HomeMy WebLinkAboutPlanning May 1 20011 WHATCOM COUNTY COUNCIL
2 Planning and Development Committee
3
4 May 1, 2001
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6 The meeting was called to order at 3:00 p.m. by Committee Chair Dan
7 McShane in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
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9 Also Present: Absent:
10 Connie Hoag None
11 Sam Crawford
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14 COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
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16 1. CONSIDERATION OF HEARING EXAMINER'S RECOMMENDED
17 APPROVAL OF A PLANNED UNIT DEVELOPMENT, FILED BY FRANK
18 MULJAT AND HILLSIDE ASSOCIATES FOR "GOVERNOR ROAD — PHASE
19 2" (PUD99 -0004 & LSS99 -0007) (AB2001 -145)
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21 Pat Jones, Jones Engineering, stated he represented the Muljat Group,
22 Governor Road, phase two. He submitted a copy of the city water and sewer
23 resolution.
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25 McShane stated there was a proposal to use Heron Pond for the stormwater
26 detention. Jones stated it is a regional detention facility. Heron Pond is a
27 manmade facility. They upgraded the dam five or six years ago. They upgraded it
28 a second time when they did the Wildflower project. They did a regional surface
29 water management study examination of the hydro period and implications to the
30 wetland of periodic backwaters from detention, and found they satisfied best
31 science. It was not going to be a problem. They are committed to a monitoring
32 program. Although it is state -of- the -art and good science, it is relatively new
33 science. They felt that a monitoring program would minimally give them some
34 operational data over time for future evaluations of similar proposals, and also an
35 opportunity to modify the regional plan, if it turned out that their best knowledge
36 was not consistent with reality. Substantial properties are involved beyond this
37 proposal.
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39 McShane stated they would compensate on other developments in the area,
40 if they see problems on this one. Jones stated that was correct. They will make
41 modifications or use a different strategy.
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43 McShane asked their relationship with the Muljat group. Jones stated there
44 are several different owners who were involved and participated in the regional
45 detention analysis. It is of significant financial benefit to use natural systems to the
46 extent that quality and ecological considerations are not damaged. There are
47 significant public benefits in not having to ultimately operate, maintain, and care for
48 constructed systems. It is a benefit for all the players to do it this way. They want
Planning and Development Committee, 5/1/2001, Page 1
1 to make sure they have clean water entering into the wetlands. They have bio-
2 filtration systems dealing with water quality. They are really only talking about
3 detention functions.
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5 Hoag questioned whether the monitoring is covered under the requirement
6 the hearing examiner added. Jones stated it is. It is extremely unlikely that any
7 negative impacts would happen to Heron Pond. They are concerned about the
8 wetlands that are periodically flooded to the northwest of Heron Pond, when it rises
9 occasionally. Frogs are the critical wildlife they are concerned about. Their
10 biologist did a thorough analysis and study of the hydro period and implications to
11 the wetland and wildlife, and consulted with the leading authorities at the University
12 of Washington. They made a conclusion and design criteria, which they tested to
13 determine if they passed the smell test. They did. He and the County concur that
14 the application should be monitored for a period of time. If there is a problem, and
15 the science is wrong, they will have to act to mitigate.
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17 Hoag questioned where the language from the exhibits ends up when the
18 County Council approves the development. Jones stated he presumed the hearing
19 examiner's conditions are part of what is before the County Council for approval.
20 The staff recommended conditions of approval. The developer concurred with those
21 recommendations, with some minor modification. The hearing examiner placed
22 those as conditions of approval. They included both the monitoring program and
23 the measures to occur in the future to determine whether or not additional use of
24 the wetlands for detention would be allowed.
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26 Hoag stated it is the intent of the hearing examiner that the critical areas
27 administrator retains power to modify the conditions of approval, should the
28 administrator deem such modification appropriate.
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30 McShane stated that the County Council, by approving this, would give the
31 wetland administrator some authority on whether or not it is acceptable. There is a
32 certain point in which the Council has to have some trust in whoever is
33 administering the wetland issues. They are the ones who know wetlands better
34 than the councilmembers. At the same time, this condition is showing that the
35 wetlands administrator was being fairly assertive at the time of review.
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37 Hoag stated she liked the condition that was added. She asked about the
38 language being odd. Jones stated it is unusual in the sense that the applicant has
39 demonstrated that his proposal will not have an adverse affect on the wetland.
40 That has been demonstrated with best science, and it is documented. The
41 applicant could have stopped right there, because he satisfied all the criteria.
42 However, the applicant chose to accommodate the planning staff concern that it is
43 still new science. It needs to have a degree of flexibility with wetland personnel.
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45 McShane stated civil engineers often do calculations on runoff, and frequently
46 groundwater interception isn't considered. This will address groundwater
47 interception. Groundwater interception is cutting off groundwater from the
48 foundation drains to direct it into the wetland system. He would not try to model
Planning and Development Committee, 5/1/2001, Page 2
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that because it varies so much from rainfall event to rainfall event. This monitoring
program will address that. Jones stated rainfall is a big variable in hydrology.
Groundwater is another issue.
Hoag stated she was concerned about the language allowing the critical areas
administrator to retain the power to modify conditions of approval. She was not
concerned about the monitoring. Jones stated the developer for Wildflower, as a
condition of his approval, was required to retain a wetland biologist to prepare and
design, but not implement, a monitoring and study program. That biologist did
that. It was an acceptable program. After it was submitted to the County, there
were aspects of it that came to their attention in which they determined that other
areas should be looked at. He went to the County staff and hearing examiner to
request that the Land Use Division department head would be authorized to modify
the study itself. The study program for monitoring was a technical document and
was satisfactory to the County staff. The developer wanted to look at it again, and
be able to recommend modifications to the monitoring plan. The developer wanted
the flexibility to modify the plan, with the concurrence of staff, who approved the
original plan.
McShane questioned why they chose not to put the building envelope on the
mylar for those lots that were identified. Jones stated a plat should not do more
than create land. It shouldn't carry a bunch of baggage with that. There are other
ways to accomplish that. The plat is forever. Rules change. The fundamental
purpose of the plat is a surveyor's map. Title 21 carries a mechanism for a note to
carry information on encumbrances.
Dave Grant, Senior Civil Deputy Prosecutor, suggested adding language to
the end of item two of the recommendations, '...deem such modification
appropriate and if also approved by the hearing examiner." It would automatically
include a public review feature.
Hoag questioned whether there are additional costs involved if there must be
approval by the hearing examiner. Grant stated it would be a cost to the County.
Jones stated it could be an administrative ruling that the hearing examiner
could rule on.
Hoag stated her main concern is that the language makes it so the
administrator could make the rules more lax.
McShane stated this issue was brought up by the critical areas administrator,
who is doing his job. The Council has to leave a little bit of trust there. The Council
cannot legislate that sort of thing. They have to have a certain amount of faith in
the administration. If the Council hears stories that the administration is not
carrying out the policies and legislative authority of the County, then the
administration is held accountable for that. The chief executive is held accountable.
He was pleased to see that staff thought about that issue and raised it. His other
concern about adding language regarding the hearing examiner is that he trusts the
Planning and Development Committee, 5/1/2001, Page 3
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critical areas administrator to know more about wetlands than the hearing
examiner.
Sylvia Goodwin, Planning Division Manager, stated staff recommends
approval with the conditions. The hearing examiner has addressed all the
conditions. The critical areas administrator still has to be consistent with the critical
areas ordinance.
Hoag questioned whether they usually put in a clause like that. Goodwin
stated she doesn't usually look at these.
Crawford moved to recommend concurrence with the hearing examiner
recommendation and approval.
Motion carried unanimously.
COMMITTEE DISCUSSION
1. DISCUSSION REGARDING THE ORDINANCE AMENDING THE GIFT
EXEMPTION PROVISIONS OF THE WHATCOM COUNTY CODE, TITLE
21, LAND DIVISION REGULATIONS (AB2001 -153)
Matt Aamot, Senior Planner, stated that the Council made changes last fall to
Title 21, Land Division Regulations, that included retaining the gift exemption
clause. After several months of administering the new regulations, the County
identified several items that should be modified in the gift exemptions. They are
currently working on the modifications through the standard planning process. The
modifications are being introduced to the County Council. One issue is a proposal
to restore a five -year restriction on selling a parcel that is received as a gift. This
provision was in the regulations from 1979 to December 2000. It prohibited
someone from selling a lot received as a gift unless that person got subdivision
approval, including public review. This proposal went to the Planning Commission,
who voted to not recommend the provision. Staff feels it is important to restore
the provision. They are seeing a proliferation of gift exemptions, and suspect that
it is maybe being used as a means to circumvent the standard short -plat process.
He submitted a chart of the numbers of gift exemption applications they are
getting. The average number of applications was about three to five per month, for
a total of six to 14 lots, over the past five years. In April, they received 31
applications for a total of 99 lots. At the same time, they are seeing a reduction in
short - plats. Staff asks that an emergency ordinance reinstate the five -year sale
restriction period. A normal ordinance would take six weeks before going into
effect because it has to go to the state Department of Community, Trade, and
Economic Development (CTED).
Hoag asked the difference between the short -plat process and gift
exemption. Aamot stated a person with a gift exemption comes in with the deeds.
There is not much review. There is no review for critical areas, water, sewer, or
Planning and Development Committee, 5/1/2001, Page 4
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roads. Staff makes sure there is an easement to the lot, it is five acres, and it is
being given to a family member. A short -plat has review of roads, water, sewer,
and critical areas. A technical review committee, including representatives from the
Planning, Engineering, and Health departments, looks at the short -plat. There is no
public hearing or public notice for either a short -plat or a gift exemption.
Crawford questioned how the word got out. Aamot stated certain consultants
work on this type of thing. He didn't know what was happening. The word got out,
and apparently this is being used in a way not intended. On average, they have
had 24 stamps per year over the last five years. In April, they got more than that
for a total of 85 lots. He hasn't done an analysis of who is submitting what.
Hoag stated that land use advisors watch what is happening with the code.
Crawford stated the change happened in December. There was no increase
in gift exemption applications received until April. Something happened.
Hoag stated it takes time to pursue the process.
McShane stated it takes time to drop someone off the deed, so a parcel can
be gifted to that person.
Paul Isaacson, Shallow Shore Road, spoke.
(Clerk's Note: End of tape one, side A.)
Isaacson stated that he advocates allowing exemptions. However, he's
shocked by what he's seen. Originally he knew there would be a problem. This is
an easy way to circumvent the short -plat process. The five -year restriction from
sale makes the developers go through the appropriate process. He's done gift
exemptions to family members, who are prohibited from selling for five years.
People who walk in today get to do something with their lots that he is restricted
from doing for five years. The question is why the County should prohibit someone
from the five -year sale. It is not fair now that there are 100 parcels that are in the
process, and are vested, under misconception. One of the comments in Title
21.03.040 is that exempt land division is not approved unless duly stamped and
filed for record. By submitting the application, these are not complete. The
applicants may be vested, but he questioned under what pretense the applicants
have made the application. Many of them have been applied for under
misconception and wrong intention. If all four parcels are on sale tomorrow, then
they are not a true gift. It is not a County benefit to stamp all these exemptions.
All of the applicants who are doing it correctly are being prohibited. The gift
exemption is a good idea as long as there is a proper prohibition.
He received a fax from an alleged expert, Larry Stoner. The fax said that Mr.
Stoner could, for $200 per hour, help him immediately subdivide his land. The
exemptions created good affordable housing for families and have kept family farms
and estates together. He supported the prohibition of sale.
Planning and Development Committee, 5/1/2001, Page 5
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They need to address short -plats and their timing. If they don't address it,
people will try to find loopholes through the system. If the County made short -
plats as easy as exemptions, people will do them. If it took four or six months
instead of 18 months to do a short -plat, people will not be as averse to doing them.
People are averse to the time it takes, not the cost. Look at what the vested
applications have done. Exemptions have worked for 20 years. In 30 days, many
people have found out that these exist.
Crawford questioned whether the fax Mr. Isaacson received was the answer
to his question about the reason for the spike. Isaacson stated he believed so.
Hoag asked for a copy of the fax. She questioned whether the fax could be
used to not approve the exemption. Grant stated it cannot, in and of itself. He was
not encouraged about the possibility of disallowing an application under the theory
of abusing the ordinance as it is written. The restriction came off the books,
arguably for a purpose. He encouraged adoption of the ordinance as an
emergency.
Isaacson stated he doesn't advocate stopping those who have applied for the
exemption so far. There is a bigger question of whether there should be a five -year
restriction on five -acre tracts created in this County. The Planning Commission
doesn't believe there should be, and many others agree. It may be okay for a
person to create five -acre tracts, and the critical review will happen in time.
Review may not happen at the short -plat process, but the parcel would get critical
review otherwise. Environmental reviews will happen one way or another. Any
action on the ground has to meet environmental regulations. If a person does this
exemption, and meets all the environmental reviews today, then at the time there
is a building application, the environmental guidelines have to be met at that time.
From an environmental perspective, exemptions may be truly better for the County.
Crawford stated that assumes environmental regulations will become more
restrictive and not less restrictive.
Hoag stated they may as well get rid of the short -plat process if they
eliminate the five -year restriction on a sale. They are rewarding people for being
deceitful. Isaacson disagreed. The short -plat process applies to a number of
zoning densities. This exemption is good for only five acres or larger. There is a
good reason in areas of higher density to have an ongoing short -plat process. The
question is the amount of acreage that is so big that it shouldn't be governed.
Aamot stated a potential advantage of a short -plat is protection of critical
areas through clustering.
Isaacson stated he supports exemptions and a five -year no -sale clause. It
has worked for 20 years.
Planning and Development Committee, 5/1/2001, Page 6
1 Pat Jones, Technical Advisory Committee, stated they reviewed the proposal
2 and support staff's recommendation. It is clearly a loophole that needs to be closed
3 because it subverts the process. The committee continues to oppose exemptions at
4 all. He supported Mr. Isaacson's testimony regarding environmental matters. His
5 firm was recently advised that short - plats, when recorded, are vested under the
6 conditions of approval for zoning and development standards existent at the time of
7 recordation. That is true forever, unlike a long -plat, which is five years. Courts
8 have ruled on that. It is a consideration about these five -acre exemptions. They
9 are locked in. Staff takes a long time on the short -plats because they spend a long
10 time on these exemptions. He preferred to see the County get rid of exemptions
11 and treat them all like equal citizens.
12
13 McShane moved to recommend approval of the emergency ordinance as
14 presented by staff.
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16 Hoag questioned whether Mr. Jones' comments on the environmental review
17 were representative of the TAC. Jones stated they were not. That piece of
18 knowledge is his view. The two comments go in two different directions. He
19 believes that the County should put the five -year restriction back on.
20
21 Hoag questioned whether the County recoups its cost equally with the short -
22 plat process and the gift exemption. Goodwin stated the review is much less for
23 exemptions. The County did increase the cost of exemptions a year ago, so it may
24 recoup its costs better. The issue is more about the limited amount of staff who
25 has to spend a lot of time on these exemptions.
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27 Hoag stated the conversation made it sound like the environmental review
28 was deferred on an exemption. Goodwin stated it is not. Once a property is
29 stamped exempt, the County never goes back to get the road improvements or
30 water and sewer availability review. However, the owner may find out later that
31 the lot is not developable because it is all wetland and doesn't perk. The owner
32 may be able to apply for a variance.
33
34 Crawford questioned whether there is a limit to how many times a person
35 can use the gift exemption. The intent is to divide up a parcel to family members.
36 Goodwin stated the limit is that the gift exemption can only be done one time on
37 one parcel. There isn't a restriction from getting a gift of several different
38 properties.
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40 Isaacson stated that exemptions are probably the best bargain for the
41 County, from a cost - effective standpoint. The amount of fees paid for an
42 exemption would be far more, over time, than doing one singular short -plat. It
43 would cost the County more in the long -term to process short -plats than it ever
44 would to do exemptions. A four -lot exemption would bring in more fees over the
45 course of time than a short -plat would bring in over the course of time. However,
46 gift exemptions are unfair if done for the sole purpose of circumventing the
47 subdivision process, which is what they are talking about today. In addition, the
Planning and Development Committee, 5/1/2001, Page 7
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short -plat process requires a landowner to develop land. It does not allow a person
to gift land to a family member for use as open space land.
Hoag stated no one is looking to get rid of the exemption. Isaacson stated
the gift exemption has worked for 20 years, and they don't need to fix what isn't
broken.
Jones stated there are more County efforts to process short -plats than
exemptions. That is why the County fees are higher for short - plats. When looking
at a short -plat application, the County examines the issues of environmental
consideration, access, safety considerations, and health issues. The exemptions
forgo that process. That is why short -plats cost more.
Hoag stated environmental review takes place when someone applies for a
building permit. She questioned whether the County has to spend money for
review at the point of building permit application. Jones stated that an
environmental review done during the short -plat process looks at the entire area,
whereas a review done on exempted land will not be coordinated with the rest of
the other areas.
Motion to recommend adoption of the emergency ordinance carried
unanimously.
ADJOURN
The meeting adjourned at 4:25 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, 5/1/2001, Page 8