Letter to the Editor: Continuing the CAO Discussion

One of the less helpful and most distracting aspects of the CAO process is the ever-present, breathless purveyors of “the [environmental] sky is falling” meme. No matter what the specific topic being considered, we hear “global warming!” and “the birds are dying!” and “the salmon are disappearing!” and so on. Yes, there are environmental problems. The salmon were disappearing; whether this was related to overfishing, pollution from Seattle, Vancouver and Victoria, or stormwater from a single-family home has not been determined.

Now, what do these exclamations mean for the Critical Areas Ordinance? Virtually nothing. Why? Because the role of our CAO is to protect the “functions and values” of the critical areas in our County. Our critical areas are aquifer recharge areas, wetlands, fish and wildlife habitat, geologically hazardous areas and frequently flooded areas.  The CAO can address only problems caused in San Juan County. So, when reviewing and updating our CAO, our mandate is to determine whether our current CAO rules fail to protect those critical areas. This is a narrowly focused inquiry; it must be—otherwise, it would spiral out of control. If, and only if, our inquiry discloses that existing rules are not protecting critical areas, we must fix them in a way that is clearly connected to solving the problems we found. If protecting a critical area means that someone cannot use his or her land, then the County will be required to reimburse the disappointed owner for the “taking.” With that in mind, let’s look at the assertions of misinformation floating about the County: (letter-to-the-editor-correcting-cao-misinformation)

“No one has shown that our current CAO rules do not adequately protect the functions and values of our critical areas.” Peg Manning Jan. 6, 2012.

Correction: “The number of species listed as threatened or endangered or which are candidates for listing in the Salish Sea almost doubled in just two years.” The SeaDoc Society: https://www.seadocsociety.org/species-of-concern-2011

Rejoinder: While this makes a nice “Sky is falling” headline, it has little or nothing to do with critical areas in San Juan County, or that our critical areas ordinances are not working. There is no indication that there has been a sudden degradation in number or condition over the past two years. If you actually read the story, you learn that it really is, in a sense, a “good news” story–the only reason that the number of species listed by SeaDoc as threatened or endangered “doubled in two years” is that someone discovered that many more species than previously thought use the Salish Sea! More important for our purposes, the listings have nothing specific to say about San Juan County or what might be happening here to threaten the species in question. Indeed, the listing covers species across the “16,925 km² ecosystem”—which includes Vancouver and Victoria and Bellingham, and much of British Columbia and Whatcom Counties.  So, another interesting article, but no useful information about whether the current CAO ordinance of San Juan County is not working. 

“A substantial number of the privately owned parcels in the county (I have heard estimates approaching 50 percent) are undeveloped. The proposed changes, which do not “water down” the existing CAO but substantially increase its burdens, would keep many, if not most, of them from being “developed” (i.e., having a home built on them).” Peg Manning Jan. 6, 2012

Correction: The Reasonable Use Exception will allow use of property in Critical Areas. The Reasonable Use Exception adopted by our County Council allows up to ½-acre development per parcel. This ½-acre maximum is much larger than permitted by other counties. Lawns and gardens are permitted in our Critical Areas and their buffers but are prohibited under other CAO Reasonable Use Exceptions. In our Reasonable Use Exception, the first 2500 square feet of development does not require mitigation. This allows owners without a lot of money to build on a parcel encumbered by a Critical Area and/or its buffer.

Rejoinder: No. The Reasonable Use Exception will not provide relief for most of our citizens. “Reasonable use” is a concept in constitutional law that, paraphrased,  states that if a government prevents a person from using his or her property in the way the owner wishes, but allows the owner some “reasonable use,” the government does not have to compensate the owner for a “taking.”  The test adopted by the Council for “reasonable use” is whether the owner is deprived of “all economic or beneficial use.”  So, if you bought 20 acres for its gorgeous view site for your retirement home, but it includes, say, marbled murrulet habitat, the County can keep you from building on the view site. And if you could graze sheep on the property (an “economic use”) or perhaps even pitch a tent, then you are out of luck—no home site and no compensation. The County could have chosen the far more reasonable “reasonable use” test—whether the restriction interferes with your reasonable, investment-backed expectations—then, you would be entitled to build your home. Second, the notion that you can use 2500 square feet “without mitigation” is hardly consolation. Keep in mind that—last time I looked– this includes not only the house, but also the driveway, the drainfield, and everything else you plan to “disturb” on your property. The driveway alone in many properties would consume 2500 SF. The Council could have omitted driveways—a major factor here—but decided against that.  Finally, if you fail to qualify for the non-mitigation exception, then you go directly to Mitigation Hell. Do not pass go, do NOT collect $200. In fact, go out and collect more like $25,000 to pay for the “expert” reports and studies and delineations and permitting documentation that needs to be done. Hope you’re not in a hurry. And even then, the Director of CDPD will exercise all sorts of “discretion” over how and where you do anything, and your land will be open to his inspection for years following to be sure HIS preferences have been effectuated. Good luck with that.

If it is, indeed, true that other counties allow less than the generous County policymakers, that is cold comfort.  Sure, Ecology has been “persuading” other counties with less attentive citizenry to impose all sorts of new restrictions on land use. As my mother said, if your friend jumps off a cliff, are you going to follow?  More important, San Juan is unlike virtually every other county in the state. We tend to have comparatively very large lots and views tend to be a major factor in land sale and development. A one-half acre maximum is a huge concession in many other counties where lot size is measured in feet rather than acres. When you own 20 acres in San Juan, it is not.

The county has no qualified people to help a homeowner assess Critical Areas on their parcel.

Correction: A grant has been funded to hire a wetlands expert to help property owners locate wetlands on their land and classify their importance.

Rejoinder:  Yes, that’s right, the homeowner is responsible for knowing whether there are critical areas on his or her property, but the County won’t say. You can guess, and be penalized if someone disagrees with you. Or you can hire experts—if you can find any who aren’t working for the County or Ecology already. Look at the experience of some of our neighbors already—they have been told by the County that they have wetlands on their properties, but qualified, licensed engineers conclude otherwise. The definitions of “qualified professional” in the General Section are indecipherable at worst, and redundant and internally inconsistent at best.

I have not heard of this “grant,” nor do I know the qualifications of the person being hired, how long the grant lasts, or how many properties one consultant can address.

Conclusion

It is unkind to taxpayers and citizens and homeowners to trample their rights to a rational, fair process of evaluation and updating of the CAO. We have already spent millions of dollars on this exercise, and what we have is incomplete or dramatically insufficient in scientific support. We are apparently looking at several more years of litigation. I am reminded of The Music Man, but I do not see the uniforms and instruments ever arriving.

Peg Manning
Orcas