Loading...
HomeMy WebLinkAboutNatural Resources October 21 2008WHATCOM COUNTY COUNCIL Natural Resources Committee October 21, 2008 Committee Chair Carl Weimer called the meeting to order at 9:30 a.m. in the Council Chambers, 311 Grand Avenue, Bellingham, Washington. Present: Absent: Seth Fleetwood None Bob Kelly Also Present: Barbara Brenner L. Ward Nelson Sam Crawford COMMITTEE DISCUSSION AND RECOMMENDATIONS TO COUNCIL 1. 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 (AB2008 -303) Weimer asked if this ordinance is to adopt what the Council approved by resolution in August. David Stalheim, Planning and Development Services Director, stated they are adopting what the Department of Ecology did on August 8. He read his memo beginning on Council packet page two as a staff report for all three agenda items. Staff recommends three things. First, confirm the Department of Ecology decision of August 8, 2008, approving the shoreline program through adoption of the ordinance as presented on September 9, 2008. There are slight scrivener changes to that ordinance. Second, amend the administrative procedures ordinance adopted on September 9, 2008 to provide the authority to the Planning and Development Services Department staff to approve shoreline conditional use permits. Third, adopt a resolution requesting that the County Executive reconvene the Shoreline Citizen Advisory Committee to address limited issues brought forward in the public comment process. Focus that review on specific areas, as outlined in the memo. Staff recommendations are based on substantial issues regarding single family homes and issues that came forward during public testimony. Brenner asked why they adopted the regulations in 2007 by ordinance and by resolution in 2008. It didn't become State law until the Council passed a resolution. She doesn't understand that. Stalheim stated shoreline management is a State law. It did not become State law on August 5. It became State law on August 8, when the Department of Ecology accepted what the recommendation from the County, embodied in the resolution the Council passed on August 5. Natural Resources Committee, 10/21/2008, Page 1 Brenner stated that what the Council passed in 2007 was an interim land use regulation, adopted by ordinance. Stalheim stated it wasn't an interim land use regulation. The shoreline management jurisdiction only applies when it is adopted by the State Department of Ecology. The ordinance sat on the books until the Department of Ecology went through its process. The County did not implement anything from the 2007 ordinance until August 8, 2008. Brenner stated the Council has received information from the Planning and Development Services Department and other places that said this has been the law since 2007. Stalheim stated it was an action of the Council since 2007. It was not the law since 2007, as it applied to development projects. All projects between February 2007 and August 8, 2008 were reviewed under the shoreline management program in effect prior to February 2007. Nelson stated the ordinance is a law. It's a County law. He asked if the Planning and Development Services Department did not implement a County law. Stalheim stated the department did not, because the County doesn't have jurisdiction in shoreline areas, except when signed by the Department of Ecology. The Shoreline Management Act makes clear that the jurisdiction and the final authority for shoreline management is the only land use law in the State of Washington that is signed into effect by a State agency. Nelson asked why the County bothers with this. Stalheim stated the process begins at the local level. The County passes the process on to the State Department of Ecology. He explained the process. Brenner asked if the County can adopt regulations that are more stringent than State law. Stalheim stated it cannot for shorelines. The Supreme Court decision recently decided that counties can't have both the Shoreline Management Act and critical areas ordinances regulate shorelines. The Ecology Director has final authority over what's in the Shoreline Management Plan. Brenner stated there has been correspondence that the County has been enforcing what was adopted in 2007. Stalheim stated the only recommendations staff made about the 2007 ordinance were things that were already in the program for a long time. Brenner stated that if the County didn't do it by its own system of laws in the county, she's not sure they can start from this spot. Weimer stated that whether or not they like it, Ecology has made its State law, so this is where they start from. Crawford stated he thought they've already adopted this. Also, regarding the second agenda item, getting an advisory committee involved will take another year. The Council should just make the suggested change itself. This process has taken a couple of years already, and has been a very public process. Weimer stated the hearing was held open in September, for adoption this evening. He asked if they are obligated to reform a committee. Stalheim stated they are not obligated. It may be helpful to have the public input go through the committee. They may have to send changes back through the Planning Commission process. Fleetwood stated there was an enormous amount of public process between 2004 and 2006. There were 43 open public meetings. He asked if they've reviewed the minutes Natural Resources Committee, 10/21/2008, Page 2 to see if some of these concerns have already been vetted. Stalheim stated he has not read those minutes. Nelson asked if the State requires that it go through the Planning Commission and the local process. Barry Wenger, State Department of Ecology, stated it's a unique law implemented locally and through the State. The local jurisdiction starts the process to develop the master program, but the State Department of Ecology approves it, and it becomes a State law. An amendment is required to go through a full public process, which the County just did, then minor amendments don't have to go through the process again. Nelson asked why it would go through the Planning Commission if it's a State process. Stalheim stated the Planning Commission is required to review the program. Minor edits under the original review process may not need to go through the Planning Commission. That is up to the Council's discretion. Crawford asked if the Council majority could approve one amendment only, by resolution, to remove the language on the destruction of the structure. He asked if that one change would require the process to start over, or simply be a requested change without a yearlong process. Stalheim stated the process is up to the Council. It has that discretion. Wenger stated how amendments are formed are up to the Council. It just must be adopted by the Council. Look at the old master program. It has language that addresses that issue exactly. He would prefer to reinstate that language. Ecology already approved that language previously. Fleetwood asked if the Council could bring in the 1998 language to make amendments, and have it done in a few weeks. Wenger stated it's up to the Council, and what it approves. Brenner asked if the Council could revert back to the old language from 1998 on that subject as an administrative interpretation of the law, rather than run it through the State process. Wenger stated attorneys approved his written interpretation on that topic. He would be fine with that interpretation, as a stop -gap measure until they can do the amendment. The Council should do a minor amendment. Stalheim stated there are other issues that staff wants to look at. Brenner stated this language was just for clarification. The other things the staff want to look at will take more time. Do the clarification first, because it shouldn't take an amendment. Weimer stated the Council cannot amend the language. The County already has clarification from Ecology that someone may rebuild a house at the same location if it burns down. They already have that covered. To make it clear in the shoreline plan, they must change the language, which includes an amendment. It makes sense to do these list of changes at the same time. Doing them one at a time will slow them down. Brenner asked if they can do a clarification locally by calling it a scrivener's error. Wenger stated that any language change requires an amendment. A scrivener's error is a typo. The Washington Administrative Code (WAC) allows administrative interpretations in consultation with Ecology for these regulations. Natural Resources Committee, 10/21/2008, Page 3 Nelson stated an administrative interpretation isn't done that simply. The reconstruction process must commence within 18 months. It also has to be permitted to be commenced. An owner may not get all the permits in 18 months. Shorelines has a building limitation because of stormwater determinations. Make sure permitting language is in there. Stalheim stated this is why staff wants to go through the amendment process for these kinds of items. They need to have clear language. Interpretation is a positive step, but it's not up to what the language should be. An amendment is necessary. Wenger stated not one person in 20 years has been prohibited from rebuilding a house that burned down. He agrees that they need to make the language clearer. Brenner asked what happens if the County Council doesn't adopt the ordinance at the local level. Stalheim stated it doesn't change anything. It's State law. Brenner stated hold in committee until they can clarify the language. Weimer asked if it makes any difference whether or not they do it tonight or wait until they put the five to seven changes through the advisory committee. Stalheim stated it doesn't make any difference, from his perspective. Wenger stated it doesn't make any difference to him. Peter Gill, Planning and Development Services Department, submitted information (on file) and read the handout about the scrivener's error. The text was not in the 2007 program that the Council adopted, and it was not reviewed by the Department of Ecology, and it was not a change from the Department of Ecology. Somehow, through the iterations, it was left in there and needs to be removed. Weimer stated the correct language in the handout was adopted in 2007 and submitted to the State. Gill stated that is correct. It was inadvertently included in the 2008 version, but it was never submitted to Ecology. Wenger stated the correct text is currently in effect in State law. Gill stated these changes would have to go through the amendment process. Weimer stated they will have to add it as an item for the advisory committee. Kelly stated he supports an advisory committee if the intent is for that advisory committee to educate the public. If the intent is to readdress issues that may lead to rule - making, he doesn't support it. The County has gone through the process of shoreline review, which it must do every few years, from the ground up. The process got very confusing, probably because of a lack of communication. He's not in a big hurry to adopt the ordinance, but convene a group of folks to re- educate the public. Weimer asked if the committee would look at the items that are clearly defined in the memo. He asked if Planning and Development Services Department staff can instead provide draft language on those things and hold a public hearing on those things. Stalheim stated it would be less staff - intensive to work directly with the Council. The value of the citizen committee is to work more closely with the public. Natural Resources Committee, 10/21/2008, Page 4 1 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 Brenner stated more education isn't going to help. The process is confusing. The confusion came with how this was done, not by people not understanding the rules. (Clerk's Note: End of tape one, side A.) Brenner continued to state that they won't get committee members on a committee to educate people. She doesn't understand how they got here. Nelson asked if the reason for the ordinance is to adopt the critical areas ordinance with the shoreline plan. He's concerned about the connection between the shoreline management program and the critical areas ordinance. Don't do anything on this until they have draft amendments. Stalheim stated the critical areas ordinance is not in effect in shoreline areas. Shoreline protections can't be any less protective than critical areas ordinance. The way to do that is to refer to the critical areas ordinance. They are pulling those protection standards into the Shoreline Management Plan by reference. Fleetwood asked if the citizen advisory committee is ready to go. Stalheim stated they would have to call existing committee members to see if they intend to continue to participate. Fleetwood stated public education would be a side benefit of the advisory committee, but its primary purpose is to review and make recommendations on amendments as needed. Charge the advisory committee with a limited number of select issues with clear parameters and a clear timeline. If it goes through the Planning Commission, also give clear direction to the Planning Commission. This process went on from 2003 to 2006. The amount of public process that already happened is unbelievable. Ninety -nine percent of the plan is really good and they all agree on it. Commit to improving these few items. There is no need to adopt the ordinance tonight. Make improvements to it over the next few weeks. Weimer stated he prefers to skip the committee process. It's State law. They've identified nine things that need clarity. Get staff to draft corrections and put them directly to the Council, which should agree to them easily. They don't need to convene a committee. Hold the ordinance until staff brings language forward. Crawford stated run that concept past Civil Deputy Prosecutor Karen Frakes. Kelly asked if the advisory committee would make recommendations. Stalheim stated the advisory committee would look at the subjects and make recommendations. Brenner asked if language from item one of the incorrect text in the handout was folded in somewhere else. Stalheim stated it was taken out because it's already provided for in the legislative Act. Weimer moved to ask Planning staff to develop draft language to address these items, hold the ordinance in committee, and pass it all at once, after a public hearing. Motion carried unanimously, 2. RESOLUTION REQUESTING THAT THE COUNTY EXECUTIVE RECONVENE THE SHORELINE CITIZEN ADVISORY COMMITTEE TO REVIEW AND, AS NEEDED, Natural Resources Committee, 10/21/2008, Page 5 1 RECOMMEND AMENDMENTS TO THE SHORELINE MANAGEMENT PROGRAM AS 2 REQUESTED (AB2008 -351) 3 4 See agenda item one for discussion of this item. 5 6 7 COMMITTEE DISCUSSION 8 9 1. ORDINANCE AMENDING ADMINISTRATIVE PROCEDURES FOR THE 10 WHATCOM COUNTY SHORELINE MANAGEMENT PROGRAM (AB2008 -352) 11 12 See agenda item one for discussion of this item. 13 14 David Stalheim, Planning and Development Services Director, stated the 15 administrative burden may go down, so this may eventually not be necessary. It doesn't 16 minimize any protections. The same criteria apply, and go through the staff, which make 17 recommendations to the State Department of Ecology, which has final approval. This 18 ordinance doesn't change anything substantive. They won't have to schedule things before 19 the Hearing Examiner. It replaces a $2,000 application fee with a $600 fee. Staff won't 20 have to write so many staff reports. Staff will just have to review applications and make 21 decisions. 22 23 Fleetwood asked if the Planning Director has the authority to make decisions on 24 conditional use permits when a public hearing is not required, and that the Hearing 25 Examiner would still rule on those cases in which a public hearing is required. Stalheim 26 stated it would grant authority to staff to approve conditional use permits. The Hearing 27 Examiner is required only when a shoreline non - conforming use is changed to another non - 28 conforming use. 29 30 There are other protections regarding the value of a project. If there is considerable 31 public concern when the notice is sent out, they can begin a public hearing process through 32 the Hearing Examiner. Now, some of the single family homes are required to go through 33 the conditional use permit process, which automatically triggers a hearing before the 34 Hearing Examiner and associated high fees. Those are the types of cases they are trying to 35 handle administratively. 36 37 Brenner asked why they don't make the changes in the ordinance. Stalheim stated 38 this process for change will be quicker. Waiting for the State Department of Ecology to 39 amend the program will take months. This administrative change will take weeks. The 40 administrative provisions are local, and don't have to go through the State Department of 41 Ecology. 42 43 Weimer moved to recommend introduction to the full Council. 44 45 Motion carried unanimously. 46 47 48 PUBLIC COMMENT ON AGENDA ITEMS 49 50 Laura Lee Brakke, 585 Pleasant Bay Road, stated this law is about preserving and 51 protecting a public resources. Protect the salmon. The confusion is because people are 52 fanning the fires of fear for personal profit and bigger houses. She is a voice for the public Natural Resources Committee, 10/21/2008, Page 6 resource that doesn't have a profit motive. The people who are calling are thinking all about themselves. Think about the threatened public resource. Laurence Quinlivan, 2327 Northsore Road, stated it's about property rights. People have a right to property rights. They all leave a carbon footprint. Pretty soon, they will all be paying for that carbon footprint. Anyone who wants to reconstruct within the shoreline has to get a variance. He got a shoreline variance in 1992. He asked if his variance is still in effect. Bob Wiesen, 3314 Douglas Road, stated the interpretation of what they're approving is the problem with this procedure. Staff seems to be reinterpreting what is approved. Staff doesn't interpret the intent when the legislation is written. Interpretations change daily. They need to be clear and write things that can't be misinterpreted. Wendy Harris, Silver Beach, stated the shoreline management program (SMP) process has been clear to now. The public process and plan was well- thought out. The law was enacted. When questions arise about what the law means and how it's interpreted, the normal procedure is to ask for a legal interpretation or get clarification from Ecology. She doesn't understand this confusing process. The Council doesn't have the authority to override what the State has done. If there are questions about the plan, the Council should forward those public concerns to legal counsel and DOE for clarification. Some private interest groups, those involved in the public process and in drafting the SMP, are creating the confusion. People have a sense that they have an absolute right to use their property any way they want, and are angry at the restrictions. However, it's never been part of the American jurisprudence that people can use their property however they want. Land use is subject to restrictions in the public interest. Michelle Luke, 2242 Sunrise Cove, Lummi Island, stated her home was built legally 60 years ago. It's private property. They are protecting their home. It's frustrating to see selective implementation of regulations just in her neighborhood. Clarification is needed desperately. Nelson stated get clarification from the State legislature on how this process works. Shorelines are protected by the public. Private property abut shorelines. They've made a process in which the State protects the public domain and local jurisdictions work with people on the private property. That creates a problem with perception. The County is to help the public go through the process, protect the public domain, and also allow homeowners to maintain and protect their property. The State will have to come up with a way to either take away all public access to shorelines or recognize that the public process is protected at the local jurisdiction. The process creates this confusion. He asked how long the process takes for variances or conditional use. Wenger stated they can take no longer than 30 days. In many days, he gets them done in a day. Nelson stated the shoreline process is different, and creates confusion among property owners. Wenger stated the process has been the same statewide for 37 years. To change that process, the legislature must make the change. Brenner stated the plan is to figure out what clarifications are necessary and send them to Ecology. That's what they're talking about. Natural Resources Committee, 10/21/2008, Page 7 OTHER BUSINESS There was no other business. AD30URN The meeting adjourned at 10:48 a.m. Jill Nixon, Minutes Transcription ATTEST�L, * ", v N T • pF hq • • Darn) Bra.Wk DAvi®FCou / \ . s WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON t rk Carl Weimer, Committee Chair Natural Resources Committee, 10/21/2008, Page 8