Troubling Implications of Variance Request

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Fri, Mar 01, 2013, 5:19 pm  //  Wendy Harris

The University Ridge Student Housing Project is noteworthy because of its attempt to use the variance process to avoid zoning compliance.  If the applicant, Ambling University Group, LLN, and its agent, Ronald Jepson, are successful, this could create a loophole that undermines the zoning code and the public's right to meaningful comment.  I am posting below the letter that I submitted to the planning department in the hopes of encouraging others to comment.  The planning department has not decided whether or not it will recommend approval of the variance application.  The final decision will be made by the Bellingham Hearing Examiner, who is holding a public hearing, limited to the variance issue, on March 20, at 7 p.m. in the Bellingham City Council chambers.  I certainly hope the planning department will recommend against variance approval and I will be following this issue closely.

Withheld Application Information

As a matter of policy, the Hearing Examiner should return this application as untimely, or in the alternative, rule that the applicant has failed to meet its burden of proof.  The variance should be submitted as part of a consolidated application package that combines the SEPA process and the building permit, which includes the critical area report, stormwater plan and other relevant analysis. 

The law favors consolidated application processes for administrative ease, improved planning, and full disclosure of facts and information. The applicant declined to use Bellingham’s consolidated process procedures. Because the granting of a variance is discretionary, and because the burden of proof is upon the applicant under BMC 20.18.020, the hearing examiner has the authority to require the full disclosure of all relevant information.

It is clear from review of the site design plans that a great deal of planning has already gone into this project, including analysis of wetlands, geologically hazardous slopes, storm water run-off and traffic impacts. The applicant has met with the planning department and has likely already informally discussed these matters. Yet the variance application fails to reflect even preliminary analysis of issues.   

The public is entitled to full disclosure of project impacts. The variance criteria require that the granting of a variance not be unduly detrimental to the public welfare nor injurious to the property or improvements in the vicinity and subarea in which the subject property is located. 

Concerns have been raised by residents regarding traffic impacts, sufficient infrastructure, steep slopes, flooding, and structural and financial impacts to neighboring properties. This is the very information that must be addressed in the building permit application. 

The applicant has made a calculated determination to delay disclosure of project information by proceeding with the variance application before the building permit.  Without site analysis and reports, the public can only speculate, but can not prove, potential public harm. Although the burden of proof is on the applicant, the applicant’s chance for variance approval increases without informed public comment. 

The variance process is intended to protect the public interest and the public interest is not served when a variance decision is made without a full understanding of project impacts. The fact that this is a Type IIIB process indicates the potential for impact.

To further the goal of protecting the public, the hearing examiner should delay acting on the variance application, or in the alternative, determine that without building application material, the applicant has not met his burden of proof.

Reasonable Use

The applicant proposes a very large 4 building multi-story student housing complex spread over 11 acres of undeveloped land, containing areas of forest, steep slopes and wetlands, in the Puget Sound neighborhood.  The project includes 433 parking spaces for almost 600 residents, and borders single family housing, triggering application of the height overlay ordinance.

The applicant submitted a revised variance from the application of the height ordinance, arguing (in carefully couched language) that while it has the ability to fully develop its site by expanding the site design, it reduces impacts to land and neighbors by expanding upward, in excess of the height limitations for two of the four proposed buildings.

Whether, and to what extent, it is preferable to build “up” rather than “out’ was an issue already considered and codified into city law through the overlay requirement intended to protect single family residences.  A variance is not a device to provide flexibility that might otherwise be lacking in the development code.  The applicant needs to file a request for a zoning amendment rather than a variance.

A variance is intended to be issued rarely, and only is the most extreme situations where a property owner is deprived of reasonable use of its property.  It does not ensure the highest and best use of property.  Here, the applicant, Ambling University Development Group, LLN, is simply attempting to maximize its profit on a commercial investment, but intends to move forward with the project with or without a variance.   

The applicant has not met its burden of proof under BMC 20.18.020.  The applicant purchased the property with full knowledge that there would be some constraints on development under the city’s critical area ordinance and development standards. There is nothing exceptional about the existence of wetlands and slopes on the property in this area, or of a right-of-way requirement for such a large multi-residential property.  In fact, I challenge the applicant to identify any other 11 acre undeveloped lot in city limits that does not face similar critical area and development regulation constraints. With knowledge of these constraints, the applicant went ahead with a speculative property investment.

Granting this variance would establish a very dangerous precedent.  It would create unpredictability that undermines the zoning code by allowing site specific zoning exemptions for investors who assert that this will result in improved use of property. This will result in spot zoning and undermine the type of comprehensive planning mandated under the GMA and the SMA.

It would also undermine the public’s confidence in the fairness of the system and the transparency of local government, particularly where the public is not provided with relevant site information. Land use regulations are enacted after community discussion regarding the interests of existing residents and developers, and must be applied fairly and uniformly to everyone.  Please do not allow the variance process to be misused as a loophole for investors.

For all the above reasons, the hearings examiner and the planning department must deny/recommend against the applicant’s variance request.

 

Tip Johnson  //  Sat, Mar 02, 2013, 10:01 pm

Generally, following the previous article, I didn’t have any big complaint with the project.  It is a transit oriented design and high density infill in an area with adequate infrastructure and close to services. It adds much needed diversity to an existing neighborhood.  What’s not to like?

On the procedural issue, I completely agree with Wendy.  We always expect business to behave criminally because that is what we always see and because other than compliance with rules, there is no significant difference between how business and crime operate.  However, when government starts behaving criminally, we all have cause for concern, and action. 

The Planning Department has a duty to assure that the public has access to all information relevant to a project at the earliest opportunity.  If materials have been intentionally withheld to tactically benefit an application, it is a serious and urgent indication it is time for some house cleaning.

Citizens shouldn’t have to hunt and peck with anticipatory public disclosure requests to get the information. This cost too much and spurs legislative attempts to restrict disclosure.  That’s the wrong direction and we all know it.

If information has been withheld, the Hearing Examiner should refuse to hear the request.  What gives, Ms. Linville?


Dick Conoboy  //  Sun, Mar 03, 2013, 6:19 pm

Well, Tip, I may just suggest that they find a place for these 600 students a block from where you live.  :-)  I am always willing to share these opportunities with members of the community.

What’s not to like?  If you think that any management company is going to be able to control 600 students in housing on well less than 11 acres, I got that purchase agreement on that bridge in Brooklyn just waiting for you. 

As for density, this is just the perfect transitional spot for the Infill Tool Kit and affordable housing (Note that this project at $650 and up for a bedroom and bath is not what I would call affordable) but I don’t hear a single proponent of using the Kit crying out for its use on this acreage.  The folks on the council who wanted to use the Tool Kit at the presently moribund Padden Trails edgefill development need to chime in on University Ridge before they bring back the Tool Kit legislation to stuff it into single family zoned areas.  With all the rentals and ADUs around town, nobody has a handle on the ACTUAL density in most neighborhoods.  Let’s start with an accurate density survey before we fix a problem that isn’t there.

Just as an aside, note that the developer schedules the neighborhood meeting in a note to residents dated 20 Dec 2012, smack in the middle of the holidays.  Then they schedule the presentation to the neighborhood on 3 Jan 2013 just as everyone is returning from holiday travel or otherwise recovering from all the holiday folderol.  The practice of scheduling any sort of action on permit applications, variances, etc., ought to be stopped if within so many days of a holiday.  The neighborhoods have little time as it is to respond to the schedules created by the Planning Department and the City Council. 

As far as the remainder of your comment goes, I am right with you. 

One additional note:  There was only one variance request submitted by the developer and that is scheduled to be heard before the examiner on 20 March.  The developer was to have submitted is overall plan for the site on 27 Feb but has delayed that submission to do some “revisions” that have not been yet articulated to the public.   

 


Ryan M. Ferris  //  Mon, Mar 04, 2013, 10:27 pm

All other comments aside, I would like to see WWU’s housing growth projection. My guess is that at current tuition costs and housing costs, we will be seeing less and less students from the state of WA enrolled in WWU.  University budgets are a matter of public record, so if there are contracts and emails between Ambling and WWU they should be subject to PDRs.  If public employees (either COB or WWU)  have sheparded a private contractor into submitting such a substantial variance (and scheduling neighborhood meetings during holidays…) , I would like to know.


Dick Conoboy  //  Tue, Mar 05, 2013, 10:58 am

A correction to my previous comment.  There was a revision to the application for a variance filed by the developer on 8 February 2013.  The original variance application was made on 17 Jan 2013.  The revised variance reflected the change in positioning of the 4 apartment buildings and some changes to the texts of the various justifications for the variance.  The variance hearing remains scheduled for 20 Mar 2013. For further information, go to this link at the City of Bellingham website - 
+ Link


g.h.kirsch  //  Thu, Mar 07, 2013, 5:46 pm

Tip,
re: your question “What gives, Ms. Linville?”

Is that inquiry really necessary?  You know what gives.


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