Loading...
HomeMy WebLinkAboutord2002-060WHATCOM COUNTY COUNCIL AGENDA BILL NO. AB2002 -361 CLEARANCES initial Date Date Received in Council Office Aendalate Assignation: Originator: Kraig Olicam o 09123102 10108102 -02 Introduction Division Head: Sylvia Goodwin 'y i J ZZ Planning and Development Dept Head: Hal H. Hart, A.f. C.P. W Prosecutor. Karen Frakes 0 Purchasing /Budget: Executive: Peter Kremer SUBJECT.- Ordinance to change the Official Whatcom County Zoning Text, amending Chapter 20.38, the Agricultural Protection Overlay District. ATTACHMENTS: (1) Proposed Ordinance (2) Agency Report with Attached Text (3) Staff Report Planning Commission Minutes SEPA review required? ( x ) Yes ( ) NO SEPA review completed? ( x ) Yes ( ) NO Should Clerk schedule a hearing? ( ) Yes ( sit ) NO Requested Date: I The Council must hold a hearing if they want to change the Planning Commission's recommendation (WCC20.90.051). SU,NMAR Y STA TEME.NT: The request is to amend the Official Zoning Text, Chapter 20.38 (WCC), Agriculture Overlay District, which would add a new paragraph (4) to section 20.38.050, Applicability. This addition would allow for exemption to the provisions of Chapter 20.38 if previous development of over 50% of the site effectively prevents the use of the site for agricultural purposes. Distribution Request Indicate those who should receive a copy moo Council action List specific names to the right ADS Facilities Management qus P ;name q, Hum an Resources ADS h( Services Assessor Auditor Cooperative Fxonnsion District Court Executive Health Hearing Examiner Jail COUNCIL ACTION TAKEN: 2002 -361 1018102. Introduced 1012212002. Adopoted 7 -0, Ord. #2002 -080 Relm. Related File Numbers: (File #ZON2002- 00001, Amend Ag Overlay 20.38.050). Juvenile Parks Planning Hal H. Hart, A.LCP. Prosecutor Public Works Sheriff Superior Court Treasurer &her Ordinance or Resolutio Number (this item): D ���� SPONSORED BY: PDs PROPOSED BY: PDS INTRODUCTION DATE: 10/8/02 ORDINANCE NO. 2002 -060 AMENDING THE OFFICIAL WHATCOM COUNTY ZONING ORDINANCE, TITLE 20, TO ADD NEW TEXT TO THE AGRICULTURAL PROTECTION OVERLAY (APO) DISTRICT, CHAPTER 20.38, TO ALLOW AN ADDITIONAL EXEMPTION TO THE APO REQUIREMENTS. WHEREAS, Pursuant to W CC 20.90, proposed zoning text amendments shall be considered and WHEREAS, A determination of non - significance was issued under the State Environmental Policy Act (SEPA) on June 25, 2002; and WHEREAS, Pursuant to RCW 36.70.390, legal notice was published in the Bellingham Herald on, July 25, 2002; and WHEREAS, The Planning Commission held a public hearing on the proposed amendments on Thursday, August 8, 2002, and considered all testimony; and WHEREAS, The Planning Commission recommended approval of the proposed text amendment on August 8, 2002. WHEREAS, the Council considered the proposal as recommended by the Planning Commission at a regularly scheduled meeting; and WHEREAS, the Council found the amendments to be in the best interest of the public health, safety, and welfare; and WHEREAS, the Council has adopted the following Findings and Conclusions: FINDINGS 1. Notice of the Planning Commission hearing for the subject amendment was published in the Bellingham Herald July 25", 2002. 2. The Planning Commission held a public hearing on the subject amendment on August 81h, 2002. 3. A determination of non - significance under the State Environmental Policy Act (SEPA) was made on June 25`h, 2002, prior to review of the amendment by the Planning Commission. 4. Whatcom County adopted the original Agricultural Protection Overlay (APO) regulations I: \2 Planning Division¢oning Amendments oning 2002\ZON2002 -00001 ORD.doc - 1 - on May 20,1997. The APO only applies to parcels 20 acres or larger in the Rural 5 and 10 acre zones. 5. The County's APO regulations were revised on April 17, 2001 to strengthen the protection and preservation of the agricultural potential of lands in the Rural zone district that are capable of supporting an agricultural use either now or in the foreseeable future. 6. This text amendment application of Shuksan Investments LLC has brought to the County's attention that properties of 20 acres or larger in size subject to APO regulation have been irretrievably committed to a non - agricultural use. Where such circumstances occur, the application of the APO requirements to these properties can result in a burden on the property with no tangible benefit to the public. 7. As a result, Staff finds that there is a need to evaluate the current use of property to determine whether that use effectively removes the property from consideration for future agricultural use, regardless of soil characteristics and its historic tax status. 8. A threshold standard for determining whether a property is no longer suitable for agricultural use for now and for the future is difficult to define. The applicant has suggested a threshold standard that fifty percent or more of the 20 -acre or larger site would need to be irretrievably committed to a non - agricultural use for the property to qualify. Staff's evaluation of the threshold area figure finds that a value of fifty percent or more is reasonable. If this percentage value were applied to the minimum parcel size of 20 acres to which the APO would apply, it would mean that 10 or more acres of the site would have to be irretrievably lost to agricultural production. Although the remaining ten or fewer acres might conceivably have the potential for agricultural use it would be below the 20 acre minimum parcel size under the APO. It does not seem reasonable that if a person owns a 20 acre parcel of land, 10 acres of which is developed with a mini - storage facility that the remaining acreage should be subject to the APO when his neighbors property that may be 19 acres in size and meets all the other APO criteria except for size is not subject to the APO. For this reason, we believe that the fifty - percent or greater requirement is a reasonable figure. Applying this percentage to larger parcels results in a similar finding. At a threshold of fifty percent for very large parcels, for example 40 acres in size or greater, the amount of land that would have to have been irretrievably committed to a non - agricultural use for the proposed amendment to apply would be large, at least 20 acres in size. With the exception of a use such as a golf course few land uses that would qualify. 9. In addition to the percentage amount of land that would need to be irretrievably committed to a non - agricultural use, there remains the issue of what constitutes an irretrievable commitment of land to a non - agricultural use. The standard proposed by the applicant is that "the use would affect fifty percent or more of the parcel in a manner that effectively prevents that fifty percent or more from being used for agricultural purposes both for now and in the foreseeable future." Determining whether the land use or activity being conducted on a particular property effectively prevents that property from being used for agricultural purpose both now and for the future may be difficult in some instances. However, staff expects that in the majority of the cases, a rationale determination can be made based on both the I9 Planning Division¢cning AnnendmentslZOning 20022ON2002 -00001 ORO.doc -2- economic and physical characteristics of the use. For example, If the extent and nature of improvements made to the property are such that no agricultural use could be made of the property without removing the improvements and if the cost of removing the improvements or otherwise making the land suitable for agricultural production exceeds the value of the land for agricultural use then it is reasonable to conclude that the land is no longer available to be used for agriculture, i.e. growing crops. 10. The proposed amendment specifically excludes forestland and woodlands from being considered as a non - agricultural that renders the property unusable for agriculture. Staff concurs with this provision. 11. Staff finds that the only affect of the amendment on property in the rural zone would be to remove the APO from parcels no longer suitable for agriculture and therefore no longer part of the county's agricultural land base. The amendment would not affect permitted densities, types of uses nor prevent cluster subdivisions on property removed as a result of the amendment. 12. The APO only applies to parcels 20 acres or larger in the Rural 5 and 10 acre zones, The proposed amendment would not affect this threshold. 13. Staff has identified labeling errors in the adopted APO Soils list. Soil Names appear correctly, however, the number for Everson Silt Loam - Drained - 0 to 2% slopes, should be listed as #53 but is now listed as #46. Fishtrap Muck - Drained -0 to 2% slopes, is listed as #53 and should be listed as #54. Corrections are made to the list as included in Exhibit 1. CONCLUSIONS The proposed amendment by Shuksan Investments LLC does not conflict with the planning goals of the Growth Management Act (RCW 36.70A.020). 2. The subject amendment is consistent with the Whatcom County Comprehensive Plan. The amendment has been narrowly tailored to filter out land with no current or future agricultural resource potential without compromising the purpose and intent of the county's Agricultural Protection Overlay regulations. NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that: Section 1. The Official Whatcom County Zoning Code is hereby amended as shown in Exhibit 1. 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. 1'. \2 Planning Divisionponing A endnnenls\Zoning 2002\Z0N2002 -00001 ORD.doc 3- ADOPTED this 22 day of October 2002. ATTEST: 7 Dana Brown- Davis, Clerk of the Council APPR VIED as to form aren Frakes, Civil Deputy Prosecutor WHATCOM COUNTY COUNCIL WHATCOM COUNTY. WASHINGTON L. WI and Nelson, Cou cil Chair (, pproved_. O Denied Pete Kremen, Executive Dater .� Planning Divisions oning Amendments2oning 2002120N2002 -00001 ORD.doc -4- EXHIBIT 1 AGRICULTURE PROTECTION OVERLAY Sections: 20.38.010 Purpose. 20.38.020 Permitted Uses. 20.38.030 Density. 20.38.040 Definitions. 20.38.050 Applicability. 20.38.060 Development and use standards checklist. 20.38.080 Repealed. 20.38.010 Purpose. The purpose of this section is to maintain and enhance commercial agricultural activity and further protect open space resources within Whatcom County; further the county's efforts in meeting long term agricultural needs; provide a reasonable mix of uses and activities which may enhance the economic resources available to the farmer; and provide for a variety of uses within the rural areas which are not inconsistent with or incompatible with the use of lands within the area for agricultural activities. This section is not intended to interfere with the use of other resources. (Ord. 2001 -016, 2001; 98- 083 Exh. A § 45, 1998). 20.38.020 Permitted uses. (1) All uses permitted in the Agriculture zone, Chapter 20.40 WCC. (2) All other uses permitted directly or by administrative or conditional uses in Chapter 20.36 WCC but only on lands and under the conditions provided below. (Ord. 2001- 016, 2001; 98 -083 Exh. A § 45, 1998). 20.38.030 Density. Maximum density shall be the same as in the underlying R -5A or R -10A zone district (Chapter 20.36 WCC). (Ord. 2001 -016, 2001; 98 -083 Exh. A § 45, 1998). 20.38.040 Definitions. For the purposes of the agricultural protection overlay zone: (1) a "parcel' is defined as a legal lot of record (WCC 20.83.060) or, if consolidation has taken place pursuant to WCC 20.83.070, the entire area of the consolidated lots. If a parcel is bisected by a public right -of -way, or a river, a pond, or a lake as defined in the critical areas ordinance, and the resultant area is less than 20 acres, the provisions of this chapter do not apply to that portion. (2) Agricultural Protection Overlay soils are those soils determined by Whatcom County, in consultation with the Natural Resource Conservation Service and local farmers, as being the best soils for farming. Each soil type named in the list below also has a number. This number is used in the Soil Survey of Whatcom County Area, May 1992, to identify the mapping unit (soil type) in all text, maps and tables contained in the soil survey. A2 Planning Divaan�oning Amendmenizzoning 2002 0142002 -00001 ORD.doc - 1 - AGRICULTURE PROTECTION OVERLAY SOILS No. Name 12 Birchbay Silt Loam — 0 to 3% slopes 13 Birchbay Silt Loam — 3 to 8% slopes 22 Briscot Silt Loam — Drained 0 to 2% slopes 31 Clipper Silt Loam — Drained 0 -2% slopes 45 Edmonds - Woodlyn Loams- Drained — 0 to 2% slopes 4653 Everson Silt Loam - Drained — 0 to 2% slopes 5354 Fishtrap Muck - Drained — 0 to 2% slopes 62 Hale Silt Loam - Drained — 0 to 2% slopes 79 Kickerville Silt Loam — 0 to 3% slopes 80 Kickerville Silt Loam — 3 to 8% slopes 95 Larush Silt Loam — 0 to 3% slopes 96 Laxton Loam — 0 to 3% slopes 97 Laxton Loam — 3 to 8% slopes 99 Lynden Sandy Loam 0 to 3% slopes 100 Lynden Sandy Loam 3 to 7% slopes 107 Mt. Vernon Fine Sandy Loam 0 to 2% slopes 115 Oridia Silt Loam - Drained — 0 to 2% slopes 116 Pangborn Muck - Drained — 0 to 2% slopes 123 Puget Silt Loam - Drained —0 to 2% slopes 124 Puyallup Find Sandy Loam — 0 to 2% slopes 139 Sehome Loam — 2 to 8% slopes 143 Shalcar Muck - Drained — 0 to 2% slopes 148 Skipopa Silt Loam — 0 to 8% slopes 151 Snohomish Silt Loam - Drained — 0 to 2% slopes 162 Sumas Silt Loam - Drained — 0 to 2% slopes 165 Tromp Loam — 0 to 2% slopes 178 W hatcom Silt Loam — 0 to 3% slopes 179 Whatcom Silt Loam — 3 to 8% slopes 184 Whitehorn Silt Loam — 0 to 2% slopes 186 Winston Silt Loam — 0 to 3% slopes 191 Yelm Loam — 3 to 8% slopes 20.38.050 Applicability The provisions in this section apply to all rural lands designated R -5A or R -10A on the official zoning map, (a) outside designated urban growth area boundaries, and (b) held in parcels of 20 acres or larger, including nominal 20 acre parcels. The following parcels are exempt from the cluster subdivision requirements. (1) Divisions of land into parcels of 40 acres or larger. (2) A parcel satisfying both of the following criteria: (a) The parcel includes less than 50% Agricultural Protection Overlay Soils (detailed site specific soil mapping provided by a certified professional soil scientist may be substituted for the USDA Soil Survey of W hatcom County mapping, if it can be 192 Planning Division cning Amendnnents�oning 20022ON2002 -00001 ORD.doc WM shown to be more accurate); and (b) Less than 50% of the parcel has been designated as agricultural open space for County property tax purposes within the past seven years. (3) A parcel with land designated agriculture or forest in the comprehensive plan located on less than 25% of the parcel perimeter, and surrounded on 75% or more of the parcel perimeter by any of the following: (a) More intensive zoning districts, including residential, commercial, light industrial, and heavy industrial districts; or (b) Existing development patterns with residential densities greater than 1 unit per 2 acres; or (c) More intensive uses such as but not limited to: schools, churches, rest homes and other commercial uses. (4) A parcel occupied by a use legally established prior to May 20.1997 where the use affects fifty percent or more of the area of the parcel in a manner that effectively use. 20.38.060 Development and use standards checklist. Subdivisions or segregations for nonagricultural uses shall be clustered. Development on all parcels subject to this section shall follow the requirements below: (1) The clustered, residential lot(s) shall not exceed 25 percent of the gross acreage of the original parent parcel, regardless of the number of separate subdivision events, and (2) Shall not interfere with the resource productivity and agricultural use of the agricultural reserve tract, and (3) If the parent parcel contains an area that is non - agricultural or lower class soils, and if this area is large enough to contain or partially contain the clustered residential lots then the clustered residential lots shall be located on this lower class soil unless restricted by physical constraints or unless the placement of said lots would be contrary to section (2) above. (4) Minimum lot size shall comply with WCC 20.36.253, unless a larger lot is required as determined by the requirements of the Bellingham - Whatcom County Sanitary Code for on -site septic disposal; provided, however, separate drainfield tracts and common drainfields shall be allowed consistent with the sanitary code. Drainfields serving the cluster development may be located within the required building setback, but not within the reserve tract, and (5) In order to preserve rural character, no more than 16 residential lots shall be permitted in one cluster and there shall be at least 500 feet of separation between any new clusters, and (6) All wells for potable water within the cluster subdivision shall be kept a minimum of 100 feet from the property line of an existing farm or any parcel or portion thereof which is designated as the agricultural reserve tract and, 192 Planning Division2oning Amendments oning 20=ON2002 -00001 ORD.doc -3- (7) Any structure which will be used for human habitation shall be set back a minimum of 100 feet from the property line of any parcel or portion thereof which is designated or used for agricultural purposes. No structures shall be constructed within 30 feet of exterior, side and rear property lines, and no structure shall be constructed within 30 feet of an agricultural use, and (8) The 25 percent of a parcel available for development may be contiguous or in separate clusters so long as the requirements of this section are met, and (9) At the time of the initial development of a parcel under this section the entire parcel shall be included within the plat or tract map recorded, including the clustered residential parcel or parcels, and the reserve tract. Modifications to the plat or tract map shall be made in accordance with state law and county codes and ordinances, and shall be permitted, so long as the provisions of this section are met as applied to the original parcel, and (10) A statement that the property is subject to the Agricultural Protection Overlay (WCC 20.38) shall be recorded on the face of the tract map, or short plat, and (11) For purpose of determining additional development density should a rezone take place, the original (pre- subdivided) parent parcel acreage must be included in the total acreage calculation and the original development density shall be subtracted from the increased total development density assigned to the original parent parcel, to obtain remaining density. (Ord. 2001 -16, 2001; 98- 083 Exh. A § 45, 1998). 112 Planning Division oning Amendments2uning 2002ZON2002 -00001 ORD.doc M WHATCOM COUNTY PLANNING COMMISSION FINDINGS OF FACT, REASONS FOR ACTION & RECOMMENDATIONS AMENDING THE OFFICIAL WHATCOM COUNTY ZONING ORDINANCE, TITLE 20, TO ADD NEW TEXT TO THE AGRICULTURAL PROTECTION OVERLAY (APO) DISTRICT, CHAPTER 20.38, TO ALLOW AN ADDITIONAL EXEMPTION TO THE APO REQUIREMENTS. WHEREAS, Pursuant to WCC 20.90, proposed zoning text amendments shall be considered ; and WHEREAS, A determination of non - significance was issued under the State Environmental Policy Act (SEPA) on June 25, 2002; and WHEREAS, Pursuant to RCW 36.70.390, legal notice was published in the Bellingham Herald on, July 25, 2002; and WHEREAS, The Planning Commission held a public hearing on the proposed amendments on Thursday, August 8, 2002, and considered all testimony; and WHEREAS, The Planning Commission recommended approval of the proposed text amendment on August 8, 2002. NOW THEREFORE BE IT RESOLVED: THE PLANNING COMMISSION ENTERS THE FOLLOWING FINDINGS OF FACT, REASONS FOR ACTION AND RECOMMENDATION: I. FINDINGS OF FACT AND REASONS FOR ACTION Notice of the Planning Commission hearing for the subject amendment was published in the Bellingham Herald July 25'", 2002. 2. The Planning Commission held a public hearing on the subject amendment on August W', 2002. 3. A determination of non - significance under the State Environmental Policy Act (SEPA) was made on June 25'", 2002, prior to review of the amendment by the Planning Commission. 4. Whatcom County adopted the original Agricultural Protection Overlay (APO) regulations on May 20,1997. The APO only applies to parcels 20 acres or larger in the Rural 5 and 10 acre zones. 5. The County's APO regulations were revised on April 17, 2001 to strengthen the protection and preservation of the agricultural potential of lands in the Rural zone district that are capable of supporting an agricultural use either now or in the foreseeable future. 6. This text amendment application of Shuksan Investments LLC has brought to the County's attention that properties of 20 acres or larger in size subject to APO regulation have been Irretrievably committed to a non - agricultural use. Where such circumstances occur, the application of the APO requirements to these properties can result in a burden on the property with no tangible benefit to the public. As a result, Staff finds that there is a need to evaluate the current use of property to determine whether that use effectively removes the property from consideration for future agricultural use, regardless of soil characteristics and its historic tax status. 8. A threshold standard for determining whether a property is no longer suitable for agricultural use for now and for the future is difficult to define. The applicant has suggested a threshold standard that fifty percent or more of the 20 -acre or larger site would need to be irretrievably committed to a non - agricultural use for the property to qualify. Staff's evaluation of the threshold area figure finds that a value of fifty percent or more is reasonable. If this percentage value were applied to the minimum parcel size of 20 acres to which the APO would apply, it would mean that 10 or more acres of the site would have to be irretrievably lost to agricultural production. Although the remaining ten or fewer acres might conceivably have the potential for agricultural use it would be below the 20 acre minimum parcel size under the APO. It does not seem reasonable that if a person owns a 20 acre parcel of land, 10 acres of which is developed with a mini - storage facility that the remaining acreage should be subject to the APO when his neighbors property that may be 19 acres in size and meets all the other APO criteria except for size is not subject to the APO. For this reason, we believe that the fifty- percent or greater requirement is a reasonable figure. Applying this percentage to larger parcels results in a similar finding. At a threshold of fifty percent for very large parcels, for example 40 acres in size or greater, the amount of land that would have to have been irretrievably committed to a non - agricultural use for the proposed amendment to apply would be large, at least 20 acres in size. With the exception of a use such as a golf course few land uses that would qualify. 9. In addition to the percentage amount of land that would need to be irretrievably committed to a non - agricultural use, there remains the issue of what constitutes an irretrievable commitment of land to a non - agricultural use. The standard proposed by the applicant is that "the use would affect fifty percent or more of the parcel in a manner that effectively prevents that fifty percent or more from being used for agricultural purposes both for now and in the foreseeable future" Determining whether the land use or activity being conducted on a particular property effectively prevents that property from being used for agricultural purpose both now and for the future may be difficult in some instances. However, staff expects that in the majority of the cases, a rationale determination can be made based on both the economic and physical characteristics of the use. For example, If the extent and nature of improvements made to the property are such that no agricultural use could be made of the property without removing the improvements and if the cost of removing the improvements or otherwise making the land suitable for agricultural production exceeds the value of the land for agricultural use then it is reasonable to conclude that the land is no longer available to be used for agriculture, i.e. growing crops. 10. The proposed amendment specifically excludes forestland and woodlands from being considered as a non - agricultural that renders the property unusable for agriculture. Staff concurs with this provision. 11. Staff finds that the only affect of the amendment on property in the rural zone would be to remove the APO from parcels no longer suitable for agriculture and therefore no longer part of the county's agricultural land base. The amendment would not affect permitted densities, types of uses nor prevent cluster subdivisions on property removed as a result of the amendment. 12. The APO only applies to parcels 20 acres or larger in the Rural 5 and 10 acre zones, The proposed amendment would not affect this threshold. 13. Staff has identified labeling errors in the adopted APO Soils list. Soil Names appear correctly, however, the number for Everson Silt Loam - Drained - 0 to 2% slopes, should be listed as #53 but is now listed as #46. Fishtrap Muck - Drained -0 to 2% slopes, is listed as #53 and should be listed as #54. Corrections are made to the list as included in Exhibit 1. II. CONCLUSION AND RECOMMENDATION 1. The proposed amendment by Shuksan Investments LLC does not conflict with the planning goals of the Growth Management Act (RCW 36.70A.020). 2. The subject amendment is consistent with the Whalcom County Comprehensive Plan. 3. The amendment has been narrowly tailored to filter out land with no current or future agricultural resource potential without compromising the purpose and intent of the county's Agricultural Protection Overlay regulations. Based upon the above findings and conclusions, the Planning Commission recommends that the County Council approve the proposed amendment as included in Exhibit 1. WHATCOM COUNTY PLANNING COMMISSION � r / r o san, Chairperson H . H ,Secret Date ' ate Vote taken August 8. 2002 at a regularly scheduled Planning Commission meeting. Commissioners voting: ROBERT WIESEN, DAVE PROS, RON ROOSMA, JOHN STEENSMA, AND AL SCHREIBER. Ayes: 5 Nays: 0 , Motion carried to adopt the above Findings of Fact and Reasons for Action and Recommendations. Attachments: EXHIBIT 1: Proposed Chapter 20.38 — Agricultural Overlay Protection District (APO Overlay) text. W4 0M tffi AGRICULTURE PROTECTION OVERLAY Sections: 20.38.010 Purpose. 20.38.020 Permitted Uses. 20.38.030 Density. 20.38.040 Definitions. 20.38.050 Applicability. 20.38.060 Development and use standards checklist. 20.38.080 Repealed. 20.38.010 Purpose. The purpose of this section is to maintain and enhance commercial agricultural activity and further protect open space resources within Whatcom County; further the county's efforts in meeting long term agricultural needs; provide a reasonable mix of uses and activities which may enhance the economic resources available to the farmer; and provide for a variety of uses within the rural areas which are not inconsistent with or incompatible with the use of lands within the area for agricultural activities. This section is not intended to interfere with the use of other resources. (Ord. 2001 -016, 2001; 98- 083 Exh. A § 45, 1998). 20.38.020 Permitted uses. (1) All uses permitted in the Agriculture zone, Chapter 20.40 WCC. (2) All other uses permitted directly or by administrative or conditional uses in Chapter 20.36 WCC but only on lands and under the conditions provided below. (Ord. 2001 -016, 2001; 98 -083 Exh. A § 45, 1998). 20.38.030 Density. Maximum density shall be the same as in the underlying R -5A or R-1 OA zone district (Chapter 20.36 WCC). (Ord. 2001 -016, 2001; 98 -083 Exh. A § 45, 1998). 20.38.040 Definitions. For the purposes of the agricultural protection overlay zone: (1) a "parcel' is defined as a legal lot of record (WCC 20.83.060) or, if consolidation has taken place pursuant to WCC 20.83.070, the entire area of the consolidated lots. If a parcel is bisected by a public right -of -way, or a river, a pond, or a lake as defined in the critical areas ordinance, and the resultant area is less than 20 acres, the provisions of this chapter do not apply to that portion. (2) Agricultural Protection Overlay soils are those soils determined by Whatcom County, in consultation with the Natural Resource Conservation Service and local farmers, as being the best soils for farming. Each soil type named in the list below also has a number. This number is used in the Soil Survey of Whatcom County Area, May 1992, to identify the mapping unit (soil type) in all text, maps and tables contained in the soil survey. AGRICULTURE PROTECTION OVERLAY SOILS No. Name 12 Birchbay Silt Loam — 0 to 3% slopes 13 Birchbay Silt Loam — 3 to 8% slopes 22 Briscot Silt Loam — Drained 0 to 2% slopes 31 Clipper Silt Loam — Drained 0 -2% slopes 45 Edmonds - Woodlyn Loams- Drained — 0 to 2% slopes 4653 Everson Silt Loam - Drained — 0 to 2% slopes 5354 Fishtrap Muck - Drained — 0 to 2% slopes 62 Hale Silt Loam - Drained — 0 to 2% slopes 79 Kickerville Silt Loam — 0 to 3% slopes 80 Kickerville Silt Loam — 3 to 8% slopes 95 Larush Silt Loam — 0 to 3% slopes 96 Laxton Loam — 0 to 3% slopes 97 Laxton Loam — 3 to 8% slopes 99 Lynden Sandy Loam 0 to 3% slopes 100 Lynden Sandy Loam 3 to 7% slopes 107 Mt. Vernon Fine Sandy Loam 0 to 2% slopes 115 Oridia Silt Loam- Drained — 0 to 2% slopes 116 Pangborn Muck - Drained — 0 to 2% slopes 123 Puget Silt Loam - Drained —0 to 2% slopes 124 Puyallup Find Sandy Loam — 0 to 2% slopes 139 Sehome Loam — 2 to 8% slopes 143 Shalcar Muck - Drained — 0 to 2% slopes 148 Skipopa Silt Loam — 0 to 8% slopes 151 Snohomish Silt Loam - Drained — 0 to 2% slopes 162 Sumas Silt Loam - Drained — 0 to 2% slopes 165 Tromp Loam — 0 to 2% slopes 178 Whatcom Silt Loam — 0 to 3% slopes 179 Whatcom Silt Loam — 3 to 8% slopes 184 Whitehorn Silt Loam — 0 to 2% slopes 186 Winston Silt Loam — 0 to 3% slopes 191 Yelm Loam — 3 to 8% slopes 20.38.050 Applicability The provisions in this section apply to all rural lands designated R -5A or R-1 OA on the official zoning map, (a) outside designated urban growth area boundaries, and (b) held in parcels of 20 acres or larger, including nominal 20 acre parcels. The following parcels are exempt from the cluster subdivision requirements_ (1) Divisions of land into parcels of 40 acres or larger. (2) A parcel satisfying both of the following criteria: (a) The parcel includes less than 50% Agricultural Protection Overlay Soils (detailed site specific soil mapping provided by a certified professional soil scientist may be substituted for the USDA Soil Survey of Whatcom County mapping, if it can be shown to be more accurate); and (b) Less than 50% of the parcel has been designated as agricultural open space for County property tax purposes within the past seven years. (3) A parcel with land designated agriculture or forest in the comprehensive plan located on less than 25% of the parcel perimeter, and surrounded on 75% or more of the parcel perimeter by any of the following: (a) More intensive zoning districts, including residential, commercial, light industrial, and heavy industrial districts; or (b) Existing development patterns with residential densities greater than 1 unit per 2 acres; or (c) More intensive uses such as but not limited to: schools, churches, rest homes and other commercial uses. now and in the foreseeable future. For the purposes of this section, the presence of forestlands and woodlands shall not be construed as a use or condition preventing the use. 20.38.060 Development and use standards checklist. Subdivisions or segregations for nonagricultural uses shall be clustered. Development on all parcels subject to this section shall follow the requirements below: (1) The clustered, residential lot(s) shall not exceed 25 percent of the gross acreage of the original parent parcel, regardless of the number of separate subdivision events, and (2) Shall not interfere with the resource productivity and agricultural use of the agricultural reserve tract, and (3) If the parent parcel contains an area that is non - agricultural or lower class soils, and if this area is large enough to contain or partially contain the clustered residential lots then the clustered residential lots shall be located on this lower class soil unless restricted by physical constraints or unless the placement of said lots would be contrary to section (2) above. (4) Minimum lot size shall comply with WCC 20.36.253, unless a larger lot is required as determined by the requirements of the Bell ingham-Whatcom County Sanitary Code for on -site septic disposal; provided, however, separate drainfield tracts and common drainfields shall be allowed consistent with the sanitary code. Drainfields serving the cluster development may be located within the required building setback, but not within the reserve tract, and (5) In order to preserve rural character, no more than 16 residential lots shall be permitted in one cluster and there shall be at least 500 feet of separation between any new clusters, and (6) All wells for potable water within the cluster subdivision shall be kept a minimum of 100 feet from the property line of an existing farm or any parcel or portion thereof which is designated as the agricultural reserve tract and, (7) Any structure which will be used for human habitation shall be set back a minimum of 100 feet from the property line of any parcel or portion thereof which is designated or 3 used for agricultural purposes. No structures shall be constructed within 30 feet of exterior, side and rear property lines, and no structure shall be constructed within 30 feet of an agricultural use, and (8) The 25 percent of a parcel available for development may be contiguous or in separate clusters so long as the requirements of this section are met, and (9) At the time of the initial development of a parcel under this section the entire parcel shall be included within the plat or tract map recorded, including the clustered residential parcel or parcels, and the reserve tract. Modifications to the plat or tract map shall be made in accordance with state law and county codes and ordinances, and shall be permitted, so long as the provisions of this section are met as applied to the original parcel, and (10) A statement that the property is subject to the Agricultural Protection Overlay (WCC 20.38) shall be recorded on the face of the tract map, or short plat, and (11) For purpose of determining additional development density should a rezone take place, the original (pre- subdivided) parent parcel acreage must be included in the total acreage calculation and the original development density shall be subtracted from the increased total development density assigned to the original parent parcel, to obtain remaining density. (Ord. 2001 -16, 2001; 98- 083 Exh. A § 45, 1998).