Note: See Pandemic Mode
Click here for the Save the Trails Referendum Page with summary and instructions.
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. (EDIT 7/31/21) 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. Anyone can sign this advisory petition. Please also download a paper copy (linked below), sign and return. because we don't know if online signatures will be accepted! Only the paper petitions are valid legal documents and only registered city voters may sign. (END EDIT) 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.)
Comments by Readers
Michael Lilliquist
Jul 28, 2021The 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 https://mrsc.org/Home/Stay-Informed/MRSC-Insight/January-2014/What-is-the-Nature-of-a-Public-Right-of-Way.aspx
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, 2021I 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.
Michael Lilliquist
Jul 28, 2021Tip 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, 2021Yes, 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, 2021I 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, 2021Margo, 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, 2021Thanks so much, Tip. Now I understand!
M
Jon Humphrey
Jul 28, 2021God 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.
Daniel Kirkpatrick
Jul 29, 2021Michael, I’m disappointed that you don’t have the neighborhood’s back on this. And I’m puzzled by the odd logic of your arguments, that to me make you sound disingenuous.
The argument about the paved street is a red herring. Nobody is promoting such an idea. Why even mention it?
The argument about ROW land technically belonging to the adjacent landowner is accurate but misleading.
To be succinct, there are two key issues at play here. One is that existing City law prohibits vacating a ROW that is currently in use for public access. (Here meaning a trail that a bunch of us neighbors built back in 1993.) You and everyone at Planning and Public Works—and the Hearing Examiner’s Office—should know this, yet you seem willing to look the other way to benefit a developer.
The other is that the density increase that is driving this ROW vacation has absolutely nothing to do with affordable housing, only supply and demand. And if you think supply and demand will make homes affordable, you’re even farther afield than I thought.
My sincere hope is that your failure to stand up for Happy Valley (and the law) on this issue will not result in the sale of this or any other ROWs to developers. I for one will work to try and correct this unfortunate Council action. But that’s not the position I wanted to be in when I voted for you.
Dana Briggs
Jul 30, 2021As someone who does not follow or necessarily understand the esoteric aspects of land use policy and the technicalities, if it is a choice between the commons (public) v. the private, I will defer to the commons and have signed the petition. One of the many facets of why we are in the climate / environmental crisis we are in, is because of the near exclusive “rights” of the private, no matter how detrimental. Enough.
Alex McLean
Jul 30, 2021The City of Bellingham, both the staff and elected representatives, has a wildly dysfunctional set of policy directives, perverse philosophies, and generalized lopsided bias—all rooted in crappy legal advice—that guides their thoughts about ROWs.
Incessantly, over and over, our leadership is claiming “we don’t own these tracts.”
They use this foil, as Michael Lillequist does above, as though they are totally powerless to do anything whatsoever other than to sell them off to developers.
That is distinctly and completely false—The City has “broad authority” to do damn near anything they want with these easements in Washington State—they can install trails, improve and restore habitat, convert them to public parks, gardens, or whatever, if they desire.
What they are doing instead borders on criminal negligence.
Public Works apparently has a standing policy, for example, to NOT do basic maintenance on unimproved ROWs: They actively encourage rabid infestations of invasive species through enforced neglect. If citizens want to clean them up, get them more functional with a trail or through planting native species, it either takes 50 e-mails and six months of badgering or it is bluntly greeted by their goddamn lawyers telling citizens to not touch the parcels.
They want them to rot.
Then they want them sold.
What they emphatically DON’T want is to use these easements for the one primary function that the State has repeatedly said they exist for: transportation.
It is small wonder that nobody at the City knew or cared about the decades-old trail that existed on Douglas Avenue since, realistically, Public Works refuses to acknowledge that they can, should, and absolutely do have authority to put trails through these easements.
They know, however, that as soon as they do put a trail through that the status and protection of that ROW changes ... so they keep them in perpetual blight ... until they can sell them.
I can’t comprehend a more pathetic and irresponsible approach to preserving and retaining public assets than the City’s current one. It is dangerously shortsighted and lazy, to the point of degeneracy, for them to keep this ritual when, pretty obviously, it goes directly against multiple codified goals (Greenways, Bicycle/Pedestrian Master Plans, good urban design, habitat protection, the Urban Forest Plan, etc., etc.) in favor of a idiotically myopic fixation with increasing density at all costs.
This is from the same article that Michael shared, above.
“If the right-of-way has not been opened and so is not improved, obstruction of public travel is, of course, not an issue, and the property owner is not subject to the same restrictions as when it is open and improved. Typically, property owners can use the unopened, unimproved right-of-way as they can the rest of their property, but subject to the possibility of it being opened and improved at some point in the future.”
Tip Johnson
Jul 31, 2021A little Saturday morning hobby time:
Michael Lilliquist, candidate for re-election to represent this area, states in his comments above that “No numbers regarding density were changed”, and that my assertion that the vacation serves to transfer density “…is not true”. I would call his attention to excerpts from the Hearing examiner’s record for the case.
HE-20-PL-016 Attachment J - Supplemental Narrative for proposed Douglas Avenue Street Vacation
https://bit.ly/3lgfe5e
“The addition of the right of way to the adjacent property will increase the density available to the property, allowing more units to be constructed on the site.”
“If ramping is provided to the site within the vacated right of way, then additional parking can be provided in a lower level parking facility, facilitating the additional density that is proposed and a broader unit mix.”
“…the property owner can benefit from additional density, space to build infrastructure to support parking…”
“It will facilitate additional density on an infill parcel within the Happy Valley Neighborhood.”
“The City Council has indicated that we should “leave no stone unturned” in our effort to find innovative ways to accommodate density, infill and to provide housing options.”
“…the property owner benefits from the ability to provide additional density and facilitate compliance with development regulations such as parking…”
Michael appears to believe that the vacation is consistent with City Policies, yet…
The Hearing Examiner’s Recommendation (https://bit.ly/3yi4ozs) states,
“The Hearing Examiner does not make a recommendation for approval…”
“The Examiner declines to make a recommendation on vacation Policies 1, 2, 5, 9, and 11”
A majority of the Council didn’t care about errors in the Hearing Examiner’s
The Hearing Examiner’s Findings
- Refer to the “unimproved Douglas Avenue” as an “unopened right-of-way” even though it is fully encumbered with public utilities and hosts the 26 year old trail.
- Refer to “An existing informal pedestrian trail” even though the trail is shown on the City’s Official Trail Guide.
Or have problems with
- The Applicant not being able to say “…whether this open space would be fenced off…for private use…”
- That, “The remand staff report contains erroneous citations…” that created an,”…additional layer of error (that) posed yet another obstacle to meaningful participation…”
And approved the vacation despite
The Hearing Examiner’s Conclusions that
- “All (vacation) policies should be met prior to the vacation of a right of way”
- 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.”
- 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.”
- 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…”
And now the City appears to be digging in.
City Attorney Marriner writes, “It is unclear whether a referendum petition can be used to reverse a City Council decision to approve a street vacation made at a closed record hearing. Second, it is unclear whether a referendum petition filed after the street vacation ordinance is recorded with the Whatcom County Auditor can reverse the street vacation.’
This in spite of the Bellingham City Charter at 10.08 guaranteeing, “The second power reserved by the people is the simple referendum which may be exercised and ordered as to any ordinance which has passed the City Council and the Mayor, or which has been passed over the Mayor’s veto”, and ‘The fact that the ordinance is already in effect shall not bar the referendum procedure.”
https://bellingham.municipal.codes/Charter/10.08
Alex McLean
Aug 02, 2021It was a default up-zone through a dodgy and intentionally non-transparent “process.” The City and the public got nothing for it, other than a paltry $18,000 that will not even cover the cost of using the Hearing Examiner, and there appears to be no documentation anywhere at all to prove that this formerly public trail is not forevermore subject to the whimsy of the private property owner who scurried away with it while gaining untold millions by being allowed to build 7-10 more units.
It is private property now. The developer can do whatever they want since the City ceded all the leverage they might have had by immediately and vigorously, and illegally, giving away their “broad authority” to protect the trail through vacating the full width of the ROW.
“What the vacation accomplishes is the extinguishment of the right-of-way easement. Thus, one of the statutes governing street vacations, RCW 35.79.040 says, “If any street or alley in any city or town is vacated by the city or town council, the property within the limits so vacated shall belong to the abutting property owners ...”” (Also from the article Michael shared, above.)
That, and a laundry list of other really valid complaints, is why people are rightfully pissed off about how the City is currently liquidating it’s “unimproved” ROWs, whether they have an existing trail on them, or not.
I’m awaiting even a single document that says otherwise—as near as I can tell, every assurance and claim that Michael or the City has offered does not exist anywhere on paper: In their eagerness to mollycoddle the developer, they just assume that a trail will be rebuilt and went with a handshake and a wink while the neighborhood was told to go pound rocks.
David A. Swanson
Aug 02, 2021Hr. Lilliquist
Kommer ihåg att det är inte alltid sant att det är bättre att ha det inne än ute. Jag tror att Hr. Knutson förstått situationen i detta fall och han görde det rätta.
Respectfult
David Swanson