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.

Whatcom County Permit Extension Ordinance Invalidated

On August 2, 2011 the Western Washington Growth Management Hearings Board (the “Board”) invalidated Whatcom County Ordinance No. 2010-067, which provided a one-time economic hardship extension of land use permit expirations.  The Ordinance allowed property owners to extend the vested status of land use permits, which were set to expire between December 2010 and March 2012,  for an additional two years.

For example, someone with a vested conditional use permit, which was to expire on January 1 2011, could apply to extend the conditional use permit such that it would not expire until January 1, 2013.  In order to obtain the extension, the applicant was required to attest that the extension was necessary due to adverse market conditions and/or an inability to secure financing.  The Ordinance itself expired in June of 2011, meaning that no hardship extensions were granted after June of 2011.

Despite the expiration of the Ordinance, the Board ruled the Ordinance to be invalid.  The Board found that Whatcom County did not comply with the State’s Environmental Policy Act (“SEPA”) and Growth Management Act (“GMA”).  The Board’s order can be found here.  The Board further remanded the Ordinance for compliance with SEPA and the GMA, meaning that Whatcom County must somehow bring its expired ordinance into compliance with these state statutes.

It is unclear what this decision means for property owners who obtained hard ship extensions under the Ordinance.  Pursuant to the GMA, rulings of invalidity are prospective in nature and generally do not apply to vested project.  Some may argue, however, that because the extensions granted under the Ordinance are ongoing, the Board’s order may affect these extensions.

Thus, the Board’s order may lead to uncertainty in regard to the status of permits that were extended under the Ordinance.  Also unclear is the process the County will use to bring the Ordinance into compliance with the Board’s order.  The County will likely be addressing these issues later this fall.  I will provide more information on this topic as it becomes available.

Whatcom County Adopts Rural Element

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.

Growth Management Board Rescinds Invalidity Ruling

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.

Whatcom County Imposes Moratorium on Subdivisions in its Rural Areas

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.

Growth Board Issues Order of Invalidity Regarding Whatcom County’s Rural Element

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 Rural Element Update

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.

Incentive Zoning Program Considered by City of Bellingham

As discussed in a prior post, the City of Bellingham has been working on an Incentive Zoning Program for affordable housing development.  At its May 10, 2010 meeting, the City Council identified options for an incentive program; and on June 21, 2010 the Council directed Staff to develop an ordinance that would require certain residential developments to include a percentage of affordable units.

One of the proposals currently being considered by the Council is that any development consisting of ten or more residential units, which is located  in an area that has been upzoned or rezoned to residential use, provide for twenty percent of its units to be “affordable.”

Persons whose income level does not exceed 80% of the county median income would be qualified to own or rent these affordable units.  In lieu-fees would be allowed under to be specified circumstances and density bonuses awarded for provision of the affordable units.

It is unclear whether the proposal being considered by the Council will be a mandatory program. “Incentive Zoning Programs”  tend to be voluntary whereby a developer voluntarily provides affordable units in return for a density bonus or other incentive.  The issue of a mandatory vs. voluntary program will likely be at the crux of the discussion when a draft ordinance is released.

Among the other issues that should be considered in enacting an incentive ordinance are:

How much affordable housing already exists in Bellingham?

Where is existing affordable housing concentrated?

What is the true need for additional affordable housing units in the current economic climate?

Where are additional affordable housing units needed in terms of locale?

Who should bear the cost of providing additional affordable housing?

Are density bonuses adequate incentives or compensation for providing below market units?

I will continue to provide updates on the City’s Incentive Zoning Program as the issues winds its way through the City’s legislative process.

County Council Continues Work on Rural Element

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.

Bellingham Extends Land Use Permits

Recognizing the current economic hardships faced by developers and property owners, the State of Washington and its local jurisdictions  have taken steps to extend land use approvals while developers wait for financing in this credit-tight economy.

On March 17, Washington State Governor Christine Gregoire signed into a law a bill extending preliminary plat approvals from 5 to 7 years.   Cities and counties, including King County, Snohomish County, Pierce County, Everett, Seattle, Marysville, Redmond, and other municipalities have enacted land use permit extension ordinances. These ordinances ensure that the money and effort invested in land use applications is not lost due to the current economic climate.

On Monday evening, the Bellingham City Council approved an ordinance granting a one-time economic hardship extension of vested status to most land use approvals.  To obtain the extension, an applicant must file a written extension request, including a sworn declaration that the work authorized by the land use approval will be delayed as a result of adverse market conditions or inability to secure financing.  An application fee of approximately $107 must also be submitted.

On May 25, the Whatcom County Council is scheduled to hold a hearing on a new draft  land use hardship extension ordinance.  The new ordinance will be introduced at the Council’s May 11 meeting, and should be available for review on the County’s website approximately 5 days prior to the meeting.  Hopefully, Whatcom County’s new ordinance will also give due consideration to the hardships faced by landowners and developers  in this difficult economy.

***An update to this post, on May 10, the Bellingham City Council amended its hardship extension ordinance to require that applicants attest that the work authorized by their land use approval will be delayed due to an inability to secure financing (the “adverse market conditions” provision was removed).  The final ordinance can be found here.