Trillium Corporation should be able to complete a 624-acre development slated for west Blaine even though the zoning has changed since the company filed their planned unit development (PUD) application in October, 2009, the company’s attorneys said in a statement last week.
The memorandum, dated February 11, was filed in response to growth activist Wendy Harris’ claims that Trillium’s plans for Semiahmoo West are invalid under state law.
Harris told Whatcom County Planning Services that under Washington state law’s “vesting rights doctrine,” landowners have a right to develop lots indicated in the PUD application at the zoning density at the time in which the application was approved, regardless of whether there are subsequent changes in land use law or density. But because Trillium only specified 28 lots in their first phase application, Harris argued they shouldn’t be granted the right to develop the project in full.
Trillium’s attorneys, however, argued that, according to Whtacom County code as well as state vesting statutes and case law, the corporation is legally able to fully develop the Semiahmoo West development in west Blaine even if it didn’t submit a subdivision application for the entire project.
The entire project would add 1,246 homes and 60,000 square feet of commercial space on 624 acres west of Semiahmoo Parkway. It would take about 20 years to complete and more than double the amount of homes in the area.
Chris Benner, Trillium’s vice president of real estate development, said the land use permit application that Trillium submitted in October was determined to be complete by the county.
As a result the project was vested to the zoning and land use regulations in effect at the time of our application. “It wasn’t hastily done and it wasn’t sloppily done,” Benner said. “It takes time to put these projects together. Further, we’ve owned a lot of west Blaine for 30 years with prospects for development.”
Amy Kosterlitz, an attorney for Trillium, said the corporation should be able to develop all 1,246 lots based on prior court decisions in the state of Washington that demonstrated that counties are allowed to set their own vesting rules.
Kosterlitz added that Whatcom County code allows vesting rights for PUD applications even when they are not coupled with a plat application.
WCC 20.04.031(3)(a) defines project permit applications to include applications for subdivisions as well as PUDs and states that “project permit applications submitted after the effective date of the ordinance codified in this section shall be vested under the zoning and land use regulations in effect at the time of application; provided, that the county has not subsequently notified the applicant that the application is incomplete.”
The county planning and development department approved Trillium’s PUD application on October 30, 2009, only a few weeks before Whatcom County Council eliminated west Blaine from the city’s urban growth area (UGA). The council approved the cuts in December following executive Pete Kremen’s proposal, which reduced Birch Bay’s UGA from 4,300 to 3,300 acres and reduced Blaine’s UGA from about 6,900 to 4,050 acres.
For Blaine, that included the entire west portion of Blaine’s UGA, the planned site for the Semiahmoo West development.
In an earlier email to Harris, Whatcom County planning director David Stalheim said that Trillium had submitted a subdivision application for 28 lots but the county has not made a determination as to whether those vested rights would apply to the entire project.