To vest or not to vest: Chuckanut Ridge & the CAO

After an extended hiatus, the battle over Chuckanut Ridge has begun to heat up again. In one corner: landowners Horizon Bank and David Edelstein. In the other corner: thousands of local residents from Bellingham, Whatcom County and Skagit County and organizations that represent them, including Responsible Development, 1000 Friends of Chuckanut Ridge, and the Coalition of Southside Neighborhoods (consisting of the Edgemoor, Fairhaven, Happy Valley, South and South Hill neighborhoods). The referee: the City of Bellingham. The prize: an environmentally significant 85-acre urban forest, mature forested wetland ecosystem, and fragile wildlife and salmon habitat bordered by Chuckanut Drive, Fairhaven Park and the Interurban Trail.

Since first applying for permits to build the massive 739-unit Fairhaven Highlands development on Chuckanut Ridge in April 2005, Horizon Bank and Edelstein placed their application on hold until February 2007 when they consented to the preparation of an Environmental Impact Statement (EIS). The battle restarted in earnest last month when the city held a public hearing on the scope of the EIS. During the 4-hour hearing, which was attended by more than 250 citizens, every person who testified spoke against the development. Not a single person testified in favor of it.

A key issue, in terms of permitting as well as the EIS process, is the vesting status of the Fairhaven Highlands applications and the determination as to which laws will apply. If vested, the Fairhaven Highlands applications will be regulated by laws in place at the time the applications were submitted. If not vested, the Fairhaven Highlands applications will be regulated by current laws. In terms of this development, the key element is the adoption of Bellingham’s Critical Areas Ordinance (CAO) in December 2005, just three days after the Fairhaven Highlands Wetland & Stream application was submitted.

There is a common misunderstanding that an application is vested if the application is determined to be complete. In fact, according to the Washington State Vested Rights Doctrine, an application is vested only if it meets the completeness requirement AND it complies with the existing zoning ordinances and building codes in effect at the time the application is submitted.

Notwithstanding the city’s determination that the Fairhaven Highlands applications are complete, there is substantial evidence that these applications and their components are incomplete, incorrect, insufficient, contradictory, or overly vague. In addition, there is substantial evidence that these applications fail to comply with key zoning ordinances and building codes that were in effect when the applications were submitted. Based on evidence summarized in Responsible Development’s January 23, 2008 supplemental comment letter on the scope of the EIS, it is clear that these applications do not meet the requirements established by the state’s Vested Rights Doctrine and are not vested.

What does this mean? Failure to meet the vesting requirements will require the applications to comply with the regulations established by the 2005 Critical Areas Ordinance, which are based on best available science (BAS). These regulations are designed to protect environmentally sensitive and hazardous critical areas such as wetlands, fish & wildlife habitat conservation areas, frequently flooded areas, and erosion and landslide hazard areas. Among the goals the CAO seeks to accomplish are:

• Prevent injury, loss of life or property damage due to landslides and steep slope failures, erosion, seismic events, or flooding; and

• Protect, maintain and restore healthy, functioning ecosystems through the protection of unique, fragile, and valuable elements of the environment, including ground and surface waters, wetlands, fish and wildlife and their habitats; and to conserve the biodiversity of plant and animal species.

In one corner, Horizon Bank and Edelstein are fighting to prevent their Fairhaven Highlands applications from being subject to the CAO and its environmental safeguards designed to protect lives, property, and fragile ecosystems like Chuckanut Ridge.

In the other corner, thousands of local residents are fighting to protect their homes, their families, the unique Chuckanut Ridge Category 1 mature forested wetlands, valuable headwaters to two salmon bearing streams, a keystone wildlife habitat, and a pristine ecosystem.

These fellow citizens are asking for your support. To learn more, please click on the links below.