HomeMy WebLinkAboutPlanning November 26 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
Planning and Development Committee
November 26, 2002
The meeting was called to order at 3:00 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
Barbara Brenner
Sharon Roy
Sam Crawford
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. PLANNED UNIT DEVELOPMENT (PUD) EXTENSION REQUEST FILED BY
AYERS CONSULTING, LLC ON BEHALF OF ANGUS AND PAULA
MCEACHEN FOR GENEVA HILLS (PUD1997- 00001) (AB2002 -376)
Crawford stated he would recuse himself from the discussion. His employer
is one of the representatives of the applicant.
McShane stated the County Council could grant an extension if circumstances
beyond the applicant's control or financial hardships prevented the planned unit
development (PUD) from making progress.
Bob Carmichael, 1700 D Street, stated he represents Mr. McEachen. Mr.
McEachen obtained a plat from the County many years ago. However, the legal
processes have taken on lives of their own. He was caught in the Growth
Management Act litigation, which clouded the vesting. Ultimately, that litigation
has been resolved and the project can go forward, but other litigation has been
ongoing. One was an appeal of the plat. Another was an appeal of the stormwater
discharge permit. Both were resolved favorably for Mr. McEachen. This is a classic
case of why the County Council has the ability to extend plats. There were a
number of circumstances beyond the owners' control.
McShane stated the application for the PUD went in during October 1997. At
the end of 1997, the County passed the critical areas ordinance (CAO). He asked
how the PUD matches the setback and wetland issues from the current CAO.
Planning and Development Committee, 11/26/2002, 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.
Bruce Ayers, Ayers Consulting, stated he did a mitigated PUD that applied all
the rules, and even went further. They installed stormwater plantings using a
buffer area. Steve Hood, Department of Ecology (DOE), did the preliminary
stormwater plan. The site was challenging because they had to deal with
topography. Care was taken regarding the designs.
Caskey- Schreiber asked if the design meets today's standards for critical
areas. Ayers stated he believed so. If not, they still need to meet current
regulations. One of the tasks, if the PUD were extended, would be to have the
plans reviewed and updated.
Roland Middleton, Land Use Division Manager, stated the PUD meets the
critical areas determination in July 1997. Upon cursory review, the PUD would
meet current critical areas ordinance standards for mitigation.
Caskey- Schreiber asked if the McEachens intend to develop themselves or
sell the property. Ayers stated the owners originally planned to develop the
property themselves. They could not because none of the financial institutions
would loan money for the project when the challenges to the County arose. The
owners tried to find a developer who would buy and develop the project. Again,
most developers would not get involved as soon as they found out there were a
multitude of petitions against the County and DOE. This project was not the issue
of litigation. This project was the result of challenging the County's urban growth
area. There is a pending offer for a partnership if the Council approves this today.
Fleetwood asked the additional costs and burdens if denied. Ayers stated
they spent $150,000 for permitting in 1996 and 1997. The zoning in the area is
pending. They may or may not be able to continue the project in the future. He
believes they've met the requirement of the statutes for an extension. He would
guard against reviewing a project at this time on its merits, because it has already
been reviewed for that. The question before the Council is whether the project met
the criteria under the Whatcom County Code 21.05.030(5). Delays have to be
caused by technical and /or financial problems and be outside of the project's
control. That is true in this case.
Brenner stated that when someone gets approval, and it goes into litigation
through no fault of their own, there should be an automatic stop of the timeframe.
It's not fair they even have to go through this. She asked if that is something the
Council could change in the code. Middleton stated they could. He tried to approve
the extension administratively, but legal counsel advised against it.
Brenner asked if that would be a better idea. Middleton stated all extension
requests have been approved and moved forward. He doesn't know the benefit of
additional review, but there may be certain circumstances that warrant it.
McShane stated it is positive to make sure the plats are moving forward.
Planning and Development Committee, 11/26/2002, 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.
Ayers stated they have prepped the site, hydroseeded it, installed temporary
erosion and sedimentary controls, and monitored it for two years to make sure the
temporaries were working and in place. The DOE approved it. The DOE has no
problems with the site. The development has been on hold for three years. If they
could have moved ahead, they would have.
Fleetwood stated the language in the code doesn't make extensions
mandatory. He asked why the Council would not grant an extension if the criteria
were met. Carmichael stated the only answer is because that was the amount of
discretion the Council chose to allow itself. The Council didn't want to box itself in.
In practice, the extensions have always been allowed.
Middleton stated a couple of projects died at the staff level rather than come
to the Council to not be approved. They weren't as clear -cut as this case. It is
unusual to have discretionary approval authority if there are established criteria.
He can think of a couple of projects that have been able to argue that they
technically met the criteria, but there was no real evidence of them moving
forward. That is not the case with this project.
McShane moved to recommend approval without amendments to the full
Council.
Caskey - Schreiber proposed a friendly amendment to see that the Public
Utility District (PUD) adhere to all current development standards and new
development standards. This may be one of those places where phased clearing
kicks in.
McShane stated he did not accept the friendly amendment.
Motion carried unanimously.
2. APPLICATION TO REZONE APPROXIMATELY 12.3 ACRES FROM RURAL
ONE DWELLING /TEN ACRES (R10A) TO RURAL ONE DWELLING /FIVE
ACRES (R5A) AT 8443 KICKERVILLE ROAD (A62002 -392)
Matt Aamot, Senior Planner, stated there are critical areas and creeks near
and in the parcel. The Comprehensive Plan allows two -, five -, or ten -acre zoning in
the rural areas, but prefers ten -acre lots. About 650 acres have been rezoned from
rural, one unit per ten acres (R10A) to rural, one unit per five acres (R5A) since
1997. He is concerned that language is being undermined with many small
rezones. There must be changed conditions to approve the rezone. The application
contends that there is a lack of lots less than ten acres and greater than five acres
for medium to high density housing. In the Birch Bay and Blaine subarea, there are
6,000 acres zoned R5A that could accommodate 850 dwellings. The Birch Bay and
Blaine urban growth areas are to the west and could accommodate even more
dwellings. The staff does not believe there are changed conditions, and is
concerned about undermining the R10A policy.
Planning and Development Committee, 11/26/2002, 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.
Roy stated she talked to neighbors of this property. The neighbors urge the
Council to keep the zoning as it is.
Fleetwood moved to recommend upholding the Planning Commission
recommendation.
Motion carried unanimously.
COMMITTEE DISCUSSION ONLY
1. ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY ZONING
MAP FROM URM12, UR3, RR1, RR2, RSA, RF AND CF TO RR1, RR2,
RSA, RF, CF AND ROS TO REDUCE POTENTIAL DEVELOPMENT
DENSITY AND TO PROVIDE ADDITIONAL PROTECTION FOR THE LAKE
WHATCOM WATERSHED (AB2002 -226B)
McShane stated there is an updated interim zoning proposal map.
Sylvia Goodwin, Planning Division Manager, stated staff provided a new
interim ordinance, different from the one in the Council's packet. This interim
ordinance is a continuation of the interim ordinance the Council approved six
months ago.
The only difference is that the Geneva area and Hillsdale area will remain
zoned urban residential, three units per acre (UR -3). It had a temporary downzone
to rural, one unit per two acres (R2A). However, the Council said in the lot
consolidation ordinance that any lots consolidated at a density of R2A could go back
to UR -3 zoning. In reality, this doesn't make much difference. The entire area,
other than a few parcels, is already platted. There is a lot of uncertainty for
property owners because of the sewer. They have until December 16 to tell Water
District 10 how many sewer connections they want to purchase. As long as they
are subject to an interim downzone with uncertainty about the permanent zoning, it
makes it tough for citizens to make those decisions.
Staff recommends a density greater than R2A. They considered the rural
residential, two units per acre (RR2) zone. The problem with that zone is it allows
two units per acre on a septic tank. Staff doesn't want to encourage that kind of
high density in the watershed on septic tanks. Urban residential is the best zone if
they want to limit development to one house per five acres until there is sewer
available, which is the best protection for the watershed. The UR -3 zone is the
lowest density they have in the urban residential zones.
The rest of the zoning in this interim map is exactly the same as the earlier
interim map. The County Council should introduce this item. It is the permanent
Planning and Development Committee, 11/26/2002, 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.
zoning. Also introduce an interim ordinance to carry them over until the County
Council adopts the permanent zoning.
McShane stated the Planning Commission has not made a decision on this.
The County Council is making a full Council decision before the previous interim
ordinance expires. Also, there was motivation to let people know, especially in the
Geneva area, where the County is going with the zoning. Staff looked at this a little
more carefully. There is a good argument that the UR -3 zoning in the Geneva area
is the way to go for now. They do want to have a decision on the interim zoning at
the next Council meeting to carry the County through until the Planning
Commission makes a final decision.
Goodwin stated Introduction Item five on the County Council's agenda for
tonight is the permanent zoning for the Lake Whatcom watershed. If they want to
wait until the Planning Commission makes a recommendation, the Council could
introduce that. Introduce the interim and wait before they introduce the final
ordinance.
Roy asked if they could compare them better if they introduce the same
piece of work that the Planning Commission is currently studying. Goodwin stated
staff recommends introducing the exact same interim ordinance as they approved
last time, with the exception of the change to Geneva. Another way to go would be
to introduce the version that included the map staff recommended to the Planning
Commission. There are differences between them.
McShane stated the interim zoning is just a placeholder. The original interim
zoning had a proposed zoning of R2A. He never intended for that to be the final
zoning in those areas. It was just to give them time to think about what to do
there. The Council should look at what staff brings forward to the Planning
Commission, and then how the Planning Commission takes in the public input.
2. 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)
Amy Pederson, Planner I, handed out a memo that summarizes the extent of
the amendments that Planning Commission has recommended, and compared them
to the original interim zoning that Council adopted (on file). The Planning
Commission held a public hearing and work sessions, where they made
amendments. She read through the ten amendments in the memo.
Planning and Development Committee, 11/26/2002, 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.
Caskey- Schreiber asked why it doesn't apply to Drayton Harbor. Pederson
stated the water resource protection overlay district only applies to Lake Samish
and Lake Whatcom. Drayton Harbor is included for stormwater and clearing.
Nelson asked if the mineral resource land (MRL) remains at the south end of
Lake Whatcom.
McShane stated it is not an MRL.
Pederson stated the only MRL in the Lake Whatcom watershed is in the
northeastern portion of the watershed.
McShane stated a location at the south end was debated heavily. The one to
the north would be an existing nonconforming use.
(Clerk's Note: End of tape one, size A.)
Nelson stated that if it was not an identified mineral resource land (MRL), it
would be prohibited.
McShane stated a new permit would be prohibited.
Pederson stated a designated MRL would be exempt.
Brenner asked if this was changed. She asked if Whatcom County has the
authority on Department of Natural Resources (DNR) land to say the DNR can't
build roads to do forestry.
McShane stated he thinks Councilmember Brenner is correct. The County
wouldn't be able to prohibit it. He guessed that the Planning Commission raised the
question.
Nelson stated it would apply more to the private landowners, who get
permits from DNR.
McShane stated as long as it is done according to forest practice regulations,
one is allowed to do mining.
Caskey- Schreiber asked if someone would be allowed to rebuild a house that
has burned down to be a conforming use or to its preexisting condition. Pederson
stated in that situation, reconstruction would be allowed to its preexisting,
nonconforming status.
Myron Wlaznik, 4215 E. Oregon, Bellingham, stated he was on a committee
who reviewed the land- clearing ordinance and attended the Planning Commission
meetings. People for Lake Whatcom, which he represents, is concerned about
Planning and Development Committee, 11/26/2002, Page 6
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 whether these best management practices (BMP's) are measurable, enforceable,
2 and effective. After reviewing the measures, he concluded they are not.
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4 They object to adding golf courses into the provision. Chemicals and
5 fertilizers are applied heavily in Sudden Valley. The requirement is removed that
6 there should be 500 feet between cluster developments. That change will allow
7 back -to -back and side -to -side developments, which would turn into enclaves.
8 There was discussion that gravel is a pervious surface. The problem with gravel is
9 what is under the gravel. Over time, gravel becomes impervious. In the City of
10 Bellingham, the detention ponds are often incorporated into the trail system. In
it certain cases, they are signed. He doesn't understand the exception for runoff
12 control if it's demonstrated that there is no adverse impact to the conveyance and
13 receiving waters. The ordinance reduces the buffers from 300 square feet to 100
14 square feet. As they shrink buffers, they create long -term problems. Existing
15 runoff controls are not done right and don't work. They can't say they will do that
16 in the future. The purpose of the BMP's is to keep runoff sediment onsite, not
17 dump it in a pond. That's the failure of these regulations, which do not keep runoff
18 sediment onsite. The original ordinance required soil stabilization. Now it doesn't.
19 Regarding fines and violations, developers consider them a cost of business. People
20 need to understand they are serious. The fines should be hefty, including removal
21 of a developer's license. He was a member of the seasonal land clearing
22 committee. The only thing they agreed on was that there was a wet season. The
23 vote was split all the time between the seven developers and three
24 environmentalists. Many of the items the environmentalists considered important
25 were not included. It's not possible to contain runoff in the wintertime. Have a
26 seasonal ban. For this winter, allow some, closely monitor and regulate them, and
27 measure them to make sure they work. A point system may be used if there is
28 scientific and technical basis, but there isn't. In soil groups, even sandy soil will
29 become saturated. The point system doesn't take into consideration that it will
30 reach a saturation point. The slope scale doesn't consider the impact of increasing
31 slopes. The impacts of the clearing sizes are the same, which doesn't make any
32 sense. Slash burns in the watershed don't make sense.
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34 Caskey- Schreiber asked if the County has regulation over DNR slash burns.
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36 McShane stated the County does not regulate slash burning that is allowed in
37 forest practice guidelines. The DOE has a say in when they are allowed to burn.
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39 Wlaznik stated all the burns in the watershed come from the slash burns. It
40 is something the County needs to look at. Gravel roads should be considered an
41 impervious surface.
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43 Rich Emerson, Building Industry Association (BIA) of Whatcom County,
44 stated he is satisfied with the collaborative effort on this ordinance. They went a
45 long way in coming up with the ordinance that is before the County Council. It is a
46 workable compromise that provides reasonable solutions. There are other issues to
47 be resolved here. They did the best they could do in five weeks. During the
Planning and Development Committee, 11/26/2002, 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.
process, they learned of other studies that provide additional mitigation, which
shows mitigation can be used to eliminate the need for a total ban on clearing. The
BIA uses an expert to give classes on soil management. That expert recently
testified at the public hearing on the Lake Whatcom watershed downzone. The
expert's position is in direct conflict with Mr. Wlaznik. It is false that best
management practices don't work. This action affects a lot of people and is very
serious. There are other circumstances that are far more threatening to the quality
of Lake Whatcom than the compromise that has been recommended for approval.
It is one piece of the solution. It is a collaborative plan that allows people to work
and also find better solutions to the environmental concerns.
During the deliberation, there were numerous concerns about phosphorus
levels. His expert says there are easy ways to mitigate soluble and insoluble
phosphorus. They haven't had time to talk about it. His expert is named Phil
Fortunato, and has a company in Kent called Eco Three.
Chris Dillard, 1102 Kelly Road, Bellingham, stated he participated in the
seasonal land clearing debate. This compromise equates to no ban at all. Not a
single property will have a seasonal ban. Over the course of those meetings, the
BIA blocked every single recommendation he made. The reworked seasonal land
clearing is not a compromise. The review of the literature provided by County staff
was not clear showing that BMP's are ineffective and the threats are significant.
They began to make a good faith effort to compromise, but it didn't work.
A cash bond should be required of a developer to provide a pool of money to
pay for improvements if a BMP fails. There should be a mechanism for citizen
appeal. There should be runoff testing to see if the BMP's are successful. They
should include specific phosphorous limits. There should be a citizen hotline to call
if BMP's blow out. There should be a mechanism for the County to do the work if
there is a failure. There is an issue about getting access to the developer's land.
There should be a stringent inspection regimen in the wet season, such as daily.
Most importantly, the developers should pay the cost of all this. There should be a
fee structure associated with the permitting process that covers the cost associated
with increased enforcement and processes necessary to keep the lake safe during
the winter season. Hardscaping was turned into an exemption, which was
ridiculous. If they go with the point system, there should be cut off points such as
15 percent for slopes, above which no seasonal land clearing would be allowed.
McShane asked if the scoring table could be reworked, or if there should be
no exceptions above a certain thresholds. Dillard stated it comes down to the
threat to the lake and the assuredness of enforcement and that the measures will
be there during critical times. There are points when they should just ban the
activity. It has been said that at 15 percent slope, the BMP's become much more
difficult to control the runoff. Whether they can come up with criteria to get around
it, it comes down to the cost associated with implementing such a program and the
assuredness that it will control the threat.
Planning and Development Committee, 11/26/2002, 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.
Rick DuBrow, 2523 Utter Street, Bellingham, stated he also attended the
committee that worked on this compromise. He is a builder and he also president
of the Board of Resources, which is an environmental education organization. The
committee hoped to find a way to keep building. He didn't want a seasonal land -
clearing ban. He does not agree that they didn't compromise. The compromise is
one to keep people working, not to keep the lake clean or hold it at its current
health.
(Clerk's Note: End of tape one, side 8.)
DuBrow continued to state that in the construction industry, it is very difficult
to keep silt fences and erosion controls in place. Assuming they could keep them in
place, they still cannot stop the phosphorous. Water that appears clear is typically
well over the standard for phosphorous containment, which degrades the lake. For
those reasons, he couldn't support the compromise. This is something that allows
people to keep working. What is more important is the health of the lake.
Tom Pratum, North Cascades Audubon Society, stated he agrees with the
previous speakers who testified against the ordinance. He submitted information
regarding the development standards and downzone. He is concerned about the
way the downzone has been altered in relation to the development standards. Most
of the development that will occur in the watershed, according to the County staff
report, is going to occur in these areas that have now been zoned UR -3 in the
interim zoning. There are 8,377 lots in the UR -3 zones right now. Even if the
downzone is approved, there will still be 7,578 lots. About 75 percent of the
development in the watershed is in the UR -3 zone. In the interim downzone, those
areas are zoned R2A. Given that zoning, the development standards would have
been allowed ten percent impervious surface coverage. In the UR -3 zone, a lot is
allowed 40 or 50 percent of impervious surfaces. That needs to be changed. If
they are going to let people build all those houses in the UR -3 zones, they need to
tighten up the development standards for the UR -3 zones. It would make a huge
difference. They can specify that those areas be developed to the highest
standards of watershed protection. All the development is occurring in those areas.
They have to balance the short -term gain of certain people versus the long -term
health of this community.
Roger Almskaar, Land Use Consultant, stated he also was on the committee.
He agrees with what was said about protecting Lake Whatcom. However, the
disagreements come in the kind of solutions that might be applied. There were not
seven development folks on that committee. Most people agree with doing a better
job of protecting the lake. The question is how they do that. The draft the
Planning Commission created is a big improvement over the June ordinance.
They are getting a lot of science that is politically motivated. What works on
a site depends on the conditions. Most people will not choose to spend a lot of
money on many short term fixes to mitigate a site, and will choose to wait for
spring or summer. Economics are involved here. That is one good thing about the
Planning and Development Committee, 11/26/2002, Page 9
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DISCLAIMER: This document contains the Whatcom County Council or Committee
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are not the final approved minutes.
point system. The County's land clearing and excavation control regulations do
need some more work. They are confusing. He supports the Planning Commission
draft in general. It needs more work, but not a lot. He appreciates the staff
dedication and willingness to compromise. This ordinance has two purposes: to
protect the lake and the lake's resources and to be reasonable to those people who
own land and want to build a house. There is no commercial zoning in the
watershed. They are not talking about a lot of strip malls out there, mainly about
more houses. The cluster change made by the Planning Commission is practical.
The 500 -foot rule is not very significant, but the reason for it was because some of
the sites are not very big. There may be a smaller number that would work. The
tree retention policy as it was written was extremely unworkable and legally
indefensible. The Planning Commission spent more time on that than any other
issue. The solution is a reasonable one. It may need some fine - tuning. He
supports swift and strong enforcement for seasonal land clearing. There hasn't
been enough of that. Punish the people who are doing it wrong so they get the
message and don't break the rules.
McShane stated this would be held in committee.
Pederson stated the Planning and Development Department staff are
concerned about the Planning Commission's tree retention section. Staff would
provide an alternative.
Caskey- Schreiber asked if the staff has analyzed the point system to see if it
is based on factual, scientific information that would affect BMP's. Pederson stated
there may be room for improvement.
Goodwin stated staff didn't look at the point system. It wrote the point
system with direction and amendments from the committee. The original was
based on what the Technical Advisory Committee came up with. The categories are
good, and there is basic scientific basis. There is not science for how they assign
points to steep slopes versus soils, for example. That isn't scientific. It is a value
judgment. Staff will provide more and better background information on it. No
scientist will provide a definitive number on a point system.
Brenner asked the definition of a steep slope. Goodwin stated this ordinance
used the thresholds of 15 percent and 35 percent. That is in the critical areas
ordinance.
Roy asked for information in the future on how this would fit with other
standards. Goodwin stated the DOE manual is a specific manual. If they are going
to have specific questions, she will get someone from the Engineering Division to
attend.
OTHER BUSINESS
There was no other business.
Planning and Development Committee, 11/26/2002, Page 10
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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
Dan McShane, Committee Chair
Planning and Development Committee, 11/26/2002, Page 11