The Gristle
Unforced errors
UNFORCED ERRORS: Whatcom County Council “conservatives” continue to waste taxpayer dollars as they attempt to undermine county laws the state repeatedly finds reasonable and well grounded. As they broke for their summer recess, County Council authorized a payment of $40,000 to gravel industry attorney and frequent critic of the county’s Comprehensive Plan for its resource lands, Lesa Starkenburg, to help fumbling county attorneys continue to further trash the rural element of that comp plan.
Paying foes and critics to help craft a defense of one’s work is the latest particle decay in the radioactive folly downwind of the County Council’s decision to open its comp plan to wholesale revisioning by land use attorneys with lawsuits pending against the county.* The council majority has collaborated with this effort to the point of allowing these attorneys to re-draft entire sections of the plan, bascially strengthening their clients’ claims against the county and its voters and taxpayers.
In June, council attempted to paper over yet another unforced error and ethical/legal lapse when they called back Seattle land-use attorney Sandy Mackie to redeliver a rehash of a presentation he’d earlier delivered to private land speculators. In the audience then was a majority of County Council members who could not tear themselves away, in deference to the state’s open meetings laws, as they listened to circuit rider Mackie mock and moan the deficiencies of the county’s shoreline plan.
The question is raised, are the county’s plans—as originally drafted, declared and adopted—deficient and in need of revision?
The state doesn’t think so.
As council was shelling out money to further entangle their planning follies, the Washington State Supreme Court upheld findings of the lower courts, agreeing that the process of creating the county’s shoreline master plan (SMP) was sufficiently robust and correct under state guidelines that the plan rises to a state action. The high court’s finding made nonsense of much of what Mackie delcared (twice) about council’s grand powers of local control in the management of its shorelines.
In more reasonable times, Whatcom County made considerable strides in creating its SMP, setting a pace beyond that of other counties, and crafting a plan the state Dept. of Ecology proudly considered a model for other shoreline plans around Puget Sound. Due to its importance as an early model, Ecology took a strong hand in its creation. The work was immediately challenged by the Building Industry Association of Whatcom County, who whipsawed the property rights alliance into a frenzy.
“The plaintiffs asserted that because Whatcom County had developed its proposed shoreline master program at the local level, final approval of the county’s updated shoreline program was a local decision,” Ecology explained in a press release, hailing the courts’ ruling. “Plaintiffs claimed some of the requirements in Whatcom County’s shoreline program would violate state tax law generally prohibiting local governments from imposing certain taxes or fees in exchange for development rights.”
Court after court found no merit in the BIAWC’s arguments.
”Although Whatcom County engaged in a lengthy process of formulating its SMP—the county consulted local groups potentially affected by the new regulations, held public meetings, and solicited comments—this process did not intrinsically make the SMP a product of local government,” the justices noted. “The involvement of local jurisdictions in the SMP process is a benevolent gesture by the state. Ultimately, state law directed Whatcom County to act by a certain date, created the overarching framework with which Whatcom County’s SMP must comply, and left final approval of the county’s SMP in the hands of Ecology. Although Whatcom County initially adopted its SMP by ordinance, this was merely a perfunctory step,” they argued, that led to its final approval by the state agency.
The analog applies, in varying shades and degrees, to all of the county’s planning and growth documents—a process of data collection and adoption of policies that are required by state law, that are then reviewed and ratified by the state. While Ecology took a strong hand in the creation of Whatcom’s SMP, the same might be said of review of the county’s planning documents by the state’s Growth Management Hearings Board, which continues to check the deficiencies and sufficiencies of the county’s work. A broad reading of the Supreme Court’s opinion of the state’s “benevolent” role in allowing the county to help further state goals strikes at the heart of 20 years of fairyland make-believe in Whatcom County government about “local control” in planning efforts: We have local control in support of state goals, not to thwart or defy state goals.
“The county’s actions are not boundless,” the GMHB has plainly and repeatedly asserted in findings upheld by the courts. “Their actions must be consistent with state goals and requirements.”
* The track record of these offered revisions is not compelling. In three instances reviewed by the GMHB this year, all were substantially invalidated by the board. Ferndale’s UGA was determined by the board to be oversized as it was described in revisions supplied by private practice attorneys. A Birch Bay upzone offered by applicant attorneys did not properly consider wetlands and floodplains, the board found in July. In August, they found county efforts to revive expired building applications, immobilized by economic downturn, improper. In their dry language, the board “was stuck by examples of applications that could be renewed under the ordinance”—some of these zombie projects had lain dormant for 20 years and the county proposed, as slyly suggested by applicant attorneys, they revive under ancient environmental standards, in essence a “Get Out Of GMA Free” card slid under the door of a bad economy. The estimated direct cost to taxpayers of these unforced errors is in excess of $200,000, to say nothing of indirect and lost opportunity costs of redoing work done right the first time, then redoing it again.
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