Dear Director Stewart:

As I write this letter, I am reminded of a comment by a former planning department staffer who claimed he knew he had done his job well when he was hated equally by both developer and residents alike. He was referring to the fact that many planning decisions involve gray areas that require regulators to use judgment and choose among options with drastically diverse consequences.

Fortunately, the issue at hand is straightforward, and, while my request involves your action, it does not require discretion. In this case, the law is clear. But first… a little background.

As you know, before you began serving as Director of Planning, the Fairhaven Highlands subdivision and planned development applications were deemed complete by the planning department with lightning speed, in less than 5 business days - an amazing feat given the sheer magnitude and complexity of the proposed project.

What you may not know is that planning staff later determined that these applications were, in fact, not complete. As it turns out, although the April 2005 applications clearly involve direct wetland impact, the developer failed to submit the required Wetland & Stream (W/S) permit application, and staff failed to recognize this key omission on a timely basis.

In an email dated December 5, 2005, planner Kathy Bell wrote about Fairhaven Highlands to fellow staffer Marilyn Vogel, “After reading the Concurrent Review section of [Bellingham Municipal Code] Title 21, it seems that we should have made the planned application incomplete since the application proposed direct wetland impact and a W/S permit was not submitted.”

In other words, the applications were submitted and deemed complete in April 2005. Seven months later, staff discovered an error in that determination; however, there is no evidence that staff corrected this error by rescinding its Notice of Complete Application. The error was detected, but left uncorrected.

Moving on…

On November 18, 2005, exactly seven months after it was required - and one business day before the city adopted its Critical Areas Ordinance - the Fairhaven Highlands Wetland & Stream application was finally submitted. Staff issued a Notice of Completion on December 16.

As you know, submitting a complete application is one of two requirements to become vested under the Washington Vested Rights Doctrine. As summarized by the Washington Supreme Court, “The doctrine is applicable if the permit application is sufficiently complete, complies with existing zoning ordinances and building codes, and filed during the period the zoning ordinances under which the developer seeks to develop are in effect.” [Noble Manor v. Pierce County, 133 Wn.2d 269 (1997)]

The law is unambiguous. To be vested, an application must be both complete and compliant with existing ordinances and building codes.

The issue at hand involves two questions:

1) Is the Fairhaven Highlands Wetland & Stream application complete?

2) Does the Fairhaven Highlands application comply with existing law?

As readers of my last article know, the Fairhaven Highlands application is not complete nor does it comply with existing law. But this is not new. Included in the public comments on the scope of the Fairhaven Highlands EIS is a (more than one-year old) letter from Responsible Development dated January 23, 2008, which examines this issue in excruciating detail, including eight specific reasons why the application fails to meet these requirements. In particular, items 7 and 8 assert that the application:

• omits critical information about the Special Characteristics of five mature forested wetlands;

• errs in its rating of these Category I wetlands; and

• does not comply with the minimum buffer requirements then in effect.

So why am I writing to you now?

Because, after almost four years since the applications were initially submitted, the applicants themselves have furnished proof to you that the application is neither complete nor compliant with the laws then in effect. In fact, your department has placed this evidence on the city’s own website for all to see.

On March 31, 2009, the applicant submitted a revised Plant & Animal EIS Technical Report , prepared by Northwest Ecological Services (NES). Table 9 on page 46 provides an updated Wetland Categorization and Functional Summary. As you can see, the DOE ratings for Wetlands CC and JJ2, which were erroneously listed as Category II in the application, have been corrected and changed to Category I. These Category I ratings, which are marked with an asterisk (*), are “based on presence of Special Characteristics (mature forest).”

Table 7 on page 42 provides an updated Summary of Wetland Classifications. As you can see, the City of Bellingham (COB) ratings for Wetlands CC, JJ2 and KK have also been corrected and changed to Category I. Although not specified, it is presumed that Wetland KK is rated Category I based on its mature forested status.

So, as the community has claimed for almost four years, the applicants themselves have now furnished proof that the initial Fairhaven Highlands application:

1) Is incomplete because it omitted critical information about the Special Characteristics of these mature forested wetlands (even though such information is required by the Dept of Ecology Wetland Rating System);

2) Is erroneous because it incorrectly rated Wetlands CC, JJ and KK Category II under the COB rating system (per the original Wetland Delineation at page 16, Table 2) rather than Category I; and

3) Is not compliant with existing law because the 50’ wetland buffers provided by the application for these mature forested Category I wetlands are only half the 100’ required (BMC 16.50.080.B).

The law is clear: the Fairhaven Highlands application is not complete, is not correct, is not compliant, and is not vested. Simple. Straightforward. No discernment, discretion or judgment needed.

Back to my request…

As the Director of Planning, it is incumbent upon you to notify applicants when issues arise that impact their development applications. Applicants deserve to be notified as quickly as possible so they can adjust their plans accordingly, without delay.

Now that the applicants themselves have provided clear and convincing evidence that their original application was not complete and did not comply with laws in effect when submitted, you have a duty to inform them that their application must now comply with current law.

That is my simple request.

Thanks for your time. I appreciate the opportunity to share this information with you.

Sincerely,

Larry Horowitz

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Related Links:

Kathy Bell’s email to Marilyn Vogel re: incomplete application

Prior article: Opinion for Hire: Part 2 – Admission of errors

Responsible Development Supplemental Comment Letter on Scope of the Fairhaven Highlands EIS, without attachments

Responsible Development Supplemental Comment Letter on Scope of the Fairhaven Highlands EIS, with attachments

Revised Plant & Animal Technical Report by NES, March 31, 2009

Fairhaven Highlands Wetland Delineation (Oct 2005) submitted with Wetland & Stream application

BMC 16.50.080 – Wetland & Stream Regulatory Chapter, Wetland Buffers

Aerial view of Fairhaven Highlands with Wetland & Buffer overlay