030-23 - Ordinance - Development Agreement with JL Group, LLCDocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
ORDINANCE NO. 030-23
AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON,
AUTHORIZING THE MAYOR TO EXECUTE A DEVELOPMENT AGREEMENT WITH
JL GROUP, LLC FOR THE DEVELOPMENT OF A MEDICAL OFFICE, INCLUDING
PROTECTING A SIGNIFICANT TREE, DEDICATION OF RIGHT OF WAY, AND RELIEF
FROM DESIGN STANDARDS; PROVIDING FOR SEVERABILITY AND
CORRECTIONS; AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, pursuant to RCW 36.7013.170, the City Council has the authority to review and
enter into development agreements that govern the development and use of real property within
the City; and
WHEREAS, the City Council has adopted standards and procedures governing the City's
use of development agreements, codified at Chapter 20.26 of the Port Orchard Municipal Code
(POMQ and
WHEREAS, Chapter 20.26 POMC is consistent with State law; and
WHEREAS, and JL Group, LLC, a Washington limited liability company organized under the
law of the State of Washington ("Developer"), applied for a Development Agreement under
Chapter 20.26 POMC on October 3, 2023, and such Agreement has been processed consistently
with the POMC and State law; and
WHEREAS, the Development Agreement by and between the City of Port Orchard and JL
Group, LLC relates primarily to the development of property owned by the Developer, which is
located at: 791 Mitchell Avenue (Kitsap County Tax Parcels 252401-3-007-2005 and 252401-3-
008-2004); and
WHEREAS, the Developer proposes to develop the Property with an orthodontist office
in a new building measuring 4,950 square feet with required off-street parking, landscaping, and
associated site improvements; and
WHEREAS, the Property contains a very large approximately 100-year-old redwood tree
at the south-west corner of the Property with the tree measuring about 96 inches in diameter;
and
WHEREAS, the tree is significant to the community, is an important landmark in the area,
and should be saved for the enjoyment of future generations; and
WHEREAS, the official zoning map of the City, adopted by Ordinance 012-23, shows the
zoning designation for Kitsap County Tax Parcel 252401-3-007-2005 to be Commercial Mixed Use
(CMU); and
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Ordinance No. 030-23
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WHEREAS, in Port Orchard Municipal Code Chapter 20.39 for the CMU zone, the
proposed use, an orthodontist office ("All Medical, Except as listed below"), requires a
conditional use permit; and
WHEREAS, consistent with POMC 20.39, the Developer filed an application for a
Conditional Use Permit on May, 11, 2023 to develop a building on the Property to contain an
Orthodontist Office; and
WHEREAS, the application of the City's development regulations requires maximum
building setback in accordance with POMC 20.35.030 Commercial Mixed -Use Zone, requires
compliance with a minimum build -to zone along the primary street (Mitchell Ave) in POMC
20.35.030 and 20.40.030, and requires a landscape setback in accordance with the block frontage
standards in POMC 20.127.130; and
WHEREAS, taken together, the requirements of POMC 20.35.030, 20.40.030, and
20.127.130 results in a site design that encroaches on the drip line and root protection area of
the significant redwood tree located at the SW corner of the property and which necessitate
removal of the significant redwood tree; and
WHEREAS, upon issuance of a notice of application for a conditional use permit for the
development of the Property, there were more than 20 public comments and a signed petition
containing 248 signatures submitted to the City calling for the protection of the large redwood
tree located on the site and these comments and petitions are attached to the Development
Agreement as Exhibit C; and
WHEREAS, the benefits of retaining significant trees, as echoed in the comments and
petition attached as Exhibit C to the Development Agreement, include:
Aesthetic benefits in the beauty and majesty of this significant tree;
Cleaner air and water;
Maintaining significant tree canopy;
Climate Impacts;
Benefits for animals by providing habitat;
Shade and reducing "heat island" in areas where there is significant development; and
WHEREAS, Port Orchard Municipal Code chapter 20.129 Significant Trees provides a
framework that encourages the protection of significant trees; and
WHEREAS, the City's development regulations do not provide flexibility in design
standards as a mechanism to protect significant trees; and
WHEREAS, the Developer approached the City seeking to find design solutions that would
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Ordinance No. 030-23
Page 3 of 6
result in the protection of the significant redwood tree on the Property, is willing to dedicate
property to relocate an existing road to avoid further impacts to the tree as part of improvements
to the road, and has offered to redesign their proposed site plan to protect and avoid the tree
and has agreed to place a conservation easement on its property for future protection of the
tree; and
WHEREAS, through the redesign effort, it was determined that departures from the City's
design standards were required if the Development Project was to avoid encroaching on the drip
line and root protection area for the significant tree; and
WHEREAS, POMC 20.26.020, allows a development agreement to impose different
standards from those found in POMC 20.35, 20.39, 20.40, and 20.127 to encourage innovative
land use management and to provide flexibility provided that the development standard is
consistent with the comprehensive plan; and
WHEREAS, the Developer has prepared a superior site plan for their Development Project
that results in the protection of the significant redwood tree, but requires departures from POMC
20.35, 20.39, 20.40, and 20.127 in order to achieve the redesign; and
WHEREAS, the City's Comprehensive Plan, in the Elements, Goals, and Policies call for
both the inclusion of trees and landscaping in commercial areas and for high quality pedestrian -
oriented design; and
WHEREAS, the City Council finds that the alternative site plan proposed by the Developer
is innovative, is equal or better than the outcome that would result if the City's development
standards had been strictly followed, and is consistent with the City's Comprehensive Plan; and
WHEREAS, the City Council finds that the alternative site plan provides public benefits
including the protection of a significant redwood tree and the dedication and reconstruction of
a public road in a way that avoids impacting the significant redwood tree; and
WHEREAS, except with regard to the departures from POMC 20.35, 20.39, 20.40, and
20.127 as described herein, this Agreement does not establish or modify the standards or
conditions for the underlying Development Project which is being undertaken in accordance with
applicable code and regulations; and
WHEREAS, in accordance with POMC 20.26.010 and RCW 36.7013.170, the City Council
has the authority to determine the permitted use of the Property by use of a development
agreement, therefore, approval of this Agreement abrogates the Developer's need for a
Conditional Use Permit; and
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Ordinance No. 030-23
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WHEREAS, on August 14, 2020, under RCW 43.21C.440, the City issued a SEPA
Determination of Significance (DS) for the Downtown Port Orchard Subarea Plan and updated
regulations as a Planned Action. On April 26, 2021, the City issued a Final Environmental Impact
Statement (FEIS) for the Subarea Plan and updated regulations. This FEIS adequately addresses
the significant impacts of the updated Subarea Plan and regulations as well as implementation
of development projects within the subarea. On June 25, 2021, the City adopted Ordinance No.
031-21 establishing a planned action designation for the Downtown Port Orchard Subarea Plan
and updated regulations as a Planned Action. Consistent with RCW 43.21C.440(1)(b)(i), the
Planned Action is in conjunction with a subarea plan adopted under Chapter 36.70A RCW and
has had its significant impacts adequately addressed by an EIS under the requirements of SEPA,
Chapter 43.21C RCW; and
WHEREAS, the City reviewed an environmental checklist submitted with the development
agreement application. The development agreement application and subsequent related permits
are determined to qualify under Planned Action under Ordinance 031-21 and shall proceed in
accordance with the applicable permit review procedures specified in POMC Chapter 20.22,
except that no SEPA threshold determination, EIS or additional SEPA review shall be required;
and
WHEREAS, in consideration of the benefits conferred by this new Agreement, which
reflect the current plans of both the City and the Developer, the Parties deem it in their best
interests to enter into this Agreement; and
WHEREAS, the City Council held a public hearing on October 24, 2023 regarding this
Agreement and comments received and
WHEREAS, the City Council, after careful consideration of the Development Agreement
and all public comments and testimony, finds that the Development Agreement is consistent with
the City's Comprehensive Plan and development regulations, the Growth Management Act,
Chapter 36.70A RCW, and that the Agreement in the best interests of the residents of the City;
now, therefore,
WHEREAS, after a public hearing, by Ordinance No. 030-23, the City Council authorized
the Mayor to sign this Agreement with JL Group, LLC;
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS
SECTION 1. Findings. The City Council adopts all of the "Whereas" sections of this
ordinance and all "Whereas" sections of the Development Agreement as findings in support of
this ordinance.
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Ordinance No. 030-23
Page 5 of 6
SECTION 2. Authorization. The City Council approves of and authorizes the Mayor to
execute a Development Agreement with JL Group, LLC substantially as provided in "Exhibit A" of
this Ordinance.
SECTION 3. Severability. If any section, sentence, clause, or phrase of this Ordinance
should be held to be invalid or unconstitutional by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity of constitutionality of any other
section, sentence, clause, or phrase of this Ordinance.
SECTION 4. Corrections. Upon the approval of the city attorney, the city clerk and/or
code publisher is authorized to make any necessary technical corrections to this Ordinance
including but not limited to the correction of scrivener's/clerical errors, references, Ordinance
numbering, section/subsection numbers, and any reference thereto.
SECTION S. Effective Date. This Ordinance shall be published in the official newspaper
of the city and shall take full force and effect five (5) days after posting and publication as required
by law. A summary of this Ordinance may be published in lieu of publishing the entire Ordinance,
as authorized by state law.
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Ordinance No. 030-23
Page 6 of 6
PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and
attested by the City Clerk in authentication of such passage this 24t" day of October 2023.
ATTEST:
EDocuSigned by:
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Brandy Wallace, MMC, City Clerk
APPROVED AS TO FORM:
Charlotte A. Archer, City Attorney
PUBLISHED: October 27, 2023
EFFECTIVE DATE: November 1, 2023
DocuSigned by:
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Robert Putaansuu, Mayor
SPONSOR:
DocuSigned by:
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John Clauson, Councilmember
EXHIBIT A: DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF PORT ORCHARD
ANDJLGROUP
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF PORT ORCHARD AND JL GROUP, LLC FOR
THE DEVELOPMENT OF A MEDICAL OFFICE, PROTECTION OF A SIGNIFICANT
TREE, DEDICATION OF RIGHT OF WAY; AND RELIEF FROM DESIGN
STANDARDS
C088-23
THIS DEVELOPMENT AGREEMENT is made and entered into this 24th day of
October, 2023, by and between the City of Port Orchard, a non -charter, optional code Washington
municipal corporation, hereinafter the "City," and JL Group, LLC, a Washington limited liability
company, hereinafter the "Developer" (individually, a "Party" and collectively, the "Parties").
The Parties hereby agree as follows:
RECITALS
WHEREAS, the Washington State Legislature has authorized the execution of a
development agreement between a local government and a person having ownership or control of
real property within its jurisdiction (RCW 36.70B.170(1)); and
WHEREAS, a development agreement must set forth the development standards and other
provisions that shall apply to, govern, and vest the development, use and mitigation of the
development of the real property for the duration specified in the agreement (RCW
36.70B.170(1)); and
WHEREAS, a development agreement must be consistent with the applicable
development regulations adopted by a local government planning under chapter 36.70A RCW
(RCW 36.70B.170(1)); and
WHEREAS, Port Orchard adopted Chapter 20.26 of the Port Orchard Municipal Code
("POMC" or "Code") which establishes the standards and procedures for Development
Agreements in Port Orchard; and
WHEREAS, Chapter 20.26 POMC is consistent with State law; and
WHEREAS, the Developer has applied for a Development Agreement under Chapter
20.26 POMC on October 3, 2023 and such Agreement has been processed consistently with the
POMC and State law; and
WHEREAS, this Development Agreement by and between the City of Port Orchard and
the Developer (hereinafter the "Development Agreement" or "Agreement"), relates primarily to
the development of property owned by Developer at 791 Mitchell Avenue, Port Orchard,
Washington (Kitsap County Tax Parcels 252401-3-007-2005 and 252401-3-008-2004 (hereinafter,
the "Property")); and
WHEREAS, the Developer proposes to develop the Property with an orthodontist office
in a new building measuring 4,950 square feet with required off-street parking, landscaping, and
associated site improvements (collectively, the "Development Project" or City Permit Nos. No.
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PW23-033, PW23-034, and PW23-035; and
WHEREAS, the Property contains a very large approximately 100-year-old redwood tree
at the south-west corner of the Property with the tree measuring about 96 inches in diameter; and
WHEREAS, the official zoning map of the City, adopted by Ordinance 012-23, shows the
zoning designation for Kitsap County Tax Parcel 252401-3-007-2005 to be Commercial Mixed
Use (CMU); and
WHEREAS, in Port Orchard Municipal Code Chapter 20.39 for the CMU zone, the
proposed use, an orthodontist office ("All Medical, Except as listed below"), requires a conditional
use permit; and
WHEREAS, Consistent with POMC 20.39, the Developer filed an application for a
Conditional Use Permit on May, 11, 2023 to develop a building on the Property to contain an
Orthodontist Office; and
WHEREAS, the application of the City's development regulations requires maximum
building setback in accordance with POMC 20.35.030 Commercial Mixed -Use Zone, requires
compliance with a minimum build -to zone along the primary street (Mitchell Ave) in POMC
20.35.030 and 20.40.030, and requires a landscape setback in accordance with the block frontage
standards in POMC 20.127.130; and
WHEREAS, taken together, the requirements of POMC 20.35.030, 20.40.030, and 20.40
results in a site design that encroaches on the drip line and root protection area of the significant
redwood tree located at the SW corner of the property and which necessitate removal of the
significant redwood tree; and
WHEREAS, upon issuance of a notice of application for a conditional use permit for the
development of the Property, there were more than 20 public comments and a signed petition
containing 248 signatures submitted to the City calling for the protection of the large redwood tree
located on the site and these comments and petitions are attached to this Agreement as Exhibit C;
and
WHEREAS, the benefits of retaining significant trees, as echoed in the comments and
petition attached as Exhibit C, include:
Aesthetic benefits in the beauty and majesty of this significant tree;
Cleaner air and water;
Maintaining significant tree canopy;
Climate Impacts;
Benefits for animals by providing habitat;
Shade and reducing "heat island" in areas where there is significant development;
and
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WHEREAS, Port Orchard Municipal Code chapter 20.129 Significant Trees provides a
framework that encourages the protection of significant trees; and
WHEREAS, the City's development regulations do not provide flexibility in design
standards as a mechanism to protect significant trees; and
WHEREAS, the Developer approached the City seeking to find design solutions that
would result in the protection of the significant redwood tree on the Property, is willing to dedicate
property to relocate an existing road to avoid further impacts to the tree as part of improvements
to the road, and has offered to redesign their proposed site plan to protect and avoid the tree; and
WHEREAS, through the redesign effort, it was determined that departures from the City's
design standards were required if the Development Project was to avoid encroaching on the drip
line and root protection area for the significant tree; and
WHEREAS, POMC 20.26.020, allows a development agreement to impose different
standards from those found in POMC 20.35, 20.39, 20.40, and 20.127 to encourage innovative
land use management and to provide flexibility provided that the development standard is
consistent with the comprehensive plan; and
WHEREAS, the Developer has prepared a superior site plan for their Development Project
that results in the protection of the significant redwood tree, but requires departures from POMC
20.35, 20.39, 20.40, and 20.127; and
WHEREAS, the City's comprehensive plan, in the Elements, Goals, and Policies below
calls for both the inclusion of trees and landscaping in commercial areas and for high quality
pedestrian oriented design, objectives that are in conflict on this site:
Land Use Element:
Policy LU-3 Update and establish building and site design standards that support
an attractive and functional built environment in all areas of the City.
Policy LU-25 Incorporate the following principles in planning for commercial
areas:
Create lively and attractive places at a human scale.
Promote a street pattern that provides through connections, pedestrian and
vehicular access.
Establish urban and architectural design standards that support an attractive
and functional pedestrian environment, such as block size limits and
requiring street facing windows and doors.
Encourage pedestrian travel to and within commercial areas by providing:
Safe and attractive walkways.
Parking lot design that provides safe walking routes and pedestrian
connections between adjacent properties.
Off-street surface parking to the backs or sides of buildings to maximize
pedestrian access from the sidewalk(s).
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Parks Element:
Goal 3: To provide open space or natural landscaping throughout the City limits.
PK-13 Zoning ordinances shall identify and preserve open space areas. Policy
PK-14 Landscaping, such as trees and shrubbery, should be included in the
commercial areas of the City.
PK-33 Buffers and open space should be a required design element in new
developments.
WHEREAS, the City Council finds that the alternative site plan proposed by the
Developer is innovative, equal or better than the outcome that would result if the City's
development standards had been strictly followed, and is consistent with the City's Comprehensive
Plan; and
WHEREAS, the City Council finds that the alternative site plan provides public benefits
including the protection of a significant redwood tree and the dedication and reconstruction of a
public road in a way that avoids impacting the significant redwood tree; and
WHEREAS, except with regard to the departures from POMC 20.35, 20.39, 20.40, and
20.127 as described herein, this Agreement does not establish or modify the standards or
conditions for the underlying Development Project which is being undertaken in accordance with
applicable code and regulations; and
WHEREAS, in accordance with POMC 20.26.010 and RCW 36.70B.170, the City
Council has the authority to determine the permitted use of the Property by use of a development
agreement, therefore, approval of this Agreement abrogates the Developer's need for a Conditional
Use Permit; and
WHEREAS, on August 14, 2020, under RCW 43.21 C.440, the City issued a SEPA
Determination of Significance (DS) for the Downtown Port Orchard Subarea Plan and updated
regulations as a Planned Action. On April 26, 2021, the City issued a Final Environmental Impact
Statement (FEIS) for the Subarea Plan and updated regulations. This FEIS adequately addresses
the significant impacts of the updated Subarea Plan and regulations as well as implementation of
development projects within the subarea. On June 25, 2021, the City adopted Ordinance No. 031-
21 establishing a planned action designation for the Downtown Port Orchard Subarea Plan and
updated regulations as a Planned Action. Consistent with RCW 43.21C.440(1)(b)(i), the Planned
Action is in conjunction with a subarea plan adopted under Chapter 36.70A RCW and has had its
significant impacts adequately addressed by an EIS under the requirements of SEPA, Chapter
43.21C RCW; and
WHEREAS, the City reviewed an environmental checklist submitted with the
development agreement application. The development agreement application and subsequent
related permits are determined to qualify under Planned Action under Ordinance 031-21 and shall
proceed in accordance with the applicable permit review procedures specified in POMC Chapter
20.22, except that no SEPA threshold determination, EIS or additional SEPA review shall be
required; and
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WHEREAS, in consideration of the benefits conferred by this new Agreement, which
reflect the current plans of both the City and the Developer, the Parties deem it in their best interests
to enter into this Agreement; and
WHEREAS, the City Council held a public hearing on October 24, 2023 regarding this
Agreement; and
WHEREAS, after a public hearing, by Ordinance No. 030-23, the City Council authorized
the Mayor to sign this Agreement with the Developer.
AGREEMENT
Section 1. The Property. The Property comprises 791 Mitchel Avenue, Port Orchard,
Washington (Kitsap County Tax Parcel Nos. 252401-3-007-2005 and 252401-3-008-2004). The
Property is described on Exhibit A which is attached hereto and incorporated herein by this
reference as if set forth in full. A map of the Property is shown Exhibit B on which is attached
hereto and incorporated herein by this reference as if set forth in full.
Section 2. Definitions. As used in this Agreement, the following terms, phrases, and words
shall have the meanings and be interpreted as set forth in this Section.
a) "Adopting Ordinance" means the Ordinance which approves this Agreement, as
required by RCW 36.70B.200 and Chapter 20.26 POMC.
b) "Council" or "City Council" means the duly elected legislative body governing the
City of Port Orchard.
c) "Development Project" means the development of the Property with a building
measuring approximately 4950 square feet designed to house an orthodontic office, parking,
landscaping, and associated site improvements, as shown in Exhibit B and associated with permit
applications PW23-033, PW23-034, and PW23-035.
d) "Director" means the City's Community Development Director.
e) "Effective Date" means the effective date of the Adopting Ordinance.
Section 3. Exhibits. Exhibits to this Agreement are as follows:
a) Exhibit A — Legal Description of the Property.
b) Exhibit B — Map of the Property and the Development Project and with permits
listed in Section 2 identified.
c) Exhibit C — Public comments and petition received in support of protecting the
significant tree on the Property.
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d) Exhibit D — Conservation easement for execution and recording following
approval and execution of this Agreement.
Section4. Parties to Development Agreement. The Parties to this Agreement are:
a) The "City" is the City of Port Orchard, whose office is located at 216 Prospect Street,
Port Orchard, WA 98366.
b) The "Developer" is a private enterprise which owns the Property in fee, and whose
principal office is located at 2893 Erlands Beach Loop NW, Bremerton, WA 98312.
Section 5. Term of Agreement. This Agreement shall commence upon the Effective Date
and shall continue in force for a period of five (5) years unless extended or terminated as provided
herein. Following the expiration of the term or extension thereof, or if sooner terminated, this
Agreement shall have no force and effect except for such sections which are specifically intended
to survive expiration or termination.
Section 6. Significant Tree Protection. As consideration to the City, the Developer
agrees to protect and maintain the large redwood tree located at the southwest corner of the
Development Project site during project construction and after project completion. Such tree shall
be protected in perpetuity by the execution and recording of a conservation easement. A copy of
the conservation easement is attached hereto as Exhibit D and incorporated herein by this
reference as if set forth in full. Prior to construction, the tree and its root protection area as
determined by an arborist shall be protected with construction fencing to ensure that the tree is not
damaged during construction. The location of the significant large redwood tree is shown on
Exhibit B.
Section 7. Development Agreement Modifications.
a) The Development Project is not subject the maximum setbacks as shown in POMC
20.35.030 (5). This deviation is intended to allow the building to be set back further from the
Mitchell Avenue right of way to allow for protection of the significant tree.
b) To protect and preserve the significant tree located on the project site, the build -to -
zone standard identified in POMC 20.35.030(6) and implemented through POMC 20.40.030 shall
not apply to the Development Project.
c) Port Orchard Municipal Code Chapter 20.39 shall treat the proposed use, "All
Medical, except as follows" as Permitted outright "P" rather than as permitted conditionally "C"
and requiring a conditional use permit.
Section 8. ROW Dedication and Reconstruction of SE Taylor Street. As a further public
benefit to the City and as shown conceptually on Exhibit B, the Developer agrees to reconstruct
SE Taylor Street to include a sidewalk, landscape strip, curb, and gutter along the north side of the
road and at least 20 feet of pavement to provide adequate fire access to properties served by SE
Taylor Street. The Developer also agrees to dedicate additional right of way as needed to ensure
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that the travel lanes are completely within a public right of way. Such dedication shall be without
cost to the City and the Developer shall pay any excise tax due.
Section 9. Default.
a) Subject to extensions of time by mutual consent in writing, failure, or delay by either
Party to perform any term or provision of this Agreement shall constitute a default. In the event of
alleged default or breach of any terms or conditions of this Agreement, the Party alleging such
default or breach shall give the other Party not less than thirty (30) days' notice in writing,
specifying the nature of the alleged default and the manner in which said default may be cured.
During this thirty (30) day period, the Party charged shall not be considered in default for purposes
of termination or institution of legal proceedings.
b) After notice and expiration of the thirty (30) day period, if such default has not been
cured or is not being diligently cured in the manner set forth in the notice, the other Party to this
Agreement may, at its option, institute legal proceedings pursuant to this Agreement. In addition,
the City may decide to file an action to enforce the City's Codes, and to obtain penalties and costs
as provided in the POMC for violations of this Agreement and the Code.
Section 10. Termination. This Agreement shall terminate five (5) years after Effective Date.
Upon termination and upon the request of the Developer, the City shall record a notice of such
termination in a form satisfactory to the Parties that the Agreement has been terminated. Provided,
however, that the approval of the use of the Property for the medical office shall survive allowing
the use to continue unless abandoned by the Developer or successor.
Section 11. Extension and Modification. Any request for extension or modification, if
allowed under the City's code, shall be subject to the provisions contained in POMC Chapter 20.26
POMC.
Section 12. Effect upon Termination on Developer. Termination of this Agreement as to
the Developer shall not affect any of the Developer's respective obligations to comply with the
City Comprehensive Plan and the terms and conditions or any applicable zoning code(s) or other
land use entitlements approved with respect to the Property.
Section 13. Refund of CUP Application Fee. The need for a Conditional Use Permit was
abrogated by this Agreement. Therefore the Developer is entitled to a full refund of the application
fees paid for the Conditional Use Permit or may have those fees transferred and applied towards
the costs of this Agreement or other permit applications.
Section 14. Assignment and Assumption. The Developer shall have the right to sell, assign
or transfer this Agreement with all rights, title, and interests therein to any person, firm, or
corporation at any time during the term of this Agreement with a sale of the underlying property.
Developer shall provide the City with written notice of any intent to sell, assign, or transfer all or
a portion of the Property, at least 30 calendar days in advance of such action; provided; however,
failure to strictly comply with the 30-calendar day notice provision shall not be considered a breach
of this Agreement.
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Section 15. Binding on Successors; Covenants Running with the Land. The conditions and
covenants set forth in this Agreement and incorporated herein by the Exhibits shall run with the
land and the benefits and burdens shall bind and inure to the benefit of the Parties. The Developer
and every purchaser, assignee or transferee of an interest in the Property, or any portion thereof,
shall be obligated and bound by the terms and conditions of this Agreement, and shall be the
beneficiary thereof and a Party thereto, but only with respect to the Property, or such portion
thereof, sold, assigned or transferred to it. Any such purchaser, assignee or transferee shall observe
and fully perform all of the duties and obligations of the Developer contained in this Agreement,
as such duties and obligations pertain to the portion of the Property sold, assigned, or transferred
to it.
Section 16. Amendment to Agreement; Effect of Agreement on Future Actions. No
waiver, alteration, or modification to any of the provisions of this Agreement shall be binding
unless in writing, signed by the duly authorized representatives of the Parties, be consistent with
Chapter 20.26 POMC, and, where considered substantive as determined by the Director, follow
the same procedures set forth in Chapter 20.26 POMC. Nothing in this Agreement shall prevent
the City Council from making any amendment to its Comprehensive Plan, Zoning Code, Official
Zoning Map or development regulations after the Effective Date of this Agreement.
Section 17. General release. Developer may free itself from further obligations relating to the
sold, assigned, or transferred property, provided that the buyer, assignee, or transferee expressly
assumes the obligations under this Agreement as provided herein.
Section 18. Notices. Notices, demands, correspondence to the City and/or Developer (as
applicable) shall be sufficiently given if dispatched by pre -paid first-class mail to the addresses of
the Parties as designated in "Written Notice" Section 33 below. Notice to the City shall be to the
attention of both the City Clerk and the City Attorney. Notices to successors -in -interest of the
Developer shall be required to be given by the City only for those successors -in -interest who have
given the City written notice of their address for such notice. The parties hereto may, from time to
time, advise the other of new addresses for such notices, demands or correspondence.
Section 19. Reimbursement for Agreement Expenses of the City. Developer agrees to
reimburse the City for actual expenses incurred over and above fees paid by Developer as an
applicant incurred by City directly relating to this Agreement, including recording fees, publishing
fees, attorneys' fees, and reasonable staff and consultant costs not otherwise included within
application fees; provided however, the City shall provide written notice to Developer if the
expenses to the City are anticipated to exceed Twenty -Five Thousand Dollars and No Cents
($25,000.00) and the Parties shall meet and confer regarding the City's anticipated costs. Upon
payment of all expenses, the Developer may request written acknowledgement of all fees. Such
payment of all fees shall be remitted to the City, at the latest, within thirty (30) days from the City's
presentation of a written statement of charges to the Developer.
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
Section 20. Applicable Law, Resolution of Disputes, and Attorneys' Fees. It is the Parties'
intent to work cooperatively and to resolve disputes in an efficient and cost-effective manner. All
disputes arising out of or relating to this Agreement shall be resolved as follows:
a) Settlement Meeting. If any dispute arises between the Parties relating to this
Agreement, then the Parties shall meet and seek to resolve the dispute, in good faith, within ten
(10) working days after a Party's request for such a meeting. The City shall send the Mayor,
Community Development Director, Public Works Director, and/or the Mayor's designee and any
persons with information relating to the dispute, and Developer shall send an owner's
representative and any consultant or other person with technical information or expertise related
to the dispute.
b) Court. If the Parties cannot resolve the matter in a settlement meeting, then
jurisdiction of any resulting litigation shall be filed in Kitsap County Superior Court, Kitsap
County, Washington, or the U.S. District Court for Western Washington, as applicable. This
Agreement shall be governed by and construed in accordance with the laws of the State of
Washington. The non -prevailing Party in any action brought to enforce this Agreement shall pay
the other Parties' expenses and reasonable attorney's fees.
Section 21. No Third -Party Beneficiaries. Except as otherwise provided herein, this
Agreement shall not create any rights enforceable by any party who is not a Party to this
Agreement.
Section 22. City's right to breach. The Parties agree that the City may, without incurring any
liability, engage in action that would otherwise be a breach if the City makes a determination on
the record that the action is necessary to avoid a serious threat to public health and safety, or if the
action is required by federal or state law.
Section 23. Developer's Compliance. The City's duties under the Agreement are expressly
conditioned upon the Developer's substantial compliance with each and every term, condition,
provision, and/or covenant in this Agreement, including all applicable federal, state, and local laws
and regulations and the Developer's obligations as identified in any approval or project permit for
the property identified in this Agreement.
Section 24. Limitation on City's Liability for Breach. Any breach of this Agreement by the
City shall give right only to damages under state contract law and shall not give rise to any liability
under Chapter 64.40 RCW, the Fifth and Fourteenth Amendments to the U.S. Constitution,
including but not limited to 42 U.S.C. § 1983, or similar state constitutional provisions.
Section 25. Third Party Legal Challenge. In the event any legal action or special proceeding
is commenced by any person or entity other than a Party to challenge this Agreement or any
provision herein, the City may elect to tender the defense of such lawsuit or individual claims in
the lawsuit to Developer. In such event, Developer shall hold the City harmless from and defend
the City from all costs and expenses incurred in the defense of such lawsuit or individual claims
in the lawsuit, including but not limited to, attorneys' fees and expenses of litigation. The
Developer shall not settle any lawsuit without the consent of the City. The City shall act in good
faith and shall not unreasonably withhold consent to settle.
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
Section 26. Specific Performance. The Parties specifically agree that damages are not an
adequate remedy for breach of this Agreement, and that the Parties are entitled to compel specific
performance of all material terms of this Agreement by any Party in default hereof.
Section 27. Recording. This Agreement shall be recorded against the Property with the real
property records of the Kitsap County Auditor. During the term of the Agreement, it is binding
upon the owners of the property and any successors in interest to such property.
Section 28. Severability. This Agreement does not violate any federal or state statute, rule,
regulation or common law known; but any provision which is found to be invalid or in violation
of any statute, rule, regulation or common law shall be considered null and void, with the
remaining provisions in the Agreement remaining viable and in effect.
Section 29. Non -Waiver of Breach. The failure of a Party to insist upon strict performance of
any of the covenants and agreements contained herein, or to exercise any option herein conferred
in one or more instances shall not be construed to be a waiver or relinquishment of said covenants,
agreements, or options, and the same shall be and remain in full force and effect.
Section 30. Written Notice. All written communications regarding enforcement or alleged
breach of this Agreement shall be sent to the parties at the addresses listed below, unless notified
to the contrary. Unless otherwise specified, any written notice hereunder shall become effective
upon the date of both emailing and mailing by registered or certified mail, and shall be deemed
sufficiently given if sent to the addressee at the address stated below:
NAME OF DEVELOPER:
JL Group, LLC
Shelly Cook
2893 Erlands Beach Loop NW
Bremerton, WA 98312
Email: shellyc@johnsonlinkortho.com
CITY:
Mayor
City of Port Orchard
216 Prospect Street
Port Orchard WA 98366
rputaansuu@portorchardwa.gov
Copies shall also be transmitted to the
City Clerk and City Attorney at the
above address.
Section 31. Time is of the essence. All time limits set forth herein are of the essence. The
Parties agree to perform all obligations under this Agreement with due diligence.
Section 32. Covenant of Good Faith and Cooperation. The Parties agree to take further
actions and execute further documents, either jointly or within their respective power and
authority, to implement the intent of this Agreement. Each Party covenants to use its best efforts
and work cooperatively in order to secure the benefits and rights under this Agreement. The Parties
shall not unreasonably withhold approvals or consents provided for in this Agreement. Each Party
shall execute and deliver to the other all further documents as are reasonably necessary to carry
out this Agreement, including the Water Improvement Project, the property dedications (if any),
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
and Development Project, as may be necessary to provide a Party with a full and complete
enjoyment of its rights and privileges under this Agreement.
Section 33. Interpretation. This Agreement has been reviewed and revised by legal counsel
for both Parties, and no presumption or rule construing ambiguity against the drafter of the
document shall apply to the interpretation or enforcement of this Agreement.
Section 37. Counterparts. The Agreement may be signed in two or more counterpart copies
with the same effect as if the signature of each counterpart copy were on a single instrument. Each
counterparty shall be deemed as an original as to the Party whose signature it bears, and all such
counterparts shall constitute one document.
Section 38. Entire Agreement. The written provisions and terms of this Agreement, together
with the Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other
representative of the Parties, and such statements shall not be effective or be construed as entering
into or forming a part of or altering in any manner whatsoever, this Agreement. The entire
agreement between the Parties with respect to the subject matter hereunder is contained in this
Agreement and exhibits thereto.
IN WITNESS WHEREOF, the Parties have executed this Agreement on this day of
.2023.
JL Group, LLC
By:
[Insert name]
Its:
APPROVED AS TO FORM:
Keller Rohrback
Attorney for Developer
EXHIBITS TO AGREEMENT:
CITY OF PORT ORCHARD
Robert Putaansuu
Its: Mayor
APPROVED AS TO FORM:
Jennifer S. Robertson
Attorney for Port Orchard
ATTEST:
Brandy Wallace, MMC
Port Orchard City Clerk
Exhibit A — Legal Description of the Property being developed by Developer
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
Exhibit B — Map of the Property and the Development Project
Exhibit C — Public comments and petition received in support of protecting the significant tree
on the Property.
Exhibit D — Conservation Easement Form
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
NOTARY BLOCK FOR PORT ORCHARD
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
I certify that I know or have satisfactory evidence that Robert Putaansuu is the person
who appeared before me, and said person acknowledged that he signed this instrument, on oath
stated that he was authorized to execute the instrument and acknowledged it as the Mayor of Port
Orchard to be the free and voluntary act of such Party for the uses and purposes mentioned in the
instrument.
Dated: .2023.
(print or type name)
NOTARY PUBLIC in and for the
State of Washington, residing at:
My Commission expires:
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
NOTARY BLOCK FOR JL GROUP, LLC
STATE OF WASHINGTON
ss.
COUNTY OF
I certify that I know or have satisfactory evidence that is the person
who appeared before me, and said person acknowledged that (he/she) signed this instrument, on
oath stated that he was authorized to execute the instrument and acknowledged it as the Managing
Member of JL Group, LLC, a Washington limited liability company to be the free and voluntary
act of such Party for the uses and purposes mentioned in the instrument.
Dated: , 2023.
(print or type name)
NOTARY PUBLIC in and for the
State of Washington, residing at:_
My Commission expires:
COUNTER COMPLETE
DocuSign Envelope ID: 5172D81OD-71DO-4930-BD41-7563D88EE062 Kitsap County Parcel Details ryofPo o,na,d
omm ,ryoe.eoPme
Tax Description
Parcel #: 252401-3-007-2005
791 MITCHELL AVE
PORT ORCHARD, WA 98366
THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 25, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M., IN KITSAP COUNTY,
WASHINGTON, DESCRIBED AS FOLLOWS: BEGINNING 685 FEET SOUTH OF THE
NORTHWEST CORNER OF THE WEST HALF OF THE SOUTHEAST QUARTER OF THE
SOUTHWEST QUARTER OF SECTION 25, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M.,
IN KITSAP COUNTY, WASHINGTON; THENCE SOUTH 120 FEET; THENCE EAST 335
FEET; THENCE NORTH 120 FEET; THENCE WEST 335 FEET TO THE POINT OF
BEGINNING; EXCEPT THAT PORTION THEREOF LYING WEST OF THE EAST MARGIN OF
MITCHELL ROAD; TOGETHER WITH THAT PORTION OF VACATED COUNTY ROAD PER
VOLUME 8 OF COMMISSIONER'S JOURNAL, PAGE 591, ADJOINING SAID PREMISES
ON THE EAST.
https://psearch. kitsapgov.com/pdetails/Details?parcel=252401-3-007-2005&page=taxdescription 1 /1
LU23-Dev Agreement-05
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
DATUM
NAVD 88
Scale: 1 "= 20'
20 0 20 40
Scale in Feet
NOTE
THE APPROXIMATE LOCATION OF EXISTING UNDERGROUND UTILITIES
ARE SHOWN ON THE PLANS. IT IS THE CONTRACTOR'S RESPONSIBILITY
TO DETERMINE THE LOCATION OF EXISTING UTILITIES PRIOR TO
COMMENCING WORK. THE CONTRACTOR SHALL BE RESPONSIBLE FOR
DAMAGES THAT MIGHT BE OCCASIONED BY THE CONTRACTOR'S FAILURE
TO LOCATE, PRESERVE AND PROTECT UNDERGROUND UTILITIES.
CALL 48 HOURS
BEFORE YOU DIG
811
REVISIONS
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BY
DATE
`�, N.L.Olson &Associates Inc.
Engineering, Planning and Surveying
(360) 876-2284
2453 Bethel Avenue, P.O. Box 637, Port Orchard, WA 98366
RELOCATED TAYLOR ST EXHIBIT
JOHNSONLINK ORTHODONTICS - C.U.P. / LDAP
791 Mitchell Avenue Port Orchard, WA 98366
Portion of the Soutwest Quarter of Section 25,
Township 24 North, Range 1 East, W.M. in Kitsap County, Washington
FOR:
BJC Group
3780 SE Mile Hill Drive
Port Orchard, WA 98366
Phone: (360) 895-0896
SCALE: 1"=20'
DATE: September 28, 2023
DESIGNED
JFK
5/23
PROJECT NUMBER:
21-12027
DRAWN
auE
s/23
CHECKED
NL011
5/23
APPROVED
ACCEPTED
ISHEET C3.00
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
City of Port Orchard Permit Center
Attn: Planning Clerk & Hearing Examiner
RE: Johnsonlink Orthodontics 791 Mitchell Ave, Port Orchard WA 98366
"Miracles happen not in opposition to nature but in opposition to what we know
of nature." St Augustine.
The (298) signature list previously submitted concerning the possible removal of a
Significant Redwood tree located at 791 Mitchell Ave. was canvassed by foot. I
wish you could have been there to experience the general enthusiasm during
conversations, the exchange of individual experiences, what the individuals
offer to the community and some perspectives on their expectations from the
city and its development.
Copy of Statement attached to sianature list below:
The below signatures come from the people of our community and friends who
wish that the Elder Redwood Tree remain uncut from the neighborhood of 791
Mitchell Ave. This is an act of caring ONLY - coming from diverse awareness of
the inhabitants who are cognizant that the tree is a being that provides, oxygen,
shade, bio diversity, beauty, etc. which add to its being there. It is a part of
History (here longer than most of us), Science (biology, chemistry, helps with
climate change), Spirituality, Religion, (or not) to mention a few. Just like each of
us. (Young people are included if they so wish.) Copies will be given to the city
and the builder. Thank You.
Walks of life consist of: police/fire/postal work, teaching, real estate, forestry,
store management/owners, government, gardening, medicine, etc. A
combination of retirees, students, and "our next generation" signed from various
races and ethnicities giving a community/neighborhood representation of those
included,
One lady explained she teaches language to middle school students who
come from both Russia and the Ukraine. The police person has a redwood on
property. A retired forester came to view the tree and give an opinion. A
Dutch/Bali gentlemen explained that 2 of his children are stationed in Poland.
An exchange of neighborhood awareness was passed in conversations such as
a teacher indicated land clearing at the school district where employed.
Another signee indicated that he was concerned with a clearing that involved
a salmon creek on or near Woods St. off Mile Hill Rd. and was actively working to
help with that project issue.
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
The pictures of the tree (previously sent; that a council member helpfully
suggested) and other surrounding vegetation - display the beauty of that area -
though nothing can quite actually replace being in the presence there of. It
would be to one's benefit to take the time to see it in person.
It is approximately as tall as a nearby phone tower and is a combination of 3
trees joined within one base. [In redwood forests, "daughter circles" or redwood
frees can be found. These form years after a "rnother tree dies, in the pass this
usually occurred after successive fires caused by lightning damaged the mother
tree or new trees grew from burls on the roots of the mother tree for the root -
crown can survive after the tree succumbs. *] I think it measures approximately
97 inches around. Coastal Redwoods are the tallest trees in the world. They
thrive in places where conditions are difficult, including where fires are common.
They move into devastated areas and grow where other trees do not. *
Large trees are essential for the well-being of the Earth, they play essential roles
in wildlife habitat, species diversity, nutrient cycles, hydrological regimes [A
single tree in the Amazon Forest lifts hundreds of liters of water every day. The
rain forest behaves like a green ocean, transpiring water that rains upward, as
though gravity were reversed These transpired mists then flow across the
continent in great rivers of vapor. The water condenses, falls as rain, and is
pulled back up again through the trees. Tree; A Life Stoa by David Suzuki &
Wayne Grady), and large trees trap more pollutants than younger ones do.
"As I went deeper and deeper into the subject of trees, I entered a complex
and diverse forest of knowledge, from archeological to mystical. I learned that
we wouldn't be here at all - we, the mammals and humans on this planet - if not
for trees. Whether huge forests or a single specimen, they are one of the oldest
living things on Earth. Trees continue to be cut down by corporations or
individuals motivated by greed or poverty, who are ignorant of, or indifferent to
the consequences or meaning of what they do. It's possible to learn from past
history [Easter Island - Jared Diamond's description of what happened to its in
habitants. Just as Easter Island provides a lesson in what not to do; Japan and
Tikopia provide examples of how that same fate came close, but was avoided,]
and see what will befall us or how trees may save us." (Above paragraph and
(*) Taken from Like a Tree by Jean Bolen)
Somethina to think about - Da Qlants feel?
The simple answer is that, currently, no one is sure whether plants can feel pain.
We do know that they can feel sensations. Studies show that plants can feel a
touch as light as a caterpillar's footsteps. While they may not have brains like
humans do, plants talk to one another through smell and even communicate
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
with other trees (through their root system) and insects to maintain survival. Like
any living thing, plants want to remain alive, and it's possible that plants have
intelligence and sentience that we cannot yet detect. One day, we might learn
that plants have ways of experiencing pain that we have yet to comprehend.
(a combo from Haley Lyndes Yes, Some Plants Do "Scream" etc. Yahoo, Kat
McGowan Science How Plants Secretly talk to Each Other, Jane Goodall Seeds
of Hope)
From a different perspective -
As awareness of global warming increases, more tourists than ever are opting for
eco-friendly holidays which is one way saving trees and profitability may come
together. $1-2 billion of global tourism is linked to the world network of around
150,000 protected sites in a 2010 announcement by UN Under -Secretary
General & UN Environment Program Executive Director.
The Earth Child Institute's new project "2.2 Billion: The Power of One Child + One
Tree = Sustainable Future for All.'' It will connect schools or classes in one country
with those in another. Children doing something for the environment together
and tangibly, through Jane Goodall's Roots and Shoots Organization, which
began in Africa.
"When the power of love over comes the love of power then peace will be."
The Cree native elder continued on, "When our waters have all been poisoned,
our trees all cut down, and the last fish caught then it'll be understood that
money can't be eaten" or, breathed. The native traditional have understood
and have been teaching a proper love for the land, interconnectedness and
importance of all living beings which can be interpreted all beings are sacred.
Respect: We are more than consumers and commodities. What we do to
ourselves we do to others and what others do to us is also done to themselves.
Our bodies come from the earth. What we do to the earth we do to our bodies.
Our bodies are borrowed from earth and must be returned. They temporarily
house spirit. What is unseen is as real as what we see with physical eyes - even
more so. (What can be seen is temporary, but what cannot be seen is eternal
(Bible: 2 Corin 4:18)).
What do trees mean to you? How long can you hold your breath? The trees
and us are an integration - we breathe each other.
"Our lives begin to end the day we become silent about things that matter."
The Reverend Dr. Martin Luther King, Jr.
Mifakvye Oyasin - Namaste - Amen
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
Sug-ciested Redding:
Seeds of Hope (Audio or Book) by Jane Goodall - Renowned naturalist and best-
selling author examines the critical role that trees and plants play in our world.
Like a Tree by Jean Bolen - This book draws from her back ground as a medical
docior, psychiatrisi, and Jungian analyst. She writes eloquently about
deforestation, global warming, and overpopulation as well as the work of
Amnesty International and the UN Commission on the status of Women. Most of
all, she makes us aware that the air and water we need for life depends on
trees, and trees depend on us to save them.
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DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
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The below signatures come from the people of our community and friends I
wish that the Elder Redwood Tree remain uncut from the neighborhood of
--- Mitchell Ave, This is an act of caring ONLY - coming from diverse awareness of
the inhabitants who are cognizant that the tree is a being that provides, oxygen,
shade, bio diversity, beauty, etc which add to its being there. It is a part of
History (here longer than most of us), Science (biology, chemistry, helps with
climate change), Spirituality, Religion, (or not) to mention a few. Just like each of
us. (Young people are included if they so wish.) Copies will be given to the city
and the builder. Thank You,
LA�n
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DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
The below signatures come From the people of our community and friends who
wish that the Elder Redwood Tree remain uncut from the neighborhood of
--- Mitchell Ave. This is an act of caring ONLY - coming from diverse awareness of
the inhabitants who are cognizant that the tree is a being that provides, oxygen,
shade, bio diversity, beauty, etc which add to its being there, It is a part of
History (here longer than most of us), Science (biology, chemistry, helps with
climate change), Spirituality, Religion, (or not) to mention a few. Just like each of
us. (Yo,ung people are 'included if they so wish.) Copies will be given to the city
and the builder. Thank You,
Axe,
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
The below signatures. come from the people of our community and friends wl-I
wish that the Elder Redwood Tree remain uncut from the neighborhood ofL
--- Mitchell Ave. This is an act of caring ONLY - coming from diverse awareness of
the inhabitants who are cognizant that the tree is a being that provides, oxygen,
shade, bio diversity, beauty, etc which add to its being there. It is a part of
History (here longer than most of us), Science (biology, chemistry, helps with
climate change), Spirituality, Religion, (or not) to mention a few. Just like each of
us. (Young people are included if ]hey so wish.) Copies will be given to the city
and the builder. Thank You.
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DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
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The below signatures come from the people of our community and friends who
wish that the Elder Redwood Tree remain uncut from the neighborhood of -
--- Mitchell Ave. This is an act of caring ONLY - coming from diverse awareness of
the inhabitants who are cognizant that the tree is a being that provides, oxygen,
shade, bio diversity, beauty, etc which add to its being there. It is a part of
History (here longer than most of us), Science (biology, chemistry, helps with
climate change), Spirituality, Religion, (or not) to mention a few. Just like each of
us, (Young people are included if they so wish,) Copies will be given to the city
and the builder. Thank You.
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DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
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The below signatures come from the people of our community and friends who
wish that the Elder Redwood Tree remain uncut from the neighborhood of --21-1
--- Mitchell Ave. This is an act of caring ONLY - coming from diverse awareness of
the inhabitants who are cognizant that the tree is a being that provides, oxygen,
shade, bio diversity, beauty, etc which add to its being there. It is a part of
History (here longer than most of use, Science (biology, chemistry, helps with
climate change, Spirituality, Religion, (or not) to mention a few. Just like each of
us. (Young people are included if they so wishj Copies will be given to the ciiy
and the builder. Thank You,
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The below signatures come from the people of our community and Friends w �
wish that the Elder Redwood Tree remain uncut from the neighborhood of -2 -
--- Mitchell Ave. This is an act of caring ONLY - coming from diverse awareness of
the inhabitants who are cognizant that the tree is a being that provides, oxygen,
shade,,bio diversity, beauty, etc which add to its being there. It is a part of
History (here longer than most of us), Science (biology, chemistry, helps with
climate change), Spirituality, Religion, (or not) to mention a few. Just like each of
us. (Young people; are included if they so wish.) Copies will Me given to the city
and the builder. Thank You.
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DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
The below signatures come Pram the people of our community and friends who
wish that the Elder Redwood Tree remain uncut from the neighborhood of ---�?Y/
--- Mitchell Ave. This is an act of caring ONLY - coming from diverse awareness of
the inhabitants who are cognizant that the tree is a being that provides, oxygen,
shade, bio diversity, beauty, etc which add to its being there. It is a part of
History (here longer than most of us), Science (biology, chemistry, helps with
climate change, Spirituality, Religion, (or notj to mention a few. ,Just like each of
us. (Young people are included if they so will i j Copies will be given is iho city
and the builder. Thank You.
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DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
The below signatures come from the people of our community and friends w. h..
wish that the Elder Redwood Tree remain uncut from the neighborhood of
--��
--- Mitchell Ave. This is an act of caring ONLY - coming from diverse awareness of
the inhabitants who are cognizant that the tree is a being that provides, oxygen,
shade, bio diversity, beauty, etc which add to its being there. It is a part of
History, (here longer than most of us), Science (biology, chemistry, helps with
climate change), Spirituality, Religion, (or not) to mention a few. Just like each of
us. (Young people are included if they so wish.) Copies will be given to the city
and the builder. Thank You.
r�GS S i � 5•%.pv, �. rv'
�- rLi�F'1�. .CJY✓1 � _�
�
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
From: akinomneelle@aof.som
To: Permit Center
Subject: Lu23-cup-02
Date: Monday, August 14, 2023 9:15:39 AM
Some people who received this message don't often get email from akinomneelie@aol.com. Learn why this is
important
Please don't cut down the tree. Isn't there any way to build around it? Everyone clear -cuts a lot
then whines about the temperature outside. More trees in an area creates a cooler
microclimate. Old growth should be protected. Thanks! !
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
From:
shewersba seball@wav_ecable.com
To:
P_lanning Mailbox
Cc:
Rob Putaansuu
Subject:
FW: Redwood Tree
Date:
Sunday, August 13, 2023 10:29,42 AM
Attachments:
Untitled attachment 60004.txt
Untitled attachment 00007.txt
Untitled attachment 00010Axt
Untitled attachment 00013Axt
Untitled attachment 00016.tK
Untitled attachment 00019.bct
[Some people who received this message doll t often get email from showersbaseballq�.w,avecable.con>� Learn wliy
this is important at Mips:l'aki.ms'Lean1_AboittSenderlden �catiati ] r
Hello,
I recently read the article in the Kitsap Sun about saNing the
Redwood tree ur Port Orchard. After Visit* the site and looking at the
tree_ I can't support keeping it_ For one- its' location looks unsafe to hue.
I have attached pictures showing it has been limbed several fillies to ptevent
power lines from being entangled.
I axis not an arborist and don't know what species the redwood is_ but
I read ul the article where it will continue to grow, and metal cables or
synthetic rogues will have to be attached to t11e trunks to prevent them from
eventually splitting. I don't think it is worth it.
I can uriderstand wanting to keep the tree, but I don't think climate
change or environmental stability has anything to do with it. To me it is
safety. The tree_ because of its' location with prnver Riles. will
continually have to be limbed. putting the lives of men and women in
jeopardy_ If it continues to grow. there will come a time when it will not
be manageable.
Rob,
Can you please share this email and the pictures with file council?
Thanks
Bob Showers
360-731-7226
-----Original Message -----
From: Robert Showers.-.robe-rt.shoNvers55(&gmail.com-,
Sent: Sunday. August 13. 2023 10:01 AIM
To: Robert Showers
Subject: Redwood T
m
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DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
From: Brenda Walls
To: Planning Mailbox
Subject: Please Save the tree on 791 Mitchell Ave.
Date: Sunday, August 13, 2023 9:22:23 PM
[Some people who received this message don't often get email f orn brendawalls440gmail.com. Learn why this is
important at ]
The orthodontist office can build but maybe not as big —use the tree as an amazing focal point!
Frankly I wish the city did more to save old growth trees. People shouldn't be able to cut older trees down just
because it doesn't fit in with their plans. We NEED these trees now more then ever.
In some counties you can't cut down trees over x amount of years without special permission and a darn good
reason why.
Until that happens here, I really would like to request that you do the right thing and make them keep the tree if they
are going to build.
Respectfully.
Brenda Walls
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
8/16/23, 12:56 PM Does WA state have a right to clean and healthful environment - Google Search
Go, gle Does WA state have a right to clean and healthful envir. X v C.. q 0 ...
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About 410,000,000 results (0,47 seconds)
The Healthy Environment for All Act (HEAL Act) was passed in 2021 and is
Washington's first state law that defines environmental justice. The HEAL
Act establishes a coordinated approach for state agencies to reduce
environmental and health disparities in Washington and improve the
health of Washington state residents,
Washington State I Office of the Attorney General (.gov)
Q) hUps://www.atg.wa.gov,environmental-justice•Initiative j
Environmental Justice Initiative I Washington State
0 About featured snippets • OM Feedback
People also ask
What is the environmental justice Act in Washington state?
What is the HEAL Act? The Healthy Environment for All Act (also known as the HEAL Act)
was passed by the Legislature in 2021. It is the first statewide law to create a coordinated
and collaborative approach to environmental justice, making It a priority and part of the
mission of key state agencies,
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hope://ecology.wa.gov r About -us) Who -we -ere i HEAL
Washington's Environmental Justice Law (HEAL Act)
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Washington State House Democrats (yev)
https:Hhousedreriiorratsma.guv • lekanoff r 2p21 /02/09 i
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Feb 9, 2021 — Establishing a Green Amendment would ensure that Washingtonians have legal
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Green Amendment would add'healthy environment'to ...
Jan 7, 2022 — That's not stopping two state lawmakers from proposing a new Green
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Dec 6, 2022 — A green amendment could guarantee a constitutional right to a clean environment
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Mar 30, 2021 — In Washington, there is a proposal to amend the state constitution to recognize
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8/16/23, 1:00 PM Environmental Justice i Washington State Department of Health
Washington State Department of Wa-shingtc)n State
HEALTH
of Health
@ English IV
Environmental Justice
The passage of the Heal by Environment far Ail
We're Hiring!
(HEAL) Act in 2021 is a historic step toward
eliminating environmental and health disparities
join the DOH
among communities of color and low income
HEAL
households. It is the first statewide law in
Implementation
Washington to create a coordinated state agency
Team!
approach to environmental justice.
jqg-Lty &
The law covers seven state agencies: the
Environmental
Washington State Department of Health (DOH);
justice ,
the state departments of Agriculture, Commerce,
Strategist for
Ecology, Natural Resources, and Transportation;
Tribal Relations
and Puget Sound Partnership. It allows other
agencies to opt in. The HEAL Act builds on and
implements some of the key recommendations
Community
from the Environmental justice Task Force .(PDF).
Engagement Plan
Some key elements include:
DRAFT
Incorporating environmental justice part of
Communit-
agency work, including incorporating
Engagement
environmental justice into agency strategic
Plan for HEAL
plans, developing community engagement
Act
plans and tribal consultation frameworks, and
Implementation
conducting environmental justice assessments
(PDF)
for certain significant actions.
* Promoting the equitable sharing of
environmental benefits and investing in
Implementation
https://doh.wa.gov/community-and-environment/health-equity/environmental-justice 1/7
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
8/16/23, 1:00 PM Environmental Justice I Washington State Department of Health
communities that have experienced the Plan
greatest environmental and health burdens.
Agencies must focus expenditures toward Environmental
creating environmental benefits for Justice
overburdened communities and vulnerable Imi-,)Le—m—e -nI a t i Q n
populations. The law sets a goal of 40% of Plan (PDF),
expenditures to these communities.
C] Providing a voice for disproportionately
affected communities and centering environmental justice. The law
creates an environmental justice council to advise the state and an
interagency work group to coordinate among agencies.
® Supporting evaluation tools and processes. The law requires the
Department of Health must maintain and update the Environmental
Health Disparities map for evaluating and tracking environmental health
disparities. Agencies and the council must track, measure, and report
on environmental justice implementation.
Defining Environmental
justice
The law establishes a clear definition for Washington that builds on the
Environmental Protection Agency's definition of environmental justice:
"Environmental justice means the fair treatment and meaningful
involvement of all people regardless of race, color, national origin, or
income with respect to the development, implementation, and
enforcement of environmental laws, rules, and policies. Environmental
justice includes addressing disproportionate environmental health impacts
in all laws, rules, and policies with environmental impacts by prioritizing
vulnerable populations and overburdened communities, the equitable
distribution of resources and benefits, and eliminating harm."
This video explains the disproportionate impacts of environmental burdens
on people with low incomes and people of color. For more information visit
the EPA's Environmental justice_ websitg.
https://doh.wa.gov/community-and-environmentthealth-equity/environmental-justice 2/7
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
8/16/23, 1:00 PM Environmental Justice I Washington State Department of Health
Environmental Justice
Council
The law also creates an En it n enta Justice Council to provide
recommendations and guidance to the state and an Interagency
Workgroup to assist with technical coordination among the state agencies.
Subscribe to Environmental lustice Council Email Updates
Agency Coordination and
Requirements
The law gives agencies standards of practice and seeks to accelerate and
coordinate work. DOH is required to convene an interagency workgroup to
support Environmental justice Council work and ensure coordination
among agencies.
Agencies are required to:
Develop and implement a community engagement plan.
- Develop and implement tribal consultation framework and offer tribal
consultation.
w Incorporate environmental justice in implementation plans of agency
strategic plans.
a Incorporate environmental justice into budget development process
and in funding and grant decisions.
o Conduct environmental justice assessments on significant agency
actions
■ Develop metrics, measure progress, and report progress to the
Environmental justice Council and Office of Financial Management.
® Serve at Environmental justice Council meetings as non -voting liaisons
and participate in an interagency workgroup.
https:lldoh.wa.gov/community-and-onvlronmentlhealth-equity/environmental-Justice 3/7
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
8/16/23, 1:00 PM Environmental Justice I Washington State Department of Health
Role of the Washington
Tracking Network
W s ' gton Tracking Network (WTN) is a DOH program focused on making
public health data more accessible. This data includes our Environmental
Health Dis ies (EHD) map, an interactive mapping tool that compares
communities across our state for environmental health disparities, and
provides insights into where public investments can be prioritized. With the
passage of the HEAL Act, the EHD map is identified as a resource to agency
decision -making and requires DOH to maintain and expand the map. The
law also requires the Washington State Institute for Public Policy to conduct
a technical review of the map.
Under the new law, WTN will:
• Add functionality to track changes in environmental health disparities
over time.
Further develop the EHD map engaging with communities, researchers,
and others.
* Perform a comprehensive evaluation of the map every three years to
ensure that the most current modeling and methods are being used.
Expand online video training on how to use the EHD map.
Provide support and consultation to agencies on how to use the EHD
map.
Timeline
The following are some of the key milestones required:
January 1, 2022 - Department of Health convenes the Environmental
Justice Council.
July 1, 2022 - Agencies develop Community Engagement Plans.
September 1, 2022 - Agencies begin to provide annual reports to
Environmental Justice Council.
htips://doh.wa.gov/community-and-environmenttheal(h-equity/environmental-justice 47
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
8/16/23, 1:00 PM Environmental Justice I Washington State Department of Health
a November 1, 2022 - Washington State Institute for Public Policy reviews
the EHD map.
o 2022 - Agencies develop tribal consultation frameworks in coordination
with tribal governments.
® January 1, 2023 - Agencies incorporate implementation plans into
agency strategic plans.
July 1, 2023 - Agencies implement and publish budgeting environmental
justice principles, and begin conducting environmental justice
assessments.
m November 30, 2023 - Council submits final report to legislature and
governor.
September 1, 2024 - Agencies publish dashboard reports.
Q 2024 - Department of Ecology begins reporting summary auctions
reports by calendar year to the council.
July 1, 2025 - Agencies define additional significant agency actions.
® December 1, 2027 - Department of Ecology begins reporting on
implementation of the Climate Commitment Act to the council.
Note: The Climate Commitment Act (CCA) requires the Environmental
justice Council to advise on several elements of climate programs and
receive reports on certain aspects of the implementation of this law. This
timeline will be updated as more information is available.
Environmental Justice
Speaker Series
This series was developed to highlight the leadership and expertise of
community advocates and leaders and to learn from the work they're doing
to advance environmental justice for tribes and communities across
Washington state.
Recordiri&� rp it 19, 2023 - Environmental Justice and Sense of Place
featuring Twa-le Abrahamson -Swan (Spokane) from River Warrior Society -
and Shelly Boyd (Sinixt).
https:Hdoh,wa.govlcommunity-and-envlronmenYhealth-equity/environmental-Justice 5/7
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
8/16/23, 1:00 PM Environmental Justice I Washington State Department of Health
Recording April 26, 2023 - OccupatioDl_S_afely, Worker Health, and
Environmental lustice featuring Edgar Franks from Familias Unidas por la
justicia and Rosalinda Guillen from Community to Community.
ecordingLUV3, 2023 - Tribal Indigenous Perspectives on Environmental
and Climatgju5tice featuring Pah-tu Pitt (Warm Springs/Wasco) from Dative
Iui and jay julius (Lummi) from Se,Si,Le and Julius Consulting LLC.
Recording: May 10, 2023 - Youth Perspex ilves_onFnvironm_ental and.
Climate ustice featuring Neli jasuja, Andrea Martinez, Fatima Camara,
Jaydalen Blossom, and Emma Coopersmith from Young Women
Empowerad's Y-WF Grow pLQgram.
Recording: May 17, 2D�3 - Environmentgl justice and Community Ca -
Governance; A Conversation Between Community and State Agency 5taff
featuring Faduma Fido from Peoples Economy Lab, Nirae Petty from the
Urban League of Metropolitan Seattle, Charmila Ajmera from the
Washington State Department of Health, and Rowena Pineda from the
Washington State Environmental Justice Council.
Reco g�y�,, 2023 - The Role of Community -Based Participat�ory
Research in Achieving Environmental Justice and Reducing Environmental
Health Disparities featuring Dr. Anjum Hajat from the University of
Washington Department of ERLdgmioLQgy and Paulina Lopez and Lissette
Palestro from the Duwamish River Community Coalition.
Reports and Information
Environmental Justice Factsheet (PDF)
■ Spanish: Estado de Washington invierte en justicia ambiental a traves de
LQy HEAL (PDF)
■ Vietnamese: Tieu Bang Washington 6L tu'vho tong bangmoi tru'o'ng
■ Russian: B)iaCT16 WTaTa BaWWWTOH AenaFOT BKA A B 3KonorwgecKVM
QP-d e,gnl/lBocTb B paMKax HEAL Act (PDF),
Environmental justice Task Force Final Repor (PDF).
https:lldoh.wa.govtcomrhunity-and-envlronment/health-equitylenvironmental-Justice 6/7
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
9be 111[tobbigton Post
Democracy Dies in Darkness
Judge rules in favor of Montana youths in landmark climate
decision
'This is a monumental decision,' said a lawyer for the young plaintiffs. The ruling could
influence how judges handle similar cases in other states.
w
Ya
By Kate Selig
Updated August 14, 2023 at 6:13 p.m. EDT I Published August 14, 2023 at 12:46 p.m. EDT
In the first ruling of its kind nationwide, a Montana state court decided Monday in favor of young people who
alleged the state violated their right to a "clean and healthful environment" by promoting the use of fossil fuels.
The court determined that a provision in the Montana Environmental Policy Act has harmed the state's environment
and the young plaintiffs by preventing Montana from considering the climate impacts of energy projects. The
provision is accordingly unconstitutional, the court said.
"This is a huge win for Montana, for youth, for democracy and for our climate," said Julia Olson, the executive
director of Our Children's Trust, which brought Field v. Montana. "More rulings like this will certainly come."
The sweeping win, one of the strongest decisions on climate change ever issued by a court, could energize the
environmental movement and usher in a wave of cases aimed at advancing action on climate change, experts say.
The ruling — which invalidates the provision blocking climate considerations — also represents a rare victory for
climate activists who have tried to use the courts to push back against government policies and industrial activities
they say are harming the planet. In this case, it involved 16 young Montanans, ranging in age from 5 to 22, who
brought the nation's first constitutional and first youth -led climate lawsuit to go to trial. Those youths are elated by
the decision, according to Our Children's Trust.
Though the cumulative number of climate cases around the world has more than doubled in the last five years,
youth -led lawsuits in the United States have faced an uphill battle. Already, at least 1.4 of these cases have been
dismissed, according to a July report from the U.N. Environment Program and Columbia University's Sabin Center
for Climate Change Law. The report said about three-quarters of the approximately 2,200 ongoing or concluded
cases were filed before courts in the United States.
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
But the number of successes internationally is growing, as is the diversity of those taking these cases to court,
including a rise in legal action brought by youths, women's groups, local communities and Indigenous people. Of the
cases that have been decided, more than half have had outcomes favorable to climate action, according to a 2023
report from the Grantham Research Institute on Climate Change and the Environment.
The Montana case will face an appeal to the state Supreme Court, Emily Flower, a spokesperson for Montana
Attorney General Austin Knudsen (R), confirmed Monday. She decried the ruling as "absurd" and said Montanans
cannot be blamed for changing the climate.
"Their same legal theory has been thrown out of federal court and courts in more than a dozen states," said Flower.
"It should have been here as well."
Despite the track record of dismissals for youth -led climate cases in the United States, experts said the Montana
youths had an advantage in the state's constitution, which guarantees a right to a "clean and healthful environment."
Montana, a major coal producer, is home to the largest recoverable coal reserves in the country. The plaintiffs
attorneys say the state has never denied a permit for a fossil fuel project.
The youths focused on this constitutional right across five days of emotional testimony in June, where they made
claims about injuries they have suffered as a result of climate change. A 15-year-old with asthma described himself
as "a prisoner in my own home" when isolating with covid during a period of intense wildfire smoke. Rikki Held, the
22-year-old plaintiff for whom the lawsuit is named, detailed how extreme weather has hurt her family's ranch.
Held testified that a favorable judgment would make her more hopeful for the future. "I know that climate change is
a global issue, but Montana has to take responsibility for our part in that," she said.
Attorneys for the state countered that Montana's contribution to global greenhouse gas emissions is small. If the law
in question were altered or overturned, Montana Assistant Attorney General Michael Russell said, there would be
"no meaningful impact or appreciable effect" on the climate.
The state began and rested its defense on the same day, bringing the trial to an unexpectedly early close on June 20.
In a pivot from its expected defense disputing the climate science behind the plaintiffs' case, the state focused
instead on arguing that the legislature should weigh in on the contested law, not the judiciary.
Russell derided the case in his closing statement as a "week-long airing of political grievances that properly belong in
the legislature, not a court of law."
Michael Gerrard, the founder of Columbia's Sabin Center, said the change in strategy came as a surprise: "Everyone
expected them to put on a more vigorous defense," he said. "And they may have concluded that the underlying
science of climate change was so strong that they didn't want to contest it."
The state's defense was unsuccessful. Judge Kathy Seeley determined that the state's emissions could be fairly traced
to the legal provision blocking Montana from reviewing the climate impacts of energy projects. She further wrote
that the state's 'emissions and climate change have caused harm to the environment and the youth plaintiffs.
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
"Every additional ton of GHG emissions exacerbates Plaintiffs' injuries and risks locking in irreversible climate
injuries," she wrote in the ruling.
Republican state lawmakers and a petroleum industry representative said that while they are hopeful the state's
appeal will be successful, Seeley's decision could result in fewer energy projects being permitted or subject
permitting decisions to cumbersome litigation.
"If this decision stands, it will cause great economic harm to the state of Montana," said Alan Olson, the executive
director of the Montana Petroleum Association.
Though it remains to be seen whether the Montana Supreme Court will uphold Seeley's findings, experts said the
favorable verdict for the youths could influence how judges approach similar cases in other states and prompt them
to apply "judicial courage" in addressing climate change.
The nonprofit law firm Our Children's Trust, which represents the plaintiffs, has taken legal action on behalf of
youths in all 5o states, and has cases pending in four other states. The firm's constitutional youth climate case
against the Hawaii Department of Transportation is scheduled to go to trial in June 2024.
Juliana v. United States, a 2015 case brought by Our Children's Trust that drew international attention, is also back
on path to trial after facing repeated setbacks. The case took aim at the federal government, alleging that it had
violated the 21 youths' rights to life, liberty and property, as well as failed to protect public trust resources, in taking
actions that contribute to climate change.
Phil Gregory, an attorney for the plaintiffs, said the court's verdict could empower youths everywhere to take to the
courts to secure their futures.
"There are political decisions being made without regard to the best scientific evidence and the effects they will have
on our youngest generations," he said. "This is a monumental decision."
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
From: Carol Haines
To: Permit Center
Subject: LU-23 CUP-02
Date: Friday, August 11, 2023 10:45:16 AM
Some people who received this message don't often get email from bio.haines@gmail.com. Learn why this is
important
Please modify this Development Plan to include the protection of the beautiful redwood on the
corner of Taylor and Mitchell. While developments come and go, this tree has virtually
decades more life to beautify this area. Please allow it to inspire many more generations.
Sincerely, Carol Haines
(360-871-2907)
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
Fronx Dave Krnble
TO: Flarn_iUg Maibax Rob Putaansw
cc: 'Ludndd 5T"; ma's plin.2mrWtoom
Subject, Rem Tree on i hthDdDndst s Pots 9uMrg Site off of TdWb- St
date: Me ddy, Au;Lt% K 20B II�M29 AM
Attadinrenm PC I &1&nts t v to save gn ejder tree 0&ii-ZI
Impartanae: KVh
.ro-e necole who recei-eea tn:s message con', often get emaiI er !^-�I:Ir•�b1eC� +ave��+eti3r^ Learn yybDe r,� :s
i mnartan�
Comments Regarding Proposed Road Improvements' on Taylor Ave./St.
From: Dave Kimble
To: "Ur. Nick Bond, Director of Port Orchard Cominunitz
Development
Subj: Public Comments regarding'Ian vs. Redwood Tree on Taylor
St. i dive.
Dear Director Band,
My mime is Dave Kimble of Manchester, WA. These are my comments
pertaining to the possible removal of the 100 or so year -old Redwood
located on the road margin of Taylor St. off Mitchell Ave.
I did speak with the Major and got some good info on this issue. Certainly
you have seen the store in Kitsap Sun. And there may soon be yet another
story in the press regarding this matter. Kitsap Sun stork- attached.
Some of the points discussed with Mr. l-iayor was a possible option of
where to enlarge/widen that sub -standard road that abuts the proposed
building sit of the Ortho. would be to seek property line adjustments or
such with the property owners on the other side of Taylor where the Tree
abuts. I've visited the Site. I also note that cell tourer has a pretty wide
distance between the existing L-03d acid the toi►-er. Not sure what the
requirement is but perhaps the could give a little of land to save this tree?
In speaking with the Mayor he agreed that perhaps 8-10 feet of frontage
from property owners on the opposite side of the tree location in reference
to the current road margins might work to solve this problem. Of course it
means the neighbor must be open to the idea or ceding some frontage of
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
their properties for the purpose or road wideninglsidewalk construction.
Though the U rho. is on record stating he is amicable to a solution, yet I
ave not ead or hea im coming up with any other suggestions of er
than w acid g down this 100 or so year old Redwood. I have checked o t
environs and agencies controlling those and yo now there are no
protections for this tree. T—is makes me wonder just ow many
Redwoods (of any age) actuall}- ll'e o1't?vviva in the three ca1111ties of Kit-,ap
Count-.
I fail to understand ivhat auy deutist would neerl more than thi-ee active
dental practice locations, but it is his prin-ate property of course. I get it
about it being,in way to meet road codes. But I wonder if he has
tonsil€eyed the possible blawback froin the community should he not 11-ork
a bit harder to a compromise to cutting down this twee. Lea -sing a sour
taste in this community's mouth over this issue might mean less patronage
of his new office location.
Copied to h:itsap Sun and Port Orchard Independent
Sincerely
Dave Kimble
Manchester
8j ~funs-tree_www_avp_eom
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
From: Diane L
To: Planning Mailbox
Subject: Please save the tree at 791 Mitchell
Date: Saturday, August 12, 2023 3:05:57 AM
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I've driven by hundreds of times, and always admired this magnificent tree. We have more than enough ugly
development. Please do not allow this tree to be removed.
Diane Littau
12815 Oakridge Dr SW
Port Orchard, WA 98367
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
From: Donna Branch-Glibv
To: Plannina Mailbox
Subject: Preserving the cedar tree on Mitchell Avenue, Port Orchard
Date: Wednesday, August 16, 2023 4:29:21 PM
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im portant' at ]
Dear Members of the Planning Commission,
As a long-time resident of Kitsap County, I was shocked to see the news
that this legacy tree on Mitchell Ave could be scheduled for being cut
down to make way for a business building expansion. I'm familiar with
building design and know that ways can be found to accommodate existing
vegetation. I was involved in designed a condo project where we had to
avoid 200-year-old saguros cacti in the building of 28 condos. It can
be done.
The value of that tree is wroth more to the health of people living in
Port Orchard and the flora and fauna in that neighborhood than the
convenience of the business. Please be in touch iwht our climate change
reality. We need all the trees we can preserve.
Sincerely,
Donna (Ross) Branch-Gilby, Rokalu Farms owner
15871 Glenwood Road SW
Port Orchard WA 98367
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
From: donnamtmOgmalISM
To: Permit Center
Subject: Save the treeMH
Date: Thursday, August 10, 2023 4:01:08 PM
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important at https7/Jaka.mslLeariiAhoutScndeTidentitication ]
Sent from my Whone
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
From: LIIZABL .K.F. I-f
To: Planning Mailbox
Subject: Petition signature to save redwood tree
Date: Saturday, August 12, 2023 7:52:18 AM
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this is important
This is regarding the tree at the proposed site is located at 791 Mitchell Ave.
a 100 yearly tree MUST be preserved. The business planning to build here must be
aware that their ability to function monetarily will be impacted by the endorsement of
allowing climate change concerns by cutting down healthy mature redwood trees.
Surely the planning commission will do their due diligence and research and get out
of their offices to observe planning sites to preserve and protect a tree species that
will live for another 300 years.
I am signing as Elizabeth Keith to deny these permits unless concessions are made
to preserve mature trees in the planning process.
I moved out of Kingston because of this issue in the White Horse Golf Course
expansion that cut down hundreds of acres and the promise of replanting, but no
replanting or additional infrastructure has been added to my home town to make this
huge development a neighbor. and yes we know this was done years ago, when
someone walked away with a lot of money under the table and butchered the forest
lands. this is your chance to make up even a token nod to the current cultural cry that
finds climate change behind every temperature.
Since I am also a voting citizen, I can only offer the whole permitting process and
expensive process increases for Kitsap County in the last 5 years as egregious
robbery of tax paying residents, but developers are either exempt of have deep
pockets. so act like you have a vested interest in your community and not just your fat
bank accounts.
Elizabeth Keith
4551 NW Dorado Lane
Bremerton wa 98312
Public comments for the proposed development can be submitted by Aug. 16, at 4:30
pm to the city's Department of Community Development at
planning@portorchardwa.gov. The city will schedule a public hearing to determine the
plan's fate. The date of the hearing has not yet been announced.
DocuSign Envelope ID: 51`21D810D-71D0-4930-BD41-7563D88EE062
From: aeoraiaaatzkeftcamcast.net
To: Planning Mailbox
Subject: LEAVE THE OLD REDWOOD TREE ALONE!
Date: Tuesday, August 15, 2023 10:18:33 AM
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is important
If the planner involved is the least bit capable, then this office can be built while preserving the tree.
We need to start looking at building sites with an eye to keeping as much green space as possible,
not the tither way around.
Georgia Gatzke
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
From: Glenn Spatola
To: Planning Mailbox
Subject: Plan to build an orthodontic office in Port Orchard may result in cutting down an over-90-year-old tree
Date: Saturday, August 12, 2023 2:13:23 PM
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important
I strongly support keeping that tree!!
https:llwww.kitsapsun.com/story/news/2023/08/1 ].lan-old-tree-will-be-cut-down-if-
plati-to-bu ild-aii-orthodontic-off rQ-doesnt-change1705605040071
Glenn Spatola
(360) 516-0058
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
From: Jessica Demick
To: Plannlna Mallbox
Subject: Redwood Tree
Date: Friday, August 11, 2023 6:24:33 PM
I Some people who received this message don't often get email fromjessdemick@gmail.com. Learn why this is
important
Hello, Lam writing to express my deep support for keeping the Redwood tree on Mitchell and
asking Johnsonlink Orthodontics to build around the tree rather than cutting it down.
Thank you,
Jessica Demick
Port Orchard resident
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
From: Jill Hamilton
To: Plannina Mailbox
Subject: Development
Date: Saturday, August 12, 2023 10:35:26 AM
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mnortant
Hello,
Nature is our home. Please act with conservation of it in mind in any planning.
From the Kitsap Sun:
"Johnsonlink Orthodontics, which provides services in Kitsap County and
the surrounding area and has offices in Silverdale, Poulsbo and Port
Orchard, is planning to build an approximately 4,goo-square foot office
building and surrounding parking lots."
Why are multiple offices, including one already in Port Orchard necessary? Oh, I know, it's because they
can make more profit than the land cost = GREED. This is despicable in itself, but please at least save
the elder redwood tree.
There is one major reason among many why people want to live here and it's TREES. BIG trees and the
beauty of nature must be preserved in Kitsap County.
Thank you,
Jill Hamilton
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
From: Janet Kidd
To: Plannina Mailbox
Subject: Port Orchard Redwood Tree
Date: Tuesday, August 15, 2023 10:34:45 AM
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Hello. I want to add my support for the cause of preserving the redwood tree currently slated
to be cut down for a proposed development plan on Mitchell Avenue in Port Orchard.
This is a beautiful tree that has been determined by an arborist to be in good health.
Redwood trees are important, as they clean more carbon from the air and store it
longer than any other tree. They are also used by the threatened Northern Spotted
Owl, who continues to face challenges due to the loss of old growth forest and the
relatively recent arrival of the Barred Owl.
Many businesses and residences have found workarounds when developing a
property to preserve trees. If anything, keeping the tree will add value to the
orthodontic business; it would demonstrate the company's sensitivity to local
community concerns.
Please include as a condition for the building permit the preservation of this tree.
Sincerely,
Janet Kidd
10870 Olalla Valley Rd SE
Olalla, Washington
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
From: ieifiovlee(learthlink.net
To: Plannina Mailbox
Subject: Redwood Tree 791 Mitchell Ave
Date: Monday, August 14, 2023 9:04:23 PM
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lMpQtrtaa
I hope that planning commissions and other government officials will encourage/request/require the
developer to find a way to incorporate the large, elder redwood tree into their orthodontist office
site plan.
As a property owner in the county who must request permission to remove a branch on a shoreline
tree, and who is restricted from removing a 20 year -old tree because there are eagles nesting in the
area (not in the tree), I brace at the ability of a developer to leave this tree off the site plan and to
plan to "clear cut" large, old trees.
Keep the tree, reduce one or two parking spots, and add the tree to the logo of the business. The
eco-system of the property, the city and our community will benefit.
Sincerely,
Joy Lee
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
From: LYNN MALLOY
To: Plannina Mailbox
Subject: Redwood Tree in Port Orchard
Date: Sunday, August 13, 2023 8:43:27 PM
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�o rta nt
I would hope that with all the climate change we are seeing and heat deaths on the
rise each year, trees are important to maintain, especially if they are healthy like this
one has been evaluated to be by an arborist. The building should adjust to
accommodate maintaining the tree as it stands... for the shade, air purification it
provides, it's stature, and beauty. Science has proven trees help lower heat, clean
air, and are soothing for people to look at. Don't cut the tree to put up a building.
Keep the tree and work it into your landscape plan. We need to protect every tree we
can in our communities and have less cement and asphalt to maintain heat and drive
up temperatures.
Thank You.
Lynn Malloy
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
From: Jackie Krukoff
Tot iuoinator2000; Permit Center
Subject: RE: LU23-CUP-02
Date: Friday, August 11, 2023 8:41:48 AM
Good Morning,
I just wanted to let you know that your email has been received and added to the file for the Hearing
Examiner.
Regards,
Jackie Krukoff
Planning Permit Clerk
City of Port Orchard
Office Located at 720 Prospect St.
360-874-5533 ext 130
_ikrukq-MI2QrLQrchardwu.gov.
Please make official submittals to the Permit Center at oermitcentert@r)ortorchardwa.eav to ensure maintenance of an
accurate Record.
From: jupinator2000 <jupinator2000@yahoo.com>
Sent: Thursday, August 10, 2023 1:07 PM
To: Permit Center <permitcenter@portorchardwa.gov>
Subject: LU23-CUP-02
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impo] tan
Hello,
I am a local resident and learned there is an upcoming hearing to determine the fate of a 75-100
year old Redwood tree and wanted to weigh in on this decision if I may.
While I support development and understand the need for building more housing, it needs to be
done thoughtfully. This tree is a community asset and needs to be preserved and protected for
future generations, particularly since 95% of our Redwoods are already gone. I am sure there is a
way to keep this tree. I am hoping we can keep in mind apicture beyond immediate profits to build a
livable community for all of us.
Thank you for you consideration,
Laurie Sterling
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
Sent from my Galaxy
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
From:
Lucinda Staley
To:
Permit Center
Cc:
Mary Testa -Smith
Subject:
Johnsonlink Orthodontics #LU23-CUP-02
Date:
Wednesday, August 16, 2023 1:59:06 PM
Hello Mr. Phil Olbrechts,
My name is Lucinda Tharp and I reside at 900 Mitchell Avenue at the Port Orchard Vista Apartments, which is a
rent controlled and subsidized housing for seniors, most with disabilities. I am part of a group of community
members who would like Dr. Johnson and Dr. Lingenbrink keep the 90 some year old Redwood tree at the corner
of Taylor and Mitchell as part of their development of their new Orthodontics Center. The building site plan
currently shows this tree is planned for destruction for a sidewalk. The Doctors are giving up footage to City, for
right away.
While I'm nearly certain that the permits and filings for the development of the property are in order, I find it
morally reprehensible that this large "significant" tree is planned to be cut down in that it's our life's blood and air.
It is noteworthy that the placement of the new Orthodontics Center new property here on Mitchell abuts the Kitsap
Senior High School that houses in the school year some 3000 students. The convenience and I suspect income from
this property could by far cover what it would take for the Doctors to contact the property owner across Taylor to
give up front footage to widen Taylor so that the tree maybe saved.
I believe they could convince their neighbor across Taylor and by the way the man they initially bought the
Mitchell property from, to make such an accommodation.
I know this is a heavy ask but along with this appeal, although there is a City significant tree ordinance, the legalese
is such is that basically it says all the right things about the environment and trees, it doubles back as you read on to
cover clear cutting.
Somehow beyond the permits ordinances and comprehensive plans when it gets right down to it, there has to be a
shift in the paradigm. It's 93 degrees out. There are forty of us in this building, many of us do not have ac's. We
are just one small story.
I don't know how you do this but it simply looks legal to me, all of this process.
Developers do much of language in the City's Comprehensive plan. Community members are not aware of the
system and many struggling at this point to do what they can to pay rent and buy food AND the world is on fire.
Maui (Paradise) is on fire.
Our bit of Paradise is on this small corner.
HELP Give us a voice that counts
Respectfully
Lucinda Tharp
If not you Mr. Olbrechts, then Who?
Sent from my iPad
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
From: MARILYN CALDWELL
To: Planning Mailbox
Cc: MARILYN CALDWELL
Subject: Cutting Down Tree
Date: Saturday, August 12, 2023 1:07:28 PM
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mnartant
This is a major issue with communities vs builders. Trees are needed for a variety of reasons —
oxygen, shade, beauty, etc. Surely the builders and developers are aware of this and should build
around this tree!! I! Even incorporate it in the building plans.
This is a necessity!!!!
Concerned Citizen
Marilyn Caldwell
Seabeck, WA 98380
Sent from Majl for Windows
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
From: Ngncv Sutton
To: Plannina Mailbox
Subject: Big Tree on Mitchell Ave
Date: Sunday, August 13, 2023 9:40:05 AM
[Some people who received this message don't often get email from pithy8l6oa gmail.com. Learn why this is
important at ttps:llaka.msll.earnAboutSenderldentilication I
Please do not approve the site application that would remove the 100 year old redwood on Mitchell Ave. An
alternative plan should be required that preserves the tree. Perhaps a smaller foot print and a height variance to
allow for a taller but more compact building would work.
Also, the tree root system will need protection during construction as contractors are not generally aware of the
problems with root compaction and drive their machinery too close to the tree. The result is slow death of the tree.
Thank you
Nancy Sutton
7887 SE Banner Creek Ln
Port Orchard 98367
Sent from my Whone
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
From: Shelly Cook
To: Jackie Krukoff
Subject: Re: Comment letters received for the LU23-CUP-02 Johnsonlink Orthodontics
Date: Thursday, August 17, 2023 12:30:28 PM
Hello Jackie,
Thank you for your email. I have read each of the comments from
concerned citizens and look forward to a solution that pleases our
community.
Have a lovely day,
Shelly
Shelly Cook
Practice Manager
Phone'360.337.2020
Email 5bglly.
FIND US ON FACEBOOK AND INSTAGRAM!
�e. G-1
The information contained in this transmission may contain privileged and confidential information, including patient
information protected by federal and state privacy laws. It is intended only for the use of the person(s) named above. If you
are not the intended recipient, you are hereby notified that any review, dissemination, distribution, or duplication of this
communication is strictly prohibited. If you are not the intended recipient, please contact the sender by reply email and
destroy all copies of the original message
On Thu, Aug 17, 2023 at 12:14 PM Jackie Krukoff<ikruko.fUljortorchardwa. ov> wrote:
Hello,
Here is the Dropbox link littps://www.dropbox.coin/t/nitOWHufcLik�,cr5vl for the comments
received for the LU23-CUP-02 Johnsonlink Orthodontics NOA/SEPA DNS this link expires
on 8/24/2023 Please forward this email to anyone else in your party that you see fit.
Regards,
Jackie Krukoff
Planning Permit Clerk
City of Port Orchard
Office Located at 720 Prospect St.
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
360-874-5533 ext 130
Please make official submittals to the Permit Center at to ensure maintenance of an
accurate Record.
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
From: SHELLI A GILBERT
To: Plannina Mailbox
Subject: Johnsonlink Orthodontia 791 Mitchell Ave
Date: Wednesday, August 16, 2023 3:23:08 PM
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im op rtant
11
To whom it may concern,
I have some comments and questions concerning the above development located at 791 Mitchell
Ave.
After reviewing the second (revised) proposal that was sent to me I noticed the removal of the
significant tree at the southwest corner of the property to make room for a side walk, that is one
foot wider than the existing sidewalks in the area, then a six foot wide planter, and a six foot bike
lane that is only going to be approximately 150 feet in length. That length includes the opening for
Taylor St. I do not foresee bicyclists veering to the side of the road for that short of distance since
the overpass over Mile Hill does not support that lane movement and does not appear to be
widened in the near future. There is also the set back for the cell phone tower that would interfere
with making room for said bike lane and wider sidewalk. It also appears that the portables won't be
relocated supporting South Kitsap High School to facilitate the wider sidewalks and bike lane. I
propose leaving the existing sidewalk as is. It is ADA compliant minus the plastic/rubber curb ramp
that will degrade over time with ultraviolet rays destroying it.
There are actually two significant trees, the large multi trunk redwood and the large pine tree
centrally' located on the property. The drawing doesn't designate where and how many
replacement trees are located. The tree I would like to see saved is the redwood, and the type and
location of the replacement trees for the pine tree.
Is there going to be a fence on the east side of the property? If so, how high, if not what type of
vegetation will be planted in the east side strip?
It seemed odd that an initial drawing was sent out for public comment then a revised one sent out
within a week, and the public notice on the property comment period was not revised to reflect the
new time period for comments.
Sincerely,
Shelli Gilbert
360-620-2936
Sent from Mzjl for Windows
LU 23-CUP-02
EXHIBIT 19.24
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
From: Susan McDQnQgg,fl-W,&ian
To: Planning Mailbox
Subject: tree
Date: Tuesday, August 15, 2023 10:29:58 AM
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Greetings,
Please save the tree. If the events this summer have shown us anything, it's that we
must cut back on fossil fuel use and save all the old growth we possibly can.
Thank you,
Susan
Susan McDonough-Wachtman
boldly sends her heroines where they don't want to go
https.//susanmcdonouahwachtman.wordpress.com/
DocuSign Envelope ID: 5F2D81OD-71D0-4930-BD41-7563D88EE062
Fronx I 1 earthlirknet
To: PE mina T1 -,box
cc: Sue Mahn
subjed: PledSe rla� dbe VdLP of the century'-e d bee
Date: Sdtur&y, August i2, M23113tN PM
Attadxmenf3; Midacmi,RrAr
Some people yvho received this message don't often get email ". m, solahnC&eartnlin< riet_ Learn k nX tnl'_ IS
To the Port Orchard Planning team:
i read is the Krtsap Sure of the effort to protect a century -old tree from Fei ng removed far
development of a denb!;f s office.
The photo shflws an extraordinary tree_
Please cons iderthe value of that tree:
It is cleaning the air, cool mg the neighborhood, and trapping carbaP,,.
It is In no wa,, inslgnificant: it 1, beautiful and Irreplaceable.
A development code that considers centurj-old trees insignificant is seriausiy iRawed.
You rn ay have heard about recent corn munity effort, to save a tree of similar age and size In Seattle.
Trees of that size in Seattle number only about 6000 now, and in just the last several years over 2
acres of city tree can apy has bee n tort.
Wlf en the builder's pIann to clear -curt the lot were publicized, people in the ccmmunity came
forward to fight for that tree', preservation_
Community efforts In that instance have been successful.
The developer wiII charge tthe buiidIng plans to accommodate the tree.
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
Couldn't your tree be accommodated in a similar way? Trees on the edge of lots can remain if some
compromises are made.
We truly are at a turning point with climate and the oldest trees on the land are precious.
Port Orchard, in fact the entire peninsula, is graced with abundant tree coverage. Many developed
areas, for example South Seattle, have lost that forever.
Please look to the future and see that mature trees are an important protection against heat and are
beloved by the community.
They deserve to be protected.
Please update your codes to reflect that.
Sincerely,
Susan Plahn and Douglas Langton
of Seattle and Bremerton
splahn@earthlink.net
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
After Recording Return to:
City Clerk
City of Port Orchard
216 Prospect Street
Port Orchard WA 98366
Document Title: Grant of Conservation Easement
Reference Numbers: XXX
Grantor: JL Group, LLC, a Washington limited liability company
Grantee: City of Port Orchard, a Washington municipal corporation
Abbreviated Legal Description: INSERT (Full Legal on Exhibit A)
Assessor's Property Tax Parcel No.: 252401-3-007-2005
GRANT OF CONSERVATION EASEMENT FOR TREE PRESERVATION
THIS GRANT OF A PERPETUAL CONSERVATION EASEMENT
(hereinafter "Conservation Easement") is made this day of , 2023, by
JL Group, LLC, a Washington limited liability company (hereinafter "Grantor"), to City
of Port Orchard, a Washington municipal corporation (hereinafter "Grantee" or "City"),
in perpetuity as holder of the Conservation Easement pursuant to RCW 64.04.130.
Individually they are a "Party" and together they are the "Parties."
RECITALS:
A. Grantor is the sole owner in fee simple of the property located on tax parcel
252401-3-007-2005 Kitsap County, Washington which is legally described on Exhibit A,
which is attached hereto and incorporated herein by reference (the "Protected
Property"). The Protected Property consists of approximately XX square feet of land,;
and
B. Grantor warrants that Grantor has good legal title to the Protected Property,
as well as the right to convey this Conservation Easement, and that the Protected Property
is free and clear of any encumbrances except those general exceptions contained in the
title policy and any special exceptions shown on the Preliminary Commitment that are
accepted by the Grantee; and;
C. Grantor warrants that Grantor has no actual knowledge of a release or
threatened release of hazardous substances or waste on the Protected Property; and
D. The Protected Property is zoned Commercial Mixed -Use and is in the
process of being redeveloped for medical office. The Protected Property contains a large
redwood tree of significance on the south-west corner of the Protected Property; and
Conservation Easement
Page 1 of 14
10738093.1 - 366922 - 0054
DocuSign Envelope ID: 5F2D810D-71D0-4930-BD41-7563D88EE062
E. On DATE, the City and the Grantor entered into a Development Agreement to
allow modifications to the required development standards in order to preserve the
redwood tree on the Protected Property in perpetuity. This Development Agreement
required Grantor to grant a conservation easement to the City to protect the tree; and
E. This Conservation Easement is authorized by RCW 64.04.130, the
provision of state law governing conservation easements; and
F. The Grantor and the Grantee intend and have the common purpose of retaining the
portion of the Protected Property which contains the tree and the surrounding land to the
tree dripline (hereinafter "Tree Area") as a protected area which shall not be developed.
The legal description for the Tree Area is set forth on Exhibit B which is attached hereto
and incorporated herein by reference. Such protection of the Tree Area shall continue as
a servitude running with the land, and authorizing Grantee to monitor and enforce such
restrictions, as described herein; and
G. A site plan that is to scale identifying the Tree Area and describing the
current condition and size of the redwood tree is attached to this Agreement as Exhibit C
and incorporated herein by reference as though set forth in full (the "Site Plan'); and
H. City, as the Grantee of this Conservation Easement of the Tree Area
portion of the Protected Property, is a qualified holder of conservation easements under
RCW 64.04.130;
AGREEMENT:
NOW, THEREFORE, for and in consideration of the above recitals and the
mutual covenants, terms, conditions, and restrictions contained herein and other valuable
consideration by Grantee, the receipt of which is hereby acknowledged by Grantor, and
pursuant to the laws of the State of Washington, including Chapter 64.04 of the Revised
Code of Washington, the Parties hereby agree as follows:
I. Grant. Grantor hereby grants to the Grantee a perpetual Conservation
Easement over, under, across and through the Tree Area of the Protected Property, as
described in Exhibits B and C, to protect, preserve, maintain, improve, restore, limit
future use of or otherwise conserve the Tree Area for the perpetual health of the tree.
II. Purpose. The purpose of this Conservation Easement is to assure that the
Tree Area will be retained forever in its natural and open space condition and to prevent
any use of the Protected Property that will significantly impair or interfere with health of
the tree or Tree Area. Grantor intends that this Conservation Easement will confine the
use of, or activity on, the Tree Area to such uses and activities that are consistent with this
purpose. This statement of purpose is intended as a substantive provision of the
Conservation Easement. Any ambiguity or uncertainty regarding the application of the
provisions of this Conservation Easement will be resolved so as to further this purpose.
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III. Rights of the Grantee. Grantor hereby conveys to the Grantee all rights
necessary to accomplish the purpose of this Conservation Easement, including, without
limitation, the following:
A. The right to protect, conserve, maintain, improve and restore the Tree Area for
the health and preservation of the tree.
B. The right to enter the Protected Property or allow Grantee's invitees or
licensees to enter, at a reasonable time and upon prior written notice to the
Grantor, for the following purposes (i) to make general inspection of the Tree
Area to monitor compliance with this Conservation Easement; (ii) to protect,
preserve, maintain, improve and restore the Tree Area; and (iii) to mitigate or
terminate any violation or otherwise enforce the provisions of this
Conservation Easement.
C. The right to enjoin any use of, or activity on, the Tree Area that is inconsistent
with the purpose of this Conservation Easement, including trespasses by
members of the public, and to require the restoration of such area or features
of the Tree Area as may be damaged by uses or activities inconsistent with the
provisions of this Conservation Easement, all in accordance with Section VIII.
D. The right to enforce the terms of this Conservation Easement, consistent with
Section VIII.
E. The right to place a sign on the Protected Property which acknowledges this
Conservation Easement and any conditions of access under this Conservation
Easement.
The foregoing are rights, not obligations, and shall not create any third party rights of
enforcement.
IV. Permitted Uses and Activities.
A. Grantor reserves to itself, and to its successors and assigns all rights
accruing from its ownership of the Protected Property, including the right
to engage in or permit or invite others to engage in all uses of the Protected
Property that are not prohibited herein and are not inconsistent with the
purpose of this Conservation Easement. In the event Grantor plans to
undertake actions that could be inconsistent with the purpose of this
Conservation Easement, Grantor shall provide Grantee written notice of
such intent not less than sixty (60) days prior to the date Grantor intends to
undertake the activity in question. The notice shall describe the nature,
scope, design, location, timetable, and any other material aspect of the
proposed activity in sufficient detail to permit Grantee to make an informed
judgment as to its consistency with the purpose of this Conservation
Easement. Grantee shall grant or withhold its approval in writing within
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sixty (60) days of receipt of Grantor's notice. Grantee's approval may be
withheld only upon a reasonable determination by Grantee that the action
proposed would be inconsistent with the purpose of this Conservation
Easement.
B. Improvements to the Protected Property shall be limited to those which do
not impact the Tree Area or endanger the health of the redwood tree. Any
activities, improvements, or development that do not impact the Tree Area
or the health of the redwood tree are allowed consistent with applicable
code. Grantee acknowledges and agrees that the Development Project
described in the Development Agreement between the Parties, including
work performed under Port Orchard development permits PW23-033,
PW23-034, and PW23-035, is authorized and no additional notice or
requirements under this Conservation Easement are required in order for
Grantee to implement the Development Project.
C. Nothing herein precludes the Grantor from demolishing, removing, and
remediating existing improvements on the Protected Property as of the date
of this Conservation Easement.
V. Transfer of Property. The Grantor agrees to:
A. Incorporate the terms of this Conservation Easement by reference in any
deed or other legal instrument by which it divests itself of any interest in
all or a portion of the Protected Property, including, without limitation,
leasehold interests.
B. Describe the Conservation Easement in and append it to any contract for
the transfer of any interest in the Protected Property.
C. Give written notice to the Grantee of the transfer of any interest in all or
any portion of the Protected Property no later than forty-five (45) days
prior to the date of such transfer. Such notice to the Grantee shall include
the name, address and telephone number of the prospective transferee or
the prospective transferee's representative.
The failure of the Grantor to perform any act required by this subsection shall not
impair the validity of this Conservation Easement or limit its enforceability.
VI. Extiniuishment. This Conservation Easement may be terminated or
extinguished, whether in whole or in part, only under one or more of the following
circumstances:
A. By judicial determination, by a court having jurisdiction over the
Conservation Easement, those circumstances have rendered the purpose of
this Conservation Easement impossible to achieve.
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B. In the event the redwood tree is no longer standing in the Tree Area,
through no fault of the Grantor, as a result of acts of God, such as fire,
flood, storm, and earth movement. Any and all costs of the clean-up and
removal shall be borne by Grantor.
C. In the event the redwood tree deteriorates through no fault of Grantor and
such deterioration creates a risk to public safety, the Grantor may provide
the report of a certified arborist to the City with information about the
condition of the tree, the viability of preserving the tree, and any applicable
risk to public safety. In such case, the City will consider whether the tree
should be removed, and the Conservation Easement terminated or whether
the tree can be saved or replaced, and the Conservation Easement
maintained. The City's decision shall be final. Any and all costs for such
removal, including clean-up and restoration shall be borne by Grantor.
D. By mutual agreement of the Parties.
VII. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs
and liabilities of any kind related to ownership, operation, upkeep, and maintenance of the
Protected Property, including performing routine and general maintenance in and upon
the Tree Area.
A. Taxes. Grantor shall continue to be solely responsible for payment of all
taxes and assessments levied against the Protected Property.
B. Attorneys' fees and costs for enforcement. If the Grantee commences and
successfully prosecutes an enforcement action pursuant to Section VIII
below, the Grantor shall pay all reasonable costs and expenses associated
with the enforcement action, including but not limited to, reasonable
attorneys' fees.
VIII. Enforcement and Monitoring. Grantee shall have the authority to enforce the
terms of this Conservation Easement. To exercise this authority and thereby further the
purpose of this Conservation Easement, the Grantee shall have the following rights under
this Conservation Easement, which are subject to the stated limitations:
A. Entry onto Protected Property with Reasonable Notice. If the Grantee has
reason to believe that a violation of the terms of this Conservation
Easement has occurred or is occurring, the Grantee shall have the right to
enter the Protected Property, provided that reasonable advance notice is
given to the Grantor, for the purpose of inspecting it for violations of any
requirement set forth in this Conservation Easement. Additionally, the
Grantee shall have the right to enter the Protected Property at least once a
year, at a mutually agreed time, for purposes of inspection and compliance
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monitoring regardless of whether Grantee has reason to believe that a
violation of this Conservation Easement exists.
B. Enforcement Mechanisms and Remedial Measures. If the Grantee finds
what it believes to be a violation of this Conservation Easement, it may, at
its discretion, use any available legal or equitable remedy to secure
compliance, including but not limited to seeking injunctive relief and/or
specific performance requiring the Grantor to cease and desist all activity
in violation of the terms of this Conservation Easement and to return the
Protected Property to its condition prior to any violation(s). Except when
an imminent violation could irreversibly diminish or impair the Tree Area
of the Protected Property, the Grantee shall give the Grantor written notice
of the violation and thirty (30) days in which to take corrective action prior
to commencing any legal action. The failure of Grantee to discover a
violation or to take immediate legal action shall not bar it from doing so at
a later time or constitute a waiver of its rights. Grantee may use the Site
Plan as a basis for enforcing the provisions of this Conservation Easement,
but is not limited to the use of the Site Plan to show a change of conditions.
C. Emergency Enforcement. If Grantee, in its sole discretion, determines that
circumstances require immediate action to prevent or mitigate significant
damages to the Tree Area of the Protected Property, Grantee may pursue
its remedies under this section without prior notice to Grantor or without
waiting for the period provided for cure to expire. The costs of such ation
shall be borne by Grantor.
D. Scope of Relief. Grantee's rights under this section apply equally in the
event of either actual or threatened violations of the terms of this
Conservation Easement. Grantor agrees that the Grantee's remedies at law
for any violation of the terms of this Conservation Easement are inadequate
and that Grantee shall be entitled to the injunctive relief described in this
section, both prohibitive and mandatory, in addition to such other relief to
which Grantee may be entitled, including specific performance of the terms
of this Conservation Easement, without the necessity of proving either
actual damages or the inadequacy of otherwise available legal remedies.
Grantee's remedies described in this section shall be cumulative and shall
be in addition to all remedies now or hereafter existing at law or in equity.
E. Costs of Enforcement. In the event Grantee must enforce the terms of this
Conservation Easement, any costs of restoration necessitated by acts or
omissions of Grantor, its agents, employees, contractors, invitees or
licensees in violation of the terms of this Conservation Easement and
Grantee's reasonable enforcement expenses, including reasonable
attorneys' and consultants' fees and costs, shall be borne by Grantor, its
successors or assigns.
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F. Waiver of Defenses. Grantor acknowledges it has carefully reviewed this
Conservation Easement and has consulted or had the opportunity to consult
with counsel of its terms and requirements. In full knowledge of the
provisions of this Conservation Easement, Grantor hereby waives any
claim or defense it may have against Grantee or its successors or assigns
under or pertaining to this Conservation Easement based upon waiver,
laches, estoppel or prescription.
G. Acts Beyond Grantor's Control. Nothing contained in this Conservation
Easement shall be construed to entitle the Grantee to bring any action
against Grantor to abate, correct or restore any condition in the Tree Area
or to recover damages for any injury to or change in the Protected Property
resulting from causes beyond Grantor's control, including fire, flood,
storm, and earth movement or the like.
IX. Hold Harmless. Grantor hereby agrees to release and hold harmless, indemnify
and defend Grantee, its officers, elected and appointed officials, employees and agents
(collectively "Indemnified Parties") from all liabilities, penalties, costs, losses, damages,
expenses, causes of action, claims, demands or judgments, including, without limitation,
reasonable attorneys' and consultants' fees arising from or in any way connected with:
A. Injury to or the death of any person, or physical damage to any property,
resulting from any act, omission, condition or other matter related to or
occurring on or about the Protected Property that is not a consequence of
an activity of the Indemnified Parties undertaken under the rights granted
to Grantee under this Conservation Easement;
B. Violations or alleged violations of, or other failure to comply with, any
federal, state or local law or regulation relating to pollutants or hazardous,
toxic or dangerous substances or materials, including without limitation
CERCLA (42 U.S.C. 9601 et seq.) and MTCA (Ch. 70.105D RCW), by
any person other than any of the Indemnified Parties, in any way affecting,
involving or relating to the Tree Area of the Protected Property, unless such
violations or alleged violations are due to the sole acts or omissions of any
of the Indemnified Parties on the Protected Property;
C. The presence or release in, on, from or about the Tree Area of the Protected
Property, at any time, of any substance now or hereafter defined, listed or
otherwise classified pursuant to any federal, state or local law, regulation
or requirement of any substance hazardous, toxic or dangerous to the air,
water or soil, or in any way harmful or threatening to human health or the
environment, unless caused solely by any of the Indemnified Parties.
X. Recordation. Grantee shall record this instrument in the Office of the Kitsap
County Auditor and may re-record it at any time.
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XI. Notices. Any notice, demand, request, consent, approval, or communication that
any Party desires or is required to give to another Party under the terms of this
Conservation Easement shall be in writing and either served at or mailed to:
Grantee: City of Port Orchard
216 Prospect Street
Port Orchard WA 98366
Grantor(s): JL Group, LLC
INSERT
CITY, WA ZIP
or to such other address as any Party from time to time shall designate by written notice
to others.
XII. General Provisions.
A. Amendment. If circumstances arise under which an amendment to this
Conservation Easement would be appropriate, the Grantor and Grantee
may jointly amend this Conservation Easement by a written instrument to
be recorded with the Kitsap County Auditor, provided that such an
amendment does not diminish the effectiveness of this Conservation
Easement in carrying out its purpose to permanently preserve and protect
in perpetuity the Tree Area of the Protected Property.
B. Controlling Law. The interpretation or performance of this Conservation
Easement shall be governed by the laws of the State of Washington and the
Laws of the United States. Any legal proceeding regarding this
Conservation Easement shall be initiated in Kitsap County Superior Court.
C. Interpretation. This Conservation Easement shall be interpreted to resolve
any ambiguities and questions of the validity of specific provisions to give
maximum effect to its preservation purpose, as stated in Section II, above.
If the Grantor has any doubt concerning the Conservation Easement,
covenants, conditions, limitations or restrictions herein contained with
respect to any particular use of the said Protected Property, it may submit
a written request to the Grantee for consideration and approval of such use.
D. Definitions. Any masculine term used in this Conservation Easement shall
include the female gender. The terms "Grantor" and "Grantee," wherever
used in this Conservation Easement, and any pronouns used in their place,
shall be held to mean and include respectively the above named Grantor,
its successors, and assigns, and the above -named Grantee, its successors
and assigns.
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E. Entire Agreement. This Conservation Easement sets forth the entire
agreement of the Parties with respect to the issues addressed herein and
supersedes all prior discussions, negotiations, understandings, or
agreements relating to these issues, all of which are merged herein.
F. No Forfeiture. Nothing in this Conservation Easement shall result in a
forfeiture or revision of Grantor's title in any respect.
G. Successors. As stated in the above recitals, all covenants, terms, conditions,
and restrictions of this Conservation Easement shall run with the land and
be binding upon, and inure to the benefit of, the Parties hereto and their
respective successors and assigns.
H. Severability. If any portion of this Conservation Easement is declared
unlawful or invalid, the remainder of the Conservation Easement shall
remain in full force and effect.
I. Authority of Signatories. The individuals executing this Conservation
Easement warrant and represent that they are duly authorized to execute
and deliver this Conservation Easement.
J. No Merger. If Grantee at some future time acquires the underlying fee title
in the Protected Property, the interest conveyed by this Deed will not merge
with fee title but will continue to exist and be managed as a separate estate.
XIII. Environmental Compliance.
A. Grantor represents and warrants that, after reasonable investigation and to
the best of Grantor's knowledge, Grantor and the Protected Property are in
compliance with all federal, state and local laws, regulations and
requirements applicable to the Protected Property and its use, including
without limitation all federal, state and local environmental laws,
regulations and requirements.
B. Grantor further represents and warrants that there has been no release,
dumping, burying, abandonment or migration from offsite onto the
Property of any substances, materials or wastes that are hazardous, toxic,
dangerous, or harmful or are designated as, or contain components that are
subject to regulation as hazardous, toxic, dangerous, or harmful by any
federal, state or local law, regulation, statute or ordinance. There is no
pending or threatened litigation affecting the Property or any portion of the
Property that will materially impair the Tree Area. No civil or criminal
proceedings have been instigated or are pending against Grantor or its
predecessors by government agencies or third parties arising out of alleged
violations of environmental laws, and neither Grantor nor its predecessors
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in interest have received any notice of violation, penalties, claims, demand
letters or other notifications relating to a breach of environmental laws.
C. Remediation. If at any time there occurs or has occurred a release in, on or
about the Property of any substances now or hereafter defined, listed or
otherwise classified pursuant to any federal, state or local law, regulation
or requirement as hazardous, toxic or dangerous to the air, water or soil, or
in any way harmful or threatening to human health or environment,
Grantor agrees to take all steps necessary to assure its containment and
remediation, including any cleanup that may be required, unless the release
was caused by the Grantee, in which case Grantee shall be responsible for
remediation.
TO HAVE AND TO HOLD unto GRANTEE CITY OF PORT ORCHARD,
its respective successors and assigns forever.
IN WITNESS WHEREOF the Parties have, by their authorized officers, set
their own hands as of the day and year first stated above.
GRANTOR:
JL Group, LLC
By:
Its:
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
I, certify that I know or have satisfactory
evidence that is the person who appeared before me, and said
person acknowledged that (he/she) signed this instrument; on oath stated that (he/she) was
authorized to execute the instrument; and acknowledged it, as the
of the , the free and voluntary act of such Party for the uses
and purposes mentioned in the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Printed Name:
NOTARY PUBLIC in and for the State of
Washington, residing at
My Commission Expires:
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ACCEPTED BY GRANTEE:
On DATE, 2023 the Port Orchard City Council adopted Resolution No. XXX authorizing
the Mayor to accept the Conservation Easement, pursuant to RCW 64.04.130.
GRANTEE:
CITY OF PORT ORCHARD
In
Robert Putaansuu, Mayor
Attest:
Brandy Wallace, City Clerk
Approved as to form:
Charlotte Archer, City Attorney
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
I, certify that I know or have satisfactory
evidence that Robert Putaansuu is the person who appeared before me, and said person
acknowledged that he signed this instrument; on oath stated that he was authorized to execute
the instrument; and acknowledged it, as the Mayor of the City of Port Orchard, the free and
voluntary act of such Party for the uses and purposes mentioned in the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Printed Name:
NOTARY PUBLIC in and for the State of
Washington, residing at
My Commission Expires:
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EXHIBIT A
Legal Description of Protected Property
For APN/Parcel ID(s): 252401-3-007-2005
Legal Description of Protected Property:
INSERT LEGAL DESCRIPTION
Subject to easements and reservations of record.
Situate in the County of Kitsap, State of Washington
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EXHIBIT B
Legal Description of Tree Area
For APN/Parcel ID(s): 252401-3-007-2005
Legal Description of Tree Area Portion of Protected Property:
INSERT LEGAL DESCRIPTION
Subject to easements and reservations of record.
Situate in the County of Kitsap, State of Washington
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EXHIBIT C
Site Plan Showing Tree and Surrounding Area Subject to Conservation Easement,
including Description of Current Size and Condition of Redwood Tree
Conservation Easement
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