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HomeMy WebLinkAboutOlympus Gardens Hearing Examiner Decision_10312017ZoningApplication for Type III Conditional Austin Smith 126 S.W. 148" Street, Suite C100-228 Seattle, WA 98166 Patrick Hopper No-acroill Conditional use permit and cottage industry permit approval for the Olympus Gardens business that would consist of production and processing of recreational marijuana within a 10,000 square foot building. The site is located at 9272 Flagler Road, Nordland. &141411ART-017 DECISION: Request denied. After reviewing the Jefferson County Department of Community Development Staff Report and examining available information on file with the application, the Examiner conducted a public hearing on the request as follows: The hearing was opened on June 27, 2017, at 2.00 p.m. Parties wishing to testify were sworn in by the Examiner. The following exhibits were submitted and made a part of the record as follows: The 1111inutes of the Public Hearing set forth below are not the official record and ary provided for the convenience of the parties. The official record is the recording of the hearing that can be transcribed for purposes of appeal. 1X PATRICK HOPPER appeared, presented the Department of Community Development Staff Report and testified that the project is exempt from SEPA review pursuant to both the WAC and the JCC. He received additional comments that are included in Log Item 19. The applicant will provide a full screen along the road, and a Type S. stream crosses the site. The applicant applied for a Type III conditional use permit and staff determined it should be considered at an open record hearing. He has received 103 letters from the public. Concerning Log Item 20, the Board of Commissioners originally adopted a number of community plans effective throughout the County. However, when updating the Comprehensive Plan pursuant to the Growth Management Act, the Board incorporated all community plans within a final overall Comprehensive Plan. The community plans do not stand above the Comprehensive Plane Staff recommends approval subject to 43 conditions. KEVIN COKER appeared on behalf of the request and testified that he prepared the site plans for his client, and noted that a lot of the responses from the community concur with the application. They propose a greenhouse, and the Island has been historically used for agricultural uses. The greenhouse is in character with the area and is 50 percent of the maximum size allowed by the County. They will provide building modulation that will break up the mass. Within one mile is a structure 100 feet long and ten to 15 feet tall. Natural forest abuts on three sides, and they will screen Flagler Road with trees and a fence. They will plant screening varieties of native vegetation and will use only three percent of the site for the business. They will not obtain water from a well and an engineer will design their stormwater system. Stormwater runoff on the property will dissipate into the ground on the site. The greenhouse is 40 to 50 feet from the residence and they will control light and odor that will be minimal. They will ensure control of noise, light, odor, and other impacts. They will use a fog material to eliminate odor. The outside noise will be very small and 27 feet away from a property line. The exhaust fan can't be heard. It is state of the art. The light will be within the structure, won't get out, and will be conducive to the plants. They will have camera security that will focus into the site and away from surrounding properties. No additional light will occur outside of the structure. They will utilize a State -approved hydroponic growing system. They will use no chemicals in the growing. Concerning pedestrians and vehicles, they will have a small number of family members at the site, and would hire 2-3 employees during the harvest. They will have deliveries on occasion and on the weekends. The greenhouse is an agricultural use. No outside lighting is necessary for the security cameras. All light is internal to the structure. The current outside light on the parcel will remain. He has no information regarding criminal activity and marijuana grow operations. AUSTIN SMITH appeared and testified that ORCAA will approve their project and will examine the odors. They will utilize an odor filter system as well as odor mitigation in the greenhouse itself. LYLE COURTSAL appeared and testified that citizens have valid concerns. However, they are providing a good system, and they will work with the people on issues to ensure the project fits into the community. Farms create odors as well, and the owner will respond to violations. The smell of a small hog farm is much worse. Theywill have insignificant traffic and propose an agricultural use, namely, growing a plant. It is not a retail operation and will generate only minimal traffic. No waste is produced. No impacts will occur to residents due to smell. Thirty percent of the resource goes to the State. LEAH SIMON appeared and testified that an 1-502 processing business is located in Port Townsend. She buys the product from planters across Washington. It took her one year to get her permit. The LCB is extremely strict. One must meet all the requirements and a camera must cover every square inch of the parcel. It must be secured by a chain -link fence with a lock, and they must maintain 45 days of footage in their cameras. They hydroponic system discharges clean water into the soil. She has obtained material from an open farm in Chimicum and also from a Port Angeles greenhouse. She has seen ground - grown and greenhouse materials. The indoor way is non -sustainable. We can't relitigate the legality of cannabis. The permit issue is all about the present, proposed facility. BERT BOUGHTON, attorney at law, appeared and testified that he agrees that this permit is not about 1-502 or whether DCD agrees with or supports the project. The issue is whether the proposal complies with the code and Comprehensive Flan, The ultimate question is whether the action will protect the identity of the rural area. He objects to the County's determination that this action is exempt from SEPA. He referred to the WAC and believes that the project does not fit a categorical exemption within eitherthe JCC or WAC. Another issue is the commercial building. Staff is not talking about a commercial building in the RR zone. Even categorical exemptions are not exempt when a critical area is on the site. The site contains four critical areas. The responsible official needs to make another initial determination. An initial environmental review has to occur and a threshold determination issued. The County performed no environmental review here. Therefore, no further action can take place. The Hearing Examiner should remand this matter for environmental review and an initial threshold determination. Part of the decision is the environmental review as well as the Comprehensive Plan and code sections that deal with the issue. It boils down to the GMA definition of rural character as set forth in RCW 30.70A.030. Rural character refers to open space and natural areas and authorizes land uses that foster a rural lifestyle and economy. There is tension between the natural landscape, vegetation, and lifestyle with economics. Section 20 is the most debated as it deals with rural economic goals and policies. It encourages traditional job opportunities created by home -based businesses and cottage industries. Both sections are clear that such uses are allowed, but in situations where the residential use is predominant. Home businesses are subordinate and incidental to the residential use. The standards are adopted in code. One concern is that the applicant will not reside on the property. The processing is an industrial use that is permitted only in the RR zone with a conditional use permit. The LCB application shows no living wage provided for employees, no health insurance, and no sick days. He does not provide a lot of economic benefits, and that must be considered in whether the business meets the CUP criteria A. 10,000 square foot structure is in no way harmonious with the area. It has a larger scale and style and part of it is an industrial use. 3X GLENN GATELY appeared and testified that he has resided on the Island since 1977 and helped write the Community Plan that the County Commissioners approved in 1978. He referred to the plan goals on page 15 and noted that the greenhouse doesn't meet them. The applicant does not propose a retail use and the business will not provide products to serve the residents. Residential land is not appropriate for this type of use. His parcel is 420 feet south of the applicant's parcel and will lose value. A buyer lost interest in purchasing the property next door upon finding out about the grow operation. The project looks good on paper, but what if it doesn't comply? It will affect the enjoyment of neighbors on their own property. LINDA GATELY appeared and testified that she has resided on the Island since 1977 and believes that the marijuana grow operation will adversely affect property values and will reduce them from about $195,000 to $185,000. Colorado experienced an 8.4 percent price reduction. CHERYL BRUNETTE appeared and testified that we have a land use issue, not a marijuana issue. She opposes an industrial facility in a rural residential area. It is not a passive agricultural use. It will have 20 fans, propane, and plumbing. She referred to the conditions of approval that show no plumbing applications received or approved, it will also require Health Department approval based on soil as a growing medium. They propose hydroponic, which is not approved. A critical area stream runs through the parcel, and three acres consist of a wetland that drains to a shellfish farm that has been there since 1921. it is also in an aquifer recharge area and EPA has designated the site as over a sole source aquifer. A significant number of residents are still on wells and the business generates the need for special scrutiny. She has concerns regarding wastewater discharge, lighting, and stormwater discharging to the critical areas. 1-502 did not create new zoning laws. The Island is a place to live, but not for industry. AMY DOES appeared and testified that inadequate infrastructure is in place and that police and fire cannot provide an adequate response. The business requires a conditional use permit, but what about fire and police protection? These agencies have voiced concerns about response time that can be as much as a full hour. The odds are high that break-ins will occur. In Denver break-ins occur in 50 percent of the grow areas. In Oregon a robbery occurred. The State lists addresses of producers online. They don't want this particular use in their area due to the lack of law enforcement. LEE DOES appeared and testified that he once had a 20 acre farm, and people should expect the smell of hogs, etc., from agricultural uses. Agricultural buildings are open generally on one side. The size and scope of this operation does not meet the cottage industry definition, nor does it meet policies of the Comprehensive Plan. This is not a small -sized, family operation. We have here a 10,000 square foot building next to a 1,700 square foot house. This parcel can't meet the criteria for a cottage industry. There is still a 10,000 square foot structure on the property even if only 1,800 square feet is a cottage industry. This is not a "ma and pa" operation. A denial would not affect the applicant if it is his desire to live here. JOHN COMSTOCK, Marrowstone Island Preservation Commission, appeared and testified that we cannot shortcut the land use laws and the Jefferson County Code requirements are not met for such a business in this location. Approval of this project will place other parcels at risk for similar development as future applicants will cite it for a precedent. The wooded area results in clogged gutters and stormwater concerns. He reviewed the material from Schafer fans that noted its fans produce 77 dB(A) 20 feet away. Smaller fans produce 66 dB(A), and it is not 400 feet to the nearest property line. No noise restrictions are included in the terms of the permit. The building will clearly dwarf neighboring structures. None have eight foot fences facing the road. Truck parking may not be sufficient. He also referred to cumulative impacts of other businesses, and concluded that the CUP criteria are not met. SEPA and the LCB have conflicting codes. DAVE FITZPATRICK appeared and referred to the location of facilities in the RR zone and on the Island. The applicant purchased the property for $410,000 and the greenhouse kit and accessories will exceed the purchase price of the property, as they cost up to $750,000. The applicant still owns his house in Seattle. The labor costs will double the cost of acquisition. Concerning commercial, the proposed structure is six times as large as a residence. He will have no return for his initial operation. They will use the residence as an employee facility and office. The residence is really part of the business which violates the Comprehensive Plan. The business will create ground and water pollution, and no grow water will be captured or diverted to the septic system. They have provided no example of a system that would use between 5-15,000 gallons of water per day. Spills are inevitable. Large quantities of chemicals will be used, but they will have no provisions for protecting surrounding properties from the chemicals. He fears contamination from inside the facility, Other issues include noise, odor, and compliance with signage and design. He also has concerns regarding ORCAA compliance. The noise level of 66 dB(A) from eight large fans is probably not correct. The noise caused by the speed of the tip of a fan at 550 mph is great. He is skeptical. DOE wants independent testing. The RV park nearby will be exposed to smell, fan noise, light, traffic, and crime. ROGER SHORT appeared and testified that an out-of-town person is proposing this use and he wants to know who it is. PATRICIA FARMER appeared and testified that she served on the Jefferson County Planning Commission for eight years and that the applicant's proposal is not a normal agricultural product. A cottage industry is supposed to provide income for homeowners that operate businesses located in a garage. This project at a minimum needs more screening. ANONYMOUS appeared and questioned who gave approval. PATRICIA EARNEST appeared and testified that hydroponic growing is not approved. The Staff Report is not neutral. Environmental health confirmed the non -approved finding. She also referred to the DOE letter at Log Item 11. In the checklist that marijuana owners W submit, DOE's letter has not been reviewed as yet. The hydroponic method requires flushing before harvest and therefore SEPA review should occur. Will the applicant have armed -guards or dogs at the site? LEAH BROWN appeared and testified that she opposes an industrial use or cottage industry due to noise and air pollution. They live in a quiet, rural area that provides physical benefits, to include the relief of stress. Many people walk their pets and ride bicycles. JOANN COMSTOCK appeared and introduced Log Item 31. CAROL GONNELLA appeared and testified that they live on a delightful Island, but what happens if the power goes out? It will impact all residents in the same way. Many impacts will occur to residents, including helicopters flying overhead to inspect the business. LAUREL BURIK appeared and testified that the applicant's project is not agricultural in accordance with RCW 82.04, He can't separate the two uses. MR. AUSTIN reappeared and responded to concerns. DAVID GREETHAM, Jefferson County responsible official, appeared and testified thatthis application is flawed without the SEPA process, The site is 600 feet from a drainage course and such fact overrides the exemption. He is therefore withdrawing the SEPA exemption and will require the applicant to undergo SEPA review. MR. AUSTIN reappeared and testified that these uses occur in an urban environment and that crime occurs at retail outlets, but not at the grow operations. They will provide high security with cameras and portable fire equipment onsite. The fans will be well under 60 dB(A). Other concerns are simply not valid. No one spoke further in this matter and the hearing was concluded at 3:54 p.m. NOTE: A complete record of this hearing is available in the office of Jefferson County Department of Community Development. 1. The Hearing Examiner has heard testimony, admitted documentary evidence into the record, and taken this matter under advisement. 2. The proposal is exempt from review pursuant to the State Environmental Policy Act (SEPA) in accordance with Section 197-11-800(1)(d) of the Washington M. Administrative Code (WAC), as the applicant proposes a commercial structure less than 12,000 square feet in size. Residents request that the Examiner return the "exemption" determination to the responsible official and require environmental review and issuance of a threshold determination. Residents in essence appeal the SEPA exemption decision. However, RCW 43.21 C.060, a section of the SEPA statute, grants city and county legislative authorities the option of providing an appeal procedure. Section 18.40.330 of the Jefferson County Code (JCC) authorizes appeals of a threshold DNS or MDNS to the Dearing Examiner. Neither the JCC nor WAC 197-11-680(3) authorizes an appeal of an exemption. Therefore, the Examiner has no authority to return the matter to the responsible official for further evaluation. At the conclusion of the public hearing the responsible official withdrew the exemption based on testimony regarding a Type F stream on the parcel and allowed further comment. The responsible official subsequently reinstated the exemption, but all comments and the applicant's response were forwarded to the Examiner for consideration and included in the record. 3. Public Notice was published in the Port Townsend -Jefferson County Leader newspaper: Notice of Type II Application: April 19, 2017. Notice was posted on property: Notice of Type lI Application: April 19, 2017. The applicant, the project representative, the agencies, and all property owners within 300 feet were notified by mail. Notice of Type 11 Application: April 19, 2017. 4. The applicant, Austin Smith, requests approval of a cottage industry permit and a conditional use permit to allow processing of recreational marijuana in 1,800 square feet of a 10,080 square foot, 23 foot tall building. The applicant also requests a conditional use permit to allow production (growing) of recreational marijuana in the balance of the structure (8,280 square feet). The applicant has the burden of proof to show that both applications meet all applicable criteria set forth in the Jefferson County Code (JCC). The applicant has not shown that either request satisfies all criteria, and therefore both applications are denied. 5. Evidence in the record shows that in 2016 the applicant purchased a 7.3 acre parcel of property located at 9272 Flagler Road on Marrowstone Island in unincorporated Jefferson County. Improvements on the site include a modest, 1,750 square foot, single -story, single-family residential dwelling and several small accessory structures. The parcel abuts the west side of Flagler Road for 248 linear feet and measures approximately 1,295 feet in depth. Access to the parcel is provided via a single driveway extending west into the site from Flagler Road near the north property line. 6. The parcel and all surrounding parcels are located within the Rural Residential (RR1.10) designation of the Jefferson County Comprehensive Plan and the RR1:10 7X zone classification of the JCC. Residents of the area argue that the applicant's parcel and all parcels located on Marrowstone Island are subject to the Marrowstone Island Community Development Plan adopted in 1978. However, the Jefferson County Board of Commissioners adopted a new, countywide Comprehensive Plan in 1998 to implement the Washington State Growth Management Act (COMA). The 1998 Comprehensive Plan incorporated all Community Plans except those specifically excluded. The Marrowstone plan was not excluded. Thus, the present applications must be evaluated under the 1998 Comprehensive Plan. Furthermore, even if the Community Plan applies, if a conflict exists between a comprehensive plan and a zoning code, the zoning code prevails. Our Washington Court of Appeals in Lakeside Industries v. Thurston Count , 119 Wn. App. 886, ruled that where a comprehensive plan prohibits a use that the zoning code permits, the use is permitted. 7. Section 18.20.295 JCC entitled "Recreational MarijuanalCannabis" defines "marijuana processor" in Subsection (2)(b) in part as follows: (b) "Marijuana Processor" means a person licensed by the State Liquor Control Board [now Liquor and Cannabis Board] to process marijuana into usable marijuana and marijuana -infused products, package and label usable marijuana and marijuana -infused products for sale in retail outlets, and sell usable marijuana and marijuana -infused products at wholesale to marijuana retailers. Marijuana processing for the purpose of this section may or may not include drying, trimming and bagging of a recreational marijuana product. Subsection (3)(b) authorizes marijuana processing within "rural residential zoning districts" as a conditional discretionary use with a cottage industry permit. In addition to the cottage industry standards set forth in JCC 18.20.170, the applicant must also meet the standards that apply for all recreational marijuana activities set forth in JCC 18.20.295, as well as the conditional use permit standards set forth in JCC 18.40.530(L). 8. Section 18.10.030 JCC defines "cottage industry" as follows: "Cottage industry" means a commercial or manufacturing activity conducted in whole or in part in either the resident's single-family dwelling unit or in an accessory building, but is of a scale larger than a home occupation or home business. A cottage industry is a limited, small-scale commercial or industrial activity, including fabrication, with limited retail sales, that can be conducted without substantial adverse impact on the residential character in the vicinity. Section 18.20.170(1) JCC sets forth the purpose of a cottage industry as follows: (1) Purpose. To provide for small-scale economic development activities on residential parcels, subordinate to the primary residential use, if the administrator finds that such activities can be conducted without substantial adverse impact on the residential environment and rural character in the vicinity. The scale and intensity of cottage industries are typically greater than could be accommodated as a home business, but less than would require a land use district designation of commercial or industrial. The 1,800 square foot marijuana processing business requires a cottage industry permit. used upon the size of the business (1,800 square feet), and its general lack of impacts to the neighboring community, the proposed business fits with the list of uses allowable as cottage industries set forth in JCC 18.20.170(2). However, both the definition and purpose of the cottage industry provides that such businesses are subordinate to an existing primary residential use. In the present case the applicant has not established that a primary residential use exists on the site. 9. The first criteria that a cottage industry applicant must meet is set forth in JCC 18.20.170(4)(a) as follows: a. The cottage industry shall be operated by at least one full-time, bona - fide resident in a single-family residence of the parcel on which the proposed use is being requested. (emphasis added) The applicant has the burden to show that he meets this first criteria. The applicant has not done so. The applicant has owned the parcel and single-family residential dwelling for approximately one year. The applicant has presented no proof that he or any other family member has resided permanently within the residence since purchase, or that anyone is residing there at present. To the contrary, the applicant testified that he continues to reside in Seattle with his family. He presented no utility or cable service billings mailed to the Flagler Road address, nor has he presented any documentation showing he is registered to vote in Jefferson County. He submitted no evidence of residential phone records, cellular phone bills, electric or gas utility bills, or records from the Department of Licensing to establish his address or any family member's address at Flagler Road. Furthermore, he did not present his driver's license or any automobile insurance policy showing the Flagler Road address as where he keeps his vehicles. He presented no Federal income tax return showing the Flagler Road address as his home address, and no personal checks, bank statements, or credit card bills with the Flagler Road address. Thus, the applicant has not shown that either he or another member of his family resides at the Flagler Road address at the time "the proposed use is being requested". The evidence (or lack thereof) shows that Mr. Austin is not a resident requesting approval of a cottage industry accessory use. The evidence shows that Mr. Austin purchased the site for the purpose of establishing a business as the primary use, 9X and then possibly moving onto the site for the purpose of running the business. Even then, his testimony or written documentation confirms that his family will continue to reside in Seattle where his children are in school, that he will come to the site during the week, but return "home" on the weekends. Such is akin to a traveling salesman, a long distance truck driver, or a person in the military that leaves home temporarily to perform his/her job, but returns "home" after completion. The applicant has not established that neither he nor anyone else is presently a „bona fide resident" or will become a "bona fide resident". 10. Section 18.20.170(4)(b) JCC provides that the applicant may not employ more than four employees "who reside off the subject property". The applicant asserts that his family will operate the business, but also asserts his business will bring employment opportunities to Jefferson County. The applicant has not specified the number of permanent and temporary employees nor the number and identity of family members who will work in the business. Again, the applicant has the burden of showing compliance with Criteria (4)(b) and has not done so. 11. Section 18.20.170(4)(e) requires that all structures and outside activities be screened from adjacent properties to avoid disturbances such as noise and other nuisances or hazards. This criteria is addressed hereinafter. Criteria (4)(o) requires that a new structure proposed to accommodate a cottage industry be limited in scale so that it is in character with neighboring properties, but in no case more than 5,000 square feet of total building area. The applicant has limited the cottage industry to a total of 1,800 square feet consistent with the size of the single-family residence on the site and other improvements in the area. The request complies with all other cottage industry criteria. 12. Section 18.20.295(2)(c) JCC defines "marijuana producer" as follows: (c) "Marijuana Producer" means a person licensed by the State Liquor Control Board [now Liquor and Cannabis Board] to produce and sell marijuana at wholesale to marijuana processors and other marijuana producers. Marijuana producing for the purpose of this section shall include drying, trimming and bagging of a recreational marijuana product when done in conjunction with producing. Section 18.20.295(3)(a) JCC authorizes marijuana production as a conditional discretionary use in rural residential zoning districts to include the applicable RR 1:10 zone. Section 18.20.295(4) JCC provides in part- (4) The following standards shall apply for all recreational marijuana activities: (a) Producing in the forest resource lands and rural residential zones is allowed as a conditional discretionary (C(d)) use 10x subject to the recreational marijuana standards and structure size limitation: (i) Permanent and temporary growing structures on rural residential lands RR 1:5, RR 1:10, and RR 1:20 and forest resource lands shall meet the following standards in addition to all other applicable Jefferson County Code. (B) Rural Residential 1:10 and 1:20 ...Temporary or Permanent Growing Structure Size. The allowed structure size is a total combination of square footage of gross floor area for all growing structures. (1) Five percent of gross parcel size in square feet, up to a maximum of 21,780 square feet gross floor area. Thus, the JCC authorizes marijuana production (growing) within the RR 1:10 zone classification within structures up to a maximum of 21,780 square feet of gross floor area. The applicant proposes approximately 8,000 square feet of growing area, well within the maximum authorized. Even if combined with the processing area, the total size of the building is less than half the size authorized by the JCC. The project also generally complies with all other requirements set forth in JCC 18.20.295 as the proposed structure is properly landscaped and will substantially exceed all required setbacks with the exception of the setback from the north property line. Section 18.30.050 JCC requires a minimum setback of 25 feet from the north property line and the site plan shows that a greenhouse wail will measure 27 feet therefrom. Other setbacks provided are 160 feet from Flagler Road, 190 feet from the east property line, and 148 feet from the south property line. Conditions of approval ensure compliance with cameras, fencing, and provision of a copy of the operating plan. Furthermore, the applicant must meet all requirements of the Liquor and Cannabis Board that will include details of chemicals, processes, extraction methods, waste handling procedures, and safety measures. 13. Chapter 18.30 JCC sets forth general development standards that the overall project must meet. Said standards address water supplies, sewage disposal, density, dimensional and open space standards, stormwater management standards, landscaping and screening, and lighting. The applicant's project will comply with said standards as the Jefferson County Public Utility District will provide domestic water to the site, and the Jefferson County Department of Environmental Health must approve the onsite septic disposal system. The project complies with all setbacks, impervious surface limits, and building height limits effective in the RR 1:10 zone. The applicant must meet the Jefferson County stormwater management requirements that include the Washington Department of Ecology Stormwater Management Manual for Western Washington. The site can accommodate all ism landscaping and screening requirements. Conditions of approval address lighting, and the applicant has committed to providing a screen to mask the interior lighting of the grow area. Compliance with conditions of approval will assure that the project meets all development standards with the exception of noise. 14. The applicant has requested conditional use permit approval for both the marijuana production and processing portions of the business. Section 18.40.530(1) JCC sets forth the criteria for a conditional use permit. Subsection (1)(d) reads: (d) The conditional use will not introduce noise, smoke, dust, fumes, vibrations, odors, or other conditions which unreasonably impact existing uses in the vicinity of the subject parcel. While the applicant has testified that the business will not create noise, fumes, or odors that will unreasonably impact existing uses, the applicant has produced no studies or confirmation by experts that such is the case. The building plans show that the building will include eight, 48 inch, exhaust fans on one side of the structure; two, Light Dept motors; three, 24 volt, roof vent motors; and 20 HAF fans. The structure will also include 13, 51 inch intakes on the opposite side of the building from the exhaust fans. The applicant submitted no evidence to establish the dB(A) levels produced by the fans operating separately or together at the parcel's property lines. Thus, the applicant has not established that the fans would not exceed the noise levels of 55 dB(A) daytime and 45 dB(A) night time (see WAC 173-60-040(2)(a)). Furthermore, our Washington Court of Appeals in Kitsap County v. Kitsap County Rifle and Revolver Club, et. al., 184 Wn. App 252 (2014), held that even if noise complies with WAC standards, such noise could still constitute a nuisance: The Club cites no Washington authority for the proposition that noise cannot constitute a nuisance unless it violates applicable noise regulations and Code provisions. None of the nuisance statutes or Code provisions requires that a nuisance arise from a statutory or regulatory violation. A nuisance exists if there has been a substantial and unreasonable interference with the use and enjoyment of property... The trial court's unchallenged findings of facts support a determination that noise the Club generates constitutes a nuisance regardless of whether the noise level exceeds the specified decibel level. ... 184 Wn. App. 252 @ 279, 280 In the present case the applicant provided no evidence of whether noise from the business would create a nuisance. Furthermore, the Environmental Protection Agency (EPA) has adopted Region X Environmental Impact Guidelines that address community reaction to an increase in noise levels from a project. In the present case, testimony establishes that Marrowstone Island is a very quiet environment. Therefore, increases in noise levels that might be unnoticeable near a major arterial 12X could be highly noticeable on the Island. The Region X EPA guidelines find that an increase of noise level up to five dB(A) generates few complaints if there is a gradual increase in noise level. Increases of between five and ten dB(A) generate more complaints, especially during night time hours. Increases of ten dB(A) generate substantial numbers of complaints. The applicant has made no showing of the increases in dB(A) that residents could expect. The applicant has therefore not satisfied conditional use permit criteria (c) and (d). It is further noted that noise measurements required by WAC 173-60 are made at the property line, and the criteria make no distinction between improved and unimproved parcels. Thus, the applicant has not shown that the noise generated by the business meets WAC criteria at the north property line 27 feet from the building, nor has he shown that the noise will not create a nuisance. 15. The proposed use, including the building, generally satisfies the balance of the conditional use criteria as the applicant has utilized architectural features such as pitched roofs and modulation to blend the structure better with existing residential uses and has limited the height of the structure to 23 feet, 12 feet below the authorized limit. Furthermore, the size of the parcel (7.3 acres), the setbacks, plus additional landscaping will render the building almost invisible from surrounding properties. 16. Residents of Marrowstone Island raise significant concerns regarding appropriateness of the applicant's business on Marrowstone Island, its compatibility and harmony with the area, and its adverse affect on property values. Residents also assert that the business will adversely affect the health, safety, and welfare of the Island. The listing of allowed conditional uses is a determination by the legislative body that such uses are consistent with a particular zone. In Anderson's American Law of Zoning, „Fourth Edition, Section 21.17, the author cites Twin County Recycling Corporation „v. Yevoli, 90 NY 2d 1,000 (1997), wherein the court overturned a town's denial of a special use permit for an asphalt recycling plant, holding. The classification of a particular use as permitted in a zoning district is "tantamount" to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood —as opposed to a variance which would allow an otherwise prohibited use.... As further stated in Anderson, Section 21.13: The courts rarely disapprove the granting of a special permit solely on the ground that the use is not in harmony with the neighborhood, or with the intent and purpose of the zoning ordinance. Legislative authorization of the special permit supports a presumption that the use is generally in harmony with the neighborhood, and that it will promote OW general welfare. The burden of proof will rest with the municipality or the persons protesting the granting of the permit... While the foregoing cases indicate that the courts have some concerns that special permits not be granted in violation of a standard requiring harmony with the neighborhood or the Community Plan, a larger group of decisions suggest that where an applicant seeps a permit for a use which is not grossly inconsistent with the area in which he desires to locate, a denial is likely to be reversed, and issuance probably will be sustained. Our Washington Courts agree with the "larger group of decisions" referred to by Anderson, supra. See Sunderland Family Treatment Services v. City of Pasco, 127 Wn, 2d 982 (1995). 17. In Anderson, supra, Section 21.21, the author addresses the denial of special use permits based upon public health„ safety, and welfare concerns as follows: Denial of a permit on the ground of public safety will not be sustained if the record discloses that the use will comply with existing safety ordinances, or where the evidence does not support the conclusion that the proposed use will impose a safety hazard on the neighborhood. One court reversing a denial of a permit by a town board said that "The test is...will the establishment proposed imperial the safety of person or property" Our Washington courts agree with the assessment in Anderson, supra. In Department of Corrections v. City „of Kennewick, et. al., 86 Wn. App. 521 (1997), the Department appealed the City's denial of a conditional use permit to construct a work release facility within urban boundaries. The Court of Appeals framed one issue as follows: Is public perception that the work release facility creates a risk of crime to persons who live near the facility or who visit businesses in the area a legitimate basis for denying DOC a conditional use permit. One issue raised in the present case is whether public perception of the impacts associated with the marijuana facility provides a legitimate basis for denying the conditional use permit. In addressing a public perception issue our Court of Appeals held: The few Washington cases that have considered the relevance of community fears to zoning decisions have required that the fears be substantiated before the zoning authority may use them as a basis for its decision. The Court distinguished between "well-founded fears 14X and those based on inaccurate stereo types and popular prejudices". The latter category does not justify zoning restrictions. We hold that there is a distinction between nuisance cases and zoning cases that prevents the decisionrnaker from considering neighbors' general fears in deciding whether to grant an owner's application for a conditional use permit. 86 Wn. App. 521 @ 532, 533 Finally, in Sunderland, supra, our Washington Supreme Court required objective evidence such as real estate expert opinions to substantiate validations of property depreciation, and that "well-founded fears justified such reduction". In Sunderland, one of the City's findings used as a basis to deny a special use permit was that "The proposed use will impair the value of adjacent properties by diminishing their desirability as single-family residential units due to concerns for the safety of elderly homeowners and young families for their young children". The Court addressed said finding as follows: Sunderland and the City agree this finding is based upon fears of neighborhood residents rather than more objective evidence such as real estate expert opinion. In the past, this Court has acknowledged that neighbors' fears may reduce property values... However, there is an important distinction between well-founded fears and those based upon inaccurate stereotypes and popular prejudices.... Courts have long held the later cannot justify the zoning restrictions... In this case, there is no evidence the home would have any effect on the safety of the elderly or children in the area. Any reduction in property values would be based on unsubstantiated fears with regard to teenagers from troubled homes. This is not competent or substantial evidence to support the City's findings. 127 Wn. 2d 782 @ 794, 795 01 1kq M 10• The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. 2. The applicant has not satisfied his burden of proof of showing that the request for a conditional use permit and a cottage industry permit to allow his marijuana production and processing business meets all criteria set forth in the JCC and therefore should be denied. 3. Section 18.40.280(6) JCC authorizes the Examiner to approve, approve with conditions, deny without prejudice, or deny with prejudice an applicant's request. A denial without prejudice authorizes reapplication or submittal of the application 15X immediately, while denial with prejudice prohibits reapplication or resubmittal for a one year period. In the present case, the applicant should establish a bona fide residence on the parcel for a reasonable period of time prior to submitting a new application for a cottage industry permit. The applicant needs to provide evidence of a bona fide residence to staff in accordance with the findings above prior to resubmittal. Therefore, the applications should be denied with prejudice. The request for a cottage industry permit and conditional use permit to allow marijuana processing and production on a site located at 9272 Flagler Road, Norland, is hereby denied with prejudice.