An Eight Inch Loophole?
An Eight Inch Loophole?
We will soon see our county government’s true colors flying. Will it be appropriate growth management, or them managing to get around it? Just how far will they push sprawl?
On March 19th a
On March 19th a
We will soon see our county government's true colors flying. Will it be appropriate growth management, or them managing to get around it? Just how far will they push sprawl?
On March 19th at 1:30PM the fight will be joined again. That's when the new hearing, ordered by the Superior court on Lake Whatcom Water & Sewer District's plans, including extending water to Vineyard Development, will begin in the council chambers of the county courthouse.
For some time now the county's attorneys have been working with the water district to legitimize its plans and argue the position that they have a right to extend water service throughout the watershed around Bellingham's reservoir. Where the water lines go, so goes residential development; identified as the primary cause of the reservoir's deterioration.
In fact, the county claims they may allow water lines, as long as they don't exceed 8” in diameter, anywhere they want in the county. They say 8” water lines are a rural level of water service. If allowed to stand, this statement will satisfy the only condition in the agreement between the developer and the water district holding up extension of water into an area designated as resource lands to be protected and used for rural forestry.
Immediately, the effort is to take water up onto Squalicum Mountain from an unlawfully approved well at Agate Bay that intercepts water needed by the lake, otherwise closed to new withdrawals.
But the law isn't exactly what the county attorneys would like it to be.
In the fall of 2000 the Western Washington Growth Management Hearings Board, considering a petition in Skagit county, ruled that while “rural services” may include domestic water delivered at an intensity usually found in rural areas, it must not be at an intensity normally associated with urban areas.
The definitions of “rural services” and “urban services” both cover domestic water systems. The Board explained rural water services must be at an intensity not found in urban areas. Urban water services are those that are provided at an intensity historically and typically provided in cities.
Those are the legislature's definitions from the Growth Management Act and were adopted by Whatcom county in its Comprehensive Plan, its County Wide Planning Policies and its Coordinated Water System Plan.
There is no argument that 8” lines are common in all our urban areas, or even that they may be found outside our cities. But the size of the lines is irrelevant. The Board agreed with Skagit county that, “it is not appropriate or possible to set a water pipe size as an urban vs. rural level of service.”
Whatever the dimensions of the pipes, if they can supply water at an intensity historically and typically provided in cities, they're an urban level of service. Whatcom county's Comprehensive Plan, and its related Planning Policies, prohibit urban services outside of cities and urban growth areas.
While urban services are generally banned in rural areas, they may be allowed if consistent with RCW 36.70A.110(4). That is, where they are necessary to address health, safety and environmental emergencies; but then only provided they will not lead to growth inconsistent with the preservation of rural character. Whatcom county's plan echoes this language from the GMA.
If the county finds there is an emergency that necessitates making an exception to the general ban on urban services in rural areas, it may allow the extension or expansion, but it must require reasonable conditions to preclude that service facilitating low density residential sprawl that could subsequently lead to urban growth.
Concerned citizens demanded the law be followed. So far, they have been forced to spend tens of thousands of dollars to oppose the county. They recently prevailed in Superior court, forcing the county to reopen the matter and reopen the record. It appears that they will next be forced to spend additional tens of thousands of dollars to force the county to comply with its own Comprehensive Plan and Planning Policies.
It wouldn't be necessary if the County Council could find the courage to remind everyone that the directives in those county plans are the basis for utility development, and that interpretations of county codes, that are inconsistent with those policies, are misinterpretations of the code.
Otherwise, the issue will again go through the Hearing Examiner process, be delayed in appeal to the county council, and ultimately will be litigated in Superior court in a land use petition proceeding. The question the court will resolve: Is water service at intensities commonly found in cities a “rural service” when the same intensity of service is proposed outside of areas designated for urban growth?
It finally will be the Superior court that decides whether this land use decision complies with the Comprehensive Plan.
But even when this specific land use decision is overturned, there will be another and another and another. It will go on until the code's vagaries are eliminated and the Comprehensive Plan's policies are followed. This conceivably could drag out until the next Comprehensive Plan review and then, if it is not fixed, the Growth Management Hearings Board will fix it.
Of course, the county executive could tell his planning director to see that staff understands that water service at intensities common throughout Bellingham aren't transformed into “rural services” when proposed in rural areas.
Or the county council could end the misinterpretation of the code and explain that requiring pipes greater than 8” in diameter be only allowed after a conditional use hearing, does not define “rural services” to mean pipes 8” or less.
Indeed, it was intended that the provisions of the utilities chapter of the county code would regulate utility development in conjunction with the directives of the Comprehensive Plan and Planning Policies, not supersede them.
Pipe size does not define the difference between urban and rural water service. What “historically and typically” is found in urban areas does. What we used to allow in rural areas no longer matters. With the passage of the Growth Management Act, and adoption of our Comprehensive Plan, past activities in rural lands came to an end.
Now we are to plan and develop differently. Where regulations fail to comply with State Supreme Court decisions they fail to comply with the GMA. Requiring a conditional use permit does not remedy this failure. The fact that we used to allow it means nothing.
This is an extremely important issue for growth management in Whatcom county. Zoning alone will never check our tendency towards sprawl. These restrictions on water and sewer systems are critical tools to manage growth.
The Supreme Court has amply warned us that it's the expansion of these urban utilities in rural areas that leads to rezoning and reclassification of areas intended to buffer our forest and agricultural lands from multiplying residences. The court has clearly warned us that to not bar expansion of these urban amenities will lead inevitably to the conversion of these rural areas to low density residential development and ultimately to reclassification for urban growth. Land speculators bank on it.
The City of Bellingham gets it. They are standing alongside those concerned county folks. They have similarly expended countless hours trying to get the county to listen. They were also there in Superior court demanding to be heard.
They are asking the county council to act and get the county administration and planning department under control. They are asking the water district and the county planners, if it is necessary to install these pipes, accept reasonable conditions to preclude their facilitating development in the city's reservoir. They will be there again if this has to go back to Superior court.
Why does the county stubbornly refuse to discourage inappropriate growth? Why won't they use the tools the legislature provided to prevent sprawl and encourage compact urban growth; in particular the general prohibition of water and sewer in rural areas?
I'll leave the answer to you. The fact is the county seems intent on providing water for development, one way or another, everywhere in the county.
On March 19th at 1:30PM the fight will be joined again. That's when the new hearing, ordered by the Superior court on Lake Whatcom Water & Sewer District's plans, including extending water to Vineyard Development, will begin in the council chambers of the county courthouse.
For some time now the county's attorneys have been working with the water district to legitimize its plans and argue the position that they have a right to extend water service throughout the watershed around Bellingham's reservoir. Where the water lines go, so goes residential development; identified as the primary cause of the reservoir's deterioration.
In fact, the county claims they may allow water lines, as long as they don't exceed 8” in diameter, anywhere they want in the county. They say 8” water lines are a rural level of water service. If allowed to stand, this statement will satisfy the only condition in the agreement between the developer and the water district holding up extension of water into an area designated as resource lands to be protected and used for rural forestry.
Immediately, the effort is to take water up onto Squalicum Mountain from an unlawfully approved well at Agate Bay that intercepts water needed by the lake, otherwise closed to new withdrawals.
But the law isn't exactly what the county attorneys would like it to be.
In the fall of 2000 the Western Washington Growth Management Hearings Board, considering a petition in Skagit county, ruled that while “rural services” may include domestic water delivered at an intensity usually found in rural areas, it must not be at an intensity normally associated with urban areas.
The definitions of “rural services” and “urban services” both cover domestic water systems. The Board explained rural water services must be at an intensity not found in urban areas. Urban water services are those that are provided at an intensity historically and typically provided in cities.
Those are the legislature's definitions from the Growth Management Act and were adopted by Whatcom county in its Comprehensive Plan, its County Wide Planning Policies and its Coordinated Water System Plan.
There is no argument that 8” lines are common in all our urban areas, or even that they may be found outside our cities. But the size of the lines is irrelevant. The Board agreed with Skagit county that, “it is not appropriate or possible to set a water pipe size as an urban vs. rural level of service.”
Whatever the dimensions of the pipes, if they can supply water at an intensity historically and typically provided in cities, they're an urban level of service. Whatcom county's Comprehensive Plan, and its related Planning Policies, prohibit urban services outside of cities and urban growth areas.
While urban services are generally banned in rural areas, they may be allowed if consistent with RCW 36.70A.110(4). That is, where they are necessary to address health, safety and environmental emergencies; but then only provided they will not lead to growth inconsistent with the preservation of rural character. Whatcom county's plan echoes this language from the GMA.
If the county finds there is an emergency that necessitates making an exception to the general ban on urban services in rural areas, it may allow the extension or expansion, but it must require reasonable conditions to preclude that service facilitating low density residential sprawl that could subsequently lead to urban growth.
Concerned citizens demanded the law be followed. So far, they have been forced to spend tens of thousands of dollars to oppose the county. They recently prevailed in Superior court, forcing the county to reopen the matter and reopen the record. It appears that they will next be forced to spend additional tens of thousands of dollars to force the county to comply with its own Comprehensive Plan and Planning Policies.
It wouldn't be necessary if the County Council could find the courage to remind everyone that the directives in those county plans are the basis for utility development, and that interpretations of county codes, that are inconsistent with those policies, are misinterpretations of the code.
Otherwise, the issue will again go through the Hearing Examiner process, be delayed in appeal to the county council, and ultimately will be litigated in Superior court in a land use petition proceeding. The question the court will resolve: Is water service at intensities commonly found in cities a “rural service” when the same intensity of service is proposed outside of areas designated for urban growth?
It finally will be the Superior court that decides whether this land use decision complies with the Comprehensive Plan.
But even when this specific land use decision is overturned, there will be another and another and another. It will go on until the code's vagaries are eliminated and the Comprehensive Plan's policies are followed. This conceivably could drag out until the next Comprehensive Plan review and then, if it is not fixed, the Growth Management Hearings Board will fix it.
Of course, the county executive could tell his planning director to see that staff understands that water service at intensities common throughout Bellingham aren't transformed into “rural services” when proposed in rural areas.
Or the county council could end the misinterpretation of the code and explain that requiring pipes greater than 8” in diameter be only allowed after a conditional use hearing, does not define “rural services” to mean pipes 8” or less.
Indeed, it was intended that the provisions of the utilities chapter of the county code would regulate utility development in conjunction with the directives of the Comprehensive Plan and Planning Policies, not supersede them.
Pipe size does not define the difference between urban and rural water service. What “historically and typically” is found in urban areas does. What we used to allow in rural areas no longer matters. With the passage of the Growth Management Act, and adoption of our Comprehensive Plan, past activities in rural lands came to an end.
Now we are to plan and develop differently. Where regulations fail to comply with State Supreme Court decisions they fail to comply with the GMA. Requiring a conditional use permit does not remedy this failure. The fact that we used to allow it means nothing.
This is an extremely important issue for growth management in Whatcom county. Zoning alone will never check our tendency towards sprawl. These restrictions on water and sewer systems are critical tools to manage growth.
The Supreme Court has amply warned us that it's the expansion of these urban utilities in rural areas that leads to rezoning and reclassification of areas intended to buffer our forest and agricultural lands from multiplying residences. The court has clearly warned us that to not bar expansion of these urban amenities will lead inevitably to the conversion of these rural areas to low density residential development and ultimately to reclassification for urban growth. Land speculators bank on it.
The City of Bellingham gets it. They are standing alongside those concerned county folks. They have similarly expended countless hours trying to get the county to listen. They were also there in Superior court demanding to be heard.
They are asking the county council to act and get the county administration and planning department under control. They are asking the water district and the county planners, if it is necessary to install these pipes, accept reasonable conditions to preclude their facilitating development in the city's reservoir. They will be there again if this has to go back to Superior court.
Why does the county stubbornly refuse to discourage inappropriate growth? Why won't they use the tools the legislature provided to prevent sprawl and encourage compact urban growth; in particular the general prohibition of water and sewer in rural areas?
I'll leave the answer to you. The fact is the county seems intent on providing water for development, one way or another, everywhere in the county.
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