Whatcom County Permit Extension Ordinance Invalidated

On August 2, 2011 the Western Washington Growth Management Hearings Board (the “Board”) invalidated Whatcom County Ordinance No. 2010-067, which provided a one-time economic hardship extension of land use permit expirations.  The Ordinance allowed property owners to extend the vested status of land use permits, which were set to expire between December 2010 and March 2012,  for an additional two years.

For example, someone with a vested conditional use permit, which was to expire on January 1 2011, could apply to extend the conditional use permit such that it would not expire until January 1, 2013.  In order to obtain the extension, the applicant was required to attest that the extension was necessary due to adverse market conditions and/or an inability to secure financing.  The Ordinance itself expired in June of 2011, meaning that no hardship extensions were granted after June of 2011.

Despite the expiration of the Ordinance, the Board ruled the Ordinance to be invalid.  The Board found that Whatcom County did not comply with the State’s Environmental Policy Act (“SEPA”) and Growth Management Act (“GMA”).  The Board’s order can be found here.  The Board further remanded the Ordinance for compliance with SEPA and the GMA, meaning that Whatcom County must somehow bring its expired ordinance into compliance with these state statutes.

It is unclear what this decision means for property owners who obtained hard ship extensions under the Ordinance.  Pursuant to the GMA, rulings of invalidity are prospective in nature and generally do not apply to vested project.  Some may argue, however, that because the extensions granted under the Ordinance are ongoing, the Board’s order may affect these extensions.

Thus, the Board’s order may lead to uncertainty in regard to the status of permits that were extended under the Ordinance.  Also unclear is the process the County will use to bring the Ordinance into compliance with the Board’s order.  The County will likely be addressing these issues later this fall.  I will provide more information on this topic as it becomes available.

Incentive Zoning Program Considered by City of Bellingham

As discussed in a prior post, the City of Bellingham has been working on an Incentive Zoning Program for affordable housing development.  At its May 10, 2010 meeting, the City Council identified options for an incentive program; and on June 21, 2010 the Council directed Staff to develop an ordinance that would require certain residential developments to include a percentage of affordable units.

One of the proposals currently being considered by the Council is that any development consisting of ten or more residential units, which is located  in an area that has been upzoned or rezoned to residential use, provide for twenty percent of its units to be “affordable.”

Persons whose income level does not exceed 80% of the county median income would be qualified to own or rent these affordable units.  In lieu-fees would be allowed under to be specified circumstances and density bonuses awarded for provision of the affordable units.

It is unclear whether the proposal being considered by the Council will be a mandatory program. “Incentive Zoning Programs”  tend to be voluntary whereby a developer voluntarily provides affordable units in return for a density bonus or other incentive.  The issue of a mandatory vs. voluntary program will likely be at the crux of the discussion when a draft ordinance is released.

Among the other issues that should be considered in enacting an incentive ordinance are:

How much affordable housing already exists in Bellingham?

Where is existing affordable housing concentrated?

What is the true need for additional affordable housing units in the current economic climate?

Where are additional affordable housing units needed in terms of locale?

Who should bear the cost of providing additional affordable housing?

Are density bonuses adequate incentives or compensation for providing below market units?

I will continue to provide updates on the City’s Incentive Zoning Program as the issues winds its way through the City’s legislative process.

County Council Continues Work on Rural Element

The Whatcom County Planning Commission’s recommendations regarding LAMIRDs and the Rural Element are currently under consideration by the Whatcom County Council. A link to the power point presentations provided by Staff to the Council can be found here.

With regard to the rural residential areas (i.e. Chuckanut, Fort Bellingham, Hinotes Cortner, Sandy Point, Lake Samish, etc.), the Council is considering a density overlay whereby property owners would be able to create or build on parcels less than five acres if 70% of the parcels within 500 feet are already developed at a density higher than one house per five acres.  For example, although the Fort Bellingham area would be rezoned to either RR5A or  R5A (one house per five acres), property owners could still create parcels one or two acres in size as long as the surrounding area already contains similarly sized parcels.

The Council is also considering whether to accept the Planning Commission’s recommendations designating certain LAMIRDs along the Guide Meridian and downzoning areas outside of the proposed LAMIRD boundaries.  At issue is whether these commercial areas along the Guide Meridian can simply be designated for general commercial use or whether a tight boundary needs to be drawn around these areas and uses within these areas limited in size.

As discussed in my earlier posts on this subject, a number of businesses currently operate along the Guide Meridian in Whatcom County.  Given that a major arterial runs through this area it is difficult to see this part of Whatcom County as ever reverting to a more pastoral rural or agricultural area.  The current Council appears to recognize the reality of the existing character of this area and work continues on how to articulate an appropriate zoning designation.

The Council will be holding another work session on these issues on June 22.

Bellingham Extends Land Use Permits

Recognizing the current economic hardships faced by developers and property owners, the State of Washington and its local jurisdictions  have taken steps to extend land use approvals while developers wait for financing in this credit-tight economy.

On March 17, Washington State Governor Christine Gregoire signed into a law a bill extending preliminary plat approvals from 5 to 7 years.   Cities and counties, including King County, Snohomish County, Pierce County, Everett, Seattle, Marysville, Redmond, and other municipalities have enacted land use permit extension ordinances. These ordinances ensure that the money and effort invested in land use applications is not lost due to the current economic climate.

On Monday evening, the Bellingham City Council approved an ordinance granting a one-time economic hardship extension of vested status to most land use approvals.  To obtain the extension, an applicant must file a written extension request, including a sworn declaration that the work authorized by the land use approval will be delayed as a result of adverse market conditions or inability to secure financing.  An application fee of approximately $107 must also be submitted.

On May 25, the Whatcom County Council is scheduled to hold a hearing on a new draft  land use hardship extension ordinance.  The new ordinance will be introduced at the Council’s May 11 meeting, and should be available for review on the County’s website approximately 5 days prior to the meeting.  Hopefully, Whatcom County’s new ordinance will also give due consideration to the hardships faced by landowners and developers  in this difficult economy.

***An update to this post, on May 10, the Bellingham City Council amended its hardship extension ordinance to require that applicants attest that the work authorized by their land use approval will be delayed due to an inability to secure financing (the “adverse market conditions” provision was removed).  The final ordinance can be found here.

Bellingham Publishes New Draft Big Box Ordinance

Earlier today, the City of Bellingham posted a Draft Modified Ordinance that would amend its Retail “Big Box” Ordinance.   As discussed in earlier posts, the City’s current Big Box Ordinance bans retail establishments larger than 90,000 square feet.

The City has been holding ongoing discussions on allowing larger stores in  certain areas of the Guide Meridian/Cordata Neighborhood and Meridian Neighborhood, namely the area between Bellis Fair and  Walmart as well as along Bakerview where  Fred Meyer is located.  During prior work sessions, the Council discussed allowing exceptions to the big box ban, as long as retailers met certain criteria including paying a living wage, offering a certain percentage of locally produced goods, and meeting certain green factor goals.

The latest iteration of the ordinance does not include the living wage or local production criteria.  Instead the proposed ordinance would allow any retailer, which is not deemed to be a “superstore”,  expand beyond the 90,000 square foot limitation if it attained LEED silver or equivalent building certification.

A “superstore” is defined as any retail establishment that devotes more than 10% of its sales floor area to non-taxable merchandise (i.e. groceries).  Membership clubs, however, are excluded from the definition of superstore.

Consequently, a membership store such as Costco would be able to expand beyond the 90,000 square foot limit as long as it meets the green building criteria.  Walmart, however, would not be able to expand beyond this limit if 10% or more of its sales floor area is dedicated to grocery sales.

The City Council will be holding a public hearing on April 12 on this newly proposed ordinance.

Bellingham Releases Employment Lands Study

Last week, the City of Bellingham released Phase II of its Employment Lands Study.  The stated purpose of this study is to enable Bellingham to better plan for and support economic growth.

One of the key recommendations from the Study is to establish appropriate land use regulations.  Bellingham has a reputation for being one of the toughest places in Washington to obtain land use development approvals.  One of the hurdles that any developer in Bellingham faces is a lack of predictability and uniformity in the City’s zoning regulations.

Zoning differs throughout the City, based upon in which neighborhood your property is located.  Bellingham is divided up into a number of different neighborhoods and each of these neighborhoods has a neighborhood plan.  The neighborhood plan is the policy document that is provides  guidance for the specific zoning and land use regulations for each neighborhood.

The Samish Neighborhood, for example, is bounded by I5 to the west, Samish Way to the south, the city limits to the east, and consolidation to the north.  The Samish Neighborhood Plan divides the neighborhood into numbered areas, each of which has different land uses allowed (i.e. Area 2 is commercial, Area 4 is residential, etc.)  The City’s zoning table further details the uses, building size, and other special requirements for each area.

One of the results of planning on an individualized neighborhood basis is that a commercial designation in one neighborhood can differ very much from a commercial designation in another neighborhood.  The rationale for this is  that the character of one neighborhood may dictate that certain uses be prohibited that would otherwise be allowed in another neighborhood (i.e. different commercial uses in the downtown core may not be appropriate in a more residential area such as parts of the Samish Neighborhood).

The problem, however, is that the City now has a number of different areas with very different zoning regulations and this system does not lend itself to predictability or uniformity for those seeking to develop in the City.  Especially, in areas where the City is trying to encourage growth and development, Bellingham needs to revise  its zoning code to provide not only for more predictability for developers and property owners but also flexibility with regard to density, parking, and mix of uses.

Developing more transparency and certainty in its land use regulations is key to the City not only communicating a business-friendly attitude but also fostering economic development.

Bellingham Explores Inclusionary Zoning Options

Earlier this month, the  Bellingham City Council directed Staff to review options for implementing an inclusionary zoning law.   Inclusionary zoning ordinances mandate that developers make a portion of their project affordable to low to moderate income households.  Inclusionary zoning programs often include density bonuses in an attempt to offset project costs and compensate for reduced profits.  Whether these density bonuses truly are adequate offsets is up to debate.

One reason that inclusionary zoning is  controversial is that, as a practical matter, it taxes developers to pay for what is in fact a community wide problem.  The question thus arises as to whether it is fair to make individual developers pay for an affordable housing problem that affects the city as whole.

A study undertaken by HUD, indicates that inclusionary zoning ordinances in California resulted in an increase in single family home prices and an increase in the number of multifamily unit developments.   Although  inclusionary zoning in Bellingham may not have exactly the same results, this study should be considered in determining whether inclusionary zoning is a suitable option here.

Other options do exist to create more affordable housing including incentive zoning and creation of a housing trust fund.  Incentive zoning is a voluntary approach whereby a municipality waives certain requirements for developers or provides density bonuses in exchange for the developer providing affordable housing.   Bellingham has already implemented this approach in certain neighborhoods, including Old Town.

The City Council is scheduled to revisit this matter in February and will need to decide whether to use a carrot vs. stick approach (incentive vs. inclusionary zoning) in regard to providing new affordable housing.  Alternatively, the City could create a housing  trust fund and/or promote existing infill techniques, such as attached and unattached dwelling units, carriage houses, etc. to create a  more diverse and affordable housing stock.

The Council will also need to decide what type of affordable housing is needed in Bellingham, is it lower-priced single family homes? or affordable rental housing for those who cannot or do not desire to own a home? more multi-family housing? or some combination of these?  Stay tuned for further updates on this important issue.

What is “Sprawl”?

Next Tuesday, the Whatcom County Council will be holding a public hearing regarding proposed changes to its urban growth areas (UGAs).  The current proposal eliminates much of the existing Ferndale and Blaine UGAs and also removes portions of the Bellingham and Lynden UGAs.

Advocates for reducing the size of UGAs throughout Whatcom County do so on the basis of limiting and/or halting “sprawl.”  Although the term “sprawl” often gets bandied about in land use discussions, the term is rarely used correctly.

Sprawl is often used as a catch-all term to encompass any type of development outside of an established neighborhood.  Washington’s Growth Management Act, however, refers to “sprawl” as the inappropriate conversion of undeveloped land into sprawling, low-density development.  Thus, sprawl is not development in or expansion of an urban growth area per se.

Cities, especially Bellingham, have had a difficult time promoting the infilling and densification of existing neighborhoods.  As a consequence, denser development has occurred at the edges of cities and outside of city limits and within adjacent urban growth areas.

Development at the edge of a city or within its urban growth area is not “sprawl” if the development is urban in nature.   Residential development at more than 4 units per acre and/or commercial or mixed use development adequately served by utilities and transportation facilities are examples of urban types of development.

In preventing “sprawl” counties must consider what in fact causes low density development in rural areas and whether reducing UGAs encourages or discourages further development in rural areas.  In other words, those concerned about sprawl should consider the ramifications of shrinking urban growth areas to such an extent that lack of land availability leads to low density development in rural areas – “sprawl.”

Bellingham Council Considers Exception to Big Box Ban

The Bellingham City Council will be holding a public hearing on Sept. 21 to consider exceptions to its big box ban.  As I discussed in an earlier post, the Planning Commission held a hearing on this issue earlier this summer.

In a close 3-2 vote, the Planning Commission recommended approval of a new ordinance that would allow exceptions to the 90,000 square foot size limit for retail establishments in Bellingham.  The new ordinance would allow these larger stores in certain areas of the Guide Meridian/Cordata Neighborhood and Meridian Neighborhood, namely the area between Bellis Fair and  Walmart as well as along Bakerview where  Fred Meyer is located.

As demonstrated by the Planning Commission vote, this is a controversial issue in Bellingham.  On one side of the issue are those who see these larger retail stores as essential to the economic welfare of the City as well as an affordable shopping option in these economic hard times.  On the other side of the issue are those who want to see a more pedestrian friendly, environmentally oriented city with more urban village types of  development.

Staff has attempted to bring both sides together by proposing a new set of green factor landscaping requirements, which are  primarily aimed at reducing impervious surfaces, for retail uses that are larger than 90,000 square feet.

Using building size to drive planning decisions leads to the situation that we are now faced with – a zoning regulation aimed at a few specific business with unintended citywide economic and planning consequences.  Planners have a number of tools to ensure that development is well suited to a particular area or neighborhood, including  landscaping requirements, impervious surface regulations, traffic concurrency, public amenities,  design regulations, etc.   These elements are equal to if not more important than building size in planning for an area and thus building size alone should not necessarily control development.

It should be an interesting hearing as Council members will need to reconsider both the economic and planning impacts of the existing big box moratorium.  The economy looks a lot different than when the ordinance was originally passed in February of 2007.  The question is, is whether the Council’s position is any different.

Port of Bellingham Primary August 18

The Primary Election for the Port of Bellingham is August 18th.  Two Port Commissioners – Doug Smith and Scott Walker – are up for reelection as discussed in an earlier blog post.

The Port operates the Bellingham Airport, the marinas in Blaine and Bellingham, and is the owner of the majority of the old GP site, which is slated for redevelopment.  The Port of Bellingham also receives a portion of all property taxes levied in Whatcom County.

Redevelopment of the Bellingham waterfront is one of the largest brownfield redevelopment projects in North America.  The direction the Port takes with regard to this redevelopment will have long lasting ramifications for our community.  Thus, this year’s Port Commissioner Elections could not come at a more critical time for Bellingham and Whatcom County.

John Blethen, who is running against Scott Walker in District 1, will bring a practical and reasoned approach to waterfront redevelopment as well as economic development in Whatcom County.  John has a history of waterfront involvement and is a longtime local business owner with a great deal of experience and knowledge to offer  in regard to waterfront redevelopment and economic development countywide.

Both Doug Karlberg and Michael McAuley, who are running against Dough Smith in District 2, would be good replacements for Smith.  Each would bring much needed fresh ideas and critical thinking to this position.  Doug Karlberg is a commercial fisherman who understands the need for a working waterfront and for a sustainable economy.  Mike McAuley is a neighborhood activist who will bring energy and intelligence to this position.

The culture of the Port has long been one of lack of transparency and lack of responsiveness to economic changes in Whatcom County.  New commissioners are needed to bring accountability to the Port and fresh ideas for waterfront redevelopment.