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CAO update challenged from both the right, and the left

February 5, 2013 · Updated 11:51 AM
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By Steve Wehrly/Journal reporter

Groups supporting and opposing the county critical areas ordinance continued their years-long feud this week. Appeals from both sides of the controversial CAO have been filed with the state Growth Management Hearings Board.

On Jan. 30, Friends of the San Juans filed Petitions for Review against four elements of the updated CAO, approved by the San Juan County Council in December. Separate petitions were filed Feb. 4 on behalf of the Common Sense Alliance and the P.J. Taggaris Co. against the general, wetlands, and fish and wildlife sections, leaving out the geologically hazardous, frequently flooded Areas portions.

Friends explained its action in a press release: “While the County succeeded in completing the much-delayed task, the ultimate ordinance needs some fine-tuning to ensure that it applies Best Available Science recommendations to protect all wetlands in the County, prevent long-term harm from flood risks due to sea level rise, and ensure the long-term viability of fish spawning beaches.”

Each petition details multiple sections of a given ordinance which a petitioner claims does not comply with the requirements of the state’s Growth Management Act. Some objections are to the same section of the ordinance, for different reasons. All objections must be supported by the “record” of the county council deliberations, which includes many days of testimony and hundreds of pages of written submissions. The “record” is critical because the Hearings Board will only consider matters contained in the record when they decide a given issue.

All petitions must be filed no later than 60 days after the ordinances were passed and published. The publication date was Dec. 12, so it’s possible that additional petitions will be filed before Feb. 11.

Within two weeks or so, after a teleconference with all parties, the three members of the Hearings Board will consolidate all the “cases” and require the parties to file a consolidated “statement of issues”. The “Respondent”, San Juan County, represented by Prosecutor Randy Gaylord and Deputy Prosecutor Amy Vira, will be given another 30 days to submit an “index of the record” to the board and the parties.

Parties will have 30 or 45 days to prepare briefs arguing their cases, followed by responses by each party to the others’ briefs, followed by reply briefs. Although state law provides that the Growth Management Board is supposed to issue a decision within 180 days, both Sandy Mackie, attorney for the Common Sense Alliance and the P.J. Taggaris Co., and Gaylord expect the case may continue beyond the 180 day decision deadline.

Gaylord says the length, difficulty and “some of the frustration of cases like the CAO appeals are due to the voluminous record and the scientific complexity of CAO matters.”

Mackie explained that he is filing petitions for both the Common Sense Alliance and the P.J. Taggaris Company because the CSA objections are more general in nature, and the Taggaris petition deals specifically with 11 lots and a residence on Blakely Island. The four petitions filed by Friends total almost 30 typewritten pages — not including attached copies of ordinances.

The result: the Hearings Board decides whether specific parts of specific ordinances “fail to comply with the law or violate fundamental principles of the law,” according to Mackie. The board then remands the flawed ordinances back to the county, which is expected to amend the ordinances so they comply with the law.

If the hearing board declares it is satisfied with the county’s actions, any party can then bring an action in Superior Court - continuing the case for as much as another year or more.

 


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