HomeMy WebLinkAbout46 2017-04-28VN r*,-,JEFFERSON COUNTY
DEPARTMENT OF COMMUNITY DEVELOPMENT
621 Sheridan Street,Port Townsend,WA 98368 I Web:www.co.iefferson.wa.ustcommunitydevelopment1111
y, t',1`,. Tel:360.379.4450 I Fax:360.379.4451 i Email:dcd@co.iefferson.wa.us
Resource Center I Building Permits 8 Inspections i Development Review I Long Range Planning
April 28, 2017
Brad Nelson
BDN, LLC
3011 S. Chandler St.
Tacoma, Washington, 98409
Robert M. Smith
Plauche& Can, LLP
811 First Avenue, Suite 630
Suite 630
Seattle, Washington 98104
RE: BDN Shine Road Geoduck Aquaculture Farm—Shoreline Conditional Use Permit
Requirement—Code Interpretation
Dear Mr. Nelson and Mr. Smith:
This letter responds in part to Mr. Smith's letter to me and David Greetham dated April 26, 2017.
As director of Community Development, I am the "administrator" who is responsible for Unified
Development Code interpretations under the Jefferson County Code(JCC), Article VI. Please
accept this letter as a final determination that a shoreline permit is required for any geoduck
farming operations that were not already underway as of February 21, 2014 or have been
expanded impermissibly since February 21, 2014. A background discussion of the history of the
BDN LLC prior operations and its JARPAs is contained in the April 21, 2017 letter to you from
David Greetham of the Jefferson County Department of Community Development(DCI)).
Name of the Applicant: BDN LLC
Description of the Subject Proposal:
BDN LLC Shine Road Geoduck Aquaculture Farm, including the following parcels:
Parcel Tract Name
721031007 Smersh
821334011 BDN
i
821334073 BDN—formerly Washington Shellfish
i.fir- I T- ,
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Parcel Tract Name
821334074 Garten
821334075 Garten
821334076 Garten
821334078 Tjemsland
821334079 BDN—formerly Mocean
DCD understands that new geoduck aquaculture operations are proposed by BDN for the
Smersh, Garten and Tjemsland parcels. However, a claim has been made by local residents that
the parcels owned by BDN impermissibly have been expanded since the SMP was approved.
Language of the Provisions of This Code Subject to Interpretation:
JCC Section 18.25, the Shoreline Master Program.
Explanation of Administrator's Interpretation:
Before the Washington Supreme Court's 2016 decision in Snohomish County vs. Pollution
Control Hearings Board,DCD's interpretation was that the SMP requirements did not apply to
the BDN's JARPAs submitted prior to the SMP's approval based on Washington's vested rights
doctrine.
Since the Snohomish County decision,we have reconsidered the circumstances applicable to this
activity. We have determined that the vested rights doctrine does not apply to permits required
by the SMP, even ifthe JARPAs provided to the County in 2013 were complete. By statute, the
Washington vested rights doctrine applies only to building permits, subdivision applications, and
development agreements filed with a local jurisdiction such as a county or municipality. One of
the cases cited in Mr. Smith's letter makes that clear. See the Washington Supreme Court's 2016
decision in Snohomish County, page 358. BDN never filed a building permit, subdivision
application, or development agreement with the County. In addition, a building permit,
subdivision application, or development agreement cannot be obtained with a JARPA
application.
BDN's only submissions to the County were the JARPAs it sent to the County in 2013. JARPA
applications can be used to obtain permits under the County's SMP, but that is not what BDN's
JARPAs requested. JARPAs filed before the SMP was approved on February 21, 2014 do not
provide a basis for failing to comply with the requirements of the SMP. That is because changes
in the SMP were mandated by the Washington Legislature in the Shoreline Management Act and
the Washington Department of Ecology in the guidelines it promulgated pursuant to the
Shoreline Management Act. In other words, JARPA applications filed before the SMP are not
subject to Washington's vested rights doctrine. An application for a permit under the SMP is
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required, even though the SMP was approved after BDN's 2013 JARPAs were provided to the
County.
The County will apply all the SMP requirements and in particular, those for aquaculture
contained in the JCC 18.25.440. The County understands that"Aquaculture is a preferred,
water-dependent use of regional and statewide interest that is important to the long-term
economic viability, cultural heritage and environmental health of Jefferson County." JCC18.24.440(a). Under the SMP, even in Shoreline Residential areas, "Geoduck aquaculture maybeallowedwithaconditionalusepermit(C(d))." JCC 18.24.440(e). Under the SMP, the
County has the authority to require BDN"to prepare special studies, assessments and analyses as
necessary to identify and address cumulative impacts including, but not limited to, impacts onfishandwildlifehabitat, public access/use, aesthetics, and other shoreline attributes." JCC
18.25.440(3)(b).
BDN and Mr. Smith have made clear that there is no desire to begin the submittal process for a
shoreline conditional use permit as outlined in DCD's April 21, 2017 letter, but will not begin
any new aquaculture activities,pending a resolution of the legal issues involved via settlement orfinallegaldetermination.
Appeal Rights:
You have the right to appeal pursuant to JCC Section 18.40.390 to the hearing examiner within14calendardaysusingtheprocessforappealsofTypeIIpermitdecisionsassetforthinJCC
Section 18.40.330. However, you must pay the applicable fee at the time of filing the appeal.
If you have any questions or need additional information,please let us know. We look forward
to working with you during the permitting process.
Sincerely,
f -
Patty Charnas
DCD Director
Cc: DCD Planning Manager
Chief Civil DPA
County Administrator
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