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WEDNESDAY, OCTOBER 23, 2013, 06:00 PM

City Council Chambers


The regular hearing of the Hearing Examiner was called to order.

Roll Call


Staff Members Present: Steve Sundin, Planner II
Recording Secretary: Kristina J. Bowker

1. VAC2013-00001: Consideration of a Street Vacation Petition for an unnamed east-west right-of-way generally located north of West Bakerview Road, between Arctic Avenue and Pacific Highway. Pottle, Gray, Barsetti, Webster, Merrick and Brown, petitioners/owners. Commercial and Industrial Planned Land Use Designation. Cordata Neighborhood, Areas 3 and 5.

Hearing Examiner – Good evening, we have four items on the agenda this evening all street vacation petitions. The last three are all related to the central waterfront area. We have a sign-up sheet for those wishing to comment or for future noticing purposes. Swears in staff and those wishing to comment. Stated that she generally familiar with the location and reviewed the materials in the packet. In street vacation petitions she makes a recommendation to the City Council who makes the final decision. This may be your only time to comment on this proposal.

Steve Sundin – The petition complies with the policies. The right-of-way being vacated doesn't land lock any parcels and the area is for quite a bit less than what is proposed to be dedicated. We are being given sufficient additional right-of-way.

Hearing Examiner – References to Mahogany Avenue. Where is it on the map?

Steve Sundin – It runs east-west, at the top of the map, the proposed new street to be dedicated. It's the old Division.

Hearing Examiner – On some maps it looks as though some parcels only abuts this right-of-way?

Steve Sundin – Refers to Page 8, the biding site plan layout. The parcels on the south half have access have West Bakerview or Pacific Highway, and the parcels on the north half will access Dover/Arctic or Mahogany.

Hearing Examiner – We don’t have any legal parcels that only have access on this unnamed right-of-way?

Steve Sundin – That wouldn't otherwise have access. That's correct.

Hearing Examiner – Some maps have lines for parcels and some show a contiguous parcel all the way up to Mahogany?

Steve Sundin – The ones that are contiguous with West Bakerview stretch all the way back. This unnamed right-of-way was a requirement of the binding site plan because at the time (2004 or 2005) they wanted an additional circulation option running east-west. Mahogany is now on the Six-year TIP, so it will provide the east-west circulation. All the more reason to have this vacated.

David Rogers – Costco Wholesale representative. Hear to answer questions. This is the first step of their process.

Hearing Examiner – Dedications would occur prior to the effective date of the vacation ordinance?

Steve Sundin – Dedications would occur as a condition of the planned permit. There are multiple land use permits moving forward, so they would be dedicated through that process and the binding site plan would be extinguished through that same process. The other permits don't take Council approval.

Hearing Examiner – The ordinances is written as "vacated upon dedication of the new row." It's intended to go to City Council once all steps have been taken.

Dave Rogers – This is a part of their process. In exchange for this they will dedicating Artic Avenue.

Hearing Examiner – Opens for public comment.

No public comments.

Hearing Examiner – Will issue a recommendation to City Council. They will schedule it for a Council meeting and they could choose to take additional testimony, but probably will not.

2. VAC2013-00002: Consideration of a Street Vacation Petition for multiple right-of-ways within the Waterfront District: West Ivy Street between I Street and G Street; H Street between Roeder Avenue and Chestnut Street; Central Avenue that intersects with Ivy Street; Laurel Street abutting tideland blocks 217 and 219; and West Maple Street between D Street and C Street. Port of Bellingham, petitioner/owner. Industrial Heavy Land Use Designation. Currently within the Central Business District Neighborhood, Areas 2B and 15.

Hearing Examiner – Are we going to consider these all separately?

Steve Sundin – Yes.

Hearing Examiner – Has reviewed the materials in the packet and is familiar with the general areas. Did receive additional maps, street vacation proposals for all three, and TRC letter dated 9/10/13. Swears in staff and those wishing to comment.

Steve Sundin – Some comments as they apply to all of these. The authority of the Hearing Examiner is to make a recommendation to City Council. The ultimate decision lies with City Council and establish if new right-of-way is to be dedicated, or if money is to be exchanged, or if there is an exchange of equal value. Street vacations are not subject to the same regulatory clock, but we are trying to line-up the pieces to get them across the finish line at the same time. The vacations that are for right-of-ways in the harbor areas, go through a lengthy process with DNR. The Board of Natural Resources will also address public interest, public access and rights for ports. They either approve or deny, and then come back for 3rd/Final for Council. The inter-local agreement for the waterfront which will talk about the specific right-of-ways of to be dedicated is also being worked on for Council's approval. Pine Street, which runs parallel to the shoreline between the end of Cornwall and the shipping terminal, is not being vacated but will be in a long-term use agreement with the Port of Bellingham. It will be retained. The port management agreement with DNR will likely be amended or revised to include these right-of-ways. DNR has very specific use allowances for port purposes. They are meant to be reserved for navigation and port access. DNR doesn't do these very often, it's a unique process for them as well, but the rules and criteria are clearing identified in RCW 79.125. The upland right-of-ways, there are either city or private utilities in all of them. Additional easements may need to be retained for the private utilities for Comcast, Cascade Natural Gas and PSE. They will have easement information by the end of the month.
The intent of this is to maintain right-of-ways that abut bodies of water (saltwater in this case) for access and other purposes for public benefit. Looking at the aerial photograph, segments of W. Ivy and the intersection of Central/Oak are out in the water, but the public still has access from the water to these right-of-ways. The inland right-of-ways are available for development. 76,000 square feet or so is being dedicated for the first three phases, and the City expects there to be an equitable exchange between what is dedicated and what is vacated. The vacation of these right-of-ways comply with the city vacation policies. They won't be vacated until Council approves and the inter-local agreement will phase the dedications and level of development.

Sylvia Goodwin – Port of Bellingham. We have been working with the city for over 10 years and have worked on an inter-local agreement and a subarea plan. The right-of-ways proposed for vacation are all isolated segments, old tidelands, or those aren't needed for public access. The areas proposed for dedication are where public access and development will be more useful for parks, roads or trails. That was the intent of the original inter-local. Believes that this serves the public purpose. Hear to answer any questions, if you have any.

Hearing Examiner – Proposed dedications and parks public access areas?

Steve Sundin – Page 48.

Hearing Examiner – Opens for public comment.

Wendy Harris, Silver Beach Neighborhood – She asked for a continuance for this hearing. Really not that familiar with this stuff and would like more time to go through it. Nobody understands what's going on. Confused about why we have one public entity asking for street vacation of tidal lots of another public entity. They are supposed to act in the public trust in seeing and reaching the waters of the state. We are not being given anything specific or concrete in response. There should be specific, clear, firm language. We need to know what the dedications are going be. They are referring to draft documents, so it's not wise planning to rely on them. There is no time rush. This should be done the right way, even if it takes time. The provisions of the new dedications should be specified to see what the public is giving and what the public gaining. The new right-of-ways will be pursuant to the new inter-local agreement, which is a very complex document and will lead to an opportunity for surprises. These are controversial areas around the log pond and ASB/marina. Wait until the actual documents are final and clarity of what the public is going to get. Concerned about the public trust doctrine and their right to access water. The restrictions on street vacations still apply to land under the water, and property abutting or leading to the water. The EIS does not analyze plant and animal impacts. It is a fatal flaw. They are not considering habitat circulation needs. Wildlife should have the ability to travel. The public's interest includes habitat and wildlife. The city is taking a restrictive view of public benefit that relies just on compensation. We should be looking at more than financial compensation. The visioning process is supposed to be included in these documents. The public wanted more access to water, shoreline restoration and public ownership of the waterfront. How are they determining that what we are giving up is worth what we are getting? Not clear what kind of financial evaluations are even going on. The State is trying to prevent the use of street vacations for blatant infill. We only have a 50-foot buffer, and in some areas the city is open to bringing it down to zero. Any money for intense land development creates sight and scene barriers. Have we discussed any of this with the Lummis? Now is the time to start asking these kind of questions to do some sound planning. It's not appropriate to approve an ordinance for the vacation of public rights for something that's not going to happen for many, many years. Let's keep our public rights. Conflicts between the public access of the shoreline and need to restore the shoreline are not being considered. Current utilization is not a standard for vacation.

Jon Sitkin, 1500 Railroad Avenue – Attorney for the Port of Bellingham. The form of payment could be money, exchange of right-of-ways, rededication of other properties. That is not uncommon in land use practices. There are vast increases in parklands and shoreline access throughout all of these requests. The proposed ordinance would condition the vacation upon the adoption of the subarea plan, the inter-agreement, and all those documents that the city and port have been working on for 10 years. These vacation requests were applied for back in July 2013. A direct benefit to the public at large can be support of business and providing access to the water.

Steve Sundin – The EIS information provided in the staff report is simply background information. It's not a statement on the adequacy of the EIS. This is the phase for reviewing plans and approving them. The Lummi Nation is not an abutting owner. When the petition gets to DNR they have their own notification process and they may or may not notify them. Future land use doesn't matter. TRC's job is to screen it for future needs of circulation, which can include other things (streets, stormwater, access to parks). We don't consider habitat, that is under maintaining open space. Public trust doctrine is common law and not statutory. With those right-of-ways out in the water, City staff firmly believe that the public trust is not being violated. No plans to build any structures to prohibit swimming, fishing, etc. The other right-of-ways don't lead to any natural areas. Right now there is no public access available on the GP site of the property. These vacations and subsequent dedications will improve public access to the waterfront.

Hearing Examiner – Regarding the continuance request, she doesn't control the timing of these. This is a legislative process, not a quasi-judicial. She could hold the record open for a short period of time for additional comments. Could hold it open to the 31st.

Steve Sundin – Intends to have the Council review the materials on November 18th. Packets to Council are due November 12th.


3. VAC2013-00003: Consideration of a Street Vacation Petition for multiple right-of-ways within the Waterfront District: Army Street between Oak Street and Pine Street; Central Avenue between the inner harbor line and Pine Street; Oak Street between Central Avenue, Army Street and the inner harbor line; and C -- F Streets between the inner and outer harbor lines. Port of Bellingham, petitioner/owner. Industrial Heavy and Marine Land Use Designations. Currently within the Central Business District Neighborhood, Areas 2B and 11.

Hearing Examiner – Swears in staff and those wishing to comment. Stated that she is generally familiar with the site and reviewed the materials in the packet.

Steve Sundin – TRC reviewed these and determined that they are not necessary for future circulation. When the meeting was held in July, regarding all the petitions, they had a very good understanding of what the new right-of-ways were, the phasing of those, their sizes/locations, and abutting shorelines. They are either receiving more land area to accommodate the needs of the public, or a fair and equitable exchange of value. They concluded that the right-of-ways were not necessary for future circulation and that an appraisal was not required. RCW 35.79.035(1)(c) provides context. The purpose is to enable us to implement the waterfront area subarea plan, that is going to provide comparable or improved public access to the shoreline areas that the right-of-ways abut. Central, Army and Oak (or segments A, B and C) are currently being utilized for port purposes and have been for nearly 100 years. They are encumbered with the operational area and piers. For segments C -- F, they are out in the harbor area and will go through the DNR process. They do intend for all these things to be approved at once, and that the ordinance adopt the inter-local agreement. Council may consider it a benefit to consider the inter-local and vacations at the same time, because they inform each other. If something is deficient in one way or other, they will be able to consider them simultaneously. They intend to have them completed before the end of the year.

Sylvia Goodwin – Port of Bellingham. Steve covered the issue fairly well. Army, Central and Oak right-of-ways are all within the Bellingham Shipping Terminal and are isolated from the other right-of-ways. They probably should have been vacated in the 1960's when those buildings were built. The others, D -- F, are around the ASB (Aerated Stabilization Basin), which will be a public trail in the future. It is a housekeeping issue, so it is clear that they are DNR land, and eventually added to the Port's management plan. The public access is provided now is negligible because they aren't connected to anything. The public access in the future will be much better.

Hearing Examiner – Opens for public comment.

Wendy Harris – We don't have a waterfront district subarea plan. We are being asked to vacate public rights based on future speculative plans. The port and city cannot establish that it is a public benefit. The goal of the state is to protect the public's interest to access, use and enjoy water. The city and port are asking us to use this street vacation to substitute public rights for their plan. We do not have a finalized plan. What is the rush and the insistence is going forward? The public's right is not being protected. The city and port did not do a comprehensive review of what is a suitable use in the waterfront. There must be an appraisal of the fair market value, even when the compensation is not being paid in cash. They cannot substitute the opinion of their shoreline planner for that of a certified appraiser. This is an issue of great importance. Circulation review should consider wildlife. They should prevent habitat fragmentation. These are the same issues. You don't value real estate only by its size. Because the waterfront is contaminated, does not mean that it doesn't have high habitat value. Birds, otters and seals use that site. Once you have intensity of use, that will have severe impacts on whatever habitat exists. It needs to be considered in the exchange of public value and public benefit.

Jon Sitkin – Attorney for the Port. This site are part of the brownfields site and very expensive to clean-up. It takes near and long-term commitments from port and the city to accomplish clean-up. That is an underlying component of this effort. Would like to incorporate his prior comments and in any subsequent items.

Hearing Examiner – She will incorporate all of the comments for all three of the vacation petitions.

Jon Sitkin – BMC 13.48.010 an appraisal it as staff's discretion. Compensation, not necessarily money, is given to the discretion of the City Council of how to structure it when they adopt the ordinance. The proposed ordinance is conditioned on the adoption of the subarea plan. The vacations aren't implemented until that plan is adopted.

Steve Sundin – Street vacations are complicated, even the simple ones can be difficult to understand and work through. Page 74, Section 1 of the draft ordinance, when City Council reviews this, they will hear about these other documents, and they should all be approved at the same time. They will have the Hearing Examiner's Findings and Recommendation to utilize to make their decision. They will decide if these are all compliant with the policies and make the decision if compensation is appropriate. They will have context in order to make their decisions. Earlier Ms. Harris was making the case for retaining the right-of-ways for public access and now public access is harmful or impactful to species habitat. No sure where her comments really land because there is a conflict between those two arguments.

Hearing Examiner – We may include those comments on the next item.


4. VAC2013-00004: Consideration of a Street Vacation Petition for G Street between Roeder Avenue and West Chestnut Street. Port of Bellingham and Sanitary Service Company, petitioners/owners. Industrial Heavy Land Use Designation. Currently within the Central Business District Neighborhood, Area 2B.

Hearing Examiner – Swears in staff and those wishing to comment. Stated that she has been to site and reviewed the materials in the packet.

Steve Sundin – We believe the vacation petition is consistent with the policies. There are utilities within this right-of-way, so easements will have to be retained. The abutting owner to the south (Sanitary Service Co.) will acquire the south half of the right-of-way as out-right ownership. They use it as axillary parking. The property to north is leased from the Port for SSC employee parking. They are aware of the anticipated amount of payment for that right-of-way in the ordinance.

Hearing Examiner – This would occur at the same time as the others?

Steve Sundin – This one doesn't require DNR approval. It would be considered at the same time, but they would be able to finalize it once payment is received. Payment comes prior to 3rd/Final reading.

Sylvia Goodwin – Port of Bellingham. This parcel is bordered to the south by SSC, and to the north by the Port. When this opportunity came up, F Street provides good access to the property to the south. Hilton provides good access to the north. This right-of-way doesn't access anything other than SSC. They want to put in better paving and stormwater. SSC will pay fair market value for their half, and the Port will continue to lease their half to SSC. It will give more latitude for parking and managing stormwater within the right-of-way.

Wendy Harris – Would like to see the public right-of-ways protected to the maximum extent possible. If we need to restore habitat and set area aside, then that is in the public's interest. The areas being vacated, the city and the port want to develop that land. It is going to be lost into private hands. Wildlife concerns will not be addressed if that land is privatized. Bellingham Bay is crucial to us. Did not have time to really study this third item. The city and port have not met their burden of proof. Require them to make sure that the ordinances exist and they are finalized, some specificity as to what is being given and what is being gained.

Hearing Examiner – Anything further? Will hold the record open until the end of the business day on October 31st. They can be submitted electronically or in-person. Thank you.



Prepared by: Kristina J. Bowker, Assistant to the Hearing Examiner
Reviewed by: Steve Sundin, Planner II