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Will City Double-Down to Kill Public Trail?

Tip Johnson makes the case that the City’s cozy relations with developers and its neighborhoods-be-damned attitude is costing us all.

Tip Johnson makes the case that the City’s cozy relations with developers and its neighborhoods-be-damned attitude is costing us all.

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• Topics: Bellingham, Planning,

Note: See Pandemic Mode

Somehow an application to abandon the public’s right to a 26-year old trail in Happy Valley got through the Technical Review Committee (TRC), made it to Hearing Examiner Sharon Rice, and was recommended for approval to the City Council. To get there, City investments, documentation, and policies were ignored.

Northwest Citizen has previously reported on this controversy here, and here.

The issue is whether the Douglas Avenue street-right-of-way should be “vacated” between 20th and 21st. Street vacations are not the kind with sunny beaches and gentle waves. Vacating a street or alley means the public cedes their interest in a property, usually to an adjacent property owner. After a street or an alley is vacated, the public no longer has a right to use the property for access. If approved, this vacation would eliminate a public trail and allow the developer to add seven additional units to their previously approved ten.

Traditionally, The TRC convenes to consider street vacations. According to the record, “The TRC is comprised of representatives from the Planning, Public Works, Fire, Parks and Legal Departments.” Usually, this works fine: Planning is about permitting development, Public Works cares about roads and pipes, Fire needs to be able to get there, Parks looks out for public space, and Legal keeps it all straight.

Unfortunately, the TRC letter continues, “The Parks Department did not attend… as they have no trail or park facility plans within the subject right-of-way.” This is not true, but it is a key point in the record.

This public right-of-way features a 26 year old trail, originally sanctioned by the City as a neighborhood improvement project. The trail is included on the official City Trail Guide. It can be seen on Google satellite. Parks and the TRC dropped a significant stitch here. The hearing examiner’s record reports that nobody knew about the trail until the last minute, and then only due to public testimony.

Start of trail at 21st Street. Parks has not maintained trail nor installed a sign. Click to enlarge

Start of trail at 21st Street. Parks has not maintained trail nor installed a sign. Click to enlarge

Planner Steve Sundin hurried in the last hours to raise the issue of the trail. He brought to the hearing a revised ordinance that acknowledged a trail and reserved a narrow corridor for the public along the south edge of the property. Later, he withdrew the revision, rightly advising that it lacked specificity, and asked that it instead be made a condition in the hearing HE’s recommendations. That meant the issue of the trail would need to be considered in more specific terms by the Council. As Hearing Examiner Sharon Rice noted, the decision would thus be “Imposed at a different point in the approval chain.” However, when Rice’s recommendations came to Council, they were sent back for further review.

Although unusual, returning the application to the examiner is appropriate because it affords an opportunity to evaluate what went wrong, and how policies or procedures might be strengthened to better protect public rights, and safeguard against future errors.

For instance, Sundin’s effort did benefit the neighborhood by sending the matter back to the hearing examiner, where revised findings should recommend the vacation be denied. On the other hand, Sundin and the Applicant did some very fast work for parties that didn’t know about the trail. The examiner’s Record of Proceedings shows Sundin saying, “The language (for the narrow corridor)… was reached with some conversation with petitioner’s representative. It was a coordinated effort.” Coincidentally, the petitioner’s representative was Planning Commissioner Ali Taysi, also on record as having no knowledge of the trail, adding, “…the idea… was presented by staff…”. The “idea” was the narrow corridor suitable only for stairs along the south edge of the right-of-way. Miraculously, the Applicant somehow had the foresight to commission, and bring to the hearing, an engineered drawing of a set of stairs, complete with grades, and replete with insert details of City approved standard stair specifications.

And there’s more. The recitation of policies in the hearing examiner’s Findings and Conclusions doesn’t match those in the City’s standard street vacation application, or the framework staff outlined in the Record of Proceedings. The following crucial phrase was omitted from the policy preamble in the Findings, “…and that such vacation advances the public good. All of the following policies should be met prior to the vacation of a right of way.”

The policies were not met. The examiner’s recitation drops policies 1 and 11 entirely, while either significantly rewriting or renumbering the rest. It’s as if there was an entirely different source for the policies in the crafting of these findings.

The Record of Proceedings indicates that staff truly did not know about the trail when writing the narrative about meeting City vacation policies, making many of their responses retrospectively erroneous.

Trail is well used but shows it is not maintained by the city. Click to enlarge.

Trail is well used but shows it is not maintained by the city. Click to enlarge.

There is, in fact, an existing pedestrian trail in this right-of-way — a stated City priority. There is present use and (likely growing) future need. The trail leads variously to a “ …park, open space, view, natural area, (and) other natural or man-made attraction(s)” and therefore “should not be vacated.” I won’t wade through all the policies and staff responses, but I can assert that the TRC’s statement that, “…a demonstration that the applicable vacation policies can be met… has been provided in the project narrative,” is simply not true.

It’s good to have this do-over with the hearing examiner. There is ample opportunity for many to learn a lot, quite a lot. According to City policy and state law, this right-of-way should not even be eligible for vacation. And while the applicant might otherwise enjoy a 70% density increase, what is the cost to our quality of life? Maybe it’s just a “goat trail,” but we like it. We live here. We built it - on our public right-of-way, with City approval. Don’t take that away. Instead, we should be looking at how to prevent such losses and preserve similar opportunities in the future.

Personally, I’d like to know more about the Applicant’s drawing of stairs they didn’t intend to build as an alternative to a trail they didn’t know existed. More generously, I hope we can learn how to better protect the public’s interests, and guard against lapses of institutional memory and the laziness of cozy relations between staff, commissioners, and developers.

So the application now goes back to Hearing Examiner Sharon Rice. If it is sent to the City Council with another recommendation for approval, so be it. Our representatives can deny the request. City policy stipulates that vacation is never mandatory. Should the council approve, citizens can deny, too. The City Charter provides that a couple thousand signatures will abate the decision, referring it to a vote of the people on the next available ballot.

 

This should be a no-brainer. Deny the vacation petition.

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Comments by Readers

Jon Humphrey

Jan 25, 2021

So, in short, the Fleetwood adminstration is making all of the same mistakes that the Linville administration did and putting the interests of a few developers ahead of everything else to produce unaffordable housing. I wonder if that has anything to do with the fact that Seth kept pretty much all of the Linville’s staff. 

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Tim Paxton

Jan 26, 2021

City did the same magic trick on the Right of Ways involved in siting the Options High School next to the dirty industrial zone area.  The ROW with a beautiful trail along side a big grassy area was cancelled along with the ROW of an adjoining road (Franklin Street).  John Servais asked the temporary Hearing Examiner: Have you even ever visited the site?   (Nope).  He was a rubber stamp.  Seems like the same is happening now.

This Happy Valley Trail ROW seems to be a candidate for a simple Prescriptive Easement or Easement by Adverse Possession.  It has the 4 required elements:  Adverse means the user is acting without the consent of the owner, and in conflict with the owner’s property interest. Actual, Open and Notorious. ... Continuous and Uninterrupted. ... Required Period of Time. ...

Q: Can the City even give away a ROW that is under a presumptive/possible/likely prescriptive easement?  Wouild that be acting outside of their legal capacity and subject them to personal law suits?  Can the adjacent land owner even get clear title /financing if this ROW can be claimed for prescriptive easement? 

It seems that no Right of Ways or Trails are now safe in Bellingham.  If a Developer wants it, City Hall will happily sell it to them (for lilkely private cash kick backs.) 

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Drue Robinson

Jan 27, 2021

In full agreement with you, Tip. Wild spaces within the city are a reminder to us to be stewards of the planet. COB needs to get out of the office and roam a bit. Still amazed that south of Padden over here on the other side of Donovan got included in the rezone as “Urban Village.” Seems Sundin is involved with a lot of these developments ... Personally, I think he should be let go - he’s so obviously on the side of developers and bending the rules for expansion — quads and triplexes dumping stormwater into salmon streams, density that decimates old trees and offers parking spaces in return. No wonder long-time citizens of Bellingham are leaving. 

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