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What Does “Order of Invalidity” Mean? Defining the Growth Management Hearings Board Decision

February 2011

Cover Story

What Does “Order of Invalidity” Mean? Defining the Growth Management Hearings Board Decision

by Jean Melious & Cathy Lehman

Jean Melious is an associate professor in the Environmental Studies Department at Western Washington University. She is a also partner in Nossaman LLP, where she specializes in land use and environmental law. She was the chair of the Whatcom County Planning Commission for two years and is currently a member of the Futurewise Whatcom Steering Committee.
Cathy Lehman is chapter director of Futurewise Whatcom, the local chapter of statewide land use advocacy organization, Futurewise, which works to protect rural and resource lands, promote compact, livable cities, and prevent sprawl.

Just before the start of 2011, the State of Washington Growth Management Hearings Board handed a victory to Futurewise and to all Whatcom County residents who oppose irresponsible sprawl. For too long, the county’s plan for rural Whatcom County has allowed sprawl to encroach upon our farms and forests and degrade our water quality.

Although the county has had years to come up with a better plan, it has not done so. Recognizing that the longer we wait for the county to act, the more damage is done to our rural areas, the board issued a rare “Order of Invalidity.” Until the county steps up and adopts a valid plan, the Order puts a stop to most development in rural areas that violates state law and helps make sure rural Whatcom stays rural.


How Did We Get Here?

In 1997, when Whatcom adopted its Comprehensive Plan, it never even tried to meet the Growth Management Act’s requirement to limit intensive development in rural areas. Not surprisingly, in 2005, the board found that Whatcom County’s planning policies violated the Growth Management Act because the policies allowed a “pattern of low-density sprawl” in rural areas.

 Gold Star, a Canadian developer that owns property in Birch Bay, decided to appeal this decision by taking the case to court. Although the county chose not to participate in the litigation that followed, Gold Star fought all the way to the Supreme Court, which agreed with the board that Whatcom County did not plan properly for rural areas.

The Washington State Supreme Court told the county that it “must revise its comprehensive plan to conform to 1997 amendments to the GMA that set out criteria for establishing limited areas of more intensive rural development and rural densities.” If you are familiar with the barely pronounceable acronym, “LAMIRD” mentioned in connection with the Order of Invalidity, that is what it means: Limited Area of More Intense Rural Development.


The Right Kind of Development

While the term LAMIRD is awkward, the concept behind it is simple and intuitive. One of the goals of planning is to prevent “a right thing in the wrong place, like a pig in the parlor instead of the barnyard,” as the United States Supreme Court said in Village of Euclid v. Ambler Realty (a 1926 case based in Ohio upholding local governments’ power to plan).

That’s precisely the point of planning for LAMIRDs: rural development in the right place helps to provide jobs and services for rural residents. Like a pig in the barnyard metaphor, it is useful and beneficial. On the other hand, rural development that threatens agriculture because it brings too many people and pets into close range of agricultural practices, or that hurts water quality, or creates a need for expensive roads, water, sewer, and police and fire services, is like a pig in the parlor – it does not belong there and can cause damage by being out of place.

 While Gold Star was in court fighting the need to do better rural planning, Whatcom County was working to make sure that LAMIRDs occur in the right places. Starting in 2008, the county held public meetings on rural planning. Throughout 2009, the County Council and the Planning Commission worked on rural planning, and in October 2009, the Planning Commission sent the County Council a recommendation for a new rural plan.


Enter November 2009 Elections

The new County Council, elected on a “property rights” wave in 2009, seemed uninterested in restricting development in rural areas, where signs claimed that the county’s state-mandated rural planning efforts were a “Land Grab.” Although the new Council’s Planning and Development Committee was briefed on the need to update rural planning in January 2010, it did not schedule any substantive discussions for two more months. Since that time, the Council has made it clear that changing its rural plan is not a high priority, and has instead spent most of its resources expanding Urban Growth Areas around Blaine, Birch Bay and Ferndale.

The county was supposed to revise its plan by late December 2010. The Council had all of 2010 to work on the plan, and more than a year’s work – public consultation, public hearings, and the Planning Commission recommendation – had already been done. But the county knew that it could not, or would not, meet the December deadline, and asked the board for an extension of time.

 Remember that five years had already passed since the board found that the county’s plan did not meet the requirements of state law. Nonetheless, Futurewise did not object to the county’s failure to complete the job on time. Futurewise was concerned, however, about the effect of the county’s foot-dragging on planning appropriately for rural development in Whatcom County. Futurewise requested an Order of Invalidity, and the board agreed that the Order was needed.


Why the Order of Invalidity Was Needed

Many people don’t know that the Growth Management Act is not automatically enforced. The Act requires local governments to adopt plans that prevent sprawl and protect natural resources. If local governments adopt bad plans, however, and no citizen or concerned group knows enough or can marshal the resources to appeal the plan to the Growth Management Hearings Board, the local government’s bad plan becomes law. There is no automatic review and no assurance that plans will actually do what the law says that they have to do.

Imagine if this system were applied to the enforcement of traffic laws. For example, say that a car drove down the street at 50 mph in a 25 mph zone. There’s a police station on the corner. But the police can only look without stopping the speeder, unless a citizen calls them and asks them to enforce the law. That’s how traffic laws would be enforced if the Growth Management Act method applied to speeding.

The Order of Invalidity highlights an even stranger aspect of Growth Management Act enforcement. Five years ago, the board found that the county’s planning violated state law. Nonetheless, the plan still applied in Whatcom County, and property owners could still continue to build under the old plan and file applications to “vest” their rights in the future. “Violation” of the law isn’t enough to keep the plan from applying. The board has to make a finding of “invalidity” before the plan no longer applies.


Damage Must Be Proven

The board will only make a finding of “invalidity” if it is convinced that a plan not only violates the law, but that it will “substantially interfere” with the goals of the Growth Management Act. Back to the speeding example, it’s as if the police stopped the driver going 50 mph and said, “You are violating the law, and you will have to drive more slowly at some point in the future. Until that time, though, you can keep driving 50 mph as long as nobody tells us that you’re doing any harm.” Once again, a citizen would have to make the call to the police, and the citizen would have the burden of showing that violating the law caused harm. Once that burden was met, the police could take away the driver’s license until the driver showed the ability to comply with the speed limit.

The problem with this system is clear: damage must be proven. To show that the legal violation should stop, the citizen has to show that harm has already been done.

Unlike most individuals who are concerned about Whatcom County’s future, Futurewise has the resources and knowledge to “call the police” on Growth Management Act violations. That is, in fact, their role as a citizen watchdog agency for wise land use in Washington State. When it did so in 2005, the board agreed that the county had violated the law, but it did not make a finding of invalidity. The board stated that it had “not been presented with evidence that permit applications will vest to such a degree that the county’s work on remand to establish appropriate LAMIRDs and rural densities will be jeopardized.” The board noted that it would reconsider “if such evidence is presented to the board during the compliance period.”


Averting More Sprawl

Futurewise presented such evidence in December 2010 when it again requested an invalidity finding. Futurewise Whatcom requested a record of all land division, commercial or industrial building permit applications filed since the board decision on September 20, 2005 within the areas affected by the decision. The results showed that an astonishing number of permit applications have been accepted and allowed to vest, including 233 commercial permits, ten “long plats” (five or more lots – the county did not provide information showing how many lots were created ) and 85 short plats (four or fewer lots).

Existing commercial development permits in rural areas will allow development at the intersection of I-5 and Birch Bay Lynden Road, for example, as well as stretching along the Guide Meridian. Urban levels of development in these areas not only creates sprawl, but also competes with genuine urban areas, including the county’s small cities, which are trying to attract businesses and industry. If we want urban growth to take place in urban areas, we cannot make it easier for developers to pick a “greenfield” site that is not subject to the fees and standards that cities appropriately impose.1

Futurewise Whatcom’s request for information did not go unnoticed. In an effort to avoid an “invalidity” finding, on October 26, 2010, the Council adopted a 60-day “emergency” moratorium on applications for subdivisions into parcels smaller than ten acres. In December 2010, the Council extended the moratorium for six months. Relying on this temporary moratorium, the county argued that the board should not issue an invalidity order.

The county’s argument had one fatal flaw, however: its moratorium applied only to the areas outside the LAMIRDs proposed by the Planning Commission. The county could continue to approve development projects in areas where the Supreme Court had explicitly found that the county’s plan violated the law. This point was not lost on the board, which stated bluntly that “the county ought not be allowing development within ‘recommended’ LAMIRDs until it has adopted LAMIRD criteria found to comply with the Act.” Because the county’s plan had been shown to lead to the “inappropriate conversion of undeveloped land into sprawling low density development,” the board found that it substantially interferes with the Growth Management Act and issued an order of invalidity.


Effect of the Order of Invalidity

The Order affects development in approximately 13,400 acres in rural areas of Whatcom County. If property owners within those areas apply to develop their land, the county must let them know that their applications will not be considered under the plan that was in effect before the Order was issued – the 1997 plan, with its illegal land use designations and sprawl-inducing policies. Rather, landowners’ applications will only “vest” when the county persuades the board that its plan no longer substantially interferes with the Growth Management Act.

On January 11, 2011, the Council adopted another “emergency” moratorium extending the moratorium on ten-acre subdivisions to the areas within the Planning Commission’s recommended LAMIRDs.

There clearly was no ‘emergency’ relating to development in these areas because the Order already covers these areas and prevents developments from vesting. Even more significant, however, is the fact that the moratorium does not address the problem. If the Order were lifted and the moratorium remained in place, commercial and industrial development projects, as well as “resort residential” projects, could develop in rural areas through “binding site plans,” which are unaffected by the latest “emergency” moratorium. Unlike the Order, the moratorium also allows commercial and industrial building permits to be filed in undeveloped rural areas.

Both moratoriums adopted by the Council were clearly no substitute for the Order.


So What Comes Next?

The board has extended the county’s compliance date to March 29, 2011. As of press time, no plan to meet this deadline has been announced publicly. The county’s Planning and Development Services web site was recently updated to state that the County Council’s Planning and Development committee “intends to further review” a revised draft of the rural plan, which it has had since September 14, 2010.

Meantime, the Planning and Development Services web site states “a public hearing on the proposed amendments will follow in the coming weeks.”

Although invalidity findings are rare in Washington State, Whatcom County has a history of invalidity. In the mid-1990s, the county fought bitterly against the Growth Management Act. As a result, the board issued several invalidity orders that found that the county had failed to protect natural resources and had allowed too much development in rural areas. Will the county learn from history and decide that 20 years of opposition to state law is enough? Or will history repeat itself, with the Council gearing up to spend taxpayer money to fight against good planning, rather than getting down to the work of preventing expensive sprawl?

The next few months will decide. Citizens have a deep and personal stake in the future of Whatcom County. Do not hesitate to contact your County Council representatives to let them know the right path to take. §


1. Whatcom County, unlike most cities within the county, has no development impact fees. This is one factor that makes it cheaper to build in the rural areas than in the cities. In rural areas, taxpayers rather than developers pay the costs of growth.

Editor’s Note: As of press time (Jan. 24), the Whatcom County Council had a work session scheduled for Jan. 25 and announced on its Planning and Development Services website that a public hearing will be scheduled in the coming weeks.


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