East Blaine utility access remains up in the air

Published on Thu, Sep 27, 2012 by Carissa Wright

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It’s been nearly one year since the Blaine City Council voted to acquire a right-of-way on an east Blaine property, but the issue must wait until late October before it is put to rest.

Council members will wrestle with a difficult decision for one more month after a vote at Monday night’s city council meeting authorized further negotiation with the Robert D. Martin Family, LLC, which owns the two parcels of land. On October 22, council will vote on whether to acquire an 80-foot right-of-way through the property by exercising eminent domain.

Mayor Harry Robinson and several council members stated that this is the last time this particular can could be kicked down the road.

“We have to come to a conclusion,” Robinson said, “otherwise this will drag on forever.”

A lengthy delay

At the crux of the issue is the route by which utilities are to be provided to east Blaine, an area the city annexed in 1996.

The East Blaine Infrastructure Plan (EBIP, view it here) was adopted in 2009 as a plan for providing utility services to the area. That plan calls for an arterial road and utility services to be built along what’s been referred to as Motts Hill Parkway – which runs through the middle of the land in question, and has been in the Martin family for a hundred-plus years. The Martin family's land is outlined in yellow in the map at right, with the proposed Motts Hill Parkway shown in purple. Privately owned parcels along H Street are also outlined.

The EBIP was developed through a series of public meetings and hearings; however, the Martin family and its lawyer contend that the first the family heard of the proposed arterial was in September 2011, when council first set about condemning the land. Condemnation, or eminent domain, is an action by which a government entity can seize private property for public use, compensating the property’s owner monetarily but without obtaining the owner’s consent.

The Martin family didn’t seek legal advice until Robert Martin Sr. received that notice in September, said Bob Carmichael, the attorney representing Robert D. Martin Family, LLC.  Carmichael said the family feels that the city has not explored any true alternatives to the Motts Hill route bisecting the property.

Though the council voted 6-1 in October 2011 to pursue condemnation, the notification of the vote’s outcome was sent to the wrong address, and the vote had to be retaken. But during the December 2011 meeting at which the council was to vote again, council members decided to table a decision until a thorough evaluation of the proposed routes and alternatives could be done. After negotiating an access agreement with the Martin family, the city hired Bellingham-based Wilson Engineering to thoroughly explore the Motts Hill route as a utility corridor.

According to Bill Bullock, Blaine’s assistant public works director who was acting public works director at the time the firm was hired, Wilson Engineering was directed to define a right-of-way along an alignment that would allow for gravity sewer lines, eventual construction of a road and minimal impacts to critical areas such as wetlands. The Motts Hill route had already been selected as the city’s best choice, but an on-the-ground survey was necessary to verify that decision.

The results of that evaluation were presented at the council’s August 27, 2012 meeting (view that presentation here), and a vote was again rescheduled, this time for the September 24 meeting. However, council voted 6-1, with council member Ken Oplinger opposed, to once again table the vote until the October 22 meeting.

Alternative routes

Robert Martin Jr. told council members Monday that the last time he was in front of them he stated that access to the property was conditional on the city assessing all options. The city hasn’t done so, Martin asserts, instead focusing only on the Motts Hill route.

“I was disappointed that I didn’t see any documentation that the engineering firm had done any study of the northern perimeter of the property, which would have been less of an injury to us,” Martin said.

Carmichael told council that the access agreement with the Martin family stipulated that the city was to investigate alternative routes – plural – rather than simply the Motts Hill route. The northern route through the property, Carmichael said, would be a far preferable option for the family.

City attorney Jon Sitkin and city manager Gary Tomsic disagreed, saying that the H Street route and the Motts Hill route were the two “routes” described in the agreement. The route through the Martin property identified by the city and Wilson Engineering as the ideal route is shown at right.

In developing the EBIP, Bullock said, city staff had to make an “educated guess” as to the best route through the Martin family’s property and, based on available topographic data, settled on the Motts Hill alignment. When the staff approached the Martins, they had “gotten the answer that they weren’t interested in participating,” Bullock said. Until the condemnation proceedings began, the city was unaware that the northern route would be the best option for the Martin family.

“It’s not an apples to apples comparison,” Bullock said, referring to alternative utiility routes through the Martin property, especially when it comes to the sewer line. “The northern route can’t support a 12-inch sewer line.”

Neither can the alternative H Street route, Bullock said. Both routes would empty into an 8-inch line, and would require significant reconstruction of existing facilities.

Fairness for all

Steve Price, project manager for the Grandis Pond development slated for the adjacent property, told council members that the city must be fair to all parties.

“We’re proposing a project within city limits that meets all the land use and zoning requirements already in use by the city,” Price said. He pointed out that those requirements are “the result of a lengthy, community-based process,” involving public input at several steps along the way. Price expressed frustration that the city may change its mind after following its own rules to decide on the Motts Hill route in the 2009 plan.

“I have a real problem if (reversing that decision) is based on the criteria that he didn’t know,” Price said. If the city changes the Motts Hill route now, Price said his project would have to be completely redesigned – a further expenditure of time and money Price couldn’t guarantee the property owners would be interested in undertaking.

“The message it sends is, don’t participate in the process,” Price said later. “Wait until the end and then complain.”

The foundation for development in east Blaine, the EBIP plan has been in active use for several years now, Bullock said, adding that a number of developments have already been constructed in accordance with that plan. The recent H Street reconstruction project was also completed according to its rules.

“It’s really tough to go back and do something contrary to that now,” Bullock said in a later interview.

“The matter we’re considering this evening is not something that’s just been brought to us tonight,” Oplinger said during the council’s discussion. It goes back to 2009’s infrastructure plan, or even back to the 1996 incorporation. Oplinger said the city has a mandate from the state to drive density to incorporated areas – the city is “obligated” to provide utility services to all areas of the city.

“This is frankly the worst thing an elected official has to deal with,” Oplinger said, but “we have to solve a problem this community has had for a long time.”

A new voice­­

Blaine Public Works director Ravyn Whitewolf began the public meeting with a presentation of the assessment of both the Motts Hill route and the H Street route.

Whitewolf was hired by the city in February 2012. Her predecessor, Steve Banham, had proven unsuccessful in negotiating with the family. At the time, staff had been told to work only with Martin Sr., whose hearing loss and speech impediment make verbal communication difficult.

However, Martin Jr. and Carmichael said the city’s contact should now be Martin Jr., though Martin Sr. was still very much the decision-maker.

Seeking resolution, Whitewolf asked the council to give city staff the authority to move forward. “I would just like to offer that yes, the word condemnation is there, but the word negotiation is first,” she said.

While he appreciated the sentiment, Carmichael said he was wary of the council letting the decision pass out of its hands.
Clark Cotner proposed tabling a vote to allow for more negotiation with the Martins, seconded by Bonnie Onyon.

“I don’t feel right about doing this,” Onyon said, adding that while she understands that Blaine needs to grow and must grow to the east, she would like to give more consideration to the Martins.

“We need to have some better good-faith discussions,” Onyon said, “and I think Ravyn is an excellent conduit for that.”

Price and Carmichael are both hopeful that further negotiation will end successfully, but both remain wary. For Price, the issue is one of clarity.

“The council didn’t give (Whitewolf) a lot of clear direction as to what it is they want her to do,” he said.

Carmichael did not speculate on the success of negotiation, and said once again that the Martin family felt left out of the process.

“I don’t think there was a real effort to engage the Martins on the routing question through their property,” Carmichael said.

“They’re obviously feeling like they didn’t really get heard.”

Marilyn Martin, the wife of Martin Jr., agrees.

“At this point I have to say that I’m extremely disappointed in the city of Blaine,” she said, adding that it was clear to her at the end of the meeting that “this is about the developers.”  

The council referred to its vote to delay the final decision as a Hail Mary pass – one that Whitewolf is hopeful she’ll be able to catch.  

“It is definitely my intention to meet with (the Martins) to explore what options are available,” Whitewolf said later, though she added that the council didn’t specifically direct one alternative or provide any financial resources for new research on the property.

Setting a precedent

Eminent domain is not a popular action for any government entity to take, and several area residents spoke out against the action during the public hearing.

Whatcom County Council member Barbara Brenner spoke passionately against the use of eminent domain.

“When we start saying it’s OK to do it to this person, what are you going to do when someone says it’s OK to do it to you?”

East Blaine resident Jessica Mosely echoed her statements, saying that “condemning the property would set a precedent.”

And Blaine resident Don Kruse, an adjacent property owner, asked, “Who does this really benefit?” He pointed out that there are no residents in the area now who would benefit, and asked whether this is the best use of the city’s time and money.

“I just don’t think it’s right,” Kruse said.

Though Whitewolf encouraged the council to give city staff the authority to proceed, she said in a later interview that condemnation is a last resort for her.

“We never want to necessarily pursue condemnation – nobody ever wants to do that,” Whitewolf said. “We don’t take that kind of thing lightly at all.”

Martin Jr. spoke of his own personal experiences with condemnation, saying that this is the third condemnation proceeding he has faced.

“So if I’ve got an attitude about it,” he told council members, “I’m tired of being a lightning rod for condemnation.”