HomeMy WebLinkAboutPlanning December 12 20001
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WHATCOM COUNTY COUNCIL
Planning and Development Committee
December 12, 2000
The meeting was called to order at 3:05 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. ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY ZONING
ORDINANCE, TITLE 20, CHAPTER 20.80, TO INCLUDE ACCUMULATIVE
IMPERVIOUS SURFACE THRESHOLDS FOR STORMWATER SPECIAL
DISTRICT ON -SITE STORMWATER QUALITY AND QUANTITY FACILITY
REQUIREMENTS, AND TO PROVIDE ADDITIONAL CLARIFYING
LANGUAGE FOR ADMINISTRATIVE PURPOSES (AB2000 -390)
Bruce Mills, Assistant Director of Engineering, stated staff was given direction
to provide limits and practical suggestions on how to put in threshold limits so they
are not doing an "all or nothing" thing in stormwater areas. Staff met with the
Technical Advisory Committee to develop this set of thresholds. It was run through
the Planning Commission, which voted unanimously to bring them forward to the
County Council. The guts of it begin on packet page 200. He handed out
suggested amendments. He suggested amending section 20.80.634(2)(x),
"...Drayton harbor watershed, except those portions zoned R5A, R10A, and
Agriculture." In the Drayton Harbor watershed, there is 83 percent large zoning.
The controls they are putting forward only apply to acreage that is five acres and
less. However, in seeing the applications for permits come in, they are getting
small lots scattered within the large agricultural areas. It doesn't seem an
appropriate place to ask them to do detention when non - impervious areas surround
them. Therefore, the amendment would make the thresholds for the urban areas
of the watershed.
Hoag questioned whether they are talking only about the Urban Residential,
four units per acre (UR -4) areas. She questioned whether there are loopholes to
allow much more than one new house in Rural one house per five acres (R5A)
zoning. Mills stated only accessory dwellings are allowed.
Sylvia Goodwin, Planning Division Manager, stated there are several large,
non - conforming plats that are on Pipeline Road, in the vicinity of Harvey Road.
There are a bunch of plats sized 25 feet wide by 100 feet long. Some of them are
consolidated. Under the new consolidation ordinance, most of them are now
unconsolidated. It could create a problem. They are surrounding by a large
Planning and Development Committee, 12/12/2000, Page 1
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acreage tract so the water running off the site will travel through open fields before
it gets anywhere.
Hoag questioned whether this is an area of the aquifer recharge. Goodwin
stated it is.
Hoag stated it is an area where they would want to limit impervious surfaces.
Goodwin stated this ordinance doesn't limit impervious surfaces. It just requires
infiltration and treatment. The impervious surface limits are limited in the Lake
Whatcom overlay district, and only apply to areas in the Lake Whatcom watershed.
One could still pave an entire lot, but would have to do some kind of treatment as
runoff leaves the lot. She was not concerned about that area, but wanted to make
the Council aware of them. There are many open, pervious surfaces in that area
that would serve to infiltrate the stormwater as it runs off the site.
Hoag asked what the infiltration requirement is. Goodwin stated there are no
requirements for a regular single - family house on a small lot. They are exempt,
other than they have to do some erosion control during construction.
Hoag asked what would be different for those small plats if they remove the
overlay. Goodwin stated all of those lots have to do best management practices for
stormwater treatment if they are smaller than 500 square feet. If they are larger
than 2,500 square feet, they have to look at retention. If they are bigger than
5,000 square feet, they have to do engineering per this ordinance. Mr. Mills is
saying that an individual house surrounded by acreage may not require stormwater
control because it runs into a neighboring field.
Hoag stated she was concerned about the platted lots. She questioned
whether they would currently be required to do certain things. Goodwin stated
they are.
McShane stated they need to think about whether it makes practical sense to
have this requirement for that particular area, given its distance from Drayton
Harbor. He was comfortable leaving those lots out from this provision, and leaving
the language as it is suggested.
Hoag stated there are a number of creeks that run through there and end up
in the harbor. They often deal with accumulation of the different things that
happen when a place develops. That area sits right on top of the critical aquifer
recharge zone. She suggested adding more language to section 20.80.634(2)(x),
"...Drayton harbor watershed, except those portions zoned R5A, R10A, and
Agriculture, except subdivisions platted for ten or more homes."
Mills stated any new plats are going to fall under the existing regulations and
would have to do treatment and detention. These regulations are to address single
family homes.
McShane questioned what size of lots or group of lots Councilmember Hoag
would want to comply with this ordinance.
Planning and Development Committee, 12/12/2000, Page 2
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Hoag stated she wanted to apply the regulations to those areas platted for
ten or more homes. Then, they are talking about something that could have a
significant impact.
Crawford questioned why the Drayton Harbor area comes under the Lake
Whatcom regulations.
McShane stated that one could describe Drayton Harbor as a very sensitive
environment. It is confined. Its circulation isn't very good. It is shallow and
sensitive to sediment and nutrient loading.
Goodwin stated that when the Drayton Harbor area, between Lincoln and the
harbor, wanted to become a short -term planning area, there was concern that they
would be kept at five -acre lots if they went from UR -4 without sewer. If they went
to UR -4 and got sewer, their density would become four units per acre, and there is
no stormwater management system for new subdivisions. The intent of the County
Council was to deal with the UR -4 area that will come before the Council if the area
gets sewer. The County Council expanded the overlay to include the entire Drayton
Harbor area, when the real issue was the area between Lincoln Road and the
harbor.
Hoag stated a lot of that area was wetlands. Once it is zoned, they are
looking at the potential for development. The harbor has the potential for shellfish
harvesting. There is a health concern with that. Also, a number of people testified
that, when development was allowed in the area, the stormwater results caused
septic systems to fail. In particular, the development around Semiahmoo caused
failure of septic systems of the older residences. A number of people in that area
requested protection from stormwater due to future development. The map
surprised her. They adopted the concept. A more appropriate number of homes
would be the same as the subdivisions, which is anything five or greater being a
long plat, instead of ten. Goodwin stated they might also want to deal with the
concept of density. Four lots on a hundred acres may not be an issue. However, at
an urban density, there will be infiltration if the lots are big enough within an acre.
Mills suggested language in section 20.80.634(2)(x), "...Drayton harbor
watershed, except those portions zoned R5A, R10A, and Agriculture that are not
already platted into lots of less than (insert acreage) acres in size."
The committee concurred with Mills' suggestion.
McShane moved to amend section 20.80.634(2)(x), "...Drayton Harbor
watershed, except those portions zoned R5A, R10A, and Agriculture that are not
already platted into lots of less than one acre in size."
Goodwin stated this is a change from what the Planning Commission
recommended and may need a public hearing. Excluding a major portion of
Drayton Harbor is a substantial enough change.
Planning and Development Committee, 12/12/2000, Page 3
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Crawford questioned whether development at Semiahmoo caused some
septic system failure during stormwater runoff events. Goodwin stated a few
people in Drayton Harbor have that theory.
Crawford questioned whether they are talking about an urban growth area
(UGA) that would have public sewer. Goodwin stated that was correct.
Hoag stated they would have public sewer only if it could be done. It is still a
provision.
Crawford stated he didn't know how the quality of the water coming in the
runoff would affect the sewer system. He was confused
McShane stated this is being brought forward because the previous criteria
were very strict. They have two special district areas for stormwater, so they want
to have a little bit of protection and criteria when someone creates impervious
surfaces. It is disconnected from sewer. With stormwater runoff from around Lake
Whatcom, there are water quality and water quantity issues and impacts on the
streams. This area falls under the same category. They don't want to target
people who are building a house on a five -acre lot. It is really for areas of five -acre
density. Goodwin stated that without sewer, many of those lots aren't developable.
They are just paper. Those lots don't show on the plat map. This ordinance
probably won't be adopted at the evening change because it is a change from the
Planning Commission's recommendation, and will need a public hearing.
Crawford stated he would abstain from voting until they have the hearing.
Motion to amend carried 2 -0 with Crawford abstaining.
Mills spoke on the chart on packet page 200. Staff came up with different
levels based on different types of impervious surfaces. There are two types of
impervious surfaces. The polluting impervious surface would include parking lots,
paved driveways, and areas where oil can drip from cars and accumulate. Non-
polluting impervious surfaces include sidewalks and most roofs. The water that
comes off of them is clean. Staff made a distinction between those different types
of surfaces. One has to detain runoff from the clean surfaces, but not treat them.
One has to treat and detain runoff from polluting surfaces.
McShane stated there is a movement to change stormwater events to deal
with longer, back -to -back storms. The concept is to go from a 24 hour, 25 -year
event to a one week, 25 -year event. They tend to have many storms in a series,
which is why they have major runoff problems. It has been a flaw in Puget Sound -
area stormwater design. Mills stated the state Department of Ecology (DOE) is
revising the state standards. Section 20.80.636, note three, looks at a six -month
frequency, 24 -hour storm. He suggested a language change under section
20.80.636, note one, "1. Total Accumulative = pfe- existing + new..."
Planning and Development Committee, 12/12/2000, Page 4
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McShane moved to amend language under note one in section 20.80.636, 111.
Total Accumulative = pfe- existing + new..."
Motion carried unanimously.
Mills suggested amending language in section 20.80.636, under note six,
"...to meet the requirements of 20.80.635, including retrofitting of existing
developed sites. For efficient treatment...." People coming in for permits now are
questioning what is considered retrofitting and what is considered existing. This
added language would clear up confusion.
McShane moved to amend the last sentence in section 20.80.636, after the
notes, "...to meet the requirements of 20.80.635, including retrofitting of existing
developed sites. For efficient treatment..."
Hoag questioned whether the recommendation adds an additional
requirement or picks up language from elsewhere. Mills stated the language came
from his staff. They want to make it clear that it is also for retrofitting existing
sites. They are not looking only at vacant property. Staff is saying that one has to
retrofit his or her site if he or she goes over the thresholds listed.
Hoag stated it was a requirement they already had, but the language wasn't
clear. She would support the recommendation.
Motion carried unanimously.
Goodwin stated staff is anxious to adopt this ordinance because the Technical
Advisory Committee is not going to write the standards until it knows what the
thresholds are. There is also a group in Lake Samish that is trying to decide
whether or not this should apply to Lake Samish. She suggested adopting the
ordinance without the addition of the Drayton Harbor language. All the additional
things are just minor clarifications. Split the Drayton Harbor language into a
second ordinance, which Senior Civil Deputy Prosecutor Karen Frakes advised as
possible. They could have a public hearing just on the portion dealing with
removing Drayton Harbor during the next meeting.
McShane agreed.
Crawford asked how the regulatory environment on how they deal with
problem areas affects the analysis of whether or not an area has a problem. He
questioned whether the Lake Samish group is waiting for the County Council to see
what it is going to do before determining if they have a problem. Goodwin stated it
is difficult to apply unwritten regulations on stormwater to know whether or not
they want to have these unwritten policies apply to their property. They are
waiting to see what the TAC comes up with and the thresholds before deciding
whether the regulations are right for Lake Samish or overkill. Regarding Lake
Whatcom, there are people coming to the counter asking what to do. Staff is
improvising because the standards are not adopted. Everyone wants to see
Planning and Development Committee, 12/12/2000, Page 5
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something adopted that is more clear so the citizens coming to the counter know
exactly what they need to do. There is not another Council meeting until January,
and they are thinking about postponing it for a public hearing. It would be better to
deal with the Drayton Harbor issue in January, and deal with what they can at the
evening's meeting. Staff can send it on to the Technical Advisory Committee over
the holidays.
Hoag suggested checking with the Clerk of the Council and legal counsel to
see if it is a significant enough change to require a public hearing. If it's not, they
can do the entire thing at the evening's meeting.
McShane stated it is a significant change.
Hoag stated the question is whether the amendment makes a substantive
change to the ordinance. The amendment would change the applicable area from a
very large area to a tighter area. That is a substantive change. The rest of the
amendments are clarification.
Hoag stated the intent is the same, which is to address urbanized areas. She
asked for a second opinion on the necessity of a public hearing. Goodwin stated
she would check.
McShane moved to recommend approval without the amendments just
made.
Hoag suggested a friendly amendment that approval of the ordinance un-
amended is contingent upon whether or not they need to separate the ordinance
into two ordinances.
Crawford asked for clarification on language on packet page 198 in section
20.80.634(2)(x). He questioned whether the inclusion of the Drayton Harbor
watershed had been subject to a public hearing. Goodwin stated Drayton Harbor
was added a year ago, so there was a public hearing. The only thing not subject to
the public hearing is the language that excepts the areas zoned R5, R10, and
Agricultural. That is the question. Karen Frakes stated it wasn't clear about
whether this would require a public hearing because they are making an area that
was already adopted smaller.
Crawford questioned whether Drayton Harbor was added because of the
short -term planning area and was not subject to a hearing. Goodwin stated the
County Council had several public hearings on the Drayton Harbor short -term
planning issue.
Crawford questioned whether there was a hearing on the stormwater special
district in that area. Goodwin stated there was. It was added as a condition.
There was a separate public hearing on that issue. There is already a provision that
it only applies to lots smaller than five acres, so they've had a public hearing on
that.
Planning and Development Committee, 12/12/2000, Page 6
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Crawford stated he would agree with Councilmember Hoag's friendly
amendment.
McShane accepted the friendly amendment.
The committee concurred on the motion.
Hoag questioned the staff's reason for changing language in section
20.80.633 from "to ensure protection of to "to protect."
(Clerk's Note: End of tape one, side A.)
Hoag continued to state that the language almost sounds like they are
requiring the person to take care of the County drainage facility, even if it has
nothing to do with their development. She suggested wording similar to that in
section 20.80.632 or reinstate the previous language.
Hoag moved to amend 20.80.633 regarding large development stormwater
controls, "...neighboring property and water quality from stormwater effects caused
by development. No permit..."
Motion carried unanimously.
Goodwin stated the staff consensus was that the ordinance would need a
public hearing. The Planning Enabling Act doesn't specify that a change has to be
substantial. It just says that the Council must adopt the Planning Commission
recommendation or have a public hearing. They've interpreted it in the past to
mean that a wording change with no substantive effect wouldn't require a public
hearing.
Hoag questioned what requirement was changed with the language change
at the beginning of section 20.80.633, and the difference between "an engineered
stormwater design report" and "a preliminary stormwater proposal." Mills stated
the suggestion came from staff. It is required in other areas. Consultants are used
to the term "stormwater design report." It is a clarification to make it more
consistent with what they are used to.
Hoag asked if this is what the County requires already. Mills stated this is
what they require when people do plats. What they are saying now is that, for
single - family homes with more than 5,000 square feet of impervious surfaces, there
needs to be an engineered report.
Goodwin stated that currently, with no standards at all, they've had no
choice but to require engineered stormwater reports from everyone because there
is nothing that exempts small projects by requiring best management practices.
McShane stated this item would be scheduled for a public hearing.
Planning and Development Committee, 12/12/2000, Page 7
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McShane moved to approve the ordinance without the changes and
recommended amendments, and to bring those amendments forward at the next
Council meeting.
Motion carried unanimously.
2. ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY ZONING
ORDINANCE, TITLE 20, CHAPTER 20.80.730, LAND CLEARING, AND
20.97, DEFINITIONS (AB2000 -391)
Kraig Olason, Senior Planner, stated the ordinance tries to comply with
legislation established in a 1997 session. It looks at two things. One thing is the
removal option of a moratorium if one is placed on property based on a violation of
forest practices. The other it's the assumption of the responsibilities for class IV
forest practices conversions by the County for the jurisdiction from the state
Department of Natural Resources (DNR). The response to the ordinance from DNR
was that the County did not meet the requirements. Based on the need to deal
with the moratorium issue, it is scheduled before the Council with two options.
Option one was the same proposal that the Planning Commission forwarded with
references to the County taking over class IV conversions removed. The
supplemental staff report describes the other changes that were suggested for
option one. Option two is just the moratorium lifting process.
In addition, Exhibit A -1 includes the DNR responses to the County's updated
version of the forest practice proposal. Staff submitted option one to DNR for
review. DNR suggested specific language that includes more forest practice jargon
to be more in line with what the Forest Practice Act says specifically. Staff
recommends those suggested changes. That suggested DNR language wouldn't be
any different for either option. Staff recommends that the DNR language be
substituted for staff language in the appropriate spots.
There are two sets of findings, depending on which option is chosen.
The County still will not be in compliance with the requirement to take over
the forest conversions after all of this. If they want to talk about policy direction on
when they should get into compliance with DNR's rules, they should do that during
another discussion time. There are some instances where they are interested in
getting the moratorium language adopted so they can evaluate situations where
people are trying to get in compliance and have a moratorium removed. It is a real
world time consideration for some people. The staff recommendation is to adopt
option one beginning on packet page 225. The County would still not be in
compliance with DNR because if DNR's requirements to comply with their
Endangered Species Act (ESA) agreements with federal agencies and the new rules.
Hoag stated DNR's comments address removal of the moratorium on packet
page 248. When she read the language, it sounded like the moratorium wasn't
really a moratorium because it could be lifted prior to the six years. Olason stated
Planning and Development Committee, 12/12/2000, Page 8
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that originally the moratorium was an option as being a hammer. In 1997, the Act
said the moratorium had to be initiated immediately if there was a violation. It also
said that one has to have an option for removal. When the County developed its
proposal, it looked at a compliance -based effort. The person who violates had to
make sure he or she corrected everything done wrong, pay any associated fines,
and be up -to -date on the taxes. They didn't decide with whether or not the
moratorium should come off at all, depending on the circumstances in the issue of
flagrant violation or purposeful circumvention. Going through the moratorium
lifting process is not going to be an easy process, but is still not quite as harsh as
the moratorium.
Hoag agreed. The language that DNR recommended complies with the law in
that it sets up the process to remove six -year moratoriums under certain
conditions. The regulation does not say that someone can have their moratorium
lifted if they mitigate the damage. Olason there is a public hearing process in front
of the Hearing Examiner. The applicant has to meet criteria. That happens when
there is a real violation. The language Councilmember Hoag referred to is when
there are administrative goof -ups.
McShane moved to pursue option one, and that the discussion regarding
lifting the moratorium be restricted to option one.
Hoag asked for staff's reasoning for recommending option one. Olason
stated the primary difference between the two options is section (5)(c) on packet
page 251, which calls out the forest conversion permit. It says that any clearing
activity following the harvest and removal of timber would have additional
requirements. The purpose of the additional requirements is to verify that a
conversion plan exists or, if there is no conversion plan, to minimize the disruption
that occurs during the harvest. They limit road building and site grubbing if there is
no plan for future use. It helps staff combine its review activity with DNR. DNR is
going to manage the program. Option two deals strictly with removal of the
moratorium.
Crawford asked for the definition of conversion. Olason stated part of the
proposal is to add definitions.
Roland Middleton, Land Use Manager, stated the definition is on packet page
258.
Crawford asked the legislature's intent to remove moratoriums. Olason
stated the legislature changed the language, which used to say that moratorium
imposition was at the County's discretion. At that point, there was no requirement
to have a lifting mechanism. When the legislature changed that language, it
required the County to automatically apply the moratorium if there is a violation
and create a lifting mechanism.
Planning and Development Committee, 12/12/2000, Page 9
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Crawford stated a moratorium is a punishment. It is a way for the
enforcement agency to have some teeth in enforcing what it does. Olason stated
the purpose of the moratorium is a sanction.
Crawford questioned whether the legislature requires a way to lift criminal
penalties for crimes. He didn't understand the reason for requiring a lifting
mechanism.
Middleton stated he had been involved this since the beginning. In the past,
the County placed only a few moratoriums on properties that were specifically
through an enforcement action. The violator would be given a correction notice,
stop work order, fines, and then the moratorium. Under the old state regulations,
the six -year moratorium allowed a single - family residence, but nothing else. That
was typical throughout the state. There was difficulty in knowing when to apply
and not to apply the moratorium. The moratorium was the biggest hammer the
County had to get someone into compliance.
Since 1997, it was an automatic moratorium. They could put someone on
death row and then determine whether or not the punishment would be lifted.
Previously, the same person who invoked the six -year moratorium could lift the six -
year moratorium, which would be the enforcement officer, the Director, or the
Executive.
Crawford questioned why it was called a six -year moratorium instead of just
a moratorium. Middleton stated that was the definition established by the state,
and the County had the authority to issue it for six years. Two or three have gone
through their six years, mowed down their alders, and built their projects anyway.
However, if someone is in the middle of a project and a moratorium is applied, the
owner is not going to want to pay thousands of dollars in interest every month.
People come into compliance very quickly at that point. That option was gone in
1997. Now it is just automatic. Now, they don't have a mechanism to lift it.
McShane stated there are no sentencing guidelines for implementing it or
lifting it. Middleton stated he did not advocate lifting a moratorium simply by
making the application. The criteria on packet page 240 make findings and
conditions. If the applicant doesn't do the mitigation and meet the criteria, the
moratorium stays on. Even if the moratorium stays on, the County still has to go
through collections and the process to get the fines. In six years, the owner can
reapply without doing any restoration.
Hoag referenced section 20.80.730(4)(x) on packet page 225. In the Lake
Whatcom watershed, they did something about vegetative clearing on different
slopes. She questioned how this section would affect what they did for Lake
Whatcom.
Sylvia Goodwin, Planning Division Manager, stated the Lake Whatcom
regulations apply to land that is not subject to the Forest Practices Act, and this
ordinance applies to land clearing that is subject to the Forest Practices Act.
Planning and Development Committee, 12/12/2000, Page 10
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Olason stated there is a reference back to special management areas.
Hoag suggested adding language to section 20.80.730(4)(x), "...outside
critical areas and associated buffers and are outside the Lake Whatcom watershed."
The County Council set specific limits that she wanted observed, whether it is in a
forest practices area or a residential area. The steeper the slope, the greater the
chance of erosion and the more review is needed. She wanted the same
incremental requirements in this ordinance. She suggested that the limits be
referenced.
Middleton stated there is an overlay on Lake Whatcom.
Hoag stated she wanted them references so it is clear that they would need
to go back to the overlay. Goodwin stated the incremental requirements were not
part of the Lake Whatcom overlay zone, but was a special Lake Whatcom watershed
section in section 20.80.730 regarding Land Clearing. The language requires
County review and approval for all land clearing activities associated with fill and
grade, and set up the threshold. That just says where the County review and
approval is required.
Middleton referenced packet page 232. The amendment in option one
amends the front section. As they go through, there are special management area
requirements that are different than the rest of the County.
Hoag suggested that the requirements be referenced in that section.
Olason stated staff took the existing code and inserted the modifications. It
is a matter of where one looks.
Hoag suggested adding language to section 20.80.730(4)(x), "...outside
critical areas, associated buffers, or special management areas." She so
moved.
Motion carried unanimously.
Hoag questioned whether they need to reference the special management
areas in subsection (4)(b). Middleton stated they do. The way it reads, it is all a
part of the same section of the code. Even if they don't refer it, it's all there.
Hoag referenced subsection (a)(ii)(A) on packet page 228. She questioned
the effect that has on vesting. If review is terminated, it would end the vesting.
McShane stated Mr. Bode' will present alternate language.
Olason stated the remaining language in that section describes that the
suspension is not like having a violation where everything is put on hold, including
the clock. If one has a performance requirement deadline that is not met, the
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applicant loses the permit approval because he or she did not comply with the
requirement. If it is suspended, the person can't comply, but the clock continues.
If the person doesn't get the moratorium addressed and make the needed
performance requirements of the permits, then he or she could be out of luck.
Hoag stated that her concern was that, with the language "suspend," it
almost sounded as if the clock was being stopped. The following language said it
doesn't constitute a stay of performance timelines.
McShane asked for comments from staff regarding Mr. Bode's comments.
Hoag stated she had a small housekeeping item on packet pages 228 and
229. She asked that subsections (a) and (b) be made more noticeable.
McShane asked Mr. Olason to respond to Mr. Bode's letter.
Olason stated there were two letters from Mr. Bode'. One letter was dated
November 30, 2000 and the other was dated December 4, 2000. He would address
the December letter. The proposal is missing the question of the circumvention of
the rules and the consequences of that circumvention. The question of suspending,
terminating, or denying all permits is identified in paragraph three of the December
letter. Staff doesn't agree with the interpretation that those applications in
process, and are then suspended, should be automatically denied because of a
violation. The staff's opinion is that any of those applications that were submitted
for properties with six -year moratoriums would automatically be refused
acceptance. Those that are in the process of a project would be suspended and, at
such time the moratorium issues are resolved, the moratorium would be removed
and the processing of those permits would continue.
(Clerk's Note: End of tape one, side 8.)
Olason continued to state that if they want to look back at the language,
referenced in the Revised Code of Washington (RCW) 76.09.060(3)(b)(i), packet
page 290, it says the entity shall deny any or all applications for permits and
approvals related to non - forestry uses of land subject to the application. Staff's
interpretation is that those properties with a moratorium are not eligible for
application. Staff suggests that the suspension is a more appropriate technique to
deal with those activities that are halted due to the imposition of a moratorium
after their applications have been submitted and processing has started.
Hoag stated the suspension of an application is an approval. However, the
RCW does not allow approvals in the form of a suspension. Olason stated the
County tries to have a little discretion on the implementation of the moratorium by
identifying correctable items that are minor. There is a difference between a minor
violation and a major, flagrant violation. For example, a PUD project that requires
many permits may have a significant time investment. An outright denial of those,
even if they were submitted under the rules of the platting requirements, is a
severe sanction and interpretation of this code.
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Hoag asked what a person has to do to have a moratorium applied.
McShane asked to hear the rest of staff's comments.
Olason stated the other comment goes back to the two -page table that was
submitted with the letter. Staff referenced the process that the Hearing Examiner
goes through to be standard. It would be easier for staff to administer. Staff
supports maintaining that original language.
On the second page, subsection (b)(ii)(A), the comments proposed are good
additions. The County is not taking over the conversion process yet. This refers
back to additional Washington Administrative Code (WAC) rules for road building
and timber harvesting. Staff agrees with Mr. Bode's recommendation.
Regarding subsection (b)(ii)(B), staff believes that the suggested language is
too subjective and should have further criteria, or keep staff's originally
recommended language.
Regarding section (b)(ii)(G), the item has merit and staff supports the idea.
It provides an opportunity for an evaluation of the sincerity of the violator.
McShane questioned whether the Hearing Examiner can take into
consideration the history of other sites.
Middleton stated it depends on if it is on point with what the Hearing
Examiner discusses. It is quasi - judicial, so there are no rules of evidence. Staff
will bring past issues or lack of compliance in other areas to the Hearing Examiner.
It's up to the Hearing Examiner, who works for the County Council.
Olason stated the final comment is to add the additional subsection (b)(ii)(G)
to the mix.
McShane questioned whether staff believes that the suggestion of (b)(ii)(B)
is a good idea that should not be so subjective. Olason stated it would have to be
further defined as to what staff needs for direction.
Jeff Bode, 1207 Chuckanut Drive, stated Mr. Olason continually refers to this
as limited to the lifting of the moratorium. They've talked about how the
moratorium gets imposed. Most of this is laid out in the legislative history of it. A
long time ago there was a problem that the legislature came to recognize in 1997,
that land in rural areas was being converted illegally without permits and in
violation of the rules. They decided first to create the moratorium as a punishment.
By 1997, the legislature changed that. The testimony provided to the legislature
was bipartisan. The logging industry was saying that the little 20 -acre tracts were
being cut, and giving the industry a bad name when they are not even in the
business of development. The environmentalists were saying that the repeat
violators have to be hammered. It was clear that there was a need to crack down
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on the illegal conversions. The consensus language is what they wound up with. It
says that the County shall deny any and all permits or approvals for six years when
there is a violation. Staff is correct that it had some discretion before the change
was made. The legislature took that tool away from them, and they are trying to
get a piece of it back from the County Council. The County Council doesn't have
the authority to give it to the staff. The legislature has taken it away. The relief to
be had by the staff is in the state legislature. That is why he recommended that
the language on the imposition of the moratorium read "shall deny." He may be
wrong about the need for a clarification on the timelines. Staff said that it doesn't
change any timelines. It wouldn't hurt to leave it in.
His idea for public notice, his second comment, relates to the unusual
situation being created here. This is one of a very few places in state law where
the state is going to take away the building industry's right to build for six years
unless a good case is made in a public hearing. The circumstance is consistent with
the legislative intent to have a better - than -usual notice of the public hearing. Go
into a newspaper in the vicinity of the property for two days. Other counties
require more public notice than Whatcom County. It is a very value -laden decision
that the Council would have to make.
Regarding subsection (b)(ii)(B), he could come up with something that goes
at more specific language that the staff wants. There was another issue that came
up regarding imposing the moratorium. There is a question about the filing fee. If
an applicant pays a filing fee, and then has a moratorium applied to his or her
property that takes away the filing fee, it would seem unjust. He didn't think the
legislature intended to have a monetary penalty. He questioned whether it was
necessary to make a person pay a huge filing fee twice. He suggested that a
special provision be made so the staff could waive the fee. It would take the bite
out of denying permits for six years.
Hoag stated those fees are used to cover the cost of processing the permits.
She questioned whether there is some way to delineate that the same proposal
begin at the same manner and the staff can begin at the point it left off. If the
project comes back six years later completely different, the staff will have to spend
a bunch of work on it again. She wouldn't want to see the filing fee waived. If it is
clear on under which circumstances a waiver could be considered, then it keeps the
staff and Hearing Examiner from being accused of being arbitrary and capricious.
Bode' suggested no substantial changes in the law, and only take evidence on
whether the changes were substantial.
Brenner stated that at some point, the County considers an application
vested. She was concerned about the legal ramifications rather than what is or is
not appropriate. She questioned whether there is a point in which an application is
officially complete and considered vested. Bode' stated he has a different
understanding of what approval means. The legislature referred to things that are
not called permits, but are called approvals. The words in the sentence to
concentrate on are "any or all." The language says that the jurisdiction shall deny
any or all permits or approvals.
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Brenner stated it doesn't say permits or approvals. It says applications. She
questioned whether it would require denial if the application is already in, complete,
and vested. Bode' stated the requirement is that they shall be denied. Once
denied, there are no vested rights. If the application is suspended, then there is a
question of vested rights. It is not clear and would lead to litigation.
Middleton stated the question is what happens to the application if there is a
moratorium during the processing. The application is vested when it is applied for,
the County takes the money in, and it's determined to be a complete application.
One is vested by County definition at that point.
Hoag stated it doesn't mean there can't be a moratorium on it.
Middleton stated the real question is whether the County officially denies the
permit, which means it goes away and the applicant would have to reapply, or
suspends the application, which means the County hangs onto it and sits it on a
shelf for six years.
Bode' stated the staff would have two sets of ordinances to administer.
There would be six -year old ordinance to administer for applications recently
released from a moratorium.
Middleton stated there are dozens of projects that are six years old or more.
Bode' stated someone mentioned the idea of public projects that might come
in and get stuck with a moratorium. There is no exception in what is being
proposed for those kinds of things, but the Growth Management Act takes care of
it. It says the County can't deny essential capital facilities.
Middleton stated it has to be an essential public facility.
3. ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY ZONING
ORDINANCE, TITLE 20, CHAPTER 20.89, TO CLARIFY THE LANGUAGE
OF THE TRANSFER OF DEVELOPMENT RIGHTS (TDR) PROGRAM FOR
ADMINISTRATIVE PURPOSES, TO INCLUDE ADDITIONAL PROGRAM
INCENTIVES, AND TO PROVIDE NEW MECHANISMS FOR
DESIGNATING ADDITIONAL TDR RECEIVING AREAS (AB2000 -407)
This item was not discussed.
4. CONSIDERATION OF HEARING EXAMINER'S RECOMMENDED
APPROVAL OF A PLANNED UNIT DEVELOPMENT, FILED BY ALLIANCE
PROPERTIES INCORPORATED FOR "WILD ROSE HILLS" (PUD00 -0002
AND LSS00- 0003)(AB2000 -432)
This item was withdrawn.
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COMMITTEE DISCUSSION
1. DISCUSSION AND SCHEDULING OF SPECIAL PLANNING AND
DEVELOPMENT COMMITTEE WORK SESSIONS (AB2000 -017)
McShane stated this is a complicated issue. Next year, they should think
about scheduling committee meetings at a better time. There are a number of
things they need to complete. He suggested meeting on December 19 for as long
as possible.
Crawford agreed to meet on December 19.
Hoag stated that in the past the Planning and Development Committee had
to wait to work on things from the Planning Commission until May or June. They've
changed the process so it will not occur that way next year. They will be able to
get issues as soon as the Planning Commission is done with them. Right now, with
the holiday season, she asked to be able to catch up at the beginning of 2001.
Typically, the stuff coming from the Planning Commission has been lighter at that
time. There is nothing that is so urgent that it can't wait until January.
Goodwin stated that, with the beginning of the year coming, there may be
new members on the Planning and Development Committee, so they may not want
to have things half done. There is generally no committee meeting during the first
meeting date in January.
McShane stated some people are getting anxious about things before the
committee in terms of timeliness.
Hoag suggested sticking to one issue until it is done, rather than picking up a
number of issues. She preferred that the committee be able to finish an item
before moving on to another item.
Crawford suggested meeting at noon or 11:00 a.m. on December 19.
Hoag asked to please not meet the next week.
McShane stated they would schedule the meeting at 11:00 a.m. on Tuesday,
December 19. The first thing to discuss would be the land clearing ordinance.
Crawford asked if there was a notification problem.
Goodwin stated there was discussion about putting the agricultural items on
the agenda. If that is the case, they need to notify the agricultural committee, and
the time is getting tight.
McShane stated that might not be something they should schedule because
Councilmember Hoag cannot be present.
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issue.
Goodwin suggested discussing the transfer of development rights (TDR)
McShane agreed.
ADJOURN
The meeting adjourned at 5:10 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, 12/12/2000, Page 17