HomeMy WebLinkAboutAP18 Showalter SMA Cmts SDP 2024-00006M A R I L Y N S H O W A L T E R
1596 Shine Road, Port Ludlow, WA 98365
marilyn.showalter@gmail.com, 360-259-1700
Showalter SMA Cmts
SDP 2024-20006 Rock Island - 1
Aug 14, 2025
Honorable Gary N. McLean
Jefferson County Hearing Examiner
Jefferson County, Washington
carolyn@co.jefferson.wa.us
Dear Hearing Examiner McLean:
Re: Comments on Rock Island Shoreline Application SDP 2024-00006
Public Hearing, August 19, 2025
Mr. Carson began developing his oyster operation before obtaining an exemption or permit, in
violation of the SMA. Instead of requiring Mr. Carson to remedy his violations before he can get
a permit, the County simply scoped away the location of his violations from the “site” for which
he was applying. This was error and violates the SMA. But before even getting to that issue, the
case should be dismissed, due to noncompliance with notice requirements. The Applicant bears
the burden of showing compliance with the SMA. This he cannot do.
DESIGNATION OF DOCUMENTS
I incorporate by reference all documents so far posted in the Hearing Examiner case file. I will
cite and refer to specific documents throughout these comments. In addition, I am adding some
documents as attachments, most notably an Annotated Staff Report showing my (cryptic)
comments on specific passages of the Staff Report. The comments are cryptic in order to be
viewable in pdf; many are expanded in the comments that follow.
These comments are organized as follows:
I. Errors in noticing violated the law and preclude fair citizen participation
II.Scoping down of the “site” violates the law and is an abuse of County authority
III.County review and conditions imposed do not comply with the SMA
IV.Recommendation: Dismiss or deny permit, without prejudice, under JCC 2.30.120.
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I. ERRORS IN NOTICING VIOLATED THE LAW AND PRECLUDE FAIR
CITIZEN PARTICIPATION
The number and accumulation of errors in providing notice of this proceeding preclude fair and
sufficient public participation in this case. Neither I nor my neighbors have been properly
informed of the Application, and information has been missing, inaccurate, misleading, or
insufficient to the point where I (and others) cannot make fully informed comments.
A. The Notice of Application (NOA) Does Not Comply with the Law
This issue has been litigated but not yet resolved. EXHs CA-07, CA-26, CA-30. To summarize,
the
NOA:
• was posted at the dead-end of a non-public road where no vehicular or pedestrian traffic
would see it;
• is titled with the wrong case number;
• provides a comment deadline two months earlier than its issue date;
• fails to provide an email address for people to comment by email;
• includes information links that lead nowhere;
• omits conditions being considered;
• includes incorrect information regarding appeal; and
• was not sent to one person (me) who explicitly requested it in advance.
To this list I add:
• At least 15 people in the neighborhood wrote in to say they had not seen the NOA and a
new one with adequate comment period should be issued and posted where people could
see it, i.e., on Shine Road. EXHs CL05, pp 49-62, CA-22.
• The Notice of Public Hearing was posted on Shine Road, which is strong evidence that
the County acknowledges that the posting location of the NOA was deficient.
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• A Jefferson County traffic count for one week in July of 2018 indicates that 1996 vehicles
traveled on Shine Road (both ways), or roughly 8000 vehicles in a 30-day period (seven
years ago). Shine-Road-Traffic-Study-2018-Appendices-A-D2, pp 85. No doubt, this
included many duplicate vehicles/people, but it often takes a couple of trips to notice a
sign, or to stop the car, get out, and read the sign. In any event, these numbers are a
strong indication that the posting of the NOA at the dead-end of Killapie Beach Road
missed a lot of potential viewers and commenters. We will never know who and how
many people might have contributed relevant comments. The only action that can make
up for this loss is posting a new NOA with a new 30-day comment period.
B. The Notice of Public Hearing Contained Misleading Information
The Notice of Public Hearing, posted on July 30, 2025, states:
To view the case file, including application and staff report, go to
www.co.jefferson.wa.us – Services – Laserfiche web portal (username and password
is: public) – Board of Commissioners – Boards and Committees – Hearing Examiner –
2025 –Rock Island (Emphasis added.)
1. The Staff Report was not even dated until August 2, 2025. EXH CL-10, p. 14. It was not
available, as stated, when the notice was issued and posted.
2. The instructions for finding information are both exceedingly long and exceedingly
cryptic. It takes eight steps to get to a list of documents, requiring a person to keep
looking flipping back and forth to find out where to go next. There are no verbs, so one
needs to be already familiar with how to navigate websites.
C. The Staff Report Was Not Available, as Required, 14 Days Before the Public
Hearing
1. Jefferson County Hearing Examiner Rule 4.2, “Departmental Reports,” requires:
Departments shall prepare reports for cases under review by the examiner.
Departmental reports shall be made publicly available at least 14 days prior to a
Hearing or Special Hearing.
Fourteen days before the scheduled public hearing is August 5, 2025.
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2. If one managed to get to the Rock Island file, one could not find the Staff Report until
August 8, 2025, but even then, it was in one of more than 100 documents, including, e.g.
the following:
,
If you can’t guess, the Staff Report is in the 111 -page document labeled “CL03-08 05 Witness
and Exhibit List,” pp 5-19. It was posted online on August 8, 2025.
3. A document with a title “Staff Report” was not posted online until the afternoon of
August 11, 2025, eight days before the public hearing, but even then, it was still
captioned as a SEPA Appeal document.
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4. It is true that the first version of the Staff Report (the one embedded in the County’s
Wit ness and Exhibit List, CL-03 08 05) was submitted to the Hearing Examiner ’s office
by August 5, 2025, fourteen days before the hearing. But it was not publicly available,
i.e., posted online until August 8. Further, if a person (like my neighbor, Sue Corbett),
inquired of Donna Frostholm, the only person or contact information supplied in the
public hearing notice, as to how to find the staff report, one would receive an out-of-
office message through August 18, 2025, with no other contact supplied. Thus, a dead
end.
From: Sue Corbett <suec71@gmail.com>
Date: Mon, Aug 11, 2025 at 12:57 PM
Subject: Re: The Rock Island Case
To: <dfrostholm@co.jefferson.wa.us>
Re: Rock Island Case
Hello Donna,
The notice of public hearing says there is a staff report online. Can you point me to
where it is?
Thank you,
Sue Corbett
31 Churchill Lane, Port Ludlow
suec71@gmail.com
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I, too, got an automatic reply on August 4, 2025, regarding a different document.
So it appears that Ms. Frostholm was unavailable from August 4 – 18, the day before the
public hearing, leaving no contact information.
D. The Staff Report is Missing a Critical Piece of Information: Condition 37, the
“Voluntary Compliance Agreement.”
In a small bombshell, the Staff has alluded to a “Voluntary Compliance Agreement” (VCA),
without any more details: no dates, details, email history, or attached exhibit. As far as I can tell,
in the whole casefile, this VCA is mentioned for the first time, twice, on pages 8 and 14 of the
Staff Report, EXH Cl-10:
Unpermitted development occurs in the adjacent shorelands. The development
on the three parcels owned by the applicant is within the shoreline buffer. To
address the violation, the applicant has signed a Voluntary Compliance Agreement
(VCA) with the county, which allows the applicant time to either obtain 'after-the-
fact' permits or remove the development from the properties. Compliance with
the VCA is addressed as a permit condition in this staff report. (Emphasis added.)
And
(37) The Permittee shall implement the Voluntary Compliance Agreement, which addresses the
unpermitted development on three upland parcels associated with this shoreline application.
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There are major revelations in these two paragraphs, but also major mysteries:
Revelations:
• The County and Applicant apparently admit to “violations” on the uplands.
• The VCA allows performance after issuance of the permit in this case.
Mysteries:
• What violations are admitted? Under what code, WAC, or RCW provisions?
• Are these violations under the Shoreline Management Act and JCC 18.25?
• What is the Applicant required to do?
• Will there be any public process into what is to be done or not done under the VCA? Why
isn’t that this process, i.e., this public hearing in SDP 2024-00006?
• When was this agreement signed and who signed it?
• What discussions led to this agreement, and why aren’t emails or notes of meetings and
telephone calls included in the County’s exhibits in this case, as they are for other emails
and notes in this case?
• Did the County deliberately decide to omit the VCA and related documents from this
proceeding? Or was it inadvertent.
• Where is this VCA? I searched for it under multiple terms in both this case file and also
in the general Laserfiche system and cannot find it.
If the County “hiding the ball,” it’s a perfect example of how difficult it is for citizens to
participate in cases that matter to them. Clearly, the County and the Applicant have known all
about this for some (unknown to me) period of time. And clearly, such and agreement does not
arise out of whole cloth but requires communications and documents. Also, clearly, it appears to
relate to issues I have raised as an Appellant and Party of Record regarding violations and the
need to address them, of which the County is obviously aware. What reason can the County give
for not making this information available?
I will make this request again in a separate filing, but I request the Hearing Examiner to order the
County to provide to the public and to me personally the VCA and all correspondence, (external
and internal) emails, notes, and drafts leading up to it. I further request that this case be held
open for 14 days after I have received all of the requested information and been allowed to file
comments on it.
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Finally, in summary of this section, both I and the public have been harmed by the lack required
information in this case. We know our bay, we walk the beach, and we pick up beach litter,
including oyster gear. We care about safety, including fire safety. The public cannot comment if
they don’t know about an issue. (Nor can I. The VCA not being attached as an exhibit is a good
example.) The public can’t even weigh in if they don’t know about a case at all. And the public
interest and the hearing examiner ’s ultimate decision suffer when people don’t contribute
comments or have to contribute incomplete comments, due to lack of notice or unavailability of
information.
The burden is on the Applicant to show compliance with the procedural requirements of the
Shoreline Management Act. It has not and cannot carry that burden with respect to the posting
and content of the NOA, the public availability of the Staff Report, the missing VCA, and the
various online dead-ends and misdirections as outlined here and in Appellants’ pleadings.
B. Scoping down of the “site” violates the law and is an abuse of County authority
1. Late 2023 to Spring 2024: focus is on whole parcels
Carson began in late 2023 to seek a permit (or exemption) for the purpose of operating an oyster
operation in Squamish Harbor. From then until sometime around April or May of 2024, the
proposal was for the three parcels owned by Mr. Carson, which parcels include the tidelands.
EXH AP-08, pp 17-19. These tidelands have no separate parcel number or tax number, though,
like many parcels, it is divided into different classifications.
However, even before seeking permission from the County, Mr. Carson was engaged in a number
of developments and activities, on both the upland and tideland portions of his property relating
to commercial oystering. Per a letter from Jesse DeNike, Mr. Carson’s attorney, EXH AP-08 p. 2:
The tidelands were sold to Mr. Carson’s family in 2020, and Mr. Carson immediately
began resumption of shellfish farming activities notwithstanding delays and disruptions
caused by the COVID-19 pandemic. Among other things, Mr. Carson purchased oyster
seed for a viability set to determine the growth rate of oysters on the tidelands. Exhibit E
(receipt dated June 19, 2020 showing purchase of oyster seed from the Jamestown
S’Klallam Tribe for Mr. Carson).
From a February 18, 2025 email, Log Item 025, even using a crane:
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And from a December 23, 2023 email from Mr. DeNike attorney:
All of these communications were in furtherance of the request for a permit or exemption for thw
whole properties, uplands and tidelands.
2. Carson’s activities were unlawful
The problem was that Mr. Carson’s activities were unlawful. There was no ongoing oyster farm
to “continue,” because it had been abandoned in 2017. Carson (or his mother) did not buy the
property until 2020. The County correctly ruled that Carson would need to apply for a permit for
“new” commercial shellfish operations. This meant that his activities, which clearly qualified as
“development,” violated the Shoreline Management Act, as all of his property is within the SMA
buffer.
Now the problem became what to do about these violations.
3. The “problem” is simply scoped away
Not only were Mr. Carson’s developments unlawful, but it would be difficult to impossible to
approve them retroactively, as is sometimes done. That is because the road and property is
closed to traffic and development, due to unstable soil. Log Item 009. No traffic or development
is allowed.
Instead of requiring Mr. Carson to fix things before he could get a permit, there were apparently
discussions, leading to the following from Mr. DeNike, April 2024, Log Item 003, p. 1:
Thank you again for your email. Yes, Rock Island Shellfish would like to proceed with
limiting the authorized substantial development under this application to that below
ordinary high water mark (OHWM).
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And there, the trail in the file goes cold until the MDNS is issued, identifying the “site” in a
tortured separation of the tidelands from the uplands.
4. Limiting the “site” to the tidelands violates the SMA.
Mr. Carson’s parcels, of which the tidelands are part and parcel, are within a Critical Area;
Shorelines of State Significance; and a Fish and Wildlife Conservation Area. As such: As such,
under JCC 18.25.250 (1) and (9):
When shoreline development or redevelopment occurs, it shall include restoration and/or
enhancement of ecological conditions if such opportunities exist;
. . .
Uses that have the potential to cause significant erosion and sedimentation due to
excavation, land clearing, or other activities shall be strictly regulated to prevent adverse
impacts to shoreline functions and processes; (Emphasis added.)
And:
18.22.660 Mitigation.
(1) When Required. Mitigation is required for FWHCA buffer reductions greater
than 25 percent but less than 50 percent of the standard buffer widths. Applications for
FWHCA buffer reductions greater than 50 percent may pursue a financially bonded
critical areas stewardship plan or be approved for buffer reductions greater than 50
percent through a hearing examiner variance or reasonable economic use exception in
accordance with this chapter. All unavoidable impacts to FWHCA require mitigation.
(2) FWHCA Mitigation Sequencing. The overall goal shall be no net loss of functions,
natural processes, or area within a FWHCA or a FWHCA buffer. All regulated
development, uses, and activities in a FWHCA or an associated buffer shall be
mitigated in the following order:
(a) Avoiding the impact altogether by not taking a certain action or parts of an
action;
(b) Minimizing adverse impacts by limiting the degree or magnitude of the action
and its implementation;
(c) Rectifying the adverse impact by repairing, rehabilitating, or restoring the
affected environment to the historical condition or the condition existing at
the time of the initiation of a project;
(d) Reducing or eliminating the adverse impact over time by preservation and
maintenance operation during the life of the action;
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(e) Compensating for the adverse impact by replacing, enhancing, or providing
substitute resources or environments;
(f) Monitoring the required compensation and taking appropriate corrective
measures when necessary.
These are the provisions the County should have used, in this proceeding, to ensure compliance
with the SMA (and public input into the process).
What the County has done sets a terrible precedent: If there’s something you’ve done wrong on
the property you want to develop, do it now, and then ask for a permit to develop the portion of
your property where you didn’t violate the law.
Supposing someone builds a small factory (or a large solar panel structure with electricity) on a
five-acre zoned residential, and then applies to build a house on an unaffected acre. Would the
County approve the house permit and worry about the factory later?
Whatever is in the “voluntary” agreement, it should be replaced with a binding agreement that is
first open to review in this proceeding.
IV. OTHER CONDITIONS IN THE STAFF REPORT NEED CORRECTION,
AMENDMENT OR IN ONE CASE, DELETION.
I will let the comments in my Annotated Staff Report, attached, speak to other items in the Staff
Report. However, there is one Condition that’s very important to remove, and that is Condition
34. It would allow an unreviewable ½ acre expansion of Mr. Carson’s operation without any
environmental or other review or studies. It does not apply to new permits.
V. RELIEF REQUESTED
This case should be dismissed without prejudice or the application should be denied without
prejudice.
Respectfully submitted August 14, 2025
Marilyn Showalter
Marilyn Showalter
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