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HomeMy WebLinkAboutPlanning June 21 20051 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 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 June 21, 2005 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: Barbara Brenner None Dan McShane Also Present: None COMMITTEE DISCUSSION 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 ZONING DISTRICTS IN WHICH SUCH FACILITIES WILL BE ALLOWED (AB2005 -105) Fleetwood stated the committee finished its work on this item. It is back in committee to give legal staff time to consider language regarding a variance. Karen Frakes, Senior Civil Deputy Prosecutor, stated Bob Martin is prepared to speak to this issue from an administrative standpoint. Fleetwood stated he will give the Ostrom's representative an opportunity to speak as well. He will also allow the neighborhood association one representative to speak. Bob Martin, Land Use Division Manager, stated he was brought into this issue just yesterday. He won't discuss the setbacks that have already been discussed. He read Whatcom County Code (WCC) 20.15.070(4). The concept of a variance in a provision like this is difficult from an administrative, operations, and implementation perspective. It would be an ordinance that predetermines the applicability and adaptability of a variance process for a particular use. That is out of the intent of the basic variance process in WCC 20.84.100. Variances are to be issued for specific dimensional standards. They have quantified criteria about when they are to be applied and when they are not. He read WCC 20.84.120. Any application that could come in that would be applicable to this already- existing non- conforming standard in subsection (4) would, de facto, not meet the first criteria for Planning and Development Committee, 6/21/2005, Page 1 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 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 variance. It is something that would be granted a special privilege. The action of the property owner is that they are already nonconforming. The property owners are asking to increase their nonconformity through the variance process. It's not a hardship that they could defend under variance criteria. They just wouldn't do it, and then they wouldn't have a hardship. Brenner stated it is a hardship if they need to expand, and if there are no adverse impacts. Martin stated it is a hardship, but is not defensible through the process of a variance. The hardship through variance is related to features over the land over which they have no control. Brenner stated her understanding was that the attorney said it was legal. Something that is not defensible is not legal. Frakes stated they can legally put something like this in the code, but they should discuss it further in executive session because of potential litigation. As a practical matter, the concern is that if the intent is to allow Ostrom's the opportunity to expand if they are not causing impacts to the neighbors and property, the practical reality is that they could not meet the criteria of the variance procedure. Fleetwood asked if there is anything inappropriate about having people speak to this issue. If there is no harm, the committee can take public comment and then adjourn to executive session. Frakes stated there is no problem. Have the executive session with all councilmembers, not just the committee. Martin stated the applicant, in trying to meet the variance criteria, would be easily undercut by objectors. In reality, the applicant would not be able to meet the variance criteria. This is not the intent of the variance process. William K. Street, Ostrom Chief Executive Officer (CEO), stated he was the CEO for many years and recently returned. A criterion for buying the Ostrom property originally was its location away from everyone. The company managed to live there and be friendly with neighbors for many years. They keep improving the property. He is not sure why a farm that has been operating for 25 years in agriculturally zoned land in the county is not exempted from these zoning regulations. He thanked Councilmember Brenner for bringing the variance forward. She is trying to help their effort. Her concern is that there be a formal public hearing situation by which they can plead their case on the issue of expansion. Chuck Wolf, Environmental and Land Use Attorney, stated he has submitted testimony already. He has done a fair amount of research on the legal subject matter and the history of this discussion. He is well aware of the record. He thanked Councilmember Brenner for attempting to put forth a solution to allow Ostrom a reasonable expansion. Planning and Development Committee, 6/21/2005, Page 2 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 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. The variance tool is problematic as a tool for a nonconforming use. He submitted a suggestion (on file). Use the conditional use permit tool instead. It is the tool used to take uses that need to have their compatibility examined in more detail before a decision - making body. Have a special nonconforming use provision to refine the existing conditional use permit and send it to the Hearing Examiner with appropriate criteria. Allow a public hearing for the neighbors to comment. This tool would accomplish the desired outcome without concern of applicability of the hardship issue through the variance process. Consider replacing and amending this language in WCC section 20.15.040. Martin stated he doesn't intend to short - circuit the concept. They just need the right tool. He will consider the conditional use process as the appropriate tool. The variance process makes it more difficult to track. Bob Carmichael, Hopewell Neighborhood Association Attorney, stated he hasn't reviewed the proposal from Ostrom. The conditional use process is the tool in the ordinance now. It's been in the proposed ordinance and in the Brenner amendment to the proposed ordinance. The variance was intended to address Ostrom's concern that they would not be exempt from setback and buffer requirements that would apply to everyone else in the zone. The idea of having Ostrom's totally exempt from all buffer and setback requirements, without additional review, is what the neighbors objected to. The compromise was the idea of the variance. There would be a requirement for a conditional use approval and a requirement for the variance approval. The variance would be for setbacks and buffers only. The conditional use approval for expansion would be for everything. He doesn't agree that it is not possible to get a variance under the County's variance criteria. Mr. Martin said that the variance shall not be based on reasons of hardship based on previous actions of the property owner, and that would be enough to stop the variance from being granted. He doesn't understand that. That provision does not stop the Ostrom company from getting an approved variance, unless they've put themselves in a situation where they absolutely need the variance. The variance is intended to accommodate hardships with respect to the size of the property. One element for getting a variance is a hardship or special circumstance with respect to the size of the property. Ostrom's property is small, given the fact that the setbacks would keep them from expanding. With potential relief from setbacks through the variance process, Ostrom can go through a process to expand. There are many cases where variances are required for expansion of nonconforming uses. It is not the wrong tool. It is a tool that can be used to give relief from setbacks and buffers. In shoreline permits, they often have hearings Planning and Development Committee, 6/21/2005, Page 3 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 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. that come before the Hearing Examiner that require both the shoreline conditional use and shoreline variance at the same time. It is not contradictory or an additional burden. It is the same with a zoning variance and conditional use process. It's just additional review. Regarding the conditional use criteria, one element to apply for expansion is that there be no detrimental effect on the neighbors. Ostrom wants a straight exemption from buffers and setbacks. If Ostrom applies for a conditional use, there can't be conditions on buffers and setbacks. The Council can re -craft the conditional use criteria for this ordinance that would have special conditional use criteria for this ordinance, to request the exact same thing that can be done with a variance. It would cause a significant delay. There is no reason to do that. With the conditional use process going forward with the variance, all the questions can be answered. No arguments will be made that they are exempt completely from setbacks and buffers. Ostrom would have to get both approvals. The ordinance is a workable ordinance. They understand that Ostrom doesn't like it. Put the ordinance forward, given the time spent on it. If the legal counsel can't tell the Council it's illegal, than go forward. Of the points made in the letter by the Ostrom attorney, one was that they might have to do another State Environmental Protection Act (SEPA) review. That is not correct. The County agrees that a SEPA isn't necessary. Also, as long as the Council has its own public hearing, there is no need to go back to the Planning Commission. The amendments to existing or new development regulation ordinances do need to go to the State Department of Community, Trade, and Economic Development (DCTED) as soon as possible. DCTED has a 60 -day comment period. There is one provision in the statute that allows the County to request an expedited review from DCTED. Make that request. McShane stated there is criteria for the Hearing Examiner and staff in the shoreline program. It is not specific to mushroom substrate. Shoreline variances are very specific. Carmichael stated the variance process in the shoreline program is similar to the zoning variance process. There are strict criteria that apply to different kinds of land uses that happen to be within the shoreline. The criteria are not specific to different kinds of uses. There is a parallel between shoreline variances and zoning variances. McShane asked what there is for the Hearing Examiner to look at in the code if the facility requests a variance for an expansion, such as to meet the Health Code. There is no variance for that purpose. The variance is only on the setback. He asked if there is anything for the Hearing Examiner to look at. Carmichael stated the Hearing Examiner would look at the criteria for variances. If the Planning and Development Committee, 6/21/2005, Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 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. setbacks are too large and the property is too small, it is a hardship. The Hearing Examiner can and does rely on hardship to grant a variance. In this case, the argument would be made that the setbacks and buffers are too big for the property. A special circumstance would be warranted. The protection for the neighbors comes in that the expansion can't be injurious to the property or improvements in the vicinity. McShane stated a shoreline variance process has criteria that people have to meet to be allowed to violate the shoreline rules. The zoning variance is not specific to anything. It just references the use of the land. The Hearing Examiner could say that the company doesn't have to do mushroom composting, and that the company can do other things, which therefore doesn't cause a hardship. Carmichael stated the shoreline variance has a criterion that one must not have any other reasonable use of the property. That language isn't in the zoning variance. If the case can be presented that the company is unable to expand unless relief is granted, then the case is made. McShane stated there are only two mushroom composting facilities in the county. They know that this ordinance affects only one mushroom composting company, which will not be able to meet this requirement. He asked why they don't just define it up front instead of going through this variance process. Define exactly what they need to do to violate those buffers. Carmichael stated one reason is that they would have to get a conditional use permit, which means it won't have a detrimental impact to the neighbors, such as moving the facility too close to the property line. If the Council gives Ostrom a variance instead of a exemption, then the company must prove that they won't have adverse impacts on the neighbors with respect to buffers and setbacks. However, granting an exemption from setbacks and buffers for nonconforming uses that want to expand is a precedent. Frakes stated the Council can compromise with something that states the company doesn't have to comply with buffers and setbacks if it can show there won't be any adverse impact to the neighboring properties. That would satisfy Mr. Carmichael's concerns. This ordinance impacts one nonconforming use. The variance criteria raises questions. The purpose should be to avoid adverse impacts to neighboring properties. It would be a cleaner process to condition it that way administratively. Wolf stated he disagrees with Mr. Carmichael's characterization of the variance tool. (Clerk's Note: End of tape one, side A.) Wolf continued to state that there has been a gross mischaracterization of the Ostrom's facility by implication. Ms. Frakes is correct. All they need is a tool that allows compatibility with adjoining uses to be adjudicated. That language creates self - limitations. It clearly states this is a use to be watched and the Planning and Development Committee, 6/21/2005, Page 5 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 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. property owner should have the opportunity to prove compatibility. The language refers to the conditional use criteria in Whatcom County Code 20.84.220. Eight criteria are all designed to adjudicate the various issues Mr. Carmichael referenced. They don't need another tool on top of this. The variance tool is designed for strange parcels that can't comply with existing zoning regulations. They've proposed something consistent with what Ms. Frakes offered. He stands by his proposal. In the future, the company is willing to explain its operation and actual expansion plans. McShane stated two people mentioned Ms. Brenner for bringing this forward. This committee supported the exemptions. The full Council did not support those exemptions. Ms. Brenner took a brave stance to reverse the direction of that outcome. That's why they are here now. It's a matter of trying to figure out a compromise acceptable to the Council. Brenner moved to recommend approval of the ordinance as it is to the full Council. Fleetwood stated he is against the motion at this time, in light of the recommendation from legal counsel to adjourn to an executive session to take this up further. They have to have an executive session with the full Council. McShane stated he is struggling to understand the implications. He wants to do the right thing, and would like to hear neutral input that he trusts. Crawford stated the committee can make a recommendation to the full Council to have an executive session in two weeks. Crawford asked if there is a timeframe they must follow. Fleetwood stated they will work to craft something that might be a compromise and work for everyone. Brenner withdrew her motion. Fleetwood moved to recommend to the full Council to have an executive session in at its next regular meeting. Motion carried unanimously. OTHER BUSINESS There was no other business. Planning and Development Committee, 6/21/2005, Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 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. ADJOURN The meeting adjourned at 4:02 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, 6/21/2005, Page 7