HomeMy WebLinkAboutCouncil May 16 20001
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WHATCOM COUNTY COUNCIL
Regular County Council
May 16, 2000
The meeting was called to order at 7:00 p.m. by Council Chair Marlene
Dawson in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Also Present:
Dan McShane
Robert Imhof
Connie Hoag
Barbara Brenner
Sam Crawford
ANNOUNCEMENTS
Absent:
L. Ward Nelson
Dawson announced there was discussion with David Grant, Senior
Deputy Prosecutor, regarding Sumas Energy 2 intervention (AB2000 -018)
during executive session in Committee of the Whole.
SPECIAL PRESENTATION
STATE OF THE COUNTY ADDRESS, COUNTY EXECUTIVE KREMEN
(AB2000 -017)
County Executive Pete Kremen read his address into the record (on file).
APPROVAL OF MINUTES
APPROVAL OF MINUTES FOR THE FOLLOWING MEETINGS:
COMMITTEE OF THE WHOLE FOR APRIL 18, 2000; REGULAR COUNTY
COUNCIL FOR APRIL 18, 2000
Imhof moved approval.
Brenner stated she would provide scrivener's errors to the clerk.
Motion to approve with amended scrivener's errors carried unanimously.
Regular County Council Meeting, 5/16/2000, Page 1
1 OPEN SESSION
2
3 The following people spoke:
4
5 Rita Foley, South Lake Whatcom, stated the Park Road project has her
6 worried. There is a large wetland /marshland under the road being fed by Stuart
7 Mountain. It feeds the diversion from the middle fork of the Nooksack into Lake
8 Whatcom. The wetland cleans up the diversion before it hits the lake. Now they
9 want to cover it up and mitigate to put the wetlands somewhere else. They can't
10 mitigate wetlands. They are a natural phenomenon. These are natural because the
11 water is not going to stop coming out of Stuart Mountain. The road keeps sinking
12 because so much water is involved. She called the Army Corps of Engineers and
13 talked to Muffy Walker. She explained to Walker that this would be disastrous for
14 the lake. She suggested resurfacing and making everyone drive slower, including
15 the school bus. They should build a school in Glenhaven. She questioned who
16 spends $3 million to $4 million for a road that is 2.8 miles long. It will be a disaster
17 for the lake if they cover up the wetlands and marshlands.
18
19 Phil McKee, 1898 West Badger Road, Custer, is opposed to the new pipeline
20 proposal by Williams Pipeline. They are proposing to pipe Canadian gas to
21 Canadian customers on Vancouver Island. There is no benefit to Whatcom County.
22 They are willing to condemn the citizen's properties. The citizens feel that no one is
23 sticking up for their issues. He asked the Council to stand up with the citizens
24 against the big corporation.
25
26 Sherilyn Wells, 1020 Geneva, Bellingham, spoke on AB2000 -116 regarding
27 amendments to Titles 20 and 21. She stated the requirement for public sewer
28 violates the Growth Management Act if it is outside the urban growth areas (UGA).
29 She didn't see any constraint of that in the section on public utilities or the
30 subdivision regulations. The specific citation is Revised Code of Washington (RCW)
31 36.70A.110(4). They should also look at the appropriate definitions in section
32 .030(16) and .030(19). Regarding vesting applications, even though it is in case
33 law, it would be nice if it was clear that an application isn't complete until it is
34 accurate. This has been an issue before the Hearing Examiner. Regarding the
35 State Environmental Protection Act (SEPA) process, this is clearly the era of the
36 Endangered Species Act (ESA) in Whatcom County. To pass any regulation that
37 facilitates subdivisions, which increases density and increases non -point source
38 pollution, they need to do a comprehensive environmental analysis, particularly in
39 areas with surface water or development that will affect groundwater that is in
40 hydraulic continuity with surface water. She encouraged the Council to do that.
41 She reminded the Council that there is no comprehensive environmental impact
42 statement (EIS) on the Lake Whatcom watershed. They need an EIS in that area
43 and a moratorium in the meantime. There is a problem in the regulations as
44 written, with the "runaway fives." She strongly recommended that they reduce the
45 inactive application timeframe to a year. With the environmental conditions
46 changing so rapidly, they shouldn't grandfather items that are no longer complying
47 with current needs and restrictions that they expect will come around in light of
48 ESA issues.
Regular County Council Meeting, 5/16/2000, Page 2
1
2
3 PUBLIC HEARING
4
5 1. ORDINANCE ESTABLISHING A 60 -DAY MORATORIUM ON
6 DEVELOPMENT IN THE CANYON CREEK ALLUVIAL FAN AREA
7 (AB2000 -175)
8
9 Dawson opened the public hearing and the following people spoke:
10
11 Trisha Cook, 7502 Glacier Springs Drive, Glacier, thanked the
12 councilmembers who attended the Canyon Creek meeting on Saturday. It is
13 difficult to judge the situation when one hasn't seen what is going on. Seeing the
14 dike cleared up preconceived notions. To buy out the properties and tear down the
15 dike will cost millions of dollars. The County could repair the dike for less than
16 $90,000 and then stipend the amount to repair the dike each year. The Glacier
17 Springs community and The Logs Resort will contribute. It was never believed that
18 the dike would not need maintenance. It is doing what it is supposed to be doing.
19
20 Tom Cosgrove, 9002 Mt. Baker Highway, Glacier, thanked the Council for
21 going to Canyon Creek. He has three points: 1. Much time, effort, and money
22 were put into the original dike design. Geo- Engineers used the 1989 flood event,
23 the worst on record, as the design flood event. They sized the rock to withstand
24 those flow velocities. Although the dike sustained damage during a high flow in
25 1996, Geo- Engineers stated the toe of the dike has not been undermined or
26 eroded, rather the erosion that can be seen is the low -flow flood plain. Geo -
27 Engineers has also stated that the dike has performed as intended. 2. The County
28 Planning Department was 100 percent behind the original dike construction. Until
29 recently, they were committed to maintaining the structure. 3. Although
30 permitting repairs will be lengthy, it is feasible and is possible to complete the
31 repairs without entering the stream channel. That would significantly reduce the
32 mitigation required to obtain the permits. Since their visit to the dike they will
33 agree that any moratorium or buyout option is unjustified and unreasonable. Since
34 the vast majority of the dike is in perfect condition, it is unnecessary to consider
35 moving the dike further back. He urged the Council to reject those options in favor
36 of proceeding with less costly repairs to the existing channel dike, as well as a
37 reinforced downstream extension.
38
39 Kim Shepherd, 2720 Willow Lane, Bellingham, stated she attended the
40 Saturday session. At that meeting, someone from the Department of Fisheries
41 stated that the last permit was denied because he didn't like the plan submitted by
42 the County. She provided a Hearing Examiner's Findings of Facts from July 1996
43 (on file) that states condition four of the shoreline substantial development permit
44 be deleted for the purposes of Canyon Creek. It would allow all normal
45 maintenance and repair of shoreline structures allowed under the permit a normal
46 repair. Maintenance work is within the intent and scope of a substantial
47 development permit. The Hearing Examiner went on to say that no good reason
48 exists to not allow normal maintenance and repair of these structures allowed
Regular County Council Meeting, 5/16/2000, Page 3
1 under the shoreline permit. She asked the Council to reexamine why the permit
2 was denied. According to the fellow from Geo- Engineers, the dike is a viable
3 possibility for withholding water for Canyon Creek. Ed Henken, former County
4 Engineer, said in 1991 that the reason for the dike was to hold the water so it
5 would not cross the Mount Baker Highway and destroy the North Fork Bridge. She
6 also provided the letter to the Glacier Springs from Ed Henken that outlined the
7 percentiles of how that restoration originally was to be funded. When they first
8 applied for the permit, 75 percent of the maintenance was to be provided by the
9 federal government, 12.5 percent was to be provided by the state, and the
10 remaining 12.5 percent would be divided by the County's stream bank protection
11 fund (70 %) and the property owners (30 %). The County Executive at the time
12 concurred.
13
14 Brenner stated the federal contribution was supposed to be from FEMA. They
15 were told on Saturday that FEMA withdrew that arrangement. That would make it
16 virtually impossible to go ahead with the contract if they don't have the FEMA
17 money.
18
19 Shepherd questioned whether that contract was negated. She understood
20 that FEMA withdrew the funds at the time because the permit was not taken care of
21 locally.
22
23 Brenner stated that is not what they were told. She wanted it on the record
24 that FEMA is going in a different direction.
25
26 Dawson stated there is also the option of a sub -flood zone.
27
28 Brenner stated a diking district could also be established.
29
30 Hearing no one else, Dawson closed the public hearing.
31
32 Imhof moved to approve the ordinance.
33
34 Brenner stated she is opposed to the moratorium. She is comfortable in
35 making a decision on which way to go with this. If the moratorium doesn't pass,
36 she would make a motion on which direction the County should go.
37
38 Dawson stated they discussed this issue. She asked Brenner to list the items
39 she wanted addressed.
40
41 Brenner stated there are three main items. She liked the idea of a voluntary
42 buyout. It is not possible to do something like that until there has been a major
43 event, and FEMA will kick in. It isn't something the County can do at this time. At
44 this time the County can give as much protection to the community as possible by
45 doing repair on the dike. After seeing the dike, she didn't see a lot of damage to it.
46 Her bigger concern is the landslide above the dike. The County should, as part of
47 the ordinance, include a provision that the deeds of the properties in the active part
48 of the alluvial fan will state that this property is in a hazardous alluvial fan. She
Regular County Council Meeting, 5/16/2000, Page 4
1 was concerned that people would buy property in the area and apply for permits,
2 only to find out that they are on an alluvial fan. They talked about setting up either
3 a flood sub -zone or a diking district. She spoke to Ron Bronsema, who provided
4 information on alternative methods for funding. In some instances, a diking district
5 is a more efficient way to go.
6
7 Dawson stated those are considerations if the moratorium ordinance fails.
8
9 Imhof stated the problem at Canyon Creek is not the dike, per se, that is
10 protecting these houses. When the toe gets saturated, it shuts off the creek and a
11 lake builds up behind it until it is washed out. That is the debris torrent that comes
12 down the creek. It is very steep. Soils are very unstable and have a tendency to
13 slide into the river during an event and cause major destruction downstream. On
14 Saturday, they walked the dike. There is a big gaping hole in the dike
15 approximately 100 yards long. The dike they walked has been breached in one
16 area and is unstable higher up. The river comes through a rock canyon, hits the
17 dike at a 90 degree angle, and heads toward the river. The first time there is a
18 problem, and someone gets killed, the County's head is on the block. It isn't
19 responsible and they need to place a moratorium, enact a voluntary buyout, and
20 put the restriction on the deeds.
21
22 Hoag questioned the boundaries of the landslides.
23
24 Paula Cooper, Special Projects Engineer, stated there are two different
25 landslides, one on each side of the creek. They come together.
26
27 Hoag stated the creek is in the middle. She questioned whether the
28 landslides meet at the same point. Cooper stated they are right across the river
29 from each other.
30
31 Hoag questioned whether anyone could speak to the letter submitted by the
32 Glacier Springs Property Owners' Association. She referenced relocating the
33 barrier. It seems that relocating the barrier reduces the amount of ability to flood
34 the properties in the area, and also protects the highway better. The letter says
35 engineers considered the location in 1994, and they were reluctant to place it
36 further back because it would be more difficult to redirect the water into its original
37 course. She questioned where that comment comes from. The reports from the
38 Flood Advisory Committee and the Public Works Department said the liability would
39 be reduced, but there is a cost to moving it and from then on it would be cheaper
40 to maintain, provide better protection for the properties and the highway.
41
42 Brenner stated Dick Prieve talked to them about that on Saturday. One of
43 the problems with that is that moving it would create a sediment buildup. When it
44 blows out, it will be much bigger and more destructive than what would happen
45 now.
46
47 McShane stated part of the reason the dike was placed where it is was to
48 make sure that the stream maintained velocity to transport the sediment load of
Regular County Council Meeting, 5/16/2000, Page 5
1 boulders that are rolling down the creek. Geo- Engineers intentionally moved it
2 inward to do that. It has successfully done that. If they move the dike back, the
3 water won't have enough energy to transport those bounders. The boulders will be
4 deposited and will fill the channel and over -top the dike. The section they walked is
5 a very small piece. It is a bedrock landslide and involves old- growth timber. On
6 the way back down from the field trip someone said no one in good conscience
7 could think they could ever do anything to prevent the damage. If anyone is in a
8 position to do that, they need to look at the landslide first. In his job, he has
9 refused to write a report for property owners in the area. They would be in trouble
10 and amiss morally to say the area would be safe to build homes and that a levee
11 would stop any landslide. It is extremely steep mountainous terrain. They've been
12 lucky it hasn't dammed the creek and then let lose with an event larger than any of
13 them have imagined.
14
15 Hoag asked if the far reaches of the landslide all head to the creek or
16 elsewhere.
17
18 McShane stated it is all heading down toward the creek.
19
20 Cosgrove stated the information from the Forest Service is that the landslide
21 moves 18 inches per year. In 1989 it moved six feet, which is the largest they've
22 seen.
23
24 Dawson stated she is very uncomfortable with a moratorium. She was
25 comfortable with an optional buyout.
26
27 McShane stated the moratorium is not forever. It is to give them time to
28 figure out how to approach the problem
29
30 Dawson stated they cannot approach the problem.
31
32 McShane stated they need to come up with rational options.
33
34 (Clerk's Note: End of tape one, side B.)
35
36 McShane continued to say there was an instance of a much steeper landslide
37 that had not moved in 500 years and there was no indication that it would ever
38 move. Eight homes were built on it. Last year it moved twelve feet in one day.
39 These things happen episodically. When he looks at the creek cutting through the
40 toe of this thing, it is hard to imagine it doesn't have the counter - weight to keep it
41 from moving again.
42
43 Hoag asked about a bedrock landslide.
44
45 McShane stated the failure is occurring within bedrock. The bedrock is not
46 strong enough. There is an extinct fault. Within that fault line, there is a rock type
47 that has serpentine in it. One cannot stand on serpentine, even if it is at a low
48 angle and wet. He has been up on the upper part of this fault where it goes over
Regular County Council Meeting, 5/16/2000, Page 6
1 the mountainside and out of this drainage. The ground is slime. That is what all
2 that weight of rock is sitting on. It is very slick.
3
4 Crawford stated he wanted to put a sign at the entrance to Glacier Springs
5 that warns people they are entering an alluvial fan geologic hazard, and people
6 must recognize the risk if they are going to purchase a property. The other two
7 things he wanted to do is to have the County look into sharing or expending the
8 cost of engineering the existing dike to determine the repairs, then ask the
9 community to develop a local improvement district (LID) or diking district to fund
10 those repairs. Item three is establishing a buyout program that the County would
11 not fund. If the County gets FEMA money, the program should be in place. It
12 would take some financial outlay for the County to get that program established. It
13 would be prudent to have the program in place.
14
15 If the entire issue is about when people find out they are taking a risk by
16 developing their property, it seems the County should not incur a liability, and it
17 should take prudent steps to inform people of what is going on. No one can deny
18 that they have been duly warned when a sign is at the entrance.
19
20 Dave Grant, Senior Civil Deputy Prosecutor, stated that life is not without
21 risks. The Council has identified a potential risk it wants to address. The Council
22 has to balance the desire to protect people with the risk it will subject the County
23 to.
24
25 Brenner stated part of this issue is a legal matter and should be discussed in
26 executive session.
27
28 McShane stated this is why they thought the idea of a moratorium is
29 something to think about. There are a lot of complicated legal matters he doesn't
30 understand. That is the purpose of the moratorium. It is not something they can
31 work out tonight.
32
33 Brenner moved to go into executive session because they have a litigation
34 issue.
35
36 Grant stated it is worthy of a quick discussion in executive session to
37 determine whether they need to discuss this issue in executive session.
38
39 Brenner stated Grant's comments would expose the County to litigation if
40 they don't go into executive session. Grant agreed.
41
42 Motion carried 4 -2 with Dawson and Imhof opposed.
43
44 Aubrey Cohen, Bellingham Herald, asked for the exact legal justification for
45 going into executive session.
46
47 Brenner stated that if Grant's comments are made in open session, it could
48 expose the County to litigation. She questioned whether Grant agreed. Grant
Regular County Council Meeting, 5/16/2000, Page 7
1 stated it makes sense to go into executive session and discuss whether they should
2 be in executive session.
3
4 Brenner stated Grant is the Council's legal advisor. If he doesn't agree with
5 going into executive session, she wouldn't go. She would take her vote back if she
6 can't get a definitive answer.
7
8 Hoag stated the Open Public Meetings Act says they have to state the legal
9 basis for going into executive session. She questioned whether there are legal
10 grounds for the Council to go into executive session. The have to have a legal basis
11 in it. Grant stated they would be hanging out on a limb if they have the discussion.
12
13 Hoag asked if potential litigation is executive session material. Grant stated
14 it is. He questioned the parliamentary procedure.
15
16 Dawson stated the motion has been made and the majority approved the
17 session.
18
19 (Clerk's Note: The Council went into executive session at 8:00 p.m. for five
20 minutes.)
21
22 Dawson quoted the statute that allowed the executive session, Revised Code
23 of Washington (RCW) 42.30.110(I). Council can go into executive session to
24 discuss with legal counsel representing the agency matters relating to agency
25 enforcement actions or to discuss with legal counsel representing agency litigation
26 or potential litigation to which the agency, the governing body, or member acting in
27 an official capacity is, or is likely to become, a party when public knowledge
28 regarding the discussion is likely to result in an adverse legal or financial
29 consequence to the agency.
30
31 Imhof stated the moratorium would give the County 60 days to do what
32 Councilmember Crawford asked for. It allows them to look at the dike, look at the
33 cost of the dike, make the comparison as to whether it is in the best interest of the
34 County to put additional money into the dike. The moratorium also allows the
35 councilmembers the opportunity to answer the legal issues that are addressed, to
36 decide which way the County wants to go, and to put a program together instead of
37 allowing homes to be built in an area where they possibly should not be built. Sixty
38 days will give them time to figure out if they want to restrict the land, where the
39 boundary should be, if the dike should be repaired and to what extent it should be
40 repaired, if the dike should be moved back, or what should happen in that area.
41 The moratorium allows the Council 60 days to make the judgements. They don't
42 have to wait the full 60 days. If they make a decision sooner, they can rescind the
43 moratorium and move along. The responsible thing to do is approve the
44 moratorium and give staff time to address concerns.
45
46 Brenner stated that is why she proposed the moratorium in the first place.
47 She had her mind made up by going on the tour. They have not had any
48 applications, there isn't going to be a run of applications, and anything they do will
Regular County Council Meeting, 5/16/2000, Page 8
1 take at least two years. The Council can give staff direction, but they don't need a
2 moratorium. She is comfortable with the voluntary buyout program, repairing the
3 dike, and asking staff to work on a boundary of where the landslide would knock
4 out. She wanted a notice on the deeds of the properties that are there.
5
6 Dawson stated she also would not support the moratorium.
7
8 Hoag questioned Crawford's position on the moratorium.
9
10 Crawford stated he was opposed to a moratorium.
11
12 Hoag questioned why.
13
14 Crawford stated he hasn't heard convincing reason for it. He didn't believe
15 that they can assume responsibility for all the risks that anyone takes to build on
16 any property anywhere in this county. There is a hazard in this spot that is greater
17 than where he lives, but he also has hazards at his house. He does not expect, nor
18 will he have, a compelling feeling that the County is responsible if this dams up and
19 people get washed away. The Flood Advisory Committee, Public Works
20 Department, and the residents look at a structure the County constructed several
21 years back and say it needed ongoing work, hasn't received the ongoing work, and
22 is starting to show the wear of that neglect. The residents are asking the County to
23 help them do the work. He is for helping with the engineering aspect and would
24 like to look at the costs that would be related to providing that help. He was not
25 excited about paying for further repairs on the dike, although he would consider it.
26 He wanted the community to step up to the plate and to see funding mechanisms
27 developed for that. Regarding the moratorium, he didn't see what difference it
28 would make.
29
30 Brenner stated there is not any way there will be a blow out or damage to
31 the people in the next 60 days.
32
33 Crawford stated they never know that.
34
35 Brenner stated this is getting to be the driest part of the year. All things
36 being equal, this is the least likely time of year for anything to happen. The 60 -day
37 moratorium was to give them a window of time to determine which option they
38 wanted. She was comfortable with the options she wanted, including making the
39 community decide if they want to form a diking district or a flood sub -zone district.
40 Those are things that can be done before a major event is likely to happen.
41
42 Dawson stated the motion is to adopt the moratorium for sixty days.
43
44 Motion failed 2 -4 with Imhof and McShane in favor.
45
46 Jeff Monsen, Public Works, asked for clarification on what the staff
47 expectations are and what meetings the Council wants to schedule in the next
48 month or two to resolve the issues.
Regular County Council Meeting, 5/16/2000, Page 9
1
2 Brenner moved to get an estimate on what the repair of the dike would be;
3 having the administration work with legal counsel to decide where the active part of
4 the alluvial fan is; work on a deed disclosure; install a sign at the entrance of the
5 area; work with the community to give them the opportunity to decide if they want
6 to set up a sub -flood zone district or a diking district; and create a voluntary buyout
7 program that would be funded by FEMA.
8
9 Imhof suggested they bring those items back to committee.
10
11 Dawson agreed to have the committee come forward with recommendations.
12
13 Brenner stated they would still ask staff to do some work to deal with these
14 concerns in committee in two weeks.
15
16 Imhof suggested that the Council ask the staff to develop the options for the
17 problem.
18
19 Hoag stated Brenner's concerns are clearer. She didn't want to see signs all
20 over the place.
21
22 Brenner stated she is more interested in deed disclosures.
23
24 Hoag stated she didn't like that either.
25
26 Brenner stated she wouldn't support any repair if they don't put signs on
27 those deeds that tell people what they are buying. She is asking staff to bring
28 information forward on what the boundaries would be.
29
30 McShane stated he hoped the staff would consider other things that the
31 Councilmembers haven't suggested.
32
33 Brenner moved to request that staff bring forward information on the issues
34 that have been mentioned to the next Public Works Committee in two weeks.
35
36 Kremen stated the ultimate decision would have to be made by the County
37 Council. Many of the alternatives are already on the table. The administration is
38 ready to assist and will do that. The administration will work with the Council to
39 provide whatever information is available, but the ultimate decision is the Council's.
40
41 Brenner stated she wanted a map that shows precisely the active part of the
42 alluvial fan.
43
44 Dawson stated that would only be necessary if they want to put up a sign
45 and create a deed disclosure. She questioned whether that would come after a
46 decision.
47
48 Brenner stated it may influence people's decision.
Regular County Council Meeting, 5/16/2000, Page 10
1
2 Hoag stated they would need a map to establish what area they are offering
3 the buyout to.
4
5 Imhof suggested that Brenner write a letter outlining concerns and get it
6 approved by Council.
7
8 Brenner stated she would create a list of concerns and the councilmembers
9 could add to the list.
10
11 Monsen stated it would be nice to know which items the Council wants the
12 staff to delve into deeply in two weeks.
13
14 Brenner stated the councilmembers should submit their lists of concerns
15 independent of hers.
16
17 Crawford thanked The Logs Resort for hosting the field trip on Saturday.
18
19 Monsen suggested meeting elsewhere when they have this discussion during
20 the Public Works Committee in two weeks.
21
22 2. RESOLUTION ADOPTING THE LAND AND EASEMENT ACQUISITION
23 AND FLOOD MITIGATION ASSISTANCE PROGRAM (AB2000 -185)
24
25 Jeff Monsen, Public Works Director, gave a staff report. A draft version of
26 the proposal was discussed. There are a few changes in what the Council saw in
27 the work session, compared to the document now. They are not dramatic changes.
28 Even though this is related to the previous topic, this is the foundation of the policy
29 issues so they can deal with locations like Glacier Springs. It doesn't create the
30 proposal for Glacier Springs. Adoption of this gives the County the foundation to be
31 a viable applicant for other locations. It doesn't set the rules.
32
33 Brenner stated the title should say, "Whatcom County Voluntary Land and
34 Easement Acquisition and Flood Mitigation Assistance Program." She didn't want
35 people to think that they are going to have their property pulled out from
36 underneath them by eminent domain.
37
38 Monsen stated they added language to packet page 245, regarding
39 condemnation being used only as a last resort. If the word "voluntary" is in the
40 title, it may negate the last resort option.
41
42 Hoag asked about what instance the County would condemn property as a
43 last resort. Monsen stated that if they come across a special case, it could be
44 brought forward for special consideration. They can make it voluntary without a
45 condemnation option. If that option is the only one available, staff would have to
46 ask for the Council's permission to proceed. That is the case, regardless.
47
Regular County Council Meeting, 5/16/2000, Page 11
1 Crawford asked about packet page 246 regarding funding and whether this
2 will be funded from the general fund. Monsen stated any County resource would
3 come from the flood fund.
4
5 Brenner asked if they could also use money from the flood sub - zones.
6
7 Imhof stated the flood sub -zones don't have any money.
8
9 Monsen stated the likely primary source will be the flood fund when dollars
10 are applied. Other sources are available.
11
12 Crawford asked what is different about this. He asked if there is no vehicle
13 to use the funds. Monsen stated there is no formal program that allows the County
14 to identify, prioritize, and become eligible for these various programs. The County
15 has to say it will be eligible.
16
17 Dawson opened the public hearing and the following people spoke:
18
19 Ron Bronsema, 8135 Northwood Road, Flood Advisory Committee Chair,
20 stated it is the buyout and flood proofing program. The County Flood Advisory
21 Committee gave it unanimous approval. It is an important ingredient in the
22 implementation of the County's Flood Hazard Management Plan for the lower
23 Nooksack River; however, it includes all of Whatcom County. It makes the County
24 eligible for Federal Emergency Management Act (FEMA) funds. Right now in the
25 county, there are 15 competitive loss claims in which there are FEMA funds
26 available for buy out. FEMA made a report to congress two years ago that stated
27 for every dollar in the flood buyout program, they are saving two dollars in claims.
28 It is a cost - effective program. The program will give the County a chance to
29 acquire some setbacks and habitat areas that will help the Endangered Species Act
30 (ESA) programs for the County and the Water Resources Division.
31
32 Hearing no one else, Dawson closed the public hearing.
33
34 Hoag stated both the draft document and the document in the packet refer to
35 the Comprehensive Flood Hazard Management Plan of the lower Nooksack River.
36 She questioned whether it prevents the County from using the program in the
37 upper reaches. Monsen stated the intention is for the program to be applied
38 countywide. The motivation to adopt the program came from the lower Nooksack
39 plan. From the FEMA review, it is countywide. The last sentence of the third
40 paragraph on the first page emphasizes that.
41
42 Hoag questioned whether the County could lease the purchased lands to be
43 farmed. Purchasing the lands takes them off the tax roles. Monsen stated he
44 understood that the local entity has flexibility on what to do with the land, as long
45 as it doesn't build structures. They will look for ways to put the property in a
46 beneficial use.
47
Regular County Council Meeting, 5/16/2000, Page 12
1 Dawson asked if the County could purchase the property rights. Monsen
2 stated they could do that. It will be evaluated on a case -by -case basis.
3
4 Hoag asked if this document allows the County that flexibility.
5
6 Paula Cooper, Special Projects Engineer, stated it does. The title specifically
7 states easement acquisition.
8
9 McShane thanked Paula Cooper, Jeff Monsen, and Ron Bronsema for their
10 work on this.
11
12 Imhof moved approval.
13
14 Brenner stated the County could purchase the land and work with the land
15 trust to negotiate deals with private property owners or neighbors. Leasing it is
16 fine, but she preferred to keep it on the tax role. She still wanted "voluntary" in
17 the title.
18
19 Hoag agreed.
20
21 Dawson stated that any condemnation issue has to go to the Council. By
22 including the word "voluntary," it says the County will not ever condemn the
23 property. There may be reasons to condemn an area.
24
25 Brenner stated the condemnation procedure should be separate. There
26 should be an incredible emergency for the County to take someone's property
27 away. She was not comfortable having that as an option in this document.
28
29 McShane stated there is language regarding the last resort criteria. Federal,
30 state, and local regulations prohibit reconstruction of buildings. The property in
31 question has to cause significant flood damage to other properties. An another
32 criterion is if a property owner refuses to sell in an area that is needed to complete
33 a capital improvement project that will benefit the majority of property owners.
34
35 Hoag stated she wanted clarification on whether all the criteria have to apply.
36 The third item makes condemnation wide open. The third item is subjective.
37
38 Monsen stated that, with the condemnation proceedings, the staff has to
39 come to the County Council. If they take out the condemnation language, staff will
40 follow the same procedure as if it was left in.
41
42 Brenner moved to add the word "voluntary" to the title and everywhere else
43 the title language is located, and also to remove the condemnation language.
44
45 (Clerk's Note: End of tape one, side 8.)
46
47 Motion to amend failed 2 -4 with Brenner and Hoag in favor.
48
Regular County Council Meeting, 5/16/2000, Page 13
1 Hoag asked about language on the last page of the draft document.
2
3 Cooper stated the version in the packet is the most recent, final document
4 that they would approve.
5
6 Brenner moved to remove the third condemnation criteria.
7
8 Hoag stated she would support that motion. It is vague language. A
9 property owner should not have his or her property condemned because a
10 jurisdiction needs to complete a capital improvement project that will benefit other
11 property owners.
12
13 Dawson stated every government has to do that.
14
15 Hoag stated it doesn't make it right.
16
17 Imhof stated it still has to come back to the Council for approval.
18
19 Motion failed 2 -4 with Brenner and Hoag in favor.
20
21 Motion to approve the resolution carried 5 -1 with Brenner opposed.
22
23
24 CONSENT AGENDA
25
26 Imhof reported for Finance and Administrative Services Committee and
27 moved approval of items one, two, and four.
28
29 Motion to approve items one, two, and four carried unanimously.
30
31 1. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO A
32 CONTRACT AMENDMENT BETWEEN THE WHATCOM COUNTY HEALTH
33 AND HUMAN SERVICES DEPARTMENT AND THE OPPORTUNITY
34 COUNCIL TO EXTEND COMMUNITY ACTIVITIES TO ASSIST ELIGIBLE
35 INDIVIDUALS AND FAMILIES TO APPLY FOR MEDICAID AND ENROLL
36 IN A HEALTHY OPTIONS MANAGED CARE PLAN, IN THE AMENDED
37 AMOUNT OF $54,909, FOR A TOTAL CONTRACT AMOUNT OF $104,909
38 (AB2000 -190)
39
40 2. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO AN
41 AMENDED CONTRACT BETWEEN WHATCOM COUNTY PUBLIC WORKS
42 AND ROB KELLY AND MARY DUMAS TO PROVIDE FOR FACILITATION
43 OF ADDITIONAL PLANNING UNIT MEETINGS AND SCHEDULED UNIT
44 MEETINGS THROUGH DECEMBER 2000 FOR A TOTAL AMOUNT OF
45 $41,910, WITH THE AMENDMENT AMOUNT BEING $26,950 (AB2000-
46 191)
47
Regular County Council Meeting, 5/16/2000, Page 14
1 3. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO A
2 CONTRACT BETWEEN WHATCOM COUNTY AND RE SOURCES TO
3 CONDUCT A SHORELINE INVENTORY OF WHATCOM COUNTY,
4 DEVELOPMENT OF GIS MAPS, AND A STRATEGY FOR PROTECTING
5 SHORELINE HABITAT IN THE AMOUNT OF $22,250 (AB2000 -192)
6
7 Crawford moved to hold in committee for more time to find out about the
8 bidding process to satisfy his concerns that there was plenty of opportunity for
9 qualified groups to bid on this contract.
10
11 Brenner stated she understood it went out for a request for proposal (RFP)
12 process by the same legal process as all other RFP's.
13
14 Bruce Roll, Water Resource Division Manager, stated there was only one
15 respondent.
16
17 Dawson asked how they advertised the bid. Roll stated it was advertised in
18 the Bellingham Herald.
19
20 Hoag asked if there is a problem in holding it for two weeks. Roll stated they
21 are behind now, and they had to adjust the timeframe for this project. It will set
22 them back further. The schedule is ultimately in the hands of the contractor. This is
23 tied to grant funding also. He would have to determine how delaying it would affect
24 the grant funding.
25
26 Hoag questioned the timing constraints regarding the shoreline inventory.
27 Roll stated that he can't comment on RESources' actual plan, but they need to train
28 people and gather the volunteers. They received the first installment from the Port
29 of Bellingham.
30
31 Hoag asked if anything makes it difficult if they do not approve it in a timely
32 manner. Roll stated the audit needs to be conducted during certain low tide periods
33 and during nice weather. He is not an expert on issues relating to identifying
34 habitat. It must be done in the summer months.
35
36 Dawson questioned which items listed for identification could be subjective.
37
38 McShane stated that, regardless of people's feelings about RESources, the
39 price is good. They will involve the community in a positive way. Sometimes it is
40 good to work with your enemies.
41
42 Brenner stated RESources is not her enemy. She wished they'd leave
43 personal stuff out of this. They have the most expertise, the price is low, there is
44 little to be done subjectively, and there will be checks and balances. They should
45 move on with it.
46
47 Motion to hold for two weeks failed 2 -4 with Crawford and Imhof in favor.
48
Regular County Council Meeting, 5/16/2000, Page 15
1 Hoag moved approval.
2
3 Motion carried 5 -1 with Crawford opposed.
4
5 Crawford stated his reason for objecting is not a personal issue. There are a
6 lot of people in the community who can do the work. He is concerned that not
7 everyone had an opportunity to look at it, even though the County went through the
8 legal channels.
9
10 Dawson stated some people are in the know when things are advertised.
11
12 Crawford stated the advantage that RESources has is the ability to muster
13 volunteers. He does see both sides.
14
15 McShane stated he is often concerned about the makeup of committees in
16 getting that kind of insider information.
17
18 Brenner stated she didn't like the implication that there is an insider track.
19 There isn't an insider track.
20
21 4. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO A
22 CONTRACT BETWEEN WHATCOM COUNTY AND ECONOMIC AND
23 ENGINEERING SERVICES, INC. (EES) FOR CONSULTING SERVICES IN
24 DESIGNING IMPROVEMENTS TO ROAD MAINTENANCE AND ROAD
25 CONSTRUCTION PRACTICES, CONSISTENT WITH CURRENT EFFORTS
26 TO PROTECT THE LAKE WHATCOM WATERSHED, IN THE AMOUNT OF
27 $25,766 (AB2000 -193)
28
29
30 OTHER ITEMS
31
32 1. ORDINANCE TO REPEAL WCC 2.22A, DEPARTMENT OF NOR -BELL
33 CARE CENTER (AB2000 -183)
34
35 Imhof reported for Finance and Administrative Services Committee and
36 moved approval.
37
38 Motion carried unanimously.
39
40 2. ORDINANCE AMENDING WCC 3.08.100, SETTING REQUIREMENTS
41 FOR COUNCIL APPROVAL OF CONTRACTS (AB2000 -184)
42
43 Imhof reported for Finance and Administrative Services Committee and
44 moved approval. This stems from Whatcom County government not being the
45 commissioner form. The executive believes he is allowed to accept the lowest bid,
46 but not award the contract. This would clarify that. Here, they have to make the
47 code the same as state law.
48
Regular County Council Meeting, 5/16/2000, Page 16
1 Dawson stated it is only for emergencies.
2
3 Imhof stated it is for declared emergencies only.
4
5 Hoag stated a declaration of emergency is made by the County Executive,
6 following that there will be considerable contracts involved with various things
7 related to that emergency. She questioned whether this policy pertains to anything
8 related to an emergency and if there is a time constriction.
9
10 Dewey Desler, Deputy Administrator, stated they looked through the
11 purchasing laws and realized there is an allowance to waive the bid requirements,
12 but no allowance to actually waive the contracting requirements, which require
13 notification of the Council and the appropriate meetings. About every three years,
14 the County Executive declares an emergency, generally regarding a flood. About
15 every other time that happens, they've instituted an emergency procedure. The
16 County has generally followed the practice where it assumes they can go ahead and
17 waive both the bid requirements and the contracting requirements. That is what
18 has happened. That is appropriate because the language of the code says it is only
19 the bid requirements. He believes the length of time would be less than two weeks.
20 They are prepared, based on the discussion earlier in the day, to pull together
21 relevant departments, such as the Prosecuting attorney, Emergency Management,
22 and Public Works, to develop some policy around how and when this ordinance
23 would be triggered during an emergency.
24
25 Hoag stated any policy that is not in the code could change.
26
27 Imhof stated the code could change.
28
29 Hoag stated the code has to be changed through the Council.
30
31 Dave Grant, Senior Civil Deputy Prosecutor, stated the term, "pursuant to"
32 and "within the scope of are limitations, not expansions, of the powers. The
33 Executive would only be able to act insofar as it relates directly to the declared
34 emergency. The reference to code section 3.08.060 is the guidance that exists in
35 the code today telling the Executive whether or not an emergency exists. That is a
36 limitation on his ability to use this.
37
38 Imhof stated that usually, the emergency is declared. The emergency is
39 withdrawn with the water recedes. It is not ongoing.
40
41 Grant stated the Executive has to have a finding that the county would suffer
42 material injury or damage by delay. What typically happens is that the Executive is
43 hamstrung to let out a contract. This request is in response to that situation. The
44 County has had one of these events every three years. During every other
45 emergency, the County has to do something. The Executive gets in touch with the
46 Council to say what he did, and the Council would have an immediate review. The
47 Executive's office wanted to build that into a written policy for future County
48 executives.
Regular County Council Meeting, 5/16/2000, Page 17
1
2 Hoag questioned whether the wording "pursuant to" a declaration of
3 emergency allows the Executive to waive procedures for anything related to an
4 emergency, once a declaration has been made. Executive Kremen has shown an
5 inclination to work with the County Council. This is for future executives. Grant
6 stated that is a legitimate issue. There is a basis upon which to worry.
7
8 Brenner moved to insert the words to option b on packet page 64, "...under
9 either Whatcom County Code 3.08.060(A) or (E). This authority shall last until the
10 next regular Council meeting."
11
12 Crawford suggested adding an additional sentence to option b on packet
13 page 64, "...under either Whatcom County Code 3.08.060(A) or (E). In these
14 circumstances, the contract shall be reviewed by the Council at its next regular
15 meeting."
16
17 Hoag stated they can't review a contract that has already been let.
18
19 Crawford stated it is appropriate to review the contracts anyway.
20
21 Jeff Monsen, Public Works Director, questioned how he would get the notice
22 out through the agenda process so he can act if it is a day before the Council
23 meeting. If it is the day before the next meeting, he didn't want to get caught
24 waiting two weeks because he doesn't have adequate public notice.
25
26 Dana Brown - Davis, Clerk of the Council, stated she only needs 24 hours
27 notice.
28
29 Hoag stated they are talking about the Executive's authority to approve these
30 contracts and to spend money. If that authority extends until the Council convenes
31 its next regular meeting, then any contracts would already be in process before the
32 next meeting is convened. They are talking about contracts after that time.
33
34 Imhof stated they've been handling emergencies for years. He questioned
35 what problem they are trying to correct. It hasn't been abused. It is in state law.
36 It is in the code, and it is a narrow focus.
37
38 Brenner stated it is state law, but most counties in the state are
39 commissioner forms of government. Whatcom County has checks and balances.
40 She supported it, but it should only be in effect until the next regular Council
41 meeting.
42
43 Grant stated the record is clear in that it reflected the intent of the Council.
44 If the prosecutor is asked down the road what this means, it will be clear.
45
46 Hoag stated it is important that they put things together as best they can.
47 Regarding intent, she is clear on hers. She requested consensus from the
48 remaining councilmembers. She questioned whether they are specifying that
Regular County Council Meeting, 5/16/2000, Page 18
1 anything that needs to be done prior to a regular council meeting is within the
2 Executive's domain, and anything thereafter is the Council's responsibilities.
3
4 Kremen suggested holding the item in committee so they can ascertain
5 whether or not the language proposed by Councilmember Brenner will satisfy the
6 intended needs of the administration, and will also make the Council feel
7 comfortable with its actions.
8
9 Brenner stated she amended her motion and moved to hold in Council.
10
11 Motion carried unanimously.
12
13 3. ORDINANCE AMENDING THE 2000 BUDGET, REQUEST #6 (AB2000-
14 186)
15
16 Imhof reported for Finance and Administrative Services Committee and
17 moved approval.
18
19 Motion carried unanimously.
20
21 4. ORDINANCE ESTABLISHING WHATCOM COUNTY CODE 2.125,
22 FORMING THE WHATCOM COUNTY UTILITIES PLANNING AND
23 ADVISORY COMMITTEE (AB2000 -177)
24
25 Brenner reported for Public Works and Capital Projects Committee and stated
26 this is held in committee.
27
28 S. ORDINANCE ADOPTING NEW WHATCOM COUNTY LAND DIVISION
29 REGULATIONS (TITLE 21), REPEALING THE EXISTING WHATCOM
30 COUNTY SUBDIVISION REGULATIONS (TITLE 21), AND MAKING
31 MINOR MODIFICATIONS TO TITLE 2 AND TITLE 20 (AB2000 -160)
32
33 Hoag reported for Planning and Development Committee and stated this was
34 held in committee.
35
36 6. JOINT RESOLUTION OF THE CITY OF BELLINGHAM, WHATCOM
37 COUNTY, AND WATER DISTRICT #10 ADOPTING THE 1999 PROGRAM
38 FOR THE LAKE WHATCOM WATERSHED (AB2000 -199)
39
40 Imhof moved to approve.
41
42 Motion carried unanimously.
43
44
45 INTRODUCTION ITEMS
46
47 Imhof moved to accept the Introduction Items.
48
Regular County Council Meeting, 5/16/2000, Page 19
1 Hoag stated they need to add a resolution creating the Lake Samish Citizens
2 Committee. Planning Committee recommended unanimously that it be introduced
3 and assigned to committee.
4
5 Motion carried unanimously.
6
7 1. ORDINANCE AMENDING WHATCOM COUNTY CODE 12.56, VICTIM
8 MEMORIAL SIGN PROGRAM (AB2000 -197)
9
10 2. ORDINANCE PROPOSING REVISIONS TO WCC 24.06 SOLID WASTE
11 RULES (AB2000 -194)
12
13 3. ORDINANCE ESTABLISHING WHATCOM COUNTY CODE 2.130,
14 CREATING THE WHATCOM COUNTY RURAL COUNTY SALES AND USE
15 TAX ADVISORY COMMITTEE (AB2000 -195)
16
17 4. ORDINANCE AMENDING THE 2000 BUDGET, REQUEST #7 (AB2000-
18 196)
19
20 S. RESOLUTION CREATEING THE LAKE SAMISH CITIZENS ADVISORY
21 COMMITTEE (AB2000 -176A)
22
23
24 OTHER BUSINESS
25
26 Hoag stated the April 17, 2000 minutes were approved at the last meeting.
27 She wanted to add language to that set of minutes. She moved to rescind the April
28 17, 2000 special Council meeting minutes.
29
30 Motion carried 5 -0 with McShane abstaining.
31
32 Hoag moved to amend the minutes to reflect the correction to page eight,
33 line five, "Brenner accepted Hoag's suggestion to add "full" before "Council" and
34 stated..."
35
36 Motion carried 5 -0 with McShane abstaining.
37
38 Brenner stated she was contacted by a gentleman who had a proposal to
39 offer the County a way to be eligible for federal grant money to build a new ferry.
40 The window for application is running out. She wants a discussion of this in the
41 next Public Works Committee. She asked to borrow time from other committees
42 because the next meeting is getting very full.
43
44 Brenner stated the farm bureau is putting on a workshop on local control.
45 She wanted to make sure that the book being used at the workshop will be kept at
46 the Council office.
47
Regular County Council Meeting, 5/16/2000, Page 20
1 McShane stated the Natural Resource Committee did not have a quorum and
2 did not meet officially, but the agenda items were discussed with Councilmember
3 Dawson and the presenters. One presentation was by Steve Hood regarding the
4 Nooksack River total maximum daily load (TMDL) process that is going on. One
5 thing brought up during the meeting was putting signs on some of the creeks so
6 people don't swim in and eat fish from creeks that are contaminated.
7
8 McShane stated the other issue discussed in committee was on the Drayton
9 Harbor Shellfish Protection District. The work plan is in the Council packet. He will
10 bring forward an ordinance approving the plan, but he is waiting for feedback from
11 staff. It will go through the Water Resources Division. They talked about signage
12 regarding that issue as well. People are harvesting and eating oysters in Drayton
13 Harbor, even though they shouldn't.
14
15 Dawson stated the Council, except for Councilmember McShane, is meeting
16 with Dave Grant, Senior Civil Deputy Prosecutor, next Tuesday at 9:00 a.m.
17
18
19 REPORTS AND OTHER ITEMS FROM COUNCILMEMBERS
20
21 Hoag stated the Planning and Development Committee had a presentation on
22 electromagnetic fields (EMF). Executive Kremen hosted a town hall meeting on May
23 10, which included the director of the Northwest Power Planning Council, a
24 representative from Bonneville Power Administration, someone from the Northwest
25 Energy Coalition, the vice - president of Puget Sound Energy, Public Utility District
26 #1 Manager Tom Anderson, and the representative from Sumas Energy 2. It was a
27 very productive, enlightening meeting. She thanked the Executive for hosting the
28 meeting.
29
30 Hoag stated the Energy Facility Site Evaluation Council (EFSEC) has
31 scheduled an adjudicative hearing to begin right after the next Board of Health
32 meeting. The Board of Health meeting will need to end promptly at 2:00 p.m.
33
34 Brenner stated the Human Rights Task Force annual banquet is on Sunday
35 May 21 at the Bellingham Cruise Terminal. It will present awards to kids in
36 Ferndale who worked on the anti -hate crime programs resulting from the crimes
37 that happened in Ferndale. The kids got national news attention. They should be
38 honored.
39
40 Brenner also stated that the Black Mountain Forestry Center is going to open
41 on May 27. They are going to have the World of Wood Festival at the same time.
42
43 Dawson stated it begins at 10:00 a.m.
44
45 Brenner stated that several of the councilmembers and the County Executive
46 have been invited to the Lummi Tribal School to deal with fish issues.
47
Regular County Council Meeting, 5/16/2000, Page 21
1
2
3
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6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Crawford stated he attended the formation meeting of the Tweed Twenty
Neighborhood Association. There were 55 people attending. Of that, 50 people
voted. Forty -seven voted for forming an association and three voted against. They
have a pro bono attorney to file their papers as a corporation. They needed $75 to
incorporate, and they collected over $100. This Council will hear some of their
concerns. They have legitimate concerns.
ADJOURN
The meeting adjourned at 9:30 p.m.
Jill Nixon, Minutes Transcription
These minutes were approved by Council on June 13 , 2000.
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Marlene Dawson, Council Chair
Regular County Council Meeting, 5/16/2000, Page 22