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HomeMy WebLinkAbout072406 Minutes . . . City of Port Townsend Planning Commission Meeting Thursday, August 24, 2006 City Hall Annex, Third Floor Conference Room 7:00 PM Meeting Materials: EXH.I. Agenda - Planning Commission Meeting of August 24, 2005 EXH 2. John Watts, E-Mail to Planning Commission, Changes to Critical Areas Ordinance - PI. Comm. August 24 Meeting, August 23, 2006. EXH 2A. Attachment to EXH 2 - Filename: RevisioTI_to_CAO_2899_8_23_06.doc that contains Version 2: Amendment to Ordinance 2899, Section 19.05 PTMC EXH 3. Nancy Dorgan, Memorandum: CAO #2 Questions/Comments, August 24, 2006 EXH 4. Excerpts from the CAO (Critical Areas Ordinance), 2899, pages 23 -26 EXH 5. Proposed Interim Standards: Preliminary Approaches (Table) EXH 6. Draft Ordinance, 2928, Establishing Interim Standards EXH 7. Draft - Fall Planning Process excerpt (Table), "PComm Schedule" EXH 8. Guest List I. CALL TO ORDER Chair Randels called the meeting to order at 7:00 PM. II. ROLL CALL Planning Commission members present were: Harriet Capron, Steve Emery, Roger Lizut, George Randels, Julian Ray, Liesl Slabaugh, Cindy Thayer and George Unterseher. Alice King was excused. Staff: John Watts, City Attorney, was present for the CAO Hearing portion of the meeting. Rick Sepler, Planning Director, was present for the entire meeting. III. ACCEPTANCE OF AGENDA Chair Randels moved and Mr. Lizut seconded that the agenda be approved. The agenda was approved, as written, all in favor. IV. APPROVAL OF MINUTES - None V. GENERAL PUBLIC COMMENT - None VI. UNFINISHED BUSINESS A. Continuation of July 27, 2006 Public Hearing - Land Use Code Text Amendment, Amending Chapter 19.05 Critical Areas -Proposal is to directly reference DOE 2005 Stormwater Management Manual (John Watts, City Attorney) within the text of the Critical Areas Ordinance (CAO). Chair Randels reminded those present that the rule pertaining to public hearings read at Planning Commission Meeting Minutes of August 24, 2006 Page 1 of 13 . the previous meeting remained in effect, and asked if the circumstances of any Commissioners had changed so as to require disclosure of any changes. There were none. Mr. Watts began by stating the purpose of the meeting, which was to continue the public hearing and discussion ofthe proposed CAO amendment and to clarify certain issues and questions which had been raised just prior to the Hearing that had begun on July 27, 2006. He said that the gist of the proposed amendment is to make explicit reference to the DOE February 2005 Stormwater Management Manual into the CAO (Critical Areas Ordinance) instead of doing so by reference in other City ordinances. . Background - Mr. Watts conveyed the following information: The City Council adopted, on Planning Commission recommendation, the update to the CAO, Ordinance 2899, in July 2005. Under the GMA (Growth Management Act), the use of Best Available Science (BAS) was required by the legislature to be incorporated into Critical Areas Ordinances to protect critical areas. Ordinance 2899, adopted by the Council in July 2005, did not do that with respect to stormwater regulations; it was not intended to do that by its terms. The City's plan was to review the DOE revisions to the StormwaterManual, which had come out in April of2005. (It was dated February 2005, but the publication was not actually available until April.) Then, after that review, the plan was to amend City ordinances as necessary to incorporate the required BAS standard. In December of last year, the City Council approved a first reading of an ordinance that stated that any reference in any City document, referencing design standards to the DOE Storm Water Manual (and there were a number of references in various City documents to the DOE Storm Water Manual) were going to explicitly mean "reference to this document here, the February 2005 DOE Storm Water Manual". The Council approved the first reading in December 2005. Council approved the second reading of that ordinance in June 2006, and the delay between the July 2005 adoption, the first reading of the amendatory ordinance in December 2005, and the June 2006 adoption was in part due to the consultant review of the 2005 Manual. He said that the consultant, David Wright, was also acting director of the DSD department, at the time. Mr. Watts said, "The point for reference is that GMA, including the amendments to GMA by the State Legislature requiring the BAS standard, does not say that you must adopt the DOE Manual. It says that you must utilize BAS in your protection of critical areas. It doesn't mandate the adoption of the DOE 2005 Manual, nor does DOE put this out as a regulatory document. It puts it out as a guidance document, the idea being that if a city or county adopts the 2005 manual, in all likelihood, it is going to withstand a challenge by a third party that the City is not using the BAS standard." Following the adoption ofthe CAO in July of2005, Nancy Dorgan appealed the CAO adopted by the City to the Western Washington Growth Management Board ("Board"), which was established under the GMA to resolve GMA issues. Mr. Watts said that he and Ms. Dorgan agreed to two postponements with Board approval, to allow the City to revisit the CAO and to consider the adoption of BAS. He said that he thought that had been accomplished with the amendatory ordinance that had been adopted in June of this year (2006), which basically said that all references in City codes and engineering design standards to the Stormwater Manual means the 2005 version of the Stormwater Manual. . At the Board Hearing in late June, Ms. Dorgan argued that the City, even with the adoption ofthe June ordinance, replacing all references etc., still had to explicitly plug the 2005 Manual into the CAO and that doing so by reference didn't meet the GMA requirement. Therefore, at the Board Hearing (actually during a break), Mr. Watts and Ms. Dorgan discussed language that would, in fact, incorporate the 2005 Manual into the CAO, instead of a general reference. Mr. Watts said Planning Commission Meeting Minutes of August 24, 2006 Page 2 of 13 . that they identified three or four places in the CAO adopted in July where changes would be proposed that would incorporate the 2005 Manual into the CAO. He said they agreed on exact language, and that language was read into the record before the Board. The Board suggested that both parties agree to a 60-day postponement for the Board to issue its final decision; the Board has timelines under GMA within which to act. That would allow the Planning Commission and City Council to consider and take action on the proposed revisions that had been presented to the Board. Mr. Watts restated that the understanding was that, with those changes that had been read to the Board, the question of whether or not the CAO incorporated the BAS standard had been resolved. Mr. Watts said that, for this group's information, there were other issues that Ms. Dorgan had presented to the Board as part of a separate challenge, call it the non-BAS challenge. But the intent of the stipnlation was that we would resolve the BAS issue, i.e. whether or not BAS was incorporated into the CAO as required by the GMA. The Board is scheduled to issue a decision by the end of September. It is interested in whether or not the City Council is going to follow through and accept the recommendation from Mr. Watts, and if the City Council does adopt the BAS standard by explicitly referencing the 2005 Manual into the CAO, then that will resolve that portion of Ms. Dorgan's appeal to the Board. (Mr. Randels pointed out that the end of September would be 90 days, not sixty days, and Mr. Watts explained that the Board had had about 30 days more time remaining, plus the 60 day extension.) . Mr. Watts said that following the Board Hearing and stipulation to the Board in June, he prepared version #1 of the ordinance amendments, which was the version that was presented to the Planning Commission on July 27. Ms. Dorgan presented a document to the Planning Commission at that meeting; Mr. Watts was on vacation and not present at the meeting. That public hearing was continued, awaiting Mr. Watts' return. Mr. Watts said that one of Ms. Dorgan's assertions in her memo of July 27 (ref: Meeting Materials, Planning Commission Minutes of July 27,2006, EXH. 3) was that even with the amendments reflected in version #1, the CAO still did not state or contain an explicit requirement that development that occurs within a critical area must comply with the DOE 2005 Manual. In response to that, Mr. Watts said that he had prepared version #2 (EXH. 4), and sent that out via e- mail on August 24. He said that he believes that version #2 addresses the issue, i.e. as to whether or not the CAO makes all development comply with the standards of the 2005 Manual. He said, "So, version #2 was intended in part to address the issue Ms. Dorgan had raised in her memorandum to the Planning Commission on July 27." . "The requirement that development comply with the Stormwater standards of the 2005 Manual is already in a general provision ofthe City Code, in a general development regulation of City code at chapter 13.32. This chapter applies city-wide, not just to critical areas, and the PTMC 13.32 reference states that all development shall comply with the 2005 Manual. Now that same language, i.e. the requirement, in version #2 is carried specifically into the Critical Areas Ordinance. So, if the Planning Commission recommends version #2, and if the City Council approves version #2, then in my view this will, although it is up to the Growth Board of course, resolve the BAS challenge that Nancy (Dorgan) asserted in her petition. Again, there are other issues that she has presented and the Board will deal with those separately. And, in my view, those are not part of what is before you tonight. The CAO, with the adoption of version #2, will say that storm water management for any development in critical areas must meet the 2005 Manual with some very limited exceptions that I will talk about in a minute. And that will, in my Planning Commission Meeting Minutes of August 24, 2006 Page 3 of 13 . view, allow the Board to say that the City is in compliance with the GMA requirement to utilize BAS in the CAO, and then the Board will deal with the other issues, i.e. what I call the non-BAS issues. And so, that change, just so we are on the same page, is in the e-mail for version #2; it is on page I of Exh A, section 2, of the first page, where the first paragraph is all stricken, and the next four lines say that all development subject to the provisions of this chapter, i.e. the CAO, shall comply with the 2005 Manual - in addition to other City documents such as the engineering and design standards, Stormwater Master Plan etc. "The other change is on page 2. It is in section 3, paragraph 5: the word 'alter' is stricken, the proposed language had been the "use will not alter the rating or factors used in rating the wetland." The DOE had stated in comments to Judy Surber during the last few weeks that they would prefer the phrase "adversely affect" instead of alter. The City does not have a problem with that requested change by DOE. That is the second change and we agree with that change." . ''I'll comment now on a requested change in Nancy's (Dorgan's) July 27 memorandum to the Planning Commission. It is in the same section we were just looking at, at the second to the last line. Regarding the phrase, "and there are no significant impacts to wetland resources." Nancy (Dorgan) asserts or urges that the word significant should be taken out of this section. For your reference, in the version passed a year ago, there was a section, section A (which is the next paragraph immediately below that is stricken out) that had subsection A, dealing with category I and category 2 wetlands and buffers, and when they could be used for stormwater retention/detention, and on the next page it had subsection B, dealing with when category 3 and 4 wetlands could be used for a project's retention and detention for stormwater. Therefore, the rewrite that is in the underlying background, at the bottom of page 2 and is not stricken out, essentially combines the previous language that had been divided up between subparagraphs A and B. So, we have one paragraph dealing with when any category of wetlands can be used for retention/detention purposes. "One other change, a technical change, is that in the stricken portion of subparagraph A, there was a reference to chapter 14 of the Puget Sound Wetland and Stormwater Management Research Program (Homer and others, 1996). All of that science has been incorporated into the 2005 Manual by DOE. Nancy (Dorgan), Ken Clow (City's Public Work's Director), and I all agree that it is not good ordinance writing to refer to another document, when we can simply refer to the later document. Now, the way this paragraph reads, if a project seeks to discharge stormwater off site, then these are the things that must be met. On the second line, it states that you may only do it if all applicable requirements of the engineering design standards are met, if the use will not adversely affect the rating of the wetland, if the proposal is in compliance with the DOE Manual; and ifthe City finds that there are no significant adverse impacts to the wetlands." Mr. Watts said that all of those things have to be met in order for the offsite discharge of stormwater to occur. He added that, basically, what it says is that even if a project complies with the Manual, i.e. BAS, the City is still in a position to make a detennination that there is a significant adverse impact to a wetland and further condition or mitigate the project. He said, "So, that is what is going there with that paragraph." . Mr. Watts said, "The objection that I have to the removal of the word significant as requested by Nancy is that would mean, in my view, that no matter how insignificant the adverse impact is, it would be prohibited." Mr. Watts gave the example of a project that discharges 5 parts per million (ppm) of element or compound X, say a chromate or oil; that would be a form of pollution. "The argument could be asserted that that is an adverse impact, because you are adding pollution to a wetland and pollution, perhaps by definition, is adverse: so that discharge would be prohibited, if the word significant is removed. To me, that creates an unworkable result, because it is beyond Planning Commission Meeting Minutes of August 24, 2006 Page 4 of 13 . the BAS requirement of GMA, which already has be to be met by compliance with the 2005 Manual. I suggest that the word significant needs to be remain in there to allow de minimis discharge of pollution, which is already allowed by BAS. The point is that the removal of the word significant from this section significantly raises the bar for what can and cannot occur with respect to discharge, goes beyond the DOE guidance, and goes beyond the BAS requirement of the 2005 Manual." He added a comment on the 2005 Manual. "The 2005 Manual does not say that no reduction in values can occur. It says the reduction in values has to be managed here, but it does not say that you cannot introduce any pollution into wetlands. It says that the level of pollution, the amount and the quality, shall meet the BAS in the Manual. It says reduce to the levels that are set forth in the Manual. The goal of the Manual is to replicate pre-European discharges from a site. So, if in the 1700s a site was heavily forested and 90% of the rain water that hit the site stayed on the site, then the goal of the Manual is to replicate that position. But the Manual also recognizes that with urbanization, you cannot hit that target 100%; there is going to be some degradation by virtue of urbanization, and you are still meeting BAS." Mr. Watts referred to the memo from Ms. Dorgan (e-mailed earlier in the day (EXH. 3); extra copies were supplied. Mr. Watts described the question as "How do the reasonable use processes apply, given the proposed standard to meet the stormwater standard? He referred to the first bullet in the middle of the page: I 9.05.040.B, and explained that BMPs are best management practices. Mr. Watts said that the answer to the question is that projects will be required to meet construction BMPs, which deal with erosion control, but they would not be required to meet monitoring BMPs or other forms ofBMPs that are in the 2005 Manual. . Mr. Watts moved to the next sentence in that bullet: How does version #2 deal with otherwise exempted projects? He distributed excerpts of the CAO (EXH 4), referring to page 23, noting that section 040 dealt with critical area permit requirements. "On page 24 toward the bottom is a section on Exemptions. It says that the following development shall be exempted. The question Nancy (Dorgan) asked is "Are these 100% exempt, or when you engage in these activities are you still required to follow the manual?"" Mr. Watts said, "If you look at the exemptions starting on page 25, you will see a whole range of things that are exempt, and he read examples from the list. He said, "My view is that when an ordinance says exempt it means it's exempt. These are deemed to be minor activities, insignificant activities if you will; except for the emergency activities they are deemed to be minor and therefore would not be required to comply with the other provisions ofthe CAO. We can come back to that if we need to." "The next bullet of the Dorgan memo (EXH 3), asks how many vested undeveloped lots are currently exempted? And this refers back to what we were just looking at on page 25 (EXH. 4), an application for a building permit for which there has already been a critical areas study meeting the requirements ofthis chapter - that's exempt." Mr. Watts said that he had spoken with Ken Clow that afternoon, who said he had no idea how many such cases there might be. Mr. Watts said he believes that there are likely none, because any study done within a year or two ago was done against a past standard, such as the 2002 Manual. But, if any such study was done against the standards of this chapter, then what would be the point of doing such a study again? In answer to the question about the number of vested undeveloped lots, Mr. Watts said he did not know. . Regarding the last bullet; Mr. Watts said that in the CAO, there is a general section providing for general performance standards and regulations, i.e. the section 060 standards; following the general 060 staudards, there are separate other standards dealing with specific critical areas. The question here is whether or not the section 110 standards are stand-alone or whether or not they Planning Commission Meeting Minutes of August 24, 2006 Page 5 of 13 . are supplemental. Mr. Watts said that they are sUDDlemental to the 060 standards. Anyone proposing development impacting a wetland critical area must comply with the 060 general standards and the specific standards that are further set forth in section 110. They are cumulative or conjunctive, and do not permit one to pick and choose. In conclusion, Mr. Watts said that he was requesting that the Planning Commission take action on version #2 as presented. He said that in his view, version #2 resolves the BAS challenge that Ms. Dorgan had brought to the Growth Board. It also implements the stipulation agreed to in front of the Board that Ms. Dorgan has raised questions about since entering into that stipulation. He said he would urge the Planning Commission not to make the other changes that Ms. Dorgan requests in her July 27 comment letter, namely to strike the word significant. "That is not required by BAS, not required by GMA, and it was not an issue for the DOE when they commented on version #1 ofthe ordinance and suggested the change from alter to adversely impact. They didn't have a problem with the word significant. And so, in my view, it is not good policy to remove that word; it creates an unattainable standard, and so long as we are meeting BAS, I believe that is where the City should be under GMA. Thank you." Chair Randels thanked Mr. Watts for his presentation. He also verified that the recorder had received copies of all handouts and exhibits before opening the floor to members of the public who wished to speak. Public Testimonv: Nancv Dorgan. Port Townsend. W A . Ms. Dorgan introduced herself, and said that she had not planned to comment tonight, but rather to follow the deliberations, since she had had much input into this already. However, regarding the word significant (as far as adverse impacts to wetlands), she said she would like to remind everyone that the early portions of the CAO state that adverse impacts are to be avoided. ""It doesn't say "significant" adverse impacts are to be avoided. They are to be minimized; and later (it says), they are to be mitigated." She said that part of her concem with the language and how it has been explained is that it could also be a way that we just accept that we are going to put pollution into a wetland, and that is okay, since that is what is done since we are in a city. "And, (it is also about) whether or not Public Works would impose additional conditions on a particular project based on the level of pollution, asMr. Watts described it; hopefully, that is how the language would be used. But I also think it's better not to have the word significant, but to just focus on the fact that wetlands are supposed to be protected from [ inaudible], according to the CAO itself. It's kind of an inconsistency and kind ofa free card there in that language." . She said, "Secondly, regarding my question about the exemptions", referring to page 26 on EXH 4, "exemption number 14 allows the Planning Director to say that a particular development that is outside ofthe critical area could be exempted from the requirements of this title, this chapter." She said that she would remind people of the applicability section in 19.05.030. "This was one of the themes in my July 27 letter; one of the themes in one of those sections was that boasts have been made about how good the revised CAO is, because not only are we just focusing on development projects right inside a critical area, or a critical area buffer directly adjacent to a critical area. Weare also looking to protect critical areas from distant development. That is in "030"; yet the very last exemption negates that. I think it negates it in a sense, because it is saying that those kinds of projects can be exempted. Let's say you had a very large retail development in Upper Sims Way, which has significant amounts of stormwater. Where is that stormwater going to go? It's going to go down a gulley to a marine receiving body of water. Is Planning Commission Meeting Minutes of August 24, 2006 Page 6 of 13 . that distant, is that exempted since it is so far removed from the shoreline? Those are the concerns that I have raised. But I think the language that Mr. Watts has crafted for the second version of the ordinance regarding all development is really an important step forward from what we had last month. Thank you." Since there were no others who wished to speak, Chair Randels closed the Public Testimony portion of the meeting. He asked if staff wished to respond to any points made by the public. Staff Response: Mr. Rick Sepler said that he was speaking from his experience as a SEP A official for a number of jurisdictions in the past. He said that the word "significant" is an important consideration. He said that it had been argued elsewhere that with the word "significant" removed (from similar ordinances) that a person walking by a wetland, and knocking a pebble into the wetland creates an impact. "Arguably it is de minimis, and couldn't possibly have any harmful effect, but it would be an impact, and no one would dispute it. The word significant has been tested in the courts, it is used in SEP A extensively; it is a term of art, and it is to define those impacts that are below a threshold. So, not to dispute the intent, but there is a body of review that addresses significant impact; it is established in SEP A. It has been used as a term in environmental science and is to differentiate those impacts that are so slight as to not create a potential environmental affect. And, certainly we would review very closely any potential impact, regardless of its scale. And in public comment we address each one on point. But we do regulate those significant impacts that would have adverse affect, and we do have standards to adjudicate which ones would be appropriate for that." . Mr. Watts said that he agreed with Mr. Sepler's comments. He added that this phrase, tacked on as an additional requirement, creates an unworkable standard if the word "significant" is removed. He referred to page 2 of EXH 2A, the draft ordinance, where the word significant appears (paragraph number 5). "The development proposal has to meet the 2005 Manual. This additional phrase gives the City another tool, or another standard, if you will, that even if you have met the 2005 Manual, the City is determining, based upon whatever other evidence we have, that there is significant adverse impact notwithstanding the developer having met the 2005 Manual. This gives the City an additional policy/regulatory basis to impose additional mitigation. It is not a stand alone get out of jail free card. Even if the developer says that based on his "science" there is no adverse impact, he still needs to meet the 2005 Manual, and the City can impose additional mitigation if it believes there is still adverse impact. "On paragraph 14, page 26, this also says that development that is occurring outside a critical area may have to meet requirements of the CAO if the City can demonstrate that the project has a significant impact on a wetland. In the hypothetical commercial development that Ms. Dorgan talked about, if the City or a third party can show that there are impacts from a development that are significantly adversely affecting a wetland, then there is a basis in the CAO for staffto impose additional mitigation. "The last comment is: because the standard in the CAO to use the 2005 Manual now parallels the General Development regulation that the 2005 Manual is used whether or not you are inside or outside a critical area, there is no inconsistency. All projects must meet the 2005 Manual, but paragraph 14 and the other paragraph previously mentioned say that if we can still demonstrate a significant impact, then we have the regulatory authority to impose additional mitigation." . Chair Randels thanked staff for their responses and moved to Planning Commission questions for the public or staff. Planning Commission Meeting Minutes of August 24, 2006 Page 7 of 13 . Planning Commission Ouestions: Ms. Capron said that she was pleased to know that, as Mr. Sepler had stated, the term significant is a legally tested term of art. She said that if the term were dropped, she believed that every project would come to a halt, and, she imagined, doing pretty much nothing [there being no development] at all. She said, "You could also ask the question of who decides what is significant, so there is a little danger there, but there is more danger to take it out." Chair Randels reminded that this period should be used for questions, and Planning Commission deliberations would take place after that portion of the meeting. . Ms. Slabaugh asked Mr. Watts for clarification on the overall approval process and the anticipated action of the Growth Board, assuming that the Planning Commission recommendation and City Council adoption of version #2 occurs shortly. Mr. Watts said that he did not know with certainty, but that when he and Ms. Dorgan appeared before the Board in June, they had told the Board that if the City Council adopts the three or four language changes proposed at that time, that would resolve the BAS argument in Ms. Dorgan's challenge. He added that since that time, Ms. Dorgan had requested this additional explicit requirement that the 2005 Manual apply to development in critical areas, i.e. the issue addressed by version #2. Therefore, in his view, the Board will say that this implements the stipulation, and will allow the Board to say that the City has incorporated BAS into the CAO. He said that Ms. Dorgan has filed papers with the Board seeking to withdraw the stipulation, and that he believed the Board had said they are not going to consider that. He said that perhaps Ms. Dorgan could verify or add to that, and Chair Randels asked Ms. Dorgan if she wished to comment. Ms. Dorgan said that if any areas of the CAO are amended, the Board will not issue any kind of a ruling on the previous version because it would be irrelevant and moot. However, if Ms. Dorgan or any third party then files a second appeal, related to the amended version, the Board would expedite it. She stated that the Board had said they would not otherwise rule on what had been amended. Ms. Dorgan stressed that the Board is interested in seeing the parties move toward agreement, and will not rule if they detennine that the City has passed amendments in response to the appeal. Mr. Watts said he agreed with Ms. Dorgan's comments, but that, in his view, the Board did hear the stipulation that was presented to them at the hearing that if these changes were made that would resolve the BAS issue. He said he did not know for certain that they would dismiss it as moot or whether they would rule or conclude the process in some other way. Mr. Sepler stated, "After this action has been taken by the City Council, anyone can appeal it." Nancy (Dorgan) can appeal it, or someone else can choose to appeal it; there is no guarantee that this would not be appealed. So, even if it moves to settlement for whatever issues are remaining, it doesn't exempt some subsequent action by Nancy (Dorgan) or another individual because you are amending an ordinance. Mr. Watts said, "My comment is that with the version #2 amendments, the City is in the best position to say that we have incorporated the BAS requirement into the CAO." . Mr. Randels said that he had two clarification questions. First, is the CAO only enforceable by the City and its agents? Or, is there a way a third party can seek to enforce it? He cited the example of the City taking action X with regard to a development, and a third party contending that the City should have done Y. Mr. Watts said that the third party may file an administrative appeal or a Land Use Petition Act challenge in Superior Court. Planning Commission Meeting Minutes of August 24, 2006 Page 8 of 13 . Mr. Randels: "Secondly, in the exemption portion of paragraph 14, is it correct that anything that falls into the purview of paragraph 14 must, notwithstanding anything else, meet the standards of the Stormwater Manual?" Mr. Watts said, "Yes, by virtue of chapter 13.32, where it says that all development in the City must meet...". Mr. Randels added, "Plus, in this preamble, and in B on page 24, it talks about the necessity to meet the Engineering Design standards which now incorporate the Stormwater Manual, correct?" Mr. Watts said that was correct. Ms. Slabaugh said she wished to follow up on that question. She pointed out that, in her understanding from previous testimony, Mr. Watts and Ms. Dorgan's interpretations of paragraph 14 were essentially opposite, with Mr. Watts considering it to be an additional tool for the City to deal with threats to critical areas from outside critical areas, and Ms. Dorgan considering it to be a tool or a possible way around full compliance for a potential developer. Ms. Dorgan responded that B.14 falls within a section ofthe code entitled Exemptions, and asked why, ifit was intended to serve as an additional tool for the protecting critical areas, does it appear under exemptions. She said that it is buried at the end of 19.05.040, and seems to stand counter to 19.05.030. Mr. Ray then asked whether line 3 of paragraph B on page 24 should be changed to include paragraph 14, as follows: ".. . however that for subsections (2) through (J 4) ofthis section, the activities shall be conducted in a manner consistent with the best management practices_.." Mr. Watts said that he would be in favor of accepting that change, with the understanding that if, upon further review, a problem did arise, it could be dealt with at City Council. Hearing no other questions, Chair Randels moved to the next phase of the hearing. . Planning Commission Deliberation: To convey his opinion about the term "significant" in the above, Mr. Lizut sketched a generic Cost/ Benefit diagram on the board. He said that the graph represents a typical situation, where a true situation or goal is misunderstood until well after the fact, since all the parameters are often impossible to identify in advance. He said the problem is further complicated by the fact that the function is semi-logarithmic. He said he was having considerable difficulty differentiating between form and substance (in this meeting), and that he would like to discuss a (relevant) concept with the group. He referred to his experience with the Department of Energy as Managing Director for the Yucca Mountain Repository for Nuclear Waste. He used the term ALRA "As Low As Reasonably Achievable", and pointing to the knee of the curve in the graph, indicated that that point on the graph was what his multi-disciplinary team had been looking for. He recalled an instance in which he had succeeded in deleting certain safety requirements for a project on the basis that the applicability and risk was so absurdly low compared to the cost and effort to include them. He went on to say that he truly did not understand the nuances of certain words that were being debated with regard to the CAO, but that he cautioned against going "beyond the knee" in "guessing" how far regulations and requirements should be taken to best protect the environment. . Ms. Thayer suggested that if item 14 should not be in the Exemptions as Ms. Dorgan had noted, then perhaps that item should be moved to another section in the body of the ordinance. Mr. Randels responded that while he agreed that the format is inartful, it does not mean that Mr. Watts' interpretation is incorrect. He said that he recalled that this issue had been recognized and discussed by the Planning Commission in dealing with the CAO update last year. The whole concept of exemptions was one that the Commission had struggled to fully comprehend and, in retrospect, seems as if they might have done well to insist on different, clearer wording. He said that the current wording is not necessarily wrong and he did not wish to significantly amend the Planning Commission Meeting Minutes of August 24, 2006 Page 9 of 13 . draft ordinance, other than changing the range from 2 to 14, instead of 2 to 13, as discussed earlier. Ms. Thayer stated that she did not suggest taking out all of the exemptions. Mr. Randels said that he understood that she had been referring to number 14. He said he would rather leave it in place for the time being, act on the recommendation, and take up a more extensive rewrite later on, with input from Eric (Toews -- original author), city staff and DOE. Mr. Watts suggested that the Commission, if version #2 is adopted, could as part or as a separate motion, request staff to investigate whether or not item 14 should stay where it is or be reformatted. Mr. Randels noted that, in that case, other portions of the Exemptions section should also be reviewed. Ms. Slabaugh then asked for clarification that item 14 was part of the revisions constituting version #2. Chair Randels and others responded that no, item 14 had been adopted last year, and the error noted by Mr. Ray earlier was in the ordinance already adopted. Mr. Ray voiced his opinion that the Commission, in keeping with Mr. Watts' advice, should move forward, but also look at the Exemptions with the intention of tightening up, consolidating, and/or eliminating redundancies. He said that he felt strongly that the word significant was a tool, allowing staff to move forward in some situations where a process might otherwise be ground to a halt. . Ms. Thayer moved t/tat the Planning Commission recommend to the City Council approval of version #2, as presented by City Attorney, John Watts, and incorporating the correction to Section B changing "(2) to (13)" to "(2) to (14)". There was a brief discussion as to whether or not an expansion of this motion or a separate motion would be appropriate to address review of the Exemptions section and its location within the ordinance. The motion was seconded by Mr. Lizut. Ms. Thayer called for the question. Ms. Slabaugh said that before that, she would like to add that she supports the motion because she appreciates Nancy Dorgan's intention to protect the critical areas to the utmost of what is possible. She said that she shares that. But she also recognizes that we are a litigious society and are constantly seeking documentation that places us in the position to win a legal battle in the future. However, we also have to recognize the human element, our staff, to make determinations that are based on the intent if they are given the power to do so. All were in favor of calling the question. The motion passed unanimously, 7/0/0. AIr. Randels then moved that the Commission request staff to review the Exemptions section and make recommendations to the Planning Commission as to whether or not any or aft of this section should be located elsewhere in the ordinance, or otherwise revised, consolidated or amended to improve phraseology or substance. The motion was seconded by Mr. Ray. Mr. Watts asked for clarification as to whether staff should bring their recommendations directly back to the Planning Commission or to the City Council. Mr. Randels said that his intention was that recommendations should be made to the Planning Commission. The motion was unanimously approved, 7/0/0. Mr. Rande1s stated that the public hearing on the CAO Amendment was concluded. VII. New Business A. Proposed Interim Ordinance Overview (Rick Sepler, Planning Director) Chair Randels announced that next Mr. Sepler would brief the Planning Commission on the proposed Interim Ordinance, which would be followed by a review of the upcoming schedule. . Mr. Sepler said that City Council had, at their last meeting, considered an Interim Ordinance that would affect portions of the code, based on recommendations developed by staff in response to Planning Commission Meeting Minutes of August 24, 2006 Page 10 of 13 . issues that had arisen over time. This consolidated ordinance would establish an interim standard for each of the issues. At the hearing, the number of Councilors required to adopt it in one reading was lacking and it will be revisited on September 5. Therefore, this briefing would cover (I) the content of the Ordinance, with the understanding that it may be altered prior to adoption, and (2) a tentative schedule including potential involvement of the Planning Commission. . Mr. Sepler referred to the packet (EXH. 5) and identified the issues below; numbering is based on the table of Proposed Interim Standards: 2.0 ClarifY the zoning densities in R-lII and R-IV zoning districts. The currently used mixed system that factors in bedrooms and dwelling units is fairly cumbersome. The proposal is to use bedrooms for multi-family units, and dwelling units might be a better measure for single family residences. 3.0 Establish a new methodfor measuring building height. Current code allows a 40 foot maximum, depending on the slope, and also permits mounding or filling in to raise the base. Options include adoption ofIBC definition and/or a hybrid definition with the intention of limiting site alteration and reducing the additional height allowed on slopes. 4.0 Require offstreet parkingfor AD Us. In certain areas, the development of ADUs has led to filling in of drainage ditches to accommodate cars. Options are to require the one off-street parking space per new ADU, the interim standard, or to develop criteria for when off-street parking would be required. 5.0 ADU development as an accessory use to single family, attached development. This use is not clearly addressed in PTMC Title 17, but has the potential to increase overall density and vehicular traffic and to adversely impact the scale and character of existing residential districts. The proposal is to prohibit ADUs to single family, attached housing, in the Interim, and evaluate that as a permanent policy. Mr. Sepler said that the original intention of the code was to not exceed the multi-family density level. 6.0 Establish a uniform methodfor counting days in the PTMC This is a housekeeping item that would provide consistency in detennining the number of days and end date for various land use application, notice, review and appeal processes. 7.0 Establish interim standards jbr required ofFstreet parking in the Uptown Commercial District. The intention is to address potential parking impacts associated with new residential development in the commercial portions of Uptown. Mr. Sepler briefly explained the background of having abolished the off-street parking requirement, and planned a Benefit district, which has not yet been initiated. He said that one of the unintended consequences of reducing the parking requirement was to remove the most prominent limiter of building size; the 50 foot envelope can be fully built out. Also, there is no linkage to a community -wide scheme for multi-modal access, transportation and parking. This would establish an interim standard. An Uptown Charette is tentatively scheduled for October 24, 2006. Mr. Sepler referred next to the draft ordinance, number 2928, in the packet (EXH 6). The strikeouts represent the portions of the draft ordinance related to building height that City Council voted to exclude at this time. The Planning Commission is invited to review the draft ordinance, but has not yet been requested to take any action on it by City Council. B. Revised Schedule (Rick Sepler, Planning Director) . Mr. Sepler referred Commissioners to the last item in the packet, the Planning Commission segment of the schedule of Fall Planning Processes. He said that the schedule had been approved by the City Council on August 21. He referred to the composite schedule of the three major processes. He noted that that two other processes have not yet been merged in, largely because the dates haven't been set by Council. One is the Water Plan, which will need to go through Planning Commission Meeting Minutes of August 24, 2006 Page 1 I of 13 . SEP A and through public hearings. The second is the Transportation Plan, where there is a delay with some of the land use assumptions and calculations. Mr. Lizut said that he had not been given any information on the Sign Committee schedule or process. Mr. Sepler said that the CDLU committee had met on August 22, and that seven ofthe nine positions had been filled. He said the CDLU members had taken on the task of phoning potential members to recruit for the two positions. He said that the group of applications will then be taken back to the full Council for formal appointment of the body. Regarding the composite schedule, Mr. Sepler identified the three processes as Streetscape, Upper Sims and Uptown. During this discussion, it was realized that the packets did not contain the entire composite schedule, but only the Planning Commission excerpt. Mr. Sepler promised to send out the entire schedule via e-mail. Mr. Sepler walked through the Planning Commission schedule, noting that the bold typeface indicated that the item (Interim Ordinance) is tentative until City Council takes action. He noted that he and Mr. Yarberry had beb'Un work on the Tourist Homes and Transient Accommodations; an update is scheduled for September 14 but a full workshop will follow in October. . Upper Sims - There is a public workshop on September 12, and a Council update on September 18 for the consultant to describe the approach they will take on the project; the Planning Commission is invited. An Upper Sims debrief will be on the Planning Commission agenda for September 28. Not shown on the excerpt schedule is the October 10 second workshop for the public. The regular November 23 meeting is cancelled because of Thanksgiving, but there will be a special Planning Commission meeting on November 30 on Teardowns. There are no Planning Commission meetings scheduled for December, but the Planning Commission is invited to the Council Update on Upper Sims on December 14. And, if there is need, December 7 would be a preferred date for a special meeting or to handle any slippage in the schedule. The January 25 regular meeting is cancelled due to the Joint special meeting for the Upper Sims Plan Presentation on January 23, 2007 Chair Randels reminded that the Uptown Charette is scheduled for October 24, and he would encourage as many Planning Commission members as possible to attend. Location is pending, but may be held at the Community Center. Mr. Sepler said that as soon as more is known about the Interim Ordinance and other projects, he will bring that to the Commission's attention. Mr. Emery asked for clarification on the September 12 meeting and Mr. Sepler explained that it is a public meeting to be held at the Grant School. . VIII. COMMUNICATIONS: None Planning Commission Meeting Minutes of August 24, 2006 Page 12 of 13 . IX. ADJOURNMENT Ms. Thayer moved that the meeting be adjourned. Mr. Ray seconded, and all were in favor. Chair Randels adjourned the meeting at 8:45 PM. // .--~.- / C ~"///// George Rand '7:/,r7, // ~ '----~-; / . ~' c~~'_ aIr ,~ d,W~L Gail Bernhard, Recorder . . Planning Commission Meeting Minutes of August 24, 2006 Page 13 of 13