Hearing Examiner #: HE-13-PL-035
City Contact:Steve Sundin
Hearing Date: 10/23/2013
Description: Street Vacation Petition of muliple rights-of-ways within the Waterfront District: Army Street; Central Avenue; Oak Street; and C - F Streets
Decision Date: 11/08/2013
Decision Summary:Recommended to Council
came before the Bellingham Hearing Examiner for hearing on the 23rd
day of October 2013 on the Petition of the Port of Bellingham for vacation of portions of Army Street, Central Avenue, Oak Street, and C, D, E, and F Streets between the Inner Harbor Line and the Outer Harbor Line of Bellingham Bay.
Testimony was received from Steve Sundin, Planning and Community Development Department; Sylvia Goodwin, Port of Bellingham; Jon Sitkin, Petitioner's attorney; and Wendy Harris, 3925 E. Connecticut Street.
In addition to the Bellingham Municipal Code and Comprehensive Plan, the following documents were considered as part of the record: See Exhibit List
The record in this matter was consolidated with the records for VAC2013-00002 and VAC2013-00004. The record was held open for additional written comments until October 31, 2013. Additional comments were received from Wendy Harris on October 31, 2013 and are included in the Record.
I. FINDINGS OF FACT
1. The Port of Bellingham and the City of Bellingham petitioned for the vacation of portions of Army Street, Central Avenue, Oak Street, and C, D, E, and F Streets between the Inner Harbor Line and the Outer Harbor Line of Bellingham Bay. The Washington Department of Natural Resources signed the petition affirming that it is the manager of State-owned property in the harbor area.
2. The subject rights-of-way consist of seven segments, all located within the harbor area, east and west of the Whatcom Creek Waterway. The Port of Bellingham is the abutting property owner of each segment. The City of Bellingham owns a parcel abutting the C Street segment. The Department of Natural Resources is the manager of State owned tidelands and harbor areas abutting each segment.
3. The subject portions of Army Street, Central Avenue, and Oak Street are located in the Central Business District, Area 11 which is designated Industrial, Marine. The C, D, E and F Street segments are located in Area 2B of the Central Business District and are designated Industrial, Heavy.
4. The proposed vacations are included as a part of the proposed New Whatcom/Waterfront District Redevelopment Project.
5. The Port of Bellingham's SEPA (State Environmental Policy Act) Official released the Draft Environmental Impact Statement, including Technical Appendices for the Waterfront Redevelopment Project in January 2008. A Supplemental Draft Environmental Impact Statement was issued in October 2008. A Final Environmental Impact Statement (FEIS) was issued in July 2010 with Addendums issued in February 2010, and December 2012.
6. Drafts of a Waterfront District Sub-Area Plan, Development Regulations, Design Standards, Planned Action Ordinance, Development Agreement and an Inter-local Agreement for Facilities were issued in December 2012.
7. The Bellingham Planning Commission issued Findings of Fact, Conclusions and Recommendation for approval of the Waterfront District documents in June 2013. These documents and the Planning Commission Recommendation are currently under review by the Bellingham City Council. The documents are also currently being reviewed by the Bellingham Port Commission.
8. The Proposed Inter-Local Agreement allocates responsibility for phased implementation of facility development, defines the timing of property transfers between the Port and the City, and establishes a process for on-going management of the Waterfront District Project. This Agreement would provide for the transfer of land from the Port to the City in exchange for the proposed vacations.
9. The Bellingham City Council set the hearing in this matter by Resolution on September 30, 2013.
10. Notice of the proposed vacations was sent to private utility providers on October 1, 2013. Puget Sound Energy has notified the City that it has private utility facilities within some of the subject rights-of-way. The City has water and sewer mains within Army Street and Central Avenue. Retention of easements for existing utilities is recommended.
11. Notice of Public Hearing on these proposed vacations was issued on October 2, 2013.
12. Segment A contains 41,447 square feet of the Army Street right-of-way between Oak Street and West Pine Street.
13. Segment B consists of 43,034 square feet of Central Ave. between Oak St. and W. Pine Street.
14. Segment C is 15,579 square feet of Oak Street between Army Street and Central Avenue within the Inner Harbor Line.
15. Segment D is 35,002 square feet of C Street between the Inner and Outer Harbor Lines.
16. Segment E contains 35,037 square feet of D Street between the Inner and Outer Harbor Lines.
17. Segment F contains 35,075 square feet of E Street between the Inner and Outer Harbor Lines.
18. Segment G consists of 35,115 square feet of F Street between the Inner and Outer Harbor Lines.
19. These segments are shown and legally described on Attachment 1
20. The Technical Review Committee determined that the subject rights-of-way are not necessary for the circulation needs of the city as they are not currently used for transportation circulation and the proposed Waterfront District Sub Area Plan and Inter-local Agreement provide for the dedication of significant amounts of right-of-ways within the same area.
21. Segments A, B and C are located within the Bellingham Shipping Terminal. Portions of large warehouses are located on Segments A and C. Segment B contains a wharf between the Log Pond and the shipping terminal pier. These right-of-ways are not currently accessible to the public.
22. Segments D, E, F, and G contain portions of the Aerated Stabilization Basin (ASB) breakwater. The upland portions of these right-of-ways were previously vacated.
23. BMC 13.48 provides for petitions, hearings, notice, appraisal and payment for street vacations. In this case the Director of the Planning and Community Development Department determined that an appraisal was not necessary because the Petitioner proposed dedications of rights-of-way in an amount in excess of the proposed vacations in exchange for the vacations.
24. RCW 35.79 governs street vacations in cities. It provides procedural requirements and restricts vacations of streets abutting bodies of water and in cases where a majority of abutting property owners object to the vacation.
25. City Vacation Policies are set forth in the Staff Report.
26. Public comment was received from Wendy Harris. She objected to the proposed vacations on several grounds, including the lack of specific information regarding the future dedications intended to compensate for the vacation of the subject right-of-ways, the lack of involvement of the Lummi Nation in the process, that the vacations are premature until the Waterfront District Sub Area Plan is adopted, that there is still controversy regarding several elements of the proposed plan, including public access around the log pond and the ASB facility, that the public trust doctrine and State vacation laws prohibit vacation of streets abutting or under water regardless of whether there is current public access to them, that scenic vistas and wildlife habitat should also be considered before vacating streets, and that determining the public benefit to a vacation involves more than just compensation, it requires a broader determination of what the public gets in return for what it is giving up.
27. Vacation of right-of-ways within the harbor areas requires approval of the Department of Natural Resources, Board of Natural Resources prior to final approval of the vacation ordinance. The State's process is intended to assure that the public purpose and interest is served. The Department of Natural Resources has specific terms applicable to harbor areas it manages that provide for navigation and public access.
28. The proposed vacation would not land-lock any parcels. All abutting parcels, except for bedlands which currently have no access, would maintain access from other rights-of-way. West Pine Street, which runs between Cornwall Avenue and the Whatcom Creek Waterway within the harbor area, will remain a public right-of-way.
29. RCW 35.79.035 provides that a city may not vacate a street that abuts a body of water unless the vacation is sought to enable the city to acquire the property for port purposes, beach or water access purposes, boat moorage or launching sites, park, public view, recreation, or educational purposes, or other public uses; the city declares that the street is not presently being used as a street and the street is not suitable for any of the following purposes: Port, beach or water access, boat moorage, launching sites, park, public view, recreation, or education; or the vacation is sought to enable a city to implement a plan, adopted by resolution or ordinance, that provides comparable or improved public access to the same shoreline area to which the streets sought to be vacated abut, had the properties included in the plan not been vacated. This section also provides that fair market value shall be paid for the vacation and that moneys received from the vacation may only be used by the City to acquire additional beach or water access, acquiring additional public view sites to a body of water, or acquiring additional moorage or launching sites.
30. Staff indicates that the proposed vacations are part of the proposed Waterfront District Sub Area Plan that the Council will consider concurrently with the vacations. The proposed Inter-local Agreement indicates that the street vacations are anticipated, that the effective date of the vacations will be the date of approval of the Sub Area Plan and related agreements, and that new right-of-ways will be dedicated or transferred consistent with the terms of the Plan and Agreement.
31. The proposed plan includes the dedication of approximately 3.77 acres of parkland which will provide public access to Bellingham Bay. This proposed dedication will provide improved public access. The subject right-of-ways currently provide no functional public access to the shoreline.
32. Vacation of the subject right-of-ways allows for the consolidation of Port property, elimination of potential conflicts with existing and future uses, and implementation of a plan that will provide for improved public access to the shoreline. New right-of-ways would be dedicated that will connect to upland transportation facilities. The proposed vacations will serve the public good.
33. All abutting property owners have signed the vacation petition.
II. CONCLUSIONS OF LAW
1. Procedural requirements for the proposed vacations have been satisfied.
2. The proposed vacations are not prohibited by RCW 35.79. All of the abutting property owners have signed the vacation petition. Although the segments proposed for vacation abut a body of water the vacations are proposed as part of a plan that would provide improved public access to the same shoreline area, Bellingham Bay. The plan would be adopted concurrently with the proposed vacations. The proposed vacations satisfy the requirements of RCW 35.79.035(1)(c).
3. The City Council determines the fair market value of the subject right-of-ways and the land/rights-of-way proposed to be dedicated/transferred in exchange. RCW 35.79.035(3) requires that the city receive at least fair market value, in money or property, for the vacations. Any monies received may only be used to acquire beach or water access, public view sites to a body of water or moorage or launching sites.
4. Public comment raised valid concerns regarding the proposed Waterfront District Sub Area Plan and Inter-local Agreement and their relationship to the proposed vacations and transfers. Some of the points raised are beyond the scope of the hearing on the vacation petition and are more appropriately considered as part of the review and adoption of the plan/agreement itself. For purposes of this vacation petition it is sufficient to determine that the vacations are sought to implement a plan that is adopted by the Council prior to, or concurrent with adoption of the vacation ordinance, that will provide improved public access to the shoreline, in addition to consistency with the City's adopted vacation policies.
5. The subject right-of-ways should be vacated subject to adoption of the Waterfront District Sub Area Plan and Inte-rlocal Agreement providing for the dedication/transfer of right-of-ways/land that will improve both public access to the shoreline and transportation circulation to and for the district, and a determination by the City Council that the value of land transferred or dedicated in exchange for the vacations is at least equivalent to the vacated right-of-ways.
The proposed vacations are recommended for approval subject to concurrent approval by the City Council of a Waterfront District Sub Area Plan and Inter-local Agreement which the Council determines provides for improved public access to Bellingham Bay and improved transportation circulation, and transfer/dedication of land/right-of-way of a value at least equivalent to the vacated right-of-ways, and retention of utility easements for existing utilities. Vacations within the First Class Tidelands and Harbor Areas are subject to approval of the Department of Natural Resources.
ENTERED this 8th
day of November 2013.
Bellingham Hearing Examiner