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HomeMy WebLinkAbout031005 Minutes . . . CITY OF PORT TOWNSEND PLANNING COMMISSION MINUTES PUBLIC HEARING March 10, 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 Cindy Thayer, JeffKelety, Alice King, Liesl Slabaugh, Steve Emery and Roger Lizut; Lyn Hersey and Harriet Capron were unexcused. Also present were Consultant Eric Toews, Long Range Planning Director Jeff Randall, and City Planner Judy Surber. II. ACCEPTANCE OF AGENDA Chair Randels proposed approval of minutes be moved to the conclusim of public testimony in order to give the minutes more indepth attention. Mr. Emery made a motion to accept the agenda as amended; Mr. Kelety seconded. All were in favor. IV. APPROVAL OF MINUTES -- Moved to end of the meeting. V. NEW BUSINESS -- Open Record Pnblic Hearing Proposed Revisions to Environmentally Sensitive Areas Regulations (Chapter 19.05 PTMC): Before the meeting began, Mr. Randall distributed Exhibit C-6, comment letter from Washington Environmental Council dated March 9, 2005. At 7:02 p.m. Chair Randels opened the public hearing and read the rules governing the public hearing. He asked if any Planning Commissioner had any conflicting interests, financial or property, to disclose. No one responded. STAFF PRESENTATION Chair Randels introduced Long Range Planning Director Jeff Randall who turned the Staff Presentation over to Mr. Eric Toews. Mr. Toews, Cascadia Community Planning Services, stated he is the Port Townsend contract planner assisting City Staff in developing amendments to the Environmentally Sensitive Areas Ordinance. He noted the small size of the audience, already well ver",d on the issues, and showed overheads to briefly recap his previous workshop presentations. He explained this is a process of amending the City's Environmentally Sensitive Areas Ordinance to chiefly accomplish: I) to make a better code to protect the Ciy's sensitive areas, protect the environment and also life and property; 2) implement requirements of State law which were amended in 1995 to require that locally adopted critical areas ordinances include Best Available Science (BAS). The Growth Management Act (GMA) requires that all jurisdictions adopt policies and regulations that designate and protect critical areas (GMA .040). Under the Act, critical areas are defined as: wetlands, critical aquifer recharge areas, fish and wildlife conservation areas frequently flooded areas, geologically hazardous areas. The GMA does not set forth specific standards for critical areas protection, but does require local governments to designate and protect these areas through both planned policies and locally adoptal legislative codes. In 1995 the Act was amended, RCW 36.70A.I72, and in so doing the State Legislature raised the bar and required local governments to include the best available science (BAS) in both identiIYing and designating the areas to be protected, and also substantive protection standards to be applied to those areas. . . . Mr. Toews' concept of BSA: research conducted by qualified individuals using documented methodologies that lead to verifiable results and conclusions. He pointed out that Port TOWlsend is a small jurisdiction and has limited resources; therefore, they have had to rely on the good work done by State agencies and other jurisdictions to assist in this process, e.g., Department of Ecology (DOE) and Department of Fish and Wildlife (DFW). BAS is a continuum; there is no one specific answer to the questions they face. There are jurisdictions that are coming up with a range of answers that are acceptable given the specific geophysical conditions in a given jurisdiction. The State recommendations are pretty much a bright line, and are the product of the most extensive research available. In some respects, it is something of a safe harbor that the jurisdiction adopts regulations that are broadly consistent with the recommendations ofStae agencies. He stressed (though not included in the overheads) that what they have done in trying to develop and improve the draft ordinance is send it out to a group of qualified professionals. This group is comprised of both State agency officials; local experts, e.g., Dixie Llewellin, local wetland expert; people in DOE and DFW with specific expertise and who have reviewed tens/hundreds of critical areas ordinances and are able to provide critical commentary and sound advice as to how they might bestimprove the City's code. Mr. Toews suggested that the low number in attendance tonight might in part be due to the fact that some people have been actively solicited in advance and have had opportunity to help shape the draft. They are going to try to keep these people engaged, and welcome critical commentary throughout the process. Tonight is Phase 1 of the public hearing process with the hearing continued to March 24th. It is anticipated the Commission will accept written testimony up to and through that meeting, as well as give an additional opportunity for oral testimony on the 24th. Staff suggests that after public testimony tonight the focus be on clariIYing questions and answers rather than actual deliberation on testimony received to this poin~ save that deliberation for the 24th. PROPOSED AMENDMENTS: KEY CHANGES "Qualified professional" 19.05.020(45): defmition has been substantially modified listing requirements for qualified professionals -- those who can prepare geotechnical reports, wedand delineation and categorization reports; the best qualified people possible, and to discourage hiring several qualified professionals until you get the answer you want and move ahead with the permit application. References deleted throughout to the 1989 Federal Manual for IdentiIYing and Delineating Jurisdictional Wetlands. Now references the Washington State Wetland Identification and Delineation Manual, WAC 173-32- 090. Applicability (I9.05.030(C)): code clarified to extend to development that impacts ESAs and ESA buffers, regardless whether or not an ESA permit is specifically required. Exemptions and loopholes: certain ones proposed to be eliminated or limited significantly, incl1ding: New accessory structures within environmentally sensitive areas and their buffers regardless of size would be regulated. Currently there is an exemption for accessory strnctures less than 250 s.f. Closed exemption 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. They are currently exempt under the code. The initial draft (two weeks ago) proposed to close that loophole in its entirety and regulate all wetlands regardless of size. After that draft was circulated, they received comments, specifically from Donna Bunten and Gretchen Lux, DOE, proposing an alternative which has only been partially implemented in the language of tonight's oIaft, i.e., very small Category IV wetlands, 1,000 s.f. and lower, would be exempt from the application of the code. Their suggestion for Category III wetlands was substantially more complex-- Staff has not had opportunity to try to implement those policy suggestions in code language. Jurisdiction of the code has been extended. Currently, the code specifically exempts activities occurring waterward of the ordinary high water mark (OHWM) from application of the code. It is important to stress that the City is in the midst of preparing a new Shoreline Master Program (SMP) to implement the State's new shoreline rules. At least until December 1,2005, when the City's SMP is adopted, they are operating under the old SMP which in many respects has not been substantively amended in many years. Suggestions by The Puget Sound Action Team and DOE have been included in tonight's draft-- to extend the jurisdictional reach of the code at least until such time as the City's SMP is updated, to include not only the area landward of the OHWM up to 200 feet, but also areas waterward of the OHWM. Staff feels this is a wise approach that ensures they don't have any loopholes in the code. At the same time, they believe it does not create significant new hurdles as a pnctical matter for development applicants, typically over water development. Reasonable use exception criteria have been made significantly more stringent. Criteria currently in the code are almost unrelated to constitutional taking of private property without just compensation. The reasonable use exception (19.05.050.(D)(3)) is an escape valve intended to relate more specifically to that issue and to prevention. Planning Commission Minutes, March 10, 2005 I Page 2 . . . 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)]. (Recommendations of Paul Ingrabm, geoengine..s, and the master program process.) Geologically hazardous areas -- provisions substantially increased. Establish buffer management zone; re.commendations of a geotech report prepared by a licensed engineering geologist would control setting appropri~e buffer widths (19.05.100(D)(2)(f). Are not now consistent with what they believe are the standards of available science, having the ability to go down essentially to 25 feet almost without regard to the specific geology and soils of a particular site, and the height of a marine bluff. Ecology wetland rating system for Western Washington included as the basis for categorizing wetlands (19.05.110(B)(3)). Recommended by DOE. Ecology wetland buffer alternative 3 and compensatory mitigation requirements and ratios have been included (I9.05.11O(E) & (F). Recommended by DOE. Chair Randels stated regarding the waterside extension of the statute, he had felt it important to have a special briefing for people from the Port. Mr. Toews, Mr. Randall and he met earlier this week with a couple of Port Staff. He felt it was a useful meeting; perhaps their absence tonight is indicative that it was. Mr. Randall said for the record, they gave a summary of Mr. Toews presentation with a focus 01 Port properties. In a lot of cases, there was no change in the effect to their particular properties, even though there is a new wetland classification system and the buffers are higher. The accuracy of the classification system may result in a lower classification in some cases. They basically wanted to go over likely Port projects, so they are not operating in the dark; it is a complex ordinance. Chair Randels opened the hearing for public testimony at 7:22 p.m. PUBLIC TESTIMONY Ms. Nancy Dorgan, Port Townsend It did not surprise her there was not a large group of people present to help with this. It is extremely difficult. Like everything else in GMA she has gotten interested in, she started with knowing nothing-- educating yourself by hanging out with people who know. This is very difficult stuff. What helped her get to even where she is now was attending three public workshops a couple of years ago, two in the last year or so. Each time she went she understood a little bit more; it helped, these are really great. She referenced the comment letter, Exhibit C-6, Mr. Randall distributed from Mr. Jerry Gorsline, Washington Environmental Council dated March 9, 2005, stating they were one of the sponsors of this series of workshops along with Puget Sound Action Team, and 1000 Friends of Washington. At those workshops Mr. Gorsline presented; people from Fish and Wildlife presented, and it was very good. She based a lot of her quick comments tonight on things Mr. Gorsline covend in that letter. He said it briefly; there is quite a list there, but every one is pure gold. Washington Environmental Council (WEe) have really gotten into this in more detail, maybe even more than some of the agencies that are helping draft this ordiance. She hoped there might be other people who would jump in on this with the Planning Commission, or maybe Council. Her comments included: .080.B.4 (Echoed WEC comments) -- Add sand lance. The Port has sand lance issues there, Boat Haven property. Comin2 Buildin2 Boom This is really good timing before we start trampling a lot of things that could get trampled in whatS coming, that we really protect what is sO important as a public interest. These critters and the hydrologies all belong to the public; it doesn't belong to the people who own the land. We have a great public interest in this. Critical Areas Is so used to hearing these people refer to critical areas that she would like to see the City change the name of the chapter in the code to Critical Areas Ordinance, not Environmentally Sensitive Areas. ESA to her means something else at the Federallevet it has something to do with salmon. She would like to see a search and replace text function throughout the whole thing, just plug in Critical Areas; half of the time that is what you are saying, anyway. DOE Stormwater Mana2ement Manual. (200n Would like to see a phrase added "and subsequent revisions"; revisions are pending. She was glad to see that addition specifically mentioned because during the GMA update Mr. Toews said the code referred to the stormwater management manual. The old addition ornew addition wasn't specifically called out. This is an Planning Commission Minutes, March 10, 2005 I Page 3 . . . important thing to let people know. Include WAC Statement - The ordinance should be revised to contain a statement to the effect that "no land use action will result in a net loss of critical areas strncture and function, and that any adverse impacts resulting from the development shall be fully mitigated." This is something that is not in the ordinance now. Reasonable Use Exceptions These are very, very important areas. When any of the standards are reduced, for whatever reason -- the criteria changed and even improved, but whenever this process comes into play, the public needs to be notified. A person comes in -- they have to apply for an exception. Review of the notice thatthis is happening should include reference to the possible reasonable use exception. This is a constitutional, due process thing that the City is making sure they are not going to get sued. We want to protect what we are protecting here, and the public ~lOuld be informed that this process is being looked at in a different way, and the standards may not fully apply. She thinks there should be a public hearing, so that it is all out there. This is a serious relaxation in which she thinks the public should be very much asked to participate. Derme "endanl!er" Does not appear in the defmition section of the draft. She noticed the word appears in various places throughout the ordinance. She was particularly interested in how it appears in the references tospecies of local significance. IdentiIy then Protect Section .080.E.l. requires habitat management plans when endangered, threatened, or priority species are involved in the critical area being reviewed; however, that section doesn't say anything aboutthe determination of species ofloca1 significance. She did not know if that was an omission, and if they need to plug in that additional category there. Section 080.C.6. spealcs about when ". . . species' existence is threatened or endangered locally;' She was not sure whether or not the habitat management plan applies to that section, but would like to make sure about species of local significance, however they are designated. She thought they could flesh that out a little; that might come up once people get more informed. She asked that they look at those two sections and see how you could use a habitat management plan to protect the ones locally they go to all the extra trouble to identiry. Once we identiry them, how are you going to protect them? She thought having a habitat management plan, specifically for those, would be very helpful. No buffers less than 50' Did not think any buffers should be less than 50'. If through this reasonable use exception anything is reduced down less than that, she thought they should have in advance a program to make sure what is left is more than just sort of what is there, that it is really, really specially protected. She would like to see setbacks from the edges of these buffers be increased from 10' to 15'. They thanked Ms. Dorgan. At the conclusion of public testimony Chair Randels asked for any Staff response. STAFF RESPONSE Mr. Toews explained: 1) that tonight's draft does include sand lance within the fish and wildlife areas. 2) Regarding "no net loss," as he understands it, the GMA requirement is to protect critical areas, that the no net loss pertains to wetlands in particular. He thought that language is folded into Sa:tion .] 10 with regard to wetlands. The language has not been applied generally to all environmentally sensitive areas throughout the city. 3) He would have to look into use of the term "endangered" in Section .080, but acknowledged lack of the definitiOl in .020. That is probably something they need to look at. They propose coming back in two weeks with suggested modifications to some of the language based on what they have heard tonight and any written testimony submitted between now ad the public hearing on March 24th. They will do their best to have some responses and some suggested policy options for the Planning Commission to consider during their deliberations on the 24th. Ms. Thayer asked Ms. Dorgan if she would 9.lbmit her comments. Ms. Dorgan said she would type up a summary of her comments, not that they would not be covered in the minutes. Ms. Thayer pointed they do try to write a lot of them down, and Chair Randels said they try to do the minutes quickly. l!would be useful; many of her points are covered in the letter from the Washingron Environmental Council. Planning Commission Minutes, March 10, 2005 I Page 4 . . . Mr. Ke1ety pointed out for the record that sand lance, along with herring and smelt are on the bottom of page 36 in tonight's draft. Mr. Randall believed Mr. Gorsline, WEC, was correct; his review was on Draft #1. That might have been added do Draft #2, perhaps from Fish and Wildlife comments or peer review. Mr. Randall noted concerning the intent of tonight's public hearing, they did notknow how many of the public would be here, but they wanted to make sure there would be one copy of the ordinance that wonld be the copy they would use through the hearings. They are providing a fairly lengthy comment period. While they have had multiple rounds with State agency representatives and some environmental nonprofits, etc., the public has not had much opportunity; there is some absorption time required with this information. They wanted to allow that and also to let the Planning Commission a,j( Staff questions. He offered to take questions or go through scenarios. Their hope was to withhold deliberations on the ordinance and code amendments until Staff had one more time to review comments received since Draft #2 was put together, and draft upthe additional suggested changes so they feel they have covered everything before the Commission deliberates. Ms. Thayer referenced Ms. Dorgan'S comment about renaming it the Critical Areas Ordinance, and asked if there was a reason they had changed itto Environmentally Sensitive Areas. Mr. Toews recalled there had been certain members of the City BCD Staff that had completely disfavored use of the term, Critical Areas. The term has now wormed its way through the entire municipal code; it is not meely in Chapter 19.05; there are cross references in other titles and chapters of the code. He had started a search and replace, then realized the extent to which this term had been integrated throughout the entire code. He thought Michael Hildt had thoul!1t the term was inaccurate in describing what these areas are and favored use of the term Environmentally Sensitive Areas, and it was incorporated into the municipal code at that time. Ms. Surber gave her name for the record and asked if that could be resolved by renaming it "Critical Areas Ordinance (formerly ESA Ordinance)"? She agreed with Ms. Dorgan that everybody else calls it a Critical Areas ordinance, that every time she talks to someone she has to refer to it as, "our Environmentally SensitiveAreas Ordinance, which is the same thing as a Critical Areas Ordinance." Mr. Randall said now if we abbreviate it to ESAs, we are talking about something that has a different term and we confuse people. Ms. Surber thought if they could resolve it that night be an easier way, rather than replacing it throughout all the documents. Mr. Toews agreed that might be an approach that could be taken, that the definition of environmentally sensitive areas in .020 is identical to the definition of critical areas mder the GMA. Ms. Thayer's concern was, as Ms. Surber said, everyone else uses Critical Areas Ordinance; so are we just an anomaly? Mr. Toews thought it a point of confusion on a couple of fronts: State Environmental Policy Act (SEP A) uses the term as well in a different context. The acronym is confusing for people, e.g., Endangered Species Act. There are a number of different avenues for confusion using the terminology. Chair Rande1s suggested if Commissioners have questions of the public presertation, they do that before going to general questions. Mr. Kelety asked regarding the WEC comment letter-- .040.B.d, agricultural activities. There are at least three organic farms in town; he asked Staff for their comment on what merit this has toot least some agriculture going on in town. Mr. Toews apologized for not having a comment on the subject at this time. He thought they would come back on or before March 24th with detailed responses. Mr. Randall concurred. Mr. Randels' question (readng the requirement for hydrogeologic assessment, list on pages 34 and 35 of the draft), why not farms? All sorts of other things were listed. Mr. Randall (aquifer recharge areas), a concern that a farm would be a potential hazard? Mr. Randels acknowledge it was. If a golf course is on a list because it uses fertilizers, pesticides, etc., so do farms; not all, but many do. Mr. Toews felt it a fair point and explained, not as a defense, this was a section that last year they were talking about potentially eliminating from the code, simply because there were no aquifer recharge areas in the city that were used as a source of potable water supply. They thought better of that because of the obvious activity of aquifers and the fact there might be some ..:tivities in-city that would impact potable water supplies in adjacent areas of unincorporated Jefferson County. Chair Randels suggested another reason to have reconsidered that, there is pending an application from the City to whomever in Olympia they apply, to tap into an aquifer, he believed to basically drill a well at the golf Planning Commission Page 5 March 10, 2005 . . . course. He is told that may be pending for many years, but it's there and would be another reason to keep this in the code. Mr. Toews agreed even though not presently used,it is a source for potable water maybe in the future; but the point of the comment, this was not a section that received a lot of scrutiny because it was not a critical area, or environmentally sensitive area that represents a huge issue currently in the city. They were trying to be pragmatic about where they devoted their attention. Ms. Slabaugh asked if there are parts of the city that are aquiferrecharge areas, or is all of it essentially above a water table? Mr. Randall indicated there are areas that are not listed as aquifer recharge areas; it is basically a map of soils that are pervious to allowing water infiltration. He did not know how large. Mr. Toews stated it is a combination of soils and geology, and he thought it is probably more than har the land base. Ms. Slabaugh asked if some of the farms just mentioned could be in those areas? When it was first brought up, it sounded like there weren't any areas. Mr. Toews pointed out it was a term used for potable water supplies; that was the isne. It wasn't the fact the soils and geology didn't exist within the city; it was that nobody was using that water. Given the comment about potential future use, and certainly comments they had at a Staff level, fall of2004, there are clearly areas that are interconnected with city aquifers outside the jurisdictional limits of Port Townsend that rely on ground water. It was a good reason, at a minimum, for keeping the chapter in the code. Chair Randels asked about Ms. Dorgan's suggestion to ilclude "and subsequent revisions" with the Stormwater Management Manual for Western Washington. He broadened it, asking ifit made sense to include that in all other such references? They refer to many different manuals, regulations, etc.; whenever the)fllake reference to something subject to periodic revision, shouldn't they also include a clause similar to the one Ms. Dorgan suggested? Mr. Toews thought in theory that was a sound idea. He indicated that many jurisdictions throughout the State have not yet adopted the 200 I Stormwater Management Manual for Puget Sound; they have adopted bits and pieces of it, but not necessarily totally. What is in the code would not require the use of that Stormwater Management Manual throughout the jurisdictionallimits of Port Townsend, but would require it on parcels containing a sensitive area, critical area. Arguably, because it has not been adopted to the 2001 Manual, the City could continue using its old Stormwater Manual in areas outside of sensitive areas. This particular issue has been a sensitive one, one he thinks they would need to discuss at Staff level, certainly Public Works Staff, before folding in that kind of language. Chair Randels didn't think folding in that language changes the substance onebit of what Mr. Toews just said. Mr. Toews said he was trying to clariry the context for how it was used, but agreed Ms. Dorgan's comment is basically one he is not dismissive of. It needs discussion to get Staff comments, Public Works in particular, bd'ore they commit the City to using a Storm water Management Manual that may be amended in ways no one can use. Chair Randels' point -- if you are saying, as drafted this reference to it means it only applies in this context and not generally, adding the words "and subsequent revisions" would still only apply in this context, and not generally. Mr. Toews agreed. Chair Randels slated that if Public Works has a different opinion on that, they should be disabused. Mr. Toews reiterated they would be talking with Public Works, seeking their feedback on this provision and on the suggested revision to it. Ms. Slabaugh asked regarding Ms. Dorgan's comment about the public being informed if a reasonable use exemption is triggered, and she was curious as to the background. When is there public notice provided for in the code? Mr. Toews could not say there was no precedent for it in other codes, not having looked into this issue specifically. The reasonable use exception process is not intended to be a public process. It is intended to protect the City from a claim of an unconstitutional taking. It is really a reliew he thought would have been conducted in close consultation with the City's legal counsel, rather than necessarily a process that would benefit substantially from public involvement. It is a legal question as to whether or not application of the code renies all reasonable use of the property, thereby working an unconstitutional taking on a landowner. Mr. Randall agreed with Mr. Toews. It is predominantly a legal question; however, he did see some merit in considering public notice on reasonable use exceptions. Before the next hearing, he would like to find out how many applications of reasonable use exceptions they are receiving per year, how many situations where they are using this part of the code. Even though it is predominantly a legal questim, they are not asking about compatibility with your neighbor, he thinks it is still an issue that if used inappropriately, there may be a public oversight issue; where if there is no public notice and nobody knows someone has applied for a reasonable useexception from the code, the code is thereby waived, they wait until after 21 days have passed, get their building permit and begin Planning Commission Page 6 March 10, 2005 . . . construction, there may be no recourse, Mr. Randels suggested there might be no recourse for that specific instance; therecourse is obviously the political process. Mr. Randall added, "Changing the code." Mr. Randels countered, "Changing the incumbents." To Mr. Randall it potentially is something where they should consider public notice, depending on the scope of kinds of things and how many they doing. Mr. Randels did not know how difficult it would be to fmd out, but was curious, if elsewhere there have been any tests of situations where public notice requirements, public hearings, additional procedural steps to go through, have been tested in the courts as to their constitutionality. To the extent you burden this situation even more with time and cost, even notoriety, does that come into play in testing constitutionality? If they could fmd out, that would be useful information to have. Mr. Randall thought it may be something to check with the City Attorney. He indicated Mr. Randels was right; it is a delicate balance, that the whole point is to not allow the code to trod upon the narrowest view of their legal ri~t to do something with their property. We can't deny all use of their property. Adding public notice -- does that somehow create additional burden? He thought it a fair question and would like them to look at it some more; he anticipates Staff will cOJre with some feedback on the issne on the 24th. Chair Randels asked Ms. Dorgan about her suggested requiring setbacks from any buffer be 15' as opposed to 10'. He said philosophically he was wrestling with this-- jfa buffer is, say 50 feet, and you are required to have a setback from that of another 10 feet, doesn't that equate to a buffer of 60 feet? Ms. Dorgan answered that it gives added protection you could defme as a 6()'foot buffer. Things are happening in the buffer that are part of the ecobgy. Mr. Randels understood, but stated the buffer is intended to give that environmentally sensitive, critical area the protection it needs from the harm that might occur to the uses and functions, if development weren't held back from that buffer area. You have met the purpose ofthe buffer by going to the edge of the buffer. Presumably, if the buffer calculation is correct, you don't need to have any additional setback in order to achieve your goal. Ms. Dorgan indicated there can be encroachments from a structure, say a back structure or someone's barbeque starts to be out there, a little patio, all sorts of uses. Mr. Randels said he understood that people might abuse the buffer, but assume they don't. Ms. Dorgan replied that lots of things happenin a buffer, so by having the strncture itself back from the buffer, it protects the buffer from bikes, barbeques, log piles. Mr. Randels asked if they don't then need another setback, to protect the setback that protects the buffer? Mr. Randall explained the 10 feet is basically to make sure that somebody doesn't go right up to the line, and can't maintain their building. Say, doing it legally, painting the building his predecessor put right up to the buffer's edge because the City allowed him to. No,,> he isn't even supposed to be up there walking around it. Mr. Randels understood -- it is a place to put the ladder. Mr. Randall suggested a place to put the ladder, a place to walk around it. It is reasonable to expect, once something is built, peope will want to go around it, go to it, fix it, repair it, etc. -- just have it set back a little to allow for that, so we won't have treading upon areas that shouldn't be trod upon. Ms. Slabaugh thought of it as yard. Mr. Randels agreed and said there a:e such things as zero lot line development. He thought that was a rational response. Ms. Surber stated that providing that strnctural setback, you also reduce the likelihood of significant impacts during constrnction. Mr. Randall indicated that no contactor builds without making a mess around the house. Mr. Emery said the W.E.C. document they were given at the beginning of the meeting, page 3, states their reason, basically to be consistent with State's code provisions for designating and protecting critical areas. He guessed that is what the State is recommending. Mr. Randall indicated they would look at that comment along with other suggestions that might come up. Mr. Emery noticed they have been getting a lot of very good peer review. Mr. Randall again mentioned he felt part of the reason there were not many in attendance is because a lot offolks feel they have been heard, that this is a good document. Mr. Emery felt changes the public does recommend are very logical, and he did not see much wlo/ out of line with what they are already doing. Chair Randels asked if there were more questions of the public. Mr. Emery asked regarding the presentation; he thought the waterward side jurisdictionally was always Department of Ecology territory, e.g, the Maritime Heritage dock. Didn't the State have the final say how and where it was built, basically? We are not unprotected, we have State backing? Mr. Toews stated that as a matter of practical reality, they are the ones that are weighing in on ttese issues. Incorporating this within the designation of the jurisdictional limits of the sensitive areas ordinance essentially provides them another regulatory avenue to accomplish what he believes they are already doing under the SMP, also project permlapproval. Planning Commission Page 7 March 10, 2005 . . . Mr. Randels suggested you could posit a situation, unlikely as it might be, where the State might be less rigorous in enforcing its laws and rules. Having an additional line of defense at the local level might be a good thing. Mr. Randall indicated Mr. Cambilik presented them with the argument that areas waterward are critical areas. You are updating your SMP to include best available science; that will not necessarily be done until December 2005 -- what are you doing in the meantime? Mr. Randall thought that was a good point; they feel for practical purposes, the way they administer even their current SMP, they would require equivalent studies as specified in this version of the ESA ordinance; let them know it is in the code; these will be required to address these ecosystems. They may eliminate references here unless they feel the SMP totally inadequately addresses things. He said the overlap is a little confusing on critical areas. For the most part they were addressing things in both;however, they will not require two permits for the same action, but require the highest level permit. At 8:05 p,m. Chair Randels ended public comment and questions of the public. He called for any Planning Commission questions of Staff. Mr. Randall encouraged the Commission not to deliberate at this meeting because they do not have the final document. He suggested if they have questions, things to help prepare to make deliberative statements, or things they wish to discuss any further, they do that now. Mr. Toews asked that they ..mail him regarding typographical errors and non-substantive changes. They are not trying to make the existing code perfect; they have tried to make the lin.,.inJline-out langnage they have done as accurate as possible. If they have made errors there, or if there are glaring things in syntax and strncture in existing code language not proposed to be amended, let's catch it now so when it goes off for code publishing, they can fix it. PLANNING COMMISSION OUESTIONS OF STAFF Q Mr. Kelety: Questioned the W.E.C. comment, ".010 Purpose-- The intent of the ordinance should not be to "minimize impacts," but rather to prevent any net loss. . ." A Ms. King: Thought Staff responded to that already and said no net loss mainly pertains to wetlands. Mr. Toews: Section .040 of the Act with regard to Critical Areas, requires jurisdictions to protect them. Q Ms. Surber: Hasn't that been interpreted by the courts to mean "no net loss?" A Mr. Toews: Of wetlands. Mr. Randall: There is a Governor's order that basically states there shaH be no net loss of wetlands. Q Mr. Randels: Please illuminate again, toward the end there are several ratios-- as much as 12 to 1, as he recalled, in the mitigation provisions. It seemed to say, if you do something on the site that needs to be mitigated, and are going to do it off-site, you are going to have to do it at a multiple. It implies to his untrained ear, that no net loss means substantial gain. A Mr. Toews: He thought from DOE people, wetland functions and values, particularly of higher grade wetlands, are irreplaceable. They are almost impossible to replicate, so that when you are doing onsite or off-site compensatory mitigation where you have elimilated wetland "A" and are trying to make up for the function and value you lost in "A" through created wetlands, oftentimes you need a wetland in a multiple magnitude in order to replicate the functions and values eradicated by virtue of destrnction of theoriginal wetland. Q Mr. Randels: Defmition #44 (page 9), "Practicable alternative," ". . . It may include using an area not owned by the applicant which can reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed development." Does that purport to say the City can require an applicant to purchase nearby land? He thought that might run into a Fifth Amendment problem. A Mr. Emery: It sounded to him, if you don't have the area to mitigate onyour own land, if you can make arrangements with your neighboring land owner; if there is a way to get an easement, or something. Ms. Thayer: You may have to purchase-- or you don't do it. Mr. Randall: ". . . which can be reasonably be obtained. . ." Mr. Toews: HIt may include. . ." is an example. Mr. Randall: It is qualified a couple times. If somebody is unwilling-- Q Mr. Randels: Even if you can buy it for what the whole world would say is a reasonable price, if you don't want to buy it-- A Ms. Thayer: Then you don't do it. You don't get to do your project. Q Mr. Randels: Then you run into the reasonable use exception. A Mr. Randall: Thought they were getting into a discussion-- be prepared for more dialog on that one. Planning Commission Page 8 March 10, 2005 . . . Q Ms. Slabaugh: It seems this is a question for City Attorney Watts, if you are interpreting that as putting the City at risk or violating reasonable use. A Mr. Toews: Thought the hypothetical Mr. Randels raises is really more of a nexus issue than necessarily a constitutional takings issue, where you are essentially requiring an applicant to take a step that isn't necessarily reasonably related to the impacts of the development. You may be able to mitigate onsite without requiring acqnisition of that off-site, even though it might be doing something less; or by changing the mitigation regime 08 site rather than looking to an adjacent site. He thought the best they can do now, is to see specifically what Mr. Watts says about this language. Q Ms. Thayer: Ifwe have specific questions, we can call, can't we? A Mr. Randall: Yes, this is legislative. Again, at the last workshop we spent a fair amount of time going through scenarios: wetlands, steep slopes, shoreline bluffs, etc. If anybody wmted we could touch on any of those. Q Ms. Thayer: Did you take some of this from SPM recommendations? She is on the committee. A Mr. Toews: Concurred. Q Ms. Surber: The no net loss issue also extends to shoreline resources too, through the Shoreline O1idelines. A Mr. Toews: That is right. Q Mr. Randels: Enactment of the SMP within a relatively short period oftime-- are several provisions in here that are also in effect there just because the SMP is coming down the pike later? We wanted to have he waterward side of things covered? A Mr. Toews: Yes, that is one issue found in several of those amendments. Q Mr. Randels: Would it make sense (if we don't know yet what the shoreline protection amendments will be, provisions in here that will be affucted by the shoreline, in effect supplanted by it) that they include a sunset provision of some kind, so there isn't a conflict? When that does come along and gets enacted, these will vanish, and they will take over? A Mr. Toews: He and Mr. Randall have discussed this. They think, simply because of the strncture ofthe language in Section .050, it would be easier to come through with a concurrent amendment to the Sensitive Areas Ordinance at the time of adoption of the SMP. Q Mr. Randels: That works too. A Mr. Randall: If they left a sunset in there, it would be awkward to draft, and would be living in there forever. Rather than do that, they thought to fix it permanently now, and unfix permanently whey they adopt the SMP. Q A Ms. Thayer: At the same time? Mr. Randall: Yes. 1fwe want to, and it's appropriate, also remove the overlap. Q Mr. Rande1s: Buffer width averaging. If you have an owner of part, but not all, of an area subject to a critical area that has a buffer, can that owner use the averaging process? If so, couldn't that adversely affect the other owners who haven't gotten around to it yet? A Mr. Toews. Yes, you can-- no, it doesn't. The notion of averaging, again, is that the overall function and value remain the same. If you allow a buffer to be minimally reduced in one area, it's going to have to bump out on one land owner's property, because this is where it is occurring. Its functions and values are going to have to be replaced by increased buffer width on the same property. It would be the same for all of the landowners in the buffer surrounding, he thought a wetland in this instance. Mr. Randall: You can only increase/decrease on your own property. You can't decrease it on your property and push it out on yourneighbor's property; use up all the decrease rights of the wetland. Chair Randels concluded that part of the public hearing. Mr. Randall stated it is important to note the hearing is not closed; it will be continued on March 24, 2005, and additional piblic testimony will be taken at that time. APPROVAL OF MINUTES -- Moved from beginning of the meeting Minutes of Februarv lQ. 2005 (Continuation ofPnblic Hearing. Off-Street Parking & Loading Regulations): Mr. Emery made a motion to approve the minutes as amended; Ms. King seconded. All were in favor. Planning Commission Page 9 March 10, 2005 . . . Minutes of Februarv 1Q. 2005 (Public Workshop. Proposed Revisions. ESA Chapter 19.05 PTMC): Mr. Kelety made a motion to approve the minutes as amended; M. Emery seconded. All were in favor. Minntes of Februarv M. 2005 (Public Workshop. Proposed Revisions. ESA Chapter 19.05 PTMC): Ms. Slabaugh made a motion to approve the minutes as amended; Mr. Emery seconded. All were in favor. IX. UPCOMING MEETING March 24, 2005 Continued Open Record Public Hearing: ESA Code Amendments; DeliberationslReport & Recommendation Open Record Public Hearing: Adult Entertainment Business Ordinance Open Record Public Hearing: Manufactured Home Ordinance and Clarification of Duplex, Triplex, Fourplex Defmitions April 14, 2005 April 28, 2005 Chair Randels asked the feasibility of combining the two public hearings scheduled in April into one meeting. Mr. Randall thought the hearing for the Adult Entertainment Ordnance could be a short meeting, but the Manufactured Home Ordinance would be too long to combine the two. It was determined no workshops were necessary before open record hearings for either. Adult Entertainment Business Ordinance (including): . Adding and/or changing definitions in the municipal code to defme what an adult entertainment business is; what it is not; where that line is. . Designating one zoning area in town -- through text amendments; basically, a commercial area south of Sims Way; the one area in town where adult entertainment businesses could go. Manufactured Home Ordinance Mr. Randall's brief review: State law was changed last year to prohibit cities and counties from treating manufactured housing different from any other sort of constructed housing. Port Townsend prohibits manufactured housing in the National Register Historic District, mapped basically uptown to Morgan Hill. It is also in the Comprehensive Plan. One of two things needs to be done: . Allow manufitctured hou~ing anywhere in town that allows a regular single family house; treat them the same; or, . Maintain the prohibition on manufactured housing in the Landmark Historic District. It would then have to be done through some sort of design standards. Recommendation is going !Q be: Allow manufactured homes throughout town, but allow them to impose square footage limitations allowed by law, basically a double wide with approximately 847 square feet, prohibiting the little ones that have been so controversial. ClariIY the definitions of Duplex, Triplex, Fourplex to close the gap between the zoning code and the building code. X. COMMUNICATIONS -- There were none XI. ADJOURNMENT Ms. Thayer made a motion to conclude the meeting; Ms. Kin seconded. All were in favor. The meeting concluded at 8:43 p.m. to be continued 7: p.m. March 24, 2005, Cedar Room of the Waterman & Katz Building to hear any additional public co ent, d berate and take action on proposed revisions to the Environmentally Sensitive Areas Regulations (Cha er 19.05 TMC). / v Page 10 March 10, 2005