Monday, December 3, 2007

Silver Beach Ordinance Redux: 5th Meeting Citizens Task Force

WARNING: The following information is LONG, boring to many, incomprehensible to others, and history that repeats itself!

The Silver Beach Neighborhood recently debated adopting a list of policy measures to address the issue of protecting the Lake Whatcom Reservoir.
Many of the items on the list were recognizable as elements of earlier discussions during the deliberations on the City's 'Silver Beach Ordinance', designed in response to the Dept of Ecology's 303 (d) listing of the lake for fecal cliform and dissolved oxygen levels.
Some were adopted and incorporated into the Ordinance, while others were not for various reasons.

It may be useful to revisit those earlier discussions again as a reminder of what was considered during those initial eight public meetings, which resulted in a list of unanimous, or near-unanimous, recommendations that were adopted.
The adopted recommendations -from meeting No. 9- were the subject of my 8/8/07 blog.

This general subject was also discussed or rferenced in blogs from October 9, 12 & 13 and Dec 3
Here is a Summary of the July 11, 2000 meeting:

1. All present except B. Bliss, T. Bornemann, A. Kanne.

2. Handouts:
• Insert to Silver Beach Impervious Area Analysis – June, 2000, by Mark Saunders, entitled “Model Rule for the Protection of Water Supply Watersheds” from New Hampshire Dept of Environmental Services

• Lot Coverage Chart (see below)

3. Comments by participants:
• Silver Beach Impervious Area Analysis – June, 2000, by Mark Saunders interesting, but needs short summary. In a nutshell, it concludes that original estimate of SBO effectiveness was under-estimated. There appears to be a substantially greater potential for protecting the watershed if SBO is fully implemented.

• Education continues to be key, both to residents and legislators as well as everyone who works or plays in the watershed. There are many users outside the City, and the County must also be a full and willing participant in water quality protection.

• Handouts from last meeting contained really good information. The recent Lake Whatcom stewardship award program is a good idea. Good examples of lake-friendly behavior are useful.

• An idea offered by a SB land use attorney: Consider identifying possible location(s) for a community park, then use Impervious Area Credits (IAC’s) to purchase the property or its development rights. Multiple benefits could be derived in this manner, including new open space or parks, watershed protection, reduction in vehicle trips, etc. But, because Silver Beach is already considered to have its share of park facilities, Greenways funds may not be readily available for this purpose. Instead, special watershed protection funding may be required. A potential area where this approach might be effective is in the extreme northeast corner of SB where several contiguous lots lack city services and roads. Much of this area is forested and contains substandard lots, making it an ideal candidate for some form of watershed protection enabled by an acquisition program. and/or creative thinking in interpreting variance criteria. This is exactly the type of concept that policy makers can encourage and establish.

• An example of “zero-scaping” was discussed, where special, drought-resistant plants have been employed to create a natural, low maintenance landscape at the A-1 Builders site, 3310 Northwest Ave. This site could be used as demonstration of good BMPs. Public education demonstration sites like this might be one way to earn quantifiable credit toward bonus impervious surface in the watershed.

• Incorporating education into the SBO could take the form of completing an instructional course in lake-friendly practices at the time a building permit application is obtained from Building Services Dept. Another idea is to have contractors working in watershed to receive mandatory instruction as part of their business license requirement. Instruction in BMPs for permitting or licensing is a good idea, but we need a to insure persistence in actually living up to the standards recommended

• SBO can be modified to incorporate new requirements, but practicality and simplicity are needed to insure these will be effective and enforceable. The main idea is to promote absorption, filtration and slow release of runoff, and for these purposes natural vegetation is both cheaper and more effective.

• Catholic religion teaches about mortal sins and venial sins, with the former recognized as being very serious. The trick is to find out how many venial sins one could have without getting into big trouble. There is a direct analogy in dealing with Lake Whatcom; by allowing more incremental development, we are slowing but still surely following the path of degradation, which ultimately will affect our children and future generations. SBO seems to be just slowing down this rate of degradation, not stopping it. A moratorium would stop it. Absent a moratorium, community support to stop promoting development is helpful. Since water quality is of prime importance, interested in what builders and developers are likely to do without strong restrictions. Temptation to persist in past practices is strong. Even federal water quality laws have not been able to correct known problems for 30 years. We need to take a strong stand now, even if this is not politically acceptable. All ideas presented to date are good, but slow teaching won’t solve the problem. We need a bold, long-term oriented, “shall not” law, like a speed limit everyone understands.

• When considering something like a moratorium, ask yourself if you don’t want others moving in, are you ready to move out? SBO is a practical, doable, near-term approach that has been proven to work by experience. It doesn’t presume to a monumental environmental turnaround, like cleaning up the Great Lakes or the Clean Air, etc. While its good to think big, most successes occur from cumulative steps based on clear thinking and good science. A moratorium for SB alone might well cause more resistance to positive change than promote it. COB can’t save the watershed alone based on SBO, but we can monitor and report the results, identify lands to preserve and funding sources as our fair share and as an example to the County. Even protected watersheds like the Cedar & Tolt reserves are not totally problem free, having some air-borne pollution, fecal contamination from wildlife and runoff from logging.

• Considering science versus politics, the SBO is monumental in some ways. This Citizen’s Task Force is being asked to take an active hand in being responsible for the future of the watershed. If SBO works, fine, but we should not allow politics to dominate decision-making. Even without SBO or additional development, degradation was already happening. The Herald’s recent editorial recognized that. Look at SB as a mini test lab to determine if results are likely to show improvement. This will help in determining watershed bearing capacity and better ways of doing business in the watershed.

• City Council will be introducing a Watershed Land Acquisition Resolution on 7/17, in response to the 1992 Joint Resolution by City, County & Water District 10, its reaffirmation in 1998, Proposition 1 in 1999, and comments from this Task Force. In this regard, SBO is an important incremental step to build awareness of the problem and momentum toward tangible ways of solving it.

• The Surface & Storm Water Utility Ordinance upgrade and levy anticipated later this year, also recognizes the inadequacy of existing COB funding to meet State and Federal requirements. This has resulted in projects like the Mt Baker Highway and the City’s annual street replacement program being delayed or cut back. These new funds do not provide for land acquisition.

4. Summary of Ideas for Application to SBO:
• Agenda shows CTF focusing on impervious coverage tonight. There may be actions to consider in return for possible rate relief or other trade-offs. We have such a large a list of ideas developed already, it may be impossible to practically incorporate them all. Need to put together a proposal showing how some of these can be incorporated into SBO.

• During last meeting we considered USES and ADUs. Tonight we will be looking at IMPERVIOUS SURFACE requirements. SBO made a major reduction in impervious surface area allowed, to the greater of 2000 SF or 15% of lot area. Any incentives will be based on these limits, trading on equivalent hydrological BMPs. Need direction in defining and quantifying impervious surface. For example, are any of the following considered impervious; partially pervious; pervious?
-4’ overhang, with ground underneath
-2nd story breezeway, with ground underneath
-augured cast piling foundation, 4’ above ground

• One method of systematically determining an individual lot’s eligibility for an impervious bonus might be a tiered, filtering checklist process during permitting. First, lot size is considered, then its criticality to the watershed, then existing vegetative cover, and finally any voluntary actions agreed to in return for trade-offs.
• Lot coverage chart:

A = Acre %
B = Lot Size
C = Imperv SF
D = Cover %
E = Bonus1 SF
F = Cover1 %
G = Bonus2 SF
H = Cover2 %
I = Bonus3 SF
J = Cover3 %
K = Bonus4 SF
L = Cover4 %

5000 2000 40 178 43.6 500 50 750 55 1000 60
6000 2000 33.3 178 36.3 500 41.7 750 45.8 1000 50
7200 2000 27.8 178 30.3 500 34.7 750 38.2 1000 41.7
10000 2000 20 178 21.8 500 25 750 27.5 1000 33.3
12000 2000 16.7 178 18.2 500 20.8 750 22.9 1000 25
13333 2000 15 178 16.3 500 18.8 750 20.6 1000 22.5
33.3 14520 2178 15 0 15 322 17.2 572 18.9 812 20.7
16666 2500 15 0 15 0 15 250 16.5 500 18
18333 2750 15 0 15 0 15 0 15 250 16.4
20000 3000 15 0 15 0 15 0 15 0 15
50 21780 3267 15 0 15 0 15 0 15 0 15
23333 3500 15 0 15 0 15 0 15 0 15
26666 4000 15 0 15 0 15 0 15 0 15
100 43560 6534 15 0 15 0 15 0 15 0 15

Total Imperv: 2000 2178 2500 2750 3000

[apologies for the complicated table]

• SB is zoned 2DU/acre, meaning a standard lot qualifies for 15% impervious area or about 3267 SF., plus the possibility of various bonus scenarios. The table shows at a lot size of 13,333 SF, 15% cover equals 2000 SF. All smaller lots also qualify for 2000 SF impervious area, but higher proportional percentages of impervious cover. Larger lot sizes qualify for 15% impervious area, at a proportionately higher square footage of impervious area. Is this an equity issue; should lot size matter? The 2000 SF minimum provided by SBO allows a workable range of uses. Lot size distribution of remaining undeveloped lots shows a majority are of substandard size. (less than1/2 acre)

• Example of current home design using SBO limits: A 10,000 SF lot with 2120 SF footprint on 1st floor and 1100 on 2nd floor, with 3-car garage (780 SF) included and no paved driveway. Instead, pavers are used which are 4 times as expensive as paving, mainly due to extra foundation work to ensure stability and drainage. Landscaping is totally native vegetation. Extra footprint was granted in return for donation of open space. Footprint allowed limits design, and some variety is needed for salability, so all homes don’t look the same. Large rambler home design, garage, driveway and patio uses can add significant impervious area if allowed.

• Is SBO a veiled downzone? Larger lot sizes are needed to meet criteria and still preserve usual amenities requiring impervious surface. Supply & demand experience says that if fewer lots are available, then price goes up. If a 5000 SF isn’t adequate, then a 2nd lot adjoining can be bought and consolidated. Problem is there aren’t many adjoining or contiguous pieces available in SB, just small parcels scattered about, some of which are landlocked. Practically, many of these can’t be used because of small size, lack of services, etc. This is why a concept like transferring impervious credits would be useful in adding flexibility and equitability to SBO.

• Exacerbating this problem are COB codes that can also drive undesirable economic outcomes. For example: 5000 SF lot with no road must extend road and utilities, further driving up costs. Very few homes are available in SB for less than $180k; most lower cost new homes are selling in the $210 to 240k range. Unserviced, no frontage lots might be listed for sale at $40k to $60k up to $106k, depending on costs of providing streets and services. Serviced lots may command twice what unserviced lots cost. If it were possible to match up some of these “orphan” lots with buildable ones, then multiple advantages might accrue, including elimination of need to extend roads and services –which perpetuates the desirability to develop- and the area might remain forested or naturally vegetated which would be beneficial to the watershed.

• A “Transfer of Impervious Credits” system, similar to TDRs, could be instituted within SB, where owners could buy “TICs” from one approved lot to apply to another more buildable one. Alternately, COB could purchase TICs from an area to use as stormwater storage, for example, then sell these TICs to owners wishing to increase their building footprints. The beauty of a scheme like this could be manifold; seller gets some tangible value, buyer gets a marketable benefit, property remains partially useful on tax rolls -possibly at reduced assessed value- and natural vegetation remains undisturbed to benefit watershed.

• TDRs require a covenant restricting building a structure on lot -in a designated sending area-since this right is legally transferred to another lot -in a designated receiving area- and recorded on the title. TICs could be structured similarly, except lots next door or within the SB neighborhood and watershed might be used.

• How would you fix the value of a covenant on, say, an unserviced lot listed at $40k? After sale of TICs at market value, the lot would retain spatial rights, privacy rights, value of screening, rights for “soft” uses, timber status, etc. Buy/Sell arena would be defined by eligibility criteria to meet public purpose, legalities to inform potential buyers/owners of restrictions, etc. Receiving areas for TDRs from watershed are now established in the UGA. These are based on density, not impervious area. For example, a designated receiving area –a UGA area zoned for 4 dwelling units per acre (DU/Acre)- could receive up to 2 additional DU/Acre for a total of 6DU/Acre, but only if these come from designated sending areas in the Lake Whatcom watershed.

• Who are beneficiaries? Adjacent property owners? Differing opinions, e.g. view property versus natural vegetation/trees. Localized benefits or detriments are both possible, but the broader benefit of less total impact on watershed may take precedence. Bad idea to just level property, without considering long-term impact of this. A ‘shotgun marriage’ of 2 lots where impervious incentives can be bought, enhancing watershed protection goals, and minimizing development pressure seems a good idea.

• Example, as an owner of an undeveloped 1/3 acre lot; what is it worth to purchase additional impervious area? Could you buy an additional 2000 SF of impervious area with a smaller, unserviced lot for $40k? Waterfront lots now sell in the $500k range and up. If a viable TIC market can be created, this could work more inexpensively than outright purchase of property. If a TIC market can’t be created then it may be better to not allow building or extra impervious area at all. Also, what is upper limit? Possible TIC criteria might include as a minimum:
a) sending lot doesn’t front on an existing road or services
b) sending lot is already forested and will remain so
These two basic criteria might apply to the area in the extreme NE corner of SB. Other criteria with lesser beneficial impacts might be scaled accordingly. Can’t address all possibilities, but can define most important criteria.

• CTF recommends a TIC system be drafted for its consideration. A COB trial program might also be effective, where COB buys TICs in an area using dedicated SW funds, then sells back TICs to repay purchase. Advantage: roads don’t have to be built –discouraging further development-, forest remains in private hands with restrictions, TICs can be used elsewhere, COB gets paid back with monies that can be used again – essentially a revolving fund, used in a most effective manner. A potential quandary exists with Stormwater funds: they can only be used to build capital improvement treatment facilities to mitigate existing problems, but not non-structural remedies that prevent problems from happening? Our Lake Whatcom Stormwater consultant has demonstrated and recommended that non-structural, preventative approaches are much more effective and much less costly than structural, remedial actions.

• What is the absolute maximum impervious area allowed for homes? Per land use code, up to 5500 SF is the maximum allowed floor area for any structure without a conditional use. Up to a 5250 SF structure on a 7500 SF lot is theoretically possible, since that is the absolute 70% impervious coverage limit per lot. Even with this underlying regulation in place, there appear to be several homes that exceed these limits, especially when driveways, garages and patios are included. If a TIC system is used, some owners could potentially still buy additional TICs, up to these limits, unless other limits are specified in SBO.

• What are some functional differences between properties in watershed? (criticality factors)
-lands next to water bodies are generally most valuable related to impacts
-headwaters of streams are more affected by land clearance because pollution drainage would travel entire stream course down to the lake
-if preserving wetlands, upland areas are preferred
-if buffering, front row seats are most valuable
-if storing stormwater, higher areas are more valuable
-for slope stability, steepest is best
-for nutrients, where soil is richer is most important
Complex! How to simplify? 2000 SF or 15% is simple. We need this to preserve a reasonable opportunity for all owners, regardless of lot size. Keeping it simple, why not address only fairness inequities by TICs, and don’t expand it as a gimmick to add impervious area for anyone that wants it and can afford to pay? Two notions: Relief and Incentives for ‘better than minimum scenarios’.
Relief means a variance, or exception to rule, or opportunity to purchase relief from hardship.
Incentives use a market to achieve more work than a legal minimum would achieve. Free enterprise can do some of this work, providing rules are clear. A TIC system in SB might be an opportunity to allow incentives to benefit those who wish to buy them, thereby helping to protect the watershed in very beneficial ways. (e.g. Land bank an up-slope, forested area in return for smaller impervious impacts to benefit homeowners, all paid for by homeowners)

• CTF would like to see a draft outline for a TIC system, which can be incorporated into SBO. Limit this to COB for now, with possibility of expanding it later.

• Some thoughts regarding the use of the Silver Beach Ordinance from a design standpoint. The Ordinance establishes a list of parameters that should be considered during the design process (to earn additional impervious surface credit). These include:
i) soil disturbance season
ii) percentage of impervious surface area
iii) zoning-density
iv) storm water and run-off management
v) soil type and topography
vi) infiltration improvement
vii) landscape contributions
viii) TDR's

If the intent of the inclusion of all these characteristics is made clear to the design community, any and all of them can be used to lessen the impact of new construction and property improvements. This can be accomplished with trade specific training and education provided by the city.

The administration of this ordinance could progress through Building Services as follows:
I. The application is made to Building Services for permit. At the application date the documents are checked for inclusion of all the necessary information before passing the packet on to the other departments for review.
II. The package of documents then moves to the Planning Department where issues of zoning, shoreline review, variance for use or density increase, % of impervious surface area are considered. In addition this department could review the proposed landscape plan with emphasis on preservation of native vegetation, use of recommended species, and total lawn area are approved.
III. The plans then move to the Public Works department to consider the alternate paving methods proposed, soil disturbance plan, run-off management plan and catch basin design is reviewed along with the current requirements for road design or improvements.
IV. Then the plans return to Building Services for structural and safety review.

This is the approximate sequence that is used now. The major item that has been added is any reference to the landscape review portion of the approval process. This will take more time than the current process but since the total number of permits affected by the Ordinance is likely to be small at any time, it seems possible to add this extra review time.

I hope to continue the ordinance refinement process again on Tuesday (7/11/00).
As the information begins to take on a manageable form, I hope we will be able to translate it into a workable ordinance.

• Many of the ideas mentioned for earning extra impervious area are good, but how can we quantify what they are worth and still keep SBO simple enough to understand and administer? Assessments will have to be done on a lot-by lot basis.

• What role could offsite mitigation have in considering additional impervious area?
Good concept and it works, reduces things to $ amounts. Order of preference is: onsite; adjacent; in same watershed; in another watershed. Typical engineered solution.

• Question whether SBO and modifications will work in long term? Realize some options are needed for relief, but concerned that incremental,’venial’ allowances in watershed will result in same thing that happened in Seattle, when everyone was granted a small variance. Must definitively limit growth impacts now to avoid a similar problem here in the future. Big difference between a variance, which allows a minimum regulatory relief, and an incentive, which can do a lot more to actually reduce impact potential. People’s desires are a great motivation, but need guidelines. Example: Would granting an additional 200 SF impervious area be a good trade in return for vegetating 2000 SF? Would need to ensure this was perpetuated. Concept is to not make it too easy, but allow some flexibility if this results in public good being done. Guidelines and criteria are required to define limits of this. Our most common activity is issuing permits for small improvements to existing property. An incentive system could tap into this bigger ‘market’ too.

• KISS principle restated; what would work with builders and developers? Some are already doing this type of careful design and planning, would appreciate receiving credit for it. COB already has a menu of alternatives in its regulations, which aren’t being used frequently, in favor of standard designs and simplicity. Some developers practice lake-friendly designs because that’s the easiest way to get a development to work on the site. (collecting stormwater & filtering it instead of installing swales, keeping native vegetation, dedicating land buffers, choosing to use fewer lots than maximum, etc.) Reality means reasonable accommodation is expected in applying rules. But, does it make sense to get credit for leaving native vegetation already in place? Changing conditions have themselves dictated the SBO changes, and that is the new reality. It’s not business as usual any more. It’s a new ballgame.

• COB’s anticipated SSWU upgrade and levy will serve to include existing owners in solving existing runoff pollution problem.

• COB’s existing road standard requirements may not be appropriate for SB and the watershed, because of excessive impervious area, and may need revision. Two examples:
• An undeveloped lot, restricted to 2000 SF impervious area, will need to use pavers for its driveway, but also have a minimum standard street constructed for access to property, which far exceeds his own allowed impervious area.
• A small development of 6 homes on previously cleared land near Silver Beach Creek is currently required to have a minimum standard street constructed for access.
These examples exemplify potential overkill in use of existing road standards, particularly in the Lake Whatcom Watershed. They also illustrate situations in which an incentives program could thrive. Absent this, building will happen according to existing standards and the opportunity will be lost to achieve much more lake-friendly development. No tools yet exist to effectively address this type of problem. Code is rigid and will be interpreted that way. SBO could address this type of problem, if we wish it to. (i.e. minimum standard road width of 20’ might be reduced to 18’, if abutting lots are retained and 50% of existing native vegetation)

• CTF requests a menu of opportunities to revise COB codes in SB, based on checklist handout and ideas previously expressed. Also, a list of the 6 most counter-productive code requirements that currently apply. This information is to be distributed electronically prior to next meeting.

• Important to consider how SBO modifications will work administratively through COB’s system. Perhaps, Residential permits in SB can be treated similarly to Commercial permits to accommodate checklists and special incentives. Not seen as particularly onerous, won’t create a problem. Most ideas can be visually verified. CTF also requests “top 10” ideas which staff worthy of consideration. CTF is not familiar with Ordinances, language, etc, which trained professionals can provide more readily. Need draft Ordinance now. Good progress has been made.

• 30-second summary of Saunders Report:
Planning underestimated the actual impervious area in SB now. As a result, potential benefits of SBO were underestimated. (We can do more good than we thought)

5. FLIP CHART SUMMARY – Ideas identified for staff follow-up:
• Transfer of Impervious Area Credits (TICs)

• Lot consolidation

• Preservation of Native Vegetation*

• Restoration of Native Vegetation*

• Stormwater Management*

• Stormwater Utility Rate Adjustment

(* bonuses at highly beneficial ratios)

6. Assignments for next meeting:
• Agenda & Watershed Science Checklist will be distributed, preferably in electronic format, to allow study before the next meeting

• Staff to provide a draft outline for a TIC system, which can be incorporated into SBO, using elements shown in Flip Chart Summary, above.

• Staff to provide a list of “top 10” ideas worthy of consideration

• Staff is also requested to summarize ideas likely to have major positive impacts on protecting the watershed, but which require broader or different mechanisms to implement, such as a menu of opportunities to revise COB codes in SB, the 6 most counter-productive code requirements that currently apply, and the like.

• NEXT MEETING: Tuesday, July 25, 7-9pm in Mayor’s Board Room
Future Meeting Dates:
Tuesday, August 8 (Mayor’s Board Room)
Tuesday, August 15 (Mayor’s Board Room) (final recommendations deadline)