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HomeMy WebLinkAboutNatural Resources January 30 2007WHATCOM COUNTY COUNCIL Natural Resources Committee January 30, 2007 Committee Member Dan McShane called the meeting to order at 9:00 a.m. in the Council Chambers, 311 Grand Avenue, Bellingham,, Washington. Present: Absent: Seth Fleetwood None Carl Weimer Also Present: Sam Crawford Barbara Brenner SPECIAL ORDER OF BUSINESS 1. ELECTION OF COMMITTEE CHAIR (AB2007 -022) Fleetwood nominated McShane. Nomination carried unanimously. COMMITTEE DISCUSSION 1. WORK SESSION ON THE PROPOSED ORDINANCE AMENDING THE OFFICIAL SHORELINE MANAGEMENT PROGRAM (WCC TITLE 23), THE OFFICIAL SHORELINE MAP, AND ASSOCIATED PROVISIONS OF THE CAO (WCC CHAPTER 16.16), AND THE ZONING CODE (WCC TITLE 20) (AB2006 -442) Jeff Chalfant, Planning and Development Services Department, gave a staff report and submitted two memos (on file). Chalfant read proposed amendment one in the memo. McShane asked if there is a definition of impervious surface. Chalfant stated there is. It's in the definitions section. It is essentially identical to the definition in Title 20. Staff wanted to keep it consistent with Title 20 and current business practices related to calculating impervious surface. Fleetwood asked if anything less than natural flow is impervious. Chalfant stated he wouldn't characterize it that strongly. Some surfacing can be done through low impact development techniques. They may retard flow a little but, but they mimic natural conditions. They are catching the big ticket items such as gravel roads and pavements. A few things could sneak through that may not be cons(dered impervious in terms of calculating the amount of development one can do on a property. Those things can happen after a development is approved. McShane stated he's fine with this definition. The Council had a debate about this issue during the Lake Whatcom overlay. Chalfant stated that's why he recommends going with the language, which was ultimately chosen through that process. It also provides regulatory consistency. Natural Resources Committee, 1/30/2007, Page 1 McShane moved to approve proposed amendment one and the definitions in amendment six in the January 30, 2007 memo from Jeff Chalfant to the Council regarding proposed amendments to the October 26, 2006 Planning Commission recommended Draft Shoreline Management Plan. Motion carried unanimously. Chalfant read proposed amendment two in the memo. McShane moved to approve proposed amendment two in the January 30, 2007 memo from Jeff Chalfant to the Council regarding proposed amendments to the October 26, 2006 Planning Commission recommended Draft Shoreline Management Plan. Motion carried unanimously. Chalfant read proposed amendment three in the memo. Fleetwood asked if this is a criminal offense. Chalfant stated it's straight out of the Revised Code of Washington (RCW). McShane moved to approve proposed amendment three in the January 30, 2007 memo from Jeff Chalfant to the Council regarding proposed amendments to the October 26, 2006 Planning Commission recommended Draft Shoreline Management Plan. Motion carried unanimously. Chalfant read proposed amendment four in the memo. McShane moved to approve proposed amendment four in the January 30, 2007 memo from Jeff Chalfant to the Council regarding proposed amendments to the October 26, 2006 Planning Commission recommended Draft Shoreline Management Plan. Motion carried unanimously. Chalfant read proposed amendment five in the memo. . Fleetwood asked if the test as stated in Shoreline Management Program chapter 23.90 explicitly refer to nexus and proportionality. Chalfant stated it refers to all applicable legal and constitutional provisions. The principles of nexus and proportionality have to be represented in the decision. McShane moved to approve proposed amendment five in the January 30, 2007 memo from Jeff Chalfant to the Council regarding proposed amendments to the October 26, 2006 Planning Commission recommended Draft Shoreline Management Plan. Motion carried unanimously. Chalfant read proposed amendment six in the memo. McShane moved to approve proposed amendment six in the January 30, 2007 memo from Jeff Chalfant to the Council regarding proposed amendments to the October 26, 2006 Planning Commission recommended Draft Shoreline Management Plan. Motion carried unanimously. Natural Resources Committee, 1/30/2007, Page 2 Chalfant read proposed amendment seven in the memo. McShane moved to approve proposed amendment seven in the January 30, 2007 memo from Jeff Chalfant to the Council regarding proposed amendments to the October 26, 2006 Planning Commission recommended Draft Shoreline Management Plan. Motion carried unanimously. Chalfant read proposed amendment eight in the memo. McShane moved to approve proposed amendment eight in the January 30, 2007 memo from Jeff Chalfant to the Council regarding proposed amendments to the October 26, 2006 Planning Commission recommended Draft Shoreline Management Plan. Motion carried unanimously. Chalfant read proposed amendment nine in the memo. McShane moved to approve proposed amendment nine in the January 30, 2007 memo from Jeff Chalfant to the Council regarding proposed amendments to the October 26, 2006 Planning Commission recommended Draft Shoreline Management Plan. Motion carried unanimously. Chalfant read proposed amendment ten in the memo. He submitted a map of the three map changes (on file). McShane moved to approve proposed amendment ten in the January 30, 2007 memo from Jeff Chalfant to the Council regarding proposed amendments to the October 26, 2006 Planning Commission recommended Draft Shoreline Management Plan. Motion carried unanimously. McShane asked about the west shoreline on Lummi Island, south of f=rog Pond. It's labeled as conservancy. He asked how that was derived. It looks like natural designation shows up only in public ownership areas. Chalfant stated that very pristine areas that provide a high level of functionality, the public ownership issue wasn't weighed as heavily. There are a few areas in private ownership that are designated as natural. Generally, if in public ownership and very pristine, it is given a natural designation. If it's in private ownership and highly functioning, but not a critical resource, it was given a conservancy designation. Fleetwood asked who makes that assessment, and how. Chalfant stated the technical advisory team and consultants make the assessments, following the criteria in chapter three of the Shoreline Program. There is a certain amount of judgment that goes into that decision. McShane stated he received a memo regarding a stipulation agreement at Governor's Point. In section 23.10.06, the committee added reference to that stipulation agreement in subsection C. The agreement is stipulated judgment number 9320244. it refers to a legal agreement done in 1999 between the owner of Governor's Point and the County about future development following the shoreline rules that were in place at the time the plat was submitted. In reading through the stipulation, he came across a reference about Noble Manor vs. Pierce County. He suspects something went sour with that Natural Resources Committee, 1/30/2007, Page 3 Noble Manor agreement. Chalfant stated Noble Manor is a specific case that deals with vesting and short- plats. It addresses any environmental shoreline issues. It implies that things identified on the plat are vested forever. McShane asked if there is something the Council can put in the program that says the Governor's Point owners need to follow the rules, or the County will fight to take away their rights. Governor's Point is very important. Eight or nine docks are proposed. Emphasize in the Shoreline Management Plan that the County can accept there is a stipulated agreement, but the owners must play by the rules or the County will challenge the agreement. Chalfant stated the County may be held to anything that was in place at the time of the agreement. He doesn't know if they can add anything to this Shoreline Management Plan that would impose further stipulations about following the settlement agreement. Anything related to the settlement agreement would have to be in the settlement agreement. McShane stated there is no strong or specific language in the settlement agreement about what happens if a violation occurs. He asked if the County should have a policy in place for Governor's Point if owners violate that agreement. Chalfant stated that if there is a violation of the permit provisions, the permit can be revoked. Get legal counsel to determine what provisions apply. He'd have to do some research. McShane stated he'd like to have that information. Chalfant stated there is provision in the critical areas ordinance that the County may suspend or revoke a permit if the applicant violates the conditions or limitations set forth in the permit or exceeds the scope of work set forth in the permit. That language is in the penalties and enforcement section of the critical areas ordinance. The committee could copy that language into the shoreline management plan. He is concerned with duplicating language. McShane stated the plan could cross reference that language. He would like some kind of language that bolsters a future decision -maker to be firm on this issue. Fleetwood stated there would be no harm in duplicating a part of the code, if they can find a place to put it. Chalfant stated it can go in the violations and penalties section as a new item F. Take the same language from the critical areas ordinance, WCC 16.16.285. He read the language. . McShane moved to insert language as a new section in Whatcom County Code (WCC) 16.16.285.F, pending approval from legal counsel, "F. The'-County may suspend: or revoke a permit if the applicant violates the conditions or limitations set forth in the permit or exceeds the scope of the work set forth in the permit." Motion carried unanimously. McShane stated he would like to discuss the recommendations suggested by the Department of Ecology (Ecology). He's still not comfortable with the recommendation on boating facilities. The comment was about the end of the boating facilities section, in section 23.100.0+. Once they start getting into the conservancy area, and to a degree shoreline residential, the policies and regulations would limit where marinas could go, based on environmental issues primarily. He asked if there are areas where they simply don't want marinas, based on environmental aesthetics and public interest, regardless of ecological issues. It has to do with the way people view their shorelines. Where rules and regulations preclude many sites for marinas, they may not entirely preclude those sites. He is not sure if certain designations may, in fact, allow a marina or large boat ramp. He asked if a marina in Lake Whatcom or Lake Samish is precluded by this language. They could create language. He read policy one, first paragraph, last sentence and the second Natural Resources Committee, 1/30/2007, Page 4 paragraph, second sentence. It almost sounds like they should identify future potential marinas and identify places where they don't want them at all. He asked if they should have that exercise now, or only suggest sites in the Parks and Recreation Plan or State Department of Natural Resources (DNR) plans. He asked if the Technical Advisory Committee (TAC) had that discussion. Chalfant stated there was discussion in the TAC. Folks realized that there are few viable places in Whatcom County to put marinas, and that there is enough material in the plan to address the issue. The community nuisance impacts would be addressed in the zoning code. They felt it's a non -issue because options are limited and the criteria for environmental resources are good. Fleetwood asked why the options are limited. Chalfant stated many shorelines are high bank bluffs. There would not be marinas in those locations. There is a prohibition of converting estuarine shoreline to marinas. _i!. McShane stated it will probably be difficult in the marine environment. He's concerned about a marina in a lake environment. He asked what protects the lakes from construction of a marina at this time. Chalfant stated there is protection of the resources, but there is no outright prohibition. McShane stated someone could get creative in getting around the rules. Fleetwood stated it would be a private entity motivated to create a marina. There is not sufficient lot consolidation. He can't imagine where someone may propose one for commercial purposes. McShane stated it seems highly unlikely, but he's seen a lot of unlikely projects come to fruition. Chalfant stated that from a commercial standpoint, the options are limited. If there is any opportunity to develop a marina, it would probably be associated with a subdivision. Fleetwood stated he would like to know whether there is a basis in the Shoreline Management Act for a county to carte blanche limit the authority to expand a marina, for non - ecological reasons. Chalfant stated marinas and launch ramps are one of the few truly water dependent uses .out there. Construction, when done right, really facility a lot of the objectives of the Shoreline Management Act by providing additional access to the shoreline and increasing opportunities for public recreation. It's a catch -22 to use the shoreline program to limit water recreation activities. McShane stated that makes sense in the marine areas. However, there are few places. They don't want to preclude opportunities for access to the water. Chalfant stated if they want to consider it, document well the reasons for the prohibition. It may be something to do in the zoning code. Weimer referenced the Cherry Point management area in 23.100.17. The DNR designated a large part of the area an aquatic reserve, then backed off to decide what that means. He asked the status of that process, and whether it should be referenced. Chalfant stated it was the recommendation of DNR and the TAC to not include the aquatic reserve because it's in question. That process is very specific. Unless it's complete and they know the outcome, don't integrate it with the Shoreline Management Program. Policy A.1.d encourages the County to participate with other jurisdictions and stakeholders to develop a management plan for the Cherry Point area. There is nothing in the County plan that negates them from doing the aquatic reserve. The DNR participated in almost all TAC meetings. Natural Resources Committee, 1/30/2007, Page 5 McShane referenced page 154 of the draft, section 23.100.09.8.6. He asked the threshold for "substantially expanded." Chalfant stated this committee struck that language already. McShane referenced section 23.100.11.B.1.b. He asked if a lot has a life and the length of a structure's life. Chalfant stated they have assumed the life of a structure to be 100 years. Recently, the building official indicated that the basis for that assumption is no longer there. The committee could revisit that section for clarity. Defining the life of a lot is problematic, (Clerk's Note: End of tape one, side A.) McShane moved to amend section 23.100.11.B.1.b, "...during the life of the structure (100 years)..." Motion carried unanimously. McShane moved to amend section 23.100.11.B.1.b, "..,occur dur-'-ng the life ef the lets eFeated." Motion carried unanimously. McShane referenced section 23.100.11.B.1.g. Chalfant stated there is a lot of case law related to this item. A handful of property owners who think something is obstructive can constitute a substantial number of property owners. Leave it on a case -by -case basis. That's the way the courts have dealt with it. McShane referenced the proposed changes to the critical areas ordinance. The County Planning Commission recommendation is to change the background of a qualified wetland professional from five years to three years. According to wetland specialists, leave the professional background at five years and cite the Society of Wetland Scientists certification process, which is five years. Wetland specialists are concerned about it going back to three years. Chalfant stated the public raised concerns about the five year timeframe. Staff and consultants feel that five years is more than the industry standard. People didn't think that the additional two years added much value. Fleetwood asked if there is any sense of the numbers of people who would do this kind of work and be made ineligible. Chalfant stated only a handful. Most folks have five years or more experience. Part of the justification was that it is just a few more folks. Also, they've tried not to exclude people who have experience only outside of the Pacific Northwest. McShane stated the Shoreline Management Program talks about channel migration zones. On the map, there is a shoreline designation along the Nooksack River that goes beyond 200 feet. He asked the basis for that designated area. Chalfant stated the Shoreline Management Act identifies shoreline jurisdiction mostly as 200 feet from the ordinary high water mark. However, river systems have to be 200 feet within the floodway. A larger area needs to be managed along rivers. They need to manage channel migration zones. The only floodway model was the Federal Emergency Management Agency (FEMA) floodway. It was a model floodway, not based on natural features, so the courts threw it out. Therefore, the County had to come up with a proxy for the floodway that Ecology would approve and also provide certainty to the folks staff deals with daily while processing permits. The only data set they found was the geomorphic channel migration zone prepared by Brian Collins. When overlaid on the FEMA floodway, they were very similar. It seemed natural to use the channel migration zone as a proxy. The new mandate to manage Natural Resources Committee, 1/30/2007, Page 6 channel migration zones, a need to provide certainty to folks about whether or not their within shoreline jurisdiction, and not being able to use the FEMA floodway designations are the reasons why the staff used that data set. McShane stated there is no defined channel migration zone according to the critical areas ordinance right now. Chalfant stated there is a placeholder for a channel migration zone in the critical areas ordinance. McShane read the language about the channel migration zone, "Areas that are identified as potential channel migration zones based on sound scientific evidence, but which are pending further study, may be designated by the County Council as interim channel migration zones until such studies are complete." It sounds like there is a complete study that Mr. Chalfant used for the Shoreline Management Program. Adopt that study as the channel migration zone in the critical areas ordinance. The question is whether it is pending further study. Chalfant stated he would need to find out that answer from the County flood staff. They are more familiar with the status of that data set. A lot of sound scientific and technical work has gone into establishing those lines. It's been peer - reviewed by a variety of local scientists, agency staff, tribes, and others. The next step is going through the detached channel migration zone process. There are provisions in the Ecology guidelines to take out areas that have infrastructure or intense urban development. McShane stated roads could be protected even if they are in the channel migration zone. Roads within the channel migration zone could be kept in the zone, but don't presume that the road will continue to be defended. There is a firm scientific study. Adopt that study in the critical areas ordinance. Adopt this language on an interim basis, and send to the Planning Commission for review. Chalfant stated he agreed that would be the correct process to pursue that idea. McShane moved to adopt the channel migration zone as defined by the study done for this Shoreline Management Plan update as the interim channel migration zone on the Nooksack River and the forks of the Nooksack River. Also, forward that to the Planning Commission for further review. Chalfant stated Paul Pittman is finalizing that study. If that's what they want to do, base it on the jurisdiction map, then revisit it upon completion of the report and additional public process. He's concerned that the report isn't final yet. Refer instead to the map. McShane amended his motion to adopt the map version of the jurisdiction zone of the Shoreline Management Program on the Nooksack River and forks of the Nooksack River, as the interim channel migration zone. Fleetwood asked if there are a number of areas in the code that are based on a channel migration zone, or just the Shoreline Management Program. Chalfant stated there is a connection between the Shoreline Management Program and the critical areas ordinance on this issue. Ecology's administrative guidelines provides direction to manage that channel migration zone. The County has chosen to have the area managed under shoreline jurisdiction, and link it to the critical areas for specific regulations for the management of the zone. They haven't gone through the process of formally identifying those areas, so those rules are on hold until they adopt an interim or formal channel migration zone. The rules and regulations for channel migration are in place in the critical areas ordinance, pending identification of the channel migration zones. McShane stated they need to finalize this issue. It hasn't been moving forward. This is the way to get it going. It's a land use issue that should go to the Planning Commission. By adopting the interim, the Council would forward the interim channel migration zone to Natural Resources Committee, 1/30/2007, 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 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 the Planning Commission for review. It would not hold up adoption of the Shoreline Management Program. Fleetwood asked if a recommended channel migration zone by the Planning Commission, after going through that process, would become final. McShane stated it would. Chalfant stated there should be public input on an interim channel migration zone. The public can inform staff about the locations of the critical infrastructure. Motion carried unanimously. McShane moved to forward the interim channel migration zone to the Planning Commission for review and recommendation to the full Council. Motion carried unanimously. Brenner asked about the no net loss concept. People are concerned about how it would be measured, and if they are responsible for areas larger than their own property. If everyone does their own no net loss on their own property through the critical areas ordinance, they won't be responsible for everyone else's property. She's comfortable with that. McShane moved to send this ordinance to the full Council, with amendments, for a public hearing. Motion carried unanimously. OTHER BUSINESS There was no other business. ADJOURN The meeting adjourned at 10:40 a.m. Jill Nixor� lf�ul igriTi,nscAption co""'d�` ••r•• 4 ATE' o•. •r= Daff+Brov+Rr vW&I 0 Clerk WHATCOM COUNTY COUNCIL JWHACOM COUNTY, WASHINGTON Dan McShane, Committee Chair Natural Resources Committee, 1/30/2007, Page 8