HomeMy WebLinkAboutord2001-003WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2000 -391
CLEARANCES
In/gal
Date
Date Received in Council
Office
Agenda Date
Assigned to:
inator. Kraig Olason
10 -27-00
p I{�
NOV 0 7 2000
1NHATC0M COUNTY
COUNCIL
Division Head. Sylvia Goodwin
11/28
Hearing
Dept Head: J.E. Ryan
I"
✓0
Prosecutor.
D
I
ParehaamgrBadgeE
1t 1
P'
Executive:
SUBJECT: WCC 20.80.73 -AMENDMENTS TO LAND CLEARING REGULATIONS, ADDING PUBLIC AND
ADMINISTRATIVE PROCESS FOR LIFTING SIX -YEAR DEVELOPMENT MORATORIUMS AND ADDING
DEFINITIONS REGARDING FOREST PRACTICES.
ATTACHMENTS: Ordinance , Supplemental Staff Report, proposed text, agency response letters, Agency
Report and original Planning Commission proposed text, Planning Commission Minutes, original Staff Report
SSB5714.
SEPA review required? ( ) Yes ( ) NO
SEPA review completed? ( x ) Yes ( ) NO
Should Clerk schedule a heading ? (x ) Yes ( ) NO
Requested Date:
SUMMARY STATEMENT: Proposed amendments to WCC
20.80.730 - Land Clearing provisions specifically related to clearing
requirements for forest conversions and establishing a public and
ninistrative process for lifting six -year development moratoriums
as required by 1997 amendments to the Forest Practices Act.
Staff recommends adoption of Option l as provided by Exhibit A of
the Supplemental Staff Report.
Distribution Request
Indicate Nose who should receive a copy after Council
action.
List spedfic names to the right .
ADS Facilities Management
ADS F/nanee
ADS Human Resources
ADS Info Services
Assessor
Auditor
Cooperative Extension
District Court
Executive
Health
Hearing Examiner
Jail
COUNCIL ACTION TAKEN:
2000 -391 1111412000: Introduced
112812000: Held to 12/12 P &DCommlttee- Hearing
continued to 12112 evening meeting
101212000: Held to spedal P &D meeting on 12/19 - Heading '
oongnued to 1/9/01 meeting
1/9/2001: Held to 1123 P &0 Committee and Hearing held
open to 123
1232001: Amended and adapted G0, Imhof absent Ord. d
- 82001 -003
fated County Contract #: -
Juvenile
Parks
Planning
J.E. Ryan
Prosecutor
Karen Frakes
public Works
Sheriff
Superior Court
Treasurer
Otber
Related File Numbers:ZON99 -00006 -Amend Forest Practices
Ordinance o(r�Resolu(ion Numbe��
(this item): f
SPONSORED BY: Planning
PROPOSED BY: Planning
INTRODUCTION DATE: 11/14/2000
ORDINANCE NO. 2001 -003
AMENDING THE OFFICIAL WHATCOM COUNTY CODE, TITLE 20, CHAPTER 20.80.730, LAND
CLEARING AND 20.97, DEFINITIONS.
WHEREAS, The request is a text amendment to Title 20 of the Official Whatcom County
Zoning Code, Section 20.80.730 and 20.97; and
WHEREAS, pursuant to RCW 36.70.590, legal notice was published in the Bellingham
Herald on September 7, 1999; and
WHEREAS, the Deputy SEPA Official issued a Determination of Non - significance on
September 9, 1999; and
WHEREAS, the Planning Commission held a public hearing on the proposed amendment
on September 23, 1999, considered all testimony, and recommended approval of the text
amendment; and
WHEREAS, The Department of Natural Resources, in consultation with the Department of
Ecology, must approve the County's proposal to assume responsibility for Class IV Forest Practices
pursuant to the recent 1997 legislative amendments to RCW 76.09, and
WHEREAS, The response from Department of Natural Resources that declined to accept
the County's proposal was issued based on Emergency Forest Practice Rules that were adopted
months after the Planning Commission's review and recommendation of proposed language to Title
20.80.730 had been forwarded to the Department of Natural Resources, and
WHEREAS, Modifications to the Planning Commission's recommended proposal removing
all references to County authority over Class IV Forest Practices eliminates conflict with state law,
and
WHEREAS, the Council found the amendments in the best interest of the public health,
safety, and welfare; and
WHEREAS, County Council held a public hearing to consider this matter; and
WHEREAS, the Council has adopted the following Findings and Conclusions:
FINDINGS:
1. Public notice was published in the Bellingham Herald on September 7, 1999 and a public
hearing was held September 23, 1999 before the Whatcom County Planning Commission,
at which time public testimony was given and Planning Commission deliberations occurred.
\\PDS- 1 \V0L1 \USERS\PDS\SHA ED\2 Planning DIvlslon REZONMRezones 1999\Sla% Re;mft ON99- 0000EORD.d0G
Page 1
2. The proposal was reviewed by Whatcom County SEPA Official and a DNS was issued
September 9, 1999. Additional SEPA review was conducted by the SEPA Official on
Options 1 and 2 as contained in the Supplemental Staff Report. No change in the SEPA
Determination resulted from the additional review.
3. SSB 5714 of 1997 modifies RCW 76.09 - Forest Practices and requires local governments
to adopt regulations that are equal to or more restrictive than State Forest Practice
Regulations by December 13, 2001, for the purpose of assuming regulation of Class IV
Forest Practices (Conversions). It also compels local government to impose a six -year
development moratorium on parcels when harvesting takes place without a Forest Practice
application. It further requires local governments to develop a formal public process for
lifting six -year development moratoriums.
4. Review and approval of local ordinances developed to comply with the requirements of SSB
5714 is granted to the Department of Natural Resources in consultation with the Department
of Ecology (RCW 76.09.240(3)(a).
5. A copy of proposed text as approved by the Planning Commission was submitted to
DNR/DOE with associated documents October 26, 1999 for their review and comment.
6. Washington State Forest Practices Board established new Emergency Forest Practice Rules
on March 20, 2000. The newly established rules were used to evaluate Whatcom County's
proposal sent to them in October of 1999.
7. Final comments were received from DNR August 16, 2000. DNR refused to accept the
County's draft proposal for assuming the responsibility of Class IV Forest Practices (Forest
Conversions) due to the failure of several County code provisions, which are referenced by
the proposal, to comply with the newly adopted Forest Practice Rules.
8. Due to DNR's refusal to accept the proposal as compliant with the requirements of the newly
adopted Forest Practice Rules, all references to Whatcom County assuming responsibility
and authority for Class IV Forest Conversions have been stricken from this proposal.
9. The existing County process for lifting the six -year moratorium is not in accordance with the
requirements of Section 76.09.060 RCW.
10. The County does not have a formal administrative process for lifting or waiving the six -year
moratorium for the purposes of constructing a single - family residence or outbuildings, or
both, on a legal lot and building site. Section 76.09.060 RCW authorizes the County to offer
this option to landowners.
11. Land Use Services permit staff have identified the need to establish more clearly the
intended uses of forest conversion proposals to ensure that minimal disturbance occurs
prior to application for development permits.
CONCLUSIONS
1. Adoption of the proposed language will not bring Whatcom County into full compliance with the
1997 Legislative amendments to Forest Practices Act. The assumption of responsibility for
Class IV Forest Practices is still required by December 31, 2001.
\ \P0S .1\V0L1 \USERS\PDS\SHME0\2 Planning DlNsionTtMNE\Rezones 19991SOff Repoft2ON99- 00006A13D.doc
Page 2
2. Adoption of this proposal will satisfy the requirement for establishing a public process for lifting
the six -year development moratorium and will provide an administrative process for allowing a
single family residence on a site with a six -year development moratorium.
3. Adoption of this proposal will provide a heightened level of environmental protection by
minimizing the level of disturbance when no specific development proposal is provided at the
time that the forest harvest/conversion application is submitted.
NOW, THEREFORE, BE IT ORDAINED by the Whatoom County Council that:
Section 1. The Official Whatoom County Zoning Ordinance, Title 20, 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 23 day of January , 2001.
ATTEST:
i
Dana Brown - Davis,
Clerk of the Council
APPROVED as to (form
�oi�
Civil Deo6ty Prosecutor
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
( L. Ward Nelson, -Cou it Chair
O'Approved () Denied
e Kremen, Executive
Dater _ 7_01
\\POS-1MMUSERSTMSHARED\2 Planning Division \RUONE ewnes 199MWIT Reixds ZON99- 0000&ORDAM
Page 3
Exhibit A Ordinance # Jan 23, 01
Page 1 of 11
EXHIBIT A - Option 1
Section 1
PROPOSED REVISIONS TO TITLE 20.80.730 OF THE WHATCOM COUNTY CODE
20.80.730 Land clearing.
(1) Purpose. The purpose of this section is to avoid or minimize impacts of land
clearing activity to adjacent and downstream public or private property and to protect
receiving water bodies. 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 section to establish a county review process for larger clearing projects to insure
these regulations are met. It is also the pumose of this section to provide Procedures and
(2) Applicability. All land clearing
conversion ootion harvest clans (COHPs) and associated development moratorium 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 but not limited to. the Critical Areas
Ordinance the Whatcom County SEPA Ordinance Washington State Forest Practices
pursuant to WAC 222, 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 does not involve the conversion of forest
land is outside critical areas and associated buffers and is exclusively related to agriculture
as defined in this title, non - conversion forest practices, other than a Class IV General forest
practices on platted land,and other than those with an approved COHP regulated under
Chapter 78:98 76_09 RCW, and surface mining regulated under Chapter 78.44 RCW, shall
be exempt from these regulations.
(4) County Review Thresholds. The county shall require county review and
approval of np for to a land clearing activity when any of the following land clearing thresholds
has have been reached. If land clearing activity does not meet the threshold criteria, county
review of the land clearing is not required. However, the owner is still subject to and must
comply with the minimum requirements established in this chapter and in the Whatcom
County Development Standards.
(a) Outside of Water Resource Special Management Areas and Critical Area and Critical
Area Buffers:
(1) Five Thousand Square Foot Threshold on 30 Percent Slopes: The county
shall review all proposed land clearing activities when an accumulative area of 5,000 square
File #: ZON99 -00006
I:Plannin9\Rezone\zoning99Staff Report 2on99- 00006SR- SUP-EX7 final version 1 -2301
Exhihi[ A Ordinance # ]an 23, 01
Page 2 of 11
feet or greater of land clearing is proposed to take place on slopes greater than 30 percent in
gradient.
(2) One Acre Threshold in Urban Zoning Districts: The county shall review all
proposed land clearing activities which are one acre or greater when the activities are
proposed to take place in Urban Zoning Districts and the slope is less than 30 percent in
gradient.
(3) Two Acre Threshold in Rural Zoning Districts: The county shall review all
proposed land clearing activities which are two acres or greater when the activities are
proposed to take place in Rural Zoning Districts and the slope is less than 30 percent in
gradient.
(b) Within Water Resource Special Management Areas and Critical Area and Critical
Area Buffers:
County review and approval shall be required for land clearing activities within Water
Resource Special Management Areas which exceed the following thresholds:
1) Lake Whatcom Watershed: County review and approval shall be required for all land
clearing activities associated with a fill and grading permit, building permit or other
development proposal. Land clearing activities which are not associated with a
development permit shall require County review if they are:
a. 5,000 square feet or greater, or
b. 2,000 square feet or greater on slopes which exceed 10% within 100 feet of
the lake, or
c. 2,000 square feet or greater on slopes which exceed 20% within 200 feet of
the lake, or
d. 2,000 square feet or greater on slopes which exceed 30% within 300 feet of
the lake.
2) Other Water Resource Special Management Areas and Critical Area and Critical Area
Buffers:
a. Five Thousand Square Foot Threshold on 20 Percent Slopes: The county
shall review all proposed land clearing activities when an accumulative area of
5,000 square feet or greater of clearing is proposed to take place on slopes
greater than 20 percent in gradient.
b. Five Thousand Square Foot Threshold Within the Jurisdiction of the Shoreline
Management Program: The county shall 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 within the jurisdiction of the Whatoom County
Shorelines Management Program.
c. Five Thousand Square Foot Threshold Within 200 Feet of a stream subject to
the Critical Area Ordinance. The county shall 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 stream subject to the
Critical Area Ordinance.
d. Five Thousand Square Foot Threshold Within 50 Feet of a Type 5 Stream:
The county shall 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.
File #: Z01499-00006
I:PlanninglRezonelzoningMtaff RepodslZon99-00006 -SR- SUP -Ex1 final version 1 -23 -01
Exhibit A Ordinance # Jan 23, 01
Page 3 of I I
e. Ten Thousand Square Foot Threshold in Urban Zoning Districts: The county
shall review all proposed land clearing activities that are 10,000 square feet or
greater when the activity is proposed to take place in Urban Zoning Districts
and the slope is less than 20 percent in gradient.
f. Two Acre Threshold in Rural Zoning Districts: The county shall review all
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 percent in gradient.
3) Any activity that meets the definition of a conversion from a forest use to another land
use.
al Any activity within 200 feet of critical areas and associated buffers.
(5) Permit Approval and Inspection 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) Project Permit. When land clearing is proposed as a part of a
development proposal, the submittal requirements contained in the Whatcom County
Development Standards including temporary and permanent erosion control measures,
must be submitted by the permit applicant and approved by the county as part of a project
permit application prior to any clearing activity. Under this condition, a clearing permit shall
not be required.
(b) Building Permit. Erosion control inspections shall be required as a
condition of the building permit at the time of footing and inspection sign off.
(c) Clearing Permit. A clearing permit shall be required when land clearing is
the only activity taking place and when no other project permit is required by the county for
the proposal. Under this condition, submittal requirements contained in the Whatoom County
Development Standards must be submitted with the clearing permit application. Clearing
activities which qualify as conversions require additional review pursuant to WCC 20 80 730
(5)(d)(1-iii).
development approval.
(A) If the applicant declares that no development activity is
anticipated within 36 months of the date of application in addition to all other conditions as
Filet.. ZON99-00006
Planning \Rezonelzoning99\Staff ReporlaZon99- 00006SRSUP -M final version 1.23 -01
Exhibit A Ordinance # San 23, 01
Page 4 of 11
application.
(6) Land Clearing Requirements.
(a) Site Containment. Significant amounts of erosion, sediment, and other
impacts resulting from any land clearing activity shall be contained on the site and may
require temporary erosion /sedimentation control measures. before. during, and immediately
following clearing. All clearing activity requiring an approval must comply with the
requirements of this chapter and those of the Whatcom County Development Standards.
(b) Hazards. Land clearing shall not result in significant off -site physical
damage nor pose a significant danger or hazard to life or property on or 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 timing limitations, additional temporary erosion and
sedimentation control, and /or the mitigation of hazardous or potentially hazardous conditions
that pose a physical or environmental threat on or off -site.
(d) Slash Removal in Urban Zoning Districts. In Urban Zoning Districts
slash shall be either removed from the site, burned in oomoliance with the requirements of
the Northwest Air Pollution Authority. or chipped and spread across the site within one year
of project completion.
(7) . Development
Moratoria - Implementation Removal and Exceptions.
File #: ZON99 -00006
I:PlanniigV2ezone\zoning9Mtaff ReponslZon99- 0000&SR- SUP -EX1 final version 1 -23-01
Exhibit A Ordinance p ]an 23, 01
Page 5 of 11
practice application or notification without an associated COHP approval
Clearing permit where the following situations exist:
(1) The violation results in moderate on or off -site impacts that
require mitigation but are not reasonably addressed by the violator within the time allotted
by the Technical Administrator: or
(2) The violation results in severe on or off -site impacts of such
magnitude or type that the Technical Administrator determines that professional assistance
File* ZON9&00006
I:PlanningU ezonetzoninggMtaff Reports on99 -00006 -SR- SUP -M final version 1 -23 -01
Exhibit A Ordinance # Jan 23, 01
Page 6 of 11
(B) Whatcom County shall not accent applications for any development
of land which is subiect to a six -year moratorium.
approved forest practices application or notification.
(iii) Effective Date of Moratorium.
(A) The six -year development moratorium shall be imposed from the
effective date of the applicable forest oractices application: or
opinion of the Technical Administrator a six -year development moratorium shall be imposed
20.92.
Harvesting and any applicable County codes or regulations. When more than one rule
regulation, or code can be applied to a harvest, then the more stringent requirements shall
be adhered to.
(B) Any required mitigation plan has been completed or the
performance thereof has been adequately bonded.
(C) Any bonding required as part of a mitigation requirement has
File #: ZON99-00006
I:P1anning \Rezone\zoning9Mtaff Repods\Zon9M000&SRSUP-EX1 final version 1 -23-01
Exhibit A Ordinance # Ian 23, 01
Page 7 of 11
(E) Payment of all other fees, Penalties, liens. or taxes owed to the
applicant:
1) intended to circumvent any requirement of this ordinance or the
Forest
Practice Act
or Regulations by
taking the actions for which the
moratorium was imposed:
or.
(2)
has engaged in a oattem
or oractice of violations of anv
applicable regulations
result in significant adverse environmental impacts.
consistent and compatible with the goals objectives and Policies of the Comprehensive
(i) General Reauirements.
File #: ZON99 -00006
I:PlanningyRezone�cning99\Sta# Repoits4Z=9900006 -SR- SUP-EXt final version 1 -23-01
Exhibit A Ordinance # Ian 23, 01
Page 8 of 11
(B) A right -to- forestry disclosure statement as provided for in WCC
lands of long -term commercial significance under Chapter 36.70A RCW.
County ordinances or regulations:
(D) The development moratorium shall remain in effect for the
landscaping area, accessory structures, and access road are in compliance with all
applicable County regulations:
(B) The landowner corrects any violations of critical area and
resource land reouirements if any have occurred on the parcel:
(C) Reforestation of the site has occurred, if reouired pursuant to
WAC 222 -34.
proposal and are supported by the record:
vicinity of the proposal.
development moratorium is consistent with the review criteria in (7)(c)(ii) of this section.
this section.
File #: ZON99-00006
I:Plannin9lRezonel2oningglnStaff Repollsl ongg-0 006- SR.SUP.EM final version 1 -23-01
Exhibit A Ordinance # ]an 23, 01
Page 9 of t 1
(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
waiver on development to be granted by the county.
(c) A fee shall be established for the review of a Conversion Option Harvest
Plan.
(d) The Conversion Option Harvest Plan shall remain in effect until a project
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 WCC 20.94.200 under General Enforcement and Penalties.
(11) Penalties. Violation of these requirements is punishable, pursuant to WCC
20.94.200.
(12) Review Fees. Review fees will be assessed as established by the Whatcom
County Unified Fee Schedule.
(13) Water Resource Special Management Areas.
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.
(a) Water Resource Special Management Area Designation. Whatcom County
shall establish the following geographic areas as water resource special management
areas:
(i) Lake Whatcom Watershed;
(ii) Drayton Harbor Watershed.
(b) Water Resource Special Management Area Requirements.
Within Water Resource Special Management Areas, clearing activity must conform to the
following conditions:
(i) 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 re- vegetated;
• The inclusion of vegetation that contributes to soil stabilization;
• A planting schedule that indicates the time frame for re- vegetation.
Cy) Cover Protection: Disturbed areas must be provided with cover protection
within 2 days _of the time of disturbance between October 1 and April 30, and within 7 days
between May 1 and September 30. The Technical Advisor may approve an exemption to
File #: ZON99 -00066
I:Planning Rewnelzwin9991Statr RepctslZ.on99-00006SRSUP -E(1 final version 1 -23-01
Exhibit A Ordinance # Ian 23, 01
Page 10 of 11
this requirement when the vegetation plan includes a disturbed area cover protection
component. This plan component must specifically detail sediment erosion and stormwater
runoff measures that ensure zero adverse impact to any area adjacent to the cleared area.
The net result must be erosion and runoff standards equal to or improving the conditions
that the above 2 -dayl7 -day Cover Protection requirements would have created.
(iii) Phased Clearing: Land clearing activities will be phased to the extent
possible in order to limit the amount of exposed soil that occurs at any one time.
(iv) 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
water resource special management area.
(v) One Hundred Fifty Percent Violation Fines: When a violation occurs in
an area designated as a water resource special management area within the context of this
chapter, the total fine assessment shall be increased to 150 percent. (Ord. 96 -056 Att. A
A2, 1996; Ord. 96 -013 1, 1996).
SECTION 2:
PROPOSED REVISIONS TO TITLE 20.97 OF THE WHATCOM COUNTY CODE
20.97.985.084 Convenience retail shop.
"Convenience retail shop" means a food store designed and intended to serve the daily or
frequent needs of the residential population living primarily within one mile of the shop. The
food store may sell nonfood items such as household supplies, drugs and items for personal
hygiene, but may not dispense gasoline or provide other service for automobiles.
20.97.85 Conversion.
58.17 RCW.
Forest practices on lands that have or are beino converted to another use.
File #: ZON99-00006
I: Planning \Rezone\zoning90\Staff Repork\Zon99-00006 -SR- SUP -E(1 final version 1 -23 -01
Exhibit A Ordinance # Jan 23, 01
Page 11 of 11
their future plans for their property to harvest their timber and also maintain the option to
convert their land at a later date without the imposition of the six year moratorium.
20.97.2-74 272 Nonindustrial buildings.
"Nonindustrial buildings" means those buildings allowed withi n
house those uses contained within the category of public
restaurants, cafes and cafeterias. (Ord. 87 -12, 1987; Ord. 87 -111
File #: Z01499-00006
(:Planning \Rezone) oningglhSla# ReporWgon99-00066 -SR- SUP -EXl final version 1.23 -01
an Industrial District that
uses, or the category of
1987).