Freight-rail bill sets up quandary for county

Officials see risk, complications in early implementation of law

By Jake Thomas, Columbian staff writer

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When Washington Gov. Jay Inslee signed Senate Bill 5517 into law over the summer, the move was widely hailed in Clark County. The legislation is a rare modification to the state’s overarching land-use law and was praised for its potential to grow freight-oriented businesses in Clark County that could bring hundreds or even thousands of good-paying jobs.

But weeks before the bill is scheduled to go into effect, the county has encountered a quandary. The county could implement it and risk litigation, or the county could initiate a process that would delay the bill’s implementation by more than a year.

“Doesn’t it seem like government always takes the long way around?” said Sen. Lynda Wilson, R-Vancouver, the sponsor of the legislation.

The state’s Growth Management Act directs counties and cities to designate and conserve agricultural and natural resource lands. The bill, which passed overwhelmingly in the Legislature, is limited to Clark and Okanogan counties. It amends the GMA, permitting each county to adopt development regulations that allow buildings and infrastructure to be developed on agricultural and natural resource land near short-line railroads. Under the law, these developments could be used for “freight rail dependent uses” by businesses that rely on short-line rail to manufacture, process, store or transport goods.

Wilson called it a “jobs” and “quality of life” bill that would allow more Clark County residents to work where they live. Currently, there are 78 acres zoned for freight rail use in Clark County. Businesses have expressed interest in obtaining larger parcels along Chelatchie Prairie Railroad.

“It’s a great opportunity for Clark County to lead and to show that we can be successful,” she said.

The bill goes into effect Oct. 19. But during a county work session on Wednesday, county staff warned that implementing it won’t be quick or simple. Speaking to the council, Community Planning Director Oliver Orjiako said that before developments allowed for by the bill could begin, the county needs to develop a plan to solicit public comment and to conduct an environmental review.

He also said that the bill’s implementation will require an amendment to Clark County’s comprehensive plan, a document mandated by the Growth Management Act that guides growth in the county. He said the amendment wouldn’t change the zoning of areas where rail-oriented developments would be allowed but instead apply an overlay.

Doing so would notify property owners where new rail development can occur, he said.

“It gives you cover; it gives you good footing,” said Orjiako.

Christine Cook, senior deputy prosecuting attorney, agreed. She explained that comprehensive plans can only be amended once a year.

Because it’s too late to amend the plan for next year, she said, the timetable for an amendment to become effective is January 2019.

“I can tell you it is very frustrating to me to have this opportunity for economic development in the county and have the county prosecuting attorney tell us we cannot do this when everybody who dealt with this state law is saying it’s a different thing,” said Councilor Eileen Quiring.

Cook responded that she shared her frustration and that the council could disregard staff’s recommendation. She said that an amendment to the comprehensive plan would protect the county against possible litigation.

Both Wilson and state Rep. Liz Pike, a Camas Republican who worked on a companion bill, dispute the county staff’s recommendations.

“The legislature gave (Clark County) a nice little package on a silver platter, and I hope they run with it,” said Pike, who is running for county council chair, after the work session. “The heavy lifting happened in Olympia.”

Speaking at the work session, longtime land-use lawyer Steve Horenstein said staff recommendations go “far beyond the what’s required” by the law. Jamie Howsley, another land-use lawyer, agreed and added that the county could move forward with a text amendment to its zoning code.

He said that developers could conduct environmental reviews for their projects instead of a broader one by county.

However, Friends of Clark County, a local environmental group, disagrees. In a letter sent to the county council on Wednesday David McDonald, a lawyer for the group, wrote that Clark County needs to amend its comprehensive plan to implement the bill because the development it allows for would occur on agricultural and natural resource lands.

Friends of Clark County, along with Seattle-based land-use group Futurewise, has already challenged Clark County’s 2016 update to it comprehensive plan, which currently remains under appeal.

During the work session, the council didn’t signal what course of action it would take. But council Chair Marc Boldt noted, “We are going to come back to this very soon.”