HomeMy WebLinkAboutCouncil August 11 19981
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WHATCOM COUNTY COUNCIL
Regular Council Meeting
August 11, 1998
The meeting was called to order at 7:00 p.m. by Council Chair Robert Imhof in the
Council Chambers, 311 Grand Avenue.
Also Present: Absent:
Kathy Sutter None
Marlene Dawson
L. Ward Nelson
Connie Hoag
Barbara Brenner
Tom Brown
ANNOUNCEMENTS
Imhof announced that in Committee of the Whole, Consideration Of Appeal Of
Hearing Examiner's Decision On File No. Cup 98 -0003, Filed By Sherilyn Wells (AB98 -
222) took place.
222).
Nelson moved to disallow the cross - appeal of a Hearing Examiner's decision (AB98-
Motion carried unanimously.
Dawson moved to uphold the Hearing Examiner's decision.
Motion carried unanimously.
Imhof also announced that in Committee of the Whole, Discussion Regarding
Preparations For Master Collective Bargaining Agreement Negotiations (AB98 -020) and
Discussion With Senior Deputy Prosecutor Daniel Gibson Regarding Pending Litigation
(AB98 -020) took place in executive session.
APPROVAL OF MINUTES
APPROVAL OF MINUTES: REGULAR COUNCIL MEETING — JULY 14,1998;
COMMITTEE OF THE WHOLE — JULY 28, 1998
Nelson moved approval of the minutes.
Motion carried unanimously.
Regular Council Meeting, 8/11/98, Page 1
2 SPECIAL PRESENTATION
3
4 UPDATE FROM THE COUNCIL OF GOVERNMENTS ON THE WATER
5 RESOURCE MANAGEMENT COUNCIL (AB98 -019)
6
7 Jim Miller, Council of Governments Executive Director, thanked the County Council and
8 the Executive's office for taking the lead status on state legislation ESHB 2514. He discussed
9 the Water Advisory Committee (WAC) progress at this point and the Water Resources
10 Management Council (WRMC) in general. The process was designed to move through public
11 issues as they relate to water, including watershed planning. It is an opportunity to take input
12 from a cross section of interested groups and get that information into the hands of the decision -
13 makers of the County. It is a valuable filtering process. By the time it gets to the decision -
14 makers, it has gone through a process of citizen's advisory groups and elected officials. By the
15 time it gets to the County Council, there is a good indication of what the citizens want.
16 Regional councils are designed to absorb risk. Along with the risk goes responsibility and the
17 pooling of resources.
18
19 The process is not a silver bullet or a quick fix. There are no quick fixes on water issues.
20 The Council should seek long term solutions.
21
22 Since the last update, the water fair was held in late February. The purpose was to get
23 people into the WAC process. It was extremely well attended. Some Council members may
24 have been at the first few meetings. The charter did not put structure into the WAC, because the
25 founders did not know where the citizens wanted to go with the issue. He suggested sub -
26 committees, which were voted down by the charter group. The committees that have formed
27 have been out of function and necessity. There have been issues brought forward to the group.
28 One of the groups that was formed is a Data Collection Committee, charged to come up with a
29 recommendation on good science, such as how data is collected and who would collect the data.
30
31 Another group was formed to review the Memorandum of Agreement (MOA) between
32 the County, other jurisdictions, and the tribes regarding ESHB 2514. There was a
33 recommendation for a revised MOA.
35 Other groups include a committee to make recommendations on what a planning unit
36 could look like to give Council members a sense of who should be involved. Also, there is a
37 group to revisit the charter. This group has two functions. The first function is to look at what
38 has been done and where the organizations are going with the process and the second function is
39 to see how the charter can be changed to be more efficient and beneficial.
40
41 One specific project is the W.A.T.E.R.S. project. There was a presentation given a few
42 months ago. This project is regarding the implantation of salmon eggs into streams. This might
43 be an ESHB 2496 issue regarding the Endangered Species Act. They realized that the charter's
44 consensus requirement has bogged down the process. The Committee decided to have a
Regular Council Meeting, 8/11/98, Page 2
I professional facilitator involved. The facilitator, Holly O'Neil, provided consensus training to
2 WAC members at no cost.
3
4 The Committee is still trying to determine their role in relation to the County Council and
5 the other agencies involved in ESHB 2514. They have intentionally held expenses extremely
6 low. They have used 25% of the budget through the first eight months. They will keep the
7 budget low until they determine if they need to hire a coordinator. There is one staff person, Ann
8 Bylin, who is the technical person on staff. The budget looks very good. If they were to
9 reintroduce the budget including the carry over, they could carry on current functions for total
10 budget of $45,000 which would be spread among the jurisdictions.
11
12 In summary, the WAC moved ahead with creating the process, handling issues that have
13 been brought forward, and is ready to receive input from the ESHB 2514 process and to bring
14 those issues into a public forum.
15
16 Hoag stated that the Natural Resources Committee forwarded Mr. Seymour's
17 presentation to the WAC. Miller responded that they contacted Mr. Seymour, but he decided he
18 did not want to make a presentation.
19
20 OPEN SESSION
21
22 The following people addressed the Council:
23
24 Stanley Charles Martin Jr., 3452 Grove Road, Gooseberry Point, Bellingham, requested
25 an appointment with the various Council members. He was jailed on a crime he didn't commit.
26 The Lummis jailed him for 17 days without being charged. He was assaulted in jail. He went to
27 the Sheriff to look into the situation. He has already talked with Council Member Dawson.
28
29 Dawson stated that her personal feeling is that the Sheriff does not have jurisdiction, but
30 since this occurred on County property, civil rights should be protected.
31
32 Brenner suggested putting the item in the Public Works Committee.
33
34 Marian Beddill, 3600 Seeley, added comments to Jim Miller's report on the Water
35 Advisory Committee. The Committee has been functioning well. She has been active on the
36 Committee. The Council must consider that the Committee was conceived and brought together
37 differently than a corporate structure or a government organization, which comes into play with a
38 mandate, command structure, budget, staff, and mission. Citizens who assembled and looked for
39 a place to create a forum so that there could be general conversation and interchange rather than
40 imposed authority brought the group together. On that basis, it has been doing an excellent job.
41 There have been individual activities among the group members. There was no structure or
42 mechanism and it has worked out well. Also, the three sub -zone items on the agenda have been
43 contentious issues. The questions by citizens are of equity and fairness in taxation and being
44 taxed twice for the same activity. People also question the necessity of the proposed work plans.
45 The capital works are funded by the County wide general assessment. The districts must spend
Regular Council Meeting, 8/11/98, Page 3
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money for maintenance of the capital items. These are two different activities. Everyone is
anxious to go forward with projects, but there must be adequate planning of scope and
responsibility. She suggested waiting until the circumstance, need, and applicability is clear.
Robert Bertschinger, 5590 Knight Road, Sumas, spoke regarding the flood control zones.
He found out about the issue when he received the notice in the mail. He questioned the
applicability and fairness of the tax. The recommendations for how the money will be spent are
too vague. The boundaries are haphazard. The amount the landowners are expected to pay is the
same no matter the impact on the flood plain. He recommended basing the assessment on
benefit derived. He is not in a flood zone and will not receive a direct benefit. He chooses to not
live in a flood zone, but is being asked to bear the burden of those living in a flood zone. Under
the watershed provision, there should be a different rate for those with more or less acreage. The
Council was unaware of the constituency's opinions. There was not enough notice to the public.
Sharon Apeland, 2788 Mt. Baker Hwy, spoke regarding flood control. She lives by the
Rome Grange. It does not flood in that area. The tax is unfair and a burden. Taxes went up
50% this year. She requested the Council reconsider the boundaries around the flood zones.
Brenner clarified that there is an ordinance being brought forward in Introduction Items
to refund the $25 flood assessment, which is different than the three items being discussed.
CONSENT AGENDA
Dawson reported for Finance and Administrative Services Committee and moved
approval of items 2 through 6.
Dawson removed items 1 and 7 for discussion.
Hoag removed item number 6 for discussion.
Motion to approve items 2 through 5 carried unanimously.
1. REQUEST AUTHORIZATION FOR PAYMENT OF COUNCIL MEMBER
EXPENSES AND /OR TRAVEL (AB98 -143F)
Dawson stated that in addition to the payment of audio tapes requested by Council
Member Brenner, there are two other items to be added to the request. One item is a three -day
conference to be held in Tacoma that Council Member Dawson wishes to attend. The
registration fee is $195. The second item is a publication at a cost at $10. Dawson moved
approval of all three items.
Brenner stated that a copy of the publication will be kept in the Council office library.
Motion to approve carried unanimously.
Regular Council Meeting, 8/11/98, Page 4
1 2. RESOLUTION ESTABLISHING COUNTY ROAD PROJECT NOS. 998004 AND
2 998005, AND REQUEST AUTHORIZATION FOR THE EXECUTIVE TO AWARD
3 THE CONTRACT FOR THE STRUCTURAL OVERLAY OF BIRCH BAY - LYNDEN
4 ROAD AND HARBORVIEW ROAD, TO THE LOWEST RESPONSIVE BIDDER,
5 WILDER CONSTRUCTION COMPANY, IN THE AMOUNT OF $759,842 (AB98 -
6 309)
7
8 3. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO AWARD BID #98 -87
9 FOR THE ANNUAL SUPPLY OF COMMISSARY GOODS FOR THE WHATCOM
10 COUNTY JAIL TO THE LOWEST RESPONSIVE BIDDER, LEE WHOLESALE
11 GROCERY, IN THE AMOUNT OF $40,167.24 (AB98 -310)
12
13 4. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO AWARD BID #98 -92
14 FOR THE ANNUAL PURCHASE OF FUEL AND DELIVERY TO THE CENTRAL
15 SHOP, TO THE LOWEST RESPONSIVE BIDDER, YORKSTON OIL CO. INC., IN
16 THE AMOUNT OF $123,402.66 (AB98 -311)
17
18 5. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO A GRANT
19 AGREEMENT BETWEEN THE WHATCOM COUNTY PUBLIC WORKS
20 DEPARTMENT AND THE DEPARTMENT OF ECOLOGY FOR COMMUNITY
21 LITTER CLEANUP PROGRAM ACTIVITIES IN THE GRANT AMOUNT OF
22 $30,000 (AB98 -312)
23
24 6. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO A
25 CONTRACT BETWEEN WHATCOM COUNTY AND LARRY E. HALVORSON,
26 FOR PROFESSIONAL NEGOTIATOR AND LABOR COUNSEL
27 REPRESENTATION IN THE ANNUAL AMOUNT OF $49,836 (AB98 -313)
28
29 Brown stated that it is time to allow the administration to conduct the County labor
30 negotiations instead of hiring a contracted attorney. A contractor could be hired for exempt
31 contracts.
32
33 Dave Wareing, Deputy Administrator, stated that the County does not have exempt
34 contracts. Larry Halvorson is an attorney and negotiator on human resources issues. One
35 concern expressed in committee was regarding the retainer fee. Halvorson is agreeable to billing
36 his services per hour. The administration determined it is in the best interest for the County to
37 hire an outside counsel for negotiations. He has done a good job for Whatcom County. The
38 expertise is important and he recommended the contract be continued. Administration would be
39 willing to bill on an hourly basis instead of on retainer.
40
41 Hoag stated that she did not feel the increase in the retainer fee from $2,777 per month to
42 $4,153 per month is appropriate. There is not a problem with hiring counsel on retainer. The
43 problem is that the retainer amount should be less than the hourly rate. The proposed retainer fee
44 is more per hour than the per hour charge of $150, based on the average number of hours spent in
45 the past three years. The purpose of a retainer is to have a lawyer available when necessary that
Regular Council Meeting, 8/11/98, Page 5
I would have the guarantee of a monthly check. The County has enough administrative staff to
2 handle the workload. If the County chooses to hire outside counsel, she would not support the
3 increase in the retainer fee. She suggested an increase in the retainer fee to $3,500 per month
4 based on the teamster's de- certification.
5
6 Wareing responded that the retainer is based on the work done over the past three years
7 and the anticipated workload over the next three years. The amount suggested is equal to the
8 amount in the past and future needs. In the past, Halvorson worked for less than the market rate.
9 Other jurisdictions pay from $150 to $195 per hour. The additional $153 per month is for
10 expenses. The administration believes the County will pay less on retainer than if counsel is paid
11 on an hourly rate.
12
13 Hoag clarified that the fees quoted by Wareing regarding City of Bellingham and Skagit
14 County are based on hourly rates. She stated that she is not talking about the hourly rate. She is
15 concerned with the retainer fee. Other jurisdictions are not paying retainer fees. Wareing stated
16 that the administration anticipates paying Halvorson less on retainer than on an hourly rate.
17
18 Brenner stated that the County should not have someone on retainer. This work should
19 be done internally. The County has qualified people in- house.
20
21 Brenner also stated that the County should have professional negotiators on staff.
22
23 Brown stated that the department head should be able to negotiate contracts. There is no
24 indication that the County is willing to change ways. The County is facing a tight budget and it
25 is time to cut back on costs and have administration work on negotiations.
26
27 Nelson agreed it is good to look for efficiencies, however the County has never hired
28 anyone trained for labor arbitration. Asking current staff to do negotiations is like asking a
29 pharmacist to perform surgery.
30
31 (Clerk's Note: End of Tape 1, side A)
32
33 Nelson continued to state that Halvorson has looked out for the best interest of the
34 taxpayers.
35
36 Imhof stated that the Council recently received information on labor negotiations. The
37 County does not have that kind of expertise in- house.
38
39 Hoag stated that last year, 26% of counsel's time was spent on one group because that
40 group de- certified and hired an attorney from Seattle. That activity was an anomaly. The
41 administration should not base future time projections on a period of time that was an anomaly.
42
43 Brown stated that the County needs to have negotiation expertise within the
44 administration.
45
Regular Council Meeting, 8/11/98, Page 6
I Brenner stated that the three -year increase of 5% in three years is too much. The County
2 should have the expertise within the administration to do negotiations.
3
4 Nelson stated that the Bellingham police joined the Guild and he questioned the
5 settlement. Wareing stated it was much higher than what the County settled for. It was
6 approximately a 15% package over three years.
7
8 Nelson stated that the County settlement was much lower, and questioned the savings that
9 resulted. Wareing stated that the County saved approximately $100,000 or more. This was the
10 same Guild. The Bellingham police have their own independent guild and they're represented
11 by a Seattle law firm. When a group goes to this type of guild, an organization will spend a lot
12 of time negotiating. The County knows the Seattle law firm and the time that it takes to deal
13 with them. Negotiations are not every one year or every three years. The County contacts their
14 attorney on a regular basis. During the past contract when Halvorson was on retainer, the
15 County paid him the equivalent of $105 per hour. It would be foolhardy to shift the
16 responsibility to those not able to take it on. Halvorson pays many times over what he saves the
17 County.
18
19 Dawson stated that the administration should hire the negotiator.
20
21 Imhof stated there is a difference between negotiators and human resources personnel.
22
23 Dawson moved to approve.
24
25 Hoag moved to amend the contract so the new retainer fee is $3500.
26
27 Nelson questioned whether the County is able change the agreement. Halvorson may not
28 accept a contract with the amended retainer fee. The County needs to find out his hourly rate.
29 Wareing responded that the hourly rate is $150. He assumed the $3500 retainer fee would not be
30 acceptable. Administration would have to adjust what costs would be included in the retainer
31 fee.
32
33 Hoag proposed changing the contract to $3500 and see if Halvorson would accept the
34 proposed retainer fee. Wareing stated that he has discussed this with Halvorson and knows what
35 he would accept.
36
37 Motion failed 3 -4 with Hoag, Brenner, and Brown in favor.
38
39 Motion to approve carried 4 -3 with Hoag, Brenner, and Brown opposed.
40
41 7. REQUEST AUTHORIZATION FOR THE EXECUTIVE TO ENTER INTO A REAL
42 ESTATE PURCHASE AND SALE AGREEMENT BETWEEN WHATCOM COUNTY
43 AND THE TOM AND INGEBORG NESSET FOUNDATION FOR THE PURCHASE
44 OF REAL PROPERTY FOR ACQUISITION OF THE NESSET FARM PARK,
45 UTILIZING GRANT MONEY RECEIVED FROM THE WASHINGTON STATE
Regular Council Meeting, 8/11/98, Page 7
I INTERAGENCY COMMITTEE FOR OUTDOOR RECREATION AND
2 CONSERVATION FUTURES FUNDS FOR A TOTAL AMOUNT OF $980,000
3 (AB98 -301A)
4
5 Dawson moved approval of the request, with two amendments. The first amendment is
6 on Council packet page #69, section 7.4(3) to read, "...at the election of Seller, subject to
7 approval of the County, for further capital improvements..."
9 Hoag commented that she made the motion in committee because the income from the
10 principal is used to operate the park. If the seller is allowed to draw from the principal without
11 the County's approval, the County could lose funds for operating the park.
12
13 Motion to amend carried unanimously.
14
15 Dawson moved the second amendment, which was to have the contract approved subject
16 to an interpretive agreement between the Whatcom County Land Trust, the Nessett Farm
17 Foundation, and Whatcom County. The interpretive agreement is a clarification of certain points
18 in the contract to assure the County would have full public access and the use will always be
19 available.
20
21 Nelson stated that the interpretive agreement is similar to the Squires' Lake agreement.
22 Funding to be used is from the Conservation Futures fund, which are taxes approved by the
23 voters of Whatcom County for the purpose of purchasing park lands for future use. These
24 dollars are important and can't be frivolously spent. In exhibit A, the Conservation Easement
25 agreement, there are items that would not have a benefit to the community as a whole. The
26 Conservation Easement Agreement was a trust formed between the Whatcom County Land Trust
27 and the Nessett family, so the County can't change the agreement without consent of all parties.
28 A meeting has been scheduled to work on the agreement before the County enters into the
29 Purchase and Sale Agreement.
30
31 The Council is agreeing in principal to the purchase of the property subject to any
32 changes that would make the Council feel more comfortable with certain items in the
33 Conservation Easement agreement. The Conservation Easement agreement will come before the
34 Council. Some of the issues of concern are the utilization of public trails, public access, and
35 habitat, among others.
36
37 Imhof clarified that the amendment would be to make the purchase subject to the
38 interpretive agreement regarding the Nessett Conservation Easement agreement.
39
40 Dave Wareing, Deputy Administrator, stated that Roger DeSpain, Parks Director, was
41 concerned about the time frame. He asked the Council to add the contingency that approval of
42 the interpretive agreement by the Prosecutor would suffice in lieu of Council approval because
43 Council will not meet again until September. That is far beyond the deadline for the purchase
44 and sale agreement.
45
Regular Council Meeting, 8/11/98, Page 8
I Nelson asked whether the Council's agreement to the Purchase and Sale Agreement
2 would obligate the County. DeSpain responded that if the agreement on the interpretive
3 agreement is reached, then the County would be obligated.
4
5 Imhof stated that Nelson would oversee the negotiations of the interpretive agreement.
6
7 Nelson re- stated the motion to approve the Purchase and Sale Agreement, subject to
8 approval of an interpretive agreement between the Whatcom County Land Trust, the Nessett
9 Foundation, and Whatcom County.
10
11 Brown stated that he wanted to make a comment on the entire agreement.
12
13 Hoag called point of order and requested a vote on whether to add the interpretive
14 agreement contingency.
15
16 Imhof restated the motion to add the stipulation.
17
18 Motion carried unanimously.
19 Brown stated that the Conservation Futures Fund is not just to buy park lands. The
20 conservation of farm and timberland is allowed by the fund. The appraisal that was done is in
21 error because there are restrictions that the property cannot be farmed beyond its historical use.
22 Also, timber harvesting is not allowed. The timber appraisal is $1.2 million based on the value
23 of timber that can't be harvested. The property can never be developed, farmed, or logged. The
24 Conservation Futures Fund should be used to purchase conservation easements from farmers and
25 timber owners. The County could buy out the development rights for a portion of the land so the
26 farm ground remains for future generations. The same principal applies to timber and resource
27 lands. Conservation Futures Funds should be used to preserve timber and resource lands. The
28 County needs to use funds to buy the development rights for mineral resource lands and timber
29 lands so they are not lost. The County needs to look long term down the road. The County also
30 needs to consider the needs of future generations and look at how much land they will have to
31 live on to use for business and employment along with land to supply the natural resources and
32 food for ever - increasing world population. Whatcom County has three acres of parks,
33 recreational lands, and other public lands set aside for future generations, to every one acre that
34 is available for future living, working, food, timber, and mineral use needs. That ratio cannot be
35 reduced anymore.
36
37 Brenner agreed with Brown, but stated that the Conservation Futures levy was to protect
38 important historical places. The County already started the process, through the Treasurer's
39 office, to find land owned by the County that should be sold. The County is buying out the
40 development rights on this property. This property will end up being a park similar to Hovander
41 Homestead park. The tax money has already been collected. This has the added value that the
42 County will not have to provide maintenance and operations, which is being done by the seller.
43
44 Hoag questioned the appraisals on the land and the timber. The value of the land and the
45 structures on the land, which is $384,000, is less than the amount offered to purchase the
Regular Council Meeting, 8/11/98, Page 9
I property, which is $980,000. DeSpain stated that the trustee felt he would be willing to sell the
2 property for the amount listed. When the last heir of the property wanted it to be a park there
3 was no Conservation Futures funds. This was one of the first conservation easements that the
4 Whatcom County Land Trust worked on. It was the only mechanism he had to ensure the land
5 would become a park. If the County had the money, they would have purchased the property
6 without the conservation easement. The Executor of the estate negotiated the amount. He knew
7 there was a conservation easement, but still there was some value to the property.
9 Hoag stated that $980,000 is overpriced, however that amount would be the principle that
10 the Maintenance and Operations funds would come from. Also, it is important that the public
11 has a place to go that is on the river and available to learn about the past.
12
13 Brown stated that this property is already protected and the timber is not available for
14 harvest. Some conifer could be used for firewood within the property and to enhance the conifer
15 species. The timber appraisal should not be considered.
16
17 Dawson moved approval of the request as amended and stated this property would be
18 used for education and there could also be some selective logging.
19
20 Motion to approve as amended carried 6 -1 with Brown opposed.
21
22 PUBLIC HEARINGS
23
24 1. RESOLUTION APPROVING VAN WYCK ROAD ASSESSMENT
25 REIMBURSEMENT AREA AND ASSESSMENT (AB97 -413C)
26
27 Jeff Monsen, Public Works Director, gave a staff report and referred to the memo he
28 submitted to the Council earlier in the day. The summary addressed concerns brought forward at
29 the Public Works committee. The purpose of the hearing is to identify the types of
30 improvements proposed for the roadway and that recovery of the expenditure for those
31 improvements would be collected from individuals developing in the area within the next fifteen
32 years. If development were to occur beyond fifteen years, they would no longer be subject to the
33 reimbursement assessment. If they were able to find access by another route, they also would be
34 exempt from the assessment. The Council must establish whether or not to move ahead with the
35 reimbursement assessment, and identify the benefiting properties and the appropriate level of
36 assessment.
37
38 The items from the work session are:
39
40 1. The correct calculation of amount per future lot is $3,613, not $4,080 per lot.
41
42 2. The announcement gave the Council the ability to make adjustments during the hearing
43 process of +/- 40% and a 10% contingency was absorbed into that. He requested that
44 Council allow a 10% contingency to be included. A contingency increases the maximum
45 amount that could be assessed. The actual assessment would be based on the actual
Regular Council Meeting, 8/11/98, Page 10
I project. The dollar amount to be set is the maximum assessment allowed regardless of
2 the project cost. If the project cost were below the maximum assessment, it would be
3 reduced.
4
5 3. The County committed to expend approximately $89,000 towards improvements. In the
6 proposal, a portion of the $89,000 would be recovered in future reimbursements. If
7 additional monies were to be subtracted from the amount to be recovered over time, then
8 the per lot assessment would be reduced.
9
10 4. Regarding the concept of applying a credit to individuals that have already invested in
11 improvements on the roadway, he had a difficult time finding an objective way to
12 calculate a credit. There is value in the existing roadway placed by current residents. He
13 deferred to Council to apply a credit. Whatever credit is applied would need to either be
14 absorbed by the County in its share of the project cost or deferred to other properties that
15 have not yet been assessed. The public notice of the hearing allows Council the
16 discretion in how to apply the assessments and to conclude the matter. If Council goes
17 beyond the maximum dollar limit regarding the +/- 40 %, or if more property were added
18 to the area, then a new public notice and hearing would be required.
19
20 Brenner questioned whether residents ordinarily pay for roads to be brought up to County
21 standards prior to the County including the road into the County road system. Monsen stated
22 that normally residents would have brought the road up to County standards. One reason the
23 County is going to contribute a share to bring the road up to standards is that it should have
24 already been done. However, if the County gives property owners credit, someone else would
25 have to pick up the cost.
26
27 Brenner questioned whether, all things being equal with any other road, the road
28 improvements would be fully funded by other property owners. Monsen stated the intent is that
29 if developers are required to make roadway improvements that benefit only themselves, they
30 have a means to recover costs from future development. The ordinance allows the County to
31 play that role.
32
33 Hoag questioned whether the County would have to change anything in the contract to
34 count the costs of the culverts being lengthened and the sight distance improvements, as outlined
35 in item #3, as public expenditures. Monsen stated that the calculation recovers funds through
36 future reimbursement. If they should be public expenditures, then Council would have to make a
37 motion to remove those items from the portion to be reimbursed.
38
39 Imhof opened the public hearing and the following people spoke:
40
41 Mike Lipscomb, 706 Dupont Street, represented the Perkoviches who own the end 40
42 acres. They will be a latecomer. Each of the property owners that would benefit from the
43 improvement should pay an equal share. The Bliss /Lewis people are at the end of the
44 improvement and are paying $2,000 per lot when people developing later would pay $4,000 per
Regular Council Meeting, 8/11/98, Page 11
I lot. He didn't understand why people farther down the road would have to pay twice as much
2 assessment. He would like Public Works to work out a method for all owners to pay equally.
3
4 Brown asked for clarification on the parcel that Lipscomb represented, which is parcel
5 #8.
6
7 Monsen responded that the current method is equal share for all future lots for
8 development. The Bliss and Lewis properties were charged $2500 per lot to deal with the
9 situation, which was too low. That is why the County's share is more substantial and they are
10 trying to address what has not been appropriately recovered in the past without shifting that
11 burden onto future developers. That has already been subtracted out. The project road as a
12 County maintained road goes to the Bliss/Lewis property, not farther. However the project will
13 include initial roadway improvements to those back properties, but they will not be established
14 as a County road.
15
16 Greg Anderson, 347 Van Wyck Road, is one of the latecomers and one of the original
17 contributors to building the private road that now exists and is valued at $100,000. He referred
18 to the latecomers' ordinance that was passed previously which stated that credit may be given to
19 property owners who paid more than their share. He asked for credit for his participation in the
20 existing private road and to be released and exempt from the proposed fees.
21
22 Cindy Anderson, 347 Van Wyck, stated that a previous letter from Dick Prieve stated that
23 they would not be allowed participation in the extension of culverts and the extensions would be
24 done to the best interest of the County, its taxpayers, and the salmon program. Because of that
25 reason and because the sight distance is a safety issue, she asked that they be recognized as
26 public benefit, not to the benefit of only the properties along the road. That should be taken into
27 consideration.
29 Hearing no one else, Imhof closed the public hearing.
30
31 Brenner moved approval of the ordinance.
32
33 (Clerk's Note: End of Tape 1, side B)
34
35 Brenner moved to amend by adding language that states: "Those who previously
36 contributed to the road improvements will be given in -kind or financial credit. Money to be
37 reimbursed to the original contributors will be borne by future property developers." She wants
38 to make sure that the people that have contributed so far, and have contributed more than their
39 fair, share be reimbursed.
40
41 Imhof stated that a portion of the estimated value of the road is a better method for
42 calculation.
43
44 Brenner accepted that as a friendly amendment.
45
Regular Council Meeting, 8/11/98, Page 12
I Nelson stated that when any future development occurs and the road must be expanded or
2 improved, all property owners would bear the costs, but credit would be given to those that have
3 previously contributed to the roadbed.
4
5 Brenner stated that in the end, everyone contributes equally.
6
7 Sutter stated that the formula is $122,400 added to the amount of the current
8 improvements of $100,000 and divided by the total number of lots, 43 to determine $5,186 per
9 lot. If someone has contributed more than $5,186, then they have money coming back. That
10 money would come back from others who pay that exact amount of $5,186. That amount
11 includes the figure that isn't going to be paid out again. Those who have paid more would be
12 reimbursed from the funds collected from the assessment not yet received.
13
14 Brenner accepted Sutter's formula as a friendly amendment in addition to Imhof's
15 friendly amendment.
16
17 Imhof questioned the difference from the formula proposed in Monsen's letter. Sutter
18 stated that it doesn't take into account the estimated $100,000 of the current road value, and it
19 makes it more difficult to determine contributions that have already been made. This formula is
20 very simple.
21
22 Hoag suggested assigning a value to the footage of the road instead of making people
23 prove how much they have already paid. Also, she would like to remove the value of the
24 culverts. That has a value to the general public. That would reduce the figure. She approved of
25 Sutter's formula. Also, the people that have put in the road have had use of the road all these
26 years. That should be taken into consideration. Since they have already put money into the road,
27 they shouldn't have to pay the same amount as new developers, the assessment should not be
28 exactly the same.
29
30 Monsen stated that he could not come up with an objective method to apply credit.
31
32 Brown stated that reducing the price due to use has been offset by what they have paid in
33 maintenance.
34
35 Brenner again stated that she would take Sutter's formula as a friendly amendment.
36
37 Sutter stated that the adjusted figure is $4,847 per lot, based on square footage. The
38 formula takes the total amount divided by the total number of lots. People would have to prove
39 how much they have contributed. Brown stated that people would not have saved proof of
40 money spent.
41
42 Monsen stated that if this is not approved tonight, he would need enough direction to file
43 with the Treasurer a number not to exceed a certain amount if there is an intent to collect an
44 assessment.
45
Regular Council Meeting, 8/11/98, Page 13
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Brenner accepted Sutter's formula as a friendly amendment to be worked out by the
Public Works Director and negotiated with the property owners based on square footage.
Brenner restated the motion to have a formula for reimbursement to original contributors
based on square footage.
Monsen asked for clarification. Whatever credit is applied would be shifted to future
development and he must contact existing residents. He asked Council to identify which
properties specifically have contributed for each property.
Hoag stated that she understood the intent of the motion was to divide the assessment
among all lots, but count as credit the square footage that they have already contributed to the
road. If they have put more money into the road than what they would be assessed, then they
would be reimbursed the difference. If they put less into the road that would equal the
assessment, they would pay the difference.
Monsen stated that he is unable to do that because a reimbursement can only be
accomplished if, prior to the work being accomplished originally, the resolution was in place.
Council can only talk about future development and future expenditures.
Imhof suggested holding the item in committee and setting the value not to exceed
$5,000. Council agreed to a concept of an assessment not to exceed to $5,000 per lot and the
details will be worked out in the next month.
$5,000.
Imhof moved to hold in committee and to approve the maximum assessment amount of
Motion carried unanimously.
2. ORDINANCE AMENDING ORDINANCE 97 -045, ESTABLISHING A CODE OF
ETHICS FOR ELECTED PUBLIC OFFICIALS (AB98 -194A)
Imhof opened the public hearing and, hearing no one, Imhof closed the public hearing.
Brenner moved approval of the ordinance. There is a scrivener's error on page 176,
section 4.2(1).
Sutter stated that there are several scriveners' errors.
Brenner stated that this language is plagiarizing state law and brings it under the County
Code. It passed unanimously in committee.
Imhof directed all scrivener's errors are to be corrected by the Council Clerk.
Regular Council Meeting, 8/11/98, Page 14
I Sutter questioned Council packet page #173 in the new section and requested clarification
2 of the definition of "private interest" and how far does private interest extend? Brenner stated
3 that this is exact wording from state law and there is case law to uphold.
4
5 Sutter stated that she needs to know what the Code means in order to comply. Brenner
6 stated the definition is determined by case law.
7
8 Frakes stated that the language is from the constitution. There is some case law that
9 discusses financial interest. There is no definition.
10
11 Sutter stated that the Council must make the definition themselves.
12
13 Brenner suggested "as defined as direct financial interest" and asked for legal opinion.
14 Frakes stated that the Council could get as broad or narrow in scope as they want. There is very
15 limited case law available and they are very specific situations, so there may not be much
16 guidance the case law will give. Council needs to determine what "private interest" means.
17
18 Brown moved to hold in committee to determine the definition.
19
20 Motion carried unanimously.
21
22 3. ORDINANCE ESTABLISHING WHATCOM COUNTY CODE 16.28, MANURE AND
23 AGRICULTURAL NUTRIENT MANAGEMENT (AB98 -254A)
24
25 George Boggs, Whatcom County Conservation District (CD) Coordinator, gave an
26 overhead projector presentation on manure management. The background and purpose of the
27 proposed ordinance is due to the closure of the Portage Bay shellfish beds due to elevated levels
28 of fecal coliform, and brought forward by the Portage Bay Closure Response Team. One of the
29 activities called for in the strategy in response to the closure was to adopt an ordinance to
30 discourage farming practices that contribute to the fecal coliform in the Nooksack drainage.
31 Identified potential sources of contamination include failing septic systems, wildlife areas,
32 sewage treatment plants (STP), stormwater, industrial waste, and agricultural waste. The
33 Department of Health (DOH) report listed agricultural waste as the leading potential contributor
34 to the downgrade. Fecal coliform in the surface run -off shows that human and animal waste is in
35 the water. Surface run -off also impacts salmon. Canadian studies show that ammonia in the
36 Sumas watershed is well above the lethal amount to freshwater fish. Ammonia is associated with
37 run -off from animal and human waste. Implication of excess nutrients into surface waters affects
38 both humans and salmon. The concentrations of fecal coliform throughout the watershed are
39 above the clean water standard of 100 per 100 milliliters. The Lynden STP is a major contributer
40 to fecal coliform within the drainage. There was a recent station sampling and downgrades of
41 stations 11 and 12. Station 13 has now failed. The remaining stations will also fail with another
42 sampling like the most current sample. Because of the downgrades, the County is required to
43 create a Shellfish Protection District and also adopt an effective shellfish protection program,
44 which would include dealing with any elements deemed appropriate that deal with the non -point
45 pollution that threaten water quality. This includes, but is not limited to, ensuring that animal
Regular Council Meeting, 8/11/98, Page 15
I grazing and manure management practices are consistent with best management practices. The
2 closure response strategy set December 21, 2000 as a goal to re -open the beds. Manure should
3 not be applied as a waste, it is applied as a nutrient for a crop to use. The effects of manure
4 application without a crop is that it will run off the surface water into the creeks, streams, and
5 then into the shellfish, or it will get into the groundwater and drinking water. This ordinance
6 would manage the spread of all manure within 50 feet of drainage ditches that lead to rivers and
7 streams. The effects of the Critical Areas Ordinance require no spreading or agricultural
8 activities within 50 feet of a non - salmonid bearing river or creek. One specific purpose for the
9 buffers was to protect the shellfish beds. The proposed ordinance closes the loophole in that
10 regard. There is flexibility on the 50 foot buffer, based on soil, slopes, and the manure
11 application method. Also, the spring dates for application can be advanced based on fair weather
12 and T Sum 200. The penalties are the same as the Critical Areas Ordinance, which provide for
13 an individual fine of $1,000 per offense. The County is responsible for enforcement. The local
14 DOE has expressed a willingness to enforce in the course of its inspections. The objectives are
15 to be able to have a farm with adequate storage to carry through the winter and to apply the
16 nutrient as it should be, to meet the crop needs.
17
18 Dave Garland, State Department of Ecology (DOE), continued the presentation on
19 groundwater. He cited his professional background. He supported the proposed ordinance
20 because there is an abundance of studies that indicate it is a good idea to restrict the manure
21 application practice. The Sumas aquifer is a permeable sand and gravel aquifer.
22
23 (Clerk's Note: End of tape 2, side A)
24
25 Garland continued his presentation and stated that typical dairy locations are on the
26 Sumas aquifer, with highly permeable soils. Since dairies produce large amounts of waste
27 containing nitrogen, this sets the stage for groundwater contamination of nitrate. Of 250 sites
28 sampled, 21% had concentrations that exceed 10 mg per liter. Most nitrogen that reaches the
29 aquifer is associated with dairies. Studies show that 60% of the total nitrogen reaching the
30 aquifer is associated with dairy manure, whereas 6.5% of the nitrogen is from residential and
31 natural sources. He cited a case study on Pangborn Road. The area wells were monitored for
32 over two years, looking for lagoon leakage. In February 1994, a non - agronomic application of
33 manure was made to 5 '/Z acres, 600 lbs. of nitrogen, to bare ground. In May of 1994, the wells
34 were tested to a very high amount, compared to the levels prior to the application. One well still
35 exceeds the drinking water standard of 10. Aquifer flushing can occur if the source stops. The
36 wells are approximately 20 feet deep. The reason the groundwater is vulnerable is because the
37 water table is 5 -10 feet below the ground surface. Certain times of the year are more appropriate
38 than others for manure land application. He displayed a graph that showed the average rainfall
39 by month in inches based on data collected over 55 years. Significant precipitation can cause
40 run -off nutrient contaminated water and can assist nutrients in leaching past the root zone.
41 Precipitation is at or above 3 inches per month between March and October. Evapo-
42 transporation (removal of moisture in the soil by plants) is at or above three inches from April to
43 September. That indicates it is the most optimal time for application. Crop nutrient uptake is
44 greatest in the spring and early summer months, then levels off after August. One approach for
45 reducing leaching losses is to supply nutrients to the crop at a rate equal to the rate of crop
Regular Council Meeting, 8/11/98, Page 16
I uptake. There is no uptake of nitrogen during November through March. As a general rule,
2 winter application of manure on bare ground causes groundwater contamination.
3
4 (Clerk's Note: At the end of the presentation, a ten minute break was taken)
5
6 Imhof opened the public hearing and the following people spoke:
7
8 Bob VanWeerdhuizen, 7026 Noon Road, requested that this be tabled so the dairy
9 industry can get together to come up with a compromise.
10
11 Jeffrey Howlett, 3605 Breckenridge Road, Everson, stated that he is a veterinarian with
12 the State Deparatment of Agriculture. He has been in Whatcom County since 1990. It is more
13 difficult to keep a farm going than to tell someone what they are doing wrong. The Whatcom
14 County dairy industry is in trouble. Economic hard times have fallen on the industry. Cow
15 numbers have peaked and are now declining. It costs two dollars more to milk cows in Western
16 Washington than in Eastern Washington. The problem with the ordinance is that the September
17 1 date is arbitrary and a good part of September has summer weather. There is no transition
18 period for people to comply with the ordinance. Some dairies do not have the lagoon capacity to
19 comply. With no transition period, it will force people out of business. The industry has only
20 had 40 days in which to respond. The Environmental Protection Agency (EPA) and State
21 Department of Ecology (DOE) are already involved. They also have to coordinate with Federal
22 Department of Agriculture (FDA) inspectors also.
23
24 Penny Nielson, 6757 Nooksack Road, Everson, is not a dairy farmer. She lives in a dairy
25 community. All the dairies are top -notch operations. She cannot support the ordinance in
26 present form for two reasons. The first reason is that it is not right and it is not reasonable. The
27 September I date is an unreasonable date. The first day of autumn isn't until the end of
28 September. September is a summer month. The second reason is that there is no transition
29 period allowed for the farmers. She first heard of it on July 21St. Crops would have been planted
30 differently had farmers known of the proposed ordinance. Also, there is a lack of farmer input in
31 the ordinance. They should have been able to form an advisory committee.
32
33 Don Nielson, 6287 Siper Road, Everson, stated that the September I date is wrong. The
34 timing is wrong with the crops. The Soil Conservation District may have led the Council astray.
35 Liquid fertilizer is necessary on corn ground. There is no cover crop shown in the examples.
36 Good farmers plant a cover crop. To limit the time is the wrong step. The input the Council
37 needs is from Washington State University.
38
39 Dan McShane, 1451 Grant St., Bellingham, stated that the ordinance is already a
40 compromise and encouraged passage as is. There are going to be some farmers that will not
41 have lagoon capacity. The Council may put it off to go into effect later and give them a chance
42 to plan their crops for next year.
43
44 Jay DeYoung, 9056 Telegraph Road, Sumas, submitted a petition that includes 315
45 signatures opposed to the ordinance. He would like to table the issue. There are no nitrates in
Regular Council Meeting, 8/11/98, Page 17
I the Sumas Water Association. There is documented proof. The farmers would like to come up
2 with their own figures. A report presented was from information from 1995. Since then, there
3 has been strict enforcement. Farmers would like more time to come up with their own
4 information.
5
6 Marian Beddill, 3600 Seeley, Bellingham, encouraged passage of the ordinance with
7 variance and tolerance of the dates. She supported the ordinance because there are two
8 problems: #1. There is pollution in the shellfish beds due to runoff in the groundwater, which
9 creates health problems. #2. There are new regulations from the EPA. There is a factor called
10 the uniformity coefficient of distribution of water and the contribution materials in the water.
11 Some areas get less water and some get more water. The water that is collected in places that get
12 more water either puddles and runs off or goes into deep percolation and contributes to ground
13 water. By that factor alone, it is virtually impossible to manage a large gun sprinkler system to
14 accomplish a uniform distribution and to avoid the circumstances of excess application and its
15 resultant, harmful, excess runoff or percolation in deep water. Best management practices have
16 encouraged the type of activity suggested in the ordinance for years.
17
18 Harlan James, Lummi Nation, 2616 Kwina Road, Bellingham, stated that the Lummi
19 Nation has always harvested shellfish. In the early 1980's, the Lummi nation constructed a
20 sewer system on the reservation to correct water quality problems to certify shellfish beds for
21 marketing purposes. Lummi closed 60 acres of productive beds in Portage Bay in 1986
22 voluntarily at the request of Washington State Department of Health (DOH). The Portage Bay
23 shellfish beds have been closed by DOH in December 1996 to commercial harvest due to fecal
24 coliform levels. This closure represented about $250,000 annual harvest. The EPA began
25 compliance enforcement in February 1997. In August 1997, DOH certified that pollution comes
26 from dairy farms. The County adopted Portage Bay Closure Response Strategy on March 24,
27 1998, which reports dairy wastes are equivalent to 1 million people. To date, fecal coliform
28 remains high. An additional station has been identified for de- certification, adding to the current
29 annual loss. There is a potential loss of $900,000 annually if the remaining five stations are de-
30 certified. Lummi Nation supports adoption of the ordinance as part of a solution to an urgent
31 health and economic problem for the Nation.
32
33 Gail Luedke, 7963 Woodland Road, Ferndale, stated that she is concerned that the cities
34 are allowed to pump pollution into the river. The cities should have zero tolerance for pollution
35 as the farmers have a zero tolerance. Also, the weather is not dictated by the date. Manure
36 should be spread according to how many days of dry weather have occurred. The type of land
37 should also be considered. Each farm is different.
9H
39 Craig MacConnell, Washington State University Cooperative Extension, distributed a
40 portion of the Manure Management Guidelines for Whatcom County, published in 1995 by
41 Washington State University (WSU). Technical reviewers of the guidelines include many
42 technical experts. There was also input from the Whatcom County Manure Management
43 Committee and was the result of years of research from WSU in Whatcom County and other
44 parts of Western Washington. There are two statements highlighted: 1. Never apply manure to
45 bare cornfields, except solid and separated solids from the beginning of September to late
Regular Council Meeting, 8/11/98, Page 18
I February. The ordinance does not talk about established grass, but bare ground corn stubble. 2.
2 Do not apply manure in fall or early winter unless it is a part of an approved farm plan, which is
3 the other part of the proposed County ordinance.
4
5 (Clerk's Note: End of tape 2, side B)
6
7 MacConnell asked the Council to look at residual soil nitrogen after corn has been
8 harvested, in the form of nitrates only, which is in the leachable form. Hundreds of pounds of
9 nitrogen was found after the corn was harvested. That data indicates that there is plenty of
10 nitrogen already existing in the soil that the cover crop could utilize.
11
12 Carl Weimer, 1055 W. Laurel Road, stated that there is a contamination problem. The
13 ordinance is based on good science. There may be a need for a way to address the capacity
14 problem and lack of lagoon storage. The Council has been a good advocate for clean water in
15 the County. He requested the Council maintain its advocacy role.
16
17 Casey Lankhaar, 9914 Bender Road, Lynden, urged the Council to postpone the
18 ordinance. In case it is not postponed, he questioned whether DOE would allow for
19 enforcement.
20
21 Hoag clarified that DOE volunteered to enforce, but their funding might be in jeopardy.
22 That idea is still uncertain.
23
24 Roger Bajema, 792 E. Badger Road, stated that he was not representing the Dairy
25 Farmer's Board, and that farmers want clean water. A cow will drink 80 gallons of water per
26 day. He questioned why the County would want to make their own manure management plan.
27 There is a plan on the state level that should be the only regulation. Also, the County should
28 determine the type and source of fecal coliform. In addition, there is a starling problem and
29 people have taken their own money to put their downspouts directly into the ground to
30 underground drainage. The starlings contribute to the fecal coliform levels. Investigators need
31 to do DNA testing to determine where the fecal coliform is coming from. There is lot more
32 going on than contamination by the cows. The Dairy Commission spends $5 million per year.
33 When the EPA reprimands someone, it is made into a big deal. The industry needs Council
34 support, not criticism. Dairy farmers are the biggest taxpayers in the County.
35
36 Linda Smith, 992 Paradise Road, Ferndale, questioned whether the ordinance would take
37 precedence over state regulations. Hoag responded that this is a stop -gap measure until state
38 regulation 6161, which requires farm plans to be in effect by the year 2003. The people that do
39 not have a management plan would fall under the ordinance. Those with a management plan
40 would fall under 6161 regarding fines. If a farmer does not have a farm plan, then according to
41 the County ordinance, the farmer would have to stay 50 feet away from the stream and not apply
42 manure to bare ground or corn ground during that time. Fines for violation would be determined
43 by the legislation under which they fall. Smith stated that the September 1 date is unworkable
44 and she was in favor of tabling the issue. Many farmers race to plant corn and then work the
45 manure into the ground. There is vigorous growth. If there was too much nitrogen, the crops
Regular Council Meeting, 8/11/98, Page 19
I would be burned. The legislation also requires more paperwork from the farmers. If the plan
2 goes through, it has to be workable to the farmer. Farmers are overburdened. Also, regarding
3 inspectors, they are a problem because they are determined to find something wrong.
4
5 Dan Coyne, 9103 Chestnut Hill Lane S.E., Olympia, represented Darigold. Darigold
6 shares the Council's concern for clean water. He did not express opposition or support of the
7 ordinance, but requested Council consider the timing of the ordinance. It was developed quickly
8 and there has not been enough time for review. The Council has gone beyond requirements to
9 inform the public, however the Council needs to further inform the farmers. Also, the County
10 should not intrude in farmer's everyday running of their business. Instead, tell them the results
11 they must achieve. Regarding state legislation 6161, the Farm Management Plan requirements
12 are phased in over time and that has to do with ability of conservation districts to respond to the
13 workload that is created when farmers need to develop the plans. It also has to do with the DOE
14 ability to do inspections, react, and respond to the requirements in the new legislation. The next
15 reason for the ordinance, he was told, was because of the Endangered Species Act (ESA). The
16 state is developing an agricultural module to deal with agricultural issues related to the ESA.
17 There is also an MOA between state and federal agencies required to implement the ESA. Cost
18 is next issue. Dairy farmers need answers as to what the cost would be to implement and enforce
19 the ordinance. The final reason is the shellfish protection statute. Compliance is necessary by
20 the County and he supported that. The Council should read RCW 90.72.065 regarding the
21 shellfish statute. The only guidance given to the County is to contract with conservation districts
22 to get the plans for farmers developed. It doesn't say anything about restrictive ordinances.
23
24 Brenner questioned what kind of performance standards would accomplish the goals that
25 would be less costly. Coyne responded that the performance standard is zero discharge, as has
26 been the law for 20 years. Brenner stated that zero discharge has not been achieved in the past
27 20 years. Coyne responded that, when there have been violations, it has been because of poor
28 enforcement. He urged the Council give Senate Bill 6161 a chance to work.
29
30 Sutter stated that if monitoring for zero discharge was the standard, then a lot of farms
31 would have to be monitored. In terms of man -power and cost, it would be very expensive.
32 Coyne responded that if the County goes with the requirement to have a plan that manages the
33 application of nutrients during the growing season for dairy farmers, the County would
34 accomplish the same goals as if there was strict enforcement and monitoring. This proposed
35 ordinance intrudes into peoples' businesses and imposes dates that don't make much sense in
36 terms of the management of the farm. This ordinance may not even be in compliance with state
37 guidelines.
38
39 Ron Lagerway, 2112 Reeds Lane, Everson, stated that there is an advisory committee
40 regarding flood control. There needs to be an advisory committee on this issue right away.
41
42 Don Peterson, Mayor of Sumas, stated that Sumas draws water from wells at the border.
43 A large part of the aquifer is in Abbotsford, B.C. Canada has nitrate problems, therefore Sumas
44 has nitrate problems. Sumas provides water to various water associations. Nitrate studies
45 indicate that by the year 2010, high nitrate levels could shut down Sumas' water. They are
Regular Council Meeting, 8/11/98, Page 20
I working with Abbotsford, B.C. Sumas is now building a sewer treatment line to Abbottsford
2 sewer treatment plant to eliminate effluent going into the river. Sumas is also modifying the
3 shoreline protection plan. If the trend continues, 2000 people will need to find potable water.
4 He supported the ordinance. If there are immediate problems for dairy farmers that need more
5 time, give them time to comply, but the County needs to proceed.
6
7 Rod DeJong, 1364 Abbott Road, Lynden, stated that HB6161 is already in effect and
8 should not be duplicated. Fines that have been assessed in the last few years have gotten the
9 farmers' attention. Don't duplicate the regulations.
10
11 Auggie Berendson, 3125 E. Badger Road, stated that the County needs an agricultural
12 advisory committee to avoid this situation in the future. Also, the legal notice in the Lynden
13 Tribune did not report the date of the meeting.
14
15 Hoag stated that the Lynden Tribune misprinted the legal ad, but a press release was on
16 the front page of the farm report. The correct legal notice was advertised in the Whatcom
17 County official newspaper, the Bellingham Herald.
18
19 Sherm Polinder, 670 Polinder Road, Lynden, requested the Council table the proposal.
20 Not enough dairymen knew about it soon enough. Also, there are many municipalities in the
21 state that do not have to comply with zero discharge. They have until the year 2003 to comply.
22 If that is the case, he would like to have assurance that Whatcom dairy farmers are on a level
23 playing field.
24
25 Hearing no one else, Imhof closed the public hearing.
26
27 Dawson stated that the shellfish problem in the county has accelerated the situation.
28 There is a job that needs to be done quickly. She would want to have a buyoff of the people in
29 the dairy industry. The consensus is that the Council could move the date forward, but it should
30 be no more than a month to work with George Boggs from the Conservation District.
31
32 Sutter questioned whether the ordinance was worked on by the Shellfish Protection
33 District Advisory Committee. Boggs responded that the Portage Bay Shellfish Protection
34 District response strategy called for an ordinance addressing these kinds of problems. The
35 County Council asked the Conservation District to pull together the Portage Bay Closure
36 Response Team to draft the ordinance. It is problematic on how to comply in such a short time.
37 This ordinance addresses spreading manure as a waste, as opposed to using it as a nutrient.
38
39 Sutter questioned who was on the Closure Response Team. Boggs responded that the
40 Committee consisted of himself, John Gillies of the Natural Resources Conservation Service
41 (MRCS), Claire Cedebaca of the Nooksack Tribe, Michael Cochran of the Lummi Tribe, Dick
42 Grout from the Department of Ecology, Matt Kaufinan, Dave Gruesemeyer, Regina Delahunt of
43 the Whatcom County Health Department, Sherm Polinder, and Bob VanWeerdhuizen of the
44 Dairy Federation and the Farm Bureau.
45
Regular Council Meeting, 8/11/98, Page 21
I Sutter stated that the weather is a varying factor that strengthens the case that each farmer
2 needs an individual plan in place. She suggested including the state farm plan as part of the
3 County ordinance to exempt a farmer from the ordinance. The County's ordinance is not a stop
4 gap measure to 6161. It does not specifically address manure application or non -dairy
5 applications of manure. It also states the dairy farmer shall not be held liable for violations of
6 the chapter resulting from spreading materials on lands other than where the nutrients were
7 generated when the nutrients were spread by persons other than the dairy producer or the dairy
8 producer's agent. Also, the County needs to have an ordinance to control non -dairy application
9 of manure. The activity required by the ordinance is already considered best management
10 practice. Those who should be concerned about being out of compliance are those not engaging
11 in best management practices.
12
13 Hoag clarified that the September 1 date only applies to bare or corn ground. The reason
14 that the ordinance specifies that date is because the corn still needs to be in the ground. The
15 point of the ordinance is that after that date, it would fall under the ordinance so that when the
16 farmer removes the crop, whatever the date, he needs to follow the terms of the ordinance. That
17 date was chosen arbitrarily to make sure that the corn would still be in the ground, but not during
18 a time which the farmer would have been putting manure on the crop. The petition that was
19 submitted has incorrect information. One of the items stated that to apply manure in the spring, a
20 lengthy approval process involving a plan from the Conservation District (CD) would be
21 required. The ordinance stated that approval of the Conservation District is only a matter of a
22 phone call to the CD. The number of days of dry weather is not a factor because the issue is
23 application to bare ground. The application is either going to run off when the rain comes or it is
24 going to go into the groundwater because there is no crop to absorb it. The dairy industry will
25 not get negative press and will not have to spend a lot of money on advertising if the problems
26 would be fixed. Zero discharge has been the law for 20+ years, but the fecal coliform counts are
27 rising. A performance -based system is not working and is difficult to enforce. It is much easier
28 to enforce against practices that have been proven to cause the problem. The County does not
29 want to put farmers in a bind this year and understands that many have planted their crops not
30 knowing about the proposed ordinance.
31
32 (Clerk's Note: End of Tape 3, side A)
33
34 Hoag continued to recommend that the County change the date for bare ground and corn
35 ground. The County will still have nitrate problems. The stipulation would be that the manure
36 would need to be plowed in and a cover crop would have to be in place by October 1 so that
37 those that have planted corn can do something with their manure. It would still keep it out of the
38 rivers and there would still be a 50 foot buffer in place. The County would be addressing the
39 most pressing issue of fecal coliform. Also, she would like to form an advisory committee. The
40 Council has constantly been responding to the farmers and has made every effort to notify the
41 farmers. It would be much easier for the Council if an advisory committee could bring concerns
42 directly to the Council. Lastly, the Council does not meet for another month. She advised
43 approval of the ordinance to put the buffers in place and with the revision of the October 1 date.
44 If there are concerns that come up, they can be brought forward to the Council. The ordinance
45 can be changed to address concerns.
Regular Council Meeting, 8/11/98, Page 22
2 Brown stated that when farmers put in their crops, this ordinance wasn't an issue and it
3 will be an undue burden. The Council needs to table until the end of the 1999 legislative session.
4 One of the main arguments for the ordinance is that state law had loopholes and did not address
5 all of the problems. It is better to work with legislators to amend the existing state law than
6 create a new law and another layer of legislation. The Council needs to allow farmers to move
7 into compliance the same way the sewer treatment plants are moving into compliance. From the
8 last meeting regarding Portage Bay, the sewer treatment plants are not having anything done
9 until their permits are up for renewal. Farmers need to be allowed to move into compliance
10 gradually. Also, this ordinance, without a one year grace period, puts undue burden more on
11 Whatcom County farmers than other farmers in the state. Other farmers in the state do not have
12 to comply with state legislation until the year 2003. That puts Whatcom County farmers at a
13 financial disadvantage for several years, which may be enough burden to force some out of the
14 business. The Council needs an agricultural advisory committee.
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16 Brenner stated that best management practices have been in practice for several years and
17 most farmers have stated that they operate under best management practices. She is unclear
18 about how the transition would be a problem. If there are cover crops planted and best
19 management practices are followed, then the ordinance would not apply. She would like to see
20 the date extended to October. Cities should have zero tolerance for pollution. Performance
21 standards do not work if the County is still having problems and the ordinance would not affect
22 anyone if there were no problems. She recommended adoption and the creation of an agriculture
23 committee to review the farmers' concerns. Regarding state law, every time the County defers to
24 state or federal law, it is accused of getting rid of local control. The purpose is to keep local
25 control and be sensitive to the local people so the state and federal governments won't place
26 heavy restrictions. She suggested the agriculture committee bring forward the recommendations
27 of the farmers that can't meet the deadlines.
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29 Nelson stated that he is concerned about process. The Critical Areas Ordinance had
30 many public hearings and had to be re- drafted many times. Everyone cares about water quality.
31 The Council has not gone through the public process that has been requested by the citizens,
32 although waiting a year is too long. Shellfish protection is something Whatcom County has to
33 consider that other counties may not have to consider. It is fair to allow a committee to be
34 formed and the dairy federation is capable of putting together their own committee. They should
35 come forward with an alternative that will provide the protection to the watershed and have
36 proven technology to reduce nitrate levels for protection of the shellfish areas. He suggested
37 tabling the ordinance until the next meeting. The Council has already agreed to extend the
38 timeframe, so it will allow greater opportunity for public participation and restore trust in
39 government. He suggested the advisory committee also look at enforcement and appeal
40 processes.
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42 Nelson moved to table the ordinance until the next regular Council meeting.
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44 Sutter stated that there still is not enough time from the adoption of the ordinance to
45 implement before the rainy season. Nelson replied that this gives the farming community one
Regular Council Meeting, 8/11/98, Page 23
I month to respond with their concerns. Sutter stated that they would complain that they only have
2 a few weeks to comply. Imhof stated that the farmers know, as of now, to be prepared.
3
4 Hoag clarified that the ordinance language regarding a cover crop does not allow a total
5 exemption if a cover crop is in place. The ordinance states that there must be a soil test done and
6 a determination that the soil needs more nitrogen to feed the cover crop. The state legislation
7 that required the County set up the Shellfish Protection District also requires the County adopt an
8 effective protection program and to insure that best management practices are being followed.
9 Best management practices guidelines cover more than what is included in the proposed
10 ordinance. Best management practices also restrict applications to grass and address solids. The
11 County is trying to comply with state law and addressed only what is the biggest contributor to
12 the problem. Unlike the Critical Areas Ordinance, this is not new regulation, but simply
13 regulation reinforcing what state law says and insuring best management practices are followed.
14 Dairy farmers in Whatcom County that are practicing best management are at a financial
15 disadvantage. There is not a level playing field in Whatcom County unless all farmers follow
16 best management practices. Also, buffers need to be in place by September 1, not October 1, due
17 to upcoming testing. She supported adopting the ordinance. Concerns can be addressed and
18 changed. In the meantime, the County would be covered.
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20 Imhof stated that postponement for a month is sufficient. The County owes it to the
21 farmers to give them the ability to come up with options. He supported tabling the ordinance.
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23 Brenner stated that the Council should leave the meeting with an established advisory
24 committee. Imhof responded that the farmers can organize themselves into an advisory
25 committee.
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27 Brown stated that the County doesn't need to dictate how the farmers could achieve their
28 goal. Also, his proposed phase -in period is one year, with only warnings, not fines, issued for
29 one year. It would give the farmers a chance to build more lagoons, change crops, or do
30 whatever they need to do to comply.
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32 Brenner doesn't want give a grace period of one year for people who are intentionally
33 violating the law.
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35 Hoag stated that delaying the ordinance would affect the County's position with the
36 Endangered Species Act and the spring Chinook listing. If the County does not come up with a
37 plan that is approved by the National Marine Fisheries Service, they will impose their own plan
38 with 300 foot buffers. 300 buffers would wipe out agriculture in Whatcom County. They have
39 specifically detailed what they require for approval. The County must have something in place
40 that is proven to work. The only way to prove the smaller buffers would work is if the County
41 can test the water and show lower counts of fecal coliform. If this goes into place now, the
42 County can demonstrate that the smaller buffers would work. It would hurt the dairy industry in
43 the long term if this ordinance is not approved.
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45 Motion to table carried 4 -3 with Sutter, Brenner, and Hoag opposed.
Regular Council Meeting, 8/11/98, Page 24
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(Clerk's Note: Council next handled Other Item #6)
4. RESOLUTION AUTHORIZING THE SALE OF WHATCOM COUNTY SURPLUS
PROPERTY PURSUANT TO WCC 1.10 (AB98 -295A)
Dave Wareing, Deputy Administrator, stated that he looked through the
facility and found six file cabinets that are serviceable and will be pulled for use.
Everything else is not useable and would go to auction.
Imhof opened the public hearing and, hearing no one, he closed the public
hearing.
Brenner moved approval of the resolution without including the six file cabinets.
Motion carried unanimously.
OTHER ITEMS
1. RESOLUTION CANCELING FLOOD CONTROL FEES ON DEPARTMENT OF
NATURAL RESOURCES TIDELANDS (AB98 -299)
Dawson moved approval and reported for Finance and Administrative Services
Committee that the Committee asked the County Executive to put together a letter to the
Department of Natural Resources requesting the ability to collect taxes in the future.
Motion carried unanimously.
2. ORDINANCE AUTHORIZING A CHARGE TO PROVIDE REVENUE FOR THE
ACMENAN ZANDT SUB -ZONE FLOOD CONTROL ZONE DISTRICT, SETTING
A DUE DATE FOR PAYMENT OF SERVICE CHARGES, AUTHORIZING
COLLECTION OF INTEREST AND PENALTIES ON DELINQUENT PAYMENTS
OF ASSESSMENTS AND ESTABLISHING PROCEDURES FOR RECORDATION
AND FORECLOSURE OF LIENS RESULTING FROM DELINQUENCIES (AB98 -
279)
Brenner stated that Other Items #2, #3, and #4 could be handled concurrently. The Public
Works Committee unanimously recommended to return these items to the Sub -Zone Flood
Control Zone Districts to recalculate the charges based only on parcels within the flood plain,
and also based on the same assessed value scale as is used in the general flood assessment.
Imhof stated that the three items must be voted upon separately.
Brenner moved that recommendation that came forward from committee.
Regular Council Meeting, 8/11/98, Page 25
I Imhof stated that people outside of the flood plain impact the flood plain and they are
2 responsible for some of the money. He agreed with a percentage of the flood tax in the existing
3 boundaries.
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5 Brenner stated that if it could be proven that certain parcels outside the flood plain, such
6 as sewage treatment plants, noticeably contributes to flooding, they would be assessed.
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8 Imhof stated that all parcels contribute. Brenner responded that is why the general flood
9 fund exists.
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11 Ed Henken, Public Works Engineering Division Manager, stated that his department
12 looked at the Assessor's database with the proposed calculation method in mind. The
13 Lynded/Everson sub -zone would pay 15 times what they are now paying for the county -wide
14 assessment; for instance, if their current assessment is $30, it would go up to $450. In the
15 AcmeNanZandt sub -zone, the assessment would increase 10 times the countywide assessment.
16 The total amount collected in the AcmeNanZandt area for the parcels in the basin were $4,535.
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18 Hoag clarified that the intent was to use the value of the parcel to determine the database.
19 The value of the property would be the factor used to determine the amount they would be
20 assessed.
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22 Imhof stated that the calculation is a percentage of the County fund. For instance, if the
23 sub -zone had to raise $10,000 and there are 50 parcels at different values within the area, then
24 the assessment would be $200.
M
26 Hoag stated that the Council wants a comparison between what they would pay under the
27 currently proposed flood tax and the Council's proposed calculations.
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29 Brenner repeated the motion.
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31 Ron Bronsema, 8135 Northwood, Chair of the County Flood Control Zone District
32 Advisory Committee (FCZDAC) and the Lynden/Everson Sub -Zone Advisory Committee, stated
33 that the Council deadline is September 4 for approval at the September 15 Council meeting. It
34 also has to go to the Flood Advisory Committee for approval on September 3. The FCZDAC has
35 two weeks with a new Sub -Zone Advisory Committee, there are three new members with no
36 experience. The Committee may not be able to make the deadline.
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38 Brenner stated that it might not get done this year. The Council should not approve
39 something that is easier if it is not fair. If it can't be done this year, then it may not make the
40 deadline. Doing something unfair to make a deadline is not the answer.
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42 Bronsema mentioned that the Sub -Zone Committee budgets included costs not normally
43 included in the flood work. It was the idea of the FCZDAC, when they put together the
44 Comprehensive Flood Hazard Management Program (CFHMP) to make things more equitable.
45 The sub -zones thought that the people that live in the flood plain would be assessed more and
Regular Council Meeting, 8/11/98, Page 26
I those living in the watershed would also be assessed, although less. If the fee is increased, it will
2 be financially difficult for people in the flood zones. The districts would have to scale back on
3 things such as flood plain planning. The Lynden/Everson Sub -Zone Committee budgeted
4 $35,000 for flood plain planning as part of the implementation of the CFHMP. If it can't be
5 done locally, then eventually everyone in the County will have to contribute more.
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7 Hoag clarified that the deadline to assess the property owners is October 1, when it is due
8 in the Treasurer's office. She questioned what would happen if the fall deadline is missed.
9 Bronsema replied that there would not be any funding for 1999.
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I 1 Bronsema stated that all the sub -zone committees were in favor of assessing the funds
12 based on assessed value of the properties. However, they were told that would not be possible,
13 so they proposed a flat fee instead. Lara McKinnon and Bob Mitchell conferred with Keith
14 Willnauer, Assessor, and told the committees that the Assessor's computer system would not
15 handle the request.
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17 Hoag stated that an unfair tax should not be imposed upon people just because the
18 Council is trying to meet a deadline.
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20 Motion to send the items back to the Sub -Zone Committee for re- evaluation carried 4 -2
21 with Imhof and Nelson opposed and Sutter absent.
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23 3. ORDINANCE AUTHORIZING A CHARGE TO PROVIDE REVENUE FOR THE
24 LYNDEN/EVERSON SUB -ZONE FLOOD CONTROL ZONE DISTRICT,
25 COLLECTION OF INTEREST AND PENALTIES ON DELINQUENT PAYMENTS
26 OF ASSESSMENTS AND ESTABLISHING PROCEDURES FOR RECORDATION
27 AND FORECLOSURE OF LIENS RESULTING FROM DELINQUENCIES (AB98-
28 280)
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30 Brenner reported for Public Works Committee and moved to refer Other Items #3 and #4
31 back to the Sub -Zone Committees the same as Other Items #1.
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33 Motion carried 4 -2 with Imhof and Nelson opposed and Sutter absent.
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35 4. ORDINANCE AUTHORIZING A CHARGE TO PROVIDE REVENUE FOR THE
36 SUMAS/NOOKSACK/EVERSON SUB -ZONE FLOOD CONTROL ZONE DISTRICT,
37 SETTING A DUE DATE FOR PAYMENT OF SERVICE CHARGES, AUTHORIZING
38 COLLECTION OF INTEREST AND PENALTIES ON DELINQUENT PAYMENTS
39 OF ASSESSMENTS, AND ESTABLISHING PROCEDURES FOR RECORDATION
40 AND FORECLOSURE OF LIENS RESULTING FROM DELINQUENCIES (AB98-
41 281)
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43 5. RESOLUTION DECLARING INTENT TO ESTABLISH ACADEMY ROAD, DELTA
44 LINE ROAD, HAM ROAD, MERTZ ROAD, TILBURY ROAD, AND VIEW HAVEN
45 LANE AS COUNTY ROADS, DECLARING THAT SUCH ESTABLISHMENT IS A
Regular Council Meeting, 8/11/98, Page 27
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PUBLIC NECESSITY AND, DIRECTING THE COUNTY ROAD ENGINEER TO
REPORT TO COUNCIL UPON THE PROJECTS (AB98 -314)
Brenner reported for Public Works Committee and recommended approval.
Brown stated that this is a resolution to bring the items forward for consideration again.
Henken stated that the resolution instructs him to generate six engineering reports, one
for each of the six roads, and schedule a hearing for the six roads to be accepted into the County
road system at the next regular Council meeting. All the roads are being brought up to County
standards by developers or adjoining residents before they are accepted. into the County road
system.
Brown asked if it would be possible to schedule this item later than the next regularly
scheduled Council meeting because that agenda is becoming very full. Henken responded that
there are developers involved that are waiting for the Council's decision to do further
construction.
Motion carried unanimously.
6. ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY ZONING MAP
FROM RURAL TEN ACRES (R10A) TO RURAL FIVE ACRES (R5A) FOR
APPROXIMATELY 240 ACRES IN THE FOOTHILLS SUBAREA (AB98 -212)
(FROM 612) (SUBSTITUTE ORDINANCE)
Sutter reported for Planning and Development Committee and stated that this comes
forward from committee with a motion to approve.
Goodwin stated that the Planning Commission addressed the four issues the Council
specified and they found additional findings. Those issues were impacts to forestry, water
quality and availability, schools, and changed conditions. The Commission recommended
approval and the Planning Committee concurred.
Brown stated that he would abstain from voting due to a personal conflict.
Hoag stated that there were good points brought up in the committee meeting, including
the fact that there is high unemployment, not a proven shortage of R5 zoning, and that the water
that drains the areas goes directly to the salmon hatchery. She stated that she would not support
the item.
Brenner commented that this is the kind of development that will increase the tax base in
the area. A lot of the social problems are from smaller parcels. The County is working on
economic development in the area.
Motion to adopt carried 5 -1 with Hoag opposed and Brown abstained.
Regular Council Meeting, 8/11/98, Page 28
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(Clerk's Note: Council Member Sutter left the meeting and the Council returned to the
regular agenda to begin Public Hearing Item #4)
7. CONSIDERATION OF APPEAL OF HEARING EXAMINER'S DECISION ON FILE
NO. CUP 98 -0003, FILED BY SHERILYN WELLS (AB98 -222)
See "Announcements."
INTRODUCTION ITEMS
Brenner moved acceptance of the Introduction Items, including the addendum.
Motion carried unanimously.
1. ORDINANCE AMENDING ORDINANCE 97 -054, AUTHORIZING A
CHARGE TO PROVIDE REVENUE FOR FLOOD CONTROL ZONE
DISTRICT SUB -ZONES (AB98 -316)
2. ORDINANCE SUPPLEMENTAL BUDGET #8 (AB98 -315)
3. ORDINANCE IN THE MATTER OF ACCEPTING ACADEMY ROAD
AS A PUBLIC ROAD (AB98 -314A) HEARING TO BE SCHEDULED
4. ORDINANCE IN THE MATTER OF ACCEPTING DELTA LINE
ROAD AS A PUBLIC ROAD (AB98 -314B) HEARING TO BE
SCHEDULED
5. ORDINANCE IN THE MATTER OF ACCEPTING HAM ROAD AS A
PUBLIC ROAD (AB98 -314C) HEARING TO BE SCHEDULED
6. ORDINANCE IN THE MATTER OF ACCEPTING MERTZ ROAD AS A
PUBLIC ROAD (AB98 -314D) HEARING TO BE SCHEDULED
7. ORDINANCE IN THE MATTER OF ACCEPTING TILBURY ROAD
AS A PUBLIC ROAD (AB98 -314E) HEARING TO BE SCHEDULED
8. ORDINANCE IN THE MATTER OF ACCEPTING VIEW HAVEN
LANE AS A PUBLIC ROAD (AB98 -314F) HEARING TO BE
SCHEDULED
9. EMERGENCY ORDINANCE ADOPTING DEVELOPMENT REGULATIONS
RELATING TO GROWTH MANAGEMENT AND LAND USE DEVELOPMENT
FOR THE PURPOSES OF REGULATORY CONSISTENCY WITH THE OFFICIAL
Regular Council Meeting, 8/11/98, Page 29
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WHATCOM COUNTY COMPREHENSIVE PLAN (AB97 -169E)
10. EMERGENCY ORDINANCE ADOPTING ZONING OVERLAY MAPS TO
IMPLEMENT THE SHORT TERM PLANNING AREAS DESIGNATED IN THE
OFFICIAL WHATCOM COUNTY COMPREHENSIVE PLAN (AB97 -170E)
11. ORDINANCE AMENDING TITLE 20, THE OFFICIAL WHATCOM COUNTY
ZONING ORDINANCE, TO ELIMINATE THE MINIMUM LOT SIZE
REQUIREMENTS FOR PUBLIC FACILITIES IN THE RURAL DISTRICT (AB98-
318)
REPORTS AND OTHER ITEMS FROM COUNCIL MEMBERS
Council members concurred to keep the next regularly scheduled meeting on September
15.
A n-mI TR N
The meeting was adjourned at 12:04 a.m.
Jill Nixon, Minutes Transcription
These minutes were approved by Council on 91998.
ATTEST: WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Dana Brown - Davis, Council Clerk Robert Imhof, Council Member
Regular Council Meeting, 8/11/98, Page 30