The Gristle
A permanent state of emergency
A PERMANENT STATE OF EMERGENCY: Like criminals crafting an alibi after the heist but before the cops break down the door, Whatcom County Council and what passes for its legal counsel had an inkling regulators would raid their gambling operation against the state’s Growth Management Act. They planted the “Fool” at the bottom of their deck for another dirty deal.
The Growth Management Hearings Board (GMHB) in December invalidated sections of the county’s comprehensive plan and ordered the county to get into compliance by the end of March with state goals to limit sprawl.
County Council has dithered and stalled for more than two years on adopting a plan that would define limited areas of more intense rural development (LAMIRDs). By corollary, and more irritating to the council majority, the plan would restrict development outside those areas as a means of limiting sprawl. Two years? County Council has fought these goals for two decades. The state found as a consequence sprawl threatens the character of Whatcom’s rural areas.
The hearings board order of invalidity startled council from their holiday nap because the order prevents the vesting of development applications in rural areas of the county the hearings board found were not compliant with GMA. Horrors. The county filed an immediate appeal to rescind the order… but did that legal strategy arrive as a directive of the council? Or is public policy shackled to sly legal maneuvering?
County Council grabbed at an emergency moratorium on subdivisions as a fig leaf to cover their obscene lack of progress in establishing limits on rural growth. Alas, the hearings board had already photographed and scoffed at council’s shriveled achievements.
“The county’s new emergency moratorium precludes acceptance of new applications for subdivisions and short divisions of property into parcels smaller than 10 acres,” county legal staff bluffed in a brief filed with the GMHB, an attempt to paper over this lack of progress and get the order lifted. But the brief was written, and filed, before the council had actually met to approve an official response to the state’s order, suggesting shadowy legal maneuvers do indeed lead public decision making.
The fig leaf is all the garment county government has. As the hearings board themselves noted in their order, “there is no dispute” that the county has failed to adopt a plan for its rural acres compliant with state law and has continued to allow land uses that are noncompliant. County attorneys, when they argued the matter last June, didn’t embarrass themselves in front of the GMHB by even bothering to dispute it.
Late in October, council did pass as an emergency ban, without any public discussion, on subdivisions in the county’s rural areas, confident in the hunch that a smackdown could arrive from the state before the end of the year. Under the laws of Washington, any emergency control enacted by government requires a public discussion within 60 days. County Code goes further, requiring that the nature of the emergency and the facts creating it are stated within the legislation. Yet nowhere was the nature of the emergency stated, as required by County Code.
Council scheduled the required discussion in December, sandwiched between their outrageous decision to upzone 770 rural acres at the very moment they were supposed to be stopping a loss of rural acres and an equally outrageous welfare program that allows developers to extend their expired permit applications for an additional two years. On this shit sandwich, council served a thin gruel, a six-month ban on subdivisions.
Early in the new year, council learned that moratorium was inadequate to mollify the state hearings board, addressing only a portion of rural development. Council hastily approved a second emergency moratorium in January, one ostensibly complete but with an important loophole the first ban did not have: Under the new ordinance developers are able to file legally binding site plans, and building permits may still be issued for a wide range of non-rural, noncompliant uses. The law permits what it is supposed to ban. And again, no description of the emergency.
The emergency, the former chair of the Whatcom County Planning Commission commented, “is patently false. Ironically, the period from December 22 to the present is the first time in five years that there is no conceivable ‘emergency’ arising from the possibility of a stampede of applicants wanting to vest their rights under the county’s old, noncompliant plan.”
That’s because the hearings board order of invalidity already prevents the vesting of project applications within the areas addressed by the “emergency” ordinance. The order has already kiboshed the county’s “authority” to ignore state law, so what’s the emergency and the reason for the ban? As council member Ken Mann notes on his blog, with an irony so sublimated it’s droll, “to demonstrate the county’s sincere efforts to reduce sprawl in the rural ares”—in plainspeak, to construct a lie county attorneys will use as a pry bar to try to lift the very order that finds the county’s “sincere efforts” garishly inadequate.
It’s like slamming on the brakes after you gun past a traffic cop, then stammering you were going the speed limit as his lights came on.
In approving the first six-month moratorium, newly elected council member Tony Larson declared it would also be his last, “as these things tend to become permanent.” We can forgive him his inexperience in this history, but his statement stands as a glaring admission that the council majority simply does not (want to) understand their situation. Yes, Tony, that is exactly what the state is asking the county to do—make permanent, restrictive land use decisions that are equitable to many interests and that end piecemeal sprawl.
Fools and emergencies don’t mix.
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