Ken has already posted this column on his “Inside Mann” blog at the Herald.  Here’s is my comment from his blog. (Ken, where’s our next stop?)

Ken,

Congratulations on laying out a very logical position backing the Padden Trail rezone. Unfortunately, the criteria which serves as the foundation for your support is inconsistent with – and does not satisfy – the legal framework that City Council is required to consider when making its determination. Your arguments, if valid, may serve to support higher densities in general, but they fail the legal standard by which the Padden Trails rezone application must be considered.

The City’s rezone criteria, established under BMC 20.19.030 [1], requires that ALL seven provisions be met. (Note the word “and” between 6 and 7.) If the rezone application fails ANY of the seven criteria, the application cannot be approved. Two of the key provisions are:

1: “It is consistent with the comprehensive plan or corresponds to a concurrent comprehensive plan amendment application;” and

6: “It will not be materially detrimental to uses or property in the immediate vicinity of the subject property.”

The issues surrounding these two criteria have already been discussed in great detail in articles (and accompanying comments) published on the Northwest Citizen site, one by Christopher Grannis [2], and the other by Bill Geyer [3]. I won’t go into details here, but interested readers are directed to these articles.

A key issue is suitability. Padden Trails is an isolated parcel comprised of steep slopes and wetlands that is accessible by a single entry/exit point. The idea that Padden Hills will be a bike-able community would be true… if every home buyer would be capable of competing in the Tour de France. But that’s not likely, and your comment, “Let’s make it bike-able” is patently absurd.

Suitability is also an issue when considering whether doubling the density on this challenging site violates several key land use policies of Bellingham’s Comp Plan, including FLU-7 and 8, and LU-24, 34, 55, 126, 127 and 128 [4]. Those who oppose the Padden Trails rezone believe strongly that a doubling of the density is inconsistent with each of these land use policies.

As you know, Ken, the devil is always in the details. In this case, while it appears the Planning Commission findings may be supported by the PC’s actual work product, that is not the case. The PC considered Rezone Criteria #6 during its Dec 15, 2011 Work Session [5]. Six of the seven PC members were present, and all six of them (Jeff Brown, Kurt Baumgarten, Sharon Robinson, Edie Norton, Tom Grinstad, and Tom Barrett) agreed that the rezone would be detrimental to uses or property in the immediate vicinity. This finding alone results in the application’s failure to meet criteria 6 and is sufficient to deny the application. In fact, by failing criteria 6, the application cannot be legally approved.

Of course, all of this ignores the fact that, when City Council agreed to docket the Padden Trails proposal, Council advised the applicant not to request a density increase. As a County Council Member, how would you react if you agreed to docket a proposal with a certain understanding that was violated when the proposal was actually submitted?

It is not a matter of Council “acquiescing” to the demands of hundreds of voters. It is a matter of law.

Regarding your arguments to support higher densities in general, I believe several of the assumptions and criteria you have established are either invalid or have not been met (and are not likely to be met in the near future):

1) Growth assumption: We are in the midst of a depressed housing slump unlike any since the 1930’s. The growth paradigm of the last 30 years or so has clearly changed. All we know for sure is that we know nothing about what actual population growth (or loss) in Whatcom County will be. Yes, people are having babies; but people are also dying. Yes, people are moving here; but people are moving away as well. You have only considered half of the equation. To make irreversible decisions based on an outdated paradigm is clearly the wrong way to go.

2) False dilemma: You wrote, “We can either have cities with low-density, single-family housing with unlimited free parking OR a county full of beautiful forests, farmland and recreation opportunities. We can not have both.”

Your statement establishes a false dilemma because it assumes that: a) If we agree to high-density, multi-family housing, then we guarantee for ourselves a county full of beautiful forests, farmland and recreational opportunities; and b) If we don’t agree to high-density, multi-family housing, then we guarantee for ourselves a county where the beautiful forests, farmland and recreational opportunities no longer exist.

That’s simply BS. It is quite possible to upzone every available parcel in the City and build mid-rise and high-rise complexes and still lose our forests and farmland. At the same time, it’s also possible that we can refuse to upzone these parcels yet preserve the forests and farmland. In fact, what the City of Bellingham does is inconsequential compared to what the County decision makers do.

As you wrote, “I admit the County has a lot of work to do to hold up our end of the growth/sprawl bargain. Our history of planning and land-use decisions has failed miserably. I am working on that.” Great, I hope you are successful. In the meantime, your “Trust me” sales pitch reminds me of my days in the Big Apple where “Trust me” has a special meaning. Truth is, we really don’t trust the county. Should we?

3) Impact fees: One of your criteria is, “Require development pay for its added burden on parks, schools, law enforcement, and infrastructure.” This criteria can ONLY be met when the city and county establish impact fees that cover the full proportionate share of these costs. Neither the city nor county are anywhere near meeting this criteria, and most of us have lost hope that either the city or county ever will. When do you envision the county will adopt impact fees that cover the full proportionate share of growth costs?

PS:
Regarding the preservation of farmland and forests, perhaps the answer is too simple for people to recognize. If the county would permanently zone those areas to remain farmland and forests, regardless of what happens in the city, then they WILL remain farmland and forests REGARDLESS of what happens in the city. You see, protection of these lands is not dependent upon what the city does.

That being said, it’s likely that city residents would be more willing to work with the county IF the county actually did its job and protected these lands. Until that happens, do you honestly expect city residents to drop their opposition to projects that will absolutely impair their quality of life? Is that even realistic?

I understand that you believe the Padden Trails proposal has merit, but approval is contingent upon meeting the legal criteria. How can you support the rezone application if it violates the law?

If you are really concerned with the countywide policies, I highly recommend focusing your efforts on implementing impact fees ASAP and adopting zoning regulations that permanently protect the farmlands and forests. The Padden Trails rezone is negligible compared to those two objectives.

Related Links:

(1) City of Bellingham Rezone Criteria (BMC 20.19.030)

(2) Christopher Grannis’ article: “Padden Trails is Chuckanut Ridge Lite”

(3) Bill Geyer’s article: “Padden Trails Provides Infill”

(4) Bellingham Comp Plan Land Use Chapter

(5) Bellingham Planning Commission Dec 15, 2011 Work Session proceedings

Read more here: Ken Mann’s blog on the Bellingham Herald

Mr Mann certainly has definite opinions about growth, beginning with his time on the County Planning Commission, when he first began trying to dictate a policy for the City without much understanding of its underlying policies, practices and procedures. These have been admittedly cumbersome, although some have been simplified, albeit at the cost of some citizen credibility. Perhaps, a more direct involvement with the City process might benefit Mr Mann’s appreciation of it and suggest approaches with more potential for both acceptance and effectiveness.

It is certainly true that Bellingham has its share of NIMBYs; perhaps even more than its share. But that is not likely to go away anytime soon without better citizen confidence in the City’s planning & permitting process, which will always remain problematic to some.
There is a widespread distrust of the development process, including anything that suggests up zoning or substantial infill. Much of this justified, but certainly not all of it, the way some ideologues seem to claim. Human nature being what it is, there is likely to be controversy no matter what is proposed that means change.

Chuckanut Ridge was a prime example of how a great infill opportunity was wasted due to pure greed combined with NIMBYism. Of course, the owners and developer didn’t help matters by insisting that the ridiculously high zoning be allowed, without regard for obvious underlying limitations, including extensive wetlands, a woeful lack of transportation access, a non-existent market to support full build-out, and the predictable objections from the existing neighborhood which morphed into a demand for ALL the property [85 acres] to become a park at public expense! The City’s Greenways program is now currently in debt by over $3.5 million it doesn’t have as a result of this very large acquisition.

I certainly hope this kind of exercise is not repeated any time soon; but to insure it isn’t, property owners and developers need to temper their demands to reasonable levels and not invite public over reaction!
Without ever knowing the details of any given proposal, understand that the land in question probably has an inherent carrying capacity, which if exceeded will always create justifiable concerns.

Much of the vacant property, currently within City limits, is vacant for a reason; it contains challenges of a nature likely to add substantially to the cost of development! Whether wetlands, steep slopes, sensitive watersheds, traffic bottlenecks, lack of existing utility services, or whatever, these things must be mitigated - mainly at the cost of the developer. Take that as a given!

So, look at the terrain underlying the Padden Trails development; does it contain any of the challenges mentioned above? I think it does, perhaps all of them. Now, decide what a reasonable carrying capacity might be. Now, you’re ready to consider whether things like up zones are justified, or if the existing zoning might already exceed the reasonable carrying capacity.

To my mind, the proposed Padden Trails development ought to be limited to no more than 100 dwelling units, unless and until a second full access route is established. Even with that, there are major problems to be dealt with and mitigated. Perhaps, reviewing what happened with the Birch Street development several years ago would be instructive as to particulars common to both proposals.

John,

I’m not sure ideologues, is the proper term for our local demigods, New Whatcom Planning, or Bellingham Planning, same as it ever was.

BELLINGHAM BAY IMPROVEMENT COMPANY v. NEW WHATCOM
172 U.S. 320 (1899)
“On January 13, 1894, the superior court entered decrees annulling the assessment, and these decrees were affirmed by the supreme court of the state on February 14, 1895. The ground of the decision was, as stated by the trial court in its conclusions of law, ‘that said assessments were not made or apportioned in accordance with the benefits received by the property, but were made upon an arbitrary rule, irrespective of the benefits.’ On March 9, 1893, the legislature passed a general act providing for the reassessment of the cost of local improvements in case the original assessment shall have been or may be directly or indirectly set aside, annulled, or declared void by any court. Laws Wash. 1893, p. 226.

MR. JUSTICE BREWER.
These cases involve the same questions, and the same judgments of affirmance will be entered in them.