Black Knight: 'Tis but a scratch.
Arthur: A scratch?! Your arm's off!
Black Knight: No it isn't.
Arthur: Well, what's that then?
[Arthur points at the Black Knight's severed arm; Black Knight looks at it.]
Black Knight: ... I've had worse.
Arthur: Look, you stupid *****, you've got no arms left!
Black Knight: Yes I have.
Arthur: [exasperated] Look!
Black Knight: It's just a flesh wound.
— Monty Python and the Holy Grail
My plan was to write a statesmanlike summary of the path ahead. Part Three of the Growth Management Hearings Board trilogy was supposed to focus on reality: how can we Get Whatcom Planning?
Change of plans.
Riley Sweeney posted an interview today with County Council chair Kathy Kershner (link here). He referred to Get Whatcom Planning, which always makes my ears prick up.
A few issues came out of that interview that require further thought.
(1) Is County planning staff time free?
When asked about the cost of the County’s unsuccessful multi-year effort to adopt a legal Comprehensive Plan, Council Chair Kershner said: “It hasn’t cost us anything except staff time.”
First of all, that isn’t an accurate statement. The County Council agreed to pay Lynden development attorney Lesa Starkenburg-Kroontje $40,000 to defend the County in this case. Ms. Starkenburg-Kroontje is not “staff.”
But this $40,000 cost is just the tip of the iceberg.
I attended County Council meetings relating to the rural element where four planners were in attendance, including the Planning Director. There were many, many meetings, and even more staff time devoted to writing and rewriting zoning code and comprehensive plan provisions outside of meetings. Heck, two staff members spent nine hours, along with Ms. Starkenburg-Kroontje and Prosecuting Attorney Karen Frakes, at the Growth Management Hearings Board hearing.
Are all of these planners volunteers, or do we compensate them?
You know the answer. Staff time is a real cost.
Conservatively speaking, looking at the past two years, the County has spent at least $150,000 in staff time to develop and defend its invalidated Comprehensive Plan.
How do I know that’s the right amount? That would be roughly the cost of one full-time staff person (salary and benefits) over two years. That’s conservative.
Perhaps someone in the County who is in a better position than I to detail the cost will provide a true cost accounting that will prove me wrong.
Unless and until somebody proves me wrong, I think that it’s entirely reasonable to estimate that the County has spent about a quarter of a million taxpayer dollars to develop and defend its illegal comprehensive plan.
How so? $150,000 in staff time plus $60,000 in time for Prosecuting Attorney Karen Frakes plus $40,000 for Lesa Starkenburg-Kroontje. A conservative estimate.
I think that a quarter of a million dollars is real money
(2) Is a decision by the Growth Management Hearings Board nothing more than “a matter of opinion”?
Ms. Kershner indicated that the Hearings Board decision is simply a political “matter of opinion.” It is true, as she stated, that the Hearings Board (like the United States Supreme Court) is an appointed body. The inference is that its opinions don't matter.
In July 2011, the Washington Supreme Court soundly rejected that view.
Our County Council recently brought in attorney Alexander “Sandy” Mackie as a speaker, and his views may color some Council members' understanding. Mr. Mackie has a long history in Whatcom County, and I don’t know all the details. His participation in the County’s defiance of the Growth Management Act predates my arrival in the County, fifteen years ago.
It is noteworthy, however, that Mr. Mackie's view of the Growth Management Act didn't fare too well before the state Supreme Court in a recent case involving Kittitas County. The case is Kittitas County v. Eastern Washington Growth Management Hearings Bd., 172 Wash.2d 144, 256 P.3d 1193 (2011). It’s good reading, and I hope that every member of the County Council will be familiar with it as they move forward in the planning process.
The Washington Supreme Court stated: “In reviewing growth management hearings board decisions, courts give ‘substantial weight’ to a board's interpretation of the GMA.”
The court further stated that the Hearings Board is not just a bunch of people with “political” opinions” “The legislature granted authority to three boards to adjudicate issues of GMA compliance”. “Authority” to “adjudicate” is very different from merely expressing “opinions.”
The Supreme Court went on to say that “The deference boards must give [to counties] ‘is neither unlimited nor does it approximate a rubber stamp.’ Moreover, when it comes to interpreting the GMA, the same deference to counties does not adhere, and we give substantial weight to a board's interpretation.”
That’s a pretty resounding rejection of the theory that the Hearings Board is a bunch of political hacks whose decisions don’t matter.
3. “It’s just a flesh wound!” Why not fight, fight, fight to the death?
The Hearings Board invalidated the County’s plan, which was an effort to correct errors in the County’s 2005 plan. This fight has already gone on for seven years. This is the third invalidity finding imposed on Whatcom County in just over a year.
Isn’t seven years enough? Aren’t three invalidity orders enough?
Kathy, let me speak to you directly. I did not spend hundreds of hours of my time appealing the Comprehensive Plan for “political” purposes. This appeal serves no political purpose. I’m not running for office. Promoting good planning is not even politically palatable in Whatcom County – and who would know that better than I?
I keep working on these issues simply because they matter.
Perhaps, if the County Council did not view planning issues as “us” versus “them,” as an ideological battle to the death, we could get somewhere.
That, I hope, is what will come next. We really need to move forward, not to fight, fight, fight to the death, as taxpayers bleed more with every loss..