Land Use Lockdown

Spokane County’s attempt to use an “emergency” to site a new jail on the West Plains hits a wall of opposition at the Spokane County Planning Commission.

By Tim Connor
Last Thursday morning, Spokane County Sheriff’s Office (SCSO) Lt. Mike Sparber was the only one in the county’s public works hearing room wearing a gun. But as Sparber sought to make the case to put a new jail in west Spokane County, his Glock pistol was of no use at all. The project manager for the SCSO’s new jail campaign found himself fending off complaints from a hostile, though unarmed, audience and being sharply questioned by skeptical Spokane Planning Commission members.

Given the contentious nature of the new jail debate–pitting a well-organized No New Jail citizen movement against a very determined Sheriff and County Commission—it was inevitable that much of Thursday’s debate was over the need for the new jail.

But the argument du jour–given that the Planning Commission’s bailiwick is land use–was whether the “emergency” plan to site the facility could pass legal muster under the state’s Growth Management Act (GMA). In fairness to the Lieutenant, he has not been deputized, as yet, to defend the county’s penchant for openly defying state land use law and the county’s own comprehensive plan.  That task usually falls to the county’s lawyers. Still, the arguments from Sparber and his co-presenters last Thursday, left more than jail critics shaking their heads.

Perhaps the clearest signal about what lies ahead in the land use chapter of the jail controversy came from Dan Ross, the City Administrator for Medical Lake. Medical Lake is just a few miles west of where the county wants to site the jail. The nearby City of Airway Heights is also on record opposing the new jail proposal.

“We all adhere to these ground rules,” Ross told the Planning Commission after explaining the purpose and procedures of the GMA. “Even when the City of Medical Lake goes through its growth management updates, we have to show proof that there’s a need. And there’s no proof that there’s a need for four hundred twenty-nine acres zoned light industrial. Absolutely none.”

As he began speaking, Ross said he was going to take the “passion” out of the subject and address only the legal issues related to the land use decisions. But the frustration in his voice still mounted as he spoke and he wound up apologizing, half in jest, for his “diatribe.”

If there is a camouflage that protects Spokane’s county commissioners from accountability on land use issues it begins with a sad truth. Even though the economic and quality of life stakes are very high, the land use planning and regulatory process itself is about as tedious and boring as government gets. It comes complete with a vocabulary of terms and acronyms that can be used in place of anesthesia to perform invasive procedures on whole communities.

But, in English, here’s what’s going on. The GMA is a law intended to discourage urban sprawl. Among other things, it encourages development inside existing urban growth corridors. The legal and regulatory limits on sprawl are not just about aesthetics and the protection of farm land and green belts. There are serious (but often hidden) economic costs associated with urban sprawl because of the strains sprawl puts on public infrastructure. As much as anything, the GMA is intended to protect taxpayers from the consequences of unplanned, unregulated growth.

For that reason, there is supposed to be an orderly process for zoning changes within urban growth areas and methodical planning and justification for expansions to the urban growth areas. These are the “ground rules” that Ross was referencing in his animated comments to the Planning Commission.

In this particular case, the County Commissioner’s decided last September to declare an emergency so that the county could simply exempt the jail from the normal, GMA planning process. This was done so the jail can be sited on land near the Medical Lake interchange on Interstate-90, land that is currently zoned rural traditional and located outside the county’s existing urban growth area. Although the jail site itself would just be 40 acres, the total size of the requested urban growth area expansion would be ten times greater, roughly the size of 324 football fields.

The story of the “Medical Lake Interchange Site” would be incomplete without the following key fact. As even John Pederson, the county’s Planning Director, concedes, the county has a vast surplus of unused land that is zoned light industrial. On that basis alone, the justification for expanding the UGA to devour hundreds more acres of rural land for industrial development would be a very hard sell to the state’s land use appeals board and the courts.

Yet, as Pederson matter-of-factly confirmed to the Planning Commission, the county’s solution was to move the jail siting decision along  “as an emergency amendment.”

The problem the county and Planning Commission face now is that—notwithstanding the political pressure of the moment—there’s no evidence in the record that it’s a valid emergency.

In the letter CFJ attorney Rick Eichstaedt sent to the Planning Commission last week, he quoted from the County’s own comprehensive plan requirement that the board “approve written findings that document the nature of the emergency” being declared.

The County Commissioners simply didn’t bother. In the 9/28/10 resolution adopted over Mager’s objection there are no findings, at all, to “document the nature of the emergency.”

Pederson, the county’s planning director, offered no explanation to the Planning Commission as to what the “emergency” was all about. It thus fell to Lt. Sparber to fill in that blank and defend the proposition that the county faces a pressing jail overcrowding situation. As the Inlander pointed in a lengthy article last summer (entitled “The Sheriff and His Jail”), it’s not an easy case to make. The county jail population has actually declined by nearly 30 percent in the past two years.

As he began speaking, Dan Ross, the City Administrator for the City of Medical Lake, said he was going to take the “passion” out of the subject and address only the legal issues related to the land use decisions. But the frustration in his voice still mounted as he spoke and he wound up apologizing, half in jest, for his “diatribe.”

“So,” Sparber said after he tried to explain why the jail population had declined, “long story short, we were at 1,100, it dipped won into 700 (sic) and now we’re back up over 800. So we’ve had our honeymoon period and I think we’re starting to go back up on the population.”

Sparber did not use the word “emergency.” But he did add a piece that clearly inflames the debate as to whether Sheriff Ozzie Knezovich and the commissioners are acting in good faith. It has to do with the Geiger Correction facility at the Spokane International Airport, where the county houses hundreds of prisoners in former army barracks. In his presentation to the Planning Commission, Sparber said the airport “has asked us to leave the property by 2013, not renew our lease.”

A stronger statement resides on the Sheriff’s website, from an April 2010 report prepared by county consultants:

“Because the Spokane Airport Board plans to terminate the Geiger Corrections Facility lease in 2013, the beds in that facility will need to be replaced.”

But that’s not exactly what the Airport board has said.

When No New Jail activist Michael Poulin took his turn at the microphone last Thursday, he challenged Sparber to produce the evidence.

“There’s no record of the airport board telling the sheriff—no record we can find—of the airport board telling the sheriff they have to leave,” Poulin said. “None whatsoever. We haven’t been able to find any such record. We think the sheriff made that up out of whole cloth.”

That was enough to get the attention of Planning Commission member Edward Neunherz, who asked  Sparber to elaborate.

“The reason I ask,” Neunherz said, “is because it has a bearing, in my opinion, on how we approve or disapprove the land usage here. I would like to ask the lieutenant to respond to that, because there’s a conflict here. We need to resolve that particular issue right now.”

Sparber replied that the Sheriff’s office has “spoken to the board, the airport board, on numerous occasions. Is there anything printed? We don’t have…. It was at the direction of the board.”

Sparber then added that he did have an email from Todd Woodard, the airport’s marketing and public relations director, that corroborated the conversations.

“I think if I understood it,” Neunherz then said to Sparber, “you’re concurring that there is no written eviction notice.”

Sparber answered, “no,” apparently agreeing with Neunherz.

Then Sparber said he “would just challenge No New Jails to pen a letter to the Spokane International Airport and ask the question.”

Minutes later Lucy Lennox, a leader of the No New Jails group, came to the microphone to report that at a neighborhood meeting in Spokane she attended earlier in the week, City Council President and Airport Board member Joe Shogan told the audience that “the airport board has never given any direction to vacate that site” and that “it was the Sheriff’s department that came and told the [Airport] board” that it would be abandoning Geiger.

When reached Friday and asked to comment on Lennox’s characterization of what he’d said, Shogan replied, “I’m not going to comment on what she said, I wasn’t there [at the Planning Commission].”

To which he added: “You can quote me that I don’t feel like the Airport board should be taking the brunt of this as far as Geiger goes.”

Shogan then insisted that I speak to Spokane business leader Dave Clack, a seven-year veteran of the Airport board.

“Unless you talk to Dave Clack,” Shogan said, “you won’t have a full history of this, and your story won’t be accurate.”

Clack, when I reached him Friday afternoon, was happy to oblige. He said the Airport board’s discussions with the Sheriff’s office about Geiger grew out of strategic planning initiated a decade ago by then Sheriff Mark Sterk. Out of those discussions, Clack said, the board and the Sheriff’s Office generally agreed that because of the age of the Geiger barracks and the increasing economic value of the twenty acre property for commercial leases, it would make sense for the County to invest elsewhere in a new jail facility, and for the airport to re-develop and lease the property for commercial use.

“It was a case,” Clack said, “in which it was obvious that when 2013 came around that our [the Airport board’s] preference is not to enter into negotiations for a lease extension.”

But Clack quickly added, “we’re not going to be a hardball landlord,” and couldn’t be, he explained because, after all, the city and the county are joint owners of the property that the Airport board manages.

Like Shogan, who has served on the Airport board for six years, Clack had no recollection of the board ever formally voting on a resolution to notify the county that it would move to evict the correctional facility in 2013.

Image via Wikimedia

“There’s no record of the airport board telling the sheriff—no record we can find—of the airport board telling the sheriff they have to leave,” Michael Poulin testified. “None whatsoever. We haven’t been able to find any such record. We think the sheriff made that up out of whole cloth.”

When I spoke with Todd Woodard, the airport official whom Sparber had cited to the Planning Commission, Woodard corroborated what Sparber said. Yet, like Clack, he also pointed out how the Airport board, as a creature of the city and the county, is by necessity a gentle landlord.

“We’re not in a position to be heavy-handed in terms of telling them what to do,” Woodard said.

What I didn’t know when I spoke with Shogan, Clack and Woodard is that, as a result of the collision before the Planning Commission on Thursday, County Commissioner Mark Richard (a strong proponent of the new jail and himself an Airport board member) requested the Airport board to put something in writing to clarify its position.

Richards’s request quickly led to a memo to Richard from Interim Airport Director Skip Davis. The memo, in full, says this:

“Since 2005, the Spokane Airport Board has consistently stated that it does not wish to continue the lease with Spokane County for the Geiger Corrections Facility beyond August 31, 2013. However, the Board is willing to accommodate a short-term, month-to-month arrangement in the event a new incarceration center is not completed by the expiration of the lease.”

People can decide for themselves whether the Airport board’s memo creates an “emergency.”

Seal of Spokane County, Washington
Image via Wikipedia

But as Medical Lake City Administrator Dan Ross and others pointed out last Thursday, the “emergency” land use procedure strains credulity when one considers that the normal process for considering expansions to the urban growth area is actually ripe, now, to consider a proposed UGA expansion on the merits. Indeed, one surreal feature of last Thursday’s meeting was Pederson’s casual reminder to the Planning Commission that the “normal” process for considering changes to the comprehensive plan was actually part of the agenda for Thursday’s meeting.

“We are doing that process right now,” Pederson acknowledged, noting that the ten-year process was in its last year.

It wasn’t just that the emergency maneuver drew objection from Medical Lake and the Center for Justice. The state’s Department of Commerce also objects.

In a letter sent last week to Pederson, former Spokane County planner Bruce Hunt, who now works for commerce department, delivered a forceful critique, one with obvious legal ramifications if the County persists on its course.

“The staff report shows no signatures from the public service providers for urban water and sewer services,” the letter notes, “and yet, the City of Spokane is identified as the service provider for urban water and urban sewer services to this site. We do not see that coordination with the City of Spokane for these services has been agreed to by the City. Conversely, we do not find in the staff report an updated Capital Facilities Plan showing that the County can provide the urban services adding 429 acres of rural land to the UGA.”

Hunt’s letter also noted that the County “remains non-compliant and invalid for failing to contain urban-style development to UGAs and failing to provide adequate environmental analysis for such urban-style development.”

[The reference is to a north Spokane County case that the Center and Rick Eichstaedt have litigated on behalf of a local group of citizens.]

Ross, speaking for the City of Medical Lake, went even further. He not only challenged the legality of the “emergency” UGA expansion gambit, but he tore into the credibility of the county report that ranked the Medical Lake interchange site third highest. Ross insisted that the Medical Lake interchange site should have been ranked even lower in the “qualitative analysis” because the report did not accurately reflect the actual physical and legal problems at the site.

“I want to clarify that the site in front of you [the so-called “Medical Lake interchange” site] is actually the third highest ranking site,” Ross told the Planning Commission. “And, quite honestly, that site scored points for comprehensive plan compatibility which it shouldn’t have because it’s not compatible with the comprehensive plan, as it’s not even in the urban growth area. It scored for utilities and it shouldn’t have because it’s illegal to run utilities outside of your urban growth area. And it scored for transportation. And if you look at that 429 acres and you close your eyes and imagine that fully developing with light industrial, because that is what is being asked, that interchange cannot handle 429 acres of light industrial land. You can say, ‘oh, we’ll figure it out as the development comes along,’ but that really flies in the face of what the Growth Management Act tries to do.”

It was clear thought last Thursday’s hearing that the Planning Commission was struggling with whether it would lend its blessing to the county’s emergency declaration and allow the siting to go forward.

“Is it the position of your clients,” commissioner Peter Rayner pressed Eichstaedt, “that the county cannot, for its own reasons, ignore existing light industrial [land] to go to what the Sheriff says is a ‘mo better’ process or place? Are you saying they can’t do that under the Growth Management Act? I’m struggling with that…

“Sure,” Eichstaedt said, acknowledging that’s exactly what he was saying.

“But a jail is a very different animal,” Rayner interjected.

“It is,” Eichstaedt replied, “but this action before you is not approving the jail, it is approving the expansion of an urban growth area, and it’s approving the re-zone to light industrial. You’re not putting your rubber stamp on the jail. You’re solely taking land use actions.”

“We all adhere to these ground rules. Even when the City of Medical Lake goes through its growth management updates, we have to show proof that there’s a need. And there’s no proof that there’s a need for four hundred twenty-nine acres zoned light industrial. Absolutely none.”–Medical Lake City Administrator Dan Ross.

The last person to testify was the former County Commissioner, Bonnie Mager. Mager voted against the emergency resolution last fall, before she was defeated for re-election. She was appearing on behalf of the Neighborhood Alliance which joined Futurewise in endorsing Eichstaedt’s letter, which had been prepared on behalf of another CFJ client, the Peace & Justice Action League of Spokane.

“It’s not an emergency now,” Mager said. “And it’s less of an emergency now than when the board passed it.”

If the emergency action to add the land to the urban growth area goes forward, she warned them, “it would be very costly, because it will be appealed on several fronts, and it is costly to defend appeals.”

The board then closed the hearing, moving to keep the record open for additional comments until it convenes, at a later date, to render its decision.


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