Whatcom County and Lake Whatcom Store Embroiled in Zoning Controversy

Pete Nelson is a teacher at Whatcom Middle School and a freelance writer. His email address: pjnelson1965@yahoo.com.

A disagreement about zoning determinations that began in June 2000 between Whatcom County and a store at the south end of Lake Whatcom continues nearly two years and several appeals later. Neighbors and patrons of the Park Store (also called Scooter Stuff) have written more than 20 letters to Whatcom County and over 900 people have signed a petition in support of the store.

Bellingham Herald reporters have written three articles about the conflict. Whatcom Watch included a question about the store to County Council candidates last October. The Whatcom County Council voted on the issue in February 2001 and it’s now before the Whatcom County Superior Court.

No longer a simple dispute between two parties, it’s become a story about historic preservation, the watershed, the power of perception, and distrust.

Whatcom County Councilmember Barbara Brenner, a vocal advocate for the store, questions the county’s priorities. At a time when county revenues are declining, the administration prepares to defend the case in court.

“The bureaucrats don’t pay for it. The public pays for it,” Brenner said.1

The Park Store has stood at the intersection of Park Road, Blue Canyon Road and South Bay Drive since 1929. For fifty years the building, on the Whatcom County Historical Society register since 1979, was the general store and meeting place for the residents of Park, a mining and logging community at the south end of Lake Whatcom.

By 1990, however, the population of Park, once 2,500 strong, contained 20 households within one square mile of the store. The historic building no longer housed a store or residence; it had become an abandoned hull in which young people partied and hung out.

While visiting family in 1990, Bob Van Houten and Shelly Harper fell in love with the south end of Lake Whatcom and saw the potential for a business and residence at the for-sale Park Store building.

“Something grabbed me when I drove by [the Park Store],” Van Houten said.

“My mother thought I was absolutely crazy to even think about it.” 2

Van Houten and Harper, computer and electrical engineers working for the defense industry near the nation’s capital, had tired of the travel and long hours their jobs demanded. Van Houten, born and raised in Washington State, wanted to move closer to his parents and siblings.

“The whole family —two brothers, a sister and their families— all live within 50 miles of us,” Van Houten said.3

The couple realized that restoring the dilapidated building and opening a business there would require a rezone from rural to commercial. They met with Dan Taylor, then Whatcom County Land Use Division Manager, to discuss the possibility of rezoning the property on which the Park Store stood. The county, at first reluctant, was concerned that the couple would level the historic building and build a 7-11.

The two parties signed an agreement, which specified that the new owners would renovate the building according to federal restoration guidelines and operate a business out of the existing structure. With this agreement signed and environmental studies completed by the applicants, the Planning and Development Services staff recommended the Whatcom County Council approve the rezone from rural two-acres to neighborhood commercial.

Once the council approved the rezone, Van Houten and Harper purchased the property and went to work. They first secured the building by lifting it two and three feet up on jacks. They stabilized the foundation and then brought the building back down.

“That wasn’t done by Joe Schmo moving company,” Van Houten explained. “That was done by us, my dad; it was a family project.” 4

At the time of the purchase and during the first years of renovation, Van Houten and Harper planned to open a restaurant that would cater to the neighborhood, to road travelers, and to visitors to the adjacent 98-acre park that the county planned to establish. While waiting for the creation of the park, the couple, working various engineering, general contracting and retail jobs, invested their savings—nearly $ 200,000—into the renovation.

The proposed 98-acre park was never created. Without the park as a draw and the neighborhood population at less than 100 people, Van Houten and Harper calculated that the chances of making a restaurant profitable were highly unlikely.

They searched for a new business idea. Turned on to motorcycling by Van Houten, Harper had quit engineering and worked for four years at a local Harley Davidson store. Her experience at the motorcycle store and the traffic passing by their home ignited an idea. The couple decided to create two businesses within the Park Store. They would sell groceries and motorcycle parts and accessories.

“We were sitting out in the front stoop drinking coffee right next to the road one evening talking about we have to do,” Van Houten explained, “As we sat out here in this beautiful area, it became clear to us all the people driving by. We thought, ‘Let’s try to set up a business selling motorcycle parts and accessories.’” 5

The Park Store added a new name: Scooter Stuff. Along with milk, eggs, and bread, the owners began selling T-shirts, jackets and later added other clothes and parts. They offered free coffee and a table for conversation. Upon request, Van Houten and Harper bolted chrome onto motorcycles and changed tires for their customers.

Motorcycle repairs that involved the release of fluids were available to customers but, due to watershed concerns, were not done at the Park Store site.6

A year and a half after Scooter Stuff opened, Steve Mann, a county zoning compliance officer, responding to a citizen complaint, visited the store unannounced. In the complaint, a county resident expressed concern that the originally planned restaurant had never opened and that, instead, the owners were selling motorcycle parts. It was noted that a creek runs under the building into Lake Whatcom and alleged that motorcycles were being repaired.7

“A man walks in one day and introduces himself as a compliance officer and says he’s here to check out our business,” Van Houten said. “Basically he left saying, ‘I don’t see any problem. This is great.’” 8

Three weeks later on May 22, 2000, Van Houten and Harper received a letter from Mann. He wrote that, although at the time of his visit he did not feel that the store’s business was in conflict with the zoning, after further research and consultation with administrators, it had been determined that the store was in violation of the zoning.

The intent of the neighborhood commercial zone was to provide convenience goods and services to the neighborhood. A motorcycle parts and accessories store would attract people outside the neighborhood and “would most likely cause an increase in out-of-area traffic,” he concluded.9

He informed the owners that they must stop selling motorcycle parts and accessories within 30 days.

“If you fail to meet this deadline, a $250.00 Notice of Infraction will be issued. A Notice of Infraction may be issued for each day of noncompliance,” Mann wrote.10

Shortly after receiving the letter, Van Houten and Harper met with county officials; the two parties were unable to resolve the issue. The owners then hired lawyer Philip Buri and appealed the determination to Whatcom County Hearing Examiner Michael Bobbink. In December of 2000, Bobbink heard arguments and testimony from both sides and overturned the county’s determination.

Bobbink ruled that the county’s interpretation of the zoning was overly strict. He emphasized that the impact of the Park Store on the neighborhood is consistent with permitted uses of the neighborhood commercial elsewhere.

“The motorcycle accessories portion of the business was designed to serve travelers who already use the road,” Bobbink wrote.11

After Bobbink refused to reconsider the decision, the county appealed the case to the Whatcom County Council. The county’s prosecuting attorney Karen Frakes and the Park Store attorney Buri submitted legal briefs to the council.

The two parties disagree over what criteria to use when determining which specific business activities are allowed under the neighborhood commercial zone.

The central issue, according to the county, was whether the sale of motorcycle parts and accessories is a permitted use in a neighborhood commercial zone. The county argued that businesses in the zone should provide neighborhoods with convenience goods, like food, drugs, hardware, and stationery.

“A motorcycle parts and accessories shop is a specialty retail store that would appeal to a very select segment of population and would attract customers from outside of neighborhood for its survival,” Frakes wrote.12

The Park Store attorney argued that impacts of the store on the neighborhood, not the goods and services sold at a store, should be the focus of the county’s determination

“The key to assessing the use of a neighborhood store is whether the store creates negative impacts on the surrounding community. Here the Park Store has created none,” Buri wrote.13

Buri also argued that more objective criteria — minimum lot size, maximum building size, building set backs, height limitations, lot coverage, open space buffer areas, sign regulations — should be used to determine neighborhood commercial zoning compliance.

“Planning and Development Services does not contend that the Park Store has violated any of these specific requirements on building size and lot configuration,” the attorney wrote.14

Hardware store is one permitted use under the neighborhood commercial zoning code.

“How could mechanical parts for motorcycles not fall within the broader definition of hardware?” Buri asked the council.15

In February of last year, the council overturned the hearing examiner’s decision with a four to one vote. Voting to overturn the decision were councilmembers Connie Hoag, Robert Imhof, Ward Nelson, and Dan McShane. Sam Crawford voted in favor of the hearing examiner’s decision. Barbara Brenner recused herself and Marlene Dawson was not present. The result of the decision: the Park Store must stop selling motorcycle parts and accessories or face a $250.00 fine for each day of noncompliance.

Van Houten and Harper filed an appeal at the Whatcom County Superior Court. During this appeal — which has not yet been heard — the county agreed not to enforce the $250.00 per day fine until after the court ruling. In return, the store owners agreed any work on motorcycles at the store would not involve the release or storage of fluids in a manner that could harm the Lake Whatcom watershed.16

At the heart of this case beats one question: What does the county want?

Roland Middleton, Land Use Division Manager, explained that, when reading the hearing examiner’s decision, he became concerned the decision would create future problems.

“When I care is when someone’s land-use attorney uses this as a precedent. If the hearing examiner had made this case-specific, then fine. But he didn’t. He opened a huge can of worms,” Middleton said.17

County prosecuting attorney Frakes differed in her view of the hearing examiner’s decision. The hearing examiner tried to make the decision case-specific to the Park Store, she said, but his attempt to restrict the case would not prevent other land-use lawyers to argue that their case was also unique.18

“The hearing examiner’s decision leaves the administration in the position of having to allow any and all retail uses in a Neighborhood Commercial District as it would be impossible for staff to legitimately distinguish one such use from another,” Frakes argued.19

Zoning isn’t the county’s only concern. The Park Store is a couple hundred yards from Lake Whatcom, the drinking water source for 85,000 residents. The health of the lake and the effect of development around the lake have become critical topics of debate in the region.

The county is aware of the growing public concern for the lake’s health and is undoubtedly sensitive to any activity, or the public’s perception of any activity, that is potentially harmful to the Lake Whatcom watershed.

“Our major concern is harm to the water quality in Lake Whatcom,” Sylvia Goodwin, County Planning Manager, said.20

Van Houten and Harper have been frustrated in their efforts to address the county’s watershed concerns. They want to do what is necessary to protect the watershed, they said, but the county hasn’t been clear as to what they can and cannot sell or service.

“Their concerns change. First it was fluids. Then tires. Then it’s things that are considered repairs. The list kept expanding,” Van Houten said.21

Under the stay agreement with the county, Van Houten and Harper have agreed any work on motorcycles at the store would not involve the release or storage of fluids in a manner that could harm the Whatcom watershed.

“It’s not a question of environmentalists against evil polluters,” Brenner said. “That’s what bothers me the most. I get the sense that they care about the environment. I don’t think they are polluters in any way.” 22

The Bellingham Herald reported in June 2001 that a land rezone could resolve the Park Store suit. County Council members plan to seek a rezone to allow the store to continue selling motorcycle parts.

“[Brenner] and councilmember Sam Crawford said they would ask the council to start the process to rezone the store to a designation, possibly tourist commercial, that would satisfy other council members and planning administrators,” The Bellingham Herald reported.23

At the time this issue went to press, however, neither Brenner nor Crawford had asked the council to start a rezone process.

Brenner is uncertain whether there are enough council members who would vote for a rezone resolution, which would direct the county staff to prepare a report and make a recommendation on the rezone issue. For the rezone process to be initiated, four of the seven council members would need to vote for it.

“I would (initiate the rezone process), if I thought I could,” Brenner said. “I saw which way they (the councilmembers) voted. They were listening to their attorney. I thought one council member was completely supportive of [the Park Store], and he turned around and voted against it.” 24

Brenner views the efforts by the county as politically motivated rather than rooted in a concern for health or the environment. She distrusts the county administration, fearing that the county would use a rezone request against the Park Store during a trial. For a rezone to be approved by the council, it would need to have support from the Planning and Development Services office.

Political Motivations of County Questioned

“The council and the administration should be working in unison. Otherwise we would be setting these people up,” Brenner said.25

According to Planning Manager Goodwin, the county has no plans to bring forward an application for a rezone. Planning and Development doesn’t bring forward an application process for private applicants.

“The only reason Planning and Development would bring forward an application would be for an issue that has some countywide benefit,” Goodwin said.26

Van Houten and Harper could apply for a rezone. The county would look at whether or not the rezone request would be consistent with the comprehensive plan, Goodwin explained.

“Tourist commercial is appropriate zoning for a comprehensive plan of crossroads commercial. We would probably recommend approval if it were tourist commercial,” Goodwin said.27

Goodwin said that if the owners applied for a rezone, they would have to pay $2,435 in fees. If the county initiates the rezone, the owners would have no fees.

Van Houten and Harper are open to applying for a rezone, but believe that the county should pay for the rezone, their attorney said. They argue that they had always planned to open a business—first a restaurant and now a motorcycle parts store—which attracts customers from outside the neighborhood. They were told that neighborhood commercial allows that.

“I don’t think that the Park Store should have to pay for a rezone when it is Planning and Development Services that has changed its definition of neighborhood commercial,” their attorney said.28

Is the continued restoration and maintenance of the Park Store, financed by Scooter Stuff revenue, of countywide benefit? Would it justify the county bringing forward a rezone application?

In the 1990 report that recommended a rezone for the Park Store, county staff wrote that providing an economic incentive for restoration of the historical Park Store was “in keeping with the County wide goal to preserve cultural resources.”29

“A contract rezone tying the right to rezone to the preservation of the building could protect the interests of the County (italics added),” the staff reported.30

The staff report suggests that continued restoration and maintenance of the Park Store is in the county’s interest.

At the taxpayers’ expense, the county has directed staff to investigate the Park Store, to argue before Hearing Examiner Michael Bobbink and the County Council, and to prepare for a civil suit. Yet the county has not directed nor, according to Goodwin, has any plans to direct any staff to bring forward a rezone application.

There may be an additional concern that has influenced the county’s actions. Rita Foley, a Blue Canyon resident for 32 years and one of two residents who testified before the hearing examiner, complained about increased motorcycle traffic.

“You can hear their motorcycles roaring down South Bay Drive from anywhere from seven in the morning until sometimes 12 at night,” she said.31

County staff members deny that the Park Store’s motorcycle-riding clientele has influenced their actions.

“We do not look at the prejudicial nature of the clients involved,” Middleton said.32

The political climate surrounding development in the Lake Whatcom watershed has dramatically changed since 1990, the year Van Houten and Harper purchased the historic Park Store building. Concern over toxins in the lake has affected government policy decisions. The Whatcom County Council recently enacted a subdivision moratorium in the watershed.

In light of heightened public concern for the lake’s health, it isn’t surprising that Whatcom County officials would investigate a motorcycle parts and accessories store operating in the watershed.

The Park Store owner’s willingness to take the necessary steps to prevent the release of toxic fluids into the lake raises a concern: Is the perception of a threat rather than a real threat to the Lake Whatcom watershed driving County Planning and County Council action?

The Park Store turns 73 this year. The original wooden walls, once covered by layers of wall paper and cardboard, have been exposed, sanded, and repainted. The wood foundation beams and the siding have been replaced. Native trees and ferns have been planted on the property. The renovated two-story rectangle building with the boomtown front facade and flat roof is the only building that remains from the early mining and lumber days in Park and neighboring Blue Canyon.

“What has made this business is the building, its history, its feeling,” Van Houten said. “To pick this business up and move it some place else would be just like anybody else’s some place else. This place is very special to us. Very special to our customers, extremely comfortable, and it should be special to the county because it’s their history.”

1 Barbara Brenner, personal interview, 21 Jan. 2002.

2 Bob Van Houten, personal interview, 7 Feb. 2002.

3 Ibid.

4 Ibid.

5 Van Houten, personal interview, 18 Feb. 2002.

6 Van Houten, 7 Feb. 2002.

7 Citizen Inquiry Report case # EMF2000-00299, 10 May 2000.

8 Van Houten, 7 Feb. 2002.

9 Steve Mann, Land Use Specialist, Whatcom County Planning and Development Services, 22 May 2000.

10 Ibid.

11 Michael Bobbink, Whatcom County Hearing Examiner, Summary of Appeal and Decision APL2000-0012, 29 Nov. 2000.

12 Karen Frakes, Brief of Appellant, APL2000-0012, 29 Jan. 2001.

13 Philip Buri, Memorandum of Law in Support of the Park Store, APL2000-0012, 14 Feb. 2001.

14 Ibid.

15 Ibid.

16 Stipulation Regarding Stay Pending Appeal, Whatcom County Superior Court, No. 01 2 00666 1, 18 April 2001.

17 Rolland Middleton, personal interview, 25 Jan. 2002.

18 Karen Frakes, personal interview, 25 Jan. 2002.

19 Karen Frakes, Brief of Appellant, APL2000-0012, 29 Jan. 2001.

20 Sylvia Goodwin, personal interview, 28 Jan. 2002.

21 Bob Van Houten, personal interview, 24 Jan. 2002.

22 Barbara Brenner, personal interview, 21 Jan. 2002.

23 Aubrey Cohen, “Land rezone could resolve Park Store suit.” Bellingham Herald, 9 June 2001 page A3.

24 Brenner, 21 Jan. 2002.

25 Ibid.

26 Goodwin, 28 Jan. 2002.

27 Ibid.

28 Philip Buri, personal interview, Feb. 18, 2002.

29 Whatcom County Planning Department Staff Report, 14 Mar. 1990 File 06:90:CM.

30 Ibid.

31 Public Hearing, November 22, 2000.

32 Middleton, 25 Jan. 2002.

33 Van Houten, 7 Feb. 2002.