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THE LAW OFFICES OF u j. LPi&f
JAMES C. TRACY, P.S. .{([rERSDI/COIIAI....(E)
ATTORNEY & COUNSELOR AT LAW ., (VlfO~'fj
OLYMPIC PEAKS BUILDING .
18887 STATE HWY #305 NE - SUITE 500
POULSBO, WA. 98370-7401
Ph: (360) 779-7889 Fax: (360) 779-8197
e--maiI: ictesa2002lalvahoo.com
January 21,2009
Michelle McConnell
Shoreline Planner
Jefferson County
In Re: Preliminary Comments on Draft Shoreline Master Program (SMP)
Dear Michelle:
The following are Fred Hill Materials, Inc.'s preliminary comments on the Draft SMP. These
comments are submitted to assist Jefferson County in their attempt to comply with the
requirements of the Shoreline Management Act (the "SMA" - RCW 90.58) and the Growth
Management Act (the "GMA" - RCW 36.70A).
Article 1 - Section 1
Subsection 1 - This section contains redundancy (No. 1 is wholly redundant to No.5). In fact,
state policy which is incompletely stated in No.5 should replace No.1, since the entire SMP is
implementation of the SMA and requires state approval for adoption. A clear understanding of
enunciated state policy is a critical foundation for the scope and content of the entire SMP. The
entire content ofRCW 90.58.020 must be included.
Subsection 2 - This section is wholly redundant and potentially in conflict with the appropriate
statement of state policy and should be deleted.
Article 1 - Section 3
Subsection A - This subsection should reverse the references to the WAC and RCW since the
statute always governs any adopted guidelines.
Subsection E - This subsection need work/revisi<m. It mixes two different concepts = mandatory
regulation and discretionary planning. Any "planning" functions should be described and placed
in separate subsection.
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Subsection F - The SMP is an element of Jefferson County's Comprehensive plan. As such, the
SMP must be "consistent" with JCCP, not simply "coordinated" and "integrated" with it.
Subsection 06 - This statement may be grounded in WAC 173.26.186 (8)( c), but that section
does not refer to "regulation". This term should be stricken.
Article 2 - Definitions
The definitions identified below are either vague, ambiguous, "defmed" by another vague or
ambiguous term, incomplete, incorrect, contradictory to another "definition", arbitrary, or some
combination thereof. Without accurate definition, those subject to the definitions are incapable of
determining what is required of them for compliance. These terms should be modified or deleted
from the SMP:
Adequate - This term is vague, defined by another vague/ambiguous term.
Adjacent - This term is vague, defined by another vague/ambiguous term.
Adverse impact - As stated, this definition posits that any impact - however remote or
minimal- falls within its ambit. This is a different standard than SEPA's "probable
significant adverse impact". Such a standard would likely be used to require mitigation from
all approved shoreline uses, and be subject to the "materiality" and "proportionality"
requirements of state and federal laws and case law, potentially creating both practical and
legal problems in practice. Further, applying this "no impact" standard to a shoreline
proposal coUld result in denial of a proposal due to "any" impact that cannot be "mitigated"
due to onsite limitations or inability to perform offsite mitigation. Such a denial would be
contrary to the enunciated state policies for use of the shoreline. Suggest substantial revision
or clarification of this definition.
Agricultur&l activities - Should include processing and transport of agricultural products
produced on site. Also, suggest addition of AgBMPs, Ag Resource Lands, Ag Warehouse.
Alteration nonconforming structures - It is unclear how internal modifications to a
nonconforming structure would implicate the SMP, particularly if the use of the structure is
unchanged. Please explain or revise accordingly.
Appeal- Suggest insertion of "with standing" after "citizen".
Channel Migration Zone - This term appears to imply that the SMP has jurisdiction over all
channel migration zones of any type and over an indeterminate time. Please specify the
authority for its inclusion and the parameters for its use in the SMP.
Chemicals - This term appears limited to the categories listed, and thus is too narrow. It also
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appears to be unrestricted as to chemicals that are regulated and controlled versus chemicals
that are illegal or improperly used.
Compatible - This term is vague, defined by another vague/ambiguous term (i.e.
"disharmony", "disruptive"). Further, it appears that any degree of "disruptiveness" would be
an adequate basis for a determination of "incompatibility". Such a use of the term, even when
accurately defined, violates the purpose and intent of the statute.
Degrade - This term is vague, defined by another vague/ambiguous term ("desirability",
"salability"). The term also appears to be unrestricted as to materiality. Such a use of the
term, even when accurately defined, violates the purpose and intent of the statute. Suggest
addition of definition for "development regulation".
Director - Query: Can the "Director" designate a person to act as "Director"? If what is
meant is a designee to make the determinations required by the SMP, can the designees
determinations be overridden by the Director?
Flood Plain Management - Definition should, the program for floodplain management is
already in existence and adopted by ordinance. What is the program's relevance in the SMP?
Forest Land - Suggest citation to the source of this definition. Further, suggest addition of
definition of "forest lands of long term commercial significance".
Noise - Suggest addition of definition for "noise, regulated", and an indication of how noise
is measured.
Open Record Hearing - Suggest using additional definitions of"c1osed record appeal" and
"public meeting" as contained in RCW 36.70B.
Ordinary High Water Mark - Suggest using statutory definition at RCW 90.58.030 (2)(b)
Permit Exemption Statement - Please state the definition and authority for the requirement of
such a statement.
Predecision Hearing, Open Record - This definition appears redundant to the "Open Record
Hearing" definition. What is its purpose? Are such hearings held under Jefferson County
UDC procedures?
Preliminary Plat - This definition is incomplete and inconsistent with the definition
contained in RCW 58.17.020 (4).
Resource Lands - Suggest that RCW 36.70A definitions be used.
Substantially Degrade - This term is vague, defined by another vague/ambiguous term.
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Further, the need for and use of the term is unclear. Please revise and explain.
Transportation Facility - Need to add a definition that describes private transportation
facilities under SMP jurisdiction (i.e. marine transport of goods or people). Without such a
definition, such uses are impossible to categorize in these SMP provisions.
Vicinity - Suggest adding "and is materially impacted by a development proposal" at end of
definition.
Article 6 - General Policies and Regulations
A. Policies
1.A.I Replace "and" with "or" for consistency with RCW 90.58.020. Suggest adding
"that are unmitigated or uncompensated for" after "developments". Suggest adding "of
Jefferson County shorelines" after "condition" in the second sentence.
I.A.2.iv Redundant. Suggest integration with I.A.2.i.
B. Regulations
I.B.I &.2 These appear to conflict with the remainder of this subsection.
D. Regulations
I.D.7 This subsection seems to assume that critical areas located in shoreline
jurisdiction could be a basis for extending shoreline buffers outside of shoreline jurisdiction
in violation of the court's decision in Everett. Please explain or modify.
Article 8 - Use-Specific Policies and Regulations
8.5.A.3 What does "visually compatible" mean? Without specification, this provision is
unconstitutionally vague. (Also, see comment on definition of "compatible", supra.)
8.5.C.3 What is "objectionable noise"? Unless specified, this term is unconstitutionally
vague. Please indicate statutory or regulatory standard.
8.5.CA What is "glare"? Unless specified, this term is unconstitutionally vague. Please
indicate statutory or regulatory standard.
8.6.A.2 Add "materially" or "significantly" before "interfere".
8.6.A.6 Add "material" or "significant" before "impacts" in first sentence.
8.6.DA Delete. Marine transport of people/materials is "per se" water dependant. No
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authority or scientific foundation exists for an SMP to treat marine transport of "naturally
occurring materials" as a use any different than marine transport of any other type of
material.
Article 10 - Administration and Enforcement
10.1.B.1.i The hearing examiner decision on Shoreline Variances and Conditional
Use Permits is essentially to recommend action to the Department of Ecology. (See RCW
90.58.140 (10)). Please revise this statement accordingly to avoid any confusion on the part
of the regulated parties and the public.
10. l.B.l.vii Include "the Jefferson County Comprehensive Plan, UDC, and the Growth
Management Act" after "Program".
10.1.B.1.viii
Specify when any bond required would be released.
10.1.E This Section is incorrect per statute. See RCW 90.58.140 (6)). Please
revise accordingly.
Additional comments and testimony will be added throughout the remaining process to
develop and adopt a revised Shoreline Master Program.
I hope that these comments are helpful to you in that effort.
ames C. Tracy,
Land Use Co
Fred Hill Materials, Inc.
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