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HomeMy WebLinkAbout052710CITY OF PORT TOWNSEND PLANNING COMMISSION MEETING City Hall Council Chambers Thursday, May 27, 2010 6:30 PM Materials: EXH 1. Planning Commission Meeting Agenda, May 27, 2010 EXH 2. J. Surber, Memorandum to Planning Commission: Procedural Issues with Critical Areas Ordinance, May 25, 2010, with attachments CALL TO ORDER Chair Ray called the meeting to order at 6:40 PM. Sazah Bowman was welcomed to the Planning Commission, and all Commissioners briefly shared bits of personal and professional background information. II. ROLL CALL A quorum of Planning Commission members was present: Sarah Bowman, Steve Emery, Gerald Fry, Gee Heckscher (arrived 6:54 PM), Julian Ray (Chair). Excused: Monica Mick-Hager III. ACCEPTANCE OF AGENDA After brief consideration, Mr. Ray requested that the approval of three sets of minutes be deferred. Mr. Emery moved for acceptance of the agenda, as amended; Mr. Fry seconded. The agenda was approved, as amended, all in favor. IV. APPROVAL OF MINUTES Mr. Emery suggested that approval of the minutes for February 25 and March 10 be postponed due to the absence of Mr. Heckscher; there was no objection. V. GENERAL PUBLIC COMMENT: None VI. OLD BUSINESS -None Planning Commission Page 1 of B VII. NEW BUSINESS 1. Discussion: Issues associated with Critical Areas Procedures -Port Townsend Municipal Code Chapter 19.05 (Judy Surber, Planning Manager) Ms. Surber said she would provide a basic primer on the Critical Areas Ordinance (CAO) in preparation for proposed changes or amendments to the code. In general, the CAO is one of the most problematic sections of the code; it is difficult to interpret and quite technical. Ms. Surber noted that most jurisdictions have similar problems with their CAO. Under the GMA (Growth Management Act), a CAO ordinance is required. The CAO is an overlay to development standards; the basic development standards are not enough to protect people from life-threatening situations, property damage, etc. or to protect the functions and values of wetlands and other ecologically important azeas. There are several types of Critical Areas: 1. wetlands, frequently flooded areas, and critical drainage areas; 2. seismic and geologically hazardous areas; 3. aquifer recharge azeas; and 4. fish and wildlife azeas. Regulation applies to any activity that could cause an impact to the critical azeas it is not restricted to building/construction and includes clearing and grading, or removal of vegetation. Mr. Emery noted that this could dovetail with the Tree Ordinance. Mr. Ray cited an example where building a drainage ditch to remedy a boggy field could have deleterious impacts on another site nearby. The challenges of obtaining assessment information were also discussed. There are guidance documents from the Department of Ecology and the Department of Fish and Wildlife. The Department of Commerce (GMA authority) also provides guidance to local jurisdictions. The challenge is to decide the proper interpretation and balance among these. The PT CAO was developed in 1992 and has been amended on several occasions, most comprehensively in 2005 when the State required taking "best available science" into consideration. Ms. Surber noted that it left to the local jurisdictions to apply those general guidelines appropriately in consideration of the local geo-physical conditions. Terminology can be confusing. She reviewed the meanings of "buffer" and "setback". Buffers are meant to be no touch, "left in its natural habitat" and "natural coverages". For a wetland, the size of the buffer must be determined. First, a qualified consultant must determine the category (I, II, III or IV) of wetland based on its function, value and size. The proposed intensity of use is also considered, e.g. light industrial, single family or park. From these factors a buffer size is determined; any use or development must be outside the buffer. In addition, a setback area is specified, within which no construction activity can occur. Ms. Surber described a scenario where a property owner cannot find a way to build on a property site within the above constraints. There is then a designated process of review, seeking possible mitigation on site, and if necessary on public land or other property neazby. There was a brief discussion of the "reasonable use" provision that allows such flexibility in certain situations. The goal is to allow reasonable use while still protecting the resources. P/arming Commission Page 2 of 8 There was a brief discussion as to the disclosure required when property is bought and sold. Ms. Surber said that if there has been any type of assessment done, a Notice To Title is required. Otherwise, the "due diligence" onus is on the buyer is to inspect available maps or to hire a consultant to walk the site. As to a CAO inventory, Ms: Surber said that is limited to a series of CA maps, based on soils and maps provided by DFW etc. Although these are available with platted overlays, wetlands do shrink and expand over periods of time. For most complete assurance, one can submit a study to the City to get an advance determination. The City requires a special study to be done by a qualified consultant because it does not have that expertise on staff, which also releases the City from certain liability. For example, to build on a marine bluff, a property owner must hire a geotechnical expert who is licensed by the State. The City reviews the report before issuing a permit. It also has the ability to require third party review. In general, realtors are not required to inform their clients about any likely CAO issues, but usually do so in keeping with best business practices. Procedural issues - Ms. Surber discussed the application of the code. The first question is whether the activity is Exempt. For example, to trim trees using hand tools without disturbing the soil, or to put in survey marker pins only, the activities are Exempt. If Exempt, the engineering design standazds must still be met. There are certain issues associated with the Waiver section. Ms. Surber said that the working interpretation of holding a Waiver means that one does not need to fill out an application; that a special study is not required; that one is exempt from the general performance standards. However, the specific performance standards, say for a wetland, still apply. The Notice to Title still applies. A Hold Harmless agreement may still apply. Ms. Surber referred to page 3 of EXH 2, 040E (1)j regarding waivers. There is confusion as to how a permit can be obtained/approved without an application and how to require notice to title and hold harmless without conditions associated with a permit. Also, staff believes more clarity is needed as to when Notice To Title is required. Minor Critical Areas permit (Type I) -this is required for utilities where the line will be re- covered and re-vegetated. For Type I's, an application and special study must be submitted and it is subject to all standazds of the code. A Notice to Title and Hold Harmless agreement maybe needed, but there is no public notice needed. Critical Areas permit (Type II) - This is the same in that an application and special study is required and it is subject to all standards of the code. However, a Public Notice is also required. An example of an application to build on a marine bluff, with Public Notice, was described. There were a number of neighbors concerned that the development on the property would have detrimental effect on multiple properties due to erosion. In this case, both the neighbors and the applicant hired geo-technical consultants; the City may hire its own consultant. The ultimate determination for this Type II permit will be the responsibility of the DSD Director. Only if appealed would the decision go to the Hearings Examiner. Ms. Planning Commission Page 3 of 8 Surber noted that these CAO permit decisions can become highly contentious and expensive, and require a great diligence and care in building a record. The most current pressing problems are outlined in the memo (EXH 2), along with the responses from the DOC, which was to suggest a survey among local jurisdictions with expected tum around with a month. When is a proposal subject to SEPA vs. CAO review? SEPA is the State's version of NEPA. Is a CAO permit required/necessary for proposals within the seismic hazard zone/aquifer recharge/frequently flooded areas? When is Notice to Title/Hold Harmless required? Ms. Surber said that in Port Townsend, a large area is zoned for seismic hazard, so discretion is used with regard to Notice to Title and Hold Harmless. She questioned whether or not that is necessary considering that single family and other buildings are required to build to UBC standards. In response to a question about the number of vacant lots in the City, Ms. Surber and Mr. Ray estimated that about 30 to 40 % of the 14,000 platted lots are vacant. However, many of the most attractive locations are on shoreline bluffs or in wetlands. There are other factors to consider, such as how many are actually suitable to build on for the uses needed and desired. It was also noted that historically the City was platted from maps without any regard for topological considerations, so that some lots are impossible to build upon. The usual process for code changes includes: workshops, proposed revision hearings, recommendation from Planning Commission to City Council and then City Council hearings and adoption. However, the CAO is incorporated by reference to the Shoreline Master Program, which is another overlay document. Since all Shoreline Master Programs are adopted by the State (DOE), any changes/amendments must be reviewed and approved by the State, as well as by the City. Ms. Surber said that since the Department of Ecology (DOE) has been so backlogged, certain changes had been postponed. Any amendments that are considered substantive by the State will be subject to State review. Ms. Surber returned to the questions above and explained the issues. One of the SEPA exemptions depends on the number of single family homes (i.e. less than nine single family homes) and another on volume of soil being excavated (i.e. less than 500 cubic yazds). However, if you are in a critical area, this exemption may not apply. The actual local jurisdictional code may either say that these SEPA exemptions do not apply so we will do SEPA review, or it can say there is a separate process under the CAO -which is what the City does. In the CAO, it specifically says a single family residence that requires a critical azeas permit is exempt from SEPA review. Ms. Surber believes that for simplicity it should all be done under one process if possible, but she said there is uncertainty as to whether the CAO permit should be over SEPA or the reverse. She said her reading says that if something isnon-exempt if it is in a critical area, then a focused review is done under SEPA, not a Planning Commission Page 4 of 8 critical areas permit. Some people believe there is a better process through SEPA than through critical. areas. She described a scenario where a single family home project involves a new street to the top of a hill on a marine bluff and the clearing/gradingirwolves more than 500 cubic yazds -that may warrant SEPA process. She said that the Director has stated that in cases of greater than 500 cubic yards, a SEPA review of single family home development is appropriate. Another complexity is the position of the State taken at the time of adoption of the SMP program guidelines: Critical areas review will not be done in Shorelines; Shorelines covers it all. This is based on the criterion that the SMP will provide "equal to or better than CAO protection ". If project A involves building on a steep slope, not in a shorelines jurisdiction, then Critical Areas will be applied. And if project B involves building on a steep slope under shorelines jurisdiction, then SEPA review will be applied. In response to a question, Ms. Surber said that the Storm Water Management Act is applied through the engineering design standards in any case. In response to a question about overlap between CAO and SEPA, Ms. Surber said that the CAO begins with the determination of the type of critical area, while the SEPA checklist takes a sweeping general approach that is applied to projects on all scales. SEPA provides the opportunity to address whatever issues/problems are uncovered, while the CAO is focused on the critical area only. They are roughly the same cost and both require public notice. She said that the Planning Commission and City Council should opine on this question, especially in view of the new SMP element arising out of the Anacortes case. She said she would provide copies of the Director's interpretation that incorporates discussions from the State Attorney General and local hearings examiner. In response to a question about who actually performs the SEPA review, Ms: Surber said that normally a SEPA threshold decisionldetermination is made by the Director and that is usually attached to a permit; the CAO permit is indeed a permit. Ms. Bowman asked if there is a critical azea category for an instance of a "brown field" or hazardous waste or toxically contaminated site. Ms. Surber confirmed that there is not, and that the State (EPA) is responsible for overseeing clean up of such sites. It was noted that if a proposal triggers SEPA review, then hazardous waste issues would be incorporated in the SEPA review, using the State's guidelines and standazds, as well as getting reports from the State. If the State required soils testing, they would assess that information. Is a CAO permit required/necessary for proposals within seismic hazard zone/aquifer recharge/frequently flooded areas? Within the CAO, the exemptions are listed. For example, if there is a steep slope in one corner of a 10-acre property, and a plan to build on another corner while meeting buffer/setback requirements beyond any evident risk factor, then there is no need to go through a critical areas permitting process. Some would argue that CAO review should apply to the entire property, but this is not the interpretation taken by DSD staff. Ms. Surber said that the Hearings Examiner had also discussed the meaning of "a substantial distance P/arming Commission Page 5 of 8 away from the buffer", since this is not actually quantified or technically qualified in the CAO. She said that the condition of the wetland, e.g. Category I pristine or Category IV, etc., must be taken into consideration. There was acknowledgement ofthe balance that. must be achieved between flexibility and protection; science is applied on a case by case basis. Until 2005, there was a code section entitled "Waivers" and a fee structure. In 2005, some waivers were eliminated and some were inserted into Minor Critical Areas; the waiver language per se was eliminated. Ms. Surber again referred to the 040E(1)j. section that remains confusing as to what exactly is being waived. She said the waiver fee is now being used to process/record a boiler plate form for situations such as are listed on the permit example matrix in the handout (see EXH 2). However, the full staff costs are not being recovered and staff is not clear if this review is really necessary. She pointed out other examples where the need for this type of review is uncleaz or does not seem warranted. In response to questions, Ms. Surber said that staff is sfill at the point of identifying problems and has not formulated actual proposed code changes. There was also discussion about possible elimination of the aquifer recharge sections and the implications. Staff has discussed when and for what uses waivers for aquifer recharge areas would be appropriate. The need for Hold Harmless and Notice to Title clauses were also discussed for aquifer recharge, frequently flooded areas and seismic areas. Maps do not specify liquefaction versus seismic areas. Chair Ray raised the question as to whether or not more Notice to Title service could be provided as a government service to the community. He mentioned that this information had been discussed with regazd to historic residences, as well as with regard to these geological and ecological factors under discussion. This would provide a higher level of confidence to potential property buyers. Ms. Surber noted that there would also be a substantial number of property owners who would not be in favor of this service. Also, the only opportunity for the City to insert a Notice to Title is in connection with a permit application. Ms. Surber summarized by saying that, for seismic areas, in some cases a Notice to Title would be appropriate and in some cases a Hold Harmless would be appropriate. The code specifies that for certain types of development a CA permit is required, e. g. a hospital. She believes it is possible to simplify the language for some other types of development that do not cause harm. Ms. Bowman inquired about regulation and process for a new home businesses within an existing residence. Ms. Surber said that the Home Occupation section of the code would prohibit certain uses such as auto repair in residential neighborhoods. There was discussion about whether or not there was adequate specification/protectionwirh regard to environmental issues, and agreement that that code should be reviewed with an environmental impact focus. Ms. Surber read excerpts from the sections of the Home Occupation code aloud; references to hazards, smoke, dust, fumes, etc. are present but the Planning Commission Page 6 of 8 emphasis is on disruption to the neighborhood and its occupants, rather than on potential environmental impacts. Ms. Bowman pointed out that if the single family residence is the focal point for SEPA review, it would be well to ensure that any uses with potential negative environmental impact are well defined and regulated. In summary, Ms. Surber said that she would provide any feedback from the DOC and DOW for the next meeting. She will also investigate whether it is feasible to map liquefaction versus seismic zones. She suggested that any questions that arise after the meeting could be mailed to her for further research. Mr. Emery noted the CAOs for City and County had recently been updated, and inquired if there has been any agreement between the City and County to deal with situations where wetlands cross jurisdictional boundaries; that is, development in one jurisdiction can impact the other. Ms. Surber said that the permitting authority rests with the jurisdiction in which the development activity takes place. Both the City or County would be notified by the other and each would comment on any situation where resources seemed to be threatened. Mr. Emery noted an example located off Discovery Road where a private property owner filled in County wetlands that are upland from the City portion of the wetlands, which will have impact on the City portion. There was a brief discussion about notification of the proper authorities. Chair Ray and other Commissioners thanked Ms. Surber for the workshop. Chair Ray then invited Mr. Heckscher and Ms. Bowman to fill each other in on their backgrounds since Mr. Heckscher had missed that portion of the meeting. VIII. UPCOMING MEETINGS June 10, 2010 -Workshop: Fences, Walls, Arbors and Hedges (continued from April 2l) Workshop: CAO (continued from May 27),~ this is tentative depending on whether additional information is received from DOC June 24, 2010 -Workshop: Upper Sims/ Howard Street Rezone Hearing: CAO IX. COMMUNICATIONS Chair Ray noted that he was unable to attend most of the recent Jefferson County Planning Commission meetings, but hopes to continue that informal arrangement in preparation for a joint meeting in the near future. Other Commissioners are also welcome to attend the JC Planning Commission meetings. Planning Commission Page 7 of 8 X. ADJOURNMENT Mr. Emery moved to adjourn and Ms. Bowman seconded. Chair Ray adjourned the meeting at 8:12 PM. ~_ Julian Ray, Chair Gail Bernhard, Recorder Planning Commission Page 8 of 8