HomeMy WebLinkAboutCA05 Jefferson County's Response brief in Opposition to Appellant's Motion for Summary Judgment R EIVED
JUL 0 7 2025
JEFFER ON COUNTY
COM ISSIONERS
1
2 EXHIBIT # y
3 Stephanie Marshall
Jefferson County Hearing Examiner
4
5
6 BEFORE THE LAND USE HEARING EXAMINER
7 IN AND FOR JEFFERSON COUNTY
8
9 In re Appeal of Rathvon Shoreline JEFFERSON COUNTY'S
Conditional Use Permit, DCD File RESPONSE BRIEF IN
10 No. SPD2023-00020 OPPOSITION TO APPELLANT'S
11 MOTION FOR SUMMARY
JUDGMENT
12
13
14 I. INTRODUCTION
15 COMES NOW, Respondent, Jefferson County Department of Community
16 Development (DCD), by and through its attorney of record, Ariel Speser, Civil
17 Deputy Prosecuting Attorney, and provides Respondent's Opposition to Appellant's
18 Motion for Summary Judgment.
19 II. RELIEF REQUESTED
20 Respondent Jefferson County respectfully requests that this Hearing
21 Examiner deny Appellant's Motion for Summary Judgment and allow the
22 scheduled Open Record Hearing currently scheduled for July 17, 2025, to proceed.
23 III. STATEMENT OF THE FACTS
24 As Appellant's Motion for Summary Judgment points out, this appeal
25 challenges a Type II shoreline conditional use permit (SCUP) issued on April 10,
26 2025, for a single-family residence within the shoreline environment of Dabob Bay
27 in Quilcene, Washington. Appellant's Brief at 1. The applicant is Richard Rathvon,
28
JEFFERSON COUNTY'S RESPONSE BRIEF ` % Jefferson County Prosecuting Attorney
IN OPPOSITION TO APPELLANT'S 1 1820 Jefferson Street/P.O. Box 1220
MOTION FOR SUMMARY JUDGMENT Port Townsend, WA 98368
Page 1 of 11 ssv .J 360-385-9180
1 who owns the project site at 660 Twana Way. Id. The appellants are neighbors who
2 reside at 161 Twana Way in Quilcene, Washington. Id.
3 A major issue in the Appeal, and at issue in the Motion for Summary
4 Judgment, is the matter of using Twana Way — a narrow, primitive road — during
5 the construction process and whether it should have been further evaluated for
6 impacts to the shoreline environment by the County permit staff for prior to
7 issuance of the SCUP. Id. at 1-2.
8 Appellants submitted timely comments on the proposed SCUP during the
9 public comment period on September 27, 2024. Id. at 5. Appellants also submitted
10 a letter report by David S. Parks, Principal Geologist at Crescent Environmental
11 (Crescent). Id. at 5.
12 Attached hereto is the original geological report prepared by Stratum Group
13 (dated February 15, 2022) as Respondent's Exhibit I.
14 Based on the geotechnical assessment prepared by Crescent, the applicant
15 submitted responses prepared by his qualified professional (received October 11,
16 2024), which includes the preliminary response from Stratum Group to the
17 Crescent comments and is attached hereto as Respondent's Exhibit J (DCD's
18 Exhibit 07), including Stratum's initial responses to Crescent's Comments.
19 Subsequent to this, DCD also requested additional information. Amended
20 Staff Report, Appellant's Exhibit E, at 4. A part of the additional information
21 requested by DCD included a cumulative impacts assessment by a biologist. Also
22 included with the additional information requested by the County were 4 questions
23 addressed specifically to Stratum Group requesting formal responses to the
24 comments received from Crescent during the notice of application, in response to
25 which Stratum Group prepared a Geology Hazard Assessment Update Report
26 (dated November 14, 2024), and included a more formal response to the County's
27 request for additional information, which is attached hereto as Respondent's
28 Exhibit K (DCD's Exhibit 08). Id.
JEFFERSON COUNTY'S RESPONSE BRIEF eF` ` % Jefferson County Prosecuting Attorney
IN OPPOSITION TO APPELLANT'S ` 1820 Jefferson Street/P.O. Box 1220
MOTION FOR SUMMARY JUDGMENT Port Townsend,WA 98368
Page 2 of 11 ``1Syy ��� 360-385-9180
1 Finally, the Applicant also submitted a Geology Hazard Assessment for
2 Twana Way Improvements (dated February 25, 2025). A copy of the Geology
3 Hazard Assessment for Twana Way Improvements is attached hereto as
4 Respondent's Exhibit L (DCD's Exhibit 09). Since road improvements would
5 be outside of shoreline jurisdiction, this report was not used for permitting of the
6 residence but was used to add conditions pertaining to potential future
7 development into the shoreline permit. Staff Report at 4.
8 Appellants submitted additional comments on March 27, 2025. Appellant's
9 Brief at 5-6.
10 On April 10, 2025, DCD issued a Staff Report with Proposed Findings,
11 Conclusions, and Recommendations for approval of the SCUP with conditions
12 (emphasis added). DCD's Staff Report states that, "The applicants have submitted
13 a geological report, a stream report, and a cumulative impacts report, and all
14 development would be located outside of the stream buffer." Staff Report at 1. The
15 Staff Report also notes:
16
17 The majority of comments DCD received pertained to potential impacts
to Twana Way during construction. This permit is a shoreline
18 conditional use application for residential development on property
located 660 Twana Way that incorporates a stormwater permit to
19 construct a parking area on the property, just outside of shoreline
20 jurisdiction. Road improvements are beyond the scope of this proposal
and this permit for residential development and does not authorize any
21 modifications to Twana Way.
22 Id. at 2-3.
23 Staff Comments included in the Staff Report reiterate that, "The current
24 application is to construct a new single-family residence within shoreline
25 jurisdiction. Evaluation of Twana Way, which is located beyond the limits of
26 shoreline jurisdiction, is outside the scope of the shoreline application. The
27 shoreline permit has a condition clarifying that the shoreline permit does not
28 authorize any work on Twana Way." Id. at 4.
JEFFERSON COUNTY'S RESPONSE BRIEF ,�¢5°N coo Jefferson County Prosecuting Attorney
IN OPPOSITION TO APPELLANT'S w { 1820 Jefferson Street/P.O. Box 1220
MOTION FOR SUMMARY JUDGMENT Port Townsend,WA 98368
Page 3 of 11 .-so
i9so 360-385-9180
1 In the Staff Report's Recommended Conditions for Shoreline Permit, DCD
2 includes several conditions for approval of the SCUP, including but not limited to
3 multiple mitigation measures such as:
4 • #7 "This permit does not authorize any modifications to the existing access
5 road. It is the responsibility of the permittee to obtain any required permits."
6 (Emphasis added);
7 • #9 Compliance with the 2019 Ecology Stormwater Management Manual for
8 Western Washington and stormwater plan prepared by Evergreen
9 Engineering Services (dated June 24, 2024); and
10 • #10 Compliance with all conclusions and recommendations in the Geological
11 Hazard Assessment Report and Update prepared by Stratum Group.
12 Id. at 8-9.
13 It is undisputed that Twana Way is located beyond the limits of shoreline
14 jurisdiction (i.e., beyond the 200-foot shoreline area regulated by the Shoreline
15 Management Act and the County's Shoreline Master Program). Appellant's Brief at
16 6.
17 Appellants timely appealed the SCUP on April 23, 2025. Id. at 1. Appellants
18 also submitted a Motion for Summary Judgment dated June 25, 2025, with a
19 declaration of service dated June 27, 2025.
20 Appellants request reversal of the challenged SCUP and remand to DCD
21 with instructions that the issue of Twana Way's use during construction be further
22 evaluated by County permit staff prior to issuance of the SCUP. Id. at 2.
23 IV. RELEVANT PROCEDURAL FACTS
24 Under Jefferson County Code Chapter 2.30 and the Jefferson County
25 Hearing Examiner Rules of Procedure (10/19/2019), pre-hearing motions are
26 permitted, provided they are filed 20 days prior to the hearing. Rule 3.3(a). Rule
27 1.12 Service states that service shall be complete upon the third day following the
28 day upon which they are placed in the mail, unless a weekend or holiday.
JEFFERSON COUNTY'S RESPONSE BRIEF ��s°N r,o� Jefferson County Prosecuting Attorney
IN OPPOSITION TO APPELLANT'S 1` 1820 Jefferson Street/P.O. Box 1220
MOTION FOR SUMMARY JUDGMENT Port Townsend,WA 98368
Page 4 of 11 Isyi y°,°� 360-385-9180
1 Appellant's Motion for Summary Judgment and Supporting Declaration are
2 dated June 25, 2025, which would have been timely; however, the certificate of
3 service shows the pleadings were not served until June 27, 2025.
4 The Hearing Examiner Rules of Procedure permit consideration of late
5 filings or responses upon a showing of good cause. Rule 3.3(c).
6 V. STATEMENT OF ISSUE
7 A. Has Appellant shown good cause for consideration of late filing of
8 Summary Judgment Motion?
9 B. Should Summary Judgment be granted where there are genuine issues
10 of material fact?
11 VI. EVIDENCE RELIED UPON
12 Jefferson County's Response Brief in Opposition to Appellant's Motion for
13 Summary Judgment is supported by the accompanying declaration of Attorney
14 Ariel Speser with attached exhibits, and incorporates by reference all those
15 Exhibits attached to the Appellant's Supporting Declaration by Attorney Bryan
16 Telegin, including but not limited to the DCD Staff Report (Appellant's Exhibit E),
17 as well as all the pleadings and records on file in this case available through the
18 Hearing Examiner's Office at https://www.co.jefferson.wa.us/1877/071725-Rathvon-
19 Shoreline.
20 VII. AUTHORITY AND ARGUMENT
21 A. Appellant's Motion for Summary Judgment should be denied
22 on procedural grounds.
23 The Motion for Summary Judgment is not timely pursuant to Rule 3.3(a).
24 Jefferson County respectfully request that the Hearing Examiner deny Appellant's
25 Motion for Summary Judgment for failing to meet procedural requirements and
26 proceed with the open record hearing as contemplated by the appeal process. Good
27 cause cannot be found in this case as Appellant is in the best position to provide
28 timely notice and opportunity to the parties. Here, there does not appear good
JEFFERSON COUNTY'S RESPONSE BRIEF �� --'4 `o, Jefferson County Prosecuting Attorney
IN OPPOSITION TO APPELLANT'S i < 1820 Jefferson Street/P.O. Box 1220
MOTION FOR SUMMARY JUDGMENT Port Townsend,WA 98368
Page 5 of 11 �sy ��� 360-385-9180
1 cause to deny Jefferson County permitting staff the opportunity to explain, based
2 on their expertise, why the experts, reports, and findings are consistent with
3 Jefferson County Code and the multiple conditions included in the SCUP are
4 sufficient compliance with chapter 18.25 JCC and the County's duties under the
5 Shoreline Management Act (SMA), chapter 90.58 RCW.
6 B. Appellant's Motion for Summary Judgment does not meet
i standard because there are genuine issues of material fact and
8 therefore should be dismissed.
9 Summary judgment is appropriate where the administrative record shows
10 there is no genuine issue of material fact and the moving party is entitled to
11 judgment as a matter of law. CR 56(c); City of Bonney Lake v. Kanany, 185 Wn.
12 App. 309, 314, 340 P.3d 965 (2014) (published in part). Generally, courts view all
13 facts and inferences in the light most favorable to the defendant or non-moving
14 party. See VanderStoep v. Guthrie, 200 Wn. App. 507, 519-520, 402 P.3d 883
15 (2017), review denied, 189 Wn.2d 1041 (2018).
16 Appellants cannot meet the threshold standard for summary judgment.
17 "Summary judgment is appropriate if 'the pleadings, depositions, answers to
18 interrogatories, and admissions on file, together with the affidavits, if any, show
19 that there is no genuine issue as to any material fact and that the moving party is
20 entitled to a judgment as a matter of law."' Brown v. Snohomish Cty. Physicians
21 Corp., 120 Wn. 2d 747, 752, 845 P.2d 334 (1993) (quoting CR 56). A defendant
22 moving for summary judgment meets its "initial burden" by "`showing'— that is,
23 pointing out to the [trial] court—that there is an absence of evidence to support the
24 nonmoving party's case."' Young v. Key Pharm., Inc., 112 Wn. 2d 216, 225 n.1, 770
25 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, (1986)).
26 Appellant's Motion for Summary Judgment does not meet the standard for
27 the reasons below and should be dismissed.
28 1. Genuine issue of material fact exists.
JEFFERSON COUNTY'S RESPONSE BRIEF t�s" `� , Jefferson County Prosecuting Attorney
IN OPPOSITION TO APPELLANT'S W 1820 Jefferson Street/P.O. Box 1220
MOTION FOR SUMMARY JUDGMENT Port Townsend,WA 98368
Page 6 of 11 "syo No•o� 360-385-9180
1 In ruling on a motion for summary judgment, the court's function is to
2 determine whether a genuine issue of material fact exists, not to resolve any
3 existing factual issue. McConiga v. Riches, 40 Wn. App. 532, 536, 700 P.2d 331, 335
4 (1985).
5 This case is not appropriate for Summary Judgment because genuine issues
6 of material fact exist, requiring a hearing and deliberation by the Hearing
7 Examiner. This is true irrespective of whether Appellants provide compelling
8 arguments supporting their position in the case — that is not the standard.
9 Appellant's Motion for Summary Judgment is undoubtedly well-crafted, but even
1 o so, it should not be allowed to circumvent the parties' right to a full hearing on the
1 merits of the case.
12 Jefferson County takes the position that there are genuine issues of material
13 fact, differing interpretations of the Shoreline Management Act and Jefferson
14 County Code, and substantive questions regarding which experts and reports
15 should be given more weight. These are issues for the Hearing Examiner to decide
16 on the merits of the case after hearing all of the witness testimony, reviewing all of
17 the evidence, and taking into account the whole record on appeal.
18 Here, the Appellants contend the County is "required" but failed to
19 satisfactorily review for potential environmental impacts on the Dabob Bay
20 shoreline environment caused by the use of Twana Way as the construction haul
21 route for this project, even though the road is admittedly outside of the shoreline
22 jurisdiction.
23 Here, the County contends it is not required to review endless and
24 speculative potential impacts outside of the shoreline jurisdiction, but here did due
25 diligence in satisfactorily reviewing, considering, and accounting for the potential
26 adverse impacts outside of the shoreline area caused by the use of Twana Way as
27 the construction haul route for this project, as evidenced by requesting additional
28 information, reviewing additional reports, and ultimately only proposing approval
JEFFERSON COUNTY'S RESPONSE BRIEF \ Jefferson County Prosecuting Attorney
IN OPPOSITION TO APPELLANT'S ` 1820 Jefferson Street/P.O. Box 1220
MOTION FOR SUMMARY JUDGMENT Port Townsend,WA 98368
Page 7 of 11 360-385-9180
1 of the permit with conditions. Importantly, the permit conditions require the
2 applicant comply with stormwater management practices and obtain additional
3 permitting as necessary to mitigate the potential adverse impacts caused by the
4 use of Twana Way. To the County, it appears there certainly is a genuine issue of
5 material fact regarding whether the requested review was done, and, if so, to what
6 extent was it satisfactory?
7 2. Open record hearing requires there to be a hearing.
8 The underlying SCUP, issued pursuant to 18.40.270(2) JCC, is subject to an open
9 record hearing. See DCD Exhibit 11, page 2 of 4, also attached hereto as
10 Respondent's Exhibit M.
11 RCW 36.70B.020(3) defines open record hearings on project permit
12 applications that the hearing examiner may conduct:
13 "Open record hearing" means a hearing, conducted by a single hearing
1 4 body or officer authorized by the local government to conduct such
hearings, that creates the local government's record through testimony
15 and submission of evidence and information, under procedures
1 prescribed by the local government by ordinance or resolution. An open
record hearing may be held prior to a local government's decision on a
17 project permit to be known as an "open record predecision hearing." An
open record hearing may be held on an appeal, to be known as an
18 "open record appeal hearing," if no open record predecision hearing has
19 been held on the project permit.
20 RCW 36.70B.020(3)
21 Jefferson County Hearing Examiner Rules of Procedure, Rule 5.1(a), defines the
22 rights of parties to the record, including when parties to an Open-Record Hearing:
23 Open Record Hearings. Every party of record shall have the
24 right to present evidence and testimony at open record hearings. The
right of parties of record to cross-examine, object, and submit motions
25 shall be at the discretion of the examiner during public hearings. The
examiner may impose reasonable limitation on the number of
26 witnesses heard and the length of their testimony. At the examiner' s
27 discretion, irrelevant or unduly repetitious testimony may be excluded
or bypassed. Disruptive persons may be excluded from the public
28 hearing, consistent with applicable county, state, and federal laws.
JEFFERSON COUNTY'S RESPONSE BRIEF ��5° 'oe, Jefferson County Prosecuting Attorney
IN OPPOSITION TO APPELLANT'S ` 1820 Jefferson Street/P.O.Box 1220
MOTION FOR SUMMARY JUDGMENT Port Townsend,WA 98368
Page 8 of I1 �9sM;'N -coy 360-385-9180
1 Rule 5.1(a).
2 Allowing the open record hearing seems particularly reasonable in light of
3 case law precedent (albeit certainly not unchecked) granting deference to a county's
4 interpretation of its own code. See generally Durland v. San Juan Cty., 174 Wn.
5 App. 1, 25, 298 P.3d 757, 769 (2012) (citing Cowiche Canyon Conservancy v. Bosley,
6 118 Wn.2d 801, 813-14, 828 P.2d 549 (1992)). In case involving the Growth
7 Management Act (GMA), Washington State Court of Appeals, Division II, found that a court
8 reviewing a decision of a growth management hearings board concerning a local planning
9 jurisdiction's compliance with the Growth Management Act (chapter 36.70A RCW) will defer
10 to the local jurisdiction's planning action unless the action is clearly erroneous. Brinnon Grp. v.
11 Jefferson County, 159 Wn. App. 446, 245 P.3d 789, (2011). In another GMA case, the
12 court similarly found that, "While we are mindful that this deference ends when it
13 is shown that a county's actions are in fact a `clearly erroneous' application of the
14 GMA, we should give effect to the legislature's explicitly stated intent to grant
15 deference to county planning decisions." Quadrant Corp. v. State Growth Mgmt.
16 Hearings Bd., 154 Wn.2d 224, 238, 110 P.3d 1132, 1139 (2005).
17 Jefferson County permitting staff have spent countless hours reviewing the
18 materials submitted by both the Applicant and the Appellant — as well as all other
19 comments — and reviewing them "against all applicable sections of the JCC,
20 including the SMP," and complied a detailed Staff Report with Proposed Findings
21 intended to show compliance with shoreline and stormwater permitting
22 requirements. Staff Report at 3. To determine the case at this juncture is to
23 circumvent the appeal process by denying parties the right to an open record
24 hearing—to give testimony, to present evidence, to make argument.
25 If Appellants' goal is corrective action, would it not serve all parties involved
26 to better understand the material facts in question so it is clear which of the
27 County's many actions attempting to achieve due diligence are allegedly still
28 unsatisfactory? This is not meant in any way to minimize the significance of
JEFFERSON COUNTY'S RESPONSE BRIEF e`'`\ ''% Jefferson County Prosecuting Attorney
IN OPPOSITION TO APPELLANT'S � `- 1820 Jefferson Street/P.O.Box 1220
MOTION FOR SUMMARY JUDGMENT Port Townsend,WA 98368
Page 9 of 11 `;,,�� ��; 360-385-9180
potential environmental impact, but rather in all sincerity — if the County's due
diligence measures to request additional information, review additional reports,
3 complete the site visit, etc., and compile a detailed Staff Report summarizing
4 multiple public comments and professional reports, are not enough, then what is?
5 What is the standard for reviewing potential adverse impacts outside of the
6 shoreline area and what is reasonable to demand of local government?
7 VIII. CONCLUSION
8 For the reasons discussed above, Appellant's Motion for Summary Judgment
9 should be denied, as there are genuine issues of material fact and Appellant's have
to not met their burden under the Summary Judgment standard. Additionally,
11 Appellant's motion fails to comply with procedural timelines, and without a good
12 cause determination warrants denial.
13 Respectfully submitted this 7th day of July, 2025.
14
15 JAMES KENNEDY
Jefferson County Prosecuting Attorney
16
17
18
Ariel Speser, WSBA#44125
19 Civil Deputy Prosecuting
20 Attorney
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soN
JEFFERSON COUNTY'S RESPONSE BRIEF ,‘(,. eon Jefferson County Prosecuting Attorney
IN OPPOSITION TO APPELLANT'S ` ti74k 1820 Jefferson Street/P.O. Box 1220
MOTION FOR SUMMARY JUDGMENT Port Townsend,WA 98368
Page 10 of 11 "syr .c0 360-385-9180
1 DECLARATION OF SERVICE
2 I, Ariel Speser, under penalty of perjury under the laws of the State of
3 Washington, declare as follows:
4 I am the assigned attorney for Respondent Jefferson County. On Monday,
5 July 7, 2025, I served a true and correct copy of the foregoing JEFFERSON
6 COUNTY'S RESPONSE BRIEF IN OPPOSITION TO APPELLANT'S MOTION
` FOR SUMMARY JUDGMENT and DECLARTION WITH EXHIBITS I
8
THROUGH M to be served on the persons listed below:
9
Name: Bryan Telegin, Name: Patrick Mullaney
10 C/O Telegin Law PLLC Title: Attorney for Applicant Richard
11 Title: Attorney for Appellants Rathvon
Municipality/Organization/Law Firm Municipality/Organization/Law Firm
12 Address: 216 6th Street Address: Schwabe, Williamson &
13 Bremerton, WA 98337 Wyatt, P.C., 1450 5th Ave., Ste. 3400,
❑x by E-mail to bryan@teleginlaw.com Seattle, WA 98101-2339
14 by E-mail to
15 PMullaney@schwabe.com
16 Office of the Jefferson County Hearing Examiner
By Email: carolyn@co.iefferson.wa.us
17 AFMcKnight@co.jefferson.wa.us
18
19 Dated this 7th day of July, 2025.
20
21
22 Ariel Speser, WSBA#44125
23 Civil Deputy Prosecuting Attorney
for Jefferson County
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25
26
h
JEFFERSON COUNTY'S RESPONSE BRIEF 0, Jefferson County Prosecuting Attorney
IN OPPOSITION TO APPELLANT'S 1 1820 Jefferson Street/P.O.Box 1220
MOTION FOR SUMMARY JUDGMENT Port Townsend,WA 98368
Page 11 of 11 's,,/1\„‘`f 360-385-9180