HomeMy WebLinkAboutEXHIBIT_061Reply to: Seattle Office
BRICKLIN & N E W M A N L L P
lawyers working for the environment
March 13, 2020 11
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MAR 13 1U1u 2-B
Jefferson County Hearing Examiner JEMRSON COUNTY DCD
Department of Community Development
621 Sheridan St.
Port Townsend, WA 98368
RE: Williamson Marijuana Project, MLA18-00102
Dear Hearing Examiner:
At the February 25 hearing, you allowed the applicant and County to submit written closing
arguments. You also gave my client, Mr. Wilson, the opportunity to reply. The applicant and
County submitted their closing arguments on March 10, 2020. This is our reply.
I. Noise
In their closing argument, the Williamsons say that "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." As the Williamsons are aware,
moving from Class A ("Lands where human beings reside and sleep") to Class C ("Lands
involving economic activities of such a nature that higher noise levels than experienced in other
areas is normally to be anticipated") would increase their maximum allowable noise from 45/55
dBA to 50/60 dBA. See WAC 173-60-040. Yet the Williamsons do not provide any argument that
their property should be a Class C.
The County, too, does not argue that the Williamson property should be a Class C property.
In general, issues not briefed are deemed waived. See Currier v. Northland Services, Inc., 182 Wn.
App. 733, 741, n. 5, 332 P.3d 1006 (2014). Therefore, it appears the Williamsons and County are
no longer arguing that the Williamson property should be a Class A property. Instead, they have
accepted that it is a Class C property, subject to the 45/55 dBA limit in WAC 173-60-040.
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Jefferson County Hearing Examiner
March 13, 2020
Page 2
We agree that the property should be a Class A property. As we argued in our closing argument,
submitted February 25, the fact that a person must "reside and sleep" at the Williamson property
demonstrates that it is a Class A property. In addition, the description of Class C properties makes
clear that t1Ze Williamson ptoperiy is not a Class C property:
• The Williamson property is not "covered by noise control regulations of the department
of labor and industries:"
The Williamson property does not preclude "uses typical of Class A EDNA." (On the
contrary,, it requ.res.: a: residential use.)
The Williamsons and County argue that even under the Class A limits, the Williamson project still
complies with the conditional use criteria, even though the County admits that the numeric noise
limits established by WAC 173-60-040 are exceeded. Their argument is that "the CUP approval
criteria adopts a reasonability test, not strict adherence to EDNA noise levels."
The Hearing examiner should dismiss this argument out of hand. An activity that is forbidden by
statute or ordinance constitutes a "nuisance per se ... not permissible under any circumstances."
Kitsap Cty. v. Kitsap Rifle and Revolver Club, 184 Wn. App. 252, 277, 337 P.3d 328 (2014). The
Hearing Examiner should not endorse the Williamsons' project as "reasonable" when even the
County acknowledges that the Williamson project's noise levels are forbidden by state regulation.
A use that violates the state noise limits is not permissible under any circumstances.
The Williamsons and County also argue that the noise exceedance is "only" two dB, which they
argue is too small a difference for the human ear to detect. However, as they themselves admit,
noise studies are only accurate to within 5 dB. This means the Williamson project could be as loud
as 52 dBA, far above the 45 dBA nighttime limit.
Moreover, as both noise experts testified, the Williamson noise study does not account for
additional fans inside the building to filter the air for odor control purposes, nor for noise
emanating through the building walls, nor that manufacturers' noise data was used instead of
independent, third -party noise data. All of these factors would tend to increase the noise levels of
the project above the Williamson noise study levels (which already demonstrate a violation even
without these increases).
The County suggests the Hearing Examiner repair the noise violation with a permit condition,
namely, post -installment noise testing. Post -installment testing is inadequate to demonstrate
compliance with the conditional use permit criteria:
Under the conditional use permit criteria, the applicant has the burden of proof to demonstrate that
the project will comply state law (JCC 18.40.530.1.g) and will not "introduce noise ... which
unreasonably impact[s] existing uses in the vicinity." (JCC 18.40.530.1.d.) For these reasons, the
Williamsons are required to demonstrate now, at the Hearing Examiner level, that noise will not
be unreasonable.
Jefferson County Hearing Examiner
March 13, 2020
Page 3
However, if noise compliance is made into a permit condition instead of being addressed now,
then the County has the burden to demonstrate, through an enforcement action, that noise will be
unreasonable or violate the numeric standards. See Hearing Examiner Rule 5.140)(iv) (in an
enforcement hearing, "the burden is on the department to demonstrate violations of the code
provisions").
The County's proposal to address noise compliance through post -installment testing allows the
Williamsons to escape their burden to demonstrate to the Hearing Examiner now that its project
noise levels will be acceptable.
In addition, post -installment testing deprives Mr. Wilson and the other interested neighbors of an
opportunity to comment on the type of testing done or to present their own, countervailing
evidence. That opportunity exists now, because this is a Type III land use hearing, but it would not
exist in an enforcement hearing.
Because post -installment testing shifts the burden of proof from the Williamsons (as required by
the code) to the County, while also depriving the public of the opportunity to comment on the
testing, post -installment testing is inadequate to demonstrate that state law will be complied with
and that the project will cause unreasonable noise disturbance.
Finally, as Mr. Lilly testified, the background noise study the Williamsons commissioned
measures background noise very close to the road, thereby artificially inflating the level of
background noise. In reality, this neighborhood is quiet and rural, such that the additional noise
from the Williamson facility will be quite noticeable.
II. Wastewater
The Williamsons still have not demonstrated adequate provision for disposing of wastewater as
required by JCC 18.40.530.1.b. In their closing arguments, the Williamsons are back to asserting
that hand -watering means no wastewater at all. This contradicts the Williamsons' earlier statement
in Ex. 14, at 7 that there will be wastewater which will supposedly be reused and captured. (The
details of this supposed recapture and reuse system are nowhere in the record.)
The Williamsons would have the Hearing Examiner believe that there will be no wastewater ever,
not even from accidental spills or other emergencies. This argument is contradicted by their
statement that there will actually be wastewater but it will be somehow reused. The Hearing
Examiner should find that there is nothing in the record to demonstrate adequate provision for
disposing of wastewater.
III. Odor
The Williamsons claim that their odor control plan was "thoroughly reviewed by ORCAA." This
is incorrect. ORCAA's review was anything but thorough.
Jefferson County Hearing Examiner
March 13, 2020
Page 4
There are no structural drawings of the buildings to enable the Hearing Examiner to evaluate the
effectiveness of the proposed air 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 odor plan will do
anything at all to reduce the odor of marijuana production and processing.
Furthermore, as we noted in closing, the odor control plan calls for interior circulating fans and
filters which do not appear in the noise control plan. The Williamsons do not appear to be serious
about supplying interior fans and filters.
Even ORCAA's letter to the Williamsons (Ex. 16) approving the odor control plan is based on
"[ORCAA's] understanding and expectations [that] the grow and production buildings are situated
as far away from neighbors as possible to lessen the likelihood of odor impacts." Yet, as the
neighbors to the south, the Lanums, note in their public comment (Ex. 10, at 50), the Williamson
facility is just 25 feet from the Lanums' property line —hardly situated as far away as possible.
The Hearing Examiner should find the odor control plan is inadequate, because it lacks specificity
and contradicts the noise control plan such that the Williamsons cannot actually achieve both odor
control and noise control (because the project is already too noisy even without interior fans), and
because the facility is not located as far as possible from the neighbors.
IV. Bona Fide Resident
The Williamsons argues 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."
The applicant's inability to work in other, more traditional professions is irrelevant to the question
of this CUP. As the Williamson family members testified, they are already running a marijuana
business without a CUP. Moreover, "necessity" is not one of the permit criteria.
By contrast, the bona fide, full-time resident requirement is one of the cottage industry permit
criteria and, therefore, also one of the CUP criteria. See JCC 18.20.170.4.a (cottage industry
standards); JCC 18.40.530.1.g (CUP criterion requiring compliances with all applicable provisions
of code); JCC 18.20.295.4.c (marijuana processing is a cottage industry in rural residential zones).
Because the residency requirement is a CUP criterion, the burden is on the Williamsons to
demonstrate, now, that a bona fide, full-time resident exists on the property. All parties agree no
such residency exists currently.
At the hearing, the Williamsons suggested the Hearing Examiner could approve the CUP the
month after one of the family members moves in. In their closing arguments, however, the
Jefferson County Hearing Examiner
March 13, 2020
Page 5
Williamsons and County do not raise this suggestion again, nor is it a good one. A single month
of residency is not enough to establish that the residency is both "bona fide" and "full time."
In its closing, the Williamsons argue that the Hearing Examiner should not require the same
evidence of residency that he required of Austin Smith. In particular, the Williamsons argue that
the six-month residency requirement, which the Hearing Examiner took from RCW
69.50.331(1)(c), should not be applied here, because the statutory residency requirement is only
for state residence, not residence at a specific location.
The Williamsons' argument misses the point. The statute may only require residence within the
state, but the Jefferson County Code requires bona fide residence at a specific location. The state
law six-month duration is a per se standard for determining the bona fides of a residency claim.
The Examiner is well within the law to use that as a standard of bona fide intent given the absence
of a numeric standard in the county code.
Moreover, the cottage industry permit criteria require a bona fide, full-time resident now, at
application time, not later on. As with the noise issue, the burden is on the Williamsons to
demonstrate that a bona fide, full-time resident currently exists, not that one could potentially exist
in the future.
The Williamsons argue that, unlike Austin Smith, there is no reason to question the sincerity of
the applicant's desire to install one of its family members full-time at the property. On the contrary,
there is good reason to be suspicious of the bona fides of the Williamsons' desire to reside on the
property:
The Williamsons have been operating a marijuana business for years in an industrial zone without
ever feeling a need to have one of its family members live there. The Williamsons' family member
has, presumably, been residing in some other residence during all this time.
Also, the Williamsons' own testimony confirmed that they would not have bought this property if
it could not be used for marijuana —in other words, housing was only a secondary concern, not the
primary concern.
Third, the Williamsons have never explained what will happen to the current residence of its family
member. The Williamsons have never indicated that the current residence will be sold or otherwise
become unavailable.
In other words, while it is clear the Williamsons have a bona fide interest in running a marijuana
business, it is not clear any of the Williamsons have a bona fide interest in spending their lives in
the remote, rural area on Coyle Road. For this reason, the Hearing Examiner should require a
minimum of six months' residency, supporting by documentation that the residency is bona fide
and permanent (as opposed to a fig leaf), meaning that Luke Williamson lives on Coyle Road and
nowhere else.
Jefferson County Hearing Examiner
March 13, 2020
Page 6
Finally, the County suggests that, even if the permit for marijuana processing cannot be approved,
the permit for marijuana production can be, because production is not a cottage industry. While
this is a correct reading of the law, it is not a correct reading of the Williamsons' permit application.
Under the County Code, a "processor" is one who processes, packages, and labels marijuana for
sale to retail or wholesale outlets. JCC 18.20.295.2.b (definition of processing). By contrast, a
"producer" is one who produces marijuana and only sells at wholesale to processors or other
producers. JCC 18.250.295.2.c (definition of producing).
The Williamsons' application was for both production and processing. The processing here will
take the form of packing and labeling marijuana products for sale, whether retail or wholesale. See
Ex. 3, at I (description of conditional use, "processing and packaging of recreational
marijuana... includes drying, hand trimming, and placing the marijuana in a package"). The
Williamsons have been extremely clear throughout their application and during testimony that they
are both a producer and a processor. In fact, of the 10,000 square feet for which they are seeking
a permit, 5,000 square feet will be devoting specifically to processing. See Ex. 14, at 12 (document
page 10, PDF page 12).
If the Williamsons had wanted to be permitted only as a producer, they should have submitted a
different application. They did not do so, and in fact, the County's suggestion to permit production
but not processing is not even endorsed by the Williamsons.l
In sum, there is no bona fide, permanent resident, so the CUP cannot be approved. If and when the
Williamsons are able to marshal evidence that a bona fide, permanent resident exists at the
property, they may submit a new application.
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,
' As noted above, operating as a producer instead of a producer/processor would severely limit the Williamson'
ability to market their product. Nothing in the record supports the Williamsons' ability or willingness to subject
themselves to such limits.
Jefferson County Hearing Examiner
March 13, 2020
Page 7
BRICKLIN & NEWMAN, LLP
Alex Sidles, WSBA No. 53822
Attorney for Chris Wilson
(206) 264-8600
sidles@bnd-law.com
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