Wednesday, December 21, 2011

David Versus Whatcom County - Wonky

Typically, development permits must be completed within a certain time frame. Once a certain length of time passes, the application must be resubmitted if the permit did reach final approval. Otherwise a permit could be applied for and then the applicant could do no work on the application for 10 years or 20 years or longer and then show up to complete an application following regulations that are 10 years or older.

As a geologist working on geology hazard assessments and strormwater impacts, I can think of a variety of scenarios where extending permit application periods over a long time period is a bad idea. Indeed, a fair bit of the more difficult work I do are on lots that were created years ago with very little thought to the geology. Lots on steep slopes with difficult access. Lots along rivers that have migrating channels. Current development rules in most places now require a fair bit of thought before permits are granted so that dangerous or environmentally harmful development does not happen. One local Whatcomcentric example: prior to 2005 new lots could be created in alluvial fan hazard areas. The County passed regulations disallowing that in 2005. Another example: stormwater impacts are now better understood and new stormwater regulations have been developed to address the water quality impacts over the past 10 years throughout the state.

In 2010 the Whatcom County Council passed an ordinance that automatically granted extensions to permit applications that had not been finalized. The rationale for this action was economic hard times. However, the county never considered the environmental impact of granting the automatic extensions which granted extensions to applications that had originally been submitted over 5 years ago and in some cases in the 1990s and some, due to peculiarities that I do fully understand, that were submitted in the 1980s.

Prior to this ordinance, Whatcom County already had a permit extension process that worked on a case by case basis. And in fact the county did extend permits due to hardship, but in that process they could consider the hardship and consider the impacts of granting the extension. In some cases the county could grant the extension, but still require the development follow new wetland or stormwater rules.

A fair number of development project applications get submitted that are never completed. Hardship can be one cause. How that hardship happens can vary. Certainly the down turn in real estate and willingness of financial institutions to loan on real estate of late could be viewed as a hardship in some cases.

But I would suggest that there is another hardship that is often self inflicted. Over the past decade new wetland rules, stormwater rules, geology hazard rules, and shoreline rules have been adopted. It takes time and a lot of public process to develop new rules. And during that time a fair number of development applications get submitted in order to vest to the old rules before the new rules take effect. I have seen this as a consultant particularly on shoreline properties in counties that are updating shoreline rules. More often than not the change in the rules are minor, but the fear that no development will be allowed sometimes drives folks to put in applications when they would otherwise not be ready.

This automatic permit extension ordinance was appealed to Western Washington Growth Management Hearings Board by David Stalheim. The Board ruled the ordinance invalid in August 2011. Pretty direct. The Board primarily ruled against the county on the lack of environmental review because potentially harmful projects would be allowed to automatically move forward without any assessment of the impacts. New lots created on alluvial fans or in areas where stormwater is already causing harm or in locations that have since been deemed as rural, but the county took awhile to change the zoning as required by the Growth Management Act.

But the case is not over. The ordinance was ruled invalid, but before that ruling permit application extensions were allowed without any review of the environmental consequences including four that were processed after the ruling of invalidity. Hence, the Western Washington Growth Management Hearings Board has a tough decision - What to do about the fact that during the time before the ordinance was ruled invalid, permit applications were extended using what the Board considered an invalid ordinance?

I would suggest that this case should set an important precedent. That would be that permits that are approved under an ordinance that was ruled invalid should be likewise considered invalid. Not sure if the Hearings Board can navigate that legal path, but not doing so could set a very bad precedent: Counties could knowing pass bad ordinances and open the window for a rush of applications that then become vested under a regulation that was later determined to be illegal.

Appealing ordinances to the Growth Management Hearings Board is no small task. It is a challenging legal process and typically means taking on the legal staff of the County or City challenged and often other participants. David Stalheim has appealed three Whatcom County decisions (I joined him on one). Thus far he has prevailed on all his cases. He has proven to be a remarkable citizen advocate. I should add that Jean Melious has provided David assisstance and the late Dean Martin tracked down processed permits. 


Jonathan said...

Dan, thanks for sharing this.

Lilliquist said...

Here's the observation that completely won me over: "...could set a very bad precedent: Counties could knowing pass bad ordinances and open the window for a rush of applications that then become vested under a regulation that was later determined to be illegal." Any invitation to "game" the system should be intolerable.

David "Outside Man" Stalheim said...

Dan, thanks for reminding me that the county system already had a fair system built in. Permit extensions are fine, but they need to comply with any new standards. That provision is still in effect in Whatcom County.

For Michael, what also won the Board over were the 8 short plats in Lake Whatcom that don't have to abide by new wetland, land clearing or seasonal clearing restrictions.

The importance of this stuff is really huge. I am already researching information to be ready for the next wonky round.

Dan McShane said...

What I did not point out is that numerous other local governments did essentially the same thing. City of Bellingham also passed a permit extension ordinance that adds two years. And that ordinace did not have a SEPA review. Mr. Lilliquist voted against te ordinance.

Bob_Aegerter said...

I have always been bothered by the lenient permit extension rules. I have stood on both sides of the planning counter and appreciate the economic risks development entails and the unforeseen conditions that develop. I agree with David Stalheim that extensions should not exempt the project from new regulations.

Most new regulations have a stipulation that they do not take effect immediately protecting the property owner's investment in plans and environmental studies supporting an application.