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County Allowed to Establish Use and Development Standards

Tim Blanchard of Common Sense Alliance comments before the Council on October 16 that "WAC 173-26-231(3)(iii)(C) allows counties to establish their own nonconforming use and development standards.  Most fundamentally, the definition in this section of the WAC by its terms applies only "for purposes of this section..." not any other provisions.  Accordingly, by its terms it is inapplicable to replacement of nonconforming shoreline modification structure pursuant to WAC 173-27-80 or different nonconforming provisions adopted by a County. 

"I believe that there are other deficiencies in the Staff Memo analysis, such the general proposition that the general rule governs the explicit exception.   If the 75% standard were mandatory upon a county, WAC 173-27-80 would not specifically state: “When nonconforming use and development standards do not exist in the applicable master program, the following definitions and standards [, which include the current 75% criterion,] shall apply.”  The Staff Memo is seeking to apply provisions that apply to one situation (i.e., replacement of shoreline modifications that are added for the first time after the rules are adopted) to another (i.e., replacement of modifications that were already existing and became nonconforming as a result of the rules).  This later situation—replacement of modifications that are in existence before a revised shoreline rule is adopted-- is governed by WAC 173-27-80 NOT the general rule in WAC 173-26-231.

"This issue is very important to many islanders, so it is important to get it right and not simply go along with what the DOE and planning staff might want us to do.  San Juan County has a choice regarding how it treats nonconforming structures, including shoreline modifications."