HomeMy WebLinkAboutPublic Works March 26 20131
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WHATCOM COUNTY COUNCIL
Public Works, Health, and Safety Committee
March 26, 2013
CALL TO ORDER
Committee Chair Barbara Brenner called the meeting to order at 1:33 p.m. in the
Council Chambers, 311 Grand Avenue, Bellingham, Washington.
ROLL CALL
(1:33:42 PM)
Present: Barbara Brenner and Ken Mann.
Absent: Pete Kremen.
Also Present: Sam Crawford.
COMMITTEE DISCUSSION
1. PRESENTATION ON THE RIGHT -OF -WAY CORRIDOR ALONG BIRCH BAY
DRIVE IN CONJUNCTION WITH THE BIRCH BAY DRIVE AND PEDESTRIAN
FACILITY PROJECT (AB2013 -125)
Joe Rutan, Public Works Department, gave a staff report and stated the information
presented reflects what the County documents show as the right -of -way. If anyone has
other information, they should make staff aware of it. There were misconceptions about the
County's intent to build a road and the location of the right -of -way.
This started in 1878, when County Road 22 was created and was 30 feet wide.
When established, it was never surveyed or recorded. It is was recorded as 30 feet above
high water, but that corridor was never surveyed. In 1884, Road 46 was created, and it
overlaid Road 22. This summary is in the Council packet. The area was surveyed in 1916,
and monuments were installed. It was re- surveyed in 1930. Monuments were recovered
three times since then. The County has been maintaining and permitting out there since
1884. The utilities are franchised within the right -of -way. Road 46 overlaid Road 22, but
didn't specify a width, which was common back then. Many roads created relied upon State
laws specifying a width of 60 -feet. Road 46 was surveyed and recorded, but Road 22 never
was. He can't say where Road 22 is located in relation to Road 46. They could expect Road
22 to be more toward the water than it is now. Establishing the high water mark in 1884
would be difficult. There is no intention to create a 60 -foot highway. The cross section
asphalt would be 35- to 40 -feet wide. It's now 30 feet wide. Most acquisition will be on the
water side, to remove the seawall and create a new shore form.
Mann asked if the franchisees use the eastern side of Road 46. Rutan stated some of
the sewer is on the west side.
Mann asked if the utility would be in the right -of -way if the right -of -way is only 30
feet, as some people suggest. Rutan stated he couldn't say. The right -of -way was never
surveyed. He could guess that most utilities on the north or east side would be outside the
original 30 foot right -of -way for Road 22.
Public Works, Health, and Safety Committee, 3/26/2013, Page 1
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Mann asked if there have ever been disputes with the franchisees. Rutan stated
there have not been. Larry Steele was chosen as a local surveying company to do
surveying in 1984, as a neutral third party. The 1984 report is in the Council packet. Larry
Steele did not address one conclusion of law, whether the Road 46 was a legal overlay to
Road 22. The County's position is that Road 22 went away when Road 46 was created.
Brenner stated that if there is a road, the right -of -way is the center of the road.
Rutan stated that is the biggest misconception of rights -of -way. The centerline is not the
center of the right -of -way. The monuments recovered in 2012 show the center of the right -
of -way. The road is all over that right -of -way. Staff has staked its right -of -way. He can
show Councilmember Brenner the actual monuments.
Crawford stated it's a misconception that the County is going to create a 60 -foot
road. There will be resurfacing of the road. The road will be widened to accommodate
bicycle lanes. Rutan stated that's correct. The new pavement within the County right -of-
way, with bicycle lanes, will be about 35- to 40 -feet wide.
Crawford asked if it will all be within County right -of -way. Rutan stated he expects
they will have to purchase some right -of -way for drainage.
Crawford asked if the speed limit will remain the same or be different. Rutan stated
the limit will be 25 miles per hour. He doesn't recommend to the Council that the speed
limit change.
Crawford asked if power poles will be made underground utilities. Rutan stated they
hope this project will locate them underground. There may be issues with that.
Crawford stated there were objections from property owners, who said the berm
would block their view of Birch Bay. It seems the berm elevation is too low for that. Rutan
stated the berm elevation is knee - height. Some of the seawalls that exist now are higher
than that.
Kremen stated one concern was that the County is planning to condemn property to
complete the project. He asked if that's true. Rutan stated that if the County needs to buy
property, the County will approach the property owner and offer market value. This is a
community project that the Public Works Department is trying to finish for the community.
This is supposed to be for the benefit of the community. Condemnation means a design
can't be worked around it. He would not ever propose condemnation. It would be odd to
condemn property, because this project is supposed to belong to the community.
Kremen stated there is a perception from area constituents that condemnation
means the County is going to take their land. The County Council, who would make that
decision, doesn't have the will to condemn property. Owners have to be compensated at
fair market value, if the County did condemn property, which it won't. Rutan stated the
County accepted federal grant funds for the project. Now the County has to go through
federal right -of -way procedures, which are much more extensive than the State.
Brenner stated fair market value isn't that fair. They purchase only the square
footage they need, not the whole property.
Rutan answered questions from the public.
Public Works, Health, and Safety Committee, 3/26/2013, Page 2
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Ron Walkin asked the cost of the design and survey, the source of the funds, the
project phases, and budgeting for maintenance. Rutan explained the Public Works Trust
fund and the project phases. Drainage is road design.
(2:07:13 PM)
Knutzen asked about funds for this project from the State legislature. Rutan stated
they haven't looked at that specifically, but he will look into it.
Knutzen stated those funds are Model Toxics Control Act (MoTCA) funds for clean up.
He doesn't know if this would qualify. Louws stated the County road budget has about $35
million. It would be nice to have the $7 million loan. If the project stays to estimated
costs, the County can self -fund the project. It's not grant money through the public works
trust fund. It's a loan the County would pay back over a period of years.
Rutan stated the six -year road improvement program accounts for the repayment of
that $7 million loan.
Barney Yorkston submitted a letter (on file) and stated the findings aren't clear
regarding the right -of -way. Road 46 was petitioned for before Road 22. He read from his
letter. There are inconsistencies with staff's findings. The project must stay in the
commercial area of Birch Bay. End it at Harborview Road.
Linda Dorshenko spoke for her mother, Jean Swan. Whispering Pines owns the
beach reserves at the mouth of Terrell Creek. It is family property, including the property
across the road. Six trees in the area of the right -of -way have eagles every year. She
asked what this project will do to the eagles. She asked the intent for the mouth of Terrell
Creek, which is her family's land. The house at 7680 Birch Bay Drive has been hit twice by
speeding vehicles in the past six years. What happens with the road in that area is a
concern.
Dymond Nicon submitted a handout (on file) and spoke about what could happen
between the Trend West Condominium and the Bay Center Market. The walkway width is
four to six feet. Bicycles can also use that facility. He asked how safe that truly is, and if
that walkway width is usable by pedestrians. The bay is the attraction. Development
occurs because of the attraction. Therefore, people cross Birch Bay Drive constantly. The
problem is a major safety issue. Convert Birch Bay Drive from Trend West to the Bay
Center Market into a pedestrian promenade. Relocate Birch Bay Drive behind or through
the existing development. Car pollutants would be moved away from the shoreline. Storm
drainage would be reduced. There would be tremendous benefits to the community. Phase
such a project.
Kremen asked if Mr. Nicon's proposal would provide adequate access to homes and
establishments. Nicon stated he's only talking about the commercial strip. This is a great
time to do it. The monies being spent can be spent on other solutions, including the
pedestrian promenade.
John Carter stated that in 1877, the County sent out viewers who viewed the
existing road bed, which was entered into the County minutes and approved. It should
have been on the plat map. It was never put onto the plat map because of a clerical error.
Since then, everything has been referenced as a 60 -foot right -of -way. Just because it
wasn't surveyed doesn't mean it isn't the original road bed. There's no evidence the road
bed has ever been moved or altered. This is the existing road bed, which is 30 feet.
Public Works, Health, and Safety Committee, 3/26/2013, Page 3
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The problem with building a berm is that the beach is the last natural beach in Birch
Bay. Artificially changing it will change the entire beach. It won't be natural anymore.
Every other natural landscape that's been changed has been destroyed. That's what they
are worried about. Even the surveyor said this is a point of law that's never been decided.
A Superior Court judge who lived in the area researched the right -of -way, and found
it to be 30 -feet. The County used the right -of -way for utilities, but the County never asked
for permission. It just assumed there was a 60 -foot road bed. That's been the problem
since the beginning. The County is operating on an assumption, rather than what was
specified.
Jack Louws, County Executive, stated the County believes the purpose of this project
is as a community benefit. Right now, the County is reacting to the issues regarding
stormwater, repairs and maintenance, and other things. The County has an opportunity
now to permit the project. If it becomes evident that they aren't going to be able to achieve
this without a fight, the County will need to decide whether or not it will continue. There is
a window of opportunity to get it done. This discussion is to bring the issues forward. He
doesn't want the Council and County to spend thousands of dollars that will put the County
in a legal challenge. He's forwarding information to the Public Works Department staff, who
are to contact everyone individually and try to work through the concerns. They are at the
preliminary stage of the project. He doesn't have all the answers now. In his experience,
they must handle the difficult items first. He encourages all the members of the community
to stay in touch with the Public Works Department. Ultimately, legal questions should be
resolved.
Brenner stated she would like to receive periodic updates from Public Works
Department staff about their responses to community concerns. Louws stated they will do
that. He encourages the Council to forward concerns to his office. This year, they have to
review the budget to determine if it's in the County's best interest to proceed.
Mann stated he thought everyone in Birch Bay was in favor of this project. He's
learning otherwise. If the County is going to spend $10 million on a project that half the
people are opposed to, they should address it. There seems to be more to the opposition
than just the right -of -way, including the integrity of the beach, flood protection, and traffic.
He wants to hear more about this opposition.
Crawford stated he requests that the citizens who are opposed write down their
concerns. He's confused about why they think this is a bad thing. He would like to
understand their opposition. The County has been planning this for a long time. He doesn't
understand what's going on.
Kremen stated this project has been talked about and planned for many years. He
understood from the Birch Bay Steering Committee that there was a near - unanimous desire
to go forward with the berm project. The County already allocated thousands of dollars in
staff time to achieve this vision the community seemed to want. Only in the last few weeks
have councilmembers found out about concern and opposition to the project. The County
may need to step back and reassess the will of the community. The Steering Committee
was to ascertain the community's desire. Until recently, the Council had the impression this
is something the community wanted.
Public Works, Health, and Safety Committee, 3/26/2013, Page 4
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2. PRESENTATION OF THE PUBLIC WORKS FERRY OPERATIONS REPORT
(AB2013 -126) (2 :33:49 PM)
Frank Abart, Public Works Department Director, read from a handout (on file) and
gave a staff report. Ridership has stabilized. The 45 percent subsidy is calculated on the
total operating cost. The 55 percent recovery is calculated on an adjusted total operating
cost.
Crawford asked if the total operating cost includes the $200,000 lease. Abart stated
it does.
Brenner stated the County doesn't have a legal obligation to pay 100 percent of the
Lummi Nation lease expenses related to improvements.
Crawford asked if the County is not going to put the year one, year five, and year 15
lease and operation subsidy into the 45/55 formula. Abart stated they never have.
Crawford asked if the annual $200,000, which escalates every year, is part of the
operating lease. Abart stated it is. They are two different items resulting from the lease.
Knutzen asked for a monthly summary of ridership for the past year or two.
Kershner asked how the ferry deficit reimbursement, the interest /other income, and
the county vehicle trip credit are paid for. Abart stated the ferry fund absorbs them. That's
why it's important to maintain the ferry fund.
Kershner referenced the fare goal of 55 percent, which is 50.7 percent of the total
operating cost. She asked if that is the difference between the total operating and adjusted
operating costs. Abart stated it is.
Crawford asked if Mr. Abart recommends keeping the $3 surcharge. The surcharge
was a compromise of councilmembers done at a time to face the reality of revenue that was
needed. He prefers to incorporate the surcharge amount into the regular fare schedule,
rather than calling it a fare surcharge. Abart stated staff can put together a proposal if the
Council wants.
Brenner stated she would like to talk to the Ferry Advisory Committee first. She
would like to have a discussion in the future about the purchase of a new ferry, once the
Ferry Advisory Committee has discussed the issue. Start looking for a good used ferry.
Kremen stated he would like information on ferry ridership counts per ferry run.
Kershner asked for a recommendation on the 45/55 split from staff and from the
Lummi Island Ferry Advisory Committee. Abart stated they sent the Advisory Committee a
request to address this in June 2012. He doesn't know if the Council received a
recommendation.
Brenner stated she would like a presentation on it in the future.
Mike McKenzie, Lummi Island Ferry Advisory Committee, stated the Council will soon
receive a letter from the Advisory Committee affirming the 45/55 split, with the condition
that the formula be reviewed annually. Affirm what Mr. Abart is presenting today, and they
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will have more information next year. For now, he agrees with Director Abart on basing the
split on the total adjusted cost.
Kershner asked if the advisory committee recommends that the formula for the split
be on the total operating cost, or adjusted operating cost. McKenzie stated the advisory
committee recommends using the adjusted operating cost.
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. RESOLUTION ENDORSING WASHINGTON STATE INITIATIVE 522
REQUIRING LABELING OF GENETICALLY ENGINEERED FOOD PRODUCTS
(AB2013 -132) (2 :52:37 PM)
Henry Bierlink, Whatcom Farm Friends, asked the Council to take its time with this
resolution. It's a State initiative. His Board unanimously opposes Initiative 522. Ten of the
Whereas statements in the resolution are wrong. The remaining are misleading.
Brenner stated she would like to know what is wrong with each of the statements.
Isabel VanDerslice stated this is an important issue and asked that the Council
support the resolution. Labeling is not the same as banning genetically engineered food
products. It's important for people who want to avoid eating genetically modified organisms
(GMOs). Organic doesn't offer all the protections that people need. It's very important for
the package to be labeled for people who have allergies. The initiative doesn't apply to
meat and dairy products. There is no need to wait for more information. Nothing in it is
contentious. It doesn't cost jobs or money. It just gives consumers equal footing. Approve
this today.
Brenner stated she feels strongly about this, but will wait two weeks to receive
information from Mr. Bierlink.
Knutzen stated he accepts waiting for two weeks.
Crawford stated he suggests that the Council drop this resolution. Four
councilmembers have created a controversy where there didn't need to be. The Council
doesn't decide this issue. It's an initiative put to the voters. He respects and appreciates
the advocacy of the agricultural community. He wants to know why it's important for the
County Council to weigh in. It's a matter of choice that people statewide can vote on. The
County Council is not in a position to advocate on this one way or another, because of the
diversity of the people who live in Whatcom County. There's no need to inject themselves
into this debate.
Brenner stated she disagrees with Councilmember Crawford. When the Council feels
passionately about something, it can weigh in on issues. This is about her right to know
what she's ingesting, but is not for or against GMOs.
Mann stated he doesn't want to tell the State what to do or put things to a public
vote, unless they are statutorily required to or unless he has specialized knowledge. He
signed on as a sponsor, but now realizes that it is his role as a citizen, not as a County
councilmember to endorse or not endorse an issue.
Public Works, Health, and Safety Committee, 3/26/2013, Page 6
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Kremen stated the initiative has merit and he is very pro- consumer. He's inclined to
support the objectives and goals of the initiative, but hold the item for a couple of weeks to
hear from Mr. Bierlink and consider the merits of the resolution.
Weimer stated an original intent when this resolution was discussed was to pass a
resolution soon enough that the State legislature may pass this so it didn't go to the voters.
That's not even addressed in the resolution. The legislature has made it clear it won't do
that anyway. It's fine to hear both sides of the issue. He would like more of an education
on the matter, but doesn't really want the Council or Agricultural Advisory Committee or any
other advisory committee spending a lot of time on this. It's not the Council's issue. He's
fine just letting it go to the voters without Council input, even though he would like
education from both sides to inform his vote in the fall.
Brenner moved to recommend Council approval in two weeks.
The motion carried by the following vote:
Ayes: Brenner and Kremen (2)
Nays: Mann (1)
Kremen stated it doesn't make sense to recommend approval if they are going to
hold it in two weeks. He moved to amend to hold for two weeks without a
recommendation.
Mann stated he is against the motion. Don't waste County resources researching,
deliberating, and getting the public involved in something that is far outside the Council's
purview.
Brenner stated the motion is to hold it in committee for two weeks.
The motion to hold in committee carried by the following vote:
Ayes: Brenner and Kremen (2)
Nays: Mann (1)
2. RESOLUTION VACATING A PORTION OF BRIDGEWATER STREET (SHIPYARD
ROAD) AND DEARBORN AVENUE PER RCW 58.17 AND RCW 36.87 AND
WHATCOM COUNTY CODE 12.20 (AB2012 -272B) (3:07:22 PM)
Joe Rutan, Public Works Department, gave a staff report and stated the Council gave
staff direction a few months ago to modify it. The staff modified the vacation per the
Council direction. The City of Blaine looked at the modification, and it meets their needs. It
does not change the recommendation he brought forward earlier, but it's only one small
piece of the puzzle.
Brenner stated this is the first time she will support a mini -road vacation that staff
doesn't support. She moved to recommend approval to the full Council.
Rutan stated no additional public hearing is required. The public hearing that was
held encompasses a larger area, but this is a smaller area.
The motion carried by the following vote:
Ayes: Brenner, Mann and Kremen (3)
Nays: None (0)
Public Works, Health, and Safety Committee, 3/26/2013, Page 7
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OTHER BUSINESS
There was no other business.
ADJOURN
The meeting adjourned at 3:10 p.m.
ATTEST:
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Please contact the Council Office to obtain an
official, signed copy:
360- 676 -6690 or council@�.o.w hatcom .wa.us
Public Works, Health, and Safety Committee, 3/26/2013, Page 8