Skip to page contents
Contact Us Site Map
You are here: Home) Government) Departments) Hearing Examiner) Case Decisions ) Case: HE-13-PL-007

Planned Development / Variance request of Ambling University Development re 4413 Consolidation Avenue (aka University Ridge)


Hearing Examiner #: HE-13-PL-007
Planning #:PDC2013-00002 / VAR2013-00001 / DRC2013-00008 / CAP2013-00019
Incident #:
Filing Date:02/08/2013
City Contact:Kathy Bell
Hearing Date: 09/11/2013
Description: Planned Development / Variance request of Ambling University Development re 4413 Consolidation Avenue (aka University Ridge)
Decision Date: 10/23/2013
Decision Summary:Approved subject to conditions. Boarding and Rooming Houses not allowed.

This matter came before the Bellingham Hearing Examiner for hearing on the 11th day of September 2013 on the application of Ambling University Development Group, LLC for Planned Development approval, height variance, Design Review approval, and a Critical Areas Permit for property located at 4413 Consolidation Avenue in Bellingham to construct and operate purpose-built student housing known as University Ridge consisting of four multi-residential buildings, a clubhouse and parking.
Testimony was received from Kathy Bell, Planning and Community Development Department; Brent Baldwin, Public Works Department; Charles Perry, Applicant's representative; Glen Peterson, Applicant's architect; Brad Swanson, Applicant's legal counsel; Ron Jepson, Applicant's engineer; Joseph Carpenter, 4215 Adams Avenue; Don Diebert, 4414 Marionberry Court; Gaythia Weis, 1713 Edwards Court; Steve Abell, 1021 34th Street; Rod Dean, 848 Nevada; Madeleine Baines, 4417 Marionberry Court; Beth Fryback, 200 Milton Street; Ajit Rupaal, 805 Queen Street; Patty Bover, 4420 Marionberry Court; Jim Le Galley, 124 S. 44th Street; Dave Ivie, 1101 Nevada Street; Sandy Brown 1229 Toledo Street; Gene Marx, 810 Salmonberry Lane; Terri Marshall, 1125 Nevada Street; John Brown, 233 Terrace Place; Steve James, 1324 Whatcom Street; Anita Lee, 905 Nevada Street; Kathy Taylor, 814 Nevada Street; Sherry Schafer, 128 S. 44th Street; Rebecca Belford, 813 Nevada Street; Erwin Lloyd, 1005 Kelley Ridge Court; Susan Bayer, 825 Queen Street; Jim Bachman, 134 43rd Street; Bill Langley, 4424 Marionberry Court; Jacob Deschenes, 804 Salmonberry Lane; Dan McKinney, Transpo Group; Alan Danforth, 1109 Nevada Street; and Robert Wong, 208 Milton 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 was held open for public comment until September 23, 2013 and for responses from City staff and the Applicant until September 30, 2013. Materials relating to prior proceedings for the subject property (Plat of Cedar Ridge, Division 2) were requested on September 11, 2013 and received by the Hearing Examiner on October 11, 2013, at which time the record in this matter was closed.
I. FINDINGS OF FACT
PROPERTY LOCATION, DESCRIPTION & HISTORY
1. Ron Jepson, on behalf of Ambling University Development Group, LLC, applied for Planned Development approval, a Variance from height restrictions, a Critical Areas Permit, and Design Review for a proposed 164 unit, purpose-built student housing development with 576 beds in four multi-unit buildings and a clubhouse on property located at 4413 Consolidation Avenue.
2. The subject property is legally described as Tract F, Cedar Ridge Division 2. It is located in Area 17 of the Puget Neighborhood. This area is designated Residential Multi, Planned, 5,000 square feet per unit overall density. Special conditions include clearing and view.
3. The property is owned by the Irving H. Jr. & Joan Hawley Trust.
4. The property is located north of Consolidation Avenue, west of Puget Street, east of Nevada Street and south of Marionberry Court. It abuts Area 13 of the Puget Neighborhood on the eastern boundary. Area 13 is designated Residential Single, Detached, 10,000 square feet minimum detached lot size, and is developed with single-family residences across Puget Street from the subject property. To the south, across Consolidation Avenue are Areas 3 and 4 of the Samish Neighborhood. Area 3 is designated Residential Multi, Planned, 5,000 square feet per unit. Area 4 is designated Residential Single, Detached, cluster detached, 12,000 square feet minimum detached lot size, one lot/12,000 square feet overall cluster density. The properties across Consolidation Avenue from the subject site are either undeveloped or developed with single-family residences. The properties to the west of the subject site are located within the same area as the proposal, Area 17 of the Puget Neighborhood, and are developed with single-family residences. The property to the north was dedicated to the City for open space purposes as part of the subdivision approval for the Hawley Re-Plat, also known as Cedar Ridge Plat, which included the site of the proposal. This open space area is approximately 15 acres and contains a Category I wetland and buffer. This area will not be developed. It was intended to satisfy the required open space for the Cedar Ridge Plat.
5. The subject site is approximately 11.15 acres, or 485,444 square feet, in size. The property is currently undeveloped and contains a mixed deciduous and coniferous forest canopy with an understory of shrubs and ground cover. The typical slope of the site is 20 -- 22%, sloping down from east to west. The eastern portion of the site contains slopes in excess of 40% and is a geologically hazardous area, regulated by the City's Critical Areas Ordinance, BMC 16.55 (CAO). A 100-foot wetland buffer for the Category I wetland located on the City-owned open space property to the north, and along the northern property line of the property, extends onto the subject site.
6. The Hawley Replat, or Cedar Ridge Plat received Preliminary Plat approval in May 1994 in Bellingham Resolution No. 19-94. The plat included 46.71 acres and provided for a total of 123 units, including 64 single-family lots, one duplex lot, one triplex lot, one four-plex lot, and a 50-unit multi-family tract. It also contained a 15 acre open space parcel that was dedicated to the City and a tract that was labeled Future Development. The tract labeled Future Development is the subject property. The plat conditions provided that additional public review would be required prior to development of the reserve tract. No unit count was assigned to the Future Development tract in the Preliminary Plat Resolution. Division 1 of the plat contained the seven single-family residences abutting Nevada Street north of Consolidation Avenue and immediately to the west of the subject property. Final Plat approval for Division 1 was granted in April 1996 in Resolution 26-96.
7. Division 2 of the Cedar Ridge Plat received Final Plat approval in July 2002 in Resolution 2002-24. Division 2 consisted of 48 single-family lots, one duplex lot, one triplex lot, one1 four-plex lot, a 50-unit multi-family lot and a reserve tract (the subject property). The Final Plat Resolution shows a site plan identifying the subject property as Tract F Future Multi Site, See Sheet 4 of 4. Sheet 4 is not attached to the Final Plat Resolution. Sheet 4 as recorded with the Whatcom County Auditor has the notation: "176 units" on Tract F. Attachment 1 to the proposed Final Plat Resolution included in the City Council Agenda Bill, described in the proposed Resolution as the Site Plan, shows the same notation for Tract F, "Future Development (176 units)".
8. In October 2004, Cypress Ventures, LLC requested a Plat Alteration and Subdivision Variance for a portion of the property located in Division 2 of the Cedar Ridge Plat. Part of the proposal was to transfer three units from Tract F (the subject property) to Lot 12 and Tracts C and D. The plat alteration was approved to allow further division of Lot 12 (the duplex site) and Tract B (the triplex site) so that the units could be developed on lots that would be individually owned. Tract C (the 50-unit multi-family tract) was also altered to allow single-family attached, cottage, carriage and townhouse units on individual lots to provide an alternative to condominium or apartment development on the sites. The transfer of units from Tract F to Lot 12 and Tracts C and D was denied. The Order of November 29, 2004 indicates that the existing unit count for Tract F shall remain.
9. The maximum density for the entire 46.71 acre parcel included in the Cedar Ridge Plat under the Residential Multi, Planned, 5,000 square feet per unit designation was 406 units. If density was not clustered on the subject site by the Cedar Ridge Plat the subject property would be able to accommodate 97 units at 5,000 square feet per unit zoning.

PROCESS
10. The City conducted a pre-application conference for the proposal on December 11, 2012. A pre-application neighborhood meeting was conducted at Carl Cozier Elementary School on January 3, 2013.
11. On January 17, 2013 the Applicant submitted an application for a Variance from height restrictions. This application was put on hold by the Applicant on March 8, 2013.
12. On April 29, 2013 the Applicant submitted applications for the planned development, multi-family design review, a critical areas permit and a SEPA checklist. The variance application was amended and incorporated into the application submittal.
13. A Notice of Complete Application was issued on May 24, 2013. On May 28, 2013 the City issued a Request for Information. On June 18, 2013 the Applicant submitted a response to the Request for Information.
14. On June 10, 2013 the City issued a Notice of Application and Pending Action for the proposal, with a comment period ending June 25, 2013. The site was posted by the Applicant on June 14, 2013.
15. On August 8, 2013 the City issued a threshold Determination of Non-significance (DNS) pursuant to the State Environmental Policy Act (SEPA) for the proposal, with a public comment period ending August 23, 2013. The DNS is Exhibit G to the Staff Report.
16. The Notice of Public Hearing for the September 11, 2013 hearing was published on August 23, 2013.
17. The applications for Planned approval, Multi-family Design Review and a Critical Areas Permit are Type II processes pursuant to BMC 21.10. The application for the Variance from height restrictions is a Type III-A process. The Applicant requested a consolidated review process for all four applications. As provided in BMC 21.10 all consolidated applications are considered and decided in conjunction with the highest process type. Therefore, all of the applications are reviewed in a Type III-A process with the Hearing Examiner making the final decision after a public hearing. Absent the consolidated review the Planned permit, Multi-family Design Review and Critical Areas Permit would have been reviewed and decided by the Planning Department, with a possible appeal to the Hearing Examiner. Any appeal of the Hearing Examiner's decision is to Superior Court.


PROPOSAL
18. The Applicant proposes 164 units in four buildings. 40 of the proposed units are two bedroom/two bathroom units with kitchen, living and laundry facilities. The remainder of the units have four bedrooms and four baths with kitchen, living and laundry facilities. The Applicant proposes to rent each bedroom/bathroom suite separately. The tenants in each unit would share the other facilities in the unit. The total number of bedrooms proposed is 576 and the Applicant proposes to limit occupancy of each bedroom/bathroom suite to one person. The Applicant proposes to limit occupancy of the units to college students. A clubhouse and other common areas are also proposed. A pedestrian footpath would be constructed from the Nevada Street/Consolidation Avenue intersection to the Puget Street/Consolidation Avenue intersection. 432 parking spaces would be provided on-site together with 88 long-term bicycle stalls. The Applicant proposes to provide 24-hour on-site management and shuttle service for residents to and from the Western Washington University (WWU) Park and Ride facility, to WWU, retail centers, grocery stores and downtown.
19. The proposed buildings are located in two rows running north to south with parking and driveways situated between and east and west of the buildings.
20. The proposed development has one access point off of Consolidation Avenue just east of the intersection with Nevada Street.
21. The northerly portion of the property is subject to a 100-foot setback from the City-owned wetland area to the north. The Application includes a proposal for wetland averaging to locate a portion of the driveway which accesses parking areas within the buffer.
22. The westernmost buildings would be located approximately 160 -- 200 feet from the nearest residences on Nevada Street and Marionberry Court. Parking and a raingarden stormwater facility would be located between the westernmost buildings and the westerly property line abutting these residences. The proposed clubhouse would be located at the entrance to the development.
23. The Applicant requests a variance from the provisions of BMC 20.38.050 B(4), which states that no structure shall exceed 35 feet under BMC 20.08.020, height definition No. 1, when within 200 feet of the site plan boundary lying adjacent to any residential general use type area not designated planned. Proposed buildings 1 and 2 are located within 200 feet of Area 13 of the Puget Neighborhood and Area 4 of the Samish Neighborhood, both of which are designated Residential Single. The Applicant proposes buildings which are 58 feet in height under height definition No. 1.
24. Puget Street is situated approximately 50 feet higher than the existing grade of the location for the most easterly buildings. The grade steepens at the easternmost portion of the property.
25. A Critical Areas Permit is required for the proposal because the site contains geologically hazardous areas and required buffers from the wetland to the north. The Applicant proposes to average the wetland buffer. The proposed averaging occurs adjacent to proposed driveways and would result in a net increase of approximately 27 square feet of buffer area.
26. Consolidation Avenue abutting the site is a 30-foot wide right-of-way. It is developed to about 90 feet east of the Nevada Street intersection. The Applicant proposes to construct Consolidation Avenue, to three-quarter City standard of a 28-foot street, from its existing terminus to just east of the entrance to the development. The Applicant would also dedicate 20 feet adjacent to Consolidation Avenue for additional right-of-way to facilitate the location of utilities required for the development.
27. BMC 20.38.050B(13) provides that streets and utilities should be constructed abutting the property lines unless it is demonstrated that the street or utility extension is not necessary to serve adjacent properties. In this case, the Applicant proposes that extension of Consolidation Avenue beyond the entrance to the development is not necessary because other properties to the east of that point would be better served by extensions of other streets, and because the Consolidation Avenue right-of-way between the entrance to the development and Puget Street exceeds the maximum 15% grade allowed by City standards for street improvements.
28. Due to the steep grade differential between the development site and Puget Street no access to Puget Street is proposed or feasible. No improvements to Puget Street are proposed by the Applicant.
29. A public sewer main with sufficient capacity for the proposed development is located adjacent to the property in Consolidation Avenue and would be extended into the property to provide City sewer facilities for the development.
30. Water for the development would be split between a high pressure system, which would provide domestic water for the site, and a lower pressure zone for fire flow. A private system with fire pumps and hydrants would be provided on-site, connecting to the City water mains.
31. Stormwater facilities would be installed in accordance with a Stormwater Site Plan consistent with BMC 15.42. Stormwater facilities are required to provide for post-development discharge of stormwater from the site at no more than pre-development levels.
32. A Transportation Concurrency Certificate (CON2012-00020) was issued on December 5, 2012 for the proposal, which was assessed as a mid-rise apartment complex with a 7% reduction for proximity to transit.
33. A traffic study was performed for the proposed development by Transpo Group dated April 2013. This study evaluated the project as a standard mid-rise apartment complex and assumed a 7% reduction in vehicle trips to account for public transit within close proximity to the site. It projects that the proposal would generate approximately 640 vehicle trips per day with 59 trips occurring during the PM peak hour. The traffic study concludes that the proposal would increase traffic volumes in the study area and contribute to increases in intersection delay but that all intersections included in the study would continue to operate at acceptable levels of service, D or better. The City has adopted level of service E as its standard.
34. The traffic study assumes that the student occupants of the development will use public transit services. WWU's Lincoln Creek Transportation Center Park and Ride lot is located approximately five blocks by foot from the project entrance. WWU students receive a Whatcom Transportation Authority bus pass as part of their tuition package.
35. A supplemental traffic analysis prepared by Transpo Group, dated September 30, 2013, was submitted by the Applicant in response to public comments regarding traffic issues. This analysis included four intersections, including Byron Avenue/Ashley Avenue. It concluded that even if all traffic was assigned to Byron Avenue in trips to and from Lincoln Street all intersections would continue to operate at LOS D or better at PM peak.
36. Nevada Street would provide the most direct route for vehicles and pedestrians from the proposed development to Lakeway Drive. A portion of Nevada Street lacks sidewalks and has 18 -- 20 feet of pavement. Traffic circles have been installed in this section of the street as a traffic-calming measure. The Preliminary Plat approval for Cedar Ridge included a requirement for improvement of Nevada Street to minimum standard north of the plat to Lakeway Drive in any area where it is substandard. No information was provided regarding any improvements to Nevada Street made prior to final plat approval for Division 2 of Cedar Ridge. Minimum standard improvement on a residential street would include 20 feet of pavement with four-foot wide shoulders.
37. The Puget Neighborhood Plan states: " Nevada Street is a residential through-street within one-quarter mile of Lakeway Drive and the Commercial District. Nevada Street residents experience traffic volumes such that residents would feel safer walking in separated space. (Currently no curbs, gutters or sidewalks exist on either side of Nevada Street, between Edwards Street and Consolidation Avenue. The City has included sidewalks for this area in the Six-Year TIP, but adequate funding has yet to be identified.)" It also states that left turns from Nevada Street onto Lakeway Drive present major challenges for drivers.
38. The Cedar Ridge Plat contains a pipestem portion of the subject property that has direct access to Nevada Street. No connection to Nevada Street utilizing this pipestem is proposed for the development.
39. Transportation impact fees for the proposed development would be required in accordance with BMC 19.06.

PLANNED DEVELOPMENT
40. BMC 20.38 regulates the development of land designated with a Planned use qualifier. BMC 20.38.020 states that the planned use qualifier is intended for areas which are adaptable to flexible development and/or where review of pending development proposals is necessary to ensure that adequate provisions are taken to minimize possible detrimental effects. The planned use qualifier is intended to provide a procedural framework which permits diversity in the location of types of structures, promotes the efficient use of land by facilitating a more economic arrangement of buildings, circulation systems, land use and utilities, preserves to the greatest extent possible the existing landscape features and amenities and utilizes such features in a harmonious fashion, addresses site-specific opportunities and concerns, and lessens development impacts to adjacent areas through site design and necessary mitigating measures. It further provides that the planned residential designation is intended to provide flexibility in site and building design for a harmonious variety of housing choices, including manufactured homes, within an environment where more usable open space or recreational opportunities are possible beyond that which could be provided within the scope of conventional regulation.
41. BMC 20.38.030 provides that no building or land shall be used within an area designated with a planned use qualifier without planned approval which specifically regulates development upon the property except that one single-family dwelling is permitted outright, and existing nonconforming buildings and uses may be renovated or expanded, with limitations, or change occupancy to a use permitted by BMC 20.38.050.
42. BMC 20.38.040B provides that a Planned Development decision shall address all development aspects necessary to protect the public health, safety and welfare, including, but not limited to, appropriate permitted uses and/or special conditions on the uses, height restrictions on structures, yard requirements, sign regulations, street, utility and other public improvements both adjacent to the site and off site, which may be necessary as a result of the proposal, and an exhibit specifying building area, parking area, curb cut locations, buffer areas if necessary, or any other feature or requirement which may need to be graphically depicted. This section provides that the planned proposal may be changed, altered, or conditioned as reasonably necessary to ensure compatibility with city goals, policies, standards, the surrounding areas or to mitigate direct impacts of the proposal.
43. BMC 20.38.050 provides the standards applicable to planned development proposals. This section provides that the standards are minimum standards and may be increased for a particular planned proposal where more stringent standards are necessary to protect neighboring properties, conform with existing development in the area, preserve natural resources or sensitive environments, provide for orderly development or conform with the comprehensive plan. Planned developments must conform to any more stringent minimum standards provided within the applicable neighborhood plan.
44. BMC 20.38.050B(2) provides as follows: "Range of Uses Possible. Any of the following uses may be permitted in a planned proposal within a residential general use type designation; provided, that any of such uses shall not be permitted where prohibited within the applicable neighborhood plan. Certain uses may also be excluded from a particular planned residential area if such uses are found by the planning director to be incompatible with the surrounding area or unsuitable to the particular site. The final decision shall set forth the uses permitted for the subject property." The range of uses possible includes single-family dwellings, duplexes, multi-family dwelling units, manufactured home parks, bed and breakfast facilities, parks, playgrounds, trails, recreational facilities, recreational vehicle storage areas, open space, mixed use, public utilities, any conditional use permitted in the residential multi designation, attached accessory dwelling unit, detached accessory dwelling unit existing prior to January 1, 1995, confidential shelters, wireless communication facilities, co-housing, and community public facilities.
45. BMC 20.38.050B(3) provides that for planned projects within a residential general use type, the maximum number of units possible shall be determined by multiplying the size of the subject property by the area density designated in the applicable neighborhood plan. This resulting figure represents the maximum number of units possible and cannot be exceeded without having the density designation of the area changed by council.
46. BMC 20.38.050B(4) provides that no structure shall exceed 35 feet under BMC 20.08.020, height definition No. 1, when within 200 feet of the site plan boundary lying adjacent to any residential general use type area not designated planned. It also provides that for the remainder of the property the final height standards shall be determined by the planning director.
47. BMC 20.38.050B(5) requires that a minimum of 25% of the total site area be left as open space, or that the project achieve a green area factor score of 0.6 in accordance with BMC 20.12.030E. The proposal includes more than 25% of the total site area left as open space, in addition to the open space tract that was dedicated to the City as part of the Cedar Ridge Plat.
48. BMC 20.38.050B(6) requires usable space in an amount equal to that required for a proposal for the same number of units under BMC 20.32.040F (250 square feet per unit), provided that active recreational facilities may replace usable space requirements if approved by the planning director. The proposal includes approximately 53,000 square feet of usable space, which is in excess of the required amount.
49. BMC 20.38.050B(7) requires building setbacks as listed in that section, generally 40 feet from the centerline of a non-arterial street, 50 feet from the centerline of an arterial street, and 20 feet from the property line abutting a residential single zone for front and flanking side yards. Side and rear yard setbacks are 10 feet from the property line but increase by five feet for each 10 feet or fraction thereof in height over 35 feet. Side and rear yard setbacks abutting a residential single zone are 25 feet from the property line. The proposal exceeds the required setbacks on all sides.
50. BMC 20.38.050B(8) provides that parking shall satisfy all parking regulations for similar uses contained in BMC 20.12, that no parking area shall extend within 15 feet of any property line abutting a residential single zone, and that parking areas shall be shown on the site plan with final review and approval of parking plans prior to building permit issuance. The parking requirements in BMC 20.12.010 specify one and one-half space for each one or two bedroom unit, two parking spaces for each three bedroom unit plus one additional space for each bedroom over three per unit, and one parking space per bedroom for each duplex with four or more bedrooms. The parking requirement for a boarding house is one space for every two bedrooms. The Applicant proposes to provide 432 spaces, approximately the number of spaces that would be required for multi-family dwelling units similar to the proposal.
51. BMC 20.38.050B(9) provides that planned proposals shall satisfy all landscaping requirements for similar uses contained in BMC 20.12.030, except that the yard area between a parking facility and any street shall be landscaped and include an evergreen hedge with plantings spaced not more than two feet on center and designed to be maintained at a height of at least two and one-half feet and not more than three feet in height. The Applicant has accepted the City Staff recommendations regarding landscaping, including restoration of transition areas between the preserved areas and developed portions of the site, planting native plants to integrate with the retained forested areas, incorporating both coniferous and deciduous tree species to match the scale of the buildings, and using larger tree stock to provide for more immediate screening.
52. BMC 20.38.050B(10) provides that one sign with the name of the development, which may be indirectly lighted, and may not exceed 50 square feet in area, may be located near the main entrance roads on private property.
53. BMC 20.38.050B(11) provides that existing drainage courses of significance, as identified in the comprehensive plan, topography, significant treed areas and other natural features should be saved, preserved and enhanced to the greatest extent possible consistent with reasonable and appropriate use of the subject site. Significant clearing and grading is proposed to locate the buildings and parking areas. The perimeter of the site is mostly proposed to be retained in its natural state, except that the area in the northwest corner would be cleared for the raingarden, and clearing is proposed on a portion of the western boundary immediately below Puget Street.
54. BMC 20.38.050B(12) provides that planned proposals should be designed in close coordination with the city's comprehensive plan.
55. BMC 20.38.050B(13) provides that streets and utilities should be designed to fulfill reasonably anticipated future need and be located to enable the continued orderly and reasonable use of adjacent property, and should be extended to the property line unless it is clearly demonstrated that the extension will not be needed for development of adjacent property. It also provides that dedications of right-of-way shall comply with minimum city requirements and that streets should be improved to the standard required by Ordinance No. 8027 unless a standard is specified in the circulation plan and provided that the planning director may approve streets which are consistent with neighborhood standards. Sidewalks are required on all abutting rights-of-way, or an LID commitment for sidewalks if the City determines that the facility does not need to be constructed immediately and walkways are required to link building entrances with parking areas, sidewalks, and other building entrances. The Applicant proposes to extend Consolidation Avenue only to the entrance to the development due to the steep slope located within the right-of-way to the east. No other streets facilities would be developed. A pedestrian path would be constructed within the Consolidation Avenue and Puget Street rights-of-way. 20 feet of right-of-way would be dedicated for Consolidation Avenue.

PROPOSED USE
56. The Applicant has proposed units containing four bedrooms each, with the intent to rent each bedroom suite within the units to an individual student, although the Applicant expects that about 75% of the time individuals would select their own roommates to fill the bedrooms in the units before leasing the rooms. Four unrelated students living in a unit would not fit within the definition of "family". Because the proposed units would be occupied by more than three unrelated individuals City staff has interpreted the proposal as one for the development of a boarding and rooming house/dormitory.
57. "Dwelling unit" as defined in BMC 20.08.020 means a single unit providing complete, independent living facilities for one family including permanent provisions for living, sleeping, eating, cooking, and sanitation.
58. "Family" is defined in BMC 20.08.020 to mean one or more persons related by blood, marriage, or adoption, or not more than three unrelated persons, living together within a single dwelling unit. For purposes of this definition children with familial status within the meaning of 42 USC 3602(k) and individuals with disabilities within the meaning of 42 USC 3602(h) will not be counted as unrelated persons. Adult family homes, as defined by RCW 70.128.010, are included within the definition of family.
59. "Boarding and rooming house" is defined by BMC 20.08.020 as a structure used for the purpose of providing lodging or lodging and meals for persons other than those under the family definition. This term includes dormitories, cooperative housing and similar establishments but does not include hotels, motels, medical care facilities or bed and breakfast facilities.
60. Terms not specifically defined in BMC 20.08.020 are defined as provided in the adopted building code, or, if not defined in the building code, as defined in Merriam Webster's Third (or latest) Edition English language dictionary.
61. "Dormitory is defined in the International Building Code, Section 310.2, which has been adopted by the City, as a space in a building where group sleeping accommodations are provided in one room, or in a series of closely associated rooms, for persons not members of the same family group, under joint occupancy and single management, as in college dormitories or fraternity houses.
62. The proposed units do provide complete, independent living facilities, including permanent provisions for living, sleeping, eating, cooking and sanitation, and could be used by a "family". If occupied by persons included within the definition of "family" the proposed units would be considered legal dwelling units consistent with the Bellingham Municipal Code. If a unit was occupied by more than three unrelated individuals or other persons included within the definition of "family" the occupancy would not be a lawful use of a dwelling unit.
63. Uses permitted within a Residential-Multi, Planned area may include those uses listed as Conditional in BMC 20.32.030B . BMC 20.32.030B provides that the following uses may be allowed if approval can be obtained, based upon standards and requirements for conditional uses as specified in Chapter 20.16 BMC: 1. School, 2. Church, 3. Neighborhood club/activity center, 4. Nonconforming use; signage, 5. Golf course facilities, 6. Riding academy, 7. Medical care facility, 8. Public utilities, other than those described in subsection (A) of this section, 9. Day care, 10. Service care, 11. Day treatment center, 12. Child placing agency, 13. Adaptive uses for historic register buildings as defined in BMC 20.16.020(A)(1), 14. Bed and breakfast facilities (subject to the standards found in BMC 20.34.040(F)(3), 15. Boarding and rooming houses, 16. Parking facilities (nonretail), when used in conjunction with other permitted or conditional uses in the RM general use type, 17. Agricultural nursery, 18. Eating establishment (multiple use qualifier only), 19. Single-family residence containing 5,500 square feet or more total floor area (subject to the standards found in BMC 20.16.020 (L) (3), 20. Wireless communication facilities, subject to the provisions of Chapter 20.13 BMC, 21. Art schools, and 22. Community public facilities, with the exception of publicly owned parks, trails and playgrounds, subject to the provisions of BMC 20.16.020(J)(4).
64. BMC 20.16.010 provides that certain uses because of their unusual size, infrequent occurrence, special requirements, possible safety hazards or detrimental effects on surrounding properties and other similar reasons, are classified as conditional uses. Conditional uses may be allowed in certain general use types provided the use is specified under the conditional use subsection of the appropriate general use type if it is clearly shown that the proposed use will promote the health, safety and general welfare of the community, the proposed use will satisfy the purpose and intent of the general use type in which it is located, and the proposed use will not be detrimental to the surrounding neighborhood. In applying these standards the following factors are considered as to whether the proposed use will: 1. Be harmonious with the general policies and specific objectives of the comprehensive plan; 2. Enable the continued orderly and reasonable use of adjacent properties by providing a means for expansion of public roads, utilities, and services; 3. Be designed so as to be compatible with the essential character of the neighborhood; 4. Be adequately served by public facilities and utilities including drainage provisions; 5. Not create excessive vehicular congestion on neighborhood collector or residential access streets; 6. Not create a hazard to life, limb, or property resulting from the proposed use, or by the structures used therefor, or by the inaccessibility of the property or structures thereon; 7. Not create influences substantially detrimental to neighboring uses; "Influences" shall include, but not necessarily be limited to, noise, odor, smoke, light, electrical interference, and/or mechanical vibrations; and 8. Not result in the destruction, loss, or damage to any natural, scenic, or historic feature of major consequence.
65. BMC 20.16.010 provides that conditions may be imposed on the proposed conditional use.
66. BMC 20.16.020 B(3) defines a Boarding and Rooming House Conditional Use as is set forth in BMC 20.08.020. It is conditional in the residential multi general use type. Special requirements applicable to a Boarding and rooming house are that the maximum occupancy shall not exceed one person per 250 square feet of ground area, and that parking shall be provided off an alley if one is available, and that such alley must be improved to a standard where it is dust free, well drained, and at least 10 feet in width.
67. Other than one single-family residence and existing nonconforming uses no use of property designated Planned Residential is outright permitted. All other uses must obtain Planned approval, which includes a determination that the use is appropriate for the site. Although those uses listed as Conditional are not required to obtain approval through the procedure set forth in BMC 20.16.010, they are required to satisfy the standards set forth for those uses. A proposed conditional use that does not promote the health, safety and welfare of the community, satisfy the purpose and intent of the comprehensive plan or that is detrimental to the surrounding neighborhood is not an appropriate use and should not be approved for a planned development.
68. The City's Comprehensive Plan includes policies relating to land use, including goals, policies and strategies to preserve and protect the unique character and qualities of existing neighborhoods, encourage affordable, attractive, stable and diverse residential neighborhoods, providing for a variety of housing opportunities, make more efficient use of the remaining City land supply, facilitate development on existing lots of record, and providing for an affordable housing stock to meet the needs of all segments of the community.
69. The Puget Neighborhood Plan for Area 17 states: "This is a largely undeveloped area, which includes a new multi-family complex south of Whatcom Street, wetlands, hillsides, and areas which are relatively flat. The area is an ideal multiple housing area, being convenient to town, parks, and commercial areas. Higher densities should be allowed on the level, dry areas, while the wetlands and steep areas should remain open. Water lines for development within this area must be carefully designed to provide adequate fire flow."
70. The Puget Neighborhood Plan describes the Neighborhood Character as follows: Puget Neighborhood is a large single-family neighborhood with pockets of multi-family residences, a large mobile home park, a commercial node at Lakeway Center, the Civic Field public recreational complex which serves the entire city, and considerable industrial development along Whatcom Creek at the north end of the neighborhood. While Lakeway Center, a designated city "Town Center" is almost completely developed, there is room for additional commercial or industrial development in other parts of the neighborhood southward toward the I-5/Samish interchange and in Areas 14, 18, 19, and 20. Puget and Toledo Hills occupy the southern and eastern parts of the neighborhood and are developed with single-family homes on medium-sized lots. Homes are well cared for and many have excellent Bellingham Bay or Canadian Cascade views. In the past 40 years, streets, utilities, and residential development have extended south and north of Lakeway. In some cases, this has resulted in full standard new street sections feeding additional traffic onto Lakeway Drive via older, substandard street sections. (The remaining portion of the Neighborhood Character section describes the area north of Lakeway Drive and is omitted herein.)
71. The Neighborhood Plan describes the existing open space in the neighborhood: "The Puget Neighborhood has a variety of dwelling types on large lots with private landscaping primarily south of Lakeway Drive, east of Nevada Street, and west of Puget Street. These green spaces are privately owned with no public access, however the resulting beauty helps define the character of the neighborhood. Preservation of this quality is warranted."
72. The Neighborhood Plan also states that many of the open space patterns follow steep hillsides and stream corridors and that these critical areas are inherently unsuited for development. It states that steep hillsides provide the scenic backdrops that are an important element of Bellingham's character, and the nature of development on hillsides should be such that the scenic character is not significantly altered.
73. Because the remainder of the Cedar Ridge Plat was developed with predominantly single-family housing and a large area of the site was set aside and dedicated to the City for wetland/open space purposes the subject property is the only area left to accommodate any of the remaining density assigned to the plat.
74. Since the Cedar Ridge Plat was approved, nearly two decades ago, the City's Critical Areas Ordinance has been amended to include additional critical areas and to require larger buffer area adjacent to the critical areas. The critical areas regulations further reduce the area of the site subject to development.
75. Because the remainder of the plat, as well as other properties in the area, were developed with predominantly single-family residences, the character of the immediately surrounding neighborhood is predominantly single-family. Multi-family residential development is located further to the west, near the Consolidation Avenue/Ashley Street intersection and a mobile home park is located several blocks to the northwest of the site, abutting Lincoln Street. The development on the subject site must be done in a way that is compatible with the essential character of the neighborhood.
76. The proposed development of housing for 567 college students in four buildings, with each student having his or her own bedroom and bathroom in an apartment unit with living, kitchen and laundry facilities shared with either one or three other students would represent an increase in density over the 176 units specified for this property on the site plan recorded for Cedar Ridge, Division 2. Development of up to 176 multi-family dwelling units on the property is unlikely to result in occupancy by as many individuals, or persons of driving age, as the proposal.
77. Although the proposal is intended to provide housing for WWU students WWU is not affiliated with the project and has not provided input on the proposal.
78. The WWU campus is regulated by an Institutional Master Plan which is part of the WWU Neighborhood Plan. This plan provides for development on the campus and for possible additions to the campus. It provides projections for future needs and standards for new development. This plan provides a projection of between 100,000 and 210,000 square feet of new residential floor area to be developed by the university after 2015 to meet the projected need for additional on-campus housing.
79. Each of the proposed buildings would house more students than are housed in 7 of WWU's 17 residence halls. The four buildings combined would house more students than all but one of WWU's residence facilities. The proposal would provide housing for almost 4% of the WWU student population, and 14% of the total number of students housed on campus.
80. No similar off-campus projects have been developed in Bellingham.
81. The subject property is located about one and one-half miles walking distance from WWU.
82. A large number of public comments was received for this proposal. Most of the comments stated that the proposed use was out of character for the neighborhood and not appropriate for the site and that the proposal would have detrimental impacts on the surrounding neighborhood, including excessive traffic and noise, spillover parking on residential streets, increased drainage, and degradation of property values. Concerns were expressed that the traffic study did not adequately represent the actual traffic patterns and volumes that would be generated by the proposal, that the project would have a single access point at the corner of Consolidation Avenue and Nevada Street, that Nevada Street would be overly burdened by traffic generated by the proposal and was not adequately improved to handle the traffic, and that the proposed outdoor recreation facilities would generate additional noise and safety impacts on the neighborhood.
83. City staff recommends approval of the use subject to conditions relating to active management of the use and limitation of the use to the Applicant's proposed operation with a Covenant to Restrict Use, required terms of lease agreements, a requirement to bring the site into compliance with code provisions if it ceases to be used as a boarding and rooming house, and provisions to allow the City to enforce these conditions at the Applicant's expense.
84. The proposal is to construct four buildings which do not fit easily into the definition of boarding and rooming houses. They provide full dwelling units, and are only categorized as boarding and rooming houses because they are intended for occupancy by more than three unrelated individuals. In all other respects the majority of these units appear to be multi-family dwelling units with four bedrooms and four bathrooms and it is likely that the tenants will treat them as such. The tenants will have all the facilities for independent living, including a kitchen, living area, deck or patio, and laundry facilities within their unit.
85. Land uses are not typically conditioned on the continued operation of a particular management company. Businesses come and go, ownership changes and business models change. Conversion of the proposed units into legal dwelling units would be impractical for those units that contain four bedroom/bathroom suites.
86. Ongoing monitoring of the proposed use and enforcement of necessary conditions by the City for the life of the facilities is also impractical, and unprecedented on the scale of this proposal.
87. The Applicant could provide housing for students in units containing three bedroom/bath suites in multi-family dwelling units. Construction of dwelling units would provide flexibility for conversion to traditional apartments or condominiums if the owner chose to target a different, or broader, tenant population in the future.
88. The Applicant states that it has never had a problem with Fair Housing laws as a result of limiting occupancy to students and does not believe that this limitation violates any of these laws.
89. Washington State laws prohibit discrimination in housing or other real estate transactions based on sex, marital status, sexual orientation, race, creed, color, national origin, families with children status, honorably discharged veteran or military status, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability. An exemption is provided for public and private educational institutions to separate the sexes or give preference to or limit use of dormitories, residence halls, or other student housing to persons of one sex or to make distinctions on the basis of marital or families with children status. This exemption is not available to owners of rental housing other than educational institutions.
90. The proposed use is not designed to be compatible with the essential character of the neighborhood. The four bedroom suite units represent an increase in density over that which would typically be found in a multi-family residential neighborhood. The presence of these units, which are not designed for family occupancy, and could not be converted to standard multi-family units without major alterations to the structure, are not consistent with the family oriented neighborhood surrounding the subject property. The character of the surrounding neighborhood was established, in large part, by the owners of the subject property, their predecessors and successors in interest, by developing the remainder of the plat for single-family uses despite the multi-family zoning.
91. The portion of the plat that is left undeveloped, and which is the subject of these applications, is the area constrained by steep hillsides and wetland buffers, which is the least suitable area for intensive development.
92. The proposal could create excessive vehicular congestion on neighborhood collector or residential access streets. In contrast to traditional multi-family housing the proposed student housing would be occupied entirely by persons of driving age. These apartments would not be occupied by families operating as a unit but by four individuals. The traffic study utilized traffic generation numbers applicable to mid-rise apartments, but did not differentiate between the proposed occupancy and occupancy by couples or families, except that it assumed students would use public transportation more than would be typical for a multi-family unit. City standards and mitigation requirements are based on PM peak trips. However, traffic impacts may occur all hours of the day. With one ingress and egress point all of the traffic from the development will utilize the Consolidation Avenue/Nevada Street intersection. It could be expected that many of the student tenants will have common destinations at common times as they travel to and from classes or evening entertainment. All of these trips will traverse either Nevada Street/44th Street or Consolidation Avenue past the existing residences. Given the number of units and tenants proposed for the development it is likely that the traffic generated by the proposal will outnumber the existing traffic on these streets and other residential streets in the vicinity of the development. Certainly some students would use public transportation or bicycle to their destinations, especially since they are provided with bus passes by the university. However, the traffic study only reduced vehicle trips by 7% on account of proximity to transit. No off-site road improvements are proposed, other than improvement of Consolidation Avenue to the project entrance. A portion of Nevada Street would remain narrow and without sidewalks. The provision of a shuttle service by the Applicant would mitigate some of the impacts of the traffic generated by the proposal.
93. Neighbors expressed concerns regarding the inadequacy of the proposed parking for the proposal. Parking spaces would be provided for only 75% of the proposed residents of the units. No additional parking is proposed for guests. Because the abutting streets would not be developed or accessible to the development they would not provide on-street parking for guests or others visiting the site. A lack of adequate parking on-site may result in spillover parking on other neighborhood streets resulting in further congestion on the residential streets.
94. Neighbors of student housing in apartments and houses have expressed frustration with the level of noise generated by the use, particularly late night parties and traffic noise. The proposed use could be expected to generate more noise, particularly at night, than a standard multi-family development. A development with 576 college age tenants, in 164 units, each equipped with a kitchen, living room and deck or patio, is more likely to be conducive to entertaining guests in addition to the tenants, than a university residence hall or a standard multi-family development. Active management and strict regulation of tenant activities could mitigate some of the adverse impacts.
95. Provision of student housing does promote the health, safety and welfare of the community, but it should be provided in a manner that minimizes the impacts on the surrounding neighborhood and in areas suited for the use. The proposal locates this intensive use on land constricted by environmental factors -- wetland buffer and steep slopes -- and requires a variance to achieve the high density.
96. The purpose and intent of the Residential Multi use type is primarily to accommodate the highest concentrations of people within the city with regulations intended to provide a framework for a desirable living environment for the people living within and adjacent to the areas designated RM. The proposal would accommodate high concentrations of people but may result in a less desirable living environment for the people living in and adjacent to the site.
97. The proposed use will have detrimental impacts on the surrounding neighborhood. If managed appropriately the impacts of an appropriately scaled boarding and rooming house could be adequately mitigated. This proposal is for four large-scale boarding and rooming houses on the same property in an area dominated by family-oriented dwellings. The concentration of such a large student population in a small area would inevitably change the character of the neighborhood. Neighbors of other housing developments containing a concentration of students have experienced detrimental impacts such as noise, traffic and parking congestion. These impacts would also be presented by the proposed development to a greater degree, commensurate with the size of the project.
98. Construction of the development with four bedroom suites will result in structures that could not be feasibly converted to legal multi-family dwellings if the original purpose for the use is abandoned. Given the novelty of the proposed use in Bellingham, the lack of coordination with WWU on development of housing intended to accommodate its students, the distance of the proposed student housing from WWU and the inability of any property owner to guarantee perpetual management and maintenance of the property consistent with conditions necessary to adequately mitigate the adverse impacts of the proposed use, there is no guarantee that the proposed use will remain viable for the life of the structures.
99. The proposed use of four boarding and rooming house/dormitories is not appropriate for the site. The development should be modified to provide multi-family dwelling units with not more than three bedrooms, consistent with the Residential Multi zoning of the property, and in a manner that is compatible with the essential character of the neighborhood.

HEIGHT VARIANCE
100. The Applicant proposes to locate two of the four buildings, each approximately 58 feet in height under height definition No. 1, between 90 and 200 feet from properties zoned residential single. They request a variance from the 35-foot height limit imposed on structures located within 200 feet of property which does not have a Planned designation.
101. The proposed buildings would have a ground floor cut into the hillside and four floors above. The ridgelines of the roofs would be oriented in a north-south direction, parallel to the bluff and Puget Street to the east.
102. Variance criteria are set forth in BMC 20.18.010. They are: 1. Because of special circumstances, not the result of the owner's action, applicable to the subject property, (including size, shape, topography, location, or surroundings) the strict application of the provisions of this ordinance is found to deprive the property of rights and privileges enjoyed by other property in the area and under the identical land use classification; 2. The granting of the variance will not be unduly detrimental to the public welfare nor injurious to the property or improvements in the vicinity and subarea in which the subject property is located; and 3. The subject property cannot be reasonably used under the regulations as written.
103. As justification for the height variance the Applicant states that there are exceptional circumstances affecting the property, including topography and existing vegetation, the 100-foot wetland buffer, the 200-foot height restriction, and the land area required to be dedicated for Consolidation Avenue. Together, the Applicant states, the land use encumbrances total 47.2% of the site. The Applicant also states that it could build a project on the site without a variance but that it would be more dense and consume a larger footprint, and would have a greater impact on the neighbors. It states that it could build structures up to the 20-foot setback from Puget Street which would extend further above Puget Street and have a greater impact on the views of the residents on Puget Street. It also states that revisions to the site plan that were made to benefit the residences on Nevada Street would not be possible without a variance from the height restriction.
104. The Applicant provided view simulations and profiles of the proposed structures from two residences on Puget Street. These simulations show views from these two residences would include the roof and top floor of the proposed structures in the foreground, with some impact to the city and territorial views and a slight impact to water views. The profiles show the ridgeline of one of the buildings extending above Puget Street and the other building located entirely below Puget Street. The view impacts shown in the simulations would not occur if the height of the buildings was restricted to 35 feet within 200 feet of the property line. The Applicant states that it could locate 35-foot high buildings 20 feet from the property line adjacent to Puget Street which would have a greater impact on the Puget Street residences than the proposal. However, the slope below Puget Street is a geologically hazardous critical area. Without a demonstration that the requirements of BMC 16.55 relating to geologically hazardous areas are satisfied there is no guarantee that development on the slope may occur.
105. BMC 20.38.050 does not allow unlimited height within Planned Residential areas. It provides that the official who approves the permit determines the final height standards for the portion of the site that is not within 200 feet of an area not designated Planned.
106. There are special circumstances applicable to this property, including the topography and the wetland buffer, which constrict the developable area of the site.
107. The location of the proposed structures on a downslope from the Residential Single property reduces the impact of height within the 200-foot restricted area. Allowing an increase in height will not be unduly detrimental to the public welfare or to the other properties in the area if the height at the ridgeline (highest point) of the roof remains below the elevation of Puget Street (at centerline), thus avoiding view impacts and impacts arising from the bulk of the proposed structures to the Residential Single zone.
108. Without a variance the bulk of the proposed development would be pushed to the west, imposing a greater impact on the properties along Nevada Street and Marionberry Court, although alternate designs are possible which would either reduce the density of the project or increase the height of the structures outside the restricted area. Increasing the height of the structures to the west is not a reasonable alternative as it would not be compatible with the existing neighborhood character. Reduction in the density of the property below a certain level would be inconsistent with the Comprehensive Plan as it would hinder the City's ability to accommodate planned growth and provide an affordable housing mix.
109. Allowing an increase in height for the easterly buildings, in a manner that is compatible with the neighborhood character, and which will not impose adverse impacts on the Puget Street residences, will provide for reasonable development of the site that is consistent with the Comprehensive Plan and Residential-Multi general use type, while avoiding restrictions that are not necessary under the circumstances present on this site.

CRITICAL AREAS
110. Critical areas, including geologically hazardous areas and wetland/wetland buffer areas, are located on the subject site. Critical areas permits are required for the proposed development .
111. Critical areas regulations are set forth in BMC 16.55. BMC 16.55.070 provides that any proposal to alter any critical area and/or required buffer, requires a critical area permit unless one of the exemptions set forth in the Chapter applies to the activity.
112. BMC 16.55.090 requires critical area reports prepared by a qualified professional. Critical areas reports were prepared for the proposal by Geo Engineers (geologically hazardous areas) and Miller Environmental Services, LLC (wetland/wetland buffer areas.)
113. Pursuant to BMC 16.55.110 the City determines whether the proposed activity and mitigation, if any, is consistent with the provisions of Chapter 16.55.
114. BMC 16.55.180 provides that critical areas reports and decisions to alter critical areas must rely on best available science to protect the functions and values of critical areas and must give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish, such as salmon, steelhead, cutthroat trout, and their habitat. "Best available science" is defined as that scientific information applicable to the critical area prepared by local, state, or federal resource agencies, a qualified scientific professional, or team of qualified scientific professionals that is consistent with criteria established in WAC 365-195-900 through 365-195-925. The City determines whether the information received during permit review is reliable scientific information based upon whether it displays the characteristics of a valid scientific process, including methods that are clearly stated and reproducible and standardized or otherwise appropriately reviewed to ensure reliability and validity; that conclusions are based on reasonable assumptions supported by studies an d consistent with the general theory underlying the assumptions and the conclusions are logically and reasonably derived from the assumptions and supported by the data presented; the data have been analyzed using appropriate statistical or quantitative methods; data collection locations are accurately mapped or surveyed; the information is placed in proper context; assumptions, techniques, data and conclusions are appropriately framed with respect to the prevailing body of pertinent scientific knowledge; and the assumptions, techniques and conclusions are well referenced with citations to relevant, credible literature and other pertinent existing information.
115. BMC 16.55.180D provides that if there is an absence of valid scientific information or incomplete scientific information relating to a critical area leading to uncertainty about the risk to critical area functions of permitting an alteration of or impact to the critical area the City shall take a "precautionary approach" that strictly limits development and land use activities until the uncertainty is sufficiently resolved.
116. BMC 16.55.190 provides that any action taken to alter a critical area pursuant to Chapter 16.55 shall result in equivalent or greater functions and values of the critical areas associated with the proposed action, as determined by best available science. All developments and actions must be designed and constructed in accordance with mitigation sequencing as provided in BMC 16.55.250, to avoid, minimize, and restore all adverse impacts. Applicants must first demonstrate an inability to avoid or reduce impacts, before restoration and compensation of impacts will be allowed. No activity or use is allowed that results in a net loss of the functions or values of critical areas.

GEOLOGICALLY HAZARDOUS AREA
117. Geo Engineers prepared three documents relating to the geologically hazard areas located on and adjacent to the property. An April 9, 2013 letter addresses soil conditions and states preliminary findings. An April 29, 2013 report provides a geologically hazardous area site assessment and a letter dated June 20, 2013 provides additional information regarding geological conditions for a proposed pedestrian path in the Consolidation Avenue right-of-way.
118. BMC 16.55.410 categorizes geologically hazardous areas in accordance with the type of hazard(s) applicable to that area, including erosion hazard, landslide hazard, seismic hazard or mine hazard. Landslide hazard areas are described in BMC 16.55.420B and include, among others, slopes with an incline equal to or greater than 40% or 22 degrees, not including certain areas such as lands where public infrastructure and its supporting elements have been developed, resulting in the steep slope; and areas depicted as having high landslide potential within the landslide hazard areas section of the Geologic Hazard Areas Map Folio, Bellingham, Washington, 1991.
119. The Geo Engineers April 29, 2013 report indicates that the landslide hazard area located in the eastern one-third of the subject property and within the 46th Street, Puget Street and Consolidation Avenue rights-of-way are likely the result of the construction of Puget Street. This area is also identified in the City's Geologic Hazard Areas Map Folio as a landslide hazard area.
120. Geo Engineers' reports for this site are preliminary because final designs for the project have not been prepared. BMC 16.55.440 requires specific geotechnical information regarding the site and proposed construction that won't be available until final site designs have been prepared.
121. BMC 16.55.460 provides that the minimum buffer from a landslide hazard area shall be equal to the height of the slope or 50 feet, whichever is greater, but allows buffer reduction to a minimum of 10 feet when a qualified professional demonstrates that the reduction will adequately protect the proposed development, adjacent developments and uses and the subject critical area. The buffer may also be increased when necessary to prevent risk of damage to proposed and existing development.
122. BMC 16.55.460(2) allows alterations of an erosion or landslide hazard area or buffer only for activities for which a hazards analysis is submitted and certifies that the development will not increase surface water discharge or sedimentation to adjacent properties beyond predevelopment conditions, decrease slope stability on adjacent properties, or adversely impact other critical areas. Design standards for development within erosion or landslide hazard areas or buffers are specified in BMC 16.55.460(3). These standards include not decreasing the safety factor for landslide occurrences below one and one-half for static conditions and 1.2 for dynamic conditions; clustering structures and improvements to avoid geologically hazardous areas and other critical areas; minimizing alterations to the natural contour of the slope, tiered foundations to conform to existing topography; locating structures to preserve the most critical portion of the site and its natural land forms and vegetation; not creating a greater risk or need for additional buffers on neighboring properties; a preference for retaining walls over graded artificial slopes; and minimizing impervious lot coverage.
123. City staff has recommended that a critical areas permit for alteration of the geologically hazardous areas not be issued at this time because final designs have not been provided and the Applicant has not demonstrated compliance with the applicable criteria and standards. Supplementation of the Geo Engineers report will be required to ensure that the assumptions of the preliminary report will be maintained after final design.
124. Geo Engineers report indicates that additional details will be required before it may issue its final report for the project.
125. The Applicant indicated that it agreed with Staff's recommendation that the critical areas permit for geologically hazardous areas should be deferred until after final designs have been prepared for a building permit.

WETLANDS/WETLAND BUFFER
126. Miller Environmental Service, LLC prepared a critical areas assessment for the wetlands and fish and wildlife habitat conservation area on the site. This report is dated April 15, 2013. It identifies one wetland on the property along the northern edge, adjacent to the City's open space tract, which it describes as Palustrine forested and rates a Category III for functions, but because it is a mature forested wetland it rates as a Category I. It indicates a score of 33 using the Department of Ecology rating system with a habitat score of 17. The functional value assessment indicates low scores for water quality, hydrologic and habitat functions.
127. The minimum required buffer for a Category I wetland is 100 feet. The Applicant proposes buffer averaging to reduce the buffer in two locations, to approximately 72 feet in one location and to approximately 77 feet in another location.
128. Miller Environmental Service provided a supplement to its report on June 20, 2013 in response to questions from the Planning Department. This response indicates that the proposed buffer averaging will not reduce functions or values of the wetland or buffer area and that the buffer additions are equal in size to the buffer reductions. It indicates that the additions to the buffer are vegetated with native trees, shrubs and herbaceous vegetation.
129. BMC 16.55.340 provides specific regulations applicable to wetland buffers. This section provides for a minimum buffer width of 100 feet from the wetland edge for Category I wetlands that have a low level of function for wildlife habitat. It provides that any modifications to the buffer must be based on the specific wetland functions, site and/or watershed characteristics, location of the wetland within the watershed or subbasin, and the proposed land use.
130. The buffer of a Category I wetland may not be reduced, but it may be averaged if all of the following criteria are met: the buffer averaging does not reduce the functions or values of the wetland; the total area contained in the buffer area after averaging is no less than that which would be contained within the standard buffer, and all increases in buffer dimension for averaging must be parallel to the wetland boundary; the wetland contains variations in sensitivity due to existing physical characteristics or the character of the buffer varies in slope, soils, or vegetation; the buffer width is not reduced in any location to less than 50% of the standard width or 35 feet, whichever is greater; and there are no feasible alternatives to the site design without buffer averaging.
131. The proposed buffer reductions would allow the location of curved driveways within or adjacent to the buffer area. These curved areas are the most northerly portions of the access drives that lead to and from parking for the proposal. The areas that would be added to the buffer are adjacent to the areas of reduction. The westerly addition is located between the driveway and the residences on Marionberry Court.
132. The wetland and buffer vary in slope, from 390 feet of elevation at the east end of the buffer and 290 feet of elevation at the west end. The proposed buffer reduction is 25% on the east side and 21% on the west driveway loop.
133. The driveways are designed to satisfy grade, width and turning radius requirements for emergency vehicles. These design considerations resulted in the proposal to average the buffer.
134. BMC 16.55.250 provides for mitigation sequencing for impacts to wetlands and buffers. Applicants must demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize impacts to critical areas. The sequential order of mitigation for alterations is: avoidance, minimization, rectifying, restoring, reducing over time by preservation and maintenance, compensating, and monitoring. Mitigation may include a combination of these measures.
135. The Applicant proposes to mitigate the buffer impacts by averaging and by placing a conservation easement on the wetland and buffer areas.
136. Temporarily disturbed areas will be rectified. Additional vegetation capable of establishing and succeeding in a mature forest will be planted within the existing and new wetland buffer areas. A five-year monitoring and maintenance period is required pursuant to BMC 16.55.260.
137. BMC 16.55.340G requires a building setback of 15 feet from the edge of wetland buffers for buildings and other structures, unless otherwise provided in the chapter, to protect the root zones of trees in the buffer. Pervious ground surfaces such as driveways and parking may be permitted within the setback area if designed as a pervious system as defined in BMC 16.80.050. The Applicant indicates it is not designing the surfaces as a pervious system due to the types of soils located on the site.


MULTI-FAMILY RESIDENTIAL DESIGN REVIEW
138. BMC 20.25 provides for Multi-family Design Review of projects consisting of three or more new residential units. Design review decisions are based on consistency with the adopted multi-family residential design handbook.
139. The Multi-family Residential Design Handbook (Handbook) provides that the purposes of multi-family residential design review are to:
      1. Promote acceptance of new multifamily residential developments and infill housing through a commitment to good design and respect for the scale of existing neighborhoods.
      2. Improve the living environment and design characteristics of Bellingham’s multi-family housing.
      3. Preserve and enhance the special qualities of existing neighborhoods and create attractive, safe and viable new neighborhoods.
      4. Encourage creativity in site planning and architecture.
      5. Maintain environmental quality through preservation of natural features and consolidation of open spaces.
      6. Increase awareness of what constitutes good design and assist the applicant in achieving these objectives.
140. The Handbook lists a series of design elements that must be addressed, requirements for each element and guidelines and examples that assist the developer to achieve the required standard.
141. The Site Design portion of the Handbook consists of 13 separate elements. Orientation is the first element. The Handbook requires that buildings be oriented to public streets and open spaces in a way that corresponds to the site's natural features and enhances the character of the street for pedestrians. The Applicant states that the clubhouse is oriented to the street at the entrance to the development, with the four buildings set back from the property lines; an internal sidewalk system will connect buildings and parking to the clubhouse and Consolidation Avenue, landscaping, signage and lighting will emphasize pedestrian entry from the street; buildings and parking areas are oriented to the slope to provide the least site disturbance possible, thus corresponding to the site's natural features and allowing a significant amount of open space; and the buildings are set back from property lines to have minimal impacts on neighbors and to preserve solar access. City staff agrees with the Applicant that the proposal is consistent with site design requirements.
142. The second design element is Neighborhood Connections. The requirement is to provide functional vehicular and pedestrian connections to existing neighborhoods. The Applicant states that it is providing interconnected circulation systems including pedestrian connections to the street, buildings, parking areas, and recreation areas, including a street and sidewalk system within the project and a trail in the Puget and Consolidation rights-of-way that will connect a pedestrian route between other adjacent developments and neighborhoods. City staff states that neighborhood connectivity will be achieved provided the footpath/trail is constructed to an acceptable standard in a location that provides the maximum opportunity for use by the general public.
143. The next element is parking location and design. The requirement is to minimize the impact of parking facilities on the fronting street, sidewalk and neighboring properties by designing and locating parking lots, carports and garages so that they do not dominate the street front. The Applicant states that it is locating parking lots along the existing contours of the site to minimize land disturbance, allowing retention of the most existing landscape possible. It also states that it has broken up the parking lots into smaller lots to provide easy access for pedestrians, that only one curb-cut will provide access to all of the parking, the lots are located as far as possible from property lines, that landscaping will be placed so that parking is not dominant from the street and that the lots will be screened with landscaping. City staff states that the parking lots should be broken up into smaller groupings of spaces of no more than eight spaces, with landscaping between each grouping, and that additional parking lot trees are required to screen parking from the residents.
144. The Handbook's Clearing and Grading element requires preservation of significant natural features whenever feasible and minimizing changes to natural topography. The Applicant states that the site plan, including buildings, roads and sidewalks, is designed to follow existing grades and that they propose taller buildings to have the smallest footprint. It states that it is terracing the parking lots and buildings to avoid having one long sloped lot and that the terraces will be divided into smaller steps with retaining walls as low as possible. City staff recommends design features and review for retaining walls. Public comment focused on the amount of clearing and grading required for the proposal and impacts of clearing and grading on the surrounding neighborhood and stormwater drainage.
145. The next element is Fences and Walls Adjacent to Streets. The requirement is: When using fences or walls, use designs and materials that will maintain a pedestrian scale along streets or public walkways. The Applicant states that it is not proposing any fences along the street, that it is using landscaping, both existing and enhanced plantings, adjacent to streets and neighbors. It anticipates installing fencing along the perimeter of the property adjacent to the back yards of the neighbors on Nevada Street.
146. The requirement for Open Space and Recreational Area is to locate and design useable space to encourage its use for leisure and recreational activities. The Applicant states that it is combining the open space on site and adjacent to the site to provide for larger contiguous open spaces. It states that a total of 21.4% of the existing site will remain in a natural state, and an additional 35.2% of the site will be landscaped as either useable or passive open space. 6.32 acres of the site is either left natural or re-vegetated and the 15 acre open space adjacent to the site connects to other open spaces. The Applicant states that walkways will connect the open spaces and the clubhouse, which will have indoor recreation activities; that the common useable space will be landscaped to buffer ground floor windows, streets, neighbors and service areas defining the private useable space; and private useable space will be oriented to receive sunlight. Public comment expressed concerns that the Applicant's proposal for outdoor recreation facilities such as a hot tub and fire pit, would have detrimental impacts on the surrounding neighborhood and that they may present health and safety issues.
147. Mailboxes, bus stops, and other functions are required to be located and designed to promote ease of use and safety. Lighting is required to be adequate for the function without creating excessive light and glare or light levels. The Applicant states that it has reviewed the location of mailboxes with the US Postal Service and that there will be one large common mailbox for all residents located within the clubhouse allowing for package delivery to be managed by the staff. It states that a professionally designed site lighting plan will be provided for lighting entries, walkways and parking areas, minimizing the impact of parking lot lighting while providing safety for the residents, and directing site lighting away from the sky and neighbors. The Applicant states that the site is close to the WWU/Lincoln Creek Park n 'Ride and it may incorporate its own shuttle bus if the demand and need arises. The Applicant states that bike racks will be located under cover and scattered evenly around the sites so they are convenient to the residents, and they will be lit.
148. The requirement for Trash and Recycling Storage is to provide adequate screening for these facilities. The Applicant states that there will be two enclosed trash areas located between the buildings and far from the streets and neighbors, that these will be fully covered walk-in facilities, and will allow for visibility inside. It states that they will be designed and landscaped to serve multiple purposes, including as a viewpoint, and will be mostly buried and made of concrete.
149. The Landscape Design -- Overall Project element requires that the development provide landscaping that is in scale with the buildings and spaces and compliments the function of the space. The Applicant states that the site landscaping will be professionally designed and will incorporate the following approaches and features: terraced retaining walls, larger nursery stock, a trellis or arbor, planter walls, landscape open areas created by building modulation, include common areas, special planting and lighting at entries, maximize tree retention, retain and enhance natural greenbelts, use drought-tolerant plantings, planning for the mature size of trees so as not to interfere with windows, decks and lighting, landscaping will define and enhance the various outdoor areas both active and passive, and the areas between buildings, parking and the site boundaries will be landscaped. City Staff states that the proposed landscape plan lacks enhancement of the retention areas with evergreen trees, vertical height adjacent to the structures, and definition of the onsite usable areas. It also states that proper landscaping choices along Puget Street could provide a natural buffer that also respects the views of the Puget Street residences. Staff recommends that the proposal be conditioned to ensure that the highest quality design, location, and plant material is used.
150. The requirement for the Landscape Design -- Parking Areas element is to use landscaping to help define, break up, and screen parking areas. The Applicant states that it will install canopy trees with parking areas and that it is proposing to have up to 20 spaces in a row (as per code) without landscaping, rather than the eight spaces that is in the guidelines. It states that parking will only be seen by its residents, not by the neighbors, due to the natural grade of the land, the large setbacks, and the significant vegetation. It states that less landscape islands means more contiguous landscaping and open space and less land disturbance. The landscaping will be protected with wheel stops or curbs and there will be landscaping between the buildings and sidewalks/parking areas. City staff recommends that the landscaping associated with parking lots be designed to define, break up, and screen parking areas and that the Applicant's landscape plan lacks sufficient landscaping within the paved parking areas as guidelines suggest that a landscape bed should be provided to separate at least every eight parking stalls. Staff also indicates that additional parking lot trees are necessary to break up and screen the parking areas from the residents of the project. Public comment from neighbors in the northwest portion of the proposal expressed concern that the parking areas would not be adequately screened and that headlights would shine onto their properties.
151. The signage element requires that the amount of signage needed to identify the multi-family development be minimized. The Applicant states that it will incorporate internal directional signage for wayfinding within the site and the signs will fit into the architectural and landscape design of the overall project, that any lighting will be indirect and downward directed, the scale will be as small as possible to direct the flow of pedestrians, vehicles and emergency vehicles, and they will be incorporated into the buildings and landscape whenever possible and will be low if freestanding.
152. Sidewalk design is required to be consistent with the existing or proposed street design for the subject area. The Applicant states that it has a very small amount of sidewalk that will be on the street frontage or in the right-of-way, but will meet or exceed all guidelines, that it will be providing sidewalks on-site that will also follow the guidelines and the trail system in the Consolidation Avenue and Puget Street rights-of-way will be designed following the design principles in the guidelines.
153. Site Drainage requirements provide that when open storm water facilities are proposed to be located on the site, negative impacts on natural site features must be minimized and they are to be incorporated into the overall landscape scheme. The Applicant states that the only visible drainage feature will be an approximately 11,000 square foot raingarden in the western portion of the site that will be integrated into the landscaping and that retaining walls required uphill of the raingarden will follow overall project retaining wall guidelines.
154. The Building Design section of the Handbook has 10 elements. The first of these is Neighborhood Scale. The requirement is that the scale of those portions of the building facing an existing neighborhood shall conform to the scale established in the neighborhood or the scale identified for the district. The Applicant states that it is proposing fewer and taller buildings coupled with very large setbacks from property lines instead of having two-story buildings close to property lines in order to increase the amount of light, air, and landscaping between the buildings and the surrounding homes which will minimize the impacts. It states the roofs of the upper buildings will be at or lower than Puget Street and the neighborhoods to the south and north will not be able to see the buildings due to the existing and new vegetation. It states that the buildings will be modulated into single-family sized sections and will have elements, including windows and balconies which are sized to match those in the surrounding neighborhoods. City staff states that the adjacent neighborhood is primarily developed with one and two-story single-family residences and the five-story buildings do not provide the required scale elements identified in this requirement. However, staff believes that the site layout of a development can also provide a transition of scale between new and existing development and that the factors that should be taken into consideration with this proposal are the retention of existing vegetation, topography, and the distance buildings are placed from the property line. Staff indicates that the proposal provides adequate transition between the five-story buildings and the residences along the east, south and southwest portion of the site and that relocating the structures away from the Nevada Street residences increased the ability to preserve the vegetation along a portion of the western boundary. Staff states that the height of the existing vegetation is sufficient to provide a scaled transition from the residences and the proposed buildings but should be enhanced with evergreen plant material to address the seasonal loss of foliage. Staff indicates that the proposal fails to provide the required transition in the northwest corner of the site and adjacent the lots next to the raingarden and western parking lot as the area between these facilities and the residences will be cleared and graded in its entirety and the proximity of these facilities to the neighboring lots leaves little opportunity to provide a vegetated transition. Public comment stated that five-story buildings were not in keeping with the scale or character of the neighborhood.
155. The next Building Design element is Neighborhood Compatibility. The requirement is that new buildings should reflect some of the architectural character of the surrounding buildings when locating in a neighborhood where the existing context is well defined. The Applicant states that it is using similar proportioned roof forms, architectural style, materials, patterns and proportions of windows, and architectural details and features, and entry configurations are somewhat similar in that lower units will be accessed directly from the fronts of those units and will function like smaller homes with an entry and patio. It states that each building will have nine separate entries, so they will be spread out more like in single-family neighborhoods, and that the building closest to the neighbors is the clubhouse which is the size of a single-family home. City staff states that the building designs adequately address neighborhood compatibility. Public comment focused on the size and scale of the development as being incompatible with the neighborhood.
156. The next element is Privacy. The requirement is to orient buildings to provide privacy, to the extent practical, both within the project and for adjacent residential uses. The Applicant states that it is locating windows so that residents cannot look into another unit; providing large setbacks so that these units will not look into neighboring residences; parking areas, common recreation areas and walkways will be screened by grade changes and landscaping and decks and patios will be separated by low walls or landscaping. It states that the buildings and landscaping will provide for privacy of the neighbors and units and still achieve on-site safety with eyes on the common areas. City staff indicates that additional consideration is necessary to maximize the privacy of the adjacent residences, including maximum retention of vegetation along the western and southern portion of the site and the retention of vegetation between the stormwater facility and the parking lot in the northwest corner should be considered. It states that enhancing the areas with existing vegetation that are proposed to not be disturbed will provide a natural buffer and increase the privacy of adjacent properties; and that installation of fencing along the western and northwestern property lines would also enhance privacy of the abutting single-family residences. Public comment expressed concerns for the privacy of neighboring residences, including the Puget Street residences whose homes would face rear decks of the upper buildings if they were located above the level of Puget Street and the bluff, and the residences to the west and northwest whose backyards are immediately adjacent to the proposal.
157. The requirement for the Fašade and Articulation element is to use architectural features that break up blank, flat walls and roofs and give the building a human scale. The Applicant states that the buildings are divided into modules of five on the downhill or west facades and four on the uphill or east facades. It states that the modules are one unit wide, or the size of a single-family house, and that vertically, they are divided into three tiers, using material and color changes, and balconies to provide the separation. It indicates that the common Northwest Contemporary theme ties the elements together and the roof lines are broken up along the length of the buildings with the use of deep articulation. The Applicant also states that it is incorporating many architectural details to provide visual interest, including one-story entry elements, entry bridges at the uphill sides, windows and doors spaced the same as in single-family homes, trim to articulate the building fašade, deep overhangs and material and color variations that differentiate the ground floors from the upper floors.
158. The Windows element requires articulation of the building fašade by using well-proportioned and spaced windows. The Applicant states that it is using vertically proportioned windows that are divided and trimmed around their frames, not bay or boxed windows, and these windows are similar to those in nearby single-family homes.
159. Building Foundations are required to blend visually with the site. The Applicant states that it is stepping the buildings to blend closely with the site contours, allowing for a minimum of exposed foundation walls.
160. Entries are required to clearly define the main entrance of a building, be oriented to a pedestrian walkway, and enhance safety through the lighting and visibility. The Applicant states that it is providing three types of entries in each building, with two main entries on each on the uphill side, accessed by a bridge from the parking lots and that these will have inviting covered entrances close to the parking lots and covered bicycle areas. It states that there are two secondary entrances in each, on the sideslopes of the north and south facades, each with a unique covering element. Each ground level unit on the west side will have its own direct entry accessed by a front patio. It states that the entries will be spread out for better access and to allow for entries to be visible from various locations. It states the walkways that access entries will be well lit and separated from the parking lots, and that the project will not have any hidden corridors or stairways.
161. The Building Materials element requires the use of durable exterior finish materials that provide visual detail, reduce the perceived scale of the building through texture or pattern and appear similar to those used in the neighborhood. The Applicant states that it is using painted horizontal and vertical siding and panels trimmed with battens, and that the materials and colors will be coordinated with the modulation of the building.
162. The requirement for Garages and Accessory Buildings is to design garages and carports in a way that does not dominate the streetscape or obscure building entries; and that accessory buildings shall be subordinate in scale to the main buildings. The Applicant states that it is not using garages or carports; that driveways will be as narrow as possible to meet codes and allow for emergency vehicle access; that they are providing shelters for covered bike storage near each building main entry that will be small in scale and of the same character as the buildings.
163. The final element is Additions to Existing Structures or Sites with Existing Buildings and does not apply to the proposal.

STAFF RECOMMENDATION
164. City staff has recommended approval of the Planned Development, Variance, Wetland portion of the Critical Areas Permit and Multi-family Residential Design Review permits subject to conditions. It recommends deferral of the Geologically Hazardous Areas portion of the Critical Areas Permit until after final plans have been submitted and a final assessment has been completed by the qualified professionals.
165. The proposed Conditions of Approval recommended by City staff are included in Exhibit B to the Staff Report. They include conditions relating to restriction and management of the use, design of retaining walls, construction of the pedestrian footpath within the Consolidation Avenue and Puget Street rights-of-way, a survey of existing grades and building heights, compliance with Bellingham Municipal Code standards, provision of bicycle parking facilities, a tree inventory performed by an arborist, a tree preservation plan, a forest restoration plan, alternative designs for parking and the stormwater facility to reduce clearing and grading on the site, a clearing, grading and erosion control plan, a landscaping plan, construction of a portion of Consolidation Avenue and dedication of an additional 20 feet of right-of-way, installation of sewer and water facilities, a Stormwater Site Plan, a Master Lighting Plan, compliance with Fire Code, payment of impact fees, screening of garbage and recycling facilities, compliance with Crime Prevention Through Environmental Design strategies, a native vegetation plan for the wetland buffer, a five-year maintenance and monitoring plan for the wetland mitigation with financial surety, a conservation easement for the wetland and buffer, construction and permanent fencing and signage for the wetland and buffer, and obtaining a critical areas permit for the geologically hazardous area prior to issuance of a building permit.
166. The Applicant stated that it agrees with the recommendations of Staff except for those conditions listed in the letter from Bradley D. Swanson, Attorney for Applicant, dated September 30, 2013, relating to texturing of block walls, site grading in advance of building permits, variance running with the land, language of a recommended covenant, design of the footpath, and number of bicycle stalls.
II. CONCLUSIONS OF LAW
1. The subject property is zoned for multi-family residential development. Although the surrounding neighborhood has developed with primarily single-family residences multi-family development is appropriate on this site due to its zoning designation and the goals and policies of the City's Comprehensive Plan, which provides for the efficient use of land and provision of housing units in adequate numbers to accommodate the City's current and projected population.
2. Uses proposed for location in an area with a Planned use qualifier, other than a single-family residence or an existing non-conforming use, must obtain Planned Development approval. This approval requires satisfaction of the standards contained in BMC 20.38. Uses which are not appropriate for the site or the area in which they are proposed to be located may be excluded.
3. In order to determine whether a use that is conditional in the Residential-Multi zone is appropriate in a Residential-Multi, Planned area, the standards applicable to the conditional use, as provided in BMC 20.16.010 and .020 should be considered. In this case, the requested Boarding and Rooming house/Dormitory use is a Conditional use in the Residential-Multi general use type. The Applicant requests four of these uses on the site, as the use is defined as "a structure" which is used for lodging of persons other than families.
4. The proposed use of the site for four Boarding and Rooming Houses, with units consisting of four bedroom/bathroom suites, kitchens, living areas, laundry facilities, and decks or patios, for a total of 576 students would be an increase in the density of the property over that allotted to it in the recorded Cedar Ridge Plat, 176 units. The use, at the requested level of intensity, is not compatible with the essential character of the neighborhood. It would impose detrimental impacts on the surrounding neighborhood in the form of traffic congestion and safety hazards, spillover of parking onto residential streets, noise, and loss of privacy, to a greater degree than standard multi-family residential units at the density applicable to the site. Conversion of the units to multi-family use in the future, should the property owner choose to market to a different type of tenant, or in the event the Applicant or its successor was unable to continue to provide the necessary services to operate the use, would not be practical and would require substantial structural modifications to the buildings.
5. The proposed Boarding and Rooming House use at the proposed level of intensity is not appropriate for the site.
6. Student housing which is proposed by the Applicant can be provided in standard multi-family units. Because the Applicant intends to rent the units to unrelated individuals each unit must be limited to no more than three persons unless they can otherwise satisfy the definition of "family." Each unit should be limited to no more than three bedrooms to avoid illegal occupancy by more than three unrelated individuals.
7. The proposed development satisfies the requirements of BMC 20.38 for open space, usable space and setbacks.
8. BMC 20.38 contains no expressed height standards except for buildings located within 200 feet of a residential zone that is not designated Planned. The Planning Director (or Hearing Examiner) may impose a height restriction if necessary to protect neighboring properties, conform with existing development in the area, preserve natural resources or sensitive environments, provide for orderly development or conform with the comprehensive plan. The buildings proposed by the Applicant are approximately 58 feet in height. They are much taller than the surrounding one and two-story houses. However, the height of the buildings allows larger setbacks from neighboring properties and retention of more existing vegetation which provides a buffer for the surrounding residences and provides greater protection for the critical areas on the site. The buildings should not impair views from the surrounding residences and will not be visible from many of the neighboring properties. With adequate provision for landscaping, setbacks and retention/restoration of the forested slope the height of the proposed buildings is not excessive.
9. Parking facilities consistent with BMC 20.32 and 20.38 are required. Additional parking should be provided on-site for management staff and to compensate for the loss of on-street parking on the abutting streets.
10. Full development of the abutting streets is not required due to the grade of Consolidation Avenue and the lack of access to Puget Street. A pedestrian facility in the rights-of-way, consistent with Parks and Recreation Department standards, is called for in the Neighborhood Plan and should be constructed by the Applicant in lieu of other street improvements.
11. As conditioned below the proposed development is consistent with the requirements of BMC 20.38 and should receive Planned Development approval.
12. The proposal for a variance from the height limitations of 20.38.050B(4) satisfies the variance criteria set forth in BMC 20.18.010 subject to the conditions set forth below. If limited to the elevation of Puget Street the height of the buildings will not be unduly detrimental to the single-family properties intended to be protected by the height limitation and location of the structures on the east side of the property allows greater protection for the residences to the west.
13. There is insufficient information to grant a critical areas permit for the geologically hazardous areas. A permit is required prior to land disturbance activities in this area and must be obtained.
14. The proposal satisfies the criteria for a critical areas permit for the wetland/ wetland buffer area. Averaging of the buffer as proposed is consistent with the requirements of BMC 16.55.340C(3) as it does not reduce the functions or values of the buffer; the total area of buffer is slightly greater after averaging, the wetland varies in sensitivity due to variation in the slope, the buffer reduction is less than 50% and less than 35 feet, and buffer averaging is required for location of access driveways that satisfy emergency vehicle turning radius requirements.
15. Mitigation sequencing was performed for the site and mitigation is provided in accordance with BMC 16.55.
16. A critical areas permit for wetland/wetland buffer areas on the site should be granted subject to the conditions set forth below.
17. Subject to the conditions set forth below the proposal satisfies the requirements for the elements of Multi-family Residential Design Review. Conditions are required to ensure functional pedestrian and vehicular connections to existing neighborhoods; to minimize the impact of parking facilities on neighboring properties, to preserve significant natural features of the site and minimize changes to the natural topography; to provide landscaping in scale with the buildings and spaces; to use landscaping to define, break up and screen parking areas; to conform to the scale of existing neighborhoods; and to provide privacy for adjacent residential uses.
18. 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.
III. ORDER
Planned Development approval, a Variance from Height Restrictions, a Wetland/Wetland Buffer Critical Areas Permit, and Multi-family Residential Design Review approval are granted for the subject proposal subject to the following conditions:

PERMITTED USES
1. The proposed use for Purpose Built Student Housing may be conducted on the site provided the units conform to the requirements for multi-family residential dwelling units and contain no more than three bedrooms per unit. The use of the property for four Boarding and Rooming Houses with 576 beds in 164 units, most of which contain four bedrooms, is not permitted.
2. The number of dwelling units on the site may not exceed 176, or the number of units to which the property is vested, whichever is less; provided that the number of units is limited to 164 unless the Applicant obtains a Transportation Concurrency Certificate for the requisite additional trips and complies with all other requirements of the Bellingham Municipal Code arising out of an increase in the number of units.
3. Occupancy of each dwelling unit is limited to one family, as defined in the Bellingham Municipal Code, which, with exceptions for disabled individuals and children with familial status, allows no more than 3 unrelated individuals.
4. Use of the property for the proposed Purpose Built Student Housing shall be consistent with the materials and representations submitted by the Applicant in support of the proposal, including, but not limited to, the following:
      a) Professional, on-site, 24-hour management,
      b) Lease agreements that establish a no-tolerance policy for unacceptable behavior that could result in undue disturbance to other residents and neighboring properties,
      c) Provision of a shuttle service for residents to and from the Park and Ride facility, WWU, downtown, and other locations, to reduce traffic to and from the site, and
      d) Provision of parking spaces at a ratio of at least 0.75 parking spaces per resident/staff (or the number required in Paragraph No. 9 below, whichever is greater).

SITE PLAN
5. Development on the site shall be generally as shown on Exhibit A, attached hereto, except as revisions are required to comply with the requirements of this Order, the Bellingham Municipal Code or a Critical Areas Permit issued with respect to the Geologically Hazardous Areas.
6. Any substantial modifications to the site plan or to the proposed structures will require additional review for compliance with Design standards and may require further review for Planned Development approval. The Director may determine that changes are significant enough to require a new Planned Development process.
7. A final site plan included in a building permit application shall include locations of buildings, driveways with landscaped medians, and parking; access location and design, preservation areas, continuous internal pedestrian connectivity from each building on site to the sidewalk in Consolidation Avenue; location and design of the footpath in the Consolidation Avenue and Puget Street rights-of-way; the location of any open stormwater facility; and the location of all usable and open spaces.
8. Outdoor recreational facilities, such as spas, pools, fire pits, sports courts, and other facilities, shall be shown on the site plan and shall be located and designed so that they are screened from view and noise transmission to neighboring properties. These facilities shall comply with all applicable health and safety regulations. Any proposed fire pit shall be subject to Fire Department review and approval. If location of these facilities result in any significant modification to the site plan additional design review may be required.

PARKING
9. All parking facilities shall comply with the parking and loading area requirements for multi-family residential uses contained in BMC 20.38.050B(8). In addition, a number of parking spaces equal to the number of spaces that could be accommodated on the north side of the Consolidation Avenue right-of-way abutting the property, if it was developed, shall be located on site to provide adequate resident, employee and guest parking and to reduce spillover parking from the use onto neighboring residential streets. Landscaping of parking facilities shall be consistent with the landscaping conditions set forth in this Order.
10. Bicycle parking shall be provided to satisfy the demand generated by the occupants of the development. Bicycle parking shall be secure and weather protected and designed so that bicycles are reasonably protected from damage and may be securely locked without undue inconvenience. At least 88 long-term bicycle stalls shall be provided and distributed on the site so that residents and visitors of each building have convenient access. The design and location of bicycle parking/storage facilities shall be subject to review and approval of the Planning Department prior to issuance of a building permit.
LAND PRESERVATION/CLEARING AND GRADING
11. Prior to site disturbance, final development plans, and building permit applications, an ISA-certified arborist shall conduct a tree inventory and prepare a preservation plan for the portion of the property shown as the retention and transition areas and the Consolidation Avenue right-of-way, for the City's review and approval. The tree preservation plan shall identify trees to be preserved in both the retention and transition areas, measures to protect them during and after construction, and trees to be removed because they are or will become hazards or for other reasons identified by the certified arborist.
12. A restoration plan shall be developed by an ecological restoration specialist in conjunction with the project arborist. The restoration plan shall be submitted to the City for review and approval prior to any site disturbance. The restoration plan shall include restoring the forest around the entire perimeter of the property, the transition zone between the developed areas and the retained forest (Exhibit Q), and the Consolidation Avenue right-of-way where clearing occurs due to trail construction. The approved restoration plan shall be installed by the ecological restoration specialist. The restoration plan shall include:
      a) A high density of native trees, shrubs and ground cover species selected by an ecological restoration specialist.
      b) Mulch specifications and quantities.
      c) All elements of a complete planting plan such as, but not limited to, species, quantities, size, site preparation, mulch, and watering requirements.
      d) Provide the restoration plan on 24-inch by 36-inch sheet.
      e) A five-year maintenance and monitoring plan.
      f) A contingency plan in the event that there are additional impacts that will require restoration.
      g) A financial surety shall be required to cover 150% of all costs associated with the restoration plan. The surety shall be submitted prior to any site disturbance.
13. Grading and retaining walls shall be designed to significantly reduce the vegetation clearing necessitated by the grading plan shown in the preliminary engineering drawings and on Exhibit A. Taller retaining walls may be required to reduce grading and clearing in transition areas to retain vegetation.
14. Alternative designs for parking and the stormwater facility shall be proposed to the City to reduce vegetation clearing and grading on the site. Alternative designs include under-building parking, an underground stormwater vault that provides enhanced treatment, consolidating the units into fewer buildings or a smaller footprint, or other measures that would retain more of the existing forest canopy and understory vegetation and reduce site grading. An analysis of these alternative designs shall be submitted for review of the City prior to building permit application submittal and the result of this analysis and review by the City shall be incorporated into the final building plans prior to building permit applications.
15. A clearing, grading, and erosion control plan shall be submitted with the building permit application for concurrent review and approval by the City. The plan shall have all critical areas, including wetlands, wetland buffers, and geologically hazardous areas and buffers, as well as building setback areas from the buffers, clearly labeled. The plan shall also have all forest retention areas, as required by the City, clearly labeled. Clearing and grading limits, pre- and post-grading contours, grading and equipment storage and stockpiling, equipment access areas, and erosion control measures shall be on the plans(s) and marked in the field and inspected by City staff prior to any site work. If the project is done in phases that have been approved by the City, these elements are required to be shown on all the plans and marked in the field for each phase.

LANDSCAPING
16. A landscaping plan shall be developed for all areas excluding the forest retention and transition areas shown in Exhibit Q (attached hereto). Planting in those areas shall be accomplished through the restoration plan required above. The landscape plan shall be reviewed and approved by the City prior to issuance of any building permits. The landscape plan shall be in compliance with BMC 20.38.050B(9) and shall include:
      a) A mix of trees, shrubs, and ground covers for all areas to be landscaped. Select species appropriate for the site and site uses and are low maintenance.
      b) Tree species that will become tall to match the scale of the tall buildings.
      c) Larger tree specimens for landscaping along the western property line and include specific installation and maintenance specifications for installing larger specimens.
      d) All elements of a complete landscape plan including, but not limited to, species, quantities, size, site preparation, mulch, and watering requirements.
      e) A 24-inch by 36-inch sheet showing the landscape plan.
      f) Planting around any approved open stormwater facility for screening from the neighbors and the new buildings, ensuring that the long-term maintenance requirements of the facility are not compromised. Planting is required for all above-ground stormwater management features on the site.
      g) Landscaping in the designated usable spaces in a manner that maximizes the usable space and defines the area.
      h) A six-foot high cedar fence along any property line abutting the existing single-family residences on Nevada Street and Marionberry Court.
      i) Landscape islands that provide separation of every 15 or fewer parking stalls. These landscape islands shall include a minimum of one tree, shrubs, and ground cover and shall be provided in addition to any other required landscaping.
      j) Landscape screening shall also be provided in locations and in a manner as necessary to ensure that headlights from vehicles on driveways and in parking areas do not shine onto adjacent residential properties on Nevada Street and Marionberry Court.

STREETS, UTILITIES AND DEDICATION
17. Consolidation Avenue shall be constructed to three-quarter standard of a 28-foot street from its existing terminus to the entrance of the development.
18. Twenty feet of land across the full frontage of the property abutting Consolidation Avenue right-of-way shall be dedicated to the City of Bellingham for public utilities and right-of-way purposes.
19. All public and private sewer and water facilities shall be extended and installed as required and in accordance with engineering plans approved by the Public Works Department.

STORMWATER MANAGEMENT
20. A Stormwater Site Plan (SSP) shall be provided in conformance with the requirements of BMC 15.42, and shall be submitted for review and approval of the City. Facilities required by the SSP shall be installed in accordance with plans approved by the City.
21. Any open treatment and detention systems, including swales, rain gardens, and rock vaults, shall be designed to fit within the natural surroundings to the maximum extent practicable and be accessible for maintenance. Landscaping for these systems shall be designed by a licensed landscape architect and/or wetland biologist in accordance with the specifications listed in this Order. The facilities shall be designed to accommodate vegetation that will visually buffer the facilities from adjacent residential properties.

LIGHTING
22. The Developer shall submit a Master Lighting Plan (MLP) for review and approval by the City prior to or concurrent with building permit application(s). All outdoor lighting shall be sized and directed to avoid adverse impact and spillover onto adjacent properties and the offsite wetland and its associated buffer. Upward directed lighting is prohibited. The MLP shall provide the following information:
      a) A photometric site plan, drawn to scale, showing all buildings and parking areas, fixture and pole height, and include all proposed exterior lighting fixtures and foot-candle spread.
      b) Design specifications for all proposed exterior lighting fixtures shall include photometric data, cutoff devices, bulb wattage/type, and other descriptive information.
      c) Foot-candles for all outdoor lighting. Exterior lighting shall not exceed a 1.5 foot-candle per IES minimum lighting standards at the edge of the constructed footprint of the site.
      d) The lighting must be contained to the site to the maximum extent possible.
      e) All lighting shall be shielded and directed away from the wetland buffer.
23. The Planning and Community Development Director shall have the authority to reject proposed lighting and require a different standard if, in the opinion of the Director, the lighting can be provided with less foot-candle in a way that will not impact adjacent uses and will not compromise safety standards.

GARBAGE COLLECTION
24. Any outside trash and recycling facilities shall be screened on at least three sides and shall consist of similar building materials as the residential structures. The final location of these facilities shall be approved by Sanitary Services Company and shall not conflict with any performance standards in the Bellingham Municipal Code.

CRIME PREVENTION THROUGH ENVIRONMENTAL DESIGN (CPTED)
25. Prior to building permit issuance the developer shall submit the final building and engineering plans to the Bellingham Police Department for a CPTED review. The Police Department will review the plans and prepare a recommendation to the Planning and Community Development Director for review and approval. CPTED strategies shall be incorporated into the design of the building and associated parking areas to the greatest extent feasible, as determined by the Director.

CRITICAL AREAS
26. The wetland buffer may be averaged, as proposed, if necessary to locate access ways with sufficient width and turning radius for emergency vehicles. Buffer averaging shall comply with the provisions of BMC 16.55 and be consistent with the proposal and critical areas assessment report prepared for the proposal. The averaged wetland buffer shall be delineated, shown on site plans, and marked in the field in a manner determined by the Planning and Community Development Department.
27. Prior to issuance of any permits associated with the development a final mitigation plan shall be submitted for review and approval of the Planning and Community Development Department (PCDD) and shall include the following:
      a) A native vegetation plan for the areas within the remaining wetland buffer and the new buffer in order to enhance the existing buffer functions as documented in the April 15, 2013 Critical Areas Assessment Report by Miller Environmental Service, LLC. Upon completion of implementation of the native vegetation plan the Applicant or its designee shall contact the PCDD for inspection of the native vegetation. A Certificate of Occupancy for any building shall not be granted until an "as-installed" plan is submitted to and approved by the PCDD.
      b) A five-year maintenance and monitoring plan for the required mitigation specified above shall be submitted. Monitoring reports shall be submitted to the PCDD each year after approval and shall demonstrate at least an 85% success rate for all vegetation installed. Appropriate contingencies shall be specified and implemented as necessary to maintain the specified success rate.
      c) Prior to issuance of any permits associated with the development a financial surety for 150% of the cost to implement the mitigation plan specified above shall be submitted and approved by the City. (An assignment of funds or a bond may be utilized. Upon PCDD approval of completion of individual line items or project elements, those designated amounts may be released back to the Applicant.)
      d) Prior to issuance of any permits associated with the development a conservation easement across the wetland and wetland buffers (including new buffer areas) on the site, in a form approved by the City, shall be executed and recorded with the Whatcom County Auditor.
      e) Orange construction fencing shall be installed along the wetland buffer edges in order to avoid disturbance to wetland buffer areas. The Applicant or designee shall contact the PCDD to inspect the fencing prior to any additional site work or issuance of any permits associated with the development. Clearing of vegetation only as necessary to install the construction fencing is allowed.
      f) Prior to occupancy, a split rail fence shall be installed along the averaged wetland buffer edge.
      g) Native Growth Protection Area (NGPA) signs shall be installed at the split-rail fence line, on a free-standing post, in a clearly visible area at a rate of one sign per 50 lineal feet of fence.
28. A subsequent critical areas permit for the geologically hazardous areas is required for the development. Modifications to the site plan and other development specifications may be required as a result of critical areas requirements associated with the geologically hazardous areas located on the site.
29. No building permit(s) for the development may be issued until after the effective date of the subsequent critical areas permit for geologically hazardous areas.
30. This critical areas permit (and consolidated permits) is effective only after the close of the appeal period, or if an appeal is filed, after the withdrawal of, or a final decision on, an administrative appeal pursuant to BMC 21.10.240C(3).

VARIANCE
31. A variance from the height restrictions of BMC 20.38.050B(4) is granted to allow Buildings 1 and 2, as shown on Exhibit A, to have an increased height over 35 feet under height definition No. 1, provided the height of these structures does not exceed 58 feet under height definition No. 1, and the peaks of the roofs and ridgelines do not extend above the elevation of Puget Street at its centerline, subject to the following conditions:
      a) A licensed land surveyor shall certify the existing grade elevations for both Buildings 1 and 2 and the centerline of Puget Street relative to an approved benchmark elevation prior to building permit issuance.
      b) A survey prepared by the licensed surveyor demonstrating that the final height of Buildings 1 and 2 will be consistent with this Order, based on the finished foundation elevation, shall be submitted to the City.
      c) A final survey prepared by a licensed land surveyor shall be submitted to the City demonstrating the final height of Buildings 1 and 2 will be consistent with this Order after framing has been completed. The City shall not pass the framing inspection until this height is verified and approved by the City.

HEIGHT OF BUILDINGS
32. Buildings 1 and 2 shall comply with the height restrictions set forth in the previous section "Variance". All other residential buildings shall be limited to 58 feet of height under height definition No. 1, as shown in the materials submitted with the proposal. The clubhouse building shall maintain a height and scale that is consistent with the single-family houses in the immediate vicinity, with no more than two stories, and no higher than 35 feet under height definition No. 1.

OPEN SPACE/USABLE SPACE/YARDS/SIGNS
33. The open space, usable space, yards and signs shall comply with the requirements of BMC 20.38.050B, provided that no residential buildings shall be located closer to the eastern property line than is shown on Exhibit A.
34. A sign shall be provided displaying on-site addresses and site layout near each main entrance to provide information for visitors and emergency services.

GENERAL
35. Development on the site, and all building and construction permits issued for the development, shall be consistent with the provisions of this Order.
36. No building permit for construction activity on the site shall be issued except in compliance with this Order.
37. A Public Facilities Agreement Permit shall be obtained from the City prior to installation of any public infrastructure, including street, water, sewer, and stormwater. Location, design and construction/installation of all public infrastructure shall be in accordance with the requirements of the Public Facilities Agreement, Bellingham Municipal Code, and Public Works Department standards. Construction of private infrastructure shall occur concurrently with the development of the residential uses.
38. The design of any retaining wall supporting public or private infrastructure that is constructed of concrete or block material exposed greater than two feet above grade shall be submitted for review and approval of the City. Concrete walls shall be finished with a material that will hide form panel seams and tie holes and be designed to blend visually with the site. Block walls shall be textured or landscaped in a manner approved by the City.
39. Site disturbance within the subject property, including, but not limited to, clearing and grading, is not permitted without an issued building permit, provided that the Director may authorize the issuance of a grading or foundation permit if it is consistent with this Order and all requirements prerequisite to clearing and grading have been satisfied.
40. Phasing of the development is allowed. Each phase of development shall satisfy all applicable conditions of this Order, including all actions necessary prior to building permit issuance and all necessary infrastructure, parking, usable space, and landscaping necessary to support each phase of development or as determined by the PCDD Director.
41. A public pedestrian footpath shall be constructed within or adjacent to the Consolidation Avenue and Puget Street rights-of-way to provide pedestrian access from the Nevada/Consolidation intersection to the Puget/Consolidation intersection. If any portion of the footpath is constructed on private property the owner shall grant an easement to the City, in a form approved by the City, for public use of the easement area. The minimum width of the easement shall be 30 feet. The path shall be located, designed and constructed in accordance with plans and specifications approved by the Public Works and Parks and Recreation Departments consistent with City standards. The path shall be constructed as a public sidewalk within the Puget Street right-of-way and shall terminate at an approved location that provides a safe crossing with the existing sidewalk in Consolidation Avenue, east of Puget Street.

CODE COMPLIANCE
42. The development shall comply with all applicable Bellingham Municipal Code requirements, except as a variance or exception is granted herein.
43. The development shall demonstrate compliance with all applicable fire flow and fire code standards as adopted by the City and/or as approved by the Fire Marshal. Sprinklers shall be required in accordance with Fire Codes unless a secondary access point is provided. The Fire Department may require a secondary emergency vehicle access from the development to Nevada Street.
44. School, park, and transportation impact fees, in an amount established by ordinance, shall be paid prior to building permit issuance.

OCCUPANCY
45. Prior to issuance of a Certificate of Occupancy for any building, all terms and conditions of this permit shall be met. The applicable department may require bonding if the Developer, prior to completion of the terms of this permit, requests Temporary Occupancy Permits. Certificate of Occupancy permits shall be processed in accordance with BMC 17.10.020.

AMENDMENTS
46. Amendments to this permit may be requested by the owner and approved by the Director in-writing, provided such amendments do not substantially alter the development. Substantial modifications shall require a new development application and review.

EXPIRATION OF VESTED STATUS
47. In accordance with BMC 21.10.260, this Planned Permit and Variance shall expire five years from the date of issuance, and the Design Review and Critical Areas Permits shall expire two years from the date of issuance, unless a complete building permit application, with the other required submittals, is submitted and determined to be complete, before that date.

ENTERED this 23rd day of October 2013.


Bellingham Hearing Examiner



________________________________
Dawn Sturwold
Top of Page ^ Top of page