HomeMy WebLinkAboutord2011-006 WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2011 - 088
CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to:
Originator: f +Ft— i (2� ke t p N 2 / 8 / 2011 Introduction
ECEIED
Division Head: ¶ (13 ` '7,1 WI FEB 1 2 / 22 / 2011 P &D / Council
Dept. Head. /( �1� _ I Ae D t 20��
Prosecutor: 112-7 II WHATCOM
NCIL OUNTY
COU
Purchasing/Budget: /X , ( #,
Executive: f /P43/- 1/
TITLE OF DOCUMENT: Barlean 's Site Specific Rezone and Development Agreement
ATTACHMENTS:
(1) Ordinance
(2) Hearing Examiners Recommendation and Conditions
(3 ) Development Agreement
SEPA review required? ( x ) Yes ( ) NO Should Clerk schedule a hearing? ( ) Yes ( x ) NO
SEPA review completed? ( x ) Yes ( ) NO Requested Date:
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public
hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be
clear in explaining the intent of the action.)
The applicant, Barlean' s Land Company, LLC, are proposing a site specific rezone and development agreement
to change the zoning from Rural 5 (R5A) to Light Impact Industrial (LII) on 35 acres consistent with the Rural
Comprehensive Plan designation.
COMMITTEE ACTION: COUNCIL ACTION:
2 / 22 / 2011 : Forwarded to Council for approval 2 / 08 / 2011 : Introduced
2 / 22 / 2011 : Council Adopted 7 - 0
Ord . 2011 -006
Related County Contract #: Related File Numbers: Ordinance or Resolution Number:
Ord . 2011 - 006
Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on
the County 's website at: www. co. whatcom. wa. us/council.
SPONSORED BY : Consent
PROPOSED BY : PDS
INTRODUCTION DATE : 2 / 08 / 2011
ORDINANCE # 2011 - 006
ORDINANCE TO AMEND A PORTION OF THE OFFICIAL WHATCOM COUNTY
ZONING MAP FROM RURAL 5 ( R5A) TO LIGHT IMPACT INDUSTRIAL ( LII ) ON
35 ACRES WITHIN THE RURAL COMPREHENSIVE PLAN DESIGNATION .
WHEREAS, notice of the Whatcom County Hearing Examiner public
hearing for the subject rezone and development agreement was published
in the Bellingham Herald on November 25 , 2010 ; and ,
WHEREAS, notice of the Whatcom County Hearing Examiner public
hearing was posted on the subject site ; and ,
WHEREAS, notice of the subject site specific rezone and development
agreement was sent to state and local agencies , and property owners
within 1000 feet of the site , on August 11 , 2010 ; and ,
WHEREAS, the SEPA Official issued a Determination of Non - significance
on November 2 , 2010 ; and ,
WHEREAS, the Whatcom County Hearing Examiner held a public hearing
relating to the subject site specific rezone and development agreement on
December 8 , 2010 and recommended approval of the rezone and
development agreement ; and ,
WHERAS, the Whatcom County Hearing Examiner received testimony
and prepared the Findings of Fact, Conclusions of Law , and
Recommendation to the Whatcom County Council for Council review and
consideration .
The Council makes the following findings of fact and conclusions :
FINDINGS OF FACT
1 . The applicant is requesting a site specific rezone and development
agreement for 35 acres from Rural 5 ( R5A) to Light Impact Industrial
( LII ) , consistent with the Rural Comprehensive Plan Designation .
2 . The subject property currently has 50 , 000 square feet of buildings with
associated parking , access , and infrastructure to support the existing
fish and flax seed processing business .
3 . Current zoning to the north , east and south is R5A, zoning to the west
is High Impact Industrial within the Cherry Point Urban Growth Area .
1
4 . The LII designation will be consistent with the Rural Comprehensive
Plan Designation .
5 . The LII designation will not be inconsistent with existing land uses ; it
will support the existing business in the R5A zone .
6 . The proposed rezone and development agreement conforms to the
requirements of the Growth Management Act, and is consistent with
the Goals and the County- Wide Planning Policies of the Whatcom
County Comprehensive Plan .
CONCLUSION
This proposal meets all of the legal requirements as noted within the Findings
of Fact, Conclusions of Law , and Recommendation to the Whatcom County
Council . The proposed amendment to rezone the subject property from R5A
to LII will be compatible with the present uses of the property . The subject
amendment is consistent with the approval criteria of WCC 20 . 90 . 060 and
serves the public interest .
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NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council
that :
Section 1 . The Official Whatcom County Zoning map , is hereby amended as
shown in Exhibit A .
Section 2 . Adjudication of invalidity of any of the sections , clauses , or
provisions of this ordinance shall not affect or impair the validity of the
ordinance as a whole or any part thereof other than the part so declared to
be invalid .
ADOPTED this 22nd day of February , 2011
WHATCOM COUNTY COUNCIL
-c " C O (/ 0 WHATCOM COUNTY,
?• sHATCO .�0 WASHINGTON
�� 6o OUNTY le.
• _ :
bana•Q19r• • • 3; Co��ncil Clerk hairperson , Sam Crawford
• • . • • • �
APPRO\/Ei . &i e‘form : roved ( ) Denied
C'7y2
Ci ii Deputy Prosecutor P e Kremen, Executive
Date : 3 -4 .)‘/- 1 (
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EXHIBIT A
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EXHIBIT "A"
Legal Description
Property :
THE SOUTHWEST QUARTER, SOUTHWEST QUARTER, OF SECTION 34,
TOWNSHIP 39 NORTH, RANGE 1 EAST OF WILLAMETTE MERIDIAN.
EXCEPT THE TRACT OF LAND IN THE SOUTHWEST QUARTER OF THE
SOUTHWEST QUARTER OF SECTION 34, T 39 N, R 1 E, W.M. , WHATCOM
COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS :
BEGINNING 660 FEET WEST OF THE NORTHEAST CORNER OF SAID
SUBDIVISION; THENCE EAST TO THE NORTHEAST CORNER OF SAID
SUBDIVISION; THENCE SOUTH 660 FEET ALONG THE EAST LINE OF SAID
SUBDIVISION TO A POINT; THENCE IN A NORTHWESTERLY DIRECTION TO
THE POINT OF BEGINNING, LESS ROADS .
11111 1111 2110401977
Page : 1 of 15
4/20/2011 2 : 47 PM
AGR $76 . 00
Whatcom County , WA
Request of : WHATCOM COUNTY COUNCIL
COVER SHEET
Return to :
JACK O. SWANSON
BELCHER SWANSON LAW FIRM, P .L.L. C .
900 DUPONT STREET
BELLINGHAM, WA 98225
Document Title(s) (or transactions contained herein) :
1 . Development Agreement
Reference No :
Grantor(s) (last name, first name and initials) :
1 . Whatcom County
Grantee(s) (last name, first name and initials) :
1 . Barlean 's Land Company, LLC
2. Barlean 's Land Company 2, LLC
Legal Description (abbreviated: i .e . , lot, block, plat or quarter, quarter, section, township and range) :
Ptn. SW 1/4 SW 1/4 of Sec. 34, Twp. 39 N., R. 1 E. of W.M.
Assessor's Parcel/Tax I.D . Number:
390134 039104 0000
390134 104100 0000
390134 106035 0000
390134 035037 0000
390134 045069 0000
WHEN RECORDED RETURN TO:
JACK O. SWANSON
BELCHER SWANSON LAW FIRM, P.L.L.0
900 DUPONT STREET
BELLINGHAM, WA 98225
Document Title: Development Agreement
Grantor/borrower: Whatcom County
Grantee/beneficiary: Barlean ' s Land Company, LLC
Barlean ' s Land Company 2, LLC
Legal Description : Ptn . SW 1/4 SW 'A of Sec . 34, Twp. 39 N ., R. 1 E. of W.M .
Assessor' s Tax Parcel No. : 390134 039104, 104100, 106035 , 035037 and 045069
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (herein "Agreement") is between
Whatcom County, a municipal corporation (herein "County") and BARLEAN ' S LAND
COMPANY, LLC, a Washington limited liability company, and BARLEAN ' S LAND
COMPANY 2, LLC a Washington limited liability company (herein `Barlean"). This
Agreement is effective upon adoption of the ordinance approving this Agreement by the
Whatcom County Council (herein "Effective Date") .
RECITALS :
1 . Since 1972, Barlean has operated a fish processing business, and, since
1993 , a flaxseed processing operation (herein the "Project"). Pursuant to an application
for site specific rezone (PLN2010-00020), Barlean has requested expansion of the Project
on approximately 35 acres of real property (herein the "Property"), more particularly
described on the attached Exhibit "A."
2 . The parties desire to enter into this Agreement to provide for the planning
and development of the Property in accordance with the approvals of the County and in a
comprehensive and predictable manner. More specifically, this Agreement relates to
specific understandings with regard to the implementation of the approvals granted by the
County in connection with the above-mentioned site specific rezone application.
I
3 . This Agreement is authorized pursuant to the provisions of RCW
36 . 70B . 170 through 210.
4. Upon approval of the requested site specific rezone, the provisions of this
Agreement are consistent with applicable development regulations adopted pursuant to
Chapter 36 . 70A RCW.
5 . The Whatcom County Hearing Examiner held a public hearing on
December 8 , 2010 to consider this Agreement and recommended approval on January 11 ,
2011 .
6 . The Whatcom County Council considered this Agreement and
recommended approval on February 22, 2011 .
7 . Compliance with the provisions of the State Environmental Policy Act (SEPA)
have been achieved.
NOW, THEREFORE, the parties covenant and agree, as follows :
1 . Site Specific Rezone. The Property is hereby rezoned to Light Impact
Industrial (LII) as provided in WCC Chapter 20. 66. This rezone is subject to the
provisions and limitations found in this Agreement and the Conditions attached hereto as
Exhibit C .
2 . Site Plan. The site plan for the Project, generally as set forth on page 3 of
Exhibit No . 16 in the Hearing Examiner file, is approved, subject to modifications to
building location, maneuvering spaces, loading and unloading docks, parking, and
landscaping approved by Whatcom County Planning and Development Services, where
modifications decrease the overall impact of the project on offsite properties . To the
extent possible roads, parking areas, and loading and unloading docks should be located
inside of the new structures to minimize aesthetic impacts and noise on the properties to
the north and east. The landscaping plan should include the required 25 -foot buffer, but
also should include groups of trees and vegetation around the outside of the new 20,000-
square foot buildings authorized by this Agreement, designed to break up the portions of.
the new building facades exposed to the north, west, and east. The new buildings
authorized by this Agreement should be located as far from the northern and eastern
boundary of the site as is practicable while still using the buildings as buffers for internal
roads and parking areas.
In addition to the 25 -foot landscape buffer required around property lines by
existing regulation, a Landscaping Plan should be submitted and designed to reduce the
adverse aesthetic impacts to the properties to the north, west, and east.
All landscaping within the required 25 -foot landscape buffer shall be planted in
the Spring of 2011 . This will allow the buffers to provide the aesthetic benefits as soon
2
as possible. For the same reason, these buffers, and other required landscaping, should
include fast growing, native trees and vegetation. All other landscaping identified in the
Landscape Plan, now being required, which can be planted now without interfering with
future construction and development allowed pursuant to this Agreement, shall also be
planted in the Spring of 2011 .
Additionally, modifications to building location, maneuvering spaces, parking,
and landscaping may be approved by the Building Official, where such modifications are
reasonably required and do not materially increase the overall impact of the project.
3 . Use Limitations. The Light Impact Industrial (LII) district established by
this Agreement and the site specific rezone which this Agreement accompanies is hereby
limited, as follows :
a. Permitted Uses. Only the expansion of the existing uses already
onsite as authorized, including "primary processing of fish products" as allowed per
CUP93 -00036, CUP97-00002, CUP2000-00042 and CUP2007-00026 . All other
Permitted Uses are prohibited.
b. Accessory Uses. Accessory uses authorized by WCC 20 . 66 . 100
are allowed, except for those uses allowed by WCC 20 .67. 106 .
c. Conditional Uses. All conditional uses allowed in the district are
prohibited.
4. Term. The term of this agreement is thirty (30) years from the effective
date.
5 . Reservation of Authority. The County hereby reserves the authority to
impose current regulations in effect at the time of application for a Building Permit so
long as they do not materially interfere with the reasonable expansion of existing uses
envisioned by this Agreement; provided, however, in all cases new regulations can be
applied when necessary to mitigate a serious threat to public health and safety, pursuant
to RCW 36.70B . 170(4) .
6. CUPs Reserved. Those uses, activities, processes, buildings and
improvements authorized by the conditional use permits CUP93 -00036, CUP97-00002,
CUP2000-00042 and CUP2007-00026 are hereby preserved and survive the
implementation of this Agreement and the zoning which it modifies.
7 . Execution of Additional Documents. The parties agree to execute any
documents which may be necessary, appropriate or convenient to carry out the intent of
the transaction contemplated by this Agreement.
3
8 . Binding Effect. After recording with the Whatcom County Auditor, this
Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, assigns, and personal representatives.
9 . Notices. All notices or demands to be given by each party to the other
pursuant to this Agreement shall be in writing and either personally delivered or
deposited in the United States mail, postage prepaid, and addressed as follows :
Whatcom County David and Barbara Barlean
5280 Northwest Drive 4936 Lake Terrell Road
Bellingham, WA 98226 Ferndale, WA 98248
Copy to :
Jack O . Swanson
Belcher Swanson Law Firm, P . L.L.C .
900 DuPont Street
Bellingham, WA 98225
10 . Entire Agreement. This Agreement may be the result of extended
negotiations and series of proposals and counter proposals . Each party may be
represented by legal counsel . Each party agrees that this Agreement constitutes the entire
agreement between the parties with respect to subject matter hereof This Agreement
may be amended and modified by a subsequent written agreement and is not the subject
of oral modifications.
11 . Severability. If any provision of this Agreement shall be deemed to be
null and void or unenforceable by the action of a court of law, such provision shall be
severable and not affect the balance of this Agreement, which shall remain in full force
and effect.
12 . Applicable Law. This Agreement shall be construed, interpreted and
enforced pursuant to the laws of the State of Washington and the parties agree that the
Superior Court of Whatcom County shall be the appropriate venue of any suit or
proceeding brought with respect to this Agreement.
DATED this 0%514 day of February ,2011 .
WHATCOM CO TY
&,*c
Pete Kremen , County Executive
Approved as to form:
4
Office : 1rr om County Prosecuting Attorney
Attest:
Finance Dir - ctor
BARLEAN ' S LAND COMPANY, LLC
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By •'- -- ,�_ p
BARLEAN ' S LAND COMPANY 2, LLC
B : i � .
STATE OF WASHINGTON )
)ss.
COUNTY OF WHATCOM )
I certify that I know or have satisfactory evidence that Pet Krern ev' is the
person who appeared before me, and said person acknowledged thatfihe signed this instrument,
on oath stated that /he was authorized to execute the instrument, and acknowledged it as the
County Executive of Whatcom County ' - • • • • : ; D - - ; ; - = to be
the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED this 02 514 day of February , 2011 .
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Ni. M%� PRINTED AME: Satan h e. M • M ( ( olh e✓
..•N••..... � , 4 Notary Public in and for the State of
le - `s 5 Washington, residing at 13th 41311 Govt. .
OAR_�Y•. a My Commission Expires I2 - 3t - � �F .
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?3 'sister s
OF
STATE OF WASHINGTON )
)ss.
COUNTY OF WHATCOM )
I certify that I know or have satisfactory evidence that ierkb gE-Ai AJETY is
the person who appeared before me, and said person acknowledged that he/she signed this
instrument, on oath stated that he/she was authorized to execute the instrument, and
acknowledged it as the Finance Director of Whatcom County to be the free and voluntary act of
such party for the uses and purposes mentioned in the instrument.
DATED � / at- day ofTA -c-H 2011 .
ir �0� Tp,4 PRINTED NAME:M I Cr*4-&, L. • LAkca,Lq
= � It
• 315< 't Notary Public in and for the State of
Washington, residing at F-eIJ AME
3 �. G@UG = My Commission Expires 01 - 0 9 - Zo IS .
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STATE OF WASHINGTON )
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COUNTY OF WHATCOM , ) ,\
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On this 2q day ofry, 2011 , before me personally appeared
'P , 4 Vale ' Aeay. , to me known to be a Member of BARLEAN ' S LAND COMPANY,
LLC, a Washington limited liability company, the company that executed the within and
foregoing instrument to be the free and voluntary act and deed of said company for the uses and
purposes therein mentioned, and on oath stated that he was authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year
first above writte ,, •••' \� i
PRINTED NAME : Vick---C. ILkk�
i&.O � Arj' ,. �� Notary Public in and for the State of
'v '♦ : z . Washington, residing at &t co AA-
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��1 fig`'` O ��Q �. My Commission Expires 0`a- 24117 .
•9 1 A .A'
STATE OF WASHINGTON )
)ss.
COUNTY OF WHATCOM )
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On this 2�k lay of M`p O+; before me personally appeared 6 4 10- 1 nAttlM
to me known to be a Member of BARLEAN ' S LAND COMPANY 2, LLC, a Washington limited
liability company, the company that executed the within and foregoing instrument to be the free
and voluntary act and deed of said company for the uses and purposes therein mentioned, and on
oath stated that he was authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year
first above written. '
. C •gkig Sie
���:,,•$ILL•s' PRINTED NAME: J`iC4 c . 1I br
(5:4" " f Ift Notary Public in and for the State of
Ry 4' • t I Washington, residing at W ak to sz O` r : z My Commission Expires 4` ( V t to3 .
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EXHIBIT "A"
Legal Description
Property :
THE SOUTHWEST QUARTER, SOUTHWEST QUARTER, OF SECTION 34,
TOWNSHIP 39 NORTH, RANGE 1 EAST OF WILLAMETTE MERIDIAN.
EXCEPT THE TRACT OF LAND IN THE SOUTHWEST QUARTER OF THE
SOUTHWEST QUARTER OF SECTION 34, T 39 N, R 1 E, W.M. , WHATCOM
COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS :
BEGINNING 660 FEET WEST OF THE NORTHEAST CORNER OF SAID
SUBDIVISION; THENCE EAST TO THE NORTHEAST CORNER OF SAD
SUBDIVISION; THENCE SOUTH 660 FEET ALONG THE EAST LINE OF SAID
SUBDIVISION TO A POINT; THENCE IN A NORTHWESTERLY DIRECTION TO
THE POINT OF BEGINNING, LESS ROADS .
EXHIBIT A
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Exhibit " C "
A . Whatcom County Planning and Development Services - Planning
1 . Maximum building allowable floor area shall not exceed 20 , 000
square feet .
2 . The maximum building height shall not exceed 35 feet .
3 . The maximum building coverage shall not exceed 35 percent of the
lot size .
4 . At least 15 percent of the site shall be kept free of buildings ,
structures , stored materials , hard surfacing , parking areas and other
impervious surfaces .
5 . Setbacks from all properties zoned Rural and the county road shall
be no less than 50 feet . Landscaping per WCC 20 . 80 . 300 shall be
included within the setback area .
6 . Roof mounted mechanical equipment must be screened so as not to
be visible by surrounding uses or roads .
7 . A 25 feet landscape buffer shall be planted along all property lines
adjacent to Rural zoning designation and the county road , except in
areas where existing development and engineering concerns
preclude a planted buffer.
8 . All landscaping shall be consistent with WCC 20 . 80 . 300 and shall
include at a minimum :
a . Plant materials that have minimal irrigation needs, and are
n ative or have a demonstrated suitability for Whatcom County
are required . Twenty-five -foot planted buffers shall , at a
minimum , consist of two offset rows of predominantly
coniferous trees at an average spacing of 15 feet triangulated
o n center or an equivalent effect . Some deciduous trees shall be
included and shrubs may be interspersed to provide interlocking
root structures to reduce windthrow . Existing natural buffers are
e ncouraged but may need additional width or be augmented
with additional landscaping or fencing to provide the required
sight barrier.
b . A minimum five -foot wide landscape strip shall be provided
around the perimeter of all parking areas . Natural or planted
buffers may be considered to meet this requirement . Tree
spacing will be as required parallel to rights - of-way . Whenever a
n onresidential parking lot containing more than 10 parking
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spaces is located in or adjacent to a residential zone , it shall
also be screened on any side facing residential uses or zones
where there is no intervening street . This screen shall consist of
a fence , wall or acceptable planting screen at least four feet in
height . The visual impact of parking areas shall be minimized by
separating the area into modules that contain no more than 12
vehicles in a row . Each module shall be separated from other
areas by a five -foot wide planting strip containing trees,
shrubbery , or other ground cover in such substantial density as
to break up long sight lines and overviews of parked cars .
Adjacent uses on separate parcels may combine their parking
lots to enhance circulation without the necessity for intervening
landscaping except for maintaining the module pattern .
9 . All landscaping and required irrigation shall be installed within one
year of the effective date of the rezone . The county may accept for a
period of up to one year a performance bond or other monetary
security as approved by the prosecuting attorney in lieu of
immediate installation for 125 percent of the labor and materials cost
to install the approved landscaping and required irrigation . A
landscaping maintenance bond or other approved monetary security
for 10 percent of the labor and materials cost to install the approved
landscaping shall be submitted prior to occupancy or release of any
landscaping performance security held by the county . The
maintenance security shall be released in five years after completion
of the landscaping if the landscaping has been maintained in a
healthy , growing condition , and if any dead or dying plants have
been replaced .
10 . Prior to the issuance of the first building permit after the effective
date of the rezone the applicant must install adequate parking for the
existing development . Parking for future buildings will be determined
through the building permit process . One space shall be created for
every employee ( on the largest shift for which the building is
designed ) and one space for each motor vehicle maintained on the
premises ( if any ) . One space is also necessary for every 250 square
feet of retail space . Parking shall be installed in accordance with
federal and state regulations for ADA accessibility . In the event there
is a conflict between the state and the federal regulation ( s ) , the state
regulation ( s ) shall apply .
11 . A loading space shall have minimum dimensions of not less than 14
feet in width , 60 feet in length , exclusive of driveways , aisles , and
other circulation areas , and a height of clearance of not less than 15
feet . One off- street loading space shall be provided and maintained
on the same lot for every separate occupancy requiring delivery of
goods and having a gross floor area of at least 5 , 000 square feet in
the case of manufacturing , warehouse or terminal buildings , and
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10 , 000 square feet for commercial , hotel , institutional and public
buildings . One loading space shall be provided for each additional
10 , 000 square feet for retail and restaurant buildings ; and one for
each additional 30 , 000 square feet for manufacturing , warehouse
and service uses . Required off- street loading spaces are not to be
included as off- street parking space in computation of required off-
street parking space . All off- street loading spaces shall be located
totally outside of any street or alley right- of-way .
12 . All required yards , parking areas , storage areas , operation yards and
other open uses on the site which are adjacent to a public right- of-
way shall be maintained in a neat and orderly manner at all times .
13 . All processes which produce physical off- site impacts of a detrimental
nature shall be sufficiently enclosed to mitigate the impact .
14 . Each activity is required to continuously employ the best pollution
and nuisance abatement technology when reasonable and practicable
available ; provided that where federal , state , or regional laws or
regulations provide for the level of technology to be employed the
appropriate standards shall apply .
15 . Heat, light, glare , including exterior lighting , shall be so constructed ,
screened , or uses as to not unreasonable infringe upon the use and
enjoyment of property beyond the boundaries of the district .
16 . No ground vibration other than that cause by highway vehicles ,
trains or construction activity shall be permitted which is discernable ,
without instruments, at or beyond the property line for the use
concerned .
17 . No odor, dust, dirt or smoke shall be emitted that is detectable at or
beyond the property line , for the use concerned , in such a
concentration or of such duration as to cause a public nuisance , or
threaten health or safety , or to unreasonable infringe upon the use
and enjoyment of property beyond the boundaries of the district .
18 . No use shall exceed the maximum environmental noise level
established by Chapter 173 - 60 WAC .
19 . There shall be no emissions of toxic gases or fumes .
20 . There shall be no off- site release to soil or surface drainage ways of
water born or liquid pollutants .
10
B . Whatcom County Health Department
The Whatcom County Health Department ( WCHD ) has reviewed the site
specific rezone referenced above and has proposed the following for
development agreement conditions :
1 . Sewage/Industrial Waste Water : Any expansion or addition to any
building will require the WCHD review and approval . All waste water
will need to be accounted for and disposed of in an approved
manner. Approved permits for wastewater include but are not limited
to the following :
• On Site Sewage Permits
• NPDES Permits from the Washington State Department of Ecology
• A waiver from NPDES permitting from the Washington State
Department of Ecology
2 . Water : The present facility is served by the Barleans Group ' A' public
water system . This system utilizes an exempt well that is allowed to
withdraw 5 , 000 gallons per day . Any expansion of the businesses on
site will require an approved water availability form from WCHD . The
applicant will also be required to provide documentation that the
facility will not exceed the allowable water withdrawal .
3 . Food Service : Any expansion of the retail fish operation will require
approval from WCHD . Contact Luis Flores at 676 - 6724 for more
information .
4 . Department of Agriculture : Any expansion of the wholesale fish or
flax seed operation requires written approval from the Washington
State Department of Agriculture .
5 . Solid Waste : All future development and expansion must comply
with WAC 173 - 350 - Solid Waste Rules.
C . Whatcom County Public Works Engineering
Conditions of Rezone Approval
1 . No vehicle access to Walltine Road , a local access road , from rezoned
property .
2 . Sight distance at the existing and proposed access points to be verified
prior to subsequent building permit issuance , by a professional land
surveyor or professional civil engineer . Sight distance requirements
to meet current Development Standards .
3 . The current Whatcom County Development Standards to apply at time
of future building permit applications , to include but not limited to the
following :
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a . Traffic generation and impact .
b . Stormwater quality and quantity .
c . Access management .
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e
WHATCOM COUNTY HEARING EXAMINER
RE: Site Specific Rezone ) PLN2010-0020
Development Agreement ) . PLN2010-0023
) FINDINGS OF FACT,
Barlean 's Land Company, L.L. C. ) CONCLUSIONS OF LAW,
) AND RECOMMENDATION TO THE
) WHATCOM COUNTY COUNCIL
SUMMARY OF APPLICATION AND RECOMMENDATION
Application: Barlean ' s Land Company, L.L.C. seeks a Site Specific Rezone and approval of an
associated Development Agreement in order to rezone 35 -acres located in the Rural
zoning district to Light Impact Industrial. The site is within the Rural Comprehensive
Plan Designation.
Recommendation: The Whatcom County Hearing Examiner recommends that the Whatcom
County Council grant approval to the requested Site Specific Rezone and
approval of the modified Development Agreement attached hereto .
FINDINGS OF FACT
INTRODUCTION
The following Findings of Fact and Conclusions of Law are based upon consideration of the
exhibits admitted and evidence presented at the public hearing.
I.
Applicant: Barlean' s Land Company, L.L.C .
Property Address : 4836 Lake Terrell Road
Ferndale, Washington 98248
Legal Description: Located within the SW1/4 of the SW 1/4 of Sec34, T39N, R1E, W.M.
Assessor' s Parcel Numbers : 390134 039104, 104100, 106035 , 035037, and 045069
Zone: Rural (R5A)
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Subarea: Cherry Point Ferndale
Comprehensive Plan: Rural
SEPA Review: A Determination of Non-significance was issued on November 2, 2010.
Fire District: No . 7
School . District: Ferndale School District
Water Supply: Group "A" Water System
Sewage Disposal : On-site Septic System
Topography: The site is described as mostly flat.
Vegetation: Vegetation consists mostly of pasture grass areas.
Adjacent Land Uses : North: Residential
East: Industrial/Refinery
South: Residential/Lummi Nation Reservation
West: Residential
Utility Easements : No utility easements are necessary.
Variances : None requested.
AUTHORIZING ORDINANCES AND POLICY
Whatcom County Comprehensive Land Use Plan
Whatcom County Code Chapter 15 , Building Code
State Environmental Policy Act (SEPA) . Washington Administrative Code Chapter 197- 11
Whatcom County Code Chapter 16. 16, Critical Areas
Whatcom County Code Title 20, Official Whatcom County Zoning Ordinance
Whatcom County Code Title 24, Health Regulations
Revised Code of Washington 36 . 70B . 170 through .210 and Chapter 58 . 17
Legal Notices : Legal Notice of Application, August 11 , 2010
Certificate of Mailing of Notice of Application, August 11 , 2010
Certificate of Mailing of Notice of Public Hearing, November 19, 2010
Certificate of Posting, Notice of Public Hearing, November 23 , 2010
Legal Notice of Public Hearing, November 25 , 2010
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Hearing Date : December 8 , 2010
Parties of Record:
Barleans ' s Land Company 2 L.L. C .
4836 Lake Terrell Road
Ferndale, WA 98248
Jack Swanson
Belcher Swanson Law Firm, P.L.L .C.
900 Dupont Street
Bellingham, WA 98225
Larry Stoner
4751 Birch Bay-Lynden Road, No . 259
Blaine, WA 98230
Doug Scoggins
PO Box 2965
Ferndale, WA 98248
Janice Lapsansky
3585 Walltine Road
Ferndale, WA 98248
Laurita Smith
3590 Walltine Road
Ferndale, WA 98248
Ernie Weed
4936 Lake Terrell Road
Ferndale, WA 98248
Heidi Kaempfer
3662 Walltine Road
Ferndale, WA 98248
Tyler Schroeder and Amy Keenan
Planning and Development Services
Roger McCarthy
Division of Engineering
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Exhibits :
1 Land Use Application, with attachments
1 - 1 - Supplemental Information
1 -2 Fee Responsibility, Doug Scoggins, June 25 , 2010
. 1 -3 Agent Authorization
1 -4 Hearing Examiner Checklist
1 -5 Property Owner Mailing labels
1 -6 County Assessor Info
1 -7 Chicago Title Tax Information with Statutory Warranty Deed
1 -8 Application Processing Track Form
1 -9 Property Owner Notice of Application, dated August 11 , 2010
1 - 10 Letter of Completeness, dated May 11 , 2010
1 - 11 Customer Receipts
2 Staff Report, dated November 29, 2010
3 Agency Comments
4 Letters of Concern: Laurita Smith, dated November 11 , August 25 , and December 3 , 2010 ;
Janice Lapsansky and family, dated August 23 , 2010 ; Ernie Weed; Heidi Kaempfer, August
25 and August 20, 2010 via email
5 Development Agreement
6 Preliminary Traffic
7 Zoning and Vicinity Map
8 Site Plan, April 2010
9 Code Data Summary Sheet
10 DNS , dated November 2, 2010 with Checklist attached
11 Legal Notice of Application, dated August 11 , 2010
12 Certificate of Mailing of Notice of Application, August 11 , 2010
13 Certificate of Mailing of Notice of Public Hearing, November 19, 2010
14 Certificate of Posting, Notice of Public Hearing, November 23 , 2010
15 Legal Notice of Public Hearing, November 25 , 2010
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16 Large Site Plan to scale, April 2010
17 Letter dated December 3 , 2010 from Jack Swanson re : PLN2010-0020 and PLN2010-0023
18 White three-ring notebook of 31 buildings larger than 12,000-sq feet located in "Rural" and
"AG" areas of Whatcom County
II.
On November 10, 2010, the Whatcom County Hearing Examiner conducted a public hearing
on a proposed Development Agreement, submitted by Barlean' s Land Company, L.L.C.
Such agreements are authorized pursuant to RCW 36 . 70B . 170 through 30. 70B .210.
III.
The property in question is owned by Barlean ' s Land Company, L.L. C. and consists of 40-
acres located north of Slater Road and east of Lake Terrell Road. Both Slater Road and Lake Terrell
Road are designated as Major Collectors.
The 40-acres owned by Barlean ' s Land Company, L.L.C. is roughly a square parcel. It is
bordered on the north by Walltine Road.
Slater Road and Lake Terrell Road serve as major roads, servicing the High Impact Industrial
zoned area to the west of this site and north of Birch Bay. Much of the traffic accessing Intalco and
the local refineries use Slater Road and Lake Terrell Road to access these industrial sites from both
Bellingham and Ferndale. Residential traffic to Sandy Point Shores and Sandy Point Heights travels
by the subject property and turns south at the corner of Lake Terrell and Slater roads.
There is little development to the south of the proponents ' property along the south side of
Slater Road and little development west of Lake Terrell Road, across from the Applicant' s property.
There is scattered rural residential development north of the site along Walltine Road. Property
owners just to the north and northwest of the site along Walltine Road expressed . opposition to and
concern about the proposed Site Specific Rezone.
Iv.
The original site owned by Barlean was a 10-acre site in the southwest portion of the 40-
acres . This 10-acres contains both the existing fish business [including retail sales] and the existing
flaxseed oil processing business . The fish processing and sales business has been onsite since 1972 .
In 1993 , Barlean applied for a Zoning Conditional Use Permit to allow the processing of flaxseed in
order to produce flaxseed oil. At the time the 1993 Zoning Conditional Use Permit was granted, the
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flaxseed oil processing use was a Conditional Use allowed in the Rural zone. Because of changes in
land use regulations over the past 20-years, the processing of Agricultural products grown outside of
Whatcom County can no longer be approved as a Zoning Conditional Use in the Rural zone. In order
to expand the existing flaxseed oil business, the Applicant is seeking the proposed Site Specific
Rezone.
Since 1993 , the flaxseed oil business has grown steadily and has expanded through a number
of Zoning Conditional Use Permits and Permit Revisions, resulting in a lack of space for any
additional expansion of the business within the original 10-acre parcel . Expansion of the business
beyond the original 10-acre site cannot be done unless this Site Specific Rezone is approved.
The existing business now has shifts running 24-hours a day and employs in the
neighborhood of 100-people . The flaxseed oil market supports additional expansion of the business,
leading to this proposal, which would allow, in the future, four 20,000-square foot buildings to be
constructed on the 35 -acres of LII that would be created by this rezone. Three of the proposed
buildings are associated with the flaxseed oil business. The proposed buildings are for an additional
seed storage building, an additional material warehouse building, and a future packing plant. The
final building is a dry boat storage building proposed in conjunction with the commercial fisheries
business .
The Applicant proposes that 5 -acres, located in a triangular shape along the northeastern
corner of the property, remain as Rural Five Acre zoning, which will allow future development of a
single-family residential site. The purpose is to create additional Rural buffering for the property
owners living to the north and northeast of the site. The closest existing residence to the proposed
new building locations appears to be approximately 500-feet away from the building site.
The existing 10-acres has in excess of 50,000-square feet of buildings, plus large parking
areas, roadways, areas for septic drain fields, and areas for previously approved buildings which have
not yet been constructed. The proposed Site Specific Rezone would add 25 -acres for additional
expansion of the existing business .
V.
The manufacturing processes that take place on this site produce very little noise and it
appears that three of the four proposed buildings would mostly be used for storage. Both the
Whatcom County Code and the Washington Administrative Code will require noise from the site to
meet current noise standards applicable to properties bordering residential areas. It does not appear
that excessive noise will be a major issue with the proposed expansion.
Concerns were raised about potential adverse impacts from traffic. Expansion of the business
will result in an increase in the number of trucks bringing raw materials in and shipments of
processed product out. The location of this property on the corner of Slater Road and Lake Terrell
Road tie it immediately into major collector roads designed specifically for this purpose and which
already serve the nearby Heavy Impact Industrial uses .
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In addition to increased truck traffic, the proposed expansion, when fully built-out, should add
approximately 20 new employees. The addition of 20 employees is about a 20% increase over the
100 employees already working onsite. Mr. Barlean' s businesses have created a large number of
jobs, benefiting the economy of Whatcom County. Additional jobs will bring additional, positive
economic impacts with minor adverse off-site impacts .
VI.
In order to protect the scattered rural residences located in the vicinity of this business, the
Development Agreement would not allow access to the site from Walltine Road and would require
significant landscaping. The expansion can be accomplished without major, additional adverse
impacts to surrounding rural properties .
VII.
The proposed Site Specific Rezone has been reviewed by Whatcom County Planning and
Development Services, and specifically by the Technical Review Committee. The Technical Review
Committee prepared a Staff Report, dated November 29, 2010, Exhibit 2, in the Hearing Examiner
file. The Technical Review Committee addressed each of the criteria and requirements for the
proposed Site Specific Rezone and recommended approval, subject to conditions.
The Findings of Fact set forth by the Technical Review Committee in the Staff Report are
supported by the record as a whole, and are adopted by the Hearing Examiner as Findings of Fact
herein. A copy of the Staff Report is attached hereto.
Staff addressed the citizen comments, concerns, and reasons for their opposition in the Staff
Report. The Hearing Examiner concurs in Staffs conclusion that, subject to the Conditions of
Approval, the proposed Site Specific Rezone and the associated business expansion would contain
sufficient mitigation to minimize to an acceptable level the actual impacts on other property owners
in the vicinity.
The potential adverse impacts from this proposal include noise from processing activities and
from traffic, along with the aesthetic impacts, associated with a 35 -acre site containing numerous
large buildings.
Both the existing buildings and the proposed buildings are consistent with other large
buildings found throughout the Rural and Agriculture zones of Whatcom County. The addition of
four large pole buildings to this already heavily developed site will not significantly change the
existing character of the immediate vicinity. Most of the aesthetic impacts can be minimized through
the appropriate landscaping.
VIII.
The Project Proponents have already created a low impact processing facility which provides
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r
a very significant number of jobs and indirect economic benefits derived from the business . These
businesses are low impact. They do not result in noxious or hazardous fumes or odors; do not appear
to have adverse air quality impacts; and do not result in excessive noise.
The Hearing Examiner concludes that the proposed expansion will not add significant
additional impacts when compared to those already resulting from the existing business.
IX.
Any Conclusion of Law which is deemed a Finding of Fact is hereby adopted as such. Based
on the foregoing Findings of Fact, now are entered the following
CONCLUSIONS OF LAW
I.
A Site Specific Rezone is in fact a request for a Development Permit. The development
allowed, through the granting of this Site Specific Rezone, will be restricted and conditioned by
existing regulations and by the Development Agreement.
The expanded Light Impact Industrial development, allowed by the Rezone and Development
Agreement, will be restricted to allow only expansion of the existing fish and flaxseed oil businesses .
No new uses will be allowed on the site. Site Specific Rezones and Development Permits are
specifically authorized by State law. The additional development allowed by this proposal will be
limited in size, scale, use, and intensity. The proposed intensification of the existing development on
the subject properties is allowed both by the Growth Management Act and by Whatcom County
regulations implementing the Growth Management Act.
II.
The requested Site Specific Rezone, which would result in designating the property as Light
Impact Industrial, is consistent with and covered by the Rural Element of the Whatcom County
Comprehensive Plan . The Rural Element of the Comprehensive Plan includes areas set aside for
Light Impact Industrial uses . The Rural zone and the Rural Comprehensive Plan Designation
envision a multi-use zone, which can include low impact manufacturing facilities.
III.
The Hearing Examiner concurs in the Staff conclusion that impacts from the proposed
expansion will be adequately mitigated by existing Whatcom County regulations. The proposed
development, when it takes place, will be subject to the requirements of the Whatcom County
Building Code, the Critical Areas Ordinance, the requirements of the Light Impact Industrial zone,
including the Development Regulations, which require landscaping, appropriate parking, limited
building height, building setbacks, and lot coverage restrictions.
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As generally proposed, the site plan indicates that the proposed future development can be
accomplished in a manner consistent with all of the applicable regulations and without a significant
additional adverse impact on neighboring property owners or on the character of the general vicinity.
IV.
The Hearing Examiner concurs with the Staff conclusion that the proposal, subject to
conditions, is consistent with the requirements for Site Specific Rezones, Chapter WCC 20 . 90 . 060 .
The Hearing Examiner adopts Staff' s written Findings and Conclusions, regarding consistency with
the Criteria for a Site Specific Rezone, by this reference.
V.
In order to minimize, to the greatest extent possible, impacts from this proposed expansion on
neighboring rural residential use, the Hearing Examiner has added or modified language in the
Development Agreement proposed. These minor changes are designed to minimize both noise and
aesthetic impacts on nearby Rural zoned parcels to the north along Walltine Road.
VI.
Any Finding of Fact deemed to be a Conclusion of Law is hereby adopted as such. Based on
the foregoing Findings of Fact and Conclusions of Law, now is entered the following
RECOMMENDATION
The Whatcom County Hearing Examiner hereby recommends that the Whatcom County Council
grant approval to this Site Specific Rezone Application, subject to the following conditions :
1 . The proposed use and location of the proposed development onsite shall not be amended or
changed in any significant way without further approval . The Applicant shall comply with
the Conditions of the attached Development Agreement and with all other applicable local,
State, and Federal regulations .
DATED this l lth day of January 2011 .
Wit -1411 .4113d2A:72Z1
Michael Bobbink, Hearing Examiner
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