Tuesday, June 15, 2010

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.


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.”


  1. What those proposing TDRs is that all past zoning errors that are non compliant with the GMA be allowed TDRs. That would be OK if the number of lots qualifying was not so large that crafting a TDR program would not undermine farm land TDRs.
    I would have loved to had a viable TDR program during my time on the Council, but it can't be done when the cities control their UGAs. The County did essentially unilateraly create a receiving area for Lake Whatcom TDRs in Bellingham's UGA and the City did not object. However, development can no longer take place in the UGAs at high density until the area is anexed. So far I have seen no effort by any of the Cities to accept a TDR program. In fact I have seen the concept strenously objected to by both Bellingham and Lynden. If Council TDR proponents such as Ken Mann can pull a TDR program off at the scale they proposing, it might make a minor dent in the excess zoning around the overly large UGAs, LAMIRDs and the volume of potential rural development scattered all over the county. The fact is it is very hard to do TDRs when your UGAs are already too big and you have overly and too many clumps of urban development in the rural areas.
    I would further add that when a small area was added to the Birch Bay UGA in 2004 the County Council placed a requirement for obtaining development rights before the upzone could proceed. That requirement was removed earlier this year with all but Carl Weimer argeeing with the TDR requirement imposed unreasonable obstacles to development of the properties.
    If the Council super super majority and the Executive all believed TDRs to be an undue obstactle for development in February, 2010 what has caused the sudden change of mind.
    If history can be of any help, former Council member Sharron Roy took a similar position to that of Ken Mann's in that she considered down zones as a last resort. Thankfully she was not an idealogue and voted to reduced development potential at Lake Whatcom, Lake Samish, Point Roberts, Birch Point, Point Whitehorn, and Custer. She did what was right and pulled back sprawl plans for thousands of lots. I hope that the Council idealogues can work through this issues and reach a similar conclusion - not just for Lake Whatcom but for all the sprawl areas (LAMIRDs) as well.

  2. From your mouth to Council's ears.

    Unfortunately, I doubt this will be a compelling argument to them. Facts, common sense and long-term consequences do not seem to be on their radar.

    Unless it benefits their development cronies, they are not interested. I will continue to show up and support you - if for no other reason then to make them squirm in anticipation of having to listen to yet another three minutes of complaints about their actions.

    Keep the faith - Sooner or later the majority of this County will finally realize what they are doing and put a stop to it. I sincerely hope it will be before it is too late.

  3. From Marian Beddill

    After being an early supporter of TDR's, I now have serious concerns and doubts. I fear that even the best variant of a TDR program, has faults which could (will?) lead it to crash.
    If I am wrong on the following statements of fact, please correct me:
    Fact: A TDR program requires a willing seller of the rights.
    Fact: A TDR program requires a willing seller who will retain the title to the land, which then will have little real utility.
    Fact: A TDR program requires a willing buyer of the rights.
    Fact: A TDR program requires a willing buyer of the rights, who will choose that purchase over all alternatives for development.
    Fact: A TDR transaction requires a property defined by the responsible agency (City, County, etc) as having restricted development rights, but judged by some process (not clearly defined) as suitable for less-restricted development rights.

    And that last one opens a can of worms, or maybe a barrel of them:
    That double-barrelled two-step definition of variable rights on receiving properties comes at some likely great cost (financial &/or political) to the zoning-authority jurisdiction.

    It will require an entire new set of rules in urban planning, to scope out those high-or-higher properties - a process itself fraught with enormous battles over fairness and justice being done.

    And it will require that the owners of such properties consent or desire to have their properties included in such a program, a condition fraught with uncertainty throughout the process, frozen until finally done.

    And it can be (will be?) a target for neighboring urban non-TDR properties - who did not get their properties upzoned -- and why not? (With a passel of likely muddy answers to that question.) What Executive will want to craft that muddy field for himself?

    Thus, I am not a strong proponent of TDR's.

    It's cousin, a PDR program, is OK and is already ongoing, as kinfolk to the Purchase-of-Property program which our TIG Initiative brought to the public, and John Watts finally hammered the council to implement some ten years ago. PDR only takes government money and a willing seller.

  4. Carl, Dan,

    Would someone please clarify who has jurisdiction over UGAs. It has always been my understanding that the UGA is an area designated as land that can be potentially added to a city but remains under the control of the county. Dan, in his post, said "but it can't be done when the cities control their UGAs"


  5. Thanks for holding firm, Carl. The more I learn about TDR's, the more I fear they are not a workable solution at this point for Whatcom County. And they certainly are not a silver bullet.

    I fear this Council configuration will do us serious harm and place the bill firmly on future Whatcom County taxpayers.

  6. We need to also remember where TDRs originated - in New York City, for the protection of viewsheds and historical sites. The attempt to use TDRs for land protection in a cross-jusidictional setting and at the landscape scale is a relatively recent phenomenon. Even Montgomery County, MD, the bright light in Ag TDR is having to go back and pick up residual rights on TDR protected land. The central problem here is that we're trying to moosh two disparate transactions together - how do we reconcile the differing values of development rights in two very different places (urban and rural), for a start?

    We also need to keep in mind that TDR and PDR are not the same thing, nor are they particularly closely related - 3rd cousins once removed, at best. PDR is expensive, but it is the only proven method for efficiently and permanently protecting ag land. TDR is held up as being a less expensive method to get to the same ends, but by and large the taxpayers end up paying the same, if not more than they would have under PDR - that is, if they expect an equivalent quantity of land to be protected.

  7. Joan:

    I will attempt to explain the UGA control issue as I understand it. Any errors are mine alone as I am working purely from memory; anyone please feel free to correct or clarify as you see fit.

    Cities control the Urban Growth Areas (UGAs) by water and sewer service. This has not always been the case and certain UGAs built out before annexations in the past. (In some cases the UGAs were built out before the Growth Management Act (GMA).) Currently UGA areas are required by County Code to remain at rural levels of development at one home per 5 or 10 acres. In that regard the UGAs are under county control but only at rural development levels. Further development is controled by the City. It is not until the area is annexed that denser zoning can be applied. Without annexation water and sewer service can not be extended. The City of Bellingham adopted that position several years ago and it is a very effective means of UGA control combined with the County requirement that density be left rural until annexation.

    The whole exercise of the County and Cities arguing about zoning density in the UGAs is sort of silly now because once an area is annexed the County has no say – unless there is a well developed interlocal agreement.

    Hence, the County cannot by itself require Transfer of Development Rights (TDRs) in the UGAs. The cities must agree as well and include the TDRs as a requirement as part of annexation or up zoning after annexation or extension of water and/or sewer service.

    It is easy to see why a given city would object to such a scheme as it forces development in areas designated for compact urban development to pay for past zoning errors made by the County government.

    In the case of Lake Whatcom, the County government years ago allowed for thousands of potential lots in the drinking watershed. It was a mistake that County Councils since have had to struggle with. It was also a mistake that years ago our city leaders failed to get control of the watershed. That mistake has led to tremendous challenges to city leaders.

    There are three exceptions to UGA control in Whatcom County as there are three stand alone UGAs in the County that are not associated with any city. In the case of Birch Bay the County did require TDRs for an area added to the UGA. The current Council voted 6-1 to rescind that requirement as it was “an obstacle to development of the property”. Carl was the lone no vote. That vote taken just a couple of months ago suggests that the current Council majority is not committed to TDRs and sees them as interfering with development of the UGAs.

    Regardless of the approach taken, allowing more lots of less than 5 acres to be created in the watershed will be placing additional costs on future tax payers and water rate payers.

  8. Carl,

    What is preventing you from engaging the Dept of Ecology and US EPA now, rather than watching this slow-motion train wreck?

    Based on past experience, the farther the train is from the station, the harder it is to stop. Why don’t we contact DOE and EPA now and have them stop the train before it’s too late?

    BTW, in an email from Ken Mann, his strategy does call for a downzone once sending and receiving areas are established, but before receiving areas are upzoned AND before downzoned landowners are compensated.

  9. Anon - didn't Ken Mann vote NO on a proposed TDR (Birch Bay) the only opportunity he had to vote on the issue?