Save the Woods?

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Wed, Jan 16, 2008, 3:33 pm  //  Tip Johnson

Or how to mitigate the illegitimacies of Fairhaven Highlands, AKA Chuckanut Ridge and the Hundred Acre Woods.

Sorry, I didn't have time to write something short!

Tonight (1/16/2008) at 6:30 in Municipal Court, citizens will have the opportunity to comment on the scope of an environmental study for the proposed Fairhaven Highlands project, also known as Chuckanut Ridge. This controversial project was first proposed in 1996 but was met with intense public opposition. The property later became the poster child for the Greenways levy, offering the opportunity to enhance and extend Fairhaven Park. Somehow, acquisition was never accomplished. Now the project is back, under the aegis of Horizon Bank and Greenbrier Construction. At issue is the fate of a mature forested wetland that has been identified as a keystone of the food chain in the Interurban corridor connecting the Sehome Hill Arboretum to the Chuckanut Mountains. The property is replete with important wetlands that provide an important source of food and water to various critters and supply important flows of fresh, clean water to both Padden and Chuckanut Creeks during dry periods.

Many tonight will speak to the myriad environmental points subsumed under the State Environmental Protection Act - Water, Air, Land, Habitat, Traffic, etc. And well they should, since the impacts of such intense development will be devastating. My interest has narrowed to focus on two issues.

The owners and other proponents lean on property rights, suggesting that if citizens don't want to see development, then they ought to buy it. Otherwise, the owners have a right to develop. I agree. However, I disagree that the value they imagine is appropriate. More on that later. First, let's make sure we can protect what is ours and effect adequate redress if we fail.

Just downstream from the project, a large, ancient beaver pond forms the headwaters of an unnamed tributary to Chuckanut Creek. This publicly owned wetland pond is teeming with tiny freshwater shrimp and who knows what else. Steelhead trout have been observed, having made their way up the hill from Arroyo Park. It is a haven for birds and area wildlife, a source of pure, fresh water, untainted with petroleum waste or septage.

We need to make sure there is a comprehensive biological inventory of this ecosystem. We know that end-of-pipe stormwater treatment facilities fail during peak storm events, flushing their contents and discharging a toxic jolt of accumulated waste. The City has no program for maintaining such facilities, instead relying on the property owners whose record for such diligence is dismal. If we are going to build a bunch of homes, with roofs, lawns and landscaping, parking lots and dumpster depots, will we rely on grassy swales, grease traps and detention basins to protect the pristine public wetland that is destined to receive the results? It won't work.

Therefore, the public needs a thorough assessment of the receiving area as a baseline for evaluating future damages. Wiping out the shrimp could initiate a cascading failure of the food chain, resulting in significant natural resource damages. The City and Developer would be liable for these damages for having permitted the development with inadequate mitigation. I believe that adequate mitigation is impossible and that irreparable damage is inevitable. I, for one, intend to file a natural resources damage claim when they occur. The success of such an effort depends upon a complete and current assessment. It is the City's duty to protect the public's interest. Please do so.

However, the best possible mitigation for the project would be to review the zoning error that created this environmental catastrophe. Without going into excruciating detail on the numerous things the City did, but should not have, or didn't do, but should have, that have kept this project alive, it is worth outlining several points of illegitimacy that this project relies upon:

- The only rationale of record for the rezone appears in a 1979 presentation by then City Planner Rick Fackler, who stated that the bridge over Padden Creek would require replacement within “the next few years” if Chuckanut was not connected to Old Fairhaven Parkway (then Valley Parkway) through the project AND that zoning density sufficient to support the improvement through the subject property was necessary.
o This was an erroneous assertion. The connector was not built and the bridge did not require replacement.
o Density to make the property economically feasible for development is not a legitimate basis for zoning.
o The prerequisite conditions of a connector or bridge widening is not being met by the proposal, yet the density remains.

- There was never a public hearing specific to the zoning change before either the Planning Commission or the City Council.

- The zoning change was never advertised and affected property owners were never notified.

- The zoning change furthered none and contravened most of the adopted policies, goals and objectives in the South Neighborhood Plan. Many citywide policies, goals and objectives were and are similarly disregarded.

- The zoning change was adopted as part of the “whole cloth” of the original Bellingham Comprehensive Plan, in an unusual council action, and was hence generally unknown to citizens until the project was originally proposed in 1996.

- The resulting public furor prompted an exhaustive document review by then city planner Chris Spens, whose conclusion, “It’s a mystery at best”, was published in the Final Draft EIS for the original proposal.
o The City then had a duty to review this as a possible zoning error, but never did.

- The zoning change was supposedly legitimized by subsequent re-adoptions of the Comprehensive Plan, but has never been specifically reviewed for consistency with neighborhood or City goals.

- The zoning was administratively re-adjusted by mayoral memorandum involving a conveyance/reconveyance scheme that parceled out a major wetland and qualified the owner for a substantial tax benefit.
o The public was afforded no opportunity for input and no comprehensive review was conducted.
o The Growth Management Hearings Board has determined that this methodology constitutes an illegal development regulation and has overturned similar "deals".

- The City delayed adoption of new critical areas provisions beyond multiple deadlines and under threat of state sanctions until the project could be supposedly “vested”. Whether or not vesting has been actually achieved is subject to debate.

- The City downgraded expectations of traffic performance in the project vicinity to Level of Service "F", or gridlock, to circumvent the state Growth management requirement for traffic infrastructure "concurrency", saving the proponents millions.

- The project received a miraculous four-day Determination of Completeness, even though prerequisite conditions were not met, regulatory buffers were slighted and buildings were placed on known landslide scarps, designated steep slopes and sensitive areas.
o The most previous City Determination of Completeness was for a 350 square foot addition to an existing South Hill home and required nearly six months.

- Since the zoning was mysteriously “adopted”, changes in perspective on planning and environmental protection principles have made the designation appear less, not more, appropriate.


Altogether, sustaining this project has involved way too many miracles or mysteries. It is either a tragic comedy of errors, incompetent or inept planning, or much worse - a corrupt collusion of favoritism toward special interests. Informants, commenting confidentially, have asserted that elected officials of the time had a financial interest in the property, held under a blind Delaware Corporation located in Lynden. Only a subpoena can discover the veracity of the assertion. It definitely deserves an investigation.

However the City can and should overturn the Determination of Completeness and review the zoning error. Were the City to review the zoning error and designate land uses consistent with the long-adopted South Neighborhood and City policies, citizens would then have a chance to acquire the property at a realistic price. Festooned with the absurd prospect of 739 residential units, project proponents can't see the forest for the glitter of imaginary gold. That's not community spirit.

The real tragedy is that development of the property will forever foreclose the opportunity to extend Fairhaven Park to meet the City's own standard for the population they have targeted for the area. It will eliminate the chance to connect Fairhaven Park to our substantial Interurban corridor investments, leveraging their value and creating a "Gateway to the Chuckanuts". This is a once in a lifetime chance at an opportunity of regional importance. Don't miss it.

See you there!

Related Links:

-> See the tiny freshwater shrimp video

Larry Horowitz  //  Wed, Jan 16, 2008, 7:13 pm

Tip,

I agree with your assessment of the Chuckanut Ridge fiasco, and I wanted to elaborate on two remedies we have now to deal with both the zoning and vesting issues.

Zoning:
In 1980, the city provided the former Chuckanut Ridge landowners with a density consideration that increased their potential housing yield by more than 600%.  In exchange for this density consideration, the developer was required to build a connector road (from Chuckanut Drive to Old Fairhaven Pkwy) or widen the Fairhaven/12th St Bridge over Padden Creek. 

The Horizon Bank/Edelstein submittal in 2005 ignores this requirement.  Unless they abide by the prerequisite conditions, the density consideration provided in exchange for these conditions should be removed.

Vesting:
The ?Vested Rights Doctrine? in Washington state (Noble Manor v Pierce County) establishes two requirements for a permit application to be vested:

1)  The application must be substantially complete; and

2)  The application must comply with existing zoning ordinances and building codes in effect at the time the application is submitted.

Although the ?Notice of Completeness? issued by the city claims that the application meets the first requirement, it is silent on the second.  It cannot be presumed that the Fairhaven Highlands application is vested.  In fact, this application violates at least two zoning ordinances in effect at the time:

1)  The prerequisite conditions in the South Neighborhood Table of Zoning Regulations for Area 4, discussed above; and

2)  The 100? wetland buffer requirements for the five Category 1, mature forested wetlands on the Chuckanut Ridge site.  (Note that the Fairhaven Highlands application calls for only 50? buffers for these wetlands.)

Failing to meet the standards established by the Vested Rights Doctrine, the application is not vested and must now comply with the 2005 Critical Areas Ordinance (CAO), which requires a minimum of 150? buffers for the Category 1, mature forested wetlands.

You would think that a community bank would have the desire to meet these requirement that we established more than two years ago.  Perhaps Horizon is not as community minded as they would like us to think.

Hopefully the city will understand these facts and act accordingly.  I am more hopeful that they will under Mayor Dan Pike?s leadership.


g.h. kirsch  //  Wed, Jan 16, 2008, 7:56 pm

I have not studied this issue much, but am glad that you all have finally struck on some good legal challenges that should be more compelling than the largely aesthetic and provincial ones that have gotten most of our attention.  Good luck.


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