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HomeMy WebLinkAbout199Michelle Farfan From: Sent: To: Cc: Subject: Attachments: JT Cooke <JT@houlihan-law.com > Wednesday, November 02,2016 4:18 PM Patty Charnas Garth Mann; Don Coleman (don@pleasantharbormarina.com); Michelle Farfan Brinnon MPR 20L6.1L.2 Cou nty lt r_1 102 2 0 L6 14025200.pdf Ms. Charnas- Please see the attached response to your letters of October 19 and November L,201.6 and our conference all on October 26,20]-6. Please direct any question to my attention. Thank you, JT FU Houf;-rHAN rAuu trOO N" 351h StrdFt " Seattle, Wr\ g8,'t)I JOHN ?. UJ,I COOKE ATTOfiNEY 206"$4?JO7$ nrnrcr ?06"s4?.'tg5$ rAx e53.7?t"82S? Ms#$rs lrww,houllhnn-law,som NOTICE: This communication may contain privileged or other confidential information. lf you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you. 1 N$UI*IHAN $*&\}(/ November 2,2016 VIA U$ MAIL & EMAIL Patty Charnas, Director Jeff'erson County Dept. of Community Development 621 Sheridan Street Port Townsend, WA 98368 Re: Pleasant Harbor MPR Development Regulations Response to Your Letters of October 19, 2016 & November l, 2016 Dear Ms. Charnas Thank you for your letter dated October 19,2016, your participation in the contbrence call we had on October 26,2016 to discuss the same and your follow-up letter dated November 1, 2016. This letter responds to those letters and provides some additional background regarding the Brinnon MPR and our efforts to design a proposal the meets the County's planning goals established in the Brinnon Sub-Area Plan and County Comprehensive Plan as amended by Ordinance No. 01-0128-08, We appreciate the County's offer tbr staff-to-stafTmeetings. Before we entertain a meeting we respectfully request that the County set forth in writing and with specificity exactly what it feels we need to address lbr staff to finalize its rEcommendation to the Board of County Commissioners for the adoption of development regulations that implement County Ordinance No. 0l-0128-08. Specifically, we request that County specify the conditions to Ordinance No. 01-0128-08 that must be satisfied for the County to adopt development regulations, which of those conditions we have not satistied and why. Likewise, we request the County specity the "outstanding tribal issues" it tbels remain, the scientific andlor factual support for those issues and why the current FSEIS does not cdequately address them. Preparation of this infbrmation will allow for more informed discussion during a staff-to-staff meeting. A. The August Booklet Titled *The Pleasant Harbor Marina and ltecreation Community" is Conceptual The development plans you received from Don Coleman are conceptual. As you know, we presented a prel'erred alternative that underwent five years of detailed environmental ':; I -r:.j a 11;i I ,!l i)ll . rr r wwvv. |l+uIlha n - ia\r./.l:*m Page 2 review culminating in the FSEIS the County issucd on December 9, 2015. Mr. Coleman presented the revised proposal in a good faith el'fort to engage the County and more speoifically, the Pon Gamble S'Klallam I'ribe ("PGST") in a meaningful discussion about concerns with the project and what modifications might be entertained to address its concerns. 'Ihe response from the County and PGSI'has been non-committal. B. Modifying the Preferred Alternative to Address Issues that Should Have Been Raised during the SBIS Process Creates Significant Procedural and Fairness Issues That Must be Addressed Before An Alternative Design ean be Considered We maintain that the prefbrred alternative as mitigated respects and protects tribal treaty rights and cultural heritage. For example, the County's own F'SEIS concluded (after five years of study by qualified consultants) that the preferred alternative would not impact fish resources (and thereby tribal fishing rights) and would improve current water quality conditions: Proposed site development is not anticipated to increase pollutants in the harbor, and existing septic tanks, pumps, and drainfields would be replaced with a sewage treatment plant and water system. . . . As a result of the stormvyater manaqement and treatment, lhe net discharge of surface water runofT fiom the Maritime Villaee to the harbor is anticipated to be cleaner than current conditions. ITSHIS at 1-7 (emphasis added). 'Ihe PGST has not presented credible, scientific explanation to the contrary. Likewise, with respect to tribal cultural resources, the preferred alternative preserves one of the three on-site kettles identified by the Skokomish Tribe during the EIS process fbr the comprehensive plan amendment as having possible cultural signiticance. Review of the preferred alternative included a standard discovery plan to tnonitor for and address discovery of cultural artifacts during construction. Notably, the Skokomish Tribe (the only tribe to comment on this issue during the SEPA process) concurred with the adequacy of the plan. The Growth Management Act ("CMA") requires the County adopt development regulations that are consistent with and implement its comprehensive plan. This is a non- discretionary duty and the County is presently out of compliance with GMA mandates. While the County has no basis to continue to delay adoption of development regulations that are consistent with and will implement its comprehensive plan, we will agree to consider reasonable project modifications that are tailored to address scientifically legitimate and Iactually supported concerns conditioned cn the following: L Process and Timinq. ln order entertain further discussion and possible project revisions we rcquire commitment from the County and the PGST (to the extent it chooses to be involved) to proceed on a reasonable schedule with meaningful deadlines tor preparation and review ofany additional reports necessitated by project revisions. The schedule can be flexible to account for consultant delay ri Page 3 and unforeseen circumstzulces, but there must be some agreement that commits the parties to engage in good faith and under reasonable time restraints. Likewise. we request agreement to pursue an altemative dispute resolution process that will be binding on the parties in the event consensus cannot be reached on the necessity ofproject revisions. 2. Cost, Statesman has already paid over 2 million dollars in consultant fees to assist the County with preparation of environmental documents. Most recently, Statesman invested heavily in preparation of the FSEIS that caret'ully analyzed well-publicized alternative MPR development proposals. The County, at the request of the PGST, suggests that we consider and study new alternatives to address issues that could have and should have been raised during the environmental review process, Additional project modifications will likely result in additional consulting costs the scope and extent of which are not known. We do not believe we should be responsible fbr those costs. Either the PGST failed to meaningtully participate during environmental review of this project or the County did not adequately consult with the PGST or consider its comments. In either case, it would be reasonable to request that the PGST and/or the County pay for all future studies necessitated by a revised project. In the spirt of cooperation we request that the costs of all future studies the County determines are needed to address the revised project be split between the applicant and PCS r/County. If these issues can be addressed in a t'air and reasonable manner then we will continue to diligently engage and work with the County and PGST. If not, the Courrty is obligated to adopt development regulations to implement its comprehensive plan and specifically, Ordinance No.0 I -0 1 28-08. C. The Ten-Year Process to Implemcnt the Vision Set Forth in the County's Brinnon Sub-Area PIan a. Jefferson County Sought A Private Developer to Implement a MPR for the Black Point Area The Brinnon Sub-Area Plan ("BSAP" adopted in 2002) identities the Black Point area as '"an appropriate location for a possible furure Master Planned Resort." BSAP (2002) at43. In addition, to justifying the potential MPR designation because of the natural beauty of the area, the BSAP recited the public need for economic growth in the form of tourism to oftset the loss ofjobs and tax revenue with the decline of the timber industry: The decline of jobs related to the timber industry coupled with the ever-increasing demand for tourism and recreation resulted in a strong desire by the residents of the Brinnon area to offset the loss of jobs in the timber industry by J,J{,:1,1 /19,:lt iri1.} r).--i./lj t11$/ ltLrrirr"{ vrwrar.1'roirl Ihan -iaw, *om Page 4 rebuilding the capacity to accommodate recreation and tourism. An expansion of recreational and tourism opportunities and associated commercial facilities in the Ilrinnon area" including a potential Master Planned Resort at Black Point. will help fulfill this objective. The BSAP went further and specifically proposed an l8-hole golf course among other amenities to attract tourists to Jetlbrson County. The BSAP did not formerly designate the area as a MPR, but rather invited a developer to implement this vision by defering actual designation until "a formal, private land use application for a Master Planned Resort, pursuant to the Comprehensive Plan and the UDC" was submitted to the County. /d. b. Statesman Answered the County's Call and Invested Millions of Dollars to Prepare an MPR Design That Implemented the BSAP Vision In or around 2005, the Statesman Group of Clompanies answered the call of the BSAP and submitted an application to designate the areas as an MPR. Consistent with the BSAP, Statesman proposed an l8-hole golf course, 890 residential units and associated recreational and commercial amenities. It kept the scale large enough to serve as a destination resort, but snraller than the Port Ludlow MPR per guidance in the BSAP. The conceptual proposal underwent a two-year environmental review process culnrinating in a DSEIS the received over 400 comments. Notice of the DSEIS and opportunity to comment was sent to local tribes including. but not limited to the PGST. The PGST did not comment on the DSEIS.I The Skokomish Tribe did, however, comment and noted the possible cultural signiticance of kettles on the property. c. The BOCC Unanimously Approved Subject to Conditions and Subsequcnt Litigation On January 28, 2008, the Jefferson County BOCC unanimously approved a comprehensive plan amendment formerly designating256 acres as a master planned resort. To address community concerns raised during the environmental review process the BOCCC imposed 29 conditions that future development would have to comply with. With respect to the kettles, the BOCC addressed the Skokomish I'ribe's concerns by requiring further consultation and "possibly one kettle preserved as a cultural resource." A minority group of citizens that opposed the project appealed the MPR designation. The County and Statesman worked together for over three years defending the designation from : The PGST did comment on the scoping notice. Ted Labbe of the PGST was the only one to provide comment and did not mention impact to the kettles or cultural resource during the scoping notice. J:,ib bd.ri!158 r,r,, Jl:.j.ll? 8Jt; wv,ruq. hnr,rtlhan - law,*orr Page 5 legal challenge. The challenges ended when the Washington Court of Appeals affirmed the propriety of the MPR designation in 2011.? d. The PGST did not Raise Kettle Preser-vation During the Five Years of Environmental Review that Culminated in Publication of an FSEIS After resolution of the appeal, Statesman submitted application for the adoption of development regulations to implement the MPR designation. A six year supplemental environmental review process assessed three possible development alternatives. Pursuant to the BOCC condition directed at addressing the Skokomish Tribe's cultural concerns with the kettles, every alternative assessed preserved one kettle (Kettle C). The remaining kettles were used for storrnwater management. Likewise. a Proposed Archeological Monitoring and Inadvertent Protocol report ("Cultural Resource Plan") was prepared outlining the steps that would be taken to monitor for cultural artifacts and to address discovery of such artifacts throughout the sits, but specitically in areas around the kettles because of the likelihood that cultural artifacts might be discovered in those areas. The County sent the Cultural Resource Plan directly to the PGST in 2A12 for comment. 'Ihe County received no response. The County sought out the assistance of DAHP to help coordinate tribal review of the ptan. DAHP circulated the plan to the PGST and other local tribes. 'l'hree tribes (including the Skokomish which raised the cultural significance of kettles to begin with) concurred with the approach and protective measures. I'he PGST did not comment. Based upon the concurence of tribes that chose to participate (and the lack of any comment from others including the POST) Statesrnan continued to invest heavily in environmental reports and studies assessing the prei'erred alternative. In 2014, the environmental reviews were completed and a notice of issuance of the DSEIS was again sent to the PGST. The PGST responded asking for an opportunity to consult directly with Statesman and the County. That request was immediately entertained and the applicant and the County hosted PCST representatives on-site to hear their concerns. The PGST discussed its concerns over rvater quality and elk migration" but never mentioned the need to preserve all of the kettles because of their cultural significance or the possibility that the kettles might be eligible for tisting on the National Register (issues they now clairn the County did not assess). The Tribe asked if could submit a request to the County to include additional monitoring for water quality and the County and Statesman agreed. That request was never submitted. '['en months after the County and Statesman met with POST representatives the County released the FSEIS, The FSHIS included a fbur-page response addressing the PGST's concerns. On March 15, 2016 after the comment period on the FSEIS closed, the PGST f<rr the first time expressed disagreement with the Cultural Resource Plan and asserted that the County had not consulted with the PGS1 in good faith. The PGST also. fbr the first 1 Brinnon Grp. v. Jefferson County,159 Wn. App.446, 485,245 P.3d 789 {2011) Page 6 time, demanded that the kettles be preserved entirely because they may be eligible for listing on the National Register of l-listoric Places. e. Statesman Efforts to Work with the Tribe in Cood Faith to Address Co[cerns it llaised After Issunnce of the FSEIS have not Been Reeiprocated At the County's request, Statesman agreed to work the PCST to attempt to resolve its concerns. After the government-to-govemment meeting in April 2015, we made repeated overtures to the PGST to visit the site and specifically the kettles, and to anange for technical meetings with the PGST. Those requests were met half-heartedly leaving Statesman to guess at what type of revision might satisff the PGST's concerns. After months of little or no communication, we submitted the conceptual design to the PGST'to assess whether it would meet concems. Notably, under the proposal all kettles would be preservcd. The PCST's response again has been non-committal and instead demands more studies. Meanwhile, the PGST recently completed a 94 unit hotel on its property (the sewage generated by the hotel is treated by a Large On-Site Septic System) and is actively seeking consultants to design a master plan for 400-plus acres of timberland to accommodate a 90- acre business park, commercial recreational center, and an unknown number of residential units. The PGST's Planning Director acknowledges that the purpose of its master plan is to "draw people here and keep them here overnight." The Brinnon MPR and PGST's plans for a recreation center are in direct competition for tourist dollars coming to Jefferson County. D. Conclusion In light of this background you can understand our skepticism that modiffing the preferred alternative to address vague and unsubstantiated impacts or engaging in additional meetings will yield some material progress. We believe we have proposed, studied and designed a project that meets the economic objectives outlined in the BSAP, complies with Ordinance No. 08-0128-08, protects the environment and local community, and respects tribal treaty rights and cultural heritage. We look forward to receiving a written statement that specifies where the County disagrees and the factual and scientific support for that disagreement. Sincerely. -) (-.- O John T. Cooke I Cc: Client (via email) f st}.:* 110 1b arltr,. r J)$ ::,1 i ilL:iJ r:,\,: qvxrw. h {, u I ihan - I avr" uorn