Planning Commission

RECORD OF PROCEEDINGS OF THE PLANNING COMMISSION CITY OF BELLINGHAM, WASHINGTON THURSDAY PUBLIC MEETING 7:00 P.M. August 27, 2015 CITY COUNCIL CHAMBERS Video-taped www.cob.org CALL TO ORDER: The meeting was called to order by Garrett O'Brien, Chairman of the Planning Commission. ROLL CALL: Tom Grinstad, Jeff Brown, Garrett O'Brien (VC), Ali Taysi (C), Phyllis McKee, Steve Crooks and Cerise Noah Present: Garrett O'Brien, Tom Grinstad, Jeff Brown, and Phyllis McKee, Absent: Ali Taysi, Steve Crooks and Cerise Noah Staff Present: Rick Sepler, PCDD Director; Kurt Nabbefeld, Senior Planner; Steve Sundin, Planner II; Kim Weil, Environmental Planner; and Heather Aven, Recording Secretary. APPROVAL OF MINUTES None to approve. COMMISSIONER DISCLOSURES Garrett O'Brien stated that although he was not in attendance for the June 4th work session regarding the Critical Areas Ordinance, he has reviewed the video and staff packet, including the comment tracker, from that date. Jeff Brown disclosed that his wife works with the Critical Areas Ordinance (CAO) on a daily basis, but she did not explain it to him. 15 MINUTE PUBLIC COMMENT PERIOD Wendy Harris commented on public notices issued by the City and the lack of information included in them. She noted that without adequate information, the public is not able to provide valuable comments. PUBLIC HEARING To review and consider the proposed amendments to the Critical Areas Ordinance. STAFF PRESENTATION Rick Sepler spoke briefly to what the City is required to do as it relates to the CAO upate. He provided a brief overview of what has occurred to date. He stated that staff believes the proposed ordinance meets best available science and addresses the statutory requirements. Steve Sundin reviewed some of the minor proposed changes to the CAO. He also pointed out that SEPA was re-issued to account for the changes that were made to the ordinance. Kim Weil discussed the public comments received since the June 4, 2015 work session along with some of the main revisions that are being proposed. Final Copy - 1   All wetlands, regardless of size will be regulated by the City. She clarified that although the City has not previously regulated wetlands under 4,000 sq. ft. in size, the Army Corp of Engineers and/or Department of Ecology has always regulated them.  All mitigation ratios are now consistent with the guidance provided by the Department of Ecology.  Language has been added to further clarify Minor Critical Areas Permit.  Essential Public Facilities was moved from Minor Critical Areas Permit into its own separate section. COMMISSION QUESTIONS There was additional discussion on the removal of buffer provision exemptions for smaller wetlands. Staff clarified that the disruption of smaller wetlands has always been regulated by the other agencies, it is just that the proposed change to the ordinance would now require a permit issued by the City. It was explained that all other processes (wetland delineation, mitigation plan and mitigation requirements) remain exactly as they exist today and the review of the permit would be done concurrently with the other agencies. Staff explained that the only additional cost would be for the permit, otherwise all other costs associated with the disruption of the wetland, remain the same. It was emphasized that SEPA and monitoring is required for any wetland disturbance, regardless of size. PUBLIC HEARING OPENED Linda Twitchell, BIAWC expressed concern over the removal of the size based exemptions for wetlands that exists in the current ordinance. She pointed out that not only will this increase the cost of all projects, the mitigation that will be required must be secured before the building permit is issued (if one chooses to utilize the Lummi Mitigation Bank). She also spoke to the different ways the Critical Areas Ordinance could be challenged as it relates to compliance with the Growth Management Act (GMA). She suggested including reasonable use provisions in the CAO to help achieve a balance between the protection of the environment and the need for housing affordability. Wendy Harris explained how she would approach the review of the CAO if she were a Planning Commissioner. 1) Determine what the purpose of the CAO is. 2) Request staff to provide evidence that "no net-loss" has occurred since 2005 in each of the critical areas. She pointed out that although the CAO uses the work "protect", it does not take a protection, but instead a restoration, approach. She also stated that just because the CAO includes State standards, does not mean performance standards are being met. She urged the Commission to not move the CAO forward. Donna Kelleher urged the Commission to not make a recommendation given that three Commissioners were absent and some of the public that wanted to be there, couldn't be. She mentioned that, in her opinion a wildlife biologist should be in attendance to provide some expertise on the functionality of wetlands, especially in our changing climate. Charles Law stated that, in his opinion, the GMA is outdated. He stated that we need to begin to take a look at, not our own growth, but the growth of the species we depend on and the effects that development is having on it. Roger Almskaar commented on the importance of balance between all of the 13 GMA goals. He provided some examples of over-regulation, such as some buffer requirements are too large for smaller properties. He expressed frustration over regulations not being based on science and not including site conditions. He pointed out the GMA requirement related to private property rights. Final Copy - 2 John McLaughlin stated that, according to the GMA, the CAO must be based on best available science. He expressed concern about the lack of non-developer representation on the technical advisory groups that provided feedback to staff on the proposed ordinance. He supports the inclusion of a conservation easement. He pointed out that the exceptions / exemptions included in the draft CAO will continue to comprise the function of the wetlands and will result in serious unintended consequences. He suggested that performance measures be included and he stated that the existing language for mature forests be used in place of the proposed language. PUBLIC HEARING CLOSED COMMISSION QUESTIONS / DISCUSSION There was a discussion about the relation between the Comprehensive Plan and the Critical Areas Ordinance. It was explained that the CAO is an implementing regulation and in order to ensure it is adequate it needs to be able achieve the policies and goals included in the Comprehensive Plan. A couple Commissioners expressed concern that the document was very technical and very little guidance has been received by specialists / experts in the field of environmental protection. Commissioner McKee asked for assurance that best available science has been utilized. Staff indicated which agencies provided feedback on the ordinance, including Department of Ecology and Futurewise. A conversation was held regarding the Department of Ecology's recommendation to accept the language related to the removal of the smaller wetlands exemption. Commissioner O'Brien expressed concern that this does not in fact increase flexibility. Staff spoke to the reasonable use provision and explained why a separate section was not created during this update process. MOTION: Tom Grinstad / Phyllis McKee moved to approve the draft critical areas ordinance along with the additional proposed amendments in the August 20, 2015 memorandum and forward to City Council for their review and consideration. The Commission requested that the additional comments to date be included on the comment tracker with staff responses and forward to Council. There was a conversation about the functions of smaller wetlands vs. the Lummi Mitigation Bank. VOTE: ALL AYES (motion passes 4-0) Commissioner O'Brien would like to see reasonable use section added to the CAO. OLD / NEW BUSINESS - NEXT MEETING: September 17, 2015 - Comprehensive Plan discussion topic. ADJOURNED: 8:45 p.m. Minutes prepared by: _____________________________ Heather Aven, Recording Secretary Minutes edited by Planning Commission members and various Planning Staff. Final Copy - 3