Posted by: sweeneyblog | December 11, 2012

Why is the County Breaking the Law?

Some of you out there may have seen the Bellingham Herald article about the $50,000 Whatcom County has decided to pay a Seattle law firm. Some of you may have read some of the fantastic coverage of this issue over at Get Whatcom Planning, home to two of the smartest land-use experts this side of the Rocky Mountains. But if you are just stumbling into this issue and are wondering what the heck is going on, here is Riley’s over-simplified version.

Let's talk about this "GMA" business

Let’s talk about this “GMA” business

The  Over-Simplified Version: Many years ago, the state passed a law called the Growth Management Act (GMA), that required all county governments in Washington to have a plan for how they wanted to grow. Each county is required to have a little chart in their planning department that says this part of the county will be farm land, in this part of the county it is okay to build some apartment complexes, and this part would be perfect for a nice little residential neighborhood. It doesn’t have to be etched in stone, but they need to have a concrete plan to show how they will deal with population increases over the next twenty years. 

The idea was that if you made the counties do their homework, they would avoid sprawling strip malls and giant condos next to what should have been rural areas. Unplanned growth leads to expensive infrastructure adjustments by the county. “Oh, you want to build twenty houses at the end of this dirt road? Shoot, we thought there was only going to be one person there. Quick, build some water lines and a fire department nearby!”

The problem was Whatcom County didn’t want to do its homework. There was a great deal of rhetoric about “Property Rights!” and “Land Grab” whenever the county tried to outline what parts of the county were going to grow and what parts weren’t. Most of this came from concerned property owners who worried that county plans would keep them from building a giant condominium on their property some day. Not that they were planning to do so right away, they just wanted to make sure they could.

So the county council has repeatedly refused to turn in its homework (or as the state says, “become compliant” with the Growth Management Act).

The County's current solution

The County’s current solution

Still with me? Okay, expand that metaphor! The State Supreme Court (aka “the principal”) decided a few years back that enough was enough, and if Whatcom County wasn’t going to straighten up and do its homework, then they couldn’t build anything at all! Well, the county promised to go home right away and do its homework, but once they got home, they got some high-powered lawyers (aka “the parents”) to argue that their kid didn’t need to do homework. So, while they are in litigation (aka “parent-teacher conferences,”) the county continues to ignore its homework, leaving Futurewise (aka “the tattle-tale”) to keep reminding the principal that the county really needs to become compliant.

We, the taxpayers, are spending $50,000 a year to keep fighting the legal battle over not planning for the future of our county, and we have a lousy case. We can delay the inevitable,  but we will continue to lose in court. Our “parents” can only stall for so long.

The Solution? Tutoring.  It is actually pretty straightforward. Have the tattle-tale help the county with its homework. Simple win-win. Futurewise, and a few other non-profit groups, have offered to mediate with the county to help bring them into compliance with the Growth Management Act. They are willing to do this for free, simply to see the county stop wasting money and get back on track. They aren’t offering to write the whole paper (still with me on the homework metaphor?) but they will offer some pointers on how to finish the essay. The county council reacted to this with severe skepticism, but in a down economy, how much longer can they afford to throw money down the drain?

So that’s the super-simplified version of what is going on. There are more layers to this (developers funding County Council candidates, Futurewise being tied to RESources in people’s mind, a discussion of infill) but for now we will leave it here. If you are interested in this, your first stop should be the aforementioned Get Whatcom Planning. After that, the Cascadia Weekly has done a great job covering this issue.



  1. In a perfect world, the nine lumps on the council that refuse to do their work would pay personally for the privilege of shirking their law-defined duty. Maybe if the taxpayer’s purse wasn’t always available, some guts might be found to rectify the situation regardless of the pressures to not do so.

    • I think you mean “seven lumps” but yes. It should be noted that Carl Weimer repeatedly objected to spending that money.

      • There are only seven lumps on the council and I will excuse Mr. Weimer from the tally due to his refusal to kick the can down the road, taxpayer style.

  2. Nice summary of the situation. The Council’s behavior in this matter does not give me too much optimism that they will adopt a more temperate, sophisticated and insightful posture when deciding on Gateway Pacific permits.

  3. Probably the biggest mistake was not asking the hearings board for a new decision after the Supreme Court sent it back. Talk about guessing at what to do next. Take one part broken decision, add yellow and green signs, mix and bake for several years. Not tasty.

    • Clayton, that doesn’t make any sense. In its 2009 Gold Star decision, the Supreme Court upheld the Hearings Board and found that the County had not complied with the rural element requirements of the GMA with respect to more intense rural development. We have a recent decision from the Hearings Board (2012 — Governors Point v Whatcom County) that found that the County still hasn’t complied with the GMA. The County got plenty of feedback.

      • Or to run with the metaphor – the Principal said that yes, Whatcom County, you have to do your homework, and no matter which teacher the County asked, they all agreed that turning in a wadded up piece of paper saying “NO!” does not qualify as doing your homework.

      • The bright line issue was key to the hearings board decision. It should have gone back for a complete review. All the stuff that came after may or may not have come up. I guess we’ll never know since that isn’t what happened.

  4. Actually Riley, the Supreme Court overturned much of the Hearings Board decision and sent it back to the Hearings Board for a new decision. Instead of asking the board to reasses their decision based on two Supreme Court decisions (Thurston County and Goldstar) and then begin to work on the rural element based on a new Hearings Board decision, the County decided to appease Futurewise and move forward based on the old, flawed decision. Also, your summary is based on an assumption that the challengers will win their new challenge. Wouldn’t it be better to wait for a decision before examining why Whatcom County isn’t “following the law.” Maybe it is and the challengers are wrong.

    • Why not wait? Because the local process doesn’t pass the Smell Test and whether it can be legally sanctioned or not, it’s poor planning policy to allow a few monied interests to sprawl their way across our communities. Even if you make your living greasing that sprawl.

    • Jack is wrong in his statement that the Supreme Court overturned much of the Hearings Board decision. The fact is that they upheld almost all of that decision, sending back one issue that had already been decided by an earlier ruling in Thurston County about bright lines.

      You see, Jack’s developer buddies convinced the Council in 1997 to kick the can down the road on the rural element, hoping that they wouldn’t be required to update the rural element (LAMIRDs). Meanwhile, everything proceeded with old rules in place until 2009. That is 12 years of vesting, and if anyone wants to see the number of wells drilled in surface water basins closed for appropriation, or how many lots created in areas where nitrate levels exceed standards, or how many lots and homes were built in the Lake Whatcom watershed while everyone around here sat on their proverbial rear ends….let me know, I’d be glad to share that data and/or maps with you.

      But, then came along two people, one smart (Jean) and one dumb enough to take on this fight (me), plus some other especially good-hearted citizens (Hirst, Harris, Brakke), that said enough is enough. This time, however, they had the data and facts on their side, along with the law. And they (we) got something called invalidity.

      You may have heard something about the Council of Invalids. You see, invalidity is something special because if it continues to stick, then no one can go on as if life is normal waiting for a Supreme Court ruling 12 years later that says, yep, Hearings Board, you had that decision right in 2004.

      We will see what the Hearings Board will do. Any do. I think that we clearly made our case, and no $375 per hour Seattle attorney will get over the deference that the Courts must pay to the Hearings Board decision because we provided one heck of a record for this case. One heckuva record. And, we have the best attorney in town on our side.

      • That was really good. It makes me happy to see in print and in facts all the reasons I feel like I can’t trust people that talk like Mr. Petree.

    • Jack, you’re not even talking about the Hearings Board decision that is actually at issue. In January 2012, the HB found that the County had not followed the law in adopting its rural element (Governors Point v Whatcom County). That’s what we’re talking about. Not that your depiction of the Goldstar decision is accurate, either, but let’s deal with one problem at a time.

  5. I purposefully don’t follow property rights issues because in Whatcom County the entire battle seems such a sophomoric struggle between the reactionary and often thuggish right wing and the hopelessly non- quantitative and utopian left wing. The right wing can’t seem to embrace environmental and strategic planning. The left wing can’t accept economic growth. The struggle itself is such a consuming and pathological public spectacle at this point that the beneficial trade offs of public revenue stream from private enterprise are simply squandered here.

    California’s legal system (for all its sprawl) actually handles this debate with less conflict, although I’m not sure exactly why. I know from relatives in planning positions that local governments can milk developers for quite a bit more than is allowed in WA, yet there is less centralized (state level) regulation.

    Having lived in cities like San Francisco and Emeryville where remarkably pro growth Democrats (albeit sometimes arrogant and corrupt) promoted and secured extensive urban growth, I am always very surprised to see this issue shake out left vs.right. Last I looked, Willie Brown was still alive. Perhaps he is available for conflict mitigation?

  6. […] seemed to really like my simple explanation I posted last week titled, “Why is the County Breaking the Law?“. Building on that, I would like to offer a simple explanation about what is going on in […]

  7. […] a “simple explanation of the fiscal cliff” in the style of my two recent pieces “Why is the County Breaking the Law?” and “What is going on with the State Legislature?“. If […]

  8. […] For many years, Whatcom County has been violating the state law governing planning for our community. Failing to comply with this law, called the Growth Management Act (GMA), has cost us thousands of dollars in legal fees and made us ineligible for hundreds of thousands of state dollars. You can read my simple explanation of all this here. […]

  9. […] Once again, the County lost in court, with the Growth Management Hearings Board once again ordering Whatcom County to comply with the Growth Management Act. I wish it didn’t take so much time and money from private citizens to force the County to do its job, but it looks like they are going to waste even more taxpayers money on this. We have already spent over $100,000 on a Seattle-based legal team that keeps losing in court, yet the County Council is considering paying them another $40,000 to keep fighting a law that was settled twenty years ago. If you are just tuning into this fight, check out my simple explanation of the Growth Management Act and why Whatcom is doing this here. […]

  10. […] Technically, the race is non-partisan but with Mike McAuley asking for both parties endorsements (and so far, receiving the Whatcom Democrats) I asked him where he falls. “I’m a little more right of center than most.” Do you consider yourself a Republican? “You know, that is the hardest question you have asked me. I was a Republican for years, but now, I’m not a fan of either party. When the party matters more than the idea, I hate that. Philosophically, I’m a free market guy, all the way, but I don’t think ideas are only in one party.” However he did endorse Tea Party darling Tony Larson in 2011 and has voted with the rest of the Planning Commission to keep breaking the law. […]

  11. […] great way to ease into this topic is Riley Sweeney’s blog post, “Why is the County Breaking the Law?“  Riley shares an admittedly over-simplified analogy of a school child refusing to turn in […]

  12. […] it Simple, Sweeney: Still confused by the fight over the Growth Management Act? Befuddled by what happened to the State Legislature this year? Wondering why Gun Safety is so […]

  13. […] to the coal train issue? How do we end the uncertainty created by the lack of compliance with the GMA (Growth Management Act) – uncertainty that is affecting everybody in county. How do we  position the community for […]

  14. […] the tea party roots still remain. She continues to waste over $140,000 on Seattle lawyers so the county can keep breaking the law. She had to be dragged, kicking and screaming, into voting to protect our drinking water with the […]

  15. […] explaining the Growth Management Act, I usually use the metaphor of a teacher and a student. The Growth Management Act says that every student  (county) has to do their homework (create a […]

  16. […] local political issues, check out some of these articles: Bellingham Waterfront 101, what is the Growth Management Act, and why can’t we pass gun […]

  17. […] John Lesow, long-time planning commissioner who identifies as conservative but has supported reasonable land use policies over the last years, including compliance with the growth management act. […]

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