2 BEFORE THE GROWTH MANAGEMENT HEARINGS BOARD

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1 1 BEFORE THE GROWTH MANAGEMENT HEARINGS BOARD WESTERN WASHINGTON REGION STATE OF WASHINGTON FUTUREWISE, GOVERNORS POINT ) DEVELOPMENT COMPANY, TRIPLE ) R. RESIDENTIAL CONSTRUCTION, ) INC., AND THE SAHLIN F AMIL Y, ) ERIC HIRST, LAURA LEIGHT ) BRAKKE, WENDY HARRIS AND ) DAVID ST ALHEIM, AND THE CITY ) OF BELLINGHAM, ) ) Petitioners, ) ) vs. ) ) WHATCOM COUNTY, ) 1 ) Respondent. ) No. --00c WHATCOM COUNTY'S RESPONSE TO OBJECTIONS TO A FINDING OF COMPLIANCE Page 1 Grand Ave., Suite 1 (0) -; fax. (0) -

2 1 1 TABLE OF CONTENTS 1. PROCEDURAL AND FACTUAL BACKGROUND... II. BURDEN OF PROOF III. ARGUMENT A. Introduction B. Rural Element "Protective Measures" C. Other Comprehensive Plan Issues D. Development Regulations E. LAMIRD Boundaries F. Population Allocation... IV. CONCLUSION Grand Ave., Suite 1 Page (0) -; fax. (0) -

3 1 TABLE OF AUTHORITIES Cases 00 Friends of Washington v. Thurston County, WWGMHB No , Compliance Order, p. 1 (/0/0) Central Puget Sound Regional Transit Authority v. City of Tukwila, CPSGMHB No , FDO, p. (//1) City 0.[ Anacortes, et a!., v. Skagit County, WWGMHGB No c, FDO, p. (//01) Dep't of Ecology v. PUD 1, 1 Wn.d 1,1, P.d (1)... 1, Dry Creek Coalition v. Clallam County, WWGMHB No , FDO, p. (/1/0)..., Dry Creek et a!. v. Clallam County, WWGMHB No c, p. (/0).....,, 1 Dry Creek Coalition and Futurewise, v. Clallam County, WWGMHB No c, Compliance Order (LAMIRDs and Rural Lands) (//0) Dry Creek Coalition and Futurewise, v. Clallam County, WWGMHB No c, FDO (//0)... 1,, FOSC v. Skagit County, WWGMHB No (Compliance Order, /1/1)... 1 Futurewise and City of Bellingham v. Whatcom County, GMHB No c... 1 Futurewise v. Whatcom County, No , Order Following Remand from the Supreme Court (//)...,,,0 Futurewise v. Whatcom County, WWGMHB No , Petition for Review 1 (//0) Gold Star Resorts, Inc., v. Futurewise, 1 Wn.d, P.d 1 (0)... Keesling v. King County, CPSGMHB No , Order Finding Compliance (1//0)... Kittitas County v. Eastern Washington Growth Management Hearings Bd, 1 Wn.d, P.d, () Panesko, et a!. v. Lewis County, WWGMHB Case No c Quadrant Corporation v. State Growth Management Hearings Board, Wn.d,, 1 P.d.1 (0) Page Grand Ave., Suite 1 (0) -; fax. (0) -

4 Regional Transit Authority v. City o/tukwila, CPSGMHB No , FDO, p. 1 (//1) Sky Valley, et al. v. Snohomish County, CPSGMHB No. --00c, Order on Compliance, p. (//1) Thurston County v. WWGMHB, 1 Wn.d, -0,10 P.d (0)... Wells v. Whatcom County, 0 Wn. App., 1 (00) Wells et. al v. Whatcom County, WWGMHB Case No --000c, Final Decision and Order, p. (1/1/1) Whitaker v. Grant County, EWGMHB No , Second Order on Compliance ( /1/ 00) Wise v. City o/battleground, WWGMHB Case No , FDO, p. (June,0)... 1 Codes and Statutes 1 RCW.0A.() RCW.0A , 1 RCW.0A.00()(d)(ii) passim RCW.0A.00()(d)(iii) passim 1 RCW.0A.1() passim 1 RCW ,, RCW , 1 RCW.1.0 () RCW 0..00() WAC--0(1) WAC --0 () WAC --0 () WAC ,,, WAC --0 () Page Grand Ave., Suite 1 (0) -; fax. (0) -

5 wae--() wee ee wee 1.1..B wee wee ,,0 wee wee wee wee wee wee , wee.0.0() wee passim wee wee wee wee..00(a) wee wee..00(e) , Other Authorities Planning the Built Environment p. (APA, Chicago Ill.: 00) weewsp, p. -, -, - and Page Grand Ave., Suite 1 (0) -; fax. (0) -

6 1 I. PROCEDURAL AND FACTUAL BACKGROUND In early 0, the County completed the seven year review of its comprehensive plan ("CP") and development regulations ("DRs"). Futurewise challenged this action by filing a petition for review with the Board, raising specific issues challenging Whatcom County's CP policies LAMIRD boundaries and expansions, the locational criteria for the LAMIRD designations, and the mapping of areas of more intense rural development. In addition, Futurewise challenged the following zoning regulations: the RRI zone (allowing Idull acre in the rural area outside the logical outer boundaries of a LAMIRD), the RR zone (allowing dull acre in the rural area outside the logical outer boundaries of a LAMIRD), the RR and EI zones (allowing dull acre in the rural area outside the logical outer boundaries of a LAMIRD), the RA zone (allowing 1 du/ acres in the rural designation); and the RRI zone (allowing 1 du/ acres in the rural designation). Futurewise v. Whatcom County, WWGMHB No , Petition for Review (//0). On September, 0, the Board ruled that the challenged CP provisions relating to LAMIRDs and the challenged rural densities did not comply with the GMA. At that time, the Board decided not to review the existing areas, ordering that the criteria first be adopted and the areas then reviewed by the County according to GMA compliant criteria. Gold Star Resorts, Inc., an intervenor in the case, appealed the Board's decision. On December 1,0, a final decision in this matter was issued by the Washington Supreme Court. Gold Star Resorts, Inc., v. Futurewise, 1 Wn.d, P.d 1 (0). In its conclusion, the Court stated: We affirm the Court of Appeals' determination that collateral estoppel and res judicata principles do not bar Futurewise's challenge to the County's failure, during the seven-year review required by the GMA, to review and Grand Ave., Suite 1 Page (0) -,' fax. (0) -

7 revise the comprehensive plan to include criteria for LAMIRDs that reflect the 1 amendments to the GMA. Under Thurston County, Futurewise was entitled to bring this challenge, but not to bring challenges to portions of the comprehensive plan not directly affected by new or recently amended GMA provisions. We also affirm the Court of Appeals' decision upholding the Board's holdings that the County's comprehensive plan does not comply with the GMA's LAMIRD provisions and that the County was required but failed to revise the plan to include the LAMIRD criteria and then apply them in establishing areas of more intense rural development. Finally, we reverse the court of Appeals' holding that the Board did not improperly apply a bright line rule in addressing Futurewise' s challenge to the rural density designations; the Board did in fact rely on a bright line rule of one residence per five acres in rural areas (other than LAMIRDs). 1 Accordingly, this matter is remanded to the Board for reconsideration 0 Futurewise's challenges to the rural density designations without applying a bright line rule. In addition, the County must revise its comprehensive plan to conform to the LAMIRD provisions of the GMA and then apply the statutory criteria to establish appropriate areas of more intensive rural development. As noted, it is possible that some of the County's existing areas of more intense development will be found to conform to the statutory criteria. But these criteria must be incorporated into the comprehensive plan and then applied before any such determinations can be made. As we have noted in this opinion, the county has evidently already begun the process of reassessing its areas of more intense rural development. 1 On May,, the matter was officially remanded to the Board for proceedings 1 consistent with the Supreme Court's decision through an order entered by the Whatcom County 1 Superior Court. As indicated above, the Supreme Court divided this case into two separate procedural paths. First, all of the rural density issues that were raised in Futurewise' petition were remanded to the Board for further consideration and, second, the issues related to LAMIRDs were remanded for compliance proceedings. Whatcom County adopted Ordinance No. -0 on May, to amend the County's Rural Element to comply with the portion of the Supreme Court decision related to LAMIRDs. In addition to the compliance proceedings, additional proceedings challenging the new ordinance were initiated through the filing of petitions for review by Futurewise, Petitioner's Hirst, et ai., the City of Grand Ave., Suite 1 Page (0) -,' fax. (0) -

8 1 1 Bellingham, and Governors Point, et al.. Meanwhile, the remanded zoning density issues were the subject of a separate hearing that occurred on July,. Those issues were resolved by the Board in its September, order in which it found that the only remaining challenged zoning that could exist outside of properly established LAMIRDs was the RA zoning and it found that to be compliant with the GMA in light of the County's existing development patterns and the limited presence of that zone. Futurewise v. Whatcom County, No , Order Following Remand from the Supreme Court (//). As for the issues pertaining to the County's CP policies and designation criteria related to LAMIRDs and the mapping of the LAMIRDs, the Board, after briefing by the parties, decided to coordinate the compliance proceedings with the proceedings of new petitions. Subsequent to a hearing on November,, in its Final Decision and Order (FDO) issued on January, 1 in this matter, the Board found Ordinance No. -0 out of compliance with the Growth Management Act (GMA) on several issues and made findings of invalidity on some of those issues. The Board's decision was carefully tailored to address only those issues specifically raised by the petitioners in their briefing. In responding to the Board's order, the County studied the Board's decision carefully and adopted Ordinance No. 1-0 to address the specific findings in the FDO. Prior to the adoption of Ordinance No. -0,,01 acres of the 1,000 acres of rural land in unincorporated Whatcom County were designated for more intensive rural development III the Suburban Enclave, Small Town, Commercial Crossroads, Resort/Recreational Subdivision, and Transportation Corridor designations. Ex. R-0C, LAMIRD Report, Appendix C. After the adoption of the Ordinance No. -0,, acres remained in designated Limited Areas of More Intensive Rural Areas (LAMIRDs), a reduction To Finding ojcon,lpliance Page Grand Ave., Suite 1 (0) -;jax. (0) -

9 of, acres. Now, with the adoption of Ordinance No. 1-0, the total LAMIRD area has been furthered reduced to,1 acres. Eliza Island, Fort Bellingham/Marietta, and North Bellingham are no longer designated as LAMIRDs, and the boundaries of the Emerald Lake, Smith and Guide, and Van Wyck LAMIRDs were reduced in accordance with the Board's findings in the FDO. The 1 amendments also created a new designation, Rural Neighborhood, to contain rural areas that are zoned RA or are subject to the Residential Rural Density Overlay (RRDO). Of the 1,0 acres in the rural area subject to the original order of noncompliance in 0,,1 (%) remain in LAMIRDs,, (%) are now designated as Rural Neighborhood,, (1 %) are now designated as Rural, and (%) are now designated as Agriculture or Rural Forestry. In addition to the significant additional downzoning imposed by Ordinance No. 1-0, the County also completely re-hauled its zoning code to address the Board's concerns. In the Rural Community designation (Type I LAMIRDs), all nonresidential uses are now subject to a requirement that they be consistent with the character of that particular LAMIRD as it existed on July 1, 10. The County has researched the uses that existed in all of these areas and compiled a detailed list of those uses in Appendix F to the LAMIRD Report. Ex. R-0D. Further, the County has amended the zoning code to ensure that uses in the Rural Tourism designation (Type II LAMIRDs) are limited to small-scale recreational or tourist uses that are otherwise compliant with the requirements of RCW.0A.00()(d)(ii). Finally, the County has amended the definition of Rural Business in its zoning code to be consistent with its CP and the GMA, and has limited the size of uses in the Rural Business designation (Type III Page Grand Ave., Suite 1 (0) -; fax. (0) -

10 LAMIRDs) to ensure that new businesses are small-scale and the expansion of existing businesses is limited. II. BURDEN OF PROOF I In the FDO at issue here, the Board found Ordinance No. -0 out of compliance with the Growth Management Act (GMA) on several issues and additionally made findings of invalidity on the "amended portions of WCC.,.0,.1 and. and the logical outer boundaries of certain LAMIRDs." FDO, p.. On the issues subject to a finding of invalidity, the burden is first on the County to demonstrate that the ordinance it has enacted in response to the finding of invalidity no longer substantially interferes with the goals of the GMA. RCW. 0A.( ). For purposes of board review of the CP provisions and development regulations (DRs) adopted by local governments in response to a finding of non-compliance, and those on which the burden to overcome invalidity has been met, the GMA establishes three major precepts. The first 0 these is a presumption of validity. CPs and DRs, and amendments thereto, adopted under the GMA, are presumed valid upon adoption. RCW.0A.(1). The burden is on the petitioner to demonstrate that any GMA action is not in compliance with the GMA requirements. In a fairly recent case, this Board described the burden to overcome the presumption of validity accorded to County enactments: In order to overcome the presumption, a petitioner must persuade the Board that the jurisdiction's action was clearly erroneous and to do so it must present clear, well-reasoned legal argument supported by appropriate reference to the relevant facts, statutory provisions, and case law which establishes that the GMA's requirements have not been met. Panesko, et af. v. Lewis County, WWGMHB No c, Order on Reconsideration, pp. - (0) citing Wells v. Whatcom County, 0 Wn. App., 1 (00). Page Grand Ave., Suite 1 (0) -;fax. (0) -

11 The second major precept is the standard of review. When reviewing a challenge to any county action, the Board shall find compliance unless it determines that the action by the county "is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of [the GMA]." RCW.0A.(). For the Board to find an action to be clearly erroneous, it must be "left with the firm and definite conviction that a mistake has been made." Dep't of Ecology v. PUD 1, 1 Wn.d 1,1, P.d (1). The final major precept is that the Board must grant deference to local governments in how they plan for growth: In recognition of the broad range of discretion that may be exercised by counties and cities in how they plan for growth, consistent with the requirements and goals of this chapter, the legislature intends for the boards to grant deference to the counties and cities in how they plan for growth, consistent with the requirements and goals of this chapter. Local comprehensive plans and development regulations require counties and cities to balance priorities and options for action in full consideration of local circumstances. The legislature finds that while this chapter requires local planning to take place within a framework of state goals and requirements, the ultimate burden and responsibility for planning, harmonizing the planning goals of this chapter, and implementing a county's or city's future rests with that community. RCW. 0A. 1 (in part). Wise v. City of Battleground, WWGMHB No , Final Decision and Order, p. (//0). The Washington Supreme Court elaborated on the broad deference that the Board must grant to county actions: In the face of this clear legislative directive, we now hold that deference to county planning actions, that are consistent with the goals and requirements of the GMA, supersedes deference granted by the APA and courts to administrative bodies in general. See, e.g., State v. Bradshaw, Wash.d,, P.d 0 (0) (general desire of legislature to promote uniformity must give way to legislature's specific direction), cert. denied, -- U.S. --, 1 S.Ct. 1, -- L.Ed.d - (0); Nat 'I Elec Contractors Ass 'n v. Riveland, Wash.d,, P.d 1 (1) (holding specific provisions must prevail over more general statutes). While we are mindful that this deference ends when it is shown that a county's actions are in fact Grand Ave., Suite 1 Page] ] (0) -; fax. (0) -

12 1 a "clearly erroneous" application of the GMA, we should give effect to the legislature's explicitly stated intent to grant deference to county planning decisions. Thus a board's ruling that fails to apply this "more deferential standard of review" to a county's action is not entitled to deference from this court. Quadrant Corporation v. State Growth Management Hearings Board, Wn.d,, 1 P.d.l (0). A. Introduction III. ARGUMENT In this matter, the Petitioners have attempted to expand the scope of these proceedings well beyond their legal parameters. Initially, it is important to note that Ordinance No. -0 was adopted to amend the County's Rural Element to comply with the Supreme Court decision. It must be emphasized that that ordinance was not the initial adoption of the Rural Element or its implementing DRs. Existing compliant portions of the comprehensive plan and development regulations, unless amended by that ordinances, were not subject to challenge. The Board recognized this repeatedly in the FDO. See, e.g., FDO, p. 1, line - ("The Board will not consider challenges based on portions of the County's development regulations that were not amended.") In addition, throughout their briefings, the Petitioners are in effect calling upon the Board to make policy choices for the County that should be made by County Council, the body that was elected by the people of Whatcom County to make such choices. The responsibility of a GMHB is to decide whether actions of a local government comply with the GMA rather than whether a better solution could have been found. FOSC v. Skagit County, WWGMHB No (Compliance Order, ) Furthermore, it is well-established that the scope of compliance proceeding~ is limited to determining whether the actions taken comply with the legal issues addressed and remanded in the FDO. Keesling v. King County, CPSGMHB No , Order Finding Compliance Page 1 Grand Ave., Suite 1 (0) -; fax. (0) -

13 (1//0). It is not legally permissible, nor would it be fair to the County, to allow petitioners 1 to expand the scope of the proceedings beyond the issues specifically argued by the parties and decided by the Board in the FDO. B. Rural Element "Protective Measures" Whatcom County was criticized during the original review of the CP by the Board for not including specific measures to implement RCW.0A.00()(c). Whatcom County's response in the original proceeding pointed to the very same argument that the Petitioners now rely on. That argument being that the CP is a blueprint or guide and it is not intended to be a regulatory document. The Board in the FDO found that the "statutory language of the GMA is clear that protective measures shall be included in the Plan". FDO, p. 1. To comply, with the FDO, Whatcom County included very specific protective measures, even in some cases adopting portions of the zoning regulations by reference. Petitioners now argue that Whatcom County has been too specific. Futurewise Objections, p. ; Hirst Objections, p. -. This argument clearly fails. There is nothing in the GMA that prohibits a CP from being very specific. The FDO clearly stated that Whatcom County was required to adopt protective measures. The Supreme Court in Kittitas County v. Eastern Washington Growth Management Hearings Ed, 1 Wn.d, P.d, () acknowledged "[t]he GMA requires deference to local government determinations regarding what measures will best protect rural character but it is clear that plans must include such measures." As quoted by the Board, the Kittitas Court also held "the presence of protective measures in the zoning regulations is irrelevant because the statutory language of the GMA is clear that protective measures shall be included in the Plan." Id. at 1. Pagel Grand Ave., Suite 1 (0) -; fax. (0) -

14 Whatcom County's approach of adoption by reference of specific measures from the zoning ordinance must be given deference. The result of the incorporation by reference is the same as if the measures were all typed in identical form into the CPo The Petitioners' argument cites a perceived inconsistency that speculatively could result if the CP is changed but not the zoning regulations or if the zoning regulations are changed and not the CPo This inconsistency is speculative and does not support a finding of non-compliance with the GMA. Whatcom County understands and has discussed during the adoption of the Ordinance the requirement 0 simultaneous update to the CP and the zoning regulations. Petitioners fail to cite any actual violation of the GMA resulting from Whatcom County's approach, arguing instead, a possible confusion or expenditure of resources for the public and Whatcom County that could occur from the adoption by reference approach. If, at a later time, an inconsistency between the CP and the development regulations occurs a new action before the Board can be filed; however, there is no GMA compliance issue today. The CP measures to contain and control rural develonment under RCW.0A.00()(c)(j) and measuj"es for reducing the inappropriate conversion of undeveloped land into sprawling low-density development in the rural area under RCW.0A.00()(c)(iii) comply with the Growth Management Act. As was stated in Whatcom County's Compliance Report, RCW.0A.00() (c) (i) and (iii) are closely related and will be discussed together. The framework for containing or otherwise controlling rural development begins with the overall land use plan for Whatcom County and not with the specific provisions of the Rural Element. To place the Rural Element controls in context, it is helpful to consider provisions of the CP that have previously been found compliant. "Each provision of a statute should be read together with related provisions to determine the legislative intent underlying the entire statutory Page Grand Ave., Suite 1 (0) -; fax. (0) -

15 scheme. Reading the provisions as a unified whole maintains the integrity of the respective provisions of the statute." Dry Creek Coalition v. Clallam County, WWGMHB No c, Final Decision and Order, p. 1 (//0). The land use element of the CP includes: Ex.R-0A, p.. Goal A: Ensure provision of sufficient land and densities to accommodate the growth needs of Whatcom County and protect the qualities that make the county a desirable place to live. Policy A-l: Concentrate urban levels of development within designated urban growth areas. Policy A-: Draw a distinct boundary between urban and rural uses. These policies are incorporated into the Rural Element through Policy DD-. The Rural Element provides more specific directives to contain or otherwise control rural development. Policy DD-l and Policy DD- were specifically amended in the Ordinance to provide clear direction on containing and controlling rural development: Policy DD-l: Concentrate growth in urban areas per the population projections in Chapter 1 of this plan, and recognize rural lands as an important transition area between urban areas and resource areas. By February 1 of each year the department will publish a report that monitors residential development activity outside the urban growth areas during the previous year and compares that data with the adopted population growth projection for those areas. If it is apparent that growth occurring outside the urban growth areas is inconsistent with adopted projections, the County shall take action to address the discrepancy. Actions may include changing the allocation of the projected population growth during the comprehensive plan update required per RCW.0A.0(1), or changing development regulations to limit growth outside the urban growth areas. In addition, as the County and cities review the capacity for growth in the urban growth areas, the county should coordinate with the cities to ensure that policies are in place that are consistent with encouraging growth in the urban areas and reducing demand for development in rural areas. Policy DD-: Allow more intensive uses in limited areas of more intensive rural development designated consistent with RCW Grand Ave., Suite 1 Page (0) -; fax. (0) -

16 Ex.R-0SA, p. and..0a.00(s)(d), which provide public and commercial services and employment opportunities. Reduce the inappropriate conversion of undeveloped land into sprawling, low density development in the rural area by establishing clearly defined boundaries for these areas as well as criteria for creating or changing those boundaries consistent with RCW.0A.00(S)(d). The modifications to these policies removed the conditional language and created specific boundary requirements for more intense development. strengthened by the following already existing Rural Element requirements: Ex.R-0SA,p.-1. These newly amended policies are Goal EE: Ensure that rural areas are provided with services consistent with the rural character and that development patterns do not encourage an increased service level or degrade water quality. Policy EE-: Public services and public facilities necessary for rural commercial and industrial uses shall be provided in a manner that does not permit low-density sprawl. Uses may utilize urban services that previously have been made available to the site. The statements above provide only a partial glimpse of the measures provided to "[ c ] ontain or otherwise control rural development." The entire section describing LAMIRDS, their citing and their uses under HH also provides additional measures of control for the LAMIRD designated areas under the CP. These statements provide clear direction for what Whatcom County envisions for protecting the rural character and guiding development. To further ensure compliance, Whatcom County specifically followed the Board's guidance in the FDO. The FDO states that the statement in Policy GG- "more intensive development should be contained" does not provide a measure to contain and control rural development as required by RCW.0A.00()(c)(i). The Board's concern was that over time Page 1 Grand Ave., Suite 1 (0) -; fax. (0) -

17 the "existing rural character" could change. GG- to state: Ex.R-0A, p. 1. Whatcom County took notice and amended Policy Policy GG-: The Rural designation includes areas of traditional rural uses and gross residential densities at or below one unit per five acres. To reduce the inappropriate conversion of undeveloped land into sprawling, low density development in the rural area, more intensive development shall be contained within Rural Community, Rural Tourism, or Rural Business designations, which are limited areas of more intensive rural development (LAMIRDs), and predominantly residential areas with established densities greater than one unit per five acres shall be contained in Rural Neighborhood designations. This policy places specific limits on the areas that could incorporate more intensive development and higher residential densities. Whatcom County further defined and contained these areas with the adoption of the following: Policy 1-1: Areas designated as Rural Communities shall meet the criteria stated in this chapter and the requirements of RCW.0A.00()(d)(i), which describes limited areas of more intensive rural development consisting of the infill, development, or redevelopment of existing commercial, industrial, residential, or mixed-use areas, including necessary public facilities and public services to serve the limited area. Policy 1-: Boundaries of Rural Communities shall meet the criteria stated in this chapter, and the requirements ofrcw.0a.00()(d)(iv), which requires limited areas of more intensive rural development to be clearly identifiable and contained within a logical outer boundary delineated predominately by the build environment as it existed on July 1, 10. Policy 1-: Additional Rural Communities shall not be designated, nor shall boundaries of Rural Communities be changed unless the area of the proposed addition meets the criteria stated in this chapter, and requirements ofrcw.0a.00()(d). Designated Resource Lands should not be redesignated as Rural Communities. Grand Ave., Suite 1 Page 1 (0) -; fax. (0) -

18 Policy JJ -: Lands inside Rural Community designation boundaries that are within low-density residential zones (one residence per five acres or less density) or resource zones, or are federally owned, should not be rezoned to allow more intensive uses and densities. Policy KK-1: Lands designated for Rural Tourism shall meet the criteria stated in this chapter, and the requirements ofrcw.0a.00()(d)(ii), which describes limited areas of more intensive rural development consisting of the intensification of development on lots containing, or new development of, small-scale recreational or tourist uses, including commercial facilities to serve those uses, that rely on a rural location and setting, but that do not include new residential development (other than a dwelling unit accessory to the business for use by the owner-manager or caretaker). Policy KK-: Designated Resource Lands shall not be redesignated as Rural Tourism. Policy LL-1: All lands designated Rural Business shall meet the Rural Business designation criteria stated in this chapter, and the requirements of RCW.0A.00()(d)(iii), which describes limited areas of more intensive rural development consisting of the intensification of development on lots containing isolated nonresidential uses or new development of isolated cottage industries and isolated small-scale businesses. Policy LL-: Designated Resource Lands shall not be redesignated as Rural Business. Policy MM-1: Areas zoned for densities greater than one dwelling per five acres shall be contained within Rural Neighborhood boundaries. Rural Neighborhood boundaries shall not be expanded beyond those established in 1, which were drawn to include areas that were developed at higher rural densities in. Policy MM-: In the Whatcom County Code, the Rural and Rural Residential zoning districts may include Rural Residential Density Overlays that may be applied to areas within the Rural Neighborhood designation where smaller-lot rural residential development has already occurred. The overlay should allow for infill development with lot sizes consistent with those of surrounding lots, where public water service is available. The overlay shall limit eligibility of lots based on the percentage of surrounding lots that were developed in, and shall establish a maximum density that may be achieved using the overlay. The Rural Residential Density Overlays shall not be created or expanded Grand Ave., Suite 1 Page (0) -; fax. (0) -

19 Ex.R-0A, p. -. outside of Rural Neighborhoods or into areas where smaller-lot development has not occurred; such expansion is not consistent with maintaining the traditional character of the surrounding rural areas. Policy MM-: Rural Neighborhoods are designated adjacent to Urban Growth Areas only in areas where developed densities exceeded one dwelling per. acres in, and there is little potential for efficient urban development in the future. The complete text of several of the policies incorporated by specific reference into Policy DD- is provided in its entirety to illustrate to the Board the exact prescriptive language Whatcom County incorporated to provide measures that are protective of the rural areas in the manner suggested by the Kittitas Court and the Board in the FDO. The Board through the FDO suggested that the RRDO and the R-A zoning be restricted to areas now in existence. FDO p.. Whatcom County has done exactly that in enacting Policy MM-1 and MM-. These two policies limit the ability of areas to rezone to a higher zoning because the rezone would be inconsistent with the specific language of the CP. The Petitioners argue that Whatcom County is in continued non-compliance for f~iling to adopt measures to provide a variety of Rural densities. However, this argument must be ignored. Whatcom County was found to be in compliance with the GMA on this issue. The Board, when addressing this issue, stated "[t]he Board agrees with the County that these provisions, when brought into compliance by the adoption of appropriate "measures" as indicated above and in the context of sub- area plans, assure a variety of rural densities." FDO p.. The measures referred to by the Board, to limit rezones, have been adopted and the Petitioners' attempt to reargue this point must be ignored. Page 1 Grand Ave., Suite 1 (0) -;fax. (0) -

20 1 The continued argument by the Petitioners that rezones between the Rural loa and Residential Rural loa and the Rural A and the Residential Rural A are not regulated or controlled is not before the Board. The Board cannot lose sight of the fact that, in addition to compliance with the CP, the GMA requires that future land use decisions in the rural areas be based on the consideration of "local circumstances" under RCW.0A.00()(a) and on the "rural character of the area as established by the county" under RCW.0A.00()(c). These mandates make clear that rural planning is to consider the existing character of an area in future decision making. However, it is that unique character that exists that controls decision making. With this framework of information, Whatcom County will need to address rural character on a case by case basis when presented with a rezone request. The argument by Petitioners is analogous to the discussion in Dry Creek Coalition v. Clallam County, (supra, -). In that case, the Board considered an argument that the zoning regulations were inadequate to implement the LAMIRD section of the Comprehensive Plan because there was no record in the plan or the zoning code to describe the 10 development size, scale, use and intensity. The Board held that the County had not violated the GMA, "by failing to adopt parameters that define existing character of each LAMIRD where no such requirement is contained in the GMA." The Board cited an earlier decision in Dry Creek et at. v. Clallam County, WWGMHB No c, p. (//0) where they held: Finally, DCC argues that the Board should require documentation in the CP or the Clallam County Code of the parameters of the Laird's LAMIRD as of July 1, 10, so that future decision makers would have this available as a guideline. In fact, several sections of the Clallam County Code provide that the use allowed in a particular zone must be "similar to the use, scale, size or intensity as the uses that existed in the area prior to or as of July 1, 10". The Board agrees that specification of those parameters would provide great assistance to the County in determining the nature of future land uses to be allowed in its LAMIRDS. However, Grand Ave., Suite 1 Page (0) -; fax. (0) -

21 no such requirement exists in the GMA, and it is not error for this Board to fail to impose such a requirement. In any event, as a result of this appeal, an extensive record has been compiled regarding the state of the built environment in the County's LAMIRDs as of July 1, 10, which the County and the public can rely upon for future land use decisions. Similarly, the GMA does not require Whatcom County to specifically provide statements 1 its CP or development regulations that document the rural character of various parts of Whatcom County. It is enough that the CP provides an understanding of what rural character is defined as and a directive to retain that character. Whatcom County has built an extensive record of area specific rural character through the LAMIRD Report, the Rural Lands Study and the subarea plans. Ex. R-0 (LAMIRD Report). The CP includes measures for assuring visual compatibility of rural development with the surrounding rural area. RCW.0A.00()(c)(ii) requires measures that apply to rural development to assure visual compatibility of rural development with the surrounding rural areas. found Whatcom County out of compliance on this issue, the Board stated: FDO p.. While the FDO Given the clear description of rural character already adopted by the County, meeting the statutory requirement to include in its Rural Element the measures needed to assure visual compatibility and protect that character should be relatively straightforward. The Board then went on to state in a footnote "[F]or example, one of the measures might incorporate or cross-reference the Design Chapter policies in Policy DD-." Id. at. Whatcom County's newly adopted Ordinance does just that and more. Policy DD- states in part "[P]rotect the character of the rural area through the County's development regulations. In addition to the policies of this plan that provide measures governing rural development... ". Page Grand Ave., Suite 1 (0) -; fax. (0) -

22 This reference includes all measures of the CP - including those in the Design Chapter that were previously relied on by Whatcom County in the original proceeding such as: CP, Chapter Goal C: Retain and enhance the components that make up Whatcom County's rural integrity-the basis of its identity-its "sense of place". Goal D: Retain the natural landscape diversity and open space experience. Goal F: Save, protect, and enhance our country's rural setting from conversion to urban/suburban development. Furthermore, a specific goal was added to the Design Chapter through Ordinance No This goal states: Goal B: As Rural Communities evolve, utilize design tools and decisions which are sensitive to and compatible with the positive character of the sunounding natural setting. Policy DD-: Protect the character of the rural area in terms of natural landscape as well as rural lifestyles and economy, per the GMA definition of rural character (RCW.0A.00()). Protect and value clean water and air, the natural environment, forested lands, agriculture, parks, trails, and open space that provide for a high-quality rural lifestyle. Policy DD-: Maintain the historic character and cultural roles of each rural area and community. Ex.R-0A, p. - (Whatcom County Comprehensive Plan, Chapter ) In addition to incorporating the Design Chapter, Whatcom County adopted specific lot coverage requirements as part of the CPo Petitioner Futurewise incorrectly claims the lot coverage standard in WCC..0 and WCC..0 is percent. This is simply false. These zoning code provisions, incorporated through Policy DD- B.l, limit lot coverage to percent, but not to exceed,000 square feet. Given the variety of uses that historically have existed in the Rural areas and given the fact there are some very large lot sizes in the Rural Page Grand Ave., Suite 1 (0) -; fax. (0) -

23 designation, the restriction is not too generous. Whatcom County has adopted a maximum permitted level of build out based on local conditions and there is no support for the concept that each parcel will be utilized to its maximum. In fact, the information cited by Futurewise on sample lot coverage being lower supports just that. For decades the lot coverage in the Rural zones was percent and the creation of the rural character as we now know it, is what has evolved. The Petitioners' speculation that lowering the lot coverage to percent (with a maximum of,000 square feet) will have the impact of more lot coverage than has historically occurred under the percent lot coverage requirement is without merit. Furthermore, as the Petitioners' arguments were developed with the incorrect understanding that a percent lot coverage was allowed, the argument should be dismissed. To further support visual compatibility between rural development and the surrounding rural area, Whatcom County adopted specific setback requirements and landscaping requirements. The Petitioners again try to exploit the standards to an unlikely result to claim that the provisions are not sufficient as measures. However, the measures are strict controls that easily qualify as protective measures under RCW.0A.00(). Given the fact that the measures are clear and prescriptive, the Petitioners' claim is really arguing that they do not like the result of the implementation of the measures. However, specific setback requirements that allow a structure to locate close to the road furthers many objectives of the Rural Element that in the eyes of the local legislative body take precedent over the picture of a "wall of houses" that Futurewise attempts to paint is misleading. The concept of the houses close to the roadway actually promotes and protects the parcel for other rural, open space, agricultural or resource uses and minimizes the impact from driveway and utility corridor construction. Page Grand Ave., Suite 1 (0) -; fax. (0) -

24 permits. The landscaping requirement also incorporates landscaping in certain development The Petitioners claim that this will not "assure visual compatibility of rural development with the surrounding area" given their limit application. Futurewise' Objections, p.. The Petitioners do not provide any support for this blanket statement. In addition, this blanket statement ignores the fact that the landscaping requirements are just one of the requirements to "assure visual compatibility" and not the only one. The CP incorporates additional protective measures to provide for cluster developments. Petitioners attempt to discredit the cluster measures by claiming they are voluntary. However, clustering is mandatory for the approximate,000 acres of Rural land originally calculated to be in the Agricultural Protection Overlay. Wells et. al v. Whatcom County, WWGMHB Case No --000c, Final Decision and Order, p. (1). As is clear from the existing Policy DD- and DD-, any parcel that falls under the APO protection triggers mandatory clustering rules. The mandatory clustering rules of the APO, taken together with the voluntary clustering under the provisions adopted by reference to assure visual compatibility, have a real impact on preserving open space tracts consistent with Whatcom County's description of their Rural area. Petitioners argue that the lack of an impervious surface maximum is a violation of the mandate to "assure visual compatibility". There is no support for this. Impervious surface has little to nothing to do with the streetscape as opposed to structures, landscaping and other "above ground" development that is more easily seen by the passerby. Furthermore, Whatcom County's current Rural landscape which the Petitioners are seeking to protect, has developed out over the decades without a specific impervious surface limitation. In addition, as is stated above, Whatcom County has incorporated by reference the CP provisions of the Environment Chapter that specifically deal with run off and other issues involved in impervious surface. Page Grand Ave., Suite 1 (0) -; fax. (0) -

25 Whatcom County methodically addressed the issues raised by the Board for adopting appropriate measures under RCW.0A00. The FDO provided some specific guidance for Whatcom County and that guidance was followed. The Petitioners attempt to skew Whatcom County's prescriptive plan, tailored to its unique Rural Element, in an effort to show noncompliance with the GMA However, their efforts fail. The Rural Element, as presented to the Board, is an appropriate planning tool consistent with the GMA and must be held compliant as such. The CP includes measures to protect the Lake Whatcom WateJ'hed and the Chuckanut Wildlife Corridor. In the FDO, the Board addressed the issue of whether the County's ordinance provided the necessary measures to protect critical areas, as provided in RCW.0A00, and surface water and groundwater resources. In addressing this issue, the Board limited its decision to the issues raised by the parties. Specifically, on page 0 of the FDO, the Board stated, "Petitioners raise two challenges: RA designation in the Chuckanut Wildlife Corridor and RR/RRDO designation in the Lake Whatcom watershed." After discussing these specific challenges, the Board, on of the FDO, concluded as follows: The Board determines Petitioners have met their burden of proving the County's failure to provide the necessary measures to protect the Chuckanut Wildlife Corridor and Lake Whatcom's water resources as required by RCW.0A00()(c)(iv). In their Objections to a Finding of Compliance, Petitioners Hirst, et al. attempt to vastly increase the scope of this challenge by arguing water quality issues that were never argued or addressed by the Board in the original proceedings. Hirst Objections, pp. -. What began as a proper challenge to the RRDO and the RRA zoning in the Lake Whatcom Watershed adopted by Ordinance No. -0 has not just morphed into an improper, expanded challenge to the Page Grand Ave., Suite 1 (0) -; fax. (0) -

26 1 County's measures to protect Lake Whatcom against development that pre-existed Ordinance No. -0, it has even further improperly morphed into a global challenge to the County's protection of water resources throughout the county. The only issue properly before the Board now is the issue raised by Petitioners regarding the RRDO and the RRA zoning. The Board's concerns were based on testimony by Steve Hood from the Department of Ecology that the RR zoning allowance of % impervious surface and RRDO allowance of smaller lot sizes "cannot be effectively mitigated under current regulations." Rather than attempting to make application of the RRDO in the Lake Whatcom area contingent on adoption of more protective development standards, the County, in its adoption of Ordinance No. 1-0 opted to remove the application of the RRDO entirely from 1 the Lake Whatcom Watershed. Even more significantly, the County has now downzoned all of the remaining RA areas in the Lake Whatcom Watershed which were found to be compliant in Futurewise v. Whatcom County, WWGMHB Case No , Order Following Remand from the Supreme Court 1 (//), and has rezoned all of the RRA areas in the watershed to a density ofra. With the 1 removal of the RRA zoning in Ordinance No. 1-0, no more than % of a new building 1 site can be impervious surface pursuant to WCC.1.0(), and all new lots will be at least acres in size. This satisfies the concerns expressed by Steve Hood and there is no evidence in the record that the development allowed by this ordinance would have any negative consequences on the water quality of Lake Whatcom. 1 It should not go unnoticed that neither the Department 0 I The Board also mentioned the possibility of the County restricting exempt wells in the area. Unless the Department of Ecology takes action to close a basin, the County has no authority to restrict such wells as they are permitted under state law. The County cannot prohibit what state law allows without running afoul of the state constitution. Reponse to Objections Page Grand Ave., Suite 1 (0) -; fax. (0) -

27 Ecology or the City of Bellingham offered any testimony to the contrary, and the City of Bellingham is not challenging a finding of compliance on this issue, or any other issue. As for the issues regarding the Chuckanut Wildlife Corridor, the County has downzoned the RA land in the corridor to RA. While this doesn't employ the acre densities espoused in the WDFW report, it more than doubles the minimum lot size that has been permitted for decades. With the adoption of Ordinance No. 1-0, percent of the corridor now lies within RA zoning, while the remaining percent is zoned Commercial Forestry, Rural Forestry (which has a -acre minimum lot size), or Recreation Open Space. Contrary to the FDO, Ordinance No. -0 did not adopt RA zoning for that area. FDO, p. 1, line. That zoning had been in existence for many years and it was beyond the Board's jurisdiction to even address it. In fact, the Board had specifically approved this zoning in its earlier ruling pertaining to the rural densities. Futurewise v. Whatcom County, Case No , Order Following Remand from the Supreme Court (//). This portion of the Board's decision is in direct conflict with the Board's statement that it "will not consider challenges based on portions of the County's development regulations that were not amended." FDO, p. 1, line -. Jurisdictional arguments cannot be waived and can be raised at any point in the proceedings. Moreover, through the adoption of Ordinance No. 1-0, the County adopted in its CP (Policy DD-.C.1) the requisite protective measures for this critical area through its In addition, the Board was under the mistaken impression that the Lake Whatcom Subdivision moratorium was lifted with the adoption of Ordinance No. -0. On July,1, the Council adopted its sixteenth successive six-month interim moratorium on the acceptance of new applications for divisions ofland resulting in lots smaller than five acres within the Lake Whatcom Watershed. Ordinance No This ordinance will be effective until late January,. The County requests that the Board, pursuant to WAC -0-0, take official notice of this ordinance. In addition, copies of this ordinance and the code provisions and WACs referred to in this response are included in Appendix A. While the full texts of some of the county enactments have not been included, they can be viewed in their entirety on the County's website ( Page Grand Ave., Suite 1 (0) -; fax. (0) -

28 1 incorporation by reference of WCC 1.1, the Whatcom County Critical Areas Ordinance (CAO). Ex. R-0A, p. 1. This comprehensive ordinance was adopted in 0 specifically to provide the protection required by the GMA for habitat areas like this and it was not challenged, even by Futurewise. As the Board previously recognized, this proceeding cannot be a collateral attack on the CAO. Under the CAO, all applications for development in this area shall be subject to review on a case-by-case basis. WCC If the administrator has information that habitat will be impacted by development, then a site assessment or a habitat managem nt plan is required. WCC If it is determined that development activities adversely affect habitat conservation areas such as this, mitigation sufficient to achieve no net loss 0 habitat function and values is required. WCC In addition to the specific authority to require a wildlife assessment under WCC 1.1.0, WCC 1.1..B. also provides that: Alteration of critical areas and/or buffers is prohibited except when:. Alteration is part of an essential element of an activity allowed by this chapter and all feasible measures to avoid and minimize impacts have been employed. Such feasible measures shall include, but not be limited to, clustering where permitted by zoning and as appropriate to protecf critical areas. The purposes of clustering shall be to minimize ad 'Verse effects of development on critical area functions and values, minimize land clearing, maintain soil stability, preserve native vegetation, maintain hydrology, and mitigate risk to life and property; (Emphasis added.) With the decreased zoning and the protection of the GMA compliant CAO, Whatcom County has adequately protected this area. Nowhere in the GMA does it require the extreme approach advocated by the Petitioners. This is but one instance in which the Petitioners ask the Board to make the County's policy choices rather than determining whether the County's actions comply with GMA's requirement that protective measures be included in the CP rural element. c. Other Comprehensive Plan Issues Page Grand Ave., Suite 1 (0) -; fax. (0) -

29 The CP's Rural Character narrative does not violate GMA Futurewise separates out the Rural Character Narrative of the CP as a separate item requiring independent compliance with the GMA. Futurewise Objections, p.. However, the GMA does not require that a specific narrative be included to define rural character. Instead, RCW.0A.00 requires the CP include a "plan, scheme or design" for various elements, including the Rural Element. The narrative is part of Whatcom County's Rural Element and CP, but is not the entire plan, scheme or design for GMA purposes. The Board's original criticism of Whatcom County's narrative was that there was not specific enough descriptions to "determine what is allowed as "rural vs. urban". FDO, p.. Through the new Ordinance, Whatcom County expanded on their description to correct this and succeeded. The Petitioners' argument attempts to discredit the Rural Element by claiming it does not accurately describe Whatcom County's rural character, by pointing to a few specific phrases. The Petitioners claim that in many rural areas the agriculture is not small scale. The Petitioners also claim that the narrative mentions both and acre lots, but ignores the fact there are some lots over 0 acres in the rural area. Futurewise Objections, p.. Neither one of these claims have merit. A careful look at the language shows that the narrative clearly recognizes the presence of agriculture by saying "[W]hile agriculture and forestry are practiced in the rural areas it is generally on a smaller scale than in the resource areas that are set aside specifically for those purposes." Ex.R-0A, p.. The word "generally" clearly notes that not all agriculture and forestry are on a smaller scale. Likewise, when discussing the and acre lots Whatcom County states "[R] esidential densities vary greatly from homes on or acre lots to lots smaller than one acre in the rural communities and neighborhoods that have been established over the years." Id at. The Page Grand Ave., Suite 1 (0) -,' fax. (0) -

30 reference to acreage is clearly in the context of residential densities and not ignoring the fact some areas have larger size parcels. Petitioners also claim the bullet points summarizing the policies of the Rural Element omit a citation to protecting ground water resources. There is no specific requirement that this be mentioned as a separate bullet point in the narrative. Whatcom County intends to protect ground water resources within the context of its listed bullet points, such as preserving traditional lifestyles and enhancing the rural sense of community and the quality of life. Id at. The Petitioners' argument is incorrect and fails. Whatcom County's statements are correct when considering the Rural area as a whole. Petitioners' claim that the narrative fails to comply with the GMA is unsupported and fails. There is no requirement in the GMA to limit the location of Type II and III LAMIRDs to specific areas. Petitioner Futurewise argues that the County is in violation of the GMA because the CP does not limit where Rural Tourism designations (Type II LAMIRDs) or Rural Business designations (Type III LAMIRDs) can be located in the rural area. The GMA provides the tools to counties to establish these designations and the controls are built in to the requirements in the statute. The County is unaware of any provision in the GMA that places limits on where such LAMIRDs can be located in the rural area and Futurewise fails to cite any authority supporting this contention. In discussing locational criteria for Type III LAMIRDs, Futurewise appears to be re-arguing the sufficiency of the policy pertaining to the requirement for isolation that was specifically upheld as compliant in the FDO. FDO, p. 0, lines -. The CP and zoning code provi ion relating to the Rural Tourism designation (Type II LAMIRDs) allow only for small-scale development. Page 0 Grand Ave., Suite 1 (0) -; fax. (0) -

31 Futurewise goes on to argue that the CP provisions regarding the Rural Tourism 1 designation allow for large scale development. This argument is completely unfounded. The only zoning district that can exist in this designation, Tourist Commercial (WCC.), specifically requires that all uses, permitted or conditional, must be consistent with the Comprehensive Plan's policies governing uses in Rural Tourism areas in order to be allowed in the Rural Tourism designation. Ex. R-0B, pp., 0 (WCC..00; WCC..0). It is important to point out that, in order to establish a Rural Tourism designation, a property owner must apply for a CP amendment and meet the CP criteria, which mirrors precisely the GMA requirements for such designations. In addition, the property must be rezoned to TC. follows: CP Policy HH-, Rural Tourism (Type II LAMIRD) designation criteria, provides as A. Location Criteria. Rural Tourism may be designated on land that: 1. Consists of one lot, or more than one lot, and. Is not currently designated by the comprehensive plan as Urban Growth Areas (UGAs) or Resource lands, and. Is characterized by the intensification of development on lots containing, or new development of, small-scale recreational or tourist uses, including commercial facilities to serve those uses, that rely on a rural location and setting, but that do not include new residential development, other than a dwelling unit accessory to the business for use by the owner-manager or caretaker.. Does not exceed acres. B. Additional Criteria. The following serve as additional criteria for Rural Tourism designation: 1. The area may include pre-existing residential development, but not new (except for dwelling units accessory to the business for use by the owner-manager or caretaker), and Grand Ave., Suite 1 Page 1 (0) -, fax. (0) -

32 The area may serve more than the local existing & projected rural population, and. Public services and public facilities shall be limited to those necessary to serve the recreation or tourist use and shall be provided in a manner that does not permit low-density sprawl. Ex. R-0A, pp. -. In short, any proposed use within this designation must meet the requirements of RCW. 0A.00()( d)(ii). A property owner's request for a CP amendment establishing a new Rural Tourism designation must first be docketed by the County Council in a public meeting, and, then, if it is docketed, it is subject to review before the Planning Commission, where a public hearing is held, and then by the County Council. The County Council mayor may not have another public hearing. See, WCC.. Finally, any decision to amend the CP is subject to review by this Board. This was the process followed by Caitac in its request for this designation, a matter that was subsequently appealed to this Board. County, GMHB No c. Futurewise and City of Bellingham v. Whatcom As in the Caitac case, the Planning Commission and the County Council, in an open, public forum, must decide whether a proposed use is small-scale. The designation criteria and the zoning code now set a maximum size for such a designation at acres, but in no way allows the use to rise to the levels argued by Futurewise. Futurewise seems to completely overlook the fact that the use must be small-scale and property owners are not free to avail themselves of the maximum development potential in these zones. The TC zone can also be located in UGAs where it can fully develop to the levels allowed in the zoning district. This is not true when they are in a Rural Tourism designation. There, new tourist commercial uses must be established through a rezone and CP amendment, where the uses must be held to the small-scale standard, Page Grand Ave., Suite 1 (0) -; fax. (0) -

33 and this determination is made in an open, public setting. The development described by 1 Futurewise in the Semiahmoo Resort area, which is located in the City of Blaine, is not small- scale by any stretch of the imagination. It is clear that large scale developments can occur on relatively small parcels of land in Urban Growth Areas, but those developments are not restricted by the requirements of RCW.0A.00()(d)(ii) as any development in the County's Rural Tourism designation very clearly is. The acre size limitation for Rural Tourism designations is consistent with prior Board decisions. For instance, Whitaker v. Grant County, EWGMHB No , Second Order on Compliance (10) included a acre Type II LAMIRD found to be compliant. In addition, this Board considered reliance on a rural setting in the context of a proposed Type II 1 LAMIRD at WaWa Point in Jefferson County. Better Brinson Coalition v. Jefferson County, WWGMHB No , Amended FDO (//0). The WaWa Point LAMIRD was. acres and included an RV Park, a grocery store, a general store, a boat launch, a camping area, and contained undeveloped land for more development. The P provisions for the Rural Business designation (Type ill LAMIRDs) limit deyclopment on lots containing isolated nonresidential uses to the "intensification of development." Futurewise also complains that the Rural Business designation (Type III LAMIRDs) descriptor, which by its very terms is intended to be general in nature, does not limit development on lots containing isolated nonresidential uses to the "intensification 0 development," a term undefined by the GMA. Ex. R-0A, p.. The descriptor specifically notes that, "Policies on the definition and locational criteria for Rural Business designations are found under Goals HH and LL in this chapter." Ex. R-0A, p. 1. In Policy LL-l, the CP requires that all lands designated as Rural Business meet the designation criteria and the Page Grand Ave., Suite 1 (0) -; fax. (0) -

34 1 requirements of RCW.0A.00()(d)(iii), specifically including the language of the statute pertaining to the "intensification of development." Ex. R-0A, p.. Moreover, to carry this out, the zoning code limits the expansion of existing nonresidential uses to building sizes no greater than 000 square feet, unless it is within the Birch Bay-LyndenlI- Rural Business LAMIRD. The Rural Neighborhood designation contains and controls the application of the RRDO. Futurewise next argues that the County has not established sufficient measures to "contain and control" the application of the RRDO. It begins its discussion by stating, "We appreciate many of these provisions, particularly the commitment not to expand Rural Neighborhoods beyond those adopted in 1, although as will be documented below the Rural 1 Neighborhoods were substantially expanded in 1 over." In fact, the Rural Neighborhood designation did not even exist In ; the Petitioner fails to explain how something that did not exist has been expanded. Futurewise continues on to argue that there is a violation of the GMA because the RRDO zoning regulations are more detailed than the criteria in the CP. There is no allegation that the CP and the DRs are inconsistent, but rather the objection is to the difference in detail. To the County's knowledge, there is nothing in the GMA that requires that the CP contain all of the detail of the DRs. D. Development Regulations The County's amended development regulations applicable to Type 1, II. and ill LAMIRDs comply with the requirements of the GMA. While the regulation of uses in LAMIRDs is a daunting task at best, the regulatory scheme adopted by Whatcom County is well-defined and offers predictability to property Page Grand Ave., Suite 1 (0) -; fax. (0) -

35 1 owners. Moreover, it meets all of the concerns expressed by the Board in the FDO. The newly adopted code provisions ensure that all of the uses in each type of LAMIRD comply with the statutory requirements of RCW.0A.00()(d)(i-iv). In analyzing the code requirements pertaining to these areas, one must keep in mind that these are areas that are not "rural growth" because of the intensification requirement. City of Anacortes, et al., v. Skagit County, WWGMHGB No c, FDO, p. (//01). Prior to discussing the County's new DRs, it is important to emphasize that these zoning provisions were adopted to regulate development in LAMIRDs-not in the rural areas. LAMIRDs are not rural with respect to the intensity of development allowed, and development within LAMIRDs is not required to be consistent with the rural character of the County. Instead, they are areas where more intensive development may occur, provided that it is consistent with the character of the LAMIRD itself, as it existed in 10. As the Board stated in 00 Friends oj Washington v. Thurston County, Compliance Order-LAMIRDs and Lot Aggregation, p. (1/0): Limited areas of more intensive residential rural development (LAMIRDs) may form part of the rural element of a comprehensive plan but are an exception to the usual densities and intensities for which the rural lands ar intended. In general, rural densities and intensities allow sufficient land so that (among other things) open space, the natural landscape, and vegetation predominate over the built environment. Residential LAMIRDs are al lowed to recognize historic (as of 10) more intensive areas of rural development in the rural area; however, such LAMIRDs are subject to requirements to contain growth and limit future development precisely because they are often developed at densities and intensities that would constitute "low-density sprawl" if they were not limited and contained. Clearly, the GMA does not require that the same standards to ensure that open space, the natural landscape, and vegetation predominate over the built environment be in place for LAMIRDs, as it requires for the rest of the rural area. DRs in Rural Community Designation (Type I LAMIRDs) Grand Ave., Suite 1 Page (0) -; fax. (0) -

36 Preliminarily, it is important to remember that the GMA does not limit Type I LAMIRDs to only those uses that were in existence in 10. As the Board recognized at p. of the FDO in this case, the purpose of LAMIRDs is not to freeze development in time as of 10 but rather to recognize the needs of existing areas and uses. "Uses" is one of several descriptors the statute uses to define the character of the area. Dry Creek Coalition and Futurewise v. Clallam County, WWGMHB No c, Order on Motion for Reconsideration, p. (//0). Consistent with this, in a subsequent case, Dry Creek Coalition v. Clallam County, WWGMHB No , FDO, p. (/0), the Board noted that: The statute's use of the term "or" rather than "and" appears to indicate a Legislative determination that the factors of building size, scale, use or intensity are ones that may be considered in determining the character of the existing area, but that development is not required to meet everyone of those parameters. If the Legislature intended to use the word "and" in the statute, they clearly could have done so. Petitioners Hirst, et al. first argue that the Residential Rural (RR) zone is noncompliant because it permits lots as small as 1/ acre regardless of the character and intensity of use in 10, and further complains about certain uses. Hirst Objections, p. -0. The problem with this argument is that there was no finding in the FDO that this was not compliant with the GMA and 1 it therefore cannot be raised now. In fact, the Board' specifically stated that RR "may be designated in Rural or Rural Communities (LAMIRD Type I) and the uses in it are in compliance with GMA." FDO, p.. The only concern expressed by the Board regarding the RR zone was its allowance of "twice the impervious surface as under former regulations; this is accomplished by including the RR-A zone in this district which allows % impervious surface, not %." FDO, p.. The Board's concerns related to the presence of RRA zoning in the Lake Whatcom Watershed and Ordinance No. 1-0 has rezoned all of that property to Page Grand Ave., Suite 1 (0) -; fax. (0) -

37 RA. The argument of Petitioners Hirst, et al. on the residential uses allowed in Type I LAMIRDs zoned Resort Commercial (RC)(WCC.) also go beyond the scope of this hearing. Hirst Objections, p.. The section of the code that Petitioners complains about was not found out of compliance by the Board. Petitioners Hirst, et al. next challenge the nonresidential uses allowed in the Rural Community designation (Type I LAMIRDs). This designation can include property zoned as Rural General Commercial (RGC) (WCC.), Neighborhood Commercial (NC)(WCC.0), Small Town Commercial (STC)(WCC.1), Tourist Commercial (TC)(WCC.), Resort Commercial (RC)(WCC.), General Manufacturing (GM)(WCC.), or Rural Industrial - Manufacturing (RIM)(WCC.). All permitted, conditional, and administrative approval uses are prefaced with language that states that, in order to exist in a Rural Community designation, the nonresidential uses must be of the same type that existed in that same Rural Community designation on July 1, 10 per WCC.0.0(1). Petitioners' hyperbolic assertion that there are "no effective constraints on development in Type I LAMIRDs" defies logic. Contrary to Petitioners' assertions, the County's zoning does in fact limit uses in Type 1 LAMIRDs to the type of use, size, and intensity that existed as Again GMA does not restrict development to the exact use that existed in 10. Before working on the regulatory changes to the zoning code pertaining to the Rural Community designation, staff compiled a list of the uses and building sizes that actually existed in these areas on July 1, 10. Ex. R-0D (LAMIRD Report, Appendix F). The uses were then grouped into categories in each zoning district based on the general type of use. Turning to WCC (1), one finds a table that shows the types of uses that existed in each Rural Community on July 1, 10, the maximum floor area of the largest building of Page Grand Ave., Suite 1 (0) -; fax. (0) -

38 each type of use in each Rural Community, and the maximum combined floor area of all buildings in each type of use in each Rural Community. For example, in the Smith and Guide Rural Community, the table tells us that there was an Auto/Equipment Repair business in that LAMIRD on July 1, 10 and the largest building containing that use was,00 square feet. The largest scale of that type of use is reflected in the square footage in parenthesis. In the Smith and Guide Rural Community, there was an Auto/Equipment Repair business that had more than one building and the total square footage of all buildings was 1,0 square feet. WCC.0.0(1) permits new businesses of that type up to the size and scale of the largest Auto/Equipment Repair that existed within the boundaries of that specific LAMIRD on July 1, 10. In short, uses are permitted that are of the same general type, same size, and same scale as those that existed on July 1,10. Some of the categories of uses in the zoning districts were combined with each other in the table based on the similarity of the use and/or its intensity (i.e., its potential impact on surrounding uses). In Dry Creek Coalition and Futurewise v. Clallam County, WWGMHB No c (Order on Dry Creek Coalition's Motion for Reconsideration and Motion to Amend Schedule, //01, p. 1), the Board recognized the similarity of intensity between different uses: The commercial uses to which Petitioner objects, are not dissimilar to the health clinic, which it finds appropriate or a grocery store or tavern, in terms of the uses' appropriateness for a rural area. DCC's argument in its briefing stated that the allowed uses would be more intensive, but failed to support this assertion with anything more than an argument that they are different than those uses existing in 10. Although these uses may be different, the Board wonders how a retail store is more intensive than timber harvesting or how is a veterinarian clinic more intensive than a tavern. Do they generate more traffic or noise: Do they demand more resources from the community? What DCC does assert is that these uses would conflict with the rural character of the area. But, pursuant to RCW Grand Ave., Suite 1 Page (0) -; fax. (0) -

39 1.0A.00()(d)(i)(A), a LAMIRD is not required to assure visual compatibility with the surrounding rural areas. What the redevelopment of a LAMIRD is required to do is to be consistent with the character of the LAMIRD itself. The argument of Petitioners Hirst, et al. is strikingly similar to the unsuccessful argument of DCC in the above-cited case. It is not enough to simply assert that these uses are on their face different. While the use may be different (for example, a restaurant can exist now where a grocery store existed in 10), the code requires that the size and the intensity of the allowed current use be the same as the 10 use. By restricting current uses to the size and intensity 0 _ 10 uses, the character of the area will be maintained even though the uses will be different on their face. Reviewing the categories in the table, one can readily see that the County has grouped 1 together categories of uses based on their intensity or impact to the surrounding area. For example, one category with higher impacts is Auto/Equipment Repair and another IS Manufacturing/Fabrication. This is in contrast to lower impact categories such as 1 Storage/Warehouse and RetailiOffice/Restaurant/Lodging. Again, with their objections on the 1 specifics of County's use categorization scheme, the Petitioners ask the Board to revise the County's policy choices. 1 Petitioners Hirst et al. incorrectly argue that the DRs do not limit uses to the type hat existed within a particular Rural Community (Type I LAMIRD) but instead the same use is allowed in the same zoning district across all Rural Community designations. The Petitioners take the phrase "in that same Rural Community designation" out of context. F or example, WCC..00 states, "In a Rural Community designation, nonresidential uses listed below are permitted if a use of the same type existed in that same Rural Community designation on July 1, Page Grand Ave., Suite 1 (0) -; fax. (0) -

40 , per WCC.0.0(1)". Reference to the singular In a RW'al ommul1ity designation together with "in that same Rural Community d signati n' makes it clear the us s are limited t that particular area, not all Rural Community designations countywide. Despit th Petiti ners (Hirst Objections, p. 1) unsupported statements that 'designation usually refers to z ning in fact "zone" or "district" is typically used) and the County "must have intended to include all uses in all similar zoning designations across the County" because it did not heed the Petitioners' wording advice, Petitioner Futurewise apparently had no difficulty interpreting the correct meaning of this phrase (Futurewise Objections, p. ). WCC.0.0() allows for a property owner to come forward with proof that the County missed a use that existed in a Rural Community when it compiled its list of 10 uses. As a practical matter, it is a significant challenge for the County to determine with certainty every use that existed in these areas as of 10. This section simply allows for the County to correct a mistake and amend the table if this previously undetected use is not currently allowed in that specific Rural Community in the table or if the size of the previously undetected use is larger than the table reflects. Under WCC.0.0()(b), a development or redevelopment that does not fit within the table and therefore is not allowable as a permitted use, may apply for an administrative approval use. In order to obtain approval through this process, the applicant must show that the proposed development is consistent with the 10 character of the particular Rural Community it is located in. In order to obtain approval for such modifications, there must be a finding that:... the development or redevelopment is consistent with the character of the area on July 1, 10 considering the parameters listed below, though the development or redevelopment need not meet everyone of those parameters: (1) Building size, referring to the floor area of the largest building, Grand Ave., Suite 1 Page 0 (0) -; fax. (0) -

41 () Scale, referring to the combined floor area of all buildings, () Use, referring to whether the proposed use in included in the type 0 use existing on July 1, 10 in the area, or ( ) Intensity, referring to potential adverse impacts on surrounding properties that did not exist on July 1, 10. It is significant that the very language that the Petitioners complain about in this section was the Board's language in Dry Creek Coalition v. Clallam County, WWGMHB No , FDO, p. (/0). Furthermore, to suggest that this provision allows a particular use of "any size" is extremely misleading. Size is certainly going to be limited by the requirement that any use that is allowed must be consistent with the character of the particular Rural Community as it existed on July 1, 10. The Petitioners criticize the administrative approval process and imply that the County 1 cannot be trusted to follow its own regulations. First, the administrative approval process requires notice to all property owners within 00 feet of the development as well as posting 0 public notice on all road frontages of the property "visible to adjacent property owners and to passing motorists." There is a day comment period and any person who has submitted a written response to the proposal has a right to appeal the decision of the administrator to the hearing examiner. WCC... Additionally, the Board has repeatedly declined to assume that local government will elect to act unlawfully. Instead, the Board will assume that prospective governmental actions will be taken in good faith in an effort to comply with the Act. Regional Transit Authority v. City of Tukwila, CPSGMHB No , FDO, p. (1). The Petitioners also argue that the County has failed to comply with RCW.0A.00()(d)(i)(B) as the amendments adopted in Ordinance No. 1-0 do not require that commercial development be principally designed to serve the existing and projected rural Page 1 Grand Ave., Suite 1 (0) -; fax. (0) -

42 population. First, the County is unaware that this was a basis for the Board's findings of noncompliance in the FDO. However, even if it was, that provision requires development in these areas to be "principally" designed to serve the existing and projected rural population; there is not requirement that it "exclusively" serve that population. While certain tourist type uses are allowed in Rural Communities consistent with the 10 built environment, the predominantly allowed uses clearly serve the existing and projected rural population. See, Dry Creek Coalition v. Clallam County, WWGMHB No , FDO, p. -1 (/1/0). DRs in Rural Tourism Designation (Type II LAMIRDs) See discussion above, pp. -. DRs in Rural Business Designation (Type III LAMIRDs) Petitioners Hirst, et al. incorrectly argue that the County did not appropriately limit "uses" in the zones located within Rural Business designations (Type III LAMIRDs). The Board, however, in its FDO neither invalidated nor found the uses allowed in Type III LAMIRDs to be noncompliant with the GMA. In Ordinance No. 1-0 Whatcom County did not revise its zoning code with regard to uses allowed in Rural Business designations and consequently no argument can be made at this time that the uses allowed in this designation are noncompliant. The zoning code amendments adopted by Ordinance No. 1-0 allow new small-scale businesses under,000 square feet to be permitted outright in all areas except Birch Bay where new small-scale businesses can be no greater than 1,000 square feet. Looking at the size of existing businesses in Type III LAMIRDs included in Appendix G to the LAMIRD Report, these limitations make sense. Ex. R-0E. In addition, larger small-scale businesses may be Page Grand Ave., Suite 1 (0) -,' fax. (0) -

43 1 1 conditionally permitted if they meet specific criteria consistent with the GMA..0.0() addresses the requirements for the Rural Business designations as follows: Ex. R-0B, pp. -. WCC () Within areas designated in the Comprehensive Plan as Rural Business, which are Limited Areas of More Intensive Development as described in RCW.0A.00()(d)(iii), new non residential uses are subject to a maximum building size of,000 square feet, except in the Birch Bay Lynden&I- area where new non residential uses are subject to a maximum building size of 1,000 square feet, which is considered "smallscale relative to existing uses in that area. For nonresidential uses that existed on July 1,1, building size expansion to,000 square feet is permitted, except in the Birch Bay-Lynden&I- area, where building size no greater than,000 square feet is permitted. () Within a Rural Business designation, a larger building size for new nonresidential development is permitted if a conditional use permit is granted per WCC..0. A conditional use permit for a larger building size shall be subject to a finding that: (a) The larger building size will not cause the need for additional public facilities to be provided in the area, (b) The proposal is consistent with the Comprehensive Plan policies regarding the Rural Business designation, and (c) The proposed small-scale business conforms to the rural character to the area Petitioners devote significant discussion to the meanmg of "intensification" of development of existing nonresidential uses in the Rural Business designation. This term is undefined in the GMA, but the legislative findings relating to rural lands found in RCW.0A.Oll offer direct insight into the legislative intent. That provision provides, in pertinent part, as follows: The legislature finds that to retain and enhance the job base in rural areas, rural counties must have flexibility to create opportunities for business development. Further, the legislature finds that rural counties must have the flexibility to retain existing businesses and allow them to expand. The legislature recognizes that not all business developments in rural counties require an urban level of services; and that many businesses in rural areas fit within the definition of rural character identified by the local planning unit. (Emphasis added.) Grand Ave., Suite J Page (0) -; fax. (0) -

44 There is absolutely no support for Petitioners' suggestion that the legislature intended to use the term in the narrow way that the courts use the term in reference to nonconforming uses which are disfavored by the law. These existing business uses are not disfavored-in fact, the legislature specifically recognized the need to allow such businesses to expand. Restricting the expansion of existing businesses to,000 square feet (except in the Birch Bay-Lynden&I- area where the limitation is,000 square feet) is reasonable, and is consistent with this legislative finding. As for the allowance for new small-scale businesses larger than 000 square feet through a conditional use process, Petitioners' example of property owners across the street from the Birch Bay-Lynden&I- arguing that the rural character oftheir area includes 0,000 square foot buildings does not have credence as not only must Type III LAMIRDs be isolated from one another, they are ignoring the explicit requirement that the use be "small-scale." Even within the Birch Bay-Lynden&I- area, the code specifically indicates that 1,000 square feet is considered to be "small-scale." Finally, the conditional use process includes substantial public notice and allows any interested parties to submit evidence in the context of the public hearing. WCC In addition, those who participate and become parties of record can appeal the decision to the County Council. WCC... With regard to building sizes allowed in the Birch Bay-Lynden&I- Type III LAMIRD, Petitioners ignore the existing character of this area. The 1,000 square foot limitation for new uses and,000 square foot limitation for the expansion of existing uses within the Rural Business designated Birch Bay - Lynden&I- area, comports with the rural character of the area and enables intensification of development. Reponse to Objections Page Grand Ave., Suite 1 (0) -; fax. (0) -

45 First, new development of isolated "small-scale" businesses is allowed pursuant to RCW.0A.00()(d)(iii). Since the GMA contains no definition of "small-scale," it is up to local jurisdictions to determine what is "small-scale." The 1,000 square foot building size limit established in this area directly reflects the area's rural character since many of the existing buildings in this area exceed 1,000 square feet. Ex. R-0E. Further, the County has described its rural character to include a variety of rural businesses including more intensive commercial and manufacturing uses. Ex. R-0A, p.. Petitioners provide no evidence to contradict the existing rural character of this area, but merely assert that a 1,000 square foot building should not be considered "small-scale" despite its consistency with the rural character of the area. Next, given the size of existing buildings in this area, allowing these existing uses to expand to,000 square feet in building size is similarly consistent with the rural character of the area. As discussed above, the character of the Rural Business designation in the Birch Bay- Lynden&I- area is that of larger buildings on larger parcels. This rural character is acknowledged in both the County's zoning code and Comprehensive Plan. Ex. R-0A, p. ; Ex. R-0B, p. -. Consequently, allowing expansion to,000 square feet for existing buildings is both logical and compliant with rural character. Ex. C-1. Third, the,000 square foot building limitation allows for intensification of development on lots containing non residential uses per RCW.0A.00()(d)(iii). Notably there is no "small-scale" requirement with regard to intensification of existing development; and contrary to Hirst's assertions, nothing therein limits "intensification" to the existing building footprint of a use. In fact, without the allowance for existing uses to increase building size, intensification of development would not likely be able to occur in this area as provided for in RCW.0A.00()(d)(iii). Ex. C-1. Page Grand Ave., Suite 1 (0) -; fax. (0) -

46 ... 1 Moreover, Petitioners would have the Board examine building size in isolation of the County's other development regulations. In examining building sizes in the RIM designated Birch Bay - Lynden II area, not only the existing character of the area, but other developm nt regulations should be considered in determining compliance. For example, the large lot sizes in this area result in a relatively small lot coverage percentage despite the existence of buildings in excess of,000 square feet. Ex. R-0E. Thus, although larger buildings may be allowed in this area, the lot coverage restriction of fifty percent ensures the protection of the existing rural character. Ex. R-0B, p. (WCC..). Other development regulations including setbacks, buffers, height restrictions, etc. further provide for rural character to be maintained. In summary, Ordinance No. 1-0 revised Whatcom County's devejopm nt 1 regulations to comply with the requirements of the GMA. In Type I LAMIRDs, uses are expressly limited to those that are consistent with the character of the area in 10. In Type II LAMIRDs, creation of any new LAMIRD is subject to a finding that the proposed use is consistent with CP policies, which are in turn based upon GMA. In Type III LAMIRDs, uses are restricted to those described in RCW.0A.00()(d)(iii). substantially interfere with GMA goals and are compliant with the GMA. The DRs therefore do not WCC..00() does not allow extension of urban governmental services outside the urban growth area in violation ofrcw.0a.ll0() or.00(d). As stated and argued throughout this brief, the hearing on compliance of the County's amendments adopted in Ordinance No. 1-0 are limited to actions taken as part of the Board's FDO. Petitioner Futurewise argued in its initial challenge that WCC..00() and () allowed expansion of sewer without measures required by RCW.0A.ll0() or.00()(d). (FDO at -). The Board rejected Futurewise's argument as to WCC..00() and Page Grand Ave., Suite 1 (0) -; fax. (0) -

47 ()(d) because Futurewise failed to raise these issue in its Petition for Review. FDO, at fn and. Nevertheless, Futurewise (and now Petitioners Hirst, et al.) once more inject arguments pertaining to WCC..00(), this time into its Objection to Compliance Finding. The Board should again find that this code section is not part of Futurewise's Petition for Review, no Board finding or order was made on WCC..00(), and therefore, this section's compliance with GMA is beyond the Board's FDO. Furthermore, WCC..00() does not allow extension of urban governmental service outside ofa UGA in violation ofrcw.0a.ii0() or.00()(d). Whatcom County amended WCC..00() as follows with additions underlined: () New sevier and/or water lines with an inside diameter greater than eight inches except for new sewer and/or water lines in conformance with a state approved water comprehensive plan and consistent with the Whatcom County Comprehensive Plan, which shall be permitted outright so long as they are water transmission lines or are located and installed by a public utility or municipality within urban growth areas, LAMIRDs, or Rural Neighborhoods. and in conformance with a state approved sewer and/or "vater comprehensive plan and consistent with the Whatcom County ComprehensiJle Plan, which shall be permitted outright. Ex. R-0B, p.. Essentially, this regulation requires a conditional use permit for water lines 1 greater than eight inches except for those water lines that are in conformance with state approved 1 water comprehensive plans. If the water lines are outside the UGA, LAMIRDs or Rural Neighborhoods, they must also be water transmission lines. The amendment to WCC..00() addresses the need for water purveyors such as the Birch Bay Water Sewer District (District) to fulfill Washington State Department of Health (Health) approved comprehensive water system plans which allow for large water transmission lines to carry water from a water source to a treatment facility or storage unit. Ex. C- (District comment letter, ). Sometimes these transmission lines must go through rural Page Grand Ave., Suite 1 (0) -; fax. (0) -

48 areas. The District presently has four such transmission lines approved by Health and by 1 Whatcom County as part of its water system plan.!d. The balance of the above amendment was intended to address the absence of any provision for installation of water lines to address "life, health or safety issues" if those lines occur outside a UGA and within LAMIRDs or Rural Neighborhood zoning. Ex. C-1 (City 0 Ferndale comment letter, //1). While the CP allows extensions for environmental, life, health or safety issues, it was important to allow such extensions outright without requiring the purveyor to go through the conditional use permitting process. So, the addition of LAMIRDs and Rural Neighborhoods into this section makes this regulation consistent with the Comprehensive Plan and addresses the practical implications of water purveyors needing to 1 address life, health or safety issues. Compliance with RCW.0A.ll0() Both Petitioners Hirst, et al. and Futurewise argue that the proposed amendment violates the GMA's provision against extending urban services into rural areas except under limited and 1 1 specified circumstances. RCW.0A. 0(). (Hirst Objection, p. and Futurewise Objection, p. ). Water systems unlike sewer systems are not by definition an urban 1 governmental service and can be characterized as a "rural governmental service". Futurewise Policy Q-: Where necessary, to protect public health or the environment, utility extensions may be made. In general, cities are the units of local government most appropriate to provide urban governmental services. In general, it is not appropriate that urban governmental services be extended to or expanded in rural areas except in those limited circumstances shown to be necessary to protect basic public health and safety and the environment and when such services are financially supportable at rural densities and do not permit urban development. RCW.0A.IlO(). "Rural governmental services" or "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, transportation and public transit services, and other public utilities Page Grand Ave., Suite 1 (0) -; fax. (0) -

49 cites to Larz T. Anderson, Planning the Built Environment p. (APA, Chicago Ill.: 00) for the proposition that an eight inch water line or greater is historically and typically provided in cities. Futurewise Objections, p., fn. 0. This document suggests "design guidelines for central water supply systems" which state that street mains should be greater than " in diameter and a branch water mains should be greater than " in diameter. Id. A design guideline which has not been shown to be adopted in Washington can hardly be viewed as evidence that an eight inch line is an urban governmental service. In reliance on subsection WCC..00(C)(), Petitioners Hirst, et al. suggest that property owners must connect to public water systems with transmission lines adjacent to the property line of the applicant. This code section, however, must be read in the context of the entire chapter of WCC. which adopts definitions from state rules. Whatcom County adopts by reference WAC 1- (rules applicable to wells), - (group A system rules) and - 1 (group B system rules) in WCC.. WCC..00(A). Furthermore, the definitions within WCC. and the definitions in WAC - apply to this chapter. WCC..00. Since there is no definition of "transmission line" within WCC., the definitions adopted by the County from the WAC govern. WAC :'-0 () defines a transmission line as follows: "Transmission line" means pipes used to convey water from source, storage, or treatment facilities to points of distribution or distribution mains, and from source facilities to treatment or storage facilities. This also can include transmission mains connecting one section of distribution system to another section of distribution system as long as this transmission main is clearly defined on the plans and no service connections are allowed along the transmission main. WAC --0(). associated with rural development and normally not associated with urban areas. Rural services do not include storm or sanitary sewers, except as otherwise authorized by RCW.0A.IIO(). RCW.0A.00(1). Page Grand Ave., Suite 1 (0) -; fax. (0) -

50 This definition of transmission line does not include distribution lines. Petitioners Hirst, et al. speculate that the amended WCC..00() reference to water transmission lines which are "in conformance with a state approved water comprehensive plan" refers to either Whatcom County's Comprehensive Water Resources Plan or Whatcom County's approved Coordinated Water System Plan. Hirst Objections, p.. They either misunderstand the planning obligations of public water systems in the state of Washington or are attempting to create confusion on the subject. Whatcom County's Comprehensive Water Resources Plan addresses broad water resource planning for Whatcom County's water resource inventory area (WRIA 1) under the Watershed Management Act (RCW 0.). It has absolutely nothing to do with sizing of water lines or the planning requirements of public water systems. Indeed, Whatcom County does not own or operate a public water system for which planning is required under WAC --0. The Whatcom County Coordinated Water System Plan (WCCWSP) was approved by 1 Health in accordance with RCW 0. and WAC This WCCWSP reflects 1 1 service areas, expansion of service areas, and recognizes that public water purveyors must adopt water system plans. WCCWSP, p. -, -, - and -. Purveyors within the County must follow the WCCWSP. RCW 0..00(). The WCCWSP does not establish public water system improvement projects, is not a "comprehensive water system plan," and therefore is obviously not the subject of reference in amended WCC..00(). See WAC --0. WCC..00()'s reference to a state approved water comprehensive plan can only mean those water system comprehensive plans required for public water systems, which among other things identify all existing and planned capital facilities for the system including water line Page 0 Grand Ave., Suite 1 (0) -; fax. (0) -

51 SIzes. Comprehensive water system plans must be completed by all public water systems and approved by Health. RCW..; WAC --0. They must include all existing and planned capital facilities of the system. WAC --0. And they must be updated every six () years. WAC --0 () and (). Any public utility or municipality operating a public water system understands this. Also, important in WCC..00(C) is the determination that a public water system is "available and willing to provide water." WCC..00(C). Public water purveyors are only "able and willing to provide water" in conformance with their approved water system plans. For instance, water districts are governed by Title RCW, which requires that the "general comprehensive plan" whether it be water or sewer, "shall not provide for the extension or location of facilities that are inconsistent with the requirements of RCW.0A. 0." RCW.1.0 (). Also, "[b]efore ordering any improvements or submitting to vote any proposition for incurring any indebtedness, the district commissioners shall adopt a general comprehensive plan for the type or types of facilities the district proposes to provide." RCW.1.0. Finally, water district comprehensive water system plans must be approved by the county legislative authority (in addition to the State Department of Health) before it becomes effective. RCW 1.1.0(). Such water system plans "shall not provide for the extension or location 0 facilities that are inconsistent with the requirements ofrcw.0a.1." RCW.1.0(). The County also reviews each such water system plan or amendment thereof for compliance with its own Comprehensive Plan via criteria set forth in RCW.0.00; RCW.1.0(). These decisions are made each time a district water system plan is approved by the County. Page 1 Grand Ave., Suite 1 (0) -; fax. (0) -

52 1 It is well known that Whatcom County is not a water purveyor. Instead, local municipalities, water-sewer districts, water associations operate community public water systems in Whatcom County. These purveyors prepare a water system plan in accordance with WAC --0. See also, RCW... These plans at minimum require review and approval by the Washington Department of Health. WAC --0(). Prior to approval from Health, the plans must be consistent with applicable local comprehensive plans and local development regulations and GMA. RCW... Purveyors including municipal water suppliers are required to transmit their water system plans to adjacent utilities and each local government with jurisdiction to assess consistency with ongoing and adopted planning efforts. WAC --0 (); WAC --(). For municipal water suppliers, if an inconsistency is detected, this must be addressed before Health can approve the water system plan. WAC --(). Any amendment or alteration to a comprehensive water system plan for water and sewer districts are also subject to the same approvals as if it were a new plan. RCW.1.0(). Whatcom County specifically found certain water system plans consistent with its Comprehensive Plan. Goal N: Adopt special district and County capital facility plans for unincorporated UGAs into this plan by reference when consistent with the Whatcom County Comprehensive Plan. CP,Chapter Four, Capital Facilities, pp. -. The County adopted several water system plans including, the Birch Bay Water and Sewer District Comprehensive Water System Plan, Public Utility District No.1, Evergreen Water System Plan, Water District No.. CP Policy N-l, "Purveyor" means an agency, subdivision of the state, municipal corporation, firm, company, mutual or cooperative association, institution, pm1nership, or person or other entity owning or operating a public water system. Purveyor also means the authorized agents of these entities. WAC --0 (). "Public water system" is defined and referenced under WAC --0. WAC --0 (1) Page Grand Ave., Suite 1 (0) -; fax. (0) -

53 N-, N- and N-, pp WCC..00() requires that new water lines with a diameter greater than eight inches must first be in conformance with state approve water comprehensive plan if they are to be permitted outright. Again, this requirement establishes consistency with GMA. RCW... Otherwise, the water system plan would not be approved by the Department of Health or by the County. The time to challenge the State Department of Health's approval or the County's approval of these comprehensive water system plans has long since passed. The use of the term "water transmission line" is defined in the state rule, incorporated into the County Code, and provides assurance that in rural areas what is addressed by WCC..00() are not distribution lines. Water lines greater than eight inches are required to be in conformance with a state approved water system plan because most Group A public water providers (such as cities and water sewer districts) must have a water system plan, reviewed for conformance with RCW.0A.ll0. RCW.1; WAC --0(). The Board should find that permitting water transmission lines so long as consistent with a state approved water comprehensive plan complies with GMA. The balance of the amendment to WCC..00() is also consistent with GMA, but presents different issues and must be analyzed separately. The water lines addressed above, if not in conformance with a state approved water system comprehensive plan, may require a conditional use permit. Conditional use approval means that the approval must be consistent with the Comprehensive Plan and zoning regulations and the rural element if in rural areas. WCC..00. Approval of a conditional use permit requires the following pertinent findings by the Whatcom County Hearing Examiner: (l) Will be harmonious and in accordance with the general and specific objectives of What com County's Comprehensive Plan and zoning regulations. Grand Ave., Suite 1 Page (0) -; fax. (0) -

54 WCC..0. () Will be designed, constructed, operated, and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity, and that such use will not change the essential character of the same area. () If located in a rural area (as designated in the Comprehensive Plan), will be consistent with rural land use policies as designated in the rural lands element of the Comprehensive Plan. Several policies prevent extension of water service at urban levels of service outside urban growth areas: Policy EE-: Ensure county coordination with service providers to determine if new or infill development will have necessary services. Require concurrent review of new development to ensure adequate level of service at rural standards are available at the time of development. Policy EE-: Public services and public facilities necessary for rural commercial and industrial uses shall be provided in a manner that does not permit low-density sprawl. Uses may utilize urban services that previously have been made available to the site. Policy P-: Discourage extension of urban levels of water service to areas not designated as urban growth areas or Rural Communities, except in those limited circumstances shown to be necessary to protect basic public health and safety and the environment and when such services are financially supportable at rural densities and do not permit urban development. Policy Q-: Where necessary, to protect public health or the environment, utility extensions may be made. Ex. R-0A, pp. 1-1; CP, Chapter, Utilities, pp. --. Extensions into the Rural Neighborhood designation is prohibited unless they are necessary for environmental, life, health or safety reason and then only at rural service levels: Rural Neighborhood: Policy MM- Urban governmental services shall not be extended into a Rural Neighborhood unless such extensions are shown to be necessary to protect basic public health and safety and the environment, and when such services are financially supportable at rural densities and do not permit urban development. Grand Ave., Suite 1 Page (0) -; fax. (0) -

55 Ex. R-0A, p.. This policy adopts the requirements for extension of urban governmental services from GMA RCW.0AII0(). Therefore allowing extensions to Rural Neighborhoods in limited circumstances is consistent with GMA Finally, the County has policies which address water lines which serve LAMIRDs. Compliance with RCW. 0A.00(S)( d) Futurewise questions whether LAMIRD requirements for public facilities and services under RCW.0A00()(d) must be met. Futurewise Objection, pp. -. First, several policies ensure that the requirements ofrcw.0a00()(d) must be met for water lines that serve LAMIRDs. Rural Community LAMIRDs are already located where water lines and public services exist to accommodate the designation. The Comprehensive Plan requires that these areas already have public services available, have water lines with capacity to serve that area, and may include an area that is not characterized by the built environment as of July 1, 10 so long as it is consistent with the efficient provision of public facilities and services in a manner that does not permit low density sprawl. R-0A, pp. - (Policy HH-1(B) and (C)). Rural Tourism LAMIRDs must meet the requirements of RCW.0A00()(d)(ii). R-0A, p. (Policy KK-l). This section of GMA provides, "Public services and public facilities shall be limited to those necessary to serve the recreation or tourist use and shall be provided in a mamler that does not permit low-density sprawl". RCW.0A00()(d)(ii). Finally, CP Policy HH- (B)() limits public services to those necessary to serve recreation or tourist use in a manner that does not permit low density sprawl. Rural Business LAMIRDs similarly must meet the requirements of RCW.0A00()(d)(iii). R-0A, p. (Policy LL-l). This section 0 GMA states, "Public services and public facilities shall be limited to those necessary to serve the isolated nonresidential use and shall be provided in a manner that does not permit low-density Page Grand Ave., Suite 1 (0) -; fax. (0) -

56 sprawl;" RCW.0A00()(d)(iii). Therefore, water lines which are not in conformance with state approved water system comprehensive plans will be consistent with RCW.0A00()(d). Second, as previously explained, water system comprehensive plans must be consistent with GMA before Health may approve the plan. So, water lines in conformance with these water system comprehensive plans will also be consistent with RCW.0A00()(d). This Board should find that the Petitioners objections to WCC..00() are outside the scope of the Board's FDO or in the alternative, that WCC..00() complies with RCW.0AII0() and.00()(d). E. LAMIRD Boundaries Smith & Guide In addressing the Board's concerns about the Smith & Guide Meridian LAMIRD, the County created two separate LAMIRDs, Smith & Guide Meridian and Axton and Guide Meridian. The size of the two new LAMIRDs combined is approximately acres, or less than half the size of the original LAMIRD of acres. The Petitioners challenge the inclusion of a property at the northern edge of the commercial node at Smith and Guide Meridian that contained a veterinary clinic in 10 and a acre portion of a property directly south of that property. The property including the veterinary clinic was included because it fell within the logical outer boundary of this node. The veterinary clinic was included to preserve the character of the existing natural community in that area and the undeveloped property is infill permitted by RCW.0A00()(d)(iv). The County followed the two-step process previously described by the Board in establishing its LAMIRDs. 00 Friends of Washington v. Thurston County, Page Grand Ave., Suite 1 (0) -; fax. (0) -

57 WWGMHB No , Compliance Order, p. 1 (/0/0). First, the County identified the built environment of the area of more intensive rural development in place in 10. Second, the County drew the logical outer boundaries around the 10 built environment, considering the statutory factors other than the built environment itself. The LAMIRD boundary adheres to the requirements of GMA and therefore it does not substantially interfere with GMA goals. Birch Bay-Lynden and Valley View Petitioners, Hirst at al. object to the inclusion of a parcel at the southwestern corner of the LAMIRD, which the County retained after the property owner submitted information that was not available to the County in. The County reviewed the information regarding the presence of buildings in 10, and verified it using the County's aerial imagery. In their objection (p. ), they mistakenly refer to a 00 square foot building on the parcel in question, the. acre parcel at the southwest corner of the LAMIRD. The property owner's agent stated in his testimony that the 00 square foot building is a second building on one of the northern parcels, and a different building existed on the southwestern parcel (he estimates the size of the latter building at 1,0 square feet). Ex. C-. aerial imagery shows both buildings existing at the time; the latter building on the southwestern parcel has since been razed. They appear on the County's study maps in Appendix A of the LAMIRD Report (R-0A), which also shows scale and lot lines. The latter building's appearance on the photo is noted in Appendix F. Ex. R-0D. Petitioners Hirst, et al. also attempt to make the case that a LAMIRD I designation must be limited to "the area that was characterized by the built environment." They ignore the word "predominately," and the language in the statute discussing how logical outer boundaries are to be determined in an effort to limit Type I LAMIRDs small, irregular portions of lots. It does not Page Grand Ave., Suite 1 (0) -; fax. (0) -

58 make sense to parse out only the footprint of the previous use on this relatively small lot, particularly given its location at the intersection of two roads. Finally, the assertion by Petitioners Hirst, et al. that anything goes in the RGC zone inside this LAMIRD is also incorrect in light of the adopted DRs that limit development in Type I LAMIRDS to that which is consistent with the character of the area as it existed in July, 10. (See previous discussion, pp. -). Petitioners' arguments should be rejected and the inclusion of the. acre parcel in the LAMIRD should be approved. Fort Bellingham/Marietta, and North Bellingham In addressing these areas, the Petitioners would like the Board to ignore the reality of the high level of existing development in these areas. The Board did not find these LAMIRDs out of compliance because they failed to meet the criteria for Type I LAMIRDs under RCW.0A.00()(d)(i). Instead, the Board, after a brief discussion in which it expressed concern about the level of services required in LAMIRDs where development is allowed at an intensity atypical of most forms of rural development, indicated that such LAMIRDs were contrary to "the County's Policy DD-1 which provides 'Concentrate the majority of growth in urban areas and recognize rural lands are an important transition area between urban areas and resource areas. ", FDO, p.. In adopting Ordinance No. 1-0, the County completely removed the LAMIRD designations from these areas as well as the more intense zoning that the Board's decision focused on. The County downzoned all of the areas formerly zoned as RR-1 and RR- to RRA, with the RRDO. With the RRA zoning, the maximum potential additional lots in the downzoned portion of the Fort Bellingham area is reduced from 1 down to and the Page Grand Ave., Suite 1 (0) -; fax. (0) -

59 maximum potential additional lots in the downzoned portion of the North Bellingham area is reduced from 1 down to. Ex. R-0D, Appendix E. This number is likely less as development constraints imposed by regulations such as the CAO and other site specific limitations have not been factored in. In addition, these areas have been designated as Rural Neighborhoods. As such, they are contained and cannot be expanded beyond their current boundaries, and they cannot receive urban governmental services, as specifically provided in CP Policies MM-1 and MM-. The City of Bellingham supported this resolution for these areas in its comment letter of July, 1: Specifically, we support the County staff recommendations to:. Designate the North Bellingham and Fort Bellingham areas as Rural Neighborhoods rather than as LAMIRDs. We also support staffs proposed rezone of the areas from RR-1 to RR-A to reduce the overall development capacity and thus the resulting impacts on City facilities, especially roads. Ex. C- (July,1 Letter from the City of Bellingham). Furthermore, there is no reason to believe that the objecting Petitioners' continuing concerns about the cities' ability to expand their UGAs are currently shared by the City of Bellingham or the City of Ferndale, the two cities with UGA boundaries adjacent to these areas. This Board has already decided that 1 unit per acre zoning is a valid rural density in Whatcom County. Futurewise v. Whatcom County, Case No , Order Following Remand from the Supreme Court (//). Like everyone of the areas approved for 1 unit per acre zoning in that case, the areas at issue here have current densities greater than one dwelling unit per. acres. In the Fort Bellingham/Marietta area, the average developed parcel Page Grand Ave., Suite 1 (0) -; fax. (0) -

60 size is 1.1 acres in the downzoned area (1. in the overall Rural Neighborhood), and in North Bellingham the average developed parcel size is less than 1 acre in the downzoned area. Ex. R- 0D, Appendix E. With the addition of these areas, RA and RRA zoning together comprise just 1. % of the rural lands in Whatcom County. Ex. R-0 (Presentation to Council, /, slide ). The adopted RRA zoning designation reflects the existing rural landscape in these areas. In both North Bellingham and Fort Bellingham/Marietta, the patterns of more intense residential development have existed for many years. Looking at the maps for both of these areas, one can see that, while some portions of these areas are more intensely developed than others, the entire areas are interspersed with small lot development. Ex. R-0, pp.,. In 0, 1 % of the parcels in Fort Bellingham/Marietta were developed and.% of the parcels were developed in North Bellingham. Ex. R-0D, Appendix E., calculated using totaled acreages for the overlay portions of each area in the "count of parcels" and "count dev. parcels" columns. It is a far stretch, to say the least, for Futurewise to assert that to 0 percent of the state's wildlife will be wiped out by rezoning this already highly developed residential area to RRA zoning. In addition to recognizing the validity of one 1 unit per acre zoning in the remanded portion of Futurewise' original challenge to the Rural Element, this Board approved the RRDO in the FDO in this case in all areas it had been applied except the Lake Whatcom Watershed, including those already existing in these areas. The Board recognized that "the density overlay, Futurewise correctly states that certain portions of the Fort Bellingham/Marietta Rural Neighborhood have developed densities lower than one dwelling per. acres, the criterion from CP Policy MM- (though they cite the figures for 0 all parcels rather than 0 developed parcels). However, the overall developed density of that Rural Neighborhood does meet the density threshold in MM-. Ex. R-0D, Appendix E., calculated using totaled "dev. ac" and "count dev. parcels" acreage figures for the three "overlay" areas in the Ft. BellinghamlMarietta area. Page 0 Grand Ave., Suite 1 (0) -; fax. (0) -

61 potentially allowing for a small number of lots smaller than five acres in size in a total area comprising only 1. percent of all county rural lands, will not lead to the 'inappropriate conversion of undeveloped lands into sprawling, low-density development' if contained by the Comprehensive Plan measures indicated in this order." FDO, p. 1. With the adoption 0 Ordinance No. 1-0, the County has eliminated the LAMIRDs in these areas, thereby reducing the total rural acreage in areas of more intensive rural development by over 1,00 acres and, in the end, only.% of all rural land is subject to the RRDO. Furthermore, it has contained and prevented the expansion of the rural areas with zoning densities greater than 1 unit per acres through the creation of the Rural Neighborhood designation. Prior to this Board's approval of 1 unit per acre zoning III Whatcom County, in Thurston County v. WWGMHB, 1 Wn.d, -0, 10 P.d (0), the Court directly addressed the issue of whether densities greater than one dwelling unit per five acres may be considered rural under the GMA and held that the Board must consider local circumstances in deciding whether such densities are appropriate rural densities under the GMA: The legislature did not specifically define what constitutes a rural density. Instead, it provided local governments with general guidelines for designating rural densities. A rural density is "not characterized by "urban growth" and is "consistent with rural character." Former RCW.0A.00()(b). Whether a particular density is rural in nature is a question of fact based on the specific circumstances of each case. In this case, the common rural residential density in the county is one dwelling unit per five acres or less according to the comprehensive plan. Higher densities may be present "where there are existing clusters of half-acre lots or in higher density resort-residential areas adjacent to water bodies." AR at. Densities of four dwellings per acre are allowed only where such densities already exist. Only.% of rural acreage is designated at densities greater than one dwelling unit per five acres. The comprehensive plan explains the purpose, definition, characteristics, and local guidelines for each zoning density. The Board should not have rejected these densities based on a bright-line rule for maximum rural densities, but must, on remand, consider local circumstances and whether these densities are not characterized by urban growth and preserve rural character. Grand Ave., Suite 1 Page 1 (0) -; fax. (0) -

62 Shortly after the decision in Thurston County, the Board addressed the issue of Clallam County's rural densities in the context of a compliance hearing. Dry Creek Coalition and Futurewise, v. Clallam County, WWGMHB No c, Compliance Order (LAMIRDs and Rural Lands) (//0). The Board had previously found Clallam County's R and RW zoning out of compliance, stating as follows: The importance of rural lands and their character is specific, looking to land use patterns for establishing rural character and seeking to foster traditional rural lifestyles and economies that a County has historically provided. By authorizing densities that do not reflect the existing landscape or economy of the area, the county has failed to maintain the traditional rural lifestyles of the residents of Clallam County as required by the GMA. Dry Creek Coalition and Futurewise, v. Clallam County, WWGMHB No c, FDO (//0). In response to the finding of noncompliance, Clallam County adopted the Neighborhood Conservation Overlay (NCO) provision described as follows: The newly adopted NCO provision addresses neighborhoods which are already substantially developed and characterized by densities greater than the underlying maximum NC zone density of 1 dwelling unit per acres. As described in the County's Rural Land Policy, infill is allowed "at a density consistent with the substantial residential development already existing" and that 'will be consistent with the visual compatibility of rural development with the surrounding rural area". Futurewise initially acknowledged in Dry Creek that whether a particular density is rural in nature is a question of fact based on the specific circumstances of each case, but it nevertheless maintained that a density of 1 dwelling unit per. acres is "characterized by urban growth" and inconsistent with the density otherwise allowed in the rural zones. The Board's response to Futurewise in Dry Creek was as follows: However, if it is agreed that the determination of rural density is based on the specific circumstances of each case, it is not appropriate to dismiss a IdulA acre density out-of-hand, but instead to apply the density, if at all, Page Grand Ave., Suite 1 (0) -; fax. (0) -

63 where it is consistent with existing rural development. In fact, there are areas in Clallam County where a density of 1 du/a acre can be consistent with a rural environment, when appropriately limited in a manner such as the County now provides. In Dry Creek, the Board proceeded to find the overlay zone to be compliant with the rural provisions of the GMA because it authorized densities that reflected the existing landscape of the areas and would not lead to "the inappropriate conversion of undeveloped lands into sprawling, low-density development." Likewise, there are areas in Whatcom County where a density of 1 unit per acres, or possibly somewhat greater in the very limited instances where the RRDO may apply, is in fact consistent with the rural environment and the County has carefully and appropriately identified those areas in the Rural Neighborhoods. The RRA zoning with the RRDO, as limited by the Rural Neighborhood criteria, will not lead to the "inappropriate conversion of undeveloped lands into sprawling, low-density development." As the Board stated in Dry Creek where the challenged zoning similarly affected only a very small percentage of rural lands, the risk of such a conversion "is more imagined than real." Dry Creek, Compliance Order (LAMIRDs and Rural Lands), p.. F. Population Allocation There is no internal inconsistency ill the amended CP related to the rural population allocation. 1 The Board found the County's Comprehensive Plan amendments and development regulations permit a population in the County rural areas in excess of the allocation elsewhere provided for in the County Comprehensive Plan, thereby creating Plan inconsistency in violation of RCW.0A.00(preamble) and RCW.0A.0(1). FDO, p. 1. It is important to emphasize that the Board did not find that there is a requirement in the GMA to size and zone the rural areas to accommodate only the projected rural population. Unlike UGAs that are required To Finding o/compliance Page Grand Ave., Suite 1 (0) -, /ax. (0) -

64 1 to be sized and zoned to accommodate only the projected population, RCW.0A.1 requires only that the rural areas ensure sufficient capacity of land for development to accommodate the allocated growth. Petitioners argue that the population capacity of developable rural parcels exceeds the population allocated to the non-uga areas in Table in the CPo Ex. R-0A, p. -. The County does not dispute that an excess exists but does dispute petitioners' calculation of both population capacity and, most importantly, the amount of the allocated -year growth projection still available. To ask the Board to believe that only,1 people are remaining in the non-uga population allocation is to ask the Board to believe that the non-uga areas in the county gained significantly more people in years than the entire county did in the same years. To arrive at their numbers, Petitioners Hirst, et al. subtracted the,01 new census estimate for from the CP's adopted projection of, (which was adopted based on previous census and OFM estimates), and concluded that the CP's growth allocation for rural areas allows for only,1 additional people by. Based on this calculation, they argue that % of the projected non-uga population growth allocation, or, people, occurred during the first two years of a -year plan. However, this is impossible. The OFM intercensal estimates show a countywide population increase of only, (1,0-1,) between 0 and. See, Ex. R-0, pp. -. Whatcom County permit data indicates that permit activity noted during those two years would have accounted for a net population gain of less than 00. Ex. R-. This figure is the best available estimate of what the actual growth in the county was during this year period and it, unlike Petitioners figure that exceeds the entire growth for the county, is consistent with the overall growth that is estimated to have occurred countywide during this time. Moreover, Table Page Grand Ave., Suite 1 (0) -; fax. (0) -

65 allocates % of the County's 0- projected population growth to the non-uga areas and a population growth of approximately 00 during this year period represents a per-year population growth consistent with the adopted proj ections. Ex. R -. In other words, there is no basis for the Petitioners' contention that the rate of rural growth is outpacing the rate of growth necessary to ensure that the County does not allow growth beyond the allocated growth of,00 people over the course of the -year planning period. The CP amendments adopted in Ordinance No. 1-0 include additional text above Table, the addition of Figure 1 in Chapter One, and amended wording in Policy DD-l, which all address the internal inconsistency issue found by the Board. Ex. R-0A, pp. -, -. The amended text calls for the County to monitor population growth outside of the UGAs and take action as necessary to address any discrepancies between observed growth and the projected growth allocated to the non-uga areas. Policy DD-l states that these actions may include changing development regulations to limit non-uga growth or changing the adopted growth projections during the CP update required per RCW.0A.0(1). The Draft Environmental Impact Statement for the County's 0 UGA Review lists potential actions that can be taken to limit rural growth, along with discussion of their potential effectiveness as well as benefits and disadvantages. Ex. R-0. The Board must assume that the County will carry out this obligation to monitor rural growth in good faith. See, Central Puget Sound Regional Transit Authority v. City of Tukwila, CPSGMHB No , FDO, p. (1). In a prior case, the Central Board responded to a petitioner's argument that monitoring by the County was not sufficient: While Petitioners characterize the County's monitoring as "hollow" (CCSV Reply Brief, at ), the Board must presume that the County will act in good faith and will bear in mind that urban and rural policy Grand Ave., Suite 1 Page (0) -; fax. (0) -

66 decisions at the countywide level cannot be made in isolation. The practical and functional linkages between urban land, rural land and resource lands are reflected in specific GMA provisions. More recently and directly on point is the new requirement imposed by the legislature in 1 that the County, and its cities, are to monitor the supply of buildable lands within the UGAs. Sec., Chapter, Laws of 1. The County's duty to allocate population county-wide, including both the UGAs and the rural areas CRCW.0A.1), combined with its duty to monitor buildable lands within the UGA, necessarily implies a duty to monitor rural land development as well. If, as a result of this urban and rural monitoring, the County concludes that the GMA or the Plan is not being met, it has the authority and the obligation to take appropriate action. Sky Valley, et at. v. Snohomish County, CPSGMHB No. --00c, Order on Compliance, p. (//1). The Board's decision does not require that the County take the drastic measures advocated by Petitioners Hirst, et ai., especially now when there is no support for their position that the County has already used up % of the rural population allocation. At some point, the County may be required to take action to address this issue and it may chose to employ some 0 the measures suggested by the Petitioners. However, that decision will be up to the County Council if and when the yearly monitoring shows it is necessary. The Department of Commerce endorsed the County's resolution to this issue in its letter of June, 1. Ex. C-0. In response to the Department's request that the timing be specified, the County inserted the current language that requires the monitoring report to be published by February 1 each year. The CP's internal inconsistency has been resolved, and the Petitioners have failed to show that the CP, as amended by Ordinance No. 1-0, remains out of compliance with the Board's order. IV. CONCLUSION Page Grand Ave., Suite 1 (0) -; fax. (0) -

67 1 With the adoption of Ordinance No. 1-0, the county has resolved all of the issues of noncompliance and invalidity as presented in the FDO. The County respectfully requests that the Board enter a Finding of Compliance in this matter. DATED this st day of September, Page Grand Ave., Suite 1 (0) -; fax. (0) J-

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