The future of rural development in Whatcom County is in limbo, as a divisive legal and political battle about how much growth should be allowed outside cities stretches into its eighth year.
At issue is a far-reaching piece of county legislation called the rural element, which covers everything from water use to the size of hotels on rural land.
The county has tried to set these rules three times since 2005, with a focus on rural areas where urban-like growth is allowed - residential or commercial areas such as Marietta and the Guide Meridian corridor between Bellingham and Lynden. Three times, Futurewise and other petitioners have filed appeals.
Among the most significant issues, according to Futurewise, are the monetary cost of bringing public services to more densely developed rural areas, and increased groundwater pollution resulting from pavement built over green areas.
"It just makes a ton more sense for us (to develop in cities), but everyone wants to develop their own little piece of heaven," said Kate Blystone, director of the Whatcom chapter of Futurewise.
The futility of the county's third attempt to pass a rural element was apparent at the council meeting on Aug. 7, when it was approved.
Blystone told council members that evening, before they voted, that Futurewise believed the rules for rural development were still out of compliance with the state Growth Management Act. Her statement implied that the group would bring the issue once again before the body that hears appeals based on the act, the state Growth Management Hearings Board.
Reasons for the appeal were many and included what Futurewise perceived as loopholes that allowed tourist resorts almost three times as large as Semiahmoo, large water pipelines that would encourage urban-type growth, and allowances for businesses and homes that would not adequately prevent sprawl on undeveloped land.
For their part, county officials said they made significant changes to meet the requirements of state law, including removal of nearly 10,000 rural acres from zones where more intensive development was allowed.
Futurewise misconstrued the impact the ordinance would have on rural growth, the county asserted.
Rather than the unchecked growth the group described, building projects in rural areas wouldn't be allowed to exceed building sizes existing in 1990. Furthermore, "property owners are not free to avail themselves of the maximum development potential in these zones" because of multiple opportunities for public participation, according to a Sept. 21 county filing with the hearings board.
Council member Ken Mann said on Aug. 7 he wanted to approve the ordinance just so the process could move forward, even if only haltingly.
"I don't expect this to get approved," he said then. "I expect (the hearings board) to send it back to us again. They'll approve some stuff. They'll reject other stuff ... and we can work on it all again."
While Blystone in her testimony at that meeting called for "a robust, face-to-face discussion" to negotiate a settlement on the development rules, a conservative member of the council said Futurewise was being unreasonable, and he was just about done with negotiating.
"We're going to sit down when you guys want to get serious about working on a balance of protecting the environment with protecting people's self-reliance and self-ability to steward their property in a way they see fit," council member Sam Crawford said.
Crawford begrudgingly joined a 4-3 majority that passed the Aug. 7 ordinance.
"We've given it our best shot. I think we've gone overboard in some areas" to please the hearings board, he said. "There is no question in my mind this is as far as we're going to go."
The hearings board has said it expects to rule in early December whether the August ordinance is in compliance.
Again, that's not an outcome expected by those involved.
"Frankly, I would be amazed if the county is in compliance - really amazed - on all of them," said Tim Trohimovich, referring to the several disputed issues in the ordinance. Trohimovich is director of planning and law in Futurewise's Seattle office.
From the group's perspective, the ordinance was better in 2009, when the state Supreme Court accepted most of the prior rulings by the Court of Appeals and the hearings board - rulings that were favorable to Futurewise.
The court sent the ordinance back to the hearings board for some adjustments. By the time it came before the county council again, two progressive council members had been replaced by two conservatives.
Kathy Kershner and Bill Knutzen won the 2009 election with the support of rural property owners who didn't like the impending restrictions to development on their land.
Knutzen said in an interview last week that the part of the ordinance that changes the zoning along Guide Meridian from commercial to residential was effectively a land grab.
"It's basically a taking. You have people that have invested in commercial property with the expectation they're going to run their business on their property," Knutzen said. "To give those people no compensation at all, even though they've been paying taxes as if it was commercial - now they've got a residential piece of property that reduced the value of the property substantially."
Council members Knutzen, Crawford and Kershner said the Growth Management Act is being wielded as a political weapon, or at least is so vague as to be open to widely different interpretations.
"Some of us think what we're doing tonight was not the intent of the law," Kershner said on Aug. 7, "making it impossible for (property owners) to grow and have businesses."
"I think GMA, it's holding you accountable to a certain extent, but it just seems like a lot of times it's so agenda-driven by special interest groups that you lose sight of people in the street," Knutzen said in an interview.
In Blystone's view, the will of their constituents was stronger for conservative members of the council than the intent of the act.
"Once the new council was seated, they started making changes consistent with the people that elected them," Blystone said. "I don't know that they were willfully violating the Growth Management Act. They weren't fully aware of the full breadth of the Growth Management Act and all the pieces they needed to know as an elected official."
Even with a wide gulf still existing between the organization and a faction of the council, Futurewise is optimistic about resolving the long-running dispute out of court.
"All the Whatcom County Council members are smart people," Trohimovich said. "We have a wide range of philosophical and political beliefs, and I actually think that can be a good thing. But they'll also look at the situation they're in. ... If something can be figured out, I think that everybody can go to their constituencies and explain to them why this makes sense."
Reach RALPH SCHWARTZ at firstname.lastname@example.org or call 715-2298.