HomeMy WebLinkAboutPlanning November 28 20001
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WHATCOM COUNTY COUNCIL
Planning and Development Committee
November 28, 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: Absent:
Connie Hoag None
Sam Crawford
SPECIAL PRESENTATION
ADDENDUM:
PRESENTATION AND BRIEF DISCUSSION REGARDING THE PROPOSED
DEMING WASTEWATER TREATMENT PROJECT (AB2000 -403)
This item was not discussed.
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY ZONING
ORDINANCE, TITLE 20, SECTION 20.42.150 TO ALLOW PUBLIC
HEALTH AND SAFETY FACILITIES AND ROAD MAINTENANCE
FACILITIES WITHIN THE RURAL FORESTRY ZONING
CLASSIFICATION AS A CONDITIONAL USE (AB2000 -392)
Sylvia Goodwin, Planning Division Manager, stated the Planning Commission
recommendation was to approve the change, but staff changed wording. The
recommendation is on packet page 49. The state Department of Transportation
(DOT) wants a highway maintenance facility in a rural forestry zone, which makes
sense. The language that staff recommended is on packet page 52. It is similar,
but more specific. It actually lists the types of facilities. Either language would
work. The concern is that there will be language coming up in the future in the
Agricultural zone regarding public facilities. It would be nice if the wording of the
two were similar. A problem throughout the zoning code is each different zoning
district having different wording for the same thing.
Hoag questioned what public facilities would qualify under the term "public
facilities" for emergency - related health and safety purposes and road maintenance
facilities. Goodwin stated she could see a satellite police station, an ambulance or
fire station, and road maintenance facilities. There aren't a lot of other public
health and safety related facilities. They didn't want libraries and other things
where the public would have to drive out to the forest to go to the library.
Planning and Development Committee, 11/28/2000, Page 1
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Hoag questioned whether the emergency language would apply to road
maintenance facilities, or if ordinary gravel pits would qualify. Goodwin stated it
specifies health and safety purposes and road maintenance facilities. A road
maintenance facility is separate from a facility for emergencies. A gravel pit that is
not a road maintenance facility is already allowed in the Rural Forestry zone.
Hoag asked the difference between a road maintenance facility and a gravel
pit. Goodwin stated a gravel pit is already allowed in a Rural Forestry zone, so it
wouldn't matter, but a road maintenance facility is a gravel pit that specifically
produces gravel to maintain roads. It wouldn't produce gravel that is sold to
someone.
Hoag questioned whether that broadens the language in the Agricultural
zone. Goodwin stated gravel scalping is allowed in the Agricultural zone already. If
it is just a gravel pit that is selling the gravel, then it wouldn't qualify. The road
maintenance facility has to be public.
Hoag moved to approve the staff's recommendation on packet page 52,
section 20.40.151 "Public facilities for emergency - related health and safety
purposes, such as fire halls and Washington State Department of Transportation
satellite road safety facilities."
Goodwin stated she didn't think the change required a public hearing
because it wasn't substantive enough. Both the versions say the same thing. It is
just word- smithing.
Brenner asked if there was a way to streamline the language through the
Planning Commission so it could deal with all the zones together, rather than
dealing with them separately.
McShane stated that the Agricultural zone is already coming to the Council
with that language in it.
Brenner asked if there is another zone where this hasn't been done and why
the Council is getting this piecemeal.
Hoag stated the Department of Transportation asked for this change because
they need to move the facility to a different spot where it is not zoned.
Goodwin stated that Dave Grant, Senior Civil Deputy Prosecutor,
recommended a public hearing to be safe. The Department of Transportation is in a
hurry to get this approved. They are waiting to build the facility and buy the land.
It is contingent upon this zoning text. They could schedule it in two weeks. She
didn't think a two -week delay would kill the project.
Jim McDonald, Washington State Department of Transportation (DOT), stated
the two -week delay would not be a problem.
Motion carried unanimously.
Planning and Development Committee, 11/28/2000, Page 2
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Hoag moved to strike finding seven on packet page 45. This finding has
nothing to do with putting in emergency road maintenance facilities. All this
ordinance does is allow emergency public facilities and road maintenance facilities
to be located in the Rural Forestry zone. The ordinance has nothing to do with
paralleling resource uses in Agriculture and Rural Forest zones. Goodwin stated the
finding was intended to make the language consistent between the Agricultural
zone and the Rural Forestry zone, which are both resource zones. That was the
reason for the change in the wording over what was proposed by the applicant,
which was different language altogether. The finding gave justification for not
going with what the applicant proposed, which was to have a permitted use, and
was broad to allow public facilities. The proposal was to have it a permitted use
and allow all public facilities. The staff recommended, and the Planning
Commission agreed, that they don't want all public facilities and to be consistent
through all the zones.
Hoag stated the finding says that the allowed uses should parallel each other.
Goodwin stated that the proposal was to outright permit public facilities.
Hoag stated that proposal is not what is before them to vote on. The finding
doesn't match what they are doing. Goodwin stated that if the committee wants to
strike it, it could. The only reason findings are critical is if someone wants to
appeal something. No one is likely to do that.
Motion to amend failed 1 -2 with Hoag in favor.
2. ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY ZONING
MAP FROM RURAL, FIVE ACRES (R5A) TO SMALL TOWN COMMERCIAL
(STC) FOR APPROXIMATELY 3.4 ACRES OF A 5.18 ACRE PARCEL
LOCATED WITHIN THE SHORT TERM PLANNING AREA OF THE
COLUMBIA VALLEY /KENDALL URBAN GROWTH AREA (AB2000 -322)
Sylvia Goodwin, Planning Division Manager, stated they changed the zoning
within the town of Kendall to Small Town Commercial a little over a year ago.
There was discussion about this site. The applicant received misinformation from
his realtor and was not present at the hearing. His property was split in half. Half
the property was changed to Rural zoning. The front half of the property remained
Small Town Commercial. The owner didn't have the opportunity to speak because
he didn't realize it was scheduled for a rezone. It has taken a year to get it through
the process. Staff and the Planning Commission recommend approval. The owner
had some plans to develop the property when it was rezoned, which he isn't able to
do now.
Hoag questioned the location of the two other properties that were bisected.
Goodwin stated those properties are on the map. Those applicants weren't
concerned about having their properties split into two zones. The Kendall Store is
immediately to the east of the subject property.
Planning and Development Committee, 11/28/2000, Page 3
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Hoag questioned the zoning that the store has. Goodwin stated the store is
within the Small Town Commercial zone.
Hoag questioned what it means that the property is in a critical aquifer
recharge zone. Goodwin stated the entire Columbia Valley and Kendall area has
pervious soils and water falls on the ground, soaks in, and recharges the aquifer.
Staff is concerned, and many Comprehensive Plan policies talk about protecting the
groundwater. Also, Kendall Creek comes through the area and has fish. It is far
enough away from this that there may not be a big problem. If the owner was to
pave that entire area, there could eventually be an aquifer issue.
McShane stated the soils are extremely pervious.
Hoag asked if there is a difference if aquifer recharge zones are critical.
Goodwin stated it is designated in the Comprehensive Plan and Critical Areas
Ordinance. It is a combination of surface soils and subsurface geology. It really
just means the area where the water infiltrates to an aquifer.
Hoag questioned whether the entire Kendall Valley is a critical aquifer
recharge zone. Goodwin stated a good portion of Kendall Valley is that way.
Hoag asked how the boundary for the current Small Town Commercial (STC)
zone was drawn up. Goodwin stated originally the property was zoned Tourist
Commercial, before the Comprehensive Plan. It was zoned Tourist Commercial with
a concomitant agreement that allowed a hotel and other development. When the
County did the Comprehensive Plan in 1997, former councilmember Tom Brown
wanted to make sure the area has an economic development base and suggested
going one - quarter mile from each side of the intersection to make it a square.
Once they discussed that, they made the boundary follow property boundaries as
close as they could. These lots were long and they didn't want to go that far back.
That was the compromise.
Hoag stated the rezone would make an irregular boundary. She questioned
whether the staff expects that the other lots would also change their boundaries, or
if the area would have a peninsula of different zoning. Goodwin stated it is not a
concern. It is projected long -term that all of the areas would change. They are
now within the boundaries of the Columbia Valley urban growth area. The intent is
that they will need additional commercial land in the long -term.
Hoag asked if the property has adequate access. Goodwin stated it does.
Brenner questioned whether this is the area near the school. Goodwin stated
it is. It is to the southwest.
McShane moved to recommend approval.
Hoag asked if it was unusual to not have any response from any agency and
district that was notified. Goodwin stated it is not unusual.
Planning and Development Committee, 11/28/2000, Page 4
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Motion carried unanimously.
3. ORDINANCE AMENDING WHATCOM COUNTY CODE 20.10 AND 20.97,
TO MODIFY THE PROCEDURES FOR PROCESSING COMPREHENSIVE
PLAN AMENDMENTS (AB2000 -300)
Sylvia Goodwin, Planning Division Manager, stated they've discussed this
several times. A year ago, when they didn't have criteria for docketing and
approving Comprehensive Plan amendments, they talked about it. They drafted
criteria, and it has taken this long to get through the Planning Commission. Staff
recommends approval. It would give the Council a better way to judge whether
something is or isn't appropriate for a Comprehensive Plan amendment.
Hoag moved to recommend approval.
Hoag moved to amend language in section 20.10.010(4), "...an emergency
exists, ei�vd or...." It matches language in the staff report.
Goodwin stated they could also place a semicolon after the last word in
section 20.10.010(3), to be consistent.
McShane suggested a friendly amendment to also add a semicolon to the end
of section 20.10.010(3).
Hoag accepted friendly amendment.
Motion to amend carried unanimously.
Hoag questioned why the terms "area -wide land use reclassification" and
"site- specific land use reclassification" were stricken.
Matt Aamot, Senior Planner, stated those two terms were not used in the
regulations anywhere except in the definition section. They were superfluous.
Hoag stated she didn't see any similar language in the code. Aamot stated
there is no need to make the distinction because there is no regulation that requires
area -wide reclassification to be treated differently than site - specific reclassification.
They are definitions that are not used in the body of the text.
Hoag stated the language in other areas has been picked up, except the
language regarding adoption concurrent with the County's budget. She questioned
whether they are intentionally dropping that language and leaving it so they must
be adopted on or around November 30 for more flexibility. Aamot stated that was
correct. That was an issue last year.
Hoag moved to substitute the language in section 20.10.080(3)(b) with the
stricken language on packet page 97, section 20.10.090(2)(c), including added
Planning and Development Committee, 11/28/2000, Page 5
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language, "...other to provide adequate services and public facilities...." When they
are considering Comprehensive Plan amendments, the effect on sheriff services is a
huge consideration that is not in this language currently. Aamot stated that would
be fine.
Hoag questioned whether there are other services that are being left out.
She would prefer to keep the language general so they don't cause any problems
by leaving things out.
Crawford agreed with Councilmember Hoag and suggested a friendly
amendment, "...other service providers, such as schools, water and /or sewer
purveyors, fire districts, and /or transportation facilities, as applicable, to provide
adequate services and public facilities..."
Hoag accepted the friendly amendment.
Motion to amend carried unanimously.
Hoag stated that one thing stricken from section 20.10.100 was the public
comment period in the Planning Commission. She questioned staff's reasoning.
Aamot stated the public can comment at any time until the record is closed. The
Planning Commission doesn't specify a time that the public can comment. The
public can submit letters at any time until the record is closed. He was trying to
make the language reflect the process that is used currently. There is an
opportunity to comment now.
Hoag stated the wording in the section says that the Planning Commission
will establish a public comment period, during which a public hearing will be
scheduled, when it gets the recommendation. Now, the language says that they
are going to hold a public hearing. When she reads the language, it tells her the
public comment period is gone. There is no more mention of a public comment
period. She questioned why they would want to get rid of a public comment period.
She questioned why they would want to strike the language if they are going to
have the public comment period anyway. Aamot stated the Planning Commission
doesn't specify a comment period for each proposal. The public has the ability to
comment at any time during the process until the record is closed.
Hoag asked how the public knows when the record opens and closes and that
their comments will end up on the public record, unless the Planning Commission
establishes a public comment period. Aamot stated they have to put an
advertisement in the newspaper when they get the amendments. That is how staff
lets the public know. If they have a site - specific proposal, then staff mails
notification to people within 300 feet ten days before the hearing.
Hoag questioned whether the advertisement says that the Planning
Commission will be taking public comment for a particular period of time. Aamot
stated the advertisement says that people can comment before or at the hearing.
Planning and Development Committee, 11/28/2000, Page 6
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Hoag stated she was not comfortable with the language change. She wanted
to make sure there is due public process, and that it's clear to the public. She
didn't understand what the advantage is to striking the language. There is an
advantage to retaining the language. She moved to amend packet page 97, section
20.10.100, to reinstate suggested amendments in subsections (1) and (2),
"(1) ... and shall establish a public comment period during which #ew a public
hearing ... (2) At the conclusion of the public heaFings comment period..."
Goodwin stated the County Council, by resolution, has already established
those public comment periods. This would make it that the Planning Commission
would have to have a meeting to establish the comment period, and then have the
comment period. The Planning Commission doesn't establish the comment period.
The County Council already did that, by resolution.
Hoag questioned whether the problem is the word "establish." Goodwin
stated that is a problem because the Planning Commission doesn't establish the
comment period. The Planning Commission just holds the hearing.
Aamot suggested °(1) ... amendments and shall take public comment and hold
a public hearing..."
Hoag accepted the language suggested by Mr. Aamot.
Motion to amend carried 2 -1 with Crawford opposed.
Crawford stated Mr. Aamot did a great job of clearing up the language, and
made subsection (2) consistent with subsection (1). He liked the way Mr. Aamot
wrote the language.
Hoag moved to amend subsection (2), "At the conclusion of the public
heaFings comment period...." This is more accurate because often times the public
comment period extends beyond the public hearing. Aamot stated that was
correct. Staff didn't object to the proposed amendment.
Motion to amend carried 2 -1 with Crawford opposed.
(Clerk's Note: End of tape one, side A.)
Hoag suggested amending language in section 20.10.130, "...at least 60 days
prior to final adepti anticipated action. The department...." Final adoption is at
the County Council level. The timeframe of 60 days prior to final adoption could be
after the Planning Commission is already done with it. That wouldn't give the
Planning Commission the opportunity to have comment from the state Department
of Community, Trade, and Economic Development (CTED). Aamot stated that is
potentially true. Staff was trying to streamline the process and paperwork. The
state law says they have to go 60 days before adoption, and then send it 10 days
after adoption. The County Code requires three submittals to CTED now.
Planning and Development Committee, 11/28/2000, Page 7
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Hoag questioned whether the language would make it so the Planning
Commission would not have the benefit of those comments. Aamot stated not
necessarily. Staff could send it early. They could send it more than 60 days in
advance.
Hoag questioned what staff is trying to accomplish with the language change.
Aamot stated there is a list of state agencies that staff sends information to, in
addition to CTED. It is not always easy. They are trying to cut down on the
paperwork and still be consistent with state law. This language would not prohibit
staff if they have a big project to send it out multiple times if needed. There are
many more minor, non - controversial projects in which it isn't necessary to make
multiple submittals.
Hoag stated she was concerned that, when staff brings a recommended
change to the Planning Commission, she would like CTED to be able to comment at
that point so the Planning Commission has the benefit of those comments. If the
Planning Commission doesn't have the benefit of having CTED comments, and the
County Council does, then they are put in a difficult situation. Aamot stated the
staff could send the information on a big project, and request comments before the
Planning Commission hearing.
McShane stated he was happy with the language as it is, and would not
support a change to the proposed language at this point. He was concerned about
the timeliness of tweaking language if it would be voted down.
Hoag stated Councilmember Crawford was on the Planning Commission. She
questioned whether he believed it is important that the Planning Commission get
the benefit of the agency's comments.
Crawford stated it is important, but the Planning Commission gets that
information.
Hoag stated the Planning Commission gets the information now because the
current language requires it prior to anticipated action. The proposed new
language requires it prior to final adoption, which could be after the Planning
Commission is finished with it.
Crawford stated the most salient comments he'd seen by Holly Gadbaw are
usually received after the Planning Commission action. He didn't remember, even
under the current system, that she has done much to contribute before the
Planning Commission. Their action is more of a reaction. The proposed language
does a better job of reflecting what is happening now with their comments. The
Planning Commission would love to have as much input as early as possible. He
didn't know that Gadbaw has the time or the ability to take every Planning
Commission packet and give comment before the Planning Commission even has its
hearing.
Hoag stated that if they are not looking at it until the Planning Commission is
through with it, then they are just wasting staff time. She questioned whether the
Planning and Development Committee, 11/28/2000, Page 8
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way the current process is working is true. Aamot stated it is true. They've
received comments on the big projects after the Planning Commission hearing.
Crawford stated he was comfortable with the proposed language. The
Planning Commission has looked at this, considered this, and recommended the
change to the Council.
Aamot stated staff would recognize the big projects and try to send those
early.
Nelson stated the language in section 20.10.060(3)(d) on packet page 95 is
in a section in which they are determining whether or not to initiate a
Comprehensive Plan amendment. He didn't understand why the Council would
consider whether or not a project has been proposed before, and who would decide
if there are significant changes in the circumstances. There isn't anything in the
Comprehensive Plan that would address this type of language. He questioned
where it came from. Aamot stated he proposed the language. It is not a big deal.
There is a similar concept in the shoreline program. If the criteria haven't changed,
and the project is essentially the same, it should be a consideration to avoid
redundant decision - making and use of public resources.
Nelson questioned whether the applicant pays for the application. Aamot
stated they do.
Nelson stated he liked the idea that the public has access without an
administrative decision - making process, to determine if there have been significant
changes in circumstances. There are times the staff doesn't have knowledge of
circumstances. Aamot stated it is not critical language.
Nelson recommended that the committee remove section 20.10.060(3)(d) on
packet page 95. The Comprehensive Plan succinctly says that the public has access
through the annual process.
Goodwin stated one example that has taken a considerable amount of staff
time is the Lummi rock quarry. She questioned whether this is something they
want to come up every year if nothing has changed. They spend a lot of staff time,
Planning Commission time, and County Council time discussing the same issue
every year. That item took months and months. They've discussed this issue
twice, both times fairly close together. When the same issue was already heavily
debated during the Comprehensive Plan, it came up for an amendment when
nothing changed. Staff spent months working on it again, with the same outcome.
McShane stated this language would provide an opportunity for additional
findings on why they would turn someone down.
Nelson stated that would be up to the County Council. It still would go
through the process because it has to be submitted to the County Council.
Planning and Development Committee, 11/28/2000, Page 9
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McShane stated that what the County Council can weigh in its deliberations
can be more streamlined if it can look at whether there are changed conditions.
Nelson stated they can look at those things, but to put it in writing puts the
County at risk. He didn't care how many times the public brings something
forward.
Hoag stated the reason this was suggested was for the opposite reason, they
were finding some risk. When the Comprehensive Plan amendments came forward
for initiation, the Council had no criteria for saying that an amendment should or
should not be initiated. Therefore, whatever decision the Council made could have
been declared arbitrary and capricious. The language doesn't say that a proposed
amendment couldn't be brought forward if it has already been reviewed. The
language says that its prior review will be considered. That is an appropriate
consideration to make.
McShane moved to strike section 20.10.060(3)(d) to put the discussion on
the floor.
Motion failed unanimously.
McShane moved to recommend approval as amended.
Motion carried unanimously.
4. 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 this item is scheduled to have a public hearing at the
evening meeting. During this committee meeting, discussion is limited to
subdivisions in areas where multiple wells may be used and also language
regarding exemptions.
Matt Aamot, Senior Planner, spoke regarding exemptions. He suggested that
the language in boldface font on packet page 320, section 21.03.020(6)(d), be
approved. The reason for the language in that section is to alert buyers of the
requirements.
Hoag moved to amend language on packet page 320 to reflect staff's
recommendation for subsection (6)(d), "Furthermore, the covenant shall state that
no short plat..."
Motion carried unanimously.
Aamot suggested that the language in boldface font on packet page 320,
section 21.03.020(6)(d), be approved, "...may be created from any of the lots
within five years." If an owner has a twenty -acre parcel, and two parcels are given
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in a checkerboard pattern, then there are two remainder parcels. He wanted
clarification. If the regulation doesn't apply it to the remainder parcels, then the
remainder parcels could be short - platted the next day.
McShane so moved.
Motion carried unanimously.
Aamot suggested that the language in boldface font on packet page 320,
section 21.03.020(6)(d), be approved, "...within five years. After this five year
period, any further division...."
McShane so moved.
Motion carried unanimously.
Aamot spoke regarding multiple wells. Staff made a map of the closed
streams in Whatcom County. The red sections on the map are streams that are
closed to further appropriation for part of the year, such as May to September. The
green sections on the map are streams that are closed throughout the year. The
streams that are open are not highlighted on the map. This information came from
the list in the Washington Administrative Code (WAC). The WAC includes
tributaries. Staff called the state Department of Ecology to make sure the
tributaries were included in the closure, and was told that they are.
Crawford stated most of the streams in the flatter, more developable areas of
Whatcom County are closed for additional water withdrawal.
McShane agreed.
Crawford stated he was drawing the conclusion that most streams in the
flatter, western, potentially developable portion of Whatcom County are closed
streams.
Hoag disagreed.
Aamot stated the Council gave direction for staff to write language, which is
on packet page 339, relating to approving subdivisions that use groundwater that
would diminish flow in closed streams. Staff also inserted that language in the
binding site plan section on packet page 352. The language would not affect pre-
existing lots. It says that the applicant must demonstrate that, if he or she doesn't
have a water right, the subdivision would not withdraw groundwater from an
aquifer in hydraulic continuity with a river or stream subject to a closure period.
Staff created a groundwater profile that the geographic information system (GIS)
people put in a color format. The stream is in the middle of the picture.
Groundwater would not come in contact with the stream. There could be a clay
layer or the groundwater does not rise to the level of the stream. There could be
wells in the area that don't adversely impact the stream and remove water. If this
is the case, then the development subdivision could go forward with multiple wells.
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McShane stated he'd done a fair bit of work in the Ten Mile Creek area. An
area between two drainages of Ten Mile Creek has a very productive aquifer in
which most of the residential homes in the area are tapped into, and it is not in
continuity with Ten Mile Creek or the tributaries to Ten Mile Creek. The wells are
about 80 feet deep. At the top, the aquifer is approximately 60 feet below the
ground surface, but there are streams flowing in that area, so there is no continuity
between the two. There are locations, even within these areas, where one could
put wells in and not impact the streams in the area. In fact, in that area, they want
to be in the lower aquifer instead of the shallower aquifer because the shallow
aquifer water quality is quite poor. The deep water is what people would want
anyway. The map of that area doesn't necessarily mean that one could not put in
exempt wells, or do subdivisions in areas using multiple exempt wells.
Crawford questioned how difficult or easy it is to prove the lack of hydraulic
continuity with the stream.
McShane stated it would be very straightforward at that location. It is not
much different than having to prove there is water available anyway. That has to
be shown before someone does a subdivision in the first place.
Aamot stated that if an applicant can demonstrate that there is no hydraulic
continuity, then he or she doesn't have to show anything else. As far as Whatcom
County is concerned, he or she can put in multiple wells and put in the subdivision.
If there is hydraulic continuity, the well would impact groundwater or stream
flow. In those situations, the applicant could not install multiple wells.
Crawford questioned how that would be determined.
McShane stated there would be a pump draw down test. There is a very
standard modeling approach that is followed to do that. That is the modeling that
would be used. Ideally, there would be monitoring wells in the areas to gauge the
effects on wells some distance away. The method has been tested in court.
Crawford questioned what a developer has to do as a first step. A developer
can't get permits without proving water supply. He questioned whether the
developer would spend the money to bore the wells first.
McShane stated the developer has to do that anyway. The developer has to
show right away that there is water.
Dawson questioned whether it is the Department of Ecology's responsibility
to prove whether there is a measurable negative effect since it is the agency that
closes the aquifers.
Dave Grant, Senior Civil Deputy Prosecutor, stated the court said the burden
of proving negative impact was put on the shoulders of DOE if it desires to deny the
permit application.
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McShane stated they had to take into consideration some of the things the
applicant was attempting to do, and it was remanded back to the Hearings Board.
Aamot questioned whether this is a burden of proof for getting a water right
under the state statutes governing water law.
Grant stated that was correct.
Aamot stated that typically the burden of proof for County land use statutes
is on the applicant. He questioned whether there is a correlation.
Grant stated they are drawing the correlation by the way they are drafting
this ordinance.
Hoag stated the issue of the burden of proof was brought up at an earlier
meeting. When it comes to something that is difficult to prove, they are not talking
about that. It was staff's recommendation to require that the burden of proof be on
the applicant to prove that it wouldn't cause a problem. She appreciated the
concern because they don't want to make the burden unreasonable. From the
description they were given regarding the geology, it sounds like it would not be a
tremendous burden to prove. The County should not have to prove on every
application that the applicant has water. The applicant should have to prove it.
(Clerk's Note: End of tape one, side B.)
Hoag continued to state that she wanted to make certain that what the
County would require, that the applicant prove it is not in an area of hydraulic
continuity, is not unreasonable. She would defer to Councilmember McShane's
experience in that area. She questioned whether they are establishing a threshold
that would be difficult to cross.
Aamot stated Mr. Middleton is also a geologist.
Roland Middleton, Land Use Manager, stated it is not going to be inexpensive
for the applicant. However, the issue they are trying to address is the concern
about whether the proposed development would have an impact to areas with a
closed aquifer or stream. He could not talk about the legality of the closed system
and whether or not DOE has done its homework in closing the system. He is
talking about the administration of regulations on subdivisions. The County doesn't
have the staff to do draw down tests on everyone who wants to maybe do a short -
plat. Road access, land availability, and building sites are things the applicant
needs to show are available. If a project was done ten years ago, a wetlands
scientist wasn't needed on the development team. It is needed now for just about
everything they do. They are not cheap, but it is the cost of development. It is an
additional cost that, because of the water concern in the County, would be incurred
by the applicant. The tests are available and done.
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McShane stated an applicant would need to show that water is available
before getting a permit for a single - family residence. Someone has to do a pump
test.
Hoag questioned whether this is something that is a roadblock to
development, or is just something the applicant has to prove. Middleton stated it is
not impossible to prove, but the applicant will have to make a decision about
whether or not he or she wants to spend the money to start sinking holes. Holes
aren't cheap.
Dawson suggested putting the burden of proof on DOE instead of the
individual applicant.
McShane stated that there are currently no closed aquifers in Whatcom
County.
Paul Chudek, Environmental Health Supervisor, stated that in this
community, it is not difficult to figure out where one can and can't find water. He
hears that from developers all the time. The developers are willing to take the risk
of purchasing property, drilling a well, and finding water. He did not know if the
developers would be willing to take the same risk of drilling the well to determine
hydraulic continuity. That is a different issue.
McShane stated it requires a higher level of knowledge. Chudek agreed.
Hoag stated she appreciated staff's work on the language, and it addresses
the Council's concern, but it doesn't go far enough because it permits multiple
exempt wells in areas where they aren't in hydraulic continuity. Multiple exempt
wells are not appropriate anywhere. It is an inappropriate loophole in the law. She
would support the language because it seems to be a compromise. Aamot stated
staff wrote finding 15, on packet page 307. With this, they are not trying to
implement state law. They are trying to address County concerns outlined in the
Comprehensive Plan, such as protecting threatened fish species. Staff crafted this
to achieve that objective. They are not trying to prohibit multiple wells. They are
trying to meet objectives outlined in the Comprehensive Plan.
Brenner questioned whether the DOE shares staff's understanding of what
this means. She believed that the DOE felt that a stream doesn't have to look like
it's in hydraulic continuity to be in hydraulic continuity, and that virtually all
streams are in hydraulic continuity with some aquifer. She questioned whether this
is the same position that DOE is taking. Aamot stated he had not shown DOE the
drawing. The drawing came from a geologist in his department.
McShane stated that DOE might ask the question of what is the material
between the stream and the aquifer. The United States Geologic Survey did a
study within the Puget Sound. Since then, there has been a push for DOE to say
there is some continuity. It has created water rights problems elsewhere.
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Brenner referenced 21.05.080(2)(d) on packet page 340. There would be a
lesser impact by a lot of wells being punched in if someone is in the service area of
a water association, and the association was required to serve water. When she
read this section, it says that the water association doesn't have to serve if it is
unwilling. There are court cases now that ruled that a water association is required
to serve those in its area. She questioned whether the County could require a
water association to serve if it has the capacity. Chudek stated the County couldn't
require that a water association serve those in its area. They are public water
supplies, by statute, that are privately owned. There could be circumstances, of
which he was unaware, around the court cases that make those cases not
applicable to Whatcom County's circumstances. It's probably different if it is a
water district or public utility, and not a privately owned water supply.
Dave Grant, Senior Civil Deputy Prosecutor, stated the Technical Advisory
Committee looked at that issue. The committee chose this language to overcome
that issue.
Aamot stated this language is the same as the language in the Coordinated
Water System Plan.
Hoag stated the County should not dictate what a private business should or
shouldn't do. Decisions made by water associations are made for a variety of
reasons, including protection of its own water supply. Government doesn't belong
in private business.
McShane addressed the issue raised by Councilmember Crawford of the
percentage of land covered. Significant areas are already covered by water
associations, so there is potential for hookups. In the Sumas area, Sumas provides
water for a very large rural area already. There are areas north of Lynden where
they don't want people putting in wells that have continuity with streams because
there is EDB contamination. That area of concern may not be as extensive as they
think.
Crawford stated that if a person is in an area geographically covered by a
water association, but the water association wasn't providing water, then the
person is still allowed to drill wells.
McShane moved to approve the staff language in section 21.05.080(1) of the
November 17, 2000 draft.
Kathy Bovencamp, Building Industry Association, stated the question is
whether the County Council is granted the authority by state law to regulate
exempt wells. The answer to that question is no. The only authority allowed to
regulate wells and water in the State of Washington is the Department of Ecology.
She supplied the County Council with two court cases, dated as late as September
2000, that upheld the use of exempt wells. The Department of Ecology cannot
regulate exempt wells. She didn't believe that the County Council is granted that
authority under state law, either.
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Aamot stated this proposed statute doesn't regulate multiple exempt wells
per se. If someone has a property, they can do as many wells as they want. They
are now talking about approval or disapproval of subdivisions.
McShane stated his motion also included the binding site plan section.
Brenner questioned whether the County could also regulate existing exempt
wells if it can regulate exempt wells.
Hoag stated they are not seeking to regulate exempt wells. The question
makes an assumption that belongs in executive session.
Grant stated this legislation would not impact existing exempt wells.
Brenner questioned whether the County would have the authority in the
future to regulate exempt wells.
Nelson stated he wanted to hear the answer to that. The County is going to
take steps to protect instream flows and identify that six -packs have an impact.
McShane stated they are regulating the subdivision of land, not wells. This is
only applicable to future long -plats and binding site plans.
Motion to approve staff's recommended language in sections 21.05.080(1)
and 21.07.080.
Motion carried 2 -1 with Crawford opposed.
Aamot stated the Health Department wanted to substitute "Health Officer"
with "Director of Health and Human Services" in all sections of the code. He
questioned whether that was okay with the committee.
McShane moved to strike "Health Officer" and replace it with "Director of
Health and Human Services" throughout Title 21.
Motion carried unanimously.
Hoag asked to have a short discussion regarding the nitrate situation in
committee rather than at the full Council meeting.
McShane stated he would rather have the discussion before the full Council
because there would be some controversy on that issue, and the entire Council
should hear the discussion.
McShane moved to amend finding 15 on packet page 307, "The subject
regulations 4m+t ensure that groundwater withdrawals... divisions in„rorder to will
promote... Comprehensive Plan and Comprehensive Water Resource Plan by
protecting...." He had no desire to limit groundwater withdrawals. He only wanted
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to ensure that the groundwater withdrawals they have are going to fit in with the
Comprehensive Plan and Comprehensive Water Resource Plan.
Motion carried 2 -1 with Crawford opposed.
COMMITTEE DISCUSSION
1. ORDINANCE AMENDING WHATCOM COUNTY CODE, TITLE 20, TO
REVISE STANDARDS AND APPROVAL PROCESS FOR HOME
OCCUPATIONS AND COTTAGE INDUSTRIES IN VARIOUS ZONING
DISTRICTS (AB2000 -251B)
This item was not discussed.
OTHER BUSINESS
McShane thanked Councilmember Crawford for his patience and staff
members for their efforts.
Brenner asked Councilmember McShane to put the issue regarding water
associations on the committee agenda in the future.
ADJOURN
The meeting adjourned at approximately 5:20 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, 11/28/2000, Page 17