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HomeMy WebLinkAbout120204 · · · ,- CITY OF PORT TOWNSEND PLANNING COMMISSION MINUTES December 02, 2004 I. CALL TO ORDER Chair Richard Berg called the meeting to order at 7:18 p.m. in Olympic Room of the Waterman & Katz Building. The meeting started late to allow people to locate the meeting place. II. ROLL CALL Members answering roll were Lyn Hersey, Alice King, and GIDrge Randels; Cindy Thayer, JeffKelety, and Steve Emery were excused; Liesel Slabaugh was unexcused. Also present were Consultant Eric Toews, Long Range Planning Director Jeff Randall, and Senior Planner Judy Surber. III. ACCEPTANCE OF AGENDA Chair Berg asked to change the agenda to include announcements. The agenda was accepted as amended.. Chair Berg announced he is resigning the Planning Commission effective the end of Year 2004. He will instead be filling a vacancy on the Historic Preserváion Committee where he feels his expertise is not now represented. He pointed out this will leave two unfilled positions including that of Mr. Irvin. Ms. Hersey indicated she would reapply for another term. Chair Berg reported there have been three ¡pplications; he suggested election of officers the first meeting in January. IV. APPROVAL OF MINUTES -- There were none V. UNFINISHED BUSINESS -- There was none VI. NEW BUSINESS Chapter 19.05 PTMC Review & Assessment Mr. Toews distributed his draft technical memorandum of Chapter 19.05 and gave an overview. He pointed out this draft includes use of "best available science" in designating and regulating critical areas required ly a 1995 GMA amendment. Port Townsend adopted its Environmentally Sensitive Areas Ordinance, Chapter 19.05 PTMC in 1992 and only minor amendments have been made since. Questions arose during discussion of the memorandum. It was determined, due to the fact there were so few in attendance and no one had,the information in advance, they would continue the discussion on December 9. There was no quorum, discussion was informal, and no formal business was conducted VII. UPCOMING MEETING December 9, 2004 Continued discussion of Chapter 19.05 PTMC VIII. COMMUNICATIONS -- There were none IX. ADJOURNMENT The meeting adjourned at 9:00 p.m. ~L~~ ~~ Sheila A vis, Minute Taker Richard Berg, Chair Planning Commission Minutes, December 2, 2004 / Page 1 · · · CITY OF PORT TOWNSEND PLANNING COMMISSION MINUTES December 09, 2004 I. CALL TO ORDER Chair Richard Berg called the meeting to order at 7:00 p.m. in Olympic Room of the Waterman & Katz Building. II. ROLL CALL Members answering roll were Alice King, Cindy Thayer, Jeff Kelety, George Randels, Liesl Slabaugh and Steven Emery; Lyn Hersey wa;¡ excused. Also present were Consultant Eric Toews, Department of Community Development Director Jeff Randall and Senior Planner Judy Surber. III. ACCEPTANCE OF AGENDA Mr. Randels made a motion to accept the agenda; Ms. King seconded. All were in favor. IV. APPROVAL OF MINUTES -- There were none V. UNFINISHED BUSINESS Chapter 19.05 PTMC Review & Assessment Chair Berg called for Mr. Toews to recap the discussion of December 2nd. Mr. Toews stated the purpose of this technical memorandum is to lay the groundwork for amendments they intend to undertake in Chapter 19.05. It is based on State agencies recommendations, and review of other codes from jurisdictions that have recently updated their Critical Areas Ordinances (CAO) in compliance with the statute. They found in their review a host of smaller details and acouple of major areas where the code appears fairly clearly not to meet what they hear from Ecology standards and what other jurisdictions are doing in regard to geologically hazardous areas. He cited the two major failings with the current code: I) Substmtive wetland standards, namely buffer widths and how to go about determining them; 2) Buffers from geologically hazàrdous areas, particularly marine bluffs (slopes 40% and greater). There are a lot of other recommendations that relate to closing loopholes found in the existing code. The primary purpose of this review and amendment is: I) Comply with the 1year update of the code. They were obligated to review all the development regulations and ensure they are consistent with implementing the Comp Plan and the Growth Management Act (GMA); 2) To implement the requirement adopted by the Legislature in 1995 to incorporate Best Available Science in designating and regulating to protect critical areas. Our code dates back to 1992 and does not fulfill this mandate. Some of the loophole issues discussed last week relate to a pretty clear requirement in the statute to "protect" critical areas (does not say, "any critical areas smaller than 10,000 sf are off the hook"). They are tying to identify areas where they think the code is particularly vulnerable to challenge and also areas where they think they can improve the substantive protection standards. Mr. Toews identified two loopholes they recommend to be closed to better fufill the statutory requirement to "protect": 1) Wetland exemptions currently unregulated by the code for Category III (5,000 sf and smaller), and Category IV (10,000 sf and smaller); 2) Development that would create less than 250 sf of new impervious surfate area within a critical area or its buffer. They also tried to identify areas where the code is rather glaringly deficient seeking to keep the amendments manageable and sensible, and where possible, particularly with regard to wetland proted:ion, follow Department of Ecology (DOE) recommendations, because they are developed in consideration of Best Available Science (BAS). Agency recommendations are something ofa "safe harbor;" if you deviate from them you would have to have a really valid scientific rationale. If you look at the administrative code criteria, you would to need to hire a team of biologists and experts to demonstrate that in deviating you are doing something that represents valid BAS for the particular environments protected in Port Townsend. Planning Commission Minutes, December 9, 2004 / Page I · · · Mr. Berg noted the law reading the way it does, allows jurisdictions to deviate if they want to take the initiative, Planning Commission Discussion Q Mr. Randels: Regarding thresholds, looking at the statutory language quotai on page 2 of the memo, jurisdictions ". . . shall include (his emphasis) the best available science. .." To him "include" means what is told to be included -- one of at least two, perhaps several, criteria. He wondered if he is misreading that langu¡:ge and if it had ever been litigated. He asked what that really means. A Mr. Toews was not aware of it yet having been subject to an appeal before the Hearings Boards. Jurisdictions are just now coming into compliance with these provisions as partof their required planning code updates. He thought the interpretation in Olympia by CTED and jurisdictions that he is aware of, is that "include" means that the substantive development standards need to be reflective of valid scientific process. A stmdard recommended by DOE is developed by using a scientific method, and comes up with a recommendation before a high intensity land use adjacent to a Category I wetland being a 300' buffer. They have done an exhaustive literature review, 1000 pages before getting to the appendices, on wetlands alone. To his mind, and other planners with whom he works, "include" means substantive standards that are reflective of the recommendations derived from that science. Mr. Randels: The verb is really to "use," rather than to "include?" From his legislative background, he ventures that the legislators in Olympia didn't think the word "include" meant "use." Mr. Toews asked how he would distinguish the two? Mr. Randels: To him, "use" would mean, you have b go by the BAS standards only; anything else is extraneous and cannot be considered. "Include" would say you should consider good science, but can consider other things as well. If his interpretation is determined to be correct, jurisdictions would havea little more flexibility than the memo seems to think we have. Mr. Toews: It is a valid point; he thinks jurisdictions have taken a cautious view. The genesis of this statutory provision was a climate in which the critical area regulations were bang dominated by politics and not science, and that was initially the whole reason for incorporating this provision. Mr. Toews asked for feedback as to whether or not the recommendations seemed rational and appropriate from Planning Commission perspective, whether there were other questions, concerns, issues with what is recommended and need to be factored in, also with the existing code update. After receiving Planning Commission feedback, by the end of the year they intend to prepare a linein/line- out bill format draft of revised Chapter 19.05, circulate it to a peer review group, e.g., both agency professionals and local critical area experts (biologists, wetlands specialists, geo-techs) that currently work with the code. They would bring that feedback and a draft to the Planning Commission in January, have another workshop, and further refme the document before going to hearing, hopefully late January. He welcomed Planning Commission feedback before they start code drafting in earnest. Q Mr. Emery: Could they include a map; he thought they pretty much knew the unbuilt areas but wanted to know if there is a way they could tell ifthere are any properties or areas that would be affected that may have already been built? Are we going to have to go retroactive on anything? Ms. Slabaugh: Was unclear with the reference in 19.05.100(E).4- Buffers and Setbacks to, ". . . anticipated development of the remaining vacant lots in areas such as SeaView Estates, Kanu Drive and Vista Drive." Is that grandfathered? A Mr. Toews: We are not going to undo plats or existing development. The new standards would apply to new development that triggered the need to obtain a sensitive areas permit. Q Mr. Emery: Was more interested in the buffered areas next to the wetlands, e.g. the middle school which is very close to the wetlands with the parking lot. Are there any changes that we are proposing that are going to affect an existing development? A Mr. Toews: Not to existing development. It would to new development. Three alternatives acceptable for wetland buffering according to DOE: 1. The inflexible, bright line buffer which varies from 50'- 300' depending on the category of the wetland. It doesn't take into account the functions and values of a particular wetland; doesn't take into account the intensity of the land use proposed. 2. Factors the intensity of the land use as well as the wetland category in determining a buffer width. There is a range, but still an unreasonably narrow range. · · · 3. The most flexible, the one that would that would be calculated to provide the most logical weiand buffer tailored to the specific wetland functions, values and specific impacts of a proposed use. Unfortunately, you don't know such things as how the wetlands in the undeveloped NW quadrant would be categorized, or what applicable buffer widths apply in a given development scenario. It is fact dependent. Though it provides a tremendous amount of flexibility, it provides less certainty. One can be certain that the buffer widths would rarely, if ever, be higher than they would be if they would be unler the bright line Alternative #1 that DOE also recommends Q Mr. Randels: Suppose there is a wetland or some other critical area, and someone proposes to do something, say on the south side of that area. You calculate what they are proposing t> do, calculate the wetland itself and come up with the buffer. Later someone comes along and proposes development on the north side, substantially more or substantially less intense than the south one, the calculations resulting in a different buffer. Is that the way it is supposed to work; is that a problem? A Mr. Toews: The cumulative impact being higher and overall intensity ofland use? Q Mr. Randels: Did not know if it is unfairness necessarily, because the second one is a more intensive use. But it's not cumulative; it's just each use taken on its own merit, evaluated, and one is more intense than the other and therefore has a bigger buffer. There won't always be instances where the buffer is determined from day one and in effect forever. A Mr. Toews: Reading into the point you made last week, you could for instance do a combination of alternatives 1 and 3, where you have a bright line. If you don't want to go through the special report process to determine exactly what point value ani what intensity land use you have to determine your buffer, you have a parcel that is big enough that you feel you can delineate it and are going to go with the 300' buffer on a Category I, there is no reason why you couldn't, and we could craft languageto accomplish that. Q Mr. Berg: Often being on the developer's side of the table, there are regulations throughout all of the codes where what you are allowed to do depends on the intensity. He thought this would be no different from many other situations. A Mr. J. Randall: Agreed. It's about protecting the resource. For instance, when you get into compatibility issues on the conditional use permit. Mr. Berg: Even in the building code; when you have a higher hazard on the other side ofthewall, you have to make a higher fire separation. Q Mr. Kelety: Asked if they could look at the critical areas in terms of what are actually there so he has a sense of what is really at stake -- we are talking about lands independent of, on the ground, WID owns, what's happening, how much? Is there any validity in looking at the inventory as we go through this? A Mr. Toews: Yes and no. It can be tremendously misleading. It is representative of the best information the City has. Unfortunately, most ofthe new information that has been added to the maps since initial adoption of the Critical Areas Ordinance is a direct result of processing permit applications. Mr. 1. Randall: You "bang" into it. Mr. Randels added, "If they are deep in the woods, nobroy knows about them, certainly not the extent of them." Mr. Toews: What we have is rather red-flag information that you may be within or in proximity to a critical area. With some it is less important than others. If you look at a composite critical arœs map, that is really misleading, because certain critical areas represent effectively no touch areas wherever possible, e.g. wetlands, Class I geologically hazardous areas. That is not the case with the aquifer recharge areas. Geo-hazards and wetlands are the ones to really pay attention to. Q Mr. Kelety: In each development, the property owner comes for permits for whatthey want to do; you first assess if it is a critical area? A Mr. 1. Randall: They look at the map. Also, applications fer a building permit ask ifthere is standing water on the property, is there a slope on the property. For every application you have to fill out an environmentally sensitive area questionnaire that is intended to get at these things. If there is somethiIg that looks like there might be an environmentally sensitive area, they will do a site view. Q Mr. Kelety: If the property was purchased and the property owner did not do his homework, and nobody in DCD knew about it, you end up with a marsh you cant touch? A Mr. J. Randall: That is possible; it happens, sometimes with a subdivision or something, before they have done any work; they have to apply for their project. DCD fmds about these things when they send out public notice to neighbors, and one of the neighbors says something about having a wetland on their property that affects the project, etc. Planning Commission Minutes, December 9, 2004 / Page 3 · · · Q Mr. Kelety: We get into this whole issue of buffering and land use restrictions-- unless it really matters you get hung to dry on things like this. It is nice if they know the inventory. A Mr. J. Randall: They certainly have some information. They can pull out the critical areas that seem the most relevant and do some mapping so they at least have a feeling for some of the scope ofwlat they know. Mr. Kelety: It might be of some value to briefly bring out the map for what they know right now, e.g. if it's bigger than a bread box. Q Ms. Slabaugh: Right now there is a buffer, that is a firm fixed buffer? A Mr. Toews: A fixed buffer. There are criteria under which the Director may either increase or decrease the buffer width, but generally it is fixed. Q Ms. Slabaugh: With Option 3 for rating the wetlands and having a flexible method, how does that increase it administratively? She thought processing a permit like that would take significantly more administrative time. A Mr. Toews: Currently there isn't wetlands expertise on staff. Staff does not review the wetland. Q Ms. Slabaugh: So the cost of that would go to the applicant. They wouldn't pay an extra administrative fee on the permit to have that rating? A Mr. Toews: No, the only situation where there would be a potential for an additional administrative burden is. .. other reports in the same area raised red flags, at which point there might be peer review of whatever that applicant submitted. Q Ms. Slabaugh: Regarding exemptions, you noted that currently it is very wide open so that the Director of the Department to basically able to exempt. A Mr. Toews: Currently -- you are talking about reasonable use exceptions? It's a provision that was even intended back in 1992 to address a very limited situation which is a constitutional takings situation where the application of the regulations denied all reasonable economic use of the property, and the property owner has a reasonable investment based on economic considerations, that you have to fmd some way of basically allowing a steam valve and allowing some use. Mr. Randels asked it that takes the guy who bought the swamp off the hook? Ms. Slabaugh indicated that is what she was saying; Mr. Randels did not think it does. Mr. Toews replied no, that in discussion this morning with the City Attorney it was concluded that essentially every one of these situations is fact dependent. What represents reasonable economic use in one situation, won't necessarily be the case in another. It depends on when the parcel was purchased-- purchased before the city enacted Critical Areas regulations? which versim of the regulations? Mr. Toews cited hypothetical cases of reasonable economical use cases, if bought in 1950 before regulations, and if bought in 1998 after the regulations were on the books. Mr. Randels suggested if you look at public press treatment of what is happening in King County, that seems to be a different interpretation. People are basically being told, whatever your plans were eons ago when you bought this land, you can forget it; the rules apply. Mr. Berg asked Mr. Toews if this isn't a clause in our local ordinance? Mr. Toews replied that even in the early 1990's the State recommended to include the reasonable use exception as an escape hatch to address the constitutional takings issue. Port Townsend's was included at that time in 1992, but it is very liberal. It has very few criteria to actually guide the decision maker in determining when or when not to grant such an exception. It is such unfettered discretion that it could be used in situations that aren't even necessarily constitutional takings. He is interested in the way it is being interpreted in King County, and they will have to follow up on that. The clear message from City Attorney Watts, it is fact dependent. Ms. Thayer stated it also says that if you bought a property in 1950 and at that time had these major ideas of what you were going to do, that doesn't necessarily mean you can do those things. You cannot, but you still have some expectations of reasonable use that may be less restrictive. Mr. Kelety pointed out how he change in zoning at Glen Cove had impacted people. Mr. Randels indicated that is not a taking not a constitutional problem. Mr. Kelety said they are changing the nature of the use. Ms. Thayer replied you still have use, and that is all you can expect to have. Mr. Toews cited another hypothetical case -- someone buys a 50' x 100' lot, with 200 sf of developable area on the top of a marine bluff. The rest is on the bluff face and beach below or essentially out in the area; the sliver that is on the top of the bluff, the flat part, is 200 sf. If the property owner purchased that in 1998 after the enactment of the geologically hazardous area regulations with the expectation they were going to do all sorts of engineering design solutions and build their dream home cantilevered out over the beach, that is an unreasonable use expectation. An expectation of reasonable use given those facts-- it would be a nice picnic area on the top of the bluff, not necessarily even a single family dwelling. Planning Commission Minutes, December 9,2004/ Page 4 . . . Mr. Kelety asked Ms. Thayer if somebody buys a property that is residential, and it changes; reasonable use says you can build a home there and the City changes it to commercial. Ms. Thayer replied it is reasonable to build a business there; Mr. Kelety countered it is not reasonable in want to build my home there. Ms. Thayer stated the expectation is that you have some use of itand gain some value. Ms. King noted that people scream takings all the time when you ask them to set back from the road, etc. Itis not a taking; they have reasonable use of the property. Ms. Slabaugh indicated Mr. Watts had explained to her it is the pendulum swing between the rights of jurisdictions and rights of the property owner, and right now with King County and everywhereit is swinging toward the rights of the property owner. She asked with the politcal context they are in, does going to a much more restrictive system put them in the position to get challenged? Mr. Toews did not think establishing a reasonable use criteria to guide the administrator in decision-making is setting the City up for constitutional takings challenges. If anything, it is helping to insulate the City against such a challenge; right now the guidance isn't there. Having the criteria is helpful both to identify situations that pose constitutional issues and to guide and help the Staff to identify them and determine how best to treat them. He replied to Ms. Slabaugh's comment that the opposite could be true, you would then run afoul of the statltory requirement to protect. Mr. Randels referenced 19.05.050(E), "If impacts are unavoidable, compensation must be required. .." He asked, suppose the compensation itself that is required effectively makes all economic use of the property infeašble -- if the numbers for things required don't work, and a person can't get any economic use out of the land by the compensation requirement. Mr. Toews asked that essentially the mitigation requirements are so high that it is not economic? Mr. Randels concurred and asked if that brings up a takings issue? Mr. Toews suggested it is analogous to a person who owns a commercially zoned property that is well beyond City wastðVater infrastructure. After some discussion Ms. Slabaugh asked if there is mitßation currently in the code, an option of mitigating elsewhere? Mr. Toews answered that it is a requirement. If you find yourself in a reasonable use exception situation where you have to allow some invasion and degradation of a particular critical are~ particularly wetlands, you would have to compensate for that loss in function and value either for an oasite mitigation somewhere else if your site allows for enhancement/restoration/creation. If it is impossible oDsite, he thought Ecology would recommend as near to the site as possible within the same sub-basin. Currently the City has a requirement to compensate, but they also exempt a lot of small, isolated Category III and IV wetlands which may be helping them avoid this situation. Mr. Berg asked if "reasonable use" is proposed to remain? Mr. Randall explained it remains and is clarified. Right now there is a lot of discretion and not much standard about where the boundaries are; these are very specific criteria that are really crafted after Washington State case law. They are intended to rather follow what is defmed as a taking; they are using the best information, the best criteria. All of this clarification is new. Ms. Slabaugh indicated it reads "reasonable economic use," and asked, that doesn't mean profit? Mr. Randall said "reasonable economic use" is a court-defmed term of art. "Takings" is a term of art -- "reasonable economic use" is part of what defines it. They are using terms that are already defmed in the law, not trying to Ire ate something new. It has been litigated. Mr. Randall showed several map boards and explained the process his office uses. It was stressed the maps show only what they know to be, and are not al~inclusive. Information is received from various sources, sometimes after notices are sent out. They know pretty much where things are in parts of town that are developed; in undeveloped parts of town, there is some lack of information. DCD will try to put together a composite map that addresses wetlands and has the latest information. Q Mr. Kelety: Asked Ms. Thayer if new buyers get that information; if it's known when you buy a piece raw, undeveloped land is it automatically flagged? A Ms. Thayer: There is no disclosure law on that at all. Q Mr. Randels: Before the contract goes into effect, you can go into City Hall and take a look. A Ms. Thayer: Any realtor with any good sense sends them to the City or County to find out. Mr. 1. Randall: Ifit is raw land that doesn't have infrastructure and nothing anywhere near it, before they purchase it, DCD is going to recommend either a technical conference to figure out what the infrastructure is. During that process they would have them fil out an environmentally sensitive area questionnaire. Ms. Thayer: Realtors usually recommend a tech conference, she thought good for a year. Realtors don't want them coming back of them either. Q Mr. Emery: 19.05.070 - Aquifer Recharge Areas --Are we taking into consideration aquifer recharge areas that are affected outside of Port Townsend too? A Mr. J. Randall: DCD also has an aquifer recharge map. They worry about things that potentially affect aquifer recharge, typically undeIground storage. Somebody out in the County-- somebody putting a septic on the Planning Commission Minutes, December 9, 2004 / Page 5 . . . edge of the City in an area that might filter down and be drawn up by a well in the County. A septic system is a big concern in an aquifer recharge area. Mr. Toews: His major concerns: 1) The chiefmitigation for aquifer recharge areas is sewer In the City we have sewers. 2) Commercial and industrial uses like underground storage tanks that could potentially leak and have adverse impacts on ground water. They are recaTImending retaining the aquifer recharge chapter, because particularly in the SW quadrant of the city they have nomesidential zoning. There would theoretically be the possibility of a leaking tank, etc., that could cause damage in ahydro-logically continuous aquifer that would impact people drawing potable water from underground out in the County. Q Mr. Randels: Does this section mean the City would limit development in order to protect less limited development outside City Limits? If thá is so, is that what we really want to do? A Mr. Toews. No, it means the City would condition and mitigate some nonresidential in the City under the aquifer recharge chapter to ensure that groundwater resources used for potable water out in the Countywere not adversely affected. Ms. Surber: We are not changing the regulations. It hasn't been a problem in the 10 years she has been here. Q Mr. Emery: Would impervious surfaces make a difference too? A Mr. Toews: It would make a difference to infiltJation in an urban area. He did not think there was anything in the aquifer recharge area that would seek to limit the impervious surface area within a commercial or light industrial zone. Mr. 1. Randall answered Mr. Emery about taking precautions ofmà<ing sure the water is clean, that stormwater would be treated of anything like fuels, etc., have normal containment and procedures that comply with other pollution. Ms. Surber: Another reason she did not want to see this section to go away is because she recently read that 27 million gallons/per hour of fresh water reaches the Puget Sound through aquifer recharge underground transfer. Ifwe want to protect water quality within the Puget Sound,which we obviously do for salmon and other reasons, we need to be cognizant of aquifer recharge areas whether or not we are using them as a water source. Mr. Toews: It rather paints a big red target on the whole project to suggest deleting an entire crìical area section. Q Ms. Slabaugh: 19.05.1 OO(E) - Buffers and Setbacks -- "Rates of recession, location of known slides or unstable areas, and planning time period (50 years, 100 years, etc.) can also be factored in to establishing a steep slope buffer." What is the planning time period? A Mr. Toews: The useful life of the structure. Q Ms. Slabaugh: What does the City require a planning time period be, or is there such a thing? A Mr. Toews did not think there is a current requirement, that now it is dependent on the recommendations of the geo-technical engineer you hire to do the report for your property, but it is something that could be done. Mr. Emery: Best Available Science. at this point is saying a rise in sea level has occurred. Wedon't know how much it will go up, but it is predicted there is going to be additional bluff erosion. He is all for buffer setbacks because 50 years it could be a whole new set of circumstances. Q Ms. Slabaugh: The current setback is 25 feet? A Mr. Toews: It could be varied down. Ms. King: It is pretty standard in the County-- essentially the same as in #1 (1 foot for every foot of bluff height up to a maximum of 100 feet). She thought the minimum to be 25 feet, but on a 75foot bluff you wouk:l set back 75 feet that is what this is saying. What scares her is 25 feet. Q Ms. Thayer: Does this coincide with what they are doing with Shorelines? A Ms. Surber: Yes. It is the same. Q Mr. Kelety: With the process for a person having the 25 foot who figures everything is okay-- we changed this now to a greater buffer, if they come back to challenge that, they have to do it with scientific hydrologists, engineers who come in and say they approve all this for them to build there. Is that the pDcess they would have to go through? A Ms. Thayer: It is new development; we are not talking about existing plats. Q Mr. Slabaugh: #5 says the setback can be reduced so they can move back from the bluff. A Mr. J. Randall: Ease up on the street; set back on the lot to be further from the bluff. Q Mr. Berg: Under these rules, if someone has one of the lots, e.g., in SeaView Estates, ". . . the steep slope buffer could be reduced further when necessary to allow development of a singl5family residence." You have a small lot, and could conceivably build a singlð-family house that could come to within 25 feet ofthe bluff that Planning Commission Minutes, December 9, 2004 / Page 6 . . .. would be approvable under the current rules. These new rules go through-- somebody owns this lot, it's not built on, and someone wants to build a house. The new buffer is going to be 50 feet, or 1 foot per foot of height? A Mr. Toews: There are two things happening here. There is kind of a threshold requirement for when a geotechnical report is required -- that is what these standards really relate to. If you are within 50 feet you have to do the geo-tech. On a 250-foot bluff if you are within 100 feet you have to prepare the geo-tech report. The buffer widths are the recommendations of the qualified geo-tech. Q Mr. Berg: We don't know what it is? The geo-tech is going to come up with the number? A Mr. Toews: Concurred. Q Ms. King: So, that is the bright line. If they build back 100 feet or whatever, they don't have to do a gee tech; just meet that standard and they are done? If they want to come closer, they have to do it? A Mr. Toews: Concurred. Q Mr. Berg: Under the new rules, they get a geo-tech report; it says it is not really safe to build any closer than perhaps 75 feet from the bluff. However deep, the scientifically based recommendation is there is not enough room left to build the house. A Mr. 1. Randall: In reality, that would probably come up if you have a situation where maybe a lot is 30 feet deep on a 100 foot bluff. They have seen geo-techs willing to go down to 18 feet. They allow very small buffers. The question, is it developable; it is 30, 25, or 40 feet deep, so shallow, could you build something there and be setback? There are going to be some of those. They have seen some that are the face of the bluff now. Q Mr. Berg: Under these rules, if the geo-tech report says 18 feet, that is enough? A Ms. Surber: You have a minimum for new subdivisions. Mr. J. Randall: The question is with existing platted lots how low can you go? Q Mr. Berg: You can go as low as the geo-tech says. A Ms. Surber: You still have to preserve the functions and values of that lot. If there is native vegetation there, it provides functions and values in the form of habitat; if a fœder bluff, you have to protect salmon flow to the water. Places like Kanu Drive where there is the Larry Scott Memorial Trail and rip rap at the bottom, it is no longer a sediment source because of the rip rap at the base. That area is fòr the most part denuded of any vegetation. She cited a case where you have a lot with houses on either side of it, right out on the edge of the bluff. How much do you want to push for a super setback on this house? What would you gain by doing that, other than the illwill of the property owner and a bad name for yourself? In those cases we wanted to look at the geologic hazard-- the only thing you want to protect against is the safety issue. Therefore, they could allow closer than 25 feet, basically just infilling. Mr. 1. Randall speculated Mr. Randels question regarding gap: if you have an existing plat, a house here, another 200 feet away, each 20 - 25 feet from the bluff, someone wants to do an infilllot and new standards say you are supposed to be 75 feet from the bluff, what is the answer going to be? Mr. Randels added, not necessarily an infill, just an existing structure that deteriorates to the point where it doesn't make sense to preserve it. You wipe it out and that triggers the new rules. You are not rehabilitating an existing structure; you are building brand new, should you or can you come way back? Mr. 1. Randall stated there are probably ways for the per&>n with the existing house to try to take advantage of the fact that is there. With the situation where you have the vacant lot between some other houses-- currently with the Shoreline Master Program there is that issue. Is there consideration given toadjacent homes? Mr. Toews replied, there is not the way it is drafted. Mr. Randels thought they should rethink that saying Ms. Surber's point was very well taken. All you are going to do is anger someone for very little gain. Mr. Kelety suggested mape it would be two lots and two houses in between. He was not so sure and felt it rather went back to the inventory. Ms. Surber indicated there are not very many. Mr. Randall thought the remaining are the ones harder to develop. Ms. Surber thought it important to write into the ordinance for the existing platted lots that you could get reduced buffer, but you still have to protect the functions and values that exist there. Mr. Emery noted protecting Heron nests. Q Mr. Randels: Referencing manuals or documents throughout, beginning 19.05.020(56). He suggested trying to come up with language that automatically incorporates changes to updates, reissues, rewrites, etc., of these particular manuals, so our statute is brought up-to-date automatically as those things are brought up-to-date. He was not sure it would work in every instance, but he suggested they do it when they do think it would work. Planning Commission Minutes, December 9, 2004 / Page 7 . . . A Mr. J. Randall: Suggested, "Most current version of. . ." Ms. Surber: Thought it would work for some, but not all. Mr. Toews: With Stormwater, for example, there are some jurisdictions where there has been a conscious decision not to include language when there isn't a clear mandate to do so. There are situations where a particuhr version ofa document might arguably still be consistent with best available science, and you wouldn't necessarily want to automatically go to the newest version. He thought it was a good point where possible Mr. 1. Randall: Some are more likely than others. Stormwater has been one of the biggest problems. Wetlands for example, when the new one comes out everybody really wants to use it. It is the best available science and typically the wetland delineation system is the one you really need to use. He told Mr. Randels this might eliminate the need for an amendment. Mr. Randels was sure they would choosethe ones they should use. Regarding a Mitigation Fund, Mr. Randels presumed there would be instances where small projects are proposed and where mitigation is appropriate. Even if mitigation is possible it may make more sense to have ialieu of actually doing something on- or off-site; have a contribution to a fund, presumably managed by the City or some other expert body, which would then do bigger mitigation projects -- use the resources in the fund. He thought society would benefit from that; rather than doing a lot of little things, doing a smaller number of bigger things. Mr. Toews thought that was a great point. They have discussed it as something they need to do to really protect the resources as best they can; they need to have a combination of regulatory and programmatic, noa regulatory, efforts. Beefmg up the standards in the critical areas ordinance is ore piece of the puzzle. In the longer term they probably need to look at systematically identifying, for instance, wetlands in public ownership in the City that are degraded and could be sort of "landing zones" for offsite mitigations in terms of things like enhancement or restoration. Mr. Randall indicated that is something Staff is looking at; they have all identified that as an issue and is something they are very interested in. Mr. Randels felt the memo rather danced around it. There were some place; where he thought he envisioned a fund, but it wasn't said explicitly. He thought they ought to be explicit, do something about this in the context of the rewrite of this ordinance. Mr. Randall stated one of the difficulties if you are going to do itas something to compensate for an impact, there are some legal requirements. You have to have the program set up, the project identified, have it in a time that relates to the impacts so that the money is applied to something and mitigates the impacts ina certain amount of time. Mr. Randels asked who said they have to? Mr. Randall explained that is the legal framework-- if it is something being done to mitigate the impact of that project. Mr. Toews said essentially they are talking about mitigation banking. There are explicit codes as well as statutory requirements that guide the establishment of a mitigation bank. They are in the most perfunctory manner addressed in some of this language. This is DOE trying to provide guidance to localjurisdictims as of August 2004. The header.to this subsection indicates this section still needs to be developed. He said DOE is pretty hazy in providing guidance on a wetland mitigation banking program, and asked if they have suggestions, to please let them know. . Mr. Randall pointed out they are really on to something. They have all talked about the issue, we are in an urban environment-- how are we going to achieve "no net loss"? What other things can we do? We know there are going to be impacts and that cumulatively there is going to be net loss. Mr. Randels suggested entering into an agreement with the County; set up a bank for both jurisdictions. The bank could within reasonable time parameters, which he thinks are years,supply mitigation to take into account that with a whole bunch oflittle things they could do some big things -- if 5 years later, that is still good science. Mr. Randall concurred they are interested, but they are not going to have a fully pledgedout program with the adoption of this ordinance. This is a goal and something they should look into; basically acquiring, protecting and restoring larger, valuable systems that should be in public ownership. It is something they want to do. Mr. Toews added, if that is the recommendation and feeling of the Planning Commission as something that should be a programmatic policy priority for the City to pursue, he thought that would be a good thing to make explicit in a report. Mr. Randall noted it will take a lot of work, but it is not to æy it shouldn't be done. Ms. Surber stated they have talked about a lot of other incentivð-type more programmatic ways of achieving better protection for the urban growth area, but realizing they have a statutory deadline for the critical areas ordinance, they thought they would work on getting this statutorycompliant and then recommend there is this broader approach. Some non-regulatory approaches that had been considered were discussed. Mr. Toews will remind the Planning Commission of this recommendttion for their deliberations. Planning Commission Minutes, December 9, 2004 / Page 8 · Chair Berg asked for Staff expectation. Mr. Toews asked for any grave concerns over any of the recommendations or anything not addressed that they need to factor into their bill format draft. There was discussion comparing circumstances in the original and with this draft. It was pointed out that although there are fewer parcels in the steep slopes, there are still a lot in the wetlands category. Mr. Randall thought it was not as drastic a change. People know they need some sort of permit, if they are near a wetland, and may have to do some special studies. They may get some concern with people who own some of the undeveloped bluff land and want to know if they can still develop it; what they can do to enhanc their view; how much vegetation they can cut and trim; consolidating lots, etc. He thought they would get those interested in Kah Tai and protecting the resource who will be watching to make sure they do a good enough job and following science. Q Ms. Slabaugh: What about the private side ofKah Tai? A Mr. Toews: One thing they need to do between now and making recommendaton to City Council is to bring some folks here from DOE to run through some hypotheticals. Go out, look in the field and apply buffer alternative #3 to really determine the difference in some given situations between what is on the books now and what they are proposing. His sense is that in many instances recommendations under alternative #3 are not going to be hugely at variance with what is on the books. Ms. Thayer agreed. Mr. Toews: Because it is such a fact-dependent determination based on intensity of use -- the actual functions and values of a wetland more than solely wetland type. There is no way to know in advance. · Q Mr. Berg: So we are going to have the $2,000 engineering study being the only difference between the current standards and the new ones? . A Mr. 1. Randall: Who is going to pay for a useless study? Q Mr. Randels: They should be very careful this doesn't become a consultant's employment act. A Mr. Toews: This two-tiered approach is a good one. If you want a bright line, we will undoubtedly have to go to that time and expense. That is an option for you. There may be some situations where we have no Category II wetlands that functions and values are not currently fully intact. You might be able to get away wi! a buffer that is, in fact, lower that we currently have on the books if you go through the alternative #3 process. He thought it would be useful to have some folks from DOE help us through some situations so we have a better feel for it. Mr. Randels suggested in that context, it would also be very useful to have the bank, because then the decision could be made. He would rather spend $2,000 in a bank than with a consultant. Theoretically that choice might be present. Mr. Toews disagreed saying he did not think that was the situation. We are describing different alternatives for avoiding impact entirely. Do you use the bright line Category II buffer width, or do you use the alternative #3 point determinate buffer width? We are not s~gesting that you are permitted to encroach upon the critical area or its buffer. That is really a reasonable use exception situation where the only way a project can happen is through degradation and you are going to have to make that up somewhere else. Ms. Surber would like to see whether or not through this DOE consultation they could for areas like Kah Tai, Chinese Gardens, maybe lower Winona, if your lot is separated from the wetland by a paved street, let's recognize the functions and values have diminished to "X" which is probably recharge of the wetland, and therefore you don't need a reasonable use exception; you just need to apply these conditions to protect that particular function. Ms. Slabaugh thought there was a reference to when you are 01 the upland side of a road (Appendix 8-C, Condition 2, page 9). Mr. Toews thought that is the approach under alternative #3, and how you arrive at your point total. Ms. Surber saw the need to skip over that reasonable use exception portion of it, becauæ you are within the management buffer. Mr. Toews said if you need to see some "as applied" examples of alternative #3 as it is already devised and envisioned under the DOE recommendations, would that be the result. If you have intervening roadway and development, does that automatically get you out of reasonable use? Q Ms. King. Type III, how subjective is the point system? Can you have competing experts on that, assigning points, or is it pretty straightforward? A Mr. 1. Randall: On the boundaries, you can have one say it is a Class II, one Class III, etc., when they are rather close. Mr. Toews: Once you have typed it, he expects two consultants could differ. Mr. 1. Randall: They haveto show their work; they fill out workshœts. It is not arbitrary; you have to show your math. · Planning Commission Minutes, December 9, 2004 /Page9 . . . Mr. Toews: It is still pretty variable. You get two geo-techs and you are probably going to get two buffer width recommendations. It is a judgment call. Ms. Surber and Mr. Randall each had only sent out one wetlands report for peer review. Ms. Surber thought that is because the code is currently written to make it quite difficult to send it out for peer review. She said she does not have the expertise to defmitively say the report holds water. She would like peer review to be easier. For a small jurisdiction where they don't have inhouse expertise, she thought it should be easier for them to say they need peer review. She is concerned, since the wetlands ratings system has changed, and woudllike to see that the fIrst person going forward with a wetland report setting a categorization, that it be subject to peer review so they can be confident using that category for at least the next few years. Q Mr. Randels: In a small community like tlis, how does peer review work? He could see where it might cause problems looking over the shoulder of your competitor, your colleague, friend, etc. Has that been a problem, or likely to become one? A Ms. Surber: For wetlands, she fIrst contacted DOE and asked if they had the staff to do it. Mr. 1. Randall: Used someone in town that used an ou~of-town wetlands person. Mr. Toews: There is a certain level of trust with locals. Mr. J. Randall: Concurred, but there are certain situations; they get repltations/characterizations. DCD has a list of folks and try to recommend those that are more balanced. With geo-techs and everything else, it is based on science, but there is still a lot of art to it. There are a lot of differences, but it doesn't saywe shouldn't have peer review. There are professionals who will travel from places like Olympia for not much more cost. Q Mr. Berg: With these concerns and going back to alternative#l or alternative #3 scenario, where #3 is the consultant employment part, maybe there is something in between where there are some prescriptive alternative #3 situations. Ifwe walk around town with someone from DOE, or whomever, and we fmd there are numerous places where alternative #3 would create the same answer, maybe there could be a prescriptive alternative #3 thing that is available to be used. A Mr. Toews: His concern would be science. The thing about alternative #3, even if it arrives at the same answer, it's doing it using a method that i> considered to be valid scientifically. If you were using alternative #3, and you were fmding that 7 times out of 10 it was giving you an answer that was within 10% of the existing buffer widths, essentially half of the alternative #1 approach that DOE is now recommending, and you were to say that is justification for retaining what we have on the books because in most instances it works, he did not think that would fly. Q Mr. Berg: That was not exactly what he was suggesting. If your devdopment proposal fits a certain set of criteria, i.e., there is a paved road between your property and the wetland, could there be a prescribed method. A Mr. 1. Randall: Almost like you stopped the analysis-- you go through, come to something and cbn't have to go any further? Mr. Berg: Concurred. Almost like you don't have to do the other $1,500 worth of analysis. We have the paved road between my property and the wetland; therefore, I don't have to go any further, but we know we could reduce the buffer by half because the paved road is there. Ms. Surber: In a sense you are doing the science upfront. Saying with these conditions the functions and values are preserved, since there are such limited functions to begin with. She thought it may 1æ doable, for say the lots across F Street from Kah Tai lagoon. Mr. Berg, saying certain kinds of situations that tend to recur around town. Mr. Randall: Maybe it's an example where you do something the fIrst time and you run into that situation again; somehow administratively you can apply the analysis done before and you can tell the wetlands person, here is what you can do in these situations. You only have to do X, Y, Z. Mr. Toews: Essentially what we are talking about is alternative #1 with clearly identified exceptions that arrive at a result that may be similar to the end game if you pay the $1,800 under alternative #3. He thought you could come up with some bright line scenarios where the buffer width, plain and simple, doesn't apply. Q Mr. Berg was trying to suggest you keep the small developer/home owner people who are working with limited engineering and design budgets in mind. He encouraged them, if they could, to save them from doing what is essentially a bunch of unnecessary engineering expense, and find some ways to provide some scenarios that are easily usable. A Mr. Randall: The more things that can be prð-designed. Ms. Surber: Maybe you go with a really conservative performance standard, and if you want relaxation from that, maybe there is a process you go through that you have to do the science yourself. Planning Commission Minutes, December 9, 2004 / Page 10 · · · Q Mr. Berg: That is what alternative #3 is. Ms. Slabaugh: We don't even know if alternative #3 is going to relax them or not. A Mr. Toews: It is unlikely it is going to result in a lot of buffer widths that are lower than what we have now; it may in some instances. He thought in the main it will result in buffer widths that are not that widely divergent from what we have now because of degraded conditions and singl5family residences being a moderate intensity land use. Q Ms. Slabaugh: It seems a shame to spend all that money to find that out. She likes the idea because it is based on a more scientific look at things, trying to be flexible and take into consideratim function. Ultimately, you are probably doing a better job by preserving our wetlands this way. Mr. Randels: Absolutely, in the context of a subdivision. For a single lot, to the extent we can keep those expenses down and give them bright lines, we ouglt to do it. What is a brighter line than a street? A Mr. Toews will talk to Paul Ingrahm of Berryman & Henigar to get his thoughts. Q Ms. Slabaugh: Read an excerpt from Appendix 8-C, page 9, Condition 2. A Mr. Toews: These are special conditions for possible reductions in buffer widths. Mr. Randall: That seems to imply anything upland of that major improvement, like a road, wouldn't be an intrusion into the buffer at all. Mr. Toews: Suggested that rather than including these special conditDns for reductions of a buffer, simply include it in the buffer section, saying, if you are landward of a road, the buffer doesn't apply. Mr. Randall: Or there is a developed house. . . Mr. Toews: Structures roads -- he will work on that. Essentially, what they are talking about is alternative # I with exceptions. Mr. Randall: That would be really nice. They run into that in shoreline situations. Q Ms. Slabaugh: What is buffer averaging that is mentioned? A Mr. Toews: It has to do with varying buffer widths. There are situations where you can decrease the buffer width to a certain extent, and punch it out somewhere else so long as the net effect maintains the functions and values of the wetland. Ms. Surber: It allows, say on the site where there has been previous disturbance, that you build on the area previously disturbed, protect the area that is pristine and waiver that buffer to average out. Mr. Toews: A 40 foot buffer is recommended, and you have an ¡rea that encroaches 15 feet that is degraded already, you might allow 55 feet somewhere else; punch into a portion of the buffer in one area. Mr. Randall: It is probably more likely to occur on a bigger parcel, like a subdivision or something. They control the rest of the buffer. It is all on their property, so they can push it out. If it were on a neighbor's property, it would be difficult to do. Mr. Toews said he is going to take a basic approach on the wetland buffers to see whether it makes sense from a code drafting perspective to have full-blown alternative approaches, or whether for clarity and administrative ease it would make sense to go with alternative # 1 with exceptions. Q Ms. Slabaugh: Didn't you say that might not fly? Mr. Randels: Theyhave both been approved by the State, so they both meet the State's interpretation of the BAS. A Mr. Toews: It is just that the State hasn't been explicit about carving out these exceptions, buffer width under alternative #1 outside the context of buffer width reductions. We are essentially talking about a waiver. Q Mr. Randels: He would be comfortable with doing that, and taking their chances. A Mr. Toews: Will talk to Mr. Ingrahm. They may go ahead and prepare draft language for both aternatives, and maybe run some scenarios of alternative #3 with folks from DOE to see what that really means on the ground. Mr. Randall: If they can get some support from DOE, they want to test their comfort with it. If DOE were more likely to be comfortable, they would be more likely to be comfortable to take the risk. Q Mr. Berg: It seems worth exploring. A Mr. Randall: It is still a draft document. They might like the idea and incorporate it. Q Ms. Slabaugh: It seems doing that testing on #3 is really important A Mr. Toews: Concurred. Flexibility always comes with a fair degree of un predictability. There is a lot to be said for certainty, even if it means more stringent standards. Chair Berg asked regarding the level of feedback from thE meeting. Both Messrs. Toews and Randall replied they felt it was good. Planning Commission Minutes, December 9, 2004/ Page II · · · The upcoming schedule of workshops and public hearings was discussed. Mr. Toews noted he planned to circulate detailed code amendment language in bill format for peer review by D«:ember 25th. There was concern over having information for discussion and public hearing. The schedule was set as listed below. VI. NEW BUSINESS -- There was none VII. UPCOMING MEETINGS January 13,2005 Workshop including Peer Review of Draft CAO Amendments; Election of Officers January 20, 2005 Workshop, Open House -- Proposed Off-Street Parking & Loading Code Amendments January 27, 2005 Public Hearing, CAO Amendments February 10,2005 Public Hearing Off-Street Parking & Loading Code Amendments X. COMMUNICATIONS -- There were none XI. ADJOURNMENT The meeting adjourned at 9:15 p.m. ~'û~ Richard Berg, Chair ---....... ,/,&¿~ Sheila A vis, Minute Taker Planning Commission Minutes, December 9,2004/ Page 12