HomeMy WebLinkAbout2022 09 14 Second Notice of Appeal
SECOND 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,
Appellants,
v.
JEFFERSON COUNTY
Respondent.
NO. MLA21-00066
SECOND NOTICE OF APPEAL
I. IDENTITY OF APPELLANTS
1. Appellants 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 may be contacted c/o Chris Malin, 3135 Oak Bay Rd., Port Hadlock, WA 98339.
2. Appellants are 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
SECOND 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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3. When contacting Mr. Sidles and Ms. Newman via email, please copy their staff at
cahill@bnd-law.com and miller@bnd-law.com.
II. DECISION BEING APPEALED
4. Oak Bay Concerned Citizens challenge the August 31, 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, Appellants include the following statement of likely harm.
6. The Oak Bay Concerned Citizens consists 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
SECOND 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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will result in aesthetic impacts, in that it will ruin the existing rural views from the adjacent and
nearby properties. The 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.
The developer’s siting of impervious surfaces and a septic field within the critical areas buffers of
streams and wetlands will also degrade local water quality.
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. Appellants reserve the right to describe
additional harms should respondents challenge this appeal.
IV. BASIS FOR APPEAL
10. SEPA requires that each DNS be based on information reasonably sufficient to
evaluate the impacts of the proposal. WAC 197-11-335. SEPA also requires a determination of
significant (as opposed to a DNS) if the project’s impacts will likely be significant and adverse.
WAC 197-11-330. In the following ways, the County’s review of the impacts of the Pomona Woods
project are not based on sufficient information; and the impacts of the project will be significant and
adverse.
SECOND 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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11. 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 of this issue will be
significant and adverse.
12. 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 of this issue will be significant and adverse.
13. 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
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
SECOND 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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was not based on information reasonably sufficient to evaluate the project’s impacts. The probable
impacts of this issue will be significant and adverse.
14. 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 of this issue will be significant and adverse.
15. 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 of this issue will be significant and
adverse.
16. 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 was not based on information reasonably sufficient to evaluate the project’s impacts.
The probable impacts of this issue will be significant and adverse.
SECOND 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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17. 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 of this
issue will be significant and adverse.
18. 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 noisy 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 of this
issue will be significant and adverse.
19. 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
reasonably sufficient to evaluate the project’s impacts. The probable impacts of this issue will be
significant and adverse.
SECOND 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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20. 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 of this issue will be significant and adverse.
21. 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 of this issue will be significant and adverse.
22. Wetlands and Streams: The applicant’s revised critical areas report mis-types and
mis-delineates onsite and adjacent offsite wetlands, and mis-types onsite and adjacent streams. In
reality, the wetlands and streams are required to have larger buffers than those depicted on the
critical areas report. The proposed septic field, road construction, and building construction all
intrude upon the buffers.
V. REQUESTED RELIEF
23. For the foregoing reasons, the Hearing Examiner should reverse the Determination of
Nonsignificance.
SECOND 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 14th day of September, 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
NOTICE OF DETERMINATION OF NON-SIGNIFICANCE (DNS) WITHDRAWL & FINAL DNS AND LEAD AGENCY STATUS
DATE: August 31, 2022
PROPONENT: Pomona Woods, LLC, Ann Burkhart
APPLICATION: MLA2021-00066 – ZON2021-00040 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 (30 stalls), caretaker parking area (1 stall), lawn area, one access
road, and one entrance sign are also proposed to serve the retreat center. The proposal would create 60,621 square feet of new impervious surface. All work would be conducted on a vacant, heavily forested property. There are two Type “Ns” Streams (seasonal non-fish bearing), four Category IV Wetlands, and a Coastal Saltwater Intrusion Protection Zone located on or adjacent to subject property. No other critical areas are located on the property. The applicant has submitted a SEPA Environmental Checklist, Critical Areas Report,
Upland Restoration Memorandum, 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: A Determination of Non-Significance (DNS) for Pomona Woods was issued on March 2, 2022. The March 2 DNS is now withdrawn. A new SEPA Determination of Non-Significance (DNS) has been issued on August 31, 2022 for Pomona
Woods. This determination was made after review of a revised environmental checklist and other updated permit application materials on file with the Jefferson County Development Review Division, and an inspection of the site. In July and August 2022, the applicant submitted a revised Site Plan, Critical Areas Report, and Upland Restoration Memorandum in conjunction with the Pomona Woods application. These submittals revealed the presence of streams and wetlands on the subject property. Wetland protection and mitigation plans included in the 2022 submittals satisfy the requirements of JCC 18.22.730 and JCC 18.22.740, and therefore satisfy local and state requirements of JCC Chapter 18.22 Critical Areas, Article VII. Wetlands.
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 additional mitigation or an environmental impact statement is not required. COMMENT PERIOD: This 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. APPEAL PERIOD: This determination is issued pursuant to WAC 197-11-340. Jefferson County has considered comments on its preliminary DNS. 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 PM, September 14, 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.
_________________________________________________ ______________ Josh D. Peters, AICP, SEPA Responsible Official Date
8/31/22