HomeMy WebLinkAbout242.Tracy, J.-ThorndykeFHM 5-5_Comments on Locally Approved Jefferson County SMP
Michelle McConnell
From:James C. Tracy [jctesq2002@yahoo.com]
Sent:Wednesday, May 05, 2010 8:08 AM
To:Stewart, Jeff R. (ECY)
Cc:Norman MacLeod
Subject:Comments on Locally Approved Jefferson County SMP
Attachments:FHM SMP Comment 8Sep09.doc; FHM SMP Comment 15Jan09.doc; CAO COMP PLAN
1.wpd; CAO COMP PLAN2 2.wpd; DOE SMP Comment - May 2010.doc
Categories:LASMP Public Comment
THE LAW OFFICES OF
JAMES C. TRACY, P.S.
ATTORNEY & COUNSELOR AT LAW
OLYMPIC PEAKS BUILDING
21106 President Point Rd. NE
Kingston, WA 98346
Tel: (360) 779-7889 Cell : (360) 731-4550
May 5, 2010
Delivered via e-mail to: jeff.stewart@ecy.wa.gov
Department of Ecology
State of Washington
PO Box47775
Olympia, WA 98504
Attn: Jeffree Stewart
Dear Mr. Stewart:
This letter and its attachments comprise comments on the Shoreline Master Program (SMP)
“locally approved”/adopted by Jefferson County and subject to the Department of Ecology’s
(DOE) comment period ending May 11, 2010. The subject matter of these comments includes input
regarding the Jefferson County Critical Area Ordinance (CAO), adopted by reference in the
locally adopted SMP, and incorporates by reference my previous comments submitted to
Jefferson County during the SMP and CAO development processes.
As a threshold matter, several issues of procedural irregularity regarding the local adoption
of the SMP should be addressed by DOE prior to any further consideration of the document by
the State of Washington.
First, Jefferson County held its public hearing on TWO proposals before it, without a
specific proposed action and without a recommendation on a single proposal as required by
Jefferson County Code and RCW 36.70.030. Please see the attached letter of September 8, 2009,
for a detailed foundation and analysis of this factual matter. In summary, the procedure
utilized by Jefferson County to hold a public hearing was not only statutorily infirm, it was
only made clear to the reviewing/commenting public which was the actual proposal being heard
at the hearing itself, depriving non-attending public of accurate information and failing to
prepare the attending public for meaningful participation/comment.
Second, further compounding the procedural and statutory impropriety demonstrated above, in
their post-hearing “deliberations” the Jefferson County Board of Commissioners (BOCC)
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considered no less than five separate “pick lists” which identified voluminous “issues” and
made material changes to the proposed document(s). (See Jefferson County SMP website for
these “pick lists”, incorporated by reference as though fully included here.) A public
hearing on the BOCC final proposed SMP, essentially a new proposal by the BOCC, was never
held by Jefferson County nor was a recommendation from the Planning agency issued, in further
violation of RCW 36.70.030 and WAC 173-26-100.
In sum, since DOE has before it a proposed SMP enactment which was not subject to meaningful
public participation and was not properly “adopted” by the local government, it should not
proceed with its responsibilities under RCW 90.58.090 until such time as it does.
Further, Jefferson County has never held a public hearing on a proposed SMP which included
all the SMP’s required components.
For example, the Integration and Consistency components of the proposed SMP (dated in 2006)
are based on either incomplete or obsolete information which does not reflect current case
law, statutory or administrative code provisions. Nor do these documents include
consideration of the then pending Pope Resources/Hood Canal Sand and Gravel (Now Thorndyke
Resource) marine transportation application (aka “Pit-to-Pier”) in specific non-compliance
with the requirements of RCW 90.58.100. The Integration and Consistency Reports are actually
based on Jefferson County’s Draft 2000 SMP. (See, Exhibits B and C, Consistency and
Integration Reports, Adolphson Associates Inc., 2006, Jefferson County SMP website.)
The Cumulative Impact Analysis (required by DOE’s SMP Grant), in either final draft or final
form, was not available for public review when the SMP was “locally approved”. (See,
Jefferson County SMP website.) This cumulative impact analysis completely omits discussion of
the Thorndyke Resource (formerly Pope Resources/Hood Canal Sand and Gravel) marine
transportation application pending at the time of the draft report’s publication (See
requirements in RCW 90.58.100), completely omits discussion of non-residential uses permitted
as conditional uses in Residential and Conservancy SEDs, and contains factually inaccurate
information regarding the then applicable Mineral Resource Land Overlay (MRLO). In fact, none
of these documents reflected the accurate content of the SMP as “locally adopted by the BOCC.
The state should not proceed with further review of a Jefferson County “locally adopted” SMP
until these deficiencies are rectified. When rectified, the DOE should hold a hearing on the
complete SMP submission by Jefferson County.
JeffersonCountyhas not complied with the requirements of RCW 36.70A.040 which requires
internal consistency between the SMP and the Jefferson County Comprehensive Plan, or with the
requirements of WAC 173-26-201(2) (a) for adequate scientific/technical foundation of amended
SMP provisions. For example, the proposed SMP proposes to outright ban water dependent uses
(industrial piers of a certain type) which are specifically allowed as conditional uses in
the JCCP and Unified Development Code (UDC) and specifically identified by RCW 90.58 as
priority uses.
Nor has Jefferson County provided a meaningful analysis of the constitutional issues raised
by the proposed SMP, particularly in light of recent case law at the state and federal
judicial levels. Jefferson County has posited a conclusory, “illustrative only” and on its
face “brief and general” analysis which fails to substantively address any of the specific
provisions of the proposed SMP that have been challenged in the drafting/review process as
having potential constitutional infirmities. Some of the questions answered in the document
completely lack legal citation/foundation. For example, individual property restrictions
(standard buffer requirements of 150 feet) are applied on a “landscape” basis without
consideration of the “nexus and proportionality” requirements of state and federal case law.
(Applicable citations omitted.) The various proposed SMP provisions challenged on the basis
of their constitutional propriety/legitimacy are established in the record are not
exhaustively detailed here, but rather are incorporated by reference from the record (from
both the SMP and CAO local adoption processes) as though fully set forth herein. Jefferson
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County cites the AG Report of 2006, but none of the annual updates of this report required by
RCW 36.70A.370 (1). Further, the limited discussion presented in the “Legal Review on
Takings” is (apparently) dated/cited as Feb. 2010 on the County website (no date included on
the document itself), long after “local adoption” of the SMP. A seeming afterthought, this
document states that DOE “doesn’t seem to mandate the use of that (AG) memo”, despite the
clear requirement to the contrary in RCW 36.70A.370 (2). This document refers vaguely to “the
listed sections of the LA-SMP where constitutional considerations and limitations are either
reflected or discussed” without specific references, leaving it to the reviewer to peruse
the document for any additional meaningful information/analysis. This reviewer is unable to
find any constitutional analysis contained in the “locally adopted” SMP other that the
generic restatement of RCW 36.70A.020 (6) included at Article I (3) (D). Please advise if
this is in error. This “Legal Review on Takings” is clearly inadequate to give either the
public or decision makers an adequate foundation to analyze and/or determine compliance with
RCW 36.70A.020 (6).
Finally, Jefferson County has not complied with WAC 173-26-186 (5) which (inter alia)
requires (unless there is a compelling reason to the contrary), that the proposed SMP be
consistent with the requirements of RCW 82.02. This issue highlights the fact that the
proposed SMP utilizes a definition of “should” that is facially inconsistent with the
applicable definition contained in WAC 173-26-020 (32), and therefore is improperly
applied/understood (by both decision makers and the commenting public) throughout the entire
document and its local review process.
The locally approved SMP incorporates by reference the Jefferson County Critical Areas
Ordinance (JCCAO). (See Appendix B, Locally Approved Jefferson County SMP.) As a result, the
contents of the JCCAO are subject to DOE review (as a new “significant legislative rule”
pursuant to WAC 173-26-186) as part of the SMP review process. This fact was never announced
or considered - neither by Jefferson County nor by DOE - in the notices for the public
hearings or in the introductory remarks by DOE Staff at the public hearing. Thus the public
was deprived of an opportunity to comment on the JCCAO and its incorporation in the proposed
SMP.
Specifically, and in supplement to the plethora of CAO contested issues specified in the
JCCAO adoption record which were not considered by the county in local adoption of the SMP,
incorporation of the JCCAO into the SMP is improper/infirm because:
1. The Reasonable Economic Use Variance, CAO Section 18.22.090, violates RCW
36.70A.020 (6) because it:
A. Fails to contain a definition of AReasonable Economic Use@; B. Improperly
shifts the burden of defining a AReasonable Economic Use@to the party who has suffered damage
or taking of their state and federal constitutional property rights; C. Improperly
denominates the procedure described as a AVariance@; D. Improperly places inordinate
financial burdens on a damaged party to seek redress for harm to or deprivation of their
state and federal constitutional property rights; E. Improperly allows standing to
parties lacking standing to determine the nature and scope of protected state and federal
constitutional property rights; F. Improperly incorporating decision criteria which
are arbitrary, vague, redundant, incapable of determination and impossible for the damaged
party to achieve; G. Improperly incorporating mitigating conditions which would
unreasonably and inappropriately burden a party whose protected state and federal
constitutional property rights have been damaged by the action of the County.
2. The CAO and the adopting ordinance fail to set forth the balancing of the Goals of
the GMA required by the statute and Washington case law.
3. The Findings of Fact and Conclusions of Law adopted by the Board of County
Commissioners do not demonstrate and substantiate their grounding in substantial evidence,
analysis, nexus and proportionality required by the statute and Washington case law.
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Contested Findings of Fact and Conclusions of Law include, but are not limited to, Nos. 12,
15-64, 89, 90, 105, 130. 140, 142-146, 148-152, 155 and 156.
4. CAO Section 18.22.095 grants an improper/impermissible delegation of authority to
the Administrator by granting the ability, based on the Administrator=s opinion, to determine
whether a Biological Assessment shall be required for determination of a Afunctionally
isolated@buffer.
5. CAO Section 18.22.550 grants an improper/impermissible delegation of authority to
the Administrator by granting the ability to determine whether portions of the requirements
of the CAO may be waived without preparation of an approved Critical Area Stewardship Plan.
Finally, I request that DOE answer several of the questions I asked at the “public hearing”,
in writing, at their earliest opportunity. These questions include:
1. Is “local adoption” required before the DOE will proceed with an action
to approve a Jefferson County SMP? In other words, does DOE contemplate “adopting a SMP
without local approval pursuant to RCW 90.58.090 or other authority?
2. Will comments/questions received in the SMP review process thus far be
answered by either DOE or Jefferson County prior to any action on a Jefferson County SMP?
3. Will State level legal review of any proposed Jefferson County SMP be
available for review prior to any DOE action on same?
4. Will Jefferson County/DOE compliance with the requirements of RCW
90.50.340, RCW 36.70A.480 and RCW 34.05.328 (1) (h) be available for public review either
before the next hearing on a Jefferson County SMP or any DOE action regarding same?
I am available to further discuss and/or analyze the infirmities of the locally approved
JCSMP at your convenience. I firmly believe that now is the time for resolution of these
infirmities, rather than deferring their resolution to the judicial process. Such would be a
terrible waste of both temporal and financial resources of both the public and the
government, particularly since there has been no showing that the shorelines of Jefferson
County are either severely threatened in the near term or that the existing JCSMP is
materially defective for purposes of achieving the objectives of the Growth Management Act or
the Shoreline Management Act.
For the reasons stated herein and in the attachments to this letter, DOE should immediately
“deny approval at this time and work with Jefferson County on bringing the program into
compliance with all applicable laws and rules”. For its part, DOE should be prepared to
comply with the requirements of state law and administrative code when next Jefferson County
submits an appropriate “Locally Adopted SMP” for their review.
Sincerely,
James C. Tracy, WSBA #15656
Land Use Counsel
Thorndyke Resource, Fred Hill Materials, Inc.
Attachments (included in e-mail submittal)
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THE LAW OFFICES OF
JAMES C. TRACY, P.S.
ATTORNEY & COUNSELOR AT LAW
OLYMPIC PEAKS BUILDING
18887 STATE HWY #305 NE - SUITE 500
POULSBO, WA. 98370-7401
Ph: (360) 779-7889 Fax: (360) 779-8197
e-mail: jctesq2002@yahoo.com
September 8, 2009
Board of County Commissioners
County Administrator
Planning Director
Jefferson County
Port Townsend, Washington
In Re: FHM Comments on Proposed Shoreline Master Program Update
Gentlemen:
On January 21, 2009, Fred Hill Materials, Inc. submitted the attached comments on the proposed
draft update of the Jefferson County Shoreline Master Program (SMP).
This letter provides additional comments regarding the draft update(s) currently being considered
by the Board of County Commissioners (BOCC).
As an initial matter, FHM has previously informally indicated a procedural issue that needs to be
prior
specifically addressed to identification and BOCC adoption of a final SMP Update. Since
there appears to have been no resolution of this issue on the basis of informal inquiry, FHM now
states this issue as official comment in the hope that its resolution can assist the County in
avoiding an obvious legal challenge to its final action.
Procedural Issue -
RCW 36.70, the Planning Enabling Act, provides two alternative mechanisms for the creation of
a “Planning Agency”:
1.By ordinance a board may create a planning commission and provide for the appointment by
RCW 36.70.030
the commission of a director of planning. (, Commission — Creation.); or,
2.By ordinance a board may, as an alternative to and in lieu of the creation of a
planning commission as provided in RCW 36.70.030, create a planning department which
shall be organized and function as any other department of the county. When such
department is created, the board shall also create a planning commission which shall assist
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the planning department in carrying out its duties, including assistance in the preparation and
execution of the comprehensive plan and recommendations to the department for the
adoption of official controls and/or amendments thereto. To this end, the planning
commission shall conduct such hearings as are required by this chapter and shall make
findings and conclusions therefrom which shall be transmitted to the department which shall
transmit the same on to the board with such comments and recommendations it deems
RCW 36.70.040
necessary.( Department — Creation — Creation of commission to assist
department.)
The authority for a county to engage a “Planning Agency” is limited to one of these two
methods. (See RCW 36.70.050) Further, RCW 36.70.420 requires that “A copy of a
comprehensive plan or any part, amendment, extension of or addition thereto, together with the
motion of the planning agency approving the same, shall be transmitted to the board for the
purpose of being approved by motion and certified as provided in this chapter.”
Now before the BOCC, according to the DCD web page, are two documents, (1) the Planning
Commission recommended SMP Update, and (2) the DCD Staff Recommendation for the SMP
Update. This situation creates several problems.
The DCD website invites comments on either document. Yet, there is no “motion of the
Planning Agency” for either document. Since the resolution creating the Planning Agency has
the BOCC hiring the Planning Director, the Planning Commission is, therefore, advisory to the
Planning (DCD) Director. Which document will the BOCC consider as the adoption action
proposed? If it is the Planning Commission recommendation, then the statute is violated. If it is
the Staff Recommendation, the statute is likewise violated. If neither action is to be considered
for adoption and the BOCC makes any material changes and/or chooses to initiate their own
proposed action, then the Planning Agency must be given 90 days to prepare a
report/recommendation. Then, a “Planning Agency” may prepare its motion for the BOCC.
Should the Planning Agency fail to respond within the 90 day period, the BOCC may act upon
their proposed comprehensive plan or amendment thereto, but only after holding a public hearing
on their specific proposal. (See, RCW 36.70.430-440)
This issue/problem must be addressed and rectified before the BOCC can proceed with adoption
of a SMP Update. To do otherwise would violate the clear terms of the Planning Enabling Act,
Jefferson County’s resolution establishing the Planning Agency, and deprive the citizens of
Jefferson County of the opportunities for adequate notice and meaningful participation in the
planning and regulatory process.
Comments on the DCD Staff Draft Proposal
(Note: Since the Planning Commission is advisory to the Planning (DCD) Director, FHM will
comment on only the DCD document.)
1.P 1-3/ll 25 - The SMP must be “consistent” with, not merely “coordinated with” the
comprehensive plan. See, for example, RCW 36.70A.070.
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2.P 1-5/ll 21 - This statement facially conflicts with #1., above.
Article 2 - Definitions – Words, particularly regulatory words have meaning and must
adequately inform those regulated what is necessary to achieve compliance. Further, without
adequate definition, the discretion granted to the Shoreline Administrator is bounded only my
opinion, or worse, bias. (Note: See attached for specification of original comments on
Definitions. These are incorporated herein by reference as though fully set forth.)
“A” Definitions
1. 8. “Adequate”. No change/response provided.
2. 9. “Adjacent”. No change/response provided.
3. 10. “Adjacent lands”. No change/response provided.
4. 12. “Adverse impact”. Proposed change does not respond to comment.
5. 16. “Agricultural activities” should include processing of goods produced on that parcel.
These are included in “forestry activities”.
6. Why is there no definition of agricultural lands of long term commercial significance?
7. 21. “Alteration of nonconforming structures”. No change/response provided.
8. 24. “Appeal”. No change/response provided.
“C” Definitions
1. 14. “Compatible”. No change/response provided.
“D” Definitions
1. 4. “Degrade”. No change/response provided.
2. 10. “Director”. No change/response provided.
“N” Definitions
1. 5. “Noise”. No change/response provided.
“O” Definitions
1. 6. “Open Record Hearing”. No change/response provided.
2. 10. “Ordinary High Water Mark”. Suggest providing the statutory citation for this and
all other statutory definitions.
“P” Definitions
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1. 13. “Plat”. Suggest providing the statutory citation for this and all other statutory
definitions.
2. 16. “Predecision Hearing”. What is the purpose of this definition? Aren’t all hearings in
Jefferson County “Predecision hearings?”.
3. 17. “Preliminary Plat”. Suggest providing the statutory citation for this and all other
statutory definitions.
“S” Definitions
1. 45. “Substantially degrade”. No change/response provided.
“T” Definitions
1. Transportation Facility – Need to add a definition that describes private transportation
facilities under SMP jurisdiction (i.e. marine transport of goods or people). Without such a
definition, such uses are impossible to categorize in these SMP provisions.
“V” Definitions
1. 6. “Vicinity”. A definition, particularly for land use regulatory purposes, cannot be so
vague as to contain the word “generally”. Further, what is the basis/foundation for the arbitrary
specification of 1 mile? Lacking indication of materiality, as suggested in FHM’s original
comment, this definition remains fatally flawed. The general public has no understanding of the
“nexus” and “proportionality” requirements applicable to quasi-judicial decisions, and this
definition would be a continued source of consternation and confusion. A definition, by
definition for land use regulatory purposes, must indicate what is being expected from the
applicant and provide meaningful guidance to the decision maker and the participating public.
ARTICLE 4 –
1-C All marine shorelines in Jefferson County are Shorelines of Statewide Significance. Strike
either “Shorelines of Statewide Significance” or “saltwater shorelines” as redundant and
potentially confusing. Public understanding is probably most assured by striking “Shorelines of
Statewide Significance”.
1-G-4 Shoreline maps are either jurisdictional or they are not. In the case of a conflict between
the map and actual physical conditions, no interpretation is necessary. Actual condition should
govern the application of the SMP.
17-B-6 Suggest striking this section as vague, ambiguous, and inconsistent with shoreline
environment definitions.
17-C-1&2 The definition and differentiation between these two designation is totally unclear.
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Suggest either specifying the vague and ambiguous existing definitions or striking one of the
other as redundant.
17-C-3-ii-Bullet 6 Suggest that the words “cannot be adequately mitigated” be inserted at the
end of the bullet point. Failing to do so would indicate that there are areas where the County has
predetermined that priority or allowed uses are really not allowed under this designation,
contrary to the SMP Article 7.
Article 5 – This entire section is repetitive/redundant, particularly given the content of Articles 1,
3 and 6. Suggest striking the entire section.
Article 6 –
1-B-3 This article is totally unnecessary and potentially confusing. It appears to make a legal
obligation of Jefferson County discretionary – e.g. vested development. Strike this section.
1-B-5 This article is vague, ambiguous, and potentially confusing. Strike this section.
1-C-1 and 3 These sections can be construed as inconsistent in their present form. #1 suggests
that any activity which impacts existing shoreline processes and functions is prohibited, while #3
clearly indicates that impacts can be mitigated. Please revise accordingly and in conformance
with the remainder of the SMP.
1-D-3-iv This section is facially inconsistent with 1-D-4. Revise, or alternatively, delete 1-D-4.
1-D-23-7 In the first instance, this section is a regulation, not a policy. While #6 encourages
proper management, #7 requires that fallen tree trunks in the buffer may not be removed or
chipped. What is the regulatory definition of a tree trunk? What is the public regulatory purpose
behind this blanket prohibition? Suggest deletion.
1-D-23-8 This section provides unbridled discretion for the “County” to require burdensome
Special Reports (?) without standards. Revise or strike. As to Subsection vi, doesn’t removing
invasive or non-native species always “improve ecological functions and processes”?
1-D-25-B-3 This section is impossible to apply equitably in the absence of specification. What
constitutes “a substantial number”? What constitutes “obstruction? Revise or delete.
Article 8 – 34- Mining
FHM appreciates the consideration that has been given in this draft to its previous comments on
this section. However, further modification is required.
A-2 This article is vague, ambiguous, and incapable of uniform and equitable application.
Further, it specifically conflicts with the declared legislative intent stated in RCW 78.44.010.
Delete.
A-4-i & ii Same comment as above.
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D-3 This section must be deleted in its present form. First, it lacks definition. What is the
meaning of “demand”? What it the meaning of “reasonably”. Secondly, there is no legal
authority for the last phrase of this section.
D-6 Delete. Surface mine reclamation is the sole jurisdiction of the Washington State
Department of Natural Resources per RCW 78.44.050.
Thank you for your consideration and response to these comments,
Sincerely,
James C. Tracy, WSBA #15656
Land Use Counsel, Fred Hill Materials, Inc.
cc David Alvarez, Al Scalf, Phillip Morley
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THE LAW OFFICES OF
JAMES C. TRACY, P.S.
ATTORNEY & COUNSELOR AT LAW
OLYMPIC PEAKS BUILDING
18887 STATE HWY #305 NE - SUITE 500
POULSBO, WA. 98370-7401
Ph: (360) 779-7889 Fax: (360) 779-8197
e-mail: jctesq2002@yahoo.com
January 21, 2009
Michelle McConnell
Shoreline Planner
Jefferson County
In Re: Preliminary Comments on Draft Shoreline Master Program (SMP)
Dear Michelle:
The following are Fred Hill Materials, Inc.’s preliminary comments on the Draft SMP. These
comments are submitted to assist Jefferson County in their attempt to comply with the
requirements of the Shoreline Management Act ( the “SMA” - RCW 90.58) and the Growth
Management Act (the “GMA” - RCW 36.70A).
Article 1 – Section 1
Subsection 1 – This section contains redundancy (No. 1 is wholly redundant to No. 5). In fact,
state policy which is incompletely stated in No. 5 should replace No. 1, since the entire SMP is
implementation of the SMA and requires state approval for adoption. A clear understanding of
enunciated state policy is a critical foundation for the scope and content of the entire SMP. The
entire content of RCW 90.58.020 must be included.
Subsection 2 – This section is wholly redundant and potentially in conflict with the appropriate
statement of state policy and should be deleted.
Article 1 – Section 3
Subsection A – This subsection should reverse the references to the WAC and RCW since the
statute always governs any adopted guidelines.
Subsection E – This subsection need work/revision. It mixes two different concepts = mandatory
regulation and discretionary planning. Any “planning” functions should be described and placed
in separate subsection.
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Subsection F – The SMP is an element of Jefferson County’s Comprehensive plan. As such, the
SMP must be “consistent” with JCCP, not simply “coordinated” and “integrated” with it.
Subsection G6 – This statement may be grounded in WAC 173.26.186 (8)(c), but that section
does not refer to “regulation”. This term should be stricken.
Article 2 – Definitions
The definitions identified below are either vague, ambiguous, “defined” by another vague or
ambiguous term, incomplete, incorrect, contradictory to another “definition”, arbitrary, or some
combination thereof. Without accurate definition, those subject to the definitions are incapable of
determining what is required of them for compliance. These terms should be modified or deleted
from the SMP:
Adequate - This term is vague, defined by another vague/ambiguous term.
Adjacent - This term is vague, defined by another vague/ambiguous term.
Adverse impact – As stated, this definition posits that any impact – however remote or
minimal – falls within its ambit. This is a different standard than SEPA’s “probable
significant adverse impact”. Such a standard would likely be used to require mitigation from
all approved shoreline uses, and be subject to the “materiality” and “proportionality”
requirements of state and federal laws and case law, potentially creating both practical and
legal problems in practice. Further, applying this “no impact” standard to a shoreline
proposal could result in denial of a proposal due to “any” impact that cannot be “mitigated”
due to onsite limitations or inability to perform offsite mitigation. Such a denial would be
contrary to the enunciated state policies for use of the shoreline. Suggest substantial revision
or clarification of this definition.
Agricultural activities – Should include processing and transport of agricultural products
produced on site. Also, suggest addition of AgBMPs, Ag Resource Lands, Ag Warehouse.
Alteration nonconforming structures – It is unclear how internal modifications to a
nonconforming structure would implicate the SMP, particularly if the use of the structure is
unchanged. Please explain or revise accordingly.
Appeal – Suggest insertion of “with standing” after “citizen”.
Channel Migration Zone – This term appears to imply that the SMP has jurisdiction over all
channel migration zones of any type and over an indeterminate time. Please specify the
authority for its inclusion and the parameters for its use in the SMP.
Chemicals – This term appears limited to the categories listed, and thus is too narrow. It also
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appears to be unrestricted as to chemicals that are regulated and controlled versus chemicals
that are illegal or improperly used.
Compatible – This term is vague, defined by another vague/ambiguous term (i.e.
“disharmony”, “disruptive”). Further, it appears that any degree of “disruptiveness” would be
an adequate basis for a determination of “incompatibility”. Such a use of the term, even when
accurately defined, violates the purpose and intent of the statute.
Degrade - This term is vague, defined by another vague/ambiguous term (“desirability”,
“salability”). The term also appears to be unrestricted as to materiality. Such a use of the
term, even when accurately defined, violates the purpose and intent of the statute. Suggest
addition of definition for “development regulation”.
Director – Query: Can the “Director” designate a person to act as “Director”? If what is
meant is a designee to make the determinations required by the SMP, can the designees
determinations be overridden by the Director?
Flood Plain Management – Definition should, the program for floodplain management is
already in existence and adopted by ordinance. What is the program’s relevance in the SMP?
Forest Land – Suggest citation to the source of this definition. Further, suggest addition of
definition of “forest lands of long term commercial significance”.
Noise – Suggest addition of definition for “noise, regulated”, and an indication of how noise
is measured.
Open Record Hearing – Suggest using additional definitions of “closed record appeal” and
“public meeting” as contained in RCW 36.70B.
Ordinary High Water Mark – Suggest using statutory definition at RCW 90.58.030 (2)(b)
Permit Exemption Statement – Please state the definition and authority for the requirement of
such a statement.
Predecision Hearing, Open Record – This definition appears redundant to the “Open Record
Hearing” definition. What is its purpose? Are such hearings held under Jefferson County
UDC procedures?
Preliminary Plat – This definition is incomplete and inconsistent with the definition
contained in RCW 58.17.020 (4).
Resource Lands – Suggest that RCW 36.70A definitions be used.
Substantially Degrade – This term is vague, defined by another vague/ambiguous term.
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Further, the need for and use of the term is unclear. Please revise and explain.
Transportation Facility – Need to add a definition that describes private transportation
facilities under SMP jurisdiction (i.e. marine transport of goods or people). Without such a
definition, such uses are impossible to categorize in these SMP provisions.
Vicinity – Suggest adding “and is materially impacted by a development proposal” at end of
definition.
Article 6 – General Policies and Regulations
A. Policies
1.A.1 Replace “and” with “or” for consistency with RCW 90.58.020. Suggest adding
“that are unmitigated or uncompensated for” after “developments”. Suggest adding “of
Jefferson County shorelines” after “condition” in the second sentence.
1.A.2.iv Redundant. Suggest integration with 1.A.2.i.
B. Regulations
1.B.1&.2 These appear to conflict with the remainder of this subsection.
D.Regulations
1.D.7 This subsection seems to assume that critical areas located in shoreline
jurisdiction could be a basis for extending shoreline buffers outside of shoreline jurisdiction
in violation of the court’s decision in Everett. Please explain or modify.
Article 8 - Use-Specific Policies and Regulations
8.5.A.3 What does “visually compatible” mean? Without specification, this provision is
unconstitutionally vague. (Also, see comment on definition of “compatible”, supra.)
8.5.C.3 What is “objectionable noise”? Unless specified, this term is unconstitutionally
vague. Please indicate statutory or regulatory standard.
8.5.C.4 What is “glare”? Unless specified, this term is unconstitutionally vague. Please
indicate statutory or regulatory standard.
8.6.A.2 Add “materially” or “significantly” before “interfere”.
8.6.A.6 Add “material” or “significant” before “impacts” in first sentence.
8.6.D.4 Delete. Marine transport of people/materials is “per se” water dependant. No
Page 4 of 5
authority or scientific foundation exists for an SMP to treat marine transport of “naturally
occurring materials” as a use any different than marine transport of any other type of
material.
Article 10 – Administration and Enforcement
10.1.B.1.iThe hearing examiner decision on Shoreline Variances and Conditional
Use Permits is essentially to recommend action to the Department of Ecology. (See RCW
90.58.140 (10)). Please revise this statement accordingly to avoid any confusion on the part
of the regulated parties and the public.
10.1.B.1.vii Include “the Jefferson County Comprehensive Plan, UDC, and the Growth
Management Act” after “Program”.
10.1.B.1.viii Specify when any bond required would be released.
10.1.E This Section is incorrect per statute. See RCW 90.58.140 (6)). Please
revise accordingly.
Additional comments and testimony will be added throughout the remaining process to
develop and adopt a revised Shoreline Master Program.
I hope that these comments are helpful to you in that effort.
Sincerely,
James C. Tracy, WSBA #15656
Land Use Counsel
Fred Hill Materials, Inc.
Page 5 of 5
THE LAW OFFICES OF
JAMES C. TRACY, P.S.
ATTORNEY & COUNSELOR AT LAW
OLYMPIC PEAKS BUILDING
18887 STATE HWY #305 NE - SUITE 500
POULSBO, WA. 98370-7401
Ph: (360) 779-7889 Fax: (360) 779-8197
e-mail: jctesq2002@yahoo.com
November 9, 2007
Al Scalf, Director
Department of Planning and Community Development
cc Planning Commission
cc Board of County Commissioners
In Re:CASP PowerPoint Presentation, November 7, 2007, PC CAO Public Hearing
Dear Al et al:
I appreciate the attempt by Staff to brief the Planning Commission and the public on an
important recent Washington Supreme Court Case.
As you know, for several months I have been asking, both at Planning Commission and
BOCC meetings, that a briefing by either the Jefferson County Prosecutor=s Office or a
neutral attorney be conducted on all relevant judicial and Hearings Board Cases which
have occurred since the County=s last consideration and adoption of a CAO. Until last
Wednesdays Planning Commission public hearing on a Draft CAO proposal, no such
briefing was provided despite my repeated requests, including a specific request regarding
the subject case made over seven weeks ago.
Now, belatedly, one week before the PC is scheduled to deliver a recommendation to the
BOCC, Staff have tried, apparently without participation of legal assistance, to provide
instruction/training to the PC regarding only this most recent pronouncement of the State
Supreme Court which is essential to the Planning Commission=s proper understanding of
the task before it.
While this staff effort is laudable, it is clearly too little and too late. In addition, despite
the critical relevance of the briefings requested, there was no effort to link or analyze the
provisions of this case - let alone all of the relevant cases - to any of the content of the
Planning Commission=s proposal. At minimum, this PowerPoint briefing should have
included a complete legal brief of Swinomish Indian Tribal Community and Washington
Environmental Council v. Western Washington Growth Management Hearings Board,
2007 WASC 76339-9 - 091307
.
I do not intend to castigate or embarrass the Director or Staff of DCD who have been
placed in an untenable position essentially because of the prior actions of the Jefferson
County Board of County Commissioners.
These prior BOCC actions include, but are not limited to:
-the execution of a settlement agreement with the Washington
Environmental Council;
-the failure to provide adequate resources and training to staff and the
Planning Commission to complete their tasks in a professional and
defensible manner;
-the replacement of experienced Planning Commissioners with
inexperienced and untrained parties at a critical juncture in the
development process of the CAO;
-the failure of the BOCC to provide adequate (or any) policy direction
which would properly inform the staff and PC regarding the appropriate
handling of the Report of the CAORC, the incorporation of relevant legal
and administrative precedents, the fiscal implications of a CAO
Amendment, or the desired general character, tone, scope and/or nature of
the of the County=s approach to the CAO Amendment.
Literally, both the Planning Commission and the Staff have been left to A twist in the
wind @, left to their own resources and a settlement agreement driven deadline to produce
the defective product now subject to consideration.
Once again, and incorporating the rationale set forth in my previous letter submitted to
the Planning Commission=s record, I urge the Planning Commission and staff to request
that the BOCC again request relief from the arbitrary deadline imposed by the WEC
Settlement Agreement, renew a request for appropriate legal support, identify the
resources necessary, and set forth a reasonable time frame and public participation
process for development of their CAO recommendation.
Sincerely,
James C. Tracy, WSBA #15656
Land Use Counsel
Fred Hill Materials, Inc.
Member, CAORC
THE LAW OFFICES OF
JAMES C. TRACY
ATTORNEY & COUNSELOR AT LAW
OLYMPIC PEAKS BUILDING
18887 STATE HWY #305 NE - SUITE 500
POULSBO, WA. 98370-7401
TEL: (360) 779-7889 E-MAIL : jctesq2002@yahoo.com
FAX: (360) 779-8197
October 31, 2007
Planning Commission
Jefferson County
621 Sheridan Street
Port Townsend, WA 98368
In Re:Proposed Comprehensive Plan Amendment - Critical Areas Ordinance UDC
Amendment
To the Planning Commission:
On behalf of my client, Fred Hill Materials, Inc./Hood Canal Sand and Gravel, an owner
of real property in Jefferson County, these comment on the above referenced proposal are
submitted for the record.
As a preliminary matter, I hereby request that the entire prior record of this matter,
including:
-all records and materials relevant to the Petition for Review by the
Washington Environmental Council on Jefferson County=s failure to
timely adopt required actions on the CAO before the Western Washington
Growth Management Hearings Board since December 2004;
-all records and materials of the proceedings of the Critical Area Ordinance
Review Committee (CAORC);
be included in the formal record of this proceeding and be forwarded to the Board of
County Commissioners with the final recommendation of the Planning Commission.
For the convenience of the Planning Commission (hereafter, A PC @), comments are
listed by and cross referenced specifically to the Application promulgated by Jefferson
County on October 29, 2007.
Page 1, Section
:
4.A Cri tidal Areas @ are not also known as A Environmentally Sensitive Areas @.
This latter term is obsolete, potentially confusing, and not included in the Growth
Management Act (GMA) or the Washington Administrative Code (WAC)
provisions implementing it. This language4 should be stricken from the proposal.
See the proceedings of the CAORC for additional detail.
In addition, the GMA does not define A similar features @ as Critical Areas. See
RCW 36.70A.030(5). If other than GMA critical areas are included in the
proposal/recommendation, the authority for such inclusion must be identified.
Further, Jefferson County is NOT required to incorporate best available science
into the CAO as stated. See Washington State Supreme Court, Swinomish Tribal
Community v. WWGMHB, et al, No. 76339-9, September 13, 2007. All such
statements should be stricken from the proposal/recommendation.
Page 2, Section
-
Article III should be appropriately retiled A Critical Aquifer Recharge Areas @ to
comport with the GMA Critical Area Definitions.
Article V - Inappropriately includes Channel Migration Zones as Geologically
Hazardous Areas with no showing or foundation indicating that these areas are
A hazardous @ within the meaning of the GMA Definition.
Article VI should be retitled A Fish and Wildlife Habitat Conservation Areas @ to
be consistent with the GMA Definition.
There is no requirement in the GMA for enhancement/restoration of Critical
Areas. See Washington State Supreme Court, Swinomish Tribal Community v.
WWGMHB, et al, No. 76339-9, September 13, 2007.
Exhibit A
:
Issue
-
Comments regarding Page 1, No. 4, above, are incorporated herein as though fully
set forth.
Board of County Commissioner Concern
-
The description of the activity of the CAORC is incomplete, misleading, and in
error.
The CAORC membership included both Jefferson County property owners as well as
eminently qualified environmental scientists, professionals and Planning Commissioners.
The recommendations of the CAORC included reports that were adopted by a substantial
majority of the Committee, along with a series of reports that were endorsed by a
minority of the Committee. The majority and minority recommendations included a
proposal for a complete revision of the existing Jefferson County CAO in code form.
These recommendations were forwarded to the PC rather than to a code writer. No code
writer was ever made available to the CAORC.
Department of Community Development Recommendation
-
The statement here begs the question whether the DCD or the Planning
Commission or both will make recommendation to the BOCC in the event of
disagreement between the two as to the final product. If such is the case, that
possibility should be indicated and justified by appropriate authority.
The authority/authorities for the adoption of a CAO should be added or included
as a separate Section/Article. For clarity, the statement should read A as required
by @ rather than A under @ the Growth Management Act.
Article 1
-
Purposes
- generally (sic)
(5) The CAO is not for the purposes of retaining, protecting or using open space
or the natural ecosystem. It is for the A protection @ of GMA Critical Areas. See
Washington State Supreme Court, Swinomish Tribal Community v. WWGMHB,
et al, No. 76339-9, September 13, 2007.
(9) The CAO does not regulate or provide a program for controlling storm water
runoff.
(14) The CAO is not targeted to or focused upon the general preservation and/or
the enhancement of the environment. See (5), above.
Administrative Provisions
-
Applicability
-
The meaning of the second sentence is vague, ambiguous, and virtually incapable
of administrative implementation. Unless this provision is specified/clarified, it
should be removed.
Identification and mapping of critical areas
-
Replace A is @ with A are @ in first sentence. (Grammar)
Allowable uses
-
Since the CAO regulates uses and activities only within Critical Areas, the
statement is both redundant and irrelevant.
Coverage
-
This Section is essentially redundant given the content of Applicability, above. To
the extent it is retained it should be combined with that provision. JCC 18.22.230
is not an exemption section. At present, JCC 18.22.240 is the exemption section
for FWHCAs. All exemptions should be integrated into a single exemptions
section rather than within individual critical area sections.
Further, the CAO regulates ALL uses and activities within Critical Areas whether
or not they have A adverse impacts @ (itself an ambiguous term).
The potential conflict between this Section and proposed JCC 18.22.300(4)
should be examined and clarified.
The enforcement, appeal, and penalty provisions applicable to 18.22.050 (2)
should be stated.
General Exceptions
-
This provision is alarming for several reasons. First, it contains two different
A standards @ for the Administrator=s decision. Secondly, it does not present a
process for requesting or applying for such an A exception @. Third, it appears to
overlap or be redundant with code provisions for buffer averaging/buffer
reduction. Fourth, the section seems to provide unfettered discretion to the
Administrator to grant or deny exceptions without a A special report @ based
solely on the Administrator=s judgment.
Because of these problems, and the fact that the procedure is rarely if ever used,
the provision should be stricken from the proposal.
General Exemptions
-
All CAO Exemptions should be contained is a single comprehensive Section.
(8) All work within the ordinary high water mark requires HPA approval by
WSDFW. The provision requiring notice to WDFW is not only illogical when
applied to A emergency actions @, it is facially inconsistent with RCW 77.55.021
(8).
(13) This exemption needs to be reconciled with 18.22.320 (1)(a) which could be
interpreted to prevent changes in existing improved areas. As an alternative, (12)
could be deleted as the PC approved for 18.22.240 (3).
Reasonable Economic Use Variance
-
This Section, as proposed, presents one of the most egregious infringements on
the constitutionally protected rights of property owners who are damaged as a
result of the adoption of the CAO - i.e. those property owners who have been
deprived of the reasonable economic use of their parcel due to county action.
In Summary, this section is fundamentally unfair as it would place the burden for
both the proof of constitutional violation (depriving reasonable economic use) and
also the solution required to prevent a constitutional takings claim on the property
owner, create an onerous and expensive process for the property owner seeking
simply to construct a residence on appropriately zoned property, utilize impossible
required findings for approval, and create the need for judicial remedy for
damages when a taking is shown.
The CAORC unanimously adopted the following statement (Foundational
Principle)regarding this issue:
10. Regulations adopted by Jefferson County should contain a specific
definition of A reasonable economic use @ in each land use and zoning
designation. Further, a
A reasonable economic use exception @ should be provided which is
available to an
affected property owner who can demonstrate to the satisfaction of the
Administrator that the application of the ordinance prevents the use of the
property for the defined A reasonable economic use @ (i.e. without
requirement to exhaust any other administrative remedy before seeking a
A reasonable use exception @). The fee for a A reasonable use exception @
application should be minimal, and once the applicant demonstrates that
such an exception is necessary, additional processing and/or hearing costs
should be borne by the public. The citizens of Jefferson County should not
have to pay for the privilege or be financially penalized if they successfully
demonstrate (in an application for a A reasonable use exception @ or in a
final judicial decision) that regulations cause them undue harm or violate
their constitutional rights.
Implementing this Foundational Principle, the CAORC Committee adopted the
following recommendation for replacement of the current CAO:
A F. Reasonable Economic Use Exception - Single Family Residence on
Existing Lots.
This section applies to new single family residences on existing, legal lots where
application of this Chapter would preclude reasonable economic use. The Administrator
may modify or waive the requirements pertaining to critical areas, including mitigation
and buffer requirements, if he or she finds all of the following:
1. The proposal is the minimum necessary to accommodate the
principal residence access and necessary appurtenances including,
if necessary, well site, septic system and drainfield utilities,
provided that the foundation of the principal residence and any
accessory structures shall not exceed 2,800 square feet.
2. The building footprint, access and utilities are located so as to
have the least impact on the critical area and its buffer.
3. The proposal does not degrade the functions of wetlands and
streams beyond that needed to achieve a reasonable use.
4. Material adverse impacts resulting from alterations of steep or
geologically hazardous slopes are minimized.
5. The proposal includes on-site mitigation required by this
Chapter to the extent possible, while allowing a reasonable use.
6. Disturbed critical areas and their buffers will be immediately
restored consistent with good restoration practices.
7. This alteration does not allow wetlands or fish and wildlife
habitat conservation areas or their buffers to be converted to lawn
or residential landscaping.
The Administrator=s decision on a Reasonable Economic Use Exception
may be appealed to the Examiner only by the applicant.
G. Reasonable Economic Use Exception - General.
This ordinance is not intended to preclude reasonable economic use of
property as that term is defined herein. Once an applicant has proven to the
satisfaction of the Examiner that strict application of the critical areas
standards will deny reasonable economic use of the parcel, development
with conditions will be permitted if the Examiner finds each of the
following:
1. There is no other reasonable economic use or reasonably feasible
alternative to the proposed development with less impact on the
critical area; and
2. The proposed development does not pose a material threat to
public health, safety and welfare on or off the subject property; and
3. Any alterations permitted pursuant to the requirements of this
Chapter shall be the minimum necessary to allow for reasonable
use of the property; and
4. The inability of the applicant to derive reasonable economic use
of the property is not the result of actions by the applicant in
subdividing the property or adjusting a boundary line, thereby
creating the undevelopable condition after (INSERT DATE OF
ADOPTION) (wetlands) or (INSERT DATE OF ADOPTION)
(other critical areas); and
5. The proposal mitigates the material impacts on the critical area
(s) to the extent reasonably possible, while still allowing
reasonable economic use of the parcel.
The Administrator shall prepare or have prepared, at County expense, a
report based on the applicant=s development proposal which shall
accompany a reasonable use exception petition to the Examiner and which
provides information on the function and value of the critical area(s)
proposed for alteration, impact of the proposed development on the critical
area(s) and any required buffer(s), what constitutes a reasonable economic
use of the property, steps taken to minimize the impact of the proposed
alteration, recommended modifications of the code, and any other
information deemed necessary by the Administrator and/or Examiner.
An applicant for a reasonable economic use petition shall be the only party
with standing to appeal the Examiner=s decision.@
This CAORC recommendation rectifies the defects of the proposed continuation
of the existing A reasonable Economic Use Variance (now retitled A Exception @)
to differentiate it from a zoning variance to avoid confusion and allow for the
unique findings required for this constitutional issue versus non-
constitutional/volitional variance applications), and placing the costs and burdens
for takings avoidance on the government actor where is belongs. The
recommended procedure also avoids the necessity of a judicial damage claim
against the County when deprivation of constitutional rights are proven. This
CAORC recommendation should be adopted or be the basis for developing a
similarly effective and fair recommendation by the PC to the BOCC.
Section 18.18.090 (5)(ii) is inconsistent with Washington State Supreme Court,
Swinomish Tribal Community v. WWGMHB, et al, No. 76339-9.
Article V - Geologically Hazardous Areas
-
The CAORC engaged in extensive analysis and discussion regarding whether
Channel Migration Zones were to be included as regulated critical areas.
After extensive study, the CAORC CMZ Subcommittee presented its report on 1-
4-07, finding no statutory or administrative requirement for inclusion of CMZs as
critical areas.
Further, CAORC Member Bill Wheeler produced an excellent and exhaustive
summary of the entire record of Committee discussion on this topic (dated 4-30-
07), including analysis of applicable statutes and the CAORC=s final action on the
matter. Due to their extensive length, each of these documents are incorporated
herein as though full set forth. For the reasons set forth is these documents, I
recommend that the current proposal for inclusion of CMZs as Geological
Hazardous Areas be stricken. Inclusion as proposed was first argued as justified by
a minority groups of CAORC members. My recommendation that CMZs not be
included as critical areas also extends to the alternative and subsequent proposal by
this same minority of CAORC members to include CMZs as FWHCAs.
Should the PC refuse to accept the recommendation of the CAORC on this issue, its
final recommendation should indicate the statutory or administrative authority for
same, its reasons for rejecting the CAORC recommendation, and a justification for
recommending the additional administrative costs (and their source) which will be
necessary to administer their proposal.
Article VI - Fish and Wildlife Habitat Conservation Areas (FWHCAs)
-
There are no valid reasons for having a separate purpose section for FWHCAs. Any
statements that are not redundant and are consistent with the protection of CAs
should be incorporated into the Purpose Section at the head of the proposed
ordinance.
Any purpose statement related to a general obligation to provide global protection
to any wildlife should be stricken. Such statements improperly extend the intended
reach of the mandate to protect FWHCAs, and are therefore beyond the appropriate
scope of a CAO adopted pursuant to the GMA.
Proposed 18.22.100 (1) is both inaccurate and redundant. It should be stricken.
Serious question exists whether the CAO, per se, has any authority to regulate areas
below the ordinary high water mark. These areas are subject to regulation under the
Shoreline Master Program, regulated separately but at least equivalently to any such
designated critical areas under the County=s CAO, pursuant to RCW 36. 70A.480.
Relevant limitations to regulations of critical areas below the ordinary high water
mark must be included if such areas are incorporated into the PC proposal.
Any non-redundant provisions of 18.22.240 should be incorporated into the General
Exemption Section of the PC proposal.
Section 18.22.250(1) is preempted by or redundant to RCW77.55.021.
Section 18.22.250(2) should be incorporated into a section which relates all CAs
and CAO provisions into the Subdivision Code. There is no logical or statutory
reason for creating a subdivision requirement for FWHCAs and not applying the
same provisions to subdivisions containing any other critical area.
Section 18.22.250(3) should be combined and made consistent with the Utility
Exemption at 18.22.070(5).
Section 18.22.250(6) is a general statement that should be moved to the General
Exemption Section of the proposal.
Section 18.22.260 contains provisions that are generally applicable to all CAs.
Section 18.22.270 (1) through (4) are applicable to all CAs, and to the extent they are
retained should be moved to a section on general protection standards. Does this section
imply that any proposal would require drainage and grading plans regardless of the
amount of impervious surface created or earth moved? If so, this should be clearly stated.
Section 18.22.270 (5) (ii) is general and applies to all CAs. This subsection should be
moved to a general Building Setback Line section.
Section 18.22.270 (5) (b) (i) is vague in that the term A dense @ is without definition.
Further, the A presumption @ stated is directly contradictory to the recent judicial
definition of A protect as applied to critical areas under the GMA. See Washington State
Supreme Court, Swinomish Tribal Community v. WWGMHB, et al, No. 76339-9,
September 13, 2007.
Section 18.22.270 (5) (b) (ii) is redundant over prior sections and should be deleted.
Further, this subsection contains an incomplete allusion to the CAORC recommendation
regarding A Physically Isolated Buffers @ which are general and should be contained in a
separate section. The specific recommendation of the CAORC is as follows:
H. Physically Separated and Functionally Isolated Buffers
Areas which are both physically separated and functionally isolated from a
critical area and do not protect the critical area from adverse impacts due
to existing public roads, structures, vertical separation, or any other
relevant physical characteristic shall be excluded from buffers otherwise
required by this Chapter. The Administrator may require a Biological Site
Assessment to determine whether the buffer is functionally isolated.
The scientific bases for the buffer width recommendations contained in Section
18.22.270 (1) - Stream Buffers, and the analyses required for balancing these bases
with the other goals and policies of the GMA must be identified in order to support
the PC proposal.
Section 18.22.270 (5) (c) does not contain the appropriate A balancing test @ for
determining buffers. As stated, this subsection must require the appropriate
balancing on order to support the exercise of the Administrator=s discretion.
Table 18.22.270 (2) contains buffer prescriptions for areas over which the CAO
does not have jurisdiction - i.e. shellfish areas, kelp and eel grass areas and
spawning areas. Further, the scientific bases for the buffer width recommendations
and the analyses required for balancing these bases with the other goals and policies
of the GMA must be identified in order to support the PC proposal.
The buffer reduction and averaging provisions at 18.22.270 (6) and (7) are of
general applicability and should be contained in their own separate sections.
Further, the scientific bases for the buffer width averaging/ reduction
recommendations and the analyses required for balancing these bases with the other
goals and policies of the GMA must be identified in order to support the PC
proposal.
What is the intent of the A permanent physical separation @ stated in 18.22.270 (8)
(a)? Without such specification the Administrator has no guidance for
application/administration/enforcement of this provision. Further, the PC should
identify the source of funding for the administration and enforcement (including
applicable penalty for violation) of this provision.
Section 18.22.270 (8) (c) is of general application and should be relocated to a stand
alone section regarding the application of the CAO to existing law and rules (i.e. the
subdivision code).
Section 18.22.280 (1) is of general application and should be relocated to the
appropriate general section.
Section 18.22.280 (2) is general and should be relocated to the appropriate general
section. Further, the appropriate balancing test should be added for consistency with
the Washington State Supreme Court, Swinomish Tribal Community v.
WWGMHB, et al, No. 76339-9, September 13, 2007.
Article VII - Wetlands -
There are no valid reasons for having a separate purpose section for wetlands. Any
statements that are not redundant and are consistent with the protection of CAs
should be incorporated into the Purpose Section at the head of the proposed
ordinance.
Section 18.22.200 is of general application and should be deleted here. This section
should be included in the general administrative provisions.
Generally, this entire section contains obvious redundancy which should be
stricken. The comments regarding the FWHCA, above, pertain equally to the same
content of the proposed wetland section. These are incorporated herein by reference
as though fully set forth in order to reduce comment repetition.
Article VIII - Special Reports -
Section 18.22.380 should be revised to reflect those situations (e.g. reasonable use
exceptions) when the cost of a special report are not to be borne by the applicant.
Section 18.22.390 (3) is an excellent example of a general provision but should
clearly specify/indicate who has standing to appeal the Administrator=s decision
and the time frame/process which would allow resolution of an appeal of the
Administrator=s decision in a timely manner before any other decision on the
project/application.
Section 18.22.550 (2) does not pertain to Waiver and should be in a Section of its
own.
EXHIBIT C -
b.This section is woefully inadequate since it does not present/explain the
significance of judicial decisions on relevant matters that have occurred
since the adoption of the last CAO. This comment is not intended to
provide an exhaustive review of such cases. When Jefferson County
completes this essential review, additional comments will be provided.
The statement that information sources are provided for identifying critical
areas is inaccurate and potentially misleading. None of the maps cited as
sources are regulatory and require site specific analysis for identification
of critical areas. This section should be revised to so indicate.
c.This section abjectly fails to note that the public input on the initial CAO
proposal was overwhelmingly negative and did not reflect widely held
citizen values. Nor does this section indicate that the A Settlement
Agreement @ with the Washington Environmental Council was not
subject to public participation, has been characterized by the BOCC as a
non-binding starting point for CAO revision, and was considered by the
CAORC but was not considered determinative of the CAORC
recommendations.
This section does not indicate the unanimous determination by the
CAORC that the CAO should be comprehensively revised and designed as
a stand alone section of the Jefferson County Code.
This section does not indicate the substance of and the process by which
the CAORC recommendations were determined inadequate/not followed
and either the minority reports of the CAORC or the PC=s own
determinations were substituted.
The statement that implies that the fact that THIS Planning Commission,
appointed by THIS BOCC represents the citizen=s of Jefferson County is
both a naked conclusion and non-responsive to the questions asked. Either
explain and justify this statement or delete it.
In general, this Appendix should be expanded to include the balancing
analyses required by the Washington State Supreme Court, in Swinomish
Tribal Community v. WWGMHB, et al, No. 76339-9, September 13,
2007, and the previous line of cases on the requirements for supporting
policies and regulations adopted under the authority of the GMA.
THE LAW OFFICES OF
JAMES C. TRACY, P.S.
ATTORNEY & COUNSELOR AT LAW
OLYMPIC PEAKS BUILDING
21106 President Point Rd. NE
Kingston, WA 98346
Tel: (360) 779-7889 Cell : (360) 731-4550
November 2, 2010
Delivered via e-mail to: jeff.stewart@ecy.wa.gov
Department of Ecology
State of Washington
PO Box 47775
Olympia, WA 98504
Attn: Jeffree Stewart
Dear Mr. Stewart:
This letter and its attachments comprise comments on the Shoreline Master Program (SMP)
“locally approved”/adopted by Jefferson County and subject to the Department of Ecology’s
(DOE) comment period ending May 11, 2010. The subject matter of these comments includes
input regarding the Jefferson County Critical Area Ordinance (CAO), adopted by reference in the
locally adopted SMP, and incorporates by reference my previous comments submitted to
Jefferson County during the SMP and CAO development processes.
As a threshold matter, several issues of procedural irregularity regarding the local adoption of the
SMP should be addressed by DOE prior to any further consideration of the document by the
State of Washington.
First, Jefferson County held its public hearing on TWO proposals before it, without a specific
proposed action and without a recommendation on a single proposal as required by Jefferson
County Code and RCW 36.70.030. Please see the attached letter of September 8, 2009, for a
detailed foundation and analysis of this factual matter. In summary, the procedure utilized by
Jefferson County to hold a public hearing was not only statutorily infirm, it was only made clear
to the reviewing/commenting public which was the actual proposal being heard at the hearing
itself, depriving non-attending public of accurate information and failing to prepare the attending
public for meaningful participation/comment.
Second, further compounding the procedural and statutory impropriety demonstrated above, in
their post-hearing “deliberations” the Jefferson County Board of Commissioners (BOCC)
considered no less than five separate “pick lists” which identified voluminous “issues” and made
material changes to the proposed document(s). (See Jefferson County SMP website for these
1
“pick lists”, incorporated by reference as though fully included here.) A public hearing on the
BOCC final proposed SMP, essentially a new proposal by the BOCC, was never held by
Jefferson County nor was a recommendation from the Planning agency issued, in further
violation of RCW 36.70.030 and WAC 173-26-100.
In sum, since DOE has before it a proposed SMP enactment which was not subject to meaningful
public participation and was not properly “adopted” by the local government, it should not
proceed with its responsibilities under RCW 90.58.090 until such time as it does.
Further, Jefferson County has never held a public hearing on a proposed SMP which included all
the SMP’s required components.
For example, the Integration and Consistency components of the proposed SMP (dated in 2006)
are based on either incomplete or obsolete information which does not reflect current case law,
statutory or administrative code provisions. Nor do these documents include consideration of the
then pending Pope Resources/Hood Canal Sand and Gravel (Now Thorndyke Resource) marine
transportation application (aka “Pit-to-Pier”) in specific non-compliance with the requirements of
RCW 90.58.100. The Integration and Consistency Reports are actually based on Jefferson
County’s Draft 2000 SMP. (See, Exhibits B and C, Consistency and Integration Reports,
Adolphson Associates Inc., 2006, Jefferson County SMP website.)
The Cumulative Impact Analysis (required by DOE’s SMP Grant), in either final draft or final
form, was not available for public review when the SMP was “locally approved”. (See, Jefferson
County SMP website.) This cumulative impact analysis completely omits discussion of the
Thorndyke Resource (formerly Pope Resources/Hood Canal Sand and Gravel) marine
transportation application pending at the time of the draft report’s publication (See requirements
in RCW 90.58.100), completely omits discussion of non-residential uses permitted as conditional
uses in Residential and Conservancy SEDs, and contains factually inaccurate information
regarding the then applicable Mineral Resource Land Overlay (MRLO). In fact, none of these
documents reflected the accurate content of the SMP as “locally adopted by the BOCC. The state
should not proceed with further review of a Jefferson County “locally adopted” SMP until these
deficiencies are rectified. When rectified, the DOE should hold a hearing on the complete SMP
submission by Jefferson County.
Jefferson County has not complied with the requirements of RCW 36.70A.040 which requires
internal consistency between the SMP and the Jefferson County Comprehensive Plan, or with the
requirements of WAC 173-26-201(2) (a) for adequate scientific/technical foundation of amended
SMP provisions. For example, the proposed SMP proposes to outright ban water dependent uses
(industrial piers of a certain type) which are specifically allowed as conditional uses in the JCCP
and Unified Development Code (UDC) and specifically identified by RCW 90.58 as priority
uses.
Nor has Jefferson County provided a meaningful analysis of the constitutional issues raised by
the proposed SMP, particularly in light of recent case law at the state and federal judicial levels.
Jefferson County has posited a conclusory, “illustrative only” and on its face “brief and general”
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analysis which fails to substantively address any of the specific provisions of the proposed SMP
that have been challenged in the drafting/review process as having potential constitutional
infirmities. Some of the questions answered in the document completely lack legal
citation/foundation. For example, individual property restrictions (standard buffer requirements
of 150 feet) are applied on a “landscape” basis without consideration of the “nexus and
proportionality” requirements of state and federal case law. (Applicable citations omitted.) The
various proposed SMP provisions challenged on the basis of their constitutional
propriety/legitimacy are established in the record are not exhaustively detailed here, but rather
are incorporated by reference from the record (from both the SMP and CAO local adoption
processes) as though fully set forth herein. Jefferson County cites the AG Report of 2006, but
none of the annual updates of this report required by RCW 36.70A.370 (1). Further, the limited
discussion presented in the “Legal Review on Takings” is (apparently) dated/cited as Feb. 2010
on the County website (no date included on the document itself), long after “local adoption” of
the SMP. A seeming afterthought, this document states that DOE “doesn’t seem to mandate the
use of that (AG) memo”, despite the clear requirement to the contrary in RCW 36.70A.370 (2).
This document refers vaguely to “the listed sections of the LA-SMP where constitutional
considerations and limitations are either reflected or discussed” without specific references,
leaving it to the reviewer to peruse the document for any additional meaningful
information/analysis. This reviewer is unable to find any constitutional analysis contained in the
“locally adopted” SMP other that the generic restatement of RCW 36.70A.020 (6) included at
Article I (3) (D). Please advise if this is in error. This “Legal Review on Takings” is clearly
inadequate to give either the public or decision makers an adequate foundation to analyze and/or
determine compliance with RCW 36.70A.020 (6).
Finally, Jefferson County has not complied with WAC 173-26-186 (5) which (inter alia) requires
(unless there is a compelling reason to the contrary), that the proposed SMP be consistent with
the requirements of RCW 82.02. This issue highlights the fact that the proposed SMP utilizes a
definition of “should” that is facially inconsistent with the applicable definition contained in
WAC 173-26-020 (32), and therefore is improperly applied/understood (by both decision makers
and the commenting public) throughout the entire document and its local review process.
The locally approved SMP incorporates by reference the Jefferson County Critical Areas
Ordinance (JCCAO). (See Appendix B, Locally Approved Jefferson County SMP.) As a result,
the contents of the JCCAO are subject to DOE review (as a new “significant legislative rule”
pursuant to WAC 173-26-186) as part of the SMP review process. This fact was never
announced or considered - neither by Jefferson County nor by DOE - in the notices for the public
hearings or in the introductory remarks by DOE Staff at the public hearing. Thus the public was
deprived of an opportunity to comment on the JCCAO and its incorporation in the proposed
SMP.
Specifically, and in supplement to the plethora of CAO contested issues specified in the JCCAO
adoption record which were not considered by the county in local adoption of the SMP,
incorporation of the JCCAO into the SMP is improper/infirm because:
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1. The Reasonable Economic Use Variance, CAO Section 18.22.090, violates RCW
36.70A.020 (6) because it:
A. Fails to contain a definition of Reasonable Economic Use;
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B. Improperly shifts the burden of defining a Reasonable Economic Use to
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the party who has suffered damage or taking of their state and federal
constitutional property rights;
C. Improperly denominates the procedure described as a Variance;
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D. Improperly places inordinate financial burdens on a damaged party to seek
redress for harm to or deprivation of their state and federal constitutional
property rights;
E. Improperly allows standing to parties lacking standing to determine the
nature and scope of protected state and federal constitutional property
rights;
F. Improperly incorporating decision criteria which are arbitrary, vague,
redundant, incapable of determination and impossible for the damaged
party to achieve;
G. Improperly incorporating mitigating conditions which would unreasonably
and inappropriately burden a party whose protected state and federal
constitutional property rights have been damaged by the action of the
County.
2. The CAO and the adopting ordinance fail to set forth the balancing of the Goals
of the GMA required by the statute and Washington case law.
3. The Findings of Fact and Conclusions of Law adopted by the Board of County
Commissioners do not demonstrate and substantiate their grounding in substantial
evidence, analysis, nexus and proportionality required by the statute and
Washington case law. Contested Findings of Fact and Conclusions of Law
include, but are not limited to, Nos. 12, 15-64, 89, 90, 105, 130. 140, 142-146,
148-152, 155 and 156.
4. CAO Section 18.22.095 grants an improper/impermissible delegation of authority
to the Administrator by granting the ability, based on the Administrators opinion,
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to determine whether a Biological Assessment shall be required for determination
of a functionally isolated buffer.
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5. CAO Section 18.22.550 grants an improper/impermissible delegation of authority
to the Administrator by granting the ability to determine whether portions of the
requirements of the CAO may be waived without preparation of an approved
Critical Area Stewardship Plan.
Finally, I request that DOE answer several of the questions I asked at the “public hearing”, in
writing, at their earliest opportunity. These questions include:
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1.Is “local adoption” required before the DOE will proceed with an action to
approve a Jefferson County SMP? In other words, does DOE contemplate
“adopting a SMP without local approval pursuant to RCW 90.58.090 or other
authority?
2.Will comments/questions received in the SMP review process thus far be
answered by either DOE or Jefferson County prior to any action on a Jefferson
County SMP?
3.Will State level legal review of any proposed Jefferson County SMP be available
for review prior to any DOE action on same?
4.Will Jefferson County/DOE compliance with the requirements of RCW
90.50.340, RCW 36.70A.480 and RCW 34.05.328 (1) (h) be available for public
review either before the next hearing on a Jefferson County SMP or any DOE
action regarding same?
I am available to further discuss and/or analyze the infirmities of the locally approved JCSMP at
your convenience. I firmly believe that now is the time for resolution of these infirmities, rather
than deferring their resolution to the judicial process. Such would be a terrible waste of both
temporal and financial resources of both the public and the government, particularly since there
has been no showing that the shorelines of Jefferson County are either severely threatened in the
near term or that the existing JCSMP is materially defective for purposes of achieving the
objectives of the Growth Management Act or the Shoreline Management Act.
For the reasons stated herein and in the attachments to this letter, DOE should immediately
“deny approval at this time and work with Jefferson County on bringing the program into
compliance with all applicable laws and rules”. For its part, DOE should be prepared to comply
with the requirements of state law and administrative code when next Jefferson County submits
an appropriate “Locally Adopted SMP” for their review.
Sincerely,
James C. Tracy, WSBA #15656
Land Use Counsel
Thorndyke Resource, Fred Hill Materials, Inc.
Attachments (included in e-mail submittal)
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