Comments on the UDC Draft

Sent: 4:17 PM October 30, 2000
To: Jefferson County Planning Commission

Comments of Joe Breskin to the Jefferson County Planning Commission concerning language of the DRAFT UDC as available on Jefferson County Website in .pdf format


It is very awkward to comment on a document when one has been assured that it is flawed by errors and omissions that have in fact already been corrected.

It is also hard to comment on the success of a document at achieving its goals and objectives when it is not clear what the deliverable was expected to be. In many ways public review of this document appears to be premature.

Because it is all I have to work from, the following comments refer specifically to the .pdf version of the UDC printed from the county's website, and attempts are made in these comments to harmonize its content with the August 1999 FSEIS and the August 28 1998 ACP.

These comments are NOT comprehensive, but instead focus on what appear to be glaring inconsistencies between the Adopted Comp Plan and the proposed UDC that exceed even the latitude permitted by the FSEIS and hence should require at the least a SEPA review process that involves public discussion of fundamental changes in zoning and a complete declaration of potentially significant adverse environmental impacts that would follow its adoption, as opposed to adoption following a simple administrative SEPA Action of granting it a DNS.

For what it's worth, the FSEIS calls for "review", not "action".

Comments also include suggestions for surgical steps that could be applied to remedy some of the most glaring inconsistencies between the DRAFT UDC and the requirements of GMA.

Comments on Content:

Use Table 3-1 referred to repeatedly in the UDC text exempts certain Industrial Uses from many review processes. I will assume for the purpose of further discussion that the Use Table 3-1 is a gross oversight and in no way reflects the intentions of the BOCC, County staff or the Consultant and is simply a case of "the devil made me do it" that will be remedied before the DRAFT is finalized and that in the case of Asphalt Batch Plants, these uses will be forbidden ("NO") in all residential areas and subject to conditional use permits in Commercial and Industrial zones

One of the more significant failures of the ACP and of the DRAFT UDC is the lack of guidance either provides as to how various land use overlays "stack" and what precedence occurs (i). In particular, guidance is missing or unclear as to how to resolve conflicts that occur due to the overlay of Resource Lands and Critical Areas. No guidance is provided in the Definition of Overlay District in Definitions Section 2 page 13. Overlay Districts are described as areas and uses which warrant specific recognition and management.

However the Definition merely states that "provisions of an overlay district shall prevail over any conflicting provisions of this code for the duration of the Overlay District, subject to Chapter 36 RCW".

This situation can be remedied easily if the Definition is amended to address differences between Ephemeral (Voluntary) Overlays such as resource lands and Permanent (Mandatory) Overly Districts such as Shorelines and Critical Areas. The difference becomes clear - one can opt to be included in a Voluntary Overlay such as a Resource Overlay, but participation in a designated Critical Area is MANDATORY. Management that is required in Mandatory Overlay Districts MUST explicitly override any protections offered through participation in Voluntary Overlay Districts.

The UDC is remarkably inconsistent in its treatment of resource lands overlays (ii). Because it is assumed that the primary concern of the landowners is the conversion of forest resource lands (FRL) to non-forestry uses, process is provided to guide this conversion. On the other hand, a similar process is not provided for the review and subsequent mandatory withdrawal of Mineral Resource Lands (MRL) designation.

Many restraints on activities are discussed in UDC Section 4.24, but no process or mandatory review is provided that "sunsets" the MRL designation when commercial extraction is complete.

Protections promised in Section 4.24 and 4.26 are ONLY meaningful if there are no exemptions to its applicability such as preexisting non-conforming or previously permitted uses. Exceptions (contradictions) appear to exist between this Section and Section 3.6.4.g.(1) which discusses Nonconforming uses as follows "Any use or structure in existence on the date the code becomes effective that does not meet buffer requirements ... shall be considered a legal nonconforming use." And 3.6.4.g .(2) which states "Any use or structure for which an application has vested or for which a permit has been obtained ... shall be considered a legal non-conforming use."

This contradiction appears to be capable of rendering either the claims for protection from regulation due to preexisting nonconforming use provided at 3.6.4.g .(1) or (2) OR the protection provided 4.26. against illegal nonconforming uses moot. Section 4.26 states in relevant part "A nonconforming legal use ... is one that did conform with the applicable codes which were in effect on the date of its creation, but no longer complies because of subsequent changes in code requirements."

Illegal Use is defined in Definitions as "Any use or structure which is inconsistent with the current codes or was inconsistent with adopted codes in effect when the use or structure was established. An illegal use is different from a Nonconforming use."

Nonconforming and Nonconforming Use are defined separately in the UDC, but the Definitions (Section 2 page 12 and 13) generally agree that the use has remained the same but its status has been changed from conformity with the code to nonconformity with the code "due to changes in the code requirements".

Likewise protection provided in Section 4.22 at 4.22.1.b., and especially 4.22.1.d. and 4.22.1.e. would appear to be designed to prevent unmitigatable impacts from degrading adjacent properties, but the Use Table 3-1 referred to in 1 exempts certain industrial uses from these review processes.

As noted above, I will assume that the Use Table 3-1 contains numerous gross oversights in their listing of Industrial Uses such as Asphalt Batching operations with and w/o MRL designations as allowed uses in rural residential (RR) zones and that these oversights in no way reflects the intentions of the BOCC, County staff or the Consultant and that this situation will be substantially remedied before the DRAFT is finalized and that in the case of Industrial Uses such as Asphalt Concrete Batch Plants, these uses will be Prohibited Uses ("NO" in the Use Table) in all RR zones and subject to conditional use permits in Commercial and Industrial zones and in Forest and Ag Resource Zones .

Definition of Industrial Use is almost clear as it states: Industrial Use, Heavy or Resource-based "A use engaged in the basic processing and manufacturing of materials or products predominantly from extracted or raw materials or natural resources: a use engaged in storage of, or manufacturing processes using flammable, hazardous, or explosive materials."

Except for the term "basic processing" this Definition adds useful clarity.

Therefore I recommend that the word BASIC be removed from this definition to avoid ongoing arguments over Primary Processing, Secondary Processing, Accessory Processing, etc. as used in other codes and other areas of the ACP and UDC. Mineral Processing is defined as "Activities Accessory to mineral extraction that include material washing, sorting, crushing, or more intensive modification through chemical Processing ... this does not include Asphalt or Concrete Batch Plants"

BMPs are offered in the UDC as means that "prevent or minimize adverse impacts to the environment" (Definitions Section 2 page 3) but guidance appears to be conspicuously lacking in how impacts are to be contained or how buffers are to be employed to mitigate or minimize impacts when and if mineral extraction is permitted on parcels as small as 10 acres. It is our experience that the mineral extraction's impacts and especially the impacts of secondary processing are essentially unbufferable on sites as large as 40 acres in RR-5 zones.

No guidance is provided in the Definition of Buffer Zones which are merely described as "areas designed to separate incompatible uses or activities."

The MRL designation process is not clearly set forth in the UDC. Section 4.24.2 b. requires the applicant to reveal the quantity and quality of the deposits but provides no guidance or other basis to review whether on not this quantity is adequate to support a MRL designation.

In the ACP, the process is also unclear. Page 4-40 states Strategy Designation and Conservation Strategy Action Item 6 "Adopt a final Mineral Lands Ordinance that is in compliance with the requirements of the Growth Management Act" It is not clear if this UDC Section is purported to be that MRL Ordinance, but if it is, then the process it contains needs considerably more detail to be either useful to permit reviewers or to provide the protection of Critical Areas required under GMA .

The Definition of Long Term Commercial Significance no longer addresses MRL designated lands, and appears to be restricted to agricultural and silvicultural production. It is not clear whether this is merely another oversight or a deliberate change in policy. This Definition appears to stand in DIRECT CONTRADICTION of the Definition of Mineral Resource Lands in Section 2 Page 12 which "lands that have known or potential long-term commercial significance for the extraction of minerals." And the Definition of Resource Lands at Section 2 at Page 16 which states: "Agricultural, forest and mineral lands which have long term commercial significance."

Examples of other glaring process problems:

4.24.8.J requires that annual reports be submitted but these reports are not required to address the depletion of the resource on the site or the projected time at which the commercial significance that supports the site's MRL designation will be expired MRL designation of a site w/o remaining extractable mineral resources makes no sense in the context of zoning, since Mineral Extraction will be non-conforming use in virtually all conceivable land use zones. Therefore, the MRL overlay and designation must be provided with a "sunset" process whereby the designation reverts to the underlying zoning, and a time (based on documented rate of depletion) by which time the extraction and reclamation must be complete.

4.24.9.b.(5) calls for appropriate funding and performance bonding as appropriate to maintain reclamation systems, but this requirement misses the fundamental point entirely - this section should require the posting of a performance bond to insure that the BMPs are in fact carried out and adequate, and the bond should realistically reflect the risk posed to adjacent lands and other resources if the BMPs prove to be inadequate. Otherwise, in the event of failure of BMPs the burden of the activity's impacts are placed solely on the public, in contradiction of the purpose of this GMA Comp Plan.

Comments on Process:

It is clear that there is a need for a UDC to provide a development code that can be used by the public and by the County's staff to design and review projects, and it is also clear that in order to be useful and effective at avoiding inappropriate development or creating public liability for private errors, the UDC must somehow resolve the numerous contradictions and the omissions in the Adopted Comprehensive Plan (ACP).

The more effectively the UDC resolves and harmonized that language of the ACP, the more valuable it will be to the community as a whole. It is clear that there are many sections of the ACP that are still missing, and other sections that were adopted w/o full consideration of their meaning or implications, in the last desperate rush to adopt a plan. It appears that we have been directed to do so again; to adopt another document that cannot be reviewed, considered, or understood in its entirety, based on a piecemeal review of DRAFT versions of some of its parts. It is NOT clear to this reviewer that this is what the EIS calls "Phased Review". It should be clear to all parties that the discussion we are having, of scraps of documents prior to or concurrent with staff review, and prior to a review of the content for consistency with adopted code or even suitability is NOT likely to prove to be the "public review" required by law.
Other comments will follow once I have seen a corrected version of the DRAFT document, or through the BOCC review process that is to follow.
Thank you for providing the opportunity to comment on this process and document.

Joe Breskin
346 Hudson Point
Port Townsend, WA
(360) 385 3771


(i.) One of the clearest conflicts, predicted since about 1990, was the conflict between mineral lands and aquifer recharge and ground water protection. This conflict was built into the topography and the underlying surficial geology of the region. Many of the richest gravel deposits outside of the floodplain of the Big Quilcene River occur in lateral moraines and creek-beds left by the retreating glaciers. In many parts of the county these gravel deposits reach al the way to the surface. All that has been required to extract commercial quantities of gravel has been removal of vegetation and the few inches of topsoil that has accumulated over the past 4,000 - 6,000 years, and dig. Unfortunately, these excavations in many cases provide paths directly into aquifers. The process that lead to the ACP attempted to designate and protect ESA's per requirements of the GMA. Previous processes were not wholly successful, hence the County's experience with the Hearings Board.

(ii.) In HB-2929, the County was directed to identify and protect resource lands of long term commercial significance and critical environmental areas from inappropriate development. Legislative intent was reasonably clear at the time: the reason to protect critical areas was to avoid creating situations where administrative decision to permit activities created public liability for damage to the environment. The reason to identify and protect resource lands of long term commercial significance was to prevent irreversible commitment of the resources on or under these lands through inappropriate development on these sites and on adjacent properties that would create an otherwise unnecessarily resource-constrained future. Many years were spent in debate as to what constituted "long term commercial significance" and it was generally accepted by owners of resource lands that they would rather do with out the protection offered by the resource lands overlay than face limitations on their development options in the future. This did not suit the County's ends, as the Comp Plan still needed to identify and designate these lands. Therefore, new designations were adopted that identify resource lands but generally ignore their commercial significance. This discussion of background was offered as it leads the reviewer right into the heart of the UDC's inconsistent treatment of overlay districts.
©Joe Breskin November 2000 - forwarding is O.K. with me
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