HomeMy WebLinkAboutCA-08 Resp Motion to Dismiss FINALRESPONDENTS’ MOTION TO DISMISS
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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BEFORE THE JEFFERSON COUTNY
HEARING EXAMINER
MARILYN SHOWALTER and JAN WOLD
Appellants,
vs.
JEFFERSON COUNTY,
Respondent,
and
ROCK ISLAND SHELLFISH; ROBERT CARSON,
Respondent.
Case No.: 072525
(SDP2024-00006)
RESPONDENTS’ MOTION TO
DISMISS
I.Introduction and Relief Requested
Appellants Marilyn Showalter and Jan Wold did not provide timely
comments to Jefferson County on the environmental impacts of Rock Island
Shellfish’s proposed oyster farm (“Proposal”). The Jefferson County Code limits the
right to appeal a mitigated determination of non-significance (“MDNS”) to the
applicant and anyone who has submitted timely comments. Because the right to
administratively appeal the MDNS is limited to parties who timely commented,
and Appellants failed to provide such comments, Jefferson County and Rock Island
Shellfish respectfully request an order dismissing Appellants’ MDNS appeal and
affirming the MDNS.
CA received 07/15/25
EXHIBIT CA-08
RESPONDENTS’ MOTION TO DISMISS
Page 2 of 6 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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II. Statement of Facts
On June 3, 2024, Rock Island Shellfish submitted a shoreline substantial
development permit (“SDP”) application to the Department of Community
Development (“DCD”), to operate an oyster farm on privately-owned tidelands
associated with parcel numbers 965100009, 965100010, and 965100011
(“Property”). First Declaration of Donna Frostholm (“Frostholm Decl.”), Ex., A
(DCD’s Notice of Application Packet). Rock Island Shellfish proposes to raise
Kumamoto oysters in a rack-and-bag system using specially designed “SEAPA”
baskets and maintaining 16.5-foot buffers from native eelgrass. Id. The SDP
application was supported by a Habitat Report and a Habitat Management Plan,
along with a State Environmental Policy Act (“SEPA”) checklist. Id.
The Proposal’s SDP application was deemed complete on June 27, 2024. Id.
Consistent with RCW 18.40.210, DCD and Rock Island Shellfish subsequently
published, posted, and/or distributed multiples notices of the Farm’s application
(the notice of application, or “NOA”), including as follows:
• On Monday, July 8, 2024, the NOA was sent to The Port Townsend &
Jefferson County Leader, Frostholm Decl., Ex. A (included in DCD’s Notice of
Application packet).
• On Tuesday, July 9, 2024, DCD mailed the NOA to neighboring property
owners within 300 feet of the Property. Id.
• Also on Tuesday, July 9, Rock Island Shellfish posted the NOA at the
Property. First Declaration of Robert Carson, ⁋ 4, Ex. A. Shortly thereafter,
DCD staff visited the Property. During that visit, DCD was able to confirm
that the NOA was properly posted. Id. ⁋ 5. See also Frostholm Decl., Ex. B.
(Affidavit of Posting).
• On Wednesday, July 10, 2024, the NOA was published in The Port
Townsend & Jefferson County Leader. Frostholm Decl., Ex. C. (Affidavit of
Publication).
CA received 07/15/25
EXHIBIT CA-08
RESPONDENTS’ MOTION TO DISMISS
Page 3 of 6 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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• Additionally on July 10, 2024, DCD sent a review of the Proposal to other
agencies (including tribes) via email. SEPA reviewer information for the
Proposal was added into the Washington Department of Ecology system. Id.,
Ex. A (included in DCD’s Notice of Application packet).
Among other things, the NOA notified the public that the Proposal is subject
to review under SEPA and invited all interested persons to provide comments on it,
stating that comments were due by 4:30 p.m. on August 9, 2024. Frostholm Decl.,
Ex. A. The NOA further specified that the County was utilizing SEPA’s optional
DNS process pursuant to WAC 197-11-355 and that “this may be the only
opportunity to comment on the environmental impacts of the proposal.” Id. The
optional DNS process allows a county or city with an integrated project review
process to use a single integrated comment period to obtain comments on the notice
of application and the likely SEPA threshold determination for the proposal, when
the agency has a reasonable basis for determining significant adverse impacts are
unlikely. WAC 197-11-355(1). The County’s use of the optional DNS process was
informed by DCD’s review of the SEPA checklist, project submissions, and other
available information, and in light of Jefferson County Code and Comprehensive
Plan provisions that would be used to form permit conditions if the SDP were to be
approved. Frostholm Decl., Ex. A.
Neither Marilyn Showalter nor Jan Wold submitted comments on the NOA
or on DCD’s anticipated issuance of a DNS by the August 9, 2024, deadline.
Frostholm Decl., ⁋ 10.
III. Authority and Argument
The office of the Jefferson County Hearing Examiner is created by County
law. JCC 2.30.030. As such, the Hearing Examiner lacks inherent powers and may
only exercise authority explicitly conferred by statute or ordinance. HJS Dev. v.
Pierce Cty., 148 Wn.2d 451, 471, 61 P.3d 1141 (2003); Skagit Surveyors & Eng'rs,
L.L.C. v. Friends of Skagit Cty., 135 Wn.2d 542, 558, 958 P.2d 962 (1998).
CA received 07/15/25
EXHIBIT CA-08
RESPONDENTS’ MOTION TO DISMISS
Page 4 of 6 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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Therefore, to have jurisdiction to consider Appellants’ administrative MDNS
appeal, legislation must confer the Hearing Examiner with such authority.
Section 18.40.330 of the County Code specifically addresses the ability to file
administrative appeals of County decisions. JCC 18.40.330 first articulates the
following, baseline rule: “In the absence of a specific right of appeal authorized
under this UDC, there shall be no right to administrative appeals.” JCC 18.40.330.
It subsequently authorizes administrative appeals for certain decisions, including
SEPA decisions. Subsection (3)(a) specifically authorizes administrative appeals of
a DNS or MDNS, but such appeals may only be brought “by the applicant or
anyone commenting on the environmental impacts of the proposal (as further set
forth in JCC 18.40.780).” Id. JCC 18.40.780, in turn, clarifies that the comment
period for proposals that proceed pursuant to the optional DNS process is the
single integrated comment period that is used to obtain comments on the notice of
application and the likely threshold determination of the proposal. JCC
18.40.780(1).1 In this particular case, the comment period was 30-days because
local shoreline regulations require a longer comment period pursuant to JCC
18.40.220(2)(a).
The requirement that a party first provide comments on an anticipated
SEPA threshold determination is supported by state law, which states that the
lack of timely comment by members of the public on environmental documents
“shall be construed as lack of objection to the environmental analysis,” if
reasonable notification methods were used. WAC 197-11-545(2). State
environmental review boards routinely recognize that failure to comment on
environmental documents precludes subsequently challenging them under this
1 The online version of the Jefferson County Code does not reflect recent amendments made to JCC 18.40.780 earlier this year pursuant to Ordinance No. 11-1216-24. The relevant portion of JCC 18.40.780, however, was not changed by this ordinance. Ordinance No. 11-1216-24 is available at the following address: https://test.co.jefferson .wa.us/WeblinkExternal/DocView.aspx?id=8720403&dbid=0&repo=Jefferson.
CA received 07/15/25
EXHIBIT CA-08
RESPONDENTS’ MOTION TO DISMISS
Page 5 of 6 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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regulation. See Friends of Grays Harbor v. Olympic Region Clean Air Agency,
PCHB NO. 24-037 (Order Granting Partial Summary Judgment, May 22, 2025),
2025 WA ENV LEXIS 136, *27-29, and authorities cited therein. Limiting standing
to individuals who provided timely comments also comports with general principles
that apply to review of local decisions. E.g., RCW 36.70C.060(2)(d) (requiring
parties to exhaust remedies challenge a decision under the land use petition act
(“LUPA”)); Thompson v. City of Mercer Island, 193 Wn. App. 653, 660, 375 P.3d 681
(2016) (failure to provide timely written comments in response to a notice of
application precludes a party from appealing a land use decision under LUPA).
The Appellants in this case are Marilyn Showalter and Jan Wold. Neither
Ms. Showalter nor Ms. Wold submitted comments on the environmental impacts of
the Proposal by the NOA’s single, integrated comment deadline, August 9, 2024.
Frostholm Decl., ⁋ 10. Accordingly, Appellants are not entitled to administratively
appeal the MDNS, and the Hearing Examiner does not have authority to consider
their appeal. JCC 18.40.330, .330(3)(a). Hence, their appeal should be dismissed
and the MDNS should be affirmed. Kaiser Aluminum & Chem. Corp. v. Dep’t of
Labor & Indus., 121 Wn.2d 776, 787, 854 P.2d 611 (1993) (dismissal of appeal
proper remedy when administrative appeal body lacks authority to consider it);
Jefferson County Hearing Examiner Rules of Procedure, Rule 3.3(a) (authorizing
principal parties to obtain summary dismissal of appeals through pre-hearing
motions). Cf. ZDI Gaming, Inc. v. Wash. State Gambling Comm’n, 173 Wn.2d 608,
631, 268 P.3d 929 (2012) (dismissal is the only permissible remedy when a court
lacks jurisdiction).
IV. Conclusion
For the foregoing reasons, Jefferson County and Rock Island Shellfish
respectfully request that the Hearing Examiner enter an order dismissing
Appellants’ MDNS appeal and affirming the MDNS.
CA received 07/15/25
EXHIBIT CA-08
RESPONDENTS’ MOTION TO DISMISS
Page 6 of 6 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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RESPECTFULLY SUMBITTED this 15th day of July, 2025.
JAMES KENNEDY Jefferson County Prosecuting Attorney ______________________________ Ariel Speser, WSBA #44125 Civil Deputy Prosecuting Attorney Jefferson County
PLAUCHÉ & CARR LLP
By: s/Jesse DeNike Jesse DeNike, WSBA #39526 1218 Third Avenue, Suite 2000 Seattle, WA 98101 Phone: 206-588-4188 Email: jesse@plauchecarr.com
Attorney for Rock Island
Shellfish
CA received 07/15/25
EXHIBIT CA-08