Troubling Implications of Variance Request

Fri, Mar 01, 2013, 4:19 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.