Anatomy of a Development - Part IX BMC Rule of Three Thwarts Plans

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Thu, Oct 31, 2013, 11:19 am  //  Dick Conoboy

It appears the Bellingham Municipal Code regulations on the number of unrelated individuals who can rent a dwelling unit may produce a big dent in the income stream of University Ridge for Ambling University Development of Valdosta, Georgia. The hearing examiner’s decision (you can read the document here) states in part:

1. The proposed use for Purpose Built Student Housing may be conducted on the site provided the units conform to the requirements for multi-family residential dwelling units and contain no more than three bedrooms per unit. The use of the property for four Boarding and Rooming Houses with 576 beds in 164 units, most of which contain four bedrooms, is not permitted.
2. The number of dwelling units on the site may not exceed 176, or the number of units to which the property is vested, whichever is less; provided that the number of units is limited to 164 unless the Applicant obtains a Transportation Concurrency Certificate for the requisite additional trips and complies with all other requirements of the Bellingham Municipal Code arising out of an increase in the number of units.
3. Occupancy of each dwelling unit is limited to one family, as defined in the Bellingham Municipal Code, which, with exceptions for disabled individuals and children with familial status, allows no more than 3 unrelated individuals.  [See BMC 20.08.20 (F) (1)]
4. Use of the property for the proposed Purpose Built Student Housing shall be consistent with the materials and representations submitted by the Applicant in support of the proposal, including, but not limited to, the following:
a) Professional, on-site, 24-hour management,
b) Lease agreements that establish a no-tolerance policy for unacceptable behavior that could result in undue disturbance to other residents and neighboring properties,
c) Provision of a shuttle service for residents to and from the Park and Ride facility, WWU, downtown, and other locations, to reduce traffic to and from the site, and
d) Provision of parking spaces at a ratio of at least 0.75 parking spaces per resident/staff (or the number required in Paragraph No. 9 below, whichever is greater).

This means Ambling’s plans for four bedroom units will not be permitted. The company had designs to separately rent each of four bedrooms in an apartment unit for approximately $650 per bedroom, with each bedroom carrying its own lease. This would bring in a combined rent for each 4 bedroom unit of $2,600, a hefty price for a unit that size. Most single family homes in Bellingham rent for less than that and landlords regularly fly under the radar with respect to the “rule of three” so that renters can often share a home with 5, 6 or more friends at a monthly rate substantially below Ambling’s $2,600 (or $1,950 when limited to 3 bedrooms).  Further complicating Ambling’s plan is the recent modification of the development of multi-family rental apartment units just south of Fred Meyer on Lincoln St.  The first phase of this project calls for 175 units, consisting of studios, one bedroom and two bedrooms) that reportedly will be marketed to the student population.  [You can read about the development here]

There may be some controversy over the “rule of three” portion of the BMC, however, Bellingham’s city attorney has already produced a paper attesting to the legality of that code portion.  (This assessment can be read here). There may be philosophical objections to the rule but the constitutionality of this kind of density control by municipalities was decided in 1974 by the Supreme Court in Belle Terre vs Boraas. (Click here to read that decision.) The code could be changed by action by the Bellingham City Council, however, that will likely not be of present value to Ambling. Even if the council were to change the code, the hearing examiner has foreclosed on Ambling's proposed density as not being appropriate for the site as noted in paragraph 1 of Permitted Uses (above). Furthermore, the council may not have an easy task changing the code portion on family since the definition of family is applicable to other portions of the code and may prove difficult to modify. This is among the reasons the council did not pursue changing that code portion several years ago.

A critical areas permit for hazardous areas will be required, according to the hearing examiner who already gave such a permit to Ambling for the wetland/buffer area.  [“13. There is insufficient information to grant a critical areas permit for the geologically hazardous areas. A permit is required prior to land disturbance activities in this area and must be obtained.”]   A portion of the property bordering Puget St. has been declared a landslide hazards area.

The height variance to 58 feet was granted for two buildings proposed by the developer that are nearest Puget St. on the eastern edge of the property. This is, unfortunately, a gift to the developer that was not necessary to reasonably develop the site. The upper floors of those two buildings will provide endless annoyance to the Puget St. property owners as the balconies open toward Puget St. 

To the hearing examiner’s credit, she invoked the principle from the Growth Management Act of “neighborhood character.” Mere statements by the developer that the project would fit in splendidly with the surrounding neighborhood were seen, and rightly so, by the hearing examiner as so much twaddle. Trying to merge the concepts of college dormitory and single family homes is cognitive dissonance at its greatest and makes one run about screaming and tearing at one’s hair. 

Perhaps Kathy Bell meant well in her NOTICE OF DECISION statement when she stated “Affected property owners may request a change in valuation for property tax purposes through the Whatcom Assessor’s Office.” However, this declaration leaves one slumped against a dormitory wall in utter stupefaction and exhaustion. It is as if saving a few hundred dollars in taxes is any meaningful compensation for the loss of property values and the constant disturbance this project will produce, around the clock, in the lives of the adjacent property owners.  It is also a tacit acknowledgment of the tremendous negative effect of allowing this development to move forward.

The hearing examiner has given both sides until the 13th of November to file an appeal in Superior Court. Three weeks from the hearing examiner's decision date is a ridiculously short time period for the residents of Puget and Samish Neighborhoods to mount any sort of legal challenge. Lopsidedly, on the developer’s part there is money and a ready team of experts with attorneys whose job it is to ensure all legal challenges are met.  Some say both sides are burdened with the same constraints. This is like saying both the rich and the poor have the right to eat steak any night of the week.

Wendy Harris  //  Sat, Nov 02, 2013, 3:32 pm

Dick and the Puget Sound Neighborhood have done a great job of defending their neighborhood against inappropriate infill, and while they did not get the results they were seeking, they were able to scale back the size of this project. I commend everyone who worked so hard to make this happen.

City Planner Kathy Bell’s statement regarding change in valuation for property tax raises interesting issues.  Can any property owner in the city who is affected by infill do this? What would the net effect of this policy be?  What standards govern this determination? Should the city be pursuing infill knowing that it is reducing surrounding property values and assumedly lowering quality of life for existing residents?  And aren’t we getting uncomfortably close to Tea Party demands for compensation for any government action that results in loss of property value?  And most importantly, why isn’t the city planning better?  We are always told that infill is a win-win that prevents sprawl, increases property values and provides better infrastructure and services. 

Infill objections by neighbors are viewed as self-serving NIMBY complaints by people who are resistant to any change.  But the whole anti-NIMBY attitude has been perpetuated by developers.  Maybe the real question is why the city works on behalf of development interests, contrary to the interests of its residents.

Alex McLean  //  Sun, Nov 03, 2013, 2:18 pm

A month or so ago, when I entered into the debate/fight against this crapulous proposal, I suggested half-seriously that the City of Bellingham should offer to trade Lowell Park to the developer in trade for this land.

Lowell Park, as nearly everyone does not know, is a 3-acre slab of greenery mashed against a hillside very near to WWU. It has some lovely trees but is otherwise worthless as habitat or for connectivity of any major trail routes. Given that Sehome Hill Arboretum supplies 160 acres of recreation directly abutting the campus and nearby neighborhoods, my thought, however spurious and insane, was that this trade could allow for a truly zero-car student housing development while simultaneously sparing the Puget neighborhood and, meanwhile, providing the Ambling acreage for truly viable habitat (note the “critical area” requirement cited by the Hearing Examiner) as well as some potential for recreation and trail connectivity benefits that their neighborhood is sorely missing.

Well, it WAS an insane notion. Nevermind that the footprint of the proposed development is several acres larger than Lowell Park, my idea was fairly absurd.

But Wendy touches on the salient point: The City of Bellingham, in its efforts to install massive doses of density into our urban hardscape, is destined to repeat this offending pattern over and over again. I don’t live in the Puget neighborhood, and even advocated that this development is more appropriate to Happy Valley where, due to proximity to WWU, the neighborhood has already been ghetto-ized by students. Still, nobody wants to wake up from their single-family home to stare into a five-story wall of condos rammed outside their windows. The zoning exercise of Padden Trails, to say nothing of Chuckanut Ridge and its scandalous history, reveals that these sorts of “density bombs” are waiting to explode all over our city.

Most unfortunately, or perhaps most shamefully, the City appears to have chosen the only remaining large-scale green belts as the targets for this infill. They are, in fact, easy targets. But there are damn good reasons of topography and hydrology which have prevented these places from falling under the development razor for these past 100 years—these areas will be really hard to develop well, safely, or sustainably: developers will cry “foul!” on the exorbitant expense and, automatically, ask for even higher density to warrant their investment.

I think land swaps and short sales of surplus City-owned property are not an outlandish notion. Greenways does this—though not very often—when properties are acquired which exceed the intended goal of, for example, providing a simple trail connection.

Being hampered and enslaved by the property rights of private citizens and developers, the City has little recourse to design a functional city and its infill. The theories informing landscape urbanism, whereby habitat and preservation of drainage basins are viewed as critical to a healthy urban area, are forced aside to satisfy rights platted by clerks and notaries over 100 years ago.

Somehow, this has to change. More creativity, and a lot more thought, needs to go into Bellingham’s planning process. Hand-picked bobble-dolls on the Planning Commission, nodding “yes, yes, yes ...”, are not going to be the salve that cures this ailment. We need to get in line with the reality, and the science, of our landscapes and find the courage to say no to bad development while looking for the maybes of land swaps, strategic purchases, and, most daunting of all zombie apocalypses, confronting the zoning changes that can make these designs for cities workable. 

Dick Conoboy  //  Mon, Nov 04, 2013, 9:02 am

My thanks to Wendy and Alex for their thoughtful comments.  Related to their comments is this email that I received last week from Larry Horowitz.  The addressees of this email included the mayor, the city council and many of Bellingham’s most active (and activist) citizens.  Here are Larry’s thoughts on growth:

“On October 31st, the Herald published Ralph Schwartz’s article “Public comment sought on how fast Bellingham should grow.” + Link Perhaps a more relevant – and more honest – question would be, “How much are those who already live here willing to subsidize future growth?”

For too long, the question about growth in Bellingham and Whatcom County has been shrouded by – for lack of a better description – political dishonesty.  Who among our electeds has shared with us the ugly and inconvenient truth about growth? 

§  Are the costs of residential growth borne by those who profit from residential growth? 

§  Does growth pays its “fair share” of the infrastructure expansion costs needed to accommodate growth? 

§  Do existing residents and taxpayers subsidize growth?

§  Are the benefits of growth as elusive as the pot o’ gold at the end of the rainbow?

The fact remains that those of us who already live here continue to subsidize growth through reduced levels of service (LOS) and tax rates that exceed the rate of inflation.  Let there be no doubt: Population growth requires a subsidy from existing residents.

§  Does it make sense to ask “How fast should Bellingham grow in the future” when we cannot even solve the problems caused by growth in the past? 

§  How much more growth can our drinking water supply accommodate? 

§  When will those we’ve elected to represent us solve the problems experienced by Lake Whatcom?

No one is asking those we elect to perform miracles.  But is it too much to ask for honesty?  Is it too much to expect our elected officials to consider the interests of those who already live here as paramount to those who may choose to move here some day?

Ralph Schwartz has indicated that public comment is being sought on how fast Bellingham should grow. 

Would anyone else like to comment? Larry Horowitz”

Anatomy of a Development - Part IX BMC Rule of Three Thwarts Plans

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