Update Oct 31:
Upon further review of the correspondence between the applicant’s attorney and Interim Planning Director Jeff Thomas, it’s not clear whether there has been any meeting of the minds.
In the attorney’s Oct 28 letter, he observes that the revised estimate for the EIS of $345,000 substantially exceeds the initial contract amount of $75,000. I agree. But is anyone really surprised by the cost overrun?
When the city went out to bid back in 2007, five consulting firms submitted proposals, which ranged from an estimate of 489 hours (ESA Adolfson) to 2,082 hours (Wheeler Consulting Group). ESA Adolfson was the consultant hand-picked and recommended by the developer. Wheeler was a primary author of the 1995 Chuckanut Ridge EIS and was very familiar with the property.
It was obvious to everyone that ESA’s bid, which was less than one-fourth of Wheeler’s, was insufficient. As it turns out, the final estimate of $345,000 is about 4 ½ times the initial estimate, or roughly what Wheeler proposed. Why is anyone surprised that ESA’s estimate was way too low? And how can the developer complain now when the city selected the developer’s hand-picked consultant?
The attorney goes on to assert the applicant’s right to seek mediation or other informal alternative dispute resolution if the applicant does not agree to the projected, additional expenses to complete the EIS. So, the applicant “sets aside” its request for an extension only to implement an alternate delay tactic. The attorney has asked the city to compile time and expense records, a task estimated to take at least 30 days. Then, after that’s complete, the applicant will likely seek mediation to delay the process further. An obvious stall tactic.
Finally, the attorney indicates that the applicant may “wish to revisit ‘suspension’ of these processes” at some point in the future. WTF?
In Mr. Thomas’ Oct 29 letter, he enumerates the terms of this new “agreement” with clear deadlines for items 1-3 and a vague, unenforceable provision for item 4. He also states that the city does not agree to any future “suspension” of the EIS process (nice work, Jeff).
Finally, in the attorney’s Oct 29 letter, he states that the applicant, Greenbriar NW Associates, “does object to the proposed contract revision” and wishes “to exercise its contractual rights of review and negotiation.”
And so the stall begins. Who needs an extension when you can game the system so easily?
- Has there been any meeting of the minds?
- Is the EIS process moving forward?
- Has the applicant violated the city’s 120-day deadline?
- Are these applications now null and void?
Update Oct 29, 6:00 pm:
This afternoon, the City of Bellingham posted two additional letters from the applicant’s attorney and one letter from the Interim Planning Director Jeff Thomas, as follows:
Letter from Langabeer & Tull to Jeff Thomas dated Oct 28 (here)
Letter from Langabeer & Tull to Jeff Thomas dated Oct 29 (here)
Letter from Jeff Thomas to Langabeer & Tull dated Oct 29 (here)
Based on my (very brief) initial review of these letters, it appears that the developers have “set aside” (read withdrawn) their extension request and are now willing to re-start the SEPA and environmental impact statement (EIS) process based on the following terms, as listed in Jeff Thomas’ Oct 29 letter:
1. The developers will pay $9,221.38 by Nov 5 for work already completed by the EIS consultant, ESA Adolfson.
2. The city will compile all time & billing records for work completed on the EIS by the city and by ESA and forward to the developers by Nov 30.
3. The city will propose changes to the original EIS agreement, including a detailed scope of work for the additional $107,802, and forward to the developer by Nov 30.
4. The developer must then “commence good faith negotiations in a timely manner to amend the Agreement” or the applications will become “null and void.”
My take: Although the first three requirements are clear enough to determine if they have been satisfied, the fourth item is so vague that compliance will be difficult – if not impossible - to determine. Such vague terms as “good faith negotiations” and "timely manner” provide too much flexibility to be strictly enforced. Once again, the city seems to have placed itself in a position that it will not be able to enforce its own laws.
It is essential that a time limit be established following the Nov 30 deadline for items 2 and 3 so that enforcement is possible on item 4. For example, item 4 could state that the amendment must be signed and the $107,802 balance paid within 14 days of items 2 and 3 being satisfied. Further, the applicant's responses to comments on the Draft EIS must be received within 30 days after the amended agreement has been signed.
Failure to establish enforceable provisions will allow the developer to drag out the process as it has already done for more than five years. The city attorney needs to modify these terms ASAP.
Update: Oct 29, 10:00 am:
I just spoke with Jeff Thomas’ assistant who stated she is not aware of any final decision being made on the extension request.
Regarding the assertion by the applicant’s attorney that the city cannot deny the extension request because of the “clear prohibitions … against governmental bodies using their police power jurisdiction to reduce the value…” I have posted David Bricklin’s response here. As Mr. Bricklin states, “Mr. Tull is guilty of mis-leading you with a statement that is only half true and which is totally inapplicable here.”
Original Post: Thur, Oct 28, 10:30 am
Dear Mr. Thomas:
As you know, BMC 21.10.190.C is the City of Bellingham’s law as it applies to the expiration of development applications. It states:
“Any complete land use application for which no substantial steps have been taken to respond to the City's request for revisions, corrections or additional information within 120 days of the written determination will expire and become null and void.”
In other words, the city has a standard 120-day deadline for applicant’s to respond to the city’s request for information. Only by exception is the 120-day deadline extended.
Due to the applicant’s failure to respond, the Fairhaven Highlands application was set to expire on April 30, 2010. It was extended and was set to expire on July 30. It was extended again and is now set to expire on October 29.
In his October 12 letter to you, the applicant’s attorney asserts that the city’s desire to enforce its own application expiration law is a form of “pushback” from your department. As a citizen whose rights are upheld by city laws, I am offended by this assertion. As anyone who has followed this application knows, the city has bent over backwards to accommodate the applicant.
In his letter, the applicant’s attorney also asserts that a recent city ordinance “explicitly recognizes an applicant’s right to request a project extension in the event of economic hardship, which is certainly the case here.”
First, the attorney is referring to Ordinance 2010-05-026 and BMC 21.10.260.D. As you know, this ordinance and code section only apply to “issued land use approvals,” not to land use applications. Since there are no land use approvals associated with the Fairhaven Highlands applications, the attorney’s reference is not valid. Further, the attorney’s inference that Fairhaven Highlands is “a project not subject to any deadline” simply ignores BMC 21.10.190.C, which establishes a clear deadline to prevent an application from expiring.
Second, this ordinance and code section require the applicant to submit a “sworn declaration” that the delay is “a result of an inability to secure financing.” As you know, one of the property owners is among the 80 largest banks in the United States with assets in excess of $13 billion. It is simply not fathomable that the applicant is unable to secure financing. Again, the attorney’s reference to this ordinance is not valid.
The applicant’s attorney also asserts that “the only aspect of this project that has any time sensitivity is the informational staleness.” Again, untrue. As the attorney knows, the only reason the applicant continues to request extensions is to preserve its “presumed” ability to circumvent the 2005 Bellingham Critical Areas Ordinance. As a homeowner who is extremely concerned about the safety risks imposed by the Fairhaven Highlands application - including “injury, loss of life, or property damage due to landslides and steep slope failures, erosion, seismic events, or flooding” – I am appalled that city would even consider such a circumvention of a public safety ordinance. Clearly, the applicant’s attorney is being less than honest with you.
Finally, the applicant’s attorney seems to imply that denial of the extension request would amount to a “police power jurisdiction to reduce the value” of the land. Again, I am offended. Mayor Pike has made it clear that your determination is completely separate from any potential land acquisitions by the city. Such an implied accusation by the applicant’s attorney is both offensive and without merit. Bully tactics such as these should not be catered to.
I join with thousands of residents in south Bellingham and request that the applicant’s extension request be denied. The applicant’s “critical issues” which prevent it from moving forward provide no justifiable reason for yet another extension.