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HomeMy WebLinkAbout147Morris Law Pc. ltne27,2016 Jefferson County Commissioners Phil Johnson David Sullivan Kathleen Kler 1820 Jefferson Street Port Townsend, WA 98368 Re: Development Regulations and Development Agreement for Pleasant Harbor Master Planned Resort Dear Board of County Commissioners: I am an attomey representing a number of property owners aggrieved by the planned Pleasant Harbor Master Plarured Resort. We have reviewed the proposed Development Regulations and have the following comments for your consideration: Process: First, the letter dated May 3, 2016 that the Commissioners sent to the Planning Commission states: "Statesman Group, like any other applicant for the development of land, is entitled to review and recommendation by the Planning Commission, and ultimately a decision by the Coturty Commissioners with respect to the proposed regulations in a timely manner." If the County is considering the amendment to its development regulations and a development agreement, there is no applicant or application for the development of land. In this letter, the Commissioners admit that the "development regulations are general uniform regulations that should apply to any subsequent development that may occur within the MPR, regardless of the development's specifics." Therefore, these development regulations are amendments to the County's code, adopted through a legislative process. There is no deadline on the County's decision on legislative actions. ,See, RCW 36.708.080, which requires that the County's code include a deadline for a final decision on a "project permit application," excluding amendments to comprehensive plans and development regulations (RCW 36.70B.020(4)). There is also a state law which allows property owners to sue municipalities for damages based on the agency's failure "to act within time limits established by law in response to a property ormer's application for a permit," but this does not apply to the County's adoption of an ordinance amending its development regulations. RCW &.40.020,.010(6). See also, RCW 4.24.470, which provides that a'tnember of the goveming body of a public agency is immune from civil liability for damages for any discretionary decision or failure to make a discretionary decision within his or her official capacity ..." 3304 Rosedale Street NW Suite 200, Gig Harbor, WA 98335-1805 Phoni: 253451-5090 Faxl 360-850-1099 Email: carol@carolmotrislawcom Web: www.carolmorrislaw.com Letter to Jefflerson County Commissioners Jwrc27,2016 Page2 If the developer has suggested that his due process rights would be violated unless the County issues a decision based on the developer's suggested time frame, please ask your attorney to review Bogan v. Scott Harris, 523 U.S. 44, ll8 S.Ct. 966 (1998). This case demonstates that the County and the Commissioners individually, are absolutely immune from a damage claims alleging a due process violation based on their legislative activities. Concurrency. The Growth Management Act requires that the County: must adopt and enforce ordinances which prohibit development approval if the development causes the level of service on a locally owned transportation facility to decline below the standards adopted in the transportation element of the comprehensive plan, unless transportation improvements or stategies to accommodate the impacts of development are made concurrent with the development. These strategies may include increased public transportation service, ride sharing programs, demand management and other transportation systems management strategies. For the purposes of this subjection (6), 'concurrent with the development' means that the improvements or strategies are in place at the time of development, or that a financial commitrnent is in place to complete the improvements or strategies within six years. RCW 36.70A.070(6Xb). While the County's development code includes several definitions relating to concurrency, we couldn't find a concrurency ordinance which specifrcally required the County to prohibit development approval under the circumstances identified above. There is also a reference to concu:rency in the section of the code relating to master planned developments, but it did not include a formal process for review and denial of project permit applications based on lack of tansportation concrurency. Here is a more detailed explanation of what must be included in the County's concrlrency ordinance: Each planning jurisdiction should produce a regulation or series of regulations which govem the operation of that jurisdiction's concurrency management system. This regulatory scheme will set forth the procedures and processes to be used to determine whether relevant public facilities have adequate capacity to accommodate a proposed development. In addition, the scheme should identiff the responses to be taken when it is determined that capacity is not adequate to accommodate a proposal. Relevant public facilities for these purposes are those to which concurrency applies under the comprehensive plan. Adequate capacity refers to the maintenance of concurrency. Letter to Jefferson County Commissioners Jurp27,2016 Page 3 WAC 365-196-840(5). If the County doesn't have a concunency ordinance that complies with the requirements of the Growth Management Act for transportation facilities (at the very least), this should be the County's highest priority because it has been a requirement under GMA since the early 1990's. If the County executes a development agreement with the developer before it adopts a conqurency ordinance (as required by GMA), and the agreement addresses vesting of the applicable development regulations, the developer will likely argue that it is not required to comply with the County's newly adopted concurency ordinance. This means that the develcipment with the most significant haflic impacts in the area will be exempt from one of GMA's mandatory requirements. A dxaft of the development agreement that has been circulating shows that the developer desires that the Cotrnty agree to vest the proposed project under the applicable development regulations for twenty years. A twenty year waiver under a transportation concrurency ordinance that should have been in effect in the 1990's would certainly be a benefit to the developer and denimental to the public. Attached to this letter is a draft of a concurency ordinance which covers hansportation, sewer and water. Please feel free to modiS it for your purposes. State Environmental Policy Act (SEPA). It appears that the County's SEPA regulations were last adopted in 2006. In JCC Section 18.40.700, the County adopted the SEPA Rules (chapter 197-ll WAC) by reference in Section 18.40.700(2), in 2006. However, the SEPA Rules were substantially amended in 2014. The County should not be implementing SEPA through outdated Rules. It is also unclear whether the County actually implements SEPA through the SEPA Rules , in the WAC's. The County's development regulations include summaries orabbreviated versions of the SEPA Rules - and there doesn't appear to be a formal adoption of the SEPA Rules as they appear in the Washington Administrative Code. My suggestion is that.the County adopt a SEPA ordinance that is separate from the development code and eliminate the modified SEPA language from the various chapters of Tifles 17 and 18. Attached to this letter is a draft of a SEPA ordinance, which has been updated to show the latest amendments to the SEPA Rules. Please feel free to modiff it for your purposes. lrtter to Jefferson County Commissioners lvneZ7,2016 Page 4 Title 18 - Chapter 18.15 Land Use Districts. 18.15.025 Master Planned Resort. In subsection (2), the following appears: "The Pleasant Harbor MPR is . . . subject to the provisions of JCC Title 17." ln Section 18.15.115, it states that "Master Planned Resort is a land use designation established under the Comprehensive Plan" and that provisions for the Pleasant Harbor MPR "are codified in JCC Title 17." While this Section 18.15.115 explains how to designate "new master planned resorts (compliance with "this Article" and a formal site-specific amendment to the Comprehensive Plan Land Use Map subject to the findings required by JCC 18.45.080," significant questions remain as to the integration of this chapter with chapter 17.60. In addition, there is no guidance in this chapter for the resolution of conflicts between regulations in the two separate titles which purport to address the same subject. For examplg Section 17.65.020lists the permitted uses in the Pleasant Harbor Master Planned Resort, and Section 18.15.123 lists the uses that may be "allowed" in the master planned resort classification. ln Section 18.15.123, it states: "The following uses may be allowed within a master planned resort classification authorized in compliance with RCW 36.70A.360." In Section L7.65.020(6), waste water treatnent facilities are permitted uses in the Pleasant Harbor Master Planned Resort District, but this is not an "allowed use" within a master plarured resort classificatioq according to Section 18.15.123. In Section 18.15.123(9), the County may allow "any other similar uses deemed by the administator to be consistent with the purpose and intent of this section, the Comprehensive Plan policies regarding master planned resorts, and RCW 36.70A.360." This is very confusing. While 18.15.L23(7) allows: (7) Capital facilities, utilities and services to the extent necessary to maintain and operate the master planned resort the term "waste water treatment facilities" is not limited to the maintenance and operation of the MPR. "Waste water treatment facilities" are not even defined in chapter 18.10, and this use is either prohibited or allowed only as a conditional use in the Resource Lands and Rural Residential Zorungdesignations. Does this mean that a regional waste water heatment plant can be permitted outright in the Pleasant Harbor Master Planned Resort through the administative process? 18.15.126 Requirements for Master Planned Resorts. The County is required by RCW 36.708.080 to list all of the elements of a complete application for a project permit application. It is unclear whether a MPR approval is a "project permit application" or a request for a comprehensive plan amendment. This needs to be clarified given that there are different requirements for processing of a project permit application (which must Letter to Jefferson County Commissioners Jwrc27,201.6 Page 5 follow the procedures in chapter 36.708 RCW). In addition, there are deadlines for processing project permit applications (RCW 36.708.080), and the appearance of faimess doctrine applies in any quasi-judicial hearing on a project permit application (RCW 42.36.010.) We assume that this section needs to be read together with Section 17.60.040, even though this is not stated here. Under 17.60.040, it appears that the developer must not only get approval for a Master Planned Resort under Section 18.15.126, but the developer must also obtain binding site plan approval and a development agreement. [n Section 17.80.030, the developer must submit a "Resort Plan application, which consists of an approved binding site plan, including monitoring and operational plans, and an approved developer agreement." If the terms Master Plan and Resort Plan have the same meaning, only one term should be used. If a binding site plan is required in the Pleasant Harbor Resort - apparently because the property needs to be divided - there should be some explanation of the timing of the submission of all these applications. Based on Section 18.15.129, the Master Plan is a legislative approval, so it would have to be granted prior to a binding site plan (which is a quasi-judicial application). Depending on what the development agreement does and when it is executed, it could be legislative or quasi-judicial. 18.15.126(1) Here, is the County complying with RCW 36.708.080 by listing the elements of a complete application for a Master Plan application? If so, there still is nothing in this section which requires that the application demonstate compliance with the chapters relating to the specific MPR designations (zoning or comprehensive plan). In Section 18.15.126(l)(h), there is a requirement that the ooconcurrency requirements of the Comprehensive Plan will be met." The County is actually required to adopt a concurrency ordinance pursuant to RCW 36.70A.070(6)0) and WAC 365-196-840(5), which prohibits development approval if the development causes the level of service on a affected transportation facility to decline below the standards adopted in the comprehensive plan, unless certain conditions are met. If the County hasn't adopted a concurrency ordinance, the developer obtains a significant benefit. There is no requirement that a SEPA Checklist be submitted as part of a complete application, but in Section 17.80.040, "a project level supplemental environmental impact statement (SEIS) analyzing development under the Resort Plan is required prior to issuance of building permits . . ." This conflicts with WAC 197-11-055(1), which requires that the SEPA process "shall be integrated with agency activities at the earliest possible time to ensure that planning and decisions reflect environmental values, to avoid delays later in the process, and to seek to resolve potential problems." Letter to Jefferson County Commissioners h;uo.e27,2016 Page 6 Let's assume that the County approves a MPR in the Pleasant Harbor Master Plarured Resort Residential Recreation and Commercial Zone, for a development that includes a regional waste water treatment plant. Because there is no requirement that the developer submit a SEPA checklist in order obtain this approval, the environmental impacts will only be amlyzed by the County after approval. at the time the County reviews the building permit for the waste water teatment plant. However, the County is prohibited by SEPA from "piece-mealing" review of the environmental impacts in order to avoid discussion of cumulative impacts. WAC 197-11-060(5Xd). 18.15.126Q). Here, the County has required that a development agreement accompany a Master Planned Resort, in order to ooset for the development standards applioable to the development of a specific master planned resort." The description ofthese "development standards" is nothing more than a list of the types of issues that may be covered in a development agreement between a municipality and a property owner. Development agreements are authorized by RCW 36.708.170 through RCW 36.708.2t0. "A development agreement shall be consistent with applicable development regulations adopted by a local government planning trnder chapter 36.70A RCW." RCW 36.708.170(l). This means that the County must actually adopt the development regulations first, and once they are adopted, the "development agreement must set forth the development standards and other provisions that shall apply to and govern and vest the development . . . for the duration specified in the agreernent." The County should consider amending its development regulations relating to development agreements. Development agreements are contracts, and like all confoacts, consideration is required. There is nothing that requires the County to allow a developer to vest development standards for twenty ysars, without any consideration- Mere compliance with the County's development standards is not consideration - all development must comply with the County's development regulations. Title 17 - Master Planned Resorts. 17.60.010 Authority. Although Title 18 JCC is mentioned here, there is nothing to explain how Title 18 is integrated into this chapter 17.60. For example, it appears that chapter 18.15 describes the process for a developer to obtain approval as a Master Planned Resort. Beginning with Section i7.80.030, there is a description of a process to be followed in order for the developer to obtain approval of a Pleasant Harbor MPR. Nothing in this Chapter 17.60 or chapter 17.80 explains that the procedures in both chapter 18.15 and chapter 17.80 must be followed by the developer for such approval. The public is similarly in the dark about the effect of the MPR, how it will be processed (is a binding site plan required in all irntances?) and how it may be appealed. Letter to Jefferson County Commissioners June27,2016 PageT 17.60.030 Purpose and Intent. This section states that the purpose and intent of the Pleasant Harbor MPR code is to o'set forttr development regulations that comply with and are consistent with the Jefferson County Comprehensive Plan for future development ..." It is true that RCW 36.70A.130(lXd) requires that "any amendment of or revision to a comprehensive land use plan shall conform to [chapter 36.70A RCW] . . . and shall be consistent with and implement the comprehensive plan." However, this is required for all amendments to the County's development regulations. What is needed here is a description of the purpose and intent of the Pleasant Harbor Master Planned Resort chapter. This section needs to be much more specific, given that under Section 17.65.020(12) (and other similar subsections of this code), the County Community Development Department will consider this purpose and intent language to determine whether a use is "consistent with the purpose of this zone and MPR" and therefore allowed in the zone.l Here is the effect of the County's bland purpose section. When the Community Development Director is given an application for a development in this zone, and the proposed use is not listed as "perrnitted outrighf in the zone (in the list of uses set forth in Section 17.65.020), then the Director must detennine whether it is "similar" to these other uses. In addition, the Director must consider whether the use is "consistent with the purpose of the zone and the MPR." If the County doesn't include any language which actually describes the purpose of the zone and the MPR, then the analysis is limited to whether the use is similar to the uses in Section 17.65.020. A review of the uses listed in Section 17 .65.020 discloses that the uses are wildly divergent, and absolutely any use at all could be viewed as "similar" to the others in Section 17.65.020. This provides the developer with a significant advantage because all uses are allowed, contrary to sound planning principles. The adverse impacts of incompatible uses will have to be absorbed by the public and surrounding property owners.2 17.60.130 Enforcement. Section 17.60.130 should be clarified to state that the County may enforce the code using any available legal remedy. The County is not limited to the procedures in chapter 18.50 to obtain compliance with the code. For example, if there is a breach of the development agreement, the County can judicially enforce the agreement in a breach of contract action. The County should also revisit their penalty provisions in I Insertion of language to describe the purpose and intent of the Pleasant Harbor MPR should not be difficult if the County has adopted it as a subarea of the comprehensive plarq and the regulations proposed in this chapter are actually consistent with the comprehensive plan. However, the County's purposoful omission of such express language indicates an intent to allow all types of uses of property, as shown in Section 17.65.020, regardless of the compatibility of the use with surounding uses or the environment.2 Also, keep in mind that there apparently will be no SEPA review until the building permit application stage, which means that few members of the public (if any) will be given notice of the submission or issuance of the building permit. Letter to Jefferson County Commissioners Jluucie27,2016 Page 8 Section 18.50.1 l0(l)(c), which imposes a p€nalty of $100 per day, per violation - this is extemely low penalty compared to other municipalities and is not sufficient to encourage compliance. 17.65.020 Permitted Uses. As stated in Section 17.60.030, these development regulations must "comply with and [be] consistent with the Jefferson County Comprehensive PIan for future deveiopment within the boundaries of the Pleasant Harbor Marina and Golf Resort Master Planned Resort." However, I could not find anything in ttre comprehensive plan to indicate that the uses set forth in Section 17.65.020 were consistent with the Subarea Plan or actually contemplated within this specific area. For example, in the Brinnon Subarea Plan, page 46,the following appears: "We envision the Black Point MPR to be significantly different and smaller in scale than the Port Ludlow MPR in that it would be less structured towards development of permanent residential development and more so towards providing recreational opportunities and support services for the traveling public in a manner that will benelit local residents." @mphasis added.) Section 1,7.6.030 is inconsistent with the Subarea Plan because practically every possible use of land is "pennitted outright" in Section 17.65.020, with the exception of industrial use. In Section 17.65.020, there are no uses listed as requiring a conditional use permit (which would allow the decision-maker to impose specific conditions to mitigate negative impacts of the use on the surrounding property). Instead, the uses permitted outight in this zone r€mge from the most sensitive (single family residential) to extremely intense (waste water treatrnent plants). Few of these permitted uses af,e defined in chapter I 8. 1 0. This is extemely problematic because a determination ttrat an application is consistent with the code is based on a comparison of the proposed use with a list of "permitted" uses in individual zoning classifications. If there are no definitions of the permiued uses to guide the Director's use of discretion, the result can be arbitary enforcement of the code. For exarnple, 'tnedical seryices" are a permitted use in this zone - would that include a hospital? This list does not appear to have been compiled using traditional zontngconsiderations, which would place compatible uses in the same zoning classification. Single farnily homes can be constructed right next to a waste water treafrnent plant - there appears to be no concern regarding the secondary land use impacts of the latter use, such as odor. A public school (included in the only defined term "public facilities" in Section 18.10.160) can be constructed right next to a tavern or pub. Letter to Jefferson County Commissioners June 27,2016 Page 9 Because Section 17.65.020 allows such a wide variety of possible uses of property to take place within this zoning classification, the County will be required to allow any use of property even if it is not listed. Review Section 17.65.020(12), which allows "other similar uses consistent with the purpose of this zone and MPR as determined by the Department of Community Development." Again, the "purpose" section (17.60.030), it includes nothing at all - other than the County's intent to make chapter 17.60 consistent with some unidentified sections ofthe comprehensive plan. Every possible use of land is allowed in Section 17.65.020, so it would be extemely difficult for the County to assert that a proposed use is not "similar" to this wide variety of undefined and vague uses. Allowing all uses to be permitted outright in a particular zone is also inconsistent with the County's actions with regard to other zones. Under Section 18.15.040, the County has established various categories of land use. These are 'trses allowed," "discretionary uses," "conditional uses" and "prohibited uses." Consider that a "waste water treatment plant," must be approved with a conditional use permit if it is to be located in a rural residential zone, yet it is allowed right next to single family residential uses inthe MPR zone. "Emergency services (police, fire, EMS)" are also subject to a conditional use permit everywhere but the MPR zone. Section 18.15.040 (table). There is a procedure in Section 18.15.045 that may or may not withstand a challenge: This code recognizes that not every conceivable use can be identified and that new uses may evolve over time. Furthermore, it establishes the administrator's authority to review proposed 'unnamed' uses for similarity with other uses in this code and to ensure consistency of the proposed use with the applicable distict. When a use is not specifically listed in Table 3-l (or, if proposed withinthe Irondale and PortHadock UGA, in chapter 18.18 JCC), it shall be reviewed as discretionary 'D' use by the administrator, using a type II process specified in Chapter 18.40 JCC. The administrator shall use the criteria in JCC 18.15.040(2) to determine and establish whether the proposed unnamed use shall be classified as an allowed use, a conditional use or prohibited within the applicable district. First, as we have explained, the County's code doesn't define most of the uses listed in the MPR zone (and we have not checked the "use table" to determine if this is true throughout the code). If the uses are not defined, then we question how the adminishator makes a decision whether a particular use is subsumed within a particular undefined term. Without definitions, the administrator's decision is Furthermore, state law requires that the County's code establish the procedure for processing a project permit (RCW Letter to Jefferson County Commissioners Jwrc27,2016 Page 10 36.708.060). The County is specifically prohibited from "making up" the procedwe for processing a project permit application after it is submitted, except for issues of code interpretation. RCW 36.708.030(3). 17.70.010 Purpose of the MPR OSR (Critical Areas Protection) zone. In Section 17.70.010 and throughout the proposed regulations, it appears that the County is attempting to establish mitical areas regulations on an ad hoc basis for the developer(s) of property in this zone. Instead of referencing the County's existing critical areas regulations (which we assume were adopted following proper procedure and using best available science), the critical areas regulations appear to have been crafted specifically for this developer, with regard to buffers, wetlands, Kettle Ponds, sole source aquifers, etc. The regulations in this section are wholly inadequate to provide any environmental protection because they are optional. 'No golf course greens should be constructed over the sole-source aquifer, and site grading and excavation should be minimized, as demonstrated by a County reviewed and approved grading plan . . ." Section 17 .70.010 imposes conditions that may or may not be consistent with the County's critical areas ordinance - and may or may not follow the procodures in that ordinance for public notice and appeal. For example, in Section 17.70.010(cX4), there is a description of the manner in which wetlands may be "filled." The County should instead be requiring that the developer submit an application for a Master Resort Plan showing compliance with the critical areas ordinance. The County should then review the application and, following the procedures in the County's critical areas ordinance, and detennine whether it meets the code requirements. The County has been required by GMA to adopt critical areas regulations to address sole source aquifers, wetlands, etc. (RCW 36.70A.172 which requires the use of best available science). There is no reason for the County's adoption of different critical areas regulations in the individual chapters of the County's code for each type of development application. This Section 17.70.010 does not actually include development regulations, it only lists a number of conditions that the County plans to impose on the MPR. Aside ft'om the problems identified above with this list, these "conditions" are duplicative, possibly inconsistent and some are unknown (because they are only referred to by an old ordinance that no one thought important enough to incorporate into the code). For example, in Subsection 8, the MPR applicant must: "identiff wildlife use areas within the site and provide for set-aside and protection of core wildlife habitat areas and connecting corridors." In Subsection 10, the following appears: "All development within the PHMPR must comply with the requirements for buffer retention, wildlife Letter to Jefferson County Commissioners lvrreZ7,Z0t6 Page I I protection, greenbelt retention and maintenance and establishment of permanent protective easements for these resouroes as well as the other specific requirements of Jefferson County Ordinance 0l-018-08, which was part of the Board of County Commissioners' approval for establishment of the Pleasant Harbor Planned Resort." The County should consider whether an enforceable condition can be crafted, given all of the above vague referencas to "set-asides," o'protection of core wildlife areas," *wildlife protection," and establishment of permanent protective easements for these resources." What wildlife will be protected? What document will evaluate the need for set-asides and determine how large the wildlife protection areas will be? If this is a process that will be accomplished administratively, after the building permit application has been submitted, public review will be effectively avoided. 17.75.020 Permitted Uses (MPR-MV zone). Same comments as under Section 17.65.020. In addition, the uses allowed as "permitted" should be defined in the Code. The public should not be required to guess at the range of possible uses of property that the County may allow in this zone. Section 17 -75-020(12) is objectionable for the same reasons set forth above - the permitted uses aren't defined at all, so what uses of land would the Director find "similar" to these undefined, vague terms? Section 17.75.020(3)(a) allows "over-water buildings " but they "must be constructed so as not to impede migrating fish and to minimize shading." Do any of the County's regulations allow a property owner to construct a new "over-water building?" In Section 17.75.040, the County has required that all new structures located within the shoreline jurisdiction must comply with the setback requirements of the Corinty's Shoreline Master Program - wouldn't an over water building violate such setbacks? 17.80.010 Resort Development. This chapter 17.80 is extremely confusing. Section 17.80.010 states that this chapter "s€ts out an environmental review proc€ss for any future resort development and provides processes for reviewing major or minor revisions to the Resort Plan." Nothing refers to chapter 18.15, which describes the procedure for obtaining a Master Resort Plan. There is no description of the manner in which this chapter 17.80 supplements chapter 18.15 (if that is even the case). Second, what is the Resort Plan, why is a separate environmental process needed to review this type of application and why is the procedure for reviewing major and minor revisions to the Plan here (instead of chapter 18.15)? Is it a comprehensive plan amendment? V/hy is there a separate environmental review process - why doesn't the application follow the same SEPA Rules as all other development? Letter to Jefferson Corurty Commissioners Ivrre27,201.6 Page 12 Under Section 17.60.040, the Cor:nty has required every development of property in the Pleasant Harbor MPR to obtain a Binding Site Plan, which apparently must follow the procedures in chapter 18.35. If there is a Binding Site Plan for the property, what is the effect of an application for a major or minor revision to the MRP and Binding Site Plan? 17.80.020 Development cap. Here, the County has established a "development cap" of _L_residenfial units and a cap of 56,608 square feet of resort cornmercial, retail, rcstatrant and conference space, not including intemal open space. Does this mean that there is no 'tap" on the amount of space devoted to waste water treatment plants, hospitals, police stations, etc.? What is "intemal ope,n space?" What is the "cap" based on? U.80.030 Resort Plan and Development Agreement Here, it states that the "Resort Plan" is the same thing as the "Master Plan," which apparently is a combination of the Binding Site Plan and the Development Agreement. This is really confusing, especially because there is no reference at all to chapter I 8.1 5. In addition, the procedures for minor and major revisions do not rcference the Binding Site Plan or the fact that a Development Agreement might need to be amended as well. 17.80.040 Permit Process for Resort Development. Isn't the process to obtain a Master Planned Resort approval in chapter 18.15? There is no reference to 18.15, and this section includes some abbreviated version of application materials and permit processing procedures- Again, this creates confusion because the County already has a procedure for Master Planned Resorts and Binding Site Plans, with a section describing the elements of a complete Binding Site Plan application and MPR application (Section 18.15.126). If the SEIS is an additional requirement for the MPR application in Section 18.15.126, the language should be clear on this point. If the County isn't requiring any SEPA review until the building permit application stage, this is inconsistent with SEPA' for the reasons cited above. 17.80.040(4) This subsection skips the process for processing the permit application, the criteria to be used to approve the application, etc., (Section 18.15.129, 18.15.132, 18-15.135) and simply announces the Department's ability to "impose mitigating conditions or issue a denial of some or all of the Resort Plan, based on the environmental review . . ." Doesn't the procedures established by the County for review of a MPR in chapter 18.15 apply? The County can't simply review the SEPA checklist or the SEIS, and then issue a decision. The County is required to first determine whether the application is complete, it must review the application for consistency with the code requirements, determine whether the criteria for approval have been satisfied, and then issue a decision. The decision may be an approval, approval with conditions or a denial. Letter to Jefferson County Commissioners Jurrc27,20L6 Page 13 f 7.80.040(5). This section is inconsistent with law and must be eliminated. It states that "following completion of the SEIS building permits may be issued, following appropriate plan review, for projects analyzed in the SEIS." If the underlying permit here is a Binding Site Plan, then the Binding Site Plan must issue before building permits may issue. If the underlying permit is the MPR, then the MPR must issue before building permits may issue. 17.80.040(6). Again, the process is completely jumbled with the statement that there must be oocompletion of review and approval of a full resort buildout plan through the SEIS process.o' The'.SEIS process" is not a stand-alone permit process. The underlying permit is either the MPR or the binding site plan. Also, phasing should be addressed in the development agreement and./or the MPR (Section 18.15.120(1Xi)). 17.80.050 Environmental Review for Resort Plan Development. In subsection (l), there is reference to o'all project level applications." What are these? Applications for Binding Site Plans? Building permits? Section 17.80.050(l) provides: "All project level applications will be presumed to meet the threshold for a SEPA threshold Determination of Significance except where the SEPA Responsible Official determines that the application results in only minor impacts." This is inconsistent with the SEPA Rules that must be adopted by the County. First, a SEPA checklist must be submitted for all applications unless they are categorically exempt under WAC 197-11-800. Next, the County's SEPA Responsible Official is required to perform the threshold determination process as described in WAC 197-1 1-330. The County can"t ignore this SEPA Rule and adopt a provision with standards for "presumptions" applicable to threshold determinations. (This is the danger in failing to adopt a SEPA ordinance and instead attempting to integrate the County's sunmary interpretations of SEPA into its code.) With regard to the use of existing documents, the County is required to follow WAC 197- 11-600, not someone's interpretation of this SEPA Rule in Section 17.80.050(l). Section 17.80.050(3) requires that subsequent phases of SEPA review include certain information - SEPA is not the underlying approval or permit. At what point in time is the developer required to perform subsequent phases of SEPA? Building perrnit application submittal is too late in the process and o'piece-meals" environmental review. Also, the timing of such review makes no sense, in light of the requirement that conditions fashioned after reviewing such information must be in the development agreement. Doesn't the developer plan to execute the development agreement after the adoption of these development regulations? Letter to Jefferson County Commissioners Jwrc21,2016 Page 14 Section 17.80.050(4) mentions a "preliminary scope for future development within the Pleasant Harbor MPR" that must be "consistent with the approved Resort Plan." At what point in time would a preliminary scope for future development be perforrred, especially if the County intends to fust sign a development agreement that vests the developer to the development regulations for the next 20 years? 17.80.060 Revisions to Resort Plan. This section provides that a comprehensive plan amendment and related zoning action is required if there is a "proposed revision of size or scope to the Pleasant Harbor MPR boundar.y or zone changes within the MPR." ln Section 17.80.080, a "major revision" to the Resort Plan is one that "will result in a substantial change to the resort including: change in use, increase in the intensity of use, or in the size, scale or density of development or changes which may have additional impacts on the environment beyond those reviewed in previous environmental documents." The description of the process and decision-makers is inconsistent. If a comprehensive plan amendment (to the text and map) is required for a major revision to the MPR, this is a legislative action performed by the County Council. Section 17.80.080(2) states that the Hearing Examiner makes the decision on major revisions, except where there is also a proposed change to the proposed boundaries of the MPR. My point is that, according to this section, a comprehensive plan amendment could be both a boundary and a zoning change. The County must establish a clear distinction between what is a Type III procedtre (quasi-judicial) to be heard by the Hearing Examiner, or a Type V (legislative) decision to be made by the County Commissioners. This is not a small problem, as the Commissioners will be immune from liability for their legislative decision-making and subject to liability for quasi-judicial decisions. It is also important that this procedure be clear for the public, developers and planning staff, because the appeal procedure will be different, depending on the type of action taken by the C-ounty. Hearing Examiners also should not be involved in legislative decision-making -- that is the role of the legislative body. It should also be noted that the County is not required to approve a comprehensive plan amendment solely based on the criteria in Section 17.80.080(3). However, the County is required to consider whether the application is consistent with the Growth Management Act (chapter 36.70A RCW) before approving a comprehensive plan amendment. (Consistency with GMA has been omitted from Section 17.80.030(3). Letter to Jefferson County Commissioners Jtul'rc27,2016 Page 15 .17.80.070 Minor revisions. Here, the County allows the Director to address minor revisions to the MPR when "such revisions do not result in a substantial change to the intent or purpose of the Resort Plan in effect." However, this section lists four other criteria that must be met before the revision will be deemed "minor." One criterion allows a minor revision when the developer wants to propose a new use that "modifies the recreational nature and intent of the resort." Section 17.80.070(1)(d). Gven the variety of uses that are allowed, it appears that the developer would be able to propose just about anyttring through a minor revision - which is a Type II process that the Director could approve without a public hearing. The County is required to list all of the elements of a complete application for a perrnit in its development regulations (RCW 36.70B.080). This section 17.80.070 does not address this statutory requirement, yet one criterion for a minor revision is that it must not "have additional impacts on the environment or facilities that are addressed in the development plan." (What is the "development plan?" Is that the MPR?) If the County doesn't require that a complete application for a minor revision include a SEPA checklist, how will the County know whether or not the proposed "minor" revision has "additional impacts on the environment?" Development Aereement. Section 18.40.830(5) is inconsistent with law (RCW 36.708.170(1)) because it allows the County to execute a development agreement with a property owner that is inconsistent with its existing development regulations. Please review the ordinance provided for development agreements and the article on *ris subject. CONCLUSION Here is a sunmary of our comments and objections to the adoption of the new development regulations: 1. The County has not complied with the Growttr Management Act by adopting a hansportation concurrency ordinance as required by RCW 36.70A.070(6)(b). The County's reference to maintenance of the levels of service in the comprehensive plan is insufficient. 2. The County's development regulations, which provide an incomplete summarization of the County's understanding of SEPA, instead of implementing the SEPA Rules as they are written (in Chapter 197-ll WAC), a.re contrary to law. Letter to Jefferson County Commissioners Jrne27,2016 Page 16 3. The County's development regulations are unintelligible with regard to the type(s) of approval required for the PleasanJ Harbor resort, the elements of a complete application, the decision-makers on the application, the criteria for approval, the appeal procedures, the procedures for amendment (major or minor), etc. The County has adopted what appears to be two separate procedures for master planned resort plans in titles 17 and 18, and there are few, if any cross references to the other sections. Many provisions are inconsistent and incomplete. 4. The County has adopted zoning designations for the Pleasant Harbor zones that benefit only the developer, and provide a significant detiment to the public. The County apparently plans to allow a wide variety of incompatible (and undefined) uses in the same zone, without any additional review of the negative impacts on the surrounding property or the public. This is not only contrary to sound planning, it also is inconsistent with the County's code with regard to the same uses in other zones. We could find nothing in the comprehensive plan or subarea plan that allowed many of these uses. 5. The County was required to adopt and enforce a critical areas ordinance using best available science. Similar to the County's treatment of SEPA, there are partial summaries of the CAO in the new development regulations. This creates confusion because there is no way to tell whether the developer is required to comply with the CAO or just the development regulations relating to the MPR. 6. There are significant differences in legislative vs. quasi-judicial processing of applications and approvals. The County's proposed development regulations mix up the two types of processing, and allow legislative actions (such as a comprehensive plan) to be amended through a quasi-judicial action (hearing examiner, Type III process). A developer is apparently required to obtain multiple approvals, yet the process for revisions do not address modification of the other approvals (such as a binding site plan). This is not only contrary to law, it also confi:ses everyone, could impose liability on the County in situations where it has none, and forces the public to hire attomeys just to figure out how to participatelappeal the County's actions. The above is only a partial sunmary of our objections. If you would like furtlrer detail on my comments, please let me know. Thank you for the opportunity to comment on your development regulations. Letter to Jefferson County Commissioners Jtne27,2016 Page 17 very A. Enclosures Model SEPA Ordinance Model Concurrency Ordinance Model Development Agreement Ordinance Development Agreement Article cc: Clients: Carla Kelly, Rebecca Mars, Carol Morris