Proposal to Expand Birch Bay UGA Prioritizes Private Profit

Tonight is the public hearing before the County Council, 7 P.M, Council Chambers, on the proposed ordinance to expand UGA boundaries. Please send County Council an email and/or show up tonight to tell the Council how you feel about their attempt to ignore GMA requirements and the public process to appease the demands of the development community.

Below is a comment I submitted to County Council regarding the Birch Bay UGA expansion.

BIRCH BAY UGA BOUNDARIES SHOULD NOT BE EXPANDED

Proposed UGA Repudiates Watershed Based Planning
Whatcom County has failed to act on a unique opportunity to create UGA boundaries that reflect an innovative, comprehensive watershed-based plan for land use, stormwater management and natural resource protection/restoration. The information necessary for watershed-based urban land use planning is currently available as a result of the Birch Bay Watershed Characterization and Watershed Planning Pilot Study (‘the Pilot Study”) and subsequent Birch Bay Watershed Action Plan (“the Action Plan”).

The proposed ordinance to expand the Birch Bay UGA boundaries ignores the County’s ability to adopt a comprehensive watershed management plan. It also understates the purpose of the Action Plan by referencing it, briefly, as a plan “to protect aquatic resources.” (Paragraph 21, Page 7 of 21). It fails to indicate whether this is an area that was designated for restoration, protection or development as either a high, medium or low priority under the Pilot Study, and therefore, the public was not provided relevant information or evidence that County Council considered facts necessary to make a GMA-compliant determination.

The Pilot Study was initiated by the County and funded through state and federal grants. This included an “Estuaries Initiatives” grant from EPA to implement watershed based land use planning in Birch Bay. The intention was to create a watershed management plan that would integrate and address the planning requirements of the GMA and the SMA and the needs of the community. The goal was to use the results of the Study and Action Plan as a role model for the rest of Puget Sound.

The Pilot Study reflected the collaborative efforts of the County, EPA, Ecology, WDFW and Puget Sound Partnership. It reviewed and incorporated prior Birch Bay planning efforts, including the Whatcom County Comprehensive Plan, the Whatcom County Comprehensive Water Resources Plan, the Birch Bay Community Plan, the Birch Bay Comprehensive Stormwater Plan, the WRIA 1 Salmonid Recovery Plan, the Salmonid Habitat Restoration Strategy, the Shoreline Inventory and Characterization Report, and the Shoreline Restoration Plan.

The Birch Bay watershed was analyzed based on a detailed review of the ecological functions of 32 delineated sub-basins. The results were used to create prioritized areas within the watershed for development, protection or restoration.
Management goals based on sub-basin vulnerability were discussed in the Pilot Study and reflected in Table 7-6 on page 76-79.
http://www.whatcomcounty.us/pds/naturalresources/specialprojects/pdf/birchbay_pilot_study_finalclean.pdf. (Pilot Study)

See also: http://www.ecy.wa.gov/programs/sea/pubs/0506027/0506027.pdf
Protecting Aquatic Ecosystems By Understanding Watershed Processes: A Guide for Planners, Ecology Publication #05-06-027, June, 2008, pages 38-43.

While the Pilot Study analyzed and characterized watershed processes, it was understood that the planning component, which recommended specific solutions to protect and restore ecosystem health, would be implemented through the Action Plan adopted by the County:

These are the first of several steps in a multi-step process to manage natural resources in the context of land use planning. The first two steps- analyzing (or characterizing) the landscape and its wetlands, streams, and wildlife, and prescribing solutions- are addressed via this pilot study. The second two steps-taking actions and monitoring results- are dependent upon formal adoption and implementation of a watershed plan by Whatcom County and the residents and stewards of the Birch Bay watershed.
Pilot Study, Page 8, Id.

Unfortunately, the Pilot Study was not used to adequately inform an Action Plan regarding Birch Bay UGA boundaries in November, and the current proposed expansion of the UGA boundaries fails to address this deficiency. Incorporating the Action Plan into the Birch Bay UGA boundary determination would help protect and restore our natural resources, and serve the interests of the development community by streamlining the regulatory process, including review and permitting.

Ignoring the information available through the Pilot Study may have important and negative consequences for Birch Bay, an impaired shoreline of statewide significance, and a Shellfish Protection District. Until water quality issues are addressed, through the type of planning process that was intended to follow the Pilot Study, increased urban growth will only exacerbate water quality issues. This suggests that expanded UGA boundaries in Birch Bay may not be compliant with the GMA or SMA.

Moreover, by ignoring the results of the Pilot Study, which was funded through state and federal grants, the County risks its ability to obtain future grants. The state and federal government may deny further grants because the County failed to follow-through on the planning actions that were the intended result of the Pilot Study.

No Factual Basis Exists to Expand the UGA
The proposed ordinance does not contain information that supports increasing the November UGA boundaries. The 2004 Birch Bay Community Plan, submitted as the current plan in June 2009, did not request expansion of UGA boundaries. The County Executive recommended reducing the Birch Bay UGA boundaries. (Paragraphs 13 and 14, Page 5 of 21.) Thus, the proposed expansion is not at the request of the public or local government staff, but at the request of private property interests.

As pointed out in the Staff report for the ordinance, the UGA adds 17 acres, (although relying on the Assessor’s map rather than GIS information increases this by another 4 acres) which results in a surplus of 10 (or 14) acres. In other words, the County Council is knowingly recommending oversized expansion of the November UGA boundaries, despite having previously been non-compliant with the GMA for exactly this reason. County Council needs to justify how this serves the public interest.

The ordinance further indicates that Birch Bay has not secured a water supply for the 20 year horizon required for UGA planning. RCW 36.70A.110(2). Birch Bay has a contracted water supply only through 2015. Additional water sources for the future have been “identified”, but have not been secured. (Paragraph 20, Page 6 of 21.) Birch Bay’s need for additional water is underscored in the 20-Year  Capital Facilities Plan adopted as part of the November UGA revision process, Appendix E, Page 4 at http://www.co.whatcom.wa.us/pds/2031/pdf/9a.AppendixE-CFP_120109.pdf

Under the GMA, creation and expansion of a UGA in an unincorporated area assumes the intention to either incorporate, or to join an existing city. Because Blaine rejected the possibility of annexation, incorporation remains the solution for provision of urban services in Birch Bay. Birch Bay completed a feasibility study that indicated that incorporation was financially feasible. However, the County Capital Facility Plan is premised on the understanding that Birch Bay will not incorporate. Were Birch Bay to incorporate, the County would lose 19 million dollars over a 20 year period, as set out in Appendix E. Because expanding the Birch Bay UGA boundaries appears to be at odds with the County’s Capital Facilities Plan, which has GMA-compliance implications, this issue should be resolved before the proposed ordinance is approved.

Finally, provisions within the ordinance are confusing and contradict the proposal for expansion. Paragraphs 10 and 24 of the ordinance indicate that population growth for Birch Bay has slowed and should be reduced. Yet the proposal results in addition growth figures of 584 without any explanation or substantiation. Paragraph 24 notes that construction has slowed and Paragraph 28 reflects a surplus of employment land supply. However, Paragraph 25 concludes that allocation of additional growth is warranted based on historic growth rates. I can not reconcile these various paragraphs with a proposal to expand the Birch Bay UGA boundaries.

For the reasons set forth above, expansion of the Birch Bay UGA is unwarranted and does not serve the public interest. The proposed ordinance lacks factual and legal support.

Wendy Harris
Bellingham Resident

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