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Home My WebLink AboutCA03 Motion for Summary Judgment RECEIVED 'JUN 2 7 )i,vs JEFFERSON COUNTY COMMISSIONERS Stephanie Marshall Jefferson County Hearing Examiner EXHIBI . # 010, 4 5 6 7 BEFORE THE LAND USE HEARING EXAMINER IN AND FOR JEFFERSON COUNTY 8 In re Appeal of Rathvon Shoreline 9 Conditional Use Permit, DCD File No. APPELLANT'S MOTION FOR SDP2023-00020 SUMMARY JUDGMENT II I , I. INTRODUCTION 13 This appeal challenges a Type II shoreline conditional use permit("SCUP") issued on April 14 10, 2025, for an approximately 4,000 square foot single-family residence within the shoreline 15 environment of Dabob Bay in Quilcene, Washington. The applicant is Richard Rathvon, who owns 16 the project site at 660 Twana Way(Jefferson County tax parcel 701164005). The challenged permit (File No. SDP2023-00020)may be found at Attachment A to the April 23,2025,Appeal Statement. 17 The appellants are John DiMaggio and Michelle Oliver, who reside in their home at 161 18 Twana Way in Quilcene,Washington.Appellants submitted timely comments on the proposed SCUP 19 during the public comment period on September 27, 2024. A copy of those comments may be found 20 at Exhibits A and B to the accompanying declaration of Bryan Telegin. Additional comments were 21 submitted on March 27,2025, and may be found at Exhibit C to the Telegin declaration. 22 A major issue in this appeal concerns the applicant's use of Twana Way for access to the 23 proposed single-family residence, especially during the construction process. As discussed below, 24 Twana Way is a narrow,steep,unpaved,primitive road,with some areas as narrow as seven feet wide. 25 Twana Way crosses a small stream on its way to the project site and, as discussed in appellants' 26 comments on the challenged SCUP, use of the road by heavy construction equipment threatens to Telegin Law ruc 216 6ih Street MOTION FOR SUMMARY JUDGMENT- 1 Bremerton,WA 98337 bryan@teleginlaw.com (206)453-2884 MOTION FOR SUMMARY JUDGMENT - 1 Telegin Law PLLC 216 6th Street Bremerton, WA 98337 bryan@teleginlaw.com (206) 453-2884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Stephanie Marshall Jefferson County Hearing Examiner BEFORE THE LAND USE HEARING EXAMINER IN AND FOR JEFFERSON COUNTY In re Appeal of Rathvon Shoreline Conditional Use Permit, DCD File No. SDP2023-00020 APPELLANT’S MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION This appeal challenges a Type II shoreline conditional use permit (“SCUP”) issued on April 10, 2025, for an approximately 4,000 square foot single-family residence within the shoreline environment of Dabob Bay in Quilcene, Washington. The applicant is Richard Rathvon, who owns the project site at 660 Twana Way (Jefferson County tax parcel 701164005). The challenged permit (File No. SDP2023-00020) may be found at Attachment A to the April 23, 2025, Appeal Statement. The appellants are John DiMaggio and Michelle Oliver, who reside in their home at 161 Twana Way in Quilcene, Washington. Appellants submitted timely comments on the proposed SCUP during the public comment period on September 27, 2024. A copy of those comments may be found at Exhibits A and B to the accompanying declaration of Bryan Telegin. Additional comments were submitted on March 27, 2025, and may be found at Exhibit C to the Telegin declaration. A major issue in this appeal concerns the applicant’s use of Twana Way for access to the proposed single-family residence, especially during the construction process. As discussed below, Twana Way is a narrow, steep, unpaved, primitive road, with some areas as narrow as seven feet wide. Twana Way crosses a small stream on its way to the project site and, as discussed in appellants’ comments on the challenged SCUP, use of the road by heavy construction equipment threatens to MOTION FOR SUMMARY JUDGMENT - 2 Telegin Law PLLC 216 6th Street Bremerton, WA 98337 bryan@teleginlaw.com (206) 453-2884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 increase sediment-laden runoff to Dabob Bay and to degrade the shoreline environment. In its original and amended staff reports, the County determined that this issue is “outside the scope of the shoreline application” because the road itself is “beyond the limits of shoreline jurisdiction.” See Telegin Decl., Ex. D at 4 (original staff report). See also id., Ex. E at 4 (amended staff report; same). Pursuant to Rule 3.3 of the Jefferson County Hearing Examiner Rules of Procedure,1 appellants now seek summary judgment that the County erred in failing to evaluate potential impacts to the shoreline environment caused by use of Twana Way during the construction process. Evaluation of such impacts is within the scope of the County’s duties under the Shoreline Management Act (“SMA”), RCW chapter 90.58. Appellants request reversal of the challenged SCUP and remand to the Jefferson County Department of Community Development (“DCD”) with instructions that this issue must be evaluated by County permit staff prior to issuance of the SCUP. II. EVIDENCE RELIED UPON This motion relies on the accompanying declaration of Bryan Telegin (“Telegin Decl.”). II. OVERVIEW OF THE CHALLENGED PERMIT The Rathvon project site is located on the shoreline of Dabob Bay, in an area known to provide ecologically significant habitat for Hood Canal summer chum salmon and Puget Sound Chinook, both of which are listed as threatened under the federal Endangered Species Act. Telegin Decl., Ex. A at 1. The upland portions of the project site have a shoreline environmental designation of “Natural” under Jefferson County’s Shoreline Master Program (“SMP”), chapter 18.25 of the Jefferson County Code (“JCC”), which the County adopted pursuant to Washington’s Shoreline Management Act (“SMA”), RCW chapter 90.58.2 The purpose of the “Natural” shore designation is to “protect[] from harm or 1 Rule 3.3(a) provides, in relevant part, that “[a] principal party may request . . . summary judgement . . . through a timely pre-hearing motion,” and that “[e]xcept as otherwise provided in these Rules, pre-hearing motions must be filed in writing by any principal party at least 20 days prior to the hearing.” 2 The text of the Jefferson County Code is available online at https://www.codepublishing.com/WA/JeffersonCounty/#!/JeffersonCounty18/JeffersonCounty18.ht ml. MOTION FOR SUMMARY JUDGMENT - 3 Telegin Law PLLC 216 6th Street Bremerton, WA 98337 bryan@teleginlaw.com (206) 453-2884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 adverse impact shoreline areas that are intact, have minimally degraded functions and processes, or are relatively free of human influence.” JCC 18.25.210(3)(c)(i). The aquatic environment adjacent to the Rathvon parcel has a shoreline environmental designation under the SMA of “Priority Aquatic,” the purpose of which is to “protect[] to the highest degree possible and, where feasible, restores waters and their underlying bedlands deemed vital for salmon and shellfish.” JCC 18.25.210(3)(a)(i). This area is also known as providing premiere shellfish beds, with Taylor Shellfish located immediately across the bay and Rockport Oyster just over a mile to the north. Telegin Decl., Ex. A at 1. Access to the project site is via Twana Way, a narrow, steep, unpaved, primitive road, known to area residents as the “goat trail.” Id. at 2. The surface of Twana Way is only eight to nine feet wide, with some areas as narrow as seven feet. Id. To accommodate his use of the road, the applicant (Mr. Rathvon) previously proposed an extensive road improvement or renovation plan, which he represented to other property owners along Twana Way as being necessary to enable safe and reliable access for service and emergency vehicles. Id. at 1–2. The conditions of Twana Way are so primitive that it is difficult even for everyday vehicles to navigate, let alone large emergency response vehicles, service and delivery vehicles, and construction- related vehicles hauling building materials and equipment to the project site. Id. The road is especially difficult for vehicles to navigate traveling uphill, as this narrow, primitive road rises more than 600 feet over an eighth of a mile, immediately adjacent to a steep embankment leading down to Dabob Bay. Id. Below are several photographs of Twana Way from appellants’ September 27, 2024, comments on the challenged SCUP. MOTION FOR SUMMARY JUDGMENT - 4 Telegin Law PLLC 216 6th Street Bremerton, WA 98337 bryan@teleginlaw.com (206) 453-2884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Source: Telegin Decl., Ex. A at 2–3 In addition to being narrow, steep, and primitive, Twana Way crosses a small stream on its way to the project site. Telegin Decl., Ex. G (showing stream and road crossing). Downstream of this crossing, the stream discharges to Dabob Bay. Id. This primitive road is also located within a County- mapped landslide hazard area. Id., Ex. H. The image below—taken from a site survey submitted by the applicant—depicts where Twana Way crosses the stream relative to the project site. In this image, the project site is outlined in red. The blue line represents the stream as it travels downhill toward Dabob Bay. Twana Way is highlighted in purple. The red circle shows where Twana Way crosses the stream, approximately 600 from Dabob Bay, and approximately 400 feet from the shoreline area, according to the scale provided on the survey. Source: Telegin Decl., Ex. G MOTION FOR SUMMARY JUDGMENT - 5 Telegin Law PLLC 216 6th Street Bremerton, WA 98337 bryan@teleginlaw.com (206) 453-2884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 In their September 27, 2024, comments on the challenged SCUP, appellants observed that the application materials failed to include any evaluation of how use of Twana Way during the construction process might affect the shoreline environment. Telegin Decl., Ex. A at 5. Appellants also submitted a letter report by David S. Parks, Principal Geologist at Crescent Environmental, who opined based on his professional experience as a geologist that “[u]se of the road by heavy vehicles such as loaded concrete trucks has the potential to cause surface erosion and sediment to enter the adjacent stream, which may then transport the sediment downstream to Dabob Bay.” Id., Ex. B at 3. For this reason, Mr. Parks explained that the application materials “should have included a slope stability and surface erosion assessment of the access road (Twana Way) leading to the project site.” Id. In Mr. Parks’ words: The scope of the geologic assessment completed by the Stratum Group should have included a slope stability and surface erosion assessment of the access road (Twana Way) leading to the project site. Twana Way is a primitive road on a steep slope leading down to Dabob Bay. Portions of the road are within the Critical Areas Buffer of the adjacent stream and will be used by heavy vehicles to deliver equipment and supplies before, during and after project construction. Use of the road by heavy vehicles such as loaded concrete trucks has the potential to cause surface erosion and sediment to enter the adjacent stream, which may then transport the sediment downstream to Dabob Bay. This primitive road should be assessed to determine if it can bear the heavy loads anticipated during truck use without failing and delivering sediment to downstream waters. Id. at 3. Later, on January 30, 2024, the applicant submitted an updated geologic assessment. However, like the original geologic assessment for this project, the amended report similarly failed to evaluate impacts on the Dabob Bay shoreline environment caused by use of Twana Way as the construction haul route for this project. As appellants explained in their March 27, 2025, comment letter: Regrettably, the Applicant’s updated geologic hazard assessment still does not include a slope stability or surface erosion assessment of Twana Way. While the new report contains passing references to Twana Way, there is no assessment of the impact of increased heavy equipment and construction-related traffic on the road. Nor does the new report appear to evaluate any portion of the road outside the MOTION FOR SUMMARY JUDGMENT - 6 Telegin Law PLLC 216 6th Street Bremerton, WA 98337 bryan@teleginlaw.com (206) 453-2884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 project site, despite that construction equipment and construction- related traffic will need to travel the entire length of Twana Way to reach the site of the proposed single family residence. Telegin Decl., Ex. C at 1. Appellants believe that it is undisputed that the applicant never submitted a report to DCD during the course of permit review evaluating the stability of Twana Way or the potential for heavy construction traffic on the road to adversely impact the shoreline environment of Dabob Bay. Nevertheless, the County approved the SCUP on April 10, 2025. The staff report accompanying the SCUP states that these issues were never evaluated as part of the County’s permit review because the Twana Way is located “beyond the limits of shoreline jurisdiction”—i.e., beyond the 200-foot shoreline area regulated by the SMA and the County’s Shoreline Master Program. See Telegin Decl., Ex. D at 4 (original staff report, stating: “The current application is to construct a new single-family residence within shoreline jurisdiction. Evaluation of Twana Way, which is located beyond the limits of shoreline jurisdiction, is outside the scope of the shoreline application.”) (emphasis added); id., Ex. E at 4 (amended staff report; same). For the reasons below, the County erred as a matter of law in concluding that impacts to the shoreline environment arising from use of Twana Way are outside the scope of the County’s permit review for a SCUP. The proper remedy is to reverse the SCUP and remand for evaluation of this issue prior to permit issuance III. ARGUMENT The Shoreline Management Act, RCW 90.58.010 et seq., regulates development within 200 feet landward of most lakes, rivers, and marine waters of the State of Washinton, including those of Hood Canal where Dabob Bay is located. See RCW 90.58.030(2)(d) & (e). The SMA declares that Washington’s shorelines “are among the most valuable and fragile of its natural resources.” RCW 90.58.020. To protect these valuable and fragile resources, the SMA seeks, inter alia, to “[p]reserve the natural character of the shoreline” and to “[p]rotect the resources and ecology of the shoreline.” Id. The Washington Court of Appeals has observed that “[t]he Shoreline Management Act of 1971 . . . though dealing with a limited area of the environment, is as vigorous as [the State Environmental MOTION FOR SUMMARY JUDGMENT - 7 Telegin Law PLLC 216 6th Street Bremerton, WA 98337 bryan@teleginlaw.com (206) 453-2884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Policy Act] in declaring a policy aimed at the preservation of our natural resources.” Merkel v. Port of Brownsville, 8 Wn. App. 844, 848–49 (1973). The SMA itself states that the Act is to be “liberally construed to give full effect to the objectives and purposes for which it was enacted,” including protection of the shoreline environment. RCW 90.58.900. To these ends, the SMA calls for cities and counties to adopt so-called “shoreline master programs” to regulate development in the 200-foot shoreline area, RCW 90.58.080, and for shoreline permits to be consistent with the protective policies of both the SMA and the local master program, RCW 90.58.140. Like the SMA, the County’s shoreline master program is to be “liberally construed to give full effect to its goals, policies and regulations.” JCC 18.25.080. This means that “the interpretation of [the master program] shall not only be based on the actual words and phrases used in it, but also by taking its deemed or stated purpose into account. Liberal construction means an interpretation that tends to effectuate the spirit and purpose of the writing.” Id. In this case, the County’s position—that impacts on the shoreline environment arising from use of Twana Way during the construction process is beyond its scope of review for a SCUP—clearly represents an impermissible narrow reading of the SMA and the County’s own master program. This is so, first of all, under the plain language of the master program itself. Under the County’s shoreline master program, the construction of a single-family residence in the “natural” shoreline environmental designation requires the issuance of a shoreline conditional use permit. JCC 18.25.220 (Table 19.25.220). In turn, to obtain such a permit, the applicant must demonstrate, inter alia, that the proposal “will not cause adverse effects to the shoreline environment in which it is to be located,” and that “[t]he public interest suffers no substantial detrimental effect.” JCC 18.25.590(2)(d–e). The County’s position is at odds with these permit criteria, insofar as it ignores impacts arising from an integral part of the project—namely, moving construction equipment and supplies to the project site. Expanding on the broad scope of review for a SCUP, the Count’s master program similarly provides that “[a]ll shoreline use and development should be carried out in a manner that avoids and minimizes adverse impacts on the shoreline environment.” JCC 18.25.270(1)(a). To determine if a MOTION FOR SUMMARY JUDGMENT - 8 Telegin Law PLLC 216 6th Street Bremerton, WA 98337 bryan@teleginlaw.com (206) 453-2884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 proposal will, or will not, result in adverse effects to the shoreline environment, the County must consider direct, indirect, and cumulative effects, as well as immediate and long-term effects. JCC 18.25.270(1)(b)(iii–v). The County must consider “[e]ffects that occur on site and effects that may occur off site.” Id. at (ii) (emphasis added). Finally, the County must consider potential adverse effects caused not just by the operation of the intended use, but also its construction. See, e.g., JCC 18.25.320(1)(a) (providing that “[t]he location, construction, operation, and maintenance of all shoreline uses and developments should maintain or enhance the quantity and quality of surface and ground water over the long term.” (emphasis added); id. at (2) (providing that “[a]ll shoreline uses and activities shall use effective erosion control methods during both project construction and operation.”). These broad policies and requirements require the County to look at every proposal in its entirety, and to determine if any aspect of it will result in adverse impacts to the shoreline environment. Here, where an integral part of the project is to move construction equipment and materials to the project site via Twana Way, there is no basis for the County to ignore impacts to the shoreline environment caused by that use of the road. The plain language of the County’s shoreline master program calls for a broad review of every proposal, including not just its operation, but also its construction. The County’s position that it may ignore impacts arising from the use of Twana Way represents an impermissible narrow reading of the SMA and the master program, in violation of RCW 90.58.900 and JCC 18.25.080. Regarding the County’s position that impacts arising from the use of Twana Way may be ignored specifically because the road is outside the 200-food “shoreline jurisdiction” under the SMA, that, too, is in error. Although the SMA only regulates developments occurring within 200 feet of the shoreline—an area commonly referred to as “shoreline jurisdiction”3—once a project is found to be located within 200 feet of the shoreline, all elements of the project must be evaluated to determine if 3 See, e.g., NCNG, LLC v. Clark County, 31 Wn. App. 2d 1043, 2014 WL 3043959, *5 (June 18, 2024) (explaining: “The County's shoreline jurisdiction includes t]hose lands extending two hundred (200) feet in all directions as measured on a horizontal plane from the ordinary high water mark (OHWM)”) (internal quotations and backets omitted). MOTION FOR SUMMARY JUDGMENT - 9 Telegin Law PLLC 216 6th Street Bremerton, WA 98337 bryan@teleginlaw.com (206) 453-2884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 they will adversely affect the shoreline. This is true even of elements of the project located outside the shoreline area (i.e., more than 200 feet from the shoreline). For example, in Weyerhaeuser v. King County, 91 Wn.2d 721 (1979), the Washington Supreme Court held that when a project is located within the shoreline area, then related uses that are “adjacent to the shoreline” (i.e., outside the 200-foot shoreline jurisdiction area) “should be considered when taking any action under the SMA.” Weyerhaeuser, 91 Wn.2d at 736. In Merkel v. Port of Brownsville, 8 Wn. App. 844 (1973), the Washington Court of Appeals enjoined the clearing and grading of lands outside the 200-foot shoreline jurisdiction area, specifically because that clearing and grading work was related to work within the shoreline area that had yet to be permitted. See Merkel, 91 Wn. App. at 850–51. The court in Merkel reasoned that “[i]rreparable damage would flow from allowing any portion of this project to proceed without full compliance with the permit requirements of the SMA.” Id. at 851–52 (emphasis added). In turn, the Shorelines Hearings Board—the state agency charged under the SMA with hearing administrative appeals of local shoreline permit decisions—has consistently held that, under the SMA, “[a] shoreline permit application must describe the full, unified, and integrated physical project, both within and without of the shoreline jurisdiction,” and that “[t]his allows the local government to review the project to determine to what extent those portions of the project outside the [shoreline area] may adversely impact the shoreline of the state.” Citizens to Stop the SR 169 Asphalt Plant v. King County, SHB No. 22-007, Findings of Fact, Conclusions of Law, and Order, 2023 WL 2977069, * (April 12, 2023) (emphasis added; citing Laccinole v. City of Bellevue, SHB 03-025 (March 10, 2004), Merkel, supra, 8 Wn. App. 850-51, and Preserve Our Islands v. King Cnty., SHB No. 04-009 (Nov. 3, 2004)). In this case, the “full, unified, and integrated physical project” includes not just the home that the applicant proposes to construct, but also the applicant’s use of Twana Way as a construction haul route. It is true that Twana Way is located outside the 200-foot shoreline area directly regulated under the SMA. But that alone is not a valid basis for ignoring impacts that may clearly damage and degrade the shoreline environment, such as generating increased sediment-laden runoff into the creek and bay through use of the Twana Way for moving heavy construction equipment. Under the SMA, once a MOTION FOR SUMMARY JUDGMENT - 10 Telegin Law PLLC 216 6th Street Bremerton, WA 98337 bryan@teleginlaw.com (206) 453-2884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 project is found to be located within the 200-foot shoreline area, all aspects of the project must then be evaluated for conformance with the policies and requirements of the SMA and the County’s own master program, including that the proposal not result in “adverse effects to the shoreline environment.” JCC 18.25.590(2)(d). Here, Jefferson County was specifically put on notice of this issue during the public comment period. The County received information from a professional geologist warning that use of the road as a construction haul route must be evaluated to prevent harm to the shoreline environment. See Telegin Decl., Ex. B at 3. The County erred as a matter of law when it determined that any and all impacts arising from the use of Twana Way as a construction haul route are beyond its jurisdiction under the SMA, simply because the road is located outside the 200-foot shoreline area. That is not a valid basis for screening such impacts from its permit review either under the text of the County’s shoreline master program, or the SMA itself. The County erred in failing to evaluate these issues prior to issuance of the SCUP. The appropriate remedy is to reverse the SCUP approval and remand with directions to evaluate this issue prior to permit issuance. IV. CONCLUSION For the reasons above, appellants John DiMaggio and Michelle Oliver respectfully request that the Examiner reverse the County’s issuance of SCUP No. SDP2023-00020. The Examiner should remand the permit to DCD with instructions that it must evaluate impacts to the shoreline environment caused by use of Twana Way as a construction haul route. Dated this 25th day of June, 2025. TELEGIN LAW PLLC By: Bryan Telegin, WSBA No. 46686 Counsel for Appellants John DiMaggio and Michelle Oliver MOTION FOR SUMMARY JUDGMENT - 11 Telegin Law PLLC 216 6th Street Bremerton, WA 98337 bryan@teleginlaw.com (206) 453-2884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF SERVICE I hereby certify that on June 27, 2025, I caused to be served a true and correct copy of the foregoing APPELLANT’S MOTION FOR SUMMARY JUDGMENT and DECLARATION OF BRYAN TELEGIN IN SUPPORT OF APPELLANT’S MOTION FOR SUMMARY JUDGMENT on each of the persons and in the manners listed below: Jefferson County Department of Community Development Attn: Greg Ballard 621 Sheridan Street Port Townsend, WA 98368 [X] Personal Delivery [X] Via E-mail to GBallard@co.jefferson.wa.us [X] Via USPS Priority Mail on 6/25/2025 Patrick Mullaney Schwabe, Williamson & Wyatt, P.C. 1420 5th Ave Ste 3400 Seattle, WA 98101-2339 Attorney for Applicant Richard Rathvon [X] Personal Delivery [X] Via E-mail to PMullaney@schwabe.com [X] Via USPS Priority Mail on 6/25/2025 Dated: June 27, 2025 TELEGIN LAW PLLC By: Bryan Telegin