Tuesday, August 23, 2011

Thinkin’ Bout a Moratorium

Thoughts and developments --


I had a good talk with Royce Buckingham today, from the County Prosecuting Attorney’s office, about the letter that I wrote about the County moratorium requirement. (The County has been very responsive overall, I should add, with a quick e-mail from Planning Director Sam Ryan and a quick call from Royce.)

The PA’s office apparently is basing its decision not to impose a moratorium on the view that only the State Department of Natural Resources has the authority to impose any kind of regulations that relate to any timber harvesting or forest practices that don’t amount to “conversion.” So the County’s position is that its law imposing a moratorium on applications following illegal “timber harvesting” (that DNR hasn’t found to be “conversion”) is preempted by state law.

We spent quite a bit of time talking about the state statute that says that local governments can adopt “additional or more stringent regulations” that are not “inconsistent with the forest practices regulations” in state law. I’m wondering whether any regulation that is “different” from state law is viewed as “inconsistent.” And, if so, why is there even a statement in the law that local governments have the authority to adopt “additional or more stringent regulations”? Royce said he’d look into it further, for which I’m appreciative.

Joe Show

Joe Teehan invited me to talk about the moratorium on “The Joe Show” today (the podcast is available from a link from this page). This is the third time that I’ve been on the show, and I really enjoy it.

Joe and I had one discussion that got me thinking. What if the County said “This is our moratorium law, we’re standing by it, and we’re going to apply it”?

The project proponent would have two choices. It could do what it’s required to do in order to lift the moratorium (see this blog), which would be the simplest and quickest response. Or it could sue the County, which would be more expensive and would take longer.

This would certainly give Whatcom County residents a better idea about the project proponent’s feeling of responsibility toward the community.

The applicant has every right, of course, to fight the County tooth and nail. We all have the right to go to court; it’s what makes America great. (A little lawyer humor there).

Or it could choose to abide by the laws that were in effect when it decided to pursue this project and work diligently to meet the requirements in our County Code.

What do you think?


  1. What do I think? I think Jean Melious is awesome! Even her lawyer jokes are funny.

    Oh, you mean what do I think about the moratorium issue? I think the more powerful and more well-funded the applicant, the less likely the law will be enforced. As you know better than most, the law is rarely black-and-white. Certainly, the county has discretion to enforce its law. If nothing else, the county could let DNR know it plans to enforce county laws and see if DNR objects. In that vein, which entity determines whether the timber harvesting entails a conversion: the county or DNR?

    As you know, I’m working on a situation with the City of Bellingham in which the City has the discretion (obligation?) to enforce a public safety ordinance but has refused to do so. Again, in that situation, the applicant is (was) powerful and well-funded and the City – in my opinion – feared the fallout of a legal confrontation. Perhaps the city attorney did not feel competent she could win in court, who knows?

    I have a question for you Jean: How do we motivate the city and county to enforce laws designed to serve and protect their citizens?

  2. I think if the county is sued by citizen groups, the large companies or developers will do the legal work for the county for free.

    If the big companies or developers sue the county, it would cost the county more to do their own legal work. So they don't enforce their own laws and see what happens.

    Shannon Parsons

  3. It's called "bettin' on the come."


  4. Even more importantly, if citizens sue the county, the county is not liable for monetary damages. On the other hand, a developer can sue for financial damages if actually incurred.

    Perhaps to level the playing field, citizens should be able to sue for punitive damages.

  5. Oh my. Jean has resorted to stealing one liners from other blogs. Really, Jean? What do you think?

  6. Did I? If so, I think that-- imitation is the sincerest form of flattery?

  7. Given the county prosecutor's opinion wrt the applicability of WCC 20.80.738, shouldn't this worthless law be removed from the county code?

    I mean, here you have county Legal issuing an opinion that there this law cannot be enacted unless it is fully encompassed by and limited within the state law that trumps it. If it cannot augment state law, what purpose does it serve? If state law and only state law determines outcome, then this section of county code should be eliminated. Why does it exist?

    While they're at it, why not just entirely eliminate the County Code, since I imagine—expanding on the county's Legal opinion—state law defines, limits and trumps WCC in every conceivable instance.

  8. (I'm not sure what happened in that first sentence of the second paragraph on Send, but it should've read: 'you have county Legal issuing an opinion that this law cannot be applied...')

  9. Whatcom county politics, especially McEachran, (and of course the pseudo democrats who grovel for election like Kremen and Linville)is shifted so far to the right, I expect, one morning, to wake and learn Whatcom is now in eastern Washington.

  10. Tim, it isn't just the worthless law, but the hundreds of properties throughout Whatcom County with a moratorium placed on their land for far less transgressions. What happens to all those properties?

    I ran into a county planner today who asked me when we can start planning and not fighting. The answer is pretty simple. Stop making stupid decisions. Really.

  11. If they refuse to make stupid decisions, then their job performance is called into question, if memory serves me correctly.

  12. Tim, I talked to Royce about three issues that have been raised about the moratorium -- whether the County law will be rescinded because the County has concluded that it violates state law, whether the County is concerned about discrepancies in enforcement, and why the County's police power extends to some moratoria but not to others.

    With respect to the first two questions, my sense is that the County is in a fire-fighting mode -- it's dealing with the most time-pressing issues as they come up and hasn't completely addressed the larger framework of County administration and enforcement.

    With respect to the broader moratorium issue, I viewed it as relevant to the County's law imposing a moratorium following illegal timber harvest. If the County has inherent police power to impose a moratorium on wind energy applications (for example), wouldn't that be relevant when a state statute says that the County can exercise its police power? I don't think, though, that the County is seeing a legal or policy connection.

    Whether or not there's a valid legal point, I think that the County's use of its moratorium powers (whatever they may be) raises an interesting and important policy issue. But that's just me.