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District No.1 Commissioner: Phil Johnson
District No.2 Commissioner: David W. Sullivan
District No.3 Commissioner: John Austin
County Administrator: Philip Morley
Clerk of the Board: Lorna Delaney
MINUTES
Week of November 9, 2009
The meeting was called to order by Chairman David Sullivan at the appointed time in the
presence of Commissioner Phil Johnson and Commissioner John Austin.
PUBLIC COMMENT PERIOD: The following comments were made by citizens in
attendance at the meeting: A citizen stated that he believes County staff time would be better spent
developing a noise ordinance rather than creating an ordinance to place a moratorium on adult businesses; a
citizen commented on the Port Hadlock Urban Growth Area and urged the Board to find an interim process
that allows for the initiation of businesses prior to having a sewer system in place; a citizen reviewed the
efforts of a local property rights group to obtain information on citizen's experience with the County's
permitting process; another citizen commented on the right to free speech and expressed his concern that the
County needs to support local businesses; a citizen commented on the economy in Jefferson County and the
need for a more comprehensive economic development plan; a citizen expressed his concern about the
possible re-introduction of wolves to our area; a citizen stated that he believes the Board is trying to regulate
the content of what is being said during the "Public Comment Period" which is unconstitutional; another
citizen stated that he feels there is a lack of communication between citizens and the Board.
APPROVAL AND ADOPTION OF THE CONSENT AGENDA: Commissioner Austin
moved to approve the Consent Agenda as presented. Commissioner Johnson seconded the motion which
carried by a unanimous vote.
I. RESOLUTION NO. 61-09 re: HEARING NOTICE: Proposed 2009 Supplemental Budget
AppropriationslExtensions; Jefferson County Superior Court; Hearing Scheduled for November 23,
2009 at 10:00 a.m. in the Commissioners Chambers, Jefferson County Courthouse
2. RESOLUTION NO. 62-09 re: Closure of Two (2) County Roads, Lake Leland Park Road and
Chimacum Park Road (Beginning November 16, 2009 until Parks Re-open)
3. RESOLUTION NO. 63-09 re: Oak Bay Culvert Replacement; Jefferson County Public Works
Project No. CR1843
4. AGREEMENT re: Dispensing Antiviral Medications; Jefferson County Public Health; Safeway
Corporation Pharmacy
5. AGREEMENT re: Dispensing Antiviral Medications; Jefferson County Public Health; Don's
Pharmacy
6. AGREEMENT re: Internet VehicleNessel Information Processing System (IVIPS); Jefferson
County Public Health; Washington State Department of Licensing
7. AGREEMENT re: Construction of Transfer Station Water Main Extension; Jefferson County
Public Works; Bernt Ericsen Excavation, Inc.
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Commissioners Meeting Minutes: Week of November 9, 2009
8. AGREEMENT re: Information Technology Professional Services; Jefferson County Central
Services; Vineyard IT Solutions, LLC
9. AGREEMENT Amendment No.1 re: Municipal Court and Jail Regional Services; Jefferson
County Administrator; City of Port Townsend
10. MEMORANDUM OF UNDERSTANDING re: Project SEARCH Transition Program; Jefferson
County Health, Developmental Disabilities Division; Jefferson Healthcare, Chimacum School
District, Port Townsend School District and Concerned Citizens
11. Payment of Jefferson County Vouchers/Warrants Dated October 30, 2009 Totaling $35.00
COMMISSIONERS BRIEFING SESSION: The Commissioners and the County
Administrator each reported as follows:
Commissioner Austin:
. A group supported by the Puget Sound Partnership is working to coordinate regional funding
proposals relating to water quality projects.
. Due to the chronic problem with the lack of vaccines, the State Board of Health will be urging the
Center for Disease Control (CDC) to improve their future planning for vaccination availability and
distribution.
Commissioner Sullivan:
. Discussed the conservation efforts of the Salmon Enhancement Group and stated that $12 million
comes back into the community which provides work for many local contractors.
Commissioner Johnson:
. On Friday he will be attending a conference in Spokane which will focus on the U.S. Census
population count in rural areas.
County Administrator Philip Morley:
. Reported that the joint meeting held last week with the City of Port Townsend focused on the need to
coordinate efforts in the following areas: updating the Comprehensive Plan by 2011; economic
development; and infrastructure.
APPROVAL OF MINUTES: Commissioner Austin moved to approve the minutes of the
Special Meeting held on September 2, 2009 and the minutes ofthe Joint Special Meeting held with the
Planning Commission on September 2, 2009 as presented. Commissioner Johnson seconded the motion
which carried by a unanimous vote.
Discussion and Possible Adoption re: Proposed Interim Control Ordinance Enacting a
Moratorium on Adult Businesses: Department of Community Development (DCD) Planning Manager
Stacie Hoskins explained that the moratorium on adult businesses in the County was enacted on April 27,
2009 and expired on October 27,2009. The moratorium was established per RCW 36.70A.390 which
allows the Board to establish interim controls in view of pending legislative changes.
Page 2
Commissioners Meeting Minutes: Week of November 9, 2009
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Staff is requesting that the Board adopt the ordinance enacting a moratorium on adult businesses for an
additional six months and approve a legal notice to be published for conducting the required public hearing.
Commissioner Johnson moved to adopt ORDINANCE NO. 08-1109-09, enacting a moratorium on the
issuance of permits or approvals pertaining to adult businesses and to approve the legal notice setting the
public hearing for Monday, December 7, 2009 at 10:00 a.m. in the Commissioner's Chambers.
Commissioner Austin seconded the motion which carried by a unanimous vote.
Department of Community Development Director Al Scalf noted that the Planning Commission has been
working on developing regulations for adult businesses which will be reviewed by staff to create an
ordinance that will be returned to the Planning Commission for review and recommendation.
Stacie Hoskins and David Alvarez discussed the risks of continuing to do a rolling moratorium on adult
businesses. The lack of resources and required deadlines with other projects have delayed incorporating
standards for adult businesses into the Jefferson County Code.
Public Defender Services Agreement; Jefferson Associated Counsel (JAC): County
Administrator Philip Morley explained that in 2008 the County entered into an agreement with Jefferson
Associated Counsel (JAC) to provide public defender services for Superior, District and Juvenile Courts.
An amendment to that agreement is being presented which will increase the payment amount as a result of
the extraordinary costs involved in defending the State v. Pierce case, as well as due to increased costs of
JAC's employee health care coverage. The amendment also extends the term of the agreement through
2010.
He noted that JAC submits timely quarterly reports. He believes approval of this agreement is in the best
interest of the County as it is a good opportunity to control indigent defense costs and allows additional time
to conduct a thorough request for proposal process for 2011 and beyond.
Commissioner Austin moved to approve the agreement amendment. Commissioner Johnson seconded the
motion which carried by a unanimous vote.
Port Hadlock Urban Growth Area Wastewater Equipment Facility Bids: Department of
Community Development (DCD) Associate Planner Joel Peterson explained that the consultant Tetra Tech
completed its evaluation ofthe bids for the membrane bioreactor (MBR) equipment, design and construction
services for the Port Hadlock Wastewater Facility. Bids were received from the following three
manufacturers: GE Water Process Technologies, Agua Aerobic Systems and Enviroquip. The lowest
responsive bidder was Enviroquip. Staff is asking for the Board's concurrence with awarding the bid to
Enviroquip and for direction from the Board to proceed with contract negotiations.
Page 3
Commissioners Meeting Minutes: Week of November 9, 2009
Commissioner Austin moved to award the bid to Enviroquip and to direct staff to proceed with negotiating a
contract. Commissioner Johnson seconded the motion which carried by a unanimous vote.
HEARING and DECISION re: Comprehensive Plan and Unified Development Code
Amendments #MLA09-00295 for the Proposed Irondale/Port Hadlock Urban Growth Area Compliance:
Department of Community Development (DCD) Associate Planner Joel Peterson reported that Jefferson
County received a compliance order on August 12, 2009 from the Western Washington Growth
Management Hearings Board in regard to case no. 07-2-0012c. The Hearings Board ordered Jefferson
County to adopt an ordinance clarifYing which rural development standards apply prior to sewer availability
in order to achieve Growth Management Act (GMA) compliance for the Irondale/Port Hadlock urban
growth area (UGA).
In response, staff put together a master land use application #MLA09-00295 proposing changes to the
Comprehensive Plan map and to the urban and rural development standards outlined in the Unified
Development Code (UDC). The proposed amendments went through the Planning Commission process
which included discussion about how to provide for economic development and about the interpretation of
various compliance orders that the Hearings Board has issued on the subject of the use of interim septic
systems for urban levels of development.
The Planning Commission and DCD have differing recommendations which were previously presented to
the Board. The Board opted to hold its own hearing. Mr. Peterson noted that action on this compliance
order must be taken by November 12,2009. Therefore, staff is requesting that after the hearing, the Board
deliberate and take action to approve findings and conclusions of law in the form of an ordinance.
Planning Manager Stacie Hoskins noted that three written comments were received from Platt Irwin Law
Firm representing Dr. Joyce Murphy, George Yount and Bill Miller which will be made part of the record.
County Administrator Philip Morley stated that the County is trying to finalize and bring the UGA into
compliance with the Hearings Board. Once the County is compliant and has a fully functional and legally
adopted UGA, then the County Commissioners can entertain refinements to the UGA in the future. If any
future changes were contested, at that point the County would go back to the valid UGA.
Community Development Director Al Scalf added that staff has taken a very narrow legal position with a
primary goal to achieve GMA compliance. A compliant UGA would be the foundation for which future
applications would be considered through a public process. He noted that the County must be GMA
compliant in order to receive grant funding the federal stimulus funding.
Commissioner Austin asked if the County were to become compliant, how soon could reasonable
adjustments be considered? Al Scalf answered that the compliance hearing for the case ICAN v. Jefferson
Page 4
Commissioners Meeting Minutes: Week of November 9,2009
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County is scheduled before the Hearings Board on January 5, 2010. Typically, final decisions and orders are
issued within 30 to 60 days. A final decision and order is expected by March 2010. The deadline for
receiving applications for Comprehensive Plan amendments in March 1" each year. UDC amendments can
be applied for anytime. He noted that any action taken by the Board today is presumed valid upon adoption
and will open a parallel 60 day appeal period.
Chairman Sullivan opened the hearing for public testimony.
Rick Sepler. Citv of Port Townsend Planning and Development Services Director supports the staff
recommendation for the specific interim zoning in the Port Hadlock Urban Growth Area. The City of Port
Townsend believes that any alternatives that allow more intense urban development without adequate
infrastructure would be inconsistent with growth management. Once infrastructure is provided then urban
densities are appropriate. While the Planning Commission recommendation is tempered, it is tempered
about politics and opposed to the law. Under close scrutiny by the Hearings Board it will be evident that the
staff recommendation is appropriate at this point in time. In addition, as the Commissioners are aware, new
information has become available on water resources and availability in the County. The City is in the
process of developing expanded studies on that issue. Without greater assurance of the perfection of the
water supply, the City is concerned about the long term development in rural areas of the County and in
areas that are zoned rural on an interim basis. The City looks forward to working Vvith the County to resolve
these issues over the next couple of months and to secure a definitive answer.
Bill Miller, 2023 E. Sims Wav. Port Townsend stated that the proposed development regulations as
proposed by the Planning Commission will result in the Irondale/Port Hadlock UGA being fully compliant
Vvith the GMA. The underlying issue is whether or not the County believes what the Western Washington
Growth Management Hearings Board has actually written concerning the UGA. The County's response to
the August 12,2009 compliance order should be to submit the requested rural development regulations
applicable to the UGA zoning with the map as prescribed by the Jefferson County Planning Commission.
The Hearings Board order issued in May 2005 stated that development regulations with provisions for
interim onsite septic systems were found to be compliant with the RCW. The Hearings Board further stated
that even if the development regulations might be compliant, they cannot be found compliant when they are
based on a non-compliant Capital Facilities Plan. Because the County had submitted a Capital Facilities
Plan found to be non-compliant, its development regulations had to be found non-compliant. Those non-
compliant regulations based on a non-compliant plan were rescinded by the County. Ever since the May
2005 final decision and order was issued, the County has been working diligently to resolve the numerous
issues that were found to be non-compliant. To that extent, the Hearings Board stated in its 2009
Compliance Order that the Jefferson County Urban Growth Area was compliant, except that it had not
issued any development regulations applicable to the UGA, and that it was required to do so by November
12,2009. The UGA specifically addresses three main planning goals: 1) Encourage development in urban
areas where adequate public facilities and services exist or can be provided in an efficient manner. 2)
Reduce the inappropriate conversion of undeveloped land into sprawling low density development. 3)
Encourage economic development ... and promote the retention and expansion of existing businesses and
Page 5
Commissioners Meeting Minutes: Week of November 9,2009
recruitment of new businesses. RCW 36.70a.Oll(2) states: "The legislature finds that to retain and enhance
the job base and rural areas, rural counties must have flexibility to create opportunities for business
development." He urged the Board to accept the Planning Commission's recommendation or language
supporting its intent. Written comments were also submitted. (See permanent record)
Dr. Jovce Murphv, Port Hadlock is a business owner and she is disappointed that the City of Port Townsend
is playing politics and is only now telling us that Port Hadlock cannot be developed because all development
must occur in Port Townsend. Business owners have offered compromises to DCD staff. She hears Mr.
Scalf and Mr. Morley saying that once the amendments are approved then she can apply for a different
zoning. Why wouldn't the Board just do that today and save everyone time and money? During Mr.
Miller's testimony he read the Growth Management Hearings Board decision and explained what is
acceptable and what can be done to accommodate business owners. The Hearings Board did not reject the
County's UGA because of the development code that was submitted. They rejected the UGA because the
County did not have an approved Capital Facilities Plan. Mr. Alvarez keeps taking a narrow view based on
a Hearings Board decision for Mason County. He is forgetting all the other positive terminology that was
included in the decision for Jefferson County. The Hearings Board has repeatedly said that they support
interim septic systems \'vith commercial development. The people who have been your litigants have stated
on record that they are not opposed to commercial and economic development with interim septic systems,
they are concerned about the residential areas. The Board has been told repeatedly that these properties are
already in commercial zoning. She suggested the Board drive by the area to see for themselves. The Board
is telling citizens that they have to wait 20 years to develop their property and then in 20 years the citizens
will be expected to connect their property to the sewer system to develop commercially. The citizens
interested in establishing businesses will all be gone by then. The Board needs to make it commercial now
and allow the creation of businesses to bring in jobs and revenue to support the local economy. Clallam
County worked to save private property and yet they still received a positive decision from the Hearings
Board just last week. This is going to take some bold leadership for the Board to stand up say here is what
can be done. The Hearings Board is not telling the County what has to be in the development code, it is
merely asking the County to provide the codes. If the County's codes are consistent, why is the County so
fearful that the Hearings Board will reject them. The work the Planning Commission has done is right for
the County as a whole and not just Port Townsend. She requested the Board be progressive and work for the
citizens by supporting the Planning Commission's proposal. Approval of the proposal will be good for the
citizens and will ensure a win-win situation.
George Yount. 717 25th Street. Port Townsend echoed the testimony of Bill Miller and Dr. Joyce Murphy.
The key issue is the Capital Facilities Plan. Also key is an agreement that each parcel must connect to a
sewer system if they are to be developed. Interim septic systems can be allowed. He urged the Board to
adopt the Planning Commission's recommendations and particularly the UGA boundary as noted on Figure
2-1. Written comments were also submitted. (See permanent record)
Chris Riffle, Attornev at Law, Platt Irwin Law Firm representing Dr. Joyce Murphy. He reviewed a letter
dated November 5, 2009 which thoroughly outlines a plan which offers a compromise between the Planning
Commission's proposal and DCD's proposal for achieving GMA compliance for the planned Port Hadlock
Page 6
Commissioners Meeting Minutes: Week of November 9, 2009
UGA. The plan also suggests changing the DCD's map so that it more accurately reflects what currently
exists. He also expressed concern about the suggestion made by the County Administrator that the County
should take the path of least resistence to achieve compliance and then later we can address the actual and
real concerns of the citizens and the County relating to economic development and changing the zoning to
more accurately reflect the long term plan. Such a suggestion seems like a "back office" deal and in his
opinion, may involve ethical issues because if the "long-term intent" is not included in the plan that is
submitted to the Hearings Board, then 5 or 10 years down the road when things are changed to reflect the
actual "long-term intent", it will appear as though the County "pulled the wool" over their eyes. He noted
that the August compliance order issued by Hearings Board did not require the County to use a specific set
or rural development standards, it only asked the County to adopt an ordinance clarifYing which rural
development standards apply prior to sewer availability. (See permanent record)
David Alvarez, Jefferson County Chief Civil Deputy Prosecuting Attorney presented a copy of the Western
Washington Growth Management Hearings Board decision on the "Motions to Strike" in the Case No. 09-2-
0012, Irondale Community Action Neighbors (ICAN) v. Jefferson County. He explained that this case
involved two actions. First, ICAN made a motion to strike certain records. Second, the County made a
motion to strike and have the case dismissed based on "res judicata" which is Latin for "claim preclusion"
and on "collateral estoppel" which is Latin for "issue preclusion." These terms mean that these claims and
issues have already been argued and lost in a court of law. The County won the motion and the case has
been dismissed. He noted that the County still has obligation under the related Case No. 07-2-0012c., ICAN
v. Jefferson County which is the reason for this hearing. Any ordinance adopted by the Board may be
appealed within 60 days from adoption. His only concern is that changes to the rural map inside the UGA
boundary should go through the Comprehensive Plan amendment process.
Hearing no further comments for or against the proposed amendments to the Comprehensive Plan and
Unified Development Code #MLA09-00295, Chairman Sullivan closed the public hearing.
Commissioner Sullivan stated that a question was asked during the public hearing about why the County is
fearful of varying from DCD's recommendation. He answered that being compliant means the County will
qualify for funding. The County has been working for many years to become compliant. He understands
the long wait for the community and he asked if the County has any latitude in adopting development
regulations that will be compliant? Al Scalf replied that it is a question of risk management. Millions of
dollars which tie into affordability, environmental protection strategy and the economic plan for the UGA
are at risk. Grant recipients are procedurally required to be in compliance with the UGA. The County needs
to be 100% compliant. Qualifying for grants is important in order to position the County to get the work
done so the County will further qualify for stimulus funding that may not be available if there are long
delays. He asked how the map relates to the sewer plan and if making changes to the map affects any other
documents or requires DOH and/or DOE approval? Al Scalfresponded that there are two maps. One is the
"Rural Transitional" map and the other is "Zoning Map for the UGA" dated February 4,2009. There have
Page 7
Commissioners Meeting Minutes: Week of November 9, 2009
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been no suggestions to change the "Zoning Map for the UGA." No additional analysis would be required in
that regard. The changes suggested have to do with the "Rural Transitional" map and matching it to the
"Zoning Map for the UGA."
Philip Morley added that according to Deputy Prosecutor Alvarez any changes to the rural zoning map
would need to go through the procedural review process to ensure adequate opportunity for public review
and comment. Without going through the normal docketing process it could open additional legal
challenges for the County.
Al Scalf discussed the fundamental differences between the proposals. He explained that the question is
what is allowable under GMA? Based on professional knowledge of the GMA, DCD's conclusion is that
urban uses require urban services. That level of development requires a sewer system. The Hearings Board
decision dated May 31, 2005 states on page 18, lines 17 through 19 that"... Where urban levels of
development have not been permitted until sewer is available, the Board has found the use of interim onsite
septic systems compliant." DCD's position is that until the urban service is available (sewer system) there
cannot be urban development. On an interim basis there can be rural development. A single-family
residence can be built using an onsite septic system.
Commissioner Austin asked about the several references that the use of septic systems is acceptable until the
sewer system becomes available? Al Scalf answered that it relates to the type of development. Onsite septic
systems can be used for a certain types of development. Even in the UGA onsite septic systems can be used
for residential development. But, in the case of the comparative properties that are being examined, the
default zoning is rural which means rural standards apply to those properties. Those properties cannot be
developed commercially at an urban level using onsite septic systems.
Stacie Hoskins explained that QFC in Port Hadlock is categorized as a "Rural Village Center" and is
allowed to develop commercially under rural standards with an onsite septic system. The properties
currently at issue are zoned rural residential and were upzoned to a new expanded commercial area. DCD's
concern is that the County must be careful to identifY what rural standards are allowed that will be compliant
and not considered as expanding the "Limited Area of More Intensive Rural Development (LAMIRD)." It
is true that DCD is being very conservative in the proposal, because DCD believes their proposal will
achieve full compliance.
David Alvarez stated that first there must be underlying zoning designations, and second there must be
development regulations established for those zoning designations. There are many rural zoning
designations (ie. Rural Residential, Rural Commercial, Rural Industrial and Rural Light-industrial). Each of
these must have their own set of development regulations. The key question to ask for any property in the
UGA where sewer is not available is "What is the rural zoning?" The rural zoning identifies what type of
Page 8
Commissioners Meeting Minutes: Week of November 9, 2009
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development can take place. The proposals to change the underlying rural designation he believes would
require going through the entire Comprehensive Plan amendment process.
Discussion ensued regarding the application process for requesting zoning changes. Joel Peterson noted that
even though implementation of the sewer plan is 20 years, Rhody Drive is scheduled to be connected to the
sewer system by 2013. In reality it may be closer to 2014 since the plan has been delayed a year because it
takes times to secure funding. In weighing the risk of what can be gained or lost, DCD feels that it is best to
take the strict approach of no urban development without urban services, since Rhody drive will attain sewer
in a few years. He added that phase 1 of the project is the Rural Village Center in Port Hadlock and phase 2
is Rhody Drive. Some project funding strategies involve the possibility of combining the two phases,
although it is uncertain at this point if that will happen.
The Board agreed to take time to thoroughly review all the public comments received and to continue
deliberations and make a final decision this afternoon. Chairman Sullivan recessed the meeting until! :30
p.m.
Chairman Sullivan reconvened the meeting at 1 :30 p.m. The following deliberations took
place instead of the County Administrator's briefing session.
DELIBERATIONS and DECISION re: Comprehensive Plan and Unified Development
Code Amendments #MLA09-00295 for the Proposed Irondale/Port Hadlock Urban Growth Area
Compliance: After the Board discussed past actions with regard to the UGA, Chairman Sullivan stated that
the problem with allowing the interim use of septic systems until sewer is provided is that the Capital
Facilities Plan is not guaranteed for funding. The Hearings Board will consider the likelihood of being able
to carry out the plan. What happens if the County does not get funding? The County has choices to make,
but, those choices are not how to spend funding it already has. The choices are about seeking funding
sources. If the County allows interim use of septic systems and then is not successful in obtaining funding
for the sewer project, the interim use becomes not as temporary as was initially envisioned.
Associate Planner Joel Peterson presented both the proposed "Transitional Zoning Map" and the current
"Zoning Map" adopted as part of the Comprehensive Plan for the Port Hadlock UGA.
The Board discussed concerns for the citizens as well as concerns about funding. Commissioner Austin
stated he feels as ifhe is being asked to do something that is completely counter-intuitive. However, it may
be the only way to maximize the probability of funding the project. If the Board goes in that direction, the
County should bend over backwards to facilitate Comprehensive Plan amendments that would allow
expansion of these commercial areas. He doesn't believe there is anything dishonest about that as it would
Page 9
Commissioners Meeting Minutes: Week of November 9, 2009
be recognized that there are complexities in State laws as well as in the management of land use by people
who are not familiar with the land in Jefferson County.
After discussing various options and scenarios for allowing citizens to commercially develop their property
while still insuring the County's compliance with the UGA, Commissioner Austin reluctantly moved to
adopt DCD's recommendation for the Master Land Use application #MLA09-295 amending the
Comprehensive Plan and Unified Development Code (UDe). Commissioner Johnson seconded the motion
which carried by a unanimous vote.
Associate Planner Joel Peterson presented a copy of a draft ordinance prepared for review and consideration
by the Board. After the Board made changes to the findings, Commissioner Austin moved to approve
ORDINANCE NO. 09-1109-09 adopting Master Land Use Applications #MLA09-00295 amending
Jefferson County's Comprehensive Plan and Unified Development Code for the proposed Irondale/Port
Hadlock Urban Growth Area. Commissioner Johnson seconded the motion which carried by a unanimous
vote.
NOTICE OF ADJOURNMENT: Commissioner Austin moved to adjourn the meeting at
3:56 p.m. until the next regular Monday meeting at 9:00 a.m. or special meeting as properly noticed
pursuant to RCW 42.30.080. Commissioner Johnson seconded the motion which carried by a unanimous
vote.
MEETING ADJOURNED
JEFFERSON COUNTY
BOARD OF C MMISSIONERS
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Page 1 of2
Leslie Locke
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From: David Sullivan
Sent: Friday, November 06.20093:14 PM
To: Leslie Locke
Subject: FW: Public Comment for UGA
Importance: High
Attachments: JCPCugaPubCommenl.docx
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From: WILLIAM A MILLER[SMTP:ALlBERAL 14@MSN.COM]
Sent: Friday, November 06, 2009 3: 1159 PM
To: John Austin; Phil Johnson; David Sullivan
Subject: Public Comment for UGA
Importance: High
Auto forwarded by a Rule
Commissioners -
The letter below is included in the attachment to this email - which also has the 3 page attachment
referred to in the letter.
Thank you for your attention to this matter.
William Miller
*******************************************************************************:
November 6. 2009
Jefferson County Board of County Commissioners
David Sullivan, Phil Johnson, John Austin
Dear Sirs,
This letter is to support rural development regulations for the Irondale/port Hadlock Urban Growth
Area (UGA) that will allow interim on-site septic capabilities in the commercial zones of that UGA.
Support for these regulations - which were in the original UGA proposal - is based on responses made
by the Western Washington Growth Management Hearings Board (WWGMHB) to the efforts made by
the county as it worked to implement its UGA
The above point was written by the WWGMHB in its May 31, 2005 Final Decision and Order where it
clearly stated that it found the use of interim on-site septic systems compliant with the RCW. Their
point was either overlooked or misunderstood and so it was essentially ignored by the county as it
worked to correct those elements of its proposal actually identified by the Board as not compliant with
the RCW. The Board found that the General Sewer Plan was not compliant and therefore, that any
regulation based on a non compliant plan could not be found to be compliant.
1116/2009
Page 2 of2
It is important to note that the rural development regulations that would allow for interim on-site
sewer capabilities also directly address and adequately meet the three (3) planning goals in the RCW
that Jefferson County is subject to in order for its proposed UGA to be found in compliance. They are:
#(1) encourage development in urban areas where adequate facilities and services exist or can be
provided in an efficient manner; #(2) reduce sprawl by the inappropriate conversion of undeveloped
land ... into low-density development; and #(S) encourage economic development ...[and] promote the
retention and expansion of existing businesses and recruitment of new businesses.
Language for the rural development regulations (JCC 18.18) applicable to the UGA was provided in the
October 2009 County Planning Commission's response to satisfy the WWGMHB Compliance Order of
August 12, 2009. A map - included in the January 29, 2009 Application for Suggested Comprehensive
Plan Amendment MLA # 09-24 - showing the boundary of and zoning within the UGA was also
recommended by the Planning Commission to be submitted to indicate where the regulations apply.
Text ofWWGMHB documents (attached) indicate that providing the above information to the
WWGMHB will satisfy the Compliance Order of August 12, 2009 and can be reasonably expected to
result in the Board finding the Irondale/Port Hadlock UGA to be in compliance with the RCW.
Sincerely,
William
Miller
2023 E. Sims Way
#360
Port Townsend, WA 98368
Attachment
11/6/2009
November 6, 2009
Jefferson County Board of County Commissioners
David Sullivan, Phil Johnson, John Austin
Dear Sirs,
This letter is to support rural development regulations for the IrondalejPort Hadlock Urban Growth Area
(UGA) that will allow interim on-site septic capabilities in the commercial zones of that UGA. Support
for these regulations - which were in the original UGA proposal - is based on responses made by the
Western Washington Growth Management Hearings Board (WWGMHB) to the efforts made by the
county as it worked to implement its UGA
The above point was written by the WWGMHB in its May 31,2005 Final Decision and Order where it
clearly stated that it found the use of interim on-site septic systems compliant with the RCW. Their
point was either overlooked or misunderstood and so it was essentially ignored by the county as it
worked to correct those elements of its proposal actually identified by the Board as not compliant with
the RCW. The Board found that the General Sewer Plan was not compliant and therefore, that any
regulation based on a non compliant plan could not be found to be compliant.
It is important to note that the rural development regulations that would allow for interim on-site sewer
capabilities also directly address and adequately meet the three (3) planning goals in the RCW that
Jefferson County is subject to in order for its proposed UGA to be found in compliance. They are: #(1)
encourage development in urban areas where adequate facilities and services exist or can be provided
in an efficient manner; #(2) reduce sprawl by the inappropriate conversion of undeveloped land ... into
low-density development; and #(5) encourage economic development ...[and] promote the retention
and expansion of existing businesses and recruitment of new businesses.
Language for the rural development regulations (JCC 18.18) applicable to the UGA was provided in the
October 2009 County Planning Commission's response to satisfy the WWGMHB Compliance Order of
August 12, 2009. A map - included in the January 29, 2009 Application for Suggested Comprehensive
Plan Amendment MLA # 09-24 - showing the boundary of and zoning within the UGA was also
recommended by the Planning Commission to be submitted to indicate where the regulations apply.
Text of WWGMHB documents (attached) indicate that providing the above information to the
WWGMHB will satisfy the Compliance Order of August 12, 2009 and can be reasonably expected to
result in the Board finding the IrondalejPort Hadlock UGA to be in compliance with the RCW.
Sincerely,
William Miller
2023 E. Sims Way #360
Port Townsend, WA 98368
Attachment
Attachment to November 6, 2009 letter to BoCC from William Miller
page 1/3
This is a letter supporting UGA development regulations that will allow for interim on-site septic systems
(capability) and require the systems to: a) have state approval for use, b) be implemented only within
the defined UGA boundary and c) require their decommissioning and timely removal upon sewer
availability.
First, it should be noted that the County in its efforts to compiy with the Final Decision and Order issued
by the Western Washington Growth Management Hearings Board (WWGMHB) on May 31, 2005
concentrated on those issues found to be non-compliant with the RCW but that it has essentially
ignored the very significant statement by the Board found on page 18 of 51 lines 14 thru 19 regarding its
proposed general sewer plan.
"In Jefferson County's situation in this case, the County is the sewer provider. Therefore, its capital
facilities plan must give assurance that the extension of urban services will actually be available prior to
permitted urban levels of development. In addition, development must not be permitted in a manner
which will preclude future urban densities and uses. Where urban levels of development have not been
permitted until sewer is available. the Board has found the use of interim on-site septic systems
compliant with the RCW 36.70A.ll0." In fact, the County had actually proposed development
regulations with the use of interim on-site septic systems in its Urban Development Code.
The knowledge of that fact is the background necessary to fully understand the "Conclusion" statement
given by the Board on page 21 of 51 lines 1 thru 10. There the Board points out that It was not the
County's development regulations that were the problem - the problem was that because the county
did not have a compliant capital facilities plan that any development regulations subject to that non-
compliant plan could not be found to be compliant.
"Conclusion l.c): Instituting urban development regulations before the development of a compliant
capital facilities plan will either preclude eventual future development at urban densities in the UGA
when sewer is available, or permit densities that constitute sprawl. We understand the County's desire
to establish this UGA to realize its legitimate economic development goals and its investment spent in
years of pianning for this area. Nevertheless. we cannot find the County's urban development code
compliant or valid, until they have completed a compliant capital facilities plan. Development
regulations that implement a non-compliant capital facilities plan do not themseives compiv with RCW
36.70A,040. 36.70A.ll0131. 36.70A.020111. (2) and (12)"
It seems quite clear that because the County's proposals for its Capital Facilities Plan and also its
Financing Planning were non-compliant the Board had to require the county bring those plans into
compliance before any issues based on those documents could be considered for being in compliance.
Attachment to November 6,2009 letter to BoCC from William Miller
page 2/3
Efforts by the county to obtain compliance of those plans were acknowledged with the WWGM HB
stating the County's compliance of both plans- in its August 12, 2009 Compliance Order
See Page 7 of 21 lines 2S thru 28 for the General Sewer Plan being in compliance
"Conclusion: Jefferson County's adoption of its General Sewer Plan adequately demonstrates that
sewer will be available in the Port Hadlock UGA within the 20 year planning horizon, as required by RCW
36.70A.ll0"
And see page 9 of 21 lines 13 thru 15 for the sources of funding being in compliance
"Conclusion: The County's adopted General Sewer Plan identifies sources offunding from grants, loans,
bond issues, utility local improvement districts and connection charges and lays out a repayment stream
through 2018, meeting the requirements of RCW 36.70A.070(3)(d)."
In addition, the WWGMHB August 12, 2009 Compliance Order on page 12 of 21 lines 15 thru 20
reiterates its earlier position in its footnote - number 30 (at the end of line 20) - referring to the May 31,
2005 Final Decision and Order
"Until such time as the county clearly adopts measures that demonstrate where the rural development
standards oftitie 18.15 JCC apply, it has not cured the area of non-compliance identified bv the Board
when it found that "the development regulations that allow new urban levels of development with out
provision of public sanitarv sewer fail to complv with RCW 36.70A.ll0. RCW 36.70A.020 (1) and (12).
5f#30"
This is correct and it is correct because in 2005 the county did not have a compliant sewer plan and thus
the development regulations (that in fact, addressed on -site septic usage) that were submitted by the
county with that non-compliant plan could not be found compliant and therefore they could not apply.
And because no development regulations were provided after the plan was found compliant- the
county, simply, has no development regulations for the UGA and has been directed to provide those
development standards, and where they would apply in the UGA, to the WWGMHB.
See also page 13 of 21 lines 15 thru 22 of the WWGMHB August 12, 2009 Compliance Order
Line 15 "Therefore, except with respect to the issue of specifying which rural development standards
apply within the UGA prior to sewer availability, the County development regulations are compliant with
the GMA."
Line 19 "Conclusion: Until such time as the County clarifies which rural development standards apply
prior to sewer availability, it remains out of compliance with the requirements of RCW 36.70A.ll0 and
RCW 36.70A.020(1) and (12)."
o ,
Attachment to November 6, 2009 letter to BoCC from William Miller
page 3/3
And on page lS of 21 lines 14 thru 21 of the WWGMHB August 12, 2009 compliance Order
"Based on the foregoing, the Board determines that the County's adoption of its General Sewer Plan
adequately demonstrates that sewer will be provided in the Port Hadlock UGA within the 20 year
planning horizon as required by RCW 36.70A.IlO. In addition, the General Sewer Plan now meets the
requirement of RCW 36.70A.070(3)(d) to have "at least a six-year plan that will finance such capital
facilities within projected funding capacities and clearly identifies sources of public money for such
purposes." The Board finds that the County's population holding capacity analysis has not been shown
to be clearly erroneous."
The above was also reiterated in the Board's September 11, 2009 Order on Petitioners' Motion for
Reconsideration. See page 4 of 8 lines 1 thru 8.
"While the board made earlier findings of invalidity in these consolidated appeals, in the August 2009
Compliance Order the Board found that. with the exception of the County's failure to clarify which rural
development standards applied prior to sewer availability. the County had achieved compliance with the
GMA. Since there can be no basis for a determination of invalidity in the absence of a finding of
noncompliance. once the Board has determined that a local jurisdiction has remedied an area of non-
compliance, any finding of invalidity that was based on that non-compliance is rescinded."
Therefore:
Based on the corrective actions of the County and the decisions, noted above, by the WWGMHB it is
requested that the BoCC submit to the WWGMHB: a) the map "Irondale & Port Hadlock UGA Zoning"
dated February 4,2009 and b) the text for JCC 18.18, for the rural development standards for the UGA
as prepared in October 2009 by the Jefferson County Planning Commission.
It should be noted that the map supports the County's population holding capacity analysis. And it has
the commercial zoning in place along State Route 19 to further supports opportunities for the UGA to
address the economic development goals required in the RCW.
By only allowing interim on-site septic capabilities in commercial zoning, the proposed UGA
development regulations provide Jefferson County: a) the means to assure commercial development
within the UGA will be able to proceed at urban densities in a timely manner; and b) the means to
assure residential development within the UGA will support the urban density required for each zoning
category upon sewer service becoming available.
(c.
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HEARING
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From:
To:
Sent:
Subject:
"Phil Johnson" <pjohnson@co.jefferson.wa,us>
"Leslie Locke" <lIocke@co.jefferson.wa,us>
Saturday, November 07. 200911:15 AM
FW: Public Comments UGA
From: WILLIAM A MILLER[SMTP:ALIBERALl4@MSN.COM]
Sent: Saturday, November 07,200911:13:50 AM
To: David Sullivan; John Austin; Phil Johnson
Subject: Public Comments UGA
Auto forwarded by a Rule
To: Jefferson County Board of County Commissioners
David Sullivan, Phil Johnson, John Austin
Subject: Irondale Port Hadlock UGA
Commissioners,
To still comply with state law, but to be more consistent with some of the concerns expressed by the public I am
proposing two changes, for your consideration, to the JCC 18.18 text submitted to you in October 2009 by the
Jefferson County Planning Commission.
JCC 18.18.060 Development requirements and performance standards.
In the first sentence delete the words "to all" and add the text that is bold and underlined so the sentence will
read:
"The following development requirements and performance standards apply according to and specifically for
the zoning of the property proposed for develoopment within the lrondale and Port Hadlock urban growth area
(UGA)."
JCC 18.18.060 (4)(b)
insert the bold and underlined text between the words "located" and "outside" in the first sentence beginning
with the word "If'.
"If the proposed use or major modification is located within a commercial or industrial zone of the UGA, but
outside of a phased sewer service area where sewers are planned the allowed uses under this chapter (18.18)
may use an on-site septic system consistent with state law (WAC 246-272A - On-Site Septic Systems).
The no-protest, decomission and connection regulations are addressed in 18.18.060 (4) (e), (4) (c) and (4) (d)
Thank youJor your consideration.
William Miller
2023 E. Sims Way #360
Port Townsend, W A 98368
11/9/2009
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Page 1 of 1
HEARING; RECORD
.
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From:
To:
Sent:
Attach:
Subject:
"George Yount" <gyount@olypen.com>
<jeffbocc@co.jefferson.wa,us>
Saturday, November 07,2009 11 :20 AM
Jefferson County UGA Testimony for Nov 9th,doc
Testimony for the Irondale/Port Hadlock UGA
Jefferson County Board of County Commissioners
The attached document is my testimony regarding the IrondalelPort Hadlock Urban Growth Area.
Sincerely,
George B. Yount
1119/2009
+~-J" ..
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,--
George B. Yount
717 _25th Street
Port Townsend WA 98368
November 7,2009
Board of County Commissioners
Jefferson County Court House
PO Box 1220
1820 Jefferson St.
Port Townsend, WA 98368
RE: Irondale/Port Hadlock Urban Growth Area Development Standards Revision
Gentlemen,
The Western Washington Growth Management Hearings Board, Case No. 03-02-0010
prescribed a sufficient road map to reach GMA compliance for the Irondale/Port Hadlock
UGA. It has been a long arduous task, and the WWGMHB has acknowledged the
county's due diligence and efforts to conform. Compliance Order Case No. 07-2-0012c,
August 12, 2009, points out that the journey to completion now rests with one final hurdle,
the adoption of an ordinance clarifying which development standards apply prior to sewer
availability.
The Jefferson County Planning Commission's recommendation stipulates which
development standards apply and brings Jefferson County's Irondale/Port Hadlock UGA
into compliance. I support the Jefferson County Planning Commission's
recommendations.
I also support the boundary of the UGA is the map identified as Figure 2-1 in the planning
document. There are a number of parcels along the west side SR-19 that have been in
development limbo because of the sewer service issue. The WAC codes do allow interim
septic systems for commercial and industrial providing that these developments are
required to hook into a sewer system when the system becomes available. Jefferson
County now has this clause as a condition of development.
Infrastructure is a critical part of economic development. There is a fine line between "the
chicken or the egg" when it comes to the development of the lrondale/Port Hadlock UGA.
It is clear to me that providing a sewer system and an interim mechanism for development
along the west side of SR-19, we will be broadening the economic base of Jefferson
County and resolving a health and safety issue by collecting and treating sewer water.
urge you to approve the Planning Commissions recommendations,
Sincerely,
George B. Yount
ec. wee
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Page 1 of 1
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From:
To:
Cc:
"Chris Riffle" <cjriffle@plattirwin.com>
<d su II ivan@co,jefferson.wa.us>; < pjohnson@co.jefferson.wa.us>; <jausti n@co,jefferson.wa.us>
<joycemdvm@gmail.com>; "'Gary Colley'" <grcolley@plattirwin.com>; "'AI Scalf"
<ascalf@co.jefferson,wa.us>; <dalvarez@co.jefferson.wa,us>; <jpeterson@co.jefferson.wa,us>
Saturday. November 07. 2009 2:17 PM
Exhibit Dpdf; Exhibit C,pdf; Exhibit B.pdf; Exhibit Apdf; 11-5 Letter to BoCC,pdf
Sent:
Attach:
Dear Commissioners:
Attached is a letter being submitted on behalf of Dr. Joyce Murphy related to your consideration of appropriate
transitional zoning plans for the Hadlock UGA prior to sewer availability. The letter presents a plan for resolution of
issues of concern regarding this topic, and your review of the letter prior to the November 9,2009 meeting would be
appreciated. Thank you.
Best Regards,
Chris
CONFIDENTIALITY: This message is from the Platt Irwin law firm. and contains information which may be confidential
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REQUIRED IRS CIRCULAR 230 NOTICE: Any advice expressed as to tax matters was neither written nor intended to be
used, and cannot be used. by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S, tax law
or for the purpose of complying with IRS Circular 230.
Christopher J. Riffle
Platt Irwin Law Firm
403 South Peabody Street
Port Angeles, W A 98362
Phone: (360) 457 -3327
Fax: (360) 452-5010
1119/2009
...,
Gary R. Colley
Stephen E. Oliver
Stephen C. Moriarty
David H Neupert
Pattick M. Irwin
Simon Barnhart
Christopher J. Riffle
(Also licensed ill Nebraska)
~E~~j B1~n~~f]
Sequim Office
495 West Alder Street
(360) 681-5000
LAW FIRM
POlt Townsend Office
914 Washington Street
(360) 385-4399
Bart G. Irwin (Retired)
Frank B. Platt (1926-2009)
Stanley A. Taylor (191 1- 2001)
403 South Peabody
Port Angeles, Washington 98362
(360) 457-3327
Fax (360) 452-5010
Email: cjriftle@plattirwin.com
Please address all mail to the
Port Angeles Office
November 5, 2009
David Sullivan, County Commissioner
Phil Johnson, County Commissioner
John Austin, County Commissioner
Jefferson County Courthouse
P.O. Box 1220
Port Townsend, W A 98368
Re: Irondale Community Action Neighbors v. Jefferson County
WWGMHB Case Nos. 03-2-0010, 04-02-0022 and 07-2-0012
Dear Commissioners:
During the October 26, 2009 meeting ofthe Board of Commissioners for Jefferson County
(the "Board"), two mutually exclusive plans were presented to !he Board in connection with
achieving Growth Management Act ("GMA") compliance for the planned Port Hadlock Urban
Growth Area (the "UGA"). While the issues related to achieving GMA compliance are complex and
challenging, there is a fairly simple compromise between these two plans which would bridge the
gap between the interests of the County in achieving GMA compliance and those property owners
who would be detrimentally affected by the plan proposed by Jefferson County officials at the
meeting.
This letter is being written on behalf of one such propeliy owner, Dr. Joyce Mw-phy. Bclow
we address issues with the plans presented by the County officials and the Planning Commission,
and present an alternative plan which we believe meets GMA requirements with respect to the UGA
and will satisfy frustrated property owners.
~
David Sullivan, County Commissioner
Phil Johnson, County Commissioner
Jolm Austin, County Commissioner
November 5, 2009
Page 2
Executive Summarv of/he Plan. The fundamental component of the plan proposed by Dr.
Murphy relates to the transitional1ural zoning map to be used for property classifications prior to
sewer availability. Dr. Murphy proposes reasonable modification of the map proposed by the
Jefferson County Department of Community Development ("DCD") to control transitionallUral
zoning such that properties within the UGA which will be designated UGA Commercial or UGA
Light Industrial upon sewer availability are classified General Crossroads or Rural Village Center
dming this transitional period. These properties are unquestionably located in commercial/industrial
areas of the UGA - not residential. It is unreasonable and illogical to require these property owners
to retain a residential zoning classification in the interim period.
Upon modification of the applicable transitional zoning map, tile language proposed by the
DCD with respectto Chapters 18.15, 18.18 and 18.19 ofthe JCC, should be retained. As proposed,
Chapter 18.19 allows for interim septic use prior to sewer availability, and, presuming the relevant
properties within the UGA have the appropriate rural zoning classification, commercial development
within the UGA may occur prior to sewer availability so long as property owners agree to
decommission septic systems upon sewer availability. See proposed JCC 18.19.120(2).
The foregoing plan is the most direct means for achieving GMA compliance for purposes of
the present action pending before the Western Washington Growth Management Hearings Board
("WWGHMB") and also satisfaction of the GMA's goals with respect to encouragement of
development and promotion of business opportunities, See RCW 36. 70A.020(1) and (5). This plan
will also allow owners of affected properties within the UGA to conunence conunercial development
with interim septic system use.
The vrovosed Transitional Zoninf! Mavs are vroblematic. The fundamental problem with
respect to the ability of Dr. Murphy and other like-kind "commercial" property owners to use interim
septic systems prior to sewer availability is in the map proposed by the Jefferson County officials for
Transitional Rural Zoning prior to sewer availability.
The DCD proposes retaining the rural designations for properties as they currently exist until
sewer availability (a copy of the DCD's proposed map is attached hereto as Exhibit A) (the "DeD
Map"). This means that property such as that owned by Dr. Murphy will retain its residential zoning
classification for the period of time it takes the County to make sewer "available" - then, the
property will convert to UGA Commercial. Based on the long-term plan for the UGA, the County is
clearly not interested in residential development on these properties because they are located in
commercial core areas. Nor are the owners of such properties interested in residential development.
David Sullivan, County Commissioner
Phil Johnson, County Commissioner
John Austin, County Commissioner
November 5, 2009
Page 3
Commercially developable property is simply more valuable. The owners of these properties will
have very little incentive to do anything with their property because of the prospect of it being up-
zoned upon sewer availability. Instead, these property owners are left with two choices - do nothing
with the property or cut their losses and leave town.
To address the problems inherent with the DCD Map, the Planning Commission proposes
adoption of a rural zoning map wherein the UGA zoning designations prior to sewer availability will
be identical to those for the UGA when sewer is available. (a copy of the Planning Commission's
map is attached hereto as Exhibit B) (the "PC Map"). It is likely the PC Map will not satisfy the
WWGMHB as to GMA compliance. In its Recommendation with Findings and Conclusions, the
Planning Commission expressly states that "[t]hese standards will apply to all development in the
Urban Growth Area and will allow development at urban levels on interim septic systems in advance
of sewer availabilitv." [Emphasis added.]
The GMA does not permit development at "mban densities" without the availability ofmban
services - including sewer. RCW 36.70A.020(12). While it is unclear what development at "urban
densities" means in a commercial/industrial context, if the pre-sewer and post-sewer zoning maps are
identical, there is a strong risk that the WWGMHB will find the Planning Commission's proposed
transitional rural zoning scheme non-compliant with the GMA because ofthe risk that development
will occur at urban densities within the UGA immediately. Thus, the PC Map probably should not
be adopted.
Reasonable ModirlCation of tlte DCD Map to reflect a commitment to commercial
development in the interim period is appropriate.
The GMA sets forth certain goals/purposes which are supposed to be achieved under the Act.
(see RCW 36.70A.020). Two such goals are relevant here:
a. Encourage development in urban areas where adequate public facilities and services
exist or can be provided in an efficient maImer (RCW 36. 70A.020(1 )); and
b. Encourage economic development, promote economic opportunity, promote the
retention and expansion of existing business and recruitment of new businesses.
(RCW 36.70A.020(5)).
David Sullivan, County Commissioner
Phil Johnson, County Commissioner
John Austin, County Commissioner
November 5, 2009
Page 4
Jefferson County's Transitional Rural Zoning plan is clearly inconsistent with both of these
goals - indeed it discourages development within the UGA, stifles economic opportunity and
encourages existing small business owners such as Dr. Murphy to look elsewhere to develop
property for their business. While the Planning Commission has developed a plan to address these
concerns, the plan is likely to run into some resistance by the WWGMHB as to its compliance with
the GMA.
The most direct and effective way to address this issue is to change the zoning designation for
those propelties zoned "Rural Residential" during the transitional period (according to the DCD
Map) which will, upon sewer availability, be zoned "UGA Commercial" or "Light Industrial." These
designations should be changed to some appropriate rural commercial or industrial classification for
the pendency of the interim period prior to sewer availability (probably "General Crossroads") (a
proposed map is attached hereto as Exhibit C).
These propeliies are already located in areas with commercial/industrial characteristics, and
will, upon sewer availability, receive such zoning classifications. It is illogical to require the owners
of these propelties to (i) develop the properties as residential propelties (as each would be zoned
under the DCD plan) until sewer availability - then to develop as UGA Commercial, or (ii) do
nothing with the property until sewer availability (which is what Dr. Murphy has been told she would
have to do under the DCD plan because her propelty is too small to develop under the rural
residential classification).
With apPl"Opriate modification to the DCD Map, the Jefferson COWltv Code prolJosed bv
DCD will allow for commercial development with interim seTJIic systems.
Under the DCD' s proposed plan, Chapter 18.18 ofthe JCC will control development within
the UGA after sewer availability. See proposed 18.18.010 ("Chapter 18.18 .rCC development
regulations shall be used for urban development that has urban services available."). Newly created
Chapter 18.19 (entitled "Transitional Rural Development Standards of the IrondalelPort Hadlock
Urban Growth Area") will control "development in those areas in the UGA that do not yet have
sewer available." See proposed .TCC 18.15.011; 18.18.010; and 18.19.110. In an attempt to address
concerns regarding interim septic use prior to sewer availabili ty, the Planning Commission proposes
elimination of Chapter 18.19, and incorporation of some of the concepts with respect to interim
septic system use into Chapter 18.18.
Because the WWGMHB required the County to adopt "an ordinance clarifying which rural
development standards apply prior to sewer availability," the DCD's development of a new JCC
David Sullivan, County Commissioner
Phil Johnson, County Commissioner
John Austin, COlrnty Commissioner
November 5, 2009
Page 5
chapter for this purpose is logical - it creates a clear distinction between which rural development
standards will apply prior to sewer availability, and then which standards will apply following such
availability. The Planning Commission's plan, though well drafted and clearly intended to satisfY
the WWGMHB requirement, does not preserve this clear distinction. For this reason, it is proposed
that the Board retain the DCD's proposed JCC language. Thus, for purposes of commercial
development within the UGA prior to sewer availability, the proposed Chapter 18.19 should be
consulted.
JCC 18.19.110 provides: "The transitionaltural zoning is depicted on the maplrondale and
Port Hadlock UGA Transitional Rural Zoning." This is the DCD Map. If the DCD Map is
modified as proposed above, then this language should be retained, and simply be a reference to the
new map wherein property owners such as Dr. MUlphy would have an interim zoning designation
which would allow commercial development on their propetties.
With this change ofthe map, the proposed language for Chapter 18.19 appears to allow for
use of interim septic systems for development prior to sewer availability. JCC 18.19. I 20(2)
provides:
"Conditions to Interim On-Site Septic Systems and connection to future sewer
service. If a septic system is proposed for placement in the planned and adopted 20-
year sewer service area, for interim use prior to sewer availability, the county shall
issue any approval for the septic system with a condition that it be decommissioned
and the property connected to the sewer system within one year of sewer availability,
defined as when the sewer extension is within 200 feet of tile closest property line."
[emphasis added].
In addition, JCC ]8.19.120(4) provides:
"Nothing in this section shall be construed as prohibiting the placement of an on-site
septic system in the UGA, unless the property is located within 200 feet of an
existing sewer service area which has capacity to accommodate the proposed
development."
SUf;!f;!estions that the DCD if/lall cannot be modified are not correct.
In the August 12,2009 Order finding non-compliance, the WWGHM13 stated: "the Board
finds that until such time as the County adopts an ordinance clarifying which rural development
David Sullivan, County Commissioner
Phil Johnson, County Commissioner
John Austin, County Commissioner
November 5, 2009
Page 6
standards apply prior to sewer availability, it remains out of compliance with the requirement of
RCW 36.70A.110 and RCW 36.70A.020(l) and (12)." In the past six years, the County has invested
substantial time and money navigating its way through several confusing non-compliance issues.
Having satisfied the WWGMHB with respect to each of these issues, all that remains is for the
County to tell the WWGMHB which rural development standards will apply before sewer is
available.
Importantly, the WWGMHB did not say (and the GMA does not require) that the County
must use or retain a specific set of rural development standards (or a specific map) - rather, all that
was requested was some indication of what the rural zoning standards will be. The DCD Map and
PC Map both do this. But there is nothing expressed within the GMA or by the WWGMHB
precluding an alternative map from being used.
David Alvarez has recently suggested that, at this stage in UGA planning, the map cannot be
changed. It is unclear why he is of this opinion. This is the stage where the Board is tasked with
gauging and adopting the most appropriate plan for the UGA. If this means adopting a map different
than that suggested by the DCD - then this is the time to do it.
The GMA does not forbid interim use of sevtic svstems for commerciallindustrial
develovment vrior to sewer availabilitv.
Jefferson County officials integrally involved with the County's effort since 2003 to obtain
the WWGMHB's determination that the UGA is compliant with the GMA, including Joel Peterson,
Al Scalf and David Alvarez (collectively the "County Officials"), have expressed publicly and
privately to Dr. Murphy, the Board and others, that certain landowners within tlle UGA will not be
permitted to commercially develop tlleir property until the planned sewer system is available to their
respective properties. As their basis for such opinion, the County Officials have cited (i) to the
concurrency requirements under the GMA]; (ii) to Conclusions of Law expressed by the WWGMHB
in the May 31, 2005 Final Decision and Order ("FDO"), wherein the WWGMHB determined
1 Although never explicitly referred to as the COWlty'S "concurrency obligations," the County
officials have often made references to the non-pcrmissiveness of development at urban densities
without the provision of urban facilities. This is, in essence, a restatement of the twelfth goal of
the GMA: "(12) Public facilities and services. Ensme that those public facilities and services
necessary to SUPPOlt development shall be adequate to serve the development at the lime the
devclopment is available for occupancy and use without decreasing current service levels below
locally established minimum standards." RCW36.70.020(l2).
David Sullivan, County Commissioner
Phil Johnson, County Commissioner
John Austin, County Commissioner
November 5, 2009
Page 7
components of the County's planned sewer system to be non-compliant with the GMA; (iii) other
decisions by the WWGHMB in this case; and (iv) thc WWGMHB's handling of a similar issue with
the Mason County/Belfair UGA.
The undersigned has read the May 31,2005 FDO, other orders issued by the WWGMHB
with respect to this matter, as well as orders issued by the WWGMHB in other umelated matters in
which similar issues have been addressed (including the Mason County decision referenced by the
County Officials). Based on this review, it is clear the County Officials have reached an erroneous
conclusion regarding concurrency requirements of the GMA and the WWGMHB 's statements with
respect to interim use of septic systems in commercial development until sewer availability.
The County Officials' misinterpretation of the GMA and WWGMHB Orders will stifle and
discourage commercial development within the UGA - the antithesis of several of the primary goals
of the GMA (See RCW 36.70A.020(l) and (5) [cited above]). [fthe County proceeds under this
misunderstanding, small business owners and land developers such as Dr. Murphy will be forced to
leave the UGA community rather than wait six to twenty years for the planned sewer system to be
available to their property.
a. In findinf! the County's planned sewer system non-compliant. the WWGMHB has not
eX/Jressly addressed the /Jermissibility of interim use of sevtic systems under the GMA.
In earlier compliance hearings related to the UGA, the County has argued that the GMA
permits interim use of septic systems within urban growth areas. For example, the County argued:
"... it is not clearly erroneous to allow the interim use of on-site septic until a scwer
system is fully operational, when other urban services are available. The County cites
previous statements of the Board in regard to this area and Abenroth v, Skagit
County, WWGMHB Case No. 97-2-0067c in which contends the Board allowed for
interim use of septic on one-acre parcels until sewer was available."
(May 31, 2005 FDO at 14). The County also stated:
"... even though the newly adopted development regulations allow urban intensities,
development at this scale will not happen, because the County's health department
regulations will restrict the intensity and densities allowed due to the use of an
interim septic. The County says that allowing for urban densities is appropriate for
commercial and industrial designations, because the County requires these applicants
. ,
David Sullivan, County Commissioner
Phil Johnson, County Commissioner
John Austin, County Commissioner
November 5, 2009
Page 8
to sign an agreement that they will connect to the sewer when it is available, and this
is an area where the County plans to have sewer available within the next six years.
Further, the County projects that the risk of large commercial stmctures OCCUlTing
without the guarantee of sewer is slight since applicants for those developments
would not want to install interim septic systems and then connect to the sewer
system. "
(May 31, 2005 FDO at 20).
The WWGMHB did not address the County's arguments regarding interim septic system use.
Indeed, in no WWGMHB order regarding the UGA has the WWGMHB addressed the issue of
whether the GMA permits interim use of septic systems prior to sewer availability.
In the May 31, 2005 FDa, the WWGMHB found the County's sewer plan to be non-
compliant because it "contemplates sewcr service to the commercial core of the new UGA,
"optional" sewer service in those areas adjacent to the sewer-served commercial core, and an
'unsewered' area that is not planned to receive public sanitary sewer service over the next 20 years."
(May 31,2005 FDa at 2). The WWGMHB was faced with a development plan that permitted
development at urban levels in celtain areas of the UGA for which there were no plans to provide
public sewer service- something the WWGMHB found to be nmdamentally non-compliant with the
GMA.
While the WWGMHB never formally reached the question of whether interim septic system
use is permissible under the GMA in the May 31,2005 FDO, the WWGMHB informally expressed
the opinion that interim use of septic systems for commercial development within UGAs is allowed.
Specifically, the WWGHMB stated: "Where urban levels of development have not been permitted
until sewer is available, the Board has found the use of interim Oil-site septic systems compliant
with the RCW 36. 70A.II 0." (May 31, 2005 FDa at 18) (emphasis added).
In an October 20,2009 email to the Board, David Alvarez stated that "the Hearings Board
has gone as far as saying allowing urban density development on rural services, i.e., septic, gives rise
to invalidity because it substantially interferes with GMA Goals #1, #2, and #12." (a copy of the
October 20, 2009 email isattachedheretoasExhibitD).Mr. Alvmez fails to provide any citation to
an order in which the WWGMHB expresses such an opinion, and we have been unable to locate the
same.
Attached to the email.Mr. Alvarez includes a chart summarizing the "history of challenges to
David Sullivan, County Commissioner
Phil Johnson, County Commissioner
John Austin, County Commissioner
November 5, 2009
Page 9
urban development regulations inside the UGA." In it, he includes quotation or paraphrase from
various WWGMHB orders in the case involving the UGA and also a case from Mason County.
Noticeably absent from this language is any expression by the WWGMHB that interim use of septic
systems prior to sewer availability for commercial development is impermissible under the GMA.
b. The WWGMHB has vreviously exvressed its avvroval for interim use ofsevtic systems
for commercial develovment within UGAs until sewer svstem availability.
Although it does not appear that the question of whether use of an interim septic system is
permissible within UGAs has been addressed by the WWGMHB in the case involving the UGA, the
WWGMHB has previously validated use of temporary septic systems for commercial development.
In a PDO issued in the case of Advocates for Responsible Development and John E. Diehl v. Mason
County, (Case No. 06-2-0005, August 14, 2006), the WWGMHB addressed a variety of issues
related to the Belfair UGA formed within Mason County. On page 34 of the FDO, the WWGMHB
quoted language from the Mason County Development Code:
"If a septic system is proposed for placement in an area identified for sewer line
extension in the County's Capital Facilities Plan, for new development other than
single family residential construction, the County shall issue any approval for the
septic system with a condition tltat It be decommissioned and tlte property connected
to the sewer system within one year of sewer extension. Within this paragraph, "new
development" means any development which requires wastewater/sanitary sewer
provisions which cannot be met with an existing system." [Emphasis added.]
Notice the striking similarity between this section and JCC S 18.19.120(2) quoted above. In
reference to this section from Mason County's Development Code, the WWGMHB stated that it
"impose[s] appropriate J'estrictions on commercial/industrial/mixed use growth until public
sewer is available to the Belfair UGA." (emphasis added). Clearly the WWGMHB has expressed
approval for commercial/industrial development using interim septic systems.
It is important to note that in his October 20, 2009 email to the Board, David Alvarez
includes citation to a diffcrent order issued by the WWGMHB in the Mason County case, but he fails
to acknowledge the foregoing language which clearly expresses approval for interim septic system
use for commercial development prior to sewer availability.
David Sullivan, County Commissioner
Phil Johnson, County Commissioner
John Austin, County Commissioner
November 5, 2009
Page 10
c. The DCD's lJrolJosed lCC ChaDter 18.19 lJermits interim seotic use until sewer
availability.
Oddly, the County's position with respect to interim use of septic systems (as stated by the
County Officials) is inconsistent with language within the development regulations proposed by the
County in Chapter 18.19 of the JCC.
This proposed language clearly permits interim septic system use until the UGA's sewer system
is available. This provision is also consistent with the County's stated position in the May 31,2005
FDO that "it is not clearly erroneous to allow the interim use of on-site septic until a sewer system is
fully operational." (May 31, 2005 FDO at 14).
Conclusion.
According to David Alvarez, "the County is very close to achieving compliance with the GMA
for the UGA and should be found to be compliant once the County adopts an Ordinance that
describes the rmal-style and rural-density development regulations that must control PRIOR to sewer
availability." (October 20,2009 email to the Board). This does not mean, however, that the Board
must accept the DCD's transitional rural zoning recommendations as the onlv path to achieving
GMA compliance. Under the DCD's plan, several property owners within commercial areas of the
UGA will be unable to meaningfully develop or use their land until sewer is available because their
property is zoned residential dming the transitional period. This is true even though the properties
are unquestionably located within commercial core areas of the UGA. The practical result will be
frustration of land owners and business owners who will undoubtedly take their business
development plans elsewhere.
If the affected propelties were converted to a commercial zoning classification during this
transitional period, then the property owners could begin commercially developing their properties
with plans to use interim on-site septic systems, which would be decommissioned upon sewer
availability. This can be accomplished by modifying the DCD Map to reflect the classification
change for the relevant properties. With this simple change, the DCD's proposed lCC language
David Sullivan, County Commissioner
Phil Johnson, County Commissioner
John Austin, County Commissioner
November 5, 2009
Page 11
could be retained, the County would likely be found GMA compliant, and the goals of the GMA
requiring encouragement of development and business opportunity would be achieved. Clearly, this
is the best result for all involved.
Best Regards,
PLATT IRWIN LAW FIRM
{jyttffiy' '\ /
. ~. Colley
I.
v
Christopher 1. Riffle
GRC:cjr
cc: Dr. Joyce Murphy
Bill Miller
David Alvarez
Al Scalf
Joel Peterson
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Joe! Peterson
From:
David Alvarez
Sent: Tuesday, October 20. 2009 4:28 PM
To: David SJllivan; Phil Johnson; John Austin; Philio Morley'
Cc: CAD Staff; AI Scalf; Stacie Hoskins; Joel Peterson
Subject: UGA: Information about development standards and capitai facilities planning
Attachments: History of challenges to urban development regulations inside the UGA and_pdf
NOT CONFIDENTIAL
Attached as a PDf IS a matrix that expiains the history of the two primary issues that have been the
obstacles to this County obtaining and holding a non-municipal UGA that is compliant with the GMA_
The first column, issue "D" from the Final Decision and Order of May 2005, relates to development
regulations. In that column the Hearings Board has repeatedly stated that urban-style development at urban
densities cannot occur on septic, interim or not. In fact, the Hearings Board has gone as far as saying allowing
urban density development on rural services, i.e., septic, gives rise to invalidity because it substantially interfe~5
with GMA Goals #1, #2 and #12, Recall that with invalidity the Durden of proof switches to the county to
overcome invalidity, whereas if an ordinance is found to be non-compliant, then the Petitioner has to prove that
the cure offered for the non-compliance Is also in fact non-compliant.
The County is very close to achieving compliance with the GM/I, forthe UGA and should be found to be
compliant once the County adopts an Ordinance that describes the ,ural-style and rural-density development
,egulations that must control PRIOR to sewer availability. The Western WA Growth Mgmt. Hearings Soard has
been very clear in this regard and said it yet again in the August 2009 Compliance Order when they found our
only shortcoming to be that the County does not have in place the rural standards that must control inside the
UGA until sewer is available, defined as within 200 feet of the property line for any given parcel.
While this is unfortunate for Dr. Joyce Murphy, the Commissioners should know that staff met with Dr.
Murphy's attorney (Gary Colley) in early October 2009 and attorney Colley walked away with what he described
as a clearer understanding of our logic.
The second column, issue 'T' from that same FDO of May 2005, I'elates to Capital Facilities Planning
and we are compliant in that regard.
This e-mail and its attachment should be shared with the Planning Commission members and included
in t.he record relating to the adoption of an Ordinance to achieve compliance before our mid-November
deadline,
David Alvarez, Chief Civil DPA
10/22;2009
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