About one week ago the Western Washington Growth Management Hearings Board found Whatcom County's Rural Planning invalid. At the risk of punditry what follows is my take on the various aspects of that ruling.
Background
The Hearings Board previously ruled the County rural plan invalid about a year ago digesting-lamirds-wonky-long-and-local. This latest ruling is a follow up ruling on the County's latest effort to comply with the Growth Management Act.
Agreements Reached
First of all only Hirst and Futurewise appealed during this round. The appealing parties agreed that on numerous issues previously found invalid or in error that the County had made changes that satisfied the petitioners. Those issues were:
1) Several policies related to how limited areas of more intense rural development (LAMIRD) boundaries would be drawn.
2) Eliza Island would no longer be treated as a LAMIRD
3) The LARMIRD boundaries for Emerald Lake and Van Wyck were properly delineated.
4) Rural Business was properly defined.
5) The county consulted with fire districts and water districts.
Not all bad. Agreement was and is possible. Hence the Hearings Board ruled these problem areas are now compliant without further review.
The List
What follows is a list of issues the Hearings Board ruled on with very brief summary and occasional shooting from the hip commentary from the pundit.
Structure and Narrative
Whatcom County won on this issue. Trying to understand this argument hurt my head, but the short answer is: regardless of how the rural plan is structured in its presentation and how the narrative is written, the Hearings Board is OK with it. I think the big issue is that the way the rural plan is written it can confuse people. There is also concern that minor zoning changes in the future could get sideways with the plan.
Population Allocation
Whatcom County won on this issue. The County has for a long time had excess growth capacity within the rural areas of the county because of past zoning and subdivision rules 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. There is clear evidence that rural growth has been exceeding projected population growth. There is some disagreement about how excessive the rural growth has been and how it will proceed.
The Hearings Board previously ruled that this issue must be addressed. This was a precedent setting as it has been an over looked issue that could be described as allowing rural residential sprawl. That is large swaths of 5 acre residential development.
Whatcom County added language to the plan that rural growth rates will be monitored and adjustments will be made depending the results of said monitoring. There are no specifics as to just what the county will do in the event of rural growth rate exceeding the rate the county planned for, but for the time being the Hearings Board was satisfied that the County is now in compliance. Depending on the growth rates in the rural area this issue may be revisited another day.
Variety of Densities
The County lost on this issue. Rural areas of Whatcom County outside the forestry zones and agricultural zones are mostly zone for one home per 5 acres with the scattered pockets of rural villages and LAMIRDs as well as odd ball suburban development neighborhoods created before the Growth Management Act. The County does have some areas zoned one home per 10 acres. However, there is no guiding language as to why an area would be one home per 10 acres versus one home per 5 acres. It seems random and the Board ruled against the county.
The solution for the County will be to figure out what the difference between R10 and R5 zoning criteria and spell it out.
Lot Clustering
The County lost on this issue.
This issue is hideously complicated and can lead to all sorts of good and all sorts of problems. Above I noted that the County won on the issue of cross referencing. In reading the Hearings Board decision, it appears to me that the cross referencing may be causing lots of confusion and the issue is further complicated by the Board's reliance on a cluster provision case from Kitsap County.
Without going into too much detail, I think the County could revisit this and clarify the various area cluster provisions and the motivation behind those provisions. In doing that exercise the county may find some adjustment is warranted such that clustering be mandatory in more areas and dropped entirely in other areas. That said, I can not help but think that the issue confused the Hearings Board and a Kitsap County type of solution as expressed by the Board would be a poor solution for Whatcom County.
Visual Compatibility
Whatcom County won.
Chuckanut Wildlife Corridor
The County won on this issue. The reason for the win this time versus the loss previously is I believe the County simply did a better job arguing this issue. And at the risk of offending, I considered this issue as a non issue. The County growth plans allow for nearly no development in this corridor and have very strong language in the code to protect wildlife in this area from the very little remaining development that can take place in the corridor. Part of my defense of the county on this issue is that too much doom and gloom is directed at the County on environmental issues. While this issue under GMA was being argued the County is actively considering the creation of an 8,000 acre park within the corridor with a strong wild land component.
Lake Whatcom
The lost on this issue. First I think some credit should be given the county on this last submittal in that the county further reduced the potential lot creation in the watershed. In this regard there is only a limited bit more the county can do.
Where the county is having problems is that they have been very slow at adopting new stormwater rules for development in the watershed that will satisfy the Washington State Department of Ecology. My own view of the rules that are being worked on is that the changes needed to satisfy Ecology from the existing rules already in place are minor. Match the Ecology recommendations and be done with it.
The above said, I found the ruling fascinating in that the Hearings Board is willing to rule against the county on this issue and Ecology has taken no action besides advisory. And back to the all doom and gloom complaint. It should be noted that the county is very seriously considering creating an 8,000 acre plus park in the watershed that will preclude nearly 20 miles of new logging road and greatly reduce the amount forest clearing that will take place in the watershed. And does Ecology provide any credit for this action by the County? No. Go figure.
Groundwater Protection
No decision was made on this issue as there is another case specific to this pending.
LAMIRDs
County sort of lost. As noted there was agreement on some other LAMIRDs. The county pulled Fort Bellingham and North Bellingham out of LAMIRD status as they are adjacent to Bellingham. The areas were designated rural neighborhoods. The Hearings Board ruled the neighborhoods too large. The Board also ruled an isolated LARMIRD called Welcome as too large.
Two other LARMIRDs did not quite make the grade. The county mostly fixed the Smith/Guide LARMIRD, but put in a dog leg boundary that made little sense and can't be supported. Easy fix. The other was at Birch Bay/Valley View and involves a single lot that ought not be included Again a simple fix.
LAMIRD Policy Development Regulations
County lost big time. Of all the areas the county did poorly on it is on this issue. The county development regulations for these areas opened the door for much expanded intensity and size of business/industrial use in some LAMIRDs and was likely the main reason for the continued invalidity ruling. It is very unclear to me as to the county council motivation or understanding on this issue. It strikes me that some of the language is a direct favor to a very few potential development schemes.
Water Transmission Lines
Mild loss by County that is easily fixed with clarifying language.
Concluding Thoughts
The County Council is close. Most of the areas where the county lost really do not require big changes. The cluster issue really requires the hardest work as it is complicated and it is important that the petitioners and the Hearings Board understand this issue and the consequence of not doing cluster rules in the right manner.
The biggest change of direction will be to greatly narrow the wide open allowances in LAMIRDs. initial posturing comments but some council members suggested an appeal to the courts. One hopes that cooler thinking will prevail particularly given the narrowness of the differences. Does keeping business use wide open in rural areas worth tax payer money in court appeals that would almost be guaranteed to drag out for years all for a very select number of developers that will not be contributing to the defense of the County's position. I would note that the particular beneficiaries of the County's action did not even bother to intervene to assist in the case.
Background
The Hearings Board previously ruled the County rural plan invalid about a year ago digesting-lamirds-wonky-long-and-local. This latest ruling is a follow up ruling on the County's latest effort to comply with the Growth Management Act.
Agreements Reached
First of all only Hirst and Futurewise appealed during this round. The appealing parties agreed that on numerous issues previously found invalid or in error that the County had made changes that satisfied the petitioners. Those issues were:
1) Several policies related to how limited areas of more intense rural development (LAMIRD) boundaries would be drawn.
2) Eliza Island would no longer be treated as a LAMIRD
3) The LARMIRD boundaries for Emerald Lake and Van Wyck were properly delineated.
4) Rural Business was properly defined.
5) The county consulted with fire districts and water districts.
Not all bad. Agreement was and is possible. Hence the Hearings Board ruled these problem areas are now compliant without further review.
The List
What follows is a list of issues the Hearings Board ruled on with very brief summary and occasional shooting from the hip commentary from the pundit.
Structure and Narrative
Whatcom County won on this issue. Trying to understand this argument hurt my head, but the short answer is: regardless of how the rural plan is structured in its presentation and how the narrative is written, the Hearings Board is OK with it. I think the big issue is that the way the rural plan is written it can confuse people. There is also concern that minor zoning changes in the future could get sideways with the plan.
Population Allocation
Whatcom County won on this issue. The County has for a long time had excess growth capacity within the rural areas of the county because of past zoning and subdivision rules 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. There is clear evidence that rural growth has been exceeding projected population growth. There is some disagreement about how excessive the rural growth has been and how it will proceed.
The Hearings Board previously ruled that this issue must be addressed. This was a precedent setting as it has been an over looked issue that could be described as allowing rural residential sprawl. That is large swaths of 5 acre residential development.
Whatcom County added language to the plan that rural growth rates will be monitored and adjustments will be made depending the results of said monitoring. There are no specifics as to just what the county will do in the event of rural growth rate exceeding the rate the county planned for, but for the time being the Hearings Board was satisfied that the County is now in compliance. Depending on the growth rates in the rural area this issue may be revisited another day.
Variety of Densities
The County lost on this issue. Rural areas of Whatcom County outside the forestry zones and agricultural zones are mostly zone for one home per 5 acres with the scattered pockets of rural villages and LAMIRDs as well as odd ball suburban development neighborhoods created before the Growth Management Act. The County does have some areas zoned one home per 10 acres. However, there is no guiding language as to why an area would be one home per 10 acres versus one home per 5 acres. It seems random and the Board ruled against the county.
The solution for the County will be to figure out what the difference between R10 and R5 zoning criteria and spell it out.
Lot Clustering
The County lost on this issue.
This issue is hideously complicated and can lead to all sorts of good and all sorts of problems. Above I noted that the County won on the issue of cross referencing. In reading the Hearings Board decision, it appears to me that the cross referencing may be causing lots of confusion and the issue is further complicated by the Board's reliance on a cluster provision case from Kitsap County.
Without going into too much detail, I think the County could revisit this and clarify the various area cluster provisions and the motivation behind those provisions. In doing that exercise the county may find some adjustment is warranted such that clustering be mandatory in more areas and dropped entirely in other areas. That said, I can not help but think that the issue confused the Hearings Board and a Kitsap County type of solution as expressed by the Board would be a poor solution for Whatcom County.
Visual Compatibility
Whatcom County won.
Chuckanut Wildlife Corridor
The County won on this issue. The reason for the win this time versus the loss previously is I believe the County simply did a better job arguing this issue. And at the risk of offending, I considered this issue as a non issue. The County growth plans allow for nearly no development in this corridor and have very strong language in the code to protect wildlife in this area from the very little remaining development that can take place in the corridor. Part of my defense of the county on this issue is that too much doom and gloom is directed at the County on environmental issues. While this issue under GMA was being argued the County is actively considering the creation of an 8,000 acre park within the corridor with a strong wild land component.
Lake Whatcom
The lost on this issue. First I think some credit should be given the county on this last submittal in that the county further reduced the potential lot creation in the watershed. In this regard there is only a limited bit more the county can do.
Where the county is having problems is that they have been very slow at adopting new stormwater rules for development in the watershed that will satisfy the Washington State Department of Ecology. My own view of the rules that are being worked on is that the changes needed to satisfy Ecology from the existing rules already in place are minor. Match the Ecology recommendations and be done with it.
The above said, I found the ruling fascinating in that the Hearings Board is willing to rule against the county on this issue and Ecology has taken no action besides advisory. And back to the all doom and gloom complaint. It should be noted that the county is very seriously considering creating an 8,000 acre plus park in the watershed that will preclude nearly 20 miles of new logging road and greatly reduce the amount forest clearing that will take place in the watershed. And does Ecology provide any credit for this action by the County? No. Go figure.
Groundwater Protection
No decision was made on this issue as there is another case specific to this pending.
LAMIRDs
County sort of lost. As noted there was agreement on some other LAMIRDs. The county pulled Fort Bellingham and North Bellingham out of LAMIRD status as they are adjacent to Bellingham. The areas were designated rural neighborhoods. The Hearings Board ruled the neighborhoods too large. The Board also ruled an isolated LARMIRD called Welcome as too large.
Two other LARMIRDs did not quite make the grade. The county mostly fixed the Smith/Guide LARMIRD, but put in a dog leg boundary that made little sense and can't be supported. Easy fix. The other was at Birch Bay/Valley View and involves a single lot that ought not be included Again a simple fix.
LAMIRD Policy Development Regulations
County lost big time. Of all the areas the county did poorly on it is on this issue. The county development regulations for these areas opened the door for much expanded intensity and size of business/industrial use in some LAMIRDs and was likely the main reason for the continued invalidity ruling. It is very unclear to me as to the county council motivation or understanding on this issue. It strikes me that some of the language is a direct favor to a very few potential development schemes.
Water Transmission Lines
Mild loss by County that is easily fixed with clarifying language.
Concluding Thoughts
The County Council is close. Most of the areas where the county lost really do not require big changes. The cluster issue really requires the hardest work as it is complicated and it is important that the petitioners and the Hearings Board understand this issue and the consequence of not doing cluster rules in the right manner.
The biggest change of direction will be to greatly narrow the wide open allowances in LAMIRDs. initial posturing comments but some council members suggested an appeal to the courts. One hopes that cooler thinking will prevail particularly given the narrowness of the differences. Does keeping business use wide open in rural areas worth tax payer money in court appeals that would almost be guaranteed to drag out for years all for a very select number of developers that will not be contributing to the defense of the County's position. I would note that the particular beneficiaries of the County's action did not even bother to intervene to assist in the case.
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