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HomeMy WebLinkAbout11-03-2004 MINUTES OF THE PLANNING COMMISSION MEETING NOVEMBER 3. 2004 The rescheduled meeting of the Planning Commission was held on November 3,2004 at 7:00 p.m. in the Council Chambers of the Auburn City Hall. Those in attendance were as follows: MEMBERS: Dave Peace, Ronald Douglass, Renee Larsen, Yvonne Ward, Kevin Chapman, Joan Mason and Judi Roland STAFF: Paul Krauss, David Osaki, Jeff Dixon, Tiffan Goodman and Patti Zook The meeting was called to order by Vice Chair Peace. APPROVAL OF MINUTES · Minutes of September 8, 2004 Meeting · Minutes of October 5, 2004 Meeting Commissioner Douglass made a motion, seconded by Commissioner Ward, to approve the minutes. PUBLIC HEARING · Critical Areas Ordinance Chair Peace opened the public hearing. Community Development Administrator Osaki provided a background to date on the subject. Best available science is the basis for the proposed ordinance. This is the third public hearing before the Planning Commission. Previous hearings were August 3 and September 8. There has been a significant amount of public testimony. At the second Planning Commission hearing, it was requested that staff present a 'best available science white paper'. Staff also was expected to develop a matrix to identify the key issues and he explained how the matrix is organized. Additional written testimony received as of October 28 is contained in the agenda packet. A range of issues in the matrix are related to buffers. Some common themes or issues are in the matrix. Planning Commission spent some time on exemptions at the previous meetings. Items 1, 8, and 15 are related. Staff recommends that the exception on issue 8 not be included, and proposes to remove the exemption on wetland. He read the new language for item 15, wetland replacement ratios. The consultant is present to answer questions. Commissioner Ward wondered what 'function and value' in the Pilchuck decision means? How is this defined? Mike McDowell, MSC Environmental, explained that function and values in wetland can be quantified by a number of means such as the difference in function and wetland flood storage, water quality storage, etc., and can be looked at and evaluated by established methodologies. Commissioner Douglass referred to previous discussions about 1/16 of an acre, and wanted to confirm that staff now is deleting reference to minimums. Community Development Administrator Osaki said yes because value and function must first be evaluated before deciding if mitigation is necessary or if the wetland can be filled. The Growth Management Hearings Board decisions say you need to protect the value and function and must do value and function test first. Community Development Administrator Osaki said the buffer averaging concept is to give more latitude as how to buffer critical areas. Different jurisdictions have different buffer averaging and he gave examples. The concept is that it could go less than 100'. If you maintain the average, then it would be acceptable mitigation. If you have a minimum, how far can you reduce the 100' for example? It allows for various buffer sizes rather than maintain the same buffer. Commissioner Douglass wondered who makes the decision on the value of a wetland. Community Development Administrator Osaki replied that in general, if you have a critical area as part of a - I - MINUTES OF THE PLANNING COMMISSION MEETING NOVEMBER 3.2004 development proposal, the applicant will have a consultant prepare a wetland report, the report is submitted to the City for review and the City will concur or disagree. This is the way it's been handled through the SEPA process in the past. Lengthy discussion occurred related to an approved consultant roster list and clarification that the City does not maintain a specific list of approved consultants for wetland studies. Mike Morrissette, Chamber of Commerce President, appreciates the opportunity to speak about the topic. He"was asked to look at the proposed CAO from a different angle and its possible impact on Auburn's economy. He has experience in the area of economic development. Businesses pay 70% of all property taxes and create family wage jobs and contribute to human services agencies. Auburn is in a competitive game and some adjacent cities are moving more quickly such as Kent, Renton, Tukwila and Federal Way. When talking with prospective businesses, their concern is the permit review process and how time consuming or costly it might be. Permits such as clearing or grading and if wetland, looking at mitigation, Fisheries, Forestry and DNR, the Tribe, etc. Their concern is the time to get permits and open business. A concern is a one size fits all method versus a case by case basis to deal with particular sites. There is a concern about generic measures being used. The Chamber wants the Planning Commission to look at the least restrictive measures and add flexibility, to look at value and function that is not too restrictive. GMA has a no net loss feature, but this can be taken to the extreme. The Chamber agrees with staff language on no net loss and gave an example of building Emerald Downs and its relation to Mill Creek. Economic development is to promote the retention and recruitment of businesses and jobs, encourage growth. He urged the Planning Commission to accept the staff recommendation which is reasonable. Christopher Wright, 5711 NE 63rd Street, Seattle, is a representative of Raedeke Associates, and sent previous correspondence to the Planning Commission. He is a qualified consultant and has been working with staff or 14 years on various wetland projects in Auburn and other regions. Their main issue is buffer averaging, how to determine the appropriate buffer, necessary flexibility, and maintain protection of sensitive areas. On the matrix, item 3, stream buffers he has an issue with this. He read phrases from the October 2004 Journal of Natural Resources, which speaks about stream differences. The Planning Commission has received a tremendous amount of information. The best available science doesn't paint a bright line; it is entirely dependant on specific areas and its functions. By allowing the most flexibility as possible, this provides greater protection which meets the goals of GMA. Scientist like to look at each sensitive area on a case by case basis versus an arbitrary buffer. Current properties of 150' buffers are an arbitrary number. Low quality wetlands should be evaluated for function. He recommended that the Planning Commission consider a fee in lieu of mitigation versus trying to create other small isolated wetland pockets. Mr. Wright sees wetland mitigation banking in the future; however, currently there is no way do this. The Department of Ecology has established some banking, but in relation to roads. He recommends that the City use its wetland mitigation sites and others, taking portions not mitigated and applying funds to improve those. Commissioner Ward mentioned the three different studies that meet best available sciences. Mr. Wright said that even within the best available science document buffers as narrow as 25' can protect salmon habit. Chair Peace asked Mr. Wright, instead of identifying a specific buffer, he spoke about reviewing on a case by case basis for suitable buffer. Doe he foresee the cost or time increasing? Mr. Wright said under the current code, there is no standard buffer. Each request requires the consultant to make a recommendation to staff who review and agree or disagree and reach a middle ground. A prescribed buffer ties hands of developing the community and city. Alan Keimig, Keimig and Associates, commented of the need to allow latitude and flexibility. No net less and function and value is a better way to proceed. Mr. Keimig is looking at the overall theme and used seismic activity as an example. It doesn't make sense to have prescriptive buffers along a stream bed - 2 - MINUTES OF THE PLANNING COMMISSION MEETING NOVEMBER 3. 2004 when something else is a better solution for all. There should be latitude in how to address solution to develop or protect an area. Chuck Turbak builds industrial parks in Auburn. Two issues of concern are the economic impacts as mentioned by Mr. Morrissette and the other concern is environmental. He's very environmentally sensitive. Developers like to build square buildings. As a developer makes a proposal, he first looks at what can be put on a parcel, how the development will fit. This brings up the issue of buffer averaging. If the requirement is 100 feet, need to figure out a way to square off the site for development and determine the best use of the property. If he can't do it, the developer will move to another City. Developers take the path of least resistance. He loves developing projects in Auburn and now they are looking at 'tough' sites. There is not much land left for development and this has an economic impact. Plenty of property can be mitigated and wetland banked. He spoke about a pocket of wetland in a great site and you can't develop the site. Their hope is flexibility because not having rules is foolish. He spoke of the ability to interpret the rules and flexibility is an important component for a developer. If a developer doesn't have flexibility he will walk away from the site. He complimented City staff on working with him in the past. Commissioner Larsen asked Mr. Turbak if he is encouraging the Planning Commission to go along with buffer averaging? Mr. Turbak said he was contacted by others about the rules changing, but he hasn't had time to study the proposal and can't speak to specifics. He would like to back what Chris Wright said because he looks to the consultant to tell him what's good. Commissioner Douglass referred to item 4, and asked Mr. Turbak about the ability for buffer averaging on streams and what's his reaction to this? Mr. Turbak hasn't read the proposal and is hoping if it is not there to please give the ability to the consultant and staff to read the rules and have leeway to figure out how to do it. Garrett Huffman, South King County Manager of the Master Builders Association, mentioned their three items in the Planning Commission packet. The State regulations on best available science didn't say what it is. Every jurisdiction is coming in with something different. There are a number of issues to take into consideration. Flexibility is fantastic. They prefer smaller buffers. Affordable housing is a goal of the GMA. He spoke of the buildable land crisis in King County. He spoke about infill development, flexible lot standards, etc., and wants to see these in the ordinance. Their attorney laughed at the term woodland resource area which is not listed anywhere else. Woodland resources are not a critical area and he suggested that all reference to woodland resources be deleted. A grove of trees doesn't mean the site is a critical area. His recommendation for buffer averaging is that he wants a 50% reduction. If you need to adjust the placement of a building and need to average, then do. Planning staff needs to take this into account. If there is a description of buffer, go with low impact. Find out what other cities are doing. Snohomish has wetland banking which is a successful program. If the site is filled in, you can sell the credits to wetland bank. Snohomish created a wetland bank and developers loved it. Commissioner Ward commented that Mr. Huffman was skeptical of best available science and she asked if he has read the WAC which speaks to peer review and reasonable efforts. Mr. Huffman said if you look at what was put together by DOE, there is no constituent saying 25 feet to protect 'xyz'. It said you have to look at, but didn't say have to do. Commissioner Ward wondered if the proposed CAO gives Mr. Huffman the flexibility he's asking for. Mr. Huffman said the point is to have science available. If a developer comes in and meets with staff, studies are provided. Mr. Huffman said there is a lot of variations out there. Threre is a broad range of what is available. Mr. Huffman emphasized that he is not making fun of Auburn for its best available science, but is making fun of the State for saying that cities must use best available science, but not saying what best available science is. Planning and Community Development Director Krauss said that best available science is continually evolving. Staff was asked to identify an appropriate set of scientifically based recommendations at this point in time. The critical areas program calls for periodic assessment and incorporation of new science and the City has done this for 20 years. Storm basins, for example, have adopted better standards as - 3 - MINUTES OF THE PLANNING COMMISSION MEETING NOVEMBER 3.2004 new designs come out. The State is unsure what the best available science is. He spoke about meetings with other cities and all were concerned about doing their own science. Different cities have different problems. Certain agencies are sending critical letters saying that the science is inaccurate. Cities are being sued over not adopting policies of CTED. Best available science is a nebulous concept. Cities are being asked to make their best judgment. Auburn did science assessment and brought in experts. Fred Poe, former Councilmember, said this seems like a complex issue and process, but it's not. Auburn has the Comprehensive Plan which is updated yearly, is the Zoning Code, has other regulations. He thinks that the staff capably serves the City. Staff is thorough, and the local architects and engineers support this statement. He feels that the staff recommendations are adequate. He thinks what should be passed, if there are any inadequacies, can be addressed at a later date and can be revised at a later date. He sat on the citizens panel when the SAMP process began and worked on it for two years. State and Federal agencies were involved and other cities too. Top science was used and they couldn't come up with one plan. SAMP was never officially adopted. Auburn has a very thorough storm sewer plan. Regarding impervious areas, people who develop have impervious areas and paid for this. There has been countless mitigation in Auburn and for the most part this has been successful. Regarding trying to enhance small wetlands, mitigation somewhere else makes more sense. The City has City owned mitigation sites - small wetland projects that have been worthless. It would be better to move these to other sites and possibly in the future to have wetland banking. Staff did a good job and he requested that Planning Commission adopt the staff recommendation. Nancy Colson, realtor, thanked Planning Commission and staff for studying this and its ramifications for citizens and property owners. She lives in Auburn and is a real estate broker with Windemere and deals with these issues daily. Most property owners understand the rules and regulations and the need for preserving regulations. They don't like over restrictive rules or regulations. Sometimes they feel land is taken without compensation. She urged the Planning Commission to consider a reasonable and flexible ordinance, to consider buffer averaging and creative solutions. Karen Franklin, realtor, turned her time over to Sam Pace. Sam Pace, Seattle-King County Association of Realtors, represents 7,000 realtors in the County. He distributed a handout of his PowerPoint presentation. He spoke about RCW 36.70A020, planning goals, that has 13 goals such as urban growth, reduce sprawl, transportation, housing, economic development, permits, property rights, environmental, historic preservation. He referred to WEAN v. Island County, which speaks to balancing the goals of the GMA Commissioner Ward commented that if this case was not published, then the case is not considered precedent. Mr. Pace talked about the approach for implementing WEAN, to acknowledge environmental values, put best available science in record and substantively considering it, identify competing goals that warrant different approach in a built environment and explain in the record the legislative decision to opt for a more comprehensive view. The CAO must be balanced with property rights, housing, transportation, economic development, reduce sprawl, urban growth. Mr. Pace said that best available science doesn't identify a full range of alternatives for jurisdictions. The Planning Commission received comments from CTED and the Planning Commission should take their comments with a grain of salt. He spoke about a change in the language of CTED and said that their WAC's don't conform with State policy. He said that not everything from State agencies is gospel. King County's CAO's primary focus is rural not urban. King County's outside experts indicated that King County's best available science didn't have documented methodology. Commissioner Ward commented that Mr. Pace has criticized best available science, but he should understand that jurisdictions were handed this by the State; Auburn didn't make it up. Is he asking Auburn to disregard best available science? Mr. Pace is saying that Auburn must consider best available science, but best available science requirement is in reality a procedural requirement not substantive. There is no agreement about what best available science is. Commissioner Ward asked if there is anything specific in - 4 - MINUTES OF THE PLANNING COMMISSION MEETING NOVEMBER 3. 2004 the proposed ordinance, staff recommendation or matrix that he wants to address. What does he disagree with? Mr. Pace thinks there is great wisdom at the conceptual level, have flexibility to decide what the City wants to do. He spoke about the need to retain flexibility at the project level and the flexibility that the law gives you. Chair Peace recessed the meeting at 8:50 pm and reconvened the meeting at 9:00 pm. Mark Hancock, Seagle Business Park, provided testimony at the previous public hearings on the topic. The original ordinance had less flexibility and they like the newer version. Staff has received additional information from others requesting less flexibility. He agrees with staff recommendation except for three items. Their recent correspondence spells this out. Regarding buffer averaging, the maximum reduction is in keeping with old version of the King County ordinance, stream buffer to 25 feet. Regarding the monitoring period, they prefer to see three year minimum versus five year minimum because five years is too long to monitor plants. Even the representative from Livable Communities asked for the three year minimum. The impacts of extreme positions by other groups at other meetings and the recommendations by these groups could pose problems with building a deck, mowing a lawn, or a house addition. Applying rural standards is not appropriate. Auburn can set its own standards. Use of extreme criteria will tie staff hands and add expense. The lack of flexibility limits creativity, and will drive up the cost of housing. Allowing more flexibility is wise. City staff and the consultant propose a reasonable document which is similar to other localities. He urged Planning Commission to reject extremes from outside groups and thanked the Planning Commission and staff for all their time. Denny Holt, Holt and Associates, is impressed with realtor slide showing balancing. Why are areas critical now when they used to be sensitive? Regarding variance provisions, encourage opportunity to address. He supports flexibility. Mary Roberts, 502 8th Street NE #24, stated that best available science is uncertain and scientists have different opinions. Planning Commission should consider the cumulative impacts through space and time and think about economic valuation of natural resources. In talking about economic development, think about natural resources and keep the classification for wetland as a use. There is disagreement about class 4 wetlands and some believe class 4 wetlands are important. Regarding stream buffers, there is the option of buffer averaging and variances. She spoke about reasonable use provisions. Chair Peace closed the public hearing. Commissioner Douglass asked about the status of the mapping of critical areas. Community Development Administrator Osaki responded that the City has the critical area maps and an updated stream and wetland inventory. The maps depict the general location of critical areas and are used to identify if a critical area is on a potential development site. The maps would be companion documents to the critical areas ordinance. The maps have a disclaimer on them because they show the general location of critical areas, but may not show all the areas. The maps are based on field, inventory and aerial work. All jurisdictions use these types of maps. Commissioner Ward thanked staff for preparing the matrix which is extremely helpful and thanked staff for providing the best available science (BAS) report which is helpful in understanding the concepts. She also thanked staff for producing another set of CDs for her. Chair Peace referred to 'woodland resource', and wondered if there is an issue with identifying this as a critical area. Community Development Administrator Osaki replied no. As part of the review process, the City was required to send the CAO to State agencies including CTED. If the CTED thought Auburn was over and above staff would have heard back. Testimony received was that this is not an element under GMA. - 5 - MINUTES OF THE PLANNING COMMISSION MEETING NOVEMBER 3.2004 Commissioner Ward suggested that someone make a motion to adopt the CAO with staff recommendation as set forth in the matrix except the 25 feet. Commissioner Mason wants to talk about item 4, stream buffer averaging, since some recommendations have been very different. Chair Peace wondered what is driving the 40 feet requirement. Senior Planner Dixon said the provision to allow buffer averaging in instances of class 3 streams, not less than 40 feet is to assure minimum amount of protection for stream. Commissioner Roland commented that 40 feet is a very large area and this depends on what is on each side of the stream. Why 40 feet? She believes if there are no fish in the stream a buffer of 40 feet is too much. Senior Planner Dixon explained the meaning of different classes of streams. Commissioner Ward remarked that the entire best available science report by MCS Environmental explains why. Their minimum is 50 feet. The document explains why streams have value whether fish are present or not. Mr. McDowell, MCS Environmental, said you will see broad ranges of buffer widths that are recommended in science. Staff tried to make balance of judgment here. Some buffers are as small as 6 feet. Reporting broad range of values in science and trying to help inform staff of where to draw the line. It is a matter of judgment and balance and part of the process the Planning Commission is engaged in. For example, if there is a stream down the middle of property, you could envision a buffer on both sides of the stream. This would apply from the ordinary high water mark. Commissioner Ward replied that if you look at the report it explains why streams have certain values and the need to do the balance which is mandate by the Legislature. You don't want to pick an arbitrary number. If within the range, make a recommendation to City Council and they decide. If you read the report it is clear why there are different buffers for different categories. She is leaning toward staffs recommendation who looked at the science, talked with the environmental community, and with developers. All will have to live with administering if adopted by the City Council. Commissioner Roland advised that best available science is different depending on who you talk to. She was in the Legislature and she voted on the GMA so cities and counties could determine what is important to their areas. Everyone has their own idea of what is best available science. She personally feels that 40 feet is too much land to set aside to claim frontage without taking into consideration what the stream is doing, where it is located, what is adjacent to the steam, where it is running. She doesn't want limit certain footage on each side because that's 80 feet. Commissioner Ward replied that the original proposal had no buffer averaging. The environmentalists don't want averaging. There is now a marked move toward flexibility. Planning and Community Development Director Krauss respects the Planning Commission's concerns and reminded them that it took two years to get to this point. The CAO is a fairly weighed package. There are ways to do what Commissioner Roland suggested. The City got a specific study to base its decision on. The current package is considered within the range of acceptability. Commissioner Douglass referred to function and value, wondered how to define value. Planning and Community Development Director Krauss said this gets back to a single way to approach, a balancing act. Questions asked are does the wetland have value for terrestrial species? For water species? Is it rare or one of 600? Most commonly used value system is the point system. On mitigation, you say you can achieve this number of points which seems to work. This is a commonly accepted methodology that works. Commissioner Mason referred to item 4, and Planning and Community Development Director Krauss's suggestion that maybe this should be studied a little more and if Planning Commission can't come up with a consensus, put a tag on this and study further. Commissioner Mason referred to item 3, buffer width and noted that there is a discrepancy between the two. Could Planning Commission say when sent to City Council that they couldn't come up with definitive answer? Planning and Community Development - 6 - MINUTES OF THE PLANNING COMMISSION MEETING NOVEMBER 3. 2004 Director Krauss replied yes. He encouraged Planning Commission, based on what they know, their years of effort, this is the best package they can come up with. Commissioner Roland referred to item 10, wetland designation, and that staff says it wants to designate now, but shouldn't it be designated when wetlands are found? What if the wetlands dry up and go away 20 years from now? Senior Planner Dixon referred to the area where staff is proposing the change and said that staff received comments of concern that the language didn't recognize the opportunity for wetlands to evolve over time. Now there is language from the State model ordinance that recognizes that wetlands change over time. Chair Peace referred to the monitoring programs that talked about five years minimum and comments were heard about less monitoring and comments heard about more monitoring; is there a way through the variance process to reduce monitoring to five years or less if staff were to agree? Senior Planner Dixon said that the original proposal spoke to three to five years as the time frame. Comments suggested a longer time and a shorter time. The proposed language reflects five year monitoring program. There are arguments both ways. Chair Peace wondered if the regulation says five years and it's obvious that five years doesn't make sense in that particular situation, can you reduce the time frame in the variance process? Senior Planner Dixon said there is specific level in the ordinance. You could specify that a monitoring period of three years in areas such as buffer averaging or five years for more extensive project. This would provide flexibility. Monitoring period could be five years or more for complex or certain types of hydrology. In response to Planning Commission inquiry, Senior Planner Dixon said the mitigation time period allows the City to visit sites, see how the plants are growing, see if there are any problems with the soils, etc. Planning and Community Development Director Krauss advised that when the City receives a wetland plan, the proponent designs the drainage, planting and mitigation and provides a monitoring program with it. Based on level of difficulty, for example, Emerald Downs, it took years to actually install the plantings and for the vegetation to take hold. That was a very involved situation. If the City receives a simple plan, if it can be done in three years. The City will accept three years required monitoring on these. The idea is for the wetland to perform and if need be replace any material that dies. He spoke about the City's bonding process. Lengthy discussion occurred regarding the three years versus five years monitoring requirement. Commissioner Roland inquired about any discussion about compensating homeowners. Planning and Community Development Director Krauss said that Auburn has always followed the policy of making sure that the City is cognizant of not wanting to back the City into a position of taking. He spoke of the need to get some functional use out of the parcel. Once that is created, the City has an obligation to work with the owner to get use of the parcel. Community Development Administrator Osaki commented that in the ordinance an item that staff raised months ago on page 16 Section on exemptions. One exemption deals with item 4. For certain types of exceptions, the proponent comes to the City 14 days prior to doing the work. In working with the Public Works Department, routine maintenance of streets and utilities, the 14 day time frame would be burdensome. In this exemption, staff proposes not going through the 14 day review process. Commissioner Roland asked why put woodland resources in the CAO? Planning and Community Development Director Krauss said that the Planning Commission and at times the Council has asked staff to improve the protection of significant stands of trees. Staff looked at various means to accomplish this. In working with the Kersey 3 developers and other projects staff can work to preserve areas and this would be easy to include. It would avoid the mass grading that occurred in the Lakeland Hills portion of Pierce County. -7- MINUTES OF THE PLANNING COMMISSION MEETING NOVEMBER 3.2004 Commissioner Ward made a motion to recommend that City Council adopt the CAO draft dated July 7 2004 with staff recommended changes noted in the matrix, amend item 22 on monitoring and changing the wording from a minimum of five years to a minimum of three years, as part of Section 16.10.040 D, add number four to grant exemption of 14 day time frame for road work and/or utilities. Commissioner Larsen seconded the motion. Chair Peace referred to item 22, and said the recommendation was not to change from three years to five years, but to recognize the types of projects that could be three years and others that could be five years. Senior Planner Dixon suggested that a minimum of three years be set for projects that enhance buffer only, and minimum of five years for other projects. The length of time is a function of the degree of the different types of mitigation. Commissioner Ward suggested a friendly amendment of a minimum of 3 years subject to increased monitoring set forth therein, language from Senior Planner Dixon. Chair Peace commented on wetland banking and said that he can't see the value of small isolated wetlands. It would be better to take those areas and develop and mitigate somewhere else and get bigger and better wetlands somewhere else. Planning and Community Development Director Krauss advised that staff has studied wetland banking at the Council's request. The problem is that the State has a flawed wetland banking law. For years, Auburn has been doing wetland concurrently with approvals and filling on another property. Auburn will use wetland banking once a good State law is in effect. The motion passed. With no further items to come before the Commission the meeting was adjourned at 10:30 p.m. PC\AGND\MIN 11-2004 - 8 -