HomeMy WebLinkAbout162David W. Johnson
From:
Sent:
To:
Cc:
Subject:
Zoe Ann Lamp
Wednesday, July 13,2016 1:49 PM
David W. Johnson
Eric Kuzma, Monte Reinders
RE: Development Regulations for Pleasant Harbor
David,
Concurrency for Transportation Facilities is required under JCC 1B.30.020(5) General Development Standards which
states:
(5) All land use activities shall be served by appropriate transportation facilities. Transportation facilities shall be
adequate to meet the level of service standards adopted in the Jefferson County Comprehensive Plan and the
appropriate design standards referenced in JCC 18.30.080(1)(a). lf transportation facilities would become
inadequate, the applicant shall be required to provide necessary improvements and/or implement alternative
measures such as transportation demand management (TDM), project phasing, or other measures acceptable to
Jefferson County that will maintain the adopted level of service standards and meet design standards. lf
transportation facilities are not adequate, Jefferson County shall not approve the proposed development.
Transportation facilities shall be deemed adequate if necessary improvements are planned and designated
funding is secured in the Jefferson County Six-Year Transportation lmprovement Program. [Ord. 4-07 I 2; Ord. 8-
0651I
That said, Highway 101 is identified as a highway of statewide significance. The concurrency requirements of the GMA
do not apply to highways of statewide significance, except in island counties. IRCW 36.704.070(6)(a)(iiiXC)]
Through the SEPA process, Public Works and WSDOT reviewed the Pleasant Harbor MPR proposal. As a result, the
developer is required to make transportation related improvements including intersection improvements to Highway
101 at Black Point Road.
Sincerely,
Zoe Ann
Zoe Ann tamp, AICP
Tra nsportotion P I a n ne r
Jefferson County Department of Public Works
623 Sheridan Street I Port Townsend, WA 98368
Ph: 350.385 .9L621 Fax: 350.385.9234
E m o i I : zlam p@co. ieffe rso n.wa. us I www.co. iefferson.wa. us/pu blicworks
From: David W. Johnson
Sent: Tuesday, July L2,2OL61:05 PM
To: Monte Reinders <MReinders@co.jefferson.wa.us>; Zoe Ann Lamp <ZLamp@co.jefferson.wa.us>
Cc: David W. Joh nson <djohnson @co.jeffe rson.wa.us>
Subject: FW: Development Regulations for Pleasant Harbor
See the bottom of page 3 and top of page 4 regarding a "transportation concurrency ordinance." Do we have such an
ordinance, and if not, why not?
1
Thanks!
From: David W. Johnson
Sent: Tuesday, July t2,2OL612:51 PM
To: JT Cooke <JT@houlihan-law.com>; Garth Mann <Garth.Mann@statesmangroup.com>
Cc: David W. Johnson <diohnson @co.iefferson.wa.us>
Subject: FW: Development Regulations for Pleasant Harbor
FYI
From: Carol Morris [mailto:carol a morris@msn.com]
Sent: Tuesday, July L2,2OL6 12:19 PM
To: jeffbocc <ieffbocc@co.iefferson.wa.us>; David W. Johnson <diohnson@co.iefferson.wa.us>
Subject: Development Regulations for Pleasant Harbor
PIease see the attached.
Carol Motris, Motris Law, P.C.
33(X Rosedale Street N,W., Suite 2fi)
Gig Harbor, WA 98335
(2s3) 8s1-5090
F: (360) 8s0-1099
caml/Dcarolmonislaw-com
Website: carclmorislaw.com
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2
Morris Law P.c.
July 12,2016
Jefferson County Commis sioners
Phil Johnson
David Sullivan
Kathleen Kler
I 820 Jefferson Street
Port Townsend, WA 98368
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JUL t z 2$1$
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Re: Development Regulations for Pleasant Harbor Master Plarmed Resort
Dear Board of County Commissioners:
This letter responds to the July l, 2016 e-mail from Garth Mann of the Statesman Group.
N{r. Mann's comments are provided in bold below, with my response.
1. "Many of the objectors to our application neither pay taxes in this county and
many do not Iive in Jefferson County. Supporting their position is pure nonsense
),
The Commissioners are required to serve the welfare of the entire affected communitv.
and cannot confine its review of the effects of the proposed development regulations or
project to the boundaries of Jefflerson County. Save a Valuable Environment (SAVE) v.
City of Bothell, S9 Wash.2d 862,869,576P.2d401 (1978).
In SAVE, a nonprofit environmental group filed an appeal of a rezone ordinance adopted
by the City of Bothell for a parcel of farmlan( to allow construction of a shopping
center. The ordinance was appealed to superior court (this was prior to the adoption of
the Growth Management Act (chapter 36.70A RCW)) 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. ld.,89 Wn.2d
at 865.
3304 Rosedale Street NW Suite 200, Gig Harbor, WA 98335-1805
Phone: 253-851-5090 Fax: 360-850-I099 Email: carol@carolmorrislaw.com Web: www.carolmorrislaw.com
Jefferson County Commissioners
July 12,2016
Page2
T\e SAYE court described the test for determining 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, 25 L.Ed.zd I 84 (1970). The first part ofthat tost, 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
environmental groups 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
zoning action.
Id., 89 Wash.2d at 867 -68. Not only did the SAVE court find that the environmental
group 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 investments 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
Jefferson Coqnty Commissioners
July 12,2016
Page 3
Valley. It would also, of course, add substantially to the aesthetic loss.
Third, alignment of the North 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 zonins body must serue the welfarc of the entire affected
communitv. If it does not do so. it acts in an arbjtrarv and capricious
manner. The precise boundaries of the affected community cannot be
determined until the potential environmental effects are understood.
It includes all areas where a serious impact on the environment would
be caused by the proposed action.
SAVE,89 Wash.2d at 868-69 (emphasis added).
Again, we urge the Jefferson County Commissioners to not accept the advice of the
developer, and to follow the law. The Commissioners' thoughtful 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 concerns it appears relates to transportation. This is why we
reduced the intensification of our application by 33.5%. I will ask our TraIIic
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.tl
This misses the mark. The County has been required, since the early 1990's, to adopt
and enforce a transportation concurrency ordinance. RCW 36.70A.070(6Xb). Adoption
Jefferson County Commissioners
Jily 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 6 year transportation improvement plans and
is quite awile 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 transportation concurrency ordinances. See, Boehm v.
Vancouver, 111 Wn.App. 711, 47 P.3d 137 (2002); Montlake Community Club v. Central
Puget Sound Growth Management Hearings Board, 1 1 0 Wn.App . 731, 43 P.3d 57
(2002); City of Bellevue v. East Bellevue Community Council, 119 Wn.App. 403, 8l P.3d
148 (2003),
The point I was trying to make in my Jwrc 27,2016 letter was that the County needs to
immediately adopt a concrurency 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 transportation concurrency ordinance is not satisfied by the developer's
reduction of density in an application.
3. '(The potential for run-off of 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 Washinglon State Deparftnent of Ecology to confrm.
Once the County adopts a stormwater ordinance, the County should implement WAC
197-11-158 (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. "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 planned resort may be authorized by a county onlv if:
Jefferson County Commissioners
Iuly 12,2016
Page 5
(a) The comprehensive plan specifically identifies policies to guide the
development of master planned resorts;
(b) 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
urban growth under RCW 36.704.1l0;
(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 aglicultural 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 infrastructure and service impacts are fully
considered and mitigated.
Id. Mr. 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 satisff RCW 36.70A.370(4)G) above. With regard
to critical Err€as, 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 Ivne 27,2016 on page 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. 6'Jefferson County c&n 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 27,2076 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
Jvly 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 attorneys 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 fi.rther assistance. Thank you.
yours,
Carol
cc:Ms. Carla Kelly, Ms. Rebecca Mars