Assault

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Sun, Apr 06, 2014, 3:29 pm  //  Guest writer

Approved Site in Wetlands above Hoag's Pond

By Christopher Grannis

Our neighborhood is under assault. There are laws against this assault, but the City Department charged with enforcing the law issues permits for the assault, facilitates the assault, and collects fees from the perpetrator, thereby benefiting from the assault.

This happens all over the City. The victims are neighborhood character, quality of life, property values, and in our case the environment. The perpetrators are probably good people doing what they do to make a living without knowing or without caring about the damage they do. The Department that facilitates the assault is the Planning Department. The Planning Department is staffed by mostly good people doing what they think is right with pressures coming from all directions, especially from the development community. I write this to shed some light on a specific situation with the hope that exposure will prevent or minimize the assault on one of the most ecologically valuable wetlands in the City.

Lind Brothers Construction purchased three lots of record most of which is in those wetlands. They plan to build three houses with three septic systems that would not be allowed under the Critical Areas Ordinance (CAO). This is how it happened.

In December 2005 The CAO, the law passed to protect wetlands and other critical areas, took effect. Within a few days of the law taking effect, there was a flood of applications from developers who wanted to avoid the sometimes costly or prohibitive requirements of the CAO.

The Planning Director of the day ignored the requirement that applications must be substantially complete and accepted the hasty submissions for vesting. Vesting reserves entitlements under existing law, so the Planning Director in effect helped many applications avoid the new provisions. 

The application from Lind Brothers Construction was one of those incomplete applications, and it was vested under the pre-CAO regulations that required 100' buffers for "high functioning" wetlands. Years later when the developer completed the application, the City's wetland specialist issued a determination that the wetland required 100' buffers. The new Planning Director overruled her determination and stipulated 50' buffers that could be averaged to a minimum of 25'.

The Lind Brothers ungratefully appealed, contending that any regulation constituted a "taking". The closest neighbor Mark Quenneville along with Responsible Development also appealed, contending that the law required much more substantial buffers. Mark, RD and other neighbors contributed to hire a wetland specialist, a lawyer and pay for the litigation. This is the egregious part. Neighbors had to pony up tens of thousands of dollars to try to make the Planning Director follow the law.  Neighbors are still smarting from and already ponying up for the 2+ decades-long 100 Acre Woods debacle and the millions in phony value similarly hornswoggled out of thin air by planning directors who couldn't follow the law and electeds that wouldn't make them.

At the hearing, evidence was presented that the wetland was class 1 mature forested wetland. Scientific literature supports buffers of 300'. The hearing examiner did not rule on the class of wetland, instead making her decision in favor of the City dependent upon the accuracy of their wetland determination.  Litigation proceeded through the Washington Appeals Court where the Lind Brothers contentions were rejected and the Hearing Examiner's requirement necessitating a new wetland assessment was upheld.

So in 2013 the Lind Brothers presented yet another questionable wetland study. Nine years after the CAO should have been applied, after many thousands of expenses and untold hours of unpaid time, we fear the yet-even-newer Planning Director will do as his predecessors have, ignoring evidence of a Class 1 wetland to honor an archaic, illegitimate vesting, circumventing the CAO and issuing a fraudulent permit to facilitate the completion of this assault on our neighborhood.

Attached Files:

-> Selected Citizen Comments

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Wendy Harris  //  Sun, Apr 06, 2014, 10:23 pm

Thank you for discussing the city’s silent war on wetlands.  Does any one know if the city keeps track of the acres of wetlands that it fills in each year?  This precisely why we need a quantifiable baseline standard of all city wetlands, so this can be monitored and measured to ensure no net loss of ecological function. The city can not establish compliance with no net loss standards without a quantifiable baseline standard.. it is just basic science…. but everyone, including state and federal agencies with jurisdiction, look the other way.

You failed to mention the most horrific part, which is the attempt by the city to engage in compensatory mitigation, which involves filling in functioning wetlands and “recreating” new wetlands somewhere else, despite the high failure rate established by science. And when new wetlands are created, they rarely replicate all the ecological functions of the lost wetlands. 

The county is now attempting to establish an off-site wetland mitigation program that will likely allow city infill and county compensatory mitigation.. i.e, filling in expensive city wetland sites and dumping restoration projects on inexpensive county land. This will likely be included in its COB update for the 2016 comprehensive planning process. (How hostile to wetlands is the Linville administration?  They wanted to require mitigation for loss of jobs that resulted from protecting wetlands in the first draft of the new COB Economic Development chapter of its comp. plan. That would have made COB the first US city to require development mitigation.)

The city does have authority, under its police powers, to override vesting requirements where this is necessary to protect public health and safety, but it refuses to use this authority. Why would it when it is obviously using its authority to bend the rules the other way..being overly permissive in providing vested rights to developers.


Terry Wechsler  //  Mon, Apr 07, 2014, 6:22 pm

Chris, I’ve linked to your article on Whatcom Watch’s Facebook page. If you disagree with my summary or want to add anything, please check it out:  + Link


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