The Castle at the Top of the Hill:

Conflict between Western Washington University and the surrounding community

Report to the Bellingham Planning Commission

April 3, 1997

Public Good Project
P.O. Box 28547
Bellingham, WA 98228


This report consists of five major parts:


Requests for remedy from the Commission


Issue: Law

Previously, there has been some confusion and uncertainty regarding the controlling law regarding the Master Plan. In order to keep the process on track, we have identified some portions of the Growth Management Act in the Revised Code of Washington and the Washington Administrative Code that may help to clarify the situation. The overall sections are RCW 36.70A and WAC 365-195.

The following questions regarding the broader issues involving growth management are addressed:

  1. What governs the relationship of the Master Plan to the City Comprehensive plan and its neighborhood sub-area plans?
  2. Is the WWU neighborhood plan an amendment or a new proposal?
  3. What are the mandatory elements which must be addressed?
  4. Does the University adequately accommodate the GMA goals?

1) What governs the relationship of the Master Plan to the City Comprehensive plan and its neighborhood sub-area plans?

The short answer is that the City comprehensive plan process governs through the GMA.

Specifically, RCW 36.70A.103 states "State agencies shall comply with the local comprehensive plans and development regulations and amendments thereto adopted pursuant to this chapter." Likewise, WAC 365-195-765, State agency compliance, reads in part: "(4) ...policy contained in the act implies a requirement that all programs at the state level accommodate the outcomes of the growth management process wherever possible. ... The discretion they exercise should now take into account the new reality of legislatively mandated local growth management programs." We read this to suggest that the University process is guided by the City process and not the other way around.

2) Is the WWU neighborhood plan an amendment or a new proposal?

The short answer is that the WWU Draft Master Plan is an amendment, albeit a major one, to the existing WWU neighborhood sub-area plan.

It is the position of the City that the WWU neighborhood plan is an "initial adoption of a sub-area plan." [Telephone conversation with Jackie Lynch, 4/1/97 citing electronic memo from City attorney.] We disagree. The record shows that this is an amendment to existing sub-area plans which are already in existence and are available at the desk of the City Planning office. This is not the first time that the City has visited the WWU neighborhood plan and copies of the previous plan were introduced at the March 27, 1997 planning commission meeting. The usual language in City memos and conversation is that the current WWU neighborhood plan process is an "update." We believe that this supports the view of the current planning process as an amendment, rather than as an "initial adoption."

3) What are the mandatory elements which must be addressed?

RCW 36.70A.070 and WAC 365-195-300 list the mandatory elements as: land use, housing, capital facilities, utilities and transportation. The Master Plan does not address capital facilities adequately. We believe that this should be covered in sufficient detail to show that the University has adequate funds for its proposed current and future development activities as well as on-going maintenance and property acquisition.

4) Does the University adequately accommodate the GMA goals?

The short answer is "no," but a better answer is "not yet." We do not believe that the University has adequately accommodated GMA goals. With the assistance of the City they will not only be able to do so, but will have a better Master Plan for doing so. RCW 36.70A.020 sets forth the GMA planning goals which are included here by reference. We believe that the University has not adequately accommodated:

(1) Urban growth. The University is a "hyper-urban" environment. It has very high housing and population density; a projected 20% growth rate over the next decade; high vehicular, pedestrian, bicycle and transit traffic; and other features that make it a "super-city" with a city. The view of colleges and universities as corporate entities with their own variety of jurisdiction and residing within municipal corporations is quite ancient and addressed in the current WWU neighborhood plan. See RCW 36.70A.030(14).

(2) Reduce sprawl. The Master Plan includes a sizeable "annexation area" to the south of Bill McDonald Parkway. The record does not show what uses this area is devoted to, but the University has been acquiring property in this area for a considerable period of time. Major University facilities, including the Physical Plant, Archives, and a storm water treatment facility are either in existence or soon to be under construction. Informally, the University has stated additional uses for the annexation area which include open space, recreational facilities, parking, warehousing, student housing and a day care center. None of these uses are formally incorporated in the Master Plan.

(6) Property Rights. The University needs to make a positive showing that it is addressing the issue of property rights in its proposed annexation areas. The record is currently lacking such a showing. The University does include relocation costs and other negative effects as impacts on property owners, but mitigation of these impacts is not discussed.

(11) Citizen Participation. This is perhaps the largest and most serious omission by the University. An examination of the record shows that the planning process as envisioned by the University treats participation as a milestone to be passed, rather than a basic goal to be accommodated. The overall issue of citizen participation is addressed in the following section on "Process."

Colleges and universities have a historical position as one of the earliest and most durable corporate entities in Western culture. It is unfortunate that the legislature has not provided specific guidance for university planning and the impacts of universities on municipal corporations within the GMA. As a result, the University has fallen between two stools. Their Master Planning process has slowly begun to incorporate GMA goals and process, but full compliance with the law will require disentangling their ongoing development plan for current institutionally zoned areas from the City institutional master planning process and the neighborhood sub-area planning processes. Requests for remedy 1, 3, 4, 5, and 6 address the deficiencies of the Master Plan under GMA. The major change which has arrived with the "new reality" mentioned in WAC 365-195-765 is a shift from plans and the planning process being considered as transitory events to planning becoming a continuous and on-going permanent feature of state agency actions. Under the pre-GMA conditions, plans were static objects, things, commodities, something to be produced and then put on the shelf and only taken down when there was a specific need for them. The new reality of GMA makes planning an integral and continuous activity of state agencies, a process, an on-going two way communications between citizens, planners, project proponents and government agencies.

The essence of the shift is the change in emphasis from plans to planning, from the production of plans as commodities for others to consume to an interactive process that is continuously gathering new information, setting long term goals, gaining stability through understanding, communication and agreement, and assuring that area-wide needs and aspirations are recognized, addressed and acted upon.

All parties need to locate and study the relevant law which applies to the interaction of WWU, the City, and the neighbors. Each of these three parties have their own long-term goals and aspirations. The conflict arises because not all of these goals are compatible and consistent. Law is the ultimate basis of reasoned process. It is also a forum for the discovery of facts, the evaluation of evidence, the testing of proof and the application of the law to this proof.

At this point in time, both the University and the City has had recourse to professional legal advice, but the neighbors have not. This has created an imbalance of power, where the neighbors do not know what they don't know about the process under the law. In relying on the legal advice and opinion of the other two parties, the neighbors have effectively surrendered their rights to the City and the University. Since it appears clear from the record that neither the City nor the University has fully studied the governing legal situation, this places all parties in a position of uncertainty.

Requests for remedy 1, 2, and 4 attempt to address this uncertainty. Request 2, which asks the City for written clarification of the planning process for neighborhood sub-area plans addresses the City's responsibility for a reasoned process. Request 1, which asks for the involvement of DCTED in this planning process, addresses the need for all parties to become familiar with the GMA and other statutes and codes. Request 4, which asks the City to examine the SEPA process, asks the Commission to address the process requirements of GMA for "early and continuous," as well as "iterative and interactive" involvement in the planning process.


Issue: Process

Under GMA, public process is a form of participatory democracy which includes scoping, presentations of alternatives, comment, hearings, legislation, review and appeal. the process is cyclic, rather than linear. One example of a cyclic process is the iterative sequence of observe, orient, decide and act used by the U.S. military. Cyclic processes include looping in their flowcharts. The University process shown as "Scope of Work" in the Master Plan displays no such loops.

Public participation is an important part of GMA. In Snohomish v. Anderson, the Washington Supreme Court at page 157, footnote 6, states that "RCW 36.70A.140 reads in pertinent portion:

'Each city and county is required... to plan... RCW 36.70A.040 shall establish procedures for early and continuous public participation in the development and amendment of comprehensive plans and development regulations implementing such plans.' [ellipses in original]

"The procedures shall provide for broad dissemination of proposals and alternatives, opportunity for written comments, public meetings after effective notice, provision for open discussion, communication programs, information services and consideration of and response to public comments."

A Growth Management pamphlet, "Questions and Answers About the Growth Planning Hearings Boards," states that "ensuring extensive public participation remains the responsibility of local governments." RCW 36.70A.103 makes it clear that state agencies, such as the University, "shall comply" with local planning processes. This suggest that University provision of public participation starts as soon as the City receives notice that planning, such as the Master Plan, is under way and, furthermore, that the City has a responsibility to ensure that such public participation meets GMA requirements.

If this view of public participation is correct, then the University's "Review of Master Plan Process" dated February 5, 1997 shows that GMA goals should have been addressed as early as December 10, 1991 or the meeting between the University Facilities and Master Planning Staff and the City which took place shortly thereafter.

A cursory examination of the record fails to discover much indication that either the University, the City, or the neighbors have shouldered their responsibility to ascertain their rights and duties under the law.

Looking at Western Washington Growth Management Hearings Board rulings we discover additional guidance regarding process under GMA.

In the Board's Final Order in North Cascades Audubon Society et al vs. Whatcom County, No. 94-2-0001, at page 11, we find

"The GMA requires a dual process; both iterative and interactive. An iterative process is one that involves a number of drafts, adjustments and reiterations over a period of time as information is available, additional decisions, etc. An interactive process involves people participating in a dialog, expressing their opinions and responding to those opinions expressed by others."

Later in the same Final Order, we find on p. 13 a discussion of the reasoned aspect of the deliberation and decision-making process. The Board cites their earlier decision in Clark County at page 6, where the question of reasoned choices

"Addresses the separate issue of the reasonableness of the process independent of public participation. It is possible to have a process with extensive public participation, but with decisions based on inappropriate factors and which ignore appropriate factors."

and

"Reasoned choices utilizing information available to them that was appropriate, necessary and contained in the record. (italics supplied [by the Board])"

Finally, the Board offers in Final Decision and Order for Whatcom Environmental Council et al. vs. Whatcom County, No. 95-2-0071 at page 4 that public participation goals and requirements of GMA can be affected by unduly limiting the scope of a plan and the extent of public hearings.

Additional guidance on growth management can be found in the Washington Administrative Code (WAC) 365-195. While this report is not an exhaustive summary of the WACs which apply to GMA, the following four citations give some useful information:

WAC 365-195-600 Coordinating with other plans - describes the circulation of plans to other jurisdictions.

WAC 365-195-600 Public Participation - provides recommendations for meeting requirements.

WAC 365-195-620 Submission to state - addresses notification of various state agencies.

WAC 365-195-640 Record of process - particularly sections (2) which requires a "complete exposition of how public process requirements were met" and section (4) which states that "any amendment... should conform to the same requirements as the initial plan." As we stated earlier in this report, we believe the process involving the Master Plan should be addressed as an amendment to the Comprehensive Plan's WWU neighborhood sub-area plan. Section (4) offers some guidance for request for remedy 2 in that any process documents used for the City comprehensive plan should provide guidance for the requested neighborhood sub-area planning process.

In summary, our research suggests the following participation elements should be considered:

Our requests for remedy are all directed towards clarifying, simplifying and separating the processes requiring public participation.


Background Analysis

Public Good's involvement began with informal requests to provide investigative research and documentation services regarding a potential conflict over the impact of the Master Plan on the Happy Valley neighborhood. We examined some of the materials available on the World Wide Web at NorthWest Citizen's site http://nwcitizen.com, provided video documentation of the February 20, 1997 Commission meeting and began a preliminary investigation. In the course of these activities, we determined that the conflict fell within Public Good's mission to enter into conflicts where democracy is at risk. Further information on Public Good is available at http://nwcitizen.com/publicgood.

Accordingly, we began an investigative research project into the conflict surrounding the Master Plan. Our preliminary conclusion is that the locus of the conflict involves the collision of the participatory democracy form of government and the administrative form of government.

It is Public Good's position that democracy is not a form of government, but rather that is the basic form of all governments. All government has its foundation of power and authority in the consent of the governed. This consent is composed of the assent and dissent of various factions, but underlying the contest of ideas is the overarching consent to agree to disagree. When this consent is withdrawn, a government falls and is reconstituted in a different form. [Scott Buchanan, "Eleven Propositions About Justice, Consent and Guilt" in So Reason Can Rule: Reflections on Law and Politics, Farrar, Straus, Girous, New York, 1982]

Thus democracy is seen as a process, an action, a participation in governance. Democracy is not a commodity to be consumed. It is the active composition of assents and dissents which make up the consent to govern and be governed through the rule of reason. A key element of democratic process is the empowerment of ideas through consent and consensus. It is crucial to democracy that it contains a reasoned process by which truth and justice -- even if held by a relatively powerless minority -- shall become the policy of the powerful.

Administration, on the other hand, is a governmental form in which power and authority is vested in a strictly hierarchical institution. Where democracy speaks with many voices, administration speaks with only one. An administration's lines of communication and authority are clear, rigid and well-defined. The single voice and mind of administration gives it the ability to concentrate tremendous power and authority in pursuit of particular goals. In our constitutional republican democracy, the administrative form is incorporated in the executive branch of government. This allows the efficient execution of policy. These policies are generally determined by the governed through the legislative process of reasoned discussion leading to consent.

The danger of the administrative form of government is that it will fail to journey to the well of democracy to refresh itself. When this refreshment of ideas fails to occur -- as is required by law -- an administration may find itself in conflict with both the law and the populace. This is not a rare or infrequent danger, as has been seen in a variety of governmental scandals such as the various "gate" affairs: Watergate, Iran-Contra, and the covert arming of Iraq. Accordingly, the people -- acting through their legislature -- have passed a variety of statutes to limit the power of the administrative arm of government and require the continual refreshment of administrative vision by the wisdom of citizen participation in policymaking.

In the case before the Commission, the guiding law is the Growth Management Act (GMA) [RCW 36.70A and WAC 365-195]. The Master Plan was originally initiated as an internal policymaking activity by the university administration under President Mortimer in 1990. It has continued forward since then, partly under its own power and partly under the power of additional legal and public processes that have joined the University's process at successive steps. Early in the Master Plan, the State Environmental Policy Act (SEPA) was incorporated into the process. This allowed some degree of public participation. Now that the Master Plan has reached the stage of being incorporated into the Bellingham Comprehensive Plan, the GMA is now fully engaged.

An examination of the record shows that GMA was not adequately considered at previous times, particularly in the matter of public participation. This is both unfortunate and also understandable. It is unfortunate because the GMA requires "early and continuous" public participation. While there was public participation at certain points in the Master Plan process, it does not seem to have been either early or continuous. Most striking is the failure of Western Washington University to reach out to the community early in the visioning process. What visioning occurred seems entirely inwardly directed and devoted solely to goals which involve only the University's mission as an academic and cultural institution. The lack of consideration of GMA goals and process is understandable, since GMA was co-evolving with the Master Plan and there does not seem to have been any earlier time at which the University was confronted with GMA issues. An examination of the record suggests that as the University -- acting both as proponent and lead agency -- determined their own planning process. Legal requirements and authorities were regarded as "milestones" to be met and passed, rather than goals to be included.

The City also has a role and responsibility. Foremost among the City's responsibilities is guaranteeing that GMA goals and processes are addressed and discharged. As stated earlier in this report, it is our opinion that the City's responsibility began as early as 1991 when the University first gave notice that it was beginning its Master Planning process. The Master Plan and the City Comprehensive Plan must be in harmony with each other. Since the Comprehensive Plan governs the process, we believe that the City Department of Planning and Community Development has responsibility for ensuring the University's process incorporates GMA goals. In a cursory examination of the record, we find no evidence that this has occurred. Additionally, the City, through the City Council, has a legislative role to play and a deliberative and advisory role, through the Planning Commission.

The residents of the adjacent neighborhoods also have roles and responsibilities. It is the duty of all citizens to know and understand the law, as well as to obey it. Most of the neighbors have relied on the City and the University to set the process and execute it. There have been opportunities for appeal of both the SEPA and EIS. No such appeals have been made. This suggests that the neighbors see the role of the City and the University to include serving as facilitators of the neighbors own advocacy. This is both passive and unrealistic. The City and the University have their own roles to play as proponents of their various interests. The neighbors must be their own proponents and enter fully into the process.

Now that the matter has come before the Commission, it is imperative that the deficiencies in the process be addressed. The state of the conflict between the University and the community is such that absent a very active intervention by the Commission, this conflict will almost certainly be carried into other venues, such as the Growth Management Hearings Board over GMA issues or federal court over constitutional issues under the Fifth and Fourteenth Amendments regarding property rights and due process. A remedy here and now will remove the need to seek remedy elsewhere and later.

The Commission has many resources that it can mobilize to address the conflict. The Commission should undertake to study the problems seriously and thoroughly to determine what other remedies can be supplied to keep the process moving forward and bring as many parties as possible to the table. The Washington Department of Community, Trade and Economic Development (DCTED) has considerable resources which it can contribute. The Commission should contact them and explore what assistance DCTED can provide. One particular form of assistance that the Commission can offer is to assume the role of lead agency on those parts of the Bellingham Comprehensive Plan's University Neighborhood Sub-area Plan where the University is encountering difficulty due to its simultaneous role as both proponent and lead agency.

The collision of interests between the City and the University -- with their administrative approach to governance -- and the community -- with its participatory democracy approach to governance -- looks at first sight to be a Donnybrook Faire. It is important to remember that Donnybrook is first and foremost a gathering together. Administration is staid, reserved, predictable, stable and uncommunicative. Participatory democracy is loud, impassioned, enthusiastic, tumultuous, chaotic and unpredictable. It is perfectly ordinary and expectable that first encounters will be somewhat contentious. With the assistance of the Commission, it should be possible to put things back on the rails so that even if things don't turn out to be a picnic, at least it won't degenerate into a bar fight.


Appendix

The documents in the appendix are available by calling the Bellingham City Planning Department at (360) 676-6982. Ask for the appendix to "Castle on the Hill" in the Western Washington University Neighborhood Plan update file with the Bellingham Planning Commission.

Pamphlet: "An Overview of the Growth Mangement Act"

Snohomish County v. Anderson -- Washington State Supreme Court decision

Pamphlet: "The Growth Planning Hearings Boards"

North Cascades Audubon Society et al. vs. Whatcom County -- Western Washington Growth Management Hearings Board Final Order No. 94-2-0001

Whatcom Environmental Council vs. Whatcom County -- Western Washington Growth Management Hearings Board Final Decision and Order No. 95-2-0071


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