City of Bellingham Hearing Examiner

The Bellingham Hearing Examiner conducted two complex land use hearings involving variance requests for challenging development sites. Both cases highlighted the ongoing tension between property rights and environmental protection in Bellingham's constrained topography. The first hearing addressed Scott Wickland's request for a public works variance at 1109 18th Street, seeking permission to extend an existing concrete driveway rather than build a standard residential street on terrain with grades exceeding 23%. The variance would allow access via an existing 10-foot-wide concrete driveway built in 2021 to serve the adjacent 1112 18th Street property. Public Works staff recommended approval, citing the infeasible 23% grade that exceeds the city's 15% maximum standard. The second hearing involved Trent Slusher's proposal to build a three-story home at 119 Ashley Street, requiring both critical area and zoning variances. The 8,000-square-foot lot is entirely within Lincoln Creek's 75-foot buffer zone. Slusher requested reducing the buffer to 23.5 feet and the front yard setback from 20 to 5 feet. Planning staff recommended approval with extensive conditions. Both hearings generated significant public opposition focused on safety concerns and environmental protection. The 18th Street case drew concerns about vehicles meeting nose-to-nose on the narrow, steep driveway with blind curves. The Ashley Street case prompted testimony from environmental advocates and neighbors worried about flooding, landmark tree removal, and cumulative creek impacts. Hearing Examiner Sharon Rice took extensive testimony and admitted multiple post-hearing documents, holding the record open through January 24th for technology-related public comment and applicant responses. Written decisions are expected by February 7-11, 2025, depending on post-hearing submissions.

**18th Street Variance (VAR 2024-0009):** - No decision rendered; written decision due February 7-11, 2025 - Public Works staff recommended approval - Key issue: Alternative to building standard street on 23% grade terrain - Safety concerns raised about 10-foot-wide shared driveway access - Applicant already installed fire hydrant at Knox/18th intersection - Stop work order issued for gravel work done without permit **Ashley Street Variances (CAP 2024-0055 & VAR 2024-0010):** - No decision rendered; written decision due February 7-11, 2025 - Planning staff recommended approval with conditions - Critical area variance: Reduce 75-foot Lincoln Creek buffer to 23.5 feet - Zoning variance: Reduce front yard setback from 20 to 5 feet - Landmark Tree Committee approved removal of 42-inch maple (Tree #31) - Conservation easement proposed for majority of lot **Post-Hearing Process:** - Record held open through January 24, 2025 for technology-related public comment - Additional documents admitted from public commenters during hearings - Applicant responses to new documents due January 24th - If post-hearing comment received, responses due January 28th

**Sharon Rice, on legal standards:** "The applicant is the party who bears the burden of proof. That term burden of proof simply means the applicant is the party whose job it is to provide evidence that successfully demonstrates the requested permit or the proposed project complies with the criteria for permit approval." **Brent Baldwin, on topographic challenges:** "18th Street right-of-way is in excess of over 20 to 23, 24% grade. The request tonight for the variance is to not have to build a minimum standard residential street. Public works in the city of Bellingham standards for street construction allow up to a maximum of 15% grade. So therefore, it would be infeasible to build a public street in that location." **Mackenzie Funk, on safety cooperation:** "I would like to support Scott in his variance if there's some basic safety fixes. I've told him that. I've said that in the letter, and I'd like to say it again. And don't mean to block that. I do think there's some practical fixes that could be done." **Steve Sundin, on reasonable use requirements:** "While we understand that there are individuals who want the property protected, we can't deny reasonable use. Otherwise, if we had rules that didn't include a variance provision, then we would be going around the city and purchasing those properties at fair market value for protection essentially." **Michael Fear, on environmental concerns:** "We believe that the variance request is so significant and in such a sensitive spot that it's going to have impacts potentially not only just in the immediate creek area and the neighbors, but also downstream and eventually into tributaries and salmon streams and the bay." **Scott Sanders, on development expectations:** "The investment into a property that he clearly must have known was encumbered by the 75 foot buffer zone is something that shouldn't just be granted because just because he bought it and can't use it otherwise. You should have known that and done better diligence on that."

# Bellingham Hearing Examiner — Two Critical Land Use Decisions ## Meeting Overview The January 22, 2025 Bellingham Hearing Examiner session addressed two complex land use matters that reveal the ongoing tension between property rights and environmental protection in Bellingham's hillside neighborhoods. Hearing Examiner Sharon Rice, conducting the hybrid proceeding from her remote location, presided over a public works variance request for 18th Street access and a critical areas variance for development near Lincoln Creek on Ashley Street. Both cases involved steep terrain, established driveways, and neighbors concerned about safety and environmental impacts. The 18th Street matter centered on Scott Wickland's request to access his property at 1109 18th Street by extending an existing concrete driveway originally built to serve 1112 18th Street. The Ashley Street case involved Trent Slusher's proposal to build a three-story house at 119 Ashley Street while reducing the required creek buffer from 75 feet to 23.5 feet. Both hearings drew passionate public testimony about precedent, safety, and the city's obligation to protect critical environmental areas. ## The 18th Street Access Dilemma The first hearing opened with Public Works Development Manager Brent Baldwin explaining that 18th Street's grade exceeds 20-24% in the area, making it infeasible to build to the city's maximum 15% street grade standard found in the Development Guidelines and Improvement Standards. The variance would allow Wickland to connect his property to an existing concrete driveway that serves neighboring 1112 18th Street, which received similar approval years earlier. Bruce Ayers, representing Wickland, emphasized the precedential nature of the request: **"All of the justifications for the variance for 1112 18th Street apply to 1109. They're on the same part of the slope. They're right across the street from each other."** Ayers noted that Wickland had been involved in the original 1993 application and had already invested in improvements including a fire hydrant installation at Knox and 18th Street to address emergency access concerns. The central safety issue emerged through testimony from neighbor Mackenzie Funk of 1112 18th Street, who detailed his concerns about the existing 10-foot-wide concrete driveway. Funk explained that the driveway has blind curves and steep grades that make it impossible for two vehicles to pass safely. Currently serving only one residence, coordination between multiple vehicles can be managed by phone calls. But adding a second property would create unavoidable conflicts. **"There is no way they could get around one another,"** Funk testified, describing scenarios where vehicles from both properties could meet nose-to-nose with no option except backing up steep grades on either concrete or gravel surfaces. He submitted additional documents during the hearing showing surveys that indicated Wickland had previously planned an easement to access 1109 via 19th Street through his other properties. Wickland responded that the proposed connection point at "Curve C4" provides visibility both up the hill toward Knox Avenue and down toward 1112, and would include a turnaround area that could serve as refuge during conflicts. **"The connection that we propose at 1109 on curve C4 provides a line of sight both to the north to Knox Avenue and to the sign up there at the top and to the southwest. You can look down the connection to the 1112 house,"** Wickland explained. Baldwin acknowledged the safety concerns raised but maintained his recommendation for approval, suggesting that if mitigation were needed, the entrance could potentially be widened and hardened to provide a passing area. **"If there was an area wide enough for two cars to pass, that seems logical that it would solve the issue of blindly running into a car coming up the hill,"** Baldwin noted, while emphasizing that both properties are single-family residences generating low traffic volumes. Rice questioned whether additional undeveloped properties along 18th Street might seek similar variances, potentially adding more traffic to the narrow driveway. Baldwin confirmed that any such requests would require the same variance process and analysis of alternatives, but acknowledged the precedential nature of the approval. ## Ashley Street Environmental Conflict The Ashley Street hearing presented a more complex environmental challenge, with Trent Slusher seeking both a critical areas variance to reduce Lincoln Creek's 75-foot buffer to 23.5 feet and a zoning variance to reduce the front yard setback from 20 to 5 feet. The 7,900-square-foot property is almost entirely within the creek buffer, making development impossible without significant variance relief. Environmental Planner Amy Dearborn explained that strict application of critical area protections would render the property completely unbuildable, requiring some form of reasonable use accommodation. **"The proposed development has been designed to balance protection of critical areas while allowing reasonable use of the private property,"** Dearborn testified, noting that the 970-square-foot building footprint would be smaller than many neighboring homes. Senior Planner Steve Sundin emphasized that the city's critical area ordinance specifically provides for reasonable use: **"The critical area ordinance is intended to protect the functions of critical areas while allowing reasonable use of a subject property... It is not the intent to deny a property owner of reasonable use of the property."** Opposition to the project came from multiple sources, led by Michael Fear of Whatcom Million Trees Project, who argued that the variance request was too significant for such a sensitive location. Fear, a former architect, questioned whether the building footprint had been truly minimized: **"When I look at that 970 square foot three-story footprint... I know that 2,700 or 2,900, whatever it totals up to, is not what I would consider more minimized kind of size, considering that with the creek and the variance."** Fear raised detailed concerns about the mitigation plan, noting that the proposed 45 replacement trees might not survive in the existing dense forest conditions, flooding risks, and deer pressure. He specifically objected to language in the Miller Environmental report that would excuse replanting requirements in case of "catastrophic flood or landslide events." The Sanders family — Randy, Scott, and George — provided extensive testimony about flooding history and neighborhood impacts. George Sanders presented photographic evidence of Lincoln Creek flooding, showing debris jams at the Ashley Street culvert and expressing concerns about increased foot traffic and social trail development. **"Every single piece of wood that created this log jam is a cut,"** George Sanders testified, showing flooding photos. **"If this lot is allowed to be developed, we are going to be fighting people making makeshift bridges, playing in the creek."** Scott Sanders questioned the timing of environmental assessments, noting that site visits occurred during the dry summer months when conditions would appear most favorable. He also challenged the variance criteria, arguing that purchasing an encumbered property doesn't automatically justify variance relief: **"The investment into a property that he clearly must have known was encumbered by the 75 foot buffer zone... shouldn't just be granted because just because he bought it."** Property owner Joseph Paquette, participating virtually, raised concerns about neighborhood traffic impacts, noise increases from tree removal, and potential erosion effects on downstream properties. As a civil engineer, he questioned whether the environmental assessments adequately considered long-term erosion impacts and future flooding scenarios. Ed Miller, the project's environmental consultant, responded to mitigation concerns, explaining that the city requires five years of monitoring with performance criteria and bonding to ensure tree survival. **"80% of the installed trees have to survive into five years and the city ensures that. Trees, the plantings aren't meeting the performance standards, then they have to be replanted."** Miller addressed flooding concerns by noting that Lincoln Creek appears well-contained within its incised channel, and that the proposed development would direct stormwater away from the creek into city systems rather than contributing to local runoff. ## Landmark Trees and Legal Standards Both hearings involved significant trees and interpretation of the city's recently adopted landmark tree ordinance. The Ashley Street property contains a 42-inch diameter Douglas fir that would remain protected, but a 31-inch tree proposed for removal sparked debate about the health-based exceptions to landmark status. City staff clarified that the landmark tree ordinance bases designation primarily on diameter measurements rather than health assessments, though the Landmark Tree Committee had recommended approval for the tree's removal. Neighbor Randy Sanders argued that the building location would impede water flow to tree roots, potentially violating the ordinance's prohibition against harming landmark trees through indirect means. Both cases highlighted the challenge of applying modern environmental standards to historically platted properties. The 18th Street lots were platted in the 1800s on terrain that exceeds current engineering standards, while the Ashley Street property had remained vacant for decades precisely because of its environmental constraints. ## Post-Hearing Procedures and Timeline Rice established detailed post-hearing schedules for both matters, holding the record open for additional evidence and responses. For the 18th Street case, the record remained open through January 24th for post-hearing public comment and applicant responses to materials submitted during the hearing, with potential extension to January 28th if additional public comments were received. The Ashley Street matter followed similar timing, with final decisions due February 7th or 11th depending on whether additional post-hearing materials were submitted. Rice emphasized that all participants would receive written copies of the scheduling requirements to ensure proper notification. ## Implications for Development and Environmental Protection These hearings illuminate the ongoing challenge Bellingham faces in balancing property rights with environmental protection and neighborhood character. Both cases involved properties where strict adherence to current standards would prevent any development, yet approval could set precedents affecting similarly constrained sites throughout the city's hillside neighborhoods. The technical complexity of the issues — from engineering standards for steep grades to mitigation sequencing for critical areas — demonstrates why these matters require specialized hearing examiner review rather than administrative approval. The passionate public engagement reflects residents' recognition that these decisions will influence how similar conflicts are resolved as development pressure continues in environmentally sensitive areas. Rice's careful questioning of both staff recommendations and applicant proposals showed the hearing examiner's role in ensuring all relevant factors receive consideration before final written decisions that will guide future development in Bellingham's challenging topographic and environmental conditions.