HomeMy WebLinkAboutLog099
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BEFORE THE WESTERN WASHINGTON
GROWTH MANAGEMENT HEARINGS BOARD
NANCY DORGAN,
Petitioner,
Case No. 05-2-0008
v.
ORDER OF DISMISSAL
JEFFERSON COUNTY,
Respondent.
THIS Matter comes before the Board upon the joint motion of the Petitioner, Nancy Dorgan,
and the Respondent, Jefferson County, to dismiss the Petition for Review in this case. Joint
Motion to Dismiss the Petition with Prejudice, March 25, 2005. Petitioner filed her petition
for review on February 23, 2005. The petition challenges Jefferson County Ordinance No.
16-1213-04, adopted on December 13, 2004. Notice of adoption was published on
December 22,2004. Petition for Review, Paragraph 2.
RCW 36.70A.290(2) requires that petitions challenging the compliance of comprehensive
plans, development regulations and amendments to them be filed within 60 days of the date
of publication by the local legislative body. Petitioner filed her petition by mail, depositing
the petition in the U.S. mail on February 22,2005. However, the Board did not receive the
petition until February 23, 2005.
The Board's rules of practice and procedure provide:
The date of filing shall be the date of actual receipt by a board at its office. The date
stamp shall be presumptive evidence of the date of receipt.
WAC 242-02 240(1)
ORDER OF DISMISSAL
Case No. 05-2-0008
March 29, 2005
Page 1 of 2
LO~ ITErvi
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Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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Upon review of the rules noted above, Petitioner agrees that she did not comply with the
requirements for timely service of her petition for review and, jointly with the County, brings
a motion to dismiss the petition.
ORDER
Based on the joint motion of the parties in this case, the Board hereby DISMISSES the
petition for review and closes this case.
This is a final order pursuant to RCW 36.70A.300(5) and reconsideration pursuant to WAC
242-02-832.
Entered this 29th day of March 2005.
Margery Hite, Board Member
Holly Gadbaw, Board Member
Gayle Rothrock, Board Member
ORDER OF DISMISSAL
Case No, 05-2-0008
March 29, 2005
Page 2 of 2
LOG ITEfvl
Western Washington
Growth Management Hearings Board
90524th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
#
Page~.-1:~~O(~ ~3
BEFORE THE WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD
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21 Jefferson County is a lovely, productive, largely rural county with one incorporated city-
22 Port Townsend. It also has an area with a major concentration of pre-existing small lots in
23 the Irondale and Port Hadlock area. The County has long been grappling with the best way
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to plan for this region and has determined that the best course of action is to make it a non-
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26 municipal urban growth area (UGA). The sticking point is the ability of the County to serve
27 this area with urban governmental services. Of these urban services, providing public
28 sanitary sewer is the most difficult problem.
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IRONDALE COMMUNITY ACTION NEIGHBORS
and NANCY DORGAN,
CASE NO. 04-2-0022
Petitioners,
FINAL DECISION AND ORDER
v.
JEFFERSON COUNTY,
Respondent.
IRONDALE COMMUNITY ACTION NEIGHBORS,
CASE NO. 03-2-0010
Petitioner,
FINAL DECISION AND ORDER
v.
JEFFERSON COUNTY,
Respondent.
I.
SYNOPSIS OF DECISION
In 2003, the County set broad urban growth boundaries with the expectation that sewer and
other services could be provided to the entire area in phases during the 20-year planning
horizon. This Board found that the County could create a non-municipal UGA in the
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31,2005
Page 1 of 51
LOG ITEtJi
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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Page~2,_ 0(53.
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Irondale and Port Hadlock region but that the boundaries and the plan for that UGA were
non-compliant, in large part because there had not been adequate planning and funding
sources identified for urban services to the area.
On remand from the Board's August 22, 2003, Final Decision and Order, the County
diligently set about further capital facilities planning and analysis of funding sources. This
further work convinced the County that it could not, in the 20-year planning horizon for
comprehensive plans under the Growth Management Act (GMA), provide sewer service to
the entire UGA. Therefore, the County developed a plan that contemplates sewer service to
the commercial core of the new UGA, "optional" sewer service in those areas adjacent to
the sewer-served commercial core, and an "unsewered" area that is not planned to receive
public sanitary sewer service over the next 20 years. The County also adopted development
regulations to implement the plan for this new UGA. Petitioners timely challenged the
adoption of these comprehensive plan amendments and development regulations in
WWGMHB Case No. 04-2-0022.
After a thorough review of the record and consideration of the arguments of both sides, we
are compelled to find that the plan for the new UGA and its implementing development
regulations do not comply with the GMA because the County's capital facilities plan for this
area does not provide sanitary sewer throughout the new UGA over the 20-year planning
period. Also, the capital facilities plan for areas where commercial and industrial
development is allowed at urban densities fails to show firm funding for sewer service within
the next six years. A defined funding mechanism needs to be included in the capital
facilities plan before urban development is allowed. Public sanitary sewer service is a key
urban governmental service with important public health and environmental consequences,
and is essential to providing urban densities.
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 2 of 51
LOG 1'!'ErVI
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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At the same time, we must acknowledge the thorny problem facing the County. The County
has reasonably chosen to consider the existing small lots as "urban growth." The choice to
create an urban growth area which incorporates existing urban growth is also a responsible
one - but it must be accompanied by urban levels of service. Otherwise, new growth will
compound the existing problem.
The County and its staff have done impressive work to plan within the confines of their
funding capacities. We are struck, once again, with the high quality of the County's plans
and regulations. In addition, the County Commissioners have rolled up their proverbial
sleeves to do the hard work of planning for this area. Nonetheless, all their efforts lead to
the conclusion that most of the area cannot reasonably be served with sanitary sewer in the
next 20 years. The Board concludes therefore that the current UGA boundaries are not
appropriate for designation as an urban growth area.
We have also entered a finding of invalidity as to those parts of the comprehensive plan that
designate "unsewered" and "optional sewer" within the UGA, and as to those parts of the
development regulations that allow new urban levels of development without sewer service,
or an implementable funding plan for sewer service.
The invalidity findings do not reflect a determination that the violations here were
"egregious"; rather they reflect a concern that development applications could vest during
the period of remand which would interfere with the GMA goals, specifically those which
encourage urban growth with adequate urban services (Goals 1 and 12) and prevent sprawl
(Goal 2).
II. PROCEDURAL HISTORY
In our August 22, 2003, order in this case, the Board found the following:
Under the special circumstances faced by Jefferson County in this case, it is
appropriate to establish a non-municipal UGA in the Hadlock/lrondale portion of the
FINAL DECISION AND ORDER Western Washington
Case Nos, 04-2-0022 & 03-2-0010 Growth Management Hearings Board
May 31,2005 905 24th Way SW, Suite B-2
Page3of51 LOG ITEfvl Olympia,WA 98502
P,O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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Tri-Area. However, Jefferson County failed to comply with the Act when it officially
designated the UGA before completing its work of adopting urban level of service
standards, finishing required capital facilities planning (especially for sewer) and
fiscal analysis of affordability of those needed facilities, and developing development
regulations for application within the UGA (or tiers thereof).
In that order the Board expressed the following concern:
However, having carefully considered all of the County's arguments and
rationale, we remain concerned about the Tri-Area Final UGA being
designated before adequate capital facilities planning for sewer, including
fiscal analysis of the ability to provide those facilities, the setting of urban level
of service standards and the adoption of development regulations that are
ready for implementation in the UGA are completed. We agree with the
Petitioners that these steps must be completed prior to designation to ensure
that development within the UGA will be urban in nature, that the UGA will be
efficiently served with urban levels of service and that the County and its
citizens can meet the financial obligations required for these urban facilities
and services at the level of service adopted by the County.
Final Decision and Order (August 22,2003) at 26 and 27.
The County began work on its compliance efforts but was not able to complete its
compliance efforts by the originally scheduled due date. A compliance hearing was held
and the Board issued a Compliance Order on June 11, 2004, finding continuing non-
compliance and giving the County an additional 180 days to achieve compliance. That
Compliance Order extended the compliance deadline until December 7,2004.
On August 23, 2004, the County adopted Ordinance No. 10-0823-04. That ordinance
enacted amendments to the comprehensive plan for the non-municipal UGA, now called the
"lrondale and Port Hadlock UGA." The ordinance was published on August 25, 2004, and
on October 25,2004, Petitioners lrondale Community Action Neighbors and Nancy Dorgan,
filed their Petition for Review. Petitioners challenged the adoption of Ordinance 10-0823-04
in August of 2004 - General Sewer Plan for the UGA, the Transportation planning (Appendix
J to the comprehensive plan), the Stormwater Management Plan, May 2004 (Appendix K to
the comprehensive plan), an untitled consistency document, the size of the subject UGA,
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 4 of 51
LOG ITEM
# ,.,.-
Pag~~~Io._ ot~
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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protection of groundwater, provision of urban water supply by the Public Utility District
(PUD), the adequacy of the Future Land Use and Future Zoning Map, and the adequacy of
the development regulations for the subject UGA - all as non-GMA compliant and not
responsive to the terms of the Board's August 22, 2003 Final Decision and Order. The on-
going fiscal analysis-since June 2004--- of urban infrastructure and capital facilities was
challenged as an example of the lack of completeness and certainty that denotes the
comprehensive plan update. Further, Petitioners requested the Board find invalid any
portion of the ordinance appealed that may be found non-compliant and threatened to pose
substantial interference with the fulfillment of the GMA Goals 1, 2, and 5.
At the prehearing conference on November 22, 2004, there was agreement these two cases
would be tracked, for convenience and economy, but not consolidated. Petitioner stressed
that his client named some new matters of non-compliance in the UGA designation by
Respondent County in WWGMHB Case No. 04-2-0022. An adjudication schedule was set
allowing for coordinated briefing and hearings schedules, an amended issues statement,
index filing, the submission of Respondent County's Compliance Report in WWGMHB Case
No. 03-2-0010, and allowing for the proposal of any additions and supplements to the index.
On January 3, 2005, the Board was contacted about the parties' interest in entering into
settlement discussions. Such discussions then occurred between the parties in January.
The January 5, 2005, motions deadline was extended. On January 25, 2005, the parties
and presiding officer met in prehearing conference to ascertain settlement progress and
discuss the extension of the Final Decision and Order deadline to May 31,2005. The Final
Decision and Order deadline was extended. Settlement discussions, however, had failed.
Petitioner filed a dispositive motion on January 31,2005. Motion for Noncompliance and
Invalidity on the UGA Urban Development Regulations for the Irondale/Hadlock UGA.
Petitioners challenged Jefferson County Ordinance 10-0823-04 Section Three that adopted
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31,2005
Page 5 of 51
LOG ITEfVi
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
#
Page _4_ oC,g
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and implemented development regulations for the subject UGA, effective August 23, 2004.
Petitioners objected to the lack of available, planned, and financed sewer service for the
Irondale/Hadlock UGA and asked the Board to grant the motion and find the urban
development regulations invalid for substantial interference with Goal 12 of the Growth
Management Act (GMA). Petitioners contended the County will allow urban development
through the subject UGA without actually providing urban sewer service, in contravention of
Jefferson Countywide Planning Policy 2.1 and of the Board's Final Decision and Order on
August 22, 2003. Petitioner claimed that without a UGA sewer plan and a six-year capital
facilities plan and financing in place, urban growth would occur in the Irondale/Port Hadlock
UGA without adequate sanitary sewerage service. Petitioners expressed concern that
applications are vesting, allowing for urban densities and uses in the subject UGA without
adequate urban services being planned, financed, and in place in any part of the UGA.
On February 11, 2005, Jefferson County filed a response to ICAN's Dispositive Motion on a
Limited Record. The County argued there is no justification for granting a dispositive motion
prior to the Hearing on the Merits and asked that the Petitioners' motion be denied. The
county contended no egregious circumstances existed which would warrant a finding of
invalidity at this time. Further, the county pointed to its diligent efforts to achieve
designation of an appropriate UGA for the Irondale/Port Hadlock area for ten years or more,
and believes it has endeavored to comply with the Board's August 22, 2003 order on
WWGMHB Case No. 03-2-0010. On March 2, 2005, the Board issued an Order Denying
the Motion and determined the issues would be carried forward to the Hearing on the Merits.
The motion involved an extensive record and was not appropriate for resolution without full
briefing and a more thorough review of the record. On March 2, 2005, the Board issued an
order denying the motion and determined the issues would be carried forward to the
Hearing on the Merits. On March 11, 2005, an Order on Motions Requesting Additions and
Supplements to the Index was issued. This reserved final ruling on some proposed items
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 6 of 51
LOG "'rr.:r."
I ,,_,VI
Western Washington
Growth Management Hearihgs Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
#
Page_~.B__OfS-:3
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until the Hearing on the Merits. In March and early April the normal hearing briefings
schedule was observed and met.
Throughout the case proceedings Petitioners Irondale Community Action Neighbors[ICAN]
and Nancy Dorgan were represented by attorney Gerald Steel, PE. Attorney for respondent
Jefferson County was Mark R. Johnsen of Karr, Tuttle, Campbell. Jefferson County Civil
Deputy Prosecuting Attorney David Alvarez assisted with advocacy and advice for
Respondent County.
The Hearing on the Merits occurred on April 18, 2005 in Olympia. All three board members
participated. At the Hearing on the Merits, employees of the County's Community
Development Department and Public Works Department and engineering contractors to the
County appeared, at the request of respondent's attorney were also present. The Presiding
Officer invited attorneys for parties to file simultaneous post-hearing briefs on April 27,2005.
Each party filed such a brief. In addition, Jefferson County filed Respondent's Statement of
Additional Authority on May 9, 2005.
INDEX/EXHIBIT RULINGS
Respondent County's proposed Index item and Exhibits numbered 1002 and 1003 were
admitted. Proposed item number 1001 was not admitted.
Proposed supplemental item, Exhibit 16-282, offered by Petitioners is official record of the
Respondent County. An April 14, 2005, legal notice in the local newspaper, proposed
Exhibit 16-297, was also offered by Petitioners. The Board took judicial notice of both of
these items. Petitioners' proposed Exhibit 16-296, a Jefferson County permit case summary
of certain activity listings ranging from August 2004 through January 2005 and selections
from the County's permit file on a subject area project proposed by the Community
Methodist Church, was admitted.
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31,2005
Page 7 of 51
LOG ITF!' .~
, . __.,VI
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
#
Page_~~ '.of.t;';
1 In its Posthearing Brief in Support of Noncompliance and Invalidity, Petitioners requested
2 the Board admit three black and white enlargements of already-admitted exhibits: Exhibit
3 13-31 shows the zoning for the subject UGA as adopted. An enlargement would show it
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better to the human eye. It is labeled Exhibit 16-298 and is admitted and will be given the
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6 weight it is due. Petitioner also proposed a two-foot by three-foot version of the plat map for
7 the subject UGA. The ordinary-sized plat map is an official record of the County on file in
8 the Assessor's Office. The enlarged plat map is labeled Exhibit 16-299 and the Board takes
9 judicial notice of it, as requested. Proposed Exhibit 16-300 contains an index page and
10 pages A to E. Depicted on these pages are portions of plat maps from the Assessor's
11 Office that show the dimensions of platted lots that correspond with the letters A to E. As
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13 requested, the Board takes judicial notice of these county records depicting dimensions of
14 platted lots in the UGA.
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IV. ISSUES PRESENTED
1. Does the processing and adoption of the Ordinance comply with RCW
36.70A.020(11), .035, .040, .070 (preamble), .130(1)(b), .140 and .210 {the adopted
County-wide Planning Policies (CPP)}?
2. Do the CP amendments and development regulations amendments made by
the Ordinance comply with RCW 36.70A.020(1), (2), (5), (6), (10), and (12), and .130(1)(b)
regarding: .070 (preamble), (1), (2), (3), (4), and (6), .100, .110(3) and (4), .115, .150, and
.210(1) ?
3. Did the County allocate a proper amount of commercial/industrial development
to the unincorporated subject UGA, consistent with RCW 36.70A.020(1), (5), (6), and (12),
and .130(1)(b) regarding: .070 (preamble), (1), (3), (4), and (6), .110(2), .115, .150, and
.210? Did the County comply with these terms of the GMA when it allowed the expanded
commercial designation and zoning in the subject UGA?
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31, 2005
Page 8 of 51
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
LOG ITFfvl
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4. Do the Comprehensive Plan and development regulations properly size the area
and intensity for build-out of urban commercial/industrial development in the unincorporated
subject UGA, consistent with GMA provisions listed in Issue 3?
5. Has the County set adequate urban levels of service for public facilities and
services for the unincorporated subject UGA, consistent with RCW 36.70A020(1), (2), (5),
(6), and (12), and .130(1 )(b) regarding: .070 (preamble), (1), (3), and (6), .110(2), and (3),
.115, .150, and .210?
6. Do the Comprehensive Plan and development regulations ensure that the
urban facilities and services necessary to support development in the unincorporated
subject UGA will be adequate to serve that development at the established urban levels of
service at the time of occupancy, consistent with the RCW 36.70A020(12)?
7. Has the County adequately implemented transportation concurrency
requirements for the unincorporated subject UGA, consistent with RCW 36.70A .070(6)(b)?
8. Because the County does not currently supply all urban facilities and services
in all parts of the subject unincorporated UGA, is the phased growth in the subject
unincorporated UGA consistent with RCW 36.70A020(1), (2), (5), (6), and (12), and
.130(1)(b) regarding: .070 (preamble), (1), (2), (3), (4), and (6), .110(1), (2), and (3), .115,
.150, and .210?
9. Did the County use a proper 20-year horizon for UGA planning consistently
throughout the adopted Comprehensive Plan, development regulations, and capital facility
planning and fiscal analysis in the unincorporated subject UGA that is also consistent with
RCW 36.70A020(6), and .130(1)(b) regarding: .070 (preamble), .100, .110(2), .115, and
.210?
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 9 of 51
LOG ITEf\fj
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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10. Is the County's capital facility and fiscal planning for urban water service,
sewer service, and transportation services in the unincorporated subject UGA adequate and
consistent with RCW 36.70A.020(1), (2), (5), (6), (10), (11), and (12), and .130(1)(b)
regarding: .070 (preamble), (1), (2), (3), (4) and (6), .100, .110(2) and (4), .115, .150, and
.210?
11. Is the County's capital facility and fiscal planning for urban facilities and
services besides water, sewer, and transportation in the unincorporated subject UGA
adequate and consistent with RCW 36.70A.020(1), (2), (5), (6), (10), (11), and (12), and
.130(1)(b) regarding: .070 (preamble), (1), (2), (3), and (4), .110(2) and (4), .115, .150, and
.210?
12. Has the County adequately provided for transformance of governance in the
provision of adequate urban water supply in the unincorporated subject UGA, consistent
with RCW 36.70A.110(4)?
13. Are there adequate descriptions of building intensities and densities for the
unincorporated subject UGA in the land use element of the CP and that are appropriately
implemented in the development regulations? Are these consistent with RCW
36.70A.130(1)(b) regarding .070 (preamble), and (1)?
14. In implementing the unincorporated subject UGA, has the County provided for
protection of the quality and quantity of ground water used for public water systems to serve
the UGA in a manner consistent with RCW 36.70A.020(5) and (10), and RCW
36.70A.130(1)(b) regarding .070(1) and 210?
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31, 2005
Page 10 of 51
LOG ITEfVl
# --.
,.-----,-,_. ,--
Page.l..l-__ of 'J 5
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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15. Are the amendments to the Comprehensive Plan internally consistent, as
required by RCW 36. 70A.130(1 )(b), regarding RCW 36. 70A.070(1)?
16. If any portion of the Ordinance is found not to comply with the Act in the issues
presented above should these Ordinance sections be found invalid under terms of RCW
36.70A.302 for substantial interference with the fulfillment of Goals 1, 2, 5, 6, 9, 10, 11,
and/or 12?
V. BURDEN OF PROOF
This case involves both a compliance matter and a new Petition for Review.
Comprehensive plan amendments made and development regulations adopted in response
to a finding of non-compliance are presumed valid. RCW 36.70A.320 In determining a
decision on Jefferson County's compliance with the GMA in WWGMHB Case No. 03-2-0010
in response to the Board's Order finding non-compliance, the Petitioner has the burden of
proving the County's action was clearly erroneous in view of the entire record and in light of
the goals and requirements of the GMA. RCW 36.70A. 320(3); ICCGMC v. Island County,
WWGMHB Case No. 98-2-0023 (Compliance Order, November 26, 2001). An action is
clearly erroneous if the Board is left with a firm and definite conviction that a mistake has
been made.
In the decision on the issues presented in the new petition (WWGMHB Case No. 04-2-
0022), Petitioners also bear the burden of proof. Comprehensive plan amendments and
development regulations, and amendments to them, are presumed valid upon adoption.
RCW 36.70A.320(1). To meet their burden Petitioners must show that the Respondent
County's enactments at issue are clearly erroneous:
The board shall find compliance unless it determines that the action by the
state agency, county, or city is clearly erroneous in view of the entire record
before the board and in light of the goals and requirements of this chapter.
RCW 36.70A.320(3)
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31, 2005
Page 11 of 51
LOG ITErvl
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
#
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In order to find the Jefferson County's action clearly erroneous, the Board must be "left with
the firm and definite conviction that a mistake has been made." Department of Ecology v.
PUD 1,121 Wn.2nd 179, 201, 849 P.2d 646 (1993).and Achen v. Clark County, WWGMHB
Case No. 95-2-0067. Thus, we review the compliance action and the challenges under the
new Petition for Review under the clearly erroneous standard.
VI. DISCUSSION
In the final decision issued in WWGMHB Case No. 03-2-0010, we found that the County
could create a non-municipal UGA in the Irondale and Port Hadlock area to reflect the urban
growth that had already vested there. However, we found that the County had not met the
requirements for a non-municipal UGA before formal designation of a UGA. Thus, the
sufficiency of the infrastructure planning as well as the boundaries of the non-municipal
UGA was found non-compliant. 1 Final Decision and Order (August 22, 2003) at p. 15.
The challenges in this case can be grouped into five categories:
· challenges to the sufficiency of planning for urban levels of sewer, transportation and
other services within the non-municipal UGA;
· challenges to the densities and intensities established within the UGA;
· inconsistencies alleged between the new comprehensive plan amendments and
development regulations and other County planning policies and regulations;
· miscellaneous challenges to the procedures incorporated within the new amendment
and development regulations; and
. the request for imposition of invalidity.
1 Ordinance NO.1 0-0823-04 recites that the WWGMHB found the Irondale/Hadlock UGA boundary
"appropriate" but that characterization is not wholly accurate. The Board reserved the issue of the UGA
boundaries until after the capital facilities and other planning is complete.
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 12 of 51
LOG larF~'"
,,_,VI
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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A. Urban levels of Governmental Services
Petitioners raise challenges to the adequacy of the County's planning for urban levels of
service provided for the lrondale and Port Hadlock UGA. Petitioners argue that the UGA
boundaries must be set in accordance with urban levels of governmental services and that
the County's plan fails to meet this requirement. These issues fall into three major
categories: sewer planning; transportation planning; and miscellaneous other infrastructure
concerns. Sewer service to the new UGA is chief among these concerns and we will
address it first.
1. Sewer Plannina - Petitioners first challenge the comprehensive plan amendments that
create the new UGA and argue that the County has not done sewer planning for most of the
designated urban growth area (UGA). ICAN's Opening Brief at 2. Petitioners contend that
the County's plan for sewer in the new UGA lacks a forecast of future needs, proposed
locations of future facilities, a six-year financing plan, and a plan to serve the entirety of the
UGA within the 20-year planning period for the comprehensive plan. Ibid at 2-3. This,
Petitioners allege, fails to comply with RCW 36.70A.070(3), which mandates those features
as part of the capital facilities element of a comprehensive plan. Petitioners point out that
there are no existing sewer facilities in the new UGA and argue that the plan contains
nothing but a very general concept for a providing sewer service; the sewer plan offers four
alternatives for treatment and concept level cost estimates and financing options but no
commitment to any of the options for treatment or financing. Ibid at 3-4.
The County responds that it is not required to plan to serve the entire UGA with sewer
service in the 20-year planning horizon. Respondent's Prehearing Brief at 10. The County
argues that it is not a violation of the GMA to allow portions of a UGA to be served by on-
site septic systems in an area of many pre-existing lots and no public health considerations
to prevent the use of on-site septic systems. Ibid at 6-7. The unsewered area of the UGA is
already full of vested lots at urban densities, the County asserts, and these are allowed to
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31,2005
Page 13of51
LOG ITErvl
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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develop at a density of 3.5 dwelling units per acre in accordance with the County's public
health regulations regarding on-site systems. Under these circumstances, the County
believes it is not clearly erroneous to allow the interim use of on-site septic until a sewer
system is fully operational, when other urban services are available. Ibid. The County cites
previous statements of the Board in regard to this area and Abenroth v. Skagit County,
WWGMHB Case No. 97-2-0067c in which contends the Board allowed for interim use of
septic on one-acre parcels until sewer was available. Respondent's Prehearing Brief
(April 1, 2005) at 7 and 8.
We begin our analysis by noting that the County has changed its position with respect to
providing for sewer service in the new UGA. At the first hearing on the merits, the County
represented that it planned to phase sewer service during the 20-year planning horizon,
throughout the new UGA. Final Decision and Order, August 22, 2003. It was also an
express understanding that the County would not allow urban levels of development in the
new UGA until sewer and other urban services could be provided. In fact, the Board
commended the County for keeping its rural development regulations in place while it
completed its sewer planning:
The County has also responsibly put in a proviso that until work to determine
how urban service will be provided is completed, the rural development
regulations will apply. Thus, the County is not encouraging urban
development until urban services are available.
Final Decision and Order (August 22, 2003) at 13.
Because the County was not allowing urban development until urban services including
sewer is provided, the Board declined Petitioner's request for an imposition of invalidity.
The Board also understood that one of the primary motivators for the establishment of the
Irondale and Port Hadlock UGA was the proliferation of development on small lots in this
area that could lead to potential public health problems that sewers could prevent. The
Board noted the following:
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 14 of 51
LOG ITErvi
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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We agree with the County that it makes more sense to plan to serve this
community in an urban manner. By doing this, the County is making an
ecologically responsible choice to provide urban services to an area of higher-
than-rural densities rather than to allow it to develop permit-by-permit in a way
that is dependent upon essentially rural levels of service. As the County says,
it is being proactive and is managing growth (the Act's intent) instead of
burying its head in the potentially septic-waste-ridden sand. We agree that
this approach complies with the GMA
Final Decision and Order (August 22, 2003) at 14.
The County may, of course, change its strategy as it strives to achieve compliance.
However, it is important to acknowledge that this is a change and that the Board's earlier
order relied upon the County's original plan.
a) We are therefore addressing for the first time the County's decision to establish non-
municipal UGA boundaries that include areas for which no public sewer is to be provided in
the 20-year planning horizon. Petitioners claim that this violates RCW 36.70A070(3)
(requirements of the capital facilities element) and RCW 36. 70A11 0 (requirements for
urban growth areas). We agree.
Urban growth areas are designated lands which will contain "areas and densities sufficient
to permit the urban growth that is projected to occur in the county or city for the succeeding
twenty-year period." RCW 36.70A110(2). "Urban growth" makes intensive use of land for
buildings, structures and impermeable surfaces. RCW 36.70A030(17). Every city must be
contained in an urban growth area. RCW 36. 70A11 0(1). A primary goal of the GMA is the
encouragement of development in urban areas where adequate public facilities and
services exist or can be provided in an efficient manner. RCW 36. 70A020(1) (Goal 1 of the
UGA). Non-municipal UGAs, that is, UGAs that do not contain cities, are closely scrutinized
to ensure that they do not contribute to sprawl but are planned to provide urban levels of
service to populations and uses at urban densities. Because non-municipal UGAs may
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 15 of 51
LO.G'ITF(111
I, ,._,VI
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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allow an extension of urban growth to areas that do not already have a governmental
structure for the provision of urban levels of service, it is important to have a plan for the
provision of urban services to the entire non-municipal UGA. If this cannot be done, the
boundaries of the non-municipal UGA are likely too large.
This principle is embodied also in guidance provided to local governments by the
Department of Community, Trade, and Economic Development:
The capacity of water and sewer represents an important consideration
affecting development. The GMA requires that you must be able to provide
adequate facilities and services before permitting development. Although
capital facilities can be expanded, you will need to consider the cost-
effectiveness of doing so and the appropriateness relative to community
goals. If it will not be feasible to expand or extend a facility and finance the
necessary improvements, the land use plan will need to be adjusted
accordingly. For this reason, you must work back and forth between your
land use analysis and your analysis of capital facility and transportation
needs.
Preparing the Heart of Your Comprehensive Plan, A Land Use Element Guide, Washington
State Department of Community, Trade and Economic Development (1993) at 20 and 21.
Here, Respondent County has adopted comprehensive plan amendments for the lrondale
and Port Hadlock UGA that allow urban development with three different levels of sewer
service:
. sewer service in areas of high density residential and commercial or industrial zones;
· optional sanitary sewer service to areas which are adjacent to sewer service areas;
. and unsewered areas. Exhibit 13-37 at 2-14.
This scheme allows urban levels of development without corresponding urban levels of
sewer service.
Respondent County argues that it is providing most services at urban levels and that interim
use of septic systems is acceptable if other urban services are in place. Respondent's
Prehearing Brief at 8. The County relies upon the Board's decision in Abenroth v. Skagit
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31, 2005
Page 16 of 51
I o.r' 'Tei\,;'
- \j I, ,_,vI
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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County, WWGMHB Case No. 97-2-0060c (Final Decision and Order, January 23, 1998) for
this proposition.
However, the facts in Abenroth are different from those here. In that situation, the UGAs in
question were municipal UGAs and the questioned area was expected to become part of a
city, where a city would provide the urban services. Also, Skagit County's development
regulations provided that either: there could not be development above one dwelling unit per
5 acres until sewer was provided; or a portion of the platted lots up to one acre could be
"used" for development utilizing a well and on-site system, if the land was platted to ultimate
urban densities and provided with all transportation and utilities at urban standards and if
the applicant promised to connect to sewer when it was available.2
The Irondale and Port Hadlock UGA, on the other hand, lacks any sewer service today.
Since it is not associated with any city, the new UGA would have to be served through the
County. However, the County has no existing capacity to serve any part of the new UGA
with sewer, although it has been researching the options very carefully.
Conclusion 1.a): Public sanitary sewer is a key urban governmental service. See RCW
36.70A030(19). Creating a non-municipal UGA to acknowledge pre-existing growth is only
responsible if urban levels of service are provided within that non-municipal UGA Under
these circumstances, the creation of the UGA boundaries to include large areas for which
no public sewer can reasonably be provided in the 20-year planning horizon does not
comply with RCW 36. 70A11 o.
2 In regard to commercial and industrial development, the Board found that Skagit County's phasing plan for
commercial and industrial development did not comply with RCW 36. 70A.11 0 (3). The Board found that
before it could find compliance that interlocal agreements with cities, ensuring that growth and development of
commercial and industrial uses are timed, phased, and efficiently provided with services, must be in place and
enforceable See Abenroth v. Skagit County, Case No. 97-2-0067c (Final Decision and Order, January 23,
1998)
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31, 2005
Page 17 of 51
lOG rrFr::;
,_"VI
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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b) In addition, the capital facilities element of the County's land use plan is required to plan
for capital facilities needs and funding. RCW 36.70A.070(3) requires the following for
capital facilities elements:
(a) An inventory of existing capital facilities owned by public entities, showing
the locations and capacities of the capital facilities; (b) a forecast of the
future needs for such capital facilities; (c) the proposed locations and
capacities of expanded or new capital facilities; (d) at least a six-year plan
that will finance such capital facilities within projected funding capacities
and clearly identifies sources of public money for such purposes; and (e) a
requirement to reassess the land use element if probable funding falls
short of meeting existing needs and to ensure that the land use element,
capital facilities plan element, and financing plan within the capital facilities
plan element are coordinated and consistent...
RCW 36.70A.070(3)
In Jefferson County's situation in this case, the County is the sewer provider. Therefore, its
capital facilities plan must give assurance that the extension of urban services will actually
be available prior to permitted urban levels of development. In addition, development must
not be permitted in a manner which will preclude future urban densities and uses. Where
urban levels of development have not been permitted until sewer is available, the Board has
found the use of interim on-site septic systems compliant with the RCW 36. 70A.11 O.
However, when we examine Jefferson County's six-year capital facility plan and the General
Sewer Plan (GSP) that supports its Urban Growth Area Element, we find that these
conditions do not exist. Several difficult technical and political decisions still need to be
made to make the provision of sewers a reality. The capital facilities section of the Urban
Growth Element has a generalized capital facilities plan that has cost estimates, but no
choices about what specific sources of funds will be used or the distribution of costs among
the County's general fund, loans and grants, and user fees. Exhibit 13 - 37 at 2 - 15.
The County states the GSP is the first step required of the County for a wastewater
treatment system. It is a requirement of WAC 173-240-050(2) to be sufficiently complete
that engineering reports can be developed without substantial alteration or basic
consideration. The County maintains that the GSP contains the locations for the proposed
FINAL DECISION AND ORDER Western Washington
Case Nos, 04-2-0022 & 03-2-0010 Growth Management Hearings Board
May 31,2005 I OG 'l~t:, ~f\,i~ 905 24th Way SW, Suite B-2
Page 18 of 51 -' !,_ ,\ofl Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
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facilities for conveyance and treatment for several alternatives. The County also says that
cost estimates have been included for the alternatives and various financing scenarios are
outlined including a Limited Improvement District (LID) and several different ways to
distribute the costs between rates and system development charges. Jefferson County's
Compliance Report (December 17, 2004) at 5 and 6.
When we look at the GSP the Board finds that the GSP contains some, but not all the
necessary components for a compliant capital facilities element for the provision of sewer
service. The GSP contains a forecast of future needs for capital facilities and the proposed
general locations for future conveyance facilities, but not their capacities. While the plan
designates a preferred alternative from four alternatives for sewage treatment and identifies
those locations, no decision has been made on the alternative so no definite location for
sewage treatment is contained in the GSP. Likewise, while the GSP discusses outside
funding sources generally, makes some assumptions about how much of the facilities
certain sources could fund, and presents various alternatives for distributing the costs
among the users of the proposed system, the County has not selected a method for
financing the sewer system. The Board recognizes that the County has proceeded
appropriately with its sewer planning and has laid the groundwork for necessary future work.
However, the present capital facilities plan fails to comply with the GMA requirements for
sewer to the Irondale and Port Hadlock UGA.
Conclusion 1.b): The most glaring deficiencies of the sewer plan are the fact that a
treatment option has not been selected, which is integral to determining the final costs to
develop a final funding mechanism, and an agreed upon six-year financing plan. Even
though the County requires new development in the future sewer service area to connect to
the future sewer system, we fi,nd that deficiencies in the County's capital facilities plan fail to
comply with the Board's August 22,2003 Compliance Order and RCW 36.70A.070(3) (a) (c)
and (d). They do not give the necessary assurance that sewers will actually be provided.
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 19 of 51
LOG ITFfVl
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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c) Petitioners next argue that Respondent County should not have adopted development
regulations that implement the UGA without an adequate sewer plan. Petitioners maintain
that the County's general sewer plan (GSP) does not offer adequate assurance that urban
services will be available at the time of occupancy. Petitioner cites the Board's August 22,
2003 decision in this case, where the Board commended the County for keeping its rural
regulations in place while it developed its sewer plan. Petitioners also cite the portion of the
Final Decision and Order where the Board described how compliant phasing should be
implemented. ICAN's Reply Brief in Support of Noncompliance and Invalidity (April 13,
2005) at 5.
Respondent County argues that even though the newly adopted development regulations
allow urban intensities, development at this scale will not happen, because the County's
health department regulations will restrict the intensity and densities allowed due to the use
of an interim septic. The County says that allowing for urban densities is appropriate for
commercial and industrial designations, because the County requires these applicants to
sign an agreement that they will connect to the sewer when it is available, and this is an
area where the County plans to have sewer available within the next six years. Further, the
County projects that the risk of large commercial structures occurring without the guarantee
of sewer is slight since applicants for those developments would not want to install interim
septic systems and then connect to the sewer system.
The plan's enforcement is set out in the County's Uniform Development Code (UDC). The
code requires that within the sewer service area that development must connect to the
sewer when it is available, with the caveat that interim on-site septic systems in commercial
and industrial areas will not be prohibited in this UGA, unless there is a sewer system which
has capacity to accommodate the proposed development. Exhibit 13 - 32 at 21.
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 20 of 51
LOG ITFfvi
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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Conclusion t.c): Instituting urban development regulations before the development of a
compliant capital facilities plan will either preclude eventual future development at urban
densities in the UGA when sewer is available, or permit densities that constitute sprawl. We
understand the County's desire to establish this UGA to realize its legitimate economic
development goals and its investment spent in years of planning for this area.
Nevertheless, we cannot find the County's urban development code compliant or valid, until
they have completed a compliant capital facilities plan. Development regulations that
implement a non-compliant capital facilities plan do not themselves comply with RCW
36.70A.040, 36. 70A.11 0(3), 36. 70A.020(1), (2) and (12).
d) Petitioners also contend that the comprehensive plan amendment and development
regulations are inconsistent with Countywide Planning Policies (CWPPs) 1.3 and 1.5.
Petitioner argues that Policy 1.3 requires that land within a non-municipal UGA must either
be served by sewer or planned to be served by sewer. Policy 1.5 provides for tiers for
sewer provision that includes all tiers receiving "the full range of urban services within 20
years." Petitioner argues that for the County's comprehensive plan to be consistent with this
policy the required sewer planning must be in the comprehensive plan's capital facility
element and must ensure all tiers receive sewer service. Petitioner maintains that there are
sewer facilities listed in the capital facilities element and no amendments to the plan that
show required sewer planning for all parts of the UGA.
In regard to Petitioner's arguments concerning inconsistency of the County's sewer planning
efforts, the County responds that the County's existing planning documents reflect that
sewer construction will be under way within six years. The County maintains that CWPPs
provide general guidance and that the County has done sufficient planning to satisfy the
guidance in the CWPP.
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 21 of 51
LOG ITEfvl
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Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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CWPP lists criteria for designating urban growth areas, but does not include a time frame for
delivery of sewer service. However, CWPP 1.5 does delineate two tiers, the first tier
receiving sewer service within the six year capital facilities plan and the second tier within 20
years. CWPP 2.1 says that UGAs will have a full range of urban services over 20 years and
lists sewer service as one of these services.
Conclusion 1.d): The Board concludes that CWPP 1.3 is in fact a general policy as the
County argues. However, CWPP 1.5 specifically requires a full range of urban services and
CWPP 2.1 defines those as including sewer service. As described above, the County's
capital facilities plan and the County's UGA Element do not show plans to serve the
northern residential part of the UGA with sewers over the next 20 years. Therefore, we find
that the County's comprehensive plan's UGA Element, that includes a capital facilities
element, is not consistent with CWPP 1.5 and therefore with RCW 36.70A210.
2. Transportation Planninq
a) Levels of Service (LOS) standards - Petitioners argue that the LOS for transportation for
the UGA set by UGA P.2.6(d) fails to explicitly apply the standard to road intersections.
Petitioner says that this does not comply with RCW 36.70A070 (6)(b) and (c). ICAN's
Opening Brief at 11, 12.
Respondent County replies that the GMA does not require LOS standards to be directed at
intersections, and that RCW 36.70A070 (6)(b) and (c) requires LOS standards for locally
owned arterials. Respondent's Prehearing Brief at 14.
The Board agrees with Respondent County. RCW 36.70A070(6)(a)(iii)(B) requires LOS for
all locally owned arterials and transit routes to serve as a gauge for their performance.
RCW 36.70A070(6)(a)(iii)(C) requires levels of service for state-owned transportation
facilities for the purpose of measuring their performance. For locally owned arterials, the
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31, 2005
Page 22 of 51
LOG ITFt.Jl
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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County has discretion on how they choose to describe the LOS as long as it describes this
in their comprehensive plan and use their description to measure LOS. For state-owned
facilities, highways of state-wide significance are set by the state. For other state-owned
highways the local government and the state work together to set the LOS.
Conclusion 2.a): Petitioners have not sustained their burden of proof pursuant to RCW
36.70A.320(2).
b) Error in traffic analysis on SR-19 from Irondale Road to Four Corners - Petitioners
contend that the County failed to accurately report that existing traffic on the SR-19 from
Irondale Road to Four Corners does not meet the current LOS standard D for UGAs.
Petitioner says that the County averaged the traffic for the road segment within the UGA
that operates at LOS E with rural road segments north of Four Corners that have
substantially less traffic. Petitioner asserts that this does not comply with RCW
36.70A(6)(a)(iii). ICAN's Opening Brief at 12 and 13.
The County responds that the road segment that ICAN contends is operating at LOS E is .3
of a mile long. Half of the road section is located in the UGA, and not representative of the
SR 19 from lrondale to the SR 20 intersection. The County maintains that a more accurate
way to analyze conditions along SR 19 is to use the entire segment rather than the
challenged section due to its short length and the short amount of time it operates at LOS E.
Respondent's Prehearing Brief at 16 and 17.
Conclusion 2.b): Although Petitioners request the Board to order the County to accurately
report the existing traffic in the UGA north of Four Corners using Petitioner's analysis, they
fail to show how RCW 36.70A.070 (6)(a)(iii) gives the Board that authority. Petitioner has
not sustained its burden of proof pursuant to RCW 36.70A.320(2).
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 23 of 51
LOG rJ'Fr, ~
, ,_.VI
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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c) Failure to show work in regard to transportation projections - ICAN argues that the
County has not shown its work for the assumptions that it used to perform its traffic analysis.
Petitioner contends that the traffic projections reflect inaccurate assumptions for
development that will occur in the UGA because they did not reflect the ultimate intensities
allowed by the County's development regulations. The development regulations allow for
high concentrations of office and commercial development. Petitioners argue that this is the
type of development that traffic projections should reflect. Petitioner also points out that the
County has made a mathematical error, which should be corrected. ICAN's Opening Brief
at 16 - 18.
Respondent County contends that Petitioner failed to appreciate the County's methodology.
The County explains that the traffic projections were based on intensities of development
that actually are likely to happen given Jefferson County's low population density. The
County says that Petitioner gave no rationale for its assumption that half the commercial
development will be at high intensity uses. The County maintains that its methodology for
traffic projections is not clearly erroneous. Respondent's Prehearing Brief at 18 - 21.
The County clearly lays out its assumptions for its traffic projections in its Transportation
Element. Exhibit 13-35 at 2 - 6 - 2 - 9. The Transportation Element reflects the Capital
Facilities Element assumption that sanitary sewer will not be available in the UGA until
2011. RCW 36.70A070(6)(a)(i) requires the County to include its assumptions in its
transportation element and base its traffic forecasts on its land use plan (RCW 36.70A070
(6)(E). The County has included a clear rationale for why its assumptions about the
intensities allowed in its development regulations will not likely occur.
Conclusion 2.c): We agree with the County that its methodology is not clearly erroneous or
noncompliant with RCW 36.70A070(6). The County has acknowledged that a
mathematical error was made in making the projections and that it has been corrected. The
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31,2005
Page 24 of 51
LOG ITFM
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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County has offered to correct such errors and we agree that the County should have the
opportunity to correct its minor errors. Since this is being returned for compliance, the
Board reserves any non-compliance finding on minor errors such as this until the County
has had an opportunity to make its own corrections. We expect that the County will show us
its corrections at the next compliance briefing. If the County does not make the corrections
of identified minor errors, Petitioners may raise them at the next compliance hearing.
d) Definition of Chimacum and Port Hadlock Intersections - ICAN asserts that the
identification of two intersections as simply Chimacum and Port Hadlock is inadequate for
public review. ICAN's Opening Brief at 18
The County objects to including this issue as "silly" and "frivolous." The County says that
this intersection is the only intersection in the Port Hadlock area and commonly referred to
as the Port Hadlock intersection. Likewise, the County maintains that Exhibit 13-35 at 2-13
describes this Chimacum Intersection as being between Chimacum Road and Center Road.
Respondent's Prehearing Brief at 22.
Conclusion 2.d): We agree with the County's characterization of this issue and that the
intersections are adequately described. Petitioner has not sustained its burden of proof
pursuant to RCW 36. lOA320(2) that public participation was hindered by these
descriptions.
e) Concurrency Ordinance - ICAN argues that TRP 1.10 allows urban road standards only
to be optionally applied to development in the Irondale and Port Hadlock UGA Petitioner
contends that the RCW 36. lOAOlO requires urban road standards be established in the
UGA and enforced by a concurrency ordinance and that the County does not have a
concurrency ordinance. Petitioner argues that TRP 4.10 only states that the County "should
not" approve new development that does not meet concurrency requirements while RCW
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 25 of 51
LOG rrFfvl
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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36.70A(6)(b) requires the County to "prohibit" such development. ICAN's Prehearing Brief
at 18, 19.
The County responds that TRP 1.10 commits the County to applying urban road standards
but gives it the flexibility to use professional engineering judgment where instances of
providing urban facilities may not be appropriate. The County argues that a stand alone
concurrency ordinance is not required and UDC 6.2.5 fulfills RCW 36.70A070(6)(b)'s
requirement. Further, the County contends that RCW 36.70A070(6)(c) specifies that the
Transportation Element of comprehensive plans must be consistent with transportation
improvement plans, which do not identify any transportation deficiencies. Therefore, the
County argues, there are no concurrency issues. Respondent's Prehearing Brief at 22, 23.
RCW 36.70A070(6)(b) requires the following:
After adoption of the comprehensive plan by jurisdictions required to plan or
who choose to plan under RCW 36.70A040, local jurisdictions must adopt and
enforce ordinances which prohibit development approval if the development
causes the level of service on a locally owned transportation facility to decline
below the standards adopted in the transportation element of the
comprehensive plan, unless transportation improvements or strategies to
accommodate the impacts of development are made concurrent with the
development. . .
RCW 36.70A070(9)(b)
As to Petitioner's contention that TRP 4.10 is not consistent with RCW 36.70A.070(6)(b), we
note that the key place for the required prohibition of development approval is in the
development regulations. Development regulations that implement the comprehensive plan
must prohibit development that causes the LOS to decline below locally adopted standards.
The challenged TRP is a comprehensive plan policy, rather than a development regulation.
While it might be better if TRP 4.10 were more prescriptive, RCW 36.70A070(6)(b) does not
require this of a comprehensive plan policy, but of development regulations.
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 26 of 51
I OG ITl=f\1l
'- ' . ,-l\ii
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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The County argues that it has a concurrency ordinance which suffices for the new non-
municipal UGA. However, the existing concurrency ordinance does not link permitting
development to the County's LOS.
We agree with the County that the County does not need a stand alone concurrency
ordinance as long as it has regulations that do not permit the LOS on locally owned facilities
to decline below the County's locally adopted LOS. A regulation such as TRP 6.1.2 would
be acceptable if it linked its requirements to the County's levels of service. However, it
does not link development approval to the maintenance of current County levels of service.
Conclusion 2.e): We understand why the refinement of the County's concurrency
requirements has not been a high priority for the County. The Transportation Element of the
Irondale-Hadlock UGA indicates that at the level of development forecasted in the next six
years no LOS deficiency is predicted and the County's established LOS will be maintained.
Nevertheless, the Board cannot waive the requirements of RCW 36.70A.070(6)(b). We find
that Policy 1.10 does not comply with RCW 36. 70A.070(6)(b) without a concurrency
requirement that links transportation improvements and development approval to
maintaining the County's LOS.
f) Stormwater Planning - ICAN argues that the Stormwater Section of the UGA Element
fails to project the six year funding plan required by RCW 36.70A(3)(d). ICAN's Opening
Brief at 10.
The County responds that the UGA Element summarizes data in the UGA Stormwater
Management Plan adopted by Ordinance 10-0823-04. Exhibit 13-22. The County
maintains that the UGA Element clearly references this plan that includes six-year project
projections. Respondent's Prehearing Brief at 13.
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31,2005
Page 27 of 51
LOG 'T!=(\ II.
I, ,....ivl
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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Conclusion 2.f): We agree with the County. Our examination of Exhibit 13 - 22 shows that
the County has clearly referenced the UGA stormwater plan. This plan includes 6-year
project and funding sources. The plan actually covers 2005 - 2024. Exhibit 13-32 at 8-9.
The UGA Element with this clear reference to work that is compliant with RCW
36.70A.070(3)(d) also complies with this statute.
g) LOS for Fire flows - Petitioner asserts that allowing the Jefferson County fire marshal to
establish fire flow requirements in the UGA does not ensure that fire flows will be maintained
at an urban LOS and does not comply with RCW 36.70A030(16) and (19). Exhibit 13-32 at
20. ICAN's Opening Brief.
The County replies that, while the GMA specifies that fire protection services are necessary
urban services for UGA, there is nothing in the GMA that prohibits the fire marshall from
setting urban standards for fire flows. Respondent's Prehearing Brief at 27.
Conclusion 2.g): We find that the Petitioner has not sustained its burden of proof that the
Fire Marshall is not the appropriate entity to set fire flow requirements. RCW
36.70A030(16) and (19) give us no direction in that regard.
h) Rural v. Urban Standards - Petitioner points out that the UGA Element states that capital
facilities and utilities in the UGA are being provided by non-County providers at urban
standards. Petitioner also says that the County has the responsibility to ensure urban
services are not extended outside of UGAs without specific circumstances. Petitioner
alleges that the County has violated RCW 36.70A100(4). ICAN's Opening Brief at 9.
We can find no County response to these statements.
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31, 2005
Page 28 of 51
LOG rr E!\il
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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Conclusion 2.h): We cannot determine the basis upon which the Petitioner believes the
County has violated the cited statute. Petitioner has not sustained its burden of proof that
the UGA Element has violated this statute by adopting these LOS standards.
B. Densities and Intensities Within the Non-Municipal UGA
Petitioners make a number of arguments related to the establishment of densities and
intensities of use in the Irondale and Port Hadlock UGA through the challenged
comprehensive plan amendment and implementing development regulations. First they
argue that the County has failed to adequately "include population densities [and] building
intensities in its Urban Growth Element, Exhibit 13-22, as required by RCW 36.70A.070(1).
ICAN's Opening Brief, A. 3 at 6-7. Second, they argue that the population figures used to
determine the size of the UGA are inaccurate. Ibid at 7. Third, Petitioners argue that the
County's justification for commercial lands designated in the Irondale and Port Hadlock UGA
is flawed and inconsistent with its needs analysis. Ibid at 11. Finally, they argue that the
allowed building heights and lot coverages for commercial in the implementing development
regulations are not consistent with the commercial needs analysis or the sewer analysis.
Ibid at 25. We will address these arguments as challenges to the urban density levels set
for the UGA, to the population projections used for planning in the new UGA, to the
commercial designations, and to the development regulations of commercial uses allowed in
the UGA.
1. Urban densities
As a threshold matter, the Petitioners argue that the Urban Low Density Residential zone
density planned for the lrondale and Port Hadlock UGA does not constitute an urban density
level. ICAN's Opening Brief at 24-25. Both the Petitioners and the County agree that the
density projected for Urban Low Density Residential within the UGA is 3.5 dwelling units per
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 29 of 51
LOG ITFfvl
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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acre. Petitioners argue that "the allowance of suburban development with septic systems
(or even 4-unit per acre development with septic waivers) precludes true urban development
at densities of 4-6 dwelling units per acre in the UGA." Ibid at 25.
The County argues that density of 3.5 dwelling units per acre is "essentially urban in nature
and it would be incongruous to apply rural DR's in such an environment." Respondent's
Prehearing Brief at 6. The County urges that the 3.5 dwelling units per acre density that it
has adopted for Urban Low Density Residential in the Irondale and Port Hadlock UGA
simply reflects the density of existing platted lots with vested rights for residential
development. Respondent's Prehearing Brief at 6.
The Boards have agreed that densities of 4 dwelling units per acre or greater constitute
urban densities. The Central Puget Sound Growth Management Hearings Board has said
that any residential pattern of four net dwelling units per acre (or higher) is compact urban
development and satisfies the low end of the range required by the Act. Bremerton, v.
Kitsap County, CPSGMHB Case No. 95-3-0039c (Final Decision and Order, October 6,
1995). This Board has also adhered to this general principle. See Berschauer v. Tumwater,
WWGMHB Case No. 94-2-0002 (Final Decision and Order, July 27, 1994); and Klein v. San
Juan County, WWGMHB Case No. 02-2-0009 (Final Decision and Order, October 15, 2002)
("the ratio of four dwelling units per acre as a minimum urban density level... more
accurately reflects an urban level of density").
However, the boards have not held rigidly to this standard. The Central Board has stated
that there may be other factors that justify residential densities under 4 dwelling units per
acre in urban growth areas. Benaroya, v. City of Redmond, CPSGMHB Case No. 95-3-
0072c (Final Decision and Order, March 25, 1996). This Board has also recognized that
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31, 2005
Page 30 of 51
LOG rrPI\p
" -,..oil
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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environmental factors may playa part in determining appropriate urban densities.
Berschauer v. Tumwater, WWGMHB Case No. 94-2-0002 (Compliance Order
December, 17, 1994)
In the Urban Growth Element here, the County's comprehensive plan discusses the
residential density decision in the Irondale and Port Hadlock UGA further. As an
explanation for the 3.5 dwelling units per acre urban residential density, it notes that it is
important to protect the critical aquifer recharge area that serves the lrondale and Port
Hadlock UGA. Exhibit 13-37 at 2-5. It also points out the need to protect the Chimacum
Creek Corridor and its associated wetlands, and the marine shoreline at the mouth of
Chimacum Creek. Ibid. Although the environmentally sensitive areas do not correspond
exactly with the residential areas of lesser density, they are in close enough proximity to
warrant the County's concern. See Figure 2-3, Exhibit 13-37.
Conclusion B.1: Under these circumstances, we do not find that the County's choice to use
densities of 3.5 dwelling units per acre for certain residential portions of the lrondale and
Port Hadlock UGA to be clearly erroneous. Because environmentally sensitive areas are
present, lesser densities are justifiable.3
2. Population Proiections
Petitioners argue that the County used the wrong market factor in determining the need for
residential and commercial growth in the new non-municipal UGA. ICAN's Opening Brief
at 7. Petitioners argue that the County applied a 25 percent market factor to the projected
3 We do not find that the area of small pre-existing platted lots must be considered urban growth. If the County
cannot provide urban services to this portion of the UGA within the 20-year planning horizon, the County may
want to consider whether this area should be designated as a limited area of more intensive rural development
pursuant to RCW 36.70A.070(5)(d)(i). We do not foreclose this alternative by finding that the County has not
clearly erred in making the choice for 3.5 dwelling unit per acre densities in the Tri-Area UGA.
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31,2005
Page 31 of 51
LOG ITEfv1
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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maximum population for the Irondale and Port Hadlock UGA rather than applying the 25
percent market factor to the maximum projected population growth. Ibid. By applying the
market factor to the total population rather than to the growth in population, Petitioners
argue, the County used an effective 52 percent market factor. Ibid.
The County responds that the Urban Growth Element provides a range for the estimated
population in 2024. Respondent's Prehearing Brief at 9. The range is from 4,906 assuming
no market factor, to 6,133, using a 25 percent market factor. Ibid.
The GMA expressly provides for the use of a "market factor" in making an urban growth
area determination:
An urban growth area determination may include a reasonable land market
supply factor and shall permit a range of urban densities and uses. In
determining this market factor, cities and counties may consider local
circumstances. Cities and counties have discretion in their comprehensive
plans to make many choices about accommodating growth.
RCW 36. 70A.11 0(2) (in pertinent part)
However, the market factor does not apply to the population calculation - it is a "land market
supply factor." It applies to the calculation of land availability rather than to the calculation
of the number of people to be accommodated.
The County is required to plan for growth based on the 20-year population projections
obtained from the Office of Financial Management (OFM):
Based upon the growth management population projection made for the
county by the office of financial management, the county and each city within
the county shall include areas and densities sufficient to permit the urban
growth that is projected to occur in the county or city for the succeeding
twenty-year period, except for those urban growth areas contained totally
within a national historical reserve.
RCW 36. 70A.11 0(2) (in pertinent part)
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31, 2005
Page 32 of 51
LOG ITEM
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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OFM is required to prepare a projection of population for each county pursuant to RCW
43.62.035. Each projection "shall be expressed as a reasonable range developed within the
standard state high and low projection. The middle range shall represent the office's
estimate of the most likely population projection for the county." RCW 43.62.035. The
statute also provides that a comprehensive plan or amendment using the range adopted for
the projection "shall not be considered to be in non-compliance." Ibid. As a consequence,
this Board has held that there is no authority for a county to adopt a projection that exceeds
the range limits in the OFM projection. Dawes v. Mason County, WWGMHB Case No.
96-2-0023 (Final Decision and Order, December 5, 1996).
Here, we have not been provided with the range of high and low 20-year OFM population
projection for Jefferson County. However, the new 20-year population growth allocation for
the lrondale and Port Hadlock UGA adopted by Jefferson County was 2,353 persons.
Exhibit 13-37 at 2-8. Adding the adopted population growth allocation to the existing
population of 2,553 persons, the County projected a total of 4,906 persons in the lrondale
and Port Hadlock UGA. Ibid. The County then added a 25 percent market factor to that
population range to create a new population range of 4,906 to 6,133 persons. Ibid. This is
not a correct use of the market factor which, as we said, may be applied to the calculation of
available land to accommodate growth but does not apply to change the projected
population.
Conclusion B.2: The County's use of a market factor to increase the population range upon
which planning is based in the lrondale and Port Hadlock UGA is clearly erroneous and
does not comply with RCW 36. 70A.11 0(2).
3. Desianation and reaulation of commercial uses
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 33 of 51
LOG ITFtvi
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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Petitioners argue that the urban growth element policies for the Irondale and Port Hadlock
UGA fail to comply with RCW 36. lOA.OlO because they allow residential lands to be
designated as commercial without a showing that there is any need for additional
commercial lands. ICAN's Opening Brief at 11. They further argue that the UDC
amendments allow new residential development in one of the commercial zones (Ibid at 23)
and allow increases in the building intensity for commercial development beyond the
assumptions used in the County's land capacity analysis, known as the Trottier Report. Ibid
at 25.
The County responds that the Urban Growth Element does specify the densities that will be
allowed in each zone and the development regulations implement the comprehensive plan.
Respondent's Prehearing Brief at 13. As to the UDC amendments, the County argues that
it is not inappropriate to allow new residential development in the Visitor Oriented
Commercial area which is specifically planned for a resort development. The resort plans to
include single-family homes as timeshares along with the Inn at Port Hadlock. The zoning
reflects this plan for mixed development. Ibid at 26. Finally, the County argues that the
Board has already upheld the needs analysis in the Trottier report. Ibid.
The County is correct that the Board found that the land capacity analysis was compliant.
Final Decision and Order, August 22,2003.4 Petitioners also admit that they did not raise
their concerns about possible defects with the Trottier analysis to the Board of County
4However, the County misreads the Board's decision to hold that there is no need for a land capacity analysis
in setting the Tri-Area UGA boundaries. The Board noted the special circumstances of the number of pre-
existing platted lots in the Tri-Area in addition to the adequacy of the land capacity analysis as reasons why
the County may establish a non-municipal UGA there but it did not approve the UGA boundaries:
For all the reasons we have stated above, we find that the County under these special
circumstances, can establish a non-municipal UGA in the Tri-Area. However, the final
designation of the UGA and its boundary will have to await the completion of the other steps
required that we will discuss later in this decision.
Final Decision and Order, August 22, 2003, at 15.
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31,2005
Page 34 of 51
LOG ITEfv1
Westem Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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Commissioners. Hearing on the Merits, April 18, 2005. The Petitioners cannot revisit the
adequacy of the land capacity analysis under these circumstances.
We also agree with the County that the decision to allow mixed residential and commercial
development in the Visitor Oriented Commercial land use designation complies with the
GMA. This designation is defined in the comprehensive plan to include residential
development, so there is no lack of specificity in the plan itself. There is no prohibition in the
GMA against mixed development. Further, the total amount of area in this designation is
only 14 acres, of which only 7 acres are vacant and usable for any kind of development.
Exhibit 13-37, Table 2-1, at 2-10.
However, there must be a connection between the land capacity analysis and the amount of
land designated for a given use. That is part of the requirement to "include population
densities, building intensities, and estimates of future population growth" in the land use
element of a comprehensive plan. RCW 36.70A.070(1). See the Procedural Criteria for
Adopting Comprehensive Plans and Development Regulations on this concept found in
WAC 365-195-305. Where the County has established a need for commercial land, its
designation of commercial lands must correlate to that need. Petitioners argue that UGA-P
1.6 allows Urban Residential zoning to be designated Urban Commercial without a showing
of need to designate more land as commercial. ICAN's Opening Brief at 11.
UGA-P 1.6 provides:
The lrondale and Port Hadlock UGA has a limited amount of undeveloped
commercial parcels suitable for attracting and accommodating regional
commercial development. To enhance the potential for commercial
redevelopment opportunities in the UGA, parcels currently utilized for and
designated as Urban Residential on the UGA Zoning Map (Figure 2-1) may be
designated Urban Commercial on the UGA Future Land Use Map (Figure 2-1),
provided that those parcels meet all of the following criteria:
1) are immediately adjacent to an existing designated Urban Commercial zone; and
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31, 2005
Page 35 of 51
LOG ITFM
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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2) have direct frontage on or access to a state arterial roadway;
The UGA Future Land Use Map may designate such parcels for Urban
Commercial use indicating the long-term (Le., 20-year planning horizon) desire
for that type of development while recognizing the proper current utilization of
such parcels for residential use. This policy shall not be interpreted to require
a property owner with such a Zoning Map/Future Land Use Map combination
designation to re-zone their property to the same designation as shown on the
Future Land Use Map. Where such designations may occur for a particular
parcel on the Official Maps of the County, as described herein, the Official
Maps and implementing regulations shall be interpreted to be consistent with
the Comprehensive Plan pursuant to RCW 36.70A.040.
Exhibit 13-37 at 2-23.
In discussing the comprehensive plan land use map and zoning designations, the
comprehensive plan notes that almost a quarter of the land is designated for commercial
use. Exhibit 13-37 at 2-10. Of the total 1,057 net acres of land in the Irondale and Port
Hadlock UGA, 233 acres are actually designated as either Urban Commercial or Visitor-
Oriented Commercial. See Table 2-1. However, UGA-P 1.6 adds an additional unspecified
amount of acreage to this amount. There is no estimate of how much acreage of the Urban
Residential land use designation could be designated as Urban Commercial at the owners'
option under UGA-P 1.6. There is therefore no link between a need for such commercial
lands and this re-designation option. In addition, without an assumption for the acreage to
be re-designated under this policy, it has not been analyzed for potential impacts - either on
services or on environment. Thus, this policy is not tied to need, nor is it assessed for
potential urban service impacts.
UGA-P 1.7 provides that amendments to the UGA Future Land Use Map are subject to the
comprehensive plan amendment process but that changes to the UGA Zoning Map are
subject to the development regulation amendment process for the UDC. Exhibit 13-37 at 2-
23. This means that a re-designation of urban residential land as urban commercial land
would follow the procedures for a comprehensive plan amendment. However, since the
comprehensive plan language already allows such a designation change without a showing
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31, 2005
Page 36 of 51
LOG ITErvl
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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of need or impact, the only issue would be whether the land subject to the designation
change meets the location criteria of UGA-P 1.7. Thus, the failure of the comprehensive
plan to link the potential commercial lands to the land use capacity analysis or the urban
service analyses is ripe now. The open-ended policy for cross-designation of urban
residential lands as commercial lands in UGA-P 1.6 without analysis or even full
identification of the lands to which this provision applies fails to comply with RCW
36.70A.070(1) as well as the requirement to size UGA commercial and residential areas in
the UGA to meet projected needs:
Based upon the growth management population projection made for the
county by the office of financial management, the county and each city within
the county shall include areas and densities sufficient to permit the urban
growth that is projected to occur in the county or city for the succeeding
twenty-year period, except for those urban growth areas contained totally
within a national historical reserve.
RCW 36. 70A.11 0(2).
It also creates an inconsistency in the comprehensive plan itself in violation of RCW
36.70A.070 and between the development regulations and the plan in violation of RCW
36.70A.130(1 )(b).
Conclusion B.3: The adequacy of the County's land use analysis (the Trottier Report) was
found compliant in the Board's Final Decision and Order and cannot be revisited here.
Allowing mixed residential and commercial uses in the Visitor-Oriented Commercial land
use designation complies with the GMA. However, UGA-P 1.6 allows for the change in
designation of an unspecified amount of residential land to a commercial land use
designation without analysis of either need or impacts. Therefore, UGA-P 1.6 fails to
comply with RCW 36.70A.070(1), RCW 36.70A.110(2) and RCW 36.70A.130(1)(b).
4. Buildinq Intensities in the Development Requlations
Petitioners argue that the building heights and lot coverages that are allowed in the
implementing development regulations are greater than those assumed in the Trottier
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31,2005
Page 37 of 51
LOG ITFfVi
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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Report and therefore the land capacity analysis for commercial lands should be revisited.
ICAN's Opening Brief at 25-26. The County responds that the Trottier Report was found
compliant and that the County anticipates a demand for 70 acres of new commercial land in
the new UGA during the next 20 years. Respondent's Prehearing Brief at 27.
As we noted earlier, the County's land use capacity analysis was found compliant in the
Final Decision and Order in this case. The County now allows greater building intensities
and lot coverages in the development regulations than were part of the assumptions of that
analysis, but that does not provide a basis for re-opening the analysis. A decision to allow
greater commercial density in the UGA is not equivalent to a change in assumptions.
Further, this issue is one that Petitioners have never raised to the Board of County
Commissioners. Even if Petitioners have standing to raise it now (RCW 36.70A.280(4)), we
find that they have not met their burden of showing that Respondent County has changed
its land use capacity analysis by adopting these development regulations.
Conclusion 8.4: The County has not re-opened the adequacy of the land use capacity
analysis for this UGA by adopting development regulations that allow for increased building
heights and lot coverages.
C. Inconsistencies alleged between the new comprehensive plan amendments
and development regulations and other County planning policies and
regulations
Issue No.9: Did the County use a proper 20-year horizon for UGA planning
consistently throughout the adopted Comprehensive Plan, development regulations,
and capital facility planning and fiscal analysis in the unincorporated subject UGA
that is also consistent with RCW 36.70A.020(6), and .130(1)(b) regarding: .070
(preamble), .100, .110(2), .115, and .210?
Issue No. 15: Are the amendments to the Comprehensive Plan internally consistent,
as required by RCW 36.70A.130(1)(b), regarding RCW 36.70A.070(1)?
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 38 of 51
LOG ITEfvi
#
Page~fi~oc c;-l
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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Disagreement over "the" correct 20-year planning horizon separates the parties. The
subject ordinance adoption and plan update (amendment of the 1998 comprehensive plan)
occurred in August of 2004. Plan updates are scheduled in seven-year increments.
Repeated references in the County plan update designate 2004 to 2024. Certainly, given
the appeal period for plan updates, the plan could not formally take effect until the end of
October 2004. However, the adoption date of the ordinance and plan update reflects the
preparations and planning in anticipation of a 2004 adoption and formal commencement of
a 20-year planning period.
Petitioner asserts there are references in elements, studies, and projections in the plan that
reference years other than 2004 to 2024. ICAN's Opening Brief. Petitioner notes at page
14 of the Opening Brief that this is inconsistent with the 20-year planning period of 2004 to
2024 used elsewhere in the plan. ICAN further states all of the UGA analysis should use
the same 20-year planning period to be internally consistent, as required by RCW
36.70A070 (preamble).
Petitioner details in pages 20,21, and 22 of ICAN's Opening Brief ten places in the
comprehensive plan update where mapping errors, typographical errors, lack of detail in
tables, a problematic footnote, and absent information pertinent to a plan update exist. This
constitutes internal inconsistencies in the comprehensive plan, in the view of Petitioners,
and is a violation of RCW 36.70A070 (preamble) and RCW 36.70A130(1)(b).
Jefferson County in its Prehearing Brief takes umbrage at the sundry errors in maps, tables,
sentence structure and spelling, and missing bits of information pointed out by Petitioners
calling them small quibbles over the plan and development regulations adopted by
Ordinance 10-0823-04. Respondent County further argues that ICAN's Opening Brief
resembles not so much a genuine challenge to the County's compliance with the goals of
the GMA, but more of a mark-up of a grammar exam, with marks highlighting typos,
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 39 of 51
lOG ITFtVi
#
Page:-LL l of~"
-----1___ _ :1
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O, Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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misspellings, and omissions, but without substantial challenge to the content. The County
does not contend that such alleged errors have no significance; however, it questions
whether such minutia belongs within a Petition for Review seeking a determination that an
ordinance is not compliant with the goals of the GMA. Ibid at p.2
Conclusion C: The challenged internal inconsistencies in reference to the 20-year planning
horizon are minor and can be cured by Respondent County through clarifications and
careful editing of the adopted comprehensive plan and development regulations. As we
said earlier, the County has offered to correct such errors and we agree that the County
should have the opportunity to correct its minor errors. Since this is being returned for
compliance, the Board reserves any non-compliance finding on minor errors such as this
until the County has had an opportunity to make its own corrections. We expect that the
County will show us its corrections at the next compliance briefing. If the County does not
make the corrections of identified minor errors, Petitioners may raise them at the next
compliance hearing.
The planning horizon of 2004 to 2024 is the dominant reference in the 2004 comprehensive
plan update and should control all features and elements of that plan.
D. Miscellaneous challenges to the procedures incorporated within the
new amendment and development regulations
Issue No. 12: Has the County adequately provided for transformance of governance
in the provision of adequate urban water supply in the unincorporated subject UGA,
consistent with RCW 36. 70A.11 0(4)?
Issue No.1: Does the processing and adoption of the ordinance comply with RCW
36.70A.020(11), .035, .040. and .070 (preamble), .130 (1)(b), .140, and .210?
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31, 2005
Page 40 of 51
LOG rn=tvl
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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Respondent County's adopted comprehensive plan (Exhibit 13-37, pages 2-15 and 2-16)
details the plan to secure potable water for the subject UGA from PUD #1 of Jefferson
County.
Respondent County states in Finding of Fact 34 of Ordinance 10-0823-04:
The water supply for the UGA will be provided by the Public Utility District #1
of Jefferson County (PUD). The PUD is a water purveyor regulated under
regulations of the federal Environmental Protection Agency and state
Department of Health (DOH). Part of these requirements includes a
development of a Comprehensive Water System (WSP) every 6 years. The
WSP must address water supply and infrastructure needed within the next 20
years. The PUD has recently (February 2004) completed a draft update to
their WSP and submitted the WSP to DOH for review and approval. As part of
the review and approval process and according to DOH procedures, water
rights and capacity must be available or planned to meet future demands for
the PUD's service area.
In Findings of Fact 35 and 36, planning for the amount of growth and water rights are
addressed. The PUD has planned for the amount of water needed to serve anticipated
growth. With the water rights, available source development will be needed to meet future
demands. Finding of Fact 37 notes the current effort to increase the production of Sparling
Well by 300 gallons per minute. At Finding of Fact 38 the County finds the PUD has
recently constructed a two-million gallon water tank and a 280,000 gallon water tank for
storage to provide water for fire-fighting and reduce the need for short-term demand on
wells.
Petitioners, however, point to the last sentence of Exhibit 13-37, Potable Water section at
page 2-16, noting the County adopts by reference and incorporates into the comprehensive
plan the PUD's WSP, as may be amended. ICAN challenges this statement as a violation
of public participation requirements of the GMA and of the County's own comprehensive
plan because future water plans will be able to amend the comprehensive plan without any
opportunity for public comment.
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31, 2005
Page 41 of 51
LOG '" Western Washington
, . fEfv1 Growth Management Hearings Board
# 905 24th Way SW, Suite B-2
-...'__ Olympia, WA 98502
Page._Li~~ Olympia, WaShing~~9:~~4~g~;;
=~ __ ,"5 Phone: 360-664-8966
Fax: 360-664-8975
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Conclusion D: The provision that makes an amendment of the PUD water plan an
automatic amendment of the County's comprehensive plan does not comply with RCW
36.70A.130(2) and RCW 36.70A.140. While the County's incorporation of the PUD water
plan into its comprehensive plan as the source of the water supply and service to the UGA
is proper, it may not also provide that future amendments to the PUD's utility plans are
simply incorporated into the County's comprehensive plan without the opportunity for public
review and comment during the County's Comprehensive Plan amendment process.
E. Invalidity
Issue No. 16: If any portion of the Ordinance is found not to comply with the Act in
the issues presented above should these Ordinance sections be found invalid under
terms of RCW 36.70A.302 for substantial interference with the fulfillment of Goals 1,
2, 5, 6, 9, 10, 11, and/or 12?
Petitioners also request that the Board find that any non-compliant sections of the
challenged ordinance be also found to substantially interfere with the goals of the GMA.
Pursuant to RCW 36.70A.302, if the Board makes a finding of noncompliance, the Board
may also find that the continued validity of part of a plan or regulation would substantially
interfere with the fulfillment of the goals of the GMA. RCW 36.70A.302(1)(b). The effect of
an invalidity finding is that any development permit application not vested before receipt of
the Board's order by the County, "vests to the local ordinance or resolution that is
determined by the board not to substantially interfere with the fulfillment of the goals of this
chapter." RCW 36.70A.302(3)(a).
We have held that a test for imposition of invalidity is whether the continued validity of the
challenged and non-compliant enactment would interfere with proper planning in the future.
Vinatieri v. Lewis County, WWGMHB Case No. 03-2-0020c (Compliance Order - 2005,
January 7,2005). In this case, the non-compliant comprehensive plan provisions and
development regulations allowing urban levels of development without requiring urban
~~~LN~;.c6;~~~0~~~ ~:-~~~1O LOG ITErVi Growth Manage::n~t~~a~:;:i~~~~~
May 31, 2005 # 905 24th Way SW, Suite B-2
Page 42 of 51 - Olympia, WA 98502
Pag~!:lqs;f -;=?- Olympia, WaShing~~9:~~4~g~~;
Phone: 360-664-8966
Fax: 360-664-8975
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levels of sewer service pose the danger that such development might vest in the new UGA
before the County is able to adopt compliant development regulations. Such vested
development would interfere with the County's ability to plan for adequate public sewer
service to the new urban growth area, thus interfering with UGA goals for urban growth with
adequate public facilities and services (Goal 1) and adequate public facilities and services
to support development at the time the development is available for occupancy (Goal 12).
Further, the provisions that allow commercial development in the "sewered" area do not
assure that sewer will ever be provided but allow commercial development to occur on
"interim septic" indefinitely. Therefore the commercial density that is allowed in that area
may occur at the maximum densities that may be supported by septic systems, which are
neither urban nor rural.(Goal 2)
Conclusion E: Therefore, we find that the continued validity of the comprehensive plan
provisions that designate "optional sewer areas" and "unsewered areas" in the new Irondale
and Port Hadlock UGA, and the development regulations that permit such urban
development without sewer in the new UGA, substantially interfere with the fulfillment of
Goals 1 and 12 of the GMA.
VII. FINDINGS OF FACT
1. Jefferson County is a county located west of the crest of the Cascade Mountains that
has chosen to or is required to plan under RCW 36.70A.040.
2. Petitioner Irondale Community Action Neighbors (ICAN) is an organization that,
through its members and representatives, participated in writing or through oral
comments in the process of adoption of Jefferson County Ordinance No. 10-0823-04
by the County. Petitioner Nancy Dorgan is an individual who also participated in
writing and/or oral comments in the County process
3. Petitioner ICAN was the petitioner in WWGMHB Case No. 03-2-0010 which is now
before this Board on compliance.
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 43 of 51
LOG rr"';:~ ~
'" _,vI
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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Jefferson County adopted Ordinance No. 10-0823-04 in response to the Board's
finding of non-compliance in the Final Decision and Order dated August 22,2003, in
WWGMHB Case No. 03-2-0010. Ordinance No. 10-0823-04 was adopted by the
Board of County Commissioners on August 23, 2004, and published on August 25,
2004.
Petitioners timely filed their Petition for Review of Ordinance No. 10-0823-04 on
October 25, 2004.
At the first Hearing on the Merits, the County represented that it planned to phase
sewer service during the 20-year planning horizon, throughout the new UGA.
It was also an express understanding that the County would not allow urban levels of
development in the new UGA until sewer and other urban services could be provided.
The County has changed its strategy with respect to its non-municipal UGA and now
has decided to establish non-municipal UGA boundaries that include areas for which
no public sewer is to be provided in the 20-year planning horizon.
The County has adopted comprehensive plan amendments for the Irondale and Port
Hadlock UGA that allow urban development with three different levels of sewer
service: sewer service to areas of high density residential and commercial or
industrial zones; optional sanitary sewer service to areas which are adjacent to sewer
service areas; and unsewered areas.
This scheme allows urban levels of development without corresponding urban levels
of sewer service.
The Irondale and Port Hadlock UGA lack public sewer service today.
Since it is not associated with any city, the new UGA would have to be served
through the County.
The County has no existing capacity to serve any part of the new UGA with sewer,
although it has been researching the options very carefully.
The capital facilities section of the Urban Growth Element has a generalized capital
facilities plan that has cost estimates, but no choices about what specific sources of
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31,2005
Page 44 of 51
Western Washington
LO Growth Management Hearings Board
G IT r::,Vi 905 24th Way SW, Suite B-2
# . 1-, Olympia, WA 98502
P.O, Box 40953
P -~----- --- Olympia, Washington 98504-0953
. . age t:..u of c-?, Phone: 360-664-8966
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funds will be used or the distribution of costs among the County's general fund, loans
and grants, and user fees.
The General Sewer Plan incorporated in the comprehensive plan contains a forecast
of future needs for capital facilities and the proposed general locations for future
conveyance facilities, but not their capacities.
While the plan designates a preferred alternative from four alternatives for sewage
treatment and identifies those locations, no decision has been made on the
alternative so no definite location for sewage treatment is contained in the General
Sewer Plan.
While the General Sewer Plan discusses outside funding sources generally, makes
some assumptions about how much of the facilities certain sources could fund, and
presents various alternatives for distributing the costs among the users of the
proposed system, the County has not selected a method for financing the sewer
system.
The amendments to the Capital Facilities Element do not give the necessary
assurance that sewers will actually be provided to the new UGA during the 20-year
planning horizon.
The County's Uniform Development Code (UDC) requires that development within
the sewer service area must connect to the sewer when it is available, with the
caveat that interim on-site septic systems will be not be prohibited in this UGA,
unless there is a sewer system which has capacity to accommodate the proposed
development.
The UDC amendments also permit urban development in the optional sewer area
and the unsewered area of the new UGA.
CWPP 2.1 provides that UGAs will have a full range of urban services over 20 years
and lists sewer service as one of these services.
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31,2005
Page 45 of 51
LOG ITEfvi
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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CWPP 1.5 delineates two tiers of sewer service to the new UGA, the first tier
receiving sewer service within the six-year capital facilities plan and the second tier
within 20 years.
The County's capital facilities plan and the County's UGA Element do not show plans
to serve the northern residential part of the UGA with sewers over the next 20 years.
The County clearly lays out its assumptions for its traffic projections in its
Transportation Element. Exhibit 13-35 at 2-6 - 2-9.
The County has included a clear rationale for why its assumptions about the
intensities allowed in its development regulations will not likely occur.
The County has acknowledged that a mathematical error was made in making the
projections and that it has been corrected The County has offered to correct such
errors and we agree that the County should have the opportunity to correct its minor
errors. Since this is being returned for compliance, the Board reserves any non-
compliance finding on minor errors such as this until the County has had an
opportunity to make its own corrections.
TRP 4.10 is a comprehensive plan policy, rather than a development regulation.
Policy 1.10 does not contain a concurrency requirement that links transportation
improvements and development approval to maintaining the County's level of service
standards.
The density allowed in the Urban Low Density Residential within the new non-
municipal UGA is 3.5 dwelling units per acre.
Lesser densities in the Urban Low Density Residential zone help protect the critical
aquifer recharge area that serves the lrondale and Port Hadlock UGA, the
Chimacum Creek Corridor and its associated wetlands, and the marine shoreline at
the mouth of Chimacum Creek.
The new 20-year population growth allocation for the Irondale and Port Hadlock UGA
adopted by Jefferson County in 2003 was 2,353 persons. Exhibit 13-37 at 2-8.
Adding the adopted population growth allocation to the existing population of 2,553
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31, 2005
Page 46 of 51
LOGITEfvl
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Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
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persons, the County projected a total of 4,906 persons in the lrondale and Port
Hadlock UGA. Ibid. The County then added a 25 percent market factor to that
population range to create a new population range of 4,906 to 6,133 persons. Ibid.
The market factor may be applied to the calculation of available land to
accommodate growth but may not be used to change the projected population
provided by the Office of Financial Management (OFM).
The Board found the County's land capacity analysis compliant in its Final Decision
and Order, dated August 22, 2003.
The land use designation of Visitor Oriented Commercial to allow mixed residential
and commercial development is defined in the comprehensive plan.
Of the total 1,057 net acres of land in the lrondale and Port Hadlock UGA, 233 acres
are actually designated as either Urban Commercial or Visitor-Oriented Commercial.
See Table 2-1.
UGA-P 1.6 allows for cross-designation of urban residential lands as commercial
lands.
There is no estimate of how much acreage of the Urban Residential land use
designation could be designated as Urban Commercial at the owners' option under
UGA-P 1.6. There is therefore no link between a need for such commercial lands
and this cross designation option.
In addition, without an assumption for the acreage to be re-designated under this
policy, it has not been analyzed for potential impacts - either on services or on
environment.
The County's development regulations for the new UGA allow greater building
intensities and lot coverages in the development regulations than were part of the
assumptions of the original land capacity analysis.
A decision to allow greater commercial density in the UGA is not equivalent to a
change in assumptions.
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31, 2005
Page 47 of 51
Western Washington
LOG ITF~vl Growth Management Hearings Board
# . -" 905 24th Way SW, Suite B-2
Olympia, WA 98502
---..--,---- P.O. Box 40953
Page Lt.c.' -Of ~ Olympia, Washington 98504-0953
- --t..k _~ Phone: 360-664-8966
Fax: 360-664-8975
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41. Jefferson County Public Utility District #1 (PDU) is a regulated water purveyor that
provides potable water to the Irondale and Port Hadlock UGA. Ordinance No. 10-
0823-04 provides that future amendments to the PUD plan will automatically amend
the County's CP without providing an opportunity for public participation and
comment.
FINDINGS OF FACT RELATED TO INVALIDITY
42. The non-compliant comprehensive plan provisions and development regulations
allowing urban levels of development without requiring urban levels of sewer service
pose the danger that such development might vest in the new UGA before the
County is able to adopt compliant development regulations.
43. Such vested development would interfere with the County's ability to plan for
adequate public sewer service to the new urban growth area.
44. The provisions that allow commercial development in the sewered area do not
guarantee that sewer will ever be provided and therefore the density that is allowed
in that area may occur at suburban densities rather than either urban or rural
densities.
VIII. CONCLUSIONS OF LAW
A. This Board has jurisdiction over the parties and subject matter of the compliance
issues related to the adoption of Jefferson County Ordinance 10 -0823-04
(WWGMHB Case No. 03-2-0010) and the issues raised in the new Petition for
Review in WWGMHB Case No. 04-2-0022.
B. The Petitioners have standing to bring their claims and raised them in a timely
manner.
C. The creation of the Irondale and Port Hadlock UGA boundaries in Ordinance 10-
0823- 04 to include large areas for which no public sewer will be provided in the 20
year planning horizon does not comply with RCW 36. 70A.11 O.
FINAL DECISION AND ORDER I OG ITJ:: ~Vi Western Washington
Case Nos. 04-2-0022 & 03-2-0010 ~-. , 1-,' I Growth Management Hearings Board
May 31,2005 # 905 24th Way SW, Suite B-2
Page 48 of 51 Olympia, WA 98502
Pag~~ ~r g-:5 Olympia, wa~~~~f~~~if:~~~i!
Fax: 360-664-8975
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The development regulations that allow new urban levels of development
without provision of public sanitary sewer fail to comply with RCW 36. 70A11 0,
RCW 36.70A020(1) and (12).
The development regulations that allow commercial and industrial
development on interim septic tanks without a defined and adopted capital
facilities funding mechanism fail to comply with RCW 36.70A110(4) and
36.70A020(2).
The capital facilities plan of the County's UGA Element for the Irondale and
Port Hadlock UGA fails to comply with RCW 36.70A 070 (3)(a)(c) and (d), and
RCW 36.70A210 (inconsistency with the Countywide Planning Policies).
Policy TRP 1.10 of the Transportation Element of the County's comprehensive
plan does not comply with RCW 36.70A070 (6) (b) since the County does not
have a regulation that links the County's requirements for transportation
improvements at the time of development to the County's level of service
standards.
The County's use of a market factor to increase the OFM population range on
which planning is based in the Irondale and Port Hadlock UGA does not
comply with RCW 36.70A 110(2).
UGA Policy 1.6 fails to comply with RCW 36.70A 110(2) and RCW 36.70A
130(1)(b).
At the County's request, the Board will reserve a finding of noncompliance
regarding minor internal inconsistencies in the plan and regulations identified
in this decision until the next compliance hearing so that the County may have
"an opportunity to correct these minor errors.
The incorporation of future amendments to the PUD's water supply plan into
the County's comprehensive plan without opportunity for review and comment
through the County's comprehensive plan amendment process does not
comply with the RCW 36. 70A 130(2) and RCW 36.70A140.
FINAL DECISION AND ORDER
Case Nos. 04-2-0022 & 03-2-0010
May 31, 2005
Page 49 of 51
I OG ,- " Western Washington
,- I fErv'! Growth Management Hearings Board
# 905 24th Way SW, Suite B-2
Olympia, WA 98502
~w'i '---';::==r--....... P,O, Box 40953
'i c~ge f2l of n Olympia, Washington 98504-0953
~-. '- ..'}.-2-." Phone: 360-664-8966
Fax: 360-664-8975
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L. All other challenges to the compliance of Ordinance 10-0932-04 with the GMA
fail to meet the clearly erroneous standard and the Ordinance is in compliance
as to those issues.
IX. ORDER
The County shall bring Ordinance No. 10-08230-04 into compliance with the Growth
Management Act in accordance with this decision within 180 days of the date of this order.
The following schedule shall apply:
Compliance due
County's Report of Actions Taken Due
Written Objections to a Finding of
Compliance Due
County's Response Brief Due
Compliance Hearing (location to be
determined)
December 1, 2005
December 14, 2005.
January 4, 2006.
January 25, 2006
January 12, 2006..
The remand period shall extend until the Board issues its order on compliance. The Board
understands that future sewer planning would be of unusual scope and complexity.
Therefore, the Board invites the County to propose an alternative schedule of more than
180 days to complete its sewer planning through a motion for reconsideration.
1//
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FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31, 2005
Page 50 of 51
LOG lTErVi
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P,O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975
#
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This is a final order for purposes of appeal pursuant to RCW 36.70A.300(5) and for a motion
for reconsideration pursuant to WAC 242-02-832. A motion for reconsideration must be
filed within 10 days of service of this final decision.
Entered this 31st day of May 2005.
Gayle Rothrock, Board Member
Holly Gadbaw, Board Member
Margery Hite, Board Member
FINAL DECISION AND ORDER
Case Nos, 04-2-0022 & 03-2-0010
May 31, 2005
Page 51 of 51
LOG ITEfvi
#
n.~-:'~:-'--Z-., f S"
f~>a~1~..::;).~O' :J
Western Washington
Growth Management Hearings Board
905 24th Way SW, Suite B-2
Olympia, WA 98502
P.O. Box 40953
Olympia, Washington 98504-0953
Phone: 360-664-8966
Fax: 360-664-8975