More on Rural Invalidity

I have not seen the information that Futurewise submitted to the Growth Management Hearings Board for their request for an Order of Invalidity.  I am familiar with their data queries for county development permits, and based on that data, prepared the following paper to outline why the Hearings Board needed to issue an Order of Invalidity.

Rural Development Patterns -- review of County development allowed since 2005

Areas Affected by Order -- this map shows the extent of this action in Whatcom County

Rural Invalidity

In a decision just issued by the Western Washington Growth Management Hearings Board, development within vast rural areas of Whatcom County no longer enjoys the certainty of land use regulations. 

Under the Growth Management Act, there are very few tools to enforce provisions of the state growth planning law.  Sanctions on tax revenue, limits on access to state grant funds, and an "Order of Invalidity" are the main tools available to force a non-compliant local government to comply with the state law.  Thanks to the efforts of our local chapter of Futurewise and their state office staff, the Hearings Board took the first step in forcing compliance with the law.

The "order of invalidity" is somewhat of a vague term.  By having the Board find that the County's Comprehensive Plan is invalid, it doesn't entitle new development applications to rely on that comprehensive plan for their proposed projects.  Any new project, then, is not considered to be "vested", but could be subject to later changes approved by the state hearings board.  This affects predictability and certainty for development projects.  Banks will likely be leery of loaning funds to development that could be found non-compliant with the Growth Management Act.

What makes this decision even more sweeping is that the Order of Invalidity will likely stay until the Growth Management Hearings Board rules that Whatcom County has completed its rural element review consistent with the Act.  The burden has also now changed from a petitioner demonstrating non-compliance with the Growth Management Act, to Whatcom County demonstrating that they are are compliant.

With the direction of the current Whatcom County Council, it could be years before they find compliance.  Their current proposal is far from being compliant with the Growth Management Act, and if the County Council continues down this path, they will be challenged before the Hearings Board again, and the Order of Invalidity will continue.

And, if Whatcom County continues to be defiant towards the Growth Management Act, it could then see the Board recommend the next step in enforcement:  sanctions on tax revenues received from the state. 

The Whatcom County Council could resolve this issue by passing the recommendations of the Whatcom County Planning Commission last year, at least as an "interim control."  By putting in place the Planning Commission's recommendation, at least this cloud over development in places like Glacier, Hinotes Corner and Point Roberts could be lifted.

The name of this blog says it all: 

Get Whatcom Planning.

For more information about the laws regarding the Order of Invalidity, go to: RCW 36.70A.302
and RCW 36.70A.320.

Here we go again

Here we go again.  It was a comment often heard at County Council meetings from Bob Wiesen, who tragically died this past week.  Bob's voice and passion will be missed.  This blog is dedicated to "Here we go again."

This coming Tuesday, the County Council is scheduled to provide special privileges to development interests, failing to negotiate on the public's behalf.  Here we go again.

The agreements that Whatcom County negotiates rarely provide any benefit and interest to Whatcom County.  The interest is always to the benefit of development.  In 1992, the County negotiated away for 25 years development interests for Governor's Point, allowing a development to be considered in a rural area at three homes per acre! 

Tuesday, the Council will be considering in "executive session", an agreement with Trillium and the City of Blaine to dismiss the petition regarding the West Blaine UGA (Semiahmoo).  The primary purpose of the Agreement appears to be to provide Trillium with benefits that it could not obtain by pursuing its action before the Growth Management Hearings Board (GMHB) because these benefits are outside the scope of the GMHB’s jurisdiction.

One of the benefits to Trillium in the proposed agreement is that it would contractually relieve the development from complying with the Transfer of Development Rights (TDR) provision of the County Zoning Code (WCC 20.89.050(3)). 

Trillium submitted a planned unit development and subdivision application prior to the effective date of the urban growth area removing their property from the Blaine UGA.  It has now been one year since that application was filed.  Despite this fact, no progress has been made on completing the environmental impact statement (EIS) for the development.  Whatcom County and Trillium went through a process last winter to select a consultant firm to do the EIS, but Trillium has failed to sign the agreements to pay for the study.

One of the more significant issues in this Trillium agreement is that the County is conceding that the developer doesn't have to get development rights from agricultural lands or the Lake Whatcom Watershed in exchange for this "deal".  I think this move is illegal because the County is negotiating a land use action (zoning code) without public input and SEPA review.  This action can be appealed.  But, more importantly, it is bad public policy. 

In light of the County’s efforts to establish a viable TDR program for Lake Whatcom,  Council members Brenner and Mann have committed to developing such a program, and every individual land use decision that eliminates receiving areas reduces the likelihood that their efforts will be successful.  Furthermore, this is not relief to which the parties would be entitled if Trillium and Blaine were successful before the GMHB.  It appears instead to be inappropriate spot zoning, which provides preferential treatment to an individual landowner rather than providing for the uniform application of countywide land use policies.

The County should insist that Trillium proceed in a timely manner to pay for the EIS.  Instead, the agreement allows the permit application to sit and languish for as long as Trillium wants, making this yet another Governor's Point application.  There are not any provisions in this agreement that require timely completion of the EIS.  The only obligation "negotiated" is a requirement for the County to timely process the application, presumably when Trillium is ready. 

Twenty years from now, when there still isn't an EIS on the project, the public might wander who those negotiators were for the County? 

The second item on the agenda that provides an unfair advantage to development interests is the extension of development permits that are set to expire.  (The Council link to the agenda item is broken.)  It is one thing to consider permit extensions due to the current economic conditions.  But, the people that wrote this ordinance (development attorneys) used the current economic situation to roll back the application of new development regulations, particularly critical areas, to their development applications. 

This action comes at a significant cost to the public interest because the Council is sanctioning even more nonconforming developments that fail to protect water quality, public health and safety.  For example, under this ordinance, a development application first filed in 2004 in the Lake Whatcom Watershed, will now be able to continue to rely on less restrictive wetland buffers than under new standards adopted in 2005.  While vesting provides a recognition to developers' needs for certainty and fairness in planning their developments, similarly, the public need for certainty and fairness expects that when development applications expire that they only be resurrected if they meet the development regulations in effect at the time of a new, complete application.

Here we go again.