Wednesday, February 29, 2012

Coal Terminal and Rural Development: Updates

As I mentioned, the County’s e-mails show that it has scheduled a “pre-scoping” meeting Bellingham High School on March 20.  The County’s latest batch of e-mails (see page 7) shows that the meeting will start at 6 pm and end at 8 pm.  

I hope that the County doesn’t wait to provide public notice of this event until it has received applications for the coal terminal – since the applications aren’t expected until the day before!

Blaine’s newspaper, The Northern Light, picked up on the “pre-scoping” and gave credit to Get Whatcom Planning (click here).  Nothing in the Herald yet. 

“We’re Throwing a Party!” referred to the fact that Whatcom County is donating its staff time to the coal terminal project, after the first 20 hours.  This issue is discussed further in today’s “Gristle,” in the Cascadia Weekly (click here).

The County is changing the schedule shown in this blog, in order to provide the public with more time to review the measures that it’s proposing to “contain and control” rural development and otherwise comply with the Growth Management Hearings Board’s Order.

The March 8th meeting of the Planning Commission will be a work session, not a public hearing.  The March 22nd meeting will include a public hearing. 

This falls during my spring break, which I’ll be celebrating in Iowa (who wouldn’t?).  All the more reason for you, our readers, to plan to attend.  We’ll be posting more about this once the County’s made its proposal public.

Sunday, February 26, 2012

Whatcom County’s Rural Element: The Sequel

Apparently the Arab Spring, and every successful uprising since then, was masterminded by people who knew how to make revolt fun.  Get garbage cans, paint faces on them and let people bash them with sledgehammers.  Baffle the CIA by organizing the revolt via Twitter.

What can we bash, to make the rural element fun? Can we paint a face on something?  No scurrilous suggestions here, please. 

Because – let’s face it -- Whatcom County’s fifth or sixth or eight or tenth or twentieth year (who’s counting) of not adopting a legal Comprehensive Plan is not inherently full of fun. 

Last Thursday evening, David and I attended the kick-off for the County’s current effort to try to adopt a Rural Element that complies with the Growth Management Act.  Planning Commissioners, 7 out of 9 of whom were not on the Planning Commission when it last went through this exercise in 2009, listened politely to a PowerPoint presentation.  The event would not, I’m afraid, make much of a splash on YouTube.

But it occurred to me that the Rural Element does have one thing going for it:  It’s a SEQUEL. Americans love sequels!  Most of the top ten grossing films in 2012 were sequels! 

If we don’t want endless sequels, we need to make sure that the County does it right this time.  And there isn’t much time.  Here’s the schedule that the County has proposed:

Feb 28th – Draft published
March 8th – Planning Commission Public Hearing (Note:  this is only 5 work days after the draft is published)
March 22nd – Planning Commission Work Session
April 12th – Planning Commission Work Session
April 26th – Planning Commission Work Session
It sounded like all of the Planning Commission sessions will be held in the County Council chambers.

May 8th – Council Planning & Development Committee

July 10th – Compliance Deadline

Because the only public hearing is proposed at the beginning, presumably planning staff are under the assumption that the Planning Commission will not make any changes to the proposal that is supposed to come out the day after tomorrow.. 

This may make it appear that public testimony is merely window-dressing, but the public needs to participate anyway.  The need to hold additional public hearing(s) was raised at the meeting, and the County needs to hear that this is a good idea.

REMEMBER – the County Council can adopt the Planning Commission’s proposal without any public hearing.  So it’s possible that the March 8th public hearing will be the ONLY public hearing on this issue!  

Now, on this awards day, it also occurs to me that we should give our awards for good actors during our Rural Element sequel.  And by that, I mean people whose actions are good.

I’m going to call this award the Lammie, in honor of everyone’s favorite Growth Management Act acronym:  LAMIRD (limited area of more intense rural development).

(As an aside, when you put the search term “lamb statue” into Google Images, a frightening array of possibilities assaults your screen.  Apparently America is full of lawns graced by life-sized statues of sheep and lambs.)

The Lammie for February 23rd goes to our new County Executive, Jack Louws, who gave a very thoughtful opening speech to the Planning Commission.  He is, as he said, a “cheerleader” for compliance.  Here are the highlights of his speech, as closely as I could get them down – if you want to listen to the original, click here for the online audio.  

I think that it’s a real priority for Whatcom County to get into compliance with the GMA.

This continued noncompliance is definitely putting the County at a disadvantage at the state level when it comes to funding, especially the Public Works Trust Fund money and Centennial Clean Water fund money, both of which we use.  And as an aside to that, the Public Works Trust Fund is going to get expanded, appears that it’s going to get expanded, so that we can borrow money for projects such as JAILS and other infrastructure projects.  That’s half-percent money, but one of the keys for us is to get into compliance with GMA to be eligible for that.

It’s important to get this behind us if we can so that we can take a methodical look at where we’re going for 2016 [when the Comprehensive Plan has to be updated].  What I just, in short, want to say is to encourage you to do everything that you can to take a real hard look at what the ruling was, and maybe swallow twice if you’re not in agreement with it, but look at it from a public servant’s perspective and realize that we need to get into compliance and the ruling gives us a pretty good indication of what we need to do to get there.

There may be some challenges with what the ruling is with respect to your personal views of what land use should be in Whatcom County, but we need to take a good look at what the ruling is and get it solved. . .

I’m an encourager and a cheerleader to ask you to do everything we can to get there. We have some big projects coming up, and it’s imperative that we get the state’s help to get them done.

Of course, David and I have been saying for years, literally, that the County’s continuing noncompliance with the Growth Management Act imposes real costs.  But I suppose that it’s like Nixon in China – a former Mayor of Lynden may be believed by those who habitually scoff at Bellinghamites. 

And of course, the looming omnipresence of the need for a new jail, in conjunction with the County’s complete lack of available funding, adds urgency.

My fear is that the County’s going to use this sudden “discovery” of the fiscal implications of noncompliance to push through yet another noncompliant plan.  But maybe this sequel will break the mold and the County will actually Get Whatcom Planning. 

For that to happen, we need all of you to help.  

Thursday, February 23, 2012

Coal Terminal Update: We’re Throwing a Party!

Save the Date:  
March 20, 2012
Place:  Bellingham High School
Time:  TBD
Why:  Whatcom County Taxpayers are throwing a “pre-scoping” party for the Gateway Pacific Terminal!

Despite the fact that Whatcom County has not received completed applications for the Gateway Pacific Terminal, County staff are working very diligently to make sure that Gateway Pacific’s delay doesn’t cause Gateway Pacific any delay. 

Gateway Pacific has until March 19 to submit its applications to the County.  The County will officially roll out its environmental impact assessment process on March 20, the very next day.  Yee Haw! 

Whatcom County must have a crystal ball!  It can tell already that this version of the application will be complete and ready for scoping!   

This March 20 "pre-scoping" session is the culmination of more than a year of County staff work on behalf of the Gateway Pacific terminal.  Read through the e-mails posted on the County web site, and you’ll get a sense of the County’s painstaking attention to this matter.  Staff have been working with the state-sponsored Multiagency Permitting Team (the MAP team), staff have been working with the project applicant, staff have been working to make sure that the consultant team is ready to go. 

Staff travel, staff meetings, staff communication, staff review.  Hundreds and hundreds and hundreds of staff hours.

And who’s paying for staff time? Well, what a rude question.

But if we must talk about money -- it turns out that We the Taxpayers are footing the bill.  After the first $2,625.00.

Gateway Pacific’s payment for the preparation of the environmental impact statement is limited, by the County’s fee schedule, to $2,625.  That covers about 20 hours of staff time.  Everything above and beyond that time is a gift from all of us to all of them.  SSA Marine, Goldman Sachs, BNSF. . . .

After all, they need the money more than we do.

It used to be that the County’s fee schedule charged applicants $100 per hour for all staff time in excess of 20 hours.  But the County amended its fee schedule last year to eliminate those hourly payments (which other counties do charge).  (And of course, Whatcom County charges for staff time for many smaller projects that go across the permit desk.) 

So – we should all make sure to attend this “pre-scoping” party, since we’re paying for all of the County staff time that has gone into planning and preparing for it.   Party down!

Oh -- and if you want SSA Marine to help pay for the party, think about contacting County Executive Jack Louws.  He can change the fee schedule.  So can the County Council.

For the memo setting the date of the scoping session, see this set of e-mails  at page 33. 

For correspondence relating to the fee schedule, the application, and scoping, see my e-mails and Tyler Schroeder’s responses:This set of emails  at page 101,and this set of e-mails  at pages 2-4.

Saturday, February 18, 2012

No Fairness -- Not Even the Appearance

OK, I tried.  I tried to let it slide by.  You have to pick your battles, right?  And just because something is wrong doesn’t mean that you have any obligation to do anything about it.

But maybe there’s something about that word.  Fairness.

The Appearance of Fairness doctrine reared her enigmatic head the other night at the County Council meeting.  How sad, how terminally depressing, that this better angel of our nature looks like nothing but a cheap floozy when she consorts with Whatcom County politics.  

The news from Tuesday’s meeting was that two Council members were suddenly put on the spot. Lesa Starkenburg-Kroontje, the attorney for Nor’West Concrete – AND the County Council’s own attorney in its ongoing Growth Management litigation – told Ken Mann and Pete Kremen that they shouldn’t vote on a critical gravel mining issue affecting her client.  She said that they had expressed opinions on the gravel mine, and that their vote would therefore violate the “Appearance of Fairness.”  Here’s the Bellingham Herald’s article about the gravel mine and the attorney’s threat of litigation.  

Let us stop and make one critical observation:

The Appearance of Fairness does not appear magically, POOF! from behind the curtain like the Wizard of Oz.  If a matter is subject to the Appearance of Fairness doctrine, it is subject to all of the Appearance of Fairness doctrine, all along.  Not just at the last minute, and not just when it might be strategically beneficial for somebody. 

So what is the Appearance of Fairness doctrine, and when does it apply?  I blogged about this last year, when the issue arose with respect to the Gateway Pacific Terminal, so here’s more background information. 

For purposes of pondering the significance of last Tuesday’s event, let’s imagine a hypothetical situation. 

Imagine, hypothetically, an application for a gravel mine in Whatcom County.  Imagine that the applicant needs (1) a comprehensive plan amendment, and (2) a rezone for an area to be covered by a Mineral Resources Overlay zone.  (After all, stranger things have happened!)

If such an application were submitted, would the Appearance of Fairness doctrine apply?

Basic principle number 1:  The Appearance of Fairness doctrine only applies to “quasi-judicial” approvals.  Quasi-judicial matters are those that affect the rights of an individual more than the right of the community.  Quasi-judicial matters “adjudicate” an individual’s rights rather than deciding larger policy issues. 

Basic principle number 2:  Comprehensive Plan amendments are NOT quasi-judicial.

Basic principle number 3:  Zoning amendments are NOT quasi-judicial if they cover an entire zoning district.  Is a Mineral Resource Overlay a zoning district?  It certainly creates a “district” that is different from anything around it. And the decision about this district is an important policy decision.

Basic principle number 4:  When in doubt, look at the local code.  A “site-specific” rezone is quasi-judicial.  Whatcom County’s code says that a zone change application is NOT a “site-specific rezone" when it accompanies a comprehensive plan amendment.  As in our hypothetical example. 

How else can you tell if a land use matter is quasi-judicial, and therefore subject to the Appearance of Fairness?  You could look at the entire history of the matter.
  • The Planning Commission is subject to Appearance of Fairness.  So look at the Planning Commission hearing – did it meet the requirements of the Appearance of Fairness?
  • A site-specific rezone (quasi-judicial) goes before the Hearing Examiner in Whatcom County. Did the matter go before the Hearing Examiner?
  • The decision-makers, at the start of deliberations, would be asked to state whether they had ANY “ex parte contacts” (discussions outside of the hearing).  So, if anybody on the Planning Commission or City Council had discussed the mining proposal with – for example – the applicant or the applicant’s attorney, that discussion would have to be disclosed.  That’s a requirement of state law AND the Whatcom County Code. Did decisionmakers make any disclosures? 
  • The decision-makers would be asked to disclose whether they had received campaign contributions of more than $250 from anybody associated with the application, as required by the Whatcom County Code. 
  • No evidence would be allowed outside the written record and properly-noticed public hearings.  (Written notice to neighbors is required for quasi-judicial matters.)  The most important part of Appearance of Fairness is making sure that decision-makers aren’t swayed by evidence outside the record.  So you’d never have, for example, a “work session” where the applicant’s attorney was allowed to chat with County Council members outside a formal public hearing.  That’s an ex parte contact, and it just wouldn’t be allowed under Appearance of Fairness.  Or if it were accidentally allowed, it would have to be disclosed.
o   Now, let’s imagine that all of the decision-makers were influenced by an ex parte contact.  How could that happen?  Well, maybe the applicant’s attorney spoke with the Council at a committee meeting that did not include a scheduled public hearing (in a manner similar to “Committee Discussion Item 1,” here.)     Or maybe the applicant’s attorney met or spoke with Council members individually.  If all of them were thus “tainted” under Appearance of Fairness, they could all vote.  There’s a “savings clause” that allows elected officials to vote when too many are disqualified under Appearance of Fairness to result in a quorum.
  • Finally, you might also look to see if similar matters were handled similarly.  If a proposal for a Comprehensive Plan amendment and rezone application to add an MRL overlay were subject to the Appearance of Fairness doctrine, for example, a proposal that appeared before the same body, on the very same night, to remove an MRL overlay (through a Comprehensive Plan amendment and zone change) would also be subject to Appearance of Fairness.  Consistent treatment -- that's what Fairness is all about.
    • Ms. Starkenburg-Kroontje represented a second client, asking for a mineral resource overlay removal, on Tuesday, but nobody raised a peep about Appearance of Fairness.  
This is pretty basic municipal law, but it’s not something that County Council members deal with every day.  So imagine that “their” attorney -- the attorney who has been providing the County Council with advice about the Growth Management Act, the attorney selected and paid by Whatcom County  to represent the County Council on pending land use matters -- tells them that they’re subject to the Appearance of Fairness doctrine.  What “appearance” does that create? 

It creates an appearance of reliability and authority, of course. 

Now imagine that the attorney who is giving this advice is also representing a private applicant.  Both the applicant and the attorney thus have an economic interest in the matter.  The attorney has an ethical obligation to her client, the gravel mine, to represent its interests to the fullest.  The interests of Whatcom County?  Um, gosh, not this time. 

How does that "appear"?

Sunday, February 5, 2012

Sunday Funnies

The comics didn’t hold my attention for long today, and most of the rest of the Sunday Herald was about the Superbowl.  Now, if Green Bay were in the fray, I might have shown some team spirit out of empathy with the Outside Man and his cheesehead heritage.  As it is – meh. 

So what was there to do but look at that other foolproof source of entertainment:  the Herald on-line.

The Herald ran a front-page story about the Growth Management Hearings Board’s recent decision, which came out on January 9.  We’ve blogged about it a few times.  Part I; Part II; Part III; more; even more.  

This Growth Management story was posted on-line, and commentators get to post anonymously.  This does not tend to bring out the best in people.

My favorite comment was by a local developers’ consultant who posts anonymously under the moniker “sosad.” The anonymity policy is helpful to sosad because it allows him to hide the interest that he has in the matters that he discusses.  And he can make personal attacks without seeming mean.

His funny comment today probably was intended as a personal attack on the authors of this blog, but as we deconstruct it, we’ll see that it was actually a compliment.  He said:  "This is what happens when a fired planning director and a rejected planning commissioner want revenge."

Aw, shucks, sosad, this result was nothing that any competent planner or attorney couldn’t have predicted.  Don’t give us so much credit!

Let’s also look at the terminology.  “Revenge” is an interesting way to characterize an interest in the County’s compliance with the law.  According to sosad, I personally hate Whatcom County so much that I want it to –

wait for it –

have to comply with the law!  OMG!  What dastardly revenge to wreak on this good County!

Of course, dedicating thousands of pro bono hours to the cause of good planning is an interesting form of hate.  Toughlove, I’d call it.

Now, to set the record straight, David Stalheim, who started this blog, was Whatcom County’s planning director.  He was not fired.  But I most assuredly was “rejected” as a Planning Commissioner.  And that raises a funny, and interesting, point about appointed decision-makers.

At the end of 2010, I was up for reappointment after one partial term on the Planning Commission.  I was the sitting Chair of the Planning Commission, and had been elected Chair for the last two out of the three years that I had been on the Commission.  So I had some institutional knowledge, and also some background and training in land use.

When it came time for reappointment, I was the first Whatcom County Planning Commissioner ever whose reappointment application was voted down.  Tony Larson, who had defeated me in my race for County Council, voted against my reappointment.  Kathy Kershner, Bill Knutzen, and Sam Crawford also voted against me.

No reason was given.  It was widely accepted that this was pure, raw politics.  I didn’t share the political ideology of those doing the appointment, so of course I wouldn’t be appointed. 

Here’s what is funny about this.

The very same folks who voted against my reappointment are the ones who complain loudly that the Growth Management Hearings Board should be disregarded because it is an appointed body.  Political hacks.  I hear that Sam Crawford publicly groused about the “political” appointment of Hearings Board members. 


As it happens, the Hearings Board members have ample qualifications for their role. Qualifications for Planning Commission?  Agreeing with the politics and preferences of the County Council.

It’s a funny world.Have a funny Sunday!