Fact Sheet #1
June 13, 2011
Dear County Council,
Where is the local environmental problem that requires a new regulatory solution? We deserve an answer. Please prove to us that our existing regulations are inadequate before attempting to impose further restrictions. We take our property rights seriously. You should too.
Locals and visitors alike love the abundant natural beauty of our islands. We have a long tradition of preserving and caring for our land. Our waters are filled with abundant marine life and our shorelines are healthy and vibrant. Can anyone point to a place that has received better protection by both its residents and through public and private programs? Where’s the problem?
The observable facts regarding the environment in San Juan County indicate that current patterns of land use and development are sustainable and that our existing Growth Management Plan protects the environment. As yet there is no evidence that proves existing regulations or our extensive preservation programs are inadequate or have failed to protect critical areas. Consider the following statements from scientists and state agencies:
“Recent evaluations of the near shore and marine habitats of the San Juan region have determined these areas to be in relatively good condition.” (PSAT2005; Shared Strategy 2005).
“Study site. I chose to work in the San Juan Islands, Washington State, USA, because this archipelago is known for its complex topography, strong tidal currents, and abundant marine life.”( J.E. Zamon 10/17/03 Marine Ecology Progress Series)
“Most ecosystem processes in the site appear relatively intact “(Shared Strategy 2005),
“Marine waters in the county are classified as Class AA (Extraordinary) under the state’s water quality standards, and one of the few Department of Ecology listings for the region includes San Juan Channel under “waters of concern” for fecal coliform and dissolved oxygen (Klingeretal.2006).
Compared with contributions from other counties, the contribution of San Juan County to pollution loads in Puget Sound as a whole has been suggested as being relatively small because of the county’s low population density, low-intensity agriculture, and few commercial or industrial facilities. Indeed, several ecological studies have chosen areas in San Juan County as the least-altered benchmark or reference site when comparing with areas elsewhere. (SJC BAS Synthesis 2011)
Shoreline armoring in the area is low compared to the rest of Puget Sound, occurring along about four percent of the shoreline (PSAT2005).
Consider this excerpt from the local press: “Pristine” Waters Costs SJC A $300K Grant"
“The analysis by Ecology of the applications for funding was based on the awarding of points for various categories. For example up to a 150 points could be awarded if a “project directly and measurably addresses a water quality problem.” The County was awarded exactly “0” points on that one, because there are no known water quality problems directly related to failing septic systems near or on the shoreline; if there were, the SJC Health Department would already have taken action. ?
?Any historical problems with the downgrading of commercial shellfish growing areas due to pollution have been resolved by the County. There are, for example, no closed shellfish areas, and have not been any closures due to past aggressive actions by the Health Department for the last twenty plus yeas to inspect and enforce the repair or replacement of systems that had the potential to cause water pollution.”(Island Guardian, 6/16/10)
Local programs like the Land Bank and San Juan Preservation Trust provide open space and give our critical areas an unprecedented amount of environmental protection. Will the areas that are already set aside for protection be considered in the process or will property owners be forced to sacrifice more of their property in order to satisfy some higher (yet undefined) standard?
According to the San Juan County Assessor, state programs like Designated Forest and Agricultural Resource lands, and private programs such as The Trust For Public Lands and The Nature Conservancy, have already set aside and protected from development more than 47% of the acreage in our islands. We have building setbacks from sensitive areas, huge open spaces, pristine wildlife habitat, and clean water. As a result of these programs, the County Assessor reports that only 53.2% of the land in our islands is taxed at fair market value (http://www.co.san-juan.wa.us/assessor/stats.aspx). State and National parks as well as extensive BLM and DNR parcels that are tax exempt, cover almost 20% of our county acreage. Development of the remaining private property in the county has been slow, sensibly regulated, and responsive to environmental concerns.
Recent data from the San Juan County Land Bank reveals that 5,769 acres of land have been preserved by the Land Bank in the Islands so far. We are the only county in Washington to institute this level of environmental protection. Critical areas that have been protected include key shoreline features, wetlands, bogs, marshes, prominent ridgelines, small islands, and important agricultural lands. Islanders are good stewards of the land and this program stands as living proof.
There is no evidence that home ownership, as it is currently allowed on the shoreline or near streams and ponds, is doing harm or that more regulation of private property will help solve some undefined problem. Regulations should be based on a demonstrated need and not on the baseless assumption of a threat. The “precautionary principle” is not one of the GMA and SMA planning goals. (RCW 36.70A.020; RCW 90.58.020).
Moreover, the goals and policies adopted in the San Juan County Comprehensive Plan regarding protection of Critical Areas show that there is a reasoned approach to critical areas regulation in county planning. The Comprehensive Plan cautions that regulation should “Allow for use of property to the greatest extent possible while protecting Critical Area functions and values” (Goal 2) and that the County should “Establish Critical Area requirements that are balanced and related to impacts” (Goal 3). Comprehensive Plan, Section B, § 2.5.B. How can regulations be consistent with these goals if the impacts or threats have not been specifically identified? How can the effects of humans on the functions and values of an ecosystem be judged without a baseline from which to measure?
The identification of a baseline and the existence of a problem or threat is fundamental to limiting regulation to no more than is required. Additional state and local rules mandate “evaluating the effectiveness of the current rules” (RCW 36.70A.130(1)(B)) and judging “the positive effect of State, Federal and local environmental protection programs” (SJC Comp. Plan 2.5.B., Policy 5). The numerous assessments of our local environment recounted above show ”intact ecosystem processes” and that existing local rules and land conservation programs, in concert with state and federal laws and programs, are doing a good job protecting our waters and habitats. According to DOE, San Juan County has the most pristine waters in the State. No cause and effect for environmental degradation or decline of species has been convincingly linked to local land use.
Arbitrary land use regulation has federal and state constitution civil rights and property rights implications. The Washington State Attorney General in an advisory memorandum stated, “The public problem must be proven.In assessing whether a regulation has exceeded substantive due process limitations and should be invalidated, the court considers three questions. First, is the regulation aimed at achieving a legitimate public purpose? There must be a public problem or “evil” that needs to be remedied for there to be a legitimate public purpose. Second, is the method used in the regulation reasonably necessary to achieve the public purpose? The regulation must tend to solve the public problem. Third, is the regulation unduly oppressive on the landowner? Failing to consider and address each of these questions may lead to a substantive due process violation.”
(Advisory Memorandum and Recommended Process for Evaluating Proposed Regulatory or Administrative Actions to Avoid Unconstitutional Takings of Private Property, December 2006).
Claims of due process violations by local governments are becoming more prevalent as property restrictions increase. Recently, the Washington Court of Appeals in the case of Dunlap v. City of Nooksack, No. 66747-9-1(November 2010) found that the establishment of a no-touch buffer had resulted in a taking of property that required compensation by the local government, and that no examination of the public interest advanced by the regulation was necessary. Simply put, when the government enacts regulations that destroy fundamental attributes of private property, it is liable for a total taking. The reason for the regulation is irrelevant; it must pay for the property.
In a case dealing with whether additional regulation was even necessary the superior court in the case of Yakima County v. EWGMHB, 10-2-02
3-9 (February 8, 2011) found that the paucity of science and a local review of buffer effectiveness showed that the existing buffer regulation was doing its job and, therefore, a decision not to increase buffer widths was not a violation of the GMA.
It is of legitimate concern that critical areas in SJC are being arbitrarily designated on maps using satellite LIDAR technology rather than on the ground examination. According to the latest maps the amount of acreage now considered as wetlands (in need of protection) has doubled. This presumes that all these parcels are in need of the same level of protection. No evidence of an inventory was taken to identify what specific functions, values, or species need protection and what they need protection from. Areas such as streams, different classifications of wetlands, and shorelines may have different ecological functions and may not need the same level of protection.
“Therefore, before adopting critical area regulations, it is incumbent on the County to include science that that actually identifies the existing functions and values of the critical area that will be threatened if use of the property is allowed. Swinomish, 161 Wn.2d at 430; Tracy v. City of Mercer Island, CPSGMHB No. 92-3-0001, at 25 (Final Decision and Order, Jan. 5, 1993) (The requirement to protect a critical area "presumes that the critical area presently exists.") (emphasis added).”
The County Council has the ability to examine the known environment, respect the conservation efforts of the community, and conclude that the people, especially those who live full-time on their land, are capable of providing the very best care and management for the place in which they live. Islanders have a track record of environmentalism, preservation and conservation in the Islands. We know our land and are better stewards of the land than government. Thus, enactment of onerous new prescriptive regulations, such as large buffers, or outright prohibitions of development is unnecessary without first finding a problem.
On Behalf of the CAPR San Juan Board,
Frank Penwell
President CAPR San Juan
CC County Administrator, Pete Rose
and San Juan County Prosecuting Attorney, Randy Gaylord
