HomeMy WebLinkAboutNatural Resources January 27 20091 WHATCOM COUNTY COUNCIL
2 Natural Resources Committee
3
4 January 27, 2009
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6 Committee Member Carl Weimer called the meeting to order at 9:30 a.m. in the
7 Council Chambers, 311 Grand Avenue, Bellingham, Washington.
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9 Present: Absent:
10 Seth Fleetwood None
11 Bob Kelly
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13 Also Present:
14 Sam Crawford
15 Barbara Brenner
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18 SPECIAL ORDER OF BUSINESS
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20 1. ELECTION OF COMMITTEE CHAIR (AB2009 -021)
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22 Fleetwood nominated Weimer.
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24 Nomination carried unanimously.
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27 COMMITTEE DISCUSSION AND RECOMMENDATIONS TO COUNCIL
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29 1. ORDINANCE AMENDING WHATCOM COUNTY CODE 2.34, AGRICULTURAL
30 ADVISORY COMMITTEE (AB2009 -067)
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32 Dean Martin, Planning and Development Services Department, gave a staff report.
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34 Fleetwood asked the definition of "agricultural programs" as used in section
35 2.34.040(A). Martin stated agricultural programs are, for example, administered by the
36 U.S. Department of Agriculture (USDA), Natural Resources Conservation Program, or the
37 State Office of Farmland Protection. The position is intended for someone who is familiar
38 with various agricultural programs and agencies.
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40 Fleetwood stated that establishing, promoting, and implementing a comprehensive
41 agricultural protection and preservation program is the heart and soul of the agricultural
42 program. He moved to recommend adoption to the full Council. He moved to amend the
43 ordinance to include that language and add language, "2.34.030(B) Assist :the County- and
44 make recommendations in the effort to w4tli establish, promote and implement a
45 comprehensive agricultural protection /preservation program; and...."
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47 Motion to amend carried unanimously.
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49 Crawford asked when the Council appoints citizens versus when the Executive
50 appoints citizens to boards and commissions. Some folks have complained that they have
51 applied for this committee when there were vacancies, but they weren't appointed. He
52 thought this committee advises the Council. Martin stated the committee advises both the
Natural Resources Committee, 1/27/2009, Page 1
1 administration and Council. The process in the language of the enabling statute is that the
2 Executive makes a recommendation for appointment that the Council confirms.
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4 Fleetwood stated the committee reports to the County Council directly, according to
5 the ordinance.
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7 Karen Frakes, Prosecutor's Office, stated she believes that the County Charter says
8 that the Executive appoints and the Council approves appointments.
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10 Rebecca Craven, Council Policy Analyst, read the County Charter on board and
11 commission appointment processes.
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13 Crawford stated a citizen asked to be appointed to this committee, and it seems the
14 Executive denied the appointment for some reason. He asked if there are vacancies.
15 Martin stated there are vacancies. Almost all vacancies are for farmer representatives.
16 There are vacancies for specific representatives, such as the Soil and Water Conservation
17 District Board. He described the position requirements.
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19 Weimer asked if the new member is defined so broadly that it is meaningless. Martin
20 stated it is not meaningless. They will look at the applicant's expertise in agricultural
21 programs.
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23 Motion to recommend approval to the full Council as amended carried
24 unanimously.
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27 COMMITTEE DISCUSSION
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29 1. REVIEW OF SHORELINE MANAGEMENT PROGRAM PROPOSED AMENDMENTS
30 (AB2008 -303B)
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32 Peter Gill, Planning and Development Services Department, gave a staff report.
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34 Brenner stated it would be a lot cleaner and clearer if they started it off by saying,
35 "Single family residences may be replaced in kind... however, nonconforming structures with
36 nonconforming uses...." As it's written now, it just says a residence may be replaced if there
37 is no feasible alternative. It seems like this is in addition, so a person still has to do all
38 those things. She has ideas for wording. Change it around to make sure there is no
39 mistaken idea that that those are the same things. She is confused about the difference
40 between nonconforming structure and nonconforming use. Gill stated Councilmember
41 Brenner can suggest language and send it to him.
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43 Brenner stated she would do that. Say something like, 'Single family residences
44 may be replaced in kind." Make that the first sentence.
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46 Fleetwood asked the necessity of "no feasible alternative" language in section
47 23.50.07(F), in light of the new provision that clarifies it. Gill stated that language pertains
48 to a structure other than a single family residence. It was something the Department of
49 Ecology asked to include. It would allow the Department of Ecology to ask that a destroyed
50 business within 30 feet of the water be moved further away to be more compliant with the
51 program.
52
Natural Resources Committee, 1/27/2009, Page 2
1 Brenner stated that is what Ecology suggested originally, but then they said they
2 may not need it with new language. She asked if Ecology has said they don't want that
3 language out of the regulation. Gill stated Ecology has. Ecology said that it's okay to
4 replace structures in kind for single - family residences.
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6 Crawford stated that's not what this language says. It still allows Ecology to rule
7 that there is an alternative. Either someone can or can't rebuild. They keep writing the
8 language in a way that staff can say a homeowner can't replace a house, but staff keeps
9 saying that they will allow a house replacement. It's not good law.
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11 Weimer stated put the language "Single- family residences may be replaced in -kind,
12 unless..." at the beginning. After that, include the language for non - conforming structures.
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14 Brenner stated single - family residences that are non - conforming are non - conforming
15 structures. Therefore, that language would also be confusing. Use the term "non -
16 conforming uses." Gill stated that they could say "non- conforming structures with non -
17 conforming uses." A single - family residence is a conforming use.
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19 Brenner asked why they would even include the term "non- conforming structure."
20 Just use the term "non- conforming use." Gill stated it's for clarity. They're talking about a
21 structure that is built closer than the program allows. The use would be how the structure
22 is used. A structure could be non - conforming while a use is conforming.
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24 Crawford stated he hopes the Council's policy has been clear to staff. Staff is not
25 bringing the Council the language it has asked for. He doesn't know what to do other than
26 to tell staff to get rid of language about "if there is no feasible alternative." Submit that
27 language to Ecology. If Ecology rejects the language, then the County's problem is with
28 Ecology. The people of Whatcom County have been clear on this. No one is in favor of
29 keeping this language. Say something like, "Nonconforming structures that are destroyed
30 by fire, explosion, flood, or other casualty may be restored and replaced in kind, provided
31 that the following are met: the reconstruction process is commenced within 18 months of
32 the date of such damage, and the reconstruction does not... expand and enlarge." That is
33 simple. If Ecology rejects that language, the County will pursue it at that point with
34 Ecology.
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36 Kelly asked Mr. Crawford's issue with the subjectivity.
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38 Crawford stated the "feasible alternative" is in the eye of the beholder.
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40 Kelly stated that's in the context of a nonconforming use that's been grandfathered,
41 and whether or not it should be rebuilt. He asked if Mr. Crawford's point is that they should
42 further define that or create a loophole that would allow a nonconforming use to be rebuilt.
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44 Crawford stated it's not a loophole. It's simply saying that what a property owner
45 had, the County will allow to be rebuilt. There would be no environmental degradation
46 when what was there is replaced. There is no net negative to the environment. If there is
47 language about a feasible alternative, someone could then say there is an issue with the
48 footprint of the original home.
49
50 Kelly stated the issue with the homes is made clear. A home that was a
51 nonconforming structure can be rebuilt in place. That's clear. The issue they're talking
52 about is replacing a nonconforming structure with a nonconforming use. If it needs to be
53 replaced, it needs to be moved back. The language is clear that a house can be rebuilt on
Natural Resources Committee, 1/27/2009, Page 3
1 the existing footprint. He's concerned about creating language that creates a loophole for a
2 nonconforming use, such as a gas station, gets to be rebuilt in the footprint. That's not
3 consistent with the intent of the rules.
4
5 David Stalheim, Planning and Development Services Department Director, stated
6 Councilmember Kelly is correct. There are two different things. There are nonconforming
7 structures and nonconforming uses. The single family residence is a conforming use. That
8 use is allowed in the shoreline environment. They only look to the nonconforming structure
9 language, not to the nonconforming use.
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11 Crawford stated he disagrees. As long as there is language about a feasible
12 alternative, which is in the eye of the beholder, the County can say it's feasible for someone
13 to build their home in a different location. Stalheim stated the language is specific about
14 nonconforming structures with nonconforming uses. They have to be tied together. A
15 single family home is not a nonconforming use. It's conforming. It's allowed within the
16 Shoreline Program. It's a nonconforming structure, but the use is conforming.
17
18 Crawford stated the only way he will be comfortable with that language is if the
19 language specifically exempts single family residences at the beginning of the section.
20 Stalheim stated Councilmember Brenner's suggestion does that. She's trying to make the
21 single - family provision clearer.
22
23 Crawford stated he doesn't understand why they are muddying up the issue of
24 nonconforming use versus nonconforming structure when they can keep it far more simple
25 and much more plain. If the home has already been there, there is no net negative impact
26 from rebuilding.
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28 Weimer stated they would do that because they've recognized over the last 20 years
29 that there is an impact of having structures in those areas. They certainly want to give
30 people the ability to rebuild their single- family house, but they may not want to give them
31 the ability to rebuild some other type of structure in that area.
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33 Crawford stated he doesn't agree. He didn't realize that the Council's intent was to
34 use this code, in the event of some unfortunate event affecting a citizen, to no longer allow
35 them to have what they had.
36
37 Weimer stated that seems to be Ecology's intent, and why it's pushing this language.
38
39 Brenner stated she doesn't agree with that intent. It's not about loopholes. Almost
40 every use near shorelines more than 20 years old is probably nonconforming, because the
41 rules have changed so much. It's about not taking away a person's right to do something
42 they've been doing. When something is destroyed, it's often not completely destroyed. It
43 can be built on and be a lot less expensive than if the entire structure had to be rebuilt.
44 Getting all that going in 18 months seems difficult. If Councilmembers think it's necessary,
45 list specific hazardous structures that they can all agree on. Don't have a blanket regulation
46 about any non - residential use.
47
48 Weimer stated he understands that a shop, for example, with a non - conforming use,
49 can be rebuilt even if there is no feasible alternative for moving it back if the lot is big
50 enough. If the lot is not big enough, the owner can build the shop where it was.
51
52 Chad Young, Planning and Development Services Department, stated that's correct.
53 They are starting to talk about accessory uses. There are limited or no shoreline
Natural Resources Committee, 1/2712009, Page 4
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designations where someone can't construct a residence, even in the natural designation.
There is a list of structures appurtenant to a single - family use. There are also many
accessory uses to a single - family residence, such as a barn or dock. It is part of the use
and enjoyment of a home, but not necessarily connected to a home. Those are conforming
uses. They wouldn't be subject to the language about a feasible alternative. If there is a
lawfully established structure that is an accessory use with an allowed use, it can be rebuilt
under an exemption. The primary use of a gas station is a commercial operation, which
may not be allowed.
Kelly stated accessory should be thought of in terms of conforming uses, which are
residential. Young stated that is correct, for the examples that were discussed.
Fleetwood asked for a realistic real example that is a nonconforming structure with a
nonconforming use in the shoreline. Young stated Black Fish Resort at Point Roberts is built
very close to the shoreline. It's an old cannery structure, It's been maintained over the
years. There have been conditional use permits to use the structure for commercial
purposes. A permit is to add a second story and wing to that structure to develop it as a
resort. When they contemplated the effect of that Ecology change countywide, they tried to
think of how many nonconforming commercial structures there were that could be affected.
There aren't many examples. Another example is the restaurant in Birch Bay that is built
right on the water.
Fleetwood asked what staff would decide if this language about a feasible alternative
were to apply. Young stated that if this structure were hypothetically destroyed, it was a
nonconforming structure with a nonconforming use, and the owner had five acres upland,
across the street from Birch Bay, there would be no need to reconstruct the building over
the water. Although, the water is a conforming use, which is a water - dependent use. If it
weren't a restaurant or any permitted use, the business would have to consider relocating
to a more conforming option if possible.
Fleetwood asked if the County's planners, who will be the ones who will interpret this
code, believe that this language regarding feasible alternatives is fraught with danger.
Stalheim stated "feasible alternative" is defined in the Shoreline Program. It's a well - scoped
definition in the ordinance. It is tied to other issues, such as hazardous areas. He is not
concerned about it.
Brenner asked about cottage industries. Sh
with people who played by the rules, and who may
She likes the new wording about commencing the
industry would be a nonconforming use that would
industry language is in Title 20. It is allowed z
following the conditions of approval, it would be a
parking, signage, and employee parking.
e asked where they draw the line. Work
not have insurance for every little thing.
permit process. She asked if a cottage
have to move. Young stated the cottage
s a residential use with conditions. If
residential use. There are limitations to
Brenner stated staff has to be sure about these interpretations. The problem is with
subjective translation. Young stated he can't recall any example of complete damage and
replacement. They have to approach things case -by -case, but he doesn't see the intent of
this regulation being about a cottage industry. It's based more on a big, nonconforming
use.
(Clerk's Note: End of tape one, side A.)
Natural Resources Committee, 1/27/2009, Page 5
1 Crawford stated this is a request to Ecology to petition a change. An ordinance, not
2 a resolution. Gill stated they are still debating how this will go forward, as an ordinance or
3 as a resolution.
4
5 Kelly stated he's fine with the language as it is proposed. Move forward these
6 suggested changes to Ecology as soon as they can.
7
8 Fleetwood asked if Ecology requires the "feasibility" language. Gill stated it does, for
9 nonconforming uses.
10
11 Weimer stated he supports the proposed amendments as they are, with
12 Councilmember Brenner's suggestion to put the language about housing at the beginning
13 for clarity.
14
15 GIII continued his staff report and read the table on Council packet page 13.
16
17 Brenner stated she would rather the language would say, "23.50.07(N) The
18 Administrator aa-y will! allow landward enlargement or expansion..." as long as the project
19 meets the requirements. She is concerned that even though someone meets all the
20 regulations, they can still be denied. Gill stated they can make that change.
21
22 Crawford stated he likes the new section (N). It is more permissive than what is
23 currently adopted.
24
25 Weimer asked how they are going to track whether there is impervious surface. In
26 14 years, someone can add almost 1,000 square feet to a house. Gill stated this program
27 updates every seven years. If there is a concern, that language can be removed.
28
29 Young stated they do make an attempt to establish whether or not such impervious
30 surfaces were lawfully established in the first place. They have very good imagery now that
31 is updated regularly. In the end, the burden of proof falls on the applicant to demonstrate
32 there was lawfully established Impervious surface.
33
34 Weimer stated he prefers to amend language in 23.50.07(N). "...provided that, this
35 allowance eeuld shajf only be used once eveFy seven yeaFs."
36
37 The Committee concurred.
38
39 Brenner stated correct typos in (L) "Where -Ppermitted by according...."
40
41 The Committee concurred.
42
43 Crawford stated he suggests amending L(2), "...normal appurtenances (except drain
44 fields) and landseaping; and." The effect would be that the landscaping does not apply
45 toward the 2,500 square feet limit.
46
47 Weimer asked why landscaping is included. Gill stated it could include everything
48 from lawn to native landscaping. It is still impacted area that doesn't provide the same
49 functions as a natural vegetated buffer riparian area. It may have little use for ecological
50 function if it's in between a garage and a house, for example. Native landscaping outside
51 the area between the house and the shoreline does not count. That landscaping between
52 the house and road may count if it is part of the impact area.
53
Natural Resources Committee, 1/27/2009, Page 6
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Brenner stated amend L(2) to remove the words "...normal appurtenances (except
drain fields ) and landscaping s (eceptnatiVe uegetatlon, and " Gill handed out information
from a presentation (on file) and referenced slide four, the layout of a new residence on a
nonconforming lot.
Kelly asked why it matters what the vegetation type is, as long as there is a buffer
serving that particular function. Gill stated that according to the slide, native vegetation on
the landward side of the house doesn't provide the same function as the area on the other
side of the house.
Kelly stated they want any buffer as long as it provides a function of stopping
sediment transport and other things. Young stated the area between the residential
structure and the shoreline, if planted in native vegetation, would meet the vegetation
conservation standards of the program, which are also required for administrative approval.
Kelly stated he is concerned if someone plants nothing but a bunch of
rhododendrons, with nothing but dirt around them. There will still be sediment transport
and a way for stuff from the garage to leach into the surface water. That doesn't provide
the function they're looking for, but it's native. Young stated those vegetation conservation
parameters are specific about how an area is planted.
Gill explained which parts of the diagram on the slide are counted toward the 2,500
square foot area.
Stalheim stated item L(2) applies only to the building area lying landward of the
shoreline buffer, not including the required yard setbacks. Therefore, they are defining the
building area as an area that doesn't include the yard setbacks. These areas aren't
functioning as buffers.
Crawford stated the diagram on the slide is great. They need to work on the
language in L(2) so it's clearer about what is shown in the diagram.
Young stated the vegetation conservation standards allow 10 percent or up to 500
square feet of ornamental lawn within the buffer.
Brenner stated they can make it clear by allowing any native vegetation landscaping
that protects shorelines. The 2,500 square feet is the impervious area. Create incentives
for people to use more native vegetation.
Young stated that because there is a house between the front yard landscaping and
the shoreline, there may not be a buffer function because that area isn't directly connected
to the shoreline.
Brenner stated things around the house can still be protective. Native vegetation
helps, no matter where it's at. Young stated that soils in areas impacted during
construction are typically unsuitable for anything other than a Lawn.
Brenner stated that's been changing. Contractors are piling the soil and
reconstructing the ground.
Weimer asked the consequence of allowing native vegetation to not be included in
the 2,500 square feet. He asked if the person would be allowed to build a bigger house.
Young stated that's correct.
Natural Resources Committee, 1/27/2009, Page 7
1
2 Weimer stated a lawn is probably a better filter strip than more impervious surface.
3 The language as it is now is more protective than if they include Councilmember Brenner's
4 suggestion about native vegetation.
5
6 Brenner stated the native vegetation will offset the increased amount of impervious
7 surface.
8
9 Weimer stated he approves of the proposed language in (L)(2) without any changes.
10
11 The committee concurred.
12
13 Crawford stated he's fine with things as they've been explained, but the language in
14 L(2) regarding landscaping needs clarification. He's not sure it truly allows what is
15 represented in the diagram.
16
17 Gill continued the staff report.
18
19 Crawford stated the public needs a good explanation of the reason for a setback of
20 150 feet. He doesn't support the plan as it is.
21
22 Weimer stated the Council put limits on what it would look at as amendments. There
23 were nine items, and the setbacks weren't one of them. The Council wanted to get this
24 done quickly and get it to Ecology, who said they would process these minor things quickly.
25 If the Council wants to revisit the setbacks, they would have to reactivate the citizens group
26 and process.
27
28 Kelly stated buffer discussions are very subjective. They are very difficult
29 discussions. Buffers are difficult to challenge legally. Many good technical work on the part
30 of planners and biologists led them to that number. They could have an argument for the
31 next seven years about whether or not they need to add another 25 feet to that buffer, or
32 reduce it by 25 or 50 feet. They're those types of discussions. It's really subjective in
33 terms of the science and policy. At the end of the day, it's a policy decision: 'The,,State and
34 local governance rules dictate that this body has the ability to make that policy decision,
35 which is subjective. That's how they got to this buffer number. The process lends itself to
36 this group taking a step back and looking at whether 150 feet is adequate. It may be that
37 in seven years, there is solid science that says the buffer should increase to 200 feet.
38 That's the nature of these buffer discussions.
39
40 Crawford stated that 150 feet is double the length of the Council Chambers. When
41 building, one has to have a ten -foot access around the structure for fire, which doesn't go
42 into the buffer. It gets really far, really fast. That is a lot of area. That limitation is not
43 practical in terms of whether or not someone would have any impact on the shoreline.
44
45 Weimer stated hold this in committee schedule it for introduction in two weeks, and
46 hold a public hearing in four weeks.
47
48 The committee concurred.
49
50 Fleetwood asked about comments they've received about whether or not there is a
51 requirement to review these on a case -by -case basis, rather than have a blanket 150 -foot
52 setback, based on recent appellate court law. He asked if legal counsel has had a chance to
Natural Resources Committee, 1/27/2009, Page 8
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review that and could make a presentation at the next Natural Resources Committee
meeting.
Karen Frakes, Prosecutor's Office, stated these issues are subject to pending
litigation and will ultimately be decided by Superior Court. It is the County's position that it
has the science to support those buffers, and that the County and State have the authority
to have buffers like that if the science supports it. There are provisions for people to reduce
or average those buffers on a case -by -case basis.
OTHER BUSINESS
Weimer stated they must choose which two committee members will attend the joint
Lake Whatcom Policy Group meetings.
Kelly stated he would rather have the luxury to attend as his schedule allows.
Weimer stated he and Councilmember Fleetwood will continue to attend as the
primary members.
ADJOURN
The meeting adjourned at 11:05 a.m.
Jill Nixon I n Transcription
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Daf Br YZIVMA .--Coune- Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Carl Weimer, Committee Chair
Natural Resources Committee, 1/27/2009, Page 9
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