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HomeMy WebLinkAboutSouthard Type III Full Release of 6 year development moratorium, FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING FULL RELEASE FROM MORATORIUM – SOUTHARD PROPERTY, FILE NO. MLA22-00065/FPA2022-00001 Page 1 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 “Full Release” from a 6-year development moratorium set to expire in December of 2023, originally placed on property in connection with timber harvest on the site, which is subject to a Type III quasi- judicial process before the Hearing Examiner, submitted by: CHARLES AND HEATHER SOUTHARD, Applicants/Property Owners (Location: a10.3-acre site located inland to the east of Discovery Bay, south of 4 Corners Road, addressed as 155 Night Owl Road, Parcel No. 001334021, in unincorporated Jefferson County) _________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) File Nos. MLA22-00065 and FPA2022-00001 FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION APPROVING FULL RELEASE FROM MORATORIUM I. SUMMARY OF DECISION. The applicants presented a preponderance of evidence establishing that their pending application merits approval, subject to conditions. II. BACKGROUND. There is no dispute that the 10+ acre property at issue in this application is subject to a six-year development moratorium set to expire in December of 2023, based upon approval granted to a previous property owner in late 2017 allowing for the harvest of timber on about 9-acres of the site. (Staff Report, page 8). The current property owners, Charles and Heather Southard, purchased the property in April of 2018, after the timber harvest occurred, and claim that they were unaware of the development moratorium. In any event, County Codes allow parties to seek a “Full Release” of such development moratorium through a Type III quasi-judicial process before the County’s hearing examiner. (See JCC 18.20.160(5)(c)(iii)). FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING FULL RELEASE FROM MORATORIUM – SOUTHARD PROPERTY, FILE NO. MLA22-00065/FPA2022-00001 Page 2 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 III. APPLICABLE LAW. As noted above, the applicants’ request for a Full Release of the current development moratorium placed on their property is subject to a Type III quasi-judicial process, and the County Code vests the Hearing Examiner with jurisdiction and authority to hear and issue final decisions on applications for Type III land use decisions. (See 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; and JCC 18.20.160(5)(c)(iii)). 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 Helena Smith, listed as Ex. 1 below, for the Hearing Examiner, with 17 pages, and the following list of other exhibits included in the project file for this matter: FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING FULL RELEASE FROM MORATORIUM – SOUTHARD PROPERTY, FILE NO. MLA22-00065/FPA2022-00001 Page 3 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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. The following persons provided testimony under oath as part of the record during the open-record hearing held on February 17, 2023. 1. Helena Smith, Assistant 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, highlighting applicants’ plans to re-forest areas not being developed with the new home, and how the applicants will comply with the County’s inadvertent discovery plan during ground disturbance work; 2. Charles Southard, owner of the property at issue, the applicant, accepted the Staff Report analysis and recommended conditions of approval without any objection or requests for changes. No individuals or organizations submitted written comments or testimony before or during the public hearing in opposition to the pending request. // // FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING FULL RELEASE FROM MORATORIUM – SOUTHARD PROPERTY, FILE NO. MLA22-00065/FPA2022-00001 Page 4 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 II. 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 that are deemed to be findings of fact are incorporated by reference into this section as findings of fact issued by 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 Type III quasi-judicial hearing process is for a “Full Release” of a mandatory six-year development moratorium placed on the subject property after a previous owner obtained a Forest Practices Application (FPA) timber harvest approval from the state Department of Natural Resources (DNR). (Staff Report, page 1, Background Summary). 3. Under JCC 18.60.160(4)(b), captioned “Mandatory Six-Year Development Moratorium,” for six years after the date of an FPA timber harvest application, “the county shall deny any and all applications for permits or approvals, including building permits and subdivision approvals, relating to or for nonforestry uses of land subject to the application (RCW 76.09.060(3)(b)(i), (ii), and (iii)).” 4. JCC 18.20.160(5)(c) provides potential relief from the mandatory six-year development moratorium as follows: (iii) A “full release” from a moratorium shall be subject to a Type III quasi-judicial process; and (iv) A release of development moratorium is subject to the following findings: (A) The person requesting the release did not attempt to avoid the county review or restrictions of a conversion forest practices application, as evidenced by a transfer of property; (B) Critical areas and their buffers, and shoreline area as set forth in this code and the shoreline master program were not damaged in the forest practice operation, or that any such damage is repairable with restoration; and (C) Corrective action can be undertaken to provide for compliance with applicable conversion standards established by this section. 5. The Staff Report explains that the current landowners, Charles and Heather Southard, FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING FULL RELEASE FROM MORATORIUM – SOUTHARD PROPERTY, FILE NO. MLA22-00065/FPA2022-00001 Page 5 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 the applicants in this matter, acquired their property on April 4, 2018, after a timber harvest took place. One of the previous landowners, Daniel Hay, applied for the FPA Harvest application, which was approved on December 27, 2017. Jefferson County placed a development moratorium on the property, which expires on or about December 27, 2023, after receiving notification from the Department of Natural Resources of the approved Class II (non-conversion class) FPA. On December 19, 2017, Daniel Hay sold the property to Cedarland Forest Resources LLC, which harvested approximately nine acres of timber. On April 4, 2018, Cedarland Forest Resources LLC sold the property to current owners Charles and Heather Southard. It appears as though the applicants claim that they did not know that the property was under a moratorium – but were notified of the moratorium – at some point after they purchased the property. (Staff Report, page 8). 6. Any legal claims that the applicants might have related to their lack of knowledge about the existing development moratorium on their property should not be directed at the County or any of its agents, but instead the current owners’ title company or seller, both of whom knew or should have known about the moratorium imposed on the property after timber was harvested on the site. A mandatory moratorium under County codes and state law is not a casual matter, and a release from the terms of such moratorium is discretionary, not a matter of right. In other words, the County is not required to shorten or withdraw an FPA-related moratorium until such time as its term expires. 7. In this application for a Full Release of the existing moratorium, equitable considerations, however compelling, true, or viable – including without limitation “innocent landowner” arguments – are not listed among the applicable approval criteria and do not provide any basis to approve such request. Washington case law has long established that a Hearing Examiner only holds specific authority and jurisdiction over matters as specified in ordinances and resolutions adopted by the local government. The Jefferson County Code does not grant explicit or implied powers for any hearing examiner to grant equitable relief to landowners who claim they were unaware of a forestry-related development moratorium until after they purchased their property. See Chaussee v. Snohomish County Council, 38 Wn.App. 630 (Wash. Ct. App. 1984)(A hearing examiner lacked jurisdiction to consider the issue of equitable relief; the Court ruled that the Examiner had no discretion to exempt a landowner from specific code requirements based on possible equitable considerations). 8. Fortunately, for this applicant, the record shows that the applicants can satisfy applicable criteria for approval, subject to appropriate conditions of approval. 9. The applicants’ property is a mostly unimproved, 10.3-acre site, located inland to the east of Discovery Bay, south of 4 Corners Road, addressed as 155 Night Owl Road, Parcel No. 001334021, in unincorporated Jefferson County. 10. The Southards hope to develop their property, which was previously used for forestry FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING FULL RELEASE FROM MORATORIUM – SOUTHARD PROPERTY, FILE NO. MLA22-00065/FPA2022-00001 Page 6 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 operations, with one single-family residence and associated utilities. (Staff Report, page 6). 11. There is no dispute that such proposed development qualifies as a conversion of land from a previous forestry use to a non-forestry use. 12. The Staff Report credibly explains that the applicants’ parcel is designated as Rural Residential (RR) 1:20, with all surrounding parcels zoned either RR 1:5 [one dwelling unit per five acres] or RR 1:20 [one residential unit per twenty acres]. (See Staff Report, on page 3). 13. As explained in the procedural summary and details provided on pages 3-5 of the Staff Report, this application has been subject to a thorough review process, with ample public notice and opportunities for members of the public and relevant agencies to offer comments. Written comments from agencies received before the public hearing are credibly summarized and addressed in the Staff Report. The Department did not receive any written comments from neighboring property owners or other members of the public. No one offered written comments or testimony at the public hearing questioning or opposing the pending application. No one submitted evidence or testimony to rebut the analysis and findings in the Staff Report, which establishes how the pending application satisfies applicable codes and requirements and merits approval, subject to appropriate conditions. 14. Most significantly, as explained in the unrebutted Staff Report, proposed conversions of land from forestry to non-forestry use require environmental review under County and State SEPA regulations. (Staff Report, page 3, citing JCC 18.20.160, re: Conversions of Land to Non-forestry Use). The original timber harvest occurred under a Class III Forest Practices Permit (FPA Number 2615192). The current owner requests the area be removed out of forestry use and converted to a non-forestry use. SEPA review is required for “Lands that have been or are being converted to non-forestry use,” per JCC 18.20.160(4)(a) and (b)(i). Consistent with JCC 18.40.780, and in accord with WAC 197-11-355, DCD Staff followed the optional DNS process. The SEPA Responsible Official issued a Final Determination of Non-Significance (DNS) on November 29, 2022. No one appealed the SEPA DNS issued for this application, so the DNS stands as issued for purposes of issuing this Decision. (Staff Report, SEPA review summary on page 3). 15. The Staff Report credibly explains how the applicants’ request, as conditioned, will comply with all applicable County Comprehensive Plan goals and policies and County development codes, including without limitation those addressing Critical Area protections, stormwater requirements, right to farm and forestry provisions, protection of cultural resources, and the like. (Staff Report, pages 5-16). FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING FULL RELEASE FROM MORATORIUM – SOUTHARD PROPERTY, FILE NO. MLA22-00065/FPA2022-00001 Page 7 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 Jefferson County Comprehensive Plan. 16. As credibly explained in the detailed Staff Report, prepared by Assistant Planner, Helena Smith, this request for a Full Release from the current FPA moratorium is subject to applicable provisions of the Jefferson County Comprehensive Plan (“Comprehensive Plan”), including without limitation the following goals and policies that relate to maintaining rural character and encouraging the continuation of forest practices. Additional findings, derived from the unrebutted discussion and analysis included on pages 5-7 of the Staff Report, are included beneath several key Comprehensive Plan provisions addressed below: A. Continuation of Forest Practices: Encourage the continuation of forestry on lands which are not designated as commercial forest resource lands (NR-G-5). Finding: The proposed release is on property that is zoned RR 1:20 and is not zoned as commercial or rural forest land. The release of the six-year moratorium may be authorized under JCC18.20.160 to allow a property owner to develop a single-family residence and associated utilities on land previously used in forestry operations. This proposal to release the parcel from forestry use will not significantly discourage forestry use, largely because the applicant proposes to replant and retain approximately 6-7 acres in native plants and commercially viable timber, which would continue the forestry use on a parcel that is not zoned for commercial forestry. B. Policy LU-P-7.1: Ensure that land use decisions consider climate change and are based on land use ordinances that are in compliance with the Critical Areas Ordinance and all applicable state environmental laws. Finding: Staff thoroughly reviewed this application for compliance with the County’s Critical Areas Ordinance (CAO) and the State Environmental Policy Act (SEPA). Ultimately, Staff determined that the request to lift the moratorium and grant a stormwater permit is consistent with, or can be conditioned to, comply with the CAO and SEPA. The SEPA DNS was not appealed and stands as issued. This request, as conditioned, will not result in significant environmental impacts on the surrounding area, and the proposed residence is to be situated so it will not be at significant risk from any mapped critical areas. C. Policy LU-P-7.2: Allow residential, commercial, and industrial development in a manner that minimizes risk from flooding, earth movement, shoreline erosion, sea level rise, and other natural hazards. Finding: The proposed residential development is in a mapped seismic hazard area, addressed in the applicants’ geotechnical report, which found limited risk from potential earth movement (See Exhibit 5, geotech report). There is no regulated flood risk on the parcel and the parcel is not located near a shoreline at risk for shoreline erosion or sea level rise. D. Policy LU-P-7.11: Continue to ensure that landslide, erosion, and seismic hazard areas are appropriately designated and that measures protecting public health and safety are implemented for hazardous areas under the Critical Areas Ordinance. Continue to periodically review and update CAO regulations relating to geologic hazard areas, including best available science. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING FULL RELEASE FROM MORATORIUM – SOUTHARD PROPERTY, FILE NO. MLA22-00065/FPA2022-00001 Page 8 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 Finding: The mapped seismic hazard area was addressed in a 2022 geotechnical report, so the findings must be recorded in a Notice to Title prior to the county issuing any development permits on this property. The geotechnical report’s suggestions must be followed as condition(s) imposed on development permits that may be issued for the applicants’ property, including without limitation the single-family home and associated structures addressed in the application materials for this Full Release request. E. Policy LU-P-8.1: Encourage increased coordination between stormwater requirements of Forest Practices and Jefferson County stormwater requirements to reduce potential impacts to off-site residential development, and encourage the preservation of natural drainage systems. Finding: FPA 2615192 (the approval authorizing timber harvesting on the applicants’ property) was exempt from stormwater review. The proposed conversion from forestry to residential use was reviewed under Jefferson County Code 18.30.070 Stormwater Management Standards. The project follows the County’s 2019 stormwater management manual requirements. Per the engineered stormwater management plan, stormwater from the proposed development will be treated using downspout dispersion trenches and sheet flow dispersion trenches, both leading to permanently maintained vegetated flow paths. Zoning and Protections for Forestry Activities. 17. There is no dispute that the applicants’ proposed residential use is an allowed use in the zone assigned to the subject property (RR 1:20), subject to expiration of the current moratorium on the site, or approval of this request for a Full Release of such moratorium. 18. The Staff Report credibly explains that the proposed development of a single-family residence on the applicants’ property is consistent with allowed development in the RR 1:20 zone that applies to the site and does not prematurely convert the property to a higher residential density. (Staff Report, page 7). Accordingly, it is consistent with County Code provisions intended to appropriately buffer areas near UGAs and forest lands, including without limitation JCC 18.15.015, captioned “Rural Lands.” 19. The applicants’ property is subject to compliance with the County’s codes and policies that support farming and forestry activities, including without limitation those found in JCC 18.15.095, captioned “Right to Farm and Forestry Provisions”. Accordingly, this Decision includes a condition of approval to effectuate this policy. (See Condition No. 10; Staff Report, analysis and discussion on pages 7-8). 20. Again, the unrebutted Staff Report credibly explains how the pending request for a Full Release from the FPA development moratorium on the subject property is, or can be conditioned to be, compliant or consistent with all applicable state and county codes and policies addressing Critical Areas, Aquifer Recharge Areas, Stormwater Management, Geologic Hazards, and Grading, among other things. (See Staff Report, pages 10-15; Conditions of Approval). FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING FULL RELEASE FROM MORATORIUM – SOUTHARD PROPERTY, FILE NO. MLA22-00065/FPA2022-00001 Page 9 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 As conditioned, the request for a Full Release from the existing FPA moratorium, satisfies applicable approval criteria. 21. JCC 18.20.160 addresses proposed conversion of land from forestry uses to non- forestry uses. Subsection 5(c)(iv) of this provision includes specific criteria that must be satisfied in order to approve a request to grant a release of forestry-related moratorium imposed on a particular property, such as the one at issue in this matter. Each of the criteria are listed below, with specific findings provided in italics, based upon the credible and unrebutted Staff Report issued for this application. JCC 18.20.160(5)(c)(iv) – A release of development moratorium is subject to the following findings: (A) The person requesting the release did not attempt to avoid the county review or restrictions of a conversion forest practices application, as evidenced by a transfer of property; Finding: There is no evidence in this record to establish that the current landowners and applicants attempted to avoid review or restrictions placed upon their property, so this criteria is satisfied. There is evidence in the record that implies that prior landowners may not have been candid with the applicants regarding the six-year moratorium that attached to the subject property as a result of the timber harvest approval issued in 2017. Ignorance of the law is no excuse. In any event, the applicants submitted this request for a Full Release of the existing moratorium and appear to have conducted themselves in good faith, following the process and submitting materials needed to facilitate review of this application. (B) Critical areas and their buffers, and shoreline area as set forth in this code and the shoreline master program were not damaged in the forest practice operation, or that any such damage is repairable with restoration; Finding: Staff reviewed current mapping resources and identified the following potential Critical Areas on the subject property: Non-Fish Habitat Stream, Seismic Hazard Area, and a Susceptible Special Aquifer Recharge Protection Area. Relying on information provided by Ross Forester, WA DNR Forest Practices Forester, on or about May 1, 2019, Staff determined that there is no stream on the subject property. The Geotechnical Engineering Report by GeoTest Services Inc., dated July of 2022, found no geologically hazardous areas or associated buffers on the parcel. No buffers or mitigation are required for the Susceptible Special Aquifer Recharge Protection Area. Future development proposals will be subject to a new Critical Area review and conditions may be added if new Critical Areas are found to exist on the property. (C) Corrective action can be undertaken to provide for compliance with applicable conversion standards established by this section. Finding: The application materials include a proposed Stormwater Plan, reviewed and approved by the Department. Conditions of approval mandate compliance with all provisions of such plan, which is included in the Record as Exhibit 6. The Staff Report (and previous findings in this Decision) establish that the Department FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING FULL RELEASE FROM MORATORIUM – SOUTHARD PROPERTY, FILE NO. MLA22-00065/FPA2022-00001 Page 10 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 reviewed the pending application proposal in accord with applicable SEPA and Stormwater management requirements, and all other applicable County codes and policies. As noted above, the County issued its SEPA threshold determination (a Determination of Non-Significance) for this application on or about November 29, 2022, in association with the pending stormwater and full release applications. No one appealed the SEPA DNS, so it stands as issued for purposes of issuing this Decision. The applicants’ proposal is required to address stormwater run-off that would occur from the timber harvest activities and residential conversion. The current landowners are proposing to develop a single-family residence with associated residential development on approximately 4 acres of the 10.32-acre parcel. They propose to replant approximately six to seven acres with natural and commercially viable timber. All stormwater management practices will follow Best Management Practice (BMP) T5.10B Downspout Dispersion. A dispersion trench will treat the stormwater from all roof areas. The location of the dispersion trench is northeast of the proposed single-family residence. The splash blocks are on the north side of the proposed shop. The dispersion trench shall be 17 lineal feet for the single- family residence of 1,666 square feet with a 25-foot vegetated flow path. The downspout splash blocks lead to a 50-foot vegetated flow path. A 2-foot wide drainage gravel transition zone with a 10-foot vegetated flow path will address stormwater from the gravel driveway. All stormwater management work must be consistent with the 2019 Department of Ecology Stormwater Management Manual for Western Washington. The proposal must address stormwater run-off that would occur from developing four acres of the parcel as a single-family residence. All stormwater management practices will follow Best Management Practice (BMP) T5.10B Downspout Dispersion. The roof areas will be dispersed via a dispersion trench positioned to the northeast of the proposed single-family residence and splash blocks on the north side of the proposed shop. The dispersion trench shall be 17 lineal feet for the single-family residence of 1,666 leading to a 25-foot vegetated flow path. The downspout splash block leads to a 50 vegetated flow path. Stormwater from the driveway is treated by a 2-foot wide driveway transition zone to a 10-foot vegetated flow path. Again, all stormwater management proposals are consistent with the 2019 Department of Ecology Stormwater Management Manual for Western Washington. Jefferson County will require additional permits for all future development, including but not limited to: site development review with legal lot of record determination, septic permits, well review, road approach permits, and building permits for all proposals. These permits will not be issued until the moratorium is released consistent with JCC 18.20.160(5)(b). 22. Based on more than a preponderance of unrebutted evidence in the record, including all findings above, the Examiner finds and concludes that, as conditioned, the pending request for a Full Release of an existing Forest Practices development moratorium on the Southard’s property satisfied all applicable approval criteria for such release, including without limitation those set forth in JCC 18.20.160. Except as modified in this Decision, the Staff Report’s analysis and explanation of how the pending application complies with such criteria are incorporated herein as findings of the Hearing Examiner supporting the Full Release from the development moratorium now imposed on the applicants’ property, subject to conditions. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING FULL RELEASE FROM MORATORIUM – SOUTHARD PROPERTY, FILE NO. MLA22-00065/FPA2022-00001 Page 11 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 V. CONCLUSIONS OF LAW. 1. As explained above, the record includes a preponderance of evidence establishing that the pending application satisfies all applicable decision criteria specified in the County’s code and merits approval, subject to conditions of approval. 2. 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, the undersigned Examiner APPROVES the Type III Full Release from the mandatory six-year development moratorium imposed on the applicants’ property, now set to expire in December of 2023, as identified and described in File Nos. MLA22- 00065/FPA2022-00001, subject to the attached Conditions of Approval that are incorporated by reference as part of this Decision. ISSUED this 7th Day of April, 2023 _____________________________ Gary N. McLean Hearing Examiner FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING FULL RELEASE FROM MORATORIUM – SOUTHARD PROPERTY, FILE NO. MLA22-00065/FPA2022-00001 Page 12 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 CONDITIONS OF APPROVAL FULL RELEASE OF FPA DEVELOPMENT MORATORIUM [FILE NOS. MLA22-00065/FPA2022-00001] (Location: a10.3-acre site addressed as 155 Night Owl Road, Parcel No. 001334021) 1. This Decision approves and grants the applicants’ pending request for a Full Release of the six-year development moratorium on the above-referenced property, now set to expire on or about December 27, 2023, after taking effect in December of 2017 based upon a previous property owner’s timber harvest approval issued under FPA 2615192. All subsequent development activity or use of the site that requires permits or approvals from the County, State, or other government agencies shall be subject to reviews, approvals, permits, or conditions, by such entities, and compliance with applicable development regulations, codes, policies, and ordinances in effect at the time of such proposal(s). 2. The applicants’ Stormwater Plan, included in the record as Exhibit 6, prepared by the applicant’s engineer, Rachel Weinberg, has been reviewed and approved by the Department of Community Development. All development activities on the subject property shall be in accord with and fully implement the provisions of the approved Stormwater plan. A Certificate of Occupancy will not be issued for any building permit until the Department receives a letter from Rachel Weinberg, PE, verifying compliance with applicable provisions of the approved Stormwater Plan. No clearing for roadways or utilities shall occur on the project site until clearing necessary for the installation of temporary sedimentation and erosion control measures have been completed. 3. A Geotechnical Report by GeoTest Services Inc., dated July 8, 2022, was submitted in conjunction with this application on July 25, 2022. The report addressed the stability of the geologic hazard area and is included in the record as Exhibit 5. All recommendations in the report must be followed. The report was submitted in compliance with Jefferson County Code (JCC) 18.22.550: Recording and disclosure for geotechnical reports. Accordingly, the geotech report, Ex. 5, must be recorded with the Jefferson County Auditor before this Full Release will take effect. The Auditor File Number (aka recording number) must be submitted to the Jefferson County DCD, who will then issue a letter confirming the effective date of this Full Release. 4. The applicant shall replant six acres of the site. The planting shall be completed prior to building occupancy and the planted trees will be expected to have a 90% survival at the three-year mark. Monitoring reports will be required to be submitted yearly to the Jefferson County Department of Community Development for review, and possible replanting/replacement requirements or corrective action measures imposed FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING FULL RELEASE FROM MORATORIUM – SOUTHARD PROPERTY, FILE NO. MLA22-00065/FPA2022-00001 Page 13 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 by the Director, to effectuate this condition and assure plant survival objectives are achieved. 5. The applicant proposed and is approved to treat roof area stormwater with downspout dispersion, requiring at least a 50-foot vegetated flow path from the downspout splash block to the downstream property line, and at least a 25-foot vegetated flow path between the trench outlet and any property line. Sheet flow dispersion is approved for the driveway stormwater treatment, requiring a 2-foot wide driveway transition zone to a minimum 10-foot vegetated flow path. The vegetation shall be permanently maintained to treat stormwater runoff. 6. The project shall adhere to all applicable Best Management Practices (BMPs) to control stormwater, erosion, and sediment during construction. BMPs shall address permanent measures to stabilize soil exposed during construction, and in the design and operation of stormwater and drainage control systems. 7. Fill used in this project must comply with International Building Code standards and Jefferson County Building Department Requirements. 8. All contractors and personnel shall be familiar with the County’s Inadvertent Discovery Plan (IDP) that applies to this proposal and all ground disturbance activities on the subject property, a copy of which shall be maintained in the County’s project file for this matter. 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. 9. All development activities or uses on the subject property shall be subject to compliance with all applicable local, state, and federal permitting requirements, statutes, and regulations. 10. 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. Consistent with County codes and policies that support farming and forestry activities, including without limitation those found in JCC 18.15.095, captioned “Right to Farm and Forestry Provisions”, 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. Real property within five hundred (500) feet of lands designated as Rural Residential 1:10 or 1:20, Rural Industrial, Rural Commercial, Agriculture, or Forestry, 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 or manure, and the application of permitted fertilizers and permitted pesticides. One or more of these FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING FULL RELEASE FROM MORATORIUM – SOUTHARD PROPERTY, FILE NO. MLA22-00065/FPA2022-00001 Page 14 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JEFFERSON COUNTY HEARING EXAMINER 621 SHERIDAN STREET PORT TOWNSEND, WA 98368 inconveniences may occur as a result of agricultural and forestry operations which are in conformance with existing laws and regulations. 11. No construction or site development activities may be undertaken on the subject property until required County approvals become effective, and the County or other regulatory authorities with jurisdiction issue applicable permits or approvals. 12. The applicant shall comply with all professional report conclusions and recommendations submitted in connection with this application review, as approved and/or amended by the County, including without limitation the Geotechnical Report included in the record as Exhibit 5, and the Stormwater Report and Plan included in the record as Exhibit 6. 13. The property owner(s) shall be responsible for consulting with state and federal agencies, and tribal entities with jurisdiction (if any) for applicable permit or other regulatory requirements. Approval of this Full Release from a development moratorium does not limit the applicant’s responsibility to obtain any required permit, license or approval from a state, federal, or other regulatory body. 14. All construction, development, activities, and uses on the subject property shall comply with all applicable provisions of the Jefferson County Code, whether or not such provisions are enumerated or referenced in these Conditions or the staff report. The burden is on the applicant/property owner to show compliance with applicable provisions of the JCC at every stage of future development. 15. Approval of this Full Release from a development moratorium will not and does not constitute, nor does it imply any expectation of, approval of any administrative, quasi-judicial, or other permit or subsequent reviews that may be required for construction or other activities on any portion of the subject property. FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION – APPROVING FULL RELEASE FROM MORATORIUM – SOUTHARD PROPERTY, FILE NO. MLA22-00065/FPA2022-00001 Page 15 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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.