Sunday, April 28, 2013

For Shame, Whatcom County

I thought that nothing that Whatcom County did at this point could surprise me, but I was wrong.   Not only can the County still surprise, but it has the capacity to make me sick.

There’s no point attending County Planning Commission meetings these days, because it’s a closed club – a biweekly Tea Party convened to serve the building industry and its attorneys.  Perhaps the ingrown atmosphere is conducive to forgetting that the proceedings are taped, and that what is said in Northwest Annex doesn’t necessarily stay in Northwest Annex. 

Or maybe all of those involved believe that what follows is perfectly acceptable public discourse.

Attorney Jack Swanson appeared before the Planning Commission on March 28th – the audio was recently posted on the Planning Commission website (click the link from this website). 

Mr. Swanson ostensibly was representing three property owners, but he really was giving one barn-burner of a political speech.  He emphasized how angry everyone should be that the Planning Commission and County Council don’t have the last word in planning in Whatcom County, because the Council's decisions are subject to review by the Growth Management Hearings Board.   

(In reality, Jack knows that the County Council and Planning Commission have never had the last word, because he makes very active use of the courts to attempt to overturn decisions that do not favor his clients.  But railing against the Hearings Board, a 23-year-old institution, plays well to this crowd.)

And he urged the Planning Commission to vote for nullification.  That’s right, Jack Swanson was there to tell the Planning Commission to violate the law.

“I’m really concerned that we may get to the County Council here and they may throw up their hands and give up with the Growth Board, and remove my client’s property from the LAMIRD,” he said.  Well, that’s what the County Council has to do because it’s the law and the County did not appeal the decision. 

If Mr. Swanson wins in court, then he will want the Council to follow the law.  Not to make up its own mind about whether the court was right or wrong. 

But Jack wasn’t a tiny bit subtle about telling the Planning Commission to violate the law.  “Tell the Council, tell the Council to stand up to these people for a change,” he said, at about 1 hour and 25 minutes into the audio.  And then added “Am I getting angry?”

Nowhere near as angry as I was, four minutes later, when Jack Swanson justified his call for nullification by comparing the Growth Management Hearings Board's decision to the Holocaust.  Listen to it yourself, at 1:29:15 in the audio:

And now, as you know, you’re probably getting to wonder what the people felt like when they got on the rail, the cattle cars on the tracks that would take them to Auschwitz, you know.  Because that’s kind of where you are, right now, because of the failure of the County to appeal last year, year before, not appealing certain issues.  You’re now stuck with those, and it’s going to be a real fight to see what you can do to help out the people of Whatcom County, who deserve a lot more than what they’re getting right now.  So that’s my sales pitch, if you don’t mind.

I’ve been in the public process business for close to 30 years, and this is, without any competition, the most offensive and distasteful remark I’ve ever heard.  Nothing even comes close.  I had to turn off the audio when I heard that line because my hands were shaking. 

What disrespect for those who lost their lives at the end of that cattle car journey.  They were not facing the potential loss of speculative profits from their property, which is the concern of Mr. Swanson’s clients.  They did not have a right of legal appeal all the way to the Supreme Court, as Mr. Swanson’s clients do.  It’s just the worst type of demagoguery --

and our Planning Commission ate it up. 

Were you thinking that the Chair of the Planning Commission, Michelle Luke, would tell Mr. Swanson that he was out of line? 

Did you suppose that other commissioners, and County staff, would say “that’s totally out of line?”

Not a bit of it.  “That’s my sales pitch, if you don’t mind” were the last words of Mr. Swanson’s testimony.  Here are the next few lines from the audio:

Michelle Luke:  Thank you. 

Jack Swanson:  Thank you.

Michelle Luke:  Anyone else wish to speak?

And you know what?  The Planning Commission found Mr. Swanson so persuasive that they’re doing exactly what he asked for.  Yes, recommending nullification to the County Council.

This goes well beyond normal partisan discord.  It’s shameful, it’s out of control, and it’s happening right here where we live. 


  1. It appears to me that you think that the Commission shouldn't accept comments from people with whom you disagree.

    Your comments are always welcome, of course, speaking for myself.

    1. Mr. Onkels you are completely missing the point. It's not a question of disagreement about property rights that is the issue. Are you not aware that six million people were murdered during the Holocaust? I suggest you visit the Holocaust Memorial Museum website to learn about the horrible suffering they and many others endured. Better yet, go to DC and walk through the Museum.

      Comparing the alleged injustices suffered by the Planning Commission, Mr. Swanson's clients, or anyone else, to the suffering of Holocaust victims is insensitive, and demeaning. I believe Mr. Swanson's comments were unprofessional. Shame on him, shame on the Commission Chair and members for not rebuking him,
      and shame on you for trying to trivialize this, just as Mr.Swanson attempts to trivialize the Holocaust.

      Am I getting angry? You bet I am.

    2. Comparing planning decisions which irritate landowners to literal genocide is just a little extreme and fair game for criticism.

      The First Amendment does not protect an individual from criticism for their comments.

  2. This comment has been removed by the author.

    1. Planning Commissioner Onkels, I think that Jack Swanson, the Planning Commission, and I all have exactly the same First Amendment rights. Jack has the right to say what he thinks, and I have the right to say what I think about it.

      The Planning Commission has shown what it thinks.

      (My previous response gave Jack Swanson the wrong last name -- corrected here.)

  3. Jean, I'm having a hard time navigating the site for the audio link... Can you help me find it?

    1. Here's the direct link:

      It's under "2013," "Audio Version (MP3), March 28.

    2. Oh, now I was able to find it. Thank you!

  4. It should be noted that over 1.1 million people died in Auschwitz ( ). Whereas, no land owner in Lynden was forcibly thrown in a gas chamber or had their skin removed to be made into lamps because they weren't allowed to industrialize their properties without oversite, regulation or a commitment to sustainable environmentally conscious practice. No one dies when you can still drink the water and breath the air. People's children DO die when you poison them.

  5. Jean,

    I can't find a vote where the Commission recommended nullification to the Council. Do you have an approximate time for that?

    1. April 11th, about a quarter of the way through. I only listened to the discussion of and vote on Smith and Guide -- the Commissioners thought that Jack Swanson's information was more persuasive than the Hearings Board decision (Luke: "I don't see what they see"). So they voted to leave the LAMIRD boundary in the configuration that the Board had found to violate the GMA.

      I don't know whether anybody has told them that the Planning Commission's job is to "assist the planning and development services department in carrying out its duties." WCC 2.31.025. The Planning Commission apparently has decided instead to act as a reviewing court. And we the taxpayers get to pay for the hours and hours and hours of staff time that supports this nonsense. Bad management all around.

  6. Not able to help you there, Jack; I just read this post and the comments that followed. Assume the recommended nullification is documented somewhere in the audio, which few, including myself, listen to nowadays. I miss those written transcripts.

    More to the point, the comments of Gentleman Jack Swanson are unprofessional and the faux constitutional defense of Swansons remarks by Commissioner Onkels is predictably off-point.

    As a veteran Commission watcher, I am sure you agree.

    The reason there is little public participation on the Commission nowadays is that
    citizens with opposing viewpoints are subject to ridicule and ineffective efforts by the chair to maintain decorum. The big loser in this exchange is Chairman Michelle Luke, who should have rebuked Swanson for his remarks. Particularly since her experience as Chair over the past two years is a major plank in her campaign for Whatcom County Council.

  7. Thank you Jean,

    I guess, three points...

    first, I still did not hear a vote for nullification. I heard a vote, based on new testimony by the public and new input by planning staff to keep an area in a LAMIRD that the Hearings Board had decided should be put out... That is not nullification (a junior government declining to enforce the dictates of a senior government), that is simply a clarification that the Hearings Board will consider when the matter is brought before it again if the Council accepts the recommendation of the Commission and if the new approach is appealed. A new approach does not equal nullification. Disagreement with your position is not nullification.

    second, Swanson my be guilty of hyperbole but he didn't commit some horrific crime in his comments. I suspect he was trying, not very effectively, to point out that freedom is seldom lost in a land like ours overnight; it is taken away little, by little, by little and that, in the extreme, events like the holocaust come about because we allowed each little step without protest. At some point so many little steps have been taken there is no going back. As to the holocaust, I have always thought it a form of holocaust denial to remember only the millions of Jewish people who lost their lives and forget additional millions of gypsies, homosexuals, and sympathizers with those outcast groups, as well as others, who were also murdered in the holocaust. Maybe someday we will give those forgotten people their due. We may all cringe at mention of the holocaust but to forbid its mention is to hasten the day when we forget the evil mankind is capable of and, in doing that, enable another evil to rise.

    Last, the chair of the planning commission cannot cut off public comment or call it out of order unless something really abusive has taken place. Hyperbole is not generally abusive, even when off the mark. For a chair to intrude on even heartfelt, and possibly crudely put, hyperbole would be to risk having any final decision made by the Council thrown out of "court" so to speak. I know, as you certainly do, holding one's tongue may take biting on it to keep a comment in your mouth instead of on the tape but, in the case you refer to, the Chair did her job and does not deserve your disdain.

    1. Thanks for stating your opinions, Jack. I disagree with them, but there you are.

      The Planning Commission's vote didn't merely express disagreement with "my" position, it disagreed with the staff recommendation based on the Hearings Board's decision. Mr. Swanson will be able to argue all of his points in court. With respect to the Birch Bay Road/Valley View boundary, the Hearings Board has said twice that the property at issue should be taken out of the LAMIRD. Mr. Swanson has filed lawsuits both times. How many times does the Board have to say "no," I wonder.

      I did not say that Mr. Swanson committed a "horrific crime." I found his analogy to be disrespectful and distasteful. You disagree, characterizing it as merely "ineffective." We both have the right to state our opinions.

      With respect to the Chair's response, perhaps you have a point. In that room, during Passover, a comparison of a land use decision to the Holocaust victims in cattle cars on their way to Auschwitz obviously did not cause so much as a ripple of concern or discomfort. So I suppose you could conclude that the Chair was merely upholding our community standards.

      That's one reason that I found the episode to be so deeply depressing.

  8. Jack, if I were a cynic, I would say that your apologia for Jack Swanson is a thinly veiled attempt at damage control from a friendly wordsmith (you) on behalf of an errant practitioner (Swanson) who should have know better than to raise a Holocaust comparison to a local land use issue during Passover. And likely solicited by Swanson himself.

    Thank God I'm not a cynic.

    The observations in your last paragraph are completely off the mark, for several reasons....

    First, the Commission Chair has the discretion to interrupt any speaker whose testimony is outside the scope of the hearing. In this case, Chairman Luke's response should have been to gavel Jack Swanson when it became clear that his comments were veering from Birch Bay to Buchenwald. A quick rap of the gavel, followed by "those comments are out of order -- thank you and be seated" would have sufficed

    to state that the Chair's "intrusion on even heartfelt and possibly crudely put hyperbole would risk having a final decision thrown out of court is, in the context of the present fact situation, hogwash.

    The sad fact is that this Commission does not apologize to citizens. Not for it's own errant comments and not, in the Swanson case, for the comments of others

    No objection or response by anyone on the Commission is unfortunate; silence following an offensive utterance often denotes agreement

    One final word. I have observed Councilmember Kerschner's conduct of meetings. You can be damn sure that Jack Swanson would have never been able to get away with his Holocaust references before the Whatcom County Council.