HomeMy WebLinkAboutPlanning April 26 20051
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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
Planning and Development Committee
April 26, 2005
Committee Chair Seth Fleetwood called the meeting to order at 3:10 p.m. in
the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Present: Absent:
Barbara Brenner None
Dan McShane
Also Present:
None
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
3. RESOLUTION ADOPTING RECOMMENDATIONS FOR OPEN
SPACE /FARM AND AGRICULTURAL CONSERVATION AND OPEN
SPACE /TIMBER APPLICATIONS (AB2005 -186)
Elizabeth Olson, Planner, stated there are fifteen open space /timber
applications and one open space /farm and agriculture application. The open
space /farm and agriculture application is to the south of Maple Creek, toward
Glacier. She requests no access be allowed because it has anadromous fish
habitat. Letters from the State Department of Natural Resources (DNR) and State
Department of Ecology (Ecology) substantiate that they prefer no public access on
that piece of land.
Brenner moved to recommend approval to the full Council.
Fleetwood asked the acreage of the open space timber applications. Olsen
stated they are a minimum of ten acres each. There is about 150 acres for all.
Fleetwood asked the designations that require public access. Olsen stated
public access is required on the open space /farm and conservation designation and
the open space /open space designation. If there are very sensitive features and
habitat, she can specifically request that there be no public access.
Motion carried unanimously.
1. ORDINANCE AMENDING TEXT OF THE OFFICIAL WHATCOM COUNTY
ZONING ORDINANCE, SPECIFICALLY THE ADDITION OF CHAPTER
20.15 — MUSHROOM SUBSTRATE PRODUCTION FACILITIES SITING
REQUIREMENTS, ESTABLISHING LOCATIONAL CRITERIA AND
Planning and Development Committee, 4/26/2005, 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.
ZONING DISTRICTS IN WHICH SUCH FACILITIES WILL BE ALLOWED
(AB2005 -105)
Kraig Olason, Senior Planner, stated he met with the Hopewell Neighborhood
Association and its attorney to hammer out all the issues. Today's packet includes
several documents, including a clean copy of the Planning Commission text, a
revised version of the staff recommendation, including changes discussed with the
Hopewell Neighborhood Association, and a clean version of that staff
recommendation, a copy of Mr. Carmichael's letter, and a copy of their version of
the ordinance. There are three essential differences.
First, staff doesn't agree to modify the setback of the buffers. The rural
buffers should be 1,000 feet, not a half -mile. It has to do with lumping rural in
with urban uses. Rural zoning is supposed to buffer urban zoning from resource
uses.
Second, staff doesn't agree that they should eliminate the exemption in
section 20.15.040 to exempt existing operations. This is an operation that
currently exists. It cannot do anything else to comply with these regulations based
on the location in the agricultural zone. A new operation would be in a position to
locate in an area where it can meet the setbacks.
Third, staff doesn't agree with the provision to do bonding. The County
permits based on performance, and sanctions have to do with fines and revoking
permits. Having a bond is typically done when there is the potential for clean up.
A substrate operation has mushroom substrate onsite that can be hauled away at a
cost that isn't too great.
The County has regulations that deal with fines and penalties for not being in
compliance with the conditional use permit and the Health Department permit. If
there were violations, both permits could be revoked. There isn't a clear purpose or
way to come up with a bond amount that makes any difference in terms of how this
actually works. Staff supports the Planning Commission version.
Fleetwood asked if there is a provision in the code that a heavily - regulated
industry must have a bond. Olason stated there is not. A bond is typically for a
performance requirement on a specific project.
McShane stated the version on Council packet page 115 is the recommended
version from staff after its meeting with the Hopewell Neighborhood Association.
He referenced new language in the last paragraph of section 20.15.010. He asked
if the use is only put in industrial land and agricultural land. Olason stated that is
correct. That added language is reflected in the table in section 20.15.050. That
language, as originally proposed, was confusing. Staff tried to clarify it.
Planning and Development Committee, 4/26/2005, 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.
McShane stated a concern is that it can only go into agricultural land, or if
people in agricultural zones have expectations that they will become rural some
day. Olason stated the language means rural lands that expect to develop.
Fleetwood asked if agricultural land is resource land. Olason stated it is.
Fleetwood stated the language prohibits the use on resource lands, of which
agricultural land is. That language needs to be clarified. Olason stated the
language refers to commercial substrate facilities, which should only be located in
industrial lands. In trying to limit the on -farm size was to limit the footprint.
Greg Barlean, Hopewell Neighborhood Association, stated there were
substantial compromises made on both sides during the meeting.
Cheri McKay, Hopewell Neighborhood Association, stated their support for
removing the exemption is well- stated in the attorney's letter. Her handout lists
reasons to support the half -mile buffer. She submitted handouts on examples of
regulations for other types of operations in other areas of the country. She read
from her handout (on file).
McShane asked the limitation of an on -site, non - commercial operation.
Olason stated the limit is 3,250 yards per month. The use has to be indoors.
McKay submitted a handout from the University of Minnesota's Extension
Service study on computing the effects of odor and a five -year odor management
study from Pennsylvania State University (on file). There is a preponderance of
evidence to justify a buffer of a half -mile from production buildings.
McShane asked the kinds of production buildings they have. Barlean stated
the study refers to vertically integrated facilities that produce substrate and dispose
of the substrate onsite. He doesn't know what the specific facility in the study is.
Whatcom County's ordinance deals only with phase one substrate. That's the
troublesome part. They are buffering only the active area, which is the treatment
and containment building.
McKay continued to read from the list of reasons to support a half -mile buffer
and a performance bond requirement. Other jurisdictions require performance
bonds for improvements to land, subdivisions, long -term temporary uses,
landscaping, and general administration and enforcement of regulations.
Barlean stated British Columbia had a lot of problems with compliance. The
Province required performance bonds. The citizens pushed the Province into
requiring performance bonds. The performance bond is in the amount of the
production per year, multiplied by a certain dollar amount. If something goes
wrong with the facility, the Province may commission a professional to go onsite,
figure out what is wrong, and tap into the performance bond to correct the
problem. Anytime the Province had to use performance bond monies, the monies
Planning and Development Committee, 4/26/2005, 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.
had to be replaced within 30 days. A performance bond is a regulatory tool that is
not too onerous. There seems to be a push by the industry to get the rules off the
books. He's not sure the County's Health Department code or conditional use
requirement will last. If the County loses those tools, it would be good to be as
armed as possible.
Fleetwood asked for an example of an event that would trigger forfeiture of a
bond. Barlean stated one example is when IMS operated for 13 months with no
inline ammonia scrubber. The County could have used that bond to pay for a
scrubber. Another example is if the medium needed to be changed in the bio- filter.
McKay completed reading from the handout the list of reasons to support a
performance bond.
Barlean submitted the Hopewell Neighborhood Association version of the
ordinance. There are six points of contention. He can counter every argument the
industry has given.
Jeff Hegedus, Environmental Health Supervisor, stated that in this country,
jurisdictions are more used to having people under permit, and then issuing
enforcement penalties and revoking permits to control a problem. They are not
interested in taking money to abate a problem in an industry where they are not
experts. They do not want to have to install expensive capital under the duress of
the facility, especially when the enforcement capability is not strong.
McKay stated a performance bond would mitigate environmental impacts on-
or offsite.
McShane asked if the idea behind the language on the exemption is to allow
the facility to do an improvement to make the facility better, which it would not be
able to do without an exemption. Olason stated the primary issue is if the facility
expands or changes the technology. The real limitation to expansion is the current
location. Whatcom County Code (WCC) subsection 20.15.020(3) talks about
expansion of the active area. There is some ability to make minor modifications. If
the last sentence were stricken, the two existing facilities would be limited to any
future exemptions. The exemption allows an exemption up to 3,250 yards.
Regarding comparisons of odor ratings, the information relates to very large
facilities. He doesn't think 3,250 yards of mushroom substrate is equal to 10,000
hogs. However, that's where they have to look for support for a half -mile buffer. If
the existing facility expands, it has to go indoors.
McShane asked if the expansion prohibition eliminates the possibility of the
current facility expanding to do things better. He asked if that should be included
in the finding of fact. Olason stated the Health Department ordinance is already
done. Should the facility choose to go indoors, the exemption would be there to
allow it.
Planning and Development Committee, 4/26/2005, 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.
Fleetwood asked if any odor problem as a result of an expansion would be
under the Health Department regulation. Olason stated it would. There are two
ordinances with which the facility would be out of compliance.
(Clerk's Note: End of tape one, side A.)
Brenner moved to amend WCC section 20.15.040 to strike the last
sentence, which is the exemption. Instead, include language that allows minimal
expansion indoors. Limit any expansion without a buffer. Olason stated any
expansion would have to be indoors and to only 3,250 yards.
Barlean stated Ostrom would be allowed to make any modification they want
to make as long as they don't increase production. If the Council wants to allow
Ostrom to expand, then the Council will have to exempt Ostrom's from the
setbacks. This is the wrong place for a substrate production facility of any
appreciable size. There is a finger of agricultural land that juts out between rural
parcels. There is a microclimate against the hill where the air goes stagnate. This
is an example of a place where it is not appropriate to expand.
McShane asked the current production. Olason stated Ostrom currently
produces 1,500 to 1,600 cubic yards.
Fleetwood stated that if indoors, the facility will have to meet all kinds of
requirements. Now, he's hearing that a use that is indoors will still produce odor
problems. He asked if the design standards for new expanded buildings for
substrate production facilities would capture all odor. Hegedus stated the design
standards attempt to capture and scrub all odors.
Fleetwood asked what the Health Department would do if there is a
compliant of an odor release. Hegedus stated the Northwest Air Pollution Authority
(NWAPA) has jurisdiction for odor. The facility must be in compliance with NWAPA
or Ecology to meet Health Department performance standards. If NWAPA said the
facility is not in compliance with NWAPA, the design standards would kick in. If the
facility is already indoors, then they must look at other aspects of the operating
plan and engineering design. The Health Department staff would work with them to
improve the situation. The facility can only expand to 3,200 yards even if it goes
indoors. A lot of technology and money would be required to expand to only 3,200
yards.
Fleetwood stated that if the committee votes to delete this language, the
facility would not have the ability to expand according to the compromise in the
Health code. Hegedus stated he agreed that it would be inconsistent.
Barlean stated he doesn't understand the inconsistency. The Health
Department wanted to allow for an expansion in the Health code. The Health
Department code does not allow expansion at the Ostrom facility.
Planning and Development Committee, 4/26/2005, 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.
Hegedus stated Ostrom may expand, but if it does, the design standards
apply.
Barlean stated there was specific language in the ordinance to allow for an
expansion for Ostrom. They are not defeating anything that was attempted at the
time.
Hegedus stated the intent was to not allow expansion unless all design
standards kick in.
McShane stated the Council intended to allow expansion only if all standards
are met.
Motion failed 1 -2 with Brenner in favor.
Brenner moved to amend WCC 20.15.070(1)(a) to add rural zoning to the
2,640 foot buffer setback.
Fleetwood asked why staff opposes a buffer of 2,640 feet versus 1,000 feet.
Olason stated the list of zones in that section is about residential - related zones or
zones with higher- intensity uses. Rural is a land use. There are 100,000 acres of
rural land in the county. It is supposed to be a transitional, multiuse zone that
encourages resource production. When they start move that line from being a
transition, multiuse zone to a residential zone, it sends the message that the intent
of land zoned rural is for residential, not for resource lands. It's a policy issue that
should be seriously considered. It may have implications with other arguments that
come forward as they deal with conflicts between resource lands and rural zones.
It tends to favor the residential component over the resource component. In other
sections, no one is arguing about rural agriculture or rural forestry.
The buffering established in the model ordinance that was done in
Washington D.C. only addressed urban areas. In those ordinances, the buffers on
individual parcels outside of the urban areas are standard. There are still parcels
available in the agricultural zone to locate a facility.
Fleetwood asked if the Agricultural Advisory Committee commented. Olason
stated there is a letter attached to the original Planning Commission proposal.
They supported the Planning Commission proposed changes.
McShane stated that as long as the Health code holds up, the setbacks are
fine. If the Health code didn't hold up, he would be more comfortable with
following the suggestions from North Carolina about hog farms. He asked if there
could be a cross reference to the existing Health code as part of the buffer
requirements. If the Health codes were found invalid, larger buffers would apply.
He asked if there could be a 1,000 -foot buffer if the parcel is located in the rural
and rural forestry districts as long as the facility is operated as the Council currently
Planning and Development Committee, 4/26/2005, 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.
visualizes. Olason stated they started with one code. It changed when the Health
Department took over the indoor issue. If the Health code were challenged, it
would not be an overnight decision. The County would have time to make changes.
It may require an emergency ordinance. If the Health code goes away, the Council
is going to want to take another look at the regulations.
work.
McShane stated he is interested in larger buffers if the Health code doesn't
Motion failed 1 -2 with Brenner in favor.
Brenner stated a performance bond is difficult to measure. The proposal is to
measure subjective effects that cause health problems more than an effect with an
actual cost. There isn't going to be a cost if the facility is shut down.
Brenner moved to recommend that the Council hold a public hearing.
Motion carried unanimously.
McShane stated the Council should have a discussion about both versions
during this evening's meeting so the Council has a public hearing on what the
Council actually wants.
Brenner stated they should recommend both versions for a public hearing.
McShane thanked Mr. Olason for his work. He hoped the residents recognize
that they have a good regulation, even though it isn't everything they wanted.
2. ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY ZONING
ORDINANCE, TITLE 20, CHAPTERS 20.37 — POINT ROBERTS
TRANSITIONAL ZONE (TZ) DISTRICT, 20.71 — WATER RESOURCE
PROTECTION OVERLAY DISTRICT, AND 20.97 — DEFINITIONS TO
CLARIFY REQUIREMENTS AND STANDARDS FOR CLUSTER
SUBDIVISIONS (AB2005 -149)
Amy Pederson, Planner II, handed out a memo with additional proposed
amendments. The version of the ordinance they are working on begins on Council
packet page 152. She read through the memo (on file).
Fleetwood stated Mr. John Lesow had a concern about this language having
the effect of creating additional motivation to bring in public sewer system, which
triggers a debate about additional development. Pederson stated sewer has been
an ongoing issue with the community.
Brenner stated the community is split about whether or not to get public
sewer and water from Canada. She asked if there is any gain of extra lots by doing
Planning and Development Committee, 4/26/2005, 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.
a cluster. Pederson stated there is a density increase from one house per five acres
to one house per acre.
Brenner asked about the 80 -foot separation. Pederson stated a very large
piece of property with room for multiple ten -lot clusters, there must be 80 feet of
separation between each. If there are two or three lots, there doesn't need
separation from the other clusters. The 80 -foot separation kicks in for a property
11 acres or larger.
Fleetwood moved to approve the first amendment recommended in
Pederson's memo to the Council dated April 25, 2005, regarding Whatcom County
Code (WCC) subsections 20.37.310(8) and 20.71.351(5).
Motion carried unanimously.
Pederson read the second proposed amendment and rationale in the memo
regarding open space reserve area.
Brenner moved to approve the second amendment recommended in
Pederson's memo regarding open space reserve area to the Council dated April 25,
2005, regarding WCC subsection 20.37.322(2).
Motion carried unanimously.
Pederson read the second proposed amendment and rationale in the memo
regarding cluster design standards.
Brenner moved to approve the second amendment recommended in
Pederson's memo regarding cluster design standards to the Council dated April 25,
2005, regarding WCC subsection 20.37.310(6).
Motion carried unanimously.
Pederson read the third proposed amendment and rationale in the memo
regarding the open space reserve area.
Brenner moved to approve the third amendment recommended in
Pederson's memo to the Council dated April 25, 2005, regarding WCC subsections
20.71.352(c) and (d).
Motion carried unanimously.
Pederson read the fourth proposed amendment and rationale in the memo
regarding the open space reserve area.
Planning and Development Committee, 4/26/2005, 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 moved to approve the fourth amendment recommended in
Pederson's memo to the Council dated April 25, 2005, regarding WCC subsections
20.37.322(1)(c) and 20.71.352(2)(iii).
Motion carried unanimously.
Pederson read the fifth proposed amendment and rationale in the memo
regarding the open space reserve area.
McShane moved to approve the fifth amendment recommended in
Pederson's memo to the Council dated April 25, 2005, regarding WCC subsection
20.37.322(5).
Motion carried unanimously.
Pederson read the sixth proposed amendment and rationale in the memo
regarding the open space reserve area.
McShane moved to approve the sixth amendment recommended in
Pederson's memo to the Council dated April 25, 2005, regarding WCC subsections
20.37.322(1) and (5).
Motion carried unanimously.
McShane moved to recommend approval to the full Council, as amended,
for a public hearing.
Motion carried unanimously.
OTHER BUSINESS
(Clerk's Note: End of tape one, side B.)
Amy Pederson, Planner II, stated the urban residential -three units per acre
(UR -3) zone, including Sudden Valley, has 363 lots that can be divided, with an
additional 1,907 lots that could be created. That is a gross estimate. The net
estimate of 1,500 is more realistic.
In the rural residential, one unit per acre (RR1) zone, there are 12 lots that
can be divided into an additional 43 lots.
In the rural residential, two units per acre (RR2) zone, there are 73 lots that
can be divided into an additional 539 lots, but 370 of those lots are on what used to
be the Denke property.
Planning and Development Committee, 4/26/2005, Page 9
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are not the final approved minutes.
In the rural, one unit per two acre (R2A) zone, there are is six lots that can
be divided into 20 additional lots.
In the rural, one unit per five acres (R5A) zone, there are 125 lots that can
be divided into 454 additional lots. This zone is not subject to the moratorium. The
estimate may include the Sudden Valley golf course, which would have to be
factored out.
In the rural forestry zone, there are 26 lots that can be divided into an
additional 88 lots.
Brenner stated there is a total of 1,732 lots that can be affected by the
moratorium. Pederson stated she will provide more refined estimates.
ADJOURN
The meeting adjourned at 4:55 p.m.
Jill Nixon, Minutes Transcription
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Seth Fleetwood, Committee Chair
Planning and Development Committee, 4/26/2005, Page 10