Archive for the ‘Rural Zoning’ Category
Washington Supreme Court Invalidates Department of Ecology Amended Rule Reserving Water from Skagit River
In a very recent decision, the Washington Supreme Court ruled that the Department of Ecology does not have the authority to reallocate water for new beneficial uses when the requirements for appropriating water for these new uses cannot otherwise be met. The Court’s opinion in Swinomish Indian Tribal Community v. Washington State Department of Ecology can be found here.
The case stems from a 2001 Instream Flow Rule, which established minimum instream flow requirements for the Skagit River Basin. The 2001 rule prohibits water for new uses when stream flows fall below the minimums established by the rule. Skagit County and others opposing the rule maintain that the rule effectively precludes new development that requires a year round water supply (i.e. homes, businesses, agriculture, etc.)
Litigation followed publication of this 2001 rule, resulting in a settlement agreement between Skagit County and the Department of Ecology as well as an amended instream flow rule for the Skagit River Basin (“the Amended Rule”). The Amended Rule establishes reservations for domestic, municipal, commercial/industrial, and agricultural uses, such that water for these new uses would not be shut off during periods when the flows set forth in the 2001 Instream Flow Rule are not met.
Ecology’s justification of the Amended Rule was based upon its belief that the impacts of the Amended Rule to aquatic and recreational uses would be minor; and that the economic benefits of reserving water for new uses would outweigh potential harm. The Supreme Court, however, ruled that Ecology was not justified in reallocating water that is already subject to a minimum flow requirement based upon a cost benefit analysis. The Court’s invalidation of the Amended Rule, leaves the 2001 rule intact and development of new uses in Skagit County, which require an uninterrupted year round water supply, uncertain.
Whatcom County is also facing a court ruling regarding its management of water resources. The County has appealed a June 7, 2013 ruling of the Western Washington Growth Management Hearings Board, which held that the County is not sufficiently protecting it surface water and groundwater resources. At issue in this case, is whether Whatcom County must further restrict development and/or water withdrawals in its rural areas to better protect water resources.
The Whatcom County case is currently pending in Skagit County Superior Court and the parties have petitioned for direct appeal by the Washington State Court of Appeals. I will post updates on this case as the matter progresses.
On May 10, 2011 the Whatcom County Council adopted its Rural Element Ordinance. The Ordinance, which goes into effect on May 22, 2011, establishes residential, business, and mixed use LAMIRDs in certain areas of rural Whatcom County. Most rural areas outside of LAMIRDs have been downzoned to only allow for the development of one house per five acres. My prior posts have discussed the specific LAMIRD areas as well as the new zoning to be implemented therein.
The Western Washington Growth Management Hearings Board will be holding a hearing on July 6, 2011 to determine whether the newly adopted Ordinance is compliant with the Growth Management Act. The Board’s Order, which includes the compliance hearing schedule can be found here. Undoubtedly, there will be compliance challenges and likely future appeals of the Rural Element ordinance.
For now, however, it appears that the Whatcom County Planning Department will be applying the LAMIRD designations and zoning regulations as set forth in the new Rural Element Ordinance. Consequently, property owners within the affected areas should review the new Rural Element amendments to determine the impact of these regulations on their property.
Yesterday, the Western Washington Growth Management Hearings Board rescinded its Order of Invalidity in regard to the County’s rural areas. The order can be found here.
This is very good news for Whatcom County. Among other things, any petitioner challenging amendments to the County’s Comprehensive Plan will bear the burden of demonstrating the amendment does not comply with the Growth Management Act. This holds true for any challenges that may occur after the County adopts its new Rural Element chapter.
The County Council is currently working on amendments to the Rural Element chapter of its County Comprehensive Plan. The next Rural Element worksession will be held on Tuesday, February 17. The worksession agenda can be found here.
Last night, the Whatcom County Council, enacted an emergency moratorium on the acceptance of subdivision applications in the County’s rural areas. A link to the unsigned ordinance imposing the moratorium can be found here.
The moratorium affects all of the rural areas being considered for LAMIRD designation pursuant to the County’s Rural Element Update. Maps of the affected areas are included in the ordinance.
The moratorium was enacted in response to the Order of Invalidity issued by the Western Washington Growth Management Hearings Board. See my prior post regarding the Order of Invalidity.
The Council must hold a public hearing on the moratorium within 60 days.
On December 22nd, the Western Washington Growth Management Hearings Board issued an Order Granting Extension of Whatcom County’s Compliance Deadline regarding revisions to the County’s Rural Element as well as an Order of Invalidity.
As my prior posts have discussed, the County has been working on revisions to policies and regulations governing development in its rural areas as well as creating limited areas of more intensive rural development (LAMIRDs) where appropriate. The County’s Rural Element website can be found here.
Pursuant to the Board’s Order, the County now has until March 29, 2011 to finish its work on the Rural Element Update. It is uncertain what the Order of Invalidity means for development within any of the areas that are being considered for redesignation under the County’s Rural Element. With regard to any project and/or project application that does not have vested status, the ability to rely on any existing comprehensive plan and/or zoning designation may be in doubt.
The County Council will likely next discuss this issue at its January 12, 2011 meeting.
Whatcom County has just posted a revised Rural Element Update proposal. My prior posts regarding LAMIRDs have discussed the past iterations of this proposal. The latest version includes hundreds of pages of changes to the County’s zoning map and zoning ordinance as well as changes to the County’s Comprehensive Plan.
Most of the attention to date has been on determining where LAMIRD boundaries should be drawn to allow for more intensive development to continue in certain rural areas and whether densities of more than five units per acre should be allowed in residential areas that have historically been zoned at higher densities. Zoning boundaries and designations are very important, but equally important are the comprehensive plan policies that guide planning (i.e. encouraging infill and job growth in areas already characterized by urban growth) as well as specific development regulations contained in the zoning code (i.e. limitations on building size, buffers, lot coverage, landscaping, etc.).
In reviewing the latest proposed changes, I urge examination of the specific development regulations and planning policies included in the revised proposal, as the devil is in the details. One example, which is found in the amendments to the Comprehensive Plan, is a revised Policy 2GG-4, which discourages rezones from R10 to R5 as well as rezones from R5 to R2A and states that these rezones are not consistent with maintaining traditional rural character. If adopted this policy, will make it very difficult if not impossible to rezone property to densities higher than one unit per ten acres outside of urban growth areas.
Other examples abound in proposed changes and additions to the County’s zoning code that will determine what can actually be built in rural Whatcom County. The County Council will need to decide what actually constitutes “traditional rural character” in Whatcom County in deciding whether to adopt or further revise the latest proposal. The County Council will be holding a worksession on this issue on Tuesday, September 14th.
The Whatcom County Planning Commission’s recommendations regarding LAMIRDs and the Rural Element are currently under consideration by the Whatcom County Council. A link to the power point presentations provided by Staff to the Council can be found here.
With regard to the rural residential areas (i.e. Chuckanut, Fort Bellingham, Hinotes Cortner, Sandy Point, Lake Samish, etc.), the Council is considering a density overlay whereby property owners would be able to create or build on parcels less than five acres if 70% of the parcels within 500 feet are already developed at a density higher than one house per five acres. For example, although the Fort Bellingham area would be rezoned to either RR5A or R5A (one house per five acres), property owners could still create parcels one or two acres in size as long as the surrounding area already contains similarly sized parcels.
The Council is also considering whether to accept the Planning Commission’s recommendations designating certain LAMIRDs along the Guide Meridian and downzoning areas outside of the proposed LAMIRD boundaries. At issue is whether these commercial areas along the Guide Meridian can simply be designated for general commercial use or whether a tight boundary needs to be drawn around these areas and uses within these areas limited in size.
As discussed in my earlier posts on this subject, a number of businesses currently operate along the Guide Meridian in Whatcom County. Given that a major arterial runs through this area it is difficult to see this part of Whatcom County as ever reverting to a more pastoral rural or agricultural area. The current Council appears to recognize the reality of the existing character of this area and work continues on how to articulate an appropriate zoning designation.
The Council will be holding another work session on these issues on June 22.
Yesterday, the Washington State Supreme Court issued its decision in the Goldstar Resorts v. Futurewise matter. This case involves challenges to Whatcom County’s rural zoning designations. Central to this case is whether the County appropriately designated Limited Areas of More Intensive Development (“LAMIRDs”). See my earlier blog posts for more information on LAMIRDs.
On this issue, the Supreme Court ruled held that the County did not properly designate LAMIRDs when the County revised its comprehensive plan in 2005. Essentially, the Supreme Court affirmed the original ruling by the Western Washington Growth Management Hearings Board (“Hearings Board”) with regard to this issue. Consequently, the County has been charged with creating logical boundaries around rural areas containing preexisting development.
Importantly, however, the Supreme Court has remanded this case to the Hearings Board to reconsider its ruling on the validity of some of the County’s rural zoning designations. The Hearings Board had originally held that, outside of LAMIRDs, areas zoned for densities at greater than 5 units per acre (i.e. R1A, R2A, RR2, RR1, etc.) were not rural in nature and thus not compliant with the State’s Growth Management Act (“GMA”).
In remanding this issue to the Board, the Supreme Court held that there is no “bright line” rule as to what densities are appropriate in rural areas. The Hearings Board will thus be required to consider the overall character of an area rather than using a strict density rule to determine what is rural under the GMA.
As further discussed in my prior postings on this issue, the County has been working on designating LAMIRDs in compliance with statutory requirements; and work on the County’s rural element will continue into next year. The Supreme Court’s ruling should not necessarily cause the County to change course on this work except to the extent that the County need not be bound by any “bright line” rule as to what amount of density per acre should be allowed in the rural areas.
For more information on the County’s LAMIRD designation process, see the County’s Rural Element website.
Next Tuesday, the Whatcom County Council will be holding a public hearing regarding proposed changes to its urban growth areas (UGAs). The current proposal eliminates much of the existing Ferndale and Blaine UGAs and also removes portions of the Bellingham and Lynden UGAs.
Advocates for reducing the size of UGAs throughout Whatcom County do so on the basis of limiting and/or halting “sprawl.” Although the term “sprawl” often gets bandied about in land use discussions, the term is rarely used correctly.
Sprawl is often used as a catch-all term to encompass any type of development outside of an established neighborhood. Washington’s Growth Management Act, however, refers to “sprawl” as the inappropriate conversion of undeveloped land into sprawling, low-density development. Thus, sprawl is not development in or expansion of an urban growth area per se.
Cities, especially Bellingham, have had a difficult time promoting the infilling and densification of existing neighborhoods. As a consequence, denser development has occurred at the edges of cities and outside of city limits and within adjacent urban growth areas.
Development at the edge of a city or within its urban growth area is not “sprawl” if the development is urban in nature. Residential development at more than 4 units per acre and/or commercial or mixed use development adequately served by utilities and transportation facilities are examples of urban types of development.
In preventing “sprawl” counties must consider what in fact causes low density development in rural areas and whether reducing UGAs encourages or discourages further development in rural areas. In other words, those concerned about sprawl should consider the ramifications of shrinking urban growth areas to such an extent that lack of land availability leads to low density development in rural areas – “sprawl.”
This week, both the Whatcom County Council and Planning Commission will be considering proposed changes to the County’s Urban Growth Areas. As discussed in my prior post on this issue, a joint hearing was held by the Council and Planning Commission with regard to the County Executive’s UGA Proposal.
The small cities (i.e. Lynden, Blaine, Ferndale, etc.) are unhappy with the County Executive’s Proposal. The Executive’s Proposal calls for significantly decreasing the size of Blaine and Ferndale’s UGAs and also runs counter to Lynden’s desire to increase the size of its UGA.
Bellingham’s City Council initially requested that its UGA be neither increased or decreased in size. The Executive, however, proposes to reduce Bellingham’s UGA by removing the Geneva and Hillsdale areas. The Executive also proposes to remove the Yew Street area from Bellingham’s UGA and place it in “reserve.” Bellingham has decided not to oppose this Proposal. The City’s letter to the Executive can be found here.
Taking areas out of a UGA and placing them in reserve status is legally questionable. The purpose of creating UGAs is to provide for predictabilty and certainty with regard to accommodation of future population growth. Designating areas as “reserve”, in contrast, does not create any certainty or predictability as to whether these areas will be developed at urban levels of growth during the 20 year planning period.
To further complicate matters both the City and the Bellingham School District have made significant infrastructure investments in the Yew Street Area in reliance on the current zoning and UGA designation of the area. Additionally, as I discussed in my last post, it is less from certain that removing lands from city jurisdiction will accomplish the desired goals of protecting either the Lake Whatcom or Lake Padden watersheds.
In decreasing the size of UGAs throughout the County, it is unclear whether the Executive’s Proposal will direct growth to Bellingham or the small cities, or whether people will continue to seek housing in unincorporated Whatcom County. This is an important policy issue that the Council and Commission will be considering over the next few weeks. More information can be found on the County’s website.