Hearing Examiner

**Dan McShane, on engineering requirements:** "I like to tell this joke, as geologists, we create the problems for the engineers, and they have to solve it." **Paul Brock, on pedestrian safety:** "If there's two cars and a pedestrian, you kind of have to... you fend for yourself, jump off the side of the road, or in the ditch, or in somebody's driveway, or something. Like, hopefully somebody slows down for you." **Dan McShane, on rockfall hazards:** "The city staff report said they wanted the pipe on the surface. Well, you would have rocks hitting that pipe. And, I would probably have to go to an engineer to say, what happens if a two-ton rock with a sharp angle hits that pipe." **Barry Wenger, on stormwater discharge:** "Absolutely no additional discharge, directly, stormwater discharge, into... Mud Bay." **Paul Brock, on community character:** "Viewcrest is interesting because people walk up and down Viewcrest, and then, the neighbors chat on Viewcrest. And so, it's kind of a mee

# Real Briefings — Woods at Viewcrest Appeal Hearing Day 2 ## Meeting Overview Day 2 of the appeal hearing for the Woods at Viewcrest development proposal convened on January 13, 2026, before Hearing Examiner Rice. The session continued testimony from Day 1, focusing on cross-examination of appellant expert witness Dan McShane (joining remotely from overseas at 6 PM local time) and direct examination of additional appellant witnesses Paul Troutman, Paul Brock, Robert Dillman, and Barry Wenger. The hearing examined appeals of the City of Bellingham's Mitigated Determination of Non-Significance (MDNS) for a 38-lot subdivision proposal. Key issues included stormwater management, geological hazards, traffic safety, and environmental impacts to Mud Bay. ## Cross-Examination of Dan McShane The session began with cross-examination by City Attorney James Erb, who systematically walked McShane through his review timeline and the multiple reports submitted by Element Solutions. McShane confirmed reviewing three documents: the October 2022 geotechnical report, and two November 2024 memos responding to his March 2024 comment letter and city requests. Erb highlighted SEPA condition number one, which incorporates mitigation measures requiring compliance with consultant recommendations. McShane characterized Element's suggestions as alternatives rather than definitive solutions, noting they would require additional engineering design. When asked about project feasibility, McShane agreed Element was "implying that the project is feasible" but maintained concerns about specific implementation details. The city's examination focused on establishing that additional information would be required before final plat approval — a typical phased approach. Erb walked through Element's conclusion that the "combination of grades and subsurface conditions is conducive to maintaining long-term stability" while acknowledging exclusions for special geohazard areas. Regarding stormwater management, McShane confirmed the site is "generally considered infeasible for infiltration" based on soil test results, agreeing that applicants need a plan for managing stormwater and that piped outfall represents one viable approach. Applicant attorney Tim Schermetzler's cross-examination clarified that stormwater outfalls in critical areas are allowed under city code "after some analysis, when you can't do avoidance." McShane confirmed he has experience with outfall projects on steep slopes throughout Puget Sound, though wouldn't call them "typical." A key exchange occurred over rockfall hazard assessment. Initially appearing to testify there was "no hazard assessment for the southeast bluff," McShane clarified under questioning that there was "a hazard assessment for rockfall" along the proposed pipe route. However, he maintained the broader southeast bluff slope itself needs evaluation beyond just the pipe alignment. Schermetzler pressed McShane on his ability to assess catastrophic failure likelihood for the proposed HDPE pipe. McShane indicated he couldn't evaluate specific failure probability without knowing the final design methodology, though he noted Element had recognized rockfall hazards in a 100-foot section with "relatively recent failures." The examination revealed tension between preliminary-level analysis appropriate for plat approval versus detailed engineering required for final design. McShane consistently advocated for more detailed analysis upfront, while the city and applicant emphasized the standard practice of phased review. ## Appellant Fact Witnesses ### Paul Troutman - Marine Resources Council Paul Troutman, former Whatcom Marine Resources Council member and "champion" of the Olympia Oyster Restoration Project in Mud Bay, testified about shellfish restoration efforts from approximately 2016-2017. He described monitoring multiple sites using substrate recruitment and tile stacks to assess larval recruitment. Troutman testified that Site OLI7, closest to the proposed development, "showed to be the most promising based on the larval recruitment and juvenile oysters observed," while Sites OLI3 and OLI4 showed "no larval recruitment and no juvenile oysters." He described physical differences, noting successful sites had "fairly firm substrates" while unsuccessful areas were "very mucky" with "high organic matter." Regarding water quality monitoring, Troutman explained MRC's efforts to demonstrate improvement following the Department of Health's closure of Mud Bay to shellfish harvesting in 1997-1998 due to high fecal coliform content. He attributed contamination partly to "subpar" septic systems in Chuckanut Village, including his own former property where "the septic tank went directly into Chuckanut Creek." Despite monitoring efforts, recreational shellfish harvest remains closed. City cross-examination established that the shellfish closure has persisted "for many decades" and confirmed fecal coliform as the primary contamination source. Applicant counsel's brief cross-examination confirmed Troutman no longer lives in Chuckanut Village and had limited knowledge of the specific project application materials. ### Paul Brock - Traffic and Recreation Safety Paul Brock, resident at 301 Crest Lane since 2009, provided detailed testimony about traffic patterns and pedestrian safety in the Viewcrest neighborhood. He described Viewcrest Road as the primary access route for the development, characterized by steep grades including the "Viewcrest Spike" — a particularly challenging section near a resident's pool that attracts road cyclists. Brock testified that Viewcrest lacks sidewalks and lighting, creating safety challenges when cars encounter pedestrians and cyclists. He described the road as a neighborhood gathering place where "neighbors chat on Viewcrest" and "dog walkers will stop and let the dogs meet each other." When vehicles approach, pedestrians must "jump off the side of the road, or in the ditch, or in somebody's driveway." Traffic routing emerged as a key issue. While the applicant's traffic study assumed residents would use Viewcrest to reach Chuckanut Drive, Brock testified most residents actually use 16th Street to head north toward Bellingham. He described 16th Street as "super narrow and super steep," noting sight line problems and a recent incident where a young driver "rolled their car" in snowy conditions. The testimony revealed safety documentation dating to 2017, when neighbors submitted detailed incident reports to the mayor documenting near-misses and requesting sidewalks. Brock testified the city's pedestrian master plan identified Viewcrest improvements as "low priority" and that the SEPA review found impacts "do not reach a level of impact to warrant mitigation." Recreational impacts focused on access to 100 Acre Wood park. Brock explained that the main trailhead access requires walking on Viewcrest Road since "there's no room on the sides to walk." Alternative access via 16th Street is impractical because the road is too dangerous for pedestrians. City cross-examination challenged Brock's credentials to opine on traffic impacts, limiting his testimony to factual observations rather than expert analysis. The examination also probed his involvement with Protect Mud Bay Cliffs, which he described as having "no real membership" but accepting donations. ### Robert Dillman - Recreational Use Robert Dillman, residing at 2070 Fairhaven Avenue since 2009, provided brief but impactful testimony about recreational use of Mud Bay. He described extensive recreational activities including "paddling and hiking" with his wife, crabbing from kayaks, and notably getting "married out on Dot Island" three years ago. Dillman's testimony focused on bioluminescence viewing, describing it as dominating "our life in the summertime" when they "drop everything and go if the tides are in." He provided specific crowd estimates, testifying that on the "busiest night, best night of bioluminescence in the summer" there could be "north of 50" people at the Fairhaven Avenue access point. He described organized tour groups and noted some neighbors' frustration with crowds, explaining "nobody likes when people steal your local spots." Neither the city nor applicant chose to cross-examine Dillman. ### Barry Wenger - Environmental Expert Environmental planner Barry Wenger, testifying remotely due to medical issues, brought extensive credentials including over 50 years as an environmental planner, 26 years at Washington State Department of Ecology, and shoreline/marine systems expertise. His background included work at San Juan County, UW Friday Harbor Labs, and managing an innovative shellfish farm. Wenger characterized Mud Bay as "an estuary system" rather than a saltwater body, explaining this distinction is crucial for stormwater regulations. He testified that discharging stormwater into the confined lagoon would be inappropriate because estuarine systems concentrate toxins, particularly in the "microlayer" where larvae float and where "toxins can be 400 times more toxic than just in the water column." His testimony was interrupted by density discussion. Wenger mentioned "up to 82 units" potentially being approved, leading to sustained objections. Hearing Examiner Rice clarified her earlier ruling excluding density arguments beyond the proposed 38 single-family lots, though noting legal arguments about full build-out potential could still be made in closing briefs. Wenger's ultimate recommendation was "absolutely no additional discharge, directly, stormwater discharge, into Mud Bay," describing additional discharge as analogous to adding "a great big surge of toxin" to "a system that's already basically trying to fight it." City cross-examination established Wenger's expertise in shorelines, SEPA, aquaculture, and public access, though his stormwater experience was described as embedded within broader environmental work rather than specialized engineering. The examination was cut short at the lunch break. ## Procedural Issues and Rulings Several procedural matters arose during the hearing. Appellants' Exhibit 147 (Google Maps showing property locations) was challenged as untimely, submitted January 5th for what should have been rebuttal documents. Hearing Examiner Rice overruled the objection, finding minimal prejudice from admitting basic mapping documents. The hearing revealed ongoing audio technical difficulties with remote witnesses, requiring frequent adjustments and clarifications. Multiple participants struggled with Zoom microphone positioning and screen sharing functions. Most significantly, density arguments continued to surface despite earlier summary judgment rulings. Hearing Examiner Rice clarified during the lunch break that Appeal Issue 12 (density arguments) was dismissed because density wasn't mentioned in the original appeal and represents a "primary, foundational land use topic" that should have been identified initially. However, she indicated appellants could still argue density considerations in their closing briefs as a "tangential issue." ## What's Ahead The hearing was scheduled to continue after lunch with cross-examination of Barry Wenger and potentially additional appellant witnesses. The city and applicant would then present their cases, likely focusing on technical compliance with regulations and the adequacy of the phased review approach that defers detailed engineering to final design stages. The substantive issues revealed fundamental disagreements about the appropriate level of analysis required at the preliminary plat stage, particularly regarding geological hazards and stormwater management. The appellants advocated for comprehensive upfront analysis, while the city and applicant defended the standard practice of preliminary approval with detailed conditions for final engineering. As the hearing progressed, the tension between neighborhood safety concerns and development accommodation became increasingly apparent, with detailed testimony about pedestrian conflicts on roads not designed for increased traffic volumes.