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Street Vacation Petition of muliple rights-of-ways within the Waterfront District: w Ivy Street, H Street, Central Avenue, Laurel Street, and W Maple Street

Hearing Examiner #: HE-13-PL-034
Planning #:VAC2013-00002
Incident #:
Filing Date:09/13/2013
City Contact:Steve Sundin
Hearing Date: 10/23/2013
Description: Street Vacation Petition of muliple rights-of-ways within the Waterfront District: w Ivy Street; H Street; Central Avenue; Laurel Street; and W Maple Street
Decision Date: 11/06/2013
Decision Summary:Recommended to Council

This matter came before the Bellingham Hearing Examiner for hearing on the 23rd day of October 2013 on the Street Vacation Petition of the Port of Bellingham for the vacation of portions of West. Ivy Street, H Street, Central Avenue, Laurel Street, and West Maple Street.
Testimony was received from Steve Sundin, Planning and Community Development Department; Sylvia Goodwin, Port of Bellingham; Jon Sitkin, Petitioner's attorney; and Wendy Harris, 3925 E. Connecticut Street.
In addition to the Bellingham Municipal Code and Comprehensive Plan, the following documents were considered as part of the record: See Exhibit List.
The record for this vacation petition was consolidated with the records for the vacation petitions in VAC2013-00003 and VAC2013-00004. The testimony and documents included in the records for those vacation petitions are incorporated herein by reference.
The record was held open at the close of testimony to October 31, 2013 for additional written comments. Additional written comments were received from Wendy Harris on October 31, 2013 and are included in the record.

1. The Port of Bellingham petitioned for the vacation of portions of West Ivy Street, H Street, Central Avenue, Laurel Street, and West Maple Street within the Waterfront District, abutting Port of Bellingham property. The Washington Department of Natural Resources signed the vacation petition affirming that it is the manager of state-owned property in the Whatcom Waterway adjacent to parcels A and C, as described in the vacation petition.
2. The subject right-of-ways are located between the I & J Waterway, Roeder Avenue, Railroad Avenue, and the Outer Harbor Line in Bellingham Bay. They include six segments of right-of-way, labeled A, B, C, D and E in the vacation petition, (Segment A consists of two segments of West Ivy Street separated by private property) with a total area of approximately 76,000 square feet, 38,735 square feet of which is located underwater. The location of these segments and legal descriptions are shown on Attachment 1 to the Staff Report.
3. The proposed vacations are included as a part of the proposed New Whatcom/Waterfront District Redevelopment Project.
4. The Port of Bellingham's SEPA (State Environmental Policy Act) Official released the Draft Environmental Impact Statement (EIS), including Technical Appendices for the Waterfront Redevelopment Project in January 2008. A Supplemental Draft EIS was issued in October, 2008. A Final EIS was issued in July 2010 with Addendums issued in February 2010 and December 2012.
5. Drafts of a Waterfront District Sub-Area Plan, Development Regulations, Design Standards, Planned Action Ordinance, Development Agreement and an Inter-local Agreement for Facilities were issued in December 2012.
6. The Bellingham Planning Commission issued Findings of Fact, Conclusions and Recommendation for approval of the Waterfront District documents in June 2013. These documents and the Planning Commission Recommendation are currently under review by the Bellingham City Council. The documents are also currently being reviewed by the Bellingham Port Commission.
7. The Proposed Inter-local Agreement allocates responsibility for phased implementation of facility development, defines the timing of property transfers between the Port and the City, and establishes a process for on-going management of the Waterfront District Project. This Agreement would provide for the transfer of land from the Port to the City in exchange for the proposed vacations.
8. The Bellingham City Council set the hearing in this matter by Resolution on September 30, 2013.
9. Notice of the proposed vacations was sent to private utility providers on October 1, 2013. No private utilities have been identified within the subject rights-of-way. City water and/or sewer mains are located within Segments B and D. Retention of easements for existing utilities is recommended.
10. Notice of Public Hearing on these proposed vacations was issued on October 2, 2013.
11. Segments A (West Ivy Street, 32,335 square feet in area) and C (Central Avenue,6,400 square feet in area) are within first class tidelands except for a small portion of West Ivy Street that lies underneath a portion of the Aerated Stabilization Basin (ASB) breakwater. Neither of these segments are currently accessible by land from public rights-of-way.
12. Segment B (H Street) is 13,713 square feet in area and is unimproved right-of-way abutting improved Hilton Avenue to the west and Roeder Avenue to the north. This segment does not abut a body of water.
13. Segment D (Laurel Street) is 9,997 square feet in area and is located between Cornwall Avenue to the northwest and the alley between Cornwall Avenue and Railroad Avenue to the southeast. It is currently located within an open parking area leading to a remnant portion of Burlington Northern Santa Fe Railroad single track.
14. Segment E (West Maple Street) is 13,585 square feet in area and is located northwest of C Street and the Whatcom Creek Waterway. It is currently in an open parking area and travel lane supporting existing marine related uses.
15. The Technical Review Committee (TRC) has reviewed the vacation petition and has determined that the subject rights-of-way are not necessary for the future circulation needs of the city because they are not currently used for public transportation circulation and implementation of the proposed Waterfront District Sub Area Plan and Inter-local Agreement will provide for dedication of significant amounts of right-of-ways that will serve the circulation needs for the area.
16. BMC 13.48 provides for petitions, hearings, notice, appraisal and payment for street vacations. In this case, the Director of the Planning and Community Development Department determined that an appraisal was not necessary because the Petitioner proposed dedications of right-of-ways in an amount in excess of the proposed vacations in exchange for the vacations.
17. RCW 35.79 governs street vacations in cities. It provides procedural requirements and restricts vacations of streets abutting bodies of water and in cases where a majority of abutting property owners object to the vacation.
18. City Vacation Policies are set forth in the Staff Report.
19. Public comment was received from Wendy Harris. She objected to the proposed vacations on several grounds, including the lack of specific information regarding the future dedications intended to compensate for the vacation of the subject right-of-ways, the lack of involvement of the Lummi Nation in the process, that the vacations are premature until the Waterfront District Sub Area Plan is adopted, that there is still controversy regarding several elements of the proposed plan, including public access around the log pond and the ASB facility, that the public trust doctrine and State vacation laws prohibit vacation of streets abutting or under water regardless of whether there is current public access to them, that scenic vistas and wildlife habitat should also be considered before vacating streets, and that determining the public benefit to a vacation involves more than just compensation, it requires a broader determination of what the public gets in return for what it is giving up.
20. Vacation of right-of-ways within the harbor areas requires approval of the Department of Natural Resources, Board of Natural Resources prior to final approval of the vacation ordinance. The State's process is intended to assure that the public purpose and interest is served. The Department of Natural Resources has specific terms applicable to harbor areas it manages that provide for navigation and public access.
21. The proposed vacation would not land lock any parcels. All abutting parcels would maintain access from other rights-of-way.
22. RCW 35.79.035 provides that a city may not vacate a street that abuts a body of water unless the vacation is sought to enable the city to acquire the property for port purposes, beach or water access purposes, boat moorage or launching sites, park, public view, recreation, or educational purposes, or other public uses; the city declares that the street is not presently being used as a street and the street is not suitable for any of the following purposes: Port, beach or water access, boat moorage, launching sites, park, public view, recreation, or education; or the vacation is sought to enable a city to implement a plan, adopted by resolution or ordinance, that provides comparable or improved public access to the same shoreline area to which the streets sought to be vacated abut, had the properties included in the plan not been vacated. This section also provides that fair market value shall be paid for the vacation and that moneys received from the vacation may only be used by the City to acquire additional beach or water access, acquiring additional public view sites to a body of water, or acquiring additional moorage or launching sites.
23. Staff indicates that the proposed vacations are part of the proposed Waterfront District Sub Area Plan that the Council will consider concurrently with the vacations. The proposed Inter-local Agreement indicates that the street vacations are anticipated, that the effective date of the vacations will be the date of approval of the Sub Area Plan and related agreements, and that new right-of-ways will be dedicated or transferred consistent with the terms of the Plan and Agreement.
24. Segments A and C do abut a body of water, Bellingham Bay, but do not currently provide any public access as they are surrounded by Port property and are located in first-class tidelands. Other portions of the right-of-ways leading to these segments were previously vacated. Segments B, D and E do not abut a body of water.
25. The subject right-of-ways are not adjacent to and do not lead to any park, open space, view, natural area, or any other attraction, except as they abut Bellingham Bay, as stated above.
26. The subject right-of-ways do not currently serve the public good for circulation purposes or for public access to the water. The proposed vacation is for the purpose of implementing a proposed plan which will provide better circulation, connecting to existing streets and transportation networks, and serving the development expected within the Waterfront District. The proposed Plan also provides for public access, parks, views and habitat.
27. City Staff indicates that the value of land proposed for dedication exceeds the value of the subject right-of-ways by approximately 350%.
1. Procedural requirements for the proposed vacations have been satisfied.
2. The proposed vacations are not prohibited by RCW 35.79. All of the abutting property owners have signed the vacation petition. Although some of the segments proposed for vacation abut a body of water the vacations are proposed as part of a plan that would provide improved public access to the same shoreline area, Bellingham Bay. The plan would be adopted concurrently with the proposed vacations. The proposed vacations satisfy the requirements of RCW 35.79.035(1)(c).
3. The City Council determines the fair market value of the subject right-of-ways and the land/rights-of-way proposed to be dedicated/transferred in exchange. RCW 35.79.035(3) requires that the city receive at least fair market value, in money or property, for the vacation of Segments A and C. Any monies received may only be used to acquire beach or water access, public view sites to a body of water or moorage or launching sites.
4. Public comment raised valid concerns regarding the proposed Waterfront District Sub Area Plan and Inter-local Agreement and their relationship to the proposed vacations and transfers. Some of the points raised are beyond the scope of the hearing on the vacation petition and are more appropriately considered as part of the review and adoption of the plan/agreement itself. For purposes of this vacation petition it is sufficient to determine that the vacations are sought to implement a plan that is adopted by the Council prior to, or concurrent with adoption of the vacation ordinance, that will provide improved public access to the shoreline, in addition to the City's adopted vacation policies.
5. The subject right-of-ways should be vacated subject to adoption of the Waterfront District Sub Area Plan and Inter-local Agreement providing for the dedication/transfer of right-of-ways/land that will improve both public access to the shoreline and transportation circulation to and for the district, and a determination by the City Council that the value of land transferred or dedicated in exchange for the vacations is at least equivalent to the vacated rights-of-way.
The proposed vacations are recommended for approval subject to concurrent approval by the City Council of a Waterfront District Sub Area Plan and Inter-local Agreement which the Council determines provides for improved public access to Bellingham Bay and improved transportation circulation, and transfer/dedication of land/right-of-way of a value at least equivalent to the vacated right-of-ways, and retention of utility easements for existing utilities. Vacations within the First Class Tidelands and Harbor Areas are subject to approval of the Department of Natural Resources.

ENTERED this 6th day of November 2013.
Bellingham Hearing Examiner
Dawn Sturwold