HomeMy WebLinkAbout2022 03 16 Notice of Appeal
NOTICE OF APPEAL 1
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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BEFORE THE JEFFERSON COUNTY HEARING EXAMINER
In Re Appeal of OAK BAY
CONCERNED CITIZENS,
Appellant,
v.
JEFFERSON COUNTY
Respondent.
NO. MLA21-00066
NOTICE OF APPEAL
I. IDENTITY OF APPELLANT
1. Appellant Oak Bay Concerned Citizens is an unincorporated group consisting of
dozens of residents in and around the Oak Bay region of Jefferson County. Oak Bay Concerned
Citizens mailing address is c/o Chris Malan, 3135 Oak Bay Rd., Port Hadlock, WA 98339.
2. Appellant is represented in this matter by Alex Sidles and Claudia Newman of Bricklin
and Newman, LLP. All correspondence in this matter should be directed to them, preferably via email:
Claudia Newman: newman@bnd-law.com
Alex Sidles: sidles@bnd-law.com
123 NW 36th Street, Suite 205
Seattle, WA 98107
(206) 264-8600
3. When contacting Mr. Sidles and Ms. Newman via email, please copy their staff at
cahill@bnd-law.com and miller@bnd-law.com.
NOTICE OF APPEAL 2
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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II. DECISION BEING APPEALED
4. Oak Bay Concerned Citizens challenge the March 2, 2022 SEPA determination of
nonsignificance (DNS) for the Pomona Woods projects, nos. MLA21-00066—ZON21-00040. A copy
of the DNS is attached to this notice of appeal.
III. STATEMENT OF LIKELY HARM
5. It is not a requirement of the Jefferson County Code or Hearing Examiner Rules to
provide a statement of harm in the notice of appeal. However, in the interest of forestalling unnecessary
motion practice, appellant includes the following statement of likely harm.
6. The Oak Bay Concerned Citizens consist of dozens of residents who reside near to the
Pomona Woods project. Some of the group members reside directly across the street from the project;
others reside adjacent; other reside in the immediate vicinity downslope.
7. The group members residing adjacent and in the immediate vicinity are the most
deeply affected. The project will result in new, commercial development in their residential
neighborhood. The new, commercial development will introduce new noise in the form of
construction noise, as well as increased traffic noise from staff and guests of the new facility, plus
vendor deliveries to the new facilities. The development will result in the clearing of trees that provide
habitat for wildlife which the adjacent and other nearby neighbors enjoy watching. The development
will destabilize the slopes by building structures and infrastructure atop an unstable slope, increasing
the risk of landslides and erosion onto the properties of the downslope members. The development
will introduce new impervious surface which will increase surface water runoff to member properties
that already suffer excessive surface runoff. The new, commercial development will result in aesthetic
impacts, in that it will ruin the existing rural views from the adjacent and nearby properties. The
NOTICE OF APPEAL 3
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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development’s increased impervious surface will also reduce the rate of recharge of the local aquifer—
which is already inadequate to support members’ existing water use.
8. In addition to the neighbors who reside adjacent and in the immediate vicinity, other
Oak Bay Concerned Citizens members reside nearby and use the same roads that traffic associated
with the project will use, especially including Oak Bay Road. Traffic on Oak Bay Road already poses
a hazard to these members, in that sightlines from Oak Bay Road to the members’ driveways are too
short. Adding traffic from the project onto Oak Bay Road will increase the danger these members
experience when they use their driveways. Still other members of Oak Bay Concerned Citizens ride
bicycles along the roads the project will use, including Oak Bay Road, and will be at greater risk of
traffic accidents due to the increased traffic on the roads.
9. The above statement of harms is not intended to be an exhaustive recital of harms the
Oak Bay Concerned Citizens members will experience. Appellant reserve the right to describe
additional harms should respondents challenge this appeal.
IV. BASIS FOR APPEAL
10. The State Environmental Policy Act (SEPA), chapter 43.21C RCW, requires that for
every decision on a major action significantly affecting the quality of the environment, the lead agency
must prepare an “environmental impact statement” or “EIS.” RCW 43.21C.030; WAC 197-11-400.
If the lead agency reasonably believes that a proposal may have a significant adverse impact, the lead
agency shall prepare an issue a determination of significance, which requires preparation of an EIS. If
the responsible official determines that the proposal will have no significant adverse environmental
impacts, the lead agency shall prepare and issue a DNS per WAC 197-11-340. Id.
11. The threshold determination must be based on information reasonably sufficient to
evaluate the impacts of the proposal. WAC 197-11-335; WAC 197.11-330. Ultimately, the threshold
NOTICE OF APPEAL 4
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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determination “must indicate that the agency has taken a searching, realistic look at the potential
hazards and, with reasoned thought and analysis, candidly and methodically addressed those concerns.
The DNS for the Pomona Woods project was issued in error for the following reasons.
12. Traffic: Cyclist Collision Hazard. The developer’s application materials, and the
County’s SEPA review based thereupon, do not disclose or analyze the project’s traffic impacts with
regard to cyclists. Oak Bay Road has an extremely narrow shoulder, such that there is insufficient
room for cars to safely pass cyclists. The application and SEPA materials do not discuss the extent to
which the increased traffic from the project will increase the risk to cyclists along Oak Bay Road. The
failure to analyze this issue means the SEPA determination was not based on information reasonably
sufficient to evaluate the project’s impacts. The probable impacts related to this issue will be
significant and adverse.
13. Traffic: Vehicle Collision Hazard. The developer’s application materials, and the
County’s SEPA review based thereupon, do not disclose or analyze the project’s traffic impacts with
regard to other vehicles. Driveways that outlet onto Oak Bay Road lack sufficient sight lines to enable
safe ingress and egress. By increasing traffic along Oak Bay Road, the project increases the already
substantial risk experienced by users of these driveways. The failure to analyze this issue means the
SEPA determination was not based on information reasonably sufficient to evaluate the project’s
impacts. The probable impacts related to this issue will be significant and adverse.
14. Traffic: Obstruction of Oak Bay Road During Construction. The developer’s
application materials, and the County’s SEPA review based thereupon, do not disclose or analyze the
project’s traffic impacts with regard to construction impacts. During construction of the project,
commercial trucks hauling construction materials and performing the logging operations that are part
of the project will have to load and unload at the edge of Oak Bay Road. During the loading and
NOTICE OF APPEAL 5
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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unloading, traffic along Oak Bay Road will be partially obstructed, and the collision hazard along Oak
Bay Road will be increased. The failure to analyze this issue means the SEPA determination was not
based on information reasonably sufficient to evaluate the project’s impacts. The probable impacts
related to this issue will be significant and adverse.
15. Landslides and Erosion. The developer’s application materials include a geotech
report that finds that development of the project will not cause or exacerbate the risk of landslides or
erosion. This claim is incorrect. Development of the project will increase the risk of landslides and
erosion. Because the conclusion of the geotech report is factually incorrect, the SEPA determination
was not based on information reasonably sufficient to evaluate the project’s impacts. The probable
impacts related to this issue will be significant and adverse.
16. Stormwater Runoff. The developer’s stormwater management plan fails to consider
the environmental effects of increased stormwater runoff onto the neighboring properties. The failure
to analyze this issue means the SEPA determination was not based on information reasonably
sufficient to evaluate the project’s impacts. The probable impacts related to this issue will be
significant and adverse.
17. Insufficient Availability of Water. The developer’s application materials include a
certification of water supply, and the staff report includes a determination by County staff that
adequate water supplies exist to support the development. In reality, the local aquifer is insufficient to
support the project. Jefferson County Public Utility Department does not have a connection to the
property, and such a connection may not be possible. Nothing in the application materials explores
alternative water sources in the event the JPUD connection proves to be impossible. Nothing in the
application materials or SEPA materials evaluates the environmental impacts if the developer does
decide to drill a well into the aquifer. The failure to analyze this issue means the SEPA determination
NOTICE OF APPEAL 6
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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was not based on information reasonably sufficient to evaluate the project’s impacts. The probable
impacts related to this issue will be significant and adverse.
18. Aquifer Recharge. The local aquifer is already inadequate to support the existing
users, especially during summer. By adding impervious surface, the developer will reduce the rate of
aquifer recharge, worsening the already severe water shortage for existing properties that depend on
the aquifer. The County explicitly declined to require the developer to complete an aquifer recharge
report, nor do any of the other application materials consider the project’s impacts on aquifer recharge.
The failure to analyze this issue means the SEPA determination was not based on information
reasonably sufficient to evaluate the project’s impacts. The probable impacts related to this issue will
be significant and adverse.
19. Noise. The developer’s application materials, and the County’s SEPA review based
thereupon, do not disclose the level of noise the project will produce, both during construction and
operation. The staff report acknowledges there has been no noise study. Potential noise sources not
analyzed include construction-related noise (including logging and grading); traffic noise from guests,
staff, and vendors; and noise from guests and staff using the grounds of the facility once it is complete.
The failure to analyze this issue means the SEPA determination was not based on information
reasonably sufficient to evaluate the project’s impacts. The probable impacts related to this issue will
be significant and adverse.
20. Light and Glare. The developer’s application materials, and the County’s SEPA
review based thereupon, do not disclose the level of light and glare the project will produce. The
project will introduce a new, commercial facility in a residential neighborhood. The impacts will
include light, including new outdoor light sources, and glare from the large windows of the project.
The failure to analyze this issue means the SEPA determination was not based on information
NOTICE OF APPEAL 7
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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reasonably sufficient to evaluate the project’s impacts. The probable impacts related to this issue will
be significant and adverse.
21. Aesthetic Impacts. The developer’s application materials, and the County’s SEPA
review based thereupon, do not discuss the aesthetic the project will produce. The project will
introduce a large, tall, bulky, commercial facility in a residential neighborhood. The County has failed
to evaluate whether the landscaping is adequate to buffer the aesthetic impacts from surrounding
properties—the County simply assumes that it will be adequate. The failure to analyze this issue means
the SEPA determination was not based on information reasonably sufficient to evaluate the project’s
impacts. The probable impacts related to this issue will be significant and adverse.
22. Habitat: The project includes logging of old trees to accommodate the new
commercial facility. This will result in a loss of habitat for wildlife. The developer’s SEPA materials
list some species that are suspected to be present, but do not evaluate these species’ use of the property,
nor the project’s impacts upon these species. The failure to analyze this issue means the SEPA
determination was not based on information reasonably sufficient to evaluate the project’s impacts.
The probable impacts related to this issue will be significant and adverse.
V. REQUESTED RELIEF
22. For the foregoing reasons, the Hearing Examiner should reverse the Determination of
Nonsignificance.
NOTICE OF APPEAL 8
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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Dated this 16th day of March, 2022.
Respectfully submitted,
BRICKLIN & NEWMAN, LLP
By:
Claudia Newman, WSBA No. 24928
Alex Sidles, WSBA No. 52832
123 NW 36th St., Suite 205
Seattle, WA 98107
newman@bnd-law.com
sidles@bnd-law.com
Attorneys for Oak Bay Concerned
Citizens
ATTACHMENT
JEFFERSON COUNTY
DEPARTMENT OF COMMUNITY DEVELOPMENT
621 Sheridan Street | Port Townsend, WA 98368
360-379-4450 | email: dcd@co.jefferson.wa.us
www.co.jefferson.wa.us/commdevelopment
FINAL
DETERMINATION OF NON-SIGNIFICANCE
AND LEAD AGENCY STATUS
DATE: March 2, 2022
PROPONENT: Pomona Woods, LLC, Ann Burkhart
APPLICATION: MLA21-00066 – ZON21-00040
PROPOSAL: TYPE III CONDITONAL USE PERMIT FOR A SMALL-SCALE TOURIST
RECREATION USE RETREAT CENTER - Pomona Woods LLC (“the applicant”) proposes to construct
a commercial, small-scale tourist and recreational retreat center (“Pomona Woods”) along Oak Bay Road
in Port Hadlock, Washington. The Pomona Woods Retreat Center would accommodate guest reservations
for group activities such as yoga retreats, business group retreats, and corporate or not-for-profit strategic
planning. Rooms would not be reserved for individual guests. The 7,155 square foot Pomona Woods Retreat
Center proposes twenty-four rooms, a commercial kitchen to serve guests three meals a day, and would
accommodate a maximum of thirty-five guests and seven employees. A caretaker residence (for two on-
site caretakers), septic system, main parking lot (29 stalls), caretaker parking area (2 stalls), lawn area, one
access road, and one entrance sign are also proposed to serve the retreat center. The proposal would create
53,497 square feet of new impervious surface. All work would be conducted on a vacant, heavily forested
property. There is a Coastal Saltwater Intrusion Protection Zone located on the property. No other critical
areas are located on the property. The applicant has submitted a SEPA Environmental Checklist,
Stormwater Pollution Prevention Plan, Custom Soil Resource Report, Class IV General Forest Practice
Application, and Geotechnical Report in conjunction with the Conditional Use (Type III) Permit
application. The proposal is subject to review under the State Environmental Policy Act (SEPA).
PROPERTY LOCATION: The proposed project is located along Oak Bay Road in Port Hadlock, WA
98339 (Parcel # 921183008 and 921183002; Section 18 - Township 29N - Range 1E).
LEGAL DESCRIPTION: The subject parcels are legally described as S18 T29 R1E S 1/2 SE SW and
S18 T29 R1E GOV LOT 4(S1/2 W OF CO RD).
NOTICE OF LEAD AGENCY: Jefferson County has determined it is lead agency for the above-
described proposal.
NOTICE OF NON-SIGNIFICANCE: Jefferson County has determined that the above described
proposal, conducted in conformance with the applicable Jefferson County Codes and Ordinances, would
not have a probable significant adverse impact on the environment, and an environmental impact
statement is not required. This determination was made after review of a completed environmental
checklist and other information on file with the Jefferson County Development Review Division and an
inspection of the site.
COMMENT PERIOD: This Determination of Non-Significance (“DNS”) is issued after using the
optional DNS process in Washington Administrative Code (“WAC”) 197-11-355. Jefferson County has
considered comments on its preliminary determination of non-significance. There is no further comment
period on the DNS.
*Exhibit S*
APPEAL PERIOD: This determination is issued pursuant to WAC 197-11-340(2)(f). Jefferson County
has considered comments on its preliminary determination of non-significance. Any appeal of this
determination on the basis of noncompliance with the provisions of Chapter 43.21c RCW must be
submitted in writing (via mail or personal delivery) with the required appeal fee by 4:30 p.m., March 16,
2022 to the Jefferson County Department of Community Development (“DCD”), Development Review
Division (621 Sheridan Ave, Port Townsend, WA 98368) for consideration by the Jefferson County
Hearing Examiner.
The DNS determination may be appealed to the hearing examiner pursuant to JCC 18.40.280(3)(b),
Chapter 2.30 JCC, and the Hearing Examiner rules of Procedure. The open record public hearing on the
SEPA appeal shall be before the hearing examiner, who shall consider the appeal together with the
decision on the project application in a single, consolidated hearing. The appeal must be in writing, in
conformance with JCC 18.40.330, and be filed within 14 calendar days after the threshold determination
is issued as set forth in subsection (4) of this section. Appeals of environmental determinations under
SEPA, shall be consolidated with any open record hearing on the project permit.
_________________________________________________ ______________
Brent A. Butler, SEPA Responsible Official Date
March 1, 2022