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HomeMy WebLinkAbout079a Eil HouLTHAN LA\Jv, P.c. '/'/1 JOHN T. {J.T.} COOKE A1'IORNEY J T* FtC)tJ L t t{AN. LAW. CO MI00 N, 35 ' Strrct . Seiltile. W,A 38103 April 13,2018 VIA EMAIL (effbocc@coJefferson.waus.) Jefferson County Board of County Commissioners PO Box 1220 Port Townsend, WA 98368 Pleastnt Harbor Mester Planned Resort Proposed Amendments to Titles 17 & 18 of the Jefferron County Code & Development Agreement Dear Honorable Commissioners: We at Pleasant Harbor Marina and Resort LLP ("PHMR") are looking forward in 2018 to continue our partnership with Jefferson County ("County") and the local community by fulfilling the vision for a master planned resort at Black Point. We are encouraged by the amount of support at the public hearing on April 9th, but are also concemed that there are still misconceptions about the project, our plans, and commitment to the Brinnon community and environment. Through this le$er we respond to some of the common misconceptions raised about the project. Before addressing those comments, it is important for the Board to consider the context of the decision before it. The decision before the Board is two-fold: (l) whether the development regulations are consistent with and implement the County Comprehensive Plan; and (2) whether the Development Agreement complies with the Board's conditions, the County Code and state law. 'l'hese decisions do not "approve" construction of the project. PHMR still must secure permits from the County, and state and federal agencies before it can begin construction. The development regulations merely provide a building and development envelope. The Development Agreemenl insures that work performed is consistent with the mitigation measures imposed by the FEIS, FSEIS and Board, the County Code and further insures that adequate infrastructure will be in place allowing construction of units / resofl amenities. Many of the comments received do not address these questions. Rather, they address issues that have already been resolved through prior decisions (i.e. the propriety of the MPR) or comment on the adequacy of the environmental documents and mitigation. Those issues arc not consequential before the Board. As relayed by Philip Morley, the Board has already designated Black Point as an MPR and the comment period for the environmental review closed almost two years ago. Nevertheless, we feel we must respond to many of those comments here. Re: I <c-.rhctrdy ,y ,E $ JcD ! ? , \D' t,l ,t. lr,';'Ifi1i -:-!(Ft I Sent: To: Cc: From: 'tO0 N. ls:i Street r Sesttle, tirA 9t103 JOHN T. (J.T.} COOKE ATTORNEY 2O€.547.1075 ornecr 206.547.1958 FAx 253.72?.8267 MoBrrE ww w.houllhan - lau/, eom NOTICE: This communication may the sender by reply email and Thank you. Eil HouLTHAN LAw JT Cooke Friday, April jeffbocc Patty Charnas; Ph Brinnon MPR 2018.4.13 PHMR -law.com> Subject: Hunsucker; Garth n; Don Coleman County.pdf leged or other confidential information have received it in error,please advise the message and any attachments without copying or disclosing the contents. Attachments: Dear Commissioners: Please see the attached comment letter. Thanks, JT 1 \ \ Page 2 A. The MPR Site is not Pristine Forest Land; It is an Abandoned Campground thet Supported 500 RV Trailers and Connections on Septic Some commenters expressed the view that Black Point is untouched, virgin land and should not be disturbed because doing so will deshoy the uniqueness of the area. As expalined during the County Staffpresentation. the area covered by the MPR was heavily used in the pa* as an RV campground for some 500 trailer connections all on septic. Indeed, it was this high intensity former use that formed part of the basis for designating the area as a possible site for an MPR in the Brinnon Sub-Area Plan. B. The Proposed Density is Below Urbrn Levels end is Necessery to Support lnfrastructure that Protects the Environment Like a WWTP A common theme expressed in opposition is that 890 units is too large. The County Comprehensive PIan designates Black Point as a Master Planned Resort and states that density is not to exceed 890 units. A master planned resort, by definition, rnay allow urban levels of density. RCW 36.70A.360. While there is no bright line rule for urban density, as a'?ule of thumb" urban levels of density are four units/acre or greater. The proposed density of 890 units (including the affordable housing that the Board required we provide) equates to approximately 3.3 units per acre-well below the threshold of urban level density. The proposed density has benefits beyond economic activity. The density supports the mitigation measures voluntarily proposed by PHMR, imposed by the Board through Ordinance 0l-0128-08 and the EISs. The proposed density creates the revenue the funds the proposed wastewater treatment plant, the various monitoring plans. the street improvements, the MOU commitments, the preservation of over 100 acres at the site and the other various components that PHMR has agreed to implement through the Development Agreement. Indeed, all of the mitigation measures imposed by the ElSs and incorporated into the Development Agreement are premised on a project that consists of 890 units. Decreasing the density makes it impractical to invest in those measures designed to minimize project impacts. For instance, it is expected to cost around $15,000,000.00 just to design and construct the Wastewater Treatnent Plant ("WWTp"; that will treat water to Class A standards. PHMR can make that investment because the proposed density provides the revenue to cover the cost to construct and operate the WWTP. If density is reduced the ability to make that investnent is compromised and the result is a development that is less protective to water quality. The proposed density of 890 units already reflects a reduction from approximately 1,100 units. Reducing the density further is inconsistent with the concept of the MPR and will undermine PHMR's ability to invest in the infrastructure and monitoring plans it has agreed to implement as part of the project. 2O6 5d71075 ornecr 2o6 547.1958 erx 253.?72 8267 Mo8,tE www.houtlhcn'IaY.com v ? a /\/ Page 3 [l C. The Development Agreement Includes Adequate Protection to Protection Water Quality and Shelllish Many commentators stated that the MPR will damage water quality and commensurately shellfish resources that rely on clean water. They cited stormwater runoff and sewage as the primary contributors. Those comments do not reflect an undersunding ofthe proposed project, the background PHMR has agreed to abide by. 1. WastewaterTrettment issue, or the conditions that Wastewater generated on-site will be by construction of a plant that treats water to Class A reclaimed water ' lrsnts at 3.16). The plant must be constructed during the first phase. (Dwelopment at Section 8.10, Exhibit 4). This means that no may be occupied until and a WWTP is constructed to adequately treat waste generated by the resort. reclaimed water will be used for irrigation and thereby reducing the use In sum, water taken fromof groundwater and commonsuxat€ly adding to aquifer the site stays on the site. Wastewater generated by the resort will have less of an on water quality than surrounding developments which rely on septic systems to treat Similarly, the proposed resort would have less of an impact than if the property developed with 30, existing residentialsingle family residences with septic fields as is permitted under zoning. (FSEIS at 3.16.-7). Fears that wastewater will damage the quality in Hood L I,'\ Canal are overblown and fail to account for the fact that normal rural potential to be far more detrimental to water quality in Hood Canal. has the the plans to ensure that the WTTP is properly designed so not pollute waters of the state and are consistent with good Comments that even A reclaimed waterwill damagethe baseless and do not reflect regulatory regime treatment facilities Chapter 173-240 Class A reclaimed water standards the strict WWTP construction and operation. regulated by the Department of Ecology the Washington Code (WAC) contains regulatory for the design, operation and of WWTP.to constructing a Pleasant Harbor must sccure permit involves the following: . Submit plans, designs and specifications to WDOE for its approval (WACT l I ));o WDOE effluent practices (WAC 173-240-040) o State imposes a detailed set of requirements for an engineering plan (wAC 73-240-060). The engineering plan is premised around how much 1 To the extent you have questions about Class A reclaimed water and its uses I encourage you to visit the WashingtonstateDepartmentofEcolo8y5webslteonthetopic:@ Shoreli nesAtr/ater-oualitv/Reclai med-water. 2CrG 5471075 ornr.r 2O6.547.1958 ra;: 253772 8267 t"losllE vww. houllhan-taw.com ,{r*n}\ D\ ) Page 4 wastewater the WWTP will Ueat which is why we are unable to prepare the plan. The calculation for the amount of wastewater generated by the resort is dependent the density allowed in the development regulations. o Construction, operation and review of the engineering plan. state law also requires construction plan (WAC 173-240-075), an operation and manual (WAC and mandates that the WWTP be run by 173-240-100). operator certified by the State (WAC a Violating the provisions governing enforcement. (RCW 90.48. 140). is subject to criminal and civil lhe production and use of Class A reclaimed is regulated by the Washington State Departme,nts of Health and Ecology.173-219 (updated in 2018) of the Washington Administrative Code addresses the and use of reclaimed water. Permit-A Permit is required to generate and reclaimed water (WAC 173-219- The permit "must identify terms and determined to be necessary lead agency, for the protection of public the environment, and to this chapter and chapters 90.46, 90 70.118, and 70.1l8B RCW as applicable." WAC 173-219-270 to submit an comply with a In sum. that the use requirements that ensure of A reclaimed water health and the environment. 2, Storm-WaterTreatment Potential storm-water impacts have been addressed both during construction and fbllowing construction. During construction, PHMR must obtain a Construction Storm- Water General National Pollutant Discharge Elimination System ("NPDES") Permit issued by WDOE. (FSEIS at l-23). This NPDES Permit requires implementation of best management practices to control and treat stoftn-water and quarterly monitoring all of which are designed to insure the construction storm-water does not negatively impact water quality as required by federal and state law. Like the permits issued forthe WWTP, failure to comply with an NPDES Permit leads to civil enforcement. ' Following construction, storm-water will be collected and conveyed to engineered holding ponds on site. The FSEIS concluded after eareful study that this on-site tr€atrnent system will improve existing conditions: Storm-water from the proposed developmurt area would be captured and treated for both solids (turbidity) and water quality 206 5471075 orn€cr ?06 5471958 pax 253.772 8267 uoatrE YYlr.houtlhan'trur.com must meet stringent design and o -il3 tz \ o Page 5 ') prior to discharge, thereby potentially improving water quality compared to existing conditions. (FSEIS 3.2-8). In response to Ordinance Condition 63(q) imposed by the Board, Pleasant Harbor developed a soils survey that outlined the soil conditions necessary to allow proper infiltration of storm-water and contouring to pr€vent off-site discharge. (FSEIS at l-24 and l-25). Those measures must be implemented in our stormwater engineering and are expressly included as part of our Development Agreement with the County. (Development Agreement at Section 9.2.3). 3. Habitat Buffer To further protect water quality from shoreline development, a 200-foot, vegetated buffcr along the undeveloped portion of the MPR boundary and Hood Canal will be maintained in perpetuity. (Development Agreement at Section 8.8.7 Appendix M.) Buffers are a recognized way to protect water quality (and habitat) from adjacent shoreline development. One commentator noted that the buffer did not coincide with the steep slope along Hood Canal or the County regulations regarding steep slopes. PHMR must comply with all existing critical area regulations in addition to the buffer. Our Development Agreement with the County does not exempt us from those regulations. Rather it includes and attaches those regulations as appendices. 4. Monitoring Even though the weight of study not likely to impact water quality, analysis the resort, as proposed, is agreed to quality to further guarantee that water quality will not by the resort.Water Quality Monitoring Plan (Appendix N to the Agreement) requires testing and analysis has been prepared to ensure that impact on water quality. operations do not have Taken together, these measures present an program to protect water quality resources and, commensurately, surrounding development. D. Salt-Water Intrusion in the Aquifer beds from the proposed Members of also commented that that groundwater to service the cause to the aquifer. First, it be noted that the also relies on the aquifer for water and thus, PHMR has same interest (if neighbors. Thea gxeater interest) in protecting the of the aquifer as paid particular attention to the issue of intrusion: zl <- a "h llu For purposes of SEPA (WAC 197-11440) the applicant's primary objectives for the proposal: 206 5471075 DrRr(r 206.547.1958 rAx )53.772.8267 uaP,.tc wv v,houtl h. n - tar.com o C o Page 6 . . . .* Prevent salt wrter intnrsion risks to potable weter wells. (FSEIS at2-15 and 2-16). The groundwater impact addendum (Appendix F of the FESIS) concluded that the proposed project would increase groundwater recharge to the aquifer as compared to existing conditions. (FSEIS, Table 3-2.1). Thus, after careful study by qualified professionals retained by the County, the FSEIS concluded that: "As long as neighboring domestic wells are not over-pumped and properly engineered and constructed, the potential for introducing salt water intrusion is low." (FSEIS at 4-5). 0 \ Additionally, PHMR's Water Right Permit (G2-30436) received from the State of Washington incorporates the "Groundwater Monitoring Plan" PHMR prepared as a condition of the permit. That plan requires the installation of water level and salinity dataloggers in eight existing and proposed wells rrcross the site. Water levels and water quality (including chloride levels) will be monitored on a periodic basis (20 minutes to hourly) over time. These data will be used to assess the effects of pumping the water supply wells and to provide a forewaming in the unlikely event that adverse water levels or adverse water quality (including saltwater intrusion) develop. (FSIES Lt4-2\. Thus, if signs of salt- water intrusion do occur because of PHMR's withdrawals it will be required to adjust withdrawals accordingly. OP E. Treffic Genereted by the Project lYtll Not Reduce Levels of Seryice Below Applicebte Thresholds and PHMR is Spendlng Roed Infrastructure Funds to Improve Traffrc studies prepared during the FSEIS rernained within approvable LOS limits at study "peak traffic impacts in2017 the project and under all development alternatives." (FSEIS at 3 3.e4).the traffrc study did note potential safety impacts as vehicles and enter the To address issues. PHMR agreed to make to US l0l. left-turn lane into Black and a right-hand taper lane to tum onto north bound US l0l.at 3.9-12). mitigation like the are included in our Agreement with the County and be part of phase of development.insures that the infrastructure constructed. support the units are in betbre the units are F. It is re to Preperc Detailed Plans One cenhal Commentators is that there are not the members of the design plans assess the project. the absence of a comprehensive management plan or plans the wastewater treatment plant other plans. It is premature to plans because the ?06,547,1o75 otn:r:r 206.547.1958 FAx 253.7728267 uoerLe www.houllh.n -tEw.corn Page 7 County has still not approved a development agreement or development regulations for the project. The design plans will depend upon the content of the development regulations and development agreement. The engineering process for a wastewater treatment is plant is expensive and dependent upon the cannot prepare those plans until it can state with the design criteria., site-specific development plans like a treatment plan and storm-water plans and later reviewed and approved by the application process. regulatory agencies when PFIMR For purposes ofthe Board:s decision,, the key points are that the Development Agreement requires that (l) a WWTP treating etlluent to Class A standards will be constructed during the first phase of and (2) storm-water management must be designed to retain and treat site. Thus, any future site-specific design plans must be meet these criteria. If conditions are not met, occupancy of units G. Tribal Consultation The local tribes, including the PGST, have been consulted since 1997 about an MPR at Black Point.2 During the past ten-years, PHMR has made a concerted effort to consult with the local tribes. including the PGST. A summary of those attempted consultation efforts follows: a June 2006-PHMR sent a letter local tribes, including the PGST, asking for its assistance in,identifying any in the area. The Skokomish Tribe was the tribe to respond. May 2012-PHMR again a letter to the PGST on its Cultural Resources Management the plan. The PGST did not respond on Late?0l2-loncemed with the lack of DAHP to engage the local tribes. County staff elicited the a a 201 3 that three tribes concurred with the the other three tribes did not comment. stated in a letter dated January I Resources Management Plan and It's whether the PGST concurred a a \s be found at the County's online file2 A list of communications with local tribes including the for the Brinnon MPR under Tribal Consultation". 206.547.tO75 orRECr 206.547.1958 rax 253,772.8267 uoqtt.r trww.houtlhrn -tlv.com v $ \ ^v November 19. 2014-{ounty staff sent the notice of availability of the DSEIS. The PGST responded asking for an to consult with the the PGST. The did not raise any \ \ \\ :\'- \ \ {-$ Page 8 issue with the kettles. PGST representative asked if they could submit comments for additional water quality monitoring and the County said they could. December 9. 2015-Ten months after meeting with the PGST the County issued the FSEIS. The PGST submitted no comments during the ten-month period between the February meeting and the issuance of the FSEIS. December 16. 2015-The PCST submits a letter to the County requesting a 60- day extension to "complete the Tribe's consultation". That letter also did not raise issue with the kettles. March 15. 2016-'l'he agreed to allow a 60-day extension. for first time since PI{MR applied to designate Black Point as an MPR cultural significance of the kettles. Despite the PCST's lack of involvement during both EIS processes (when PHMR was attempting to address issues in design) it still agreed to discuss ways to modifr the project to address the PGS and has been engaged in that process for the last two years. We provide a effort to address them: the concerns raised by the PGST and our o Shellfish-W a WWTP to Class A standards and all on site, coupled with of 100 acres, a 200-foot shoreline buffer plan water quality more so than any other project a a a County and protects for shellfish. We have PGST and others on the form a committee to study issues causing received. the but those proposals have not been a EIk-PHMR met with PGST a number and on site to address elk. Even though the wildlife to date state the elk will not uoss US l0l, water quality Duckabush to plainly states that the PHMR "shall the is appended to the Agreement PHMR has agreed to construct a US l0l and cannot be detemed assess whether a fence is suitable The intent, however, is clear. With has three l) investigate whether be used are for elk to elk to the resort; tactics,etc; and (3) if elk west facing fence in consultation erossing. on the west of US 101 if elk do cross other means.Agreement Plan that P). The PGST we have not or described it. to elk the Wildlife Plan are types ofgrasses and, ifthere are, use that can as not do come the resort disperse them to US 101 to the resort, construct a and WDFW to deter elk from o Cultural Resources-As noted above, PHMR made a concerted effort to obtain' tribal input on its plan from the outset. It only received meaningful comment from the Skokomish Tribe which agreed that inundating the kettles was the best way to preserve their cultural concerns with the kettles. Moreover, using the kettles for 206.547 1Ct75 crREcl 206 547.i958 rax 253.772.426? ra/)el&E wsw. houtlh.n -taw.cont that it cannot Page 9 by providing a means to keep it Canal. Based on that studies premised on using the kettles for treated stormwater storage attached emails). StiU, PHMR Development to preseNe a kettle (consistent with Ordinance No. 0l if the T list the kettles on lity for the kettle on the issue. The we do not preserve both kettles and because it did not want to participate in the management of the kettle. H. The Board Should Approve the Development Regulations Proposed by County Staff and the Development Agreement a. The Development Regulations Proposed by County Staff are Consistent with the County Comprehensive Plan and Ordinance No.08-0128-08, and Should be Approved The County' Comprehensive Plan designates Black Point for a master planned resort, but its development regulations do not authorize resort development. The proposed development regulations before the Board cure that inconsistency. The development regulations establish permissible uses, density and zones as contemplated by the County Comprehensive Plan. Approving these development regulations does not approve actual development. PHMR,like any other land owner, will still have to apply for all applicable permits and approvals prior to development including, but not limited to, grading permits, land division approvals and building permits. These applications will be reviewed for consistency with the proposed development regulations for the MPR as wcll as all other applicable components of the County Code. PHMR respectfully request that the Board vote to adopt the proposed development regulations. 2O6.547.1075 prnscr 206.547.1958 FAx 253.772.8267 mcntre vww, hosllhan-lew.com stormwater storage helps protect stormwater on site and to prevent input, PHMRhas spentmillions of c Nevertheless, PHMR still made a good-faith effort to address minute concerns and tried to negotiate a reasonable middle positions taken by the PGST and Skokomish. PI{MR invited s last the PGST kettles on three occasiorFflhe cultural or biological experts to PGST only accepted one ofl'er and did not bring its kettles because they were unavailable. (See I Page t0 infrastructure b. The Development Agreement Insures that Build{ut of the MPR will Proceed in an Orderly Manner and That Mitigation Measu res Identified in the EISs will be by the County The Development Agreement outlines how the rcsort developed. It is an agreement between PHMR and the County. Agreement: Among other the Development o Incorporates the required mitigation in the EISs; o Incorporates the Memorandums ofo Includes the monitoring and maintenance o that shall be followed changes to the resort plan. the County to enforce theIn short,Agreement provides a tool measures, MOU plans we have agreed to by during and following resort it will be recorded specifically applies to assigns, it witl any future owners or For the Development provides certainty if PHMR fulfills its end of the installs expensive upfront that County will not arbitrarily change codes to prohibit on Many of the will be madewe have agreed to to service the during the tirst phase of Forexamples. the , us 101 improvements. improvement to Black Point and development of recreation are all made as part of the first phase These are not economical unless we can rely on the presently Development Agreement provides the needed to PHMR and its we will be permitted to build out the resort if we make i nfrastructure investments. aware of comments that suggest period on the Development Agreement As we have stated in the goal is to achieve full-build well before expiration despite our best Dcvelopment Agreement.has taught us, however, that the development process longer than what we would otherwise pret'er. It has ten years just to get to A?S-year period is reasonable given the size of development regulations and a project and the time it taken thus far to secure PHMR requests that authorize the to enter into the Development L Conclusion ln summary, PHMR was to the Black area for a resort developmentbecause of its natural . PHMR appreciates that the success of the resort is dependent upon pr€serving the natural qualities that make the Black Point area a place people want to visit and on being a good member of the larger community. We believe we ?o6.547,1075 orR€cr 206,5.17.1958 tsex 253.172.A267 r,tttBtt-F wuw.h outlh.n - l.w.com agfeement, We Page 11 have designed a that goes economic activity,of the We look forward to (via email) Paty Charnas (via email) Phil Hunsucker (via email) to create balance between needed of the rural character. a successful addition to community. Sincerely, L a* John Harbor Mzrina and Resort LLP 206.547.1075 DrRe cr 206 5471958 FAx 2.53.772.8267 uaatr YYw.houllhan'[6w.com (