Compliance, Noncompliance and Invalidity in Whatcom County
Permalink +Mon, Jan 30, 2012, 12:16 am // Wendy Harris
The recent Governors Point decision by the Growth Management Hearings Board adjudicated over 50 issues pertaining to Whatcom County’s rural planning policies and land use provisions. Findings of compliance, noncompliance or invalidity provide quantitative measurement of the County’s success (or lack thereof) in meeting Growth Management Act (GMA) requirements. If the County's performance was graded under this standard, it would qualify as worse than abysmal.
Under the GMA, municipalities must periodically review and update planning policies and land use provisions. Revisions enacted by a municipality are presumed to comply with the GMA without any further review. This presumption can be overcome only when a timely appeal is filed with the Growth Management Hearings Board, and only for the specific provisions that are challenged. (It is this GMA provision that results in numerous Hearings Board appeals on a large range of issues.)
When the Hearings Board adjudicates GMA appeals, it is determining whether or not a municipality’s planning actions comply with GMA requirements. The municipality prevails, in full or in part, if the challenged provisions are determined to be GMA compliant. The appealing party prevails, in full or in part, if the challenged policies are determined to be noncompliant with the GMA. Noncompliant provisions remain in effect but must be corrected before a “compliance date” established by the Hearings Board.
For noncompliant actions, the Hearings Board can make an additional finding of invalidity, but does so only in exceptional instances. A finding of invalidity is appropriate when municipal provisions are noncompliant, and additionally, would harm GMA goals if they remained in effect. Because municipalities revise policies and land use provisions in order to remain GMA compliant, it is unusual for these same revisions to contradict the purpose and intent for which they were made. In other words, if a finding of noncompliance is made, a municipality has failed in its planning efforts. If a finding of invalidity is made, a municipality has failed miserably in its planning efforts.
Moreover, the GMA makes it difficult to successfully challenge a municipality’s actions. Municipalities are granted broad discretion in determining how to comply with the GMA, and their actions are afforded deference. Parties who appeal to the Hearings Board carry a high “burden of proof”, which reflects the amount of evidence required to prevail. A separate evidentiary burden exists for each GMA violation asserted.
In most civil cases, the burden of proof is met through a “preponderance of the evidence” establishing that something is more likely to be true than false. In a Hearings Board appeal, it must be proven that a municipality’s action in meeting GMA goals was “clearly erroneous.” The evidence must leave the Hearings Board with a firm and definite conviction that the municipality committed a mistake, even after considering the broad discretion and deference it is granted.
A municipality, on the other hand, has no burden at all. If it shows up and does nothing, it will win if the appellant does not meet the burden of proof. For example, if the appellant’s evidence is strong, but does not prove clear error, the Hearings Board will issue a finding of compliance. This makes it entirely possible for a municipality to violate the GMA and still win an appeal. Stated another way, a finding of compliance is not a guarantee that the municipality has complied with the GMA, but a finding of noncompliance is overwhelming evidence that it has not.
Even after prevailing in an appeal, obtaining optimal compliance can be difficult. A municipality must correct its noncompliance by a certain date and its corrective actions are reviewed during a subsequent compliance hearing. However, at the compliance hearing, the municipality is again entitled to the presumption of correctness, and the appealing party must again meet a “clearly erroneous” burden of proof. In the overwhelming majority of cases, the compliance hearing resolves in favor of the municipality.
As previously mentioned, the Hearings Board can also find noncompliant municipal actions to be invalid, but the standard for imposing invalidity is extremely high. The noncompliant provisions must be harmful enough to substantially interfere with the municipality’s ability to achieve GMA compliant planning. This requires a serious risk that significant development will vest under noncompliant provisions before a municipality can bring its provisions into compliance.
There are two important consequences to a finding of invalidity. First, land use applications involving invalidated provisions can not be processed, subject to statutory exceptions, until the noncompliance is cured. Additionally, for the first time, the burden of proof shifts to the municipality. The finding of invalidity can not be lifted until the municipality proves that it has become GMA compliant.
The Governors Point decision (which included Futurewise and the City of Bellingham as an appellants) issued on January 9, 2012 is the third finding of invalidity made against Whatcom County in the last year and a half! Yet the County would have us believe that it did nothing wrong because it prevailed in a majority of challenged issues. As the above analysis establishes, losing on any issue is meaningful, and being subject to a finding of invalidity (never mind three) is inexcusable.
It is clear that Whatcom County has been willfully failing to enact the land use policies and regulations required under the GMA, and in some cases, has enacted provisions that are harmful to GMA goals. Any statement contrary to this obvious fact is an attempt to distract the public from realizing that public funds have been squandered in an improper attempt to promote the interests of developers. I will be monitoring County Council Members and staff who may attempt to present this as spin.
If you wish to learn more about the specific issues that were appealed, they have been well detailed on Get Whatcom Planning posts by Jean Melious and David Stalheim. http://getwhatcomplanning.blogspot.com.
Comments (3)
To add a comment, click here to login or register.
Todd Granger // Mon, Jan 30, 2012, 11:13 am
And Wendy,
“Why can’t the County Prosecuting Attorney Office figure it out?”
He stated clearly he was “dumbfounded” in that recent double ditch murder trial?
What does “prosecutorial misconduct” mean in the 4th Corner?
“Mirror, Mirror on the Wall…
P.R.R.V.A. v. Whatcom County…
“where the record shows invalidity…”
Vote Dunce Cap Dave!
Dick Conoboy // Wed, Feb 01, 2012, 9:24 am
The descriptor “kafkaesque” comes to mind. Franz must be smiling.
Todd Granger // Sun, Feb 05, 2012, 9:57 am
But Franz, “... has not met its burden of proof pursuant to RCW 36.70A.320(2).”
Nor unlike, Franz Joseph who spent his early reign resisting constitutionalism in his domains?
Whoops!
Will Lake Whatcom Watershed Reconveyance Be Approved?
Mon, May 21, 2012, 3:14 pm // Wendy Harris
After years of debate, the County Council may be requesting that DNR approve the Reconveyance0 comments
Last chance, file for PCO
Fri, May 18, 2012, 11:27 am // Riley Sweeney
A short plea for public involvement from Riley
0 comments
DRONES!
Thu, May 17, 2012, 10:43 am // Tip Johnson
Footage overlooking the Fairhaven area4 comments; last on May 21, 2012
Cascadia Weekly again on target with the Port
Wed, May 16, 2012, 4:15 pm // John Servais
In today's Cascadia Weekly, Tim Johnson analyses the Port Commissioner meeting and the shenanigans of Walker and Chmelik.0 comments
City Staff Lacks Impartiality On Dock Closure
Tue, May 15, 2012, 7:32 pm // Wendy Harris
A City staff memo on the Bloedel dock closure reads more like an advocacy brief0 comments
Port Commission Expansion to be on November Ballot
Mon, May 14, 2012, 6:07 pm // John Servais
Port Commissioners McAuley and Jorgensen voted to put on November ballot the question of expanding commission from 3 to 5 members.5 comments; last on May 15, 2012
Cascadia Weekly Rips Port - Urges 5
Wed, May 09, 2012, 6:11 am // John Servais
Today's Cascadia Weekly rips the Port staff on changed waterfront plans and sees 5 commissioners as possible solution to poor decision making.2 comments; last on May 10, 2012
R.G. Haley Site: Will Funding Come With a Side of Dioxin?
Mon, May 07, 2012, 11:22 am // Wendy Harris
Dioxin contaminated sediment dredged from Squalicum Harbor, dumped at the Cornwall Landfill, may be spread across the R.G. Haley site.0 comments
Port and City Provide The Truth But Not the Whole Truth
Sat, May 05, 2012, 12:13 am // Wendy Harris
Treaty Rights and Public Rights Ignored During Joint Port/City Meeting on Status of Waterfront Redevelopment1 comments; last on May 07, 2012
Port 5 - Hour of Audio Information
Thu, May 03, 2012, 9:23 pm // John Servais
The Joe Show had John Servais on the air for a full hour on Thursday - and we link to the pod cast.3 comments; last on May 05, 2012
New Facebook Page for Port Reform
Tue, May 01, 2012, 10:24 am // John Servais
Bellingham Port Reform has a Facebook page, courtesy of Tip Johnson.1 comments; last on May 02, 2012
Port Loses New Boat Builder Tenant
Tue, May 01, 2012, 9:34 am // John Servais
Port of Bellingham signed lease a month ago to hoopla and now the boat builder is exiting for Anacortes.11 comments; last on May 08, 2012
Speakers to address Port on Tuesday
Mon, Apr 30, 2012, 10:54 pm // John Servais
Several people will be urging the Port of Bellingham commissioners to place the question of expanding to 5 commissioners on the ballot.0 comments
5 Port Commissioners Initiative Now Circulating
Sat, Apr 28, 2012, 10:09 am // John Servais
A county wide initiative will allow voters to decide whether to expand the Port of Bellingham commission from 3 to 5 commissioners.1 comments; last on Apr 28, 2012
Ron Paul Delegates Railroaded at Whatcom GOP Convention
Tue, Apr 24, 2012, 12:07 pm // Riley Sweeney
Riley attended the Whatcom GOP Convention and reports back
1 comments; last on Apr 29, 2012
Charlie Sheldon has Herald Op-Ed
Tue, Apr 24, 2012, 9:25 am // John Servais
Today's Bellingham Herald carries an article from Sheldon, with facts, falsehoods and his perspective on his forced resignation as Executive Director of the Port of Bellingham.0 comments
The Road to Nowhere Can Go Forward
Tue, Apr 24, 2012, 1:02 am // Guest writer
Developers are gaming the system with help from the county government - and big changes are made in multiple small changes.
1 comments; last on Apr 27, 2012
Earth Day Alert: Rocket Donuts to throw Fairhaven trees in the Deepfry
Sun, Apr 22, 2012, 7:28 pm // Tip Johnson
Will donuts prove more important than street trees?
10 comments; last on May 02, 2012
Video of port commissioners is posted
Wed, Apr 18, 2012, 12:28 pm // John Servais
A 26 minute video of the port commissioners explaining their positions on the firing of executive director Charlie Sheldon is posted.7 comments; last on Apr 19, 2012
Port Meeting Today, Tuesday, at 3 p.m.
Tue, Apr 17, 2012, 12:51 pm // John Servais
At 3 p.m. today - Tuesday, April 17 - the Port of Bellingham meets. Let's attend and support rehiring Charlie Sheldon.3 comments; last on Apr 18, 2012
100 years ago, at 5:38 p.m. today Bellingham time
Sat, Apr 14, 2012, 4:09 pm // John Servais
The Titanic struck the iceberg at 11:40 p.m. This post is non political - unless you want to draw a parallel with recent Port of Bellingham events.0 comments
Jim Jorgensen May Reverse His Vote
Fri, Apr 13, 2012, 5:47 pm // John Servais
Friday update: Herald reports Jim Jorgensen could change his mind on firing of Port of Bellingham Executive Director Charlie Sheldon3 comments; last on Apr 17, 2012
Two Port Commissioners Held Illegal Meeting
Tue, Apr 10, 2012, 8:52 pm // John Servais
An illegal serial Port Commission meeting should be investigated by the State Auditor, and two commissioners should be made accountable for their actions.
5 comments; last on Apr 11, 2012
A Time for Port Reform
Sun, Apr 08, 2012, 11:33 am // Tip Johnson
Wherein the shenanigans start smelling too fishy to tolerate1 comments; last on Apr 11, 2012
Padden Trails. It Is Not About Infill; It Is About Profits
Sat, Apr 07, 2012, 2:05 pm // Dick Conoboy
The issue is not sprawl or infill, but the money to be made by the type of infill and its placement7 comments; last on Apr 09, 2012
Growth, Sprawl & Infill: Padden Trails Project
Fri, Apr 06, 2012, 8:16 am // Guest writer
Ken Mann writes a guest article of his personal support for the Padden Trails development inside the Bellingham city limits.
3 comments; last on Apr 07, 2012
Petition to Keep Charlie Sheldon is Online
Thu, Apr 05, 2012, 4:00 pm // John Servais
An Online petition has been posted where citizens can sign on to request the Port Commissioners revote on Charlie Sheldon's termination.5 comments; last on Apr 06, 2012
We Can Expand Port Commission to Five
Wed, Apr 04, 2012, 3:16 pm // John Servais
State law allows us to pass an initiative and increase the number of port commissioners from three to five. Thanks to Harriet Spanel.4 comments; last on Apr 05, 2012
Two Commissioners Demanded Charlie Resign
Tue, Apr 03, 2012, 6:25 pm // John Servais
Port Commissioner Mike McAuley did everything he could do to change Jim Jorgensen's mind. Jim and Scott Walker forced Charlie Sheldon out.6 comments; last on Apr 06, 2012
Questions about Population Growth
Mon, Apr 02, 2012, 12:43 pm // Larry Horowitz
Where to begin? Misinformation. Disinformation. Truths. Myths. Same old, same old. Paradigm shift. GMA. OFM. Growth pressures. Population loss. Growth subsidies. Proportionate share.36 comments; last on Apr 11, 2012
Charlie Sheldon resigns as Port Director
Mon, Apr 02, 2012, 12:35 pm // John Servais
This morning, Charlie Sheldon, unexpectedly resigned as Executive Director of the Port of Bellingham.10 comments; last on Apr 03, 2012
Mayor Kelli comes through for voters
Mon, Apr 02, 2012, 1:03 am // John Servais
A thanks to Kelli Linville for her quiet and effective solution to the onerous red light cameras dilemma.0 comments
City Has No Love For Fish and Wildlife
Thu, Mar 29, 2012, 10:32 pm // Wendy Harris
Development at Bloedel Park ignores impacts to important shoreline habitat2 comments; last on Mar 31, 2012
Padden Trails Provides Infill
Mon, Mar 19, 2012, 1:07 am // Guest writer
Guest writer Bill Geyer, who is the consultant for the Padden Trails Development, presents facts and perspective on the development.
34 comments; last on Apr 15, 2012
Useful Police Activity Visualization Now Online
Sun, Mar 18, 2012, 11:58 pm // John Servais
A new private website displays crimes by dates, on a Bellingham map, or by graphs for all citizens to use.5 comments; last on Mar 21, 2012
Sunnyland neighborhood asks for support
Thu, Mar 15, 2012, 2:11 pm // Guest writer
By guest writer Mike Rostron. Sunnyland residents support infill but not overfill. The old Department of Transportation site on Sunset is the development site.
40 comments; last on Mar 19, 2012
NWCitizen upgrade is completed
Mon, Mar 12, 2012, 11:33 am // John Servais
Just a short note about nwcitizen past few weeks effort1 comments; last on Apr 10, 2012
2012-2013 Priorities from City Council
Sun, Mar 11, 2012, 11:20 am // Dick Conoboy
The City Council outlines their agenda for the coming year2 comments; last on Mar 12, 2012
The Curious Disappearance of Bob Ferris
Fri, Mar 09, 2012, 12:15 pm // Riley Sweeney
Riley gets to the bottom of this in a NWCitizen Exclusive
4 comments; last on Apr 01, 2012
Padden Trails is Chuckanut Ridge Lite
Wed, Feb 22, 2012, 2:04 am // Guest writer
Yet another neighborhood wants the Planning Department to protect public health, safety, and general welfare
6 comments; last on Feb 24, 2012
Congressional Candidates and Overstreet’s Town Hall
Sun, Feb 19, 2012, 6:37 pm // Riley Sweeney
Riley at The Political Junkie attends a forum of Congressional Candidates, and a town hall meeting in Lynden0 comments
New links
Bham Police ActivityFacebook Port Reform
Jack Petree
Current Interest
Bham Camera ScamBham Police Activity
Colbert Super Pac
Facebook Port Reform
Local Blogs & News
Bellingham HeraldBham Politics & Economics
Bhm Herald Politics Blog
Bob Sanders
Cascadia Weekly
Citizen Ted
Ferndale Record
Foothills Gazette
Get Whatcom Planning
HamsterTalk
Jack Petree
KGMI
Latte Republic
Lynden Tribune
MikeatthePort
Northern Light
Northwest Review
Sweeney Politics
Twilight Zoning
Wally Wonders
Western Front - WWU
Whatcom Watch
Local causes
Bham Camera ScamBham CofC political blog
Chuckanut Mountains
Citizens of Bellingham
City Club of Bham
Community Wise Bellingham
Conservation NW
Cordata & Meridian
Facebook Port Reform
Futurewise - Whatcom
Jail - local mega plans
Lake Whatcom
N. Cascades Audubon
N. Sound Conservancy
Neighborhood Schools Coalition
No Leaky Buckets
NW Holocaust Center
RE Sources
Transition Whatcom
WA Conservation Voters
Publisher recommended
Americans Elect 2012Bham Police Activity
Bham Politics & Economics
Community Wise Bellingham
Facebook Port Reform
Guardian Unlimited
Paul Krugman - economics
Redistricting WA state
Sweeney Politics
Watts Up With That? - climate
WikiLeaks.ch
NwCitizen 1995 to 2008
Early Northwest CitizenWeather & Climate
Cliff Mass Weather BlogClimate Audit
NW Radar
Two day forecast
Watts Up With That? - climate
Cascadia
Crosscut SeattleJoel Connelly
Orcinus
Portland Indy Media
Seattle Indy Media
Washington Votes
Leisure
Adventures NWEdge of Sports
Entertainment NNW
Famous Internet Skiers
Sailing Anarchy
Worth checking out
Al-Jazeera onlineAlaska Dispatch
AlterNet.org
Americans Elect 2012
Antiwar.com
Arab News
Asia Times
Atlantic, The
Buzz Flash
Common Dreams
counterpunch
Daily Beast, The
Daily Kos
Daily Mirror
Drudge Report
FiveThirtyEight
Foreign Policy in Focus
Guardian Unlimited
Gulf News
Haaretz
Huffington Post
Innocence Project, The
Intrnational Herald Tribune
James Fallows
Jerusalem Post
Juan Cole
Le Diplo
Media Matters
Middle East Times
MoveOn.org
Nation, The
New American Century
News Trust
NMFA
numbers
Online Journal
Palestine Daily
Palestine News
Paul Krugman - economics
Personal bio info
Politico
Progressive Review
Project Vote Smart
Reuters
Sea Shepherd
Slate
Talking Points Memo
The Onion
Tom Paine.com
truthout
War and Piece
WikiLeaks.ch
ynetnews.com
Governments
Auditor election pageBellingham
Bham - PFD
Bham Police Activity
Candidate Filings
Election Results
Port of Bellingham
Redistricting WA state
Skagit County
The White House
WA State Access
WA State Elections
WA State Legislature
Whatcom Auditor
Whatcom County
Other - for whatever
Ban Red Light CamsBushFlash.com
Chickehhawks
Coal quandary
Doonesbury
George Bush
Info Clearing House
Mainstreampolitics
Michael Moore
Nat Geo on Coal Trains
Reality News
The Crisis Papers
Third World Traveler
Unity08
Washington Outsiders
Less active
Bellingham RegisterCarl Weimer
Eye on Whatcom
John Watts
Post-Oklahoman Confessions
The American Telegraph
Quiet, offline or dead
David HackworthGitmo prisoner 345
Mega Awesome
Not in my county
Parkenfarker
Pro-Whatcom