HomeMy WebLinkAboutEXHIBIT_052Ex 5zlF\
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Reply to: Seattle Office
February 25"2020
Jefferson County Hearing Examiner
Department of Community Development
621 Sheridan St.
Port Townsend. WA 98368
RE: Williamson Marijuana Project, MLAI3-00102
Dear Hearing Examiner:
We represent Chris Wilson, a property owner on the Toandos Peninsula. One of Mr. Wilson's
near neighbors, Tracy Williamson, has applied for a conditional use permit, on behalf of Jessie
and Luke Williamson, to operate a marijuana producer/processor facility at 860 Old Coyle Road
(formerly 9790 Coyle Road), parcel number 601105013. For the reasons we describe below, this
project cannot be approved.
I. No Full-Time, Bona-Fide Resident
By email from Mr. Johnson to Tracy Williamson, dated December 3,2018, the County alerted
the Williamsons to the requirement that a cottage industry application requires the applicant to
demonstrate that "[t]he 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."
JCC 18.20.170(aXa). The County also correctly noted that the Williamsons were subject to this
requirement, because they are not only marijuana growers but processors. See JCC
l8-20.295(4)(c). See Ex.27.at 13.
For this reason. the County declined to treat the Williamsons' CUP application as complete until
the Williamsons obtained a building permit for a cabin to use as a single-family house. The
County further advised the Williamsons that the burden of proof was on the Williamsons. and the
Williamsons "might consider either buying the property and establishing residency, or
withdrawing [their] application and taking a refund of any unused fees." (emphasis added). Id.
t424 tourth Avenue, Suite 500, Seattle, WA 98101 o 25 West Main, Suite 214, Spokane, WA 99201
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Jefferson County Hearing Examiner
February 25,2020
Page2
The Williamsons were issued a building permit for a cabin on May 21,2019. However, the cabin
has not yet been built, and-most important-the Williamsons have not yet established that the
operator of this marijuana facility will be a bona-fide, full-time resident on the site.
The Williamsons'case has certain parallels to the case of Austin Smith, MLAIT-00019 (decision
attached). In that case, Mr. Smith sought to establish a marijuana producer/processor facility as a
cottage industry on Marrowstone Island. At the time of his application, Mr. Smith had owned the
property for a year, and there was a single-family house (not just a cabin) already built on the
property available for him to live in. See MLAIT-00019, Hearing Examiner's Report and
Decision (Oct. 31,2017), finding no. 9.
However, despite the presence of the house and the year of Mr. Smith's ownership, the Hearing
Examiner determined there was no evidence that Mr. Smith was a bona-fide, full-time resident.
The Hearing Examiner specifically cited the lack of the following forms of evidence:
No utility or cable service billings mailed to the address;
No evidence he is registered to vote in Jefferson County;
No residential phone records or cell phone billing records for the address;
No records from the Department of Licensing for the address;
No driver's license from the address;
No car insurance from the address;
No federal income tax return from the address;
No personal checks, bank statements, or credit card bills from the address
rd.
Absent these forms of documentation, the Hearing Examiner rejected the notion that Mr. Smith
was a bona-fide, full-time, permanent resident. The Hearing Examiner ruled that Mr. Smith had
purchased the property "for the purpose of establishing a business as the primary use, and then
possibly moving onto the site for the purpose of running the business," which the Hearing
Examiner concluding was insufficient to establish bona-fide residency. Id. The Hearing
Examiner emphasized that a cottage industry must be "subordinate to an existing primary
residential use," which Mr. Smith's marijuana facility was not. Finding No. 8 (emphasis in
original).
Like Mr. Smith, the Williamsons purchased this property for the specific purpose of running a
marijuana business, as Jessie Williamson admitted in her email to the County dated November 5,
201 8:
I wanted to update you [Mr. Johnson of the County] on the progress we have
made so far. We have completed our Cottage Industry Application, Conditional
Use Permit, and Odor Mitigation and Prevention Plan. As you know we are
waiting to finalize the purchase of the property based on the decision to allow
us to produce and process marijuana. What forms do we need to turn in today
to get the public notice process started?
Jefferson County Hearing Examiner
February 25,2020
Page 3
Ex.27, at 6 (emphasis added)
Thus, from the outset, it is obvious the Williamsons are not homeowners looking to start a
marijuana business as a cottage industry, but marijuana businesspeople who are buying a home
in a misguided effon to satisfy the cottage industry requirement. This places them in the same
category as Mr. Smith-businesspeople first, homeowners second, and utterly lacking an
"existing primary residential use." And, as with Mr. Smith, there is a high likelihood that the
Williamsons are not genuinely planning to live full-time on the property, but are merely
checking an administrative box by proposing to build a house they do not intend to live in.
Therefore, as was the case for Mr. Smith, the Hearing Examiner should require the Williamsons
to submit the entire suite of documentation required by the Hearing Examiner of Mr. Smith:
income taxes, drivers' licenses, car insurance, utility bills, and bank and other financial records.
Only by conducting a thorough review of the Williamsons' living situation will the Hearing
Examiner be able to assess whether the Williamsons are bona-fide, permanent, full-time
residents, rather than businesspeople who are just building a cabin as a fig leaf.
As was the case with Mr. Smith, the Hearing Examiner should not accept promises from the
Williamsons that one of their family is planning to reside on the property, particularly in light of
the tiny size of the Williamsons' proposed cabin (24 x 32 feet, according to their site plans) (Ex.
12). Instead, the Hearing Examiner should require proof that one of the Williamsonsis actually
residing on the property, and has been doing so for at least six months, which is the standard to
establish Washington State residency under the Washington Liquor Control Board's rules. See
WAC 314-55-020(10) (adopted as Jefferson County standard for marijuana cottage industries by
Hearing Examiner's Decision on Reconsideration Otrov. 16,2017), finding no. 8R (attached).
II. Conditional Use Permit Criteria
The Williamsons bear the burden of demonstrating compliance with the conditional use permit
criteria, including the following:
A. Noise and Odor. Under JCC 18.40.530.1.c: "The conditional use will not introduce
noise, smoke, dust, fumes, vibrations, odors, or other conditions or which unreasonably impact
existing uses in the vicinity of the subject parcel."
The Williamsons' noise study, prepared by the Greenbusch Group, erroneously claims that noise
levels will be within the decibel limits set by the statewide Ecology rules, WAC 173-60. See Ex.
19, Greenbusch study.
In reality, the Greenbusch study actually demonstrates that the decibel limits will be exceeded.
The Greenbusch study treats the Williamson property as if it is a "Class C" property, because it
will be used for "agricultural" purposes. If the Class C rating were correct, the daytime noise
limit for the Williamsons' residential neighbors would be 60 dBA, and the nighttime limit would
be 50 dBA. See WAC 173-60-040.
Jefferson County Hearing Examiner
February 25,2020
Page 4
However, the Williamson property should actually have a Class A rating. Under the Ecology
rules, a Class A property includes "Lands where human beings reside and sleep. Typically, Class
A EDNA will be the following types of property used for human habitation: (i) Residential."
WAC 173-60-030(l)(a).
The Williamson property meets this definition because:
o It is zoned Rural Residential;
o A single-family house is under construction there; and
o Under the Jefferson County Code, a marijuana processor is a "cottage industry" in the
Rural Residential zone (JCC 18.20.295.4.c), which must there must be a "full-time, bona
fide resident in a single-family residence of the parcel on which the proposed use is being
requested." JCC 1 8.20. 17 0.4.a.
o All cottage industries are, by law, "subordinate to the primary residential use." JCC
18.20.170.1.
From these facts, it is clear that the Williamson property is actually Class A land, because it is
"land where human beings reside and sleep" and also "residential" land.
Here, a use typical of Class A, namely residential, is not just permitted but actually required for
the Williamsons' marijuana facility. And, under the cottage industry rules, the Williamsons'
agricultural use is "subordinate" to that residential use. Therefore, the Williamsons' property is
Class A property, not Class C.
As a class A property, the noise limits that apply to the Williamson property, with regard to their
residential neighbors, are 55 dBA by day and 45 dBA by night. WAC 173-60-040.
As the Greenbusch study itself demonstrates, there will be at least 47 dBA of noise at the
southern property line. Therefore, even accepting the Greenbusch report at face value, the
Williamsons are proposing to violate the numeric noise limits. The Hearing Examiner should
conclude this is a violation of JCC 18.40.530.1.c, in that it will introduce noise which
"unreasonably impacts existing uses in the vicinity of the subject parcel." This is grounds to deny
the conditional use permit.
In addition, as noise expert Jerry Lilly explains in detail in his February 20,2020 review of the
Greenbrush materials, there is good reason to believe the Williamsons' marijuana facility will be
louder than the Greenbusch study indicates:
In addition, the Williamson property does not meet the definition of Class C land. Class C land
does include "Agricultural and silvicultural property used for the production of crops, wood
products, or livestock" WAC 173-60-030(l)(c)(iii), but the rules also say that "uses typical of
Class A EDNA are generally not permitted within such [Class C] areas." Id.
Jefferson County Hearing Examiner
February 25,2020
Page 5
a
a
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The Greenbusch study measured ambient noise next to Coyle Road, where noise is louder
than in the more secluded parts of the property such as the boundary with the residential
neighbors. This led the Greenbusch group to underestimate the noise impact of the
marijuana facility. In reality, "noise from the ventilation fans could easily be audible" at
adjacent properties, because the ambient noise is lower than what Greenbusch measured.
The Greenbusch study assumes that ductwork associated with the fans will mitigate noise
levels. However, there is no detailed construction diagram of the marijuana facility that
shows this ductwork. The assumption that ductwork will mitigate noise levels is wholly
unwarranted and unsupported by evidence.
The Greenbusch report wrongly indicates that the larger, noisier type of fan would be
used in one building but not the other. In reality, it is more likely the larger fan will
appear in both buildings (because the purposes of both buildings is identical), leading to
more noise than the Greenbusch study assumes.
The Greenbusch study wrongly treats the buildings themselves as if no noise will radiate
from them. In reality, noise will radiate through doors and ventilation openings, and even
through the walls themselves.
The Greenbusch study fails to account for the use of gas-fired heaters, which are quite
noisy. Yet marijuana cannot be grown indoors in our climate without heaters, so the noise
from the heaters should have been added to the noise ofthe fans.
The foregoing errors provide the Hearing Examiner additional reasons to find that the
conditional use cannot be granted. Until the deficiencies in the noise study are corrected, and a
true accounting of the facility's noise is provided, the Hearing Examiner cannot conclude that
"The conditional use will not introduce noise, smoke, dust, fumes, vibrations, odors, or other
conditions or which unreasonably impact existing uses in the vicinity of the subject parcel."
Finally, the Williamsons' noise study also contradicts the Williamsons' odor control plan. Ex.
15. The noise study does not include any interior fans. But according to the odor control plan,
there will be additional fans inside each marijuana building circulating and treating the air. to
reduce odors These additional fans are not accounted for in the noise study. Nor does the noise
study analyze whether the presence of filters associated with the fans will require the fans to
operate at a higher, louder speed.
Beyond its conflict with the noise study regarding the number of fans, the odor control plan has
the same problem as the noise study, in that it was not prepared by a professional, and its claims
cannot be evaluated. There are no structural drawings of the buildings to enable the Hearing
Examiner to evaluate the effectiveness of the proposed filters, nor are the technical specifications
(or even model numbers) for the filters disclosed. The number, size, and location of the filters are
not disclosed. The presence or absence of windows, doors, and ventilation in the marijuana
buildings is not disclosed. It is impossible to say, based on this flimsy record, whether the
Jefferson County Hearing Examiner
February 25,2020
Page 6
Williamsons' odor plan will do anything at all to reduce the odor of marijuana production and
processing.
B. Water and Wastewater. Under JCC 18.40.530.1.b, a CUP may be issued only if "[t]he
conditional use will be served by adequate infrastructure including roads, fire protection, water,
wastewater disposal, and stormwater control." (Emphasis supplied.)
As this criterion indicates, wastewater is a separate concem from stormwater. The Williamsons
have provided no wastewater control plan. They have not even disclosed the nutrients and
herbicides they will be using on their plants or in their processing. As discussed further below,
marijuana wastewater cannot be disposed of in a septic system, so the Williamsons will have no
other option for disposal but to dispose of it in surface waters or by spray irrigation, either of
which will require permits from Ecology, as discussed in the next section below. Wastewater
disposal is a particularly critical issue on the Toandos Peninsula, where the majority of residents
share aquifers. Contamination from any improper wastewater disposal by the Williamsons will
have a severe impact on their neighbors.
The Williamsons claim there will be no wastewater, because "we hand water all our rooms
which we have done from the beginning which we will continue to do. This allows us to
eliminate waste water completely and monitor the health of our plants on a daily basis." Ex. 5,
at 5 (emphasis added).
The Williamson's claim that hand-watering will result in no wastewater discharge is unrealistic.
There is no such thing as a closed-loop ecological system. Some waste is always inevitable. And
even if the Williamsons did design a perfect, closed-loop system, there is always the possibility
of accidental spill. The Williamsons have provided no plan for dealing with such spills.
Even the Williamsons' own materials indicate that there will actually be wastewater. In their
response to public comments (Ex. 14, at 7), the Williamsons announce that they will be
"capturing condensed water with a dehumidifier" and that "Wastewater that cannot be reused
and captured in our facility would be from everyday tasks such as cleaning a cultivation room."
Id.
Needless to say, using wastewater as a cleaning solution is not consistent with the Washington
State rules for the disposal of waste water from marijuana facilities. Under the rules,
"Wastewater generated during marijuana production and processing must be disposed of in
compliance with applicable state and local laws and regulations." WAC 314-55-097 (Marijuana
waste disposal-liquids and solids).
Ecology has adopted guidelines for the discharge of marijuana wastewater (attached). Ecology
recommends using a publicly owned wastewater treatment works, or surface water discharge
pursuant to a Clean Water Act permit (NPDES permit), or spray irrigation pursuant to a state
wastewater discharge permit.
Jefferson County Hearing Examiner
February 25,2020
Page 7
Ecology has issued guidance (ECY 070-533, rev. Aug. 2016) that marijuana processing
wastewater should preferably be discharged into a municipal sanitary sewer. However, that is not
an option at the Williamson property. If the Williamsons intend to discharge on-site (as they
must, lacking any other option), they must either discharge to surface waters or the ground or
use spray irrigation.
Ecology's guidance states that surface water discharge is strongly discouraged and requires a
federal Clean Water Act permit, while spray irrigation requires the proponent "to submit an
engineering report to Ecology that describes AKART for the I-502 fmarijuana] facility and a
groundwater analysis of the site. Ecology would subsequently issue a state waste discharge
permit that would require monitoring the wastewater and the groundwater."
To our knowledge, the Williamsons have not obtained any of the required permits nor submitted
any of the engineering reports and groundwater analyses required by Ecology. The County
cannot issue any permit until they do.
The Williamsons apparently have no intention of evaluating their wastewater for compliance
with these requirements. Instead, they first denied the wastewater existed at all, and then
promised to use the wastewater as a cleaning solution. Use of wastewater as cleaning solution is
not one of the Ecology-approved disposal methods.
Finally, nowhere in the Williamsons materials have they demonstrated that the shared aquifer on
the Toandos Peninsula provides sufficient water capacity for their proposed marijuana operation.
Instead, the Williamsons claim that their commercial-scale marijuana producing facility will use
"approximately the same amount of water as the average American household." Ex. 14,at4-5.
But the Williamsons do not describe their water use on a per-plant basis, or give any other basis
for this claim. The "average American household" is not operating a commercial-scale marijuana
grow operation. The Williamsons must provide actual data of their water usage, not just blithe
assurance that they can grow marijuana on a commercial scale (and operate a bona-fide single-
family residence) with the same amount of water the average household uses for its daily routine.
The Williamsons have failed to show that their marijuana facility "will be served by adequate
infrastructure including roads, fire protection, water, wastewater disposal, and stormwater
control." The Hearing Examiner should deny the conditional use until they have made this
showing.
C. Harmonious and appropriate. Under JCC 18.40.530.1.a, a CUP may be issued only if
"[t]he conditional use is harmonious and appropriate in design, character and appearance with
the existing or intended character and quality of development in the vicinity of the subject
property and with the physical characteristics of the subject property."
There is nothing in the vicinity remotely like this project. The project would not be harmonious
or appropriate in design, character, or appearance with development in the vicinity. The
surrounding area is peaceful forest, zoned for residential uses. There is no place here for a noisy,
odiferous marij uana producing/processing facility.
Jefferson County Hearing Examiner
February 25,2020
Page 8
D. Merit and value. Under JCC 18.40.530.1j, a CUP may be issued only if "[t]he
conditional use has merit and value for the community as a whole."
Nothing in the Williamsons' application addresses this criterion. In their CUP application, the
Williamsons claim, without support, that their marijuana operation might "potentially" provide
jobs (Ex. 3, at2), but this claim conflicts with the claim in their Liquor Control Board license
that says, "This business will be ran and supported by the Williamson Family." Ex. 6, at 3.
The license does say the Williamsons will be hiring a grower, but there is no indication whether
this grower will be a full-time employee or merely a part-time, contract employee, or even yet
another member of the Williamson family. In short, there is no indication that any jobs will result
from this operation. Instead, it appears the Williamsons are operating a business for the benefit
of their own family, which is not consistent with the requirement that a conditional use benefit
the community as a whole.
The Williamsons also argue that their facility "can provide medicinal and recreational benefits to
adults. It also breaks down the stigma that surrounds the industry." However, there is no
evidence that the Williamsons' marijuana facility will provide medicinal or recreational benefits
to the community. The Williamsons have not committed themselves to sell their product to the
community, nor is there any evidence of a marijuana shortage in Jefferson County. Nor do the
Williamsons explain how their marijuana operation does anything to break down stigma against
the marijuana industry. On the contrary, by submitting a permit application that violates the
Jefferson County Code and Forest Practices Rules (discussed below), the Williamsons are only
contributing to an impression that the marijuana industry is dominated by scofflaws.
III. Industrial Use Regulations
Marijuana processing is as an industrial use. See JCC 18.15.040, Table 3- 1 .As an industrial use,
"[w]ater supplies, wastewater, and sewage disposal facilities adequate to serve the proposed use
shall be provided. Industrial wastewaters shall not be discharged into an on-site septic
system and are subject to waste discharge permit requirements established by the water quality
program of the Washington Department of Ecology." JCC 18.20.220(l)(b) (emphasis added).
The Williamsons' Liquor Control Board license no. 416544, Ex. 6, reveals that the Williamsons
may be processing marijuana into various forms of hash, kief, edibles, and other concentrated
marijuana products. The Williamsons' processing would involve treating marijuana with ice
water. steam distillation, glycerin, ethanol, hexane, and propylene glycol solvents.
As noted above, the Williamsons have made no provisions for disposing of the various liquids
involved in the processing of marijuana. Yet discharge of industrial wastewater requires a
permit, whether discharged to surface waters or groundwaters. See RCW 90.48.160.
The Williamsons' conditional use permit application (Ex. 3) says only that "We do not plan on
processing any oils that would require an extraction machine." That is scant assurance, since the
Jefferson County Hearing Examiner
February 25,2020
Page 9
Williamsons' LCB license authorizes them to engage in multiple other industrial processes than
just "oil processing" with the use of an "extraction machine." Note, too, that the Williamsons
merely say they "do not plan" on oil processing, not that they will absolutely refrain from oil
processing.
The staff report's recommended condition no.4 (Ex. 34) even contemplates the use of steam, ice
water, and carbon dioxide. All of this will produce wastewater, and all that wastewater must be
discharged in accordance with Ecology rules for industrial waste, not discharged into the septic
system. Yet, as described above, there is no provision for dealing with this industrial waste.
The Hearing Examiner should not approve a conditional use that contemplates and allows the
production of industrial wastewater without a plan to deal with the wastewater.
IV. Forest Lands Conversion
The Williamsons' proposed marijuana facility requires them to convert forest lands to a
nonforestry use. This, in turn, requires SEPA review and DNR approval, neither of which the
Williamsons have obtained. Until SEPA review and DNR approval are complete, the facility
cannot be permitted, because conditional uses require compliance with all state laws. See JCC
18.40.530.1.g.
Under the Washington State Forest Practices Rules: "'Forest land' means all land which is
capable of supporting a merchantable stand of timber and is not being actively used for a use
which is incompatible with timber growing." WAC 222-16-010.
When forest land is converted to a use incompatible with timber growing, the owner must obtain
DNR's approval of a Class IV-General Forest Practices Application (FPA). See WAC 222-16-
050(2)(a). The issuance of a Class lV-General FPA is subject to SEPA review. Id.
A landowner who converts forest land to a nonforestry use without obtaining an approved Class
IV-General FPA is subject to a six-year development moratorium on the property, during which
time no development permits may be issued. See RCW 76.09.460.
The Williamson property is heavily forested with mature, merchantable trees. As such, it
qualifies as forest land.
Further evidence that the Williamson property is forest land is that on May I l, 2010, DNR
approved FPA number 2610533 to harvest two acres of timber from this property. DNR only
approves FPAs on forest lands, not other types of lands, per WAC 222-16-050 (preamble).
The Williamsons' stormwater calculation worksheet reveals a total disturbed area of 30,41I
square feet. Ex. 5. Needless to say, the installation of two 5,000-square-foot structures, as well as
a new septic drain field, a new cabin, and a new driveway, are all incompatible with forestry, in
that there will no longer be commercial timber growing on the affected footprint of the property.
Jefferson County Hearing Examiner
February 25,2020
Page 10
Therefore, the Williamson project constitutes a conversion of forest lands and a Class IV-
General FPA, with SEPA review, is required before the application can be processed further.
In addition, if the County or DNR finds that the Williamsons have already converted part of their
land without the required FPA, then a six-year development moratorium is mandatory, and no
permits can be issued during that time.
V. Conclusion
For the foregoing reasons, the Williamsons have failed to carry their burden to demonstrate that
the conditional use is compliant with the code and state law. The Hearing Examiner should deny
the application with prejudice.
Very truly yours,
BRICKLIN & NEWMAN, LLP
[J.
Alex Sidles,WSBA No. 53822
Attorney for Chris Wilson
(206) 264-8600
sidles@bnd-law.com