HomeMy WebLinkAbout2022-10-07 Joint Closing Brief
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
BEFORE THE HEARING EXAMINER
FOR JEFFERSON COUNTY
In Re Appeal of OAK BAY CONCERNED CITIZENS,
Appellant,
v.
JEFFERSON COUNTY,
Respondent.
No. MLA21-00066
JEFFERSON COUNTY AND
APPLICANT’S JOINT CLOSING BRIEF
I. INTRODUCTION
The record shows the Pomona Woods project (“Project”) will have no significant adverse
impacts and meets the criteria for approval of a Conditional Use Permit (“CUP”). Accordingly,
Jefferson County (“County”) and the applicant Ann Burkhart (“Applicant”) jointly request denial
of the appeal of the Determination of Nonsignificance (“DNS”) and approval of the CUP for the
Project with the conditions recommended in the staff report for the Project (“Staff Report”).
II. STATEMENT OF FACTS
A. The Project
The proposal is for a conditional use permit for the Project, a small-scale recreational
retreat center on an approximately 21-acre site on Oak Bay Road in the Port Hadlock area of the
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
County. Ex. 53, pp. 0746-0747.1 The retreat center building has 24 rooms and a commercial
kitchen to serve guests 3 meals a day. Id., pp. 0746, 0771. This building is two stories, with a
compact 7,155 square foot (“SF”) footprint and a maximum of 12,000 SF in total. Id., p. 0746-
7047, 0771. The Project also includes a caretaker’s residence with a 710 SF footprint and a
parking lot to accommodate 30 vehicles. Id., pp. 0746, 0766. The Project will be situated on the
southwestern part of the property with a driveway onto Oak Bay Road. The Project’s septic
system is located in the northeastern part of the property. The site plan appears at Exhibit 45:
The Project limits the number of guests to 35 and allows only groups with no individual
reservations. Ex. 53, p. 0775, Ex. 48, p. 0611. The Project includes extensive mitigation,
including generous 50-foot densely vegetated buffers, prohibiting outdoor amplification and
requiring nighttime “quiet hours,” keeping outdoor lights low and screened, meeting stormwater
standards and avoiding all critical areas and buffers. Ex. 53, pp. 0775 (stormwater conditions),
1 References are to the Exhibit number on the County’s exhibit list and the Bates stamped page number.
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
0775-0776 (wetland condition), 0776-0777 (noise condition), 0777 (stormwater, buffer and light
and glare conditions).
B. Property and Vicinity
The property is currently undeveloped and dominated by native forest. There are four
wetlands and two streams located on or near the property that are not impacted by the Project.
The property is bounded to the east by Oak Bay Road, forestry lands to the north and west, and
single-family residences to the northeast and south. Ex. 49, pp. 0636, 0662; Ex. 53, p. 0747.
The vicinity is developed with additional single-family residences.
The property is located in the Rural Residential 1:5 and 1:20 zones, which allow small
scale recreational retreat centers with a CUP. Ex. 53, p. 0747. Such uses are consistent with the
Comprehensive Plan goals for rural areas, which provide that the County should “[f]oster
economic development that relies on a rural location and setting, and that is small scaled
recreational or tourist-related.” Id., p. 0756.
C. County Review Process
The County initially issued a DNS for the Project on March 2, 2022. Appellant Oak Bay
Concerned Citizens (“Appellant”) filed a notice of appeal of the DNS. Ex. 53, p. 0748.
Following submission of a critical areas report, the County withdrew the initial DNS and issued a
new DNS on August 31, 2022. Id. Appellant filed a second notice of appeal adding claims
regarding wetlands.
The Examiner held a two-day open record hearing on September 26 and 27, 2022. The
hearing included a pre-decisional public hearing on the CUP and an appeal hearing on the DNS
appeal. In addition to verbal comments, the Examiner allowed written comments on the CUP by
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
individuals who were unable to attend in person or who had more extensive comments than they
could present in verbal testimony.
III. AUTHORITY
A. The Examiner should deny the DNS appeal.
1. Appellant failed to meet its burden of proof.
The decision to issue a DNS is accorded substantial weight. RCW 42.32C.090; Jefferson
County Code (“County Code” or “JCC”) 18.40.810(9). The appellant bears the burden of
establishing that the DNS was clearly erroneous. Boehm v. City of Vancouver, 111 Wn. App.
711, 718, 47 P.3d 137 (2002); Moss v. City of Bellingham, 109 Wn. App. 6, 13, 31 P.3d (2001).
To meet its burden, the appellant must provide affirmative evidence that a significant adverse
impact is the probable result of the project. Boehm, 111 Wn. App. at 719-20 (“when the Boehms
complain of a failure to adequately identify or mitigate adverse impacts, they have produced no
evidence that such impacts exist”); Moss, 109 Wn. App. at 23-24 (“although appellants complain
generally that the impacts were not adequately analyzed, they have failed to cite any facts or
evidence in the record demonstrating that the project as mitigated will cause significant
environmental impacts warranting an EIS”). Notably, the Supreme Court adopted the clearly
erroneous standard of review for SEPA determinations out of concern for the “potential for
abuse” of the law to limit the ability of property owners to obtain development permits, noting
the need for an “appropriate balance between economic, social, and environmental values” and
cautioning that “SEPA should not be used to block construction of unpopular projects.” Cougar
Mountain Assocs. v. King Cty., 111 Wn.2d 742, 748–49, 765 P.2d 264, 268 (1988) (internal
quotations omitted).
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
Here, Appellant claims there will be significant adverse impacts in the following areas:
(1) traffic safety; (2) wetlands, streams and habitat; (3) landslide, erosion and stormwater; (4)
noise; and (5) light and glare and aesthetic impacts. As discussed below, Appellant failed to
satisfy its burden of proof on any of these issues.1
2. Appellant failed to meet it burden to show significant adverse traffic safety impacts.
Appellant’s witness Ross Tilghman admitted that the Project will not result in problems
with level of service (“LOS”) and that warrants for a left turn lane are into the Project driveway
not met here. Ex. 28, p. 0504; Tilghman Testimony. Despite these admissions, which recognize
the fact that the Project will not create traffic congestion and that Oak Bay Road has sufficient
capacity for existing and Project traffic, Appellant nevertheless asserts there will be significant
adverse traffic safety impacts. Appellant fails to meet its burden of proof.
Appellant claims the slight offset between the Project driveway and the single-family
residential driveway across Oak Bay Road will result in significant adverse safety impacts. But
the driveways are almost completely aligned. Ex. 39; Ex. 67, pp. 0850-0851; Swenson
Testimony.2 There is good sight distance on Oak Bay Road in this location and cars exiting the
driveways will be able to see each other. Reinders Testimony. See selections from Ex. 39 (upper
image) showing driveway alignment and Ex. 30, p. 0526 (lower image), showing clear line of
sight between driveways:
1 In its notice of appeal, Appellant also raised a claim about insufficient availability of water and aquifer recharge but did not present any evidence on this point. Appellant has abandoned this issue. Olympic Stewardship Found. v.
Envtl. & Land Use Hrgs. Office, 199 Wn. App. 668, 687, 399 P.3d 562 (2017) (“We also do not consider claims unsupported by legal authority, citation to the record, or argument.”). The evidence shows the Project will connect to the public water system. Ex. 53, pp. 0751, 7054; Ex. 65, pp. 0825-0828. 2 The reason for the slight offset is that the Project driveway must be located 10 feet from the County culvert under Oak Bay Road. Ex. 38, p. 0553; Reinders Testimony.
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
In addition, the traffic volumes on Oak Bay Road and both driveways are very low.
Swenson Testimony, Reinders Testimony. Even using Mr. Tilghman’s estimate, full Project
occupancy of 35 guests will only generate 18 cars a day. Ex. 28, p. 056. If every guest arrives in
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
the same hour, this is a maximum of 18 cars in one hour. Swenson Testimony. Typical industry
standard would be 10% of daily trips per hour. Id. Monte Reinders, the Public Works Director,
testified that there are many instances of offset driveways on Oak Bay Road, and these locations
do not have a history of accidents. Reinders Testimony. In short, this is a ubiquitous condition
on Oak Bay Road that is not likely to result in safety impacts.
Mr. Tilghman also claimed there is a danger of rear end collision associated with cars
waiting on Oak Bay Road to turn left into the Project. But, as stated above, Mr. Tilghman
admitted that Washington Department of Transportation (“WSDOT”) left turn lane warrants are
not met. Ex. 28, p. 0504; Tilghman Testimony. Mr. Reinders testified that cars making left turns
into driveways is a common occurrence on Oak Bay Road and does not result in accidents.
Reinders Testimony. Again, there is no significant risk of accident because the low traffic
volumes and good sight distances in this location. Id.
Finally, Mr. Tilghman claimed that the Project would result in significant pedestrian and
bicycle safety impacts. Due to the low volume of traffic from the Project, however, the Project
will not significantly contribute to pedestrian and bicycle risk on Oak Bay Road, which has low
pedestrian and bicycle use. Reinders Testimony.1
Appellant failed to meet its burden of proof and the Examiner should reject Appellant’s
claims relating to traffic safety impacts.
3. Appellant failed to meet its burden to show significant adverse wetland, stream or habitat impacts.
Appellant’s witness Diane Brewster initially contested the wetland ratings of several
1 Mr. Tilghman’s memo includes other claims that he did not specifically address at hearing. Ex. 28. Mr. Swenson’s memo responds to each of these claims. Ex. 67.
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
wetlands on and near the property. Ex. 69. However, after responsive testimony by the
Applicant’s expert Jennifer Marriott, Ms. Brewster abandoned nearly all her former claims.
Marriott Testimony; Exs. 49, 83, 85, 86, 87; Brewster Rebuttal Testimony. The sole claim Ms.
Brewster continued to make is that Wetland A should have been rated as a depressional wetland.
Yet Ms. Brewster has never been to the site and has never even seen Wetland A. Brewster
Testimony. Ms. Marriott’s testimony regarding that wetland rating is based on actual in the field
observation, as is the testimony of Donna Frostholm, County Department of Community
Development (“DCD”) wetland specialist, and the Examiner should reject Ms. Brewster’s
contrary testimony which is based exclusively on a single photograph of a portion of the wetland.
Ex. 83; Marriott Testimony; Brewster Testimony.
Further, the rating of Wetland A does not matter. Even if Wetland A were rated as
depressional, its functional score would not increase enough to change its buffer. Ex. 83, pp.
1053-1054; Marriott Testimony. And, even if its buffer were increased, Project improvements
would still be outside the buffer, as Wetland A is located in the far southwest corner of the
property well away from any Project improvements. Ex. 49, p. 0662. Ms. Brewster suggested a
buffer increase would affect where people could walk, but passive recreational activities such as
hiking are allowed in wetland buffers. JCC 18.22.230(4)(l). Appellant failed to meet its burden
to show significant adverse wetland impacts.
Ms. Marriott’s report establishes there are no significant adverse impacts on either
streams or habitat. Ex. 49; Marriott Testimony. Appellant presented no evidence regarding
streams or habitat impacts generally. Appellant has abandoned these claims. Olympic
Stewardship Found., 199 Wn. App. at 687.
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
In sum, the evidence at hearing showed the Project avoids wetlands, streams and their
buffers and has no significant impact on critical areas. See selection from Ex. 49, p. 0662:
Appellant failed to meet its burden of proof and the Examiner should reject Appellant’s
claims relating to wetland, stream and habitat impacts.
4. Appellant failed to meet its burden to show significant adverse noise impacts.
There is no dispute that the Project meets the County’s adopted noise standards. Warner
Testimony. The Appellant’s noise witness freely admitted as much. Jenkins Testimony; Ex. 29,
pp. 510-513, 515, 518. This is true even though Appellants’ noise modeling included several
assumptions that would result in higher predicted sound levels. Ex. 66, p. 0844-0845. The
Examiner’s inquiry should end here.
JCC 8.70.050(1) adopts the noise limits contained in WAC 173-60. These standards
were adopted by the Department of Ecology. They set maximum noise levels at the property line
that vary depending on the land use of the source and receiving properties. WAC 173-60-040.
These standards are not limited in use to loud environments; rather, on their face, they apply to
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
all environments. Local governments are prohibited from adopting different standards without
Ecology approval: “No ordinance or resolution of any local government which imposes noise
control requirements differing from those adopted by the department shall be effective unless
and until approved by the director [of Ecology].” WAC 173-60-110(2).
These standards are also adopted by the County as the basis for exercise of its substantive
SEPA authority. JCC 18.40.770(3).1 The County has the authority to condition a project under
SEPA only if “[s]uch conditions are based on one or more policies” adopted in JCC 18.40.770(3)
as the basis for the exercise of its substantive SEPA authority. JCC 18.40.770(1); WAC 197-11-
660. The authority to deny a project is similarly limited. JCC 18.40.770(2); WAC 197-11-660.
Appellant urges the Examiner to ignore the County’s substantive SEPA policies, as well
as the provisions of state law requiring Ecology approval for adoption of different noise
standards, and instead base his decision on a standard the County has not adopted. Specifically,
Appellant suggests the Examiner should adopt the guidelines in an EPA Region X document
from 1973 entitled “Environmental Impact Statement Guidelines.” Ex. 29, p. 0515. Based on
these unadopted guidelines, Appellant characterizes the potential sound level increases as
“significant” or “severe.” Id., p. 0508; Jenkins Testimony. The Examiner should decline this
invitation to act contrary to County Code and state law.
The Examiner should not apply any standard other than the one in the County Code.
However, even if the Examiner were to do so, the standard suggested by Appellant would be
inappropriate. Instead, a standard that is designed to measure annoyance from new long-term
1 JCC 18.40.770(3) designates a list of County Code sections and chapters and “other county plans, ordinances, regulations and guidelines adopted after the effective date of this Unified Development Code” as the basis for exercise of the County’s substantive SEPA authority. The Unified Development Code was adopted by Ordinance 8-06 on 7/10/06. The noise ordinance, JCC Ch. 8.70, was adopted by Ordinance 2-15 on 2/9/15.
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
sounds would be most applicable. Under such a standard, the Project would have no significant
impact. Ex. 66, pp. 0843-0844, 0846-0848.
The Appellant advocates that the Examiner limit hourly noise emissions from the Project
to no more than 44 dBA during the day and 36 dBA at night based on an hourly L25 metric. Ex.
29, p. 0508. (Appellant’s noise report also suggested a limit based on Lmax but Appellant’s
witness abandoned this suggestion in testimony.) Yet, in addition to being contrary to law, these
limits are not reasonable on their face: they are lower than the existing hourly ambient noise
levels during several hours as measured by Appellant’s consultant. Ex. 29, p. 0519.
The Staff Report includes a number of reasonable, feasible measures to reduce noise from
the Project, including (1) a prohibition on outdoor amplification; (2) limitations on the hours of
deliveries and construction; (3) limitations on the number of guests who can gather outside; (4)
limitations on the hours of outdoor activities; (4) quiet hours; (5) 15 mph speed limit on the
driveway; and (6) guest contracts, website language, and guest orientations that emphasize the
need to respect neighbors. Ex. 53, pp. 0776-0777. The Appellant has not shown that there will
be significant adverse impacts and no further mitigation is warranted.
5. Appellant failed to meet its burden to show significant adverse landslide,
erosion or stormwater impacts.
Appellant did not present expert testimony on landslide, erosion or stormwater impacts.
Members of the public testified about their fears that the Project would increase the risk of
erosion and landslide that has occurred in the past on shoreline properties near the Project site.
The Applicant’s expert stormwater engineer, Laura Bartenhagen, testified that recommended
conditions of approval in the Staff Report address this concern. These conditions include
Conditions 1, 2, 4-6, 12, 27 and 28. Ex. 53, pp.0774, 0775, 0777. They require that the Project
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
meet the 2019 Western Washington Stormwater Manual. Id. at pp. 0775, 0777; Bartenhagen
Testimony. Stormwater from the Project will be dispersed on site in accordance with the
Manual. Ms. Bartenhagen testified that the manual requires a 100-foot vegetated flow path for
dispersion, which is present on the property. Bartenhagen Testimony. While final engineering
will occur at the construction permit stage, this method of handling stormwater is feasible. Id.
This conclusion is consistent with the geotechnical report prepared for the Project, which
concludes the Project will not result in erosion or landslide risk if the requirements of the Manual
are followed. Ex. 9, p. 0136. Appellant failed to meet its burden of proof to show significant
adverse landslide, erosion, or stormwater impacts.
6. Appellant failed to meet its burden to show significant adverse light and glare and aesthetic impacts.
Appellant did not present expert testimony on light and glare impacts. Members of the
public testified about their concern that light and glare from the Project would be visible to
neighbors and that the Project architecture would not be in keeping with nearby residences. Yet
the Project consists of a small retreat center with only a 7,155 SF footprint that is just two stories
in height and a caretaker’s residence. Ex. 53, p. 0766. The Project is on over 21 acres and
leaves 80% of native vegetation undisturbed. Id., p. 0747. The Project includes dense 50-foot
buffers, 35 feet wider than required by the County Code. Id., pp. 0748, 0761, 0777. Further, the
Project includes substantial setbacks. The retreat center building is 239 feet from the nearest
parcel line and approximately 500 feet from the nearest existing single-family residence on Oak
Bay Road. Id., p. 0760. The caretaker’s residence is approximately 92 feet from the property
line and 350 feet from the nearest existing single-family residence on Oak Bay Road. Id. Ms.
Hunt testified these setbacks and buffers would address any visual impacts. See Ex. 53, p. 0760:
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
While Appellant’s witness suggested some of the buffer area was sparsely treed, Ms.
Hunt testified that any sparse areas would need to be revegetated to comply with County Code
provisions, as required in condition 29 in the Staff Report. See Ex. 53 p. 0777. Hunt Testimony.
JCC 18.30.130 governs these buffers. See Ex. 53, p. 0777. JCC 18.30.130(5) requires that
“Screen A” landscaping be provided on interior lot lines of small-scale recreational and tourist
development adjacent to a residential use. Screen A landscaping is “a ‘full screen’ that functions
as a visual barrier.” JCC 18.30.130(3)(a). Screen A landscaping “[s]hall at a minimum consist
of . . . . [a] mix of primarily evergreen trees and shrubs generally interspersed to form a
continuous year-round screen that grows at least eight feet in height within two growing
seasons.” Id. Existing trees and vegetation fulfill the landscaping or screening requirements of
Section 18.30.130 only if they “meet or exceed these standards.” Id..
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
Members of the public also expressed concern about the Project sign on Oak Bay Road.
But the staff-recommended conditions of approval address this issue, limiting the size of the sign
and its proximity to Oak Bay Road, and requiring that “[s]ign light fixtures illumination shall be
shielded and directed in a manner not to adversely affect neighboring properties or create a
hazard to on-coming Oak Bay Road traffic.” Ex. 53, p. 0777.
Appellants failed to meet their burden of proof to show that the Project will result in
significant adverse light and glare impacts.
B. The Examiner should approve the CUP.
The Project meets the criteria for approval of a CUP, which are set out in County Code
section 18.40.530(1). These standards and the Project’s compliance with them are exhaustively
discussed in the Staff Report. Ex. 53, pp. 0759-0774. To avoid repetition, this brief adopts the
discussion in the Staff Report by reference. The concerns raised by members of the public relate
to the environmental issues discussed above in relation to the SEPA appeal. For the reasons
discussed previously, these concerns have been fully addressed by the Project design, staff-
recommended conditions and the expert testimony provided in the SEPA appeal hearing. The
Project is a small scale, thoughtfully designed Project that will be an asset to the community. Ex.
73. The Examiner should approve the CUP with the staff-recommended conditions.
IV. CONCLUSION
The Project will have no significant adverse impacts and satisfies the criteria for approval
of a CUP. The Examiner should deny the DNS appeal and approve the CUP.
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
DATED this 7th day of October, 2022.
JAMES KENNEDY PROSECUTING ATTORNEY FOR JEFFERSON COUNTY s/Barbara D. Erlichman, WSBA #18378
Civil Deputy Prosecuting Attorney
1820 Jefferson Street P.O. Box 1220 Port Townsend, WA 98368 Tel: 360-385-9180
Email: BErlichman@co.jefferson.wa.us
Attorneys for Respondent Jefferson County
s/Courtney A. Kaylor, WSBA #27519 McCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600
Seattle, WA 98104 Tel: 206-812-3388 Fax: 206-812-3398 Email: courtney@mhseattle.com
Attorneys for Applicant Pomona Woods LLC