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HomeMy WebLinkAboutNatural Resources October 9 20011 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 48 WHATCOM COUNTY COUNCIL Natural Resources Committee October 9, 2001 The meeting was called to order at 9:30 a.m. by Committee Chair Dan McShane in the Council Chambers, 311 Grand Avenue, Bellingham, Washington. Also Present: L. Ward Nelson Connie Hoag Absent: None COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL 1. ORDINANCE AMENDING THE COMPREHENSIVE PLAN MAP FROM RURAL FORESTRY (RF) TO RURAL AND THE ZONING MAP FROM RF TO RURAL -ONE DWELLING UNIT PER FIVE ACRES (RSA) FOR APPROXIMATELY 24 ACRES NEAR MAPLE FALLS (AB2001 -310F) Nelson moved to recommend approval. Sylvia Goodwin, Planning Division Manager, stated the site is along the Nooksack River. There were floodplain issues that staff was concerned about. The Planning Commission discussed flood plain, forestry, and what the applicant wants to do. The applicant asked for a rezone to build a bed and breakfast, residence, and recreational rental cabins. Under rural forestry zoning, the applicants have three parcels, although there is a question about whether one of the parcels is developable. The applicants could put up three houses if they did some lot line adjustments and a bed and breakfast. The applicant cannot put up rental cabins under the rural forestry zone. Staff is concerned about Rural, one dwelling unit per five acres (R5A) zoning, which would allow further subdivision of the property. With the text amendment the Council did last year, a 24 -acres site could have, in theory, 20 rental cabins, which is excessive in the floodplain. Staff recommended denial of the application. The Planning Commission recommended approval of the application, because there are 4.5 acres not in flood plain. That is the portion to be developed. If the applicant just did what they propose, there would be room to put their buildings outside of the flood plain. However, staff is looking at the full range of what would be allowed in R5A zoning, which would be a lot of development. The site is assessed at having 24 acres, but the river has eroded away a fair bit of it. It hasn't been surveyed. Hoag questioned whether the Council can only rezone the portion that is outside of the floodplain. Goodwin stated they could, but it doesn't follow a property boundary and would be difficult. Normally, zoning lines don't follow the floodplain rather than the property value. Hoag stated the applicant is requesting a rezone of approximately 24 acres, and one -sixth of that land is outside of the floodplain. Five - sixths of the property is Natural Resources Committee, 10/9/2001, Page 1 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 48 49 in the floodplain. Goodwin stated that is correct. There are three parcels. The Council could remove one parcel from the proposed rezone area. Hoag stated one of the three parcels is four acres that is mostly not in the floodplain. Goodwin stated that four acres is very narrow. She did not recommend making that sliver of land R5A zoning because it is too narrow to do anything with. Hoag stated it seems that the land they are asking to build on is too narrow. Goodwin stated it doesn't follow those lines. Jack Swanson, attorney, stated the estimated portion of the property in the floodplain is based on aerial photos. No one knows the elevation at this point. He thinks there is more land there than the staff does. McShane asked if the applicant has a survey to show that there is more land. Swanson stated they have a grading permit, and an understanding that when development occurs, they will do the survey and figure out what the elevations are. Goodwin stated Mr. Swanson suggested looking at Rural, one dwelling unit per ten acres (R10A) instead of R5A zoning, which would still give his client enough opportunity to do what they want. Another option would be to do a concomitant agreement to restrict development in the floodplain. Concomitant agreements are a hassle to track. She didn't encourage concomitant agreements, but sometimes they are a workable solution. The Planning Commission recommends approval. Staff recommends denial of the R5A zone, but a rezone to R10A or a concomitant agreement might work. Hoag asked what would make the R10A zone acceptable. Goodwin stated R10A may be workable because the applicant would be allowed two parcels to be legally established, and each parcel could have a house or a bed and breakfast, and up to five or ten rental cabins. That would still allow 20 rental cabins, which would be more than what would fit on that five acres. Each parcel could have a house with a bed and breakfast. They could also have an accessory dwelling unit. They can also have up to five rental cabins for each of the five acres. The provisions for allowing rental cabins was recommended by the Planning Commission and approved by the County Council for The Logs Resort. It is the same in an R5A and an R10A zone. An R10A zone allows 20 sleeping units on 20 acres. Hoag questioned whether restricting development by rezoning to R10A would restrict where the buildings are constructed. Goodwin stated floodplain regulations would require elevation. If the cabins were built right on the river, they would be highly elevated on stilts. There are shoreline setbacks and critical area regulations also. The floodplain regulations wouldn't guarantee that they have to stay out of the floodplain. A concomitant agreement would ensure that the applicants stay out of the floodplain. Nelson questioned whether there are regulations that govern building in floodplains. Goodwin stated the County does have those regulations. They require elevation of the property above the floodplain. Natural Resources Committee, 10/9/2001, 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 48 Nelson questioned why the County has those floodplain regulations. Goodwin stated the regulations are to prevent the County from having to come in later and buy out people or build dikes to protect people that are in the floodplain. Nelson questioned whether there are other properties along the Nooksack River that are in the floodplain where buildings can be built. Goodwin stated there are. There are quite a few. All of the lots in the Canyon Creek subdivision are in the floodplain. Nelson questioned whether the concern about the rezone is due to the construction of buildings in the floodplain. He asked the staff's concern about not allowing the R5A rezone. Goodwin stated there are several concerns. One concern is that they are taking forestry land and converting it to residential use in an area where there are limited services and is away from an urban growth area. Nelson stated it was said that there was no marketable timber on this property. Goodwin stated that is the applicant's opinion. Staff has photographs that show there are trees on the property. Whether or not the trees are marketable is an opinion. Swanson stated there are some very large trees on the property, but the owners intend to leave them standing. The remaining trees are just scrub. Goodwin stated the findings were provided by Mr. Swanson, and adopted by the Planning Commission. She provided photos of the parcel. The timber is not great, but there are trees on the parcel. Nelson asked if timber marketing in the floodplain is an appropriate use of the land. Goodwin stated the State forestry regulations would require buffers along the river. One wouldn't be able to log the entire parcel because of the scenic highway buffers. Nelson stated there are only 4.5 acres outside of the floodplain anyway. Goodwin stated the area is not great forestry property. Nelson asked staff's other issues. Goodwin stated the other issue was with the Endangered Species Act and salmon issues. The question is whether the County wants to allow additional development along a salmon stream. Nelson asked what other type of development they would allow if they don't allow forestry. Goodwin stated there are three parcels. Right now, the owner could put in three houses with a bed and breakfast. One of the parcels is probably not developable because of setbacks and how narrow it is. With some lot line adjustments, the current zoning would allow up two houses, a bed and breakfast in each house, and an accessory dwelling unit. That is a viable use of the property. It is not as much use as the applicant would like. Staff's concern with the R5A zone is that it could be subdivided into four parcels, each with a house and an accessory Natural Resources Committee, 10/9/2001, 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 48 49 unit, which is up to eight houses adjacent to a floodplain in an area that has no services. That doesn't seem like an appropriate use of rural property. Nelson stated that across the road is rural forestry zoning. Also nearby is R5A zoning. He questioned whether the zoning density is too high. Goodwin stated the concern is that the density is too high for an area that is mostly floodplain, on the highway, and without services. Nelson stated there is R5A zoning nearby. He asked if that is an impact. Goodwin stated the staff probably would not recommended that nearby property to be rezoned from rural forestry to R5A, if it came forward today. Staff was mostly concerned with the impacts on the floodplain and the impacts of further development along the Nooksack River in an area that should be protected for salmon. Nelson stated the issue is not so much a forestry issue as it is an issue of the impacts to salmon, due to the increased density. Goodwin stated that is correct, and also the floodplain. Hoag asked if the property, zoned as it is now, would be allowed to have two houses on two developable parcels. Goodwin stated that is correct. Hoag questioned whether they could build those houses anywhere on the properties. Goodwin stated that if the houses are built in the floodplain, they would have to be built to elevation. Practically, the houses could not be built anywhere. That is one of the problems. One of the parcels follows along the highway. The other parcel is further into the floodplain. The way it is zoned now and without doing a lot line adjustment, it would be difficult to put two houses on that property. Hoag questioned whether there would be more protection, in terms of impacts to the floodplain and to the Endangered Species Act (ESA), if it was zoned R10A with a concomitant agreement, which required the development to be out of the floodplain. Goodwin stated she believed there would be more protection under those conditions. In theory, the lower parcel could have a house now in the flood plain, if it was elevated and met the requirements. Hoag questioned the number of houses that could be allowed right now. Goodwin stated there are three parcels. The owners could put one house on each parcel, if they can meet the setbacks and stay out of the floodplain. That is the issue. Two of the parcels are in the floodplain now. There is probably not a developable site on either of those two parcels. Right now, the four -acre parcel along the highway is the only one that has a good site for a house. Legally, the owner is allowed three houses, but that is unlikely given the layout of the lots. Hoag questioned whether the building requirements in the floodplain would allow the owners to build on those other parcels. Goodwin stated the requirements would include having a septic tank. There are many issues in the floodplain. A well site, septic tanks, and elevation are the issues. Natural Resources Committee, 10/9/2001, 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 48 Hoag questioned whether it is practically possible to build only one house. Goodwin stated that is correct, if it is left the way it is now. If she owned the property, she would do a lot line adjustment, flip the location of those parcels, and put two houses on it. What the applicant could do now with the parcels laid out as they are is one house with an accessory dwelling. Hoag questioned the number of cabins that would be allowed with the current zoning. Goodwin stated no cabins would be allowed now, other than the accessory dwelling. Hoag questioned the number of cabins that would be allowed with the R10A zoning. Goodwin stated R10A zoning would allow up to 20 rental cabins, if there are 20 acres. Hoag asked for an explanation of the concern about limited services for residential use in that area. Goodwin stated if the owner wants to subdivide the property and put permanent residents in the area, the area would need police protection, a school bus, and all of those things that go along with permanent dwellings. If it is going to be for rentals, as the applicant stated, there are still some police protection or emergency medical services required for tourism, but it is right on the highway. The services for rentals and bed and breakfasts are not as much of a concern. Hoag stated that when the Council zones an area, it should look at what is being allowed, not what the applicant is saying he or she might want to do. Nelson questioned whether the Council identified Maple Falls as an urban growth area (UGA) in the County's Comprehensive Plan. Goodwin stated the County identified the Kendall area, not this area, as a UGA. Maple Falls is a small town. The small town designation doesn't go as far as this property. This property is about three - fourths of a mile to Maple Falls. The idea for Maple Falls is to have small town commercial zoning at the center of Maple Falls. It is envisioned as services for tourism or retail for residents. The zoning allows small offices, retail, and eventually a bank, lawyer, doctor, or dentist. Allow services for the surrounding area. Nelson asked the type of job market that is in the area. Goodwin stated mostly the jobs are tourism related, including the park and ski area. There is some forestry in the area. Nelson questioned whether there is adequate industry to meet the goals and objectives. Goodwin stated there is not right now. Most of the people commute into Bellingham, Sumas, Nooksack, or Everson. Natural Resources Committee, 10/9/2001, 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 48 49 Nelson asked about developing the tourism industry. Goodwin stated this type of operation is exactly what they are trying to encourage in the area. There is also property within Maple Falls, Kendall, and Deming that is suitable for that use. Hoag stated the County is now using Federal Emergency Management (FEMA) funds to buyout properties that have repeated losses. She questioned whether there are any requirements of the FEMA programs, such as not allowing development in the floodplain. Goodwin stated she is not aware of any strings attached to FEMA buyout, but this is a totally different situation than Canyon Creek and The Logs Resort, because a portion of the area is out of the floodplain. There is upland developable property on this site. McShane stated in Skagit County, there are places where zoning and development are occurring right next to flood buyout areas. FEMA doesn't necessarily have restrictions, but that is reviewed as part of the grant application. Hoag questioned the elevation requirements are in the floodplain. Goodwin stated she believed that one can elevate in the floodplain, but cannot put property on fill on the flood way without providing a study that shows it does not increase flood levels upstream. If one develops on pilings or on fill outside of the flood way, it is allowed in the flood plain regulations. Hoag questioned whether that always solves the problem, or if there has been any instance in which following the building regulations has resulted in problems. Goodwin stated she couldn't think of a specific example. These applicants are not proposing to develop in the floodplain. Hoag questioned whether the requirements in the floodplain exist to take precautions, or because it is not a problem. Goodwin stated it is a problem to zone property in the floodplain with the assumption that it will develop. That is why staff recommends denial. McShane stated the Flood Division estimated the FEMA floodplain based on an approximation. Hoag asked if there was an effort to define the flood way. Goodwin stated no. She didn't believe the flood way was being discussed with the Planning Commission. She hasn't seen a map of a flood way in the area. The estimated flood plain there is not surveyed. Swanson stated there are only two parcels of record. The property is shaped like a pan, with a handle on the east end. The handle of the property is a separate parcel of record. The pan itself is a parcel, with two parcel numbers and one owner. They are consolidated for development purposes and constitute one lot. There is one parcel that can be built on there. Under the current rules, a single - family residence may be built on that parcel, or a bed and breakfast may be built on that parcel, as a residence with the bed and breakfast in it. The owners cannot have both, because the rules say the owner must have only one dwelling per lot. The plan is to have a residence, a bed and breakfast, a gift shop, and some cabins. Natural Resources Committee, 10/9/2001, 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 48 There are five acres of developable land. The elevation of the land is 30 feet above the river. It is well out of the way of the flood. The plan now is that, as this development plan unfolds, the owner will formally survey the property. There is plenty of developable land above the floodplain for the purposes stated by the owners. They are requesting a rezone to the rural zone because the rural zone allows the activities that they've outlined. The forestry zone does not. This is not forestry property, and hasn't been for five years or more. There is no marketable timber on the property. None of the trees on the river can be logged. A portion of the property was at one point designated as a forest category. Most of it was precluded from that designation by the Assessor's Office because there are no trees there. Dawson questioned whether the owners ever asked to put the land into a forestry designation for tax purposes. Swanson stated they were in the forestry designation. The land across the street, which is still owned by the previous owner, was logged a few years ago. Only a small portion of the property on the south side of the Mount Baker Highway was allowed in the forestry classification. The rest of it was excluded. The land is not benefited by the reduced tax status. There is no developable land in the handle of the pot. The land is too low and narrow. It is not realistic to do much development in the floodplain. In order to build something in the floodplain, they would have to flood proof the development. The foundation of the County regulations is from the flood insurance program. If there is a series of regulations that meet FEMA's requirements, then the government will insure the properties in the floodplains. Otherwise, one couldn't get flood insurance. In this case, the regulations are either for stilts or fill. In addition, drain fields would have to be accepted. They have perk tested this property. It has adequate soils and drain fields to service the needs they have proposed. It would be too expensive to build in the floodplains. The buildable portion, five acres, is well above the floodplain and is where the development will occur. McShane questioned the required buffer along the Mount Baker Highway for timber harvest. Swanson stated he didn't know. When the property across the street was logged, a substantial visual buffer remained. He couldn't find out what the specific requirement is. The requirement is for timber harvests. One who wants to build would not be confronted with the same setback. The owner checked the proposal with DNR, which did not require the owners to get a forest practices permit for the clearing activities going on right now. There is no merchantable timber that is being removed. The big trees are being kept for aesthetic purposes. The owners are clearing portions of the site, will make application for a home, and hope to build a bed and breakfast and gift shop. One of the most compelling things in the Comprehensive Plan for this area is to provide economic activity up there. There will be four cabins, at most. Natural Resources Committee, 10/9/2001, Page 7 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 48 McShane asked when the owners purchased the property. Swanson stated it was purchased this spring, for this purpose. Hoag questioned what would require a consolidation of the two parcels. Consolidation only happens under certain instances. She also asked how consolidation would affect what the owners can and cannot do. Swanson stated the property is in the same ownership. Goodwin stated the fact that the property is zoned rural forestry means that two parcels, substandard in size and in the same ownership, are consolidated. Hoag asked about the forestry activity on this parcel. Swanson stated there has been no forestry activity on this property for at least 50 years, according to the previous owners. Hoag asked what was there 50 years ago. Swanson stated the property was used for pastures for cows. Hoag questioned whether this property has ever been used for forestry. Swanson stated some pioneer cut down the trees that were there. Nelson stated that area was mowed down for many miles because in the 1800's, Maple Falls was a large logging camp area. All those trees were mowed down prior to the turn of the century. He would speculate that there have been no forestry practices there since the turn of the century. Hoag stated that once forestry is logged, there is not a lot of timber there that is worth a lot. McShane restated Councilmember Nelson's motion to approve the Planning Commission recommendation. Nelson stated his reason for approval is because it doesn't meet the Assessor's classification regarding forestry practices. The land doesn't meet the criteria defined by the Planning staff, so it needs to be something else. He is open to the discussion of whether the land should be zoned R5A or R10A. The property should not be in a forestry zone. The Council needs to look at what other zone is more appropriate. Hoag questioned what rural forestry criteria Councilmember Nelson referred to. Nelson stated the Assessor doesn't value the property as forestry land. His historical background of the area would say that it doesn't meet that criterion. It hasn't been logged in his lifetime. The property does not provide a benefit to forestry in that area because of the setback requirements. DNR would be concerned about buffering. Natural Resources Committee, 10/9/2001, 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 48 49 Goodwin stated there are criteria in the Comprehensive Plan for rural forestry. The purpose is to provide flexibility and use, enabling the landowner to live on the land and practice forestry and forest related uses. The definition is, "lands used primarily for growing trees, with some low density residential development." There are also locational criteria. (Clerk's Note: End of tape one, side A.) Nelson stated the past use has to be within normal growing periods of harvest. That has not occurred. Hoag spoke against the motion. There are better places for this. The current potential uses are more appropriate with the type of property that it is currently, and with the flood plain being right there. If it was zoned R10A, there could be up to 20 cabins. A zone of R5A would allow more cabins or houses. That goes in the opposite direction of where the County is going. It does not make sense to approve development in the floodplain. If 4.5 acres are outside of the flood plain, then five - sixths of the requested rezone area is in the floodplain. If they look at the zoning in the county and in areas where people have built in the floodplain, the County has problems. Although this is not the same as Canyon Creek and The Logs Resort, the same thing happens. The people at The Logs Resort had to meet building requirements in the floodplain, but it didn't stop the creek from wiping out cabins. The road near the Nooksack River was built with all of the appropriate fill, but there was a huge chunk of road that was taken out by the erosion. It just doesn't make sense. McShane stated he is against the proposal. He is not concerned about floodplain issues. Regulations take care of that. Regarding forestry, it is clear when this area was logged that the rules were such the owners didn't do any re- vegetation or replanting. That could be done now if someone chose to create a reforestation program. For whatever reason, people haven't done that out there. His larger concern is allowing that much development in an empty area, adding impacts to the local area, and whether or not the County can provide necessary services in an area that is not conducive to that level of development. The owner can still do a bed and breakfast. The owner purchased the land on a speculative effort to see if they can get the zoning changed. He is sympathetic, but it is not great property. Even if they rezone, it will not be a good property, particularly for getting access onto the Mount Baker Highway. The State Department of Transportation will have substantial concerns with that location and with that many cars going in and out of there. Nelson stated traffic impacts would not be created by this proposal. This proposal would address some of the concerns regarding traffic impacts. People commute there because of Mount Baker and the recreational activities, not because of the bed and breakfast. This proposal would help reduce traffic impacts. People would not have to go back and forth. The Foothills area economic development plan pointed out that there is a lack of areas for people to stay, which creates the impacts. There are impacts to services. The County is capable of providing services, but businesses are failing because no one is staying in the area. They are Natural Resources Committee, 10/9/2001, 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 48 detrimentally impacting the businesses' capabilities to stay in the area. People who live there full time can't find jobs, so they are having to leave the area. The County needs to begin providing jobs and an economic base, which includes places for people to stay. Motion failed 1 -2 with Nelson in favor. Nelson stated he would make a motion for the Council to schedule a public hearing to consider amending the Planning Commission recommendation, so they can consider a rezone to R10A. He would make the motion at the evening Council meeting. 2. WHATCOM COUNTY PLANNING COMMISSION FINDINGS OF FACT, REASONS FOR ACTION AND RECOMMENDATION REGARDING MRL - MINAKER ROAD — AS NUMBER EIGHT OF THE INITIATED TEN COMPREHENSIVE PLAN AMENDMENTS, ALONG WITH ASSOCIATED ZONING CHANGES FOR CONSIDERATION IN 2001 (AB2001 -310H) McShane stated the Planning Commission recommended denial of this mineral resource land (MRL) designation. There has been discussion regarding how the applicant may want to proceed. Jon Sitkin, attorney, 1500 Railroad Avenue, stated he represented the Benners. Staff recommended approval of this proposal, which met all the criteria. The Planning Commission recommended denial. There were two issues discussed at the Planning Commission hearing regarding road access and a pipeline buried under the road. The pipeline issue came up after the close of the public testimony period. After the Planning Commission hearing, he contacted the Killiams regarding obtaining an easement over their property and using their existing access. The Killiams are open to that consideration with their proposal for an MRL coming forward in next year's batch. He approached the County staff to suggest that the Benner matter be held over to next year's consideration of the Killiam's MRL proposal comes up. The Benners would be willing to do that if the Council will be willing to take action to initiate the Benner's application for the 2002 timeframe. The Killiams indicated that they would present an application by the end of this year. In the interim, the Benners and Killiams would work on and eliminate the access issue. Another alternative is to schedule this for a public hearing. Discussion of pipeline was brought up after the close of public testimony. The Benners didn't have a chance to respond. He asked the Council to consider one of two things, 1. Initiate the same Benner application as a 2002 Comprehensive Plan amendment and take no action on the 2001 application, or 2. Schedule this matter for a public hearing. He had this discussion with staff and with Lesa Starkenburg, who have no objections. to do. McShane questioned whether initiating Benner's application next year is easy Natural Resources Committee, 10/9/2001, Page 10 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 48 49 Sylvia Goodwin, Planning Division Manager, stated the Council couldn't just carry the Benner's application over to next year. The Council has to approve, deny, or approve the application with modifications. The Council can docket it for next year and waive the fees. If Killiam comes in with an application, they would pay their fee, then the staff could merge the two applications and process them as one application. Hoag stated she would abstain on this vote and discussion. Ms. Benner was treasurer of her campaign. However, it is intriguing that the same lawyer that argued for the MRL Killiam property opposes this. She feels badly for the Benners in terms of public process. Crawford stated putting this with next year's docket goes with the concept of concurrency. If the intention is to consider how one Comprehensive Plan change or zoning change affects another, this is a classic example. Parcels are contiguous. It makes sense to put the application off to next year. Nelson asked Mr. Sitkin if there is no problem with putting it off. Sitkin stated the applicant prefers approval, but there is no assurance that it would be granted this year. They are willing to put it off to next year to resolve the access issue and better their chances. McShane asked if the Council could docket this item next year at this evening's meeting. Goodwin stated the Council could move to docket this item tonight, then in January make a motion to initiate it. If the Council places the application on the docket, there would be no fees. Nelson moved to recommend removing this from the batch, then docket it for consideration in 2002 for a Comprehensive Plan amendment. Sitkin stated he has no objection to removal of the application from this year's docket as long as the Council can also approve initiating the item. Dave Grant, Senior Civil Deputy Prosecutor, stated the applicant has to withdraw the application. The Council cannot remove an item from the batch. McShane stated the committee needs to know if applicant is withdrawing the application, or if the Council will approve the Planning Commission's recommendation for denial. Sitkin stated the applicant doesn't want to pay fees a second time. That is where they are coming from. They attempted to resolve the access issue before today, but were not successful. They felt greater assurance if they had the access issue resolved, which could be done. He suggested a motion that the Council accepts the applicant's request for removal, and puts the application on the docket for initiation next year. They just want to get it initiated for 2002, and not pay a second set of fees. McShane suggested a recommendation to uphold the Planning Commission decision and initiate the Benner's application as a Council- initiated application for a 2002 Comprehensive Plan amendment. Natural Resources Committee, 10/9/2001, Page 11 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 48 49 McShane asked if the Council could include the Killiam portion as well for next year. It is preferable for Killiams to come forward. Goodwin stated the Council could include the Killiam pit, and then waive the fees. There would be no fees to pay for public notices and staff time. McShane stated he didn't want to do that. Sitkin stated he preferred the motion to accept his withdraw and set it for next year, rather than accept the Planning Commission recommendation for denial. He will follow up with a letter that notifies the Council of the withdrawal and specifies a preferred motion. McShane stated the motion is recommend docketing the item for the 2002 docket, as a Council- initiated amendment. Motion carried 2 -0 -1 with Hoag abstaining. COMMITTEE DISCUSSION 1. ORDINANCE AMENDING THE WHATCOM COUNTY COMPREHENSIVE PLAN RELATING TO THREATENED AND ENDANGERED SPECIES (AB2001 -310A) Jody Slavik, Building Industry Association (BIA) of Washington, stated she doesn't often have the opportunity to hear what goes on at the local level. Councilmember Crawford invited her to the meeting to provide additional perspective and input. The issue is regarding the requirements for the Endangered Species Act, specifically whether the County is liable for a take if it issues permits on activity on private land. This question is the driving force for many of the local ordinances and state provisions. The BIA is not opposed to reasonable regulations and salmon recovery. The BIA supports that the County takes a thoughtful and cautious approach to the rules, laws, and restrictions that are passed, especially those that implement salmon protection measures because of their impact to private property rights and the economy. Be cautious in the way restrictions are implemented. Be knowledgeable of what the local responsibilities and requirements are. A recent decision was made in U.S. District Court in Oregon. The judge ruled that hatchery fish must be included in the final salmon count. Essentially, hatchery and wild salmon are genetically identical. The effect was to de -list the Oregon Coho salmon. National Marine Fisheries Service (NMFS) has not decided whether or not to appeal this decision. Some of the intervener environmental groups have appealed it to the Ninth Circuit Court. That decision is important for groups in Washington State. There are petitions to de -list salmon species because of this decision. The "common sense salmon recovery" lawsuit has claims that are almost identical to those raised in the Oregon case. That resides in Washington D.C. and Natural Resources Committee, 10/9/2001, Page 12 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 48 49 awaits a hearing. The Oregon ruling is going to play into the decision in that case. It could result in a de- listing. She is getting numbers on the 2001 returns. Some of these are the largest in recorded history. For example, the NMFS pre- season prediction for Puget Sound Fall Chinook exceeded 181,000 fish. In- season updates increased the number to 400,000. Regarding the Upper Columbia Spring /Summer Chinook, more than 467,000 were counted, compared to 92,000 for a ten -year average. This is exciting because it shows the local laws and regulations, and state laws and regulations, are working. The myriad of laws is doing a fantastic job of protecting the species. One job is to look at how well they are doing now. Dawson stated the laws and regulations have not been in place for very long, and questioned whether they are really having an effect. Slavik stated she is talking about all laws, including the federal Clean Water Act, State Environmental Policy Act, and local Critical Area Ordinances. All of those layers of protection do a good job. Don't layer on more unnecessary regulations. The issue is local government liability. The question is whether a county is liable, if it issues a permit, and someone does a project on private land that inadvertently causes harm to protected species. The answer is no. Section nine of the ESA makes it unlawful for any person to "take" any endangered species. Threatened species are not held to that same section nine prohibition unless the federal agencies extend it by rule. "Take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in any conduct. Section nine is also an express prohibition on acts that directly kill or injure a species. There is not a prohibition on any regulatory schemes that a county might implement that result in an inadvertent take down the road. There have been only two cases in the U.S. that extend the section nine take liability to agency actions. Only one case had a take liability finding. They have not seen a ruling out of the Ninth Circuit Court. The first case was a 1997 case out of the First Circuit Court. The Massachusetts Division of Marine Fisheries was found to cause the taking of endangered whales when it specifically licensed the use of lobster pot and similar fishing gear that directly injured the whales in public waters. There is a distinction between action on a private property versus licensing the gear that directly kills a whale in public waters. The decision said it is not enough to show that there is a significant risk of harm to whales. One has to show that the action is certain to cause actual death or injury to the listed species before the court will enjoin or stop that action. Even though the court found the state agency liable for take, it didn't stop the regulations. It set up a body to review the regulations for modification to limit harm to the whales. The other case was in 1998 in the Eleventh Circuit Court. A citizen's group sued Volusia County, Florida because the ordinance it adopted to protect the endangered turtles didn't go far enough to protect the turtles. The Eleventh Circuit Court overruled a procedural question of the court below. The court below said the Natural Resources Committee, 10/9/2001, Page 13 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 48 49 environmental group hadn't met the requirements to justify going to court. The Eleventh Circuit said they have a right to their day in court. The fact pattern is different. In the language, Congress intended that section nine would prohibit people from direct injuring or killing. Congress did not intend for local or state agencies to be attacked for their regulatory schemes that fail to prevent harm or injury to these species, as shown in the third case she would discuss. The decision of the third case was that harm includes habitat modification. The decision also said that the person might be liable for actions that indirectly take listed species through habitat modification, but evidence must be shown that the habitat modification is the proximate cause of actual death or injury. A question is what would really happen if a citizen or the U.S. government takes a county to court over this. If it is a citizen - initiated lawsuit, there would be an injunction. Most likely, an injunction would suspend a permit on a specific project or suspend a group of permits. It is unlikely that there would be an injunction against an entire regulatory scheme, particularly one that is enacted for natural resource protection in the first place. It would have to be proved that each and every permit issued under that scheme would cause a take of the species. U.S. enforcement action would involve civil penalties. This is against a person who knowingly takes. She is unaware of any action by the U.S. that the state or local regulatory actions cause a take, even though there are more than a thousand listed species. That is for regulatory actions or inaction that cause the take. If a local government has a proprietary interest, it is responsible for a certain property that the species is on, then the local government could be held liable. According to the Tenth Amendment, Congress cannot force a local government to implement the ESA. The County is not responsible to do so. A very important case about this is a 1992 case, New York v. United States. The federal government may not compel the states to enact or administer a federal regulatory program. She read from the court decision, "No matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require the state to regulate." It is important that the elected officials balance the desire for natural resource protection with the need for economic development. She read from the court decision, "...When the federal government directs the states to regulate, it may be state officials who will be the brunt of public disapproval, while the federal officials who devise a regulatory program, may remain insulated from the electoral ramifications for their decisions. Accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not preempted by federal regulation." That policy is very important. Crawford stated the Planning Division Manager was quoted as saying that the federal government might step in to impose solutions if the County does nothing to restore threatened fish runs. He questioned whether that is an accurate statement. Slavik stated there is a lot of fear that the federal government will come in and Natural Resources Committee, 10/9/2001, Page 14 1 regulate according to 4(d) rules. There is a fear that, if they do nothing, the federal 2 government will come in and tell them what to do. The 4(d) rules can be very 3 broad. They can also be negotiated with the federal government, so there is still 4 local representation. 5 6 She is talking about the local rules and plans through the Comprehensive 7 Plan that the County has complete control over, and for which the Council has 8 complete accountability to the citizens. It doesn't mean they aren't going to not be 9 involved in the rule making. When they are talking about local rules and 10 regulations, the elected officials still have a responsibility to their constituents. The 11 local rules and regulations do not have to implement federal law. 12 13 Hoag stated she attended a NMFS presentation. NMFS said the County must 14 show a plan that is demonstrated to work to accomplish restoration of the 15 threatened species. If the County does not, then NMFS said they would impose a 16 plan on the County. They were talking about, for example, buffer width of 300 17 feet. However, if the County can demonstrate that 25 foot buffers will accomplish 18 the goal, NMFS will accept the smaller buffer. If the County doesn't plan properly, 19 NMFS will come in and regulate. Slavik stated the County has planned properly. 20 There is nothing to show that what is on the Whatcom County books is insufficient 21 to protect and recover the species, if it is diminished. It is interesting to see these 22 record salmon runs. It is interesting to see these court cases in which hatchery fish 23 were excluded. 24 25 Hoag stated she heard Ms. Slavik say that the federal government cannot 26 make the local government follow the ESA. However, the NMFS told her that it 27 would come in locally if the County doesn't prove that what it has already works. 28 29 (Clerk's Note: End of tape one, side B.) 30 31 Slavik stated the federal government can adopt its own regulations that can 32 impact the local constituents. The federal government cannot force the local 33 government to implement their law. The reason that is important, through local 34 regulations, is that the federal agencies are effective at bullying the state and local 35 governments into doing their work for them. They, like many agencies, are 36 understaffed and under - funded. They don't want to have to do the work, and they 37 don't want the accountability that she mentioned, in the next election cycle. 38 39 Nelson stated the federal government can come in and impose its rules. It is 40 a big step. If the federal government did that, the Whatcom County citizens, or 41 any other citizens, would not want that. It would not be smart to go that route. 42 Slavik stated she is not opposed to recovery or regulate. She supports being very 43 cautious about what they do. There will be impacts to her industry, especially if 44 they go from protection to restoration. Be accountable to the constituents about 45 what the County's responsibilities actually are and what they choose to do beyond 46 that. Let the constituents know what the County is choosing to do. 47 48 McShane stated Ms. Slavik mentioned the Oregon hatchery decision. On the 49 Nooksack River, hatchery fish are considered essential for recovery here by NMFS. Natural Resources Committee, 10/9/2001, Page 15 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 48 Therefore, the Oregon decision is not applicable to what is going on with the Nooksack River. Slavik stated it may not be in that particular situation. McShane questioned whether Ms. Slavik had any information on the returns of the Spring Chinook on the Nooksack River. Slavik stated she did not have that information with her. McShane stated Ms. Slavik talked about injunctions. Habitat conservation programs (HCP's), which were put forward by the U.S. Forest Service, had injunctions. There was a period of time where there was no cutting done in Spotted Owl territory because of the injunctions. Slavik stated they had to work through the hurdles and issues through the HCP process. An option is for a local industry to do an HCP on the entire industry. It is a daunting task due to the cost and time it takes. However, there are assurances that would be earned on the back end. McShane asked how the Spring Chinook salmon in Puget Sound were listed. He questioned the mechanism that created the listing. Slavik stated there were proposals or petitions to NMFS in approximately 1994. McShane stated one of the organizations that sued is centered in Bellingham. Many of those people live here. Slavik stated there were petitions to NMFS for the species. At that time, NMFS would do an analysis and determines within 90 days whether they believe there is a sufficient reason to do a biological assessment for a listing process. She could not say which fish in which area had petitions at a particular time. However, by 1997, 1998, and 1999, there was an avalanche of listings down the West Coast. Also, the Fish and Wildlife Service listed the Bull Trout. Within a certain time, they conduct scientific reports and determine whether the fish qualify for a threatened or endangered status. Listings were made. They have responsibilities thereafter to determine critical habitat regions. McShane questioned whether NMFS, through those petitions, actually listed the fish on their own or had to be sued to do it. Slavik stated they weren't sued in all the cases. McShane stated NMFS was sued for one particular, local fish. NMFS lost. Hoag questioned whether Ms. Slavik was familiar with the case where a county was found guilty of a take because it allowed people to drive on the beach. Slavik stated that is the loggerhead turtle case. The county was not actually found to be guilty. It was a beach lighting issue. Dan Gibson, Senior Civil Deputy Prosecutor, stated that was a case out of Massachusetts. One case out of the Northeast dealt with the whales getting caught in the lobster gear. There is also the piping plover case in Massachusetts. Slavik stated the piping plover case doesn't talk about private property modification or permitting. She distinguished from the cases where the local government had an actual proprietary interest and a direct responsibility because Natural Resources Committee, 10/9/2001, Page 16 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 48 49 their actions were harming species. In this case, the county was warned several times that their direct actions were directly harming the species. Hoag stated that in that case, the county was not taking the action. The county was not driving on the beach. The county was allowing private citizens to drive on the beach. Slavik stated that is not a regulatory scheme. What Whatcom County is doing now is a regulatory scheme with its Comprehensive Plan amendments and development regulations. The County will be issuing permits to people. Something a person does on his or her land may inadvertently take a species. The question is whether someone could sue the County for issuing the permit in the first place. Allowing someone to drive up and down on the public property is not part of the regulatory scheme. Hoag stated one is not issued a permit to drive on the beach, but the county is not regulating by allowing the people to drive on the beach, rather than regulating by not allowing the people to drive on the beach. She questioned why that is not part of a regulatory scheme. The County was found guilty because it had not regulated sufficiently to protect the species, so it was found guilty of a take. Slavik stated they were directly allowing that activity. They were not permitting people to drive on that property. In this case, it is public property, and the County had a direct, proprietary responsibility on that property and for those turtles. In most regulatory schemes, they are dealing with permitting or a failure to permit. That court's decision was not because the County failed to permit driving on the beach, but because the County directly allowed people to drive on the beach. Gibson stated the distinction is that one case is about permitting on private property, and the other case is about public activity. Ms. Slavik's argument is not about what one can do on public property, but on how to extend that to private property. It is a distinction, but it may not be a real difference in terms of what Whatcom County does. The question is, given the status of salmon, what a local jurisdiction is responsible to do. They act partly out of fear that regulation might come in more heavily from another direction. In the light of what a local jurisdiction is responsible to do to address problems with the long -term sustainability of salmon, look at what is being proposed here and whether they use the terms "restore" or "protect." The question is how to move out of the current regime and into a more positive regime. McShane stated the proposed shoreline guidelines discussed lighting on docks, which is a private property issue. He questioned whether Ms. Slavik's opinion is that the County would be liable if the County didn't follow the shoreline rules and allowed dock owners light their docks however they want. He questioned whether the liability lies with the County, knowing that lighting is a problem, or with the dock owner, who never had to address the light issue. Slavik stated section nine says one can't actually injure or kill a threatened species. It is a liability of the dock owner. Someone would have to show that the County, in permitting the dock, actually killed the salmon. The permitted dock would have to be proved to be the direct cause of the kill. That would be an incredible burden to prove. Natural Resources Committee, 10/9/2001, Page 17 1 McShane questioned whether the dock owner would 2 Slavik stated the dock owner could face liability, but it still 3 would be difficult in a lighting situation. One would have t o 4 factors. 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 48 49 have to face liability. has to be proved. That exclude all the other McShane questioned whether Ms. Slavik believed that an individual dock owner who built a dock with lights may face a substantial lawsuit if he or she is targeted. He questioned where the BIA believes the County should just step back, and let people do whatever they want and face the liability. He questioned when the County should take responsibility through the permitting process and avoid putting people in a position where they might be held liable individually. He also questioned whether there has been a philosophical discussion of that within the BIA, and what advice the BIA would have for local governments in that perspective. Slavik stated one could argue that the responsibility goes all the way back to the light bulb manufacturer. She doesn't believe that there are going to be many lawsuits dealing with citizens groups wanting to focus on dock lights, because of the time and expense it would take to overcome the burden of proof, based on the case law that exists. She appreciated the County wanting to protect its citizens. It is a balance to protect natural resources with the need for economic development. A question is the overall impacts to the individual property owners and also to the local economy by applying overarching regulations that impact everyone versus letting everyone go on their own. She doesn't advocate either position. That is a decision the County Council has to make. In doing so, they have to determine what they are actually responsible to do, what the real need is, and where they are going to settle that balance. Hoag questioned whether there are more cases about when a county has a proprietary interest. Slavik stated she is only aware of the two reported cases. There may be unreported cases. Hoag stated that if the County doesn't do adequate protection, it could get in trouble, according to the Loggerhead turtle decision. Slavik stated that case involved a flagrant lack of action. The local government was repeatedly warned by several state agencies. The local government was put on notice, and it ignored that notice. Hoag questioned whether Ms. Slavik is a lawyer. Slavik stated she is. Hoag stated a lot of what Whatcom County needs to do regarding its economy has to do with agriculture. For example, farmers have to clean their ditches and get hydraulic permits to do that. On the river, flooding projects have to go through the State Department of Ecology (DOE) and the Army Corps of Engineers. These different federal agencies are responding to NMFS and holding Whatcom County to that standard. If Whatcom County does not respond to NMFS by meeting the standards, Whatcom County runs the risk of not getting those projects permitted. Slavik stated that doesn't change the underlying law. She hears this kind of thing from her BIA members all the time regarding local permit conditions. It depends on whether they want to make a stand because the federal government doesn't have that authority. From the perspective of her members, Natural Resources Committee, 10/9/2001, Page 18 1 they don't want to make a stand because it is too difficult to take on the 2 jurisdictions from the standpoint of time and money. Also, they don't want to bite 3 the hand that provides the permit. 4 5 Hoag stated Whatcom County would like to get the numbers of Spring 6 Chinook back to where they were. On the other hand, these projects need to be 7 approved. She questioned whether it is better for Whatcom County to make sure 8 its ducks are in a row so they can get a permit when they need it. Slavik stated it 9 depends on what the County is applying for. If a project requires federal funding or 10 approval, then the County does have to go through a consultation process. That is 11 already in place. The federal government can't then deny a permit if Whatcom 12 County doesn't increase their regulations that apply to property owners. 13 14 Hoag stated the federal government has the ability to completely stop a 15 project if they don't feel there is adequate protections in place. That is the reason 16 for the Comprehensive Plan amendments. The municipalities' responses to NMFS 17 was to make sure their comprehensive plans adequately address endangered 18 species. Whatcom County is supposed to strengthen its goals and policies so it can 19 get its permits approved and to restore the fish levels. Slavik stated that is 20 understandable. That is a clear decision the County is making on a local level and 21 that is voluntary. The federal government cannot require a county to go into its 22 comprehensive plan to make it ESA compliant. 23 24 Hoag stated it is technically voluntary, but if the County doesn't do it, it 25 doesn't get permits approved. Slavik agreed. That is what happens to developers. 26 27 Dawson questioned the number of counties that support the case in 28 Washington D.C. and that served as interveners regarding the Common Sense 29 Salmon Recovery case. Slavik stated there are many property owners, industries, 30 businesses, and elected officials who are involved. She did not recall exactly the 31 number of counties in support. 32 33 Crawford questioned whether Ms. Slavik had any comments on the staff 34 proposal or the Planning Commission proposal. The Planning Commission had an 35 issue with the removal of references to restoration as opposed to protection. Slavik 36 stated the BIA has been fighting the restoration standard on a state level because 37 of the process. The DOE has wanted for awhile to change the standard from 38 restoration. In the Shoreline Management Act, the word "restoration" exists in only 39 one place. It is in a general statement of concern regarding the development, 40 utilization, restoration, and protection of shoreline areas. It has suddenly become 41 the backbone of the guidelines. If this is something the elected representatives 42 decide to do, then it is fine. It goes through the proper process. It is unacceptable 43 for an agency to make that determination. Requiring restoration would have a lot 44 of impacts. The County Council needs to hear from many industries and from 45 property owners about what restoration means. Quantify what restoration projects 46 will be. Once there are examples, go to the industries and businesses to find out 47 how much it would cost. 48 Natural Resources Committee, 10/9/2001, Page 19 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 Hoag stated she attended a National Association of Counties meeting regarding ESA. A state put together a program so that their actions provide protection for many different species rather than repeatedly responding to numerous ESA listings. They wrote an HCP that would provide protection for 100 species that were possible for listing. She questioned whether the building industry would be interested in doing something like that. Slavik stated they considered getting into an HCP process. There are significant hurdles in terms of time and cost, but there are successful examples out of California. Her industry is interested in an HCP because it guarantees protection, and that the rulebook won't change. Builders and developers need predictability in the industry to get financing for their projects. Hoag stated most HCP's are aimed at a single species. Slavik stated many of the current rules and regulations are very protective of many species. The building industry encourages environmental impact statements to be done at a local level during the planning stage. Talk about the development that will be done over the next 20 years and what the environmental impacts will be. Therefore a developer won't have to go through the process of developing a very expensive impact statement each time. Developers can use a document that the County is satisfied with, and then address any additional concerns. McShane stated this item would be held in committee. ADJOURN The meeting adjourned at 11:40 a.m. Jill Nixon, Minutes Transcription ATTEST: Dana Brown - Davis, Council Clerk WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Dan McShane, Committee Chair Natural Resources Committee, 10/9/2001, Page 20