The Gristle

The Permanence of Variance
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THE PERMANENCE OF VARIANCE: A remarkable schism opened between the afternoon and evening sessions of Bellingham City Council this week, although perhaps too few noticed.

The central puzzle facing the city—and indeed communities throughout the West and across the country—is the affordability of housing and its attendant concerns, as middle incomes have remained relatively flat while home prices continue to rise precipitously. The balance between what one earns and what one pays for a roof over one’s head is the underlying metric of the Housing Affordability Index (HAI), a measure of median household income relative to the income needed to purchase a median-priced home. HAI has a value of 100 when the median-income family has sufficient income to purchase a median-priced existing home.

Whatcom County’s affordability scoring is discouraging, averaging 135.9 throughout 2014, according to data from the Runstad Center for Real Estate Studies at the University of Washington, down slightly from a peak of 159.5 in the first quarter of 2013.

County homes are expensive in relation to county incomes.

The drag on the local economy is ferocious, as family incomes are consumed by mortgages; but there is also high social and cultural, even political cost to the barriers that prevent residents from becoming rooted in their community.

Incomprehensibly, only one builder in town seems even remotely invested in finding solutions to this—Kulshan Community Land Trust and their commitment to acquire a portfolio of quality homes for middle incomes.

A demonstration ordinance was approved by City Council in 2004, creating an incentive program for innovative affordable homeownership projects in single-family and multi-family residential zones was passed by Council in 2004. The demonstration yielded just two projects, both from Kulsan CLT, each notable for their ingenuity and design standards. Both were praised by neighbors. That pilot program expired at the end of last year, prompting Council to consider renewing and updating the program goals.

Bellingham City Council considers other builders might be lured into joining Kulshan CLT with sufficient incentives and a softening of zoning and building codes that might spur the construction of affordable homes in existing neighborhoods. They took up the issue in a public meeting this week. For existing neighborhoods, creation of incentives and the softening of codes can mean the destruction of neighborhood character and the transfer of development costs on to neighborhoods in the form of public subsidy.

“This city has made a commitment to provide housing for people,” Steve James, a resident of Puget neighborhood, noted in comments to council. “And that’s a noble goal. But this city and the neighborhoods in it have made a commitment to protect and preserve the neighborhoods, because that’s what makes Bellingham so unique. And I am hearing a conflict between those particular things with this ordinance.

“I would like to see the council approach affordable housing in a broader scope, rather than just piecemealing it through a little ordinance here, a little ordinance there,” he said. “Let’s talk about a real task force or plan to provide affordable housing within the inner city.”

Other speakers similarly urged the Council to proceed with care and a robust public process. Council agreed.

In perhaps the most troubling departure from the 2004 demonstration ordinance, project proposals would be considered in quasi-judicial proceedings in front of the Bellingham Hearing Examiner, and could move on appeal from there directly to Superior Court. In the prior version, City Council remained involved in the review and approval of each project that came forward. The change is particularly troubling given the program seeks to attract a broader set of general contractors than just Kulshan CLT, with the trust’s lofty goals, high design standards and civically engaged board of directors.

Planning staff explained that the change is more consistent with the goals and procedures of quasi-judicial review, in which a body of evidence is assembled and considered on its merits and the applicability of state law and city codes. Running projects back to City Council introduces a political element and creates a moving target, where new evidence may be introduced that was not included in the original judicial review, staff noted.

“I can tell you as a long time veteran, creating the hearing examiner was one of the best things we ever did,” Council member Gene Knutson remarked. “They have the legal minds to take a look at a project, not from a political point of view, but from a legal point of view. We went through a period of hearings that weren’t scientific. They were nothing but political battles, and I wouldn’t want to go through that again.”

Bellingham city government shifted from the councilmanic consideration of land-use applications to the hearing examiner model 15 years ago without a heck of a lot of public notice or public involvement; but, yes, the shift brought new levels of professional review and certainty in fact and in law previously missing as a panel of well-intentioned amateurs bumbled and fumbled with incomplete information, sweating details they little understood in a public forum. Still, we elect those amateurs to represent us; and the slow removal of those we can hold accountable for the protection of our neighborhoods from meaningful decision is a palpable erosion.

In her first semi-annual report to City Council earlier in the day, the city’s new Hearing Examiner Sharon Rice scoped why the continued involvement of policymakers may be required.

“From the first hearing, it became clear that Bellingham had a different idea about variances than I had,” Rice reported. “I come from this very rigid place, where the zoning code is in place to protect the public good and requires a very high standard to obtain a variance from the adopted code.

“The culture or practice historically of considering whether or not neighbors are opposed to variances… this approach was new to me,” she said, noting other communities she’s served are not so mercurial in their standards.

Her observations were consistent with the former Hearing Examiner Dawn Sturwold’s reports to Council, where she described requests for variances were more common in Bellingham than the code standard from which they varied. She also recommended policy review.

“It has been contended by staff in all zoning variances to date that there is a history of lenience in granting variances if no neighbors object; an unofficial ‘no harm, no foul’ policy has been asserted as historically in effect,” Rice noted in written remarks. “Respectfully, that is not how this Examiner interprets the BMC variance criteria, nor the above-cited case law addressing variances. If Planning staff’s position—briefly, that the code and Comprehensive Plan promote more flexibility in variances— accurately reflects the intention of the legislative body, the Examiner suggests that the code be modified to establish circumstances in which flexibility is warranted or to establish an express list of exceptions to variance requirements.”

It’s a wise comment that should guide Council as they consider additional departures from city code, additional distance between electeds and the public they represent.


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