HomeMy WebLinkAboutPlanning April 22 20031
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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 22, 2003
The meeting was called to order at 3:05 p.m. by Committee Chair Seth
Fleetwood in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Present: Absent:
Dan McShane None
Laurie Caskey- Schreiber
Also Present:
Barbara Brenner
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY ZONING
TEXT, CHAPTER 20.40, AGRICULTURE DISTRICT (AB2003 -153)
Kraig Olason, Senior Planner, stated the proposed amendment has two
sections. The first section addresses secondary businesses in the agricultural zone.
The agricultural code allows for goods and services businesses that are agriculture
related in the agricultural zone.
Sometimes it becomes difficult to maintain the businesses strictly on
agricultural services. This proposal will broaden it and allow the same function and
type of business to service beyond the agricultural zone.
Staff made several limitations or conditions to use to evaluate a proposal,
which would be reviewed by the Hearing Examiner in a public hearing. They would
require a statement of intent that the supplemental use would be the subordinate
use, not the primary use. They could also request an annual affidavit from the
business if there is a question about that. A third requirement is that the business
doesn't require additional area. They want to make sure the footprint doesn't
enlarge. A fourth requirement is that it goes before the Hearing Examiner and is
reviewed with the conditions of every conditional use permit, such as those
regarding traffic.
The proposal provides additional opportunities without opening the door wide
open. There were comments at the public hearing regarding mushroom
composting. This specifically does not apply to mushroom composting.
Caskey- Schreiber stated she is wary of examples listed in the language.
Enforcement of planning issues in the County is lacking, so she is leery of getting
into that situation. Olason stated the proposal broadens the original approved use.
Planning and Development Committee, 4/22/2003, 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.
Any conditional use is only as good as the enforcement of the conditions. That is
always a concern.
Brenner stated that if they take that concern to the ultimate, the County
wouldn't allow anyone to do anything. This will be complaint- driven. If someone
doesn't have an appropriate use, there would be enforcement. The County can do
things to help farmers be viable on their land.
Fleetwood asked if the Planning Commission, Agricultural Advisory
Committee, and staff recommend approval of item #1. Olason stated they do.
McShane moved to approve item one in exhibit one on Council packet page
202.
Caskey- Schreiber asked if someone could make an argument that it applies
to any use, since the prohibited uses are not listed. Olason stated they could never
list everything. The test will be whether a farmer's proposal seems to be in line
with the items listed. There is judgment there.
Fleetwood stated the Hearing Examiner makes the interpretation that
something is in line with the regulation. It could be appealed to the Council.
Caskey- Schreiber stated there was a case where the County was obligated to
allow something because it was specifically not listed. Olason stated anyone could
argue anything when it comes to code interpretation. The farmer's proposed use
has to look like the examples listed.
Motion to recommend approval of item one on exhibit one carried
unanimously.
Caskey- Schreiber moved to recommend approval of item two in exhibit 1.
(Clerk's Note: There was no vote on the motion.)
Olason stated this item would expand commercial storage use in the
agricultural zone. Staff did not recommend this request. The Planning Commission
did support it. The Agricultural Advisory Committee did not support item two.
What was changed from the original language was a couple of items to put some
parameters into the language. Existing structures were clarified to be those built
before 1990.
Caskey- Schreiber asked why the Agricultural Advisory Committee was not in
favor of the request. Olason stated there was a lot of concern from the fire
marshal about potential liability. The issue was that there is a lot of property that
could be involved. Some of the buildings are very large. Another issue is that it is
a displacement of agricultural use. The Agricultural Advisory Committee wondered
if it wouldn't convert properties out of an agricultural use. Item one is a business
Planning and Development Committee, 4/22/2003, 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.
that supports agricultural uses. Item two is for anyone with a barn. Item one
requires an agricultural business that has to be maintained as an agricultural
business. They also discussed limiting the footprint.
This request also does not allow mushroom composting or storage. It is not
intended to augment a mushroom operation. One of the concerns was about what
is appropriate. There weren't any parameters to say what is okay and what is not
okay. They don't want to reopen the cottage industry discussion.
McShane asked if it would have an affect on their Open Space /Agriculture
tax dedication if someone used the property for non - agricultural purposes. Olason
stated he didn't know.
Fleetwood stated a summary of the request is that someone can use an
existing building for non - agricultural uses, the use is behind four walls, and the
building was previously used for agricultural purposes.
Lesa Starken burg- Kroontje, Front Street, Lynden, stated the intention of the
request is for property owners with surplus agricultural buildings to be able to use
them. A number of agricultural property owners are currently storing things
commercially, such as vehicles, boats, recreational vehicles (RV's), and trailers.
There are a number of places in the county that advertise their storage. That is all
happening illegally, so there isn't a way for people to count on that income, or
make improvements. One property owner wants to upgrade his buildings, but the
building is over the size limit for a cottage industry. These buildings haven't been
used for agriculture for years.
This would be a conditional use permit, so the Hearing Examiner would have
to find that the proposal met the eight criteria. These are existing buildings that
don't lend themselves to conversion of existing agricultural land.
The Agricultural Advisory Committee first voted in favor of the proposal when
she presented the information to the committee. The fire marshal can track these
things better when it is a conditional use permit. The impact to agriculture is the
same. Signs won't be allowed. The Assessor may value the buildings for more if
they are used for storage. If the farmer is in the Open Space /Agriculture program,
an acre of the parcel is already removed for the buildings, and 20 percent of the
property can be used for non - agriculture related uses.
Fleetwood stated that including a little bit of language would preclude any
abuses of the permit. Starkenburg - Kroontje stated that is why they limit the uses
to buildings built before 1990.
Caskey- Schreiber asked if item two would only occur in the agricultural zone.
Olason stated it would.
Planning and Development Committee, 4/22/2003, 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.
Caskey- Schreiber stated one of her reservations is that some of the farms
are now in neighborhoods, and she is leery of putting a commercial use in a
neighborhood. Olason stated this only applies to agricultural areas. Staff's
reluctance to get into this issue was because it would take more time than they had
to spend on it. Someone might want to go into a more intensive use, and there is
no limit to that.
Starkenburg - Krootje stated that the Hearing Examiner would have to decide
if it is compatible with the goals and policies of the Comprehensive Plan for
agriculture and is not detrimental to the neighborhood.
Caskey- Schreiber stated the staff report says this is in conflict with the
planning goals of the Growth Management Act. Starken burg- Kroontje stated it is if
it allows for additional conversion of agricultural property.
Olason stated the review staff that would look at the conditional use permit
was about how broad they want this to be in the agricultural zone. A farmer might
make more money renting out the building for storage than renting it to the farmer
next door. The inventory is gone if there is an option for someone else who might
have used it for an agricultural purpose.
Crawford asked how renting the building is a conversion. He asked why the
County cares if it doesn't do anything to the land.
Caskey- Schreiber stated it potentially hurts farming if a neighboring farmer
can't rent the building and can't afford to build one.
Starkenburg - Kroontje stated the farmer who owns the building may also be
a farmer who can't make the bank payment because he's not getting any money
out of his empty building. It also assists the farming community.
Crawford asked why this is not an outright permitted use. It doesn't impact
anything. He knows lots of people who rent out their barns.
Caskey- Schreiber stated there are also a lot of agricultural buildings leased
out by neighboring farms.
Crawford stated they are not changing the agricultural land by doing this.
The argument about agricultural preservation is about sacrificing land today that
couldn't be reclaimed for agriculture some day. This has no impact on the land.
Starkenburg - Kroontje stated some farmers might only be using the building
for part of the year to store a crop. The rest of the year it sits empty. A farmer
can lease the building during the off - season. However, the farmer is not allowed to
do that. The examples of how this prohibition is detrimental to the farmer are
more prevalent than the examples of this being detrimental to the farmer if it is
Planning and Development Committee, 4/22/2003, 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.
allowed. This is another way for a farmer to use the building and make it profitable
to stay in the agricultural zone.
Brenner stated there is not a lot of money for farmers to rent out their
buildings. They need to make sure they are not making things so incredibly narrow
for farmers so it is hard for them to stay on their land.
Caskey- Schreiber stated one concern is that a farmer will build a building to
meet farming needs because the building they have is rented out.
McShane stated the land issue is critical. If a farmer wants to maximize
profit, he would ideally sell the land to the highest bidder and the county would lose
agricultural land. The reality is that there are buildings being used for storage on
farms. A condition could be that if a farmer chooses to do this, the farmer doesn't
get to build additional farm buildings.
Caskey- Schreiber agreed.
Olason stated he is thinking about the guidance this language provides to
the Hearing Examiner. A major facility might have a five- to eight -acre structure,
and a five -acre manure pond, and it is noisy. It is a pretty industrial use. He
asked who would be affected by something that could be much more than a farmer
with a few boats in the barn. The issue is with the limit to what this is allowing.
The big operations with lots of money are the issue. This language doesn't have
good guidance to the Hearing Examiner or staff about where they cross the line.
Additionally, they found that it often costs quite a bit to meet the fire code.
People will be reluctant to get their permits anyway. If the code is vague about the
bigger developments, it could happen. There is not a basis on saying no to those
places. There is no size limit on the building.
Starkenburg - Kroontje stated the language here isn't any more general than
other language that the Hearing Examiner has to work with. They could include a
building size limit. It would be acceptable to prohibit building a new building if the
current building were used through this language.
Brenner stated they should include a provision that the building being used
for storage through the conditional use permit is adequate for the same use that a
new building would be built for.
Olason stated some of these people aren't farmers. Some are just
landowners with farm buildings. The landowners are trying to figure out the
highest and best use for the property. They want to give farmers more options, but
he questions whether some of the landowners are farmers.
Starkenburg - Kroontje stated that any time a farmer buys or leases a piece of
property owned by a non - agricultural landowner, it all translates into the
Planning and Development Committee, 4/22/2003, 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.
agricultural zone and agricultural code. One possibility is to work on more specific
language. Don't hold up item one because of item two in exhibit one.
McShane stated he want to spend more time thinking about this. Someday,
they have to figure this out. He would like to schedule a public hearing to approve
item one, then figure out a way to deal with item two in the future. He moved to
recommend the ordinance with item one of exhibit one and schedule a public
hearing. Continue working on item two.
Paul Isaacson, Shallow Shore Road, stated he is appalled by this. His family
has to conform to all the codes and amenities and pay taxes on his family's mini -
storage facility. Someone shouldn't be able to have mini - storage on agricultural
ground without having to meet the codes.
(Clerk's Note: End of tape one, side A.)
Gary Reid, Building Industry Association (BIA), stated barns are part of their
heritage, and they should save them.
Olason stated they could run the ordinance through as it is, and remove item
two after the public hearing. Or, he can reintroduce the ordinance with item one
only.
Caskey- Schreiber agreed.
Fleetwood restated the motion to schedule a public hearing, and introduce
the ordinance without item two.
Motion carried unanimously.
Crawford suggested amending language to include a list of items that are
allowed through the conditional use permit.
COMMITTEE DISCUSSION
1. ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY ZONING
ORDINANCE, TITLE 20, CHAPTER 20.71 — WATER RESOURCE
PROTECTION OVERLAY DISTRICT, CHAPTER 20.80 —
SUPPLEMENTARY REQUIREMENTS (STORMWATER AND CLEARING),
CHAPTER 20.85 — PLANNED UNIT DEVELOPMENTS, AND CHAPTER
20.97 — DEFINITIONS, TO PROVIDE ADDITIONAL REGULATORY
PROTECTION FOR SENSITIVE WATERSHEDS (AB2002 -222B)
(AMENDED VERSION)
Gary Reid, Building Industry Association (BIA) President, stated they all want
to retain the quality of water in Lake Whatcom. He regrets that they haven't taken
Planning and Development Committee, 4/22/2003, 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.
these items into a committee to be discussed in more detail. He has two major
concerns.
The first concern is regarding impervious surfaces. He's met with the State
Department of Ecology (DOE) about what to do with rainwater, which is pure water.
The DOE's preference is to put it into a leaching trench or underground storage.
The DOE is not concerned if they can direct a pipe from a roof to the lake. There
are reasons why impervious surfaces don't have much impact on the lake if they go
into the ground and let it percolate. The negative effect regarding design is
catastrophic if they have the small limits. They will have a difficult time designing a
house that anyone wants to live in. As a minimum, they need to increase the limit
to 3,000 square feet.
The other concern is regarding the tree retention requirements. Eighty
percent of the watershed is in timber, which can be cut. Here, they are imposing
extreme standards on an individual's smaller parcel. The costs are extreme. The
canopy might be at the building site and the rest of the land is wetlands. He asked
if the County is going to tell individuals where to build their houses because the
priority is trees. There is a cost impact. It costs a lot of money to do a tree survey
and to negotiate with the County about how to use the property. There could be
grasses or other plants that hold the slopes equally or better than trees. The cost
to bond for this is costly. It is so complicated and convoluted compared to what
they are gaining. The cost could be tens of thousands of dollars, with little or no
impact to the lake. He doesn't like the tree retention regulation at all.
Caskey- Schreiber thanked Tom Pratum for a study that says maintaining
forest cover is more important than limiting impervious surface area percentages.
The retention of the forest cover is the best way to reduce degradation to any
watershed.
Reid stated 80 or 90 percent of the watershed is forested. A very small
amount of the entire watershed is impervious surfaced. They are talking about
whether they are going to have 50 percent or 70 percent of the very small amount
of impervious surface in the watershed.
Roger Almskaar, land use consultant, stated he urged the Council to put
language in the tree survey section that says the information required will not be
extremely technical so an ordinary landowner can figure it out. Allow a reasonable
compromise between the public interest and the landowner's interest. The
language now is okay, as long as that is the understanding.
McShane stated the language is doable for the ordinary landowner now.
Almskaar stated the product of seasonal clearing is a compromise. It
involves a lot of judgment calls. He urged the Council to adopt it soon and put a
sunset clause in it that requires an official review in six months to a year. They can
see how it is working. He agreed with Councilmember Brenner's third point in her
Planning and Development Committee, 4/22/2003, 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.
amendments memo. If they do that, they will not need to deal with the 50 percent
rule.
McShane stated 3,000 square feet would equal the 50 percent rule for a
standard 15,000 -foot lot. The substandard lots would be affected.
Paul Isaacson, Shallow Shore Road, stated he's spent thousands of hours on
this issue. Within the County's jurisdiction, the County's regulatory district would
never have a tree retention loss that exceeds any of those recommended by the
studies, due to zoning and the public ownership.
McShane stated the tree retention amount should be considered drainage by
drainage. When they get below 65 percent in a creek drainage, they begin to see
impacts that introduces sediments into the lake from that particular creek. That's
what those reports are saying.
Isaacson stated he has never had a meeting with staff or Council regarding
language. They always say they are going to talk, but they never actually do.
Fleetwood stated he disagreed. This committee has held a multitude of
meetings on this issue, going back to last summer. This issue has come before this
committee six or seven times. The committee has bent over backwards to ensure
that it would be immune from this claim that it hasn't allowed public process. This
is the fourth meeting in a row people have been able to come forward and talk
about this. There have been many opportunities. The committee would work on
the version of the ordinance in the packet.
McShane moved to amend Council packet page 175, section
20.80.735(2)(d)(1), "...On lots greater than one acre, but less than five acres, no
more than 50 percent of the existing tree canopy shall be removed. On lots five
acres or greater, clearing trees with a conversion option harvest plan (co -hop) or
conversion is allowed as long as 65 percent of the lot is replanted within the
following growing season, to the DNR planting specifications."
Motion carried unanimously.
McShane moved to amend section 20.80.735(2)(d) at the very top of
Council packet page 175, "...clearing activities en lets than five nerninal acres
shall comply with the following provisions:"
Motion carried unanimously.
Isaacson asked how much can a landowner log if they weren't going to take
out the mature timber. The language assumes that the landowner clearcuts
everything. There is a value to the trees that they don't cut. If they have a seed
block, they might allow harvest. He suggested requiring a minimum of 200 conifers
per acre. Someone could argue that they have a local seed block.
Planning and Development Committee, 4/22/2003, 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.
Fleetwood asked what the standard of 200 per acre is based on. Isaacson
stated it is based on the State Department of Natural Resources (DNR) standard for
a conifer stand.
Roland Middleton, Land Use Division Manager, stated that if the committee
wants the land to be replanted, it needs to state the replant amount. If it wants to
use DNR specifications, they will see a lot of seed blocks and no trees.
McShane moved to amend Council packet page 175, section
20.80.735(2)(d)(1), "...On lots greater than one acre, but no more than five acres,
no more than 50 percent of the existing tree canopy shall be removed. On lots five
acres or greater, clearing trees with a conversion option harvest plan (co -hop) or
conversion is allowed as long as, after the conversion or co -hop, 65 percent of the
tree canopy is retained or, if harvested, is replanted at 200 conifers per acres
within the following growing season."
(Clerk's Note: End of tape one, side B.)
Kurt Baumgarten, Planning Technician, asked if the motion is for 65 percent
of the existing trees or the tree canopy.
McShane amended his motion to amend Council packet page 175, section
20.80.735(2)(d)(1), "...On lots greater than one acre, but no more than five acres,
no more than 50 percent of the existing tree canopy shall be removed. On lots five
acres or greater, clearing trees with a conversion option harvest plan (co -hop) or
conversion is allowed as long as, after the conversion or co -hop, 65 percent of the
parcel will have a tree canopy, either by retention or replanting." If a parcel has
hardly anything growing on it, he wants to make the owner replant it.
Middleton asked if a ten -acre parcel with a six -acre clearing would not be
allowed to clear the remaining property. The property does not have 65 percent in
tree canopy to begin with. He asked if he could allow the property owner to clear
trees to build a home in the tree canopy.
McShane stated his intention is that the property owner should build in the
cleared portion of the lot. If the property owner wants to put the home in the treed
areas, the owner is going to have to plant trees to make up for it, and cover that
cleared portion of the lot with trees.
Middleton asked if the property owner would need to replant 10,000 square
feet of trees or 65 percent of the parcel if the owner cuts 10,000 square feet of
trees.
McShane stated the owner would have to replant to 65 percent of the parcel.
Planning and Development Committee, 4/22/2003, Page 9
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Fleetwood asked if the motion is clear or will create an ambiguity. Isaacson
stated it is not clear.
Fleetwood stated the next committee meeting would be a work session just
for councilmembers. He closed the public comment for this issue. They will hold
this over in committee.
(Clerk's Note: The motion was not voted on.)
OTHER BUSINESS
Roland Middleton, Land Use Division Manager, stated he was present to
discuss enforcement and compliance issues.
Caskey- Schreiber stated she had made a comment to Hal Hart about all the
complaints she's heard about the County's lack of enforcement. She understood
that the division was short one staff person, but that position has been filled. She
asked if enforcement would get better. She asked if the division is able to keep up
with complaints and enforcement. Middleton stated they are not able to keep up
with it. He doesn't know how they can.
Caskey- Schreiber stated it has become clear that the County is not meeting
the demands as the county grows.
Middleton stated the old building and code department was established to
look at people who wanted to build the right way. The department was never set
up to enforce all the different regulations that have come up. They are becoming
more of a police force than they envisioned. The Columbia Valley is an example of
an area that will never be cleaned up the way Point Roberts was cleaned up. The
real issue is that, as the regulations become more complex and as the county
becomes more urbanized, they have to prioritize the enforcement efforts. There is
no way that they will get to the hundreds and hundreds of minor complaints.
Caskey- Schreiber stated the State Department of Ecology just put the
enforcement capabilities for manure into the Department of Agriculture. That
means the County Planning Department is going to have to start enforcing the
manure ordinance. That will be a nightmare. Middleton stated it is already a
nightmare for the agricultural nutrient ordinance. As the Council is adopting the
ordinances, don't have the illusion that the County has enough staff to chase down
every violation. They do have to prioritize. Until there is a significant increase in
staff, which won't happen anytime soon, they will still prioritize the complaints.
Compliance has the fastest turnaround of any position in the County. Things such
as noise ordinances can't be enforced.
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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.
ADJOURN
The meeting adjourned at approximately 5:00 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, 4/22/2003, Page 11