Politics from the Palouse to Puget Sound

Monday, April 23, 2007

"Public hearing: Ag zone foes voice objections"

From the April 19 edition of the Whitman County Gazette:
Over a dozen citizens packed the auditorium at the public Service Building Tuesday night to voice their support or opposition to changes to the county's proposed rural residential ordinance.

Many in the crowd though the low attendance was due to spring planting season.

"This is a very poor time to have this meeting," said Colfax farmer Tom Barlass. "Our crops are much more important than anything else right now."

Spokane resident Robert Zorb, who owns farm land in the county, also chastised the timing.

"You picked the worst time of the year and the worst time of the day to the people you;re affecting in here," said Zorb.

If it's really that important, you would think more people would make an effort to come," Commissioner Greg Partch said after the hearing.

Barlass, who spoke at the December public hearing, again asked commissioners about weed control in buffer zones.

"I don't want a 200-foot set aside with thistles blowing over to my side," he said.

Barlass also asked about the Avista power poles.

"You can't stop them from building on top of a hill, but you can stop me?" he asked.

Pullman City Supervisor John Sherman spoke on behalf of the city, reiterating its desire to have a one-mile buffer from development around Pullman.

Sherman said Pullman housing has become unaffordable for some, and opening development in the county would be helpful, but wanted to make sure the city has room to expand.

"I asked for it in May, and again in December," said Sherman. "Leaving that room for the city to grow would increase the tax base for both the city and the county."

Zorb said commissioners "had their car in reverse."

"You're not creating anything," he said. "You're below zero growth." [In two other stories in the Gazette, it was reported that first quarter 2007 building permits hit a five-year low and that the county was facing a million dollar budget deficit- tf]

"Read your history," said Zorb. 'The first thing a government does before going to communism is to take away your land rights."

Lucille Linden spoke on behalf of the League of Women Voters. She voiced the league's support of the ordinance, and asked that it not be altered for one year if it is implemented to gauge any impacts it may have.

Elberton resident Pete Lazzarini questioned how much public input commissioners factored in the code.

"Your time would be well spent finding out what the people who voted you in want," said Lazzarini.

"I know you want to get this off the table, but let's take our time and get it absolutely right."

LaCrosse farmer Tedd Nealey also voiced support for the ordinance's revisions.

"What do we want to leave our kids and grandkids," he asked. "I want to keep my farm."

Nealey urged commissioners to implement the revisions as soon as possible.

"It's time we get this document in place and move on," he said. "Once we start there's no going back."

The planning department will receive written comments until 5 p.m. next Tuesday. Commissioners have promised a decision for April 30 during their regular board meeting.
I hope to have some more documentation on the whole "aquifer recharge zone" thing soon. When I said the science was indefensible, I meant that as this point, the "aquifer recharge zone" on buttes is still just a theory, that won't be proven until at least December. The county commissioners are staking our whole future on a science experiment.


April E. Coggins said...

My humble opinion is that we don't have to get it right the first time out. We are choking on knats and swallowing camels. Let's get something on the books that allows growth, then we can argue and wrestle over details. As it is, we have nothing.

Tom Forbes said...

It's taken nearly thirty years to modify the existing rural residential zoning ordinance. There's no reason to belive it wouldn't take another 30 years to modify this one.

Whatever gets passed will be around for awhile. That's why we'd better get it right.

The commissioners should, as a minimum, leave off butte protection until the aquifer recharge study is done and until the impact to the owners of those buttes is determined.

Bruce Heimbigner said...

I’m conflicted. In my heart I like to think the free market wins and farmers should be able sell, chop up, or not use their land however they want to. But the new county zoning will NOT do that. As I bike (my weekly route to Oaksdale) or drive around the county it really is a pretty place (treeless though it be.) If Whitman county residents want to preserve the appearance of the county through zoning we should do that. I can see no reason to not use zoning to do this.

Tom Forbes said...

If the citizens of the county want to preserve the appearance of the county, then the commissioners need to figure out how much protecting the 15 buttes will cost the landowners then put it to a vote. Taxpayers can then determine if they want to pay higher property taxes to compensate the landowners for the use of their land. When the public gets a benefit out of private land, the public has to pay. That's the free market solution.

As it is, Whitman County citizens are not having any meaningful say in this process. And the landowners that will be affected (who have not even been indentified yet) will effectively have their land seized through a form of eminent domain abuse.

The commissioners would take well to pay heed to the Marler case in the Whitman County Superior Court, which involves a "taking" by Avista.

April E. Coggins said...

We can argue for another 30 years, trying to get this current ordinance to be perfect, or we can allow this ordinance to go forward and perfect it later. In ten years, we may have a group of commissioners who may not support growth at all. We have a window, let's take advantage of that window. We can change the particulars later.

April E. Coggins said...

Sorry Bruce, but let's start with your house first. It was originally part of the unspoiled Palouse. Let us all now re-examine Bruce's property. His new windows, or his cleaning of his windows may alter my traditional view of the Palouse.

Change and growth is good. We need to allow change and growth to allow young people to come into the market. Protection is stagnation, and we must get over it. If anything, we must remember how hard we tried as young people to break into the protected free-market. Let's make it easier, not harder for young people.

Tom Forbes said...

When we have commissioners that will support a 2,000 square foot house as well as a 750,000 square foot shoppping center, then we'll have some pro-growth commissioners.

But when your "growth plan" is endorsed by the League of Women Voters, then you know you're in trouble.

Just as there is no such thing as a little pregnant, there is no such thing as a little free enterprise.

But, you're right, we're going to to end getting the growth we deserve.

Bruce Heimbigner said...

”But when your "growth plan" is endorsed by the League of Women Voters, then you know you're in trouble.” - I hear you there.

This isn’t a ‘takings’ plan. The county isn’t using eminent domain. It’s zoning and the land is zoned now. If the county says you can build anywhere and someone can soon sell their land for 50,000 / acre vs currently $3,000 then should that land owner pay the county because a change in zoning increased the value? Like I’ve pointed out before we ‘owners’ are all just renters and we either have a bottomless stash of cash or we use the land in a productive way – or it will be taken away – Now that is ‘takings.’

I’m no zoning expert but it seems to me zoning should provide for stability in value and allow for (or encourage) growth, and whatever other goals the voters decide that isn’t unconstitutional.

For me personally the allowing more homes to be built in the county has a high potential for a negative effect on me in that cheap land/homes in the county could decrease my property value –is that also ‘takings’?

Tom Forbes said...

In Washington, the government may "take" property in two basic ways: (1) by physically appropriating the property, such as for a right-of-way; or (2) by regulating or limiting the use of property under the government's police power authority in such a way as to destroy one or more of the fundamental attributes of ownership (the right to possess, exclude others, and to dispose of property), deny all reasonable economic use of the property, or require the property owner to provide a public benefit rather than addressing some public impact caused by a proposed use. In the first instance, the government typically institutes eminent domain proceedings, also called condemnation. In the second instance, the government can be sued for a taking. A suit alleging a taking is also called an "inverse condemnation" action.

Obviously, the hilltop development restriction constitutes a public benefit (that scenic beauty you referred to) and would be considered a "taking."

Zoning is allowed under the state constitution, at article 11, section 11, which grants cities and counties the police power authority to protect the public health, safety and welfare. Pursuant to that authority, a city or county may regulate the use of property. They may regulate property for purposes such as abating nuisances, enforcing building and health codes, zoning and planning, and environmental protection.

Ah, environmental protection. Enter the "aquifer recharge zone." The problem is, there is no proof of an "aquifer recharge zone" existing on Kamiak Butte. It's still just a theory. And who knows is such zones exist on any of the other 14 buttes proposed for protection?

In Washington State, the courts have also used a "substantive due process" test to analyze the burdens imposed by land use regulations.

Both the federal and state constitutions provide due process protections through the Fourteenth Amendment and article 1, section 3 respectively. Substantive due process basically requires that a land use regulation be imposed reasonably and fairly. Under this test, a regulation must not only have a legitimate public purpose, but it must also use means to achieve that purpose that do not impose an unfair burden on affected property owners. So, under Washington law, a land use regulation may be challenged either as an unconstitutional taking or as a violation of substantive due process, or both. A regulation is a taking if it violates the constitutional requirement of compensation when private property is taken for a public use, while a substantive due process violation occurs when a regulation exceeds the constitutionally permissible scope of the police power. Unlike the remedy for a takings, the remedy for a substantive due process violation is invalidation of the regulation.

That, in my opinion, is why this rural residential zoning ordinance is bound to end in court and costing county taxpayers thousands. Basing a zoning decision on unproven science is neither reasonable nor fair (it singles out those who own property on the 15 buttes).

In your case, property owners do not have a constitutional right to the most profitable use of their property. There is no regulatory taking.

April E. Coggins said...

On a local level, here is how I see it.
Suppose you have a lot with a home next to a wheat field and you are fortunate enough to have a beautiful view. Now suppose a chicken ranch is going in where the wheat field stood. The odor would degrade the value of your home and you would be in the right to object.
But let's reverse the objection. Suppose a farmer wants to use his property to develop homes, just like the homes next to his field. Isn't it just as much of a degredation to the farmer's property values to deny him the opportunity to profit from his property as it is to protect yours? We all love views and we all love open, quiet areas. But who is actually paying for our priviledge?

April E. Coggins said...

It's not as if we are going to be Seattle if we pass this ordinance. We have a huge amount of land in our county and our very rural towns are dying. We need to throw them a life line and this ordinance is it. Schools and roads in Washington are funded and funneled by the state. The state collects all the tax dollars and then returns the money according to use. Fewer students in schools and fewer people on the roads means less of our own money is returned and a downward spiral continues. We need growth or at least stop shrinkage to maintain our current level.

Jerry Finch explained it to me that costs keep going up, with higher teacher salaries, more regulation, higher construction costs, etc., so we must grow to pay for those increases.