From his back deck he looks north into a wooded stream-bed that flows west past his house into Hoag’s Pond. His place and the surrounding forest from 30th Street west are wet and dark. It has the rich, mossy, organic aroma of a vibrant wetlands.
Sitting on his back deck looking out to the northwest, over soggy-ground, through thick underbrush and past large second-growth trees is Hoag’s Pond. It’s down the hill about 500 feet from his house. One can’t see the actual pond because of the dense woods but you can make out a clearing through the trees. Wilkin Street is nothing more than Quenneville’s driveway.
Lind Bros. Construction LLC hopes to build houses in between Hoag’s Pond and Quenneville’s house; on what is arguably pristine wetland.
Hoag’s Pond is a basin that collects ground water that flows into Chuckanut Creek. The pond and surrounding wetlands are owned and management by the City of Bellingham Parks and Recreation Department. The area is classified by the Department of Ecology as a “Category I Wetland Mosaic.”
Wetlands are important natural features. They help to control flooding, support wildlife diversity, and filter our water. In order to protect wetlands, the State of Washington Department of Ecology has determined that building and development cannot take place within a certain distance of a wetland; this distance is called a buffer-zone. This buffer-zone must be between 50 to 300 feet depending on an aggregate of the wetland’s features.
A Short Preview of Events:
In 2005, Lind Bros. Construction, LLC applied to the City of Bellingham for a building permit to develop the lots between Quenneville and the pond. Quenneville along with many concerned residents appealed the development on the grounds that the lots are on sensitive wetlands and shouldn’t be disturbed.
Nine years later, in June of 2014, the City of Bellingham issued Lind a building permit allowing for construction of homes and installation of septic systems. The properties have come to be known as the Lind-Wilkin Development.
Kim Weil works for the City of Bellingham’s Planning and Community Development Department. She has been with the department for twenty-two and one-half years. Weil has a degree in freshwater ecology from Western and was the lead city planner on the Lind-Wilkin Development since 2005 when Lind filed their original application.
“This project has been protracted and unique. It involved two factors, the Lind Bros. and the neighbor Mark Quenneville. It is a microcosm of what the South Neighborhood is all about,” Weil said.
Events leading to the Battle in Court:
On Dec. 5, 2005 Lind submitted an application for a building permit under the old Wetland/Stream ordinance. One day before the new “Critical Areas Ordinance” was to come into effect on Dec. 6, 2005.
Lind wasn’t the only one trying to apply under the old ordinance according to Weil the building department was overwhelmed with applications from people trying to get in under the old ordinance.
“There was nothing illegal done but there was some sloppiness,” Weil said.
Over the course of the next five-years Lind and the city would go back and forth trying to agree on the size of the buffer-zones and the specifics of a wetland mitigation plan.
In May of 2009 the permit application process became public. Local residents now aware of the project became concerned; so did Susan Meyer of the Department of Ecology.
Meyer weighed in and raised the issue that the Lind-Wilkin wetland was miss-categorized on the permit application that Lind had filed. She said it was not a Category II Wetland, as Lind was claiming it to be.
Meyer said the development site is in fact a Category I wetland; a “mature forested wetland.”
This distinction, whichever way it went, would change everything: the size of the buffer-zone, and the extent of the mitigation plan.
During the five-years that Lind and the city were going back and forth residents of the South Neighborhood organized and together successfully blocked a proposed development in a different part of the South Neighborhood called the “Chuckanut Wood Development.” This preserved acreage just off of Chuckanut Drive would come to be called the “100 Acre Wood.”
“The Crux of it was that the 100 Acre Wood educated the neighbors. They wanted to accomplish the same thing at Hoag’s Pond,” Weil said.
Eventually Lind and the city, and the man that lives next door to the Lind-Wilkin site, Mark Quenneville would go to court.
(For a timeline of specific events between December 2005 and June of 2014 click the following link) Lind-Wilkin Timeline JS:
The case goes to court:
With this successful battle for the “100 Acre Wood” behind them concerned residents of the South Neighborhood began to focus on the Lind-Wilkin Development with Quenneville leading the charge.
On Feb, 4 2010 Quenneville appeared in court to appeal the Lind-Wilkin permit. According to Quenneville the courtroom was packed with concerned residents as well as several experts including ecologist Nick Sky a graduate student at Western at that time. Dr. John McLaughlin associate professor at Western Washington University, and Sarah Cooke, one of several scientists involved with writing the wetlands mitigation requirements for the Department of Ecology.
Quenneville and Christopher Grannis, the South Neighborhood Association President at that time, say these experts provided overwhelming evidence that refuted the wetlands Category II classification. They all stated before the court that the buffer-zones and the mitigation requirements were inadequate.
Grannis accompanied Cooke on a Lind-Wilkin site visit before the hearing. She needed to see for herself the extent of the wetlands in order to categorize them. It was her expert opinion that the delineation of what comprised the overall wetlands, as illustrated on the site plan contained within the submitted permit documents, was inadequate. She contended that the wetlands area extended farther; she referred to large trees and the existence of skunk cabbage as evidence for her determination.
According to Cooke the septic systems and the house footprints under the original permit would be built on wetlands, a clear violation of the newer “Critical Areas Ordinance” Grannis said.
Weil asserts that although the footprint of one of the proposed building sites is in fact on top of the originally delineated wetland the city can only regulate wetlands that are of a certain size and that these smaller areas of wetland are outside of the regulatory jurisdiction of the city.
As a result of the expert testimony the hearing judge remanded the permit back to the planning department with the following stipulation: “Assess the proper wetlands category and make necessary conditions based on that category,” Quenneville said.
Lind appealed the Hearing Examiner’s decision under the Land Use Protection Act (LUPA) and the case was taken to Whatcom County Superior Court. The trial court reversed the Hearing Examiner’s decision and granted the following to Lind: The lot line adjustment, the older “Wetland/Stream” permit, not the newer more stringent “Critical Areas Ordinance” permit, the city shall comply with the 2008 mitigation plan from NWC and any variances are granted to Lind for the construction of three homes on the Lind-Wilken site.
Quenneville appealed the court ruling. Lind’s attorney filed a motioned of discovery that Quenneville failed to answer within the time limit. The appeal was thrown out.
What is next for the Lind-Wilkin development?
According to Quenneville and Grannis and the city records, Weil and the City of Bellingham re-issued the permit June of 2014 under the older “Wetland/Stream” ordinance. The testimony that had convinced the hearing examiner to remand the case back to the planning department did not change the planning department’s point of view. The new and final permit had only slight technical changes having to do with the width of the access roads. The 50-foot buffer zone requirement, the wetlands extent delineation and the Category II wetlands designation remained unchanged.
Quenneville says that this is not over and that he intends to continue to fight.
“This is about the principal of the city being so negligent in the management of its rare and valuable resources.” He said.
Weil says that all options for appeal have been exhausted and that Lind can sell the property as is or he can develop it, but “there are heavy requirements in order to proceed with development.”
Lind Bros. Construction LLC’s telephone appears to be disconnected. Attempts to contact Lind through their current representative Adam Morrow a Principal with Pacific Surveying & Engineering in Bellingham, Wash. were unsuccessful at the time of this publication.
Morrow agreed with Weil’s contention that Lind intends to move forward with the development of the Lind-Wilkin site. Weil had met with Lind and Morrow on Thursday, Oct. 30th, 2014 in her office to discuss what the city would require of Lind to move forward with development.
Weil says it won’t be easy “Lind still needs to get septic permits and they’ll need to fulfill a “Public Facilities Contract” regarding the specifications of the access road that has to be installed before anything can move forward. On top of that, site development will be monitored by the city and the Army Corps of Engineers the whole way.”