Friday, January 25, 2013

Two Whatcom Counties

Sad to say, it's hard not to conclude that we're two countries, here in Whatcom County.

Shane Roth recently summarized an interview with Whatcom County Council Chair Kathy Kershner on KGMI.  The interviewer was Kris Halterman, whom I have never met but Shane describes as a member of the Tea Party. She has, in fact, posted recently on the Whatcom Tea Party web site.   

That was quite an interview.  The topic was the Rural Element and the Growth Management Hearings Board's recent conclusion that the County remains noncompliant with the Growth Management Act.

Ms. Halterman had a lot of preconceived notions of the most dramatic, and often incorrect, kind.  And some of Council Chair. Kershner’s responses had me scratching my head as well:  
  • Futurewise wants more development in cemeteries  -- huh? 
  • David Stalheim and I prepared the (serially invalidated) Rural Element – huh?  

The fact is that neither David nor I have been affiliated with the County in any way for years -- which Ms. Kershner must know, since she voted against my reappointment to the Planning Commission at the end of 2010. 
The Council took several years to mold the Rural Element into its own likeness before approving it in 2011.  These were the changes, of course, that have led to serial determinations of noncompliance.
So really, Ms. Kershner was giving discredit where no discredit is due, and not claiming sufficient discredit for her own role in voting for the noncompliant, invalidated Rural Elements as they come before her. 
The interviewer's dramatic reading of Mein Kampf before concluding by warning everyone to keep an eye on the Growth Management Hearings Board was another highlight.

And then there’s Karl Uppiano's most recent comment on the Whatcom Excavator, that “anonymous” web site that has all the same information as the Citizens’ Alliance for Property Rights (CAPR) and its political branch, the Whatcom County Planning Commission. 

Mr. Uppiano apparently was very upset that CAPR’s favorite wetland specialist, Steven Neugebauer, lost yet another case for yet another property owner.  The Whatcom County Hearing Examiner found that a whole raft of wetland specialists, ranging from consultants to Whatcom County’s wetland specialist to a state wetland specialist, were right about the existence of a wetland on a property.  And that Mr. Neugebauer’s assessment of the site, which – surprise! – lead to the conclusion that there was no wetland on the site, was insufficient. 
Mr. Uppiano was so upset, in fact, that he appears to be proposing the overthrow of the government. 

After quoting the Declaration of Independence, including this statement – “when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security” – Mr. Uppiano states:   

“Just how much abuse are we supposed to suffer before we are driven to invoke this argument a second time? How much is enough? Are we not citizens? We are subjects!”


You know what?
The Growth Management Hearings Board does not resemble Adolf Hitler, and the Growth Management Act is not a second Mein Kampf. 

The conclusion that a property contains a wetland, which the Hearing Examiner stated “likely can be filled” with a “modest amount of offsite mitigation,” is not an affront that demands the overthrow of the government.

Tuesday, January 22, 2013

Coal Terminal Scoping -- From the Sea Surface Microlayer to the Global Commons

I'm sure that hundreds of people, or maybe 2, will want to read RE Sources' scoping comments, submitted this afternoon --

so here they are

There are a lot of excellent scoping comments available for everyone to review through the scoping website. RE Sources' comments are simply among those excellent comments.

Word went out yesterday that 94,000 comments had been submitted.  By the end of the day, perhaps a round 100,000?

Tuesday, January 8, 2013

The Growth Management Act? It's not what the Hearings Board "wants". It's not what Futurewise "wants." It's the law.

The Bellingham Herald just posted some coverage of the fact that Whatcom County's Rural Element still doesn't comply with the law.

Someone asked me today, "How can Whatcom County keep violating a law passed 15 years ago?"

Well, the article makes it pretty clear how and why the County has been an outlaw for so long.  The County simply pretends that the Growth Management Act isn't really the law.  It's just what "Seattle-funded" special interests "want."

The folks who have been working towards compliance with the Growth Management Act are (1) my clients and I, and (2) Futurewise.  

For myself, I say -- hot dang,  who is this "Seattle" and why won't he or she pay me?  My clients and I are local, and I'm doing this for free.  My clients pay expenses out of their pockets. 

And Futurewise Whatcom is a local body with a local director and a local steering committee.

There's also a state Futurewise, with legal expertise.  If that's bad, Council member Kershner -- quoted in the article -- must feel even greater disdain for the Building Industry Association (a national organization with state and local branches) and the Chamber of Commerce (ditto). 

The irony, of course, is that while my clients and I are falsely accused of "Seattle funding," the resources are actually flowing in the opposite direction.  You, my fellow taxpayers, are paying a Seattle law firm to defend the County's allegiance to sprawl. 

The Seattle lawyers won't do this for free, as I do.   They won't be spending 12-hour days standing at the photocopier or putting tabs on exhibits, as my clients do to help with filings, because you will be paying their clerks and paralegals to do that for them. 

It's an uneven fight.  But you won't see that in the Herald -- or hear it from the County.

Saturday, January 5, 2013

Déjà vu All Over Again: Whatcom County Still Noncompliant with the Growth Management Act, and Invalidity Imposed Again

The new year is starting out a lot like the old year for Whatcom County. 

On January 9th, 2012 (that’s last year), the Growth Management Hearings Board issued an Order that found that the County’s planning for its rural areas was noncompliant in many respects.  The Board imposed invalidity – the most stringent mechanism available under the Growth Management Act – because some of the County’s plan and laws would “substantially interfere” with Growth Management Act goals.   

On January 5th, 2013 (that’s this year), the Growth Management Hearings Board issued an Order that found that the County’s planning for its rural areas was noncompliant in many respects.  The Board imposed invalidity – the most stringent mechanism available under the Growth Management Act – because some of the County’s plan and laws would “substantially interfere” with Growth Management Act goals.   

Haven’t we been here before?  Why, yes.  Yes, we have. 

Last year, the DePlanning Commission and then the County Council spent about seven months on the Rural Element, trying to come into compliance with the Growth Management Act.  We started that process with high hopes, thinking that the County’s significant loss before the Board would lead to some good planning.  And to give the County credit, it has achieved compliance on some matters. 

But it quickly became clear that the Council majority was focused primarily on making sure that as much development as possible, with as few restrictions as possible, could take place outside of cities, in the County’s “rural” area.  And, in a nutshell, that’s why the County lost again. 

When it came down to the final vote, only Carl Weimer voted against the new Rural Element on the grounds that it allowed too much development.  Bill Knutzen and Barbara Brenner voted against it because they believe that it allows too little development in rural areas. Sam Crawford, Ken Mann, Kathy Kershner and Pete Kremen constituted the Council majority that passed the ordinance.   

I’m not privy, of course, to the decision regarding exactly how this money will be spent, but the County has many current and endless potential future lawsuits to bring and defend. 

And as long as it has a willing and complacent source of funding – yes, that’s We the Taxpayers – it can continue to fight against good planning for the next 20 years, just as it has fought for much of (not all of) the past 20 years.   

For the true wonks among you, a brief summary of the issues where the Board found that the County was out of compliance with the GMA is included below.  For the most part, it’s in the Board’s own words – including the italics and words in bold.  There were a few issues that are so hard to explain that I added a few lines myself.  Those explanations are at the start of the sections, in brackets. 

As we knew we would, we lost some of our issues.  We always know that we’ll lose something, because the Board will always find in favor of the local government on something.  On as many "somethings" as it possibly can, in fact.  It bears saying again:  It’s really hard to win Growth Management Act cases against local governments.  All of the cards are stacked in the County’s favor.  The County has a presumption of validity.  Challengers have to show that the County’s actions were “clearly erroneous.”  The Hearings Board bends over backwards to find something, anything to like when local governments adopt plans.   

I have to keep saying this because we still have folks in this County, including Council members, who portray the Growth Management Hearings Board as a bunch of property rights-hatin’ zealots who will do anything to trip up Whatcom County.  It just isn’t true.  The truth of the matter is that the County gets the benefit of the doubt and still lost on most major arguments.
With no further ado, here's the summary.