Lichter asked Myhr to explain what had happened.

Myhr said he boarded the ferry late and spoke to many people then went out on the deck. He walked up to the group Lichter was with and spoke to the group before realizing he shouldn't be there. He then left. "At no time was any county business discussed," he said. Myhr apologized for any appearance of impropriety and said he would definitely not make that mistake again.

Lichter said he agreed with Myhr's recollection of events and continued on with the public hearing.

If anyone believes an illegal meeting is held, the recourse is to file a case in Superior Court. If proved, the elected officials would be fined $100 each. If not the plantiff would have to pay court costs.

At the May 2 meeting, the decision was made to not go with the planning commission's recommendation. The council directed staff to draw up a new ordinance by Friday, May 5. The hearing resumed Friday morning.

On Friday, Community Development and Planning Director Ron Henrickson was asked for his opinion on the new ordinance. He said he believed it had a "reasonable chance of being accepted by the Growth Management Hearings Board." The key would be if it had widespread community support, he said.

After the meeting was adjourned, Gaylord said the council hadn't asked him for his opinion. Asked by the press afterwards, he reiterated what he has said in September. He believed the county should look to the courts to make case law.

Hearing set for June 6 for detached ADU ordinance

posted 05/05/06
The county Council voted 3-0 to hold a public hearing Tuesday June 6 on the proposed Accessory Dwelling Unit ordinance that was presented Friday, May 6. The ordinance allows a limited number of detached dwelling units to be built each year in rural lands. A complete story will be posted Monday.

New ADU ordinance drafted

This story has been changed since originally posted, the change is in bold.

posted 05/05/06
The rough draft of the new ordinance on Accessory Dwelling units will be discussed at 10 a.m. in the county Courthouse Friday, May 5, 2006. County Prosecutor Randy Gaylord, Interim Pro Tem Administrator David Goldsmith and Community Development and Planning Dept. staff. The language was in the original proposal written by county Commissioner Kevin Ranker in September 2005.

Draft language for ADU ordinance for May 5, 2006

posted 05/05/2006
NOW THEREFORE be it ordained by the County Council of San Juan County, State of Washington: Section 1. San Juan County Code Section 18.20.010 and Ordinance 21-2002 shall be amended as follows:

18.20.010 "A" definitions.

"Accessory Dwelling Unit" (ADU) means a living area that is incidental to the principal single family residential structure, located on the same lot, that provides for sleeping quarters, kitchen, and sanitation facilities. An ADU may be attached or detached.

"Attached Accessory Dwelling Unit" (AADU) means an ADU which is internal or attached to the principal residence by (a) a common wall, or (b) a continuous roof and exterior wall enclosures, or (c) a continuous roof no less than six feet in width, the area of which is included in the living area of the ADU.

Section 2. San Juan County Code Section 18.20.040 and Ordinance 21-2002 shall be amended to read as follows:

18.20.040 "D" definitions.

"Dwelling Unit" means a single unit providing complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation. A primary residence and an ADU that meets the requirements of Section 18.40.240 of this code constitute a single dwelling unit. Recreational vehicles are not dwelling units.

"Detached ADU" means an accessory dwelling unit that is physically distinct from the primary residence. To be detached, the ADU and primary dwelling unit may not be connected or must be structurally independent per the International Residential Code.

Section 3. San Juan County Code Section 18.20.060 and Ordinance 21-2002 shall be amended to read as follows:

18.20.060 "F" definitions.

"Free-standing ADU" means an accessory dwelling unit that is physically distinct from the primary residence. To be free-standing, the ADU and primary dwelling unit may not be connected or must be structurally independent per the International Residential Code.

Section 4. San Juan County Code Section 18.20.070 and Ordinance 21-2002 shall be amended to read as follows:

18.20.070 "G" definitions.

Section 5. San Juan County Code Section 18.20.090 and Ordinance 21-2002 shall be amended to read as follows:

18.20.090 "I" definitions.

"Internal Accessory Dwelling Unit" (IADU) means an ADU that is part of the principal single family residential dwelling and provides for egress and ingress between the IADU and principal single family residential dwelling, or that shares a common wall with the principal single family residential dwelling, but has separate egress and ingress.

Section 6. San Juan County Code Section 18.40.240 and Ordinance 21-2002 § 5; and Ordinance 2-1998 Exh. B § 4.18 shall be amended to read as follows:

18.40.240 Accessory Dwelling Units (ADU's).

The following standards apply to accessory dwelling units:

A. Accessory Dwelling Unit. Where not otherwise prohibited by this code, only one attached or detached accessory dwelling unit is permitted on any lot for which this code allows a single-family residence as the principal use of the lot, provided that all of the requirements of this section are met, except where the applicable density for that lot allows for additional residences.Each detached accessory dwelling unit shall be counted as a separate dwelling unit for density calculations, except when allowed pursuant to an ADU permit.

B. A detached ADU is permitted in the Eastsound Urban Growth Area, the Lopez Village Urban Growth Area and in all Activity Center Land Use District, except Island Center District, on any lot that allows a single family residence as the principal use of the lot. Each ADU in these areas shall not be counted in density calculations.

C. A detached ADU is permitted in the following land use districts: All Rural Lands, RFF, RR, RGU, AG, and FOR subject to the provisions of this section.

D. An accessory dwelling unit is prohibited in the Rural Industrial, Rural Commercial, Natural, and Conservancy land use districts.

E. An accessory dwelling unit is prohibited on parcels in the Island Centers district per SJCC 18.30.030 Table 3.1, footnote 13.

F. The following standards apply to all accessory dwelling units:

1. Size. An accessory dwelling unit permitted subsequent to the adoption of this ordinance shall not exceed 1,000 square feet in living area as defined in SJCC 18.20.120. 2. Parking. At least one additional off-street parking space shall be provided for the accessory dwelling unit in addition to the parking required for the principal residence. 3. Driveway. An accessory dwelling unit shall use the same driveway as the principal residence. 4. Ownership. An accessory dwelling unit must be owned by the owner of the single-family residence. 5. Permits. Every new accessory dwelling unit will require a building permit. Every conversion of an existing structure to an accessory dwelling unit must meet all the requirements of this section and will require a building permit. Any additions to an existing building shall not exceed the allowable lot coverage or encroach onto setbacks. The size and design of the ADU shall conform to applicable standards in the building, plumbing electrical mechanical, fire, health and any other applicable codes.

G. The following standards apply to all detached accessory dwelling units:

1. ADU Permit. Every new detached accessory dwelling unit and every conversion of an existing structure to a detached accessory dwelling unit that do not meet the density requirement in which they are located will require an "ADU Permit." No more than one ADU Permit shall be issued to a property owner in any calendar year. The fee for an ADU permit shall be the same as that for stormwater review. Prior to issuing any ADU Permit, the applicant must submit for approval a site plan showing that the accessory dwelling unit and principal residence will meet the requirements of this Section 18.40.240.

a. Within land use districts located inside of the boundaries of activity centers and urban growth areas, there is no restriction on the number of permits for detached accessory dwelling units.

b. Outside of the boundaries of activity centers and urban growth areas, the number of detached ADU Permits in any calendar year shall not exceed twelve percent (12 %) of the total number of building permits for new single family residences issued for the previous calendar year outside the boundaries of activity centers and urban growth areas. Two percent (2 %) of the permits released in any one year shall be restricted for the conversion of existing accessory structures that have legally existed for no less than five years. Permits shall be issued on a first come/first served basis under procedures established by the Administrator. No unassigned permits shall carry forward to the next year.

2. Distance. The maximum distance between the closest vertical walls of the main house and any detached accessory dwelling unit shall be no more than 100 feet.

3. Water. An application for a detached accessory dwelling unit shall include evidence of the availability on site of one equivalent residential unit of water in addition to the water required for the principal residence.

4. Location. Locate new detached ADU's and their utilities and driveways to avoid or minimize intrusion on the most sensitive open-space features of the site, including but limited to:

a. Existing orchards, meadows and pasture areas;

b. Areas of native plants, wild flowers and forest;

c. Rridgelines and contrasting edges between landscape types unbroken by structures;

d. Ridgelines and contrasting edges between landscape types unbroken by structures;

e. Rolling open or steep open slopes, and

f. Critical Areas.

5. Parcel Size.

a. A detached ADU is not permitted on parcels less than one acre in size except in urban growth areas and activity centers.

b. A detached ADU on parcels larger than one acre and smaller than 5 acres, except in urban growth areas and activity centers, is permitted with the following restrictions:

i. One garage building and/or one accessory dwelling unit, each of which covers no more than 1,000 square feet of land area and each of which is no taller than 24 feet above existing grade as measured along a plumb line at any point.

ii. A combination of these uses in a single story structure no larger than 2,000 feet of land area and no taller than 16 feet above existing grade as measured along a plumb line at any point where either the garage building and/or accessory building unit do not exceed 1,000 square feet.

iii. A combination of these uses in a two-story structure no larger than 2,000 feet of total gross floor area, and no taller than 24 feet above existing grade as measured along a plumb line at any point where either the garage building and/or accessory building unit do not exceed 1,000 square feet.

c. The minimum parcel size for the construction of a detached accessory dwelling unit is five acres for any parcel with waterfront, 10 acres for parcels located in the agricultural district, and 20 acres for parcels located in the forest district and one acre for all parcels located in a rural land use district. This restriction does not apply to parcels located in urban growth areas or activity centers.

6. Sequence of Construction. Either the accessory dwelling or the principal residence may be built first. Regardless of the sequence of construction, every detached accessory dwelling unit must comply with the requirements of Section 18.40.240. When the principal residence is constructed after the ADU, the applicant must show that the structure indicated as the accessory dwelling unit was constructed according to all applicable requirements in effect at the time the building permit was issued for the accessory dwelling and the accessory dwelling unit does not exceed 1,000 square feet of living area.

7. Rental. Detached Accessory Dwelling Units cannot be separately leased or rented for less than 30 days.

Council adds detached guesthouses

posted 05/03/06
The public hearing on accessory dwelling units will continue at 10 a.m. Friday, May 5 in the council hearing room in the county Courthouse in Friday Harbor. Councilmembers Alan Lichter and Kevin Ranker agreed to insert language into the ADU ordinance which allows some detached ADUs in rural lands. County staff is putting together the draft language which will be posted on the county Web site on Thursday and discussed on Friday.

Among the restrictions are: the size of the ADUs will be limited to 1,000 sq. feet. The nearest wall of the ADU must be 100 feet from the nearest wall of the main house. The number of permits issued for detached ADUs would be limited to 12 percent of the previous year's total building permits.

Councilmember Bob Myhr preferred an approach which would limit the size of the ADUs to 800 sq. feet and restrict their placement to an 80 foot circle from the main house. The ADUs could be placed farther away if the site was 10 acres or larger.

Because of the changes, the council is making, the county will miss the May 13 deadline to present an ordinance to the hearings board by a few weeks. The proposed ordinance must be publicized and a comment period and public hearing held.

Hearing continued today on ADUs

updated 05/02/06
An emotional overflow crowd let the county council know its displeasure with the proposed ban on detached accessory dwelling units (ADUs) on rural lands Tuesday April 26, 2006. Time ran out before the three county councilmembers could make their final decision on the proposed ordinance which does not allow detached guesthouses in rural areas. Two of the councilmembers did offer proposals. A final decision on the direction the council will take is expected today, when the hearing resumes at 2:30 p.m. in the county Courthouse.

No decision yet on ADUs, more ideas proposed

posted 04/26/2006
An emotional overflow crowd let the county council know its displeasure with the proposed ban on detached accessory dwelling units (ADUs) on rural lands Tuesday April 26, 2006. Time ran out before the three county councilmembers could make their final decision on the proposed ordinance which does not allow detached guesthouses in rural areas. Two of the councilmembers did offer proposals.

Councilmember Bob Myhr offered his own proposal. A new ordinance which would allow detached ADUS if they were within 80 feet of the main house.

Councilmember Kevin Ranker told the crowd he has been in favor of allowing some freestanding ADUs all along. His original proposal, which he presented to the council last fall, included detached ADUs. He was hoping the county would be able to come up with a local solution to the problem.

Now that the planning commission has completed the public process and the result is a more restrictive ordinance than the one that is proceeding through the court system, Ranker announced at the hearing he wanted to lift the stay and have the Court of Appeals rule on the case.

He said the stay had been important to allow the public process to be completed. His hope had been to achieve a local solution.

At the afternoon meeting, Friday Harbor attorney Stephanie O'Day suggested the council form a task force to take another crack at trying to craft a local solution. The issue that was creating the problem centered around the use of the guesthouse, she said.

In a phone interview later, Ranker said he contacted O'Day after the meeting and will be asking the other councilmembers to agree to pursue her idea. He will suggest a task force be created with a short one to two-month timeline. While the task force working, the county would want the Court of Appeals to not issue its decision, he said.

Councilmember Alan Lichter did not have time to talk about his opinion of the proposed ordinance or the other ideas proposed.

Appeals Court wants more information before issuing stay

posted 04/21/2006
PRESS RELEASE: The request by the County and Friends of the San Juans for a stay in the guest house litigation hit a snag after the Washington Court of Appeals, said it wanted another brief to respond to the filing by Orcas property owners, Timothy Blanchard and Margaret Manning.

Blanchard and Manning filed a "friend of the court" brief urging the court to issue a decision promptly and deny the request for a stay.

The court issued a short order stating that the filing by Blanchard and Manning "appears to raise a substantial issue" and requested a response by the County and the Friends by May 1.

"We have submitted a response," said Prosecuting Attorney Randall K. Gaylord. The County's position is that this case presents a political issue regarding the extent to which a freestanding accessory dwelling (guest house) will be allowed or not allowed in rural lands. The County Council has said that it wants to follow the existing orders of the Growth Board, not challenge them in court, said Gaylord.

The Orcas couple wrote to say that a "public interest" doctrine and state statutes allow the court to issue a decision promptly and that a written decision will assist the officials in San Juan County and other counties.

The County's position is that as a party to the case, the County Council may ask the court not to apply the doctrine and stay action that would lead to a decision. "We will inform the court that the County Council believes a decision at this time will undercut the political process," said Gaylord.

"The order from the court will complicate the deadlines the County is working under. The County has assumed that the court would issue the stay promptly, like it did six months ago. "We have many deadlines coming up, so prompt action would be most helpful," said Gaylord.

'Simple, elegant' guesthouse solution moves forward

posted 04/04/2006
San Juan County Council members moved forward with an accessory dwelling unit ordinance which does not allow detached ADUs in rural areas. A public hearing will be held on April 25, 2006. "It's perhaps an elegant solution," said Councilmember Bob Myhr. "It seems to to be sort of a positive way of preventing sprawl."

Councilmember Kevin Ranker was surprised the planning commission was so strict in its recommendations. "I'm disappointed we are not pushing the envelope more," he said. "This is far less risky. I'd very much like to see us put this issue to bed."

Councilmember Alan Lichter agreed it was a "simple and elegant solution". He commented on the advisory ballot the previous Board of County Commissioners had placed before the voters. "It was a bogusly written ballot," he said. It asked them if they agreed they had the "right to break the law." That is "not a good thing to do for an advisory ballot. Not a good thing to do for a BOCC. Not a good thing to do for the citizens of San Juan County," he said.

Proposed ordinance bans almost all detached ADUs

posted 03/15/2006
Under the proposed new draft ordinance detached ADUs are not allowed on rural parcels unless the parcel is large enough to qualify for two density units. In other words if the property owner can legally build two houses on the property, one could be a guesthouse. San Juan County Planning Commissioners sought to address the issue of accessory dwelling units (ADUs) in a way that would pass muster with the Growth Management Hearings Board, according to Community Development and Planning Director Ron Henrickson.

Two of the 23 whereas clauses are:

WHEREAS: The Planning Commission desires to address the subject of freestanding ADUs in a manner consistent with the decisions of the Growth Board.

WHEREAS:The Planning Commission finds it appropriate to allow the construction of a freestanding ADUs in lieu of a second house in all Rural and Resource districts, but only if a parcel has sufficient density for a second dwelling unit. This policy will promote and encourage the use of large lots with a main house and an ADU as an alternative to the construction of a second house. The Planning Commission finds it appropriate and necessary to prohibit freestanding ADUs in the Rural and Resource lands in all other cases.

Under the standards section:

C. Free-standing ADUs are permitted in Urban Growth Areas and Activity Centers on any lot having a single family residence as the principal use of the lot. The ADUs in these areas shall not be counted in density calculations.

Councilmember Alan Lichter and Bob Myhr indicated they were supportive of the ordinance. Myhr said it was a way to prevent sprawl. Commissioner Ranker said he was surprised by the strictness of the ordinance. The councilmembers received the ordinance Tuesday, March 14, 2006. All three wanted more time to study it. They will discuss it in a worksession next week and then set a public hearing date.

County asks for guesthouse extensions

posted 03/08/2006
San Juan County Council decided Tuesday, March 7 to ask the Western Washington Growth Management Hearings Board for a 60-day extension of the March 13 compliance deadline regarding accessory dwelling units. The council will also ask the state Court of Appeals for another 180 day stay of its ruling on the county's appeal of the Accessory Dwelling Unit lawsuit. The six-month delay could give the county time to finish up its work with the hearings board regarding the detached guesthouses.

The county has been under an order of invalidity regarding detached guesthouses since November 2000. A moratorium has been in effect since then. A lawsuit ended up in the state Court of Appeals.

The current council - then the Board of County Commissioners - decided in 2005 to try to find a "local solution." They asked the court to put its ruling on hold for 180 days while the county tried to work out a compromise ordinance with the litigants.

An ordinance proposed by Councilmember Kevin Ranker was presented to the planning commission. The commission spent several sessions working on the ordinance and ended up writing a new one.

Councilmember Kevin Ranker said, "The planning commission pulled together a document much stricter (than the proposed ordinance). It disallows detached units - period. They must be attached to garages or other buildings."

The planning commission's proposed ordinance will be presented to the county council on March 14, 2006. A public hearing will be held April 4, 2006.

Detached guesthouses become attached in draft ordinance

posted 1/25/2006
If the draft ordinance proposed by the San Juan County Planning Commission becomes law, property owners could build guesthouses on any parcel (except resource land) as long as they were attached to an outbuilding. The outbuilding would have to be at least 400 sq. feet in size.

The commission heard testimony and discussed the county's Accessory Dwelling Unit (ADU) during two days of hearings (Dec. 16 and Jan. 20). The ordinance drafted by the commission will be presented in a public hearing before the county council.

The commission dropped language regarding detached ADUs and instead used language from a Lewis County ordinance which allows ADUs to be attached to accessory buildings. The commission also suggested more setbacks and open space if the ADU is built.

The Community Development and Planning Dept are putting together the draft ordinance for San Juan County. Copies will be available soon for the public to review.

The Lewis County ordinance referenced by the commission is posted below. It is not the San Juan County draft ordinance.

LEWIS COUNTY ORDINANCE

Chapter 17.102
FAMILY MEMBER UNITS AND ACCESSORY DWELLING UNITS

Sections:

17.102.010 Purpose.
17.102.020 Applicability.
17.102.030 Definitions.
17.102.040 Implementation - Separate units.
17.102.050 Implementation – accessory dwelling units.
17.102.060 Enforcement.
17.102.010 Purpose.

The purpose of this section is to encourage rural families to remain in Lewis County and continue the multiple generational patterns of historic land use and development, the economic use of existing housing stock, to advance and preserve farming as a way of life, and to promote affordable housing. Provisions of this section provide property owners who held large tracts of undivided land prior to the adoption and implementation of zoning regulations, options for continuation of a historical tradition of land succession and farming in rural Lewis County. [Ord. 1179B Ex. B, 2003; Ord. 1179, 2002]

17.102.020 Applicability.

(1) Rural districts (RDD zones) outside LAMIRD’s.

(a) Separate residential units— Where the intent is to convey property to qualified family members where farming is an ongoing activity or where the land is suitable for farming activities and where there is a benefit from protection of a portion of the land for farming activities.

(b) Accessory dwelling units— Where a dwelling unit is created clearly accessory to the primary residential use, but where no subdivision of the land is intended or will be permitted. [Ord. 1179B Ex. B, 2003; Ord. 1179, 2002]

17.102.030 Definitions.

(1) "Family members" shall include only grandmothers, grandfathers, mother, father, sons, daughters, stepsons, stepdaughters, whether natural or adopted, for families on the property in question on the effective date of this ordinance.

(2) "Disability" means a situation where the owner of the designated property is prevented from full-time employment by reason of a physical or mental condition certified by a medical doctor.

(3) "Family emergency" means a situation where the owner of the designated property is involuntarily required to move from the property, due to health, requirements of a current employer, or involuntary termination of current employment. (County shall require proof of notice of requirements forcing involuntary action.) [Ord. 1179, 2002]

17.102.040 Implementation – separate units.

(1) Where the number of family members exceeds allowable density, a bonus density may be allowed under cluster subdivision provided that:

(a) The overall density does not exceed one unit per five acres and the unit cannot be transferred or sold for a period of 5 years, except for death, disability, or family emergency; and

(b) The proposed subdivision provides an opportunity for a family member to reside on or adjacent to a farm or parcel suitable for farming, protecting the farm or farmable land from inappropriate, non-farm uses. The Administrator shall include findings consistent with this provision when approving any density bonus and subdivision under provisions of this section; and

(c) As applicable to cluster subdivisions of six or more lots, all such requests for bonus density shall be reviewed under the criteria of LCC 17.115.030(10); and

(d) This provision is only applicable to land in common ownership as of April 4, 2002; and

(e) The "parcel" eligible for bonus density under terms of this provision shall be the entire property in common ownership on April 4, 2002, as that property may be divided hereafter; and

(f) All divisions made after April 4, 2002 shall be considered in any requirements for bonus density; and

(g) The provisions of this section shall apply to the RDD 1-10 and RDD 1-20 zones only.

(h) The provisions of this section concerning family member units shall terminate on July 1, 2015.. [Ord. 1179B Ex. B, 2003; Ord. 1179, 2002]

Implementation – accessory dwelling units.

(1) Accessory dwelling units will be allowed in Lewis County to provide affordable low income housing to property owners. This would provide options for property owners who may have family members in need of low income housing or some minimal assistance care.

(a) There shall be no more than one accessory dwelling unit per lot in conjunction with a single-family structure.

(b) All accessory dwelling units shall conform to the Uniform Building Code and all other applicable codes and ordinances.

(c) No more than one family shall be allowed to occupy an accessory dwelling unit.

(d) To ensure that the accessory dwelling unit is clearly secondary to the primary dwelling unit, the habitable floor area for the accessory dwelling unit shall in no case exceed 800 square feet, nor be less than 300 square feet, and the accessory dwelling unit shall contain no more than two bedrooms.

(e) An accessory dwelling unit must be attached to or created within a new or existing primary single-family structure or associated accessory building, and may not be a separate, stand-alone unit.

(f) Prior to final approval of any structure for an accessory dwelling unit, the property owner shall file a covenant to run with the land, that the accessory dwelling unit shall not be cause for subdivision unless such subdivision is in compliance with all subdivision, zoning and other development regulations in effect at the date of application for subdivision approval.

(2) Guest house or rooms for guest in an accessory structure may be permitted in all residential districts, provided such house is used for the occasional housing of guests of the occupants of the principal structure, and not as rental units or for permanent occupancy as housekeeping units. No kitchen shall be allowed in guest house or rooms. [Ord. 1179B Ex. B, 2003; Ord. 1179, 2002]

17.102.060 Enforcement.

(1) The restriction referenced above shall be recorded on the face of the plat of any lot created by the density bonus granted herein, including the date of the implementation and termination of the restriction.

(2) Property may be transferred to other qualifying family members without invoking the covenant.

(3) Any property transferred in violation of the covenant shall be liable for an assessment of a fee equal to 10% of the sale price or assessed value of the property, whichever is higher. The fee shall be assessed to the seller of the property. [Ord. 1179, 2002]

ADU public planning process proceeding

posted 12/20/05
The first of two workshops regarding the new proposed ordinance for Accessory Dwelling Units took place Friday, Dec. 16, 2005. San Juan County Planning Commission heard from citizens concerned about the several of the provisions in the ordinance. Prosecutor Randy Gaylord reminded everyone the ordinance is not a settlement or compromise, it is a brand new ordinance.

The county has been in litigation for more than five years regarding whether allowing construction of guesthouses on rural land increases density. The county has argued the guesthouses should not count as density units. The Friends of the San Juans and several individuals appealed the original ordinance. The Western Washington Growth Management Hearings Board and the Superior Court ruled against the county on the matter of density.

The county pursued the case to the state Court of Appeals and the decision was expected by the end of this year. Commissioners Kevin Ranker and Alan Lichter asked for a stay of the decision to give them time to find a way for the county to create an ordinance which would fit the county's needs and meet Growth Managment Act requirements. If the county loses in the Court of Appeals, the county will have to abide by the hearings board rulings. Appeals to the state Supreme Court is not automatically granted.

The Friends of the San Juans (FOSJ) agreed to join the county in requesting the stay. The new ordinance was derived from work done in executive sessions between both parties before the commissioners decided to ask for a stay. Ranker emphasized the proposed ordinance was a beginning point and he expected it to change after public input was received.

Planning Commissioner Teri Williams had a list of questions about how the ordinance would be interpreted. The restrictions on use - no transient rentals and only one cottage industry per parcel - concerned her.

Commissioner Ri Warren echoed many of Williams' concerns. Restrictions on sizes of garages if a detached accessory dwelling unit was built led to a discussion by the commissioners of "structural density."

After a lengthy discussion of what constituted structural density, Gaylord said, "There is nothing in the Growth Management Act addressing structural density. There are only two ways the hearings board defines density - number of houses or population."

The only way the county code restricts the number of outbuildings on a parcel is through limits on the amount of impervious surface. The percentage varies according to land use classification.

The planning commission will hold another workshop on January 20, 2006.

Workshop Dec. 16 on ADU amendments

San Juan County Planning Commission will hold a workshop on the preliminary draft of amendments to the Comprehensive Plan regarding detached accessory dwelling units Dec. 16 in the county Courthouse. Written and oral comments will be accepted from the public. The amendments will be presented at that time. Preliminary language available in September did not allow transient rental of detached guesthouses.

In January another workshop will be held on the amendments which will incorporate changes from the earlier draft. Written and oral comments will be accepted on the revised amendments.

In February, the county Planning Commission will hold a public hearing on the amendments. After listening to public testimony, the commissioners will deliberate and decide on a recommendation to pass on to the county Council (formerly the Board of County Commissioners).

In March the county Council will hold a public hearing, deliberate and adopt amendments.

The whole process must be concluded by April 17, 2006, the end of the 180-day deadline. The county asked for a six-month stay on a Court of Appeals decision regarding detached ADUs. During the 180 days, the county hoped to adopt regulations which would resolve the issue which has resulted in a moratorium since November 2000 on construction of detached guesthouses.

The Friends of the San Juans and others have sued the county over the issue. By choosing to redraft the amendments, the county started the process all over again. While only the FOSJ and the other original appellants had standing to appeal the regulations in court. The new process means anyone can appeal the new amendments if and when they are accepted by the hearings board.

More information about the public process is available on the county's WEB SITE.

Guesthouse ordinance process outlined

posted 11/02/05
The public will have several opportunities to weigh in on the proposed ordinance for Accessory Dwelling Units (ADUs) before the April 17, 2006 deadline. Interim Community Development and Planning Director Matt Zybas outlined a series of workshops and public hearings Tuesday, Nov. 1, 2005.

The county Planning Commission will hold a workshop on draft amendments to the accessory dwelling unit ordinance on Dec. 16, 2005. Verbal and written comments from the public will be accepted. In January 2006, another workshop will take place incorporating any changes in the draft ordinance. A public hearing will be held in February before the Planning Commission. In March, the Board of County Commissioners will hold a public hearing. The adopted ordinance will be submitted to the Western Washington Growth Management Hearings Board by the April 17, 2006 deadline.

Proposed ADU ordinance restricts transient rental use

posted 11/02/05
The preliminary draft Accessory Dwelling Unit (ADU) ordinance contains several changes including prohibiting short-term rentals of detached ADUs. Detached ADUs must be located within 100 feet of the main house. Under the proposed ordinance, property owners of rural lots of 1 to 5 acres would be allowed to build either a garage or an ADU but not both unless they are combined into a 2,000 sq. foot or smaller building.

Under the proposed ordinance, "a detached ADU cannot be separately leased or rented other than long-term (that is for longer than 30 days).

The number of detached ADUs permits granted each year cannot exceed 12 percent of the building permits issued in the previous year. No rollover of permits to the next year would be allowed.

In order to obtain a detached ADU permit, the applicant must show evidence of an additional equivalent residential unit of water besides the one for the main residence.

Court of Appeals grants stay

posted 09/27/05
San Juan County was granted a 180-day stay in its appeal of the most recent guesthouse ruling. The Board of County Commissioners voted to ask for the stay while a new ordinance is written, public hearings are held and the result presented to the Western Washington Growth Management Hearings Board.

The Friends of the San Juans agreed to work with the BOCC to find a solution to the dilemma regarding detached accessory dwelling units (ADUs). The FOSJ and other appellants have questioned the county's argument that detached ADUs don't increase density.

New approach to guesthouse conundrum

By Sharon Kivisto

posted 09/08/05
Instead of waiting for a decision from the state Court of Appeals regarding detached guesthouses, San Juan County Commissioners Alan Lichter and Kevin Ranker have introduced a new ordinance. Ranker is not confident the county will win in court and a loss means "we have lost the ability to draft and design our own" regulations.

Both men stated during their campaigns they could resolve the guesthouse issue in a matter of days if elected. The county has wrestled with the problem for seven years, with the most recent round of court cases dating back to 2002.

The Friends of the San Juans and several others appealed the county's ordinance which allowed detached accessory dwelling units on virtually every parcel of land. The appellants claimed a free-standing guesthouse must count as a density unit. The county argued detached ADUs did not increase density.

The case has wound its way to the state Court of Appeals in March 2005. The county had lost its argument at the Growth Management Hearings Board and in Superior Court.

The FOSJ agreed Sept. 6 to join the county in asking for a stay of the Court of Appeals case for 180 days. The request was filed Sept. 7, 2005. If the court denies the stay and issues a verdict, the guesthouse question will be resolved. A further appeal to the state Supreme Court is possible but the court can choose to not hear the case.

Lynn Bahrych of the FOSJ preferred the Board of County Commissioners (BOCC) ask the Court of Appeals to dismiss the case with prejudice rather than ask for a stay.

San Juan County Prosecutor Randy Gaylord told the commissioners it would be unwise to do so. If the case was dismissed the county could not raise the density arguement ever again.

Gaylord recommended the commissioners let the legal process proceed and have the matter resolved in the court. "The court doesn’t base its decision on the Superior Court or hearings board decision. It takes other appeal court decisions, legislation and Superior Court decisions into account," he said. "We have a better chance of winning at the Court of Appeals than at the hearings board." By allowing the matter to proceed in court, "finality" on this issue could be achieved, he said. A moratorium on detached guesthouse construction has been in effect since Nov. 2000.

By introducing a new ordinance, the commissioners are starting the whole process over again, according to Gaylord. Public hearings will be held, the draft ordinance revised and adopted by the commissioners. Then it will be presented to the Western Washington Growth Management Hearings Board.

Unlike the original ordinance which had the presumption of validity behind it - in other words, the ordinance would be considered valid unless it was appealed - the new ordinance must be proven to be valid. The reason for this is because the county is under a Invalidity Order as a result of the ongoing process regarding the current ordinance.

Bahyrch disagreed with Gaylord's take on the subject. She said the presumption of validity would take over when the new ordinance is presented to the hearings board and they would have to find the county in compliance.

The introduction of the new ordinance also means that anyone can appeal it. The current ordinance can only be appealed by the parties already involved in the court case. Bahyrch believes if someone appealed, the hearings board would look favorably on the new ordinance.

The proposed ordinance allows detached ADUs on parcels one-acre in size or larger. The number of ADUs which could be built in any given year would be limited to 10 to 12 percent of the number of building permits issued in the previous year. The density issue would be dealt with by the county agreeing ADUs count as a housing unit, but creating a density exemption for them.

Gaylord doubts the hearings board will approve exemptions for density. The board's position on the density issue has been made clear in its previous rulings, he said. Island County's ordinance which allows a certain number of detached ADUs per year was adopted before legal rulings on density had been issued. Timing and the presumption of validity worked in Island County's favor. No one appealed its ordinance.

BOCC wants to settle ADU issue with Friends

posted 08/31/05
Fearing a loss in the state Court of Appeals, San Juan County Commissioners Alan Lichter and Kevin Ranker announced August 30 that they wish to settle the lawsuit. The Friends of the San Juans have battled the county in court and at the hearings board about the issue of accessory dwelling units (guesthouses). The county contends detached guesthouses should not be counted when calculating density.

Their argument has not prevailed through the hearings board and Superior Court. The Friends want limits on the number and location of detached ADUs.

While the two parties have met in several executive sessions, Ranker said the rest of the settlement talks will be done in the open.

Vested interest necessary for guesthouse/main house construction

posted 07/27/05
PRESS RELEASE: A July 21, 2005 ruling from the Western Washington Growth Management Hearings Board on the construction of a guest house states that only people with a "vested right" may build a guest house or construct a main house on property with an existing guest house.

"This decision closes the door for a few people who had built a guest house first and planned to build a main house later," said San Juan County Prosecutor Randall K. Gaylord. "In the big picture, there are few people who will be affected by this decision, but for those people the decision is harsh," he said.

Throughout the county, people have built a guest house first with plans to build a main house later. In 2001, thirty people appeared before the Growth Board and asked the Growth Board to clarify its rulings to allow them to continue with those plans. The Growth Board issued a Clarifying Order in 2001, which the county implemented by allowing construction of a main house in the few circumstances where a structure that qualified as a guest house already existed on the property. Gaylord said that decision, by a different Growth Board, was based upon a fair approach that honored the reliance by citizens backed by investments in their property.

In 2004, the Friends of the San Juans, Lynn Bahrych and Joe Symons objected to the 2001 Clarifying Order and the county's interpretation of that ruling. On July 21, 2005, the Growth Board said that the 2001 Order is limited to those circumstances where the vested rights doctrine applied.

According to Gaylord, the "vested rights doctrine" requires a person to have filed a complete application for a building permit for the main house and the guest house before November 30, 2000. "Simply showing a guest house on a plot plan is not sufficient," said Gaylord.

The Growth Board observed that the larger issue of detached guest house construction is on appeal to the court of appeals in Tacoma and that a decision is expected soon. The case was submitted to the appellate court after oral argument on March 28, 2005. "A decision from the appellate court is expected any time in the next three months," said Gaylord.

Gaylord said he will meet with the Board of County Commissioners on August 9, 2005 to discuss whether to appeal this decision, or simply wait for the court of appeals' decision.

The ayes have it on the Guesthouse question

posted 11/03/04
By a three to one margin, county voters voted yes on the Guesthouse Advisory ballot. The question was: Do you support local land use provisions for San Juan County that retain the right to allow one guest house (detached accessory dwelling unit) on any parcel with a single family residence, subject to restrictions on size, location, ownership, occupancy and proximity to the main house?

The question was placed on the ballot, so the county Commissioners could determine if residents were behind their court battle to allow detached accessory dwelling units on each rural residential lot.

Guesthouse question written

posted 08/16/04
On the November 2, 2004 ballot, San Juan County voters will be able to vote yes or no on the following question:

Do you support local land use provisions for San Juan County that retain the right to allow one guest house (detached accessory dwelling unit) on any parcel with a single family residence, subject to restrictions on size, location, ownership, occupancy and proximity to the main house?

San Juan County Commissioners refined the language over the course of several meetings. The last change was to have "any" parcel rather than "each" parcel. The ballot is an advisory ballot to let the Board of County Commissioners know how county residents feel about the issue.

Voters will weigh in on guesthouses

posted 06/18/04
San Juan County Commissioners agreed to place an advisory vote on the November 2004 ballot regarding the guesthouse issue. There has been a moratorium since November 2000 on the construction of detached accessory dwelling units (ADUs) in San Juan County.

What exactly they will ask the voters hasn't been decided yet. Each of the three commissioners will bring a draft to the June 29, 2004 Board of County Commissioners meeting.

The commissioners believe the construction of detached ADUs should not be considered in density calculations. The Friends of the San Juans and others challenged the county's proposed regulations. The Western Washington Growth Management Hearings Board and two Superior Court judges agreed with the appellants that detached ADUs increase density.

Recently the county and representatives of the appellants tried to reach a settlement on the matter by agreeing on restrictions to detached ADUS. The talks failed after the two sides could not agree.

According to San Juan County Prosecutor Randy Gaylord there was agreement in principle on several major points. The county agreed to put a cap on ADUS, limited them to 15 percent of single-family dwellings.

"This cap would nail the coffin on the myth that an ADU will 'double the density.'" he said. According to Gaylord, ADUs do not double the number of people on a parcel because the maximum number of people is always limited to one family, regardless of whether they live in a main house, ADU or both. "ADUs provide a flexible housing style. We have always limited the number of people on parcels to one family. ADUs don't double the density any more than a big family doubles the density," he said.

Under the county's Unified Development Code:

"Family" means individuals related by genetics, adoption, or marriage or a group of not more than eight unrelated individuals who share a single dwelling unit.

The commissioners have said ADUs provide affordable housing opportunities but were not willing to adopt regulations requiring ADUS to become "permanently affordable housing". More details of the talks are available in a press release from Randy Gaylord.

While the county was willing to try to negotiate a settlement, commissioners also directed Gaylord to file an appeal of the January 9, 2004 Thurston County Superior Court ruling. A brief is due in thirty days.

BOCC likely to file appeal

posted 03/04/04
San Juan County Commissioner Darcie Nielsen said while the Board of County Commissioners directed the county prosecutor to "look at possible mediation" with the Friends of the San Juans, they most likely will still file an appeal. A Jan. 9, 2004 Thurston County Superior Court ruling went against the county's argument that detached accessory dwelling units should not be included in density calculations.

The FOSJ have battled the county on this issue for the past four years. The Western Washington Growth Management Hearings Board and Superior Court decisions have been in the FOSJ's favor.

"There is still time to file an appeal," Nielsen said. The 30-day time period will start after a final order of the the Jan. 9 oral ruling is issued. San Juan County Prosecutor Randy Gaylord is drafting documents this week asking for the final order.

Nielsen said the county would keep its options open if it filed an appeal. It could always be withdrawn later if necessary, she said. She noted, even if the county was able to reach a settlement with the FOSJ, there is no guarantee the hearings board would approve it.

The directions to explore mediation with the FOSJ were given to the prosecutor in an executive (closed door) session. According to the Open Public Meetings Act action must be taken in open session. Asked about this, both Prosecutor Randy Gaylord and Nielsen said they didn't believe the directive constituted action. "To me it is just part of the litigation process," Nielsen said.

One of the justifications for executive sessions under the OPMA is: (i) To discuss with legal counsel representing the agency matters relating to agency enforcement actions, or to discuss with legal counsel representing the agency litigation or potential litigation to which the agency, the governing body, or a member acting in an official capacity is, or is likely to become, a party, when public knowledge regarding the discussion is likely to result in an adverse legal or financial consequence to the agency. RCW 42.30.110(1)(i).

No guesthouse appeal for now, county willing to talk

By Sharon Kivisto

posted 02/04/04
San Juan County Commissioners decided in executive (closed door) session Tuesday, March 2, 2004 not to file an appeal regarding detached accessory dwelling units (ADUs). County Prosecutor Randy Gaylord said he was asked to initiate discussions with the Friends of the San Juans regarding a settlement of the issue.

The environmental group believes allowing detached guesthouses on every parcel of rural land in the county increases density. The FOSJ have prevailed at the Western Washington Growth Management Hearings Board and in Superior Court during the past four years. In a phone interview Tuesday evening, FOSJ Executive Director Stephanie Buffum said settlement discussions with the county "have been long awaited on our part." The group approached the county in June 2003 with offers to sit down and work towards a solution. No reply was received from the county commissioners, instead the county filed an appeal.

The county Commissioners have argued ADUs are play an important role in providing affordable housing and have historically been allowed in the county. The county regulations limit the ADUs to 1,000 sq. feet and they must share the same water and sewer system as the main house.

Efforts by the three county commissioners to have legislation passed in Olympia allowing detached ADUs not to be included in density calculations failed after the bills didn't make it out of committee.

Update on legislation regarding guesthouses

posted 02/09/04
Senate Bill 6624 which would allow detached guesthouses in San Juan County, was passed from the Senate Land Use and Planning committe to the Rules Committee for a second reading. Senator Harriet Spanel is sponsoring the legislation. Spanel and San Juan County Commissioner Rhea Miller testified in favor of the bill. Roger Collier or the Friends of the San Juans testified against the legislation.

House Bill 3028 did not make it out of committee. San Juan County Commissioners Darcie Nielsen, John Evans and Miller testified in favor that bill in Olympia on Monday, Feb. 2, 2004.

Commissioners testify in Olympia

posted 02/04/04
San Juan County Commissioners lobbied for House Bill 3028 on Monday, Feb. 2 and plan to testify in favor of Senate Bill 6624 on Thursday. The bills would allow a main house and a separate guesthouse on every parcel designated as rural or resource land in San Juan County. There are regulations limiting the size and other aspects of the guesthouses.

The county has lost appeals regarding accessory dwelling units.The Western Washington Growth Management Hearings Board has ruled and been upheld on appeal when it stated detached ADUs must be counted when determining density.

The BOCC discussed the issue during their Feb. 3, 2004 meeting. Commissioner Darcie Nielsen thought the testimony went well, despite the "unfortunate statements made at the end by the appellants." She called statements by Lynn Bahrych of Shaw Island and representatives of the 1000 Friends of Washington untruthful.

Bahrych showed photographs of detached accessory dwelling units (ADUs) built recently in the county. The group's arguments - detached ADUs increase density and should be counted as separate residences - "are silly," according to Nielsen. "Attached doesn't count, but five feet away a detached ADU counts. (The argument) makes these groups look silly," she said.

Commissioner John Evans said it was important to follow up Monday's testimony with emails to the legislators to thank them and to clarify the issue. Countering the "grandstanding done by the Duchess" was important, he said.

Commissioner Rhea Miller believes detached ADUs provide affordable housing options for county residents. She disagreed with Evan's assessment of 1000 Friends and the Friends of the San Juans. She felt the 1000 Friends hadn't received accurate information. "It is unfair to make a decision if they don't all have the same information," she said.

Nielsen said the chances of HB 3028 making it out of committee were slim since the committee chair opposed the bill. Nielsen noted several legislators own detached guesthouses in San Juan County and have interest in the issue. The deadline to get the bill out of committee is 10 a.m. Thursday, Feb. 4, 2004.

State Senators are scheduled to hear testimony on SB 6624 at 1:30 p.m. Thursday. The senate bill is written exclusively for San Juan County. The bill affects counties with populations less than 20,000 with only one incorporated town and a growth rate of more than 30 percent in a ten-year-period. Nielsen prefers legislation which covers more than just San Juan County.

Evans said, "My preference is not to single us out. This is a statewide issue." He believes the legislative action in 1993 (which supported accessory apartments in rural lands) was direct and positive. The new bills would provide clarification for the Growth Management Hearings Boards, he said.

The hearings board only cares about the landscape of Washington. They don’t care about the citizens." he said. " I am fired up and raring to go."

Nielsen said, "We need to make it clear, if we aren’t successful now. We will come back next year, even if I have to come back from wherever I am." Nielsen's term is up at the end of 2004. She is not running for re-election.

Commissioners to testify in Olympia

posted 02/02/04
San Juan County Commissioners plan to testify at the state legislature this week in support of Senate Bill 6624. The bill which affects counties with populations less than 20,000 with only one incorporated town and a growth rate of more than 30 percent in a ten-year-period, would allow detached accessory dwelling units in rural areas. More information on the bill is available on the State's Web site.

Under the county's Comprehensive Plan detached ADUs are allowed and not counted as a density unit. The Western Washington Growth Management Hearings Board has ruled they should count as a density unit. The county has lost an appeal to Superior Court on that point and has filed an appeal in the state Court of Appeals. They also decided to pursue a legislative remedy. State Senator Harriet Spanel sponsored the bill.

County to appeal guesthouse ruling

posted 01/21/04
After meeting behind closed doors, San Juan County Commissioners decided to appeal the Jan. 9, 2004 Thurston County Superior Court decision regarding detached accessory dwelling units. Judge Daniel J. Berschauer ruled detached ADUs must be counted as separate dwelling units. The appeal will be filed in the state Court of Appeals. A moratorium on ADUs has been in effect since November 2000.

The county Commissioners also agreed to pursue legislative relief. Commissioner Darcie Nielsen said a bill to allow detached ADUs in rural areas is being drafted in the legislature.

Guesthouses count as separate dwelling units

By Sharon Kivisto

updated 01/15/04 - posted 01/14/04
Detached guesthouses must be counted as separate dwelling units according to a Jan. 9, 2004 ruling by Thurston County Superior Court Judge Daniel J. Berschauer. San Juan County had appealed a March 20, 2003 Western Washington Growth Management Hearings Board ruling. The county claimed having a house and a detached accessory dwelling unit (ADU) on the same parcel counted as one dwelling unit and did not increase density in rural lands. There has been a moratorium on building detached ADUs since November 2000.

The county argued the hearings board must defer to the Board of County Commissioners. Berschauer stated, "Deference is only appropriate when there is consistency between the regulations and ordinances and the Growth Management Act. I conclude the (hearings) board's determination is consistent with the legislative policy of the Growth Management Act to protect rural lands." The judge noted the county's own ADU analysis report stated detached ADUs can affect rural character by causing structural density effects.

Berschauer ruled in favor of the county regarding another issue. The hearings board had added more restrictions to detached ADUs in resource lands. The judge said: "Specifically, my ruling reverses the Board's decision requiring that the ordinance limit the occupancy to certain classes of renters and further limiting the terms of the rental agreement."

The case also included an appeal by the Friends of the San Juans. The FOSJ lost on all points of its appeal which related to methodology, trend analysis and the SEPA determination. FOSJ also argued that attached ADUs increase density in rural areas. Berschauer rejected the Friends of the San Juans arguments.

Guest house appeal transferred

posted 06/19/03
San Juan County's appeal of the Western Washington Hearings Board decision regarding guest houses has been transferred to Thurston County Superior Court. The respondents in the case asked for the transfer noting previous appeals had been filed in Thurston County.

Guesthouse appeal filed

posted 04/21/03
San Juan County's appeal of the Western Washington Growth Management Hearings Board decision regarding accessory dwelling units (ADUs) was filed in San Juan County Superior Court on April 14, 2003. The county is asking the court to enter a judgment and decision reversing and vacating the Board's Order and to "award declaratory relief ... to put into effect the county's regulations regarding free-standing ADUs.

The hearings board ruled March 20, 2003 that detached ADUs (guesthouses) must be counted when determining density. There has been a moratorium on building ADUs since November 2000.

In the brief filed in Superior Court, the county argues that the county's proposed ADU regulations are consistent with Washington Housing Policy Act's goal of reducing housing costs and improving housing quality for people of all income groups. RCW 43.6A.215

The county states:

Free-standing ADUs do not "double density" or unlawfully increase the number of dwellings on a property... The county protects its rural and resource lands and limits the impact of ADUs on density by limiting the number, size, location and use of ADUs...The county also uses its definition of "family" to limit the number of people who can live on each parcel. Only one family can live on each parcel regardless of whether the parcel has only a single family residence or a single family residence and ADU.

The county Unified Development Code (UDC) defines family as: Individuals related by genetics, adoption, or marriage or a group of not more than eight unrelated individuals who share a single dwelling unit.

The county also argues that the hearings board " is required to defer to the Board of County Commissioners, as long as the BOCC's decisions are consistent with the requirements and goals of the GMA.

More information about the entire ADU issue is available on the county's WEB SITE

County will appeal
Growth Board guesthouse ruling

posted 03/25/03
San Juan County Commissioners voted unanimously March 25, 2003 to file suit in Superior Court to appeal the March 20, 2003 decision by the Western Washington Growth Management Hearings Board. The hearings board said detached guesthouses need to be counted as part of density calculations in rural areas. The BOCC met behind closed doors in executive session for 45 minutes prior to voting to sue.

Hearings board says no
to detached guesthouses

posted 03/21/03
The Western Washington Growth Management Hearings Board issued its ruling regarding accessory dwelling units in San Juan County March 20, 2003. "We find that the County's regulations, as they apply to freestanding ADUs in rural residential areas outside of Limited Areas of More Intense Rural Development (LAMIRDS) create a density that has consistently been determined to be sprawl by this Board and the Central Board... Allowing detached ADUs without counting them as a unit for the purpose of calculating the underlying density is not compliant."

The ruling means the moratorium on building detached ADUs has not been lifted. It has been in effect since November 30, 2000. The Board of County Commissioners will discuss the ruling and what actions the county will take at their March 25, 2003 meeting.

The hearings board said attached ADUs are allowed. It also found the new study the county did of impacts of ADUs was adequate.

The entire 49-page decision is available on hearings board Web site.

Guesthouse rules adopted

posted 12/04/02
Guesthouses are now officially called accessory dwelling units and transient rentals are now vacation rentals. Those were two of the changes to the county's Unified Development Code approved yesterday, Dec. 3, 2002 by the San Juan County Commissioners. A requirement that ADUs must be sited within 100 feet of the main house was dropped from the final draft.

The commissioners were concerned about the effect the 100-foot requirement would have on property owners who had already built guesthouses with the intent of someday building their main home. In those cases the original guesthouse wouldn't have been sited with the 100-foot rule in mind. Since there were six other criteria listed regarding siting, the three commissioners agreed to drop the 100-foot requirement.

That was the only change from the draft the BOCC worked on in November. Details are listed in previous stories.

The new regulations will be submitted to the Growth Management Hearings Board. If the new regulations are found to be in compliance with the Growth Management Act, the county could ask to have the two-year-old moratorium on ADU construction lifted.

Guesthouse rules set to be adopted Dec. 3

posted 11/08/02
New rules regarding accessory dwelling units (guesthouses) and transient rentals involve siting, management, water availability, and semantics. From now on transient rentals will be called vacation rentals and property owners who rent them out will be required to provide a contact number that is available 24 hours a day. The number does not have to be local.

ADUs on community water systems must have water availability equal to 1/3 of a residential unit. The current rules did not have a separate water availability requirement for ADUs. Commissioner John Evans asked, "Are we going to create problems by going this route for group B water systems?"

San Juan County Environmental Health Manager Mark Tompkins said, "I don’t think so, except for the Group Bs that have 10 (subscribers) and they all want to add ADUS. If they go over 15, they go to Class A." He said most of the Class B systems in that situation have been built to Class A standards. The commissioners all agreed to the water requirement.

Commissioners Darcie Nielsen and Rhea Miller favored the addition of a siting requirement for ADUs. A portion of the ADU must be within 100 feet of the main residence unless there are environmental or site specific reasons making it undesireable to do so. Evans was opposed to the requirement.

The commissioners did not want to place a limit on the number of ADUs. Instead they agreed the permit center and assessor's office would track the numbers. The permit center and the planning department would annually monitor the cumulative percentage of residentially developed parcels in rural and resource lands that have ADUs. When and if the number meets or exceeds 25 percent, the planning department would conduct additional environmental analysis.

The commissioners agreed to language changes to fix an anomaly. Evans said under the current rules if a person wanted to rent out an ADU, there had to be a permanent resident or lessee in the main house. The commissioners agreed they did not want to allow both the main house and the ADU to be rented as vacation rentals. But they did want to clarify wording, so a homeowner who just used the residence part-time could rent out the ADU. Senior Planner Rick Rutz said it could be rewritten to say the residence must be occupied by the owner or long term lessee or the unit must remain unrented.

The board briefly considered ways to limit the number of transient rentals in any one neighborhood. At Nielsen's suggestion, wording similar to the Town of Mendocino, California regulations was discussed. That municipality limits the ratio of owner occupied or long-term rentasl to transient rentals to 13:1. Rutz pointed out there are 52 distinct neighborhoods in the county where the rules could apply. The size ranges from seven to more than 250. Treating them all as one unit could end up with neighborhoods that are all transient rentals. If they were treated separately it would become an administrative burden he said.

Evans said, "There are so many things that can go wrong with trying to go down this approach. Someone could say: I’m going to get permits and never use them just to keep them out of the neighborhoods." Both Nielsen and Miller said they were concerned about saturation of neighborhoods but the solution was not workable.

The BOCC plan to adopt the changes to the Unified Development Code at their Dec. 3, 2002 meeting. Before the current moratorium on ADU construction is lifted the Growth Management Hearings Board has to find the new regulations put the county in compliance with the Growth Management Act.

BOCC: No cap on guesthouses

posted 10/21/02
San Juan County Commissioners turned down most of the planning department recommendations regarding guesthouses during a worksession Tuesday, October 15, 2002. A 25 percent cap on the number of parcels with accessory dwelling units was rejected. Requirements for water will be discussed at 2 p.m. November 5, 2002 after the BOCC hears from Envirnomental Health Manager Mark Tompkins.

In July 1999, October 2000 and in November 2001, the Western Washington Growth Management Hearings Board decided the county's policies and regulations regarding guesthouses failed to comply with the Growth Management Act. The county hired a consultant to compile facts and statistics about accessory dwelling units in San Juan County. A summary of the consultant's work, the planning commission and planning department staff's recommendations are available in a PDF version of the 76 page report on the county's Web site.

The impacts on density of allowing an ADU on every parcel in San Juan County was one of the issues to be addressed. At the October 15, 2002 hearing, County Commissioner Darcie Nielsen noted the report states: No other Washington county jurisdiction counts the first ADU on a parcel toward residential density.

Because San Juan County's Comprehensive Plan was appealed regarding the density impact of ADUs density and found to be non-compliant with the GMA, the county must address the issue. If no one had appealed the regulations, the county would not have had to deal with the issue according to planning department staff.

While other counties do not count ADUs towards density, they do have a variety of restrictions. They range from an outright ban on detached ADUs, to restrictions in certain land use designations, to use only by family members. Island County limits the number of permits for ADUs per year. A few counties have no restrictions. A list is included in the appendix of the county's report.

Under current rules, ADUs in San Juan County are limited to not more than 1,000 square feet and must share water and sewer systems with the main house. Rentals of the ADUs are allowed if the main house is used by the owner or a long-term leasee.

The BOCC disagreed with the suggestion that a 25 percent cap be placed on ADUs. Senior Planner RIck Rutz said, "The report recommends an upper limit of 25 percent of properties be allowed to develop ADUs without counting towards density."

Commissioner John Evans said, "I think it would be a nightmare. There is absolutely nothing that would keep the planning department from keeping a tally and doing their own percentages. They can alert future boards if the number starts approaching 25 percent."

Commissioner Darcie Nielsen didn't favor the cap either. She did like the siting and landscaping requirements. Evans and Commissioner Rhea Miller did not believe the landscaping rules were necessary.

Miller said she had lived in three different guesthouses during her first 15 years in the islands. She noted many people do not want to rent them out. She favored the regulations requiring the same water, sewer, driveway as the main residence.

The public hearing will resume at 2 p.m. Tuesday, November 5, 2002 for board deliberations only. The public testimony part of the hearing is over.

County to appeal guesthouse ruling

posted 08/08/01
County Commissioners John Evans and Darcie Nielsen voted to appeal the recent Thurston County decision on guesthouses to the state Court of Appeals. Commissioner Rhea Miller disagreed with the move calling it "a dead end and a waste of money."

County prosecutor Randy Gaylord advised the BOCC to take a two-prong approach to reach a quick resolution of the guesthouse issues. Immediately appeal the decision in order to preserve the county's rights and legal arguments and begin the reanalysis asked for by the Western Washingon Growth Management Hearings Board.

He suggested the county's Planning Department hire an outside consultant to assist in completing the guesthouse analysis. Other guesthouse issues could also be addressed at the same time. He noted several issues including transient rentals of guesthouses are on a list of items to be considered in the next round of comprehensive plan amendments.

If the hearings board accepts the revised analysis he said, the appeal would become moot and would be dropped.

In his ruling, Thurston County Superior Court Judge Wm. McPhee said, "The record establishes that the county's research was limited to an examination of the assessor's database, from which, in the absence of any hard data about guesthouses, it extrapolated an estimate that approximately one in four single-family residences in rural and resource land areas have a guesthouse. With no further research or data, the county predicted that the one in four ratio would continue for new construction, that the impact on density would be either 10 or 12 percent, and that no significant change in guesthouse policy was necessary."

Nielsen expressed frustration with the ruling. "They discredited the source of our analysis (the assessor's records)," she said. "What are we supposed to do use infra-red heat sensors to county how many people are in a guesthouse?"

County Deputy Prosecutor Alan Marriner said, "It is OK to use the assessor's database. The court disagreed with the way the assumptions are made."

Miller said, "I don't think they have trouble with the data. The question is whether they are being rented or not. That's where we have faulty or inadequate analysis. We could be allowing -- what the appellants charge -- doubling the density. We have to at least deal with the densities of these assumptions. "

Evans noted many homes in the county are not used as year-round residences. He suggested the county "consider second-homes as different than year-round homes in density."

Nielsen suggested gathering data from around the state regarding guesthouse regulations. University students could be used to collect the information. A final decision in San Juan County could "set a serious precedent for other counties," she said.

While the vote was split on the decision to appeal, the board agreed to ask staff to put together a plan for the second prong of the response. Gaylord, Marriner, Planning Director Laura Arnold, Permit Director Grant Beck and county Assessor Paul Dossett will develop a work plan. The BOCC will review the recommendations at 9 a.m. August. 22, 2001.

Court rules against county in guesthouse case

posted 07/28/01
Thurston County Superior Court Judge Wm. Thomas McPhee denied San Juan County's appeal of Western Washington Growth Management Hearings Board's (GMHB) ruling on guesthouses. The hearings board had told the county the impact of guesthouses on density must be considered. An order of invalidity concerning the guesthouse provisions of the county's Comprehensive Plan was issued in November 2000. The provisions allow a 1,000 sq. ft. guesthouse for every single-family residence (SFR).

San Juan County Commissioners can choose to accept the Court's analysis and do the planning required by the GMHB or they can appeal this decision to the Court of Appeals. San Juan County Prosecutor Randy Gaylord said he will discuss the options at the next BOCC meeting.

A moratorium on guesthouse construction went into effect Nov. 30, 2000. In August 1999, the hearings board told the BOCC :

"If the county wishes to allow guesthouses as an accessory dwelling unit for each SFR it must first do an analysis which includes existing conditions, a reasonable projection of future guest house additions and the need for them as well as the potential cost of public services and facilities for this new growth."

The county was given 180 days to complete the analysis. The deadline was extended and in November 2000 the hearings board again reviewed the guesthouse issue. The hearings board found:

7. The county staff analysis of the impact of guesthouses was incomplete and inadequate.
   
   
8. The planning commission recommended treating detached guesthouses as a separate residence.
   
   
9. Even though the incomplete staff analysis found a 12 percent impact on density, the BOCC took no action to revise densities in either rural or R/L (Resource Lands) designated areas, continuing to allow new guesthouse construction.
   
   
10. Challengers have sustained their burden of showing noncompliance and substantial interference with goals, 1, 2, 8, 10, 12, and 14 in the allowance of new guesthouse construction in rural and resource areas.
    
    

In its appeal to Thurston County Superior Court, the county argued the hearings board had no authority to review the guesthouse provisions since the county enacted them to comply with the Housing Policy Act. Judge McPhee ruled:

"No reasonable reading of this section (RCW 43.63A.215) suggests that the accessory apartment provisions are exempt from GMA review or that they are to be somehow separated from other regulations and controls that are governed by the GMA.

"...At the first stage of review, the Final Decision and Order (FDO) and Order on Reconsideration completed in 1999, the board focused on compliance with the process of planning (the complete absence of analysis) and did not address validity. Only at the second stage of review, the November 30, 2000 Order on Rescission, did the board address validity, and then only after noting that the near complete absence of the ordered analysis precluded a finding that the goals of GMA had been considered."

In the second part of the appeal the county argued that the hearings board was wrong when it said the analysis was incomplete. McPhee responded:

"The record establishes that the county's research was limited to an examination of the assessor's database, from which, in the absence of any hard data about guesthouses, it extrapolated an estimate that approximately one in four single-family residences in rural and resource land areas have a guesthouse. With no further research or data, the county predicted that the one in four ratio would continue for new construction, that the impact on density would be either 10 or 12 percent, and that no significant change in guesthouse policy was necessary.

"...Much of the argument offered in the county's brief seem designed to convince a reviewing court that the analysis order by the board was not necessary. Examples of these arguments include the extensive sections on the county's definition of family and the limiting conditions on guest home construction. However, a close reading of those arguments shows that they are based on the same type of conjecture and unsubstantiated assertion that caused the county's guest home provisions to be rejected by the board in the first place."

The judge also ruled against the the county's third argument -- that the ruling was arbitrary and capricious. "The board's decision was not arbitrary and capricious. Initially, the board only declared the guesthouse provisions to be noncompliant with the process of planning under the GMA. It was only after the board directed further specific analysis by the county and then determined that such analysis was incomplete and inadequate did the board further declare the guesthouse provisions invalid. This was not an arbitrary or capricious action."

The ruling was filed in Thurston County Superior Court July 23 and received in San Juan County Prosecutor's office July 26.

In a July 27 press release Gaylord said, "This is not the decision we wanted, but it is not a decision that forecloses any options. I am disappointed that the Court did not give more weight to the balancing of competing interests by the Commissioners,"

Part of guest house moratorium lifted

posted 04/10/01
Property owners who built their guest house before building their main residence are not affected by the guesthouse moratorium. The Western Washington Growth Management Hearings Board clarified its order of invalidity last week. This ruling allows the County to issue building permits in situations where the pre-existing guest house meets the standards for guest houses as defined in the UDC.

Commissioners to appeal guest house ruling

12/07/00
After staff briefed them in executive session Tuesday, Dec. 5, San Juan County Commissioners voted unanimously to appeal to Thurston County Superior Court part of a recent Growth Management Board Hearings Board order. The hearings board ruled the county's analysis of the impact of guest houses is inadequate. Commissioners contend the county's work on guest houses does meet Growth Management Act Requirements.

"We decided to get it over with and have the court tell us what to do," said Rhea Miller, chair of the Board of County Commissioners.

Commissioner Darcie Nielsen said the most recent ruling was "inconsistent with previous hearings board decisions." She said the issue is not about construction of guest houses but the use of them: long-term versus short-term rentals.

"This is the first stage of what appears to be a never-ending process," said Commissioner John Evans.

He was irked by the hearings board ruling. Evans said the hearings board members were willing to open up issues brought by a dozen people, and "seem perfectly willing to ignore all the public testimony and all the work everybody else has done, including the county commissioners."

Commissioners will ask the hearings board to reconsider their invalidation of the redesignation of four parcels. The hearings board ruled the county did not follow its own public process, which is set in its Comp Plan, in redesignating 10 parcels. Commissioners contend the four parcels received adequate public review.

"I felt all 10 were perfectly defensible," Nielsen said. She noted omissions and errors may be corrected when responding to hearings board orders.

The BOCC also directed the county Planning Department to start the formal redesignation process for the other six parcels.

Moratorium imposed on guesthouse construction

12/02/00
Anyone wishing to build a guesthouse in San Juan county will have to wait. As of Nov. 30, the county permit center will not process permits for the construction or modification of attached or detached guesthouses. Only permits which were complete on that date will be processed. In response to the Western Washington Growth Management Hearings Board order of invalidity, the county has imposed a moratorium on guesthouse construction.

According to county Prosecutor Randy Gaylord the ban is in effect until the invalidity order is lifted by the hearings board or reversed by a court.

Guesthouse provisions and redesignations ruled invalid by hearings board

By Sharon Kivisto

posted 12/01/00
Redesignation of 1,000 acres of resource land and inadequate analysis of the impact of guest houses triggered a strong reaction from Western Washington Growth Management Hearings Board. The county had asked the board to lift the orders of invalidity issued in July, 1999. After reviewing the county's revised Comp Plan, the hearings board issued new orders of invalidity.

In its Nov. 30, 2000 ruling the hearings board said:

Provisions of the 2000 Ordinances that redesignate resource lands and provisions of the UDC that allow new guesthouse construction in rural or resource areas are determined invalid.

The county had been given 180 days to address the July, 1999 ruling. After asking for two extensions, the county submitted its revised Comp Plan to the hearings board on Oct. 2, 2000. The county was supposed to address the four areas of invalidity, review the affordable housing element and the impact of guesthouses on density.

In its ruling, the hearings board said:

Superficially the four actions that the County took relating to invalidity would appear to remove the substantial interference determinations of the FDO (Final Decision and Order). The County did adopt a minimum 5-acre density in the areas surrounding Friday Harbor, adopted a minimum 5-acre density throughout the rural area, adopted a minimum 10-acre density for agricultural resource land (ARL), and a 20-acre minimum density for forest resource land (FRL), and adopted a minimum 5-acre lot size surrounding resource lands except in limited circumstances involving Lopez Village and Eastsound, where a 50-foot buffer was adopted. Had the County stopped at that point, we may well have found that the County had sustained its burden of showing that the actions "in response to the FDO" removed substantial interference.

The hearings board took exception to the BOCC's redesignation of almost 1,000 acres of resource land.

"The County bypassed its previously adopted process, provided virtually no public participation opportunities, and made the redesignations without any supporting evidence in the record. The County further adopted a new policy to review all resource lands designations over the next three years. It is contrary to the GMA to redesignate some 3 percent of the County's total resource lands piecemeal through a remand process that was not required by the FDO to address any resource land designation issues.

The county's lack of hard data on guesthouses and disregard of the Planning Commission's recommendations concerned the three members of the hearings board.

...In addition to what San Juan County did in response to the finding of noncompliance and invalidity, we are concerned about what the County did not do during the extensive remand period with regard to the guesthouse issue.

...The planning commission determined that "detached guesthouses have greater negative environmental impacts that attached guesthouses" and ...determined that "the conclusions developed by the County (staff) for the use of guesthouses are based substantially on conjecture." The PC concluded that detached guesthouses functioned much as a main residence, had the same impacts as a principal residence and thus should be treated as a "separate dwelling unit" for purposes of density analysis.

...We find that the County's current policies and regulations regarding guesthouses continue to fail to comply with the Act. In addition the UDC provisions which authorize construction of new guesthouses in the rural and/or resource designations of San Juan County substantially interfere with Goals 1, 2, 8, 10, 12, and 14. While we have serious questions about the impact of both long-term and short-term rental of guesthouses in rural and/or resource lands, we will address that issue at the January 17, 2001 hearing.

To comply with the Growth Management Act the county must:

1. Redesignate resource land only after complying with previously adopted county processes; and
   
   
2. Withing 180 days, adequately analyze the effects of new guesthouse construction in rural and resource areas.

The hearings board will hold another hearing on Jan. 17, 2001 in Friday Harbor.