Instruments we have created
INSTRUMENTS WE HAVE CREATED: Empowering as the Preamble to the U.S. Constitution is, the state constitution opens more bluntly.
“All political power is inherent in the people,” defiant early Washingtonians declared, “and governments derive their just powers from the consent of the governed.” Voters, when they enacted the state’s public disclosure laws four decades ago, made it even more plain: “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments they have created.”
Informing the public was on Carl Weimer’s mind last week as the Whatcom County Council member wondered aloud under whose authority a certain legal strategy was crafted, since to his knowledge it had not been authorized by the council. The strategy seeks to overturn a ruling by a state hearings board that the county is out of compliance with the goals of the State of Washington. Deputy Prosecutor Karen Frakes, the council’s legal representative, replied she had filed a motion to rescind the ruling through her powers of attorney and independent office.
Interesting question. Illuminating, but not entirely satisfying answer. Listeners learned something.
Council member Barbara Brenner bristled at Weimer’s public questioning of Frakes. “She is not on trial here,” Brenner complained. Brenner missed the point, as does—routinely—the rest of Whatcom County Council.
Open public process is a trial, a test of the rigor of arguments and policy held in front of a public that holds an inherent, unsurrendered right to know. The public watches, learns, judges.
Weimer’s questions concerning authority and actors were not only legitimate, they reached the heart of what the public needs to understand most about that authority and those actors: Even our elected representatives struggle in a sea of darkness about county motives and actions.
The public knows almost nothing about the state’s order against the county, other than what’s been reported in the media. That’s because county government has not explained the order in public, to the public. Council met Jan. 4 in closed session to discuss the order, which invalidates sections of the county’s comprehensive plan for rural areas and suspends the vesting of development rights in those areas until the county comes into compliance with state goals; they discussed it again in closed session Jan. 11. In their most recent meeting Jan. 25, council discussed a temporary ban on subdivisions, after voting two times for such a ban as an emergency action, but they again failed to explain to listeners why they were enacting the ban and why it rose to the level of an emergency.
That’s bad policy. That’s bad government. Because the state’s order is a very big deal for the county and its residents.
The order was an aggressive move by a state board notorious for its nonaggression, deferential to county authority and slow to find fault, which makes its issuance almost breathtaking. The order invalidates not only county land use policy in rural areas but the “don’t tread on me” thinking of a generation of county leadership. If County Council thought the state was just going to dry up, shut up, pack up its silly Growth Management Act and slink away, they just got a sharp kick in the temple.
The legislative and legal history of the state’s order is consistent and unambiguous. It’s a wonder (and more bad policy) Whatcom County government even wastes resources battling it.
Plainly stated, the state’s goal is to contain the built environment to roughly what it was in 1990, at the passage of the Growth Management Act. In 1997, additional tools were offered to help better define and protect rural lands and uses. In 2005, the state’s Growth Management Hearings Board found, with county attorneys themselves conceding the facts, that the county’s plan for rural areas substantially interfered with the goals of GMA. The hearings board findings were upheld in a December 2009 ruling by the Washington State Supreme Court.
Justices wrote, “We agree with the Court of Appeals that, as the Western Washington Growth Management Hearings Board concluded, the county must revise its comprehensive plan to conform to 1997 amendments to the GMA that set out criteria for establishing limited areas of more intensive rural development (LAMIRD) and rural densities.”
Seeing this decision coming, the Whatcom County Planning Commission in late 2009 kicked out a plan that, while imperfect, did establish LAMIRD criteria. Their recommendations were scoffed at and ignored by a council majority.
County Council, which should have spent 2010 adopting a LAMIRD plan or devising one of their own, instead wasted the year in a do-over giveaway of development rights on lands bordering Whatcom’s cities, occasionally trumpeting defiant, fatuous statements that they would never agree to the rules of the state board and courts—a defiance that may cost county taxpayers millions of dollars in sanctions, penalties, and legal and lost opportunity costs. What a council majority is defending is some vague principle of sovereignty and individual property rights, which is itself larded codespeak for the plunder and looting of Whatcom’s natural resources and open space for future generations.
Theirs is a pursuit that evidently can only occur in a fiercely anti-democratic environment of backroom deals and evasive legal maneuvers, creating the nonresponsive and wasteful kind of arrogant, corrupt government most of these people campaigned to end.
Because their pursuit fits superficially into a culture war narrative playing on the national stage, council’s misdeeds receive senile support from conservatives: Hippies get punched, therefore everything’s good! But council’s misdeeds are far from conservative, or populist, and are instead blisteringly corrosive to what conservatives and populists claim to hold dear.
According to agricultural census, an ag land area larger than Lake Washington has been lost to productive use while the GMA debate has raged in Whatcom County. The market value of crops sold out of the county, year after year, is nearly $300 million annually, the most productive yield in Western Washington and among the top 3 percent nationally; and while the market value of the land upzoned and flipped once for development is higher, the flip is not a sustainable enterprise. The county gets a Last Harvest of brushfire construction and real estate transaction, but the productive use of the land is extinguished. A primary, working economy is laid waste, replaced by bedroom communities and secondary wages—a balance sheet paid for by the externalities of traffic, congestion, pollution and corruption of our public institutions.
No thinking conservative should tolerate this.
A tip of the pen to Get Whatcom Planning for this week’s column title.
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