Is It or Isn’t It; Are They or Aren’t They?
Is It or Isn’t It; Are They or Aren’t They?
Apparently Whatcom County is adopting a new policy regarding the use of its forestlands. The county is about to reverse itself and no longer prohibit activities incompatible with long-term forestry i
Apparently Whatcom County is adopting a new policy regarding the use of its forestlands. The county is about to reverse itself and no longer prohibit activities incompatible with long-term forestry in the commercial forest zone. The Comprehensive Plan had been quite specific where it defined incompatible uses to, "include those which permanently remove a significant portion of a parcel from productive forest use."
What's next, cluster developments?
The county's Draft Comprehensive Park Plan includes many elements that not only threaten Lake Whatcom, but should be carefully reexamined because they violate the Growth Management Act principle that not only prohibits incompatible uses on resource lands designated as a base for related industries, but discourages even locating such uses nearby.
Should the county integrate the park plan into the Whatcom County Comprehensive Plan in its present form, including the planned reconveyance of some 8,400 acres of commercial forestlands and their conversion to a forest preserve that prohibits commercial forestry, the park plan will certainly be inconsistent with the Comp Plan.
So why is the County Council going to start implementing the plan, authorize the executive to make an agreement with the Department of Natural Resources, and immediately add some $300,000 more to the budget deficit they already face before it's even made part of the Comp Plan and allowed to be challenged to determine if the proposed plan is consistent?
Why not postpone the expense, integrate the Draft Park Plan first, and see if it withstands the inevitable challenge of inconsistency? If it's inconsistent, why waste the money? The land won't go away. What's the rush?
It appears the County Council is afraid to proceed more cautiously because of the pressure from a lobby that could care less if the proposal is illegal and wants their plan pushed through before the county's fiscal morass becomes public knowledge.
The proponents doubt this proposal would ever fly when county residents are soon faced with new taxes and shrinking services. They don't want the farm community's objections, using funds intended to purchase development rights to be used for the park instead, time to be considered. They know their park won't look so good when its costs entail sacrificing more critical water projects that would have real benefits for Lake Whatcom.
To allow the county to move on with the Memorandum of Agreement is a mistake though because the agreement itself will probably be challenged as a de facto amendment to the Comprehensive Plan anyway. This is a disservice to the public that will bring unnecessary legal expense to the county.
At the time the plan was announced, Kremen proposed a 60-day public process to examine the merits of the proposal. He said, "We think that this is a winning strategy to offer long-term continued protection of our local drinking water, and new parkland opportunities for our fast-growing population. Now we will take the proposal to the community and listen to their ideas and concerns."
Instead he hand picked a review panel, the majority of whom he could count on to ratify the decision. The argument that this will provide protection for the reservoir has faded into oblivion.
It is regrettable that the county so stubbornly resists a true public process, such as for a Comp Plan amendment with its related SEPA process, before undertaking such a controversial action. It seems somewhat cavalier to dismiss the concerns of so many, and press them to mount a legal challenge simply to have this decision considered in an appropriate manner.
According to its own language, this MOA will “govern all actions by the County” necessary to exchange and subsequently re-convey certain forestlands in the Lake Whatcom watershed for park purposes, pursuant to RCW 79.22.300.
After the council approves signing the MOA there is no turning back. They have agreed to accept return of these lands DNR (because of the Landscape Plan) wants to abandon; and accepted all the associated liabilities that come with them. The administration dissembles when they say approval will come after the exchanges of lands takes place.
It is noteworthy that the state law that establishes the procedures and conditions on the basis of which a county can request the transfer of forestlands predates the Growth Management Act and is generally inconsistent with the Act's mandate to designate and conserve resource lands. As such, it is being pursued here as little more than a loophole through which to avoid the current law.
In as much as the “park purposes” that the county has planned entail discontinuing commercial forestry, the MOA represents a modification of the present Comprehensive Plan.
The ruling in City of Anacortes v. Skagit County and Dept of Ecology is pretty clear. “A comprehensive plan amendment is ... a change which alters, modifies, rephrases, adds to or subtracts from the comprehensive plan.”
In Skagit County Growthwatch v. Skagit County and Day Creek Sand and Gravel, the Growth Management Hearing Board found that a legislative action may constitute a comprehensive plan amendment even if it was not adopted as one.
And in Alexanderson v. Clark County. the Court of Appeals determined that an agreement will be a de facto comprehensive plan amendment where, under its terms, it allows something that was previously forbidden by the comprehensive plan.
In Alexanderson the court found that the language of a county's memorandum understanding, while not explicitly amending the Comprehensive Plan, had the “actual effect of doing so” because it allowed the land to be used in a manner inconsistent with its current land use designation. The Court noted that it was a de facto plan amendment because, “what was previously forbidden is now allowed”. In City of Anacortes the board noted the converse was similarly true: an understanding or agreement is a de facto amendment if it prohibits a use that was previously allowed.
The MOA that the county council is now considering, which commits the county to accept these lands for a use the county says will exclude commercial forestry, allows what was previously forbidden, an incompatible use; and the county will now prohibit commercial forestry in a substantial portion of the commercial forest zone where it was previously allowed.
So again let me suggest, before we lay out a veritable banquet on which the legal community can feast, that we honestly address the amendment of our Comprehensive Plan before we agree to take these lands out of forestry.
Kremen's park director has truly honed his word parsing skills. Having already done an admirable job explaining how a park is not a park, perhaps he can now entertain us with his reasoning how prohibiting commercial forestry will allow it.
You can be sure he'll find a way to tell us we are but we aren't
What's next, cluster developments?
The county's Draft Comprehensive Park Plan includes many elements that not only threaten Lake Whatcom, but should be carefully reexamined because they violate the Growth Management Act principle that not only prohibits incompatible uses on resource lands designated as a base for related industries, but discourages even locating such uses nearby.
Should the county integrate the park plan into the Whatcom County Comprehensive Plan in its present form, including the planned reconveyance of some 8,400 acres of commercial forestlands and their conversion to a forest preserve that prohibits commercial forestry, the park plan will certainly be inconsistent with the Comp Plan.
So why is the County Council going to start implementing the plan, authorize the executive to make an agreement with the Department of Natural Resources, and immediately add some $300,000 more to the budget deficit they already face before it's even made part of the Comp Plan and allowed to be challenged to determine if the proposed plan is consistent?
Why not postpone the expense, integrate the Draft Park Plan first, and see if it withstands the inevitable challenge of inconsistency? If it's inconsistent, why waste the money? The land won't go away. What's the rush?
It appears the County Council is afraid to proceed more cautiously because of the pressure from a lobby that could care less if the proposal is illegal and wants their plan pushed through before the county's fiscal morass becomes public knowledge.
The proponents doubt this proposal would ever fly when county residents are soon faced with new taxes and shrinking services. They don't want the farm community's objections, using funds intended to purchase development rights to be used for the park instead, time to be considered. They know their park won't look so good when its costs entail sacrificing more critical water projects that would have real benefits for Lake Whatcom.
To allow the county to move on with the Memorandum of Agreement is a mistake though because the agreement itself will probably be challenged as a de facto amendment to the Comprehensive Plan anyway. This is a disservice to the public that will bring unnecessary legal expense to the county.
At the time the plan was announced, Kremen proposed a 60-day public process to examine the merits of the proposal. He said, "We think that this is a winning strategy to offer long-term continued protection of our local drinking water, and new parkland opportunities for our fast-growing population. Now we will take the proposal to the community and listen to their ideas and concerns."
Instead he hand picked a review panel, the majority of whom he could count on to ratify the decision. The argument that this will provide protection for the reservoir has faded into oblivion.
It is regrettable that the county so stubbornly resists a true public process, such as for a Comp Plan amendment with its related SEPA process, before undertaking such a controversial action. It seems somewhat cavalier to dismiss the concerns of so many, and press them to mount a legal challenge simply to have this decision considered in an appropriate manner.
According to its own language, this MOA will “govern all actions by the County” necessary to exchange and subsequently re-convey certain forestlands in the Lake Whatcom watershed for park purposes, pursuant to RCW 79.22.300.
After the council approves signing the MOA there is no turning back. They have agreed to accept return of these lands DNR (because of the Landscape Plan) wants to abandon; and accepted all the associated liabilities that come with them. The administration dissembles when they say approval will come after the exchanges of lands takes place.
It is noteworthy that the state law that establishes the procedures and conditions on the basis of which a county can request the transfer of forestlands predates the Growth Management Act and is generally inconsistent with the Act's mandate to designate and conserve resource lands. As such, it is being pursued here as little more than a loophole through which to avoid the current law.
In as much as the “park purposes” that the county has planned entail discontinuing commercial forestry, the MOA represents a modification of the present Comprehensive Plan.
The ruling in City of Anacortes v. Skagit County and Dept of Ecology is pretty clear. “A comprehensive plan amendment is ... a change which alters, modifies, rephrases, adds to or subtracts from the comprehensive plan.”
In Skagit County Growthwatch v. Skagit County and Day Creek Sand and Gravel, the Growth Management Hearing Board found that a legislative action may constitute a comprehensive plan amendment even if it was not adopted as one.
And in Alexanderson v. Clark County. the Court of Appeals determined that an agreement will be a de facto comprehensive plan amendment where, under its terms, it allows something that was previously forbidden by the comprehensive plan.
In Alexanderson the court found that the language of a county's memorandum understanding, while not explicitly amending the Comprehensive Plan, had the “actual effect of doing so” because it allowed the land to be used in a manner inconsistent with its current land use designation. The Court noted that it was a de facto plan amendment because, “what was previously forbidden is now allowed”. In City of Anacortes the board noted the converse was similarly true: an understanding or agreement is a de facto amendment if it prohibits a use that was previously allowed.
The MOA that the county council is now considering, which commits the county to accept these lands for a use the county says will exclude commercial forestry, allows what was previously forbidden, an incompatible use; and the county will now prohibit commercial forestry in a substantial portion of the commercial forest zone where it was previously allowed.
So again let me suggest, before we lay out a veritable banquet on which the legal community can feast, that we honestly address the amendment of our Comprehensive Plan before we agree to take these lands out of forestry.
Kremen's park director has truly honed his word parsing skills. Having already done an admirable job explaining how a park is not a park, perhaps he can now entertain us with his reasoning how prohibiting commercial forestry will allow it.
You can be sure he'll find a way to tell us we are but we aren't
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