More land could become available for residential use in San Juan County’s rural areas in the wake of a recent decision handed down by a Superior Court judge in neighboring Skagit County.

On March 16, Judge Susan Cook struck down a section of San Juan County code that requires 60 percent of any parcel in rural land-use zones to be set aside as open space at the time it’s subdivided. State law, according to Cook, clearly prohibits local jurisdictions, such as counties and cities, from requiring a property owner to set aside land as a condition for development.

That so-called 60-percent set-aside rule was challenged by Friday Harbor attorney Stephanie O’Day, who took the county to court over a 10.57 acre parcel that she and her husband, Pat, were seeking to divide. Their application was rejected because it lacked an open-space design in which 60 percent of the two would-be lots would be excluded from residential uses, such as a home, garage, driveway or septic system. 

Such a requirement, Cook ruled, violates state law in that it acts as a “tax, fee or charge” on land divisions.

She noted that only 30 percent of the 10-plus-acre lot must be dedicated open-space should it remain intact.

“Although San Juan County attempts to characterize its ordinance as a zoning regulation enacted pursuant to the authority of (the Growth Management Act), there is no getting around the fact that when the O’Day property is divided the percentage of that property limited to open-space uses doubles,” Cook said in the ruling. “And Washington law is clear that (it) RCW 82.02.020 prohibits local ordinances that require developers to set aside land as a condition of development.”

In place for about a decade, Prosecuting Attorney Randy Gaylord said the 60-percent set-aside is intended to help ensure the county’s rural characteristics are maintained in its landscape and to provide property owners some flexibility in determining how to manage their land. He noted that an assortment of activities, mostly associated with farming and agriculture, are allowed in set-aside areas and that it’s triggered only at the point of subdivision. 

“It only applies to residential uses,” Gaylord said.

It’s not the first time O’Day and the county have locked horns over the 60-percent rule. In 2005, Judge Alan Hancock sided with the county in upholding the set-aside in a similar case that involved a proposed subdivision and was championed by O’Day. In his ruling, Hancock noted that because it applies in some land-use categories and not in others, most notably in urban growth areas and activity centers, the set-aside functions as a “zoning requirement” and that the county is obligated under the GMA to preserve and to protect its rural and resource lands.

Since that time, Gaylord said set-asides have become increasingly vulnerable in the light of several rulings issued in the state’s higher courts. A section of King County’s critical areas ordinance, in which rural property owners were required to leave 50 to 65 percent of land in order to obtain a clearing and grading permit, was struck down in a ruling handed down by a state appellate court almost a year ago. The state Supreme Court later declined to hear the case. 

The county will have 30 days in which to file an appeal once a “final order” of the ruling is issued. Gaylord said the county legal team expects to meet with the County Council to discuss its options sometime in the near future.