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HomeMy WebLinkAboutord2026-032Whatcom County COUNTY COURTHOUSE 311 Grand Avenue, Ste #105 Bellingham, WA 98225-4038 (360)778-5010 Agenda Bill Master Report File Number: AB2026-403 File ID: AB2026-403 Version: 1 Status: Substitute Adopted File Created: 05/15/2026 Entered by: KSmith@co.whatcom.wa.us Department: Council Office File Type: Ordinance Requiring a Public Hearing Assigned to: Council Final Action: 06/23/2026 Agenda Date: 06/23/2026 Enactment #: ORD 2026-032 Related Files: Primary Contact Email: ksmithcco.whatcom.wa.us TITLE FOR AGENDA ITEM: Ordinance imposing an interim moratorium on the acceptance or processing of applications and permits for the establishment of new or expansion of existing civil detention facilities SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: Ordinance imposing an interim moratorium on the acceptance or processing of applications and permits for the establishment of new or expansion of existing civil detention facilities HISTORY OF LEGISLATIVE FILE Date: Acting Body: 06/09/2026 Council Aye: 5 Nay: 2 06/23/2026 Council Aye: 5 Nay: 2 Action: Sent To: SUBSTITUTE INTRODUCED Council FOR PUBLIC HEARING Boyle, Buchanan, Galloway, Rienstra, and Scanlon Elenbaas, and Stremler SUBSTITUTE ADOPTED Boyle, Buchanan, Galloway, Rienstra, and Scanlon Elenbaas, and Stremler Attachments: Proposed Ordinance, Substitute Ordinance, Notice of Hearing after 6.9.2026 Whatcom County Page 1 Printed on 6/24/2026 Agenda Bill Master Report Continued (AB2026-403) Whatcom County Page 2 Printed on 6/24/2026 PROPOSED BY: RIENSTRA, SCANLON, GALLOWAY INTRODUCED: JUNE 9, 2026 ORDINANCE NO.2026-032 IMPOSING AN INTERIM MORATORIUM ON THE ACCEPTANCE OR PROCESSING OF APPLICATIONS AND PERMITS FOR THE ESTABLISHMENT OF NEW OR EXPANSION OF EXISTING CIVIL DETENTION FACILITIES WHEREAS, Whatcom County has broad authority under the Washington State Constitution's police powers, set forth in Article XI Section 11, to protect the public health, safety, and welfare of its residents; and WHEREAS, these constitutional provisions, along with Whatcom County's home rule authority granted by Article XI, Section 4 of the State Constitution and the Washington State Growth Management Act under Revised Code of Washington (RCW) 36.70A, authorize Whatcom County to adopt land use controls, inclusive of interim measures, to provide for the regulation of land uses within the county and to provide that such uses be consistent with applicable law; and WHEREAS, the Whatcom County Council previously adopted and amended Whatcom County Code (WCC) Title 20, Zoning, which regulates land use within unincorporated areas of Whatcom County; and WHEREAS, while counties planning under the Growth Management Act are required to include a process for identifying the siting of essential public facilities pursuant to RCW 36.70A.200, current regulations do not contemplate the expansion of existing or the siting or permitting of new civil detention facilities; and WHEREAS, Whatcom County is currently updating the Whatcom County Comprehensive Plan as required by RCW 36.70A, a lengthy, multi -year process which, while nearing completion, does not address land use regulations or public health and safety issues that have arisen related to administrative or civil detention facilities, and the county lacks sufficient time to sufficiently and timely address these issues in the comprehensive plan update; and WHEREAS, RCW 36.70A.390 and RCW 36.70.795 allow for the adoption of an interim land use moratorium for up to one year as long as a public hearing is held within sixty (60) days of adoption, the Council adopts findings of fact setting forth the basis for the interim measure, and a work plan is developed to study land use regulations appropriate to address civil detention facilities; and WHEREAS, in February 2025 the United States Immigrations and Customs Enforcement (ICE) agency began a significant expansion of "at -large" arrests in American communities, including conducting worksite raids and arrests at immigration check -ins and courthouses, often detaining individuals with no criminal convictions or those participating legally in the asylum process; and WHEREAS, it is reported that many such detainees have been held in facilities managed by private, for -profit corporations that contract with the government without access to adequate medical care clean drinking water, or sufficient food, including facilities located in Washington; and WHEREAS, there are more than 220 civil detention sites around the country, with a total detainee population of 68,000 as of February 2026, up from 40,000 a year earlier; and WHEREAS, in July 2025 Congress allocated $ 5 billion in funding for immigrant detention facilities over four years, more than ten times the agency's previous budget; and WHEREAS, in recent months land and warehouses across the country have been purchased to convert into large-scale detention centers under the federal government's Detention Reengineering Initiative; and WHEREAS, federal agencies or contracted companies have reportedly regularly failed to communicate with local officials about planned facilities in their jurisdictions and have prohibited government officials from accessing existing facilities; and WHEREAS, officials at ICE detention facilities have denied or delayed detainees' constitutional rights to due process, a violation of basic civil and human rights, and in so doing have harmed community members and entire communities; and WHEREAS, a civil detention and processing facility currently sited in Ferndale, Whatcom County, has been the subject of complaints regarding compliance with state and local health and welfare requirements, illustrating the potential community impacts associated with the siting of new or expansion of existing civil or administrative detention facilities; and WHEREAS, the Council finds that based on the information reported and available, an interim land use moratorium imposed by this ordinance pursuant to RCW 36.70A.390 is necessary for the protection of public health and safety of Whatcom County residents and finds it is in the public's interest to ensure land use impacts are considered comprehensively for such administrative or civil detention facilities; and WHEREAS, the above actions reported in federal immigration facilities in Whatcom County and in other jurisdictions highlight a need for a comprehensive review of how administrative or civil detention facilities are defined locally, sited, and regulated under county land use code provisions and planning policies; and WHEREAS, Whatcom County Code does not define "detention facility," it defines "correctional facilities" at WCC 20.97.030 as "primarily designed, staffed and used for housing juvenile or adult persons for the purposes of pre-trial custody, punishment, correcting and/or rehabilitation following conviction of a criminal offense;" and N WHEREAS, state law defines "detention facility," in part, at RCW 70.395.020(3) as facilities in which persons are incarcerated or otherwise involuntary confined prior to trial or sentencing, or to fulfil the terms of a sentence imposed by a court, or for other judicial or administrative processes or proceedings; and WHEREAS, for purposes of this ordinance, administrative or civil detention facility includes private or public facilities used to detain or confine persons involuntarily for administrative, civil, or judicial processes or related processing under local, state, or federal law; and WHEREAS, for purposes of this ordinance, administrative or civil detention facility excludes correctional facilities pursuant to WCC 20.97.030, facilities used for detentions under the Washington State Involuntary Treatment Act, for behavioral health and crisis services and the list of uses under RCW 70.395.030(3); and WHEREAS, impacts from civil or administrative detention facilities are not contemplated by Whatcom County's development regulations, and an evaluation of potential impacts as well as mitigation measures for any identified impacts should be clearly addressed in the county's development regulations before the filing of any application or permit for a new or expanded civil detention facility is considered; and WHEREAS, the presence of existing detention infrastructure in western Washington and the fact that other local governments within the state have recently enacted moratoriums on new or expanded detention facilities may compel ICE, private contractors, or other related contractors to look to Whatcom County to site new facilities or expand existing facilities; and WHEREAS, while Whatcom County land use regulations do not explicitly allow for civil or administrative detention facilities, current land use regulations would not preclude an entity from seeking permission or pathways to establish or expand an existing facility for such use under the Whatcom County code; and WHEREAS, the Council deems a moratorium necessary because the acceptance or approval of applications for new or expanded civil or administrative detention facilities, in the absence of clear zoning and development standards consistent with the Whatcom County Comprehensive Plan, may result in siting and permitting decisions that are harmful to public health, safety, and welfare and may not sufficiently mitigate against community and environmental concerns; and WHEREAS, the Council finds that an interim moratorium imposed by this ordinance is necessary for the protection of public health and safety; and WHEREAS, new or expanded civil or administrative detention facilities would likely have significant impacts on water, sewage and wastewater, transportation and parking, public safety, and public health, and would draw significant public interest which would likely require a long-term security plan and a short-term construction staging plan; and 3 WHEREAS, the Department of Planning and Development Services provided a threshold State Environmental Policy Act (SEPA) determination of nonsignificance (SEPA2026-00049) on June 1, 2026 for this proposed non -project action (see attached Exhibit A incorporated by reference herein); and WHEREAS, pursuant to WAC 197-11-340(2)(a) as adopted pursuant to WCC 16.08,065, the Council shall not authorize this ordinance less than fourteen days after the SEPA determination if the designation of nonsignificance related to this proposed ordinance is considered a growth management action; and WHEREAS, Whatcom County requires time to analyze and determine how best to update its land -use regulations to address the issues related to any expansion of existing or permitting of new civil detention facilities in Whatcom County, including evaluation of appropriate siting, cumulative impacts, and community burden, and to identify and consider mitigation measures most appropriate to address impacts; and WHEREAS, the Council does not intend for this ordinance to impact the actions of or diminish support for the Whatcom County Sheriff's Department or the local police departments of Whatcom County's cities, which lawfully abide by the Keep Washington Working Act, or the county's ongoing efforts to reshape its justice system through the design and construction of a new county jail, a new behavioral care center, and the expansion of services for behavioral health and substance use disorder treatment; and WHEREAS, the Council recognizes the limits to its authority over actions imposed by federal statutes and the United States Constitution and finds that this temporary action is within its constitutional police powers and land use authority as outlined in state law and the Whatcom County Charter as necessary to provide time to evaluate and implement appropriate land use regulations consistent with the county's comprehensive plan in a manner that protects the health and well-being of residents. NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that an interim development moratorium is hereby established and imposed pursuant to the county's constitutional authority and RCW 36.70A.390, prohibiting the filing, acceptance, processing, or approval of any permit or application to establish, site, or expand civil or administrative detention facilities in all zoning designations within unincorporated Whatcom County, regardless of whether the use is permanent, temporary, primary, or accessory; and that: NOW, THEREFORE, BE IT FINALLY ORDAINED by the Whatcom County Council SECTION I. Purpose. This interim land use moratorium will allow the county sufficient time to comprehensively review and analyze the land use policy and regulations appropriate for siting and regulating civil detention facilities in addition to determining cumulative impacts of such facilities in order to identify necessary mitigation regulations that should be considered and implemented prior to 4 consideration of requests to site, expand, or establish new or existing civil or administrative detention facilities. SECTION 2. Exceptions. This ordinance shall not apply to the existing Whatcom County Jail, the proposed new Whatcom County jail, or any existing facilities or planned behavioral health care centers or crisis centers or facilities used for the detention under the Washington Involuntary Treatment Act, nor does it apply to any project already vested. SECTION 3. Effective Date. This interim moratorium shall take effect and be in force and effect for one (1) year from the effective date of this ordinance and shall automatically expire after a period of one (1) year, unless extended as provided for by statute or until the Council adopts amendments to Title 20 of the Whatcom County Code addressing this subject matter, whichever date occurs first. Any land use or permit application that is accepted during this moratorium period as a result of error or by use of vague or deceptive descriptions is null and void and will be without legal force or effect. SECTION 4. Findings of Fact. The Whatcom County Council adopts the above WHEREAS recitals as findings of fact incorporated by reference herein as the basis for passing this interim land use moratorium, as required by RCW 36.70A.390 and RCW 36.70.795. SECTION S. Public Hearing Required. Pursuant to RCW 36.70A.390, the Whatcom County Council shall hold a public hearing within sixty (60) days of the passage of this interim land use moratorium ordinance. SECTION 6. Work Plan. During the moratorium, the County Executive will seek to develop a work plan to evaluate the appropriate land use regulation, mitigation, and zoning considerations for civil detention facilities, including impacts to public health, welfare, and safety, and upon completion of the evaluation and any proposals, will provide this information to the Council to consider what, if any, new land use regulation and zoning ordinances are appropriate and consistent with the county's comprehensive plan and applicable state laws for establishing new or expanding existing civil or administrative detention facilities. Ten months after this interim moratorium ordinance is passed, the County Executive shall update the Council on the progress or findings of this work plan. SECTION 7. State Environmental Policy Act (SEPA) Requirement. This interim moratorium ordinance is not exempt from a threshold determination of State Environmental Policy Act (SEPA) requirements under RCW 43.21C, Washington Administrative Code (WAC) 197-11, and WCC 16.08. The Whatcom County Planning and Services Department issued a threshold determination of nonsignificance on June 1, 2026. (See SEPA2026-00049 attached Exhibit A and incorporated into this ordinance by reference). GW Additional SEPA review shall be completed as legally required following the development of appropriate land use regulations once analysis and proposals for necessary land use code changes for civil or administrative detention facilities are complete. SECTION S. Severability. If any section, sentence, clause, or phrase of this moratorium ordinance is held unconstitutional or unlawful by a court of competent jurisdiction or is preempted by state or federal law or regulation, the remainder of the ordinance or application of the provision to any persons or circumstance shall not be affected. Moreover, if any provisions of this ordinance are found to be inconsistent with other provisions of the Whatcom County Code, this ordinance shall control. ADOPTED this 23rd day of June ATTEST: ��� C o. Cathy 'Halk , Clerk -,of t e-166uncpl S`fA, E OFw APPROVE CS SAS Kimberlv Thulin�`bv.email' (6't "6 ks) ": ii " Civil Deputy Prosecutor ' , 2026 WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON -�aame-�7 Kaylee alloway, Council Chair WHATCOM COUNTY EXECUTIVE WHATCOM COUNTY, SHINGTON a Satpal S Idhu, County Executive 1K ) Approved Date Signed ( ) Denied 9