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03/06/2006 - Special - MinutesCity of Port Orchard Council Meeting Minutes PRESENT: Special Meeting of March 6, 2006 Continued Public Hearing-Critical Areas Ordinance KIM E. ABEL, MAYOR COUNCILMEMBERS: Fred Chang John Clauson Robert Geiger Rita Diienno Tye Moore Carolyn Powers, Mayor Protem Rick Wyatt, Excused ALSO PRESENT: City Clerk Etgen, Planning Director Long-Woods, and Assistant City Attorney Jacoby. 6:30 P.M. CALL TO ORDER Scott Lucke led the audience and Council in the Pledge of Allegiance. PUBLIC HEARINGS Continued Public Hearing -Proposed South Kitsap Fire and Rescue Temporary levy lid lift -Proposition No. 1 Dan Olson, Deputy Fire Chief for South Kitsap Fire and Rescue expressed Chief Senter's apologies for not being able to personally attend the meeting. Deputy Chief Olson stated that the risk level for the community rises with increased population and response time. At this time approximately 90 percent of calls are responded to within 10 minutes. Time is precious when responding to a heart attack or stroke call, and if fires grow beyond one room there is a 10-fold increase in the risk level for civilian death. If cardiac arrest occurs, medication and procedures must be administered within six minutes or the chance of survival drops drastically. City Clerk Etgen clarified that the amount listed on an original staff report handed out to some individuals earlier in the day had been incorrect, and that the correct assessment cost for the levy lid lift per $1,000 in assessed value was .14 cents. Scott Lucke, a representative of the Fire Department Volunteer Association expressed his support of the proposed levy lid lift, stating he has experienced first-hand the shortcomings in time and response based on availability. He stated the levy lid lift would improve response time. Robert Hershey, Fire Commissioner for South King County, stated while he currently lives in Federal Way, he also owns a home in Port Orchard and plans to live here in a Minutes of March 6, 2006 Page 2 of 15 couple of years. Citing his experience as a fire fighter for 33 years, he urged the Council to consider supporting the levy lid lift, and emphasized the need to respond to heart problems quickly because of the affect on the brain within four to six minutes. He reiterated that fires would double in size if not responded to quickly. Kathy Lipka, Port Orchard resident, expressed her appreciation for the hard work the Fire Department does and supports the levy lid lift. She stated the Fire Department is understaffed and underpaid. Ms. Lipka noted she worked in the medical field and knows first-hand the importance of the first three to five minutes in responding to a heart attack or stroke. She and her husband have personally experienced medical emergencies, and stated time is of the essence in an emergency. She noted the increase is only .14 cents and not $14. Patrick Lucas, Port Orchard resident, stated it is important to support public safety, but the Fire Department has inappropriately signed off on substandard roads for new developments. He stated Fire Department vehicles need a certain radius to be able to respond to calls and it would be "throwing good money for bad" to hire more people when roads do not allow for response in emergencies. Mr. Lucas stated Goldenrod is a good example because a fire truck cannot turn around at the end of the street. Mr. Lucas stated the Fire Department should be held accountable. Bob Daugherty of South Kitsap stated he did not support the levy lid lift and that he had supported I-747. He feels law enforcement agencies and fire districts in Kitsap County should explore other ways to collect revenue and suggested a user fee. Taxes and fees overwhelm Mr. Daugherty, and that he always votes no on new taxes and urged voters to vote against the measure. Dousithee Chamberlain, resident of Port Orchard, stated a hammerhead is needed at the end of their street, and reported that an ambulance could not get to a retirement home, and a truck got stuck on Flower and Sidney, requiring another truck to pull it out. Jerry Arnett, of Port Orchard, stated the merger of Fire District 7 with the Port Orchard Fire Department was originally to create a savings for taxpayers, but that taxes have been raised and revenues lost since the merger. Mark Grimm, Chair of the Citizens Committee in Support of the Levy has lived here all his life and is aware of the required one percent cap due to citizen initiatives. He stated the increase does not keep up with inflation and allows for no expansion. Mr. Grim noted that the population had increased by 20,000 since he graduated, and predictions are for another 20,000 increase in population by 2020. He thanked Council for the opportunity to discuss the issue and stated the public has been very supportive wherever he has spoken. Tom Meyers has owned a business here for 35 years and was born and raised in the area. He normally does not support tax increase proposals, but he is in support of this request after reviewing the District's budget and seeing how administrative positions Minutes of March 6, 2006 Page 3 of 15 have been cut to put more personnel on the streets. Mr. Meyers reported the department is well run and he supports the levy. With no one else coming forward to testify, the Mayor closed the public hearing to further public testimony at 6:47 p.m. Council Member Clauson moved and Council Member Moore seconded a motion to adopt Resolution 009-06 supporting the South Kitsap Fire Department levy lid lift ballot measure on May 16 and urged voters to vote in favor of the measure. Council Member Clauson expressed his appreciation for everyone's testimony. He stated it was apparent through recent initiatives that voters wanted entities to ask for additional funding, which is what the Fire District has done. It appears the levy request has been reevaluated and a great deal of work was done to ensure that the District is asking only for what is needed. Not only is the population growing; it is growing older as baby boomers move closer to retirement age, creating more emergency medical situations. He stated he personally supported the proposition and urged voters to also do so. Council Member Moore stated he appreciates the service provided and concurred with Council Member Clauson's comments regarding the area's growth over the last ten years, and that if it continued to grow at the same rate, the additional funding would be necessary. Council Member Chang stated he was thankful for not having to use the services the District provided, and is personally in favor of the measure. Council Member Powers stated she is in favor of the measure and personally had to use the service a number of times in the past. Council Member Powers stated that while she was not generally known to want to spend everyone's money, she feels this is a good cause. Council Member Dilenno spoke in favor of the motion, saying she was not usually apt to raise taxes without being convinced of the need to do so, but that the information provided was sound and she thanked the District for addressing the issue and not just requesting the maximum allowed under the law. Upon vote, motion carried unanimously. Critical Areas Ordinance Assistant City Attorney Jacoby reported this is a continuation of the public hearing of December 12, 2005. He stated there had been confusion on two issues at the earlier hearing and Council had expressed the desire to hold a hearing so the public could comment on the ordinance as a whole, rather than just the proposed changes. Mr. Jacoby noted Council's second concern was to make sure notice was sent to all parties Minutes of March 6, 2006 Page 4 of 15 regarding the public hearing. Appropriate notice has been issued by the City Clerk's Office, and the City Attorney's Office notified several government agencies, including interested tribes, and all those who participated in the December 12, 2005 hearing about this public hearing. Mayor Abel reported there had been written testimony received since the December 12, 2005 hearing, and that a list of all correspondence received was given to Council and would be entered into the record. Assistant City Attorney Jacoby asked if Council wanted to consider time limitations for speakers in order to make sure everyone had an opportunity to testify. Council Member Chang asked if there was a way for Council to advise a speaker that they understood their point without the speaker continuing. Assistant City Attorney Jacoby cautioned Council against interrupting speakers, as this was the public's opportunity to provide input on the matter, as long as it was not repetitive. Council agreed to initially allow each speaker 15 minutes. In response to a question by Council Member Dilenno, Mayor Abel confirmed that there was no intent for Council to take action at this public hearing. Mayor Abel reopened the public hearing for public testimony 6:58 p.m. Dousithee Chamberlain, resident, stated he thanked the Mayor and Council Member Moore for creating a wetland in his backyard. Karl Duff, citizen, stated the December 12, 2005 hearing had been advertised as a public hearing but not more than one or two people had testified. He left the hearing in December with the understanding that another public hearing would be held in March. Mr. Duff stated he would speak on "Best Available Science" (BAS). 70 percent of his comments were related to specific science with the context from Kitsap County. He noted another speaker would discuss how it specifically related to Port Orchard. Karl Duff's testimony: On December 12, 2005, after an unsuccessful attempt to present the information to Council Members, he turned in 10 items to the County (City) Clerk, and upon checking, determined that none of the Council Members had availed themselves of the information. The documents included: • Comments from the Pacific Legal Foundation, the largest defense organization in the Country, if not the world, which identified four constitutional issues in the Critical Areas Ordinance as drafted; • Another opinion regarding judgments regarding mandating use of property for state and private use; • Kitsap County Critical Areas Ordinance (CAO) demonstrating that 15 to 20 percent of private property has to be put behind fences; • Demonstration of evidence in County policy was provided to make sure the City did not fall into the same problems by establishing private property for wildlife; Minutes of March 6, 2006 Page 5 of 15 • An advisory memorandum from Attorney General Christine Gregoire in December 2003 with strong guidance to avoid unconstitutional takings of property; • A package of 10 Pacific Northwest Science papers justifying small buffers and a signature sheet showing it has been ignored but promulgated by other government entities; • A document called a comprehensive review of Kitsap County's water places; • A copy of Kitsap County's flawed summary of BAS showing basis of document is plagiarism of another scientist; • A short summary exhibiting a predisposition of regulations established thus far by the County with 60 to 70 percent of decisions oriented towards wildlife and not public safety, public health or salmon; • A BAS database paper created by a straightforward group of graduate students containing excellent data. The data shows 78 percent of the buffers cited in the paper are less than 100 feet and the average in the database has 78 percent of the buffer recommendations at an average of 50 feet, not 200 feet. The Department of Ecology has an excellent BAS database and he had been to their presentations. Last October, he noted, Mr. Stockdale of the Department of Ecology (DOE) said there was an uncertain core sediment factor of five, of fine sediment of three, and wildlife of 12. He was glad to turn the information in. The biggest problem with the BAS is that Dr. Chris May's paper of 2003 is in high standing and a frequent reference for the County. He was not sure what the City has used, but it is beyond any guidance in the Growth Management Act (GMA). It goes into restoration and uses "enhancement and restoration~~ and "restore and rehabilitate" in a recurring manner in the management of zones and buffers for riparian areas and calls for the reestablishment of old forests in the County. A large buffer of 30 to 100 meters is called for woody debris. It drives everything to large buffers. Dr. May's recommendation is 30 meters. It's skewed. This is why caution is necessary if using this reference for the CAO. A three-page synopsis of the 10 pages referred to could be read in 10 minutes. It has highlights opposed to Dr. Flora's paper. If using Kitsap County's document for guidance, be alert to being unwittingly accepting of it or staff's recommendations. There were some frequent changes by staff, which did not go to the County Commissioners, and some changes were even made by staff after the commissioners acted on the ordinance. One thing deleted from the County's CAO pertained to water-dependent activities and waivers for things like ferry docks, marinas and boatyards. The Kitsap Alliance of Property Owners (KAPO) filed an appeal with the Growth Management Appeals Board that is anticipated to go before Superior Court in the future. Council Member Dilenno asked if Mr. Duff had an opportunity to look at the City's ordinance. He responded no, that he scanned it and absorbed perhaps 70 to 80 Minutes of March 6, 2006 Page 6 of 15 percent of it, but that there was a person who would testify who had scrutinized it more for details. Dousithee Chamberlain, resident, asked whether he could put signs up in his yard. Patrick lucas, resident, stated that along with the sign question, there were constitutional issues to consider. He stated he read in the newspaper that local governments like Port Orchard are misinterpreting the intent and reason for the constitutional change, and that people want the change to be fair and equitable to everyone so that when people own something they can do with it as they please while being respectful to neighbors and life. He stated there are a lot of doctors and others with degrees but that when it comes down to it, do you want to live like those in California, and stated people come to Washington and Oregon to get away from California. He stated the science needed to be looked at before any changes could be supported. William Palmer, citizen, stated he wanted his November 14, 2005 letter that Council Member Wyatt had introduced to Council be entered into the record. He stated the letter was to the Board of County Commissioners as testimony for their CAO, Draft Two. The letter questioned whether there was a need to update the County's CAO at all. He argued that the County had a greater responsibility to address the issues relative to their 10-year Comprehensive Plan review. He cited references in the GMA that he believed supported his position then and that he believes still are applicable. Mr. Palmer stated the City does not need to take any action to update the CAO at this time. Obviously a step has been taken in that direction with the public hearing in December and continued tonight. No one has probed the question of whether there is a need to update the CAO. He has been through the provisions in the ordinance and while he agrees some of them are housekeeping in nature, there are others of concern. He questioned several items in the staff report, including the Washington Administrative Code (WAC) citation outlining the criteria to be reviewed in determining the BAS and questioned who on the staff was qualified to make the judgment about BAS. Mr. Palmer stated it is implied that the City will rely on BAS that comes from the State and information promulgated by different State agencies, including the Department of Fish and Wildlife (DFW) and DOE. He stated Mr. Duff's testimony made a serious challenge to the BAS expertise of the State, and that there are questions in the minds of several scientists who work actively in Kitsap County about the BAS document the State put forth. He questioned the meaning of the second paragraph in the staff report, asking how the City would incorporate the changes the County made in updating the CAO. He stated he did not believe there had been numerous public hearings and meetings about the CAO as stated in the staff report. He questioned when the SEPA review had been conducted and what the findings and conclusions were. He stated they should be included in the staff report. Minutes of March 6, 2006 Page 7 of 15 Mr. Palmer displayed a map showing an area the County failed to address in their CAO noting the difference between urban and rural environments. He stated Port Orchard does have areas that the County has classified as rural that the City may want to annex at some point in time. If the CAO is going to be updated, he stated, there should be a distinction between the rules and regulations appropriate to urban and rural areas. He gave an example of a 4.5-acre site that happens to be in the County but close to the City and could be annexed at some point in time. He stated the County's current ordinance for the wetland area would require a 50-foot buffer and a 15-foot building setback. He talked about how the site would be impacted by the 50-foot buffer. He showed how the same buffer required an additional 30 feet be added because it was classified as urban, making it much larger and reducing significantly the amount of developable area on the site. He stated it basically wiped out one building when the 15-foot building setback was taken into consideration. The financial impact, he stated, is also significant. Mr. Palmer referred to Section 4 of the proposed CAO under General Exemptions subparagraphs 8 and 9 that relate most directly to the flood hazard ordinance and allow for some reconstruction and remodeling, but don't provide for an increase in the area beyond the existing ground coverage except for single family structures where you could expand the footprint by 25 percent. He asked how the provisions would affect waterfront properties. He referred to Section 6 subparagraph 2d regarding nonconforming structures that were damaged or destroyed by fire or an explosion. He stated he had a client on Bainbridge Island with the exact experience with a nonconforming structure of significant size that was totally destroyed by fire in January of 1997 and the owner tried unsuccessfully to rebuild the structure; the City would not let him. Time ran out, so he went to court over the issue. The individual lost the ability to rebuild because he could not do so within the 18-month timeframe. Sometimes insurance settlements do not come in a timely manner constricting owners in their ability to comply with timelines, and a city should allow for a provision to extend time. Mr. Palmer referred to Section 14 in the Definitions section and said the BAS definition needs to be looked at, as it is a concern to him. Section 19, subparagraph 19 talks about channel migration zones, and he questioned where there was a river flowing in Port Orchard that had a channel migration zone. He questioned the flood plain in Item 52. Kathy Lipka, resident, stated she has lived most of her life on the peninsula and bought a home in South Kitsap and she did not know there was a critical area in her neighborhood, but now there is a wetland behind them she wondered where a proposed building would be built because the area is listed as a greenbelt. She stated it was bad enough when trees are cut down, and wetlands change over time. Minutes of March 6, 2006 Page 8 of 15 Ms. Lipka talked about landslides along Blackjack Creek and flooding due to building being allowed. She stated she now had floodwaters down her street and water in her carport and yard. She stated at one time she had water up to her ankles when walking over the land behind her home. She feels the CAO needs to address areas being developed and how the areas will be impacted. Ms. Lipka said the trees have been cut down and the area is no longer wet in some cases. She said the frogs and the eagles have been pushed out and the entire area is critical to their habitat. She asked if the CAO would make it easier for people to develop land that should not be developed, or require it to be done very carefully. Richard Brown, citizen, stated he had been at the December 12th meeting where Council directed staff to make minor changes in the CAO. He stated that the changes were not reflected in the document. He stated Section 14 subparagraph 29 requires title transfers to include information on encumbrances. He asked why homeowners should be stuck with items like this on their deed and asked how it would be removed from the deed if the wetland dries up. He stated the information on the title can prohibit financing. He asked whether title insurance representatives would stand for the requirement. Mr. Brown stated he had not seen the proposed changes and would have liked to have access to them earlier so he could talk about them intelligently. He stated Chapter 4 Section 3 sub 1f referred to 30 percent of the live tree crowns being removed with the total buffer thinning not to exceed 25 percent. He questioned if it would cause problems if a development had to put in a large retention pond. Mr. Brown expressed his belief that the process needs to be open to the public and ongoing. He stated everyone is appealing the County's CAO and as long as the Growth Hearings Board has everyone by the throat, Council should be careful. He questioned why the City is moving forward making changes and taking wildlife habitat and setbacks when they don't need to. He stated he agreed with Mr. Palmer's letter of November 14. He asked why Council would change the CAO if it is not necessary and risk a lawsuit. Council Member Geiger joined the meeting at 7:30 p.m. Ron Rice, resident, stated Item 134 in Definitions talks of a wetlands specialist and he recommended the City employ a decision maker rather than force small property owners to hire an expert to make a presentation. He referenced General Chapter 2, wetlands, and stated it appeared to be in conflict with the City's mandate to concentrate urban growth within the City. Steve Kalinowski of the Department of Fish and Wildlife stated he is an area biologist and staff person working on the CAO review for the County. He commended the City for taking on the task and noted that if land management were easy, everyone would be out of work and have the right answers. He stated the City's draft CAO was a good starting point with good policy in an attempt to protect natural resources as well as human resources. Minutes of March 6, 2006 Page 9 of 15 Mr. Kalinowski stated the DFW submitted a letter with comments dated February 24, 2006. He noted the BAS is an important tool, and that the BAS is a compilation of all the sciences available, but there are different ways to look at it and most of the science is in the habitat species. Riparian fish passage has had major studies performed and he has heard discussions of studies about short buffers and is aware there are some states with 5-kilometer buffers on water. He stated there are extreme studies in both directions. Mr. Kalinowski stated they have a couple of specific recommendations, including the use of the Stormwater Management Manual for Western Washington developed by DOE in 2005. He stated it is important to use the latest work because the documents are reviewed and updated as science is completed over the course of years. He additionally recommended review of the impact of buffer widths in riparian areas, wetlands and streams. He stated he had no specific recommendations, but whatever decision is made should take into consideration social, biological and cultural issues. Mr. Kalinowski reported there are several places in Class I and II, Fish and Wildlife Conservation that the term "fish" needs to be added when there is talk of wildlife. Bank stabilization needs to be addressed in specific areas. When there is building close to an unstable bank there needs to be a requirement for retaining walls, bulkheads and erosion protection structures. He suggested using integrated stream land protection guidelines as a way to protect and identify causes, because sometimes the cause is not evident by looking at the problem, and can be upslope or upstream. Maintenance of culverts is an ongoing management issue but there is a method of designing them that meets all criteria for fish passage and protection of habitat and significantly reduces the amount of maintenance, although there are more upfront costs involved. They provide a benefit to both the community and industry because properties are cut off by flooding and washed out roads when culverts are not properly installed and there is a substandard road crossing structure. Vivian Henderson, KAPO, noted the proposed changes were not made available to the public until today. Planning Director Long-Woods noted that the only changes made to the document were as directed by the Council at the last meeting. Ms. Henderson stated she felt Port Orchard's CAO reads like Kitsap County's which reads like King County's CAO. She stated people do not have a "clue" about what is going on and how it will affect them. She is still trying to understand why, when wildlife is protected, the whole City becomes a critical area. She stated she felt the whole issue is remote to citizens and they do not understand how it will impact them until they find out their neighbors have a wetland buffer requiring them to move their kid's swing set. She does not believe private property can be taken by the government using tax dollars to do so. She stated she did not have any specific comments about the CAO, but is concerned about the issue of notice to title and she encouraged Council to have a title officer make a presentation about the consequences of this requirement. She reiterated that KAPO Minutes of March 6, 2006 Page 10 of 15 has filed an appeal against the County's CAO and stated the City has not had enough citizen participation in the review process. William Palmer addressed Section 2 and 3, fish and wildlife and development standards. He asked why the statement about development standards was necessary for the purpose of designating a fish and wildlife habitat conservation area with a buffer as a critical area. He asked whether the City had designated any specific habitat conservation areas on a map and whether it was available to the public. Mr. Palmer referred to subparagraph 1 saying buffers or setbacks shall remain undisturbed natural vegetation areas except where the buffer can be enhanced to the natural attributes, and said he had a problem with the inclusion of setbacks where there are buffers for buildings and impervious structures that allow someone to move their building, structure or impervious structure for maintenance purposes without crossing over into the buffer and saying the setback shall remain undisturbed. He said the language was not specific enough about disturbing buffers and it does not take into account where the buffers are, such as on a steep slope, and what the impacts would be when doing something to disturb the buffer, like laying a sewer line under it. Section 3, like Section 14K, Mr. Palmer stated, refers to a chart of Type 4 fish and wildlife conservation development standards and again talks about channel migration zones. Subparagraph G also discusses building and impervious structure setback lines saying the setback is 15 feet for any fish and wildlife habitat conservation area buffer. He questioned what BAS had been used to determine which intrusions would be problematic. Chapter 4, geologic hazard areas, Section 3, development standards, subparagraph 8 is a new paragraph referring to minor pruning of vegetation and treatment for view enhancement. Mr. Palmer remembers driving along Highway 166 in the 1970's and 80's when there were all types of vegetation and trees on the slope. A geologist advised that the trees had gotten so heavy that they were tearing out the slope and causing the slope to be unstable, resulting in their removal, and yet the CAO provision does not allow for that type of action. Referring to Chapter 6, critical area aquifer recharging areas, Mr. Palmer asked if the City has a map of the areas and is it available to the public. He stated it has always been a problem to review text without maps to know which regulations apply to the area. Ron Rice, resident, expressed concern about the changes to the CAO. Mayor Abel advised all the changes on the CAO were either before Council previously in December, or had been added since the meeting at the request of Council. Mr. Rice stated the requirement for impervious structure and building setbacks for critical areas being attached to titles was a huge change and questioned when it had been brought to the attention of the public. Minutes of March 6, 2006 Page 11 of 15 Karl Duff stated one of the items he had previously submitted was a Supreme Court case dealing with the taking of private property and requirements of property owners associated with granting a permit. He stated a jurisdiction has no other authority to take property than through eminent domain, which is consistent with the Growth Hearings Board findings. The GMA does not require enhancements and he feels the draft CAO was influenced by others through their opinions and the Growth Management Board would throw it out. Tim Matthes stated the Council and Mayor are between a rock and a hard place as far as the GMA is concerned. He stated the urban areas are supposed to carry the ever- increasing load for residency and yet the CAO is for more rural areas. He noted there is no staff time to conduct the BAS review and that adopting the County's CAO is a "knee- jerk" reaction. Council Member Dilenno asked Mr. Duff about the impact of the 200-foot setback on Port Orchard's two prevalent bodies of water; he stated he did not know, and there is a lack of criteria to make the determination. There has been no measurement on impacts since the 1999 study. Mr. Duff noted that he has testified that in the vast majority of the database available on buffers, that 78 percent are less than 100 feet and the average is only 50 feet. He stated he felt most larger buffers were created because it sounded good and safe for the enhancement of the quality of life but that there was no evidence to support the habit. Mr. Kalinowski stated there have been no long-term studies about the value of a 200- foot buffer, and that most studies review thousands of miles of streams through various jurisdictions. There are few studies that have been done in the northwest. Stream studies in the Andes and Cascades have been used and there are differences in local conditions but they are not totally different systems and can apply. Council Member Dilenno referred to an attempt to improve salmon runs by British Columbia, working with Washington and Oregon. The results indicated to appear that setbacks had less to do with recovery than loading the streams with nitrogen, replicating the effect of dead fish. Mr. Kalinowski stated that often symptoms get treated but original conditions do not get addressed. He stated he is responsible for the eight coastal counties from the Columbia River to the Straights. In response to a question by Council Member Dilenno, he stated it is fair to assume there is a different response to setback by streams due to their orientation and whether they go through steep ravines or flat and meandering lands. Mr. Kalinowski stated slopes create the number one geologic factor in stream consideration, and that he is familiar with Highway 166 slope problems. He stated floodplain areas also require a different review process. Council Member Geiger discussed area problems regarding raccoons and possums with Mr. Kalinowski. Minutes of March 6, 2006 Page 12 of 15 Mr. Duff discussed two rivers on Vancouver Island that experienced heavy logging in the 1940's. One was artificially rehabilitated with large woody debris and dams, resulting in inferior salmon and steelhead while the other river was not artificially rehabilitated. He also referred to 62 stream sites on the Olympic Peninsula where streams that have only 10 to 30 meter buffers with riparian factors with no significant impact on fish, birds or mammals. He stated another study involving insects demonstrated that streams with no canopies do better than streams with canopies, providing more food for fish, so if the goal is to enhance the fisheries, then narrower buffers are desirable. He stated a narrow buffer would be 10 meters. Mr. Duff referred to another study regarding habitat on seven coastal rivers between 1923 and 1948 where the rivers had differing habitat, forest and logging practices. He stated all the rivers showed the same annual fisheries production, independent of habitat, and that samples taken in the ocean bottom found the same variation in non- salmon fisheries. He stated that study "put the lid on the coffin" of those claiming habitat in the rivers drives fish population. He stated all applicable science has not been used in Western Washington and Western Oregon studies; science from Illinois and Georgia has been utilized. Tim Matthes stated that before stringent regulations are adopted creating habitat based on ambiguous functions or values, success has to be studied. Mr. Rice stated wide buffers allow for wildlife corridors, not stream or wetland protection. Planning Director Long-Woods reported the requirement for noting critical areas on titles means the reporting of steep slopes, wetlands and buffers and is meant to give notice to perspective property owners about potential restrictions on their ability to develop the land. There is a tax reduction for landowners who have critical areas title notations through the Assessor's Office because of the inability to develop the property. She stated this requirement is not a change in the current CAO. Assistant City Attorney Jacoby noted the terms regarding buffer widths and requirements for building adjacent to a buffer were intentionally different. Ms. Long- Woods stated setbacks are reviewed as part of a permitting process and the notice to title for critical areas is associated with natural vegetative buffers. Council Member Powers asked whether there was a legal requirement to attach notice to a title regarding critical areas. Assistant City Attorney Jacoby advised staff would research the question and provide Council with responses to all questions Council has regarding the issues brought up at the hearing. Council Member Moore asked whether the CAO had to be changed. Assistant City Attorney Jacoby responded that yes, the Revised Code of Washington (RCW) specifies that the cities and counties shall review their CAO's and include the basis for the development of their policies and development regulations to protect the functions and values of the CAO, incorporating the BAS. He reported that the State of Washington Minutes of March 6, 2006 Page 13 of 15 has taken the lead in assisting counties and smaller cities by putting together a list of documents the State has concluded contains a good variety of science on issues relating to critical areas. The list is literature that the City can refer to, along with local science, when questions come up. Assistant City Attorney Jacoby noted that there is nothing either the State or courts have recognized that says that the CAO buffers should be different in rural or urban settings. He suggested the CAO should allow the opportunity to mitigate the reduction of buffers by addressing ways to average and reduce buffers. Council Member Geiger addressed the question of why the notice to title requirement for critical areas was included in the CAO update in 1999, stating it was decided that it would be impossible for the City to track information about all properties and make sure new or prospective property owners were aware of any restrictions, and the noticing of titles was a way to ensure the information was transferred. Mayor Abel stated this is also a way to pass on information about areas where more infill has been allowed for wetland mitigation. Council Member Moore expressed concern about the ability of a property owner to remove the notice if circumstances on the property changed. Planning Director Long- Woods noted that the conditions on all permits are available in a land based information system through the County, and that would be one way to track the information. Ms. Long-Woods stated she had been directed to eliminate the F&W new stream typing and the new rating criteria, and that any other changes had been made months before this current draft. She stated this is the sixth edition of the CAO and that it has been printed each time and provided to the public. Council Member Powers questioned how effective the current CAO has been and whether or not there are problems as a result. Ms. Long-Woods stated they had hoped to receive a grant to hire someone to prepare a wetlands inventory, but she just found out last week that they did not receive the grant. There is the possibility of another funding source and she will proceed to apply for those funds. The inventory would provide information on differences between 1999 and current conditions. Mayor Abel proposed the Growth Management Committee take on the task of reviewing the testimony and documents that have been submitted to date. Council Member Chang stated he was not clear on what Council is required to do and asked if King County or Pierce County's CAO's should be reviewed. He stated it appears there is no staff time available to do extensive work and so the City will have to rely on other sources of information. Assistant City Attorney Jacoby advised that Kitsap County and Kitsap County city CAO updates were due on December 1, 2004. When every city and county said the deadline was impossible to achieve, it was changed to December 1, 2005. The City is currently out of compliance and therefore not eligible for certain funds, which to date has not Minutes of March 6, 2006 Page 14 of 15 been an issue for the City. Mr. Jacoby noted the State is aware that the City is working diligently on the CAO update and he would be shocked if there are repercussions because of the missed deadline. He stated one of the provisions in the GMA is the use of BAS, and the wording does not say you "may/fuse BAS, it says you "shall' use BAS. Assistant City Attorney Jacoby reported that BAS operates on two levels; one in association with the basic provisions of the CAO wherein the buffers and critical area establishments are to be supported by BAS, and the second level pertains to the permitting requirements for individuals who want to develop their property so that an objective body of evidence is used to set standards, and it is in a form the public can review and use as a measuring stick. Council Member Geiger asked about the wetlands inventory; Ms. Long-Woods stated maps have been recently updated as a result of the Subarea Plan work, and that inventories are necessary for updating maps. Council Member Powers questioned the requirements for reconstruction or restoration of nonconforming structures as given in an earlier example with a fire; Ms. Long-Woods stated it has been her experience that extensions can be granted for extenuating circumstances. She stated this might be already spelled out in the Zoning Ordinance. Richard Brown stated property cannot be sold without a full disclosure statement. He questioned a section of the draft CAO calling for long-term conservation and questioned whether the Council should adopt it. He noted that there were studies discussed years ago regarding salmon habitat, and when environmentalist found there were no species on the East and South Sound, monies dried up and only a few streams have been studied. If there was interest, he said, in solving a supposed fish problem, Blackjack and Ross Creeks should be monitored. 15 years ago, he stated, Indians cut all the logs out of Blackjack Creek under a grant. He reported the "salmon people" have money and should be asked for it to determine what has happened between 1999 and now, but no one is interested. Priorities have changed from saving salmon to saving habitat for species. Mr. Brown stated he did not believe the City Attorney, and that there is nothing in the GMA calling for an update of the CAO. Mr. Brown stated he felt Bethel Avenue was a more critical issue for the City to be considering. Vivian Henderson stated it was not as easy as Ms. Long-Woods reported to remove a notice to title. She knows of many situations where deals were not made because of waiting for titles to be cleared of notices. She stated she was not aware that there was a provision for tax breaks for individuals with critical areas. Continuation of Meeting Past 9:30 p.m. Scheduled Adjournment Council Member Diienno moved and Council Member Clauson motion to continue the meeting for five additional minutes. motion carried unanimously. seconded a Upon vote, Minutes of March 6, 2006 Page 15 of 15 Council Member Powers requested the reference to channel migration be taken out of the draft CAO. Council Member Diienno questioned why the notice to title couldn't be placed on the face of the site or plat plan for the purpose of conservation rather than the title. In response to a question by Council Member Diienno, Ms. Long-Woods advised there are floodplains within the City. Mayor Abel advised the updated maps would be provided to Council. Council Member Geiger discussed personal observation about property that had wetlands on it and how it had affected the property use and value. Council Member Diienno moved and Council Member Moore seconded a motion to have the CAO material taken up by the Growth Management Committee for review and come back to full Council with a recommendation, and that staff is to provide answers to Council questions from this hearing. Upon vote/ motion carried unanimously. Mayor Abel closed the public hearing to further verbal testimony, but written testimony will be accepted until 4:30 p.m. on Friday the 10th of March, 2006. ADJOURNMENT At 9:35 p.m. Mayor Abel adjourned the meeting. Kim E. Abel, Mayor