Where There’s Smoke and No One’s Fired
Where There’s Smoke and No One’s Fired
Karen Frakes is legal advisor to the Whatcom County Council,.though I will leave it to you to decide who she really represents. She’s a deputy in Dave McEachran’s office.
Professor Bentham o
Professor Bentham o
Karen Frakes is legal advisor to the Whatcom County Council,.though I will leave it to you to decide who she really represents. She's a deputy in Dave McEachran's office.
Professor Bentham observed, “Lawyers are the only persons in whom ignorance of the law is not punished.” I will leave it to you to decide who should punish her.
The council relies on the county attorney for objective legal advice, research and candor, not advocacy of some agenda. The council is the policy making body. The county attorneys are their advisors, not lobbyists.
The council is at times called upon to sit as a quasi judicial body to hear appeals of zoning and development regulations. Though Ms. Frakes is their primary legal advisor, the council was wise enough to select a lawyer as their administrative aid. Perhaps some on the council sensed the partisanship of the county attorneys.
Above and beyond the duty owed a client to provide a comprehensive explanation of the law, the arguments for and against a position, attorneys swear to uphold certain rules of professional conduct as well. One of these duties is candor. That is, not to withhold information they know is critical to having all evidence necessary to reach a just decision. When Ms. Frakes advises the council, I submit, both duties are in play.
Based on her advice, and her drafting, the county council recently ruled, allegedly based on the Whatcom County Code, that water services at intensities commonly found in our urban areas are outright permitted in all areas of the county and do not violate the Growth Management Act's prohibition on expansion of urban services in rural areas.
Ms. Frakes advised the council, sitting in their quasi judicial capacity as an appellate body, that expansion of domestic water service in rural areas, at intensities usually found in urban areas, was consistent with the Whatcom County Code, the Whatcom County Comprehensive Plan and the Growth Management Act. Ms. Frakes withheld documents from the council that were material to their making an informed decision.
Unfortunately, she was wrong on all counts.
More unfortunate, one consequence of the council's ruling was to remove the remaining obstacle for the developer and Lake Whatcom Water & Sewer District to move forward under their agreement to extend water service onto Squalicum Mountain for Vineyard Development. The condition? That the county didn't find it inconsistent with the Growth Management Act.
The water district had already reached an agreement with the Lake Whatcom Residential Treatment Center to acquire their water system, a preliminary step in the process outlined in the feasibility study commissioned by the developer and the water district to provide water to Vineyard.
Thankfully there were a few people who understood the fallaciousness of Ms. Frakes' position and were willing to assume the burden, in criticism and expense, of opposing her, the county and the water district. And thanks too that there was a judge who would not be confused by smoke and mirrors.
The code Ms. Frakes relies upon allows this intensity of water service where it is in conformance with the Whatcom County Coordinated Water System Plan and consistent with the Whatcom County Comprehensive Plan.
Now the Whatcom County Comprehensive Plan seems pretty unambiguous when it states that we shall, “discourage extension of urban levels of water service to areas not designated as urban growth areas.”
And the water plan adopts the state legislature's definition of rural services to distinguish between rural and urban levels of water service in Whatcom County. Here's the legislature' s definition: “Rural services” include those public services and public facilities historically and typically delivered at an intensity usually found in rural areas, and may include domestic water systems, fire and police protection services, transportation and public transit services, and other public utilities associated with rural development and normally not associated with urban areas.
Please note: may include domestic water delivered at an intensity normally not associated with urban areas. Noteworthy because this is what the Western Washington Growth Management Hearings Board also said in Evergreen v. Skagit County and elsewhere. “Rural services must be 'historically and typically' at an intensity not found in urban areas but found in rural areas.”
Not really consistent with Ms. Frakes' advice that water services at intensities commonly found in urban parts of the county are outright permitted in all areas of the county. (I swear those were her exact words. “All,” even resource lands like the forest on Squalicum Mountain I guess.)
The Growth Management Hearings Board is the body specifically established to interpret and rule on the meaning and implications of the Growth Management Act. Last I checked, Ms. Frakes was not a board member.
So what is the county's argument? They ignore the need to distinguish between urban and rural intensities of water service. The county attorneys take the position that the underlying rural zoning, a current, often temporary, prohibition on urban density, is sufficient to prevent any given intensity of water service from facilitating the sprawling low density development the Growth Management Act and our Comprehensive Plan intend to discourage.
On the other hand, the courts have pointed out when prohibiting the expansion of urban services, most notably in Cooper Point v. Thurston County, that the push for further development or future reclassification of rural lands to urban growth areas would be likely, if not inevitable, if services like water and sewers, at intensities found in urban areas, are not generally barred from our rural lands.
There are situations where it is lawful, with appropriate provisions, to expand urban services in rural areas when necessary. Why won't the county just acknowledge it's necessary we make an exception here, instead of using this as cover to justify the expansion of water services wherever they choose?
Oliver Wendell Holmes, a jurist of some repute, certainly speaking from experience, once pointed out that, “lawyers spend a great deal of their time shoveling smoke.” Things haven't changed much.
So whose smoke are you shoveling Ms. Frakes?
Professor Bentham observed, “Lawyers are the only persons in whom ignorance of the law is not punished.” I will leave it to you to decide who should punish her.
The council relies on the county attorney for objective legal advice, research and candor, not advocacy of some agenda. The council is the policy making body. The county attorneys are their advisors, not lobbyists.
The council is at times called upon to sit as a quasi judicial body to hear appeals of zoning and development regulations. Though Ms. Frakes is their primary legal advisor, the council was wise enough to select a lawyer as their administrative aid. Perhaps some on the council sensed the partisanship of the county attorneys.
Above and beyond the duty owed a client to provide a comprehensive explanation of the law, the arguments for and against a position, attorneys swear to uphold certain rules of professional conduct as well. One of these duties is candor. That is, not to withhold information they know is critical to having all evidence necessary to reach a just decision. When Ms. Frakes advises the council, I submit, both duties are in play.
Based on her advice, and her drafting, the county council recently ruled, allegedly based on the Whatcom County Code, that water services at intensities commonly found in our urban areas are outright permitted in all areas of the county and do not violate the Growth Management Act's prohibition on expansion of urban services in rural areas.
Ms. Frakes advised the council, sitting in their quasi judicial capacity as an appellate body, that expansion of domestic water service in rural areas, at intensities usually found in urban areas, was consistent with the Whatcom County Code, the Whatcom County Comprehensive Plan and the Growth Management Act. Ms. Frakes withheld documents from the council that were material to their making an informed decision.
Unfortunately, she was wrong on all counts.
More unfortunate, one consequence of the council's ruling was to remove the remaining obstacle for the developer and Lake Whatcom Water & Sewer District to move forward under their agreement to extend water service onto Squalicum Mountain for Vineyard Development. The condition? That the county didn't find it inconsistent with the Growth Management Act.
The water district had already reached an agreement with the Lake Whatcom Residential Treatment Center to acquire their water system, a preliminary step in the process outlined in the feasibility study commissioned by the developer and the water district to provide water to Vineyard.
Thankfully there were a few people who understood the fallaciousness of Ms. Frakes' position and were willing to assume the burden, in criticism and expense, of opposing her, the county and the water district. And thanks too that there was a judge who would not be confused by smoke and mirrors.
The code Ms. Frakes relies upon allows this intensity of water service where it is in conformance with the Whatcom County Coordinated Water System Plan and consistent with the Whatcom County Comprehensive Plan.
Now the Whatcom County Comprehensive Plan seems pretty unambiguous when it states that we shall, “discourage extension of urban levels of water service to areas not designated as urban growth areas.”
And the water plan adopts the state legislature's definition of rural services to distinguish between rural and urban levels of water service in Whatcom County. Here's the legislature' s definition: “Rural services” include those public services and public facilities historically and typically delivered at an intensity usually found in rural areas, and may include domestic water systems, fire and police protection services, transportation and public transit services, and other public utilities associated with rural development and normally not associated with urban areas.
Please note: may include domestic water delivered at an intensity normally not associated with urban areas. Noteworthy because this is what the Western Washington Growth Management Hearings Board also said in Evergreen v. Skagit County and elsewhere. “Rural services must be 'historically and typically' at an intensity not found in urban areas but found in rural areas.”
Not really consistent with Ms. Frakes' advice that water services at intensities commonly found in urban parts of the county are outright permitted in all areas of the county. (I swear those were her exact words. “All,” even resource lands like the forest on Squalicum Mountain I guess.)
The Growth Management Hearings Board is the body specifically established to interpret and rule on the meaning and implications of the Growth Management Act. Last I checked, Ms. Frakes was not a board member.
So what is the county's argument? They ignore the need to distinguish between urban and rural intensities of water service. The county attorneys take the position that the underlying rural zoning, a current, often temporary, prohibition on urban density, is sufficient to prevent any given intensity of water service from facilitating the sprawling low density development the Growth Management Act and our Comprehensive Plan intend to discourage.
On the other hand, the courts have pointed out when prohibiting the expansion of urban services, most notably in Cooper Point v. Thurston County, that the push for further development or future reclassification of rural lands to urban growth areas would be likely, if not inevitable, if services like water and sewers, at intensities found in urban areas, are not generally barred from our rural lands.
There are situations where it is lawful, with appropriate provisions, to expand urban services in rural areas when necessary. Why won't the county just acknowledge it's necessary we make an exception here, instead of using this as cover to justify the expansion of water services wherever they choose?
Oliver Wendell Holmes, a jurist of some repute, certainly speaking from experience, once pointed out that, “lawyers spend a great deal of their time shoveling smoke.” Things haven't changed much.
So whose smoke are you shoveling Ms. Frakes?
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