The Gristle

Outliers and Outlaws
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OUTLIERS AND OUTLAWS: An emerging meme among several of this year’s candidates for county office is the notion that they’re seeking election to protect individual homeowners and property owners from “special interests.” Council President Kathy Kershner declared this as she sought the endorsement of Whatcom Democrats.

“We’re not just protecting developers,” Kershner explained to Democrats. “We’re protecting folks just like you, who’ve worked your whole life, invested in your property, counted on it for your retirement, and then you turn around and find out that it’s worth nothing,” she emphasized. “We’re being challenged and sued by special interest groups who don’t care about all of the people in Whatcom County.”

Council member Bill Knutzen and Planning Commission Chair Michelle Luke expressed similar declarations at the recent Water Supply Symposium. Knutzen, in particular, went out of his way to characterize his work as an epic struggle protecting rural homeowners against preying and uncaring “special interests.” Luke complained of “an abundance of special interest groups, attorneys, and regulations that prevent solutions.”

Where to start? At the center of these claims is the blind conceit that everyone who bought property as investment merits an upzone. Buildable property purchased at R5 is still buildable… at R5, the zoning in place when it was purchased. With sufficient water, you can build a home there; you cannot build (and flip) 100 homes there. Nearly all of the council’s remaining debate concerns a refusal to reverse themselves on upzones that never should have been granted in the first place, many created after the passage of the state’s Growth Management Act that actively discouraged such practices. Their declarations are leavened by assertions they’re protecting “Mom & Pop,” but the bulk of unresolved matters involve properties held by agents like Gold Star Resorts. But more: These declarations must be understood as code, an advocacy of continuing lawlessness in county compliance with state goals.

The folly of that lawlessness was driven home last week when, after they’d spent $50,000 of your money on a pricey out-of-town attorney to continue to argue the merits of the Rural Element of the county’s comprehensive plan, Whatcom County Council again received a beatdown by the state’s Growth Management Hearings Board, losing on nearly every assertion.

The board found the county’s plan protects neither rural character or surface water and groundwater resources. Whatcom County, the board found, was heedless in directing development into areas with available water, authorizing instead a proliferation of private wells that draw down underlying aquifers and reduce groundwater recharge of streams. Roughly a third of these wells are contaminated with nitrates exceeding health standards, the board found. The county’s fouled beaches are unfit for shellfish harvest.

“The causes range from increasing urbanization, to malfunctioning septic systems, agricultural runoff, and removal of riparian vegetation,” the board commented. “The GMA requires rural character to be protected by measures governing development that provide patterns of land use consistent with water resource protection.”

A central organizing principle of GMA is to constrain the state’s built environment to what existed when the law was crafted in 1990, a crude yardstick to limit sprawl. Meeting that goal would direct future growth into areas that already have a clear, established and senior right to water: Incorporated cities. Failure to meet that goal ushers in the water crisis of the current hour, with hundreds of wells without a water right drawing down the supply from those who do have a water right.

The state’s “exemption for private wells does not exempt the county from complying with GMA’s mandate to protect critical aquifers,” the board commented. “Similarly, the exemption does not exempt Whatcom County from complying with the GMA rural element requirements.”

The state’s growth management laws are modeled after a similar initiative in Oregon, with one important distinction. The Oregon model requires counties to adhere to top-down directives from the state. Washington lawmakers preferred to allow counties more control over their land-use decisions, subject to oversight by an appointed state board and the courts. The approach allows an organic, finer grained local control over outcomes, but it has also ushered in a bitter defiance of state goals that has paralyzed Whatcom County government for more than two decades.

Initial challenges to the counties’ plans under GMA come not from the state, but from citizens. Thus, the “special interests” and “outliers” groused about by candidates like Kershner, Knutzen, and Luke are, in fact, neighbors and voters. These complaints are heard by so-called “distant boards” and courts, without which there would be no redress of the destructive policies of county government. A complaint-driven process is inherently litigious, particularly when—as GMA bakes right in—”the burden is on petitioners to overcome the presumption of validity and demonstrate the challenged action taken by the county is clearly erroneous.” A thick-headed County Council, rejecting a mediated settlement, makes it even more litigious. Therefore, small wonder citizens band together in “special interests” to defray legal costs—it’s their only chance of prevailing.

A final point about the “special interests” these candidates find so deplorable: They are largely the same groups who filed detailed and intelligent concerns during the scoping process for the environmental impact statement for the proposed Gateway Pacific Terminal coal pier at Cherry Point. So remember, when you go to the polls in November, the contempt these candidates have already showered on these groups and their testimony; they’ve essentially promised to ignore these groups as they respond to other concerns.


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