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HomeMy WebLinkAboutPlanning August 5 2008WHATCOM COUNTY COUNCIL Planning and Development Committee August 5, 2008 Committee Chair Seth Fleetwood called the meeting to order at 3:00 p.m. in the Council Chambers, 311 Grand Avenue, Bellingham, Washington. Present: Absent: Laurie Caskey- Schreiber None Carl Weimer Also Present: Barbara Brenner COMMITTEE DISCUSSION AND RECOMMENDATIONS TO COUNCIL 1. REQUEST COUNCIL AUTHORIZATION FOR THE CHAIR TO SIGN THE FINAL PLAT MYLAR FOR SCHOLTEN SHORES LONG PLAT (AS2008 -273A) Fleetwood stated they would discuss the first three agenda items concurrently. Caskey- Schreiber asked if the suburban enclaves and limited areas of more intense rural development (LAMIRDs) are now the same thing. David Stalheim, . Planning and Development Services Director, stated areas designated as enclaves aren't consistent with the Growth Management Act. The density is vested to the zoning in effect at the time of application. The zoning has not changed in most of these suburban enclaves. One could apply for something today. Staff's next task is to review the rural element of the LAMIRDs. They will have to review those areas that are outside the urban growth areas for whether they should be a LAMIRD or whether the zone should change to a rural density. Caskey- Schreiber stated the County is still using and allowing development of rural residential, two units per acre (RR2) zoning, even though it's not an allowed zone. Stalheim stated that's correct. There is no court order requiring the County to change those at this point. The zones aren't complying with the Growth Management Act. That issue is before the Supreme Court, and is not yet fully resolved. A plat process is a two -step process. The first step is the preliminary plat, which could be five years old. Those plats are vested to the application date. Now, the Council is just reviewing whether the plat complies with conditions of preliminary approval and has all the required infrastructure. They are just running through the checklist of requirements. The Council's options are limited at final plat approval. Caskey- Schreiber asked why these approvals are now coming to the full Council. They used to just go directly to the Council Chair. Stalheim stated the Revised Code of Washington (RCW) says the legislative authority has to approve all final plats. Nothing in the ordinance gives the Chair the authority to sign final plats without Council approval. Brenner stated the Council approved something in the past that limits developers ability to get water or put in a well at those densities. It effectively downzoned RR1 and RR2 to rural, one unit per five acres (R5A). People with densities higher than one unit per Planning and Development Committee, 8/5/2008, Page 1 1 five acres have to prove they have water and sewer. Stalheim stated that is just in the 2 urban growth areas. 3 4 Brenner asked to see a copy of that ordinance with the wording that it is just for the 5 urban growth areas. 6 7 Weimer moved to recommend approval of all three plat mylar requests. 8 9 Motion carried unanimous /y. 10 11 2. REQUEST COUNCIL AUTHORIZATION FOR THE CHAIR TO SIGN THE FINAL 12 PLAT MYLAR FOR WISER REACH LONG PLAT (AB2008 -2738) 13 14 See item one. 15 16 3. REQUEST COUNCIL AUTHORIZATION FOR THE CHAIR TO SIGN THE FINAL 17 PLAT MYLAR FOR SHUKSAN HIGHLANDS PHASE I (AB2008 -273C) 18 19 See item one. 20 21 22 COMMITTEE DISCUSSION 23 24 1. CONTINUED DISCUSSION REGARDING WHATCOM COUNTY'S SHORELINE 25 MANAGEMENT PROGRAM APPROVAL (AB2008 -261A) 26 27 David Stalheim, Planning and Development Services Department Director, stated the 28 Council has options. The State Department of Ecology (Ecology) approved the Shoreline 29 Master Program. According to the Revised Code of Washington (RCW), Whatcom County 30 must agree to those changes. 31 32 One option is for the Council to accept those changes, which can be in the form of a 33 resolution. Another option is to introduce an ordinance to set the public hearing to consider 34 the amendments. That hearing would have to happen at the next Council meeting. Staff 35 drafted a resolution that accepts the changes. 36 37 (Clerk's Note: The Committee took a recess to make copies from 3:12 p.m. to 3:17 38 p.m.) 39 40 Fleetwood asked for a summary of Ecology's changes. 41 42 Peter Gill, Planning and Development Services Department, submitted the draft 43 resolution (on file). Last week, Ecology notified the County that it approved the shoreline 44 program with changes. Also last week, the Supreme Court decided on a case that 45 essentially makes the County's critical areas ordinance (CAO) ineffective in shoreline 46 jurisdictions. Now, the CAO does not apply to buffers and setbacks within shoreline areas, 47 until Ecology approves the Shoreline Management Program. 48 49 Fleetwood stated that if the Council approves of the resolution or letter approving 50 Ecology's changes, the program and protections would go into effect sooner. Gill stated 51 that's correct. 52 Planning and Development Committee, 8/5/2008, Page 2 1 Barry Wenger, State Department of Ecology, stated the letter from Ecology included 2 Attachment A, which is the legal findings and conclusions; Attachment B, which is the 3 required changes, and; Attachment C, which are the recommended changes. The County 4 staff had asked Ecology to make all the recommended changes that are now in Attachment 5 C. 6 7 Of the required changes in Attachment B, he divided them into two lists. He 8 submitted the divided items from Attachment B (on file). The first list of items from 9 Attachment B is of items that are just corrections, clarifications, and cross - references. The 10 second list of items from Attachment B is of items that are required by the Washington 11 Administrative Code (WAC). 12 13 Ecology approves of the items in Attachment C, which are recommendations from 14 the County. If the County changes those in the future, it doesn't have to go through an 15 Ecology amendment. 16 17 Gill stated the recommendations in Attachment C would allow the County to change 18 the administrative provisions without going through the State's process to amend the 19 Shoreline Program, which the WAC allows. 20 21 Wenger read through the handout entitled "Clarifications, Corrections, and Cross - 22 reference" and described each item on the list. 23 24 Weimer asked if staff agrees with all the clarifications, corrections, and cross - 25 references. 26 27 Chad Young, Planning and Development Services Department, stated they do. Most 28 of the changes provide more flexibility and expedited permit review. 29 30 (Clerk's Note: End of tape one, side A.) 31 32 Wenger referenced the handout. entitled "WCSMP Ecology Required WAC Revision 33 Summary." 34 35 Fleetwood asked if the County is obligated to adopt these items because the WAC 36 requires them. Wenger stated it is. The County has an option to tweak these items. 37 38 He read through the handout entitled "WCSNIP Ecology Required WAC Revision 39 Summary" and explained each item. 40 41 Caskey- Schreiber stated she has to attend another appointment, but approves of the 42 resolution, and Ecology's proposed changes. The Council is going to have a public hearing 43 on all this in September. 44 45 (Clerk's Note: Caskey- Schreiber left the meeting at 4:25 p.m.) 46 47 Wenger continued to read the handout entitled "WCSMP Ecology Required WAC 48 Revision Summary" and describe each item on the list, through handout page four, the item 49 beginning "Pg 157...." 50 51 Weimer asked if Shoreline staff have reviewed all the required changes. Gill stated 52 they have. They are not exactly what the County would have done in all cases, but they Planning and Development Committee, 8/5/2008, Page 3 can work with them. Staff have highlighted some that seem to be more significant than others. Wenger stated he has found two typos in his handout. The first is on page five of the "WCSIvIP Ecology Required WAC Revision Summary" handout. The language should be, "Pg 189 - Ch. 100.17.B.3 - CPMA - Critical Areas ... the provisions of Ch 23.90.0 -73...." The second typo is on page five of the "WCSMP Ecology Required WAC Revision Summary" handout. The language should be, "Pg 187 - Ch. 100.17.A.5 - CPMA - Shoreline Ecological... to read, "In recognition of the diverse and vital ecological resources in the Cherry Point Management Area, consideration of probable effects of all development proposals on shoreline ecological functions and processes should be assessed weighed with the oth ,.,. er long -term statewide °nern"e befi fits 'interests." (Clerk's Note: End of tape one, side 8.) Weimer asked if the County staff approves of the recommended revisions outlined in Attachment C. Gill stated they approve of removing the administrative provisions for more flexibility. The staff approves of the changes in Attachment C. Dannon Traxler, Langabeer & Tull, P.S., handed out information (on file) and stated they are concerned about process. People don't have a chance to comment on this. The Code requires enabling legislation by ordinance only, not resolution. The ordinance procedure is clear in the County Code and in the Washington State law enabling act for the County. It's a concern that Mr. Wenger has mentioned the CAO. Pursuant to a recent Supreme Court case, the CAO cannot regulate property in shoreline,jurisdiction at all. They should delete the references to the CAO from the shoreline program. This requires more analysis from the Council. The public should be allowed to comment. Mary Dickinson, Building Industry Association of Whatcom County Governmental Affairs Director, stated the County Council has already adopted the ordinance and can't change it by resolution. There has been no public notice. These regulations have force -of- law and are administered by staff. The County will be open to tremendous legal challenge. It's a concern that Mr. Wenger mentioned the CAO many times. The Supreme Court decision was just issued last week. Don't vote for this resolution. Instead, introduce an ordinance and have a public hearing. Go through the process correctly. Fleetwood stated the County adopted this by ordinance in 2007. They are citing RCW 90. Dickinson stated these are substantial changes to the ordinances. They change the codes, even for a brief period of time. Procedurally, they have to follow the County's process for ordinance. Fleetwood stated there is a special statute in this instance in terms of how it finally becomes effective. It requires adoption plus an additional layer of approval by Ecology, and then County approval of Ecology's recommended changes. The Council is simply indicating that it will accept Ecology's recommended changes and will adopt an ordinance. The Council is introducing an ordinance tonight that will implement these changes. Dickinson stated that the recommended changes will be adopted as force -of -law until the County adopts the ordinance. The County should instead approve of the recommended changes after it goes through a public process. Planning and Development Committee, 8/5/2008, Page 4 Fleetwood stated that if the issue is not clear, and they all agree to go through this process, they are being careful by taking this step today and triggering the effective date sooner rather than later. Dickinson stated an applicant could get stuck during those three weeks of limbo. The County may have an illegal ordinance, which was really adopted by resolution. Fleetwood stated they will find out about the correct procedure. Brenner asked what is in effect if they don't approve the resolution. Dickinson stated what is in effect now and for the next three weeks is the 1998 Shoreline Management Program. Brenner asked what would change in the interim if they go through the regular process. Fleetwood stated there is language that talks about approval of shoreline master programs. It says that if Ecology makes recommended changes, the local government may agree to the proposed changes. The receipt of that agreement, which could be a resolution, constitutes final action of Ecology in approving the amendment. If the Council passes this resolution today and forwards it to Ecology, Ecology would make the shoreline master program effective today. The plan will be effective today rather than in four or five weeks from now. Wenger stated the Shoreline Master Program becomes effective as a State law. A State law will supercede the local ordinance. The County will have to change its ordinance to become compliant with State law. Fleetwood asked the benefit of having the program effective now as opposed to being effective in five or six weeks. Wenger stated that if the program becomes effective now, they will have the protections of the critical areas ordinance, also.. Those critical areas ordinance protections become an actual part of the shoreline master program. The Supreme Court said they have to add the critical area ordinance to the program to have critical area protections in the shoreline areas after 2003. If the County doesn't approve of Ecology's recommendations today, the 1998 Shoreline Master Program, which doesn't have buffers and has the old setbacks, is in effect. Before the Supreme Court decision, since 2005, shoreline areas had both shoreline master program and critical areas'ordinance protections. Since the decision, those critical areas ordinance protections have gone away. Dickinson stated she disagrees with Mr. Wenger. The Supreme Court said that they cannot blur the critical areas ordinance protections with the shoreline master program protections. The new shoreline management program does have more protections. For the next three or four weeks, they may not have all those protections, but the protection wouldn't be any different legally from using the 1998 ordinance. Her membership is simply concerned with public notice and public process. The public must have a chance to speak to this. The public is aware this is happening. They may agree with the recommendations from Ecology, but they need to have notice. Roger Almskaar, Land Use Consultant, described his background. He agrees with the two previous speakers. This is an issue about process. There is no justification to rush this. Planning and Development Committee, 8/5/2008, Page 5 Slow down and do it right. The resolution only approves attachment A. There is no reason for rushing. Fleetwood stated the reason, whether they agree on it or not, is that there will be fewer protections in the interim. Almskaar stated three or four weeks won't make a significant difference. Not a lot of applications are coming in right now. Jeff Chalfant, BP Cherry Point, stated the Council should be very thoughtful and take time to consider what it means for the community. Up to this point, there has been a very robust public process. A couple more weeks won't make a huge difference. BP Cherry Point will not take advantage of any exposure during this interim. There are two issues. The first relates to the Cherry Point Management Area, in attachment B, the item identified as page 186, section 23.100.17.A.1.e. This section has changed. The section on the Cherry Point Management area used to be an all- inclusive management plan. All regulations for that area resided in that chapter. This revision includes references to other sections of the code. There is no definition of shoreline resources, which should include economic benefits. A variety of caveats are provided throughout the Cherry Point Management Area specific to industrial development in the Cherry Point industrial area. Make sure those caveats still hold true. They were negotiated pieces of language included to give industry and the Cherry Point property owners the confidence that the program would be administered in a manner consistent with homeland security and other unique safety issues. The second issue refers to the vegetation management considerations in section 23.90.06.8.2. Ecology has changed this language so new developments must obtain a variance to encroach on buffers when strict compliance with the buffer requirements isn't feasible. A variety of provisions throughout the code allow folks to encroach into those buffers. That's why it's written the way it is. Certain activities aren't required to comply with buffer standards. Now, those activities will be required to obtain variances. These are just a couple of very significant issues that have popped up. Allow more time to go through and discuss these changes. Brenner asked if there could be a significant reduction in protection in the interim, if they don't approve the resolution tonight. Chalfant stated the areas where they don't have robust buffers under the 1998 program are areas with very constrained, small lots. Folks will already be building that close to the shoreline, even under these proposed standards. The County may not get the same amount of mitigation from the 1998 program that it might otherwise. However, there are good protections in the 1998 program. The folks who wrote it knew what they were doing. The 1998 program is ahead of its time, and better than what a lot of the communities will come up with for new guidelines. The 1998 program doesn't erode all protection. There will be a little bit of exposure. It's worth it to wait and maintain the community's trust. Fleetwood asked if there will be an opportunity to amend the final ordinance and address areas of concern that the public brings forward. Stalheim stated amending the ordinance would require that they go through the same amendment process as they are currently going through. If they take action tonight, the changes would become State WAC. If the County goes through public process and makes changes, it has to go back through the Ecology process, and that could take six months. Planning and Development Committee, 8/5/2008, Page 6 Wenger stated the length of the process depends on how big the changes are. Small changes can be done in a month or two. More robust amendments would take Ecology about five months, once it receives the amendment from the County. Ecology would expedite Whatcom County's changes: Mr. Chalfant's issue regarding vegetation conservation is not something he's heard before. He will go back and look at it. Mr. Chalfant expressed a concern about shoreline resources. According to Ecology's legal counsel, it is a broad term in the Act that means a water - dependent use and public access. It's not just ecological shoreline resources. Mr. Chalfant expressed a concern about caveats. A section of the Cherry Point Management Area makes reference to the section about public access. It has its own public access section, but the regular public access section could apply if there is a safety issue from public access. Stalheim stated talk about some of the legal issues in executive session with legal counsel. This is a State law. The Growth Management Act requires shoreline management integration in RCW 36.70A.480.2. The legislature determined that the shoreline master programs will go through a separate procedure. The question is whether there is anything in the local Charter or code that requires an ordinance procedure. Legal counsel wants to talk about that issue. Jim Dickinson, Lummi Island Land Company, stated he wants time to look at the changes presented, which could severely affect his properties. Certain things seem to defy Supreme Court decisions. Other things seem to burden property owners without compensation. He would like time to study it. Weimer asked the difference due to the Supreme Court ruling. Wenger stated the critical areas ordinance would have also applied along with the shoreline management program. Brenner asked what that really means. The 1998 Shoreline Management Program is really good. She doesn't see the need to rush through the process. Fleetwood asked if anything can happen that would justify approval tonight instead of waiting a few weeks. Stalheim stated there have been specific recent cases where they applied the critical areas ordinance rather than shoreline jurisdiction rules. Young stated he's still looking into how the Supreme Court ruling affects current projects under review and new projects that would apply during the interim. For the last 15 years, the critical areas ordinance has coincided with the shoreline master program. The two together have provided a good level of protection. The major lack in the 1998 shoreline master program is that there is no compensatory mitigation provision. There are many postage stamp lots subject to large setbacks, but the County has been able to apply mitigation and get that remaining area enhanced. The County loses the no- net -loss provision because the critical areas ordinance goes away. Weimer moved to recommend approving the resolution to the full Council tonight. Fleetwood stated that approval is subject to advice received from legal counsel later in executive session. Motion carried 2 -0 with Caskey- Schreiber absent. Planning and Development Committee, 8/5/2008, Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 OTHER BUSINESS There was no other business. AD]OIIRN The meeting adjourned at 5:19 p.m. Jill Nixon, Minutes Transcription ��11111111111////� ATTE$t�````� •••••••• Ijj -- 0 0 Da rk i * -0- � / / //IIIIf111��1 WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON %�, ea � Planning and Development Committee, 8/5/2008, Page 8