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City negligence spawns class-action lawsuit

By On

Dateline: Nov 11, 2011
Bellingham, WA

A series of recent landslides around the perimeter of Chuckanut Ridge, which caused substantial property damage, several injuries and one death, has prompted a multi-million dollar class-action lawsuit by two dozen south Bellingham residents.

Investigators have determined these landslides could have been prevented if the city had properly enforced its own Critical Areas Ordinance when it approved the Fairhaven Highlands development in 2010. The CAO, which was adopted in 2005, is the city’s only law specifically designed to “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.”

According to city officials, the CAO was not enforced because the Fairhaven Highlands project was vested under prior law. However, the Bellingham Municipal Code, which is consistent with state law, confirms that public safety trumps vested rights and allows the city to enforce current law and deny an application if necessary to protect the public. The class-action suit asserts the city was negligent and, by failing to enforce the CAO, endangered public safety.

In addition to seeking financial compensation, the lawsuit charges city officials with negligent homicide in the death of a 77-year old resident. Named in the suit are Bellingham’s Mayor, Planning Director, City Attorney, seven current City Council members, and two former Council members.

For more than four years before the project was approved, southside residents repeatedly requested that the city enforce the CAO and its unique safeguards. Direct appeals were made to the Planning Director, Mayor and Council. The suit states city officials knew – or should have known – the risk of landslides, steep slopes failures, erosion and flooding posed by the Fairhaven Highlands project exceeded any reasonably acceptable level. Enforcement of the Critical Areas Ordinance was required to mitigate these risks.

The lawsuit further claims that public access to elected representatives – a cornerstone of all democracies - was illegally denied based on an erroneous interpretation of the appearance of fairness doctrine.

The trial is set to begin next week.

Author’s note

:
This article, about a potential future event, has been written with the hope that city officials will take appropriate action now to prevent the incident depicted, as well as potential lawsuits. This article represents a last-ditch effort as all other options have already been exhausted.

About Larry Horowitz

Posting Citizen Journalist • Member since Jan 16, 2008

Comments by Readers

John Erickson

Dec 04, 2009

This possible event is scary and not just because of the recent landslides. We all should know by now that the chuckanut area is geologically unstable. To put people in harms way for profit and greed is at best immoral. Will we as citizens allow ourselves to be financially responsible for the shortsighted profits of a few. I hope and pray not. Larry makes a valid point with his fictional story, our city leaders and planners should take heed.

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Tip Johnson

Dec 04, 2009

Some years ago, when I was still on the City Council, there was a problem on Willow Court N.  The hill to the north was being disturbed as they tried to carve out a bench for another home.  A little rain came and mud and vegetation slid down the hill, across the road and up against the houses across the street.  Well, of course they cleaned it up, but they kept right on digging, despite complaints and urging the City to intervene. A bit more rain and it happened again.  Still no results from the City.  Of course, they cleaned it up, but they went right on digging.

As the representative for the area, I was swarmed with calls of concern.  I got into my Datsun 510 wagon, drove down there, parked blocking the trucks into the cul de sac, and waited for the police to arrive. The truckers offered to beat me up.  The police offered to arrest me.  I agreed that would be fine, but asked to see their grading permit first.  Turns out they didn’t have one, so I got a pass from the cops.

These slopes, right across the street from Fairhaven Highlands are no steeper than those on the project site.  The regrades proposed for the project are much, much more extreme.  You paint a picture that many might consider over exaggerated, but ask the residents on Willow Court how they felt when they couldn’t open their front doors and had to look up at the remaining hillside and wonder if it was coming down, too.

Add a little earthquake to heavy rains and a stormwater plan designed to supersaturate slopes with surface discharge.  It’s definitely asking for trouble.

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Larry Horowitz

Dec 04, 2009

Thanks for the history lesson, Tip.

Honestly, is it too much to ask city officials to simply enforce a law passed more than 4 years ago?

The old law is obsolete and is based on outdated science.  The CAO itself doesn?t quite meet the requirements for best available science, but it?s certainly more effective at preventing environmental catastrophes - like landslides.

Government?s primary role is to protect public safety, health and welfare. 

Is protecting the safety of those who live downhill from Chuckanut Ridge ? by simply enforcing a 4-year old law -  too much to ask?

Are taxpayers willing to take on the financial responsibility associated with negligence?

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Christopher Grannis

Dec 06, 2009

The folks most at risk live in the manufactured home park on Robin Lane and the modest houses on Iris Lane between Chuckanut Drive and the steep west slope of Chuckanut Ridge. Run off from the slope drains to a ditch between Robin Lane and Iris lane. Development on the hillside above is a recipe for disaster.

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Larry Horowitz

Dec 06, 2009

Christopher,

I agree that the risk from surface water is greatest for the families living on Robin Ln and Iris Ln; however, the risk from subsurface water is probably greatest for those who live on Viewcrest Rd, Sea Pines Ln, and Sea Pines Rd where houses are built at the top of, or on, fairly steep slopes.  I believe gravity will exert its greatest influence here. 

Fortunately, for residents of Robin and Iris Lanes, surface water is easily detected.  Unfortunately, the residents of Viewcrest and Sea Pines will never know what hit them.

The Draft EIS totally ignored the impact of subsurface flows on the Viewcrest hillside facing Chuckanut Bay.  In the middle picture above, the houses whose foundations gave way were likely victims of subsurface, rather than surface, flows.

All residents must be protected, whether they reside on Robin Ln, Iris Ln, Viewcrest Rd, Sea Pines Ln, Sea Pines Rd ? or any other road surrounding Chuckanut Ridge.

The question is ? who will step forward and protect the public safety and welfare?  Who will enforce the CAO?

So far, no one who asked been asked to do so has been up to the task.

Michael?  Seth?  Are you prepared to take this on?

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Steve Wilson

Dec 07, 2009

Larry,

Thanks for your continued diligence in keeping us on the ball.  Here’s my question.  After reading the comments submitted for the DEIS I would like to hear your take on those of the State Dept. of Ecology.  Here’s my paraphrasing of their comments…‘while the City of Bellingham may not hold the developers to the current CAO (for whatever reason) the Dept. of Ecology WILL hold this up to the light of best available science’.
That seems pretty direct to me.  Am I missing something here?

steve

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Larry Horowitz

Dec 07, 2009

Steve,

Thanks for your kind words and for your question.

As you observed, the Dept of Ecology comment letter on the Draft EIS basically advises the developer to submit an alternative that would avoid Category I wetland and buffer impacts based on best available science ?in order to avoid future costly delays during state and federal permitting.?  In other words, if you want a permit, you better comply with state and federal wetland and buffer requirements based on best available science.

Ecology?s letter also confirms what I wrote about in my Oct 18 article, ?Why the Fairhaven Highlands Draft EIS violates SEPA law.?  SEPA requires the EIS to disclose significant impacts based on current scientific knowledge; however, the Fairhaven Highlands DEIS only discloses wetland impacts based on an outdated and obsolete law. 

Ecology?s letter confirms that the city?s 1991 Wetland & Stream Regs do not represent current science and states, ?Taking best available science into consideration, all of the action alternatives would cause far greater indirect impacts to wetlands and direct impacts to their buffers than indicated in the DEIS.?  In other words, the DEIS illegally understates these impacts.  By doing so, it violates SEPA law.

Links to Ecology?s letter and my Oct 18 article are provided above, just below the third photo depicting the rockslide on Chuckanut Drive.

Steve, perhaps you can answer these questions for me:

Because the Critical Areas Ordinance (CAO) is specifically designed to protect the community from injury, loss of life, and property damage caused by environmental catastrophes (landslides, flooding, etc.), isn?t the CAO a public safety regulation?

Since WA case law is pretty clear, that vesting does not apply to public safety regulations, isn?t it obvious that vesting does not apply to the CAO?  And, that the CAO must be enforced?

Ignoring the law for a moment, isn?t it obvious that wherever perched water and steep slopes are found together, the risk of flooding, erosion, steep slope failure and landslides are substantially increased?

Is it conceivable that city officials can ignore the only city law specifically designed to prevent flooding, erosion, steep slope failure, and landslides, approve a high impact development like Fairhaven Highlands on a perched wetland surrounded by landslide and erosion prone slopes, and not expect a tragedy to occur?

Is it conceivable that property damage and injuries will not result?  That residents won?t sue the city for negligence?

Decisions always involve small mistakes and big mistakes.  When it comes to Fairhaven Highlands, failure to enforce the CAO and placing public safety at risk is the BIG mistake.  Everything else is small by comparison.

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Steve Wilson

Dec 08, 2009

Larry,

In response to your questions, I would have to agree with your impeccable logic. 
Similarly, militarism is the greatest threat to peace, and carrying a weapon puts one at greater risk of violence,yet governments and citizens continue to defy logic.
My point is that the only behavior we seem to be able to change is our own.  Sadly, I doubt that we are going to see the city change their behavior on this point.  However, citizens have done a very good job of letting the city know where we stand in relation to this improper development at Chuckanut Ridge.  I am confident that sanity will prevail.
Thanks again for asking the difficult questions all along.

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Larry Horowitz

Dec 08, 2009

Steve,

I agree: The only behavior we can change is our own.  However, that does not mean that political leaders cannot ? and do not - change their minds.  Doesn?t history confirm that political leaders routinely change their minds?

In Bellingham, hasn?t it been our experience that Council members regularly adjust to various pressures - from the electorate; from financial supporters; and from the threat of legal action?  What if the pressure came from all three?

Consider this: 

What would happen if everyone who was concerned about erosion, flooding, landslides, and steep slope failures that would result from the Fairhaven Highlands development contacted each member confirming that, if Council did not enforce the CAO:

1) They would never again vote for that Council member;
2) They would never again provide financial support for that Council member; and
3) They would sue the city for negligence and financial damage when their homes are damaged or their families suffer harm?

Do you honestly believe Council might not ?adjust? to that pressure?

What if everyone contacted the Mayor?

As you suggested, perhaps what we need to change is our own behavior. 

Perhaps - if we want city officials to change their minds - we need to change how we approach the city.

Are we willing to do that?

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