Wednesday, January 16, 2013
CODE SCRUB: Hard to clean house when the sewer is still backing up.
At the start of this year, the Washington Growth Management Hearings Board issued an order, invalidating the rural element of the county’s comprehensive plan for growth. While the board acknowledged county policymakers have made progress in achieving state goals and coming into compliance with state law, the board continued to find deficiencies in the county plan. Among them, the board found incongruity in the county asserting that rural development shall be governed by county code while the code itself is riddled with soft equivocations, “permissive with words such as ’should be’ and ’where practicable,’” the board noted.
“Permissive language, rather than mandatory,” the board observed dryly, “make these measures largely aspirational.”
The guiding language the board referenced is contained in Title 20 of the Whatcom County Code.
“The purpose and intent of the title,” we’re told in the title’s preamble, “is to further the goals and policies of the Whatcom County Comprehensive Plan by providing the authority for and procedures to be followed in regulating the physical development of Whatcom County, through coordinating the execution of both public and private projects with respect to all subject matters utilized for developing and servicing land. The objective of this title is to assure the highest standards of environment for living, and the operation of commerce, industry, agriculture and recreation; and to assure maximum economies in order to conserve the highest degree of public health, safety, morals and welfare.”
Inherent in achieving these objectives is that the explaining language is consistent and clear.
Whatcom County planners have long known that Title 20 is not consistent and clear, and they’ve long advocated for a comprehensive review of the code to achieve that goal. Similarly, Jack Louws underlined it as an administrative objective when he ran for the office of County Executive in 2011.
In December, Louws began the process, sending a letter to a selected ad-hoc advisory committee to review Title 20 and recommend changes that could help clarify the meaning and intent of county code. Louws said there are sections of Title 20 that are clearly, obviously in conflict with one another and predicted the committee might quickly identify those. His goals, he said, were procedural, to make county development codes more clear, consistent and simpler.
The committee will hold its first meeting later this month. Yet the timing of this effort—with sections of existing code found deficient by GMHB, and county policymakers resisting (for years) to make it compliant with state law—and even the make-up of the review committee are cause for concern.
“‘Code scrub’ is something we were talking about while I was working at the county,” said former planner Kate Blystone, now executive director of Whatcom Futurewise. “Generally speaking, it is what it sounds like—code cleanup.
“Every day when county staff is using the code for reference or to review applications they find little inconsistencies that they then have to make an administrative call about. The idea of the code scrub is to get rid of those little inconsistencies. It’s done everywhere, but typically it’s done by staff and brought forward in a single ordinance. I believe that was the original intent when we were talking about it while I was at the county. Staff would just go through the code and clean it up.”
Instead, Louws selected a committee that includes some of the most outspoken and fiercely defiant critics of state growth laws and consultants to development interests. Those voices include the mischief-making Citizens Alliance for Property Rights and two of the hardest heads on the Whatcom County Planning Commission. Perhaps more disturbing is who the committee does not include: legal counsel who might advise on the peculiarities of law. The county Legal department has not been charged with preparing a first draft or with providing oversight of the committee’s proposals.
In brief, it does not sound like a committee destined to guide the county into speedy compliance with state growth goals. As a taste of what may be in store, CAPR representative Roger Almskaar advised a council committee last March that the code scrub process could be used to relax, rather than strengthen, certain development standards.
“Changes in the law may be solely cosmetic—removing duplicate provisions, for example—but most changes in words have results,” land-use attorney and former planning commissioner Jean Melious warned. “In other words, they change the law. If you take out a provision that ‘conflicts’ with another provision, that can have a profound effect on the law. The ‘conflicting’ provision may provide safeguards or modifications that will no longer exist if the ‘conflicting’ regulation is no longer in the law.”
“I feel a little alone in the group as the only nonprofit representative, let alone the only person from the environmental community,” Blystone admitted.
“Staff has talked about wanting to rewrite Title 20 for years, but this process is different, an intermediate step,” she said. “The code scrub is meant to remove tiny inconsistencies in the code and make the code clearer, not do wholesale changes to sections that folks don’t like. I’m a little concerned that without clear direction to the advisory committee, we may have some ‘scope creep.’ I’m steeling myself for spotting changes that are outside of the scope of this group and stopping them before they get traction. I’m hoping that my fellow committee members are as committed to the narrow scope as I am.”