Neiner, Neiner - The private benefits of avoiding public dialog

By Tip JohnsonOn Apr 13, 2008

The dialog over the proposed Fairhaven Highlands development has deteriorated into a childish “neiner-neiner” squabble. Opponents continuously propose a host of rational objections while a few proponents call them names. Meanwhile, for more than a decade regulators have completely ignored the most basic precepts of planning. A letter in today’s Herald by Ray Ballweg makes a couple solid complaints about the paper’s editorial position on the subject. The blog responses of his critics are not so eloquent. Why is there no venue for discussion of these differences? How can government go for years without addressing a single substantive point of public concern?

Most citizens would agree that zoning should not be arbitrarily imposed, that it ought to take into account the policies, goals and objectives established through open public process for any area.

Most would agree that overarching public purposes should first be accommodated before public entitlements like zoning foreclose important opportunities.

Most would agree that important natural features should be protected when zoning is established.

None of this occurred with the zoning for Fairhaven Highlands, aka Chuckanut Ridge and the Hundred Acre Woods. Not one South Neighborhood policy, goal or objective is furthered by the zoning this area received. Many were contravened. The policy framework for the neighborhood was never considered in establishing the zoning. That is a fundamental requirement of zoning.

There is no record of any public discussion of the rezone that designated such unprecedented density to the Fairhaven Highlands wetland area. No notice of the specific changes were ever published or mailed to affected property owners. No hearing on the change was ever held before either the Planning Commission or the City Council. That is a fundamental abbrogation of government’s obligation to public process.

The only public record of this rezone is a staff suggestion, in 1979, that the bridge over Padden Creek would need immanent replacement if a road were not constructed through the property to connect Chucknut Drive to 24th Street. We can only guess, but apparently the density was granted to make development of the property with a road feasible. That is not a legitimate basis for zoning. Furthermore, the assertion was erroneous. The bridge has not been replaced and the proposed development contemplates neither the roadway extension or improvements to the bridge.

Since the zoning was installed, we have come to learn that we must do a much better job of protecting watersheds. Citizens will now be required to pony up untold billions an an attempt to reverse the cumulative impacts from such mistakes upon Puget Sound. Meanwhile, important publicly owned wetlands immediately downstream of the project are destined to become the development’s storm sewer. Tiny, sensitive freshwater shrimp teeming in these waters will likely be destroyed. Why would government hew to an obviously bad decision and continue the mistakes of the past?

Since the zoning was installed, we have made substantial investements in public land along the Interurban corridor, and designated large population increases for the service area of Fairhaven Park. The Fairhaven Highlands property is the only property that is capable of expanding Fairhaven Park to the City’s own standard for the targeted population and the only property that can leverage the value of our Interurban investments into a regionally significant “Gateway to the Chuckanuts”. Why would government avoid reviewing a blatant zoning error and forego the chance to seize these opportunities?

Instead of dialog on these important public issues, we have seen nothing but further accommodation of the mistake. The zoning was readopted as part of the Comprehensive Plan’s whole cloth, instead of specifically reviewed. The city built sidewalk improvements at its own expense, spanning the breadth of Fairhaven Park, right to the project’s front door. A significantly defective application was determined “substantially complete” in a record three business days while a 350 square foot addition to a South Hill home had to wait for six months. A traffic infrastructure concurrency ordinance, required by the Growth management Act, was adopted that exempted the already overburdened, relevant stretch of Chuckanut Drive from improvement. An Environmental Impact Statement was commissioned by the developer’s consultant of choice and its scoping artifically limited to existing, out-of-date, developer-sponsored studies. Now the City is adopting Essential Public Facilities provisions that will allow roads to be built through wetlands and other sensitive areas.

Something has gone horribly wrong when the rational concerns of hoards of citizens fall upon deaf government ears and the many things that should have been done go undone while many things that shouldn’t be done get priority. That is a fundamental failure of government. Are cities merely collections of buildings and government of, by and for developers? Or are cities collections of people and government the means for them to determine the character of their community? Would that it were the latter!

It is past time that the City officially reviewed the zoning for Fairhaven Highlands and established land use consistent with existing neighborhood policies, compatible with the natural features of the property, and which meets citywide needs without burdening the general taxbase with future problems. The questionable zoning that exists today amounts to no more than an irrationally based public gift that adds incredible, arbitrary value to the land. That is not zoning. It is a zoning error. This arbitrary value now stands between the community and any reasonable alternatives. Mr. Ballweg is correct. The City’s continued avoidance of their responsibility to assure that zoning is rational amounts to nothing less than a massive public subsidy for this developer - a public gift to a prominent local bank. That’s not government.

About Tip Johnson

Writers • Member since Jan 11, 2008

Tip Johnson is a longtime citizen interest advocate with a record of public achievement projects for good government and the environment. A lifelong student of government, Tip served two terms on the Bellingham City Council and has worked on many community boards and committees. He travelled with the Federal Transit Administration and Department of Commerce on mass transit trade missions in SE Asia and Africa before settling down to focus on keeping public interests at the fore of local government and the course of growth and development.

Comments by Readers

Tom Pratum

Apr 15, 2008

Clearly the area is inappropriately zoned; we have known that for some time now. I don’t see how any attempt to rezone it at this point will have any effect on the current proposal, which is vested under current zoning.

There are a lot of areas in Whatcom County that were inappropriately zoned and we are stuck with them. How about Sudden Valley as a huge example. The Kendall area is yet another, and I think a lot of folks would think Birch Bay is another. All we can do at this point is try to get parts of them downzoned that do not yet have pending applications.

It is obvious to me that we need to make sure areas like this are not inappropriately zoned in the future. A recent attempt was for Galbraith Mt, but there will surely be others.

Tom Pratum


Tip Johnson

Apr 15, 2008


It’s not clear whether the project is actually vested.  The City thinks it probably is, but the City has never done anyything that might detract from this project. The test will need to be in court. Larry Horowitz has outlined this issue in the following article:

The City has the right and a duty to reevaluate zoning errors.  I believe they have considerable latitude for correcting such errors, particularly when the zoning is ostensibly irrational and public harm could result.

Given that there is no evidence of any public process, rational or not, leading to the zoning, and since the result is obviously inconsistent with the rational framework otherwise arrived at through a bona fide public process of record, and because significant harm might also occur, I believe the City has every right to review the zoning and designate land use that is rational, whatever that might be.

All the available evidence points to it being a mistake. If it was not a mistake, then it is likely something much worse, like fraud or corruption. Regardless of which, the City still has a duty to revisit and correct the error.