City of Bellingham Hearing Examiner

**Hearing Examiner Rice, on the proceeding's significance:** "Everyone has a lot of time and energy invested in being here today, and I want to assure everyone it is my intention to conduct these proceedings as fairly as possible." **Dr. Richard Horner, on construction phase risks:** "Because one year of poor construction practices at a challenging site, like Woods at Viewcrest, can result in as much sediment discharge as occurred in decades or even centuries before the site was cleared and worked." **Dr. Horner, on the city's environmental review:** "The City has not taken a hard look at this, and has failed to require the necessary increased protections in the form of stormwater best management practices." **Dr. Horner, on Mud Bay's ecological significance:** "The city has characterized Mud Bay as, and I quote here, 'Bellingham's richest and most biologically diverse estuary.'" **Dr. Horner, on modular wetland systems:** "The modular wetland system manufacturer itself, their own

## Meeting Overview On January 12, 2026, Hearing Examiner Sharon Rice convened the first day of an appeal hearing in the City of Bellingham Land Use Calendar, marking the beginning of what would be a complex multi-day proceeding involving a controversial development project known as the Woods at Viewcrest. The consolidated hearing addressed both a SEPA (State Environmental Policy Act) appeal and permit applications for a 38-lot subdivision proposed by the ANC Jones Family LP on property at 352 Viewcrest Road. The appeal was filed by Protect Mud Bay Cliffs, a citizens group deeply concerned about environmental impacts to one of Bellingham's most sensitive aquatic ecosystems. The hearing brought together three parties: the appellant citizens group, the applicant Jones family, and the City of Bellingham, each with significant stakes in the outcome. This was no routine land use hearing — it involved a project that had generated over 500 public comments totaling 1,700 pages, reflecting intense community concern about development impacts on Mud Bay, described by the city as "Bellingham's richest and most biologically diverse estuary." ## Opening Procedures and Jurisdictional Framework Hearing Examiner Rice began with extensive opening remarks, establishing the legal framework and procedural rules that would govern the consolidated proceeding. The hearing addressed both a SEPA appeal of the city's Mitigated Determination of Non-Significance (MDNS) issued July 25, 2025, and permit applications including subdivision, variance, critical area permits, and shoreline development permits. Rice emphasized the hybrid nature of the proceedings, conducted both in-person and via Zoom, with strict protocols to protect the audio record that would be crucial for any potential appeals. She disclosed her contractual relationship with Bellingham and other jurisdictions, her lack of personal interests in the project, and the absence of any ex parte communications, satisfying the state's Appearance of Fairness requirements. The procedural complexity was significant: the appeal portion would involve only the three parties (appellant, applicant, and city) with opportunities for cross-examination but no public comment, while the permit portion scheduled for January 14th would include public testimony. Rice announced that rather than the standard 10 business days for a decision, she would need until March 31, 2026, reflecting the case's complexity and scope. ## Exhibit Disputes and Legal Maneuvering Before substantive testimony began, the parties engaged in detailed negotiations over the admissibility of exhibits. The appellants had offered 155 exhibits, creating a substantial evidentiary record. After pre-hearing conferences, the applicant agreed to stipulate to the admission of numerous exhibits, including Appellant Exhibits 1 and 2, 4 through 11, 13 through 20, and many others, while agreeing to strike others including Exhibits 26, 54, 64-66, and multiple others. This procedural dance reflected the high stakes and careful preparation by all parties. The sheer volume of documentation — with exhibits numbered into the 150s — demonstrated the extensive technical analysis and public engagement this project had generated. The strategic decisions about which exhibits to admit, stipulate to, or strike would shape the evidentiary foundation for the hearing. ## The Expert Testimony Begins: Dr. Richard Horner The hearing's substantive phase opened with the appellants calling Dr. Richard Horner, an environmental engineer with over 50 years of experience specializing in urban stormwater management. Dr. Horner's credentials were impressive: a PhD from the University of Washington, 44 years of university-level teaching and research, and extensive consulting on stormwater management throughout the Pacific Northwest. Horner had conducted a detailed desktop review of the project's stormwater management plans, producing two critical comment letters dated March 18, 2024, and November 5, 2025. His testimony would prove to be the centerpiece of the appellants' case, providing scientific foundation for their arguments that the project posed significant threats to Mud Bay and Puget Sound. ## Environmental Context: Mud Bay's Critical Importance Dr. Horner's testimony established the environmental stakes involved in this appeal. Mud Bay, also known as Chuckanut Bay or the Chuckanut Creek Pocket Estuary, represents what the city itself has characterized as "Bellingham's richest and most biologically diverse estuary." This embayment of Puget Sound serves critical ecological functions, supporting the migration of juveniles and adults of five salmonid species, some endangered or threatened, along with waterfowl foraging and eelgrass habitats. The significance extends beyond local ecology to regional recovery efforts. Puget Sound as a whole has experienced substantial water quality and ecological deterioration, becoming the subject of a recovery program requiring net reduction, not increase, of pollutant additions. Against this backdrop, any new development's stormwater impacts take on heightened significance, particularly when located on steep slopes above such sensitive receiving waters. ## Construction Phase Impacts: A Cascade of Concerns Dr. Horner's technical analysis revealed multiple interconnected problems with the proposed construction phase stormwater management. The site presents challenging conditions: slopes up to 30% in work areas, with cliff areas reaching 80% grade, combined with predominately erosive soils that the project's preliminary stormwater report had mischaracterized. The expert testimony revealed that the applicant's stormwater report incorrectly identified the predominant soil type. While the report claimed the main soils were Everett Urban Loam (Unit 52) with better erosion characteristics, Horner's independent analysis using USDA Web Soil Survey data found that Naughty Loam (Unit 110) actually predominates. This distinction matters significantly: Naughty Loam has a K-factor of 0.32 compared to Everett Urban's 0.24, making it approximately 33% more erosive and rated as having "severe to very severe erosion hazard" versus "slight to moderate" for Everett Urban. The implications cascade through construction planning. Using the Universal Soil Loss Equation, Horner demonstrated that a 30% slope generates more than 10 times the erosion of a 3% slope. Combined with the more erosive soils, the construction phase presents extraordinary challenges for sediment control — challenges that Horner argued were neither adequately recognized nor addressed in the applicant's preliminary plans. ## Missing Technical Analysis Perhaps most damaging to the applicant's case was Dr. Horner's testimony about missing hydrologic and hydraulic modeling. The 2019 Department of Ecology Stormwater Manual requires detailed analysis to properly size and design stormwater management systems, yet Horner found no evidence that required hydrologic modeling using the Western Washington Hydrologic Model had been completed. This absence of modeling creates a cascade of deficiencies. Without knowing the volumes, flow rates, and patterns of stormwater runoff, engineers cannot properly size sediment control devices, design conveyance systems, or protect receiving waters from high discharges. The lack of hydraulic analysis compounds these problems, leaving unclear how stormwater will be routed through the site during construction. Dr. Horner testified that he had reviewed "dozens to hundreds" of stormwater plans over his career and commonly saw this essential modeling completed at similar stages of project development. The absence here was particularly concerning given the site's challenges and the sensitivity of receiving waters. ## Inadequate Construction Controls The project's Construction Stormwater Pollution Prevention Plan (SWPPP) came under withering criticism. While the applicant had cited the 13 required elements from the Ecology manual, Dr. Horner testified the coverage was superficial — less than five pages for all 13 elements, lacking site-specific detail and mostly "parroting the manual's directions" rather than proposing appropriate solutions for this site's specific challenges. Specific deficiencies included: - Relying on quarry spalls rather than wheel washes to prevent sediment tracking - Only one general sentence about controlling flow rates with no recognition of steep slope challenges - Planning to use crude sediment ponds rather than modern chemical treatment and filtration systems - Inadequate attention to pollutants beyond sediment, including metals, organics, and nutrients - Insufficient slope stabilization planning for the site's demanding topography ## Post-Construction Concerns: Long-Term Pollution Dr. Horner's analysis extended beyond construction to the development's operational phase, when residents would be living in homes and generating ongoing stormwater pollution. The proposed system would treat only pollutant-generating hard surfaces (essentially roads) through two modular wetland systems, leaving untreated runoff from residential properties, lawns, driveways, and other sources. This partial treatment approach troubled the expert, particularly given Mud Bay's status as what he characterized as a Category 1 estuarian wetland deserving the highest level of protection. The modular wetland systems, while approved by the Department of Ecology, showed concerning performance limitations in manufacturer data: only 37% removal of dissolved copper, 60% removal of dissolved zinc, and just 23% removal of nitrogen — the most crucial nutrient in marine environments. ## Emerging Contaminants: The 6PPDQ Problem Dr. Horner introduced testimony about 6PPDQ (6PPD-quinone), an emerging tire-related pollutant that has devastated coho salmon populations. This chemical, formed when a tire preservative reacts with atmospheric ozone, has been identified as causing acute pre-spawn mortality in adult coho salmon and lethal impacts to about 80% of juvenile coho in testing. The testimony highlighted how quickly environmental science evolves and how development decisions made today must account for emerging threats. While the Department of Ecology has identified bioretention as the best available technology for treating 6PPDQ, the applicant had rejected bioretention systems categorically, assuming they wouldn't work in the site's soils. ## Cross-Examination Reveals Scope and Limits The city's cross-examination, conducted by Deputy City Attorney James Erb, focused on Dr. Horner's unfamiliarity with Bellingham's specific development processes and stormwater regulations. Erb established that Horner had not reviewed Bellingham Municipal Code Chapter 15.42, which governs local stormwater management, and was not familiar with the city's multi-step development approval process. However, these limitations didn't significantly undermine Horner's core technical opinions. His expertise clearly lay in stormwater engineering and environmental impacts, not local procedural requirements. The cross-examination did establish that the preliminary stormwater reports were, by definition, preliminary — with more detailed analysis typically required at later stages of development review. ## Applicant's Vigorous Challenge The applicant's cross-examination, led by attorney Tim Schermetzler, proved more aggressive and comprehensive. Schermetzler systematically challenged Dr. Horner's qualifications and methods, establishing that while Horner had extensive academic and consulting experience, he had never prepared stormwater management plans himself, was not a licensed professional engineer, and had not visited the project site. The questioning revealed that Horner had spent approximately 54-55 hours total reviewing the project and writing his two comment letters — a relatively modest time investment for such a complex technical analysis. Schermetzler also established that Horner typically represented plaintiffs or appellants in legal cases, potentially suggesting bias against development projects. However, Dr. Horner's responses demonstrated the depth of his knowledge and the scientific basis for his concerns. When pressed about his desktop analysis versus site-specific investigation, he maintained that the differential between what was proposed and what he knew was necessary based on best available technology was so substantial that site visits weren't necessary to identify the fundamental problems. ## Technical Alternatives: Bioretention vs. Modular Systems One of the most technically detailed portions of testimony involved Dr. Horner's recommendation for bioretention cells rather than the proposed modular wetland systems. He described a sophisticated three-layer media blend developed through ecology-supported research: a primary layer of 70% sand, 20% coconut fiber, and 10% biochar; a polishing layer of 90% sand, 7.5% activated alumina, and 2.5% iron aggregate; topped with compost mulch. Testing showed this bioretention media could achieve 94.6% removal of dissolved copper, 96% removal of dissolved zinc, and 71.3% removal of total phosphorus — dramatically outperforming the proposed modular wetland systems. Additionally, bioretention systems could be designed with underdrains and impermeable liners if needed, addressing the applicant's concerns about site soil limitations. The maintenance advantages were equally compelling. While modular wetland systems require media replacement every 6-24 months, Dr. Horner testified about bioretention systems maintaining performance for up to 8 years with more basic media blends than he was recommending. ## Legal and Procedural Complexities Throughout the cross-examinations, tensions emerged around the intersection of technical expertise and legal standards. When applicant counsel attempted to question Dr. Horner about SEPA's "hard look" standard and "significant adverse environmental impacts," appellant counsel objected that the witness was being asked for legal conclusions beyond his expertise. Hearing Examiner Rice navigated these boundaries carefully, allowing technical testimony about environmental impacts while preventing the expert from opining on legal standards he wasn't qualified to address. The tension reflected the challenge inherent in environmental appeals: translating complex scientific analysis into legal frameworks for determining whether agency decisions meet statutory requirements. ## The Stakes Going Forward As the first day concluded with cross-examination still ongoing, the hearing had already established the fundamental tension in this case. The appellants presented compelling scientific evidence of significant environmental risks from a project they argued lacked adequate analysis and protection measures. The applicant and city emphasized regulatory compliance, appropriate sequencing of technical analysis, and the preliminary nature of plans that would be refined through the development process. The testimony revealed a project navigating the intersection of steep terrain, sensitive aquatic ecosystems, emerging environmental science, and complex regulatory frameworks. Dr. Horner's expert analysis provided the appellants with powerful ammunition for arguing that the city's MDNS failed to take the requisite "hard look" at environmental impacts and that proposed mitigation measures were inadequate. With additional expert witnesses scheduled and the permit hearing phase still to come, this consolidated proceeding promised to test fundamental questions about how communities balance development rights with environmental protection, particularly in sensitive areas like Mud Bay. The technical complexity of stormwater management, the evolving science of aquatic ecosystem protection, and the passionate community engagement all pointed toward a decision that would have implications far beyond this single 38-lot subdivision. The hearing would continue with the stakes clearly established: Could this development proceed with adequate environmental protection, or did the combination of challenging site conditions, sensitive receiving waters, and incomplete technical analysis require either project redesign or outright denial? The answer would emerge through several more days of expert testimony, cross-examination, and ultimately, Hearing Examiner Rice's written decision by March 31, 2026.