Monday, March 31, 2008
Last Monday, Wendy Harris submitted the following testimony regarding the reissued SEPA Determination of Nonsignificance.
Why should regular citizens be concerned? Let's look at this from the neighborhood perspective -
Western Washington University needs additional parking for students. The City and WWU planning staff identify a section of the Happy Valley Neighborhood to site the parking lot. The Happy Valley Neighborhood Plan contains language that prevents parking lots in this section of the neighborhood.
Thanks to the amendments that will be adopted by the City on the 14th of April, the city determines that the parking lot project qualifies as an Essential Public Facility (EPF). (As a designated EPF, this project takes priority over the neighborhood and the City's Comprehensive Plan). With EPF exemptions, the neighborhood association will not be able to stop or even appeal the decision.
I realize that this is pithy material to digest - but try to wade through it.
PUBLIC COMMENT LIMITED TO SEPA ISSUES
To: City Council; Bellingham Planning Department; Mayor; Planning Commission
From: Wendy Harris
Re: City of Bellingham Agenda Bills 017849, 017850, 017851 and 017852
Dear Members of City Council:
I am submitting my 2nd public comment with regard to SEPA issues on the 4 above referenced agenda bills currently under consideration. Reference is made to my prior SEPA comment, sent by email on March 26, 2008, which is incorporated herein. As established below, the re-issued DNS should be withdrawn and a new SEPA Determination of Significance issued, requiring an Environmental Impact Statement. I believe the significance of the issues warranted my time and commitment in drafting such a long and detailed public comment, and I respectfully request your time in reading this submission.
THE RE-ISSUED DNS SHOULD BE WITHDRAWN AND A NEW SEPA DS SHOULD BE ISSUED.
Legislative Proposals That Are The Subject Of SEPA Review Have Not Been Properly Defined In Violation Of WAC 197-11-060(3)
The first proposal noted under the procedurally invalid “re-issued” DNS states that the City of Bellingham Planning and Community Development Department wishes to amend BMC 20.17.020 to “create a list of City Essential Public Facilities as directed by the Bellingham Comprehensive Plan and the Growth Management Act. However, it fails to reveal that the proposed list exceeds the definition of an EPF under City, County and State law, as well as the laws of other Washington Jurisdictions, and thus, cannot be considered an actual list of EPFs.
The GMA requires all local comprehensive plans to include a process for identifying and siting essential public facilities. It also requires the state Office of Financial Management to maintain a list of essential state public facilities. RCW 36.70A.200.
The test for determining what constitutes an EPF hinges on whether the facility is difficult to site. As explained by CTED, “these facilities, while needed by society, often have real or perceived negative impacts on surrounding communities that may make them undesirable neighbors, and increase the complexity and difficulty of siting new facilities or expanding existing facilities.”
Reference in some form to siting hardship is normally included in the definition of EPFs found in Washington City and County codes. Many jurisdictions incorporate the state definition of EPFs in whole, or part, into their local definition. And, in fact, Bellingham currently defines EPFs based on a version of the state definition, which includes the primary criteria of difficulty in siting. BMC 20.17.010. Further, in determining whether a facility is an EPF under Bellingham law, one of the criteria is difficulty in siting. BMC 20.17.030, 060.
The below comparison chart shows the degree of uniformity found in the definition of EPFs in different Washington jurisdictions.
STATUTORY DEFINITION OF ESSENTIAL PUBLIC FACILITIES
BMC 20.17.010: Essential Public Facilities include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020.
WRC 36.70A.020: Essential public facilities include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020.
WCC 16.16.800: “Essential public facilities” means those facilities that are typically difficult to site, such as airports, state education facilities, state or regional transportation facilities, state and local correctional facilities, solid waste handling facilities, and inpatient facilities including substance abuse facilities, mental health facilities, and group homes.
City of Seattle
Municipal Code 23.84.010:"Essential public facilities" means airports, sewage treatment plants, jails, light rail transit systems, monorail transit systems, and power plants.
City of Vancouver
Municipal Code 20.150.040: Essential Public Facilities. Public facilities and privately-owned or operated facilities serving a public purpose that are typically difficult to site. They include but are not limited to: airports, state education facilities, state or regional transportation facilities, prisons, jails, other correctional facilities, and solid waste handling facilities. These facilities are of state-wide and regional significance, as opposed to facilities which only serve Clark County. Therefore, local transit service is not considered an essential public facility. Essential public facilities will be allowed in locations appropriate for the services provided and the people served.
City of Edmond
Municipal Code 20F.40.80-010:Essential public facilities are defined in RCDG 20A.20.050, Definitions. Examples include schools, water transmission lines, sewer collection lines, fire stations, hospitals, jails, prisons, airports, solid waste transfer stations, highways, and storm water treatment plants. Secure community transition facilities as defined in RCDG 20A.20.190 are also included.
Municipal Code 14.01.030:"Essential public facilities" means structures that are typically difficult to site, such as airports, state education facilities, state or regional transportation facilities as defined in RCW 47.06.140, state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities, as defined in RCW 71.09.020.
City of SeaTac
Municipal Code 15.10.249: Essential Public Facility:A facility providing public services, or publicly funded services that is difficult to site or expand and which meets any of the following criteria: meets the Growth Management Act definition of an essential public facility (EPF), at RCW 36.70A.200, as now existing or hereafter amended, is on the State, King County or City list of essential public facilities; serves a significant portion of the County or region, or is part of a county-wide or multi-county service system, and is difficult to site or expand. Essential public facilities include, but are not limited to, the following: airports; State and local correction facilities; State educational facilities; State and regional transportation facilities; landfills; solid waste handling facilities; sewage treatment facilities; major communication facilities and antennas (excluding wireless telecommunications facilities); and in-patient facilities, such as group homes (excluding those facilities covered by the Washington Housing Policy Act), mental health facilities, Secure Community Transition Facilities (SCTF), and substance abuse facilities.
City of Spokane
Municipal Code 11.19.0314: “Essential public facilities” include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities.
The actual list of “EPFs” proposed by the Planning Department was not attached to the re-issued DNS, a copy of which I obtained from a Department of Ecology employee. However, the proposed “EPF” list as referenced in the proposed legislation includes items that are clearly beyond the definition of an EPF under any standard.
Non-EPF proposed list items includes “parks and trail facilities”, “local road, bicycle and pedestrian improvement projects” and libraries. These are not facilities that are considered difficult to site nor has the Planning Department ever alleged this fact. It is clear that the proposed list was drafted not with reference to the definition of an EPF, as asserted, but instead, to include the City’s projected works projects for the next six years, as well as additional work projects reflected within chapters of the City’s comprehensive plan. Thus, the proposal has not been properly defined as required under WAC 197-11-060(3).
The full extent to which this is true can only be realized through review of the proposed “EPF” list. In the below table, I have attempted to determine the specific facilities that would be included in the proposed “EPF” list. The list is poorly drafted, making it difficult to sometimes make this determination. This lack of clarity is obviously troubling. However, the sheer volume of those items that can be specifically identified is overwhelming, and clearly exceeds Bellingham’s statutory definition of an EPF.
Planning Department Proposal for EPF List
(Items in smaller, bold type reflect my attempt to determine with specificity what projects and facilities are included in the proposed EPF list.)
The following list shall constitute the City’s adopted list of essential public facilities:
1. local road, bicycle and pedestrian improvement projects on the City’s adopted “Six Year Transportation Improvement Program” and/or the Transportation chapter of the Bellingham Comprehensive Plan
a. There are 120 bicycle and pedestrian improvement projects listed in the Transportation chapter of the CP, Chapter 2, page T-4; and Chapter 4, pages T-31 through T-66.
2. The potable water distribution and treatment facilities as identified in the Capital Facilities chapter of the Bellingham Comprehensive Plan
a. There is no section in the Capital Facilities chapter of the CP directly corresponding to “potable water distribution and treatment facilities” so it is unclear what this specifically refers to. Chapter 5, Part 2 of the CP, includes a discussion of water supply, but does not specifically list City owned water facilities. This may be a reference to the 15 water projects necessary to maintain LOS during the 2004-2022 planning period. Pages CF-8, 9. However, 23 public works water projects are shown in Map CF.3., covering the same period. Finally, 26 water public works projects are listed in the Capital Facilities Plan summary chart. Chapter 5, page CF-86, 87.
3. The sanitary sewer distribution and treatment facilities as identified in the Capital Facilities chapter of the Bellingham Comprehensive Plan
a. Again, there is a discussion of City sewage treatment in Chapter 5, Part 2 of the CP, but no specific list of “sanitary sewer distribution and treatment facilities.” There are 15 sewer projects listed as necessary to maintain LOS during the 2004-2022 planning period. Chapter 5, pages CF-13, 14. The Capital Facilities Plan summary chart includes 20 water public works projects. Chapter 5, page CF-88.
4. The stormwater distribution and treatment facilities as identified in Capital Facilities chapter of the Bellingham Comprehensive Plan
a. Again, there is a discussion of City stormwater management in Chapter 5, Part 2 of the CP, but no specific list of “stormwater distribution and treatment facilities.” Thus, it is unclear what the Planning Department is referencing. There are 21 stormwater public works projects listed in the capital facilities plan. Chapter 5, pages CF 89, 90.
5. Parks and trails facilities as identified in the Parks, Recreation and Open Space chapter of the Bellingham Comprehensive Plan
a. Identified facilities within this Chapter, which list City, County and State facilities, include:
i. 31 park walking trails,
ii. 59 existing and proposed day hiking trails,
iii. 30 existing and proposed backcountry hiking trails,
iv. 16 existing or proposed shoreline walking trails,
v. 35 existing or proposed freshwater access points,
vi. 34 existing or proposed saltwater access points,
vii. 35 existing or proposed hand carry launch sites,
viii. 9 existing or proposed powerboat launch sites,
ix. 19 existing or proposed marinas,
x. 73 picnic tables,
xi. 25 existing or proposed picnic shelters,
xii. 9 existing or proposed campgrounds,
xiii. 68 existing or proposed bicycle routes,
xiv. 14 existing or proposed off-road mountain bike trails within parks,
xv. 42 existing or proposed day biking trails,
xvi. 25 existing or proposed backcountry off-road mountain bike trails,
xvii. 17 existing or proposed horseback riding trails,
xviii. 24 County and State horseback trails,
xix. 18 on and off lease existing or proposed dog parks and trails,
xx. 56 existing and proposed playgrounds
xxi. 7 existing or proposed skateboard parks
xxii. 45 existing or proposed basketball parks
xxiii. 12 existing or proposed volleyball courts
xxiv. 12 existing or proposed tennis courts
xxv. 9 existing or proposed football and track fields
xxvi. 22 existing or proposed soccer fields
xxvii. 28 existing or proposed baseball/softball fields-youth
xxviii. 8 existing or proposed baseball/softball fields-youth and adult
xxix. 19 swimming pools
xxx. 1 ice rink
xxxi. 27 existing or proposed gymnasiums,
xxxii. 22 existing or proposed physical conditioning facilities
xxxiii. 3 climbing walls
xxxiv. 5 existing or proposed arts and crafts facilities
xxxv. 143 existing or proposed meeting and training rooms
xxxvi. 13 existing or proposed auditorium or theater facilities
xxxvii. 49 existing or proposed daycare and child nursery
xxxviii. 24 before and after school programs and teen centers
xxxix. 1 senior center
xl. 7 existing or proposed museums
xli. 10 nature interpretive centers
xlii. 6 golf courses
xliii. 1 rifle range
xliv. 3 existing or proposed operations facilities
xlv. 44 existing or proposed restrooms
xlvi. 95 existing or proposed environmental conservancy sites,
xlvii. 48 existing or proposed historical conservancy sites
xlviii. existing or proposed railroad conservancy sites
xlix. 54 existing or proposed multi-purpose trails
l. 28 existing or proposed streetscapes
li. 21 artwork trails
6. Fire, police, library and other City government facilities as identified in Capital Facilities chapter of the Bellingham Comprehensive Plan
a. Chapter 5, Part 3 of the CP identifies 7 fire stations. Map CF.7. Assumedly, these are the fire facilities referenced in this provision. It is unclear if this also includes identified fire stations in Whatcom County that are located in Bellingham’s UGA’s and whether a distinction is made for rural stations that have a volunteer staff. It is unclear if this includes fire trucks, or Whatcom Medic One ambulances.
b. Chapter 5, Part 3 of the CP identifies one police station. Page CF-33. It is not clear if facilities include police equipment and automobiles. It is not clear if the Whatcom Sheriff’s Office is included with regard to Bellingham UGA areas. There are 25 police public works projects listed in the capital facilities plan. Chapter 5, pages CF 75. There are 3 police public works projects listed in the capital facilities plan. Chapter 5, pages CF 76.
c. Chapter 5, Part 6 of the CP identifies a main branch library and a Fairhaven sub-branch. Page CF-49.
d. It is unclear what “other City government facilities” are included, but the Capital Facilities chapter of the CP discusses the additional facilities:
i. Public School facilities
ii. Parks, Recreation and Open Space
iv. Bellingham-Whatcom Public Facilities District
v. Depot Market Square
vi. City Public Parking Facilities
vii. City-Port Waterfront Redevelopment
viii. Public Waste Facilities
Another legislative proposal included under the re-issued DNS involves creating a “CAO exemption for Essential Public Facilities and includes performance criteria to examine alternatives and minimize impacts.” However, the CAO exemption proposal reveals the true reason the Planning Department is proposing an “EPF” list. These two legislative amendments, in conjunction, allow the Planning Department to proceed with its pre-existing development plans while effectively ignoring the requirements of the Growth Management Act. Thus, since the CAO amendment proposed, and listed within the re-issued DNS, involves exemptions for EPFs, and in fact, the Planning Department is attempting to exempt Non-EPFs, the proposal has not been properly defined as required under WAC 197-11-060(3).
In support of its proposed CAO amendment, the Planning Department has provided 4 examples of alleged similar CAO exemptions from other jurisdictions. In reality, there is no jurisdiction that even approaches the type of blanket exception for the siting of EPFs within Critical Areas that the Planning Department proposes. A simple, cursory review of the four examples indicates that each of these jurisdictions provide a much higher standard of protection, as follows:
Whatcom County: the County does not, as asserted, exempt EPFs. Activities exempted from the County’s Critical Area ordinance are listed in WCC 16.16.230, and EPFs are not included in this statute. Rather, the County treats EPFs as regulated activities under WCC 16.16.225. That means that EPFs may be sited within Critical Areas when other requirements of the Critical Area siting process, set out in Chapter 16.16, are met. (This is also the current status for siting EPFs within the City. EPFs may be sited within a Critical Area when the siting provisions of BMC Chapter 16.55 are met.) Further, as established above, the County’s definition of EPFs in much more limited than the “EPF” list proposed by the Planning Department.
King County: The blanket exemption applies only to “linear alteration” of Critical Areas, which is defined as something that connects to, or is an alteration to a public roadway, public trail, a utility corridor or other public infrastructure owned by a public utility (i.e., the road or facility already exists), or is required to overcome limitations due to gravity. For nonlinear alterations, the exception to Critical Areas does not include wetlands, (unless allowed under K.C.C. 21A.24.070.A.2.h), aquatic areas and wildlife habitat conservation areas, Critical Area setbacks and Critical Area buffers, and salmnoid spawning areas. Moreover, the nonlinear alteration must not require modification of a Critical Area development standard.
City of Mill Creek: The exemption is limited to streets and utilities proposed by a public agency¸ and the proposal must include measures to compensate for impacts to Critical Area function and values consistent with the City’s Critical Area Ordinance. Further, as established above, the City’s definition of EPFs in much more limited than the “EPF” list proposed by the Planning Department.
City of Tukwila: No EPF is exempted from the mitigation requirements of the City’s Critical Areas Ordinance set out in Muncipal Code Chapter 18.45. With regard to essential utilities, additional protections require restoration to pre-project configuration, and prohibitions against erosion, uncontrolled stormwater or groundwater movement, slides, pollution, habitat disturbance, loss of flood carrying capacity and storage capacity, and excavation or fill detrimental to the environment. Similar levels of protection apply to the different types of EPFs discussed in the Municipal Code.
These clear violations of WAC 197-11-060(3) indicate that not only should these legislative proposals be soundly defeated upon City Council vote, but that the misleading re-issued DNS be withdrawn and a new SEPA DS submitted that accurately reflects the nature of the proposals.
The Environmental Information Considered For The Re-Issued DNS Is Inadequate For Determing Adverse Environmental Impacts In Violation Of WAC 197-11-158(2)(D)
The re-issued DNS cites 4 documents as the environmental information considered: Part D of the DNS checksheet; the July 1, 2004 FEIS for Bellingham, its UGA and Whatcom County urban fringe Sub-area; the 2006 Bellingham Comprehensive Plan, and the City of Bellingham Critical Area Ordinance.
As discussed above, the information in the re-issued DNS is materially misleading and has not been properly defined. Moreover, as set-out in my March 26, 2008 SEPA public comment, this document is procedurally invalid and should not be relied upon for any official purposes.
The 2004 Bellingham FEIS is general in its terms and was not drafted to cover the legislative proposals and related public works actions at issue herein. The FEIS states that, “this is a non-project, programmatic environmental impact statement. Additional environmental analysis will be required as specific development projects are proposed and supplements may be necessary for some of the unanticipated UGA and development regulation changes.” (Last page of FEIS posted on City website.)
It is clear that the legislative change proposed to the City’s CAO, which will have wide sweeping application in conjunction with the proposed “EPF” list, has not been considered within the FEIS. Additionally, the re-issued DNS lists 2 pages of future City essential public facility projects with Critical Area constraints (attachments 2-11 and 2-12), including waste water treatment plant expansions, multi-modal arterial connections and 2.5 million gallon water reservoirs that would be exempted under the proposed legislative changes, none of which was reviewed in the FEIS.
Both the 2006 Bellingham Comprehensive Plan and the Bellingham Critical Area Ordinance are part of the proposed legislative changes, which indicates that environmental impacts resulting from the proposed legislative changes have not been reflected in these documents. This violates WAC 197-11-158(2)(D). Thus, these documents are not an appropriate resource for determining the environmental impact of the proposed legislative changes, nor do they specifically address the connected public works projects discussed above.
As a result, the Planning Department has not done an adequate review of the environmental impact that will result from the proposed nonproject actions and connected project actions. Accordingly, the re-issued DNS does not comply with SEPA requirements and should be withdrawn so that a new DS can be filed and an EIS completed.
The Cumulative Impacts Of The Legislative Proposals Have Not Been Addressed In Violation Of SEPA Rules
Lead agencies are responsible for considering probable significant adverse impacts of planning actions such as adoption and amendments to development regulations. If plans or regulations proposed allow activities to occur that are likely to have significant adverse impacts, those cumulative impacts must be addressed in the environmental review of the planning action.
WAC 197-11-055(2)(a)(i) states that, “the fact that proposals may require future agency approvals or environmental review shall not preclude current consideration, as long as the proposed future activities are specific enough to allow some evaluation of their probable environmental impacts.”
In this case, the Planning Department has included a list of major public works projects that are linked to the proposed legislative amendments, and admits that the siting of these City EPFs could have some impact on natural resources. Moreover, as established above, the scope of public works projects impacted by the legislative proposals is enormous. Despite this, the re-issued DNS fails to address the cumulative environmental impacts of the legislative proposals.
The Planning Department’s failure to address cumulative impacts also violates WAC 197-11-060(3)(b), which requires proposals that are closely related to each other to be evaluated in the same environmental document. WAC 197-11-060(4)(c) states that, “agencies shall carefully consider the range of probable impacts, including short-term and long-term effects. Impacts include those that are likely to arise or exist over the lifetime of a proposal, or depending on the particular proposal, longer.” Under WAC 197-11-060(4)(d), “a proposal’s effects include direct and indirect impacts caused by a proposal, as well as the likelihood that the present proposal will serve as a precedent for future actions.” (It should be noted that the Bellingham Municipal Code has specifically adopted these SEPA rules in BMC 16.20.040.)
The re-issued DNS fails to comply with these SEPA rules because it does not address the cumulative environmental impacts that will result from the submitted nonproject actions. The re-issued DNS should be withdrawn and a new DS issued so that the EIS process can be initiated, allowing such cumulative effects to be addressed.
The Planning Department’s Proposed Mitigation Provisions Are Too Vague And Subjective To Be Effective
The proposed CAO amendment as drafted provides only the most basic description of mitigation standards and fails to define the meaning of the terms that are used. For example, the amendment states that the proposed alteration of the Critical Area must be the “minimum necessary to accommodate the essential public facility.” How this can be applied in specific and quantifiable terms is not addressed. As a result, there is no clear standard that can be reviewed and enforced and the sole discretion will be left to the Planning Director. The same is true of the requirement that the alteration of the Critical Area is the “minimum necessary to accommodate the essential public facility”, or that construction of the EPF “minimizes adverse impacts.”
The legislative proposals fail to address how these standards will be enforced and by whom. Does the City intend to use its own staff resources to inspect alteration of the Critical Areas? The City is already having fiscal problems, which is the very motivation for the legislative proposals under SEPA review. Further, since the projects resulting from these legislative proposals are public works projects, the City will be, in effect, policing itself, which could raise conflict of interest problems. Further, the City does not have a good history of enforcing its own regulations and ordinances.
The mitigation provisions fail to state how terms such as “no net loss” and “best available science” are to be defined. While one might expect that the common definition set out in the GMA is applicable, given the Planning Department’s unconventional interpretation of an EPF, as reflected in its legislative proposal, this can not be taken as a given. At a minimum, a clear and concrete definition of the mitigation terms used is necessary for enforcement purposes.
As a result of these problems, the proposed mitigation provisions are ineffective and do not offer an objective level of protection to the impacted Critical Areas. Under these facts, a DNS is clearly erroneous and should be revoked. A DS should be issued along with initiation of the EIS process.
The Re-Issued DNS Includes Unrelated Legislative Proposals That Require A Separate SEPA Review
The two legislative proposals that I have discussed in this public comment, creation of an EPF list and amendment to the CAO, are clearly related and thus, appropriate to include within a single SEPA review. However, the re-issued DNS also includes two unrelated legislative proposals that require separate consideration. The first such proposal involves amendments to the CAO and the SMP in order to allegedly comply with the SMA, and the second proposal amends the CAO with regard to measuring steep slopes and corrects typographical errors. These two proposals are not sufficiently connected to the other two proposals to justify the inclusion under a single SEPA review process.
The proposed legislation to create an EPF list and amend the exemptions to the CAO, conjunctively, will have significant adverse environmental impact that has not been considered within the re-issued DNS. The re-issued DNS should be withdrawn and instead, a DS should issued as an EIS is clearly necessary under SEPA rules. Unless an EIS in completed, the proposed legislation will effectively destroy the current protection provided to Critical Areas under Bellingham law, and will violate the policies reflected in the City’s Comprehensive Plan.
Thank you for your consideration on this matter and for the opportunity to present my public comment.
– James Madison, 1822. (Quote taken from the Washington State Attorney General Rob McKenna's website).
In regards to recent questions about the City of Bellingham’s commitment to upholding and protecting the public’s right to participate in government’s decisions. I find myself shaking my head and wondering - is it even remotely possible for City officials to reconcile the inherent, built-in conflict between the practical realities of politics, personal ambition, campaign paybacks and the democratic ideal of selfless public service?
Why do I ask? A local resident, Wendy Harris, recently submitted both written and verbal testimony regarding the City’s lack of compliance with the state-mandated SEPA DNS review process. She asserts that the City is required to withdraw the reissued DNS and send all four Agenda Bills 017849, 017850, 017851, and 017852 back to the Planning Commission.
It's been several days now, and Ms. Harris has not received so much as the courtesy of a phone call regarding her concerns about the SEPA DNS review process. Not from her City Councilor, not from the Mayor's office, not even from Tim Stewart.
Public office is a public trust - and "accountability" is the essence of public trust.
Laws and rules are appropriate when they concern the use of tax dollars, publicly owned property, facilities, and influence. Laws are needed to establish the minimum norms of behavior, clarify the responsibilty of government officials and staff, and to prevent abuse of public office.
Upholding the rules for public meetings isn’t an arbitrary decision. In fact, there is no surer way to guarantee a front page scandal than violations of the law, even technical ones. Thus, our elected officials and staff must not only understand public meeting rules and laws, they are required to enforce them.
Hypocrisy or inconsistency in applying the rules, even on small matters; can destroy the public’s trust and impede a public official’s ability to exercise leadership in the future.
It is imperative that elected officials understand the roles of their respective offices and their responsibility to respond openly and honestly to inquiries from members of the public. The City may not agree with Ms. Harris's position on the SEPA DNS, but refusing to even politely acknowledge her concerns about process/procedure is contemptible.
There are city and state laws that legally define a council member and mayor’s role; the role of the public and the rules for how public meetings are conducted.
Trust is a precious commodity in public service. Once lost, it's nearly impossible to regain. If the Council continues to ignore state and local meeting rules, then regular citizens like Mr. Harris might as well stay at home.
The personal rewards for public service can be tremendous - not monetarily - but by being able to contribute to the betterment of the community by having the opportunity to meet and work with many diverse, talented and dedicated individuals.
Public officials and staff should affirm the dignity and worth of the services provided by government and try to maintain a constructive, non-judgmental and practical attitude toward constituents and local issues.
Nor have I received a response to my request for information regarding the City's appeals process. (So much for peace of mind, accountability and transparency).
Fortunately, Attorney General Rob McKenna is working very hard to ensure that local governments understand and comply with laws and rules that govern public meetings. I'm including copies of two recent press releases, for readers to review.
Attorney General's Press Release(s) are attached:
OPINION: Government can be complicated, sunshine shouldn’t be
By Attorney General Rob McKenna
Special to The (Vancouver) Columbian for Sunshine Week
Tuesday’s Columbian brought news that the City of Ridgefield would be facing a lawsuit for alleged violations of the Open Public Meetings act. The city is one of five targeted for such suits this week, in honor of National Sunshine Week.
As both Attorney General and as a former King County Council member, I have always believed in the core principle of transparency in government as a means of building trust and demonstrating accountability.
In today’s complicated 24-7, high-tech world, maintaining transparency has become more complicated and time-consuming.
But that’s not a reason to abandon our goals. Rather, it becomes more important than ever to manage our records-tracking systems and to develop new ways to use technology to make government even more transparent.
According to The Columbian, the Ridgefield city council is “accused of twice illegally retreating into closed-door executive sessions in 2006.”
The Ridgefield City Council members are not the only ones facing concerns about improper executive sessions. The state Auditor has noted more than 450 instances over three years where executive sessions were an issue in their audits of local governments. Executive sessions are meetings where government officials meet behind closed doors to discuss highly sensitive issues such as personnel issues, real estate transactions and other issues as allowed under the Open Public Meetings Act.
This session, I joined Auditor Brian Sonntag in requesting legislation that would have required government entities to record executive sessions. Using technology to our advantage, Auditor Sonntag and I recommended capturing the proceedings in executive sessions on a digital audio recorder.
Such a law would provide government decision-makers some protection against claims of improper executive sessions, saving thousands of dollars in legal fees and arguments when disputes arise. A digital auditor recorder with more than 130 hours of storage and software to download the audio to a secure server costs as little as $60 and takes up as much room as a candy bar. Such a small investment could help assure government accountability and provide the public with peace of mind.
While the Legislature chose not to approve this idea this session, I expect Auditor Sonntag and I will pursue this again in the future.
Technology can also reduce the cost of transparency and support sustainability by allowing governments to search and prepare public records electronically. The Attorney General’s office has developed model rules on electronic records and developed new technology to better store and retrieve e-mail.
The electronic model rules help governments reduce the amount of paper documents they print for requestors by giving guidance on providing records electronically. With technology, thousands of pages of documents can be provided in an electronic format that helps reduce the amount of paper used and allows the requestor to more easily search for the information they are seeking.
The Attorney General’s Office has also implemented a new e-mail storage and retrieval system which resulted in national recognition for our IT director in Government Technology. This technology allows the agency to not only search and retrieve e-mail text but documents attached to that e-mail as well.
The recent Sunshine Week poll indicates that more than 90 percent of respondents feel open government is important both at the state and local levels. Let’s use technology in our favor and increase transparency for those we serve.
Attorney General Press Release:
OPINION: Wins and losses in the battle for transparency
By Attorney General Rob McKenna
Special to the Yakima Herald-Republic for National Sunshine Week
A recent National Sunshine Week poll indicates that more than 90 percent of respondents feel open government is important both at the state and local levels.
The question is how do our state and local government officials feel? Based on the outcome of the most recent legislative session, the answer is mixed.
Led by the American Society of Newspaper Editors, Sunshine Week runs March 16 through 22. An annual event, Sunshine Week emphasizes the public’s right to know what government is doing, and why.
As both Attorney General and a former King County Council member, I have always believed in the core principle of transparency in government as a means of building trust and demonstrating accountability.
Advancements in technology are providing more tools to help us achieve greater government transparency, but these tools need the support of government officials if they are to be truly effective.
This session, I was proud to support a new budget transparency measure requested by the Washington Policy Center and approved during the recent Legislative session. Senate Bill 6818, supported by every member of the Yakima legislative delegation, directs the state Office of Financial Management to develop a searchable Web site to help the public identify how the state is spending their money. Citizens need to be informed about the cost of government and where their tax dollars are being spent.
Now awaiting the governor’s signature, this bill will help the public quantify the priorities they have for government and better understand the choices government makes when revenues are tight. Score one point for open government.
As the Yakima Herald-Republic has reported, I also joined Auditor Brian Sonntag in requesting legislation (HB 3292) that would have required government entities to record executive sessions. Emphasizing technology once again, Auditor Sonntag and I recommended using a digital audio recorder to capture the proceedings in executive sessions. Those are meetings where government officials meet behind closed doors to discuss highly sensitive issues such as personnel issues, real estate transactions and other issues as allowed under the Open Public Meetings Act.
The state Auditor has noted more than 450 instances in just three years where executive sessions were an issue in their audits of local governments. The law is clear that officials must state why they are calling an executive session, and limit its duration to a fixed period, to help assure transparency.
A digital auditor recorder with more than 130 hours of storage and software to download the audio to a secure server costs as little as $60 and takes up as much room as a candy bar. Such a small investment could help assure government accountability and provide the public with peace of mind. At the same time, such a law would provide government decision-makers some protection against claims of improper executive sessions, saving thousands of dollars in legal fees and arguments when disputes arise.
Despite strong support from editorial boards like the Yakima Herald-Republic and by your local legislators, this bill did not pass. That’s one point against open government. I expect Auditor Sonntag and I will continue to pursue it in the future.
Wins and losses in the field of open government should be carefully tallied. Every citizen should know where their elected leaders stand on these issues and should urge them to support transparency at every opportunity.
That is the spirit of Sunshine Week.
AG Editorial: http://www.atg.wa.gov/pressrelease.aspx?id=19386
Sunday, March 30, 2008
The PDC reviews many different kinds of complaints from legislators, citizens and students each year. Some complaints are compaign-related, others are not.
For example, the law offices of Carney, Badley and Spellman in Seattle recently filed a complaint on behalf of five Bellevue Community College (BCC) students who were denied entry to a Maria Cantwell Campaign event held at BCC. And, State Representative Glenn Anderson recently filed a complaint against the University of Washington pursuant to RCW 42.17.190, which prohibits expenditure of public funds for lobbying, unless such lobbying is to provide information pertaining to official agency business or is advocating the official position of the agency.
Bellevue Community College
The complaint was filed pursuant to RCW 42.17.130, which prohibits "any employee" of any public office and "any person appointed to or employed by any public office" from authorizing the use of the facilities of a public office or agency directly or indirectly, for the purpose of assisting a campaign for election of any person to any office..." The PDC opened a formal investigation of the Complaint in January of 2008.
Background: On October 26, 2007, officials for Bellevue Community College allowed the Maria Cantwell for Senator Campaign to rent and use the College gymnasium for a rally in support of Senator Cantwell's campaign. Senator Obama appeared at the rally and spoke in support of Senator Cantwell's re-election.
Although the Cantwell campaign informed the college that all students would be welcome to attend the rally, five students were refused permission to enter because they were wearing T-shirts bearing the name of the Republican candidate for Senator.
Although college officials urged the Cantwell Campaign to allow the five students to attend, the Campaign staff people refused. College officials told the students they were powerless to do anything because the Cantwell Campaign had rented the facility. Thus, the administration contended that the Cantwell Campaign could exclude anyone they wanted to exclude.
Legal counsel for the five BBC students contends that it is illegal for the college to rent the gym to the Cantwell Campaign for the purpose of political activities, but the College disagrees.
The five students who were excluded from the event are seeking an enforcement action against the college and the officials responsible for renting the gym to the Cantwell Campaign.
This case raises some interesting questions about the use of publicly owned facilities for campaign related events. I'm sure the Port of Bellingham, the City of Bellingham and Whatcom Coummunity College will be watching this complaint with interest. If the PDC finds that Bellevue Community College violated 47.17.130, future rentals of publicly owned facilities could be limited to non-campaign related events.
Alleged Violation/Bellevue Community College: http://www.pdc.wa.gov/archive/compliance/complaints/pdf/2008/08-105.pdf
The University of Washington
Background: Washington State Representative Glenn Anderson recently filed a complaint against the University of Washington for an alleged violation of RCW 42.17.190, which prohbits the expenditure of public funds for lobbying unless such lobbying is to provide information pertaining to official agency business or is advocating the official position of the agency. The PDC opened a formal investigation in January of 2008.
Rep. Anderson alleges that the creation of a brochure called "Taking Measure: Does Modern Math Education Add Up?" by the College of Education of the University of Washingtion constitutes expenditure of public funds for lobbying and is neither official business of the University of Washington nor is it advocating an official position of the agency on a matter that affects it directly.
Rep. Anderson states that examples of bias and advocacy are present throughout the document and that it is a violation for the University to lobby the legislature to endorse one position. Second, he alleges that the document is not objective, unbiased research. In his opinion, the brochure advocates one position and suports a particular perspective in the teaching of mathematics, and, hence is lobbying legislators to support one set of mathmatics standards over another.
"Are these trivial matters?" asks, Rep. Anderson. No, "These are pivotal education and public policy and political issues. They are also political issues being debated right now before the legislature."
Representative Anderson is the Ranking Minority Member of the House Higher Education Committee. He also sits on the K-12 Education Committee and the Appropriations Committee.
Alleged Violation/University of Washington: http://www.pdc.wa.gov/archive/compliance/complaints/pdf/2008/08-108.pdf
I hope you enjoyed taking a closer look at the diverse roles the PDC plays in regulating the activities of public agencies.
Thursday, March 27, 2008
If you value open, transparent government - now is the time to step up to the plate and demand that the City of Bellingham observe public meeting requirements, including SEPA review requirements - BEFORE - public hearings are scheduled.
Background: The Washington State Environmental Policy Act (SEPA) provides a way to identify possible environmental impacts that may result from governmental decisions. These decisions may be related to issuing permits for private projects, constructing public facilities, or adopting regulations, policies or plans. Information provided during the SEPA review process helps agency decision-makers, applicants, and the public understand how a proposal will affect the environment. This information can be used to change a proposal to reduce likely impacts, or to condition or deny a proposal when adverse environmental impacts are identified.
In her conclusion, Ms. Harris states, "it is important that City Council uphold the requirements of WAC 197-11-335(3) (a) and direct the Planning Department to withdraw the "re-issued" DNS. This will reassure the public that rules are enforced in a fair manner, regardless of status or position, and that the City adheres to the same rules that it expects its citizens to follow."
Thank you, Wendy -
----- Original Message -----
From: Wendy Harris
To: firstname.lastname@example.org ; email@example.com ; firstname.lastname@example.org
Sent: Wednesday, March 26, 2008 8:21 PM
Subject: Public Comment on SEPA procedural defects
PUBLIC COMMENT LIMITED TO SEPA ISSUES
City Council Public Hearing Scheduled for March 31, 2008
From: Wendy Harris
Re: City of Bellingham Agenda Bills 017849, 017850, 017851 and 017852
Dear Members of City Council:
I am submitting public comment with regard to SEPA issues on the 4 above referenced agenda bills currently under consideration. As established below, there are fatal procedural defects in the SEPA process that require the re-issued DNS be withdrawn.
On March 17, 2008, the City Council held a public hearing on 4 proposals submitted by the Department of Planning and Community Development (“Planning Department”), set out in Agenda Bills 017849, 017850, 017851 and 017852. I was unable to find a SEPA determination with regard to any of these items and sent an email inquiry to the state. I also copied this email to the Planning Department. On the evening of the hearing, Lindsay Albin, the Department of Ecology Disclosure Coordinator for the Bellingham office, confirmed by email that she had no record of a SEPA determination for these items.
This contradicted information contained in a Planning Department staff report prepared for the Planning Commission, who held a prior public hearing on February 7, 2008. The staff report, at least with regard to Agenda Bill 017851, advised that a SEPA official issued a Determination of Non-significant Environment Impact, filed as SEP2008-00002. (The staff report for Agenda Bill 017849 leaves the SEPA document number blank, and the staff reports for the other two agenda bill items are not posted on the Planning Commission website.) On the basis of the staff reports, and in contradiction of public commentary by three people, all of whom requested additional time for more public input, the Planning Commission forwarded a recommendation that City Council approve all four agenda bills.
The Planning Department also prepared staff reports for City Council. The reports for all four agenda bills again advised that a SEPA official issued a Determination of Non-significant Environment Impact, filed as SEP2008-00002. This statement was included in the ordinance language drafted by the Planning Staff and City Attorney for signature by the City Council and the Mayor.
At the March 17, 2008 City Council hearing on these four agenda bills, Tim Stewart, Director of Planning and Community Development, advised that there was a SEPA technicality that had been corrected earlier that morning. He requested that the public hearings proceed on all but the SEPA issue. He asked Council to table their vote on the four agenda bills until expiration of the 15 day SEPA comment period and a March 31, 2008 public hearing, limited to SEPA issues. I have no recollection of Mr. Stewart elaborating further on the SEPA problem.
I later determined that on Monday, March 17, 2008, an initial SEPA DNS, entitled “Re-Issued Determination of Non-Significance”, SEP2008-00002, was signed and filed by Tim Stewart, acting as the responsible officer under SEPA rules. The “re-issued” DNS covered all four agenda bills.
THE “RE-ISSUED” SEPA DETERMINATION OF NON-SIGNIFICANT ENVIRONMENT IMPACT IS FATALLY FLAWED DUE TO PROCEDURAL DEFECTS
The DNS Was Not Provided To The Planning Commission As Required By Law
The proposals by the Planning Department require amendment to the Bellingham Municipal Code and affect land use and development regulations. (See, for example BMC Chapter 20.17 regarding EPFs.) This requires a Type VI review process. BMC 21.10.040 I. As part of this process, proposals must first be reviewed by the Planning Commission before proceeding to City Council for consideration. The Planning Department is required to provide the DNS or EIS to the Planning Commission, along with a staff report. BMC 21.10.150.C. Clearly, since neither a DNS nor EIS existed at the time the Planning Department provided its staff report to the Planning Commission, a DNS was not provided to the Planning Commission and the procedural requirements for a Type VI review have not been met.
Accordingly, it is inappropriate for these four agenda bills to proceed forward for City Council review. Rather, another public hearing should be scheduled by the Planning Commission once the Planning Department has complied with the appropriate SEPA rules, and has provided the Planning Commission with a valid SEPA document (i.e., not “re-issued”). (As a side note, even under a Type V-A review process, which the Planning Department may attempt to assert is applicable, a SEPA threshold decision is required under the procedures set out in BMC 21.10. 220, such that fatal procedural flaws still exist under SEPA rules.)
On a more substantive level, it is disconcerting that the Planning Commission would forward the four agenda bills with a recommendation for approval without any review of the SEPA DNS, particularly when the recommended proposals concern development within critical areas designated under the GMA. This is made even more disturbing by the fact that the 3 people who testified at the public hearing represented different interests within the community and yet, all shared concerns about the rushed manner in which this was being handled, and the lack of public awareness and input into such important legislative proposals. All three people requested additional time for review and public comment. The glaring procedural defect in this case, coupled with the Planning Commission’s failure to hear what was being said at the public hearing, suggests that there may be significant problems with the way the City is conducting its affairs and whether or not public testimony is actually being considered by public officials.
If the City wishes to ensure public compliance with the myriad of rules applicable to obtaining various City permits, and if the City desires public involvement in our local government, it is imperative that the City enforce its own laws, and treat public hearings as more than a meaningless formality. City Council can take a first step to encourage this by recognizing that the failure to provide the Planning Commission with a SEPA DNS is a fatal procedural defect that must be corrected before these agenda bills can move forward.
SEPA Rules Require A DNS Procured By Misrepresentation To Be Withdrawn
The Planning Department materially misstated facts when they asserted that a SEPA Official issued a DNS for all four agenda bills, and further gave this misinformation added legitimacy by citing a specific SEPA number (SEP2008-00002) for the non-existent document. I can only wonder if this problem would have been discovered when it was had I not copied the Planning Department on my SEPA email to Ecology.
Certainly, this error was not discovered at the time of the Planning Commission hearing, and no doubt, the false assurance that there was a properly issued SEPA DNS aided the Planning Commission in its decision to forward the agenda bills to City Council with a recommendation for approval.
Had this material misrepresentation not been discovered before the City Council hearing on March 17, 2008, there would have been a vote on the 4 agenda bills, and a City Council member might have relied upon this false information in voting in favor of the proposals. It is unknown whether this false information satisfied the concerns of local residents, who might otherwise have testified at a public hearing on the agenda bills.
However, once this false information was uncovered, the Planning Department responded by simply filing a “Re-Issued DNS.” Overlooking the logical fallacy of re-issuing a document where no original document exists, in attempting to revise the falsely represented SEPA DNS SEP2008-0002, the Planning Department violated a SEPA Rule. Under WAC 197-11-335(3) (a), a lead agency should withdraw a DNS procured by misrepresentation or lack of material disclosure. WAC 197-11-335(3) (a). Since the “re-issued” DNS simply furthers the lack of material disclosure that no DNS previously existed, it follows that the “re-issued” DNS is fatally flawed and must be withdrawn.
It is important that City Council uphold the requirements of WAC 197-11-335(3) (a) and direct the Planning Department to withdraw the “re-issued” DNS. A message will be sent to the public that rules are enforced in a fair manner against everyone, regardless of status or position, and that the City itself adheres to the same rules that it expects its citizens to follow. Moreover, this will be a message to Mr. Stewart and the Planning Department that playing fast and loose with SEPA rules is not acceptable and that strict compliance and full disclosure is required in the future.
The “re-issued” SEPA Determination of Non-significant Environment Impact is fatally flawed due to procedural defects and should be withdrawn. The affected agenda bills address important environmental issues regarding protection of critical areas and may have a large future impact on the City’s natural resources. Therefore, it is crucial that all SEPA provisions are fully and properly complied with. Furthermore, the general public will view the City Council as condoning the actions of the Planning Department in providing materially false SEPA information unless corrective action is taken.
I believe there are also substantive problems with the revised DNS, but I will address those in a separately submitted public comment. Thank you for allowing me to provide this public comment with regard to SEPA issues for Agenda Bills 017849, 017850, 017851 and 017852, currently before the City Council for vote.
Ms. Harris's comments to City Council at March 17th Public Hearing re: AB 17849:
CITY COUNCIL PUBLIC HEARING held on 3.16.08
From: Wendy Harris
Re: COMMENT TO AB17849:
Amendment to Land Use Code to Add a List of Essential Public Facilities.
Dear City Council Members:
There is no present need to amend the Bellingham Land Use and Development Code in order to create a list of designated Essential Public Facilities (“EPF”) as proposed by the Planning Department. Such a list is duplicitous of existing city codes that clearly define EPFs, and thus, would only create more unnecessary, technically complex laws. More importantly, such a list is being requested for the purpose of avoiding the City’s obligations to comply with and protect the critical areas mandated by the Growth Management Act (“GMA”) and the Shoreline Management Act (“SMA”).
The GMA requires Bellingham to identify and site EPFs. However, nothing within this obligation requires codification of a specific list of EPFs (although the GMA does require that the office of financial management maintain a list of those EPFs likely to be built within the next 6 years). Moreover, Bellingham already identifies and sites EPFs in conformity with GMA requirements. Currently, there are at least two provisions of the Bellingham Municipal Code (“BMC”) that define Essential Public Facilities:
BMC 20.17.010 defines an EPF, by reference to the Growth Management Act provision, (RCW 36.70A.040), as:
facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, (emphasis added), state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020.
BMC 20.08.020.E.(2), a second, more local definition, which still incorporates reference to the GMA, defines an EPF as:
Public facilities that may be difficult to site, but are considered essential for the community and are included under RCW 36.70A.200 and the types of public facilities that Bellingham may consider to be Essential Public Facilities under BMC 20.17.020. Essential Public Facilities under this definition are facilities, conveyances, or sites that are: (1) used to provide services to the public; (2) delivered by government agencies, private or non-profit organizations under contract to or with substantial funding from government agencies, or private firms or organizations subject to public service obligations; and (3) necessary to adequately provide a public service.
Pursuant to BMC 20.17.030, the City provides a siting process for any facility determined to be eligible as an EPF, even where it is not a permitted or conditional use under the Bellingham Land Use Development Ordinance. The criteria for granting an application for a proposed EPF requires consistency with the Bellingham Comprehensive Plan, review of its environmental impact, and compliance with applicable State siting and permitting requirements (which would include the GMA). Additionally, provisions for various ordinances are also available. See BMC 20.17.060. BMC 20.17.020 further authorizes, but does not require, the City to establish a list of EPFs pursuant to existing State and County definitions of EPFs.
Thus, although Bellingham law complies with the GMA requirements for identifying and siting EPFs, provides clear legal standards of what constitutes an EPF, and allows any facility that meets the definition of an EPF to be treated as such, the Planning Department requests creation of a specified list of EPFs. The reason for this request is that the proposed EPF list would include items, such as local roads, bicycle and pedestrian improvement projects, parks and trails, libraries, and Fire and Police stations, that exceed the general scope and nature of EPFs defined under State law. However, creation of this list would allow the City to avoid the expense and inconvenience of complying with the normal GMA and SMA mandates for protecting critical areas.
As the GMA and BMC make clear, EPFs consist of facilities that most residents object to placing within their neighborhood, and as such, are difficult to site. For example, with regard to transportation facilities, a primary concern motivating the Planning Department, the GMA definition of EPFs, as set out in RWC 36.70A.200, references RWC 47.06.140, which are facilities and services of statewide significance, including interstate highways, interregional state principal arterials including ferry connections that serve statewide travel, intercity passenger rail services, and intercity high speed ground transportation, all of which remain under the ultimate authority of the Washington State Department of Transportation.
Transportation facilities of statewide significance, which few residents would desire in their neighborhood, are distinguishable from improved and extended local roads, parks and trails that many residents would desire in their neighborhood. This exemplifies why including such items on the proposed list would not to the general definition of an EPF under State or local law. This is made even more apparent by the fact that the requested list of EPFs coincides with development projects currently in the works, or planned for the near future, all of which involve critical areas. The Planning Department readily admits that without a critical area exemption for EPFs, some of these planned projects may be too expensive to complete.
While I empathize with the financial restrictions that the City is facing, it was exactly because of these types of predictable local issues that the State promulgated the GMA and the SMA. It was and is the intention of these Acts to provide for the long term protection of our State and local resources in the face of short term local pressures.
Accordingly, authorizing the creation of the requested EPF list is not only legally unnecessary and unwise, but could result in irreparable harm to our critical areas and buffers in violation of the GMA and SMA.
Thank you for your consideration on this matter and for the opportunity to present my public comment.
Comments from Ms. Harris at March 17th Public Hearing regarding AB 17850
CITY COUNCIL PUBLIC HEARING held on 3.17.08
From: Wendy Harris
Re: COMMENT TO AB17850:
Exempting Essential Public Facilities from Bellingham’s Critical Areas Ordinances.
Reference is made to my public comment regarding AB17849, which is incorporated herein. The Bellingham Planning Department is requesting an exemption to the processing and permitting procedures applicable to construction of Essential Public Facilities (“EPF”) within Critical Areas and buffers created pursuant to the Growth Management Act (“GMA”) and the Shoreline Management Act (“SMA”).
This represents an attempt by the Planning Department to avoid its legal, but expensive obligations to protect Critical Areas and buffers while planning for, and accommodating growth. As a result, the requested exemption largely ignores the purpose and intent of designating Critical Areas and buffers, and may result in irreparable harm.
The Planning Department argues that this request is not really an exemption since Bellingham law will still require EPFs to meet strict alternative performance standards. However, review of the alternative standards reveals that they are not objective and quantifiable, but subjective and weak.
Under the first alternative standard, the proposed facility must meet the City definition of an EPF and appear on the City’s list of EPFs. However, as discussed in my public comment regarding AB17849, the proposed list of EPFs, was, in actuality, drafted to incorporate current and pending EPF projects. Moreover, the Planning Department’s requested list, by definition, generally exceeds the usual type of facilities contemplated under the GMA, (i.e., those hard to site) and by their own admission, is motivated by the desire to save money.
The language in the second alternative performance standard is unclear and susceptible to subjective interpretation to a degree that renders it rather powerless. Under the second alternative standard, the exempted activities “shall use reasonable methods to avoid potential impacts to Critical Areas and their buffers”, upon threat of required mitigation. This language is not only unduly vague, but does not equate to a “no net loss” standard, since “any incidental damage to, or alteration of, a Critical Area that is not a necessary outcome of the exempted activity shall be restored or replaced.”
Finally, the third alternative standard requires that all exempted activities “be conducted using the best management practices that result in the least amount of impact to Critical Areas”, again upon threat of required mitigation, and additionally, while under City “observation.” However, given the admitted resource problems facing the City, and its prior history on enforcement of environmental standards, it may be problematic for the City to be successful in its efforts to ensure compliance with best management practices.
It is noteworthy that the GMA requires the siting of EPFs, but does not require that they be sited within Critical Areas. The City of Bellingham did not adopt exemptions for the citing of EPFs within its CAOs, (nor were they legally obligated to do so). However, Chapter 16.16 of the Bellingham Municipal Code (“BMC”), pertaining to Critical Areas, does allows for the siting of EPFs through the normal Critical Area permit process, a process created to ensure adequate protection of our Critical Areas. BMC 16.55.070 states that:
Any proposal to alter any Critical Area and/or required buffer including, but not limited to clearing, grading, draining, removal of vegetation, construction of buildings, facilities, utilities and related infrastructure shall require a Critical Area permit unless expressly exempted as provided under section 16.55.080.
There is no express exemption for EPFs under BMC 16.55.080, and further, BMC 16.55.450.B states that EPFs shall not be sited within geologically hazardous areas unless there is no other practical alternative.
Simply put, the Planning Department wants to extend San Juan Boulevard through a number of wetlands and creeks; construct a multi-modal arterial connection at the corner of Birchwood and Squalicum Parkway, which is surrounded by wetlands; construct a Yew Street reservoir through steep slopes and wetland; expand Post Point treatment plant into Critical Areas near the lagoon and bay, and expand the water treatment plant into the Critical Areas and steep slopes surrounding Whatcom Creek. They want to build master planned facilities at Squalicum Creek Park (phase 2) located within the Squalicum Creek buffer, and public trails through wetlands and buffer areas. And they want to do all of this while avoiding the financial expense and environmental protection that results from following the normal Critical Area permitting process.
This negates the very purpose for which the GMA and SMA were implemented. Critical Areas were mandated by the State to counter the local growth and development pressures that are at the very heart of this current matter, and which have already resulted in destruction and loss of many of the natural resources within our City and County. Accordingly, I call upon the City Council to uphold and enforce Bellingham’s Critical Areas Ordinances by refusing to approve the requested EPF exemption in the form presented here tonight.
Thank you for your consideration of this matter and for the opportunity to present my public comment.
Additional background information can be found:
Department of Ecology Register: http://apps.ecy.wa.gov/sepa/query2.asp
SEPA Guide for Citizens: http://www.ecy.wa.gov/programs/sea/sepa/citizensguide/citizensguide.htm
City of Bellingham Municipal Code: http://www.cob.org/web/bmcode.nsf/CityCode?OpenView
Latte Republic Commentary:
Ms. Harris has covered all of the procedural points, leaving the City only one logical path of action: rescind the DNS, start over, then return to the Planning Commission.The re-issue of the DNS raises substantive questions: 1) How many critical areas would be impacted by this decision? 2) How do staff decision designating EPF's get elevated to equal standing of legislative designations?
The adoption of these amendments as written will be remembered as the worst abdication of legislative power in the history of Bellingham.
Wednesday, March 26, 2008
[RCW 42.17.010(10)] The above quotation is from the policy provisions of the Open Government Act, better known as the Public Disclosure Law, which aptly summarizes both the impetus for and the purpose of the statute.
History: (Excerpt from PDC site).
"The origin of Washington's disclosure law can be traced to the efforts of concerned citizens who came together in 1970 believing that the public had the right to know about the financing of political activity in this state. In 1971, following an unsuccessful attempt to generate legislative action and with minimal success in 1972, those concerned citizens who now call themselves the Coalition for Open Government (COG), turned to the people. In order to place Initiative 276 on the November 1972 ballot COG gathered nearly 163,000 signatures and done so in record-breaking time. 72 percent of voters approved Init 276 which then became law January 1, 1973. In 1992, to address contribution limits and other campaign restrictions reform-minded voters passed a comprehensive campaign in Washington State where over 72% of the voters supported reform. "
I have published copies of the Public Disclosure Commission Complaints filed by myself and Professor Todd Donovan so people can see for themselves what a complaint is about.
PDC filings are financial reports. PDC complaints are a citizen review of those financial reports. The purpose of the reports is to allow voters to independently determine if they want to support a political candidate after reviewing the sources of his/her funding.
It's just numbers folks.
And, I have to wonder why a simple financial audit of donations and expenditures would create the amount of outrage and anger among Pike supporters that it has? Why the name calling, labels and accusations of wrong doing? Why vandalism? Destruction of personal property? What is the real purpose behind these personal attacks?
Hundreds of PDC complaints have been filed by candidates, political party officers, elected officials and campaign supporters over the last 34 years. The filing of campaign-related complaints is deeply woven into the political fabric of this state and nation.
The majority of Washington Candidates respond to PDC complaint filings with grace and maturity.
Very few candidates lash out in anger claiming that they are a "victim" of the individual or organization that has filed the complaint. (Sure, a snide comment or two, but most candidates accept and understand that public disclosure review is part of the election process). The Public Disclosure Commission complaint system is a part of a carefully constructed system of checks and balances that is designed to provide all candidates with a level playing field.
The Public Disclosure Commission relies on citizen complaints to assist them in their efforts to ensure that campaigns are conducted according to the laws of the state of Washington.
I hope you find the enclosed Complaints interesting - I left out Tim Paxton's complaint because Sam Taylor has the link posted on his blogs.
Sunday, March 23, 2008
Address redacted to protect privacy
Mr. Phil Stutzman
Director of Compliance
Public Disclosure Commission
711 Capitol Way #206
Olympia, Washington 98504-0908
Dear Mr. Stutzman:
Regretfully, my review of Bellingham Mayor Daniel V. Pike’s E-mail correspondence received from a public disclosure request submitted to the Skagit County Council of Governments have revealed what appear to be numerous violations of state campaign finance disclosure rules, including RCW 42,17, which states in part at (130), “ No elective official nor any employee of his/her office nor any person appointed to or employed by any public office or agency may use or authorize the use of any of the facilities of a pubic office or agency, directly or indirectly, for the purpose of assisting a campaign for election of any person to any office or for the promotion or opposition to any ballot proposition. Facilities of a public office or agency include, but are not limited to, use of stationary, postage, machines, and equipment, use of employees of the office or agency during working hours, vehicles, office space, publications of the office or agency and clientele lists of persons served by the office or agency.”
I understand that this prohibition does not apply to activities that are part of the normal and regular conduct of the office or agency.
WAC 390-05-273 defines normal and regular conduct to mean conduct which is (1) lawful, i.e. specifically authorized, either expressly or by necessary implication, in an appropriate enactment, and (2) usual, i.e. not effected or authorized in or by some extraordinary means or manner.
Skagit Council of Governments (SCOG) is a voluntary organization of local governments whose purpose is to foster a cooperative effort in resolving problems, policies and plans that are common and regional. SCOG serves as the lead agency for the Regional Transportation Planning Organization (RTPO) as enabled by Washington State law, and the Skagit Metropolitan Planning Organization (SMPO) as enabled by federal law. As such, it appears that SCOG employees fall under the jurisdiction of the state and local employee Hatch Act. RTPO is a state designation. MPO is a federal designation. SCOG also received Federal Community Development Block Grant (CDBG) funds to capitalize their economic development loan fund and other activities.
WAC 292-110-010 tells us in (6) Prohibited Uses: the state Constitution, state and federal laws and the Ethics in Public Service Act strictly prohibit certain private activity and certain uses of state resources. Any use of state resources to support such activity clearly undermines public confidence in state government and reflects negatively on state employees generally. This rule explicitly prohibits at all times the following private use of state resources.
(a) Any use for the purpose of conducting an outside business or outside employment.
(b) Any use for the purpose of supporting, promoting the interests of, or soliciting for an outside organization or group, including, but not limited to: a private business, a non-profit organization, or a political party (unless provided by law or authorized by an agency head or designee).
(c) Any use for the purpose of assisting a campaign for election of a person to office or for the promotion of or opposition to a ballot proposition. Such a use of state resources is specifically prohibited by RCW 42,17,130 and RCW 42.52.180, subject to the exceptions in RCW 42.52.180(2).
(d) Any use for the purpose of participating in or assisting in an effort to lobby the state legislature or a state agency head. Such a use of state resources is specifically prohibited by RCW 42.17.190(3).
(e) Any use related to conduct that is prohibited by a federal or state law or rule, or a state agency policy; and,
(f) Any private use of any state property that has been removed from state facilities or other official duty stations, even if there is no cost to the state.
I respectfully submit the enclosed documentation to support my complaint of alleged violations by Daniel V. Pike during his campaign for Mayor of Bellingham. It appears that many e-mails were deleted from the account. Mr. Pike averaged less than one e-mail per day for 2007, when the national average of e-mail received and sent is thirteen per day per employee.
My research was made more difficult by the SCOG attorney, who heavily redacted a good portion of campaign related and other e-mail. Please note that Mr. Pike did have access to a personal e-mail account during the campaign. email@example.com He did not have to send confidential SCOG work product to a campaign e-mail account that was monitored by campaign volunteers. Please do not destroy this packet in the event that you decide not to conduct an investigation. There are other agencies that are interested in reviewing these documents.
List of Alleged Violations as demonstrated through Mr. Daniel V. Pike’s SCOG e-mail account February 2007 through November 2007.
1. On Monday, February 26, 2007 at 8:26 am, Dan Pike e-mailed copies of “Pike for Mayor” graphics from his SCOG e-mail account to firstname.lastname@example.org, his campaign e-mail address. Subject: Document 1. Attachments Doc1.docx. Pike for Mayor graphics.
2. On Monday, February 26, 2007, at 8:27 am, Dan Pike e-mailed copies of “Pike for Mayor” graphics with “paid for by the committee” from his SCOG e-mail account to his email@example.com e-mail account. Subject: paid for by the Committee. Attachments: paid for by the Committee.doc.
3. On Tuesday, February 20, 2007 at 2:21 pm, Dan Pike forwarded an e-mail received from Ed Delaney from his SCOG e-mail account to his dan@Pikeformayor.com account. Subject: FW: campaign.
4. On Saturday, April 21, 2007, at 8:31 pm, Dan Pike e-mailed a request for
Girl Scout troop leader financial aide from his personal e-mail account, firstname.lastname@example.org to his SCOG account. The SCOG attorney redacted information, but a flash light will reveal the source e-mail address. This may have been a personal or private business matter, but it is impossible to know due to, the attorney’s redactions.
5. On Tuesday, April 24, 2007, at 4:53 pm, Dan Pike forwarded a copy of the Northern Neighbors Forum Questions from his SCOG e-mail account to his email@example.com e-mail account. The subject is Northern Neighbors Forum Questions. Attachments Northern Neighbors Forum Questions.doc.
6. On Wednesday, April 25, 2007 at 10:28 am, Dan Pike received a campaign related e-mail from Jim Campbell offering to conduct a fundraiser. Subject: Fundraising (from Beth). Beth offered to hold a garage sale to raise funds for Mr. Pike, later, she offers to pay for bumper stickers.
7. On Sunday, May 6, 2007, at 9:54 pm, Dan Pike received an e-mail from Keri Shepard requesting assistance with her resume. It’s not clear if this is campaign related or perhaps part of Mr. Pike’s personal business. Mr. Pike and Ms. Boynton have a small business called BESTTEST in which Mr. Pike offers test preparation assistance for college bound students. Please see attached business license. Subject: Resume redo help.
8. On Friday, May 18, 2007, Dan Pike received a copy of an e-mail sent by a WWU employee, Preston Schiller advising Marian Beddill, a campaign volunteer, and Dan Pike that he does not want to receive campaign related e-mail at his WWU e-mail account. Subject: Re: (I like Pike) announcements list.
9. On Friday, May 25, 2007 at 4: 42 pm, Dan Pike forwarded from his SCOG e-mail account a copy of the UPWP 2008 draft of the Unified Planning Work Program (UPWP) MPO and RTPO documents for transportation programs and activities to his firstname.lastname@example.org account. This document is work product for projects that are funded by federal and state grants and loans.
10. On Tuesday, June 5, 2007, at 9:10 am, Dan Pike sent an e-mail from his SCOG e-mail account to Jim Campbell (Beth) regarding bumper stickers. Subject: Bumper Stickers. This is a campaign-related purchase of campaign bumper stickers that is being donated as an in-kind donation by Beth.
11. On Friday, June 15, 2007 at 1:59 pm, Dan Pike forwarded office expenses from his SCOG e-mail account to his email@example.com account. Subject: Emailing: Office expenses-0407. Attachments: Dan Time sheet4-2007.xls, dan timesheet 5.2007.xls, James Timesheet 04-2007.xls, Kelley Timesheet 04-2007.xls, Mark Timesheet 4-2007.xls, Office Expenses -0407.xls. These are confidential files – why are payroll records and office expenses being forwarded to a campaign e-mail address? RCW 42.52.050 tells us Public employees must practice open and accountable government. They should be as open as possible about their decisions and action, and protect truly confidential information.
12. On Thursday, August 2, 2007, at 11:24 am, Dan Pike e-mailed additional time sheets to his firstname.lastname@example.org e-mail account. I believe that this is a failure to protect truly confidential information about SCOG employees.
13. On Thursday, August 2, 2007, at 11:23 am, Dan Pike e-mailed Kelley’s timesheets from his SCOG e-mail account to his email@example.com account. Again, I question the legality and ethics of sending employee timesheets to a campaign account that is monitored by campaign volunteers.
14. On Thursday, August 2, 2007, at 11:25 am, Dan Pike e-mailed Office expenses from his SCOG account to his firstname.lastname@example.org e-mail account. Subject: Office Expenses-0607.xls. Attachments: Office Expenses-0607xls.
15. On Thursday, August 2, 2007, at 11:24 am, Dan Pike e-mailed Mark Sullivan’s timesheet for 7-2007 from his SCOG e-mail account to his email@example.com account. Subject: Mark Timesheet 7-2007.xls Attachment: Mark Timesheet 7-2007. Time sheet is attached. It is for MPO/RTPO hours. (Mark’s salary is paid with state RTPO and federal MPO funds).
16. On Wednesday, August 22, 2007, at 1:18 pm, Dan Pike entered into a five e-mail discussion with Bobbi Krebs-McMullen regarding McShane for Mayor Campaign update. All of the content is campaign related. In the Thursday, July 19, 2007 at 11:09 am e-mail, Dan Pike tells Bobbi Krebs-McMullen that “I put in a word on your behalf with Kelley, should I leave this post…” Offering a job to reward an individual for campaign support is illegal under federal law and perhaps also under state law. Please see Title 18 below.
US Code Title 18 Crimes and Criminal Procedure – Chapter 29 – Elections and Political Activities; reads: “Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or other benefit, provided or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, shall be fined under this title or imprisoned not more than one year, or both.” Bobbi Krebs McMullen was providing campaign information to Mr. Pike about Mr. McShane, his opponent.
17. On Thursday, July 26, 2007, at 10:44 am, Dan Pike received an e-mail from Barbara Ryan, Bellingham City Councilor on his SCOG e-mail account regarding Single Family Issues Sehome et all. The Subject is single family issues Sehome et all. Attachments: Conoboy email chain.doc.htm This message was sent to all Bellingham City Candidates and is campaign-related.
18. On Wednesday, August 22, 2007, at 11:30 am, Dan Pike received an e-mail from Erin Malone, Bellingham Unitarian Fellowship congratulating him on strong showings in his race.
19. On Tuesday, November 13, 2007, Dan Pike received an e-mail from Preston Schiller, a WWU employee discussing a transition strategy and potential deputy mayor for Mr. Pike, once the election is ratified by the Whatcom County Auditor (The election was not certified by the Auditor until later in the month). This was one of a dozen or more e-mail on this subject that appeared to be sent back and forth between Schiller and Pike in November. Apparently, a number of the e-mail was deleted, because there are breaks in the numbers. The election was not certified until November 27, 2007.
20. On Wednesday, November 14, 2007, at 11:31 am, Dan Pike e-mailed copies of the 2008 MPO/RTPO draft budget from his SCOG e-mail account to his firstname.lastname@example.org e-mail account.
21. On Monday, December 31, 2007 at 3:31 pm, Jon Ammons, email@example.com wrote the PDC and requested that all further PDC campaign-related correspondence should be sent directly to Dan Pike at his City of Bellingham Mayor’s e-mail firstname.lastname@example.org.
22. A collection of personal e-mail received by Mr. Pike indicating that he used his SCOG computer routinely for personal banking and investing.
In closing, please accept the enclosed copies of Mr. Pike’s SCOG e-mail as documentation for the complaint against Dan Pike. I request that the PDC investigate and evaluate this matter. I ask that SCOG be required to provide full disclosure of all of Mr. Pike’s e-mail from January 2007 through November 2007, without redactions, including all deleted e-mail. The public disclosure request lists 256 sent and received E-mail from January 2007 to November 2007. (Less than one e-mail per day). This number appears low when the national average of e-mail for U.S. employees is thirteen e-mails per day. I am requesting that SCOG and Mr. Pike be held accountable (with appropriate penalties) for denying the public full access to campaign-related communications on a publicly owned computer.
I am aware that Mr. Pike and the Bellingham media have characterized previous Pike PDC complaints as some sort of a campaign stunt or personal vendetta by former Dan McShane supporters, so I want to be clear about my motivations for filing a complaint. In the early 70’s, Initiative 172 provided a means for citizens to file complaints in order to ensure that Washington campaigns are conducted openly and honestly.
I am not bitter, nor am I vindictive. Nor should any citizen that takes the time to file a PDC complaint be characterized as such by the media, a candidate or any state agency. I was not a member of the McShane campaign team, nor did I contribute funds to either candidate’s campaign. I am a firm believer that candidates running for public office should obey campaign laws. We can not have a level playing field when one of the candidates is using his Skagit Council of Governments office to conduct campaign activity for a period of ten months.
I have also filed complaints against Mr. Pike with the Federal DOT, WSDOT, federal CDBC and EDA. The U.S. government prohibits political activity in federal, state and local public agencies that are partially or wholly funded by federal funds; and also with the U.S. Office of Special Counsel (Hatch Act Unit) for alleged violations under the state and local employee Hatch Act.
Thank you for your thoughtful consideration of my complaint. Please do not hesitate to contact me if you require additional information.
e-mail redacted to protect privacy