A dangerous legal loophole over what 'rural' means

No "Bright Line" in rural zoning disputes, the Washington Supreme Court says. County governments are left to call 'em as they see 'em.
No "Bright Line" in rural zoning disputes, the Washington Supreme Court says. County governments are left to call 'em as they see 'em.

Citizens whose passion is keeping McMansions out of the meadows cheered last week, when the Washington Supreme Court seemed to rule in their favor in a major growth-management case. On second reading, some of the anti-sprawl advocates are wondering if the cheering was premature.

The ruling, in a case known as Gold Star Resorts v Futurewise, came in two parts. The first appears to reduce the density of development in rural areas, while the second part could increase it.

In the esoteric language of land use, the case centered on what are known as LAMIRDs. Having nothing to do with either lambs or birds, LAMIRD means Limited Areas of More Intense Rural Development — land around unincorporated urban settlements in areas that are zoned as rural. Crossroads, small towns, freeway intersections: There are hundreds of them statewide.

The court ruled that Whatcom County, and by logical extension other counties as well, should tighten regulations on the use of undeveloped land inside its LAMIRDs. The outcome would be less development in rural areas.

But in the second part of its opinion, the court said there's no "bright line" on rural density, no state law that defines what "rural" means, or the right amount of development to allow there. The state's Growth Management Act says the counties have to protect "rural character" but leaves it up to local governments and regional GMA Hearing Boards to decide how many houses can be built there before they're no longer rural.

"It's a dandy little problem in the statute," says Richard Wilson, a veteran land use attorney with the firm of Hillis Clark Martin and Peterson in Seattle. "Urban Growth is defined, as are Forest Lands, Agricultural Lands, Recreational Lands, and so forth. But Rural Lands are defined as anything... that's left over."

In most of the state, including King County, the standard for permitting houses in rural areas has been one house per five acres. That's been the rule in Whatcom County, where Gold Star v Futurewise began. But the Whatcom County Planning Commission has recommended lowering that density on some rural lands, to one house per ten acres.

That "down-zoning" recommendation stoked an intense political backlash in the far north county, supported by the Building Industry Association of Washington. The goal was to replace incumbent, anti-sprawl county council members with those of a conservative faction that would incline toward slapping down the planning commission's proposal. It worked. The new Whatcom County Council, to be seated in January, looks to have a one-vote majority emphasizing property rights and reconsidering rural zoning. Just in time for the state Supreme Court to remind everyone that there's no state law defining what's rural and what isn't.

It leads to some "nightmarish prospects," says Whatcom County Council Chair Seth Fleetwood, who's leaving the county position for the Bellingham City Council. "The court seems to have left rural density to be decided by county politics, and the council could set a density in rural areas that's more urban than rural." Fleetwood suggested that state legislators from Whatcom County should draft a bill to put the rural density issue before the 2010 Legislature.

Council member Carl Weimer, like Fleetwood a strong supporter of growth management and sprawl control, says efforts to rewrite county rules on rural zoning will cost county taxpayers a lot of money. "My understanding of this [Supreme Court ruling] is that nobody knows what it means," Weimer told Crosscut. "The county could go with something that's been upheld by Growth Management Boards — that's one house per five acres — or try something that would increase density in rural areas and spend a lot of taxpayers' money being challenged. Then wind up back in front of the Growth Management board and here we go again. It will be a waste of time and money."

Sam Crawford, a conservative county council member expected to be part of the new property rights majority, doesn't expect an immediate push to overturn rural standards that have been in place for a decade. "I think there are some people who've been deprived unfairly of the right to use their property, and we need to work on that," he told Crosscut." But I don't think there will be any reason to rush out and start rezoning everything."

"Maybe rural is a lot like smut," says Seattle attorney Wilson. "Hard to define, but everyone knows it when they see it."


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About the Authors & Contributors

Bob Simmons

Bob Simmons is a longtime KING-TV reporter who has been writing news for print and television for 65 years.