GMA: Commissioners clash over legal counsel

By Scott Rasmussen
Islands Sounder

Orcas Island


Eastsound, WA- County commissioners clashed last week over public statements made by Prosecuting Attorney Randy Gaylord about the Growth Management Hearings Board.

On Nov. 13, Gaylord issued a press release stating the county could not “opt out” of the Growth Management Act (GMA), and that the Hearings Board was “doing its job” when it ruled the Eastsound Urban Growth Area did not comply with state planning guidelines.

Those statements drew fire from commission Chairman John Evans, who called on Gaylord to explain his comments before the commission. Evans also sought support of fellow commissioners to try to opt out of the GMA. Evans said state representative Jeff Morris, D-Mount Vernon, was willing to sponsor legislation in Olympia allowing counties to walk away from the GMA, and that Gaylord was “undermining” the county’s legal flexibility, acting as the “fourth commissioner” with his public comments.

“There seems to be confusion about the client and attorney relationship,” said Evans, adding county planners and prosecutors appear to be backing ideas that are at odds with the commission’s views. “I for one have lost confidence in our prosecutor’s office in representing our position with appeals before the Growth Board.”

Though Commissioner Darcie Nielsen agreed with Evans’ statement regarding the prosecutor’s office, she was unwilling leave the GMA behind. Instead, Nielsen urged Gaylord to consult with attorneys from Seattle-based law firm Buck and Gordon before a decision is made about what to do with the urban growth areas in Eastsound and Lopez Village. She said the firm was ready to offer free advice.

“The article was not as bad as it sounded in the title, but I’m concerned about compromising our position,” Nielsen said of the prosecutor’s press release. “I don’t think it is as black and white as our planning staff and prosecuting attorney say it is...I’m not sure we’re getting a lot of straight answers. But I think it’s time for us to come together instead of coming apart.”

Earlier this fall, the Hearings Board ruled boundaries of the Eastsound UGA do not comply with state planning guidelines due to lack of adequate planning for utilities, including sewer service, drainage and treatment of stormwater run-off. The airport overlay district was also determined to be out of compliance because it allowed residential and commercial uses below the airport’s flight path that are incompatible with state safety guidelines. Boundaries of the Lopez Village UGA, and whether the county chooses to designate the area as a rural village , have yet to be determined.

Responding to criticism, Gaylord countered that the prosecutor’s office has been “zealous” in representing the commission and will continue to do so. However, Gaylord said the office has legal obligations, ethical constraints, and could not support positions that are “frivolous or without merit”.

Evans and Nielsen expressed frustration over the inflexibility of the Hearings Board after it issued its ruling about Eastsound. At that time, both appeared willing to opt-out of the GMA or scrap plans for the two urban growth areas, noting planning under state guidelines has so far cost the county about $1.3 million of taxpayer money. Gaylord argued their comments about the board and the the facts were one-sided.

“The ability of judges or prosecutors to respond to criticism is a hotly debated item and there is no wrong or right answer,” Gaylord said. “I believe it’s appropriate when the (Hearings Board) is criticized in the community for the prosecuting attorney to speak out and give the facts. It’s not helpful to our community when a one-sided presentation of the facts is made.”

Commissioner Rhea Miller defended the work of county planners and prosecutors, and Gaylord’s freedom to express his opinion. Though she has disagreed with the prosecutor’s legal interpretations in the past, Miller said calling for outside attorneys who might provide a more favorable opinion would have been inappropriate.

“We have a system of checks and balances,” she said. “I’m totally baffled why we’re here. What I’ve heard from citizens is that we want strong planning, we want rural lands protected; and I haven’t heard rampant anti-GMA statements.”

Eastsound leaders urge county to stay the course


The key groups dealing with Eastsound’s future agree that Eastsound should maintain its designation as an Urban Growth Area, and that they should work together to bring Eastsound’s plan into compliance with the state-mandated Growth Management Act (GMA).

Those were the views expressed when representatives of the Eastsound Planing Review Committee (EPRC) , the Orcas Island Fire Department, the Eastsound Water Users Association, the Eastsound Sewer District, and the Port of Orcas met together for the first time to discuss Eastsound’s future. The meeting took place Nov. 21 at Smugglers Villa Resort.
Among those also present were Evans, Gaylord, and county Planner Pat Mann.

Evans found himself a minority of one. Not only would he like to see the county get out of its GMA-mandated obligations, the commissioner also favors changing Eastsound’s designation from a UGA to a Limited Area of More Intense Rural Development (LAMIRD). But Evans admitted that nobody else at the meeting favored taking these steps.

Some expressed sympathy for Evans’ position. EPRC member and sewer Commissioner Mike Stolmeier described the GMA process as a “moving target with no end in sight,” even though the county has been dealing with GMA for a dozen years. But he admitted that there is “not an exit door available” that the county can legally use to get out of the process.
That was Gaylord’s point, namely, that the county had no choice but to complete the GMA process and devise a plan that was in compliance with state guidelines.

Nevertheless, there was uneasiness about the direction in which things were going. Evans noted that the GMA process could legally require sidewalks and gutters along every Eastsound road, and the building of a multi-million dollar stormwater construction project.

Evans said the best Eastsound could hope for is what county planning officials euphemistically call “UGA Lite,” in which the state would refrain from imposing requirements that would cost millions. EPRC member Terry Gillespie said the best Eastsound can hope for is “some leniency” from the state.

Meanwhile, county planners will continue working to bring the Eastsound plan into compliance with GMA. On Tuesday, Dec. 10, Mann will meet with Eastsound Sewer District commissioners in an attempt to make their service area consistent with UGA boundaries. There may also be discussion about whether the sewer district would be willing to address stormwater planning. Stolmeier will oppose it. “What if there isn’t a problem?” he asks. “A stormwater district has to have a problem that needs to be solved. Let’s define the problem before we devise solutions,” he said.


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