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See you both Friday.
Lorna
On Oct 5,2016, at8:44 AM, Cynthia Koan
Hi Patty,
Lorna and Darrell Smith <ecosmithspt@gmail.com>
Wednesday, October 05, 2016 L2:04 PM
Koan Cynthia
Patty Charnas
Re: PC Letterto BOCC RE Pleasant Harbor MPR lCarol Morris letter
SIGNED FINAL PC Letter to BOCCT-6-2016 RE Pleasant Harbor MPR.pdf; Untitled
attachment 00023.htm; Barbara Moore-Lewis sending to PC Carol Morris letter
addressed BOCC.pdf; Untitled attachment 00026.htm; Carol Morris Letter to BOCC 6_27 _
L6.pdf; Untitled attachment 00029.htm
I read with interest the articles in today's PT Leader about the clear-cutting at Port Ludlow and have some
thoughts on how this should be addressed in the future. (1) record all native growth protection areas and
restrictions on the title to affected properties so it is clear to all what those restrictions are. Put teeth in the
enforcement of violations. (2) Counties have the option to review/approve /condition DNR Forest Practices
permits for "Class IV Special" actions which are for land use conversion. I seem to recall that violation of the
conditions can result in a7 year moratorium on any development of the property, and other
penalties. Something to consider. More work in the short run for Jefferson County, but obvioously a cost-saver
in the long-run if it avoids other such situations.
com> wrote
I'm sending you the letter the Planning Commission send to the BOCC on July 6th,2016. This
letter was to go along with the Brinnon/Pleasant Harbor MPR regulations as recommended by
the PC as the story of our six months of work and what we learned.
I'm also forwarding to you a letter forwarded to the Planning Commission by Barbara Moore-
Lewis from Carol Morris, an attorney who focuses on land use law. These two letters represent
conclusions Loma and I reached independently as we studied this complex and obscure process
but that share some common themes and are well-articulated.
Sincerely,
Cynthia
cc: Lorna
1
Michelle Farfan
July 6,2016
Board of County Commissioners
Jefferson County Courthouse
1820 Jefferson Street
Port Townsend, WA 98368
Dear Kathleen Kler, BOCC Chair; Phil Johnson; and David Sullivan;
The Jefferson County Planning Commission (PC) has spent the last six months reviewing the Pleasant Harbor
Master Planned Resort (MPR) project with the goal of making a recommendation to the Board of County
Commissioners on the Development Regulations (code) that will govern future development of this
Comprehensive Plan designated MRP site at Black Point near Brinnon, Washington.
As you know, it is not without significant concerns that we send these recommendations forward to you. We will
attempt here to lay out what we leamed in our six month study and review, what the regulations before you
represent, and what we believe still needs to be done. We also want to lay out how we believe this process should
have gone and should go from here forward. This learning curve has been steep and mostly "self-taught" without
much support from a Department of Community Development (DCD) that has been without a full-time DCD
Director for nearly a year and without a DCD Manager for over a year and a half. This is our attempt to convey to
you the depth of what we have learned and now understand as a result of our study.
What is the action?
From the very beginning of our review we sought clarification of the "Proposed Action" which triggered the
current SEPA review. Here is what is stated in the SFEIS:
"PROPOSED ACTIONS: Pleasant Harbor Master Planned Resort Draft Supplemental EIS
Jefferson County is considering the adoption of amendments to Title 17 and 18 of the Jefferson County Code
to provide a zoning ordinance and zoning map for the Master Planned Resort (MPR) approved by the Board
of County Commissioners (BoCC) by Ordinance No.01- 0128-08, adopted January 28,2008. [n addition, the
County is considering the text of a proposed Development Agreement, as required by the Comprehensive
Plan, to guide the development, phasing, and standards for the proposed Master Planned Resort (MPR),"
The purpose of the EIS, therefore, should have been to examine alternative language for the development
regulations, NOT alternatives to a specific development proposal and its accouterments. This point remains a
significant point of confusion for all parties involved.
In our review we held a public hearing in Brinnon on January 6'h, closely following release of the Final
Supplemental Environmental Impact Statement (FSEIS), where we heard from a divided public. Vocal
proponents and opponents filled the Brinnon Elementary School Gym and stood in line to speak, both for and
against this development. At that hearing it was very clear that the public was unaware of the proposed action,
approval of MPR development regulations, and understandably believed the hearing was addressing approval of
the Statesman Development proposal specifically, not proposed regulations. The FSEIS certainly contributed to
that confusion.
I
Since then we have been educating ourselves on the history and current state of this proposal by reviewing the
FSEIS and its accompanying letters and other documents, as well as fifteen years of public and tribal comment on
development of this site.
What we have learned about the Pleasant Harbor Master Planned Resort (MPR) site:
The site designated as the Pleasant Harbor MPR takes up approximately one third of a peninsula on Hood Canal
known as Black Point. Black Point sits directly adjacent the Duckabush River estuary and just south of the
Dosewallips River estuary, two important salmon and steelhead rivers, on a stretch of beach rich in shellfish and
other marine life and on the south end of Hood Canal, a body of water with one entrance and one in which little
exchange of water from the Puget Sound, the Strait of Juan de Fuca, and the Pacific Ocean can occur. What goes
into this body of water primarily stays in this body of water.
The Black Point/Pleasant Harbor MPR is a particularly and specifically sensitive site for the following reasons:
a. The site is located on, and in close proximity to, the Hood Canal, a sixty-mile long fjord with limited tidal
exchange.
b. The site includes unusually large kettles, geological formations formed by retreating glaciers.
c. The site is located between the Dosewallips and the Duckabush rivers, two major salmon habitats.
d. The site is surrounded by significant shellfish habitat with a harvest of 140,000 lbs. yearly.
e. The site's critical role in aquifer recharge.
f. The site includes a small freshwater aquifer surrounded by salt water, making it particularly vulnerable to
saltwater intrusion.
g. The additional traffic that will contribute to significant runoff impacts from increased traffic on WA-101.
h. The likelihood that wastewater, even after advanced treatment, will still include significant pesticides,
herbicides, and an overabundance of nutrients, as well as human hormones and other medications is
high. These contaminants, if introduced into the aquifer, even after treatment, can pollute wells and seep
out into tidal beaches that rely on fresh water from the aquifer mixed with salt water for healthy marine
habitat. Excess nutrients are a major contributing factor in toxic algae blooms and low oxygen events in
the Hood Canal,
Black Point between two estuaries Hood Canal
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What we have learned about this MPR process:
The approval of the Brinnon/Pleasant Harbor Master Plan Resort (MPR) will be largest single land use decision
made by the Jefferson County BOCC since enactment of the Growth Management Act (GMA) in 1990.
Two primary documents await approval: 1) the Development Regulations or "code" that will be incorporated into
the Jefferson County Code (JCC) and2) the Development Agreement between the county and a specific
developer.
In our study we have discovered the following:
. No study specifically addressing shellfish impact and tribal harvest rights was found to be included in any
EIS.. Other important environmental concerns raised in comments in the Draft Supplemental EIS were not
addressed, or were addressed only superficially, in the Final Supplemental EIS (FSEIS).
. Jefferson County, as an agent of the State, is a party to the Point No Point Treaty of 1855.o Black Point is within the usual and accustomed grounds included in the Point No Point Treaty of 1855, (the
ceded area) which entitles treaty tribes certain named and established rights to hunting, fishing, gathering
and the right to carry on cultural and spiritual practices. The Tribes have standing as natural resource co-
managers.. Comments submitted repeatedly at different points in the process by the Port Gamble S'Klallam Tribe
(PGST) were not addressed in the FSEIS.. PGST comments to the Draft SEIS were not included in the Final SEIS.. An anthropology report, addressing the cultural significance of the kettles, was not found to be included in
any Environmental Impact Statement.. Government to government consultation with the PGST took place only in the last several months, when the
PGST insisted upon it.o The Planning Commission was informed by staff (David Wayne Johnson) late in the process that draft
regulations put before the Jefferson County Planning Commission (JCPC) had in fact been drafted by
Statesman Group and written to accommodate the company's specific development proposal. Those draft
regulations included language naming a specific developer (Statesman) addressed the specifics of
Statesman's yerto-be-approved development and included references to a development agreement that has
yet to be developed/approved.. DCD recommended enacting development regulations and a developer agreement in a single action, an
impossibility if the developer agreement is to reflect the direction of the adopted regulations. The PC was
told that if Statesman withdrew, the regulations would also be withdrawn.. Requirements included in the Board of County Commissioners (BOCC) Ordinance 01-0128-08 that the
tribes be consulted, as well as other requirements such as the preservation of at least one kettle, were not
included in the proposed regulations.
Where the process appears to be out of sequence:
The Revised Code of Washington (RCW) 36.70a.360 (4)(a) states:
"A master planned resort may be authorized by a county only if: (a) The comprehensive plan specifically
identifies policies to guide the development of master planned resorts;"
In keeping with the above language, Chapter 3 (Land Use and Rural Development) of the current (Revised by
ORD#01-0105-09) Jefferson County Comprehensive Plan (CP) Goals and Policies, LNP (Land Use Policy) 24.12
states:
J
"LNP 24.12 The County shall prepare development regulations to guide the review and designation of
master planned resorts that include, at a minimum, compliance with these policies."
The BOCC adopted Ordinance 0l-0128-08 allowing the CP MPR designation on Black Point references both
RCW 36.70A.360 and our own Jefferson County Goals and Policies (24.1-24.13) following completion of the
original FEIS. However, we find no evidence that general regulations have been adopted (not specific to any
particular MPR) "to guide the review and designation of master planned resorts", which are required both by the
RCW and by our own CP LNP 24.12.
As proposed by Jefferson County Department of Community Development (DCD), the development regulations
and the development agreement were to be submitted together in a single action to the BOCC. The Planning
Commission was asked to review and recommend adoption of Development Regulations by the BOCC that
incorporate and reference a Development Agreement that has not yet been put before the Planning Commission.
In the absence of such regulatory directives as is required (See RCW and LNP references above), we find the draft
regulations specific to this site and Statesman's specific development proposal now before the PC out of sync
with WA State code and Jefferson County Comprehensive Plan policy.
That policy/code, when enacted, should clearly spell out a sequence for creating and approving the comprehensive
plan designation of a new MPR, when and how regulations governing that MPR should be drafted and adopted,
what action prompts SEPA Review, how applications for specific MPR development proposals are to be reviewed
and approved, and how the development agreement should relate in timing and in fact to the regulations
governing the MPR site and the application for the specific MPR development.
We believe this step is required before any further review of this MPR can take place. This general MPR Policy
should include the steps required to create development regulations for any MPR in Jefferson County and for each
MPR designated area.
MRSC recommendations for MPRs in small rural counties:
According to Master Planned Resorts "Washington Style," MRSC of WA State (2003): "A large and complex
MPR development can add substantially to the workload of county staff, particularly in a small rural county.
Significant staff time and often specialized expertise from outside the county may be required during the
development review process, construction and follow-up monitoring stages." A sample agreement for such
services is included in that guidance document. Again, this is pertinent guidance that the Planning Commission
had to discover and research on our own.
Why members of the Planning Commission took on a draft edit:
On April 1Sth a Government to Government meeting between the BOCC and the Jamestown S'Klallam Tribe
(PGST) took place at the Jefferson County Courthouse in BOCC chambers. The result of that meeting was an
agreement between the BOCC and the PGST that technical staff employed by the PGST, Jefferson County DCD,
and Statesman Group would hold further meetings to work out the technical and environmental requirements of
this site and this development. As far as the Planning Commission is currently aware, these technical meetings
have not taken place, and no agreement has been reached.
In anticipation of that Government to Government meeting and again afterward, the Planning Commission
repeatedly asked that the regulations be taken back to DCD staff so that deficiencies in the draft regulations could
be addressed, references to the specific developer removed, and time allowed for the government-to-government
negotiations with the PGST to conclude, with the results incorporated into a future draft, before the Planning
4
Commission spent any more time on the development regulation recommendation process. These requests were
denied and the BOCC instead gave the PC a deadline of June z}'h , 2016 (later extended by the BOCC to July I 1'h,
2016), by which date a recommendation from the PC for development regulations would be made to the BOCC or
else the BOCC would consider the PC to have no recommendation.
Feeling that it was important to pass our learning onto the BOCC in some form, some PC members stepped in to
revise the proposed regulations themselves. The PC's revised regulations removed references to a specific
developer inappropriate at the regulatory level, included regulations that address the development review process
and requirements of this particularly sensitive site, and clarified that legislative action on the development
regulations needs to proceed the review and approval of any related development agreement so that the agreement
can be written to comply with those enacted regulations. It is the position of the PC that this, work should have
been done at staff level or by a consultant to this MPR process before the proposal was brought before the
Planning Commission in the first place. Also, PC members attempted to include appropriate references to the 30
Conditions included in Ordinance #01-0128-08 which were not included in the draft regulations the PC was given
to review.
Using the PC Draft, the entire Planning Commission spent approximately eight hours during the course of two
public meetings going line by line over the development regulations to find what we could, as a majority, send
forward to you.
Each member of our planning commission has had different questions about this process and about the proposed
development, but as a whole we worked hard to find a way to make recommendations that allow the development
to move forward while necessarily protecting this particularly sensitive site, the aquifer for the Black Point area
the MPR would draw from, the area's role as a critical aquifer recharge area, surrounding shellfish beds fed by
that aquifer, neighboring estuaries and salmon habitat, its unique geology and cultural history, and its location on
Hood Canal.
We believe in the case of this particularly environmentally sensitive location, the county has a legal right, and in
fact a legal and ethical imperative, to go beyond the mitigation measures that are proposed in the FSEIS in order
to be consistent with the Comprehensive Plan, Critical Areas Ordinance, the UDC and state and federal
requirements for the protection of the environment. In fact, there is valid concern that adequate mitigation of
significant environmental impacts may not even be possible given the scale of the proposed development and the
sensitivity of the site and surrounding area.
How we think this process should go:
We believe a clearer, fairer, and more defensible sequencing for this and all future MPRs the BOCC considers
would be to:
l. Clarify and expand the Comprehensive Plan Policies and Jefferson County Code for designating and
considering any and all new MPRs to include a clear and specific order for MPR designation, creation,
and adoption of regulations as a clear and distinct action subject to SEPA Non-project Review.
2. Adopt development regulations (county code) for this specific MPR that would clearly articulate the
process for, and requirements of, any proposed development application within this MPR, only after full
public review and consultation with any tribal governments with jurisdiction. Such regulations should be
based on the 30 specific conditions outlined in the BOCC ordinance, the general policies of the Jefferson
County Comprehensive Plan, as well as the specific policies pertaining to MPRs, and the Brinnon
Subarea Plan.
3. Once a MPR development application receives approval, then and only then should a development
agreement be drafted that would meet the requirements of the adopted regulations and clarify the
5
agreement between the county and the developer. Only after adoption of the developer agreement would a
developer have vested rights.
In this way, were the current developer to choose not to proceed with this project, a future party would be able to
proceed with a development proposal on this site knowing what that process would entail and what the
requirements would be, for the protection of the county and transparency for all applicants as well as other
interested parties, including other agencies or tribes with jurisdiction, the surrounding community, and the general
public.
The Jefferson County Comprehensive Plan, MPRs, and this proposal:
Even though our Comprehensive Plan allows for Master Planned Resorts, they must still be consistent with the
overall vision, goals, and policies of the Comprehensive Plan and other applicable regulations. The Planning
Commission finds this development, as currently proposed, is not consistent with the Comprehensive Plan's MPR
designations or with the Brinnon Subarea Plan.
The Comprehensive Plan states:
and
o Maintain and preserve the natural beauty, rural character, and variety of lifestyles that make up the
intrinsic character of this community.. Support a healthy, diversified, and sustainable local and regional economy by recognizing existing local
businesses, making prudent and appropriate infrastructure investments, and encouraging new business
start-ups and recruitment which are compatible with and complementary to the community.o Protect and conserve the local natural resource base, balancing both habitat and economic values.o Reinforce and enhance the historic sense of "place" or "community" around traditional population centers.o Prevent the inappropriate or premature conversion of undeveloped land in favor ofinfill and the
strengthening of local communities.
The Brinnon Subarea PIan states
P1.1 Encourage the proposal of a Master Planned Resort for Black Point to foster economic development in
Brinnon consistent with the vision illustrated in this Subarea Plan.
P1.2 Ensure that the project review procedures and public involvement processes in place for designation of
an MPR at Black Point are implemented in a manner that results in a project that meets the need for local
economic development while protecting the natural environment and rural character of surrounding
properties.
P1.3 The Black Point MPR project review and approval process should reflect the diversity of interests and
potential property owners who may be included in such an overall project at Black Point.
From: Jefferson County Comprehensive Plan 3-16 Revised by ORD#O1-0105-09
6
"The economic reasons for siting of a master planned resort, however, must also be carefully balanced against
the potential for significant adverse environmental effects from such a development. Any proposal must be
carefully planned and regulated to prevent any type of sprawl development outside of the master planned
development that would destroy the scenic and often environmentally sensitive setting. The Comprehensive
Plan identifies policies in LNG 24.0 that help guide development of any new MPR designation. The goal and
policies focus on protecting the rural character and natural environment of areas potentially impacted by
development of an MPR, ensuring adequate provision of public facilities and services, and preventing the
spread of low density sprawl."
The Planning Commission recommends to the BOCC careful consideration of the following:
. The feasibility and appropriateness of siting a golf course and mega-resort over a critical aquifer recharge
area;. Keeping all three kettles intact in recognition that they are important cultural sites and significant geological
formations;. A thorough independent review ofthe hydrologic function and relationship between surface water,
groundwater and runoff and the sensitivity of this particular aquifer as both a sole-source (or near sole-source)
aquifer for the residents of Black Point and the significant aquifer recharge area, potential for contamination
by pollutants in runoff or any other contributions to the aquifer from treated sources;. The planning commission's finding that the proposed 890 housing units was three times the density of Port
Townsend, some of us believe a density of no more than 300 units could be more appropriate to the site,
pending technical review;. Building height allowances to be consistent with existing Jefferson County Code;. The need for a detailed stormwater management plan that demonstrates how all stormwater runoff generated
onsite will be treated and infiltrated onsite.. Proposed mitigation for stormwater pollution impacts generated off-site and related to increased traffic on
Hwy 101 and arterial roads that is caused by the development.. Address the elimination of contaminants before they enter runoff and groundwater, while utilizing a
comprehensive monitoring and feedback plan as an important last line of defense.. A clear and defensible plan for what happens iflwhen monitoring reveals problems. (e.g. can the site be shut
down or scaled back, etc.);. Coordination/consultation withaffectedtribes;. Meet or exceed 30 BOCC conditions;. Feasibility of doing off-site treatment of black/gray water as well as runoff in place of the planned rapid
injection system approach, which could result in inadequately treated stormwater/blackwater entering and
polluting a finite, sensitive aquifer that discharges to adjacent shellfish beds as well as salmon/steelhead
habitat in adjacent river estuaries.. Local hires and contracts prioritized (in the MPR Washington Style guide as well as one of 30 BOCC
conditions) with a clear process of prioritizing, fostering, and maintaining local business relationships and
labor pools;. Working with the existing geography, land contours and natural beauty, minimize land disturbance, and
design in accordance with other principles and policies of the Jefferson County Comprehensive Plan.
Despite the PC's agreement on many revisions, some of us do not believe that the regulations we put forth to you
in our majority recommendations go far enough and do not represent a clear and appropriate succession of events
leading up to the PC review of the proposed regulations. In the interest of completing the technical process
agreed upon in the April 1Sth government to government meeting between Jefferson County and the Port Gamble
S'Klallam Tribe between PGST, the developer, and county staff, and in the interest of making sure what happens
next is as clearly sequenced and defensible as possible, we put forward the following:
We advise that a moratorium on development approval at the Black Point/Pleasant Harbor MPR site be put
into place until clear regulations be adopted pursuant to, and consistent with, RCW 36.70a.360 Master
Planned Resorts and our own CP LNP 24.12.
We advise that the proposed development regulations currently under consideration be withdrawn, new MPR
tiered policy/code be created and adopted that specifies how new MPRs are to be proposed and reviewed.
Following that, we further propose that specific regulations for the Black Point/Pleasant Harbor MPR be
proposed, reviewed and adopted in full consultation with tribal governments who have treaty rights as a
result of the Point No Point treaty of 1855.
7
a
a
a
a
a
We find that it would not be within the best interests of the county to adopt the proposed unclear regulations
at this time. We believe the regulations should undergo a further refinement and review, which is beyond the
scope of this Planning Commission, the timeline given the planning commission, and the current resource
constraints of the DCD. We recommend an outside consultant, chosen by the county and paid for by the
developer, further review the MPR regulations to address all environmental and regulatory concerns.
In the absence of these steps, we feel that the draft regulations put forward herein are premature.
We find that the process and distinct steps for adopting an MPR is extraordinarily complex and needs to be
clarified in in our Jefferson County Comprehensive Plan and Jefferson County Code for the future so that all
parties - staff, applicant, and the public - can anticipate and follow the process. Similarly, Comprehensive Plan
policies and guidelines for golf courses should be reviewed and updated and the question of where, how, and/or if
new golfcourses should be allowed should be addressed.
Despite all of the aforementioned concerns, we do believe that an appropriately planned and scaled low-impact
development MPR at Black Point, designed to maximize preservation of existing natural features and cultural
resources, and affording ample public access, could offer an extraordinary opportunity to create a recreational
development with unique features and qualities, one that highlights and enhances the natural beauty and character
of Brinnon and the Pleasant Harbor MPR site for the enjoyment of all and the full environmental health of this
pristine location. As one planning commissioner quipped, "This could be and should be the cleanest resort in the
worldl" The citizens of Jefferson County and the State of Washington deserve that.
Sincerely,
Cynthia Koan, Chair
Jefferson County Planning Commission
cc: Philip Morley, Patty Charnas, Planning Commission Desk
Letter approved at716/2016 PC public meeting:
In Favor:
Cynthia Koan, Chair (District l)
Lorna Smith, Co-chair (District 2)
Mark Jochems (District 2)
Tom Giske (District 3)Abstaining:
Mike Nilssen (District 3)
Opposed:
Absent:
Gary Felder (District 1)
Matt Sircely (District 2)
Richard Hull (District 3)
Kevin Coker (District 1)
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Brinnon MPR Opposition Group
Brinnon Group
bri nnongrouo@gmail.com
June 29, 2015
Jefferson County Plan ning Commissioners,
Attached is correspondence from Grol Morris, an attorney, with a number of concerns and suggestions
about the draft MPR regulations you have been considering. Ms. Morris has been hired by the
Association of Washington Cities Risk Management Services Agency (AWC RMSA) to review municipal
codes and has also been hired by AWC RMSA and a number of cities to draft model development codes
for adoption. The Brinnon MPR Opposition Group and the Brinnon Group share the concerns in Ms.
Morris correspondence and would urge you to consider them.
We would like to point out that there do not seem to be general regulations "to guide the review and
designation of master planned resorts" which are required by RCW and by the Jefferson County
Comprehensive Plan.
ln addition, talks have not been completed with either the Port Gamble S'Klallam Tribe or any other
Tribe who may concur with the issues brought by the Tribe.
Thank you,
fr^tr*tl4ru4r*J"
Barbara Moore-Lewis
Secretaryfireasurer
Morris Law eC.
Jvne27,2016
Jefferson County Commissioners
Phil Johnson
David Sullivan
Kathleen Kler
1820 Jefferson Street
Port Townsend, WA 98368
Development Regulations and Development Agreement for Pleasant Harbor
Master Planned Resort
Dear Board of County Commissioners:
I am an attorney representing a number of property owners aggrieved by the planned
Pleasant Harbor Master Planned 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 sntitled to review and recommendation by the Planning Commission, and
ultimately a decision by the County 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
o'development regulations are general uniform regulations that should apply to any
subsequent development that may occur within the MPR, regardless of the development's
specifrcs.o' 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 o'project permit application," excluding amendments to comprehensive plans and
development regulations (RCW 36.708.020(a)). 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 owner's application for a
permit," but this does not apply to the County's adoption of an ordinance amending its
development regulations. RCW 64.40.020,.010(6). See also, RCW 4.24.470, which
provides that a "member of the governing 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
Phone: 253-851-5090 Faxl 360-850-I099 Email: carol@carolmorrislaw,com Web; www.carolmorrislaw,com
Re:
Letter to Jefferson County Commissioners
June 27,2016
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 app;roval
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 tansportation 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 commitment 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 concrrrency ordinance which
specifically required the County to prohibit development approval under the
circumstances identified above. There is also a reference to concurrency 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 transportation
concrurency. Here is a more detailed explanation of what must be included in the
County' s concrurency ordinance:
Each planning jurisdiction should produce a regulation or series of
regulations which govern the operation of that jurisdiction's concrrrency
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
Jwrc27,2016
Page 3
WAC 365-196-840(5). If the County doesn't have a concurrency ordinance that
complies with the requirements of the Growth Management Act for tansportation
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 concrurency 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 concrrrency ordinance. This means that the develcipment with
the most significant traffic impacts in the area will be exempt from one of GMA's
mandatory requirements.
A draft of the development agreement that has been circulating shows that the developer
desires that the County agree to vest the proposed project under the applicable
development regulations for twenty years. A twenty year waiver under a transportation
concurrency ordinance that should have been in effect in the 1990's would certainly be a
benefit to the developer and detrimental to the public.
Attached to this letter is a draft of a concurrency ordinance which covers transportation,
sewer and water. Please feel free to modify it for your purposes.
State Environmental Policy Act (SEPA). [t 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 Cotrnty 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 or abbreviated
versions of the SEPA Rules - and thire doesnit 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 Titles 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 modify it for your purposes.
Letter to Jefferson County Commissioners
June27,2016
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." In Section
18.15.115, it states that "Master Planned Resort is a land use designation established
under the Comprehensive PIan" and that provisions for the Pleasant Harbor MPR ooare
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 example, 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 17.65.020(6), waste water treatment facilities are permitted uses
in the Pleasant Harbor Master Planned Resort District, but this is not an "allowed use"
within a master planned resort classification, according to Section 18.15.123.
In Section 18.15.123(9), the County may allow "any other similar uses deemed by the
administrator to be consistent with the purpose and intent of this section, the
Cornprehensive Plan policies regarding master planned resorts, and RCW 36.70A.360.*
This is very confusing. While 18.15.123(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 Zonrng designations. Does this mean that aregional waste water
treatnent plant can be permitted outright in the Pleasant Harbor Master Planned Resort
through the'adminiskative 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 o'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
Jvne2l,2016
Page 5
follow the procedures in chapter 36.708 RCUD. In addition, there are deadlines for
processing project permit applications (RCW 36.708.080), ard 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 developrhent agreement. In Section
17.80.030, the developer must submit a "Resort Plan applicationo 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(1)(h), there is a requirement that the "concumency requirements of
the Comprehensive Plan will be met." The County is actually required to adopt a
concwrency ordinance pursuant to RCW 36.70A.070(6Xb) 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. [f 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
staternent (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
Jvrc27,2016
Page 6
Let's assume that the County approves a MPR in the Pleasant Harbor Master Planned
Resort Residential Recreation and Commercial Zone, for a development that includes a
regional waste water treatnent plant, Because there is no requirement that the developer
submit a SEPA checklist in order obtain this approval, the environmental impacts will
only be analyzed by the County after approval. at the time the County reviews the
building permit for the waste water treatment 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 I 97-1 1 -060(5Xd).
18.15.126(2). Here, the County has required that a development agreement accompany a
Master Planned Resort, in order to "set for the development standards applicable to the
development of a specific master planned resort." The description of these "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 36.708.210.
'oA development agreement shall be consistent with applicable development regulations
adopted by a local government planning under 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 agreement."
The County should consider amending its development regulations relating to
development agreements. Development agreements are contracts, and like all contracts,
consideration is required. There is nothing that requires the County to allow a developer
to vest development standards for twenty years, 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 17.80.030, 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 instances?) and how it may be appealed.
Letter to Jefferson County Commissioners
Jvne 27,2016
Page 7
17.60.030 Purpose and Intent. This section states that the purpose and intent of the
Pleasant Harbor MPR code is to "set forth 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 36.704 RCW] . . . and shall be
consistent with and implement the comprehensive plan." However, this is required for
aII 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.r
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 "permitted outright" in the zone (in the list of uses set forth
in Section 17.65.020), then the Director must determine whether it is "similar" to these
other uses. [n addition, the Director must consider whether the use is "consistent with the
purpose of the zone and the MPR." Ifthe 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 o'similar'o 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
difficul! if the County has adopted it as a subarea of the comprehensive plan, and the regulations proposed
in this chapter are actually consistent with the comprehensive plan. However, tle County's purposeful
omission of such expr€ss language indicates an intent to allow all types of uses of properly, as shown in
Section 17,65.020, regardless of the compatibility of the use with surrounding uses or the environment.2 AIso, 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
Jlurl,e27,20L6
Page 8
Section 18.50.1 10(l)(c), which imposes a penalty of $100 per day, per violation - this is
extremely 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'ocomply with and [be] consistent with the Jefferson County
Comprehensive Plan for future development within the boundaries of the Pleasant Harbor
Marina and Golf Resort Master Planned Resort." However, I couid not find anything in
the 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 arca.
For example, in the Brinnon Subarea Plan, page 46,the following appeani: "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." (Emphasis added.)
Section 17.6.030 is inconsistent with the Subarea Plan because practically every possible
use of land is "permitted 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
outright in this zone range from the most sensitive (single family residential) to extremely
intense (waste water treatment plants).
Few of these permitted uses are defined in chapter 18.10. This is extremely problematic
because a determination that 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 permitted uses to guide the Director's
use of discretion, the result can be arbitrary enforcement of the code. For example,
"medical services" are a permitted use in this zone - would that include a hospital? This
list does not appear to have been compiled using traditional zoning considerations, which
would place compatible uses in the same zoning classification. Single family homes can
be constructed right next to a waste water treatnent 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
June27,2016
Page9
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 of the comprehensive plan. Every possible use of land is
allowed in Section 17.65.020, so it would be extremely 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 "uses allowed," 'odiscretionary
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 in the 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 district. When a use is not specifically listed in Table
3-1 (or, if proposed within the Irondale and Port Hadock UGA, in chapter
18.18 JCC), it shall be reviewed as discretionary oD' use by the
administrator, using a type II process specified in Chapter 18.40 JCC. The
administrator shali 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'ouse table" to determine if this is true
throughout the code). If the uses are not defined, then we question how the administrator
makes a decision whether a particular use is subsumed within a particular undefined term.
Without definitions, the administrator's decision is Furthermoreo state law requires that
the County's code establish the procedure for processing a project permit (RCW
Letter to Jefferson County Commissioners
June27,2016
Page 10
36.708.060). The County is specifically prohibited from "making up" the procedure 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 uitical 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 procedures in that
ordinance for public notice and appeal. For example, in Section 17.70.010(c)(4), there is
a description of the manner in which wetlands may be "filled."
The County should instead be requiringthat 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 determine whether it meets the code requirernents. 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 from 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: "identifr 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
June 27,2016
Page ll
protection, greenbelt retention and maintenance and establishment of permanent
protective easements for these resources as well as the other specific requirements of
Jefferson County Ordinance 01-018-08, 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 references 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 willbe? If this is a process that
will be accomplished adminishatively, 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 o'over-water buildings " but they oomust 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?" ln 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 County's Shoreline Master
Program - wouldn't an over water building violate such setbacls?
17.80.010 Resort Development. This chapter 17.80 is extrernely confusing. Section
17.80.010 states that this chapter "sots out an environmental review process 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 l8.l5X Is it a comprehensive plan
amendment? Why is there a separate environmental review process - why doesn't the
application follow the same SEPA Rules as all other development?
Letter to Jefferson County Commissioners
Jvrrc27,2016
Page t2
Under Section 17.60.040, the County 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
_?_ residential units and a cap of 56,608 square feet of resort commercial, retail,
restaurant and conferenco space, not including intemal open space. Does this mean that
there is no "cap" on the amount of space devoted to waste water treatment plants,
hospitals, police stations, etc.? What is "intemal open space?" What is the "cap" based
on?
17.80.030 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 reference 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 elernents 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 rnust 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
Jwrc27,2016
Page 13
17.80.040(5). This section is inconsistent with law and must be eliminated. It states thato'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 'ocompletion 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 andlor the MPR (Section 18.15.120(1)(i).
17.80.050 Environmental Review for Resort Plan Development. In subsection (1),
there is reference to 'oall project level applications." What are these? Applications for
Binding Site Plans? Building permits?
Section 17.80.050(1) provides: "A1l 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 oopresumptions" applicable to threshold determinations. (This is the danger
in failing to adopt a SEPA ordinance and instead attempting to integrate the County's
summary interpretations of SEPA into its code.)
With regard to the use of existing documents, the Coturty is required to follow WAC 197-
11-600, not someone's interpretation of this SEPA Rule in Section 17.80.050(1).
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 permit
application submittal is too late in the process and "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
Jvrre27,2016
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 performed, especially
if the County intends to fust sign a developrnent agreement that vests the developer to the
development regulations for the next 20 yearc?
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 boundary or zone changes. within the MPR." In
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 procedure
(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 County. 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
reouired to consider whether the application is consistent with the Growth Management
Act (chapter 36.704 RCW) before approving a comprehensive plan amendment.
(Consistency with GMA has been omitted from Section 17.80.030(3).
Letter to Jefferson County Commissioners
June 27,2016
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 anything through a minor revision - which is a Type I[ 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 pormit in
its development regulations (RCW 36.708.080). Thir section 17.80.070 does not address
this statutory requirement, yet one criterion for a minor revision is that it must not'lhave
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 Asreement. Section 18.40.830(5) is inconsistent with law fi.CW
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 this
subject.
CONCLUSION
Here is a sunmary of our comments and objections to the adoption of the new
development regulations :
l. The County has not complied with the Growth Management Act by adopting a
transportation concurency ordinance as required by RCW 36.70A.070(6)(b). The
County's reference to maintenance of the levels of servioe 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), are contrary to law.
Letter to Jefferson County Commissioners
Jwrc27,2076
Page 16
3. The County's development regulations are unintelligible with regard to the type(s)
of approval required for the Pleasanl Harbor resort, the elements of a complete
application, the decision-makers on the application, the criteria for approval, the appeal
procedrues, 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 actioh (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 confuses everyone, could impose liability on the
County in situations where it has none, and forces the public to hire attorneys 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 further detail on
my comments, please let me know. Thank you for the opportunity to comment on your
development regulations.
Letter to Jefferson County Commissioners
Jvre27,2016
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