HomeMy WebLinkAboutFINAL Rathvon Order on Summary Judgment MotionPage 1 of 5
Order on Appellants’ Motion for Summary Judgment
Jefferson County Hearing Examiner
Appeal of Rathvon Shoreline Conditional Use Permit
Department of Community Development File No. SDP2023-00020
BEFORE THE LAND USE HEARING EXAMINER
FOR JEFFERSON COUNTY
In re Appeal of Rathvon Shoreline )
Conditional Use Permit ) ORDER ON APPELLANTS’
DCD File No. SDP2023-00020 ) MOTION FOR SUMMARY
) JUDGMENT
)
I. PROCEDURAL BACKGROUND
The captioned appeal challenges an administrative approval of a shoreline conditional use permit,
Jefferson County Department of Community Development (DCD) File No. SDP2023-00020
dated April 14, 2025 (the “Permit”). Jefferson County issued the Permit administratively, as a
Type II decision. Property owner and applicant Richard Rathvon (“Applicant” or “Rathvon”)
proposes to develop vacant a single-family residence within the shoreline environment on
property located at 660 Twana Way, Quilcene, Washington 98376 (the “Property”). The Property
is accessed by Twana Way, which road is shared by other property owners, including appellants
John DiMaggio and Michelle Oliver (“Appellants”).
On April 23, 2025, Appellants filed a timely appeal of the Permit. Exhibit CA01. None of the
parties requested a Prehearing Conference. Therefore, no Prehearing Order has been issued. A
hearing on the Appeal is scheduled for July 17, 2025 at 10:30 a.m.
On June 27, 2025, Appellants filed a Motion for Summary Judgment, requesting the Hearing
Examiner to reverse the County’s issuance of SCUP No. SDP2023-00020 and remand the Permit
to DCD with instructions to evaluate potential impacts to the shoreline environment caused by
the Applicant’s use of Twana Way as a construction haul route, and resulting from any widening
and re-grading work on Twana Way. Exhibits CA03 and CA11.
The Applicant and Jefferson County submitted briefing and declarations in opposition to
Appellants’ Motion for Summary Judgment on July 7, 2025. Exhibits CA05 through CA10.
Appellants filed a Reply in Support of Motion for Summary Judgment and supporting declaration
on July 8, 2025. Exhibits CA11-CA12.
The Jefferson County Hearing Examiner has jurisdiction over this Type II land use appeal. The
procedures governing hearings before the Hearing Examiner are set forth in the Hearing Examiner
Code, Chapter 2.30 Jefferson County Code (“JCC”) and the Jefferson County Hearing Examiner
Rules of Procedure (collectively, “ROP” and individually “Rule”) (10/15/2019).
II. EVIDENCE RELIED UPON
The Hearing Examiner considered the following:
Page 2 of 5
Order on Appellants’ Motion for Summary Judgment
Jefferson County Hearing Examiner
Appeal of Rathvon Shoreline Conditional Use Permit
Department of Community Development File No. SDP2023-00020
1. Appellant’s Motion for Summary Judgment (Ex. CA03);
2. Declaration of Bryan Telegin in Support of Appellant’s Motion for Summary Judgment
and exhibits thereto (Ex. CA04);
3. Jefferson County’s Response Brief in Opposition to Appellant’s Motion for Summary
Judgment (Ex. CA05);
4. Declaration of Attorney Ariel Speser in Support of Jefferson County’s Response Brief
in Opposition to Appellant’s Motion for Summary Judgment and exhibits thereto (Ex.
CA06);
5. Applicant’s Response to Appellant’s Motion for Summary Judgment (Ex. CA07);
6. Declaration of Richard Rathvon in Opposition to Appellants’ Motion for Summary
Judgment and exhibits thereto(Ex. CA08);
7. Declaration of Dan McShane, L.E.G. in Opposition to Appellant’s Motion for Summary
Judgment (Ex. CA09);
8. Declaration of Larry Dean Richert in Opposition to Appellants’ Motion for Summary
Judgment (Ex. CA10);
9. Reply in Support of Appellant’s Motion for Summary Judgment (Ex. CA11);
10. Second Declaration of Bryan Telegin and exhibits thereto (Ex. CA12).
III. ANALYSIS OF APPELLANTS’ MOTION FOR SUMMARY JUDGMENT
Appellants moved for summary judgment, requesting reversal and remand of the Permit, alleging
that Jefferson County failed to analyze: (1) potential impacts to the shoreline of Dabob Bay resulting
from use of Twana Way by the Applicant for heavy construction equipment on the shoreline
environment; and (2) the entirety of the proposal, which Appellants allege includes widening and
potential re-grading of Twana Way. Appellants argue that the County erroneously determined that,
because Twana Way is outside the shoreline environment, review of potential impacts from its use
by the Applicant during construction of a proposed home is “outside the scope of the shoreline
application.”
Appellants allege that the County erred as a matter of law in concluding that impacts to the
shoreline environment arising from use of, and potential improvements to Twana Way are outside
the scope of the County’s permit review for a SCUP. Appellants argue that the proper remedy is
to reverse and remand for evaluation of this issue prior to permit issuance.
A. Timeliness of Appellants’ Motion for Summary Judgment
Notwithstanding the Hearing Examiner’s originally expressed concerns in an email to the
Examiner’s office on June 30, 2025, the Examiner finds and concludes that the Motion for
Summary Judgment was timely filed and served twenty (20) days prior to the hearing date
scheduled for the appeal on July 17, 2025, calculating dates in accordance with Rule 1.10 of the
Jefferson County Hearing Examiner Rules of Procedure (collectively, “ROP” and individually
“Rule”) (10/15/2019) and Rule 3.3(a0. The parties agreed among themselves to e-service, as
permitted by Rule 1.12, which obviates the need to account for an additional 3-days for service in
Rule 1.12. Ex. CA12, exhibits A, B and C.
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Order on Appellants’ Motion for Summary Judgment
Jefferson County Hearing Examiner
Appeal of Rathvon Shoreline Conditional Use Permit
Department of Community Development File No. SDP2023-00020
Appellants’ Motion for Summary Judgment is permitted by Rule 3.3(a) of the ROP, which states,
“A principal party may request summary dismissal, summary judgement, a limitation on the
introduction of evidence or testimony, subpoenas, or other matters through a timely pre-hearing
motion. A party of record may submit a pre-hearing motion as otherwise prescribed in these Rules.
Except 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. Motions and responsive pleadings shall be
concurrently served on principal parties and the examiner' s office, consistent with Rule 1.12. The
opposing party may file a responsive pleading with the examiner' s office and serve it on principal
parties no later than 10 days prior to the hearing. Late filings or responses may be considered by
the examiner upon a request by the examiner or a showing of good cause.”
The Hearing Examiner concludes that Appellants’ Reply in Support of Motion for Summary
Judgment and supporting declaration are permissible because the ROP are silent as to reply
briefing on dispositive motions.
B. Standard for Summary Judgment
The Hearing Examiner has authority to consider a party’s motion for summary judgment in a Type
II permit appeal proceeding. Rule 3.3. Summary judgment is appropriate where there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. Post v. City
of Tacoma, 167 Wn.2d 300, 308 (2009); see also CR 56(c). A material fact is one upon which the
outcome of litigation depends. Jacobsen v. State, 89 Wn.2d 104, 110 (1977); Keck v. Collins, 184
Wn.2d 358, 370 n.8 (2015). All facts and reasonable inferences are viewed in the light most
favorable to the nonmoving party. Sherman v. State, 128 Wn.2d 164, 183 (1995). Any doubts as
to the existence of a genuine issue of material fact are resolved against the moving party.” Atherton
Condo. Apartment-Owners Ass’n of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516 (1990).
C. Genuine Issues of Material Fact
The following facts are disputed and constitute genuine issues of material fact:
• Existing slope, stability and general conditions of Twana Way
• Whether Applicant’s construction-related vehicles will be able to navigate Twana Way in its
current condition to access the Property
• Whether use of Twana Way by Applicant’s construction-related vehicles will affect the
shoreline environment
• Whether application materials analyzed potential impacts of construction vehicle use of
Twana Way on the shoreline environment and the stability of Twana Way
• Whether issuance of the Permit will cause adverse effects to the shoreline environment in
which it is located as required by JCC 18.25.220
• Whether the public interest will suffer any substantial detrimental effect as a result of
Applicant’s work pursuant to the Permit as required by JCC 18.25.590(2)(d)-(e).
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Order on Appellants’ Motion for Summary Judgment
Jefferson County Hearing Examiner
Appeal of Rathvon Shoreline Conditional Use Permit
Department of Community Development File No. SDP2023-00020
• Relevance of Applicant’s previous efforts regarding a road improvement or renovation plan
for Twana Way
• Whether statements in the February 25, 2025 Stratum Group report, “Geologic Hazard
Assessment for Twana Way Improvements,” constitute a proposal to widen and/or re-grade
the road, notwithstanding Applicant’s statement that he and his experts “have not determined
that there is a need to alter Twana Way.”
D. Hearing Examiner’s Authority to Review Activity on Property Beyond the 200-Foot
SMA Jurisdictional Limit.
The Shoreline Management Act, RCW 90.58.010, et seq. (“SMA”), regulates development within
200 feet landward of most lakes, rivers and marine waters of the State of Washington. The
Applicant’s proposal to construct a single-family home on the Property requires a shoreline
conditional use permit because the Property is within the shoreline environment of Dabob Bay,
located in Hood Canal. JCC 18.25.220. The County’s SMP requires “[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).
The SMA provides 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
90.85.900; Merkel v. Port of Brownsville, 8 Wn. App. 844, 848-49 (1973).
No party disputes the fact that Twana Way is more than 200 feet from the shoreline of Dabob Bay.
Jefferson County and the Applicant are generally correct that only those developments within the
200-foot shoreline jurisdiction are subject to regulation under the SMA, and the local Shoreline
Master Program (“SMP”). E.g. Weyerhaeuser Co. . King County, 91 Wn.2d 721, 736 (1979). No
party disputes that, under the Jefferson County Shoreline Master Program (“SMP”), 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.
Notwithstanding the 200-foot jurisdictional limit in the SMA and SMP, review of activities on
property beyond the jurisdictional boundary is required when such activities are part of a “full,
unified and integrated project” that includes elements both within and outside the shoreline
jurisdiction. E.g. Citizens to Stop the SR 169 Asphalt Plant v. King County, SHB No. 22-007 (Apr.
12, 2023). The purpose of such extended review is to guard against piecemeal environmental
review so that local government may determine whether off-site components of such “full, unified
and integrated project” will adversely impact the shoreline. Such review does not “enlarge” the
SMA’s jurisdictional reach beyond 200 feet, but instead ensures that all aspects of a project –
where portions are inside and outside the shoreline jurisdiction - are reviewed together in a
cohesive fashion.
Therefore, where there is an off-site component of a project, the project is within the shoreline
environment, and the off-site component is part of a full, unified and integrated project that
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Order on Appellants’ Motion for Summary Judgment
Jefferson County Hearing Examiner
Appeal of Rathvon Shoreline Conditional Use Permit
Department of Community Development File No. SDP2023-00020
includes the proposal within the shoreline environment, the local jurisdiction must review the off-
site component as part of the overall shoreline proposal.
E. Genuine Issues of Material Fact Preclude Summary Judgment.
On the record as it exists today, there is a genuine issue of material fact whether improvements to
Twana Way are required or were proposed by the Applicant as part of a “full, unified and
integrated project” to develop a single-family home on the Applicant’s property. Despite
competing statements in the February 25, 2025 Stratum Group report, “Geologic Hazard
Assessment for Twana Way Improvements” and in the declarations submitted by Applicant in
opposition to Appellants’ Motion for Summary Judgment, the facts and reasonable inferences are
viewed in the light most favorable to the nonmoving party – the Applicant, and Jefferson County.
Moreover, any doubts as to the existence of a genuine issue of material fact are resolved against
the moving party.
Genuine issues of material fact also exist as to whether the County properly evaluated potential
impacts of the Applicant’s use of Twana Way (if not improved or otherwise modified) for
construction equipment access. The Applicant and the County contend that impacts alleged by
Appellants are hypothetical and speculative.
Only after introduction of additional evidence at hearing will the Examiner be able to determine
whether the statements at pages 2-3 and 4 in the Staff Report (Ex. CA02), that the Geology Hazard
Assessment for Twana Way Improvements is outside the scope of the proposal to construct a
single-family residence, is correct. That factual determination will inform the Examiner’s
conclusion as to whether Jefferson County properly evaluated all components of the “project,” or
whether the Permit should be reversed and remanded to DCD for evaluation of potential impacts
from widening and/or re-grading of Twana Way in the first instance. It will also inform the
Examiner’s conclusion whether conditions of approval nos. 6 and 7 in the Permit that limit the
scope of approval to the proposed construction of a single-family residence and require future
permitting of potential road alteration, if proposed in the future, are lawful.
IV. ORDER
After having reviewed all of the submitted pleadings, declarations and exhibits thereto, and based
on the analysis set forth above, the Jefferson County Hearing Examiner rules as follows:
Appellants’ Motion for Summary Judgment is DENIED.
SO ORDERED this 11h day of July, 2025
________________________________
Stephanie E. Marshall
Jefferson County Hearing Examiner