HomeMy WebLinkAboutPlanning October 26 20041
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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
October 26, 2004
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
Laurie Caskey- Schreiber
Also Present:
Sam Crawford
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. CONSIDERATION OF HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND RECOMMENDATION TO THE WHATCOM
COUNTY COUNCIL REGARDING GEORGIA STRAIT CROSSING
PIPELINE'S REQUEST FOR SHORELINE SUBSTANTIAL DEVELOPMENT
AND SHORELINE CONDITIONAL USE (AB2004 -360)
Dave Grant, Senior Civil Deputy Prosecutor, stated the Council ought to
remand the item back to the Hearing Examiner until the Georgia Strait Crossing
folks submit an application for a major development permit (MDP). The matter
requires that permit. The issue regarding the shoreline permit is not ripe for
Council review at this time. The Hearing Examiner, in his decision, concludes that
the pipeline project is a major project. There are two criteria needed to require a
MDP. First is cost. This cost is $90.7 million. According to Whatcom County Code
(WCC) 20.88.120, the cost must be over $5 million. Second, a project must
require State Environmental Protection Act (SEPA) review. Those two conditions
apply to this project and put the project within the scope of a MDP process.
A SEPA review was conducted and final environmental impact statement
(EIS) was published and accepted by the Federal Energy Regulatory Commission
(FERC). WCC 20.88.205 says a MDP application should be filed. That has not been
done. Had the project not qualified as a major development permit project, the
Council could take action on the Hearing Examiner's decision. However, since an
MDP is required, he recommends remanding the issue to the Hearing Examiner.
The MDP process requires the Hearing Examiner to look at all the consolidated
permits at one point in time, including critical area permits and incursion permits.
The MDP process requires a consolidated review to allow for more efficient review
for all. If the Council send this project back to the Hearing Examiner, the Georgia
Strait Crossing (GSX) project will have all local permits done expeditiously.
Planning and Development Committee, 10/26/2004, 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.
Fleetwood asked if the Council has authority to remand. Grant stated there
is no other option. The matter is not ready for Council review until such time as the
MDP application is received.
Fleetwood stated the Hearing Examiner's report indicates the project is
subject to and conditioned upon an MDP, and the Council could take action. Grant
stated the Council can't act upon a permit that hasn't been sought. Review should
be part of a MDP.
Brenner asked if the MDP has to be sought, but not obtained. Grant stated
no. Initially, GSX asked Roland Middleton if planning permits would be required.
Mr. Middleton told GSX they are not because he felt that FERC would preempt local
processes. However, a government cannot be stopped from enforcing its own legal
requirements. It's proper to hold GSX to code requirements in this instance. FERC
did not expressly preempt local regulations. In fact, FERC ordered GSX to
cooperate with local governments and obtain permitting concessions consistent
with local code.
Crawford asked if the need for a MDP came up during the shoreline
application process with the Hearing Examiner. He asked if this is the first the
applicant has heard that he needs a MDP. Grant stated the first the applicant heard
of this was during the Hearing Examiner argument process. GSX argued that the
County failed to act within a certain amount of time regarding the shoreline permit,
and therefore the County waived its objections with respect to shoreline
consistency. Based on those arguments, it became clear that the time deadline
was inapplicable in this case because an MDP was required. There isn't a timeline
for those applications under County ordinances.
Crawford asked if the Hearing Examiner considered it, and decided to move
forward with the shoreline permit. He asked if Mr. Grant's position is to not go
forward with the shoreline permit, and remand it back to the Hearing Examiner to
consider that aspect. Grant stated the County Planning staff urged the Hearing
Examiner to move forward. This is the first time County staff has asked to put the
brakes on the process.
Fleetwood asked if there is no prejudice to any party because they won't be
able to act until there is an MDP. Grant stated that's fair to say, although the
applicant may disagree. The applicant will need to apply for other local permits.
All of that should be consolidated into one permit process and brought back before
the Council at that time.
Caskey- Schreiber stated the recommendation makes sense. She doesn't
know how to authorize something until they know all the areas that it will affect.
She likes the idea of remanding the issue back to the Hearing Examiner.
Planning and Development Committee, 10/26/2004, 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.
Fleetwood asked if there are time requirements on how soon the Council
must make a decision on an appeal of the Hearing Examiner's decision. Grant
stated there is, but it assumes an MDP has been sought, which hasn't happened.
Fleetwood asked if the Council is limited to considering the record, or if it can
hear from the public. Grant stated that had the proper permit been applied for,
there would be further public hearings. A broader record could be developed.
However, they don't need to take more information today because the information
needed to make a decision is already on the record. They know the project has a
certain value in excess of $5 million, that SEPA review is required, and that the
Hearing Examiner already concluded that this project is subject to an MDP.
Crawford asked if preservation of the integrity of the record prevents the
Council from allowing the proponent to talk to the Council today. Grant stated it
does not. If the Council finds itself making a decision on this issue tonight, it can
excise comments from him and Mr. Snarr.
Steve Snarr, senior counsel for Georgia Strait Crossing pipeline project,
stated a letter of October 13, 2004 invited a GSX representative to appear at this
meeting and before the Council. The letter indicates that the GSX matter would be
discussed and the Council would encouraged a representative to attend to answer
any questions that may arise. That letter brought him to the meeting. If the
matter is not properly before the Council, the Council may strike them from the
record.
On June 8, 2001, GSX sought a shoreline conditional use permit, which was
rejected. It was finally accepted on January 23, 2002. Whatcom County informed
GSX that the application was complete. During this time, there were discussions
with Planning Department staff about what other permits may be required. At that
time, there was a discussion about MDP's. At that time, an EIS was not required by
the DOE. At that time, GSX did not meet the criteria to have to file for an MDP.
Also at that time, Roland Middleton told GSX that an MDP was not required. GSX
pursued the shoreline permit.
The shoreline permit process was elongated because the DOE decided it
wanted to do an EIS supplemental to the FERC's evaluation. During that study, the
timeline for acting on the shoreline permit was held in abeyance until the study was
complete. The shoreline permit timeline requires 120 days for processing once the
supplemental EIS was done. That time expired. As the Hearing Examiner hearing
approached, he brought up the question of whether the County acted timely. The
County brought up the question of whether this needs an MDP, and the shoreline
permit timelines do not apply. His view is that this is a shoreline permit. The
County missed the timeline, but GSX would participate in the hearing to see what
the Hearing Examiner would do. He reminded the Hearing Examine that the
shoreline permit was complete for over two years. The County urged the Hearing
Examiner to proceed with the shoreline permit hearing, which he did. Now the
permit is here for Council action.
Planning and Development Committee, 10/26/2004, 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.
According to WCC 20.88.225 indicates there are three courses of action for
the Council, which he read. The statute indicates the criteria the Council should
consider. There are seven criteria for permits to consider in WCC 20.88.130.
Fleetwood asked Mr. Snarr's position on the question of whether or not an
MDP is required. Snarr stated an MDP may be required. In terms of the
consolidation of permits, the WCC 2.33.100 says that consolidation is possible at
the request of the applicant. It's the applicant's choice to go ahead with the
shoreline permit process. The County agreed to proceed with the shoreline permit
process, even though it argued that an MDP is required.
Brenner stated the three choices for Council decision are for a completed
application. Legal counsel indicated that the application isn't complete because it
hasn't gone through the shoreline process. Snarr stated that is inconsistent with
what the County staff told him on February 28, 2002, the County's position during
the Hearing Examiner process, and the County code.
Caskey- Schreiber stated Councilmember Brenner meant to say that the
application isn't complete because it hasn't gone through the MDP process, not the
shoreline process.
Grant stated Mr. Snarr is correct about the provisions of WCC 20.88.225,
however that assumes an application has been sought and a complete application
has been determined. Those actions aren't available to the Council today.
In early spring of 2004, he wrote a letter to GSX indicating that an MDP is
required for this project. Last, when the GSX and County staff discussed the
permits that were needed, the EIS wasn't required at that time. At that time, an
MDP wasn't needed.
Crawford asked if the project would be delayed at the Hearing Examiner until
the applicant files for an MDP. Grant stated it would. There is no MDP time limit.
He can't imagine the MDP process taking two years.
Crawford asked if any State agency gets involved in the MDP process. Grant
stated that will depend on the local permits that are required.
Caskey- Schreiber stated she is satisfied with the reasons given for the
remand to the Hearing Examiner and requiring an MDP permit. She moved to
recommend that the full Council remand the item back to the Hearing Examiner
pending the application of a major development permit.
Crawford asked Mr. Snarr's perspective on whether an MDP is required.
Snarr stated he has not filed for an MDP because of earlier assessment and advice
from the County. The record on the shoreline permit is complete, which the
Hearing Examiner recognized. The Hearing Examiner saw the relationship with the
Planning and Development Committee, 10/26/2004, 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.
major development permit, and decided to use the major development permit rules
to bring this matter to the Council for final decisions. Regarding the major
development permit, he will consider whether or not to file an application. It's
interesting there is no timeline associated with that permit. This GSX application
has been parked for awhile. This is another method to park this application. GSX
can "unpark" this application when local permitting gets in the way of what has
already been certificated by the federal government. He has been trying to
cooperate and work with local authorities. However, they will pursue what they
need to if those things collide.
Fleetwood asked if Mr. Snarr is aware that the matter of FERC jurisdiction is
pending in the 10th Circuit Court. Snarr stated it is an issue the court is looking at.
Caskey- Schreiber stated no one intends to kill this project by stalling it.
They want to address the concerns this project brings up. Everyone who lives in
the Northwest is aware of the sensitive nature of Puget Sound. The proposal could
be a serious threat to the Puget Sound. That's why they want to move as
cautiously as possible. The County wants to make sure this is the right thing for
the community. Snarr stated they have $6 million in studies about the effects to
the Puget Sound.
Fleetwood stated that if the Council is to rely on the advice that it can take
no action on permits, and that the permits are subject to conditions, then it doesn't
matter if the Council remands the item back to the Hearing Examiner because the
project will sit for some time. He's comfortable remanding the item to the Hearing
Examiner.
Motion carried unanimous /y.
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL=
COMPREHENSIVE PLAN
1. ORDINANCE AMENDING THE WHATCOM COUNTY COMPREHENSIVE
PLAN, CHAPTER 2 — LAND USE, CITY OF BLAINE URBAN GROWTH
AREA (AB2004 -342)
Sylvia Goodwin, Planning Division Manager, stated the proposal is for minor
text amendments to the Comprehensive Plan Land Use chapter as part of seven -
year review process of the Comprehensive Plan. The two main issues for Blaine
were clarifying that residential density is four units per net acre and making
references in the policies to shellfish harvesting areas. She read the changes.
Fleetwood stated they established a residential net density of four units per
acre. He asked if there is anything in these proposals that creates incentives for
cities to create higher densities. Goodwin stated there are in some areas. New
residential subdivisions have 7,000 to 8,000 square foot lots, which are small.
Planning and Development Committee, 10/26/2004, 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.
There are a lot of duplexes, four - plexes, and residences above businesses in the
commercial district.
Brenner asked the average prices of the duplexes and houses on small lots.
Goodwin stated the average prices are much lower than in Bellingham.
Brenner referenced Council packet page 267. She doesn't see how to supply
adequate housing for low- income workers in Blaine. Don't include that language,
because it's not true. Goodwin stated affordable is a relative term. They are also
trying to get subsidized housing. Getting market rate housing cheap without a
subsidy is very difficult.
Caskey- Schreiber asked if there is enough flexibility in the plan to
accommodate density that allows more small homes on smaller lots. Goodwin
stated there is. The language specifies a minimum density, not a maximum
density. The trend is going towards smaller lots.
Brenner moved to recommend approval to the full Council.
Motion carried unanimously.
2. ORDINANCE AMENDING THE WHATCOM COUNTY COMPREHENSIVE
PLAN, CHAPTER 2 — LAND USE, CITY OF FERNDALE URBAN GROWTH
AREA (AB2004 -344)
Sylvia Goodwin, Planning Division Manager, stated the update reflects
changed conditions to clarify net developable acres and reflect that the City does
now have a critical areas ordinance. The City is updating its comprehensive plan.
There is an additional update of the description of surrounding areas. There is an
updated to reflect that the County now has an interlocal agreement with the City of
Ferndale.
Caskey- Schreiber asked if there are any changes about swapping out the
entire city, as the City proposed last year. Goodwin stated there are not. The only
reference to that is on Council packet page 316, about the City considering a
Comprehensive Plan amendment to annex the area north of the city. They are not
considering annexing or adding the north Bellingham area into the city urban
growth area (UGA).
Fleetwood asked why the comprehensive plan references what a city may or
may not request in the future. Goodwin stated that for this one, the City of
Ferndale asked for that language. It didn't seem to cause any harm. They didn't
have an adopted plan yet.
(Clerk's Note: End of tape one, side A.)
Planning and Development Committee, 10/26/2004, 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.
Goodwin continued to state that the Council is acknowledging that it will
consider it, not approve it.
Caskey- Schreiber stated the Finance Committee discussed infrastructure for
the Custer area, and speculated about adding infrastructure to areas that will be
annexed in the future. The language is harmless. Goodwin stated the language
doesn't add anything, and the Council can take it out if it wants.
Caskey- Schreiber moved to recommend approval to the full Council.
Brenner stated the language about areas to the East implies that this is an
area that should be included in the Ferndale UGA and was purposefully left out.
Amend the language to add wording on the top of Council packet page 317. The
language as it is now implies that those areas are being considered for UGA
inclusion. Create language that tells the whole truth. That change would require a
public hearing.
Caskey- Schreiber stated she understands the concern, but don't make the
proposed language long and complicated.
Brenner stated there is no mention of anything environmental about
Ferndale, as there is in the other cities. Goodwin stated it's unnecessary to add
that additional information, but the Council could consider it with a public hearing.
Another option is to remove the language altogether.
Caskey- Schreiber stated she agreed. This section is supposed to be about
areas within the UGA.
Brenner moved to remove the underlined language at the top of Council
packet page 317.
Motion to amend carried unanimously.
Motion to recommend approval as amended carried unanimously.
3. ORDINANCE AMENDING THE WHATCOM COUNTY COMPREHENSIVE
PLAN, CHAPTER 2 — LAND USE, CITY OF LYNDEN URBAN GROWTH
AREA (AB2004 -345)
Sylvia Goodwin, Planning Division Manager, stated the amendment provides
clarification of net versus gross developable acres. Council packet page 360 deals
with Double Ditch Creek and Benson Creek. They added protection of anadromous
creeks as they flow through the city.
Caskey- Schreiber referenced Council packet page 360 and asked if the
language makes the distinction about net developable acres in any other location.
Goodwin stated it is made in all locations.
Planning and Development Committee, 10/26/2004, 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.
Brenner asked why Lynden's average net densities are five to seven units per
acre, and Bellingham and Ferndale average net densities are six to eight units per
acre. Goodwin stated that at the time, Ferndale and Bellingham were bigger than
Lynden, and they had a pattern of smaller lots.
Brenner moved to amend net densities at the top of Council packet page
360 "...net densities of f[ve six to seven eight units per net developable acre..." to
be equivalent to Ferndale and Bellingham.
Fleetwood asked if that is a rational argument when they presume that all
cities should have increased densities.
Caskey- Schreiber stated Lynden is one of the fastest growing cities in the
county. Lynden is surrounded by farmlands and the river. It really needs to use its
lands wisely.
Fleetwood stated that a higher density doesn't relieve pressure to sprawl. It
just means sprawl will happen more slowly.
Goodwin stated they should schedule a hearing and give the City of Lynden a
chance to comment.
Motion to amend carried unanimously.
Brenner moved to recommend approval to the full Council as amended.
Motion carried unanimously.
4. ORDINANCE AMENDING THE WHATCOM COUNTY COMPREHENSIVE
PLAN, CHAPTER 2 — LAND USE, CITY OF BELLINGHAM URBAN
GROWTH AREA (AB2004 -341)
Sylvia Goodwin, Planning Division Manager, discussed the amendments.
Troy Holbrook, Senior Planner, stated most of changes are to reflect current
and changed conditions. They are updating the urban fringe subarea plan. That's
where they will be looking at urban growth area (UGA) boundaries, urban services,
and annexation issues. He read the proposed changes.
Brenner stated the language at the end of policy 2T -10 is missing from the
Council packet. Goodwin agreed that several pages are missing from the packet.
Holbrook continued to read the proposed changes.
Brenner stated language encourages larger cities to develop densities of six
to eight units per acre. Bellingham is three times the size of Ferndale or Lynden.
Planning and Development Committee, 10/26/2004, 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.
It should have a net density of eight to twelve units per acre. Bellingham is not the
same as those other cities.
Caskey- Schreiber stated she agreed. There is a way to make high- density
areas attractive.
Brenner moved to amend Council packet page 404, goal 2P, 'Encourage
laFger cities such as Bellingham and FeFnd,'^ to establish new residential
developments at densities averaging six to eight to twelve units per net residential
acre; eneeurage ; ' nden to establish new residential developments at densities
five to seven units peF net Fesidential aere� and encourage remaining
smaller cities..."
Caskey- Schreiber asked if they can do that successfully. Goodwin stated
that language allows fewer single family neighborhoods. Include a broader range
of sizes.
Brenner amended her motion to amend Council packet page 404, goal 2P,
"Encourage Bellingham and FeFnd to establish new
residential developments at densities averaging six to e+ggt twelve units per net
residential acre;
and encourage
remaining smaller cities..."
Motion to amend carried unanimously.
Brenner referenced the grammatical changes to the underlined section of the
last paragraph on Council packet pages 404 and 405, "...i h-e its UGA...."
Goodwin stated the City suggested changes that are all minor, but good
changes. She will put the revised text of these changes in the document to be
introduced at the hearing.
• Page 404, last paragraph, "...The 20 -year population growth forecasts
yes that...."
• Page 406, policy 2T -1, "Establish and periodically review procedures
for joint city /county review of development proposals in the UGA prior
to annexation."
• Page 406, policy 2T -4, "Review land supply analysis and set
appropriate urban growth area boundaries consistent with the Growth
Management Act, Bellingham Comprehensive Plan, County
Comprehensive Plan, County -wide Planning Policies, and Urban Fringe
Subarea Plan."
• Page 407, policy 2T -10, "Annexation should be considered prior to or
concurrently with the extension of City sewer and water and prior to
urban development...."
Planning and Development Committee, 10/26/2004, Page 9
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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.
There is one City recommendation to amend an action item that she doesn't
agree with.
The committee concurred with the City's recommended changes that Ms.
Goodwin read and agrees to.
Caskey- Schreiber moved to recommend to approve as amended to the full
Council as amended.
Motion carried unanimously.
OTHER BUSINESS
There was no other business.
ADJOURN
The meeting adjourned at 4:25 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, 10/26/2004, Page 10