At hearing, Culp suggests putting off action for a year

By Marcy Stamper

Okanogan County Superior Court Judge Christopher Culp suggested waiting one more year to see if the county and the two environmental groups that challenged the county’s comprehensive plan can work together to revise the plan so that it protects water and agriculture while allowing for growth.

Culp heard oral arguments in the case from Tim Trohimovich, the attorney for plaintiffs the Methow Valley Citizens’ Council (MVCC) and Futurewise, and from Sandy Mackie, special counsel for Okanogan County, on Thursday (Dec. 17).

Because the county expects to spend the next year updating its zoning code, Culp urged the attorneys to consider extending the comp plan matter to December 2016. That would allow them to evaluate the effects of the zoning together with the comp plan. Zoning applies concepts from the comp plan to specific geographic areas and land uses.

“Maybe [the attorneys and county planners] can work together to come up with the best possible product in the end,” said Culp. “There’s one lawsuit now. In one year, my fear is I’m going to have another lawsuit, maybe from another group. I’m trying to avoid that. These issues are terribly complex — we will never satisfy 100 percent of the population.”

“It seems it might be prudent — and a better use of attorney fees, which I’m guessing are significant — to work in a spirit of cooperation, instead of litigation,” said Culp.

Whether or not the two parties agree to a postponement, Culp was not ready to rule on the case. “I won’t make the decision this afternoon — there’s too much at stake,” he said. “The volume and nature of the material are too great. I want to take my time, review the materials and arguments, and make a reasoned decision.”

Culp said he was not bothered by most language in the plan, except for its failure to address protections for water quality. “To me, water’s the primary concern,” he said.

“It’s very scary when you see the possibility of 24,000 lots,” he said, referring to existing lots in the Lower Methow Valley that could theoretically be developed, even though there is not enough water to supply them.

Other concerns

In addition to concerns over water and farmland, MVCC and Futurewise said the plan does not protect county residents from wildfire and landslides.

The two sides also differ as to the purpose of the plan. While they agreed that a comp plan is a blueprint for future development, the plaintiffs assert that state law requires the county to disclose limitations on development, such as a lack of water or land reserved for farming.

The county says these issues are covered in other documents and regulations. For example, a property owner must demonstrate the availability of adequate, drinkable water to get a building permit.

“We’re aware there are limitations. Some basins are already closed [to development],” said Mackie.

Both sides acknowledged that there are people who already own land in the county and think they can build on it, but who won’t be able to because that water has already been allocated for use elsewhere.

“Trohimovich and his groups have done a good job of saying that if the entire town of Issaquah moves here tomorrow, we’re in trouble,” said Mackie. “We agree.”

The county has other regulatory tools that will protect it from runaway development, said Mackie. “Comp plans don’t regulate,” he said. “You’ll see, when we do the EIS [environmental impact statement] on zoning, what the zoning tools are.”

In writing the plan, county planners calculated that there is adequate land available to sustain agriculture, but exactly where farming will take place will be shown in the zoning ordinance, said Mackie.

Trohimovich argued that the county is required to analyze the “absolute, quantitative impacts” that growth allowed in the comp plan will have on the environment. It is not enough to compare effects with existing conditions, which have developed under the county’s old comp plan from 1964, he said. The county started working on the update of the plan seven years ago.

The county’s comp plan shows the general location of land uses, said Mackie. It points to public lands as a source of major water resources, but is not the mechanism for protecting water.

Trohimovich criticized the plan for limiting discussion of water to water rights. He said water quality is never mentioned.

Interim zoning

The county is currently using an interim zoning plan, which is set to expire this month. The purpose of the interim ordinance is to preserve the status quo by preventing people who own property in an area where minimum lot sizes have changed from 1 acre to 5 acres from “rushing to beat the downzone,” said Mackie. The effect of the interim ordinance would be to keep those property owners from splitting up their land now into parcels smaller than 5 acres.

On Monday (Dec. 21), the county commissioners were scheduled to discuss extending the interim zoning ordinance, which was set to expire this month, for another six months to have time to revise it and conduct the environmental analysis.

MVCC and Futurewise filed the lawsuit in January 2015 after they appealed the plan to the county’s hearing examiner and he upheld the plan. The Washington Department of Ecology joined the lawsuit in September because of concerns over water adequacy and quality.

Both attorneys are talking with their clients to see if they are amenable to continuing the case for another year and trying to resolve issues in the plan, informed by the work on the zoning ordinance.

In an indication of the complexity and import he attached to the case, Culp asked each attorney to prepare a final order outlining a resolution of the case to help him better articulate his decision. Culp said he had never asked lawyers to do this in his three decades as a judge.

Culp gave the attorneys until Jan. 15, 2016, for the orders and their decision about continuing the appeal for another year. If they don’t agree to the year-long extension, Culp will issue his decision by Jan. 29.