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Hickory, Dickory, Docketing…Yet Another Spot Rezone

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The bar for getting the city to consider rezone proposals [docketing] is set so low that if docketing were comparable to getting a driver's license, a dead drunk would easily pass the test. So it was last Thursday when the Planning Commission voted unanimously (with two absences) to recommend to the City Council to docket the rezone of the property at 801 Samish (lot just south [left] of area 8 on Samish Neighborhood Land Use map, above,) from Residential Single to Commercial Planned (non-retail). Our readers may remember my piece on an earlier attempt by the property owner and its representatives to docket this rezone without following the Type VI process required by the Bellingham Municipal Code (BMC). The council, upon receiving tremendous negative blowback from its venture into precipitous action that ignored the public, reversed its decision and asked the applicant to resubmit the rezone request under the docketing rules. You can read more about this folderol in my article entitled Planning Commission and Samish Neighbors Bypassed on Rezone Docketing. Material regarding this ill-advised rezone, including the current application and staff comments, can be found here at the city's website.

No matter that the City Council and city management are lamenting the prior creation of a patchwork of zoning throughout Bellingham, the Planning Commission blithely decided that consideration of yet another rezone of a single parcel in the middle of a residentially zoned neighborhood would be just hunky-dory. The acreage is owned by the Church of Christ which operates the church under a conditional use permit. The group interested in purchasing the property, Pacific Harbor Holding, LLC, is the legal rubric for a group psychology practice now located on Bellwether Way. Unfortunately for the group, medical offices are not a conditional use under the BMC in Single Family zoned areas, so the only path for legal use is to change the zoning to Commerical Planned. The actual application for rezone states Commercial Planned (non-retail). This designation was designed to attenuate criticism from the neighborhood by limiting the possible uses. The problem is that there is no guarantee, in spite of claims to the contrary by the psychology group, that they will be there in perpetuity. Their motives may be noble, but as is said, the road to hell is paved with good intentions. So once rezoned, the single family neighbors around the site could be confronted with a number of problematic uses to include… a recycling center! Ain't that just ducky?

For its part, the psychology group just loves the area. Trees, grass, single family homes, a church across the street, the Elks Club. What could be more idyllic and comforting? The problem is that the properties between the Elks Club and the Community Baptist Church opposite 801 Samish are also up for a spot rezone (Area 9 on Samish Neighborhood Land Use map above) from Commercial Planned (non-retail) to Commercial Planned that allows retail AND associated apartment buildings. Ironically, this possibility was disconcerting enough that an official of the Church of Christ (our seller of 801 Samish) came to an earlier neighborhood meeting on the rezone of these parcels out of concern that apartments and associated retail may be disturbing to his congregation and render difficult quiet contemplation. If these two rezones happen to be approved, the Community Baptist Church and the Elks Club (on either side of Area 9) will suddenly become much more interesting as potential commerical property than the present residential single designation of those parcels. The prospect of further commerical development by rezoning the Baptist church and the Elks property would likely make these parcels more valuable and exert pressure for these entities to sell their properties at an elevated price. Bye-bye idyll and comfort.

The City Council will be considering the docketing of 801 Samish at its 13 October meeting. Perhaps common sense will prevail and this rezone will be sent to the dust bin.

About Dick Conoboy

Writer • Member since Jan 26, 2008

Dick Conoboy is a recovering civilian federal worker and military officer who was offered and accepted an all-expense paid, one year trip to Vietnam in 1968. He is a former Army [...]

Comments by Readers

Abe Jacobson

Sep 24, 2014

Dick,
I get it that the psychology practice finds this site attractive.

But… is there not a large inventory of commercial sites, presently vacant, in and around Bellingham?

What is unique about this site that Council finds an administrative action so compelling?

Baffled in Bellingham.
aka Abe Jacobson

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Dick Conoboy

Sep 24, 2014

Abe,

Baffled?  I cannot imagine why.

The psychology practice reps claim that they have been looking long and hard for an appropriate site, one that meets their needs but, alas and alack, they have found none.  I assume they are being forthright about the difficulty in finding such a location, however, their urgency in finding a new home is not a rationale for the city to move precipitously on a rezone action with long term implications.

I have no idea what the inventory is of appropriately zoned (for their purposes) property is.

The fact that this is a psychology practice probably led the council to want to help them find a home.  We all know that these services are badly needed in the city.  However, this is a private corporation and the council moved outside of the normal Type VI process for a rezone (and Comp Plan Amendment) which is legal but not advisable as the council found out when the neighbors read them the riot act.

The action is back on track through the Type VI process although much remains to be debated about this parcel.  There is also the ridiculously broad criteria for docketing that virtually ensures that the docketing of this rezone will be approved by the council at the hearing on 13 Oct for consideration next year with other Comp Plan amendments. 

This is also a spot rezone about which the council and the administration are presently weeping and gnashing their teeth.  “Zoning is out of control!”, they cry and in the next breath, these spot rezones are all docketed.  Area 9 across the street from 801 Samish has already been docketed for a spot rezone as well as the Ashley St. property above the Lincoln Park & Ride.  This is like screwing for chastity.

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Mike Rostron

Sep 24, 2014

There is one obvious solution to the city’s developer-driven approach: Neighborhoods should have final veto power over all zoning changes and developments over a certain size (area, height, etc.), through a vote of registered neighborhood residents. This idea very nearly passed a city vote in Spokane not too long ago. If all zoning changes and large developments had to be vetted at the neighborhood level, neighborhoods would have much more say about how they develop. In short; we are suggesting a more democratic process. Normal development which conforms to neighborhood zoning, of course, should not have to go through the same kind of vetting procedure. The city’s type VI process is not enough to ensure the best interests of neighborhoods, or the city at large. Especially, as in the recent case of the DOT site, when the city often ignores its own regulations, or “creatively” manipulates the rules.

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Dick Conoboy

Sep 25, 2014

Mike,

No doubt you remember that we has something akin to that kind of neighborhood approval after the formation of the Mayor’s Neighborhood Advisory Commission at which time it was formally included in the process of such zoning/comp plan changes. Unfortunately, the mayor proposed and the MNAC members accepted to vote themselves out of the formal process. This foolishness was granted an imprimatur by the city council and they voted to bypass MNAC by rewriting the ordinance that created the group over a decade ago. 

Of course, MNAC can still decide to recommend to the council its thoughts on various rezones or comp plan changes but since the adoption of the new MNAC ordinance a few years ago, not one action/recommendation concerning planning has been taken up by MNAC.

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Michael Lilliquist

Oct 01, 2014

Abe, the City Council neither wants nor opposes this rezone. Private property owners have the right to request a rezone, and the city is required to process that request. As Dick says, the bar for docketing is low, but docketing does not mean approval. Docketed items have been rejected.

I think the phrases “spot zoning” is thrown around too loosely. It’s not quite what people think. Just because a single parcel is being rezoned does not make it a spot zone. The actual test is more subtle and rarely explained to the city council. It’s not improper zoning for one area to be assigned different zoning that adjacent areas (that happens all the time, every where). What is improper is when there is no public purpose or planning goal to justify the difference in zoning, so that the only real beneficiary is the owner of the re-zoned property. In other words, a rezoning decision can benefit the land owners, but it must also serve a public purpose or planning goal as well. Does the change make sense for the community as a whole?

From the MRSC:

“According to Richard Settle in Washington Land Use and Environmental Law and Practice, the issue with spot zoning is not the differential regulation of adjacent land but the lack of public interest justification for such discrimination. Where differential zoning merely accommodates some private interest and bears no rational relationship to promoting legitimate public interest, it is “arbitrary and capricious” and hence “spot zoning.” The term “spot zoning” is not really a distinct legal doctrine. It is really a “misleading term for the application of the constitutional requirements of equal protection and substantive due process.” See Settle at section 2.11(c). Courts will overturn a rezone if it grants a “discriminatory benefit to one or a group of owners to the detriment of their neighbors or the community at large without adequate public advantage or justification. . . .” Bassani v. County Commissioners, 70 Wn. App. 389 (1993).”

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Dick Conoboy

Oct 03, 2014

Michael,

Glad you agree about the low bar for docketing rezones.  Perhaps the council might want to reconsider the criteria for such.  If just about all rezone requests are docketed, why have a docketing procedure at all? 

Thanks for the clarification on spot zoning.  I think Mr. Settle is “spot” on with his explanation which fits to a tee the proposal to rezone this parcel from residential single to commercial planned (non-retail) simply to allow a current POTENTIAL buyer to carry on a business that may or may not endure.  The business has its emotional appeal, mental health treatment, which is being exploited to the Nth degree but their “business” (this is not a non-profit outfit)can be conducted in many different environments and locations.  It is just that the buyers happen to “like” this particular site.  It is not that there are no other places available. 

It seems that few people are thinking ahead as to the possible consequences down the road if this rezone is eventually allowed.  I think I explained that scenario in my article.  Shortsightedness has poisoned many a decision in this city in the past.  The council should be looking off 10 or 20 years.  The single family home residents who bought the surrounding parcels certainly thought they were looking ahead when they saw the residential single zoning of this parcel next door.  Now they are looking at the distinct possibility that this end of Samish Way will devolve to a mini-commercial corridor.

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