Why Is The County Council Considering A West Blaine UGA Settlement Based On An Issue Over Which The Growth Management Hearings Board Has No Jurisdiction?
If Trillium and Blaine wish to dismiss their case without prejudice, this could be accomplished simply by the filing of the joint motion to dismiss that is attached to the proposed settlement as Exhibit A. http://www.whatcomcounty.us/council/meetings/council/packet/ab2010-447.pdf
(Oooopps, you probably noticed that the settlement reflected in the Council Agenda fails to contain Exhibit A. However, based on prior versions of the settlement I obtained through public record requests, it probably looks like this: https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B4uUR0E44bH3Y2E3ODA3YmQtZDhhYy00YjA5LWI2NmUtN2UwZDQ5NDkwMTUw&hl=en )
Instead, Trillium and Blaine also seek the execution of a proposed settlement to obtain the County’s concession of unresolved vesting issues for the West Semiahmoo PUD and Preliminary Long Plat applications. As a result, the proposed settlement is likely to result in the reestablishment of the West Blaine UGA, regardless of compliance with normal GMA requirements.
The settlement has been carefully drafting so that its language must be carefully parsed to understand the implications. Thus, while the settlement states that the parties will proceed without pre-determining the outcomes of the applications, (Paragraph K, page 2 of 6), it determines that the PUD and Preliminary Long Plat application are vested, ensuring the ultimate outcome (Paragraph C, page 1 of 6).
Paragraph J obliquely states that the West Blaine UGA issue will be resolved based on vesting (Page 2 of 3). Paragraph 3, (Page 3 of 6), indicates that the PUD and Preliminary Long Plat applications will be processed pursuant to the plans and regulations in effect on the dates they were determined to be complete, indicating the applications will be processed as vested. The County is prohibited from taking a contrary position in pleadings and oral argument in any future administrative or judicial proceeding (Paragraph 3 of 6), making these provisions binding regardless of any change in future circumstances.
Why is this a problem, notwithstanding the validity of Trillium’s vesting claim? Semiahmoo West’s vesting status is not a matter that is before the Western Washington Growth Management Hearing Board, and therefore, is not a valid basis for County settlement or concession. In fact, the subject matter of this settlement is so far outside the scope of GMA issues reviewed by the Hearing Board that appeal of the settlement would require the filing of a Land Use Petition Act (LUPA) in state Superior Court.
The Hearing Board lacks authority to resolve disputes concerning application of Washington’s vested rights doctrine. The Board has limited subject matter jurisdiction, and can only review comprehensive plans, development regulations and amendments. RCW 36.70A.280; Vines v. Jefferson County, WWGMHB, 98-2-0018 (MO 1-21-99). Vesting issues are site-specific land use decisions that must be reviewed under LUPA. Woods v. Kittitas County, et al., 162 Wn.2d 597(2007). However, the settlement incorrectly indicates that all parties benefit from avoiding “the potential for duplicative litigation in the GMHB proceedings” and the Semiahmoo West applications (Paragraph K, page 2 of 6).
And let us be clear, the vesting issue is an unresolved dispute. Existing legal authority authorizes the vesting of a PUD application only when linked to or coupled with a Preliminary Long Plat Application. Association of Rural Residents v. Kitsap County, 141 Wash.2d 185 (2000), reconsideration denied, (2000); Schneider Homes Inc. v. City of Kent, 87 Wash. App. 774 (1997); review denied, 134 Wash.2d 1021 (1998). Trillium’s PUD application for 1248 units is not “coupled with” a Preliminary Long Plat application that plats only 28 lots. Moreover, the Planning Department has specifically refrained from making a determination on this issue, as reflected in a 1/11/10 email by former Planning Director Stalheim.
I am concerned that, as drafted, the issues and terms of the settlement are not transparent. It would be easy for the public, and perhaps members of Council, to review the settlement, believing this reflects a joint dismissal without prejudice, without understanding that the County is fully conceding a UGA case based on facts for which the Hearing Board lacks jurisdiction, while ignoring relevant facts that the Hearing Board was established to adjudicate. These settlement terms are extremely beneficial for Trillium and Blaine, but fail to provide any benefit to the County.
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