Sunday, January 22, 2012

Digesting LAMIRDs (Wonky, Long and Local)

I have been digesting the Growth Management Hearing Board's ruling of invalidity on Whatcom County's rural planning http://www.gmhb.wa.gov/LoadDocument.aspx?did=2791. Its a long ruling and can only be loved by wonks. Perhaps this post can only be loved by wonks, but I will attempt to boil down the 177 page ruling. Wonky or not this digestive exercise has been very expensive to Whatcom County.

First invalidity means that the ordinance passed by the County Council last year is not valid. Second it is not as though everything the County Council passed was considered a violation of the State Growth Management Act (GMA); parts that were challenged were upheld. And lastly the challenge the County Council faced was inherited, but the County Council majority made changes to the original staff proposed plan that made the situation worse and then delved into making changes that had very little to do with the issue at hand.

A Little History

A couple of the major tenants of the GMA is to reduce sprawl and protect rural character among other things. After the act was passed it became clear that past growth planning had allowed lots of little and sometimes large scattered areas of development in rural areas. The lack of clarity on how to deal with these areas led to the passage of an amendment to the Gorwth Management Act in 1997 that laid out just how these pockets of more intense development in otherwise rural areas should be managed. Thus the creation of the term LAMIRDs (Limited Areas of More Intense Rural Development). Essentially LAMIRDs are areas that were already developed when the GMA passed in 1990. This created an odd situation in Whatcom County. Whatcom County had completed its rural planning per the GMA before the amendment became law. As such the county had not followed the amendment because the amendment did not exist. The County could have gone back and redid the LAMIRDs but chose not to.

Seven years passed and the county was required to update its rural planning per the GMA. The County administration's position was that because Whatcom County's 1997 rural plan had been upheld as valid, the County did not have to redo the LAMIRDs. So in 2004 the County Council passed a rural update without doing the LAMIRDs. The County had taken on a few LAMIRDs on a case by case basis and had greatly reduced some of the more egregiously large LAMIRDs. But the analyzing every LAMIRD for compliance with the GMA was challenged to the Hearings Board by Futurewise, a citizen GMA advocacy group. This challenge took some time. The Hearings Board rule for Futurewise. That ruling was challenged in Superior Court by a developer. The developer won. Futurewise challenged the ruling to the State Court of Appeals and won. The developer challenged the ruling to State Supreme Court. Futurewise won again.

Hence, Whatcom County started the process of reviewing all of the many LAMIRDs. A painful process of reviewing the outer boundaries of small unincorporated towns and hamlets and clumps of development scattered all over the rural areas of Whatcom County. Finally in 2010 after the County Council altered the staff recommendations substantially, the council passed a new rural plan. The new rural plan was challenged by Futurewise, the City of Bellingham, a group of local citizens and a property owner. On the basis of this challenge, the Board ruled the plan invalid.

Where the Council Went Sideways on the GMA

At the beginning of 2010 the County Council had in hand a complete rural plan that had been developed by the County Planning staff and many public hearings before the County Planning Commission. The County Council majority decided they did not like this plan and began their own hard work (along with County staff) to push the envelope in favor of less reduction in the size of the LAMIRDs. A tough situation as properties that developed over the last 20 years outside of the 1990 developed area boundary would become non conforming lots - a headache for a variety of reasons particularly for businesses.

Overall when it came to the areas of each the approximately 30 LAMIRDs the county did pretty well. A fair number of the LAMIRDs went unchallenged. Six of the challenged LAMIRDs were found by the Board as compliant with GMA. A few of the non compliant LAMIRDs will require very modest change to become compliant.

The LAMIRDs that were most problematic were the string of urban like business and industrial centers along the north-south highway between Bellingham and Lynden. The County Council left these areas too large. This particular development pattern is a formula for creating traffic problems and has very little to do with rural needs.

Another LAMIRD problem area were the LAMIRDs adjacent to Bellingham. Half developed areas become difficult areas to plan and expand urban growth and hence LAMIRDs are not looked well upon in these areas. Its a bit of a gray area in the GMA and the specifics are very complex and perhaps the County did not get complex enough to support the continued level of development in this semi suburb areas adjacent to Bellingham.

Where the County Council got really sideways was that they delved into areas that went beyond LAMIRDs. They created entire new rural zones and made some substantial changes to development rules in rural areas for businesses and industry. These new added ones and regulations that allow for expanded use within some the LAMIRDs well beyond what is currently allowed and well beyond what can reasonably considered rural.

Ruling on LAMIRDs

As noted above, many of the County LAMIRDs went unchallenged. Futurewise and citizen groups accepted that many of the LARMIRDs were well done. The hamlets of Glacier, Acme and many other scattered areas were well done. Several challenged areas the board found were in compliance. These included Sudden Valley, Cain Lake, Kendall, Nugents Corner and Point Roberts. A win for the County. It should be pointed out that the County had previously been through the equivalent of a LAMIRD review of Sudden Valley, Kendall and Point Roberts on a case by case basis.

The County also prevailed at Governors Point. Governors Point is a rocky peninsula south of Bellingham that the Council removed from more intensive development. Initially the Council majority wanted to keep this area in but in a rare show of interest in planning the County Executive stated he would veto the plan if Governors Point was left in.

The County lost on some minor boundary issues on a few LAMIRDs. And as noted above has to go back to the drawing board on the LARMIRDs around the periphery of Bellingham and out along the State Highway between Bellingahm and Lynden.

Ruling on Development Regulations and Zoning

Some of the rulings the County lost on and won on are minor technical issues of not a lot of consequence to the landscape. But where the County took a real beating was on the new zones and development regulations. The ruling on these matters can be summed with the following: "Failed to contain or control rural development", "Failed to reduce inappropriate conversion", Failed to protect visual compatibility". Creating zoning and development rules that made it wide open to build large commercial centers in rural areas did not sit well with the Board.

Ruling on Population in LAMIRDs and Rural Areas

The rural plan was also challenged on lack of consistency on population growth planning consistency and on impacts to sensitive areas.

Counties are required under GMA to establish plans consistent with future population growth. Whatcom County set a very lofty policy of trying to send most growth into urban areas in order to protect rural character and resource lands. This policy is very in line with the GMA. And it is a very hard policy to achieve much headway on because of past zoning that allowed thousands of lots to be created in the rural areas far beyond the projected growth policy the county has established for rural areas. By pushing so hard to keep zoning that allows larger LAMIRDs than allowed along with adding more liberal development regulations, the County opened up this issue to challenge. The challenge essentially pointed out in clear terms that the County's actions of allowing large LAMIRDs and the new added more intensive development zones were in direct conflict with County policy for rural areas - the County rural plan is not consistent with the zoning and development regulations that is passed. 

This part of the ruling is precedent setting. It is not entirely clear to me how the County will resolve this part of the ruling. But what does seem clear is that the ruling justifies a strict confining of LAMIRDs as well as not allowing other schemes to allow more rural development beyond what has already been created by thousands of rural lots created under very liberal subdivision rules that were in effect up until 2003.

Lake Whatcom

Lake Whatcom is the drinking water source for the City of Bellingham as well as a fair number of non city residences served by a water district that utilizes the lake and areas outside the city that are served by City water. Over a very long time period the City of Bellingham was not particularly protective of its drinking water source and allowed significant development to take place within its drinking watershed to the point that the lake has become degraded. And yes, I say the City of Bellingham because the City urbanized the northern end of the lake and relied heavily on others to protect the rest of their own drinking water source - a really bad idea and one most cities would never do. Decades of bad management of the watershed that both the current city and county governments have inherited.

The board ruled that the rural zoning the County applied to the Lake Whatcom watershed would fail to protect the lake. The current Council however, should be credited with the fact that despite the zoning passed they have maintained a subdivision moratorium in the watershed for 6 years in recognition that the lake is in trouble. This section of the ruling may be of very little consequence given the Council's consistent position of reducing potential development in the watershed since the mid 2000s. But that said the recognition the board gave to a sensitive environment should be a consideration for development in sensitive environments elsewhere, be it drinking water protection or some other factor.

Chuckanut

The Chuckanut Corridor is a significant wildlife habitat corridor that the County has identified as an area that needs to be protected. It is a corridor of forested low mountains that extends from the Northwest Cascades to the shores of the Salish Sea.

The zoning area in question within this corridor was relatively insignificant, but like the Lake Whatcom issue, the ruling indicates that the Board is persuaded by the need to protect particularly sensitive areas. And in this case the area that is considered sensitive was identified as so by Whatcom County.

In part the County won a significant ruling in their favor on Chuckanut. The County chose to leave out the Governors Point area from LAMIRD designation. This was appealed by the developer of the point and the Board upheld the County's position. A very big change in direction. And the development potential at the point would have significant impacts.

Final Notes

I wrote this up primarily as an exercise to digest what this ruling by the Growth Management Hearings Board meant. It is a challenging ruling to understand and cannot be readily summed up.

It should be noted that I am Board Member of the Whatcom County Chapter of Futurewise one of the appellants in the case. However, my involvement in the appeal was very limited. However, I did testify to the council prior to their decision regarding the increase of intensity of commercial and industrial development and reduction of buffers between LAMIRDs and agricultural land and suggested they follow a more simple solution for Lake Whatcom that did not confuse everyone so much.

The very hard work of individual citizens on their free volunteer time is amazing to me. They did a remarkable job ensuring that their local government follows state law. What is even more remarkable is that their opponent - their own local government spent likely somewhere in the order of $250,000 in staff time rewriting sections of the rural plan that for the most part got shot down. And then followed that with a $40,000 contract with an outside attorney in a case that they lost.

Much criticism will be directed at the County Council on this. Some may be fair. But perhaps to be fair the Council members are not professional planners. The County Executive could have put the brakes on the amateur planning the Council was dragging planning staff through. But he did not and in fact allowed an environment where the head of planning resigned. Likewise the County Prosecutor may need to put more effort into assuring that Council gets better legal advice and when the Council deviates from that advice make it clear that they are on their own. The passivity of the professionals does not serve the Council or the public well.

2 comments:

David "Outside Man" Stalheim said...

Nice coverage, Dan. I just finished reading the full decision on Saturday. I found it helpful to understand all points in the decision. What is frustrating is that the County staff or council never bothered to read or respond to our testimony. They treat public process as nothing more than providing the public with information distributed through emails or the Internet. Public process needs to also consider that input, particularly when input is directed at legal GMA issues.

I think the road map is clear. I hope that wiser and more practical minds will get together and work through the next stage.

Dan McShane said...

Thank you David. What I remember most about my own testimony on the expanded commercial and industrial use was council members shaking their heads as though I was wrong and then during deliberations syaing my testimony was not accurate. I came away thinking they had no idea what they were doing and had a very poor understanding of their own ordinance. I have a theory as to why that may be so but will leave that for another day as it is only a theory.
That said, thank you for your very hard work on this issue. It was a nasty difficult task as a planner and the same as a citizen.