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HomeMy WebLinkAboutMLA18-00102 Williamson HE final reportCJ ING JEFFERSON COUNTY 621 Sheridan Street Port Townsend, WA 98368 OFFICE OF THE HEARING EXAMINER FILE NO.: APPLICANT/OWNER: 2wdilltd, 43 SUMMARY OF REQUEST: JEFFERSON COUNTY REPORT AND DECISION MLA18-000102 — ZON18-00039 TYPE III CONDITIONAL USE PERMIT (CUP) Tracy Williamson 2005 N.W. Peterson Road Poulsbo, WA 98370 David Wayne Johnson, Associate Planner Conditional use permit and cottage industry permit to process cannabis and a conditional use permit to produce cannabis on a 5.48 acre parcel under State License Number 416544. The project includes two, 5,000 square foot buildings (100 x 50 feet) and one, 840 square foot (14 x 60 feet) maintenance building. 2,000 square feet will be used for processing cannabis and 8,000 square feet will be used for production (growing) of cannabis. The application is for parcel number 601-105-013 in Section 10, Township 26N, Range 1 W, WM, Woodway Large Lot Subdivision Lot 3, located at 9790 Coyle Road, Quilcene. SUMMARY OF DECISION: PUBLIC HEARING: All requests denied without prejudice. After reviewing the Jefferson County Department of Community Development Staff Report and examining available information on file with the application, the Examiner conducted a iWN public hearing on the request as follows: The hearing was opened on February 25, 2020, at 5:00 p.m. Parties wishing to testify were sworn in by the Examiner. The following exhibits were submitted and made a part of the record as follows: SEE ATTACHED INDEX LIST The Minutes of the Public Hearing set forth below are not the official record and are provided for the convenience of the parties. The official record is the recording of the hearing that can be transcribed for purposes of appeal. DAVID JOHNSON appeared, presented the Department of Community Development Staff Report, and introduced Exhibit 35, a Certificate of Mailing. He then reviewed the law and the procedure of how we got here. The regulatory requirements are the conditional use permit (CUP) criteria. Staff finds that the application meets the code and will not have an adverse impact on the area. The applicant is requesting approval of a cottage industry and a CUP, and submitted a completed application for both on March 4, 2019. The Staff Report and applicant's submission cover the concerns of the neighbors. The Jefferson County Code was amended to eliminate the criterion that prohibited uses that violate Federal law. The County does not enforce CCRs. He then discussed the CUP criteria and noted that the project is consistent with the cottage industry criteria as it is an allowed use in the applicable zone. Vegetation will screen the buildings from view, and the use is an approved use in a higher density zone, i.e. RR1:5. Mr. Johnson visited the site of another facility and could not see it, heard no noise, and smelled nothing. In the present case no one will see the buildings with the proposed screening and landscaping. The traffic associated with the business will not impact the roads. Concerning noise, he recommends a condition of approval that the applicant provide a noise study following commencement of operations. ORCAA has approved the odor control plan. Staff recommends approval subject to compliance with conditions. Upon questioning byALEX SIDLES, attorney at law representing Chris Wilson, Mr. Johnson referred to the proposals of hand watering and best management practices for industrial uses. However, nothing is in the record. Concerning forestry, because the applicant is clearing less than two acres, they do not need a forest practices permit. If more than two acres are cleared, then they do need the permit. However, only .68 acres were cleared. He is unsure of the number of board feet harvested. DNR indicated that it would be substantially less than 5,000 board feet. Upon questioning by AUSTIN WATKINS, deputy prosecuting attorney, Mr. Johnson responded that Condition 6 prohibits hydroponic growing. Conditions 2, 3, 4, and 8 are from environmental health. 2X TRACY WILLIAMSON appeared and testified that in 2013 she had to find a new career. They currently operate a marijuana business in an industrial area, but rents continue to rise. They cannot afford a commercial space for growing. They purchased this parcel for use as a home and a marijuana growing and processing business. That's why they request a cottage industry. Marijuana is the most regulated of all agricultural crops. Marijuana is similar to any other nursery and she then described their business. They will abide by all conditions of approval. Upon questioning by MR. SIDLES, Ms. Williamson testified that they have been upfront since they purchased the property. They would not have purchased the property if they couldn't use it for a marijuana business. They propose a flower based business only, although their license allows oils and extracts. They don't have the expertise for the later. Marijuana plants do not like a lot of water. LUKE WILLIAMSON appeared and read his statement into the record. He and Jessie will work fulltime at the business. JESSIE WILLIAMSON appeared and read her statement into the record. They have found that having their business in an industrial area is very expensive. Agricultural crops do not belong in an industrial area. Here, they found that they can build a house and that the zoning is consistent. Light pollution will not occur as all lighting will be inside. ADAM JENKINS appeared and testified that he was retained by the applicant to provide a ventilation strategy. The noise analysis was conducted in accordance with WAC 173-60. Agricultural uses are classified as Class C and the adjacent, residential parcels as Class A. The sound level limits for the business are 60 dB(A) during the day and 50 at night. They took ambient noise levels near the south property line for three days. The ambient readings were 60 dB(A) during the day and 49 at night, which is consistent with the WAC standard. They reviewed fans and considered other options before settling on the present proposal. They applied the mitigation and found that the highest dB(A) reading is 47 at the south property line, which is less than the required 50. He also considered the noticeable noise increase of three dB(A) and found no compliance issues. Upon questioning by MR. SIDLES, Mr. Jenkins testified that the use will require ventilation and the agricultural use meets the definition of Class C. They will use the site for an agricultural use. He was not aware of the residential uses, but they are Class A. However, such does not change the EDNA. AUSTIN WATKINS then appeared and testified that the Class A to Class A is based on the zoning of parcels, which would be 55 to 45. The Willamsons do have a residential use, but the County defaults to the use proposed, which is agriculture. MR. JENKINS then testified in answer to Mr. Sidles questions that page 9, Table 7, of his report shows that if the site were LOS A, they would need a 45 dB(A) limit. Here they have a 47 plus or minus three. It is unlikely, but possible that it would get as high as 50. They will use a gas fired heater or internal fans that he was not aware of. The eight, exterior fans will create all of the noise, but other internal fans could increase the noise. They are working off the blueprints of the building. Page 11 consists of the only drawing. It does not li" show the wall materials and doesn't account for any of the noise absorption by the building walls. Upon questioning by DEE BOUGHTON, attorney at law representing the applicant, Mr. Jenkins testified that the change of two to three dB(A) is not noticeable by people. A five to six dB(A) change is substantial. Concerning the building walls, no equipment within the building generates sound. They are getting the noise from the fans outside of the building. The applicant proposes four fans per building, two drawing air in and two pulling air out. COLIN McKINLEY appeared and testified that he owns and operates a cannabis business within the RR zone. He has run the business for five years and has no employees. He and his wife run the business and have no impacts on the neighbors. He is familiar with fans and noise and believes it preposterous that fans within the building could impact the neighbors. Their neighbors can hear a lawnmower, but do not hear their fans. One cannot hear the fans outside of the building. Concerning water, he previously harvested water from his house and used it on his farm. He abandoned this method as the farm doesn't need that much water for the plants. An indoor, hydroponic farm needs about ten percent of the spray used for irrigation. The neighbors will not know this farm is operating. An industrial area for a marijuana business is not good as the plants suck up contaminants. Cannabis has grown all around us for years, but we did not know it because it was illegal. Concerning waste material, ecology told him to distribute it all around the parcel. GENE BALL appeared and testified that the nutrients used for agricultural crops are expensive and are not used in excess. An indoor farm produces no wastewater pollution. Concerning devaluation of property values, we can believe things, but we need substantive facts to show the reduction. According to real estate brokers, property values are increasing. The County encourages this type of use, as we need more rural land uses. This is an extremely remote area, served by a one way road, and not in the center of town. His dishwasher has a low noise rating of 46 dB(A). He is unsure as to when it is running. He supports agricultural uses and RR businesses. Industrial area soils create a disadvantage. JERRY LILLY, acoustical consultant for 30 years, appeared and testified that he had reviewed the applicant's noise study. He noted that the noise ordinance is based on the zoning of a parcel and not its use. A residential dwelling built in a commercial zone does not get the benefit of the residential use. It is his opinion that the maximum dB(A) is 55 day and 45 night. The applicant's study shows an evaluation of noise levels for three days at a site near Coyle Road. Such location over estimates the noise level in the area. People won't build near the road, as most existing homes are 300 to 500 feet away. The ambient noise level could therefore be lower. In the middle of the night the ambient level would be in the 30s, which affects the hourly average levels. The ambient dB(A) will be quite a bit lower than in the report. There is insufficient information in the report for him to verify the noise level. They measured noise from two supply fans and two exhaust fans. They will need a mechanical engineer to ensure negative pressure as proposed. They don't know how the building will be constructed. For Austin Smith they evaluated noise levels for all openings. If the building is steel and air tight, they could measure the noise from the fans. 4X He referred to the colored pictures where two fans are shown on the sides of the building. They probably have one fan within 25 feet from the property line. A fan 25 feet from the property line generating only 45 dB(A) is not realistic. In Smith, they had negative pressure with fans on the opposite side of the building. Here, they obtained the fan noise data from the manufacturer and were only given one set of data. No one fan will make the same amount of noise at different locations. Also, manufactures test their fans in the laboratory. Fans create two types of noise: the exhaust from the building and the supply into the building. The exhaust can be three to five decibels louder. Upon questioning by MR. BOUGHTON, Mr. Lilly responded that he was hired by Mr. Sidles and that Mr. Sidles' clients oppose the project. The average distance from the road to existing houses is 300 to 500 feet. He went to Google Earth and got the dimensions. He did not visit the site and made no measurements. He went to the manufacturer's website, called the manufacturer, and saw photographs. We must test fans on the site and not in the lab to obtain an accurate reading. Fans will make a different amount of noise. There is noway to show the Examiner how much noise will awaken people. A condition of approval requires a noise study. It is not impossible to obtain the noise readings now. Upon questioning by MR. WATKINS, Mr. Lilly testified that he routinely interprets the WAC regulations in his way. An agricultural use is allowed outright in the zone. MR. JENKINS reappeared and testified that the road is close to the warehouse, and therefore he made his readings closer to the road. Fan noise readings reduce over distance at a faster level, but traffic noise remains louder for a longer distance. Fans get quieter faster, almost twice as fast as vehicles. He took his measurements at the location where the fans are the loudest. He could supplement his report with greater distance measurements. Concerning the negative pressure, the mechanical engineer in his firm adequately sized the fans to ensure negative pressure. JOMAIN EGGERT appeared and testified that she resides on Coyle Road and is a five year resident. She can smell marijuana from processing areas. Why not locate the business in an industrial zone? Here, we have different regulations. People who buy homes in the RR zone have certain expectations. A cottage industry is not a subordinate use. The applicants wanted a cottage industry all along. Concerning the odor permit, there are no regulations as to how to report a violation. The problem is with permit compliance. She and her neighbors want clear air, water, and quiet. STEVE BATE who resides downhill from the project appeared and testified that he cannot see the other pot farm due to its location in an area below a 60 foot drop from the road. This site abuts DNR property. At night he can hear owls and wildlife in the bay. The area is rich in wildlife. He travels to his home along Ken's Way. This farm will set a precedent for others and will allow an industrial use in the area. Approval will move an industrial use into a rural area where there is little enforcement. The site is 30 minutes from the fire department and a longer distance from the police department. It will attract criminal activity far away from any government enforcement. 5X CHRIS WILSON appeared and testified that Mr. Sidles represents him and his wife. Mr. Johnson has been diligent in reviewing the application in accordance with the process. He reviewed the ORCAA approval in Exhibit 16 and found that it does not represent a complete approval. ORCAA's expectation of the location of the buildings as far as possible from the property line is not met by their location at the southeast corner. The adjoining property owner may wish to retain a residential use at that site. ORCAA also assumes air tight buildings. He noted four exhibits addressing property values to include Exhibit 28, pages 1 and 2 that show loss of property values and the fact that odors discourage home buyers. Exhibit 30, page 2 shows that 27 percent of grow houses have difficulty in selling their parcels, and 33 percent have difficulty where recreational marijuana was grown. Some others made no disclosure. VICTORIA GALONTI appeared and testified that it is good to see more businesses, including those where people live, but she questions the industrial category. She noted odor up and down Coyle Road, and felt that there must be a large number of skunks being hit on the road. However, it was the odor from the existing marijuana operation. She can smell the odor at the current location. She questioned whether the applicant will respond to complaints and to whom residents would direct their complaints. DR. JAMES OLSON appeared and testified that the business will create multiple hazards. Ten thousand square feet of building is not a cottage industry. How can it compare with a vegetable stand that needs adequate noise, light, water, and odor mitigation? Marijuana odors are a combination of rotten eggs and skunk cabbage. Who will respond to enforce the odor issues? Other issues include truck traffic, attractive nuisance, vandalism, and loss of property values. He believes people were misinformed about the project, and most listened to what the applicants had to say. RYAN SCHROEDER appeared and testified that he cares deeply about the land and has spent his entire life protecting it. The applicants propose an industrial activity, not a cottage industry. He passes grow operations and can smell the odor hundreds of yards away. The wind travels in various directions due to the water. No system exists that will protect them from the odor. CHUCK DOLAND appeared and testified that he resides approximately three miles from the site. He is affected as a resident in the rural zoned area. It was the intent of GMA to reduce sprawl. The applicants are moving to a residential area only to save money. While the applicants assert that the building will be air tight, it will have significant ventilation. They propose inserting an industrial use into the area. It will draw the criminal element that break in to add to their supply. The parcel is 50 minutes from the nearest police station. BONNIE STORY appeared and testified that she is the closest resident to the project. She does not want the door open for this project. She referred to the CCRs, and that she complies with both the CCRs and the code. This use is way out of character for the area. It is a warehouse, not an agricultural use. It is not a barn, does not grow vegetables, and is not a fruit orchard. It does not match the rural character and represents a large, land use 6X change. It is not a cottage industry. She has four specific concerns regarding the project. It is not now a great smelling place. She can smell marijuana even with the windows up. The other marijuana use is located on about 40 acres. It is properly sited due to the distance from the road, and creates no noise, and no odor control is needed. It is a model. The proposed business will affect her property values. It will be a grow house not another house in the neighborhood. They are not in compliance with ORCAA. The buildings are not as far away from the property line as possible, but are close to both the property line and the road. The business will create crime and the police department cannot get there within an hour. People will try to break into the place, and it will be a magnet. DCD has led these applicants down the primrose path. JONNIE TOWNHALL appeared and questioned the amount of pesticides and herbicides the applicants will use. It is beyond belief that ecology told them to spread the growings around the ground. Pollutants will eventually drain into Hood Canal. GARY WILLIAMS appeared and testified that he resides across Coyle Road from the project. He referred to JCC 18.40.530 that sets forth the CUP criteria and allows approval only if all criteria are met. One criteria requires that the use be harmonious and appropriate with other uses in the area. Nothing is harmonious about it. It is proposed for a RR zoned area. The RR zone covers beautiful areas in the County that are also fragile. Uses like this will cause a loss of market value. Also, the CUP cannot have a substantial adverse impact. Nothing is harmonious and appropriate for this use. The use will create an attractive nuisance which the County Commissioners recognized. The use will also violate Federal law and therefore the County can't issue a permit. The next door lot is for sale, but no one will buy it for residential purposes. VICKI NIEZEREM appeared and testified that she owns an adjacent parcel and recommends denial as the project does not meet the criteria. The cottage industry criteria requires an applicant to reside at the site. They are not residents. The outreach to the community was performed because of a recommendation from the County. They will not use the site as a home, and the proposed use is not appropriate. Beautiful homes exist in the area and this use will become a blight. Her concerns include odor, because pot stinks. They cannot mask the odor and it will permeate everything. Neighbors of other marijuana grow operations have strong objection to the smells. The noise will be bad as fans create a roar. The applicants must know that crime will occur as they are required to construct an eight foot tall fence between buildings that look like a box. The project will affect property values as no one will buy any lots. The articles that talk about the marijuana parcel do not consider surrounding parcels. The business represents an injustice to the neighborhood. The CUP is proceeding without ownership of a home on the site. VIGO HENDERSON appeared and testified that the Marrowstone building was 150 feet from Flager Road. This building is 25 feet from Coyle Road. Concerning emergency access, the police department is 22.2 miles away and it takes them 32 minutes to get to the site. Officers can't go much faster on the roads. Concerning property values, the neighboring property owner to the south of the Flager Road project could not sell her 7X property. When the applicant abandoned that site, the property sold immediately. He talked to appraisers and real estate brokers regarding property values and the difficulty in selling parcels near a marijuana grow operation. They would not testify, but agreed that property values will fall. CARL GONNELLA appeared and testified that he has no objection to the applicants' business, but it can't be run from a home in the RR zone. The ordinance lists marijuana as an agriculture use, but it is a mixture of agriculture and industrial. 75 percent of the property in the County allows marijuana business outright. DCD did not take into consideration property values, but the CUP criteria requires that they do so. This use is commercial and is not meant for agricultural property. Studies about retail marijuana sales and dispensaries are irrelevant. Another study shows that home values within .5 mile of a marijuana grow operation have lower values. This neighborhood is the least desirable option for such a business. A buyer on Marrowstone bought an adjacent property after the appeal period had run. No one wants to live next to a smelly, noisy facility. The applicants have not satisfied the property value issue. KATHLEEN WALDRON appeared and testified that they have tried to change the JCC, but have not succeeded. This project will set a precedent as others will want to locate on RR sites. CAROL WORKMAN appeared and read her statement into the record that included issues regarding crime. JESSIE WILLIAMSON reappeared and testified that they do not compost any materials on site. They use airtight bags. They shred the plants, mix them with soil, and take them to a landfill. They located the buildings based upon the topography of the site. If they move them farther back, they move them into a steep ravine. The plants are grown on a table, and they capture and reuse all of the water. They will have a maximum of four employees. MR. JOHNSON reappeared and testified that the County does have a code compliance officer to respond to odor issues. They have received no odor complaints from the public for any marijuana grow facility. They can't respond if there is no odor complaint. However, if violations occur, they can revoke the permit. They rely on neighbors to advise them of odor issues. Marijuana growing is an agriculture use. Page 2 of the ordinance refers to it as a type of agriculture use. The County does not regulate property values directly. Staff agrees that the EDNA is not residential. It is a Class C EDNA agriculture use. No evidence from the Sheriff's Office shows that these type of uses are crime magnets. A robbery at a retail shop did occur, but allegations of crime associated with this business amounts to fear and speculation. The County does prohibit relocating an existing business. MR. BOUGHTON reappeared and testified that the applicants are requesting a CUP and cottage industry permit. The project meets the CUP criteria. It creates no harm. The use is agriculture and the zoning is rural. The residence is a permitted use. They propose a rural 8X use and nothing is better than a farming use in a rural area. The use is different as to the type of farming. It is similar to a greenhouse, but marijuana has an historical stigma. The building setbacks are 100 feet and 25 feet from the side yards, 43 feet from the road, and 250 feet from the rear yard. The use will not be seen, heard, or smelled. They have obtained ORCAA approval and submitted a noise study. Mr. Jenkins testified that the structure was designed by a mechanical engineer in his firm and that the building will have negative pressure. The mechanical engineer assured of that, and not him. Mr. Lilly testified that they can tell what the noise levels will be. He agrees and notes the Staff Report condition that requires a noise study. Concerning movement from an industrial area, nothing in the County code restricts the selection of property. They desire a place for Luke to live and provide for himself. The agriculture use is perfect. The house is well under construction as the structure has a roof, siding, and windows. They have a legitimate building permit in hand. He has no objection to a condition requiring the final permit and occupancy of the home. Concerning Condition 9, he has no problem with three off site employees on the site unless approved by the Health Department. He can support Condition 11. MR. SIDLES reappeared and testified concerning the cottage industry that the Examiner cannot approve a cottage industry without anyone living there, and that a cottage industry is separate from the CUP. There is no such thing as obtaining code compliance with a condition. They must meet it now, today. He referred to the Austin Smith decision and the Decision on Reconsideration that are relevant here. Smith had a single-family residence on site, but no evidence showed that Mr. Smith was a resident. We must apply the same level of scrutiny here. Time is needed to establish residency. A one month residence does not show "full time", and in Smith the Examiner required six months, as the LCB requirement is six months. Concerning the CUP, Mr. Lilly provided a written report of Mr. Jenkins' study. The EDNA Class C allows significant noise. The primary use is residential, and the balance is agriculture. The proposed use puts it in a Class A EDNA. No evaluation of sound through the walls or of the interior fans were considered. Exhibit 16 is the odor control plan which requires them to change filters. The wastewater must meet ECY guidelines on marijuana. They can't say that they will not have an accidental spill, as they want to discharge to the on -site sewer. When they spray, they will need a permit from ECY or the Feds. Residents have concerns regarding forest land conversions and whether the applicant needs a forest practices permit. Mr. Johnson indicates that the standard is two acres, but it also requires less than 5,000 board feet. It is unknown where the two acre standard came from. The WAC refers to a parcel size of less than two acres. A forest land conversion requires SEPA review. No one spoke further in this matter. The Examiner left the record open for two weeks for closing arguments by the parties. NOTE: A complete record of this hearing is available in the office of Jefferson County Department of Community Development. 9X FINDINGS. CONCLUSIONS, AND DECISION: FINDINGS: 1 The Hearing Examiner has heard testimony, admitted documentary evidence into the record, and taken this matter under advisement. 2. State Environmental Policy Act (SEPA) Review: The project is categorically exempt from SEPA review pursuant to Section 197-11-800(1)(b)(iii) and Section 18.40.750(1)(c) of the Jefferson County Code (JCC) (flexible minor construction exemption), as the buildings are for agricultural use and under 30,000 square feet. Alternatively, this project is exempt pursuant to WAC 197-11-800(1)(d) and JCC 18.40.750(1)(d) if any part of the application is interpreted to be a commercial use. As construction of the buildings are exempt, the land use action is also exempt pursuant to WAC 197-11-800(6)(a). 3. Notice of Application mailed to adjacent property owners and agencies: March 12, 2019 (Exhibit 8); Posting of Notice on -site by Staff: March 12, 2019 (Exhibit 9); Publication of Legal Notices: March 13, 2019 (Port Townsend -Jefferson County Leader); The record was left open for 14 calendar days from March 13, 2019 until March 27, 2019 at 4:30 p.m. for written closing arguments. 4. The applicant, Tracy Williamson, representing the Williamson family, has acquired a possessory ownership interest in a generally rectangular, 5.48 acre parcel abutting the west side of Coyle Road, north of its intersection with Kens Way and Blueberry Hill Drive on the Toandos Peninsula in unincorporated Jefferson County. The rectangular portion of the property proposed for development abuts Coyle Road for approximately 264 linear feet and expands to 273 feet at the west property line. The parcel measures 806 feet in depth. A triangular portion of the parcel that extends approximately 170 feet to the north along Coyle Road and Old Coyle Road will remain unimproved. The Williamson family consists of parents, Mark and Tracy Williamson; son, Luke Williamson; and daughter, Jessie Williamson. 5. The applicant requests approval of three separate applications to allow establishment of two separate uses combined into one business on the site as follows: A. Approval of a conditional use permit to allow a marijuana production (growing) business; B. A conditional use permit to allow a marijuana processing business; 10X C. A cottage industry permit to allow said marijuana processing business. The marijuana production business would occur within a 5,000 square foot, 14 foot tall building; and 3,000 square feet of a second, 5,000 square foot, 14 foot tall building. The marijuana processing use would occur in 2,000 square feet of one of the buildings. The applicant also proposes a 14 foot by 60 foot (840 square foot) maintenance building adjacent to the southern structure. 6. The site plan (Exhibit 12) shows access to the site provided by one driveway near the north portion of the rectangular area of the parcel that extends to the southwest. The driveway splits near the center of the parcel. The northern extension provides access to a 32 foot by 24 foot (768 square foot) single-family residential dwelling currently under construction and located 32 feet from the north property line. The southern extension of the driveway provides access to the two marijuana buildings and the maintenance building. The site plan shows an existing, waterwell between the maintenance building and Coyle Road. Onsite septic disposal primary and reserve drainfield areas consisting of 13,659 square feet are located between and to the west of the marijuana buildings. Marijuana building No. 1 and the maintenance building are oriented in a north -south direction and will measure 25 feet from the south property line. Building No. 1 will measure 50 feet by 100 feet. The second building, shown as No. 2, is located to the northwest of Building 1. The southeast corner of said building will touch the northwest corner of Building 1. Building 2 is oriented in an east -west direction and also measures 50 feet by 100 feet. All of said improvements will be located in the eastern 40 percent of the parcel, and the western 60 percent will remain vacant and unimproved. 7. The parcel is located within the Woodway large lot subdivision as are abutting parcels to the north and south. Said subdivision is subject to covenants, conditions, and restrictions (CCRs) that may or may not prohibit the applicant's use of the parcel or the size of the residential structure currently under construction. However, Jefferson County does not enforce private covenants. 8. The applicant's parcel and abutting parcels to the south and east across Coyle Road are located within the Rural Residential 1:20 (RR-20) zone classification of the JCC. Abutting parcels to the north and west are located within either the Commercial Forest, Rural Forest, or in Holding Forest zone classifications. No mapped or observed critical areas are located on the site. 9. Section 18.20.295(2)(B) JCC defines "Marijuana processor" as follows: "Marijuana processor" means a person licensed by the State Liquor Control Board [now State Liquor and Cannabis Board] to process marijuana into usable marijuana and marijuana -infused products, package and label useable marijuana and marijuana -infused products for sale in retail outlets, and sell usable marijuana and marijuana- 11X infused products at wholesale to marijuana retailers. Marijuana processing for the purpose of this section may or may not include drying, trimming and bagging of a recreational marijuana product. Section 18.20.295(3)(b) JCC authorizes marijuana processing as an outright permitted use in the Rural Industrial and Urban Industrial zones, and as a conditional discretionary use with cottage industry permit in Rural Residential zones to include the RR-20. In addition to the cottage industry standards set forth in JCC 18.20.170, an applicant must also meet the standards set forth in JCC 18.20.295 that address recreational marijuana activities. Finally, an applicant must show that the application satisfies conditional use permit standards set forth in JCC 18.40.530. 10. Section 18.10.030 JCC defines "Cottage industry" as follows: "Cottage industry" means a commercial or manufacturing activity conducted in whole or in part in either the resident's single-family dwelling unit or in an accessory building, but is of a scale larger than a home occupation or home business. A cottage industry is a limited, small-scale commercial or industrial activity, including fabrication, with limited retail sales, that can be conducted without substantial adverse impact on the residential character in the vicinity. Section 18.10.170(1) JCC sets forth the purpose of a cottage industry as follows: (1) Purpose. To provide for small-scale economic development activities on residential parcels, subordinate to the primary residential use, if the administrator finds that such activities can be conducted without substantial adverse impact on the residential environment and rural character in the vicinity. The scale and intensity of cottage industries are typically greater than could be accommodated as a home business, but less than would require a land use district designation of commercial or industrial. The 2,000 square foot marijuana processing business requires a cottage industry permit. Based upon its size and general lack of impacts to the neighboring community, the proposed processing business fits with the list of uses allowed as cottage industries set forth in JCC 18.20.170(2). Such includes iron working or blacksmith shops; furniture repair or refinishing; small equipment repair; auto and truck repair and service; and excavating contractors. However, both the definition and purpose of the cottage industry require that such businesses are subordinate to an existing, primary, residential use. In the present case the applicant has not established that a primary, residential use exists on the site. 12X 11. The first criterion that a cottage industry applicant must meet is set forth in JCC 18.20.170(4)(a) and reads as follows: a. 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. In the present case the applicant, staff, and residents in opposition agree that no full-time, bona -fide resident lives on the site. While the applicant has secured a building permit for a single-family residential dwelling and is in the process of constructing said residence, at present no one lives on the parcel full-time. 12. The intent of the above quoted code sections is that an existing landowner/resident apply for a cottage industry permit. The code does not contemplate or allow a scenario where the owner of an existing business makes application for a cottage industry/conditional use permit prior to becoming a bona -fide resident of the parcel. However, once becoming a bona -fide resident, the JCC provides no guidance as to the length of time residency must occur. 13. In the present case the Williamson family owns and operates a marijuana production and processing business located within the Glen Cove Light Industrial area at 71 Eisenbeis Avenue, Port Townsend. The Williamsons readily acknowledge that they cannot continue a successful business in a commercial/industrial area due to the high rental cost. They acknowledge that they would not have purchased the property if they could not use it for their marijuana business. Thus, the Williamsons are not establishing a new cottage industry business, but moving an existing business from a commercial/industrial area to an RR-20 area. Assuming the applicant's proposed use is allowed (subject to acquisition of a conditional use permit), it must meet all criteria for a cottage industry before relocating the business to the proposed site. The applicant has not done so as no bona -fide resident resides thereon. 14. Therefore, the application for a cottage industry and conditional use permit to allow the marijuana processing business must be denied. 15. Section 2.30.120(3) JCC provides as follows: The Examiner may: (a) approve the requested permit or decision; (b) deny the requested permit of decision; (c) modify the requested permit or decision.... 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).... 13X In the present case it is not appropriate to approve a marijuana production use and deny a marijuana processing use operated by the same applicant on the same site and in the same building(s). Reasons include the possibility of new conditions or revised conditions covering the single business that would not allow public comment. Other issues not discussed include security for the site since no one would live there, and preparation and transport of plants to a processing facility. Finally, no monitoring of the site and equipment could occur during the critical evening hours. 16. After review of the noise study, its critique, expert testimony, and the Austin Smith Reports and Decisions, if the applicant decides to submit a new application, the Williamson family and/or their experts should be prepared to address the following issues: A. Noise. No evidence was presented regarding the noise of the fans starting and stopping; the length of time the fans would be used; whether the fans would operate at the same time; and noise generated by interior fans and heaters. 2. Preparation of structural drawings showing the size of openings for fans, the material used in construction to include wall thickness and installation. Mr. Adam Jenkins in the Austin Smith hearing on March 29, 2018, recommended evaluation of the density of the walls in his testimony. 3. An evaluation of the noise requirements and the odor requirements. Do they conflict? 4. What is the size of the applicant's present business? Does it use the same number and types of fans? If so, have they measured the noise to determine the actual dB(A)? 5. In the Austin Smith matter the originally proposed Shaffer fans were replaced by American Cool Air fans as they were considered the quietest on the market. The applicant proposes a FanTech FKD 14 and FKD 16. How does the noise from these fans compare with the Shaffer Fans and American Cool Air fans? B. An analysis of the impacts of marijuana production with impacts of potential small-scale, agricultural uses of the site and other uses allowed outright in the RR-20 zone. See Hanson v. Chelan County, 81 Wn. App. 133 (1996), @ 139. 140. For example, a comparison of the impacts of livestock, chickens (roosters), and various farm activities to include planting, harvesting, 14X spraying, irrigation, etc., with the applicant's proposed business. C. Odor. A statement from ORCAA that it agrees or disagrees with the proposed Building No. 1's location of 25 feet from the south property line. Does the applicant's existing business generate odor? D. The applicant either has or must show compliance with all standards addressing wastewater disposal, water usage, timber harvest, lighting, and traffic. CONCLUSIONS: The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. 2. The applicant's request for a cottage industry permit to allow establishment of a marijuana processing business does not meet the criteria therefor as a bona -fide resident does not live at the site. The request for a conditional use permit to allow marijuana production (growing) facility at the site is so closely interrelated to the processing business that it cannot be separated and therefore must also be denied. 3. The denial should be without prejudice as the applicant has acquired a building permit for a single-family residential structure and is in the process of constructing a residential home. DECISION: The request for a conditional use permit and cottage industry permit to allow processing of recreational cannabis and the request for a conditional use permit to produce recreational cannabis at a site located at 9790 Coyle Road, Quilcene, is hereby denied without prejudice ORDERED this 1st day of April, 2020. E HEN K. CAUSSEA , JR. Hearing Examiner 15X