June 15, 2010 - Issue of the Week

Does the Whatcom County Council Care About Lake Whatcom? Soon we'll know.

At last week's Council meeting the Council voted 6-1 to reject a downzone in the Lake Whatcom watershed that would have helped prevent somewhere between 100-200 potential new homes. After years of this being in place as a temporary moratorium I was the only vote in favor of removing this potential development from the watershed through this downzone.

As anyone who has been paying the least bit of attention would know the quality of the Lake has been declining for years, and all the science and all the studies show the decline is caused by development around the lake. The County already has legal obligations to control pollution into the lake under our stormwater permit, and we will soon also be under legal obligation to clean up the lake from both the Department of Ecology and the U.S. EPA under the pending TMDL. The key to meeting our cleanup requirements will be to institute programs that make the lake think that 80-90 percent of all the development has been removed and natural conditions exist. This is a huge undertaking, and adding more development to the watershed is just plain ignorant from both the standpoint of what is good for the lake, and also what is good for the taxpayers who will have to pick up the cleanup tab.

The vote to not make years of a temporary moratorium permanent certainly is the first indication that the new Council may care little about the state of Lake Whatcom. In July, the Council will have to decide how much funding to request for the Lake in the coming two years. That will be another interesting indication, especially with Chairman Crawford wanting to reduce spending by nearly a million dollars a year in the fund that pays for lake protection. Then toward the end of the summer the still in place moratorium on subdivisions in the watershed will come up for another vote to renew it or let it lapse and allow those homes to be built. That will be the final indication of where this Council really stands.

I am sure the Department of Ecology and the U.S. EPA are watching all this with some fascination, wondering when they need to step in and remind the County of its obligations.

Of course there is some serious smoke and mirrors in play. Like last week, as an excuse to vote against the permanent moratorium, some members stated they just wanted time to work on a Transfer of Development Rights (TDR) program. While this may sound like a legitimate idea, and I will certainly vote to extend the temporary moratorium to give them the chance to get such a TDR program in place, anyone who has actually studied TDR programs doubts this can be accomplished. It is even more unlikely that these Council members can create such a program without the help of our rapidly dwindling Planning Department staff. Even if they do manage to draft a good ordinance it would be hard to succeed without staff to come up with interlocal agreements, and ongoing promotion and care.

Anyone who has studied TDR programs would realize that we have way too may desired sending areas (Lake Whatcom watershed, prime farmland, Drayton Harbor, etc) and way too few (none) receiving areas. Without receiving areas TDRs will never work, and there is no reason for the cities or developers to help create receiving areas as long as the County Council continues to provide them with more and more high density areas for free. For years I have said that if we are serious about these types of programs (TDRs and PDRs) then we need to make sure we tie the development of receiving areas to upzones. Most every study I have seen agrees that upzones need to be tied to these programs if there is much hope of substantial success. Unfortunately the Council seems unwilling to do this, and continually gives away all our potential leverage. If Council members are really interested in creating a viable TDR program then I hope they will delay the vote on the expansion of the UGAs around Ferndale, Birch Bay, Nooksack and Sumas until we can add language to use these areas as receiving areas, and develop the needed interlocal agreements. If they are unwilling to do that then all this talk about creating TDRs is nonsense.

The County produced its own feasibilty study on the potential of TDR programs in early 2009. It can be found on the County's Agricultural Program website at: http://www.co.whatcom.wa.us/pds/planning/agricultural_program.jsp That study also concludes that TDR programs will be problematic here without some tie to UGA expansion and dealing with the tens of thousands of development rights previous councils have approved in the rural areas. Again, the Council has been unwilling to deal with either of these issues, both of which undermine viable TDR programs.

Below is a link to the Department of Commerce's TDR clearinghouse page, which contains all sorts of information. Below the link are some snippets of information I pulled from the referenced report regarding TDR programs that might help you understand this better than I have explained it above.

http://www.commerce.wa.gov/site/1308/default.aspx


From the report - Transfer of Development Rights (TDR) in Washington State: Overview, Benefits, and Challenges


“While many TDR programs have been enacted, not all have not been successful. In fact, only a handful of programs have protected 5,000 or more acres of land, and some have not generated a single transaction.”


“Inadequate receiving areas. Without adequate receiving areas, there is no market for TDRs and a TDR program cannot succeed. A few second-generation TDR programs require the purchase of TDR credits as a condition of any upzones. ... This type of mechanism can help address the need for receiving site designations and take advantage of demand for upzones.”


“In areas where zoning already allows development beyond what the market can support, there is no value to a developer in participating in TDR. Similarly, if rezones to higher densities can be achieved without participation in TDR, interest in TDR will be undercut.”


“Lack of program leadership and transaction support. A review of TDR history shows clearly that adopting legislation to enact a TDR program is not enough, by itself, to ensure program success. Active support and leadership are needed to foster a robust marketplace for TDR transactions. Especially at the outset of a program, support is needed to overcome the natural uncertainty that property owners may feel in considering a new and unfamiliar form of real-estate transaction, and the unease that developers may feel about a new step or option in the development permitting process. Public education, program advocacy, and transaction support appear to be key ingredients in successful programs, especially when the program is young.”


“Ensure Zoning Compatibility Some jurisdictions have initiated TDR programs with a large-scale downzoning of resource-based lands to be preserved, using TDR as a means of compensating landowners for the development restrictions and creating a strong incentive for participating. (For example, Montgomery County [MD] downzoned its agricultural lands from 1 unit per 5 acres to 1 per 25, allowing TDR sales based on the original zoning density.) While widespread downzoning may not be feasible in many areas, zoning must be consistent with the long-term conservation goals of a local plan. Landowners wishing to continue farming or forestry activities may resist the idea of a permanent development restriction (conservation easement) on their property. For example, where zoning in an agricultural area allows 1 unit per 5 acres, property owners may well expect incompatible development on neighboring properties, which would undermine the long-term viability of farming in the area and thus make a conservation easement unattractive. Furthermore, the smaller the lot sizes allowed, the greater the number of development rights that must be assigned - perhaps exceeding the capacity of receiving areas to accept these credits.”


“On the receiving side, zoning and TDR participation are also closely linked. As noted in the section above, zoning that matches or exceeds market demand for development negates the profit a developer might achieve through TDR. Reducing the base zoning in TDR receiving areas is an option to reinforce the profit incentive. However, downzoning may not always be feasible and may even conflict with city planning objectives that favor concentrated growth. An alternative approach is to incorporate TDR provisions into any rezone approved by a jurisdiction, whether through a comprehensive plan update or through individual requests for zoning reclassification (see Pierce County and Malibu examples above). Under this approach, a portion of the increased value created by the increase in development potential can be allocated to support regional conservation goals. If, on the other hand, developers are successful in achieving such upzones without participation in TDR, there will be little demand to fuel the TDR marketplace.”