BAR Holdings and the UGA Swap Law: How to buy cheap rural land, use political ties to rezone it urban, and make a killing

This is the first of a series of articles that looks into political influence in land use permitting. Specifically, we investigate how business interests in Thurston County exploit their close ties with planning department staff to get around environmental regulations.

We start with the recent attempt by Rob Rice, Thurston County’s largest homebuilder, and his business partner, Mike Brewer, to build a mini-city in rural Thurston County. They tried to get the county to adopt their version of a countywide planning policy that would have allowed them to get around a new law. The new law is meant to protect groundwater, greenbelts and open space inside urban growth areas (UGAs). But it hampered their planned mini-city. You can read about the county’s actions in response to their efforts in the January 2025 issue of Works in Progress.

This article focuses on those developers’ political maneuverings behind the scenes.

In 2018, Rice and Brewer paid $400,000 to buy 33 forested acres just outside Tumwater’s UGA boundary along 93rd Avenue at Old Highway 99. The property was so cheap because it’s outside the UGA. Only 6 houses at most can be built on it under the current zoning. The property has many noteworthy features. It is a wildlife corridor near 770 acres of permanently preserved land, it sits in a critical aquifer recharge area-extreme (“CARA I”) that is critical to instream flows of the nearby Deschutes River, and it contains one of the last unpaved remnants of the Cowlitz Trail/Oregon Trail.

The fact that the parcel sits outside the UGA presented a challenge for Rice and Brewer. They didn’t buy it to build a mere six houses. But Brewer’s wife is a lobbyist for the building industry. In this respect, the developers had influence.

In November 2021, the developers submitted their application for the 2022 docket, asking Thurston County to approve their request to have Tumwater’s UGA amended and expanded. A few months later, the legislature passed the first UGA swap law. This law said you could take out land from one part of the UGA and put in land in another part of the UGA. The law said you could do this only during the once-a-decade comprehensive plan “update” years. That meant developers would have to get their proposal approved during 2025, since 2025 is when Thurston County is finalizing its comprehensive plan update.

The developers succeeded in getting their proposal put on the 2022 docket. But the county commissioners put it low on the priority list. It sat there, while Brewer and Rice worked on the messaging behind the scenes to make it more appealing to commissioners. Over time, the developers promised more and more things. Brewer at first told people there would be “affordable housing.” Eventually, he started calling it “attainable housing.” The plan evolved to include over 200 apartment units, a grocery store, a YMCA, a storage facility, medical offices, and “acres of open areas, trails, and park space.”

The design concept shows anything but acres of trails and park space and instead indicates that most of the 33 acres would be paved.

UGA Swap Policy

Any swap needed a swap policy to be in place first. In 2023, the county and its cities began discussions aimed at creating a policy to carry out the 2022 swap law. The discussions were held during UGM Subcommittee meetings. UGM stands for Urban Growth Management. The UGM Subcommittee members consist of one representative from each jurisdiction (a county commissioner, a council member from each city, a representative from each local tribe, and representatives from a few other entities).

It was the UGM Subcommittee’s job to create swap policies and propose them to Thurston County to adopt. Unfortunately for the developers, at the December 2023 meeting of the UGM subcommittee, the members decided to put off developing a swap policy until 2025. This is because there were still too many unresolved questions about what the 2022 law meant.

After that, developers realized that they would never be able to get their swap approved in 2025 unless they could get the UGM Subcommittee members to change their decision.

And so, without the public’s knowledge, developers set about to do just that. They had two handy tools of influence at their disposal: the Thurston Economic Development Council (EDC) and the Thurston Chamber of Commerce.

Enter the EDC

The Economic Development Council is a private entity that claims its mission is to “create a dynamic and sustainable economy that supports the values of the people who live and work in Thurston County.” But in the case of BAR Holdings, local values and a sustainable economy are the last things on the EDC’s mind, it seems. Instead, its focus has been to promote development at all costs.

BAR Holdings’ developer Rob Rice was previously on the EDC’s board. Here is a photo from the EDC’s website with Rice standing in the middle of the then-Board of Directors. Mike Brewer, the other developer of BAR Holdings, has just joined the EDC’s board. BAR Holdings’ attorney Heather Burgess is on the board. David Schaffert, the executive director of the Thurston Chamber of Commerce, is on the board, too.

UGM Subcommittee members Joe DePinto (Yelm’s mayor) and Malcom Miller (Lacey’s deputy mayor) are also on the EDC’s board. And so is Marc Daily, who is the executive director of the Thurston Regional Planning Council, which provides the staff for the UGM Subcommittee.

County Commissioner Wayne Fournier is not on the UGM Subcommittee, but he is on the EDC’s board. He used to be the mayor of Tenino, and his former colleague, Tenino Councilmember John O’Callahan, is the current chair of the UGM Subcommittee.

As mentioned, the developers needed to get the UGM subcommittee to change its mind and not wait until 2025 to discuss a swap policy. But this became all that more difficult in 2024 because the legislature added more complexity by passing another UGA swap law. This one was better than the 2022 in terms of environmental protections. It said that a swap could not result in a net increase in development capacity inside the UGA or a net increase in critical aquifer recharge areas inside the UGA.

This presented a problem for BAR Holdings. Unlike the 2022 UGA swap law, the 2024 UGA swap law says that a swap cannot happen if it would result in an increase in development capacity. The county’s hydrology report  found that the BAR Holdings swap would result in an increase in development capacity. In other words, the BAR Holdings swap would violate the 2024 swap law.

​For BAR Holdings to have any chance at getting approved, developers knew that they absolutely had to try to avoid having to comply with the 2024 swap law.

To this end, developers created a false narrative that the 2024 swap law did not apply during the once-in-a-decade comprehensive plan update years (i.e., 2024-2025 in Thurston County). They claimed that only the 2022 swap law applied to swaps in the “update” years. For more information on this sleight of hand, click here.

August 19^th UGM Subcommittee Meeting

With this false narrative in hand, BAR Holdings sought to have the UGM Subcommittee change its mind on holding off creating a draft swap policy until 2025. The fact that staff for the UGM Subcommittee knew Rob Rice because they were both on the board of the EDC probably enabled developers to get this ball rolling.

Staff for the UGM Subcommittee sent out a notice on August 1^st saying the UGM Subcommittee would meet on August 19^th to re-open discussion of the UGA swap policy. The email informed subcommittee members of the passage of the 2024 swap law and said “the Planning Directors do not have a recommendation on” the new law.

Lacey Deputy Mayor Malcom Miller, a broker, is on the UGM Subcommittee and was then the president-elect of the board of the EDC. He forwarded the August 1^st email to one of his own staff people and said, “let’s talk about this.” The author’s public records request did not reveal any written discussions by Miller of the 2024 swap law. That indicates that he had his discussion verbally.

Then on August 5^th, BAR Holdings’ consultant David Toyer emailed all the members of the UGM subcommittee plus, very strategically, all the members of the Board of County Commissioners. He attached a draft UGA swap policy (see page 2 here). The draft policy misconstrued the swap law such that BAR Holdings would be able to evade the requirement that said no swap could create an increase in development capacity of the UGA. The Chamber of Commerce then sent letters to subcommittee members advocating for adoption of the identical policy language.

Meanwhile, a UGM Subcommittee staff memo led citizen activists to think that the August 19^th meeting would not result in any action being taken. The existence of the proposed language from BAR Holdings was not revealed to any citizen activist or other members of the public. Thurston County planning staff had received BAR Holdings’ proposed policy language but had nevertheless not informed citizen activists of it and instead told them that the August 19^th meeting would simply be a discussion and no action would be taken. (This likely was a legitimate belief by staff, as staff had recommended to the subcommittee that no action be taken).

Unbeknownst to citizen activists (and probably to planning staff), leading up to the August 19^th meeting, staffers of some UGM Subcommittee members had been discussing the proposed policy language by phone, and the Chamber of Commerce’s CEO David Schaffert had been discussing it by phone with some UGM Subcommittee members. As a result, most of the subcommittee members had secretly already come to an agreement amongst themselves before the August 19^th meeting.

That agreement was to push through BAR Holdings’ proposed policy language. It had not even been an agenda item at the meeting until members voted to amend the agenda mid-meeting without warning and then approved the language 5 to 2. The two dissenters were Councilwoman Madrone from Olympia and Councilwoman Swarthout from Tumwater. They submitted a minority opinion because of process concerns.

It appears nobody (except perhaps Madrone and Swarthout) read any of the public comments. Several community members concerned about good governance had submitted comments in advance of the August 19 meeting. They had asked the subcommittee to wait to work on UGA swap policies until the jurisdictions were done with their time-intensive comprehensive plan update process. This was because planning staff needed time to research the new swap law and come up with good policy language that fits the values of the county as a whole. A number of those community members also spoke at the meeting and said the same thing.

But after the August 19^th meeting ended, and it was clear that it was a coup by BAR Holdings, one community member asked and was told by a key UGM Subcommittee member that he had not read the written comments that she had submitted the week before. Likewise, he had not heard any of the verbal public comments because he had arrived late due to a prior commitment.

Here’s the recording of the August 19^th meeting: UGM Subcommittee Meeting – Zoom

• 14:28 – 33:42  Public comment (all speakers discuss UGA swaps)
• 41:10 – 46:36  Subcommittee members discuss whether rules of order allow forcing a vote on UGA swap policy issue
• 50:54  Discussion of UGA swap policy begins.
• 1:32:44 Councilwoman Madrone states that she will work with Councilwoman Swarthout to provide a minority opinion, as she has process concerns.

Thurston County staff bolster a false narrative

It appears that the developers had more friends inside county government. On December 26, Director of Community Planning and Development Ashley Arai signed off on a Determination of Nonsignificance for the developer’s proposed amendments to the County-Wide Planning Policies. The SEPA checklist failed to answer dozens of questions regarding environmental impacts that this change would likely cause. Staff wrote that there was no need to do an in-depth environmental review because the new UGA swap policy was not a shovel-ready project. It was merely on paper. Yet, staff had available to them plenty of scientific data that they could have reviewed and included if they had decided to perform a true environmental assessment. Further, a recent decision by the Washington Supreme Court in King County v. Friends of Sammamish Valley states that a DNS is unacceptable if significant environmental impacts are “likely to occur” as a result of the non-project decision.

At a public hearing on January 21^st, opponents of the draft UGA swap policy rallied more than 50 people to speak (and another 60+ people to write in). Opponents then filed an appeal of the DNS on January 30^th challenging the faulty SEPA review.

At the public hearing on the 21^st, people were concerned that the proposed policy language would violate existing law that prohibits increased development capacity and puts increased development pressure on rural lands, that it would have negative impacts on the Deschutes River and the quality and quantity of groundwater, that it would pave over a wildlife corridor, run counter to the County’s climate goals and set the County up for a legal battle. Predictably, only the developer, the Economic Development Council, the Chamber of Commerce, and a few others testified in favor.

Yet, at the BoCC work session on February 4th after the public hearing, Assistant County manager Josh Cummings and Director of Community Planning Ashley Arai appeared to mislead the Commissioners again by claiming that the policy language was non-binding and did not require an Environmental Impact Statement (EIS). This was false information, as shown in the appeal .

But it appears that opponents and an engaged public have succeeded in stopping the flawed UGA swap policy. During the February 4^th work session, commissioners decided to send the flawed swap policy back to the UGM Subcommittee. (There it will sit while the Department of Commerce finishes its rule-making on the UGA swap law). Soon after this, the county rescinded the DNS for the policy and is in the process of refunding the appeal fee to the appellants. We’ll keep you posted.

Ronda Larson Kramer is a local attorney and small forest landowner with a Masters in Urban Planning.