08/03/2007: "Letters On Referendum & Stormwater"
To the Editor:
I have two questions to the Editor and to the other readers of The Guardian:
1. What do people think about Friday Harbor voters voting on a matter that. so far as I can tell, doesn't affect them? I understand that Friday Harbor has its own (higher billing rate) storm water utility, but the existence of that utility isn't in contention. What is the connection between Friday Harbor voters and the fate of the County storm water utility?
2. Let's assume for argument's sake, that some means of control of County storm water may be needed in the future (I realize that people may want to debate this premise). Should we be thinking about what behaviors or practices we could adopt as inhabitants of these islands that would make mandatory storm water controls unnecessary? I for one would prefer not to have additional financial and bureaucratic burdens if we can make them unnecessary.
The storm water committee report was great. They worked hard on their recommendations. It is too bad that many of their ideas did not make it into the Ordinance. This comes as a surprise to many of them that I talked to after the meeting. The language of the actual ordinance is different from their recommendations in many cases.
No one can blame you for not knowing all of the implications of this ordinance at the time you voted for it. After all you had less than one day to read it and it was passed at the last minute before the 2006 holiday season. Four of you were new on the job.
Now as I see it you have two choices. To continue on with the vote and do nothing or to begin drafting another Ordinance in case the voters repeal the existing fundamentally flawed Ordinance 20.
If the voters repeal it or not, either way there will be a lawsuit. The funding will stop and you will be blamed for non-compliance with GMA mandates. If the voters decide to keep the ordinance in place, as is, the County will be stuck with a fatally flawed document that will cause problems down the road. Neither of these outcomes seems satisfactory.
The Ordinance is fundamentally flawed for the following reasons:
1. It is not a fee. It is a tax. This will always make it vulnerable to legal challenges.
2. There is a basic conflict of interest embedded in the Ordinance. The Public Works acts as the assessor of the tax as well as the beneficiary of the funds. The Assessor does not have the staffing to go around the islands measuring the “impervious surfaces” that this tax is based upon.
3. The tax penalizes property owners that may have no development on their parcel other than a pond that retains storm water. Under this ordinance a pond fits the definition of development. A pond helps recharge aquifers, controls runoff to neighboring parcels, provides habitat for species, and provides many other benefits. It does not make sense to punish people who are trying to solve the very problem this ordinance was created to deal with.
4. It violates the intent of the separation of powers in the Charter. It was not the objective of the Freeholders to allow the Council to sit as Judge and Jury over their own legislation in quasi-judicial appeal hearings. If 200 people appealed their assessments the Council could spend months in these hearings. The ordinance should be changed to prevent this. If it is truly a land use issue, appeals should go to the Hearing Examiner. If it is a tax assessment it should go to the BOE.
5. There are no provisions in the Ordinance for mitigation for property owners to solve their own storm water problems or participate in creating a solution. The committee recommended otherwise.
6. New development is required to deal with storm water on their property to meet current regulations. That should mitigate any charges to that property for the storm water they are not producing because they have already gone to the expense of dealing with it.
7. The tax is fundamentally unfair for many reasons. At some point rural landowners will get fed-up with subsidizing development in urban areas. This ordinance was created to fund projects that actually increase the property values of undeveloped land in urban areas while those vacant parcels pay absolutely nothing. Additionally, those developers get a bonus in that they will not have to pay to comply or upgrade the storm water infrastructure like everyone else because the rest of the county taxpayers did it for them.
8. The committee is convinced that this Ordinance has a 6-year sunset clause. In fact it does not. This is a widely held misconception.
9. The projects in Eastsound will not come in at the projected budget numbers. Not even close. Those numbers are several years old and do not include estimates at today’s cost. Additionally, land owners in Eastsound will not be willing to give away easements when they see a big pot of money sitting there for the taking. This is already happening. If eminent domain must be used there is an additional cost involved. No money was budgeted for this.
10. The projects in the Eastsound drainage basin are located in and around several critical area wetlands. Our own laws prohibit diverting or adding to the natural water flows into or out of these wetlands. Very little consideration was given to this complication and inadequate funds were provided in the proposed budget to complete environmental studies in these areas. If you think 1.7 million will complete these projects think again. It will likely be twice this number. The issue of fairness takes on a whole different meaning when the costs skyrocket and the County gets tangled up by violating its own rules.
11. The responsibility for any “Balkanization” within our community is a direct result of Council Members ignoring the issue of fairness and how it would play out in public opinion. Each and every island in the County has unique and different needs. Respecting the diversity and addressing the needs of individual islands does not diminish the feeling of community we all share. The reaction would be exactly the same if everyone were forced to pay for storm water infrastructure at the County Seat.
It would be wise in my opinion to repeal this ordinance and make some changes. By doing this the referendum challenges are moot. The funding source will be protected for 2008. GMA compliance is on track. The voice of the people will have been heard.
You do not have to hire expensive consultants to make changes to the ordinance that are fair and equitable. Doing projects by watershed basin with the funding coming from those who live in that basin or by forming a taxing (capital “U”) Utility District in the urban growth areas are ideas that are much more fair. That way there is the opportunity for the people in these areas to qualify for grants, bonds, and other funding mechanisms. You have until the end of the year to do this. Right now there is enough money in the pot to get the projects going until the details are worked out.
By entrenching and defending this flawed ordinance you will not be acting in the best interest of the citizens you represent. That is my opinion.
Thanks for listening.
San Juan Island
To the editor:
Steve Ludwig’s letters increasingly imitate a broken record. As permitted by the Growth Management Act (GMA), he filed or was a co-filer of a lawsuit opposing the designation of Eastsound and Lopez Village as Urban Growth Areas (UGAs). And subsequently he repeats his criticisms to the effect that BOCC improperly “created” these urban growth areas.
What we presently call urban growth areas grew over the course of several dozen decades. They were not created by our BOCC. They were a legal and appropriate expression of citizens wanting to live in a similar-to-fully-urban circumstance without the administrative burdens of “incorporating” as a town.
Urban Growth Area” is a descriptive term of the GMA. Mr. Ludwig might be correct in noting that Eastsound and Lopez Village now pose considerable challenges vis-a-vis meeting the requirements of the GMA. Whatever problems Mr. Lugwig perceives about these communities being UGAs have rather more to do with the fact that the Growth Management Act is bad law. It was written primarily to “manage” the urbanization around Seattle and does not recognize – nor (thanks to litigants such as Mr. Ludwig) encourage – many of our island-unique characteristics.
Mr. Ludwig also repeatedly characterizes the proceedings concerning our UGA’s as undemocratic or “authoritarian.” This notion has a germ of truth. In this case, however, the only thing that is undemocratic or authoritarian is the GMA, and especially its prohibitions on letting citizens vote their desires (regarding the management of growth) at the ballot box.
To the editor:
For the record, the document referenced in the letter to the editor, signed by Steve Ludwig and published in The Island Guardian, did not state that the Stormwater Utility and its fee were “imposed only to meet the Growth Management Act’s requirements for the Eastsound Urban Growth Area.”
The document is a report concerning steps the County had made to comply with Growth Management Act requirements for Eastsound, and it states that County had responded to those requirements by, among other things, creating a stormwater utility and stormwater utility fund.
We could have added that the county was also acting in response to needs on Lopez and San Juan Island, but that would have been irrelevant in a compliance report for Eastsound.
While Eastsound is currently the largest single project area on the books, the Stormwater Utility’s capital projects plan currently shows 13 projects on Orcas, 8 on Lopez and 9 on San Juan Island during its first five years. This is in addition to ongoing maintenance work on drainage ditches and culverts throughout the county. The Public Works department says that construction work will likely begin on some stormwater projects on Lopez and San Juan Island before planning and other pre-construction work can be finished on the Eastsound projects.
Director, Community Development and PlanningSan Juan County
A reply to Gordy:
I'm sorry if I raised your alarm, but I wasn't referring to your article "Repugnant" at all, or you specifically (this time), but simply to the phone calls and in-the-store questions and reactions of many folks to this Referendum issue and their reaction to your article. As for your article "Repugnant", I didn't even read it until I was told by someone I was being personally guided by you through a public forum. It's OK.
So, now that I read it, I understand how the lines get blurred by either intent or default through public discourse, and when so many basic rights are under attack, it can be easy to over react. On the other hand, there is reason to be concerned.
People will choose to see this through their own opinions and desires, and both opinions of yours and mine are only fragments of the larger reality of the factual circumstances surrounding this mess. Of course these days, ideological choices have become substitutes for factual realities, and that's where the system gets blurred and breaks down. Look no further than the White House.
While I gave my own opinion of funding and responsibility of storm water, my main intent was to call for cooler heads to prevail. I think in the ultimate end if we choose NOT to make this something that it is not, we will be able to better the processes of Referendum and Initiative granted the people of the County through the Charter and further the discussion that the Referendum called for.
A reply to Jeff Bossler:
Jeff, you seem to be confused about something you may have read on the Guardian. If your comments are made regarding the reference to “free speech” I made in my column entitled "Repugnant", I was not talking about the referendum at all.
It's easy to get confused when the Prosecutor attacks so many basic freedoms of our democracy. In the Supreme Court case San Juan County v NNGT (No New Gas Tax) the basic freedoms attacked were freedom of the press and freedom of speech. The Prosecutors attack on the referendum and the person who filed it takes aim at the peoples fundamental right to vote, and also the right to petition its own government without harassment and intimidation. I know that when so many basic rights are under assault it is difficult to keep them all straight.
Since the referendum proposed a vote on a specific unfair funding mechanism it therefore had absolutely nothing to do with compliance with any state mandate. It was simply an attack on our freedom to vote in a democracy.
I apologize if I was not clear about which freedom was attacked by the Prosecutor this time. And for the record I support clean water wholeheartedly. I don’t know anyone who doesn’t. Please don’t get confused about that. Our responsibility for a clean and healthy environment has nothing whatsoever to do with the intent of the referendum. It’s all about a tax disguised as a fee for no service.
San Juan Island
To the Editor:
There are responsibilities inherent within the new powers of Initiative and Referendum. It's like when you hand over your car keys and a credit card to your teenager. New-found freedoms don't exempt one from basic laws and responsibilities.
While Counties are able to be somewhat independent of the State on certain issues, Counties are still required to uphold the requirements of the Revised Code of Washington (RCWs) and the Growth Management Act (GMA). It must be understood that our Home Rule Charter is no mechanism to defeat the GMA or its requirements - period.
In the all too familiar sleight of hand manner, an effort to embellish some of the issues that surround this referendum which clearly charts a path contradictory to what is explicitly allowed by the Charter and the RCWs is now framed as a "free speech issue."
Aside from the credibility and question of the opinion set forth in the referendum, it should be noted that referendum is a "tool" to be used to stop an ordinance which has been passed by the County Council, and an initiative is a "tool" to propose and enact a particular policy. While both are connected to free speech, neither are categorically "venues" for free speech.
Relative to the funding issues of specific storm water run-off infrastructure in unincorporated areas it is easy to see that the probable responsibility lies with the entire County. In a county which consists of a solid landmass, there would be little or no question.
It's all too easy to see the water that "separates" each individual island as an excuse to drop a county-wide perspective as an excuse to evade our responsibilities toward the larger whole. Yet it is the highly dynamic nature of water that actually "unites" us to the same issues, the same destiny, and the same uniqueness we should all be proud to protect and support.
As for the state required protocol of dealing with this referendum by lawsuit, it is nothing more than a necessary legal formality best explained by a Council Member.
Former Orcas Freeholder
To the Editor:
The Cold War contest between democracy and tyranny brought some interesting words and idioms. We learned that “apparatchik” properly defined the functionaries that administered tyrannical regimes.
In their slavish devotion to the Growth Management Act and concurrent mindless adherence to the recommendations of our chief legal apparatchik (aka San Juan County Prosecutor, Randy Gaylord), four of our county counselors have proven themselves worthy of the title “apparatchik.”
In their initial vote to authorize Gaylord to sue a citizen to block a referendum, four councilors could not muster the stomach to affirm a fundamental principle of democracy (our right to petition via a referendum). Rather than making this obvious vote, four councilors/apparatchiks voted that greater weight should be accorded to the possibility that the referendum might involve a contradiction of some provision of the GMA. It merits repeating: in a choice between affirming a fundamental right or dithering about GMA compliance, four apparatchiks voted against the affirmation of a fundamental right.
A few weeks later the council voted to withdraw the authorization to sue the referendum petitioner. Councilor Myhr was the lone hold out, justifying his vote on the "agony" caused by "uncertainty." One might wonder what uncertainty he refers to, however, of greater wonder is how any consideration of uncertainty could rise to a level of importance commensurate with the fundamental right of initiative and referendum.
Democracy and freedom are precious. They are not preserved without vigilance. Most of all, our constitutionally enumerated freedoms are the absolute bedrock underpinning in our system of democracy. They should never be subjected to subservience in routine votes. That our county prosecutor and several councilors seem not to understand these principles is really sad.
In their initial vote to turn their backs on a fundamental right and to be apparatchiks for the GMA, counselors Myhr, Knapp, Lichter and Ranker reminded us that far from being a worthy tool in the management of growth, the GMA is rather more a soviet-style “dicktat” that offends freedom’s sensibilities.
Hopefully future votes will evidence a greater appreciation of how freedom actually works (and a willingness to defend it). We would be equally well served if they would exercise greater skepticism of both Randy Gaylord and perceived dicktats of the GMA.
Letter to the Editor.
Let’s see if I have this right. Randy Gaylord drafted the language for a petition for a referendum opposing a Storm water Utility fee. Alex Gavora obtained more than 2,000 voters who signed their names to this petition. Randy Gaylord then goes to the Council and recommends they sue Gavora for initiating the referendum, based upon Gaylord’s decision that the county “might” be sued if the referendum passes.
Apparently reluctantly (3 to 2) the Council goes along with Gaylord. All hell breaks lose when the citizens find that one of theirs is being punished with a lawsuit being funded by county money for having the temerity to initiate a referendum as allowed in the new Charter, and Gaylord’s lawsuit at this late date will probably insure that the referendum will not make the ballot.
One of the Council, Alan Lichter, takes the citizen’s concerns to heart, and proposes that the lawsuit be dropped. The Council agrees with Lichter’s arguments, and the suit is dropped by a vote of five in favor, one against.
At this point, Gaylord issues a press release, not shown to the Council in advance, saying Gaylord had already initiated meetings with County staff and individual members of the Council to discuss various options, including that possibility.(Dropping the lawsuit) (None of the council apparently remember such meetings, but who knows what staff were in such discussions.) “It was clear that so many issues – ranging from the rationale for the fee itself, to the intent of the freeholders, the initial handling of the petition submission and the timing of the lawsuit – had become so emotionally and publicly inter-twined, that prospects for an outcome that all parties would consider untainted, were dim.” said Gaylord.
Back in my military days, such spin documents as Gaylord’s press release, were called “Cover your A_ _” However, to protect his “prerogatives” for the future, Gaylord continues to insist that he has the authority to determine if referendums are “valid” based upon his determination of whether they are subject to potential court challenge.
I am not a lawyer, but I understand that virtually anything can be subject to court challenge. Our state-wide referendums are regularly subjected to court challenge, but with the requisite signatures, we still have referendums. Why should this not be the case for San Juan citizens?
Finally, I am disturbed by the comment “Prosecuting Attorney Gaylord says that he will work with the council to create a fair and clear process for dealing with citizens who wish to exercise their right to petition for a vote on initiative or referendum issues.” The Council does not have the right to create processes to circumvent or control (approval by Gaylord, for instance) the referendum process. The Charter details the process, and the Council does not have the right to amend the Charter except through the ballot box.
Study history, and you quickly learn that while every dictatorship is unique, they all start in precisely the same way: with one event that at the time seems trivial – but in retrospect was the first step on the road toward totalitarianism.
When Alex Gavora and more than 2,000 voters signed their names to a petition for a referendum opposing your Stormwater Utility fee – a referendum allowed under the Home Rule charter you are sworn to uphold -- you could have done the honest thing. You could have let this referendum appear on the ballot, and campaigned vigorously against it. After all, that is how issues are decided in democracies. Instead, you have twice sent the sheriff to deliver a summons to Alex to entangle her in so much legal trouble and expense that she’ll withdraw the referendum itself. You probably think you’ve found a clever way to stop an initiative you don’t like. In fact, you’ve done much more than that.
For the first time in our county’s history, you have used the power of the State to intimidate a citizen. This is precisely how the communists got started in the Soviet Union, and it’s precisely how the Nazis destroyed democracy in Germany. And – just like the communists and the Nazis – you claim to have had no choice but to act as you did because of the advice you’d received from your lawyers. (And, again just like in the Soviet Union and in Nazi Germany, there was an armed policeman willing to obey orders rather than to tell the politicians to take a flying jump and risk the consequences.)
You may think I’m exaggerating, and making the proverbial mountain out of a molehill. No, I’m not. Thanks to your actions, at issue now is neither the Stormwater utility fee nor the proposed referendum. At issue now is our democracy itself. Those of you on our County Council who have voted to use the power of the State to intimidate a citizen – Howie Rosenfeld and Rich Peterson are the notable exceptions – have set a precedent that none of us who live in these islands ever imagined we would see.
You ought to be ashamed of yourselves.
Friday Harbor WA 98250
If I could add a bit to Gordy Petersen's recent and excellent letter/column.
To the Editor:
On June 15, 2007, the SJC Planning Director signed a legal declaration, under penalty of perjury, addressed to the Growth Management Hearings Board, stating that the County's Storm Water Utility and the so called "service fee" that all SJC property owners must pay, were imposed only to meet the State's Growth Management Act's requirements for the Eastsound Urban Growth Area (UGA).
A bad BOCC decision in 1999 to create UGAs at Eastsound and Lopez "Village" continues to grow into a perfect storm of governmental incompetence. The current Council refuses to reconsider, believing that they have "the right to rule". In such an authoritarian atmosphere, admitting mistakes becomes impossible. It's all a perfect example of how when local governments make real estate development their top priority, or even their only priority, people's needs for health, safety, security and control over authoritarian political power are soon forgotten.