HomeMy WebLinkAbout081219_ra02Regular Agenda
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUEST
TO: Board of County Commissioners
Philip Morley, County Administrator
FROM: David Wayne Johnson, Associate Planner - Lead
Austin Watkins, Civil Deputy Prosecuting Attorney
DATE: August 12, 2019
SUBJECT: Resolution on Draft Development Agreement for the Rocky Brook Hydroelectric
Facility Addressing Mandated Public Access
STATEMENT OF ISSUE:
The Rocky Brook Hydroelectric Facility (Rocky Brook), located on the Rocky Brook tributary, near the
Dosewallips River, proposes a development agreement between Jefferson County and Rocky Brook to
address a 1986 permit condition mandating public access to the Rocky Brook trail and falls. The County
shall only approve a development agreement by ordinance or resolution. (3cc 143, tc,. -3 oC.T))
ANALYSIS:
Background:
In 1986, the Jefferson County Board of County Commissioners (BoCC) approved a Shoreline Substantial
Development Permit (SH85-15) under the Shoreline Master Program authorizing the construction of a
hydroelectric facility on the Rocky Brook tributary. Condition # 4 of the 1986 permit required that "[t]he
public shall be permitted free and unencumbered access to Rocky Brook Falls at all times except during
active maintenance, repair, or removal of the facility."
In 2018, Rocky Brook proposed repairs and renovations to the existing hydroelectric facility, including
relocating the outfall into a new location along the tributary. This proposal was processed at Jefferson
County as a Shoreline Substantial Development Permit (MLA18-00105 / SDP 18-00023) under the Shoreline
Master Program. The 2018 permit was approved by the Jefferson County hearing examiner on May 7, 2019.
The 2019 permit affirmed the 1986 permit conditions, including the public access mandate.
During and after the hearing, Rocky Brook objected to a public access mandate as recent Washington case
precedents interpreting Washington's Recreational Immunity Act make it arguable that the immunities
provided under the Recreational Immunity Act do not apply when public access is mandated. The hearing
examiner's decision in the 2019 permit affirmed the public access mandate stating that liability was outside
the jurisdiction of the hearing examiner. Rocky Brook sought clarification from the hearing examiner on the
2019 permit condition and their liability assertions. The hearing examiner affirmed the 2019 permit decision
and the 1986 permit condition holding that the hearing examiner lacked the jurisdiction to amend a permit
Page 1 of 2
Regular Agenda
condition originally enacted by the BoCC.
In response to the mandated public access permit condition and potential inapplicability of the Recreational
Immunity Act, Rocky Brook proposes a development agreement authorized under RCW 36.70B.170 and
Article XI of Chapter 18.40 JCC to address the mandated public access issue. This proposed draft
development agreement resolves potential claims against Jefferson County or the potential closure of the
Rocky Brook facility.
Overview of Proposed Draft Development Agreement:
The proposed draft development agreement, which has been reviewed by the Prosecuting Attorney's Office,
removes the mandatory public access permit condition of the 1986 and 2019 permits and replaces it with a
voluntarily commitment to maintain public access. Under the proposed draft development agreement if
Rocky Brook disallows or substantially impairs public access without timely curing the default, the 1986
and 2019 permits will terminate. Further, if the proposed draft development agreement is terminated by
Rocky Brook the 1986 and 2019 permits will terminate. This proposed draft agreement maintains public
access while allowing Rocky Brook to avail itself to the protections afforded to it under the Recreational
Immunity Act.
Attachments:
• Resolution approving Development Agreement
• Proposed Draft Development Agreement
FISCAL IMPACT:
No fiscal impacts are anticipated from the proposed draft development agreement
RECOMMENDATION:
Having held the required and duly noticed public hearing on August 5, 2019, take action to adopt the
Resolution and sign the development agreement.
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Page 2 of 2
JEFFERSON COUNTY
STATE OF WASHINGTON
IN THE MATTER OF ADOPTING
A DEVELOPMENT AGREEMENT WITH } RESOLUTION NO.
ROCKY BROOK HYDROELECTRIC LP }
WHEREAS, the Jefferson County Board of County Commissioners (BoCC), on March
17, 1986, issued a shoreline substantial development permit (SH15-85) to the Rocky Brook
Hydroelectric LP (Rocky Brook LP) to construct and operate a hydroelectric facility on Rocky
Brook Tributary; and
WHEREAS, SH15-85 contained four conditions of approval, one of which was the free
and unencumbered access of the public to Rocky Brook Falls; and
WHEREAS, Rocky Brook LP applied and was approved for a new shoreline substantial
development permit (SDP18-00023)to upgrade to the facility; and
WHEREAS, the Jefferson County Hearing Examiner (Hearing Examiner) re -affirmed the
existing SH15-85 permit conditions in the SDP18-00023 permit, including the condition of
mandated public access to Rocky Brook Falls; and
WHEREAS, the condition of mandated public access to Rocky Brook Falls creates
potential liability for the Rocky Brook LP if someone visiting the site becomes injured; and
WHEREAS, Rocky Brook LP raised the liability issue during the public hearing for the
SDP 18-00023 permit; and
WHEREAS, Rocky Brook LP requested that the Hearing Examiner reconsider his
decision to re -affirm the SH15-85 mandated public access conditions under SDP18-00023; and
WHEREAS, the June 3, 2019 Hearing Examiner's reconsideration decision stated that
only the Jefferson County Board of County Commission (BoCC) has jurisdiction to modify the
SH15-85 permit conditions, as the SH15-85 was approved by the BoCC; and
WHEREAS, the Revised Code of Washington (RCW) 4.24.210 protects property owners
from injury liability if they offer recreational public access voluntarily; and
WHEREAS, a development agreement is the best vehicle to address the mandated public
access permit condition and Rocky Brook LP's liability concerns; and
WHEREAS, The Rocky Brook LP has proposed and submitted a Development Agreement
consistent with Jefferson County Code (JCC) 18.40 Article XI Development Agreements to
repeal the mandated public access condition of SH15-85 and stipulate that Rocky Brook LP shall
voluntarily open the site to public access, thereby allowing Rocky Brook LP to avail itself of the
protections afforded under RCW 4.24.210; and
WHEREAS, the BoCC is empowered to enter into a development agreement through a
resolution after having held a public hearing per JCC 18.40.850(5); and
WHEREAS, the BoCC held a duly noticed public hearing on August 5, 2019 to accept
and consider public testimony; however, no public testimony or written comment on the
proposed development agreement was received
NOW, THEREFORE, BE IT RESOLVED that the Development Agreement is approved
and the BoCC is authorized to sign it on behalf of Jefferson County.
APPROVED this day of August, 2019
JEFFERSON COUTNY
BOARD OF COMMISSIONERS
SEAL:
Kate Dean, Chair
David Sullivan, Member
Greg Brotherton, Member
ATTEST:
Carolyn Gallaway
Deputy Clerk of the Board
JEFFERSON COUNTY
DEVELOPMENT AGREEMENT WITH
ROCKY BROOK HYDROELECTRIC LP and DELL KEEHN
1.0 Parties.
This Development Agreement ("the Agreement") entered into by and between Jefferson
County ("the County"), a political subdivision of the State of Washington, and Rocky Brook
Hydroelectric LP, a Washington limited liability entity and Dell Keehn, an individual
(collectively "Rocky Brook"), collectively referred to hereinafter as "the Parties."
2.0 Recitals.
2.1 Rocky Brook is a unique project that provides electricity for the Mason County
PUD. It was originally permitted in 1986. Under the original permitting, Rocky Brook was
mandated to open the Property, as defined below, to public access.
2.2 In light of its natural beauty and location, Rocky Brook is visited by thousands of
locals and tourists during the year. The number of visitors has increased over time as
opportunities for cost-free recreation in the State have decreased.
2.3 The public use mandate has put Rocky Brook in an untenable position; namely, it
bears substantial, if not unlimited, legal exposure arising out of possible injuries suffered by
visitors. This risk is uninsurable, and because public use is mandated by the original permit, it
has become arguable under recent legal precedent that applicable immunities do not apply.
2.4 The exposure is sufficiently broad that Rocky Brook determined that it had no
choice but to close down and fence off the Property, such that the public would be precluded
from using or enjoying it in any manner. This would be a loss for the public as a whole—which
would be denied both a unique recreational opportunity and a source of green energy—as well as
Rocky Brook, which desires to operate its facility.
2.5 The County desired to protect the public's interests, which led to discussions and
good faith negotiations.
2.6 The Parties agreed to the terms below, which will allow the Property to remain
open for recreational use, while at the same time permitting Rocky Brook to avail itself to
Recreational Land Use Immunity under Ch. 4.24 et seq. RCW, thereby limiting its exposure in
the event of injuries and harms on its land.
ROCKY BROOK DEVELOPMENT AGREEMENT - 1
6864662.1
3.0 Property Description.
The legal description for the real property that is the subject of this Development
Agreement is set forth in Exhibit A, attached hereto and incorporated by this reference as though
fully set forth herein.
4.0 Modification of Permitting Conditions
4.1 The Recitals above are hereby incorporated into the Agreement. It is the Parties'
express intention that Rocky Brook be opened for the purpose of cost-free recreational use by the
public, and further, that Rocky Brook be permitted to avail itself to Ch. 4.24 et seq. RCW, to the
maximum extent permitted under the law.
4.2 All permitting conditions and approvals under SH15-85 (1986), Exhibit B, and
MLA 18-00105 (2019), Exhibit C, except as discussed below in 4.3, remain in force.
4.3. All permitting conditions and other requirements, including Condition # 4 under
SH 15-85, imposed by the County mandating that Rocky Brook be opened to the public are
hereby repealed and rescinded.
4.4. Rocky Brook shall voluntarily open the Property for recreational use by the
Public. Such public access shall remain for the duration of this Agreement.
5.1 Miscellaneous.
5.1 Termination. Either party may unilaterally terminate this Agreement. If the
Agreement is terminated by Rocky Brook, hydroelectric operations shall cease and associated
permits under SH15-85 and MLA18-00105 shall be void.
5.2 Default. If Rocky Brook disallows or substantially impairs public access, the
County shall provide Rocky Brook written notice of default and, if Rocky Brook fails to cure the
default within ten (10) days of receipt of the notice (or commence to so cure with diligent
prosecution thereafter when curing is not reasonably possible within said ten (10) days), the
agreement shall terminate and the associated permits under SH15-85 and MLA18-00105 shall be
void, unless the County obtains a specific performance remedy.
5.2 Vestin . This Agreement shall not vest Rocky Brook to any development
regulations. The County has the authority to impose new or different regulations to the extent
required by a serious threat to public health and safety.
5.3 Covenants Run with the Land. All of the provisions, agreements, rights, powers,
standards, terms, covenants and obligations contained in this Agreement shall be binding upon
the Parties and their respective heirs, successors (by merger, consolidation, or otherwise) and
ROCKY BROOK DEVELOPMENT AGREEMENT - 2
6864662.1
assigns, devisees, administrators, representatives, lessees, and all other persons acquiring the
Property, or any portion thereof, or any interest therein, whether by operation of law or in any
manner whatsoever, and shall inure to the benefit of the parties and their respective heirs,
successors (by merger, consolidation or otherwise) and assigns.
5.4 All Other Conditions Entitlements and Le al Rights. Nothing in this Agreement
is intended to modify any condition, entitlement, right, responsibility, or duty, other than as
expressly indicated above.
5.5 Relationship of Parties. Nothing contained herein or in any document executed in
connection herewith shall be construed as making County and Rocky Brook joint venturers or
partners.
5.6 No Third -Party Be17eficia1y. This Agreement is made and entered into for the
sole protection and benefit of the parties and their successors and assigns. No other person shall
have any right of action based upon any provision of this Agreement.
5.7 Further Actions and Instruments. Should additional documents or agreements be
necessary to effectuate the intention of this Agreement, the Parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the conditions of this
Agreement. Upon the request of either Party at any time, the other party shall promptly execute,
with acknowledgement or affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably necessary under the terms of
this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to
evidence or consummate the transactions contemplated by this Agreement.
5.8 Specific Performance. The parties specifically agree that damages are not an
adequate remedy for breach of this Agreement and that the parties are entitled to compel specific
performance of all material terms of this Agreement by any party in default.
5.9 Severability. If any phrase, provision, or section of this Agreement is determined
by a court of competent jurisdiction to be invalid or unenforceable, then the remainder of this
Agreement shall remain valid and unaffected.
5.10 Applicable Law and Attorney's Fees. This Agreement shall be construed and
enforced in accordance with the laws of the State of Washington. If litigation is initiated to
enforce the terms of this Agreement, each party bears its own attorney's fees and costs. Venue
for any action shall lit in Jefferson County Superior Court or the U.S. District Court for Western
Washington.
ROCKY BROOK DEVELOPMENT AGREEMENT - 3
6864662.1
5.11 Entire Agreement. This Agreement contains all the terms and conditions agreed
upon by the parties. No other understanding, oral or otherwise, regarding the subject matter of
this Agreement shall be deemed to exist or to bind either of the parties.
5.12 Changes, Modifications, and Amendments. This Agreement may be changed,
modified, or amended only by written agreement executed by both parties.
5.13 Effective Date; Record. This Agreement shall be effective when filed with the
Jefferson County Auditor in accordance with the provision of RCW 36.70B.190. All costs of
recording shall be borne by Rocky Brook.
SEAL:
ATTEST:
Carolyn Gallaway, Date
Deputy Clerk of the Board
C
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
Kate Dean, Chair
David Sullivan, Member
Greg Brotherton, Member
APPROVED AS TO FORM:
Philip C. Hunsucker, Date
Chief Civil Deputy Prosecuting Attorney
• C ' •Z•yA
Managing Partner
Dated:
ROCKY BROOK DEVELOPMENT AGREEMENT - 4
6864662.1
.2019
DELL KEEHN
Dated: , 2019
ROCKY BROOK DEVELOPMENT AGREEMENT - 5
6864662.1
EXHIBIT A
Parcel Number 602282004 in Section 28, Township 26N, Range 02W, TAX 7, WM, located at
3020 Dosewallips Road, Brinnon, WA 98325
6864662.1
EXHIBIT B
JEFFERSON COUNTY -CITY OF PORT TOWNSEND
SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT
ADMINISTERING AGENCY: Jefferson County DATE ISSUED: March 17, 1986
APPLICATION DATE: December 26, 1985 APPLICATION NUMBER: SH15-85
TYPE OF PERMIT ACTION: General TYPE OF USE: Primary
Pursuant to the 'Washington State Shoreline Management Act (RCW 90.58), a
permit is hereby issued to ROCKY BROOK HYDROELECTRIC LIMITED PARTNERSHIP to
to construct eu hydrooloctric facility on Rocky Brook, a tributary of the
Dosewallips River. The project is located in Sections 21 and 28, Township 26
North, Range 2 West, WM.
The facility consists of a 150 square foot intake structure placed in the
stream that is connected to a penstock. Tho penstock carries water to a 25 by 40
foot powerhouse located 200 feet north of the Dosewallips Road, near the base of
the Calls. The watol, passes through from one to four vertical turbine
generators; a fifth is possible. A surge tank is placed in line with the
penstock. The total head is 447 feet. Water exits the powerhouse and runs up a
slight incline in an outfall pipe and is discharged near the baso of the falls.
Electrical lines connect the system to an intertie owned by Mason County Public
Utility District No. 1.
This development shall be within Rocky Brook and/or its associated wetlands;
and not within a shoreline of state-wide significance, The site is an aquatic
shoreline designation.
The following sections of the Jefferson -Port Townsend Shorelne Management
Master Program apply to the proposed project: 1.20, "Purposes";
4.101, "Aquatic"; 4.103, "Conservancy"; 4.201, "Primary Use"; 5.200, "Utilities";
and 7.20, "Administrative Variances."
Development pursuant to this permit shall be undertaken subject to the
applicable policies and performance standards of the Jefferson -Port Townsend
Shoreline Management Master Program and the following conditions:
1. All provisions of the erosion control plans submitted for this project shall
be strictly followed. These measures shall be completed prior to the
issuance of a final occupancy certificate and full operation of the project.
Additional erosion control measures may be required by Jefferson County at
any time erosion is found to be impacting fisheries resources, project
facilities, or public improvements such as the Dosewallips Road,
2. Should the project become damaged, immediate provisions shall be made to
protect life and property, and the project shall be promptly repaired or
abandoned.
3. Should the project be abandoned, the remaining improvements shall be removed
and the site restored as closely as possible to its original condition.
4. The public shall be permitted free and unencumbered access to Rocky Brook
Falls at all times except during active maintenance, repair, or removal of
the facility.
This permit may be rescinded by Jefferson County or the Washington State
Shot -clines hearings Board upon the finding the permittee has not complied with
the conditions stated heroin, pursuant to RCW 90.58.140(8).
The permittee is liable for all damages to public and private property aris-
ing from violation of any provisions of the permit hereby granted, including the
cost of restoring the affected area to its condition prior to violation and possi-
ble court costs that my ensue from violation, pursuant to RCW 90.58.230.
Development pursuant to this permit will not begin nor is it authorized
until thirty (30) days from the date of filing as defined in RCW 90.58.140(6) and
WAC 173-14.090, or until all review proceedings initiated within thirty days from
the date of such filing have terminated, except as provided in
RCW 90,58.140(5.a -c). Development or substantial progress toward development of
the permitted activity shall begin within two (2) years from the date of this
permit and completion of the permitted activity shall be accomplished within five
(5) years from the date of this permit, unless an extension is requested by the
permittee prior to these expiration dates.
Nothing in this permit shall excuse the permittee from complying with any
other federal, state, or local statutes, ordinances, or regulations applicable to
this project, but consistent with RCW 90.58,
John L. Pitts, Chairman -
Jefferson County Board of Commissioners
ref: 3H15-85
EXHIBIT C
JEFFERSON COUNTY
DEPARTMENT OF COMMUNITY DEVELOPMENT
UNIFIED DEVELOPMENT CODE
TYPE III LAND USE PERMIT
SUBSTANTIAL DEVELOPMENT PERMIT
WASHINGTON STATE SHORELINE MANAGEMENT ACT (RCW 90.58)
PROPONENT: ROCKY BROOK HYDROELECTRIC
LIMITED PARTNERSHIP
7829 CENTER BLVD SE
SNOQUALMIE WA 98065-9096
DATE ISSUED: May 29, 2019
DATE EXPIRES: May 29, 2024
MLA#:MLA18-00105 CASE NUMBER: SDP18-00023
PROJECT DESCRIPTION:
TYPE III SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT - The project is an upgrade to an existing
permitted (SH15-85 - SDP85-00015) Hydroelectric facility. The upgrade includes new turbines in the powerhouse
that will decrease the amount of water needed to power the turbines by up to 50%, and a new outflow structure to
return the water to the creek. All work will be performed above the ordinary high water mark. A shoreline mitigation
plan has been prepared and submitted with the application to address no net loss of ecological functions and
processes. The project requires SEPA review with public notice and 30 day comment period, and a public hearing
with a decision by the Jefferson County Hearing Examiner,
PROJECT LOCATION: Parcel Number 602282004 in Section 28, Township 26N, Range 02W, TAX 7, WM,
located at 3020 Dosewallips Road, Brinnon, WA 98325
WATERBODY AND/OR ASSOCIATED WETLANDS: ROCKY BROOK CREEK
SHORELINE OF STATE-WIDE SIGNIFICANCE: UNKNOWN
SHORELINE DESIGNATION: NATURAL
FINDINGS:
1,) The Administrator finds that this application complies with applicable provisions of the Unified
Development Code, all other applicable ordinances and regulations, and is consistent with the Jefferson
County Comprehensive Plan and Land Use map.
2.) See Hearing Examiner decision dated May 7, 2019 for Findings, Conclusions and Decision attached to
this case as a document.
CONDITIONS: Development pursuant to this permit shall be undertaken subject to the applicable policies and
performance standards of the Jefferson County Shoreline Master Program and the following conditions:
1.) 1. Conditions of approval issued under existing permit SH 15-85 are still valid.
2. The applicant shall be required to obtain a professionally engineered building permit from DCD
including review and approval of stormwater pollution prevention, prior to land disturbing activities.
3. An HPA approval from the Department of Fish & Wildlife shall be required prior to land disturbing
activities.
4. The applicant shall implement the Shoreline Mitigation Plan prepared by Ecological Land Services
dated November 28, 2018, specifically the Restoration and Annual Monitoring Plans.
5. Work within jurisdiction of the Shoreline Master Program other than as described above shall receive
separate review from this Department.
6. Any future permits on this site are subject to review for consistency with applicable codes and
ordinances and does not preclude review and conditions, which may be placed on future permits.
NOTICE:
Construction pursuant to this permit will not begin nor is it authorized until twenty-one (21) days from the date of
filing as defined in WAC 173-27-130 or until all review proceedings initiated within twenty-one days from the date
of such filing have terminated, except as provided in RCW 90.58.140(5a -c). Construction or substantial progress
toward construction of the permitted development shall begin within two (2) years from the date of this permit and
completion of the permitted development shall be accomplished within five (5) years from the date of this permit.
Nothing in this permit shall excuse the permittee from complying with applicable local, state, or federal ordinances,
or regulations consistent with RCW 90.58.
Development pursuant to this permit shall be undertaken subject to the applicable policies and performance
standards of the Jefferson County Shoreline Master Program and the Jefferson County Unified Development
Code.
If during excavation or development of the site an area of potential archaeological significance is uncovered, all
activity in the immediate area shall be halted, and the Administrator shall be notified at once.
Department of Community Development Staff
c: Rick Mraz, DOE, Shorelands Office
WA State Attorney General
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