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HomeMy WebLinkAboutSpecial Council July 19 1993WHATCOM COUNTY COUNCIL Special Meeting July 19, 1993 The meeting was called to order at 7 p.m. in the Council Chambers, 1000 N. Forest Street, by Council Chair Marge Laidlaw. Also present: Absent: Ken Henderson None Dennis Vander Yacht Bob Imhof Dan Warner Barbara Brenner (arrived late) Larry Harris HEARING DECISION ON MAJOR DEVELOPMENT PERMIT APPLICATION AND SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT APPLICATION OF JOSEPH M. SCHECKTER FOR CHERRY POINT INDUSTRIAL PARK (AB93 -251) Laidlaw listed the five topics to be discussed during the hearing: (1) Dock configuration regarding safety, (2) whether the management unit is legal and in compliance with state and federal laws, (3) staff reservations about the project related to the Shorelines laws, (4) the interrelationship, if any, between this project and a neighboring project, and (5) the concerns of the tribal nations. There was discussion among Laidlaw, Harris, Warner and Henderson about the format of the meeting. It was determined that at 9:30 p.m. the Council would evaluate the situation, possibly closing the hearing to verbal testimony but leaving it open to written testimony for a number of days, or the Council may make a final decision this evening. Brenner arrived about 7:05 p.m. Civil Deputy Prosecutor Dan Gibson arrived shortly thereafter. Laidlaw opened the public hearing. Wayne Schwandt, no address given: Schwandt brought several visual aids regarding the project, and spoke of his historical association with the project dating back several years. He spoke about the difference between the Chicago Bridge and Iron /Peter Kiewet application some years back and the current project. He also addressed the regulatory climate for the area over the years. Council determined by consensus that it would address questions to each speaker as the hearing progressed. Harris asked Schwandt a procedural /legal question, and Gibson assisted in the clarification. Council Minutes, Special Meeting, 7119193, Page 1 Bob Davis, Lummi Tribe, Fisheries Department: Davis alluded to previous comments submitted to express concerns of the Tribe. He said the project will significantly adversely affect fish habitat, affecting harvest of that resource. He referred to treaty fishing rights, saying the pier would violate them, and explained the traditional use of these areas for fishing. He said the Tribe would fight if necessary. Harriet Beale, Water Resource Manager, Lummi Nation: Beale spoke regarding the Cherry Point Management Unit. She said federal agencies (National Marine Fisheries, U.S. Fish and Wildlife) wanted this area to be preserved as aquatic; she presented documentation from 1988 to back up this assertion. Therefore, she said, the Whatcom County plan not only violates federal plans, but also requires federal permitting that it has not received. The Cherry Point Management Plan amendment should be rescinded, she said. Additionally, she said the permit condition for an adequate water supply has not been met. Further, she indicated that the interruption of shoreline drift, which was a major issue in the CBI project, is still at issue. The Tribe recommended that the management plan should be rescinded, and the permits (shorelines and major development) should be denied. Brenner asked Gibson for a legal opinion on several points raised by Beale. . Gibson declined to answer at this time, citing the difficulty and complexity of the issue. David Schmalz, 2406 Spruce Street, North Cascades Audubon Society: Schmalz said his organization does not oppose industrial development on the uplands of Cherry Point, but it does oppose the construction of this pier due to the adverse, and potentially adverse, impacts to the ecology of the site. He spoke to the Washington State Shorelines Management Act which says permitted uses shall be conducted in a manner to minimize damage to the environment and interference of the public's use of the water. He said this may be the last potential deep water developable port available, but he said alternative sites for the types of cargo being brought into this port are available. He cited his views on the project, quoted the staff report, state law, etc. in order to support his assertions. He talked about the possible precedent that would be set by approval of the permit. Bob Wiesen, 3334 Douglas Road, Ferndale: Wiesen favored the proposed project. The kinds of jobs and economic development this project will bring to the County are needed. The zoning for this area has been for heavy industry since the mid 1970s, he said. He spoke to the claims that wildlife habitat will be reduced. Mitch Friedman, 1155 North State Street, Greater Ecosystem Alliance: Friedman spoke of the danger of big industry that would destroy environment and quality of life. Protecting the environment is the key to the County's economic health. Steve Irving, 6030 North Star Road, Ferndale: Irving said the fisheries aspect is Council Minutes, Special Meeting, 7119193, Page 2 important to the County's economy. A single pier that could do the work of two would be the preferred option. He wanted to address the natural heritage aspects of the area. Mitigation factors should be made clear and strong. He mentioned property owned by Scheckter near Lake Terrell. James Bliss, 6886 Vista Drive, Ferndale: Bliss said he knew of one dormant well on Scheckter's property that has adequate water capacity. Regarding herring and shellfish, he felt the numbers of crab in the area are sufficient. He was surprised, he said, to hear about the importance of the herring fishery. He recited the fill needed to develop existing industrial shoreline project. Within years of these projects' completion, the fishing improved briefly. He attributed decreased catches to over - fishing and other poor fishing practices. Bob Collins, 214 Highland Drive: Collins said he has done a study for vessel traffic risk analysis for the area, but had no particular stance on the issue. He said there is a theoretical limit to the amount of traffic for any area. That limit has not been addressed in the Cherry Point area yet, he said, but it should be done prior to the shoreline being studded with piers. He felt there would be a 32 percent increase of traffic in the area and that a proportionate risk of vessel accidents is probably likely. Brenner asked about the figures cited; Collins responded. Laidlaw asked Hearing Examiner Ed Good to speak to the issue of the number of vessels that could increase as a result of this matter. Good said the point Collins raised would best be kept separate from the protocol issue he addressed in his recommendation to the Council. Discussion ensued between Collins and Good. Dick Ford, Seattle Attorney, 5000 Columbia, Seafirst Center: Ford represented Scheckter. Contrary to the statement that 250,000 -ton vessels would be calling at this facility, the pier would be located with only 75 feet of draft, he said, which would not be adequate for vessels of that size. He pointed out that all vessels in the Puget Sound are under the control of the Coast Guard, and they are under traffic control guidelines similar to those used for aircraft. He urged the Council to leave risk analysis and related traffic issues to the experts, namely the Coast Guard and others. Studies that have been done show a low risk, relatively speaking, he said. Brenner asked questions -about the size of ships that will be using the pier. Warner commented on the information received in the Council's packet regarding the foreign trade zone status of the industrial site. Harris said a previous speaker said this project was identified as being available for bulk carrier trade, but that certain permit approvals were not in place. Ford responded and spoke to the alternative site issue. He said Seattle and Tacoma, for example, do not have available land for these types of projects. Laidlaw posed questions to Ford as well, some regarding the Roberts Bank pier and the mitigation plan. Larry Leverson, 2691 Douglas Road, Ferndale, Anvil Corporation, representing Scheckter: He addressed Laidlaw's question, saying the issues she raised had not been Council Minutes, Special Meeting, 7119193, Page 3 raised with the State Department of Fisheries. Warner clarified the process that would need to be followed before actual final approval of this project. Laidlaw asked if the proponents would be willing to look into this issue and into other creative mitigation; Leverson said they did not object to that. Harris asked about the relation between the Cherry Point Industrial Park and Pacific International Terminal piers. Ford responded, speaking to offers that have been made and discussions underway. Harris said if Pacific International Terminal agreed to reconsider Scheckter's offer, but that the dock should be modified, would Scheckter be open to that; Ford cautiously said yes, with conditions and under certain circumstances. A provision restricting the shipping of coal or petroleum products to this pier could be written into the permit, Ford said. Warner said he did not think the Pacific International Terminal project was relevant to the approval or disapproval of this permit. There was discussion by Laidlaw. Harris disagreed with Warner. Bob Tull, Bellingham /Ferndale Attorney, 119 Grand Avenue: Attorney for the Pacific International Terminal project. A packet of information was distributed by Tull. Laidlaw asked if this information was expected to be absorbed in one evening. The Council pointed out that Ford's information was distributed by July 15. Tull said no, he did not expect immediate absorption of the material. Tull produced diagrams on poster board of the Pacific International Terminal project. Brenner said she objected to discussing the Pacific International Terminal's proposal that evening. Brenner and Warner discussed the relevance. Warner said he understood the Pacific International Terminal proponents were concerned because the approval of this project may impact the potential approval of Pacific International Terminal. Harris said he was interested in the link between the two projects, and he wanted to establish whether there was any active negotiation ongoing between the two companies. Tull said they are two entirely separate projects. He asked that the Council not assume he was going to improperly address the Pacific International Terminal project. He said he was present to address issues in the public hearing notice. He agreed to primarily address the current project, not the pending one belonging to his clients. Tull said Pacific International Terminal firmly believes dock access could be made available to all of Scheckter's clients on an economic basis. Regarding the Cherry Point Management Unit, Tull spoke briefly. He said the packet he distributed contained a two -page summary of points, and the rest of the packet was information already on file. Joseph Scheckter, one of the developers of the Cherry Point Industrial Park: Scheckter made himself available to answer questions and make clarification. He said no deal is under discussion between Cherry Point Industrial Park and Pacific International Terminal. He said he would be happy to make all correspondence on this issue available to the Council, if requested. It doesn't make sense to merge the two projects, he said. One problem he said that he had was Pacific International Terminal's exclusive Council Minutes, Special Meeting, 7119193, Page 4 association with union workers. While he has nothing against unions, he said he felt it was unnecessary to create a monopoly on workers. Tull objected, wondering why Scheckter could speak to Pacific International Terminal's proposal when Tull could not speak to Scheckter's proposal. Comments were made by Laidlaw and Warner that Mr. Scheckter was responding to specific questions regarding the Cherry Point Industrial Park project and that Pacific International Terminal was only incidental. Matt Aamot, Buildings and Codes Division: He clarified the significance of shorelines and gave the background of some of the local legislation and the Cherry Point Management Unit. Warner said the staff's concern was that there ought not to be a multiplicity of piers. Aamot agreed there is a limit to the number of piers that should be allowed on a shoreline of statewide significance. Henderson commented. There was extensive discussion about the appropriateness of the location of the pier and other issues among . Aamot, Henderson, Good, Warner, Brenner, Laidlaw, and Buildings and Codes Administrator Nate Brown. Janet Adams, 1133 Humbolt Street: Adams asked some clarifying questions about the process and documents on file. She spoke on behalf of the League of Women Voters about the League's views on shoreline development and the Cherry Point unit itself. Adams raised the issue of Growth Management saying she believes the proposed development is urban growth outside the Urban Growth Boundary. Laidlaw, Warner, and Brenner commented. It was also indicated that Growth Management Act's urban growth boundary sections do not conflict with this project. Phyllis Graham, Birch Bay: Graham said she recalled that the State formerly said it would approve only one pier at Cherry Point. She reviewed materials she has at her home regarding Cherry Point dating to the 1970's. She distributed a letter (on file). She urged that only one more pier be added to the area. John Munson, 2195 Lummi Shore Drive: Munson spoke on behalf of the International Longshoreman's Union. He said he wanted to speak to Scheckter's assertions that there are advantages or disadvantages of using union labor. Warner and Laidlaw urged him to speak to Scheckter directly, saying that the Council was not involved in the questions Munson was asking. He spoke about the type of development that would be allowed in the County. Dale Griggs, Director of Fisheries for the Nooksack Tribe: Griggs spoke about the fishing rights in the area and the income impacts that would result if a dock were built. He said he felt there would be a net loss of jobs. Imhof asked how Griggs figured the dock would result in a net loss of jobs. Imhof said he felt docks create an ecosystem all their own. Griggs responded. Council Minutes, Special Meeting, 7119193, Page 5 Martin Keeley, representing the Washington Environmental Council: Keeley expressed concerns about containment /cleanup plans that are needed but that are lacking here. Mitigation also was discussed regarding the shoreline and the industrial park. He asked that the memo containing these items include a prohibition on shipping coal, oil, or hazardous material. Herman Almojera, Ferndale, Nooksack Tribe: Almojera spoke to the loss of work for fishermen who lose their gear when a ship runs through the lines and nets and that their fishing time is cut short when ships arrive and leave. He said he wanted to make sure that liability is a part of the process Sherilyn Wells, 1020 Geneva: Wells said this is an example of previous Councils' failure to address Cherry Point's value. The Council is being asked to decide the merits of a project without the underlying regulations in place, she said. Treaties and other older laws that pre -date laws that have come into being since that time should be given more merit. She urged the Council to strongly consider that this is a Public Trust Doctrine issue. Resolution of unresolved issues should precede a decision .on this issue, she said. Laidlaw closed the hearing at about 9:20 p.m. Laidlaw asked Gibson to elaborate on the Federal approval question. Gibson said there is a two- tiered process of approval, with a short -cut for approval. The state sought the "quick and dirty approval," but the Federal Government denied it, asking that longer review take place, Gibson said. Federal approval was not pursued because it was felt that approval should be sought on a case -by -case basis. Brenner, Warner, Laidlaw and Imhof commented. Henderson asked Buildings and Code staff about committing to approval of other sites that may later receive County review. Brown responded. Comments were made by Warner, Brenner, Henderson and Laidlaw. There was discussion about limiting development to only one dock in the area. Laidlaw asked Tom Anderson, Manager of Public Utility District No. 1, to comment. Anderson said the Public Utility District feels there is adequate water supply for Cherry Point, and it would be Nooksack River water, he said. Brenner called upon Brown to comment on the regulatory responsibility of his department. Brown said the department knew when the staff report was written that the issues were difficult. The prioritization of the projects was a side evaluation, he said. IMHOF MOVED TO APPROVE THE MAJOR DEVELOPMENT PERMIT AND SHORELINES SUBSTANTIAL DEVELOPMENT PERMIT APPLICATION FOR CHERRY POINT INDUSTRIAL PARK AS PER THE HEARING EXAMINER'S DECISION AND RECOMMENDATION, AND WITH THE ENVIRONMENTAL IMPACT STATEMENT CONDITIONS INCLUDED. Council Minutes, Special Meeting, 7119193, Page 6 Laidlaw clarified that the motion included adoption of the mitigating measures in the draft and final Environmental Impact Statement. BRENNER MOVED TO AMEND THE MOTION TO ADD THAT SCHECKTER WILL MITIGATE WETLAND DISTURBANCE ON THE SITE BY ENHANCEMENT OF THE LAKE TERRELL PROPERTY THAT HE OWNS. Warner spoke to the amendment. Brenner responded. Ford was recognized from the audience, and he commented. Gibson said the amendments made must be supported by findings of fact. Imhof, Warner and Brenner commented. Brenner withdrew her motion. Henderson suggested the Council prepare written proposals with specific amendments and then discuss them. He recommended having this vote take place at the July 27 meeting. Harris agreed, speaking against "slap- dash" amendments. Brown also requested being able to present a distillation of the issues contained in the Environmental Impact Statement. Council accepted his offer. Imhof restated and amended his motion as follows: IMHOF MOVED TO APPROVE THE MAJOR DEVELOPMENT PERMIT AND SHORELINES SUBSTANTIAL DEVELOPMENT PERMIT APPLICATION FOR CHERRY POINT INDUSTRIAL PARK AS PER THE HEARING EXAMINER'S DECISION AND RECOMMENDATION, AND WITH THE EIS CONDITIONS INCLUDED, PROVIDED THAT TO INCLUDE THE MATTER WOULD BE HELD OVER TO AUGUST 3 TO ALLOW FOR WRITTEN AMENDMENTS FOR CONSIDERATION OF THIS MATTER AT THAT TIME. It was clarified that motions should be submitted by the packet deadline for the August 3 meeting. Henderson asked that only amendments proposed by the packet deadline, in writing, should be considered. Imhof withdrew the motion. There was discussion. IMHOF MOVED TO HAVE WRITTEN COMMENTS SUBMITTED TO THE CLERK OR TO THE CHAIR BY JULY 27 FOR INCLUSION IN THE AUGUST 3 PACKET. Brown restated his offer, above, adding that the report would be ready by July 27. There was no vote on Imhof's motion. Council Minutes, Special Meeting, 7119193, Page 7 Laidlaw adjourned the meeting at about 10 p.m. ATTEST: WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Ramona Reeves, Clerk of the Council Marge 'dlaw, Council Chair Council Minutes, Special Meeting, 7119193, Page 8