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HomeMy WebLinkAbout022405 Minutes . . . CITY OF PORT TOWNSEND PLANNING COMMISSION MINUTES February 24, 2005 I. CALL TO ORDER Chair George Randels called the meeting to order at 7 :00 p.m. in the Cedar Room of the Waterman & Katz Building. II. ROLL CALL Other members answering roll were Alice King, Liesl Slabaugh, Steve Emery and Roger Lizut; Cindy Thayer, Lyn Hersey, JeffKelety and Harriet Capron were excused. Also present were Consultant Eric Toews, Cascadia Community Planning Services, and Department of Community Development Director Jeff Randall. II. ACCEPTANCE OF AGENDA Ms. Slabaugb made a motion to accept the agenda; Mr. Emery seconded. All were in favor. IV. APPROVAL OF MINUTES -- There were none V. NEW BUSINESS -- Work/Study Session Proposed Revisions to Chapter 19.05 PTMC, EnvironmentaUy Sensitive Areas 1. Mr. Toews gave a summary review of key recommended amendments and their rationales. He showed and discussed the following overheads: WHY UPDATE THE CITY ESA ORDINANCE? Other than being statutorily required under the Growth Management Act (GMA), they are updating the City's ESA ordinance in an attempt to better protect the environment, lives, and property of its citizens; to reduce future potential cleanup and restoration costs; and to make the code a bit clearer and easier to fairly administer. REOUIRED AS 7-YEAR PLAN AND CODE UPDATE The central purpose for undertaking this statutorily is to meet best available science (BAS) requirements of the GMA (RCW 36.70A.172). However, GMA under RCW 36.70A.040 requires aU jurisdictions to adopt policies and regulations that designate and protect critical areas; i.e., wetlands, critical aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas and geologically hazardous areas. The Act does not set forth specific state or regional standards for protection of these areas, but instead requires local governments to designate and protect them througb Plan policies and implementing regulations. The statute was amended mid-90s to include 36.70A.I72 raised the standard for the contents of Critical Area regulations, and requires them to include Best Available Science in designating and regulating these areas. Mr. Toews' gave his concept ofBSA: research conducted by qualified individuals using documented methodologies that lead to verifiable results and conclusions. He noted that is not a definition that yields an answer as to what BAS constitutes in any given situation, but a continuum of what represents BAS. Port Townsend needs to ensure that what is in its code is consistent with and factors that scientific information. BAS COMPLIANCE. CHALLENGES AND PRACTICAL CONSIDERATIONS There is no single clear set of regulations constituting BAS throughout the State. They are trying to fit within the bookends. Because of geophysical variations througbout the State, what constitutes, for instance, an acceptable buffer for a marine bluff in one area that has a particular type of soils and geology, is going to be different than it is in another locale. There is a difference as to what constitutes the best approach in any given locality to protect critical area functions and values. This is an unfunded mandate; the City lacked the fmancial resources and tried to develop science-based recommendations that are uniquely tailored to our jurisdiction. Our strategy has been to review and borrow from the work of other larger jurisdictions, and, more importantly, recommendations of state agencies that Planning Commission Minutes, FebruMy 24,2005/ Page 1 . . . are developed in consideration of BAS. PROPOSED AMENDMENTS: KEY CHANGES "Qualified professional" 19.05.020(45): defmition has been substantially modified to beef up requirements for geohazardous areas and require a licensed engineering geologist as specified in RCW 18.220. The current defmition is fairly loose, particularly relating to individuals qualified to prepare wetland reports and geotechnical reports. References deleted throughout to the 1989 Federal Manual for IdentifYing and Delineating Jurisdictonal Wetlands. Now references the Washington State Wetland Identification and Delineation Manual, WAC 173-32- 090. Applicability (19.05.030(C)): code clarified to extend to development only, impacts ESAs and ESA buffers, regardless whether or not an ESA permit is specifically required. Instances may exist where the City doesn't necessarily have a specific permit to issue, but activity could be going on that would negatively impact functions and values of a critical area. In those instances the substantive protection standards of the code would apply, and the City would be able to go in and work with someone, e.g. a developer, to try to mitigate what they were doing consistent with the substantive code requirements. Ms. Slabaugb asked for an example. Mr. Toews could not give one without looking at the specific language of the code. He stated they have very consciously tried to make "developmenf' relate to the specific permit applications the City has to issue; there are some instances where some limited clearing activity migbt fall under the thresholds that would trigger issuance of a City permit. Mr. Randall suggested: fence construction; utilities; trails; vegetation removal. etc. Chair Randels proposed another way of putting it: "If someone finds a loophole, this catches it anyway." Mr. Toews agreed, stating that it attempts to catch it; it is only good if the City is apprised of the activity. To that extent, it works something like the zoning code-- uses identified as permitted, conditional, and prohibited within the zoning use table, but establishment of a use of a structure doesn't necessarily trigger issuance of a City permit. If the City finds out there is a use occurring in a zone where it is not permissible, there would be the ability to go in and force the terms of the code. Certain exemptions and loopholes are proposed to be eliminated in the draft (19.05.040(B)(I)(c). New accessory structures within environmentally sensitive areas and their buffers regardless of size would be regulated. Currently there is an exemption for accessory slrnctures less than 250 s.f. Closed exemption (currently exempt under the code) for small, isolated Category III and IV wetlands -- in particular, Category III wetlands 5,000 s.f. and smaller, and Category IV wetlands 10,000 s.f. and smaller. Jurisdiction of the code has been extended. Currently, the code specifically exempts activities occurring waterward of the ordinaryhigb water mark (OHWM) from application of the code. At least until December 1, 2005, when the City's Shoreline Master Program (SMP) is updated, the ESA Ordinance seeks to extend jurisdiction within that area. Reasonabie use exception criteria have been made significantly more stringent. Criteria currently in the code are almost unrelated to unconstitutional taking of private property without just compensation. The reasonable use exception (19.05.050.(0)(3)) is an escape valve intended to relate more specifically to that unconstitutional issue and to prevention. Fish and wildlife habitat conservation areas - substantive protection standards have been strengthened, in particular for terrestrial and marine habitats. Includes new protection language for impervious surface coverage limits and vegetation retention standards (19.05.080.(E) & (F)). Geologically hazardous areas (examples to be discussed later). Provisions substantially increased-- establish buffer management zone; recommendations of a geotech report prepared by a licensed engineering geologist would conlrnl setting appropriate buffer widths (19.05.100(0)(2)(1). Are not now consistent with what they believe are the standards of available science, having the ability to go down essentially to 25 feet ahnost without regard to the specific geology and soils of a particular site, and the heigbt of a marine bluff. Ecology wetland rating system for Western Washington included as the basis for categorizing wetlands (19.05.ll0(B)(3)). Ecology wetland buffer alternative 3 and compensatory mitigation requirements and ratios have been included (19.05.llO(E) & (F). 2. Review of major themes of comment received thus far; RECOMMENDED CHANGES BASED UPON PEER REVIEW Mr. Toews expressed appreciation for feedback received, particularly from professionals who are not being compensated for their time. He thougbt some people would not comment until the proposal is a little further complete or not at all. Those most responsive have been State agencies, e.g., John CampbeU ofPuget Sound Action Planning Commission Minutes; February 24, 2005 / Page 2 . Team; Department of Ecology; and initial feedback from Fish & Wildlife. Staffhas commented as well as the consultant team working on the SMP. He went throngb the January 13,2005, draft pointing out where suggestions were made: Berrvman & Henif!'ar recommendations: 19.05.050(0) Criteria for granting reasonable use exception (Berryman & Henigar) Paul Ingrahm, Shoreline consultants Berryman & Henigar, suggested that criteria (I) and (g) be eliminated because they are unrelated to the avoidance of a constitutional takings situation. Messrs. Towes and Randall felt elimination of the criteria migbt go a bit farther than they care to. Criterion ill -- "The proposal will result in no net loss of critical area functions and values consistent with the best available science;" may go a little bit far given they are trying to avoid an unconstitutional takings. Mr. Toews suggested they can modifY the language to say something like, "The proposal will avoid net loss of critical area functions and values to the extent practicable consistent with the best available science (BAS)." They don't want to let people off the hook entirely. He noted tension between BAS, protecting functions and values, and not taking private property without just compensation. Chair Randels pointed out the statement on the previous page that these should only occur "when all of the following fmdings can be made;" He indicated that (I), Page 26, should conclude with "and" rather than "or". Mr. Toews concurred. Criterion J.g} - Mr. Toews stated this is quite standard language througbout the City's municipal code. Consistency with other applicable regulations and standards would be assumed, regardless of whether or not they are in a reasonable use situation. They propose to retain (g) and modify (I). . 19.05.080(E)Performance Standards for Terrestrial Habitats and Species (Berryman & Henigar) These Fish and Wildlife areas were touched on 2 weeks ago. Lot coverage and impervious surface limitations set forth as currently written wonld pertain to both areas within the Shoreline jurisdiction as well as upland areas. Paul Ingralnn suggests that while they differentiate and have a different and lower standard for areas outside the Shoreline jurisdiction, obviously within the Shoreline jurisdiction no net loss of functions and values is required under the SMA. Mr. Toews thougbt that a reasonable suggestion, and they are going to try to include it in the public hearing draft. 19.05.080(F) Performance Standards for Marine Habitats and Species (Berryman & Henigar) Language as currently drafted in (E) and (F) would purport to require compliance with DFW recommended buffers in aU instances. They want to pay careful consideration to DFW recommendations, and wherever possible fold those into habitat management plans. In some instances, particularly in an urban context, those buffer recommendations are impossible, e.g., a greater than 600 foot radius around a heron nesting site. When you have an undeveloped infilllot, 50 x 100, there is no way you can abide by those buffer width recommendstions that permit development to proceed. They are going to try to strike a balance and include language that makes it clear that wherever possible they are going to use those buffer width recommendations, but recognize the vagaries of applying them within an urban context. 19.05.100(D)(2)(f) Additional standards for marine bluffs and slopes subject to landslide and erosion hazards (Berryman & Henigar) (Rather analogous to one previous with regard to lot coverage and impervious surface limits.) To make clear that the buffer requirements for marine bluffs within the Shoreline jurisdiction are different from those on upland landslide and erosion hazard areas on slopes 40 percent and greater. A sligbtly lower standard will be applied in those upland areas outside the Shoreline jurisdiction. . Denartment ofEcolo~ recommendations. Donna Bunton 1& Gretchen Lux: 19.05.110 Product of discussions regarding closing the exemption on Category III & IV wetlands and concerns Staff had for the potential of that leading to all sorts of unfortunate regulatory situations where the City is seen to be over- reaching in regulating extremely small isolated wetlands of questionable value. Staff is trying to find a way to protect fUnctions and values, and, candidly, not make the regulation appear ludicrous. 1) Outril!ht exernntion for CateQorv III & IV under 1.000 s.f., provided they are not part of a broader wetland mosaic and not associated with priority habitats and species. (DOE also forwarded to the City of Olympia which is Planning Commission Minutes, February 24,2005/ Page 3 . . . either folding into their code or contemplating). Q Mr. Randels: What is priority habitat or species? A Mr. Toews: Areas that have an association with a particular species that are on the DFW priority habitats and species data base list; areas in Port Townsend known to have those associations (.080). Q Mr. Randels: Broader than endangered species, but not everything. A Mr. Toews: Concurred. Mr. Randall: quoted from .080.C, "Bald eagles; Great blue herons; Brandt and harlequin feeding areas; Waterfowl concentrations at Kith Tai Lagoon; Waterfowl wintering area at golf course pond;" and also allows for others that may become known. Q Mr. Randels: So the heron gets back on our radar screen this way? A Mr. Randall: It is still on our radar screen. Mr. Toews was saying the recommended 600 ft buffer. Q Mr. Randels: This is the second one where it is on a small wetland. The buffer is already exempted. 2) Exemoted from the reouirement to "avoid" provided impacts are fully mitigated. Not an outrigbt exemption for Category III & IV wetlands (1,000 - 4,000 s.f.), but an exception to mitigation sequencing. (An exemption to the mitigation sequencing rather than an exemption to regulating the wetland, per se.) Normally, one would be required to avoid the impact where possible. In this proposal, if the wetland was within these size limitations; not part of a wetland mosaic; not associated with priority habitats and species; they would be exempted from the requirement to avoid, provided impacts were fully mitigated. 3) Nonconformity. Where yon have a buffer that extends into a partially developed area that is largely platted, and in a situation where you have a lot that may lie wholly within a buffer, undeveloped and lying landward of a lot that has existing structural development, the development on that intervening lot effectively reduces the function and value of the portion of the wetland buffer that lies behind it and landward. In certain instances Staff thinks it migbt be reasonable to exempt development, landward. Chair Randels suggested it migbt be unreasonable to not to. Mr. Toews concurred. Mr. Toews said that the same holds for intervening roadways, where you have a road that was established decades ago, before the advent of any kind of meaningful wetland regulation, cutting througb the wetland and effectively cutting off an area from providing meaningful function and value to the wetland. It seems unreasonable not to exempt that from the buffer requirements. Mr. Toews emphasized that with all of these, they are going to have to be really careful not to allow any development that increases the degree of nonconformity, or that diminishes wetland functions and values they know exist. Puget Sound Action Team recommendations: 19.05.080. .!l/& Q (Also Staff comments) Expand designation of fish and wildlife habitat areas that identifY what is to be designated and regulated for protection to include kelp and eelgrass beds; sand and surf smelt spawning areas; shell fish beds; commercial and recreational sheU fish harvest areas. Puget Sound Action Team comments specifically to sandland spawning areas; staff comments to broader areas needing protection. I:! Performance standards pertaining to all development within Fish and Wildlife conservation areas -- include reference to DFW aquatic habitat guidelines as a partial basis for developing the management plans for developments within designated habitat areas. 080. Reference appropriate documents; make clear they are using the 2001 Stormwater manual as the basis for mitigating stormwater impacts within Fish and Wildlife habitat areas and employing the low impact development manual of the action team, as well as aquatic habitat guidelines. 3. Review of recommended additional changes; Staff comments and recommendations: 19.05.030 & 19.05.040. (Outlines applicability of the code; what is exempt from the code; situations warranting waivers from the code; how non-conforming development is treated under the code.) ClarifY, and simplify, to the extent possible: . Activities requiring an ESA permit . Exceptions and waivers . Non-Conforming structures and uses Q Mr. Randels: Will this be coming back in substantially revised form? A Mr. Toews:.H will be coming back in revised form. Planning Commission Minutes, February 24, 2005 / Page 4 . . . Mr. Randall: You will be receiving a hearing draft early next week which will attempt to incorporate peer review comments and as many Staff comments as Mr. Toews has time for. We will work with that version, and before the public hearing process is over, we will probably be more specific and either present line-in/line-out additional suggestions before the public testimony is closed or somehow get it into the record. There will probably be additional edits that will need to be made as additional peer review is received, and more Staff edits, giving a revised version that is not changing day-by-day as they proceed. Mr. Toews summarized that the Commission will receive a public hearing draft incorporating the changes reviewed, and clarification of .030 and .040. They will continue tonigbt by going through a couple of substantive changes of the code and look at how the code would apply as drafted to these situations giving them a common level of understanding; and, also get some feedback if they have particular issues, concerns, questions, suggested modifications. Mr. Randall introduced Mr. John Carnbalik, Puget Sound Action Team, who is involved in the City's Shoreline Master Program update and had early expressed interest in being involved with this process. Staff had requested his patience as they worked througb this ordinance, that it was supposed to be completed in December. Mr. Carnbalik explained he is the local liaison for the Puget Sound Action Team partnership, essentially Staff to that partnership which involves all of the State and Federal agencies, Tribes, local governments and other representatives. They work to try to implement the Puget Sound Management Plan; one way is throngb good critical areas ordinances. He believed that in being able to comment early as possible on this first draft, it is a lot more helpful; when it goes to Council it is a little bit late. He and other State agencies are trying to get involved as much as they can; they have made formal and informal comments in a variety of jurisdictions in the three counties he covers: Clallam, Kitsap and Jefferson. He congratnlated the Planning Commission, Staff, Mr. Toews, and other contractors working on this version. He thougbt it has a lot of really good, substantive items that really protect the Puget Sound's biological health and diversity. He had submitted a long list of comments, some of which were incorporated, the others they will talk about. Mr. Randall clarified formal written comments they are receiving will be part of the record with the public hearing document. Mr. Cambalik indicated his comments were informal; they did not come from their director, but were his comments and he questioned a couple of items the Shoreline Master Planning contractor suggested. He stated he is available to help and will participate where he can. Mr. Carnbalik referenced The State of the Sound ReDort (Staff has a copy). It is their report to the legislature and the citizens of Washington on how they are doing in trying to protect and restore biological health and diversity of the Puget Sound basin and all its watersheds. He also later distributed an Overview summary; everything is downloadable on their website. He referred to and later distributed The Low ImDact Technical Guidance Manual just released, the only low impact manual in this State, perhaps on the West Coast. He said it is extremely well written and very helpful and includes sections he mentioned in his recommendations that address higb density development in urban growth areas, like Port Townsend. He indicated there are some suggestions they may want to consider including in their CAO. 4. Case studies -- how the proposed amended code would be applied; Mr. Randall discussed drawing illustrations: Mana~ement Zone in bluff situations, e.g., Shorelines bluff; non-shoreline critical steep slope bluff over 40%. Management zone depths for different bluff heigbts. Doesn't apply to shoreline bluffs less than 10 fl. Low-bank properties don't have a management zone; minimum setback is same as minimum shoreline setback, currently 25 fl. from ordinary high water mark. Under the New Rule -- no management zone, bank heigbt less than 10 fl. On a bank of 10 fl or less, risks to shoreline processes, life and property are so minirnaI there is no need for a management zone. Q Mr. Emery: There are exceptions. A Mr. Toews: There are no exceptions currently under the code. Mr. Randall clarified this includes layers of regulations. We are not saying there are no rules; it is relating to the setback of the proposed structure to be bnilt, or that would apply to an existing structure if you want to do an addition. Mr. Toews indicated that more specifically they are talking about situations where the slope is 40% or greater, and bank height over lOft. Planning Colmnission Minutes, February 24,2005/ Page 5 . . . Perhaps greater than 40%, but 8 feet -- it doesn't matter. Bluff 25 feet; management zone is the minimum 50 feet (not the setback). The area where you would have to hire a licensed engineering geologist to prepare a geo-technical report to determine. Q Mr. Randels: Any bluff between 10 and 50 feet would trigger this 50 foot management zone? A Mr. Randall: Correct. There are different scenarios: a platted lot without a house, with a house, un-subdivided lot -- basically, if you want to build in that management zone, you are into geo-tech reports subject to the criteria, habitat management plans subject to the criteria. rfyou are beyond the management zone, you don't have to do those things. Q Mr. Randels: The map triggers something from a previous meeting -- "stupid as your neigbhor". The consensus was there would be instances where that might make sense. He asked if that made it into the draft. A Mr. RandaU: II is not written that way; there can potentially, depending on how the geo-tech report and the habitat management plan turns out; how good your soils are; how stable the bluff is. Mr. Toews explained that ifyourneigbbors have setback 25 feet by a 100 foot marine bluff and the geo- tech on your infilllot concludes that is insufficient and you need a greater setback, you can't be as "stupid as your neigbbors" . Q Mr. Randels: But if your tech decides. . . A Mr. Toews: If the tech decides the geology and soils suggest that a buffer on down to as little as yourneigbbor's is in fact supportable - the geo-tech report has to be prepared, ". . . based upon the best available science, existing and proposed uses, risks of slope failure, and coastal erosion rates." The geo-tech is being asked to put a stamp on something that is a little more than guess work. Q Mr. Randels: And to certify the likelihood it will last more than 75 years (if that is the correct number.) A Mr. Toews: II is 40 years in the draft; we talked last time about 75. If the soils and geology support a lower setback, you can be as adventurous as your neigbbors. Mr. Toews stated that once you are over 10 feet, the minimum width of the management zone is 50 feet, but also can extend farther landward depending on the vertical heigbt of the marine bluff, up to a distance of 100 feet. If you have a 125-foot tall bluff, you are still talking about a 100-foot management zone. Q Mr. Randels: Ifbetween 15 - 100 feet, it is the same as? A Mr. Randall, "added bluffheigbt; 75 feet." Variable Denths on ManaQement Zones: 19.05.100 Buffers and Setbacks: Mr. Toews read an excerpt from (E)(1) "Within the ml'lmlJ7~m~nt zone estahlished for marine hluff{,{ and slones subject to lann~lide and erosion hazards under PTMC 1 Q 05 1 nOm) the buffer width shan he established hvan annroved p."eotechnical renort nrenared hv an em1ineerinp penlnl1ist with a WashinP"ton snecialtv license in enQineerinft J7f>..olopv The renort shaH he ha!':ed unon the best availahle science existing and nrono~d u~s risks of slone failure and coastal erosion rates Subsection E begins to call out different development situations, e.g., New Subdivision. Mr. Randall pointed to a drawing: suggesting it as 5 acres. Mr. Towes stated that in new subdivisions, the minimum buffer is 50 feet from the edge of all marine bluflS. Currently, it is written, slopes subject to landslide and erosion hazards, 40% slopes and greater, even if they are outside the Shoreline jurisdiction, landward. He quoted. from E.2 ".. . nrovided that a reduction in the huffer width eaual to a dishme;e that is the he11!ht of the s.lone mav he nennitted when the p"eotechnlcal renort concludes. that doing s.o will not result 1" an increa."ed "s.k to neonIe or nronertv or 1mnacts to environmental nroces.s.es. Q Mr. Randels: That would apply only when the slope is less than 50 feet? A Mr. Toews: Correct. Mr. Toews also indicated the '"Coastal erosion rates" makes reference to the 40 year or longer period and asked if they talked about substituting that with 75 years. Q Mr. Randels also recaUed that, and asked if that was limited to coastal? Is it correct this sentence only deals with coastal erosion rates, not with upland slopes? A Mr. Toews replied that was correct for this sentence. Q Mr. Randels: Why would we have a 40 year, 75, or any year, limitation for shoreline situations, but not for upland? A Mr. Toews: II is a little bit different situation, particularly with a marine lot where there is wave action at the toe of the slope. Q Mr. Randels: But that would be just another factor that he would take in when doing his scientific analysis. Plamiing Commission Minutes, February 24, 2005 / Page 6 . . . A Mr. Toews: It is a fair point. Q Mr. Emery: He sees a lot of inland houses washing away in California rigbt now. They are on steep slopes. Mr. Randels concurred. A Mr. RandaU: Guess your point is having the same rule, but the rule is going result in probably a lot of smaller standards. Mr. Randels stated the rule says apply the best available science. Part of that is, assess the erosion that is unique to a shoreline. Mr. Toews asked if he is suggesting erosion rates, period; whether coastal or upland? Mr. Randels agreed saying it seems logical. There may be other reasons to keep it this way. Mr. Toews continued, ". . . Wlder no circumstance may the buffer be less than a distance eaual to the sum of the bluff erosion rate over the useful life of the structure olus 20 feet." Q Mr. Randels: The tech assesses that over "x" years it is going to erode 5 feet, so you have to have a 25 ft. buffer. A Mr. Toews: Concurred; 5 feet over 75 years, useful life of the structure. Existirn! Plated Lots. Mr. Toews, .'. . .8 steen slone buffer less than that reouired. . ." for a new subdivision as set forth in the previous section. It would be permitted when necessary to allow for development of a single family dwelling on one of the previously platted infilllots provided the geotech report concludes that doing so isn't going to create increased risks to life, property, interference with enviromnental processes. All Buffer Setback Provisions. Language has been inclnded in subsection 4, essentially an administrative variance from the zoning setback provisions in Title 17, Chapter 17.16., so they can be reduced to as little as 5 feet to allow compliance with the landslide hazard area setback requirements. You can vary the front yard setback down to 5 feet, if it means you are going to be moving the house away from a hazardous area. Mr. Randall indicated the goal is to authorize that and not require a separate variance permit approval. Existin~ Structures: Remodel, wholly interior or a remodel that would not increase the degree of non-conformity (expand the footprint) of a non-conforming structure within the management and/or what would be the buffer setback established by a geotechnical report. It is no problem, is exempt and would not reqnire a geotechnical report. Remodel requiring site alterations and worth less than 50% of the value of the existing structure. It would reqnire a geotech report and could be conditioned to locate all of those improvements landward or npslope of the existing structure; you couldn't increase the degree of non-conformity towards the marine bluff. Q Mr. Randels: Is value typically nsed in a situation like this? It is a little vague than something more precise, something like square feet. Ms. Slabaugb: Do you mean square footage or something monetary? Mr. Randels: I assume you would use appraised value for the existing, and somebody's estimate for the proposed new. Would it make sense to think about using a different measure that is less subject to subjectivity? If you can come up with something, great; if not, no big deal. A Mr. Toews: Thonght that was a good point. Mr. Randall: The only thing he could think of, if you have a very, very old home and someone is basically going to raze it and bnild something totaUy new; going to spend so much money on it; maybe left one waIl or something and the question becomes, should they have done it and then bnilt a new structure farther back instead of being rather grandfathered to stay within that footprint. Q Mr. Randels: Agreed, under section 5.a. they can do that if they don't change the line of the foundation; they can do it as a matter of right. If you want to include that, you have to get rid of section 5.a. and rewrite it. That migbt make sense. He thougbt Mr. Randall's example makes sense and ought to be covered. It's not now. A Mr. Randall. Rigbt Mr. Toews: Situations he knew where structures have been razed, they have been razed to allow for new structural development that vastly exceeds the footprint. Q Mr. Randels: When someone sees this new statute, looks at 5.b and 5.c and decides that is onerous, then looks at 5.a and says if they just use that same exact foundation. I am sure you would allow them to shore it up, but they are going to use the foundation. They make do with a sIDaUer house with all kinds of bells and whistles they migbt not have put in the bigger one. A Mr. Randall: You migbt want to consider two different standards: one that basically says if you are adding and are below a certain square footage, it's one thing; and different where you are spending so much on. . . 'Planning Commission Minutes, February 24,2005/ Page 7 . . . Mr. Toews: Regarding the value; if it's 50% or more of the value of the existing structure, you would rather be sent back to square one and need to comply just as a new development would with the management zone and buffer setback recommendations. Q Ms. Slabaugb: Are you speaking of monetary value there, or square footage? A Mr. Toews: Monetary value. Ms. Slabaugb asked Mr. Randels ifhe was suggesting square footage. Mr. Randels was just raising the issue; it struck him that it was more subjective than square feet. Ms. Slabaugb bad never seen it monetary value. Ms. King was also trying to understand; you have shoreline and a $2 million house; they can do something for $900K. She was unsure. Mr. Randall thought their concern was more having a $2 million lot, have a $50K house and want to build a $1 million house. Whatrnles should they follow? What standard? Mr. Toews noted there aren't very many structures even now in Port Townsend; even with the real estate bubble we are in where the structure is worth that much money. We are talking about the value of the structure, value of the land and improvements. Mr. Randall summarized: basically, you are within the house, not increasing the footprint; and less than 50% of the value of the structure - you are exempt. Mr. Toews explained, as \Vritten: 1) If you are within the existing footprint, regardless of the value, not increasing the degree of non- conformity, you are exempt. 2) If you are under 50% and are undertaking some site alterations, a geotech is required, and you may be required to locate those improvements landward of the existing foundation. 3) If you are over 50%, it's basically treated the same as if it is brand new. Q Ms. Slabaugb: How is the value determined; just what the contractor's going to charge, or some fair market value? Mr. Randels thougbt this was well before a contractor has bid, at least in some instances. You would come in with plans and apply for a permit; you don't necessarily have a bid. A Mr. Randall: With a building permit, they have formulas in the building code that provide valuation based on square footage and quality of construction. They have to show on the building permit application, shoreline permit application, or whatever, the market value of the construction, plus labor and materials. It seems exceedingly low. As a matter of course, they run formula calculations and go with whatever the higber number is. Mr. Toews thougbt the value of the existing structure would be based on the assessor's's data which typically undervalues structural improvements, if anything. It is typicaUy sligbtly less than fair market. Mr. RandaU thought his only concern is that they migbt want to narrow the language instead of "existing footprint" to basically "within the existing shell of the building." If you wipe the building out, but you are keeping the same footprint. . . Q Ms. Slabaugh: What is a shell? Two, three, four walls? A Mr. Randels: It's the roof too; that's part of the shell. It's the existing envelope, not the zoning envelope. Q Ms. Slabaugb: Do we have a common understanding of a shell? A Mr. Randall thougbt they needed to defme what that is. He answered Mr. Randels that is what he meant. Mr. Toews: Just to be clear, razing a structure and retaining only the foundation, could that be characterized as a remodel? He thougbt you had to retain a certain amount of structure to even qualifY as a remodel. Mr. Randall: He did not know if that was a defined term. Mr. Toews: There are stories of people out there who keep the one wall, and it was a remodel. Q Ms. King: Why do we necessarily care if there if they are not going any closer to the bluff? A Mr. Toews was just going to ask that question. Mr. Randels: Thougbt weight plays a part. If you build a three-story building on the foundation of what was a one-story building, even if the foundation is adequate, you are putting a lot more weigbt on the underlying soil; that affects the bluff. Q Ms. Slabaugh: Does a geotech permit take that into account? A Mr. Randels: You wouldn't have to have a geotech under 5.a. Q Ms. Slabaugh: OriginaIly? A Mr. Randels: This is a 50-year-old house, one-story; they tear it down and just use the foundation. Mr. Toews: Answered Ms. Slabaugb, to the extent the geotech does take into account the proposed use. He thougbt she was rigbt, that the weight could potentially playa factor in the geotech report becanse the geotech report's is supposed to factor the proposed use that presumably would include the size and weigbt of the structure. Planning Commission Minutes, February 24,2005/ Page 8 . . . Mr. Randels indicated that is another reason they should reflect this envelope theory. Mr. Randall thougbt it makes sense to define that. If somebody is working with a building, keeping the waDs, keeping the roof, maybe residing the whole bnilding, putting a better roof on, but keeping that structure and spending a lot of money, putting in new tile in the bathrooms, who cares? But if they are tearing the whole thing down, maybe beefing up the foundation a little, he thougbt the normal intent of the code is basically to treat the old as non-conforming, and the new should comply with the new rules. Mr. Randels agreed and said citizens don't like it if it's perceived that is not what is happening. Mr. RandaU thought it would be unusual; it would be very difficult, but it would be begging a problem if you don't. Ms. Slabaugb said it is a loophole. Mr. Toews indicated you are going to have proposals, e.g., not entirely within the shell, that don't necessarily impose any increased risk to life, property and shoreline processing and should be permitted, e.g., dormer and engineered deck. Mr. Randels said the geotech wouldn't have any problem with that, and his report will be very short and cheap. Mr. RandaU thougbt that is where the square foot addition part Comes in. They are doing a minor addition, under a certain percentage and square footage thresholds. Mr. Toews stated they could do it that way: under a certain perceutage of the square footage of the existing structure or entirely iuterior remodel, that is not even an issne. Mr. Randall added, or define minor additions, e.g., new openIngs, new dormers, etc. Habitat Mana2ement Plan/Geo-Hazard Areas Mr. Toews discussed the interplay between the geo-hazard area provisions just discussed, and simultaneously triggering provisions ofFish and Wildlife habitat conservation areas (19.05.080.E & F), e.g., development of a proposed home along a marine shoreline. In particular, E.5 where there are standards applied for terrestrial habitat conservation areas, typicaUy within the SMP jurisdiction in higb bluff waterfront situations: (a) lot coverage maximums of 35%; (b) total impervious surface area limitations (currently drafted 50% or 5,000 s.f., whichever is greater); c) at least 15% of the lot required to be retained orrestored in native vegetation. The"point, there are multiple sensitive area reports that very likely could apply to an individual development application, and if it makes sense, to the extent possible, to have these professionals collaborating with one another. Where you have the Habitat Management Plan you are now reqniring a certain level of vegetation retention, obviously in the context of managing the geologically hazardous area site conditions as well. Mr. Randall pointed out this primarily addresses these. They have had buffers in the past, but have not had a way to deal with the vegetation in the buffer along shoreline properties. It is being drafted to try to provide meaningful standards that differentiate a situation. His map illustration: The last lot on the shoreline near Chetzemoka Park, all of the neigbbors have taken down 90% of their trees. You are in a very densely wooded area where the habitat value may be different, the species may be different; there may be reason to require more vegetation retention. They are trying to draft this to end up with intelligent results. Q Mr. Randels: Regarding the habitat issue, particularly the offshore aspect, he asked if they had discussions with the Port as mentioned two weeks ago when this came up with the desire to have something in here as a stopgap until they got to the shorelines; have you been able to do that in the intervening time? a Mr. Toews: No. He can do in advance of the hearing, or certainly encourage them to be present. Q Mr. Randels: He encouraged that he do both. They are another public agency; they are goverrunent. It's not like they are just another interested party; they are different from that. He again encouraged him to do that, and ask them to come to the hearing if they want to. a Mr. Toews agreed. Wetlands Mr. RandaU stated there are a lot of wetland scenarios. His attempt was to create some different examples: an existing house next to the wetland; a house on the edge of the wetland buffer; vacant lots in the wetland buffer that people are going to propose to bnild on; a street that separates a vacant lot from the wetland, ahnost entirely in the buffer; two lots partiaUy in the buffer and could probably build outside of it; residential, all R- II; Commercial wanting to expand for more parking -- their whole building and proposed expansion is in the buffer, but their existing parking is not. Wetland scenarios: a) Two lots, common ownership; wholly within the buffer Mr. Toews indicated they would discuss how the existing code and proposed revised code treat it pretty much the same; and how it would be treated under these modified provisions they are discussing with DOE Basically that is a reasonable use exception. You have to allow some development on that lot Planning Commission Minutes, February 24, 2005 / Page 9 . . . constitutionally to avoid taking of private property without compensation. You can reqnire the applicant to locate the development in such a way as to minimize or reduce the impacts to the extent possible; so, set that development as far landward as practical. Mr. Randall said they would apply the normal mitigating sequencing, e.g,; avoid -- can't, we are entirely within the buffer and have to allow reasonable use; etc Q Mr. Randels: Would you also have the relaxation of the other setback requirements in order to achieve even further? a Mr. Toews: That language isn't crafted in here. He thought that was a good idea, perhaps in General Provisions. Regarding the buffer line, Mr. Toews said several weeks when they discussed buffer alternative #3 for the first time, they talked about their general sense that the new wetland category rating system and proposed buffer widths very potentially were going to result in wetlands being categorized differently, and buffer widths being applied that weren't a lot different than they are today. Information they received this past week from DOE, Gretchen Lnx and Tom Ruby feel that Kith Tai, which under the current adopted rating system is Category I, therefore requiring a 150 foot buffer, under the new rating system would be Category II Coastal Lagoon, and very likely require a 150 foot buffer. It is applying extensively more refined science; the surprise, the result is largely the same as it is under the current code. Q Mr. Randels: Is it Category II because it's compromised, or just small? a Mr. Toews: Category II because it's highly compromised and many of the functions and values have been lost; it was originally an estuary. It's made a lagoon by virtue of the Port development on Sims Way. Mr. Toews stated that when they first started thinking througb these scenarios, they were thinking through them in the context of buffers that were going to be extending considerably farther into previously platted and partially developed areas than appears, in fact, to be the case. That is good news. b) One undeveloped lot sandwiched between two homes: one clearly non-conforming located entirely within the buffer; another located just out of the buffer Under the current draft of the code, that is a reasonable use exception and would be required to be set back to the greatest extent feasible. Mr. Toews said under the alternative approach DOE is recommending, althougb with a lot of caveats and being careful not to increase the non-conformity, all good advice, that development wonld be allowed to proceed essentially without reasonable use exception because of the fact of the home that lies northward. The existence of that home may so reduce the functions and values of the buffer that it becomes meaningless. Q Mr. Randels: Would that also mean they wouldn't have go as close as they could to that northeast corner; that they could line their house up with its two neigbbors, which some would say is good urban planning? You wouldn't have to follow those as well? a Mr. Toews: The proposal, that would be an exception to the buffer requirement. Q Mr. Randels: So they could line it up essentially as it is pictured, rather than shoving it up into the comer? a Mr. Toews: Again, we are talking about a situation where that intervening structural development so compromises the functions of the landward area of the buffer that it no longer makes sense. He did not know at this point whether it's going to be all that simple to make those determinations. You may have instances where the intervening structural development occupies a portion of a lot, e.g., oriented with the 100 feet of 50 x 100 foot lot, running parallel to the buffer line; in which case the structure may in fact diminish somewhat the functions and values of the property line landward, but not entirely reduce them, or eliminate them. They are talking about these conceptually with Ms. Lnx, but Mr. Toews does not know how they translate that into code language that addresses these highly nuanced situations. Mr. Randall said that rigbt now the way the draft is written, they would require a reasonable use exception; DOE is saying there may be a basis not to require that. They have not yet figured out that language. Mr. Toews indicated that DOE is saying there maybe a basis for carving out exemptions to the buffer requirements in these situations, provided they do not increase the degree of non-conformity or further compromise functions and value. c) Two lots, common ownership, partially within the buffer Mr. Toews indicated this is really a situation where you apply the mitigation sequencing, and avoid the buffer area. Mr. Toews suggested where you have an intervening roadway that pretty much eliminates the function and Planning Commission Minutes, February 24, 2005 / Page 10 . . . value of this portion of the buffer; there would be no limitation on the placement of the structure. Mr. Randall said there are situations, e.g., the road into Everett from the east all elevated over some wetlands, and the wetland can go under it; they are assuming the road divides the land and there is no connection anymore. Mr. Toews indicated there could be some hydrological continuity, but he thougbt this was a situation where it would make good sense and be much easier to explain to applicants at the counter. Mr. RandaU said they are basically trying to follow the same logic in their shoreline plan; technically, residential properties within 250 feet of the shoreline, but a road or the Larry Scott Trail at the bottom of your bluff. You have to use some logic. d) About the same as a): (two lots, common ownership; whoUy within the buffer) Q Mr. Randels: Except the street means you don't need to use that reasonable use exception. a Mr. Randall: Pretend the road wasn't there. Mr. Toews: You may be able to apply mitigation sequencing to a large extent and locate the new strncturaI development to the greatest extent possible in the northeast. e) Commercial, wholly within the buffer except for existing parking ontside the buffer Mr. Toews noted the proposal is to expand both the strncturaI and parking non-conformity within the wetland buffer. Under the code as drafted, that would not be permitted. Q Ms. Slabaugb: Under the code that is in existence? a Mr. Toews: Same result. The only question, up until DOE weigbed in recently on the wetland categorization, whether that buffer width in the delineated wetland edge was going to move significantly. It looks like it's not. Mr. Randall: They discussed, what if they could go up with this existing bnilding and not increase the footprint. What if they could relocate the parking outside of the buffer; that migbtresult in a different conclusion? You migbt be able to do it if you propose something different. Mr. Toews: The existing commercial is the reasonable use. Q Mr. Emery: Wouldn't the wetlands mitigation, the fund or setting up; if we put a parking lot in there, we have to nearby create something so there is no net loss? a Mr. Toews: Depends on the wetland category, if you have a wetland that is higb enough category where you simply cannot replace the functions and values ofIsite. Q Mr. Randels: OffSite is typically just for the small ones? a Mr. Toews: Most typically for III and IV. Particularly IVS don't look much different from muddy spots. In some instances it would be very difficult for a layperson to distinguish it a small, isolated Category IV. Mr. Randall discussed a couple of new maps they requested of Tyler. Most of their maps are dated from 1994/1996 or earlier. 1) Bluffs 40% or greater Gives them and somebody who is not familiar with the topography a heads up. 2) Wetland delineations accumulated over the years, added to the GIS system Information of the wetland delineation is on the GIS system; you can click on it, and it tell you who it was by, when it was, the category, and if there are multiple delineations. He indicated they have other maps that show wet spots in town, their overlay map which is every ESA but doesn't distinguish between them. Q Mr. Randels: Did you put a system in place for updates on a regular basis? a Mr. Randall: Yes. The bluffs map won't change, unless there is a major earthquake. They have created an easy form for the wetlands inventory. Part of the goal is to create some uniform standards for wetland reports, and they can enter the relevant information into the system. Ms. Slabaugb noted the one map had the wrong title, "Wet Areas", Mr. Toews pointed out that some of the categorization is going to change on the map that shows the delineated wetlands and their categories, as just discussed with regards to Kith Tai. Mr. Randall said they could update these maps any time; they don't have to go to Council to do it. The maps are not regulatory, just informational. Mr. Randall reported they are scheduled to have the Environmentally Sensitive Areas Ordinance public hearing on March 10. He said at this point, they are estimating that will have to be continued to have more time to deliberate, to hear testimony, hear suggested changes, and go over more scenarios. Ms. Slabaugb asked if they are going to give them the public comment today? Mr. Randall replied they would give that with the draft for the public hearing; they will also give then the written comments to date. They will start building that record. Planning Commission Minutes, February 24, 2005/ Page 11 . . . Mr. Toews said most of the comments he had received have been oral and broadly supportive. If anything, the majority of the suggested amenthnents relate to perhaps easing off some of the more strict language included in the draft. Those are some matters we touched on earlier, recommendations of Paul Ingralun from Berryman and Henigar with regard to deferring standards for landslide erosion hazards lying outside the shoreline jurisdiction; Fish and Wildlife habitat areas; vegetation retention and lot coverage standards pertaining to areas outside of the shoreline jurisdiction. They discnssed comments from Mr. Cambalik, Puget Sound Action Team, about folding some of these new technical gnidance documents into the standards applicable to all development to make sure they are used as a resource in developing mitigation plans. By and large the comments from agency folks have been supportive. Ms. Slabaugh was particularly interested in comments from the general public. Mr. Randall referred to an article he had just received from Mr. Randels about a big uproar inKing County about their new CAO. It sounds like Seattle has been rather quiet. He thinks part of the difference is that we are in a city; we've had CAOs for a while and a lot of the standards aren't going to change that much. Even thougb we may have to totally revamp how wetlands are classified, the criteria, the end result may be pretty similar to what we have. We have to provide reasonable use exceptions for these smaIl lots. In the County, if you have a big unplatted parcel, it is a different story. We have the ability to stay away from that wetland, and if the wetland buffers have increased, your expectations of development may be reduced more significantly than they will be in town. Mr. Randall said it is likely we will get some more reaction as the word gets out a little more, have relmed some of these scenarios, and understand the differences. He thinks the more it is not changing that much, it is less likely they are going to hear a lot. Some comments they received late last fall are they need to hurry this, get the best available science in place. He thinks people understand now why it is not done yet, because it is not easy. Chair Randels' sense was that we are doing really well compared to a lot of other communities. Mr. Cambalik agreed indicating that is not so with many jurisdictions. 5. Planning Commission, questions, discussion, and guidance concerning the contents of the "public hearing draft". Q Mr. Lizut: Asked about showing a buffer on the wet areas map, of the proposed boundaries for Chinese Gardens. a Mr. Randall: They thought about that, but that can change, depending on how it is delineated, or on the standards in the ordinance; they were rather reluctant. We feel it conld be misleading. These delineations are only good for 3 years if conditions change, or beyond that date. They don't want to give more of a sense of certainty than really exists. With a number on there, if they have someone at the counter they can explain what they need. Q Ms. Slabaugb: Option #3, you were referring to, takes into account these functions and values and some kind of calculation of the buffer as opposed, just if it's category "x", the buffer is "x", She was concerned about that being a lot or red tape and a lot of consultant fees. If the end result is the same, is it reasonable to do that? It pays more attention and is more sensitive to the individuality of each parcel, and yet if the end results are the same 90% of the time. Wasn't there some question about whether that was going to be the alternative? a Mr. Toews: The process to arrive at the delineation and the categorization in terms of the workload, e.g., between buffers alternative #1 and #3, it is almost a distinction without a difference. The work in going througb the approach under alternative #3 versus doing the delineation and categorization under # 1, the brigbt line, is negligible. Q Mr. Randels: Thought we had agreed we wanted to have both; have a brigbt line that would apply to the 95% or vast majority of cases to save people money and give them certainty, but to allow the one with the nuance or those who for whatever reason want to spend the money to use that option. He asked if he remembered that correctly. Is that in there? a Mr. Towes replied that he did remember correctly. The reason that isn't reflected in the this draft is because of feedback from folks saying it is a distinction without a difference in terms of the amount of work under both scenarios. The one that is the view of DOE is most consistent with a valid scientific approach to establishing both the categorization and buffer width that is particularly applicable in a given scenario as alternative #3. Q Mr. Randels: Let me go back then. Does that mean that in the large percent where a brigbt line would work. . . a Mr. Toews: You would still have to hire the consultant to come out. Q Mr. Randels: So, this is a consultant's employment act. That was one of our concerns when we talked about this. He still has that concern. a Mr. Toews: That is true under the existing code. Q Mr. Randels: That doesn't make it rigbt. a Mr. Toews: The requirement to do the wetland delineation report and the wetland categorization which would be required whether you would be using alternative #1 which is analogous to what we have under the current code but with different buffer widths versus alternative #3 which takes into account these different point values and more Planning Commission Minutes, February 24, 2005 1 Page 12 . . . specific. . . Q Mr. Randels: It sounds like the billable hours are much more under #3 than #1. If I am wrong, fme; but if! am right, I don't like that and ! think we should reconsider that. a Mr. RandaU: You did talk to a local wetland consultant, and they felt the work wasn't significantly more. Ifwe don't know what wetland classification it is, and the person isn't so clearly far away from it that they can safely say, "Don't worry about it, you are safe,"; Mr. Toews is rigbt, they have to at least do enougb of the delineation to figure out where that edge is and where the bnffer is. If we know what this classification is, and we know where the brigbt line is, we do in fact have a brigbt line, and if they are outside of it, they don't need to do it. But it is bisecting their property, or they are clearly in it, they do have to do more work. Q Mr. Randels: He noted "C'on the drawing. a Mr. Randall: If their development is clearly outside of it, and they are not doing anything. . . Mr. Toews: If yon know where the delineated edge is, and what the category of the wetland is already from previous stndies and reports, for instance, and you have a property where you can choose to locate outside that buffer, there would be no requirement. Q Mr. Randels: You don't have to hire anybody and go througbaU those hoops? a Mr. Toews: No, You do not. Mr. Randall: They migbt have to survey it, somehow mark it so they know where it is, something simple like that. Q Mr. Randels: Okay. IX. UPCOMING MEETINGS March 10, 2005 March 24, 2005 Open Record Public Hearing -- ESA Code Amendments Deliberations/Report & Recommendation - ESA Code Amendments X. COMMUNICATIONS Mr. Cambalik distributed copies of the Sunnnary of State of the Sound. 2004 and also the Low hnoact Technical Guidance Manual. Chair Randels advised he had received an e-mail from Marion Huxtable from the Non-Motorized Transportation Advisory Board inviting all members of other advisory boards to what looks like is going to be an all-day session, March 23, Fort Worden Commons. Mr. RandaU distributed brochures. It is free; the speaker is nationally known. RSVPs are required; space is limited. XI. ADJOURNMENT Motion to adjourn the meeting was made by Mr. Emery and seconded by meeting adjourned at 8:55 p.m. ~baugb. All were in fuvor. The , , / /~.J~~ , Planning Commission Minutes, February 24, 2005 I Page 13