BEFORE THE WESTERN WASHINGTON GROWTH
MANAGEMENT HEARINGS BOARD
EVERGREEN ISLANDS, et al., ) ) No. 00-2-0046c
Petitioners, ) (General Issues)
)
v. ) FINAL DECISION ) AND ORDER
SKAGIT COUNTY, )
)
Respondent, )
)
and )
)
AFFILIATED HEALTH SERVICES, et al., )
)
Intervenors )
________________________________________________)
On August 21, 2000, we received a petition for review (PFR) from Friends of Skagit County (FOSC) (Case #00-2-0039). On September 14, 2000, we received a PFR from the City of Anacortes (Case #00-2-0041). On September 18, 2000, we received a PFR from Evergreen Islands (Case #00-2-0043). On September 25, 2000, we received a PFR from Jim Bender (Case #00-2-0046). On September 25, 2000, we received another PFR from FOSC and Gerald Steel (Case #00-2-0050). All the petitions challenged Ordinance #17938, general issues not pertaining to categories of issues in Cases #00-2-0047c, #00-2-0048c, #00-2-0049c, and #00-2-0050c. On October 4, 2000, a consolidation order of the above cases was entered.
Intervention was granted to Affiliated Health Services; Bouslog Investments, LLC and JBK Investments, LLC; Del Mar Community Service, Inc.; Randy and Katie Previs and Seavestco, Inc.; Crown Pacific Limited Partnership; Skagit County Public Hospital District 2 d/b/a Island Health Northwest; Association of Skagit County Landowners (ASCL); Carol Ehlers; Friends of Skagit County; Skagit River Resort, LLC and Donald Clark; and Towns of Concrete and Hamilton.
On December 20, 2000, a hearing on the merits was held at the Skagit County Administration Building in Mount Vernon, Washington.
Pursuant to RCW 36.70A.320(1) Ordinance #17938 is presumed valid upon adoption. The burden is on Petitioners to demonstrate that the action taken by Skagit County is not in compliance with the requirements of the Growth Management Act (GMA, Act). RCW 36.70A.320(2).
Pursuant to RCW 36.70A.320(3), a Board “shall find compliance unless it determines that the action by [Skagit County] is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of [the GMA].” In order to find the County’s action clearly erroneous, we must be “left with the firm and definite conviction that a mistake has been made.” Department of Ecology v. PUD 1, 121 Wn.2d 179, 201 (1993).
Since over 80 separate issues were
raised by Petitioners in this consolidated case, we will discuss the issues by
topic rather than by separate issue numbers.
Further, issues have been raised and briefed that will not be discussed
in this decision. We find that,
except as to the categories of issues set forth in the remainder of this order,
Petitioners have failed to sustain their burden of showing that Skagit County
has failed to comply with the Act.
We compliment County staff, consultants, Planning Commission (PC) and Board of County Commissioners (BOCC) for the excellent job they have done creating a thorough record leading up to adoption of Ordinance #17938. Even though we have found noncompliance in some areas, the quality of the record is exemplary.
Lot
Aggregation and Legal Lot of Record
In its recorded motion and supplemental findings of fact (Ex. 366) Skagit County set forth its rationale for eliminating its aggregation requirements:
“369. Significant changes have been made to the standards that determine whether a substandard (smaller than the minimum lot size for a lot within the present zoning district) lot of record can be developed. History of ownership requirements have been removed and replaced with objective performance based criteria that focus on health and safety considerations. Aggregation of substandard lots is no longer required. There is no longer a need for the term “Lot of record, legal.” The changes, which for the first time include minimum lot sizes requirements, should reduce the total number of potential buildable lots. The present law (enacted in 1966) has been difficult to administer and enforce. Aggregation violations are discovered at the time a development application is submitted and lot certification requested. At that time, the law restricting development of illegally divided lots is virtually unenforceable. This is partly because of “due process” considerations as well as the impact of RCW 57.18.210, enacted by the State in 1969. That RCW contains an “Innocent Purchaser” exception (see Finding #382) to the general prohibition denying development permits’ on lots divided in violation of State and Local law. The 1997 CP and Development Regulations eliminated “aggregation” for legal lots of record acquired after June 1, 1997. These changes even the playing field for properties acquired before that date. Lots of record would still need to meet minimum size requirements based on the health and safety requirements found in the On-site Sewage and Concurrency regulations before development could proceed.
370. The PC finds that the revised proposal for allowing development on substandard lots of record will not result in an increase in the amount of development than would have been otherwise allowed under the previous lot certification process. The currently proposed process allows development on formerly platted lots, even if those lots do not meet the dimensional requirements of the current zoning, as long as Health Department septic dimensional requirements are met. Formerly, substandard lots were required to be “certified,” meaning it had to meet one of several criteria that demonstrated that it either was legally platted or at least segregated in compliance with the zoning requirements in effect at the time of the lot’s creation. In practice, the Planning and Permit Center has found that there are almost no cases where a lot was not certified. The lot certification process is a time intensive and costly process which provides practically no benefit since it is very rare (perhaps once a year) that a non-certifiable lot is found. Experience has shown that changing to a process which essentially assumes the certificability of each lot will not result in an increase in the number of formerly platted substandard lots available for development.
371. The revised lot of record provisions are supported by CWPP 6.2.”
The City Anacortes charged that the County’s elimination of development regulation (DR) requirements for lot aggregation would result in significant rural sprawl on South Fidalgo Island, contribute to the urbanization of this area, and inevitably draw the City into the later, costly provision of remedial urban services.
Evergreen Islands did an intricate study of Fidalgo and Guemes Islands showing the number of new lots that theoretically could be created after aggregation was rescinded. It claimed that dropping the aggregation requirement would significantly increase the density potentials for those Islands and would contribute to a new pattern of low-density sprawl.
FOSC claimed that suspension of lot aggregation would vest thousands of urban-sized lots in the rural area and natural resource lands (NRL) - more than 4,000 in NRL alone. The AGO 1998 No. 4 Opinion said that the County may or may not require aggregation. It said nothing about the County’s right to repeal an aggregation ordinance. FOSC further contended that GMA does not allow discontinuance of an aggregation ordinance when that discontinuance would allow thousands of lots to vest outside of urban growth areas (UGAs) that would not have been allowed previously. FOSC asked us to find noncompliance and to give the County only five days to readopt its old aggregation ordinance. FOSC further asked for a finding of invalidity.
The County responded:
(1) The aggregation ordinance required that substandard lots platted prior to the adoption of the County’s subdivision ordinance in 1965 had to be combined with adjacent lots in the same ownership to satisfy the minimum lot size requirement.
(2) In actuality, neither the Planning and Permit Center nor the Assessor ever combined the substandard lots. Therefore, by the year 2000, the ordinance was unenforceable.
(3) RCW 58.17.210 protects the rights of all “innocent purchasers for value without actual notice” of lots which were illegally segregated without complying with state or local subdivision requirements. The Courts interpreted this provision as simply giving the innocent purchaser the right to build on the illegally-subdivided land. It also opened a loophole for a development permit if the County found “that the public interest will not be adversely affected thereby.” The result was that development permits routinely followed illegal segregation. (Ex. 0014).
(4) AGO 1998 No. 4 Opinion reaffirmed a county’s right to regulate “undeveloped” pre-1937 recorded plats. Where plats are partially sold and/or partially developed (all plats in Skagit County), jurisdictions should establish substantive standards to handle those situations. The County has done that through its adoption of SCC 14.18.000(9) and by establishing performance-based criteria for health and safety at SCC 14.16.850(4) to determine whether a substandard lot of record can be developed.
(5) When the County attempted to take a hard line on an illegally segregated lot the Court reversed the County decision on an “innocent purchaser” argument (Ex. 0473).
(6) There was extreme administrative complexity with the former ordinance. The applicant was required to supply a title report not only on the applicant’s substandard lot but on all adjacent lots back to 1965.
(7) The aggregation ordinance did not accomplish its purpose of reducing the development of substandard lots. Instead, it was a burdensome imposition on all applicants and on County staff.
(8) Even if County staff denied a variance from the ordinance, the hearings examiner uniformly granted appeals based on equity, due process, and/or innocent purchaser provisions of RCW 58.17.210.
(9) The aggregation ordinance needed to be fixed. The County chose a new system which provided regulations that were more conservative than the previous, unenforceable code and which would not result in more rural density.
(10)Under SCC 14.16.850(4)(d), lots of record are developable, even if they are substandard size, if they comply with (a) all the requirements for a development permit (including on-site sewage requirements under SCC 12.05) and (b) concurrency requirements (under SCC 14.28).
(11)These two requirements impose restrictions on development of substandard lots that are ascertainable, objective, and assure that development will be undertaken with due consideration for public health considerations and GMA’s concurrency requirements.
(12)Petitioners have not shown that the new approach will allow more developable lots than would have been developed under the prior, unenforceable, lot aggregation ordinance.
(13)Unlike the previous ordinance, SCC 14.16.850(4) prohibits septic systems on substandard lots regardless of ownership of contiguous lots; reducing, rather than proliferating, the development of urban-sized lots.
(14)SCC 14.16.850(4)(b)(ii) requires compliance with the annual concurrency review of required services.
(15)Citizen complaints about the unfairness and arbitrariness of the old lot aggregation ordinance are replete in the record.
(16)Development should be triggered and governed by ascertainable criteria, consistent with public health considerations, not by blind adherence to arbitrary dates and ownership patterns.
(17)The County balanced many factors, including local considerations based upon over 30 years of administering the old code. RCW 36.70A.3201 directs Growth Management Hearings Boards to give increased deference to regulations adopted based on such local considerations.
Intervenor Previs supported the County’s arguments and underscored several:
(1) GMA must be strictly construed.
(2) Petitioners failed to meet the clearly erroneous burden.
(3) The County’s old aggregation ordinance was a “poster child” of a Goal 6 violation. GMA requires that citizens shall be protected from arbitrary and discriminatory action.
(4) The old aggregation ordinance did not focus on the goals of the Act but solely focused on the identity of the property owner both spatially and temporally.
(5) If in the chain of title there was common ownership, lots must be aggregated whether the current owners knew of its history or not.
(6) If individual small lots were owned by different people, there were no performance based standards. Now no one can build on a lot smaller than 12,500 square feet; before the owner of an individual lot could.
(7) The County has replaced those arbitrary standards with objective performance based criteria. None of the Petitioners has shown those criteria to be flawed.
(8) Evergreen Islands’ analysis was theoretical and very flawed: no determination was made of actual feasibility of lot creation considering things like topography, critical areas, soils and placement of the current residence on the lot. Also, no consideration was given to the number of innocent purchasers and those who had already checkerboarded their property who would be able to develop in spite of the old ordinance.
(9) Restoration of the old, unfair, unworkable system makes no sense because of a huge County staffing problem and severe hardship to citizens for little or no gain.
(10) Petitioners have not shown that this change will actually increase density.
(11) The County has put a lot of effort into developing this solution and the
Board should give deference to the County.
Intervenor ASCL reinforced the above responses pointing out specific examples of flaws which made the Evergreen Island analysis misleading.
Intervenor Del Mar also supported the County and other Intervenors’ arguments.
Board Discussion
Intervenor
ASCL supported the County’s arguments.
It underscored that in order to actually develop the urban reserve
areas, a CP amendment is required. This
is not an easy process and could be appealed to the Board. If open space is required to be in perpetuity,
how will that work for cities which may need to expand in the future?
Board Discussion and Conclusion
We
have previously found the County’s CP CaRD policies to be in compliance with
the Act. Well designed cluster
development can be an excellent tool to preserve rural character, protect
critical areas and resource lands, and develop more efficiently. If the urban reserve provision in the DRs
were limited to lands near UGAs which had been studied and determined to be the
best areas for future urban growth, this provision would implement the CP CaRD
policies and comply with the Act. This
determination would have been the County’s to make after consultation with the
Cities, a SEPA review of alternatives, and full public participation.
However,
if that is the County’s intent, the process needs to be redone, in cooperation
with the Cities, and the DRs need to be clarified to reflect that intent. As written, the urban reserve applies
throughout the County and will be implemented at the property owners’ discretion
rather than the County’s. This does not
comply with the Act.
Fidalgo Island Sub-Area Plan
Evergreen
Islands contended that the County had already decided to urbanize Fidalgo
Island against the will of the County’s current inhabitants. Evergreen further asserted that the proposed
study was merely a tool in the County’s plan to urbanize the fragile island
environments.
Anacortes
agreed that it appeared quite obvious that the County intended to urbanize
Fidalgo Island. Anacortes stated in its
opening brief:
“However,
without the benefit of sub-area planning, joint City/County planning, and a
SEPA review of alternatives, the County has jumped directly into a set of
development regulations that will inevitably lead to urbanization of South Fidalgo Island.”
Anacortes
further contended that removal of aggregation requirements and reserving
cluster remnant parcels for future urban growth, as adopted in Ordinance
#17938, were two giant steps in that urbanization process. The City further pointed out that there was
no concrete commitment to, or timeframe for, the sub-area plan in the CP. Environmental studies done before the CP was
adopted demonstrated how difficult and costly it would be to serve that area with
urban services. Anacortes contended that
the County had “let the horses out of the barn prematurely.” The City therefore asked us to require that
the County complete a subarea plan to determine the Island’s suitability for
more intense development before more density is allowed on Fidalgo Island.
The
County responded:
(1)
Petitioners’ fears
of an urbanized Fidalgo Island, as a result of the sub-area planning process,
are unfounded and premature.
(2)
Evergreen Islands
has failed to demonstrate how the future planning process to more carefully assess planning and
environmental issues on Fidalgo Island is, at this stage, inconsistent with
GMA.
(3)
The CP language
was specifically amended, at the request of Petitioners and others, to make it
clear that this language was not intended to predetermine any particular
outcome regarding possible future densities.
(4)
This policy
language simply recognizes that a cluster development approach might, in fact,
be a better long-term strategy than a uniform pattern of 2.5, 5, or even
10-acre lots. It may make sense to
minimize large-lot sprawl and encourage clustering. Nothing can be more dense than the underlying RI density.
(5)
One of the main
purposes of a Fidalgo Sub-Area Plan is to assess the very best strategy for
preserving rural character, protecting the environment and accommodating any
future urban growth, if appropriate.
(6)
Petitioners will
have the opportunity to participate in the sub-area planning process and appeal
to the Board if they feel the result fails to comply with GMA.
Board Discussion and Conclusion
We
agree with the County and Anacortes that a careful sub-area assessment of
topography and environmental constraints to development should be done. Developing the best strategy for preserving
rural character, protecting the Island’s fragile environment, and assessing its
suitability for future urban growth are crucial before more intense development
is allowed to occur. It is unfortunate
that the County may have increased landowners’ expectations of future urban
development in rural areas by applying the CaRD urban reserve designation and
removing aggregation requirements on the Island before this study has
been done.
The
County must set a specific timetable for, and firm commitment to, the timely
completion of this Plan. The Fidalgo
Sub-Area Plan must be completed and found to be compliant before the
CaRD urban reserve development or any other increase in density are allowed to
occur on the Island.
Amendment to Annexation Requirement in the CP
The
Cities complained that despite our previous rulings the County has made it much
more difficult for cities to annex within their UGAs by adding tough new
standards in its CP:
“Contemplated
changes in municipal…boundaries through annexation …are to assure that natural
neighborhoods and communities are maintained; logical service areas are created
and preserved; and, normally (sic) irregular boundaries are avoided.” CP 7-11, Policy 7-A-A.2.
The
Cities quoted our compliance order regarding short-term stipulated issues in Abenroth:
“…that
(1) “That which is urban should be municipal; (2) implicit in RCW 36.70A.110(4)
is the principle that ‘incorporations and annexations must occur; and (3) one
of the three ‘fundamental purposes’ of CPs is to ‘achieve the transformation of
local governance within the UGAs such that cities are the primary providers of
urban services.’”
The
Cities further argued that concurrency within municipal UGAs in Skagit County
is the responsibility of the Cities.
The objective within UGAs is for annexation to occur before urban
development. The County’s actions do not reflect the intent of the GMA or of
this Board’s previous orders that transformance of governance must occur.
The
County responded that adoption of Policy 7A-4.2 does not establish tough new
criteria for annexation. It merely discusses key factors that joint planning
should be based upon. It is nearly a
verbatim restatement of statutory Boundary Review Board (BRB) objectives.
Board Discussion and Conclusion
Whether
or not these are “tough new criteria,” this is the first time the County CP
includes a set of pre-GMA BRB annexation criteria for within UGAs. As we have stated in previous decisions, UGA
provisions (including non-municipal UGAs) must provide for efficient phasing of
urban infrastructure and transformance of governance.
Annexation
within UGAs should occur as soon as possible and before urban development
occurs. The interim solution of County
implementation of City DRs within municipal UGAs is excellent, but must be
temporary. Under the GMA, within the
municipal UGAs, logical boundary and other factors listed in the CP amendment
are not relevant, since efficient phasing of infrastructure is key, not the
interim shape of the city limits boundary.
In
order to achieve compliance, the County must change its amendments to CP Policy
7A-4.29a to make it clear that annexations are to occur as soon as feasible
within municipal UGAs to facilitate the efficient phasing of infrastructure and
development.
Vesting Provisions
FOSC
claimed that the County’s new vesting provisions (SCC 14.02.050) did not comply
with the clear regulation requirements of CPP 7.4 and the GMA. They also did not comply with the internal
consistency, predictability, public participation, concurrency, and adequacy
requirements of the Act. They also
violate Goals 6 and 7 of the Act and the CPPs.
Vesting is too easily granted and the public is not properly notified of
the future uses that may be vested. Unplanned, uncoordinated growth in
violation of RCW 36.70A.010 will result.
FOSC further contended that this vesting regulation should be found
invalid for substantial interference with the fulfillment of Goal 2 which
requires the County to reduce the inappropriate conversion of undeveloped land
into sprawling, low-density development.
The
Cities also challenged the new vesting provisions. They claimed that the County could not use recent Court decisions
as an excuse for its overly generous vesting provisions. Noble Manor Company v. Pierce County,
133 Wn.2d. 269 (1997) said that without specific vesting rules, anything
goes. However, with specific rules,
that which is vested is only that which complies with those rules.
The
County responded that recent case law has established generous vesting
rules. SCC 14.02.050 is merely an
attempt to codify vesting case law, and is therefore, within the range of
choices available to the County under GMA.
The
County contended that many of FOSC’s concerns are addressed in 14.02.050:
“(2) If a permit application vested under
Subsection (1), above, is approved, and that permit approval contemplates 1 or
more future uses or permits on the property that are subject to that permit
approval, then:
(a) If the permit approval contains a detailed
description of the uses, including a detailed site plan drawn to scale, specifying
the location of all buildings and improvements to be constructed in conjunction
with the use(s), and such site plan is consistent with all laws and regulations
in effect at the time the original application vested, then all permit
applications in connection with the future uses(s) are vested to the laws and
regulations in effect at the time of the vesting or the original permit
application, and laws and regulations enacted after that vesting date shall not
apply to the future use(s) or any permit applications filed in connection
therewith;
(b) If the development approval does not describe in
detail all future uses or does not contain a detailed site plan, drawn to
scale, specifying the location of all buildings and improvements to be
constructed in conjunction with the future uses(s), then the future use(s)
shall be subject to all later enacted laws and regulations in effect at the
time of the vesting of any required application for permits in connection with
the future use(s).
Subject
to the provisions of Subsection (4) below, it is the intention of this
Subsection that, consistent with other Federal, State, and County regulatory
requirements, an Applicant be able to vest his future development rights to the
level of detail the Applicant chooses to show in the application documents.”
The
County concluded that because this provision is consistent with vesting law,
Petitioners have failed to show either noncompliance or substantial
interference.
Board Discussion and Conclusion
Even
though we are concerned about the possible future impact of the County’s
vesting ordinance, we find that the ordinance does reflect current Appellate
Court decisions and therefore was within the range of choices available to the
County under GMA.
Rural Character
FOSC
accused the County of continuing to allow pre-GMA uses and practices which fail
to protect rural character. GMA was
adopted to change rural uses and practices not to allow the County to cling to
those harmful pre-GMA ways by defining them as “the rural character in Skagit
County.” FOSC further charged that the
County’s definition of its rural character is, in effect, “really bad
planning.”
The
County responded that RCW 36.70A.070 instructed the County to assess its own
local circumstances and define its own rural character. The County has
developed an extensive and exhaustive record showing local circumstances, what
Skagit County considers its own rural character to be, and has taken action to
preserve that desired rural character. The County has not maintained “business
as usual” through its definition of its rural character. Allowed uses and practices have been greatly
curtailed. The majority of challenged practices now are regulated by special
use permits. The County further
maintained that it should be complimented for its hard work in protecting rural
character, not chastised.
Board Discussion
Recently we have had extensive hearings in Skagit, Mason, and Lewis counties relating, in whole or in part, as to compliance with RCW 36.70A.070(5). The following is an analytical framework setting forth the standards established by the Legislature for the rural element of the CP and/or DRs. We will hereinafter refer to RCW 36.70A.070(5) simply as (5) along with appropriate subsections as (a), (b), (c), (d), and (e). We will refer to the definitions in RCW 36.70A.030 solely by their subsection number.
In analyzing (5) we start with the definitions established by the Legislature.
“(15) “Rural development” refers to development outside the urban growth area and outside agricultural, forest, and mineral resource lands designated pursuant to RCW 36.70A.170. Rural development can consist of a variety of uses and residential densities, including clustered residential development, at levels that are consistent with the preservation of rural character and the requirements of the rural element. Rural development does not refer to agriculture or forestry activities that may be conducted in rural areas. (Emphasis supplied).
We note that (5)(b) requires a variety of densities and uses rather than allows them. Some essential standards are shown by this definition.
(1) No UGA nor designated resource land (RL) is to be included as part of the rural element. Additionally, agriculture or forest activities conducted in rural areas are not considered to be a part of rural development.
(2) Development in the rural area can allow a variety of uses and residential densities including clusters. However, such uses and densities must be only at levels that are:
a. consistent with rural character (as defined in (14)) preservation; AND
b. consistent with the requirements of (5).
“(14) “Rural character” refers to the patterns of land use and development established by a county in the rural element of its comprehensive plan:
(a) In which open space, natural landscape, and vegetation predominate over the built environment;
(b) That foster traditional rural lifestyles, rural-based economies, and opportunities to both live and work in rural areas;
(c) That provide visual landscapes that are traditionally found in rural areas and communities;
(d) That are compatible with the use of the land by wildlife and for fish and wildlife habitat;
(e) That reduce the inappropriate conversion of undeveloped land into sprawling, low-density development;
(f) That generally do not require the extension of urban governmental services; and
(g) That are consistent with the protection of natural surface water flows and ground water and surface water recharge and discharge areas.” (Emphasis supplied).
Several characteristics and standards are set forth in this definition. The patterns of land use and development ultimately developed by a County in its CP must involve certain characteristics.
(1) The natural environment must predominate over the built or manmade environment (See WAC 197-11-718).
(2) Traditional rural lifestyles including rural-based economies and opportunities are to be fostered.
(3) Visual landscapes, those traditionally found in rural areas, must be provided.
(4) The patterns of land use and development must be compatible with the use of the land by wildlife and compatible for fish and wildlife habitat.
(5) Sprawling, low-density development must be reduced.
(6) Generally the extension of urban governmental services are prohibited.
(7) The land use patterns must be consistent with the protection of surface water flows and ground water and surface water recharge and discharge areas.
“(16) “Rural governmental services” or “rural services” include those public services and public facilities historically and typically delivered at an intensity usually found in rural areas, and may include domestic water systems, fire and police protection services, transportation and public transit services, and other public utilities associated with rural development and normally not associated with urban areas. Rural services do not include storm or sanitary sewers, except as otherwise authorized by RCW 36.70A.110(4).” (Emphasis supplied).
Certain characteristics are shown in this definition.
(1) Storm and sanitary services are prohibited, except to alleviate an existing health or environmental hazard.
(2) This definition and the definition of urban services found in (19) both include domestic water systems, fire and police protection, and transportation and public transit services. The distinguishing characteristic is that rural services must be “historically and typically delivered at an intensity usually found in rural areas.” Urban services are those that are provided “at an intensity historically and typically provided in cities,….”
The Legislature often uses the terms “historical” and “traditional” to define the essence of rural. As noted later such terms are intended to encompass more than what was present in the rural areas of a county before GMA.
Subject to the definitions, the Legislature requires counties to include a rural element in the CP outside of UGAs and RLs. The Legislature recognized in (5)(a) that local circumstances are an important consideration “in establishing patterns of rural densities and uses.” This provision is consistent with the wide discretion allowed to local governments under the GMA. RCW 36.70A.3201.
However, that discretion was not intended by the Legislature to be unbridled. RCW 36.70A.3201 involves discretion that is “consistent” with the goals and requirements of the Act. (5)(a) requires a county (through a written record) to “harmonize the goals” and “meet the requirements” of the GMA. The language of (14), (15), and (16), emphasize that the patterns of uses and densities must be those which are “historical” and “typical” to rural areas. The Legislature did not say that whatever existed in a particular county on June 30, 1990, automatically became the existing rural character of that county. The Legislature has clearly said that the rural element must have parameters involving generalized historical and traditional “lifestyles” and “visual compatibility,” as well as the predominance of the natural environment, compatibility with wildlife and fish, protection of waters and the reduction of “sprawling, low-density development.”
(5)(b) requires that the rural element include rural development (15), forestry and agriculture in rural areas. A variety of “rural densities, uses, essential public facilities and rural governmental services” must be provided. To achieve such “a variety of rural densities and uses” clustering and other “innovative” techniques may be included. Those innovative techniques, however, must involve “appropriate rural densities and uses” that are not characterized by urban growth (17) and that are “consistent with rural character” (14).
Additionally, (5)(c) includes other requirements that must be included in the rural element “that apply to rural development [15] and protect rural character [14]” of the area” established by a county. In the rural element a county must:
(i) contain or otherwise control rural development,
(ii) assure visual compatibility with the “surrounding rural area,”
(iii) reduce sprawling low-density development,
(iv) protect critical areas and surface water and ground water resources, and
(v) protect against conflicts with RLs.
The requirements of (c)(iv) and (v) require that a county review its current policies and regulations to determine if they are sufficient to comply with subsections (c)(iv) and (v). If existing policies and regulations do not meet these requirements then a county has the duty to adopt new ones. If existing polices and regulations in place at the time of adoption of the rural element are adequate, no new ones are necessary.
To summarize, a county may allow and shall provide a variety of rural uses and rural densities that are consistent with the definition of rural character (14) and also comply with the requirements of (5)(a), (b), and (c). UGAs and RL designations are excluded, as are agricultural or farming activities in the rural areas (15). A variety of rural uses and rural densities, essential public facilities, and rural services are both allowed and required (15), (5)(b). Rural services must be “historically and typically” at an intensity not found in urban areas but found in rural areas. Traditional rural lifestyles, including rural-based economies are to be fostered. The natural environment is to predominate and rural visual landscape compatibility must be assured. Protection of critical areas and natural water flows and recharge and discharge areas, as well as compatibility of the uses and densities with wildlife and their habitat is required. Clusters and other innovative techniques may be allowed but must “accommodate appropriate rural densities and uses not characterized by urban growth” and be consistent with rural character (14). Rural uses and densities must be contained or otherwise controlled and must reduce existing sprawling low-density development in the rural area.
With
this framework in mind, we will now discuss the two rural character challenges
that FOSC argued most convincingly.
Rural Sign Regulations
FOSC
described the rural sign regulation in SCC 14.16.820 as the most egregious
assault on GMA rural character requirements.
FOSC gave the following reasons to support this charge:
(1) RCW
36.70A.070(5)(c) requires “Assuring visual compatibility of rural
development with the surrounding rural area.” The CP also has
policies
and
objectives to protect rural character.
Yet the sign ordinance allows
signage that is completely out of harmony with rural character of Skagit
County.
(2)
The code allows
roof signs, including electrified roof signs, on any building. A building permit
is required only if the signs are individually greater than 32-square feet or 6
feet tall. There is no requirement that other buildings in the area must
already have roof signs. Therefore, neighborhood rural character will be
destroyed by offensive signage.
(3)
The code allows
signs of any type and any size to be painted on buildings advertising
on-premise or off-premise activities.
(4)
The code allows
on-premise temporary signs advertising organizations for 45 days per year per
sign without any limitations as to size, number of signs, illumination,
placement, or other criteria.
(5)
The code allows
unlimited use of temporary and permanent off-premise “directional” signs for
private commercial purposes.
(6)
The code allows
commercial businesses and home occupations anywhere in the rural area to use
pennants, flags, banners, whirlers, streamers, and inflatable balloons of
unlimited size for 14 continuous days every six months for so called “special
events.” It even allows search lights
to be used by commercial businesses, home occupations, or anyone, for up to
five consecutive days and up to 30 days per year.
(7)
All of the above
uses are allowed as exemptions in the sign code with no permit required. Even worse violations of rural character are
allowed with a permit application.
(8)
FOSC went on to
list many more provisions of the Ordinance that it found to be most offensive
to protection of rural character.
(9)
FOSC ended by
asking that the sign ordinance be remanded for the County
to
set much stricter parameters for rural signage. It also asked that the sign
ordinance be found invalid for substantial interference with Goals 2, 5,
6,
and
10 of the Act.
The
County responded:
(1)
FOSC
mischaracterizes what the code would permit, spins outrageous hypotheticals and
then simply declares that this will happen and is inconsistent with rural
character and GMA. FOSC has failed to
meet its burden.
(2)
GMA does not
prohibit signs in rural areas. GMA
simply requires the County to assess what its rural character is, gives the
County significant discretion in doing so, and gives deference to those
ultimate County choices. Current Skagit
County rural character has “developed” in the context of the existing,
relatively lax, sign code requirements.
Indeed, the current sign code is a substantial revision to, and
tightening of, the previous sign regulations in Skagit County. This also
demonstrates that the parade of hypothetical horribles that FOSC asserts has
not happened and is not likely to happen under a more restrictive code.
(3)
The record on
existing rural character in Skagit County includes a bit of the “eclectic” mix
of painted barns and miscellaneous signs associated with scattered rural
businesses that FOSC declares is not rural character. Petitioners must demonstrate from evidence in the record that the
County’s choices are clearly erroneous and inconsistent with the requirements
of GMA. FOSC has not met its burden.
(4)
SCC 14.16.820
significantly controls what kinds of signs and how many can be located on a
parcel. FOSC either misunderstands or
mischaracterizes what the code would permit.
For example, on-premise signs are limited to signage for the lawful uses
of property. So if the property does
not permit commercial uses, signage for commercial usage is not permitted. Off-premise signs are limited to a few uses
(real estate signs, temporary roadside stand signs) or, in the case of
billboards, are limited to only a few zones.
(5)
“The rural
character at issue was established under a much, much more permissive sign code, and it is that rural character
with which the County must now be consistent.”
Board Discussion and Conclusion
We
disagree with the County’s statement in (5) above. As we discussed previously, the Legislature did not say that
whatever existed anywhere in the rural area of a particular county on June 30,
1990, automatically became the existing rural character of that county. Although the County created an excellent
written record, it must also meet the requirements of the GMA. The GMA was adopted in part to change rural
uses and practices, not to allow counties to continue pre-GMA ways by defining
them as “the rural character of our County.”
We appreciate the work the County has done to somewhat limit the use of
signage from its previous lack of restrictions. However, if Skagit County citizens took advantage of what is
allowed under the new sign codes, signage would predominate over open space,
natural landscape, and vegetation. RCW
36.70A.030(14) prohibits that result.
Further,
RCW 36.70A.070(5)(c) requires “assuring visual compatibility of rural
development with the surrounding rural area.”
Although the ordinance allows electrified roof signs, searchlights, and
a plethora of other signage, there is no requirement in the County code that
other buildings in the area must already have similar signage in order for this
new signage to be allowed. Therefore,
the code allows neighborhood rural character to be destroyed by offensive
signage that has not been located in that particular neighborhood before. We find that the County was clearly
erroneous in the choices it made regarding rural signage provisions. The County
must set much more strict parameters for rural signage in order to comply with
the goals and requirements of the Act.
FOSC
also requested that the sign ordinance be found invalid for substantial
interference with Goals 2, 5, 6, and 10 of the Act. We will not grant that request at this time. If the County has not severely limited
signage allowed in rural areas by the compliance date, we will reconsider
invalidation at that time.
Uses and Dimensional Standards Allowed
FOSC
challenged the lack of building height restrictions in all zones outside of
UGAs, claiming that the language of the code was clearly erroneous because height was only required to “conform to the
Skagit County Building Code.” The
building code allows buildings of unlimited height when proper construction
methods are used. FOSC charged that due
to this failure to restrict height, 16 sections of the code were in violation
of the rural character requirements of the Act and the CP.
FOSC
also requested that due to the excessive number of inappropriate uses, the
permitted use and special use sections of all the rural residential and
resource zones be remanded to the County for tightening.
FOSC
gave specific examples of what it considered to be inappropriate uses in
several of the rural residential zones.
In the NRL zones, FOSC challenged uses that it believed would lead to
ultimate conversion of NRL land to commercial enterprises. Some of the non-NRL challenged uses were:
outdoor outfitters enterprises, shooting clubs (if they damage or convert NRL
lands), kennels, wrecking yards for storage of unlicensed/inoperable vehicles,
racetracks, off-road vehicle parks, campground developed, private aircraft
landing field (conversion), animal clinics, specialized recreation facilities,
mortuaries, and Home Based Business 2 (HBB2) (that are not NRL-related commercial activities).
The
County responded:
(1)
FOSC challenges
the County’s decision to defer to the UDC and other regulations to restrict
building height, rather than to specify a height for each zone in the UDC. However, FOSC provides no analysis
whatsoever, instead concluding that unspecified “rural character requirements
of the Act and CP” are violated without evidence or explanation. FOSC ignores the County’s findings regarding
other factors which effectively limit building height. The County’s Recorded Motion provides
evidence of the County’s deliberation and rationale:
“Many
of the zones within the UDC do not contain a specific height limit, but rather
simply defer to the Uniform Building Code to limit height based on various
occupancy types. The Planning (sic)
finds that many of the zones limit the uses or FAR sufficient to also
consequently limit the height. The
Uniform Building Code adequately limits height based on a number of
considerations. First, single-family
residences are limited to three stories in height. For other types of construction, such as for industrial buildings,
Uniform Fire Code requirements will effectively limit the height of
buildings. Specifically, tall buildings
(above four stores) will require a fire flow which cannot be supported by rural
fire districts and this lack of fire flow will limit the permitted
heights. Taller buildings also trigger
and (sic) type and cost of construction that is not justified with the
rural intensity of the uses that are permitted by the code. These factors would effectively limit the
height of construction in Skagit County to no greater than four stories, with
the possible exception of non-occupied structures such as agricultural silos.”
FOSC has not shown that the County is clearly
erroneous to rely on fire flow and other UDC concerns and the practical
realities of construction types and
costs to regulate building height.
(2)
Regarding FOSC’s
challenge to the choices the County made as to what uses to allow where, it is
apparent that while FOSC may disagree with the County’s choices, it has failed
to make any sort of showing why those choices violate GMA. With nothing more to support its proposed
revisions than the barest of conclusions, FOSC cannot carry its burden on any
particular use, for any zone. FOSC’s
principle “evidence” is simply a previous comment letter from FOSC with the
same unsupported assertions or suggestions.
Further, most of the allegedly illegal uses are hearings examiner
special uses. Under this authority, the
examiner will ensure that the use gets more consideration, requires a finding
of consistency with existing land uses in the zone, and also ensures a public
forum before such uses are permitted.
FOSC is often wrong in its assumptions and conclusions regarding what
uses are permitted in what zones.
(3)
The County
supported the challenged uses in each of the zones in more detail.
(4)
As to NRL zones,
special uses must address impacts to NRL land and long-term natural resource
production. Further, a brief review of
the definitions and/or the specific language for these uses reveals that they
are not of any intensity to cause any appreciable impact to ongoing natural
resource activity.
Board Discussion and Conclusion
Although
we might prefer some of the conclusions presented by FOSC, our test under the
Act is not to determine whether Petitioner’s suggestions would improve the
Ordinance; rather, it is to determine if the challenged choices the County made
failed to comply with the goals and requirements of the Act. On the whole, as to rural zones, FOSC has
failed to show that the County’s choices were clearly erroneous.
However,
many of the challenged uses allowed by administrative or hearings examiner
special use permit in Ag-NRL, IF-NRL, SF-NRL, and RRC-NRL do not comply with
the Act. The County’s defense of these
uses - that the hearings examiner will ensure that the use gets careful
consideration, ensures public participation, and addresses impacts to NRL land
and long-term natural resource production - are not convincing. SCC 14.16.900(2)(b)(v)(f) merely states
“impacts on long-term natural resource management and production will be
minimized.”
Recently the Supreme Court has addressed the agricultural resource lands (ARL) provisions of the GMA in Redmond v. Growth Hearings Bd. 136 Wn.2d 38 (1998) (Redmond) and in the Soccer Fields case. In both cases the Court made very strong statements concerning the need to preserve ARLs as a fundamental necessity of the maintenance and the enhancement of the agricultural industry. In the Soccer Fields case the Court said at p. 19 of the slip opinion:
“In summary, the agricultural lands provisions (RCW 36.70A.020(8), .060, and .170) direct counties and cities (1) to designate agricultural lands of long-term significance; (2) to assure the conservation of agricultural land; (3) to assure that the use of adjacent lands does not interfere with their continued use for agricultural purposes; (4) to conserve agricultural land in order to maintain and enhance the agricultural industry; and (5) to discourage incompatible uses.”
In the Soccer Fields case the Court noted that while the goals of the Act are not set forth in any priority order “the verbs of the agricultural provisions mandate specific, direct action.” At p. 20 of the slip opinion the Court reiterated the holding of Redmond by quoting from p. 47 of that case “with approval” the observation that:
…“Allowing conversion of resource lands to other uses or allowing incompatible uses nearby impairs the viability of the resource industry.”
The Supreme Court also noted that the provisions of RCW 36.70A.3201 grant a great deal of local discretion but “bounded” such discretion with the requirement that the discretion be exercised “consistent with the requirements and goals of”…. GMA. Ultimately, at p. 23 of the slip opinion in the Soccer Fields case the Court held that:
…“After properly designating agricultural lands in the APD, the County may not then undermine the Act’s agricultural conservation mandate by adopting “innovative” amendments that allow the conversion of entire parcels of prime agricultural soils to an unrelated use…”
Although the Soccer Fields case
dealt specifically with ARLs, those holdings are equally applicable to other NRLs. The concept of clustering and the CP CaRD policies are not
challenged. In SCC 14.16.400, .410,
.420, and .430 Skagit County has allowed in NRLs uses which fail to comply with
the Supreme Court’s opinion of the proper interpretation of the Act’s goals and
requirements.
The
fact that a special use permit is required does not remedy this failure to
comply.
Commercial Composting on Ag-NRL Lands
Petitioner
Bender challenged the County’s DRs which allow commercial composting of
municipal yard waste on pre-existing concrete pads in designated agricultural
NRL lands. Bender supported this
challenge with the following arguments:
(1)
Commercial
composting will violate the following 1997 CP policies:
CP Policy 3.1 (“prime agricultural lands shall
be protected and preserved”); 4.4 and 4.4.2 (requests for changes with the
agricultural zoning designations require the proposed use to be “directly
related to agricultural enhancement or production”); 4.5 and 4.5.1 (“farm based
businesses must remain an accessory use, secondary to the primary agricultural
use of an actively farmed property”); 6.3 (“the primary use of any parcel on
lands designated as agriculture shall be agricultural production and related
processing, and support services”).
(2)
This type of
business interferes with natural resource use of NRL because of the increased
traffic unrelated to resource production.
This use also consumes the developed area of the NRL parcel for
non-agricultural purposes and makes the parcel less likely to be able to
sustain agricultural use in the future.
(3)
A March 13, 2000
letter from the County administrative official stated that this type of business
“simply should not be allowed as either a special use or permitted use on
non-renewable Agriculture-NRL lands.”
(4)
Despite the above
information, the County included SCC 14.16.400(2)(e) in its DRs. This code section allows “composting with no
net loss of original soil” as a “permitted use” in the Ag-NRL district.
(5)
Commercial
composting of municipal yard waste on concrete pads for commercial sales to
city residents is not an agricultural use and does not comply with the Act.
(6)
The farm-based
business regulation should be clarified to require that the product must always
be “soil-dependent” because the allowance of farm-based businesses with
products that are not “soil dependent” amounts to a conversion of Ag-NRL lands
to non-agricultural uses.
(7)
In Ordinance #17535,
farm-based business was allowed as an accessory use or special use while under
Ordinance #17938 it is an outright permitted use without requiring any other
on-site agricultural use.
(8)
SCC
14.16.400(2)(e) which allows commercial composting in the Ag-NRL district
should be found invalid for substantial interference with RCW 36.70A.020(2),
(5), (6), and (8) because the use is an “inappropriate conversion;” is not
“within the capacities of the state’s natural resource;” is an “arbitrary” action; and does not conserve
productive agricultural land “and discourage incompatible uses.”
The
County responded:
(1)
Petitioner Bender
has failed to show how SCC 14.16.400(2)(e) fails to comply with the GMA.
(2)
Bender bases his
complaint on a site-specific land use proposal by an individual. This is not the forum for Bender to be
complaining about Cassidy Topsoil, Inc’s. proposal.
(3)
Bender makes the
incorrect assumption that “commercial composting of municipal yard waste on
concrete pads” is a use that would be allowed under SCC 14.16.400(2)(e).
(4)
The code does not
allow new concrete pads for new composting uses.
(5)
Bender’s reliance
on an administrative official’s interpretation of a prior code as applied to
the specific facts of that case is also without merit.
(6)
The current
definition of “farm-based business” was originally adopted on June 25, 1998, as
part of Ordinance #17029. This adopted
amendment to the CP definitions was not appealed to the Board. The definition
of “farm-based business” in Ordinance #17029 is identical to that definition
now adopted as part of the UDC in 14.04.020.
(7)
When a County
adopts a new DR to mirror a CP provision it adopted two years earlier or a code
section adopted one year earlier that were unchallenged, that does not start a
new appeal period.
(8)
Bender has not
shown noncompliance, let alone substantial interference with respect to these
issues.
Board Discussion and Conclusions
Petitioner
has not convinced us that the County was clearly erroneous in bringing forward
its CP definition of “farm-based business” to its UDC. We also agree with the County that this is
not the forum for site-specific concerns.
As
to the general issue, the County claimed that SCC 14.16.400(2)(e) did not allow
composting on concrete pads as Bender claimed.
SCC 14.16.400(2)(e) simply states, “Permitted Uses. (e) Composting with no net loss of original
soil.”
We
are hard pressed to see how this description of a permitted use would not allow
commercial composting of municipal yard waste on pre-existing concrete pads
within the Ag-NRL lands.
We
understand beleaguered dairy farmers’ need to find additional sources of
income. However, this type of use must
either be clearly precluded in the Ag-NRL lands, or must be a hearing examiner
or administrative special use to ensure that this non-agricultural use is
temporary and priority always given to agricultural uses. Regulations must also ensure that no
leaching of toxins from urban yard debris is allowed to contaminate the
agricultural soil and that the additional truck traffic will not interfere with
agricultural uses.
We
find no such safeguards in the current ordinance and therefore find SCC
14.16.400(2)(e), as currently written, to be noncompliant with the GMA and the
County’s own agricultural conservation policies. The Supreme Court’s holding in Soccer Fields case (as
discussed on pp. 31 and 32 of this decision) supports this conclusion.
Concrete UGA
FOSC
claimed that the Concrete UGA boundary was oversized and failed to comply with
the Act. It asserted that Concrete
could accommodate its allocated growth within municipal limits and therefore
must not be allowed a UGA outside its current boundary. FOSC also requested that we give the County
90 days to reduce the Concrete UGA to its municipal boundary and, if not done,
find the unincorporated UGA automatically invalid for substantial interference
with Goals 1 and 2.
The
Town of Concrete responded:
(1)
The record shows
that the town has been working and meeting with the County on its UGA for
years. It has done its required analysis
and submitted thousands of pages of information to the Department of Community
Trade and Economic Development (CTED) and the County.
(2)
FOSC did not
participate at all in Concrete’s process and only submitted one letter in the
County process.
(3)
The town has
reduced its proposed UGA by 50%.
(4)
Concrete has never
claimed a need for a UGA merely for its allocated population. Rather, RCW 36.70A.110 also authorizes the
inclusion of adjacent areas that are already at urban standards. Grasmere, the included area, has sidewalks,
curbs, gutters, and urban water. Where
existing urban development and sidewalks end, the boundary of the UGA
terminates. The town has documented
that it can meet minimum urban density requirements and can supply the area
with urban services. The Town will
enforce concurrency and has a sewer comprehensive plan to serve the area. This plan has been approved by the
Department of Ecology (DOE) and CTED.
(5)
Based on the
record, the County was not clearly erroneous in its decision that the unincorporated
UGA was already characterized by urban growth and should be included in
Concrete’s UGA.
Board Discussion and Conclusion
The
record shows that the area included in the Concrete UGA is characterized by
urban growth and is served by Concrete.
All the other municipal UGAs have long since been found in
compliance. It is pointless to require
the County to shrink those UGAs in small amounts so Concrete can include an
area in its UGA that is already urbanized.
Given this record, we find that including that area within the
Concrete UGA, thereby requiring any new development to meet Concrete’s DRs and
concurrency requirements and develop to urban standards, complies with the Act.
Water Service to Rural Areas
FOSC
charged that the County’s amended CP and coordinated water system plan (CWSP)
redefining urban and rural water services, as implemented in SCC 14.36.040,
still did not comply with the Act. FOSC
complained that the definition of rural water service applied by the CP, CWSP,
and SCC did not preclude a water line extension from inside a UGA to outside a
UGA that is structurally capable of providing urban water service to areas
outside the UGAs. Therefore, these
policies and regulations do not preclude future water system extension from
being used for future urban water service outside the UGAs. Thus, the Act’s requirement to ensure that
rural extensions be designed to prevent them from being structurally capable of
providing urban water service was violated.
The
County responded that it had adopted “rural” and “urban” Levels of Service
(LOS) standards in its CP as required by the Act. These standards are mirrored in the CWSP Glossary. The CWSP also adopted fire flow standards
for “urban” and “rural” areas. This
addresses public safety issues. Because
the water pipe sizes are a function of hydraulic engineering, including, but
not limited to, distance served, topography, and pressure; it is not
appropriate or possible to set a water pipe size as an urban vs. rural
LOS.
Intervenors
Towns of Hamilton and Concrete supported the County’s action. They have Group A water systems and need to
serve customers outside their boundaries to spread their fixed costs. They must meet the design standards set by
the Department of Health (DOH). The
CWSP complies with the Act.
Intervenor
Del Mar Community Services, also a water purveyor, supported the County and
underscored that the CWSP is excellent; the County cannot usurp DOH’s role in
water system design; and if they followed FOSC’s demands, rural areas would be
made vulnerable to fire for no good reason.
Intervenor Clark and others also supported these arguments.
Board Discussion and Conclusion
The
County has developed LOS standards for rural and for urban water service as
required by the Act. FOSC has not
convinced us that the Act requires water service to rural areas be designed to
be structurally incapable of providing an urban LOS. Rather, the County’s land use regulations must preclude new urban
development in the rural area. The
County is in compliance with the Act as to LOS standards for rural and urban
water service.
FOSC raised several concurrency challenges. On the whole, we are not persuaded that the County was clearly erroneous in the choices it made regarding concurrency. The one exception is the County’s failure to add all municipal concurrency ordinances to Appendix A and keep them current. This is required for the Cities to be able to administer their concurrency ordinances within their UGAs outside their current municipal boundaries. This issue is also discussed in the FDO for Case #00-2-0050c (2-6-01). The County agreed that a remand should occur to clarify its intent to adopt current city DRs for the UGAs.
FOSC contended that the County failed to adequately address open space corridors within and between UGAs in violation of RCW 36.70A.110(2) and -.160.
The County countered that FOSC ignored the city maps for each municipal UGA in the record which identified these open space and green belt areas within UGAs. With respect to corridors between UGAs, FOSC ignored the County Parks and Recreation Development Plan. The County adopted these requirements. Further, the County carefully considered and recognized other important categories of open space under private ownership and control that, while not necessarily mapped as such on the CP map, nonetheless provide valuable open space functions.
FOSC replied that City maps in the map portfolio do not show green belts in unincorporated UGAs. Open space corridors between UGAs are not shown in the Parks Plan. Further, the CP does not reference the Parks Plan.
RCW 36.70A.110(2) requires counties to include “greenbelt and open space areas” in its UGAs. RCW 36.70A.160 requires counties to “identify open space corridors within and between urban growth areas.”
The County CP at 4-33 states:
“The Open Space Areas are intended to provide for a variety of open space types. Open space areas include greenbelt corridors within and around urban growth areas, green belts which connect critical areas, lands receiving open space tax incentives, resource lands, conservation easements, rural open space areas, park lands, and significant historic, archaeological, scenic and cultural lands. The Potential Greenbelts and Public Open Space Areas overlay found on the Urban Growth Area Maps, Maps 3A – 3K, are general in nature and will be more thoroughly designated through the project review process. More detailed mapping together with specific protection techniques including a revenue plan are included as a part of the Parks, Recreation and Open Space Plan and Conservation Futures Plan. Potential greenbelts and open space areas will be a mix of the three categories of open space: (1) Public, (2) Private and (3) Open Space Taxation…….”
This generalized discussion in the CP, plus city maps (that do not show green belts in unincorporated UGAs) and County parks plan maps (which do not show open space corridors between UGAs), do not adequately meet the requirements of RCW 36.70A.110(2) and .160.
Changes
to the Big Lake Rural Village (RV) Provisions
FOSC
challenged the County’s expansion of the Big Lake RV boundary for many reasons
including:
(1)
The Board found the
Big Lake UGA not in compliance with the Act in the Abenroth FDO. The County responded by removing the UGA
designation for Big Lake and designating the exact same area as RV.
(2)
In the CP and UDC the
County has now substantially expanded the boundary and residential development
potential for the Big Lake Rural Village.
(3)
CP 4A-7.8 provides
“changes to Rural Area designation should occur through the community
development planning process (subarea joint planning)” by evaluating many
specified criteria.
(4)
The County has proposed
a community planning process for Big Lake for the future in CP 4A-7.15, but it
expanded the boundary before that planning process was even begun.
(5)
The County has
expanded the RV without following the criteria in CP Chapter 2. There was no monitoring program and analysis
as required in CP Chapter 2.
(6)
The Big Lake Rural
Village has been expanded to become contiguous with the boundary of the Mount
Vernon UGA. This is a fundamental flaw
because the future expansion of the Mount Vernon UGA toward Big Lake will be
precluded by the suburban densities of 1 du/acre allowed in this expansion
area.
(7)
The GMA requires that
the RV have a “logical boundary delineated predominately by the built
environment.” Most of the boundary of
the expanded RV is not bounded by physical boundaries and/or “delineated
predominately by the built environment.”
No consideration was given to boundaries of existing areas as those
areas existed on July 1, 1990. The
County has not shown its work in delineating the Big Lake boundary under the
criteria of RCW 36.70A.070(5).
(8)
All of these issues
must be addressed in a community planning process according to CP4A-7.8 before
the boundary of the Rural Village is modified, and before the density in the
Overlook Golf Course is increased from 1 du/5 acres to 1 du/1 acre. Expansion of development potential in the
Big Lake RV as was done by Ordinance #17938 is clearly erroneous.
(9)
Because the RV is so
close to the Mount Vernon UGA, the expansion of both the area and the density
in the Rural Village should be found invalid for substantial interference with
Goal 1 and Goal 2. If development vests
in expansion areas and/or at the expanded densities allowed by Ordinance
#17938, it will be impossible to reverse the damage in the community planning
process.
The
County responded:
(1)
Finding 87 of the
County’s Recorded Motion explains that the residential development potential of
Big Lake has been substantially reduced when it was changed from a UGA to an
RV.
(2)
The record now
contains ample description and evidence to support the unique local
circumstances, specific boundary choices and minor modifications made.
(3)
The adopted CP
policies for this Rural Village appropriately constrain and protect further
development in this area until sub-area planning is completed.
(4)
FOSC cites to no GMA
provisions that preclude the RV boundary from being contiguous with the Mount
Vernon UGA. The Big Lake subarea plan
will specifically look at potential UGA expansion issues in this area.
(5)
FOSC has not met its
burden and the County’s designation of the Big Lake RV, together with its
innovative policies to encourage clustered development, should be upheld.
Board Discussion and
Conclusion
The record shows that the County failed to follow its own CP policies and do an analysis for compliance with RCW 36.70A.070(5) when it expanded the Big Lake RV boundary. In order to comply with the Act the County must complete a Big Lake subarea planning process according to CP 4A-7.8, analyze the proposed boundary expansion according to the criteria in RCW 36.70A.070(5)(d) and consider the potential of this area for Mount Vernon UGA expansion before the boundary is expanded or greater densities are allowed for the Overlake Golf Course.
Miscellaneous
Issues
FOSC
challenged numerous sections of the DRs as being potentially confusing or not
fully implementing the CP. On most of
those issues, we agree with the County that FOSC’s speculative concerns over
implementation fail to meet its burden of proof and do not justify a finding of
GMA noncompliance. However, the
following UDC sections do warrant a remand for consistency and/or
clarification.
SCC 14.10.020(1)
FOSC
challenged SCC 14.10.020(1) for its lack of clarity. The section calls for variances to the public works standards in
SCC 14.36 to be determined administratively by the Department of Public Works
pursuant to Section 2.10 of the Skagit County Road Standards Manual. SCC 14.36 includes standards for roads,
stormwater, sanitary sewer, and water systems.
Section 2.10 of the Road Standards Manual does not address
stormwater, sanitary sewer and water system standards.
The
County conceded that the language in SCC 14.01.020(1) is not fully consistent
with SCC 14.36 by limiting Public Works review to Section 2.10 of the Skagit
County Road Standards Manual, which does not contain standards for stormwater,
sewer and water systems. Further, other
sections of SCC provide a clearer description of what entity is responsible for
what variance decisions. The County
stated it was willing to process an amendment to SCC 14.01.020(1) to avoid
confusion.
In order to achieve compliance the County must amend SCC 14.01.020(1) to be similar to its proposed amendment at p. 58 of its response brief.
Inconsistency Regarding Side
Setbacks
FOSC
asserted that SCC 14.04.020 defines “Lot line, front” to include any parcel
boundary on a street. But SCC 14.16.140
and other code sections define a front setback of one distance and a side
setback on a street right-of-way as a different distance. Under the definition of the “Lot line,
front” the side on a street right-of-way is considered a front so the code is
internally inconsistent on this issue.
The
County conceded that there is a small chance for confusion when SCC 14.06
setbacks are applied in conjunction with the definition of “Lot line, front” in
SCC 14.04.020. The County stated that
it was willing to process an amendment to SCC 14.04.020 to avoid the
possibility of confusion.
In order to achieve compliance the County must amend SCC 14.04.020 to be similar to its proposed amendment at p. 59 of its response brief.
Inconsistent Population
Projections
FOSC
pointed out that the population projections that the County used for its
Capital Facilities Plan (CFP) are inconsistent with the population projections
used in other parts of the CP.
Therefore, the CFP must be revised based on proper projections. Further, FOSC contended that in order to be
internally consistent, all elements of the plan must be based on the same
20-year planning period.
The
County acknowledged the population projection inconsistency and pledged to
correct this inconsistency. The County
showed that it had corrected this in the CFP for 2000-2006. The inconsistency had no effect on the CFP
2000-2005 dates, assumptions or conclusions.
In order to achieve compliance the County must take action to ensure that all elements of its CP use the same population projections and 20-year planning period.
Minimum Residential Densities
for the Concrete UGA
FOSC
stated that the FDO in Abenroth required the County to place a note on
its CP maps for unincorporated UGAs that specifies minimum residential
densities of 4 du/acre with a maximum lot size of ¼ acre. In the 2000 CP the County has adopted an
unincorporated municipal UGA for the Town of Concrete that provides for
residential development. The County
should be held to the previously cited decision and be required to place the
same density note now on the UGA map for Concrete.
The
County responded that the failure to include the minimum density notation on
the County’s map for the Concrete UGA was, at most, a typographical
oversight. The County also noted that
Town of Concrete Ordinance #439 establishes maximum lot sizes that comport with
urban standards. The County has adopted
these regulations for the Concrete UGA.
In order to achieve compliance the County must place the minimum density note on the UGA map for Concrete consistent with other UGA maps.
ORDER
In
order to comply with the Act, the County must take the following actions by the
deadlines specified:
(1)
If the aggregation
requirement is not reinstated, the County must adopt other measures that
prevent incompatible development and uses from encroaching on designated
resource lands and their long-term viability.
This includes not only the estimated 4,000 substandard lots within NRL
lands, but also those in rural areas near designated NRL lands. Further, the County must ensure by
appropriate regulations that in allowing development of substandard lots, it
does not allow development which will cumulatively require urban services in
rural areas and which fails to reduce low-density sprawl. If compliance is not achieved within 90
days, we will consider Petitioners’ request for invalidity.
(2)
If the County
wishes to retain its urban reserve provision in the CaRD DRs, it must limit
that option to lands near UGAs which it has determined to be the best areas for
future urban growth. The process to
determine future urban growth suitability must include consultation with the
impacted municipalities, SEPA review of alternatives, and full public
participation. These actions must be taken within 180 days.
(3)
Set a specific
timetable for, and firm commitment to, the timely completion of the Fidalgo
Sub-Area Plan. This plan must be
completed and found to be compliant before the CaRD urban reserve
development or any other increase in density are allowed to occur on the
Island. The specific timetable and
scope of work must be developed and supplied to us within 90 days.
(4)
Within 90 days,
change the amendments to CP Policy 7A-4.29a to make it clear that annexations
are to occur as soon as feasible within municipal UGAs to facilitate the
efficient phasing of urban infrastructure and development.
(5)
Set much more
strict parameters for rural signage to protect the rural character of the
County and conform with RCW 36.70A.030(14)(a) and .070(5)(c). If compliance is not achieved within 90
days, we will consider Petitioners’ request for invalidity.
(6)
Within 90 days,
remove the uses allowed in NRLs listed in SCC 14.16.400, .410, .420, and .430,
which do not comply with the Supreme Court’s opinion of the proper
interpretation of the Act’s goals and requirements in the Soccer Fields case.
(7)
Either clarify SCC
14.16.400(2)(e) to prohibit commercial composting of municipal yard waste on
pre-existing concrete pads within the Ag-NRL lands, or adopt safeguards to
ensure that this non-agricultural use is temporary, priority is always given to
agricultural uses, no leaching of toxins from urban yard debris is allowed to
contaminate the agricultural soil, and ensure that additional truck traffic
will not interfere with ongoing agricultural uses. If compliance is not achieved within 90 days, we will consider
Petitioners’ request for invalidity.
(8)
Within 30 days,
adopt current city DRs for enforcement within municipal UGAs. Changes to city ordinances must be adopted
promptly in the future to ensure enforceability of the updated municipal codes.
(9)
Within 180 days,
adopt maps or some other clear mechanism to identify greenbelts and open space
areas within UGAs and open space corridors within and between UGAs.
(10)Within 30 days, repeal the changes made to
the Big Lake rural
village
in the 2000 CP and UDC. Complete a Big Lake subarea
planning
process according to CP 4A-7.8, analyze the proposed
boundary
expansion according to the criteria in RCW
36.70A.070(5)(d),
and consider the potential of this area for Mount
Vernon
UGA expansion before reexpanding the boundary or
allowing greater densities for the Overlake Golf
Course. If repeal of the changes is not
made within 30 days, we will invoke invalidity.
(11)Within 90 days, amend SCC
14.01.020(1) to be similar to the County’s
proposed
amendment at p. 58 of its response brief.
(12)Within 90 days, amend SCC 14.04.020
to be similar to the County’s
proposed
amendment at p. 59 of its response brief.
(13)Within 180 days, take action to
ensure that all elements of the CP
use the
same population projections and 20-year planning period.
(14)Within 90 days, place a minimum
density note on the UGA map for
Concrete consistent with other UGA maps.
(15)Any findings of noncompliance in
previous sections of the FDO are
incorporated by reference.
Findings
of Fact pursuant to RCW 36.70A.270(6) are adopted and attached as Appendix I
and incorporated herein by reference.
This
is a Final Order under RCW 36.70A.300(5) for purposes of appeal.
Pursuant
to WAC 242-02-832(1), a motion for reconsideration may be filed within ten days
of issuance of this final decision.
So ORDERED this 6th day
of February, 2001.
WESTERN WASHINGTON
GROWTH MANAGEMENT HEARINGS BOARD
_____________________________
Nan
A. Henriksen
Board
Member
_____________________________
William H. Nielsen
Board
Member
Appendix I
Findings of Fact pursuant to RCW 36.70A.270(6)
Repeal of Lot Aggregation
Urban Reserve in CaRD Implementation
Fidalgo Island Sub-Area Plan
Annexation Requirement in CP
“…that (1) “That which is urban should be
municipal; (2) implicit in RCW 36.70A.110(4) is the principle that
‘incorporations and annexations must occur; and (3) one of the three
‘fundamental purposes’ of CPs is to ‘achieve the transformation of local
governance within the UGAs such that cities are the primary providers of urban
services.’”
Vesting Provisions
Rural Sign Regulations
Uses Allowed
…“After properly designating agricultural lands in the APD, the County may not then undermine the Act’s agricultural conservation mandate by adopting “innovative” amendments that allow the conversion of entire parcels of prime agricultural soils to a non-related use…”
Commercial Composting on Ag-NRL Lands
Concrete UGA
Water Service in Rural Areas
Identification of Open Space Corridors
Changes to the Big Lake Rural
Village Provisions
1.
The Board found the
Big Lake UGA not in compliance with the Act in the Abenroth FDO. The County responded by removing the UGA
designation for Big Lake and designating the exact same area as a Rural
Village.
2.
In the CP and UDC the
County has now expanded the boundary and residential development potential for
the Big Lake Rural Village.
3.
CP 4A-7.8 provides
“changes to Rural Area designation should occur through the community
development planning process (subarea joint planning)” by evaluating many
specified criteria.
4.
The County has
proposed a community planning process for Big Lake for the future in CP4A-7.15,
but it expanded the boundary and added density before that planning process was
even begun.
5.
The County has
expanded the Rural Village without following the criteria in CP Chapter 2. There was no monitoring program and analysis
as required in CP Chapter