HomeMy WebLinkAboutItem B UpdateBOARD OF COUNTY COMMISSIONERSCOUNTY OF KITTITASSTATE OF WASHINGTONRESOLUTION NO. 2016-A RESOLUTION RESCINDING ADMINISTRATIVE CONDITIONAL USE PERMITACU-14-00005WHEREAS, Community Development Services (CDS) issued a State Environmental PolicyAct (SEPA) determination and an Administrative Conditional Use Permit(ACUP) to Mr. McDonald for a marijuana growing and processing operation; andWHEREAS, timely appeals were filed of both the SEPA determination and the issuance of theACUP; andWHEREAS, after due notice, briefing, and hearing, the BOCC, on September 15, 2015 inResolution 2015-123, upheld the issuance of the SEPA determination andremanded the issuance of the ACUP for determination if the application meetscounty standards for provision of water under Ch. 13.35 KCC and review ofwhether the application meets the criteria set forth in Ch. 69.50 RCW andCh. 314.55 WAC - specifically whether the operation of Mr. McDonald is within1,000 feet of a school; andWHEREAS, Appellants McDowell timely filed an appeal under the Land Use Petition Act(LUPA) which was dismissed because Resolution 2015-123 did not constitute afinal land use decision for purposes of LUPA; andWHEREAS, on remand, CDS found that the "school" did not meet the statutory definition of aschool under Ch. 314-55 WAC and that the applicant had demonstrated adequateprovision of water; andWHEREAS, the BOCC held continued hearings, after due notice, on March 15^ and 30^,2016.FINDINGS OF FACT AND CONCLUSIONS OF LAW1. The BOCC finds that McDonald filed a pair of building permits in 2014, neither of whichwere ever appealed and so are now legally beyond challenge.
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2. The BOCC finds these building permits for a fence requested information as to if the
intended use was for an I-502 enterprise, and that the applicant disclosed affirmatively to
each.
3. The BOCC finds that these building permits and the associated disclosure of intended use
vests the applicant to the regulations regarding that use at the time of the complete
building application.
4. The BOCC finds that the issue of the presence or absence of a school was adequately
dealt with in the MDNS mitigation conditions.
5. The BOCC finds the first seven of the appellants' challenges to the MDNS are not new
information, are not specific to McDonald's operation, and were adequately considered
and dealt with when the county made the legislative zoning decision that McDonald is
vested to.
6. The BOCC finds the typo in the notice of SEPA decision of no legal import, especially
since the appellants were able to make a proper and timely appeal.
7. The BOCC finds the process for SEPA was correctly administered — there was no need
for a second comment period because plenty of comment was received, none of that
comment was new information, none of that comment was specific to McDonald's
proposed operation, and no second comment period is statutorily required.
8. There also was no statutory requirement for the county to list proposed conditions
because it was initially considering issuing a DNS instead on an MDNS.
9. The BOCC finds the checklist was adequately filled out.
10. The BOCC finds the SEPA mitigations adequate.
11. The BOCC unanimously denied the SEPA appeal.
12. The BOCC finds that the building permits vested McDonald to disclosed uses.
13. The BOCC finds that any irregularity as to the issuance of the building permits is now
irrelevant because they were never appealed and are now unchallengeable and legally
valid.
14. The BOCC finds that the vast majority of the arguments presented by appellants
McDowell, and the material they admitted, is not specific to McDonald's operation, is
instead material relating to marijuana in general that the BOCC had already considered
when it made its initial zoning decisions, and so is not new information.
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15. The BOCC finds that the McDonald ACUP is desirable and essential to the public as
required under KCC 17.60A.015(1).
16. The BOCC finds that the McDonald ACUP is not detrimental to the public as required
under KCC 17.60A.015(2)(a).
17. The BOCC finds that the McDonald ACUP is not an economic burden upon the public,
there is no evidence of detriment as to this operation as required under KCC
17.60A.015(2)(b).
18. The BOCC finds that it has independent authority to determine compliance with Ch.
69.50 RCW and Ch. 314.55 WAC as an exercise of its zoning authority and apart from
merely recognizing the issuance of a license by the Liquor and Cannabis Board.
19. The BOCC finds that Kittitas County Code does not describe marijuana production or
processing as agriculture.
20. The BOCC finds that, under such authority as RCW 82.04.213(3) and Kim v. PCHB, 115
Wn.App. 157 (2003), marijuana production and processing is considered an industrial
use.
21. The BOCC finds that it was not demonstrated, as required by KCC 17.60A.015(3), how
the McDonald ACUP met the development standards of Kittitas County Code,
specifically, how there was adequate provision for potable (not irrigation) water for an
industrial use under Ch. 13.35 KCC.
22. The BOCC finds that Ch. 314.55 WAC's provision concerning proximity to a school is
satisfied because the "school" in question here does not meet the statutory definition of a
school.
23. The BOCC finds that there is adequate protection for livestock, pets, and humans, no
detriment to scenic views, nor an increase in crime caused by the proposed project, but
because water use is not mitigated, the criteria in KCC 17.60A.015(4) are not satisfied.
24. The BOCC finds that the requirements in KCC 17.60A.015(5) are met because there is no
evidence, specific to this project, of harm to livestock or increase in crime.
25. The BOCC finds that the requirements in KCC 17.60A.015(6) are satisfied and that the
material and argument to the contrary is not specific to this project, but rather generally
about marijuana, and is not new because the BOCC considered all of this when it
established marijuana production as an administrative conditional use in the zone.
26. The BOCC finds that the requirements in KCC 17.60A.015(7) are satisfied and that the
material and argument to the contrary is not specific to this project, but rather generally
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about marijuana, and is not new because the BOCC considered all of this when it
established marijuana production as an administrative conditional use in the zone.
NOW, THEREFORE BE IT RESOLVED AND IT IS HEREBY ORDERED, that (1) the
SEPA appeal is denied, and (2) the appeal of ACU -14-00005 is granted and ACU -14-00005 is
hereby rescinded.
ADOPTED this day of 92016.
Clerk of the Board
APPROVED AS TO FORM:
Deputy Prosecuting Attorney
BOARD OF COUNTY COMMISSIONERS
KITTITAS COUNTY, WASHINGTON
Obie O'Brien, Chairman
Paul Jewell, Vice -Chairman
Resigned
Gary Berndt, Commissioner
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