[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.]
As I wait for the most recent motion from the GMHB on the galvanizing saga about the County's Rural Element (aka All My Invalids) to be published on the GMHB website, I am going into my TARDIS and travelling back in time.
The date... January 9th, 2012.
The Case Number... 11-2-0010c.
For a more informed take on this matter, including information on the most recent motion from the GMHB, read an excellent and in depth and much more reverent article at Get Whatcom Planning. [LINK]
But now, back in timey-wimey.
In this 175+ page document, I counted twenty conclusions by the Board that the Petitioners did not meet their burden of proof.
This does not include the series of conclusions regarding Governor's Point, in which it appears that the Governor's Point Development Company has failed to meet its burden at all. Governor's Point and the Sahlin family got no love whatsoever from the GMHB.
The County, on the other hand, got the benefit of the doubt from this Board literally a score of times.
So, any argument that the GMHB is blowing kisses to Futurewise or any of the other Petitioners is absurd on its face.
Pages 8-9
...
In reviewing the planning decision of cities and counties, the Board is instructed to recognize "the broad range of discretion that may be exercised by counties and cities" and to "grant deference to counties and cities in how they plan for growth." [pursuant to RCW 36.70A.3201] However, the counties action are not boundless; their actions must be consistent with the goals and requirements of the GMA.
Thus, the burden is on the petitioners to overcome the presumption of validity and demonstrate that the challenged actions taken by the County is clearly erroneous in light of the goals and requirements of the GMA.
...
The Board held the Petitioners to a high standard, and found... in writing... that those Petitioners failed to meet that burden several times and in several instances of this case.
Look for the love given to the County on pages 27, 50, 54, 57, 60, 63, 65, 67, 68, 69, 73, 76, 106, 108, 109, 113, 117, 118, 128, and 132. As well as the entire section on Governor's Point.
Oh, by the way, to the Governor's Point Development Company I offer these words of comfort:
HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA! HA!
HA!!!!!!!!!!!!!!!!!!!!
No, but seriously... suck it, Governor's Point Development Company.
But it wasn't all smooches and snuggles for the County, either.
Check out some of the choicest, most John Grisham-y quotes from this otherwise clunky document...
Lake Whatcom, for example...
Page 43
...
The County characterizes evidence presented by the Petitioners as "perceived problems with small lot sizes, from surface water run off to contaminated wells to failing septics," and states these issues are speculative and ignore the County's development regulations. ...
Perceived problem? Nice... Way to class up the joint, Whatcom County...
So, how did the GMHB receive that?
... The Board finds that petitioners provided ample evidence about risks to water supply, water quality, and water resources for fish from rural development in Whatcom County. ...
Ouch.
But wait... there's more...
Page 44
...
The County's unsupported assertion that its regulations are adequate to provide the needed protection rings hollow.
Oh. Feel the BURN... and have a little more fire Scarecrow...
The County provides no information about the DRs that allegedly address these issues, but the current report on Lake Whatcom water quality demonstrates that the existing regulations have not protected Lake Whatcom and that the problems are actual and proven, and not speculative. ...
Wow.... allegedly address? That must hurt like a paper cut.
So it should come as no surprise that...
Page 45
...
The Board determines that Petitioners have met their burden of proving the county's failure to provide the necessary measures to protect the Chuckanut Wildlife Corridor and Lake Whatcom's water resources as required by RCW 36.70a.070(5)(c)(iv)
...
So, no love for the County on how it handled Lake Whatcom... what about the LAMIRDs...?
Page 88
...
The Board finds that the Petitioners have demonstrated that the County's approach to the regulation of LAMIRDs in its zoning code is clearly erroneous.
Uh oh... not feeling the love here...
...
In this case, the Board reviewed the County's methods to accommodate LAMIRDs, and the allowable uses within LAMIRDs, in rural areas. The Board found the methods to be laborious and convoluted. ...
Lets pause here...
The very people who wrote this convoluted LAMIRD language are the same folks who complain loudly and endlessly about how unnecessarily complicated and hard to understand the county code is... and so, when it is their turn to show the rest of us how it is done, they write the legislative equivalent of IKEA furniture instructions... minus the umlauts.
Nice work, invalids.
Back to the FDO...
Page 91
...The Board finds this scheme circumvents and violates both the spirit and the letter of the Growth Management Act. ...
Yikes. That had to sting. And the slap is not finished...
...In addition, this development regulation does not contain limits or conditions on lot coverage for General Commercial Districts; see WCC 20.67.450. This leaves the interpretation up to the county permit staff to determine lot coverage rather than clearly stating the requirements for land owners and the public.
Okay, lets pause here again.
The very people who wrote the glorious hot mess that is the new Rural Element are the very people who don't trust county planning staff any further than they could throw a fit.
The lament of the development community locally has consistently been to make transactions with the County predictable. And then, once they get into a position to insure predictability, instead of putting standards and requirements in writing...they write code that requires a judgment in real time by which ever member of planning staff happens to be at the counter at any given time.
Cute.
On with the shadenfreude...
Page 92
... when the Board reviewed how the LAMIRDs were defined and the uses allowed in them it found contraditions and violations of the GMA. ...
...
So, it should come as not much of a surprise that...
Page 94
...
The Board concludes that the Petitioners have demonstrated that the County committed clear error in adopting development regulations for its LAMIRDs that violates RCW 36.70a.050(d)(i-iii)
...
And now lets make like James Brown and take it to the bridge...
...That was then.
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.
So, in the intervening year... did the County Council address the substantive issues raised by the GMHB? Did they pass regulations that substantively protected Lake Whatcom, or start the LAMIRD element from scratch and render it less laborious and less convoluted?
Hell to the No.
The County in response, tweaked the Rural Element (as if they were just a half bubble off plumb or something) and submitted its largely superficial changes to the GMHB... pouting all the while and then going home in their 2012 Scion Huff.
(They were so mad at Jean, you guys...)
Almost a year has passed, and the GMHB had filed another FDO. (Which really calls into question the use of the word "final"... but I'll leave that rest for now...)
The GMHB shaved a few more of the hard edges from the original order, but the bulk of the order of invalidity appears to remain in tact.
My political take on this matter is as follows.
A year ago, when this FDO was published, the conservatives on the County Council, and on the Planning Commission, were expecting that Rob McKenna would become Governor.
Then he could appoint persons to the GMHB that are more sympathetic to property rights issues.
Then the County could wait for that new improved GMHB (now Chock Full of Property Rights Goodness) to find their Rural Element to be Fully Compliant and Magically Delicious.
And a year later (and with the full benefit of hindsight) it is obvious that's not going to happen. Jay Inslee won the Governor's Mansion.
So, now, we are holding a Failure Pile of land use invalidity in a legislative Sadness Bowl. (My apologies to Patton Oswalt)
And instead of admitting that the Rural Element of our Comp Plan is so far off the mark that we have to change it... and change it a lot... to restore our presumption of validity sometime in the next four years...
Instead of admitting that the McKenna Hail Mary Pass is a complete bust...
we are going to sacrifice another... $50,000 or so... at the Holy Sepulcher of Property Rights and Whatnot to have some Seattle based legal firm to fight the good fight so that the County Council and the Planning Commission can hold onto the coveted Idiot Ball just a little while longer.
 |
| Oh, Idiot Ball... I wish I knew how to quit you... |
I'm no legal expert, but it seems unlikely that on the matter of Lake Whatcom and LAMIRDs, even the most forked-tongued mouthpieces... uh... I mean... most gifted attorneys... are going to get the GMHB to rescind their order and restore the county's presumption of validity in its entirety.
I don't know what the Best Law Firm Ever is going to do about what I'm reading in this Order even if they appeal it to a higher court.
The only legal approach I see working in this matter is the dreaded Chewbacca Defense.
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| This Invalidity does NOT MAKE SENSE... |
I don't see the Chewbacca Defense working reliably on a panel of judges.
My limited understanding of the Chewbacca Defense is that it is generally understood to only work reliably on persons of ordinary prudence, not persons trained in jurisprudence.
As for me, I can't wait to see the reaction from the Planning Commission.
The Planning Commission postponed a big chunk of its organization of business for 2013, because the 2013 FDO hadn't been released yet.
Now, it's released.
I'm sure they will just eat it up with a spoon.
The next County Planning Commission meeting is on January 10th at 6:30 p.m. At the Northwest Annex on 5280 Northwest Drive.
This promises to be an interesting year.
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