County's plan heads to court

Appeals were heard Monday in Island County Superior Court regarding a handful of controversial ordinances pertaining to the county’s future land use plan.

As mandated by the Washington State Growth Management Act, counties must create a Comprehensive Plan that provides for future growth without engendering urban sprawl or spoiling a particular region’s rural character.

In Island County, the state’s second most densely populated county, the process has bogged down at a number of key points regarding such things as wetland protection, rural zoning and agricultural practices.

Monday’s hearing, presided over by visiting Whatcom County Judge David Nichols, involved appeals by two separate parties. First, the county itself is appealing rulings on three ordinances by the Western Washington Growth Management Hearing Board. Whidbey Environmental Action Network (WEAN) also is seeking to overturn two existing ordinances in the county’s Comp Plan.

Representing the county, Deputy Civil Prosecutor Arne Denny argued that the county’s exemption for existing and ongoing agricultural practices should be allowed to stand under what is called “Best Management Practices.” Essentially, this would “grandfather in” already existing farms that happen to violate any new protections under the Comp Plan. The hearings board earlier ruled that the county’s agricultural plan violated the GMA’s Critical Areas (CA) ordinance for environmental protection. Denny contended that BMPs present a viable alternative to the stricter CA ordinances.

The county also is appealing the board’s ruling that the existing 25-foot buffer for Category B wetlands is insufficient and should comply with the requirements of the Department of Fish & Wildlife, which mandates that such buffers to be at least 50 feet deep. Denny argued that the board actually did not have the jurisdiction to review such buffers, and that the ordinance should be allowed to stand.

Also under appeal is the hearing board’s decision that the county’s 25-ft. buffer for Type 5 streams is invalid. The county is arguing that it provided what is called “Best Available Science,” proving that such buffers are adequate to protecting such relatively small streams.

WEAN, represented by Seattle lawyer Jennifer Dold and Langley residents Steve Erickson and Marianne Edain, made appeals on two separate issues. First, it is WEAN’s contention that the buffers for Type 3 and Type 4 streams are inadequate for the protection of existing resources. Currently, the county’s ordinances place 50 foot buffers on Type 4 streams, 75 foot buffers on Type 3 streams without anadromous fish (salmon), and 100 foot buffers on such streams where salmon are present.

Also, WEAN appealed the Comp Plan’s allowance for rural density, which currently is one residence per every 5 acres of land zoned rural. Members of WEAN feel this will create too much density and sprawl as the county population grows over time.

Each side was allowed a total of 90 minutes of oral testimony, including opening remarks and rebuttal. Much of the debate between the county and WEAN centered on what exactly constitutes “Best Available Science,” when there are often sufficient documents to support contending sides of an issue.

At bottom is the question of whether the county’s existing Comp Plan satisfies the dictates of the state’s GMA. Representatives of WEAN argue that the county is not providing enough environmental and social protections to prevent urban sprawl and ecological degradation. The county argues that, when it comes to such things as stream buffers, more protection now exists than ever before.

This is what the judge must now sort out over the weeks to come before his final ruling.

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