City of Bellingham Fights Urban Growth Area Designation for Sudden Valley

Tim Paxton is a water drinking, Bellingham resident who is interested in Lake Whatcom issues. He’s a board member with the Clean Water Alliance.

In a surprise move, the city of Bellingham joined the Clean Water Alliance (CWA) in a major court battle opposing Whatcom County’s decision to shoehorn a city into the Lake Whatcom Reservoir watershed. The stakes involve nothing less than the long-term survival of the city’s drinking water reservoir and the rising threat to public health and safety.

Bellingham City Council and CWA are challenging the Whatcom County Council’s vote to designate Sudden Valley a Provisional Urban Growth Area (PUGA)—a fight that will pit the city and CWA against Whatcom County and the Western Washington Growth Management Hearings Board (WWGMHB) in Snohomish Superior Court.

The case is precedent-setting in several respects, including the fact that:

1. Whatcom County is trying to use an Urban Growth Area designation (statutorily employed to identify areas appropriate for high-density growth and incorporation as cities) to allegedly reduce and restrict growth, which is contrary to the intent of the Growth Management Act;

2. The county, in violation of state law, claims that it can use an Interlocal Agreement with the Sudden Valley Community Association to legally bind the future city of Sudden Valley;

3. The county did not allow the 14-day public review period for its SEPA determination, as required by law, having misidentified both the public comment and appeal periods. In a weak split decision which failed to identify the above violations as contrary to state law, the WWGMHB allowed improper legal precedents to be set, precedents which must now be overturned in court.

With this particular violation of its duty to protect public health and safety, the Whatcom County Council may have achieved the dubious distinction of becoming the only local government in Washington to insist on creating a major city around an irreplaceable drinking water reservoir already impacted by existing levels of development.

Historically, the city of Bellingham has not opposed the Whatcom County Council’s numerous decisions that have perpetuated and exacerbated the degradation of the city’s sole drinking water supply. However, given the spate of recent reports detailing the continuing decline of Lake Whatcom, the city was finally motivated to act.

Strengthening the city’s resolve to intervene in the appeal was that fact that the county’s decision was made without consulting Bellingham or performing the appropriate in-depth scientific studies to justify its decision.

In a recent five to two vote, the City Council voted first to file an amicus brief to support the Clean Water Alliance’s challenge. Subsequently, led by Council Member Gene Knutson, the City Council voted to greatly increase its involvement by agreeing to file a motion to intervene in the appeal and to engage the services of the Clean Water Alliance’s attorney, who has an extensive background in this area of law. City Council members Bob Ryan and Grant Deger were the two council members who opposed joining this legal appeal.

The Clean Water Alliance defeated at least three previous attempts by the county to designate a UGA within the reservoir; however this latest appeal process was unique. The Western Washington Growth Management Hearings Board usually has three members deciding appeals. In this case, one member recused himself and one was ill, so only one member, Les Eldridge, was present at the hearing.

Mr. Eldridge’s conduct during the hearing so offended a Washington state biologist in attendance that the scientist wrote to the governor’s office and shared his perception that the hearing was the most biased he had ever attended in his 12 years with the agency. (As a side note, Les Eldridge has since retired from the $85,000 per year Western Washington Growth Management Hearings Board position.) In their final decision, the two sitting board members split on the issues, an outcome which validated the County Council’s decision.

The PUGA designation allows several things to occur in Sudden Valley. The first and most important action legalized by the County Council’s vote was the extension of urban-level services, specifically sewer services, to thousands of lots in Sudden Valley and nearby areas, including a few rural zones.

It’s interesting to note that Sudden Valley has not made a single move in the interim towards becoming a city. If it did so, the general public would then be “off the hook”—it would no longer be financially responsible for supporting (subsidizing) the enormous costs of growth and pollution control in that area.

CWA is also challenging the county’s “Mitigated Determination of Non-Significance,” which implies that the environmental and public health effects were correctly assessed and that the county has determined it can adequately control those impacts. The PUGA legalizes the construction of thousands of additional houses around the drinking water reservoir.

Instead of scientifically studying the anticipated impacts of all those additional sources of pollution on the reservoir, the county used the unusual (and, CWA claims, illegal) method of mitigating the proposed action by making a very dubious Interlocal Agreement with the Sudden Valley Community Association. Interlocal agreements are, by statute, only to be made between public agencies and only in respect to the powers they have.

Sudden Valley Community Association does not qualify as a public agency nor does it have the authority to set zoning (densities and uses). In addition, the future city of Sudden Valley would be a sovereign legal entity and could not be bound by an agreement made on its behalf, before it existed, by a community association.

Among the remedies that CWA is seeking from the court are

1. to require the preparation of an environmental impact study on the environmental and public health impacts of the designation,

2. to void the ordinance upon adoption due to egregious SEPA procedural violations, which in turn would allow

3. an injunction to halt further sewer hook-ups to an illegally placed urban sewer.

The County Council could, at any time, simply withdraw their UGA designation, but they have repeatedly refused to do so. Several years ago, it was estimated that the Whatcom County Council had already spent at least $500,000 on attempts to force a UGA into the city’s reservoir, which greatly expands development at the cost of public health. Who knows what the dollar amount would be today? §