City of Burien
BURIEN PLANNING COMMISSION MEETING
February 25, 2003
7:00 p.m.
City Council Chambers
MINUTES
Planning Commission Members Present: Robert Pierce, chair; Gerald Robison; Len Boscarine; Mickey Conlin; Jon Newton; Robert Simpson-Clark
Absent: None Douglas Rahn; Kirsti Weaver
Others Present: David Johanson, senior planner; Pat Smith, planner; Ann Root, Adolfson Associates; Amy Dearborn, Adolfson Associates; Gerry Lindsay, recording secretary
Chair Pierce called the meeting to order at 7:03 p.m. Upon the call of the roll all commissioners were present with the exception of Commissioner Newton, who arrived at 7:06 p.m., and Commissioners Rahn and Weaver.
Agenda Confirmation
Motion to approve the agenda was made by Commissioner Boscarine. Second was by Commissioner Simpson-Clark and the motion carried unanimously.
Approval of Minutes
A. February 11, 2003
Referring to the second sentence of the fifth paragraph on the second page of the minutes, Commissioner Simpson-Clark said he had not suggested that the depression area that holds water be included in the map, rather that it is logically inconsistent to have a lake but not a dry depression. With respect to the same paragraph, he further noted that it was Councilmember Rose Clark and not himself who asked about the wetland in the south end of the city next to SR-509.
Calling attention to the statement credited to him concerning single family residences not having hazardous materials in the penultimate paragraph on the second page of the minutes, Commissioner Simpson-Clark said what he had said was that since most single family residents do not have enough hazardous material to worry about there should be no need for an exception in the code.
Commissioner Newton arrived.
Motion to approve the minutes as amended was made by Commissioner Boscarine. Second was by Commissioner Robison and the motion carried unanimously.
Public Comment - None
A. Update on Critical Aquifer Recharge Area Regulations
Pat Smith, planner, brought forward answers to some of the questions asked by commissioners at the last meeting. On the issue of treating zoning districts similar to each other, he said his research showed that the King County surface water management program authorizes the City to act as the enforcement agency for surface water contamination. Regardless of the zoning district, anyone found causing surface water pollution can be served with a notice of violation. That puts everyone on the same playing field. The proposed ordinance will serve as a tool for staff and the City to have a dialogue with industrial and commercial users that have lots of hazardous waste to make sure they are handling it in an environmentally friendly manner.
Mr. Smith said a question had been raised about the regulations in the cities of SeaTac and Seattle. He said both jurisdictions were contacted and it was found that the regulations in SeaTac are similar to those being proposed for Burien. They do not allow uses in critical areas that could potentially harm the ground water. The city of Seattle does not have on the books any regulations concerning critical aquifer recharge areas. They do have regulations concerning surface water. Seattle is considered to be essentially an impervious city with very few aquifers underneath.
Commissioner Conlin asked if there could be such a thing as an aquifer recharge area that is not critical. Mr. Smith said in fact all areas are recharge areas. However, certain recharge areas are considered critical because of their soils and the location of the aquifer in relation to the ground level.
Chair Pierce questioned the claim of Seattle to have no critical aquifer recharge areas and cited the similarities between Green Lake and Lake Burien, neither of which has an outlet. Commissioner Robison pointed out that no one draws water from any of the aquifers lying under Seattle, so none of them can be considered critical.
Commissioner Simpson-Clark was struck by the fact that Seattle is asking Burien to protect a quarter of their wellhead protection area while at the same time they are doing nothing to protect their own part.
Commissioner Robison asked if the Lake Burien recharge area connects to any aquifers that have well fields drawing on them. Ann Root of Adolfson Associates said that question would have to be answered by Jon Sondergaard of Associated Earth Sciences, Inc. She added that all aquifers are connected in some fashion, but noted that it would require a study to determine for certain how quickly water moves from one aquifer to another. She noted that Mr. Sondergaard would be in attendance at the next Planning Commission meeting.
Commissioner Conlin said it was his understanding that lakes without outlets exist because they hold water. He asked how such lakes would recharge an aquifer. Mr. Smith answered that water seeps through the soil of such lakes even if it is very slowly. Commissioner Conlin said he would want to see some form of proof.
Commissioner Simpson-Clark said proof is extraordinarily difficult to come up with. He said one test he was associated with cost some $300,000, and included test holes drilled 25 feet apart, pump tests and florescent dyes, and carefully packaged core samples. All of that proved only that a substance could be introduced in one place and pulled out 200 feet away with reasonable consistency, which is much simpler than showing how aquifers are recharged and whether or not they are connected. The hydrologic studies called for in the proposed ordinance are essentially impossible. If there was any kind of scientific accuracy or honesty in the hydrologic studies, the cost would be prohibitive. The information requested cannot be obtained from the site; an aerial study would have to be done of the broad area. In most instances, if a hydrologic study is required the best approach is to walk away from the project. There should be no requirement at all for a hydrologic study since they are only necessary if it is known a project is in a critical area; the study would only serve to confirm the presence of a critical area. The logical thing to do would be to require a zero discharge plan for projects in critical recharge areas.
Ms. Root said the requirement for a hydrologic study is straight out of the model code. She agreed that the tests may not end up proving anything and noted that some jurisdictions have chosen not to require it, choosing instead to go straight to meeting specific requirements within critical aquifer recharge areas. She allowed that Burien could consider using that approach and skipping the test requirement.
Commissioner Newton felt that approach would make more sense, especially if the intent is to protect the aquifer and the test could create a process for allowing people to get around the restrictions. There is little to be gained by causing people to go through the costly process.
Commissioner Simpson-Clark said another option would be to give developers the choice of either conducting the test or accepting a recognized containment plan.
Commissioner Conlin asked what is being used currently to show the location of the critical areas. Ms. Root said the practice is to use the relatively recent King County hydrogeologic mapping. Commissioner Conlin asked what kind of science was used to develop the map showing the location of hydrogeologic features. Ms. Root said the question would have to be put to Mr. Sondergaard, but added that the USGS maps are about as good as can be obtained.
Chair Pierce noted that the zoning for the area indicated is either Community Commercial or Intersection Commercial and there is a gas station there. He asked what process would have to be undertaken should a competitor come in wanting to site another gas station in the same area. Mr. Smith said under the proposal a hydrogeologist would have to determine whether or not the gas station use would be compatible with the soils of the site. Commissioner Newton noted that there are already standards for siting such facilities that take into account surface water management and the like. Mr. Smith allowed that the City regulates new and expanding uses and that it is very difficult to go back and impose regulations on existing uses.
Commissioner Simpson-Clark what would happen in the event a company came forward with an application to build a warehouse for automobile body parts such as fenders and door panels, indicated on the checklist that they would not be handling any hazardous materials, was granted a permit to build, and some years later decide to distribute auto paint and solvents. Commissioner Newton suggested that there would need to be education and self-regulation. David Johanson, senior planner, said if the City knew about the materials being stored on site action could be taken to ensure compliance with the regulations. He agreed that there is much that goes on without the knowledge of the City.
Mr. Smith said Mr. Sondergaard was queried regarding the inclusion of more areas as critical aquifer recharge areas. He said Mr. Sondergaard agreed that the depression areas and the wetlands in the southern portion of the city should be included on the map. Mr. Sondergaard also will be asked to consider the large depression up on 128th Street.
Commissioner Robison said he would be interested in hearing whether or not the depressions connect to the critical aquifer.
Mr. Smith noted that clarifications had been made to the definitions for landfills and injection wells. With regard to automobile washing and the requirement for businesses to wash their vehicles inside, he said the provision would apply only to uses that have a certain amount of hazardous waste. Automobile washing where the discharge is directly to a sanitary sewer system would be permitted.
Commissioner Robison asked if the sewer district is willing to accept discharge that might be harmful to the system. Mr. Smith said he would have to check on that. Commissioner Newton said all approved parking lots have systems that separate the oil and water. The collection area must be cleaned out annually. The oil discharge from such systems must be less than five parts per million. Washing a lightly soiled vehicle in a parking lot that has an approved system will not cause any problems. Sending that same discharge to a sanitary sewer system would not be good because water treatment plants are not set up to deal with petroleum products. Car washing facilities use a special type of system and special soaps that allows for regeneration of the media so as not to become a problem. The problem with the required parking lot oil and water separator systems is that no one goes around checking them, and too often discharge exceeding the limits is sent directly into Puget Sound. When cars are washed in the streets the discharge is also sent right into Puget Sound. The best place to wash a vehicle is on a wash rack because they are designed for that.
Mr. Smith provided the commissioners with draft maps of the critical areas within the city. He said as the commission is asked to make a recommendation to the City Council for a specific critical areas topic, the commission also will be asked to make a recommendation to approve the appropriate map.
Commissioner Simpson-Clark suggested that paragraph (F) of the prohibited activities and land uses section should be amended. The language should include reference to levels of radioactive substances at levels requiring Nuclear Regulatory Commission (NRC) permits. Commissioner Robison said it would be useful to indicate in the ordinance that, for purposes of the ordinance, radioactive substances are those defined in the NRC regulations. Commissioner Simpson-Clark allowed that there should be some exceptions, especially the encapsulated radioactive substances used in medicine and smoke detectors.
Commissioner Robison asked if the code should include an exception for medical clinics and the like. Ms. Root said it would be good make sure the definition covers that.
New Business
A. Introduction to the Best Available Science on Wetlands
Ms. Root said the next item for consideration under the critical areas ordinance is the wetlands section. Burien currently operates under a modified version of the King County wetlands regulations. The King County wetlands ordinance is nothing if not cumbersome, and the modifications adopted by Burien are aimed at making the regulations less cumbersome. The plan for updating the ordinance will include additional modifications to make the ordinance easier to administer and comply with, and revisions based on making certain that the ordinance meets the best available science standard as established by the Department of Ecology.
Continuing, Ms. Root said the critical areas ordinance will have three sections on wetlands. Under the development standards section changes will be made to the wetlands rating and classification system. Currently Burien has three wetlands categories. On looking closely at the best available science recommendation of the Department of Ecology, the decision was made to recommend increasing the number of classes to four. Class 1 wetlands will be those areas that have habitats for endangered or threatened species and other high quality values. Few Class 1 wetlands are expected to be identified in Burien. Class 2 and Class 3 wetlands will be those falling into the middle range based on quality. Class 4 wetlands will be formulated by combining the various things from the King County ordinance that fit under the category of isolated or other low-quality wetlands.
Each of the four classes will have an associated appropriate buffer. The recommended buffers from the Department of Ecology include a very wide range: Class 1: 200 to 300 feet; Class 2: 100 to 200 feet; Class 3: 50 to 100 feet; and Class 4: 25 to 50 feet. Their recommendation is based on best available science. The buffer variations are based on the fact that there are a wide range of wetlands that fit into each category; in certain circumstances a wider buffer is better, while under other circumstances a narrower buffer is more appropriate. Ms. Root said she would be recommending Burien adopt the low end of the scale: Class 1: 200 feet; Class 2: 100 feet; Class 3: 50 feet; and Class 4: 25 feet. The smaller buffers fit with the best available science for urbanized areas, which include Burien.
With regard to the section about wetlands near slopes, Ms. Root said the additional setbacks requirements are in the current code. The recommended setback will continue to be from the top of the slope, which is the standard approach.
The commissioners were informed that no changes will be recommended to the permitted alterations section. Ms. Root observed that the permitted alterations will be appropriate to the class of wetland; very few alterations would be allowed in a Class 1 wetland, some would be allowed in Class2 and Class 3, and the most would be allowed in Class 4 wetlands.
Commissioner Newton pointed out on the map, in the northwestern section of the city, the area where after the Nisqually earthquake a new creek formed which flows as heavily as Salmon Creek into which the new flows. He asked if there were any way to survey the new creek and add it to the map.
Ms. Root said the mitigation requirements section of the code will see some revisions. She explained that the requirements apply to damage done to wetlands as well as avoiding damage to wetlands. The section as written does not fully meet best available science. One of the things that is missing is a ratio for replacement. The recommendation of the Department of Ecology for compensatory mitigation is a ratio of 6:1 for disturbances to Class 1 wetlands. In other words, destroying one acre would mean the creation of six acres. The 6:1 requirement does not come into play very often given that there is almost never any harm allowed to Class 1 wetlands. The ratio for Class 2 drops to 3:1, and for Class 3 the ratio is 2:1.
Commissioner Newton asked if the mitigation wetlands must be contiguous. Ms. Root said the preference is for the contiguous approach, but if circumstances do not allow they can be separated. A standard requirement is to have the mitigation area be within the same drainage basin.
Ms. Root said at the next meeting the draft ordinance will be more fleshed out and ready for further review.
Chair Pierce asked how much of the Miller Creek basin is considered wetland. Ms. Root allowed that one of the things lacking in Burien is an inventory of wetlands. It is suspected that there are wetlands in that area, but they are not shown on the map.
Commissioner Robison raised the issue of establishing a threshold size for regulating wetlands. He asked if the size of a wetland is a factor in determining the class of a wetland. Ms. Root said it does, especially for the Class 2 and Class 3 wetlands. There is no best available science that says wetlands of less than X square are not valuable and not in need of protection. There are, however, some practical reasons for establishing a threshold.
Amy Dearborn with Adolfson Associates pointed out that there are size thresholds for wetlands established at the federal level. They depend on the type of impact and whether they are isolated. However, while the federal government does not take jurisdiction over isolated wetlands, the state does. Given that, the size threshold becomes a moot point. On the local level size thresholds are not uncommon. Proposed developments for sites with wetland exempted by local level size limits must still go through the state.
Ms. Dearborn said every wetland, regardless of size, has value. However, from a policy standpoint thresholds of 1,000 square feet have been tested and upheld for urban areas, and 2,500 square feet for urbanizing areas. Ms. Root said a threshold of 5,000 square feet would be difficult to prove under best available science. By setting a minimum size threshold, property owners could be allowed more development rights and less regulation.
Commissioner Newton asked if a biological inventory is taken when a wetland is classified. Ms. Root said when a wetland is classified there is a biological inventory taken of both plant and animal life.
Chair Pierce commented that many of the so-called wetlands were manmade diversions created years ago. He asked how something manmade could come to be classified as a wetland. Ms. Dearborn said those issues are typically flushed out during a critical areas study. A historical analysis of properties sometimes is required, and often are voluntarily submitted.
Commissioner Newton suggested that regardless of how a wetland came to be, once plant and animal life come to depend on it, it can be classified a wetland. Ms. Dearborn said that in addition to plant and animal species, the classification of wetlands is based on factors such as soil and water. The absence of a species would not necessarily rule an area out as a wetland.
Chair Pierce held that whoever is responsible for destroying wetlands should be responsible for repairing or replacing, regardless of how far back in time the action occurred. Over time a number of areas have been destroyed by the Port of Seattle and by King County. Commissioner Robison pointed out that in most cases it is the last person to develop property in an area who is affected by regulations. For that reason many race to get things done before anyone else does. Ms. Dearborn agreed and commented that property owners are often stuck with the history attached to land. That happens on both the wetlands level and the hazardous waste level.
Mr. Johanson pointed out that the current Burien code sets 1,000 feet as the threshold for wetlands; below that size they are not regulated on a local level.
Commissioner Robison asked if the Class 4 category includes severely degraded or altered wetlands. Ms. Dearborn allowed that it does. All wetlands by definition have some function and therefore deserve some merit of protection; the functions include things like water quality because they retain particulates, water retention areas because of the sponge effect, and native or sensitive species functions. There are in addition a number of different methods for assessing the functions. Drainage ditches and cleared and graded areas that have over time developed wetlands typically fall into the Class 4 category. That is the reason why the standards for the category are less stringent.
Commissioner Robison thought it would be helpful to know what factors go into determining that an area is a wetland. Ms. Dearborn said it all comes down to soils, water and vegetation. The soils must be of a type to retain water. Water must saturate the soils for long enough periods through the year to create hydric conditions in the soil. Vegetation in wetlands develops because the water is present. Depending on the type of soil, the water table must be within 10 to 12 inches of the surface.
Commissioner Boscarine asked if the proposed regulations could set up a situation in which a bog that does nothing more than raise mosquitoes cannot be filled in. Ms. Dearborn commented that because of federal regulations filling in bog areas is already not allowed.
Commissioner Newton asked if there is a list of indicator species that are found only in wetlands. Ms. Dearborn said there is a whole system of rating plant species. In 99 percent of the cases, the presence of skunk cabbage indicates a wetland. Conversely, where fir trees are present there is only a one percent chance of the area being a wetland.
Commissioner Robison said he would like to see a threshold of more than 1,000 square feet. He added that he could see no reason for setbacks around Class 4 wetlands given that they are unlikely to serve as habitat for animals.
Given that local jurisdictions cannot impose regulations less stringent than those imposed by the state, Commissioner Newton suggested it will be important for the commissioners to know what the finite limits are. Ms. Root said she would bring that information to the next commission meeting.
Mr. Johanson asked the commissioners to review the policy language in the adopted Comprehensive Plan relative to the natural environment.
Commissioner Conlin stressed the need to have all wetlands regulations based on solid scientific evidence, not just on what several jurisdictions have adopted and gotten away with.
Staff Reports
Mr. Johanson said staff was considering adding staff reports as a component to the commission agenda. To that end he reported that both the Gregory Heights and the Hazel Valley schools have successfully passed through the Type 3 land use process and will be getting building permits very soon. Both will result in brand new schools.
Mr. Johanson reminded the commissioners of the neighborhood planning effort going on in the northwest sector of the city. Commissioner Newton is participating as a steering group member.
Work is set to begin soon on the development of a pedestrian and bicycle facilities plan. The city will be looking for volunteers and there may be opportunity for a Planning Commissioner to participate in the process.
Mr. Johanson said there has been some misinformation circulating regarding the City’s plans for the Downtown area. He said a Q&A fact sheet was put together to answer some of the questions and set the issues straight. Copies of the document were provided to the commissioners.
The commissioners were informed that the City Council adopted the 2003 Comprehensive Plan docket, which will serve as a major part of the commission’s work plan for the year.
With regard to the Downtown plan, Commissioner Conlin asked what is going to be done about parking. Mr. Johanson said the conceptual plans call for the construction of a parking structure as a part of Town Square that could be a public parking facility. Issues of how the structure is to be paid for have yet to be worked out. The amount of parking overall will increase.
Adjournment
Motion to adjourn was made by Commissioner Newton and was seconded by Commissioner Simpson-Clark. Chair Pierce adjourned the meeting at 8:41 p.m.
Approved
/s/ Robert Pierce, chair
Planning Commission
/s/ Scott Greenberg, director
Community Development Department