Everything new is old again

Tuesday, June 1, 2010

EVERYTHING NEW IS OLD AGAIN: In February, Whatcom County Council renewed its temporary ban on the sub­division of lots in the Lake Whatcom watershed to parcels smaller than five acres. When they agreed to extend the ban for the umpteenth time in 2009, it was with the understanding that the county’s work on urban growth areas and rural land use would be largely completed and their decisions on the fate of these lands might be made permanent. But with new council majorities comes old land use ideas, and a harried council indicated in February they wanted to give the subdivision matter more attention later in the spring.

The recommendation of planning commissioners and staff (as well as the City of Bellingham and numerous and diverse advocates of lake protection) to County Council has been that they should make the subdivision ban permanent.

A point about that: The owners of these lands can still build single homes on lots larger than five acres; they simply cannot carve their parcels down into smaller lots and flip them to development interests for a quick profit. This struck a particular faction of the council—most vocally among its newest and least experienced members—as sacrilege to property rights even though the rights of these property owners to use and profit from their lands as they currently exist has not been infringed or reduced. County taxpayers must compensate these property owners for their phantom profits, this faction avers; the unspoken portion of their syllogism is that since the county has no revenues to provide such compensation, not only should the ban not be extended, it should be lifted.

Council on May 25 failed to make the ban on subdivisions in the watershed permanent.

“My understanding is that next week we will try again to pass the permanent ordinance, and if it fails to get the votes the temporary moratorium will still be in place until the end of August,” Council member Carl Weimer explained. “To my knowledge no one has floated the idea of repealing the temporary moratorium immediately, although nothing would surprise me at this point.”

“We’ve looked at this, and there’s not a lot the city can do” to prevent a lifting of the ban, Bellingham Mayor Dan Pike admitted. Since allowing a temporary ordinance to lapse is not subject to veto, there’s not much the County Executive can do, either. When administrations can’t act, citizen involvement becomes critical.

At the time the moratorium was first proposed in 2001, procedural errors created a narrow opening through which property owners were able to file hundreds of development applications with the county planning department. If past is prologue, if the moratorium expires there’ll be another stampede and dozens of additional development applications again flooding the planning department. And while estimates are that fewer than 200 additional homesites might be advanced in this new wave, what’s worse is they may be built using the obsolete development standards that existed before this whole debacle began.

Multiple legal challenges brought by a single law firm claim that any new development applications are vested to the land use ordinances in effect at the time of the application, Planning Director David Stalheim explained to the County Executive in April. Stalheim filed his explanation in response to pressure from that same law firm to have the non-pliant planning director guillotined from the county payroll. Under fire and with no support from the administration, Stalheim left the planning department in May.

“This vesting challenge means that any new building or development permit submitted today on a lot created by a short plat application submitted in 2002 in the Lake Whatcom watershed would be reviewed based on outdated critical area, shoreline, stormwater and seasonal land clearing restrictions,” Stalheim wrote. “In fact, no seasonal clearing restrictions would be in place for this development activity and limits on impervious surface would not be enforced in the Lake Whatcom watershed,” as those rules did not exist at the time these applications were received.

“The attorneys also anticipate they will abide by less stringent wetland buffer standards than what are in existence,” Stalheim continued, “thus allowing construction of larger residences.”

Attorneys always argue the interests of their clients. That’s what they’re paid to do. The question is why public officials would lay aside constellations of competing concerns, even the recommendations of the county’s own employees, in order to agree unequivocally to these attorneys’ entirely one-sided demands.

County Council dropped the moratorium in place in response to growing concerns about the condition of Lake Whatcom in order to create time for policymakers to develop appropriate rules for land clearing, stormwater controls, transfers of development rights and similar measures that might lessen the impacts of development in the municipal watershed. Equally important, the moratorium helped “calm the waters” of phosphorous-laden sediments entering the lake in order to provide a baseline that might allow the Dept. of Ecology to more accurately complete its study of the impacts of urbanization on this impaired water body.

Lifting the moratorium before the vesting issues, the rules by which these homes may be built, are resolved would simply negate years of scientific study, public testimony and legislative deliberation, turning back the clock on a decade of land use planning for Lake Whatcom.

The conclusions of Ecology’s scientific study, completed in 2008, found the watershed was already substantially overbuilt and in need of retrofit, so it is difficult to imagine how additional development, using outdated and discredited development practices, might address the state’s concerns.

The director of Ecology’s field office in Bellingham, Richard Grout noted, “Our position continues to be that not enough is happening, and it’s not happening fast enough. We see the lake continuing to deteriorate, and not enough is being done to turn that around.”