In Defense of the Growth Management Act

Date: Tuesday, April 7, 2015
Time: 9:30 a.m. - 10:30 a.m.
Where: Skagit County Commissioners' Hearing Room
Address: 1800 Continental Place, Mount Vernon, WA 98275

For much of the last century migration from rural areas to the city has been the norm. As people sought to briefly escape the city life, some developers worked to prevent the urbanization of our rural communities by creating a mix of recreational and residential development. In order to protect citizens from the inconsistencies in the way development permits were being issued by counties throughout the state, Washington passed The Growth Management Act in 1990. Under The Growth Management Act, Skagit County was required to choose a plan based on models provided by the state.

A prominent feature of the model chosen by Skagit County was the creation of zones[1]. All properties within a zone had a right to develop if the property was over the minimum lot size for the zone[3]. Another prominent feature was that when any variances are granted the Director of Planning Development Services must certify that the variance is both the minimum variance required and that it confers no special privilege on the lot not enjoyed by other properties in the district[4]. Further, the county must certify that a lot was legally created before any permits can be issued. If the county determines the property was created legally, and the owner can prove there is a right to develop, or if the lot meets the minimum size for the zone[5], then a Lot Certification for Development document will be issued by the county. 

In order for the owner of a property to have a right to develop in a Rural Intermediate Zone, the lot is required to be a minimum 2.5 acres. A property that does not meet the minimum requirement for the zone is termed substandard. Holiday Hideaway is a development within a Rural Intermediate Zone where many lots are less than one third of an acre. Within Holiday Hideaway there are 7 substandard lots that touch a road named Decatur Place. Three of these lots were restricted to recreational use, while the other four have no restrictions. With the adoption of the Growth Management Act substandard lots in rural Skagit County were assumed to be recreational in nature, with no implied right to develop for residential purposes.

A setback is the distance a structure must be away from the property line, a road, or a critical area like water or a cliffUnder The Growth Management Act, in order to develop a substandard lot the owner must prove the project they propose will comply with all Skagit County Codes - including the setback requirements.

Planning and Development Services is required to grant a Reasonable Use Exemption once it has verified that the project as proposed by the property owner complies with all Skagit County codes. A Reasonable Use Exemption is a right to develop a substandard lot. 

A Reduction in Setback Variance is automatically granted to any existing structure that was legally built before the Growth Management Act went into effect. Reduction in Setback Variances for new construction require both a right to develop, and the owner demonstrating why the variance is required. Without an existing structure, the only way to demonstrate a right to develop in Holiday Hideaway is to show an existing septic system permitted before January 1, 2004. If there is no place for both a structure and a septic system the lot is not developable under The Growth Management Act, and would not have met the requirements for a septic permit under the old system.

On January 29, 2013 Hazel Ford purchased 2 of the lots on different sides of Decatur Place, both designated for recreational use. On 4/15/2013 she applied for a permit to build a single family residence through her Architect, Tom Lindsey. The site plan showed the entire lot on the west side of Decatur Place was a critical area near a cliff, and not suitable for development, but showed nothing that restricts development east of Decatur Place. The application also included a Lot Certification for Development based on the existence of a septic system permitted before January 1, 2004. However, the site plan did not include a septic tank or drain field - as would be expected. The application included a request for 3 Reduction in Setback Variances - 2 for the residence, and 1 for the garage. Planning and Development Services accepted the application for the Setback Variance based on the east lot having a right to develop by virtue of a completed septic system permitted before January 1, 2004. It is clear that Planning and Development Services employees knew the required septic did not exist at the time that Senior Planning Supervisor Tawnee Boseman completed the certification.  There was no record of a completed septic, nor any proof of its existence on the site plan. Further, there was a permit for a soil test for a new septic system approved on April 11, 2013, four days before the application to build a single family residence was submitted. From the time Skagit County passed The Growth Management act in 2005, to the approval for this project in August of 2013, there was not a [single] project approved with more than 1 setback variance - except around smoke beach.

The Growth Management Act also encouraged aggregation, the joining of 2 undersized lots to make one larger lot. It is the policy and practice of Skagit County Planning [and] Development Services not to aggregate across a road except for waterfront property or where an established use already exists. Decatur Place is not waterfront property, nor is there any established use across the road, however in this case the aggregation was granted across Decatur Place.

In June of 2013 people owning property within 300 feet of the project were notified of the proposed development. There are six different parties who own property connected to the lots Hazel Ford wants to develop. Three of them wrote letters to Planning [and] Development Services expressing their concern about this project. A fourth letter of concern came from a property owner on Decatur Place. One of these letters to Senior Planner Grace Roeder included the observation that there was no septic on either lot.

Only the applicant or people that commented were allowed to appeal the decision of Planning Development Services to the Office of the Hearing Examiner. Before appealing retired Commissioner Sharon Dillon arranged a meeting between the appellants and the Director of Planning [and] Development services, Dale Pernula. Director Purnula advised the appellants that he saw nothing unusual about the aggregation, the multiple reduction in Set Back Variances or the Lot Certification for development based on the septic that he was aware never existed. The Hearing Examiner Pro Tem, William Neilson, determined that the lot Certification was in error and forced Planning and Development Services to correct it, but left the reduction in setback variances application and the aggregation untouched. Planning and Development Services returned with a Reasonable Use Exception even though there was no demonstration by the applicant that the project complied with the Growth managements setback restrictions as is required to receive a Reasonable Use Exception.

The Reasonable Use Exception was then appealed to the Hearing Examiner. The Hearing Examiner eventually approved the Reduction in Setback Variances, the Reasonable Use Exception, and the aggregations. The Hearing Examiner decided that it was beyond the scope of the appeal to determine if the Hearing Examiner or Planning and Development Services was required to abide by the development agreement.

The only people allowed to appeal a Hearing Examiner decision are the applicant and the appellant and that appeal is to the Board of County Commissioners.

An appeal to the Board of County Commissioners is a closed record process. This means no further evidence and no new testimony is allowed. The Board has three options approve the Hearing Examiner decision, reject it and write their own decision, or send it back for further review. They chose to send it back for further review.

The Board of County Commissioners brought up the same concerns that the appellant had in terms of the setbacks, the aggregation, the lack of certification by the director and the development agreements. They allowed
new evidence only on the issues relating to development agreements in general and this one in particular. The Hearing Examiner created a prehearing order based on the Board of County Commissioners resolution.

But, when the hearing occurred, the format was not followed. New evidence, that was not permitted either by the prehearing order or the Board of County Commissioners resolution was admitted. The Hearing Examiner clearly did not address the issues directed to him by the Board of County Commissioners.

Hearing Examiner: “What I'm curious about is... How did we get here? ‘Cause I am not at all comfortable that Mr. Butler talked the Commissioners into sending this back for remand on the issues that were presented in the Resolutions. So I'm trying to figure out, did the department ask the commissioners to do this? I doubt... Since I ruled for the department, I doubt it.”

Senior Planner: “I just have one question for myself. So, essentially you have accepted everything that has
come in from Mr. Butler, From Mr. Moser, from Mr. Lindsey, you have essentially accepted everything be it ‘New’ or just simply reiterating what we may have already received. Is that a correct statement?”

Hearing Examiner: “That is totally accurate and probably much better phrased statement of my ruling to this point. “

[Discussions on what has been covered so far...]

Senior Planner: “I wanted to be certain and I wanted that on tape so that if Mr. Butler takes today's tape that he clearly understands that everything has been accepted.”

Hearing Examiner: “That is absolutely correct and since he is not here, there is nothing he can do about it.”

C. Thomas Moser, another Pro Temp Hearing Examiner acting as the Ms. Ford’s representative is asking for the
Hearing Examiner to affirm the department’s decision in this case. “… especially with the new information coming in, I believe that you have every reason to affirm the department’s decision in this regard. I will leave it at that.”

Hearing Examiner: “For the record, that is what I thought I did the last time!”

The appellants asked two board members in person if the Board of County Commissioners intended to review the decision or did the appellants need to file one more appeal.

The attorney for Planning and Development Services advised the commissioner assisting the appellants, that an appeal would be necessary. The appellants have already appealed to the Board of County Commissioners once.
Can the Board just send this back to the Hearing Examiner forever? The appellants do not believe that is what the law says. Do you?

The Board of County Commissioners have set a hearing for 9:30 in the morning on April 7, 2015.

Though this case is about development within a small neighborhood on Guemes Island called Holiday Hideaway, this case affects everyone who resides in Skagit County. If Skagit County Officials can ignore the law and create the rules as they wish in the Holiday Hideaway neighborhood, then they can do the same thing in your neighborhood. This is why you need to come to the Board Of County Commissioner hearing on April 7, 2015 at 9:30 in the morning. Please, bring your friends and family to the Board Of county Commissioner hearing on April 7 at 9:30 in the morning and  support your community. Thank you.

Date: Tuesday, April 7, 2015
Time: 9:30 a.m. - 10:30 a.m.
Where: Skagit County Commissioners' Hearing Room
Address: 1800 Continental Place, Mount Vernon, WA 98275