City Throws Down the Gauntlet

Note: See Pandemic Mode

*UPDATE* 8/14/21 - Mayor Seth Fleetwood failed to exercise a veto on behalf of the neighborhood,  The Save the Trails Referendum page with a summary and instructions can be found here.

ALERT: The Douglas Avenue Trail - A Referendum to Preserve Public Rights & Save the Trails
The gauntlet has been thrown. The walkability of our neighborhoods is under threat. The City will now officially go to great lengths to abandon public right-of-ways (ROW) in order to transfer density to private developers -  even when in use and without following city policies.

This sets a dangerous precedent for every neighborhood in Bellingham. In the City's quest for “densification,” the smattering of ROWs that dot our neighborhoods will become an increasingly valuable resource for livability - if we can save them. But we better act now.

The Douglas Avenue trail was built 26 years ago under a city program called, “Make a Difference Day.”  It appears on the Official City Trail Guide. The trail is on the Douglas Avenue ROW west of 21st Street. It heads up the hill, with territorial views, to the S.P.I.E. property with fantastic Chuckanut views, and on to South Hill neighborhood for sunset views of the bay and islands.  

Now we must act to save it.

If you already know about this, skip down to What can I do?

What's here:
1) The Boring Details
2) Insult to Injury
3) The Mayor Stalls
4) What can I do?
5) Read more about it
6) Draft Statement for the Mayor’s Veto
7) Injunctive Relief?
8) The Scheme to Turn Green-Spaces into $Green

1) The Boring Details
In February of 2020, an adjoining property owner applied to vacate the ROW. This asks the City to abandon our public rights. Staff and the applicant’s consultant - then recently the Chair of the Planning Commission - brought the request forward pretending they didn’t know there was already a public trail - even though they came prepared with an engineering drawing of concrete stairs to replace it. 

The matter was subject to a public hearing before the hearing examiner (HE) on July 8, 2020, and neighbors were quick to point out the trail’s storied history, the posting of public notice hidden behind dumpsters in the alley, and the sketchy notice mailed to the vicinity residents. Nevertheless, the HE recommended approval of the vacation.

It was considered by City Council on December 7, 2020 and remanded back to the HE for further review.  

The HE held another public hearing on March 10, 2021 and withdrew the earlier recommendation, declining to make a determination as to compliance with 5 of 11 City vacation policies - all of which must supposedly be met.

The council considered the matter again on July 27, 2021 and approved abandoning the public’s right on the trail.
(End Boring Details, hopefully)  

2) Insult to Injury
Walkability, off-road bicycle links, habitat, and open space used to be priorities in Bellingham. Now it is density at any cost.

But the principal insult is that they waited  from March to the middle of summer vacation to act, when the pandemic was surging with a new variant. They had been warned a referendum would result, and chose the optimal time to proceed - when everyone is on vacation, hosting visitors, visiting family, considering school, and planning their response to the worsening pandemic.

3) The Mayor Stalls
Folks were quick to ask the mayor for a veto. Citizens held off launching the referendum as a courtesy, in hopes their mayor would act to protect their public rights. He was, after all, elected as our hero for the environment. Instead, he stalled.

On July 27th, he replied to a direct question about a veto, “Always happy to chat. Let’s find a time. Next week better…”

The following week, in replied to a renewed query, “As I said, I am happy to discuss. Would you like to meet?” Then the next day, “There are some questions I would like to ask (staff)… Can it wait till first of the (next) week?”

The first of the next week, today, rolls around, and no Seth.  No mayor. Nada. City attorneys are meanwhile giving conflicting and confusing information. Every indication is that City Hall is charging ahead to steal our duly exercised public rights to give extra density to a project, for a measly $18,000 dollars.

4) What can I do?
You can write or call the mayor’s office: mayorsoffice@cob.org, (360) 778-8100.  But tomorrow, August 10th is his last day to veto.

Anyone can sign an advisory petition here. Anyone can sign, but it won’t count legally.

The legal petition is here.  Only registered city voters will be counted. 2,475 are needed in only 30 days.  Instructions to obtain printed copies or return signed petitions are included.

Spread the word. Share the links. Connect to groups. Show your power.  

5) Read more about it
Dirty Deal at Douglas and 21st
The Douglas Avenue Trail
Will City Double-Down to Kill Public Trail?
Mayor Is Asked To Preserve Trail
Our Public Property Rights For Sale - Cheap!
The Scheme to Turn Green-Spaces into $Green

There are additional links to source documents in these previous articles.

6) Draft Statement for the Mayor’s Veto
We prepared a draft statement for the mayor to consider for a veto. We thought it made a compelling argument. We hope you will agree. The mayor apparently didn't.

“The Hearing Examiner (HE) originally recommended approval of this vacation request.  The Council remanded it for further review, upon which the HE withdrew the original recommendation, leaving it for the Council to decide.

“It is not clear to me that Council’s decision to approve adequately considered several factors.

“To begin with, the HE’s Findings contain significant errors of fact.  

“The HE Findings refer to the ROW as “unimproved” and “unopened”.  This is not accurate.  The ROW has long been fully encumbered with both public and private utilities, and a public way has existed there for 26 years.

“The HE Findings refer to this public way as ““An existing informal pedestrian trail” even though the trail was built with City approval and appears on the City’s Official Trail Guide.

“The HE’s remand report specifically “does not make a recommendation for approval” and “declines to make a recommendation on vacation policies 1, 2, 5, 9, and 11”. However, the HE’s Conclusions note (consistent with City vacation policies) that “All (vacation) policies should be met prior to the vacation of a right of way”. This is certainly not true in this case, as the Hearing Examiner notes for almost half our adopted vacation policies.

“The HE concludes that it is up to "the Council to finally conclude whether the project can be found to be in the public good in the face of such public opposition.” The sheer extent of public opposition, and the request’s failure to meet so many vacation policies, strongly suggest this vacation does not meet the public good test.

“The HE also concludes that “Given the ample evidence of a pedestrian use and public interest in such use, a strict reading of vacation Policy 2 could arguably require automatic denial of the application.”  Not only is this true, but since the trail has been in use for so long, the public could claim a prescriptive easement even were the trail not on an existing ROW.

“In conclusion, the HE  further regrets the “..worst case “perfect storm”-style scenarios in which all that could go wrong, did go wrong, detracting from the public trust…” and that, “…the process encountered…many flaws…leading to public distrust…”.  By all accounts, the process was deeply flawed and offensive to the neighborhood. We have to do better.

“Finally, I would note that in the Applicant’s testimony on remand, they were unable to guarantee that the vacated ROW would not be subject to being fenced for private use.  This could put the trail in a chain link cage, and that is unacceptable.

“We have been down this road before, at Hong’s Pond, where a successful referendum on a similar vacation request likely saved the public $1 million dollars in Greenways acquisition costs.  While the end result was good, the process proved harmful to the public’s good will and trust in their government.

“After all the work citizens did to build this trail, and all the flaws in the procedure of this vacation request, I am unwilling to once again place the burden of doing the right thing on the backs of our citizens.  It is August and we should all be enjoying the last of our summer, not forcing our constituents to fight City Hall.

“For these reasons, I will veto the approval of this vacation request, and I hope you will agree that in this case the public good is best served by retaining the public’s rights over the existing public trail.”

It all fell on our environmental hero's deaf ears.

7) Injunctive Relief?
You can see we really tried. For 26 years. They just didn't care. It was a dirty inside deal from the start. We believe the City Hall's action is inconsistent with their own policies, and possibly illegal.  If you are or know an attorney willing to take on City Hall to protect public rights,  please let me know: tipj@nwhouse.com.

Meanwhile, the citizen's last resort is the right to direct democracy reserved in the City Charter: The right of Referendum.  Put it on the ballot and let the people decide.

Game on!  Let's change the way the city looks at our public property rights.

PS - I am happy to eat a plate of crow on Seth Fleetwood 's behalf if he throws down the 11th hour veto!