The Growth Conspiracy

The writer settled in Whatcom County in 1969. He is an entrepreneur, student of the law and worldly philosopher who loves this place.

To borrow from Balzac, often, if we understood the cause of apparent good fortune, we’d see it’s really a cause for shame. Whether it be bending, breaking or misusing the law, it usually entails taking a great deal from a few, or a little from very many — probably taking it from a public who do not realize, until too late, what was lost.

On January 18, 2008, in Whatcom County Superior Court, Judge Ira Uhrig, looked out upon his courtroom. He had given the next matter before him great thought. He had read and reread the briefs and reviewed the exhibits. He was prepared to hear oral arguments now.

The attorneys for our county government, and the legal representatives of the Lake Whatcom Water & Sewer District, came to the court this day to ask the judge to dismiss the appeal by the Squalicum Valley Community Association.

The association opposed the county’s approval of a project that was part of a plan to pipe water to developers on Squalicum Mountain — a development that would pollute Lake Whatcom and destroy the forest in the watershed that feeds the lake and Whatcom Creek.

These citizens were joined by the city of Bellingham. Together they opposed the grant by the county to the water district of permission to extend an urban level of water service that would inevitably extend into resource lands designated rural forest on the mountain, clearly outside any area designated for urban growth. Without adequate restrictions on the water line’s future use, they were reasonably concerned it would inevitably lead to ever more development.

The appellants sought to have the original hearing reopened so they could introduce evidence that impeached the representations of the county and the water district: a resolution by the water district to serve Vineyard Development, the agreement with the developer, and a study laying out the steps to accomplish the same.

At issue, the county’s assertion that these are not urban, but rural services and such levels of service are consistent with the Growth Management Act (GMA) and Whatcom County’s Comprehensive Plan. The county and the water district wished to suppress the evidence that demonstrates the part this project plays in their greater plans to extend water for more development.

Immediately critical to getting the evidence into the record was the court ruling that the county’s notice of the matter to the public and the city was inadequate. This was the goal of the appeal that the county and water district were asking be dismissed.

The appeal came from an earlier decision of the county’s hearing examiner. The county had hoped to get this water line in without having to address its inconsistencies with the Comprehensive Plan and the Growth Management Act. Years ago they had created some cover to ignore the law intended to manage growth.

The water district went to lengths to conceal they were doing anything more than charitably helping some disadvantaged souls in need of better water. They claimed that this project had nothing to do with bigger plans.

The county had chosen not to notify the city, which has millions invested to protect its water supply by preventing development in the watershed or to notify the residents who had written earlier and asked to be consulted, who sought to preserve the rural character of their community and protect the forests that filtered the waters that recharged their wells.

Nonetheless, ill prepared and unrepresented, a few good folks showed up at the hearing and asked the hearing examiner for a continuance (as was their right) so their legal representatives could properly register their concerns. They were ignored. The plan was rubberstamped. The record quickly closed. And the citizens were left with no alternative but to appeal to the County Council.

When the city attempted to join that appeal and have the hearing reopened because they were among those who had not been notified, the county attorneys withheld the fact from the County Council and would not allow them to consider other pertinent water district documents successfully kept out of the hearing examiner record.

Our county attorneys did not want the County Council to be aware of the real game afoot, and suppressed the documents that showed this was merely the first step in a larger scheme. The county attorneys didn’t give the council objective legal advice. The county administration undertook to circumvent the law, and game the process on technicalities.

And when the matter was appealed to Superior Court, rather than have a fair hearing of the issues, the county and the water district moved the appeal be dismissed on another technicality: that the appellants really had no standing to oppose the almighty county government.

So near the end of the motion calendar, late that Friday afternoon, the Squalicum Valley residents sat in Judge Uhrig’s courtroom holding on to the hope that he would allow them to continue their appeal, to fight another day, to be heard, and in the future, perhaps, to get the public hearing on the water extension reopened to allow a real hearing.

The attorneys for the county and the water district made their arguments that these people need not be heard, and why the city’s interests should be ignored. The city’s attorney and the lawyer for the Squalicum Valley residents presented evidence of the county’s failure to properly notify the city. They explained the purpose of restricting these services in order to manage growth. They presented the evidence of the real plans to use this water for further development.

The court was silent. The hour was getting late. The judge turned through the papers. He looked again at the water district’s answer to a question on one of the exhibits. Is this part of any other project? No.

The attorneys were left standing at the bar. The judge said nothing. He didn’t take the matter under advisement and adjourn his court. After maybe five long minutes, he looked up, and to everyone’s surprise, began to rule from the bench.

He acknowledged the importance of the matter before him, and that he had thoroughly read and considered the arguments and the evidence. He agreed, indeed, the city and the people had standing. They had a right to be there and be heard. His court would not allow the water district and the county to proceed without addressing their issues. Then, unexpectedly, he went on.

Without a motion before him from the city or the people, feeling no more consideration of the matter was needed, he ended the county’s game and ordered the hearing examiner proceeding reopened — proper notice would be provided to all interested parties, and the evidence that the county and water district wished to conceal would come in.

He was unimpressed with the county and water district’s disingenuous claim, before and at the original hearing, and in their briefing to his court, that this permit they sought to quickly and quietly approve was not part of a bigger expansion, and their future plans need not be considered in approving this extension of water. It appeared there was a bigger plan.

In the fall of 1990 Pete Kremen, one of Whatcom County’s representatives in Olympia at the time, acquired around eight acres on Squalicum Mountain. It appeared a curious acquisition by the politician. But he was in pretty good company. Other speculators thereabouts read like a Who’s Who of the landed gentry. What did they know?

Well, one thing, they all anticipated that the city of Bellingham would soon extend urban services, most importantly water, to the area.

Down in Olympia a law mandating new protections for our lands and natural resources and increased growth management was imminent. It would require that counties more diligently manage future growth. If you understood where this was all headed, it was a good time to get your bet down.

The first step, to be accomplished by September of 1991, was to designate lands that resource-based industries would rely on, and protect those lands from incompatible uses; to identify critical areas necessary to preserve natural habitat and safeguard our water resources and the lands needed to recharge and discharge them.

Next, the Legislature went out of its way, before enumerating any other goals, to underscore the importance of protecting rural areas. They understood that rural lands enhanced the economy of the state and sought to preserve traditional rural businesses. They recognized that such activities in rural counties did not require urban services.

The Legislature attempted to be very clear on how they defined rural services, and sought to prohibit, or at least minimize, the expansion of urban services in rural areas. This was intended to have great weight when considering the expansion of water and sewer services that drive sprawling low-density development that erodes rural character..

They established two conditions to determine if water service may be considered rural: that historically and typically it was delivered at an intensity usually found in rural areas and was normally not associated with urban areas. This second condition established a high bar for services being classified rural. If not rural, then urban.

But notwithstanding this strict definition of urban services, and their general prohibition outside of areas designated for urban growth, the Legislature nonetheless would allow them, even in rural areas, where health, safety and environmental emergencies necessitated, but only with the provision that their extension or expansion would not lead to development inconsistent with rural character.

After accomplishing the two primary objectives of GMA, protecting resource lands and rural character, counties had three more years, until July 1994, to draft comprehensive plans embracing the many other goals of the act, and identifying those areas where future growth would be directed.

Proponents of development often assert that such things as protection of property rights, promoting recreation, and development of “affordable housing” are goals of the act equally important to the preservation of resource lands and rural character because there is no priority established amongst the act’s goals. These beneficiaries of growth choose to ignore the Legislature’s phasing of its mandates, first and foremost protection of resource lands.

The Legislature also recognized that outside existing cities and towns there were already limited areas of more intense rural development (a LAMIRD). The act intended to strictly circumscribe those places on the basis of existing structures at the time of passage. It was allowed that more intense rural development could continue within those logical boundaries.

And the Legislature, in addressing the need to protect the environment, observed the importance of ensuring the availability of water, not just for residential development, but for significant existing needs. This was consistent with efforts over the three preceding decades to prevent the over-allocation of water from damaging the habitat in our lakes, streams and rivers.

Unfortunately, ensuring water would be available for existing and environmental purposes was in direct conflict with an industry that relied on taking that water, one way or another, to continue converting rural lands into sprawling low-density development.

Meanwhile, up on Squalicum Mountain, the speculators who had these forest acres had a problem. How would their dreams of wealth be realized if this new law succeeded in protecting the mountain and its forests, and forever committed them to their primordial purpose of filtering rain gently back into the ground, the streams, lakes and the rivers that ran to the sea?

A second and related problem presented itself. The mountain was largely Chuckanut sandstone, bedrock. The speculators had assumed it was only a matter of time before city water would be provided for development.

But they had not anticipated the restrictions of growth management. Even if they could prevent the forest from being preserved, how could they get the water to develop if the new law’s prohibition of urban services (in this instance water lines) outside urban areas was enforced?

And how could they reach the residential densities necessary to make the extension of water economic if their lands were designated as rural or resource lands to be henceforth protected and preserved?

Fortunately for them, the task of selecting fair, disinterested and objective members of the community to determine what resource lands and critical areas would be protected, to draw the boundaries in rural areas where more intense development would be allowed, to decide what the zoning of county lands would be, and what enforcement of the new law would be undertaken, fell to our county.

Without going into the whole litany of abuses perpetrated in the purported implementation of growth management, comprehensive planning and enforcement of the same in Whatcom County, let’s just follow along as events unfolded on Squalicum Mountain.

Not long ago, one local developer, who holds a large part of the forest on Squalicum Mountain, and is keen on seeing water there, bragged of his significance in the original planning and zoning process.

Apparently it allowed him to protect his holdings from protection as resource lands and to assist in creating an enormous area for greater development above Toad Lake, in an area where no development previously existed. He even managed to turn most of his lands, which should have been designated resource lands and at least zoned for rural forestry, into five-acre lots.

Interestingly, this grossly exaggerated LAMIRD even included Mr. Kremen’s parcel. Fortunately for him, and the others anticipating water in the area, this meant that they would not be affected by restrictions placed on property designated as forest resource land. They would be able to subdivide and create residential densities that otherwise would be barred. Unfortunately, this egregious designation was challenged for the abuse of the law that it was. Mr. Kremen was by then the county executive. So fortunately for the speculators, the county government came to their aid and, even after the Growth Management Hearings Board found no evidence of existing structures had been presented to justify the boundaries, the county challenged the board’s requirement that they show what development existed when the act passed. (The Court of Appeals recently ruled against them, and the county must show what actual logical boundaries existed in 1990.)

And throughout it all, Mr. Kremen and others, while defending their zoning for dense residential development, chose for tax purposes to continue to claim it was designated forestland.

But damn that bedrock. Nonetheless, damned as they were, what you can’t accomplish with a little help from your friends (and neighbors).

The aforementioned developer, that zoning maven, began selling his five-acre parcels, and the purchasers built, relying on wells, blessed by the county. Without review by the Department of Ecology to determine if water was even available on a sustainable basis, folks built homes. Even as difficulties with the wells became apparent, more homes connected to the marginal wells, which soon failed.

But never you mind, the friendly nearby water district piped water to the properties even though there was no health or safety emergency. Thank goodness there was no enforcement of the prohibition. Thank goodness the county didn’t really require that wells be adequate and reliable.

Ah, but what are friends for? Who knows when you might need water yourself? And this would become the model for other would-be developers. Planned emergencies. Our county executive got it. He proposed to subdivide his land and proposed that wells into this bedrock would be the source of their water too. And if they failed? There would probably be some pipes nearby.

How, you might ask, could the county allow urban water services outside of the urban growth boundary? Well, as is so often the case, by simply ignoring the law.

Now that took some careful drafting in the comprehensive plan. Though the plan requires we “discourage extension of urban levels of water service to areas not designated as urban growth areas,” the county has, without coming right out and admitting the same, thrown out that pesky second condition for determining if a service is rural “and normally not associated with urban areas. ”

To understand how they created this little loophole for their developer friends requires reviewing the Whatcom County Comprehensive Water Plan. Way back in Part 2, in Section 5, they get around to distinguishing between urban and rural levels of water service. “ ‘Urban’ levels of service are provided within the Urban Growth Area (UGA) boundaries, and conversely ‘rural’ services occur outside the UGA.”

Now, if this is intended to define what intensities of service are appropriate in rural areas, it is circular and meaningless. How can the underlying zoning define whether a given intensity of service is at a rural level?

So here’s where they got cute. They go on, “Without further definition by local government, (that be them) the Legislature has determined that ‘rural services’ include those public services and public facilities historically and typically delivered at an intensity usually found in rural areas, and may include domestic water systems, fire and police protection services, ...” That’s right, dot dot dot!

Let’s not even mention that pesky second condition. Had they explicitly stated they were not adopting that second condition, “and normally not associated with urban areas,” the plan would be inconsistent with the Growth Management Act, and invalid.

But in practice, for instance, in the matter of extending eight-inch water lines outside of the UGA onto Squalicum Mountain, the county attorney can claim, “Moreover, pursuant to WCC 20.82.030 (3), these pipes are outright permitted in all areas of the county. This project does not violate the Growth Management Act’s prohibition against extending urban services into rural areas.”

Now WCC 20.82.030 (3) concerns conditional uses, exceptions to a general prohibition, and it allows these pipes to be extended “outright” if they are (1) in conformance with a state-approved water comprehensive plan and consistent with the Whatcom County Comprehensive Plan; or (2) if their principal function is to provide service to a new development approved either by Whatcom County or a municipality; or (3) if their purpose is to address a health emergency documented by the state or county health department.

Well, first, let me assure you that eight-inch water lines are not usual in urban areas. Therefore, to be extended outside of the UGA must mean they are necessary to resolve a health or safety emergency. But no emergency was documented by either of the government agencies mentioned in the code when the hearing examiner approved the water lines (and no restriction on their subsequent use was considered).

And there was no new development (none that they wished to discuss openly, anyway).

And finally, if we assume the Comprehensive Water Plan means what it says, that the Legislature’s definition of rural services are adopted to distinguish between rural and urban levels of water service in Whatcom County, then extension of water at levels of intensity found in urban areas are “outright” not allowed.

But emboldened by the actual ease with which otherwise unlawful extensions of water were being allowed on Squalicum Mountain, Water District 7 continued to abuse the situation until the flagrancy of their actions could no longer be concealed. It became so bad that a whistleblower in county planning slipped a copy of the agreement the water district claimed as their justification to concerned citizens. Low and behold they had no right to provide water. But so much damage had already been done.

And, seeing the same green light at the county, developers had stepped up efforts to put still more residences on the mountain, in the watershed. Vineyard Development reached an agreement with Water District 10, aka Lake Whatcom Water & Sewer District, to expand water and sewer service to a cluster development they planned in the rural forest, in the watershed, atop Squalicum Mountain, conveniently near our county executive’s parcel.

The only significant condition to that agreement: that the county government agree that it was not inconsistent with the Growth Management Act. What a hurdle! (The county attorney got the county council to affirm, as a conclusion of law, they are “outright” allowed anywhere in the county and this is consistent with the GMA.)

The water district and the developer undertook a feasibility study (yes, the same one that the county attempted to suppress) to quietly bring water to the district’s present boundary at sufficient intensity to later serve that new development, and maybe even some others nearby.

But, alas, with everyone happily dancing down to the bank, some uninvited party crashers burst in and the music stopped. These rounders, these ham and eggers, intended to challenge the powers that seem to be. The question was raised, “Aren’t water and sewer barred outside of urban growth areas?” The question was obviously asked in ignorance. Who would dare question us? Who’d a thunk it!

The county’s position: we can extend water services anywhere we want in the county if the underlying zoning is rural, because then, by definition, it’s a rural governmental service. (Yep, the great circle route!) But this doesn’t set so well with their water plan, which adopted the Legislature’s definition of rural governmental service.

Zoning will never be enough, and was never intended alone, to accomplish the goals of the Growth Management Act. The wisdom of the law was its recognition that these urban services will inevitably create inexorable political pressure on malleable county governments to capitulate to zoning changes for powerful interests who will encourage their installation to then develop land in reach of them.

In an early case before the fledgling Growth Management Hearings Board that ultimately reached the Washington State Supreme Court and is precedent for all subsequent rulings on the expansion of urban services, Cooper Point Association v. Thurston County, the court stated clearly the Legislature’s intent in passing the Growth Management Act.

The court concluded, “This plain language of the statute reflects the Legislature’s overall goals and policies for the GMA: ‘to reduce sprawl and to reduce the inappropriate conversion of undeveloped land into sprawling, low density development;’ ‘to protect the rural character of an area’ and ‘to bar extension or expansion of urban governmental services into designated rural areas.’ ”

Moreover, the record before the board suggested that the push for “further development or a future reclassification of Cooper Point from rural to urban growth area would be likely, if not inevitable.”

The court added that their ruling and the act required that county plans comply with the Legislature’s mandate to preserve rural character. And this will be the issue when the hearing Judge Uhrig ordered reopened begins. What does the county’s comprehensive plan allow in rural and resource lands? The answer will have an enormous impact on all of Whatcom County, not just for Squalicum Mountain, Lake Whatcom and Whatcom Creek.

Outside of cities, towns and designated urban growth areas, can water districts and other public water systems continue to expand to facilitate development? Did the Legislature really intend to restrict water and sewer services in rural areas to protect them from sprawl? Will Whatcom County’s permissiveness be curbed? Can Pete Kremen overcome his own interests and protect Squalicum Mountain and Lake Whatcom?

For you see — this is the conspiracy.

It’s not a bunch of greedy little guys in some quiet corner of the country club plotting together to heist our common wealth. It is the wrong people in important places, with personal interests and aspirations that conflict with the law and the public interest. It is their understanding how the crooked little game can be played and their acquiescence.

They’re not looking to split the loot. They really don’t give a damn if anyone else gets anything. The conspiracy works because they all just want to get theirs.

It’s a shame. §