BirchBay developer fights Growth Management Act

Published on Thu, Oct 4, 2007 by ack Kintner

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Birch Bay developer fights Growth Management Act

By Jack Kintner

Birch Bay developer Bill Grant has given his attorney the go-ahead to ask the state supreme court to overturn an appeals court decision about county land use.

Grant owns a seven acre parcel of what was once an 11-acre drive-in theater near the northeast corner of the intersection of Valley View Road and Birch Bay-Lynden Road, across the freeway from Birch Bay Square.

Grant said that he had planned to develop it earlier but stopped after 9/11 when cross-border traffic slowed. Now he’s afraid that the property will be down-zoned to the extent that it could no longer be developed as planned.

The appeal goes back to a Growth Management Act (GMA) hearings board decision in response to questions from the state-wide conservation group Futurewise that required the county to take a closer look at how it had zoned about 20,000 acres of rural property because it had allowed too much urban development.

Although the county declined to appeal the decision, Grant became a party to the lawsuit and appealed to Whatcom County Superior Court, winning a reversal in a 2004 decision by Judge Stephen Mura.

Futurewise took it to the state court of appeals which reversed Mura, and now Grant’s attorney, Jack Swanson of Bellingham, has filed a notice of appeal with the state supreme court, the next and final level of appeal.

“It could still go on for years,” Swanson said, “since the (state) supreme court first has to decide if it wants to hear this at all. They take probably one in 10 cases that notify them of an appeal as we have done.”

Futurewise spokesman Tim Trohimovich said, “To allow urban style development in rural areas the act says that the county must review the rural acreage to see if it would fit into an urban growth area designation, or if it was already developed more intensely prior to 1990 then designate it as a limited area of more intense development. And they didn’t take that step, leaving things much looser than it intended.”

“I’m astounded that a piece of property like the one we have which has been zoned gateway commercial for 30 years and which we bought based on how the county had zoned it can all of a sudden be down zoned to where we can’t develop it appropriately,” Grant said. The designation allows for retail development, light manufacturing, motels, warehouses, travel plazas and buildings up to seven stories, Grant said.

“We understand what Mr. Grant is saying,” Trohimovich said, “but that’s why the GMA was passed, because rural land was being developed inappropriately, and we began to see things like increased pollution in Puget Sound. That’s why a review of earlier zoning decisions was mandated.”

Grant’s paying for the appeal himself, as the county declined to take the matter further. “I’m just trying to protect my interests,” he said, “and those of other people who have developable land in the area, too.”