HomeMy WebLinkAboutSpecial Committee of the Whole November 7 20121
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WHATCOM COUNTY COUNCIL
Special Committee Of The Whole
November 7, 2012
CALL TO ORDER
Council Chair Kathy Kershner called the meeting to order at 11:29 a.m. in the
Council Conference Room, 311 Grand Avenue, Bellingham, Washington.
ROLL CALL
Present: Barbara Brenner, Sam Crawford, Kathy Kershner, Bill Knutzen, Ken Mann
and Pete Kremen
Absent: Carl Weimer
COMMITTEE DISCUSSION
1. DISCUSSION REGARDING PROPOSED ZONING AMENDMENTS TO ALLOW
AGRICULTURAL SLAUGHTERING FACILITIES IN THE AGRICULTURE ZONING
DISTRICT (AB2012 -300)
Mann stated this is appropriate for an accessory use for a small scale
slaughterhouse. Move from a permitted use to an accessory use, and everything else would
stay the same.
Brenner stated the Revised Code of Washington (RCW) regarding agriculture
reconfiguration talks about the definition of agricultural land. It named animal products in
the definition. It was listed as a specific use in agricultural land. She asked why the County
would call it an accessory use if the State calls it a permitted use.
Mark Personious, Planning Department, stated there is no other specific derivation of
that language in the RCW, so it's open to interpretation. The definition is vague, and the
Act doesn't define it further. The RCW does get into the accessory uses. That's where
these facilities tend to fall. He can look into the question to get more information.
Brenner stated she's listed as the agent for the applicant. When she signed on, she
thought she was co- sponsoring an ordinance to allow small scale slaughterhouses. She
never intended to be an agent for the applicant. She has nothing to do with the applicant.
Crawford asked and there was discussion of the process.
Kershner stated the version of the ordinance in the packet is the version
recommended by the Council's Planning and Development Committee.
Crawford stated approve the proposed ordinance as presented. If there are
ramifications in the future, then make changes.
Mann stated he wants to make it a permitted use in principal. It seems that the
prevailing wisdom is that it is not legal as a permitted use under the Growth Management
Special Committee of the Whole, 11/7/2012, Page 1
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Act (GMA). On the other hand, there is no material impact or hindrance to the businesses
to have it as an accessory use. The farming community isn't particularly concerned about
having it as an accessory use. They want these small scale facilities, to see that an
application is going forward, and to avoid another skirmish with the Hearings Board. Allow
this business to get started.
Crawford stated his concern with the accessory use that they are saying it's an
accessory to the agricultural zone, not accessory to the primary use of the land. All other
accessory uses in the Code are accessory to the use of the land. Also, the byproducts are
often used for things like soap. Language specifying edible products doesn't get to cost -
effectiveness. He asked if the limited amount of rendering can be used for other clean
products that aren't for the purpose of eating.
Mann stated the original presentation was that the applicant wanted a facility where
every part of the animal is used. Through research, there became a grave concern about
rendering, which causes a terrible odor. They further defined rendering to edible rendering,
which doesn't produce an odor.
Crawford stated he was told that there is no difference in rendering in terms of
negative impacts to making edible products as there is to making soap. Byproducts of a
local process have always logically been part of getting rid of a cow in a clean way.
Mann stated that wasn't his interpretation of the science of the cooking process for
rendering.
Brenner stated don't define edible other than to say it's products created from
slaughter that are meant for people to eat.
Crawford stated they will probably do the limited amount of rendering and create the
byproducts on site. It would be a complaint driven system. It will be difficult for
enforcement staff to evaluate where the products are going and whether they are edible. It
may be sufficient to draw the bar at edible products.
Brenner stated discuss rendering through a separate ordinance. She asked about
small scale in terms of chickens and the definition of large scale.
Knutzen stated the ordinance has issues as submitted. He's more prone to approve
the ordinance if it's a permitted use. No matter what they do, someone will appeal it. They
are going to need some sort of activity. In the current economic climate, make sure there
is as much opportunity as possible. This use is needed in those zones. As a permitted use,
it makes it easier for financing and investment.
Mann moved to amend the ordinance to delete section 20.40.056 and reinstate
section 20.40.114, to put the agricultural slaughtering facilities in the accessory use section
and take it out of the permitted use section of the code. Change it from a permitted use to
an accessory use.
Crawford asked about the definition of accessory use in agriculture.
Personious stated amendments to GMA regarding accessory uses of agriculture was
broadened to allow farmers to use more things on their property, as long as the land isn't
lost for agricultural use. Most of the code allows a lot of agricultural accessory uses with
conditions. He would prefer to see the use as an accessory, for protection under GMA. On
Special Committee of the Whole, 11/7/2012, Page 2
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the Agricultural Advisory Committee agenda for next year is this issue of agricultural
accessory uses. Be careful about setting a precedent.
Kershner asked if there are any financing issues with accessory uses. Personious
stated there have not been financing concerns expressed to him by farmers. Other
accessory uses in place now have been financed.
Crawford stated the County Code definition says an accessory use is incidental to a
permitted use, and located on the same lot as a permitted use. Personious stated RCW
36.70A.177, the accessory use umbrella, is an interpretation that allows them to tie an
accessory use to the permitted use in the agricultural zone.
Crawford stated Whatcom County Code 20.97.005 needs to reflect that
interpretation. Personious stated it does. The Agricultural Advisory Committee will look at
that next year. If they didn't redefine it, they would say that someone would have to raise
cows on the property to have a slaughtering facility. Given the nature of agriculture and
crop rotations, that doesn't seem to make much sense.
Kershner asked if the motion includes the same conditions they discussed before, to
make it an accessory use that the Planning Department brought forward, so it's accessory
to the zone.
Mann stated he agreed that is in his motion.
Brenner stated she supports keeping it permitted unless someone proves otherwise
why it can't be a permitted use. It's clear from the RCW that animal products are
agricultural land uses.
Knutzen stated he is against the motion. When citing other examples in the
agricultural zones where other processing facilities were built, keep in mind that those
facilities were on property they'd already owned, had a number of acres to use, and was an
entirely different thing. These applicants are looking at purchasing agricultural property and
getting financing to purchase the property and develop the facility. They aren't talking
about someone who has a couple hundred acres against which they can borrow. He has a
hard time believing there won't be financing issues.
Kremen stated he will support the motion with the understanding that they
incorporate specific language that expresses the intent of the Council about what accessory
means for this particular issue. The motion accomplishes the original objective for this
issue. It will enable the County to be more compliant with GMA, as the staff originally
recommended.
Knutzen stated they are trying to appease a portion of the population that continues
to petition the County on all these issues. He's frustrated by the fact that business owners
can't find commercial property on the Guide Meridian. Now they're telling someone in an
agricultural industry that a property isn't certain to have a permitted use. The County is
playing to the petitioners instead of to the population of the county. He will support the use
as a permitted use.
Mann stated he understands the frustration. They can't correct the perceived wrongs
that Councilmember Knutzen sees in the rural element State law by ignoring other State
laws. If it's illegal and doesn't comply with State law, the County isn't helping anyone.
Councilmember Brenner may disagree with the interpretation of the law received by various
Special Committee of the Whole, 11/7/2012, Page 3
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members of the community and by County staff. She's entitled to her interpretation. He
will go with the interpretation that will allow the small scale slaughterhouses to exist and
serve the agricultural community and be legal. Regarding financing, it's always risky to
make an ordinance or law based on one anecdote. The applicant for this use has said his
financing won't be affected if it's an accessory use or a permitted use. That made him more
comfortable with making it an accessory use. Comply with State law. Allow small scale
slaughterhouses, and move on.
Brenner stated that if there is a reason why this is not allowed as a permitted use,
she wants to see it. Animal products are an agricultural land use. It's important to get
their own information rather than rely on what someone else says. She is ultimately
responsible for her vote.
Mann stated that when lawyers tell him something is not legal, he will accept their
professional advice. He does that with scientists and other professionals. He's not going to
get a degree in every topic that comes before the Council.
Crawford stated he agrees with Councilmember Kremen. Effectively, it won't make
any difference. It satisfies what the legislature allowed for a few years ago. Accomplish
what they can, and move forward.
Kershner stated she agrees. She's willing to vote for it as an accessory use because
it doesn't sound like there is any significant difference in how a slaughterhouse would be
built and permitted. If she hears of a use that hasn't been brought up, she will bring
forward an amendment to this code.
The motion carried by the following vote:
Ayes: Crawford, Kershner, Mann and Kremen (4)
Nays: Brenner and Knutzen (2)
Absent: Weimer (1)
Brenner stated that if the accessory use wording is the same, they won't be able to
do it on property unless it is a small fraction of the property. It must not interfere with the
overall agricultural use of the property. Change the wording so that it must not interfere
with the zone or the area.
Kershner stated that will change. Personious stated there is language that the use
would go on even if it's an accessory use.
Kershner stated get the previous language from staff.
Brenner moved to amend to change "eders noxious emissions." Anything someone
can smell is an odor. State that they are talking about noxious emissions.
Kershner asked if there is a definition for noxious emissions. Personious stated this
language came from the existing Code language about nuisances. He doesn't have a
problem with the term noxious emissions.' It's still complaint- driven and subjective.
Crawford stated odor is odor. They are saying there can't be any odor, which is a bit
hypocritical given the right -to -farm ordinance. He asked if that's really what they want.
Brenner stated they are talking about something that would be offensive, not just an
odor. Not all odors are noxious.
Special Committee of the Whole, 11/7/2012, Page 4
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Kremen stated he'd like to know the definition of noxious.
Crawford stated the definition of noxious is harmful, poisonous, or very unpleasant.
The motion carried by the following vote:
Ayes: Brenner, Kershner, Knutzen and Kremen (4)
Nays: Crawford (1)
Abstain: Mann (1)
Absent: Weimer (1)
Benner moved to amend language, "...of the
zone or area, provided the following criteria are met." They are setting themselves up for
lawsuits when things don't agree with each other.
Mann asked if Councilmember Brenner assumes that someone would claim
agricultural slaughtering facilities are not part of the agricultural use of the property.
Brenner stated that's correct, because they're calling it an accessory use, not an
agricultural use. The RCW calls it an agricultural use.
Mann stated being vague creates a host of problems. He's happy with the language
they have and the motions made so far.
Kershner stated she supports the motion. It speaks to the issue of allowing these as
an accessory use in the zone or area rather than at a property level. That's her intent.
Don't restrict these uses because of someone's use on the property.
Brenner stated that if they leave in this language, the Kaisers still would not be legal.
They have had one of the best operations anywhere. It would interfere with the overall
agricultural use of the property. If it's an agricultural use, it's permitted.
Personious stated he suggests that they also make that change to section 20.40.164.
Brenner accepted the suggestion as a friendly amendment.
The motion failed by the following vote:
Ayes: Brenner, Kershner and Kremen (3)
Nays: Crawford and Mann (2)
Abstain: Knutzen (1)
Absent: Weimer (1)
Brenner moved the same motion, to amend language in sections 20.40.114 and
20.40.164, "...of the pFepeFty and neighbering PFOpeF zone or area, provided the
following criteria are met."
Kremen asked if staff has concerns about the motion.
(12:23:52 PM)
Personious stated the reason for the existing language is from RCW 36.70A.170(3).
They are mirroring the RCW accessory umbrella language in this particular accessory use
case.
Special Committee of the Whole, 11/7/2012, Page 5
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Kremen stated the motion is different from what is in the RCW. He asked if staff has
any concerns if the Council approves the motion. Personious stated he would be concerned.
The GMA interpretation may be different. Take as much shelter under the umbrella
language as they can. They can do that by redefining the use. An accessory use in this
case is not being specific to the property. It doesn't divorce the discussion of the impact of
the use on the particular property in the agricultural zone.
Kremen asked if the original language, which includes the phrase, "the continuation
of," provides protection for their intent. Personious stated he believes it does. It provides
very consistent language with the language used in the RCW.
Kremen asked if the concerns expressed by Councilmember Brenner are unfounded.
Personious stated this is an area that is sufficiently unclear in the GMA. He's not aware of a
particular Hearings Board case or precedence on this particular issue, which would give
them any further guidance. Not having that guidance, the staff recommendation will always
be to get the most protection they can. That's why they suggest mirroring the RCW
language in the County proposal. There is flexibility to define the slaughterhouse as a
accessory use, which provides some protection. It's not tied to the property. They get
away from the requirement to have cows on the property in order to have a slaughterhouse.
The current language says that a berry field can also have a slaughter facility as long as
agricultural production can happen on the rest of the property. The agricultural activity
does not have to be tied to the slaughterhouse. That's the point of the umbrella language.
They still have to be able to do something. If there is agricultural activity on the property
before the slaughterhouse is built, the question is whether there is potential for agricultural
activity to continue after the slaughterhouse is built. That's the test of this language.
Kershner asked what happens if there is no agricultural activity on the property.
Personious stated no agricultural activity would be lost. There are smaller parcels in the
agricultural zones that are in residential use, not agricultural use. They would not be
converting an agricultural use to a non - agricultural use, because a non - agricultural use was
already there.
Kershner stated she will change her vote and not support this. The explanation is
sufficient to allow the uses that should be allowed.
Brenner stated the RCW said specifically that agricultural land is to be used for
animal products. It's frustrating that they are picking and choosing which RCW language
will be used, and which isn't used. She asked why she is supposed to trust this, when they
can pick and choose what they use out of the RCW. This is political, not objective.
The motion failed by the following vote:
Ayes: Brenner and Knutzen (2)
Nays: Crawford, Kershner, Mann and Kremen (4)
Absent: Weimer (1)
Brenner asked what is "unreasonably infringed upon the use of the adjacent
property. She asked what is unreasonable. She read from RCW 36.70A.030(2), the
definition for agricultural land. The definition of agricultural land includes animal products.
It is land primarily devoted to the commercial production of animal products. All of a
sudden, that's not good enough, but another part of the RCW is good enough. She moved
to remove language in the accessory use and conditional use sections, "....or threaten health
or safety, or to unreasenably infringe upon the use of adjacent preperty." The word
Special Committee of the Whole, 11/7/2012, Page 6
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nuisance has a definition. If something unreasonably infringes upon the use of an adjacent
property, it would be a nuisance. The language is too subjective.
Kershner asked if they are talking about noxious emissions threatening health and
safety. Personious stated they are. It's about rendering and noxious emissions.
Brenner stated people may not like their neighbor and have a problem with anything
the neighbor does. Unless there is a definition of "unreasonably infringe," don't include that
language.
Mann stated it's up to a judge to determine what unreasonably infringes.
Brenner stated that would cause them to end up on court. They don't have to do
that.
Personious stated it would be an enforcement action. This language is right out of
the existing code about public nuisance. He suspects the language is there as a measure of
public nuisance or a definition of public health and safety.
Crawford stated the exact same words are used in three other code references in
industrial zones.
Brenner stated it's not used in the agricultural zone. Personious stated the Right -to-
Farm ordinance provides protection for agricultural activities. This is new because the
Planning Commission did not include rendering facilities at all in its recommendation. If
they include rendering facilities, there is an entirely new set of issues, of which odor is the
biggest. To address it, reference odors as a nuisance in the existing code. That's as close
as they can come to being consistent with current regulation.
Brenner stated this is different from industrial uses. It will cause a lot of problems
because there is no definition of unreasonably infringe.
Crawford stated the discussion is whether or not it's reasonable to expect some
limited amount of odor coming from a facility. They may not be able to contain the odor
one hundred percent. The question is whether they are going to have a code that allows a
neighbor to complain.
Kershner stated the odor would have to be noxious.
Mann stated the Planning Commission was deeply concerned about odors from
rendering, and didn't recommend allowing it. He agrees the word "unreasonable" is vague.
The Committee discussion and findings make it clear that anyone who moves into the
agricultural zone should expect to smell, see, and hear things and to have dust. This
applies only to edible rendering. They don't want the noxious emissions from an edible
rendering facility to unreasonably infringe upon adjacent properties. That's fair to say.
He's comfortable with that statement, given the many comments they've had about how
noxious rendering process can be if they're not done right. He wants to allow rendering and
to make sure it's done right.
Brenner stated the odor may not be from edible rendering. It may be from the
slaughtering facility.
Mann stated that's not how he read it.
Special Committee of the Whole, 11/7/2012, Page 7
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Brenner stated it doesn't say where the odor is caused by edible rendering.
The motion failed by the following vote:
Ayes: Brenner and Knutzen (2)
Nays: Crawford, Kershner, Mann and Kremen (4)
Absent: Weimer (1)
Brenner moved to amend packet page 107, section 20.97.343.1, "rendering
plants."
The motion carried by the following vote:
Ayes: Brenner, Crawford, Kershner, Knutzen, Mann and Kremen (6)
Nays: None (0)
Absent: Weimer (1)
Brenner stated the RCW defines agricultural land as land devoted to the commercial
production of animal products. She asked how they can say it's not a permitted use. It's in
the definition.
Crawford moved to forward to the full Council for introduction as amended.
Brenner stated she wants to reconsider the language in the RCW regarding the
definition of agricultural land and making it a permitted use. It's not an accessory
definition. Also, they never talked about chickens. With a 15,000 square foot building,
people can end up with an industrial farm for chickens rather than small scale. They need
to talk about that. Don't move this forward until they discuss it.
Kershner stated she doesn't see an issue with processing chickens in a 15,000
square foot building.
Brenner stated she doesn't either. It's not small scale when it's 75,000 to 150,000
chickens. That should be an industrial zone. They were talking about things like cattle and
sheep. Chickens produce a lot of nasty byproducts.
Crawford stated they would have to get information from Jim Koplowitz at Draper
Valley Farms. It's an entirely different issue. Historically, there have been lots of chicken
operations in Whatcom County. The main facility is now in Skagit County. Hypothetically,
they could ask if the lower British Columbia chicken industry needs to move here and
whether it would become a nuisance. It's hard to speculate. He's happy with the language.
If it becomes an issue in the future, they can address it.
Brenner stated that if it becomes an issue, it's too late. They're already permitted.
Kremen stated there are already built -in protections with noxious emissions. If that
becomes a problem, they won't be allowed to operate.
Brenner stated noxious emissions are a smell. Chicken poop provides nitrogen and
phosphorus.
Kremen stated those are noxious emissions. It's not just odors. They specified
noxious emissions.
Special Committee of the Whole, 11/7/2012, Page 8
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Mann asked if the concern is that they would somehow enable industrial chicken
production that would pollute the streams and rivers. They have environmental protections
in place for raising livestock. They aren't changing any of those rules. They aren't
changing the rules by which farmers generally have to abide.
Brenner stated this needs to be discussed with someone who has this information.
Mann asked the problem that Councilmember Brenner has identified.
Brenner stated the problem is with the amount of nitrogen and phosphorus that is
left over. It's a big facility.
Crawford stated the Department of Ecology's regulations regarding manure handling
will take effect, regardless of the animal. If they're saying the manure of raising chickens
becomes a problem, it will be regulated. The smelliest thing is mink farming. They can be
hypothetical about many different animals and what could happen under this ordinance.
Brenner stated a mink slaughtering facility isn't edible.
Knutzen stated they are confusing the issues. The concern he read in the email he
received was about a slaughtering facility that could process 10,000 chickens per day and
produce many byproducts, as opposed to slaughtering a couple of cows per day. The
facility on the Guide doesn't have onsite slaughtering facilities. He doesn't think anyone in
the chicken industry is looking for someone to do their butchering.
The motion carried by the following vote:
Ayes: Crawford, Kershner, Mann and Kremen (4)
Nays: Brenner and Knutzen (2)
Absent: Weimer (1)
Kershner stated the Council may introduce the amended ordinance on November 20
and hold a hearing on December 4.
(Clerk's Note: The Committee moved the meeting location into the Council Office
Committee Room.)
2. STRATEGY PLANNING DISCUSSION AND POSITIONS TO BE TAKEN
REGARDING COLLECTIVE BARGAINING (AB2012 -306)
Kershner stated that discussion of agenda item two may take place in executive
session pursuant to RCW42.30.140 (4)(a). Executive session will conclude no later than
1:30 p.m. If the meeting extends beyond the stated conclusion time, she will step out of
the meeting to make a public announcement.
Knutzen moved to go into executive session until no later than 1:30 p.m. to
discuss the agenda items, pursuant to the RCW citation as announced by the Council Chair.
The motion carried by the following vote:
Ayes: Crawford, Kershner, Mann, Kremen, Brenner and Knutzen (6)
Nays: None (0)
Absent: Weimer (1)
Special Committee of the Whole, 11/7/2012, Page 9
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OTHER BUSINESS
There was no other business.
ADJOURN
The meeting adjourned at 1:07 p.m.
The Council approved these minutes on December 4, 2012.
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
Special Committee of the Whole, 11/7/2012, Page 10