HomeMy WebLinkAboutPublic Works June 16 19981
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WHATCOM COUNTY COUNCIL
Public Works And Capital Projects Committee
June 16, 1998
The meeting was called to order at 1:30 p.m. by Committee Chair Barbara Brenner in the
Council Committee Room, 311 Grand Avenue.
A kn PrPCPnt-
Tom Brown
Marlene Dawson
Absent:
None
COMMITTEE DISCUSSION AND RECOMMENDATIONS TO COUNCIL
1. ORDINANCE AMENDING WHATCOM COUNTY CODE 8.28, LITTER AND
ILLEGAL DUMPING ENFORCEMENT (AB98 -211)
Ravyn Whitewolf, Public Works Department Solid Waste Division Engineer, submitted a
substitute Exhibit A and stated that one concern of the Council was the language "annoy" in the
definition of "Nuisance." Staff preference is to leave the language as is because it is the state
definition.
Dan Gibson, Senior Civil Deputy Prosecutor, stated that the definition of "nuisance" used
in this ordinance is the civil definition of the word, not the criminal definition. The definition
contains subjective language. The concept of the word "nuisance" is itself subjective. The
definition only comes into play in the ordinance where it is used when one is burying solid waste
on his or her own property, both onto and under the surface. The negative effect may be a matter
of sight or smell, or attracts animals or insects. The determination of nuisance is subjective.
Because it is used in that context, enforcement is the Health Department's responsibility. They
would be called to the scene to make a determination of nuisance. If the matter were challenged,
it would be in front of a civil court judge and judgement would be based on the sensitivities of a
reasonable person. There are two levels of screening, which are the enforcement officer and the
court. These two levels would buffer against people easily annoyed.
Brenner stated that she was not comfortable putting this determination on the staff.
Council and staff should not do something just because the State does it. The word "annoy" is
vulnerable to too much subjective interpretation.
Karen Frakes, Senior Civil Deputy Prosecutor, stated that in order for an action to be a
nuisance, activity must first be unlawful. The activity has to be in violation of an ordinance or
State law.
Brenner stated that the ordinance allows an owner to bury waste on property unless it is a
nuisance.
Public Works & Capital Projects Committee, 6116198, Page 1
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Gibson stated that ultimately it is up to the Council to decide what the definition of
"nuisance" will be. He suggested that if someone is annoyed, they would call the County to
complain whether or not the word "annoy" is in the ordinance.
Brenner stated that by making the definition subjective, people would create more
problems between property owners and the County would be in the middle of the conflict.
Brown stated that the language "comfort" is also subjective. He does not support the
word "annoy."
Gibson commented that there is a lot of language in the state definition of nuisance that
does not apply to this ordinance.
Frakes stated that the entire concept of the word nuisance is superfluous because it would
have to be a violation of law for a nuisance to apply. In certain areas, there are restrictions on
dumping. Countywide there are no laws to prohibit dumping on one's own property.
Brenner suggested defining the word so it is useful to the ordinance and abandoning the
State definition.
Frakes suggested striking the language "unlawfully." This would be helpful to
enforcement.
Dawson moved to delete the words "unlawfully" and "annoys" from section 8.28.020 in
the definition of the word "Nuisance."
Motion carried unanimously.
Gibson noted that the State law is still in effect. The County also operates under the State
definition.
Brenner questioned the definition of "unsecured loads" and stated the verbiage should be
either in the singular case or in the plural case. This is a scrivener's error.
Brenner questioned whether the definition of handbills includes political handbills?
Gibson responded that the definition covers political materials. His concern is with the word
"post ", which was brought up by Council Member Kathy Sutter at a previous meeting. A
prohibition on posting papers on public property would not allow political office election signs
or bulletin boards in public buildings. Posting is not litter because it is not being disposed of.
Posting unwanted handbills on public property would fall under trespassing laws.
Brenner moved to withdraw the word "post" from section 8.28.090
Motion carried 2 -0 with Brown abstaining.
Public Works & Capital Projects Committee, 6116198, Page 2
I Whitewolf gave clarification of illegal dumping of yard waste onto one's own property,
2 section 8.28.080. The language was clarified in the last sentence of the paragraph. That new
3 sentence was read into the record. The change specifies the contents of yard waste. The
4 previous section stated solid waste. Brenner suggested adding the word "compost."
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6 Brown questioned whether there was a limit to burying solid waste on one's own
7 property. Delahunt stated that if the solid waste is construction debris, there is a limit.
8 Otherwise, there is no limit. Whitewolf stated that staff recommendation would be to exclude
9 anything but yard waste, compost, and organic materials since those types of waste are the safest.
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11 Brenner stated that there are organic materials that are hazardous, such as petroleum.
12 Whitewolf then suggested the addition of the word "compost" only. She listed food waste, yard
13 clippings, leaves, or prunings as a possible list of exemptions. Delahunt stated that food waste
14 would have to be qualified as vegetative food waste only. Brenner stated that she has begun
15 using soy ink newspapers as mulch and questioned whether that type of activity would be
16 allowed because it is not included in the list.
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18 Brown suggested removing the words "solid waste" and replace with "dangerous waste."
19 Gibson clarified that the amendment suggestion creates the ability to bury other people's waste
20 in addition to one's own waste. Whitewolf stated that the Committee should be focusing on
21 amending the last sentence.
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23 Delahunt stated the recommendation from the Health Department would be to prohibit
24 people from being allowed to bury their own garbage on their own property. By the term
25 garbage, the intent is typical household garbage. In some cases, the Health Department has
26 prohibited people from burying typical garbage because it has created a nuisance. That is
27 difficult to go through the nuisance rule. It would be easier to prohibit burying typical household
28 garbage in one's own backyard.
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30 Brenner suggested that non - organic materials and any materials not acceptable for land
31 application should be prohibited.
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33 Delahunt suggested adding a statement that says the section would not prohibit home
34 composting and mulching.
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36 Gibson suggested adding the wording "or compostables" after "prunings" in the last line,
37 so that the line would read, "...depositing yard clippings, leaves, prunings, or compostables,
38 resulting from his own activities on or under the surface of the ground."
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40 Brenner moved approval of the added sentence, with Gibson's suggestion to add the
41 language "or compostables." The sentence would say, "This section shall not prohibit a person
42 from dumping or depositing yard clippings, leaves, prunings, or compostables resulting from his
43 own activities onto or under the surface of ground, owned or leased by him, when such action
44 does not violate statutes or ordinances or create a nuisance."
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Public Works & Capital Projects Committee, 6116198, Page 3
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Motion carried unanimously.
Whitewolf discussed section 8.28.040 and stated this section was intended so people
wouldn't be financially responsible to maintain public rights -of -way.
Brenner moved to strike the last sentence of the section 8.28.040. It is public property.
Requiring people to maintain public property would be an undue burden.
Motion carried unanimously.
Brown questioned section 8.28.055 and stated that "injure a vehicle" does not make
sense. He suggested "damage" instead of "injure ". Nelson also suggested "endanger."
Brenner stated that the language should say "could" instead of "would."
Gibson suggested "...damage a vehicle or otherwise endanger travel."
Brenner suggested "...an obstruction that would endanger travel."
Whitewolf noted that if rocks or other small objects hit a vehicle, it would not endanger
travel, but it would damage the vehicle.
(Clerk's Note: End of side A)
Brenner suggested including language that would cover property other than vehicles that
could be damaged, such as fences. Whitewolf suggested changing the word "vehicle" to the
word "property."
Brenner suggested that if anything falls from an vehicle, it should be picked up
immediately, whether or not it damages property.
Delahunt stated that the intent is that if something falls off a loaded vehicle that is
unsecured, the person would immediately pick it up and take care of it. It does not intend to
cover litter. Whitewolf stated that litter is already covered in the ordinance.
Brenner moved to change language to read "... escaped that could constitute an
obstruction, damage property, or otherwise endanger travel upon..."
Motion carried unanimously.
Brenner questioned section 8.28.055(c) regarding the definition of the word "freeboard."
Gibson clarified that that refers to the space below the top of the bed. Brenner stated she would
like to remove the last sentence of that section. Brown questioned whether the practice of
loading a vehicle so that the load is piled in the middle, then slopes down the sides to leave the
required amount of freeboard would be legal.
Public Works & Capital Projects Committee, 6116198, Page 4
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Whitewolf stated that the language is clear as it is. Frakes suggested changing "within" to
"throughout ".
Brenner moved Frakes suggested change to substitute "within" to "throughout"
Motion carried unanimously.
Whitewolf discussed the change in section 8.28.100(D) regarding the last sentence. The
specific interest rate was added.
Brenner moved to add the words in second to last line to add "due in principle and
interest of one percent per month, plus cost of court..."
Motion carried unanimously.
Brenner questioned section 8.28.110 and stated that she wanted two pieces of identifying
litter instead of three to be required for enforcement procedures.
Brenner moved to change from three pieces to two pieces. This creates sufficient
evidence to issue a citation. Delahunt clarified that a person would get a citation.
Nelson questioned who would be issuing citations. Brenner responded that the Health
Department would issue citations. Gibson stated that if enforcement regulations only require two
pieces of litter that identify the owner, instead of three pieces of identifying litter, for a citation to
be issued, it would make it easier for a person to prove the garbage does not belong to him.
Motion carried unanimously.
Whitewolf discussed sections 8.28. 100 (B) and (D) relating to clean -up responsibilities
and whether the word "owner" should be changed to "offender." The staff opinion is that the
word should remain "owner." Nelson stated the ordinance orders the owner to clean up the
property or face a fine if the dumped garbage is not cleaned up by the offender who dumped the
garbage onto the property. This punishes those who are victimized.
Delahunt stated that people do call saying that someone has dumped stuff on the
property. Health will tell them they will try and establish whom the offender may be and get
them to pay for clean up, but the property owner is responsible for clean up. Nelson stated that if
the court orders a clean -up by the offender, and the offender does not pay, the court may then
grant the County permission to enter the property to clean up and bill the owner if he does not
take responsibility.
Gibson described a scenario of the landlord /tenant relationship and a scenario where the
owner would be responsible.
Public Works & Capital Projects Committee, 6116198, Page 5
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Nelson stated that if the offender is found, but does not pay for the clean up of the
property, the owner should not have to pay court fees and fines.
Frakes stated her concern about whether the court has jurisdiction over the owner to order
payment and clean up.
Brenner asked Gibson to discuss concerns with Nelson to create language to be presented
at the Council meeting.
Whitewolf stated that the definitions have been alphabetized.
Brenner moved to accept definitions in alphabetical order.
Motion carried unanimously.
Brenner suggested tabling the issue to the next Committee meeting.
Brown expressed a concern in section 8.28.130 regarding police powers. Parks
Department officials should not be serving warrants outside of the parks grounds. Gibson
clarified that the term "warrant" meant a search warrant. Brown responded that Parks
Department employees should not be following up on search warrants.
Whitewolf commented that it clearly states that enforcement is only to enforce the
provisions of the chapter. Stricter enforcement of this chapter involves giving the enforcement
officers the power to enforce.
Delahunst stated if the enforcement section does not exist, the Health Department cannot
issue citations.
Whitewolf suggested "Parks Department.... may serve and execute all warrants and
citations in their designated jurisdictions..."
Brenner moved the approval of Whitewolf s suggested language change.
Motion carried 2 -1 with Brown opposed.
2. RESOLUTION AMENDING RESOLUTION 92 -015, ESTABLISHING A
FLOOD CONTROL ZONE DISTRICT ADVISORY COMMITTEE (AB98 -234)
Dawson moved to recommend approval.
Motion carried unanimously.
Public Works & Capital Projects Committee, 6116198, Page 6
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3. CONFIRMATION OF AMENDMENTS TO THE BYLAWS FOR THE
WHATCOM COUNTY FLOOD CONTROL ZONE DISTRICT ADVISORY
COMMITTEE (AB98 -234A)
Brenner moved to recommend approval.
Motion carried unanimously.
Gibson stated he was satisfied with the amendments to the bylaws.
OTHER BUSINESS
F.11 011110 49
The meeting was adjourned at 2:57 p.m.
Jill Nixon, Recording Secretary
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Barbara Brenner, Council Member
Public Works & Capital Projects Committee, 6116198, Page 7