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HomeMy WebLinkAboutJeffco Commissoner letter 26 July 2017.pdf27 July 2017 Kate Dean, County Commisioner District 1 David Sullivan, County Commisioner District 2 Kathleen Kler, County Commisioner District 3 Philip Morley, County Administrator Dear County Commisioners and County Administrator, This letter is a follow-up from testimony I provided at the hearing on 27 June 2017 in Port Townsend. It reflects the understanding and concerns of many Marrowstone Island residents (and voters) regarding the proposed marijuana factory on Marrowstone. It has been sent to Mr. Causseaux. We want you to be aware as well of the growing public concerns. There is an old saying in business that if you start to smile or laugh when someone proposes a deal to you, you should avoid it. If it sounds too good to be true, most often it is. It’s called the straight face test. And it is a good example of common sense in action. Right now in Jefferson County an important development proposal is nearing approval that fails the straight face test. It’s the proposal, by a Seattle marijuana entrepreneur, to build a giant industrial marijuana factory on Marrowstone Island in an area zoned rural residential AND to exempt the development from environmental review along the way. If it is approved, the development will destroy much of what makes Marrowstone unique and livable and create great risk to the island’s environment and water supply. Of broader importance, it will establish a precedent for industrial development of rural residential areas in the county. And, as demonstrated below, it will set a new, low standard for twisted and erroneous application of state and county codes in the service of out-of-county commercial interests while relying on misrepresentations of material facts to justify the approval. Before I continue, let me state that opposition to the marijuana factory is not opposition to legalization of marijuana in disguise. The people of Marrowstone share the broadly liberal outlook of most in Jefferson County. Island residents are, after all, frequently referred to as Marrowstoners! But in Jefferson County liberal doesn’t equate to lawlessness, though it’s easy to imagine how someone from Seattle might be confused on that point. Here are the highlights of the failed straight face test. The first of the many fictions employed to explain and justify this industrial development on Marrowstone is that it is farming, just like many other family businesses on the island. Further, the claim is made that the enormous building (10,080 sq. ft. for just the main building) is similar to others on the island. But this is false on both counts. Legally, indoor marijuana production and processing is regarded by the state as manufacturing, not farming. Regarding the building’s size and purpose being similar to others on the island, that’s simply not true; there is no other building of that size on the island, nothing even close. Certainly there is no other industrial operation on the island, and there never has been. In order to allow large industrial facilities and operations in rural residential areas, the county has to grant a “conditional use permit”. To justify such a permit a determination must be made that the facility and business meet twelve conditions. Among the twelve conditions are the need to be consistent with character of existing development in the area, to have access to adequate services such as fire protection and law enforcement, not to be detrimental to nearby properties, and to not be the source of unreasonable odors, fumes, and noise, etc. The claim that the proposed factory is compliant with these requirements is ridiculous. As stated earlier, there is nothing remotely resembling this factory on Marrowstone. The island has very limited fire and police services; response times out here are often 30 minutes or more. Senior members of the Sheriff’s and Fire Marshall’s offices have told islanders that Marrowstone is no place for such an operation. Nearby properties have had sales agreements withdrawn once the nature of the potential neighbor has been discovered. And land values in the area have already taken a hit. All told, the proposed factory plainly violates at least nine, if not eleven, of the requirements for conditional use permits. To claim otherwise is to ignore the common meaning of language, to ignore even the most obvious facts about Marrowstone, and to ignore the broad experience in the county regarding the odors and noise of marijuana factories. Another claim supporting the conditional use permit is that the commercial operation is a “cottage industry”. County code plainly defines cottage industries as “subordinate to the residence”. It also limits their size (to 5,000 sq. ft.) and doesn’t allow them to be the source of adverse impact to the environment and rural character of the location. County code also requires the owner to reside on site and limits the total workforce to four people who don’t reside there, among other criteria. The misrepresentations deployed in the attempt to support this claim are stunning. We are told that a 10,080 sq. ft. building “kit”, designed as complete, fully integrated marijuana growing and processing facility, is accessory to a 1,800 sq. ft. house that no one has lived in since the property was purchased nearly a year ago. If it really were a residence, wouldn’t the owner have moved in by now? And what about the economics of the development? The estimated price of the kit and equipment is estimated at nearly a million dollars; the house is maybe worth $175,000. During operation, the workforce will far outnumber the residents. As the factory operates the employees will have to use the “residence” for business purposes; for instance, the main factory has no restrooms or septic in its design, the only toilets on the property are in the house. So for this to be a residence, someone has to live in the building used everyday as an office / breakroom / toilet. Commercial intent plainly dominates this massive development and to say otherwise is a misrepresentation of material fact. Another stunning claim supporting this development is that the new 10,080 sq. ft. “kit” building is consistent with the 5,000 sq. ft. size limitations for new structures constructed to accommodate cottage industries. This remarkable result is achieved by declaring that an area inside the building where final processing is done is a separate business – a cottage industry! As it turns out, the cottage industry only requires 1,800 sq. ft., which, conveniently, is the same size as the residence it is accessory to. This approach still leaves the other 8,280 sq. ft. of factory space to account for, however. (And remember, it’s all one “kit” building.) The explanation for the rest of the factory, where all the plant growing occurs, is now that it is storage or other commercial space accessory to the cottage industry. Got that? Two levels of “accessory” and two separate names applied to one giant, fully integrated, industrial “kit” factory effectively makes the whole facility acceptable as a cottage industry! The contortions of logic required for these claims to be accepted are enormous. It’s an obvious violation of the spirit of cottage industries and an obvious dodge of size limitations. It’s like claiming an elephant’s body is accessory to its trunk if you call the tip of the trunk a cottage industry. Such claims defy the common use of language and clearly defy the intent of cottage industry and other growth management regulations. Fortunately there is compelling evidence beyond common sense that the cottage industry claims are a misrepresentation of material facts intended only to obtain a permit. The Washington State Liquor and Cannabis Control Board license for the business and facility is for a single integrated growing and processing operation and business. One license, one business. The planned electrical supply arrangements for the power hungry facility are for a single “industrial” installation of at least 1000 amps. One electrical meter, one business. The string of contortions of logic and language applied to this situation is indeed stunning. They fail the straight face test at every turn. If the misrepresentations above aren’t enough to make you uneasy, try this: the county position that the industrial factory is exempt from environmental review seems to be based on a very, very selective reading of the county code. The section of the code they cite allows commercial buildings less than 12,000 sq.ft. to be exempt. (In this case, the “commercial building” they refer to is the section of the factory the county designated as an accessory to the cottage industry.) But just a few lines down the page in the same code there is a clear statement that exemptions may not be authorized if they “would have probable significant environmental impact”. To justify ignoring that section of the code the county is apparently relying on the applicant’s public statements that the factory will have no environmental impact at all. No noise, no smells, no water contamination, no light pollution, etc. But does that correspond to reality? Does it match the large and growing body of knowledge in the county about how marijuana factories impact the environment? Does it recognize the nature of the building site and local environment? Not at all! Just to touch on a few bits of evidence to the contrary, consider the work of ORCAA, the Olympic Region Clean Air Agency. Among their activities, they track and investigate odor violations from marijuana factories. At the public hearing regarding the proposed factory on Marrowstone, an 80 page document of complaints to ORCAA was submitted which described the steady stream of severe odor violations at marijuana factories in Jefferson and Clallam County. In many cases the violators claimed they were doing all they could to stop it. Several claimed to be employing the latest, advanced odor control technologies, to limited effect. It is important to note these are not secret documents; no one in county government should be surprised by these facts. They would seem to show that significant environmental impacts are indeed “probable”. In addition, it is important to consider the operations of the “grow” in conjunction with its location. The 10,080 sq. ft. building has no solid floor, it will just set on the ground (or perhaps have a gravel floor). Inside will be thousands of plants growing in hydroponic-like conditions. The factory is expected to use between 5,000 and 15,000 gallons of water a day. Part of the growing operation involves fertilizers, pesticides, and fungicides delivered with the water or misted into the air inside. Yet we are expected to believe that none of these chemicals will reach the ground. We are told there will be no water spillage, no clean up or rinsing of equipment. Further we are expected to accept this too-good-to-be-true operation right on top of the small, isolated aquifer that is the only water supply for many residents on the island. Common sense makes us think that the water and chemical management claims for the operations are wildly optimistic, to say the least. We think that makes it “probable” that significant environmental impact is likely and that, for this additional reason, the exemption for this development is wrong. A third shocking environmental aspect of the operation is that it will burn large quantities of propane to heat the “grow” and to increase the level of CO2 in the building above natural levels. Plants like CO2, and heat and light, for photosynthesis. So this operation will burn fossil fuel and spit out greenhouse gases regularly to achieve unnatural plant growth rates during operation. We think this also makes it a “probable” source of significant environmental impact. And what about increased fire risk from the continuous propane burning? Just last week there was extensive press coverage of a huge fire caused by the propane system of a marijuana factory in New York. A firefighter lost his life in the blaze. What does that incident say about the probability of environmental impact? And remember, on Marrowstone, the fire service is very limited. Once again, the environmental exemption for this proposed development fails the straight face test. It’s useful to check your common sense regarding the environmental risk of the proposed factory by building a mental image of the way employees will work each day. This isn’t farming; there is no one sitting on a tractor in the field wearing overalls and a straw hat. In this operation it’s more likely that workers will wear hazmat suits, rubber boots and gloves, respirators, and face masks. It will be more like Breaking Bad than Little House on the Prairie. Is that the sort of neighbor we should have forced on us in rural residential areas? Would you want the stinking, toxic mix of excess CO2 and chemicals blasted toward your home by the giant, noisy exhaust fans? Don’t those possibilities cause you to wonder about environmental impacts? At least enough to conduct a formal review? They certainly do on Marrowstone and we are confident they do in other rural residential areas. There is much more to this story, more questionable claims, more instances of bizarre contortions in language and logic used to justify proceeding. On some issues, the facts and language lead to obvious conclusions. On some issues, the interpretations of law and code may be arguable. It’s likely several lawyers will benefit from the coming legal struggle over all these details. In the meantime, the rest of us can step back and look at the broader picture. Unfortunately, it is as troubling as the distressing details of the case. Looking at all the false or questionable claims and all the bizarre interpretations of code supporting the development as a whole, you can’t help but see a pattern. There seems to be a very strong bias toward approving the project. And since this bias flies in the face of so many failures of the straight face test, many people are beginning to wonder if something else is going on here. In other words, this unfortunate, extreme case raises serious questions about the integrity of the process. And that’s the last thing we need in this county (or anywhere else) at this time. Interestingly, this bias also runs against the current policy trends in state government. Just a few weeks ago Governor Inslee exercised a partial veto of an economic growth bill that reached his desk. The section he vetoed dealt with rural residential development. The reasons he provided for the veto were that too many controls were being removed that protected rural residential areas from rampant industrialization. Our hope, based on common sense, based on respect for law and language, is that the county will reverse its approval of the project altogether. If it does proceed, it needs to be subject to profoundly different conditions regarding factory design and construction as well as operational requirements. Further, it needs to be subject to a rigorous environmental review, as mandated by state law, which includes serious test of claims against technical facts and operational experience from other such businesses in the state. There is huge public opposition to this development. Most of it comes, up until now, from the residents of Marrowstone. But as people elsewhere in the county become aware, more are joining the cause. It’s not just about Marrowstone, and it certainly is not about resistance to marijuana legalization. It’s about saving rural residential areas, and it’s about preserving respect for laws and codes and our public institutions. Sincerely, on behalf of many concerned citizens, David Fitzpatrick Nordland, Washington