HomeMy WebLinkAboutCA11 2025 07 07 Reply ISO Motion for Summary Judgment RECEIVED
JUL 0 8 2025
JEFFERSON COUNTY
COMMISStONFRS
Stephanie Marshall
Jefferson County Hearing Examiner
EXHIBIT # i i
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BEFORE THE LAND USE HEARING EXAMINER
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IN AND FOR JEFFERSON COUNTY
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In re Appeal of Rathvon Shoreline
9 Conditional Use Permit,DCD File No. REPLY IN SUPPORT OF
10 SDP2023-00020 APPELLANT'S MOTION FOR
SUMMARY JUDGMENT
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12 I. INTRODUCTION
13 As the Hearing Examiner observed in her email to the Parties on June 30,2025, the Hearing
14 Examiner's Rules of Procedure "are silent as to whether the appellants have an opportunity to file a
15 reply brief'in support of their pending motion for summary judgment. Because the diapositive issues
16 in this appeal are clear and require no further factual development, Appellants John DiMaggio and
17 Michelle Oliver respectfully request that the Examiner consider this reply and issue an order reversing
18 and remanding the challenged shoreline conditional use permit.
19 II. EVIDENCE RELIED UPON
20 This reply relies upon the Second Declaration of Bryan Telegin("2d Telegin Decl.") and on
21 the pleadings and filings herein.
22 III. ARGUMENT
23 A. Appellants' motion for summary judgment is timely.
24 The County's response repeats the unfounded argument that Appellants'motion for summary
25 judgment was not timely under Rule 3.3.We already addressed the Applicant's argument on this issue,
26 which alleged incorrectly that the motion was untimely under the"computation of time"procedure at
Rule 1.10. Our response to that argument was emailed to the Examiner's clerk (Ms. Gallaway) on
Telegin Law ru.c
REPLY IN SUPPORT OF MOTION FOR 216 6*Street
SUMMARY JUDGMENT- 1 eremert WA 98337
Bryan@teleleginlaw.com
(2061453-2884
REPLY IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT - 2
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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June 30, 2025. A copy of that response is attached hereto as Attachment A and is fully incorporated
herein.
In a new line of argument, the County now argues that appellants’ motion was untimely under
the three-day-delay rule at Rule 1.12 of the Examiner’s rules of procedure, which provides that when
service is accomplished by U.S. mail, service is complete on “the third day following the day upon
which [the documents] are placed in the mail.” Here, however, the County agreed to service by email
on July 25, 2025. See Telegin Decl., Ex. A. On behalf of the applicant, Mr. Mullaney agreed to e-
service on July 26, 2025. Id., Ex. B. As stated in the certificate of service accompanying appellants’
motion for summary judgment, the motion was timely served by e-mail on both Mr. Ballard and Mr.
Mullaney on June 27, 2025, twenty days prior to the hearing as required by Rule 3.3(a). See also id.,
Ex. C (copy of service email). There is no basis in the Examiner’s rules of procedure for applying the
three-day-delay rule that would apply to postal mailings when service was accomplished electronically
in accord with the Parties’ agreement.
For all the reasons stated in Attachment A, appellants’ motion for summary judgment was
timely under Rule 3.3(a) of the Examiner’s Rules of Procedure. Indeed, as discussed in Attachment
A, our calculation of June 27, 2025, as the 20-day motion deadline used the exact same computation-
of-time method as the Examiner’s calculation of the 10-day response deadline of June 7, 2025. There
is no basis for denying appellants’ motion on timeliness grounds.
B. The Applicant’s planned expansion of Twana Way, together with its use of that
road as a construction haul route, proves that the County violated the Shoreline
Management Act when it excluded these elements of the project from its permit
review.
As the Applicant acknowledges in its response, the Shoreline Hearings Board (“SHB”) has
held that when reviewing a shoreline permit application, the local jurisdiction must consider “the ‘full,
unified, and integrated’ project, including elements both within and outside shoreline jurisdiction, so
the local government may determine whether off-site components ‘may adversely impact the
shoreline.’” Applicant Resp. at 8–9 (quoting Citizens to Stop the SR 169 Asphalt Plant v. King County,
SHB No. 22-007 (Apr. 12, 2023) (emphasis in original)). In our motion for summary judgment, we
REPLY IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT - 3
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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argued that the Applicant’s use of Twana Way as a construction haul route is part of the full, unified,
and integrated project. Thus, we argued, under this binding precedent from the SHB, the County must
evaluate the Applicant’s planned use of the road as part of its review of the shoreline permit at issue
in this case. We also argued that the Applicant (Mr. Rathvon) already 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.” Mot. at 3.
Now, in response to our motion, the Applicant discloses that not only does he intend to use the
road as a construction haul route, but that the road will, in fact, need to be widened to accommodate
construction-related traffic. This is clearly stated in Exhibit 5 to the declaration of Richard Rathvon,
which includes a February 25, 2025, document titled “Geologic Hazard Assessment for Twana Way
Improvements” from the Stratum Group, Mr. Rathvon’s geotechnical consultant. According to Mr.
Rathvon, this document was submitted to Jefferson County DCD as part of its shoreline permit review
“on or about March 13, 2025.” Rathvon Decl., ¶ 15.
This document from the Stratum Group states unequivocally that Twana Way will, in fact,
need to be physically widened in order to accommodate the planned construction traffic. This is stated
in the second paragraph of the document, which provides:
Based on our field investigation, it is our opinion that road widening
will be required in several places in order to accommodate large
trucks and/or other construction equipment. In some locations, road
widening can be accomplished by expanding the travelled roadway
into the existing shoulder areas (e.g. Figure 1). In other areas, road
widening will require excavation into existing cut slopes (e.g. Figure
2).
Rathvon Decl., Ex. 5 at 1 (emphasis added).
In addition to physically widening the road, the Applicant’s consultant also determined that
the road may need to be re-graded due to its steep slope. As stated in the fourth paragraph of that
document:
In addition to road widening, regrading of the road may be required
to lessen the steepness of the roadway and also to repair holes and ruts.
Regrading of the road will not increase the potential for landslides or
REPLY IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT - 4
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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erosion along Twana Way or adjacent areas as long as the
recommendations of this report are followed.
Id. (emphasis added). In short, the “full, unified, and integrated” project in this case includes not only
use of Twana Way as a construction haul route, but also (a) physical widening of the road, and (b)
potentially re-grading the road due to its steep slope, consistent with Mr. Rathvon’s previous
disclosure of an extensive road-improvement plan.
As part of its shoreline permit review, Jefferson County specifically asked the Applicant if he
intended to make physical improvements to the road, consistent with binding precedent from the SHB
that the full, unified, integrated project must be evaluated, including components located outside the
200-foot shoreline jurisdiction under the Shoreline Management Act. Specifically, on November 5,
2024, the County asked Mr. Rathvon to “[c]larify if road improvements or vegetation trimming is
proposed.” Declaration of Ariel Speser (July 7, 2025), Ex. K at 3. At that time, Mr. Rathvon’s
geotechnical consultant responded that “[w]e are not proposing to alter or expand the road, including
‘cut and fill’ activities or removal of trees.” Id. That response is now outdated, as the Applicant’s
consultant has now determined that “road widening will be required” and that “regrading of the road
may be required.”
Notwithstanding this new information that road widening “will be required” and that re-
grading of the road “may be required,” the Applicant offers no documentation of how much of the
road needs to be widened (or where), or how much of the road may need to be re-graded (or where).
Nor did the County evaluate potential impacts from this work as part of its permit review. The
County’s staff report explains that it specifically omitted these issues from its permit review because
“[r]oad improvements are not proposed within shoreline jurisdiction or at the parking area.” Telegin
Decl., Ex. E at 4 (emphasis added).
This decision by the County to intentionally omit consideration of road improvements outside
the shoreline jurisdiction area violates the SMA. As discussed in our motion for summary judgment,
in Citizens to Stop the SR 169 Asphalt Plant v. King County, the SHB ruled specifically that “[a]
shoreline permit application must describe the full, unified, and integrated physical project, both within
REPLY IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT - 5
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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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, *41 (April
12, 2023) (emphasis added). As the Applicant observes, in Citizens to Stop the SR 169 Asphalt Plant,
the “off-site element in question (relocating an access road for an asphalt plant) was physically
connected to the shoreline development and part of the same overall project under review.” Applicant
Resp. at 9. Similarly, here, the Applicant’s consultant has determined that the road needs to be
physically widened and potentially regraded. The road is physically connected to the shoreline
development under review (it is the only means of access). The road widening and re-grading is part
of the same overall project.
Indeed, the only potentially distinguishing factor between this case and Citizens to Stop the
SR 169 Asphalt Plant is that, in this case, the Applicant now claims that he “ha[s] no present intention
to alter the road.” Id. at 9. But that is no distinction at all, as this claim is belied by the report that the
Applicant himself submitted determining that “road widening will be required” and that “regrading
of the road may be required to lessen the steepness of the roadway.”
Nor does it matter that the County has “conditioned the SCUP to require appropriate permits”
if the road is widened in the future. Applicant Resp. at 9. The whole point of requiring evaluation
under the SMA of all components of the project is to prevent what the Applicant describes as
“piecemeal environmental review.” The SHB has ruled specifically that the “unified, and integrated
physical project, both within and without of the shoreline jurisdiction” must be evaluated under the
SMA, not under some other County permit process unrelated to the SMA. As the SHB held, “SMA
jurisdiction extends to improvements that are entirely outside of the shoreline jurisdiction area, not
just those straddling the boundary.” 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, *41 (April 12,
2023).
REPLY IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT - 6
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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Ultimately, the County should have evaluated the full, unified, and integrated physical project
under the SMA, including use of Twana Way as a construction haul route and, as disclosed by the
Applicant, widening and potentially re-grading of the road itself. As stated in the staff report, the
County elected not to perform this evaluation. The permit should therefore be reversed and remanded
with instructions for the County to undertake this evaluation prior to permit issuance.
Nor should the Examiner evaluate potential impacts from the widening and re-grading of
Twana Way, or its use as a construction haul route, for the first time on appeal. The details of this
work have not been disclosed. It is the duty of County permit staff to review the full, unified, and
integrated proposal and to determine, in the first instance and in accord with the County’s permit
process, if it poses a risk to the shoreline environment. See, e.g., KCC 18.40.270(1) (providing that
“[t]he administrator shall issue written findings and conclusions supporting all Type II decisions,”
which in this case should have included a decision on whether to approve the full, unified, integrated
project inclusive of using Twana Way as a construction haul route, widening the road, and potentially
re-grading the road). The Examiner, in contrast, sits in an appellate capacity to evaluate the legality of
the County’s permit decision. It is not the proper role, therefore, for the Examiner to evaluate the
effects of the proposed road improvements in the first instance. That is the role of County permit staff.
The permit should be reversed and remanded with instructions that they do so.
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.
Dated this 8th day of June, 2025.
TELEGIN LAW PLLC
By:
Bryan Telegin, WSBA No. 46686
Counsel for Appellants John DiMaggio and
Michelle Oliver
REPLY IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT - 7
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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CERTIFICATE OF SERVICE
I hereby certify that on July 8, 2025, I caused to be served a true and correct copy of the
foregoing REPLY IN SUPPORT OF APPELLANT’S MOTION FOR SUMMARY JUDGMENT
and SECOND 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] Via E-mail to GBallard@co.jefferson.wa.us; ASpeser@co.jefferson.wa.us
Patrick Mullaney
Schwabe, Williamson & Wyatt, P.C.
1420 5th Ave Ste 3400
Seattle, WA 98101-2339
Attorney for Applicant Richard Rathvon
[X] Via E-mail to PMullaney@schwabe.com
Dated: June 8, 2025
TELEGIN LAW PLLC
By:
Bryan Telegin
ATT ACHMENT A
1 of 3
Monday, July 7, 2025 at 5:21:35Monday, July 7, 2025 at 5:21:35Monday, July 7, 2025 at 5:21:35Monday, July 7, 2025 at 5:21:35 PM Pacific Daylight TimePM Pacific Daylight TimePM Pacific Daylight TimePM Pacific Daylight Time
Subject:Subject:Subject:Subject:Re: Hearing Examiner response re: Rathvon motions [SWBE-PDX.FID4686644]
Date:Date:Date:Date:Monday, June 30, 2025 at 3:51:03 PM Pacific Daylight Time
From:From:From:From:Bryan Telegin
To:To:To:To:Carolyn Gallaway
CC:CC:CC:CC:Adiel F. McKnight, Philip Hunsucker, Mullaney, Patrick J., rrathvon@gmail.com, Richard Rathvon, tmch@olypen.com, Donna Frostholm, Greg Ballard
BCC:BCC:BCC:BCC:John.DiMaggio, Jamie Telegin
Attachments:Attachments:Attachments:Attachments:image001.png, image002.png, image003.png, image004.png
Madam Examiner,
What Mr. Mullaney describes below is simply the normal way of counting days under virtually every court rule, and also under the Examiner’s rules
of procedure. When computing time, the first day counted is virtually always the day after the event takes place, and then the deadline day is
counted as the final day. Using that method, the motion was, indeed, timely filed, as the 20th day falls on the hearing itself. There is nothing unusual
about this. This is how motion deadlines are calculated in every court that I am aware of, under rules phrased nearly identically to Rule 1.10 of the
Examiner’s rules of procedure.
Also, I note that Rule 3.3(a) refers to filing motions “20 days prior to the hearing,” suggesting that the counting should run backwards from the
hearing day. If we count backwards, not counting the hearing day itself, the motion was, again, timely filed—e.g.:
1.July 16
2.July 15
3.July 14
4.July 13
5.July 12
6.July 11
7.July 10
8.July 9
9.July 8
10.July 7 (ten days prior to hearing)
11.July 6
12.July 5
13.July 4
14.July 3
15.July 2
16.July 1
17.June 30
18.June 29
19.June 28
20.June 27 (twenty days prior to hearing)
Again, these are standard calculations under nearly every “computation of time” rule in courts and other administrative proceedings. It is also the
exact same method that the Examiner used to calculate the applicant’s response deadline of July 7th below (10 days prior to the hearing as required
by Rule 3.3). The motion was timely filed under the Examiner’s rules of procedure.
As to Mr. Mullaney’s request for an additional 3 days, the motion for summary judgment raises a purely legal issue—i.e., whether the County was
legally correct in excluding a certain issue from its review of the shoreline permit. Rule 3.3(a) says that responses are to be filed “no later than 10
days prior to the hearing.” Ten days is more than sugicient to respond to the legal issue presented in the motion.
-Bryan Telegin
Bryan Telegin
Telegin Law pllc
216 6th Street
Bremerton, WA 98337
Tel: 1.206.453.2884, ext. 101
Email: bryan@teleginlaw.com
hHp://teleginlaw.com
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If you have received this message in error, please contact the sender by reply e-mail message and destroy all copies of the original message, including any attachments.
From: From: From: From: "Mullaney, Patrick J." <PMullaney@schwabe.com>
Date: Date: Date: Date: Monday, June 30, 2025 at 3:10 PM
To: To: To: To: Carolyn Gallaway <carolyn@co.jefferson.wa.us>, "rrathvon@gmail.com" <rrathvon@gmail.com>, Richard Rathvon <rrathvon@p1ec.onmicroso].com>,
Bryan Telegin <bryan@teleginlaw.com>, "tmch@olypen.com" <tmch@olypen.com>, Donna Frostholm <DFrostholm@co.jefferson.wa.us>, Greg Ballard
2 of 3
<GBallard@co.jefferson.wa.us>
Cc: Cc: Cc: Cc: "Adiel F. McKnight" <AFMcKnight@co.jefferson.wa.us>, Philip Hunsucker <PHunsucker@co.jefferson.wa.us>
Subject: Subject: Subject: Subject: RE: Hearing Examiner response re: Rathvon mo`ons [SWBE-PDX.FID4686644]
Dear Hearing Examiner:
Applicant’s Objection to the Timeliness of Appellant’s Motion for Summary Judgment:
The Applicant objects to the timeliness of the Appellant’s Motion for Summary Judgment. The Appellant’s attorney, Mr. Telegin, emailed the motion to my
ogice and the County on Friday, June 27, 2025 at 2:09 PM (see screen shot of transmittal email attached below). Per HE Rule 1.10 the computation of time “shall
begin with the first day following the act or event initiating such period of time occurred”. Thus, the computation of time for the motion filing period under HE Rule
3.3(a) did not start until Saturday June 28th, which is less than twenty days prior to the July 17th hearing date.
Moreover, the Appellant’s untimely filing is highly prejudicial to the Applicant’s and the County’s ability to respond. Due to the late filing on a Friday
afternoon, of the ten days available for response, June 28 and June 29 were a weekend, and the 4th of July Holiday weekend is occurring this week. Many ogices
are closed and witnesses are unavailable to prepare declarations. For example, Schwabe Williamson and Wyatt’s ogice is closed July 3 and July 4; July 5 and 6
are a weekend; and the response is due on Monday, July 7th. Thus, Appellant’s untimely filing has essentially left two or three business days, at most, out the ten-
day response period to prepare responsive declarations.
Based on the foregoing, the Applicant requests that the Motion for Summary Judgment be dismissed, as it is untimely and raises multiple issues of
material fact, which are best addressed at the hearing. In the alternative, the Applicant requests an additional three days for the Applicant and the County to
respond to the Motion for Summary Judgment, which would make the responses due on Thursday, July 10th.
Sincerely,
Patrick Mullaney
Patrick Mullaney
Of Counsel
D: (206) 407-1575
C: (206) 612-7744
pmullaney@schwabe.com
From:From:From:From: Carolyn Gallaway <carolyn@co.jefferson.wa.us>
3 of 3
Sent:Sent:Sent:Sent: Monday, June 30, 2025 12:18 PM
To:To:To:To: rrathvon@gmail.com; Richard Rathvon <rrathvon@p1ec.onmicroso].com>; Bryan Telegin <bryan@teleginlaw.com>; Mullaney, Patrick J.
<PMullaney@schwabe.com>; tmch@olypen.com; Donna Frostholm <DFrostholm@co.jefferson.wa.us>; Greg Ballard <GBallard@co.jefferson.wa.us>
Cc:Cc:Cc:Cc: Adiel F. McKnight <AFMcKnight@co.jefferson.wa.us>; Philip Hunsucker <PHunsucker@co.jefferson.wa.us>
Subject:Subject:Subject:Subject: Hearing Examiner response re: Rathvon mo`ons
Importance:Importance:Importance:Importance: High
Gree`ngs all,
Please see the forwarded message at the request of Hearing Examiner Stephanie Marshall for the Rathvon case. If you have any ques`ons/comments, I will work with the
hearing examiner to address them.
Best regards,
Carolyn Gallaway, CMC
Clerk of the Board/Office Manager
Jefferson County Commissioner’s Office
P.O. Box 1220, Port Townsend, WA. 98368
360-385-9122 www.co.jefferson.wa.us
From:From:From:From: Stephanie Marshall
Sent:Sent:Sent:Sent: Monday, June 30, 2025 11:31 AM
To:To:To:To: Carolyn Gallaway <carolyn@co.jefferson.wa.us>
Subject:Subject:Subject:Subject: Re: Rathvon - mo`ons received
ALERT: BE CAUTIOUS This email originated outside the organization. Do not open attachments or click on links if you are not expecting them.
Good morning Carolyn,
Thank you again for forwarding me these documents.
Under Jefferson County Code Chapter 2.30 and the Jefferson County Hearing Examiner Rules of Procedure (10/19/2019), pre-hearing mo`ons are permiHed, provided
they are filed 20 days prior to the hearing. Rule 3.3(a). I note that the Mo`on for Summary Judgment and suppor`ng declara`on are dated June 25, 2025dated June 25, 2025dated June 25, 2025dated June 25, 2025, which would
have been `mely, but that the cer`ficates of service show that the pleadings were not served un`l June 27, 2025June 27, 2025June 27, 2025June 27, 2025. In my review of the mo`on and any responses
thereto, I will be making a ruling on the `meliness of the mo`on. The rules permit the Examiner's considera`on of late filings or responses upon a showing of good
cause.
The applicant and the County may file a responsive pleading to the mo`on not later than 10 days prior to the hearing. Their response(s) should not exceed 10 pages in
length, each. That deadline, as calculated from the date of the hearing is Monday, July 7, 2025Monday, July 7, 2025Monday, July 7, 2025Monday, July 7, 2025. The rules are silent as to whether the appellants have an opportunity to
file a reply brief.
You may advise the par`es accordingly by forwarding this email.
I will prepare a wriHen ruling on the Mo`on for Summary Judgment no later than Monday, July 14, 2025.Monday, July 14, 2025.Monday, July 14, 2025.Monday, July 14, 2025.
Let me know if there are any ques`ons.
Sincerely,
Stephanie E. Marshall
Jefferson County Hearing Examiner
__________________________________________________________
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