Much ado about nothing … or… Why the Fairhaven Highlands EIS is meaningless

Please don’t misunderstand. I’m not claiming that the Fairhaven Highlands environmental impact statement (EIS) does not have the potential to be meaningful. However, in its present form, when the draft EIS is published, it will represent a colossal waste of time and effort and won’t be worth the paper it’s written on.

Why, you ask? Well, consider this. The Washington Administrative Code (WAC) mandates that an EIS shall include reasonable alternatives in addition to the “no-action” alternative. It states, “Reasonable alternatives shall include actions that could feasibly attain or approximate a proposal’s objectives…” Unfortunately, because none of the alternatives being considered by the EIS meet the requirements of the Bellingham Critical Areas Ordinance (CAO), none are feasible. Spending enormous amounts of time and money analyzing alternatives that are known to violate existing law is a massive waste of time.

Hold on, you say? Isn’t the application vested? Isn’t it OK if it violates the CAO as long as it meets the requirements of prior law? Well, not necessarily. Consider these statements from the June 2008 Final EIS for Emerald Pointe in Burien, WA:

“According to Washington case law, the ‘vested rights rule is generally limited to those laws which can loosely be considered zoning laws’ (New Castle Investments v. City of Lacenter). Therefore, a project is only vested to those regulations specifically established to control land use-related activities… To ensure appropriate public safety, vesting does not apply to regulations governing health and safety.”

So, to the extent the Bellingham CAO is designed to protect health and safety, vesting does not apply. Here’s what the CAO says:

“By limiting adverse impacts and alteration of critical areas, this Chapter seeks to accomplish the following goals: 1. 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.”

So, the CAO was adopted to protect the public from a host of environmental catastrophes. Pretty straightforward, right? As a public safety regulation, is the Bellingham CAO subject to vesting? Not according to the Emerald Pointe EIS and Washington case law.

Does it even seem appropriate to allow adverse impacts and alteration of critical areas that increase the risk of injury, loss of life, and property damage simply because a developer submitted an application on Friday, November 18, 2005 instead of Monday, November 21, 2005 (the date the CAO was adopted)?

If you had to decide, on which side would you err? Would you protect the community from injury, loss of life and property damage while limiting the potential impacts a developer can impose on critical areas? Or, would you allow the developer to impose greater impacts on critical areas that increase the risk of harm to the community simply because he submitted his application one business day before the CAO was adopted? Isn’t this a no-brainer?

When all is said and done, I believe city officials will do the right thing and will protect the safety and welfare of the community by requiring Fairhaven Highlands to meet the safeguards that are unique to the CAO. When they do this, none of the alternatives under consideration in the current EIS process will be feasible except the no-action alternative, and the current EIS process will have been a waste of time and money.

Unfortunately, many decisions are being postponed until the draft EIS (DEIS) is published. Hopefully, city officials will understand that when they receive the DEIS, its value will be nominal.

About Larry Horowitz

Commenting member • Member since Jan 16, 2008

Comments by Readers

g.h. kirsch

Feb 04, 2009

As one whose eyes were beginng to glaze over listening to all the Chuckanut rhetoric, here’s an argument I.like.

The ball’s certainly hit hard into the city attorney’s court. Going to take more than a reaching backhand to hit that one back.

Now work on your trash talk a little and you’re a player, Larry.

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Larry Horowitz

Feb 04, 2009

Thanks, coach.  I’ll check out some of your old posts for some of the finer points of trash-talkin’.

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Steve Wilson

Feb 04, 2009

Larry,

My comment actually loops back to your Jan. 31 post about Planning Commission appointments, but relates to FH and upcoming EIS.
I notice that the next potential re-appointment coming up on the Planning Commission is Chris Sahlin (4/1/09, April Fools Day).  Chris’ family are the former property owners at Chuckanut Ridge.
Any guess how the mayor might handle this imminent re-appointment opportunity in light of Mr. Auer’s treatment?

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Larry Horowitz

Feb 05, 2009

Steve,

As you point out, it will be interesting to see how the mayor handles Sahlin?s reappointment (assuming Chris has re-applied).  I have absolutely no idea what he?ll do; however, Joe Yaver brought a crystal ball to the Citizens? Forum on population projections.  Perhaps Joe will give us a free reading.

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Tip Johnson

Feb 05, 2009

Steve - A deviously clever and insightful question.  I am in awe!  BTW, I had occasion to wonder whether Kurt Baumgarten’s appointment was similarly structured to give DOE a better seat at the waterfront development table.  But judging from online photos of his sailing trips to Inati Bay, I am comforted to know that he is under adequate, competent supervision ;-)
...

Sure Larry’s argument is good.  That’s what Larry is about.  But the other now eye-glazing arguments were compelling in their day, too.  Together, they represent quite a story of either incredulous serendipity or shameful favoritism. Larry’s argument, added to the already gigantic heap of unbelievable errors, omissions and advantages, will soon also seem tedious and over-constructed. Simple solutions are always sought no matter how complex the problem. This disadvantages citizens, saddling them with the indignity of explanation and helps those better equipped for long-range planning.

Meanwhile, the land is still the land, the fish still must eat and breathe.  They still depend upon clean waters flowing downhill. Puget Sound is a treasure we all share.  It’s health, in jeopardy after more than thirty years of regulating pollution now hinges around improving urban stormwater quality.  Fish would like that! If fish are healthier in our streams, Puget Sound will be healthier, period. That’s the way it works.

Now here’s the rub.  The DEIS will soon be out, disgorging unprecedented volumes of technical data for citizens to pour over and dig through, all the while suffering upon them an increasingly complex indignity of explanation, ultimately committing them to thousands of hours and even more dollars. The tedious history of eye-glazing details will undoubtedly be absent from the report. A whole new generation of challenges to a whole new generation of errors, omissions and advantages will be born.

Our mission, should we choose to accept it, is to shepherd this emerging consideration to include acknowledgment of the fish and the shrimp they eat, the slopes and the landslides they portend, the teeming abundance in the wetlands, their potential liquefaction, their purity and the future of Puget Sound. In short, to champion human health and the environment.

Wouldn’t it be nice if our elected representatives did that for us?  The fish would like that!

After twenty eight years of struggling and hoping to achieve that end, of constant objection and explanation, of wondering at mysterious rezones, unprecedented determinations and absurd applications, it may be time to give up on public officials.  It could be time to take it to the bank’s depositors.  I’ll bet most of them care more about the fish than which bank they use. Nobody needs community banks that are bad for the community.

I foresee a change on the Horizon.

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Larry Horowitz

Feb 05, 2009

Don?t ya just hate it when people comment on their own articles?  I know I do.  And I hate myself for doing it here.

But it?s frustrating for me to have an inbox teeming with emails from people thanking me for posting these columns; while there are so few comments posted here.  For everyone who has written me with your kind words of support, I thank you.  But if your goal is to actually win the battle over Chuckanut Ridge, you?ll need to consider becoming more proactive.

Here are three things you can do:

1) Read the email I sent to Mayor Pike and City Council on February 3rd under the ?Related Links? above.  If you agree, please contact the Mayor and Council members and encourage them to take action to protect our safety and welfare.

2) Read the article I posted on NWCitizen on February 2nd ?How Horizon Bank chose greed over the safety of its community.?  If you agree, please contact Horizon Bank CEO Rich Jacobson @ 733-3050 and encourage Horizon Bank to agree for the Fairhaven Highlands development to meet the unique safeguards of the Bellingham Critical Areas Ordinance.

3) Finally, please add your comments to these articles.  You and I know that you read them; however, those who are in a position to make decisions on this issue need to hear from you.  Don?t be shy.  Greg Kirsch?s bark is worse than his bite, and he?s assured me he?ll be gentle.

Last, but not least.  To Tip Johnson, thank you for your incredible dedication to this issue and for breathing life into my mundane logic.  Your insights are always appreciated.  On the other hand, I must say that you do not know me if you believe that making ?good arguments? is what I?m about.  Like you, I wish this issue had been resolved years ago.  There is no joy in this fight; but fight we will, like guerillas if we must.  I develop these good arguments not because this is what I?m about; but because this is my contribution to what we?re all trying to accomplish.  I?m disappointed if you did not already understand that.

Best to all,
Larry

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g.h. kirsch

Feb 05, 2009

Well Larry, you clearly haven’t consulted anyone I’ve actually bitten!!

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Tip Johnson

Feb 05, 2009

Larry,

No need for disappointment.  I’m with you a hundred percent. Put another way, I meant no one should expect to hear bad arguments from you because that is definitely NOT what you are about! It’s a compliment ;-)

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Tip Johnson

Feb 05, 2009

Gentle readers,

NWCitizen is all about hearing people’s arguments. And there is a reason that we do it under our real names.  It keeps the trolls out, for sure, but there is a better reason.

As Larry points out, all too few take the time or make the effort to present their opinions.  If more would, doing so would be much more comfortable for all. Ideas would advance more quickly.  It’s unfair to saddle a few with the burden.  So thanks, Larry.

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