Another Case of American Blind Justice
Another Case of American Blind Justice
Yesterday liars, lawyers, and legitimately offended gathered at the courthouse because the court remanded approval of a project to expand water service in the watershed back to the Hearing Examiner, s
Yesterday liars, lawyers, and legitimately offended gathered at the courthouse because the court remanded approval of a project to expand water service in the watershed back to the Hearing Examiner, sending the game between the developers and their opponents into extra innings.
I was again reminded of the wisdom, expressed years ago by a good friend, a self described country lawyer, who attempted to calm me after an early confrontation with justice, “Always remember, there's a lot more lyin' goes on in the courthouse than outside it.”
It's hard to believe that the environmental significance of allowing Lake Whatcom Water & Sewer District to radically expand their system, and develop the capability to serve thousands of residences in the watershed, would be determined by someone in their own employ with admittedly no training related to the state's environmental protection law.
It's disheartening to witness, yet again, our county government giving it the wink, and allowing the water district to run water lines up Squalicum Mountain.
The old critic, with some knowledge of human nature, observed it's hard to accept a man's telling the truth when you know that you would lie if you were in his place. But when it's clear they're lying, it's even harder to accept that they'll get away with it.
In the fall of 2005 developers approached the water district for water service necessary to go forward with their cluster project on the mountain. The water district undertook a study and came up with a plan, some 9 pages, that laid out how they would service the development.
Two critical steps in that plan were acquiring the Lake Whatcom Residential Treatment Center's existing system; and avoiding a challenge for expanding an urban service in a rural area, an issue the water district clearly recognized and discussed in their strategic plan.
Acquiring the treatment center's system and characterizing that step as an “improvement” rather than part of an “expansion” furthered the latter.
The plan laid out in great detail how the scale of improvements to the treatment center system were necessary to serve the Vineyard project.
The developer and the water district implemented the plan. The water district's board authorized it. And in the spring of 2006 the water district and the developer formally agreed to move ahead. Shortly thereafter, the water district concluded the agreement to acquire the treatment center's water system.
The operators of the treatment center have long said that this project would not facilitate further development; that they stood in the way, and would not allow the water district to use their property to serve Vineyard or other development in the watershed.
They must have been a little disillusioned, if they didn't already know, when the water district's representative told the Hearing Examiner that the easements acquired with the treatment center's water system would allow them to extend these 8” pipes up to Vineyard when the subdivision was approved.
The tactical dilemma to be faced in the second step is nicely described in the water district's plan:
“The SEPA checklist must cover the entire water system project. Since the Vineyard subdivision process will also require a SEPA environmental checklist, the District and Developer should discuss how best to combine or separate the two processes.”
The sticky question in the checklist that could trigger a process in which the plan would be challenged and the legality and environmental impact of the project would be appraised in a public process was:
#7 Do you have any plans for future additions, expansion,
or further activity related to or connected with this proposal?
If yes, explain.
An honest answer of course seems obvious. They have a plan. The plan has a couple of steps. Step 1: acquire and improve the treatment center system to meet the requirements of serving Vineyard. Step 2: extend the service to the Vineyard development. That' the plan. That's the entire water system project the district is pursuing.
But the water district not only decided it best not to combine the environmental review of the developer's land division process with the district's water system project; the water district decided it would be best not even to disclose that the “improvement” was part of the “expansion”.
The water district decided it best not to disclose the entire water system project. If they answered with a simple NO, no explanation would be needed.
Now I must acknowledge the water district's lawyer's stoicism in the face of these facts. The day before he claimed in a letter to the Hearing Examiner, “The District properly filled out the environmental checklist for this project. There are no plans to expand this existing land use on this site or off site.”
Well that statement's ranks right up there with that famous lawyerly equivocation, “it depends on what you mean by the word 'is'” Maybe this fellow should run for president.
The plain language of the plan, and the clear implementation of it, speaks volumes though. The water district lied and they are still trying to cover it up.
The Hearing Examiner, faced with this very conspicuous glitch in the record, really had no where to go with his rubber stamp at this point. Like the guy who'd stepped in it and then tracked it across the carpet, it gets hard to keep pretending you can't smell it.
His outrage however was only capable of finding expression in the mildest of rebukes. He politely explained that the water district might henceforth consider considering that when they are asked if a project is related to anything else they are planning, answering no might, just might, not be easily accepted in a community plagued with so many overly suspicious busy bodies.
Blind justice I can take, but deaf and dumb is more than anyone can be expected to accept. No matter how many times our hard of Hearing Examiner was told that the water district was over the line and proposing an urban level of service in a rural area, he just couldn't get it.
He just can't understand (or more likely refuses to accept) that the threshold question is whether this is an urban or a rural service.
The water district, the county, the Hearing Examiner, the developers, they all want to come at this backwards. If the fire code says we need this size of whatchamacallit, then we've gotta do suchansuch. Oops, sorry, I guess that means we've gotta put the Alaska pipeline through your backyard. Hey, the Public Works Trust Fund Board says it's OK, so we'll just ignore what the Supreme court said.
Well, it's time to face it. The Growth Management Act was about managing growth. And while it delegated the responsibility to manage growth to counties, it didn't give them the discretion to ignore the law. It didn't create a system for counties to piecemeal urban sprawl through zoning and rezoning until after thirty or forty years the rural character was gone and our farms and forests were surrounded and converted into subdivisions. That's why the law prohibits urban services outside of cities and areas designated for urban growth.
It's really simple. If you put in the roads, sewers, water systems, parks, playgrounds and whatever else makes cities cities, don't be surprised that somebody who wants to make a buck will want to put a subdivision in that field and cut down those trees for a better view.
Urban levels of service, such as a water system, are services at an intensity typically found in urban areas. Water service may be allowed in a rural area if it's not at an intensity usually found in urban areas. The threshold question has to be answered honestly. Are these urban services? If they are, they're out. Urban life is to be pursued in urban areas.
It doesn't matter what the zoning density is, the question is the intensity of the water system. Zoning is easily changed. Putting Bellingham's water system in the rural county, won't make it a rural level of service.
The Washington State Supreme Court has clearly stated the significance of the legislature's intent in the GMA to prohibit urban services outside of areas designated for urban growth. It is clear from the legislature's inclusion of such restrictions that it realized that zoning alone would not keep our rural lands rural and protect our resource lands from incompatible low density development.
The legislature defined urban and rural governmental services, and sought to prohibit, or at least minimize, the expansion of urban services in rural areas. This was intended to have great weight when considering the expansion of water and sewer services that inevitably drive development.
In upholding a board ruling that barred the extension of urban services out to Cooper Point, the Supreme court said,
“This plain language of the statute reflects the Legislature's overall goals and policies for the GMA: 'to reduce sprawl and to reduce the inappropriate conversion of undeveloped land into sprawling, low density development'; 'to protect the rural character of an area'; and 'to bar extension or expansion of urban governmental services into designated rural areas.'
Moreover, the record before the Board suggested that the push for further development or a future reclassification of Cooper Point from rural to urban growth area would be likely, if not inevitable.”
The Whatcom County Comprehensive Plan is pretty clear about it too. In fact it is recommends that urban services be withheld until annexation by a city.
“Outside urban growth areas, the presence of urban levels of services such as water and sewer can put financial pressure on rural areas to develop more densely than desired. County-Wide Planning Policies restrict cities from delivering urban levels of water and sewer service for urban uses outside urban growth areas.”
So we will wait and see how the Hearing Examiner manages to rubber stamp the water district's expansion plans. That's certainly what the county administration wants. It's highly unlikely he'll have the courage to make them go through an honest environmental impact process.
He will likely look the other way and ignore the water district's piece mealing their project to escape public review. But he's really only got to figure out one thing. What's an urban service.
Unless he can torture and twist up the law and the language to rule this is a rural service, he's got to deny this proposal and make the water district come back with a legally appropriate proposal for providing an urban level of water service. (if they really just want to help the treatment center)
This argument may confuse those looking for confusion, but allowing the expansion of urban water services in rural areas is simply inconsistent with Whatcom County's Comprehensive Plan and its Planning Policies. Perhaps this is why our county executive thinks the Plan is outdated.
The Comprehensive Plan opposes the extension of urban services in rural areas. Urban water services are those that are of an intensity usually found in cities. They do not magically become rural services when proposed in rural areas. These are urban service levels being proposed, and the county's regulations can not be interpreted to allow it.
The regulations the Hearing Examiner must follow say that the Comprehensive Plan and its policies are to direct the development of utilities in the county. It just so happens that county's water system plan adopted the GMA definitions of urban and rural services.
The role of the hearing examiner is to determine compliance with those regulations, not to disregard them. We'll see.
I was again reminded of the wisdom, expressed years ago by a good friend, a self described country lawyer, who attempted to calm me after an early confrontation with justice, “Always remember, there's a lot more lyin' goes on in the courthouse than outside it.”
It's hard to believe that the environmental significance of allowing Lake Whatcom Water & Sewer District to radically expand their system, and develop the capability to serve thousands of residences in the watershed, would be determined by someone in their own employ with admittedly no training related to the state's environmental protection law.
It's disheartening to witness, yet again, our county government giving it the wink, and allowing the water district to run water lines up Squalicum Mountain.
The old critic, with some knowledge of human nature, observed it's hard to accept a man's telling the truth when you know that you would lie if you were in his place. But when it's clear they're lying, it's even harder to accept that they'll get away with it.
In the fall of 2005 developers approached the water district for water service necessary to go forward with their cluster project on the mountain. The water district undertook a study and came up with a plan, some 9 pages, that laid out how they would service the development.
Two critical steps in that plan were acquiring the Lake Whatcom Residential Treatment Center's existing system; and avoiding a challenge for expanding an urban service in a rural area, an issue the water district clearly recognized and discussed in their strategic plan.
Acquiring the treatment center's system and characterizing that step as an “improvement” rather than part of an “expansion” furthered the latter.
The plan laid out in great detail how the scale of improvements to the treatment center system were necessary to serve the Vineyard project.
The developer and the water district implemented the plan. The water district's board authorized it. And in the spring of 2006 the water district and the developer formally agreed to move ahead. Shortly thereafter, the water district concluded the agreement to acquire the treatment center's water system.
The operators of the treatment center have long said that this project would not facilitate further development; that they stood in the way, and would not allow the water district to use their property to serve Vineyard or other development in the watershed.
They must have been a little disillusioned, if they didn't already know, when the water district's representative told the Hearing Examiner that the easements acquired with the treatment center's water system would allow them to extend these 8” pipes up to Vineyard when the subdivision was approved.
The tactical dilemma to be faced in the second step is nicely described in the water district's plan:
“The SEPA checklist must cover the entire water system project. Since the Vineyard subdivision process will also require a SEPA environmental checklist, the District and Developer should discuss how best to combine or separate the two processes.”
The sticky question in the checklist that could trigger a process in which the plan would be challenged and the legality and environmental impact of the project would be appraised in a public process was:
#7 Do you have any plans for future additions, expansion,
or further activity related to or connected with this proposal?
If yes, explain.
An honest answer of course seems obvious. They have a plan. The plan has a couple of steps. Step 1: acquire and improve the treatment center system to meet the requirements of serving Vineyard. Step 2: extend the service to the Vineyard development. That' the plan. That's the entire water system project the district is pursuing.
But the water district not only decided it best not to combine the environmental review of the developer's land division process with the district's water system project; the water district decided it would be best not even to disclose that the “improvement” was part of the “expansion”.
The water district decided it best not to disclose the entire water system project. If they answered with a simple NO, no explanation would be needed.
Now I must acknowledge the water district's lawyer's stoicism in the face of these facts. The day before he claimed in a letter to the Hearing Examiner, “The District properly filled out the environmental checklist for this project. There are no plans to expand this existing land use on this site or off site.”
Well that statement's ranks right up there with that famous lawyerly equivocation, “it depends on what you mean by the word 'is'” Maybe this fellow should run for president.
The plain language of the plan, and the clear implementation of it, speaks volumes though. The water district lied and they are still trying to cover it up.
The Hearing Examiner, faced with this very conspicuous glitch in the record, really had no where to go with his rubber stamp at this point. Like the guy who'd stepped in it and then tracked it across the carpet, it gets hard to keep pretending you can't smell it.
His outrage however was only capable of finding expression in the mildest of rebukes. He politely explained that the water district might henceforth consider considering that when they are asked if a project is related to anything else they are planning, answering no might, just might, not be easily accepted in a community plagued with so many overly suspicious busy bodies.
Blind justice I can take, but deaf and dumb is more than anyone can be expected to accept. No matter how many times our hard of Hearing Examiner was told that the water district was over the line and proposing an urban level of service in a rural area, he just couldn't get it.
He just can't understand (or more likely refuses to accept) that the threshold question is whether this is an urban or a rural service.
The water district, the county, the Hearing Examiner, the developers, they all want to come at this backwards. If the fire code says we need this size of whatchamacallit, then we've gotta do suchansuch. Oops, sorry, I guess that means we've gotta put the Alaska pipeline through your backyard. Hey, the Public Works Trust Fund Board says it's OK, so we'll just ignore what the Supreme court said.
Well, it's time to face it. The Growth Management Act was about managing growth. And while it delegated the responsibility to manage growth to counties, it didn't give them the discretion to ignore the law. It didn't create a system for counties to piecemeal urban sprawl through zoning and rezoning until after thirty or forty years the rural character was gone and our farms and forests were surrounded and converted into subdivisions. That's why the law prohibits urban services outside of cities and areas designated for urban growth.
It's really simple. If you put in the roads, sewers, water systems, parks, playgrounds and whatever else makes cities cities, don't be surprised that somebody who wants to make a buck will want to put a subdivision in that field and cut down those trees for a better view.
Urban levels of service, such as a water system, are services at an intensity typically found in urban areas. Water service may be allowed in a rural area if it's not at an intensity usually found in urban areas. The threshold question has to be answered honestly. Are these urban services? If they are, they're out. Urban life is to be pursued in urban areas.
It doesn't matter what the zoning density is, the question is the intensity of the water system. Zoning is easily changed. Putting Bellingham's water system in the rural county, won't make it a rural level of service.
The Washington State Supreme Court has clearly stated the significance of the legislature's intent in the GMA to prohibit urban services outside of areas designated for urban growth. It is clear from the legislature's inclusion of such restrictions that it realized that zoning alone would not keep our rural lands rural and protect our resource lands from incompatible low density development.
The legislature defined urban and rural governmental services, and sought to prohibit, or at least minimize, the expansion of urban services in rural areas. This was intended to have great weight when considering the expansion of water and sewer services that inevitably drive development.
In upholding a board ruling that barred the extension of urban services out to Cooper Point, the Supreme court said,
“This plain language of the statute reflects the Legislature's overall goals and policies for the GMA: 'to reduce sprawl and to reduce the inappropriate conversion of undeveloped land into sprawling, low density development'; 'to protect the rural character of an area'; and 'to bar extension or expansion of urban governmental services into designated rural areas.'
Moreover, the record before the Board suggested that the push for further development or a future reclassification of Cooper Point from rural to urban growth area would be likely, if not inevitable.”
The Whatcom County Comprehensive Plan is pretty clear about it too. In fact it is recommends that urban services be withheld until annexation by a city.
“Outside urban growth areas, the presence of urban levels of services such as water and sewer can put financial pressure on rural areas to develop more densely than desired. County-Wide Planning Policies restrict cities from delivering urban levels of water and sewer service for urban uses outside urban growth areas.”
So we will wait and see how the Hearing Examiner manages to rubber stamp the water district's expansion plans. That's certainly what the county administration wants. It's highly unlikely he'll have the courage to make them go through an honest environmental impact process.
He will likely look the other way and ignore the water district's piece mealing their project to escape public review. But he's really only got to figure out one thing. What's an urban service.
Unless he can torture and twist up the law and the language to rule this is a rural service, he's got to deny this proposal and make the water district come back with a legally appropriate proposal for providing an urban level of water service. (if they really just want to help the treatment center)
This argument may confuse those looking for confusion, but allowing the expansion of urban water services in rural areas is simply inconsistent with Whatcom County's Comprehensive Plan and its Planning Policies. Perhaps this is why our county executive thinks the Plan is outdated.
The Comprehensive Plan opposes the extension of urban services in rural areas. Urban water services are those that are of an intensity usually found in cities. They do not magically become rural services when proposed in rural areas. These are urban service levels being proposed, and the county's regulations can not be interpreted to allow it.
The regulations the Hearing Examiner must follow say that the Comprehensive Plan and its policies are to direct the development of utilities in the county. It just so happens that county's water system plan adopted the GMA definitions of urban and rural services.
The role of the hearing examiner is to determine compliance with those regulations, not to disregard them. We'll see.
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