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HomeMy WebLinkAbout090204 Ag Min . . e CITY OF PORT TOWNSEND PLANNING COMMISSION AGENDA Marina Room, Point Hudson 3:00 pm (Note change in time & location) I. Call to Order II. Roll Call III. Acceptance of Agenda IV. Approval of Minutes ~ August 12,2004 V. Unfinished Business VII. New Business Workshop Statutory Requirements, Best Available Science 1. Presentation by Eric Toews 2. Public Comments 3. Planning Commission Discussion VI. Upcoming Meetings VII. Communications VIII. Adjournment September 2, 2004 · · · CITY OF PORT TOWNSEND PLANNING COMMISSION MINUTES September 2, 2004 I. CALL TO ORDER Chairman Richard Berg called the meeting to order at 3 :05 p.m. in the Marine Room at Point Hudson. II. ROLL CALL Other members answering roll were Lyn Hersey, Aliœ King, Jim Irvin, Cindy Thayer, Jeff Kelety, George Randels, Liesl Slabaugh and Steven Emery. Also present was Long Range Planning Director Jeff Randall; Senior City Planner Judy Surber; Eric Toews, Cascadia Community Planning Services, Consultant for tIe Comprehensive Plan Update; and Paul Inghram; Consultant for the Shorelines Master Program III. ACCEPTANCE OF AGENDA Ms. Thayer made a motion to accept the agenda; Mr. Kelety seconded. All were in favor. IV. APPROVAL OF MINUTES Mr. Randels made a motion to approve the minutes of August 12,2004 as corrected; Mr. Irvin seconded. All were in favor. V. UNFINISHED BUSINESS -- There was none VI. NEW BUSINESS -- Workshop Workshoo = Statutory Reauirements. Best Available Science Mr. Toews gave a first touch overview on Best Available Science (BAS) of the Growth Management Act (GMA), one of the items docketed for the 2004 Plan and Code update, and how it relates to Chapter 19.05 PTMC. Besides being docketed and being under statutory requrements, that provision of the code was formally adopted in 1992 before the Comp Plan and regulations and needs to be updated. The wish is to be more protective of the environment, lives and property in the city, to reduce the potential for future clean lp and restoration costs. He stated that almost as important is the need to make the code clearer and easier to administer. Ms. Surber briefly enumerated how critical areas (CA), environmentally sensitive areas (ESA) in our areà, are used. They review applications, e.g., building permits, clearing and grading permits, new subdivisions, against such maps as geologically hazardous areas, wetlands, frequently flooded areas to see if you are in or close to a mapped area. Ifit is thought to be in or near a mapped area, they do a site view. Neither she, nor anyone else in the city, is qualified to make a wetland delineation determination. If determined to be suspect, the applicant is informed they have reason to believe, because either mapped or conditions exist on the site, that they are in a CA, ESA, and they will need to retain a consultant to determine: 1) It either does or does not meet the defmition-- if not, perhaps ending with a brief letter from the correct qualified consultants. 2) If it meets tIe defmition, standard construction practices may not be enough to either protect the property or to protect the environmental resources, and they would be required to have the consultant determine the impacts of the development or how to design for potental hazard. The consultant's report is submitted to the planning staff with the recommendation of how to mitigate, avoid, or design for an impact, which is then incorporated into an ESA permit that meets all the guidelines within the code. Q Mr. Randels: Does that same process apply to a site which is near, but not actually in, such a designated area, your instinct this might have an impact across the border? A Ms. Surber: If it is close to a wetland but not on your property -- trying to determine if you are within wetland buffers as set forth in our ordinance, those buffers are meant to provide a needed protection. Q Mr. Randels: The buffer would be part of the sensitive area? A Ms. Surber concurred; the buffer within the wetland. The buffer wOlld be part of that sensitive area. Planning Commission Minutes, September 2, 2004 / Page 1 · · · Q Mr. Randels: Suppose I am just outside the buffer; what I was going to do might affect the buffer, which would affect the wetland itself. A Ms. Surber: She did not know of such a situation occurring. Mr. Jeff Randall: If you are outside the buffer, you are outside the buffer. Mr. Toews explained that the Growth Management Act (GMA) was adopted in 1990 and most recently amended in 1995. The original and remaining requirement is that all localities throughou the state adopt policies and regulations that designate, then regulate to protect critical areas. Critical areas (CA) we are required to regulate are found PTMC 19.05: · Wetlands · Areas with a critical recharging effect on aquifers used for potable water · Fish and wildlife habitat conservation areas · Frequently flooded areas · Geologically hazardous areas He said they are regulating all five areas despite the fact there is some question whether or not the City of Port Townsend has Critical Aquifer Recharge Areas that are actually used as a potable water source. He stressed that GMA does not set forth specific standards for CA regulations; there is considerable authority allowed to look at other jurisdictions in classifying, designating and regulating. Thereis no one-size-fits- all. It was determined that jurisdictions were not keeping the minimum guidelines in meeting the statutory requirements, specifically non-scientific sources and methods being used, e.g. in wetland delineation. In 1995 a new section was added to the RCW to include best available science (BAS) in designating and regulating CAs. BAS is considered "research conducted by qualified individuals using documented methodologies that lead to verifiable results and conclusions." There is no one bright line standard that everyone is following. BAS means different things when applied to specific geophysical conditions on the ground, in a particular locality. References we have from credible sources using credible methods essentially establÜh the bookends when looking at our own regulations and determining whether or not we fit within those bookends. Mr. Toews asked Paul Inghram if he wanted to talk regarding how the GMA critical areas requirements relate to the Shorelines Master Program. Mr. Inghram is consultant for the city's Shorelines Master Program update, working with the city's Shorelines AdvisoryGroup. Mr. Inghram noted there are a variety of state laws involving environmental protection. There has been an overlapping of the two key laws of the GMA, the Critical Areas Protection discussed by Mr. Toews, and since 1972 the Shoreline Management Act (SMA), which they have been working with, that requires protection of areas adjacent to the shoreline. The legislature amended the GMAin 1995 to require integration of the two, but did not indicate how it would happen. He cited the Central Puget Sound Growth Management Hearings Board decision regarding the City of Everett's attempt to regulate their shorelines and referencedESHB 1933 that resulted and took effect on July 27, 2003. The Hearings Board had essentially said the shorelines must be critical areas, e.g., water and habitat, resulting in a lot of argument especially in industrial areas. He noted the two sets of regdations in ESHB 1933: 1) Critical Areas in Shoreline areas regulated through the Shoreline Master Program (SMP); 2) Outside shoreline areas, generally 200' away from the water-- anywhere upland Critical Areas, regulated through the CA regulation program. Mr. Inghram noted Mr. Toews mentioned BAS as part of the Critical Areas regulations that apply to the upland areas. Under recent SMP guidelines the State has adopted, the SMP is required to be equivalent or better to the CA regulations, theoretically equivalent, although technically two separate sets of regulations. He and Mr. Toews are collaborating as they walk through the steps, knowing they may come up with the same things. Mr. Toews indicated that as much as possible they have been tl)ing to borrow from research and analysis being done for the SMP update. They also draw on the highly qualified consultants and scientific advisors on the Shoreline consultant team. Basic steps in updating Chapter 19.05 include: · Review applicable requirements and determine what steps are needed to comply. · Handouts: Relevant GMA Provisions (Goals and substantive provisions of the GMA); Relevant WAC Provisions (Guidance developed by State administrative code rules for classifying, designating and regulating Critical Areas. BAS requirements.) · Preliminary red-flag review of Chapter 19.05 to fmd areas where the code is plainly lacking and inconsistent with what they know the science to be, and what other jurisdictions are doing. Planning Commission Page 2 September 2, 2004 · · · · Reviewing and considering recommendations: developed by State agencies, particularly Dept. of Ecology (DOE), Wildlife and Natural Resources; tremendous amounts of resources from larger jurisdictions, e.g. Snohomish and Pierce County, ability, know how and extensive records toreview in update of our regulations. Mr. Toews said it is important to note there is no one set of recommendations to guide them. State agency recommendations are extremely useful and are developed in consideration of BAS using defensible techriques. Although they don't necessarily reflect the BAS, it may be defensible and appropriate for the City to call those out as the sources on which they rely, simply because they lack the resources to conduct an exhaustive literature review, and hire a scientific team necessary to determine what precisely would fit in Port Townsend, given our geophysical conditions. They are going to do the best they can; going to be increasing substantive protection standards in the code that in several instances are plainly lacking. Q Ms. King: Will BAS change over time -- methodologies and procedures? A Mr. Toews: It is ongoing. This year it is because of a separate requirement in RCW 36.70A.130 to review and update our Comp Plan and development regulations to ensure they are still consistent with meeting GMA requirements. That is a recurrent obligation for Port Townsend each 7 years. The provisions of RCW 36.70A.172 require consideration and application of BAS which imposes an ongoing obligation, so in tIe next review and update of the Plan and development regulations they will need to be taking another look to ensure what they have adopted is still in step with BAS. Mr. Toews noted there are many resources and a wide range of recommendations thatwere developed using credible sources and methods. They are acutely aware of their limited resources and limited expertise. They intend to borrow from the work of other larger jurisdictions, recommendations of State agencies, and where possible follow the lead provided by other communities. City regulations are in need of update. They have been on the books for 12 years without any significant substantive change, adopted from a pretty decent model, Bainbridge Island regulations, which were modeled a&r regulations adopted in King County jurisdictions. A credible approach was used in 1992; the code provisions are reasonably well organized and appear to address the major requirements of the GMA. Current review of Chapter 19.05 PTMC conducted in conjunction with Berryman & Henigar and Mr. Inghram's helpfulness has revealed a number of significant areas of concern the City intends to address in this amendment cycle: · Significant protection standards, particularly for geo-hazard areas and potentially wetlands. Modify to 'reflect BAS and agency recommendation. · Defmitions, e.g., "qualified professional" in 19.05.020, particularly related to geo-technical analyses for geo-hazard areas. Make sure they are employing people with the credentials and expertiseto prepare those reports and evaluations. · Applicability section of the code is not clear. Make clear they are regulating development that is likely to impact critical areas. · Exemption thresholds. Modify to make sure they are actually protecting criticalareas as required by GMA and things they are exempting. Reexamine small wetlands, under the square footage, making sure they are protecting critical areas regardless of size and location. · ~'Reasonable use exception criteria." Tighten the criteria to avon unconstitutional takings. · Critical Aquifer Recharge Areas. There are no known wells in-city used as a source of potable water. Needs verification and whether or not these provisions should be retained in the code. Q Mr. Randels: Regarding aquifers, even though we may not have wells in the city,perhaps groundwater underground in the city may well be used by suppliers of water or users of water outside the city. If that is the case, we may have so.me responsibility, even though it is not a city resilent. A Mr. Toews: That is a good point. They have not reached any conclusions. They initially thought they need to look into this issue since there is a whole subchapter of regulations, the condition of permit, that to his knowledge has never been empl~ed since adoption in 1992. Mr. Toews outlined the future intent, proposing borrowing from the work of Berryman & Henigar and Geo-Engineers and what they are doing regarding the shoreline environment. The Shoreline standard must be at least equal to the regulations for upland areas. If they are doing something consistent with the Shoreline standard, they will also meet the GMA requirement in the upland areas. There are some critical areas that may not necessarily Planning Commission Minutes, September 2, 2004 / Page 3 . be found in the Shoreline environment that may exist in upland areas. That needs to be reviewed to see if we are meeting the BAS requirement across the board. Cascadia, Mr. Toews' company, will: 1) Propose a line-in/line-out version of the Code, taking into consideration results of the 'red-flag" analysis prepared by Berryman & Henigar, after reviewing literature available and recommendations of State agencies. 2) Prepare a technical memorandum going through each substantive section of the code talking about what we have now, agency recommen:lations, and suggest in terms of substantive regulations, e.g. wetland buffers or buffers from steep slopes; tie their recommendations for specific substantive amendments to the code. 3) Circulate the draft to a peer review group of qualified professionals inthe area that have specific expertise in working with critical area regulations and knowledge of BAS. 4) Prepare Draft #2 with broader public review, they can begin public process with the Planning Commission, hopefully late fall. 5) The goal: Planning Commission recommendation regarding amendments to 19.05 completed early 2005; Council review beginning winter with adoption April 2005. They are obligated by statute to meet a December 1 deadline to update the Plan and development regulations, but they feel itis necessary and appropriate to have broader public involvement and be more careful and deliberate. They feel with adoption in Spring 2005, they prevent any appellants filing a "failure to act" against the City. Mr. Toews encouraged looking at WAC 365.195, Part Nine, the State guidelines relating to consideration of BAS before beginning the more substantive review in October. Q Mr. Irvin: How do you intend to constitute this peer review group? A Mr. Toews: Work with Staff to identify qualified profeæionals they have been working with across the counter for years, to prepare and review the required reports and studies of the Critical Areas Ordinance (CAO). Try to bring them in the loop, also probably getting some feedback from agency officials. Theywelcome any expertise that would help improve the regulations. . Chair Berg opened the meeting for public comment and Planning Commission discussion. John Cambal!k, Local liaison for Puget Sound Action Team (PSA T), a partnership of State and Feœral agencies, tribes and local governments working to protect the Puget Sound þasin, including the Port Townsend area. Mr. Cambalik said he would be offering his assistance to the City through the CAO and SMP process. He added that the Action Team put together a list of recommendations for growth management updates and have made it ~vailable to the City. He asked they be put on the list of State agencies. Nancy Dorgan As Mr. Toews pointed out, agency recommendations for how wide the buffers ere going to be, or whatever, fall within a range. Her comment to the Planning Commission was, "Do your best, your best for the environment, for Port Townsend, and go for what is the maximum in that range." PLANNING COMMISSION DISCUSSION: Q Ms. Hersey: 1) SMP is going to take care of the first 200', then critical areas kick in after that. Are all areas next to shoreline considered critical after 200'; is that the baseline? A Mr. Inghram: Critical areas would be those 5 different categories. For exanple, if a wetland occurs within that 200' zone, it is regulated through the SMP. If it occurs upland, regulated through the Critical Areas regulations. But the regulations are only where the wetland or some other critical area exists; they are not evef)Where along the 200'. Mr. Toews: Practically, when you look at the composite overlay of various critical areas in Port Townsend in relation to the Shorelines jurisdiction, it is clearly the location of the city's greatest concentration of critical arIRs -- fish and wildlife habitat. Ms. Surber: Another layer would have to be added through Shorelines, critical salt water habitat-- things . like Eel grass beds. Q Ms. Hersey: 2) If you follow the lead of other communities, how do you know if they havtrlone the right. Planning Commission Minutes, September 2, 2004 / Page 4 . thing and used the BAS, or are winging it like we are going to have to do? A Mr. Toews: King County -- literature review, the research is voluminous by some of the model jurisdictions. Findjurisdictions that have done this extensive resean:h and review, particularly those in close geographic proximity to us, conditions that are reasonably analogous to Port Townsend's, see their final decisions in terms of substantive regulations, knowing it factors BAS. State regulations are also going tobe really helpful. Ms. Hersey: If you remove aquifer recharge because we are not using it, what if we ever expand city boundaries? We would probably take up a lot of property that is on wells, at least for the time being. Suggested, if we expand saying something for these kick back in so we don't have to go through a whole process. Ms. Surber: Borrowing from other jurisdictions that have more resources, we are interjecting scientists to the best of our funding sources. The Shorelines jurisdiction has geo-engineers with their scientists reviewing the available science and making recommendations for shorelines. She reiterated what Mr. Toews said that pretty much every kind of environmental sensitive area within the City is found within Shorelines jllisdiction. Mr. Toews is also going to have scientists for wetlands and geo-hazardous areas experienced in our particular conditions. It is not as though they are relying on a annotated bibliography from King County. Mr. Toews noted practical problems in the code regarding new wetland buffer recommendations coming from DOE that are different from present city code. Scale that out, e.g. on the map around Kah Tai Lagoon, you find areas of fairly intensive development on most sides extending back in all drections. It is not clear in some instances what that additional buffer width will necessarily gain in terms of actual protection. It could set up a situation where you have more reasonable use exceptions under the code. They are looking to fmd the be ¡ way to protect Kah Tai Lagoon and not necessarily just have a number that doesn't accomplish anything. Mr. Toews explained it is going to be a difficult balancing act in some instances to ensure they are consistent with substantive recommendations of the literature, e.g., 300', and at the same time look at the practical realities in Port Townsend, not just creating an administrative nightmare that doesn't result in greater protection. . Q Ms. Hersey: 3) When the professionals look at wetlands, possibly smaller wetland areas, do they ever look at how the wetlands were made; man-made or natural? A Mr. Inghram: If someone creates a wetland as part of a mitigation project, an artificial wetland, that would be regulated asa wetland, but if created in tœir back yard as a water feature, it would not. They would want to determine which ones are being regulated. Q Ms. Thayer: Suggested doing an extensive tour of different wetlands before doing review of Critical Areas. A Mr. Toews: Thought that was a good idea, that there are questions regarding code amendments they are contemplating that would be illustrated most effectively by site visits, e.g. Kah Tai Lagoon, zones within the 300' line. Q Mr. Irvin: Is there to be a revised Shorelines Master Plan out this fall? A Ms. Surber: She and Mr. Inghrams are working on that with the Shorelines Advisory group. Mr. Inghram: We expect to have something to comment on by the end of the year. They are trying to do these somewhat together. Mr. Irvin: Wondered if reading that draft might be educational for the Planning Commission. Q Ms. Slabaugh: Looking at line in/line out code recommendations, what are the specific BAS sources? A Mr. Toews: The technical memorandum will cite sources bdng used. Q Ms. Slabaugh: Comparing sources, sorting through what is best BAS for our town; how can the Planning Commission make it fit our community? A Mr. Toews: BAS is not clear-cut. They will use credible sources with credible scientific methods. They expect public. feedback and will have to deal with it as it unfolds. They are trying to provide information on what they looked at for substantive changes they made. Mr. Randels asked if given there is no one right answer to many of these issues, pDviding not only our own expertise but also that of the review panel, have you given any consideration, instead of providing an answer, rather providing a range of options? Giving the Commission and Council leeway rather than being locked in and having to take on the scientists? . Planning Commission Minutes, September 2, 2004 / Page 5 . . . Q Mr. Emery: When the peer review panel goes through the technical information the Commission has to consider, are they going to rely on recent science with new studies; are you going to try to find the most credible data for basing your information? A Mr. Toews: These people are experienced with Port Townsend. Aside from BAS, it will be feedback from people who actually work with provisions of the code. Q Mr. Emery: Is anything going to be looked with BAS' predictions for tIe near future, e.g. effects of the 1/4" change in sea level since the 1990s; recent gully washers, a large amount of water coming down in a short amount of time? They are saying those are more common and we are going to have to plan for flash floods eventually, or someplace to contain all that water. A Mr. Toews: If it continues it may need to be remapped at some time. Ms. Thayer: Look at ponds around that go dry periodically and come back again. Is that any different; you can't really predict that is going to happen in the future. Mr. Toews referred to storm surges. Q Mr. Berg: Is it the end of this process that the maps are going to be redrawn? A Mr. Toews: That is not the focus. From information that has come to light since 1992, we need toupdate . some of those maps; classify and designate critical areas if they meet the criteria. Q Mr. Berg: Being somebody who works on the development side, to them maps are interfaced with this law. It is critical what is on the maps in dealing with peope. He had thought that BAS applying to the rules was not as potentially contentious as increasing buffers on the map. A Mr. Toews: In amending maps, there is specific data available. He cited a project with an unmapped wetland that was identified and delineated as part of the project review and mitigation. It is good to show those on the map for informative purposes and future application permits. He did not think anything has happened since the code was initially adopted that changes the criteria from what needs to be designated as a critical area. The science has changed regarding what best protects those areas. Q Mr. Berg: It has more of an effect on mitigations applied to a project than whether or not it is inside a critical area? A Mr. Toews: And clarifying the applicability. As eluded earlier, activities adjacent to designated and regulated critical areas that could be quite damaging to critical areas but aren't necessarily regulated under the current code. Mr. Inghram: Current code for the Shoreline, requires a 25' setback from top of bluff. They could build 30' away from the top of a 200' tall bluff without requiring some sort of review by a geetechnical consultant. Q Ms. Thayer: Does not remember major adverse comments when they didthe first CAO. A Mr. Toews: That CAO represented a quantum leap ahead of where the city was. It was volatile at the County. Ms. Thayer: People have learned to live with regulation. Q Mr. Randels: Regardless of whether or not it is contentious, itseems we are changing the maps and we ought to do it òpenly. They are a trigger everybody looks at; if the map had been accurate there wouldn't be a question. It seems somebody is obliged to change the maps and do it as conscientiously as possible. He mswered Ms. Thayer's comment that map changes depend on what they do, and said if they are changing the words that have the effect of changing the map, he thought they ought to do both at the same time. A Mr. Jeff Randall: Clarified what the maps show: known wetlands, steep bluffs, areas offill like downtown, areas of major cuts, some areas that are geologically unstable, known fish and wildlife habitat areas, which are primarily along our shorelines, aquifer-recharge areas which are solely based upon soil type that allows water to penetrate through it. They don't show buffers. Q Mr. Randels: Maybe they should. Ifwe are writing in a statute a number, 30', 300' or whatever, that is a buffer zone. People like Mr. Berg look at a map to see whether or not what they are thinking about doing is affected by this legislation. It seems putting the buffer zone on the map is a good idea. A Ms. Surber: Ideally she would not disagree, but in actuality they do not know the category of every one of the wetlands on our maps. A buffer is based on a wetlands-qualified consultant doing a delineation, its the size and characteristics, and stating the category, 1,2,3 or 4. Ms. Thayer: Maybe it shows on the map, but turns out not be a wetland at all. Mr. Jeff Randall: It is almost like a radar screen; probably something is there. Every time it takes a site investigation, sometimes by a qualified professional to determine exactly what it is and exactly what the appropriate buffer is. Unfortunately, we can't bethat accurate with the maps. Mr. Toews: Adding buffers raises more questions than answers. Planning Cominission Minutes, September 2, 2004 / Page 6 . . . Ms. Hersey asked what is the Planning Commission role? She looks at this as if they are legislature recommending to Council and their baseline is legislative, not administrative. What they decide goes to Staff who does the administration of our recommendations and legislation. They put the nuts and bolts to the ground. If they feel they want to put buffers on maps, she thinks that is their call. The Commissionis to crunch the numbers and look at BAS. She has found in her experience that although politics in the city always plays a big role, on the Planning Commission it almost always does not. They base their decisions on the best information they get from Staff, even though they do listen to the community, the Planning Commission is not a political body. Ms. Thayer asked Staff if they would bring the maps. She thought it would answer a lot of questions. Mr. Randall agreed saying some of them may need tobe updated. Mr. Toews thought the wetland map is particularly important, that the maps should be updated periodically. It is important to realize the maps are an informational tool, not a regulatory device, nor zoning maps. Mr. Randall added they are adninistrative and informational, not regulatory, and they don't go back to Council every time they change them. Ms. Slabaugh was glad for the clarification, but thought it might be good to know what might be political, or could get contentions among public opinion, so they can prepare for that in the way of issues. She said they had mentioned Kah TaL Messrs. Toews and Randall answered-- buffer widths; wetland buffer widths; buffer widths from geological hazard areas; bluffs etc. Mr. Inghram suggested thinking of such places as Chinese Gardens, places adjacent to known wetlands and other places within the Shoreline planning area. Chair Berg asked for Staff comments. Mr. Toews reported this would be coming in draft form probably in O:tober with lines-in/lines-out accompanied by a technical memorandum. VII. UPCOMING MEETINGS September 30, 2004 Parking Code, first touch VIII. COMMUNICA nONS -- There were none IX. ADJOURNMENT Motion to adjourn the meeting was made by Ms. Hersey and seconded by Mr. Irvin. All were in favor. The meeting adjourned at 4:34 p.m. For the record, Ms. Thayer announced she would be out of town until October 9. jZ/J- ~ Richard Berg, Chair ~ Sheila A vis, Minute Taker Planning Commission Minutes, September 2, 2004 / Page 7 S~:J) \1) S~~-:t ~ :I i 11 !I , " >I ¡I II 11 - II II 'I !! ~ ,..:6 ~. I -y- !! " u