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Home My WebLink AboutRecon MLA17-0009 -1- OFFICE OF THE HEARING EXAMINER JEFFERSON COUNTY DECISION ON RECONSIDERATION FILE NO.: MLA17-00019: ZON17-00002-ZON17-00003-BLD17-00093 Application for Type III Zoning Conditional Use Permit OWNER/APPLICANT: Austin Smith 126 S.W. 148th Street, Suite C100-228 Seattle, WA 98166 PROJECT PLANNER: Patrick Hopper By Report and Decision dated October 31, 2017, the Examiner denied with prejudice applicant Austin Smith’s request for a cottage industry permit and conditional use permits to allow marijuana processing and production on a site located at 9272 Flagler Road, Nordland. On November 6, 2017, Ryan C. Espegard, attorney at law, timely filed a Request for Reconsideration pursuant to Section 18.40.310 of the Jefferson County Code (JCC). Said section sets forth the reconsideration procedure and does not authorize the Examiner to circulate a reconsideration request to parties of record for comment: A party of record at a public hearing may seek reconsideration only of a final decision by filing a written request for reconsideration with the hearing examiner within five business days of the date of the final written decision…The hearing examiner shall consider the request without public comment or argument by the party filing the request, and shall issue a decision within 10 working days of the request. If the request is denied, the previous action shall become final. If the request is granted, the hearing examiner may immediately revise and reissue his/her decision or may call for argument in accordance with the procedures for closed record appeal…. Pursuant to said section all issues raised by the applicant are addressed in the additional findings made as follows: 1R. The applicant asserts that he has submitted sufficient evidence to establish that the project will not create discernable noise on adjacent properties. The applicant asserts that all neighboring parcels are currently vacant forestland and do not contain existing residential or commercial uses. However, as set forth in the -2- Decision, the Washington Administrative Code (WAC) requires noise measurements at property lines regardless of whether or not such properties are improved. Thus, in a noise evaluation, it is irrelevant whether abutting parcels are improved or not. The applicable RR1:10 zone classification authorizes improvement of abutting lots with single-family residential homes. It is likely that sometime in the future development of abutting parcels will occur in accordance with the underlying zone. Therefore, the applicant must show compliance with noise criteria at the property line whether or not the abutting parcel is improved. 2R. The applicant also asserts as he did at the hearing that he proposes to use a state of the art Schaeffer fan system that drastically reduces noise output from the exhaust system. The applicant’s representative testified at the hearing that one could not hear the fan 20 feet away. At the same time, however, the applicant explained that noise from Schaeffer fans have been measured at 73 decibels from ten feet away. It is difficult to understand how the fans would reduce from 73 decibels at ten feet to zero decibels at 20 feet. Furthermore, the applicant has relied upon unsubstantiated testimony by himself and his representative regarding the noise produced by the fans, and has also relied upon information provided by the fan manufacturer in its brochures. The Examiner cannot accept such evidence as sufficient to establish that all fans operating simultaneously will not exceed noise standards, will not create a nuisance, and will not create additional noise that would be noticeable to and disturb nearby residents. Mr. Austin testified that Schaeffer fans have been measured at 73 decibels from ten feet away. But how many fans? If one fan measures 73 dB(A), how many dB(A) will eight fans produce? The Examiner will continue to require an independent noise expert to evaluate all noise generated by the growing/producing operation. Furthermore, there appears to be some discrepancy as to the distance of the proposed building to abutting property lines. A specific site plan should be prepared to show the exact location of the structure should the applicant decide to submit a new application. 3R. The applicant requests to supplement the record with a noise study. However, residents and staff should have the opportunity to review any such study, hear testimony from the expert, and if warranted, have the study independently reviewed. 4R. The applicant asserts that he worked extensively with staff, and that staff recommended approval of both applications. He therefore thought he had provided sufficient evidence to support approval of both permits. However, the applicant has the burden of proof, not DCD staff. Furthermore, the Growth Management Act contemplates one hearing for an application. An applicant cannot expect the County to convene additional hearings to allow presentations of additional studies that could have been prepared and presented at the scheduled hearing. Furthermore, the applicant was not “taken by surprise” by the opposition at the -3- hearing. Numerous letters of opposition had been submitted prior to the hearing date. 5R. The applicant asserts that JCC 18.20.170(4)(a) does not require that the applicant use the parcel for a residence prior to engaging in a cottage industry business. However, said section requires one fulltime resident of the parcel on which the proposed cottage industry “is being requested”. Said section requires a fulltime, bona fide resident on the parcel where the use “is” being requested. Such means that a person must reside on a site prior to making application for a cottage industry. 6R. The JCC does not contain a definition of either “bona fide”, or “resident”, and does not provide guidance where a term is not defined. The Examiner has therefore used Black’s Law Dictionary and Webster’s to define “bona fide”. Black’s Law Dictionary sets forth a definition for “bona fide residence” as: Residence with domiciliary intent, i.e., a home in which the party actually lives. Webster’s defines “bona fide” as: …good faith…made in good faith without fraud or deceit…made with earnest intent: sincere…neither specious nor counterfeit: genuine, authentic Webster’s defines “resident” as: …living in a place for some length of time: residing…being in residence Based upon the above definitions the JCC requires the applicant to actually live with domiciliary intent on the parcel whereon he wishes to establish a cottage industry. The JCC requires the applicant to be a bona fide resident at the time he submits an application for a cottage industry permit. 7R. The applicant also suggests that the Examiner bifurcate the application and approve either the producer application without the processer application or vice versa. However, the applicant submitted one application for both uses and they must be considered together. If the applicant desires to resubmit a separate application for each use, he may do so. -4- 8R. Finally, the applicant requests that should the Examiner deny the reconsideration request, that the application be denied without prejudice. Such would allow the applicant to resubmit an application sooner than one year. The applicant cites as authority for such consideration Section 314-55-020(10) of the Washington Administrative Code (WAC) that reads: Per RCW 69.50.331(1)(c), all applicants applying for a marijuana license must have resided in the State of Washington for at least six months prior to application for a marijuana license…. Since the JCC provides no guidance as to the length of time a cottage industry applicant must be a bona fide resident on the parcel proposed for a cottage industry use, it is appropriate to use the WAC criteria for guidance. Therefore, the Examiner will amend the Decision by changing the denial with prejudice to denial without prejudice. DECISION: The request for reconsideration is hereby denied; provided, however, that the denial of the application is changed from a denial with prejudice to a denial without prejudice. ORDERED this 16th day of November, 2016. ____________________________________ STEPHEN K. CAUSSEAUX, JR. Hearing Examiner