by Steve Wehrly
The San Juan County Critical Areas Ordinances took a beating during three days of hearings before the state Growth Management Hearings Board on June 23, 24 and 25.
Adding insult to injury, the beating took place in the council's chambers, where eight months ago the county council ended almost a decade of labor when it passed the massive update to the county land-use regulations.
At no time during the three days of hearings on critical areas ordinances did anybody suggest that the contentious litigation would be decided when the Growth Management Hearings Board issues its verdict, expected in September.
GMBH panel chairman William Roehl set the tone early. Within a few minutes of calling the hearings to order, Roehl reminded the petitioners' attorneys (Sandy Mackie, for the Common Sense Alliance and P.J. Taggares Co.; Kyle Loring, for the Friends of the San Juans) that they must overcome a presumption of validity and prove the county action was “clearly erroneous in light of the goals and requirements of” the state Growth Management Act.
That “presumption of validity,” relied upon by Assistant County Prosecutor Amy Vira, is a tougher standard to meet than the usual civil litigation standard – “proof by the preponderance of evidence.”
But the high bar didn't even make Mackie or Loring blink.
The very complexity of the CAOs, mentioned several times by all present, makes experienced land use attorneys like Mackie and Loring confident. Each of them took turns shredding different parts of the statute, but both hammered in the same nail: the complex statute was “clearly erroneous” and must be returned to the council for revisions.
Mackie’s most pointed attack was aimed at the “designation” of county shorelines as critical areas. The “best available science” relied upon by the county led inexorably to flaws in the process and in the critical areas designations themselves, Mackie said. The flaws did not comply with the framework of the state’s goals and requirements, they unfairly damaged his clients property rights, and were therefore “clearly erroneous,” he said.
Arguing for Friends of the San Juans, Loring hammered the county on the “results of the process,” not the process itself. He said some of the results that needed correction were “too many exemptions, not enough buffers, unproven mitigation, and inadequate implementation.”
“An abundance of science revealed that wetlands, fish, and wildlife are suffering current harm and the CAO would fail to protect them from additional injury in the future,” added Friends Executive Director Stephanie Buffum Field, who assisted Loring.
After every attack from Mackie or Loring, Vira compared the county's statute to the controlling state regulations and statutes, saying that because the county's results were consistent with the law, the county's results were clearly not erroneous.
Vira, however, faces her own tough precedent. A review of Hearings Board decisions shows that the board rarely validates a first attempt by any county at writing CAO updates or other development regulations. The “good ones” simply don't get challenged.
And even if Mackie or Loring – attacking the CAOs from opposite points-of-view – can't convince the three-member hearings board, each of them can still appeal any board decision in superior court and the state Court of Appeals.
Whether the county council or superior court is the next venue for “Friends of the San Juans, et al., v. San Juan County,” the CAO still has months or years of further arguments ahead.
After 20 hours of hearings, presiding officer Roehl called a halt to the hearings within minutes of the scheduled time to ensure that the board could make the afternoon ferry to Anacortes.
Roehl praised parties and their attorneys, saying the arguments were “very well done” and “everyone did an excellent job.”
But he wasn't going to just let anybody think that “Friends of the San Juans, et al., v. San Juan County” was all wrapped up. “Because of the complexities of the ordinances and the depth of the arguments,” Roehl said, the board might request supplemental briefs on one or more issues.
It doesn't sound like the hearings board feels the case is almost over. The attorneys probably don’t think so, either.