The San Juan County Critical Areas Ordinance update now in process is intended to protect critical habitat from degradation by humans.

Some folks call the new version heavy-handed, immensely expensive, or bound to drive out the county’s middle and lower class – while others wonder if the measures may be too little, too late for threatened species.

“Every new layer of cost and regulation imposed by the county translates to less work for local families who depend on the construction trades to make a living,” said former county commissioner John Evans.

The San Juan County Council has a fine line to walk as they craft the new critical areas ordinance updates with the help of the county planning commission.

“We can do whatever we want,” said council member Richard Fralick.

There’s just one caveat: anybody can challenge the ordinance before the Growth Management Hearings Board. Last year the Friends of the San Juans took the county before the hearings board twice over the essential public facilities ordinance.

Fighting an appeal takes up county staff time and resources – and if the hearings board deems CAO protection inadequate, the ordinance must be arduously reworded and reapproved.

While the county’s first CAO was adopted in 1991, newer laws require regulations to consider the needs of peregrine falcons, marbled murrelets, southern resident orca, Chinook salmon, and more. The regulations will apply to all activities considered “development,” not just those needing a permit.

As required by law, San Juan County is taking into consideration “Best Available Science” using a synthesis created from 1,900 scientific documents.

Like all counties whose long-range planning is dictated by the state’s Growth Management Act, San Juan is tasked with updating rules that apply to its critical areas, which, as defined by the state, include wetlands, fish and wildlife habitat, aquifer recharge areas, frequently flooded zones and geologically hazardous areas. That update is nearly six years overdue.

“We want to protect critical areas; we want to protect property rights. Those two are sometimes in conflict,” said Fralick.

He said large, same-size “dumb buffers” around all critical areas would be easy for the county to administer.

“We could apply them everywhere, and the critical areas would be protected, but someone is paying for the protection: the property owner,” he said.

Instead, he said the council wants to create what residents will consider “a reasonable compromise of all competing points of view.”

While county planning goals include protecting property rights, economic development, and affordable housing, county deputy prosecutor Jon Cain said the mandate to protect critical areas takes precedence.

“The best we can do is meet these requirements with the fewest restrictions and the lowest cost possible,” said planning coordinator Shireene Hale. The county has not done an economic analysis of what the new ordinance will cost citizens.

The “general provisions” update now being considered would establish five separate critical areas overlays. The ordinance’s effects will be greatly determined by the buffer sizes and details of wetland and fish and wildlife habitat regulations still in the works.

It’s hard for property owners to see how they will be affected using the county’s current public-access, blurry PDF maps.

“I think it’s helpful for people to see what’s on and near their property,” said Hale, “but what controls is conditions on and near the ground … It’s always possible you get into the permitting process and partway through find out, oh, you’ve got some sort of critical area.”

The county may create GIS mapping after a draft set of regulations is established.

For properties that would become “nonconforming” under the update, Hale said there are clear provisions allowing maintenance and upkeep, as well as exemptions for emergency situations.

‘Reasonable use’

Existing ordinance allows “reasonable use” exceptions for properties on which critical areas might preclude building altogether. Ideally, said Hale, such parcels would be bought by a public trust, but the county lacks funding.

“Reasonable use” has been a hotly debated term. Existing rules allow a footprint of the smaller of: 21,780 square feet, or 80 percent of the lot.

A recent proposal allowing just 5,490 square feet for a home and driveway on lots under two acres, with allowances rising for larger lots, recently failed to pass the planning commission. Hale said she expects the existing footprint sizes will be appealed, if adopted.

Under such limitations, low-cost, multi-unit housing like OPAL and Homes for Islanders could be impossible. Hale said RUEs are designed for single family homes and that affordable housing developments “probably should go somewhere else.”

Friends of the San Juans director Stephanie Buffum said opting for the larger building areas is “an issue of concern.”

“The county is going to be putting themselves in a precarious situation,” she said.

Wetlands

Hale said wetlands and fish and wildlife areas are the most likely to cause concern for property owners.

“We’re trying to avoid making anyone hire a professional,” said Hale. “We do need to know where the edge of a wetland is.”

When a wetland is nearby a proposed building site, the county requires a wetland expert evaluation. Current setbacks range from 35-150 feet, and most local wetlands require 50 to 75 feet.

Hale said new buffers being considered range from 15-300 feet, depending on “development intensity,” “pollutant transport,” “wetland sensitivity,” “wetland importance,” and whether a property is within an urban growth area.

Scott Rozenbaum, of Rozewood Environmental Consulting, said that if the construction zone is far enough outside the buffer, “wetland reconnaissance” is often adequate, costing from $300 to $1,800. If a building site is close, or within a wetland, a more complex documentation called a “wetland delineation” is required, costing from $3,000 to $6,000, and potentially more for a multi-family development.

Environmental consultant Ted Tidrington estimated starting points of $2,400 for delineation of up to one acre’ or $3,200 if a buffer is impacted.

Urban growth

While Eastsound is a designated urban growth area, with zoning densities up to 12 or 40 units per acre, it also has two of the island’s five largest wetlands. Development in and near the wetlands will need reasonable use exceptions.

Strictly enforcing wetland buffers in Eastsound could make it difficult to constrain growth within the village, said Fralick, as it effectively removes acreage from the UGA – but not enforcing buffers leaves wetlands unprotected.

Hale said designating another area as the island’s UGA would be cost prohibitive: “It’s where the population and infrastructure are.”

Fralick said the council is taking this issue “very seriously,” adding that expanding the scope of Eastsound’s densely zoned core would create more sprawl.

“The county may need to look at how changes to the critical areas ordinance will affect what can be built there,” said Cain. “If CAO made urban growth impossible … the comp plan and development regulations would need to be changed to allow for it.”