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HomeMy WebLinkAbout096 Email - Applicant SubmittalJan 03 2023 Exhibit 96 Page 1 of 22 Exhibit 96 Page 2 of 22 KETTER, SHEPPARD & JACKSON, LLP ATTORNEYS AT LAW 50 116TH AVE SE, SUITE 201 BELLEVUE, WA 98004 DAVID E KETTER KENNETH A. SHEPPARD JAMES A. JACKSON _________________ Of Counsel ANDREW D. SHAFER, P.S. PHONE: (206) 382-2600 FAX: (206) 223-3929 January 3, 2023 Ms. Donna Frostholm Jefferson County Department of Community Development 621 Sheridan Street Port Townsend, WA 98368 Re: Site Address 1160 Shine Road Case# MLA19-00036 Dear Ms. Frostholm, This is in response to your letter of October 13, 2022 concerning the above matter. BDN’s responses are set out in the following paragraphs which correspond to the paragraph numbers in your letter. 1. Use of Upland Parcel 970200001. As noted in the revised SEPA Checklist Addendum M-1, transmitted to you on May 7, 2021, this parcel, owned by Jim Smersh, will now be used solely as a limited secondary parking area for activities related to the operation of the proposed aquaculture project, involving parking of one or two passenger vehicles or light trucks on the parcel for 1-2 hours once weekly for regular beach inspections of geoduck gear, and the possible parking of one or two passenger vehicles or light trucks on the parcel in connection with emergency responses per the applicable Gear Management Plan. From prior BDN experience in the area, such emergency responses occur on less than five days per year, typically in the winter and sometimes at night. Access to this parcel will be only by the existing gravel roadway that runs from the adjoining Parcel 970200002, which is clearly depicted on Addendum M-1. Jim Smersh owned both parcels 97020001 and 0002 from 1991 until November of 2009, and the roadway has existed since then and has been continuously used for such access by Mr. Smersh both before and after the sale in 2009. Google Earth Imagery from 1990 clearly shows this road: Exhibit 96 Page 3 of 22 January 3, 2023 Page 2 KETTER, SHEPPARD & JACKSON, LLP In 1994 Mr. Smersh surveyed the property, clearly denoting the gravel road on Lot 2 (County Record 368285): Exhibit 96 Page 4 of 22 January 3, 2023 Page 3 KETTER, SHEPPARD & JACKSON, LLP On November 18, 2009, Mr. Smersh sold Parcel 970200002 to Bruce and Deborah Olsen, specifically subject to all exceptions and easements of record contained in the Deed. (See Attachment A.) The property description recorded as a part of the Deed specifically describes the 12’ gravel road as an exception to the conveyance. (It also discloses the previously referenced easement and road maintenance agreement mentioned in your letter, Recording No. 378280, as affecting the property, though it is indeed unclear exactly how that easement affects parcel 97020001.) Mr. Smersh has the legal right to use the road to access parcel 97020001 in connection with this project. The purchasers of parcel 970200002 from Mr. Smersh, Bruce and Deborah Olsen, are not restricting or challenging that use in any way (even were they entitled to do so, which they are not.) Both parcels are zoned Rural Residential. The proposed use of both parcels falls clearly within the category of “agricultural use” as defined in Jefferson County Code Chapter 18.15.040 and 18.20.030. (“Agricultural activities are considered a matter of right and not subject to land use permits or approval from the administrator.”) Parking and storage of agricultural materials and equipment without the construction of associated buildings are specifically allowed as an accessory use. (JCC 18.20.030 (3).) JCC 18.15.040 specifically states that “Aquaculture uses and activities (outside of shoreline jurisdiction) are permitted on properties zoned Rural Residential. Therefore, the use of this access road does not require a Conditional Use Permit or any other County approval or condition in connection with this application. As is stated in JCC 18.22.240, the Jefferson County Critical Areas Ordinance as revised in 2009, “(1) Any legal use or legal structure in existence on the effective date of this chapter that does not meet the critical area or critical area buffer requirements of this chapter for any designated critical area shall be considered a legal nonconforming use.” There is no basis for the County to require that Mr. Smersh record a Boundary Line Adjustment conveyance deed, submit a road approach application to Jefferson County Public Works, or submit a revised stormwater calculation worksheet to DCD in connection with this proposed access. Applicant proposes that use of this existing gravel road be specified in the Conditional Use Permit as the only permissible access to Parcel 970200001 in connection with the proposed project. Should the situation change such that BDN is prevented from using that existing road and must propose some other access to the Parcel, the matter would properly be addressed by the County at that time. 2. Boat Moorage on Parcel 821334011. This small upland parcel is located about .6 miles to the west of the proposed project. Boats that had previously been moored at or near this parcel were used in connection with harvesting activities on the adjacent aquaculture project NWS-2017-230-AQ. Exhibit 96 Page 5 of 22 January 3, 2023 Page 4 KETTER, SHEPPARD & JACKSON, LLP On August 29, 2022, that project was granted a Standard Individual Permit by the Corps of Engineers, valid through 2034, for continued aquaculture operations at that location. That permit governs the use and mooring of vessels at that project and on Parcel 821334011 in connection with the permitted activities. There are no plans to moor any vessels used in connection with the 1160 Shine road project #MLA19-00036 on or near Parcel 821334011. It was thought for a time that for NWS-2017- 230-AQ harvest activities it would be more fuel and labor efficient to moor vessels at that location and offload the harvested geoducks via Parcel 821334011. It was ultimately determined, however, that due to the labor and logistics involved with this method it was actually less efficient to leave harvest vessels moored at that location. So current practice for NWS-2017-230-AQ, and the plan for this proposed project is to not moor vessels or offload harvested geoducks via parcel 821334011. 3. Planting Area. The planting area has never been defined as precisely 5.15 acres. In both the JARPA (Paragraph 6e) and the SEPA Checklist (Paragraph A-11) it is defined as follows: “BDN proposes to cultivate Pacific geoduck (Panopea generosa). The planting area will consist of approximately 5.15 acres, generally between approximately +2 ft. MLLW and a 5-meter (16.4 ft.) buffer of the native eelgrass (Zostera marina) bed edge, located between approximately -1MLLW and -2 MLLW.”(Emphasis Supplied.) It is difficult to predict the exact available total planting area at any point in time because planting is prohibited within 5 meters of eelgrass existing at the time of planting. Seasonal and annual variations in the eelgrass beds are to be expected. Christiaen et al, Puget Sound Seagrass Monitoring Report - Monitoring Year 2018 – 2020, Nearshore Habitat Program, Aquatic Resources Division, Washington Department of Natural Resources (2022): “Eelgrass, the predominant seagrass in greater Puget Sound, can be characterized as an opportunistic species. It may appear stable on a regional scale, but shows significant variability at smaller spatial scales, with adjacent sites sometimes exhibiting opposite trends over time (Shelton et al. 2016, Christiaen et al. 2019). Eelgrass is variable on seasonal and interannual timescales, and can be impacted by long-term patterns in environmental drivers such as the El Nino Southern Oscillation (Thom et al. 2014). As such, it is important to consider multiple temporal and spatial scales when using eelgrass as an indicator for ecosystem health.” Exhibit 96 Page 6 of 22 January 3, 2023 Page 5 KETTER, SHEPPARD & JACKSON, LLP Comparing the 2018 and 2022 Eelgrass studies for this project shows a difference of approximately .20 acres in the eelgrass beds – i.e the 2022 study shows an increase in the beds of about .20 acres, which would reduce the 5.15 acre planting area to 4.95 acres. However, planting will not occur at this location until at least a year after the 2022 study, and the available acreage will probably vary from either figure at the time of planting. Instead of using a specific figure of 4.95 acres, we propose that the project area be re-defined for purpose of this application as “up to 5.15 acres, generally between approximately +2 ft. MLLW and a 5-meter (16.4 ft.) buffer of the native eelgrass (Zostera marina) bed edge…” (emphasis supplied.) 4. Barrier System. BDN’s position on the potential use of a barrier system has evolved as BDN has gained experience with the management of tube escapement at the BDN tracts to the east of the proposed site. First, it has been found that the geoduck life cycle very much influences the timing and extent of tube escapement. Plantings typically occur in the spring or summer. The baby geoducks dig down within the planting tubes, feed during the summer, and then become dormant in the fall. Then in December through February they become active again, pushing their siphons upward to purge themselves even though they are not feeding. In the nearby existing NWS-2017-230-AQ tracts BDN originally planted four geoduck seed in each planting tube. This was done based on expected survival rates of 25% to 50% as had been experienced in aquaculture projects in more distant areas. BDN found, however, that the survival rate was higher in its Squamish Bay plantings, being more on the order of 75-100%. This high survival rate did not cause any tube escapement problems in the first 18 months after planting. During the first overwintering of the planted seed, all geoducks planted within a tube were still so small that they could all purge themselves without dislodging it. This held true through the subsequent spring and summer; the growing geoducks were still small enough that they could feed without dislodging the tube. When they became dormant in the fall, of course, they did not dislodge any tubes. Problems began to appear, however, in the winter of the second year, about 18 months after planting. By that time the geoducks had grown sufficiently such that frequently there were now four juvenile geoducks distributed in the area beneath their original planting tube. They began to dislodge the tubes when all four geoducks attempted to purge themselves. Since the planting tubes are typically removed approximately 2 years after planting, when the geoducks are deep enough to no longer need predator protection, the tube escapement issue was a problem only for about six months – i.e. from the time the geoducks began to purge themselves in the second winter until the tubes were pulled the following June. BDN found, however, that there was no such tube escapement where less than four of the geoducks planted in a tube had survived. With three or fewer geoducks beneath a tube they Exhibit 96 Page 7 of 22 January 3, 2023 Page 6 KETTER, SHEPPARD & JACKSON, LLP could feed and purge simultaneously without dislodging the tube. That is why BDN has proposed planting only three seed in a tube. Good survival and density is still achieved with tube escapement being eliminated or drastically reduced during the narrow window when it had been a problem. Though BDN believes tube escapement on the proposed planting will be minimal with three seed planted in each tube and regular beach patrols, escapement control could be supplemented if needed by a barrier system during the six month window for potential escapement. Since prevailing winds and currents at the project site typically move from east to west, any barrier to enhance tube escapement control would best be installed along the western edge of the planting area. The barrier system envisioned by BDN would consisted of a 12 to 18 inch tall green vinyl 4” mesh fence supported by “earth anchors”, which are approximately four foot long ¾” diameter galvanized rods with rounded eye bolt tops and a spiral bottom plate and that allows them to be securely fastened into the beach at any desired height, but easily removed. Such a barrier would be installed along the western edge of the tract slightly to the east of the Hicks Park rock jetty, extending at a maximum from the beach to the southwest corner of the planting area for a six month period if needed. This configuration would not pose a hazard to any persons or vessels using the waters over the Smersh parcel at high tide, which is the only time such use is permitted. However, BDN believes that the three-seed-per-tube limit, when coupled with the barrier formed by the existing Hicks park jetty and the frequent and regular beach patrols proposed by BDN, will adequately control tube escapement without the need for such a barrier. If, however, the County elects to make such a barrier a condition of the permit, BDN has no objection to using such a barrier for the limited period of 18-24 months after planting, with all tubes being pulled at the conclusion of that period. 5. Vegetation Screening. A. Parcel 970200001 (See Attachment B for plan view and photos.) As noted above, this parcel will be used solely as a limited secondary parking area for activities related to the operation of the proposed aquaculture project, involving parking of one or two passenger vehicles or light trucks on the parcel for 1-2 hours once weekly. JCC 18.30.130, which governs landscape screening for commercial and industrial land uses, provides at paragraph (6) as follows: “(6) Landscaping for Parking Lots. Landscaping shall be provided for commercial, industrial, small-scale recreational and tourist uses, and Exhibit 96 Page 8 of 22 January 3, 2023 Page 7 KETTER, SHEPPARD & JACKSON, LLP multifamily residential use surface parking lots, with five or more parking stalls, as follows: (a) Screening shall be provided on each side, front, and/or rear of a parking lot where such side, front, and/or rear abuts any residential use or district, except that no screening is required where the elevation of the parking area lot line is four feet higher than the finished elevation of the parking area surface.” (Emphasis supplied) BDN is willing to have its permit conditioned upon no more than four vehicles at a time parking on Parcel 970200001, and no other commercial activity of any kind being conducted there, including storage of any harvest materials or gear. Consequently, it is BDN’s position that no “Screen-C” landscaping is required for this parcel. B. Parcel 821344964. (See Attachment C for plan view and photos.) As can be seen from the aerial view and photos in Attachment C, storage of materials is occurring only on the northern 75 feet of this lot, and BDN is willing to have its permit conditioned on no storage of materials occurring on any other portion of the lot, and also restricting parking anywhere on the property to no more than four vehicles at any time. The northern end of the lot, which abuts the highway, has a 40’ buffer of evergreen and deciduous trees that visually blocks any view from the highway. (See photo 5.) There are only three houses that could potentially see any of the northern 75’ of the property where storage or parking will occur. Photo 3 shows the view from the property looking at the northern of the two houses to the west of the lot. As can be seen, the topography is such that there is no view of the storage area from that house, which is downhill from the property. The same is true for the house further south along the western property line, which is additionally screened from view by existing vegetation. Thus, the eastern property line is the only border that is not currently naturally screened from adjoining houses. The owner of the house along the eastern property line is the party who sold parcel 821344964 to BDN. As can be seen from Photo 2, the view to the south and southwest from that house encompasses part of Squamish Bay. Planting of a visual barrier along that eastern property line, especially if it were extended to the south of that house, would block that view when the vegetation matures, which seems to be a counterproductive result for that owner. If the County still feels that screening vegetation along that line may be appropriate, BDN suggests that this resident be contacted by the County to determine if, as seems highly likely, they would prefer no such screening. To the extent that “Screen-C” planting along part or all of that eastern property line is ultimately required, BDN will of course comply by planting a barrier of Thuja “Green Giant”, initial height 5-6 feet, spaced on five foot centers. (See below photo.) This planting will meet Exhibit 96 Page 9 of 22 January 3, 2023 Page 8 KETTER, SHEPPARD & JACKSON, LLP the above-referenced “Screen-C” landscaping requirements. BDN sincerely believes, however, that the requirement of Screen-C landscaping would actually be counterproductive on this project. Thuja “Green Giant” I believe the above responses address all of the questions and requests for additional information posed in your letter. Please feel free to contact me, however if you require anything else. Sincerely, Ken Sheppard Attorney for BDN, LLC Exhibit 96 Page 10 of 22 Attachment A Case# MLA19-00036 BDN, LLC Attachment A - Page 1 Exhibit 96 Page 11 of 22 Attachment A - Page 2Exhibit 96 Page 12 of 22 Attachment A - Page 3 Exhibit 96 Page 13 of 22 Attachment A - Page 4Exhibit 96 Page 14 of 22 Screening Analysis Parcel 970200001 – Page 1 Attachment B BDN, LLC CASE #: MLA19-00036 Screening Analysis – 12/15/22 Parcel 970200001 - See following pages for corresponding numbered photographs. Photo 1 - Photo 2- Photo 3- - Photo 4 Photo 5 - Exhibit 96 Page 15 of 22 Screening Analysis Parcel 970200001 – Page 2 Photo 1 – Looking North along West property line. Photo 2 – Looking south along east property line towards Shine Road. House on the left is 1254 Shine Road, which is across Shine road from the southern property line. Exhibit 96 Page 16 of 22 Screening Analysis Parcel 970200001 – Page 3 Photo 3 – Looking East with North boundary line of the lot to the left. Photo 4 – Looking North with Eastern boundary of the subject property to the left. Exhibit 96 Page 17 of 22 Screening Analysis Parcel 970200001 – Page 4 Photo 5 – Looking at the Northern Boundary of the property. Note the 4’ plus elevation difference between the lot boundary and the parking area. Exhibit 96 Page 18 of 22 Screening Analysis Parcel 821344964 – Page 1 BDN, LLC CASE #: MLA19-00036 Screening Analysis – 12/15/22 Parcel 821344964 See following pages for corresponding numbered photographs. Photo 1 - - Photo 2 Photo 3 - - Photo 4 - Photo 5 Exhibit 96 Page 19 of 22 Screening Analysis Parcel 821344964 – Page 2 Photo 1 – Looking East from North End of Lot Photo 2 – Looking South along West property line Exhibit 96 Page 20 of 22 Screening Analysis Parcel 821344964 – Page 3 Photo 3 – Looking Southwest towards adjacent property Photo 4 – Looking West from North end of lot Exhibit 96 Page 21 of 22 Screening Analysis Parcel 821344964 – Page 4 Photo 5 – Looking North along East property line. Exhibit 96 Page 22 of 22