Falk Recommends Disolving CARPC

Yup. I’m not kidding.

April 14, 2011
CARPC Budget & Personnel Commission Members: Jon Hochkammer, Mayor Dave Cieslewicz, Jerry Derr, Phil Van Kampen

Dear CARPC Budget & Personnel Commission Members:

I write this letter with great sadness and disappointment, but with no other option. Despite years of extraordinary effort by some CARPC commissioners and staff, CARPC has failed and continues to fail at many of the key responsibilities it was created to undertake. Furthermore, recent DNR decisions have made it clear that CARPC’s role is unnecessary. Accordingly, I respectfully suggest that we dissolve CARPC as soon as possible — certainly before County taxpayers have to pay another $750,000 or more next year.

As you know, I worked with many of you to create CARPC to enable us to proactively plan for the improvement of water quality throughout Dane County, the prudent, sustainable growth of our cities and villages, and the preservation of our rural towns and farmland. When the RPC dissolved in 2004, the County Board and I even took the extraordinary step of funding RPC staff, with County dollars, to maintain water quality planning and the institutional knowledge that would make the creation of a new RPC more likely and efficient. As a result of these steps and years of difficult negotiations, CARPC was formed in 2007. The County Board and I again stepped up and agreed to fund CARPC with County tax dollars — despite these tight times and despite the service it provides to other local units of government.

Since that time, however, it has become clear that CARPC has been unwilling and unable to meet the conservation goals under its very own charter. At the end of this letter, I make a recommendation for a better course for the future.

To best demonstrate the extent of CARPC’s deficiencies, I have listed below some of CARPC’s key failures:

• The approval at the end of 2010 of an Urban Service Area (USA) expansion for Deforest which authorizes for development today 500 acres beyond what Deforest will need in 25 years. This, despite the current existence of 1700 planned, unsold lots in the village.

• The failure of CARPC to provide for a fair means of resolving a clear conflict of interest when the President of the Village of Deforest voted on the Village of Deforest request.

• The failure of CARPC to abide by its own charter. No document better reflects the hard work that went into creating it or more clearly states its purpose. The charter was reviewed and approved by all the local governments that voted to create CARPC. The charter defined the Future Urban Development Area (FUDA) and specifically charged CARPC with methods, schedules, and priorities by which to pursue FUDA’s. FUDA’s are important because they represent a clear break with, and a major improvement over, the deceased RPC’s flawed planning. If you recall, the RPC planning involved obscurely created USA reserves, driven by formulaic conversions of estimated population growth, with no consideration of water quality. Under the RPC, USA’s were considered in a wholly ad hoc, developer-driven manner. FUDA’s were to have the best available water quality data, strong public participation, and communities’ comprehensive plans as their starting points. They were to end with recommendations, approved by CARPC as part of its water quality planning and USA functions, as to where the city or village should and should not grow over the next 25 years.

To date, CARPC has failed to complete even one single FUDA. CARPC was working on FUDA’s in Verona and Deforest. Nothing came of the Verona efforts and the unjustifiable decision regarding DeForest’s USA expansion has precluded the need for any FUDA there for the next 50 years. Worst yet, CARPC is now preparing to implement a perverse version of FUDA. FUDA’s would now become amendments to a city or village’s comprehensive planning with CARPC acting in a facilitating role. While this may sound reasonable, it actually eviscerates FUDA’s and does not provide any assurance that FUDA’s will protect water quality, discourage development in sensitive areas, or adequately address the conflicts between neighboring communities choosing to grow in the same area.

These conflicts are not theoretical. Attain Dane, a countywide, data-driven planning effort with lots of citizen participation, in 2004 produced a review of all 60 communities’ Smart Growth plans which showed that the next 20 years of urban peripheral growth would consume 64,000 acres of undeveloped land (like adding another Madison, Middleton, Verona and Sun Prairie). Also, many cities and villages were planning growth into the same unincorporated areas — for example, Madison, Sun Prairie, and Cottage Grove planned extensive annexation into the Town of Sun Prairie and often they planned to claim the same area. The recent census report that Dane County has the most population growth — 3 times more than any other county — over the last decade (about 60,000 people) in the state shows that growth remains a persistent issue.

The change in FUDA was not communicated to elected community leaders when we were asked to sign letters of support for the $2 million HUD grant to implement FUDA’s. I supported that grant with the understanding that the FUDA’s to be created resembled those described in the charter. I recognize now that this was not CARPC’s intention, and perhaps it never was. Knowing what I now know, I could not in good conscience offer that letter of support. The version of FUDA currently being pursued does not provide for any fair resolutions of Dane County communities’ often conflicting comprehensive plans. Such FUDA’s will increase, rather than temper, urban sprawl.

The current attitude of many CARPC Commissioners and staff was aptly expressed by the current CARPC chair when, at a meeting last fall of the Budget & Personnel Committee, he waved the charter in my face and declared: “This charter isn’t worth the paper it’s written on.” If that is the case, the County Board and I are taxing our citizens for an organization that readily admits it cannot meet its own goals and responsibilities. And it’s time to stop that.

• CARPC’s unwillingness to abide by its own charter is reflected in its Commissioners and staff. Too many Commissioners and staff have adopted the argument that CARPC can’t proceed with FUDA’s as planned because CARPC doesn’t have the required authority. Besides ignoring the charter, that position also ignores the fact that CARPC does not have final authority over USA’s either, yet CARPC proceeds with approving USA’s (over three dozen). There is no good reason why CARPC cannot be as rigorous with FUDA’s as with USA’s. CARPC is simply abdicating its responsibilities in the face of opposition.

There is also the issue of the tiresome obfuscation and hypocrisy endemic to the organization. When conservationists or I have made recommendations to CARPC or, on very rare occasions, opposed USA expansions, some Commissioners attack these comments as “political” or “trying to tear down” CARPC. They act as though CARPC’s only mission is to approve every USA request. But the greatest hypocrisy and incompetence return us to another potential violation of the charter. Invariably, when we focus on the lack of progress with FUDA, some Commissioners representing Madison or other cities and villages immediately blame the lack of progress on a lack of money. They then argue for circumventing or changing the charter-imposed levy limit. In other words, they propose higher County property taxes. Some have persisted in this course, even after CARPC has received a 3 year, $ 2 million grant to pursue FUDA’s. They complain about not having enough money to hire a permanent Executive Director and then reject my offer to have myself and County budget staff work with CARPC staff to see if resources could be reallocated for a permanent Executive Director and they refuse to offer any funds themselves to this cause. (Remember, the County pays the bills).

Recently, CARPC rejected another attempt to have it rededicate itself to its mission. The Budget & Personnel Committee voted 3-1 on a motion to reaffirm CARPC pursuing FUDA’s in accord with the charter and asking CARPC to produce a schedule that would lead to the approval of (only) three FUDA’s over the next two years. Jerry Derr, President of the Dane County Towns Association, was quite strong in reminding CARPC of its obligation to follow its charter and pursue FUDA’s; Mayor Cieslewicz joined Chairman Derr and myself in this vote. CARPC rejected that motion at its next meeting. Most of the CARPC Commissioners simply are not willing to do the job they were appointed to do.

CARPC’s overall direction has become stunningly wayward and maddeningly irresponsible. For too many Commissioners, CARPC’s goals are to increase County property taxes and to pursue USA’s that will harm water quality and increase urban sprawl.

As if CARPC’s failures are not bad enough, the DNR has completely undercut whatever authority and credibility CARPC had. It did so via two recent decisions.

• The first, contained in a letter dated February 1, 2011, rejects CARPC’s authority to set specific water quality standards and conditions. These conditions are the most important part of CARPC’s approval of USA’s because Commissioners have relied on them to guarantee that water quality will be preserved in face of often large, complex developments. The Bishop’s Bay USA, for example, would not have been approved over numerous, significant objections without the condition based on CARPC’s water quality standards, especially those related to stormwater runoff. These standards were developed after months of work and based on the best available science as it relates to runoff and infiltration.

The DNR’s rejection of the standards occur via the most ludicrous letter I have read in 35 years in the practice of environmental law for much of that time. It appears to say that these standards are important to protecting water quality and that CARPC can approve them, except that those approvals are “ineffective.” This is expressed with stunning obscurity and illogic in paragraph 7 of page 4. The letter then lauds CARPC’s effort while again repeating that its approvals are invalid. CARPC’s most important water quality conditions thus become advisory and absolutely unenforceable.

Then in March, the DNR then intensified its attack on water quality by overturning CARPC’s rejection of the Mazomanie USA. CARPC twice rejected this proposal. The second time, at the DNR’s direction, CARPC focused its findings on water quality issues and produced a detailed record to show that it had done so. With its rejection of all of CARPC’s work on Mazomanie, the DNR has destroyed CARPC’s credibility with regard to USA’s. Any developer facing a CARPC rejection of the USA will flee to the DNR immediately, expecting and in all probability, receiving approval. Why the DNR rejected CARPC’s hard work and careful decision-making in order to approve an ill conceived, pie-in-the-sky development proposal that, if ever constructed, will threaten Black Earth Creek is a disturbing mystery.

Again, the situation is incredibly discouraging. For whatever faults it has, CARPC worked hard and well to develop scientifically sound standards to address one of the most significant threats to Dane County waters and the biggest single contributor to flooding and high lake levels — stormwater runoff. While I disagree with some of its decisions, CARPC has reviewed about three dozen USA requests over the years and rejected only the two worst. Now, the DNR has reversed not only those decisions but effectively eliminated the basis for CARPC undertaking any more of that worthwhile work.

The bitter irony is that the DNR was one of the agencies that most encouraged local officials to create CARPC. In letters, other communications, and press releases, DNR officials argued for the need for CARPC, applauded its creation, and pledged its support. It has now, in effect, renounced that effort when, in commenting on CARPC’s charter as part of its decision to grant the Mazomanie USA, it states “there is no basis for CARPC to develop its own criteria” (Attachment 4, page 3). The DNR then follows that with hope that DNR and CARPC can work together so “that local communities would very rarely, if ever, need to appeal separately to DNR for sewer service area plan amendments (Attachment 4, page 3). Of course, this won’t happen because CARPC will never deny any USA again, no matter how ill conceived or damaging to water quality. The DNR has abdicated its environmental responsibilities in favor of a crabbed, myopic, pro-sprawl interpretation of its duty to protect the state’s waters.

CARPC is not exercising any effective local control and whatever ability it had to adjust environmental protection has vanished given the DNR’s recent decision overturning local control. Again, local taxpayers are now wasting $750,000 per year.

The Future
To reply, CARPC has several overriding functions, all of which can be assigned to other agencies. The work will be done well and taxpayers will save money.

Ordinance amendments can be adopted by the County to adopt CARPC standards and conditions as regulations. If approved by the Lakes & Watershed Commission (LWC) the County Board and County Executive, their adoption will occur through a rigorous and public process, with elected officials accountable for their votes. Those regulations can then be enforced legally throughout the County. The DNR has conceded this extremely important point; in fact, the DNR’s recent letter is the strongest possible argument for the LWC, County Board, and County Executive to take on this function.

The Lakes & Watershed Commission would also be an appropriate and representative body to review USA’s and oversee FUDA. The Commission has been created by the Legislature to protect all of Dane County’s waters. It has a superb track record of working through controversial issues with a variety of local governments and interest groups. Its recent work with the DNR to protect the Yahara Lakes has enhanced that already strong working relationship. If the DNR persists in its pro-sprawl agenda, the LWC backed by the County Board and County Executive is in a better position to fight that battle than CARPC.

The County’s Planning & Development Department can coordinate the sustainability-related aspects of the HUD grant while the Land & Water Conservation Department can conduct the USA-approval reviews needed by MMSD to actually extend sewers — and all of this at far less cost to County taxpayers.

CARPC may well have been a worthwhile effort. I devoted a lot of time and public funds to its creation and did so with the hopes that it could provide a constructive, pro-active approach to protecting water and developing our County. Regardless, it has failed and now serves as an expensive threat to our environment. Let’s stop the waste of taxpayer money and put CARPC’s responsibilities in the hands of the officials most responsible for protecting Dane County’s waters: the Lakes & Watershed Commission, the County Board and the next County Executive. With this step also comes much greater accountability. The County Board and County Executive are elected and report directly to our citizens on their stewardship of our shared resources.

Thank you.

Sincerely,

Kathleen M. Falk
Dane County Executive