Common Sense Alliance filed a Prehearing Brief with the Growth Management Hearings Board last week spelling out its objections to the County’s Critical Area Ordinances (CAO. The CSA's arguements center on the how the CAO is applied to Wetlands and Fish and Wildlife Habitat Conservation Areas in San Juan County.
The appeal, focusing on what the CSA considers a variety of defects in the County's process and the adopted Ordinances, asks the Growth Management Hearings Board to return the ordinances to the county for further review in compliance with the requirements of the Growth Management Act.
CSA has spent four years encouraging the County to adopt Ordinances that are simple to administer, easy to understand and in full compliance with the laws governing the Growth Management Act and the required update of all of the county's Critical Area Ordinances.
Believing the ordinances adopted in December 2012 fall far short of that objective, the CSA filed this appeal. The most pertinent list of problems they see are:
1. Failure of the County to specifically designate which properties in the county are subject to the restrictions imposed on Fish and Wildlife Habitat Conservation Areas (FWHCA) under the following two-part test established by the legislature and state agencies. FWHCAs must be:
a. Areas that serve a critical role in sustaining needed habitats and species for the functional integrity of the ecosystem; and
b. Which, if altered, may reduce the likelihood that the species will persist over the long term.
CSA says the county refused to follow this mandate, choosing instead to base its regulations on any area with which "priority species" may have "primary association." The CSA argues the terms are so vaguely worded as to make property-specific determinations impossible for property owners to understand.
The county has two choices according to the appeal:
Based on the very superficial maps showing where habitat might be found literally in all waters of the islands, including Deer Harbor, East Sound, Fisherman’s Bay, Rosario, Roche Harbor, Sucia and Matia Islands, among others, are all critical areas regardless of specific shoreline conditions. This approach violates the legislative mandate that Counties designate shoreline critical areas based on the “two- part test” quoted above.
Alternatively, and the Ordinance does not make this clear, after a development application is filed, planning department personnel would make an evaluation of “priority species” and “primary association” on each site (with no more guidance than that). This leaves the property owner subject to the whim of personal prejudices of a given planner in violation of the legislative mandate that the “legislative authority” of the County be the one responsible for classifying and designating a specific property a critical area. This approach also poses a problem for the potential purchase or sale of waterfront property because before a development application has been processed, an owner will not know whether the 200 foot water quality buffer and the 110 foot tree protection zone apply or not.
2. Failure of the County to apply water quality buffers and tree protection buffers, both as to wetlands and to shorelines, based upon project-related impacts as opposed to the simple presence of a wetland or shoreline, regardless of actual conditions or need.
a. Statutes and Court cases say that such measures must be tied to project specific impacts not simply an ordinance mandate, such as that adopted by the County; and
b. Court cases also say that the burden of proof to establish the need for buffers and open space for environmental purposes falls on the government based on “reasonable necessity” tied to the impacts of a specific project and may not be presumed as the County has done in the Ordinances.
3. Failure of the County to abide by its own Comprehensive Plan, which seeks a balanced approach between regulation and mitigation, allowing reasonable use of property consistent with environmental protection.
a. The current approach prohibits property owners from seeking to achieve the “no net loss” test built into state law using approaches other than the water quality/tree protection buffer approach, which are built into the current Ordinances, regardless of cost or consequences; and
b. The County now prohibits all uses not specifically listed, regardless of whether those uses would detract from the environmental quality of the area.
It is CSA's opinion that the Ordinances, as written, are unlawful and unenforceable. The property owners of San Juan County have demonstrated themselves to be good stewards of our environmental resources. We deserve Ordinances that are easy to understand, straightforward to administer and effective in dealing with real problems without mandating cures where no harm has been shown.
The entire hearing brief can be viewed here.