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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
WHATCOM COUNTY COUNCIL
Special County Council
May 3, 2005
Council Chair Laurie Caskey- Schreiber called the meeting to order at 2:05
p.m. in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Present: Absent:
Barbara Brenner Sam Crawford
Dan McShane
Seth Fleetwood
Sharon Roy
L. Ward Nelson
OTHER BUSINESS
Brenner stated she received a letter asking the Council to support an
application for a federal grant for jail diversion. This is a diversion grant. They do
a pre- incarceration evaluation to see if incarceration is appropriate. Time is critical.
She asked the Council to write a letter of support for the grant application. She
would work on a letter to bring to the Council.
1. COUNCIL TO DISCUSS ISSUES AND CONCERNS RELATED TO THE
RECENTLY ADOPTED MORATORIUM IN THE LAKE WHATCOM
WATERSHED (ITEMS TO BE DISCUSSED INCLUDE: PROCESS,
JUSTIFICATION FOR LIFTING THE MORATORIUM, BENCHMARKS, AND
PRIORITIZATION OF TASKS) (AB2005 -072B)
Hal Hart, Planning and Development Services Director, stated staff wants to
schedule the next few meetings so they can plan the staff's work schedule.
Councilmember Fleetwood gathered comments from everyone about everything
they want to address regarding Lake Whatcom. He wants to make sure staff has
addressed the universal group of policies that the Council wanted. Staff wants to
address those policies as systematically as possible. It's an organizational matter.
Brenner asked when the new draft cluster regulations will come to the
Council. Hart stated they can come forward either sooner or later in the process.
Now is the time to lay out the schedule for the sets of recommendations staff
should bring forward and in what priority. He doesn't want a schedule that is too
ambitious, but by July, staff will do everything they can except for stormwater.
Special Whatcom County Council- Moratorium Response, 5/3/2005, Page 1
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Roy asked why they are not going to work on stormwater. Hart stated they
are, in a sense. They are dealing with the land use pieces, low impact, subdivision,
and broader land use issues first.
Roy stated Mr. Hood's comments at the last meeting suggested that the
current stormwater regulations aren't good enough, and they're allowing a lot of
pollution from every new house. She senses from Mr. Hood that this should be a
higher priority.
Fleetwood stated this moratorium response phase was to put together an
outline for response. The Council gave general direction on what should be in the
outline, but staff hasn't responded. Not doing anything about stormwater is in
opposition to the Council's direction.
McShane stated stormwater is a Public Works Department item. The actions
now are to avoid impacts as much as possible through development standards,
including impacts that may have no impact to stormwater, such as agricultural
activity in the watershed. It's clear the Council has not adopted a stormwater
program in Whatcom County that complies with the current State Department of
Ecology (Ecology) stormwater manual. The Council should think about doing that.
Get information from the Public Works Department staff on why they haven't done
that yet.
Roy stated she has the same understanding. The Council is trying to prevent
runoff from running into the lake. Another component of the problem is runoff that
is already running into the lake from existing impervious surfaces. She would like
to talk about this with the Public Works Department staff. The Council keeps
bringing it up, but staff isn't addressing it.
Steve Hood, Washington State Department of Ecology, stated
Councilmember Roy had asked what he meant by saying each development going
in would be just over 5,000 square feet of impervious surface, or converting three -
quarters of an acre of lawn is not up to standards. The thresholds for applying the
minimum requirements in Ecology's manual are the criteria where one must meet
all the requirements. Whatcom County has a different set of thresholds that don't
kick in an examination about whether those minimum requirements must be met at
those levels. Those are the smallest developments that wouldn't get evaluated for
conditions to be applied.
Not all of Whatcom County's criteria, from chapter two of the development
standards, are as protective as Ecology's manual. He sent a summary of where
Whatcom County is compared to the 1992 manual. A lot of work went into the
2001 manual. Recent updates and corrections have been made. The most current
manual is the 2005 version, but there isn't anything substantial that would apply to
Whatcom County.
Special Whatcom County Council- Moratorium Response, 5/3/2005, Page 2
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Kurt Baumgarten, Planner I, stated the County has section 2.21, which is the
stormwater special district standards. They apply to every single family residence
and duplex in the watershed. Those meet or exceed Ecology's manual. Mr. Hood is
talking about subdivision requirements. Long plats are tough to do in the
watershed. Short -plats still come in from the watershed, especially for lots of over
five acres. He asked which developments don't meet Ecology's standards.
Hood stated the Ecology has a different criteria for when flow control is
added, for example. Storms around here aren't 24 -hour storms. They're season -
long storms. A detention facility that is designed to drain between storm events
doesn't. The new detention requirements look at continuous runoff and the
duration of different flows. That means most developments need a larger amount
of storage.
Baumgarten stated that Whatcom County does meet Ecology's standards for
the single family residences, which are based on the King County surface water
manual, which is in concert with Ecology's standard. They have to be careful to
frame the conversation around single family residences or larger developments.
Nelson asked if only King County is meeting the Ecology standards. Hood
stated many communities adopted Ecology's manual for their technical guidance,
which meets the standard. Most jurisdictions don't develop their own manual.
They just adopt Ecology's manual. Some large jurisdictions will modify the Ecology
manual or adopt their own manual.
Nelson asked if the County can adopt Ecology's standards for subdivisions or
long plats. Baumgarten stated that is up to the Public Works Department. It's an
engineering issue. The Planning Department regulates single family residences
based on standards put together by the Technical Advisory Committee, which are
the stormwater special district standards that are verbatim from the King County
surface water manual, which was developed at the same time the Ecology manual
was being developed in conjunction with the research going on at the University of
Washington. The standards now meet the intent of the stormwater manual. They
stress low- impact development and onsite retention of stormwater.
The continuous model for a storm event works better at a larger scale.
They're talking about 10,000 square foot lots. That's where the single - family
residential standards came in. Ecology may take to task how the County manages
stormwater countywide. However, he's keeping his response framed to just the
watershed.
Hood stated his comments last week were relevant to the subdivision
moratorium. Ecology's standards aren't for protecting a lake, but all of Puget
Sound. They are relevant countywide.
Brenner stated the Council has the option of adopting Ecology's manual. The
Council needs to find out if that's what the Public Works Department is doing or
Special Whatcom County Council- Moratorium Response, 5/3/2005, Page 3
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
why it's not doing that. Hood stated adopting the manual means making decisions.
Ecology is ready to help make those decisions.
Roy stated this should not get lost in the process. She asked Mr. Hart to tell
the Public Works Department the Council wants to discuss this more. Hart stated
he will.
Amy Pederson, Planner II, stated she wants to make sure the fundamental
topics are addressed. Review the overall goal and what is necessary to lift the
moratorium. To date, they've addressed items one and two from Fleetwood's
memo. They are on item three. Staff can get that discussion going at the next
meeting with the Public Works Department. She asked if these items are still the
goal.
McShane stated the objective hasn't shifted much. Item three is to direct
them toward reducing costs for coming up with a stormwater comprehensive plan
to address phosphorus. The moratorium recognizes that they have already gone
over the acceptable level of development impacts and phosphorus loading in the
watershed. They will have to reduce that number. Pull back from going further
beyond what is acceptable by adding to the problem. Look at how much they've
reduced potential build out from the zoning mechanisms. Be very aggressive about
it. Look at the urban growth areas, which are currently being reviewed. They
began a discussion of the transfer of development rights (TDR) program last week.
It needs to be tweaked, depending on how aggressive they want to be to reduce
potential build out.
Brenner stated the councilmembers didn't agree with the suggested
prioritization criteria for implementation measures to lift the Lake Whatcom
subdivision moratorium. Pederson stated the memo from Fleetwood outlined the
big topics. The criteria were to figure out which alternatives presented relate to the
topics.
Nelson stated he is not interested in maintaining the moratorium if they keep
expanding the elements they discuss. He's willing to look at subdivisions and
mechanisms for retrofitting. The other elements should be ongoing discussions, but
not tied to the moratorium.
McShane stated he would like to make progress, reverse trends, and meet
the total maximum daily load (TMDL) requirements before allowing additional
building lots in the watershed. They can reduce the burden created by a
subdivision moratorium. Given the costs they are facing and the fact that they
don't know what the TMDL will require them to do, he is leery. A review of the
urban growth areas (UGA's) is already happening. He needs to see how the UGA's
play out. Those are the areas where they will have the biggest stormwater
challenges. The actions and review that are occurring will influence how he views
things. Finish the changes to Whatcom County Code (WCC) 20.71, then
Special Whatcom County Council- Moratorium Response, 5/3/2005, Page 4
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
concentrate on a stormwater management program. After a program is created,
talk about lifting the moratorium at that time.
Caskey- Schreiber stated she agreed. She wants to finish WCC 20.71 before
moving into stormwater. There are changes the Council should adopt as soon as
possible.
She asked if the City of Bellingham can do anything to reduce the UGA. Hart
stated this discussion is occurring at the Planning Commission. Staff will meet
tomorrow with the City staff to discuss these kinds of issues generally. It has been
an ongoing discussion. The City doesn't want it in the UGA. They want some of
these areas out of their UGA. Then, the County will have all the responsibility. As
they work out the land use question of the UGA, they are also working out the
interlocal agreement. The staff is working out the interlocal agreement as a
separate issue, which overlays the complexity of the issue. As the City rewrites its
Comprehensive Plan and urban growth areas, the County must negotiate what is in
the City's plan so the two plans are more consistent. That negotiation is occurring
over the next six to eight weeks.
Brenner stated the City said several years ago it doesn't want those areas.
She asked about something in the City's Comprehensive Plan that the City won't
allow those areas in the UGA. Hart stated the County makes that decision, not the
City.
Brenner stated that just leads to an impasse if the City won't annex the area.
Hart stated that's why they're negotiating delicately.
McShane stated do whatever they can to reduce the potential build out in
those areas. They've already gone beyond the problem. Take actions to minimize
the problem. A substantial part of the current Lake Whatcom UGA should remain in
the UGA's. The reality is, the County is going to have to provide an urban level of
service for stormwater regardless of whether or not the density changes. It is
already in need of urban infrastructure. Hart stated the County and City are
discussing areas of the UGA that can be cut back. However, citizens are clearly
saying they've counted on being in the UGA to develop their properties, and they
expect to remain in the UGA. The Planning Commission is looking at the UGA on a
parcel -by- parcel basis.
McShane stated that's when the TDR program will be critical. Make sure
there is fair compensation. That ties in with the other UGA's in the city. Be
extremely aggressive on potential build out. The data is very clear. Treating for
phosphorus and stormwater won't be a great solution. They won't be able to get
the phosphorus out of the stormwater systems.
Fleetwood stated he's hearing that the Council doesn't agree on what is
necessary to lift the moratorium. At a minimum, keep looking at stricter building
codes and finish WCC 20.71.
Special Whatcom County Council- Moratorium Response, 5/3/2005, Page 5
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
He asked where low impact development standards would be incorporated
into the County code. Pederson submitted a handout (on file). She's cited where in
the code the development standards would go.
Fleetwood asked how Ecology is assisting King County, and if Ecology is
offering to bring forward a County stormwater plan ordinance. Hood stated there is
a model ordinance that the Puget Sound Action Team developed. He can't prepare
something for the County, but he can sit down with staff and get other agencies
involved, if necessary. As they come up with what they want to do, he can work on
getting the resources to determine whether the ideas are equivalent to the Ecology
standards.
Fleetwood moved to request Mr. Hood and Ecology to start working on this
issue sooner rather than later.
(Clerk's Note: The motion was not voted on.)
Baumgarten stated staff is working on a comprehensive stormwater plan for
Birch Bay, which would look at a variety of issues similar to Lake Whatcom. Many
people are looking to that product to assess the challenges and possible solutions.
It's a very specific tool that could be used to lay out a road map. Also, staff is
involved with the Puget Sound Action Team to look at how to infuse low impact
development, or create stand -alone standards for low impact development, to be
used countywide or in specific areas. Staff is looking for expertise from this group.
(Clerk's Note: End of tape one, side A.)
Baumgarten continued to state Whatcom County has a different geologic
makeup compared to the rest of the state. They don't want to use Ecology's low
impact development manual. Use local expertise to come up with the options they
will accept locally. The Technical Advisory Committee would review the methods.
Then, the councils could approve a set of standards that are appropriate to the area
and apply them to certain areas. That process has funding and momentum.
Nelson stated the focus is the same. There are varying degrees on time and
effort they will put into it. He encouraged them to get information on things that
are working and aren't working on the ground.
Brenner asked if the Technical Advisory Committee includes people with a
specialty in low impact development. Hart stated a number of engineers are on the
committee. He's made recommendations to add positions to modernize the
committee.
Brenner stated include someone with specific experience and who is in the
forefront of low impact development. Find a list of the people who are working on
low impact developments, but who are frustrated with the County's regulations.
Special Whatcom County Council- Moratorium Response, 5/3/2005, Page 6
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Baumgarten stated they have to work with the Puget Sound Action Team. As the
community moves forward on this, local experts will have to be involved.
Brenner asked why those constraints would prevent the County from setting
up a low impact development users committee. Hart stated the constraint is
staffing.
Caskey- Schreiber stated they need to finish the amendments to WCC 20.71
at the next meeting.
Pederson stated the existing provision for agriculture has been reinstated.
The Conservation District has strong concerns about this provision and the role it
would have to play in administrating the regulation. The critical areas ordinance is
working on amendments that broadens the responsibility beyond the Conservation
District.
Nelson stated he would be willing to drop out the 50 percent threshold and
use the critical areas ordinance. Otherwise, they will have to take out the option
for allowing agriculture in the watershed at all. The easiest thing to do is allow
hobby farms as a permitted use.
McShane stated he is concerned about additional animals coming into the
watershed via hobby farms that won't be well run. Grandfather existing hobby
farms, or give them a phase out period. Don't allow hobby farms to expand in the
future. The problem is the importation of phosphorus into the watershed and what
the animals do to the ground. It's not a big problem now, but it may be down the
road as more people convert their properties to a rural use.
Nelson stated they already have language in the ordinance now to allow the
critical areas ordinance regulate the use.
Caskey- Schreiber asked if the language can stipulate that a user must
adhere to the critical areas ordinance. Pederson stated the regulation as written
now is less restrictive than the critical areas ordinance.
Caskey- Schreiber stated that phosphorus will be added to the lake if horses
aren't properly managed. Make sure they are doing everything they can. Pederson
stated the critical areas ordinance is in addition to and supercedes this language.
Brenner stated the Council can't do something about certain things, like
geese and wildlife. They can do something about domesticated animals. In the
best of all worlds, let those who now have the use to continue as a nonconforming
use. One concern is with people shopping for property in the watershed who see
hobby farm uses existing so people assume they will be allowed the same use.
Special Whatcom County Council- Moratorium Response, 5/3/2005, Page 7
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Nelson moved to reinstate WCC 20.71.051, without the provision about the
50 percent threshold for animal units that the Council approved at its previous
meeting.
McShane stated he's not sure about grandfathering or phasing out the use.
If they grandfather the use, the County must find out who has animals at the time
the ordinance goes into place. It would take an effort by the County. Phasing
would give people a deadline when animals would no longer be allowed in the
watershed.
Caskey- Schreiber stated adopt the motion, with the stipulation that the use
meets the new critical areas ordinance.
Brenner stated she would rather grandfather the use. The use will be phased
out by attrition, anyway.
McShane stated he would like to know the cost of identifying parcels for the
grandfathering provision. Ban the use, grandfather those with the use currently,
and don't use the critical areas ordinance.
Brenner stated she would rather not spend resources on doing an animal
inventory. The process is complaint- driven, which will work. Send out a public
notice so everyone knows about it.
Hart stated typically, they do have to have a snapshot in time of what is
going on. People in the rural areas know what the Council is talking about.
McShane stated the staff might not inventory them all, but it would be to
their advantage to have the use inventoried if there is a complaint.
Brenner stated there are ways for people to prove their use on their own,
without spending a lot of money. It would be impossible for staff to inventory this
type of use.
Nelson amended his motion to amend WCC 20.71.051, "Preexisting
agriculture... two or more acres
0 n cenfermance with ... and implemented a conservation plan which provides feF -a
smaller b fe ." Everything preexisting is permitted. He asked if that allows
grandfathering.
Roy stated she agrees with the complaint process. There is no difficulty
about the landowner having to show evidence of the use.
Brenner stated they should add language at the end of the section,
"...provided that these uses may not be expanded or continued if there is a sale of
the property."
Special Whatcom County Council- Moratorium Response, 5/3/2005, Page 8
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
McShane asked if existing uses would be grandfathered in if they simply say
it's not permitted and there would be nonconforming uses. Pederson stated an
existing use that is grandfathered in would be subject to the nonconforming use
policy and allowed to expand or change.
Caskey- Schreiber asked if the language must list that it's a nonconforming
use. Pederson stated it's easy to verify with an aerial photo to show a preexisting
structure, but they can't verify what animals were on the property at a certain time.
Brenner stated the animals will go away through attrition. She asked if a
nonconforming use will allow for expansion and continuation if someone else buys
the property. Pederson stated she would have to check with legal counsel.
Nelson stated he's not worried about expansion, which would require
additional facilities that require permits.
McShane stated the intent is to strike the language, and without adding
language existing uses will be grandfathered in. That will happen either way.
Nelson asked if a structure that currently exists would be a nonconforming
use and wouldn't be allowed to be repaired and maintained. Pederson stated one
would be able to repair and maintain a use, even if it burns down.
Nelson withdrew his motion.
McShane moved to strike WCC 20.71.051.
Motion carried 5 -1 with Nelson opposed.
Pederson stated WCC subsections 20.71.153 and .154 have been proposed
to be stricken. She would like to finalize the Council's direction on that issue. The
Council did not identify any existing uses. There may be a few uses that are
cottage industries.
Nelson asked if that would affect the urban areas in the city. Pederson
stated it would not.
McShane moved to strike WCC 20.71.153.
Motion carried 5 -1 with Nelson opposed.
McShane moved to strike WCC 20.71.154.
Fleetwood asked why they would strike this section.
Caskey- Schreiber stated these uses use fertilizer.
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Brenner stated the Council could allow the use with phosphorus -free
fertilizer. Add it as a condition.
Roy stated there aren't any of these types of uses that exist currently. This
is much ado about a small issue.
Motion failed 3 -3 with Nelson, Brenner, and Fleetwood opposed.
Pederson stated she needed clarification on subsections WCC 20.71.301(3).
and 20.71.350 through .352. It does not relate to cluster development, only open
space requirements for commercial development, which is just the Park Store, and
about 17 acres in Sudden Valley. There are concerns related to the specific
requirements and wording that she wants to discuss with legal counsel.
Brenner stated the Council already voted on this issue. Staff can go forward
based on what the Council already voted on.
Fleetwood asked if staff will bring forward a clean version of the ordinance
based on latest amendments. Pederson stated they will.
Roy stated the motion to remove WCC 20.71.154 failed, so it is still in there.
She moved to add a condition to require phosphorus -free fertilizer only for uses in
subsection 20.71.154(4)
Fleetwood asked if it will conflict with subsection .154(3).
Brenner stated it will not.
Motion carried unanimously.
Pederson stated the cluster subdivision regulations in WCC 20.71.350
through .352 have been before the Council Planning and Development Committee.
Any additional amendments to that section will be made when it goes to the
Council.
Brenner stated the Council could have another special meeting at 1:30 p.m.
on May 10 to discuss low impact development.
(Clerk's Note: End of tape one, side B.)
Pederson stated the cluster regulations would be adopted before this item.
Staff will submit the cleaned up version of this ordinance next Tuesday.
Caskey- Schreiber stated the Council can have a public hearing in June.
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
OTHER BUSINESS
There was no other business.
ADJOURN
The meeting adjourned at 3:45 p.m.
Jill Nixon, Minutes Transcription
The Council approved these minutes on May 24_, 2005.
ATTEST:
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Dana Brown - Davis, Council Clerk Laurie Caskey- Schreiber, Council Chair
Special Whatcom County Council- Moratorium Response, 5/3/2005, Page 11