Showing posts with label Futurewise. Show all posts
Showing posts with label Futurewise. Show all posts
Monday, December 27, 2010
Friday, July 9, 2010
Expanding UGA Boundaries: The Public Pays But Does Not Benefit
On July 13, 2010, the County Council will be holding a public hearing on its proposal to amend and expand the UGA boundaries that were determined pursuant to an extensive public review process only last November. To obtain more information regarding this issue, and why you should weigh in, check-out the Futurewise Whatcom Op-Ed piece in the Herald.
I am posting below the public comment that I just filed with the County Council:
PUBLIC COMMENT REGARDING EXPANSION OF UGA BOUNDARIES
On July 13, 2010, Whatcom County Council will hold a public hearing regarding proposed expansion of the UGA boundaries for Birch Bay, Ferndale, Nooksack and Sumas that were approved by our prior County Council in November. Because these new UGA boundaries do not serve the public interest, the November boundaries should not be changed.
The Revised UGA Boundaries Do Not Respect The Public Process.
The proposed UGA expansion is premised, in large part, on increased population projections. There is no new information that supports these revised figures. In fact, updated information, as recently reflected in the Bellingham Herald, indicates that projections used in November actually overestimated County growth and development to read article please click here.
In contrast, the November UGA boundaries were based on recommendations from the County Executive, involved extensive Staff review based on a land capacity analysis originally agreed upon by all the cities, a SEPA Environmental Impact Review, Planning Commission review, and allowed for extensive public input over a long time period. The final UGA boundaries were based on the totality of this evidence, and attempted to balance the needs of the cities, individual residents, community organizations and members of the development community.
When an issue has been discussed between Council Members, with input from special interest groups, resulting in a determination reflected in a proposed drafted ordinance, and the general public is provided a public hearing only after this has occurred, public concerns are much less likely to have any meaningful impact on the outcome.
Yet that is precisely what has occurred in this case. A number of cities and developers displeased with the results of the fair and open public process in November filed a lawsuit with the Western Washington Growth Management Hearings Board, as is their right. However, some litigants engaged in settlement discussions with County Council members (after declining to meet with the Planning Department) before the public had an opportunity to comment.
County Council is using the proposed ordinance to concede to demands of the cities based on the same information that had been previously considered. The public process referenced in, and cited as support for, the proposed ordinance consists of the public hearings held before the vote in November. (See page 4 of 21 of Ordinance AG-2010-0554C) click here to read Ordinance. In other words, the current County Council has substituted its judgment for that of the prior Council, whose determinations were informed by extensive review, analysis and community input.
While it is normal for Council to privately discuss litigation with their attorneys to ensure that opposing parties are not given a strategic advantage that would harm the public interest, no similar justification exists when Council discusses litigation settlements with the opposing party. In this situation, information provided to litigants is considered public information and even the appearance of “closed door” meetings and “backroom deals” is inappropriate.
Since settlement discussions occurred even before the public UGA Settlement Conference, I am concerned that the July 13, 2010 public hearing has been scheduled as a mere formality to comply with mandated state requirements. It does not appear that County Council has engaged in a meaningful public process as required by the GMA. Amending the November UGA boundaries without meaningful public input could result in the County losing its current GMA-compliant status for UGA review and update.
The Revised UGA Boundaries Reflect Poor Legal Judgement
As further discussed below, the proposed ordinance reflects an unjustified legal concession by the County that is not in public’s best interest. Moreover, the County’s handling of the lawsuit has been highly irregular (although not illegal). This raises a number of troubling questions that remain unanswered.
An April 5, 2010 letter from the litigants’ attorneys set out procedures they alleged would allow the County to expedite expansion of the November UGA boundaries. Council was advised that as part of a litigation settlement, it could “abbreviate procedures”, including those for public participation. However, the legal authority cited was based on passage of an emergency ordinance, and is not applicable to the Whatcom County proposal. Why would litigants in an adversarial proceeding provide what appears to be friendly assistance to the County Council regarding the process to follow for concession? Ignoring the fact that Council was provided with faulty legal advice, should not this be the role of the County attorneys?
Because the November boundaries reflect substantial staff analysis and public input, it is these boundaries that the County can most strongly defend against legal attack. In contrast, the proposed expanded UGA boundaries are more vulnerable to legal attack. The new boundaries were made only 8 months after the prior boundary determinations, are not based on new information, do not reflect the same degree of staff analysis, and contain almost no public input. Why is the County conceding litigation without any analysis of litigation risks or its likelihood of prevailing? This is a predicate condition for any type of lawsuit concession, yet there has been no public discussion regarding how the expanded UGA boundaries would impact litigation risks. Since this is only a partial settlement, the position of the remaining litigants is bolstered by the proposed ordinance.
Perhaps the County is relying upon the “helpful” advice contained in the April 5, 2010 letter from the opposing litigants indicating that County concession, and expansion of UGA boundaries, is justified by the legal presumption of correctness afforded the County with regard to it UGA boundary determinations. However, far from justifying concession, this is strong evidence of the County’s ability to prevail in the current lawsuit. Isn’t it in the public’s interest to proceed with litigation based on the County’s strongest legal position? This will not be accomplished if the proposed ordinance is approved.
Expanding The UGA Boundaries Increases Public Costs.
Studies, and experience, have established that private development is expensive, and that much of that cost is passed along to the public. Because impact fees do not cover the actual costs for roads, sewer, schools, and other costs generated from new housing developments, current taxpayers make up the difference. The community subsidizes this development through higher taxes or reduced public services. How much more can public services be cut while still maintaining a functional County government?
But these are only the most obvious increased public costs. By expanding UGA boundaries, the County contributes to sprawl. It loses more of its rural and agricultural land, creates greater environmental impacts and displaces more fish and wildlife and habitat. More urban growth increases existing problems with water quality and quantity. There are costs associated with all of these impacts, as well. The November UGA boundaries were a smarter growth choice, requiring greater emphasis on urban infill.
Expanding the UGA boundaries is likely to increase another expensive public cost, that of litigation. As noted above, the proposed ordinance affects only a partial UGA lawsuit settlement. Not only will remaining litigants proceed with the current suit in a stronger position, but new litigation is possible if the proposed ordinance is approved. This increases the resources necessary to defend the UGA boundaries, and as discussed above, leaves the County in a weaker legal position. The proposed expanded boundaries reflect “second guessing” prior boundary determinations, and fail to ensure that adequate Capital Facilities Plans exist for the expanded UGA areas, as required under the GMA. Finally, I believe that this ordinance is in violation of the County’s own procedures which require these types of revisions to be reviewed first by the Planning Commission.
There are also costs associated with the County losing its current urban area GMA compliance, including loss of grants and low interest loans. And frankly, how much sense does revising the November UGA boundaries make when the County is required to engage in another UGA boundary review in 2011? There is no reason that concerns being raised by the cities can not be properly addressed in less than a year.
Ignoring the public process, increasing public costs, and exposing the County to greater legal risks are not actions that benefit the public. For all the above reason, I ask the County Council to retain the November UGA boundaries.
Sincerely,
Wendy Harris
Bellingham resident
I am posting below the public comment that I just filed with the County Council:
PUBLIC COMMENT REGARDING EXPANSION OF UGA BOUNDARIES
On July 13, 2010, Whatcom County Council will hold a public hearing regarding proposed expansion of the UGA boundaries for Birch Bay, Ferndale, Nooksack and Sumas that were approved by our prior County Council in November. Because these new UGA boundaries do not serve the public interest, the November boundaries should not be changed.
The Revised UGA Boundaries Do Not Respect The Public Process.
The proposed UGA expansion is premised, in large part, on increased population projections. There is no new information that supports these revised figures. In fact, updated information, as recently reflected in the Bellingham Herald, indicates that projections used in November actually overestimated County growth and development to read article please click here.
In contrast, the November UGA boundaries were based on recommendations from the County Executive, involved extensive Staff review based on a land capacity analysis originally agreed upon by all the cities, a SEPA Environmental Impact Review, Planning Commission review, and allowed for extensive public input over a long time period. The final UGA boundaries were based on the totality of this evidence, and attempted to balance the needs of the cities, individual residents, community organizations and members of the development community.
When an issue has been discussed between Council Members, with input from special interest groups, resulting in a determination reflected in a proposed drafted ordinance, and the general public is provided a public hearing only after this has occurred, public concerns are much less likely to have any meaningful impact on the outcome.
Yet that is precisely what has occurred in this case. A number of cities and developers displeased with the results of the fair and open public process in November filed a lawsuit with the Western Washington Growth Management Hearings Board, as is their right. However, some litigants engaged in settlement discussions with County Council members (after declining to meet with the Planning Department) before the public had an opportunity to comment.
County Council is using the proposed ordinance to concede to demands of the cities based on the same information that had been previously considered. The public process referenced in, and cited as support for, the proposed ordinance consists of the public hearings held before the vote in November. (See page 4 of 21 of Ordinance AG-2010-0554C) click here to read Ordinance. In other words, the current County Council has substituted its judgment for that of the prior Council, whose determinations were informed by extensive review, analysis and community input.
While it is normal for Council to privately discuss litigation with their attorneys to ensure that opposing parties are not given a strategic advantage that would harm the public interest, no similar justification exists when Council discusses litigation settlements with the opposing party. In this situation, information provided to litigants is considered public information and even the appearance of “closed door” meetings and “backroom deals” is inappropriate.
Since settlement discussions occurred even before the public UGA Settlement Conference, I am concerned that the July 13, 2010 public hearing has been scheduled as a mere formality to comply with mandated state requirements. It does not appear that County Council has engaged in a meaningful public process as required by the GMA. Amending the November UGA boundaries without meaningful public input could result in the County losing its current GMA-compliant status for UGA review and update.
The Revised UGA Boundaries Reflect Poor Legal Judgement
As further discussed below, the proposed ordinance reflects an unjustified legal concession by the County that is not in public’s best interest. Moreover, the County’s handling of the lawsuit has been highly irregular (although not illegal). This raises a number of troubling questions that remain unanswered.
An April 5, 2010 letter from the litigants’ attorneys set out procedures they alleged would allow the County to expedite expansion of the November UGA boundaries. Council was advised that as part of a litigation settlement, it could “abbreviate procedures”, including those for public participation. However, the legal authority cited was based on passage of an emergency ordinance, and is not applicable to the Whatcom County proposal. Why would litigants in an adversarial proceeding provide what appears to be friendly assistance to the County Council regarding the process to follow for concession? Ignoring the fact that Council was provided with faulty legal advice, should not this be the role of the County attorneys?
Because the November boundaries reflect substantial staff analysis and public input, it is these boundaries that the County can most strongly defend against legal attack. In contrast, the proposed expanded UGA boundaries are more vulnerable to legal attack. The new boundaries were made only 8 months after the prior boundary determinations, are not based on new information, do not reflect the same degree of staff analysis, and contain almost no public input. Why is the County conceding litigation without any analysis of litigation risks or its likelihood of prevailing? This is a predicate condition for any type of lawsuit concession, yet there has been no public discussion regarding how the expanded UGA boundaries would impact litigation risks. Since this is only a partial settlement, the position of the remaining litigants is bolstered by the proposed ordinance.
Perhaps the County is relying upon the “helpful” advice contained in the April 5, 2010 letter from the opposing litigants indicating that County concession, and expansion of UGA boundaries, is justified by the legal presumption of correctness afforded the County with regard to it UGA boundary determinations. However, far from justifying concession, this is strong evidence of the County’s ability to prevail in the current lawsuit. Isn’t it in the public’s interest to proceed with litigation based on the County’s strongest legal position? This will not be accomplished if the proposed ordinance is approved.
Expanding The UGA Boundaries Increases Public Costs.
Studies, and experience, have established that private development is expensive, and that much of that cost is passed along to the public. Because impact fees do not cover the actual costs for roads, sewer, schools, and other costs generated from new housing developments, current taxpayers make up the difference. The community subsidizes this development through higher taxes or reduced public services. How much more can public services be cut while still maintaining a functional County government?
But these are only the most obvious increased public costs. By expanding UGA boundaries, the County contributes to sprawl. It loses more of its rural and agricultural land, creates greater environmental impacts and displaces more fish and wildlife and habitat. More urban growth increases existing problems with water quality and quantity. There are costs associated with all of these impacts, as well. The November UGA boundaries were a smarter growth choice, requiring greater emphasis on urban infill.
Expanding the UGA boundaries is likely to increase another expensive public cost, that of litigation. As noted above, the proposed ordinance affects only a partial UGA lawsuit settlement. Not only will remaining litigants proceed with the current suit in a stronger position, but new litigation is possible if the proposed ordinance is approved. This increases the resources necessary to defend the UGA boundaries, and as discussed above, leaves the County in a weaker legal position. The proposed expanded boundaries reflect “second guessing” prior boundary determinations, and fail to ensure that adequate Capital Facilities Plans exist for the expanded UGA areas, as required under the GMA. Finally, I believe that this ordinance is in violation of the County’s own procedures which require these types of revisions to be reviewed first by the Planning Commission.
There are also costs associated with the County losing its current urban area GMA compliance, including loss of grants and low interest loans. And frankly, how much sense does revising the November UGA boundaries make when the County is required to engage in another UGA boundary review in 2011? There is no reason that concerns being raised by the cities can not be properly addressed in less than a year.
Ignoring the public process, increasing public costs, and exposing the County to greater legal risks are not actions that benefit the public. For all the above reason, I ask the County Council to retain the November UGA boundaries.
Sincerely,
Wendy Harris
Bellingham resident
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