Thursday, March 27, 2008

The Protection of Open, Transparent Government Requires Citizen Participation

Wendy Harris, a local resident and retired attorney, has graciously granted Latte Republic permission to post a copy of her Public Comments to Bellingham City Council members, Mayor Dan Pike and the Planning Commission regarding the City's lack of compliance with the state-mandated SEPA review process on four City of Bellingham Agenda Bills.

If you value open, transparent government - now is the time to step up to the plate and demand that the City of Bellingham observe public meeting requirements, including SEPA review requirements - BEFORE - public hearings are scheduled.

Background: The Washington State Environmental Policy Act (SEPA) provides a way to identify possible environmental impacts that may result from governmental decisions. These decisions may be related to issuing permits for private projects, constructing public facilities, or adopting regulations, policies or plans. Information provided during the SEPA review process helps agency decision-makers, applicants, and the public understand how a proposal will affect the environment. This information can be used to change a proposal to reduce likely impacts, or to condition or deny a proposal when adverse environmental impacts are identified.

In her conclusion, Ms. Harris states, "it is important that City Council uphold the requirements of WAC 197-11-335(3) (a) and direct the Planning Department to withdraw the "re-issued" DNS. This will reassure the public that rules are enforced in a fair manner, regardless of status or position, and that the City adheres to the same rules that it expects its citizens to follow."

Thank you, Wendy -

----- Original Message -----
From: Wendy Harris
To: ; ;
Sent: Wednesday, March 26, 2008 8:21 PM
Subject: Public Comment on SEPA procedural defects
City Council Public Hearing Scheduled for March 31, 2008

From: Wendy Harris
Via Email
Date: 3.26.08
Re: City of Bellingham Agenda Bills 017849, 017850, 017851 and 017852

Dear Members of City Council:

I am submitting public comment with regard to SEPA issues on the 4 above referenced agenda bills currently under consideration. As established below, there are fatal procedural defects in the SEPA process that require the re-issued DNS be withdrawn.


On March 17, 2008, the City Council held a public hearing on 4 proposals submitted by the Department of Planning and Community Development (“Planning Department”), set out in Agenda Bills 017849, 017850, 017851 and 017852. I was unable to find a SEPA determination with regard to any of these items and sent an email inquiry to the state. I also copied this email to the Planning Department. On the evening of the hearing, Lindsay Albin, the Department of Ecology Disclosure Coordinator for the Bellingham office, confirmed by email that she had no record of a SEPA determination for these items.

This contradicted information contained in a Planning Department staff report prepared for the Planning Commission, who held a prior public hearing on February 7, 2008. The staff report, at least with regard to Agenda Bill 017851, advised that a SEPA official issued a Determination of Non-significant Environment Impact, filed as SEP2008-00002. (The staff report for Agenda Bill 017849 leaves the SEPA document number blank, and the staff reports for the other two agenda bill items are not posted on the Planning Commission website.) On the basis of the staff reports, and in contradiction of public commentary by three people, all of whom requested additional time for more public input, the Planning Commission forwarded a recommendation that City Council approve all four agenda bills.

The Planning Department also prepared staff reports for City Council. The reports for all four agenda bills again advised that a SEPA official issued a Determination of Non-significant Environment Impact, filed as SEP2008-00002. This statement was included in the ordinance language drafted by the Planning Staff and City Attorney for signature by the City Council and the Mayor.

At the March 17, 2008 City Council hearing on these four agenda bills, Tim Stewart, Director of Planning and Community Development, advised that there was a SEPA technicality that had been corrected earlier that morning. He requested that the public hearings proceed on all but the SEPA issue. He asked Council to table their vote on the four agenda bills until expiration of the 15 day SEPA comment period and a March 31, 2008 public hearing, limited to SEPA issues. I have no recollection of Mr. Stewart elaborating further on the SEPA problem.

I later determined that on Monday, March 17, 2008, an initial SEPA DNS, entitled “Re-Issued Determination of Non-Significance”, SEP2008-00002, was signed and filed by Tim Stewart, acting as the responsible officer under SEPA rules. The “re-issued” DNS covered all four agenda bills.


The DNS Was Not Provided To The Planning Commission As Required By Law
The proposals by the Planning Department require amendment to the Bellingham Municipal Code and affect land use and development regulations. (See, for example BMC Chapter 20.17 regarding EPFs.) This requires a Type VI review process. BMC 21.10.040 I. As part of this process, proposals must first be reviewed by the Planning Commission before proceeding to City Council for consideration. The Planning Department is required to provide the DNS or EIS to the Planning Commission, along with a staff report. BMC 21.10.150.C. Clearly, since neither a DNS nor EIS existed at the time the Planning Department provided its staff report to the Planning Commission, a DNS was not provided to the Planning Commission and the procedural requirements for a Type VI review have not been met.

Accordingly, it is inappropriate for these four agenda bills to proceed forward for City Council review. Rather, another public hearing should be scheduled by the Planning Commission once the Planning Department has complied with the appropriate SEPA rules, and has provided the Planning Commission with a valid SEPA document (i.e., not “re-issued”). (As a side note, even under a Type V-A review process, which the Planning Department may attempt to assert is applicable, a SEPA threshold decision is required under the procedures set out in BMC 21.10. 220, such that fatal procedural flaws still exist under SEPA rules.)

On a more substantive level, it is disconcerting that the Planning Commission would forward the four agenda bills with a recommendation for approval without any review of the SEPA DNS, particularly when the recommended proposals concern development within critical areas designated under the GMA. This is made even more disturbing by the fact that the 3 people who testified at the public hearing represented different interests within the community and yet, all shared concerns about the rushed manner in which this was being handled, and the lack of public awareness and input into such important legislative proposals. All three people requested additional time for review and public comment. The glaring procedural defect in this case, coupled with the Planning Commission’s failure to hear what was being said at the public hearing, suggests that there may be significant problems with the way the City is conducting its affairs and whether or not public testimony is actually being considered by public officials.

If the City wishes to ensure public compliance with the myriad of rules applicable to obtaining various City permits, and if the City desires public involvement in our local government, it is imperative that the City enforce its own laws, and treat public hearings as more than a meaningless formality. City Council can take a first step to encourage this by recognizing that the failure to provide the Planning Commission with a SEPA DNS is a fatal procedural defect that must be corrected before these agenda bills can move forward.

SEPA Rules Require A DNS Procured By Misrepresentation To Be Withdrawn
The Planning Department materially misstated facts when they asserted that a SEPA Official issued a DNS for all four agenda bills, and further gave this misinformation added legitimacy by citing a specific SEPA number (SEP2008-00002) for the non-existent document. I can only wonder if this problem would have been discovered when it was had I not copied the Planning Department on my SEPA email to Ecology.

Certainly, this error was not discovered at the time of the Planning Commission hearing, and no doubt, the false assurance that there was a properly issued SEPA DNS aided the Planning Commission in its decision to forward the agenda bills to City Council with a recommendation for approval.

Had this material misrepresentation not been discovered before the City Council hearing on March 17, 2008, there would have been a vote on the 4 agenda bills, and a City Council member might have relied upon this false information in voting in favor of the proposals. It is unknown whether this false information satisfied the concerns of local residents, who might otherwise have testified at a public hearing on the agenda bills.

However, once this false information was uncovered, the Planning Department responded by simply filing a “Re-Issued DNS.” Overlooking the logical fallacy of re-issuing a document where no original document exists, in attempting to revise the falsely represented SEPA DNS SEP2008-0002, the Planning Department violated a SEPA Rule. Under WAC 197-11-335(3) (a), a lead agency should withdraw a DNS procured by misrepresentation or lack of material disclosure. WAC 197-11-335(3) (a). Since the “re-issued” DNS simply furthers the lack of material disclosure that no DNS previously existed, it follows that the “re-issued” DNS is fatally flawed and must be withdrawn.

It is important that City Council uphold the requirements of WAC 197-11-335(3) (a) and direct the Planning Department to withdraw the “re-issued” DNS. A message will be sent to the public that rules are enforced in a fair manner against everyone, regardless of status or position, and that the City itself adheres to the same rules that it expects its citizens to follow. Moreover, this will be a message to Mr. Stewart and the Planning Department that playing fast and loose with SEPA rules is not acceptable and that strict compliance and full disclosure is required in the future.


The “re-issued” SEPA Determination of Non-significant Environment Impact is fatally flawed due to procedural defects and should be withdrawn. The affected agenda bills address important environmental issues regarding protection of critical areas and may have a large future impact on the City’s natural resources. Therefore, it is crucial that all SEPA provisions are fully and properly complied with. Furthermore, the general public will view the City Council as condoning the actions of the Planning Department in providing materially false SEPA information unless corrective action is taken.

I believe there are also substantive problems with the revised DNS, but I will address those in a separately submitted public comment. Thank you for allowing me to provide this public comment with regard to SEPA issues for Agenda Bills 017849, 017850, 017851 and 017852, currently before the City Council for vote.

Wendy Harris
Bellingham Resident

Ms. Harris's comments to City Council at March 17th Public Hearing re: AB 17849:

From: Wendy Harris
Via Email
Date: 3.16.08
Amendment to Land Use Code to Add a List of Essential Public Facilities.

Dear City Council Members:

There is no present need to amend the Bellingham Land Use and Development Code in order to create a list of designated Essential Public Facilities (“EPF”) as proposed by the Planning Department. Such a list is duplicitous of existing city codes that clearly define EPFs, and thus, would only create more unnecessary, technically complex laws. More importantly, such a list is being requested for the purpose of avoiding the City’s obligations to comply with and protect the critical areas mandated by the Growth Management Act (“GMA”) and the Shoreline Management Act (“SMA”).

The GMA requires Bellingham to identify and site EPFs. However, nothing within this obligation requires codification of a specific list of EPFs (although the GMA does require that the office of financial management maintain a list of those EPFs likely to be built within the next 6 years). Moreover, Bellingham already identifies and sites EPFs in conformity with GMA requirements. Currently, there are at least two provisions of the Bellingham Municipal Code (“BMC”) that define Essential Public Facilities:

BMC 20.17.010 defines an EPF, by reference to the Growth Management Act provision, (RCW 36.70A.040), as:

facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, (emphasis added), state and local correctional facilities, solid waste handling facilities, and in-patient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020.

BMC 20.08.020.E.(2), a second, more local definition, which still incorporates reference to the GMA, defines an EPF as:

Public facilities that may be difficult to site, but are considered essential for the community and are included under RCW 36.70A.200 and the types of public facilities that Bellingham may consider to be Essential Public Facilities under BMC 20.17.020. Essential Public Facilities under this definition are facilities, conveyances, or sites that are: (1) used to provide services to the public; (2) delivered by government agencies, private or non-profit organizations under contract to or with substantial funding from government agencies, or private firms or organizations subject to public service obligations; and (3) necessary to adequately provide a public service.

Pursuant to BMC 20.17.030, the City provides a siting process for any facility determined to be eligible as an EPF, even where it is not a permitted or conditional use under the Bellingham Land Use Development Ordinance. The criteria for granting an application for a proposed EPF requires consistency with the Bellingham Comprehensive Plan, review of its environmental impact, and compliance with applicable State siting and permitting requirements (which would include the GMA). Additionally, provisions for various ordinances are also available. See BMC 20.17.060. BMC 20.17.020 further authorizes, but does not require, the City to establish a list of EPFs pursuant to existing State and County definitions of EPFs.

Thus, although Bellingham law complies with the GMA requirements for identifying and siting EPFs, provides clear legal standards of what constitutes an EPF, and allows any facility that meets the definition of an EPF to be treated as such, the Planning Department requests creation of a specified list of EPFs. The reason for this request is that the proposed EPF list would include items, such as local roads, bicycle and pedestrian improvement projects, parks and trails, libraries, and Fire and Police stations, that exceed the general scope and nature of EPFs defined under State law. However, creation of this list would allow the City to avoid the expense and inconvenience of complying with the normal GMA and SMA mandates for protecting critical areas.

As the GMA and BMC make clear, EPFs consist of facilities that most residents object to placing within their neighborhood, and as such, are difficult to site. For example, with regard to transportation facilities, a primary concern motivating the Planning Department, the GMA definition of EPFs, as set out in RWC 36.70A.200, references RWC 47.06.140, which are facilities and services of statewide significance, including interstate highways, interregional state principal arterials including ferry connections that serve statewide travel, intercity passenger rail services, and intercity high speed ground transportation, all of which remain under the ultimate authority of the Washington State Department of Transportation.

Transportation facilities of statewide significance, which few residents would desire in their neighborhood, are distinguishable from improved and extended local roads, parks and trails that many residents would desire in their neighborhood. This exemplifies why including such items on the proposed list would not to the general definition of an EPF under State or local law. This is made even more apparent by the fact that the requested list of EPFs coincides with development projects currently in the works, or planned for the near future, all of which involve critical areas. The Planning Department readily admits that without a critical area exemption for EPFs, some of these planned projects may be too expensive to complete.

While I empathize with the financial restrictions that the City is facing, it was exactly because of these types of predictable local issues that the State promulgated the GMA and the SMA. It was and is the intention of these Acts to provide for the long term protection of our State and local resources in the face of short term local pressures.

Accordingly, authorizing the creation of the requested EPF list is not only legally unnecessary and unwise, but could result in irreparable harm to our critical areas and buffers in violation of the GMA and SMA.

Thank you for your consideration on this matter and for the opportunity to present my public comment.

Wendy Harris
Bellingham Resident

Comments from Ms. Harris at March 17th Public Hearing regarding AB 17850

From: Wendy Harris
Via Email
Date: 3.16.08
Exempting Essential Public Facilities from Bellingham’s Critical Areas Ordinances.

Reference is made to my public comment regarding AB17849, which is incorporated herein. The Bellingham Planning Department is requesting an exemption to the processing and permitting procedures applicable to construction of Essential Public Facilities (“EPF”) within Critical Areas and buffers created pursuant to the Growth Management Act (“GMA”) and the Shoreline Management Act (“SMA”).

This represents an attempt by the Planning Department to avoid its legal, but expensive obligations to protect Critical Areas and buffers while planning for, and accommodating growth. As a result, the requested exemption largely ignores the purpose and intent of designating Critical Areas and buffers, and may result in irreparable harm.

The Planning Department argues that this request is not really an exemption since Bellingham law will still require EPFs to meet strict alternative performance standards. However, review of the alternative standards reveals that they are not objective and quantifiable, but subjective and weak.

Under the first alternative standard, the proposed facility must meet the City definition of an EPF and appear on the City’s list of EPFs. However, as discussed in my public comment regarding AB17849, the proposed list of EPFs, was, in actuality, drafted to incorporate current and pending EPF projects. Moreover, the Planning Department’s requested list, by definition, generally exceeds the usual type of facilities contemplated under the GMA, (i.e., those hard to site) and by their own admission, is motivated by the desire to save money.

The language in the second alternative performance standard is unclear and susceptible to subjective interpretation to a degree that renders it rather powerless. Under the second alternative standard, the exempted activities “shall use reasonable methods to avoid potential impacts to Critical Areas and their buffers”, upon threat of required mitigation. This language is not only unduly vague, but does not equate to a “no net loss” standard, since “any incidental damage to, or alteration of, a Critical Area that is not a necessary outcome of the exempted activity shall be restored or replaced.”

Finally, the third alternative standard requires that all exempted activities “be conducted using the best management practices that result in the least amount of impact to Critical Areas”, again upon threat of required mitigation, and additionally, while under City “observation.” However, given the admitted resource problems facing the City, and its prior history on enforcement of environmental standards, it may be problematic for the City to be successful in its efforts to ensure compliance with best management practices.

It is noteworthy that the GMA requires the siting of EPFs, but does not require that they be sited within Critical Areas. The City of Bellingham did not adopt exemptions for the citing of EPFs within its CAOs, (nor were they legally obligated to do so). However, Chapter 16.16 of the Bellingham Municipal Code (“BMC”), pertaining to Critical Areas, does allows for the siting of EPFs through the normal Critical Area permit process, a process created to ensure adequate protection of our Critical Areas. BMC 16.55.070 states that:

Any proposal to alter any Critical Area and/or required buffer including, but not limited to clearing, grading, draining, removal of vegetation, construction of buildings, facilities, utilities and related infrastructure shall require a Critical Area permit unless expressly exempted as provided under section 16.55.080.

There is no express exemption for EPFs under BMC 16.55.080, and further, BMC 16.55.450.B states that EPFs shall not be sited within geologically hazardous areas unless there is no other practical alternative.

Simply put, the Planning Department wants to extend San Juan Boulevard through a number of wetlands and creeks; construct a multi-modal arterial connection at the corner of Birchwood and Squalicum Parkway, which is surrounded by wetlands; construct a Yew Street reservoir through steep slopes and wetland; expand Post Point treatment plant into Critical Areas near the lagoon and bay, and expand the water treatment plant into the Critical Areas and steep slopes surrounding Whatcom Creek. They want to build master planned facilities at Squalicum Creek Park (phase 2) located within the Squalicum Creek buffer, and public trails through wetlands and buffer areas. And they want to do all of this while avoiding the financial expense and environmental protection that results from following the normal Critical Area permitting process.

This negates the very purpose for which the GMA and SMA were implemented. Critical Areas were mandated by the State to counter the local growth and development pressures that are at the very heart of this current matter, and which have already resulted in destruction and loss of many of the natural resources within our City and County. Accordingly, I call upon the City Council to uphold and enforce Bellingham’s Critical Areas Ordinances by refusing to approve the requested EPF exemption in the form presented here tonight.

Thank you for your consideration of this matter and for the opportunity to present my public comment.

Wendy Harris
Bellingham Resident

Additional background information can be found:

Department of Ecology Register:

SEPA Guide for Citizens:

City of Bellingham Municipal Code:

Latte Republic Commentary:

Ms. Harris has covered all of the procedural points, leaving the City only one logical path of action: rescind the DNS, start over, then return to the Planning Commission.The re-issue of the DNS raises substantive questions: 1) How many critical areas would be impacted by this decision? 2) How do staff decision designating EPF's get elevated to equal standing of legislative designations?

The adoption of these amendments as written will be remembered as the worst abdication of legislative power in the history of Bellingham.

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