Lawsuit Challenges County’s Essential Public Facilities Ordinance

By Stan Matthews
County Communications Program Manager

On Wednesday, April 14, the Friends of the San Juans petitioned the Western Growth Management Hearings board to invalidate San Juan County’s “Upland Essential Public Facilities” Ordinance, adopted by the County Council on February 9, 2010.

San Juan County Prosecutor Randall Gaylord reviewed the petition Thursday and said, “Boiled to its basic premise, the Friends are saying that the county ordinance should establish a priority which favors resource land and critical areas over new essential public facilities or the expansion of existing essential public facilities.” He added, “I would argue that the GMA does not establish a priority of one of its mandatory goals over another.”

Washington State Law (RCW 36.70A.200) requires counties to establish a process to insure that sites can be provided for facilities essential to the functioning of a community, even if legal or environmental obstacles would otherwise prevent them from being built. Essential facilities include such things as roads, schools, solid waste disposal facilities, and boat and barge landings.

The petition filed by the Friends of the San Juans asks the GMA board to consider a number of questions including whether the County ordinance violates state Growth Management Law by potentially allowing the construction of essential facilities in areas inconsistent with the County Comprehensive Plan’s goals, in various type of environmentally important or geologically hazardous areas, and in agricultural, forest and resource lands.

Both Gaylord and County Council Chair Richard Fralick argue the new County Ordinance goes as far as it can in providing protections.

“The Council adopted an ordinance that is unambiguous about its desire that essential public facilities be sited where they are the most compatible with the existing land use designation and it discourages locating them in critical areas or agricultural or resource lands,” Fralick said, “But we can’t adopt regulations that could absolutely prevent an essential facility from being built.”

The Uplands Essential Public Facility ordinance establishes a permitting process in which citizens and organizations can offer objections to the siting of a proposed facility; provide evidence about the availability of alternate sites and the need to mitigate environmental impacts.

“The actual permitting process is where Friends and others can be most effective – and in a positive way,” Gaylord said. “But I don’t think that they can successfully argue that the Growth Management Act establishes a priority in which environmental concerns trump the need for essential public facilities.”

Normally the Hearings Board would set a date to hear the case within 60-90 days. However the 5 regional Growth Management Hearings Boards will go out of existence in July, to be replaced by a single Board which will deal with issues statewide. This case is expected to be one of the first the new GMA Board will hear.

Meanwhile, according to Prosecutor Gaylord, the County’s ordinance remains in effect and is presumed to be valid under the law.