Tuesday, January 10, 2012

Get Whatcom Planning Newsflash: Growth Management Hearings Board Finds Whatcom County's Comprehensive Plan to be Out of Compliance and Imposes Invalidity (Again)

The County lost another challenge to its Comprehensive Plan today.  Among the reasons, as announced in a "Final Decision and Order" that the Growth Management Hearings Board issued today:

""the County's failure to provide the necessary measures to assure visual compatibility of rural development with the surrounding rural area" (p. 38)

"the County's failure to provide the necessary measures to reduce the inappropriate conversion of undeveloped land into sprawling, low-density development in the rural areas" (p. 40)

"the County's failure to provide the necessary measures to protect the Chuckanut Wildlife Corridor and Lake Whatcom's water resources" (p. 45)

"consideration of the development potential of contiguous lands in common ownership as a basis for establishing LAMIRDs" violates the GMA (p. 53)

"the County committed clear error in adopting development regulations for LAMIRDs" (p. 94)

"the creationof the Fort Bellingham/Marietta and North Bellingham LAMIRDs adjacent to a UGA was clearly erroneous" (p. 104)

"it was clear error for the County to include within the Smith and Guide Meridian LAMIRD LOB those areas between the nodes of 1990 development at Smith and Axton Roads. . ."  (p. 111)

"the Comprehensive Plan amendments and development regulations permit a population in the County rural areas far in excess of the allocation elsewhere provided for in the County Comprehensive Plan, thereby creating Plan inconsistency. . ."  (p. 121)

More on this later. 

UPDATE from Outside Man:  Here is the text of what the Board said in making its decision that the plan and development regulations are invalid, which means that no project can move forward in reliance on these rules.  P.S.  Jean's abilities won a very precedent setting issue in this case that we will report on more later. 

"In this case, invalidity is warranted with regard to the amended provisions of the County's development regulations that permit development in Type ILAMIRDs without regard to the character of the existing area in terms of size, scale, use and intensity that was found within the LAMIRD on July 1, 1990, as required by the GMA Further, the County fails to properly ensure that its Type III LAMIRDs are "isolated" as required by the Act. The Board finds WCC 20.59.322 allows buildings over three times larger than any 1990 buildings in the Rural General Commercial (RGC); that the required measures to control and contain rural development and protect rural character are absent from the Neighborhood Commercial Center (NC) District (20.60 WCC), except for a narrow 25 foot wide buffer for agriculture zones; that RCW 36.70A070(5)(d)(iii) limits uses to those that are "small scale", yet the 35,000 sq. ft. limit for buildings in a Rural Business designation in Small Town Commercial (STC) District, WCC 20.61.322, is not small scale and is out of scale with the rural area and far larger than any building that existed in 1990; that the Rural Tourism Descriptor and TC
District 20.63 WCC contains no limit on building size, the number of buildings or the size of a Type" LAMIRD, thus failing to ensure that the uses are small-scale; that the 20,000 sq. ft. area limit in WCC 20.67.301 General Manufacturing (GM) District is over 4,000 sq. ft. larger than any 1990 buildings of similar designation, thus violating RCW 36.70A.070(5)(d)(i)'s limits on allowed building sizes; that the 22,000 sq. ft. area limit in Rural Industrial Manufacturing (RIM) District, WCC 20.69.301 is over 6,000 sq. ft. larger than any 1990 buildings of similar designation, and the allowable uses in the RIM are beyond the scale and intensity in 1990, thus violating RCW 36.70A.070(5)(d)(i)'s limits on allowed building sizes and the intensification of uses.

The Board further finds that the designation or Logical Outer Boundary of the following LAMIRDs was not in accordance with RCW 36.70A.070(5) (d)(iv): Birch Bay Lynden Valley View (as to one parcel), Eliza Island, those areas between the nodes of 1990 development at Smith and Axton Roads of the Smith & Guide Meridian LAMIRD LOB, and that property within the Van Wyck LAMIRD which was vacant in 1990 except for the presence of a water meter, those properties south of the lake in the Emerald Lake LAMIRD which had yet to be developed in 1990. The Board concludes that the creation of the Fort Bellingham/Marietta and North Bellingham LAMIRDs adjacent to a UGA was clearly erroneous.

To allow these code provisions and LOBs. to remain viable during the remand phase of this appeal would permit uses to vest in the LAMIRDs and create patterns of development wholly inconsistent with the existing areas as of July 1, 1990. The Board finds that, if permitted, such development would substantially interfere with Goal 1 of the GMA, by encouraging urban levels of development outside urban areas and Goal 2, by encouraging sprawl."


  1. An amazing, but not surprising, rebuke of County planning over the past year. The Council hired an attorney for $40,000 to defend this action. Let's hope that the new County Executive will use common sense and not assign staff resources unless the Council is willing to listen and follow the law.

  2. I sense that this is a significant milestone, but so far cannot really understand the legalese. Perhaps the findings can be reduced to Findings for Dummies? Even simpler is needed.

    Baffled in Bellingham, aka Abe Jacobson

  3. Hang on, Abe. We have 179 pages to absorb and condense.

    For now, the word "invalidity" says it all. It's the Board's strongest weapon and a rare remedy. Well, not so rare in Whatcom County, but not something that the Board is willing to dole out lightly.

    The Herald's coverage focused on Lake Whatcom today, and it's true that the Board was not pleased with the County's treatment of our drinking water source. In addition, there are also important rural planning issues to discuss.

    And I think that we need to discuss why, in a time of fiscal austerity, the County flushes money down the toilet to defend indefensible planning.

  4. First thanks to all that worked so hard on this. The standard to overturn the county on issues like this is daunting.
    I can have some sympathy wih the Concil not wanting to reduce density from previous zoning the shoe horning huge commercial and industrial expansion into the rural areas went in the complete opposite direction.
    The population allocation issue is fascinating and very well might have huge implications elsewhere. Great work Jean.