The body of an attached letter to the Council from the self-styled "affected community" is reproduced here:
ATTACHMENT TO LETTER TO WHATCOM COUNTY COUNCIL
RE: AMENDMENT OF ORDINANCE 2009-071
The process to amend Ord. 2009-071 to adjust its major UGA reductions can be simple, expedient, and legally defensible. It is completely unnecessary to invest hundreds of hours of staff time and over a year of process on this matter. The County has full legal authority to revise the Urban Growth Area (UGA) boundaries in Ord. 2009-071 with a simple adjustment of certain assumptions, a public hearing, and a vote on an amending ordinance, all of which could be accomplished in a few months. The purpose of this attachment is to provide additional information, including citations to legal authority, on why this approach is legally correct.
County Has Broad Discretion Re Urban Growth Areas; Courts and Growth Boards Defer to County Decisions, Including County Decisions on the Land Market Supply Factor
The County has broad discretion in designating and revising UGAs. See RCW 36.70A.110(2) (“cities and counties have discretion in their comprehensive plans to make many choices about accommodating growth.”); RCW 36.70A.320(1) (comprehensive plans and development regulations “are presumed valid upon adoption.”); RCW 36.70A.320(2) (“burden…on the petitioner to demonstrate that any action taken by a…county or city is not in compliance with the requirements of [the GMA]”.); RCW 36.70A.3201 (see quotation of this GMA amendment from the Quadrant case, below).
Under RCW 36.70A.110, it is the county that has ultimate authority to decide on location and size of UGAs, as the Growth Boards have affirmed in numerous decisions including the October 13, 2008 Whatcom county decision. In 1997, the Legislature amended RCW 36.70A.110(2) and enacted a new section, RCW 36.70A.3201, to emphasize the broad discretion of local governments to make policy choices, based on local circumstances, within their assigned GMA roles, and the deference owed by the Growth Boards to these local policy choices. The Supreme Court, in Quadrant Corporation v. State Growth Management Hearings Board, 154 Wn.2d 224, 110 P.3d 1132 (2005), upholding a UGA decision by King County, stressed the broad authority of counties in making UGA decisions:
In 1997, the legislature took the unusual additional step of enacting into law its statement of intent in amending RCW 36.70A.320 to accord counties and cities planning under the GMA additional deference. See RCW 36.70A.3201. In amending RCW 36.70A.320(3) ... the legislature intends that the boards apply a more deferential standard of review to actions of counties and cities than the preponderance of the evidence standard provided for under existing law. In recognition of the broad range of discretion that may be exercised by counties and cities consistent with the requirements of this chapter, the legislature intends for the boards to grant deference to counties and cities in how they plan for growth, consistent with the requirements and goals of this chapter. Local comprehensive plans and development regulations require counties and cities to balance priorities and options for action in full consideration of local circumstances. The legislature finds that while this chapter requires local planning to take place within a framework of state goals and requirements, the ultimate burden and responsibility for planning, harmonizing the planning goals of this chapter, and implementing a county's or city's future rests with that community. Id. Id., 154 Wn.2d at 237 (emphasis in original).
In Thurston County v. Western Washington Growth Management Hearings Board, 164 Wn.2d, 329, 190 P.3d 38 (2008), the Supreme Court reaffirmed and expanded upon its holding in Quadrant. The Court held that “[o]nce a petitioner challenges the size of a county’s UGA, the county may explain whether the difference between supply and demand is due to a land market supply factor or other circumstances.” (Emphasis added.)
The Court went on to explain that if the county asserts that a land market supply factor was used in designating the challenged UGA, “[n]o bright-line rule regarding the reasonableness of a land market supply factor may be used by the GMHBs . . . Depending on local circumstances 15% may be reasonable in one county, while 40 percent may be reasonable in another.” The Court stressed that in determining whether a market supply factor is reasonable, “a board must recognize counties have great discretion in making choices about accommodating growth and the land market supply factor may be based on local circumstances.” The Court also held that “[a] comprehensive plan need not identify whether a market supply factor was employed in designating a UGA, so the Board’s finding that the comprehensive plan did not identify a market supply factor is not determinative of whether such a factor was used.” Id., 164 Wn.2d at 354, note 14.
The Thurston County case recognized that if a land market supply factor was not used as a basis for the UGA designation, the Board must take into account “local circumstances” and defer to “the County’s discretion in making choices to accommodate future growth.”
The Court also recognized that a county is not required to provide any justification in advance for a UGA designation related to an adjacent city where that city agrees upon the designation. “To require a county to justify its use of a land market supply factor is to presume the UGA designation is invalid and to place the burden on a county to justify its actions.” Id., 164 Wn.2d at 352. Only when an adjacent City disagrees with the County’s designation is the County obligated to “justify in writing” the UGA designation under RCW 36.70A.110(2). However, the requirement of written justification must be consistent with the deference granted to local decisions, the presumption of validity, and the challenger’s burden of demonstrating GMA noncompliance. It is clear from the Thurston County decision and other case law that reliance on a market supply factor established by the County, or a similar decision based on local circumstances, would receive substantial deference from the Growth Boards and courts, and any effort to overturn that decision would face a serious uphill battle.
Process of Amending UGAs May Be More Abbreviated When the Amendment is to Resolve an Appeal
The purpose of County amendments of the UGA designations of Ordinance 2009-071 would be “to resolve an appeal of a comprehensive plan filed with a growth management hearings board or with a court,” under RCW 36.70A.130(2)(b) which excepts such amendments from docketing and other process requirements. Docketing is not required and only “appropriate public participation” is required.
In Clark Revocable Living Trust v. City of Covington, Case No. 02-3-005 (September 27, 2002), 2002 WL 31549115 (Wash.Central Puget Sd.Growth Mgmt.Hrgs.Bd.), the Board ruled that amendments within the exception of RCW 36.70A.130(2)(b) were not subject to the normal process requirements: “The Legislature recognized that in these limited situations a jurisdiction will likely have to act quickly; thus, the full scope of the Act’s public participation requirements were narrowed.” The Board held that public participation requirements for such amendments are governed by section .130(2b) of the GMA and not sections .140, .390 or .035 and, thus, because “the City did make a ‘good faith’ effort to notify and inform the public as well as to take public comment before the passage of the Ordinance … , [t]he six days notice the City gave prior to the adoption of [the] Ordinance [was adequate].”
There Are Strong, Legally Defensible Reasons to Amend the UGAs
The County has good reasons to adjust the major UGA reductions of Ordinance 2009-071. The GMA requires that UGAs be large enough to “ensure…sufficient capacity of land suitable for development…to accommodate their allocated housing and employment growth, consistent with the twenty-year population forecast from [OFM].” RCW 36.70A.115. “Ensure” is the GMA’s most mandatory verb, meaning “to make sure or certain.” Moreover, both sections .110 and .115 were amended in 2009 to expand the uses that must be accommodated to serve the projected population growth to include not only “housing and employment,” but also “medical, governmental, educational, institutional, commercial, and industrial facilities related to such growth.” Id.
In Thurston County, the Supreme Court recognized that GMA’s only explicit requirement regarding the size of UGAs is that they be large enough to accommodate projected growth. RCW 36.70A.110 and .115. The Court indicated that GMA’s upper limits on the size of UGAs are implicit, not stated but inferred from GMA language.
As discussed above, GMA amendments and Supreme Court decisions emphasize that the County has broad discretion in making policy choices, based upon local circumstances, on the accommodation of growth, and that these policy choices are entitled to deference by the Growth Board. Local circumstances in Whatcom County provide abundant justification for adjustment of the major UGA reductions of Ordinance 2009-071.
As the County has recognized, it has a serious problem with rural development and the conversion of farmland to residential development. The County planned for only 6% rural growth in 1998. But the rural development rate turned out to be nearly 26% between 2000 and 2008. Given the largely irreversible impacts of such rural sprawl on agriculture, transportation congestion, and greenhouse gas emissions, the Council can reasonably conclude that the reductions of UGAs by Ordinance 2009-071 would be likely to further increase the already excessive rate of rural development. And the Council can reasonably make the policy choice, based on these local circumstances, that it is important to provide a cushion of available land within the UGAs to ensure that the rate of rural development will not increase but will decrease.
The City of Bellingham has recognized the shortage of land available for single-family residential development within the city. The state Department of Commerce (formerly CTED) and the Growth Boards long have recognized that if UGAs are too small, land prices and resulting housing prices will be too high. If residents must move to rural areas, not for life-style reasons, but to find affordable single-family housing, that is a problem. The Council can reasonably make the policy choice to provide more land in the City of Bellingham’s UGA so that residents will not have to choose rural sprawl to find affordable single-family homes close to the County’s primary employment center.
In addition, the smaller cities have raised other policy concerns that provide the County with additional justification for making adjustments to its UGA. For instance, the City of Ferndale disagrees with the extent and location of the UGA reductions by Ordinance 2009-071 because of inconsistency of such reductions with the City’s capital facilities planning. Similarly, the City of Blaine has emphasized the need to include West Blaine in the Blaine UGA in recognition of the County’s and City’s long-term planning and investment in infrastructure for urban-level development in West Blaine.
For all of these and other reasons, the County has ample justification to adjust the size of its UGA areas. Moreover, the UGA amendments proposed by the petitioners would not increase the size of the UGA as it existed for the decade before the November 24, 2009 adoption of Ordinance 2009-071. The proposed amendments would merely provide for a smaller reduction of the size of the UGA than that of Ordinance 2009-071.
For example, the proposed amendments of the Bellingham UGA to include a portion of Cordata North and restore the Yew Street UGA would only marginally increase the area of the County’s most tightly drawn UGA.
The amendment proposed by the City of Blaine, while keeping West Blaine in the Blaine UGA, would still reduce that UGA to less than half its previous size – from approximately 3,000 acres (excluding tidelands) to 1,300 acres.
Similarly, the amendment proposed by the City of Ferndale would reduce the Ferndale UGA from roughly 2354 acres to 1366 acres, a reduction of nearly 1000 acres.
The County’s UGAs as a whole still would be much smaller than they were for the past decade even though they now must be large enough to accommodate the projected population growth for the next 20 years.
Conclusion
For the foregoing reasons, the Council has authority to expeditiously amend Ordinance 2009-071 to settle the petitions for review pending before the Growth Board. Such amendments would be within the County’s broad discretion to make policy choices on how to accommodate growth, based on local circumstances, and would be entitled to deference by the Growth Board and courts. In those circumstances where a written justification is required from the County, the County would have broad discretion in stating its justification for the amendments. Reliance on a revised market supply factor or similar local decision would be a simple, quick, and legally defensible justification that would almost certainly be upheld if appealed, in light of the substantial deference granted by the Growth Board and courts. Thus, the process of amending Ord. 2009-071 can be simple, expedient, and legally defensible.
No comments:
Post a Comment