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HomeMy WebLinkAboutPlanning and Development March 12 1991WHATCOM COUNTY COUNCIL. PL.ANIVING AND DEVELOPMENT COMMITTEE March 12, 1991 The meeting was called to order in the Council Chambers, 2nd floor, 1000 N. Forest St., at 2:30 p.m. by Chairperson Marge Laidlaw. Also present: Emily Jackson Don Hansey Absent: 1. ORDINANCE AMENDING THE ZONING ORDINANCE AND THE INTERIM ZONING ORDINANCE REGARDING SURFACE MINING ACM11TIES IN THE RURAL, AGRICULTURE, FOREST, AND GENERAL PROTECTION ZONING DESIGNATIONS (AB90 -443) 75 -100 Bob Carmichael addressed the Committee on the legal issues involved in the surface mining issue. There seem to be some problems regulating surface mining in view of the state laws and the growth management act. Carmichael's opinion is that this Act does give the County some authorization to regulate surface mining, but the County has to formally go through certain processes which it has not done. The problem with land use matters left to the County is that the State has pre - empted the regulatory field in surface mining. When the 1971 Act was passed, there were two bills; both said that the County should regulate surface mining, but that section was deleted in committee; the bills passed without that section. The courts have said that the legislature's intent was to eliminate the County from regulating surface mining because they eliminated that section. In this ordinance, some areas seem to be invalid, while some are valid. For instance, the County can regulate rock crushing in regards to water quality. But as to areas over which the Dept. of Natural Resources has jurisdiction, the County doesn't have it. Small sites less than 3 1/2 acres don't come under DNR, but all larger ones do. Usually, if the County standards are higher, the County standards apply, but that isn't true in this case because of the legislative analysis of intent. There is a bill before the State that would give back to the Counties the right to regulate surface mining, but that hasn't been passed yet, and probably won't be this year. As things stand now, this particular ordinance would not stand scrutiny; it is largely illegal. Parts of it, however, are salvageable. The County can go under Growth Management and regulate some things, but that isn't what this ordinance comes under. Efforts would be better spent to refer this ordinance back to Planning to draft ordinances that would be valid. Jackson asked why the review was coming this late. Carmichael responded that he was not given a specific request to analyze the ordinance until late in December. He had not been involved in the ordinance before, so hadn't given it any thought. He came back in February with the opinion that the ordinance would be pre - empted. Jackson wondered whether this wouldn't come under the County's responsibility for the health of its citizens and the right that the County had in this area. Carmichael responded that this was part of the Department of Natural Resources, and therefore the State has the responsibility that the health concerns have been met for the citizens in these given areas. Jackson asked if we passed it anyway, would someone sue us? And perhaps this was the only way to get it back in front of the state legislature for further consideration. She doesn't see the state coming back and giving us the resources to follow the state regulations. Carmichael declined to give advice on this issue; he was not prepared at this time to do so. He would do everything he could to work with the County and the Council to find something workable and valid. But he couldn't ask the Council to pass an ordinance that he perceives as invalid. Vanderpol further clarified that it was only when the Clark County issue crossed his desk in December that he contacted Carmichael or had any inkling something might be illegal. Carmichael pointed out that this ordinance is not part of The Growth Management Act and did not come from that; it is quite independent and came from elsewhere. Considerable discussion followed on the ways in which this issue could be regulated through the County. Carmichael pointed out that if it was the Council's intent to send this ordinance back, then it would be in the Council's interest to cancel the public hearing tonight because whatever comes out would essentially be useless. Some discussion followed about what to do with the public hearing. In summary, these regulations are largely invalid, the County is preempted, and the Council would be best advised to look in a new direction. Carmichael would be available to explore these options with the council. LAIDLAW MOVED TO CANCEL THE PUBLIC HEARING ON SURFACE MINING FOR MARCH 12 AND TO REMAND THE ORDINANCE TO PLANNING AND LEGAL STAFF FOR REVIEW. THE REVIEW WELL INCLUDE DRAFTING REGULATIONS APPLICABLE TO ON -SITE PROCESSING OPERATIONS INCLUD- ING PITS UNDER THREE ACRES, LOOKING FOR LEGITIMATE WAYS TO ENACT AUTHORITY, AND IMPLEMENTING STEPS FOR COUNTY AUTHORITY UNDER THE GROWTH MANAGEMENT ACT. The motion carried unanimously. Jay Hoff, Axton Road, said that she lives across the street from a surface mining operation. She has been trying to deal with this through the State; they have consistently remanded her to the local levels for regulations and enforcement. Carmichael went over the DNR regulations again. Planning & Development Minutes, 3/12/91, Page 2 The meeting was adjourned. ATTESTED: PLANNING & DEVELOPMENT COM[M[ITTEE: Ramona Reeves, County Clerk Marge Laidla , Chairperson nc Tape of this meeting is of extremely poor quality, therefore the minutes are more detailed than usual. Planning & Development Minutes, 3/12/91, Page 3