HomeMy WebLinkAbout161Jefferson County Commissioners
July 12,2016
Page 6
I have worked as an attorney for cities of every size - from Seattle to towns of 500 people
-- and fully understand the budget constraints Jefferson County may be experiencing. For
this reason, I forwarded model ordinances for the County to consider adopting. If you
have any question about whether these ordinances are appropriate, please contact the
Department of Ecology. DOE should be able to explain that the County needs to do what
is required by law - adopt the SEPA Rules in the County's code, adopt a storm water
ordinance, adopt a critical areas ordinance, etc. The County can also visit the Municipal
Research Center website (mrsc.org) to review other city and county codes. Feel free to
ask the attomeys at MRSC about me and my model ordinances. Whatever you do, my
recommendation is that the County obtain advice from an experienced land use attorney
on the issues raised in my letter before adopting any new development regulations or
signing the development agreement.
Please let me know if I can provide any further assistance. Thank you.
yours,
Carol
cc:Ms. Carla Kelly, Ms. Rebecca Mars
Jefferson County Commissioners
July 12,2016
Page 5
(a) The comprehensive plan specifically identifies policies to guide the
development of master planned resorts;
O) The comprehensive plan and development regulations include
restrictions that preclude new urban or suburban land uses in the vicinity
of the master planned resort, except in areas otherwise designated for
urbangrowth under RCW 36.70A.1l0;
(c) The county includes a finding as part of the approval process that
the land is better suited, and has more long-term importance, for the
master planned resort than for the commercial harvesting of timber or
agricultural production, if located on land that otherwise would be
designated as forest land or agricultural land under RCW 36.70A.170;
(d) The county ensures that the resort plan is consistent with the
development regulations established for critical areas; and
(e) On-site and off-site infrastruchre and service impacts are fully
considered and mitigated.
Id. Mn Mann has not identified the policies in the Brinnon Comprehensive Plan that
gurde the development of master planned resorts. I am unaware of any comprehensive
plan or development regulations that satisfy RCW 36.70A.370(4Xb) above. With regard
to critical €rre€rs, it appears that instead of requiring that the developer comply with the
County's critical areas ordinance (if the County has one), the proposed development
regulations establish certain critical areas regulations specifically for this'particular
development. (This is covered in my letter dated Jlune27,2016 onpage 10.)
The County is required to adopt critical areas regulations based on "best available
science." RCW 36.70A.172. If the County adopts development regulations that include
critical areas regulations specific to individual projects on an ad hoc basis, there is no
assurance that best available science was even considered. Furthermore, critical areas
regulations should apply to all developers, and individual developers should not be
allowed to pick and choose between the regulations they believe are favorable to their
development.
5. "Jefferton County can no longer ignore the economic and social-recreational
and health requirements of the South-Section of the County."
Mr. Mann apparently believes, without any support in law or fact, that the County is
required to consider the benefits of the proposed development, even if the County fails to
follow the law in the approval process. My letter of June 27,2016 and this letter have
been written to inform the County of the legal requirements affecting this proposal.
Nothing in either letter has requested denial of any development proposal.
Jefferson County Commissioners
July 12,2016
Page 4
of a concurrency ordinance is not optional, nor is the statutory requirement satisfied if
"Public Works is very careful about creating 6year tansportation improvement plans and
is quite aware of how to measure LOS." (This was the response I received from David
Alvarez, the County's former Chief Civil Deputy, in an e-mail dated June 28, 2016).
Other cities and counties have complied with this law, and there is a substantial body of
case law that has developed on transporation concurrency ordinances. Seq Boehm v.
Vancouver, I 1 1 Wn.App. 711 , 47 P .3d 137 (2002); Montlake Community Club v. Central
Puget Sound Growth Management Hearings Board, 110 Wn.App.73l,43 P.3d 57
(2002); City of Bellevue v. East Bellevue Community Council, I 19 Wn.App. 403, 81 P.3d
148 (2003).
The point I was trying to make in my Jwrc27,2016letter was that the Countyneeds to
immediately adopt a concurency ordinance. It needs to be in place prior to the time
that the County adopts any new development regulations or considers any
additional development proposals. The statutory requirement for the County to adopt
and enforce a ffansportation concurrency ordinance is not satisfied by the developer's
reduction of density in an application.
3. "The potential for run-offof surfac6 water on the site has been mitigated in
our Civil Engineering report. ..'
Again, the County is required by law to adopt a stormwater ordinance and enforce it.
Please contact the Washington State Departrnent of Ecology to confirm.
Once the County adopts a stormwater ordinance, the County should implement WAC
197-ll-158 (which the County should adopt by reference in its new SEPA ordinance).
This SEPA Rule allows the County to rely upon existing plans, laws and regulations in
certain limited circumstances.
4. 6'The Brinnon Comprehensive Plan from the 1990's recognized this area as
ideal for building a community for short and long term occupancy. This is exactly
what we are proposing. . .'
The mere fact that there is mention in the comprehensive plan of an area's suitability for
a particular use does not automatically require approval of any implementing ordinances
or the proposed project. As the County should be aware, adoption of amendments to the
comprehensive plan and development regulations must follow RCW 36.70A.360. Under
RCW 36.704.360(4), a master plarured resort may be authorized by a county onlv if:
Jefferson County Commi ssioners
IuJy 12,2016
Page 3
Valley. It would also, of course, add substantially to the aesthetic loss.
Third, alignment of the Norttr Creek to accommodate the shopping center,
together with anticipated increases in runoff, might create a danger of
flooding. Finally, the unstable peat soil on which the center is to be built
may settle unevenly, with consequences which have not yet been
investigated.
Under these circumstances, Bothell may not act in disregard of the
effects outside its boundaries. Where the potential exists that a zoning
action will cause a serious environmental effect outside jurisdictional
borders, the zonine bodv must serve the welfare of the entire affected
communitv. If it does not do so. it acts in an arbitran and canricious
Eq4gpg The precise boundaries of the affected community cannot be
determined until the potential environmental effects are understood.
It includes all areas wherrc a serious impact on the environment would
be caused by the proposed action.
SAVE,89 Wash.2d at 868-69 (emphasis added).
Agaur, we urge the Jefferson County Commissioners to not accept the advice of the
developer, and to follow the law. The Commissioners' thoughtfrrl consideration of
environmental impacts that would flow from this proposed project outside the County's
borders is required.
Also, GMA allows an appeal of the County's ordinance -- as it relates to GMA, the
Shoreline Master Program or SEPA -- to the Growth Management Hearings Board..
RCW 36.70A.280. This appeal can be filed by "a person who has participated orally or
in writing before the county . . . regarding the matter on which a review is being
requested." RCW 36.70A.280(2). Clearly, it is not "nonsense" for the Commissioners to
consider the input from the entire affected community - not just the comments of the
developer and its supporters.
2. *Her main conoerns it appears relates to transportation. This is why we
reduced the intensilication of our application by 33.5%. I will ask our Traflic
Engineer to amend his report to reflect the reduced density and also the intended
use as a Community rather than just a Resort for short and long term use.'
This misses the mark. The County has been required, since the early 1990's, to adopt
and enforce a transportation concrurency ordinance. RCW 36.70A.070(6Xb). Adoption
Jefferson County Commissioners
Jru/ry 12,2016
Page2
The SAVE court described the test for deterrnining whether or not such a group of
individuals had standing to file an appeal of Bothell's ordinance:
A basic two-part test for determining whether a corporation has standing
was set out in Data Processing Services v. Camp,397 U.S. 150, 152-53,
90 s.ct. 827,830,25L.8d.2d 184 (1970). The first part ofthat test, that
the interest sought to be protected be 'arguably within the zone of interests
to be protected or regulated by the statute or constitutional guarantee in
question,' is easily met in environmental suits because of the abundance of
laws affecting use of our natural resources. More troublesome for
environrnental goups has been the second part of the test, the requirement
that the corporation allege the challenged action has caused 'injury in
fact,' economic or otherwise. In practical terms, an organization must
show that it or one of its members will be specifically and perceptibly
harmed by the action. . . . It is interesting to note that federal cases do not
distinguish between non-profit corporations and unincorporated
associations in determining the standing question. . . . We agree that a
non-profit corporation or association which shows that one or more of its
members are specifically injured by a government action may represent
those members in proceedings for judicial review. . . . We adopt the
federal approach to the requirements of standing to gain review of this
zoringaction.
Id., 89 Wash.2d at 867 -68. Not only did the SAVE court find that the environmental
Soup had standing, the court also found that the ordinance was "arbitrary and capricious
in that it failed to serve the welfare of the community as a whole." Id., at 870. This was
because Bothell's environmental impact statement failed to address serious problems
created by the shopping center construction, which "would have serious detrimental
effects on areas outside Bothell's jurisdiction." Id,, at868.
Specifically, the court found that:
Agricultural and low density residential use of land around the center
could not be maintained. Pressures for secondary business growth would
be severe. Not only would desirable agricultural land be lost, but
intensified commercial uses would require substantial investunents in
highways, sewers, and other services and utilities. The economic and
aesthetic values of the essentially rural character of the Valley would be
lost. Second, highway construction requiring millions of dollars of local,
state and federal funds would be necessary. Serious increased traffic
congestion would create a potentially serious air pollution problem in the
Morris Law P.C.
July 12,2016
Jefferson County Commissioners
Phil Johnson
David Sullivan
Kathleen Kler
I 820 Jefferson Street
Port Townsend, WA 98368
Re: Development Regulations for Pleasant llarbor Master Planned Resort
Dear Board of County Commissioners:
This letter responds to the July 1, 2016 e-mail from Garth Marur of the Statesman Group.
Mr. Mann's comments are provided in bold below, with my response.
l. "Many of the objectors to our application neither pay taxes in this county and
-1r", do not live in Jefferson County. Supporting their position is pure nonsense
The Commissioners are required to serve the welfare of the entire affected communitv.
and carurot confine its review of the effects of the proposed development regulations or
project to the boundaries of Jefferson County. Save a Valuable Environment (SAYE) v.
City of Bothell, S9 Wash.2d 862,869,576P.2d401 (1978).
InSAI/8, a nonprofit environmental groqp filed an appeal of a rezone ordinance adopted
by the City of Bothell for a parcel of farrnland to allow construction of a shopping
center. The ordinance was appealed to superior court (this was prior to the adoption of
ttre Growth Management Act (chapter 36.70A RCUI)) as illegal spot zoning. One of the
questions presented in the appeal was whether SAVE had standing to maintain an action
to review the zoning ordinance. Id., 89 Wn.2d at 865.
SAVE, a nonprofit corporation, was formed for the declared purpose of working to
maintain the quality of the living environment in a defined area within King and
Snohomish County, which included the City of Bothell. SAVE's members included
residents of Bothell as well as members of King and Snohomish County. 1d.,89 Wn.2d
at 865.
3304 Rosedale Steet NW, Suite 200, Gig Harboa WA 98335-1805
Phone: 253-85I-5090 Fax: 360-850-1099 Email: carol@carolmorrislaw.com Web: www.carolmorrislaw.com
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