Divesting Fairhaven Highlands: An open letter to Tim Stewart, Bellingham Director of Planning

Dear Director Stewart:

As I write this letter, I am reminded of a comment by a former planning department staffer who claimed he knew he had done his job well when he was hated equally by both developer and residents alike. He was referring to the fact that many planning decisions involve gray areas that require regulators to use judgment and choose among options with drastically diverse consequences.

Fortunately, the issue at hand is straightforward, and, while my request involves your action, it does not require discretion. In this case, the law is clear. But first… a little background.

As you know, before you began serving as Director of Planning, the Fairhaven Highlands subdivision and planned development applications were deemed complete by the planning department with lightning speed, in less than 5 business days - an amazing feat given the sheer magnitude and complexity of the proposed project.

What you may not know is that planning staff later determined that these applications were, in fact, not complete. As it turns out, although the April 2005 applications clearly involve direct wetland impact, the developer failed to submit the required Wetland & Stream (W/S) permit application, and staff failed to recognize this key omission on a timely basis.

In an email dated December 5, 2005, planner Kathy Bell wrote about Fairhaven Highlands to fellow staffer Marilyn Vogel, “After reading the Concurrent Review section of [Bellingham Municipal Code] Title 21, 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.”

In other words, the applications were submitted and deemed complete in April 2005. Seven months later, staff discovered an error in that determination; however, there is no evidence that staff corrected this error by rescinding its Notice of Complete Application. The error was detected, but left uncorrected.

Moving on…

On November 18, 2005, exactly seven months after it was required - and one business day before the city adopted its Critical Areas Ordinance - the Fairhaven Highlands Wetland & Stream application was finally submitted. Staff issued a Notice of Completion on December 16.

As you know, submitting a complete application is one of two requirements to become vested under the Washington Vested Rights Doctrine. As summarized by the Washington Supreme Court, “The doctrine is applicable if the permit application is sufficiently complete, complies with existing zoning ordinances and building codes, and filed during the period the zoning ordinances under which the developer seeks to develop are in effect.” [Noble Manor v. Pierce County, 133 Wn.2d 269 (1997)]

The law is unambiguous. To be vested, an application must be both complete and compliant with existing ordinances and building codes.

The issue at hand involves two questions:

1) Is the Fairhaven Highlands Wetland & Stream application complete?

2) Does the Fairhaven Highlands application comply with existing law?

As readers of my last article know, the Fairhaven Highlands application is not complete nor does it comply with existing law. But this is not new. Included in the public comments on the scope of the Fairhaven Highlands EIS is a (more than one-year old) letter from Responsible Development dated January 23, 2008, which examines this issue in excruciating detail, including eight specific reasons why the application fails to meet these requirements. In particular, items 7 and 8 assert that the application:

omits critical information about the Special Characteristics of five mature forested wetlands;

errs in its rating of these Category I wetlands; and

does not comply with the minimum buffer requirements then in effect.

So why am I writing to you now?

Because, after almost four years since the applications were initially submitted, the applicants themselves have furnished proof to you that the application is neither complete nor compliant with the laws then in effect. In fact, your department has placed this evidence on the city’s own website for all to see.

On March 31, 2009, the applicant submitted a revised Plant & Animal EIS Technical Report , prepared by Northwest Ecological Services (NES). Table 9 on page 46 provides an updated Wetland Categorization and Functional Summary. As you can see, the DOE ratings for Wetlands CC and JJ2, which were erroneously listed as Category II in the application, have been corrected and changed to Category I. These Category I ratings, which are marked with an asterisk (*), are “based on presence of Special Characteristics (mature forest).”

Table 7 on page 42 provides an updated Summary of Wetland Classifications. As you can see, the City of Bellingham (COB) ratings for Wetlands CC, JJ2 and KK have also been corrected and changed to Category I. Although not specified, it is presumed that Wetland KK is rated Category I based on its mature forested status.

So, as the community has claimed for almost four years, the applicants themselves have now furnished proof that the initial Fairhaven Highlands application:

1) Is incomplete because it omitted critical information about the Special Characteristics of these mature forested wetlands (even though such information is required by the Dept of Ecology Wetland Rating System);

2) Is erroneous because it incorrectly rated Wetlands CC, JJ and KK Category II under the COB rating system (per the original Wetland Delineation at page 16, Table 2) rather than Category I; and

3) Is not compliant with existing law because the 50’ wetland buffers provided by the application for these mature forested Category I wetlands are only half the 100’ required (BMC 16.50.080.B).

The law is clear: the Fairhaven Highlands application is not complete, is not correct, is not compliant, and is not vested. Simple. Straightforward. No discernment, discretion or judgment needed.

Back to my request…

As the Director of Planning, it is incumbent upon you to notify applicants when issues arise that impact their development applications. Applicants deserve to be notified as quickly as possible so they can adjust their plans accordingly, without delay.

Now that the applicants themselves have provided clear and convincing evidence that their original application was not complete and did not comply with laws in effect when submitted, you have a duty to inform them that their application must now comply with current law.

That is my simple request.

Thanks for your time. I appreciate the opportunity to share this information with you.

Sincerely,

Larry Horowitz

______________________________________________________________________________________________

Related Links:

Kathy Bell's email to Marilyn Vogel re: incomplete application

Prior article: Opinion for Hire: Part 2 – Admission of errors

Responsible Development Supplemental Comment Letter on Scope of the Fairhaven Highlands EIS, without attachments

Responsible Development Supplemental Comment Letter on Scope of the Fairhaven Highlands EIS, with attachments

Revised Plant & Animal Technical Report by NES, March 31, 2009

Fairhaven Highlands Wetland Delineation (Oct 2005) submitted with Wetland & Stream application

BMC 16.50.080 – Wetland & Stream Regulatory Chapter, Wetland Buffers

Aerial view of Fairhaven Highlands with Wetland & Buffer overlay

About Larry Horowitz

Commenting member • Member since Jan 16, 2008

Comments by Readers

Tip Johnson

Apr 10, 2009

I would only add that there have been a number of other irregularities over the years. Of course, Stewart has already assured citizens that their venue for contesting this project would be in the courts.  But isn’t it amazing that all the planning errors have benefited the project, not the citizens or the environment?  Wouldn’t it be nice to see some planning “for the people”? Cutting and pasting from what has already been written (without regard to redundancy):

“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.
+ This was an erroneous assertion. The connector was not built and the bridge did not require replacement.
+ Density to make the property economically feasible for development is not a legitimate basis for zoning.
+ 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.
+ 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.
+ The public was afforded no opportunity for input and no comprehensive review was conducted.
+ 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.
+ 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.”

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Vince Biciunas

Apr 11, 2009

Thank you once again, Larry, for providing a clear and documented case on why the Fairhaven Highlands project should not go forward as applied for. Thanks also to Tip for reminding us of the questionable dealings of the past. We should not forget until this situation is resolved.

Everybody wants to ‘save Chuckanut Ridge’ and here is a real opportunity to do so. Larry has spelled it out. It can start with City Hall or with the bank, or both.

The reason why is because there remains the ETHICAL argument: isn’t it time for ethics to play out in the business, banking and political worlds?

There really is no good reason for us to rely on the courts and fighting this out in the judiciary system.  What a waste of money on all sides, that none of us can afford.

Horizon Bank and Greenbriar Construction could take the tax benefits if any, and comply with their regulators’ recent instructions and donate the land to the city for a nominal price. The money (both value on the books and selling price) is already a moot point with our (and Horizon’s) economic situation. Shareholders have already lost investments, and the only other way is out.  Horizon’s and Greenbriar’s ethical standing would greatly be improved. It might even be reflected in citizen confidence in the management of their business and renewed investment in their businesses!

The Mayor and Planning Director or City Council could be heroes by taking the correct regulatory action as Larry proposes and by negotiating with the property owners, so that there would not be further contesting legal action. Greenways dollars could be spent on other projects, and even Responsible Development’s funds could go towards parks maintenance costs or some other community benefit. A win for the whole community!


Vince Biciunas

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