San Juan County could find itself having to redo a significant portion of its critical areas ordinance if allegations that the County Council violated the state Open Meetings Act in preparing the recently approved, controversial land-use regulations are determined to be true.
Just how much of the CAO would be nullified remains to be seen.
Oral arguments began in an Island County courthouse Friday, April 19, with the county’s legal team calling first for the case, a lawsuit brought by San Juans’ Citizens Alliance for Property Rights, to be dismissed.
“Our contention, in part, is there was no violation of the open meetings act because three people are not a majority or a quorum of the council,” Prosecuting Attorney Randy Gaylord said.
A decision on the county’s motion for dismissal is expected sometime this week. Some facts are without dispute.
The county and CAPR agree that as many as three council members joined in when a group known as the CAO/SMP (shoreline master program) implementation committee got together to hash out issues related to the revision of those two land-use regulations over roughly two-years time.
That committee, which was assembled by former county administrator Pete Rose, and not by the council, according to Gaylord, met about 20 times over the course of those 24 months.
In addition to the county, defendants named in the lawsuit are former county council members Richard Fralick and Lovel Pratt, and councilwoman Patty Miller.
Filed in San Juan County Superior Court in mid-October, the lawsuit was later moved to Island County following a motion by CAPR attorney Dennis Reynolds that disqualified Judge Don Eaton from the case. Rulings will be handed down by Island County Judge Alan Hancock, who, along with Judge Vicki Churchill, presided over superior courts of both Island and San Juan counties up until 2007.
The lawsuit contends important policy decisions were discussed at those meetings and that the public — because no public notice was given of them — was not allowed to attend or observe. In addition, it alleges the county failed to follow state law instructing counties how to revise a critical areas ordinance and shoreline master program, and to develop the so-called best available science.
The lawsuit seeks to undo any “action” that was taken related to those meetings.
CAPR’s Gordy Petersen maintains that the word “action” is broadly defined by state law. It is action that defines a “meeting” and it applies to any discussion by council members of official county business and even to an exchange of emails, he said.
“We have the facts on our side,” he said. “Our case is so clear cut.”
In addition, Petersen notes that about a year ago the county prosecutor advised the council that public notice should be given for any meeting of a council sub-committee, which typically consists of three council members.
“It’s not that they can’t do it,” he said of ad hoc or sub-committee meetings of the council. “It’s just that they need to give notice if they do.”
Still, Gaylord contends there’s more to the state open meetings act than whether three members of the council attended a meeting at the same time.
He said the implementation committee was not formed by the council to act on its behalf, that CAPR has failed to show that the council members who attended those meetings conducted any “official business” of the council while there, or that their attendance constitutes a “meeting” of the council, as defined by the OMPA.