Emergency moratorium causes uproar

Ability to plat to 10 acres won’t apply to potential Resource Lands

Statesman Examiner

Stevens County, WA - 4/18/02 - A number of real estate developers were upset after Stevens County Commissioners attempted to pass an emergency moratorium on potential resource lands during a hearing last Monday, April 8. Because information was incomplete, the discussion was continued until Tuesday, April 16 at 3 p.m., just hours after the Statesman-Examiner went to press.

Commissioners were holding a public hearing on a proposed moratorium on the creation of parcels under 10 acres—a decision also delayed until April 16. That would be a partial fix for the 20-acre moratorium that was indirectly instituted when the Eastern Washington Growth Management Hearings Board declared the county’s platting titles out of compliance with the Growth Management Act, which the county opted into in 1993. Until the issue is resolved, the Board’s order of "invalidity" has effectively shut down all platting (the subdivision of lands) that resulted in lots under 20 acres until the issue is resolved. Lots over 20 acres are not subject to county oversight.

The county hasn’t yet completed mandatory elements of Growth Management, including their Critical Areas Ordinance (in the revision stage) and their Resource Lands designation. Once those have been designated, then the Comprehensive Plan is to be completed and development regulations for the lands that remain may be drafted. All of these items were to be completed by September, 1997.

Much of the reason that the platting titles were declared non-compliant was because neither Critical Areas nor Resource Lands had been set aside, leaving the potential for the development of lands that the GMA says should be reserved. Resource Lands are considered those with "long-term significance" to the commercial production of timber, agriculture and minerals.

The proposed moratorium commissioners viewed Tuesday sets aside potential agricultural lands according to soil types, potential forest lands according to soil type and land slope, and mineral lands according to designation on the Department of Natural Resources’ (DNR) "Surface Mineral Map." Commissioners may choose to designate all or part of the lands in each classification—the proposal targets the entirety of agricultural classes and portions of the timber classes, though all may be included. The proposal would also restrict all mineral lands shown on the DNR map.

"Until we can get it out to the public, I think all of it will be under the 20-acre moratorium," said County Commissioner Vickie Strong. "But we need to see what it involves. I don’t think it is as much as people think."

The map illustrating the various land classifications was not yet available.

A maximum of one home per 20-acre parcel on potential resource lands is also proposed in the interim.

The choice to establish 20 acres as the minimum set-aside for potential Resource Lands is also up for grabs—20 acres may not be large enough to satisfy various petitioners or the Hearings Board. While Strong said that it was not being considered, minimum parcels as large as 80 to 160 acres were mentioned during the April 8 discussion, and were a primary cause of the uproar that followed the meeting. Those were simply examples of what other counties have done, she said.

Satisfy Board, petitioners

Real estate developers who attended the meeting said that commissioners told them they proposed the emergency moratorium on potential Resource Lands in part to satisfy the Hearings Board and the petitioners in the lawsuit. Petitioners in the suit include the Loon Lake Property Owners’ Association, Loon Lake Defense Fund, William and Janice Shawl, Larson Beach Neighbors and Jeanie Wagenman, who have been successful in their arguments that the county isn’t protecting lands while sorting out its Growth Management issues.

"One of the reasons we were doing that was that, if we do go down to a 10-acre moratorium, and if we don’t have Resource Lands designated on a map, (Resource Lands) could be destroyed during that time," explained Strong.

The proposed 10-acre moratorium would not apply to the Loon Lake Watershed, Strong added. That, too, would remain at a 20-acre minimum.

The emergency moratorium is proposed to be in effect until the adoption of a compliant Critical Areas Ordinance "to assure the conservation of critical areas," and a Resource Lands Ordinance "to assure the conservation of natural resource lands."

Emergency moratoria may be imposed without a public hearing, so long as a public hearing is held within 60 days of its passage. The moratorium is not to be in effect for more than six months, although "one or more" renewals of the six-month period may be applied for.
"We’re not pushing anything through," Strong said.

But no one can explain a caveat on one of two RCWs that allows the passage of an interim moratorium without public input. RCW 36.70.795 allows the maneuver outright, so long as the public is included in the process within the aforementioned time frame.

RCW 36.70A.390 says virtually the same thing. But an additional paragraph reads that "this section does not apply to the designation of critical areas, agricultural lands, forest lands, and mineral resource lands . . . prior to such actions being taken in a comprehensive plan . . . and implementing development regulations . . . if a public hearing is held on such proposed actions."

"I have no idea," admitted Lloyd Nickel, assistant prosecutor for the county, who helped draft the proposal at the commissioners’ request. "I have not understood that last paragraph ever since I first read it."

Municipal Research Services Center lawyer Paul Sullivan said that "I haven’t ever given any thought to this. Even if I had done so, I’d have to tell you you’d have to ask your own attorney, or the county’s attorney."

An emergency moratorium was deemed appropriate, according to Strong, because county planners worried that the normal hearings process would give developers with lands in the proposed areas time to rush the counter with requests for plats to10 acres—rendering moot their attempt to conserve the land until a Resource Lands Ordinance is finalized.

Local realtor Dave Sitler is no fan of the GMA in the first place, though he’s worked with the county on portions of it. He calls the moratorium on private lands a "land grab."

"It’s the biggest land grab, property rights thievery in the history of Stevens County," Sitler said. "It’s worse than anything I’ve ever seen. I can’t even believe they’re considering this. It’s flat-out stealing, stealing your property rights. That’s all it is. There’s no compensation for (your land)."

‘Just compensation’

Second Substitute House Bill 2697 was passed on March 14, 2002. The act relates to "incorporating effective economic development planning into growth management planning," and states that "private property shall not be taken for public use without just compensation having been made."

Many believe that restricting the uses of private property for the public benefit is the same as public use.

Local realtor Kelly Davis has invested in many timberlands. He said that this proposal simply adds to the slew of federal laws that have removed, acre-by-acre, pieces of his lands from use.

"They’ve basically taken ownership of tracts of land beside a stream," he said. "Now, they’re going to cut even deeper. The timber owners, more than anyone else, have borne the weight of protecting the public resource. Now, the county is basically stealing a portion of my net worth by placing me in a certain category—i.e. Resource—that inhibits my ability to sell my property.

"I’ve chosen to invest money at home, where I can see it, and that’s real estate," he continued. "Now, I feel as though I would have been better off to have bought Enron stock, because at least I would have had the thrill of the chase, and deciding when to get in and when to get out."

Colville Realtor Denise Rogers said that plenty of the county is already locked up, anyway.
"Growth Management’s goal is to preserve the rural character, and they don’t want people to hurry up and put parcels together, because it might hurt the rural character," she said, "even though there’s 42 percent that can never be touched.

"The question is not ‘are we going to lose property rights through Growth Management?’" she continued. "The answer is yes, we are. It’s only when."

Estimates on the amount of publicly-owned lands in Stevens County vary by a few percentage points. Local forestry consultant Maurice Williamson and DNR both cite 38 percent as the amount of Stevens County that’s owned by the public or by tribes, which are exempt from the regulations. According to DNR, 86 percent of Stevens County’s 1999 timber harvest was derived from private lands.

‘Want our part of the state stifled’

Davis is one of many who contends that the GMA is geared toward the west side of the state, which, at this point, he said, he’d "just love to see slip into the Pacific.

"Just because the people in Seattle live in a concrete and asphalt jungle, they want our part of the state stifled and everything to stay the same," he said. "They’re reducing our ability to grow and prosper. Adverse terrain, wetlands, et cetera, already prevent a tremendous amount of private land from being developed."

"We’re not a county that has a lot of density," Rogers added. "Drive on (Hwy) 395, you’ve got four cars in front of you. Drive in Seattle, you’ve got 70 cars in front of you. You’re potentially taking away people’s retirement, and more rights that might help them supplement Social Security."

Local realtors worry that property owners are losing income they were depending on to carry them through retirement.

"A lot of people here have not invested in IRAs and retirement accounts," Rogers said. "A lot of these guys who have worked in the woods or have farmed, that’s their retirement: their land."

"I am terribly embarrassed by it," Davis said. "And what’s really sad is the people in this county who have invested in this county, who’ve paid their taxes, who’ve provided jobs, voted for school levies and have carried the burden in so many arenas by virtue of their taxes, are now going to be kicked squarely in the shorts.

"If people quit buying real estate because of this kind of thing," he added, "we’re really in a lot of trouble."

Strong urged citizens to remember that "this is one of the elements of Growth Management, and we have to come up with a Resource Lands."

Even if the emergency moratorium is passed, she added, the county will "still have to take all of this out to the public."

Despite the uproar, and the GMA directive to plan according to "local circumstances," Sitler feels that the 20-acre moratorium won’t be enough to satisfy the Hearings Board.
"The state’s not going to be happy with that," Sitler said. "We already have 20 acres."
Stevens County Planner Dennis Sweeney asked his department not to comment until after Tuesday’s hearing.



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