CARE

Island County Critical Areas Ordinance

Camano Action for a Rural Environment(C.A.R.E.) herein submits its comments to the Board of Island County Commissioners on the proposed compliance with the Western Washington Growth Management Hearings Board decision in Case No. 08-2-0026c. While we appreciate the County’s prompt action in addressing the compliance order, we have some reservations about the wording proposed to address it.  C.A.R.E is satisfied with the language proposed to address the Rural Stewardship Plan monitoring and the 25% buffer increase provisions, however with respect to the reasonable use provisions, C.A.R.E still has some concerns.  In addition, C.A.R.E feels that although the Growth Management Hearings Board did not rule in our favor on the appeal, the issues we raised are still valid and that the Hearings Board ignored some important aspects of our arguments. We also address these at the bottom of our comments and request that the Commissioners reconsider its previous support on these key issues of the ordinance. 

1.   The proposed corrections to the Ordinance, as originally presented to the Planning Commission at its January 27, 2009 hearing were supported by C.A.R.E. However, the Planning Commission made changes to the Ordinance at that hearing.  C.A.R.E is concerned that the definition of Reasonable Use ICC 17.02A.030, has been altered by the Planning Commission such that the original error called out by the Western Washington Growth Management Hearings board is again inserted into the ordinance. The Hearings Board decision makes clear that the default in the language, as proposed in the original Ordinance C-63-08, was that it allowed for uses legally established, but non-conforming with the current zoning code to be considered as a reference to determine whether a proposal qualifies as a reasonable use.  The Hearings Board required the County to correct the language such that only uses that comply with that current zoning code are allowed to be considered for reasonable use.

 The language as proposed in C-130, however, allows incursions into critical areas and their buffers for uses similar to “lawfully established” uses in the vicinity of the proposal which might be grandfathered, non-conforming uses, or even conditional uses.  The proposed ordinance will allow creation of new uses identical to grandfathered non-conforming uses, which are otherwise prohibited, and conditional uses, which would normally undergo stricter review and conditioning than required under the reasonable use process.   17.02A.030 Definitions. . . .Reasonable Use: The logical or rational use of a specific Parcel of land which a personcan be expected to conduct or maintain fairly and appropriately under the specificcircumstances, considering the size of the Lot, the type of Use or Structureproposed and similar Existing or allowed types of Permitted Uses and Structureswithin the same zone and in the general vicinity of the Lot that have already been lawfully established.

 C.A.R.E supports the language originally proposed by the Planning Department, as correction to the definition, which was then amended by the Planning commission. The language originally proposed by the Planning Department to the Planning commission at the hearing on  January 27, 2009, was:

 17.02A.030 Definitions

The problem with the language as proposed by the Planning Commission in C-130-08 is brought to light by a most recent reasonable use permit issued under the new Ordinance.  The County approved a permit (025/09-RUD) on March 23, 2009, to double the size of an existing residential structure to add a closet and additional living quarters, based on “lot coverage” of existing structures within a ¼ mile of the proposal. The incursion was into the already substandard buffer of a Category A wetland, a coastal lagoon. At the time of C.A.R.E.’s appeal to the Growth Management Hearings board, the County argued that its buffers were as protective or more so than the DOE model ordinance, and the WWGMHB agreed.  However, what is the point of protective buffers, if reasonable use can allow for additional incursions into an already substandard buffer, based on what other folks in the neighborhood had, under previous ordinances, when the protections established under the new ordinance were not in existence? This means that critical areas protections will fall to the least common denominator, continuing the legacy of critical area degradation allowed under previous ordinances that did not include BAS. Furthermore, by defining reasonable use as what is “logical or rational”, and based on nearby existing uses, the doctrine of reasonable use, and its origins in the Constitutional prohibition of “regulatory takings,” is expanded from a denial of “all economic use” of a property, to basing the reasonable use on what is currently existing in a neighborhood.  This fails to adequately protect Critical Areas and prevent the slow creep to more and more buffer reductions and critical area incursions.  

2. Even with the corrections required by the WWGMHB, we remain concerned that the definition of Reasonable Use is excessively broad and that the County is opening itself up to numerous court challenges with the reasonable use language, essentially resulting in unlimited incursions into critical areas based on reasonable use.  Defining reasonable use as what is “logical or rational, or which a person can be expected to conduct or maintain fairly and appropriately under the specific circumstances,” opens a legal can of worms in that the definitions of the terms are too subjective. Obvious what is logical or rational to one person, is fair to one person, may not be considered so, and may also be deleterious to critical areas.  This language is not used by any other County; and it will result in a large increase in approvals of reasonable use proposals, rather than ensuring that some use of a property would always be allowed, avoiding a “regulatory takings.”  It will allow repeat incursions into critical areas and their buffers such as in the recently approved permit, where it could be argued, the owners already had a reasonable use of the property, their existing home. In this case the critical area buffer, already substandard as a legacy of earlier ordinances or lack of them, was allowed to be further reduced based on the area of lot coverage typical in the neighborhood, which was also a vestige of earlier ordinances, therefore erasing critical areas protections for Coastal Lagoons under Best Available Science.  The Ordinance can also be expected to create a series of court challenges that will have significant serious consequences for Critical Areas, in violation of GMA, should the County deny a reasonable use application. The definition places too much discretion on the County in determining what is the basis for approving or denying an application, in use of the terms “logical and rational” rather than the terms“denying all reasonable economic use, as is typical of most reasonable use provisions. ”While the WWGMHB chose not to rule on the issue, the County has an obligation to protect critical areas, and could easily correct the language to match what has been accepted by many jurisdictions in Washington State.

We are attaching a sampling of reasonable use provisions from numerous jurisdictions throughout Puget Sound. It is interesting that in many of the development codes in these other jurisdictions, reasonable use is not defined in the definitions section, but merely addressed in the critical areas provisions as to how it will be addressed. This appears to be because, as given in the Duvall Municipal Code, reasonable use is a legal concept “has been articulated by federal and state courts in regulatory takings cases.”  Therefore reasonable use is provided for within the critical areas provisions, leaving the definition to Black’s law dictionary or legal precedent, rather than establishing an entire new definition that is vague at best.

3. C.A.R.E also has concerns that conditions for proper enactment of the current ordinance have changed since the Ordinance was adopted, i.e. the current budgetary crisis will not allow for the proper site inspection and review of applications as expected.  The County argued that it needed to establish a more user-friendly ordinance that involved the landowner in determining critical areas on their property, but when we raised concerns that landowners would not be able to, or have the incentive to, properly designate or delineate wetlands on their properties, or to classify wetlands for the purposes of establishing proper buffers, we were told that County staff would perform site visits to determine critical areas, and that the County was “staffing up” to do this work, and that was understood by the BOCC in approving the Ordinance.  Given the current budgetary crisis and elimination of County staff, we are concerned that the County will not be able to implement the ordinance as originally thought.  We recently learned that a consultant requested the County review their delineation of a wetland due to the complexity of the soils and vegetation on the site, and were told the County did not have time to perform such site reviews.  The BOCC should request of the County an evaluation of the situation given the current budget changes.

4. Lastly, we are still concerned that the buffers allowed in the Water Quality table will increase degradation of Critical Areas from the previous Ordinance. While it might be argued that the simplistic buffers in the 1998 Critical Areas protections did not allow for enough flexibility for landowners, the generally healthy condition of most County wetlands indicates those buffers protected critical areas as shown by the review of Critical Area condition by Dr. Adamus and the County. The previous buffers protected all wetlands that will now be classified as “native Plant wetlands”  or mature forested wetlands, with a 100 foot buffer. Now, those wishing to build a home on rural property (4.5 acres or greater) will be able to reduce their buffer on mature forested wetlands, small ponded wetlands, and native plant wetlands to as little as 25 feet.  The County has no language that prevents further increase of land use intensity under successive permit applications. And since the land use intensity created by the permitted buffer will qualify as an “existing use,” successive permits will be able to use the reasonable use provisions to further develop the property to a higher level of use intensity.  The Board of Commissioners should make 50 feet be the minimum buffer allowed for any wetland, given that its Best Available Science document did not provide evidence that buffers less than 50 feet protect all functions and values. Because of the wide variety of functions and values to wildlife, native plant wetlands, small ponded wetlands, and mature forested wetlands  should not be protected only for water quality in any County scheme.

In summary, the new “reasonable use” provisions have completely departed from the historical purpose of the reasonable use doctrine, to prevent “regulatory takings” by denying all use of property. The new reasonable use provisions remove limits on scale and extent of claimed reasonable uses, from those minimally necessary to provide “reasonable economic use,” to allow incursions into critical areas for whatever is typical in the surrounding neighborhood, whether it is currently allowed or no.  This approach ends up relying on mitigation to replace wetland functions and values, which has been shown through research to result in net loss of wetlands.    

We suggest that the Board of Commissioners today adopt the corrected definition of “reasonable use” as was originally proposed to the Planning Commission by the Planning Department (in the January 27, 2009 PC Hearing) in the wording provided above, so as to comply with the order of the Hearings Board, but also to continue this hearing to correct the broader problem with the “reasonable use” scheme. Fixing the problems will involve again establishing that the intent of reasonable use provisions is to prevent unconstitutional takings of private property without compensation, and that  the proposed scale and extent of reasonable uses is limited to that necessary to provide reasonable economic use, while minimizing on-site impacts to critical areas.

In its ordinance C-130-08, the County has an opportunity to correct deficiencies in the wetlands ordinance and should do so. If the County is insistent on using the land use intensity formula, the smallest buffers allowed for all wetlands that provide habitat function should not be less than 50 feet, as the County’s own BAS did not document buffers less than this as protecting functions and values of habitat.

We appreciate the effort and attentiveness the County has given to this ordinance due to its importance in protecting the rural character of Camano Island and Island County as a whole. 

 Respectfully submitted,

 Allison WarnerC.A.R.E. PresidentFor the Board of Trustees 

Lake Stevens

14.88.310 Demonstration of Denial of All Reasonable Economic Uses.

14.88.320 Allowance of Regulated Use in a Critical Area Where Denial of All Economic Use is Demonstrated.

If an applicant for an activity or development proposal demonstrates to the satisfaction of the Planning and Community Development Director that application of these standards would deny all reasonable economic use of the property as provided by Section 14.88.220, development, as may be conditioned, shall be allowed if the applicant also demonstrates all of the following to the satisfaction of the Director:(a)    If proposed in a wetland, stream, creek, river, lake or other surface water, that the proposed project is water-dependent or requires access to the wetland as a central element of its basic function; or(b)    If proposed in a critical area not listed in subsection (a) of this section, that it is not water-dependent but has no practicable alternative; and(c)    That no reasonable use with less impact on the critical area and its buffer is possible (e.g., agriculture, aquaculture, transfer or sale of development rights or credits, sale of open space easements, etc.);(d)    That there is no feasible on-site alternative to the proposed activities, including reduction in density, phasing of project implementation, change in timing of activities, revision of road and lot layout, and/or related site planning considerations, that would allow a reasonable economic use with less adverse impacts to the critical area and its buffer;(e)    That the proposed activities will result in minimum feasible alteration or impairment to the functional characteristics of the critical area and its existing contours, vegetation, fish and wildlife resources, hydrological, and geologic conditions;(f)    That disturbance of the critical area has been minimized by locating any necessary alteration in buffers to the extent possible;(g)    That the proposed activities will not jeopardize the continued existence of endangered, threatened, or sensitive species as listed by the Federal Government or the State of Washington. An applicant is required to confirm with the State of Washington that special conditions or recommendations are not required for candidate or monitor species;(h)    That the proposed activities will not cause significant degradation of groundwater or surface water quality;(i)    That the proposed activities comply with all State, local and Federal laws, including those related to sediment control, pollution control, floodplain restrictions, and on-site wastewater disposal;(j)    That any and all alterations to environmentally sensitive areas and their buffers will be adequately mitigated;(k)    That there will be no damage to nearby public or private property and no threat to the health or safety of people on or off the property;(l)    That the inability to derive reasonable economic use of the property is not the result of actions by the applicant in segregating or dividing the property and creating the undevelopable condition after the effective date of this chapter; and(m)    That deliberate measures have been taken to minimize the impacts. Minimizing impacts shall include but not be limited to:(1)    Limiting the degree or magnitude of the prohibited activity;(2)    Limiting the implementation of the prohibited activity;(3)    Using appropriate and best available technology;(4)    Taking affirmative steps to avoid or reduce impacts;(5)    Sensitive site design and siting of facilities and construction staging areas away from critical areas and their buffers;(6)    Involving resource agencies early in site planning;(7)    Providing protective measures such as siltation curtains, hay bales and other siltation prevention measures; and(8)    Scheduling the prohibited activity to avoid interference with wildlife and fisheries rearing, resting, nesting or spawning activities. (Ord. 773, Sec. 2, 2008; Ord. 741, Sec. 2, 2007)  

Snohomish County—also does not have a definition of reasonable use, presumably because it is defined in the courts.

30.62.400  Reasonable use allowance.