HomeMy WebLinkAbout0506zr Shetidan St.
Poft Tolvnsend WA 98368
Jefferson County Planning Commission
MEETINGMINUTES
Tri-Area Community Center
February 2L,2or9
P:36oi79-445o
Ft 560,379-4451
plancommlalc6 jefferson.wa.us
Please note, these minutes are intended to provide a summary of meeting decisions and except for motions made, should not be
relied upon for specific statements from individuals at the meeting. If the reader would like to hear specific discussion, they
should visit fefferson County's website at: https://wa-ieffersoncounty.civicplus.com/580/Planning-Commission and listen to
the audio file (to assist in locating information, time stamps are provided along the left side of the page).
Call to Order at 5:30 pm
ROLI CALI
District 1
Coker: Present
Koant Present
Vacant:
District 2
fochems; Present
Sircely: Excused
Smith: Present
District 3
Hull: Excused
Nilssen: Excused
Giske: Present
Staff Present
Patty Charnas, DCD Director
Nicole Allen, DCD Office Coordinator
Facilitator:
Approval ofAgenda:
Anproval of Minutes:
Public in Attendance:
Cynthia Koan
Agenda approved (0:01:18)
Minutes for February 7,2078 approved.
15
COMMISSIONER ANNOUNCEMENTS
0203:47 - Jochems Announced that county farmers plan to hold a meeting on Thursday, March 1 from 6-8
pm at the Chimacum Grange regarding the Comp Plan.
0:04:50 - Coker Announced that the Port Townsend Home Show will occur Saturday, March 3 from 9-5
pm at BIue Heron Middle School.
DIRECTOR UPDATES
0:07:76 - Charnas Gave updates about: consultant helping with the Comp Plan; Planning Manager
recruitment; Planning Commission vacancies, and 2018 meeting dates. A Planning
Commission vacancy is open in District 1 and terms are expiring for existing planning
commissioners in Districts 2 & 3. It was recommended that expiring Planning
Commissioners indicate their interest in being reappointed in a letter soon.
PUBLIC COMMENT (first opportunity)
0:15:55 - 0:20:50 The Chair opened the floor to public comment on topics not related to the agenda
items. Comments provided during the noted timeframe included those on creating a
no shooting zone around Tarboo Lake.
DISCUSSION
0:53:57 - Giske A discussion on the Pleasant Harbor MPR occurred. Topics included the preparation of
a Planning Commission comment letter on the development agreement; on the timing
of development regulation adoption relative to the agreement; on tribal treaty rights
and affected tribes; on Hood Canal shellfish resources; and on environmental impact
statements. Giske read into the record a proposed letter to be addressed to the Board
of County Commissioners. Planning Commission members discussed the different
points.
Jefferson County Planning Commission
MEETINGMINUTES
Tri-Area Community Center
February zt, zot8
P:86o379-445U.
F:36o-579-445t
o.iefferson.wa.us
MOTIONS
0:1.3:34
0:53:2 L
Motion to approve proposed Planning Commission meeting dates for 2018. Moved:
TG; Seconded: LS. Yay: 5; Nay: 0; Abstained: 0. Motion carried.
Motion to enter into discussion in this meeting and future meetings regarding
Pleasant Harbor Master Planned Resort. Moved: TG; Seconded: Mf. Yay: 4; Nay: l-;
Abstained: 0. Motion carried.
PUBLIC COMMENT (second opportunity)
L:4L:40 - 2:05:24 The Chair opened the floor to public comment on topics related to the agenda.
Comments provided during the noted timeframe included those on the Pleasant
Harbor Master Planned Resort (PH MPR); concern regarding setbacks on farmland
and a brief report on an analysis of the county. Comments on the PH MPR included
concerns about increased traffic, increased marinas, the age ofthe EISs, construction
phase completion dates, proposed density, water quality, the onsite kettles, the
proposed golf course, Hood Canal habitat and the length of time it takes for people in
Brinnon to travel to public meetings at the courthouse, 0ne person clarified water
treatment, water quality, marina management, and density for the PH MPR.
FOLLOW.UP ITEMS
2:06:48 - Koan The Planning Commission will continue to discuss Pleasant Harbor MPR Development
Agreement at the 03/07/1,8 meeting.
Next Planning Commission meeting is scheduled for 03/07 /78 at 5:30 pm at the Tri-Area Community Center.
Adjourned at7:37 pm
These meeting minutes were approved this dayof ,2018.
Cynthia Koan, Chair Nicole Allen, PC Secretary/DCD Office Coordinator
6zr Sheridan St.
Port Townsend WA 98368
To
Date:March -?OLB
Board of County Commissioners
f efferson County Courthouse
Port Townsend, Washington
From: fefferson County Planning Commission
Subject: Pleasant Harbor Marina and Golf Master Planned Resort
Whereas, there are significant aspects of this development noted herein, as curently planned and
the subject of DRAFT Agreement dated December 14, 2017 between f eflferson County and the
developer, that are not congruent with the Vision Statement [attached) we have spent the last year
defining as our lodestar for updating the f efferson County Comprehensive Plan;
Whereas, our understanding of the environment and it's unique characteristics at the Pleasant
Harbor site has deepened during the 10 years that have passed since this development was first
envisioned, and as a result, some doubts prevail that mitigation plans will protect the delicate
ecology ofthe area;
Whereas, the construction and maintenance of a golf course, including Iarge uses of water, can
threaten the ecological balance of the aquifer and its associated pristine Hood Canal shoreline;
Whereas, the size and scope intended for this development endangers both natural and
commercial sheltfish beds, with the potential contamination of natural nutrients in the aquifer;
Whereas, the development plan for this site will destroy the rare and ancient natural formation of
kettles unique to our landscape, which is in direct violation of the County's current Comprehensive
Plan that commits policies of the County to "preserve unique geological features";
Whereas, the financial viability of a golfing resort in this remote area needs to be questioned, given
that most golf courses in the Pacific Northwest are facing fiscal difficulties due to fall-off in usage,
and interest in golf as a recreational activity is declining among the younger generations, the
possibility of a future bankrupt operation and its resulting depression on the local community is of
concern;
Whereas, while we understand the County is not obligated to request such, no business plan that
demonstrates the financial viability of this resort has been shared with the County,leaving
questions about the economic benefits the developer is quick to promote;
Whereas, the primary publicly stated justification for not accepting the reduced scope and
landscape preservation actually proposed in good faith by the developer is based solely on the
requirement that previously completed impact statements (FSEIS, for example) would have to be
amended;
Whereas, the local population where this development will be built remains divided on the long-
term value or harm it will bring to their community:
fi,",
We, the appointed county board responsible for reviewing and recommending changes to the BOCC
for such development agreements, after onsite exploration, significant public input, and countless
hours of discussion, respectfully ask that the following changes be made to the Development
Agreement:
Ct- qThat, Kettles B and C be retained in their natural condition, whether listed in the National
Register of Historic Places, or not
CK 2) Thag the financial results and business plans for each phase be reviewed and substantiated by
an independent consultant, reputable in the field ofgolfresort finance, before each phase is
approved for construction.
3) That, water runoff is monitored and maintained compliant throughout the life span of the
development, with appropriate testing done at least semiannually and the results shared with the
local shellfish industry.
4) That, consideration be given to obtaining waste water treatment via the existing facility now
serving the State at Dosewallips State Park, or that waste treatment be completed on the other side
of the highway,via Rapid Injection Techniques, well away from the Shoreline.
5) That, the County agrees to accept the Developer's previous offer for the reduced scope and
preservation of the kettles, and seek the State's agreement to wave the rework of any previously
completed impact statements and/or permit requirements, on the basis that the reduced scope will
not Iikely cause concerns beyond those addressed during reviews of the existing plan with the
larger scope.
Respectfu lly submitted,
\-1
\,
n In Favor E Against
! In Favor D Against
E In Favor E Against
E In Favor ! Against
E In Favor E Against
E In Favor E Against
D In Favor flAgainst
E In Favor E Against
Cynthia Koan, Chair
Matt Sircely, Vice Chair
Smith, Lorna
Mark fochems
Tom Giske
Richard Hull
Michael Nilsen
VJG , v-z-
Kevin Coker N
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A2? A/o B 14
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Robert Mitchell
4246 Duckabush Rd
Brinnon, Wa.
Planning Commisioners
DCD
Development Regu lations Meeting O2l 211 78
Thank you for your hard work.
ln the original EIS the proposed Build Out Period was 4-7 years. ln the FEIS and
Supplementary FEIS it grew to 10-15 years at the Developer's request. Now DCD
has changed this to 25 years or 5 years after the completion of all phases.
Because here is NO Deadline for the completion of any phases the county is giving
the developer a Perpetua! Agreement.
The Eis's are all horribly outdated. The Traffic Study in particular. This binds the
county to these out dated studies. This does not allow for future changes in code
that may arise as new ecological impacts and any other threat to the health and
safety of our citizens are realized.
This is all to the advantage of the Developer and does not protect the citizens.
Not only have we citizens been subjected to a process that has dragged on for 15
years because of the Developer's actions but will subject the surrounding areas
and citizens to undo hardship, loss of quality of life and utility of our properties,
for as long as the Developer wants.
What about our rights?
Pleatant Hartor Master Planncd Resort
Posted on: February 6, 2018
Brinnon . Pleasant Harbor Master Planned Resoil (MPR) Public
Hearing Scheduled
The Jefferson Coun$ Board of Commissionars will hold a public hearing for the
purposes of taking testimony on the proposed Pleasant Harbor Master Planned
Resort (MPR) development agreement and proposed zoning regulations on
Monday, April 9, 2018 at 6:00pm in the Jefferson County Superior Courtroom,
1820 Jefferson Street, Port Townsend. The public can view the complete text of
the proposed Ordinance for the Pleasant Harbor Master Planned Resort
Development Agreement, and of the proposed Ordinance amending Title 17 and
Title 18 to adopt zoning and other development regulations along with
background information on the Pleasant Harbor MPR at
http://www.cojeflerson.wa.uslT2TlPleasant-Harbor-Master-Planned-Resort.
Written public comments will be accepted any time up through the close of the
public hearing, addressed to BoCC at P.O. Box 1220, Port Townsend, WA 98368
or by email at jefibocc@cojefferson.wa.us.
CDs of all review documents will be created as requested for a charge of $1.10.
Requests should be directed to dcd@co.iefferson.wa.us
Additional lnfo...
€ Prevlour
Publlc Commenls Reoardino
Pleasant Harbor MPR Viewable
Online
Other News ln Pleasant Harbor Master Planned Resort
Public Comments Regardino Pleasant Harbor tt/lPR Mewable Onllne
Posted on; February 9, 2018
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Re:
January 16,2018
Mr. Phillip Hunsucker
Chief Civil tbputy Prosecuting Attomey
Jelferson County
P.O. Box 1220
Port Townsend, WA 98368
Draft Development Agreement between Jefferson County
and Pleasant Harbor Marina and Golf Resort, LLP
Dear Mr. Hunsucket:
Thank you for making the draft Development Agreernent available to the public for
review. Here are ourcomments on this document:
f'ourth "Whereas": Herc, it is stated that the Legislature adopted the development
agreement process in RCW 36.708.170-.210'to shengthen the land rse planning process
and reduce the costs ofdevelopment. . ."
This development agreement appears to have been drafted for the purpose of providing a
substantial benefit to the developer in the form of vested rights 1o any uumber of
development regrrla(ons, comprehensive plan policies, and codes relating to management
and operation of various facilities, There is nothing in the agreement which describes the
consideration provided to the public in exchange.
The authorizing statute (RCW 36.708.170(l)) provides that: "A development agreement
shall be consistem with applicable development regulations adopted by a local
government planning under chapter 36.70A RCW." The administrative regulations
adopted in order to implement the development agrcement prccess (WAC 365-196-
8a5(1|(aXii)) provides that: "Development agreements do not provide a means of
waiving or amending development regulations that would otherwise apply to the
prop€rty." We can't determine whether this agreement is a proper exercise of police
power, given that the development regulations that will govern this development haven't
cven been adopted.
Seventh "Whettas": Here, it is stated thal: "This Agreement constitutes a final land use
action pursuant to RCW 36.70C.020." If this is meaut to indicate that an appeal of this
Agreement could only be filed under chapter 36.70C RCW, this is false.
Under RCW 36.708.200, "if the development Egreement relates to a projoct pemit
applicatiorl t}re provisions of chapter 36.7rc, RCW shall apply to the appeal ofthe
Mr. Phillip Hunsucker
January 16,2018
Page2
decision on the development agrcement." There is no project permit application at this
point in time, so it can't be appealed under chapter 36.70C RCW.
It is our understanding that the County is attempting to establish the development
regulations that will apply to the dweloper's submission of project p€nnit applications in
this agreement. Therefore, this agreement is an exercise of legislative authority - and the
County should be asserting that this is tnre, because the County is immune from liability
for its legislative actions. RCW 4.24.470; Bogon v. Scott Harrls, 523 U.S. 44, 54,ll8
S.Ct. 966, 149 L.Ed.2d 79 (1998). Therefore, the County doesn't need to bend over
backwards in an attempt to provide the developer any concession desired by the
developer for this project.
An appeal of this development agreement could be filed with the Growth Management
tlearings Board (if it werc alleged that the agreement was inconsistent with GMA) or
with the court under a constitutional writ of certiorari . See, Leavitt v. Jefferson County,
74 Wash. App.668,686,875 P.2d 681 (1994); RCW 7.16.360; RCW 36.70C.020(2).
Chapter 36.70C RCW is "the exclusive means ofjudicial review of land use decisions
...' The definition of "land use decision" in RCW 36.70C.020(2) is: "a final
determination by a local jurisdiction's body or offrcer with the highest level of authority
to make the determination, including those with authority to hear appeals on: (a) an
application for a project permit or other goverrurrental approval required by law before
real property may be improved, modified, ..."
This particular development agreement is not a "project permit or other governmental
approval required by law before real property may be modificd. The County plans to
adopt it in conjunction with the new dcvelopmcnt regulations for the Pleasant Harbor
Master Planned Resort in the sarne manner as the adoption or an amendment to the
comprehensive plan/dwelopment rcgulations (see, Section 17.60.040).1 Therefore, it will
be adopted under the County Commissioners' legislative authority, which means it is not
appealable rmder chapter 36.70C RCW. See, Cofey v. Ctty of Walla Walla, 145 Wash.
App. 435, 440-441, I 87 P.3d 272 (2008).
Section 2.2. Term: Section 2.3. Build-Out Period. The Agreement will end 5 years after
the build-out period. The build-out period is 25 years or 5 years after the completion of
I This draft Devclopmcnt Agrecment rcfers to an Appendix that should hsve includcd the ncw Tanng
Mr. Phillip Hunsucker
January 16,2018
Page 3
all phases described in
the completion of any
agreement.
pection
bhase,
10, whichever is later. Because there is no deadline for
the County would efl'ectively be approving a perpetual
'fhe County has no authority to enter into contracts with developers for the purpose of
indefinitely freezing development regulations. "The established nrle is that municipal
corporations have no power to make contracts which will conEol them in the
performance of their legislative powers and duties," l0 McQuillin, Mun. Corp, Sec.
29.07 (3'd ed). One legislative power that cannot be contracrcd away is the exercise of
zoning powers. 1d., 2 Andcrson, American Law af Taning (3d ed), Sec. 9.21 (1986), 4
Yokley, Tnning Law and Practice, Sec. 2&31 (4e ed 1979\. Agreemenls to prctect land
llom all future rezoning are void as *illegal contract zoning" because such agreements
bargain away the local government's policc powers. Ratl*opfi, 2,'fhe l^aw atbning and
Planning,Sec. 294.03 at 29 A-33, 34.
Although there are no cases in Washington in which a court has addressed thc validity of
a development ag,reement of indefinitc duration, 0re Washington courts have held that an
inrcrpraation of the vested rights doctrine that would "frwze land use regulations
forever" would be an "absurd result." Alltonce Inv. Group of Ellensburg, LLC v. City of
Ellensburg, 189 Wash. App. 763, 771, 358 P.3d 1727 (2015\. Courts in other
jurisdictions have also fiound such agrcements invalid:
[^and use regulations, including the power to zone, involve the exercise of
the sovcreign's police power. A govemment'may not contract away its
right to cxcrcise the police power in the future.' Moreover, contracts
purporling to do so are invalid and unenforccable as contrary to public
policy.
Delucchi v. County of Santa Crw, 179 Cal.App.3d 814, 823-4, 225 Cal.Rptr 43 (1986).
.fre olso, Mayor and Council of Rochville v Rlyns Enterprises, 1nc.,372 Md" 514, 814
A.2d 469 (2002) (municipality could not bargain away its zoning powers by signing a
contract indefinitely binding the municipality); Ballech v. Charles County Maryland, 166
F.Supp.2d 443, 453 (Md. App. 2001); City of Ftmers Branch v. Ilawnco, Inc., 435
S.W.zd 288 (Tex. App. 1968)i Geralnes B.V. v. City of Greempood, Colorado, 583
F.Supp. 830, 841 (Colo. App. 1984).
We understand that Section 7.2 pmvides that *this Agrecment reserves the County's
authority to impose new or differcnt regulations to the extent rcquired by a serious threat
to public hcalth and safety." Howevcr, this is not the equivalent to an actual expiration
Mr. Phillip Hunsucker
January 16,2017
Page 4
AIso, we would assume that the developer would appeal the County's attempt to impose
any new development regulations on its proposcd development that wcrc not strictly
adoped for the purpose of addressing this health and saf*y problern.
The developer obtains a substantial bcne|rt from a development agrement which vests
the development regulations for Pleasant Harbor for an unlimited period of years. The
consideration received by the County for this agreement is not apparent from the
language of the agr€ement (if it exists at all). However, it is clear that this agreement,
which vests the developer to the development regulations in place today (whatever they
may bc, we still don't know) will certainly not benefit the public. As stated by the
Washinglon courts:
Dwclopment interests and due process rights protected by the vested
rights doctrine come at a cost to the public interest. The practical effect of
recognizing a vested right is to sanction the creation of a new
nonconforming use. A proposed development which does not conform to
newly adopted laws is, by definitiorL inimical to the public interest
ernbodied in thosc laws. If a vested right is too easily granted, the public
interest is subverted.
Erlclqon & Associates, Irrc. v. Mcletan, 123 Wash.2d 864, 874,872 P.2d 1090 (1994).
Section 2.5. Exhibits and Appendiccs: Section 3.2. Master Plan Components. the
development regulations that are supposed to govem the development of the property,
and which vest when this development agreement is approved, are referenced as an
Appendix. This Appendix is blank. My request for a copy of these development
rcgulations was met by a link which provides two versions of a draft of the development
regulations (the Planning Commission's recommendation and the Staffrecommendation).
It is difficult to provide any infomred comments on these documents. Apparently, the
County has chosen to adopt procedures that will keep the public in the dark about what
development regulations will govem the development of Pleasant Harbor until the day of
adoption/approval.
Section 4.1.1. Protection of Fishinq Rishts: Section 8.2. Impacts of Pleasant Harhorju
Nearby Natural Resources: Section 8.3. Storqlwater Standards. Here, it appears that the
parties will agree that the developer will develop the property during ttre indefinite term
according to the County's Stonnwater Management rquirements as they cunently exist
(because they apparently will be attached as Appendix B). This means that the County
will allnw the dcveloner to vest tn the existins stormwater derrelonment reoulntions.
Mr. Phillip Hrrnsuckef
January 16,2018
Page 5
The Washington Supreme Court has held that the "lrgislature did not intend vesting to
prcclude enforccment of federal and shne environmentsl laws," and that "state actions
pertaining to stormwater were intended to be exempt from the v$ting stiatutes."
Snohomish County v. Pollution Control Hearings Board 187 Wash.2d 346, 365d6, 386
P.3d 1064 (2010.
Given that the Washington Supreme Court has held that the vested rights doctrine does
not apply to stormwater rogulations, the question is why the County would allow the
developer to vest to stormwatcr regulations through a devclopment agreement. It is
important that the Department of Ecology be contacted for its position on the language of
this Agreement.
In liections 4.1.1. and 6.2, the developcr agress to "operate" the Pleasant Harbor MPR in
accord with a Watcr Quality Monitoring Plan which we assume has been drafted to be
consistent with the existing development regulations. Apparently, the developcr plans to
claim not only that its development is vcsted to certain regulations, but also its
"operations" are vestod. The authority for this position is unknown, and again, the
Department of Ecology needs to be contacted for its opinion on this issue.
Section 8.1. Permined Uses. Agarru there is a reference to Appendix A, which is
supposed to include developmcnt regulations that haven't been adopted. There isn't even
a single version of a draft of thesc developmcnt regulations for the public to provide
comment.
Section 8,2. Planning Goals and Objestives. Here, the dcvelopcr claims that this
agreement vests thc development to "the planning goals adopted by the County in the
Comprchensive Plan as of the date of recording this Agreement." This is inconsistent
with law:
Unless amcnded or terminated, a development agreement is enforceable
during its term by a party to the agreement. A development agrwment
and the development standards in the agreemcnt govern during the term of
the agreement or for all or that part of the build-out specified in the
agrecmentt and many not be subjcct to an amendment to a zoning
ordinance or developmcnt standard or regulation or a new zoning
ordinance or development standard or regulation adopted a{ler thc
effective date of the agreemeirt.
Mr. Phillip Hunzucker
January 16,2018
Page 6
RCW 36.708.180.2 The comprehensive plan is not a zoning ordinance, nor is it a
development standard/regulation or an amendment to either. Review the definition of
"development regulation" in RCW 36.704'.030(7). Also, look at RCW 36.708.170(3) for
a list of the types of things that may be included in a development agreement. Nothing
allows the inclwion of planning goals and policy guidance to bc vest through a
development agreement because they are legislative activities. The County is precluded
by the Washington Constitution from delegating its legislative authority to freeze
policies and goals in its Comprehe,nsive Plan on specific properties through a contract
(especially one with indefinite duration).
Section 8.3.2. Stormwater Manjrnement in Public Roads. Here, the County is requircd to
manage stormwater runoff on all public roads, rights-of-way and easements within the
Pleasant Harbor MPR, sppar€ntly under all applicable regulations. However, the
developer's responsibility for the management of stomrwater within the Pleasant Harbor
MPR during the next 100 years (or the duration of this Agroement) is vested to some
ordinance that was adopted prior to 201E.
First, it is highly unusual that the County would sign a contract agreeing to manage
stormwater to a particular standard on private property in a contract.3 Second, this
language includes the County's express agreement to allow the developer to manage
stormwater within the MPR" to the regulations in place at the time this Agreement was
approved. So, if there is a flooding event within the MPR, and the County and developer
are sued for darnages to private property, the developer will simply claim that it has no
liability, given that it isn't required to manage the stonnwater to applicable standards --
this is the responsibility of the County. Again, this issue nee.ds to be brought to the
attention of the Departnent of Ecology. It also looks like an cqual prot€ction issue, as it
is unlikely that the County allows other property own€rs the same advantage.
Next, let's imagine ttrd the developer constructs a phase of the MPR twenty years from
now, but constnrcts the roads under the stormwater rcgulations in place at the time this
Agrecment is approved. lVould the County accept a road that doesn't comply with the
applicable development regulations? I don't know any municipality that would take this
step. If the road didn't comply with thc ap,plicable dcvelopment rcgulations, wouldn't the
County have to use public funds to improve the road to the existing development
rcgulations? This is an unconstitutional gift ofpublic finrds.
Mr. Phillip Hunzucker
January 16,2018
PageT
Nothing in the development agreement statutes allows the County to enter into a
development agreement for the pupose of granting a developer an exemption from the
development regulations relating to 'lnanagemenf'of stormwater in a development.
Section 8.4,, Critical Area Standards. Here, the County has agreed to allow the developer
to vest to some version of the County's critical areas ordinance. See my comments
above.
Section 8.5. Land Division Standards. Here, the County has agreed to allow the
developer to vest to its pennit procedures as they exist in some ordinance. The
Washinglon courts have detennined that procedures are not subject to the vested rights
doctine, ard there is no need to include procedwes here. Gralam Neighborhood v. F.G.
Associates, 162 Wash. App. 98, 116,252 P.3d 898 (2011). However, as the years pass,
the fact that the procedures adopted in this Agreernent are outdated will certainly be a
benefit to the developer. The attachments are not recorded against the property, so the
public will have no idca what procedures govern the proccssing of the pennits and
approvals. This will make it especially hard for the public to find the appropriate version
of the old code in order to file any appeals.
Section 8.9. W-ater $eryice. Hetr, the developer has agreed to comply with "ttre most
current approved specifications and requirements as determined by the Washington State
Department of Health" for the water main extensions and potable water system
improvcments. Doesn't the County have any public works standards for such facilities?
Why is the developer allowed to follow the CWSP as it exists, if this Agroement is of
indefinite duation? Is there no possibility that the CWSP will change in years to come?
Has this becn reviewed by the Departnrent of Health to determine whether it is subject to
vesting in an agreemrent?
Section 9.1. County Processing and Review. See comments on Section 8.5 above.
Procedures are not subject to the vested rights doctine, so there is no reason to include
them here, other than to intentionally disadvantage the public. Has the County also
agr€€d to grve the developer the benefit of the permit application fees in effect at thE time
this Agreement is executed for the next 100 years?
Section 9,3. Vestins. Here, the County and developcr attsmpt to create the fiction that
developer is only vested in this Agreement to development regulations - which isn't true.
The developer confirms that the County can't adopt any new or differcnt development
regulations during the indefinite and rurlimitod build-out period.
Mr. Phillip Hrursucker
January 16,2018
Page 8
Just to be sure that the developer gets the full bcnefit and supremc advantages not
afforded to anyone in the County (or anyvhere olso), the dovolopor has added Soction
9.3.3, which provides that if thc developer forgot to add some facet of ths dcvelopment
that isn't vested to any subject, element or condition in this Agreement, then it is vested
anyway. ) So, no one actually knows what the development is vested to - given that the
dcveloper and the County have interpret€d RCW 36.708.170 through .210 to include not
only devclopment standards, but also the oporation and management of arery bit of this
MPR. This is an illusory condition and is unenforceable.
Note that the developer has included the prohibition on the County's adoption of any new
dcvelopment regulations except to address a serious threat to the public health and safcty
at least four tirnes. It is clear that the dcveloper intends to onforce it if the County
attempts to do so.
In Scction 9.3.4, the language is contary to other parts of the Agreement. Here, the
devcloper is required to comply with statc or fbderal laws or regulations of any kin{
including stormwatcr. The other contrary portions of the Agreement which allow the
developer to vest to stormwater and otlrer police power regulations needs to be
eliminated.
Thankyouforthcop,portunitytocommcntonthedraftDevelopme,rtAgreement OnccI
am able to review thc various vcrsions of the draft MPR developnrent regulations, I may
have additional commcnts.
yolrN,
C
Carol A. Monis
co: Client
Monis Law P.c.
MEMORANDUM
DAIT:
TO:
Febnrary 9,20181
Phillip Hunsucker, Civil Prosecutor, Jefferson County
Carol Monis, Mortis Law, P.C.
Drrft development rcgulationc - Pleasant Harbor Mrster Planncd Resort
Versionupdatcd lArclfi
FROM:
RE:
The County's websitc provides notioe of an upcoming public hearing on the draft development
agreerneirt for Pleasant Harbor. Howwer, nothing in tlds notice provides any information about
the purposo of this public hearing. Docs the County plan to approve the devclopment
agreomcnt? What is the proposed action?
Thc County nccds to curefirlly consider the timrqg ofthe adoption ofthe devrlopme,nt
regrrlations and appr,oval of the development agreemeirt. Doveloprnut agreements are
authorizod under RCW 36J0B..170 - 210. RCW 36.708.170(l) provides tbrt "a development
agreement shall be consistant with the applicable devolopment regulations adopted by a local
governmentplnnning under [the Growt[ Muragement Act]." Jefforson County plans undcr
Gil,lA.
It is impossible to detennine wh€thff or not the developrnont agreemeot is consistsrt with thc
applicable dcvelopmcnt regulationq if they haven't boen adoptod. The County doesn't explain
whether it plans to adopt the developnrent agroe,tnent first or concurront with the proposed
devolo,pment regulations. To make matters worte, the County doesn't even havd one version of
thc dwelopment regulations fot thc public to rpview. There arc two different versions (one
proposd by staffand mothcrp,roposed by tk Plaruring Commission).
The County's distibution of two different versions of developnent regulations to the public, as
well as a dwolopment agremcnt which purports to includc the development regulations in a
blank cxhibit violacs duc process and fiurdmental faimess. Glaspey & Sons, Inc. v. Cowad, 83
I I pnparod ancther momo dated Fsbnrary 7,2018. This momo supersedes that ealier memo, Sorry for 0re
inconvonioncs
3304 Rosodah Stroot N.W., Suitc 200, Gig Hartor, WA 9E335
Phone253-851.5090 Frx:360.85&1099 Emollcanol@cmolmonislaw.com
MEMO2-8-18
Wn.2d 707 ,712, 521 P2t ll73 (1974). Providing a 60 day commclrt period docsn't solve ttis
problert.
Hcre are my commcuts on the l2ll0ll7 draft of the developneut regulations prepared by the
County staff:
17.60.020: "The rcgulations in this title shail be knoum as thc Pleasant Harbor Mast€r Planned
Resort Code, ...'i The "title" is Title 17, rrvhich inohdes more thgnthe Pleasant Harbor Master
Planned Resort Codg it also irrcludcs the Port Ludlow MPR. It appears that the County has
dividd up the Title iuto Articles, so if Port Ludlow MPR is Atticle I, thsn it should be ststod
hcrc that the Plessant Harbor regulations in ohapters 17.60,17.65,17.70,17.75,17.80 and 17.85
arp in Article II of this Title.
17.60.0ii0: The fsrmer langrrage stst€d that the pupose of this chapter was to sct forth
developmentregulationsthatcomplywithandarcconsist€ntrrriththeCorrplehc,nsivcPlan. The
language has ben changcd in a way that makcs no serulc: "Thc purposc . . . is to regulate lard
development usesthat comply with ard are consistcnt withthe Jeffemon County Comprehensive
Plan for futurc dwelopment . . ." So, docs this mean that these regulmions only apply to those
'tses'r that ale oonsistent with the Comp Plan? It doesn't ryply and can't be enfotcod wlrcre tlrc
'\tse" is incomistent?
17.50.0411: Hcrc, it statcs tlnt thc lvlastcr Plan frr Plcasant Harbor mnsiss of (t) rcgulations
(the ones in this chafrer?); (2) the conditions and requirernents of Ordinaoce 0l-0128-08; (3)
Final Eaviromemal Itnpact Statements (how rnany arc thcre? There is no identifying
information lrerc, like thc dates ofthc BIS's orufratthey cover); (a) Firul Supplerncntal Impast
Statenrent (again, there is no idcrtifying information, no datos); (5) mnps (ufiich maps?); (5)
mitigation measul€s (in whd? Thc unideotified EIS's and FSIS?); and the Developrnent
fureement. Thisrnaguelanguagedoesnotprovidesuffici€,ntinformationforthepublicto
underctand nhat applies to this dwelopmemt -- and it is too vague for the County to e,nforce
againstthe dcvcloper.
trn Sestion 17.60.060, tlrre is another list ofth€ oodes, regulations, etc. thEt apply to the Pleasant
Harbor MPR. This list is more detailed and includes additional rcguldions. Why ae these two
sections (17.60.040 and .060) diffcrcot?
17.CI.1150: The provisions of this title apply to all "land use actions urd siting of infrastucture
..." Thetp are no dcfinitims in thc County's oode for *land use actions" and "siting of
infrashrcturc." A definition is nccded so that thcre is no confirsion in the futurc about
applicability. The publio shouldn't hlve to guess about the situations that will tigger
eirforcemcnt ofcertain codcs basod on mbiguous laguage.
2
MEMO2-8-18
17.60.060: Hee, the County std€s tbat "any land distrrbing activit/'must comply with other
titles of the Code, and variou other docuure,trts. If thc,re is some rcasrcn to distinguish between
the undefined !'lard uso actions" in 17.60.050 and the "land disturbing activiy'in 17.60.060,
why isn't the refercnce to Title 18 of the Jefferson County Code included in 17.60.050? My
point is that the developer must comply with chryter 18.35 JCC, Iand Divisions, to dividc the
progrty prior to any sale, lease or transfer of any parcel or lort Division of land is not a "land
distubing activity." (See, I 8. 10.120.)
Althotrgh Title I 8 is mentioned here, the procedure in chapter I 8. l5 JCC doesn't couteinplaie
aoy zubdivisions, short plats, orbinding site plans in a MPR. (Ihe Ptaoning Commission's draft
mentioned a bffing site plan, but this appears to have been removed in the staffyersion of the
development rcgulations.)
It is statod thd: '\rhere conflists occur betnreen the provisions of this title and other applicable
codc provisions or othcr rcgulations, the more restictivc shall apply." Are the docume,uts listed
in I through 4 covered by this? They are not all codcs or rogulations.
17.60.060: Why were the ore,nrptions dclsted? If they werc deleted because "it is confusing and
pot+ntially difficult to intorpret " (staIf oomment on rnatix), I have the same ourcsrn with 050
and 060 above, unless tlre activities thd this "title" fiiggers are defined.
17.60.070: Whcre did the 890 rcsidential unit cap come frrom? I\dore terrrs are ued here, and .
they need to be defned so that this can be enforced. What is a "short term visitor
accommodation unit? Is that the same as a "short-tenn rcntal?'There are no definitions of these
Erms.and they will be difficult to enforre.
17.60Im rnd 17-60.090: Herc, ttre Coruty is establishing new regulations for legally
nonconforming usos and stnrcfiues. Given that the C,ounty has already adopted regulations for
nonconforming uses and stnrcfirrcs in Scction 18.20.260, ard incorporded Title 18 into this
chapter or Article, the County is creating confusion abotfr ufiich ryply and how ionflictirrg
langrugemustbeint€rpreted. tlastheCountyinsertedtheseregulatiorubecauseonly*land
dishlrbing activities" (in 17.60.060) have to comply with Section 15.20.260?
17.60.11D: Why ae "ittllctures" orernpt?
17.65.010: The'lurpose' section in a partiorlar zoning disEict is supposod to orplain the
ptttpose of the distict. For orample, in a residontial disfrict, it might be: "This R-l zoning
district is intended to aacommodde apattcm of land use that is prcdominatcly single.family."
The pupose section is needed for each zoning disEict bocaue the development rcgulations
c+nnot list every single type of use that may be propccd in ftc futurc. WhED a propcrty oumer
ploposos a particular use that is not listed in the developmcart regulations as either a lerurittd"
"conditional" or "prohibited" use in that distict, the Planning Dircctor is required to issue an
administrative interpretation of the code and make a decision whether the proposed use is
3
MEMO2-8-18
compatib-le with the EIDASE of tlrc district and the other uses allowed in the distict. If the
County doesn't desoibe tho pupose of the distict, then only the pcrmitted uscs providc thc basis
for the adrdnisrative interpretation.
This problem is exacerbated here, because the tlpes of uses'lermittod (there arc no
"conditional" or'frohibited" uses,) are widely different in nature. As a result it is possible that
tho Planning Staffmuld allow any twe of use not listed as pennined. For exmrple, the land usc
impacr of a tavern arc totally different from a more sensitivc use like a single family homc, yet
they are permitted outight in the same zone.
17.50.020(5)3 Here, 'lublic facilities" arc permittod o$right (there are no conditional uses
list€d, which would allow the decision-maker to address needed mitigation in a zone that also
allows sensitive residential uses). The County has procedures for conditional use pcrmits in Title
18, so thc question is why all rxeq cven the most intense, are permitred outight in the same zone
as single farnily uses.
The definition of 'lublic frilities'in JCC 18.10.160 d€monstrates thd no onc has spert atry
fims thinking about whcthpr or not thesc uses are compatible with oach other or the other
allowed uses in this zone. ([he dcfinition includcs: "facilities scrrring the genoral prhlic, stnccts,
roads, ferries, sidewalks, stleet aod road ligbting systoms, hrffc signals, community water
systems, community rcwage Ecahcnt systems, storm water systems, park and recredional
facilitics, libraries, fire aad police stations, emergcrcy modical serviccs, municiptrl ard.county
buildings, power houses, cenreteries and public schools." In othcr words, thc dwclopcr could
build single fatnily homes immediatcly adjacent to a community sowage treatm€,nt aystem. Or, a
county jait (county building) could be built right nod to a public school.
lt Nlemi, et ol. v. Nortlwest Cascade, et al., Pieroe County Superior Court Cartse No. l6-2-
11216-7 (currently pcnding), a clase action suit was brought by own€nl of single family hosres
surrounding a Flollarryks facilrty which collects and teats sewage from honey buckets. Evcn
thongh thc Crty of Pacific imposed nunemur conditions on the Flotlarryks facility thrcugh a
conditional usc permit it is allegod to have rsleas€d odors, gases and fumcs wtrich substantialty
interfere with tho property own€trs' cnjoyment of their propertics. The nsighbors are suing,
a[eging nuisancc, negligc,occ and hespass as a result of the activities of this fEcility, which is
locaed in close proximity to single family uses. This lawsuit was filed even after installation of
upgndes to the odor suppressing oquipmcnt.
In (O, the County has allowed, as usles pe,turittod outri&q *other similar uscs consistent with the
pr{poso of this zone and MPR as deterrrined bythe Deparment of Co'nrmunity Development."
Again, 17.65.010, which is supposcd to desqib€ the'lurposc" of this zore, does not incltrde any
ourlpso statement. It only dcsctib€s the uses that ao allowed in the zono, and thoso uses are
orte,nsive and varied. The Cormty doesn't won requiro that the most intcns€ uses obtain a
4
MEMO 2.E.I8
conditional use permit, so ttrat the impacts of the use can be mitigated on a site-specific, ad hoc
basis.
If the County allorrys every possible use of property otlrerthan heavy industial inthis zone, what
does the Comrrunity Developmeut Oeeartmeot need to do wheo the davelopcr propoccs m
intense use not listed lul.17.67.020? Nothing other than to nrbber stamp an approval. We
question whytlrcre arc no conditional uscs intheMPRzoning disfiicts, whenttre County
aotually impleme,na a conditional use permit process in other areas of the County.
17.55.030: Herg the Couty is allowing the developer to build a building of any height, as long
as the developer bup a ladder tnrok or other equipment for the Fire Distist. A variance isn't
orren required, so the adjacent poperty ownet will have no notice of the developer's rcceipt of a
brrilding pormit to construct a sulrshrE that will drrarf others in the neighborhood- The fact that
the Fire DisUict may nced additional cquipment to put out afire in a building ovcr aceilain
height is not the only negative land use impact resulting fiom excessive height, especially
adjacentto qi{rde family use$
17.65.040: So that there is no question that no cmsideratiqr whatsoever was give,n to the
persons who would evemtually visit, live and work in this zone, all yard and setbrcks have been
sliminated. We assume that this has becn addod in order to eliminate any restiitioms on the
developer's ability to maximize its investncnt.
17.70.010: Here, there actually is apurpose section It also staEs: "Thc dirnensions ofthe
MPR-0SR zone do not p,recludc applicable bufrers and setbacls as requfuod under this title or
rmder Title 18 Jefferson County Code.' However, in Section l?.75.M0, it states that "lhene arc
no yard or setback provisions intcrnal to the MPR-lvf\f zone," but'hew stnrofitcs located \ilithin
the shoreline sball comply with the setback require,nrents of the" SMP. Does this mean tbat there
are setbacks for new constrtrction in this zone or not?
17.75.010: The purpose of the MPR-VM zone is agairr, not stated. lnsead, thcre is a suDqmtry
of thc tlpes of uses allowed, totally eliminating any me,ntion of the fast tlnt there are few
diffctences in the uses permitted in this zone and the MPR-GR zonc.
17.75.0202 Agar& my conoenr is that all listed useg are psrnrittCId outrigh in the MPR-lvfV zone.
There are two pmhibitod uses, but the Countlhas not classifiod any uEe as a "conditional use."
A corditional use is not a permitted use. It is listed in the zone as I ule that may be made witbin
azfina,but only upon the grant of a oonditional use permit by the Hearing Exanriner or other
deoision-maker (after a hearing). The reason c€rtain urcs arc penuitted only upon the grant of a
conditional use permit is bccause there are certain uses thd msy be desirable but are not
oomplstely coruistsnt with the penoitted uses. Thcrefore, the zoning code requires tbat the
decision-malcer evduate the proposed developme,nt under certain criteda for approval, which
allows the decision-makff to consider the fasts relating to the property and the proposed ue.
5
MBMO2.8.IE
For ocample, schools rc not nonnally allowed in a single family residential zone as apermitted
use. They may be anou,ed with a conditiorul uee permit, uihich would consid€r whether the
piece of property for the school is Luge cnoug[r to absofi all of thc land rue impacts relating to a
school, $rch as noisp, parking and taffic circulation.
It is difficuft to understand why the County would allow a maina as a permitted use, oot a
conditional use, in this zone. While it does apper that the dwelopo would have to obtain a
shor,elino permit for tho marina, it is difficult to say rvhe.thcr the slrorelinc permit would address
the impacts of a marina tbat would normally be addressed rmder zoning regulations.
The words "ovetwater gtucturcg" have bccn climinded here (17.75.020(l)). However, in
17.75.020(4), therc is e referenco to hovr "overwater buildings" shall b€ constructd" Does fiis
mean that "ovcruratetr strustmEs" or "ovenildqf buildings" can or can't be constnrcted in this
znne?
Again, 17.75.02A00) allows uses of wery type and dcscription, many of wtrich arc not
oompatible with each other or the rwidmtial uses allowed outight rn17.75.020Q).
Saure comment with regprd to 17.75.020(12). There is no purposc section, only a surunary of
thc usos allowed in this zone. Thersfore, any type of use can be allowed, as long as the
Deprtment of Community Development approves. There alp no criteria for DCD to usc in zuch
apprcvals.
Wlrat is the proceduce for the Corm$ to make the decision whethcr or not a rrse is allowed in a
partianluzoningdistrict? Ioouldnotfmdmy formadminietrdivecode
intcrprardion. State law requirce that the City adop this procedure: "As patt of its project
reviewpmcesq alocal govcroment shall provide a procedurc for obtaining a oodc interpretation
as pr,ovidod in RCW 36.708.110." RCW 36.708.030(3). If thc County doesn't have this
proccdurc (as rcquirpd by state law), thsr thc public will have no notice or oppoitunity to apply a
drcision of the Direc'tor to allow an unlisted usc within one of these MPR zones; Thc dwoloper
could propoec au outdoor shooting range that will cause renreodous noise aod pollutc thc grouod
waterwith lcaq and the Couty may permit it, claiming that it is consistfft with Section
I 7.65.020(4), Blr En'outdoor rcsort-rplatcd rcueational facility."
17.75.030: h 17.65.030, no buildinge could bc constsrrctcd in thc MPR-GR zone over 35 foct in
height unless the Firc Distict approvod" Heren *ono structure rnay anceod 35 fe€t, but may not
otceed 45 fe€t." No approvd is requircd from ths Fire District to qcceed 35 fcct in hoigbt. So, it
eqpeaffi th* the limit in the pmrious zore wa,s not based on atry safety issue (like the fact that the
Firc Digtrict didn't have a laddcr such that firefighters could fight a firc.h a building ovcr 35 feet
higlt) ud was totally a6itrary. Also, whd does it m€an tlrat *one strusturc" cm ercceod 35 feet
in hcigttt? One shrctwo intho entirc zone?
6
MBMO2{-18
17.t0.010: Here, the County has established the process for'teviewing major or minor rwisions
to &e Resort Platr." Woul&r't the dweloper also need to obtain approval of a mqior or minor
revision to any subdivision or binding site plan approval for any of thcsc activitibs?
17.t0.020: It appears thst this section has bc€n dded so that evcryone can iust see a sampling of
the mitigation rrcasures that apply to lhe proposed dcvelopruent. (The mitigation measutqt are
list€d but it also state tht they are not limited to these measurEs, yet these moasures are listed
'for refercrce.') Given tlrat thc Cormty has determined that it will impose mitigdion or
conditions oq the developruent from d lcast four difterent doctrments, is therc sonro rcason that
the County can't simply list all of them herg so that everyone knows what they arg? It would
also be helpful to look d them in one place, so that we could dctermine whether any measur€s
oonflict with each other orthiS proposed code.
Also, rhis list of docrurerrts is not the ssrne as the list of docum@ts in 17.60.040 and 17.60.060.
What is trc rpason for the diffsrence?
17.t0.020(l): Here, the developer is required to put thc soutlrenn shorcline abuttiug Hood Canal
into a peiuranent conscryation easoment. Who will be the ownpr of the undotying propcrty?
Who will be responsiblefor mainaining this eascmcnt?
17.W,020(2)(e): Tho County should charge the dcveloper for tbc County's costs relating to the
hiring of an indepeirdent consultmt who wilt perform water quality monitoring and to submit a
sunnary water quality report to the Cormty.,
17.m.020(2xd): Here, it sttes thd the p€ffitits *shall requiro implementation of appropriate
mitig*ion mcasures to alleviate ary wrtcr quality issues caused by the Pleasant llarbor MPP"
Frrst, has anyone dgne any testing of thc currcnt situation? If nog won't the doveloper argue
l8tcr, ifthe unater quality dsteriomlcs, that it was not resporsible, and fre County can't prove
othprwisc? Second, why would the County only State that tho peruritr rcquiro implementrdon
of apprtprleto mffiatlon neerunes? The permits will issue and theo the developer will be
required to do somc water quality testing. Thorp isn't much to this testing program, other than it
has to be done monthly. Ifthe dcvelopment agroernent is signed and the permits issuo, how will
trc Couty rcquire additional mitigation?
Thc dwelopment agreerrent hss be€n craftod such that the doveloper is not only vested to every
development regulation administercd by the Cormf, but also includes a paragraph that covsrs
.any develop'mem regulation that the developer forgot to include. It is difficuft to uderstand wtry
thc County wouldn't adopt a wat€r quality staodard, and their use its enfotrement procedures if
the dwelopnent doqsn't mest the standard"
The public receives little if aoy benefit from this development, Bvqr all of the many
concessions provided to the devcloper. Therefore, public frmds shouldu't be spetrt on the
e,nforcement ofthe developnent agree,ment. The County sbould requirethatthe developerpay
7
MEMO2-8-r8
the Coqnty's costs associated with hiring an independent consultant to do this water qtlatity
monitoring. There is no other way for the public to know that the watsr testing is accurate.
17.E0.020(3): As I pointed out in my commcnts onthe development agreemeut, ploperty owners
can't vest to storm water drainage regulations, regardless of the language of that agreement.
Herc, it states that the developer will only be required to capture and trcd the storm water to the
"most current edition of the Stormwater Manual of Westem Washingtod'before discharge.
Does this mean that the County acknowledges that the developer is not vested to stormwatcr
regulations?
17.80.020(3)O) end (d): So the Couuty states that there shall be no discharge of sewage or
bilgc wdcrs at the marina, and that fish cleaning can't take place in the controlled access areas of
the rnarina There doesn't appear to be any program tbat the developer is required to adopt to
enforce this. These are issues that will be difficult for the County to e,nforce with limited time
and rcsources.
Ia 3(n): What does it rnean that "the mrina operations shall coflest water quality data from
State souxces so long as available . . .' The County should be clrarging the developer for the
County's costs relating to hiring an indopendeirt consultant to perfomr this rrratsr quality testing.
Thesc conditions ale drafted so that thc developr can claim thd it isn't requircd to mmply --
and instead, it is thc lmarina operatot''ufio hasu't complicd with the oonditions. It is impoftant
to identi$ the entity/individual that the Cormty will bring its enforcement action against if thesc
conditions are not mot.
U.E0.020(4)(b): Again, "tlre golf courc and resort facilities will be required to participate in
any adaptive management prograffil required by the County, as a result of the water quality
monitoring progranr . . ." h[ore details are needed, such as the eirtity/individual trat must
perform this condition should be identified. The developmeot agteerneirt has addcd language
that prohibits the public from enforcing the terms md conditions of development approval, so the
public's hands are tied if the Couoty does nothing
l?,S0.020(4)(Q: The location(s) for water quatrty testing to take place should bi idcntifiea so
that it cao be determined whether or not the devcloper is complying with the prohibition on any
storm water discharge into Hood Canal.
17.E0.020(O: We qucstion why the developer would comply with this condition, requiring
calculation of greemhouse gffFs, if all it was required to do is "identifi techniques to mitigate
such emissions." Clearly, there is no need to identify any techniqucs if there is no requiremeirt to
actually implunent thmr.
17.80.020(5): This section is not cnforccsble. Thc Cormty can't enforcc a requirernent that the
developer "*t'ive" to do anything.
I
MBMO2-r-18
f7.SO020(6n The consetvation easeurent is gfanted to Jeffemon C.ounty, and fhe Couuty is
required to "preve,lrt any activiry within tlre Basement Area that is inconsistent with the prrrPosc
of this Easennent and to require restordion of the Easemelrt Arca damaged by activity or usc that
is inconsist€ril with the purpose of this Easement." In other words, the County is rcquired to
spend prblic ftnds to monitor this easmrcnt urd address any damage to it. ApparentlY, this is
the oJV consideration obtained bythe Coun$ inexclrangeforthe MPRaud its ionceosionsto
the developer in the derrelopment agreeiltcnt.
1?.80.030: Didtlre enviroouremal documents address the impacts assosiaEd with 890
residential units? Is ttrere something in these docume,lrts wtrich requirc not less thsn 65 petcent
of the total urits bc "shorttetm visitor accommodation units?"
Wbat is thc County's enforcement plan for dct€minhg wtrether or not the developer has short
term visitor accommodation that coirstitutos less than 65 peroent of tho total units? It will likely
be difficult for the County to monitor all sales and renhls to determine whether or not this
condition is sdisfied:
17.80.060: What is the duration of the MPR? We already know that the Cowrty doesn't plan to
impose any deadlines on the constnrction of any phasg md so the developmcnt qgrcem€nt could
be in place for 100 years or more (whatever is 5 years longer thm tho completion of all phases).
Undcr 17.80.070(l)(r), the Ptanning Staffcan even grant extensions to the nondoadlines for
"timing of approved derrelopment"
17.E0.070: The proe,edure for the adoption of dorreloprnent rcgulations and a ddvelopment
agrement associated with the adoption of derrelopment reguldions is legislative. not quasi-
jrdicial. Take a look at 18.15.129.
Here, thc County plans to adopt a quasi-judicial grocedure to anrc,ud legislative developmont
regulations. This is like establishing aprocodure for thc adoption of dwelopment regulations
that is legislative (and folloun all procedtrres for tho adoption of dcvelopment regulations in a
GIvIA County), but allowing the planning staffor hearing oraminer to modifr the sarne
development regulations ttnough au administative, quasi-judicial process.
17.t0.080: Again, the Courty provides a qrusi-judicial procedure that will purportedly amend
legislatively adopbd dcvclopmcnt regulations. Apparemly, thc County recognizes thia problem
in (2), urd states that if the proposcd mqior revision involves a change to the boundries of ttre
MPR zmo, a comprehensive plan ameirdment is also required, and it is proccssod as a lcgislative
actim. This doesn't cure th€ fast that other rwisions (-ajor and minor) are still described as a
quasi-j udioial procedure.
It is difficult to und€,rstand how theso procedures mesh with the dcvelopment agreement which
requires tlnt "the Board of County Commissioners must approve all amerdments to this
Agreement by ordinance or rpsolution and only after notice to the public and a publiohearing."
9
MBMO2-8-18
17.t5.010: Here, it gtatcs that a MPR approvcd with a phasing Plm shall be null and void if the
appttcanttaltstomeetUcconcttotrslnthcapprovedphasingplaa Apparen0y,the devcloper
9an take 50 years to conshust aphase, butthc MPR is onlynull md void if tbe developer fails to
most some ofter condition of the aprcved phasing plan. This needs to be eliminatod so tlrat it is
not interpr,eted a$ somc cxclusive basis for enforceinelrt. The County can revokp the IvIPR for
othcr reasons
1&15.129: Here is the procedure for approval of aMPR. If the County waffs to mtablish
critcria for amem&rent (rnqior or minor), this oriteriashould be in chapter 18.15. Othernisc, it
sppears that the Coung is establishing different criterio for rnojor and minot amendments only
forthe PleasantHarborMPR in clapt€r 17.85.
Why are the criteria for a rnajor amendrnent of the Pl€asant Harbor MPR in 17.80.080(lXa)
throughOditrerentfromthecriteriafortheoriginalMPRapprovalin 18.15.135? Thedangoin
cstablishing different criteria for a major amendment is that the developer mry propose a
smaller, less intense development initially, and then onc€ approved, use the less bhinge,nt criteria
for a major amendment to obtain massive changes to the original MPR-
The proocdure for approval for a rnnjor revision should not be different from the original
apprCIval of a MPR. In 17.80.080, the Planning Commission has bcen eliminated from the
legislative proc€ss. In 18.15.132, the Planning Commission holds a public hearing and makes
rpcommendations. If the activity is legislative, therc is no deadline for a final decision (as would
otherwise be required by RCW 36.708.080), so it appears that the reason the Planning
Commission has been rernoved from thc process is to reducc public awarenoss of changes
prcposod within the Pleasant }larbor MPR
Thank you for allowing me to comneirt on the Staffversion of the developmert regulations.
cc: Clicnt
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