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Our Public Property Rights For Sale - Cheap!


The City bends over backwards to protect private property rights, but when it comes to public property rights, it’s a fire sale! And they are tone deaf. See here and here. Just one of many increasing examples.

In under two minutes, on their July 26th meeting, with almost no discussion, the City Council sold our public property rights on a 26 year old public trail to add density to an adjoining development. The trail was built by citizens in 1994 under a City sanctioned neighborhood program called “Make a Difference Day”.  The ordinance approves the transfer of between 7 to 10 units of density for $18,000.  The right-of-way is fully encumbered by utilities and could never be built on, so the density transferred was literally created out of thin air.

The ordinance was approved despite significant errors of fact in the Hearing Examiner’s Findings, without meeting the City’s own Street Vacation Policies and while failing to follow relevant State Statutes.

The Video:
It is short and boring, but you can watch:
- Consideration begins 1:21:00
- Dan Hammill moves approval
- Hollie Huthman seconds the motion
- Gene Knutson speaks against the measure
- No other discussion

The Vote:
- Lisa Anderson, 5th Ward, votes NO 
- Dan Hammill, 3rd Ward, votes YES 
- Hollie Huthman, At-Large, votes YES 
* Huthman is running for election this fall*
- Gene Knutson, 2nd Ward, votes NO 
* Knutson is retiring this year. Huthman is seeking his seat*
- Michael Lilliquist, 6th Ward, votes YES 
* Lilliquist represents the area and is running for re-election this fall*
- Hannah Stone, 1st Ward & Council President, votes YES 
- Pinky Vargas, 4th Ward, votes YES 

The Result:
- Approved 5-2 (1:22:55)

It’s not that citizens didn’t speak up and try.  Scores of comments in opposition were submitted. Only the proponents and staff supported it. You can read the background:

Dirty Deal at Douglas and 21st - Dec 02, 2020
The Douglas Avenue Trail - Dec 02, 2020
Will City Double-Down to Kill Public Trail? -  Jan 24, 2021
Mayor Is Asked To Preserve Trail - April 30, 2021

It is no accident that the Administration sat on this for months, waiting to take action until the middle of summer vacation was upon most citizens. They knew a petition would be forthcoming and tactically proceeded now when folks are traveling, adventuring and hosting guests.

The ordinance becomes effective on August 10th absent a mayoral veto. However the Council can override a veto with the same five votes that approved it. So citizens may wish to voice their concerns to both the Mayor, all council members, or to any individual member whose email address may be found at their respective links above.  But expect deaf ears.

One remedy would be to take it to court where the City would have to defend their procedural improprieties.  Any attorney interested in volunteering for this effort is welcome to apply.  However, pro-bono attorneys are rare and it would otherwise cost citizens thousands of dollars.

The other option is a referendum. Citizens’ reserve the right, under Article 10.08 of the Bellingham City Charter, to refer any ordinance Council approves to a vote of the people for ratification or rejection. Filing of such a petition abates the force and effect of the ordinance pending results of the vote. This is the citizens’ last resort and requires the signatures of 3,000 qualified voters.  It is a necessary first step toward the long needed reform of city policies to retain public right-of-ways for open space, trails and habitat in the face of intensive development.

Anyone interested in helping to organize a petition drive to preserve public property rights is encouraged to write Tip Johnson. A meeting of interested parties will be held before the filing deadline.

See an online petition here. Please sign with your address/zip code and Y/N for City voter so the auditor can check your voter registration status. Only registered City voters count, but anyone can sign to show support.  Please also download a paper copy, sign and return because we don't know if online signatures will be accepted!  Get a few more signatures, too.

You can download the print petition below and get started gathering signatures.  Feel free to email it to like minded friends.  Or send them the link to this article to get more info and download their own.

Preserve public property rights & save the trail!  Thanks for your help.

(Records of the case can be found by searching for HE-20-PL-016 here>Attachments>Open. Esp. Attachments K & L.)

Attached Files

Comments by Readers

Michael Lilliquist

Jul 28, 2021

The following is part of an email reply I sent to a Happy Valley resident about the Douglas Ave right of way decision. She was wonderign why the City “gave away” public property:

The City never owned this property to begin with.  Rights of way are not owned by the government; the underlying land is the private property of the property owner.

As one authority puts it: “As a general rule, a city or county right-of-way is an easement for public travel. (An easement is a privilege or a right, distinct from ownership, to use in some way the land of another.) So, typically, a city or county does not own the fee title to the property underlying the public right-of-way; the abutting property owners have that fee title, and that title usually extends to the centerline of the right-of-way.  See

The right of way is a bundle of “use” rights, the primary right being the ability to put in a paved street across the private property.  Secondary to this right is the ability to support other forms of public travel, such as pedestrian trails or bike ways. Also included in the right of way construct is the ability to have utility easements, both for publicly-owned utilities (e.g., water and sewer lines) and for privately-owned utilities that serve the public (e.g., telephone and power lines).

This is important background information to understand what did and did not occur for the Douglas Ave right of way.  The city did not give away or sell the property, because the City never owned it to begin with.

Moreover, in this case the entire property is encumbered by utility easements, which continue to exist, That means that the property cannot be developed with any kind of permanent structure. No one can put a building on this particular piece of property. That did not change.

The City did have a right to build a paved street, but no one wanted a street to be built, least of all the City traffic engineers. I certainly don’t want a street there.  The city council agreed to surrender the right to build a paved street (and we were paid by the property owner for giving up this right), but the City retained all of the public rights for a trail.  In fact, the public trail will now be protected and secured by a permanent, recorded public trail easement right.  In a sense, the trail is more clearly protected now than it was before.  To me, that was the most important outcome. That trail is valuable, I want to make sure it is protected and preserved.

More than that, if the development of the property encroaches on the trail easement, even temporarily during construction, then the trail must be rebuilt at the developer’s expense and according to City parks standards. That would be an improvement over the current state. The trail was built by local residents, but it has fallen into a bit of a sad state. It is steep, eroded, and overgrown in places. It could use a little love and care, just as it received in the past due to volunteer efforts.

I hope you find this reply helpful to address transparency to what you called “the murky world of city politics.”  If I can be of further service, please let me know.

This next part was not part of my reply to the resident:

Tip says that the street vacation served to “transfer between 7 to 10 units of density” to the vacated land. That is not true.  The density that existed before remains unchanged and in place. It did not move, and it did not increase. The difference is that the developer can now use some portion of the right of way to handle parking and driveways, in order to meet code requirements for new units. This will allow the developer to more fully achieve the planned/zoned density.  Please realize that achieving planned/zoned density is an explicit policy goal of the City of Bellingham, as part of efforts to put density where it is planned and reduce pressure to upzone other areas. This is part of the larger goal to provide more housing opportunities and more affordability, while respecting existing neighborhood’s character. It’s a tough balancing act.

Over the past decades, Bellingham has seen developers under-build in many parts of town (e.g., in Puget neighborhood), while in other parts of town developers push the envelope in the other direction to maximize density (e.g., along N. State St).  These are two examples of planning gone wrong, in my opinion. It is frustrating to see the many ways developers use the letter of the law to subvert the intent of the law, and the reasons are complicated. But the City’s policy goal is simpler: to build new housing in line with the publicly-adopted planned density, not more and not less.

Achieving planned density adjacent to this part of Douglas Ave is fully in line with adopted public policy.

And preserving a public trail is also fully in line with adopted public policy.

I believe my vote accomplished both in a balanced fashion.


Tip Johnson

Jul 28, 2021

 I was copied on Lilliquist’s letter to his constituent and replied to them:

“Michael is correct.  The City doesn’t own the property.  The City does have specific public property rights for, as he says, “forms of public travel, such as pedestrian trails”.  Well, there is the trail built under a City program 26 years ago and in continuous use since.  The Public exercised those rights by opening the right-of-way.  Lilliquist voted to give them away.  His lecture below clearly shoes that he cares much more about private property rights and development densification than he does about public property rights and the quality of our urban environment.  His denigration of the “sad state” of the trail plays right into the “the murky world of city politics” he condescendingly mentions later.

He is also correct that the trail will be preserved for now under the terms of the vacation.  However, if the ordinance takes effect, the trail will exist on private property and be subject to the whims of future administrations in conjunction with the landowners, changing over time.  Given the City’s historic predisposition toward private vs public rights, it does not adequately secure the trail in perpetuity.
The real issue is City policy for street vacations and prioritizing our public property rights, not just here, but citywide.  Street right-of-ways are reserved for public purposes at the time of a property’s original subdivision.  As densification infill occurs, these limited resources will become increasingly important to our quality of life.
Michael doesn’t get that.  And if he doesn’t understand the “murky” bit, he might explain how the Parks Department never attended the Technical Review for this application or testified before the Hearing Examiner, how the land use consultant (former chair of the Planning Commission) worked with staff and the applicant to pretend the trail didn’t exist, how the consultant and staff both expressed surprise that there was a trail - even though it is clearly shown on the official City Trail Guide - but somehow had the foresight to come prepared with an alternate plan for a steep concrete stairs straight up the slope, stipulating that the applicant would not have to build it.  That’s murky.
It is even murkier when you realize the Hearing Examiner’s Findings contained significant errors of fact, that City vacation Policies were not met, and state statutes ignored.  Yet Michael approved the measure and appears willing to defend it.  Michael is up for re-election this fall.”
As for the rest of his comment above, he is not accurate that the vacation will not add density to the applicant’s project. That is simply untrue, and was discussed extensively in the Hearing Examiner’s deliberations as helping to meet City density goals - even though City policy states the future use of a vacation use is irrelevant to considerations and should not be discussed.  With the vacation, the applicant also adds the right-of-way adjoining the opposite property to their existing fee interest. That adds area to increase the project density.  Michael should know that.

Michael Lilliquist

Jul 28, 2021

Tip wrote: “The real issue is City policy for street vacations and prioritizing our public property rights, not just here, but citywide…. As densification infill occurs, these limited resources will become increasingly important to our quality of life. Michael doesn’t get that.”

I sense some contradiction within Tip’s comments.  Tip agrees that a private party owner owns the property, yet he implies that respecting that private property right is a problem. The trail was on private property before, and it is on private property now. That’s how rights of way work. He acknowledges that public trail usage has been protected and that the private property is still encumbered, yet he says the public interest has not been prioritized.  How so?

Tip also refers to errors in the Hearing Examiner’s decision and to a City Trail Guide document—which is ironic because I was the person who put that important document into the record as part of the remand process—a remand, by the way, which I initiated and argued for. In other words, I created the situation that allowed the record to be corrected and the trail to be preserved. 

With regard to density, Tip and I have a different understanding of how it should be described. I admit that I may not have all the facts—because, as he writes, street vacation decisions are not supposed to consider the future use of the property, but are based instead on the public need or lack of need to retain a right of way. We are not supposed to use rights of way as a tool to limit growth (in fact, their purpose is to aid private development by providing public streets that will be maintained at public expense).

That said, there was no rezone involved. No numbers regarding density were changed. The issue is not allowed density, but achieved density.  My understanding is that removing the possibility of a paved street does help the developer to achieve planned/zoned density and to comply with building codes and parking requirements.

I think it may be useful to ask the question this way:  What public interest is being harmed by giving up the paved street?  Since no one argues that there is a public interest or desire to build a paved street on this property, that cannot be the harm.  And since the public trail and utility easements continue to exist and are supported by law, that aspect of the decision is not the problem, either.  So what public interest is being compromised?  Tip says that the “quality of urban environment” is being harmed.  How so?  People like Tip have made it clear that they are opposed to the increased number of residential units that may be built.  Is that the real complaint?  And if so, what public policy is served by preventing development of these units, when in fact the adopted public policy is to increase housing opportunities within city limits and within already-existing density limits?

Tip says I care more about “development densification.”  Again, the trail is preserved, and no one wants a street. So the real problem, apparently, is that people like Tip do not want the density.  To achieve that end, it appears that he believes we should use the City’s right to build paved streets (streets no one wants) as a tool to prevent housing from being developed.  I disagree.

Finally, yes I am up for re-election.  My opponent is on board with the idea of “housing for all” as a right.  It would be perverse if she opposed more housing, although not suprising if she demonized private development. I believe she probably favors public housing.

Not much is known about my opponent, but she was a leader in the group that demanded 100 no-barrier shelters, after the City set up 25 “mid-barrier” tiny homes and the mayor offered to set up 25 more low-barrier homes.  Her group rejected the city’s offer, of course, and the City went ahead and found a local non-profit instead (Road2Home) to set up a shelter with on-site services. That project is now nearing completion. 


Tip Johnson

Jul 28, 2021

Yes, Michael, ROWs are technically private property until put to a public use.  However, such properties are subservient to the public’s rights from the moment of subdivision, a fact you don’t seem to be able to grasp -except for development and density.

As for your sophistry, reductio ad absurdum “logic” and condescending attempts to equate preserving dominant public rights with wanting to pave roads…I will leave it to the readers to judge the merits of your arguments.

The fact is that if the ordinance you approved goes into effect the trail will exist on private property without the benefit of the public’s dominant rights, and plenty could change in the future that would not be possible if our rights are preserved.

Yes, you are up for reelection and I hope you will not use the comment section to campaign against your opponent.  Sometime you just have to vote the innies out, especially when they ride roughshod over rights you have already exercised.


Margo Terrill

Jul 28, 2021

I am not familar with any of the legalities mentioned in this discussion though I do understand what ROW’s and easements and fee title and things like that, well enough to follow along. I love the trails of Bellingham. I hope to see the city manage the inevitable growth in a way that preserves as much of the feeling and natural beauty of Old Bellingham as possible. It’s a monumental task and utterly thankless to work on the solutions to the multitude of issues that have to be dealt with. No one is going to be happy - I guarantee it.

I don’t understand what Tip is saying but Michael has put things in very plain words that I understand. I would like a more simply worded explanation of Tip’s point. Maybe if I’d been following this more carefully in the past I’d understand but I am afraid I don’t. Sorry.

At this point, Michael is making more sense to me but I’m open to being convinced otherwise.


Tip Johnson

Jul 28, 2021

Margo, I will try. 

When property is subdivided, the town makes reservations (ROWs) for public purposes such as utilities, paved roads and pedestrian ways. These areas are technically private but subject to public use. When ROWs are opened for a public use, that use is “dominant” and private uses “subservient”.  An opened ROW will generally not be eligible for vacation, as this one shouldn’t have been. 

Before a ROW can be vacated, the town must “find” that it is surplus to the town’s needs. Thus, the trail can be preserved in the vacation, but will exist on private land without the benefit of dominant public rights, and carry the presumption of being unnecessary.  Future administrations and property owners could take that argument to the conclusion that the trail need not be maintained. But not if the ROW is retained.

This trail uses the full width of the ROW and was opened 26 years ago and has been in continual public use.  Removing the public’s rights weakens the town’s authority for public use of the land. The trail might be preserved for now but if, for instance, the town wished to upgrade to a automated elevator in the distant future, it would require the property owners permission, which might not be available. But not if the ROW is retained.

There are many underutilized ROWs in this town that could lend themselves toward off road pedestrian/bicycle connections.  If you like trails, you might agree that we should not be so quick to surrender our rights.

Hope that helps.


Margo Terrill

Jul 28, 2021

Thanks so much, Tip. Now I understand!



Jon Humphrey

Jul 28, 2021

God Michael, I wonder if you’ll ever use your intellect for the public good instead of against it. We are in the middle of a climate emergency. We need to stop destroying natural resources just to line the pockets of special interests. No matter what the laws are it’s obviously time to stop and think before allowing new construction of any kind. The energy footprint and environmental damage need to be considered before any action is taken. Many buildings in Bellingham are vacant and in excellent shape. Why the hell are new ones being built when old ones can be reused? Oh yeah, to line the pockets of your donors. You guys do the same thing with public-fiber optic resources. Trying for exclusive, big telecom only, leases instead of Open Access so you can give our public resources away in a corporate welfare scheme where you do what you always do, “help those that can already help themselves.” I remind readers that it’s an election season. We can do better than Lilliquist, etc.


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