HomeMy WebLinkAboutCouncil October 12 1999I WHATCOM COUNTY COUNCIL
2 Regular County Council
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4 October 12, 1999
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7 The meeting was called to order at 7:00 p.m. by Council Chair Marlene
8 Dawson in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
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10 Also Present: Absent:
11 Kathy Sutter None
12 L. Ward Nelson
13 Connie Hoag
14 Barbara Brenner
15 Tom Brown
16 Robert Imhof
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18 ANNOUNCEMENTS
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20 Dawson announced there was Discussion with Whatcom County Public
21 Works Director Jeff Monsen and Water Resources Manager Bruce Roll
22 regarding the WRIA 1 Watershed Management Project (AB99 -391) during
23 Committee of the Whole. There was also a discussion with Human Resources
24 representatives regarding various collective bargaining agreements (AB99 -
25 018) in executive session.
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27 SPECIAL PRESENTATION
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29 UPDATE ON PROGRESS AND PLANS FOR COMMUNITY ACCESS
30 TELEVISION (CAT -10) CHANNEL 10 (AB99 -017)
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32 Felix Anderson, City of Bellingham Director of Information Technology
33 Services Department (ITSD), gave a special presentation. Because of the cable
34 franchise agreement, both the City and County have engaged in public educational
35 and governmental television. TCI Cablevision was operating channel 10 for a
36 period of time. According to the franchise agreement, when they finish their
37 digital build -out, which is almost done, they will relinquish operation of channel 10.
38 That will revert to an entity to do public access. The City and County Councils
39 created the Community Television Administrative Board (CTAB). They were
40 created to administer the franchise agreements, and oversee this process. His
41 department and the County are providing staff and resources to help facilitate the
42 process. A bid was let for a third -party entity to administer the public access
43 television station. There was no selection. ITSD offered to move it forward by
44 having a joint venture with the County's Information Services Division and the
45 public access entities. They believe public access can be a benefit to the
46 community. It provides government television access and educational services
47 with distance learning and other opportunities. As the technology evolves, it will
Regular County Council Meeting, 10/12/99, Page 1
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be more important to give people access to government and provide the citizens of
Whatcom County and the City of Bellingham access to their legislators.
Since they have begun this process, their objective is to establish
educational and informational TV. The City's employee, Jim Baird, has a vision.
Jim Baird, City of Bellingham, stated he was appointed to head this project
in March. The CTAB appointed the City of Bellingham to be the public access
provider. They are looking into providing work -study programs with the local high
schools and colleges. He met with schools in the area. They are in favor of this
project. Council meetings will also be aired on public access television. Lynn
Barton has been selected as chair of Community Access Television Advisory
Committee (CATAC). This group will help oversee the daily operations of the
station. The station will be operational by mid - November. The playback
equipment for public access will arrive November 9. There will be three -day
training session for four individuals to learn how to create bulletin boards and
multimedia presentations for Channel 10. There will immediately be a government
bulletin board that will announce upcoming meetings for all government
jurisdictions. There will also be Whatcom Transit Authority (WTA) bus schedules.
Government information will also be forthcoming. He questioned what information
the councilmembers would like from the City to help understand what they are
trying to accomplish. Currently, TCI's availability for public access users is
Tuesday through Thursday, from 8:00 a.m. to 5:00 p.m. They will be open from
7:00 a.m. to 10:00 p.m. everyday. They will be located in the old Calvary Temple
building, which will need some remodeling.
Sutter made a suggestion for a future bulletin board. They should create a
report on councilmembers' votes on the issues that they address. Baird agreed.
Snow day information for schools will be included.
Brenner questioned the percentage of programming that will be dedicated to
local programming. Baird stated there is a set of policies and procedures adopted
by the CTAB that will guarantee that first viewership will be locally originated
programs. The timeslots for local productions will be guaranteed. If they fill up
the channels, they can request a second channel. The equipment they are
bringing in will allow playback on four different channels. There is room to grow.
Brenner asked if the channels would change with the cable upgrade. Baird
stated the upgrade is supposed to be complete this month or next month.
Everything that is on the old channel 10 will be moved to either channel 18 or
channel 26. Channel 10 will be specifically for public access.
Brenner asked if there are going to be any other kinds of classes provided,
besides multi- media. Baird stated they would train people on how to produce their
own videotapes. The program will be more intense than what TCI does for their
training. They will also include long- distance learning.
Regular County Council Meeting, 10/12/99, Page 2
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Hoag also requested that the councilmember votes be broadcast. The
agenda could be posted a few days prior to the meeting. Baird stated he will get
together with each of the government entities and teach them how to get
information on the air.
Hoag asked how they determined which meetings would be televised. Baird
stated it depends on who will videotape the meetings. A volunteer could videotape
the meetings, or they could hire someone to do the taping. The budget he is
working with will have some money to offset some of the costs to producers to
videotape the Planning Commission, Library Board, Museum Board, and other
similar meetings.
Hoag stated she was interested in having the Planning Commission meetings
taped.
Dawson questioned who would decide what programming is appropriate.
Baird stated there are guidelines in the policies and procedures. There are some
limitations to that based on the First Amendment rights. There is a three - process
review of any tapes that go on the air. He has first viewership. If he is hesitant to
put something on the air, it will go to the CATAC. If they are still leery, it will go to
the CTAB for final decision.
Brenner also asked that a viewing schedule be broadcast on a daily basis.
Baird stated there are 165 non - profit organizations that want their information
televised, including churches, schools, community boards, and many more. That
issue has already been addressed. There are limitations they have to watch out
for. The organization cannot ask for money. The Federal Communications
Commission (FCC) governs that. He is willing to work with every individual out
there who is interested.
Nelson stated there is a lot of information available that is done by other
mediums. He questioned whether the County could fulfill legal advertising
requirements on this channel. Baird stated they could put information on the
government bulletin board seven days a week.
Nelson asked if it was done without cost. Baird stated the cost would be the
man -hours required to enter the information one time. The information would
then be stored as a data file.
Dawson stated the channel would be Community Access Television 10 (CAT
10).
Anderson explained that the County would need to appropriate an additional
1% tax in the future. This is usually paid for out of the franchise fee. Right now,
the City is at 3% and the County is at 4 %. They will be coming forward with a
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budget that will ask for an additional 1% to be tacked on to that for the
maintenance and operation. That is what pays for making this happen. If there is
any information needed, councilmembers should let him know.
APPROVAL OF MINUTES
APPROVAL OF MINUTES: COMMITTEE OF THE WHOLE FOR
SEPTEMBER 21 AND SEPTEMBER 28, 1999
Imhof moved approval of the minutes.
Motion carried unanimously.
OPEN SESSION
The following people spoke:
Robin Dexter, Purse Seine Vessel Owners, 3726 Broad Street, addressed the
legality of substituting cable for newspaper as the medium for distributing public
notices. Because his household doesn't carry cable television, he wanted cable
service limited to channel 10. Regarding water, he hoped the Council would make
an effort to ensure that the competing resolutions get circulated to all the members
of the Planning Unit. He also hoped the councilmembers would clarify the
distinction between the duties of the Council as the lead entity and the duties the
County has to represent itself as a caucus. The final point, to make that easier,
there should be some effort among the Council and the administration to come to
some very clear cut decision about who exactly they represent. They needn't feel
like the Council represents him. He is comfortable speaking for the environmental
caucus when saying they don't expect the Council to represent them. The statutory
process was set up so that they can represent interests that may be different that
those of elected councilmembers. He appreciated people's discomfort with this
process. It is not the same as all the other statutory and budgetary responsibilities.
The best option they have is to be proactive. Rather than expect decisions and
changes made in the Planning Unit to continually come back to the Council for
approval, the Council should make an effort to be proactive. The Council should
create a policy envelope, within which the County representatives can operate with
some assurance to the other members of the Planning Unit and Initiating
Governments that the County representative speaks on the same basis. From the
standpoint of forward movement, the County Council is now the narrowest part of
the funnel. They are risking the patience of the non - government entities that feel
left out of the process.
Muriel Terry, Drayton Harbor, presented a map to Councilmember Sutter, as
she had previously requested. They sent out a letter and a survey poll, in which
the results were used to create the map. The orange area on the map represents
people who want to be in short term planning area and have a reasonably priced
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sewer. The yellow area represents people who are interested in a no cost sewer.
She didn't have a poll yet from the Burke's, but she talked to Mr. Burke on the
telephone. They wanted the sewer at no cost. The green areas are the people who
don't want sewer at any cost. The white areas on the left side of the map are areas
owned mostly by Trillium Corporation, or are areas Trillium is trying to acquire.
The areas not colored represent the people who did not respond.
Hoag questioned whether the people in the yellow areas wanted to be in a
short -term planning area. Terry stated the people in the yellow areas didn't want
to be in the short -term planning area. There is only one large landowner that
doesn't want to be in a short -term planning area.
Sutter stated it was a good map, and thanked Terry.
Frank James, 3511 Chuckanut, asked if the additional funding for Mr. Mackie
would come up for consideration later in the meeting and if the total amount will
approximate $500,000.
Imhof stated the total amount will be approximately $300,000.
James questioned whether it would be voted on later.
Dawson stated it has already been paid for. It will be voted on later.
James questioned whether the administration is recommending this to the
Council, and the Council is approving over $300,000 in expenses to an out -of -town
attorney.
Nelson stated that got the Council a successful Comprehensive Plan.
James questioned whether the public can comment on the item.
Hoag stated he can comment on it now. He won't have an opportunity later
in the meeting because there isn't a public hearing.
James stated he was offended by spending nearly $300,000 for an out -of-
town attorney when there is highly capable staff in the County. He believed the
Council is manipulating a process and not engaging in a fair, honest, and open
process. That is very unfortunate and disruptive to the community. He asked that
the Council reconsider that additional funding. It would make for a more open
community and open discussion.
Richard Gilda, Jensen Road, expressed his sympathies to Mr. Brown on the
loss of his brother. He prepared his text (Handout on file). When he comes to
speak to the Council he comes as an individual, not as a representative of the
Planning Commission, or any other official group he may belong to. Regarding his
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comments spoken at the Council meeting on September 21, 1999, he was not
speaking as a representative of the Planning Commission. He always introduces
himself as a resident of the Lake Whatcom watershed. The Planning Commission is
made up of many different personalities. This makes a better government. He
objected to the Lake Whatcom Overlay. They must protect the lake.
Brenner stated she never believed Gilda had ever represented himself as a
member of the Planning Commission.
Buck Meloy, commercial fisher in Puget Sound and Alaska, spoke in support
of a resolution against Initiative 696 (AB99 -388). Although farming has
problems, some of which have contributed to the decline of the salmon runs, he
didn't think anyone would seriously entertain an initiative to make farming illegal.
That is what I -696 is trying to do with the other method of harvesting food, food
fishing. They call it ban all nets, but they also include commercial trolling, which is
a method similar to recreational hook - and -line fishing. The only nets exempted are
the ones that enable bait catching for the recreational fishers. He didn't believe in
the sincerity of the supporters of the initiative when they tried to frame it as an
environmental measure. They claim eliminating nets would save the salmon. The
only salmon listed as threatened or endangered by the Endangered Species Act are
those species that aren't subject to commercial fishing in Puget Sound. He
encouraged their support in opposing the Initiative. Others who have spoke against
the initiative include the City of Bellingham, the County Executive, the Port of
Bellingham, Bellingham Cold Storage, and almost all of the regional environmental
organizations.
Cheryl Hershey, Bellingham, thanked the Council for considering the
resolution opposing I -696 (AB99 -388). The previous speaker said it all. The
ban all nets initiative does not ban all nets. A state initiative doesn't have the
power to take away federal treaty fishing rights. Under the Foregone Opportunity
clause, if one group cannot catch their 50% of the harvest, the other group has the
right to file a foregone opportunity claim with the federal government to catch that
uncaught portion. The purpose of that was to not waste the salmon resource. This
initiative does nothing to limit harvest because of that clause. Those salmon will be
caught either by Indian fishermen or sport fishermen. The initiative diverts the
public's attention from the real issues at hand that are habitat, harvest, hatchery
management, and hydroelectricity. The reason they are bringing this to the
Whatcom County Council is because it has a great negative impact on this
community. A 1995 study showed the commercial fishing industry was responsible
for an excess of 3,500 jobs in this community. It also is responsible for over $175
million annually to the local economy. She asked Council to approve the resolution
opposing Initiative 696.
Jay Bornstein, Bornstein Seafoods, asked the Council to support the
resolution opposing I -696 (AB99 -388). This is not just a salmon issue. It is a
food fish issue. It makes a class C felon out of people who harvest food for the
Regular County Council Meeting, 10/12/99, Page 6
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public. There are two other inconsistencies in this ill- conceived initiative. One of
them is that it bans the bait fisher on the ocean while allowing net fishing for
herring in Puget Sound, which is in a threatened state. The second inconsistency is
that this may be the end of recreational fishing also. He read the last sentence
from section one. Recreational fishing is not selective or discriminating. Ten
percent to thirty percent of the by -catch will die. They can make a case that
recreational harvesting is indiscriminate and non - selective. He encouraged the
Council to support the resolution in opposition of I -696 (AB99 -388).
Hoag asked if that same clause could also stop tribal fishing. Bornstein
stated that is a different right. It is a federal right.
Lynn Barton, 1280 W. Bakerview Road, supported Cable Access Television
(CAT) 10, and encouraged more involvement with Cable TV Advisory Board. It is a
process that has been going on for six years. She has been involved from the start.
There is a lot of development that still needs to happen. She encouraged the
councilmembers to have more contact with the board members on the Cable
Television Advisory Board (CTAB). They look to the Council for some guidance.
Their roles need to be improved. There is a level of authority that exists with this
issue. CTAB exists because of the interlocal agreement between the County and
the City of Bellingham. The Community Access Television Advisory Committee
(CATAC) has oversight of the facility. The City of Bellingham Information
Technology Services Department (ITSD) is the one that are developing the dynamic
of what is happening at the facility. She wanted to ensure that everyone at each
level has good communication.
(Clerk's Note: End of tape 1, side A.)
Barton stated it has been a positive year since ITSD stepped in. At this point,
they need to create the footprint for what will happen in the future. She asked for
the Council's support for the CTAB members.
Nelson asked about the concern regarding the roll of the CTAB. He believed
it was outlined clearly in the agreement with TCI. Barton stated she wanted a
better sense from the CTAB what their roles are.
Nelson asked Barton if she was concerned about their objectives. Barton
stated, from a personal standpoint, she is.
Nelson suggested Councilmember Brenner schedule this issue for the Public
Works Committee.
OTHER BUSINESS
17. RESOLUTION OPPOSING INITIATIVE 696 (AB99 -388)
Regular County Council Meeting, 10/12/99, Page 7
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Dawson read the resolution into the record.
Imhof moved to recommend approval.
Hoag stated she was in favor of the resolution, and wanted to add additional
language. As the resolution is now, it sounds like the Council is opposed only
because of money. That is not the only reason they are opposed. They are also
opposed because it doesn't solve the salmon problem. She moved to add,
"WHEREAS, no salmon would be saved by Initiative 696, due to the foregone
opportunity clause."
Motion to amend carried.
Motion to approve carried unanimously.
CONSENT AGENDA
Nelson reported for Finance and Administrative Services Committee and
moved approval of items one through seven. Item number three is the same
amount as last year. The committee amended item number six.
Hoag withdrew item six from the consent agenda.
Regarding item number three, the dollar amount is lower than last year
because the test results of the Cedarville dump site show that the leachate has
been cleaner. They can reduce the number of tests that are required for the 20-
year monitoring program.
Brenner moved to remove item two.
Motion to approve items one through five and seven carried unanimously.
1. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO A
CONTRACT BETWEEN WHATCOM COUNTY AND THE DEPARTMENT OF
SOCIAL AND HEALTH SERVICES FOR NINE PROGRAMS INTENDED TO
PROVIDE PUBLIC SAFETY AND OFFENDER ACCOUNTABILITY,
HOLDING JUVENILE OFFENDERS ACCOUNTABLE IN ORDER TO
REDUCE RECIDIVISM AND IMPROVE THE COMPETENCIES OF AT -RISK
YOUTH, IN THE REIMBURSABLE AMOUNT OF $653,527 (AB99 -383)
2. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO A
CONTRACT BETWEEN WHATCOM COUNTY AND THE DEPARTMENT OF
SOCIAL AND HEALTH SERVICES FOR THE PROCESSING OF AT -RISK
YOUTH, CHILDREN IN NEED OF SERVICES, AND TRUANCY PETITIONS,
UNDER E2SSB 5439 (THE "BECCA BILL "), IN THE AMOUNT OF
$212,523.73 (AB99 -387)
Regular County Council Meeting, 10/12/99, Page 8
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Brenner asked Steve Paus from Juvenile Court Probation about not spending
the money on truancy.
Steve Paus, Juvenile Court Probation, stated the criminal justice planning
committee is in the process of changing that portion. They told the school
superintendents that the criminal justice system does not have the manpower to
process all the truancy cases. They will be working with the school district to
reduce the amount of work required on truancies. The system still has to accept
the petitions, but they are working to change the process. Staff that is dedicated to
the number of truancy petitions will be reduced.
Brenner questioned whether the grant requires a certain percentage of the
money be dedicated to truancy. Paus stated they do not. The grant requires they
must process the petitions. They are looking at alternatives to processing petitions.
Hoag moved approval.
Motion carried unanimously.
3. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO A
CONTRACT BETWEEN WHATCOM COUNTY AND BEK ENGINEERING
FOR CEDARVILLE LANDFILL MONITORING SERVICES AND Y ROAD
LANDFILL HYDROGEOLOGIC INVESTIGATION, IN THE AMOUNT OF
$50,179.20 (AB99 -393)
4. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO A
GRANT AGREEMENT BETWEEN WHATCOM COUNTY AND THE
DEPARTMENT OF ECOLOGY FOR THE SOUTH FORK NOOKSACK RIVER
COMPREHENSIVE FLOOD HAZARD MANAGEMENT PLAN — PHASE I,
INCLUDING DATA COLLECTION, MAPPING, MEANDER LIMIT
ESTABLISHMENT AND HYDROLOGIC ANALYSIS, GRANT FUNDING IN
THE AMOUNT OF $125,000 AND COUNTY SHARE OF $42,000, FOR A
TOTAL PROJECT COST OF $167,000 (AB99 -394)
S. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO A
CONTRACT AMENDMENT BETWEEN WHATCOM COUNTY AND
WHEELER CONSULTING GROUP, INC. TO PROVIDE FOR TWO
ADDITIONAL SETS OF REVISIONS TO THE LOWER NOOKSACK RIVER
CFHMP FOR UPDATING OF THE DOCUMENT TO REFLECT ONGOING
PLANNING ACTIVITY AND TO INCORPORATE FINAL REVISIONS
SUGGESTED BY THE FLOOD CONTROL ZONE DISTRICT ADVISORY
COMMITTEE AND THE DEPARTMENT OF ECOLOGY, IN THE AMENDED
AMOUNT OF $16,730, FOR A TOTAL REVISED CONTRACT AMOUNT OF
$78,825 (AB99 -395)
Regular County Council Meeting, 10/12/99, Page 9
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6. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO AN
INTERLOCAL AGREEMENT BETWEEN WHATCOM COUNTY AND THE
CITY OF BELLINGHAM TO PROVIDE FOR SALMON RECOVERY
PLANNING FOR BOTH THE CITY OF BELLINGHAM AND OTHER
INCORPORATED CITIES WITHIN WHATCOM COUNTY, IN THE FUNDED
GRANT AMOUNT OF $70,000 (AB99 -396)
Nelson moved approval.
Hoag moved to add to packet page 149:
"III. City of Bellingham Responsibilities: Bellingham hereby agrees,
within the incorporated areas, to:"
Motion to amend carried unanimously.
Hoag stated it was odd they are delegating this responsibility to the City of
Bellingham. This is salmon money. They don't have any endangered salmon in
their jurisdiction. She preferred the County handled this and not delegate it. If it is
delegated to a city, it should be delegated to a city that has endangered salmon
within its jurisdiction.
Motion to approve carried 6 -1 with Hoag opposed.
7. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO A
CONTRACT BETWEEN WHATCOM COUNTY AND SYMPRO, INC. TO
PROVIDE A TREASURY WORKSTATION SYSTEM FOR USE IN THE
TREASURER'S OFFICE IN THE CONTRACT AMOUNT OF $88,000 (AB99 -
397)
PUBLIC HEARING
1. ORDINANCE AMENDING ORDINANCE 84 -335 (18), STOP SIGNS AT
HARKSELL AND WOODLAND ROAD (AB99 -370)
Jeff Monsen gave a staff report and stated he had photographs of the
intersection. Monsen stated the ordinance would remove the sign that allows a free
right turn without stopping. In this situation, there is a "T" intersection. In the
past, there was a shift from a single stop sign intersection to three stop signs at the
intersection. At that time, there was a request to allow people to turn right without
having to stop, due to the traffic volume. Because of changing traffic patterns, that
permissive move should be removed, and all vehicles should stop in all three lanes.
Brenner stated she brought this forward. She received complaints about the
Harksell Road, and went to the location. When one is driving east on Harksell, they
think everyone is going to stop, but there isn't even a yield sign. She wanted to
see copies of the traffic patterns that instigated that current signage. The rumor
going around was that a County official lived in the area and was in a hurry to get
home. Monsen stated he worked in the traffic division of Whatcom County in 1984.
He didn't recall the circumstances surrounding that process. He was certain it
wasn't due to a County employee that lived up the road.
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Brenner asked if there is a sign like this anywhere in the county. Monsen
stated there was not. He has seen a sign like this elsewhere in the state.
Hoag stated the ordinance specifies it being a three -way stop intersection
with no free turning movements. She asked about the traffic coming into the "T"
and whether they are required to stop. Monsen stated there are three stop signs at
the intersection now. One of the stop signs has the permissive sign attached to it.
This ordinance would remove the permissive sign and it would function as a three -
way full stop.
Hoag asked about the intersection of Smith and Hannegan. She questioned
whether the Smith Road was a State road. Monsen stated it is not. Smith and
Hannegan are both County roads.
Hoag asked that a light be installed at that location. If one heads toward
Lynden during rush hour, there is a backup for miles.
Brenner stated she would bring the item forward at Public Works Committee.
Monsen stated signal warrants have been met there. That will be likely to
occur sometime in the next couple of years.
Hoag stated it needs to be done sooner than in the next couple of years.
Brenner thanked the Public Works Department. She was impressed with how
quickly the ordinance was introduced.
Dawson opened the public hearing and, hearing no one, closed the public
hearing.
Imhof moved to approve.
Motion to approve carried unanimously.
2. ORDINANCE AMENDING WHATCOM COUNTY CODE TITLE 20,
REGARDING SITE SPECIFIC REZONES, MASTER PLANS, AND SITE
PLAN AMENDMENTS (AB99 -331)
Sylvia Goodwin, Planning and Development Services Planning Division
Manager, gave a staff report and stated this ordinance would establish a procedure
for site specific rezones processed outside of the regular zoning docket process.
Site specific rezone would only apply if no Comprehensive Plan amendment is
required, there is a specific project associated with the rezone, and all the property
owners within the area support the rezone. Those are the criteria. The process
would be that it would go to the Hearing Examiner rather than the Planning
Commission. The County Council would have the final say on the rezone. The
ordinance also establishes a procedure for concomitant rezones, which the County
Council has done over the last few years. There has never been an official
procedure for concomitant rezones. It would set up a procedure for rezone
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agreements. There is a related amendment that would set up a procedure for
master plans and would revise the Hearing Examiner's duties. It will come forward
as a separate ordinance, or could be added to this ordinance. She asked the
Council to hold this item until the next meeting in order to address the section on
master plans.
Sutter stated that included in this ordinance is chapter 20.88 regarding major
project permits. Those sections need to come forward either with this or
separately.
Goodwin stated the Planning and Development Committee recommended
several changes. She read committee amendments:
1. Packet page 182, section 20.90.020(1)(a) Last sentence: "The Council may
grant up to five (5) two (2) one -year extensions if the applicant demonstrates
hardship or substantial progress..." This would change the amount of allowable
annual extensions from five to two. The committee directed staff to work on
additional wording if this amendment is approved.
2. Packet page 183, section 20.90.030(2)(b) "That the proposed amendment to
the zoning beaFs a substantial Felatienship is proven by clear and convincing
evidence to not have a negative impact to public health, safety, morals,..." Legal
staff questions the legality of this proposed amendment.
Karen Frakes, Senior Civil Deputy Prosecutor, stated that language used is
straight out of case law that goes back a long time. The fundamental test for
approval of a rezone under state and federal law is whether it "bears a substantial
relationship to public health, safety, and general welfare." They can't change state
law by changing the words in the ordinance.
Brenner stated this is the problem they have when they begin tinkering with
site specific rezones. She questioned how it could be illegal to ensure that this will
not negatively impact the public's health and safety, as proven by clear and
convincing evidence.
Frakes stated they may be able to include additional language, but they can't
get rid of the test that is well - established under state law. It is established under
state law what a person needs to show in order to get a rezone.
Brenner asked Frakes to define the phrase, "bears a substantial relationship
to public health, safety, morals..." Frakes stated it is a test that is reapplied
constantly by the court of appeals and the Supreme Court.
Hoag asked if the County could be stricter than the state law. Frakes stated
she would like to spend some more time on it. They are talking about
constitutional rights. There is a general test under state law when someone can
meet the test for a rezone. They are talking about property rights and due process.
She wasn't sure of the parameters of the County's ordinance.
Goodwin suggested holding the public hearing during this meeting, then
continuing it to the committee. Staff would have more time to research that issue
Regular County Council Meeting, 10/12/99, Page 12
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and could draft up some other language that accomplishes the intent of the Council.
She continued with the amendments from committee:
3. Packet page 183, section 20.90.030(2)(d)(ii) "Not create exeessive significant
additional requirements at public cost for public facilities and services, and will
not be detrimental to the economic welfare of the community. Cumulative
effects of recent rezones in the area will be considered." The idea is that, if
something adds traffic to a road or a demand for public safety, then they would
want to review.
4. Packet page 183, section 20.90.030(6) "Concomitant rezone shall net be used is
not generally necessary for a rezone to agriculture, commercial forestry, and
rural forestry districts..."
Dawson questioned whether the third item was policy and should be
discussed and addressed within the context of the Comprehensive Plan. Goodwin
stated the Comprehensive Plan would give guidance because it sets the planned use
of an area.
Goodwin recommended this be continued to the next hearing. The current
process is an annual opportunity to apply for a project. It has been a year and a
half, and the County is still working on those 21 items. It may be even longer. If
someone had a specific project that required a rezone before it could be built, then
their financing would have been long gone by now. The purpose of this is to allow
someone to do something outside of the project.
Nelson asked if this has been reviewed in regard to SEPA review. Goodwin
stated there has been a legal review. They did a SEPA determination in review of
the entire document. They haven't compared this wording to the SEPA.
Brown stated they should make sure the wording is consistent with SEPA.
Goodwin stated she would check on that.
Dawson opened the public hearing and, hearing no one, closed the public
hearing.
Sutter moved to continue the public hearing for two weeks.
Motion carried unanimously.
Sutter moved to continue the public hearing for two weeks, refer to
committee, and add the sections that were omitted from this version, which dealt
with the master plan.
Motion carried unanimously.
3. ORDINANCE AMENDING WHATCOM COUNTY CODE 2.86, AMERICANS
WITH DISABILITIES ACT GRIEVANCE PROCEDURE AND COMPLIANCE
COMMITTEE (AB99 -362)
Dana Brown - Davis, Clerk of the Council, gave a staff report and stated this
amendment only staggers the members' terms.
Regular County Council Meeting, 10/12/99, Page 13
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Dawson opened the public hearing and, hearing no one, closed the public
hearing.
Brenner moved to approve. She questioned whether the Council could
acknowledge all the work Kurt Dessauer has done on this issue.
Dawson stated it is nice to acknowledge him, but it is not appropriate for the
ordinance.
Imhof suggested a resolution be created to show appreciation.
Nelson agreed with Brenner. It is not going to have a significant effect if
they acknowledge Dessauer in the ordinance.
Karen Frakes, Senior Civil Deputy Prosecutor, stated it would not have any
illegal effect.
Nelson stated that, considering the amount of work Dessauer had done in his
life in dealing with the issues and helping the County, it would be appropriate and
he would support it.
Brenner moved to amend to include "WHEREAS, Kurt Dessauer spent a great
amount of time and effort on working with the disabled on this issue."
Nelson stated they agree on the intent of the language. They could put
together wording that doesn't significantly alter the ordinance. The wording could
be included at the beginning of the ordinance in recognition of Kurt Dessauer's
efforts in ADA compliance issues. The Council can work with administration to
come up with the correct language that would reflect their intent.
Dewey Desler, Deputy Administrator, agreed with the proposed addition.
The County Executive issued a proclamation before he passed away and gave it to
him, personally thanking his efforts.
Nelson suggested they move the ordinance forward with the understanding
they would include language in memory of Kurt Dessauer.
Brenner agreed with Nelson's friendly amendment.
Dawson stated the motion was to dedicate the ordinance to Kurt Dessauer.
Motion to amend carried unanimously.
Motion to approve as amended carried unanimously.
OTHER ITEMS
1. ORDINANCE AMENDING ORDINANCE 98 -67, AUTHORIZING EXCESS
CASH IN CERTAIN FUNDS TO BENEFIT THE SAME AND AUTHORIZING
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ALLOCATION OF INTEREST INCOME TO PROGRAMS WHERE
GOVERNING LAW OR GRANT TERMS REQUIRE IT (AB99 -360)
Nelson reported for Finance and Administrative Services Committee and
moved approval.
Motion carried unanimously.
2. ORDINANCE ESTABLISHING THE WHATCOM COUNTY INVESTMENT
POOL FUND (AB99 -361)
Nelson reported for Finance and Administrative Services Committee and
moved to approve. They felt that, for the administration and Treasurer's office, it
was easier if it was separate from the general fund.
Motion carried unanimously.
3. ORDINANCE AMENDING THE 1999 BUDGET, REQUEST NO. 8 (AB99 -
371)
Nelson reported for Finance and Administrative Services Committee and
moved to approve. Those items are for Parks in the amount of $35,000 for the
Black Mountain Forestry Center. This was State Department of Community, Trade,
and Economic Development (CTED) money that was previously discussed. There
was also an item from Health and Human Services in the amount of $2,477. There
were two items from the Sheriff. One item, regarding the marijuana eradication
project, had a correct amount of $6,000. That change needed to be reflected in the
budget total, which should be $79,477.
Dawson stated Wayne Beech recently passed away and was a proponent of
the Black Mountain Forestry Center. It is a loss to the community.
Brown stated this would not be happening without Wayne Beech.
Motion carried unanimously.
4. REQUEST AUTHORIZATION FOR CONTRACT AMENDMENT FOR
PROFESSIONAL SERVICES WITH OWENS DAVIES MACKIE FOR LEGAL
REPRESENTATION ON GROWTH MANAGEMENT HEARINGS BOARD
APPEALS (AB99 -325A)
Nelson reported for Finance and Administrative Services Committee and
moved to approve.
Hoag stated the Council took official action at the last meeting and amended
the contract to insert language about this being the final amount approved. That
language is not included. The amendment to the contract passed, but the contract
failed. If the contract comes forward, it has to have the amendment included.
Regular County Council Meeting, 10/12/99, Page 15
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Dana Brown - Davis, Clerk of the Council, stated once an amendment was
made and the contract failed, the amendment is no longer attached to the newly
proposed contract.
Sutter moved to amend to add language, "Section three of this agreement
shall be amended to provide for an increase of $10,000 in maximum consideration,
for a final total maximum consideration in the amount of $35,000.00."
Motion to amend carried unanimously.
Brenner stated she was opposed to approval. She questioned the exact
amount that has been spent.
Imhof stated it is $300,000.
Hoag stated she had heard higher figures.
Dawson stated Mr. Mackie had provided services to a number of different
counties. He is an expert in this area. The County had won all of these cases. She
didn't like spending the money. It was unfortunate that members of the
community continued to litigate.
Nelson stated they were usually the ones in opposition.
Brenner stated the Council gets legal opinions from staff on Growth
Management during every step of the way. If the legal staff is comfortable enough
to give legal opinions, then the Council needs to believe the staff is comfortable
enough to defend those opinions. This has been going on too long.
Hoag stated that when she began her membership on the Council in January
1998, she attended a meeting during which the Council was told the request for
payment of his services then would be the final amount requested. However, that
had been repeated continuously. It would be different if Mr. Mackie was actually
arguing the pros and cons of Growth Management. This $10,000 is for him to do
legal manipulations and maneuvering to not allow members of the public to be able
to bring their case to the judges. It isn't appropriate for taxpayers dollars to legally
maneuver other taxpayers out of their day in court. She did not approve of this.
Dawson stated this might not be an appropriate conversation. There is an
attorney that has rendered services for the County. The County has to pay him.
That is the bottom line.
Brown stated he spent two years working on the Comprehensive Plan. They
listened to hundreds of people. There was a lot of compromise built into the
Comprehensive Plan. There were a few people that were not willing to compromise
on any issue. Because of that, and because of the fact they have access to one of
the best litigators in the State of Washington, on behalf of the environmental
community, it required the County to stand up for the people who participated and
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compromised. The County had to have some help to defend that plan that was a
product of the community. The Council has been torn apart in the newspaper and
media because it sounds as if the Council is the one going to court and hiring an
expensive attorney. If they look at where this comes from, they need to defend
what was a legal process and a good process. Also, at the time this started, there
were a lot of requests for additional staff in the Prosecuting Attorney's office and
elsewhere in the County departments. They were overworked. The Council has
been subject to a lot of false allegations. It is unfortunate because those
allegations are coming from those people who refused to do any compromise at all.
He fully supported the request.
Nelson stated he wished they didn't have to hire an attorney. He would have
liked to use the County's attorney. Whenever the Council received a another
request for payment of Mackie's services, he would talk with the Prosecuting
Attorney and ask specifically if the services were ones that the County's attorneys
could handle. Each time he was assured that this was something that needed Mr.
Mackie's support on. If this is something that is important to the County and the
citizens, then they needed to have Mr. Mackie. Mr. Mackie also spent a lot of time
with the Council, leading the Council through the process. A lot of communities had
to go back and revamp their plans because they failed to accomplish certain tasks
that the County accomplished. That would have cost a lot of money as well. It's
too bad people in the community with special interests had to disagree. They had
the right to that disagreement, but the County had a responsibility to ensure it
upheld any law to the best of its ability.
Hoag stated this is above and beyond the contract the County had with Mr.
Mackie. The County is not obligated to pay for this. The point of what was being
argued was whether or not the County is adequately protecting the resources and
water, as is required under the Growth Management Act. No one thinks that is
frivolous. Everyone in Whatcom County wants to ensure the County is adequately
protecting resources and water. Those are the issues being argued in court.
Dawson stated Prosecutor McEachran is proposing this. He would not
propose to pay for something the County did not contract for.
Imhof stated the County is obliged to pay because it took the services. If it
went to a court of law, they would pay it a number of times over. He thanked Mr.
Mackie for the work he had done. He bailed the County out of a number of fires.
Whatcom County took the high ground. It challenged the issues from the Growth
Board and other issues that were incorrect. The County continued to win. The
County built a Comprehensive Plan on these winning foundations. When the
Comprehensive Plan had three appeals, not 63 appeals. Three hundred thousand
dollars sounds like a lot of money, but other counties who did not take this road are
looking into court costs well in excess of $300,000 because they have to redo their
comprehensive plans. He again thanked Mr. Mackie.
Brenner disagreed with the implication this is payment for services the
County requested. This was service that was rendered without Council authority.
They came to the Council after the fact. She did not believe the Council should be
Regular County Council Meeting, 10/12/99, Page 17
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responsible for unauthorized services and expenditures. It is not right and sets bad
precedent. Last time this was done, it was over $400,000 for unauthorized
expenditures on a sewage lagoon that shouldn't have been done.
Motion carried 5 -2 with Brenner and Hoag opposed.
S. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO AN
INTERLOCAL AGREEMENT BETWEEN WHATCOM COUNTY AND THE
LUMMI INDIAN BUSINESS COUNCIL FOR THE LUMMI SHORE
ROAD / LUMMI VIEW DRIVE RESTORATION PROJECT PHASE IV, WITH
THE COUNTY'S SHARE IN THE PROJECTED AMOUNT OF $600,000
(AB99 -355)
Nelson reported for Finance and Administrative Services Committee and
moved to approve. In addition, there was a document regarding the agreement on
fee land right -of -way purchases still being in County control.
Dawson stated the idea was that no subcontracts will be let until the transfer
of rights -of -way on fee lands are all in County jurisdiction.
Hoag moved to add language to section III(B) on page 139, "The County is
responsible for negotiating and funding fair market value purchase of any fee
simple property necessary for this project."
Dawson stated that was discussed. This is a contract dealing with the fee
lands of the road. It is unnecessary and would require going back and getting the
other jurisdiction to approve.
Motion to amend failed 1 -6 with Hoag in favor.
Hoag stated it wasn't good to sign contracts that are unclear.
Motion to approve carried unanimously.
6. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO APPROVE
CHANGE ORDER NO. 2, BETWEEN WHATCOM COUNTY AND ELITE
ELECTRICAL, FOR ELECTRICAL INSTALLATION OF THE NEW
EMERGENCY GENERATOR AND A TRANSFER SWITCH WITH AN 800
AMP DISCONNECT, IN THE AMOUNT OF $10,490.03 FOR A TOTAL
CONTRACT AMOUNT OF $41,153.09 (AB99 -368)
Nelson reported for Finance and Administrative Services Committee and
moved to approve. There was some discussion and concern about whether or not
the original bid contained the authorization for the installation. It did not. All it
pertained to was the actual purchase of the generator.
Motion carried unanimously.
Regular County Council Meeting, 10/12/99, Page 18
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7. ORDINANCE AMENDING WHATCOM COUNTY CODE, 20.84.240,
APPEALS, TO ADDRESS REFUNDS FOR APPEALS OF ADMINISTRATIVE
DECISIONS AND CODE VIOLATIONS (AB99 -366)
Sutter reported for Planning and Development Services Committee and
stated the committee moved approval with one amendment to page 175, on the
last line, "The appeal fee on a code violation will be refunded if the appellant can
prove by clear and convincing evidence that a violation did not occur." She so
moved.
Hoag stated legal staff recommended this. When the Council approved
refunding appeal fees if someone was successful in their case, they didn't make it
clear that one would only get their refund if a violation did not occur. The Planning
Department asked that this be clarified.
Motion to amend carried unanimously.
Motion to adopt carried unanimously.
The rest of the items scheduled for Planning and Development Committee
were held in committee. There is a public hearing scheduled for the lot
consolidation ordinance and the harvest activity in Rural Forestry /Commercial
forestry ordinance.
Hoag stated the item regarding the definition of aquaculture came forward
from the committee.
8. ORDINANCE ADOPTING AMENDMENTS TO WHATCOM COUNTY CODE
TITLE 20.80, SUPPLEMENTARY REQUIREMENTS (AB99 -376)
9. ORDINANCE ADOPTING AMENDMENTS TO WHATCOM COUNTY CODE
TITLE 20.82, PUBLIC UTILITIES (AB99 -377)
10. ORDINANCE ADOPTING AMENDMENTS TO WHATCOM COUNTY CODE
TITLE 20 (VARIOUS SECTIONS) REGARDING PERSONAL STORAGE
BUILDINGS (AB99 -378)
11. ORDINANCE ADOPTING AMENDMENTS TO WHATCOM COUNTY CODE
TITLE 20,97, DEFINITIONS (AB99 -379)
Sutter reported for Planning and Development Services Committee and
moved approval.
Brenner stated this covers the concern in the Lake Whatcom watershed that
it is commercial aquaculture. It is not for the rest of the County.
Regular County Council Meeting, 10/12/99, Page 19
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Hoag stated this definition is for countywide. It defines aquaculture. In the
Lake Whatcom watershed, the committee allowed aquaculture if it is a private, non-
commercial pond that is approved by the State Department of Fish and Wildlife
(DFW), to prevent trash species from getting into Lake Whatcom. However, that
has nothing to do with this definition. The existing ponds would be grandfathered
in.
Nelson questioned whether that would include ponds that have no outlet.
Sutter stated it would if it was in the Lake Whatcom watershed.
Nelson stated he believed the intent was to protect the watershed from trash
fish getting into it. If an individual in the watershed had a pond without an outlet,
then they would have to go through the DFW.
Sutter stated DFW would approve it if it didn't have an outlet.
Nelson asked how they know that, and if this is normally done in other areas
of the county.
Sutter stated the point to argue will be when the Lake Whatcom overlay
development regulations come before the Council.
Hoag stated this is just a definition of what aquaculture is.
Motion carried unanimously.
12. ORDINANCE ADOPTING AMENDMENTS TO WHATCOM COUNTY CODE
TITLE 20.85, PLANNED UNIT DEVELOPMENTS (AB99 -380)
13. ORDINANCE ADOPTING AMENDMENTS TO WHATCOM COUNTY CODE
TITLE 20 (VARIOUS SECTIONS) REGARDING ADULT FAMILY HOMES
AND CHILDCARE FACILITIES (AB99 -381)
14. ORDINANCE ADOPTING AMENDMENTS TO WHATCOM COUNTY CODE
TITLE 20.97, TO ADD A DEFINITION FOR "AQUACULTURE"
(AB99 -382)
Sutter reported for Planning and Development Services Committee and
stated this item was withdrawn.
15. ORDINANCE AMENDING WHATCOM COUNTY CODE 20.89, DENSITY
TRANSFER PROCEDURES (AB99 -386)
16. ORDINANCE AMENDING WHATCOM COUNTY CODE TITLE 20.34,
REGARDING LUMMI ISLAND RR -1 DISTRICTS (AB99 -330)
Regular County Council Meeting, 10/12/99, Page 20
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Sutter stated this should have been in Planning and Development Committee
for a recommendation.
Nelson moved to refer to Planning and Development committee for the next
meeting.
Motion carried unanimously.
18. REQUEST CONFIRMATION OF THE COUNTY EXECUTIVE'S
APPOINTMENT OF JOHN E. POWERS, AS THE DIRECTOR OF JUVENILE
SERVICES, AS SET FORTH IN THE WHATCOM COUNTY HOME RULE
CHARTER, SECTION 3.23 (AB99 -399)
Nelson moved approval.
Dewey Desler, Deputy Administrator, explained that Mr. Powers is not due to
arrive until the beginning of November.
Motion carried unanimously.
19. REQUEST CONFIRMATION OF THE COUNTY EXECUTIVE'S
APPOINTMENT OF MEMBERS OF THE MARINE RESOURCES
COMMITTEE AND, FOR COUNCIL INFORMATION, NAMES OF THE
INDIVIDUALS APPOINTED BY THE REPRESENTATIVE INTERESTS AS
EX- OFFICIO MEMBERS OF THE COMMITTEE (AB99 -400)
Dawson questioned the number of members to be appointed to the
committee.
Hoag stated the number is nineteen.
Dawson stated there were eleven members listed.
Hoag stated there were fourteen, plus the Tribes.
Imhof moved approval.
Sutter questioned whether the Nooksack Tribe, Lummi Tribe, Whatcom
County elected official, City of Blaine elected official, and City of Bellingham elected
official were all ex officio members.
Hoag stated they were not ex officio members.
Motion carried unanimously.
Regular County Council Meeting, 10/12/99, Page 21
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Nelson asked if the elected official positions were appointed annually.
Hoag stated she did not know. She thanked the people that volunteered to
serve on the committee. There will be statewide training for the committee
members in November.
Dawson stated the credentials of all the volunteers are very impressive.
INTRODUCTION ITEMS
Imhof moved to accept the Introduction Items.
Sutter questioned whether there was an item to be introduced for the
Planning and Development Committee.
Sylvia Goodwin, Planning and Development Services Planning
Manager, stated the item discussed in committee was regarding defining
setbacks from adjacent right -of -way, Planning Department file number 56-
98:ZT. She suggested bringing that forward at the next meeting. Also, she
asked if the public facilities zoning regarding Recreational Open Space (ROS)
had been introduced. If so, they've introduced all the zoning docket items.
1. ORDINANCE AUTHORIZING THE CREATION OF A WHATCOM COUNTY
WATER CONSERVANCY BOARD AND ESTABLISHING WHATCOM
COUNTY CODE 2.23 (AB99 -389)
2. ORDINANCE AMENDING THE 1999 BUDGET, REQUEST #9 (AB99 -401)
3. RESOLUTION EXTENDING THE CURRENT WHATCOM COUNTY FLOOD
CONTROL ZONE DISTRICT FUNDING MECHANISM (AB99 -392)
OTHER BUSINESS
There was no other business.
REPORTS AND OTHER ITEMS FROM COUNCIL MEMBERS
Imhof stated he will be attending the County Road Administration Board
(CRAB) board meeting on Thursday and Friday, to try and get more money for
more County road projects.
Nelson stated the budget hearings will be on October 21 and 28 from 9:00
a.m. to noon and on November 2 from 9:00 a.m. to 2:00 p.m.
Dawson stated they also received a packet of information for the Health
Board meeting on Tuesday, October 19.
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Hoag stated the Energy Facility Site Evaluation Council ( EFSEC) met on
Monday. The Sumas energy plant is revising its application. They are in the
process of scoping for the Environmental Impact Statement (EIS) now. They
anticipate the completed application will be coming forward to EFSEC in January.
Brenner stated that Wayne Beech worked on Black Mountain project and East
County Economic Development Plan. She suggested a dedication be included in
either of those projects.
Sutter stated there would be a portion of the Black Mountain Forestry Center
project that will be dedicated as his memorial.
Brenner stated she would bring a resolution forward.
Brown thanked fellow councilmembers and staff for support during the last
couple of weeks.
Nelson stated they need to make assignments for canvassing. He
volunteered for Tuesday.
Brown stated he would take a day.
ADJOURN
The meeting adjourned at 9:10 p.m.
Jill Nixon, Minutes Transcription
These minutes were approved by Council on , 1999.
ATTEST: WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Dana Brown - Davis, Council Clerk Marlene Dawson, Council Chair
Regular County Council Meeting, 10/12/99, Page 23