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Conditional Use Permit request of COB Public Works Dept. re 4202 Pacific Highway / 4299 Northwest Road (aka North End Regional Pond, NERP)

Hearing Examiner #: HE-14-PL-024
Planning #:CUP2014-00003 / CAP2014-00008 / SEP2014-00007
Incident #:
Filing Date:04/16/2014
City Contact:Steve Sundin
Hearing Date: 06/11/2014
Description: Conditional Use Permit request of COB Public Works Dept. re 4202 Pacific Highway / 4299 Northwest Road (aka North End Regional Pond; NERP)
Decision Date: 06/25/2014
Decision Summary:Approved with conditions

This matter came before the Bellingham Hearing Examiner for hearing on the 11th day of June 2014 on the application of the City of Bellingham Public Works Department for a Conditional Use Permit to develop a regional stormwater management facility at 4202 Pacific Highway and 4299 Northwest Road in Bellingham.
Testimony was received from Sam Shipp and Brent Baldwin, Bellingham Public Works Department; Steve Sundin, Bellingham Planning and Community Development Department; and Robert Janicki, 222 Grand Avenue.
In addition to the Bellingham Municipal Code and Comprehensive Plan, the following documents were considered as part of the record: See Exhibit List.

1. On February 14, 2014, the City of Bellingham Public Works Department (the City) applied for a Conditional Use Permit to develop approximately 13 acres of land located at 4202 Pacific Highway and 4299 Northwest Road (the subject property) into a regional stormwater management facility, known as the North End Regional Pond (NERP).
2. The subject property is located between Northwest Avenue and Pacific Highway in Area 20 of the Cordata Neighborhood. This area is designated Residential Single.
3. The City also applied for a Critical Areas Permit (CAP) for the proposal. A SEPA checklist was included in the applications.
4. A combined notice of application was issued for the Conditional Use Permit and the CAP on April 17, 2014.
5. A Determination of Non-Significance (DNS) was issued for the proposal pursuant to the State Environmental Policy Act (SEPA) on May 30, 2014.
6. In 2012, the City undertook an assessment and study of potential sites for the NERP stormwater facility to serve the northwestern portion of the City's Urban Growth Area (UGA). Five locations were studied, including the impacts of a facility on the wetlands in each location. The analysis concluded that the least amount of wetland impacts would occur at the proposed site. The proposed site also avoids the areas closer to Bakerview Road which are of higher value for residential and commercial development. Locating the NERP at the proposed site will also provide a buffer for Bear Creek.
7. The City acquired the site in June 2013. In August, 2013 the site was annexed into the City along with the areas included in the northwest UGA. These areas were designated Areas 20 and 21 of the Cordata Neighborhood upon annexation.
8. The project site is rectangular. Mahogany Avenue (formerly Division Road) borders the site on the south and will be the primary access for the site. Bear Creek runs through the north-central portion of the site.
9. The proposal includes a seven-acre pond , 1,800 linear feet of 48-inch diameter conveyance pipe (within the Mahogany Avenue right-of-way), and an outfall, on the 13-acre site. The project includes approximately 170,000 cubic yards of excavation and approximately 24,000 cubic yards of topsoil for planting areas at the site and for off-site wetland mitigation.
10. The NERP is designed to manage and treat between 37 and 80 acres of impervious surfaces within the Bear Creek sub-basin of the Silver Creek watershed.
11. The NERP would be located on the southeastern half of the property, south of Bear Creek and its buffer area. The outfall to Bear Creek would be located near the northeast corner of the NERP. Approximately 0.8 acres of direct wetland impacts to Category II and III wetlands would result from the project. Temporary impacts would occur with installation of the conveyance pipe within the Mahogany Avenue right-of-way. Approximately 2.3 acres of off-site wetland mitigation would be provided, as well as buffer enhancements, at a mitigation site to the north of the proposed facility. A separate CAP is required for the proposal and is currently under review by the Planning and Community Development Department.
12. The NERP will provide gravity service to the area west to I-5/Pacific Highway, east toward Northwest Road, and south to Bakerview Road. This area includes residential, commercial, and industrial properties, as well as rights-of-way, and is largely undeveloped.
13. The site contains several wetland areas south of Bear Creek. Some of these wetland areas will be excavated and included within the pond. Off-site mitigation will be required pursuant to a CAP.
14. The facility will not be accessible to the public. It will be designed, if feasible, to avoid the need for fencing, but fences will be installed if necessary for public safety. Gates will be installed for authorized access.
15. The City intends to design the site so that it will be aesthetically pleasing.
16. The development of the NERP will avoid the need for the installation of smaller detention and treatment facilities on individual properties. It will free up the private land for higher value development and avoid the need for the city to monitor the individual facilities. It will also assist development by providing required stormwater management for sites that have soils that are not adequate for infiltration. The NERP will be owned and operated by the City.
17. The NERP was contemplated in the ordinance annexing the area to be served by the facility.
18. The facility will be designed and installed in accordance with BMC 15.42, regulations relating to stormwater management, and the Department of Ecology Stormwater Management Manual for Western Washington (Manual).
19. This facility will be the first regional pond within the city.
20. Community public facilities are a conditional use within the Residential Single zone.
21. Community public facilities are defined in BMC 20.08.020 as "government owned or operated facilities generally designed to serve the local area of Bellingham: fire stations, police stations and court facilities (but not jails or correctional institutions), stormwater detention facilities, branch libraries, transit stations, park and ride lots, water storage facilities and parks, trails and playgrounds."
22. Criteria for approval of conditional use permits are set forth in BMC 20.16.010 and .020. BMC 20.16.020J(4) provides specific factors to be considered for public utilities. This section provides that the Hearing Examiner shall have the authority to require standards more stringent than the zone's development regulations or allow relief from these standards if the hearing examiner finds that such modifications are necessary to accommodate the special needs of an appropriate use and/or mitigate impacts from the use.
23. City staff has recommended approval of the Conditional use Permit subject to the conditions set forth in the Staff Report.
24. Public comments were received for the proposal. The Washington Department of Ecology commented in response to the CAP application. The city is coordinating the CAP permit process with the Department of Ecology and the Army Corps of Engineers.
25. The Port of Bellingham submitted a comment referencing the Federal Aviation Administration (FAA) general guidance for reducing the potential of attracting hazardous wildlife near public use airports. The NERP is within the FAA's 10,000-foot zone of concern for such facilities. An application to the FAA for the facility is required. The facility must meet design requirements or incorporate bird deterrents. The application will be reviewed by the FAA and the Port of Bellingham.
26. A neighboring property owner commented, reiterating the concern expressed by city staff that chain link fencing be minimized, and requesting that the pond be an authentic feature for the region and multifunctional, to include recreational value. He suggested a trail system on the dikes surrounding the facility.
27. The NERP is classified as a stormwater treatment wetland in the DOE Manual, defined as a shallow, man-made pond that is designed to treat stormwater through the biological processes associated with emergent aquatic plants.
28. The facility may only be used by future development if they demonstrate that Low Impact Development (LID) techniques cannot be implemented on the development site or right-of-way.
29. The conveyance pipe for the NERP will be installed within the Mahogany Avenue right-of-way. Public utilities are permitted within rights-of-way so a Conditional use Permit is not required for the pipe.
30. The NERP is consistent with the policies and objectives of the Comprehensive Plan. It was specifically contemplated at the time the area which it will serve was annexed into the city and incorporated into the Cordata Neighborhood. The Capital Facilities chapter of the Comprehensive Plan provides that regional detention and water quality facilities should be used wherever feasible to provide economies in space.
31. The facility will provide for the reasonable use of adjacent properties by providing a stormwater management facility designed to serve those properties.
32. The facility will be designed to be compatible with the character of the neighborhood.
33. The facility will not create traffic congestion.
34. The facility will be designed to protect public safety. It is not expected to generate significant noise, odor, smoke, light, electrical interference or mechanical vibrations.
35. With required mitigation for the impacts to wetlands the facility will not result in the destruction, loss, or damage to natural, scenic or historic features of major consequence.
36. The proposed use will promote the health, safety and general welfare of the community. It will provide enhanced stormwater detention and treatment to promote water quality.
37. The proposed facility satisfies the purpose and intent of the Residential general use type. Stormwater management facilities are required for the development of residential properties. The regional system will allow residential development on the higher value portions of the area, consistent with the specified density, while providing for the stormwater management needs of the immediate area on the city-owned site.
38. The proposed facility will not be detrimental to the surrounding neighborhood. It will provide a buffer between residential uses to the east and industrial uses to the west. A portion of the five-foot berm around the pond will be visible along the southeastern portion of the pond but will taper to ground level along the northeastern portion of the pond. Native vegetation will be used for screening of the facility and to prevent unauthorized access to the site. The facility will be designed to look like, and function as, a wetland, as the wetland plantings mature.
39. The proposed NERP will comply with the side and rear yard setback requirements specified for Residential Single development. The city proposes to locate the facility 40 feet from the centerline of Mahogany Avenue rather than the 50 feet from centerline required for Residential Single development. The proposed modification to the setback from Mahogany Avenue is necessary to accommodate the special needs of the facility. The site is constrained by Bear Creek and its buffer to the north. The property will be used for a stormwater management facility. These facilities are frequently located within or near a right-of-way
40. There is a demonstrated need in the community for this facility.
41. There are adequate public facilities to serve the proposed use. It will not have significant traffic or parking impacts on the surrounding area.
42. The facility is designed to serve the adjacent land uses and has incorporated measures to minimize adverse impacts.
43. The facility is required to comply with all other applicable regulations.
44. Pedestrian access is not contemplated for this facility.
1. The proposed use satisfies the criteria specified in BMC 20.16.010 and .020 for issuance of a Conditional Use Permit.
2. The proposed use is consistent with the Comprehensive Plan and the purpose and intent of the provisions of the Bellingham Municipal Code relating to Community Public Facilities and stormwater management facilities.
3. A Conditional Use Permit should be granted for the proposed facility subject to the conditions set forth below.
4. Any Finding of Fact that should be denominated a Conclusion of Law shall be deemed to be a Conclusion of Law. Any Conclusion of Law that should be denominated a Finding of Fact shall be deemed to be a Finding of Fact.
A Conditional Use Permit is granted for the proposed North End Regional Pond (NERP) on the subject property, subject to the following conditions:
1. Prior to any site work a landscaping plan for the eastern and southern edges (upland of the pond slope) of the NERP shall be submitted to the Planning and Community Development Department for review and approval. Native vegetation shall be utilized for screening and preventing informal public access to the pond to the maximum extent feasible.
2. Street trees shall be installed at a ratio of one per 50 feet of pond frontage along Mahogany Avenue. Street trees may be planted in the Mahogany Avenue right-of-way or on the NERP parcel between the pond and the right-of-way.
3. The setback from Mahogany Avenue for the NERP facilities shall be at least 40 feet from the centerline of Mahogany Avenue, as proposed.
4. Chain link security fencing shall be used only where absolutely necessary. Where chain link fencing is used, colored vinyl slats, or other materials designed to disguise the appearance of the chain link approved by the Planning and Community Development Department, shall be included.
5. Excavation and heavy machinery work, including but not limited to, installation of the outfall and conveyance pipe, shall only occur between May 1st and October 1st of any year. Work may occur after October 1st (weather permitting) if approved in writing by the Planning and Community Development Department. Installation of vegetation and fencing, erosion control BMCPs and development of the access road are not subject to this restriction.
6. The facility shall be substantially as described in the materials and representations submitted in support of the proposal, subject to modifications and design additions required to comply with other code and permit requirements.
7. The design, location and installation of the facility shall comply with all conditions set forth herein and all other requirements of the Bellingham Municipal Code and other applicable regulations and permits.
8. No construction or use is authorized until all necessary permits are obtained and all conditions required to be completed prior to construction are satisfied.
9. Any future recreational or public access use of the property shall be at the discretion of, and subject to the approval of the appropriate city department(s)/authorities in accordance with applicable city and/or state regulations, and consistent with public safety requirements. The proposal does not include any recreational or public access use at this time.

ENTERED this 25th day of June 2014.
Bellingham Hearing Examiner
Dawn Sturwold