HomeMy WebLinkAboutSUB2025-00007 Pre Hearing Order
PREHEARING CONFERENCE ORDER - 1
Jefferson County Hearing Examiner
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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BEFORE THE HEARING EXAMINER
IN AND FOR THE COUNTY OF JEFFERSON
Application for JEFFERSON
COUNTY AIRPORT LIGHT
INDUSTRIAL PARK BINDING SITE
PLAN
PORT OF PORT TOWNSEND
Applicant,
Location: JEFFERSON COUNTY
INTERNATIONAL AIRPORT
FILE NO.: SUB2025-00007
PREHEARING ORDER
PREHEARING CONFERENCE ORDER - 2
Jefferson County Hearing Examiner
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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I. July 10, 2025 Public Pre-Decision Hearing Cancelled
The public hearing for this matter was briefly opened but cancelled on July
10, 2025, upon discovery that inadequate public notice was given for the hearing.
The following persons appeared for the applicant: None.
The following persons appeared for the county: David Wayne Johnson,
Project Planner, Department of Community Development.
No members of the public appeared.
II. Hearing Examiner Procedural Findings and Conclusions
A. Public Notice.
1. Because a number of parties of record were not notified of the July 10,
2025 hearing, the Hearing Examiner concluded that the hearing should be
cancelled and completely re-noticed.
2. The Examiner highlights the following requirements for public notice for
a Type III hearing:
a. JCC 18.40.150 requires public notice of the application and the open
public hearing for a Type III public open record hearing.
b. JCC 18.40.210 contains the requirements for mailing, publication and
posting for a Notice of Application. They include mailing of notice
to property owners within 300 feet of the parcel upon which
development is proposed, physical posting of the property with
signage, and publication in the newspaper.
c. JCC 18.40.230 contains the requirements for mailing, publication and
posting for the Notice of Public Hearing. They include mailing of
notice to property owners within 300 feet of the parcel upon which
development is proposed, physical posting of the property with
signage, and publication in the newspaper. It also specifies that the
PREHEARING CONFERENCE ORDER - 3
Jefferson County Hearing Examiner
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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administrator for the Department is required to receive public
comments.
d. JCC 18.40.240 contains additional requirements for preliminary plats
that are contained in the state subdivision statute (RCW 58.17.080
and .090). Although the binding site plan requirements in Article V
chapter 18.35 JCC do not explicitly state that JCC 18.40.240 is
applicable, the Examiner has determined these requirements should
be followed in this case.
e. Hearing Examiner Rule of Procedure 2.3(b) requires “A declaration
attesting to the notice given of the hearing, including dates and places
of publication, persons and addresses noticed, and lists of addresses
for adjacent property owners shall be part of the record for each case.”
This declaration must be prepared by the Department and continually
updated through the completion of the case so that it provides a
complete record of public notice.
f. Rule 5.6(b) of the Hearing Examiner Rules of Procedure also requires
the Examiner’s Office to provide a Parties of Record Registry for each
case. “Parties of record” is defined as “persons or entities who wish to
receive a copy of the examiner’s decision and notice of upcoming
hearings.” JCC 2.30.030(17).
g. RCW 36.70B.130 requires the County to issue a Notice of Decision at
the end of the hearing to “the applicant and any person who, prior to
rendering of the decision, requested notice of decision or submitted
substantive comments on the application.”
h. The State Environmental Policy Act (SEPA) requires notice regarding
a project application that requires SEPA review. WAC 197-11-502, et
seq., contains additional requirements for notice to agencies with
PREHEARING CONFERENCE ORDER - 4
Jefferson County Hearing Examiner
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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jurisdiction and agencies with expertise, as well as procedures for
inviting public comment. The planner should ensure that any SEPA
commenters and any agencies with jurisdiction and agencies with
expertise are included on public notice lists.
3. It is apparent from the list above, which is not intended to be exhaustive,
that a number of different public notice requirements are applicable to a Type III
Decision. The Examiner’s Office needs a “parties of record registry ,” a declaration
with respect to public notice, and a list of everyone who submitted comments or
asked for a copy of the final decision at any time during the process to comply with
RCW 36.70B.130. The Department must also develop a list of all property owners
within 300 feet of the development site who were notified of the application and of
the hearing. Creating three or more different lists to meet different regulatory
requirements would be administratively burdensome. The Hearing Examiner
therefore requests that the Department provide the declaration pursuant to
Hearing Examiner Rule of Procedure 2.3 to comply with all the various listed
public notice requirements listed above, and any others that may exist. The
Department should keep the list updated with the information required as
additional persons and entities become involved in the hearing process . Should the
Examiner’s Office receive public comments or requests for the decision after the
close of the record, the Examiner’s Office can either work with the Department to
update the declaration, or prepare a supplemental declaration, whichever is most
efficient.
4. In another recent Type III open record public hearing, SUB2025-00012,
the planner representing the Department provided the Hearing Examiner with a
chart with a public notice list. This appears to be an efficient manner for the
planner to keep the public notice list easily updated. This list can be attached to a
declaration, sworn under penalty of perjury, attesting to the accuracy of the list
PREHEARING CONFERENCE ORDER - 5
Jefferson County Hearing Examiner
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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and compliance with the requirements of the code, in order to meet the
requirements of Hearing Examiner Rule of Procedure 2.3(b).
B. Exhibits Should Be Submitted At Least 5 Days In Advance of
Hearing.
1. As stated in Rule 4.3 of the Hearing Examiner Rule of Procedure, the
record shall be made publicly available. In addition, it is required that:
All forms of written authority including briefs, staff reports, and other
memoranda upon which a party of record will be relying or presenting
at the hearing must be submitted in writing to the examiner’s office, at
least 5 days in advance of the scheduled hearing. To the extent
possible, other materials such as letters, exhibits, scientific or technical
data, must be submitted in writing at least 5 days in advance of the
scheduled hearing. The documents submitted may be entered into the
record by the examiner’s office and the examiner’s office may update
the Exhibit List. Newly added record documents shall be made
publicly available. (Emphasis added).
2. The Applicant and the Department should ensure that they submit all
supporting documents to the Examiner’s Office as soon as they are available, and
at least 5 days prior to the hearing, so that the Examiner and the public have the
opportunity to review them prior to the hearing. While exhibits can be admitted
during the hearing, that practice should be kept to a minimum. A failure to
respect these rules will result in delay during the hearing process, including
continuance and postponement of the public hearing.
C. Requests Regarding the Project Application.
1. The Hearing Examiner thoroughly reviewed the file prior to the July 10,
2025 hearing date. The following section of this order will detail questions that
arose during review of the written record, with requests that the Department or
the Applicant, whichever is applicable, supplement materials in the file to ensure
that the record clearly provides details of the project in compliance with the code.
PREHEARING CONFERENCE ORDER - 6
Jefferson County Hearing Examiner
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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2. Project Permit Application (Exhibit 3): The project application document
that appears as Exhibit 3 does not meet the requirements of JCC 18.40.100. Nor
does it meet the requirements of JCC 18.35.280, .290, and .300, as required by JCC
18.35.480(3). If this document is the only application on file, t he Applicant, with
the help of the Department, should review the extensive list of requirements in
these sections of the code and provide an exhibit or exhibits that meets each and
every applicable requirement. While the list is too extensive to provide a complete
inventory of what is missing, some of the concerning omissions in JCC 18.40.100(1)
include the following: (1)(a) completed project application form with SEPA
checklist; (1)(b) verified statement by the Applicant ; (1)(c) point of contact or agent
representative, including authorization as speaking agent for the Applicant ; (1)(d)
legal description of the site; (1)(f) certificate of adequate water supply from
provider; (1)(g) evidence of septic approval or soils testing and an indication of
suitability of the site for the system planned for the site from the entity providing
septic approval; and (1)(i) list of all other federal, state, or local permits required .
Subsection (2) of this code section regarding the site plan will be addressed below.
The binding site plan ordinance (and state law) requires that the Hearing
Examiner review extensive and detailed information to ensure that the binding site
plan will serve the public use and interest and adequate provision has been made
for the public health, safety and general welfare . JCC 18.35.490. That finding
cannot be made without letters in the record from a number of entities, including
but not limited to: utility providers, the fire marshal, East Jefferson Fire and
Rescue, Olympic Region Clean Air Agency, Department of Public Works regarding
transportation and drainage, Environmental Public Health or the state Department
of Ecology, the Department of Transportation, and others demonstrating that the
site plan proposed and the uses intended meet all local, state and federal
requirements. Reference to notes from a prehearing conference are not adequate.
PREHEARING CONFERENCE ORDER - 7
Jefferson County Hearing Examiner
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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Each of the application requirements must be addressed, and letters from utility
and service providers must be included in the record indicating that agency has
reviewed an application and site plan (which is completed to meet the requirements
of the code) and a determination of requirements or sufficiency, as applicable . In
the absence of letters, utility and service providers must testify provide testimony
under oath concerning all public health and safety matters as required by code.
3. Site Plan: The site plan meets some of the requirements of JCC
18.35.300, but there are significant omissions that the Hearing Examiner noticed.
Again, the following list of omissions is not intended to be exhaustive:
• building envelopes and landscape plans are missing;
• a map that shows areas of any logging;
• narrative conceptual drainage analysis;
• location for the LOSS system does not appear on the site plan;
• lighting, transit stops, and emergency access must be addressed, along
with turnaround needs for fire trucks;
• proposed covenants, conditions, and restrictions will be required to
ensure that restrictions such as those in required by the Airport
Overlay itself, the Federal Aviation Administration, the Olympic
Region Clean Air Agency, and others. All of the restrictions should be
described in detail so they will be known and understood by each of
the lot lessees. In addition, the critical areas code contains significant
restrictions of uses due to the location of the site in the critical aquifer
recharge area.
This list is not intended to be exhaustive; it is the Applicant’s responsibility
to ensure that all requirements of the code are met and that the site plan is well
labeled and contains the detail required in the code .
PREHEARING CONFERENCE ORDER - 8
Jefferson County Hearing Examiner
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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4. Uses: Under JCC 18.100(2)(e), the Applicant must disclose all the proposed and
existing uses of the property. The Essential Public Facility-Airport, Airport
Overlay III “zone” does not appear to have a conventional list of uses. “Non-
aviation related light industrial/manufacturing” uses are permitted within the
Airport Overlay III designation. JCC 18.15.453(3). The term “non-aviation
related light industrial/manufacturing” is not defined in chapter 18.10 JCC. The
only related definitions are “light industrial”1 at JCC 18.10.120 and
“manufacturing”2 at JCC 18.10.130. Typically, a zoning code would define which
uses are permitted, which are conditional uses or require other types of special
permits, and which are prohibited-- an overlay is not the zoning district itself. An
overlay
places additional regulations on existing zones within areas of special concern. Their
boundaries . . . are fixed and usually encompass all or part of multiple zones. Overlay
zones are often used in floodplains, hillsides, near fault lines, around airports, and in
other areas where additional regulations are necessary to ensure public safety. Overlay
zones are also commonly applied to downtowns and historic districts to ensure a certain
aesthetic character.
Institute for Local Government, Understanding the Basics of Land Use and
Planning Guide to Local Planning, p.25 (2010).3 While there are some development
standards in JCC 18.15.453 such as impervious surface limits, vegetation retention
and perimeter buffering, and the requirement for low impact development, there is
no column that appears in the use table in JCC 18.15.040 that indicates there has
1 “Light industrial” means a use involving: (a) basic processing and manufacturing of materials or products
predominantly from previously prepared materials; or (b) finished products or parts, including processing,
fabrication, assembly, treatment, packaging, incidental storage, sales, and distribution of such products, but
excluding basic processing of raw materials except food products.
2 “Manufacturing” means the mechanical or chemical transformation of materials or substances into new
products, including the assembling of component parts, the creation of products, and the blending of materials,
such as lubricating oils, plastics, resins, or liquors.
3 https://www.ca-ilg.org/document/guide-local-planning
PREHEARING CONFERENCE ORDER - 9 Jefferson County Hearing Examiner
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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been a determination of appropriate uses in this area. In addition, the staff report
references a request for an “informal code interpretation” regarding the range of
uses. While such a request is outside the jurisdiction of the Hearing Examiner in
this hearing, it indicates the amount of ambiguity surrounding JCC 18.15.453.
D. Summary.
Given the issues outlined in this order, including notice, sufficiency of
the application, and ambiguity regarding uses permitted under the code, the
Hearing Examiner believes the best course of action at this time is to hold a
prehearing conference to discuss each of these issues. The rules pertaining to a
prehearing conference appear in Rule 3.2 of the Hearing Examiner Rules of
Procedure, and the prehearing conference must be noticed in accordance with Rule
2.3.
II. ORDER
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows:
The Department and the Applicant, as Principal Parties in this case, shall
consult as soon as possible and provide the Hearing Examiner with options for a
date and time for a Prehearing Conference. The Prehearing Conference must be
be noticed in accordance with Hearing Examiner Rules of Procedure 3.2(b) and 2.3,
so any time set for the Prehearing Conference must allow sufficient time for the
required notice.
DATED this 25th day of July, 2025.
Barbara Dykes Ehrlichman
JEFFERSON COUNTY HEARING EXAMINER