Silver Beach Ordinance Redux: 7th Meeting Citizens Task Force

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WARNING: The following information is LONG, boring to many, incomprehensible to others, and history that repeats itself!
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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
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Here is a Summary of the August 8, 2000 meeting:

I. Attendance: All present, except K. Barron, T. Bornemann, D. Cantrell, T. Farris

II. Handouts:

• Agenda:
1. Complete Codes & Ordinances Worksheet
2. Discuss ideas for adding flexibility to Seasonal Construction Limits
3. Discuss interpretations & definitions currently in the SB Ordinance, like what “perviousness”; how to calculate or credit semi-perviousness, and the like mean.
4. Discuss possible enforcement/corrective action for SBO non-compliance.
5. Wrap up & summarize list of potential recommendations for prioritizing at the next (last) meeting, on August 15.
• A (yes/no) Home Builder Check List from Snohomish County PUD, for a Built Green Volunteer Program

III. Summary of Ideas for Possible Application to SB Ordinance:

• List of “Top 10” Ideas worthy of consideration - in order of observed demonstrated prioritized impact:
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1. Clearing Land Destroys native vegetation

2. Loss of Buffers Streams, lake, steep slopes, wetlands

3. Grading Activities Disturbs soil

4. Compaction of Soil Heavy or repeated use

5. Imperviousness (from any cause)

6. Density/Intensity of Use (urbanized uses)

7. Transportation Facilities Urban > Rural

8. Sanitary Facilities & Failures Collective overflows of Sewers & Septic Systems

9. Use of Yard Chemicals Fertilizers, Pesticides, Herbicides

10. Maintenance Activities Paved surfaces, structures, yards
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• (Continued- from Codes and Ordinances Worksheet – in order of priority for SBO)

Note: Information between dotted lines below is repeated from last meeting’s discussion for continuity.
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11. Open Space Design
a. Are open space or cluster development designs allowed in the community?
b. Is land conservation or impervious cover reduction a major goal or objective of the open space design ordinance?
c. Are the submittal or review requirements for open space design greater than those for conventional
development?
d. Is open space or cluster design a by-right form of development?
e. Are flexible site design criteria available for developers that utilize open space or cluster design options (e.g., setbacks, road widths, lot sizes)

• Jumping next to open space elements; if we allowed cluster in some, but not all areas, would that result in less structural surface area? Is this where we talk about minimum lot size? Yes, when you talk about cluster, you have to talk about minimum lot size.

• I would suggest that for the purposes of this proposal, that we would establish a minimum lot size of 20,000 sq. ft.

• I would amend that to 13,333 SF.
Even a 20,000 cluster, or a 13,333 cluster, would be better than what we have now. There is some number, smaller than 20,000 that would be better than 20,000 as a minimum lot size. It depends on what the density of the cluster is as to what the impact of structural surfaces will be. So the question to the group is, do you support cluster development anywhere it can be created. [all AYES].

• What would be the impact if you set an overall density at 20,000 SF per unit with a cluster minimum lot size of 13,333 SF? And, would a cluster always be allowed? I am assuming by cluster, that it means that you are leaving larger areas open. [It does]
Basically, by doing that, you’re saying that there is the potential for “x” number of building permits in SB, overall.
Right, so you are only going to get “x” number of units. But, you can cluster your open space so you can get down to a lot as small as 13,333 SF. [That doesn’t quite go where I want it to] Another reason for requiring an average of 20,000 SF lots?

• Let’s go ahead and address the economic issues. But, before we address the numbers, let’s clarify we are addressing cluster vs. non-cluster. So, is there anyone who does not support clustering for any reason? (no objections) So, it seems like clustering is a doable pursuit, regardless of the density question.

• One parcel is not subject to the sewer regulations except for the seasonal limitations because it is zoned multi-residential and this applied at the time it was permitted. However, we can potentially achieve desired results, through using the SEPA environmental impact review. Cluster is not permitted in that zone. To create individual lots, on which you can have individual buildings, condominium ownership of land, and the like, that parcel still has the ability to create a low impact design. We don’t need fixes for Residential-Multi, because we have seen the last one of these in SB.

• On the size of the lots, if they are set at one half acre (20,000 SF) for a single family, this currently allows a 3000 SF footprint, per the SB Ordinance. The way it exists, to get a 2000 SF footprint, means you have to get to a 13,333 SF lot size. It seems like that number has been arbitrarily picked, and it’s the number we are considering to use. Why, because the overall objective is to reduce impacts on the watershed to acceptable levels. If you want to say to Whatcom County, “what is the minimum lot size that the city would set by example?”, it’s hard to justify less than 20,000 SF. OK, I am against this, but I’ll ask another question.

• Back to what is the percentage of the total watershed we are talking about here. What is the total? Are we talking about the last 2% of the whole area? We are talking about two different things. You are talking about the impact in the city, and he is talking about how this will be read by the county for application outside the city. We are dealing with the county? We are dealing with the most urbanized portion of the watershed, but we are concerned about the entire watershed. Two points apply, one is reducing the density for the sake of it, and the other is if your lot coverage of 15% is sound, then why not allow a 13,333 SF. lot, if it meets that objective. So, both are objectives. Reduced density also reduces impervious area. Even if you can’t reduce density, you can reduce impervious area. You attack on both fronts, weighing the priorities.

• You could take the 13,333 SF lot size, and model it after the county, but that would not necessarily be a good thing. That would require many more new roads, and a lot of the stuff we are talking about shows that is already a problem. There is a difference between zoning and setting the minimum lot size, of say 13,333 SF, which disallows anything under that size. You can make a different argument for property that is not yet platted, and roads that are not yet in existence, and say that in those instances, there ought to be different density limitations that ought to be “ x”, whatever that is. When you get to the question that the county has been struggling with on the TDR’s, we are in the different situation of being already designated as an urban area. If we are going to transfer development rights, we ought to base it on what could be if sewers were there. You might say fine, we will value the rights at the 13,333 sq. ft. level, so if you have an acre, you can build three lots, and if you want to transfer development rights, that means that you get to transfer a maximum of three. But, if you actually developed it, you could only build 2 homes, or none, or whatever. There is a whole range of possibilities between what you do on existing lots, as differentiated from unplatted, or sensitive areas. One of the limitations on the county right now is that sewer and water are not readily available. Thus, they have two tiered zoning. The main example is zoning which allows 3 per acre if services are provided, but only one per 5 acres if services are not available. All I’m saying is that there are no prospects of this group (or either council) that will move in the direction of intensifying or allowing more houses than the current zoning allows. All that we are discussing are minimums. You must have at least this much before you can build. That is consistent. So the question gets back to what do you want to see. Do you want to see 20,000 SF or do you want to see some other number? Or do you want to have a tiered system like the County? Maybe you’ll want to think about that for the next meeting. So arguments can be made for 13,333 SF, or 20,000 SF lot sizes, depending on what is meant, and both could be valid.

• Question, are you talking about the last 2% of the build-able lots? No, here is the way the numbers play out again. There are 500 left in the city, out of 1300 possible. There are 11,300 in the watershed as a whole, of which there are close to 6000 existing that are built. Thus, there is almost a two-fold increase possible in the whole watershed, including a 60% increase in the city. The 2% notion has to do with the area of the land within the city’s portion of the watershed, as compared to the watershed area as a whole. COB has 538 acres of uplands, out of a total of over 30,000 acres in the watershed. So 2% is the percentage of what we are going to end up with when the city has built out its portion of the watershed. And who gets punished? Another way to put it is that the most intense land uses are allowed around the two smallest basins. These controls are preferentially targeted to the urbanized areas. Maybe you do have a different problem statement in the other, less urbanized areas. The problem with the 2%, is that even though it is 2% of the area of the watershed, it represents much more than 2% of the problem. That’s because of the intensity of use. To me the 2% question is one of those fuzzy ways of confusing things. This is reality. You can’t get away from reality.

• Summarizing this discussion is it accurate to say that we agree on clustering? [all AYES].
When it comes to the actual minimum lot size, should it be somewhere between 13,333 SF and 20,000-sq. ft.? Are we somewhere in this range? This really needs more discussion. OK, next time we should finish this checklist, and then talk about minimum lot size.
[This list to be expanded at next meeting, 8/8/00]
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[Continuation of discussions begun during 7/25/00 meeting]

• Cluster development is allowed in some areas of Silver Beach Neighborhood, but not in the 20,000 SF zone on the east side of Basin #1. It is only allowed on the hill behind the Elementary School, where 10 acres are currently under development. In considering whether we should allow cluster development, let’s review the potential benefits. Larger, undisturbed open space tracts are attainable. Smaller build-able lots are produced, with a more efficient home to street ratio. Clustered homes tend to be more affordable.

• How many lots would might be affected by allowing cluster development? Probably about 20 to 25% of the vacant land, mostly on a short plat cluster basis. These are generally allowed administrative approval now. To accomplish this we would need to revise the Neighborhood Plan, zoning, subdivision ordinance, or possibly create an overlay in the Silver Beach Ordinance.

• What if more land became available, as through annexation? Zoning would need to set at that time. In Geneva UGA, larger parcels (1-5 acres) are available. This is less so in the Tweed Twenty and Brownsville areas.

• What effect would clustering have on imperviousness? Homes would be on smaller spaces, but larger, undisturbed open space areas offset this, as long as no density bonus is granted.

• What financial impact would clustering have? It might create less expensive homes, which also furthers the city’s goal of creating more diversity in housing.

• Would clusters add significantly more traffic? No, the intention is not to increase density, but to consolidate homes into more compact areas, which could shorten roads & driveways and cover less buildable lot area, using same coverage limits. This zoning provides for only single family homes, sold as fee simple property.

12. Setbacks and Frontages
a. Are irregular lot shapes (e.g., pie-shaped, flag lots) allowed in the community
b. What is the minimum requirement for front setbacks for a one half (*) acre residential lot?
c. What is the minimum requirement for rear setbacks for a one half (*) acre residential lot?
d. What is the minimum requirement for side setbacks for a one half (*) acre residential lot?
e. What is the minimum frontage distance for a one half (*) acre residential lot?

• COB’s convention is to have 50-foot setbacks from centerline of street ROW, (or 60’ if arterial) and 20 to 25-foot from property line. This insures longer driveways & more impervious surface. For cluster development, parking must be provided back from edge of sidewalk, instead of property line. This reduces setback from 20 to 25-feet to 15-feet and places the home closer to the street, leaving just enough room for parking, usually on smaller lots. This allows a bigger, more usable back yard or open space, potentially cutting down on impervious area. The group agreed to recommend following the work sheet guidelines regarding setbacks., although ratioing setbacks to lot size is not standard COB practice. Side setbacks are usually OK, because lots are sized as narrow as practical. In subdivisions these are 5 feet, which creates a rather useless space, except for storage, etc. A good practice is to use setbacks all on one side to create more usable open area per home. Side-yards generally have an insignificant impact on impervious area.

13. Sidewalks
a. What is the minimum sidewalk width allowed in the community?
b. Are sidewalks always required on both sides of residential streets?
c. Are sidewalks generally sloped so they drain to the front yard rather than the street?
d. Can alternate pedestrian networks be substituted for sidewalks (e.g., trails through common areas)?

• Often a tough topic for City Council, because sidewalk width provides safety, separation of people from cars. Best sidewalk is one that is set back from the street edge, using planting strips, etc. Older communities, and parts of COB have this feature. Design challenges, like ADA. (requires minimum width, depending on what is being accessed) COB standard is 5 feet. (maybe too large?) Must be concrete and load bearing, if next to street, so that a concrete truck can drive over it without damaging it. 4” thick slabs, over approved substrate – probably overbuilt in every way. May not have much latitude to go narrower; have seen as narrow as 32” in Longview, set back with planter strips. Many are 3 to 4-feet in older parts of COB. When set back, these can be narrower, because separation from street is provided. Open ditches are predominant in Silver Beach, except for newer streets and arterials. Public safety, construction costs, impervious area and aesthetic appeal all have to be weighed in determining what type of sidewalks are required. Safety is largest issue.

• Why can’t sidewalks be made of alternate materials besides concrete? Possible to do this, and if set back with infiltration strip, could put pavers over permeable substrate. Widths, adjacency to roads, whether 2 sides or I, are the main questions in SB. Not many sidewalks currently exist in SB, although Northshore Drive, (at, and east of Britton Road) is traveled heavily and is potentially dangerous to pedestrians. This street is 20-feet wide, has a 6-inch curb and a narrow sidewalk on one side. (which is discontinuous in places) If you ask residents, they are scared to walk to the neighborhood market or beach. Kids are at risk from cars on one side and a ditch on the other. Traffic has increased over time and frequent speeding is seen daily, particularly when vehicles approach from the south. Sharp corners slow cars down. Speed limit seems like 52 MPH, not 25 MPH! (dyslexia?) Sometimes, one must be ‘creative’ to stop traffic, before you can cross street. Speed bumps? PW input? If development takes place, would it be near busy roads, or up-hill? Need minimum safety standards, whatever that means, but it doesn’t make sense to have sidewalks on both sides in every case. Longer-term retrofits could consider safe school routes, arterials, etc for sidewalks. The group agrees safety is paramount, but COB must minimize imperviousness to achieve the best balance. Construction material should also be optional, but practices need changing to make this happen. Must balance safety, durability, adjacency and imperviousness. Alternate, more pervious materials are OK, but have higher initial cost; over time this extra cost might be justified due to increased lake-friendliness. Need to consider some flexibility in both standards and materials used.

14. Driveways
a. What is the minimum driveway width specified in the community?
b. Can pervious materials be used for single family home driveways (e.g., grass, gravel, porous pavers, etc)?
c. Can a "two track" design be used at single family driveways?
d. Are shared driveways permitted in residential developments?

• COB has no minimum width, or paving requirement for driveways, (except for where an apron where it abuts anything but a minimum standard street) but they should not exceed a 15% grade in steepness.

15. Open Space Management (skipped)
a. Does the community have enforceable requirements to establish associations that can effectively manage open space?
b. Are open space areas required to be consolidated into larger units?
c. Does a minimum percentage of open space have to be managed in a natural condition?
d. Are allowable and unallowable uses for open space in residential developments defined?
e. Can open space be managed by a third party using land trusts or conservation easements?

16. Rooftop Runoff
a. Can rooftop runoff be discharged to yard areas?
b. Do current grading or drainage requirements allow for temporary ponding of stormwater on front yards or rooftops?

• This runoff can be discharged, untreated, except for sub-divisions, where it must be a part of the stormwater detention system requirements. So, the answer to question a) depends on situation; yes, for new single family homes on individual lots; no, for new sub-division developments. The answer is yes for the majority of SB homes. Infiltration/septic systems are OK, if soil is satisfactory, or a system can be engineered to mimic the right conditions. Under these circumstances, this treatment achieves best the ultimate objective of getting water back into the ground, and performing the functions of slowing down runoff, treating it and recharging it. COB’s Stormwater Ordinance is now undergoing a belated upgrade to meet State standards, with which it must comply by 2002. These are extensive requirements, and will help what the SB Ordinance seeks to achieve, although it might not allow a full range of innovative designs because of its prescriptive nature. The updated SW Ordinance will be an improvement, but not perfect.

17. Buffer Systems
a. Is there a stream buffer ordinance in the community?
b. If so, what is the minimum buffer width?
c. Is expansion of the buffer to include freshwater wetlands, steep slopes or the 100-year floodplain required?

• COB has wetland and stream ordinances, requiring setbacks. Additionally, the Shorelines Master Program will be upgraded this Fall, with public process. Currently, waterfront setbacks are 25 feet for structures, but this could be increased to 35 feet. The Streams Ordinance sets maximum buffer width at 50 feet, which is inadequate. In Silver Beach there are only 2 streams, Silver Beach Creek and “Cutthroat” Creek, near Northshore and Donald Ave; both are mostly built-out adjacent. The Wetlands Ordinance specifies buffers of up to 100 feet, which is OK. Exception is Shorelines, in which the State allows local entities to set buffer widths. Whatcom County specifies 40 to 75 feet, which goes further in preserving the critical functions of this last catchment area in minimizing impacts to the water body, maintaining public access to the water and retaining the opportunity for shore-side land management. COB’s limits were set in 1974 and amended in 1989. Knowing what we know now, these limits should be 50 to 100 feet, for non-salmon bearing systems and 100+ feet for salmon bearing streams, measured from each stream bank. Buffers are a big issue, and minimums of 50 feet for small streams and 100 feet for salmon bearing systems are recommended. Hard to change much because of existing development and roads, but new homes should be encouraged to maintain at least a 50-foot buffer or provide off-setting mitigation. This affects remodels and reconstruction projects more than new homes, because of yards, boat ramps, patios, etc. Since shorelines are critical areas, buffers need to have undisturbed, vegetated soil immediately adjacent to the water. We can’t change existing structures, but we can influence new ones.

18. Buffer Maintenance (skipped)
a. Does the stream buffer ordinance specify that at least part of the stream buffer be maintained with native vegetation?
b. Does the stream buffer ordinance outline allowable uses?
c. Does the ordinance specify enforcement and education mechanisms?

19. Clearing and Grading
a. Is there any ordinance that requires or encourages the preservation of natural vegetation at residential
development sites?
b. Do reserve septic field areas need to be cleared of trees at the time of development?

• COB has these ordinances and they do work OK to encourage good practices and maintain vegetative cover.

20. Tree Conservation
a. If forests or specimen trees are present at residential development sites, does some of the stand have to be preserved?
b. Are the limits of disturbance shown on construction plans adequate for preventing clearing of natural vegetative cover during construction?

• COB does not have a specific Tree Conservation ordinance that applies to single family homes. This group has previously stated that landscaping standards are needed, without specifying whether this should be mandatory or a flexible incentive. Tree conservation does happen as part of easement negotiations, but usually not down to the level of individual trees. Hazard trees are exempted. Sudden Valley has a requirement for native vegetation management per a site plan, architectural review, etc. Objective is to keep native vegetation where possible, or restore it where we can.

21. Land Conservation Incentives
a. Are there any incentives to developers or landowners to conserve non-regulated land (open space design, density bonuses, stormwater credits or lower property tax rates)?
b. Is flexibility to meet regulatory or conservation restrictions (density compensation, buffer averaging, transferable development rights, off-site mitigation) offered to developers?

• This is an area where COB has no meaningful programs, except for open space negotiations in cluster developments. There are no incentives for land conservation, other than the good will of citizens. No tax breaks, no stormwater rates breaks, no utility breaks, no nothing. How can we get people to do the right thing without them receiving some tangible benefit in return? One idea suggested is to require a one-time education on good practices, as part of the permit process. Despite the fact that no incentive program exists, all the ingredients are present to enable this happening, and it could be done. We should encourage this to happen. What about an up-front cash payment, in consideration of an agreed-to practice? Care needs to given in how this type of incentive is awarded, and from what funding source. This may also be part of the focus of the Lake Whatcom Reservoir Management Program’s Citizen’s Land Acquisition Board, which is now studying this subject. All recommendations are welcome, and none will go away if they aren’t used as part of this group’s recommendations. There are some good existing examples, like the State Fish & Wildlife Dept.’s grants for conservation easements, and the Soil Conservation Service’s land-banking program, where farmers are paid to keep unneeded land out of production. Also, it might be possible to use a TDR program to legally transfer the partial ‘rights’ pertaining to retention of hydrologic or vegetative character of property in return for payment. So far, we’ve never gotten to the point where an actual dollar value has been attached to these functions. Tax people traditionally take a dim view, but COB may have an opportunity to use utility rates creatively to encourage lake-friendly behavior in this manner.

22. Stormwater Out-falls
a. Is stormwater required to be treated for quality before it is discharged?
b. Are there effective design criteria for stormwater best management practices (BMPs)?
c. Can stormwater be directly discharged into a jurisdictional wetland without pretreatment?
d. Does a floodplain management ordinance that restricts or prohibits development within the 100 year
floodplain exist?

• COB has these ordinances, which require retention and treatment. These are currently being upgraded to meet State standards.

IV. Discussion of Ideas for Adding Flexibility to Seasonal Construction Limits

• Builders would prefer to keep the 5-month construction season allowed for 2000, and not decrease this to the 4 months prescribed for next year. This would require that adequate BMPs would be used. This extra time for the building season is needed; if it rains construction will be delayed anyway; if not, it’s a shame to waste good weather. Should the month of May be added, or the month of October? May is preferred by builders, but science says October is better, if another month is to be added at all. Local area rainfall profile shows distinct, variable effects throughout the year. For example, high rainfall is generally expected in October & November; but surplus moisture is already present in the soil in the springtime, too. It’s a mixed trade-off. Phosphorus (nutrients) loads are heaviest during the spring and growing seasons. The lake is dammed at a full level in late March, and generally maintains this level through April and May before the level drops. Therefore, nutrient loads dumped into the lake in May, tend to stay there. Nutrient loads dumped in September may remain until Thanksgiving when these get purged during the rainy season. Builders may prefer adding time early in season, but hydrologists would prefer later; when the growing season is over, temperatures are cooling, the wet season begins and a big water flow will be coming soon.

• Would a variable construction season work? Flexibility seems good, it’s impractical, because events must be scheduled and customer’s needs can stack up. The 4 months selected, June, July, August and September are unquestionably the best time for building. How about adding two weeks at both beginning and end of the season, from May 15 to October 15? Normally, permitting is done during the winter, but continues through February, March & April. By May, projects are starting. If pre-planning is not done by then, a short construction season can really hurt. How many lots are likely involved? Experience this year has been very busy; people have to plan ahead, but COB must better facilitate permits in the watershed, too. Some COB functions aren’t currently concerned with SB’s particular needs yet. Should we recommend fairness in accommodating the special SB problems? Is issuing a permit on September 15, too late? Should additional precautions be taken? COB’s Stormwater Ordinance now requires covering or re-vegetating exposed soil within 7 days in dry weather, or 3 days in wet weather, but is this being enforced? Water will continue to move through the soil, whether precautions are taken or not; thus the seasonal limits work well. If additional time is required, add it at the end of season, not at the beginning, so runoff can be purged. Will work be completed by October 1? Oct 15? If we write in BMPs, like hydro seeding, then we may not have to extend season beyond 4 months. Group can consider 2 or 3 options. COB must be required to do a better job of facilitating and coordinating permits for Silver Beach, recognizing the more severe restrictions in the SBO.

• Construction BMPs, like opening trenches, forming & pouring the foundations, then closing the hole and immediately covering it by sod-ding, seeding or chipping should be encouraged. This is not always possible, since this soil is often saved for in landscaping after the project is built. There is an exemption thresh-hold in SBO, of 500 SF of earthwork per year. Perhaps, can consider some latitude in this exemption for remodels, particularly if an incentive like reducing overall impervious area is agreed to. Perhaps a credit of 750 SF, extension of construction window, etc. could be granted. Helps to have an incentive actually do the right thing, if feasible. For example, this conference room is about 20’ by 30’, or 600 SF. This compares to the 500 SF exemption, which was selected to discourage additional outbuildings. Remodels may not involve very much new exposed soil to accomplish them. Although there are quite a few room additions, most earth-moving impacts come from new home construction and its associated mass grading for foundations and landscaping. Most remodels already have established vegetative cover, which may not be extensively affected. All known data shows that land clearing is the single, most critical activity. We should listen to science and not compromise important things. If 5 months is needed, then add October, not May. Protection trumps convenience.

• Inconvenience doesn’t prevent completing the job, just doing the earthwork. Usual practice is to dig first and cover last, because construction work needs to be done before landscaping. Can use sawdust or wood chips as alternate cover; they are effective, but this requires changes in thinking and adapting to new rules. The seasonal rules were set because they were simple to understand and enforce, and more effective too. As an example, the County schedules site visits from its erosion control staff year-round, as a daily activity. There is no demand for this in COB during winter; one person can watch all remodels & site closures cost effectively.

• Summarizing our options, we can consider adding to the construction season, front and/or back; keeping it at 4 months; requiring BMPs, cover and inspection (extra burden); consider flexibility in the 500 SF exemption for remodels. All of these are possible, but some may require more COB labor, in the form of site visits, etc.

V. Discussion of Interpretations & Definitions Currently in the SB Ordinance

• What is meant by "perviousness"? How do you calculate or give credit for semi-perviousness? What do other interpretative elements mean? Part of the advantage of doing things the way we have is that we can run with it for a few months, see what questions come up, and then refine the language to fit. (Refer to the illustrations of typical structural configurations, below)

Illustrative Sketches, depicting:
A. House with Overhang & Elevated Breezeway
B. Slatted Deck
C. Tree
D. Raised House on Augured Foundations
E. Porous Paving Blocks
F. Gravel Driveway
G. Driveway Tracks

• So the first question is, if your home footprint is like (A), how much structural overhang should be allowed, and should this be considered impervious? We know our primary functional objective is to maintain the hydrology of runoff water and its infiltration into the ground. Related to this is the vegetated coverage under some width of the overhang. Rain can go sideways, so some overhung ground can still get wet. If we lack this definition and specificity in the ordinance, then we must find alternative designs that meet the intent. One way of defining this is by using a ratio, like a slope, as up two units and out one unit. That’s easy to decipher and scale.

• Or, maybe you have an elevated building on pilings or augured footings, like (D). You could specify that the footprint-shadowed area can’t exceed a certain number of feet from the edge, say 4, 6 or 8 feet, and still be called pervious. Huts on sticks in the tropics still allow rain to go through to the ground, which supports vegetation, except for trees. Ground under overhangs, breezeways (A), or a slatted deck (B) may do this too, so allowing this could add some flexibility, like considering the ground under a tree (C).

• An absolute footprint limit might be set, with some fudge factor to allow some overhang or an elevated component, but with side widths that can’t exceed, say, 15% of the direct footprint, 4 feet of overhang, a 2 to 1 ratio, or something similar. Creative design and innovation should be encouraged to meet the intent of SBO.

• There are varying degrees of infiltration or perviousness, depending upon the material covering the ground. Class A soils are the most pervious, but this starts declining as the Class of soil letters go down the alphabet, until eventually you get tight, impervious clay soil, itself as hard as a paved driveway. At this point, little can be done to improve perviousness by substituting other materials, like alternative pavers, key lock, grids, matrixes of earth materials, etc. (E) In this instance, how much of those materials could a lot developer use? 100% of lot coverage? The argument can become self-defeating in these situations.

• In the County’s UR-3 zone, you can cover up to 50% of the lot with outright impervious material, but then the remaining use of pervious pavers may not exceed a total of 70% of the lot coverage. Does this add any positive functionality? How much ground covering can you have with these alternative systems that, in essence, displace vegetation but still allow infiltration? This is an example of what can be a meaningless exercise.

• If vegetation is displaced by a rooftop, and all this runoff drains into the storm water system, would it be better to have a good rainfall catchment system, that infiltrates this water back into the ground? Maybe, unless soils were clay, which would mean you would probably need to engineer a system.

• If I do my whole yard in pavers, is that okay? Does that meet the objective? Is there much difference between a percentage of ground covering that needs to be kept in vegetation, or just mixed with vegetation? If there is some gain in having a minimum mix of pavers and vegetation, then we can set that as a limit, and that becomes the goal.

• Pervious paver systems aren’t as functionally effective as natural vegetation. At Western, for example they play with their pavers all the time and what happens is the whole Fairhaven dorm complex drains into this wetland, and it gets totally filled with sediment because sand is used as the medium under the pavers. We are talking about 100’s of pounds of sand — a caution about using pavers like this because they are sand based and limited in their capacity. What about the ratio of pavers to vegetation discussed when the ordinance was first passed? Also recall the issue of strip driveways (G). If you have 2 feet of concrete separated by 3 feet of grass, is that zero percent impervious coverage? When concrete is how wide, will water still saturate underneath it? At some width of impervious cover, there is an inverted, dry pyramid underneath, especially if there’s not enough vegetation interspersed. So, a black and white impervious definition doesn’t always work, because there can be design alternatives that do a reasonably better job. When first developing the SBO, we considered lot size; an impervious/pervious ratio objective; a minimum guarantee for building on small lots; and some limitation on impervious area. Also, there is a vegetation requirement. The in-between scenarios are too hard to define, so instead we could have X% of the lot retained in vegetation, and everyone knows what that is. You don’t need to figure out infiltration rates or efficiency or anything like that. We’ve gone that way with our landscape ideas, but we don’t want situations where someone says, I don’t like vegetation, I want pavers in my whole yard. The ordinance will allow that right now. Do we want some native vegetation as a preference or, any vegetation at all as a second choice? We can’t really say an 18-inch wide tire track of cement (G) is a significantly measurable impact. So, with these parameters you can’t get exact clarity, or interpretations that fit in every case; that’s just the way it is -imperfect.

• For guidance on pervious/impervious definitions, if we’re going to have 15 or 20% maximum cover on lots, and pavers or some other alternative, don’t count as much as vegetation, then we should put some limits on it - a serious percentage limit. We talked before about the degrees of perviousness; the three categories, pervious, impervious and partially pervious. The question is, how do you define “partially pervious”. Are you going to set that at 15%, 25% or 50%? There should be a limit on it, otherwise you’ve lost the opportunity to maintain some better infiltration system and water absorption into the ground.

• Try to think of this in terms of a code system with a variety of personal preference outcomes. The extreme case is not likely to repeat itself frequently, so should we worry about it? There are as many people who like trees and vegetation as not, for whatever the reasons, so maybe the frequency of occurrence isn’t a significant management concern. At least, that’s what we used to think until we had some extreme, massive homes built in certain places in Bellingham. All it takes is one really bad example to irritate people, so we need something we can put in there as an initial limit, with extra bonus potential to be earned. You can say your impervious limit is this and then for every square foot, or ratio of native vegetation, or vegetated area you provide the scale slides up a bit.
Or we can think of these as longer-term measures, as an option.

• We were talking about a list of things that you might use as a one-time, mandatory education for a person applying for a permit. If the landowner would agree to using these principals or practices to management their property, that earns them credit to get further impervious area, etc. And they start off with a lower percentage, then jump some hoops to get up to the regular limits. We also talked about having an education component in the permit to get that little initial bump up in impervious area; so you would have to take a class about good watershed practices to get this.

• We can actually monitor impervious area, visually with aerial photos. This technique allows a plan view looking down, and by this method you can easily ascertain lot coverage compliance. The City commissions a fly-over about every 10 years. We did a current watershed fly-over when the ordinance went into effect to set the baseline. You can dial up a spot image satellite photo on your computer and manipulate its scale and convert it’s pixels to obtain the coverage type. If there is any doubt, you can always go visit the site. The Department of Natural Resources takes aerial photos every few years to survey trees. The Army Corps of Engineers takes them every year, and these are not hard to access. They are used for scientific purposes, and this is the way they monitor wetlands, dams and levees, etc

• In the Silver Beach neighborhood, the soils are mostly clay. So, no matter what you use as landscaping, it might be equal to or better than clay. You do get rapid re-vegetation of cover, except for mature trees, as some of our construction photos showed. When people landscape their yards, they generally amend the soil and this material accumulates over time to make it more pervious. We could either require some vegetative elements or make them optional. This could be monitored reasonably well with aerial photos, at a minimum and site inspection if necessary. Most of the time, when something runs amuck, meaning a violation, people are on the phone before you even have a chance to get to the photo. There are many people out there who are ready to report on their neighbors activities, whether their motivation is environmentally oriented or not!

• Driveway tracks with grass in-between (G), aren’t very impervious. Retainer walls made of stacked blocks are, in theory, impervious cover. Practicality says otherwise, though. There will always be judgment calls and we can’t describe every detail.
The discussions on perviousness come down to the fact that it doesn’t necessarily make any difference if part of the ground is in shadow. If you look under a tree, that’s under shadow, but it hasn’t lost its potentiality for slowing down runoff or infiltrating it. (C)

Similarly, if you have a slatted wooden deck (B), it depends on what’s on it, or under it, in determining it’s imperviousness. If you leave it vegetated underneath with weeds or moss or something then it is probably mostly pervious. On elevated decks, we have another aspect of our code that says, if its open to the ground and water will infiltrate, its not considered a structure. But it can’t be over 30 inches high or something like that. And the same thing would be true of a foundation under a house built on stilts. (D) Just the fact that it’s in shade most of the day is not the key. You could grow ivy or something under there, which adds some functionality, and that would probably count. Looking at the drawing, if you have, say 2 vertical units for every 1 horizontal unit, and your maximum shade is out 4 feet, that’s probably OK. I’ve never seen a roof overhang more than that, or a sidewall overhang. On a breezeway (A), if you want to connect those buildings, and it’s 8 feet wide, it would have to be 16 feet in the air wouldn’t it? Is that possible or practical? (In the wintertime, it would be. You’ve been up north too long!) That goes back to the storm water runoff issue and I am not sure what those requirements are going to be with this new upgrade. But, if we have some kind of a closed system that has some kind of infiltration device, septic system or whatever, then can that act as a alternate BMP?. Is there going to be something like that for storm water? We don’t know yet, but they’ll have the same idea in mind.

• Is there a known hierarchy of pavers as far as their effectiveness? In reading the literature, it says that 75% of them have a failure within 5 years. No. What appears to be the most important performance element is how you bed them. And sand is not good, angular rock is the preference. When you use pavers, vendors will tell you must lay them in sand and that’s the only way that they’re going to guarantee them. What we know is how we’ve done our sidewalks, our concrete works, our panels; and what holds up and avoids these from shifting. So, I know there’s some big restrictions on that too, like slope and service water. How about rocks with landscaping on them? SPIE has grass growing on the hill and they did the whole parking lot like that. That was nice. There are a variety of strategies, whether they are masonry grids or mixed media, where you can layer earth materials; they all have their strengths and weaknesses. Driving around in the Queen Anne Neighborhood this weekend, among very, very, very expensive houses, I saw two driveways in one block that had converted their driveways from concrete to pervious paver systems.

VI. Discussion of Possible Enforcement or Corrective Actions for SBO Non-compliance.

• Let’s move on to possible enforcement or corrective actions. We have the first correction case for SBO, but it hasn’t gone to enforcement yet. There is about 500 square feet of solid concrete driveway laid down on a gentle slope for a new home. This property is all ready well over the coverage limits; and as we introduced ourselves from the City, the person who did the pouring, gave a predictable response, I didn’t know, I had no idea, I had no clue. Then came three chapters of qualifying why they have got to have it that way. Nevertheless, we have to carry out the ordinance and correct it. We’ve already described the ordinance, it’s purpose, the process by which it was adopted, and we’ve let these folks know that what they need to do is either make up for the 500 square feet or remove the 500 square feet of driveway, front and back. We’ve even gone so far as to provide some technical remedies that might work subject to, you know, the practicality test. Such as: concrete blocks, separated by 2-inch wide slits in the driveway, and putting structural spacers at the end and in the middle, so they don’t move or shift or compress. Back-filling with angular rock to an inch below the concrete surface so it doesn’t tractor out and flip and skip. And then, see if this sub-grade layer is sufficient to infiltrate water. Most people who will spend for concrete, will at least have some degree of Class B rock underneath; it won’t usually be on native earth, although if they know they cheap route, they might do that.

• After 10 days now of working this situation, the owner is now willing to accept fixing the problem, because they know they must seek a solution and are not resisting further. They have now educated themselves about materials that are available, potential strategies and they’ve also posed the question: Well can I mitigate for this since it’s—you know I wouldn’t have done it if I knew but I did and so here we are?

• So, my question to the group has to do with the range of corrective actions, not wanting to encourage someone to purposely break the law and then get the softer correction action, which you know, I suppose is possible. Maybe a watershed ordinance response is different than an illegal dwelling response or some other more severe police-like actions, like running an auto body shop out of your garage, that kind of thing. I always try to think of what is the impact going to be to the individual, or the household, or the business, as the case may be. What’s fair and still achieves the community’s purpose?

• So, here are three or four questions: Do you enforce SBO to the letter of the law in every case? Or, enforce to the intent of the law if you can find another mitigation that meets the intent? How does the group feel about that? Do you pursue it in hardball fashion, which is to say here’s what you’ve got to do, here’s when you got to do it by, and if you don’t here’s what we’re going to do? Or, do you allow some kind of (we could consider building something into the ordinance for this purpose) some off-site mitigation? “Oh gee, I paved my driveway, now I’ve got to go buy impervious credits from someone who has a 1-acre lot”. Things like that. So, concrete being what it is, is not a friendly material. When it’s poured, its very hard, very set, very difficult to move or handle. There are lots of ways to do mitigation, but it still leaves you with the question of “If you know, and you still break the law, - knowingly or otherwise - will there be an alternative remedy that can ultimately let you have what you want?” Is that where we go? Does the ordinance have any teeth in it on at that point? Or does it undermine the whole intent and defeat the purpose of SBO? These are the questions I’m posing, and this is not the same problem as an illegal dwelling or something else that’s just plain illegal. This is for watershed protection, arguably a public safety issue. Not all situations can be remediated; like cut trees can’t be put back up 80 feet tall.

• Another, similar situation happened, requiring a quarter of a million dollars to fix. It involved several individuals on both sides, which changed from time to time. The government employees were making judgments based on intent and the people were posing question based on the letter of the law, and then roles got reversed, making it a comedy of errors. The he-said, you-said game just builds on itself, so there’s got to be a pretty good definition of what consequences are prescribed for not meeting requirements. This might be a case where you could take it to a citizen’s advisory group to determine appropriate remedial action, then go through an appeal process, as necessary. This could take the City’s staff out of the picture, at least partially
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• There needs to be a sufficient disincentive on such matters. Maybe make a quasi-judicial ruling on what the findings should be.
All the city has is an enforcement and penalty section. But it’s not all black and white. In the food chain of regulatory hierarchy, the purpose and intent is at the top, but you can’t escape some literal descriptors. The way to go about it is always try to make it clear what we’re trying to accomplish, the range of alternatives available to do that, and respond favorably to people who make a good faith effort and deal very strongly and effectively with those who don’t. What if you were something like a few square feet over the limit, you know, by 2 or 3 square feet? You make it a good incentive and chance that sort of thing. Wouldn’t that set a precedent? If what you are trying to do is protect the lake by this mechanism, do you let somebody buy their way around it? Maybe, but just make sure that the mitigation exceeds the sin. If the development right that they are buying is taking that out of the potential future development, then you may have accomplished the goal, and they have been penalized. As long as they are buying out future development of the watershed area, it’s probably OK.
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• I disagree with that because we’re talking about an impervious limit that they were supposed to meet. If they are going over the limit, we’re not really being fair to the rest of the watershed community, because the right that they are buying is already not impervious. See what I mean? And chances are that someone else will buy it. It may have also been preserved by another means. It may have been - I’m just concerned that somebody will go, “oh I’m going to put in my driveway”, and do it, and then others will follow this example and defeat the purpose of the SBO. That’s the fair and equitable way; the same rule for everyone. The reason why we’re discussing this situation to find examples, where there are some circumstances that can’t fully be mitigated or fixed.

• You have so do something different as a disincentive, but still allow achieving the purpose; and from the City’s side of the fence there is also the amount of time you must pour into this problem/resolution activity. What seems to work is to go for the worst offenders first and make poster examples out of them. Then, that effort, which is usually hard rock money, prevents many more similar situations. You can afford to pour an inordinate amount of time on a situation, if it makes a good example to use later. I think that’s where we are with this one.

• I did something to my mom’s driveway. She didn’t want a driveway; all she wanted was just a jumbled garden. So, I jack hammered it and I left it in place and I covered it with plantings. Now, that’s not a bad idea. I covered it with a 6 inches of pine needle mulch and put wild flowers on top. You would never know there had been a driveway underneath it. This probably works.

• Let me ask you a question on the particular case we’re discussing. Was the owner aware of the ordinance when the building permit was issued? He says no. Well how does this happen? How it happens is, you don’t need a building permit for a driveway. The information came to our attention from neighbors. Did he pour it or did a contractor pour it? Two contractors came and looked at and said they wouldn’t do it. Undisclosed reason. One from Seattle did it. They will all be talking about it, if you make him cut it all up like that. The neighbors are going to talk also. At any open lot they are going to say you better not do what this guy did. This may be example time! My inclination is to say, okay on a driveway, that’s not as bad as cutting a tree, which is hard to stand back up. I’m thinking we need to mean what we say here! They must know that we will do what we can to prevent this happening again. But there will be situations where you can’t put back what was there, and there need to be some alternatives for this contingency also. So, this ordinance should have some means - like that idea of coming to the advisory group, or Board of Adjustment, or Council within a certain amount of time – to figure out what alternatives should be required. That’s kind of an interesting way of doing things because its like a peer review, your own social peers are telling you what you’ve got to do to comply. That’s not a bad idea, but I don’t know how it would work administratively. You’ve got to consider who the peers are, too; they might be people who want to do the same thing, so it has to be set up right. I don’t know how advisory boards are established, but such a group would stay there a while, they would have their duration of service. Actually, I could see this group as the advisory board; we’re acting as that right now to give recommendations for fairness and flexibility. If we can build something into the ordinance, this group could address matters requiring scientific evaluation, and maybe propose this to the Council, should the group decide to recommend this.
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• If the owner disagrees with a suggested enforcement action, they can always appeal. There’s also the variance process, but none of our variance processes would deal with this situation, because there is no hardship in this circumstance, and its not even close. An appeal usually applies to administrative decisions, or enforcement actions, which, ultimately, usually play out in court. It would be much better to have a judge rule, than have staff dealing with it. Any way you go, it’s going to cost money after the mistake has been made.
The first three responses in these situations are always denial, anger, and then negotiation, in that order. “How about if I hook my roof drains up to the storm water system?: The builder should have done this, because that’s a requirement. Then, they become more inclined to restore it to the preexisting condition, wherever feasible. He could put in pavers, or do all that other stuff that builders are doing. Maybe we should build in some specific language into the ordinance that applies to driveways — they all shall go through a permit process, or something like an inspection. It’s going to be necessary. I mean that’s absolutely going to be necessary. Let’s get it in there!

• Well, it’s just as a matter of fact that there still is no limit on what you build for your driveway segment, within the right-of-way. That is not charged against the parcel. So, if you have a 20-foot wide road within a 60-foot wide right-of-way, then you’ve got more to pave. Well, that’s an interesting loophole, because that means there’s a lot of square footage of shoulder that could be paved that doesn’t count against the property being improved. That’s true. One step at a time here, is that in our domain? Yes, absolutely. That loophole needs to be closed. We’ve talked about the transportation element and facilities; we have some information in the minutes and a potential recommendation. This is a loophole in terms of intent, and there should be a practical solution or at least, a range of options developed. I think we ought to close this loophole, and we probably should take a firm position on this enforcement and corrective action procedure now.

VII. Wrap-up & Summary of Potential Recommendations and Assignments:

• It seems like we still have a lot of work left to do, and I am going to ask that we have another meeting after the 15th because I would really like to be there for the final prioritization of recommendations. Let’s discuss that for a minute. What we had in mind tonight was to finish the discussions to clean up the four agenda topics, so we can complete our list of recommendations. Then we’ll dump all of this on staff to come up with a list later this week, in time to distribute it via e-mail before next Tuesday’s meeting. This list will be compiled for use next week, so the group can focus on it and have a straw vote. Or, we can use whatever means we want to see which items we’re unanimous on, or near unanimous on, and which ones we’re on which we are split. What we are trying to do this time is, skim the cream off the top of the list, just as we’ve discussed. The rest of the recommendations or options are not going away. We just want to get those ideas identified that we can agree strongly on.

• The list to be considered next week, will be a menu of recommendations at the conceptual level, including some descriptors, and they will be grouped into similar, functional categories, such as seasonal construction limits, impervious area, uses, etc. The thought is that we will have the group vote, namelessly, to establish a priority weighted list of things we definitely want, and also things deemed potentially useful, but which require more work. Where two or more elements are similar, then we’ll choose the best of them, particularly where there is unanimous or virtually unanimous agreement in principle. We will try to come up with this list before the next meeting and get it out via e-mail.

• I still think we should have another meeting after next week. Let’s address that again. When we started this CTF, we said that eight meetings would be the duration of this assignment, and next week is the last one to which we all committed. That’s the time when we need to come to some preliminary decisions, but that’s not to say we couldn’t agree to have other meetings. In fact, there are many good reasons why we might like to have this group continue, in some form, to present information to the Council, help flesh out our recommendations, and let them hear the thinking behind them. We are shooting to meet the 8/15 deadline to finish the limited task we set out to do, and we need to meet that deadline if we can.

• All of you know that a proposal for land acquisition was recently introduced, which is now being considered. That was one of the big missing elements in the SBO, which this group identified early on. This proposed Watershed Land Acquisition Ordinance is to be the subject of a public hearing at the next Council meeting at 7 PM, on August 21st. When this gets passed for a third and final vote, we will have the funding for such a program, starting next year; or at the least steps will be in place leading up to that. We need to have the preliminary recommendations from this group, before that meeting if possible. We’d also encourage members of this group to show up at that meeting and say what you think is important. If you feel that buying property in Silver Beach and the nearby watershed is a priority, say so. Likewise, if you don’t think that’s a good idea, this a great time for you to talk about that too.

• Depending on what decisions are made, any number of things can happen that might affect this group. Assuming for the moment that the Council decides to go forward and pursue the ideas this group recommends, then it’s certain that the Council will be very interested in continuing to hear from this group. When the Council begins to seriously consider these ideas and getting the actual language written, that could be another opportunity to continue the dialogue with this group, whether we call that an official committee function or not. All these things have not been decided. There might also be an opportunity for those of you, having absorbed a valuable, condensed education (which is a big part of informed decision making - as we’ve all found out), and wishing to continue to be involved, to serve in some, advisory capacity to the Council. The next big job will be to actually flesh-out some of these recommendations; apply them to the SBO, or other programs; get the new language written; have public meetings for additional input; so that we can change the interim ordinance to a better, permanent version. Now that we have extended the Interim SBO, it won’t come due for mandatory renewal or change until January 24th, 2001. We’ll need to run any changes through the Planning Commission and City Council again, as part of the required public process, before they can be adopted.

• It has been very helpful for this group to participate so willingly and so well in these proceedings, and this has produced some very good results! Its even better that, with your education and interest, some of you would volunteer to become be a more permanent resource. The watershed management program should have an on-going, active, citizen participation, especially in developing technology, know-how about effective BMPs and living habits that help us to act in a different, more lake-friendly way. That needs to stay on the table for stakeholders to be involved with, so it would be nice to see the SB Ordinance have, written in it, some mechanism to allow for a citizen’s advisory committee.

• By next week, you’ll have your menu of choices, and with any luck at all, you’ll get through it and vote on it. Staff will then take those recommendations and start forming them into ordinance language, or strategy as the case may be. Then, we can put this back out to the group so you can see what your actual work product turns into, and allow you provide feedback on it; whether that will be through more meetings or electronically, is open for consideration at this point.

• This group has had a lot of dialogue during the past four months, but we haven’t taken any formal votes, tallies or head-counts yet. Since the group has changed a little from meeting to meeting because of attendance, we’ll discuss the survey next week to get a clear indication of the group’s preferences. This method has been tried several times before in public process forums, and it usually works pretty well. You will have a list of recommended choices, grouped by topic you can vote on. What will emerge from tallying these results is a ranking of priorities, some of which may likely be consensus choices.

VIII. NEXT MEETING: Tuesday, August 15, 7-9 PM in Mayor’s Board Room
• This is our last scheduled meeting and the deadline for our preliminary recommendations.
A Recommendations Survey will be sent to all CTF members by e-mail, for review and voting prior to this meeting. This will also be posted on COBWEB, along with this meeting summary. Even if you can’t attend the meeting, please try to e-mail your choices, by the groupings indicated, to John Watts in time for the meeting. Results will be tallied anonymously. Please also return an unsigned (unless you prefer otherwise) hard-copy to John Watts, either before or at the 8/15/00 meeting (or c/o the City Council Office) for record-keeping and final data processing.

• Many thanks to this group, which has worked very hard through the summer to meet its commitment to accomplishing its stated task. Your efforts to date are appreciated!