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Almost all of Deer Harbor Hamlet plan
upheld by hearings board
Definition of research facility must by rewritten
posted 03/26/2008
An appeal by Deer Harbor residents Michael Durland and Kathleen Fennel challenging the Deer Harbor Hamlet Plan was decided by the Western Washington Growth Management Hearings Board in favor of San Juan County on all but one issue.
The county will have to redefine research facilities. The current definition described the facilities as occurring on property of 20 acres or more in one section and making no such restriction as to land size in another.
In all other matters the board found, "the County’s process for limiting uses on Petitioner Durland’s property was not ill-conceived, ill-reasoned, or ill-considered." Because existing uses would be allowed to continue either as conditional or nonconforming uses, the appellants "existing property rights" were protected.
Besides the research definition, the other issues were:
- that the Plan and regulations violated Goal 5, the Growth Management Act’s (GMA) Economic Development Goal and Goal 6, the GMA’s Property Rights Goal, because the Plan and development regulations do not allow all the uses previously allowed on Petitioner Durland’s property as well some uses that are allowed in other Deer Harbor Hamlet (Hamlet) marinas.
- that the County’s decision to direct new commercial uses to a Community Center Overlay District is ill-reasoned and therefore, arbitrary and discriminatory.
- that the County violated the GMA because it based the uses allowed in the Hamlet Industrial-B District on non-permitted existing uses and did not review the allowance of these uses for water polluting impacts.
- that the County be directed to require the owners of these alleged non-permitted uses to obtain permits.
The decision states: The record shows that the County’s rationale to limit uses on Durland’s property and to direct new commercial uses to a Community Center Overlay District was based on a public process where some desire was expressed for a community center in the Hamlet, but there was no consensus. The planning staff presented a rationale to the County Council for designating the Community Center Overlay zone and for separating commercial uses that attracted large numbers of people from industrial uses.
Additionally, the existing uses on Durland’s property can continue either as a conditional or nonconforming use, so his property rights are protected. For these reasons, we find that the Plan and the implementing development regulations do not violate Goal 6. The Board also finds that these decisions were within the discretion afforded the County, and do not violate Goal 5.
The compliant boundaries of the Hamlet were not changed by the Plan. Commercial, industrial, and residential uses were allowed throughout the Hamlet previous to Ordinance 26-2007’s adoption.
Therefore, the Board finds that we have no jurisdiction now to determine what uses –legal or not legal- existed in the Hamlet or to determine their appropriate location. Nor does the Board have jurisdiction to order the County to ask property owners to obtain permits.
Additionally, the Board finds that the designation of several properties for industrial use does not trigger a review of water polluting impacts required by RCW 36.70A.070 for land use elements, as these uses were allowed throughout the Hamlet previous to the adoption of the Plan.
Letter from Michael Durland to the Marine Resource Committee
posted 09/27/2007
I have recently appealed the Deer Harbor Hamlet Plan and Ordinance
26-2007 approved by the San Juan County Council in July. The main
reason for this appeal is for arbitrary and discriminatory actions.
The one issue I would like some comment from you on is the prohibition
of Research Facilities in Deer Harbor Hamlet except in parcels of
greater than 20 acres. By using this 20-acre qualifier the San Juan
County Council has restricted this facility to only residential parcels
and has restricted it to the only 20-acre parcel owner in the Hamlet.
Here is the full definition of Research Facilities as stated in the
Ordinance 26-2007 and now a part of the San Juan County Comprehensive
Plan as relates to the Deer Harbor Hamlet.
Environmental, Agricultural, Marine, Forestry, Aquacultural Research
and Education Facilities: Structures used for research, development
and education of Environmental, Agricultural, Marine, and Forestry
practices where intended to restore and/or enhance the ecology of Deer
Harbor and San Juan County. These facilities must provide centralized
and communal living amenities and may not be located on parcels of less
than 20 acres.
As some of you know my partner, Kat Fennell, has a broad scientific
background and has used her experience to develop a 5 year ongoing
Olympia Oyster research project on the tidelands in front of my
boatyard, Deer Harbor Boatworks. Kat has used the Deer Harbor
Boatworks facility for educational outreach for local schools, YMCA
groups, and others. We both had planned on building on this Oyster
research project and continuing environmental and marine research from
my facility. It seems this is an illegal practice now.
Any comments you have on Hamlet Plan and Ordinance would be appreciated.
Michael Durland
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