Friday, April 9, 2010

April 13, 2010 - Issue of the Week

Are You Part of the “Affected Community?”

This is shaping up to be quite a week for the future of Whatcom County. As you probably know late last year the County Council adopted new Urban Growth Area (UGA) boundaries throughout the county based pretty much on the recommendations of Pete Kremen and his planning department staff. I thought these new boundaries did a good job of matching the desires of developers and the cities with the extensive analysis done regarding how much additional area for urban growth was actually needed.

Of course not everyone was happy, especially some large developers who have a variety of proposals which could have made them significant piles of cash. Those proposals were not included in the new UGAs because the current analysis does not justify the need for them, or the public cost for proceeding at this time.

Here in Whatcom County these speculative developers are used to getting their way and the balanced approach that the County has been using for the past few years to try to comply with the law under the Growth Management Act has slowed them down. There now appears to be a concerted effort by these speculators, and the land use consultants and attorneys they fund, to once again return the County to the good old days when they can implement their schemes with little thought of what may be good for the community as a whole.

Below is just one example of the new push to once again marginalize the County Planning Department, and perhaps push out the planners we have who have tried so hard to balance the needs of the whole community. Pay close attention how these speculators refer to themselves as the “affected community” as if the rest of us that have to pay for the huge costs (roads, sheriff, fire, etc) to support their money making schemes are not part of the community. Hopefully my fellow council members and the County Executive can see through this blatant attempt by the development community to remove any barrier in their path and install themselves as the “advisors” for how this community grows.

Dear Council and Executive Kremen:

We attended your Planning and Development Committee meeting held at 3:00 p.m., March 30, 2010.

Why is it that your Planning Director and Planning Department continue to fail to provide the County Council with a full range of options available to it when dealing with the Rural Element and LAMIRDs? For quite some time, the Council has requested options. What you get in return is restrictions, limitations, and no's. Why doesn't the Council hire someone to give it straight, unbiased answers, without promoting some hidden agenda? There are plenty of people around who could provide that service.

What does Gary Davis mean when he says that the recommendation of the old Planning Commission is based on policy determinations that group made? Would it be too much trouble for him to explain to the Council exactly what those policy determinations were and why the current Council is bound by them? After all, it is the County Council that sets policy, the Planning Commission only recommends.

As many of you know, there is great distrust of the Planning Department and its Director in the affected community. You really should consider another alternative for your advisor.

Thanks for your consideration.

Belcher Swanson Law Firm, P.L.L.C.
900 Dupont Street
Bellingham, WA 98225
(360) 734-6390
(360) 671-0753

On Monday the Council will spend a good deal of the day having discussions with many of these developers and their hired guns about possible “settlements” to their various complaints. I hope the new Council majority will remember that there is a much larger “affected community” that they are also supposed to consider.

******** UPDATE 4/11/2010 ***********

I was in Texas Wednesday through Friday, so I stopped by the Council office on Saturday to pick up my packet. In my box I found a copy of a letter (click here to download) to Executive Kremen signed by three Council members (Crawford, Nelson, Kershner). The letter was a strongly worded criticism (I would suspect drafted by a land use attorney) of the Planning Director's handling of some very complicated vesting issues. It appears that these council members have also now joined with the development community to try to push out one of the best planning directors Whatcom County has had in years.

The vesting issues that the letter purports to be about are very complicated and I don't want to get into them here. Suffice it to say that their arguments are very one sided, and the proposed solution that is provided is no solution at all but a clever way to let developers do whatever they like while providing an appearance that the County still has some control or concern for public health and the environment.

What is more concerning about this letter is that a minority of the Council clearly suggests that the Planning Director take specific action. In one place the letter states "we call upon the Planning Director to implement land-use control regulations in a manner..." It goes on to say that "This is a reasonable request and expectation on the part of the legislative body of Whatcom County." This is a pretty outrageous letter considering the entire Council has not yet discussed this issue or taken any formal action as spelled out in the code that would give these members the authority to speak on behalf of "the legislative body of Whatcom County." The County Charter (Article 2, Section 2.24) also clearly states:
"... individual councilmembers shall not interfere in the administration of the executive branch. They shall not give orders to or direct, either publicly or privately, any officer, or employee subject to the direction and supervision of the County Executive..."
These three clearly owe the entire Council and the Executive an apology for overstepping their authority!

When David Stalheim was first hired I was quite skeptical of his abilities, and some of his early personnel decisions within his department concerned me. I kept these concerns to myself because the Charter and Code clearly make this the realm of the County Executive and also make it clear that the Council should not meddle in these areas. Over the past couple years Mr Stalheim's management and grasp of planning issues has continually impressed me as he created an almost entirely new planning department which has operated very well in the midst of hugely controversial issues they inherited. If there ever was a time to keep such an individual at the helm now is it, and I hope Mr Kremen rejects this clear attempt by the development community to once again create chaos so they can have their way, and gives his full support to the individual he made such a wise decision hiring in the first place.

******** UPDATE 4/21/2010 ***********
Much has transpired since I wrote the original post above. The new majority of the Council has set in motion a sweeping giveaway to the development, I mean "affected," community. With no thought of asking for any public benefit (TDRs, PDRs, impact fees, etc) they have set in motion a settlement that will make some developers rich and ultimately cost taxpayers a bundle. Hopefully Executive Kremen will refuse to play this game! For an extremely well written account of this entire giveaway check out this week's Gristle in the Cascadia Weekly.


  1. Thanks again for providing an interesting view. Swanson represents Goldstar. Goldstar has made huge profits from past Council action and just got another win when the Council dropped the transfer of development rights requirement for the upzone they were granted in 2004. Thanks for doing the right thing on that issue.

  2. The following was sent to me directly from John Lesow who was having trouble posting directly.

    John Lesow Said:

    Jack Swanson wants Pete Kremen to fire Planning Director David Stalheim.  Bad idea.

    Does Pete want to conclude his political career by submitting to pressure from land use lawyers on matters that will be ultimately adjudicated by Hearings Boards and Washington Courts?  This is no time to get wobbly.  We need David Stalheim now, more than ever.

    Where is the upside for Pete in this political calculation?  Will another change in Planning Directors appease the "affected community"?  The decisions by the Planning Commission and County Council on LAMIRDS and Rural Element were based on exhaustive study and public involvement.  Mr. Swanson's Canadian clients may not have liked the result, but that is no justification for Jack to call for the head of the Planning Director--or any member of the Planning Staff.

    Can Jack Swanson, Bob Tull, Jack Petree or Bob Weisen make a compelling case that our Urban Growth Areas are too small?  Because that is what this whole controversy boils down to.  Ironically, the consensus that our UGAs are oversized was validated by Executive Kremen himself.  Why would Pete back away from his own plan, which was endorsed by the County Planning Commission and County Council?

    Three years ago, there was dissatisfaction in the "affected community" about resizing the County's bloated Urban Growth Areas.  And there was similar pressure for Planning Director Hal Hart to resign.  Lacking any support from his boss, Hart left.  As did Assistant Director Dennis Rhodes and a half dozen other planners that comprised a wealth of talent and institutional memory at the Planning Department.

    The disruption that followed was welcomed by the development community.  Planning delays provided more time to vest properties, weaken responsible environmental measures and demagogue land use for future political campaigns.  Similar to the situation that exists today.

    I can't fathom that our County Executive would want a reprise of 2007.  Or that our new Property Rights Councilmembers--and Planning Commissioners--would support any more purges at the County Planning Department.

  3. I attended the Planning Committee Meeting on March 30, 2010, so I know first hand that Swanson's accusations are false and outrageous.

    Director Stalheim and his staff did an outstanding job of explaining LAMIRDS in general. Specially, they explained the policy adopted by the Planning Commission in making its recommendations, as well as three alternative options that the Council could use should it choose to reject the Planning Commission's recommendations. There was never any question that the final decision rested with Council, and that Council intended to explore these options, as confirmed by the minutes from this meeting, posted on the County website.

    What the minutes do not reflect is the compliment paid to the Planning Department by County Council Member Kershner after the presentation, which was echoed by the head nods of other Council Members. Ms. Kershner stated that this was the most helpful explanation that she had received to date on the LAMIRD issues and that she had a much better understanding of this matter thanks to the Planning presentation.

    Where was Jack Swanson when County Council was expressing its appreciation for the very presentation that he criticized? Is there no depth too low for the development lobby to sink in its relentless crusade for profits at the public's expense.

    A question that needs to be answered is who on the Council is encouraging and/or supporting these type of bully tactics? Perhaps the Council Chairperson can answer that for us, although it will probably have to wait until he is done coddling the UGA plaintiffs by holding a meeting that is clearly meant to undue all the work done last year by the prior County Council.

    Wendy Harris

  4. Well, what a coincidence! Jack Swanson, author of the letter criticizing Stalheim's performance, happens to be a partner of a law firm that specializes in using short plat applications to argue that this has vested the right to develop property in the future, so that pesky CAO and SMP requirements do not burden people who wish to build new homes in the Lake Whatcom and Drayton Harbor watersheds. David Stalheim has been a real pain to Jack and his clients by asserting that vested rights for short plat subdivisions do not vest rights for building applications. And now, Stalheim is being criticized for his position on short plat vesting in an artfully drafted and legally sophisticated letter issued by County Council Members who lack any legal training.

    If I was a cynical person, I would almost suspect that someone from Jack Swanson's law firm drafted this letter, which was then signed and issued by three Council Members who may be unlikely to fully understand the nuances of the legal issues discussed in their own letter, but do understand that Stalheim stands in the way of unregulated development in sensitive watersheds.

    Hey Carl, if I draft a letter on a legally complex issue that you really do not understand, would you sign it and send it to the County Executive so that I can get someone that I do not like fired?

  5. The moment the idea is admitted into society that property is not as sacred as the law of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. - John Adams

  6. For the moment I would just say that Nelson, Crawford and Kershner are ill behaved and have crossed a line of interference in administrative matters. It is also clear to me that they are being lazy. They perceive a problem that could be addressed legislatively but are too lazy to do anything about it or are too cowardly because the solution they want may be too repellent.

    There are times when I disagreed with a planning staff report on a Hearing Examiner appeal. There are also times when I disagreed with the Hearing Examiner’s rulings. Never once did it ever cross my mind to write a letter to the administration regarding the Planning Department’s interpretation of a regulation or the failure to note missing information.

    This letter combined with the letter from Goldstar legal representation Mr. Swanson appears to be an effort to sully the reputation of the best planning director this county has had in two decades. I hope that Mr. Kremen sees this for what it is and stands up to this bully tactic.

  7. Carl, thanks for the straw vote against expanding the UGA for Bellingham in order for Ciatac to develop. No expansion should take place until 1) there is a real need as described by the city of Bellingham, and 2)the County has in place a working TDR program with the receiving areas in ag zoned lands and in the APO areas. We also need a stronger PDR program with funds that are confirmed and with a system in place to visit landowners that would benefit by such a program. How difficult would it be to develop a program like we have for Lake Whatcom? Would that work for protecting our ag lands? Dorie

  8. The Velvet HammerApril 14, 2010 at 9:29 PM

    "The vesting issues that the letter purports to be about are very complicated and I don't want to get into them here."

    That's because you don't understand vesting issues Carl. And neither does your "posse" (Harris, McShane, Lesow, et al.) Vesting might just as well be a foriegn word to you; you certainly have never indicated that you understand it's meaning while sitting on the council.

    Hey Carl, for the record, who writes your blog? Either Wendy Harris writes for you... or you write for her. Almost the same blog entry over on the late rupub....

  9. At this date (April 15) now lists for Whatcom County these homes for sale:

    Auction (Trustee Sale) 292 properties
    Bank-Owned 327 properties
    Bank-Owned Bank Hot 17 properties
    Bank-Owned Govt. Prop 2 properties
    Homes For Sale MLS 352 properties
    Homes For Sale Bank Hot 17 properties

    (Notice how short sales and bank-owned sales remove 'foreclosures' from the market place.)

    Maybe Whatcom County Council should let developers and banks build out liberally with the caveat that any home not sold to owner/occupants one year from permit issue date reverts to Whatcom County ownership. You can site the security (arson, squatting, drug house) dangers of unoccupied homes as a civic cost.

    Let's see how many permits are applied for then.