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Variance request of Parks & Rec Dept. re 2214 Electric Avenue (aka Bloedel Donovan Park)

Hearing Examiner #: HE-14-PL-029
Planning #:VAR2014-00015 / SHR2014-00018 / SEP2014-00015
Incident #:
Filing Date:06/03/2014
City Contact:Steve Sundin
Hearing Date: 07/23/2014
Description: Variance request of Parks & Rec Dept. re 2214 Electric Avenue (aka Bloedel Donovan Park)
Decision Date: 08/06/2014
Decision Summary:Approved with conditions

The requested variance to allow land disturbance in the Lake Whatcom watershed between October 1st and May 31st for the purpose performing restoration activities along the Lake Whatcom shoreline at Bloedel Donovan Park in Bellingham, Washington is APPROVED subject to conditions.
The Bellingham Parks and Recreation Department (Applicant) requested approval of a variance to allow land disturbance in the Lake Whatcom watershed between October 1st and May 31st to allow a stormwater remediation project along the Lake Whatcom shoreline at Bloedel Donovan Park.

Hearing Date:
The Bellingham Hearing Examiner conducted an open record hearing on the request on July 23, 2014.

At the hearing the following individuals presented testimony under oath:

    Steve Sundin, Planner II
    Gina Austin, Park Project Engineer, Applicant's Representative
    Kurt Nabbefeld, Senior Planner
At the open record hearing, the following exhibits were admitted in the record:

Exhibit 1 Staff Report to the Examiner, dated July 23, 2014 with the following attachments:
        A. Vicinity Map
        B. Introduction to the Bloedel Donovan Park Stormwater Retrofit Project Pre-Design Report
        C Project Schematics
        D Applicant’s Justification for Variance
Exhibit 2 Notice of hearing

Upon consideration of the testimony and exhibits submitted, the Hearing Examiner enters the following findings and conclusions:
1. The Applicant requested approval of a variance to allow land disturbing activities in the Lake Whatcom watershed between October 1st and May 31st to install stormwater remediation improvements along the Lake Whatcom shoreline at Bloedel Donovan Park. The project site is generally at 2214 Electric Avenue, Bellingham, in the Silver Beach Neighborhood Area 12, within Lake Whatcom reach # 4. The site has a Public zoning designation. Exhibit 1; Exhibit 1, Attachment D.
    2. Lake Whatcom is the City of Bellingham's drinking water source. Annually the lake is lowered to its winter level beginning on October 1st in order to accommodate fall and winter rains. The Bellingham Municipal Code (BMC) prohibits land disturbing activity in the Lake Whatcom watershed between October 1st and May 31st, which period is referred to as the seasonal restriction. The instant proposal includes land disturbing activities along the shoreline while the lake is at its low winter level. The purpose of the project is to improve stormwater management, water quality, and natural shoreline processes at Bloedel Donovan Park. Performing the restoration work while the lake is at its winter level would avoid significant direct impacts to the water quality of Lake Whatcom. A variance from the seasonal restriction is requested. Exhibit 1; Exhibit 1, Attachment D; Sundin Testimony; BMC 16.80.120.A.
      3. Bloedel Donovan Park is one of the City's most popular public places. It contains 14.5 acres developed with community oriented uses including a pre-school, boat launch, parking areas, a large sports field, and lawn and landscaped areas. Lake Whatcom is listed on the Clean Water Act's 303(d) list as an impaired water body due to low dissolved oxygen and high fecal coliform bacteria levels. The Lake Whatcom total maximum daily load (TMDL) study identified phosphorus and bacteria in stormwater runoff as the primary drivers of water quality decline. Presently, stormwater runoff from parking areas, roads, and developed portions of the park is managed for phosphorous by previous projects. However, runoff from the 3.5-acre open lawn area directly adjacent to the lake is not currently managed; it sheet flows into the lake without treatment. Phosphorous and bacteria loading result from lawn maintenance, vegetative leaching of leaf litter, animal access to the lawn (dogs and Canada geese were specifically cited), and exposed soil areas in the lawn resulting from overuse during periods of saturation, which require annual reseeding and nutrient application. Exhibit 1, Attachment B.
        4. The elevation of the lake's ordinary high water mark (OHWM) in September is approximately 314.5 feet above sea level. Portions of the proposed work would be performed landward of the OHWM and could be done prior to October 1 above this elevation without a variance. The Public Works Department begins the annual draw down on approximately October 1st of every year by lowering the control dam until the lake's OHWM reaches 311.5 feet above sea level. Draw down takes approximately one month. The following improvements are proposed between the OHWM and an elevation of approximately 312 feet above sea level: installation of new media filter drains (MFD), replacement of the lawn with a sand gravel mix beach surface, and removal of an existing bulkhead along the shoreline edge. Exhibit 1; Exhibit 1, Attachments B, C, and D.
          5. The proposal would implement the following best management practices (BMPs) to reduce nutrient loading via stormwater runoff:
              Pretreatment strategies to physically remove particulate phosphorus and bacteria;
              Flow-through media filter drains
              Amendment of the treatment sand to enhance chemical neutralization of dissolved phosphorus;
              Enhanced infiltration through underlying native soils;
              Site grading to direct surface flows into treatment media;
              Replacing lawn adjacent to the shoreline with open sand and gravel areas;
              Creating or enhancing landscaped shoreline buffers for dispersion areas; and
              Replacing any disturbed impervious surfaces with pervious concrete to increase infiltration and reduce runoff into the lake.
              Exhibit 1, Attachment B.
          6. Replacement of the lawn adjacent to the shoreline with sand/gravel beach area would discourage geese from congregating next to the water and would also improve treatment for runoff by encouraging infiltration through sediment rather than sheet flow into the lake. Austin Testimony.
            7. If implemented, the proposal is anticipated to manage at least 91% of the currently unmanaged runoff from an area of approximately six acres. Projections indicate it would reduce phosphorous loading from approximately 5.5 pounds per year to half a pound per year. Exhibit 1, Attachment B.
              8. The proposal has been in the planning stages for a number of years, including a master plan amendment public process in 2012-2013. The current design was posted on website and distributed at a stakeholder meeting held by the Applicant. Some of the funding for the project is through a state grant from Department of Ecology. The alternative to the variance would involve constructing coffer dams to hold back the lake to allow the work to proceed outside the seasonal restriction. The Applicant submitted the position that a variance to allow the work to proceed during the seasonal restriction would be a better use of public funds, because then all of the funding could be used for actual improvements rather than being spent on temporary construction measures. Austin Testimony.
                9. Performing the proposed work between June 1st and September 30th would result in significant impacts to water quality, including increased phosphorous loading and turbidity resulting from excavation and grading. Implementation of the project outside the seasonal restriction would also disrupt public access to the City's primary recreational facilities during typical peak demand periods. Proceeding with the project during the seasonal restriction period alleviates both types of impacts. Exhibit 1; Austin Testimony.
                  10. Planning Staff submitted the position that the seasonal restriction was not adopted by the City in order to prohibit public projects intended to protect and improve public health, safety, welfare, the environment, and Lake Whatcom's water quality. Exhibit 1; Sundin Testimony.
                    11. The City Code does allow emergency exemptions to the seasonal restriction against ground disturbance in the watershed. Pursuant to BMC 16.80.120.C, "The city may approve emergency exemptions to the seasonal restrictions as may be necessary to protect public health, safety, welfare, the environment and private or public property. Exemptions shall be construed narrowly and may be granted by the planning and public works directors."
                    However, the Planning and Public Works Directors, together with the City's legal department, determined that the instant project did not meet the emergency exemption and that a public process was more appropriate. Exhibit 1; Nabbefeld Testimony.
                      12. The project site is located in an area designated as Urban Shoreline Environment pursuant to the Bellingham shoreline master program. The Applicant applied for a shoreline permit exemption and a State Environmental Policy Act (SEPA) determination. Both are administratively reviewed after land use approval is obtained. Exhibit 1; Sundin Testimony.
                        13. The Applicant would be required to obtain a hydraulic permit approval (HPA) from the Washington State Department of Fish and Wildlife and to comply with any conditions imposed by that permit. Exhibit 1.
                          14. The application was submitted April 28, 2014 and deemed to be complete for the purpose of review on June 3, 2014. Notice of application and public hearing was issued June 3, 2014. Exhibit 2. There was no public comment on the application. Exhibit 1; Sundin Testimony.
                            15. Upon review of the proposal and all applicable regulations, Planning Staff recommended approval subject to conditions. Exhibit 1; Sundin Testimony.
                            The Hearing Examiner is granted authority to hold hearings and make decisions on variance permit applications pursuant to BMC 21.18.020.A.

                            Criteria for Review
                            Pursuant to Bellingham Municipal Code 21.18.020.A, a variance may be approved if all of the following are demonstrated:
                              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; and
                              2. That 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.
                              3. That the subject property cannot be reasonably used under the regulations as written.

                            Applicable Code Provisions
                            BMC 16.80.120.A: No land-disturbing activity, including but not limited to clearing of vegetation, grading, filling, excavating or trenching of soil or earth materials, shall be permitted from October 1st through May 31st, with the exception of restoration work described in BMC 16.80.080.E and approved in writing by the planning and public works directors.

                            Conclusions Based on Findings
                            1. Lake Whatcom's inclusion on the 303(d) list represents an environmental and public health issue that requires remediation as soon as possible, given the Lake's use as both recreational facility and drinking water supply. These unique circumstances render strict application of the seasonal restriction inimical to the public welfare and they satisfy the variance criterion that demands special circumstances related to the property. Findings 2, 3, 4, 5, 6, 7, 9, 10, and 15.

                            2. Granting of the variance would not result in detriment to the public welfare, but instead would prevent increased phosphorus loading and turbidity in the already compromised lake. Approval would also benefit the public by preventing interruption of public recreation opportunities during periods of historically high use. Findings 2, 3, 7, 9, 10, 12, 13, and 15.

                            3. Application of the seasonal restriction to prohibit the instant remediation project would be unreasonable. Findings 2, 3, 5, 6, 7, 8, 9, 10, and 15.
                            Based upon the preceding findings and conclusions, the requested variance to allow land disturbance in the Lake Whatcom Watershed between October 1st and May 31st to allow stormwater remediation activities along the Lake Whatcom shoreline at Bloedel Donovan Park is APPROVED subject to the following conditions:

                            1. Site work proposed between the elevations of 315-feet and 311-feet above sea level shall not commence until the level of the lake has been drawn down to 311.5-feet above sea level as verified by the Public Works Department.
                              2. A Shoreline Permit Exemption shall be approved prior to any site work.
                                3. All other state and local permits shall be approved prior to any site work.

                                DECIDED August 6, 2014.
                                Bellingham Hearing Examiner
                                Sharon A. Rice, Pro Tem