Whether industrial development along the Chelatchie Prairie Railroad can hook up to urban sewer utilities remains a major sticking point to move forward on a law passed nearly six years ago.
The Clark County Council hosted a work session on May 17 on freight-rail dependent uses. This year, discussions restarted during a work session in March on the implementation of a 2017 law that allows industry along short line railroads like Chelatchie Prairie.
The May session touched on a number of directives from the council when the discussion first resurfaced. Notably, councilors and county staff talked about the legality of extending “urban services” like sewer utilities into areas outside of cities and their urban growth areas.
To open the discussion to the public, councilor Gary Medvigy asked that attorney-client privilege be waived.
“We’ve talked about the fringes of this many, many times here in open meetings,” Medvigy said.
He noted there aren’t any lawsuits regarding the topic, which has not always been the case. After the initial process of implementing the law stalled in 2018, Portland Vancouver Junction Railroad, the operator of the county-owned Chelatchie Prairie, sued the county over a contract dispute. That has since been resolved, and last year, the county and railroad operator approved a new contract.
Although one legal hurdle has a resolution, actually getting the railroad law in place still features obstacles. A major issue is a lack of analysis on what the law allows since there has not been any analysis from the governor or state attorney general’s offices on implementation of the law, Christine Cook, the attorney for the county council, said.
“There is no guidance, no precedent anywhere, from anybody about freight rail dependent uses,” Cook said.
Cook noted there is legal precedent on urban services outside of urban areas.
“Urban services cannot be extended to rural or resource lands,” she said.
Clark County has been one of the parties in some of the cases where that precedent was set.
In one of those cases, the ruling denied the extension of urban utilities past the urban growth area of a city. Other case law shows the county had to protect resource land and industries, Cook said.
She said those precedents serve as a “backdrop” to the current discussion of the law. She said there could be an argument the freight rail dependent uses statute created an exception to some of the past precedent.
Cook mentioned a memo from the railroad operator with a sentiment that the extension of sewer utilities would not be allowed, something Cook agreed with.
“I think that is not permitted by any of the statutes as they now exist by the historic case law,” Cook said.
Another legal question focuses on what “adjacent” means in the law when describing where the freight rail dependent uses are allowed. After much discussion by various groups, that meaning remains unclear.
“I can confidently say that nobody knows,” Cook said.
Although adjacent doesn’t necessarily mean abutting the railroad, going out to 500 feet from the railroad might be a stretch, Cook said.
After receiving the legal analysis, Medvigy believes the law was “clearly” drafted as an exception to the state’s Growth Management Act, which governs the land uses in question.
“It is an exception to the normal restrictions outside of the urban growth boundary for purposes of developing, and using to its fullest extent, the railroad,” Medvigy said.
Medvigy said past councils didn’t pursue implementation of the law correctly. He said only focusing on the southern half of the railroad up to Battle Ground is an example.
“I think that this law has languished since the governor signed it because of a lack of political will,” Medvigy said.
Medvigy said months ago he suggested going to the Washington State Legislature to ask for clarity on what the law allows.
“In talking to individual legislators that were involved in this, they say this is not an issue,” Medvigy said.
Councilor Sue Marshall said she’s more interested in what could be achieved with the law, while avoiding legal challenges.
“If we’re headed to litigation, that’s even further delays in anything happening,” Marshall said.
She believes the law that was passed doesn’t achieve what proponents of implementation hope to see.
“If they want more, they need to go back to the Legislature to get clarity on that,” Marshall said.
Medvigy wanted the county prosecuting attorney’s office to specifically point out where the law is unclear. He said the past council should have sought the clarification from the start, rather than dealing with it nearly six years after the law was signed.
“Until we answer the basic question of ‘is this an exception for sewer outside the urban growth boundary,’ I think we’re always going to be in this no-man’s land,” Medvigy said.
He also agreed with restarting the public participation process, and extending the scope of the allowance to the terminus of the rail line in Chelatchie, north of Battle Ground.
Any decisions on implementation of the law are still a ways off. Work to clarify the language in the law, alongside updates on potential implementation options, will be presented at a later council meeting, Clark County Manager Kathleen Otto said.
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