The Elusive Truth About Chuckanut Ridge/Fairhaven Highlands

Sat, Dec 05, 2009, 7:00 am  //  Tip Johnson

I always hate public issues that involve decades of history and require integration of multiple points. I refer to it as 'the indignity of explanation.' Public interest advocates gain nothing easily when unconcerned officials and interested parties merely listen patiently and do nothing. But here we go again.

Citizens dismayed with the irresponsible behavior of City of Bellingham officials over the years regarding the monstrous development proposed by the endangered Horizon Bank may now have a glimmer of hope, or two. Hope has been difficult to sustain amidst the apparent corruption that has followed this bizarre case of fraudulent entitlements.

First came consolidation of the property under a blind Delaware corporation, West Eden Development, officed in Lynden. Confidential statements from interviews while researching the history have alluded to the involvement of local elected officials of the time. Neither the State of Delaware nor the registered agent for the now defunct corporation (still owing back taxes) will comment on the corporate principals. A subpoena pursuant to a criminal investigation is required to obtain any information about corporations in Delaware.

Preceding this, a well known elected official with insider information on the proposed alignment of Valley Parkway had consolidated land along the route of what is now Old Fairhaven Parkway, an extension of State Route 11 - Chuckanut Drive. He did very well for himself with those investments. Some have speculated that anyone - say sitting on the Legislature's transportation committee and having already exploited the highway route - would have perfect knowledge of the inadequacies of the Chuckanut Drive bridge over Padden Creek and thoroughly understand the desirability of a highway diversion through the Fairhaven Highlands property. On a map of the time, it must have looked perfect. But I'll bet no one walked the property. They would have needed good galoshes!

On the heels of the property consolidation came the phony rezone in 1981, wherein the Chuckanut Drive diversion, or improvements to the bridge, became "prerequisite conditions" for development. The density was given to make those improvements economically feasible during development. This is not a valid basis for zoning, and occurred without the procedure common to major rezones, much less highway revisions. It was later described by former senior city planner, Chris Spens, as a "mystery at best." The corrollary question follows: What might it be at its worst?

Immediately upon adoption of the zoning, the property was sold to a local developer and the Delaware corporation abandoned. When the first iteration of the project appeared in 1995, the absurdity led it to become the poster child for our Greenways levy. The levy passed but acquisition never occurred. Citizen outrage should rightly have led to a reexamination of the zoning, but the city never took action. For a variety of reasons, the proposal died enroute to its permits and re-submerged, creating a measure of complacency among citizens and officials alike.

Along the way, then-mayor Mark Asmundson, took it upon himself to administratively adjust the project density through a Memorandum of Agreement with the owner. This occurred concomitant with a conveyance/reconveyance scheme that moved the site's largest wetlands into city ownership via the Whatcom County Land Trust, resulting in a multi-million dollar tax benefit to the owner. Even though the number of units was reduced, the method also avoided the comprehensive review and public participation normally required for zoning. The Growth Management Hearings Board has ruled this procedure improper. This is the so-called zoning in effect today.

Meanwhile, everyone was learning more about how important wetlands are to the health of Puget Sound. More stringent critical areas regulations were being drafted and discussed. This and other Growth Management issues boggled the city long enough that the State threatened the city with sanctions if a new comprehensive plan was not adopted.

On the very eve of adopting new critical areas regulations based upon best science, the disastrous proposal was resubmitted. It was a hasty proposal, full of defects and lacking crucial elements. It was nevertheless somehow determined to be "substantially complete" by city planners within a few days of receipt. At that time, the project lead for the Planning Department was married to a construction manager employed by the developer. The city's most immediate prior determination of completeness was for a small addition to an existing South Hill home and took six months. Yet the largest development proposal in Bellingham's history, proposed in one of the most sensitive wetland areas in the city, already subject to controversy years earlier, happened in only days. Citizens filed an appeal which the city rejected. The proponent asserted that this tricky move had "vested" their rights under the old regulations. Now, the newly released Draft Environmental Impact Statement (DEIS) recommends newer alternatives by detailing the deficiencies of the original application. How could it have been complete?

Finally comes the debacle of possibly the worst impact statement ever written. After selecting the proponent's preferred consultant at half the projected cost of the next nearest bid, planners joined with the developer to devise a set of several alternatives with mainly insignificant differences. Not one fully complies with the prerequisite conditions or even the outdated wetland regulations. Virtually every citizen scoping request was ignored to produce a shamefully deficient document that bends over backward to meet the proponent's objectives and hides the extent of impacts amidst a welter of meaningless miscellany - the proverbial needle in a haystack. Citizens were given three weeks to read over 500 pages of obfuscation, subterfuge and outright dissemblance. Impact statements are legally required to be "concise" and usually limited to 150 pages. Not this one.

This is occurring under the direction of Bellingham Planning Director, Tim Stewart, at a time when citizens are learning he is no stranger to such controversy, and is unafraid to ride roughshod over citizens or the environment to accommodate large developments. Stewart's arrival in Bellingham was preceded by a scandal in nearby Shoreline involving a large corporate development and another salmon stream. According to reports, Stewart changed regulations, recommended variances and falsified an affidavit in order to assist in the approval of a project largely within protected wetland buffers along Thornton Creek. A now famous documentary, "Up Thornton Creek" details Stewart's adroit rule changing and application management, demonstrating his predilection for private property values over environmental or community values. Citizens were sued for slander and the City even threatened the homes of vocal activists. See for yourself (25 minute video).

The video: Up Thornton Creek

So what about the hope? Well, one glimmer is that the bank is teetering on the brink of ruin and probably can't develop the proposal. Also, the FDIC has enjoined them from participation in multiple-family housing development. They could probably figure a creative way to pass the multi-unit portion of the project on to their construction partner. More likely, they will try to sell it once the permits are in place, much the way the blind Delaware corporation sold it as soon as the zoning was in place. However, this is a difficult project. It is mired in controversy and could be a difficult sell under the assumptions of the past. Environmental constraints loom large for the project as proposed, but it may be feasible to build some number of homes, particularly in the southwest quadrant. This is a flickering glimmer with risks.

The brightest glimmer for citizens, and their best hope lies, ironically, with the Draft Environmental Impact Statement. As poorly written, badly organized, pointedly biased and incompetent as it proves under analysis, it does irrefutably accomplish one very important milestone: it establishes the utter absurdity of this scale of project in this location. Even varnished with the proponent's best finish - literally plastered with lipstick - it is obviously, categorically, an impossible, ruinous project. Steep slopes are to be blasted away. Roads on twenty foot fills with retaining walls are required to access the property. Wetlands are proposed to be filled and buffers violated. Stormwater will be piped to flood the forest floor, weakening trees and altering hydrology in critical wetlands. The project will use public resources, full of salmon and freshwater shrimp, as a storm sewer - utilizing technology already proven inadequate.

Remember Mayor Asmundson administratively negotiating the current density by contract with the owner? O.K., that's not a proper method of zoning and is likely itself subject to challenge. But the main point is that the density was reduced by half. Think of it! If the project looks stupidly impossible now, just imagine it at twice the density! The DEIS unequivocally establishes that a zoning error occurred in 1981. No one could possibly have evaluated the actual property, much less considered the policy framework of the city and neighborhood, to conclude this level of density meets the public's interests or is in any way appropriate within this sensitive environmental feature. That review, normally required for zoning, has never been done.

Now the developer is even trying to welsh on the prerequisite conditions. In a last minute comment on the DEIS, they have asserted that their "scientific traffic study determines that neither the connector nor the widening of the bridge is necessary," that "not only does the Director have authority to determine that the prerequisite conditions are inapplicable to the development," but that "he also can only impose the conditions if they are found to be commensurate with the impacts." In a masterful grab, they complain that "the prerequisite conditions were imposed without the benefit of a transportation study," but seem singularly unconcerned that the zoning was similarly imposed, along with the prerequisite conditions, also without benefit of study. In fact, the record reflects the city's interest in achieving the prerequisite conditions was the only basis for the zoning.

So whose job is it to correct zoning errors, to adopt zoning in the best interests of the community as a whole, and to adequately condition new developments consistent with those interests? The City Council - not the Mayor or the Planning Department - is statutorily responsible. One problem is that over the years, the Council has delegated much of their authority to the Planning Director and Hearing Examiner. This has streamlined the review process and allowed Council to focus on policy issues, but has also somewhat limited citizen access to elected officials for relief from nonsense like this proposal. Nevertheless, the ultimate authority remains the Council's.

But can citizens, having battled this scourge since 1995, rely on the Council for help? How can citizens escape the dilemma of either subsidizing a failing bank with millions toward an outrageously inflated purchase price, or subsidizing the development with millions in public services, infrastructure, lost opportunity, destroyed resources and degraded quality of life? Past efforts have fallen upon deaf ears.

The DEIS, perhaps unintentionally, has finally zeroed in on a set of serious policy issues for which the Council is the only legitimate venue. Public comments have intentionally added a laser quality to this focus. Combined with concerns over potential bias from the Planning Director, Council's attention is ever more appropriate. Remarkably, even the developer has asked that testimony regarding "the sequence of events which produced the now nearly 30-year old comprehensive plan and zoning" should be "verified for accuracy as well as relevancy." I agree. The preposterous level of damage this project could inflict argues strongly in favor of such a review. The developer even offers to help. No thanks. The Council is the only body capable of adequately representing citizens' interests in this review.

The Council would do city taxpayers a valuable service by assuring development is not based on planning errors, that zoning is consistent with the city's overall policy framework and not a real estate game designed to enrich a few at a cost to all. Now that the developer has made it clear they will oppose the prerequisite conditions, what on earth has the city to gain from this development? It has become a classic bait and switch, a quid sans quo, but one with enormous risks to the community and environment.

The truth is that this has never been a rational development proposal founded in comprehensive planning designed to benefit and improve the community. History suggests and the DEIS proves: It's something much worse. Turning a blind eye and pretending to follow normal procedure is simply not enough. It's time again we asked our elected representatives to please help.


A Thornton Creek news archive (hyperlinks unverified)

Related NWCitizen article

The DEIS

Public Comments on the DEIS

An example of public comments, including my own, a great analysis by Dr. David Hooper and Robin du Pré from ReSources, among others.