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PC APPROVED Minutes 03-27-14 Minutes Spokane Valley Planning Commission Council Chambers--City Hall, March 27,2014 Chair Stoy called the meeting to order at 6:00 p.m. Commissioners, staff and audience stood for the pledge of allegiance. Ms. Horton took roll and the following members and staff were present: Kevin Anderson Scott Kuhta, Planning Manager Christina Carlsen Cary Driskell, City Attorney Bob McCaslin Lori Barlow, Senior Planner Steve Neill Deanna Horton, Administrative Assistant Mike Phillips Chris Sneider Joe Stoy Commissioner Carlsen moved to accept the March 27, 2014 agenda as presented. Motion passed seven to zero. Regarding the March 13, 2014 minutes commissioners noted the vote for CPA-02- 14 was incorrect. Commissioner McCaslin and Commissioner Sneider's vote was recorded opposite of their actual vote. Commissioner Carlsen moved to accept the March 13, 2014 minutes as corrected. The minutes will be corrected. Motion passed seven to zero. COMMISSION REPORTS: The Commissioners had no report. ADMINISTRATIVE REPORT: Planning Manager Scott Kuhta reported the permitting activity is increasing. The City is also seeing an increase in land use pre-application conferences as well. Mr. Kuhta shared a flyer for an upcoming 2nd Annual IES-APA Planning Awards Dinner. PUBLIC COMMENT: There was no public comment. COMMISSION BUSINESS: A. Unfinished Business: Findings of Fact: Annual Comprehensive Plan amendments: Chair Stoy introduced the Planning Commission finding for the 2014 Comprehensive Plan amendments. Vice Chair Carlsen moved to approve the findings for CPA-01 through 10-2014. Commissioner Sneider commented since the city center has been completely removed from the Comprehensive Plan there didn't seem to be any strategic plan for the City's future. He expressed his concern there no longer seemed to be a plan for the City's future. He hoped the City would be able to come up with a replacement sooner rather than later, hoping the new things which are happening near Sprague and Herald could be leveraged to help plan for the future of our City. Commissioner Anderson said he felt the findings for CPA-02-14 presented both sides of the story. Commissioner Anderson noted one of findings said future property owners would be permitted to build a building on the property if the change were approved; he said in fact Spokane County Regional Animal Protection Services (SCRAPS) would be permitted to do that as well. He commented from the staff report statements which said 'this amendment will provide an upgraded necessary animal control facility" and "if plans were to change the proposed designation would allow for transitional uses more suitable to the Iocation that may act as a buffer." Commissioner Anderson was concerned these statements are not reflected 03-14-14 Planning Commission Minutes Page 1 of 7 because it does not delineate there are possibilities of change which could occur, if this is approved, which would be very negative to the residents and the residents would have no control over these actions. Commissioner Anderson asked to clarify if SCRAPS could use this property to walk dogs as it is currently designated. Ms. Barlow said although Mr. Palaniuk had previously answered yes it was inaccurate. This information was also clarified at the Public Hearing. Walking dogs on the property would be an extension of their use as a regional animal control facility and they currently are not allowed to utilize the property for that purpose. He said in the findings under Attachment 2 (b)(ii) it states "SCRAPS is the property owner of the proposed amendment site and a denial will inhibit the use of the site as they intend." Mr. Anderson said there was testimony from Nancy Hill of SCRAPS,that there was no original intended use for the property. She had testified they had to purchase this piece of property as part of the overall land purchase. Mr. Kuhta said however they do now intend to use the property and the report does reflect that. The City Council will get this report and all of the supporting information to be able to make a decision. Commissioner Phillips pointed out on the findings document that CPA-01-14 was listed in the conclusions as the amendment which ended in a tie, CPA-02-14 actually was the amendment which ended in a tie. Mr. Kuhta said staff would correct the error before signatures were obtained and moved forward. Commissioner Carlsen moved to amend the original motion by stating the findings shall read "CPA-01-14 and CPA-03-14 are not in compliance and CPA-02-14 resulted in a tie. The vote on this amendment was seven in favor, zero against, motion passes. The vote on the motion to approve the Planning Commission findings as amended, seven in favor, zero against, motion passes. Mr. Kuhta shared that at the April 1 Council meeting Mike Jackson, John Hohman, Cary Driskell, Erik Lamb and himself will be providing an overview of Comprehensive Planning to the City Council. He said some of the items to be discussed will be the major update, annual updates, role of the Commission, and public hearings. Mr. Kuhta encouraged the Commissioners to attend, B. New Business: Study Session Draft Shoreline Master Program (SMP),Draft Regulations: Senior Planner Lori Barlow explained contents of the Buffer Map Booklet provided to the Commissioners and noted that it would be used throughout the Draft Regulations. Ms. Barlow discussed the key points of the upcoming draft regulations. These regulations will only be applicable to the City's shorelines. Ms. Barlow noted the gravel pits will not be considered until all mining operations have stopped. Generally speaking the City does not have a lot of shoreline. Sixty two percent of the shoreline in the City is public land, thirty eight percent is privately owned. Ms. Barlow said the draft regulations would be reviewed in three pieces, administrative provisions, general provisions on April 24, and critical areas on or about May 8, 2014. The regulations were developed in conjunction with URS, and in-house staff. She shared staff would be conducting an open house closer to the public hearing, tentatively scheduled for May 22, 2014. After the regulations have been reviewed by the Planning Commission, the City Council will adopt them by resolution. After all of the pieces of the Shoreline Master PIan have been adopted by resolution, the entire package, would return for the formal adoption process. After the local adoption process has been completed, the Plan is sent to Washington State Department of Ecology(DOE) for state adoption. 03-14-14 Planning Commission Minutes Page 2 of 7 Commissioner Anderson asked who was expected to use the regulations stating they are written in a difficult manner to read and use. He said there were too many cross-references back and forth, it was confusing to try and read. Ms. Barlow replied both, staff and the public, would be using the document. City Attorney Cary Driskell interjected this was an internal and external document. There had been a concerted effort by staff to make the document as readable as possible, while still making it as direct as necessary. Mr. Driskell stated it was a technical document and it was going to be difficult for some people. Ms. Barlow noted that generally property owners come to the city with questions about a project. Staff works with them to explain the regulations. Staff is always willing to help our citizens understand the City's regulations. Ms. Barlow proceeded to review administrative sections of the regulations taking questions as they occurred. • 21.50.020 explains where the shoreline jurisdiction is, and who and what it applies to. The regulations will apply,even if a shoreline permit is not required. In our City it would apply to the river, Shelley Lake and extend 200 feet from the shoreline. • 21.50.030 and .040 states the Community Development Director is the shoreline administrator. It also notes he has the ability to consult with experts if needed to make an appropriate decision, and explains the different types of shoreline permits. • 21.50.050 lays out the process for a shoreline permit. A shoreline development permit (SDP) requires a 30-day notice which is unique to the shoreline permitting process. Appeals will go to the Shoreline Management Hearings Board. There was an option to adopt a local appeal process, but after discussions staff found no value in this process. Staff felt it would only extend the process,when the decisions could still be appealed to the Shoreline Management Hearings Board. The section identifies permit procedures unique to the SMP, as well as permit expiration dates noted in the Washington Administrative Code (WAC). Commissioner Stoy asked why utility extensions and shoreline stabilizations only required a 20-day notice. She said she recognized the difference but that it was straight out of the WAC. She did not have the reason for the difference. • 21.50.060 and 070 discuss how permit decisions will be made and possible conditions which could be applied to the permits. • 21.50.080 lists all activities and uses which are prohibited in all shoreline designations. Ms. Barlow said these activities are prohibited, and one of the more flexible types of permits, like a Shoreline Variance or a Conditional Use Permit to get permission to allow the development or use. Commissioner Sneider asked why items in (I) construction of breakwaters, jetties, groins or weirs, would not be allowed. He offered there are times when a weir, or a spur dike, can be built to protect the shoreline. Ms. Barlow stated that she thought the listing of prohibited activities was from the WAC and noted that she would bring back additional information. • 21.50.090 this section clarifies what minor activities are allowed without a permit, such as regular maintenance of existing landscaping, creating unimproved trails less than two feet wide, and planting native vegetation. It also mentions what cannot be done without a permit, such as remove trees, bring in fill, earthwork, and area-wide removal of noxious weeds. She clarified that this does not mean that these activities are prohibited, but they require a permit. Ms. Barlow covered the definitions of development and substantial development. Section 21.50.100 covers when a substantial development permit (SDP) is required. The WAC 03-14-14 Planning Commission Minutes Page 3 of 7 defines development as: any construction or exterior alteration of structures, dredging, drilling, dumping,filling, removal of any sand, gravel, or minerals; bulk heading; driving of pilings; placing of obstructions; or any project of a permanent or temporary nature which interferes with the normal public use of the surface of waters overlying lands subject to the SMA at any stage of water level. Substantial development is defined as any development which the total cost or fair market value exceeds $6,416 or any development which materially interferes with the normal use of the water or shorelines of the state. The dollar amount is adjusted every five years by the Office of Financial Management. Commissioner Phillips asked if projects were considered as a whole and would not be done in parts in order to stay under the minimum. Ms. Barlow said the rules apply to the project in its entirety A SDP is required unless it is specifically exempt. If the project is listed as an exempt development, by the WAC, it means the project is exempt from the SDP process. It does not mean the project is exempt from complying with the rules or the goals and polices; it only means that it is exempt from the SDP process which requires public review and comment,and a filing period with Ecology. • 21.50.110 lists all of the exemptions from a SDP permit. These exemptions are straight from the WAC. Although this section is lengthy, and somewhat poorly worded, staff has been advised to stay with the WAC language because these exemptions, as written, have been supported by case law. Commissioner Carlsen asked what the current process and cost would be for a shoreline permit. Ms. Barlow said the cost would vary because it would depend on the number of permits required for the project, but a SDP is currently $840.00 and the SEPA is $350.00. The process for notices and completeness review are in the Spokane Valley Municipal Code (SVMC). The SDP can be issued following the noticing and comment periods. , This takes approximately three months. Commissioner Anderson questioned item G,personal docks. He asked if the legislature hadn't recently changed the amount from $10,000 to$20,000. He stated the bill had just been passed. Ms. Barlow said that new law would become effective this summer, and the draft would be updated to reflect the most recent amount prior to adoption. • 21.50.120 addresses Letters of Exemption (LOE). All of the exempt activities require a letter spelling out exactly what is being approved. It will explain what the property owner can do and what they cannot do. The LOE is also sent to DOE but they do not have the opportunity for comment or review. The advantage is a homeowner can get the LOE in approximately two weeks, if SEPA is not required. The letter can't go out until SEPA review has been done, if it is required. Other jurisdictions charge for LOE but currently the City does not. The LOEs can be conditioned, like a permit, but without the time for public and agency review process. Commissioner Sneider asked if someone wanted to perform one of the exempt activities, if they would need to have the LOE before they begin the work. He stated there were many activities listed that many people may not know they needed the letter before they did the work. He wondered how the City would let people know. Ms. Barlow shared these are not new regulations; they have been in effect since the SMA was enacted in 1971. She said the City did not go out looking for violators, but did follow up on complaints received of people working in the shoreline areas without permits. • 21.50.130 identifies when shoreline Conditional Use Permits (CUP) are needed, and notes that if a proposed use is not listed in the Shoreline Use Table, or it is not addressed in the SMP a shoreline CUP is required. In that case the City becomes a recommending body 03-14-14 Planning Commission Minutes Page 4 of 7 when it comes to the conditional use permit, and the final authority lies with DOE. A CUP can't be used to allow a prohibited use. Conditions can be placed on a CUP. • 21.50.140 addresses Shoreline Variances for a shoreline permit. A Shoreline Variance is only granted when extraordinary or unique circumstance exist which create a hardship or conflict with the SMA policies. It is not for a self-made situation. An example would be if the lot was situated so a home could not reasonably be built on it without encroaching into the shoreline buffer or setback. Commissioner Stoy asked if a property owner could get relief for lot coverage and other similar things through an administrative exception. Ms. Barlow stated not under the SMP, the rules are not written to allow those kinds of relief. A Shoreline Variance would be required which also places DOE as the final decision making authority. • 21.50.150 speaks to non-conforming development in the shoreline in three different ways. There are non-conforming uses, structures, or lots. Staff have written the non-conforming regulations to allow flexibility for property owners. The definition is a legally established use, lot or structure which no longer meets the regulations. A structure or use which never got permits, and now does not meet the regulations, does not meet the definition. The non- conforming regulations allow for new development but the new development must conform to the current regulations. A use could be expanded or intensified but specific criteria must be met. Converted or discontinued uses lose their non-conforming status, after a period of time, which is in line with the non-conforming regulations in the SVMC, If a building containing a non-conforming use is destroyed the building could be rebuilt, and the use continued, as Iong as the building was built to regulations. A non-conforming building could be expanded but not into the shoreline area. If it could be expanded landside, this would be allowed but the non-conforming section could not be expanded. • Ms. Barlow explained the SMP requires a revision to an approved permit whenever the applicant proposes substantive changes to the project approved by permit. "Substantive changes" are those that materially alter the project in a manner that relates to its conformance to the terms and conditions of the permit, the SMP and/or the policies and provisions of the Shoreline Management Act. • 21.50.160 allows for minor revisions to a permit which the director can approve. The criteria is very specific: if it is determined to be within scope and intent of permit, authorized use does not change, no adverse environmental impacts will occur, no new structures, no additional over-water construction except that docks, etc. may increase by 10%, ground area coverage and height may be increased 10%, revised landscaping is consistent with SMP and permit conditions. If these criteria can be met, then a minor revision can be granted. If the criteria can't be met then a new permit must be applied for. Ms. Barlow said the next study session would cover general provisions, shoreline uses, shoreline use table, modification activities table, no net loss regulations, and buffers. Ms. Barlow stated she thought Mr. Kisielius from VanNess Feldman would be attending the meeting to assist the Commissioners in understanding the regulations. Commissioner Carlsen asked if she had missed the enforcement section. Ms. Barlow said the enforcement is 21.50.170 which generally points back to the SVMC for enforcement provisions. However it does highlight what a person could be required to do if restoration activities are necessary. An example might be if you are party to a violation to a critical area, you might have to develop a restoration plan. Commissioners took a break at 8:00 p.m. returning at 8:10 p.m. 03-14-14 Planning Commission Minutes Page 5 of 7 Commissioner Anderson questioned, on page 3, 21.50.010 first paragraph,who came up with the term "liberally construed." Ms. Barlow replied it came from the WAC. He wondered if the term was necessary, he would like to leave it out. Staff discussed the language was straight from the WAC and actually was beneficial to property owners and should not be changed. Commissioner Anderson said under 21.50.050(B)(1) it says The public comment period for Shoreline Substantial Development Permits shall be 30 days, pursuant to WAG 173-27-110. 21.50.050(B)(7) says For Shoreline Substantial Development Permits, Ecology shall file the permit without additional action pursuant to WAG 173-27-130. Mr. Anderson wanted to know if the items could be reorganized so they could be lined up together. Ms. Barlow stated the way the Iist is written right now it is Iaid out in more of a chronological list, instead of like items together. Commissioner Carlsen said on the same page 21.50.030, She felt references to the director should not be gender specific. Mr. Driskell answered there is a provision in the SVMC which states all references to"he"encompasses"she" as well. Commissioner Anderson directed attention to section 21.50.060(A)(1) Basis for action, "danger to life and property that would likely occur as a result of the project." Mr. Anderson wondered how this item carne to be included in the regulations. He felt this should be a building dept. issue. He did not feel this was a purview of the shoreline regulations. Previously staff and the Commissioners had been discussing a shoreline violation,where there had been concern for the property owner's safety from work which had been done in the shoreline area. This would be grounds for denial, Commissioner McCaslin asked in reference to 21.50.050(A)(5) adequacy of the information provided by the applicant or available to the Director: and 21.50.170(C)(3) The Director may, at the violator's expense, consult with a Qualified Professional to determine if the plan meets the requirements of the SMP. Inadequate plans shall be returned to the violator for revision and resubmittal,: he wondered how specific the process was, and what is given to the applicant so they can know they have done what is required. Ms. Barlow explained the City uses a Joint Aquatic Research Project Application (JARPA). The application is lengthy and asks for very specific information required for these types of projects. Mr. Kuhta stated staff works very hard with the applicants to help them and to get the information needed. Commissioner McCaslin felt that was wonderful now,but if staff changed and it were worded differently it might read better for the people who have to fill it out. Commissioner Anderson said 21.50.090(A) Maintenance of existing landscaping, lie asked to clarify the statement "Removing trees and shrubs within a buffer is not considered a maintenance activity," if it should read "native trees and shrubs?" Mr. Anderson said if he planted a tree before there was a buffer then that tree was his property, Ms. Barlow replied the buffer is a restricted area and no activity is allowed without a permit. Mr. Kuhta clarified the question, Mr. Anderson asked if the trees were planted before the enactment of the Shoreline Management Act and the buffers were established, and he planted the tress, the trees belonged to him and were not part of the shoreline buffer, he would consider them his personal property. Staff explained after the SMA was enacted and the buffers established,the trees fall under the SMA. Commissioner Anderson said it would be considered a taking. Mr. Driskell said he would disagree with the statement. Mr. Driskell also said he would caution the Commissioners with the terms they use for the actions taken by government. It isn't considered a"taking" within the definition of the law. Ms. Barlow said legislatively the City has the authority to regulate those areas, structures, uses, activities. The draft regulations do say intentionally that a property owner can't remove trees or shrubs from their own property, 03-14-14 Planning Commission Minutes Page 6 of 7 in the buffer area without consulting the City. These regulations are restrictive on private property rights, and the ability of the legislature and local jurisdictions to impose these types of restrictions have been litigated and the courts have upheld theses rights. Mr. Driskell explained that staff is trying to draft and adopt regulations which reflects the community's values within the constraints provided by the WAC and DOE. Ms. Barlow displayed a JARPA application to show the Commissioners the detail required. GOOD OF THE ORDER: Commissioner Carlsen said she has been working with the Environmental Protection Agency regarding clean-up of pre-1978 homes and lead based paint. She asked who she would talk to see if the people doing work on these homes had the proper certifications. Mr.Kuhta directed her to the City's Building Official Doug Powell. ADJOURNMENT: There being no other business the meeting was adjourned at 8:23 p.m. 7-15Y GE - - Joe Stoy, Chairperson V (11-4th3/ Deanna Horton, secretary Date signed 03-14-14 Planning Commission Minutes Page 7 of 7