Rural Element, Part II: Usual and Ordinary Meaning

There is a saying in legal circles that undefined terms are accorded their usual and ordinary meaning.

One would think that the current draft of Whatcom County's Rural Element (link here) was drafted by Committee.  Well, it was.  The County Council Committee of the Whole.  And nothing reads like policy drafted by a Committee.

If you read:  "Existing development is defined as that which existed on July 1, 1990," what would you think it meant?  What the actual state law says is:

RCW 36.70A.070(5)(d)(iv).  Existing areas are those that are clearly identifiable and contained and where there is a logical boundary delineated predominately by the built environment, but that may also include undeveloped lands if limited as provided in this subsection.

(v) For purposes of (d) of this subsection, an existing area or existing use is one that was in existence:

     (A) On July 1, 1990, in a county that was initially required to plan under all of the provisions of this chapter;

If you read that Rural Communities can be designated based on a criterion that says: 

"Existing zoning prior to designation as a Rural Community, except existing zoning may not be a sole criterion for designation,"

would you scratch your head and say, huh?  Since all of Whatcom County was previously zoned, except federal lands, is all of Whatcom County now eligible to be designated as a Rural Community? 

What would you think the ordinary meaning of a policy that says:

"Protect the character of the rural area in terms of natural landscape as well as rural lifestyles and economy...."

If you were on the Council or a Hearing Examiner or a judge, and were faced with a question about extension of public sewer or a large water main into rural areas, how would you judge this policy:

"Public services and public facilities necessary for rural commercial and industrial uses shall be provided in a manner that does not permit low-density sprawl."  (emphasis added)

Would you read this policy as a mandate to provide the services as long as it doesn't permit low-density sprawl?  Or, would you read this as a policy that these services and facilities CAN be provided ONLY IF it doesn't permit low-density sprawl?

If you read that more intensive development should be contained within rural designations, "unless justified by the existing rural character of the area," would you think that the Council believes that intensive rural development doesn't have to be contained?   Would you also expect that a policy document provide the reasons to "justify" this exception?

I would have expected that the policy document that the Council has spent over a year in the making would have clearly defined what sprawl is in rural areas, and what rural character is.  The word "sprawl" is used 8 times in 29 pages -- but never defined.  Whatever sprawl is, we know that it is "discouraged".  Discouraging something that you haven't defined isn't helpful.

We do know that the Council is heavily weighting the document to support commercial and industrial development in rural areas.  The Council minutes are filled with motions to amend current policy to include these uses in rural areas. 

The word industrial is used 19 times in 29 pages.  The word commercial outdoes the industrial land uses by inclusion 26 times.  Perhaps that is why the Council has amended an existing policy regarding commercial or industrial development along the Guide Meridian:

"Locate new commercial or industrial development along Guide Meridian at key intersections within designated urban growth areas, Rural Communities and Rural Business areas in a manner that does not disrupt the Guide's regional transportation function."

Now that policy about the Guide looks like sprawl to me. 

As I review the County Council draft policy on rural development, I'm left scratching my head on the ordinary meaning of the language used in the document, let alone the serious policy issues they have drafted.  But, we will cover the serious policy issues in an upcoming Get Whatcom Planning blog.

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Caitac Settlement

There’s an interesting item on the County Council agenda for Tuesday night, and it seems to be flying under the radar. The County is proposing to approve a Settlement Agreement with Caitac, which owns property north of Bellingham. Here's the link.

How much property? Well, I don’t know. A whole bunch. The Settlement Agreement doesn’t say. Apparently there are some exhibits to the Development Agreement that might explain how much, but the public doesn’t get to see those exhibits. They’re not included in the Council packet (at least, not in the packet made available to the public).

From the way this matter is being handled, you would think that the public had no interest at all in the project. The Settlement Agreement came out on Thursday. It will be discussed in a secret Executive Session on Tuesday, then voted on – with no public input at all – on Tuesday evening at the Council meeting.

Here’s my favorite part of the Settlement Agreement. By April 26 -- yes, two months from now -- the County Council will be contractually obligated to make its "final decision" on the comprehensive plan amendments, zoning amendments, and development agreements that Caitac wants in order to develop its property. But there are no applications for any of these provided with the settlement agreement. And when you go to the Planning and Development Services web site (click here), you will see that Caitac hasn’t even applied for any comprehensive plan amendments. Or if it has, they’re secret! The date for a SEPA determination (that’s environmental review) is left blank in the Settlement Agreement (paragraph 3.1), so who knows when that might happen? Not the public, that’s for sure.

The Settlement Agreement doesn’t require Caitac to submit any missing applications or information by any particular date. Now, here’s the kicker. What if Caitac doesn’t get around to submitting its comprehensive plan amendment application until, say, April 25? Too bad, the County still has an obligation to reach a final decision by April 26. And if it doesn’t, Caitac can sue the County. And if Caitac wins, We the Taxpayers get to pay Caitac’s attorneys’ fees. That’s in paragraph 6.2.

There’s more. The Settlement Agreement doesn’t actually “settle” a thing. Settlement Agreements usually “settle” litigation, but this one doesn’t. It does absolutely nothing for the County unless the County Council decides to approve all of Caitac’s applications, on terms favorable to Caitac. Yes, seriously. The County is putting itself under a contractual obligation that could cost us all money, but Caitac won’t even withdraw its litigation petition unless it gets everything that it wants, on the terms that it wants. That’s in paragraph 4.1.

This may be the most one-sided contract I’ve ever seen.

So why have a “Settlement” Agreement? Here’s my guess. Without a “Settlement” Agreement, Caitac would have to wait until the Rural Element was done to apply for its development. The Planning Commission would hold at least one hearing, maybe two, and maybe a work session as well, for a project of this magnitude. It might seem odd if the Council didn’t hold a public hearing, too. In other words, the County’s normal public process would apply to Caitac.

But this way, the County can help Caitac out by truncating the public process and making everything seem terribly, terribly urgent. The Planning Commission will have to hold a hearing and vote in one night. The County Council might not even have time to hold a hearing – it might just approve whatever the Planning Commission sends to it. Caitac gets moved up in line against other projects and gets expedited hearings; it’s the citizens of Whatcom County who get shortchanged.

There are plenty more strange issues about this “Settlement” Agreement. Caitac is asking for a “LAMIRD” (Limited Area of More Intense Rural Development) designation, but the County’s Comprehensive Plan doesn’t even contain LAMIRDs right now – that’s why the state Supreme Court told the County to revise its Plan in 2009, and the County hasn’t finished. So how will that work? How can the County Council guarantee that both the Planning Commission and the Hearing Examiner will complete their required reviews in time for the Council to act by April 26? And so forth.

But here’s what might be the strangest thing of all. Look at the Settlement Agreement. Look through the applications on the Planning and Development Services web site. If you find any kind of map, or any kind of concrete description of what Caitac is proposing to do, please contact me and I’ll post it right away. Right now, though, the public has no idea what the Council must approve within two months in order to actually “settle” Caitac’s claim against the County.

What’s the secret?

Rural Element, Part I: Across the Blogosphere

Charlie Crabtree’s blog, The Fourth Corner, recently included a link to this site, and I hope that a few readers will follow that link. (Since one good turn deserves another, click here for a link to The Fourth Corner.)

The Fourth Corner recently blogged about the County Council’s revision of the Rural Element of the Comprehensive Plan, which after almost a year and a half of delay, appears to be heating up – there’s a special meeting today (February 15) at 1:00. The Fourth Corner blog suggests “educat[ing] yourselves on both sides of the issue,” which is great advice.

Fourth Corner says that the Plan is being “pushed” by “voices of downzoning,” ranging from the state Growth Management Hearings Board to one of the authors of this blog. The Washington State Supreme Court needs to be added to the top of the list. Here’s what the court said (click here for a link to the entire case):

We agree with the Court of Appeals that, as the Western Washington Growth Management Hearings Board (Board) concluded, the County must revise its comprehensive plan to conform to 1997 amendments to the GMA [Growth Management Act] that set out criteria for establishing limited areas of more intensive rural development and rural densities.

So, unless Whatcom County plans to openly defy the state Supreme Court, it has to revise its comprehensive plan to conform to the GMA.

It’s also important to understand the massive costs to Whatcom County of its continued refusal to comply with state law. These costs include:

•Whatcom County is ineligible to receive Public Works Trust Fund loans or grants
•Whatcom County is ineligible to receive Centennial Clean Water fund loans or grants
•Whatcom County, including any special districts, lose points and preference in competitions for any grants or loans to finance public facilities
•Whatcom County has been issued an Order of Invalidity that restricts vesting of permits in thousands of acres of rural lands in Whatcom County

The next level of sanctions that are possible as a result of noncompliance would be sanctions of tax revenues to Whatcom County from the following sources:

•Motor vehicle fuel tax
•Transportation improvement account
•Urban arterial trust account
•Rural arterial trust account
•Sales and use tax
•Liquor profit tax
•Liquor excise tax

Even if you like the idea of a much more crowded rural Whatcom County, with more and more houses, cars, and people pressing in on our agricultural industry, these monetary consequences would have to give you pause.

Finally, I hope that anyone with property will make sure that it will actually be affected by the revisions before calling attorneys and “land use consultants” who stand to make money from people’s fear of the so-called “land grab.”

As for the contents of the County Council’s proposed revision, that’s a topic for another day.

How will we pay for the jail?

I came away from the jail meeting last week knowing that the County is planning for a law and justice center facility less expensive than the $150 million in the Draft EIS. What we didn't learn at the meeting was how much it will cost taxpayers and where the funds will come from.

As several speakers noted, shouldn't we figure out how we are going to pay for it before we buy property and design a facility?  Is the cart before the horse?  The County has spent $1 million in the planning stages thus far without any public input.  Whether those funds are wasted or useful depends on whether the jail proposal is the right size, in the right place, and at the right cost.

I was particularly perplexed by Deputy Administrator Dewey Desler's comment that the administration is committed to building the jail without raising taxes.  I heard Dewey say many times that the only way that they can build the jail was to ask the voters for a voter-approved bond.  In fact, Dewey has been saying it since 2005:

"The administration never anticipated that the one tenth of one percent sales tax was large enough to sustain the operating cost of the new jail.  It will be a responsibility of the leaders in place to figure that out."  Council minutes, January 11, 2005

About two months ago, the County adopted an updated 6-year Capital Facilities Plan that included the jail facility.  That plan pegged the construction cost at $41 million with five sources of funds to pay for it:  1) General Fund; 2) Jail Fund; 3) Public Utilities Improvement Fund; 4) Real Estate Excise Tax (REET I); and 5) Bonds.

The General Fund of the County is on life support due to declining revenues and increased expenses.  The jail and sheriff's office budget, along with other law and justice services, comprises 55% of the General Fund budget.  The budget just proposed by Executive Kremen and adopted by the County Council, transfers over $5 million per year from the general fund to support the jail operations.  Yet, the adopted expenditures in the jail fund exceed the revenue by $726,000 per year.  Any additional burden on the General Fund will come at the expense of other services, such as planning, housing, alternatives to incarceration, etc.. 

If you recall, for the last two years Executive Kremen proposed a shift in the road and general fund levy, allowing for an increase in revenue to the County by $1 million per year.  This levy shift meant that city property owners would pay higher taxes and those outside the cities would pay lower.  Even Blaine's Mayor came out against this shift in taxes that was done without consultation or knowledge of the cities.  Thanks to four county council members (Mann, Weimer, Brenner, Larson), this gimmick was stopped for this year.  But, pay careful attention to next year's budget, because it might be back in order to help with jail and other county costs.

Voters approved a .1% sales tax increase for law and justice purposes.  This is called the Jail Fund.  This fund is budgeted to receive a little over $3 million in revenue each year.  The funds are spent mostly on jail operations and whatever capital projects it can afford.  The jail budget is over $12 million per year.  After overspending the fund in the next two years, the Jail Fund is expected to end with only $2 million in reserves at the end of 2012.   

The third source of funds that were identified to pay for the jail is the Public Utilities Improvement Fund.  It took me a while to figure out what this fund is.  I was shocked to learn that it is the "rural sales tax" fund that is specifically set aside for economic development purposes.  In Whatcom County, it is called the "EDI Program" (Economic Development Investment Program). 

EDI funds are specifically not allowed to be used for law and justice facilities, including jails.  In 2007, the State Legislature amended the statute to declare "NO NEW PROJECTS FUNDED WITH MONEY COLLECTED UNDER THIS SECTION MAY BE FOR JUSTICE SYSTEM FACILITIES."  (RCW 82.14.370(3)(b)) 

The fourth source of funds identified were Real Estate Excise Tax (REET 1) funds.  Every time someone sells property in Whatcom County, there is an additional excise tax that is included to pay for certain public facilities and services.  REET 1 funds can be spent on transportation systems, storm and sanitary sewer, parks, law enforcement, fire protection, trails, libraries and flood control projects.  The problem is that the REET 1 fund is depleted.  There is less than $1 million in that fund at the end of 2010.

The final source of funds identified were Bonds.  Bonds are sold to investors who expect to be repaid.  In order to repay the bonds, the County would need to guarantee a source of money for those bonds.  Well, all the wells appear to be dry.  The General Fund is empty.  The Jail Fund can't sustain the Operational Costs, let alone any debt.  The EDI fund can't be used for jails and justice facilities.  And, the REET 1 fund is empty.  The only way for Bonds to be an option is if they are Voter Approved bonds that increase your property taxes.

The second budget buster in this jail proposal will be the increased Operational Costs for the jail.  There will be increased travel costs to the courtrooms.  There is always increased maintenance and utility costs for newer, bigger buildings.  And, if staff needs to increase, there are additional costs that must be borne by the General Fund or Jail Fund.  The County cannot afford any increases in General Fund expenses without new revenues.

So, unless the County provides clearer information about how they will pay for this jail, I suspect that they will be coming to the voters to seek your approval.  Having waited 7 years and spent $1 million without public input, I expect that the public might not be as kind to that request as they were when the .1% sales tax was requested.  However, the jail does need to be replaced and I would vote for a property tax levy increase to replace the jail if it was the right size, in the right place and at the right cost. 

It is time for leaders to lead.  The current ones have failed us.  Who will step forward to dig us out of a very deep hole?

Jail Impacts

Like hundreds of other people, I went to the jail “meeting” last night. The whole saga of the way the jail site is being chosen is pretty fascinating. Plus, it’s a lot of money, and a big decision for our community.

A lot of people wanted to talk to the County about the jail, and what they had to say was compelling: we need the right sized jail in the right place at the right cost.

What we heard back from the County, though, was strange and a bit disturbing. The County’s Environmental Impact Report, or EIS, was the major source of information for the public and for the presentation at the meeting. Last night’s meeting turned a few essential principles of environmental impact assessment on their heads.

First, what the heck did the environmental impact assessment look at? It’s supposed to look at a range of alternatives, and apparently this EIS didn’t even look at any alternatives that the County is now planning to pursue. By the end of the meeting, everybody on the podium was running away from the 800+-bed jail examined by the EIS as fast as they could. A 600-bed jail, they insisted, was what we want.

The point of an environmental impact assessment is to ferret out the alternative that will do the job with the least possible impact on the environment. Or, as the SEPA regulations say, the purpose is to “inform decision makers and the public of reasonable alternatives” that would “avoid or minimize adverse impacts.” To make sure that decisionmakers get the idea, the regulations emphasize that a “reasonable” alternative is “an action that could feasibly attain or approximate a proposal's objectives, but at a lower environmental cost or decreased level of environmental degradation.”

Didn’t anybody even think to look at the impacts of a 600-bed jail in the EIS?

Some people up on the podium said that it was fine that the EIS didn’t look at alternatives that would reduce environmental impacts because the law requires a “worst case scenario.” But the "worst case scenario” only applies when information about the impacts of alternatives is unavailable or incomplete. If the County couldn’t find out what the impacts of its “reasonable alternatives” would be, because of scientific uncertainty or expense, then it could rely on the “worst case scenario” language (linked here).

The jail is a big project, but its impacts can be predicted. There isn’t a lot of uncertainty about what happens when you build in wetlands, far from infrastructure. The “worst case scenario” provision just doesn’t apply to the selection of alternatives.

So the EIS was fundamentally flawed as an informational document. It looks like the process was equally flawed. There was testimony that 70 people had petitioned for a public hearing on the EIS, and that the County had refused to hold a hearing. When 50 or more people petition for a public hearing, the regulations say that a hearing must be held. The hearing has to be held within 50 days of the date that the EIS was issued. The EIS was issued on October 18, 2010.

And no public hearing was held.

But wait a minute, you might say. Wasn’t last night’s meeting a hearing?

Well, no. Not formally, and it was not intended to function as a hearing.

Formally, the meeting was presented to the public as just that – a meeting – with “audience participation.” Here’s the notice. It wasn’t noticed as a hearing.

Once it became clear that the County might have violated the law by not holding a public hearing on the EIS, there were some efforts to backtrack. It was suggested that last night’s meeting was, in fact, a hearing, despite the fact that it didn’t happen within 50 days of the EIS issuance and it wasn’t noticed as a hearing. The County referred to a part of the law that allows a public hearing on an EIS to be held when there is a public hearing on a development permit.

The problem, of course, was that last night’s meeting wasn’t a public hearing on a development permit. It simply wasn’t a public hearing in any legal sense.

Why does that matter? It matters because the County is supposed to want to listen to the public. At the start of the meeting, it was clear that the meeting’s purpose was to inform the public, not the other way around. There was a half hour presentation, and then when audience members got up to speak, somebody on the podium would inform them of the County's position. That’s not a “hearing,” that’s a rationalization of a decision already made.

“The public” noticed this, of course, and got a little feisty, and the folks on the podium backed off. Then the “meeting” started to function as a “hearing.” This was thanks to all those who put in the time and energy to make the County hear the public.

Perhaps the County will do things differently next time. Better late than never – but what a costly lesson this has been. In addition to the large monetary cost of preparing an EIS that didn’t serve its purpose, and in addition to the public time invested, there’s the cost of delay. As everybody agreed at the meeting, we need a new jail. Going about it the right way will ultimately be faster than trying to cut corners.