A "free and voluntary" taking of private property

 by Tim Ford, Attorney at Law

I received a call last month from Geri Madison, a property owner, who wants to build a house on her land in Bellingham to live in with her husband Paul.  The city allotted her 2160 square feet of impervious land coverage.  The Madison’s building design was reduced in size to meet this demand but after adjustments, it still exceeded the allotment by 97 square feet.  The city will still give the Madison’s a permit but only if certain conditions are met.  The Madison’s can earn a credit for 100 square feet of impervious surface if they provide the city with a “conservation easement” of 1000 square feet on their land.

            The conservation easement requires the Madisons to plant 20 conifer trees and 100 native shrubs, and to place a wood chip trail on the property.  All of this will cost thousands of dollars.  Not only will the trees look horrible on the property, but they will block the neighborhoods view when they grow to approximately 200 feet tall.  Additionally, the city requires the Madisons to get two bids for the purchase and planting of the trees.  The city will take the average of the two bids, and to ensure that the project will be completed the city requires the Madisons to either be bonded or to give the city 150% of the average cost.  The city will hold the money until the trees are planted and then the city can be trusted to return the money.

            According to the Bellingham municipal code requiring this easement, “the native vegetation retention area must be established, inspected and protected from the future placement of structure or alteration by a conservation easement.”  This allows the city to walk on the Madison’s premises at any time to conduct inspections, surveys, examinations or sampling without any prior notice.  If the native shrubs were to die because the house blocks the sunlight, the Madisons would be in violation of the easement.  This would raise a question of whether the City may legally require the Madisons to lower their roof for the benefit of the easement.  Any violations of this Bellingham code is a misdemeanor and may be fined $1500 for each offense.  Each day that the violation continues shall be deemed a separate and distinct offense allowing for cumulative fines and the Director of the Planning Department has the authority to issue a stop work order on the Madison’s home for any violation.

            The easement is granted forever, will be recorded on the title of their property, and will surely decrease the value of their land.  The replacement of the shrubs, trees, or the cost of any maintenance to preserve the city’s easement is to be paid for by the Madisons.  All of this is for the benefit of the protection of the Lake Whatcom Watershed from potential stormwater runoff that occurs due to impervious surfaces.  A far cheaper and less intrusive measure to protect against runoff is to build a bulkhead or a water retention basin.  However, reasonable arguments seem to fall on deaf ears at the city.  The Madisons have cut as much square footage as possible and have already delayed the building too long. 

            The city had them sign some forms giving away their land.  Ironically, the public notary had to certify that the Madisons gave away their land as a “free and voluntary” act.  Just wait until the Madisons try to get a permit to build a concrete driveway for a two-car garage.  The city may end up taking the rest of the land and require the Madisons to evict themselves as a “free and voluntary” act.

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