Chuckanut Ridge in a nutshell

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Sun, Jan 25, 2009, 7:59 pm  //  Larry Horowitz

In recent weeks, the Chuckanut Ridge / Greenways 3 mêlée has been blown way out of proportion and has become nothing more than an irritating sideshow. Personally, I am much more interested in the real story than a freak sideshow. To this end, I present Chuckanut Ridge in a nutshell.

Background
Chuckanut Ridge (CR) is an 82-acre urban forest consisting of uplands, wetlands and steep slopes. Prior to 1980, CR was zoned single-family residential with one unit allowed per 20,000 square feet (sf), approximately 2.2 units per acre. Based on this zoning, CR could potentially accommodate a maximum of 178 single family homes before reductions for critical areas, stormwater facilities and rights of way. It is estimated that at least 25% (20 acres) of the parcel represents critical areas and required buffers. Of the remaining 62 acres, the City of Bellingham Land Supply Analysis estimates that 36% of a typical single family development would be needed for stormwater facilities and rights of way, leaving only 40 developable acres. Therefore, based on the pre-1980 zoning, CR could accommodate approximately 87 single family homes.

1980 Upzone
In 1980, City Council changed the zoning of CR from single-family to multi-family and changed the density from 1 unit per 20,000 sf to 1 unit per 3,000 sf (from 2.2 to 14.5 units per acre), a generous gift that has effectively increased the potential number of units by more than 800%. In theory, the current zoning allows the owner to build up to 739 units, 661 more than the 87 that could have built under the original zoning.

When questioned about the 1980 upzone, former mayor Mark Asmundson stated in an April 3, 1996 letter to the students of Wellspring Community School, “I disagree with the zoning presently in place, and I do not understand why in 1980 the City Council approved the kind of density that was allowed in this location.”

Prerequisite Consideration
In conjunction with the 1980 upzone, City Council added a requirement to either construct a collector road between Chuckanut Drive and Old Fairhaven Parkway or widen the Fairhaven Bridge. According to minutes of the 1978 Bellingham Planning Commission, Planning Director Gregory Waddell responded to a question from Planning Commission Chairman Mark Packer by stating that “nothing can go on” before the prerequisite consideration is met. In other words, until the collector road is built or the Fairhaven Bridge is widened, no development can occur.

Based on conversations with both city staff and citizens who were around to see the outcome of the 1980 comprehensive plan update, the upzone and transportation prerequisites were tied together. In other words, the transportation system expansion was needed to accommodate traffic from new development along Chuckanut Drive. In the minds of those who were around at the time, it was clear that the city awarded the upzone in exchange for the developer paying the cost of building the collector road or widening the bridge.

As a side note, during a recent South Neighborhood Association meeting on January 13, Mayor Pike commented that it will be difficult for the developer to meet either of the prerequisite considerations.

Wetlands
There are thirteen wetlands impacted by the proposed Fairhaven Highlands development on CR, six of which are mature forested, Category I wetlands, including a sizeable one located on adjacent property owned by the city. However, the developer’s wetland delineation fails to identify the six Category I wetlands as mature forested, and, therefore, fails to assign them Category I status. As a result, the wetland buffers in the developer’s application do not meet the city’s minimum standards. In the three years since the wetland application was submitted, the city has not required these errors be corrected.

Critical Areas Ordinance (CAO); Vesting; Public Safety, Health & Welfare
The Growth Management Act (GMA) mandated cities and counties to adopt critical areas ordinances by September 1991; however, as of November 2004 (13 years later), Bellingham had still not adopted its CAO. At that time, City Council adopted Resolution 2004-36 and committed itself to completing this requirement by July 1, 2005. To no one’s surprise, Council failed to meet this deadline and did not adopt its CAO until November 21, 2005, just three days after the Fairhaven Highlands wetland application was submitted.

The initial Fairhaven Highlands applications for planned development and subdivision (preliminary plat) were submitted on April 18, 2005 and indicated that certain wetlands and wetland buffers would be filled and/or developed, an action that requires a Wetland and Stream (W/S) Permit application. Even though the required wetland permit application was not submitted until seven months had passed (on November 18, 2005), this omission did not prevent former planning director Jorge Vega from “determining” that the obviously incomplete planned development and subdivision applications were complete within 7 days of being submitted.

On December 5, 2005, City of Bellingham planner Kathy Bell emailed fellow planner Marilyn Vogel and wrote, “After reading the Concurrent Review section of Title 21 [of the Bellingham Municipal Code], it seems that we should have made the planned application incomplete since the application proposed direct wetland impact and a W/S Permit was not submitted.” (Emphasis added)

Because the Fairhaven Highlands applications were deemed complete (albeit erroneously), they are considered vested under the development regulations in effect on the date they were submitted. HOWEVER, as indicated under the Exceptions section of the city’s vesting ordinance, “An application for a land use approval may be denied or approved with conditions under the authority of the City to protect and enhance the public safety, health and welfare.” [BMC 21.10.260(B)(2)].

The Purpose section of the city’s CAO states that one of its key goals is to:
“Protect members of the public and public resources and facilities from injury, loss of life, or property damage due to landslides and steep slope failures, erosion, seismic events, or flooding.” [BMC 16.55.010(D)(1)]

The CAO also states, “Critical areas ... may pose a threat to human safety or to public and private property.” [BMC 16.55.010(C)]

Further, in City of Seattle v. Hinckley, the Washington Supreme Court wrote, “There is no such thing as an inherent or vested right to imperil the health or impair the safety of the community. But, to be protected against such impairment or imperilment, is the universally recognized right of the community in all civilized governments; a protection which the government not only has a right to vouchsafe to the citizens, but which it is its duty to extend in the exercise of its police power.” (Emphasis added)

Because the developers believed they were vested, the Fairhaven Highlands application does not meet the safeguards that are unique to the Bellingham Critical Areas Ordinance. As a result, it is clear that this development imposes unreasonable risks to the public’s safety, health and welfare.

Questions:
1) If in fact the transportation prerequisite to develop Chuckanut Ridge cannot be met, should the zoning revert back to the pre-1980 upzone?

2) Given that the Chuckanut Ridge parcel contains numerous critical areas, including six Category I mature forested wetlands, steep sleeps (some in excess of 40%), and landslide and erosion hazard areas, is the multi-family, high density zoning reasonable? Is it consistent with the Land Use Policies of the Bellingham Comprehensive Plan?

3) In accordance with the city’s own vesting regulations and the WA Supreme Court’s finding in City of Seattle v. Hinckley, should the city require the Fairhaven Highlands development to meet the standards that are unique to the city’s Critical Areas Ordinance in order to protect public safety, health and welfare?

4) Given all the problems facing the development of this property, what is this land really worth?