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WHATCOM COUNTY COUNCIL
Planning and Development Committee
August 10, 1999
The meeting was called to order at 3:05 p.m. by Committee Chair Kathy
Sutter in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Also Present:
Connie Hoag
Barbara Brenner
Absent:
None
DISCUSSION AND RECOMMENDATIONS TO COUNCIL
ADDENDUM:
EMERGENCY ORDINANCE IMPOSING A MORATORIUM ON
APPLICATIONS FOR LAND USE PERMITS FOR WIRELESS
COMMUNICATIONS FACILITIES (AB99 -317)
Michael Knapp, Planning and Development Services Director, stated there are
33 Conditional Use Permit (CUP) requests that have appeared since 1996 regarding
wireless communication towers. Thirteen have been submitted this year. They
have received two today and will maybe receive two tomorrow. The 13 CUP's are
25% of the CUP applications received this year. Some of the related issues have to
do with siting, setbacks, and having controls over how they are sited.
Sutter asked if there are any State or federal controls. Knapp stated there
are. They don't address buffering, setbacks, or location. There would need to be
more policy on where they will go.
Sutter was unclear of the nature of the emergency as a health related issue.
Knapp stated there is a question related to the psychological effect of a cell tower
located in a residential area.
Sutter asked where they are currently being proposed to be located. Knapp
stated one is to be located next to someone on Mt. Baker Highway. It is a
Conditional Use Process, but there are no criteria. There are federal rules.
Brenner stated it couldn't be denied because the County has no criteria for
denying them.
Sutter stated that if there are no conditions and they can't deny it, then it
might as well be a permitted use. She questioned why it was made a conditional
use. Knapp stated they made it a conditional use, in part, to have some control
over setbacks, but nothing has been done to create criteria.
Sutter questioned what the federal regulations address. Knapp stated they
cover the amount of power and everything related to transmitting the signals.
Planning and Development Committee, 8/10/99, Page 1
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Sutter asked if they could be sited in areas other than residential. Knapp
stated they should be distanced from existing residential areas.
Hoag stated they need to look at where they would be appropriate, which is
why they need to not rush this. There aren't just psychological health reasons that
could be an effect. There could also be medical effects. They need to stop the
process, do the review, and then determine where they would be appropriate and
under what criteria and buffering requirements.
Brenner stated she received information from the County's Health Officer
about electromagnetic fields (EMFs) and cell tower waves. There is controversy
about health effects. This is only to give the County breathing room to give the
Council time to create criteria.
Hoag stated it is the Council's responsibility to protect the citizens.
Sutter stated she only wanted to ensure that an emergency exists.
Karen Frakes, Senior Civil Deputy Administrator, stated they could do the
moratorium without doing an emergency ordinance, through a regular introduction
process. The charter requires that they make specific findings to the public's health
and safety.
Sutter stated the County is liable to the cell tower people if they can't justify
their reasons for declaring an emergency.
Brenner suggested that one finding is that the tower is big and heavy and, if
it falls over, it could damage the neighbor's property.
Sutter asked for the federal regulations regarding anchoring the tower.
Knapp stated they have to be well anchored. The point is there is a possibility that
something could happen.
Brenner stated this is equally or more likely to disturb the public peace as the
adult bookstores.
Sutter asked about towers falling down. Knapp stated it depends on the
siting of the tower.
Hoag stated the cell towers are new technology and the effects are being
studied currently. When x -ray technology was new, there were not any precautions
taken because no one knew that the technology was hazardous. She would rather
have liability for being cautious.
Nelson stated cell towers have been around a long time. There is no
indication of harm to justify calling for an emergency standard.
Brenner stated it is a public peace issue. This is something that is extremely
difficult for a lot of people.
Planning and Development Committee, 8/10/99, Page 2
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Knapp stated there is justification. Numerous jurisdictions have used the
lack of criteria as justification for creating emergency ordinances. Lack of criteria
for evaluating what is to be done is considered a valid reason to put a hold on the
applications as they come through. He had been through a number of moratoriums
through his position with the City of Sea -Tac.
Frakes stated they don't want to mix moratorium and emergency issues.
There is a basis for a moratorium. The question is whether this is an emergency
under the Whatcom County Charter. The other jurisdictions that have found
emergencies are working under different rules.
Hoag moved to recommend to the full Council.
Brenner wanted to see the ordinance amended to reflect that it was proposed
and sponsored by her and also Connie Hoag. It did have all the staff's approval.
Sutter read from the Whatcom County Charter, section 2.40.
Hoag stated the preservation of public peace and protecting health and
safety are allowable reasons to make it an emergency ordinance.
Sutter stated it would be more acceptable to put a cell tower moratorium in
residential areas or within a certain distance from a residence. However, it would
not be appropriate to create a moratorium everywhere. They may be able to define
it as an emergency in several areas such as residential or agricultural, but not
forestry areas.
Frakes suggested they could do an emergency ordinance for certain areas,
then adopt the moratorium in September that would apply to everything.
Hoag called for the question.
Brenner supported Sutter's suggestion.
Nelson asked how many applications there are. Knapp stated there are 13
this year, which is more than Ya of all CUP applications. They have more
applications coming in daily.
Brenner stated every other county surrounding Whatcom County has an
ordinance against them. That's why the companies are making a run on Whatcom
County.
Sutter stated there is a public demand for these towers.
Frakes stated they could adopt a moratorium and forego the Planning
Commission process prior to adopting the ordinance.
Sutter stated they would have to have the public hearing within 60 days.
Hoag called for the question.
Planning and Development Committee, 8/10/99, Page 3
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Sutter stated the motion is to recommend adoption of the emergency
ordinance. She spoke against the amendment unless it was more specific to
location. Knapp stated they might want to have two options.
Sutter stated it needs to be more specific in location. She will work on some
amendments to bring forward. As it stands, she will not support the ordinance.
Brenner stated she would also vote against recommending it because she
wanted something that will pass through the Council.
Sutter questioned whether the ordinance would need the 2/3 approval of the
entire County Council or just those members who are present.
Hoag accepted Sutter's option as a friendly amendment and moved to bring
both options forward, including Sutter's recommended option to declare an
emergency only in specific areas.
Frakes stated the ordinance would need a 2/3 vote of the entire County
Council, not just those present.
Knapp emphasized this is not to exclude towers. It is only to create criteria
for locating them.
Motion carried unanimously.
OTHER BUSINESS
1. DISCUSSION OF LETTER REGARDING CONVERSION OF FEE LANDS TO
FEDERAL TRUST AS IT CONCERNS AMENDMENTS TO THE "'LANDS
INTO TRUST" REGULATIONS (AB99 -298)
Dennis Beaman, Salt Spring Drive, stated he met with people in Washington,
D.C. and with other non - tribal reservation residents. The problem is not having any
say over land that goes into trust and the use of the land that goes into trust.
Lands outside of the reservations can also be put back into trust. Once that is
done, the County has no say what could be done with those lands. It becomes a
federal issue. He was told to try and influence the situation before lands go into
trust. There are two types of reservations, open and closed. Closed reservations
are mostly in trust. An open reservation is where almost none of the land is in
trust. The Lummi reservation is 50% tribal and 50% non - tribal. It is completely
open. The Allotment Act was set up to get land back into tribal ownership. The
Lummi Reservation and other reservations in the area are not closed reservations.
All reservations on the west side of the mountains are under the Pt. Elliot Treaty,
which were temporary treaties. Now, they want to put it all into trust, reservation
and non - reservation land.
Dawson stated they are asking for support for the letter. There was concern
about fee land near Haxton Road that the Tribe made into a travel trailer park. The
Tribe told the Department of the Interior that it would be used for residential use.
Planning and Development Committee, 8/10/99, Page 4
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(Clerk's Note: End of tape one, side A.)
Beaman stated the Bureau of Indian Affairs (BIA) is asking for comments
from the counties in the states. He recommended they put some type of
assessment on the land so it wouldn't affect the tax roles so much when it goes into
trust.
Dawson stated there is an agreement to maintain property assessment fees
for a certain amount of time when the County loses urban growth areas. She
suggested similar language.
Beaman stated he was worried about the impact of the checkerboard effect
of mixed trust and fee lands. He recommended that land has to be kept in County
zoning if it is transferred to trust land.
Sutter stated that would have to be a federal stipulation.
Beaman stated that, if the fee land converts to trust land, then the County
should request that the land uses still have to have County permit approval. Also,
if the land is converted into trust, there should be a condition to remove the
sovereign immunity.
Brenner stated she was uncomfortable with changes Dawson proposed in her
memo. She would rather keep it very simple. She suggested, "The position of this
Council is that no public good is being satisfied by the conversion of fee lands to
federal trust. Putting land in trust will eliminate local government control. It will
cause inconsistencies in uses, which can be extremely harmful to public health and
safety. It will reduce public confidence in orderly planning and development. If
land is put into trust, we request that it comply with surrounding county zoning and
that there will be limited sovereign immunity." She didn't have any background
information on Dawson's other proposed changes, and she was uncomfortable
putting her name on something she didn't understand.
Hoag asked about blood quantum for tribal eligibility.
Dawson stated it should be someone is eligible for tribal status with 50% or
more tribal blood.
Sutter stated the Council would need to stick to the issues pertaining to the
County's issues, such as land use and taxation.
Hoag recommended they begin with the basic letter on Council packet page
148. They could add a bullet point, "If land is transferred into trust, then they must
comply with surrounding County zoning and waive their sovereign immunity in
regard to compliance with zoning."
Sutter questioned whether Hoag, Brenner, and Dawson could come up with a
new draft letter for the evening Council meeting.
Hoag questioned whether they want to address the issue of the transfer of
trust land being contiguous reservations. Beaman stated it does not make much
Planning and Development Committee, 8/10/99, Page 5
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difference nationwide. The economic impacts are forcing the tribes off the
reservations.
Brenner stated she wanted the emphasis on why the conversion is a problem
in the first place, and what they would like the federal government to do.
Sutter stated Hoag and Dawson would bring forward a substitute letter.
Chuck McCord, 3365 Robertson Road, Bellingham, stated he sent a letter to
the State Department of Ecology (DOE) against the tribes request for TAS regarding
the control of the water supply. The County Council approved some land to become
commercial that had restrictive covenants and were part of a subdivision within the
Lummi reservation. There was a rumor that the land would be converted to trust
land. He was told the owners couldn't change the covenant, even if it is converted
to trust land. That wasn't true. The BIA doesn't do anything except grant the
Tribe's permission to do anything they request. Also, lending institutions will issue
loans for houses on trust land. That is new.
DISCUSSION AND RECOMMENDATIONS TO COUNCIL
1. ORDINANCE ADOPTING AMENDMENTS TO THE URBAN FRINGE
SUBAREA PLAN REGARDING THE GATEWAY INDUSTRIAL AREAS OF
MAP 6 AND RELATED AMENDMENTS TO WHATCOM COUNTY CODE
CHAPTER 20.65, GATEWAY INDUSTRIAL ZONING (AB99 -268)
Sylvia Goodwin, Planning and Development Services Planning Manager,
stated this item includes two amendments. One is to the Urban Fringe Plan text
and the other is regarding the additional amendments to the Gateway Industrial
zoning text. The changes made in July already reflected in the documents. There
are only two additional zoning changes to Gateway Industrial, and are referenced
on Council packet pages 106 and 107. There are three proposed changes.
Previously, the height limit was increased to 75 feet. The citizens in the Birchwood
neighborhood were concerned that wouldn't be appropriate in or adjacent to their
neighborhood. The Planning Commission recommended that the 75 -foot limit only
applies in the Blaine -Birch Bay area, and that it remains 45 feet in the urban fringe
area. County Council made that change at the last meeting in July for the entire
Gateway Industrial area. The only change is to add "...in the Birch Bay- Lynden
Road area of the Blaine Birch Bay Subarea."
Hoag stated that doesn't match what she recalled.
Goodwin stated the other change was to add a new section, WCC 20.65.450,
regarding site design. That was to implement a section of the urban fringe plan
that recommended that. The last change was to provide a definition for "Major
Commercial and Industrial Projects." In one area of the Urban Fringe Plan, the
maximum lot size square footage is already only 10,000 square feet. This would be
anything that is half as big as what would be allowed. There are quite a few areas
where the entire lot is within 100 feet of the residential areas. The Planning
Commission and staff considered saying, "100 feet for all commercial or industrial
Planning and Development Committee, 8/10/99, Page 6
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projects." That would make about half a dozen lots totally unusable because they
couldn't fit anything in there without being 100 feet of residential areas."
Hoag stated that the City of Bellingham and the Neighborhood Association
raised many concerns. She asked about the letter from the Neighborhood
Association. Goodwin stated that letter dealt with the Light Impact Industrial zone,
which is a separate issue. They combined their comments on the two areas into
one letter.
Hoag stated their letter also addresses the maintenance and type of buffer
areas. Goodwin stated it is addressed in the zoning code in detail. She read
through the conditions. The requirements are fairly specific. Also, the Council
should not make the change regarding Y4 mile. That is not a clarification, it is a
change.
Sutter stated this proposed change to the Urban Fringe Plan makes the plan
reflect what the Council already adopted. Either they change the Urban Fringe
Plan, or they don't change the Urban Fringe Plan and would need to go back and
change Title 20 again. That would require docketing and going through the process
next year.
Hoag stated her point through the development regulation process was that
the 1/4 mile requirement did not implement the Urban Fringe Subarea Plan.
Everyone said they did match. Now, they are trying to change the Urban Fringe
Subarea Plan to match this language.
Sutter stated that was not what they said. The problem was the clarity was
not there. This language clarifies the true intent of the plan.
Hoag stated the intent of the Urban Fringe Plan says "immediately adjacent
to the freeway," which is different than a distance of Y4 mile. The Urban Fringe Plan
and the documents attached to it and other plans put in place always referred to
the interchange itself. The Development Regulations issue is when they began
talking about the boundary at 1/4 mile of the interchange. If the Development
Regulations did implement this plan, then there should be no problem with leaving
the language, "where the transportation system makes them appropriate." It
leaves the ability to look at the traffic and to ensure they don't end up cutting off
the traffic they would need to the airport and industrial zones.
Hoag moved to retain the existing language and delete the suggestion to
change the reference to Y4 mile of the freeway interchange.
Sutter stated the language, "...where transportation system makes them
appropriate" is subjective. Regarding adjacency, the Council had a discussion
regarding the Lummi Island quarry and the adjacency of property around that
quarry. At that time, people were willing to say "adjacent" meant within 1/2 mile.
To her, "adjacent" means abutting or touching. This takes that subjectivity out of
the document and makes it very specific.
Hoag stated they would need the subjectivity to evaluate whether a
particular use would be appropriate.
Planning and Development Committee, 8/10/99, Page 7
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Sutter stated there is language that provides more specificity to allow some
predictability. Every time they get a change in staff, there will not be different
interpretations.
Brenner stated the new language bothered her. If the sentence ended at,
"...limit commercial uses" then that would be fine. However, they are only limiting
the commercial uses of a certain type, not commercial uses as a whole. There could
be a large proliferation of commercial uses that are allowed. Goodwin stated that is
wording exactly out of the Urban Fringe Plan.
Hoag stated the Urban Fringe Plan specifies the location and the type of
commercial uses that are to be allowed. The proposed language changes the intent
of the plan. In addition, the previous language focused on the interchange area,
not everything within 1/4 mile of the interchange. Goodwin stated the area
surrounding the interchange was traditionally zoned General Commercial and
Tourist Commercial. Going from General Commercial to Gateway Industrial reduced
the commercial potential for a lot of that area.
Hoag restated her motion to recommend an amendment to delete all of the
language "within 1/4 mile of the full freeway interchange" and retain the original
language that says, "...where the transportation system makes them appropriate.'
The stakeholders involved in the original public process all support this language,
except the Garrett party. That language should remain the same in all areas it is
referenced.
Motion carried 2 -1 with Sutter opposed.
Goodwin stated the zoning on page 129 addresses some of Hoag's concern
regarding concurrency. She read from Whatcom County Code section 20.80.212.
They have to determine that the transportation system capacity exists.
Hoag stated is different to say it exists to serve that use. Her proposed
amendment language talks about ensuring the new land use wouldn't cause a
problem for the transportation system serving light industrial in the area. That is
different than saying one has to be able to serve the transportation usage the new
land use would bring.
Sutter stated she interpreted that differently. The language is subjective.
Hoag moved that they not change the language from "discourage" to "limit."
That would change the intent of the plan.
Motion to recommend amendment to Council carried 2 -1 with Sutter
opposed.
Hoag stated the site design was a good thing. She was unsure of the vehicle
trips per day and its buffers.
(Clerk's Note: End of tape one, side B.)
Planning and Development Committee, 8/10/99, Page 8
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(Clerk's Note: Due to an error in audiotaping, there is no audiotape for the
remaining portion of the meeting. Minutes were taken from the notes of Planning
and Development Services staff.)
DISCUSSION AND RECOMMENDATIONS TO COUNCIL
2. ORDINANCE ADOPTING AMENDMENTS TO WHATCOM COUNTY CODE,
TITLE 20, ZONING TEXT (AB99 -184)
This item was held in committee.
OTHER BUSINESS
2. DISCUSSION REGARDING AMENDMENTS TO WHATCOM COUNTY
CODE TITLE 20.44.100, ACCESSORY USES (FILE #58- 98 -ZT) (AB99-
297)
The committee agreed to recommend the introduction of an ordinance at the
evening Council meeting.
Committee directed staff to bring forward an ordinance regarding file
#54 -98:ZT regarding Lot Consolidation for introduction at the next County
Council meeting in September, and schedule that item for discussion in the
Planning and Development Committee.
ADJOURN
The meeting adjourned at approximately 5:00 p.m.
Jill Nixon, Minutes Transcription
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Kathy Sutter, Committee Chair
Planning and Development Committee, 8/10/99, Page 9