Dec. 3: Public hearing on changes to part of Mulno Cove Conservation easement and $30K fine

A public hearing on proposed changes to part of the Mulno Cove conservation easement will take place during the 9:15 a.m. time block on the San Juan County Council's regular meeting agenda on December 3 in the Legislative Building at 55 Second Street in Friday Harbor. The complete staff report explains the situation, the proposed changes and the imposition of a $30,000 fine.

Land Bank Staff Report:

The Mulno Cove conservation easement (CE) was purchased by the San Juan County Land Bank in 1998 and twice amended, once in 1999,and again in 2011. The CE encumbered three parcels totaling roughly 78 acres on San Juan Island. The principal conservation values listed in the CE are “open space character,scenic qualities,agricultural productivity, and wildlife habitat.” In 2016, two of the parcels (and a shared unencumbered shoreline parcel) were purchased by Michael and Kristina Gladstein while the northeastern parcel remained under the ownership of Boyd and Lovel Pratt.

The Gladsteins initiated redevelopment of the site, focused on Residential Site 1 as identified in the CE. As part of this, the existing residence was demolished and a new structure built. The Land Bank allowed the new structure to incorporate the square footage allotted to aguest house and garage so that all allowed construction was consolidated.

Unfortunately, proceeding forward, the Gladstein’s actions along several lines raised the question of violating the terms of the CE. Among the issues were: 1) Construction of “lofts” in the new structure which,if considered a second story, would make the footprint exceed allowable square footage on the building site; 2) Use of all-terrain vehicles for recreational purposes; 3) Repainting the residence in building site white instead of blending with the vegetation; 4) Construction of an 1,800 square foot sport court outside of any building envelope, and; 5) Siting of a drain field in one of the agricultural fields thus removing that area’s potential for agricultural use.

The Land Bank researched the loft issue and determined that the County code was ambiguous on whether they constituted a second story, thus this issue was unenforceable under the CE. The Land Bank also looked at the recreational use issue and determined that, while the Gladsteins admitted the violation, they maintained that this was a one-time event. This was also a difficult issue to enforce. Staff advised the Gladsteins that anything beyond de minimis recreational use which might degrade the resource or irritate neighbors was prohibited. The Land Bank also allowed the residence in site 2 to remain painted white, because this color is in character with historical homesteads on the island.

The Land Bank informed the Gladsteins that the sport court was a clear violation of the CE and would need to be removed. Similarly, staff subsequently notified them that the drain field location was a violation as well.

As the potential for court action loomed, the Gladsteins placed the property on the market and it is now under contract to potential buyers. In an effort to rectify the situation without removal of the court and drain field, but still achieve a net increase in conservation value, the Land Bank has come to agreement with the buyers to reduce allowable building site areas by roughly 60,000 square feet and the potential driveway construction areato residential site 4 by roughly 30,000 square feet. In response to the drain field violation they have agreed to expand the agricultural area by roughly 35,000 square feet (not counting drainfield area).

The Land Bank Commission considered these changes and concluded that they increased the conservation values associated with the CE well beyond the damage done by the court and drain field. The Commission also agreed that the imposition of a $30,000 fine to be paid by the Gladsteins would, in conjunction with reducing buildable area, help deter other owners of properties encumbered by CEs from committing violations. They also concluded that the changes met the requirements stated in the Land Bank’s policy manual regarding CE amendments.

The proposed partial CE amendment is the result of these considerations. It is structured as a ‘partial’amendment because the parcel owned by the Pratts is not subject to the changes. This is a point of contention between the Pratts and the Land Bank, as Boyd and Thane Pratt were the grantors of the original CE and the two amendments, and the Pratts assert that they, as original grantors, must approve and sign any additional amendments. The County Prosecuting Attorney disagrees with this assertion, maintaining that as properties are subdivided, changes in the CE only pertaining to a portion of the property may be approved by the current owner of that portion of the property,as grantor,in conjunction with the Land Bank, as grantee.

Despite this remaining point of contention, staff recommend the Council follow the advice of the Prosecuting Attorney and adopt the proposed partial amendment to the CE,and accept the payment of the $30,000 fine.

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