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HomeMy WebLinkAboutPlanning March 26 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 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. WHATCOM COUNTY COUNCIL Planning and Development Committee March 26, 2002 The meeting was called to order at 1:30 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: Sharon Roy COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL 1. RESOLUTION APPROVING AN OPEN SPACE /OPEN SPACE APPLICATION FOR VICTORIA LUHRS (AB2002 -150) Elizabeth Olsen, Planner II, stated this has been discussed in committee before. The portion of Victoria Luhrs' property in question is on the east side of the road, with a home and a steep and unstable bank. Tidelands go to the extreme low tide mark. That portion would be put into an open space /open space tax designation. The rating is 86.39 to the top of the bank. In the shoreline management program, the conservancy and natural shoreline designation also covers this piece of land. It fulfills the designation requirement with a public benefit rating (PBR) of at least 45. The area of the property from the top of the bank to the road fulfills the open space /open space designation with a minimum PBR score of 45. Crawford asked if it is typical that a home be included in an open space /open space designation. Olsen stated the area from the top of the bank to the water, area B, is definitely scored at 86.39. The conservancy designation of the shoreline includes the property up to the road. It doesn't mention whether or not there should be any residences or other types of buildings. This is a beautiful piece of property for open space. It is an exceptional area for small boats that want to land there. Caskey- Schreiber asked if the beach could be accessed via the road. Olsen stated the bank is extremely unstable. There is public access from the seaward side. Fleetwood asked what the changed condition is since the last time they talked about this. Planning and Development Committee, 3/26/2002, Page 1 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 2 Dave Grant, Senior Civil Deputy Prosecutor, stated the Council wasn't 3 convinced that it had sufficient information on the application to rule on it 4 previously. The assessor had some concerns. There are a number of issues. First 5 of all, there is no issue with the lower beach area. The upper beach area is the 6 point of contention. Treating this type of area as an open space for taxation 7 purposes is not the norm. The applicant is attempting to convince the Council that 8 her area is open space because the shoreline program states that shoreline areas 9 will quality for State statute open space. The applicant says it fulfills the 10 requirements, and her application has to be granted. Her application presents 11 three legal questions. First is in respect to the County's discretion. The Council has 12 the discretion to deny or grant the application in part. The County Shoreline 13 Program isn't going to control the State Open Space Act. Once a piece of land 14 qualifies, then it is the Council's decision to either grant or deny the application, in 15 whole or in part. The risk in denying the application in part is that the applicant can 16 withdraw the application, and the county will lose the public benefit. 17 18 The second legal question is how they rated the upper beach area. The rate 19 is "45 plus." The problem is with the "plus" after the rating amount. The assessor 20 uses the number to determine how much to reduce the taxes on this property. If 21 granted, the application should be given a rating of 45, without the plus. 22 23 Inclusion of the upper beach presents a third legal question. The problem as 24 he believes it is that designating the upper beach would violate the Open Space Tax 25 Act. They must read all the components of the act together for context. Under 26 this statutory scheme, the Open Space Act, the only time to provide this exemption 27 in regard to land being used as a residential area is in conjunction with certain 28 farming activities. Typically throughout the state, the assessor extracts an acre for 29 the home site for privacy purposes on bigger parcels. The rule in this Open Space 30 Tax Act is that home sites don't qualify as open space. It is a private space, not an 31 open space. They must think of the property's current space. It must be open, 32 agriculture, or timber. It's difficult to show that a residential use is an open use. 33 34 Caskey- Schreiber asked if this would set a precedent for other shoreline 35 properties. Grant state it would. 36 37 Grant stated the question is whether it's fair to put the burden of Ms. Luhrs' 38 taxes onto her neighbors. If that happens, he asked what would prevent her 39 neighbors from doing the same thing. The tax burden would shift inland. That's 40 one of the reasons why it's important that the State Open Space Act has granted 41 authority locally to approve or deny applications in part. 42 43 Granting the upper beach would violate the Act. The Board of Tax Appeals 44 has taken official notice of the fact that assessors remove home sites from areas 45 designated as open space. Also, there is no physical access to the upper beach. 46 This is a policy issue that can spill over onto other properties. 47 Planning and Development Committee, 3/26/2002, 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 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 if the Open Space /Open Space application just doesn't meet the criteria. Grant stated that for the upper beach, area A, it may not meet the criteria. The legislative purpose of the State Open Space Act focuses on maintaining current uses that will continue to provide adequate open space for the production of food, timber, and fiber. Her residence will not be open to public access, and the home site will not be used to provide food, timber, and fiber for the economic welfare of the state. This designation should be used to assure citizens that the use and enjoyment of the natural resource and scenic beauty are preserved. One has to ask oneself how maintaining this land use and whether a single - family residence fulfills these objectives. That is the legislative intent. When they look at the act as a whole, the only instance in which a home site is granted an exemption is as an exception to the farm. The rule is to exempt the home site from the tax exemption. In favor of the application, subsection two is the enumerated factors the Council is supposed to review to determine whether or not it will grant the application. The number one criterion is the resulting loss in revenue or tax shift. The precedent they set might be dangerous, given the amount of conservancy shoreline in the county. The only criterion that applies is to preserve visual quality along a highway, road, or scenic vista. If that is a factor, than the question becomes whether or not the applicant's residence constitutes a scenic vista for the purposes of this act. If the house is a scenic vista, then they have to ask how perpetuating this use, the single - family residence, promotes or preserves the visual quality. The definitions of open space are found in the first section of the Revised Code of Washington (RCW) 84.34.020. Fleetwood asked how the staff reconciles a question of fact. Olsen stated the problem is that the Shoreline Management Program isn't detailed enough. Also, the land is a fraction over an acre. The Assessor's Office figures that they will take out one acre for the residence, leaving a fraction of it in open space /open space. However, this is a beautiful piece of land. McShane asked if the Assessor's Office has to take out one acre. Olsen stated they take out a nominal one -acre. The taxes are very low on the 1.34 acres in the lower beach because it is in conversancy designation. People would have access to the beach area at any time. Caskey- Schreiber asked if Ms. Olsen would be comfortable with this in other areas in the future. Olsen stated the Assessor wouldn't go forward. Grant stated they have to ask if a single family dwelling, where people can't go, fits the legislative purpose of this Open Space Act. That is the ultimate question. The Council can grant the application in whole, and the assessor could take out what he considers the area for the home site. Keith Willnauer, County Assessor, stated the number one concern is the amount of tax benefit versus what the public gets in return. Wherever they seek to Planning and Development Committee, 3/26/2002, 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. reduce someone's taxes, those taxes are shifted onto other individuals. An issue is the tax benefit that makes it worthwhile for Mrs. Luhrs to do this versus the value the County receives for recreational benefit. A valid concern is the number of home sites in the county within 200 feet of conservancy shorelines, and whether or not this designation would be allowed for all of them. Waterfront homes tend to be very valuable. It could be a very substantial tax reduction for the Luhrs. If the Council excluded the upper beach area, it would settle the issue. That is his recommendation. He's troubled by the fact that they've uniformly applied the nominal one -acre exemption from the open space designation for home sites. However, he would have the flexibility to take a look at it. He also has an obligation to support the intention of the statute. He might look at something less than one acre to make it more reasonable. (Clerk's Note: End of tape one, side A.) Willnauer continued to state that he is not convinced that any single - family residential use is consistent within the Open Space Act definition. That is what directs him. McShane asked how the score is calculated for the tax. Willnauer stated it is complicated. The higher the public benefit rating, the more substantial the tax break. He values a property as a whole, and not its parts. Waterfront is a major contributor to the overall value of a property. McShane asked if the assessor takes a shoreline designation into account when valuing a property. Willnauer stated he does. The market value is driven by a residential use on a waterfront property. If there are restrictions on a problem that keep certain things from occurring and that one may have intended to do, that adjustment would have been made in the market value conclusions before buying the property. The market value would direct the kinds of distinctions the buyers are using when faced with those designations. He finds that those distinctions aren't that clear, although he is aware of them. Fleetwood asked Mr. Willnauer to make a recommendation. Willnauer stated he recommends that the Council approve a tax reduction for the lower beach and the bluff area. He could take out less than an acre, the amount of property actually being used by the home site. Caskey- Schreiber states she envisions everyone with a home on Lake Whatcom asking for an Open Space tax designation. She asked where it ends. Willnauer stated that is a good question. The question is whether a homeowner is guaranteed an exemption based on the simple definition, or whether or not the Council is able to deny an application based on the quality of the application. Vicki Luhrs, 1642 Seacrest Drive, Lummi Island, stated this law has been in the Shoreline Management Plan since 1976. This is the first time it has been brought forward to the County Council. Mr. Grant and Mr. Willnauer are Planning and Development Committee, 3/26/2002, 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 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. disregarding what the law says. Karen Frakes upheld Whatcom County Code (WCC) 23.50.82, which says it fulfills the definition in the Open Space Act. The law doesn't exclude small properties or properties that have a home site. This law was enacted because the shoreline area, which is designated conservancy, has hazardous natural conditions that require more than normal restrictions on the development and use of the property. That is why there is a provision for an open space designation for conservancy or natural areas. There are restrictions on those areas. That shoreline area goes 200 feet back from the ordinary high water mark. The home sites have extra restrictions. She's lost property due to winds and tides. Due to restrictions on her property, she can't build to protect her property. This law was meant to be a legal method to compensate for those restrictions. There is no law that says they have to take out one acre for a home site. That is just what they've done, and it has something to do with the exemption given to elderly people. That was the precedent that was used, but there is no law for it. In King County, they take out the footprint because it is in King County's provisions. Dick Luhrs, Lummi Island, stated that because there is a restriction on the property, tax relief should be granted. Victoria Luhrs stated Ms. Frakes stated that they don't have to have physical access, and that visual access meets the same access requirement in areas that have an eroding bank. Dick Luhrs stated that the law doesn't say that the County has discretion on conservancy areas. Victoria Luhrs stated the law says someone with a parcel that is one -acre or less, with a home site, should be in open space. According to the assessor, such a parcel wouldn't be in open space. That seems to disregard the intent of the law to give compensation for restrictions on property, as it was set forth in 1976. McShane asked the size of the property. Victoria Luhrs stated a there is a 3,000 square foot home on two stories. There is one precedent in the Assessor's Office in which a waterfront property with a small cabin was granted open space, and the cabin wasn't removed. Dick Luhrs stated that property wasn't in a conservancy designation. In addition, the Council is supposed to act within six months of the application. It's gone beyond that. They applied in December 2000. If it is approved, the tax benefit won't be applied to this year's tax bill. Willnauer stated the statutes and the Washington Administrative Code speak to what occurs once the decision is made. Planning and Development Committee, 3/26/2002, Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. McShane stated the Planning staff is understaffed, and they are having difficulty doing the work. Roy asked if the Ms. Luhrs believes that because the land is in conservancy, it automatically qualifies for the tax designation. Victoria Luhrs stated that is what the Shoreline Management Plan says. Fleetwood asked if the tax benefit the Luhrs would receive would not begin until next January. Willnauer stated that is correct. Fleetwood stated it might make sense to table this issue one more time, during which time he would commit to establishing the answers needed to address this question. There are a couple of positions in direct opposition to each other. The applicant claims the law is emphatic in its entitlement. Another position is that the Council has discretion to deny in whole or in part. By reading the law, he can probably establish a resolution in the next two weeks. He would feel more comfortable if they held this in committee for two weeks. He moved to hold in committee for two weeks. Motion failed 1 -2 with Fleetwood in favor. Caskey- Schreiber stated she didn't want to hold in committee because they need to make a decision on this. She's inclined to respect the County's legal opinion. She moved to approve area B for open space /open space tax designation in the total amount of 1.5 acres, but not include all of area A. It would damage the County to classify waterfront homes as open space /open space. She is concerned about the precedent they would set, with all the waterfront property in this county. McShane stated he does a lot of shoreline work. It was a horrible mistake for the State to grant private ownership to the tidelands. Allowing someone to pull out and have access to the beach is positive for boaters. He doesn't want to discourage that ability. The issue of the tax burden is also a concern. He would want to approve an area larger than 1.5 acres. There are 1.34 acres that include the tidelands and the ordinary high water mark to the top of the bank. That land is clearly open space and also addresses the conservancy designation that restricts what the Luhrs can do with their property. It's extremely difficult for them to do any shoreline armoring. He suggested that they include half of the area A, which is .36 acres. The total designation would be 1.70 acres. Caskey- Schreiber accepted 1.7 acres designated as open space /open space as a friendly amendment. space. McShane stated that leaves .36 acres for the home site. McShane restated the motion to designate 1.7 acres as open space /open Planning and Development Committee, 3/26/2002, 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 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. Motion carried unanimously. OTHER BUSINESS There was no other business. ADJOURN The meeting adjourned at 3:05 p.m. Jill Nixon, Minutes Transcription ATTEST: Dana Brown - Davis, Council Clerk WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Dan McShane, Committee Chair Planning and Development Committee, 3/26/2002, Page 7