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[1] 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.@[2]  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.[3]


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.[4]  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.[5]

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.[6]  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,






David A. Bricklin




fosc\2004\County Commissioners-031104

[1]           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.

[2]           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.

[3]           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?

[4]           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).

[5]           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.

[6]           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).@