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You are here: Home) Government) Public Involvement) Boards & Commissions) Planning Commission ) MARCH 12, 2009 Minutes

RECORD OF PROCEEDING OF THE
Planning Commission
PUBLIC HEARING
CITY OF BELLINGHAM, WASHINGTON

THURSDAY, MARCH 12, 2009 07:00 P.M.
COUNCIL CHAMBERS

CALL TO ORDER: The PUBLIC HEARING of the Planning Commission was called to order by Tom Barrett - (Chair).

ROLL CALL:

    Commission Members Tom Barrett; Jim Bishop; Sharon Robinson; Judy Hoover; Kurt Baumgarten; and Edie
    Norton

    Commission Members
    Absent Christopher Sahlin

    Planning Staff Members Tim M Stewart,Director
    Kurt Nabbefeld,Senior Planner
    Kim W Weil,Planner II
    Heather M Aven,Secretary
APPROVAL OF MINUTES: February 12, 2009 and February 19, 2009 were both submitted for approval.

MOTION: SHARON ROBINSON MOVED TO APPROVE THE MINUTES FROM FEBRUARY 12, 2009 WITH CORRECTIONS. SECONDED. VOTE: 4-0-2 (BISHOP & HOOVER ABSTAINED)

MOTION: EDIE NORTON MOVED TO APPROVE THE MINUTES FROM FEBRUARY 19, 2009 WITH CORRECTIONS. SECONDED. VOTE: 4-0-2 (BISHOP & HOOVER ABSTAINED)


15 MINUTE PUBLIC COMMENT PERIOD
No testimony given.
    PUBLIC HEARING
    Amend the Multimodal Transportation Concurrency Service Area (CSA) map in BMC 13.70 to incorporate two new annexation areas to the City of Bellingham. The King Mountain Neighborhood is proposed as a new CSA and the San Juan annexation area will be incorporated into CSA # 7.

    STAFF PRESENTATION

    Chris Comeau explained that the City has added a new neighborhood, and the concurrency map needs to be updated to reflect that. He provided some background information on the concurrency program for those citizens that were not in attendance last fall. He stated that transportation concurrency is a state law requirement, and Bellingham requires that it happen during the pre-application phase to ensure that the impacts of the new development can be handled. He pointed out that level of service is measured by “person trips available” and considers all of the modes of transportation in a Concurrency Service Area (CSA), not just the automobile. Chris explained where the concurrency service areas are, and what the three types of concurrency mean for different areas of the City. He stated that a 500 person trip buffer is built into the system, in an effort to avoid depleting the number of person trips available for that area. He explained the process that needs to be followed in order to determine if mitigation steps will need to be taken during development.

    Chris Comeau stated that staff is recommending option 1 in the staff report. He explained that this option creates a new Type III CSA #15, for the newly annexed, 640-acre, King Mountain Neighborhood, states that existing CSA #7 will absorb the 12-acre San Juan/Yew annexation, and allows new text to be added to the plan to cover future annexations. He stated that all of these changes, if approved will become effective on May 1, 2009.

    Edie Norton wanted to know if there was an opportunity for the “type” of CSA to change.

    Chris Comeau responded that when necessary, such as the development of an urban village, adjustments to the map could be made to indicate a change in CSA type.

    Jim Bishop wanted clarification on why each new CSA was automatically a type III.

    Chris Comeau pointed out that the annexations that are likely to happen are all adjacent to CSA that are currently type III; therefore it only makes sense that the new areas would also be type III. He stated that there may be exceptions and that is why the text update indicates “unless the map says otherwise”.
    PUBLIC HEARING OPENED
    No testimony was given.
    PUBLIC HEARING CLOSED

    DISCUSSION

    MOTION: JIM BISHOP MOVED TO RECOMMEND OPTION ONE AS WRITTEN IN THE STAFF REPORT. SECONDED. VOTE: ALL AYES.

    PUBLIC HEARING:

    A public hearing to consider text amendments to both the Lake Whatcom Reservoir Regulatory Chapter (BMC16.80), also known as the Silver Beach Ordinance, and to the Stormwater Management Chapter (BMC15.42); as well as, to consider land use designation changes of Residential zones in the Silver Beach Neighborhood. These changes were initiated by the City Council in conjunction with the adoption and extension of an interim Emergency Moratorium Ordinance (Ord#2008-09-085) for properties within the City of Bellingham's portion of the Lake Whatcom watershed.

    STAFF PRESENTATION

    Kurt Nabbefeld stated that the watershed is a drinking source for over 95,000 people. He explained that data continues to show that the water quality is decreasing at a rapid rate. He commented that this is a highly valued community resource, and acknowledged that it is the City’s duty to protect the health, safety, and welfare of the people and their drinking water source. He pointed out that the Department of Ecology (DOE) has issued a Total Maximum Daily Load (TMDL) mandate for the Lake Whatcom watershed. He explained that the DOE has requested that the watershed begin to act like a forest, and many of the amendments made to the Silver Beach Ordinance strive to accomplish that.

    Kurt Nabbefeld reviewed the public process followed to date. He pointed out that staff has: not only attended many Silver Beach Neighborhood Association (SBNA) meetings, but worked closely with a sub-committee which evaluated the code and reported back to the SBNA. He stated staff also met with the Building Industry Association (BIA) of Whatcom County, the people for Lake Whatcom, the Interjurisdictional Coordinating Team (ICT); as well as, the City’s Watershed Advisory Board. He mentioned that although some of the code changes are more technical in nature, they offer more opportunity for the property owners.

    Kurt Nabbefeld discussed the proposed amendments. He explained one way to meet the mandates of the TMDL study is to increase the percentage of a lot that would be required to remain in a natural forested condition. He also stated that another consideration, in a effort to meet the mandates of the TMDL study, is to impose greater restrictions on pollution generating surfaces. He mentioned that the redevelopment code will provide for stricter policies on non-conforming uses, and that the impervious surface credits have been eliminated. He pointed out that improvements have been made to the definition section, both through consolidation and consistency, and the start of the building season in the watershed has been changed from May 1st to June 1st. Kurt addressed the fact that the watershed boundaries are being updated to more accurately reflect the area that will be affected by the ordinance. He mentioned that staff is considering the possibility of zoning changes when the neighborhood plan is updated.

    Kurt Nabbefeld explained that there are 132 lots that could be developed in the City’s portion of the watershed. He stated that 105 are single lots with single property owners, and the potential for 27 that could be created through sub-division. He commented that the enforcement section has been updated since the staff report was released and explained that this section was taken directly from the Critical Areas Ordinance in an effort to remain consistent. He stated that several citizens have expressed concern over the ability to have a garden, and staff is responding with a proposal that would exempt gardens up to 500 square feet or 5% of the site, whichever is greater. Kurt commented that changes have been made to the stormwater code to make it more consistent with the redevelopment standards.

    Kurt Nabbefeld talked about the different things that staff has done over the years as they relate to the watershed, and he provided a series of maps that demonstrated the decrease in vegetation since 1960. He explained that Lake Whatcom was identified as an impaired water body in 1998 under the federal Clean Water Act; therefore, the Department of Ecology released a TMDL, which mandates Bellingham and Whatcom County to prepare an Implementation Plan to meet the goals of the TMDL. He stated that the DOE has determined that the lake continues to suffers from chronically low dissolved oxygen and elevated fecal coliform; which caused them to establish a TMDL for the amounts of phosphorus and fecal coliform that the lake can receive and still meet the water quality standards. Kurt pointed out that after the TMDL study is released, it is the City’s responsibility to create an implementation plan that will ensure compliance; otherwise, Bellingham could be out of compliance with state permits, as well as the possibility of fines and litigation.

    Bill Reilly presented the stormwater code changes. He reiterated that Bellingham is under a legal requirement to change the way that things are handled in the Lake Whatcom watershed, as it is clear that the existing regulations are inadequate in managing stormwater and preventing fecal coliform and phosphorus contamination of the lake. He emphasized the importance of the properties in the watershed to act like a forest, amidst the lawn and house structure, so the phosphorus is captured and not contaminating the lake. He provided examples of impervious surfaces as being rooftops, concrete driveways, sidewalks, and other obstacles that keep water from getting into the ground. He explained that even though many homes have lawns, grass is only a partially pervious surface as it only allows some water into it and does not do the same thing that a forest does.

    Bill Reilly stated that the ordinance allows for two different methods in which property owners can choose to make their site function more like a natural forest, and mitigate the effects of development. He explained that the Forested Method would consist of retaining, or recreating, 75% of the native vegetation on individual sites/lots. He pointed out that some advantages of the Forested Method include: the limited cost of planting or retaining the forested condition, no engineering requirement for the driveway, and due to the simplicity of the site plan, the permitting process could be easier. He also pointed out that the disadvantages of this method are the restrictions on both the house footprint and the partially pervious surfaces. He also explained the Fully Engineered Method, which would only require 30% of the site be retained with native vegetation. He pointed out that although this method allows for an unrestricted amount of building square footage, a competent engineering review must accompany the site plan and confirm: the soils on site are capable of infiltration, the water will be reused to flush toilets, and a scientific based approach to mitigate the amount of flow, phosphorus, and fecal coliform that runs off the site has been developed. Bill pointed out that a larger footprint for home, and lesser restrictions on a lawn or other partially pervious surfaces are the advantages of the Fully Engineered Method. He stated that, on the other hand, the cost of the engineering and the fact that the engineering report must show that the TMDL standards will be met, could be viewed as disadvantages.

    Kim Weil stated that phosphorus is a naturally occurring element, and is essential for all life, including algae. She pointed out that Lake Whatcom is one body of water that does not require a lot of phosphorus to feed a lot of algae. She also pointed out that when algae decays it uses up dissolved oxygen, which is contributing to the City’s water quality issues. She commented that years of study have proven that development causes water quality impact because of the pathways for pollutants it creates. She explained that a natural forested condition actually cycles the water and nutrients, rather than allowing it to run into the water, by intercepting the rainfall on the canopy cover, by infiltration into the soil, or by evapotranspiration through the vegetation. Kim explained that one of the code changes affecting property owners, is the fact that the site will need to be analyzed by a professional, prior to site design, to find out how the land is currently functioning. She mentioned that when the analysis is completed, it will determine if any restoration will be required prior to development occurring.

    Kim Weil commented that the land use regulations are just one piece of a multi-faceted approach being done to restore the watershed. She listed the other things being done in conjunction with the implementation of new land use regulations and encouraged the Planning Commissioners to consider the significant code changes as a necessity to address the significant problem in the Lake Whatcom watershed.
    PUBLIC HEARING OPENED
    Christina Maginnis, Mayor’s Watershed Advisory Board read from the letter that was submitted into the record by that group. She stated that the Advisory Board is in support of the changes to the Bellingham Municipal Code (BMC) 16.80 and 15.42 as revised. She commented that the Board feels the amendments are a great step forward for the protection of the Lake Whatcom reservoir. She mentioned the Board still feels there are areas that can be clarified further, such as the definition sections in BMC 16.80 and 15.42 being consistent with one another, a more understandable format of the code as it relates to gardening requirements, and providing clarification where possible in the re-development sections of BMC16.80 and 15.42. She expressed the Board’s support for the extension on the seasonal building restrictions, and suggested that additional language be included to specify that September should be used to establish ground cover prior to the rainy season beginning again.

    Jeff Daffron expressed his support for the amendments to the Silver Beach Ordinance. He stated that development cannot continue without consequence. He mentioned that the watershed residents have a responsibility to the rest of the City as stewards of Lake Whatcom. He encouraged the Planning Commission to recommend approval.

    Kris Ungern read from the letter he submitted into the record. He stated that the County has had a building moratorium for subdivisions in the watershed for 5 years, and wondered why the City waited until 2008 to adopt theirs. He commented that, in his opinion, the TMDL study does not document in detail the sources of phosphorus loading into Lake Whatcom, nor does the model appear to address the impacts of erosion or debris flows form upland, non-vegetated during storm events. He expressed his concern about the method and reliability in which the results of the City’s changes will be measured. He stated that since the costs are unknown at this time, mandates should not be forced onto the tax payers. He commented that the proposed restrictions on partially pervious and impervious surfaces seem too restrictive since the development footprint is the same regardless of the lot size. Kris pointed out that if the goal was to restore the area to a natural forested condition, the risk of damage to property from windfall would increase, and yet it was removed from the ordinance. He encouraged staff to clarify the language in the ordinance and consider the comments and suggestions by the Silver Beach residents.

    Myron Wlaznak read from the letter he submitted into the record. He stated that development is the ultimate cause of the deterioration of the water quality in the Lake Whatcom reservoir. He expressed his concern over the scientific and technical flaws in the approaches suggested in the proposed revisions. He stated that in his opinion, the City must implement a workable and cost-effective soil testing plan to verify how the phosphorus moves through the soil types in the watershed and how effective the infiltration process would be. He commented that removing water from the watershed is not a viable option. He suggested that the ordinance contain language that prohibits the City from vacating any right-of-ways that are owned in the watershed, and define them instead as stormwater control facilities/utilities. Myron stated that all regulatory bodies have failed to develop and implement an effective watershed education program, and in his opinion, must be addressed. He pointed out that it is virtually impossible to duplicate the natural forested conditions in the developed portions of the watershed; therefore, he feels that development should not be allowed in the undeveloped areas and the building moratorium should be continued indefinitely. He suggested that acquisition be considered as it relates to the undeveloped properties; as well as developed properties in critical drainage areas.
    He stated that in his opinion, past and current efforts by the governmental groups working on the myriad of issues concerning the Lake Whatcom reservoir, have not been comprehensive, not adequately funded, and not particularly effective. He expressed his support for the changes, but feels that more time needs to be devoted to the amendments.

    Tammie Corrigan requested more time for the Silver Beach Neighborhood to comprehend exactly what the impacts of the proposed amendments would be. She stated that it would be great if those property owners who chose to utilize the Fully Engineered Method when redeveloping or developing their site, should receive a credit on their real estate taxes. She suggested that one way to eliminate some of the phosphorus from entering Lake Whatcom, would be to stop allowing pets to live within the watershed boundaries.

    Wendy Harris expressed her support for the proposed changes. She commended staff for the innovative approach they have taken at addressing the TMDL requirements. She pointed out that the new regulations would be site specific, which means property owners are no longer held to a single standard, they have the opportunity to develop to their individual preference. She stated that although there may be concerns with the drafted proposals, it is important to remember that the TMDL is mandating the City to adopt an adaptive, implementation strategy. She suggested that the Silver Beach ordinance be reviewed each year to determine what is and what is not working and update as new science and technology is available. She also suggested that the ordinance contain a flow-chart that would help to illustrate how everything is connected to each other, staff consider creating a general statement that states the importance of reading the stormwater chapter of the BMC; as well as, consider adding a hyperlink to the DOE site for easier reference to their stormwater manual.

    Steve Hood, Department of Ecology stated that he was part of the TMDL study that was done on the Lake Whatcom watershed. He acknowledged that the code amendments being proposed are very stringent and explained that the stringency is necessary due to the standards set by the State as it relates to the protection of lakes. He pointed out that the impact from development must be reduced dramatically. He clarified that the 94% reduction does not pertain specifically to the phosphorus, but to the impact development has had on phosphorus. He stated that, although the DOE could support the proposed ordinance, staff should consider a stronger position for those who choose not to develop or redevelop their site, so they also can become aware that the impacts of their land cover must be reduced. He pointed out that even if no further development occurred in the watershed, the existing homes would still need to contribute to the necessary 85% reduction in phosphorus.

    Jim Bishop wanted to know if it was possible to supply homeowners in the Silver Beach Neighborhood test kits so they could test water after a big event.

    Steve Hood responded that it is easy to contaminate a sample, holding times are stringent, and it requires the use of acids to preserve the samples. He pointed out the importance of remembering it is highly variable over time, and that is why the TMDL numbers are phrased over a year long time period, not just one specific event. He suggested that rather than “testing” the water, citizens could assume there is an increase in phosphorus if the color of the water is muddy looking.

    Kurt Baumgarten asked Steve to comment on the relative contributions that different land use types have on loading, and what resources where considered when developing the TMDL.

    Steve Hood replied that a forested area contributes the least to the loading levels, because there is less water that comes off of forested land. He explained that, for this area, it would be typical that 30 – 50% of the water would be captured in the tree canopy, and never reach the ground. He stated that if all of the developed land classes were contrasted against all of the forested land classes, across the entire Lake, 10% more phosphorus per acre is produced in the developed areas.

    Tom Barrett asked Steve to comment on what is happening in the County’s portion of the watershed.

    Steve Hood responded that Whatcom County currently requires 65% of the natural vegetation be retained or restored on each site.

    Frank Parker expressed his concern over the language relating to common ownership. He stated that he owns 19 lots with 2 separate deeds, and according to his understanding, the City would require that he convert it all into one lot. He commented on the filters that the City placed throughout the neighborhood, and stated that no one is certain if they are succeeding at removing phosphorus from the Lake. He wanted to know why the City chose to use filters instead of chemicals that don’t hurt anyone, or another process to remove the pollutants. He expressed his frustration over the burden being placed on the property owners. He stated that one way to help the situation is to put in a storm-sewer with the money from storm-water fees paid by the 95,000 people who drink the water. He stated that the neighborhood needs more time to understand the ordinance and the affects it will have on the property owners.

    Sherry Gallant described what her property looks like at this time and some of the modifications that she would like to make to it, in a effort to become more “green” and sustainable. She commented that although the amendments are hard to understand, the two different re-development options will allow for her family to build what they want on their property. She expressed her concern over the cost of the Fully Engineered Method, and wanted to know if the engineer reports would last over a period of time in the event the re-development would have to be phased. She also mentioned that a property owner that participates in the full mitigation of stormwater should receive credit via a reduction in taxes or stormwater fees. She expressed her support for the amendments to the ordinance and encouraged the Commission to recommend approval.

    David Jefferson commended staff on their willingness to meet with the association, and answer questions in a timely manner. He stated that a strong effort has been made to educate the neighborhood about the content of the draft ordinance. He commented that the people that are really interested are attending the meetings and reading the materials, and expressed his concern for the remaining 1300 people in the neighborhood. He requested additional time to talk with those neighbors, and agreed to produce a flyer and go door to door and invite those citizens to a presentation similar to what was given to the Commission.

    Sharon Robinson wanted to know what the general sense of the neighborhood is.

    David Jefferson replied that many feel concerned that the responsibility of the water quality is falling to the property owners. He mentioned there has been concern expressed about the cost, what do the restrictions mean, and will their rights be violated. He stated that, on the other hand, some wonder if the restrictions are enough and if there is more that can be done to protect the water quality.

    Edie Norton commended the thoughtfulness of the questions submitted by the SBNA and commended staff for responded so quickly. She wanted to know if those questions really reflect the concerns of the neighbors, or if several new questions would be produced.

    David Jefferson stated that most questions have been asked, so he is unsure that many new ones will come about; however, he is concerned about the timeliness of getting the answers out to the community members. He stated that one method that is currently being done, is placing the information on the website.

    Jim Bishop recommended that David broadcast the Planning Commission e-mail address at the SBNA meeting and encourage the neighbors to submit any written comments before the next meeting.

    Kurt Baumgarten wanted to know if the same presentation would be done before City Council.

    Kurt Nabbefeld replied that it would be done during their public hearing.
    PUBLIC HEARING CLOSED

    BREAK – 10 minutes

    Kurt Nabbefeld described the process that City Council follows and stated that March 26, 2009 is the deadline to hold another Planning Commission meeting so that the 30 day legal notice requirement can be met for the Council meeting.

    Tom Barrett requested that staff attend the Silver Beach Neighborhood Association on March 19, 2009 and make the same presentation they did tonight, and requested the SBNA personally invite each of the neighbors to their meeting as a final public outreach.

    Edie Norton stated that in her opinion, a long-term effort in education would be important to consider developing.

    Jim Bishop would prefer a public meeting versus a worksession to allow citizens who may have an opinion to share after the SBNA meeting on 3-19-09, to come forward and speak to the Planning Commission before a recommendation is made.

    Kurt Baumgarten stated that he is in favor of both a worksession and leaving the written comment period open, to allow a venue for those comments Jim was referencing.
    Sharon Robinson asked staff to review the City Council timeline and process to ensure that an additional meeting would not delay a recommendation going forward in a timely manner.

    Judy Hoover stated that she was in favor of a worksession over another public meeting.

    DISCUSSION
    Jim Bishop requested that staff consider three questions for the worksession:
    1. As we recreate the forested condition in the Silver Beach Neighborhood, are we are setting ourselves up for a problem if there is ever a drought in the future?
    2. Would the code allow for half of the foundation to be “typical” and the other half to be on posts and beams, in an effort to leave some of the soil in a duff condition?
    3. Since a lot of the same things will need to be done on the various lots, and the soil conditions are the same throughout the neighborhood, could different options be created that would reduce the cost of engineering?

    Kurt Baumgarten wanted to know if the code amendments would allow for a “pin” foundation.

    Bill Reilly responded that a “pin” foundation could be considered by a property owner who is considering the Engineering Method for development or redevelopment. He stated that the City has adopted the LID manual and has access to the MP’s in the DOE’s manual, which would all be considered for any project that would be completed in the Silver Beach Neighborhood. He also responded to the concern of the engineering cost, and stated that unfortunately not all properties are the same in the neighborhood, so it won’t be an easy fix.

    Edie Norton suggested that the cost of Fully Engineered Method should be available, at least an approximation so the neighbors could consider their option before the engineering began.

    Bill Reilly commented that the cost will be widely variable due to the different conditions on each site, and what the property owners want to do to their property.

    Sharon Robinson suggested a list of engineers be provided to the owners, so that a cost estimate could be given by a professional who does that type of work. She also wanted to know if the storm-water fees that many citizens are paying could be applied to the pilot projects or to the neighborhoods in the watershed. She also wanted to know if it would be possible to reduce the storm-water impact fee if the Fully Engineered Method is chosen.

    Bill Reilly replied that storm-water fee reductions, for those individuals who are using low-impact development techniques, already exists. He pointed out that the portion of the storm-water fees that are applied to capital development have been spent in the Lake Whatcom watershed for the past eight years. He clarified the difference between these fees and the acquisition fees the City uses to purchase land.

    Kurt Baumgarten commended staff for the flexibility that they have included in the amendments.

    GENERAL BUSINESS

    Planning Director’s Report – Tim Stewart
    No Report

    Staff Discussion


    Commissioner Discussion

    ADJOURNED: 10:00 p.m.

    NEXT MEETING: March 19, 2009 in City Council Chambers


    Minutes prepared by:

    _____________________________
    Heather Aven, Recording Secretary

    Minutes edited by Planning Commission members and various Planning Staff.

    This is a digital copy of an original document located at Bellingham's City Hall. The City of Bellingham specifically disclaims any responsibility or liability for the contents of this document. The City of Bellingham does not verify the correctness, accuracy, or validity of the information appearing in this document.
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