HomeMy WebLinkAboutPlanning November 14 20001
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WHATCOM COUNTY COUNCIL
Planning and Development Committee
November 14, 2000
The meeting was called to order at 3:00 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. CONSIDERATION OF HEARING EXAMINER'S RECOMMENDED
APPROVAL OF A PLANNED UNIT DEVELOPMENT, FILED BY DOUG
CAMPBELL FOR " "WEST CORDATA GREEN" (PUD90 -0002 AND BSP94-
0005) (AB00 -379)
Roland Middleton, Land Use Manager, stated this item has a long history. It
is simply a reconfiguration of a previously approved PUD. There were 19 conditions
recommended by the Hearing Examiner.
McShane moved to recommend approval.
Crawford asked to hear from the applicant.
Jack Swanson, attorney, 1900 Dupont Street, stated he was satisfied with
the conditions set forth by the Hearing Examiner. It is an amendment of a previous
project.
Motion carried 2 -0 with Hoag abstained.
McShane stated he would discuss the Nooksack Tribe issue at the end of the
meeting. He has a contract with someone who may do some of the work, and
should abstain.
COMMITTEE DISCUSSION
1. ORDINANCE ADOPTING NEW WHATCOM COUNTY LAND DIVISION
REGULATIONS (TITLE 21), REPEALING THE EXISTING WHATCOM
COUNTY SUBDIVISION REGULATIONS (TITLE 21), AND MAKING
MINOR MODIFICATIONS TO TITLE 2 AND TITLE 20 (AB2000 -160)
McShane stated he received additional information from staff regarding
sewer. There were also suggestions on the exempt well issue. Mr. Aamot provided
suggestions for the findings of fact and other language.
Planning and Development Services Committee, 11/14/2000, Page 1
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Matt Aamot, Senior Planner, stated this came to their attention last week
because of the Nooksack Tribe proposal out of Deming. They called the department
and asked if the County supported the proposal. His first reaction was that sewer
outside of an urban growth area (UGA) is not appropriate. As they looked at the
policies, existing policies also talk about sewer in small town areas, such as Custer,
Deming, Acme, Maple Falls, and Glacier. There are no sewer providers in those
areas at the time. The Nooksack Tribe is looking into putting sewer in the Deming
area. He began to think that this impacts Whatcom County Code Title 21 also. He
proposed to amend the sewer sections 21.04.100(2), 21.05.090(2), and
21.07.090(2), "Outside of Urban Growth Areas and Small Town Comprehensive
Plan designations, subdivision shall not..." as outlined on page two of his memo
dated November 14, 2000 regarding AB2000 -160, Draft Title 21 Land Division
Regulations. Short -plats and plats would not be approved if they require public
sewer. They are saying that, in small town areas, it is okay to have sewer based
upon those Comprehensive Plan policies.
Hoag questioned the implication of the added language. Aamot stated that
in the Small Town Comprehensive Plan designation areas, which include Deming,
Acme, Maple Falls, Glacier, and Custer, one could have sewer at his or her
subdivision if it is available.
Hoag questioned whether these small towns have any kind of a boundary
similar to city limit boundaries for cities. Aamot stated there are boundaries to the
Small Town designation on the maps in the Comprehensive Plan.
Crawford moved to recommend the addition of all the language suggested by
staff in Mr. Aamot's memo dated November 14 regarding AB2000 -160, Draft Title
21 Land Division Regulations.
Motion carried unanimously.
McShane thanked Mr. Aamot and Mr. Grant for their research on the findings
and on the legal issues.
Beginning on packet page 175, the November 7, 2000 memo from Matt
Aamot regarding AB2000 -160, Draft Title 21 Land Division Regulations, there are
suggestions on the exempt well issue they are struggling with.
Aamot stated the text starts on packet page 177. The Health Department
recommended, and he concurred, to delete the previous language added by the
committee in section 21.05.080(1). It is the same language that the State
Department of Ecology (DOE) and Attorney General are suggesting. His
understanding from the last meeting was that multiple wells would be disallowed
only if in a closed aquifer in hydraulic continuity with a closed stream. This
regulation would not prohibit all multiple exempt wells, but only in those two
situations. The Health Department suggested that the old language be deleted so
that there was no conflict between the two concepts.
Planning and Development Services Committee, 11/14/2000, Page 2
1 Another issue the Health Department raised was who would determine
2 whether the aquifer is in hydraulic continuity with a closed stream. The DOE, Heath
3 Department, and Land Use Division don't have staff. Typically with Land Use
4 regulations, the burden of proof is with the applicant, and that is what he
5 suggested.
6
7 In section 21.05.080(1)(a), he recommended that closed rivers be added.
8 The wording the Council adopted specified closed streams. Streams are defined in
9 the County ordinances as certain smaller flowing water bodies. He thought it was
10 appropriate to add rivers. In the Washington Administrative Code (WAC), there are
11 streams with partial -year closures and full -year closures. Fish utilize the stream
12 during those periods of closure. He suggested that the provision apply to streams
13 closed all of the year and also part of the year.
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15 The Health Department wanted to change the name of the Health Officer to
16 Director of Health and Human Services.
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18 All of those changes would apply to long- plats. The County Council didn't
19 talk about this language in relation to binding site plans. He suggested that the
20 Council consider that, beginning on packet page 178. He also suggested adding the
21 finding, as suggested on packet pages 179 and 180, which are pages five and six of
22 his November 7, 2000 memo regarding AB2000 -160, Draft Title 21 Land Division
23 Regulations.
24
25 McShane stated they should allow making the applicant demonstrate that
26 their withdraws from multiple exempt wells would not necessarily be within an area
27 with instream flow problems, but that they are drawing water in an area of
28 hydraulic continuity. In addition, they should allow it if the applicant withdraws
29 water from an aquifer with incontinuity only if the amount of or method in which he
30 or she would draw water would not have an impact on the stream. He was not sure
31 who would do the review, but it allows flexibility to someone who feels that his or
32 her only option to subdivide their land is by having multiple exempt wells. Aamot
33 stated that concept is in section 21.05.080(1)(a). He suggested that the criteria be
34 that the applicant 1) is in hydraulic continuity and 2) does not reduce actual flows
35 in the river or stream.
36
37 Hoag questioned where the burden of proof would be. Aamot stated he was
38 suggesting that the burden of proof be on the applicant.
39
40 Hoag questioned whether the wording states that.
FIN
42 McShane stated they want to go in the same direction, but whether or not
43 the language accomplishes that is questionable.
44
45 Hoag stated the language says that the usage of water shall not exceed
46 5,000 gallons per day under these circumstances, but it doesn't say that the
47 applicant would demonstrate whether or not those circumstances exist. She asked
48 for a legal opinion.
49
Planning and Development Services Committee, 11/14/2000, Page 3
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Dave Grant, Senior Civil Deputy Prosecutor, agreed that the language should
be reworded.
McShane suggested language at the end of subsection (1)(a), "Applicants for
subdivisions that propose to use water exceeding 5,000 gallons per day without a
valid water right must demonstrate that the withdraw would not result in increased
frequency of the river or stream not meeting instream flows." The implication is
that the stream or river may not already be meeting instream flows.
Brenner questioned whether it is still the burden of the applicant to show
whether they are getting into the groundwater if there is an aquifer that is
hummocky and places where one is getting into the groundwater and other places
where one is not getting into the groundwater.
Roland Middleton, Land Use Division Manager, stated that was the point.
Brenner questioned whether there are any aquifers not in continuity with
streams or rivers, and are drinking water aquifers.
McShane stated there are. In the upper Ten Mile Creek watershed, which is
an impacted stream, most residents are drinking water out of an aquifer in which it
would be difficult for water to be in continuity with each other. The water flows on
a clay layer 40 feet thick. Underneath the clay, there is another sand layer. That is
where most people are getting their drinking water.
Brenner questioned whether there are isolated aquifers that have no
continuity or direct contact with any streams.
McShane stated there are in that particular area.
Crawford stated the majority of the Council voted 4 -3 to include the
restriction on exempt wells in subdivisions. Since that meeting, they've had a
response from the Building Industry Association (BIA), DOE, and Health
Department. He questioned whether they should discuss the overall issue of
restricting exempt wells, or if that was moot because the Council already voted 4 -3
to include this, as opposed to talking about the changes recommended by staff on
the language.
McShane stated that even when the Council approved this, it recognized that
there were language flaws that needed to be worked out. They may be running up
against a bit of a language flaw that could be worked out by staff. He and the staff
are in agreement. Whatever is done would address his additional concerns from
the additional information the Council received.
Crawford stated that if the committee just needs to iron out the language
concerns, he would not participate in the discussion because he was opposed to the
entire concept. He was just curious about whether the chair wanted to entertain a
discussion going back to square one in committee. He had questions on the
additional information, but it got more to the essence of the overall issues as
Planning and Development Services Committee, 11/14/2000, Page 4
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opposed to the details of the language. He didn't know when the appropriate time
was to bring it up.
McShane concurred that they should have an overall discussion, not
necessarily about whether the Council should reverse its vote, but on the final
language that may be reflective of the additional information it received. Perhaps,
that information may be enough to change the vote.
Hoag stated that if the committee could quickly agree on language, then
everyone has something to respond to in terms of how the regulations address the
concerns of the citizens. In this kind of a situation, every word is important. If the
Council has language to address its concerns about properly protecting the resource
while at the same time properly protecting people's rights to reasonably use their
property, it would be important to reflect the direction of the Council, get the
language, and then allow the public to comment. That way, they could move on to
the other items up for discussion. A broad discussion of the concept is not going to
help them. It would bog them down more. Get the language first, and then have
the broader discussion.
Crawford stated it didn't matter to him one way or another, he just wanted to
know when to speak.
McShane stated he liked the idea of having a discussion on the broader issue,
because the material provided influenced him on where he thought they should go.
Mr. Grant brought up suggested language that would work.
Dawson questioned whether they should use the word "withdrawal" instead
of "usage."
Grant stated he ought to take a look at RCW 90.44.050, and suggested they
use the word "withdrawal."
McShane agreed with that suggestion.
Hoag moved to change the word "usage" of water to "withdrawal" of water.
Brenner asked if it interfered with the concerns raised by Councilmember
Crawford.
Hoag stated the motion just changes the one word.
Motion carried 2 -0 with Crawford abstaining.
Crawford stated he abstained because he objected to the overall restriction.
Crawford questioned the Jim Bucknell memo on packet page 182 and
questioned whether it would be appropriate to wait on making any regulation like
this until they hear the result of the court case.
Planning and Development Services Committee, 11/14/2000, Page 5
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McShane stated the committee needs to answer that question in executive
session. Any discussion of the Building Industry Association (BIA) letter should also
be in executive session, since they are threatening to sue the County.
Middleton stated the committee should make it clear who is going to fall into
this regulation and who is not. There is a reverse hierarchy of language that is
difficult to understand.
McShane stated the way it is written currently is fine. There is suggested
language from Mr. Grant that clarifies what they were trying to do. He read that
suggested language for section 21.05.080(1), "...usage of water shall not exceed
5,000 gallons per day per subdivision and that the subdivision would not withdraw
groundwater from source aquifers and in hydraulic continuity with rivers or
streams..."
Hoag stated they are trying to say that an applicant would only have to prove
that the withdraw wasn't more than 5,000 gallons if certain things apply. When the
language "and that" is added, the applicant has to prove that there is not withdraw
of 5,000 gallons in addition to the other conditions. That is what they wanted.
Middleton stated that was why he asked. He wanted to find out what the
committee wanted to do.
McShane stated he wanted to restrict the subdividing of land in areas where
a person would use multiple exempt wells. They don't want to restrict it
everywhere, only in locations where it is appropriate. There are locations where, if
done appropriately in areas with impacted streams, one could still withdraw water
from the aquifer with multiple exempt wells, and it won't have an impact. The onus
of proving that would be placed on the applicant.
Hoag stated the wording was for the applicant to prove that he or she wasn't
in hydraulic continuity and that the withdrawal would not result in increased
frequency of reduced river or stream flows. The committee was saying that it
shouldn't exceed 5,000 gallons per day under these two conditions. Grant stated
he changed the language to make it clear that the burden of proof was on the
applicant to demonstrate that the withdrawal would not exceed 5,000 gallons per
day, the withdrawal would not be from a source aquifer in hydraulic continuity, and
that the withdrawal would not result in reduced stream flow. He responded to the
concern that they are putting the burden of proof of those elements on the
applicant.
Hoag stated the language "and that" means that the first thing the applicant
has to do is prove that withdrawal would not exceed 5,000 gallons. That would
apply even if he or she is not in an area of a closed aquifer. The suggested
language requires the applicant to prove that he or she would not withdraw 5,000
gallons, regardless of whether or not the two conditions apply.
Middleton stated that the applicant is going to have to show, one way or
another, whether or not his or her usage will not exceed 5,000 gallons per day.
Planning and Development Services Committee, 11/14/2000, Page 6
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Hoag stated the applicant only has to prove the 5,000 - gallon withdrawal if
one of the two circumstances are met.
Middleton stated they should put the conditions up front.
McShane stated he wanted to emphasize that the applicant can affect the
stream or river as long as he or she does not affect the increased frequency. That
point is important.
Hoag stated they could switch the language so it says that if one of the two
conditions exist, then the applicant shall demonstrate that it would not exceed
5,000 gallons per day.
Grant stated the majority of the committee believes it is important to put the
burden of proof of these facts on the applicant, not the County. That is the
threshold issue they are trying to sort out. He questioned whether the committee
members agreed with that.
Hoag stated she supported it. The majority of people want to be able to
prove that because they don't want to be dictated to.
Aamot questioned whether they could strike the language about the burden
of proof in that section and put it at the end of the water section.
McShane stated he would leave that up to Mr. Aamot to create appropriate
language.
Hoag asked that Mr. Aamot work with Mr. Middleton's suggested language.
She preferred that the language be very clear about what the applicant must prove.
McShane moved to go into executive session at 3:45 p.m. to address Mr.
Crawford's questions.
Motion carried 2 -0 with Hoag abstaining.
McShane stated the committee would go into executive session for 15
minutes.
(Clerk's note: The committee returned from executive session at 4:20 p.m.
End of tape one, side A.)
Aamot submitted proposed amendments to sections 21.05.080 and
21.07.080 (on file). He took out any mention of the burden of proof from
subsections (1)(a) and (1)(b), which now simply say what has to be proved. The
underlined language at the end of the sections talks about who has to demonstrate
the provisions of the sections. That language would apply for any issue relating to
having adequate water supply, which is standard.
Planning and Development Services Committee, 11/14/2000, Page 7
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McShane suggested adding language Mr. Aamot's suggestions under (1)(a),
"...the withdrawal would result in Feduced riveF or st_eang flews an increased
frequency of the river or stream not meeting instream flows, or"
Aamot stated it is not a good thing to remove any water from a closed
stream because they would be reducing flow from a stream that is already
substandard.
Grant asked to go back into executive session to clarify a point he forgot to
make earlier
McShane moved to go into executive session at 4:25 p.m. to discuss a
specific point on an issue that may involve potential litigation.
Motion carried unanimously.
(Clerk's Note: The committee returned from executive session at 4 :35 p.m.)
McShane stated the committee would have staff come up with language to
resolve issues discussed during executive session. That would come forward at the
next Planning and Development Committee.
Aamot stated a public hearing was scheduled to take place on November 28.
The intent was to have text available so the public could review it. He questioned
when the language should be prepared.
Hoag stated that, generally, if it is prepared for the Council packet, then the
public has access to it and can comment at the public hearing.
McShane stated it still would be within the description of the public hearing.
Hoag stated that if the language was ready by Tuesday, November 21, it
could be in the Council's packet for November 28.
McShane stated that this item and the previous item were being held in
committee.
2. ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY CODE,
TITLE 20, TO REVISE STANDARDS AND APPROVAL PROCESS FOR
HOME OCCUPATIONS AND COTTAGE INDUSTRIES IN VARIOUS
ZONING DISTRICTS (AB2000 -2518)
Hoag stated one item in the Rural Forestry section is wood treatment. It is
recommended to be an administrative approval use. She recently attended the
Environmental Protection Agency (EPA) clean up assessment of the Oeser wood
treating facility and the state Department of Ecology (DOE) persistent bio-
cumulative toxin seminar. At the DOE seminar, they said that only nine sites in
Washington do wood treating, and almost all of them are EPA clean -up sites. It
doesn't belong under administrative approval. The question was whether it should
Planning and Development Services Committee, 11/14/2000, Page 8
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even be a conditional use. It is referenced on packet page 254 at the bottom of the
page, section 20.42.136. Even if they have someone trying to do this out of the
home, the kinds of products used require proper disposal and handling. Many
problems result as a part of treatment. Treatment should not be an administrative
use. Certain things are excluded, such as pulp, paper, or plywood mills because of
the glues and other uses.
Dawson stated it should be in an industrial zone.
Hoag agreed. It should be carefully regulated.
McShane stated he was not sure whether they should make a decision on it
now. He was concerned that someone could treat wood with tung oil. They don't
want people treating wood with other chemicals.
Nelson asked how to proceed. He had many amendments and suggestions.
McShane stated that, because of late hour and other factors, councilmembers
should submit amendments to him.
Dawson questioned whether there was a reason to not include metals in the
cottage industries.
Hoag stated there is metalworking that she would like to allow as a cottage
industry in various places. They would take it up next time they are in committee.
Her intention was to allow that.
McShane stated he would allow the one citizen to comment on cottage
industry and who was very patient during the last meeting.
Crawford asked about the reason for including treatment. Goodwin stated it
is existing language that the Planning Commission added a year ago when they
looked at the east county economic development issues and decided to allow more
wood processing.
Crawford stated the Planning Commission didn't have any discussion of wood
treatment.
Sylvia Goodwin, Planning Division Manager, stated the Planning Commission
discussed a log cabin kit, which includes treating logs on site to produce bulky,
finished, value -added timber products.
Roland Middleton, Land Use Division Manager, stated they looked at the log
manufactured homes and two cedar shake mills that were out there operating.
They also do some treatment. The intention was never to have Oeser Cedar. If
they want to disallow treatment, the language should be refined more to get to the
point of the concern. If they don't allow treatment, the person would have to take
the logs to an industrial site, work on them, and bring them back.
Planning and Development Services Committee, 11/14/2000, Page 9
1 Wayne Sherwood, 5804 Hannegan Road, stated he was concerned about
2 some of the things the County is going to let people do. The definitions of what
3 people can do need to be addressed. He was concerned that the County was going
4 to remove the rural business regulations. The County planners did a good job on
5 the recommendations. His conditional use permit was more restrictive 20 years
6 ago, due to the nature of what he was doing. He was limited on his hours, the size
7 of the sign, and the Hearing Examiner came to the location to listen to the noise
8 that he made. Keep the rural business regulations that would provide flexibility,
9 and people would still have to do the conditional use permit process. If a cottage
10 industry or home business doesn't affect the neighbors or the environment, then
11 they shouldn't be restricted, other than on the amount of employees.
12
13 Hoag stated the rural business section was something that was added.
14 Sherwood stated there were few restrictions on the existing laws that are in effect,
15 other than what the Hearing Examiner could come up with for retail sales and
16 manufacturing.
17
18 Hoag stated they tried to make it so the cottage industries that didn't have
19 impacts were encouraged to operate by making them an administrative use, and be
20 more specific about what those cottage industries would be. The industries that do
21 have impacts need to go through a more restrictive permitting process or be in an
22 industrial zone. That is the goal.
23
24 McShane stated the Title 21 and Cottage Industries were being held in
25 committee.
26
27 Crawford stated they've moved Title 21 out of committee to the Council. He
28 believed the discussion was being held in Council.
29
30 McShane stated he believed they need to bring forward some of the more
31 contentious amendment ideas they've been dealing with to the full Council to get an
32 idea of where the Council was for the public hearing. He will have language worked
33 out with staff at the next Council meeting regarding subdivisions in areas where
34 there are instream flow impacts. Other than that, it will come before the full
35 Council on November 28. That is when the public hearing is scheduled. The
36 Cottage Industry ordinance is being held in committee for the next meeting.
37
38
39 OTHER BUSINESS
40
41 APPROVAL TO SEND LETTER SUPPORTING NOOKSACK TRIBE EFFORTS TO
42 BUILD SEWAGE PLANT (AB2000 -403)
43
44 McShane stated the Nooksack Tribe questioned whether the Planning and
45 Development Committee would be interested writing in a letter of support for their
46 funding request. He would have to recuse himself from that discussion because he
47 is involved in this project and didn't know whether it would ever come before the
48 County Council. He would defer to Mr. Crawford to chair the committee and decide
49 what to do with this.
Planning and Development Services Committee, 11/14/2000, Page 10
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Crawford stated they received a letter from the Nooksack Indian Tribe,
written by Mr. Harry Skinner, who may be working under contract as a consultant
for the Nooksack Tribe. The letter says they've completed their preliminary
engineering studies for the sewage treatment facility. Based on the Whatcom
County Comprehensive Plan, they understand that Whatcom County is willing to
support them in this effort. The Nooksack Tribe would like a letter of support from
the County Council. They are submitting a request for federal funding assistance.
They are looking for a full resolution of support from the Council. The letter would
be addressed to the Nooksack Indian Tribal Center, from the County Council. He
read the letter template from Mr. Skinner into the record. This letter was
suggested as one for the Council to write. It is not a proposed letter from a County
councilmember.
Hoag stated that if they adopt the letter, they should make it more
grammatically correct. She questioned why there is a timely issue. If the County
Council sends a letter of support, and the Nooksack Tribe doesn't get funding
somewhere else, it may put the County in the position of having to provide funding.
Crawford stated the tribe is submitting a grant application on November 30.
Dawson stated there are probably timelines for the grant funding.
Hoag stated the Council meets on November 28. They could defer the issue
until then. She was hesitant to send a letter of support if they don't have the
details. She wanted to know why they think it is a good idea. She doesn't know
hardly anything about it.
Crawford agreed. The letter of support seems benign, but he didn't know
what difference it would make that the Whatcom County Council be involved.
Hoag stated that it helps a grant application if people write letters of support.
Crawford stated it could be that it is not so much support for the project as it
is support for the Nooksack Tribe's efforts, regardless of the project.
Dawson stated she would support the letter. Economic Development is what
they are looking at. She was concerned and wanted to note that the project is for
the general Deming community, not the tribal community. They are going to serve
tribal members as well as non - tribal members. They need to include a paragraph
that says such support is contingent on a clearly written agreement stating there
will be equal treatment for non - tribal members, tribal members, and owners of fee
land versus owners of trust land.
Hoag stated she wanted more information about the problem.
Hoag moved to request a presentation during the November 28th committee
meeting.
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Motion carried unanimously.
Dawson suggested that they schedule it on the agenda, and then call Mr.
Skinner to request the presentation.
Sylvia Goodwin, Planning Division Manager, stated they should consider that
there are strong Comprehensive Plan policies about not allowing sewer outside of
urban growth areas. It would be okay, but they would want to clearly specify that
the sewer could only be provided within the small town of Deming and not outside
of that area. Otherwise, it is a violation of the Comprehensive Plan and Growth
Management Act.
Crawford moved that staff provide comment on the letter for the next
committee meeting.
Hoag asked staff to bring the Comprehensive Plan policies that the Nooksack
Tribe quoted as being in support of the project to the next meeting. Goodwin
stated she would bring forward all those policies.
Motion carried unanimously.
ADJOURN
The meeting adjourned at approximately 5:00 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 Services Committee, 11/14/2000, Page 12