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HomeMy WebLinkAboutEXHIBIT_059CROSS SOUND LAW GROUP Shane Seaman, Attorney Dee Boughton, Attorney 18887 St Hwy 305 NE Suite 1000 Poulsbo, WA 98370 360-598-2350 March 10, 2020 Jefferson County Hearings Examiner Jefferson County DCD 621 Sheridan Street Port Townsend, WA 98368 Via Email to all parties: RE: Response and Argument regarding Application: MLA18-000102: ZON18-00039 -- Mr. Hearings Examiner, JEMRSON COUNTY DCD The following is in response to argument presented by Chris Wilson, by and through counsel, Alex Sidles. I. FACTS There are a number of important facts that should be clear from the staff report, expert reports and from testimony that was presented in the open record hearing on February 25, 2020. First, the applicant has an active building permit and is actively prosecuting the construction of his personal residence on the subject property. Second, the applicant has the clear intent to reside in and upon the property prior to engaging in any home based business/cottage industry. It is clearly not the applicant's intent to have employees reside on the property while he runs the cottage industry business from a different location. Third, the applicant is clearly a resident of the state of Washington as required by LCB rules. Additionally, it was clear from the staff report and from testimony that the amount of clearing done by the applicant was minimal and was not thought to require a Forest Practices Page 1 of 7 Application nor SEPA. Since the February hearing the site has been visited, and inspected, by a representative of Washington DNR. Based upon their inspection, it has been confirmed that clearing by applicant was of less than 5,000 board feet and therefore did not trigger the argued Forest Practice Application requirement. Confirmation from DNR is cited and provided by Jefferson County DCD, and. is incorporated herein by reference. A. The proposed action meets all of the criteria issuance of a Conditional Use Permit. The applicant has shown that the requirements for a CUP and a Cottage Industry Perin it have been met, and specifically regarding the following requirements, states as follows: i. Noise. The Jefferson County Code requires that a 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. JCC 18.40.530(d). Argument has been made that the applicant's noise study classifies the subject parcel as a class C EDNA parcel rather than a Class A EDNA parcel for purposes of Dept. of Ecology rules in WAC 173-60. The difference, as was made clear in testimony, is a total of 5 Decibels. It was also made clear that the scientific testing that was done to establish a base line, and in measuring sound in general, involves margins for inaccuracies. Testing accuracy could be as much as plus or minus 5 decibels. Also clear from testimony is the fact that the human ear simply cannot discern a difference of less than 2 or 3 decibels. Pursuant to the Jefferson County Code, the Examiner must determine whether noises or odors introduced will be reasonable or unreasonable. JCC 18.40.530(d). The applicant's noise study clearly shows that any anticipated noise generated from the subject parcel at night would be 47 decibels. The Dept. of Ecology standards for a class A property would be 45 at night. The Page 2 of 7 difference would be 2 decibels. The uncontroverted evidence before the Examiner is that a 2 to 3 decibel difference would not be noticeable or perceptible to a human being. The CUP requirements further indicate that any noises or odors must not unreasonably impact uses in the vicinity of the subject parcel. While noise measured in Db at the receiving property line is of interest, it is not controlling as to the CUP requirement. As the staff report makes clear, there are no significant uses on the adjacent properties which would be unreasonably impacted. The property which would have the most likely impact has not uses occurring on it at present, and the distance to any residential uses is over 600 feet. Clearly any anticipated noise generated by the proposed project is well withing the threshold of reasonableness given the anticipated levels and the fact that there are no residential uses closer than 600 feet. ii. Odor. Again, The Jefferson County Code requires that a 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. JCC 18.40.530(d). The applicant has provided an odor mitigation plan that has been thoroughly reviewed by ORCAA. This plan and the noise study have identified the fans and filters proposed for use and it has been approved by ORCAA. The odor mitigation plan, and ORCAA's approval clearly indicate that the proposed action and use can be permitted with conditions which will eliminate, or insure that the use will not unreasonably impact neighboring uses. iii. Water and Wastewater. Water use and wasterwater disposal as proposed in this project/action have been reviewed by Jefferson County Environmental Public Health. The conditions of approval proposed by in Page 3 of 7 the staff report adequately address the issues of water and wastewater. This is especially true in light of the clear testimony that the applicant does not, and will not process edibles, use solvents, create extracts, oils other infused products. This has also been proposed as a condition of approval. Further the applicant has made clear that they hand water plants only. This practice eliminates over watering, and thereby also eliminates waste water as the very small amount of overflow is used to "re -water" plants. This eliminates the need for waste water disposal, as there is no waste water. Water usage is clearly regulated in the proposed conditions and is subject to inspection by Jefferson County environmental health. The proposed use cannot exceed 5,000 gallons per day and the conditions of approval require installation of a Dept. of Ecology approved source flow meter. The Examiner could, if he so chooses, require additional inspection and compliance with environmental health inspection regarding any waste water generated. I1. The proposed action meets the criteria for a cottage industry permit. The Jefferson County Comprehensive Plan sets forth when and how a cottage industry is to be located within the rural residential zone: POLICY LNP 6.2 Permit cottage industries conducted by the owner or lessee of the property, who shall reside within the dwelling unit, as an accessory use within a single family dwelling or building accessory to a dwelling and which are accessory to the residential use of the property throughout the unincorporated portions of the County, subject to conditional use permit review procedures. In keeping with these policies, the Jefferson County Code requires that "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." JCC 18.20.170 (4)(a). Page 4of7 A previous decision regarding the proposal of Austin Smith has been offered as "authority" regarding the issues presented here. The Examiner should remember the relevant facts of the Austin Smith application and initial public hearing before applying similar reasoning in this case. First, and most importantly, Mr. Smith himself caused testimony to be adduced in the public hearing on his initial application, which clearly indicated that the Mr. Smith, the applicant, had no intention whatsoever to reside on the subject property in that case. It was clear that he intended to have employees reside in the home at question, and it was further clear that the applicant would run the business from Seattle or some other remote location. Based on those facts, the examiner denied the application and made findings regarding what would be required to show "residency" in a later application. The facts at issue here are very different than in the Austin Smith matter. It is clear, and uncontested, that the applicant intends, and has always intended, to make the property in question his permanent residence. To that end, the applicant has expended considerable resources in both money and time to create plans for his home, to seek a building permit, and to actually construct the residence, which is nearing completion. All of these facts support the applicants impending residence on the property. As cited above, the Jefferson County Comp. plan clearly contemplates that the cottage industry permitting process is subject to conditional use permitting standards. The examiner, in this case should grant the CUP for both the proposed marijuana grow and processing. The Processing portion of the permit should be made conditional upon obtaining a certificate of occupancy and showing proof to Jefferson Co. DCD that the applicant has actually moved into his home. Page 5 of 7 iii. Examiner's decision. The applicant agrees with Jefferson County regarding the Examiner's decision authority as set forth in county code, and stipulates that JCC 2.30.120(3) sets forth the examiner's authority and options. Among other things, the examiner may approve the requested permit(s), deny the requested permit(s) or modify the requested permit(s). Id. For the reasons stated above, and at hearing, the Examiner should approve the requested CUP and cottage industry permit. In the event that the examiner does not approve all requested permits and chooses to deny any portion of the requested permits, then the Examiner should do so without prejudice. The testimony and evidence before the examiner is clear that the applicant is suffering from a real and significant medical issue which limits his ability to work in other more traditional professions and/or fields. It is also clear that the applicant has a legitimate and bona fide intent to reside in the home that he is currently constructing on the subject property. For these reasons, dismissal with prejudice would cause undue delays which would create significant hardship for the applicant. Further, if the examiner chooses to dismiss any portion of the requested permits, the examiner should not adopt conditions which were made part of the Austin Smith decision. Regarding residency, the liquor control board's residency requirements are set out in RCW 69.50.331(1)(c). The statute requires residency for six months in the state of Washington before a license can be issued to an applicant. There is no requirement regarding residency at a specific location within the state. Id. Page 6 of 7 Respectfully, Bert D Boughton WSBA 22016 On behalf of the Applicant(s) CC: David W. Johnson, Associate Planner Jefferson Co. DCD Alex Sidles, Attorney for Chris Wilson Austin Watkins, Jefferson Co. Deputy Prosecuting Attorney Page 7 of 7