08/21/2006: "Final Outcome On ADUs Still In Question"
To the Editor:
The Western Washington Growth Management Hearings Board issued a decision Friday lifting its finding of invalidity based upon the new ADU ordinance enacted in June. The Board has yet to rule whether that new ordinance or the so called "vesting" ordinance enacted shortly thereafter actually meet the requirements of the Growth Management Act. The Growth Board hearing on the ADU ordinance is currently scheduled for early November.
The County appealed from the Board's original decision and, until late 2005, continued to defend the right of property owners to have guest houses. That appeal is now pending before the Court of Appeals in Tacoma, which has been poised to rule for more than a year and the stay expires at the end of this month. The County Attorney recently informed the Court of Appeals that the "lifting of invalidity" action would not cause the issue under appeal to be "moot" and urged the County Council to pursue a final Appeals Court decision. Clallam County and several "friends of the court" agree and urged the court to issue a decision.
Therefore, the question of whether all property owners with land in designated "rural" or "resource" areas could be allowed to have a detached guesthouse as well as a principal residence on lots smaller than 10 acres remains unanswered by the courts.
When the County ordinance was originally challenged by the Friends of the San Juans they argued that allowing ADUs on all rural parcels would effectively double the density. The County took the position that only 16% of all developed parcels have historically opted to construct ADUs. The Growth Board has already decided that the County can allow all rural parcels to have an attached or internal ADU. On Friday the Board went a step further by allowing the County to issue permits for detached ADUs provided they don't exceed 12% of the total number of building permits issued for the prior year, In effect the Growth Board has apparently rejected the original argument that allowing ADUs effectively doubles the density provided that the County places a 12% annual limit only on the number of detached ADUs that are allowed.
The Growth Board Order lifting invalidity was clearly based on the fact that the new ordinance places a "strict limit on the number of permits each year for detached ADUs". The numerous other restrictions on building location, setbacks, parcel size, distance from the main house, etc were not sited in the order as reasons for the Board's decision to lift invalidity. The Board will be considering those issues and others raised by petitioners at the November hearing.
The new ordinance is still problematical for many property owners who will be unable to meet one or more of the many new requirements and limitations for construction of a detached ADU. Numerous islanders have appeals pending before the Board regarding the new ordinance, and the Board's decision of last week will likely be appealed to Superior Court. In addition, some islanders plan to appeal the so-called "vesting" ordinance, because it does not preserve all of the rights that vested when they obtained a permit to build their guesthouse.
Because the Board's decision was based on the very narrow legal issue of continued "substantial interference" with GMA we will have to wait for the results of the November hearing to clarify whether or not the new ordinance will eventually be found fully compliant with the Growth Management Act.
Doe Bay, Orcas