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An attempted de facto rezone of 80 acres of Rural Forest zoned land above Fox Spit on south Whidbey has been rejected by Island County Planning Dept. Developer Stuart Young had recently logged the land under a forestry permit that did not include converting (permanently deforesting) more than the area required for houses, roads, etc. While the land was extensively logged, the permit requires replanting. Despite the clear terms of this permit, Young applied in October to permanently clear for pasture about 21 acres that was already logged and 3.7 acres that had not been logged for views. Both areas contain Pileated Woodpecker nest trees.
In comments to the County, WEAN pointed out that the forest land conversion would be inconsistent with the purpose of the Rural Forest zone:
ICC 17.03.110
The primary purpose of the Rural Forest (RF) zone is to protect and encourage the long term productive Use of Island County’s forest land resources of local Significance. It is established to identify geographical areas where Commercial Forest management practices can be conducted in an efficient manner; and to help maximize the productivity of the land so classified. Secondarily, lands classified RF provide recreation opportunities, scenic Open Space, wildlife habitat and watershed management to the extent such Use is consistent with the primary purposes of the Zone.
In WEAN's comments submitted to the County on Nov. 24, we wrote that
"As a general matter, even uses that are outright permitted within a zone must still be limited so as to be consistent with the purposes of the zone. However, this application proposes speculative conversion inconsistent with the RF zone’s purposes because of the proposed extent and purpose the deforestation. The proposed deforestation is for two purposes: views for residential development and pasture. Provision of views is not listed as either a permitted or conditional use for the RF zone or the ICC generally. Insofar as it can be considered ancillary to residential development, it must still be of a scale and manner that is consistent with the purpose of the zone. However, the proposed conversion of a large area (3.7 acres) to provide views for speculative future development is inconsistent with the primary purpose of the zone because of its scale. That the clearing also violates the critical areas ordinance also runs afoul of the secondary purpose of the zone, provision of wildlife habitat. And while livestock husbandry is a permitted use in the RF zone, the very large area (over 21.37 acres) proposed for deforestation is of such a scale that it is inconsistent with both the primary and secondary purposes of the zone. For these reasons, the application should be denied. What the applicant is really proposing is a defacto rezone to either Rural Agriculture or Rural. The effect of granting this defacto rezone is to nullify the primary and many of the secondary purposes of the RF zone. Applied large, it will allow permanent deforestation and clearing of the RF zone in complete contradiction of the zone’s purpose. It must be either rejected as incomplete or outright denied."
We also asserted that the conversion would violate the critical areas regulations by failing to protect Pileated Woodpecker, wetlands and streams. Pileated Woodpecker are listed as a "protected species" in the county's critical areas regulations.
The County agreed with WEAN's analysis and on Dec. 8 denied the application because of its inconsistency with the purpose of the Rural Forest zone and the critical area regulations. Young now has 21 days to appeal the denial to Superior Court.
As far as we're aware, this is the first time that the County has taken steps to protect the integrity of Rural Forest zoning and deny the sort of de facto rezone that Young was attempting. This is important because even though the area zoned Rural Forest is relatively small (about 14,000 acres or 14% of Island County), it is the only zoning designation that is dedicated to retaining forest cover over the long term.
Stuart Young has previously evaded the Rural Forest zone's purpose. On 40 acres on Lone Lake Rd., Young had previously managed to create 8 5-acre lots, despite the Rural Forest zone minimum lot size of 10 acres. Young used the "road-split parcel" loophole to do this. Since then, WEAN has gotten the Growth Management Hearings Board to invalidate that illegal regulation twice. The County Commissioners have now completely removed that loophole from the county code. Hopefully, the denial of this latest attempt by Stuart Young to bust the Rural Forest zone will spell the end of his evasions of the zoning code and critical areas ordinance, as well as act as a precedent preventing wholesale conversion of Rural Forest land to pastures and McMansions.
-Steve Erickson
