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HomeMy WebLinkAboutord1987-0841 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 y PROPOSED BY: Planning DATE: 12/3/87 ORDINANCE NO. 87 -84 AN ORDINANCE AMENDING THE TEXT OF TITLE 20, THE OFFICIAL WHATCOM COUNTY ZONING CODE, TO XMIPT SEWAGE SLUDGE AS A CONDITIONAL USE IN THE RURAL, AGRICULTURAL, AND FORESTRY ZONES AND TO ALLOY IT AS AN ACCESSORY USE WHEN REGULATED BY A UTILIZATION PRAT ISSUED BY THE BBLLINGBAM- WHATCOM COUNTY DISTRICT DEPARTMENT OF PUBLIC HEALTH IN ACCORDANCE WITH VAC 173 -304 -300 WHEREAS, the Planning Department staff has proposed a revision to the zoning ordinance which would allow the recycling of solid wastes on land as an accessory use in the Rural, Agricultural and Forestry zones when regulated by a utilization permit in accordance with WAC 173 -304 -300 which would eliminate the present requirement for a conditional use permit; and WHEREAS, the statutory requirements for SEPA review have been satisfied; and WHEREAS, a public hearing was duly advertised and held as part of the regular Planning Commission meeting of November 10, 1987, and a subsequent special meeting was held on November 17, 1987 to deliberate the issues; and WHEREAS, based on testimony the Planning Commission modified the staff proposal to limit the proposed amendments to the utilization of sludge only; and WHEREAS, the Planning Commission recommended to the County Council that the proposed amendments as modified and which are attached hereto as Exhibit 111" be incorporated into Title 20 subject to the Bellingham- Whatcom County District Department of Public Health enacting a new utilization permit proce- dure including a public hearing process; and WHEREAS, these amendments are in keeping with the protection of the public health, safety and welfare; NOW THEREFORE BE IT RESOLVED that: 1. Title 20, the Official Whatcom County Zoning Ordinance be amended as provided in Exhibit "1" attached hereto and incorporated herein by reference. 2. This amendment will only become effective if and when the Bellingham - Whatcom County District Department of Public Health enacts new utilization permit regulations including a public hearing process before the District Health Board. PASSED this 3rd day of December 1987, WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Tom 'Burton, Chairperson ATTEST: (-T APPROVED ( ) VETOED L' Carol Ebergson, Clerk of the 061incil Shirley Van %anten, b6unty Executive APPROVED AS TO FORM: Date December 4. 1987 Dave Cottingham Civil Deputy Prosecuting Attorney Published November 25, 1987 and December 9 1987, This Ordinance becomes effective December 14 , 1987. EXHIBIT "1" RURAL DISTRICT 20.36.100 ACCESSORY USES .106 Utilization of sewage sludge on land when regulated by a utilization permit issued by the Bellingham- Whatcom County District Department of Public Health in accordance with WAC 173 -304 -300. This would apply to any land owned or leased by the same operator. 20.36.150 CONDITIONAL USES .163 Solid waste disposal facilities and sites except for sewage sludge when a utilization permit is issued by the Bellingham- Whatcom County District Department of Public Health in accordance with WAC 173 -304 -300. AGRICULTURAL DISTRICT 20.40.100 ACCESSORY USES .111 Utilization of sewage sludge on land when regulated by a utilization permit issued by the Bellingham- Whatcom County District Department of Public Health in accordance with WAC 173 -304 -300. This would apply to any land owned or leased by the same operator. 20.40.150 CONDITIONAL USES .163 Solid waste disposal facilities and sites except for sewage sludge when a utilization permit is issued by the Bell ingham-Whatcom County District Department of Public Health in accordance with WAC 173 -304 -300. FORESTRY DISTRICT 20.42.100 ACCESSORY USES .101 Utilization of sewage sludge on land when regulated by a utilization permit issued by the Bellingham- Whatcom County District Department of Public Health in accordance with WAC 173 -304 -300. This would apply to any land owned or leased by the same operator. November 18, 1987 File Ref: 10 -87:ZT YBATCO! COUM PLANT : A=CY RMRT IN THE MATTER OF AMENDING THE TEXT OF TITLE 20, ) THE OFFICIAL WHATCOM COUNTY ZONING ORDINANCE, TO ) FINDINGS, EXEMPT THE UTILIZATION OF SLUDGE ON LAND FROM THE ) REASONS, AND PRESENT STATUS OF CONDITIONAL USE AND PROHIBITED ) MOTION USE IN THE RURAL, AGRICULTURAL AND FORESTRY ZONES ) WHEN A BELLINGHAM- WHATCOM COUNTY DISTRICT DEPART- ) MENT OF PUBLIC HEALTH UTILIZATION PERMIT IS ISSUED ) IN ACCORDANCE WITH WAC 173 -304 -300 AND TO ALLOW ) IT AS AN ACCESSORY USE SUBJECT TO THE ADOPTION OF ) A NEW PERMITTING PROCESS BY THE HEALTH DEPARTMENT ) WHICH INCLUDES A PUBLIC HEARING. ) WHEREAS, a Hearing Examiner decision issued on October 8, 1987 interpreted sludge as solid waste in keeping with the definitions established in state law, thereby requiring a conditional use permit for the utilization of sludge, which was not necessarily the legislative intent; and WHEREAS, the Planning Department staff has recommended a revision to the zoning ordinance which would allow the recycling of solid waste on land when regulated by a utilization permit in accordance with WAC 173 -304 -300 as an accessory use in the rural, agricultural and forestry zones which would again eliminate the conditional use process for the beneficial use of sludge on land and other beneficial recycling of waste by- products; and WHEREAS, the planning staff has prepared a staff report providing background information, findings, conclusions and a specific recommendation for the recycling or utilization. of solid waste on land (Exhibit "2 "); and WHEREAS, pursuant to RCW 36.70.590, a legal notice was published in the Bellingham Herald on October 30, 1987 and in the Westside Record- Journal on October 28, 1987; and WHEREAS, a Determination of Non - significance was made on October 26, 1987 by the Deputy SEPA Responsible Official; and WHEREAS, the Planning Commission held a public hearing on the proposal on November 10, 1987 and conducted a work session at a special meeting on November 17, 1987. NOW, THEREFORE, BE IT RESOLVED: Findings of Fact and Reasons for Action 1. That a quorum of Commission members was present during the hearing and special meeting. Agency Report File Ref: 10 -87:ZT Page Two 2. The statutory requirements were met regarding legal notice and SEPA review. 3. The Planning Commission generally concurred with the staff findings, conclu- sions and recommendations as presented in Exhibit n2n. 4. However, based on the testimony received and discussion of the issues the Planning Commission finds that the exemption should be specifically limited to sludge and not include all of the beneficial uses of waste allowed by WAC 173 -304 -300 as they can not be defined with certainty at this time. 5. The Planning Commission also finds, based on the public testimony, that a public hearing process needs to be included as part of the permitting procedures by the Health Department if a conditional use is not to be required. 6. A majority of the Planning Commission recommends to the County Council the adoption of the amendments to the Rural, Agricultural and Forestry districts of the official Whatcom County Zoning Ordinance, Title 20 as presented in Exhibit "1" to allow the beneficial utilization of sludge as an accessory use subject to the adoption and implementation of a revised utilization permit procedure including a public hearing process by the Bellingham - Whatoom County District Department of Public Health. 7. The Chairperson and Secretary are hereby directed to place their signatures on this document and transmit same, together with Exhibits "1" and "2" to the County Council. WHATCOM COUNTY PLANNING COMMISSION Acting Chairperson Daniel W. Taylor, cretary Attachments: Exhibit "1" - Amended text of Title 20 Exhibit "2" - Staff Report EXHIBIT m I m RURAL DISTRICT 20.36.100 ACCESSORY USES .106 Utilization of sewage sludge on land when regulated by a utilization permit issued by the Bellingham- Whatcom County District Department of Public Health in accordance with WAC 173 -304 -300. This would apply to any land owned or leased by the same operator. 20.36.150 CONDITIONAL USES .163 Solid waste disposal facilities and sites except for sewage sludge when a utilization permit is issued by the Bellingham- Whatcom County District Department of Public Health in accordance with WAC 173 -304 -300. AGRICULTURAL DISTRICT 20.40.100 ACCESSORY USES .111 Utilization of sewage sludge on land when regulated by a utilization permit issued by the Bellingham- Whatcom County District Department of Public Health in accordance with WAC 173 -304 -300. This would apply to any land owned or leased by the same operator. 20.40.150 CONDITIONAL USES .163 Solid waste disposal facilities and sites except for sewage sludge when a utilization„ permit is issued by the Bellingham- Whatcom County District Department of Public Health in accordance with WAC 173 -304 -300. FORESTRY DISTRICT 20.42.100 ACCESSORY USES .101 Utilization of sewage sludge on land when regulated by a utilization permit issued by the Bellingham- Whatcom County District. Department of Public Health in accordance with WAC 173 -304 -300. This would apply to any land owned or leased by the same operator. PILL i►1U-8Y : LG'1' DATE: 11 -4 -87 EXHIBIT "2" VHATCOM COUNTY PLANNING DEPARTHRUT STAFF REPORT APPLICANT: Whatcom County Planning Department 401 Grand Avenue, Bellingham WA 98225 REQUEST: The request is to exempt the recycling or utilization of solid waste on land from the present status of conditional use and prohibited use in the Rural, Agricultural and Forestry zones when a Bellingham- Whatoom County District Department of Public Health (Health Department) utilization permit is issued in accordance with WAC 173 -304 -300. LOCATION: This would allow the utilization of solid waste within the above parameters in any Rural, Agricultural or Forestry zone in Whatcom County which falls under Title 20. This covers the majority of the non - urbanized area of unincorporated Whatoom County with the exception of the Foothills and South Fork Valley areas which are still under interim zoning. STATUTORY REQUIRINEWS: Pursuant to RCW 36.70.590 legal notice was published in the Bellingham Herald on October 30, 1987, and in the Westside Record Journal on October 28, 1987. The Deputy SEPA Official issued a Determination of Nonsignifi- oance for the proposed amendment on October 26, 1987. Phased SEPA review under WAC 197- 11- 060(5)(c)(i) was used which allows further SEPA review by the Health Department for site specific proposals. ltEOULATOIY EFFECTS OF THE REQUEST: The regulatory effect of the proposal would be to specifically eliminate the use of solid waste from the conditional use requirement of the Rural and Agricultural zones whenever a utilization permit is issued. It will also eliminate it from the prohibited uses in the Forestry zone where solid waste in general presently falls in the category of "all other uses ". This will mean that zoning will not regulate solid waste recycling or utilization on land if it fits the definitions in WAC 173- 304 -300 and a utilization permit can be obtained from the Health Department. This would specifically, and most particularly in the near future, apply to the spreading of sludge on land as a beneficial agricultural practice. ANALYSIS ARID EVALUATION When Title 20 was originally adopted in December 1981, solid waste disposal sites and facilities were made conditional uses in the Rural and Agricultural zones and not discussed under the Forestry zone, thus making them prohibited uses in that district. At the time recycling, or beneficial use of waste by- products such as spreading of sludge on fields, was apparently not thought to be part of the definition of solid waste as it was not considered to be an issue, or a land use per se. And in fact sludge has been spread for years on Whatoom County farms with out requiring any zoning review. In 1983 the Health Department began to regulate the spreading of sludge, and in 1985 the Department of Ecology developed the waste recycling facility standards (WAC 173 -304 -300) which identify the utili- zation of sewage sludge on land for beneficial uses as a subset of solid waste disposal. As far back as 1976, which predates Title 20, the legislature had included the notion of solid waste recovery and recycling as'part of solid waste management, and without naming sludge had broadened the definitions of solid waste and solid waste handling sufficiently to cover the beneficial utilization of sludge or other solid wastes. Meanwhile however, the County.was still oper- ating on the assumption that sludge or similar utilization of solid waste was not intended to be regulated by zoning. This all changed when the emotional issue of utilizing Everett sludge occurred earlier this year. People became concerned about not only how the Health Department regulated sludge but also that County staff did not consider a conditional use permit necessary under Title 20. The decision of the Public Works Director that sludge spreading did not constitute solid waste disposal was appealed to the Hearing Examiner. On October 8, 1987, the Hearing Examiner made a determination based on the language in RCW 70.95 and WAC 173 -304 that a condi- tional use permit is required for the spreading of sewage sludge in the agricul- tural district under the provisions of Section 20.40.163, which calls out solid waste disposal sites and facilities as conditional uses. The Hearing Examiner did not rule on the other zone districts or the application of other solid wastes that might require a utilization permit. But by direct extension this decision would apply to these situations as well. Whatcom County is now in a position of recognizing the application of sludge and other beneficial utilization of solid wastes as being solid waste disposal, and the land on which it is applied as being solid waste sites. We ban accept this and require conditional use permits for this practice, or we can readdress the code and provide exemptions for the beneficial use of solid wastes as distinct from solid waste landfill, in conformance with what is thought to be the original legislative intent. In examining the pros and cons of whether a conditional use permit should be required or not, the following analysis will focus on sludge application which is what has generated the controversy and which can serve as the model for other potential beneficial utilization of solid waste. If sludge spreading remains a conditional use there are several advantages. It provides for public notification and allows for public involvement in the approval and conditioning process. It also provides a double review process, two sets of conditions, and two agencies who could enforce any infractions- -the Health Department and the Division of Buildings and Code Administration. The disadvantages are the redundancy, and the elevation of what is perceived as an incidental agricultural practice to the status of a major land use. The problem with the redundancy is the cost to the taxpayers of operating the dual system and the burden on the property owners and handlers of the sludge in being required to go through a dual process. The conditional use permit process in Whatcom County is not inordinately expensive, it is expeditious, and it is a fair process with reasonable predictability regarding the outcome if the issues are clear. In the absence of other controls, it is a very useful tool. However, in this case, when the issues are technical in nature and the Health Department has the technical expertise and a procedure already in place which is being further refined, it is difficult to justify the costs in time and money for the backup review except for the citizen involvement. The difficulty of elevating an incidental use to a major status is more of a philosophical one in terms of what the role of zoning should be. Zoning has traditionally been viewed as controlling the use of buildings, structures, and land and regulating density, parking, lot coverage and buildings and structures in terms of their location, height, eta. (RCW 36.70.750). However the police 2 powers are broad and in Washington, the comprehensive plan enabling legislation specifically addresses protection of ground water and mitigating, discharges into Puget Sound or waters entering Puget Sound (RCW 36.70.330). Therefore there is no reason why beneficial uses such as sludge spreading which may also have negative environmental consequences could not be addressed in terms of performance stan- dards for agricultural practices. However to isolate this one use while ignoring the effect of fertilizers, manure, poor cultivation and drainage practices or the protection of creeks from livestock is inconsistent. There are other methods to deal with these issues based primarily on education and incentives. Government control in terms of zoning has not been seen as appropriate except for the control of manure storage, feedlots and the number of animals, all of which can have a direct adverse impact on adjacent properties. Spreading of manure has also been identified as a nuisance issue in terms of odor. But this would be a diffi- cult practice to control and to date has not become a part of the zoning regula- tion package. If, as agricultural practices change, zoning is seen as a necessary tool to regulate off -site impacts, then a comprehensive set of performance standards could be developed including regulating sludge for beneficial uses. This would be a major departure from current practice and would require addi- tional staffing and special training to be effective. Meanwhile it seems most appropriate to rely on the expertise available in the Health Department to deal with the beneficial use of solid wastes. The missing element the conditional use permit could provide is public involve- ment. The public, in general, would not have the expertise to deal with the utilization of sludge and under the conditions of a utilization permit there would be no impact on the quality of life or property values of adjacent neighbors as there might be with major uses normally regulated by zoning. However the public does have the specific local knowledge, and the broad concerns for both the environment and, in this case, the potential for uptake of substances into produce from the land which may have, or be perceived to have, harmful concentrations. Therefore public involvement or at least awareness does seem appropriate. However, the Health Department is modifying their procedures to provide notification of the SEPA review. This is an appropriate mechanism to both inform the public and to receive useful information which can be incorporated in the utilization permitting process, eliminating the need for a conditional use permit. FI®INU 1. Solid waste disposal sites and facilities are conditional uses in the Rural and Agricultural zones. They are prohibited uses in the Forestry zone, coming under the category of "all other uses ". 2. It is assumed the legislative intent was not to include the beneficial utilization of solid waste such as the spreading of sludge in the definition of solid waste sites and facilities and the Planning Department and Division of Buildings and Code Administration staffs have been operating on that premise. However the definitions in RCW 70.95 and WAC 173 -304, and the October 8, 1987, ruling by the Hearing Examiner nullify this position making the beneficial utilization of solid waste a conditional use in the Agricultural zone, and by extension in the Rural zone and a prohibited use in the Forestry zone. 3. The beneficial utilization of solid waste has the potential for adverse impacts to the environment both in terms of ground water quality and run -off into rivers and streams, and the uptake of substances into produce in 3 potentially harmful concentrations, in actuality or at least in the public's perception. WAC 173 -304 -300 recognizes potential problems. and calls for regulation of the practice. 4. The Health Department is authorized to issue a utilization permit under WAC 173 - 304 -300 which specifically addresses the beneficial utilization of solid waste and its impacts and is in the process of modifying these procedures which will allow,public awareness and comment if desired. 5. Some level of technical expertise is required to analyze the environmental and public health issues and appropriately regulate the beneficial utiliza- tion of solid waste. The Health Department has this expertise; the Planning Department staff, Division of Buildings and Code Administration staff and the Hearing Examiner do not. 6. All of the possibilities for beneficial utilization of solid waste cannot be foreseen. However Whatcom County does have an abundant supply of agrioul- tural and forestry land which could benefit from the application of sludge. Whatcom County also has several generators of sludge, primarily the Lynden and Ferndale sewer treatment plants. There are other plants that may expand in the future and eventually Bellingham may be a producer of sludge. CONMUSIO13 1. The beneficial utilization of solid waste, most specifically the spreading of sludge at the present, is a useful practice that should not be discouraged. 2. This utilization does have the potential for environmental effects and needs to be regulated, with the Health Department perceived as the most appro- priate agency to handle the regulation. Requiring a conditional use permit under zoning would be redundant with no perceivable benefit. RWA MMATIONS The Planning Department recommends adoption of Exhibit "A" which will permit the beneficial utilization of sludge as accessory uses in the Rural, Agricultural and Forestry zones. 4 RURAL DISTRICT 20.36.100 ACCESSORY USES .106 EDIT •A" 11 apply to any land owned or leased by the same operator. 20.36.150 CONDITIONAL USES .163 Solid waste disposal facilities and sites except when a utilization permit is issued by the Bellingham- Whatoom County District Department of Public Health in accordance with WAC 173 -304 -300. AGRICULTURAL DISTRICT 20.40.100 ACCESSORY USES .111 Recycling or the use of solid waste on land when regulated by A utilization permit issued by the Bellingham- Whatcom County District Department of Public Health in accordance with WAC 173 -304 -300. This would apply to any land owned or leased by the same operator. 20.40.150 CONDITIONAL USES .163 Solid waste disposal facilities and sites except when a utilization permit is issued by the Bell ingham-Whatcom County District Department of Public Health in accordance with WAC 173- 304 -300. FOR &SM DISTRICT 20.42.100 ACCESSORY USES .101 Recycling or the use of solid waste on land when regulated by a utilization permit issued by the Bellingham- Whatcom County District Department of Public Health in accordance with WAC 173 -304 -300. This would apply to any land owned or leased by the same operator.