For more than a year, construction crews have made steady progress on a project linking two portions of Northeast 10th Avenue separated by Whipple Creek. Clark County anticipates the project, which is intended to improve traffic flow in the area, will be completed later this year.
But Clark County’s plans for a related road improvement project along Northeast 10th Avenue from Northeast 149th Street to Northeast 154th Street has been complicated by an ongoing legal issue over the county’s planning and land-use policies.
The county is currently ineligible for a $10 million loan from the Public Works Trust Fund, administered by the Washington State Department of Commerce, to help fund the project that it’s planning to start in 2020.
The reason for Clark County’s ineligibility is the Growth Management Hearings Board concluding that the county is still not in compliance with state law. The land-use adjudication panel issued an order of invalidity earlier this year against the county’s comprehensive plan, cutting off various sources of state funding.
“It’s amazing three people can do that,” said state Sen. Lynda Wilson, R-Vancouver, referring to the three-member panel during a recent meeting of county councilors and legislators.
The comprehensive plan is a document required by the state’s Growth Management Act. It’s intended to reduce sprawl and preserve resource land, while guiding growth in the county over a 20-year period.
Clark County has continually faced some sort of legal challenge to it comprehensive plan since it was updated in 2016. Shortly after passing the update, Seattle-based land-use group Futurewise and local environmental group Friends of Clark County appealed the plan on grounds that its agricultural and resource land lots sizes were too small, facilitated sprawl and failed to protect farmland.
Last year, the growth board issued an order agreeing with Futurewise and Friends on some issues and sent the plan back to Clark County. In January, the growth board issued another order finding that the county had taken some steps to comply. But the growth board still issued an order of invalidity against the plan over moves by La Center and Ridgefield to annex nearby farmland for development. Both orders are currently in appellate court and a ruling isn’t expected until next year.
Under state law, counties that have an order of invalidity issued against them are ineligible for various sources of state funding.
Speaking at a recent meeting of legislators and county councilors, council Chair Marc Boldt, no party preference, expressed frustration at the county being unable to access the funds while appealing the growth board’s decision.
“If I was Futurewise, I would know that I have them over a barrel to do anything I want because I’m gonna steal all the grants away,” said Boldt.
Futurewise Director of Planning and Law Tim Trohimovich said in an email interview that the situation is fair and that Clark County could have delayed the effective date of its updated comprehensive plan to remain eligible during its appeals.
“Clark County has twice had its day in court, before the Growth Management Hearings Board, and has twice been found in violation of state law,” he said, adding, “The county has no one to blame but themselves.”
The governor also can withhold tax revenue to counties who continue to refuse to come into compliance. But Eric Johnson, the executive director of the Washington State Association of Counties, said that no governor has exercised this more extreme option.
He didn’t have exact numbers on how many counties are facing this conundrum but said it has become less common. According to a list on the Department of Commerce’s website, in April there were 95 local jurisdictions that are out of compliance with the Growth Management Act.
Johnson said that a source of frustration for counties is that projects they are seeking funding for often have no connection to the issues that caused the order of invalidity.
“It doesn’t seem reasonable,” he said.
In a recent meeting with state legislators, Republican Clark County Councilor Julie Olson pointed out that funding for the project on Northeast 10th Avenue (which is in her district) has no direct connection with farmland preservation. She also pointed out the particularly vexing situation the county is in.
Once Ridgefield and La Center completed their annexations, the land is no longer under the county’s jurisdiction. But the growth board still issued an order of invalidity against the county.
“The way the statute is written right now, we did our part, the cities did their part, we’re completely in line with what the law said, but the Growth Management Hearings Board can rule us invalid because they don’t like it,” she said.
Jamie Howsley, a land-use attorney with Jordan Ramis who is representing developers in the comprehensive plan appeal, said that the county is in a very precarious situation with no clear remedy.
In addition to the money from the Public Works Trust Fund, the county is also ineligible for a $255,000 grant it was seeking from the Washington State Department of Ecology for the Hazel Dell catch basin retrofit, according to Jeff Mize, spokesman for Clark County Public Works.
He said that while the funds would have been helpful, the county will absorb the cost for the Hazel Dell project.
“In some ways, we are always looking for more money,” he said. “I don’t think there’s a community in the U.S. that has too much money for transportation.”