HomeMy WebLinkAbout15C- Hearing Examiner Decision
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
Before Hearing Examiner
Gary N. McLean
BEFORE THE HEARING EXAMINER
FOR JEFFERSON COUNTY
Application for a Type III Conditional Use
Permit for a Small-Scale Recreational Retreat
Center, submitted by
POMONA WOODS, LLC
(ANN BURKHART),
Applicant/Respondent
And an Appeal of the SEPA Determination of
Non-Significance (DNS) issued for the Pomona
Woods project, submitted by
OAK BAY CONCERNED CITIZENS,
Appellant,
JEFFERSON COUNTY,
Respondent
(Location: a 21.54-acre site located along the west
side of Oak Bay Road, Parcel Nos. 921183008 &
921183002, zoned Rural Residential 1:5 and 1:20)
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File Nos. MLA21-00066 and
ZON21-00040
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
DECISION DENYING SEPA APPEAL
AND APPROVING CONDITIONAL USE PERMIT
I. SUMMARY OF DECISION.
The appellant failed to meet its burden of proof, so their appeal of the SEPA DNS
issued for this project must be denied. The applicant presented a preponderance of evidence
establishing that its pending Type III Conditional Use Permit application merits approval,
subject to conditions.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
II. PROCEDURAL BACKGROUND.
In June of 2021, the Jefferson County Department of Community Development
(DCD) received the pending application for a conditional use permit from Pomona Woods,
LLC (Ann Burkhart), the applicant. The applicant proposes to develop a commercial, small-
scale tourist and recreational retreat center along Oak Bay Road in the Port Hadlock area of
unincorporated Jefferson County. (Staff Report, page 2, proposal summary). Before
submitting its application, the applicant participated in a Pre-Application Conference
required by JCC 18.40.090 for Type III permits. The County’s Unified Development Code
(UDC) Administrator determined this application should be processed as a Type III
Conditional Use Permit under JCC 18.40.530(2), with a public hearing and decision by the
Jefferson County Hearing Examiner. (Id.).
Staff deemed the application substantially complete for purposes of vesting and
processing on or about September 1, 2021. (Staff Report, final version, included in the record
as Ex. 53, on page 1, .pdf file page 0746). Following public notices and invitations for
comment from adjacent property owners, public agencies and other entities with potential
interest in the application, then receipt and consideration of such comments and application
materials, including a SEPA checklist submitted by the applicant, the County issued a SEPA
Determination of Non-Significance (DNS) for this proposal on or about March 2, 2022.
Shortly thereafter, counsel for a group known as Oak Bay Concerned Citizens (OBCC), the
appellant, transmitted a letter to all parties and the Hearing Examiner’s clerk, explaining that
an appeal would soon be filed challenging the SEPA DNS, and requesting a continuance of
the hearing initially set to occur on March 17, 2022, which would be just one day after the
deadline for filing any SEPA appeal. (March 8, 2022 Letter from Alex Sidles, counsel for
OBCC). Subsequently, OBCC submitted a timely appeal of the initial DNS issued for the
Pomona Woods project, and the Examiner opened the public hearing on March 17th, to allow
for comments from any interested parties who received hearing notices and continued the
public hearing to provide time for the parties to exchange witness lists and exhibits for a
continued hearing that would consolidate consideration of the pending Conditional Use
Permit Application and the SEPA appeal. (Ex. 53, p. 0748; Notice of Appeal, dated March
16, 2022).
Following a pre-hearing conference and various procedural communications,
consideration of a motion to exclude a witness, and an exchange of information amongst the
parties, the continued and consolidated open-record hearing was scheduled to reopen in May
of this year. But, before the May hearing date, the County received information from the
Washington Department of Fish and Wildlife, followed up with a site visit by its staff
biologist, and requested a continuance to allow time for the applicant to prepare a complete
critical areas report, and time for County staff to review such report. The Examiner issued a
written Order continuing the matter to a future date, based upon the County’s request for a
continuance and agreement from the applicant. (Order Granting Request for Continuance,
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
dated May 11, 2022). Then, following consideration of the applicant’s critical areas report
and revised application materials submitted through July and August of this year, the County
withdrew the DNS issued in March, and issued a new SEPA DNS for this project on or about
August 31, 2022. (Ex. 53, page 0748). The appellant submitted a second notice of appeal,
challenging the new DNS, adding wetland concerns as a basis for their appeal. (Second
Notice of Appeal, dated September 14, 2022).
The Examiner held a two-day open-record hearing on September 26 and 27, 2022,
which included testimony and evidence for the pre-decisional hearing on the pending CUP
application, as well as testimony and evidence (with opportunities for cross-examination of
appeal witnesses) regarding the SEPA appeal. The Examiner allowed written comments on
the CUP from individuals who were unable to attend the hearing in person or who felt they
had more extensive comments than they were able to cover in their verbal testimony. At the
close of hearing testimony, the Examiner held the record open to provide an opportunity for
the applicant, County, and appellant attorneys to submit closing briefs. The Examiner
explained that this was a complex matter, with multiple issues, and that a Decision would
take more time than usual. Upon consideration of all evidence included in the record, and
receipt of closing briefs from counsel, this Decision is now in order.
III. APPLICABLE LAW.
As explained in this Decision, the applicant’s project requires a Type III Conditional
Use Permit with public notice, public hearing, and a decision by the Jefferson County Hearing
Examiner. The project also requires State Environmental Protection Act (“SEPA”) review
resulting in a threshold determination.
Basis and Criteria for approval of Conditional Use Permit.
There is no credible dispute that the Jefferson County Code requires a Type III
Conditional Use Permit for this proposal. (See JCC 18.15.040 Categories of land use, Table
3-1, Allowable and Prohibited Uses, confirming that a conditional use permit (“C”) is
required for the applicant’s proposed use [“Recreational, cultural or religious conference
center/retreat facilities”] in the RR 1:5 and RR 1:20 zones, where the applicant’s property
is located).
The criteria for approval of a conditional use permit (CUP) are found at JCC
18.40.530(1), which reads as follows:
JCC 18.40.530 Approval criteria for all conditional uses.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
(1) The county may approve or approve with modifications an application for a
conditional use permit (i.e., uses listed in Table 3-1 in JCC 18.15.040 as “C(a),” “C(d)”
or “C”) if all of the following criteria are satisfied:
(a) The conditional use is harmonious and appropriate in design, character and
appearance with the existing or intended character and quality of development
in the vicinity of the subject property and with the physical characteristics of the
subject property;
(b) The conditional use will be served by adequate infrastructure including
roads, fire protection, water, wastewater disposal, and stormwater control;
(c) The conditional use will not be materially detrimental to uses or property in
the vicinity of the subject parcel;
(d) The conditional use will not introduce noise, smoke, dust, fumes, vibrations,
odors, or other conditions or which unreasonably impact existing uses in the
vicinity of the subject parcel;
(e) The location, size, and height of buildings, structures, walls and fences, and
screening vegetation for the conditional use will not unreasonably interfere with
allowable development or use of neighboring properties;
(f) The pedestrian and vehicular traffic associated with the conditional use will
not be hazardous to existing and anticipated traffic in the vicinity of the subject
parcel;
(g) The conditional use complies with all other applicable criteria and standards
of this title and any other applicable provisions of the Jefferson County Code or
state law; and more specifically, conforms to the standards contained in
Chapters 18.20 and 18.30 JCC;
(h) The proposed conditional use will not result in the siting of an incompatible
use adjacent to an airport or airfield;
(i) The conditional use will not cause significant adverse impacts on the human
or natural environments that cannot be mitigated through conditions of approval;
(j) The conditional use has merit and value for the community as a whole;
(k) The conditional use is consistent with all relevant goals and policies of the
Jefferson County Comprehensive Plan; and
(l) The public interest suffers no substantial detrimental effect. Consideration
shall be given to the cumulative effect of similar actions in the area.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
Jurisdiction of Hearing Examiner.
The County Code vests the Hearing Examiner with authority to hear and issue
decisions on applications for Type III land use decisions. (See JCC
18.40.520(3) “Applications for uses listed as a “C” in Table 3-1 in JCC 18.15.040 shall be
processed according to the procedures for Type III land use decision established in Article
IV of this chapter.”; and JCC 18.40.040, explaining Project permit application framework,
Table 8-1, types of permits, decisions required, and Table 8-2, showing final decision made
by the Hearing Examiner on Type III land use matters).
Appeal of SEPA threshold determination consolidated with hearing for Conditional Use
Permit.
JCC 18.40.810(3) provides that: SEPA Threshold Determinations for Type III
Permits, like the applicant’s pending conditional use permit application, may be appealed to
the hearing examiner pursuant to JCC 18.40.280, Chapter 2.30 JCC, and the Hearing
Examiner rules of Procedure; and the open record public hearing on the SEPA appeal shall
be before the hearing examiner who shall consider the appeal together with the decision on
the project application in a single, consolidated hearing as further set forth in applicable
county codes.
Burden of Proof on SEPA Appellant, Standard of Review.
To satisfy its burden challenging the DNS, an appellant must present actual evidence
of probable significant adverse impacts of the Project. Boehm v. City of Vancouver, 111
Wn.App. 711, 718-719, 47 P.3d 137 (2002).
A "clearly erroneous" standard applies when reviewing SEPA threshold
determinations made by local and state governmental entities, such as the DNS challenged in
this matter. King Cty. v. Washington State Boundary Review Bd. for King Cty., 122 Wn. 2d
648, 661, 860 P.2d 1024 (1993). A challenged DNS may be reversed if, although there is
evidence to support it, the reviewing authority is left with the definite and firm conviction
that a mistake has been committed. See Norway Hill Pres. & Prot. Ass 'n v. King County
Council, 87 Wn.2d 267, 274, 552 P.2d 674 (1976). In reviewing a SEPA threshold
determination, the Hearing Examiner must first determine whether "environmental factors
were considered in a manner sufficient to amount to prima facie compliance with the
procedural requirements of SEPA." Sisley v. San Juan County, 89 Wn.2d 78, 84, 569 P.2d
712 (1977) (quoting Juanita Bay Valley Com. v. Kirkland, 9 Wn. App. 59, 73, 510 P.2d 1140
(1973)). Again, the appellants bear the burden of proof in their SEPA appeal.
Challenged DNS is entitled to substantial weight.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
JCC 18.40.810(9) mandates that, in making a decision in a SEPA appeal, the hearing
examiner shall give deference to and afford substantial weight to the decision of the
responsible official. The same deference is required by RCW 43.32C.090. Such deference
is further mandated by Washington caselaw, including Anderson v. Pierce County, 86 Wn.
App. 290 (1997) (holding that substantial weight is accorded to agency threshold
determinations), and is consistent with WAC 197-11-680(3)(a)(viii)(“Agencies shall provide
that procedural determinations made by the responsible official shall be entitled to
substantial weight.”). However, substantial weight, like judicial deference to agency
decisions, is neither unlimited nor does it approximate a rubber stamp. See Swinomish Indian
Tribal Cmty. v. W. Wash. Growth Mgmt. Hearings Bd., 161 Wn.2d 415, 435 n.8, 166 P.3d
1198 (2007); and Concerned Friends of Ferry County v. Ferry County, 191 Wn. App. 803,
365 P.3d 207 (Div. II, 2015). If an environmental impact statement is required by the
weight of evidence and if a government agency’s SEPA official does not require an
environmental impact statement (as it did not here), then the decision is clearly
erroneous. King County, 122 Wn.2d at 667; Norway Hill, 87 Wn.2d at 274.
IV. RECORD.
All exhibits entered into evidence as part of the record, and an audio recording of the
public hearing, are maintained by the County, and may be examined or reviewed by
contacting the County’s public records officer.
Exhibits:
Staff Report, recommending approval subject to conditions, prepared by Assistant
County Planner Amanda Hunt, original (Ex. 19) prepared for March hearing date,
dated March 2, 2022, amended following receipt of new information and issuance of
new SEPA DNS, dated August 31, 2022 (34 pages), repeated on list below as Ex.
53. For the convenience of all parties, the Prosecuting Attorney’s Office generated
a list of Exhibits, and numbered pages of items included as part of the record, which
is republished in relevant part as follows:
Exhibit
Number
Item DCD
Exhibit # Pages
1 Permit Application A 0001-0002
1A Exhibit List 01A 0003-0004
2 Supplemental Application B 0005-0008
3 SEPA Checklist C 0009-0031
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
4 Soils Report D 0032-0083
5 Stormwater Plan E 0084-0125
6 Stormwater Site Plan E 0126
7 Building Plans F 0127-0134
8 Site Plan G 0135
9 Geotech Report H 0136-0141
10 Communication I 0142-0154
11 Notices J 0155-0164
12 Preapplication Outline K 0165-0171
13 Certification of Water Supply L 0172-0176
14 Fire Rescue Review Letter M 0177-0180
15 Affidavit of Posting N 0181
16 Public Comments O 0182-0278
17 Agency-Department Comments P 0279-0289
18 Inadvertent Discovery Plan Q 0290-0295
19 Staff Report R 0296-0326
20 SEPA Determination S 0327-0328
21 Email Correspondence T 0329-0428
22 Item Log U 0429-0431
23 PowerPoint Hearing Presentation 0432-0444
24 Total Public Hearing Comments 0445-0462
25 WDFW Correspondence 0463-0497
26 Appellant Ex 1 Ross Tilghman CV 0498-0500
27 Appellant Ex 2 Adam Jenkins CV 0501-0502
28 Appellant Ex 3 Ross Tilghman
Report
0503-0507
29 Appellant Ex 4 Adam Jenkins
Report
0508-0522
30 Appellant’s Ex 5 Access Photos 0523-0527
31 Appellant Ex 6 Drainage
Stormwater Photos
0528-0545
32 Appellant Ex 7 Google Earth
vicinity screenshot far
0546
33 Appellant Ex 8 Google Earth
Vicinity screenshot near (1)
0547
34 Reserved 0548
35 Reserved 0549
36 Reserved 0550
37 Habitat Assessment 0551
38 Access Permit 0552-0554
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
39 Driveway Detail 0555
40 Revised Site Plan 0556
41 Reserved 0557
42 Revised Septic System Site Plan 0558
43 Revised Septic System Detail 0559
44 Additional Communications 0560-0564
45 Revised Site Plan 0565
46 Revised Stormwater Site Plan 0566
47 Revised Stormwater Plan 0567-0608
48 Revised SEPA Checklist 0609-0629
49 Critical Areas Report 0630-0736
50 Upland Restoration Memo 0737-0741
51 Public Hearing Notice 0742
52 New SEPA Determination 0743-0744
53 Staff Report Addendum 0745-0778
54 SEPA Appeal (Sept. 2022) 0779-0789
55 Updated Exhibit List 0790-0791
56 Kevin Warner Resume 0792-0793
57 Mike Swenson Resume 0794
58 Laura Bartenhagen Resume 0795-0796
59 Jennifer Marriott Resume 0797-0800
60 Dan McShane Resume 0801-0806
61 Permit Application 0807-0808
62 Geotechnical Report 0809-0814
63 Notices 0815-0824
64 Certification of Water Supply 0825-0829
65 Agency-Department Comments 0830-0840
66 Applicant's Exhibit 2022-05-04
Noise Landau_Pomona Woods -
Technical Review
Memorandum_Final
0841-0849
67 Applicant's Exhibit Transportation
2022-05-04 Pomona Woods
Appeal_Transpo Response
0850-0853
68 Applicant's Exhibit 2022-05-04
Habitat Summary Memo
0854-0876
69 Appellant Ex 10 Diane Brewster
Report
0877-0885
70 Appellant Ex 9 Diane Brewster
CV
0886-0887
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
//
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 10 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
Testimony: The public hearing for this matter was conducted using an online audio/video
platform coordinated by County staff, accessible to parties and members of the public using
sign-in details provided in public notices. During the hearing, the applicant was represented
by counsel, Courtney Kaylor, from the McCullough Hill Leary firm; the County was
represented by Barbara Ehrlichman, Civil Deputy Prosecuting Attorney; and the SEPA
Appellant was represented by Alex Sidles, from the Bricklin & Newman law firm. The
following persons provided testimony under oath as part of the record during the open-record
hearing held on September 26 and 27, 2022. Witnesses called during the portion of the
hearing devoted to the SEPA appeal were all subject to cross-examination. All testimony has
been considered by the Examiner, noting that the following list only provides a short
summary of general topics addressed by individual witnesses, and should not be read to
reduce the scope or substance of any testimony provided.
CUP Application Witnesses:
1. Amanda Hunt, Associate Planner, coordinated preparation of Staff Report and primary Staff
representative through the public hearing, for Jefferson County Department of Community
Development. Credibly summarized the review process, key issues analyzed in the Staff
Report, and her recommendation to approve the pending application, subject to specific
conditions of approval;
2. Ann Burkhart, owner of Pomona Woods, LLC, the applicant, explained details for project,
how they are pursuing LEED Gold certification, summarized how she believes the project has
been designed to conform with applicable development standards and policies, appeared as
the applicant’s primary hearing representative;
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
3. Gordon James, local resident, opposes project he considers to be like a hotel and out of
character for the area; expressed concerns about stormwater, concerns that project might
effect properties or bluff around the Skywater Drive neighborhood/development [which
appears to be located about 10 large parcels to the south of the applicant’s property];
4. Kathy Heinz, local resident, expressed concerns about potable water, wants to be sure the
project connects to a public water supply; questioned how thorough application materials
might be given the wetlands that were not referenced in original materials; concerns about
prospect of trespassers associated with PWoods project; wants increased buffers, general
concerns about construction and possible traffic;
5. Chris Malan, owns property across Oak Bay Road and down from the site; expressed concerns
about conference center, questioned viability of business model, what might happen if it fails,
will it become a hotel; concerns about streams, springs, possible impacts on landslides,
cumulative impact concerns, general statement that Shoreline Management Act should be
considered. Spoke a second time after others had an opportunity to speak, requested
permission to submit written comment from the Koenigs who were unable to attend, granted
permission to submit his written statement into the record; continued comments noting
concerns about clear cutting, shifting costs and problems onto downhill property owners,
general Shoreline Management concerns;
6. Donna Beaton, local resident, expressed general concerns about stormwater issues and
potential problems a septic system might cause for downhill properties; concerns that
responses were inadequate and a precedent will be established; questioned how project can
be approved as a CUP, which can be sold to another party, suggested this project needs a
variance; general concerns about the future, that a hotel might be next;
7. Terri Ross, local resident, owns large property across Oak Bay Road from the project site,
with driveway that faces where new project would access the road; expressed general traffic
concerns, concerned that she may not be able to get out of her driveway;
8. Frances Rawski, local resident, joined hearing late, allowed to offer comments, expressed
opinion that proposal does not satisfy CUP approval criteria, that project is not harmonious
with area, that it is out of character and appearance with existing conditions in the area;
general concerns that the use will be more commercial than rural, that project belongs
elsewhere.
SEPA Appeal witnesses, all subject to cross-examination:
1. Terri Ross, called by the appellant as a lay witness, local resident, with driveway access
concerns, also spoke in the CUP portion of the hearing. Testified showing location of her
driveway, how its situated facing the applicant’s proposed driveway at an angle, and identified
various uses on her property across the street from the proposed Pomona Woods project,
Appellant’s Exs. 5 and 8, including an indoor tennis court, an indoor pickle ball court, and
her home. Expressed general erosion concerns, how there is a canyon where water comes
down. Expressed general concerns with traffic, noting that this portion of Oak Bay Road is
about an 8-mile segment without commercial businesses;
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
2. Kathleen Heinz, called by the appellant as a lay witness, local resident, expressed concerns
about light, glare, noise, need for buffers, need for complete vegetative screening explaining
that she can see into the site from her property that borders the applicant’s site on its south
side, general concerns about noises from vents, heating system, trucks, deliveries, and the
like, negating the peace and quiet she now enjoys at her home. Under cross examination,
confirmed that she is not an expert;
3. Frances Rawski, called by the appellant as a lay witness, local resident, described the area as
a sleeper/retirement community, where folks are in bed early and the noise levels are very
low, so she expressed general concerns that new sounds from air conditioners, large fans, and
other devices that are not present now, would have a negative impact on the area. Under cross
examination, confirmed that she is not a noise expert;
4. Diane Brewster, called by the appellant as their wetlands expert, with her C.V. included in
the record as Appellant’s Ex. 9 (Ex. 70) and her wetlands report as Appellant’s Ex. 10 (Ex.
69). Confirmed that she did not conduct a personal site visit, that she has not seen conditions
personally, and that she relied on site photos from the application materials. Recalled by
appellant for rebuttal testimony, and toward the end of her testimony she acknowledged that
the project, as designed, would not step into the most restrictive wetland buffer that could
apply;
5. Ross Tilghman, called by the appellant, as their traffic issue consultant, with his C.V. included
in the record as Ex. 26, and his traffic report included as Ex. 28. Mr. Tilghman’s testimony
focused upon concerns about driveway alignment and potential traffic conflicts, especially on
worst-case, high-turnover days. Recalled by appellant for rebuttal testimony;
6. Adam Jenkins, called by the appellant, as their acoustical/noise issue consultant, with his C.V.
included in the record as Ex. 27, and his noise report included as Ex. 29. Mr. Jenkins generally
acknowledged that 55db/45db is the state and County day/night noise level limit, but
advocated use of other sound level limits and monitoring, given how quiet ambient noise is
at the project site and surrounding properties, which he studied. Recalled by appellant for
rebuttal testimony;
7. Monte Reinders, Public Works Director since 2013, previously served as County Engineer
2004-2013, called by the County to address traffic issues, and without objection received
recognition as an expert on traffic issues. Mr. Reinders explained that Oak Bay Road has low
volume, so there is no basis for any moratorium on development along the road, that sight
distance is good along the road because it is a straight away where the Pomona Woods project
would access the road, that the Level of Service (LoS) standard for the road is “C” but here it
is at “A”, so there is no LoS problem, that accident rates are lower than other places,
referencing Ex. 17, on pages 0285-86, he explained why the driveway alignment is acceptable
give such low traffic volumes, that the driveway access point has good sightlines left and right
onto the road, that garbage pick-up, mail courier service to and from the project will be typical
and similar to that provided for homes and others along a rural road with low traffic volumes;
8. Kevin Warner, called by the applicant, as their noise consultant, with his C.V. included in the
record as Ex. 56, and his noise report included as Ex. 66. Expressed disagreement with the
appellant’s noise report, noting that to determine is significant impacts might occur, he must
use the county adopted standards that apply to the project, summarized specific problems he
noted with the appellant’s noise report detailed in Ex. 66;
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 13 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
9. Mike Swenson, P.E., called by the applicant, as their traffic consultant, with his C.V. included
in the record as Ex. 57 and his report responding to the appellant’s (Mr. Tilghman’s) report
included as Ex. 67; referenced Ex. 37 showing how the driveway design is such that offsets
are close, so cars can look at one another and that lines of sight are good. His testimony
supported the Public Works Director’s (Mr. Reinders’) testimony about low traffic volumes,
no adverse traffic impacts expected to occur;
10. Laura Bartenhagen, P.E., called by the applicant to address stormwater issues raised in
comments and in the appeal, with her C.V. included in the record as Ex. 58;
11. Amanda Hunt, County Planner, called by the County to address light and glare issues raised
in the SEPA appeal, spoke to screening and buffers as well;
12. Kathleen Heinz, lay witness called by the appellant, as the owner of the property immediately
south of the project site, where her home is located, explained that she believes she will be
able to see new buildings on the project site because trees are down in places leaving gaps
and the like; during cross examination Ms. Heinz acknowledged that her home is built up
close to the property to her north, and that there is a cleared area on her property between the
parcel to her north and her house (See Ex. 29, p. 0549);
13. Jennifer Marriott, called by the applicant as their wetlands expert, with her C.V. included in
the record as Ex. 59;
14. Donna Frostholm, County Associate Planner and wetland specialist, called by the County to
address critical areas/wetland issues raised in the appeal.
Site Visits: The Examiner personally visited the project site, before and after the hearing,
looking in from Oak Bay Road, observing surrounding properties in the area, and the local
road network that would serve the applicant’s proposal.
Closing Briefs: In lieu of closing arguments at the conclusion of the public hearing, counsel
for all parties to the SEPA appeal requested the opportunity to submit post-hearing briefs,
which are included as part of the record. Appellant’s Closing Brief is 17 pages. The applicant
and the County submitted a Joint Closing Brief, with 15 pages.
III. FINDINGS OF FACT.
Based on the record, and following consideration of all the evidence, testimony,
codes, policies, regulations, and other information included therein, the undersigned issues
the following findings of fact:
1. All statements of fact included in previous or following sections of this Decision,
including without limitation those included in the Background summary, that are deemed to
be findings of fact are incorporated by reference into this section as findings of fact issued by
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 14 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
the Hearing Examiner. Captions used in this Decision are for the convenience of the reader
and should not be read to modify the meaning of any particular finding.
2. The application at issue in this consolidated hearing process is for a Type III
Conditional Use Permit that would authorize development of a commercial, small-scale
tourist and recreation center known as “Pomona Woods” along Oak Bay Road, in the Port
Hadlock area of unincorporated Jefferson County. In accord with state and County codes,
the associated appeal of the SEPA Determination of Non-Significance (DNS) issued for this
project has been consolidated into this single hearing process.
3. Pomona Woods, LLC (Ann Burkhart) is the property owner and project applicant
(“Applicant”).
Location.
4. The project site is mostly rectangular, with 21.54 acres, comprised of two parcels.
The smaller parcel, 921183002, is zoned Rural Residential 1:5 and referenced as the
“entrance parcel” in the Staff Report, fronts Oak Bay Road on the west, and has just 1.33
acres. The project will be accessed by a commercial road approach off of Oak Bay Road,
leading through the entrance parcel and winding through the larger parcel to the back (west)
portion of the site. The larger parcel, 921183008, is zoned Rural Residential 1:20, with about
20.21 acres that move east away from Oak Bay Road, will house the proposed retreat center
and most all associated development. (Staff Report, Ex. 53, pages 0746-47; Site Plan, Ex.
45). Both parcels are highlighted in the following image, provided as Figure 1 in the Staff
Report, on page 0747:
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 15 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
Project Description:
5. The Staff Report summarizes the applicant’s proposal (“Project”) as follows: The
Pomona Woods Retreat Center would accommodate guest reservations for group activities
such as yoga retreats, business group retreats, and corporate or not-for-profit strategic
planning. Rooms would not be reserved for individual guests. The 7,155 square foot Pomona
Woods Retreat Center proposes twenty-four rooms, a commercial kitchen to serve guests
three meals a day, and would accommodate a maximum of thirty-five guests and seven
employees. A caretaker residence (for two on-site caretakers), septic system, main parking
lot (30 stalls), caretaker parking area (1 stall), lawn area, one access road, and one entrance
sign are also proposed to serve the retreat center. The proposal would create 60,621 square
feet of new impervious surface. (Staff Report, page 0746).
6. The Staff Report explains that: all work would be conducted on a vacant, heavily
forested property. There are two Type “Ns” Streams (seasonal non-fish bearing), four
Category IV Wetlands, and a Coastal Saltwater Intrusion Protection Zone located on or
adjacent to subject property. No other critical areas are located on the property. The applicant
has submitted a SEPA Environmental Checklist, Critical Areas Report, Upland Restoration
Memorandum, Stormwater Pollution Prevention Plan, Custom Soil Resource Report, Class
IV General Forest Practice Application, and Geotechnical Report in conjunction with the
Conditional Use (Type III) Permit application. The proposal is subject to review under the
State Environmental Policy Act (SEPA). (Staff Report, page 0746).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 16 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
7. As noted above, the applicant’s proposal is for a new commercial and recreational
business in a residential area of Port Hadlock, in unincorporated Jefferson County,
Washington. The applicant participated in a mandatory Pre-Application Conference (JCC
18.40.090) for Type III permits on May 4, 2021. The Unified Development Code (UDC)
Administrator determined this application must be processed as a Type III Conditional Use
Permit under JCC 18.40.530(2) with a public hearing and decision by the Jefferson County
Hearing Examiner. (Staff Report, page 0746).
8. The applicant’s land is heavily forested with dry valley-like features that slope
downwards to the east. Two non-fish bearing streams and four small wetlands are located on
or adjacent to the property. 80% of the property will remain naturally vegetated as a result of
the project. The proposed building locations will be located on the flat, western portion of the
property. Oak Bay Road is located approximately 900 feet from Puget Sound. There are no
proposed water-based activities related to this proposal. (Staff Report, page 0747; Testimony
of Ms. Hunt; Site visit observations).
9. The applicant’s Revised Site Plan, included in the record as Ex. 45, is republished
below:
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
10. Surrounding parcels are zoned Rural Residential 1:5 and 1:20, Commercial Forest
1:80, and Rural Forest 1:40 (see Staff Report, “Figure 2”, on page 0748). Properties to the
north, east, and south of the site are occupied by single-family, rural residential properties on
multi-acre parcels. Adjacent residential setbacks start at approximately 90 ft from the subject
property lines. Adjoining land to the west and north is designated commercial forest land and
currently observes an active 6-year moratorium under Forest Practice Application no.
2615156. A 250-ft commercial forest setback will be maintained between the proposed
buildings and commercial forest land. All interior lot lines will apply a 50-foot landscaping
buffer – which is 35-feet larger than the required standard for projects of this type, i.e. a
small-scale recreational and tourist use development. (Staff Report, pages 0747-48, citing
JCC 18.30.130(5)).
11. The Staff Report and witness testimony demonstrated that the applicant’s proposed
retreat center will not be the first recreational or commercial use in the vicinity, or out of
scale with other buildings in the area, along Oak Bay Road or in a Rural Residential Zone –
contrary to some public comments that suggested the area was simply residential, like an
early to bed sleeper/retirement community, or something to that effect. The following list
are undisputed examples of existing recreational and commercial uses in the area, as well as
an existing building with more square footage than the applicant’s proposed retreat center:
• Parcel 921183025: Under BLD1999-00614, construction of an all-steel 7,200 square foot covered
tennis court with attached all-steel 800 sq. ft building;
• Parcel 921183012: Under BLD2013-00238, construction of 2,448 square foot pickleball court/pole
building on footprint of demoed single-family residence (no heat, no plumbing);
• Parcel 921192007: Under BLD2007-00604 and ZON2008-00010, construction of 1,420 square foot
recording studio/office for home business with connecting steel bridge to single family residence
(heated, 1 bathroom);
• Parcel 921073027- Pete’s Electric;
• Parcel 921073016: Oak Bay Getaway – Vacation Rental; and • Parcel 977400018: Shanty Too- Vacation Rental.
(List provided in Staff Report, on page 0761; Testimony of Ms. Ross, confirming location of the tennis court
structure and pickleball building on her properties that are situated across the street [Oak Bay Road] from
the applicant’s property).
12. There is no dispute that the Jefferson County Comprehensive Plan, last adopted in
December of 2018, designates the applicant’s parcels Rural Residential 1:5 and 1:20, and that
the zoning designations for each parcel are fully consistent with the County’s Comprehensive
Plan. (Staff Report, pages 0747-48). Public comments challenging the propriety of current
Comprehensive Plan and zoning designations for the applicant’s parcels – including the types
of uses permitted or allowed via a conditional use permit in a particular zone – must be
rejected, as this hearing process cannot be used as a means to collaterally attack prior land
use and zoning decisions by the County that were never challenged in a timely manner.
Wenatchee Sportsmen Ass'n v. Chelan Cty., 141 Wn.2d 169, 4 P.3d 123 (2000).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 18 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
13. There is no credible dispute that the Jefferson County Code requires a Type III
Conditional Use Permit for this proposal. (See JCC 18.15.040 Categories of land use, Table
3-1, Allowable and Prohibited Uses, confirming that a conditional use permit (“C”) is
required for the applicant’s proposed use [“Recreational, cultural or religious conference
center/retreat facilities”] in the RR 1:5 and RR 1:20 zones, where the applicant’s property
is located).
14. The Staff Report credibly explains how the applicant’s proposal falls squarely within
applicable definitions and policies found in the County’s Comprehensive Plan and
development regulations for small-scale recreational or tourist uses, recreational uses, and
the limited commercial aspects associated with such uses, all of which can be authorized
through review and approval of the Type III Conditional Use Permit requested in this matter.
(Staff Report, pages 0755-57, analysis of relevant Comprehensive Plan Policies and
definitions, and additional definitions found in County codes).
15. As explained in the Procedural Background provided above in this Decision and in
the Staff Report, this application has been subject to a lengthy and thorough review process,
with ample public notice and multiple opportunities for members of the public and relevant
agencies to offer comments. The application materials were revised and supplemented to
address several concerns raised in comments. Written comments received before the public
hearing are credibly summarized and addressed in the Staff Report. (See pages 0749-0755).
None of the written public comments or verbal testimony at the public hearing provided
sufficient, credible evidence or information to rebut the analysis and findings in the Staff
Report, which establishes how the pending application satisfies applicable codes and
requirements and merits approval.
16. Most significantly, this application included two SEPA reviews, the first of which
resulted in a Determination of Non-Significance (DNS) issued on March 2, 2022, which was
subsequently withdrawn. The County’s withdrawal of the first DNS and issuance of the
second DNS followed review of a revised environmental checklist and other updated permit
application materials submitted by the applicant, and an inspection of the site. In July and
August 2022, the applicant submitted a revised Site Plan, Critical Areas Report, and Upland
Restoration Memorandum in conjunction with the pending application. These submittals
revealed the presence of streams and wetlands on the applicant’s property. Staff determined
that the wetland protection and mitigation plans included in the new materials provided in
July and August of 2022 satisfy the requirements of JCC 18.22.730 and JCC 18.22.740, and
therefore satisfy local and state requirements of JCC Chapter 18.22 Critical Areas, Article
VII, re: Wetlands. County staff determined that the proposal, as designed and conditioned to
comply with applicable County development regulations, would not have a probable
significant adverse impact on the environment. Accordingly, the County issued a new DNS
on August 31, 2022. (Staff Report, page 0748-49; Ex. 52, SEPA DNS issued in August).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 19 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
17. There is no dispute that the appellant, Oak Bay Concerned Citizens, submitted a
timely Notice of Appeal, challenging the SEPA DNS issued for this project. (Second Notice
of Appeal, dated September 14, 2022).
18. As explained above in the Procedural Background, the Examiner held a two-day,
consolidated open-record hearing on September 26 and 27, 2022, which included testimony
and evidence for the pre-decisional hearing regarding the pending Conditional Use Permit
application, as well as testimony and evidence regarding the SEPA appeal.
Summary of SEPA Appeal.
19. This Decision will first address the SEPA DNS appeal because the underlying CUP
application should not be approved if the appeal is granted. As explained below, the appellant
failed to meet their burden of proof to demonstrate that the challenged DNS should be
rejected, so the appeal must be denied.
20. The appellant’s Second Notice of Appeal seeks reversal of the SEPA DNS issued in
August of 2022 for the Pomona Woods project. (See Second Notice of Appeal, on p. 7, par.
23, Requested Relief; Ex. 52, SEPA DNS at issue in this appeal).
21. In their appeal Notice, Appellant alleges that there will be significant adverse impacts
related to the following aspects of the environment: 1) traffic safety; 2) landslides and
erosion; 3) stormwater runoff; 4) noise; 5) light and glare; 6) aesthetic impacts; 7) wetlands,
streams and habitat.
22. As the County and Applicant noted in their Joint Closing Brief, the Appellant also
raised a claim about insufficient availability of water and aquifer recharge but did not present
any evidence on this point during the hearing process. The Examiner concurs and finds that
the appellant has abandoned issues regarding Water Availability and Aquifer Recharge
concerns (items 16 and 17 in the appeal notice). (See Olympic Stewardship Found. v. Envtl.
& Land Use Hrgs. Office, 199 Wn. App. 668, 687, 399 P.3d 562 (2017) (“We also do not
consider claims unsupported by legal authority, citation to the record, or argument.”).
23. In any event, undisputed evidence in the record established that the Project will
connect to a public water system. (See Ex. 53, pp. 0751, 7054; Ex. 65, pp. 0825-0828).
Traffic.
24. Appellant’s witness Ross Tilghman admitted that the Project will not result in
problems with level of service (“LOS”) and that warrants for a left turn lane into the Project
driveway are not met in this instance. (Ex. 28, p. 0504; Tilghman Testimony). Despite these
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 20 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
admissions, which recognize the fact that the Project will not create traffic congestion and
that Oak Bay Road has sufficient capacity for existing and the applicant’s project traffic,
Appellant asserts there will be significant adverse traffic safety impacts. Appellant failed to
meet its burden of proof on this issue.
25. Appellant claims the slight offset between the Project driveway and Ms. Ross’s
driveway across Oak Bay Road will result in significant adverse safety impacts. But the
driveways are almost completely aligned. (Ex. 39; Ex. 67, pp. 0850-0851; Swenson
Testimony). There is good sight distance on Oak Bay Road in this location and cars exiting
the driveways will be able to see each other. (Reinders Testimony; Site visits by the
Examiner). The following portions of Ex. 39 (upper image) showing driveway alignment
and Ex. 30, p. 0526 (lower image), show clear lines of sight between the two driveways:
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 21 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
26. In addition, witnesses credibly testified that the traffic volumes on Oak Bay Road and
both driveways are very low. Swenson Testimony, Reinders Testimony. Even using Mr.
Tilghman’s estimate, full Project occupancy of 35 guests will only generate 18 cars a day.
Ex. 28, p. 056. If every guest arrives in the same hour, this is a maximum of 18 cars in one
hour. Swenson Testimony. Typical industry standard would be 10% of daily trips per hour.
Id.
27. Monte Reinders, the Public Works Director, testified that there are many instances of
offset driveways on Oak Bay Road, and these locations do not have a history of accidents.
Reinders Testimony. In short, this is a common condition on Oak Bay Road – a roadway
with low traffic volumes and clear sight-lines – so the applicant’s project is not likely to result
in traffic safety impacts associated with the driveway alignment.
28. Mr. Tilghman also claimed there is a danger of rear end collision associated with cars
waiting on Oak Bay Road to turn left into the Project. But, as stated above, Mr. Tilghman
admitted that Washington Department of Transportation (“WSDOT”) left turn lane warrants
are not met. Ex. 28, p. 0504; Tilghman Testimony. Mr. Reinders testified that cars making
left turns into driveways is a common occurrence on Oak Bay Road and does not result in
accidents. Reinders Testimony. Again, there is no significant risk of accidents because of the
low traffic volumes and good sight lines available for drivers in this location. Id.
29. Mr. Tilghman generally claimed that the Project would result in significant pedestrian
and bicycle safety impacts. His allegations were credibly rebutted by the Public Works
Director, who pointed out the low volume of traffic expected from the applicant’s Project,
and the low use of the road in the Project area by pedestrians and bicycles, so the Project will
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 22 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
not significantly contribute to pedestrian and bicycle risks on Oak Bay Road. Reinders
Testimony.
30. The appellant’s closing brief argues that the Examiner should impose a CUP
condition requiring the applicant to locate the new driveway substantially south of Ms. Ross’s
driveway across the street, to avoid any possible traffic conflicts, or else produce an
engineering study explaining why a southward driveway location is infeasible. Because a
preponderance of evidence in the record establishes that Oak Bay Road has such light traffic,
has good sight lines for drivers as they might face another car where the Ross and Pomona
Woods’ driveways would be situated, and other reasons summarized in the Public Works
Director’s testimony and in the Joint Closing Brief from the County and the applicant, the
Examiner must respectfully decline the appellant’s request for additional traffic conditions.
Landslides, Erosion, and Stormwater Issues.
31. During the hearing, the appellant did not present any expert testimony on landslide,
erosion, or stormwater issues generally alleged in their Notice of Appeal. Instead, some local
residents testified about their general concerns that the applicant’s Project might somehow
increase risks of erosion, landslides, or similar problems for properties near the site. The
testimony was not supported by details or information from qualified professionals to
substantiate such concerns or rebut conclusions in the applicant’s Geotech Report. The
appellant’s Closing Brief does not mention landslides or erosion – seemingly moving away
from such issues, which do not provide a basis to grant their appeal.
32. Hearing participants who expressed concerns about landslide and erosion issues may
find reassurance in the Geotechnical Report prepared for the Project, which concludes that
the Project will not result in erosion or landslide risks if the requirements of the applicable
Stormwater Manual are followed. (See Ex. 9, at p. 0136).
33. The appellant’s Closing Brief argues that the applicant’s stormwater expert provided
insufficient information to establish that the project will satisfy minimum requirements found
in the applicable Stormwater Manual. They allege that the applicant failed to show that there
will be adequate infrastructure for stormwater, not that there might be, here at the CUP
approval phase instead of later at the building permit phase.
34. This project is not unlike most others throughout the state, where final stormwater
system design occurs at the building permit or final engineering phase for the Project. The
requirements entail full compliance with the applicable Stormwater Manual. In this instance,
the key point of controversy is whether the site has adequate space and soils to fully disperse
stormwater generated by this project on the applicant’s property. Unrebutted expert
testimony established that the applicant’s property has adequate space, forested conditions,
and soils to allow for full on-site dispersion of stormwater generated by this project. (See
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 23 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
Ex. 9, Geotech Report, prepared by Dan McShane, Licensed Engineering Geologist,
Conclusions on page 6, reading in relevant part:“Stormwater from the access drive and
buildings should be fully dispersed consistent with the Stormwater Manual and based on the
size of the property, forested condition and soil types this can be readily accomplished.”).
35. Additionally, the Applicant’s expert stormwater engineer, Laura Bartenhagen,
testified that recommended conditions of approval in the Staff Report address landslide,
erosion, and stormwater concerns. These conditions include Conditions 1, 2, 4-6, 12, 27 and
28. (Staff Report, Ex. 53, at pp.0774, 0775, and 0777). They require that the Project meet the
2019 Western Washington Stormwater Manual. Id. at pp. 0775, 0777; Bartenhagen
Testimony. Ms. Bartenhagen credibly explained her professional opinion that stormwater
from the Project will be dispersed on site in accordance with the Stormwater Manual,
specifically noting that the Stormwater Manual requires a 100-foot vegetated flow path for
dispersion, which is present on the applicant’s property. Bartenhagen Testimony. In other
words, there is plenty of room, with the types of vegetation and soil types, on the applicant’s
property to satisfy on-site stormwater dispersion/infiltration requirements. Given that two
experts provided unrebutted evidence confirming that the applicant’s property has adequate
land and conditions that will allow for full dispersion of stormwater on the applicant’s
property, the appellant’s stormwater claims are without merit, and do not provide a basis to
grant this appeal.
Noise.
36. There is no dispute that the Project meets the County’s adopted noise standards.
(Testimony of Mr. Warner). The Appellant’s noise witness freely admitted that the applicant’s
project will meet the County’s adopted standards, but he advocated other standards that have
not been adopted by the County. (Testimony of Mr. Jenkins; Ex. 29, pp. 510-513, 515, 518).
This is true even though Appellants’ noise modeling included several assumptions that would
result in higher predicted sound levels. (Ex. 66, p. 0844-0845).
37. There is no credible dispute in this record that 55db/45db is the state and County
day/night noise level limit, as measured from property lines. (See JCC 8.70.050(1), adopts
noise limits found in WAC 173-60).
38. Based on such evidence, and other portions of the record referenced in the Joint
Closing Brief from the County and Applicant, the Examiner finds and concludes that the
appellant failed to show that there will be any significant, adverse impacts associated with
noise issues.
39. Any noise concerns about emergency generator testing or operations during actual
emergency events are contrary to applicable law, as the Jefferson County Code specifically
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 24 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
exempts such equipment from otherwise applicable noise regulations in the following
provision:
JCC 8.70.060 Exempt noises. Sounds originating from the sources listed here do not constitute
a violation of this chapter, are not “public nuisance noises” and are defined as an “exempt noise”
regardless of where or when they occur, unless otherwise noted. [...]
(11) Generators during periods when there is no electrical service available from the primary
supplier due to power outage, where a generator is the only available source of electrical
power, and the normal periodic testing of generators during daylight hours;
40. While the appellants failed to meet their burden of proof to establish significant
adverse noise impacts associated with this project, they appropriately directed attention to
recommended conditions of approval that could be improved to verify that testimony and
evidence provided by the applicant – to the effect that any HVAC and other mechanical
equipment will be selected and situated to comply with applicable County noise standards –
will actually occur.
41. For instance, the applicant’s Noise Report includes the following statement:
(From Applicant’s Noise Report from Laundau Associates, Ex. 66, on p. 0845).
42. To be sure this happens, the Examiner finds and concludes that it is appropriate to
revise the recommended Conditions of Approval to require certification(s) from a qualified
professional at the time of building permit/engineering plan reviews to the effect that HVAC
and other major mechanical equipment known to generate outdoor noise are specifically
identified, selected, and situated in a manner that will satisfy applicable County noise
standards at property lines. (See new language added to Condition of Approval No. 24(d)).
Light and Glare, Aesthetic Impacts.
43. Appellant did not present expert testimony on light and glare impacts. Members of
the public testified about their general, speculative concerns that light and glare from the
Project would be visible to neighbors and that the Project architecture would not be in keeping
with nearby residences.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 25 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
44. As noted in previous findings, the applicant’s project is not out of scale with other
buildings on surrounding properties in the same zone, including a 7,200 square foot covered
tennis court with an attached 800 sq.ft. building, and a separate 2,448 sq.ft. pickleball
building, all on Ms. Ross’s property just across the street from the proposed Pomona Woods
project. (Staff Report, page 0761). The applicant’s Project consists of a small retreat center
with only a 7,155 SF footprint that is just two stories in height with a caretaker’s residence.
(Staff Report, p. 0766). The Project site is on over 21 acres and leaves 80% of native
vegetation undisturbed. (Staff Report, p. 0747).
45. The Project is designed and conditioned to include dense 50-foot buffers, 35 feet
wider than required by the County Code. (Staff Report, pp. 0748, 0761, 0777).
46. Further, the Project includes substantial setbacks. The retreat center building is 239
feet from the nearest parcel line and approximately 500 feet from the nearest existing single-
family residence on Oak Bay Road. (Staff Report, p. 0760). The caretaker’s residence is
approximately 92 feet from the property line and 350 feet from the nearest existing single-
family residence on Oak Bay Road. Id. Ms. Hunt testified these setbacks and buffers would
adequately address any potential visual impacts. The following aerial photo from the Staff
Report on p. 0760 shows how the closest single-family residence, to the south where Ms.
Heinz lives, is well screened by existing vegetation on the applicant’s property – and will be
better screened after the project is developed and all “Screen A” type landscaping
requirements are fulfilled.
//
//
//
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 26 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
47. While Ms. Heinz suggested some of the buffer area was sparsely treed, Ms. Hunt
testified that any sparse areas would need to be revegetated to comply with County Code
provisions, as required in Condition of Approval No. 29. (See Staff Report, p. 0777; Hunt
Testimony).
48. JCC 18.30.130 governs landscaping buffers. (Staff Report, p. 0777). JCC
18.30.130(5) requires that “Screen A” landscaping be provided on interior lot lines of small-
scale recreational and tourist development adjacent to a residential use. “Screen A”
landscaping is “a ‘full screen’ that functions as a visual barrier.” JCC 18.30.130(3)(a).
“Screen A” landscaping “[s]hall at a minimum consist of ... [a] mix of primarily evergreen
trees and shrubs generally interspersed to form a continuous year-round screen that grows at
least eight feet in height within two growing seasons.” Id. Existing trees and vegetation fulfill
the landscaping or screening requirements of Section 18.30.130 only if they “meet or exceed
these standards.” (Testimony of Ms. Hunt).
49. Full screen means fully screened – in other words, the required “Screen A”
landscaping should block views from Ms. Heinz’ residential property immediately south of
the applicant’s property onto the Pomona Woods development site. And, Ms. Heinz is
welcome to plant additional trees and shrubs on her own property to fill-in parts of the cleared
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 27 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
space on her own property to further ensure that she will not be able to see into the Pomona
Woods property. The Examiner has modified Condition No. 29 to include the express
language found in the County’s code regarding the type of landscaping required, inserting
the following language:
“It is expressly understood that this Condition [29] mandates “Screen-A” landscaping
between the applicant’s property and any neighboring residential use, and that “Screen-
A” landscaping is a “full screen” that functions as a visual barrier. (See JCC
18.30.130(3)(a)).”
50. Members of the public also expressed concern about the Project sign on Oak Bay
Road. But the staff-recommended conditions of approval address this issue, limiting the size
of the sign and its proximity to Oak Bay Road, and requiring that “[s]ign light fixtures
illumination shall be shielded and directed in a manner not to adversely affect neighboring
properties or create a hazard to on-coming Oak Bay Road traffic.” (Staff Report, p. 0777).
51. Given the Project’s design and specific conditions of approval, Appellant failed to
meet their burden of proof to show that the Project will result in significant adverse light and
glare or aesthetic impacts.
Wetlands, Streams and Habitat issues.
52. Besides issues abandoned by the appellant because they presented no evidence to
support allegations raised in their appeal statement, including any assignments of error
involving streams or habit issues1, the Wetlands evidence and testimony from the appellant
was the weakest part of the appeal hearing. The appellant’s Closing Brief concedes that, in
response to a question from the Examiner, all witnesses agreed that a Category III, high
intensity buffer applied to any of the wetlands on or near the applicant’s property, would not
affect the applicant’s current site plans. (Appellant’s Closing Brief, on page 16, lines 9-11).
53. During her rebuttal testimony, the appellant’s wetlands expert, Ms. Brewster,
abandoned almost all of her claims of errors (other than some typos acknowledged by Ms.
Marriott) found in the applicant’s Critical Areas Report (Ex. 49) prepared by Ms. Marriott.
(Testimony of Ms. Brewster). And, Ms. Brewster admitted that she has never visited the
project site, and she has never seen Wetland A, among other things. In contrast, Ms. Marriott
personally walked the project site, to make personal, in the field observations of features and
conditions on and around the applicant’s property, all as addressed in her credible and
1 Appellant presented no evidence regarding streams or habitat impacts generally. The applicant’s Critical
Areas Report stands unrebutted and establishes that there are no significant adverse impacts involving any
stream or habitat issues. (Ex. 49; Testimony of Ms. Marriott). The Examiner finds that the appellant abandoned
these issues, and they provide no basis upon which this appeal can be granted. (See Olympic Stewardship
Foundation, 199 Wn. App. at 687).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 28 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
detailed Critical Areas Report for the project. The County’s in-house wetland specialist, Ms.
Frostholm, also visited the site so that she could make personal in-field observations.
54. The Examiner finds and concludes that the evidence and testimony provided by both
Ms. Marriott and Ms. Frostholm was more credible and reliable than testimony from the
appellant’s wetland expert, who relied on a single photograph of a portion of a wetland to
argue that Wetland A should be rated as a ‘depressional wetland.’ The wetland ratings and
associated buffers that should apply for this project, as summarized in the Staff Report, based
upon the applicant’s Critical Areas Report, stand unrebutted.
55. In any event, arguments about whether a particular wetland should be deemed a
depressional wetland with a different wetland rating and accompanying buffer provide
absolutely zero basis upon which to grant this appeal – because the project is designed so that
all buildings and improvements would still be well outside any larger wetland buffer
requested by the appellants. (See Ex. 49, p. 0662; Testimony of Ms. Marriott, Ms. Brewster,
and Ms. Frostholm).
56. A map from the Critical Areas Report shows rings around the wetlands, and Wetland
A (mostly offsite, with a portion in the far southwest corner of the applicant’s property) is the
sensitive area closest to the primary buildings included in the Pomona Woods development.
The map shows three rings, illustrating locations of low, medium, and high impact buffers
that could apply to wetlands near the project, and is republished below.
(Screenshot from map in Critical Areas Report, Ex. 49, at p. 0662).
57. The appellant argued that the site plans could change to address their noise concerns
or some other issue, but the preponderance of evidence in this record firmly establishes that
the project has been designed so that any final adjustments to the site plan, if any are allowed
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 29 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
under County codes, would still avoid high impact buffers. The appellant’s Closing Brief
essentially concedes this point – admitting “... in all cases, the [site plan] changes would be
likely to move development farther from Wetland A, not closer.” (Appellant’s Closing Brief,
on page 16, lines 15-16).
58. Additionally, the 50-foot landscaping buffer running along the south boundary will
overlay most all of any wetland buffer encroaching into the applicant’s property.
59. The Staff Report explains that a temporary road approach was approved in 2021 and
installed prior to the submittal of the 2022 Critical Areas Report. This road approach and site
investigative work disturbed a portion of the outer 25% of Wetland E’s buffer. The applicant
is proposing 374 square feet of native sword fern plantings to mitigate for the minor buffer
disturbance. The applicant shall follow the Mitigation Map and Buffer Planting
Specifications described in Figures 5-7 of the report to mitigate for previous buffer
disturbance to Wetland E. The Conditions of Approval require implementation of the 2022
Critical Areas Report’s Mitigation Map and Buffer Planting Specifications.
60. The Staff Report explains that the applicant’s site plan was revised on July 17, 2022
for the propose of moving the road approach and driveway areas northward to avoid further
buffer impacts to Wetland E. In response to the road approach location adjustment, Public
Works revised RAP2021-00068 on July 5, 2022 to require any area outside of the temporary
approach to be removed and the area restored. An Upland Restoration Memorandum (Ex.
50), prepared by Wet.land LLC on July 22, 2022, was submitted in conjunction with this
application on August 19, 2022. The 2022 Memorandum proposes to restore all portions of
the approach, that will not be used in the final driveway location, as native, upland forest.
Restoration covers a 1,978 square foot area that includes 80 native shrub plantings, gravel
removal, decompacting soils, and installing bark in bare soil areas. The upland restoration
will occur outside of all critical areas and will follow a maintenance plan with contingency
measures. (Staff Report, page 0758).
61. The conditional use permit is expressly conditioned to require implementation of
2022 Upland Restoration Memorandum’s Existing Conditions & Restoration Plan and
Restoration Specifications.
62. Due to the location of all proposed site development and setbacks from the delineated
wetland buffers, Staff appropriately determined that, as conditioned, the proposal meets the
wetland protection standards set forth in JCC 18.22.730 and JCC 18.22.740. No direct,
permanent impacts to any wetlands, streams, or buffers will result from this proposal. (Staff
Report, page 0758). The appellants failed to rebut such determination.
63. As explained above, the appellants failed to meet their burden of proof to establish
that any adverse wetland impacts will occur as a result of this project.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 30 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
64. In the end, the appellant failed to satisfy their burden of proof as to any issues raised
in their appeal, so the SEPA appeal must be denied in its entirety.
65. Members of the public who generally opposed the requested CUP and SEPA
appellant witnesses failed to submit a preponderance of evidence to rebut the Staff Report’s
analysis, findings, and conclusions that establish how the applicant’s proposal, as
conditioned, satisfies all approval criteria. The Examiner has modified some recommended
conditions to better-ensure that the project will be constructed and operated in a manner that
satisfies applicable development regulations.
66. Upon consideration of all evidence and comments included in the Record, the
Examiner finds and concludes that there is insufficient evidence that would serve as a basis
to deny the requested conditional use permit.
67. The Staff Report credibly explains how the revised application materials, as
conditioned, will comply with all applicable County Comprehensive Plan goals and policies,
County development codes, and Critical Area protections, including without limitation those
pertaining to the following subjects: Zoning; Preserving Rural Character; Wetlands; Geologic
Hazards; and Archaeology. (Staff Report, pages 0755-0759).
As Conditioned, the pending application satisfies the approval criteria for a Conditional
Use Permit.
68. Based on more than a preponderance of evidence in the record, the Examiner finds
and concludes that, as conditioned, the proposed Pomona Woods Retreat Center satisfies all
of the approval criteria for a Conditional Use Permit set forth in JCC 18.40.530(1). The Staff
Report’s unrebutted, credible analysis and explanation of how the pending application
complies with such criteria are incorporated herein as findings of the Hearing Examiner
supporting issuance of the requested permit, subject to conditions. Opposition witnesses and
SEPA appellants failed to establish that the project has not been properly designed or
conditioned to comply with applicable County development regulations.
69. Based on the record, the Examiner finds that the underlying project has been reviewed
in substantial compliance with applicable SEPA procedures and that the SEPA appellants
failed to meet their burden of proof, so their appeal must be denied and the challenged DNS
should be affirmed.
70. Except as modified in this Decision, all Findings, and statements of fact contained in
the final Staff Report (Ex. 53), are incorporated herein by reference as Findings of the
undersigned hearing examiner.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 31 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
V. CONCLUSIONS OF LAW.
1. As explained above, the record includes far more than a preponderance of evidence
establishing that the pending permit application satisfies all applicable decision criteria
specified in the County’s code and merits approval, subject to conditions of approval.
2. JCC 18.40.810(9) mandates that, in making a decision in a SEPA appeal, the hearing
examiner shall give deference to and afford substantial weight to the decision of the
responsible official. Even if such deference were not required, for reasons explained in the
Findings of Fact, the appellant failed to meet their burden of proof regarding any of the
specific issues raised in their appeal. The SEPA appeal must be denied, and the challenged
DNS should be affirmed.
3. Any finding or other statement contained in this Decision that is deemed to be a
Conclusion of Law is hereby adopted as such and incorporated by reference.
VI. DECISION.
Based upon the preceding Findings of Fact and Conclusions of Law, evidence
presented through the course of the open record hearing, all materials contained in the
contents of the record, and the Examiner’s site visits to the area, the undersigned Examiner
denies the SEPA appeal and affirms the challenged DNS, and APPROVES the Type III
Conditional Use Permit for the Pomona Woods Retreat Center, File No. MLA21-
00066/ZON21-00040, subject to the attached Conditions of Approval that are incorporated
by reference as part of this Decision.
ISSUED this 18th Day of November, 2022
_____________________________
Gary N. McLean
Hearing Examiner
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 32 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
CONDITIONS OF APPROVAL
CONDITIONAL USE PERMIT
FOR THE
POMONA WOODS PROJECT
(SMALL-SCALE TOURIST AND RECREATIONAL RETREAT CENTER)
FILE NOS. MLA21-00066 AND ZON21-000040
(Location: a 21.54-acre site located along the west side of Oak Bay Road, Parcel Nos. 921183008 & 921183002)
A. This Type III Conditional Use Permit authorizes development and operation of a commercial,
small-scale tourist and recreation center on the above-referenced parcels located along Oak Bay Road,
in the Port Hadlock area of unincorporated Jefferson County, Washington, as described in the Staff
Report (Ex. 53) and in substantial conformance with the approved stamped site plan included in the
record as Exhibit 45. Any future changes or modifications in uses, operations, facilities, or activities
on this site are subject to review for consistency with then-applicable codes and ordinances and does
not preclude subsequent reviews or determinations that new or additional permits are needed, all of
which may be subject to specific, additional conditions placed on such permits or approvals needed
to authorize future modifications or changes at the site.
1. The applicant shall obtain approved building permits to include Fire Code review and a
Stormwater Plan reviewed by the Jefferson County Department of Public Works for the
construction of the proposed retreat center and caretaker residence that is consistent with any
CUP conditions of approval and shall ensure that stormwater best management practices are
in place before any construction activities take place.
2. DNR- FPA/N specific condition. The applicant shall apply for and obtain a Class IV General
Stormwater Permit from the Jefferson County Department of Community Development prior
to beginning any clearing, grading, or other land disturbing activities. Failure to obtain the
Class IV General Stormwater Permit shall result in a 6-year development moratorium being
placed on the property.
3. Ecology- Solid waste management specific condition. All grading and filling of land must
utilize only clean fill. All other materials may be considered solid waste and permit approval
may be required from the local jurisdictional health department prior to filling. All removed
debris resulting from this project must be disposed of at an approved site. Contact the local
jurisdictional health department for proper management of these materials.
4. Ecology- Water quality/watershed resources unit specific condition. Erosion control
measures must be in place prior to any clearing, grading, or construction. These control
measures must be effective to prevent stormwater runoff from carrying soil and other
pollutants into surface water or storm drains that lead to waters of the state. Sand, silt, clay
particles, and soil will damage aquatic habitat and are considered to be pollutants.
5. Ecology- Water quality/watershed resources unit specific condition. Any discharge of
sediment- laden runoff or other pollutants to waters of the state is in violation of Chapter
90.48 RCW, Water Pollution Control, and WAC 173-201A, Water Quality Standards for
Surface Waters of the State of Washington, and is subject to enforcement action.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 33 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
6. Ecology- Additional permits specific condition. The applicant shall contact the Washington
State Department of Ecology to determine if additional permits or studies are required.
Construction site operators must apply for a permit at least 60 days prior to discharging
stormwater from construction activities and must submit it on or before the date of the first
public notice.
7. Environmental Health – Septic system specific condition. The applicant shall obtain an
approved septic system permit from the Jefferson County Department of Environmental
Health prior to approval of the building permit application. The proposed septic system is
sized for a peak flow of 3487.5 gallons per day to serve the 24 room retreat center, kitchen,
and caretaker’s unit. Maximum guest occupancy is 35 guests in the retreat center, rooms may
be occupied in single and double occupancy capacity so long as no more than 35 guests total
are on site at a given time. Use of other rooms for sleeping or additional guests will exceed
the design capacity of the septic system and will cause premature failure of the septic system.
Any additional guests beyond the 35-guest occupancy limit will be considered a violation to
this permit approval.
8. Environmental Health – Septic system specific condition. The kitchen facility is permitted
and designed to process wastewater from the retreat center guests only. It is sized such that it
can process the wastewater from a maximum of 35 guests being served 3 meals per day.
Additional meals or additional guests will exceed the design capacity of the septic system and
cause premature failure of the septic system and will be considered a violation to this permit
approval. Any other use of the kitchen facility has not been reviewed or approved and will
also be considered a violation to this permit approval.
9. Environmental Health- Potable water specific condition. The conditional use for this project
is approved for available potable water provided that there is an appropriately approved and
installed water main extension from the Quimper Water System #05783 to serve the project.
Future building permits will not be approved for available potable water unless the water tap
is located on the subject parcel and connection is available.
10. Potable water supply and sewage disposal facilities adequate to serve the proposed use shall
be provided. Occupancy shall not be permitted before water supplies and sewage disposal
facilities are approved and installed.
11. The applicant or successor in ownership shall pay for and authorize annual inspections for
fire suppression systems as all other commercial properties in Jefferson County by the Fire
District or County approved fire specialist.
12. A revised Geologic Hazard Assessment, prepared by Stratum Group (received November 22,
2021) was submitted in conjunction with this application. The professional geologist assessed
the risk of landslide and erosion at the subject property. Stratum Group concluded the subject
properties are not at risk from landslides or erosion, and development will not increase the
risk of landslides or erosion as long as the recommendations of the 2021 Geologic Hazard
Assessment are followed. The applicant shall follow geotechnical recommendations provided
in the 2021 Geological Hazard Assessment:
a. Grading for the road shall be done in a manner consistent with standard grading
practices and consistent with the Department of Ecology’s Stormwater Management
Manual for Western Washington for pollution prevention;
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 34 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
b. Grading and angling the road up the slope to meet desired grade shall be accomplished
particularly from the area on the northeast part of the site;
c. Stormwater from the access drive and buildings shall be fully dispersed consistent
with the Stormwater Manual and based on the size of the property, forested condition
and soil types this can be readily accomplished; and
d. For building foundations, soil bearing of 3,000 psf may be used as long as foundation
footings are placed on un-weathered glacial till.
13. PRIOR TO FINAL BUILDING OCCUPANCY, PROPONENT SHALL SUBMIT A
WRITTEN LETTER FROM THE GEOLOGIST (STRATUM GROUP) WHO PREPARED
THE GEOTECHNICAL REPORT DATED JULY, 14 2021 STATING THAT THE
STRUCTURE AND/OR FACILITIES HAVE BEEN CONSTRUCTED IN
CONFORMANCE WITH THE REQUIREMENTS OF THE "GEOTECHNICAL
REPORT." THE LETTER SHALL BE STAMPED BY THE LICENSED
GEOLOGIST/ENGINEER.
14. A Critical Areas Report and Upland Restoration Memorandum, prepared by Wet.land LLC
(dated July 22, 2022) were submitted in conjunction with this application. Two Type “Ns”
Streams and four Category IV Wetlands were delineated on or adjacent to the subject
property. Wet.land determined that no direct, permanent impacts to any wetlands, streams, or
buffers will result from the project. The applicant shall follow recommendations and best
management practices provided in the 2022 Critical Areas Report and Upland Restoration
Memorandum.
15. The applicant shall implement the 374 square foot buffer restoration plan and follow the
Mitigation Map (Figure 5) and Buffer Planting Specifications (Figures 6-7) provided in the
2022 Critical Areas Report to mitigate for Wetland E buffer impacts.
16. The applicant shall follow the 1,978 square foot restoration plan and implement the Existing
Conditions & Restoration Plan (Figure 1) and Restoration Specifications (Figure 2) provided
in the 2022 Upland Restoration Memorandum to restore temporary approach areas not
included in the proposed driveway location. The upland restoration shall occur outside of all
critical areas and shall follow a maintenance plan with contingency measures.
17. All four Category IV Wetlands will require a buffer of 50-feet for high intensity land uses.
The buffers shall be measured horizontally from the outer wetland boundary. Wetlands also
have building setbacks established. No filling, grading, clearing, or other alteration of the
wetlands or their buffers is allowed.
18. The two identified Fish and Wildlife Habitat Areas (Type “Ns” Streams), shall maintain a
vegetative buffer setback of 50 feet. The setbacks shall be measured horizontally from the
Ordinary High- Water Mark (OHWM) to all ground disturbance areas.
19. A permanent physical separation of the wetland and stream buffer areas shall be installed and
permanently maintained. The buffers shall be maintained in a natural condition.
20. The applicant shall install silt fencing or orange construction barrier fencing around the 50-ft
buffer of Wetland E and Stream 2 prior to all ground disturbance and construction activities
to ensure that the wetland and stream are not altered during road and septic system
construction. Placement of the silt fence or orange construction barrier fencing should be
located based on the location of the wetland and stream as described in the 2022 Critical
Areas Report. Wetland E and Stream 2 shall not be filled.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 35 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
21. The project shall not introduce noise, smoke, dust, fumes, vibrations, odors, or other
conditions or which unreasonably impacts existing uses in the vicinity of the subject parcel
pursuant to JCC 18.20.350.
22. The applicant shall comply with the Olympic Air Quality District and Jefferson County Fire
District to reduce or minimize smoke, fumes, and/or odors generated from retreat center
operations, passenger vehicles, commercial trucks, and construction equipment.
23. A small outdoor fire pit is proposed to located outside of the retreat center facility. The
applicant shall store sand buckets and install a water spigot adjacent to the fire pit to
extinguish potential fires. The fire pit shall only be used if winds are below 15mph and if
there are no County burn bans effective at that time. The applicant shall manage surrounding
vegetation to ensure no overhanging vegetation will be located near the fire pit.
24. The applicant shall implement best management practices to limit noise impacts to existing
uses in the vicinity of the subject parcel and to avoid any public nuisance pursuant to JCC
8.70.050. Amplification shall not be allowed on site. Per the submitted SEPA Environmental
Checklist (p. 13 - 14), the applicant shall implement the following best management practices
to manage generated noise:
a. Deliveries shall be scheduled and delivered during normal business hours (8:00 AM -
5:00 PM); b. No more than 35 guests may gather outside for team activities between
8:00 AM and 10:00 PM;
c. 15 mph speed limit signs shall be posted along the driveway to minimize noise and
protect the driveway;
d. *(left blank in Recommendation; NEW LANGUAGE added by the Hearing Examiner)
As part of final engineering, mechanical, and/or building permit reviews, the
Permittee shall submit a report from a qualified acoustical consultant or
mechanical engineer for review and approval by the Director, certifying that the
selection and placement of – i) all HVAC system equipment; ii) laundry or cooking
ventilation/exhaust fans, equipment, or vents; and iii) other mechanical features of
the project that might reasonably be anticipated to generate outdoor noise
exceeding typical background noise at the property – will be sufficient to satisfy
applicable County noise standards, particularly as heard from property
boundaries. The Director shall have discretion and authority to require
compliance with or implementation of any HVAC/Mechanical Equipment-related
best management practices or monitoring protocols recommended by the qualified
professional in order to ensure ongoing compliance with County noise standards
for the life of the project approved by this permit.
e. Construction related activities shall be limited from 7:00 AM to 10:00 PM;
f. Construction noise between 7:00 AM and 8:00 AM shall be minimized through
conducting lower noise construction activities such as staging, team meetings, plan
reviews, and material mobilization;
g. Property owner shall monitor noise and other related impacts;
h. Outdoor activities shall only occur from 8:00 AM to 10:00 PM.
i. Quiet hours at the retreat center shall be enforced between 10:00 PM and 8:00 AM;
and
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 36 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
j. Guest contracts, website language, and guest orientations shall be appropriately
implemented to emphasize the need to respect neighbors.
25. The applicant shall implement best management practices to limit dust related
impacts to existing uses in the vicinity of the subject parcel. Per the submitted SEPA
Environmental Checklist (p. 5), the applicant shall implement the following best
management practices to manage generated dust:
a. Ground stockpiles shall be covered with poly membrane in dry months and straw
during the wet months;
b. Exposed soil and storage areas shall be sprayed with water during dry periods; and
c. Construction entrances and roads shall be cleaned and maintained as weather and
construction activities dictate.
26. The applicant shall implement best management practices to limit light and glare
generated by the proposed structures. Per the submitted SEPA Environmental Checklist (p.
17 – 18), the applicant shall implement the following best management practices to manage
light and glare:
a. Outdoor safety lights shall be located lower than 20 feet and shall be aimed low;
b. Outdoor safety lights shall be shielded or recessed so that direct glare and reflections
are contained within the boundaries of the parcel;
c. Outdoor safety lights shall be directed downward and away from adjoining
properties; and
d. Roll shades shall be installed on the retreat center windows to control light glare
during night time hours.
27. The applicant is proposing 60,621 square feet of new impervious surface and 192,722 square
feet of land disturbing activities. The 2019 Stormwater Management Manual for Western
Washington (“2019 SWMMWW”) requires proponents of proposals that create more than
5,000 square feet of new impervious surface develop a Stormwater Site Plan that complies
with Minimum Requirements #1 - #9 of the 2019 SWMMWW. The applicant shall follow
the JCPW Recommendations and Public Works Department Fees Requirement sections of
the SEPA Review and Stormwater Site Plan Review and Comments Memorandum(s) dated
September 30, 2021.
28. The Stormwater Site Plan/Stormwater Plan shall follow the requirements of the Unified
Development Code (JCC 18.30.070) and the best management practices identified in the 2022
Critical Areas Report.
29. The applicant shall maintain a 50-foot landscaping buffer, as shown on the approved site plan
revised November 22, 2021, for the life span of the proposal pursuant to JCC 18.30.130(8).
The 50-foot landscaping buffer shall remain in natural condition, shall be monitored to ensure
the health of landscaping vegetation, and shall consist of a mix of primarily evergreen trees
and shrubs generally interspersed to form a continuous year-round screen that grows to at
least eight feet in height within two growing seasons pursuant to JCC 18.30.130. It is
expressly understood that this Condition mandates “Screen-A” landscaping between the
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 37 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
applicant’s property and any neighboring residential use, and that “Screen-A” landscaping is
a “full screen” that functions as a visual barrier. (See JCC 18.30.130(3)(a)). The buffers may
contain septic drainfield and reserve areas, necessary utilities, and approved road connections.
Staff will inspect the buffers to determine adequacy prior to final building permit occupancy.
No disturbance to the 50-foot landscaping buffer shall occur without review and approval by
the Jefferson County Department of Community Development.
30. Walking trails shall not disturb the 50-foot landscaping buffer as shown on the approved site
plan revised November 22, 2021.
31. All proposed signs shall adhere to sign standards in JCC 18.30.150.
32. Per the submitted SEPA Environmental Checklist (p. 14 - 17), the applicant shall implement
the following best management practices to manage on-site property signs:
a. The directional sign shall not obstruct the line of sight along Oak Bay Road;
b. Per JCC 18.30.150(h), the sign shall not exceed 4 feet in height and 8 feet in width
(32 square feet);
c. Sign light fixtures illumination shall be shielded and directed in a manner not to
adversely affect neighboring properties or create a hazard to on-coming Oak Bay Road
traffic; and
d. The applicant shall professionally survey the southern property line to define
property boundaries and shall clearly mark every 50 feet with no trespassing signs to
inform guests of adjacent private properties.
33. An approved Road Setback Variance Permit from the Jefferson County departments shall be
required prior approval of the building permit application and prior to installation of any
commercial sign within the 20-foot setback of the Oak Bay Road right-of-way.
34. The applicant states within 10 years after opening the business, they expect an average of 16
guests per day. The applicant is required to encourage car-pooling or transport services to
reduce parking demand sufficient to meet on-site parking capacity.
35. The retreat center shall provide at least one space dedicated to ADA/handicapped compliance
pursuant to JCC 18.30.100(1)(b). Parking spaces for physically handicapped needs shall
comply with the current ADA Design Guide, Department of Justice, Disability Rights
Section.
36. The applicant shall demonstrate compliance with assessable design requirements for the
construction of lodging facilities that apply to the design of ADA hotel rooms.
37. Lodging operators shall not allow any person to occupy overnight lodging on the premises
for more than three months in any year pursuant to JCC 18.20.350(9)(c).
38. New residential development shall not be permitted pursuant to JCC 18.20.350(9)(d). New
residential development includes the subdivision or sale of land for year-round or second-
home residential housing that is owner-occupied or rented.
39. All contractors and personnel shall be familiar with the inadvertent discovery plan as attached
to this permit. If any possible historic, archaeological and/or cultural artifacts are
inadvertently discovered, the applicant shall immediately stop all work on the project and
shall notify the Washington Department of Archaeology and Historic Preservation, Jefferson
County Department of Community Development, and affected tribes.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 38 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
40. For project adjacent or within 500 feet of Forest Land/Agricultural Land: Jefferson County
has determined that the use of real property for agriculture and forestry operations is a high
priority and favored use in the county. The county will not consider to be a nuisance those
inconveniences or discomforts arising from such operations, if such operations are consistent
with commonly accepted best management practices in compliance with local, state, and
federal laws. If your real property includes or is within five hundred (500) feet of real property
designated as Rural Residential 1:10 or 1:20, Rural Industrial, Rural Commercial,
Agriculture, or Forestry, you may be subject to inconveniences or discomforts arising from
such farming and forestry operations, including but not limited to noise, tree removal, odors,
flies, fumes, dust, smoke, the operation of farm and forestry machinery during any 24-hour
period, the storage and disposal of manure, and the application of permitted fertilizers and
permitted pesticides. One or more of these inconveniences may occur as a result of
agricultural and forestry operations which are in conformance with existing laws and
regulations.
41. Any modifications, changes, and/or additions to the stamped, approved site plan dated August
31, 2022 shall be resubmitted for review and approval by Jefferson County Department of
Community Development. Proposed changes may require modifications to the conditional
use permit.
42. Pursuant to JCC 18.40.560, this conditional use permit automatically expires and becomes
void if the applicant fails to file for a building permit or other necessary development permit
within three years of the effective date (the date of the decision granting the permit) of the
permit unless the permit approval provides for a greater period of time. Extensions to the
duration of the original permit approval are prohibited. The Department of Community
Development shall not be responsible for notifying the applicant of an impending expiration.
43. Pursuant to JCC 18.40.580, a conditional use permit granted under Article VIII of JCC
Chapter 18.40 shall continue to be valid upon a change of ownership of the site, business,
service, use or structure that was the subject of the permit application. No other use is allowed
without approval of an additional conditional use permit.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – DENYING SEPA APPEAL AND
APPROVING CONDITIONAL USE PERMIT FOR A
SMALL-SCALE RECREATIONAL RETREAT
CENTER – FILE NO. MLA21-00066
Page 39 of 39
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET
PORT TOWNSEND, WA 98368
Final Decision,
Request for Reconsideration or Clarification,
Appeal Rights
The Hearing Examiner is authorized to issue Final Decisions for matters listed in JCC 2.30.080(2).
Decisions of the Hearing Examiner may be subject to a request for reconsideration or clarification, by parties with standing
and in the time and manner specified in the Jefferson County Hearing Examiner Rules of Procedure, including without
limitation HEx Rules 6.5 and 6.6.
Final Decisions of the Hearing Examiner are subject to appeal as explained in HEx Rule 6.7, and JCC 18.40.340, which
reads as follows:
(1) Time to File Judicial Appeal. The applicant or any aggrieved party may appeal from the final decision of the
administrator or hearing examiner to a court of competent jurisdiction in a manner consistent with state law. All
appellants must timely exhaust all administrative remedies prior to filing a judicial appeal.
(2) Service of Appeal. Notice of appeal and any other pleadings required to be filed with the court shall be served
by delivery to the county auditor (see RCW 4.28.080), and all persons identified in RCW 36.70C.040, within the
applicable time period.
(3) Cost of Appeal. The appellant shall be responsible for the cost of transcribing and preparing all records ordered
certified by the court or desired by the appellant for the appeal. Prior to the preparation of any records, the appellant
shall post an advance fee deposit in an amount specified by the county auditor with the county auditor. Any
overage will be promptly returned to the appellant.
State law provides short deadlines and strict procedures for appeals and failure to timely comply with filing and service
requirements may result in dismissal of any appeal. Persons seeking to file an appeal are encouraged to promptly review
appeal deadlines and procedural requirements and confer with advisors of their choosing, possibly including a private
attorney.