Council OKs critical areas ordinance

Published on Fri, Jul 31, 2009 by Tara Nelson

Read More News

After a long-standing debate over property rights and environmental protections, Blaine City Council approved a revised version of the critical areas ordinance (CAO) that increases protections for wetlands, as required under the state growth management act (GMA).

During their regular meeting Monday, council approved the ordinance 4-3 with Jason Overstreet, John Liebert and Scott Dodd voting no. Dodd, who is currently attending a training camp for U.S. Customs and Border Protection service, voted by phone.

The decision comes after a June 10 meeting in which residents and developers urged council members to ease restrictions imposed in the original ordinance and create a revised draft. Some, including Overstreet, said they supported disregarding the state’s mandate altogether. 

Washington state requires cities and counties to review their development regulations every seven years as part of the GMA. That includes the revision of critical areas regulations and the requirement that counties and cities use the best available science in developing policies to protect environmentally sensitive areas.

At Monday’s meeting Overstreet called the CAO “crazy economics” and introduced an amendment that would financially compensate property owners for forgone revenue as a result of the new regulations.

That amendment was defeated 4-2, with Liebert and Overstreet voting yes.

Council member Harry Robinson, who voted no on Overstreet's amendment, said he disagreed with Overstreet's idea to challenge the mandate at a state level.

“The U.S. Supreme Court has dealt with the takings agenda and they’ve consistently upheld that,” he said. “This issue has been dealt with for a long period of time, this question of taking agenda and justice Oliver Wendell Holmes made a good point when he said, ‘Government hardly could go on if, to some extent, values incident to property could not be diminished without paying for every such change in the general law.’

“In other words, the government has the right to have buffers and critical areas. If the city of Blaine attempted to pay for every area that was determined to be a critical area, it would bankrupt the city.”

Blaine community development director Terry Galvin said while drafting the revised ordinance city staff aimed to reduce regulatory constraints as much as possible while maintaining minimum standards enforced by the Washington State Department of Ecology (DOE).

That includes reduced wetland mitigation and increased flexibility for developers, he said.

“The buffers themselves haven’t changed, but staff has reduced the criteria for what constitutes a buffer zone,” he said.

But while some landowners may applaud the move, Galvin said there is still concern that the requirements won’t meet the state’s minimum for environmental protection.

Galvin said the DOE has sent a fourth letter to the city warning that key provisions within the CAO were inconsistent with the city’s shoreline master plan and that the current buffer requirements are not sufficient to protect wetlands.

In their most recent letter dated July 27 DOE officials said while they understand the need to balance environmental protections with pressures faced by small governments to increase the local tax base, they are disappointed their previous suggestions were disregarded.

The letter stated: “We are concerned because there are many important natural resources in Blaine, including Drayton Harbor, that are at risk of further degradation if the city does not take action to preserve or restore the wetland functions that protect these critical resources.”

Another letter from the DOE dated June 8 also read that the ordinance would allow too high of intensity land uses adjacent to wetlands, inadequate buffer widths and inadequate protection. In addition, the buffer reductions allowed would further the risk of degradation to the city’s remaining wetland resources.

“[The DOE] cannot support this high-risk approach as it is not consistent with the best available science.”
Others, such as Wendy Steffenson, of the environmental group RE Sources, said the numbers put forth in the original ordinance were already insufficient to protect the value and function of wetlands.

During their June meeting, Steffenson called the ordinance “alarming” and urged city officials to review their priorities. 

“It’s not easy to recreate what nature has made,” she said.

In a meeting last month, Blaine mayor Bonnie Onyon said she understood the concerns of property owners whose future development plans could be impacted by the new regulations but that failure to pass an ordinance will put Blaine in violation of state law.

“There is a misconception out there among some individuals that this is something the city thought up,” she said. “However, this is mandated by the growth management act. If we don’t have an ordinance, we will be subject to severe penalties by the state and potential lawsuits by environmental groups.”

Galvin agreed, saying the new revisions simply follow legal framework required by the state’s Growth Management Act and created more flexibility in an attempt to mitigate the impacts on property owners.
“I don’t think people realize that the city staff isn’t just making this up; these are regulatory mandates from the state and ones that other municipalities have adopted,” he said.

New, flexible regulations
The CAO increases the standard buffer for category two wetlands from 50 feet to between 75 and 150 feet and increases the buffer for category three wetlands from 25 feet to between 50 and 100 feet. Category four wetlands, which have not been regulated by the city of Blaine, will now be buffered from development by 25 feet.

The revised regulations include the following features:

• Non-conforming development creates a grandfather clause for developments built in critically sensitive areas to protect the landowner from future changes in development regulations.

• On-site density transfer allows landowners to concentrate construction in one area if another portion of their property is protected in order to preserve development potential.

• Exemptions for minor additions and remodels allows more exemptions for minor additions and remodels for homes in critical areas by up to 700 square feet.

• Revisions for buffer reductions allows greater flexibility including a provision that allows buffers to be reduced up to 60 percent in certain areas of category three and four wetlands if the average buffer area is met.