HomeMy WebLinkAboutord1996-013WHATCOM COUNTY COUNCIL.AGENDA BILL
NO. 96 -0743_ +
CLEARANCES
Initia
Date
Date Received in Council Office:
Agenda date
Assigned to:
)rlginator: Terry Galvin
02 -1496
1; V E
��gg��99ttjj
t 177q l
ut►r�1A OM COUNTY
N ll r l I �._ ' I �
2/20/96
Council Introduction
Division Head: Vickie Hardin Woods
02 -1496
lan & Devel . Council
Dept. Head: Nate Brown
i
02 -1496
Prosecutor:Karen Frakes
2
Purchasing/Budget:
Executive: Pete Kremen
SUBJECT. An Ordinance Amending Land Clearing Regulations in Title 20, The Official Whatcom County Zoning
Ordinance
ATTACHMENTS: Letter from TAC to Council Chair Nelson
Staff Memo
Proposed Ordinance
Draft Whatcom County Development Standards, Chapter 3 - Land Clearing
Agency Report with attached Staff Report (see AB 95 -309)
Draft Planning Commission Minutes (see AB 95 -309)
SUMMARY STATEMENT.
Amount budeeted for this
Pudget line item number(s): n/a
Please complete sections of box as appropriate & explain the item below.
Clerk schedule a hearing? NO /X/ YES / / Requested date:
Is it (or will it be.) within budget? YES / / NO / / (Please explain below
_� request has been made by Staff to replace Ordinances #89 -1 -29 (six year moratorium), #90 -24 (Forested Land
Clearing), and #90 -58 (Erosion and Sedimentation Control. in Critical Watersheds) with an amendment to Title 20,
Chapter 20.80.730 that creates regulatory language establishing conditions under which clearing activity can _take
place in Whatcom County.
The Planning Commission unanimously supported the regulations, including designating Lake Whatcom and Drayton
Harbor Watersheds as Special Districts. At .a public hearing on July 18, 1996, the County Council referred the
proposal to the Technical Advisory Committee (TAC) for technical review (and the creation of development
standards and administrative procedures related to the clearing regulations).
The TAC completed its review over the last six months and unanimously supported the Planning Commission's
recommendation with some amendments. These amendments are shown in the text of the ordinance before the
Council. The net effect of these regulatory changes is greater simplicity and greater flexibility for the landowner.
ORIGINATOR'S RECOMMENDED ACTION. The Director of Planning and Development Services recommends
Council adopt the ordinance, with the exception of the changes proposed- by the TAC to special districts. The
changes to special districts are clearly a violation of Council direction in both the Lake Whatcom and Drayton Harbor
watersheds. The original special district. language implements this direction and should be retained.
COMMITTEE ACTION TAKEN.
COUNCIL ACTION TAKEN.
1996 -74-
2/20/96:_ Introduced
3/5/96: Held in Committee until 3/19/96
3/19/96: Scheduled for work session 3/26/96 at 1:00 p.m.
4/2/96: Amended and Approved 6 - 0, Starkenburg abstained
;e or Resolution - Number (this item only):
Ord. 96 -013
..
PAO-�--
1
.ord 96-13, Land clearing SPONSORED BY: Consent
PROPOSED BY: Council
INTRODUCTION DATE: February 20, 1996
ORDINANCE NO. 96 -013
AN ORDINANCE AMENDING LAND CLEARING REGULATIONS IN TITLE 20, THE OFFICIAL
WHATCOM COUNTY ZONING CODE
WHEREAS,, al request has been made.to replace Ordinances #89 -129 (six year
moratorium), #90 -24 (Forested Land Clearing), and #90 -58 (Erosion and Sedimentation
Control in Critical Watersheds) with an amendment to Title 20, Chapter 20.80.730 that
creates regulatory language establishing conditions under which clearing activity can take
place in Whatcom County;
WHEREAS, the County Council directed staff to prepare uniform and comprehensive
management practices for clearing activity; and
WHEREAS, pursuant to RCW 36.70.590 legal notice was published in the Bellinahahi
Herald on Thursday, March 30, 1995; and
WHEREAS, a Determination of Non - significance was issued by the responsible Deputy
SEPA Official on April 12, 1995; and
WHEREAS, the Planning Commission held a public hearing on April 12, 1995; and
WHEREAS, the Planning Commission held a work session on June 22, 1995, and after
due consideration of public testimony, made amendments to the proposal, and
unanimously recommended Council approval; and
WHEREAS, Council held a public meeting on July 18, 1995, and considered public
testimony to the proposed draft regulatory language establishing conditions for clearing
activity in Whatcom County; and
WHEREAS, Council held a work session on August 1, 1995, and after due
consideration acknowledged that the proposed draft regulatory language is an
improvement to the fragmented and conflicting clearing regulations that currently exist and
also provides the necessary regulatory authority for the development of a clearing chapter
to be the second installment of a complete revision and update of the 1984 Development
Standards; and
WHEREAS, Council directed staff to prepare a resolution requesting the Whatcom
County Development Standards Technical Advisory Committee (TAC) review land clearing
regulations and create corresponding development standards for Council review; and
WHEREAS, the TAC has completed its review of the regulations and corresponding
development standards and submitted both to the Council for approval of the regulations,
Page 1
along with a recommendation to forward the clearing standards, to the County Executive
for administrative approval; and
WHEREAS, pursuant to RCW 36.70.590 legal notice was published in the Bellingham
Herald on Saturday, February 24, 1996; and
WHEREAS, the Council held a public hearing on March 5 to consider this matter and
accepted the TAC's assessment that the draft standards are consistent with the
ordinance; and
WHEREAS, the Council found the amendments in the best interest of the public health,
safety, and welfare; and
WHEREAS, the Council has adopted the following Findings and Conclusions:
FINDINGS
1. In 1990, a Forested Land Clearing Ordinance ( #90 -24) and an Interim Erosion and
Sedimentation Ordinance ( #90 -58) was approved by Council as temporary measures._
until a permanent update of the Whatcom County Development Standards was
concluded.
3. On April 24, 1990, the County Council passed Resolution #90 -36, to form a Technical
Advisory Committee to Review, Evaluate, and Revise the 1984 edition of the Whatcom
County Development and Subdivision Standards.
4. On March 30, 1993, a new effort was initiated by Nate Brown, the Director of
Planning and Development Services Department, who proposed a new approach to
revive the Development Standards revision effort.
5. Currently there is no uniform and comprehensive management practices for clearing
activity identified in the regulatory texts of Whatcom County.
6. The purpose of this ordinance is to ensure that clearing activity is done in a responsible
manner by providing a reasonable standard for land clearing in Whatcom County. It is
also the purpose of this ordinance to establish a County review process for larger
clearing projects to ensure that these standards are met.
7. This regulation substantially raises the threshold for County review.
8. The clearing regulations provide greater flexibility for the land owner.
9. The proposal designates Lake Whatcom and Drayton Harbor Watersheds as Special
Management Areas to establish special standards for clearing activity in these
watersheds.
Page 2
1 10. Many of the provisions of these regulations are predicated on an underlying
2 perspective that the private property owner must take more responsibility for the
3 condition of his or her property so that the County can provide less oversight.
4
5 11. The net effect of the regulatory changes is greater simplicity in administrative
6 review and more environmentally sound clearing practices in Whatcom County.
7
8 CONCLUSION
9
10
11 The regulatory language is an improvement to the fragmented and conflicting clearing
12 regulations that currently exist. They also provide the necessary regulatory authority
13 for the development of a Clearing Chapter as the second installment of a complete
14 revision and update of the 1984 Development Standards.
NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that:
Section 1. Amend Title 20, the official Whatcom County Zoning Code, as follows:
Chapter 20.80 SUPPLEMENTARY REQUIREMENTS
New Text:
730 LAND CLEARING
(1) Purpose: The purpose of -this ordinance is to avoid or minimize impacts of clearing
activity to adjacent and downstream public or private property. The regulations contained
in this section implement this goal by providing a reasonable standard for clearing land in
Whatcom County. -It is also the purpose of this ordinance to establish a County review
process for larger clearing-- projects to insure these regulations are met.
(2) Applicability: All land clearing shall be subject to -the. provisions of this section unless
specifically.exempted. No land clearing approval shall be issued by the County prior to
meeting the submittal requirements as set forth in the Whatcom County Development
Standards and only when in compliance with federal, state and local regulations, including
the Critical Areas Ordinance and the Shorelines- Management Program. Administrative
provisions and technical standards for implementing these regulations shall be contained in
the Whatcom County Development Standards.
(3) Exemptions: Any land clearing that is exclusively related to agriculture as defined in
this ordinance, forest practices other than a Class IV General, regulated under RCW 79.09,
and surface mining regulated under RCW 78.44, shall be exempt from these regulations.
(4) County Review Thresholds:
A. The County will not review vegetation maintenance activities as defined by
Whatcom County provided exposed soils do not exceed 5,000 sq. ft on 30%
Page 3
1 slopes, 1 acre in Urban Zoning Districts and 2 acres in Rural Zoning Districts.
2
3 B. The County shall require County review and approval of a land clearing activity
4 when any of the following land clearing thresholds have been reached. If land
5 clearing activity does not meet the threshold criteria, County review of the land
6 clearing is not required. However, the owner must comply with the minimum
7 requirements established in this chapter and in the Whatcom County Development
8 Standards.
i 5,000 Square Feet Threshold on 30% Slopes: The County shall review all
proposed land clearing activities that are 5,000 square feet or greater when an
accumulative area of land clearing is proposed to take place on slopes greater
than 30% in gradient.
ii One Acre Threshold in Urban Zoning Districts: The County shall
review all proposed land clearing activities that are one acre or greater when the
activities are proposed to take place in Urban zoning districts and the slope is
less than 30% in gradient.
iii Two Acre Threshold in Rural Zoning Districts: The County shall review all
proposed land clearing activities that are two acres or greater when the
activities are proposed to take place in Rural zoning districts and the slope is
less than 30% in gradient.
(5) Permit Approval Process: If County review and approval is required to clear land, the
County shall establish conditions for approval through -one of the following permits:
A. Development Permit: When land clearing is proposed as a part of a development
proposal the submittal requirements contained in the Whatcom County
Development Standards must be submitted by the permit applicant and approved by
the County as part of a development permit application prior to any clearing
activity. Under this condition, a clearing permit shall not be required.
B. Clearing Permit: A clearing permit shall be required when land clearing is the only
activity taking place and when no other development permit is required by the
County for the proposal..Under this condition, submittal requirements contained in
the Whatcom County Development Standards must be submitted with the clearing
permit application.
(6) Land Clearing Requirements:
42 A. Site Containment: Significant amounts of erosion, sediment, and other impacts
43 resulting from any land clearing activity shall be contained on the site and may
44 require temporary erosion /sedimentation control measures during and immediately
45 following clearing. All clearing activity requiring an approval must comply with the
46 requirements of this chapter and those of -the Whatcom County Development
47 Standards.
Page 4
B. Hazards: Land clearing shall not result in significant off -site physical damage nor
pose a significant danger or hazard to life or property off -site.
C. Site Specific Requirements: Additional site specific requirements may be
established after a site visit by the County. These requirements shall be based on
specific site conditions and are limited to additional temporary erosion and
sedimentation control and /or the mitigation of hazardous or potentially hazardous
conditions that pose a threat off site.
D. Slash Removal In Urban Zoning Districts: In Urban Zoning Districts slash shall be
either removed from the site, burned or chipped and spread across the site within
one year of project completion.
(7) Forest Practices and Development Restrictions
A. Purpose: The purpose of this section is to facilitate the proper management of our
forest resources while providing flexibility for the land owners who are not certain
of their future plans. The landowner should have the option to log under a DNR
Forest. Practices Permit without a County Development Permit while maintaining the
option to convert the land at a later date. It is also the purpose of this section to
allow the landowner to seek a waiver from a six year moratorium when he /she
repairs damage caused by the activity.
B. Six Year Moratorium: Any property that has been cleared .under a Class I, II, III, and
IV Special Forest Practices Permit shall not be eligible for.any development permit
for a period of six (6) years from the issuing date of the Forest Practices Permit.
Provisions shall be made by the - County to record such a condition.
C. Waiver of Six Year Moratorium: There are two con_ ditions under which a
moratorium waiver may be granted, as follows:
i A waiver may be granted by the County when a Conversion Option Harvest Plan
is signed by the applicant and approved by the County;
ii A waiver may be granted by the County Executive when the owner either brings
the site into full compliance or agrees in writing to bring the site into full
compliance with Whatcom County codes in existence at the time the FPA was
approved. Written agreement must be accompanied by an assurance of
performance.
(8) Conversion Option Harvest Plan (COHP)
A. A Conversion Option Harvest Plan shall conform to the submission requirements of
the Department of Natural Resources. -
B. A Conversion Option Harvest Plan must be reviewed and approved by the County
prior to submittal to the Department of Natural Resources in order for a moratorium
Page 5
waiver on development to be granted by the County.
C. A fee shall be established for the review of a Conversion Options Harvest Plan.
D. The Conversion Option Harvest Plan shall remain in effect until a development
permit has been approved by the County.
(9) Posting Authorization: Land clearing authorization must be posted by the permit
applicant and clearly visible at the access to the site.
(10) Assurance of Performance: The County may require financial assurance for the
proper performance and for the repair of site conditions; including but not limited to,
temporary erosion and sedimentation control facilities, vegetation restoration, and damage
repair. See 20.94.200 under General Enforcement and Penalties.
(1 1) Penalties: Violation of these requirements is punishable, pursuant to 20.94.200 of
the Whatcom County Zoning Ordinance, Title 20.
(12) Review Fees:_ Review fees will be assessed as established by the Whatcom Counter...
Unified Fee Schedule.
(13) Special Management Areas:
A. Purpose: The purpose of a Special Management Area in this chapter is to establish
a more stringent standard for clearing activity in highly valued water resource areas,
environmentally sensitive areas that exhibit clear evidence of degradation correlated
to development, or areas where natural conditions are so unstable that clearing
activity in the areas can- result in hazardous conditions.
B. Special Management Area Designation: Whatcom County shall establish the
following geographic areas as Special Management Areas:
i. Lake Whatcom Watershed
ii. Drayton Harbor Watershed
C. Special Management Area Requirements:
i. County Review Thresholds: County review and approval of a clearing activity
shall be required when any of the following thresholds have been reached:
(a) 5,000 Sauare Feet Threshold on 20% Slopes: The County will review all
proposed land clearing activities that are 5,000 square feet or greater when
an accumulative area of clearing is proposed to take place on slopes greater
than 20% in gradient.
(b) 5,000 Sauare Feet Threshold within the Jurisdiction of the Shoreline
Management Program: The County will_ review all proposed land clearing
activities that are 5,000 square feet or greater when any part of the activity
Page 6
is proposed to take place within the jurisdiction of the Whatcom County
Shorelines Management Program.
(c) 5,000 Sauare Feet Threshold. within 200 Feet of a Type One through Four
Stream: The County will review all proposed' land clearing activities that are
5,000 square feet or greater when any part of the activity is proposed to
take place 200 feet or closer to a Type 1, 2, 3, or 4 stream.
(d) 5,000 Sauare Feet Threshold within 50 Feet of a Type Five Stream: The
County will review all proposed land clearing activities that are 5,000 square
feet or greater when any part of the activity is proposed to take place 50
feet or closer to a Type 5 stream.
(e) 10,000 Sauare Feet Threshold in Urban, Zoning; Districts: The County will
review all proposed land clearing activities that are 10,000 sq.ft. or greater
when the activity is proposed to take place in urban zoning districts and the
slope is under 20% in gradient.
(f) Two Acre Threshold in Rural Zoning Districts: The County shall review afl,...
proposed land clearing activities that are two acres or greater when the
activity is proposed to take place in rural zoning districts and the slope is
less than 20% in gradient.
ii. Clearing activity must conform to the following conditions:
(a) Cover Protection: Unless otherwise approved by the County, disturbed areas
must be provided cover protection within 15 days of the time of
disturbance.
A vegetation plan-must accompany the application and be approved by
the Technical Administrator before clearing takes place. The vegetation
plan may be created and drawn to simple standards- by the permit
applicant. A vegetation plan shall have the following components:
• Identification of all areas that will be undisturbed;
• Identification of areas to be revegetated;
• The inclusion of vegetation that-contributes to soil stabilization;
• A planting schedule that indicates the time frame for re-
vegetation.
(b) Financial Assurance of Performance: The County may require financial
assurance to insure proper performance prior to clearing a site and for the
repair of degraded site conditions relating to the clearing activity when the
proposal is located in a Special Management Area.
(c) 150% Violation Fines: When a violation occurs in a area designated as a
Special Management Area within the context of this chapter, the total fine
assessment shall be increased to one hundred and fifty percent.
Page-7
Amend 20.94.010 to read:
20.94.010 Enforcement and penalties.
With the exception of violations subject to 20.94.020 and 20.94.200, violations of
this title shall constitute Class 1 civil infractions ....
Add the following to 20.94:
20.94.200 Clearing
(1) Purpose: The purpose of this section is to insure that regulations and standards relating
to land clearing activity are complied with. In doing so the intent is to penalize
intentional and repeat acts of non - compliance sufficient to reduce the number of these
illegal acts while providing opportunities for remission of penalties for the first time
offender.
(2) Offense and Penalty.
Any person who engages in or is responsible for a land clearing activity, and
A. Fails to obtain a development permit or authorization when required pursuant, to
20.80.730; or
B. Fails to .comply with any permit condition required pursuant to 20.80.730; or
C. Fails to comply with the regulatory requirements of 20.80.730;
shall be guilty of a civil offense and may be fined a sum not to exceed one thousand
dollars ($1,000.00) for the first offense. The amount fined shall be referred to as the
penalty. Criteria for administratively determining the assessed penalty shall be
established in the Whatcom County Development Standards. These Standards shall
also provide clear administrative procedure for enforcement of the provisions
established in 20.94.200:
(3) Length of Offense.
Each day, or portion thereof, of land clearing activity in conjunction with any of the
above violations shall constitute a separate offense. An offense shall begin on the
date that a notice of violation has been issued.
(4) Notice of Violation and Stop work order.
In the event any person violates any of. the provisions of-this ordinance, the County
shall issue a notice of violation to be delivered to the owner or the owner's agent, and
to be conspicuously posted at the site, and may order all work to cease until authorized
to proceed. Failure to comply with the order to stop work shall be a gross misdemeanor
punishable upon conviction by a minimum fine of five hundred dollars ($500.00) up to
a maximum fine of one thousand dollars ($1,000.00) or one (1) year in jail, or both.
Under no circumstance, may the court defer or suspend any portion of the minimum
five hundred dollar ($500.00) fine for any conviction under this section. Each day or
part thereof of noncompliance with said order to stop work shall constitute a separate
offense.
Page 8 .
(5) Notice of Penalty.
The penalty provided in Section 200 shall be imposed by a notice in writing, either by
certified mail with return receipt requested, or by personal service to the person,
incurring the same. The notice of penalty shall include the amount of the penalty
imposed and shall describe the violation with reasonable particularity in ordering the act
or acts constituting the violation or violations to cease and desist.
(6) Restoration or Mitigation.
If the land clearing activity has occurred on a site in violation of this ordinance, prompt
corrective action, restoration or mitigation of the site will be required when appropriate.
If this provision is not complied with, the County may restore or mitigate the site and
charge the responsible person for the full cost of such an activity.
(7) Penalties.
Penalties and fines shall be identified and clarified in the following manner:
A. First Offense: Any person who commits only one offense within a five year
period of time is guilty of a first offense.
B. Repeat Offense: Any person who commits an offense subsequent to a first ;'
offense shall be guilty of a repeat offense regardless of the location or the type
of offense set forth in (2)A., B., and C. above.
C. Penalty for Repeat Offenses: repeat offenses shall receive a penalty that equals
the sum of the fines for the first offense and all subsequent fines multiplied by a
number corresponding to the amount of offenses committed. Repeat offenses
will be added to this formula until a five year period passes without an offense.
(8) Remission of fines.
Within twenty (20 days after the notice is received, the person incurring the penalty
may apply in writing to the County for remission or mitigation of such penalty. Upon -
receipt of the application, the County may remit or mitigate the penalty upon whatever
terms the County in its discretion deems proper. The County's final decision on
mitigation or revision shall be reviewed by the Hearing Examiner if the aggrieved party
files a written appeal pursuant to WCC 20.84.240.
(9) Authority of Prosecuting Attorney.
The Prosecuting Attorney may enforce compliance with this ordinance by such
injunctive, declaratory, or other actions as deemed necessary to insure that violations
are prevented, ceased, or abated.
(10) Appeals.
Appeals of administrative decisions may be made pursuant to 20.84.240 Whatcom
County Code. Appeals on technical issues established in the Whatcom County
Development Standards shall be made pursuant to 12.08.035.1, Whatcom County
Code.
Page 9
ADD THE FOLLOWING DEFINITIONS TO TI"T"LE 20:
Clearing.: Destruction of vegetation by manual, mechanical, or chemical methods resulting
in exposed soils.
Clearing activity: Clearing taking place on a single parcel of record or .as part of a single
project. A clearing activity will be considered to be complete once the site has been
revegetated and stabilized.
Conversion Option Harvest Plan (COHP): A voluntary plan developed by the landowner
and approved by the County prior to submittal to the Department of Natural Resources,
indicating the limits of harvest areas, road locations, critical area buffers and open space.
The plan provides the landowner with the opportunity to log under a DNR Class II, III, or IV
Special Permit without a County Development Permit while maintaining the option to
convert the land at a later date. Under this condition, the imposition of a six year
moratorium on future development will not apply.
Development: Any activity that requires Federal, State, or local approval for the use or
modification of land or its resource. These activities include; but are not limited to,
subdivision and short subdivisions; binding site plans; planned unit developments;
variances; shoreline substantial development; clearing activity; excavation; embankment;
fill and grade work; activity conditionally allowed; building or construction; revocable
encroachment permits; and septic approval.
Drainage Ditch: An artificially created watercourse constructed to drain surface or
groundwater.
Forest Practice: Any activity conducted on or directly pertaining to forest land and' related
to growing, harvesting or processing timber (222 -16 WAC); including , but limited to: (1)
road and trail construction;_ (2) fertilization; (3) prevention and suppression of. diseases and
insects; or other activities which qualify as a use or development subject to the Forest
Practices Act.
Rural Zoning Districts: Zoning districts that allow rural, agricultural, recreation and forestry
activities and do not require sewer and /or water prior to development. These zoning
districts include; R2A, R5A, R1 OA, ROS, Agriculture, and Forestry. This definition is
intended for the purpose of regulating clearing activity only.
Stream: As defined in the Whatcom County Critical Areas regulations (WCC 16.16).
Urban Zoning Districts: Zoning districts that allow industrial and commercial activities, and
high and medium density residential densities. These zoning districts include: UR, URM,
RR, RR -I, NC, GC, TC, RC, GI, LII, GM, HII, and A0. This definition is intended for the
purpose of regulating clearing activity only.
Vegetation Maintenance: Lawn maintenance-, brush and tree pruning and other normal
land -maintenance activities involving cutting, removal or planting of vegetation by-manual,
mechanical, or chemical methods.
Page 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
16
27
Section 2. This ordinance, as adopted, or as hereafter amended, repeals Ordinances
#89 -129 (six -year moratorium), #90 -24 (Forested Land Clearing), and #90-
58 (Erosion and Sedimentation Control in Critical Watersheds).
Section 3. 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 second day of April , 1996.
WHATCOM COUNTY COUNCIL
ATTEST: WHATCOM COUNTY, WASHINGTON
Dana n- vis, r Ward Nelson, Chairperson
APPROVED as to form & content:
Karen Frakes, Civil Deputy Prosecutor
Date:
(-"Apnroved () Denied
ete Kremen, Executive
Page 11