Local Jurisdiction Blog

I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.James Madison

This blog is made available as a resource to BNCW members and interested visitors alike. It is our intent to engage and share information specific to the twenty-six local jurisdictions located throughout North Central Washington. Visitors will find the posts made to this blog are intended to be informational, factual, frank and perhaps lacking political-correctness. However, just as we will be quick to hold local government accountable for a policy or action that we believe violates our core beliefs, we will be just as quick to herald those that ring true.

We invite your comments, but ask that if you feel compelled to comment, that you do so without the cloak of anonymity. We reserve the exclusive right to remove any posts at any time.

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  • February 16, 2017 9:38 AM | Administrator (Administrator)

    Our local jurisdictions are struggling with all these issues, and much of it is driven by decisions made in Olympia over which we folks in Eastern Washington can influence not at all.

    For instance, when Initiative 502 was passed, legalizing recreational marijuana, there was precious little guidance for local jurisdictions and no help coming from the State.  Who knew what the impacts might be and the State didn’t offer to help the locals at all.  Different jurisdictions are dealing with it differently.  Okanogan County has made marijuana operations a conditional use, but with very little in the way of sideboards on what should be considered in granting or denying a permit.  In Douglas County, rules have been adopted but have not been tested much.  In Chelan County, the planning commission is struggling with adopting rules, and each city and town within these counties must wrestle with what to do.  In the meantime, very little funding is being provided and most of the tax revenues go to the State.

    The State Shoreline Management Act requires that counties and cities amend their adopted shoreline master program on a set schedule and Chelan County is wrestling with that issue as this is written.  Regrettably, the framers of that legislation sold it on the notion that there was to be substantial local control, and of course, that has not been the case.  The local jurisdiction is charged with adopting a local shoreline code, but it has to be approved by the State Department of Ecology.  Of course, Ecology rarely likes what Eastern Washington folks like, so the adoption becomes a game guessing what Ecology will approve.  And then the local jurisdiction is charged with administering the permitting process for a regulation they didn’t really approve.  How does that make any sense?

    Then there is the latest dictate from our Washington State Supreme Court.  It’s known as the “Hirst decision,” and has the potential to completely stifle rural development which almost exclusively relies on “permit-exempt” wells.  Since the Department of Ecology has effectively stopped issuing water rights, the only alternative for most domestic water service in areas not served by a municipal water system (which is almost everywhere) is to drill a well.  Now, the Supremes have said that in order to get a building permit on property that is served by one of these wells, it is up the County to prove there is both physically and legally available water, but in doing so, gave no guidance whatsoever as to how that should be accomplished other than to suggest that the negative must be proven – in other words, it has to be demonstrated that there will be no impact (not a molecule) on in-stream flows and that senior water rights will not be impacted.  There is nothing dearer to the heart of a central planner than to require a landowner to prove a negative.

    We’re hopeful that the current legislature will somehow fix the Hirst problem, but don’t count on it – the Governor has to sign such a bill.

  • January 05, 2017 8:21 AM | Administrator (Administrator)

    The elections are over, the holidays are done, and we can start thinking about what’s going to happen in 2017 in our three local counties.  BNCW has been very active for many years trying to help shape county policies to minimize or eliminate regulatory creep, increase local government accountability, transparency, and predictability.

    Okanogan County

    In 2012, our organization backed Ray Campbell and Sheilah Kennedy and both won their respective commissioners seats, both defeating incumbents.  Now the same thing has happened – both Ray and Sheilah lost their seats on the commission.  Ray and Sheilah were fearless advocates for positions they thought were right for their constituents.

    Ray has been replaced by Andy Hover in the Methow district.  Although Andy is the son of former commissioner Bud Hover, we really don’t know much about his politics.  His campaign rhetoric was pretty non-committal on land-use so we’re hoping for the best.  The commissioners are still facing a legal challenge to the adopted comprehensive plan and zoning codes.  They will also be dealing with the shoreline master program that was adopted by the county in July of 2015, but must still be approved by the State Department of Ecology.

    The other new commissioner is Chris Branch, who is the city planner for Oroville.  His support in the election came in large part from well-to-do west-side environmental activists, and he seems to be an advocate for central planning.  We hope he isn’t too beholden to the no-growth crowd, even though real “growth” hasn’t been much of an issue in Okanogan in the past decade or so.  For instance, only one subdivision (which hasn’t been built) has been submitted for approval in unincorporated Okanogan County in the past three years.

    Another issue all three counties will be dealing with is the Hirst decision that could have a chilling effect on building outside of the cities.  The outgoing board just passed an ordinance requiring all building permits and land-use applications to demonstrate legal and physical water availability.  This will be a huge issue in 2017.

    Chelan County

    Only one new commissioner is being seated in Chelan County. Kevin Overbay is replacing retiring commissioner Ron Walter.  Ron has always been a very approachable advocate for personal property rights and we have always supported him.  Kevin was also our choice in the general election and our interviews resulted in a very positive impression.  We’re very optimistic that he will step right in and join Doug England and Keith Goehner in managing land-use in the county in a very positive way.

    Chelan County has taken a “wait and see” approach to the Hirst decision it seems, but they are still faced with adoption of a new shoreline master program and a comprehensive plan update this year and will have to deal with Hirst on some level.  Fortunately, the outgoing board hired Hank Lewis as their Community Development Director in 2015, and Hank has been a real breath of fresh air in terms of administration of the land-use codes in Chelan County.

    Douglas County

    BNCW has been pretty much persona non grata in Douglas County for the last several years.  With the retirement of Ken Stanton and the defeat of Dale Snyder, who were replaced by Dan Sutton and Kyle Steinburg, respectively, we expect major changes in the way business is done in Douglas County.  In the past, staff has effectively run the County and we expect that these new commissioners will have none of that, and return policy level decisions to where they belong – with the elected commissioners.

    It won’t be easy.  Staff has long had the attitude that commissioners come and go and staff remains, but we are very optimistic that significant changes are forthcoming and accountability and transparency will be restored.  It’s been too long that the managers of the county have forgotten that there is a distinction between the needs of the County government and the needs of the County itself, made up of its citizens.

    BNCW vigorously support both Dan and Kyle because we believe they will bring a new culture to Douglas County government to the great benefit of their constituents.   It’s about time.

  • November 28, 2016 9:22 AM | Administrator (Administrator)

    Most folks by now that are in any way involved in the real estate industry have heard, at least in passing, about the recent decision by the Washington State Supreme Court, commonly referred to as the “Hirst Decision.”

    This decision has its roots in a wide variety of land-use rules and statutes, including the Growth Management Act (GMA), Water Rights, and rules adopted by the Department of Ecology (DOE), as well as locally adopted land-use plans.  It originated in Whatcom County and was brought by the usual suspect, Futurewise, and some others.  This article is only a summary, and if you are interested in a more in-depth look, just Google “Hirst Decision.”  Everyone and their brothers are weighing in and trying to figure out just what it means and how it affects landowners, builders, local governments, affordable housing and almost every other aspect of life in our state.

    Futurewise sued Whatcom County arguing that their comprehensive land-use plan did not adequately protect water supplies.  In our state, small water withdrawals of ground water (less than 5000 gallons per day) do not generally require a water right.  Where there are no municipal water systems available, typically in rural areas, there is no other real option, since it’s almost impossible to acquire a water right.

    Without getting down in the weeds too far as to the exact rationale put forward by the Court, they essentially ruled that counties (and presumably cities, if applicable) cannot rely on DOE’s assessment of water availability and must make their own independent determination of the availability of water from permit-exempt wells, both legally and physically.  Regrettably, the Court gave absolutely no guidance on how that might be done, and what standards would such determinations be judged by.

    They said that counties cannot grant building permits without that finding of water availability.

    What’s been done locally in response, then?

    Chelan County and Douglas County have, it seems, taken a wait-and-see approach, reasoning that their Comprehensive Plans have not been challenged, and they do not have to update them until 2017.  What will happen then is anyone’s guess.  Okanogan County (which is not a GMA County) passed an emergency rule requiring that all building permits and other land-use approvals that rely on permit-exempt wells must be reviewed by the County Hearing Examiner to make a determination as to the physical and legal availability of water that does not impact senior water rights or what are called in-stream flows.  As of this writing, no permits have been reviewed, so how that plays out is also up in the air.

    So what is the effect of all this?  Good question.  Some banks, knowing the situation, are apparently refusing to issue portfolio or land loans for properties that involve permit-exempt wells.  If there isn’t some fix then, rural Washington will essentially be shut down to most new construction, since as mentioned above, in most places there are no municipal water systems – most homeowners rely on permit-exempt wells.  Of course this is the goal of Futurewise – stopping what they refer to as “sprawl.”  In their minds, we should all be living in high-density buildings in the City so their donors can enjoy rural Washington.

    There may be a legislative fix in the works.  Senator Doug Ericksen from the 42nd Legislative District that includes Whatcom County is working with other Senators including Brian Dansel from the 7th and Brian Blake from the 19th to propose legislation.  Undoubtedly there will be proposals in the House as well.  Property rights activist groups, such as the Citizens’ Alliance for Property Rights (CAPR) are actively involved.

    In the meantime, some counties, such as Pierce County, have adopted rules requiring that all building permit applications (using permit-exempt wells) must be accompanied by a hydrogeologic study demonstrating that water is available.  No one knows just how much time and cost that could add to housing costs.

    BNCW will be keeping in touch with this issue and offer updates just as often as we can.

  • April 27, 2016 11:46 AM | Administrator (Administrator)

    There is currently one position on the Douglas County Planning Commission that is open in District #2. Additionally, in June, there will be at least one, and perhaps two, additional open seats on the Commission--one, an at-large position, and the potential for one in District #3. 

    For BNCW members who live in Douglas County, this is an opportunity to play a role in helping to shape land-use regulations and the planning process in the County. To learn more about the Planning Commission, click here. To gain access to an application to be considered for appointment, click here.

    These important volunteer positions are four-year terms and are appointed by the county commissioners.

  • January 29, 2016 9:20 AM | Administrator (Administrator)

    Hank Lewis was hired as Community Development Director in August of 2015.  This was after many years of a very troubled department that needed leadership, direction, and motivation.  Fortunately, Hank has been a remarkable breath of fresh air; bringing all those qualities to the job.

    By all accounts – customers of the department, staff, and the County Commissioners, Hank is really making progress.  While he has only been on the job for five months or so, folks who do business with that County agency, at least those I have contact with, universally agree that there is a palpable cultural change with that department. 

    Hank is a long-term resident of the area and has worked mainly in the private sector or as we say “on the other side of the counter.”  The Commissioners, when they were seeking a new director, to their credit, looked for someone with local ties and private sector experience.  They took their time, interviewing and rejecting a number of applicants until they essentially stumbled upon Hank, and now he is their guy.

    Hank has a background in planning, so even though he had never really applied for the job, he was well known by the commissioners and they sought him out. 

    BNCW regularly attends the commissioners’ meetings when Hank is giving his weekly planning update and it’s amazing how different those meetings are compared to years in the recent past.  Now the conversations between the commissioners and staff are relaxed, productive and there is perceptible air of trust for both.

    It looks as if Hank is going to provide the much-needed leadership that, over time, will create a whole new culture within the Community Development Department – and that will serve the needs of Chelan County much better than in the past.

  • November 06, 2015 12:51 PM | Administrator (Administrator)

    Impact fees have long been an option that local governments consider when planning for how they will pay for infrastructure needs and their capital facilities plans, as required by Washington State’s Growth Management Act. Earlier this summer, the City of Wenatchee’s Parks Department announced that its advisory board was exploring the implementation of an impact fee as a means for helping to pay for the development of new parks and recreation sites within the City.

    We all appreciate and want nice parks and recreational opportunities. However, housing affordability (or lack of affordable housing) continues to be a huge challenge in our Valley, and one where the components that drive housing costs up are myriad in nature, but all ultimately contributing to the problem—metaphorically, a death by a thousand cuts. The following points all lend to why BNCW is opposed to impact fees in general, but more specifically the notion of implementing park impact fees:

    • Consider this: “The Smiths” were born and raised in Wenatchee and have just bought a brand new house.  Should they have to pay a special park tax over and above what you or I pay?
    • It is often asserted that Impact Fees (a local government tax on new construction to fund off-site public capital facilities—in this case, parks) “make new growth pay its way.”  But in the City of Wenatchee, many of the new homes are being purchased by EXISTING residents, not newcomers. 
    • It is often asserted that impact fees “make developers pay.”  But in reality, just like the cost of labor, lumber and permits, impact fees are ultimately passed on to the consumer in the sale price. 
    • It is often asserted that “residential development does not pay for itself,” but this is simply not true.  A 2010 study commissioned by BNCW demonstrates that  every 100 newly constructed single-family homes creates  $22.7 million in local income; $4.4 million in taxes and other revenue for local governments, and 443 local jobs. This doesn’t even address the ongoing, year-after-year financial impact of these 100 new homes. And new development also already pays for most “on-site” and “at-site” infrastructure, such as streets, water and sewer lines, stormwater ponds, street lights, traffic lights and turn lanes.  Many developments also provide onsite recreation facilities that relieve burdens on public facilities.
    • Impact “fees” are a discriminatory tax on one small segment of the community: people who buy or rent/lease new construction.  This type of tax tends to be politically doable because the “tax” is levied on folks that haven’t yet been identified and have no say in the matter. Why single out construction customers to pay for public infrastructure? We don’t make local grocers pay into the food stamp program.  We don’t make our local papers give free advertising space for government legal ads.  We don’t make families with kids in school pay extra for public schools. 
    • Impact fees hurt affordable housing.  Because impact fees cannot be scaled based on house size or price, they place a disproportionate burden on lower-income households.  They increase down-payment requirements and closing costs, which are based on a percentage of the sale price.  According to a recent study, a $1,000 impact fee adds $1,390 to the sales price of a home, and costs the buyer more than $2,500 over the life of a 30-year, 5% mortgage. This same study indicates that—on a national level—a $1,000 increase in the home cost leads to the pricing out of about 206,269 households.
    • Impact fees never eliminate or keep taxes down because they never amount to enough to pay for all new capital facility needs.  They also cannot legally be used for maintenance or operation, retrofit or replacement, or to fill a backlog of infrastructure needs.  But they can have an effect in eroding public support for bonds to do these things. 
    • Impact fees can hurt economic development efforts and can actually exacerbate “sprawl”, as rising real estate prices send consumers to surrounding jurisdictions for lower prices.
    • There are other options that provide a more predictable, stable, and fair means of providing for infrastructure, such as revenue bonds, levy lid lift option, and formation of special taxing districts (Metropolitan Park Districts).  Simply put, public infrastructure that benefits everybody should be paid for by the public at large.

  • August 10, 2015 9:19 AM | Administrator (Administrator)

    The Chelan County Commissioners have named Hank Lewis for this important and powerful position.  True to their word, they hired someone with local ties, who lives in the area, and who is at least reasonably familiar with the issues do be dealt with.

    Hank is a long-time resident of the area and has been involved in land-use issues form many years, representing many clients with land-use projects in the region.  We have known Hank for a long time and it’s to the Commissioners’ credit that they decided to hire someone from the private sector (although Hank has some government planning experience, working at the City of Edmonds as a planner earlier in his career) rather than career bureaucrats like the last few attempts.

    Chelan County Community Development has suffered from a lack of leadership for at least the last 8 years, and as a result, the department has become increasingly difficult to work with and very unpredictable.  This isn't necessarily a reflection of the people working there – it’s simply from lack of direction.

    Hank has already reached out to BNCW (and many others) to get an assessment of our concerns, and he is consistently hearing many of the same things, from many different sources, in terms of what issues are most important.

    We’re very pleased that the Commissioners have taken this approach and are optimistic that Hank will be successful.

  • July 14, 2015 10:57 AM | Administrator (Administrator)

    Note: BNCW is tracking with interest this class action lawsuit in San Juan County. The following is an article from The San Juan Guardian, dated 03/09/2015. 

    A class action lawsuit was filed today (0309-15) against San Juan County that alleges CD&P (SJC Community Development & Planning) has unlawfully charged building and land use permit fees that exceed the amount the County may charge under state law. 

    The complaint states, in part, that CD&P have "systematical overcharged a total of at least $997,222.00 in the past three calendar years." Total damages are alleged "to be in excess of $1,222.051 and may be revised upward" if new information is found as the case proceeds 

    The class action suit will include any person or entity that paid a land use or building permit application fee within the past 3 years.

    The Complaint filed in San Juan County Superior Court and docketed as Community Treasures, et. al, v. San Juan County CASE No. 15-2-05033-9. (pdf (2349\k file) alleges San Juan County Community Development and Planning Department (SJC CDP) collected revenues in excess of what is allowed under state law and that applicants are entitled to a refund of at least $1,222,051 dollars.

    Plaintiffs contend that RCW 82.02.020, which in general, prohibits counties from collecting taxes, fees or charges, on construction of any kind, unless the fees are “reasonable” and dedicated solely to cover the actual costs of processing applications, reviewing plans, and conducting inspections (Related Story)

    Because revenues from building fees have both completely funded the Building department and have been used for other general county government purposes, the fees operate as an unlawful and excessive tax, the Complaint argues. Permit applicants have been subsidizing general county governance, and this violates state law.

    Nicholas Power, the attorney who filed the complaint says: “The intent of this law is clear and it is there precisely to prevent local government from using permit fees as clandestine and non-legislative taxes, which in all fairness should be borne democratically.”

    The Complaint alleges that the Building Division has collected $2,541,269 dollars in the past three years but only spent $2,053,969 dollars. 

    The difference of $487,300 dollars represents the unlawful surplus. The Complaint further alleges the County also included some fund expenses and misappropriated fees that are prohibited under the statute because they are not reasonably necessary in processing permit applications. 

    These statutorily prohibited expenses and fees total an additional $509,922 dollars . In addition, the Complaint alleges that the planning division has systematically overcharged applicants by $224,828 dollars.

    The first thing to occur, Power said, "is that the court will have a class certification hearing. If the court agrees that this type of claim is properly a class action, it will order us to contact all members of the class and explain to them the circumstances of the suit."

  • June 22, 2015 5:45 PM | Administrator (Administrator)

    While some local planning commissions are sometimes simply window dressing for planning staff, the Chelan County Planning Commission is populated by a panel of very engaged citizens truly interested in making land-use decisions that are in the best interest of the County citizens.  They do not confuse the needs of County government with the needs of the populace.  The County Commissioners are to be congratulated for being very thoughtful about who they appoint to the commission.

    BNCW was recently engaged in a code-amendment process that was sponsored by the County Commissioners, and was surprisingly opposed by staff.  The issue is pretty arcane and one that one of our lawyer friends would describe as, “down in the weeds.”  What it boils down to is whether or not a landowner can rearrange his property lines using a relatively simple boundary adjustment process, or go through a difficult and expensive short plat process to accomplish the same thing.  To keep it in perspective, the simple process might be a $1500 process taking a couple of weeks, whereas the more complicated process might be 10 times that amount and with quite an uncertain outcome, and, take 6 to 9 months, at least.

    It’s not uncommon when dealing with complex procedural issues as this, for planning commissions to rely completely on staff, and understandably so, given the complexity of the issue and the general presumption that staff has properly analyzed the issue.

    But the Chelan County Planning Commission is not a typical one.  The members really dive in and digest the materials and truly want to understand the issue in order to make their best recommendation to the County Commissioners.  And that is as it should be.  These folks are definitely not bobble-heads. They carefully listen to testimony from staff and interested citizens and are not a bit afraid to ask questions, even at the risk of appearing to be confused or unclear about the issue, which is certainly no shame given the complexity of these sorts of issues.

    On this particular issue, the Planning Commission, in our opinion, did an excellent job of hearing testimony and making the right recommendation regardless of staff preference.

    It’s refreshing to participate in a process where public testimony is given careful consideration, and we applaud the commission and its members and hope the County Commissioners will adopt their recommendation.

  • March 24, 2015 5:43 PM | Administrator (Administrator)

    As you likely know, Chelan County Community Development has been operating for well over a year now with an interim-director. The Chelan County Commissioners conducted candidate interviews in February and have narrowed their list to three finalists. It is our understanding that one candidate hails from New Hampshire; one from Iowa and one from Lake Sammamish. 

    The Commissioners will be hosting a candidate finalists' reception in the Administration Building on March 30th from 4:00pm - 6:00pm. Refreshments will be served.

    Date:   Monday, March 30, 2015

    Time:   4:00 pm to 6:00 pm

    Where: Chelan County Administration Building, 400 Douglas Street, Wenatchee

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