County denies appeal on subdivision

A Freeland-based homeowners group seeking to block the development of a 24-lot subdivision off Woodard Road south of Highway 525 will have to file a petition with Island County Superior Court to keep the land use dispute alive.

The ongoing tug-of-war over a recent amendment to Island County's vesting code went yet another round Monday, when Island County Commissioners denied an appeal by the Cameron-Woodard Homeowners Association to reverse a recent finding by the county's hearing examiner.

At issue is whether an application for a 9.65-acre subdivision submitted by Swan Enterprises on June 27, 2000 actually vested on the date it was filed with the planning department or, as the homeowners association asserts, did not vest until a Notice of Complete Application was issued by the county on July 10.

The proposed development site is on the south side of the highway, about a half-mile down Woodard Road.

Vesting laws ensure that any land to be developed by a property owner is grandfathered in under the zoning regulations that apply at the time a proper development application is submitted. In this instance, however, a glitch in Island County land-use code complicates the issue.

State law requires that subdivision applications vest at the time a fully complete application is submitted. Because the land use code in Island County changed on July 1, 2000, the subdivision proposed by Swan Enterprises was possible only because it vested prior to that date. Otherwise, the application would have been refused.

However, planning officials discovered that the language of the county's previous land use review ordinance could lead to a different interpretation of vesting laws. The old ordinance can read in a way that property is not vested until a Notice of Complete Application is sent out by the county -- which can happen within 14 days of receipt. Now, according to one's interpretation, Swan's subdivision was either vested or not vested, or both.

On Jan. 7, the board of commissioners fixed the semantics problem in the vesting language with an amendment to the county's comprehensive plan, bringing the ordinance into compliance with state law and making the new vesting regulations retroactive through Sept. 29, 1998. The hearing examiner's Feb. 15 decision on the Swan application upholds the new ordinance and approves Swan's application as vesting on June 27, 2000.

The appeal to reverse the hearing examiner's decision was filed Feb. 28 by Gerald Steel, representing the Cameron-Woodard Homeowners Association, and was heard by the board of commissioners in a closed-record hearing April 1.

In a written statement of appeal, Steel argues that the hearing examiner's decision was based on an illegal ordinance, a reference to the retroactive amendment passed by the board in January that rectified the "unintended conflict" between county code and state law. The board of commissioners denied the appeal in individual statements delivered at Monday's meeting.

Each commissioner argued there was no substantial change enacted to existing code above that required to bring it into alignment with state law.

"As a county commissioner I do not believe the county has the ability to take away a right given to its citizens by state law," Commissioner Mac McDowell said. "Clearly, the Board of Island County Commissioners not only has the ability but in my opinion based upon my oath to uphold state law, the duty to correct any county code that violates state law."

Commissioner Mike Shelton said that regardless of whether the board had amended the code, Swan's application would have vested under state law.

In addressing the issue of the alleged illegality of the new vesting ordinance, Commissioner Bill Thorn said the board's amendment did not change the intent of the code but rather clarified when applications for subdivisions and long subdivisions officially vest.

If members of Cameron-Woodard Homeowners Association want to further appeal the board's decision, they now have 21 days to file a petition for review in the Island County Superior Court and serve the petition to all involved parties.

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