Double Trouble

The losses and violations keep piling up for our beleaguered Whatcom County Council. 

The Growth Management Hearings Board issued another ruling on January 23rd that the County didn't comply with the Board's order on the permit extension ordinance ruled invalid on August 2, 2011. The county has until April 23rd to get into compliance.

Just to refresh you about what this case is about, you will recall Jean's writing about the "zombie permits", the miraculous permits that Whatcom County resurrected from the depths of PDS for just $100 per application (cheap even in comparison to the EIS fees paid for coal ports!). 

Whatcom County said they cured this latest violation by passing a resolution saying they won't do it again.  The problem is that resolutions have no force of law.  This blogger knew that.  The Hearings Board knew it.  Why can't the County Prosecuting Attorney Office figure it out?  In the Board's words:

"...the County adopted a non-binding Resolution to cure the Ordinance's failings.  A resolution does not bring the County into compliance with the GMA nor the Board's Order because, by the County's own Charter, a resolution has no force of law."

But the Board wasn't done with its dissatisfaction with Whatcom County:

"This leads to another problem with the County's attempt to comply with the Board's Order.  On August 4, 2010, the County issued four permit extensions.  This action occurred after the County received the Board's Order of Invalidity...The expired permits which were extended...were not exempt from the Order of Invalidity....

"During the compliance hearing, the Board gave the County an opportunity to explain why the short plat extensions...were granted.  The County did not have a response.  Of equal concern during the Compliance Hearing, was the county's response to Board questions about adoption of a Resolution instead of an ordinance." (emphasis in original)

In the past 1 1/2 years, the County Council has lost on all four cases brought before the Growth Board:

• Ferndale UGA
• Birch Bay Rezone
• Permit Extension 
• Rural Element

The Ferndale UGA and Birch Bay rezone cases have now been corrected. 

The permit extension ordinance is a significant issue, because if Whatcom County thinks that it can create new development rights that don't protect the environment under an interim six month ordinance that can't be challenged because the process takes more than six months...then we have a serious loophole that Mitt Romney would just love to put his money into. 

But, the real monkey to be watching for Whatcom County GMA compliance over the next six months will be the response to the sweeping findings of "clearly erroneous" on the rural element.  I compiled a matrix of the issues with quotes from the Board for those of you that don't like reading 177 pages. I call it the Hearings Board cliff note version.  This document has been shared with the Executive Louws and the County Council. 

Let's say it again:  It is time to Get Whatcom Planning. 

GMA and Lake Whatcom

I happened to hear some discussion today regarding the city's role in paying for additional inspection of septic systems in the Lake Whatcom Watershed.  $194,416 for two years is what the proposal would cost the city.  Meanwhile, as Jean has pointed out in this blog, Whatcom County is out of compliance for the amount of development they continue to allow in the Lake Whatcom watershed.

The Growth Board didn't waste time getting to their concern about the lake: 

The Board reads the record concerning efforts to reduce phosphorus loading in Lake Whatcom to establish a common understanding that any incremental development in the watershed, without surface water controls, is likely to increase water-quality degradation. Therefore the baseline for "minimizing development" is not the prior zoning but rather is the existing condition. .

The Board noted the County Executive committed to Ecology that the County would enact stringent new controls on watershed development aimed at zero-discharge of phosphorus-laden runoff. Those controls have not been enacted.

I have been compiling some information to put a paper together about rural growth in Whatcom County. The following graph shows Assessor data on structures built in the Lake Whatcom watershed.  Please take notice of the clear cycles, which correspond to significant events in the history of sewer line extensions in the Lake Whatcom watershed.  Lake watchers know these dates better than I, but they include several Clean Water Act challenges all the way to the Supreme Court.  In 2001, a sewer moratorium was lifted and additional development was allowed.  Since 1990. there were 1,984 residential structures built in the rural areas of the watershed.

Now, the following map shows the distribution of these structures and platted lots from 1990 on.  There were 327 lots created in the rural parts of the watershed.  That is a whole lot of development that was enabled while growth management was in place in Whatcom County.

For some historical perspective of sewer lines, I found the following articles:
http://www.whatcomwatch.org/old_issues/v9i3.html#story1 
http://www.whatcomwatch.org/old_issues/v9i2.html#story2
http://suddenvalley.com/files/views/sv-views-2005-04.pdf
http://lakewhatcom.org/svsewer-history.htm
http://bbjtoday.com/blog/incorporation-decision-looms-for-sudden-valley/1090#

One of the interesting notes in these articles is the fact that the Hearing Examiner for Whatcom County, Michael Bobbink, issued a permit in May 1998 for a sewage detention tank.  The Bellingham Herald, on December 10, 1998 wrote:

"the environmental downside, however, is that the tank will permit construction of 600 new homes over the next four years if ongoing legal challenges filed by local environmental activists ultimately fail...As we've said before, the County Council should place a moratorium on new subdivisions in the watershed and commission a definitive study of the cumulative, long-term impacts of new housing on water quality...."

On January 24, 2012, the Whatcom County Council will hold a public hearing on whether to enact a continuing moratorium on the creation of lots less than five acres in size in Whatcom County. 
It is like a Soap Opera.  Same story.  Different year.

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..

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

When you sit in a windowless County Council chamber hour after hour, watching Power Point presentations about the Growth Management Act, perhaps it is easy to forget that planning ultimately is about what happens on earth.  On the ground.  Where critters live and water flows. 

And houses burn down.  (Had to shoehorn that “fire” element in there somehow!).

Water:

The Growth Management Hearings Board found that there was “ample evidence” about “risks to water supply, water quality, and water resources for fish from rural development in Whatcom County.” 

The Board noted testimony from the Department of Ecology, stating that our current regulations cannot mitigate the impacts of small lots, increased pavement, and the resultant pollutants that will drain into Lake Whatcom. The Board observed that “the measures necessary to protect surface and groundwater resources in the Lake Whatcom area are clearly identified in the record” and concluded that incorporating them into the Rural Element “should be a straightforward task.” 

The Board noted evidence of saltwater intrusion requiring the closure of wells on the Lummi Peninsula, where houses were built at one unit per acre.

The Board noted that the County had planned for dense residential development in areas of north of Bellingham (“North Bellingham” and “Fort Bellingham/Marietta”), despite the closure of the Nooksack River Basin to surface and groundwater appropriation.

In short, the County’s planning needs to take account the constraints, limitations, and signals from the natural world. 

Critters:

This is particularly true of areas that the County itself has found to be especially valuable.  Whatcom County has identified one wildlife corridor as a critical area requiring protection:  the Chuckanut Wildlife Corridor, which the County’s critical areas ordinance states is “the last remaining wildlife corridor area in the Puget Trough where natural land cover extends from marine waters to the National Forest Boundary east of Chuckanut Mountain. . .”

The County planned and zoned around 118 acres in the Chuckanut Corridor, from Lake Samish to the Skagit County line, for two-acre residential development.  We pointed out that reducing, degrading, and fragmenting habitat is the key cause of species extinction, inconsistent with the County’s obligation to conserve essential habitat.  As the Board said, “the County's response is silent regarding how its regulations protect the Chuckanut Wildlife Corridor.”

Water and Fire:

Rounding up our review of the elements, with respect to water and fire, the Board found that the County failed to "consult and coordinate with the City and other service providers with respect to water service and fire protection services.”  Why does this matter?

The Board found that “the County's Rural Element named the City and many of the water providers to whom the City supplies water as future sources of public water supply capable of meeting the needs of the proposed rural development.”  The City has adopted a policy stating that it will not supply water and sewer outside its own urban growth boundaries, however, and the Board concluded that the County had not coordinated with water providers to ensure that they would actually supply the water that was assumed to be available in the plan. The County’s own Plan requires such coordination.

Similarly, the Board found that the County’s own plan required coordination to ensure that fire services could be provided in densely populated rural areas outside of the City, and that the County had not coordinated with the service providers.

So, earth, water, and fire – the County needs to take them all into account when it’s planning to protect rural character.

What’s next?

I could go on, and on, and on about additional aspects of the Hearings Board’s decision, but it probably already seems like I’ve gone on, and on, and on.

So the next installment of the Hearings Board Trilogy – don’t all great epics have to be trilogies? – will look at the most important issue of all:  what comes next.

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

 

I spent most of yesterday absorbing the Washington Growth Management Hearings Board’s 179-page decision, which found that more than twenty aspects of the rural land use plan and zoning regulations that the County Council adopted last year violate state law. 

Some of the problems that the Board found are bigger than others.  Some will require changing a few words; others will require some real thought on the County's part.

Before somebody chimes in that the Hearings Board is just a bunch of tree-hugging hippies who hate property rights, let me say this:  all of the cards are stacked in the County’s favor under the Growth Management Act, or GMA.  

• The County’s plan and development regulations are presumed valid.  As the Board said, “This presumption creates a high threshold for challengers as the burden is on the petitioners to demonstrate that any action taken by the County is not in compliance with the GMA.” 

•  The Board must rule in favor of the County unless petitioners show that the County’s plan and regulations are “clearly erroneous.”  In order to find the County's action clearly erroneous, the Board must be "left with the firm and definite conviction that a mistake has been committed."

• Finally, in reviewing the planning decisions of cities and counties, the Board is instructed to recognize "the broad range of discretion that may be exercised by counties and cities" and to "grant deference to counties and cities in how they plan for growth.""

It's a tough, tough law for challengers.  The fact that the Board found more than 20 violations, even when it is required to give the County every possible benefit of the doubt, shows that there’s work to be done. 

Without boring everyone with an exhaustive list, I do want to mention some of the main issues that concerned the Board.  Even if I only talk about the main issues, it’s going to take a while.  So this blog will just focus on one big issue:  the issue of sprawl.  In the next few days, I’ll talk about some of the other issues.

The Board found that the quantity, scale and intensity of development that the County planned for in rural areas does not prevent sprawl. 

The sprawl issue has several components. 

The County’s main task in this planning exercise was to establish “Limited Areas of More Intense Rural Development,” which are places where businesses and dense housing can be located outside of cities.  These areas are supposed to be – yes – limited, but the County provided for uses that are larger and more intense than anything that most cities allow.  The Board also found that many of the “limited” areas were too large.  In techno-wonk terms, these issues are the LAMIRD zoning and LAMIRD boundary issues.  These are the issues that led the Board to impose invalidity.  

In addition, the Board found, more generally, that County’s plan did not contain “the necessary measures to reduce the inappropriate conversion of undeveloped land into sprawling, low-density development in the rural area.”  The County argued that this is not the case, because its Plan includes a policy of concentrating growth in urban areas.   As the Board states,

The Board notes Policy 200-1 - "Concentrate the majority of growth in urban areas" – has not in fact constrained the County from adopting land use designations that provide capacity for all its projected population growth to occur in rural lands.  (Emphasis in the original.)

This takes us to the second sprawl-related issue:  rural population.

The Board found that the Plan treats rural population inconsistently.  This will require a little explanation.

The Growth Management Act requires the County to make sure that the County (including the cities) will plan and zone for enough development to accommodate population growth over the next 20 years.  That means that the County has to show that enough land is available for development – whether through denser development within cities, through the expansion of cities onto undeveloped land, or by allowing more new development in rural areas – for everybody to have a home.

The County's Comprehensive Plan allocates growth to urban and rural areas based on the Office of Financial Management's (OFM) twenty-year forecast. 

The County’s Plan says that 67,692 people will live in unincorporated rural Whatcom County by 2029. The 2010 population census shows there are already 65,041 people living in the County’s rural areas.  So, supposedly, only 2,651 additional people will live outside of cities by 2029.

That’s just what the County’s Plan says. 

What the County’s Plan does is completely different. 

As the Hearings Board says,

[U]nrebutted evidence demonstrates that vacant lots in existing rural areas can accommodate 33,696 additional people, where only 2,651, are expected and the parcels created by the County's LAMIRD designations alone result in the potential for an increase in population of 4,512.

So the Plan says that only 2,651 additional people will live in rural areas, but the County has actually planned and zoned for enough houses to be built for at least 49,440 people outside of cities.  The Plan is internally inconsistent.

Is 49,440 a lot or a little? 

The County’s entire projected population growth by 2029 is  46,615.

In its rural area alone, without a single soul moving into a city, enough houses can be built for 2,825 more people than the County's entire projected population increase between now and 2029.  And bear in mind that this is uncontested.  

Why does this matter?

A low population “estimate” for the rural area means that the County’s Plan has to provide for more development in cities.  More development in the cities means that the cities expand more onto undeveloped land. 

In other words, the County is playing a shell game. 

It is planning and zoning for an enormous amount of rural development, but its Plan pretends that these rural lots and rural residential zoning don’t exist.  Then the Plan says that cities need to expand more, in order to accommodate population growth.

The result, as the Hearings Board found is a conflict with the goal of locating most population increases in cities.  In other words, sprawl.