Opinion for hire: Part 2 - Admission of errors
The consultant working for Horizon Bank & David Edelstein completed her first delineation of the property’s 13 wetlands in October 2005. At that time, she claimed that none met the requirements for Category 1.
Many residents, including those with substantial expertise in this field, quickly notified Bellingham officials that five of these wetlands meet the Category 1 criteria because they are mature forested wetlands larger than an acre, though none were properly identified by Horizon’s consultant.
It should have been obvious to city officials that the Fairhaven Highlands wetland delineation was erroneous. In 1990, the same wetlands were delineated as part of an application for the prior Chuckanut Ridge development. At that time, the four largest wetlands were properly rated Category 1 mature forested wetlands. Since no logging had taken place during the 15 years that elapsed, the existing mature forest had become even more mature by the time Horizon Bank submitted its Fairhaven Highlands application in 2005.
Why didn’t the city recognize this error right away?
Why didn’t the city investigate claims that these errors exist?
In April 2006, the US Army Corps of Engineers confirmed the status of these mature forested wetlands in a letter to the joint venture operated by Horizon Bank and Edelstein, a copy of which was furnished by the Corps to Horizon Bank’s wetland consultant and attorney.
Although we provided a copy of this letter to the city, city officials continued to ignore the obvious. Why?
Since October 2005, Horizon Bank’s consultant has re-rated these 13 wetlands on three separate occasions - in October and December 2008, and again a few days ago, on March 31. In the most recent wetland rating, the consultant corrected her previous error and rated the three largest wetlands Category 1, finally recognizing them as mature forested wetlands. At this time, two mature forested wetlands remain improperly categorized.
One thing is certain: The original wetland delineation was incomplete and erroneous. Even though the Dept of Ecology’s Wetland Rating System and Wetland Rating Form require mature forested wetlands to be identified, Horizon Bank failed to do so. While it has taken 3 ½ years to correct this error for Wetlands CC, KK and JJ, the error remains for Wetlands BB and FF.
Recently, the City’s Certified Arborist prepared a wetland tree survey, which confirmed the existence of trees with sufficiently large diameters to meet the definition of mature forest for Wetlands BB and FF; however, Horizon Bank refuses to recognize these findings.
As mentioned in prior articles, Horizon Bank submitted its wetland application exactly one business day before the City of Bellingham adopted its Critical Areas Ordinance (CAO) and claims that its application is vested and need not comply with the unique public safety protections of the CAO. For now, let’s ignore the irony of a community bank holding its community hostage and willfully violating laws specifically designed to protect the community from “injury, loss of life and property damage due to landslides and steep slope failures, erosion, seismic events, or flooding.” Let’s also ignore the fact that vesting does not apply to regulations governing health and safety. Hey, we’re all friends here, right?
Instead let’s focus on Horizon Bank’s negligence in recognizing the Special Characteristics of five mature forested wetlands and the bank’s failure to rate these wetlands as Category 1. What impact does that have on its vested status? Fortunately, this ground has already been covered in an article I published more than a year ago. (See To vest or not to vest: Chuckanut Ridge & the CAO under Related Links below.)
Essentially, according to the state Supreme Court, the WA state Vested Rights Doctrine “is applicable if the permit application is sufficiently complete, complies with existing zoning ordinances and building codes, and filed during the period the zoning ordinances under which the developer seeks to develop are in effect.” Noble Manor v. Pierce County, 133 Wn.2d 269 (1997)
In other words, an application is only vested if it is both complete and compliant with existing law.
Question 1: Is Horizon Bank’s wetland application complete given it omitted critical information about the 5 mature forested wetlands? Is it complete given it erroneously categorized at least 5 out of 13 wetlands? Is it complete if it ignored the findings of the previous wetland delineation performed in 1990?
Question 2: Does Horizon Bank’s application, which only provides 50’ buffers for all wetlands, comply with existing law that requires 100’ buffers for all Category 1 wetlands?
Question 3: Given that Horizon Bank’s application is neither complete nor legally compliant, is it vested as to the city’s CAO?
Question 4: Is intentionally seeking to avoid the unique safeguards of the CAO, laws specifically designed to protect us from environmental catastrophes, the best way for a community bank to treat its own community?