UPDATE: Attorney responds after losing growth dispute to Whatcom County

Posted by Ralph Schwartz on July 1, 2014 

County wins challenge to their controls on population growth

UPDATE: Jean Melious, the attorney representing the four citizens who filed this appeal, responded after this item was posted. Scroll to near the bottom to see her emailed response in full.

Chalk one up for Whatcom County in the rural growth dispute with citizen environmentalists.

A Monday, June 30 decision by the State Court of Appeals favored the county over Eric Hirst, Wendy Harris, David Stalheim and Laura Leigh Brakke. The court ruled that the county had done enough to protect rural areas from too much growth by establishing a new policy to check every year for how much growth had occurred in rural areas, and whether that amount had exceeded county-established limits.

The higher court affirmed the decision of the state Growth Management Hearings Board, which had said the same thing -- the annual check-in on rural population growth was enough to correct previous deficiencies in the county's growth management policies.

Jean Melious, attorney for Hirst, et al., has not yet responded to requests for comment. 

County Council Chairman Carl Weimer said he "scanned" the Appeals Court decision on Monday, when it was sent around to all council members. But he didn't have a strong reaction. It's of much less consequence than an appeal that is still pending between the county and Melious' clients, regarding the county's failure to protect water availability. (Too much growth is allowed in restricted watersheds, threatening stream levels where endangered salmon live. Some fish-bearing streams have water rights for the benefit of wildlife habitat, and those rights have priority over human water users.)

Council member Ken Mann, reached by phone late Tuesday, July 1, also said this case ranks as minor compared to the outstanding water dispute.

"In this case it was a minor issue, and none of us expected to lose," Mann said.

The environmentalists' argument was outlined in the Appeals Court opinion. This extended quote from the opinion serves to provide that outline, as well as the court's reaction to it: 

 

Hirst argues that by having 33,696 (rural) areas available for development when the County has planned for only 2,651 (new residents between now and 2029) is inconsistent and presents significant problems to the comprehensive plan in two ways. First, Hirst contends that the County is not planning but rather reacting. He further asserts that the County will only possibly react when more than 2,651 additional people live in the rural areas. Second, Hirst contends there is nothing to conclude that the County will react. Both of these contentions are without merit.
The (Growth Management Hearings) Board concluded that Policy 2DD-1 (establishing the annual population checks) permitted the County to control rural development. The language used in the policy clearly states that "the County will evaluate development activity in comparison with the urban and rural growth projections and take action as necessary to address discrepancies if any are identified." Indeed, as the Board noted, the policy gives the County the ability to react more quickly.  

 

 

The Hirst party's legal argument may not have passed muster, but the group may still have a good point, Mann said.

"I don't necessarily disagree with (them), but unfortunately these particular litigants take a shotgun approach, suing us on every possible angle to get an outcome," Mann said.

"Whatcom County can win an issue in a court of law. That doesn't mean we're doing a good job making planning decisions."

* * * Jean Melious responded to my emailed questions after this item was posted:

The Court of Appeals' decision responds to the only issue that we appealed.  All other pending appeals are from the County.  I'm sure that Karen Frakes will be happy to provide you with a summary of the County's various appeals. The Court of Appeals' decision will have little practical effect in light of the fact that the County will be adopting a new Comprehensive Plan in 2016.  If the people of Whatcom County like the County's current planning, this decision allows it to be retained.

If Whatcom County residents want to make sure that houses will be built outside of cities, on Agricultural and Rural land, this decision will allow that to occur.  This is a victory for the County, to the extend that the County's planning goal is to ensure that population growth will occur outside of cities.

The County Council will be the final arbiter of this issue.  If the County Council agrees that houses should be built on farm land and "rural" land, this decision allows this to happen.

The decision is unpublished (has no precedential value) and therefore will not affect anyplace other than Whatcom County. 

 

* * *

Setting aside the population growth dispute, which is over for now ... The availability of water in the county, for fish, rural homeowners, farmers, industry and city dwellers is much thornier.

After the Hearings Board ruled in June 2013 that the county wasn't doing enough to protect water quantity in rural areas, the county took the case to the state Court of Appeals. Subsequently, the county appealed, in Skagit County Superior Court, an April 2014 Hearings Board order saying the county remained out of compliance on water quantity. Noting that this case was in the state courts, the Hearings Board agreed on June 10 to stay the cases at its level, to wait for the outcome of the court cases. This means the county won't have to write new rules to satisfy the Hearings Board while these cases remain unresolved in state court. (The county will try to push the Skagit case up to the Appeals Court, and consolidate it with the first appeal.)

The wheels turn, slowly, on a complicated case that might take a couple years to resolve and may go to the state Supreme Court before being decided finally.

 

 

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