday" that will oppose the dismissal of the case at the Court of Appeals. An interesting aspect of the case is the interest that some other counties have shown in the outcome of the SJ appeals case, hoping that if, and when, the Court of Appeals ruled, it would also give them some guidance in which way to go with their own regulations. If the recent decision by the SJ Council to ask the Court to not rule on the appeal is agreed to by the Court, that guidance will not be forth coming -at least not in this case.

Manning believes that the "only way for overwhelming majority of homeowners to get relief is through the longstanding Court of Appeals case; very few people can qualify under the overly restrictive new ordinance or vesting ordinance, not to mention the new "stealth" policies issued without discussion by the Planning Department".

As for the GMB ruling last Friday on the so-called "Vesting Ordinance", Manning and others plan to continue that fight as well. Originally a hearing was scheduled by the Board in October to hear arguments from those who have, or will, appeal the Ordinance, but that date has now been moved up to January the 5th.

The later date may have some effect on the Court of Appeals deciding if they will simply drop the County appeal, as requested by the CC, or decide that by going forward and releasing a ruling, it may have State wide significance in giving guidance to not only San Juan County, but also to other state governments, now and in the future.

In the mean time, both sides are gearing up for argument in the Courts, and before the Growth Management Board.

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Council Moves to Withdraw Appeal Of ADU Case

The County Council has reversed County direction and instructed the Prosecuting Attorney's office to withdraw the appeal of the Accessory Dwelling Unit case from the Court of Appeals. Chairman Lichter and Councilman Myhr made the decision in an executive session that was held near the end of the regular Council meeting on Tuesday. Councilman Ranker had attended the Tuesday meeting, but indicated to Lichter that he was not feeling well, and did not attend the executive session.

The appeal had been filed by former County Commissioners Evans, Miller, and Neilson, and had asked the Court of Appeals to allow the County to continue to allow detached ADUs ("guest houses"), as long as they met the limiting controls put on them by the county land use codes.

There has not been any indication at the staff meetings or in the regular Council meetings that the Council might vote to withdraw the appeal, and it is not known if somehow Ranker had prior knowledge of the upcoming executive session, but in any case the move by the Council comes as no surprise, given that the current County Council members have continually asked the Court to hold-off on giving a ruling, as they attempted to craft a new policy and set of regulation on ADUs that is more restrictive than the one the Court of Appeals had been asked to rule on.

The new ADU regulations were approved last Friday, by the very same Growth Management Board (GMB) that had found the old regulations to be in compliance, but after the Friends of the San Juans (Councilman Ranker was the Executive Director of the Friends at the time) appealed the regulations to them, the GMB found them to be out of compliance.

The approval of the new regulations will not take effect for a few weeks, as there is still an appeal period, and it is expected that a number of citizens will ask a Superior Court to step in and review the GMB recent ruling on the new regulations. At the Tuesday Council meeting Chairman Lichter asked Assistant Prosecutor Cameron Carter if it was possible that Superior Court would put a "stay" on the GMB ruling that could stop the new regulations from going into effect. Carter replied that he had not researched the subject, and in any case did not know what any of the appeals would state, since none have been filed at this time. At the present time it appears that there may be as many as eight appeals, and some, or all of them, may be combined. (Previous story)

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ADUs Questions Still Remain

Last Friday the Growth Management Board (GMB) ruled for the County Council (CC) when it found the County is no longer non-compliant when it comes to where, and how many, Accessory Dwelling Units (ADUs), or "Guest Houses" can be permitted in San Juan County. Previous story & copy of OrderOnly problem is, there is a raft of legal questions still floating around that either the Courts or the GMA have yet to give guidance to, and there are folks on both sides that are arguing about where the high ground is.

Former SJC Planning Commissioner Jim Nelson states in a Letter to the Editor that the lifting of invalidity by the GMB has left a number of questions unanswered, such as : Can a property owner of rural or resource land have a detached guesthouse and a main house, if they own less than 10 acres? Peg Manning, an attorney and land owner on Orcas stated that "The Board somehow ruled that the new ordinance was enough to lift invalidity but reserved the question of whether it was compliant itself. "

Former County Commissioner John Evans has a submitted a Guest Editorial on the subject, and what it can mean to the San Juan County in terms of both intended. and unintended. Consequences.

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Town & County Agree On Capron Funds Split

Both the Town & County Councils have signed an "Interlocal Agreement" that provides for a return to the previous percentage split system used to split the Capron funds between the Town and the County. Under the agreement, the Town will once again receive a fixed percentage of 10% to the Town, and 90% retained by the County.

As most citizens in San Juan County know, the so-called Capron funds are fuel tax generated funds that are collected by the State, and then returned to San Juan County to be used to offset the expense of county roads. The County and the Town receive these funds, because the money that the State Collects is ostensibly to be used for state highways, and since we have none in San Juan County, the money is returned to the County, "and any incorporated city or town within the county based on the percentage of assessed valuation.."

A problem arose in the distribution system due to the four year valuation cycle, which at the end of the cycle sometimes resulted in the Town receiving too much money. The new system will allow a "greater predictability in the budgeting process" since it will not be "subject to the distribution anomalies established in the four year valuation cycle".

There is a clause in the agreement that the "Capron Funds shall be strictly used and accounted for in the development and maintenance of p

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Council To Decide Who May Bypass On Appeal

When the Freeholders reviewed the duties and authority of the former Board of County Commissioners (BOCC), they decided that if someone believes they have been improperly denied an application by the Hearing Examiner, and as a result, wishes to file an appeal, they "may choose to bypass review by the Legislative Body and seek direct review with the court or other tribunal as provided by law".

Under the old BOCC rules, the unhappy applicant (the "appellant") had to first make his case to the BOCC, and then could go on to Court. Under the Charter, the appellant had the choice of going to the County Council (CC), or going to Court. This raised the question in the minds of some, including the CC, "What happens when there is more than one party involved?" Can one person exercise his right to bypass the CC by going to Court result in the forcing of others to be denied the right to have the case first heard by the CC? The answer from the Prosecuting Attorney's office was "Yes"

There have been a number of instances when the CC was not very happy when they reviewed their authority under the Charter, only to find they were no longer allowed the power they had once possessed; and not being able to sit in judgment of the decisions of the Hearing Examiner -Their Hearing Examiner-, was clearly one of those instances. All three Councilman expressed their concern that their "local knowledge" made their opinion relevant to having the authority to uphold, or deny, an appeal of HE decisions. Knowledge that a Judge just may not posses. But that was, some of the freeholders told the Council, exactly one of the reasons the Freeholders decided to let someone bypass them; pointing out that some appellants may have concerns that a Council could decide an appeal not on a point of law, but on a point of view, of how things should be, and not on what the law allows,

The Council was not going to go gently into the night on this issue. They asked Prosecutor Randy Gaylord to research the issue, and see if there was some way around it. Gaylord came back with a small White Paper that laid out the various relevant laws that dealt with the "powers, duties and procedures of the hearing examiner", and a stated goal to "adopt procedures for the review of hearing examiner decisions that are consistent with the charter and state law." (Previous story)

Gaylord came up with a plan that was based on a portion of the very same exact language in the Charter that said an appellant could bypass the CC. At the end of that troublesome sentence (quoted above), it states "…as provided by law". Gaylord told the Council the solution to their problem was simple: The Council need only to follow the Charter demand that they adopt an ordinance that contains "procedures for the discretionary review of the decisions of the hearing examiner" and that those "rules" can allow the creation of a classification system for discretionary review A system that will effectively be a table of two columns, one will be a list of those HE decisions (Class "A") that will first go to the Council for review, and a second list (Class "B") that go directly to Court.

The Council liked the concept, and will have a public hearing on a classification list that will determine which appeals go to Court, and which go to the Council.

The draft list for Class A are those HE "Decisions that have the effect of approving, denying or rescinding an application for the following types of permits: Conditional Use; Shoreline; Variance; Subdivisions; Simple Land Divisions;" and the "Revision of alteration of any of the above types of permits."

The draft list for Class B (that go to Court) are "Decisions that have the effect of approving, denying or rescinding a permit: Shoreline enforcement; SEPA; Decision involving interpretations;" and "Revision or alteration of any of the above type of permits".

The Council was unable to decide where Clearing and grading permits should go, even after testimony from the Prosecuting Attorney and both the County Administrator and the Director of Community Development & Planning recommended that it should remain -as suggested by Gaylord- in Class B. The Council wanted to review that one as well, but agreed that additional information would be obtained and evaluated prior to making a decision.

A public hearing will be held on the proposed ordinance to receive public comment and recommendations.

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Council To Move To Carlson Building

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(County Council meets at Islanders Bank to discuss space needs)

Perhaps having to once again surrender the County Council meeting room to District Court for a trial, or maybe the elected officials and employees were finally convincing in their arguments, but for whatever reason, the Council finally, and unexpectedly, took action on Tuesday to address the need for new, and more, office space for county government.

In a unanimous vote, the Council decided to move the Council and the County Administrator's offices to the newly acquired Carlson building, and directed the County Administrator to form a committee of county officials to bring a recommendation to the Council, as to who else should move to the new building. Chairman Lichter stated that he was also in favor of Administrator Pete Rose's idea of constructing a new Council Hearing Room that could "serve as a community hub".

With the move, the Council will effectively be returning their meeting room in the courthouse back into a courtroom, which it originally was designed for. Before the addition to the courthouse was made some years ago, both Superior and District Court used what is now called the Council Meeting Room as their courtroom. But even with the construction of the new Courtroom, there has still been a need for a Courtroom dedicated to District Court, for when there are two trials going on at the same time, District Court has been forced to use the Council meeting room. The Council decision means that District Court will also have their old offices back for the Judge and court staff; including a small meeting room that was once the jury meeting room, and now may become one again.

After the vote, the Council received a number of positive comments (and a thank you from their own staff) from the few elected officials who had shown up for an informal meeting of what had been billed on the "Discussion/Other Action Agenda" as item number five: "Space Issues for the Courthouse and Carlson Building", and found a Council willing to forgo any further discussion, and move forward on a move to new quarters. What was not decided at the meeting was to what degree will the Carlson building be remodel, and how much will it cost. Both Councilman Ranker and Myhr had expressed concerns about where the money is to come from, and the need to not waste funds on remodels if the Council later decides to demolish the Carlson building to construct a new administrative building; perhaps in conjunction with the Town of Friday Harbor, or with some other public organization.

The Money Issue
Councilman Ranker told the Council that he would like to begin the process of providing the resources "necessary to produce a worthwhile and efficient facility", but Myhr cautioned that "Throwing out those terms without knowing the details does not satisfy my concerns about fiscal responsibility". Ranker responded that he wanted and update on possible funding sources for future construction, in case the Council commits to a new administrative building. Chairman Lichter suggested another consultant should be hired to conduct a study and advise the Council on future needs, but Ranker said "I am hesitant to spend 20 or 30 K for a consultant", and that he preferred to simply let the County Administrator and the staff decide if a consultant is needed or not.

Administrator Rose listed a number of possible future funding sources, some including voter approval, and some not, such as a new Real Estate Excise Tax (REET), but cautioned the Council they needed to be careful about imposing it without voter approval, since it would raise the cost of real estate. Myhr once again expressed concern by telling the Council that "We need to keep this in perspective. In the last year we have purchased three properties -each costing over a million dollars- that have an effect on our spending abilities".

The Council agreed to continue the discussion at later meetings as they receive reports from County Administrator Pete Rose.

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Gaylord To Council: "That Would Be An Illegal Act"

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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". 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.

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".

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