The County Council decided April 9 to postpone the startup date of the critical areas ordinances until March 1 of next year.
The critical areas ordinance, approved by the council in December, was initially slated to go into effect on March 1 of this year. In February, the council extended that effective date until May 1. At its April 9 meeting, the council voted 5-to-1, with Councilman Jamie Stephens opposed, to push back that startup date until the spring of 2014.
Stephanie Buffum, Executive Director of Friends of the San Juans, spoke in opposition to extending the effective date. "I'm shocked and amazed that we are having this conversation" after "we watched this process languish since 2005." Council candidate Lisa Byers thought of Orcas Island suggested the planning staff should use any extra implementation time to "identify a few case studies evaluating the properties" under both the current law and the new law.
Stephens, chairman of the council, said he was voting against the delay because "I thought December would be the better date rather than go into another Spring construction season" with CAO implementation uncertain.
The reasons for the delay as stated in the approved ordinance: some of the tools to assist property owners are not yet complete; staff time for implementation is limited because staff must address any CAO changes mandated by the Growth Management Hearings Board in its September, 2013, decision of the CAO appeals; and, the breadth and magnitude of those CAO appeals creates uncertainty regarding the future structure of the regulations.
At the council hearing, Prosecuting Attorney Randy Gaylord explained that because the ordinances had been duly passed, they were valid laws for Growth Management Act purposes and that extending the effective date would not affect the validity of the CAOs.
Leonard Bauer, managing director of Growth Management Services for Washington state, confirmed that changing the effective date of the CAOs was not that unusual and, unless the CAO was ruled invalid by the Growth Management Hearings Board, eligibility for grants and loans would not be affected.
The validity of the CAOs and compliance with the Growth Management Act could be addressed by the Growth Board, which is presently considering a package of appeals filed against the CAOs by the Common Sense Alliance, Friends of the San Juans and others. The board is expected to issue a decision by September, and whether it will require the county to make corrections to the CAOs without invalidating them remains to be seen.
If the GMHB decides that provisions of the CAOs violate GMA standards and regulations, the CAOs could be found invalid. Under present law, such a finding could expose the county to various penalties, two of which could involve withholding state funding for public works projects under the Public Works Assistance Account or for water pollution control facilities under Department of Ecology loans and grants. Withholding of such funds, however, has been rarely imposed and is considered unlikely.
Meanwhile, a bill being considered by the state Legislature deals with this subject. Engrossed Substitute House Bill 1401, titled "An act relating to the timing of penalties under the growth management act," removes most of the present penalty provisions for planning jurisdictions, such as San Juan County, who have completed required ordinances or regulations, whether or not the ordinances are being appealed or reviewed.
The bill does retain penalties, however, if the Growth Board or a court makes a finding that the county's CAOs are legally invalid, which is the case today under current law.