Bricklin ˜Newman
˜Dold,
LLP
DAVID
A. BRICKLIN ATTORNEYS-AT-LAW
CLAUDIA
M. NEWMAN FOURTH
AND PIKE BUILDING
JENNIFER
A. DOLD 1424
FOURTH AVENUE , SUITE 1015
RYAN
P. VANCIL SEATTLE,
WA 98101-2217
TEL.
(206) 621-8868
FAX (206) 621-0512
March
11, 2004
Skagit
County Board of County Commissioners
Administration
Bldg.
700
South Second, Rm. 202
Mount
Vernon, WA 98273
Re: Proposed Lot Certification Ordinance
Dear
Commissioners:
I
write on behalf of Friends of Skagit County regarding the proposed Lot
Certification Ordinance. These comments
are in addition to the oral comments provided by Friends and its members at the
hearing on March 8, 2004 and in addition to written comments submitted by
Friends of Skagit County (FOSC) and its members at other times regarding this
draft ordinance and its predecessors.
As
background to these comments, it is important to remember the significance of
farmlands to Skagit County and the risk to those farmlands posed by the vast
number of lots smaller than current zoning minimums. Agriculture is a viable and significant
component of Skagit County. The
conversion of agricultural land to other uses threatens the major economic activity
and largest employer in Skagit County.
Skagit
Valley currently has approximately 93,000 acres in agriculture. Farm production is a significant contributor
to the County=s
economic security. The American
Farmland Trust (AFT) report titled AEconomic
Impacts of Agriculture in Skagit Valley, Washington@
used 1997 USDA data to determine that the combined economic output and
value-added economic impacts of agriculture exceeded $500 million annually.
Another $100 million annually is created by activities like tourism, wildlife
viewing, fisheries, hunting and recreation.
AFT estimates Skagit County=s
known agriculture economic impacts at $600 million annually. The total farmgate
value of agriculture in Skagit County in 2000 was $227,351,000. The 1992 Census of Agriculture listed the
value of land and buildings in Skagit County for farming at $328,632,000;
machinery and equipment at $51,476,000; crops, nursery, livestock and poultry
at $138,470,00; for a total capital asset value of nearly $520 million.
The
market value of agricultural products sold in 1992 was $138,471,000 for over 80
different crops. For example, the
farmgate value of 3,800 acres of seed crops was $10,580,596 in 2000. In 2001 Skagit County sold $43,895,519 of
milk from the county=s 50 dairy farms, 2.7 million pounds of
potatoes worth $52,207,000, and 8.6 million pounds of raspberries valued at
$4,143,37. (WA Agricultural Statistics Services 2001Annual Bulletin).
Agriculture
is a major employer in Skagit County. According to the United States Department
of Agriculture, the agriculture, forestry and fishing industries employed 8.8%
of the county in 1996, and paid $5,792,618 in wages that year. (USDA, NASS, WA
counties). Using 1997 statistics, AFT
estimated 3,300 people in full-time employment related to agriculture and 5,650
people in employment generated by local agriculture.
In
spite of this significant contribution that farming has made to the County, the
pressures from development are stronger! The Skagit Valley continues to lose
farmland. According to the 1999 WSU
Cooperative Extension Service statistical report, since l940 the county has
lost some 59,000 acres of farmland to other uses.
According
to a CommEn Space study that analyzed
Skagit County building permit data from 1995 until 2002, two hundred and
thirty-eight (238) building permits were issued on 2907 acres of agricultural
zoned land, making an average building
lot in farmland approximately 12 acres.
There is a graphic that is part of the study showing permitted
development activity from 1995 until 2002. Please note the significant number
of permits that have been issued in the agricultural lands. (See AQuestions
and Issues Addressed by Analysis of Skagit County Building Permit Data:
1995-2002@
submitted by FOSC under separate cover.)
In
a memo dated April 4, 2003 to the Planning Department, the Skagit County
Farmland Legacy program stated that there were 5980 substandard parcels in the
agricultural zone alone. The memo also
states that there are 3967 parcels that are 5-acres or smaller, and there are
1269 potential buildable lots in the Ag-NRL between 10 and 30 acres. (See Memo from Rich Doenges, Program Director
of the Skagit County Farmland Legacy Program, to Gary Christiansen, Interim
Director of the Planning & Permit Center, dated April 4, 2003 submitted by
FOSC under separate cover.) In addition, the Trust for Public Lands= Greater Skagit Delta Initiative
generated a map that documents the location and number of vacant parcels less
than 40 acres in the agricultural zone. (See Greater Skagit Delta Initiative
map submitted by FOSC under separate cover)
The
data shows that development of farmland in the Valley is happening and that it
will continue to happen unless the County adopts regulations which limit building
on the substandard lots. Without regulation, the Valley will continue to be
subdivided into low density sprawl.
The County has been well informed about the threats to Skagit
Farmland. A report prepared in 1992 by Skagitonians to Preserve Farming for the
Skagit Board of County Commissioners states that from 1982 until 1987 Skagit
County lost 13%, or approximately 14,500 acres of its farmland. The report
recommended the creation of a farmland protection program that would, among
other things, develop a Transfer of Development Rights and a Purchase of
Development Rights programs, retain 40 acre minimum zoning for agricultural
lands and discourage extension of sewer to farm land. (See AFarmland Preservation in Skagit County:
Program Options and Recommendations, 1992@
submitted by FOSC under separate cover.)
FOSC has had a long interest in protecting farmlands in the
Skagit Valley. Those efforts --
including some good efforts by the County -- are in danger of failing because
of poor planning decisions made in the past.
Large numbers of lots too small for farming have been created throughout
the Skagit Valley. The Lot Aggregation
Ordinance was a mechanism developed by the County to deal with that
problem. With the repeal of the Lot
Aggregation Ordinance, some other mechanism must be established to effectively
address this problem. The Hearings Board
has so ruled. Our concern is that the
present draft will not address the problem but rather perpetuate it.
As we stated in an earlier letter, while precise numbers are
apparently not available, our understanding is that there are a vast number of
substandard lots in the Rural and Resource Lands zones, numbering perhaps
10,000 to 20,000. Obviously, development
of these lots could substantially undermine the County=s
efforts to protect Rural and Resource Lands consistent with GMA
requirements. Based on RCW
36.70A.060(1), the Hearings Board has instructed the County to adopt Ameasures that prevent incompatible
development and uses from encroaching on Resource Lands and their long-term
viability.@ This draft ordinance will not satisfy that
requirement.
Confusing Structure and Wording. The GMA speaks to a planning and permitting
system which is timely, fair, ensures predictability, and encourages the involvement
of citizens. RCW 36.70A.020(7) &
(11). As explained below, in various
respects, this confusing ordinance will not serve any of those purposes.
Exceptions for Residential Uses. The basic premise of the ordinance is that
development on substandard lots is prohibited, but the ordinance is riddled
with exceptions. These exceptions,
individually and cumulatively, destroy the supposed intent of the ordinance.
Exception for Residential Development on Lots Created Prior
to 1965. The first exception allows
residential development of subsized lots if they were created prior to the
County=s first
subdivision ordinance in 1965. SCC
14.16.850(4)(C)(i). Given the large
number of subsized lots that were created prior to 1965, this exception creates
a huge loophole. This exception does not
require any minimum size for the lot, that the lot have utility service, or
anything else. No matter how small the
lot, residential development would be allowed.
Regardless whether the substandard lot is next to other substandard lots
under common ownership, each individual lot would be allowed to be separately
developed for residential purposes. This
loophole is unjustified and should be eliminated.
Exception for Residential Development on One-Acre Lots if
Water OR Sewer is Available.
Proposed SCC 14.16.850(4)(C)(iv) would allow residential development on
one acre (or larger) lots if water OR sewer is available. There are several flaws with this exception. As the Skagit County Farmland Legacy
Memorandum (Apr. 4, 2003) points out, this exception, if it survives at all,
should require both water and sewer. (The Legacy Memorandum was commenting on a
prior draft of the ordinance but this flaw existed in that version, too.)
Second, even if both water and sewer service are required, the
exception sweeps too broadly. Our
understanding is that this exception was rationalized on the basis that if a
landowner has made an investment in sewer or water service, they should not be
precluded from utilizing that investment by developing the property for
residential use. However, the exception
does not require that the landowner make an investment in water or sewer
service. Rather, this exception allows
the sewer and water availability criteria to be met in one of three different
ways. The first merely requires that
there be an existing water or sewer connection.
There is no requirement that the landowner has expended any funds to
extend water or sewer service to the property.
The second method for qualifying under this exception apparently
does not require a current water or sewer connection at all. Rather, all that seems to be required is that
a water or sewer connection is Aallowed@ in the future. While the permission for a future connection
must be pursuant to a binding written contract, that hardly equates to the
landowner having made a significant investment (or any investment) to extend
sewer or water to the lot. This method
for qualifying is far broader than required to satisfy any equity concerns.
The third method for qualifying is that the owner
has paid or is currently paying water or sewer assessments through a ULID or
LID. The ordinance establishes no
threshold for the amount of these assessments that must be crossed before this
qualifying criterion is satisfied. A
property owner who had been paying assessments for a relatively short period of
time (e.g., less than five years) could qualify even though the economic
investment at that point would be quite small.
Similarly, the assessments could have been paid (but ended) years ago,
with no current expectation of service.
The over-breadth of these exceptions renders them inconsistent with the
ordinance=s
supposed intent and the requirements of the Act.
Exception for Residential Development if Water or Sewer is
Available -- Unconstrained by the One Acre Lot Size Limitation. The next bundle of exceptions in the
ordinance includes two that repeat the utility-related problems associated with
the prior exception, but now unconstrained by the one-acre requirement. According to proposed SCC
14.16.850(4)(C)(v)(B) and (C), any substandard lot, regardless of size,
can be developed for residential use if it has a valid permit for an on-site
septic system (or if a septic system has been installed, pursuant to a permit),
or if the property has an Aindividual
water system evaluation pursuant to Chapter 12.48 SCC.@ Assuming that these two exceptions were
motivated by an effort to be fair to persons who have made substantial
investments in their substandard lots, the exceptions are drafted too broadly
to address that narrow purpose. For
instance, the sewer system exception does not require that the sewer system be
installed, only that a permit for it has been issued. There is not a sufficient economic
undertaking in obtaining a sewer permit to justify development of a substandard
lot on that basis.
Exception for Residential Structures Where There is a Vested
Application for an Accessory Structure.
Proposed SCC 14.16.850(4)(C)(v)(A) allows a residential development if there
exists on the lot already another structure (unless the existing structure was
built after 1990 without a building permit).
This exception makes no sense. If
the substandard lot already has a residence or other structure on it, why does
an exception need to be made to allow another structure to be built on
the substandard lot. This exception
should be eliminated.
Exception for Residential Development Related to a Vested
Permit for an Accessory Structure.
Proposed SCC 14.16.850(4)(C)(v)(D) is very confusing. It states that an exception allowing
residential development exists if the lot of record Ahas
been issued a permit for an accessory structure which vests a primary structure
pursuant to SCC 14.02.050 (Vesting).@ It is not clear under this or the
cross-referenced section how the issuance of a permit for an accessory use
would create a vested right for a primary use.
An accessory use, by definition, requires that the primary use already
be in place or is being developed in conjunction with the accessory use. See SCC 14.04.020. This exception makes no sense. It should be deleted.
We understand that staff recommended this exception on the basis
that many people first build a garage, live in that for a while, and then want
to build a home on the lot. Yet as
worded, any accessory structure (with living space in it or not) would satisfy
the requirement. Moreover, it is not
necessary that the accessory structure be built; only that a permit application
for the structure has been filed. If the
intent of this exception is as described above, then it should be reworded to
address that situation narrowly.
Exception for Residential Development on Substandard Lots in
the Natural Resource Zones. Proposed
SCC 14.16.850(4)(C)(vi)(C) allows development on certain substandard lots in
the Resource Lands zones. The minimum lot size in these critical
Resource Lands zoning districts ranges from 20 to 40 acres. This exception would allow lots as small as
ten acres to be created in these zones.
This exception strikes at the heart of the supposed purpose of this
ordinance -- to protect Resource Lands from incursion by non-resource
uses. Allowing for -- and creating the
expectation of -- development on ten acre lots in the Resource Lands zones will
totally undermine the County=s
efforts to protect and conserve Resource Lands for long-term commercial
agricultural use (as documented in the testimony of the County Agriculture
Advisory Board, the Western Washington Agriculture Association, and
Skagitonians to Protect Farmlands, among others)..
Exception for Residential Development on Lots Less Than Ten
Acres in the Resource Lands Zones if the Land is in the Open Space Tax Program. Proposed SCC 14.16.850(4)(C)(vi)(D) and (E)
allow for residential development in the Resource Land Zones on lots of any
size if the land is enrolled in an open space tax program. The problem with
these two exceptions relates to the criteria for obtaining Open Space Tax
Status. Those tax status programs do not
require that land be retained in agricultural production or forestry
permanently. Yet once that tax status is
used to develop the property residentially, the residential structure is there
permanently. Thus, this exception can be
used by the owner of property currently in the Open Space program to build a
residence. In the future, the property
can be withdrawn from the Open Space program but, of course, the residence will
not be torn down at that point.
We oppose any exceptions from the 40-acre minimum lot size in
the agricultural zone, but if an Open Space exception were to apply, it ought
to be linked to a requirement that the land be maintained in the agricultural
Open Space program in perpetuity (or at least as long as the residence remains
standing).
Exception for Residences Supposedly Accessory to Timber
Resource Management Activities.
Proposed SCC 14.16.850(4)(C)(vi)(F) provides an exception for
residential development on subsized lots if the residence is accessory to
timber resource management activities. This exception would be acceptable if there
were an effective manner to enforce the Aaccessory
use@ limitation. But experience demonstrates that efforts to
enforce this type of limitation in other related contexts has been
unsuccessful. The County staff has acknowledged
as much. Even less enforcement is
available in this context where there is no public participation in the lot
certification process. Any owner of a
subsized lot in the Forest zone can claim that the residence will be accessory
to the forestry use. How can the County
possibly determine the accuracy of this representation? As written, the exception provides another
gaping loophole into the minimum lot size requirements on Forest zoned land.
Exception for Non-Residential Uses. Proposed SCC 14.16.850(4)(A)(i) addresses an
exception for non-residential uses.
However, the subsection is written in a very confusing manner. The section states that if a Lot of Record
does not meet the requirements for residential use, it may qualify for a
non-residential use if it Aotherwise
meets all of the requirements of the zone in which it is located.@
Ignoring the word Aotherwise@ for a moment, this sentence seems to
require that the proposed non-residential use meet all zoning requirements,
including minimum lot size. But then
this exception would not make any sense.
So presumably, the word Aotherwise@ is intended to mean that the minimum
lot size requirement would not apply for a proposed non-residential use. But the wording is anything but clear.
Assuming that the intent of this section is to allow
non-residential uses to be developed on sub-sized lots if the use is otherwise
allowed, then this section is incredibly overbroad. There are no other restrictions imposed by
this section. It does not matter when
the lot was created, how small it is, how far from utility services it is, what
the economic expectations of a landowner are, whether the land is in Open Space
tax status, or anything else.
Apparently, any allowed non-residential use is allowed on any sized lot
anywhere in any zone. This provision, if
so construed, effectively eliminates the minimum lot size requirements for all
non-residential uses in all zones. This
is blatantly inconsistent with the Act=s
requirements that require development regulations to conserve the long-term
agricultural use of agricultural lands (especially given the number of
non-farming uses allowed on farmlands in the Skagit County Code, e.g., a
cucumber and cabbage processing facility).
It also frustrates the County=s
efforts to protect rural values and to protect resources lands from incursion
by development on Rural zoned land.
Under the ordinance, if the proposed residential use on a subsized lot
did not meet any of the exceptions (hard to believe, given how many exceptions
there are), then the landowner could nonetheless develop the lot for any
allowed non-residential use. In other
words, the landowner may not be able to build a single-family home, but the
landowner could (depending on the zone) build a church, kennels, adult group
care facility, or an indoor shooting club.
This does not make any sense and is inconsistent with the County=s obligations to protect Rural Lands
and the Natural Resource Lands that they often abut.
Innocent Purchaser Provisions. The sections of the ordinance dealing with
the so-called Ainnocent
purchaser@ are
extremely confusing. These sections of
the ordinance definitely need to be rewritten to be clear and unambiguous. If we understand the ordinance correctly, it
appears that the innocent purchaser provision comes into play when there is a
sub-sized lot that was created illegally after 1965 or (under certain
circumstances, if it was created prior to 1965). It appears that if the lot was created lawfully
before or after 1965, it qualifies as a Lot of Record for SCC 14.04.020, in
which case the Ainnocent
purchaser@ question
does not arise. See 14.06.045(1).
The apparent effect of the innocent purchaser provision is that
if a lot was improperly created, the landowner can still convey it (and
possibly build upon it) if the landowner qualifies as a Ainnocent
purchaser.@ To build on a substandard lot as an innocent
purchaser, one of the options is to demonstrate that the lot was created
legally. See SCC 14.18.000(9)(d)
which cross-references SCC 14.16.850(4)(C)(i).
This does not make any sense. We
are concerned that because of the manner in which these sections have been
drafted, something other than this is intended, but it is not apparent what
that might be. These sections should be
deleted or re-written to make their intent clear.
Inadequate Public Participation Provisions. The proposed ordinance essentially excludes
the public from participating in the process of determining whether a lot
qualifies for residential or non-residential development despite being
subsized. The procedures do not include
providing notice to neighbors, public interest groups, or anyone else. While an appeal process is provided, because
no notice is given to third parties, the likelihood of an appeal by anyone
other than the landowner is extremely unlikely.
Moreover, even if a third party happened to learn of the application,
the standing provisions are such that a third party might be precluded from
appealing on that grounds as well. Not
only should notice be provided, but the standing provisions should be modified
to make clear that standing will be assessed in light of the proposed or
possible underlying development, not just the request for Lot Certification.
Thank you for this opportunity to comment on the proposed
ordinance. We strenuously urge the
County not to adopt this ordinance at this time.
We would like to work with the County to develop an ordinance
that will satisfy the requirements of the Growth Management Act and truly
protect farmlands in the Skagit Valley.
One method for accomplishing this would be through the adoption of a TDR
(ATransfer of Development Rights@) ordinance. Such an ordinance can simultaneously protect
Resource and Rural Lands while encouraging additional growth in urban
areas. TDRs have been implemented
successfully here in Washington (e.g., King County) and nationally (e.g.,
Maryland). There are many talented and
knowledgeable people in the agricultural, development, planning, and legal
communities that could assist in developing such an ordinance. We believe that would be a far more
productive effort for everyone involved than continuing down the current path.
If we lose these farmlands now, they will be gone forever. We have made many land use decisions in the past
that have facilitated the loss of farmlands.
Let us not perpetuate the problem now.
Very truly yours,
BRICKLIN NEWMAN DOLD, LLP
David A. Bricklin
DAB:psc
fosc\2004\County
Commissioners-031104
The ordinance states that the
exception is available if the ALot
of Record . . . has paid or is currently still paying water and/or
sewer assessments.@ The ALot of Record@
does not pay assessments. The owner of
the lot does. While we do not believe
this subsection should be retained, if it were retained, it should be reworded.
The evaluation must have been
submitted and approved prior to June 1, 1997.
This exception also includes a parenthetical that states Aincluding installation of the well.@
The import of this parenthetical is unclear. If the intent is that this exception requires
not only an evaluation but also that the well has been installed, then Athe installation of the well@ phrase should be included in a
separate sentence and it should be made clear that the well must be
installed. As written, it could be
construed to mean that the evaluation must include an evaluation of the
installation of a well.
Worse yet, this exception applies
even if the structure was built illegally, i.e., without a building
permit, as long as the law breaking occurred prior to 1990. What sense does that make?
This exception would apply in lands
zoned for Rural Resource-Natural Resource Lands (40 acre minimum lot size
without CARD); Agricultural-Natural Resource Lands (40 acre minimum lot size);
or Secondary Forest-Natural Resource Lands (20 acre minimum lot size).
After eight years in the open space
program, land can be removed with impunity.
In the first eight years, the landowner can remove the land from the
program upon payment of a 20 percent penalty -- which may be worth the price of
obtaining approval to build a residence.
Because the penalty is 20 percent of the taxes deferred as a result of
the open space designation, the penalty would be quite slight in the first year
or two after the designation was granted.
In other words, a landowner who has been farming the land, could apply
for open space tax status, obtain it, use the status to build a home, and then
revoke the status and pay a relatively slight tax penalty. There also is no penalty if the land is taken
out of farming within two years of the death of the landowner.
The Aaccessory
use@ limitation is the result of this
section=s
cross-reference to SCC 14.16.410(3)(c).
There is a typographical error in the draft ordinance. The cross-reference inadvertently reads as ASCC 14.16.410(c).@
