HomeMy WebLinkAbout111Michelle Farfan
Dear Commissioners and Mr. Goldsmith-
Please see the attached letter sent on behalf of Pleasant Harbor Marina & Golf Resort LLC. We welcome the opportunity
to meet with you to discuss the most appropriate way to move adoption of development regulations and a development
agreement for the Pleasant Harbor MPR forward at this criticaljuncture.
Thank you,
JT
From:
Sent:
To:
Cc:
Subject:
Attachments:
$OO N" SStr,Street . SeBtrle, WA 98103
JOHT* T. TJT,} COOKE
ATTOfiNEY
JT Cooke <JT@houlihan-law.com>
Friday, June 03, 2016 10:16 AM
j eff bocc@ co j eff erso n.wa. u s; DG o I d s m ith @ co j efferso n.wa. u s
David Alvarez; David W, Johnson; Garth Mann; Don Coleman
Pleasant Harbor MPR
2016.6.3 County Letter.pdf
m HouLTHAN LAu{/
206"547.10?5
206"S47"1958
?53.7e2.826?
DIRf;CT
FAX
MOBItE
urww,trnulihnn-law,com
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1
mfr HouLTHAN LAu#
.lune 3" 201(r
VIA IIMAIL JUN 0 3 2016
David Golclsmith
621 Sheridan Street
Port'l'ownsend. WA 9836tt
Board of Coturty Commissioners
P.O. Box 1220
Port'l'ownsend. WA 98368
Re: Plcasant Harbor MPIt Developmcnt llegulations antl
Development Agreenrent
Dcar Comnrissioners and Mr. Goldsnrith:
We represent thc Pleasant Harbor Marina & Golf Itesort LLP ("Pleasant l-larbor").
As you knor.v. Pleasant Hartror is thc orvner of approximatell' 256 acrcs designated
by the.leffurson Oounty Conrprehensive Plarr ("JCICP") as a Master Planned Resort
("MI'l{") under Ordinance No. 01-0128-08 ("MPR Orclinance").
We recently received a elraft redlined version ol' thc Planning Commission's
recommended changes to thc developnlent regulations prcpared by Pleasant Harbor
and.letlerson Clountl't)PD. As dcscribed more ftrll.v belorv. many of the changes
contlict rvith the .,CCI'}. Ml'}l{ Ordinauce, and .lct' rson County Clode.
Likervise. Pleasant I'larbor rvas just recently made ar.r,are of consultation agreement
the l)or1 Gamble S'Klallarl'l'ribe ("P(}ST") has proposed to address i1s concerns.
'l'he Countl, just complctcd an eight year environrrreutal rcvicu, tbr thc proposed
devclopmenl regulations ancl development agreenrcl)t that inclucled nLlmerous
studies arrd nritigation measures. 'lhc PGS'I' was specilically asked lcrr input on
nun'rerous occasions. It either failcd to respond to those requests or submitted
sr-rperlicial comlnents that did not iclcntify substantivc points of disagreement with
the C'ounl.v's envirorunental assessnlents. h appears thal the consultation
agrecment is nothing nrorc than an attctnpt to l'r"rrther delav due consideration of the
development regulations iurd developrncnt agrsemunt.
I
2Rit [TA:l Ib
Page 2
The Gronth Management Act requircs that Clounty adopt developrnent regulations
that are consistent with its comprehensive plan. 'l'he Courrt,v* approved the MPR
designation in 2008. lrut has still not adopted consistent developrnent regulations to
implernent the MPI{ tiesignation. There is no lau,fll basis lbr turther delay.
A. The Planning (lommission is Aeting Beyond its Luwful Authority
l. The Planning Commission has Failetl to Issue a Report within
F'orty (40) Days
Jeff'erson County'' Resolution l.io. 54-97 requires that thc Plannin-u Comnrission
repoft on all rnatters ref'erred 1o it u,ithin lbrty (40) days. 'I'he developrnent
regulations and developmcnt agreerrent at issue rvere refen'ed to thc Planning
Contmission iu on Decernber 30. 2015. It is almost .lunc. A lull six months and
the Planning Clommission still has not issued its rcconrurendation.
2. 'Ihc Planning Commission is Considr:ring lssues Bel,ond Those
Irlentified in JCC 1tt.45.CI80(t)(b) autl (l)(c) and Singling This
Project Out for Special ILegulations Inapplicable to Other Similarly
Situatcd Properties
It appears that the delay' with the Planning Commission is attributable to it taking
on a scope ol'revieu,that e'xceeds its authority. 'l'he Planning Commission's review
of development regulations is advisory only ancl is circumscribed by JCC
18.4-5.090(:i). 'fhat sectior) states that the Planrritrg Commission. nhen making
recommendations on dcvelopment rcgulations. shall evaluate the proposal against
the "site-specific criteria set fbrth in J('C 18.45.080( I Xb) and ( I Xc). as applicable."
(emphasis added). -l'hcse criteria" c.xccpt lbr one. are mostly inapplicable because
the criteria are primarily airned at conrprehensive plan amendments which are not
at issue here.l
Accordingll," tlre Planning Commission's revieu, is limitecl to whether the
developmertl regulatiolls are consistcnt with the Conrprchensive PIan Amendment
and conditions imposed by the IIOCC:
(viii) 'l'he proposecl amenclment is consistent u,ith the
Crou'tlr Management Act (C'hapter 3(r.70A IICW), the
Countl'-Wide lllanning Policl' fbr Jellbrson Countl'. any
I lndeed, the MPR Ordinance already made findings that the criteria set forth in JCC 18.45.0S0(1Xb) and (1Xc) has been satisfied.
Thus, the development regulations need only be reviewed for consistency the MPR Ordinance, GMA, and the Jefferson County Code.
Page 3
other applicahlc inter-jurisdictional policies or agreemcnts.
and any other Iocal. slate or I'ederal laws.
JCC 18.45.080(c). It appears that thc Planning Commissiorr is deviating lronr this
speeific restrainl on its review authoritv and is instead reviewing the proposed
development regulations against an Lrnafiiculated sct ol'criteria and personal bias.
For example. a golf'course is expressly allowed unclcr the MPR Ordinance: "the
new resort would irrclude rrew thcilities such as a golf course." JCCP at 3-23.
Accordingly'. the proposed cleveloprncnt regulations identitied a golf course as an
allowed use. But" thc Planning Commis$ion's recommended changes would
prohibit a golf course on the basis that the propertl is a "sole solrrce aquifer." Not
only is thc Planning Comrnission's recon:mencl chauge inconsistent with the
County Cornprehensive Plan. but it inconsist$nt n,ith thc .letl'erson County Code.
The JefTerson County Coclc cxpressly' allows golf courses over aquit'ers so long as
certain conditions are rnet. JCC 1ti.22.130(4). Thus. not only has the Planning
Conrmis.sion taken it i.rpon itsell to unlawfirlty anrend thc County"s critical area
regulations (without mceting GMA requirements that sr-rch regulations be based on
best available scienoe). but is singling this proiect clrt tbr special treatment by
precluding uses the Countl' ailorvs elsewhere.l
Because tlre Planning Cornmission's recomnrendations appear based cln bias. rather
than the JCICI criteria. and becausc the Planning Comnrission has exceeded its lawful
authority b;" delaying u rc'por1 beyond 40 da1,s and Lry considering t'actors it is not
authorized to consider the proposed development regulations and development
agreement shor"rld be kilwarded tn the Board unchanged and without
recommcnclation.
B. No Additional Consultation is Ilequired
On December 16.2015 thc PGS'| allcged that it had not been properly consulted
and requested a -'6il-da,v period to rvork Jeflbrson C'ounty stalt as needed to
complete the tribal consultatiorl proccss." Wc disagrec rvith the PGS'["'s allegation
that it lvas not propcrly consuhed dttring the eight .vear Si:l'}A review. '['he Cclunty's
"Note to [:ile clated March2c)-2016" rvhich outlines in detail the eflbrt the County
went to consult rvith the l'}GSl'.'r
Nevertheless. the Countl' held a government-to-govcrnnlent meeling ivith PGST
representatir.es in April 2016. During that meeting the PGS'| itself acknowledged
that it fhilcd to rneaninglblly participate during thc SI:PA process. After the initial
governnlent-to-governrnent meeting. representativcs of Pleasant Harbor met with
2 Additional examples exist, but to point out every recommendation that is inconsistent with the Comprehensive Plan, GMA, or
County Code would take pages. lf the BOCC requires that level of assessment we can, however, provide it.
3 The Note to File is attached.
Page 4
tribal representativcs to dcvclop a t}amework to address its concerns. Shortly after
the meeting Pleasant llarbor hosted an on-site nleeting to inspect the kettles.
Despite thc 'i'ribe's purported urgenc), to evaluate thc irnportance of these areas it
could not rnake availablc its expert on vegetation to thc visit. Pleasant I larbor
reached out to tribal representatives ()n nunlerous occasions to set up consultant
meetings to assess what rnodilications could be nrade to address their concems.a
The PGS'I'did not respond tei that request.
By letter dated May 9.2016 the PGST has requested an open-ended consultation
process that appears aimed at fufiher delay. I'he l'GS'l had anrple opportunity to
participate in the SEPA pr()cess which addressed and proposed rnitigation measures
for the prccise issues the PGST now'assert warrant fiLr"thcr review. We respectlully
request that BOCC consicler the development regulations ar:rd development
agreement without further delay.
C. Pleasant Harbor n,ill Avoid Impacting thc Kcttles as a Voluntary
Mitigation Measurc
As a gesture of good laith. Pleasanl I{arbor will agree to avoid impacting the kettles
as paft of its developnrcnt agreernent. Because tlre kettles are of cultural
significance to the PGS'I'and its menrhers we rvoulcl r,vclcome agreement with the
PGS'I'r*'lTcreby they would lre responsible firr maintair:ing the cultural integrity of
the kettles in perpetuity,.
D. Conclusion
Pleasant Harbor has becrt extremell' patient throughout this process and has
endeavorecl to address ali reasonablu concerns q,ith the proposed development.
However. an eight ycar rcvicw process to adopt devcloprnent regulations required
by both the GMA and JCC' is irrconceivable and. in my experience. unprecedented.
We request that tlrc County priurptly tultlll irs lcgal obligation to adopt
developrnent regulatiorrs that implement the MPR as approved by the BOCC in
Ordnance No. 0l -0 128-08.
Sincerc[1,.
t-
.I Cooke
Cc Client (via cnrail wlo encls.)
David Alvarez (via email)
David Wayne Johnson (r,ia ernail)
a A copy of our request to meet with PGST consultants is attached.
e
JEFFERSON COU}.IW
DEPARTMENT OF COMEfi UNITY NEVELOPITENT
621 Sheridan Street I Port Townsend, WA 98368 lWeb: wWU.eg.ieflerqqlr.wO,q$ l
Tel: 360.379.4450 | Fax: 360.379.4451 | Ernail: dgl(irso.ie{lerson.wa,Us
Et"tilding Permits & /nspectlons I Dovolopment Conuslancy Revlow I Long Rango Planning I Squara One Reeource Cenler
NOTE To FIL[-:_l4Afeh!9- 301Q
RE: Pleasant Harbor MPR Phase ll - Staff Response to Poft Gamble S'Klallam Tribe (PGST) letter dated
March 15,201.6 (attachment H1)
Staff and the Planning Commission received the attached letter, and for the record, staff is providlng this
response as a way to address the issues contained in the letter, This Note to Filc will be provided to the
Planning Commission prior to its public meeting of April 6, 2016.
As part of the Phase t approval for a Comprehensive Plan amendment to designated property for a
future MPR, the Board of County Commissioners imposed 3U conditions of approval (Ordinance No, 01-
0-0128-08), Staff made clear, and the applicant agreed that meeting the conditlons prior to signing the
development agreement, was the responsibility of the applicant, Als0, the concerns of the PGST stated
in their letter dated March 15, 20LO related to Cultural and Natural Resources, concerns that were
thoroughly analyzed in the SEIS as required by SEPA.
CoJrsultation with the PGST: The following actions were taken by the Applicant and Staff to meet the
above state and localrequirements, including any requirement to consultwith tribes:
1. The Consultant who drafted the Cultural Resources Management Plan sent letters to all six local
tribes including the PGST requesting consultation on identifying cultural resources on-site
(attachment f2). The Skokomish Tribe was the only one to respond.
2. On May tt,2Ot2, the applicant sent the PGSTthe Cultural Resources Management Plan dated
March 27,2012 (attachment #3). The PGST did not respond to this request to review and/or
comment on the plan.
3. ln order to facilitate coordination and consultation with the Tribes, staff elicited the assistance
of the State Department of Archaeology and Historic Preservation who sent Staff a letter dated
January L4,2Ot3 (attachment S4) confirming that "three tribes had concurred with the plan and
three others did not comment."
4. On November L9,201.4, Staff released the draft SE|S for public and agency comment. The PGST
was sent the notice of availability on November 18, 2014.
5. Staff received a comment letter on the Draft SEIS frorn the PGST on January 5, 2015 (attachment
fis - date stamp of 2Qt4 in error), The letter requested "the opportunity to consult more
directlywiththeprojectapplicantandJeffersonCounty." Assuch,staffcontactedtheTribal
representative Roma Call and scheduled a meeting on-site.
6, On February 18, 2015, Staff and the Project Manager, Craig Peck met wtth representatives of the
PGST to discuss their concerns. As we recall, the topic of cultural resources and the Kettles was
not discussed, but water quality, shellfish and elk were. At the conclusion of the meeting, Tribal
Representative Rorna Call asked if the Tribe could submit a request to the County to include
additional monitoring for water quality. Staff agreed to review any request submitted by the
Tribe, and indicated there would be time for them to submit their request.
7. DCD does not provide notice to interested parties that the Final SEIS is about to be released and
SEPA does not require that such notice of impending Final SEIS publication be provided.
8. On December 9, 201-5 the final SEIS was released !C[ irgl]lh after the meeting with the PGST,
sufficient time for PGST to submit their request. The release of the final SEIS lncluded a four
page response to the P6sT's comments on the Draft 5El5 {attachment f6)
9. On December 16, 2015, staff received a letter (attachment $7) regarding a 60 day request to
"complete the Tribe's consultation." The letter also confirms that, "although the document
{FSEIS) covers potential environmental effects to sonre extent, we are concerned that it does
not go nearly far enough to resolve the potentially significant impacts to tribal treaty rjq,ht5."
10, On January 22,20!6, The Planning Commission and staff agreed to grant the PGST 50 days to
"complete the tribal consultation process," as requested (attachment #8).
11. On March 15, 2016, the PCST submitted the subject letter (attachment #1) requesting that
"Jefferson County work with the developer and the PGST to implement the following mitigation
actions, and meet the requirements of Ordinance No. 01-0128-08" (the 30 conditions of
approval). From the perspective of DCD, the March 15, 201.6 letter formally concluded the
consLrltation process between the PGST and Jefferson County which began on February 18,
201s.
Conclusio0q:
Based upon the attached correspondence, DCD concludes the consultation process between PGSTand
Jefferson County began on February 18, 2015 and was completed on March 1.5, 2016 with submission of
the subject letter (attachment #1.). fl1g:!(lkJlow is to "contirrue to wsrk witl't the developer and P$ST
staff" tg -deternrine whiclr Ulgtlg:qd*?cJ!-otrs.ilems warrarrt iUlplgrnenJa!ion,
Although the PGST acknowledges that the FSE[S "covers potential environmental effects to some
extent," it is clear that the PGST believes the SEPA analysis and proposed mitigation, while presumed to
be compliant with State law, does not meet the environmental protection standards the Tribe asserts
are necessary to protect tribal treaty rights.
Ordinance t',1 o. 01-0128-08
The following condltions of a;:proval under Ord No. relate to the PGST:
J| Tribes should be consulted regarding cultural resources, and possibly one kettle preserved as a
cultural resource.
Staff Comment: The word "should" indicates that discretion is allowed, while the word "shall" is
mandatory (JCC 17.05.040 Port Ludlow MPR Code).
Applicartt Cornpliance: The applicant collaborated with the Skokomish Tribe in preparation of the
Cultural Resource Management Plan (attachment #3) and letters requesting consultation were sent to
the PGST and other local Tribes prior to drafting the plan. Kettle C will be preserved as part of the
proposaL
k) As a condition of development approval, priQ-rler_ tlle jsgJ.UM*qf alrv sha
anv prelirtinarv plat, there shall be executed or recorded with the County Auditor a document reflecting
the developer's written understanciing with and among the follorving: Jefferson County, local tribes, and
the Department of Archaeology and Historical Preservation, that includes a cultural resources
management plan to assure archaeological investigations and systematic monitoring of the subject
property pricr to issuing permits; and during construction to rnaintain site integrity, provide procedures
2lPage
regarding future ground-disturbing activity, assure traditional tribal access to cultural properties and
activities, and to provlde for community education opportunities.
Staff Co0rlnerrt: Since the Maritime Village was relocated outside the Marina, and no new development
will take place'within Shoreline jurisdiction, no shoreline permits are likely to be required or applied for.
Also, the applicant could process the development zones and residential areas with a Boundary Line
Adjustment instead of a Plat, unless there would be a sale or lease of new parcels. However, the intent
of this condirion is to ensure that cultural resources are protected.
Aoplicarrt Coinpliancei The Cultural &esource Management Plan (attachment #3)is intended to comply
with this condition, however, it does not appear to contain provisions for notlfication of Tribes to assure
traditional tribal access to cultural properties and activities, or to provide for community education
opportunities.
Staff Bejqmtrlqndatlgn: revisu the Cultural Resource Management Plan in consultation with the PGST to
include provisions for notification of Tribes of ground disturbing activities, to assure traditional tribal
access to cultural properties and activities, to provide for cornmunity education opportunities, and to
ensure that contact information is current. This revised Plan would be recorded with the Auditor and
referenced as a requirement in the Development Agreement,
l) A wildlife management plan focused on non-lethal strategies shall be developed in the public interest
in consultation with the Department of Fish and Wildlife and local tribes, to prevent diminishment of
tribal wildlife resources cited in the Brinnon 5ub- Area Plan (e.g., deer, elk, cougar, waterfowl, osprey,
eaBles, and bcar), to reduce the potential for vehicle collisions on U.5. Highway 101, to reduce the
conflicts resulting from wildlife foraging on high-value landscaping and attraction to fresh water sources,
to reduce the dangersto predators attracted to the area by prey or habitat, and to reduce anydangerto
humans.
Statf Commer"r!: Staff agrees rvith the PGST that the wildlife rnanagement plan and the Habitat
Management Plan are not the sanre thing.
AoolicaQt Cor1:t11[gtce; The applicant has not complied with this condition and will need to consult with
the local Tribcs and the Departrnent of Fish & Wildlife when drafting the plan.
Staff Reconrrliiind-allon: This plan shall be required prior to larrd disturbing activlty for Phase 18
SEPA
ln addition, proposed JCC 17.80.050 Envlronmental review for Resort Plan development requires
additional enr,,ironmental review for all project level applications which requires completion of a SEPA
checklist, notice to Tribes, arnong others, and a SEPA determination. Should the determination require
more environrnental study such as a Supplemental ElS, the Tribes will have the opportunity to be
involved in the scoping of that envilonmental study.
Staff Reconl;.!rendatlons:
Beyond the recommendations above, staff recommends the following to satisfy the concerns of the
PGST and others:
The applicant lnay adopt any or all of the following options and the County may only require
implementation of such options or mitigations as are necessary to comply with one or more of the 30
condltions listed in Ordinance tiO1-0128-08 at Finding f63. Appllcant's options include:
1. Redesigning the stornrwate r and wastewater managei'r'lent systems to completely avoid the use
of Ketries B & C, or in the alternative;
3lPage
2. lmpl:ment and conrplete r\ctions 2 thru 5 of the subject letter, to include educational
opportunities relateci to the uniqueness of these geologic features.
3. lmplernent and Complete Action steps 8, I & 10 of the subject letter.
4. lmplementand Comprlete a comblnation of 1& 3 above or2 &3 above,
5. Meei with the representatives of P65T and arrive at a different set of mutually agreeable
rnitiEations that address the concerns the PGST expressed in the March 15, 2016 letter.
6. RedLice the number of residential units proposed to 445 - half of the 890 approved units under
Phasu. 1 and Ordinance S01-0128-08.
7. Take no action in response to the March 15, 2016 sent to DCD by the PGST.
Jefferson County recognizes tne PGST as a specific party of interest, and as such will be notified of all
project level ,ievelopment applications that require notice, including any SEPA Threshold Determination
as outlined ir, proposed JCC 17.80.050. Jefferson County cannot grant the PGST any special provisions
under the de,.,elopment regtrlations that are not granted to other parties, nor can it codify requirements
before deterrnining what those retluirements are.
4
Associ;:te Planner
{p
4lPage
JT Cooke
From:
Sent:
To:
Cc:
JT Cooke
Thursday, May 05, 2016 9:41 AM
'ah rnisG) pgst.nsn.us'
'peckassoc@comcast.net';'rornac@pgst.nsn.us'
Ple;rsant Harbor MPRSubject:
Ahmis-
Per Roma's email I an writing to schr:i1ule a nreeting next week l:elween the Port Gamble S'Klallam Tribe's ("PGSfl )
consultants identifieci irr Roma's emirii an{1 our consultants. We can circulate a more detailed agenda for review and
comment later, but tlrr-, general purp*:e oi tlre meeting, frorn our persglective, would be to identify with specificity why
the PGST believes the i)leasant Harbur MPit, as redesigned and mitigated, will impact its treaty rights and to discuss how
we can reasonably acii.lress those issu,,s. 'i'o facilitate an engaged discussion, we request that each PGST consultant
identified in Roma's errrail review thr ,:flS ;rnd FSEIS (available on the County website) prepared for this project and
prepare a list that spei-ifically identif ics ealrh way it feels this project irnpacts PGST's treaty rights and send that list to us
at least three days pri,)r'to the date r.ri our rneeting. Additionally, we would like to know in advance what the PGST
believes could be donr,: to address th,.:';e irrrpacts.
As you may know, Sta iesman has sperit thc last 10-plus years carefulJy designing and studying this project to have
minimalenvironnrentll impact. A let of ci-iort has gone into ensuring that the project has a minimalfootprint because
we believe that the lor,g-term success r"rf this project is depenclent uLrsn Jrreserving the natural beauty and resources
that surround it. We rrnderstand th.ir tlre PGST has limited resources to devote to review projects in the area, but were
disappointed that the PGST waited urr il airer the FSEIS was published to express its concerns. We are interested in
workingwith the PGS'i in good faith ir finti sclutions, however, we ask that the PGSTagree to devote its resourcesto
working with us to finri those solutio;::, in ., tirnely fashion.
I look forward to heai' irg fronr yctr
Thanks,
JT
Eil Hout il AN L-A\i
J0Hr{ T, {Jr.} c*i;
ATTCIRNEY
" ,; b4,r1rl"!:
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,.,, r, rr!iirirr,rr,
Thank you.
I
David W. Johnson
From:
Sent:
To:
Cc:
Subject:
Attachments:
JT Cooke <JT@houlihan-law.com>
Friday, June 03, 2016 10:16 AM
jeffbocc; David Goldsmith
David Alvarez; David W. Johnson; Garth Mann, Don Coleman
Pleasant Harbor MPR
201 6.6.3 County Letter.pdf
Dear Commissioners and Mr. Goldsmith-
Please see the attached letter sent on behalf of Pleasant Harbor Marina & Golf Resort LLC. We welcome the opportunity
to meet with you to discuss the most appropriate way to move adoption of development regulations and a development
agreement for the Pleasant Harbor M PR forward at this critical juncture,
Thank you,
JT
fil Houlxi &N L&s,
nOO H. 35'e Streer "
JOHN T, fJ"T.} C{;i.,; ;
ATTORNEY
:S6,H4?.1O75 r",,.,',,,'
?06.S4?JgSB *.,
?$3.7?U.8267 r*;.,'i
vsrm.h*Ullhen_l*rxu. <:, .m
NOTICE: This communic.ition may contain privileged or other confidential information. lf you have received it in error, please advise
the sender by reply enraii and immediately delete the message and any attachments without copying or disclosing the contents.
Thank you.
1