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HomeMy WebLinkAboutLog162 --- ~ y n ir T( cc 10. .. . Page 1 of3 I rsarbara Nightingale From: powers & Therrien [powers_therrien@yvn.coml Sent: Monday, October 02, 20061:54 PM To: Barbara Nightingale Cc: powers & Therrien; LewisHale@ao1.com; Rick Rozzell; Elizabeth Van Zonneveld Subject: SEPA Compliance Barbara: I am confused. Your reference to the threshold detennination refers to that issued under SUB05-0004. That application was not approved by Jefferson County and, indeed, the conclusion of the Staff Report upon which the MDNS for that application issued was rejected by AHE Galt in his opinion constituting the final decision of Jefferson County. By reference to the appeal period relating to SUB05-0004, you appear to take the position, contrary to the June notice you sent to me and governmental agencies inviting SEP A comments, either that the project is categorically exempt or that SEP A compliance obtains by reference to the MDNS issued in connection with SUB05-0004. I reviewed WAC 197-11-305 and 197-11-800. 1 find no basis for a categorical exemption for this project. While you may indeed adopt documentation of a prior threshold detennination in certain instances, 1 have not seen evidence that the procedures set forth in WAC 197-11-600 have been adopted or followed. Specifically, reference is made to WAC 197-11-600(3)(b)(ii) which provides that "for DNS and E1S, preparation of a new threshold detennination or supplemental E1S is required if there are::.."new infonnation indicating a proposal's probable significant adverse environmental impact. (This includes discovery of misrepresentation or lack of material disclosure.)." It seems to me that reliance upon a conclusion in the Staff Report that is based upon the position advocated by the applicant that the proposed use is residential that has been vitiated and overturned by the appellate hearing examiner and the conclusion of the appellate hearing examiner that the proposed use is a nonresidential use meets the "new infonnation" test, either under the first sentence or the parenthetical. It is unnecessary that the infonnation upon which the original threshold decision be intentionally misleading or incomplete; it only needs to be in fact misleading or incomplete. Clearly, that test is here met. This is even more clear by reference to Mr. Stewart's letter from the DOE where he raised the issue of prohibited commercial use, an issue which was ignored based upon jurisdictional considerations even though it is clear that Mr. Stewart's concern relates to the differences in intensity of use represented by residential and nonresidential use. JCC 18.40.750(1) and (3)(d) provides no support for a conclusion of categorical exemption. JCC 18.40.750(4) merely pennits the use of existing documents; it does not suggest that those documents may be adopted without reference to notice and a chance to the public to be heard on the decision to use same. Where 1 have already objected to this procedure, I must ask that you identify the authority on which you base your conclusion that 1 cannot appeal a decision to issue an MDNS to MLA06-00221 based upon documentation prepared in connection with the decision to issue an MDNS for SUB05- 0004, particularly where you have solicited my opinion thereon with government agencies and 1 have repeatedly raised objections thereto. ~TEM 1 am troubled that DCD would adopt such a questionable view~ ~<.Jt>;d .IlY lights as a Page [ of-: 10/9/2006 I -Of ':;) - . . Page 2 of3 , 'llJember of the public to be heard on a proposal that 1 have repeatedly raised objections to on substantive imd legal grounds. One could easily conclude that Jefferson County wishes to join with the applicant in Stifling views that are not compatible with the views or goals of the applicant or perhaps Jefferson County. I don't see how a substantive conclusion that Trend West is a nonresidential use not permitted in an area that you have admitted is zoned for single family residences can be changed by a legislatively adopted change in definitions. If Jefferson County concluded that a small hide rendering plant is a cottage industry would make it so. What about all ofthose in the residential neighborhood that might have reason to question such use. The problem is that Jefferson County is trying to hide prohibited spot zoning to permit a legally impennissib1e use without regard to the interests of other affected property owner or even the procedure applicable to zoning changes. I More to the point, environmental issues applicable to a hide rendering plant are the same whether Jefferson County defines the use as a cottage industry or not. It is this latter issue that is before us. Jefferson County has concluded that the proposed Trend West use is a nonresidential use not permitted in an area zoned single family. While it can change zoning, it cannot change the conclusion that it reached. Nor can it change the effect of the conclusion on environmental compliance. The conclusion substantively vitiates the Staff Report upon which the MDNS for SUB05-0004 was issued. That is a fact. The legislature may be able to change the legal effect of a fact under certain circumstances and assuming that it follows proper procedures; it cannot change the effect of the fact as a matter that requires review of a threshold decision that is based upon conclusions conflicted by the fact. Whether or not I appealed in 2005 to an MDNS issued against SUB05-0004 is unrelated to my right to appeal an MDNS, even one based upon identical findings, that supports MLA06-00221 in 2006. 1 request evidence that Jefferson County has made a threshold decision as to MLA06-00221 and that it has properly noticed persons from the community, including me, of their appeal rights. Absent such proof, I will be forced to raise Jefferson County's lack of compliance with SEPA's threshold determination and notice requirements administratively and judicially at significant cost and delay to Jefferson County, the applicant, and me. To avoid the kind of delays and costs associated with the SSDP approved by Jefferson County in connection with SUB05-0004 without final decision and vitiated by the Shoreline Hearing Board and in keeping with the additional time that Jefferson County gave to the applicant to cure a notice issue to the detriment of members of the community, including me, who had arranged their schedules to appear at the hearing, 1 ask that Jefferson County evidence compliance or comply with the requirements of SEP A in connection with MLA06-00221. Your attention to this matter is appreciated. Les Powers & Therrien, P.S. 3502 Tieton Drive Yakima, WA 98902 Phone: 509-453-8906 Fax: 509-453-0745 This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. Section 2510-2521 and is legally privileged. This message and any attachments hereto is intended only for the use of the person named above. If you are not that person, you are hereby notified that any dissemination, distribution or copying of this email message other than to the addressee is strictly prohibited. If you have received this message in error, please immediately notify the sender and delete this email from your computer. To ensure compliance with requirements imposed by the IRS, we inform you that an' contained in this communication was not intended or written to be used, and IInn'ot ~& ffllllI~l.tax advice V~~,J ~e purpose of (i) Page rv- of S 10/9/2006 . . Page 3 of3 avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to . aTlOther person any tax-related matter. # Page LOG ITEM (&Z-, -; of:; 10/9/2006