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HomeMy WebLinkAboutPlanning April 9 20021 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. WHATCOM COUNTY COUNCIL Planning and Development Committee April 9, 2002 The meeting was called to order at 3:05 p.m. by Committee Chair Dan McShane in the Council Chambers, 311 Grand Avenue, Bellingham, Washington, Present: Absent: Seth Fleetwood None Laurie Caskey- Schreiber Also Present: L. Ward Nelson OTHER BUSINESS McShane stated they will talk about a first quarter comparison of building permits. The number of permits is up. Hal Hart, Planning and Development Services Director, stated the value of commercial permits this year is up to $17 million in the first quarter. That is about equal to the value of new homes that are coming into the county. They are seeing a lot of activity out of the gate this year. The Planning Department permits anytime there is land disturbance. Subcomponents of that would be critical areas reviews, inspections, and mitigations. The shoreline information is aggregated. There is one person on staff for State Environmental Protection Act (SEPA) review. The one bright sector in the national and local economy now is housing. People are still investing in the county. He will provide this update to the councilmembers every quarter. Nelson asked if this reflects interest rates two or three months ago. Interest rates have dropped down more. He asked if that influences new construction. Hart stated lower interest rates wouldn't hurt new construction. Nelson asked how many commercial projects are included. Hart stated he would find out that information. COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL 1. RESOLUTION INITIATING A ZONING TEXT AMENDMENT TO INCLUDE BEST AVAILABLE CONTROL TECHNOLOGY FOR NOISE AND ODOR EMISSIONS AS AN ADDITIONAL CONDITIONAL USE CRITERIA (AB2002 -165) Planning and Development Committee, 4/9/2002, 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 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. Caskey- Schreiber stated she proposed this ordinance. She now proposes a ninth criterion for a conditional use permit (CUP) that would lower the threshold slightly and encourage any kind of business or operation to adhere to the best available technology industry standards to mitigate noise. The criterion would assure residents that they will not be disturbed. This is a good direction to take, given the complaints against Recomp, for businesses to know that they have to implement best available control technology at the startup phase to avoid complaints down the road. Putting the condition in the conditional use permit process is the way to get it going from the beginning. Nelson asked how to identify the best available control technology. Caskey- Schreiber stated they have to look at the industry standards. There is a mushroom composting facility elsewhere that has employed the best technology. The residents don't even know it's going on. McShane stated it is a term that is used frequently. It is a requirement to use the best technology over time, with the recognition that technologies change over time. Nelson asked how to review that if someone came in for a permit. Roland Middleton, Land Use Division Manager, stated that for stormwater standards, the best available control technologies are specified. There are State laws that talk about best available control technologies. The concern is that they scope this with the issue they have at hand. He has been to that mushroom farming facility that does not emit an odor. However, with an auto repair business for example, he would have to know what technology the business has to achieve. Caskey- Schreiber stated that is why she included the clause that, if it would not impact the neighboring area, then best available control technology isn't needed. Middleton stated he gets a lot of complaints about people working on their cars. Sometimes it becomes a business and those people are required to get a conditional use permit. Car repair is one industry that impacts the neighborhood. He's not sure to what standard he would hold the business owner to, in terms of odor and noise emissions. They need to be more specific for him to be able to enforce it. Several industries do not have a standard. Fleetwood asked what level of odor or noise disturbance triggers the requirement. Caskey- Schreiber stated one measure is if it adversely affects the property value. Roy asked if the phrase "best available" addresses the scenario of a mechanic working in a garage. If there is no technology available, that would be the answer. Middleton stated it doesn't meet the intent of what they want to add Planning and Development Committee, 4/9/2002, 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 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. as criteria. Few industries have established standards. Composting does have a standard. In addition, the language gives a sense of false hope to residents who ask why those standards haven't been applied. Give the Planning Commissioners some direction if this goes to them. Nelson asked how this differs from number six in the ordinance. Caskey- Schreiber stated it lowers the threshold slightly. It encourages the businesses to use the best available control technology. Middleton stated Recomp was outright permitted by the City of Ferndale. Its environmental impact statement (EIS) was about four pages long. That is one of the problems with them. Through the process, he will look at projects, such as composting. These will be the specific criteria that carry the most weight, especially during the SEPA review and public comment processes. Then the Hearing Examiner will make a finding that the people have taken care of all of those issues, including fumes, odor, and noise. The burden of proof is up to the applicant to show that they to meet the criteria. The SEPA process will determine if there is a likelihood of significant impacts. Fleetwood asked what triggers the requirement. Caskey- Schreiber stated Recomp is an example. There is a ring of neighbors who have been fighting this operation. They can't sell their properties right now because the odor is so bad. The County and the City of Ferndale are trying to shut them down, because of the problem. That is what she is hoping this ninth criterion would address. By using the best available control technology, they can mitigate that kind of disturbance from happening from the beginning. Fleetwood asked how they qualify the problem at Recomp into criteria. Middleton stated he would first ask that the Council tell him what it means. If it can't, he would have to make a decision. He has to make a decision based on what the code says. He would do research on the best available control technology and then require that of the person asking for the permit. If there were no best available control technology, he would look at what a reasonable person would consider as an impact. Someone who lives in the middle of an agricultural zone is a different situation than an industry moving into a rural zone and impacting the entire region. Fleetwood asked how they would get a sample of what an odor would be in connection with an industry that is not yet built. Middleton stated they don't. If the industry can't show a similar technology or use in some other area, then he would have to go to the people of the industry to make a determination. There is usually a third party review through the SEPA process, or he asks the applicant to provide him with information that proves the industry won't have an impact. Planning and Development Committee, 4/9/2002, 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. Roy stated she liked the concept. Noise is also a huge concern in the community. It would be reassuring to know that the best available technology will be used. Nelson asked if the conditional use process applies to permitted uses in a particular zone. Middleton stated permitted uses don't go to the Hearing Examiner unless it is a major project, for which it comes to the Council. Small industrial businesses do not go through a conditional use process for permitted uses. McShane stated it might still go through a SEPA process. He asked if the SEPA process would take some of these things into account anyway. Middleton stated it would. Fleetwood stated it wouldn't necessarily require mitigation by using best available control technology. Middleton stated that is correct. The proposed criterion would better define how one is to meet criterion six. Perhaps it may be better to send the Council's intent to the Planning Commission to work on the language. The intention is to address noise and odor emissions by ensuring that the best available control technologies are implemented for the project. McShane stated they could amend criterion six. Saying that a person will use best available control technologies is strong language. It means that the County administration is stuck with it. There could be a case where the best available control technologies are not that important. Middleton stated they would let the Hearing Examiner decide that. If the language says that the applicant will use best available control technologies, it makes administration easier. They need to define what the best available control technologies are. McShane stated that if the language requires best available control technologies, the Hearing Examiner has to decide whether or not best available control technologies are being used. Middleton stated that is correct. McShane asked if there is a way to ask the Hearing Examiner to consider the use of best available control technologies instead of requiring it. Amending criterion six with the language from the proposed criterion nine may make it easier for someone to get a permit. Middleton stated he'd have to think about that. A rock crusher, for example, requires a CUP. The Hearing Examiner may say that the rock crusher needs to be located in a certain area of the pit, and the owner must build berms and baffles. The staff will measure noise levels from the property lines, which have to be under a certain decibel before allowing the permit. That is typical. In this industry, it is also probably the best available control technology. However, it's not stated anywhere that that is the best available control technology. Caskey- Schreiber moved to recommend approval to the full Council. She would like to send it to the Planning Commission to see what will come back to the Council. Planning and Development Committee, 4/9/2002, 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. Fleetwood asked what kind of burden that this will add to the Planning Department staff. Middleton stated he didn't know. The Planning Division's work program looks very busy. McShane asked if the noise and odor issues of a mushroom composting facility would be addressed through SEPA review and the conditional use criteria that exist, and if staff would not hear complaints. Middleton stated the more direction he receives from the legislative body, the better off the staff is. He holds to the code specifically, no matter what it is. He could permit a facility in a week and a half with no control technologies. The better and more specific the law is written, the more likely they will end up with a result of what they wanted in the first place. If they have a composting facility today that requires a CUP, he would require the applicants to show how they are going to take care of their odor emissions. A lot of it has to do with how the compost material is handled. They need to put the burden of proof on the applicant by asking if there will be impacts under SEPA. If it's exempt from SEPA or if the applicant has shown that it isn't likely that there will be significant impacts, it doesn't mean there aren't going to be some impacts that need to be addressed in the staff report by the Hearing Examiner. Regarding a threshold of legality versus a use's detriment to the neighborhood, being detrimental to the neighborhood is a higher standard than an actual quantified standard. However, they need both. At some point, staff measures noise as a quantity. Odor is different. It can be very subjective. At that point, he would look at the information from the Northwest Air Pollution Authority ( NWAPA). NWAPA would take the lead on telling the staff on whether or not the control technology is the best available and will handle the odor. McShane stated he would like to see what NWAPA's regulations are on mushroom composting. Middleton stated he knows from this discussion what the committee's intentions are. Generic terms are a concern for him, which is why he asked what the committee means by the term "best available control technologies." He will voice that intent to the Planning Commission. One of his major functions is to assist the public through the process. He needs to be able to tell the public what the terms mean. Caskey- Schreiber asked how this differs from SEPA. She asked how the staff will know what threshold to set through SEPA and how to correct a problem after project development, even if the project meets the threshold. Middleton stated that is a problem. With SEPA, they do the best they can up front. He takes the lead from NWAPA. If NWAPA says that a project meets the standards and it's not likely to have an impact, then County staff will proceed. County staff doesn't have the expertise. That is what NWAPA is for. Caskey- Schreiber stated they are less concerned with odorous pollutants than they are with hazardous pollutants. Middleton agreed. McShane stated he would like to see what NWAPA does on something like this, and get an answer from them. Planning and Development Committee, 4/9/2002, Page 5 1 2 3 4 5 6 7 8 9 10 it 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. Caskey- Schreiber stated she spoke with NWAPA. They can only enforce what is in place. Middleton stated that if a CUP is approved and the applicant says there will be no problem, and the County receives many complaints and verifies those complaints, then the County could take the issue to the Hearing Examiner with a request to revoke the permit. Caskey- Schreiber stated that is the process that the County is currently in. Middleton stated that is the way they have to operate. Fleetwood stated they have to abate nuisances before they become a problem. He asked if criterion six is essentially a nuisance provision. Middleton stated it is. Fleetwood asked if adding criterion nine does anything to improve upon criterion six. Middleton stated it does. The addition of best available control technologies, especially with a composting use, is very beneficial. (Clerk's Note: End of tape one, side A.) Middleton continued to state that there may be some industries that don't have control technology. Regarding criteria six and nine, he wouldn't recommend one over the other. He wouldn't recommend taking one out. They could modify criterion six to include the language from criterion nine. McShane stated they could use criterion nine, and create a list of types of industries to which criterion nine would apply. Middleton stated they could do that, or they could define the types of industries. He could work with the Planning Commission on that. Both criteria need to be there. Give an applicant a minimum standard to which he or she needs to achieve. Caskey- Schreiber restated her motion to recommend approval to the full Council. She moved to amend the motion, "The Best Available Control Technology, according to industry standards, will be utilized...." The Planning Commission can define the types of industries to which this would be applicable. Fleetwood stated there are cases where best available control technology isn't necessary. Under this criterion, it would be required. He offered a friendly amendment that it be applicable where necessary. Middleton stated hopefully that would be taken care of through best available control technology. If there is a noisy manufacturing machine, it is sometimes required to be in a building. If it were outside, the entire neighborhood would hear it. He would have to look at how a level of appropriateness is defined. That would be part of the list that the Planning Commission can create. McShane stated a direction for the Planning Commission would be to look at the types of industries that this would apply to. He supported sending the Planning and Development Committee, 4/9/2002, Page 6 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. resolution to the Planning Commission, with the Planning Commission considering the types of industry this would apply to. Caskey- Schreiber agreed with sending it to the Planning Commission to determine the types of industry to which this would apply. Middleton stated the Hearing Examiner is given criteria to determine whether something fits in a neighborhood. Staff is trying to implement what the Council wants. Be as specific as possible so staff can do the best job possible. Caskey- Schreiber stated she could work with Mr. Middleton on this, and discuss it again in two weeks. She withdrew her motion and said she would redraft the language in cooperation with Mr. Middleton. 2. REQUEST TO AMEND WHATCOM COUNTY CODE, TITLE 20, TO EXEMPT PARCELS WITHIN THE DRAYTON HARBOR STORMWATER SPECIAL DISTRICT FROM ON -SITE STORMWATER DETENTION AND INFILTRATION REQUIREMENTS (AB2002 -174) Amy Pederson, Planner I, stated this proposal originated in December 2000, when reviewing the proposed impervious surface thresholds that were to be added to the stormwater special district. At that time, the Engineering Division requested from the Planning and Development Committee that the rural, one unit per five acres (R5A), rural, one unit per ten acres (R10A), and the agricultural zones be exempt from the stormwater special district requirements in the Drayton Harbor watershed. The Planning and Development Committee came up with alternative language that exempted, all parcels in the R5A, R10A, and agricultural zones that are not already platted into lots less than one acre in size. That language left out anything between five and one acre. Because this change requires a public hearing, they decided to go forward with the impervious surface thresholds and to wait until the new year to initiate this particular change. The County Water Team suggested an alternative recommendation that also went to the Planning Commission, which held a public hearing in January. The Planning Commission recommended denial because the Engineering Division was supposed to work with the Technical Advisory Committee to develop stormwater standards for single - family residences for onsite stormwater detention and infiltration treatment systems. At that time, the TAC was working on them and said they would be done in five months. The Planning Commission wanted to wait and see the stormwater standards. The draft standards will come forward at next water resources work session. Staff recommends holding this discussion until they see those standards. Fleetwood asked if this would exempt properties that have up to five acres and that are undeveloped. He also asked if these requirements would be triggered when those owners apply to convert those properties to some use. Pederson stated it applies to remodels also. It applies to anything between one acre and five acres Planning and Development Committee, 4/9/2002, Page 7 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 as it is being proposed currently. The original Planning and Development 2 Committee recommendation was to exempt anything between one acre and five 3 acres. The smaller lots would still be subject to the stormwater requirements. 4 5 McShane stated the proposed amendments went to the Planning 6 Commission, which voted against the amendments. The recommendation from the 7 Planning Commission is to not do this. If the Council chooses to vote on it, it can 8 vote to uphold the Planning Commission, and then it won't happen, or the Council 9 would have to schedule a public hearing to overturn the Planning Commission. 10 11 Geoff Menzies, Shellfish Protection District Chair, stated anytime they can get 12 a special designation in Drayton Harbor, they try to hold onto it. The proposal is to 13 exempt Drayton Harbor from the detention and infiltration requirements that come 14 with a special stormwater district. That is a concern of the advisory committee. 15 The only methods for controlling fecal coliform are through detention and 16 infiltration. A bioswale doesn't work for fecal coliform control. It doesn't do 17 anything. When the Water Team met, the Shellfish Protection District was not 18 included in the discussion. If they can hold onto the designation, they would like to 19 do that. The issue is not having any guidelines in place. He understands that. This 20 area is zoned urban residential, four units per acre (UR -4) pending the availability 21 of sewer. They are talking about an area that can go from an agricultural use to a 22 higher density. Leave what's there on the books, and get some policies in place. 23 With the knowledge that policies and guidelines will be in place in a few months, 24 leave it there, revisit those, and make sure they apply and make sense for the 25 Drayton Harbor watershed. One recommendation was added to the findings. Land 26 conversion is a significant source of pollution in Drayton Harbor. Therefore, the 27 recommendation was to add language, 'Adopt development standards which will 28 require erosion control and stormwater detention /control /treatment on all sites, 29 including single family residences." 30 31 Fleetwood asked if the stormwater special district area is contiguous to the 32 Drayton Harbor watershed. Pederson stated it is. She submitted a map of the 33 area. Parcels exceeding five acres are not subject to the district. 34 35 Caskey- Schreiber asked if they are going to have the guidelines in a month. 36 Pederson stated the draft will come forward at the next water resources work 37 session. 38 39 Caskey- Schreiber asked the implications of waiting until they are done. 40 Pederson stated they originally wanted to determine whether detention and 41 infiltration is really needed in those particular areas. There are different 42 characteristics between Lake Whatcom and Lake Samish. They looked at the 43 guidelines developed to determine if they are appropriate for Drayton Harbor. At 44 the time, they weren't looking at Drayton Harbor, but at areas like Lake Samish and 45 Lake Whatcom. 46 Planning and Development Committee, 4/9/2002, Page 8 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. McShane stated he would like to hold this in committee so they can get the standards and discuss all the stormwater districts. Pederson stated they have to consider Lake Whatcom, Drayton Harbor, and Lake Samish. Lake Samish is not a stormwater special district right now, but there is a contingency in the code that says Lake Samish will become a stormwater special district as soon as the standards are updated and revised. The options for action now are to hold it in committee, or recommend the Planning Commission recommendation and do the Drayton Harbor analysis later. McShane stated there are some issues he wants to address, such as the issue with driveways and the overlay districts. Pederson stated the stormwater special district, the water resource protection overlay district, and water resource special management area need to get sorted out through the moratorium process that is in place. McShane stated they can talk about low impact development, and how to avoid the need to do any stormwater work. Pederson stated some of those basic concepts are worked into the stormwater standards. McShane stated he would like to see those concepts in the standards. He preferred to hold this discussion in committee to see what the standards are, how they are going to apply, and make sure that they maintain efforts to recover Drayton Harbor. Menzies asked if the draft standards are being crafted specifically for Lake Whatcom, or if they would be the basis for Drayton Harbor and Lake Samish. Pederson stated the standards are based largely on the new State Department of Ecology (DOE) stormwater manual and the King County stormwater manual. Staff asked that the standards be somewhat general so people can apply them to their sites. A complicated site will require engineering and special onsite detention and treatment. McShane stated he recalled that a single - family home being built could be required to have an engineer- designed stormwater infiltration or detention system. They didn't have at that time a list of things an owner could do without having to hire an engineer. Menzies stated he believed that someone in the Drayton Harbor watershed asking for a permit would be given a set of general guidelines so he or she would know what they need to do to be in compliance with the stormwater special district. Pederson stated staff is giving people some of the specifications out of the draft standards. There are model best management practices (BMP's) that people can use, but haven't necessarily been reviewed for a particular area. Caskey- Schreiber asked if they could create low- impact development guidelines, and ask the developers to adhere to them. Planning and Development Committee, 4/9/2002, Page 9 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. Hal Hart, Planning and Development Services Director, stated the system they might be using so they don't necessarily have to have an engineer every time would be a suite of different design possibilities that could be applied, without hiring an engineer. He is discussing this topic with staff at DOE. Keep the costs down, but keep environmental protection going. It's going to take a site -by -site analysis because there are so many variables across the landscape. McShane stated he would like to keep this in committee. Roland Middleton, Land Use Division Manager, stated the question was what they are doing now. They are doing the best they can. They put as much information as possible out there. He uses some handouts for certain things. However, developers would be sent back and forth between his department and the Engineering Division. The issue really is site specific, but they can't do that for 600 to 700 building permits. Menzies noted that the Whatcom County Parks Department brochure advertises clam digging as something to do at Semiahmoo Park. However, that is not allowed because the State Department of Health recommends that there not be any shellfish harvesting. OTHER BUSINESS Hal Hart, Planning and Development Services Director, stated he wants to do four 30- minute discussion sessions this spring to provide information on various Planning Department tasks and responsibilities. He wants the sessions to be about the Critical Areas Ordinance (CAO), the State Environmental Protection Act (SEPA), zoning, and shorelines. (Clerk's Note: End of tape one, side B.) The committee concurred. McShane stated he would also like to hear about the appeal process. Caskey- Schreiber stated she wanted information on Open Space. Hart stated a question was asked earlier today about commercial permits. The reason the number of commercial permits is up is because of the refinery. When the refinery does upgrades, it has a big impact on the amount of commercial permitting. Also, last year, the primary reason the numbers of permits in the commercial category was up was because people were making changes to their commercial signs. There was not a lot of other commercial activity last year. ADJOURN The meeting adjourned at 4:40 p.m. Planning and Development Committee, 4/9/2002, Page 10 1 2 3 4 5 6 7 8 9 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. Jill Nixon, Minutes Transcription ATTEST: Dana Brown - Davis, Council Clerk WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Dan McShane, Committee Chair Planning and Development Committee, 4/9/2002, Page 11