County Council stamp of approval expected on revision of hotly contested CAO

Another chapter in the seemingly unending Critical Areas Ordinance update process is reaching a conclusion.

The County Council is scheduled to complete the current installment at a March 5 special meeting. But this chapter is far from the end of the story.

At a Feb. 25 public hearing, the Council considered 26 amendments to three of four critical areas ordinances originally passed in late 2012, which were intended to bring the environmental and construction permitting regulations into compliance with the state Growth Management Act.

“All of us have reservations about the CAO, but we have worked together and we have been able to approve options provided by the planning commission that will put the county in compliance,” Council Chairman Rick Hughes said.

An “update” of four critical areas regulations was originally required by the GMA to be completed by 2006, but procedural and substantive impediments delayed completion until 2012.

The council’s 2012 enactments were then appealed to the Growth Management Hearings Board in early 2013 by property rights advocates and environmentalists. A September 2013 decision by the Hearings Board essentially upheld objections advanced by the Friends of the San Juans that the critical areas ordinances failed to comply with the GMA in nine respects.

Contentions advanced by the Common Sense Alliance and other property rights advocates were rejected by the Hearings Board.

Both the Alliance and Friends appealed the hearings board decision to the San Juan County Superior Court. That action is under consideration by Judge Don Eaton, and further appeals could still be pursued in both the state Court of Appeals and Supreme Court.

In addition, any party or the county can bring additional legal action in response to the decision by the Hearings Board regarding the amendments expected to be passed on March 5.

The revisions now under consideration by the council address a range of noncompliance issues identified by the hearings board, which in its order in September 2013 required the county to respond by passing amendments by March 5.

The council also extended the date of the critical areas ordinances go into effect several times, now set for March 31.

The amendments under consideration deal with several contentious issues for protecting critical areas, including the definition of “development,” exemptions for utilities, protection of “functions and values” from development in Fish and Wildlife Habitat Critical Areas, and wetland protection rating-system categories and buffers.

The most far-reaching amendment abandons the complex, site-specific 13-category wetland and water quality rating system devised by the county in 2012 and substitutes a four-category rating system developed by the Washington state Department of Ecology. The rating system is used to determine water quality buffers and habitat buffers, and requires landowners to use a “qualified professional” – a paid water-quality consultant – to establish the applicable wetland rating category and buffers.

Friends’ attorney Kyle Loring believes the council “in general took steps to address concerns expressed in the growth board’s decision, but we will look closely at provisions such as the expanded utility exemption, and we may still express any disappointments we have to the growth board.”

Councilman Hughes believes the proposed amendments will satisfy the hearings board, but he’s prepared to revisit the ordinances if the board or the courts require further changes.

Councilman Jamie Stephens said, “it was not an easy task to keep the focus” on complying with the hearings board, but he agrees with Hughes that “when it’s implemented, we’ll find out what works and doesn’t work, and make necessary changes.”

Councilman Bob Jarman, just back from a hospital stay with a difficult staph infection, joined his colleagues in asking for future changes.

“I still feel the CAO is anti-development and needs further work,” Jarman said. “As Tom Starr said, what is the problem we’re trying to fix? We need to finish these amendments for the hearings review board now, but someday we need to come back to these ordinances and take one item at a time and correct it.”

After receiving the county’s report regarding compliance with the Sept. 2013 order, the hearings board will accept objections to the amendments and responses to those objections. The board will convene another hearing, set for April 24, to determine whether the amendments comply with the September 2013 order.

Further action by the county can be required by the board and further appeals to the superior court can be pursued by the parties. Final wrap-up of superior court legal actions, plus appeals, may be several years in the future.