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. 

Lake Whatcom: 

[Quotes from the Board’s Order:] 

In the FDO on Remand, the Board noted that Ecology has advocated a zero-discharge policy to ensure new development does not discharge any more phosphorus than a forested or native vegetated site. Zero-discharge requires some combination of limitations on impervious surface, preservation of native vegetation, reforestation, rainwater storage, infiltration, water reuse, and treatment of discharged water. During the compliance process, Ecology‘s Steve Hood participated in County Council and Planning Commission meetings, advising the County on the measures required. Mr. Hood explained that Ecology‘s water-quality criteria necessitate an 86% reduction in phosphorus loading from the developed portion of the watershed in order to restore the health of Lake Whatcom and reduce eutrophication.161 The 86% target already assumes no additional phosphorus run-off (zero discharge) from new lots. Mr. Hood made it clear that to the extent new development was not required to meet a zero-discharge standard, additional requirements (i.e., beyond 86% reduction) would have to be imposed on existing developments in the watershed.162 Ecology has made it clear that restricting new lot development is only part of the solution; pollutants from existing development and from development of previously-platted parcels must also be brought under control. Thus, the necessary measures to protect water quality must go beyond down-zoning.

In the County‘s most recent compliance action it has taken steps to control discharges from new development, but not that of existing development or previously platted parcels. The stricter stormwater recommendations advocated by Ecology and promised by the former County Executive, as the FDO on Remand pointed out, have not been adopted. If the County chooses to cross-reference its existing regulations as ―measures‖ to protect water resources, it cannot claim to be protecting Lake Whatcom when it has not yet adopted the regulations Ecology states are necessary. The Board is left with a firm and definite conviction that a mistake has been made. . . .

The Board recognizes that all of the solution may not necessarily be encapsulated in land use policies and regulations; some might be dealt with through other programs and laws: off-setting dedications of public lands, capital investments in water management, consumer incentive programs, voluntary stewardship campaigns and the like. The Rural Element of the Plan should indicate the measures the County will commit to for the protection of the Lake.

Rural Densities – It’s Not OK That The Entire Rural Area Could be Zoned at 5 Acres Or Less.

[Quotes from the Board’s Order:]

There are no measures to prevent the subdivision of all larger lots into five acre lots.

More than 78% of Whatcom‘s rural area is already zoned at densities of 1du/5a or denser. only 21.8 percent of rural Whatcom County is currently zoned R10A. Sixty-nine percent of rural Whatcom County is zoned for five acre lots and almost nine percent of the rural area allows lots 2.5 acres in size or smaller. 

Further, the Board has found no criteria in the Plan providing for the continuance of any rural areas less densely developed than 1du/5ac.”

 Limited Areas of More Intensive Rural Development (LAMIRDs) – INVALDITY

[Quotes from the Board’s Order:]

In Gold Star, our Supreme Court . . . stated “LAMIRDS are not intended for continued use as a planning device, rather, they are ‘intended to be a one-time recognition of existing areas and uses and are not intended to be used continuously to meet needs (real or perceived) for additional commercial and industrial lands.’”

Through an administrative approval process, building sizes or uses may be permitted that do not meet the “size, scale, use and intensity” parameters of 1990 development. In short, [the County Code] allows exceptions that swallow the rule.

“Rural Neighborhoods” Adjacent to City Boundaries -- INVALIDITY

[Quotes from the Board’s Order:]

Fort Bellingham/Marietta and, to a lesser extent, North Bellingham, contain a number of large undivided parcels. Whether these are golf courses, commercial greenhouses, or agricultural lands, the Board questions the application of the small-lot “2011 development pattern” standard to these parcels. Within the next 20 years, some or all of these parcels may be incorporated into UGAs or city boundaries, but until then, there is no apparent basis for [allowing undivided parcels to be divided into small lots]. . .

The Board remands Ordinance 2012-032 to the County to achieve GMA compliance by reviewing the boundaries of the Fort Bellingham/Marietta and North Bellingham Rural Neighborhoods and considering redrawing them to be more consistent with the small-lot 2011 development pattern. Similarly, the boundary of the Rural Neighborhood designation for 59 acres formerly designated as part of the Welcome LAMIRD must be reconsidered in that 48% of the Rural Neighborhood is made up of lots larger than 5 acres and does not meet the 2011 small-lot pattern.

“Tourist Commercial” Development:  Zoning Categories subject to INVALIDITY

 [The Growth Management Act allows counties to designate land for “master planned resorts,”  allowing “urban growth outside of urban growth areas.”  If Whatcom County wants to provide for large-scale resorts, it can do so legally.  A master-planned resort, in the cumbersome language of state law, is “a self-contained and fully integrated planned unit development, in a setting of significant natural amenities, with primary focus on destination resort facilities consisting of short-term visitor accommodations associated with a range of developed on-site indoor or outdoor recreational facilities.”  RCW 36.70A.360(1).

As you can imagine, people will notice if the County designates land for master-planned resorts.  If it designates land for a “Type II LAMIRD,” on the other hand, who will notice?  Type II LAMIRDs, which the County calls “Tourist Commercial” development, are only supposed to allow for “small scale development.” 

The County allowed “Type II LAMIRDs” as large as 20 acres, the size of Semiahmoo, with far more permissible building density than Semiahmoo.  The Hearings Board found that the 20 acre size limit is fine, but only IF the County limits the development of the site to “small-scale development.”  ]

[Quote from the Board’s Order:]

 “Petitioners have carried their burden to show noncompliance with respect to Tourist Commercial regulations, for although the zoning criteria of [the County Code] calls for “small-scale‖ development,” the building size exemptions in [another part of the Code] are written into the Tourist Commercial regulations. . .”

 “More Intense Rural Development”:  Vacant Land Should Be Excluded at Smith and Guide Meridian -- INVALIDITY

[Quote from the Board’s Order:]

The staff proposal showed a northern boundary where the developed area ended – as shown in 1990 aerial photos and on the ground today. The County then added a dog-leg, extending the LAMIRD boundary north across seven largely undeveloped off-highway acres in order to capture a single small building on a one-acre parcel at the north end of the dog-leg.

The Board has previously ruled that expanding the boundaries of a Type I LAMIRD “across lands otherwise not eligible for inclusion to reach a smaller area of ‗built environment” exceeds the proper scope of a logical outer boundary.  Indeed, as Gold Star explained, extension beyond the LOB of the existing developed area “allow[s] a new pattern of low-density sprawl” in violation of GMA Goal 2 – “Reduce the inappropriate conversion of undeveloped land into sprawling, low-density development.”

“More Intense Rural Development”:  Vacant Land Should Be Excluded Across from Birch Bay Square -- INVALIDITY

[Quotes from the Board’s Order:]

“[T]he Birch Bay/Lynden/Valley View LAMIRD designation is based on evidence of a trailer court that occupied a portion of the two larger parcels some years ago.  It takes a stretch of legal reasoning to allow “more intensive rural development” on the whole of these two properties based on that prior use, but the Board‘s FDO allowed it. A further two-acre extension of the LOB based on a one-time structure on an adjacent parcel is a stretch too far.

The Board notes this Type I LAMIRD is directly east of an I-5 interchange with an extensive Type III LAMIRD on the west. Understandably the property owners seek to develop a commercial node on the east side of the interchange. Thus, the effect of the inappropriately-large Type I LAMIRD will be to permit intense development in a rural area that has not been predominantly characterized by the built environment, in violation of RCW 36.70A.070(5)(d) and thwarting GMA Goal 2.. . .”[T]he existence of one small building in 1990 does not equate to a two-acre addition of ―more intense rural development.”

Cluster Development

[Quotes from the Board’s Order:]

[I]f a county chooses to allow Rural Cluster Development, the county must do so in a permanent manner that is consistent with rural character and provides appropriate rural densities that are not characterized by urban growth.  Thus, clustering regulations that give too much discretion to local building officials do not adequately protect rural character. And the rural cluster can create smaller individual lots than would normally be allowed in a Rural Area, but only so long as there is a significant area of compensating open space that is permanently protected.   In Whatocm County, however, “guidelines are permissive with words such as “should be” and  “where practicable.” The Board has a firm and definite conviction that Whatcom‘s clustering regulations . . .fail to protect rural character by vesting too much discretion in the building officials without enforceable criteria.
Additionally, the Board notes Whatcom County Code 20.32.320 defines a reserve tract as the area of a “subdivision or short subdivision which is intended for agricultural, forestry, open space or future development purposes.”  The Commerce guidelines for rural clusters provide: “The open space portion of the original parcel should be held by an easement for open space or resource use. This should be held in perpetuity, without an expiration date.”   If the County asserts clustering is a measure to contain development, allowing future development of reserve tracts contradicts its own Policy 2-DD2 to protect the rural area through County development regulations.

Rural cluster development involves a quid pro quo in that smaller-than-normal individual lots are approved in exchange for the permanent/perpetual open space protection of the property residue. The resulting development is more compact but balanced by the adjoining perpetual open space. Subsequent withdrawal of rural area open space protection would abrogate the rural cluster quid pro quo by allowing subdivision of the open space parcel and enabling greater density that would be more consistent with urban growth and would not be consistent with rural character. Counties must, therefore, ensure that this open space protection within rural cluster development areas is permanent, continues without expiration, and cannot be revoked so long as the area is governed by the Rural Element. When Whatcom County allows reserve tracts to eventually be converted, then the County is allowing “inappropriate conversion of undeveloped land.”

Water Transmission Lines

[This part of the Board’s decision is very difficult to follow, as it attempts to parse conflicting code provisions and to understand the mess created by poor drafting of County Code provisions.  The bottom line is that the Board upheld our concern that the County Code allows urban level water services in the rural area, encouraging sprawl.]

[Quote from the Board’s Order:]
“[T]ransmission lines” [over 8 inches in diameter] are allowed outright through the rural area without “transmission” being defined as excluding service connection and in the context of other regulations that require rural residents to connect to adjacent “transmission lines.”  The resulting extension of urban-level water service in the rural area is likely to increase sprawl in violation of GMA Planning Goal 2.


The Board hereby finds and concludes that the continued validity of certain parts of Ordinance No. 2012-032 would substantially interfere with the fulfillment of the GMA Planning Goals 1, 2, 9, 10, and 12.

[Here’s what the goals say.  I think that they’re pretty good goals. 

1) Urban growth. Encourage development in urban areas where adequate public facilities and services exist or can be provided in an efficient manner.

(2) Reduce sprawl. Reduce the inappropriate conversion of undeveloped land into sprawling, low-density development.

(9) Open space and recreation. Retain open space, enhance recreational opportunities, conserve fish and wildlife habitat, increase access to natural resource lands and water, and develop parks and recreation facilities.

(10) Environment. Protect the environment and enhance the state's high quality of life, including air and water quality, and the availability of water.

(12) Public facilities and services. Ensure that those public facilities and services necessary to support development shall be adequate to serve the development at the time the development is available for occupancy and use without decreasing current service levels below locally established minimum standards.]

[Invalidity applies to specified geographic areas, where the County allowed excessive density, and to specified zoning categories.]

Compliance Schedule

Compliance Due on identified areas of noncompliance:  July 3, 2013.


  1. Jean, where can I find a copy, or link to a copy, of the order?

  2. Hi Shane,

    It will be posted on the Hearings Board's website in the next week or so. In the meantime, perhaps this Google Docs link will work:

  3. "More recently, only Carl Weimer voted against spending $50,000 more of taxpayers’ money to continue this endless litigation."

    Perhaps not: Please refer to Council minutes for December 4, 2012.

    "Request approval of a contract with Van Ness Feldman GordonDerr, Attorneys at Law, to assist in representing Whatcom County in Growth Management Hearings Board Case No. 11-2-0010c and Case No. 12-2-0013 (AB2012-422)
    Approved Consent 7-0"

  4. Carl voted against the funding in Committee.

  5. Carl voted against the funding in Committee.

  6. Hmm... Do I believe Dave Onkels or do I believe Carl Weimer? Hmmmm...

  7. Carl voted against it in committee, and then voted for it at the regular session:

    I see: That's something like "I voted against it before I voted for it."

    Nerd: "Hmm... Do I believe Dave Onkels or do I believe Carl Weimer? Hmmmm..."

    Councilman Weimer hasn't been heard from here, and I am quoting the record. Believe whom you wish.

    "Carl voted against the funding in Committee."

    Carl's "straw vote" in committee was easy. His vote at the meeting counted.

  8. Carl's vote against the Ordinance is what really counted.

  9. I have the recording of the Council's Finance Committee on December 14th. The Finance Committee consists of Ken Mann (chair), Sam Crawford, and Carl Weimer. The $50,000 expenditure was voted on separately and passed out of committee by a 2 to 1 vote (Mann and Crawford in favor, Weimer opposed).

    Here's a transcript:

    Finance Committee, 12/4/12

    Around 30 minutes, 30 seconds

    Mann: Are there any questions about the outside legal fees, about spending $80,000 – Mr. Weimer.

    Weimer: Yes, I’d like to move to amend the ordinance, to remove the outside legal fees and vote on that separately.

    Mann: OK. Council member Weimer has moved to remove that and vote on it separately. Let’s just vote on that as a committee to see if we want to do that [affirmative vote]. OK, we’ll vote on that one separately. Mr. Crawford, did I see your hand up?

    Crawford: Well, I just wanted to say that I support, out of respect for Council member Weimer, at the same time I certainly support spending the money on the legal fees.

    Mann: Mr. Weimer.

    Weimer: I voted to remove that because I support the other three items but I don’t support the outside legal fees, so I want to be able to vote against that. I actually agree with the appellants on many of the issues they’re challenging, particularly many of the water resource issues that they’ve brought up, and I don’t want to spend taxpayers’ money chasing more bad policy.

    Around 31:50

    Mann (chair): We’re going to vote separately on the $50,000.

    Crawford: I’ll move that as a separate item.

    Mann: It’s been moved to recommend approval of that as a separate item. Let me say, Council member Weimer, I certainly agree, I hate spending taxpayers’ money litigating, litigating our planning decisions, and looking at our Gant chart for our next round of 10, 20-year planning I’m sure we’re going to find that to be the case again. I don’t see mediation as a viable alternative, although I did appreciate the letter from the people who have appealed our decision. I don’t see that happening. So, I am not going to support that. I apologize. All in favor of voting to approve the $50,000 for outside counsel, signify by saying “aye” (Mann and Crawford say “aye”). All opposed?

    Weimer: No.

    Mann: That passes, 2 to 1.

  10. "Carl's vote against the Ordinance is what really counted."

    You guys are hilarious and Orwellian.

  11. Thanks, Dave. Your support is special for us "guys".

  12. Mr. Onkels,

    Jean Melious has written an extensive article detailing the failures of the county planning commission and council to comply with state law. With all that meat on the table, the only bone of contention you can find has to do with whether or not Councilman Weimer voted against spending “$50,000 more of taxpayers’ money to continue this endless litigation?”

    And you’re calling Mrs. Melious and Mr. Stalheim “hilarious and Orwellian?”

  13. I think that Mr. Onkels is in face-saving mode, since he made a comment without understanding what was going on. The vote in the Council Finance Committee was the "vote that mattered" on the decision to spend $50,000 for litigation. That's the vote that sent the matter to the full Council, and the positions of the three committee members is very clear from the audio of the Committee meeting.

    Once the Finance Committee items reached the full County Council, the Council voted once -- one single vote, that is -- on a package of "Consent Agenda" items from the Finance Committee. These items are listed separately on the "Council Action Taken" document, which is probably what Mr. Onkels looked at, but there was just one vote on 41 items. All of the Council members voted in favor of that full package, most of which were uncontroversial. The Council audio is available here:

    This could go on and on, I suppose. I suppose that Mr. Onkels could argue that Mr. Weimer could have removed the $50,000 item from the consent calendar, but really, what's the point? I mean that in two senses. What is the point of Mr. Onkels' efforts to claim that Mr. Weimer didn't mean what he said when he voted against the item in committee? And what would have been the point, had Mr. Weimer removed the item from the consent calendar?

    But I say -- enough. As David pointed out, Council members showed where they stood when they voted on the Rural Element ordinance itself. The decision to hire lawyers was a footnote. I don't see anything Orwellian, or even hilarious (and I do like a good laugh), about the proposition that Council members' votes on the issues are what really count.

  14. Larry, if you go back through the archives of Get Whatcom Planning over the past couple of years, you will see that every time that Whatcom County lost a Hearings Board case, there is an effort by our development planning bloggers to change the subject to something miniscule to hide the fact that what is transpiring in Whatcom County planning really stinks.

    The rural element is a classic example of how the current Planning Commission and County Council have made things even worse, at times helped by staff.

    One of the craziest things that the County did was to adopt their development regulations as GMA measures in their comprehensive plan. While we argued that this system has the plan implementing the regulations, reverse from common sense planning, the Hearings Board said it was alright. However, they made clear that whenever the County amends their regulations, they must now provide a GMA notice that makes clear that both the plan is also being amended because of the cross-reference. This means that every development regulation amendment is now a comprehensive plan amendment, and subject to appeal to the Hearings Board.

    While the County Council was wise enough to reject many of the Planning Commission recommendations last year, and again this year, there are many of the Hearings Board invalidity decisions that come straight from the Planning Commission.

    The Planning Commission conceived of the idea of allowing any building size expansion in commercial and industrial areas. This was rejected by the Board.

    The Planning Commission conceived of extending a LAMIRD boundary along the Guide to include 7 acres of vacant property because a 1,200 square foot building happened to be on the property in 1990. This was rejected by the Board, and has caused continued invalidity of that entire LAMIRD.

    The Planning Commission allowed Gold Star representatives to convince them that when they dug away the weeds that there was a remnant of a foundation building maybe 400 square feet in size that existed in 1990. That was justification to provide commercial zoning for Gold Star at the intersection of Birch Bay Lynden Road and I-5.

    I think it was the Planning Commission that adopted an entirely new provision that allowed water transmission lines to be extended in rural areas. We told them it wouldn't work, but they did it anyway. Guess what? The Board rejected it.

    The end result is that invalidity is imposed on these LAMIRDs and the zoning that implements the LAMIRDs. Even Jack Swanson, the developer's attorney, wrote a letter in the record that said "invalidity sucks."

    The decisions of the Planning Commission and County Council have resulted in something that certainly stinks. They have made this element worse every time, and they have an entirely big hole to dig out of now. Maybe our illustrative Planning Commissioner can start a dialogue about how he thinks he can address the areas of noncompliance and invalidity. That would be progress.

  15. "Does anyone remember laughter?" Robert Plant

    1. “Yes, there are two paths you can go by, but in the long run
      There's still time to change the road you're on."
      --Robert Plant

      I think that David was in a good mood when he wrote his comment, because the Packers had just won their playoff game. Heaven help us if they lose.

  16. David, a fan of a club named after a slaughterhouse?... Say it aint so!!!