Blind Justice

People in many professions face the occupational hazard of being asked for free advice, and lawyers are no exception. I’m usually asked about (1) wills and divorce (people in my demographic), or (2) landlord-tenant law (my college students).

Law question category (3) lately has been “appearance of fairness.” Maybe I just attend unusually dull parties, but it seems like quite a few people have suddenly acquired a burning interest in that topic. The Gateway Pacific Terminal/Cherry Point project is, of course, the reason.

For those who share this interest, one source of information is a publication called The Appearance of Fairness Doctrine in Washington State, published by the Municipal Research and Services Center of Washington (here’s the link). What follows is a summary of the positions on the law taken by that document. In other words, the following discussion does not provide legal advice or create an attorney client privilege.

What is “Appearance of Fairness”? It’s a legal doctrine, partly created in court cases and partly written down in a statute (chapter 42.36 RCW), that is intended to “instill and maintain confidence in the fairness of government proceedings.”* It is “intended to protect against actual bias, prejudice, improper influence, or favoritism. It is also aimed at curbing conditions that create suspicion, misinterpretation, prejudgment, partiality, and conflicts of interest.”

What does “Fairness” Mean? It means that hearings are supposed to be fair and that decision makers are supposed to be free of bias. Local land use decisions have been invalidated when “[h]earings appeared unfair or public officials with apparently improper motives failed to disqualify themselves from the decision-making process.”

What are “Improper Motives”? The state supreme court has identified three major categories of bias: personal interest, prejudgment of issues, and partiality.

• “Personal interest” means that the decision-maker stands to gain or lose from the decision because of a monetary interest, property ownership, employment, or other sufficiently “entangling” interest.
  

• “Prejudgment of issues” means that a decision-maker is close minded, and has reached an inalterable conclusion, before hearing testimony.

• “Partiality” is the existence of hostility or favoritism.

What is an unfair hearing? If “biased” decision makers (with personal interest, prejudgment, or partiality) do not disqualify themselves, the hearing would not meet the “appearance of fairness.”

There is another aspect of “fairness.” By state statute, decision-makers are prohibited from “ex parte contacts” – in other words, “one-sided discussions” outside the formal hearing process – with project “proponents or opponents.” If they have such discussions, they are required to disclose the conversations, to place the substance of the communication on record, and to announce the substance of the communication at each hearing about the matter and to allow involved parties to rebut the substance. If these requirements are not met, the hearing would not meet the “appearance of fairness.”

When does “appearance of fairness” apply? This is a multipart answer.

(1) It applies only to “quasi-judicial” land use matters. That means that the decision-makers are applying general land use rules to a specific project. MRSC states:

• “The following types of land use matters meet this definition: subdivisions, preliminary plat approvals, conditional use permits, SEPA appeals, rezones of specific parcels of property, variances, and other types of discretionary zoning permits if a hearing must be held.

• The statutory doctrine does not apply to the following actions: adoption, amendment, or revision of comprehensive plans• adoption of area-wide zoning ordinances • adoption of area-wide zoning amendments • building permit denial.”

This means that there are stricter rules about, say, shoreline substantial development permits (quasi-judicial) than about amendment of a comprehensive plan (legislative).

(2) Appearance of fairness applies to council members, planning commissioners, hearing examiners, and other local decision-making bodies. It does not apply to planning staff, department heads, or other officials who are not part of decision-making bodies.

(3) There is an exception for elections, although the scope of that exception hasn’t been tested. Candidates for office may talk about quasi-judicial matters and may accept campaign contributions. As the MRSC report notes, however:

“For instance, although RCW 42.36.040 permits candidates to express opinions on pending quasi-judicial matters, if opinion statements made during a campaign reflect an intractable attitude or bias that continues into the post-election hearing process, a court might determine that the right to a fair hearing has been impaired, even if no statutes were violated.”

(4) The statutory part of the doctrine – the prohibition against ex parte contacts – only applies once an application has been submitted. The more general prohibition against bias, however, would not be subject to the same time constraints.

So, hypothetically speaking:

Say a candidate for office talked to public officials about a quasi-judicial matter during the campaign. If the candidate is elected and becomes a decision-maker on the matter, campaign speech would not violate the appearance of fairness statute. The open question would be whether those discussions reflected an “intractable attitude or bias” in favor of or against the project. If so, the right to a fair hearing might have been violated.

Say that an elected official proposes a resolution in support of a project before a hearing has been held on the project. That action could show “prejudgment” or “partiality,” and the official may need to disqualify himself from the vote in order to avoid an appearance of fairness violation.

Say that no application has been submitted yet, but there is a significant land use issue that the whole community knows about and has started to debate. Because no application has been submitted, can’t decision-makers talk to anybody they want to and attend any information sessions that they want to?

Until the application has been submitted, there would be no violation of the prohibition against “ex parte contacts.” So decision-makers would not have to disclose their discussions, or their attendance at meetings, under the “ex parte contacts” part of the law.

The larger issue, though, is whether decision-makers will be accused of having made up their minds under the “bias” tests. When information relating to all sides of a project is presented, perhaps prejudgment or partiality would not be a problem. On the other hand, what if one side did a better job than the other? What if the decision-maker asks a question, or is overheard making a statement, that is perceived as showing bias?

Under these circumstances, I don’t envy decision-makers who are weighing their desire to interact with constituents against the state law mandate that they must not decide about projects before formal hearings are held.

*All quotes are from the MRSC Report.

Zombie Laws

When did our current recession start? 1991? 1999? Maybe as recently as 2005?

Why, don’t be silly, you’re thinking. When you type that question into Google, the earliest answer that comes up is December 2007 – the official date established by the National Bureau of Economic Research (and a date contested by Obama-haters, since that would mean that he didn’t cause the recession). But let’s go with the December 2007 date, because earlier is better for giving the County Council’s “permit extension ordinances” the benefit of the doubt.

Based on the “extraordinary conditions of the current economic market,” the Whatcom County Council approved two ordinances – one in May 2010 and one in December 2010 – allowing project applications that would otherwise expire to be extended. (Here are links to the ordinances – May and December.)

So that would mean that applications that were submitted from, say, December 2007 on would get a little special treatment to help out developers and property owners hurt by the recession. That was all that the County was trying to do. Right?

Maybe a couple of stories about the applicants who got a “hand up” from the permit extension ordinances will be the best way to answer that question.

And so, with apologies to Laura Ingalls Wilder, let’s look at:

1. The Little Industrial Development in the Big Woods

Right around August 15, 2005, attorney Jack Swanson submitted four applications on behalf of several clients, including Gold Star and Valley View Properties. In response to a public records request, the County provided all four as examples of applications that were extended under the permit extension ordinances.

We’ll focus on just one of those applications, Valley View Properties’ “Binding Site Plan” for a commercial subdivision. For the truly nerdy among us, a link to the application is here (large file). An extra page that I inadvertently left out of the scan is here.

The application proposed the development of a 15-lot commercial subdivision on 35 acres of "undeveloped forest" with wetlands. The proposed uses were ""all permitted uses allowed in the Gateway Industrial zoning district,” which includes freight terminals, warehousing, and light industry.

The alert reader will spot a problem right away: the “Gateway Industrial” zoning district, and the County’s decision to allow industrial zoning in rural areas like this project site, was among the problems that led the Supreme Court to find that the County’s Comprehensive Plan didn’t comply with the Growth Management Act.

That’s just one of the reasons that the August, 2005 application date is important.

In Washington, projects get “vested rights” on the date that an application is submitted. That means that the laws in effect on the date of the application determine what can happen on the ground. That’s fine, as long as development occurs pretty close to the application date. But when, as here, development doesn’t occur right away, strange things start to happen.

Old laws come back to life.

Yes, zombie laws lurk throughout Whatcom County. These are laws that are no longer on the books because they’re bad laws. They allow development in or too close to wetlands. They allow urban uses in rural areas. They don’t protect fish, or drinking water, or the people who live in Whatcom County. But they are undead because they cling to old applications, feeding off the future and ensuring that the bad old days live on forever.

This particular application claims protection from at least three zombie laws:

• It claims to “vest” the uses that were allowed under the old zoning.

• It claims vested rights before the County adopted a critical areas ordinance that protects wetlands based on science – in fact, the application went in just a month before the County’s current critical areas law was passed, on September 13, 2005.

• And it claims vested rights under a land division ordinance that the Council adopted in 2000 – back when Marlene Dawson was Chair. The good ol’ days, indeed.

One application, three zombie laws! A pretty good ratio.

So it looks like that old 2005 application expired on November 3, 2009. At least, that’s what Jack Swanson thought when he applied for a permit extension under the Council’s “economic hardship” ordinance. The application for an extension went in on July 19, 2010, and the county decided to extend the application 2 years from July 20, 2010, to July 20, 2012. All that Jack had to do was to sign a “declaration” saying that “the work authorized . . . will be delayed as a result of adverse market conditions and/or the inability to secure financing.”

Now, nobody needs to write in to say that I’m picking on Jack Swanson. As a lawyer, he’s an advocate, and he’s taking care of his client. That’s his job. But it’s not the County Council’s job. The Council’s job is to take care of the rest of us—

--and that includes making sure that our health, safety, and welfare isn’t jeopardized by zombie laws.

For those who shrug their shoulders at the thought of industrial development in a rural area, perhaps drinking water is a more compelling issue. So let’s move on to:

2. The Little Houses on the Shore of Lake Whatcom

On September 28, 1999, Billboard’s top song was “Unpretty” by TLC. Fittingly, that’s the date that applications were submitted for “North Shores Estate,” a 28-unit housing development in the Lake Whatcom watershed.

“North Shores Estates” actually consists of seven “back-to-back” short plats. A “short plat” application creates four or fewer lots. It’s easier to get short plats approved than long plats (five or more lots). So applicants like the loophole of being able to pretend that their larger developments are “short plats,” even when the development – like this one – is far from “short.”

“North Shore Estates” is located within a "Suburban Enclave", another rural land use designation that the Supreme Court found to be noncompliant with the Growth Management Act. Its 28 lots range in size from 1.02 acres to 2.49 acres.

At the time of the application, our current critical areas ordinance, which is based on “Best Available Science” and requires wetland protection, was not in effect. Roads and building sites are planned within zero to ten feet of wetlands, which of course will not protect the wetlands.

But there’s more. These applications were submitted less than one month before the County adopted restrictions on seasonal clearing in the watershed. So road building, clearing, and grading for the development of these 28 watershed lots could occur at any time, including the rainy season, allowing additional runoff into Lake Whatcom.

What if those applications had expired, rather than being extended? The applicant would have to apply under current standards. That would mean five-acre lots, not one – to two-and-a-half acre lots. That would mean wetland protection and seasonal clearing restrictions.

These aren’t the only stories. The longest, most drawn-out application of the bunch might be called “Little Condos on the Golf Course.” I spent several frustrating hours going through three boxes of records pulled out of the recesses of Planning and Development Services, trying to figure out what the heck was going on with a golf course development in Point Roberts. In its response to the public records request, this is one of the applications that the County said had been extended under the 2010 ordinances.

That application was first submitted in 1987, and no, that’s not a typo. 1987. Back before most of my college students were alive. It supposedly vested in 1991. A letter in the file showed that, by the mid-1990s, planners were getting frustrated that this application had hung around for so long.

And it’s still with us.

I have no idea how anybody could know what conditions apply to the project, based on the state of the files – and I couldn’t find out whether the applications had, indeed, been extended under the 2010 ordinance. I did see applications for 63 condo units, submitted in 2011, and presumably relying on “vested” rights from 1991.

So – why did the County Council extend these old applications, and many more? Was it really a response to the economic crisis? Well, you be the judge. Take into account this statement in the December ordinance: “This ordinance shall not remove the vested permit expiration timeframe calculation for permits already granted a one-time economic hardship extension under the previous interim permit extension ordinance.”

Here’s what that convoluted sentence means. The previous ordinance, approved in May, had actually allowed expired permits to be extended. After an outcry about the egregiousness of a law that claimed the power to revive null permits, the Council didn’t try to revive expired zombie permits in the December ordinance. But that vesting provision made sure that the zombie permits would survive, and that zombie laws would continue to govern our county.

Neither the Council nor the public had any information about how many permits would be extended, where they were located, or what the environmental impacts of extending these permits would be. These are all issues raised by David Stalheim, yes, Get Whatcom Planning’s own David Stalheim, in a petition to the Growth Management Hearings Board, challenging the permit extension ordinance.

To be frank, I told him not to do it. He was already spending all of his nights and weekends on the successful Ferndale Urban Growth Area petition, and doing absurd amounts of work to record the planning and legal problems with the Rural Element. But, as usual, he didn’t listen to me, and I’m glad.

For those who might be interested, the brief that he submitted to the Board on Monday is here. Win or lose, it tells a story that needs to be told. It’s the story of the zombie applications that keep the zombie laws alive to feed on the living – us, our kids, our drinking water, our shorelines, our fish and wildlife.

All food for zombie laws.

The Die Is Cast

Not with a bang, but with a whimper, the County Council approved the Rural Element.

There was a public hearing, which Council Chair Sam Crawford stressed, most emphatically, could only include comments on the revisions since the last public hearing. Like the public is supposed to know what that did and did not include, within the sea of red ink that is now the Comprehensive Plan and Zoning Code.

(Of course, the Council itself got an additional 42-day extension from its extended deadline to work on any darn thing it wanted to, and the County sent out information on a topic unrelated to the public hearing a few days ago. But as I pointed out in a previous blog, it's the little people who must be carefully restrained by procedure. The Council is above all that.)

After a few brave souls testified, in spite of the limitations and the air of inevitability that hung over the room, Kathy Kershner moved to approve. She pointed out that the Council has worked very hard. "This is not perfect," but she felt good about approving it.

Barbara Brenner said that she was not part of the problem. She knows how she lives, and she likes how she lives. Calling the growth that has developed in the County "sprawl" is disrespectful. She believes that this plan represents such a decrease in density [we don't, but more on that later] that we all need to come together on it.

Carl Weimer stated that he would not vote for it. He has viewed it all along as an enormous waste of time and taxpayer money, since many issues will have to be revisited. Those issues include agricultural buffers, rural lot sizes, and increased pavement in the Lake Whatcom watershed. (He had more on his list, but I didn't get it all.)

Ken Mann thanked staff and the Council for working so hard. He said that he voted against the Rural Element when he was on the Planning Commission because he thought it was too restrictive, and he'd vote against it this time because it went too far the other way.

Bill Knutzen, Tony Larson, and Sam Crawford didn't say anything -- just voted "yes." It was a 5-2 vote. The entire discussion might have taken ten minutes.

On to the next stage.

Whatcom County Goes Down In Flames Before the State Supreme Court

In a 6-1 decision that came out on Friday (Whatcom County Fire District No. 21 v. Birch Point Village; click here to read the decision), the Washington Supreme Court found that Whatcom County's "concurrency" requirement means just what it says. The County's decision not to apply its own law to development permits was "clear error."

Let's step back for a minute and talk about concurrency. "Concurrency" is the concept that adequate services should be available at the time that development occurs, or within a reasonable time thereafter. In Washington, a "reasonable" time is six years.

That sounds rational, right? And not only is concurrency rational, but it's one of the goals of the Growth Management Act. Counties are supposed to want to make sure that services are available for their citizens.

Whatcom County currently requires "concurrent" water, sewer, transportation, and fire services. To show that adequate capacity is or will be available, water, sewer, and fire service providers have to give developers letters confirming that there's enough capacity for the project.

What if adequate capacity isn't available? Well, in theory, the project can't be approved until the service will be available. And that means that the unthinkable in Whatcom County becomes possible: developers might actually have to pay some of the basic infrastructure costs of their own projects. Because of concurrency.

(Detour: does that mean that the majority of the current County Council wants to get rid of concurrency -- or at least to "amend" it to the point where it doesn't do anything? You betcha. "Revising" concurrency is on the Council's agenda for this year. Here are three links to the Herald's coverage of Kathy Kershner's concurrency amendment initiative: Link 1; Link 2; Link 3. The Council is already proposing to eliminate concurrency policies in its revision of the Comprehensive Plan, up for final approval on Tuesday. See the proposed revision, page 8, Policy 2EE3: link here.)

Back to the Supreme Court, which drily noted that "the Fire District may reasonably be thought to be in the best position to determine what level of fire protection service is adequate and whether it is capable of providing that level of service." Fire District No. 21 decided that it could not provide adequate service to three projects and refused to issue letters to the developers.

The County's Hearing Examiner concluded that the Fire District was wrong and that it was "more likely than not" that the Fire District had enough money to pay for adequate service. Besides, the County's Plan said that adequate service was available, so it must be true. (This is a paraphrase, obviously -- the Supreme Court quotes the Hearing Examiner on page 2 of the decision.) The County Council upheld the Hearing Examiner, as usual. And then the case went to court.

The Supreme Court found two problems with the Hearing Examiner's reasoning. First, the County's own Code requires a letter from fire service providers, so the County couldn't approve the projects without such a letter. Second, the County's plan may say that there's money available for necessary fire district improvements, but the plan did not, in fact, provide for the funding of these requirements.

The Court just wasn't convinced by a claim that "taxes paid by a growing population" would provide sufficient money. It didn't believe that this simple statement constituted adequate capital facilities planning. (This is on page 5 of the decision.)

And that takes us to the larger problem. Unlike the Supreme Court, a lot of people in Whatcom County -- including those in leadership positions -- seem to believe that "taxes from a growing population" will magically take care of the costs of growth. Unfortunately, it just isn't true, and we've already seen the results: growth subsidized by County taxpayers, and service needs that the County just can't pay for.

So this isn't just a case about the Fire District and service letters. It's a case about how Whatcom County plans for growth.

The County could respond in a couple of ways.

It could say "Let's do real planning and budgeting for the costs of new services, and let's figure out the costs of new growth, and let's make sure that new growth pays a fair share of its costs."

Or it could say "Let's get rid of concurrency -- then we don't have to worry about whether services will be available, or how we'll pay for them. "

If you don't think that the second option is a rational, adult approach to planning for the future, you'll need to pay attention to the County Council this year. And to the three County Council election races that will be decided in November.

UPDATE:  Jean won't let me SPAM Jack Petree off the blog.  So, instead, I offer you this image.  Kinda tasty, huh?

Smack!

Sometimes good things come in the mail.

One of the pending cases I have before the Growth Management Hearings Board asks whether the County needs to consider the environment and Best Available Science when adopting new development regulations. 

In order to demonstrate the impact of the county's ordinance, I sought to supplement the record with additional information to assist the board in reaching its decision.  Information like:

• the county's Best Available Science report,
• back-to-back short plat applications in Lake Whatcom watershed filed in 1999, and
• Gold Star's application for short plats and binding site plans in areas determined non-compliant with the Growth Management Act.

Whatcom County objected to this information being added to the record.  The Board sided with common sense.  In the words of the Board:

"The Board's role is to determine local jurisdictions' compliance with the GMA.  Implementation of GMA-related ordinances is ultimately the test of how well the ordinance upholds the GMA.  The short plat information may show the Board the implementation effects under former and current crtical areas ordinances."

Oh, there is so much information that I could share about implementation. 

Ferndale UGA: Round 3

In response to our successful challenge of the Ferndale UGA expansion, Ferndale and Whatcom County are undertaking a process to address the recent Growth Management Hearings Board decision.  The Hearings Board set a compliance deadline of August 8, 2011.

UPDATE:  The City of Ferndale has put a page together on their UGA review.  Click here. 

What do you think it will take for them to consider placing the UGA where it does less harm to sensitive watersheds, agricultural land, or critical areas?

What do you think it will take for them to identify the most efficient and effective places to extend public facilities and services, without diminishing levels of service below established minimums?

What do you think it will take to size the UGA based on the adopted densities in the plan, and to adopt mechanisms that ensure those densities are achieved?

As you can guess, what I have read from the city (Bellingham Herald link) and the county (Ferndale page) fails to meet these expectations. 

I know that the city can do it right (not sure about the county council).  I'm hoping that concerns are addressed in the process, or we will be back in front of the Hearings Board again.    

The Environment Matters:

The first city staff report (Bellingham Herald link) shows alternatives UGA proposals, but fails to discuss any environmental factors that might influence the choices.  The area to the north (Vista Malloy) includes the upper parts of the Drayton Harbor Watershed, which due to water quality problems, has been declared a Shellfish Protection District.  The area to the west is within the Birch Bay Watershed, also declared a Shellfish Protection District.

·         If there are viable alternatives, should growth be directed away from impaired watersheds and water bodies?  If the desired densities are used based on real growth projections, how much less of an impact into these watersheds would be necessary?

·         Whatcom County has special stormwater standards and financing mechanisms for Birch Bay and Drayton Harbor.  What are the city standards, and are they equal or better? Show us those standards. 

Why doesn't the city and county show the mapped environmental resources on alternatives before decisions are made?  Here is a simple map that shows watersheds and the proposed Vista Malloy addition to the UGA. 
Capital Facilities:

Reportedly, the city has now completed updated public facility and service plans that cover the planning period and all urban facilities and services, including fire.  Unfortunately, the staff report or web page of the city and county don't identify where this information can be obtained.  The choice of urban growth boundaries should be dictated also by the efficient delivery of public facilities and services without service levels falling below locally established minimums.

Density Matters:

The Hearings Board found that the expansion of the Ferndale UGA was internally inconsistent with the comprehensive plan.  The size of the urban growth area is directly related to how many dwellings per net acre are planned.  The comprehensive plan expects that Ferndale plan at densities averaging five to ten units per net acre.  The current analysis continues to size the urban growth area at less than five units per acre. 

The comprehensive plan says "Ensure that cities have adopted mechanisms which will encourage densities at desired levels."  In a separate part of the Board's decision, they note that the term "ensure" is stronger than the term "should" or "encourage".  The question is whether at the time the County authorizes a UGA expansion it had "ensured" that the city has adopted mechanisms which will encourage densities at the desired levels.

To be fair, I think Ferndale is making great progress in this area.  The city rightfully boasted several measures that they have taken over the past several years to ensure that densities do occur at higher levels.  But, they have not extended those requirements to the lower density, single family zones -- exactly the sprawl creating zones that will cause further urban expansion if the city (and county) don't adopt measures to "ensure" that densities occur at desired levels. 

Ten or twenty years from now, when another round of expansions into our resource lands are proposed, these stands on density and choices of where to grow will matter. 

I trust that Ferndale will help Get Whatcom Planning by making this plan right this time.  Take the time to do it right so resources aren't wasted.  Check in with the City and County to see if they have any updated information as they go through this review process.