HomeMy WebLinkAboutSpecial Council December 15 19981
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WHATCOM COUNTY COUNCIL
Special Council Meeting
December 15, 1998
The meeting was called to order at 12:30 p.m. by Council Chair Robert Imhof in the
Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Also Present: Absent:
Marlene Dawson None
Barbara Brenner
Tom Brown
Connie Hoag
Kathy Sutter
Ward Nelson
1. DISCUSSION TO RECONSIDER THE REPEAL OF THE IMMUNITY FROM SUIT
PROVISION IN THE COUNTY'S RIGHT TO FARM ORDINANCE (AB97 -169F)
Imhof stated that the reason for the meeting is to review action taken at the County
Council meeting on December 8, 1998. The correct motion would be to rescind the deletion of
section 14.02.050 from the Whatcom County Development Regulations.
Dawson so moved.
Hoag stated that she was disheartened that they were having this meeting. She did not
feel it was in the best interest of agriculture to be having this in public. It is more detrimental
than beneficial. Karen Frakes, Senior Civil Deputy Prosecutor, had told her that State law
covered the County in this area. The farmers would not be in a liability problem while this was
reviewed. Dan Gibson, Senior Civil Deputy Prosecutor, had told her that State law is more
restrictive than the local ordinance. The meeting is totally unnecessary. They did not repeal the
ordinance. They only removed the section regarding the agreement to refrain from legal action
and ask that it be reviewed to ensure that it met all the requirements of the law. This was done in
response to actions in Iowa. Iowa's entire ordinance was thrown out because of a similar clause.
They tried to do the right thing. There is not a severability clause. It should have legal review.
A case cited by Whatcom County lawyers did not address constitutionality, which was the issue
in the Iowa case. She did not agree with the assumption that constitutionality could be assumed.
Courts do not go beyond what is brought before them. The County still incurs court costs when
their lawyers have to argue cases. That is what they were trying to avoid.
Brenner stated that she didn't understand what difference it makes how it is reviewed.
She was concerned with the constitutionality of it when it was passed. A better direction would
be to beef up the definition of a frivolous lawsuit and penalize someone for frivolous lawsuits,
not take away someone's constitutional right to be able to see if they feel they are being
Special Council Meeting, 12/15/98, Page 1
I damaged.
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3 Dan Gibson, Senior Civil Deputy Prosecutor, stated that there is a process to be followed
4 when making changes to ordinances. One of the obvious requirements is that public notice be
5 given. There was no change like this proposed in the ordinance, which was before the Council.
6 Furthermore, policy #8D -2 of the Comprehensive Plan specifically calls for the County to affirm
7 and build on the Right -to -Farm ordinance. From a process standpoint, it was his opinion that the
8 actions that were taken that night, with no prior notice to the public, were seriously flawed. That
9 doesn't prevent the Planning Commission from dealing with this through its ordinary means of
10 review. It is entirely appropriate for this to go to the Planning Commission for them to review.
11 It is backwards to repeal it and then ask if the right thing has been done.
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13 Brenner stated that they did not repeal the ordinance. She understood that any phase of
14 the development regulations were open for change, if they wanted to do changes, including the
15 Right -to -Farm section.
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17 Gibson stated that there is always a fine line in terms of changes that are allowed to be
18 made, based on the notice given. In this case, it is not even a close call.
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20 Hoag stated that she disagreed. The development regulations included the Right -to -Farm
21 section. They were looking at amending that. It was an item that had been up for public hearing.
22 This portion of it had been up for public hearing. It had been through committee several times.
23 There were many other changes made to the development regulations that night that were
24 substantial in nature. All the Council asked for was for the section to be removed and to be
25 reviewed. At the point at which it came back, it would have gone through another public process
26 to consider any changes being proposed.
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28 Dawson stated that they should not be in a position of second - guessing their attorneys.
29 They did have the cart before horse in the situation. Something can't be pulled off and not
30 repealed.
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32 Nelson questioned the difference between the Iowa State statutes and the Washington
33 State laws. Gibson responded that the significant difference is that in Iowa, people have a right
34 to create an agricultural area, which is immune from suit, without any input from the neighbors.
35 The neighbors are subject to it, whether they want it or not. In Whatcom County if one is in or
36 near an agricultural area and wishes to develop, as covered by the definition of discretionary
37 development permit, at that point there is a covenant not to suit. That is a significant difference
38 between Iowa and Washington State laws.
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40 Sutter stated that removing the section removes the enforcement of the Right -to -Farm. It
41 could result in a taking of the farmer's activity. Regarding the public hearing, there was not
42 public hearing on this provision and it is significant. The amendment was not included in the
43 draft of the ordinance that was made available to the public for comment. If there are significant
44 concerns about the legality, then it should be docketed for the Planning Commission. To date,
Special Council Meeting, 12/15/98, Page 2
I they haven't been hauled into court. From the memorandum from the legal staff, it appears that
2 there are significant differences between this and Iowa's law. It will not result in any liability
3 for the County.
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5 Imhof stated that he had a problem with the process. Council Member Hoag brought the
6 change forward at the last minute. He didn't support taking it out.
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8 Brown stated that complaints have arisen recently from property owners who live next to
9 people who have changed their farming practices. When they call to complain, they've been told
10 that the farmers are protected by the Right -to -Farm, even though they are not in an agricultural
11 area.
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13 Gibson responded that there is a State Right -to -Farm provision and a County Right -to-
14 Farm provision. They are not identical. The State provision is not stricter, but different. The
15 County provision is less vulnerable to suit than the State provision. The State provision doesn't
16 talk about the development permit requirement. One doesn't have to get a development permit
17 before they become subject to the State provision. The State provision discusses whether or not
18 the activity was prior to or after the adjacent neighbor activity. The coverage that would affect
19 those people, if they were there before the farming activity changed, and were not seeking a
20 development permit, they would not be prohibited from suit by the County ordinance. They
21 might be prohibited from treating it as a nuisance as a State ordinance, depending upon the
22 definition of farm or agricultural practice.
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24 Hoag stated that the review of the Iowa case by Frakes and Gibson did not occur until
25 after the meeting on December 8, 1998. This is one of the things they were asking for when it
26 was removed. It still needs more review. In comparing what had happened in Iowa, the basic
27 issue of a neighbor's taking is still there. She was bothered that a special meeting was called to
28 address this, instead of waiting until January. They did this to try and protect the farmers and the
29 County. By calling a special meeting and making it public, then a neighbor of a farmer is getting
30 a public message that this might be unconstitutional and the County does not have a Right -to-
31 Farm provision.
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33 Brenner stated that she sponsored the Right -to -Farm ordinance when it was first done.
34 The ordinance has plenty of teeth. It is an approach that the County takes. It is not the County's
35 business whether or not neighbors sue each other. The County will not enforce against a farmer,
36 because farming is an important issue. The County should not be in the business of preventing
37 lawsuits that might be reasonable or rational.
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39 Sutter questioned whether the provision in the ordinance would not prevent a neighbor
40 from suing the farmer, if they were there first. Gibson responded that if they were there first, and
41 they had not come in seeking a discretionary development permit.
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43 Sutter asked for a definition of a discretionary development permit. Gibson stated that
44 the definition is in Whatcom County Code section 14.02.020, "...permit applications requiring
Special Council Meeting, 12/15/98, Page 3
I discretionary review, including but not limited to subdivision permits, binding site plan approval,
2 planned unit developments, special use permits, variances, shoreline substantial development
3 permits, and conditional use permits." What they are saying is that if a landowner is there and
4 not seeking any addition, they are on an even par. If one is seeking development within an
5 agricultural area, then agriculture takes precedence.
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7 Sutter stated that the agreement to not bring suit would be a covenant or a deed
8 restriction, which could be removed by the Hearing Examiner. Gibson stated that was correct,
9 there is a process for removing that restriction if they can determine that it will not negatively
10 impact the farming activity.
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12 Nelson stated that there are two issues. One is the public process and whether it is better
13 served to make the change currently and then go through a public process, or is it better to leave
14 it in and go through a public process to determine whether it is a route they are firmly footed
15 with legal standing. It is preferential that, when laws are in place in which people have become
16 accustomed, the process is worked through to make a determination whether or not it is legal,
17 protected under the constitution, or should be changed.
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19 Brown questioned why the County is in a hurry to replace the section, if the State law is
20 more restrictive than the County law. Gibson clarified that the State law is not more restrictive,
21 it is different. Under State law, a neighbor could be prohibited from doing something that he
22 wouldn't be prohibited from doing under County law, and vice versa. The State law is outlined
23 in RCW 7.48.
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25 Brenner stated that the motion did not repeal the Right -to -Farm provision. This merely
26 removes the portion regarding one person suing another. It doesn't remove the Right -to -Farm as
27 far as the County laws. The County will allow practices in farming areas, which they would not
28 allow elsewhere. The County does not enforce against that. Also, she believed the provision has
29 to do with someone who is building a house on his or her property.
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Gibson stated that it is discretionary development permits. The question is how Planning
and Development Services reviews an application for a building permit. That is not a question
for which he has the answer.
Nelson questioned whether clustering in an agricultural overlay would be discretionary.
Gibson stated that it would. That would be a subdivision.
Nelson questioned whether a person coming in for the agricultural overlay would have a
right to sue the farmer, if the provision were to remain removed. Gibson stated that was correct.
42 Karen Frakes, Senior Civil Deputy Prosecutor, stated that the County has always
43 considered building permits as ministerial in nature. If it fell under the definition of
44 discretionary permit, then it would be the first one listed.
Special Council Meeting, 12/15/98, Page 4
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Brenner stated that the County has made it difficult for someone to get permits if they
don't cluster. Because of that, it still ends up being permits for single family residences, whereas
if they had left them alone, they would be on separate lots. In effect, it does affect house
building.
Hoag stated that all portions of the provisions, except section 14.02.050 are still left
intact.
Imhof restated the motion to rescind the action that deleted Whatcom County Code
14.02.050 at the December 8, 1998 regular County Council meeting.
Brown questioned whether this was scheduled for the Planning Commission. Sutter
responded that it could be put on their docket for review.
Sylvia Goodwin, Planning and Development Services Planning Manager, stated that the
next opportunity for that review is in a year and a half, unless it is initiated as an emergency.
Motion carried 5 -2 with Hoag and Brenner opposed.
ADJOURN
The meeting adjourned at approximately 1:00 p.m.
These minutes were approved by Council on Februa 2 , 1999.
Jill Nixon, Recording Secretary
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Robert Imhof, Council Chair
Special Council Meeting, 12/15/98, Page 5