Rural Element Update
Letter to the Whatcom County Planning Commission
Here is a letter that some of our members presented to the planning commission regarding the Rural Element Update:
To: Whatcom County Planning Commission
Date: 5/24/2012 6:18 PM
Subject: Civil liberty concerns on Rural Element Update
Dear Commission:
The rights of the people recognized by the United States and Washington State constitutions are protected by limiting the power of the state in a comprehensible, rational, and principled order to ensure that citizens are not deprived of life, liberty, or property without rigorous justification, "for cause."
PDS has justified its Rural Element Draft work, both in policy and accompanying zoning changes, as planning measures necessary to ensure "...quality of life, protection of natural resources and economic health of Whatcom County." The "Next Generations Visioning Process" and "Whatcom 2031 visioning process" cited in "Issues, Goals, and Policies" of Chapter Two, Land Use fall short of "rigorous justification" in any rational sense.
Due process protection is based on the premise that there is a genuine difference between law and arbitrary command; between justice and mere force. The very idea of a lawful political order depends on recognizing the difference between "public benefit" and the "police power."
Much of the controversy in such famous "substantive due process" cases as Loan Association v. Topeka or Lawrence v. Texas centers around whether the process by which a citizen has been deprived of life, liberty, or property, is a process of law or merely an unprincipled assertion of power.
A restriction of private activity that does not and cannot meet the test of rigorous justification through due process is an assault on civil liberty. Numerous controls that Planning and Development Services (PDS) has proposed in Rural Element policies attempt to satisfy the Growth Management Hearings Board's (GMHB's) determinations of invalidity and its FDO expand the scope of the Comprehensive Plan. But we believe many proposed changes cross the line and meet the definition of "going too far."
In a liberal government, citizens presume they are free to do something unless specifically prohibited from it. In an oppressive government, citizens must assume they are not permitted to do something without explicit permission. Whatcom County's bureaucratic culture has become one where "if it isn't permitted, it isn't permitted." This is not an exaggeration; this is said openly in the halls of county government. The extent to which this plan purports to manage the private activity of citizens and their property is not appropriate, and does not rise to the level of "necessary or proper."
"This Land Is Your Land, This Land Is Our Land..."
Land Use, Property Rights, Takings -
The tenets of our constitutions do not grant this County a superior claim to manage private property within its boundaries as if all county property is a public resource. Private assets, including the natural resources of privately owned land, are not Whatcom County's assets.
This plan contains many control measures and regulations that inappropriately limit and manage the use of privately owned land beyond the County's mandate. It is wrong that Whatcom County should attempt to, for example, "reserve lands suitable for agriculture" simply because the privately owned land has desirably fertile soil that may have value to agriculture. If the county covets private land with the best soil, it should procure that land through outright purchase or eminent domain for this purpose. Denying the use of privately held land from its owners
because government thinks the land might be used better for some other purpose is not justifiable.
We object to the overarching policy assertion made in the Rural Element that Whatcom County should demand a virtual share of private land use through regulations that clearly intend to generate public benefit. We suggest that the entire body of Rural Element work should be evaluated independently using careful takings analysis. We have valid concern that such a review conducted by PDS or "county legal" presents a clear conflict of interest; in that internal review unquestionably places 'the thumb on the scale' of "Whatcom County, entity."
The plan's assurance that it protects "property rights" is false. The plan is ripe with "regulatory takings." Courts have recognized that when government regulations go "too far," they may constitute a taking. This does not necessarily mean that the regulatory activity is unlawful, but rather that the payment of just compensation may be required under the state or federal constitution. The rationale is based upon the notion that some regulations are so severe in their impact that they are the functional equivalent of an exercise of the government's power of eminent
domain (i.e., the formal condemnation of property for a public purpose that requires the payment of "just compensation").
In a broad series of expansive statements the Rural Element goes too far in declaring ambiguous public purposes, such as: "protect the aesthetic assets" of rural areas through landscape regulation. The demand does not even attempt to address the fundamental question, "What entity owns the assets that are being protected? By what principle can the county protect the aesthetics of private property as if this were public property?"
Time and again, the Rural Element assumes that private assets are the County's "resources." They are not. The Rural Element's policy and zoning regulations also dictate that private land owners must provide habitat and open space in numerous ways, like lot clustering and limitations to impervious surface and building sizes (that limit or manage private use to 80%) - all for public benefit.
These demands that the private sector must provide public benefit go too far. Demanding "lot clustering" that provides open space even when the extension or provision of government utility service is not a factor fail scrutiny of fundamental principle.
The term "development" itself is employed heavily and ambiguously throughout the Rural Element inferring that ordinary private land use equates to "growth." This broad-brush tactic places land use that may do no demonstrable harm subject to control, without nexus.
When the public need for private property is valid such a taking should be compensated for, following appropriate review in a court of law - not by administrative or quasi-judicial processes. That right is clearly required in Article I, Section 16 the Washington State Constitution.
Management of "Population" -
As the vast majority of the county's urban growth occurs beyond the County's direct control, we disagree with PDS' assertion that "population growth" within rural areas should be restricted as necessary to balance shortfalls in urban growth. Use of the term "population" as it applies to occupancy and land use mixes metaphors wildly and inappropriately.
Nevertheless, PDS has repeatedly suggested this control mechanism in its memoranda, saying that the department should monitor rural growth and take action as necessary to ensure that annual population [sic] growth is limited to suit the population allocations forecast within the county plan.
Not only would such a tabulation exercise be incredibly difficult for PDS to conduct, but this bureaucratic power to "take action" would deprive citizens of their fundamental right to use property for no justification other than to suit a plan. Such a policy will be challenged if adopted.
Lack of Appropriate and Suitable Definitions -
The plan contains numerous terms that are not clearly defined and in many cases entirely immeasurable. As such, many of the terms and phrases used in the Rural Element are so arbitrary and incomprehensible semantically that we feel they require proper definition and reconsideration:
We believe a thorough independent legal review to address the plan's egregious flaws is in order. And we feel this should occur beyond the reach of county departments.
Very truly yours,
WHATCOM HEARTLAND
FRIENDS OF CIVIL LIBERTY
To: Whatcom County Planning Commission
Date: 5/24/2012 6:18 PM
Subject: Civil liberty concerns on Rural Element Update
Dear Commission:
The rights of the people recognized by the United States and Washington State constitutions are protected by limiting the power of the state in a comprehensible, rational, and principled order to ensure that citizens are not deprived of life, liberty, or property without rigorous justification, "for cause."
PDS has justified its Rural Element Draft work, both in policy and accompanying zoning changes, as planning measures necessary to ensure "...quality of life, protection of natural resources and economic health of Whatcom County." The "Next Generations Visioning Process" and "Whatcom 2031 visioning process" cited in "Issues, Goals, and Policies" of Chapter Two, Land Use fall short of "rigorous justification" in any rational sense.
Due process protection is based on the premise that there is a genuine difference between law and arbitrary command; between justice and mere force. The very idea of a lawful political order depends on recognizing the difference between "public benefit" and the "police power."
Much of the controversy in such famous "substantive due process" cases as Loan Association v. Topeka or Lawrence v. Texas centers around whether the process by which a citizen has been deprived of life, liberty, or property, is a process of law or merely an unprincipled assertion of power.
A restriction of private activity that does not and cannot meet the test of rigorous justification through due process is an assault on civil liberty. Numerous controls that Planning and Development Services (PDS) has proposed in Rural Element policies attempt to satisfy the Growth Management Hearings Board's (GMHB's) determinations of invalidity and its FDO expand the scope of the Comprehensive Plan. But we believe many proposed changes cross the line and meet the definition of "going too far."
In a liberal government, citizens presume they are free to do something unless specifically prohibited from it. In an oppressive government, citizens must assume they are not permitted to do something without explicit permission. Whatcom County's bureaucratic culture has become one where "if it isn't permitted, it isn't permitted." This is not an exaggeration; this is said openly in the halls of county government. The extent to which this plan purports to manage the private activity of citizens and their property is not appropriate, and does not rise to the level of "necessary or proper."
"This Land Is Your Land, This Land Is Our Land..."
Land Use, Property Rights, Takings -
The tenets of our constitutions do not grant this County a superior claim to manage private property within its boundaries as if all county property is a public resource. Private assets, including the natural resources of privately owned land, are not Whatcom County's assets.
This plan contains many control measures and regulations that inappropriately limit and manage the use of privately owned land beyond the County's mandate. It is wrong that Whatcom County should attempt to, for example, "reserve lands suitable for agriculture" simply because the privately owned land has desirably fertile soil that may have value to agriculture. If the county covets private land with the best soil, it should procure that land through outright purchase or eminent domain for this purpose. Denying the use of privately held land from its owners
because government thinks the land might be used better for some other purpose is not justifiable.
We object to the overarching policy assertion made in the Rural Element that Whatcom County should demand a virtual share of private land use through regulations that clearly intend to generate public benefit. We suggest that the entire body of Rural Element work should be evaluated independently using careful takings analysis. We have valid concern that such a review conducted by PDS or "county legal" presents a clear conflict of interest; in that internal review unquestionably places 'the thumb on the scale' of "Whatcom County, entity."
The plan's assurance that it protects "property rights" is false. The plan is ripe with "regulatory takings." Courts have recognized that when government regulations go "too far," they may constitute a taking. This does not necessarily mean that the regulatory activity is unlawful, but rather that the payment of just compensation may be required under the state or federal constitution. The rationale is based upon the notion that some regulations are so severe in their impact that they are the functional equivalent of an exercise of the government's power of eminent
domain (i.e., the formal condemnation of property for a public purpose that requires the payment of "just compensation").
In a broad series of expansive statements the Rural Element goes too far in declaring ambiguous public purposes, such as: "protect the aesthetic assets" of rural areas through landscape regulation. The demand does not even attempt to address the fundamental question, "What entity owns the assets that are being protected? By what principle can the county protect the aesthetics of private property as if this were public property?"
Time and again, the Rural Element assumes that private assets are the County's "resources." They are not. The Rural Element's policy and zoning regulations also dictate that private land owners must provide habitat and open space in numerous ways, like lot clustering and limitations to impervious surface and building sizes (that limit or manage private use to 80%) - all for public benefit.
These demands that the private sector must provide public benefit go too far. Demanding "lot clustering" that provides open space even when the extension or provision of government utility service is not a factor fail scrutiny of fundamental principle.
The term "development" itself is employed heavily and ambiguously throughout the Rural Element inferring that ordinary private land use equates to "growth." This broad-brush tactic places land use that may do no demonstrable harm subject to control, without nexus.
When the public need for private property is valid such a taking should be compensated for, following appropriate review in a court of law - not by administrative or quasi-judicial processes. That right is clearly required in Article I, Section 16 the Washington State Constitution.
Management of "Population" -
As the vast majority of the county's urban growth occurs beyond the County's direct control, we disagree with PDS' assertion that "population growth" within rural areas should be restricted as necessary to balance shortfalls in urban growth. Use of the term "population" as it applies to occupancy and land use mixes metaphors wildly and inappropriately.
Nevertheless, PDS has repeatedly suggested this control mechanism in its memoranda, saying that the department should monitor rural growth and take action as necessary to ensure that annual population [sic] growth is limited to suit the population allocations forecast within the county plan.
Not only would such a tabulation exercise be incredibly difficult for PDS to conduct, but this bureaucratic power to "take action" would deprive citizens of their fundamental right to use property for no justification other than to suit a plan. Such a policy will be challenged if adopted.
Lack of Appropriate and Suitable Definitions -
The plan contains numerous terms that are not clearly defined and in many cases entirely immeasurable. As such, many of the terms and phrases used in the Rural Element are so arbitrary and incomprehensible semantically that we feel they require proper definition and reconsideration:
- population - Whatcom County can zone for density, but it must not write policy that refers to controlling "population" (i.e., "permit a population in the County rural areas ~," "rate or distribution of population growth").
- agriculture - this is an activity, not a "resource." Also, "agricultural land" is too used loosely with improper definition.
- "aesthetic assets of the rural areas" - highly subjective
- "visual aspects" - also highly subjective, as in "regulate visual aspects"
- "assure visual compatibility" -- too subjective
- "soften the impact of structures" -- highly subjective
- "designed and located to be compatible with valuable or unique natural features as well as physical constraints of the site" - all subjective, vague
- "ensure that the rural areas retain a visual quality" -- too subjective; not necessary or proper
- "rural wildlife habitat" - requires definition
- "retain the economic vibrancy of ~" - vibrancy is subjective and vague
We believe a thorough independent legal review to address the plan's egregious flaws is in order. And we feel this should occur beyond the reach of county departments.
Very truly yours,
WHATCOM HEARTLAND
FRIENDS OF CIVIL LIBERTY
