Loading...
HomeMy WebLinkAboutCouncil September 9 20081 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 WHATCOM COUNTY COUNCIL Regular County Council September 9, 2008 Council Chair Carl Weimer called the meeting to order at 7:08 p.m. in the Council Chambers, 311 Grand Avenue, Bellingham, Washington. Present: Barbara Brenner Bob Kelly Sam Crawford Seth Fleetwood Laurie Caskey- Schreiber L. Ward Nelson FLAG SALUTE ANNOUNCEMENTS Absent: None Weimer announced there was discussion with Senior Deputy Prosecutor Karen Frakes regarding pending litigation (AB2008 -018) in executive session during the Committee of the Whole meeting. Weimer announced there was also consideration of an appeal of the Hearing Examiner's decision on file No. CUP06 -0031, filed by Watson, regarding Lake Whatcom Residential Treatment Center / Lake Whatcom Water and Sewer District's application for zoning conditional use permit (AB2007 -321B) in executive session during the Committee of the Whole meeting. Weimer moved to uphold the Hearing Examiner's decision. Motion carried unanimously. MINUTES CONSENT Nelson moved to approve the Minutes Consent items. Motion carried unanimously. 1. COMMITTEE OF THE WHOLE FOR JULY 8, 2008 2. SURFACE WATER WORK SESSION FOR JULY 15, 2008 3. COMMITTEE OF THE WHOLE FOR JULY 22, 2008 4. REGULAR COUNTY COUNCIL FOR JULY 22, 2008 S. REGULAR COUNTY COUNCIL FOR AUGUST 5, 2008 Whatcom County Council, 9/9/2008, Page 1 OPEN SESSION The following people spoke: Shannon Thompson, 2125 Wayland Drive, Point Roberts, submitted a handout (on file) and stated she would speak on the discussion of a proposed ordinance amending Whatcom County Code Section 8.10.050, residential recycling collection (A132008- 287). The owner of the business said he was discontinuing curbside recycling because it isn't economically feasible. They have to look at finances for three reasons: the owner brought the issue forward, the owner is in a regulated monopoly, and; the owner leases the business property that he conducts his business on for $50 per month. If they don't look at all the issues, they will never know how to go forward. The County Code exempts non- permanent residents from the service. Also, the owner submitted his annual report late. The report indicates that total assets in 2005 were $122,000 and are now $259,000. The owner has only $6,400 in profit last year, according to the report. In 2005, his assets were $28,000. In 2006, the assets were $47,000. The owner is either driving down his profits for tax purposes or bleeding the company. The revenue is $422,000. Driver wages and benefits in 2005 were $61,000. In 2006, they were $87,000. Now they are almost $161,000. She believes there are other benefits not outlined in the report. The report indicates revenue of $21,000 from recycling, and later indicates there was no revenue. The owner made $78,000 as the sole director. In 1995, the Washington Utilities and Transportation Commission Executive Director made $92,000, and Boeing machinists average $54,000 per year. There are no financial problems with the owner. The owner also claimed that the last owner went bankrupt, which is not correct. Steve Glenn, 7448 Birch Bay Drive, submitted a handout (on file) and stated he needs to speak on the ordinance amending Whatcom County Code, Title 23, Shoreline Management Program; the Official Shoreline Map and associated provisions of WCC Chapter 16.16, Critical Areas, and WCC, Title 20 Zoning Ordinance to update the Whatcom County Shoreline Management Program in accordance with the requirements of the Washington State Shoreline Guidelines (WAC 173 -26) and other applicable local, state, and federal environmental regulations (A132008 -303) because he has to leave early. He will leave his written comments. All of his properties are south of the point where Jackson Road meets Birch Bay Drive. They all face severe building restrictions due to their proximity to the beach or Terrell Creek. Some of these properties have been in his family for over 55 years. Due to inadequate County enforcement, existing residential properties are being penalized by restrictive building codes. Baycrest was built, and all the properties' stormwater drains into Terrell Creek. Terrell Creek is listed as a critical area. Residents along Terrell Creek face restrictive building codes that the Baycrest residents do not face. The magnitude of environmental damage from the Baycrest homes represents a more significant threat than the few homes along Terrell Creek. The property built a road through his property without notification. He is now subject to a setback requirement of 40 feet from the center of the road. Since the County took that property, he's lost that buildable space forever. A County staff person said that Birch Bay was originally built as a summer residence community, and now people want to live there all year long. The County needs to reexamine a need for environmental preservation against the fairness of the codes to the Whatcom County Council, 9/9/2008, Page 2 existing homeowners. They all want what is best for the environment. Don't be so restrictive on properties that did not cause problems. The County allowed Terrell Creek to become polluted due to excessive unrestricted residential growth outside the reach of the residents along the creek. Birch Bay has been polluted for the same reasons, especially the Cherry Point refinery. These laws will reduce value of property along Birch Bay Drive Rick Gatman, Mt. Baker School District Superintendent, submitted a handout (on file) and stated the Council is dealing with issues that impact the school district, including the Lake Whatcom Landscape Plan and reconveyance of trust lands. They look forward to a settlement for the Landscape Plan. Regarding the reconveyance, the district is very concerned about future lost revenues. The district is neither for nor against reconveyance. However, the integrity of the concept of trust lands for education is critical. Herb Iverson, 4361 Cedar Place, Lummi Island, stated he is opposed to the request authorization for the Executive to accept a donation of 1,200 feet of beach and tidelands on Lummi Island for park purposes from Harold and Judy Eldred and the Essex Family LLC (AB2008 -315). The County is not better able to protect the beach than the people who live on the beach. The County hasn't talked about how that protection may occur. "rhere wasn't sufficient notice given to the Sunset Beach Water and Maintenance Association, which has been maintaining the beach and its access. The County has an increase in liability from accepting the donation. Patrick Alesse, 4825 Alderson Road, Birch Bay, submitted a handout (on file) and stated he did a survey of his customers this summer about the speed limit on Birch Bay Drive. Now, its 25 miles per hour during the summer and 35 miles per hour during the winter. He asked his customers if those limits are satisfactory. One hundred nineteen people who responded said it is satisfactory. Ten people wanted it to be faster during the summer. Eight wanted it to be slower in the summer. For government to function well, they must find out what people are talking and thinking about. Brenner stated some people would be satisfied with a broad range of speed limits. Alesse stated it's possible to create a survey that looks balanced, but doesn't provide any information. If something isn't broken, don't fix it. Dennis ]ones, 1487 Sudden Valley, Bellingham, stated Sudden Valley residents began on goal five of the Lake Whatcom Management Plan in 1998. One of the visions of that was a sustainable forestry project, including clear cutting, and a water shed park. The forestry people did this. This was the dream of both sides. The Department of Natural Resources owned about 15,500 acres in the area. The vision was to put about half of it under sustainable forestry according to new laws. The deal was to pay $3,000 per acre to work that out. No option would be of more benefit per dollar to Lake Whatcom than that agreement. PUBLIC HEARINGS 4. ORDINANCE AMENDING WHATCOM COUNTY CODE, TITLE 23, SHORELINE MANAGEMENT PROGRAM; THE OFFICIAL SHORELINE MAP AND ASSOCIATED PROVISIONS OF WCC CHAPTER 16.16, CRITICAL AREAS, AND WCC, TITLE 20 ZONING ORDINANCE TO UPDATE THE WHATCOM COUNTY SHORELINE MANAGEMENT PROGRAM IN ACCORDANCE WITH THE REQUIREMENTS OF THE WASHINGTON STATE SHORELINE GUIDELINES (WAC 173 -26) AND Whatcom County Council, 9/9/2008, Page 3 OTHER APPLICABLE LOCAL, STATE, AND FEDERAL ENVIRONMENTAL REGULATIONS (AB2008 -303) Weimer stated a lot of information needs to be clarified. County staff will talk about what the State Department of Ecology (Ecology) brought to the County in August, what the County Council approved, and legislation that has existed since 2005 or 2007. There is a handout that says people can't rebuild their houses if they burn down. County staff will talk about the facts. Peter Gill, Planning and Development Services Department, gave a staff report and submitted a handout (on file). He read from the handout on the six most significant changes that Ecology made to the Shoreline Program as of August 5. With a variance, there is an option for nonconforming residences to expand waterward. Public access for public entities has been a policy in the past. Caskey- Schreiber asked Mr. Gill to explain that they have not changed the regulation so someone would not be able to rebuild. Gill stated that is correct. If there is a flood or a house burns down, a house is allowed to rebuild within the existing footprint, in most cases. The ordinances say that nonconforming structures that are destroyed by fire, explosion, flood, or other causality may be restored or replaced in kind. There is no feasible alternative that allows for compliance with the provisions of the program, provided that conditions are met. Those conditions include a reconstruction process that commences within 18 months of the date of the damage and that does not expand, enlarge, or otherwise increase the nonconformity, with exceptions. Those exceptions have to do with expansions that would require a variance or conditional use. Brenner stated she had asked about this provision before the County sent its version to Ecology. She was told that people could rebuild. She asked for the definition of "feasible alternative." She asked who decides what is feasible. Weimer stated that whole section has been a part of the code since February 2007. It wasn't a part of Ecology's changes. Crawford stated this has never been in the code. Brenner stated this was in the regulations the County sent to Ecology. Margaret Clancy, ESA Adolfson, stated she is lead consultant for the County in developing the Shoreline Management Program (SMP). Since 1976, when the current SMP was adopted, there have been nonconforming use provisions that determine the circumstances under which people may rebuild their houses damaged by fire, flood, or other things. The 1976 program required that houses damaged in excess of 75 percent of the fair market value of the replacement cost had to meet conformity. This current program does not have that provision. It basically says that people can rebuild in -kind, provided that they start within 18 months and meet the other conditions. In most nonconforming situations, people aren't able to conform. The lot configurations are such that the houses aren't able to conform. The feasible alternative test almost does not apply in most cases. People will be able to rebuild in -kind, provided they commence within 18 months and didn't expand the footprint. Brenner asked if people with bigger lots that can accommodate a conforming use would have to change everything, including their pipes, wiring, driveways, and foundation. Clancy stated this program is one of the more permissive programs in the state with regard J Whatcom County Council, 9/9/2008, Page 4 1 to nonconforming structures. She can't imagine a situation where people would not be 2 allowed to rebuild the same structure. One situation when the feasible alternative may 3 dictate a change is if everything is completely destroyed, including the foundation, and 4 there is nothing at all is left. If there were a feasible alternative to build something else, 5 the feasible alternative language may dictate not rebuilding in -kind. 6 7 Other concerns have been raised 'during the past few days regarding the issue of 8 nonconforming lots. Statements have been made that these code changes will make and 9 create more nonconforming structures and lots. That's true to an extent. Anytime there is 10 a new code amendment, they generally create some nonconforming situations. That 11 happens any time they update building codes. They've taken that into account. They've 12 crafted specific provisions to provide relief to those situations. Single family residential 13 development is allowed a 2,500 square -foot building footprint within the buffer, through an 14 administrative approval, without a variance, to provide relief for those nonconforming lot 15 standards. 16 17 Crawford stated that provision allows 2,500 square -feet for the full building 18 development, including landscaping, not just the footprint. Clancy stated that is correct. 19 20 The nonconforming standards were developed and subject to numerous public 21 hearings. They worked with a citizen advisory committee and technical advisory committee 22 over a period of one and a half years to develop the draft program, the public hearings, and 23 the public comment period prior to Council adoption in February 2007. Ecology has 24 changed none of that. There is nothing new that Ecology requires that affects 25 nonconformity. 26 27 There are also concerns about buffers and setbacks. It is true that there is now a 28 100 -foot buffer on lakes, 150 -foot buffer on rivers, and a 150 -foot buffer on marine 29 shorelines. Those buffer standards went into effect in 2005, when the County adopted the 30 critical areas ordinance. The Shoreline Master Program adopts the critical areas ordinance 31 provisions by reference, including those buffer standards. Nothing in Ecology's required 32 changes affects those buffers, which have been in effect since 2005. There are provisions 33 to allow some buffer adjustment and reduction, with a variahce, through the SMP. 34 35 There have been statements that public access is required on private lands. That is 36 not true. The public access provisions apply primarily to public lands and public entities. 37 They apply to private lands if there is a major subdivision or commercial development, 38 where the development creates a demand for public access. The County can look for 39 opportunities to provide public access on those types of private developments, if it's 40 compatible with the adjacent land use or if there are no safety, health, or ecological 41 impacts. Public access, in the SMP, means both visual access and physical access. Saying 42 that public access is required doesn't necessarily mean that people will walk across private 43 property. It can mean that the owner provides a view of the water from the property. 44 45 Nothing in the current Ecology changes are triggering these concerns. Most of these 46 issues were already the subject of public comment, public testimony, and ample 47 consideration during the development of the SMP, prior to February 2007. 48 49 Weimer stated that while people had concerns about how the County adopted the 50 Ecology provisions in August, those provisions didn't apply to many of this stuff, which went 51 through a public process in 2005 for the setbacks and 2007 for the SMP. Those are not new 52 things the County Council did in August. The comments from Ecology were about different 53 things. Whatcom County Council, 9/9/2008, Page 5 Brenner asked for a summary of what happened and what can result from this hearing tonight. She's confused about what they do with the information from this hearing. Crawford asked what would happen if the Council did not adopt the shoreline ordinances on the agenda tonight. Legally, this is Ecology's plan. He asked how the County Council could say not now. Gill stated this program is effective as of August 8. If the County Council wants to make changes following this hearing, the County would send those changes and the entire program through a public process, including the Planning Commission, local adoption, and then Ecology approval. Crawford stated that is a two -year process. He asked what happens if the County doesn't adopt these tonight. He asked what Ecology will do. Barry Wenger, Washington State Department of Ecology Senior Environmental Planner, stated he's been working on shoreline matters for Ecology for 23 years. He's worked with Whatcom County on its shoreline plans since 1993. Ecology spent more than $660,000 developing the critical areas ordinance and SMP for Whatcom County. He's the local Ecology staff that the County works with. He's alarmed at the fear that's been unnecessarily generated over this program at this point in time. He is also a taxpayer and landowner in the county. When Ecology required the changes through the Washington Administrative Code (WAC), those changes came to the County. The County accepted the changes except for a couple of them. State law says that becomes effective as a State law the day Ecology gets the acceptance letter from the County, which was August 8. The County passed this by ordinance .one and a half years ago. Now it's different, based on Ecology's changes. The County must reconcile those changes. If the County doesn't reconcile the differences, it's still State law. State law supercedes the local ordinance. There has been a misconception that they've tried to jam this through. The day after Ecology sent its letter of changes to the County, the Supreme Court decided that critical areas ordinances are not applicable in shoreline jurisdictions unless they are adopted as part of the shoreline program. 'There was discussion about the injuries of not having critical areas ordinance protection for several months while the County looks at that issue. According to State law, the County had up to 30 days to respond. However, he told the County to take its time. It's a great plan that's gone through an enormous amount of public input and community input. It's very fair. There is a lot of flexibility for private property owners, specifically single family residence owners. To honor the local process, they wanted to take time. However, the County had to weigh that option against what may have been vested in the few months of the last part of the building season. The Council chose to go forward. Since then, they've taken a closer look at any possible glitches, and found none. Over the next six months or a year, little things may pop up. (Clerk's. Note: End of tape one, side A.) Wenger continued to state that amendments can go through the local and then the State process, which will take several months, not several years. If the County wants to make minor amendments and corrections, they will go to the top of his workload because the Whatcom County has already gone through the full process. Other jurisdictions that haven't gone through the full process will have to wait. Whatcom County Council, 9/9/2008, Page 6 Crawford asked where the County stands if it doesn't pass the ordinance, pending those changes. Wenger stated the regulation is still State law, effective August 8, regardless of what the County does. It's still approved. The County would have to change its ordinance to reconcile it with State law. Weimer stated that the Council may take any comments and start the amendment process, which would take a number of months for the County to work through and another four to six months for Ecology to amend the plan, most of which they approved in 2007. Wenger stated that is correct. The only thing they can discuss at this point in time is Ecology's proposed changes, not the entire plan. Brenner stated she had asked earlier this summer about doing changes to what the County Council passed in 2007. Peter Gill told her that wasn't the time to do it. Wenger stated that is correct. He had the formal submittal from the County, to which he had to respond. He spent a lot of time analyzing it with the State's attorneys general to make sure there were no takings issues, unconstitutional issues, or other issues. Making a change or addition in the middle of the process would not have been a good idea. He's not sure if they would have accepted it. This is a State law that is approved by both the County and the State. The State is allowed by law to make changes consistent with the WAC and Shoreline Management Act. That's what they've done. Weimer asked if the County may start collecting proposed amendments to the plan whenever it wants, to start its own amendment process. Wenger stated it may. He will put those amendments through the State process first thing, since the County has already gone through the comprehensive process. If things aren't working, they can be changed. Brenner stated that Mr. Wenger did tell the Council that he wasn't concerned about the County waiting to give approval until after its public hearing. It was a 4 -3 vote of approval that night. The County submitted what it adopted in 2007. However, Ecology brought new things forward, including things brought forward the day of the vote. She thought they had the option to bring things forward. Wenger stated he agrees that there is a back - and -forth between the County and Ecology to make sure everything is clear and consistent. Kelly asked if it's fair to say that over 90 percent of the SMP they're talking about tonight was approved in February 2007. Wenger stated that 99 percent of the plan was adopted then. Kelly stated 99 percent of this plan went through public process and was approved by a different County Council in February 2007. Ecology's changes represent one percent of that regulation. Wenger stated Ecology's changes represent less than one percent of a change. Nelson stated a one percent change may impact someone's life, home, and livelihood. It's significant. The County Council should be concerned about and aware of it. Weimer stated that's why they're having a public hearing tonight. Wenger stated that if a house burns down, it can essentially be rebuilt in the same place, unless it's on a bluff that's falling away and it creates a safety issue. Weimer opened the public hearing and the following people spoke: Whatcom County Council, 9/9/2008, Page 7 Peter Buck, 2030 1s' Ave, #201, Seattle, stated he is an attorney representing a number of clients. They can say no to this. The County can also say it was mislead. They have made a terrible mistake. There is a suggestion that there are rumors out there are not wrong. However, the rumors are right. The Council has been mislead. People have made a mistake. The Council can start the process of correcting mistakes right now. Mr. Wenger said he would process the changes quickly. Ecology took a year and a half to process these. Ecology brought them to the County in August, simultaneous with the Supreme Court decision on critical areas ordinance. It was suggested to the Council that a house burned down can be rebuilt on the footprint. That is contrary to County code. SMP section 23.50.070.F says one could rebuild if there is no feasible alternative that allows for compliance with the provisions of this program. Most houses are about 50 feet back from the shoreline, but have a 150 -foot setback. A feasible alternative is that the house be rebuilt 150 -feet back. That's what the program says. That's what people have to do. There is no suggestion that people can build in the footprint. Also, look at section 23.05.070.I. The Council has been mislead about what that section says. Finally, talk of a variance is misleading. In this State, no one can get a shoreline variance. The County can't grant a shoreline variance. It's granted or denied by Ecology. Ecology's standards are impossible to meet. Matt Stock, 2030 1ST Ave, Seattle, stated that as uniform requirements for many shoreline property owners, the buffers violate the Revised Code of Washington (RCW) 82.02.020, as recently interpreted by the State Court of Appeals. The case is Citizens Alliance for Property Rights vs. Sims, dated July 7, 2008. He described the case and court's rationale. The restriction failed to satisfy the statute's proportionality requirement. There was no impact specific analysis. A 2002 State Supreme Court case struck down a development restriction on identical grounds, lack of proportionality. RCW 82.02.020 does not permit conditions that satisfy a reasonably necessary standard for all new development collectively. The statute requires that a condition be reasonably necessary as a direct result of the proposed development. The take -home message from these cases is that imposed development regulations must be related to and proportional to the particular proposed development. It needs to be impact- specific. That's where the SMP runs into problems. The buffers don't take into account what is actually happening on the ground. Also, the SMP development cap for 2,500 square feet for non - conforming lots bears no proportionality. Read and review these cases. Make the necessary provisions to bring this SMP into compliance with State law. Brenner asked if all buffers have to be site - specific. Stock stated that is the interpretation of the Court of Appeals and the State Supreme Court. Brenner asked if that is for all kinds of cases. Stock stated it is. Dannon Traxler, 709 Dupont Street, Bellingham, stated there are procedural issues with the process used to enact the SMP. There was a complete lack of public notice before approval of the Council's August 5 resolution, which is a violation of the Shoreline Management Act. She read RCW 90.58.120. There was no public hearing prior to department enactment of this program. For something to take on the force of law, the Council must follow its Charter in conjunction with the Shoreline Management Act. The Charter says that resolutions do not have the force of law and only ordinances have the force of law. Therefore, the Council could have only procedurally approved Ecology's Whatcom County Council, 9/9/2008, Page 8 1 revisions and ultimately enacted the SMP by ordinance. Therefore, the SMP cannot be in 2 effect according to the rules found in the County's Charter. The County Code is clear about 3 the procedure for adopting ordinances. She read the procedure. Council approval and 4 discussion of Ecology's revisions were not Introduced on the Council agenda before the 5 August 5 meeting. The SMP was not published in its entirety. There was no publication of 6 any revised document anywhere, until after the revisions were approved and implemented. 7 The Bellingham's Herald public notice didn't say anything about this ordinance or resolution 8 going into effect. People thought they would have the opportunity to speak at this public 9 hearing before the SMP were enacted. That opportunity has not happened. This affects 10 many property owners. Give a voice to the constituents. The 2008 SMP is open to legal 11 challenge on procedural grounds. 12 13 Brenner stated someone said this is not a County law, so the County Charter 14 requirements don't apply. Traxler stated the laws have to apply. The County Council has to 15 follow the County Charter and code, as well as the Shoreline Management Act. 16 17 Lylene Johnson, 1215 Old Fairhaven Parkway, Suite E, Bellingham, stated she 18 doesn't know if she will be able to replace her house if it burns down. She and her family 19 bought land on Lummi Island in the 1970's. When the original Shoreline Management Act 20 was passed, the setback wasn't appropriate. The Hearing Examiner changed the setback 21 for her property. Her family began to build the house on Lummi Island in 1980, and 22 finished in 1983. Now she lives in Bellingham, but has kept the house. They are fighting to 23 keep the house. If they cannot rebuild the house if it's destroyed, it's the same as if the 24 County condemned the house. When making the decision, look at how the regulations 25 affect individuals and their properties. 26 27 Gena Stremler, 535 E. Hemmi Road, Lynden, stated she is a lender for Peoples Bank. 28 Banks may not issue loans on questionable property if the borrower cannot rebuild. If 29 someone needs to refinance a home, and their insurance or ability to rebuild is 30 questionable, this loan would not be sellable on the secondary market. Therefore, she 31 would deny the loan. They may lend on the land only, based on the relationship with the 32 owner. She is not comfortable lending on homes in this situation. 33 34 Nelson stated other things cause nonconforming use. He asked if banks issue loans 35 to nonconforming uses with a permit. Stremler stated they do for a legal nonconforming 36 use, and the appraiser indicates that the best use at the time is residential in nature. They 37 can sell the loan on the secondary market as long as they're advised that it can be rebuilt to 38 its same standard as the appraisal in the file. 39 40 Brenner asked if there could be a loan if the house could be rebuilt in a different 41 location. Stremler stated it wouldn't be built according to the same appraisal. They know 42 things occur, and homes change. If they don't have the assurance up front, investors are 43 struggling already. They can't add suspect collateral to the housing market. 44 45 Crawford asked if lenders would consider the feasible alternative. Stremler stated 46 she makes her judgment up front. Something that happens ten years down the road is an 47 insurance issue. They wouldn't call the loan due in full. Her paperwork must show that the 48 house can be rebuilt where it is, as per the original appraisal, or else she can't sell the loan. 49 50 Kelly asked if Ms. Stremler is testifying on behalf of People's State Bank that People's 51 State Bank won't issue the loans according to her comments. Stremler stated she is not. 52 She is a lender for the bank, and the bank has agreed that she could speak. She does not 53 represent legal counsel for People's Bank. Whatcom County Council, 9/9/2008, Page 9 Kelly asked the message from People's State Bank. Stremler stated they would have to ask the bank's owner. Caskey- Schreiber stated it's good to hear from the perspective of a lender. However, she doesn't see the issue, after hearing Ecology, County staff, the Plan's author, and councilmembers all affirm that a person can rebuild a house right where it is, other than feasible alternative. They've heard from three different people that feasible alternative would apply when a house is likely to fall off a cliff side due to something like erosion. Stremler stated a compromise would be to define feasible alternative. Caskey- Schreiber stated that could be a good amendment. That's a good idea. Bill Quehrn, Building Industry Association (BIA) of Whatcom County Executive Officer, described the history of the County's involvement in this project. The BIA asked volunteers from its membership to participate in the process. A compromise evolved on several elements to bring the new document forward. The BIA's concerns have always been that enforcement would prove to be the standard by which it would be measured. The Executive's task force, the general public, and several councilmembers had not seen or reviewed Ecology's mandated changes on August 5. There was no need to rush on August 5, because Whatcom County has had a shoreline protection ordinance on the books since 1998. In spite of the changes adopted by resolution, the act of adoption was questionable under the County Charter. That night, the Council was given the choice between the needs of the environment and the needs of the people. The Council chose to err on the side of the environment. However, elected officials are elected by the people to serve the needs of the people. The needs of the people deserve equal consideration. He's reviewed the changes from Ecology, which came forward very fast. The ability to rebuild is still not clear. The amount of property that could be stripped from an owner and language about public access is also confusing. Therefore, the BIA and others joined forces to encourage citizens to be. here tonight. They purchased advertisements in the Bellingham Herald from the Association's general funds as a public service to the community, since the Council didn't do a public notice. The ad did not suggest that property owners should oppose or support anything. The public has the right to ask questions. Sufficient time should be allowed to examine the questions. People have a right to know about and participate in the decisions made that affect their lives. Mary Dickinson, Building Industry Association of Whatcom County Governmental Affairs Director, stated she submitted written testimony this afternoon. Through February 2007, the shoreline process was positive and collaborative. Unfortunately, Ecology did nothing with the plan until it panicked in response to the July 31, 2008 Supreme Court decision, which separates the critical areas ordinance from the SMP. The August 5 meeting on the resolution was not a hearing. It was a regular Council meeting. Many didn't even know that discussion would occur. There are concerns about violation of the County Charter. There is a significant change to nonconforming uses in Ecology's 13 pages of changes. In the 2007 regulation, a building area would be at least 2,500 square feet. Ecology's regulations now limit the building area to not more than 2,500 square feet. That is a significant change. She questions how nonconforming status corresponds with the Whatcom County Council, 9/9/2008, Page 10 Shoreline Management Act requirements for the protection of single family residences. She referenced RCW 90.58.100.6. There may be new legal issues, mentioned by Mr. Stock. They must take parcels on a case -by -case basis. There are new, odd things about public access being required. She asked if private lands in the Conservation Reserve Enhancement Program (CREP) are subject to providing public access, since the trees are publicly subsidized trees. Tim Volwiler, 1050 Larrabee Avenue, Ste. 104, Bellingham, stated he is in favor of protecting natural resources. Shorelines need to be protected. They provide ecological functions. They should have restrictive zoning. The zoning should be more restrictive than the rest of the county. They are critical to natural species. They should have management approach similar to the Lake Whatcom drinking water provisions. Protect the critical resource with designated regulations for a particular region. There should be a more in- depth permitting process than the rest of the county. That would include nonconforming uses in the future. If there is new information and new science, landowners should have to deal with the new regulations in effect during a rebuild. Setbacks, residential footprint, and impervious surface limits are appropriate land management for these areas. He's interested in Chuckanut Bay and Governor's Point as saltwater shorelines. Protect the shallow areas surrounding the shorelines. Be very hesitant about approving major changes on the shoreline. He is opposed to construction of marinas, high density housing, and desalination at Governor's Point. Those uses should not be grandfathered to regulations from 40 or 50 years ago. Many people are here because of a flyer taped to mailboxes. If Ronald Jepson wants to make a political mailing, he can mail it. He and others shouldn't go around and putting it on mailboxes without permission and stirring people up with scare tactics. Perry Eskridge, Whatcom County Association of Realtors Government Affairs Director, stated he's never before been accused of misleading the public. This was a collaborative effort among many people. They spent two years on this regulation. They knew this program inside and out. The realtors did agree to some of these provisions. That was before they were hit with Ecology's changes. He couldn't believe they were hit at the last minute with the changes after two years of a collaborative process. They have said people can build a house in the same place. However, Mr. Buck's comments demonstrate what is exactly said in the regulation. If the regulation allows a rebuild in the same footprint, the regulation should say that. As the language is now, it's clear that any feasible alternative is required. Ecology provided an entire new Appendix right before its meeting on August 5. It's brand new language. People didn't have a chance to comment on it. That's distressing. They must question who is protecting whom. Tonight's hearing is for naught. It is a procedural irregularity. Now they have to play catch -up to get back to where they thought they were. They are not protecting the environment's rights they are protecting. They are protecting the people's rights. The Council didn't hear the people's voice. Rick Haggen, 2433 Northshore Road, Bellingham, stated many people are concerned about the decision. Think about whether they have to make this decision tonight. Get more information. The people want to trust what the Council is going to do and that it hears the people's concerns before taking action. Ron Morgan, 3251 Northshore Road, stated referenced the language about a feasible alternative. There are many situations in which someone will not be able to build in the original footprint. If the land goes back 100 feet, people will be told to move beyond that Whatcom County Council, 9/9/2008, Page 11 100 feet. If the purpose is to allow a rebuild in the original footprint, the regulation should say that. Michelle Luke, 3342 Sunrise Cove, Lummi Island, stated the clarification isn't sufficient. There is no confidence in this plan. She is a shoreline property owner of a home built in 1950. Regulations have become more. restrictive. In that time, they've been respectful of her property rights and vested status, until now. Property rights don't change. The assault on property rights in this plan are gross negligence or the purposeful dismantling of the Constitution. (Clerk's Note: End of tape one, side B.) Luke continued to state that there has been shoreline development all over the country and world. The basis for any plan must use the constitutional outline set forth in the people's County charter and State and federal constitutions. Don't make Whatcom County liable for a lawsuit with this radical experiment. Correct and amend the plan. Follow the constitutional process. There is no confidence in this plan. Edward Sanger, 3205 Sunset Way, Gooseberry Point, stated his property has been in the family for 40 to 50 years. An 800 square -foot cabin was built about 40 years ago. He applied for permit to put a manufactured home and garage on property. Through the Shoreline Master Program, nine different agencies had to approve. He was only allowed landscaping, driveway, and a house on 2,500 square feet. All these years, the property has been landscaped. The law now is confusing. Consider the property owner. This has cost him thousands of dollars. He had to hire an attorney. The councilmembers were elected to represent the people of Whatcom County, not the environmentalists. Jim Kolbo, 4017 Mayne Lane, Ferndale stated he owns a home on the water. His house was built according to the code at the time. He received a variance for his dock. These rules, if adopted, will make his home nonconforming. Also, if this is approved by resolution instead of ordinance, the County Planning Department cannot enforce any of the rules. Anyone who suffers damages has the right to sue the County. The County Council has not legally gone through the public process. Therefore, any decisions will be moot. If that happens, he will personally make sure something happens legally to countermand that action. Patrick Alesse, 4825 Alderson Road, stated development far from Terrell Creek affects its flow and erosion. Activity off the creek, not just along it, is important. He's concerned about property he owns losing value in the future. Don't make a decision on this until the Birch Bay residents make a decision on the Birch Bay Water and Sewer District outfall. Jake Smith, citizen, stated the statutes in this area create a logjam. Send Barry Wenger back to Ecology so he can start taking out the feasible alternatives from the wording in the ordinance. From what he's heard, the rumors about the ordinance are not wrong. Send it back to Olympia for two months. Don't burden the Planning Department with reasonable and feasible alternatives. Lee First, RESources and North Sound Bay Keeper, stated she is in favor of the final draft of the Shoreline Master Program (SMP). She is in favor of integrating the SMP with the critical areas ordinance. She is in favor of wider buffers and the ten -foot setback in the final draft. Whatcom County Council, 9/9/2008, Page 12 1 Jay Saxton, 801 -16th Street, Bellingham, stated that as a boater, he sees a lot of 2 development along the shorelines. He supports the SNIP. Governor's Point is one of the 3 most beautiful places in the area. Many of the landowners in this room tonight profit from 4 having those beautiful views. Poor development controls make them look like a poor 5 country. Washington has poor development controls. Larger setbacks are to everyone's 6 benefit. There is a lot in the ordinance that is good. Vote for the ordinance. 7 8 Janice Schuch, 1411 W. Axton Road, Ferndale, stated two councilmembers are 9 directly impacted by this ordinance. They share the same waterway she is. She wants it in 10 writing that she can rebuild her home on its footprint if it burns down. Potential 11 homeowners are being denied mortgages because insurance companies say the homes 12 don't insure the homes that become nonconforming. The people have to have that 13 assurance in writing. Speculative land purchases for increased profits at a later date are a 14 gamble. They don't need to uphold their speculation. 15 16 Mike Kent, 5631 Nakat, Birch Bay, stated the Council should delay making a decision 17 on this. He received a copy of the demand to cease and desist enforcement of this 18 regulation. The language is ambiguous. He wants it in writing that he can rebuild his house 19 the same if it burns down. A neighbor has had difficulty building on her waterfront 20 property. This is a taking. If the square footage is restricted, the value goes down. If 21 there had been adequate notice of this meeting, many more people would have shown up to 22 testify. 23 24 Loralee Brakke, 585 Pleasant Bay, stated she has worked on the shoreline 25 committee. She wonders how many people have actually read the document. She 26 previously submitted her comments and amendments in writing. Her suggestion for 27 amendment one is important. This law has been in effect since 1971. This law was put into 28 effect because the citizens of the state of Washington recognized the valuable nature of the 29 resource. According to Mr. Kent, people want to maximize their square footage. That is at 30 the expense of the public resource, which is a taking. The public has a right to clean water, 31 clean air, shellfish, navigation, and the surface of the water. Those things aren't negotiable. 32 They have a Shoreline Management Act that is a compromise. The public is willing to give 33 up limited amounts of access and view corridor. Those are the rules and regulations. The 34 people attending are here because they got excited when someone said something about 35 their houses burning down. She read through the ordinance. It clearly says that one may 36 rebuild on the original foundation. Put back the heart and soul of this document. The 37 councilmembers are elected to represent laws, not people's rights to increase their 38 footprints. 39 40 Chuck McCord, 3365 Robertson Road, stated the Growth Management Act was 41 started in 1971. It was a good law. He has been a realtor since 1981 and specializes in 42 waterfront properties. He also lives on the waterfront. These rules are ridiculous. 43 44 Many lots aren't 200 feet deep, so there is a problem with the setbacks. Many are 45 400 feet deep, and won't accommodate a driveway. His driveway is 4,000 square feet. 46 People will end up driving on the grass. 47 48 Also, don't take away the grandfather clause. Trying to change the laws from 20 or 49 50 years ago is the same as trying to change the constitution. That isn't right. Laws 50 agreed upon and sanctioned years ago should stay the way they are. 51 Whatcom County Council, 9/9/2008, Page 13 He also has a problem with the $5,600 limit for a remodel before the rules kick in. He doesn't agree with Mr. Wenger. They don't have a deal yet because Ecology changed the document. That makes the agreement void. Dennis Jones, 1487 Sudden Valley, stated in response to Mr. McCord, he has a 4,000 square -foot lot. The Council made an amendment to allow a pervious driveway. No one is taking away the grandfather clause. The ads and flyers distributed are a lie. The SIHP was already tied to the critical areas ordinance for Lake Whatcom. It is Ecology's turn to be before the firing squad. The councilmembers took an oath to support codes, plans, and budgets. Ecology found, at the last minute, that the ordinance wasn't within State code. The County has to go by the State code. This legislation isn't enough for the Lake Whatcom area. This type of hate - mongering with, lies has got to stop. He would work together with the members of the Building Industry Association (BIA) and real estate industry. Jack Louws, 301 Edgewater, Lynden, stated he,has a lot in Birch Bay on which he plans to build a full -time residence. The subdivision was approved many years ago. When approved, the County expected the owners of the lots to build residences. The values of these lots have increased while the vested rights to build upon them have diminished over the years. He thought his rights were grandfathered. This legislation may kill his property rights. Don't adopt the ordinance tonight. Work with the landowners on a balance between environmental needs and property owners' rights. These are potable lots. There should be no reference to properties losing their vested rights to rebuild within a specific time period. It takes longer than 18 months to get a permit on regular property. Add strong clarifying statements to eliminate confusion and misunderstandings. Ecology has taken more than a year to respond to the County with its comments. Don't adopt tonight. Ecology took a great deal of time to address the public need for environmental stewardship. That is its mandate. The County Council should take the time to, ensure the rights of the constituents as property owners. Betsy Brinson, 1811 C Street, Bellingham, stated she has been two and a half years into an application for a variance so she can apply for a building permit on her property on Lake Whatcom. One requirement is that all of her landscaping be done in native vegetation. However, she wasn't given a list of what that is. No such list exists. Also, clarify whether the 2,500- square foot limitation applies to the footprint and includes driveways and landscaping. The definitions need to be clearer. Ron Jepson, 222 Grand Avenue, Bellingham, stated he is an engineer and land surveyor. There is confusion about the ordinance, and the public needs to provide more input. He owns 60 acres at Sandy Point. The original setback from the canal was 45 feet. Now it's 150 feet. If property isn't developed right away, it may never be allowed to be development. According to an attorney who spoke earlier, the setback had to be related to the impact on the water body. The canal is full of houses on the other side. His house would have no more effect. This ordinance is still questionable. Ken Wilcox, 3900 Frasier Street, Bellingham, stated he supports the ordinance. He is a former County planner in the late 1980's who worked on the shoreline plan. He agrees that the language about feasible alternatives is vague and needs to be clarified. Clarify and be more specific about instances in which someone will have to move. Also, the County has to look out for the taxpayers in terms of being sued. If there isn't an appropriate standard, they are all vulnerable. With the exception of a few minor issues, he likes the program overall. Whatcom County Council, 9/9/2008, Page 14 Charlie Gorsuch, 5480 Tswassin Loop, Birch Bay, stated he just completed a process for a property on Terrell Creek. It took two and a half years of being treated like a criminal by the County. There were issues with the property. They finally got the property taken care of. The County doesn't know how to interpret the plan in terms of mitigation. It's trying to make him do things that aren't in the plan. County staff doesn't have answers to his questions. Also, the mitigation fee went from $800 to $3,000. No one told him of this change. He did everything he was supposed to do, but he wasn't treated well by the people who are supposed to serve him. Nelda Sigurdson, 5171 Ferndale Road, stated her family has given land four times for the road and built part of the dike. Now, Ecology is going to tell them how to manage this land. She's tired of picking up trash from the public on her property. Don't fence them in anymore. She objects to being prohibited from cutting blackberries on the river side of the dike. They need to see what is happening during flood times. (Clerk's Note: End of tape two, side A.) Willard Purnell, 3769 Sinclair Drive, Sandy Point Heights, stated this legislation is ridiculous. It doesn't allow slight adjustments to a home for safety reasons. Don't make steadfast, unreasonable rules. Another issue is vegetation. As written, it's a hazard to shorelines. It allows tree growth over four inches in diameter. The trees grow, build an under - story, and then cause landslides. They need to allow tree cutting at the top and over the bank at the direction of professionals. They need to open the under - story. Blackberries and ivy are two of the biggest hazards to banks along the shorelines. This ordinance is a property taking. Linnea Smith, 2808 Leeward Way, stated this is a taking. Properties become unbuildable lots. If government is going to take property rights, it should pay. This affects many people who are not speculators, but who have small lots for retirement or for their children. Bob Wiesen, 3314 Douglas Road, Ferndale, stated the process looks like a backroom deal between some councilmembers and Ecology. This ordinance went through long public process with Ecology at the table, and Ecology never mentioned any of these 13 pages of mandatory changes. They are being bullied by Ecology by spending a year to come up with these required changes and requiring the County to approve them in 30 days. Ecology is trying to get cities and counties to exceed their legal authorities. It looks like they are mixing the critical areas ordinance and SMP. Legal challenges will come. There will be future unintended consequences that aren't so unintended. People who have participated in process feel betrayed. David Dickinson, 4100 Legoe Bay Road, Lummi Island, stated he bought property in the 1970's. When he bought the land, he was told to never let the tidelands go, because the land was patented by the United States before Washington State became a state. It has rights that other lands don't have. This legislation doesn't require moorage for longer than 60 days. According to Article 7, section two, of the Washington State Constitution, which gives up tidelands patented by the United States. Also, according to the Submerged Land Act, he has vested title ownership to the tidelands he owns. That includes the right to manage, administer, lease, develop, and use certain lands. Bill Henshaw, 2653 North Park Drive, Bellingham, stated the Council rushed to judgment when presented with changes by Ecology. There was no opportunity for public review. The Council must address substantial changes. The shoreline management plan Whatcom County Council, 9/9/2008, Page 15 1 was originally designed to promote the residential enjoyment of the shorelines and to allow 2 water - related businesses to be located there with certain restrictions. The latest version of 3 the plan by Ecology several years ago changed all that by adding restorative things. Don't 4 try to blend the critical areas ordinance and SMP. They are supposed to be separate. The 5 critical areas ordinance is supposed to handle the protections. The shoreline master 6 program is to deal with providing access to the water for residential and business use. 7 Environmental concerns are only one of 13 aspects of the Growth Management Act. They 8 are ignoring all the others in favor of the environment. 9 10 Kris Heintz, 3411 Robertson Road, stated she cannot remodel her house because 11 they've changed the setback buffers to 150 feet. She's now a nonconforming use. She will 12 have to go through a lengthy permit process for a remodel, which doesn't harm the 13 environment. Citizens have a right to certainty. They should be able to make changes to 14 their households. The threshold for remodels is too low. Permitting shouldn't take two 15 years. The Planning staff don't know what the law is supposed to be. It will take up 16 Planning staff and resources to develop nonconforming use permits when someone just 17 wants to remodel. That's not right. 18 19 Jim Dickinson, 2094 West Shore Drive, Lummi Island, stated there wasn't proper 20 notice about this. His house was built in 1890 and can't go any further back from the water 21 than what it is, because a road is in the way. Another issue is public access when public 22 monies are put into shoreline projects. The language could easily be construed to allow 23 public access to his beach. A staff person can interpret the language that way. As soon as 24 this is adopted, people will demand access to his beach. This regulation puts property in 25 jeopardy. He will have to police the public and clean up after them. This is a taking. The 26 patent on his property is superior to any local jurisdiction. 27 28 Richard Seversen, Robertson Road, Bellingham, stated he is very unhappy with the 29 plan. He asked how they are going to enforce these regulations. He just heard about this 30 two days ago. 31 32 Jeff McKay, 4693 Sucia Drive, stated most issues have been covered. The shoreline 33 plan is being referenced as a State law. The resolution is being referenced as an ordinance. 34 He's not worried about his house burning down. However, every house within 150 feet of 35 the waterfront will require a variance to remodel. He doesn't owe anyone in a kayak a 36 view. He owns the property. 37 38 Roger Almskaar, 233 S. State Street, Bellingham, stated he agrees with the folks 39 that they must protect the environment. However, they also need places to live and work. 40 Therefore, create a set of rules that are clear, fair, and workable. This regulation doesn't do 41 that. Most of his concerns are in the nonconforming use and definitions sections. Leave the 42 record open and not pass tonight. DOE is not allowing a person to square up the front of 43 their house toward the water if they have an offset. It says they have to go by the existing 44 foundation. That is an excessive regulation. There are requirements to landscape most of 45 the lot with native vegetation. He will write a letter with all his concerns. 46 47 Ron Young, 1198 Northwind Circle, Bellingham, stated clarity and understanding is 48 critical. County staff try to do their best, but when new staff is hired, the interpretation of 49 the rules change. He's worked with four different critical areas staff. Each has a different 50 personality, textbook, year of graduation, and attitude. Maps show a salmon spawning 51 stream on his property, but he lives at the top of a hill, and there is no such stream. When 52 he told staff that it was a mistake, he was told that he had to prove the mistake rather than 53 staff accepting there was no spawning stream. It costs $200 for staff to look at the site. Whatcom County Council, 9/9/2008, Page 16 Some of the staff have attitude. Different levels of staff experience are giving the rules to the public. Therefore, the clarity of the legislation is very important. Bruce Montegani, 6893 Holeman Avenue, Point Whitehorn, stated he owns a shoreline property. As staff in the Planning Department change, the requirements for building his home have changed. No one understands the current Shoreline Management Plan. The laws must be clear. Make sure the rules and how they're applied are consistent. David Parsons, 2208 Samish Way, Bellingham, stated he urges the Council to not adopt the ordinance tonight. He has a recreational lot on Lummi Island that is less than 200 feet deep. This is a taking. He has no value left in this land. Give the ordinance more consideration. Allow a variance. Do some advertising. Many people will be adversely affected. It isn't fair. There should be a reasonable grandfathering clause or timed variance. Get more input from those affected. Tom Miller, 2236 Tuttle Lane, Lummi Island, stated he is concerned about language regarding feasible alternatives. He had two lots on Lummi Island that were consolidated under the cover of darkness. County staff told him that the County doesn't have the responsibility to tell anyone anything. If something happened to his house, he wouldn't be surprised if he wasn't allowed to rebuild. Address that issue. Don't leave it to chance. Bernice Brannan, 4145 Patos Drive, Ferndale, stated she speaks for Sandy Point residents who are not at this meeting and did not know about this meeting. They've been waiting for water, and will not now be able to build because of this 150 -foot setback. The people in favor of this are not financially or emotionally affected. She's here to protect her property and rights. Todd Granger, 2101 West Shore Drive, stated every legislative act shall be by ordinance. Resolutions do not have force of law. The councilmembers gave an oath to support the Home Rule Charter. The County hasn't done this right from day one. He hasn't had enough time to read it. James Richard Costello, III, 903 Chuckanut Shore Road, stated he bought his property for retirement three years ago. There was an existing home on the property. He fought with the shoreline regulations for many years. His water was shut off, and he had to fight with the City about that. He began construction about a year ago. They were not going to allow him to build on this property. They wanted him to go back 75 feet, but decided not to go back that far. He had to put in natural vegetation along the front 20 feet of the property, which allowed him to build. With these new setbacks, he would have had to build on the road. The lot is small. Make things clearer and easier to understand. Make a decision based on the word of the people. Hearing no one else, Weimer closed the public hearing. Brenner stated the Council should wait until they can read the written comments. They had been told all along that people could rebuild on a footprint, as long they stay on the footprint. Extra wording was added to make that clearer, but it wasn't clearer. She asked if they could delete the phrase "feasible alternative" and add "unless there is a clear and imminent public safety crisis" without going through the amendment process, since that was everyone's intent from the beginning. Barry Wenger, Washington State Department of Ecology (DOE), stated that is what it already says. One has always been able to rebuild a nonconforming structure. However, a Whatcom County Council, 9/9/2008, Page 17 single family residence is a conforming use. It is a priority shoreline use. It's the use they want on the shoreline. The concern about loans wouldn't come into play. Since 1971, there have been setbacks. Houses built before that, which closer to the water, are nonconforming structures with a conforming use. Those houses have been funded and given loans for 37 years. If someone's house burns down, they will be able to rebuild unless there is some safety factor. They can clarify that. He'd have to look at the exact language. If they have to do an amendment, they'll do an amendment. The language as it is now is similar to the language they've had since 1993. He supports the clarification. He doesn't know yet if it will have to go through the amendment process. (Clerk's Note: End of tape two, side 8.) Weimer asked if the regulations adopted in February 2007 and in August 2008 is already in place and is the law in the county right now. Karen Frakes, Prosecutor's Office, stated they are. Weimer asked if the Council can consider comments longer and not pass anything at this meeting. Frakes stated it can. Weimer moved to refer to the Natural Resources Committee for further review. He's heard a number of things about landscaping included in the 2,500 square feet feasibility alternatives, nonconforming use for remodels, and other things. Get to the bottom of those questions and decide whether or not to bring forward amendments. Also, keep the written public record open for the next two weeks. Nelson asked if variances would have to go through DOE or through the County. Wenger stated conditional uses and shoreline variances would go through DOE. The conditional use criteria are much easier to get through than shoreline variances, for which owners have to prove a hardship. Nelson asked if the DOE, not the County, approves all the variances. Wenger stated the County has to approve it first. The process can take up to 30 days. The State is required to process them within a certain timeframe. Many times he gets them done in one or two days. The process can't take more than 30 days. Regarding buffers, there are four different ways they can reduce buffers and setbacks, according to the administrative provisions. The built -in criteria are flexible. Nelson stated it was unfortunate that they received this at the last minute. If they refer the issue to committee, he hopes Mr. Wenger will attend to help address the issues. There are still significant issues to consider. Brenner asked if the Council can approve legislation via a resolution instead of an ordinance. Frakes stated this is different from most legislation because it's a combination of County enactment and State law. State law supercedes local law. The County doesn't have control over the fact that State law has put this into effect already. Brenner asked about how the County Charter allows the Council to pass legislation. She asked that someone explain that to her legally. She doesn't understand how the Council majority can pass it via resolution, and it became law that day. Whatcom County Council, 9/9/2008, Page 18 Fleetwood stated Revised Code of Washington (RCW) describes the process by which the Shoreline Management Programs become law. It's not a code. It's not about enacting a County ordinance. After the County gets it back from Ecology, the local government, which doesn't necessarily mean the legislative authority, shall signify its approval. The County Council signified its approval on August 5, 2008, by resolution. It's a State law. Crawford suggested a friendly amendment that the Natural Resources Committee also consider the amendment proposed by BP Cherry Point Refinery to Title 23.100.017.A.7. Weimer accepted the friendly amendment. He is not setting a date for when this will be scheduled in the Natural Resources Committee. The Planning Committee may also discuss it. Motion to refer to the Natural Resources Committee carried unanimously. (Clerk's Note: The Council took a ten - minute break at 10:22 p.m.) 3. ORDINANCE AMENDING WHATCOM COUNTY CODE, TITLE 23, SHORELINE MANAGEMENT PROGRAM,, REMOVING THE ADMINISTRATIVE PROCEDURES FROM THE SHORELINE MANAGEMENT PROGRAM (AB2008 -302) Crawford asked Planner Peter Gill about whether they are deleting or replacing the administrative rules. Peter Gill, Planning and Development Services Department, stated they are removing them from the document the Council adopted February 2007 and adopting them as a local ordinance, separate from the shoreline program. They are exactly the same provisions and process. That way, the County can change the administrative rules without going through the State process. Crawford asked if these rules can be adopted even though the other ordinance was held in committee. Karen Frakes, Prosecutor's Office, stated the Council can. Weimer stated the Council hasn't received any comments on this item. Brenner stated people haven't commented because they felt like the two items are connected. Weimer opened the public hearing and, hearing no one, closed the public hearing. Caskey- Schreiber and Fleetwood moved to adopt the ordinance. Brenner moved to table this item. People left this meeting feeling that the discussion regarding the Shoreline Management Program will take place later. In case anyone has concerns about this part of the ordinance, leave it until the next Council meeting. If they don't hear from someone, she will support adoption at that time. Fleetwood withdrew his motion to adopt. Whatcom County Council, 9/9/2008, Page 19 Caskey - Schreiber moved to adopt the ordinance. They had three hours of testimony. No one referred to this section. She's comfortable going forward. The councilmembers know the citizens' concerns. Brenner moved to table this item. Motion to table failed 1 -6 with Brenner in favor. Motion to adopt carried 6 -1 with Brenner opposed. 1. ORDINANCE AMENDING WHATCOM COUNTY CODE TITLE 20, CHAPTERS 20.71 AND 20.80, ON AN INTERIM BASIS, TO ADD LAKE PADDEN AS A WATER RESOURCE PROTECTION OVERLAY DISTRICT, STORMWATER SPECIAL DISTRICT, AND WATER RESOURCE SPECIAL MANAGEMENT AREA (AB2008 -094A) Weimer opened the public hearing and, hearing no one, closed the public hearing. Caskey- Schreiber moved to adopt the ordinance. Motion carried 6 -1 with Crawford opposed. 2. ORDINANCE (INTERIM) FOR THE UR AND URM ZONING DISTRICTS IN THE BELLINGHAM URBAN GROWTH AREA RELATING TO DENSITY, LOT CLUSTERING AND RESERVE TRACTS (AB2008 -108A) Weimer opened the public hearing and, hearing no one, closed the public hearing. Fleetwood moved to adopt the ordinance. Crawford asked for assurance from the Planning Department that this is the exact same interim ordinance that the Council adopted six months ago. Weimer stated Planning staff acknowledged, that the ordinances are the same. Motion carried unanimously. 5. ORDINANCE AMENDING WHATCOM COUNTY CODE 15.04, BUILDING CODES, REGARDING FEE FOR APPEALS TO THE COUNTY COUNCIL (AB2008 -300) Weimer opened the public hearing and, hearing no one, closed the public hearing. Crawford moved to adopt the ordinance. He asked if they've ever had an appeal in recent years. Dana Brown - Davis, Clerk of the Council, stated there was one (inaudible). Crawford asked if this item is to set the framework for collecting the fee, but doesn't determine the fee amount. Brown -Davis stated the fee will be in the 2009 Unified Fee Schedule. Motion carried unanimously. Whatcom County Council, 9/9/2008, Page 20 CONSENT AGENDA Nelson reported for the Finance and Administrative Services Committee and moved to approve Consent Agenda items one through 14. Brenner withdrew items four, ten, and 12. Motion to approve Consent Agenda items one through three, five through nine, 11, 13, and 14 carried unanimously. 1. REQUEST APPROVAL FOR THE EXECUTIVE TO ENTER INTO A CONTRACT FOR SERVICES BETWEEN WHATCOM COUNTY AND SHEARER DESIGN, LLC FOR THE DESIGN OF CLEARBROOK ROAD JOHNSON CREEK BRIDGE NO. 302 REPLACEMENT IN THE AMOUNT OF $82,595.70 (AB2008 -308) 2. REQUEST APPROVAL FOR THE EXECUTIVE TO ENTER INTO A LEASE AMENDMENT FOR THE COPPER BUILDING IN THE AMENDMENT AMOUNT OF $61,200.00 FOR A TOTAL AMENDED AMOUNT OF $328,251.90 (AB2008 -309) 3. REQUEST APPROVAL OF A QUIT CLAIM DEED FOR TRANSFER OF HORTON ROAD DETENTION DAM PROPERTY TO THE CITY OF BELLINGHAM (AB2008- 310) 4. RESOLUTION AUTHORIZING THE DEMOLITION OF 895 SMITH ROAD STRUCTURE (AB2008 -311) Nelson reported for the Finance and Administrative Services Committee and moved to approve the resolution. Brenner stated she doesn't agree with the summary of the problems with the building. The graffiti is expected. The building isn't in as bad of shape as they've portrayed. Allow the option for someone to move the building. Crawford stated the Sheriff's Office used the building for SWAT team training exercises, and destroyed everything inside. The County asked potential movers if there is any salvage value. The County was told there was not any salvage value. Brenner stated she disagrees about the value. Motion carried 6 -1 with Brenner opposed. S. REQUEST APPROVAL FOR THE EXECUTIVE TO ENTER INTO A LEASE AGREEMENT BETWEEN WHATCOM COUNTY AND SUN COMMUNITY SERVICES FOR LEASE OF PROPERTY AT 525 E. CHESTNUT STREET IN BELLINGHAM, WA (AB2008 -312) 6. REQUEST APPROVAL FOR THE EXECUTIVE TO ENTER INTO A CONTRACT BETWEEN THE COUNTY AND NORTHWEST YOUTH SERVICES FOR THE WHATCOM COUNTY JUVENILE COURT TRUANCY PROJECT IN THE AMOUNT OF $70,000 (AB2008 -313) Whatcom County Council, 9/9/2008, Page 21 7. RESOLUTION REQUESTING AUTHORIZATION FOR THE EXECUTIVE TO REQUEST RECONVEYANCE OF STATE FOREST BOARD LANDS IN THE ACME AREA FOR PARK PURPOSES IN THE AMOUNT OF $5,000 (AB2008 -314) S. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ACCEPT A DONATION OF 1,200 FEET OF BEACH AND TIDELANDS ON LUMMI ISLAND FOR PARK PURPOSES FROM HAROLD AND JUDY ELDRED AND THE ESSEX FAMILY LLC (AB2008 -315) 9. REQUEST AUTHORIZATION FOR THE COUNTY EXECUTIVE TO ENTER INTO A PURCHASE AGREEMENT AND CONSERVATION EASEMENT WITH THE WHATCOM LAND TRUST FOR THE ACQUISITION OF 54.1 ACRES OF PROPERTY AT POINT WHITEHORN FOR PUBLIC PARK PURPOSES IN THE AMOUNT OF $375,000 (AB2008 -316) 10. REQUEST APPROVAL TO AWARD BID 08 -57 TO SOLE BIDDER PAPS MACHINERY FOR THE PURCHASE OF A TRUCK MOUNTED DITCHING MACHINE IN THE AMOUNT OF $285,905 (AB2008 -317) Nelson reported for the Finance and Administrative Services Committee and moved to approve the request. Brenner stated the County had one of these machines a number of years ago. Staff recommended then that the County get rid of it for another kind of machine. Now the County has this other machine. Spending this kind of money is cavalier. It would be a great idea if the County didn't already have the other machine. Nelson stated that because of the National Pollutant Discharge Elimination System (NPDES) requirements, the County has many more stormwater management responsibilities. The County used to have three machines, but chose not to replace one at the time. Now they are replacing the third machine. The money has been budgeted and approved. Caskey - Schreiber stated they are all aware of the budget situation and concerned. However, there are repercussions to not maintaining ditches, such as flooding. The Public Works Department staff do a good job trying to keep up with all the ditches. She supports this item. Brenner stated she agrees with Councilmember Caskey- Schreiber, but the County doesn't need this machine to do that maintenance. They already have machines to do ditching and cleaning. Buying this now is extravagant. Notion carried 6 -1 with Brenner opposed. 11. REQUEST APPROVAL TO AWARD BID 08 -58 TO LOWEST BIDDER, KENWORTH NW, FOR REPLACEMENT OF THREE 10 -YARD DIESEL DUMP TRUCKS IN THE AMOUNT OF $514,861.74 (AB2008 -318) 12. REQUEST APPROVAL TO AWARD BID 08 -59 TO LOWEST BIDDER, VALLEY FREIGHTLINER, FOR REPLACEMENT OF SINGLE AXLE TRUCK WITH 4 -WHEEL DRIVE, SANDER AND PRE - WETTING SYSTEM IN THE AMOUNT OF $136,710.33 (AB2008 -319) Whatcom County Council, 9/9/2008, Page 22 1 Nelson reported for the Finance and Administrative Services Committee and moved 2 to approve the request. 3 4 Brenner stated this is a replacement, but they don't need to replace it now. They 5 can contract this service. Most contractors have this kind of equipment. The County 6 doesn't have to keep adding to and replacing the fleet, especially with things that aren't 7 used much. The County can create a contract with contractors that the contractors must 8 respond to the County on- demand. 9 10 Caskey- Schreiber stated the administration is surplussing a lot of equipment. Some 11 of those funds could offset big purchases. 12 13 Brenner stated the Council allows the administration to surplus things that are in 14 excellent condition. Just because something is surplussed doesn't mean that it no longer 15 has a useful life. 16 17 Nelson stated the administration put this service out for bid, and got no responsive 18 bidder. 19 20 Mary Green, Public Works Department, stated they annually go out for bid for 21 outside contracted equipment. Because they had issues getting equipment during the last 22 snow removal period, the staff specifically included snow removal equipment in the March 23 bid. They asked for trucks, plows, and pre -wet. The County received zero bids. The bid 24 went out to all the contractors in Whatcom County. She can provide the list. 25 26 She understands Councilmember Brenner's comments, and thinks that bids will come 27 through again eventually, given the tough economic times. At this point, no one was 28 interested in snow removal. 29 30 Brenner stated she's heard otherwise from contactors. She will follow up. She will 31 vote against this for now. 32 33 Crawford asked if the County generates a little revenue from renting these machines 34 out to other jurisdictions. Green stated she tries very hard to make those things happen as 35 much as they can. 36 37 Notion carried 6 -1 with Brenner opposed. 38 39 13. RESOLUTION TO SET HEARING AND NOTICE OF HEARING FOR THE SALE OF 40 SURPLUS COUNTY PROPERTY BY PUBLIC AUCTION (AB2008 -320) 41 42 14. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO ENTER INTO A 43 CONTRACT BETWEEN WHATCOM COUNTY AND WILSON ENGINEERING, LLC 44 FOR THE MUNICIPAL SEPARATE STORM SEWER SYSTEM (MS4). FACILITY 45 MAP IN THE AMOUNT OF $86,277 (AB2008 -307) 46 47 48 OTHER ITEMS 49 50 1. RESOLUTION AUTHORIZING THE COUNTY EXECUTIVE TO PURCHASE 51 DEVELOPMENT RIGHTS ON THE BAUTHUES FARM PROPERTY IN THE 52 AMOUNT OF $124,900 (AB2008 -306) 53 Whatcom County Council, 9/9/2008, Page 23 1 Weimer reported for the Natural Resources Committee and moved to approve the 2 resolution. 3 4 Motion carried unanimously. 5 6 7 OTHER BUSINESS 8 9 Weimer reported for the Natural Resources Committee and stated the committee 10 received a status report on the Lake Whatcom land reconveyance process (AB2008- 11 074). This issue will come to the Council on September 23 in the Natural Resources 12 Committee as a special work session. 13 14 Mike McFarland, Parks and Recreation Department Director, stated reconveyance is a 15 two step process. The first step is the inter -grant process. An interagency agreement and 16 memorandum of understanding will come to the Council for approval. He explained the 17 process. 18 19 Brenner stated the memorandum of understanding means that the County wants to 20 do this. They must have a hearing before they make that decision. 21 22 Pete Kremen, County Executive, stated they aren't finalizing anything. The 23 memorandum is just a statement of validation to attempt to come to an agreement over a 24 very long period of time, more than a year. There will be much time devoted to public input 25 and participation. It is not a vote to conclude the reconveyance. 26 27 Brenner stated it is a vote to move forward and a statement that the County wants 28 to do the reconveyance. 29 30 Nelson stated they must understand that all the Council is approving is looking at the 31 opportunity. They can't have a public hearing until they know the exact facts they're 32 dealing with. McFarland stated that in addition to the memorandum of understanding, there 33 will be an interagency agreement, to contract the State Department of Natural Resources 34 (DNR) to move forward. That is the expense. He doesn't know yet when the interagency 35 agreement will come forward, however the two go hand -in -hand. 36 37 38 OTHER ITEMS 39 40 2. ORDINANCE AMENDING THE 2008 WHATCOM COUNTY BUDGET, NINTH 41 REQUEST, IN THE AMOUNT OF $694,325 (AB2008 -299) 42 43 Nelson reported for the Finance and Administrative Services Committee and moved 44 to adopt the ordinance. 45 46 Motion carried unanimously. 47 48 3. RESOLUTION IN THE MATTER OF CONSIDERING VACATING A PORTION OF 49 JOHNSON ROAD (AB2008 -322) 50 51 Brenner reported for the Public Works and Safety Committee and moved to 52 approve the resolution. 53 Whatcom County Council, 9/9/2008, Page 24 Motion carried unanimously. 4. ORDINANCE LIMITING THE SIZE OF LARGE COMMERCIAL RETAIL ESTABLISHMENTS WITHIN WHATCOM COUNTY (AB2008 -112A) Fleetwood reported for the Planning and Development Committee and moved to adopt the ordinance. (Clerk's Note: End of tape three, side A.) Brenner stated the change from 75,000 square feet to 35,000 square feet is a big change. She supports a limit down to 65,000 square feet, but not that small. Crawford stated this applies just to the General Commercial zones. Brenner asked about the light industrial zones north of Ferndale. David Stalheim, Planning and Development Services Department Director, stated the light industrial and gateway industrial zones already have a 35,000 square foot limits. They aren't changing anything for commercial retail. They aren't changing anything that is already in the code. Brenner stated the Planning Commission supported a limit of 65,000 square foot limit. The Planning staff felt the limit should be 35,000 square feet without sewer and water. Stalheim stated the 35,000 square feet is the existing standard in the code for light industrial zones. The Planning Commission discussed the water and sewer requirements for that size of commercial retail, which can't exist without public water and sewer. It's not possible to drill a well or have septic systems for those areas outside the urban growth areas. Motion carried 5 -2 with Brenner and Crawford opposed. 5. CONFIRMATION OF THE EXECUTIVE'S APPOINTMENT OF GARY LYSNE TO THE VETERAN'S ADVISORY BOARD (AB2008 -323) Caskey- Schreiber moved to confirm the appointment. Motion carried unanimously. OTHER BUSINESS Weimer reported for the Planning and Development Committee and stated they have formed the Growth Management Coordinating Council, a requirement under the Growth Management Act. They must send a letter to the State Department of Community, Trade, and Economic Development (CTED). Ms. Craven drafted the letter. He asked for approval to send the letter to CTED. Crawford moved to send the draft letter to CTED. Motion carried unanimously. Whatcom County Council, 9/9/2008, Page 25 OTHER ITEMS 6. CONFIRMATION OF THE EXECUTIVE'S APPOINTMENT OF HARLEY DRAVEN TO THE AMERICAN'S WITH DISABILITIES ACT COMPLIANCE COMMITTEE (AB2008 -324) Caskey- Schreiber moved to confirm the appointment. Motion carried unanimously. INTRODUCTION ITEMS three. 1. 2. 3. Nelson moved to accept the Introduction Items, including the substitute for item Caskey- Schreiber withdrew Introduction Item three. RECEIPT OF AN APPEAL FILED BY MUSSIO REGARDING MOTION FOR RECONSIDERATION AND MOTION TO DISMISS FOR LACK OF STANDING ON APL2008 -0004 (AB2008 -286) ORDINANCE AMENDING THE 2008 WHATCOM COUNTY BUDGET, TENTH REQUEST, IN THE AMOUNT OF $1,732,763 (AB2008 -325) RESOLUTION ADOPTING THE WHATCOM COUNTY 2009 ANNUAL CONSTRUCTION PROGRAM (AB2008 -321) Brenner moved to increase the Birch Bay Lincoln Road phase one project amount for right -of -way acquisition to $100,000 total for the purchase of right -of -way. Staff should start working out right -of -way agreements with people. The amount is a token, but it's a better token than the $15,000. Frank Abart, Public Works Department Director, stated this will not be good for the ending fund balance, but it's not the end of the world, either. The impact of this amount is inconsequential. It's very unlikely that this increased amount will make the project get done any sooner. Brenner stated the money will be spent one way or another. Begin to get serious. Some people along that one -mile stretch of road haven't even been contacted. Also, the original engineering designs included a simple design. She asked why they have to budget $15,000 for engineering. Put that money instead to right -of -way acquisition. Abart stated they are going for a little over $2 million in funding for the project from the County Road Administration Board (CRAB). If successful, the County will then have the money to go forward and start with right -of -way acquisition and moving utilities. He's not sure why they would buy the right -of -way without knowing if they will receive funding. This is for the 2009 budget. If the Council approves the additional money, the department won't be able to spend the money or pursue the right -of -way until January 2009 anyway. By then, they will know if the County has received that funding grant. They will find out about the additional funding by the end of October. Whatcom County Council, 9/9/2008, Page 26 Brenner stated the original engineering for the project included three scenarios. She restated and clarified her motion to amend to spend up to $100,000 on right -of- way acquisition. Weimer stated the motion is to add $85,000 to bring the total up to $100,000 total for right -of -way acquisition. Motion to amend carried 5 -2 with Kelly and Crawford opposed. Crawford stated the amount in the substitute chart is incorrect. Motion to accept all Introduction Items, including amended item three, carried unanimously. 4. RESOLUTION TO SELL SURPLUS COUNTY PROPERTY BY PUBLIC AUCTION (AB2008 -320A) 5. RESOLUTION APPROVING THE POINT ROBERTS WATER DISTRICT #4 COMPREHENSIVE WATER SYSTEM PLAN UPDATE (AB2008 -326) 6. ORDINANCE IMPOSING AN INTERIM MORATORIUM ON THE ACCEPTANCE OF NEW APPLICATIONS FOR DIVISIONS OF LAND RESULTING IN LOTS SMALLER THAN FIVE ACRES WITHIN THE LAKE WHATCOM WATERSHED (AB2008 -114A) OTHER BUSINESS Brenner reported for the Public Works and Safety Committee and stated the committee had a discussion regarding vacating rights of way in the Geneva area (AB2008 -326) with County legal counsel. Legal counsel said that the Council doesn't have the right to approve these types of quiet title items. She asked if that is correct. Fleetwood stated it's a cause of action. Crawford stated a person could file and record a document that claims something. That's a quiet title action. A quiet title action has nothing to do with a road vacation. The County is saying the person should just go record it. However, the County shouldn't be in any position to recommend that, in case someone files a quiet title wrongfully. That would be a liability for the County. However, it has nothing to do with a road vacation. Brenner stated this is about a property on which the County had a right -of -way, which was supposedly never opened. Crawford stated the County is saying it doesn't have that property. Brenner stated it's very difficult for someone to prove that the right -of -way wasn't opened. Today, legal counsel provided his reasons for his recommendation, based on the maturity of surrounding trees. However, the area is Geneva. The fir trees mature in 40 to 60 years. She wants to know the policy. She asked if the Council has any right to say that the County shouldn't let property go. Whatcom County Council, 9/9/2008, Page 27 1 Dewey Desler, Deputy Administrator, stated the administration relies on the 2 expertise of Civil Attorney Dan Gibson. 3 4 Brenner asked for the opinion in writing. 5 6 7 REPORTS AND OTHER ITEMS FROM COUNCILMEMBERS 8 9 Crawford stated he won't be able to attend the meetings next week or in two weeks, 10 and would like to be excused. Also, he wanted to coordinate a tour of Paradise and Peaceful 11 Valley with staff. 12 13 Caskey- Schreiber stated they can pick a date for the tour at the next water 14 resources work session next week. 15 16 Crawford stated choose one of the first two Saturdays in October as the date for the 17 tour. 18 19 20 AD30URN 21 22 T meeting adjourned at 11:25 p.m. 23 24 2 5 26 Jill Nixon, Minutes Transcription 27 28 The Council approved these minutes on October 21 , 2008. 29 30 ATTI;$►�.%%111 31 32 \ \\ ••'...'•�G�si 33 ��� O.•F W HATS; ���. 34'� ,� 7Y 35 = ' 36 DanerrBSvis, Courgil Clerk y DaOF WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Carl Weimer, Council Chair Whatcom County Council, 9/9/2008, Page 28