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HomeMy WebLinkAboutCA-14 Joint Response to Appellants Motion to Dismiss (0002)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) JEFFERSON COUNTY AND APPLICANT’S JOINT RESPONSE TO APPELLANTS’ MOTION TO DISMISS (WITHOUT PREJUDICE) DUE TO ERROEOUS NOTICE PROCEDURES I.INTRODUCTION AND RELIEF REQUESTED Appellants Marilyn Showalter and Jan Wold filed a pre-hearing Motion to Dismiss. Respondents agree the case should be dismissed, albeit for different reasons, as were set forth in Respondents’ Motion to Dismiss filed August 15, 2025. For reasons set forth below, Jefferson County and Rock Island Shellfish request Appellants’ motion to be denied. II.FACTS On June 3, 2024, Rock Island Shellfish submitted a shoreline substantial development permit (“SDP”) application to the Jefferson County Department of Community Development CA received 07/22/25 EXHIBIT CA-14 (“DCD”), to operate an oyster farm on privately-owned tidelands associated with parcel numbers 965100009, 965100010, and 965100011 (“Property”). DCD processed the application, determined it complete on June 27, 2024, and issued a Public Notice of Type III Land use Application (NOA) for SDP2024-00006 on July 10, 2024. The NOA is attached to the Second Declaration of Donna Frostholm (“Second Frostholm Decl.”) as Ex. A. On May 20, 2025, DCD issued a SEPA Final Mitigated Determination of Non-Significance (“MDNS”) and Lead Agency Status. The MDNS is attached to the Second Frostholm Decl. as Ex. B. III. AUTHORITY AND ARGUMENT A. Burden of Proof and Standard of Review. Appellants bear the burden of proof. Jefferson County Hearing Examiner Rules of Procedure (Rules of Procedure) 5.14(j). The Project’s MDNS is entitled to substantial weight and may be overturned only if Appellants can prove it is clearly erroneous. Rules of Procedure 5.14(j)(i); RCW 43.21C.090; Anderson v. Pierce County, 86 Wn. App. 290, 936 P.2d 432 (1997). A decision is clearly erroneous when the reviewing body “is left with the definite and firm conviction that a mistake has been committed.” Moss v. City of Bellingham, 109 Wn. App. 6, 13, 31 P.3d 703 (2001). Rules of Procedure 1.1(d) similarly define the standard of review. B. Appellants Must Demonstrate DCD Failed to Comply with SEPA’s Requirements and that such Failure Resulted in Prejudice. An MDNS is a SEPA threshold determination pursuant to which an agency determines that a project, as mitigated, does not have probable significant environmental impacts and hence preparation of an environmental impact statement (“EIS”) is not required. Moss, 109 Wn. App. at 14-15. Thus, the focus in an MDNS appeal is whether the challenged project, as conditioned, has probable significant impacts, and appellants bear the burden of demonstrating such impacts. Id. at 23-24, 29; WAC 197-11-330(1)(c). An impact is probable only if it is “likely or CA received 07/22/25 EXHIBIT CA-14 reasonably likely to occur.” WAC 197-11-782. An impact is significant only if it will have “more than a moderate adverse impact on environmental quality.” WAC 197-11-794. Appellants raise many issues in their Motion to Dismiss that may be legitimate frustrations of small, local governments, but are legally irrelevant to a SEPA appeal.1 To prevail, Appellants must demonstrate that SEPA’s substantive or procedural requirements have been violated. Moss, 109 Wn. App. at 23. The determination of whether a reversible error has been committed is conducted in light of the burden Appellants face to demonstrate the Project has probable significant impacts warranting preparation of an EIS. For example, in Moss, the court determined that a DNS was issued prematurely under SEPA, prior to imposition of mitigating conditions. Moss, 109 Wn. App. at 24-25. However, this was not reversible error, given the project received considerable review and was subsequently conditioned, and the appellants “have not shown that the approved project, as mitigated, remains above the significance threshold.” Id. at 25. Appellants also must demonstrate that any SEPA violations have caused them prejudice. Alleged procedural errors do not result in prejudice when appellants receive notice of a threshold determination and are able to challenge it. Moss, 109 Wn. App. at 29. Contrast with Ellensburg Cement Products, Inc. v. Kittitas County, 171 Wn. App. 691, 287 P.3d 718 (2012) (reversing a local decision upholding a DNS when the administrative appeal process violated SEPA by not providing an open-record hearing as required by RCW 36.70B.060; the SEPA 1 It is important to acknowledge here that the County truly does appreciate the attention to detail and process improvement suggestions Appellants offer. An informed and active citizenry undoubtedly supports healthy democracy and, in turn, a stronger, more resilient local government. The County is receptive to the feedback provided and is making internal operation and system improvements accordingly. However, the appropriate venue for these types of complaints (e.g., typos, website, public records, etc.) is not through a SEPA appeal where there is no evidence of a substantial environmental impact. CA received 07/22/25 EXHIBIT CA-14 appeal was conducted entirely through written submissions, preventing appellants from submitting evidence and depriving them of a meaningful SEPA review) The case at present is distinguishable from Ellensburg Cement Products because, as the following section will demonstrate, most of Appellant’s issues are not relevant to a SEPA appeal because they do not allege violations of SEPA’s requirements. To the extent SEPA violations are alleged, Appellants have failed to demonstrate SEPA’s procedural and substantive requirements have been violated and that they have been prejudiced by any such violations. C. There are no prejudicial errors in the Notice of Application (NOA) process. Reversal is not warranted. Appellants’ Motion argues the NOA had several errors. Appellants’ arguments must be rejected because they have failed to demonstrate that any error was committed, any errors were inconsequential and harmless, and many alleged violations do not relate to SEPA compliance. 1. DCD Committed No Error. Notice Requirements [Issue A]2. Appellants contend the NOA failed to comply with the notice requirements set forth in the Jefferson County Code (JCC), Shoreline Management Act (SMA), and the State Environmental Practices Act (SEPA), including JCC 18.40.190(5). Motion at 2. However, there is no evidence of deficiency identified in their motion. JCC 18.40.190(5) [Issue B.7]. Appellants argue the NOA failed to identify “other” required permits. Motion at 4. However, since the application did include notification of other permits, duplication in the NOA is not required. JCC 18.40.190(5) requires notification only when, “The identification of state, federal or other permits required by other agencies with jurisdiction not included in the application, to the extent known by the county...” (Emphasis added). 2 Issue statements refer to the numbered claims in Appellants’ motion. CA received 07/22/25 EXHIBIT CA-14 JCC 18.40.190(11)(d) and WAC 197-11-355(2)(b) [Issue B.8]. Appellants contend the NOA failed to list conditions to mitigate environmental impacts. Motion at 4. However, the NOA did list measures that would be taken to minimize or mitigate impacts, including 16.5-foot buffers from native eelgrass and removal of gear that a prior operator left in the farming area. Second Frostholm Decl. ⁋ 10, Ex. A. The NOA also states applicable policies and performance standards in the Jefferson County Code and Comprehensive Plan would be used to form permit conditions. Second Frostholm Decl., Ex. A. This is consistent with SEPA regulatory reform, pursuant to which project impacts are to be principally addressed through development regulations. Moss, 109 Wn. App. at 15-19. As such, no specific, SEPA mitigation measures were identified at the time of NOA issuance that could have been listed. Second Frostholm Decl. ⁋ 8; JCC.40.190(11)(d); WAC 197-011-355(2)(b). 2. Any Errors Are Not Prejudicial and Do Not Warrant Reversal. Case number [Issue B.1]. The NOA initially had one digit off in the case number (“SDP2024-00001” instead of “SDP2024-00006”). This was a scrivener’s error and timely corrected on subsequent documents. See First Declaration of Donna Frostholm at ⁋ 8. This is insufficient to arise to a SEPA violation, and any error was not prejudicial. Motion at 3. Public comment period [Issue B.2 and B.3]. The NOA initially had the incorrect month (“May” instead of “August”). This was a scrivener’s error and timely corrected for the public notices published in the newspaper and posted on the property. Exhibit C to First Frostholm Decl.; Exhibit A to First Carson Decl. DCD completed the comment period and received comment. Appellants do not claim to have been themselves confused or prejudiced. Motion at 3. CA received 07/22/25 EXHIBIT CA-14 Additional appeals [Issues B.11 and B.12]. The NOA correctly states the final permit decision will be made by the Hearing Examiner but inadvertently references the wrong jurisdiction for appeals post Hearing Examiner decision. JCC 2.30.130(3) correctly refers appeals of shoreline decisions under Chapter 18.25 JCC (Shoreline Master Program) to the Shorelines Hearing Board in accordance with Chapter 90.58 RCW. The subsequent Hearing Examiner decision would provide correct appeal information, and Appellants are not prejudiced. Motion at 5-6. The time for subsequent appeals is not ripe yet. The foregoing minor errors do not arise to a violation of SEPA’s requirements, and even if they did, Appellants have failed to demonstrate prejudice. Attempting to demonstrate prejudice, Appellants contend they did not get timely notice and were not able to comment on the specific mitigating conditions in the MDNS before appealing the MDNS and paying the appeal fee. Motion p. 10. However, Appellants received notice of the MDNS, filed a timely appeal, and have the ability to present evidence at the open record hearing as to the inadequacy of the mitigating conditions.3 Thus, they suffered no prejudice. Moss, 109 Wn. at 29. 3. Appellants Raise Several Complaints that Do Not Allege Violation of SEPA’s Requirements. Website Links [Issues B.4, B.5, and B.6]. Appellants argue that the NOA included website links that did not work. Motion at 3-4. Website links are not required by SEPA, and hence this cannot form a basis for reversal. File paths are now provided. Email Addresses Not Provided [Issue B.9]. The NOA solicited comments by mail, email, personal delivery, and facsimile, but did not include an email address. Second Frostholm Decl., Ex. A. Email submission is not required by SEPA. Contact information for DCD has always been provided. Appellants fail to demonstrate any prejudice. Motion at 5. 3 While Appellants’ appeal was timely, as set forth in Respondents’ motion to dismiss, it should be dismissed on the separate basis that Appellants failed to submit comments. CA received 07/22/25 EXHIBIT CA-14 Grammar [Issue B.10]. Appellants contend the NOA includes a confusing sentence structure. Motion at 5. Grammatical perfection is not required. Importantly, there was no error here; as stated above, conditions to mitigate adverse impacts are not required to be included in the NOA. Public Records [Issue B.13]. Separate pubic records request apparently did not include the NOA’s affidavit of posting. Alleged inadequacies with a public records response must be pursued through a separate process, not the Project’s SEPA appeal. Additionally, Appellants could have specifically requested this document. An affidavit of posting was timely made and was provided in Respondents’ Motion to Dismiss, First Declaration of Donna Frostholm, Ex. B. Requesting Notice Prior to Application [Issue B.14]. Appellant submitted a request via email on November 30, 2023, requesting to be notified of “any permit processes with aquaculture on these parcels”. Motion at 6. Appellants do not live within the required 300 feet required for mailing pursuant to JCC 18.40.210. Appellants’ request was not specific to the Project. Appellants have not identified any legal violations or a right to submit an open-ended request for any application processes for multiple properties, and no such right is provided by SEPA. Hence, no violation of SEPA occurred that could form a basis for reversing the MDNS. Reissuing NOA [Issue C]. Appellants allege DCD had opportunity to reissue the NOA and failed to act. Motion at 7. For the reasons set forth above, the NOA did not need to be reissued. Appellants further contention that DCD willfully violated or ignore the law are meritless. Second Frostholm Decl. ⁋ 12. CA received 07/22/25 EXHIBIT CA-14 D. There are no prejudicial errors in the MDNS process. Appellants’ motion argues the MDNS had several errors. [Issue D, E, F, and G]. Similar to the alleged errors with the NOA, Appellants fail to demonstrate prejudicial harm warranting reversal. Notice Requirements [Issue D]. Appellants contend the MDNS must comply with the notice requirements set forth in the JCC, SMA, and SEPA. Motion at 7. However, Appellants failed to demonstrate any deficiency. Appeal Filing [Issue E.1]. The MDNS correctly states that it may be appealed to the Hearing Examiner. MDNS p. 2. It also instructs appeals to be filed with DCD, although such additional filing is not required.4 Appellants do not identify any provision of SEPA that prohibits an MDNS from instructing appeals to be filed with an additional body. Motion at 7. Nonetheless, DCD appreciates this may cause some confusion and is correcting this. Even if there were error here, it was harmless because Appellants filed the MDNS appeal with the Hearing Examiner. Standing [Issue E.2]. Appellants complain that MDNS asks Appellants to describe “standing,” when this is not required a required content in an appeal statement. Motion at 7. Appellants identify no violation of SEPA from the MDNS request to include this information in an appeal statement, and regardless no prejudice resulted from it. Respondents’ Motion to Dismiss is premised on Appellants’ failure to provide comments in response to the NOA, not their failure to describe standing in their appeal statement. Content of Notice of Appeal [Issue E.3]. The MDNS allegedly failed to state that a copy of the “challenged decision” must be included with the appeal pursuant to the Rules of 4 Appellants complain that the MDNS refers to appeals being filed with the “Administrator.” Motion p. 7. This term is defined in JCC 18.10.010 as the Jefferson County department of community development director or a designated representative CA received 07/22/25 EXHIBIT CA-14 JEFFERSON COUNTY AND APPLICANT’S JOINT RESPONSE TO APPELLANTS’ MOTION TO DISMISS (WITHOUT PREJUDICE) DUE TO ERROEOUS NOTICE PROCEDURES Page 9 of 10 Jefferson County Prosecuting Attorney 1820 Jefferson Street/P.O. Box 1220 Port Townsend, WA 98368 360-385-9180 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 27 28 Procedure 3.1(b)(5). This is not a SEPA requirement, and Appellants suffered no prejudice from this alleged failure; their appeal included an (annotated) copy of the MDNS . Motion at 7. Request Appeal be Signed [Issue E.4]. There is allegedly no authority to require an Appellant’s signature on an appeal. Motion at 7. Signing an appeal is standard practice, the MDNS did not violate SEPA in requesting a signature, and Appellants suffered no prejudice from this request. Reissuing MDNS [Issue F and G]. Appellants allege MDNS had identified errors. Motion at 8. DCD issued a MDNS on May 20, 2025, reflecting a corrected appeal deadline. Appellants lament DCD did not reissue the MDNS exactly per their request, but as discussed above the MDNS as issued on May 20 does not violate SEPA. Appellants are availing themselves of a formal appeal process, and any errors are not prejudicial. Moss, 109 Wn. App. at 29. IV. CONCLUSION For the reasons stated above, Appellants’ Motion to Dismiss should respectfully be denied. RESPECTFULLY SUMBITTED this 22nd 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 07/22/25 EXHIBIT CA-14