Ordinance 1294: Moratorium upon certain building permits within Boundaries of Water-Sewer District #5 BEFORE THE BOARD OF COUNTY COMMISSIONERS
OF LEWIS COUNTY, WASHINGTON
AN ORDINANCE OF LEWIS COUNTY, WASHINGTON ADOPTING )
A MORATORIUM UPON CERTAIN BUILDING PERMITS WITHIN ) ORDINANCE NO. 1294
THE BOUNDARIES OF WATER-SEWER DISTRICT#5 AND
DIRECTING THE SETTING OF A PUBLIC HEARING
WHEREAS, on July 9, 2004, Lewis County Water District No. 2 (District 2) entered into an
Interlocal Agreement for Provision of Wholesale Sewer Service to receive and treat wastewater
from Lewis County Water/Sewer District No. S (District 5), which was proposed to serve the
proposed Birchfield Fully Contained Community; and
WHEREAS, in February of 2017 the Birchfield Fully Contained Community proposal was
withdrawn; and
WHEREAS, District 2 considers the Interlocal Agreement "null and void because its
express and sole purpose was to govern the provision of inter-district sewer service for the
Birchfield FCC [Fully Contained Community]." In the opinion of District 2, this fundamental
change mandates a new interlocal agreement for any inter-district cooperation; and
WHEREAS, on July 24, 2018, the District 2 Commissioners adopted Resolution No. 7-24-
2018 stating District 2 will not accept new applications for sewer service from property owners
in District 5 without a new interlocal agreement between District 2 and District 5; and
WHEREAS, prior to submitting an application for a building permit, an applicant must
show that they have access to an adequate wastewater treatment system. The recent action by
District 2 calls the availability of sewer service in District 5 into question because District 2
challenges the legality of District 5's reliance on District 2's wastewater treatment plant; and
WHEREAS, moratoria adopted pursuant to the authority of RCW 36.70A.390 are methods
by which local governments may preserve the status quo so that new plans and regulations will
not be rendered moot by intervening development; and
WHEREAS, the County predicts the need for at least a six-month period to allow the
Districts adequate time to renegotiate and adopt a new interlocal agreement for sewer service
in District 5; and
WHEREAS, the County has legitimate concerns that sewer availability, as it relates to a
building permit application, cannot be property demonstrated through the commonly accepted
practice of a sewer availability form completed by District 5; and
WHEREAS, this Ordinance does not affect those properties within District 5 already
connected to the public sewer system. District 2 estimates this number to be approximately
seven properties; and
Moratorium PAGE 1 of 3
Ordinance 1294
WHEREAS, this Ordinance is in no way intended to limit the ability of property owners to
utilize septic systems to treat their wastewater; and
WHEREAS, this moratorium is authorized by RCW 36.70A.390 and Article 11, Section 11
of the Washington State Constitution.
NOW THEREFORE BE IT ORDAINED by the Lewis County Board of County Commissioners that
Lewis County Board of County Commissioners hereby declares the following:
Section 1. Moratorium.
a. The Lewis County Board of County Commissioners hereby declares a moratorium upon
the submission, acceptance, processing or approval of any land-use or building permit
applications for development of or on parcels within District 5 if the proposed
development relies on centralized wastewater (sewer) treatment from District 2.
b. The moratorium in section (a), above, does not apply to applications related to the
maintenance of existing uses on the seven or so properties, referenced in the recitals
above, which are already connected to sewer services.
c. The moratorium in section (a), above, does not apply to applications in which the
proposed development relies on on-site wastewater systems or other lawful wastewater
systems, such as a LOSS system. These applications may continue to be accepted and
may be reviewed as normal by Lewis County Environmental Services Division or by the
appropriate state agency.
Section 2. Duration of Moratorium. The moratorium adopted by this Ordinance is effective
immediately upon adoption and shall remain in effect for six (6) months, unless subsequently
extended by the Board pursuant to state law.
Section 3. Public Hearing. Pursuant to RCW 36.70A.390, a public hearing will be held August 27,
2018.
Section 4. Ratification. Any act consistent with the authority and prior to the effective date of
this Ordinance is hereby ratified and affirmed.
Section 5. Severability. The provisions of this Ordinance are declared separate and severable. If
any provision of this Ordinance or its application to any person or circumstances is held invalid,
the remainder of this Ordinance or application of the provision to other persons or circumstances
shall be unaffected.
Section 7. Findings. The Lewis County Board of Commissioners hereby adopts the above recitals
as findings of fact in support of this Ordinance.
Moratorium PAGE 2 of 3
Ordinance U94
PASSED IN REGULAR SESSION THIS 6th day of August 2018, without holding a public hearing.
Pursuant to RCW 36.70A.390, the public hearing on this matter must be held at least sixty days
following adoption.
APPROVED AS TO FORM: BOARD OF COUNTY COMMISSIONERS
Jonathan Meyer, Prosecuting Attorney LEWIS COUNTY, WASHINGTON
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ATTEST: Robert C. Jackson, Vice Chair
Rieva Lester, Clerk of the Board Gary Sta er, Commissioner
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Moratorium PAGE 3 of 3
Ordinance 1294
LEWIS COUNTY WATER DISTRICT NO. 2
LEWIS COUNTY, WASHINGTON C'pdbf
RESOLUTION NO. 7-24-2018
A RESOLUTION OF THE BOARD OF COMMISSIONERS OF
LEWIS COUNTY WATER DISTRICT NO. 2, LEWIS COUNTY,
WASHINGTON, ESTABLISHING A PROHIBITION ON THE
ACCEPTANCE OF NEW APPLICATIONS FOR INTER-
DISTRICT SEWER SERVICE; AUTHORIZING DISTRICT
STAFF TO WORK WITH LEGAL COUNSEL, ENGINEERING
SERVICES, AND OTHER STAKEHOLDERS TO ESTABLISH
ENFORCEMENT MECHANISMS; AUTHORIZING DISTRICT
STAFF TO PREPARE AND PROPOSE AN UPDATED
GENERAL SEWER PLAN; AUTHORIZING DISTRICT STAFF
TO WORK WITH LEGAL COUNSEL TO NEGOTIATE AN
INTERLOCAL AGREEMENT WITH LEWIS COUNTY WATER
SEWER DISTRICT NO. 5, PROVIDED CONDITIONS ARE
MET; AND PROVIDING FOR ENFORCEMENT.
WHEREAS, on July 4, 2004, Lewis County Water District No. 2 (District 2) and Lewis
County Water Sewer District No. 5 (District 5)entered into the Interlocal Agreement for Provision
of Wholesale Sewer Services, which was amended on March 8, 2006 (both the original and
amended agreements shall hereinafter be referred to as the "Agreement"). The purpose of the
Agreement was for District 2 to receive and treat wastewater from properties to be located in the
proposed Birchfield Fully Contained Community(Birchfield FCC),which was to share boundaries
with District 5. Birchfield FCC was planned to have approximately 2,700 residences, a 148 acre
golf course, a 120 room hotel, and a commercial business park;
WHEREAS,the Agreement was inextricably bound to the development of Birchfield FCC.
For example, Section 3 of the Agreement stated: "It is the intent of the parties to this Agreement
to implement the March 2004. waste water feasibility study provided for the benefit of District 5
and District 2 by Brown and Caldwell Engineers, which study is incorporated herein by reference
and shall serve as a foundation for this Agreement." The express purpose of the feasibility study
was "to present the feasibility analysis findings for increasing flow and adding capacity to the
Lewis County Water District 42 Wastewater Treatment Plant (Onalaska WWTP) to meet the
wastewater treatment needs of the Birchfield Master Planned Community";
WHEREAS, on December 19, 2006, Virgil Fox, the private developer of Birchfield FCC
and District 5 Commissioner, recorded the Birchfield Division II subdivision plat with Lewis
County, Auditor File No. 3268920 (Birchfield II). Birchfield H is a subdivision within the
boundaries of District 5 and is a separate entity from, although geographically included within,
Birchfield FCC. Birchfield II is estimated to comprise approximately ninety residential lots;
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WHEREAS, the area encornpasshlg District 5, Birchfield II, and the proposed Birchfield
FCC is zoned Rural Development District 10 (RDD-10) under the Lewis County zoning code,
which generally does not allow public sewer service. However,while the Birchfield FCC proposal
and application were pending, Lewis County amended its Comprehensive Plan and zoning code
to designate this area as a Proposed Urban Growth Area (UGA), which allows for public sewer
service. Because Birchfield II was platted and approved by Lewis County, independent and apart
from Birchfield FCC, residential development began on those lots while the Birchfield FCC
application and proposal were still pending.
WHEREAS, in February of 2017, Mr. Fox, in his capacity as private developer, withdrew
the Birchfield FCC application and proposal from consideration from the Lewis County
Department of Community Development. The Lewis County Comprehensive Plan Update,
adopted June 25,2018, removed all references in the Comprehensive Plan, zoning code and map,
and other planning documents to Birchfield FCC. The Proposed UGA that had overlaid District 5,
Birchfield FCC, and Birchfield H was eliminated and the area's land use was re-designated as
RDD-10. Those properties within Birchfield II already connected to the public sewer system were
grandfathered into the new zoning map as non-conforming properties authorized to utilize sewer
service. District 2 currently serves approximately seven properties within Birchfield II;
WHEREAS,the Dish let 2 Board of Commissioners considers the Agreement null and void
because its express and sole purpose was to govern the provision of inter-district sewer service for
Birchfield FCC, which no longer exists. The maximum potential provision of sewer service from
District 2 to District 5 will now only be approximately ninety residential lots in Birchfield II, not
the 2,700 residential lots, a golf course, hotel, and business park as originally intended and
proposed. This is a fundamental change that requires a new inter-local agreement for any inter-
district cooperation. Furthermore, Section 11 of the Agreement provides: `=This Agreement shall
remain in effect so long as District 5 meets the terms and conditions of this Agreement." Such
perfoimance is now impossible, given the non-existence of Birchfield FCC;
`AREAS,pursuant to RCW 57.08.005, District 2 has the power but not the obligation
to provide sewer service to properties located outside of its boundaries,and possesses full authority
to regulate the use and operation of its sewer system, including connections thereto. In
conformance with these statutory powers, the District 2 Board of Commissioners has determined
that it will not accept new applications for sewer service from property owners in Birchfield II
without a new inter-local agreement between District 2 and District 5 governing the provision of
inter-district sewer service;
WHEREAS, the District 2 Board of Commissioners desires to enter into a new inter-local
agreement with District 5 regarding the provision of sewer service to Birchfield II. However,
because Birchfield II is located entirely within District 5, District 2 is fully dependent on District
5 to effectuate successful and sustainable sewer service to Birchfield II properties. Because of this
dependence,prior to entering into negotiations for a new inter-local agreement,the District 2 Board
of Commissioners will require the District 5 Board of Commissioners to address and remedy, to
District 2's satisfaction, the following concerns:
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1. Washington State Auditor Report No. 1006702. On September 5, 2012, the Washington
State Auditor's Office conducted an evaluation of District 5 and found several major
concerns that do not appear to have been remedied.
a. Ethical Violations. The Auditor found that Virgil Fox has a beneficial interest in
District 5 by serving as a District 5 commissioner while also being a District 5
creditor,having sold the water and sewer system to District 5 pursuant to a Purchase
and Sale Agreement in September of 2003,the terms of which District 5 apparently
cannot satisfy given its current financial situation. Mr. Fox's response to the
Auditor's findings was that there were not enough people living in District 5 at the
time to comprise a full Board of Commissioners without him. That situation has
since changed, yet Mr. Fox remains on the Board of Commissioners. District 2
requires these ethical violations to be remedied prior to negotiating a new inter-
local agreement with District 5.
b. Financial Concerns. As noted above, Mr. Fox sold District 5 the water and sewer
system pursuant to terms that District 5 apparently cannot meet. In addition, the
Auditor found that District 5 does not charge water rates sufficient to cover
operating expenses and debt payments as required by RCW 57.08.081(2). These
financial problems may have been remedied through the several thousand
residential and commercial customers that were supposed to be available through
Birchfield FCC; however, Birchfield II will only comprise, at a maximum,
approximately ninety residential customers. This appears to put District 5 in a
difficult financial position. District 2 requires these financial concerns to be
remedied prior to negotiating a new inter-local agreement with District 5.
2. Sewer Facility Ownership. District 2 has received no conclusive documentation regarding
ownership of District 5's sewer lines. It appears that District 5 is still in debt to Mr. Fox
for the 2003 water and sewer facilities sale,which raises questions about who has secured
ownership and use rights of the those facilities. It also appears that Mr. Fox donated part
of the sewer facilities to District 5,but it is unclear which sewer facilities were donated and
which were sold. District 2 requires clear documentation that District 5 securely owns, in
fee, all of the sewer facilities in District 5;
WHEREAS, in addition to having the above concerns addressed by District 5, the recent
changes in the Lewis County Comprehensive Plan discussed herein requires District 2 to update
its general sewer plan; and
WHEREAS, the District 2 Board of Commissioners desires to codify the prohibition of
sewer service application from Birchfield II properties and conditions precedent for a new inter-
local agreement with District 5;now therefore
THE BOARD OF CONLMISSIONERS OF LEWIS COUNTY WATER DISTRICT NO. 2
DO ORDAIN AS FOLLOWS:
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Section 1. Findings. The District 2 Board of Commissioners adopts the recitals set
forth above, which are incorporated herein by reference, as findings in support of the prohibition
imposed by this Resolution.
Section 2. Prohibition on Birchfield II Applications. Pursuant to its full authority in
RCW 57.08.005 to regulate the use and operation of its sewer system,the Board of Commissioners
will not accept, nor approve, any applications for sewer service from property owners located in
the Birchfield Division II subdivision unless and until District 2 and District 5 execute a.new inter-
local agreement governing the terms and conditions of such inter-district sewer service. The
prohibition established herein shall not apply to Birchfield II customers currently being served by
District 2 as of the effective date of this Resolution.
Section 3. Conditions Precedent. The District 5 Board of Commissioners must
remedy, to the District 2 Board of Commissioner's satisfaction, the ethical, financial, and
ownership issues raised in the recitals as conditions precedent to District 2 entering into
negotiations with District 5 for a new inter-local agreement governing inter-district sewer service
to properties in Birchfield Division II.
Section 4. Authorization - General Sewer Plan. District staff is authorized to work
with state and county authorities and engineering services to prepare and propose to the Board of
Commissioners a revised and updated general sewer plan, which reflects the termination of the
Birchfield FCC and service to Birchfield Division II.
Section 5. Authorization - Enforcement Mechanisms. Distiict staff is authorized to
work with District legal counsel, engineering services, and state and county authorities to identify
lawful processes to disconnect properties located in Birchfield Division II from District 2's sewer
system that unlawfully connect in order to enforce the District Code and this Resolution, and to
prepare and propose a plan to accomplish the same to the Board of Commissioners.
Section 6. Authorization-Inter-local Agreement. District staff is authorized to work
with District legal counsel to negotiate the terms and conditions of an inter-local agreement with
District 5 to govern the provision of inter-district sewer service to new properties located in
Birchfield Division II, provided that District 5 satisfies the conditions precedent of Section 3 of
this Resolution.
Section 7. Enforcement. The requirements of this Resolution shall be subject to the
enforcement provisions of the District Code.
Section 8. Severability. If any provision of this Resolution or its application to any
person or circumstance is held invalid or unconstitutional by a court of competent jurisdiction, the
remainder of the Resolution, or application of the provision to other persons or circumstances, is
not affected.
Section 9. Effective Date. -T'r ‘501+ :ate h\\ br-eCCe c":- ar fie_
cam- or c40 9-.\-:z4-+ c,.e \04-VN-0•
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ADOPTED by the Board of Commissioners of Lewis County Water District No. 2, Lewis
County, Washington, at a special meeting held on July 24,2018.
Lewis County Water District No. 2
By Cr.,a -? /. I
Carrie Co son, Commissioner
By ' 7 -- -
Kevin Emerson, Commissioner
By ';ibl 1W..►A
James Watt, Commissioner
5
RCW 36.70A.390
Moratoria, interim zoning controls—Public hearing—Limitation on length—Exceptions.
A county or city governing body that adopts a moratorium, interim zoning map, interim zoning
ordinance, or interim official control without holding a public hearing on the proposed moratorium, interim
zoning map, interim zoning ordinance, or interim official control, shall hold a public hearing on the adopted
moratorium, interim zoning map, interim zoning ordinance, or interim official control within at least sixty days of
its adoption, whether or not the governing body received a recommendation on the matter from the planning
commission or department. If the governing body does not adopt findings of fact justifying its action before this
hearing, then the governing body shall do so immediately after this public hearing. A moratorium, interim
zoning map, interim zoning ordinance, or interim official control adopted under this section may be effective for
not longer than six months, but may be effective for up to one year if a work plan is developed for related
studies providing for such a longer period. A moratorium, interim zoning map, interim zoning ordinance, or
interim official control may be renewed for one or more six-month periods if a subsequent public hearing is
held and findings of fact are made prior to each renewal.
This section does not apply to the designation of critical areas, agricultural lands, forestlands, and
mineral resource lands, under RCW 36.70A ' i, and the conservation of these lands and protection of these
areas under RCW prior to such actions being taken in a comprehensive plan adopted under RCW
. and implementing development regulations adopted under RCW ..:h if a public hearing is
held on such proposed actions.
H . `
BOCC AGENDA ITEM SUMMARY
Resolution: BOCC Meeting Date: Aug 06, 2018
Suggested Wording for Agenda Item: Agenda Type: Consent
An ordinance adopting a moratorium upon certain building permits within the boundaries of Water-Sewer
District #5 and directing the setting a hearing date.
Contact Lee Napier Phone: 3607402606
Department:
Action Needed: Approve Ordinance (traffic or other)
Description
On July 24, 2018, the Water District 2 (District 2) Commissioners adopted Resolution No. 7-24-2018 stating
District 2 will not accept new applications for sewer service from property owners in District 5 without a new
interlocal agreement between District 2 and District 5. In response to a verbal request, Lewis County will enact
a moratorium upon certain building permits within the boundaries of Water-Sewer District #5 and direct the
setting ()la public hearing.
Approvals:
User Group Status
Napier, Lee Pending
Eisenberg, Eric Pending
Lester, Rieva Pending
York, Danette Pending
Additional Copies
Lee Napier, Danette York. Pat Anderson, Eric Eisenberg, Tom Stanton
•