Thursday, January 19, 2012

What Next? Growth Management Hearings Board Decision, Part 3

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..


  1. Thank you Jean. I lot still to understand. No one ever promised us that planning would be easy.

    Why would the appointments to the Growth Hearings Board be any more political than the Yellow Tea Shirt "rebellion?" They are not.

    If we are a nation of laws lets get on with the process of fair and thoughtful compliance.

    Please pen more to show the way.

  2. Well, since we have gone over the pond, I have an out for you Ms. Mealious. My suggestion is "Don't Panic" just yet.

    Douglas Adams, who wrote "Hitchhikers Guide to the Galaxy", ended up with 5 books in his trilogy. So you can write 2 more.'s_Guide_to_the_Galaxy

    So although we may not agree on many things, blog away...

  3. My back of the envelope assessment of costs was similar to yours, Jean, in terms of staff hours in both Planning and Legal. But let's not also forget that council's decision to do-over also misdirected their *own* legislative priorities. The could have been doing something *else* in 2010-2011 (like, oh, say, working on water rights or farmland protection and ag policy). So you've got to factor in their salaries as well.

    My biggest disappointment through all of this is that Dave McEachran hasn't walked in with his baseball bat and started flailing around on their hardheaded intransigence at meeting an expectation of the Supreme Court. At some point, it becomes the defiance of scofflaws.

    Why hasn't Dave McE challenged the BIAW's opinion that the county can't charge impact fees while it is out of compliance w/ GMA? That's just the BIA's opinion (seems like double jeopardy to me) and, with the dollars at stake, well deserving of challenge and appeal.

  4. Funny ... when it comes to Public Works staff time that is applied to the Whatcom County ferry(aka Lummi Island ferry) costs, staff charges are *much* higher than seems to be the case for Planning. Maybe that's because ferry users pick up the majority of those costs, via user fees/fares, and because the Council can raise those fares by however much they want, whenever they want? (Sorry -- it's hard not to be cynical sometimes.)

    I think that accounting issues like this should be a solid focus for Jack Louws to address, and soon. Why not full accounting of planning staff time (supplies, equipment use, room rentals, etc), along with "push" reports to the public as well as Council & Exec of those costs by project by project (e.g., LAMIRD planning). Then, citizens crazy enough to want REAL answers about costs could find them without extensive & expensive PDRs.

    The recent all-volunteer Citizens Task Force for the Lummi Island Ferry discovered accounting that was sometimes confused (we had an excellent CPA with CFO experience on the task force). They recommended that the County fix that problem, partly by investing in up-to-date financial software, as the current county accounting software is years out of date, making it necessary, for example, to hand-generate reports in spreadsheets; and considerable numerological data were consolidated in Word text files, meaning that historical data could not be broken out). The Task Force found other big 'opportunities for cost effective improvements', like PW staff *manually* entering ferry fare and usage data into spreadsheets, due to old-time modes of ferry ticketing (no credit cards, no electronic ticketing, not even smartphone apps like the Girl Scouts now use to sell cookies.(If any super-nerdy type wants to see the Ferry Task Force report, let me know & I'll send or post a quick-loading link.)

  5. I hope Jack Louws is following this blog!

  6. How would recommendations for the Ferry Task Force be paid, i.e. the commuter software for electronic ticketing, especially if you think fares are already too high?

  7. Interesting comments.

    Tim, I agree about the opportunity costs of the County's lost year. Two years. And in addition to the Rural Element, the County spent a huge amount of time inflating Ferndale's urban growth area (and then losing before the Growth Management Hearings Board).

    Maybe impacts fees will be back on the table as the County looks at the Board's order. I hope so.

    Wynne, the topic of County cost accounting is endlessly fascinating. And worth a blog (or better yet, a newspaper article!) of its own.

    For example -- look at page 11 of the County's "Unified Fee Schedule": You'll see that, last year, the County changed many of the rates that it charges for planning activities. It went from a base rate, followed by charges of $100 per hour, to a flat rate.

    I mention page 11 in particular because the County changed the State Environmental Policy Act Environmental Impact Statement (SEPA EIS) rate. Before this change, last year, the County would have charged $2,500 for the first 20 hours, then $100/hour after that.

    And now? Bear in mind that the County is one of the lead agencies for the SEPA review for North America's largest coal terminal. A project for which County SEPA staff have already put in hundreds of hours over the past year and a half, participating in the Multi-Agency Permit Team and working on the Request for Proposal to hire a consultant. How much will SSA reimburse the County for this staff time?

    $2,625 dollars. Period. No matter how many hundreds of hours staff put in, taxpayers pick up the bill. It's a lovely little bit of corporate welfare, right here in our own county.

  8. I am trying to reconcile Kathy's comments that she wants to "bring the extreme views, on both sides, together to a solution that we can support" with "the council we have now is less inclined to be pressured by the public watching."

    For over a year, the Council did their business creating this failed proposal during the day. Not once did the Council ever try to bring extreme views on both sides together to a solution. They didn't hold a hearing until the end of the process. Instead, the Council went on the public record with comments like "I don't know if this will pass the Hearings Board laugh test" (Knutzen) or "the concept of the built environment in 1990 is flawed" (Crawford).

    If people will recall when this Council took office, there were multiple appeals of the UGA decision. The first response of the Council was to hold a "settlement" meeting. At that settlement meeting, Councilmember Knutzen led the Council effort to exclude Futurewise from making a presentation, which was supported by Kathy.

    I have been involved in three challenges since that time, and not once has the County come talk to anyone of us about settlement. I offered settlement on one case, and never got a response from the County. During this rural element challenge, when the Hearings Board asked that question about whether settlement was possible, the county laughed and said "we're not settling with them."

    I certainly hope that we can get moderate views -- not extreme, on both sides, together to a solution we can support in the next six months. The past practice has not shown Kathy to follow what she preaches. I will, however, give her the benefit of the doubt and hope that she helps lead such an effort in the next six months. As a party to this challenge, I'd welcome that approach. How refreshing would that be?

  9. As a former Council member, I think Tim Johnson's comments are very valid. Far too much deference is giving to the Council. These planning issues are not simple and require going beyond one's political ideology. But that is very difficult when you are in a bubble and the administration (Executive) refuses to step up and tell the council "This is a huge waste of time and money and my staff will not work on helping you violate the Growth Management Act". County staff knew this plan was going badly sideways but council was allowed to drive the whole thing into the ditch of invalidity. In thatregard I have sympathy for Kathy Kershner; her poor understanding of GMA that has led to 3 invalidity rulings is not helped by no one in a position of authority saying "This is not a good idea". In that regard, Pete Kremen was a terrible Executive because he failed to support sound planning from his own staff.
    The same is true with the Prosecutor's office. The lack of commitment to good legal advice and calling BS on lousy planning ordinances has been negligent management of County resources. On this I will speak on two direct experiences I had while on the Council. On two occasions the attorney assigned to the council indicated that the council action was illegal. The council ignored that advice. On both occasions upon legal appeal the County Prosecutor allowed deputizing outside legal council that cost the County on the order of $80,000 in both cases. The County lost both cases. It was a shameful waste of money that should never have been enabled by the prosecutor. What the prosecutor should have done was said "It is my duty to tell you as the legal representive of the citizens of Whatcom County, that your ordinance is not sound and exposes the tax payers to costs that are not warranted".

    1. Agreed. How many times have I sat in on a meeting where Karen Frakes intoned, "Should the council wish to decide the issue so, the council is empowered to decide the issue so."

      No, no. That's not what they need to hear. They need to hear legal opinion on whether their decision is likely to stand against history and precedent. And they need to know what penalties, including lost opportunity costs and continued legal exposure, their continued intransigence may produce. Then they are making an informed decision.

  10. Pretension, Pontification, Purposeful Predilection
    These 3 P's describe every politician, including the relative newbie, Kershner, who pretends to represent everyone, pontificates niceties to softball questions and hides her true objective of doing exactly what her handlers ask.
    As Mr Sweeny sadly reports, she's running for re-election; that's too bad, because she's already done a terrible job, and is likely to repeat that if re-elected.
    There is no reason to give Kershner 'the benefit of the doubt' because she doesn't believe her position is supposed to be non-partisan, and its hard to imagine what stroke of lightning would change her mind.
    Excusing lack of knowledge -or the attempt to acquire it- doesn't help the matter, or the public interest.

    I'm hoping the new County Executive will note the appalling lack of understanding and discipline that has been severely lacking in County govt, and take strong steps to correct it. As McShane has noted -and he should know- Kremen, McEachran & Co. have left an awful legacy. Allowing amateur ideologues like Kershner to continue to set their myopic 'policy' without challenge is a ticket to continuing erosion of both good sense and good government that the citizens of Whatcom County deserve!

  11. Was there any rationale for the change to the fee schedule? It seems quite clear that applicants intending to benefit financially from a project requiring a SEPA EIS should be paying for the costs associated with the project (including the staff time to process the permits). I would guess that all SEPA EIS projects require substantially more than 50 hours of staff time and thus the taxpaying public is subsidizing private development projects in the county in one more way. Fiscal conservatives and taxpayer advocates should be shocked.

  12. I would guess that the fee schedule was changed for purposes of "streamlining" -- making things easy for the County's customers (property owners).

    Now that some pretty big projects are coming through, such as North America's largest coal terminal, it does seem that the cost-benefit analysis needs to change.

    Speaking as a taxpayer, that is.

    I do believe that SSA Marine/Pacific International Terminals can afford to reimburse the County for its time. And "staff time to review the Gateway Pacific coal terminal application" is not on my list of favorite charities.

    This is entirely relevant to the Rural Element, by the way. The County will have to consider its priorities and will have to work within the resources available. Because staff time has to be devoted to the Gateway Pacific project, with no prospect of reimbursement, the resources available to the County to address rural planning issues are reduced.

    Just a fact.

  13. Funny....Mr. Stallheim didn't seem to mind the complacency of the Prosecutor's office when he was in charge of Planning in the County. Rarely did anyone tell him publicly not to do things or adopt certain illegal policies or recommend illegal interpretations of county ordinances. And, on the rare occasions when he was told he was legally wrong...did he heed that advice by his esteemed counsel?

    I wonder how many Hearing Examiner appeals of Planning Department decisions have been filed since Mr. Stallheim left his employ with the County compared to how many were filed while he was in charge? Was that staff time free? Hearing examiner time? Prosecutors' time?

    I think reality of the situation is is this: it's perfectly acceptable for our county government to spend tens of thousands of taxpayer dollars on legal fights when the fight is for what is "right" (like when the county hired futurewise board member enviro lawyer David Bricklin, right?). The beef being raised here is really related to the fact that Mr. Stallheim's ideals are not those supported by the majority of the council.

  14. Well, hi there again, Mr./Ms. Anonymous. You may have noticed that the people who comment on this blog do so in their own names. As a result, the conversations on this blog are civil and evidence-based.

    Clearly, commenting anonymously is an invitation to make insinuations that are not supported by evidence and to personalize the discussion.

    Your rant about David Stalheim doesn't really make any sense, which makes it difficult to respond. I guess you're trying to blame him for something, but it's not clear what. Sticks and stones may break our bones, but not smears and insinuations.

    Your "reality" in the last paragraph doesn't make any sense, either, but I'll try to respond. The County hired David Bricklin because he's one of the best land use lawyers in the country, with an excellent record before the Growth Management Hearings Board. The County was so grossly out of compliance with the Growth Management Act that it needed that kind of help.

    Since that time, the Council has absolutely refused to consider the views of anybody who doesn't agree with it. As a result, it keeps losing before the Hearings Board. If it did listen to the views of those who are concerned about its planning, it might have responded in a way that would have avoided these losses -- and costs.

    As for the last sentence, well, it's just silly. "The beef" is that the County's planning doesn't comply with state law. Whatever the Council majority's "ideals" may be, it has a duty to comply with the law. That's what this is all about.