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HomeMy WebLinkAbout2747 BEFORE THE CITY COUNCIL OF THE CITY OF BRENIERTON In re ) UNITED STATES NAVY, ) Shoreline CUP 99-0086 ) ) Resolution 2747 Applicant. ) ) The Bremerton City Council, having heard this matter in open session and being otherwise fully advised, finds, concludes, and resolves as follows: FINDINGS OF FACT 1. This is a closed record appeal of a Shoreline Conditional Use Permit ("CUP") issued by the Planning Commission on 7 January 2000. 2. The project area has been industrial or heavily impacted by industrial activity for over a century. 3. The Commission held a public hearing with proper notice on 4 January 2000. At this hearing the Commission accepted into the record and reviewed the application, the Final EIS, the staff analysis and recommendation, and evidence t?om the applicants and citizens, including testimony. That record, along with the ultimate decision and the minutes of the hearing, have been certified to the Council as the record. No objections have been made to that record. 4. The Suquamish Tribe appealed the Planning Commission's decision. The appeal takes issue with notices given and with the environmental irnpact of dredging. 5. Of the dredged material, approximately 7% will not be CERCLA regulated. All material disposed of in the confined aquatic disposal system ("CAD"), if used, will be CERCLA regulated. All non-CERCLA material will be disposed of outside the City's jurisdiction. 6. The Council heard this matter in open session on 15 March 2000. Neither party appeared, choosing to rest on the briefs they had submitted. 7. Any Conclusion of Law deemed a Finding of Fact is adopted as such. CONCLUSIONS OF LAW 1. The Council reviews the Platruing Commission's decision to determine if it is supported by substantial evidence on the record. 2. The Tribe alleges several errors in providing notice of the Navy's application. For the following reasons, none of these errors, to the extent they exist, is a basis for reversal: PAGE 1 of 4 a. Contrary to the Tribe's allegations. all other permitting agencies were notified of the application to tile City Each permitting agency, including the City, received a complete packet or' all permit applications. All permitting agencies had notice. b. Also contrary to tile Tribe's allegations. the record indicates the City gave notice to its usual list of other entities, including the Tribe. It is untbrtunate if the Tribe did not receive that notice, but there is nothing in the record controverting the evidence that the City sent the notice, which is all the Shoreline Master Program ("SMP") calls tbr. Additionall3', such notice is a guideline of the SMP, not a requirement. c. The Tribe appeared at the Planning Commission hearing and made a presentation. At no point did the Tribe object to the notice it received. The Tribe failed to preserve the issue tbr appeal. d. The Tribe appeared at the Planning Commission and had an opportunity to be heard. The Tribe has otthred nothing to show how the lack of notice precluded its presenting its case. The Tribe has shown no prejudice. 3. The Tribe next alleges that tile dredging operations allowed by the CUP will have certain environmental impacts and so tile CUP violates several SNIP goals. For the following reasons, none of these allegations is a basis for reversal: a. Most of the dredged material is CERCLA regulated. The parties are in agreement that removal of contaminated sediments would have a positive impact on the environment. The sediments can not be removed without dredging. b. The Final EIS, especially Volume One, Section 4 17, states the net effect of the project will be a decrease in traffic, which will have a positive impact on transportation, recreation, and habitat. Nothing in the record controverts this. c. The Final E12S, especially Volume One, Section 4.5, states that there must be a Biological Opinion of"No Jeopardy" to endangered species for the project to proceed. Presumably, nonendangered species would similarly be facing no or trivial impact. Nothing in the record controverts this. d. The Final EIS, especially Volume One, Section 4.13, states there are no archeological sites in the project area. The Tribe offered nothing to the contrary during either environmental reviex,, or tile Planning Commission hearing. The Tribe has t~tiled to preserve this issue and can point to nothing in the record supporting its position. e. The SNIP governs development. It does not govern the operation of ships, including mooring them, unless there is construction of moorage facilities that qualifies as development. Nothing in the record indicates the dredging operation will include any such moorage development. PAGE 2 of 4 4. The Tribe next alleges that the CUP violates standards applicable to Shorelines of Statewide Significance. For tile tbllowing reasons, none of these allegations is a basis for reversal: a. The City provided for statewide interests Contrary to tile Tribe's allegation, the record shows the City notified other agencies but received no comments from them to consider. Further, the City is entitled to expect other agencies to issue perrnits and entbrce regulations, within their jurisdiction and expertise. The City is not obligated to regulate those matters tbr those agencies. Finally, the staff report to the Planning Commission details how the project conforms to SMP goals. The Tribe's argument points to no facts in the record showing the report to be wrong. b. The Final EIS, especially Voh.tme One, Section 4.5, shows that the ecology and natural character of the area, to the extent any natural character still exists, will be protected. Additionally, the CUP expressly obligates the Navy to continue negotiating in good faith with the Tribe concerning the Tribe's environmental mitigation proposals. c. The CAD is entirely tbr CERCLA regulated waste disposal. The City has no jurisdiction over CERCLA activities. d. The project area is a restricted area. Tilere is no public access to protect. Additionally, tile Tribe makes no public access argument but rather argues treaty access. Treaty access, as with private access by easement or license, is enforced by mechanisms other than the SMP and lies outside the SMP's public access protection goal. 5. The Tribe next alleges that the CUP violates CUP requirements. For the following reasons, none of tlnese allegations is a basis tbr reversal: a. As noted previously, the CAD is entirely fbr CERCLA regulated waste disposal. The City has no jurisdiction over CERCLA activities. b. As also noted previously, the project area is a restricted area. There is no public access to protect. Additionally, tile Tribe again makes no public access argument but rather argues treaty access. c. The Final EIS, especially Volume One, Section 4.5, states that there must be a Biological Opinion of "No Jeopardy" to endangered species for the project to proceed. Further, the staff report to the Planning Commission details how the project meets the CUP requirements. The Tribe's argument points to no facts in the record showing the report to be wrong. 6. The CUP is supported by substantial evidence in the record. PAGE 3 of 4 THEREFORE BE IT RESOLVED: CUP 99-0086 is affirmed. Dated this 29th day of March, 2000. BREMERTON CITY COUNCIL Carol Arends, Chair PAGE 4 of 4