"We have met the enemy, and he is us." - Pogo
With friends like this County Council, the development community doesn't need any enemies.
Is it possible that Sam Crawford is secretly a Futurewise plant, with a mission to get the rural element invalidated and hopelessly screw up the development community's ability to function in the rural areas?
I mean, really, is there a better explanation that also preserves Mr. Crawford's reputation as a political mastermind after this grotesque setback?
Because if he didn't intentionally allow for several thousands of acres of rural property to be placed in zoning limbo by the Ruling of Invalidity by the GMHB, then he is about as political adroit as... some metaphor that symbolizes the quality of not being very politically adroit.
The County Council spent a year knowingly leaving its Comprehensive Plan's rural element out of compliance with the GMA, daring the State to "do something about it".
Well, nice play, Shakespeare.
They did something about it.
Sam Crawford and his merry band of Invalids played a game of chicken with the Growth Management Hearings Board and placed your property rights on the line as an ante. And the GMHB didn't blink and didn't swerve.
Now what?
While we await a clear idea what the fallout from this blunder might be, the blogospheric conditions on the Herald website appear to be shaping up interestingly.
The indefatigable Jack Petree is making an unusual rhetorical case.
Here are links to the Local News section. And here is the coverage on the Poltics Blog
Here is a representative sample of Mr Petree's argument...
"Fact is, if the County chooses to utilize LAMIRDs it must conform to LAMIRD law where used but, LAMIRDs are optional... The County does not need to utilize them... What the county must do is explain, in its rural element, how each zone it utilizes helps achieve County goals for rural character...
What the County should do is use a carefully considered mix of options but some want to shove the LAMIRD option down the throats of the citizenry...
Historically our rural character has included a broad mix of types with some higher density areas, some larger farms, some high density recreational areas, and a ton of farms in the one to five acre range... The rural element, with LAMIRDs, we are considering now brings an end to nearly 100 years of rural history in Whatcom County because it eliminates the smaller landholdings and the community centers we have traditionally valued..."
Jack Petree on the Herald website.
So, if I understand Mr. Petree, he is saying that there are no LAMIRDs in Whatcom County. That LAMIRDs are an optional element of a Comp Plan under the GMA, and that since the word LAMIRD doesn't appear in the Whatcom County Comp Plan, then we don't have LAMIRDs. And by that logic, we are not required to conform to Growth Management Act regardling LAMIRDs.
Cool.
What Whatcom County does have, however, are the following...
"small towns and crossroads communities, crossroads commercial, resort and recreational subdivisions, suburban enclaves, and transportation corridors"
All of these terms do appear in the rural element of the County Comp Plan. And the GMHB had determined them all to be invalid in its conclusion.
"Based on the foregoing, the evidence submitted by Futurewise, and the concession by the County that it is approving subdivisions “within the boundaries of the LAMIRDs recommended by the Planning Commission”, the Board finds and concludes that the continued validity of designation criteria in the descriptors for small towns and crossroads communities, crossroads commercial, resort and recreational subdivisions, suburban enclaves, and transportation corridors and Policy 2GG-2 promote the inappropriate conversion of undeveloped land into sprawling low density development and substantially interfere with the fulfillment of goal 2 of the GMA, RCW 36.70A.020(2) and are therefore invalid."
The GMHB Conclusion in its Determination of Invalidity.
Notice the portion of the conclusion to which I've added emphasis...
and the concession by the County that it is approving subdivisions "within the boundaries of the LAMIRDs recommended by the Planning Commission"
Huh...
See, you can call an area of "more intense rural development" a suburban enclave, a crossroad community, a transportation corridor, a proto-LAMIRD, or whatever the hell else you want. You can even deny it is an According-To-Hoyle LAMIRD. But it is clearly a.... 'MIRD. It is More Intense Rural Development, no matter what euphemism you might use to describe it.
And it still has to comply with the GMA.
Hey Development Community... do you think you can survive any more of Sam Crawford's political genius in 2011? Because his last favor to you appears to have worked out like gangbusters... for Futurewise.
You folks like apples...?
How do you like them apples?
So, how many planners are left to even try to re-do the Comp plan to meet the GMA requirements?
ReplyDeleteDoes this mean the county might have to fund planning department again, that is before Kremen fires them all for following the law.
No downside, none, to County Council continuing to do what they've done and are doing, which is stall everything off until the entire rural county is paved. The only downside would be sanction from the state, which the state will never do.
ReplyDeleteI think Petree is on to something. All of this presumes there is a functioning police dept somewhere. Without that, County Council is free to do anything it likes.
What Pete doesn't like are phone calls from constituents complaining. It is the one thing that drives him nuts because he likes people to like him. So, it is time to "leader" up. He can do it if persuaded by constituent complaints. :)
ReplyDeletePete Kremen, County Executive
311 Grand Avenue. Suite 108
Bellingham, WA 98225-4082
Phone (360) 676-6717
FAX (360) 676-6775
E-mail: pkremen@co.whatcom.wa.us
@anonymous36
ReplyDeleteIf this ruling had no downside to the County, then Sam Crawford would not be making the passionate statements to the press he has been making.
This is not something that the County can ignore. Those days appear to be over.
ApexNerd, I admire your optimism.
ReplyDeleteI read continued defiance in Crawford's remarks and a sense he believes the county should spend millions litigating to remain out of compliance.
A hearings board has ruled. Big deal. Same hearings board that has ruled, been ignored or stalled off; ruled, been ignored or stalled off. Supreme Court has ruled. Big deal.
There are no police. Who's going to act? The governor? The Legislature? Ha. There are no police.
Happy New Year.
Considering the comments by Apexnerd, Anon36, and Mr. Stalheim (aka Outside Man), who at the county actually decides whether or not to "spend millions litigating to remain out of compliance."
ReplyDeleteDoes Council make that decision, or does the Executive / Administration?
The council is the legislative body, and are the ones typically that would make this decision because it is legislative in nature. The Exec., however, is responsible for the administration of this order and the complaints about uncertainty. So, the answer is a bit of both.
ReplyDeleteThe charter delegates the authority to "sign or cause to be signed, on behalf of the County, all claims, deeds, contracts, and other instruments." to the executive branch in black letters.
ReplyDeleteThe Charter doesn't say jack squat about delegating any authority to enter into a lawsuit to the legislative branch.
Furthermore, the Prosecuting Attorney is described in the Executive Article of the Charter, not the Legislative Article
Is a lawsuit a claim, or isn't it?
It's a system with a lot of play, that's for sure. Under the Charter, the Executive is supposed to "execute and enforce all ordinances and state statutes within the county." The Prosecuting Attorney, under state law, is the legal advisor to the legislative body and to all county officers. And the County Code says that "Unless authorized by law to be filed directly by the prosecuting attorney, all other civil lawsuits brought in the name of or on behalf of Whatcom County shall be commenced upon, and only upon, the approval of the county council." (3.05.020.B -- easy to miss because it's conveniently located in a section entitled "Settlement authority for tort claims.")
ReplyDeleteSo, will the Executive "enforce" state law? Who will the Prosecuting Attorney advise? Will the Council approve a lawsuit? All of these questions are raised by state law, the Charter and the Code, but will be resolved by politics.
...stay tuned for the answers to these questions, and so very many more... AS THE COUNTY TURNS.
ReplyDeleteexcellent points, as always Jean...
So, if the County is being sued, the Council has to approve those settlements.
Does this imply the the Council gets to decide when the County will be suing anyone else though?
It seems that the decision to initiate legal action against a third party is an executive function, and so that function would fall to the Executive branch of government.
Let's remember folks, that in Washington State, the norm is that the County Council serves the legislative and executive function. The Home Rule Charter arrangement we have here in Whatcom County is the exception... not the rule. But if these separate branches are supposed to mean anything, then Executive functions are going to have to be taken by the Executive branch at some point.
For a practical (and recent) example of how this works, the council did decide to settle lawsuits with Trillium and GoldStar, and gave direction to the executive to do so. The council was advised by Legal that they had the option and authority to do so (without receiving the very important corollary notice that they were perfectly justified in standing by their earlier decision and NOT settling). The executive had (and has) the option of vetoing their decision to settle. He has not chosen to do so.
ReplyDelete@anonymous36
ReplyDeleteExcellent point also...
However, that is an example of the County settling a lawsuit initiated by a third party.
What the Council (or at least the Chair) is contemplating appears to be initiating a lawsuit against a third party.
Remember, the County didn't sue Trillium and GoldStar. They sued the County.
Who has the authority to decide when and if the County will be suing a third party?
My money is on the Executive Branch based on the language of the Charter, the WCC, and my layman's understanding of what Executive action means.
Having said that, my money is also on the County getting flawed legal advice on this matter... and taking that advice.
I think that there are two fronts to the order of invalidity.
ReplyDeleteEnforcement -- the Order is the law of the land right now, and the Executive has the obligation to direct his staff in Planning and Development Services to make sure that it's enforced. Those who are interested in seeing that the Order is implemented might contact the Executive to encourage him in these efforts, and to let him know that people are interested and watching.
Litigation -- if the Order is to be appealed, it has to be approved by the Council. (That should fall under "lawsuits brought in the name of, or on behalf of" the County.) Bear in mind that the Council Chair can call a special meeting with 24 hours' notice, and that notice doesn't have to be provided to the public -- it can just go to the media. And executive sessions, closed to the public, can be held during special meetings.
So -- the Council could decide, with very little notice and no open discussion, to appeal the Order. The final vote would have to be public, but the decisionmaking process wouldn't be.
If, as a taxpayer and/or a citizen, you would prefer to see your tax dollars spent on complying with state law rather than fighting it to the bitter end, NOW would be a very good time to contact the Council and tell council members that this is the policy approach that they should adopt.
Yeah, what Jean said.
ReplyDeleteAs always, thanks Jean; your response is exactly why I asked the question. The public needs to know how and where to apply pressure on those who will be making these decisions.
ReplyDeleteHello Mr. Kremen, this is Anon 777...
But, again, stalling and delay are the order of the day for Whatcom County, whether that comes from the council or executive. I mean, we've been dealing with some certainty about these issues since 2005.
ReplyDeletePete and Dewey can flap their arms and say they don't have the resources for addt'l enforcement without direction from the council. The council can fumble around for three months in work sessions, request another grace period from GMHB based on information from the executive that the resources just aren't there to tackle compliance issues. But they've been working on it in work sessions! Stall. Delay. Stall. Delay. Stall.
Some of the problem related to poor (no) leadership. Some is related to unfortunate Legal advice that the council continues to have latitude. A portion, I think, is bad will.
The longer the county remains out of compliance, the more subdivision can vest, and the more merit grows in developer claims that they were not treated fairly or equitably by county government: "I've waited, paying my property taxes, with the idea I can develop this property!!" And they'll have a point.
When you draft your policy and settlement based upon language created and supplied by folks like Swanson who are litigating against you, you can pretty much guarantee you'll eventually have your *** kicked in court. I think that suits Crawford's aims perfectly.
I guess what I'm saying here is that when you know what time the bus arrives and you just don't walk out to the bus stop to meet that schedule, you've made a decision with consequences even though it appears to onlookers no decision to deliberately miss the bus was actually made.
All council needs is a smidgen of plausible deniability that they've acted in bad faith.
Anonymous36 apeaks plain truth. But here's a question --
ReplyDeleteWhat resources would enforcement of the Order require, in terms of PDS staffing, above and beyond what would be required to process applications anyway?
I guess that staff would have to look at a map to see if applications are in an affected area, and would have to communicate that fact to potential applicants. Beyond that, I would think that staff time would stay the same or decrease. How many applicants will want to pay an application fee once they know that the application won't vest?
That's another point to make to the Executive: simple fairness to property owners requires clear direction on implementing the order.
Surprise! I just received a notice of a "Special Council Committee of the Whole" meeting to be held at 1:00 tomorrow (Tuesday, January 24) in the Council Office, Suite 105.
ReplyDelete"Discussion regarding GMHB order. . . Discussion of this item may take place in executive session (closed to the public). . ."
Clearly, this is the biggest emergency ever to hit Whatcom County, requiring immediate action and the complete exclusion of the public.
In light of the public interest both in growth issues in rural areas and in the expenditure of tax dollars for more litigation, I hope that the public will be heard. E-mail your Council members, quick.
The meeting will be on Tuesday, Jan 4 (there's a typo above).
ReplyDeleteHere's a link to the agenda for the special council meeting of the whole:
ReplyDeletehttp://media.bellinghamherald.com/static/images/downloads/JaredPaben/GMHB%20ORDER_20110103130513.pdf