New battlefront opens over CAO

Questions have been raised about whether board members of the Common Sense Alliance, which challenged the county's critical areas ordinance before Growth Management Hearings Board, ought to be able to weigh in on required changes as part of their role on the Planning Commission.

By Steve Wehrly • September 30, 2013 10:23 pm
With a briefing from deputy civil prosecutors Jon Cain (right) and Amy Vira (not pictured)
With a briefing from deputy civil prosecutors Jon Cain (right) and Amy Vira (not pictured)

The Critical Area Ordinances are back — and so is the contention that three members of the Planning Commission should be recused from participating any further in the process.

After the County Council and the planning commission took up the question of amending the controversial ordinances at a Sept. 19 joint meeting, Kyle Loring, attorney for Friends of the San Juans, questioned whether Tim Blanchard, Mike Carlson and John Lackey, members of the planning commission and board members of the Common Sense Alliance as well, should participate in the deliberations.

Loring said he would take his concerns to county Prosecuting Attorney Randy Gaylord.

The Common Sense Alliance was formed in 2009 “to inform the community about San Juan County’s proposed land use regulations affecting wetlands, streams, lakes, ponds, and shorelines,” according to the website commonsensealliance.net. The CSA was active during the process of enactment of the CAO, and remains involved in the ongoing appeals process.

The Critical Areas Ordinances were required to be updated by the Growth Management Act. The Planning Commission held hearings and made recommendations over several years, and the council held its own hearings and passed the ordinances in late 2012. Prior to the 2013 effective date, the council extended the effective date until March 2014.

In early 2013, the Common Sense Alliance, the Friends of the San Juans, the P.J. Taggares Company, the San Juan Builders Association and William H. Wright filed petitions appealing the ordinances to the state’s Growth Management Hearings Board.

Earlier this month, the board issued its opinion, rejecting the contentions of all petitioners except the Friends. Any of the petitioners can appeal the decision to the courts, but none have done so.

In response to the Growth Board decision, the council and the commission must address a number issues in the CAO that the board found did not comply with the state’s Growth Management Act.

At the recent meeting, county Deputy Prosecuting Attorneys Amy Vira and Jon Cain reviewed the eight specific matters that must be addressed, and Linda Kuller, planner for the Community Development and Planning Department, reviewed the timeline the county must follow to comply with the board’s order by March 5, 2014.

The council and seven of eight Planning Commission members, including Blanchard, Carlson and Lackey, participated in the joint workshop, beginning the process by which the commission will consider the decision and make recommendations for action to the council.

At the time of Blanchard’s appointment to the Planning Commission in early 2013, questions were raised by David Dellendorf about the appointment process and the possible conflict of interest regarding the CAO.

In April of this year, San Juan County Prosecutor Randall Gaylord provided a seven-page memorandum to the council that said that the appointment of Blanchard was valid and that conflict of interest considerations would not bar Blanchard from serving.

But, in the final section of the memorandum, Gaylord qualified his opinion: “A person who has authority to direct litigation or administrative proceedings against the County should not be allowed to make decisions or recommendations to the County Council related to those proceedings under the common law conflict of interest or County code applicable to advisory committees.”

The memorandum, which was recently released to the Journal with the approval of the council, continued: “Because the critical area ordinances are not now before the Planning Commission, these matters do not create a conflict of interest at this time. However, depending on the outcome before the Growth Board or in the courts, it is possible that items tightly linked to the legal proceedings will return to the Planning Commission. If and when they do, then both Mr. Blanchard and Mr. Carlson might be disqualified under the common law conflict of interest rules.”

Brian Ehrmantrout, chairman of the commission, said that prior consideration of the issue concluded there was “no actual conflict of interest,” but that he would “rely upon the advice of the prosecutor and the council” about any recusal of commission members at this time.

Reached late last week by the Journal, Gaylord said the question of recusal was still under consideration by his office.

The CAO decision is on the agenda of the council for Monday, Sept. 30, and on the agenda for a planning commission workshop on Wednesday, Oct. 2.