Monday, December 10, 2012

The World We Inherit, The World We Leave Behind

Opened my Bellingham Herald this morning and found an article on our rural element litigation.  The article described the County Council's reasons for its decision to allocate $50,000 for a Seattle law firm to continue to fight for the County's perceived right to plan poorly. 

The Cascadia Weekly also covered this issue.  Although the Herald said that the $50,000 amount was approved "unanimously," the Weekly noted that Carl Weimer was the lone vote against it, presumably during the morning committee meeting.  As the Weekly observed,

"These petitioners agreed to sit down with the county and mediate outstanding issues with (pro bono) legal counsel. Most council members scoffed, declaring mediation was tantamount to surrender.

An exception was Council member Carl Weimer, who voted against the $50,000 appropriation.
'I actually agree with the appellants on many of the issues they are challenging,' Weimer explained, 'particularly many of the water resource issues. I don’t want to waste taxpayer money chasing bad policy.'”

Of course, since the money comes out of our pockets (as the Weekly explains). it's easy for the Council to hang tough.

Life is too short to muck about in the cesspool that is the Herald's online presence to explain our side of the story, but those who read this blog probably know why we are involved in this litigation.  I wrote three blog entries explaining the Growth Management Hearings Board's decision when it came out in January:

The Growth Management Hearings Board’s Decision on Whatcom County’s Rural Planning, In a Nutshell: Part 1, Sprawl

The Growth Management Hearings Board’s Decision on Whatcom County’s Rural Planning, Part 2, The Elements: Earth, Water and Fire

What Next? Growth Management Hearings Board Decision, Part 3
And, in reverse chronological order, here are some additional blog entries that explore some of the relevant issues:
Science and County Government:  The Perfect Storm – development around Lake Whatcom.
 Stuck in Lake Whatcom
If It Ain’t Broke – agricultural land loss
Rural Element:  No Peace In Our Time
The Golden-Brown Rule – problems with septic tanks in Whatcom County
Wet and Wild Whatcom County – water quality issues
Graphic Interlude – growth in Whatcom County
We Won’t Know What We’ve Got “Till It’s Gone – value of wildlife
It’s Only Money – impervious surfaces and flooding
Rural Sprawl:  Blame Bellingham? 
Whatcom County’s Rural Element:  The Sequel
All of these blogs really explore one issue:  what kind of world will we leave our kids?


  1. I loved Barbara Brennan's comment:

    "We give and we give and we give, and then we keep getting sued anyway," she said at Tuesday's meeting. "I'm getting tired of that. We were elected by the public, and I feel like we've got a diverse council with a lot of different perspectives, and we're supposed to be doing our job."

    I've always thought the job of the Council was to enforce existing laws - not cater to special interests, but what do I know? Apparently state and federal laws are only suggestions. Whatcom County is an entity unto itself.

    Glad to see business as usual.

    1. Uh huh. You're "glad" because you moved, California Girl! Well, if you ever get bored by sun and having fun, come on back and join the endless fight. . . .

  2. Might be interesting to wait and see what the Hearings Board actually rules on the last go around.

    In essence, Barbara is absolutely correct in what she said. For some strange reason the Council, in the earlier decision, thought kissing Futurewise patootie would somehow end the assaults so they, apparently based on legal advice to the effect that a policy of appeasement would have some positive impact, chickened out and failed to defend their decision in court.

    The decision not to challenge in court is inexplicable because the Hearings Boards, especially the Western Board, is routinely overturned in the Court process. That should surprise no one as several former board members, after their lucrative years on the board, have moved on to become big wigs in Futurewise.

    Hopefully, this time, the Council will have learned that appeasement of Futurewise in Whatcom County will have the same result Chamberlain's appeasement before WWII had and will challenge, if necessary based on the decision, in court. It's cheap and, generally results in a decision actually based on the GMA.

    1. Hi Jack,

      We agree on the first sentence. Whatever Council members may believe has been "given" (not the usual way of describing compliance with the law, but whatever), and whatever I may think of the County's planning, we do need to see what the Board thinks before we reach any conclusions about the next steps. The Council apparently doesn't agree, however, since it's girding its loins to fight the next round, regardless of what the Board might say.

      As for the rest -- Futurewise and my clients made it extraordinarily clear to the County, during its administrative process, which aspects of the changes proposed in response to the Hearings Board's decision did not meet the requirements of the GMA. Whoever's patootie the Council may have been kissing, it wasn't that of the petitioners.

      Courts overturning the Western Board? You may have read the Kittitas County case (, where the state Supreme Court upheld the Western Board on almost every part of its decision. The Court stated:

      The legislature granted authority to three boards to adjudicate issues of GMA compliance. Former RCW 36.70A.250 (1994),.280(1)(a) (2003). While county actions are presumed compliant unless and until a
      petitioner brings forth evidence that persuades a board that the action is clearly erroneous, RCW 36.70A.320(3), deference to counties remains “bounded . . . by the goals and requirements of the GMA," King County, 142 Wn.2d at 561. The deference boards must give “is neither unlimited nor does it approximate a rubber stamp.”
      Swinomish Indian Tribal Cmty. v. W. Wash. Growth Mgmt. Hearings Bd., 161 Wn.2d 415, 435 n.8, 166 P.3d 1198 (2007). 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. Lewis County, 157 Wn.2d at 498.

      The Court also said that counties "must [emphasized] regulate to some
      extent to assure that land use is not inconsistent with available water resources." Perhaps Whatcom County will prevail in its interpretation of "must" as meaning "doesn't have to." As you point out, we won't know until we know.

  3. I never understand Jack's rewriting of history and events. The Supreme Court has routinely gone against Jack's arguments, and in favor of GMA protections. And exactly who was on the Hearings Board that now has a lucrative career with Futurewise? And, exactly what nonprofit is there that would be considered a lucrative career?

    Speaking is kissing patootie. Let's roll out the agreements for Governor's Point, Trillium, Gateway Pacific Terminal, Caitac, and who else? I've never seen Futurewise (or Melious and Stalheim) write an ordinance for the Council, but I have seen some specials from local land use attorneys that Council members supported without question.

    I can't wait for a court decision, and now that the County has chosen to fight, I say: bring it. (Sorry, Jean!)

  4. David,

    Please read the sentence regarding board members and Futurewise again!

    1. What Board members have moved on to become bigwigs in Futurewise?

  5. Read it again, Jack. No clue (like usual) what you are talking about.

  6. David,

    Ask Jean, she'll be able to tell you.


    Look up Futurewise and check out their current board. Holly Gadbow and Ed McGuire are both identified as being former Hearings Board members.

    1. Cool. I'm pleased, but not surprised, that Futurewise has experienced, accomplished advisors. Google tells me that Holly Gadbow was a City Council member from Olympia and an employee with Washington Trade and Community Development Department. Ed McGuire was a planner who worked on agricultural issues in three states, was the Pierce County Attorney, and is currently an adjunct professor at Seattle University School of Law.

      I see from Futurewise's web page that other Board members include the northwest manager of Parsons Brinckerhoff, an enormous engineering and construction management company; a former mayor of Kirkland; a principal of Lorig and Associates, a development company; a farmer; and various assorted land use attorneys and professors.

      It's a pretty high-powered group. Goes to show that, outside of Whatcom County, there's broad-based support for the Growth Management Act. As Rob McKenna said:

      "It works."

  7. did you give David a hint regarding his question? Hard to believe he didn't get it. Actually, not that hard.

    1. Huh? You gave the answer. I had never looked up the state board before. An impressive bunch.