[BIG Disclaimer: Apexnerd is married to one of the petitioners in the case documented in this story. He is not even in the same quadrant of the galaxy as the M-Class Planet Objectivity.]
Just this morning, I went back in time to look at the Jan 9 2012 Order of Invalidity from the GMHB. LINK
And now, the latest motion of the GMHB in terms of invalidity of the Whatcom County Rural element is available.
I found a link to the text of the order made available by the Whatcom Excavator. So... thanks, Publius... whoever you are. LINK
The coverage of the matter by Publius was as brief as it was shrill...
...The Chicken Little "The Property Rights are Falling! The Property Rights are Falling!" response is far from surprising.
It [The GMHB Order] is directly related to Futurewise’s attempt to stop rural land use in Whatcom County. They want more “controls” and limitations of land use, this is all directly related to Whatcom County’s Comprehensive Plan, Rural Element.
...
Nonetheless, I will spend a little more than two paragraphs on the matter.
One of the aspects of these petitions to the GMHB that gets very little attention is the severe burden of proof placed on Petitioners.
Page 8-9
...
In sum, the burden is on the Petitioners to overcome the presumption of validity by demonstrating the action taken by the County is clearly erroneous in light of the goals and requirements of chapter 36.70A RCW (the Growth Management Act). RCW 36.70A.320(2).
Where not clearly erroneous and thus within the framework of state goals and requirements,
the planning choices of the local government must be granted deference.
...
So, the notion that the GMHB plays favorites with Futurewise or any other petitioners in irreconcilable conflict with the facts.
Page 66
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At the outset the Board notes the FDO on Remand made findings of invalidity concerning the County‘s LAMIRD development regulations, placing the burden on the County to demonstrate the regulations no longer interfere with GMA Goals 1 and 2. The burden remains with the Petitioners to demonstrate failure to comply.
...
The County is currently under an order of invalidity, and the County still must be given every benefit that comes with doubt and the burden of proof still remains on the Petitioners.
And, again, the GMHB was duly generous with that doubt.
Significant chunks of some of the sharper edges of Invalidity were shaved off by the GMHB.
Page 21
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In light of the unique posture of this case, the County‘s choice to cross-reference development regulations as "measures" in its comprehensive plan is not clearly erroneous. The Petitioners have not met their burden of demonstrating the County‘s cross-referencing structure violates RCW 36.70A.040(3)(d) or RCW 36.70A.130(1)(d).
...
Woo hoo! We Are Not Clearly Erroneous! We Are Not Clearly Erroneous! WE...
*cough*
...anywho...
Page 29
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The Board concludes the County‘s Policy 2DD-1 on population allocation does not create an internal inconsistency which violates RCW 36.70A.070(preamble) or RCW 36.70A.130.
...
Page 41-42
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The Board finds the Petitioners have not carried their burden of proof demonstrating the County‘s policies fail to comply with RCW 36.70A.070(5)(c)(ii) regarding visual compatibility of rural development with the surrounding area.
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Page 47
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The Petitioners have not carried their burden of proof that the County failed to
include Best Available Science in protecting Critical Areas or failed to adopt measures
compliant with RCW 36.70A.070(5)(c)(iv) with respect to the Chuckanut Wildlife Corridor.
...
Again, the notion that the GMHB is just giving away the store to Futurewise or any other petitioner, is absurd on its face.
And remember, if there were any red meat for Publius to throw at the TEA Party base... there would have been mention of it.
No, instead, the Excavator just implies that this Remand order is just Chock Full of Property Wrongs. (which is the opposite of Property... anyway...)
On closer inspection (and by closer inspection, of course, I mean any inspection at all...) the Petitioners were held to a severely high standard
...and sometimes they met that standard.
Page 32Zing!
...the Whatcom Plan lacks measures to protect rural character by assuring a variety of rural densities.
...
Ordinance 2012-32, as it relates to providing a variety of rural densities, is clearly erroneous in view of the entire record before the Board and in light of the goals and requirements of the GMA.
...
Page 37Pow!!
...
the Board finds the County contradicts itself when it states creation of new building lots "shall be" governed by the guidelines, but then the guidelines are permissive with words such as "should be" and "where practicable." ... The Board finds these DRs do not comply with RCW 36.70A.070(5)(c)(i) and (iii).
...
Page 39Thwip!!!
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Ordinance 2012-32, as it relates to clustering as a measure to protect rural character, is clearly erroneous in view of the entire record before the Board and in light of the goals and requirements of the GMA and specifically with RCW 36.70A.070(5)(c)(i) and (iii).
...
Page 42Bamf!!!
...
The Board‘s FDO on Remand determined the County failed to adopt measures to protect rural character by protecting the Chuckanut Wildlife Corridor and Lake Whatcom‘s water
resources as required by RCW 36.70A.070(5)(c)(iv).
...
Page 53THUD!
...
If the County chooses to cross-reference its existing regulations as "measures" to protect water resources, it cannot claim to be protecting Lake Whatcom when it has not yet adopted the regulations Ecology states are necessary. The Board is left with a firm and definite
conviction that a mistake has been made.
...
the Board finds the County‘s measures to protect surface and ground water do not comply with RCW 36.70A.070(5)(c)(iv) because the County has not adopted measures that protect Lake Whatcom water quality, as instructed by Ecology.
Page 54THOOM!!!
...
Petitioners have carried their burden of proof and the Board finds the County does not have measures in place to protect rural character by protecting water resources of
Lake Whatcom as instructed by Ecology, and thus fails to comply with RCW 36.70A.070(5)(c)(iv).
Ordinance 2012-32, as it relates to protecting the water resources of Lake Whatcom, is clearly erroneous in view of the entire record before the Board and in light of the goals and requirements of the GMA.
...
Then there are the head scratchers...
Page 61
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The Board finds Petitioners have failed to carry their burden of proof demonstrating Rural Neighborhood designation and RRDO overlay for the prior LAMIRDs is noncompliant with the GMA.
Oh, tough break, Futurewise. You didn't meet your burden. The County gets a win here, I guess.
However,
Wait...what..?
the Board finds that the boundaries of the Rural Neighborhood designations for Fort Bellingham/Marietta, North Bellingham, and Welcome are in violation of RCW 36.70A.070 (internal comprehensive plan consistency). Ordinance 2012-32, as it relates to these Rural Neighborhood designations, is clearly erroneous in view of the entire record before the Board and in light of the goals and requirements of the GMA.
...
Wow, that was weird. Probably just a one time thing. An... anomoly... if you will.
Page 71
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In sum, the County‘s adoption of WCC 20.80.100(1)properly addressed the issue of identifying size and uses in specific LAMIRDs in 1990, as required in the FDO on Remand.
Oh, see. Another case where the County has prevailed. Again, tough break for Futurewise.
However,
Uh oh...
in adopting WCC 20.80.100(2), (3), and (4), the County failed to comply with RCW 36.70A.070(5)(d)(i) and (iii). The Board is left with the firm and definite conviction that a mistake has been made.
...
Ordinance 2012-32, as it relates to Type I and Type III LAMIRDs, is clearly erroneous in view of the entire record before the Board and in light of the goals and
requirements of the GMA.
Wow... two anomolies... but that's it... I'm sure.
Page 74
...
Petitioners have not met their burden of proving the County‘s adoption of a 20-acre maximum size for Type II LAMIRDs violates GMA requirements.
Again, another clear vindication of the County from the GMHB. Sorry, Futurewise, but you didn't meet your burden. Buck up, kiddo.
However,
oh, Jesus Tap-Dancing Christ. What now?
as to requirements for small-scale" standards for Type II LAMIRDs, the Board finds the County‘s incorporation of WCC 20.80.100(2), (3) and (4) into its TC regulations at WCC 20.63.451 and .705 does not comply with RCW 36.70A.070(5)(d)(ii). Ordinance 2012-32, as it relates
to requirements for "small-scale" standards for Type II LAMIRDs, is clearly erroneous in view of the entire record before the Board and in light of the goals and requirements of the GMA.
...
That is remarkable.
The County managed to snatch defeat from the jaws of victory no less than three times in this Remand.
Let me illustrate this with a comparison.
In the 2012 FDO, the GMHB found:
Page (171-172)
The Board concludes that the continued validity of the amended portions of WCC 20.59, 20.60, 20.61, 20.67, and 20.69 and the LOBs of certain LAMIRDs described above would substantially interfere with Goal 1 of the GMA and therefore finds them to be invalid.
In the remand, almost a year later, the GMHB found:
Page 89
The Board hereby finds and concludes that the continued validity of certain parts of Ordinance No. 2012-032 would substantially interfere with the fulfillment of the GMA Planning Goals 1, 2, 9, 10, and 12.
So, in one year, the County went from substantially interfering with one goal of the GMA, to substantially interfering with five goals.
The County, and its esteemed and now Certifiably Not-Clearly-Erroneous Planning Commission, were so deftly clever in their rewrite of the Rural Element, that they have fallen ass-backwards into conflict with four more goals than they were originally in conflict with.
This is like something Peter Sellers would do in a Pink Panther movie.
In appreciation of the hard work of the County Council and its Not-Clearly-Erroneous Planning Commission, it is time to recognize their accomplishment in Epic Achievement in Invalidity with the most appropriate and fitting award available.
The Sardonic Slow Clap.
Bravo.
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