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.