Hearing Examiner #: HE-13-PL-036
City Contact:Steve Sundin
Hearing Date: 10/23/2013
Description: Street Vacation Petition of G Street between Roeder Avenue and W. Chestnut Street
Decision Date: 11/08/2013
Decision Summary:Recommended to Council
This matter came before the Bellingham Hearing Examiner for hearing on the Petition of the Port of Bellingham and Sanitary Service Company for the vacation of G Street between Roeder Avenue and West Chestnut Street.
Testimony was received from Steve Sundin, Planning and Community Development Department; Sylvia Goodwin, Port of Bellingham; Jon Sitkin, Petitioner's attorney; and Wendy Harris, 3925 E. Connecticut Street.
In addition to the Bellingham Municipal Code and Comprehensive Plan, the following documents were considered as part of the record: See Exhibit List.
The Record in this proceeding was consolidated with the Records in VAC2013-00002 and VAC2013-00003. The record was held open until October 31, 2013 for additional written comments. Additional comments were received from Wendy Harris on October 31, 2013.
I. FINDINGS OF FACT
1. The Port of Bellingham and Sanitary Service Company petitioned for the vacation of G Street between Roeder Avenue and West Chestnut Street in Bellingham.
2. The subject right-of-way is located in Area 2B of the Central Business District and is designated Industrial, Heavy.
3. The subject right-of-way contains 13,318 square feet. It is 60 feet in width and is currently used by Sanitary Service Company for parking, access and operational facilities.
4. The proposed vacation is 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 vacation was sent to private utility providers on October 1, 2013. Puget Sound Energy has notified the City that it has facilities within portions of the right-of-way. Retention of easements for City water and sewer and existing utilities is recommended.
11. Notice of Public Hearing on the proposed vacation was issued on October 2, 2013.
12. The Technical Review Committee (TRC) has reviewed the vacation petition and has determined that the subject right-of-way is not necessary for the future circulation needs of the city because it is not currently used for public transportation circulation and implementation of the proposed Waterfront District Sub Area Plan and Inter-local Agreement will provide for dedication of significant amounts of right-of-ways that will serve the circulation needs for the area.
13. 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 for the north half of the right-of-way which abuts Port property because the Petitioner proposed dedications of right-of-ways in an amount in excess of the proposed vacations in exchange for the vacation. An appraisal was obtained for the south half of the right-of-way abutting Sanitary Service Company property. Sanitary Service Company is prepared to pay fair market value for the vacation.
14. 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.
15. City Vacation Policies are set forth in the Staff Report.
16. Public comment was received from Wendy Harris. She objected to the proposed vacation 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 Aerated Stabilization Basin (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. She also expressed concern that public interests were being lost to private ownership through these vacations.
17. The proposed vacation will not land-lock any parcel. The abutting parcels will maintain access to Hilton Avenue and Roeder Avenue.
18. The subject right-of-way does not abut a body of water.
19. 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.
20. The subject right-of-way is not adjacent to and does not lead to any park, open space, view, natural area, or any other attraction.
21. The subject right-of-way does not currently serve the public good for circulation purposes or for public access to the water. The proposed vacation is for the purpose of implementing a proposed plan which will provide better circulation, connecting to existing streets and transportation networks, and serving the development expected within the Waterfront District. The proposed Plan also provides for public access, parks, views and habitat. The vacation also allows the abutting property owner to obtain control of the land which is currently used in the operations of the property owner's business. The Port will continue to lease the property to the north, including the north half of the right-of-way, to Sanitary Service Company.
22. The proposed vacation will serve the public good.
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. The right-of-way proposed for vacation does not abut a body of water. The vacation is 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.
3. The proposed vacation is consistent with City Vacation Policies.
4. The City Council determines the fair market value of the subject right-of-way and the land/right-of-ways proposed to be dedicated/transferred in exchange, and the amount to be paid for the vacation.
5. 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 vacation is 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.
6. The subject right-of-way should be vacated subject to payment of the appraised value for the south half of the right-of-way and adoption of the Waterfront District Sub Area Plan and Inter-local Agreement providing for the dedication/transfer of right-of-ways/land that will improve both public access to the shoreline and transportation circulation to and for the district, and a determination by the City Council that the value of land transferred or dedicated in exchange for the vacation is at least equivalent to the vacated right-of-way.
The proposed vacation is recommended for approval subject to the following: 1) payment for the south half of the right-of-way as determined by appraisal; 2) 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-way; and 3) retention of utility easements for City utilities and existing private utilities.
ENTERED this 8th
day of November 2013.
Bellingham Hearing Examiner