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HomeMy WebLinkAbout041405 Minutes . . . CITY OF PORT TOWNSEND PLANNING COMMISSION MINUTES PUBLIC HEARING Thursday, April 14,2005 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 Harriet Capron, Steve Emery, George Randels, Lyn Hersey, JeffKelety, Alice King, Roger Lizut, Cindy Thayer. Liesl Slabaugh was excused. Ill. ACCEPTANCE OF AGENDA Ms. Thayer moved to accept the agenda; Lyn Hersey seconded the motion, which carried. Pll were in favor. IV. APPROVAL OF MINUTES Ms. Thayer moved to accept the minutes of February 24, 2005 meeting as amended; Mr. Emery seconded. All were in favor. Ms. Thayer moved to accept the minutes of March 10, 2005 meeting as amended; Mr. Emery seconded. All were in favor. Ms. Thayer moved to accept the minutes of March 24, 2005 meeting as written; Mr. Emery seconded. All were in favor. V. NEW BUSINESS Continued Open Record Public Hearing: Proposed Revisions to Critical Areas Regulations (Chapter 19.05 PTMC): At 7:05 p.m., Chair Randels reopened the pubic hearing and noted that he had previously outlined the governing rules. A. Staff Presentation Eric Toews of Cascadia Community Planning Services provided an overview of what work has been done since the February 25 Critical Areas Ordinance update. Many of the changes in Draft #3 (Exhibit D), aimed at improving administrative procedures, were non-substantive, relating to process and how the code works. The more substantive changes, outlined in Mr. Toew's April 7 memorandum to the Commission, include: v" References to the 2001 Stormwater Management Manual for Western Washington were replaced with the City's engineering desigo standards manual. Another change related to language proposed for amendment to the wetland's section and specifically using wetlands for stormwater management purposes. The rationale for these changes is explained in Ken Clow's April 6, 2005 memorandum (Exhibit G8) included in the Commission's packet. v" Language has been modified to allow wetlands for stormwater management purposes under strict guidelines. The applicability and exemptions have been extensively modified, so that the activities previously allowed under I'Waivers" have been consolidated under the "minor critical area" permit provisions. v" Language related to constructed/man-made wetlands in Sections 19.05.1\0 and 19.05.020 were clarified and were made internally consistent as well as consistent with statutory definitions. Planning Commission Minutes, April 14, 2005 ! Page I . v" Based in part on citizen comments, the application and approvaJ process for Reasonable Use Exception are clarified as Type II permit decisions requiring notice prior to issuance of an appealable administrative decision. v" Building setbacks from wetland buffers (19.05.110) and Fish and Wildlife Habitat Conservation Area buffers (19.05.080) have been made consistent and expanded to 15 feet to ensure sufficient area exists outside the barrier to conduct construction activities without adversely affecting the buffer. v" There was also clarification of Frequently Flooded Areas Language (19.05.070) to make explicit reference to the City's Flood Damage Prevention Code. He noted the removal in Section 19.05.020 of the confusing and irrelevant defmition of "jurisdictional wetlands" (from the 1989 Federal Manual) in favor of a consistent reference to the Washington State Wetlands Rating System. v" What amounted to a defacto exemption within the Defmitions Section 19.05.020 was relocated to the exemptions in 19.05.040. v" The order of priority for off-site compensation was clarified so that off-site mitigation would occur, where possible, in the following order of preference: first, within the same city drainage basin; second, within the city limits; and third, within the same water resource inventory area. v" The wetlands special reports language in 19.05.\10(1) has been substantially modified in an attempt to reflect the reports the City requires and explain them more fully. v" Other minor amendments throughout Section 19.05 - references to the Building and Community Development Department has been eliminated in favor of the Development Services Department and references to Environmentally Sensitive Areas have been replaced with Critical Areas. Staff has continued to work on the document since the April 7 Draft was sent to the Commission and they anticipate the Commission needing to continue this hearing to the 28th to ensure the inclusion of all appropriate material. Mr. Toews then distributed a documentofPotentiaJ Additional Revisions to Chapter 19.05 (Exhibit D- I), noting they are not necessarily Staff recommendations, but issues raised by Staff and Planning Commissioners that warrant Planning Commission consideration during its deliberation. Changes shown in gray are new and/or different from Draft #3. . Mr. Randall noted that comments as submitted by the Puget Sound Action Team came today and should be marked as (Exhibit G9). Mr. Randels solicited comments by Ken Clow. Mr. Clow responded that the changes submitted were practical and that he is supportive of having one set of standards for the City. He does not think it is practical that the Critical Areas Ordinance is the mechanism for the Council to adopt the new stormwater regulations, which should be adopted in a stand-alone process. He said that in a recent meeting on state stormwater manual it was clear that the manual has been revised and although it was supposed to be released in 2004, is still incomplete. The new revisions are expected to make a better manual, so it does not make sense to try to adopt a manual now and proceed with making administrative changes to the City's engineering desigo standards and permitting handouts. Staff is moving forward with the adoption of a stormwater plan for the City and is in the process of contracting with a project manager and moving forward on an aggressive timeline. Hopefully, this work will result in a comprehensive stormwater approach rather than adoption through the Critical Areas Ordinance. B. Public Testimonv Nancy Dorgan of Port Townsend commented that in his cover memo for Draft 3 of the ordinance, Mr. Toews' second bullet refers to Category 1 and Category 2 wetlands being used for regional stormwater control, yet Mr. Clow's memorandum references "all wetlands." She would like clarified whether this truly means all wetlands. She said it was her understanding that the Compo Plan is where policies . Planning Commission Minutes, April 14, 2005 ! Page2 . should reside - polices are either adopted as part of the Compo Plan or the policies in the storm water management plan (SMP) are adopted by reference. It would not be adequate for the SMP to be another utility document that is not part of the Compo Plan. She expressed disappointment with how long it has taken to get the SMP going. She understood the logic for the delay in adopting the 200 I manual, but pointed out that if this current ordinance were adopted, it would be out of GMA compliance. There would be a Compo Plan that says we are doing best available science in the investigation, review and approval of permits that involve stormwater, but we are using old standards. It is very important to move the stormwater manual along as expeditiously as possible. In her earlier written comments, Ms. Dorgan had requested that a "no net loss of critical areas functions and values" statement be added to the ordinance. While she is pleased to see this "no net loss" phrase, she believes that rather than refer to it on line 6 Pg. 27 of the draft (Section 19.05.050, Critical Permit Administration) it should instead be under Section 19.05.010, Purpose of the Ordinance. Mr. Randels solicited Staff comment on public testimony. Responding to Ms. Dorgan's comments about his second bullet point in the April 7 cover memo, Mr. Toews noted that the language in Drafts I and 2 prohibited the use of Categories I and II wetlands for stormwater management purposes. The modification in Draft 3 is intended to strengthen the language in the current code (not the current draft) and allow the use of all wetlands regardless of category, subject to strict performance standards for stormwater management purposes. However, it is unclear under the new rating system whether any Category I wetland exists within the City limits. Ms. Dorgan said she believes her misunderstanding came from a section where private individuals are not aJlowed to use wetlands for stormwater management, but she sees now the distinction is that the City would be allowed to use all wetlands. . Mr. Clow noted that many other communities have not adopted the new stormwater manual. While he cannot speak for the City Council, he cautioned that adopting the manual would have a fffiancial impact to developers, to the City and, therefore, to taxpayers. He added that there is a new manual addressing best available science, but it is already undergoing revisions. It is not easy to use and whatever is done in setting up a process must be workable. Not only do we adopt a manual, but all other references have been updated as well. There is a lot of process in updating the engineering design standards and training Staff to be conversant in the new techniques. While it was mentioned that we have talked about doing this for a long time, and that other staff priorities and a lack of staff time have kept this from being addressed, there is now a commitment to doing the work. Now that Staff has Council direction, he would like to see ftrst efforts done in six months. Mr. Toews reiterated that the objective is to provide the best protection for the City's critical areas. While the ordinance would appear to be in compliance, it would result in confusion and could easily result in less protection. The desire is to do it right the ftrst time, rather than making the code more technically compliant, but being inadequate at protecting criticaJ areas. Mr. Randels asked if anyone wished to comment on the "no net loss" language being in the wrong place. Mr. Toews made two points: the reference, even where it is, is in error and they have been working with the City attorney's office on this and researching this issue. The current understanding is that the no net loss requirement applies to wetlands and the shoreline jurisdiction, but not to other critical areas under the Growth Management Act. Staft. hopes to have additional information at the April 28 meeting. . Mr. Randels asked if City Attorney Watts should be invited to attend the meeting on Aprii 28. Mr. Toews agreed and commented that he should be provided with a detailed memo addressing these issues ifhe is unable to attend. Planning Commission Minutes, April 14, 2005 ! Page 3 . C. Ouestions bv the Plannin. Commission Mr. Kelety expressed appreciation in advance for Council's efforts to adopt a plan. He asked what the new State storm water plan lacks from the old. Mr. Clow explained that the Department of Ecology 2002 stormwater management manual is very technical and includes a computer model for determining how much runoff water is generated on each site. One of the problems was that the rainfall data originally dido't include Port Townsend, but the much different Port Angeles rainfall data. The new manual would set forth more stringent criteria for allowable runofflhow much water you can release over time for any developed site. Leaving aside the complexities of implementation, Mr. Kelety asked what impact this would have on what the Commission is considering. Mr. Clow responded that it deals primarily with wetlands - trying to manage it as naturally as possible using existing wetlands. He listed the various wetland properties the City has purchased over the years for that purpose. Mr. Kelety asked if the City would be giving up anything in going to the later manual. Are these more stringent criteria something worth looking at or does it not have much of an impact? Mr. Clow responded that it reduces the amount of water you would have to deal with off-site. This is good news for the general public as development takes place. Projects for the generaJ public would be more expensive, such as when paving streets - a larger amount of the budget would need to be devoted to storm water management. Mr. Kelety clarified that Mr. Clow had two concerns about going with the later manual, one of which was the complexity of moving to a new manual. Mr. Clow restated that he did not want the Council to base that decision on a Critical Areas Ordinance but by looking at it in terms of the stormwater issues. . Mr. Kelety again clarified that the 200 I Stormwater manual is beneficial with regard to wetlands and runoff. Mr. Clow said it reduces the amount of water that comes off a developed piece of property and the timing of that water coming off. Mr. Emery asked if it would be premature for the Commission to put a placeholder for the adoption of these soon-to-be developed standards, and say that until then we would keep the 1992 standards. Mr. Clow recommended against prematurely referencing the coming document as the one to be followed, noting there is already a commitment to move ahead. Mr. Randels reiterated that this is an important policy matter for the City and one that belongs in the Comprehensive Plan. But, clarifying that the Comprehensive Plan does not have the same force and effect as an ordinance, he raised the need for some mechanism to bring this issue back to the Compo Plan amendment process for updating at some point. Mr. Clow reminded that the stormwater plan is a functional plan, designed to guide implementation once the policies are adopted in the Compo Plan. He believes there is currently guidance in the Comprehensive Plan and he knows the draft we are starting from now is based ou the guidelines in the Compo Plan. Ms. Thayer, regarding Potential Additional Revisions (Exhibit D-I) asked whether the beginning of Item 13 on Pg. 6 is a sentence or a definition. It states, "Any development not connected to sanitary sewers that is located in a critical aquifer recharge area." Mr. Toews acknowledged that the confusing line should be strickeu. It was also clarified that the third sentence in this item, "In cases where connection..." should include a previously stricken word so as to end with 'l...ground water may be required, " . Mr. Lizut asked for Mr. Clow's thoughts about the Puget Sound Action Team's recommendation to reference the Limited Impact Development manuaJ. Mr. Clow said he thinks it is a good recommendation. It would ensure that a goal of low impact development standards - aJternative ways to deal with stormwater on your property - could be incorporated into whatever stormwater standards we are using. InitiaJly, these standards and the stormwater manual were separate documents, but the Planning Commission Minutes, April 14, 2005 ! Page4 . . . idea although not required is that the new stormwater management manual identifies and encourages low impact development techniques. The goal of the modeling is to give more credits for implementing low impact development. He observed that the credits are still not much of an economic incentive. Mr. Randels sought clarification that the Commission could not get down to actual deliberations until the continued hearing is brought. Mr. Toews, explaining that they would indeed be precluded from taking formal action, suggested it would be appropriate nonetheless to discuss possible amendments and take informal action, such as to the PotentiaJ Additional Revisions (Exhibit D-1), so that Staff could include the suggestions in the draft. Ms. Thayer asked if the Commission could continue with questions and go through Draft #3 page by page, so that deliberations could occur on April 28. Mr. Randels concurred. When reminded by Mr. Kelety that he was to review agricultural lands as pall of critical areas, Mr. Toews said this was reflected in changes to Pg. 35, Item f. of 19.05.070 and related to critical aquifer recharge areas. Mr. Randels asked if certain data were found on the frequency of reasonable use exceptions. Mr. Randall indicated this had not yet been done, but he did not believe there had been more than one per year. He offered to do more research ifthere is interest. Mr. Randels then returned to the minutes of the February 24 minutes and said that the "shell of a building and reuse of an existing footprint" issue raised a question of value versus square feel, etc. The question was how much remodeling was enough to trigger rules that apply to rebuilding on the foundation of a one story but adding one or two extra floors. He asked if any changes were made as a result of this discussion. Mr. Toews said this issue was addressed in 19.05.110(E)(5), Pg. 47 line 3 under "remodels and/or additions," but the provisions have not been modified from Draft #2. Mr. Randall said it is important to remember that we are talking about geologically-hazardous areas, so it is just that critical area. It is also talking about site modifications, not just building on the prior existing footprint. There actually is an exemption under 19.05.040 for remodeling, reconstruction or replacement of structures that do not meet the requirements of this chapter provided there is no increase in potential impacts. So, if you are working within the existing footprint even though you are in a buffer a little bit or in a geologically-hazardous area, that exemption could apply. This is only talking about when you are increase the area of your foundation. Mr. Randels asked to clarify "could apply" meaning, "shall apply?" Mr. Randall said it does apply - it is an exemption, provided there is no increase in potential impacts. Mr. Randels said that during the previous discussion some felt that even staying within the same exact footprint, the impact could be increased by building higher and heavier. Mr. Randall said that it is a general exemption to allow reconstruction, remodeling, repair, etc. to existing buildings, but it is going to be back-dependant upon how they do it. If you are in or near a buffer, it is not just what's there - it's how it's built. If the project does not impact its wetland buffer any more than the existing building does, then it can go forward. However, if someone is proposing to run trucks around it, bring in fill, etc. in the process that would have impact. Ms. Thayer asked if this type of question is one that could come up as the Commission goes through the document page-by-page, which would allow a discussion of proposed language and an informal vote, if needed. Mr. Randels suggested the Commission go through Draft #3 page-by-page and asked Mr. Toews to alert the Commission when it reaches points covered under his Additional Proposed Revisions document. Planning Commission Minutes, April 14, 2005 ! Page 5 . . . Referring to Jerry Gorsline's written comments, Ms. King suggested a change to 19.05.010(D), asking that "fish and wildlife" replace "wildlife" in the phrase "Protecting unique, fragile and valuable elements of the environment, including wildlife and its habitat." There being no objection, Mr. Toews agreed, noting that he had not caught this one previously. Under 19.05.020(D), Ms. King suggested that, "Minimize adverse impacts" become "Avoid or minimize adverse impacts...." Adding that as Mr. C10w points out, this would likely apply to many, if not all, of 19.05.020(8)(A) and (B), Mr. Toews said this would be a fine change. Mr. Randels suggested the 19.05.020(10) definition of Director be alphabetized. Mr. Toews recommended striking #10 and retain its placement alphabetically under #21. Mr. Randels moved that in 19.05.020(\7) and (27) the word "materiaJly" should be inserted before the word "altered" so that it reads, "if materially aJtered...." Ms. Thayer seconded the motion for discussion. Mr. Randels explained that as written, it prohibits any change or aJteration no matter how miniscule. He does not want the definition to express that critical habitat could not be altered in the slightest. He would like it to be able to be altered slightly, just not altered materially. Mr. Toews said that the existing language is derived from the Washington Administrative Code guidelines. Mr. Randall said it is the impact that would be of concern, not necessarily the amount of alteration. Mr. Toews suggested reading these defmitions in conjunction with the defmition of "alteration" in 19.05.020(3). With Ms. Thayer calling for the question, there were two votes in favor and three against. The motion did not carry. Mr. Toews agreed with Ms. King's observation that the word "endangered" was not among the Definitions and said that while the term Endangered Species is used throughout the ordinance and there is reference to the Washington Department of Fish and Wildlife Priority Habitat and Species Database, it is not specifically defined. There was also support for including "threatened," and other similar terminology. Under 19.05.020(32), Mr. Toews said a defmition of the term "hydrophytic" would also be added. Ms. King, under 19.05.020(35), relayed Mr. Gorsline's suggestion to make the "mitigations" defmition consistent with the Washington Administrative Code 197-\1-768, which does not include the phrase "a process used to reduce the severity of impacts...." Mr. Toews said this is not a defmition that we would be mandated to include in the Critical Areas Ordinance, but the question is whether the phrase undermines the list that follows. He said he believes the intent was to add clarity rather than confusion. There was no action by the Commission to make any change. Mr. Randels expressed concern about the 2"" sentence under 19.05.020(42) "practicable alternative." He does not like the policy that "It may include using an area not owned by the applicant which can reasonably be obtained..." and believes there are other alternatives, such as mitigation banking. Mr. Randall explained this is referring to off-site mitigation and he offered to try to provide the Commission a better understanding of situations where it would be used. Mr. Kelery pointed out areas in the document where the term "practical aJternative" exists: 19.05.040(B)(2) line 12 on Pg. 18, which has been deleted, and 19.05.110(D)(5)(f)(i). Mr. Randels suggested deleting the defmition, because there is no relationship to the rest of the ordinance. Mr. Toews challenged that it has no relationship to 19.05.\I0(D)(5)(f)(i). Mr. Randall noted that the two referenced sections are situations where probably the highest protection standards apply. Mr. Randels noted an inconsistency between ]9.05.020(52) and 19.05.040(D)(\Xd) as they refer to trees with a diameter of four inches and ten inches, respectively. Mr. Toews agreed they should be consistent at six inches. Planning Commission Minutes, April 14, 2005 / Page 6 . Mr. Toews noted that at 19.05.020(59), Staff would replace the defmitions of "Top of Slope" and "Toe of Slope" as was proposed in Exhibit D-1, Potential Additional Revisions. Also, a defmition of "wetland hydrology" wonld be added as 19.05.020(66). Under 19.05.030(B), Mr. Toews noted in Exhibit D-1, Potential Additional Revisions the addition of "state and federal" governmental agencies. Mr. Randall pointed out that at 19.05.030(D), "EPA" should be "SEPA." Mr. Toews called attention to other Exhibit D-l, Potential Additional Revisions as follows: 19.05.040(D)(\)(e), which proposes to strike Item (iii), because it is duplicative of Item (e) above; 19.05.040(D)(\)(h)(i) where there was an erroneous reference to setbacks instead of buffers; 19.05.040(D)(\)(i)(i) and 19.05.050(A)(2)(a) which involve rewriting of the sentences; 19.05.050(d)(5) a revision to clarify the standard of review upon appeal. Ms. Thayer reminded that the Commission would be acting on Nancy Dorgan's suggestion to address the "no net loss issue" when it discusses 19.05.050(E)(I) at the next meeting. Ms. Thayer called attention to Exhibit 1).1, Potential Additional Revisions of 19.05.050(G)(\), which was modified to clarify who may appeal. Mr. Randels read this as saying that if you are entitled to receive notice you are aJso entitled to appeal. He envisions a situation where a broader group should be notified of something and be given a chance to participate in a public hearing through such notification, but might not have sufficient interest to be a party entitled to appeal a decision. Mr. Emery thought there was a zone of 200-300 feet, which Ms. Hersey said is not the case- anyone can appeal. . Ms. Thayer agreed that sometimes the impact might be significant enough that it might be appropriate to notify a larger area. In that situation, she believes that those in the larger area be entitled to appeal. Mr. Randall pointed out that the Critical Areas permits are unique in that they are not subject to a hearing; while the public might know something is being proposed and they have a description of the proposed action, they can fmd out more information if they request it, but might not know anything until there is a decision. Because of the technical nature of Critical Areas, there might or might not be any concern expressed until the decision. Notices are typically going to those within 300 feet. It would be a rare occasion that the City would expand this range - such as a City project that would affect a large drainage. He does not recall any appeals of the Critical Areas Ordinance. Mr. Toews reminded that there are provisions in Chapter 20.01 for optional additional notice to expand the universe of potential appellants. The existing language addresses the actual versus constructive notice. If you are entitled to receive notice and did not get it for some reason, you would still be able 10 appeal. The Commission felt the existing language was sufficient. Ms. Thayer reviewed the next change as proposed in Exhibit D-I, Potential Additional Revisions to 19.050.060(A), to clarify that if your whole subdivision is not in the ESA or Critical Area, you still need to comply with the standards. Mr. Randels asked about the phrasing in 19.05.050(G)(2). He asked if the City's approval is the fmal resolution. In looking at the wording, Mr. Toews thought the problem is the use of the word "approval," which he suggested be changed to "appeaJ." Mr. Randall explained that the change as proposed in Exhibit D-I, Potential Additional Revisions to 19.050.060(A). This change just clarifies that if your whole subdivision is not within the ESA or critical area, you still need to comply with the standards. . Mr. Toews explained the changes as proposed in Exhibit D-I, Potential Additional Revisions to 19.050.060(A)(\)(a) through (t) were meant to provide greater flexibility in terms of the size of lots, Planning Commission Minutes, April 14, 2005 / Page 7 . not preclude the creation of smaller lots as long as the density remains the same and the impact to the critical area is reduced. The revisions change all the 9,900 square foot references to 10,000 to make it consistent with the breakouts used in the zoning code for density. He noted the 9,900 pre-dates the zoning. It is now cast in terms of maximum density rather than minimum lot area. However, if you want you can have 2,500 square foot lots and dedicate the entire critical area as common open space with restrictive covenants governing it, but what is more important than the actual lot size is the dwelling unit density on that development site. Mr. Randels asked whether this language covers someone who owns more land than a multiple of 10,000 sq/ft but less than 25,000, so they own 2.5 aJlotted lots and decide that they want to develop two of them and sell the extra 5,000 square feet. If later the purchaser of 5,000 says they want to build a house on this and is told they do not have enough land, they may claim that they are being precluded from some economic use of their property. Ms. Thayer asked whether the R1 zoning prevents this. Ms. Hersey noted that if you own two 50x100s, it is now one lot. Mr. RandaJI said that if someone tries to sell one of those 50xl00 parcels, the assessor would not record it. It could still be sold, but the assessor would reject it as an illegal transaction. You would first need to formally have something you can sell and it needs to comply with zming. Mr. Randels then asked about the grandfathered reference to an ordinance from 1992. He understood this provision as saying anything prior to this ordinance is grandfathered. Mr. Toews clarified that reference is in the current code and it relates back to the initial adoption of the City's critical areas ordinance in 1992, but this is no longer needed. . Ms. Thayer reminded that under Potential Additional Revisions, Exhibit D-I, under 19.05.070(C)(\) the fIrst sentence: "Any development not connected to sanitary sewers that is located in a critical aquifer recharge area." would be stricken and the word "required," which was inadvertently omitted, would be added. Under 19.05.070(D)(2)(b and c) related to above-ground tanks, Mr. Randels asked if this should be limited to hazardous liquids. Gas tanks, which are sort of exempted by the last sentence in subsection C, might more appropriately belong in a main section. Subsection D(2)(c) seems to exempt propane and heating oil. Mr. Randall asked if underground storage facilities are defined and, if not, maybe it should be clarified there what is being regulated. Mr. Toews clarified that the concern about subsections D(b and c) is the requirement for catchment areas for tanks that did not hold materials that would be contained in such an area, like propane. Mr. Randels concurred and said while propane is exempted there might be other tanks that hold gases, which could not be held by this "coffm." He took this to mean that tanks, wherever they are found, are regulated. He assumed that if he installed an oil tank, whether below or above ground, that someone would regulate it. Ms. Thayer agreed that underground tanks should be included under definitions because underground tanks could include water catchment too. Mr. Toews pointed out that these standards need to be understood in the context of Item D, Performance Standards for Development. He believes this might be partially addressed under what constitutes "Regulated Development" under C(2), but he agreed to review C and D and to ensure the use of consistent terminology and clarify that we are not talking about water storage tanks. . Ms. King relayed Mr. Gorsline's comments on Section 19.05.080(A), which says, "These regulations are intended to provide reasonable measures to protect and conserve the habitat of certain fish and wildlife species...." The recommendation was that the qualification "certain" be deleted. In response to another suggestion to include under Subsection B(\), the word "Habitat," so that the second sentence Planning Commission Minutes, April 14, 2005 ! Page 8 . starts with "Habitat and species of local significance...." there were no Commission objections. Under Subsection B classifications, she also suggested adding "Feeder bluffs and the marine near shore habitat (the area from extreme low tide to the mid-to the ordinary high-water mark) and associated vegetated marine riparian areas." Mr. Randall said he believed Mr. Gorsline's comments were made prior to Draft #2, but he didn't believe he or Mr. Toews would have any objection to adding this. Mr. Randels mentioned that Section 19.05.080(E)(I) and (3) talk about development in or adjacent to areas identified as habitat for these categorized species. He wonders whether "adjacent to" means directly abutting, within a buffer. The previously discussed 500' range for the heron seemed very appropriate for rural conditions but not necessarily for urban; he now wonders whether the words "adjacent to" bring that 500'range back into the City limits. Mr. Randall provided examples of habitat management plans, such as the eagles at Chinese Gardens. Different species have different tolerance areas and, not necessarily buffers but areas of influence where the Department of Fish and Wildlife is concerned that certain activities such as construction might disturb animals during nesting time. In these cases, State agency staff work with the property owner to prepare a management plan. Mr. Toews said the difficulty with fish and wildlife habitat conservation areas is that the mitigation recommendations derive from the habitat management plan, which includes the buffers. You do not know what the buffer is until the habitat management plan is prepared. To limit the appropriation of habitat management plan for development sites only containing the identified species would mean that you would not require any habitat management plan in a host of situations where you probably should, but you wouldn't be sure until after it was prepared. . Mr. Randels said he assumes that the developers of the Tree House project either knew or somehow were advised of the existence of the pair of nesting eagles some substantial distance from their property. Mr. Randall estimated it is within approximately 1,000 feet. Mr. Toews said it is irrelevant, because it was a project subject to SEP A - where this matters is where you have lot or lot incrementaJ development. Mr. Randels said he understands that the owner of a lot adjacent to the Tree House would be in a critical area and would have had to have hired somebody to do this plan that goes beyond what anyone building a house would reasonably anticipate. Mr. Randall posed a situation less complicated than that - a person wanting to build a garage. When anyone applies for a building permit application, you fill out a criticaJ areas checklist and look up on the maps to see ifthere are any criticaJ areas of concern. In this case, given the nearby eagle nest, Staff contacted Fish and Wildlife staff. He believes the property owner did their own report, but worked with the Fish and Wildlife person who provided a plan for them. If there isn't State agency staff - and typically it is for delineating wetlands or designing the construction of a house on steep slope - then you have to get a private consultant to do it. Ms. Thayer asked if a management plan would be needed for a permit for a new roof. Mr. Randall responded that it would depend on the situation. Obviously, if water is pouring in through their roof, preventative action would be allowed, but if it is a total re-roof and the property could postpone the work for two months, then State staff might propose waiting until a less critical time. Mr. Randels questioned the need for the language in Subsections E(I) and (3) if Fish and Wildlife has ample authority. Mr. Randall explained that this is an existing condition, but language was moved from performance standards and split into the standards for terrestrial and marine habitats. For both there is reference to habitat management plans, but under different circumstances. . Mr. Randels clarified that on the ground, a management plan is really an introduction and a handshake. Mr. RandaJl said not in all cases; if we were talking about the Laurel Heights - a 10-15 acre subdivision of 52 units - Fish and Wildlife is not going to come and give you a handshake. But somewhere between a garage and a full subdivision, you cross over to doing a habitat management plan. He says Staff has to apply its judgment to the impacts to every day. Planning Commission Minutes, April 14, 2005 ! Page9 . . . Mr. Randels said it is unfortunate that we must write something that we know is not actually going to be fulfilled in many instances. If it just provides the authority but does not require it, some may claim arbitrary enforcement. Mr. Randall explained that somewhere in the beginning of the code it gives the administrator the authority to waive or not to require all the application materials as specified. Mr. Toews noted that the language Mr. Randall referred to is in Section 19.05.040(D)(I)(t) Waivers and Special Reports, Pg. 21. He also confirmed Mr. Randels' assumption that it is written that a habitat plans is one of the special reports. Ms. King referred to 19.05.080(G)(4), and relayed the recommendation from Mr. Gorsline that a 50- foot limit be placed on buffer reduction. Ms. Thayer suggested leaving this to the discretion of the Director concerning best possible available science. Several other Commissioners concurred. Ms. Thayer reminded about the modification under Potential Additional Revisions, Exhibit D-I, under 19.05. 1 00(d)(2)(d)(ii). It would now say, "All development shall be designed to minimize impervious lot coverage (e.g., under structure parking, multi-level structures, etc)." Mr. Toews explained that changes to 19.05.11O(B)(4) were intended to clarify language found in the balance of the wetland section that makes reference to "point totals," which are derived from the rating using the Wetland Rating Scale for Western Washington. It also explains the rating scheme. Mr. Randels noted that a previous subsection, 19.05.110(B)(I), reads, "Designated wetlands may include those artificial wetlands intentionally created from non-wetland areas to mitigate conversion of wetlands," He suggested adding after the word "conversion" the word "or compromise." The purpose being that it is clearer that the mitigation of using a manmade wetland Can mitigate either the conversion, that is the elimination of an existing wetland, or its compromise. Mr. Toews would disfavor this simply because the defmition and that terminology used is drawn explicitly from RCW 36.78.030 under defmitions of wetlands under the Growth Management Act. Mr. Randels responded that just because the State writes a statute that might be flawed, does not mean the City has to parrot it. It seems if we are going to use best available science, we ought to be able to mitigate both for compromise and for conversion. Ms. King agreed that the whole ordinance is not just talking about converting, but preserving the functions, not in compromising. Mr. Randels further said that leaving the language there would be an incentive to convert rather than compromise. Mr. Toews noted that if the Commission approves this change, it would be essentially approving the change throughout. Staff would need to make the language consistent throughout 19.05. Ms. Thayer moved not to make the proposed change to 19.05.110(B)(1), but the motion failed with no second. There was instead support for Staff flagging the other references and bringing these forward to the Commission. Mr. Randels pointed out that in 19.05.\I0(B)(2)(a)(vi), there is reference to a human lifetime. He thinks this should be changed to 75 years. There was Commission support. Referring to 19.05.110(D)(4), Mr. Randels asked to clarify whether all categories of wetlands could be used for retention and detention under the strict guidelines? Mr. Clow confIrmed this and said this is not changing the way the City deals with this now. Referring to 19.05.\I0(D)(3)(ii), Mr. Emery noted that it says, "Full compensation for the loss of acreage and functions of wetland and buffers shall be provided..." and asked whom the compensation refers to - the property owner? Mr. Toews confirmed this and said this refers to compensation for the impacts that are a result of development. Ms. Thayer reminded about the modification under Potential Additional Revisions, Exhibit D-I, under 19.05.110(E)(5)(a), which Mr. Toews explained as addressing a redundancy with the previous table, which factors land use intensity already. Planning Commission Minutes, April 14, 2005 ! Page 10 . . . Mr. Randels referred to 19.05.110(F)(4) "Preference of Mitigation Actions." It references restoration, creation, and enhancement. It seems to exclude items in the mitigation prioritization concept, as he understands it, namely off-site mitigation and mitigation banking. He believes items (d) and (e) should be added to the listing, so that it is clear that is the priority list that we think ought to be established. Mr. Randall mentioned having attended a conference on mitigation banking and speaking there with a presenter from King County about a section from their code. He thought it was organized in a helpful way; it defined mitigation and had basically the existing list and then had another section that said if you cannot do the one above, then off-site mitigation is the next option. Mr. Randall believes this would answer the question and suggested possibly reformatting what the City has to follow that model and using the same methodology for fish and wildlife habitat area recommendations. Mr. Toews said the basic problem in this draft is the inconsistency of language between that F(4) and in F(2). Also, F2 does not mention providing substitute resources, which might be an oblique reference to mitigation banking. These two sections are inconsistent. There was Commission support for following Mr. Randall's suggestion and see if the King County solution would work. Mr. Randels suggested the Commission go on record as being in favor of the concept of mitigation banking as part of best available science, which Mr. Randall said is referenced under F(9) on Pg. 63. Mr. Randall reminded about the modification under Potential Additional Revisions, Exhibit D-I, under 19.05.110(F)(9)(c), which allows mitigation banking to go outside city limits. It was pointed out "my" should instead be "may" in this proposed revision. Ms. Thayer reminded about the modification under Potential Additional Revisions, Exhibit D-I, under 19.05.170, which repeals and replaces the existing severability clause. Mr. Toews explained that the revision of 19.05.180(B) replaces the "owner" being considered for an exemption from special assessments rather than the "property" he/she owns. Ms. Thayer moved to continue the hearing to April 28 at 6:00 p.m. The motion was seconded. All were in favor. VI. UPCOMING MEETINGS 4121/05 - Open Record Public Hearing - Adult Entertainment Facilities Ordinance. 4/28/05 - Open Record Public Hearing - Amendments to Code Provisions for Manufactured Homes; Defmitions of Duplexes, Triplexes, and Fourplexes 5/12/05 - No scheduled items VII. COMMUN1CA nONS - There were none. VIII. ADJOURNMENT Ms. Hersey moved to adjourn the meeting; the m06cconded. All were in favor. n" m~"" ,",d""""," ,m ~/ ~ Q ~ .b~~ /rge Rand s, Chair Sanders, Meeting Recorder J Planning Commission Minutes, April 14, 2005 / Page II