Parcels of property with public roads or rights-of-way through them can no longer be subdivided based on the presence of the roads.

The Western Washington Growth Management Hearings Board sided with a local environmental group last week when it struck down an exemption for Island County’s subdivision regulations for parcels with “transecting roads.”

The decision was in response to an appeal by Whidbey Environmental Action Network (WEAN), which argued that the exemption allowed creation of substandard-sized parcels in violation of the Growth Management Act’s requirement to reduce sprawl in rural areas and conserve farmland.

The county ordinance exempted all parcels with public roads or transecting rights-of-way from all subdivision requirements, including minimum lot sizes for their zone.

The issue arose in 2004 when a developer used the exemption to subdivide 40 acres of Rural Forest zoned land on South Whidbey along Lone Lake Road into five-acre lots, despite the zoning code’s requirement for a minimum 10-acre lot size.

The Island County Prosecutor’s Office informed the county planning department that the exemption violated state subdivision laws. The department initially proposed removing the exemption. Instead, the planning commission, appointed by the county commissioners, held six hearings in 2005 and 2006 and proposed limiting use of the exemption to land split by roads and rights-of-way acquired prior to 1998. The county commissioners accepted the planning commission’s recommendation and adopted the ordinance as presented.

The amended exemption still applied to all parcels and roads dating back to statehood.

Phil Bakke, Island County Planning and Community Development director, said Tuesday that the planning commission’s main concern, based on the issues raised by WEAN, was that the unregulated segregation process was in some cases being used creatively to organize lots in addition to those authorized through the process.

“In a few cases property owners had finagled loopholes to be able to create additional lots,” Bakke said.

The provision, he continued, was originally added to the code to help make land split by roads and rights-of-way more usable by allowing the utilization of remnant parcels created by the road or right-of-way acquisition to be split off and developed, provided it met county standards for construction.

When the state and county acquire land for roads and rights-of-way, they perform appraisals and the ability to split property may have impacted the appraisals, Bakke said. The people who assessed the properties could have intentionally assigned lower values knowing that the parcels could be split under the exemption.

“The planning commission was concerned that people who hadn’t yet done the segregation would be detrimentally impacted,” Bakke continued.

A 1998 ordinance accepted by the county commissioners effectively removed the clause.

“It closed the loophole to be able to create more lots and developers wouldn’t be able to apply to any rights-of-way or roads after 1998,” the planning director said. “The planning commission tried to preserve the ability for anyone left.”

WEAN appealed to the Growth Management Hearings Board, which heard the issue in December. Using the county’s own zoning and road maps, and the assessor’s parcel information database, the nonprofit group showed that the exemption potentially allowed creation of hundreds of new substandard lots smaller than the minimum allowed in the zoning code in rural areas and farmland designated by the county as having long-term commercial significance.

WEAN legal coordinator, Steve Erickson, who argued the case for the environmental group, said that the case came down to simply “following state law.”

“The county prosecutor told the commissioners that the exemption was illegal and we told them we’d appeal it,” he said. “I’m amazed that they decided to waste tax money defending indefensible, illegal sprawl development rather than just obey state law.”

Bakke said that the action was taken in conjunction with the prosecuting attorney’s office, which felt that the planning commission’s recommendation was legal and defensible. The planning director said he is unsure if the county will appeal the hearing board’s decision.