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Home My WebLink AboutEXHIBIT_060JAM ES M. KENNEDY Jefferson County Prosecuting Attorney Philip C. I luntuckcr ( hwl_Civ l I)cnulr Prowculur Chrislopher k .Wicraf. Chicl'Crhiwml Dcpul�\ Piu,cculur Julian I SI ;\Iru ic. I?cpuR 1'10.\LT OJ' Anna K. I'hilhpti, Ocpul) ho cculoi Aou nn %V;okin<, Depuk Prowculor Mm v I %an,, Vic(m')mice, 1)cc Dcc Spann Victim Service, I NS:11111111i;.(hild Suppoil 1':IIIUICCmCI1L Via email Via LISPS March 10, 2020 Jefferson County Hearing Examiner McCarthy & Causseaux Stephen Causseaux 902 South 10"' Street Tacoma, WA 98405 Re: MLA18-00102 Williamson Marijuana Project 02/25/2020 Public Hearing Mr. Hearing Examiner - Jdlcr.;un Cnunl� Pnncculor's (Aicc 1820 Jcflcr,on SlrccL Po l Ofllcc 1Sox 1220 Poi l I o ntiend, N A 9816% Phone :(i6U138> 9180 I' iv 000) 385 9186 co jciicr., rolova u,'hro;cculnr R ICMM MAR 10 2U20 JEFFERSON COUNTY DCD This letter is submitted on behalf of Jefferson County in response legal correspondence received dining the MLA18-00102 / Williamson Marijuana Project ("Proposal") 02/25/2020 public hearing ("Hearing"). At the conclusion of the public hearing the record was left open for 2-weeks allowing counsel to respond to remaining issues. 1. Forest Practices Permit Is Not Reguired. During the Public Hearing and in written testimony, it was asserted that the Proposal requires a Forest Practices Act ("FPA") Class IV -General FPA as the Proposal converts the use of the property to a use which is incompatible with timber growing. The record was left open to submit further information on this point. After the Hearing, Jefferson County confirmed with the Washington State Department of Natural Resources ("DNR") that the Proposal does not require an .FPA Application/Notification as less than 5,000 board feet was logged from the subject property. DNR summarized their site visit and analysis as; March 10, 2020 Page 2 Provided the landowner uses this material for person use (i.e. firewood or milling boards on site) and does not sell them or trade them for goods or services, then the harvest that occurred is a Class I Forest Practices under WAC 222-16-050(3)(k) and does not require an approved Forest Practice Application/Notification (FPA/N). Email from Ross Goodwin, Forest Practice Forester, to David Wayne Johnson, Associate Planner Lead (March 5, 2020) (on file with author). DNR found that the logging and activity at the property was a FPA Class I activity, which does not require any FPA Application/Notification. Therefore, SEPA and DNR review/approval is not required as the threshold for permitting under the FPA has not been met. 2. The Proiceted poise Levels Do Not Unreasonably Impact Existing Uses in the Vicinity, of the Subiect ProperiX. During the Public IIearing and in written testimony, it was asserted that the environmental designation for noise abatement ("EDNA Class") for the subject property should be an EDNA Class A and not an EDNA Class C. EDNA Class C includes "[a] gri cultural and silvicultural property used for the production of crops, wood products, or livestock." WAC 173- 60-030(1)(c)(iii). EDNA Class A includes "[r]esidential". WAC 173-60-030(1)(a)(i). The noise issues relate to noise limitations under WAC 173-60-040. Under the more restrictive EDNA Class A, the noise limits are 55 dBA during the day and 45 dBA during the night. WAC 173-60-040. The Proposal's proponent, Tracy Williamson ("Williamson"), submitted a supporting noise study indicating a projected 47 dBA noise level during the night, which exceeds the EDNA Class A nighttime designation by 2 dB. Exhibit 19 at 10. The CUP approval criteria requires that the conditional use will not "introduce noise ... which unreasonably impact existing uses in the vicinity of the subject parcel". JCC 18.40.530(1)(d) (emphasis added). The CUP approval criteria adopts a reasonability test, not strict adherence to EDNA noise levels. Williamson's noise study indicates a projected 47 dBA nighttime noise level at the southern property line, which is above the EDNA Class A nighttime noise limits by 2 dB; however, as described below the noise study demonstrates that proposed use will not unreasonably impact existing uses in the vicinity. (1) The nighttime ambient noise level on the eastern property line (adjacent to Coyle Road) was an average of 49 dBA, in excess of EDNA Class A nighttime noise limits. Exhibit 19 at 10; (2) The only property line which will have a projected noise at or above the EDNA A Class daytime or nighttime noise limit is the southern property line. The southern property line is projected to have a nighttime noise level of 47 dBA, which is 2 dB above the limit. Exhibit 19 at 10; March 10, 2020 Page 3 (3) The area of the southern property projected to be at 47 dBA is a very small sliver of the southern property. Exhibit 19 at 11. The 47 dBA noise impacts on the southern parcel will not unreasonably impact any existing uses of the southern property. (a) The noise level on the southern property is projected to quickly dissipate below the 45 dBA nighttime EDNA Class A noise limit. Id. (b) The southern parcel at issue is not developed and there is no known use of the parcel. Exhibit 34 at 8 (emphasis added). (4) The minimum sound level variation that humans can generally perceive is around 3 dB. Exhibit 19 at 2. (5) Testimony at the Hearing from the noise experts established that noise studies generally have a 5 dB margin of error. To summarize, the CUP approval criteria is a reasonability test. The Proposal will not introduce unreasonable noise which impacts existing uses in the vicinity. The CUP approval criteria does not adopt a strict requirement that the noise must be at or below the EDNA Class A at the property line. Instead, it looks at the totality of the projected noise levels and surrounding community. The southern property at issue is not developed and there are no other property lines which are projected to have noise levels in excess of the EDNA Class A noise limits. Therefore, Williamson has met her burden that the projected noise levels do not unreasonably impact existing uses in the vicinity. However, in an abundance of caution and as authorized under JCC 18.40.540, if the Proposal is approved in full or part, the Hearing Examiner may modify the recommended condition of approval to require compliance with EDNA Class A noise limits at all property lines. Recommended condition #11 may be modified to "A building fan post -installation noise study shall be conducted and submitted to DCD to determine if actual sound levels are Feasonable within the maximum daytime and nighttime EDNA Class A noise limits at all property Iines, or whether mitigation will be required, prior to building occupancy" or similar language. 3. The Proposal Will be Served by Adequate Wastewater as the Proposal Includes an On - Site Septic S��stem, the Recomrncnded Conditions of Approval Incorporate_ Best Management Practices and Additional Conditions of Approval are Recommended. The property will be served by an on -site septic system. Ex. 34 at 4. Adequate wastewater generally refers to an on -site sewage system. See Chapter 8.15 JCC. The Proposal includes hand watering of the plants and does not propose discharge from marijuana plants to the on -site septic system. Ex. 5 at 5. To protect the environment and the on -site septic system, Staff recommended conditions of approval relating to wastewater. Below are the applicable recommended conditions of approval. March 10, 2020 Page 4 Recommended Condition of Approval 4 - Public Health - Solid Waste specific condition. Plant wastes: All parts of the cannabis plants (including root balls, planting medium, stems, branches, leaves, trim, etc.) that contain less than 10% THC may be disposed pursuant to WAC 314-55-097, and after providing the WSLCB traceability system 72-how notice, as either compostable waste or non- compostable waste: 1) Compostable Waste: dispose by grinding the cannabis plant waste 50/50 by volume with non -cannabis compostable waste, e.g., food waste or yard waste and then disposing at a permitted solid waste facility for composting. Additionally, other organic waste methods (for example, anaerobic digestion) may allow the following types of waste materials to be mixed with the cannabis plant waste: food waste, yard waste, and vegetable -based grease or oils. check with the solid waste section of the local health jurisdiction for approved facilities. OR 2) Non-compostable Waste: Dispose by grinding the cannabis plant waste 50/50 by volume with non -cannabis waste, e.g., paper, plastic, and dispose to a permitted solid waste facility for final disposition, including landfills, permitted incinerators or other facilities with prior local health approval. Check with the solid waste section of the local health jurisdiction for approved facilities. If cannabis waste (i.e., cannabis extraction pulp) was processed using steam, ice water, or carbon dioxide, it may be managed as compostable waste or as solid waste. If the cannabis waste contains 10olo or greater THC, it must be managed as a dangerous waste that is toxic. Recommended Condition of Approval 6 - The use of hydroponic or water based growing media is not approved, as the septic system is approved based upon the growing operation using soil as the growing medium. Recommended Condition of Approval 7 - This approval limits the grow operation to drying trimming and packaging of marijuana only. No processing of edibles, use of solvents, creation of extracts, bubble hash, oils or other infused products. shall take place on the property, unless Environmental Public Health grants approval of this use. Environmental Public Health may grant permission for processing of edibles at a later date if all requirements are met including septic and water. In addition to the proposed hand watering system and extensive recommended conditions of approval, Williamson must comply with applicable state law. If at a later time, Williamson needs to discharge wastewater related to marijuana production or processing they must obtain appropriate permits from the Washington State Department of Ecology and/or Jefferson County. WAC 314-55-097. March 10, 2020 Page 5 4. Decision Authority of the Hearing Examiner. Under Jefferson County Code ("JCC") 2.30.120(3), the Hearing Examiner may: (a) approve the requested permit or decision; (b) deny the requested permit or decision; (c) modify the requested permit or decision; (d) affirm the county's action or decision; (e) dismiss the county's decision or action; or (f) modify the county's decision or action. The examiner may grant part of the requested action, but deny another part of the requested action. The examiner may deny the requested permit or decision with prejudice (reapplication or resubmittal is not permitted for one year) or without prejudice (reapplication or resubmittal is permitted). The examiner may remand administrative appeals to the director for action consistent with the examiner's decision. JCC 2.30.120(3). (emphasis added). See also Jefferson County Hearing Examiner Rules of Procedure ("Rules of Procedure") Rule 6.1(c); JCC 18.40.530(1). The Proposal requests approval of a conditional use permit ("CUP") for "a cottage industry to produce and process cannabis in Rural Residential 1:20 ...". Ex. 34 at 1. The Proposal is being processed as a consolidated permit under JCC 18.40.030. See also RCW 36.70B.120. Consolidated permits allow the proposal to be adjudicated under the highest approval authority for the proposal. The Proposal seeks approval of three uses: (1) CUP for marijuana production; (2) CUP for marijuana processing; and, (3) a cottage industry permit for marijuana processing. Ex. 34 at 1; JCC 18.20.295(3); JCC 18.15.040 'Table 3-1. Under JCC 2.30.120(3), the Hearing Examiner may approve the entire Application, approve part of the Application, deny the entire Application, deny part of the Application, or modify the Application. This decision may be with or without prejudice. For the reasons detailed below, the Hearing Examiner may approve and deny this Proposal in part. For example, the Hearing Examiner may approve the CUP for marijuana production, subject to revised conditions and deny the CUP for marijuana processing and deny the cottage industry permit for the marijuana processing without prejudice. 5. Tlic Mari'unna Pro cessing Cotta c Ind ustry Permit Reg uires a Full -Time Bona -Fide Resident. As stated above, this Proposal seeks approval of the following three distinct uses under a consolidated permit review process: (1) CUP for marijuana production; (2) CUP for marijuana processing; and (3) a cottage industry permit for marijuana processing. Ex. 34 at 1; JCC 18.20.295(3); JCC 18.15.040 Table 3-1. The marijuana processing use requires a cottage industry permit. Id. The cottage industry standards require that a full-time, bona -fide resident operate the cottage industry. JCC 18.20.170(4)(a). The cottage industry standards for marijuana processing are incorporated into the marijuana processing CUP approval criteria. JCC March 10, 2020 Page 6 18.40.530(1)(g). While the record indicates a clear intent that there will be a full-time, bona -fide resident operating the cottage industry once the residence is completed, there is currently no full- time, bona fide resident on the property. The marijuana production CUP does not require a cottage industry permit. JCC 18.15.040 Table 3-1. Therefore, there is no requirement that a full-time bona fide resident operate a marijuana production CUP. Id. Should the Hearing Examiner find that the Williamsons' statements and actions regarding full-time bona fide do not meet the requirements of the Jefferson County Code, the Hearing Examiner may: (1) approve the marijuana production CUP (as the marijuana production CUP does not require a full-time bona fide resident) and deny the marijuana processing CUP and deny the marijuana processing cottage industry permit (with or without prejudice); or (2) deny the entire Proposal (with or without prejudice). If you have any questions or would like to discuss these issues further please contact me at awatkins&Ca jel7'Crson.wa.us or (360) 385-9248. Respectfully, Austin atkins Civil Deputy Prosecuting Attorney Enclosed: March 5, 2020 email Communication with the Washington Department of Natural Resources Cc: David Wayne Johnson, Associate Planner — Lead, Jefferson County Department of Community Development Alex Sidles, Attorney for Chris Wilson, Bricklin & Newman LLP Bert D Boughton, Attorney for Williamsons, Cross Sound Law Group Austin Watkins From: David W. Johnson Sent: Thursday, March 5, 2020 12:05 PM To: Austin Watkins; Dee Boughton; Tracy Williamson Cc: David W. Johnson Subject: FW: Williamson Parcel 601105013 - 9790 Coyle Rd FYI From: GOODWIN, ROSS (DNR) <ROSS.GOODWIN@dnr.wa.gov> Sent: Thursday, March 5, 2020 12:01 PM To: David W. Johnson <djohnson@co.jefferson.wa.us> Subject: Williamson Parcel 601105013 - 9790 Coyle Rd CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders. Good morning David, At your request I re -visited Jefferson County Parcel 601105013 (Williamson) on Tuesday, March 3rd. I confirmed that the small deck of logs on site is less than 5000 board feet. I also confirmed that the logs in this deck appear to correspond to the amount of land that was cleared. Provided the landowner uses this material for personal use (i.e. firewood or milling boards on site) and does not sell them or trade them for goods or services, then the harvest that occurred is a Class I Forest Practice under WAC 222-16-050(3)(k) and does not require an approved Forest Practice Application/Notification (FPA/N). If you have any questions regarding my site visit please feel free to contact me. Regards, Ross Goodwin Forest Practice Forester Olympic Region Washington State Department of Natural Resources 360-460-0900 rocs.&oodwin@dnr.wa.gov From: David W. Johnson<diohnson@co.Lefferson.w_a_.us_> Sent: Thursday, March 5, 2020 11:57 AM To: GOODWIN, ROSS (DNR) <ROSS.GOODWIN0dnr.wa.eov> Subject: Use this to reply to If you can't get my email to work. Thanks! ��ri':�ILi �;��a�il'd? JOII;-iSiill - �I FD AF' - ��Ci4?�I�?:)i �101)(i JCv�.Inr- nwoI Associate Planner - Port Ludlow Lead Planner Department of Community Development (DCD) Jefferson County 360.379.4465 DCD offers an online scheduling calendar to request uppointments, submit questions, and pay consultation fees on our website front page. Appointment times for' this new service are available Tuesday -Thursday from l pm-4:30i)m. Customers must request appointments ut leost 48 hours in advance. Walk-in hours are 10:.30am-12pm Monday - Thursday. All walk-in meetings as well as appointments require a minimum $50 for 30 minutes or $100 for 1 hour. Mission: To preserve and enhance the quality of life in Jefferson County by promoting a vibrant economy, sound communities and a healthy environment. ASAVE PAPER - Please do not print this a -mail unless absolutely necessary All e-mail may be considered subject to the Public Records Act and as such may be disclosed to a third -party requestor, kfterson County DepanW4M of C*ftl MNty Ogwlop nest SIPUARE®NE Slifer fiw4d4nq Stets Herz. 432srwrMxMb".W1.+1n116961 P im".I* WPN w+► ;1 ***Email may be considered a public record subject to public disclosure under RCW 42.56***