Friday, December 24, 2010

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.

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