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WHATCOM COUNTY COUNCIL
Planning and Development Committee
December 7, 1999
The meeting was called to order at 3:00 p.m. by Committee Chair Kathy
Sutter in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Also Present:
Barbara Brenner
Absent:
Connie Hoag
COMMITTEE DISCUSSION AND RECOMMENDATIONS TO COUNCIL
1. ORDINANCE ADOPTING AMENDMENTS TO THE WHATCOM COUNTY
CODE, TITLE 20, ZONING TEXT, TO REVISE PROCEDURES FOR
TRANSFERRING DEVELOPMENT RIGHTS AND DESIGNATE THE LAKE
WHATCOM WATERSHED AS A SENDING AREA (AB99 -386)
Sylvia Goodwin, Whatcom County Planning Division Manager, distributed a
substitute ordinance.
Carl Batchelor, Carl Batchelor Consulting Service, 754 Cain Lake Road,
Sedro - Woolley, stated he prepared deed forms, application forms, the covenant to
restrict the sending parcel from future subdivision, and certification forms. In the
process of reviewing those forms with County staff, including the Assessor's Office,
he became curious about why the Assessor was resistant to allow development
rights to be transferred without going directly to a receiving parcel. The assessor
didn't want people to be able to retire development rights. He referred to
comments made during the March 16 Planning Commission. If the development
rights are transferred from the sending parcel to the receiving parcel, the value of
the development rights can also be transferred. Under the current proposal, they
lose the argument that TDRs are real property. They are talking about three
different things. The Planning Commission recommended a process by which TDRs
could only be transferred upon an application being made by the owner of the
developing property, the receiving parcel. It will be in association within the
development project for receiving.
Sutter asked which section extinguished the development rights. Batchelor
stated it is not in there now. They are talking about three things. First of all, the
right goes from the sending parcel to the receiving parcel.
Sutter stated that is the current proposal. Batchelor stated their
recommendation to the Planning Commission would allow three things to occur.
One would be a direct transfer from the sending parcel to the receiving parcel.
Another option would be that someone could purchase the rights and hold them for
future use. The third option was that a conservation organization could purchase
Planning and Development Committee, 12/7/99, Page 1
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the right and retire or extinguish the right. That was the option that had legal
problems.
Sutter stated the second option is not included in the current proposal.
Brenner stated it sounded as if legal counsel had a problem with the second
option as well. Batchelor stated the Assessor didn't have a problem with someone
buying a development right and not using it. He had a problem with the
development right being extinguished. The substitute ordinance would allow the
right to be transferred, but not extinguished.
Sutter stated section 20.89.034 of the Whatcom County Code (WCC) is
regarding the buyers, and the proposed language regarding holding the TDR for
future use would go in another section. That would create confusion. Both options
need to be in the same place in the code.
Brenner questioned how retiring the development rights would be any
different than a conservation easement. Goodwin stated the development rights
would be transferred to another property, so there would be an equal increase in
taxable value someplace in the urban fringe, compared to an equal decrease in
value in Lake Whatcom. If someone retired the development rights, it would be an
overall decrease in taxable value.
Brenner stated they do that all the time. The assessor's only argument is
that it turns the development rights into personal property rather than real
property, which she didn't believe. It is as if the County purchased the value.
Goodwin stated she understood the assessor was also concerned about decreasing
the total taxable valuation of real estate in the County.
Brenner questioned how this is any different than the County or Land Trust
buying any property. Goodwin stated they were just discussing the concern as
expressed to them. When they talk about the amount of land that is likely to be
purchased and retired, it would not have a big impact.
Sutter stated another issue is that if they are retiring development rights that
are calculated into the formula for the growth populations under growth
management, they are diminishing the land base for absorption of that population.
Brenner stated there are plenty of times the County has purchased
developable property.
Councilmember Dawson stated they've never asked the assessor about those
transactions. He may have the same concerns.
Brenner stated they do it anyway.
Sutter stated it is also a matter of magnitude. When the County purchases
property, generally it is open to the public for public use. Now they are talking
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about private property. Buying a 20 -acre parcel of rural forestry doesn't have a
huge impact.
Brenner stated the assessor's concern doesn't make sense. Batchelor stated
the assessor might be concerned that this is a County regulatory program, as
opposed to a private action that is out of his influence.
Goodwin stated she and Batchelor could not speak for the assessor. The
proposal they have would allow purchasers to purchase development rights, hold
them for future transfer, and develop later on.
Brenner stated anything they can do to limit develop in the watershed should
be kept open. She wanted more options not fewer options. It's a great idea for a
conservation group to purchase the development rights and retire them. Batchelor
stated that option is still open given the Planning staff's recommendation. A
conservation organization could purchase those development rights, then exercise
their free will to not use them.
Sutter suggested they delete section 20.89.034 on page six of the ordinance
regarding buyers. Goodwin agreed.
The committee concurred.
Sutter read proposed language for the end of section 20.89.062(3), "If the
TDR permit application is not associated with a pending development application,
and is not proposing to transfer such development rights to another parcel at the
time of application, the application may be granted approval administratively by the
Whatcom County Planning and Development Services Department."
Brenner so moved.
Motion carried unanimously.
Sutter moved to delete section 20.89.034.
Motion carried unanimously.
Sutter moved to amend language in section 20.89.063(6), "Except for
purposes of certification or transfer under subsection .061 above..." She asked
Batchelor to explain the request. Batchelor stated that would expand the use of the
certification process. Initially, certification was used only to create something that
someone could go to a purchaser with.
Brenner questioned whether this would allow someone to either hold on to
the rights or transfer them. Batchelor stated this would allow someone to buy
development rights without having them on a receiving parcel as part of a
development project.
Planning and Development Committee, 12/7/99, Page 3
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Motion carried unanimously.
Brenner questioned whether a person with the development rights would still
have to go through the regular process to use the rights. Batchelor stated that was
correct.
Sutter stated this also enables a TDR bank process to be developed.
Sutter stated there was a scrivener's error in section 20.89.064(1).
Brenner moved to amend language in section 20.89.064(1), "...requirements
of the Whatcom County Code except as exempted under subsection .061 above."
Motion carried unanimously.
Brenner moved to amend language in section 20.89.065(1), "...provisions of
the Whatcom County Code except as exempted under subsection .061 above."
Motion carried unanimously.
Brenner moved to amend language in section 20.89.065(2), "Execution and
eeFda m recording of an instrument..."
Motion carried unanimously.
Brenner moved to amend language in section 20.89.065(3), "
Recording of eitheF epen spaee eF eenseFvatien easengent e deed restriction as
specified by the County...." Batchelor stated that suggestion comes from discussion
with legal counsel.
Motion carried unanimously.
Brenner moved to amend language in the first sentence of section
20.89.065(4), "The deed restriction..." and
in the third sentence, "The easengent . _ deed restriction..."
Motion carried unanimously.
Sutter moved to amend language on page six of the ordinance, section .032,
"In approving a transfer of development rights... decision- making body fli-a-y must
find...." They have to find it consistent. They don't have a choice.
Motion carried unanimously.
Sutter stated the language in section 20.89.033 mandates that a person
buying development rights has to buy all the rights, regardless of how many units
he or she plans to use. Batchelor stated this is intended to not force the purchaser
to use them all.
Planning and Development Committee, 12/7/99, Page 4
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Sutter stated it is forcing the purchaser to pay for them all. She questioned
what happens if the sender wants to send them all, but the receiver doesn't want
all of them. Batchelor stated that is a negotiation that happens in the marketplace.
Brenner stated they don't want to do something that will handicap the
process. They want a willing buyer and a willing seller, or this won't work.
Sutter stated there could be a situation in which the sender should only be
allowed to sell as many rights as the receiver needs. The sender can sell the rest
to someone else. Batchelor stated the language doesn't prevent that.
Brenner stated the language doesn't prevent the seller from doing that, but it
prevents the buyer from buying only a portion of the available units.
Karen Frakes, Senior Civil Deputy Prosecutor, stated that wasn't the intent.
Goodwin suggested they delete the last section. The intent was to allow
someone to use fewer rights than he purchased.
Sutter moved to amend language in section 20.89.033, "parcel or parcels;
elects to apply fE)F OF '
Motion carried unanimously.
Brenner questioned whether the only place they could transfer to would be
the Urban Residential Mixed (UR -MX) zoning. Goodwin stated that is correct at this
point. They could identify other areas later.
Brenner stated she did not want dumping grounds for TDRs. She would like
to see all areas opened up as receiving areas. People who live in mixed use areas
have little stability to plan for the future. They don't need to provide such a bonus
for those areas.
Sutter stated her understanding is the reason it is designated for the UR -MX
zone is because that is the only area the City of Bellingham will allow. They will not
allow density transfers to other zoning. Batchelor stated the UR -MX zone was
designated as a receiving area through the urban fringe subarea planning process.
It is the only place designated in the County's plan.
Sutter questioned why they are not approaching the subject of designating
more receiving areas. The UR -MX areas are not going to be adequate. Batchelor
stated part of the ordinance asks the City to designate more receiving areas.
Sutter stated she wanted it stated more strongly.
Planning and Development Committee, 12/7/99, Page 5
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Brenner asked why it shouldn't be in all the areas. Batchelor stated if they
are going to increase density in an area, they need to work with the community.
Brenner suggested a TDR process with a one -to -one ratio. Goodwin stated it
is.
Brenner stated it isn't. There are bonuses. Goodwin stated the bonuses are
only if they buy the TDR.
Goodwin stated they could look at other areas.
Brenner stated they don't need to deal just with Bellingham.
Batchelor stated one option for the future is to require someone to purchase
development rights if they want a rezone brought into an urban growth area.
Sutter stated they need to start with what they have with the understanding
this is a small part of what they need to do.
Brenner asked for clarification regarding the bonuses. Goodwin stated the
zoning is UR -MX, so they are entitled to six units per acre, by right. If a property
owner buys two more development rights, then he or she can build eight units per
acre. That allows a bonus of two units. There is a limit of ten units.
Brenner stated that the people living in the UR -MX zoning have no idea what
their ultimate density will be. Goodwin stated they would know it wouldn't be more
than ten.
Batchelor stated one part of the program is a connection between the
sending and receiving areas for the purpose of transferring impact. The people in
Bellingham's urban growth area are using water from Lake Whatcom. That is part
of the logic of using Bellingham's urban growth area as a receiving area. It
transfers the development impact out of the watershed and into the urban growth
areas.
Brenner stated she didn't agree with that logic because their number one
purpose is to reduce the density in the watershed, not keep people in the same
watershed. They should have the option to transfer the rights to other areas of the
county.
Sutter stated people living in the cities need to understand that Growth
Management requires them to in -fill. A lot of those people wanted growth
management to protect the wild places, but now that it is impacting them, they
don't like it. That is the reality of the situation.
Brenner stated she didn't like the UR -MX and didn't support it.
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Goodwin stated the section about urging the City of Bellingham to allow
receiving areas is in the staff report and is a Planning Commission recommendation.
It is not in the ordinance. There were three recommendations from Planning
Commission. The first is to designate the Lake Whatcom watershed as a TDR
sending area. That should be in the ordinance.
Sutter stated that is in section two of "NOW, THEREFORE, BE IT
ORDAINED..." Goodwin stated it is not in the substitute ordinance, but it should be.
Sutter stated it is in the ordinance in the packet, so it is in. That is where
they need to add section four. Goodwin stated the Planning Commission
recommended a section four that said, "Recommend to the Bellingham City Council
that the City Council, as it sees fit and through public review and update of the
city's neighborhood plans, designate TDR receiving areas inside the Bellingham city
limits for the purpose of receiving residential density transferred out of the Lake
Whatcom watershed."
Sutter stated the language is not strong enough. She would rather include
language such as, "The County shall initiate a process with the City of Bellingham to
establish additional receiving areas within the City's jurisdiction."
Brenner stated one purpose of TDRs was to inspire people to come up to the
density that exists in their neighborhood. They need to come up with a formula in
which people benefit by in- filling to the density that is there.
Sutter stated they are not going to do that with TDRs. Goodwin stated
someone would not buy development rights for rights they already have.
Sutter stated they need to sit down with the City of Bellingham and work this
out.
Brenner stated she was talking about not increasing density that is beyond
the underlying zone density.
Sutter stated that wouldn't work because a property owner already has a
right to develop at that density.
(Clerk's Note: End of tape one, side A.)
Brenner stated they have a right to do it, but a lot of people are not going to
do it because they don't want that extra density. She suggested making a higher
density more attractive to the buyer.
Goodwin questioned why a property owner would pay money to put in
additional houses that they don't want to build.
Brenner stated there could be a tax break or other reduction because it is
more financially beneficial to do it that way than to leave the land the way it is.
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Sutter stated they don't want to put the cost of increased density on the
general public through taxes because the only person to benefit would be the
developer.
Sutter questioned whether there is any reason that someone buying property
in the UR -MX zoning would not be privy to the information that the density could be
more. Goodwin stated that is part of the zoning.
Brenner stated she has had a lot of complaints about that zoning. Goodwin
stated this ordinance would make it better. A person wouldn't get their first six
units for free unless they purchased the TDR. Before, they could get up to six units
by doing creative zoning, affordable housing, or open space.
Sutter stated that is appropriate.
Brenner stated she would rather they get six units than ten units.
Sutter stated the nature of the complaints she's received about the UR -MX
zoning is the about the difficulty in getting permits between the City and the
County.
Sutter moved to add section four to the ordinance under "NOW, THEREFORE,
BE IT ORDAINED..." regarding negotiating with Bellingham. They will write up
specific language.
The committee concurred.
Brenner stated she would not support a recommendation to Council, so it will
have to go forward without a recommendation.
ADJOURN
The meeting adjourned at 3:55 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, 12/7/99, Page 8