HomeMy WebLinkAboutRes-2017-048 CUP DenialBOARD OF COUNTY COMMISSIONERS
COUNTY OF KITTITAS
STATE OF WASHINGTON
CONDITIONAL USE PERMIT APPEAL DISMISSAL
AND
SEPA APPEAL DENIAL
WEBB SMALL SCALE EVENT FACILITY
ADMINISTRATIVE CONDITIONAL USE PERMIT (CV-16-00001)
RESOLUTION NO. 2017-OJj.t
WHEREAS, according to Kittitas County Code Title 15A, relating to appeals and Title 17.60A
Conditional Uses, an open record hearing was held by the Kittitas County Board of County
Commissioners on January 17,2017 and February 7, 2017 for the purpose of considering a
SEPA appeal and Administrative Decision appeal for the conditional use pennit known as the
Webb Small Scale Event Facility CU-16-00001 and described as follows :
An application to obtain pennission to operate a Small Scale Event Facility (8 events or
less per year) on approximately 12 acres which are zoned Commercial Agriculture. The
subject property is accessed off of Badger Pocket Road and located approximately 4.75
miles south of the City of Kittitas at 6280 Badger Pocket Road, in a portion of Section
36, TI7N, RI9E, WM in Kittitas County, bearing Assessor's map numbers
17-19-36000-0016 and 17-19-36000-0025. Proponent: Terra Design Group Inc
authorized agent for Matt Webb, landowner.
WHEREAS, the applicant applied for an essentially identical use in 2012 (CU-12-00003); and,
WHEREAS, following litigation, a SEP A checklist and review was required for the 2012
application (CU-12-00003) by Kittitas County Superior Court; and,
WI·IER 4 , the applicant paid the applicat ion fi
00002) n Fe bruary 8th , 201 Ii r 1ila,1 condili nal, 1I
for nnd s ubmilted a S PA ch cklist (SE-13-
appli ca tion U-12 -000 3); and ,
WHEREAS, Kittitas County Community Development Services conducted a full review of the
SEPA checklist (SE-13-00002) and project and detennined that as proposed, the conditional use
(CU-12-00003) requested would not result in any probable significant adverse environmental
impacts; and,
WHEREAS, as per WAC 197-11-340 the responsible SEPA Official for Kittitas County issued
a SEPA Detennination of Non-Significance on March 21, 2013 for the 2012 proposed use (CU-
12-00003); and,
WHEREAS, no timely appeals were filed with respect to the Determination of Non-Significance
(DNS) for the 2012 application (CU-12-00003) in 2013; and,
WHEREAS, the 2012 conditional use permit application (CU-12-00003) was withdrawn on
January 5, 2015; and,
WHEREAS, on December 3, 2013 the Kittitas Board of County Commissioners adopted
Ordinance 2013-012 which among other things altered the definition (KCC 17.08.490), use table
(17.15.050.1), permit process, and associated footnotes (17.15.050.2); with respect to small scale
event facilities in the Commercial Agriculture zone; and,
WHEREAS, the same applicant, applied for another conditional use permit (CU-16-00001)
under the terms of the revised small scale event facility as enacted by ordinance 2013-012; and,
WHEREAS, the applicant submitted the SEPA checklist (SE-13-00002) and DNS from the
2012 application (CU-12-00003) as part of the new application (CU-16-00001); and,
WHEREAS, the new application (CU-16-00001) was deemed complete on April 13, 2016
indicating among other things that reviewing procedures necessary to issuing a SEP A
environmental threshold determination per WAC 197-11 and RCW 43.21 C would occur; and,
WHEREAS, WAC 197-11-600(2) allows an agency to use previously prepared environmental
documents in order to evaluate proposed actions, altematives, or environmental documents; and,
WHEREAS, a notice of application was issued for the conditional use application (CU-16-
00001) to applicable agencies, mailed to surrounding property owners, and published in the
official newspaper of record as per KCC Chapter 15A.03.060.
WHEREAS, the notice of application for the conditional use permit (CU-16-00001) stipulated
that the applicant had submitted a prior application (CU-12-00003); that the use for the new
application (CU-16-00001) represents a diminished environmental impact; and that the county
intended to utilize the provisions of WAC 197-11-600 to adopt existing documents; and,
WHEREAS, a DNS was issued for the new application (CU-16-00001) on May 24, 2016 stating
that the lead agency would not act on the determination for 10 working days and that any action
to set aside, enjoin, review, or otherwise challenge the administrative SEPA action on the
grounds of non-compliance with the provisions of Chapter 43.21 of the Revised Code of
Washington (RCW) must commence on or before Wednesday June 8th 2016 at 5 p.m.; and,
WHEREAS, a timely appeal of the SEP A DNS was submitted and the appropriate fee paid to
Kittitas County Community Development Services (CDS) on June 8, 2016 by Ritch Brownlee;
and,
WHEREAS, the conditional use permit request was approved with conditions by the Director of
CDS and findings and approval documentation outlining the means and filing fee for an appeal
were distributed to parties of record and published in the official newspaper of record through a
notice of decision as outlined in KCC Chapter 15A.06.0 lOon October 10, 2016; and,
WHEREAS, a timely appeal of the conditional use permit decision (CU-16-00001) and
appropriate fee was paid to the Board of County Commissioners on October 25, 2016 by Ritch
Brownlee; and,
WHEREAS, RCW 43.21C.075(3)(d) provides that "procedural determinations made by the
responsible official shall be entitled to substantial weight."; and,
WHEREAS, A decision to issue an MDNS may be reviewed under the clearly enoneous
standard. See Anderson v. Pierce County, 86 Wash.App. 290,302,936 P.2d 432 (1997); and,
WHEREAS, a finding is clearly enoneous when, although there is evidence to support it, the
reviewing court on the record is left with the definite and firm conviction that a mistake has been
committed. rd. (citing Norway Hill Preservation & Protection Ass'n v. King County Council, 87
Wash.2d 267,274,552 P.2d 674 (1976)).; and,
WHEREAS, for the MDNS to survive judicial scrutiny, the record must demonstrate that
environmental factors were considered in a manner sufficient to amount to prima facie
compliance with the procedural requirements of SEP A and that the decision to issue an MDNS
was based on information sufficient to evaluate the proposal's environmental impact. rd. at 302,
936 P.2d 432 (citing Pease Hill Community Group v. County of Spokane, 62 Wash.App. 800,
810,816 P.2d 37 (1991)).; and,
WHEREAS, a motion was made by the applicant to dismiss the SEP A Appeal on the grounds
that:
1. The appellant failed to demonstrate that his endangered interest fell within the zone of
interest protected by SEP A; and,
2. The appellant failed to demonstrate that he has standing; that he must allege a specific
and perceptible injury or harm and that they are immediate concrete, and specific; and,
WHEREAS, a motion was made by the applicant to dismiss the conditional use permit appeal
on the grounds that:
1. The appellant, in filing his appeal, failed to comply with section 15A.07.0 1 0(2) of the
Kittitas County Code; and,
2. The appellant failed to demonstrate that he has standing; that he must allege a specific
and perceptible injury or hann; ana,
WHEREAS, Kittitas County Code 15A.07.01O(2) states:
Appeals shall contain a written, concise statement identifying:
a. The decision being appealed;
b. The name and address of the appellant and his interest(s) in the matter;
c. The specific reasons why the appellant believes the decision to be
wrong. The appellant shall bear the burden of proving the decision was
wrong;
d. The desired outcome or changes to the decision;
e. The appeals fee.
The appeal shall contain only the above listed material, and shall not contain or
attempt to introduce new evidence, testimony, or declaration; and,
WHEREAS, an open record public hearing was held by the Board of County Commissioners on
January 17, 2017 and February 7, 2017 to consider the SEP A appeal and the Conditional use
permit appeal concurrently as required by KCC 15.04.210(4); and,
WHEREAS, due notice of the hearing had been given as required by law; and,
WHEREAS, the appellant, the applicant and County staff were given the opportunity to provide
testimony, information, and documentation related to the appeals; and,
WHEREAS, the Kittitas County Board of Commissioners make the following FINDINGS OF FACT
and CONCLUSIONS OF LAW concerning said proposed conditional use:
1. Tena Design Group Inc authorized agent for Matt Webb, landowner, submitted a conditional use
application for a Small Scale Event Facility (8 events or less per year) on approximately 12 acres.
The subject property is zoned Commercial Agriculture. This small scale event facility is listed in
the Kittitas County land use zoning table (17.15.050 .1) as an administrative conditional use for
the Commercial Agriculture zone and as such requires approval of a permit as outlined in KCC
17.60A.
2. This proposal is located approximately 4.75 miles south of the City of Kittitas at 6280
Badger Pocket Road, in a portion of Section 36, TI7N, RI9E, WM in Kittitas County,
bearing Assessor's map numbers 17-19-36000-0016 and 17-19-36000-0025 .
3. The Kittitas County Comprehensive Plan's Land Use Element designates the subject
property as Commercial Agriculture and the zoning for this proposal is Commercial
Agriculture.
4. Kittitas County Code provides under Chapter17 .60A.0 15 provides review criteria for
conditional use permits which states that:
The Director or Board, upon receiving a properly filed application or petition, may permit
and authorize a conditional use when the following requirements have been met:
1) The proposed use is essential or desirable to the public convenience and not
detrimental or injurious to the public health, peace, or safety or to the character of
the surrounding neighborhood.
2) The proposed use at the proposed location will not be umeasonably detrimental to
the economic welfare of the county and that it will not create excessive public cost
for facilities and services by finding that
a) The proposed use will be adequately serviced by existing facilities such as
highways, roads, police and fire protection, irrigation and drainage structures,
refuse disposal, water and sewers, and schools; or
b) The applicant shall provide such facilities; or
c) The proposed use will be of sufficient economic benefit to offset additional
public costs or economic detriment.
3) The proposed use complies with relevant development standards and criteria for
approval set forth in this title or other applicable provisions of Kittitas County
Code.
4) The proposed use will mitigate material impacts of the development, whether
environmental or otherwise.
5) The proposed use will ensure compatibility with existing neighboring land uses.
6) The proposed use is consistent with the intent and character of the zoning district
in which it is located.
7) For conditional uses outside of Urban Growth Areas, the proposed use:
a) Is consistent with the intent, goals, policies, and objectives of the Kittitas
County Comprehensive Plan, including the policies of Chapter 8, Rural and
Resource Lands;
b) Preserves "rural character" as defined in the Growth Management Act (RCW
36.70A.030(15»;
c) Requires only rural government services; and
d) Does not compromise the long term viability of designated resource lands.
5. An Administrative conditional use permit application was submitted to Kittitas County
Community Development Services (CDS) on March 16,2016. The application was
deemed complete on April 13, 2016. A Notice of Application and a Notice ofSEPA
were mailed to all state and local agencies/depattments with potential interest in the
project and required by SEPA, as well as to adjacent landowners located within five
hundred (500) feet of any portion of the boundary of the proposal's tax parcel on April,
29,2016. Notice was published in the Daily Record, the official newspaper of record for
Kittitas County, on May 2, 2016.
6. The applicant applied for a similar use to Kittitas County Community Development
Services (CDS) in 2012 at which time SEPA review was performed and a Determination
of Non-Significance (DNS) was issued (dated October 6, 2014) and no appeals were
filed. WAC 197-11-600 provisions for the adoption of existing environmental
documents; Kittitas County finds that the use applied for in this instance represents a
diminished environmental impact from the one originally applied for in 2012 and
therefore it utilized the provisions allowed for in the citation above to adopt the existing
SEPA checklist. A DNS was issued for this application on May 24,2016.
7. A timely appeal was filed on June 8, 2016 by Ritch Brownlee.
8. A Decision, Findings of Fact and Conclusions of law were issued on October 10, 2016 .
The decision was publicized and given a 10 working day appeal period (KCC
15A.07.01O(l)).
9. A timely appeal was filed by Ritch Brownlee on October 25, 2016. Under the
provisions ofKCC 15.04.210(4)a single simultaneous appeal is mandated.
10. An open record public hearing was held by the Board of County Commissioners on
January 17, 2017 and February 7, 2017 to consider the SEPA appeal and the
Conditional use permit appeal concurrently as required by KCC 15.04.210(4).
11. A motion was made by the applicant to dismiss the SEP A Appeal on the grounds that
Mr. Brownlee failed to demonstrate that his endangered interest fell within the zone of
interest protected by SEPA; and that Mr. Brownlee failed to demonstrate that he has
standing; that he must allege a specific and perceptible injury or harm.
12. A motion was made by the applicant to dismiss the conditional use pennit appeal on the
grounds that Mr. Brownlee, in filing his appeal, failed to comply with section
15A.07.01O(2) of the Kittitas County Code; and that Mr. Brownlee failed to
demonstrate that he has standing; that he must allege a specific and perceptible injury
or harm.
NOW THEREFORE, BE IT HEREBY RESOLVED that the Kittitas County Board of
Commissioners hereby deny the motion to dismiss the SEPA appeal (2-1 vote), deny the
SEPA appeal (3-0 vote), and grant the motion to dismiss the appeal of the conditional use
permit (2-1 vote), and adopt the above Findings of Fact, and Conclusions of Law below.
1. Noise, transportation, utilities, public safety, storm water, and light and glare, were
all included as elements of concern in Mr. Brownlee's SEP A appeal letter and all
fall within the zone of interest protected by SEP A.
2. The appellant's potential lack of sleep, the potential diminished quiet enjoyment of
his property, the potential negative traffic impacts, the proximity of Mr.
Brownlee's home to the proposed use, and past experiences with the activity as
proposed represent alleged demonstrable specific and perceptible injury or harm.
3. The appellant did not provide the required material and information in his
conditional use appeal documentation. The appellant did not provide a statement
identifying why he felt the decision to be wrong, nor did he provide a statement
identifying desired outcome or changes to the decision.
4. Determinations made by the responsible SEPA official are accorded substantial
weight.
5. The appellant failed to provide substantive information for the Board of County
Commissioners on the record which left it with the definite and finn conviction
that a mistake had been committed.
6. The decision to issue an MDNS was based on information sufficient to evaluate
the proposal's environmental impact.
. A 0 Uti -,-t'h _ day of 011 JiLAt.d!/h , 2017 at Ellensburg, Washington.
BOARD OF COUNTY COMMISSIONERS
K l TV, WASHINGTON
V "'bq,."'~r:"V ice Chairma~ LJ?Oj§
APPROVED AS TO FORM:
Greg Zempel WSBA #19125