HomeMy WebLinkAboutNatural Resources November 12 20021
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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
Natural Resources Committee
November 12, 2002
The meeting was called to order at 9:00 a.m. by Committee Chair Sharon
Roy in the Council Chambers, 311 Grand Avenue, Bellingham, Washington,
Present:
Seth Fleetwood
Dan McShane
Also Present:
None
Absent:
None
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. PROPOSED WHATCOM COUNTY COMPREHENSIVE PLAN AMENDMENT
TO EXPAND A MINERAL RESOURCE LAND DESIGNATION NEAR
MINAKER ROAD SOUTH OF SUMAS (BENNER SITE) (AB2002 -084L)
Roy stated they would discuss this item and the next item at the same time.
The Planning Commission recommendation was for approval, with the condition on
the access. The Council received a letter from John Sitkin, representing the
Benners.
Jon Sitkin, Chmelik Sitkin & Davis, P.S., stated the Benners are asking that
the Benner and Killam applications are approved without conditions on access.
That is in issue for the permitting process. If that can't happen, then he asks that
the applications be held until the countywide aggregate study is finished. Given
the exclusions and pipeline setback requirements, neither of these applications can
go forward individually.
Roy asked if the Killam's approve of that recommendation.
Lesa Starkenburg - Kroontje, attorney for the Killams, stated she just
received the document, and has not had time to review it. She concurs that these
applications should move forward without access restriction. She explained the
history of the access condition. The condition is inappropriate at this time. She is
here asking for a Comprehensive Plan amendment and a zoning map amendment.
She is not here asking for a permit. Access is better dealt with during the
permitting process, which will take a close look at the access possibilities of the
area. Now, they are not asking to remove gravel and create truck traffic. They
are only asking that gravel areas be reserved for future use. The State
Department and Natural Resources (DNR) and Whatcom County require permits
Natural Resources Committee, 11/12/2002, 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.
for mining gravel. At that time, neighbors within 1,000 feet are notified of the
mining application. The neighbors would have something concrete to comment on.
The Benners and Killams are negotiating access issues. Until there is a plan of
operation for either property, it's difficult to have an easement grant. She will
have to research whether or not the Killam property meets the mineral resource
land (MRL) criteria individually.
Waiting for the aggregate study to be done is not necessary. The
Comprehensives Plan specifies that Whatcom County designate a minimum of a
50 -year supply of aggregate. The supply has been estimated at less than 50
years. The Council would not violate the Comprehensive Plan by placing these
properties into MRL status because the Comprehensive Plan specifies a minimum,
not maximum, designated supply of 50- years. The Council should protect as much
as possible.
If the Council does not approve the applications without conditions, it may
be appropriate to approve just the eastern portion of the Killam property
immediately, and leave the western portion until the aggregate study comes
forward. She would rather have the application denied, but held until the
aggregate study comes out.
Fleetwood asked why the Killam property is divided into east and west
areas. Starkenburg - Kroontje stated the property is divided into two strips. The
Benners' property lies in the middle. In the event that the Council wants to
condition the Benner's application on access through the Killam property, or in the
event that the Council would deny the Benner's application, then the Killam's
western portion would not meet the criterion that says they cannot surround
parcels by over 50 percent. The Benner parcel would be enclosed on three sides.
If the Benner's parcel were not approved, the western portion of the Killam
property would not be approved. The eastern portion of the Killam property can
qualify on its own. The Benner's dispute whether there are one million cubic yards
on the eastern property because of slopes and setbacks.
Sitkin stated the GeoEngineers report removed the area of the pipeline
easement, but not the pipeline setbacks on adjacent slopes.
Starkenburg - Kroontje stated the setback is not a law.
Sitkin stated it is a State Environmental Policy Act (SEPA) permitting
condition.
Starkenburg - Kroontje stated the setback could be further reviewed based on
mining plans.
Debra Benner, applicant, stated there are three high pressure gas pipelines
going through the eastern portion of the Killam property. The Council can pick and
Natural Resources Committee, 11/12/2002, 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.
choose the east or west side of the Killam property if it denies the Benner
property. The Council doesn't have to go to the east side.
Sitkin stated the two sides each have to meet the one million cubic yards
criterion.
Starkenburg - Kroontje stated that western portion doesn't have enough
aggregate on its own. That's why it makes sense for both properties to be one
M RL.
Sitkin stated there is not a mining plan yet, so there is not a reason to
legislate mitigation without an operation plan.
Starkenburg - Kroontje stated it is likely that these properties will move
forward for mining permits with a joint plan because they won't want setbacks
from each others property lines, will want to mine to a final grade, and will want to
share things such as equipment. It may not be the same operator on both sites,
but it is likely. At that point, any issues of access over Killams' property would be
very easy to resolve. At this point, when no one knows who the operators are or
what the plan of operation is, the Killams are reluctant to provide an easement.
Fleetwood asked if the Growth Management Act (GMA) requires that
counties provide a 50 -year supply of aggregate. Starkenburg - Kroontje stated it
does not. The Growth Management Act indicates that counties should designate,
classify, and protect their resources. It does not indicate an amount. The DNR
developed implementing guidelines to the Growth Management Act to give
guidance to counties and cities on how to designate mineral resources. Whatcom
County took those guidelines and set up its Comprehensive Plan goals, policies,
and designation criteria that designate a 50 -year supply.
Fleetwood stated Whatcom County believed it had done that in 1997 when
the County Council adopted the Comprehensive Plan. He asked about the
procedure for readdressing the issue of supply. Starkenburg - Kroontje stated the
Action Plan of the Comprehensive Plan indicated that there would be a
Comprehensive Aggregate Study within five years of the adoption of the
Comprehensive Plan. They are currently doing that study now. The results may
be available by next April. The Comprehensive Plan also requires that the County
do updates every seven years.
Sitkin stated that in 1997, there was such a dispute about whether the
designated supply was accurate that the County Council wanted a study to
determine if the 1997 estimates were accurate.
Starkenburg - Kroontje stated the question is whether the Council wants to
wait for the aggregate study or needs to wait for the aggregate study. The
question is not whether or not they need it for the 50 -year supply, but whether
this is good aggregate to protect. The Comprehensive Plan sets up the guideline of
Natural Resources Committee, 11/12/2002, 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.
a minimum of a 50 -year supply. The aggregate study will tell them that they need
gravel, which they already know today. This site is already a proven resource of
gravel. She doesn't know whether the study will tell them anything they don't
already know with regard to this particular request.
Fleetwood asked if Ms. Starkenburg - Kroontje believes that any place in the
county that is proven to have gravel should be an MRL. Starken burg- Kroontje
stated she does not. The County's Comprehensive Plan designation criteria define
where gravel resources should be protected. These sites meet that designation
criteria, and are therefore appropriate for designation.
Sitkin stated the Comprehensive Plan designation criteria do not include a
reevaluation of the 50 -year supply. The general Comprehensive Plan policies are
that additional areas close to existing operations should go forward, not in areas
that don't have existing operations. That's why these applications meet all the
criteria for designation in the Comprehensive Plan.
Starken burg- Kroontje stated that Mr. Sitkin's suggestion of holding these
applications is only as an alternative to denial.
Fleetwood asked when the County Council will address the Comprehensive
Plan MRL question.
Matt Aamot, Senior Planner, stated it is scheduled for 2004.
Sitkin stated that, because of County staff workloads, the schedules aren't
always met.
McShane asked the thickness of the deposit.
Doug Goldthorp, Senior Land Use Specialist /Geo- hazards, stated the reach
was only 12 feet. There is speculation that the thickness is deeper than that.
Starkenburg - Kroontje stated the GeoEngineers report indicates that, based
on the well logs in the vicinity, the depth extends to 51.5 feet below the ground.
McShane stated the quality of aggregate varies at that depth.
Fleetwood asked why the staff originally recommended denial instead of
approval with conditions. Aamot stated there was no study of the site at that
time. Staff thought a couple of the criteria would not be met. However, now the
study is done, the criteria will be met. If the two applications go together, staff is
comfortable recommending approval. The only issue is the access condition.
County attorneys have been uncomfortable applying that condition to the Killam
application.
Natural Resources Committee, 11/12/2002, 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.
Roy asked if there is anything, such as a legal obligation, that requires the
Killams and Benners to continue operating together if the Council approves the
applications together.
McShane stated there is going to be significant financial motivation for the
two families to work together. It won't be simple.
Roy asked what happens if one of the parties decides to do something such
as donate the land to the Land Trust. Sitkin stated the other party will still have to
meet permitting requirements. Having the overlay doesn't meet that it is treated
as a mine.
Starkenburg - Kroontje stated there is still a property line between the two
parties. Noise is measured at the property line. These two parties could make life
miserable for each other unless they work on an operation together. Neither
landowner is a gravel company, so they are speculating on who the operator may
be. When they get to the operating stage, these are dealt with fairly and quickly.
This type of thing happens throughout the county. There are five different site
owners, including Whatcom County, at the Axton site.
McShane stated the Killam property would independently meet the criteria,
but they would not be able to mine as much.
Roy stated she is worried about the Council going against the County's own
regulations. It seems loose that these meet the criteria only as long as everyone
works together.
McShane stated the purpose is to set the land aside and protect it for future
mineral extractions. It doesn't have to be mined right away. If the parties work
together, than that's great. The purpose is to protect a significant resource and
determine if this is a worthwhile resource. He has a problem with the way the
permits are sometimes worked regarding the impact of gravel mining on roads.
Roy asked if there are other MRL's in the county that cross property lines.
McShane stated the requests come forward from a landowner, based on
someone's desire to have their property added.
Starkenburg- Kroontje stated the designation criteria refer to a deposit of
one million cubic yards, which doesn't follow property lines, but it also refers to
parcels and parcel size. The volume criterion is based on the total deposit.
McShane moved to schedule a public hearing with a committee
recommendation of approving these two applications without the access condition.
Fleetwood asked if it is correct that the Comprehensive Plan process called
for discussions on where to establish MRL's, and, once those locations are
Natural Resources Committee, 11/12/2002, Page 5
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.
1 established, they would remain until the Council convened another large policy
2 discussion on whether the locations should be changed. He is reluctant to alter
3 those locations until they re- designate MRL's. Sitkin stated that if that were the
4 intent, they would not have developed designation criteria and a process for
5 changing or adding areas as they go along. The policies in the Comprehensive
6 Plan did not intend that the locations would not be changed. There is a clear
7 amendment process with criteria. The Comprehensive Plan policy of a minimum
8 supply is a floor, not a ceiling. The Council did determine back then that it would
9 not include small deposits and that it preferred to look at existing sites. The
10 Council then determined that it did not want a proliferation of small deposits.
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12 Starkenburg - Kroontje stated that policy intent is true of the designation of
13 MRL's in agricultural lands. The Comprehensive Aggregate Study is to establish
14 whether or not the County will have another policy discussion about designation of
15 MRL's in agriculturally designated lands. Until that study is complete and they've
16 had that policy discussion, there will be no additional designations in agricultural
17 lands. As far as other lands go, the Council anticipated that they would be dealt
18 with on an application basis. There is a process for that. The policy intent for the
19 seven -year review is for properties that have become exhausted and should be
20 removed from the MRL. Landowners will not come forward to the County and pay
21 to have their lands taken out of the MRL designation. The policy discussion will
22 also consider whether or not people are coming forward to volunteer their
23 properties for MRL status.
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25 Fleetwood asked if this process results in ensuring that they don't get
26 applications every year to expand mineral resource areas. He needs assurance
27 that there will be occasions where the Council denies a designation. Starkenburg-
28 Kroontje stated that the Council may determine that it needs to go through a new
29 process of establishing a 50 -year supply. After that is done and when someone
30 wants to come forward with an individual request, the Council can say that nothing
31 has changed.
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33 (Clerk's Note: End of tape one, side A.)
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35 Starkenburg- Kroontje continued to state that the Council can weed out
36 those requests that should not come forward.
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38 Goldthorp stated the resource is continually diminishing. The designation
39 process will supplement the diminishing resource. There will never be a time when
40 they always have a 50 -year supply because the supply is reduced on a daily basis.
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42 Fleetwood asked if the question of reclamation is dealt with during the
43 permitting process. Goldthorp stated a condition of the County permit is that the
44 site has a State reclamation permit in hand before it begins.
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46 McShane stated that is a good issue to think about, but it is not a part of
47 this process. The Council did add a condition to reclamation in agricultural zones.
Natural Resources Committee, 11/12/2002, Page 6
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DISCLAIMER: This document contains the Whatcom County Council or Committee
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are not the final approved minutes.
Starken burg- Kroontje stated the reclamation bond requirement has increase
substantially in the last couple of years. That adds pressure for someone to finish
an area so it is removed from the bond.
Fleetwood asked if staff is now comfortable with the approval with
conditions. Aamot stated the staff believes the criteria are met. The only issue is
access. The neighbors to the south on Minaker Road were concerned about access
to Minaker Road, so the Planning Commission recommended conditioning approval
on access going to the north.
Fleetwood stated Councilmember McShane's motion removes the condition.
Starkenburg - Kroontje stated the motion also allows the Council to have a
public hearing on that condition.
McShane stated the permit application would come to the County for an
administrative decision. The neighbors to the south are not happy with it. He
asked how much flexibility the administrators have to say it's not a good idea, and
deny the permit. Goldthorp stated that whichever way the administrative decision
goes, it would create a problem for someone. The decision is likely to end up
before the County Council on appeal anyway.
Sitkin stated the criteria do not address the impact on adjacent land uses.
It is a policy, which comes to play in the mining permitting stage.
McShane stated the Council should revisit its MRL designation criteria.
Sitkin stated the suggestion to condition an MRL designation on concerns
about impact is inappropriate. They don't know what the impact will be unless
there is a plan of operation.
Roy stated that if the Council denies the request, there won't be any impact.
Starkenburg - Kroontje stated the County has the ability to limit traffic during
the permitting process.
Sitkin stated the SEPA process includes a public notice and comment period.
Aamot stated it is appropriate to consider policy when considering a
Comprehensive Plan amendment. The Code states that certain criteria must be
satisfied to approve a Comprehensive Plan amendment. One of those criteria is
that the amendment be consistent with the Comprehensive Plan, which contains
policies. Staff typically considers those policies during a Comprehensive Plan
amendment process. These applications are not unique to exclude policy
consideration.
Natural Resources Committee, 11/12/2002, 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.
McShane stated the County could anticipate those impacts. The purpose of
an MRL is to protect it for mining. If they can anticipate that the impacts are so
enormous that no one is ever going to get a mining permit, it might not be a good
idea to designate that area as an MRL. It's okay to consider that.
Sitkin stated there are no facts yet about what the impacts will be. He tried
to submit information about what the actual road conditions would be.
Roy restated the motion to schedule a public hearing on this agenda item
and the next agenda item with a committee recommendation of approving these
two amendments without the access condition.
Fleetwood stated he is satisfied that the designated criteria are met. He
believes that the applicant who meets those designated criteria are entitled, as a
matter of law, to approval. However, he's heard enough concern from neighbors
that led him to believe that the condition is appropriate.
Motion carried 2 -1 with Fleetwood opposed.
2. PROPOSED WHATCOM COUNTY COMPREHENSIVE PLAN AMENDMENT
TO EXPAND A MINERAL RESOURCE LAND DESIGNATION NEAR
TELEGRAPH AND MINAKER ROADS, SOUTH OF SUMAS (KILLAM SITE)
(AB2002 -084M)
See the above item.
3. PROPOSED WHATCOM COUNTY COMPREHENSIVE PLAN AND ZONING
AMENDMENT TO EXPAND A MINERAL RESOURCE LAND
DESIGNATION ALONG H STREET ROAD EAST OF BLAINE (JORDAN
SITE) (AB2002 -084N)
Matt Aamot, Senior Planner, submitted a map of the area (on file). It is
rural area. There are mineral resource land (MRL) designations adjacent to the
site to the north and east. The area to the north has a permit to mine. There is
also an MRL to the southwest. The area is zoned rural, one unit per ten acres
(R10A). There are some wetlands on the northern portion of the site. There will
have to be buffers and mitigation. It is in an aquifer recharge area. There are no
significant pipelines. The City of Blaine wellhead protection area is to the west by
about 2,000 feet. This is an area identified as having potential mineral resources
according to the State Department of Natural Resources (DNR) study.
The only outstanding issue at the Planning Commission was that Ms. Jordan
did not submit an aggregate report regarding the quality of the material onsite.
Since then, the staff has received a report from Anvil on that site.
Doug Goldthrop, Senior Land Use Specialist /Geo- hazards, stated the report
the staff received from Anvil satisfies all but one criterion, which is about the
Natural Resources Committee, 11/12/2002, 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.
quality of the material. There is a test that was not done. This property is unique
because the MRL's around it have one million cubic yards. Mrs. Jordan did the
minimum requirements to satisfy the MRL designation criteria. The laboratory
testing is not in Mrs. Jordan's financial means at this time. However, the nature of
the deposit is that the reworking of glacial materials forms the gravel. The
material is the same as what underlies it. His professional opinion is that there is
a high probability that the material under Mrs. Jordan's property is similar to that
material that lies in the surrounding MRL properties.
Roy asked if the information provided is adequate to address the question of
quality without the lab test. Goldthorp stated they can't guarantee anything, but
scientifically there is a high probability.
Fleetwood asked if the one million cubic yard requirement is for the area
subject to the application. Aamot stated the requirement is for the total deposit.
Roy asked what is next door to Mrs. Jordan.
Delores Jordan, applicant, stated the land next to her is empty.
Roy stated there is no mining going on in the area, but it is all designated as
a mineral resource land (MRL). Jordan stated the State of Washington plans on
mining on its site. The people behind her will mine their gravel soon. They have
not received their permit yet. She doesn't want to live in a mining area. If they
need the gravel, then take it, and she will move.
Roy asked if they are supposed to keep going and going down H Street.
Jordan stated everyone in the neighborhood has had an opportunity to speak. No
one has.
Fleetwood asked if staff operates under the assumption that, if the applicant
meets all nine of the designation criteria than the applicant is entitled to approval.
Aamot stated there are other general policies besides the criteria that the staff
looks at.
Fleetwood asked if all the designation criteria plus the policies are met, and
approval is required to be granted with the condition that the mineral resource
quality be proven. Aamot stated that was the condition that was supposed to have
been met by the Anvil report. The Anvil report was intended to satisfy that report.
Fleetwood asked if the original staff recommendation for denial is changed
to a recommendation for approval because the condition was met. Aamot stated it
is, even though the report didn't provide everything the County technically asked
fo r.
McShane stated the applicant could not find a geologist in short order.
Natural Resources Committee, 11/12/2002, Page 9
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are not the final approved minutes.
Goldthorp stated it was a very small job. Many consultants weren't
interested in doing it.
McShane stated he would abstain from this vote because of an appearance
of fairness issue because he assisted the applicant as a councilmember. He would
only vote if there were to be a tie vote.
Roy asked about the agricultural soils. Aamot stated the agricultural soils is
a consideration, but there is no criterion that says they can't approve the
amendment. On this particular site, there are also wetlands in the same area,
therefore the agricultural soils would be less of a concern.
Roy stated her only concern is about continuing the MRL down the road.
McShane stated the natural end point is the end of the deposit.
Roy moved to recommend the amendment for approval to the full Council,
as recommended by the Planning Commission. The Planning Commission's
recommended condition has been met.
Fleetwood stated the criteria and policies have been met. To address the
Council's concerns about where the MRL stops, they need to have a policy
discussion later.
Motion carried 2 -0 -1, with McShane abstaining.
OTHER BUSINESS
There was no other business.
ADJOURN
The meeting adjourned at 10:20 a.m.
Jill Nixon, Minutes Transcription
ATTEST:
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Natural Resources Committee, 11/12/2002, Page 10
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.
1 Dana Brown - Davis, Council Clerk Sharon Roy, Committee Chair
Natural Resources Committee, 11/12/2002, Page 11