Widely disparate priorities were evident at a recent Orcas public meeting on the San Juan County Critical Areas Ordinance update.

The workshop was part of the county’s effort to gather community feedback on potential “hot topics” as it devises critical areas regulations.

Questions ranged from, “Where is the science to prove the current Critical Areas Ordinance even needs any changes?” and “If my home burns to the ground, will I be able to rebuild it?” to “Why isn’t the county taking a stronger stance to enforce existing setbacks?”

The county was directed to update its Critical Areas Ordinance (CAO) by 2006 based on “best available science.” Critical areas include: wetlands, critical aquifer recharge, fish and wildlife habitat conservation, frequently flooded and geologically hazardous areas.

Update of the ordinance is required under the state’s Growth Management Act. A draft ordinance, prepared over a three-year period by county staff and a citizen’s committee, was completed in 2009, but it did not find favor with the county council. The county has since hired scientists to develop locally based best available science for wetlands, which is expected to be ready for review by the end of the year. The CAO update is expected to be done by mid-2011.

Many local homes and businesses built prior to the first CAO are now considered “nonconforming,” defined as “a use, structure, site or lot which conformed to the applicable codes in effect on the date of its creation but which no longer complies because of changes in code requirements … Legal nonconforming lots, structures, and uses are commonly referred to as ‘grandfathered.’”

CAO setbacks may be expanded under the update, which could cause more existing structures and uses to be considered “nonconforming.”

In some cases, that grandfathered status can be lost, if, for example, a structure is destroyed or not used for its grandfathered nonconforming use during a period of two years.

As the situation affects housing, County Prosecutor Randy Gaylord noted WAC 173-27-08(8): “‘If a house within 200 feet of the water is destroyed by more than 75 percent, the new structure will have to comply with the current regulations and setbacks.”

“Occasionally that could mean the homeowner cannot rebuild, but more often, without some sort of variance or reasonable use exception, the homeowner will be required to rebuild in a different location,” he told the Sounder. “This 75 destruction rule has been part of the Department of Ecology “default” rules since 1998 and the rules were adopted by San Juan County as part of the 1998 comprehensive plan update.”

A local mortgage broker, who declined to give her name during testimony at the meeting, said a loan underwriter recently told her he would “absolutely not” lend on a property affected in the above manner, and that it would be impossible to insure such a property.

“I think lenders have been generally unaware that these rules have been on the books,” she said.

County representatives at the meeting said that there are tools available to help property owners negotiate new CAO setbacks. County Deputy Prosecutor Jonathan Cain spoke about the “reasonable use exception” (RUE) option.

“The purpose … is to ensure some use of the property,” said Cain. “The United States constitution says the government can’t eliminate all economically viable use without compensation.”

For example, if a property was so covered by critical areas that nothing could be built on it, the owner could apply for an RUE, which would allow them to build on either half an acre or 80 percent of the property, whichever was smaller.

Cain said county staff would consider RUE applications on a permit-by-permit basis, with consideration to best available science.

Attendees questioned the latitude of “reasonable use,” asking, “Could I be forced to build my home on a highly undesirable part of my property?” and “What if the portion of my property considered buildable is only 600 square feet?”

Cain answered that 600 square feet might be considered reasonable for a small property, but not for a larger property.

On that vein, community members asked for clear, easy to interpret regulations to avoid what one called “an administrative nightmare, with so many regulations we can’t work our way through our own system.”

“On the land use side, I know our existing codes are not clear,” said planning coordinator Shireene Hale. “We actively are working on it.”

Attendees also questioned spending on earlier studies by the county, which has hired Dr. Paul Adamus to study wetlands, but not other defined critical areas in the county.

“We proceeded with this wetland study without knowing how we were going to pay for it,” said Hale.

Gaylord said if the county’s CAO update deviates from best available science, it has to justify its decision and/or compensate for it by taking ameliorative measures.

“Some things are requirements, and some are goals. It’s a cumbersome, difficult exercise to deviate, but it’s not prohibited,” he said.