Compliance, Noncompliance and Invalidity in Whatcom County
The recent Governors Point decision by the Growth Management Hearings Board adjudicated over 50 issues pertaining to Whatcom County’s rural planning policies and land use provisions. Findings of compliance, noncompliance or invalidity provide quantitative measurement of the County’s success (or lack thereof) in meeting Growth Management Act (GMA) requirements. If the County's performance was graded under this standard, it would qualify as worse than abysmal.
Under the GMA, municipalities must periodically review and update planning policies and land use provisions. Revisions enacted by a municipality are presumed to comply with the GMA without any further review. This presumption can be overcome only when a timely appeal is filed with the Growth Management Hearings Board, and only for the specific provisions that are challenged. (It is this GMA provision that results in numerous Hearings Board appeals on a large range of issues.)
When the Hearings Board adjudicates GMA appeals, it is determining whether or not a municipality’s planning actions comply with GMA requirements. The municipality prevails, in full or in part, if the challenged provisions are determined to be GMA compliant. The appealing party prevails, in full or in part, if the challenged policies are determined to be noncompliant with the GMA. Noncompliant provisions remain in effect but must be corrected before a “compliance date” established by the Hearings Board.
For noncompliant actions, the Hearings Board can make an additional finding of invalidity, but does so only in exceptional instances. A finding of invalidity is appropriate when municipal provisions are noncompliant, and additionally, would harm GMA goals if they remained in effect. Because municipalities revise policies and land use provisions in order to remain GMA compliant, it is unusual for these same revisions to contradict the purpose and intent for which they were made. In other words, if a finding of noncompliance is made, a municipality has failed in its planning efforts. If a finding of invalidity is made, a municipality has failed miserably in its planning efforts.
Moreover, the GMA makes it difficult to successfully challenge a municipality’s actions. Municipalities are granted broad discretion in determining how to comply with the GMA, and their actions are afforded deference. Parties who appeal to the Hearings Board carry a high “burden of proof”, which reflects the amount of evidence required to prevail. A separate evidentiary burden exists for each GMA violation asserted.
In most civil cases, the burden of proof is met through a “preponderance of the evidence” establishing that something is more likely to be true than false. In a Hearings Board appeal, it must be proven that a municipality’s action in meeting GMA goals was “clearly erroneous.” The evidence must leave the Hearings Board with a firm and definite conviction that the municipality committed a mistake, even after considering the broad discretion and deference it is granted.
A municipality, on the other hand, has no burden at all. If it shows up and does nothing, it will win if the appellant does not meet the burden of proof. For example, if the appellant’s evidence is strong, but does not prove clear error, the Hearings Board will issue a finding of compliance. This makes it entirely possible for a municipality to violate the GMA and still win an appeal. Stated another way, a finding of compliance is not a guarantee that the municipality has complied with the GMA, but a finding of noncompliance is overwhelming evidence that it has not.
Even after prevailing in an appeal, obtaining optimal compliance can be difficult. A municipality must correct its noncompliance by a certain date and its corrective actions are reviewed during a subsequent compliance hearing. However, at the compliance hearing, the municipality is again entitled to the presumption of correctness, and the appealing party must again meet a “clearly erroneous” burden of proof. In the overwhelming majority of cases, the compliance hearing resolves in favor of the municipality.
As previously mentioned, the Hearings Board can also find noncompliant municipal actions to be invalid, but the standard for imposing invalidity is extremely high. The noncompliant provisions must be harmful enough to substantially interfere with the municipality’s ability to achieve GMA compliant planning. This requires a serious risk that significant development will vest under noncompliant provisions before a municipality can bring its provisions into compliance.
There are two important consequences to a finding of invalidity. First, land use applications involving invalidated provisions can not be processed, subject to statutory exceptions, until the noncompliance is cured. Additionally, for the first time, the burden of proof shifts to the municipality. The finding of invalidity can not be lifted until the municipality proves that it has become GMA compliant.
The Governors Point decision (which included Futurewise and the City of Bellingham as an appellants) issued on January 9, 2012 is the third finding of invalidity made against Whatcom County in the last year and a half! Yet the County would have us believe that it did nothing wrong because it prevailed in a majority of challenged issues. As the above analysis establishes, losing on any issue is meaningful, and being subject to a finding of invalidity (never mind three) is inexcusable.
It is clear that Whatcom County has been willfully failing to enact the land use policies and regulations required under the GMA, and in some cases, has enacted provisions that are harmful to GMA goals. Any statement contrary to this obvious fact is an attempt to distract the public from realizing that public funds have been squandered in an improper attempt to promote the interests of developers. I will be monitoring County Council Members and staff who may attempt to present this as spin.
If you wish to learn more about the specific issues that were appealed, they have been well detailed on Get Whatcom Planning posts by Jean Melious and David Stalheim. http://getwhatcomplanning.blogspot.com.