HomeMy WebLinkAboutPlanning March 20 20011
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WHATCOM COUNTY COUNCIL
Planning and Development Committee
March 20, 2001
The meeting was called to order at 3:03 p.m. by Committee Chair Dan
McShane in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Also Present:
Connie Hoag
Sam Crawford
Absent:
None
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. APPLICATION TO REZONE APPROXIMATELY 50 ACRES FROM RURAL
ONE DWELLING /TEN ACRES (R10A) TO RURAL ONE DWELLING /FIVE
ACRES (115A) (AB2000 -398)
Matt Aamot, Senior Planner, stated the proposal is for a rezone near the
corner of Aldrich and Hemmi roads. This area is designated rural in the
Comprehensive Plan. The Rural Comprehensive Plan designation allows for two -,
five -, and ten -acre development, but encourages the ten -acre development. Three -
fourths of rural areas designated in the Comprehensive Plan are already planned for
five- or two -acre development. Since adopted in 1997, about 653 acres have been
rezoned. The concern was that this application would not encourage ten -acre
development as specified in the Comprehensive Plan, which also indicates that rural
areas be forest or agriculture related. There are agricultural open space tax
classifications in the area. Within the 50 -acre rezone, only the southern -most
parcel would benefit from the rezone, in the sense that it could be divided in the
Rural, one dwelling unit per five acres (R5A) zoning. Some farming activity is on
the 18 -acre parcel, which has been in the agricultural open space tax status since
1984. It also has agricultural soils. The staff concern is of setting a precedent to
approve a rezone under those conditions. The Washington Supreme Court indicates
that the applicant must demonstrate changed conditions. The applicant for this
asserted two changed conditions. One is that the county is growing faster than
anticipated. The second condition is the adoption of the state rural legislation in
1997.
Regarding population growth, the figures available last June indicated that
the county is growing slightly faster than projected. New figures from the state say
that the county has grown slightly less than projected. Population change is not a
changed condition.
The other changed condition asserted by the applicant is the adoption of
Engrossed Senate Bill (ESB) 6094, the rural legislation, which occurred in 1997.
The legislation allows a county to recognize limited areas of more intense
development in rural areas. Staff believes this legislation does not apply to R5A or
R10A zones, but to more intensively developed areas. In looking at the criteria for
Planning and Development Committee, 3/20/2001, Page 1
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intense development, there is no way the 85,000 acres of R5A zone in the county
could qualify. That legislation is not relevant to this decision. The state
Department of Community, Trade, and Economic Development (CTED)
recommended against the rezone, citing the recent rezones in the county. Ten Mile
Creek is 400 feet to the south and contains chinook salmon. Bonneville Power
Association (BPA) power lines are 450 feet southwest of the rezone. Staff
recommended against the rezone, and the Planning Commission recommended
denial.
Hoag moved to support the staff and Planning Commission recommendation.
She appreciated the items in the findings, and recognition that 653 acres have been
rezoned since 1997.
Motion carried unanimously.
2. ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY CODE,
TITLE 20, CHAPTER 20.38, AGRICULTURE PROTECTION OVERLAY, TO
ENHANCE THE APO COMPLIANCE WITH THE GROWTH MANAGEMENT
ACT, THE WHATCOM COUNTY COMPREHENSIVE PLAN AND THE
COUNTY -WIDE PLANNING POLICIES; TO CLARIFY; AND TO ENHANCE
PROTECTION OF AGRICULTURE LANDS (AB2000 -356)
Kraig Olason, Senior Planner, stated this modification was done for three
reasons: clarify the Agriculture Protection Overlay (APO) language, increase the
ease of administration, and bring the APO into further compliance with the Growth
Management Act (GMA) and the County's Comprehensive Plan policies. There is no
major rewrite. Staff reevaluated the development cluster, the 20 to 30 percent
area, and what activities could be done outside of that area.
The APO applies to areas over 20 acres in Rural five -acre (R5A) and ten -acre
(R10A) zoning in the county to protect areas for resource use, primarily agriculture.
Staff consulted with the Conservation District, the Natural Resource Conservation
Services (NRCS), and Cooperative Extension staff. On packet page 186, the last
paragraph in item E, it discussed the 20 or 30 percent option. Staff changed the
requirement to only be 25 percent.
Staff also changed setbacks from 100 feet on the cluster subdivision to 50
feet on both sides of the cluster subdivision. Staff also changed the requirement to
require the drain field to be in the cluster development area. The additional buffer
on the property edge would provide additional protection of the wellhead protection
zone.
McShane asked if the Planning Commission made amendments to staff
proposals. Olason stated the changes the Planning Commission made are included
in the Council packet, beginning on page 189.
Hoag asked if the Planning Commission made any deletions. Olason stated
they did not.
Planning and Development Committee, 3/20/2001, Page 2
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Staff looked at section 20.38.040, Definitions, and removed some of the
section. There was confusion about whether this superceded the consolidation code
section. Staff attempted to not get into any detail about whether or not this was a
legal lot of record, but to establish that if the property is bisected, any portion of
the property under 20 acres would not have this provision apply.
Hoag asked how the definition applies to something divided for tax purposes.
Olason stated it is only a note on the tax statement as a separate taxing parcel,
and is not a separate lot of legal record.
Staff rearranged section 20.38.050 to move the exception section into the
applicability section to clarify what will be included in this ordinance. Staff also
dropped a requirement regarding recent farming. It is difficult for staff to
administrate that. Instead, the language refers only to any APO soils or whether
the property is in open space. In section 20.38.050(2)(a), they added the term
"agricultural protection overlay soils." Staff combined the NRCS soils list with the
LESA soils list.
Hoag stated previous language included levels of soils. The new language
doesn't define APO soils. Olason stated staff has a list at the office. It's called the
APO soils list. It accompanied the Comprehensive Plan map change. It explained
what the APO soils were in the text. All maps list the APO soils.
Hoag asked to add that list to this language. Olason stated staff dropped
certain soils out of the two lists when combining the lists to establish the APO list.
When the Council adopted the new APO soils map, it was the adoption of that list.
That list created that map.
Hoag stated she wanted this document to define APO soils. Olason stated he
would look into that. It is not a bad idea.
Hoag moved to include the APO soils list as a definition or attachment within
Title 20.38. She preferred that it be in the definitions, but would leave it up to the
staff's discretion. Olason stated it is not referred to anywhere else in the code, and
would be appropriate somewhere in this section.
McShane suggested a friendly amendment to reference the list in the
definition, and add the list as an appendix.
Hoag accepted the friendly amendment.
Motion carried unanimously.
Olason stated staff moved the exception section into the applicability section.
Staff also added another option for people in a developed area who would be
compelled to cluster to evaluate the surrounding area under section 20.38.050(3).
If the predominant surrounding land use is not conducive to long -term resource
Planning and Development Committee, 3/20/2001, Page 3
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protection, then they would be exempt as well. They want to look at those areas
with a higher density zoning or existing development that would not lend well to
long -term resource use.
Staff added language in section 20.38.060(5) to maintain rural character and
not end up with a huge cluster or back -to -back cluster. Subsection (6) addresses
the well, which is to be in the cluster subdivision. Subsection (7) is the amended
buffer. Subsection (9) requires that a map of the cluster be filed. Subsection (10)
is the reserve tract limitation on the use of pesticide and chemical fertilizer. They
want to maintain that area for use as a pasture. It has a 30 -foot setback
requirement. Subsection (11) identifies the limitations on the tract map.
Hoag questioned why section 20.38.060(11) only references certain
subsections, instead of all subsections (1) through (8). Olason stated he couldn't
remember why they selected only those sections.
The purpose of item (12) is to track where the parcels came from and when,
and to ensure that any subsequent rezones are looked at in the context of the
entire cluster. That is for the purpose of not adding density.
Hoag stated language in the title of the ordinance says the purpose is to
enhance protection of agricultural lands. However, a number of the changes don't
enhance agricultural use, or even take away from agricultural use. A number of the
changes don't have anything to do with agriculture. She asked the purpose for the
added language in section 20.38.010. Olason stated they looked at the multiple
use aspect of agricultural land. It is an open space land as well as a resource land.
As land is put into a reserve tract, it is available for multiple uses. The County can't
make people farm the reserve tracts, but if they are not farmed, they are still
maintained as an open space. The purpose is to retain the agricultural lands.
Hoag questioned what chapter 20.36 is about. She asked what the reference
is. Olason stated it is the rural section.
Crawford asked if they should change the minimum reserve area in section
20.36.253 to 75 percent. Right now, all references are 70 to 80 percent. Olason
stated they should make that change.
Hoag stated she was concerned with section 20.38.050(3)(b). Since this is
the rural district, most surrounding uses are going to be rural rather than
agriculture or forest use. Almost everywhere in the county there is development
patterns of densities greater than one unit per five acres, even though the zone is
R5A. Nothing will qualify if they use the language in subsection .050(3)(b). She
questioned whether this is new language. Olason stated it is new language.
Hoag questioned whether staff was concerned with that language. Olason
stated the applicant has to take into account the entire perimeter of the lot. If
there is less than 25 percent of resource lands adjacent to the perimeter, then
there is a question of the viability of any long -term usefulness of that property.
Planning and Development Committee, 3/20/2001, Page 4
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Hoag stated the concept works with more intensive zoning districts and uses.
However, the presence of an adjacent density of R2A would qualify the use even if
there are existing development with residential densities of less than one dwelling
per five acres.
(Clerk's Note: End of tape one, side A.)
Hoag stated the language implies that one could rezone to the next higher
density level if the actual use is a higher density. Because development predates
zoning, almost everyone's density doesn't actually match the surrounding
neighborhood. Once an applicant reached a zoning density of R5A, then he or she
could rezone again to a higher density level because of surrounding area predates
development. She suggested two units per five acres. Olason stated they have to
look at the entire perimeter of the parcel. All the way around the parcel, the
density would have to be less than five acres to qualify. Seventy five percent or
more of the surrounding parcels would have to be a higher density.
Sylvia Goodwin, Planning Division Manager, stated that the overall density of
a cluster subdivision would still be one unit per five acres, not less than that. The
concern is only for those density patterns that predate zoning.
Olason stated they require 500 feet between clusters, which eliminates the
concern for most parcels.
Goodwin stated they interpret density to be the entire parcel.
Hoag stated that this section is a problem because of all the high density
plats throughout the agricultural lands in the county.
Crawford questioned whether the perimeter includes zoning across a road, if
the property border abuts a road.
Hoag stated it does.
Hoag moved to amend section 20.38.050(3)(b), "...greater that -12 units per
5 acres;..." She asked for staff to provide a map of all the preexisting platting in
the rural areas. It would make the concern clear.
McShane stated he wasn't sure this would make much difference, but the
intent is to protect agricultural land. The motion is in keeping with what they are
trying to do here. He would support the motion. The APO is an attempt to provide
an opportunity for development and still protect the agricultural lands. Olason
stated that is correct.
Crawford stated the language in 20.38.050 is unclear as to what is being
clustered.
Planning and Development Committee, 3/20/2001, Page 5
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McShane stated that the APO is to address the issue that there is a lot of R5A
zoning in high quality agricultural land. This is not an attempt to downzone people.
It is an attempt to provide an opportunity to do development according to the
zoning, while protecting agriculture at the same time. Olason stated the staff is not
changing anything fundamental, but is only making the modifications they've been
asked to do because there were some things that are unclear.
Crawford stated the motion is regarding the statement, "The following
parcels are exempt from the cluster subdivision requirements:...." The previous
language used to say that the subdivisions shall be clustered. The first item under
the new statement talks about the clustered lots. The language is unclear as to
what is being clustered.
Hoag agreed, but that is a different issue. They are changing what is exempt
from it.
Crawford stated he couldn't vote on a motion regarding the cluster
subdivision requirements that refer to something later on.
Hoag stated her motion is only on what is exempt from the cluster
subdivision requirements.
Crawford asked if they are assuming that everything in the APO is clustered.
Whoever amended section 20.38.060(1) assumed that all "subdivisions and
segregations for nonagricultural uses shall be clustered," but that language was
removed.
Hoag stated that language should be included.
Crawford stated he wanted to know what they are exempting from a cluster
regulation that they haven't even said they have to cluster yet.
McShane stated this chapter applies to rural lands that are designated R5A or
R10A on the official zoning map outside of urban growth areas.
Hoag suggested reinstating the language because it addresses
Councilmember Crawford's concern, and should be included.
Hoag moved to reinstate language from the stricken section 20.38.060(1),
"Subdivisions or segregations for non agricultural use shall be clustered. The
clustered, residential lot(s)...."
Motion carried unanimously.
Hoag restated her previous motion to amend section 20.38.050(3)(b),
"...greater that 4� 2 units per 5 acres;..."
Planning and Development Committee, 3/20/2001, Page 6
1 Goodwin stated a 20 -acre piece in R5A zoning that has agricultural soils has
2 to cluster any development, unless it meets the requirement of 75 percent
3 development around the perimeter. He questioned whether they are
4 differentiating between zoning patterns and density. Olason stated they are talking
5 about both. Some areas that are now a field have existing, underlying plats, and
6 some areas have developed parcels. One could develop those parcels, or could
7 have the zoning to subdivide further.
8
9 Motion carried 2 -1 with Crawford opposed.
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11 Hoag asked if the term "development pattern" only refers to platting, not
12 existing development. Olason stated that the term refers to both.
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14 Hoag stated subsection (3) says, "parcel with land designated agriculture or
15 forest in the Comprehensive Plan." She questioned whether it has to be agriculture
16 or forest zoning, not just agriculture or forest use. Olason stated it means zoning.
17
18 Roger Almskaar, land use consultant, spoke, and submitted suggested
19 amendments (on file). He suggested removing timberland from the APO under
20 limited conditions. His client has an 80 -acre parcel, a portion of which shouldn't be
21 in the APO because it is on a steep hillside. Also, add qualifications to the
22 development standards. Last, deal with issue of physical constraints. If drain fields
23 don't require sand fill, then they should be allowed in a pasture field. Some of the
24 reserve tract areas will not be prime farmland, or any kind of farmland. There
25 should be some flexibility.
26
27 Don Kehrer, planning consultant, 748 Marine Drive, questioned why the
28 agriculture open space is a criterion for determining whether it is exempt. It bears
29 some resemblance, but not a lot, to whether or not land is suitable for use. There
30 are parcels zoned for agricultural open space that shouldn't be because they don't
31 have any agricultural soils and would not otherwise be included in the APO. If the
32 purpose is to preserve agriculture lands, then the provision is punitive. There is no
33 compelling reason to have the tax status become an issue. Regarding section
34 20.38.060(3), it is a good provision, but soils snake through parcels. There ought
35 to be a quantity of agricultural soils specified, or something that says agricultural
36 soils don't preclude the subdivision.
37
38 Hoag moved to amend section 20.38.060(3), "...one soil type the major
39 portion of the clustered residential lots shall e* be developed..."
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41 Motion carried unanimously.
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43 Hoag referenced packet page 163. The point of the APO is to enhance and
44 protect agricultural land. The proposal takes 50 feet out of the cluster subdivision
45 and moves the buffer into the agricultural reserve tract. What that does is reduce
46 the amount of land that can be actively farmed. Amend subsections (6), (7), and
47 (10). The language used to require the 100 -foot buffer on the clustered part, but
48 now the language allows moving the residential development 50 feet closer, and
Planning and Development Committee, 3/20/2001, Page 7
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takes 50 feet out of the agricultural tract. The proposal adds restrictions to what
one can do on the agricultural reserve tract. That doesn't enhance agriculture. It
restricts it. Olason stated that they are suggesting a compromise.
(Clerk's Note: End of tape one, side 8.)
Olason continued to state that they require the drain fields to be maintained
onsite, within the cluster. They also went from 30 percent to 25 percent. That five
percent is a wash or an improvement.
Hoag stated they are imposing a 50 -foot buffer on the agricultural reserve
tract that was not there before. She didn't have a problem with the drain fields.
Retain the language of 100 feet from the property line. She moved to amend
language in sections 20.38.060(6) and (7), 100 feet from the property line...,"
remove subsection (10), and move the buffer requirement back into the cluster
requirement.
Nelson stated their purpose is to protect agriculture. However, it's the
property owner who proposes the development. For some reason, the property
owner can't find a buyer for 40 acres, or can't rent the land out even though the
farmers would much rather make money in the agricultural business. People are
concerned about this clustering. People who aren't developing their land prefer the
land to remain in agricultural use, but they haven't been in the position of having to
sell their investment to make it financially. He would rather stay as flexible as
possible.
Motion carried 2 -1 with Crawford opposed.
Hoag moved to amend sections 20.38.060(11), ...paragraphs ^S; and- 1
through 8 shall be..."
Crawford spoke against the motion. That is a lot of information to put on
map. He suggested a red stamp on the map informing the person that the property
is in the APO.
Hoag amended her motion to section 20.38.060(11) to put a note on the
map "(11) The tract map or short plat shall contain the statement This property is
subject to the requirements of the Agriculture Protection Overlay."
Motion carried unanimously.
Crawford moved to remove section 20.38.050(2)(b) entirely, based on
testimony that it is not relevant to whether or not there are agricultural soils.
Hoag stated a person with agricultural open space has to justify it by
generating a certain production amount per acre. If the owner has been meeting
that requirement and, then the section should stay in agricultural open space in
order to protect agriculture.
Planning and Development Committee, 3/20/2001, Page 8
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Motion failed 1 -2 with Crawford in favor.
Crawford stated he would make two other motions as suggested by Mr.
Almskaar during the full Council meeting that evening.
McShane moved to recommend to the full Council as amended. The item will
need a public hearing.
Motion carried unanimously.
ADJOURN
The meeting adjourned at 4:55 p.m.
Jill Nixon, Minutes Transcription
ATTEST:
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Dana Brown - Davis, Council Clerk Dan McShane, Committee Chair
Planning and Development Committee, 3/20/2001, Page 9