County gets clean win in plan disputes

The Board of Island County Commissioners won a decisive legal victory Thursday in their push to finalize the county’s comprehensive land-use plan.

In what Commissioner Mac McDowell celebrated as “a clean sweep,” visiting Whatcom County Judge David Nichols decided fully in favor of Island County on a series of legal issues presented Monday in Island County Superior Court.

“People now have a final answer on what our county land management rules will be over the next couple of years,” McDowell said. “The court has made it’s ruling that what we did is certainly lawful. It’s a big day for the public.”

It wasn’t a big day for everyone. Members of Whidbey Environmental Action Network saw their appeals of the county’s Comp Plan struck down after years of challenge.

“To understate the matter completely, we’re very disappointed,” WEAN representative Marianne Edain said Thursday evening, adding that she and WEAN co-founder Steve Erickson were planning to go over the ruling soon and decide their next course of action, if any.

Here, then, is what happened:

Nichols upheld three appeals by the county of the Western Washington Growth Management Hearings Board (WWGMHB); in turn, the court upheld the Hearing Board on three issues appealed by WEAN against the county’s futures land use plan.

The state’s Growth Management Act, passed in 1991, mandates that counties must pass a Comprehensive Plan that accommodates future urban growth while also providing environmental safeguards, largely through zoning laws. Until now, the county’s Comp Plan has been snared in a number of ongoing appeals regarding such issues as wetland protection, rural zoning densities and agricultural practices.

Monday’s appeals broke into two categories, those made by the county against the Hearings Board, and those made by WEAN against the county’s Comp Plan.

County beats hearings board

Nichols reversed the Hearing Board’s decision that the county’s exemption for “existing and ongoing” agriculture violated the GMA’s Critical Areas ordinance. Here, the court upheld the county’s use of “best management practices” as conforming to the intent of the GMA. Essentially, the ruling allows older agricultural practices to be “grandfathered in” to the Comp Plan.

Also granted was Island County’s appeal regarding environmental buffers on Category B wetlands and Type-5 streams. This reverses the Hearing Board’s ruling that the Comp Plan’s existing buffers — 25 feet for both wetlands and Type-5 streams — do not comply with the requirements that “best available science,” or BAS, be used in determining necessary limits.

“The Court agrees with the County that BAS is not one report or one expert or one type of evidence,” reads Nichols’ memorandum ruling. He goes on to say that anyone challenging the county’s use of BAS “may not simply substitute what they think is better evidence.”

In denying WEAN’s appeals of existing stream buffers (Types 3 and 4) and rural densities zoning, Nichols upheld the Hearing Board’s original finding that “we are not left with the firm and definite conviction that the County was clearly erroneous in choosing to adopt alternative regulations to protect rural character rather than downsizing additional lands in the rural area.”

What stands, then, are the Comp Plan’s existing buffers for Type 4 streams (50 ft.), Type 3 streams without salmon present (75 ft.) and Type 3 streams with salmon present (100 ft.). Also, the Court’s ruling upholds the current rural densities zoning, which allows one residence per every 5 acres zoned rural.

County lawyers got the victory

These decisions bring Island County one step closer to having a complete and finalized Comp Plan as mandated by the GMA. However, Nichols’ rulings do not take effect immediately; an order must first be prepared and served on the Hearings Board. Also, the board of commissioners may need to take action on existing interim ordinances that were set up while the appeals were in process.

County Prosecutor Greg Banks said on Thursday that he was pleased with the rulings, adding that civil prosecutor Arne Denny did “a fantastic job” in representing the county at Monday’s court hearing.

“We have felt that our appeals were well-grounded in law and fact,” Banks said. “We evaluated the appeals by WEAN to be weak and insupportable, and vigorously opposed them. The judge’s decision clearly bears out our analysis on the issue.”

Banks said that Judge Nichols’ decision to grant the county its request for an outright reversal of the Hearings Board’s decisions brings the county “much closer to achieving a final resolution” of its Comp Plan.

McDowell also said he was pleased with the court’s decision, especially regarding the ruling on exemptions for existing agricultural practices. He said that it makes good sense to “grandfather” older farms into the Comp Plan.

“I’ve got to believe farming is still what the public would rather see than another housing sub-division,” he said.

“It shows a great job by our legal people,” McDowell added. He praised both Denny and Keith Dearborn, the attorney originally hired by the county to help draw up the Comp Plan, for their work.

McDowell also was critical of WEAN for what he termed the group’s “uncompromising” attitude. He said that of the many environmental groups that challenged and helped form the Comp Plan, WEAN proved unwilling to partake of the “give and take” it required to create the document.

“One person can’t control the county,” he said.

WEAN may appeal decision

Erickson, however, had a different take on the matter.

“I think it’s really too bad that the current county commissioners, particularly Mike Shelton and Mac McDowell, have used the GMA as an opportunity to reduce environmental protection in the county,” he said. “I think that’s really unfortunate and short-sighted.”

Erickson said that it was obvious to him early on in Monday’s hearing that the Judge Nichols “was subscribing to the county’s point of view,” though he did feel WEAN had a chance on the rural densities issue.

“It’s hard to buy the county’s argument that everything is so subdivided that they can’t make a larger lot zone,” he said.

Whether WEAN will take their cause to the state Court of Appeals has yet to be decided, Erickson said, though he admitted that it’s a definite possibility.

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