HomeMy WebLinkAboutCL11 2025 08 18 Jefferson County Update Prior to Hearing.doc FinalJEFFERSON COUNTY’S UPDATES TO
HEARING EXAMINER PRIOR TO
HEARING Page 1 of 5
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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BEFORE THE LAND USE HEARING EXAMINER
IN AND FOR JEFFERSON COUNTY
Shoreline Substantial Development
Application, Applicant Rock Island
Shellfish (Robert Carson),
File Number: SPD2024-00006
Case No.: SDP2024-00006
JEFFERSON COUNTY’S UPDATE
TO HEARING EXAMINER PRIOR
TO HEARING
COMES NOW, Jefferson County Department of Community Development
(DCD), and offers a short update to the Hearing Examiner before tomorrow’s
hearing.
I.ADDITIONAL FILINGS
The Hearing Examiner’s Order Granting Respondents’ Motion to Dismiss
SEPA Appeal was dated August 13, 2025, and sent to the parties on August 14,
2025. Since then there have been six additional filings by former Appellant as a
party of record, Marilyn Showalter:
•Thursday, August 14, 2025 – Comments for Public Hearing (Includes
Annotated Staff Report)
•Friday, August 15, 2025 – Request to Examine Witnesses
•Friday, August 15, 2025 – Request to Order Production of VCA
•Friday, August 15, 2025 – Photos of Oyster Gear
•Sunday, August 17, 2025 – Corrected Comments for Public Hearing
•Sunday, August 17, 2025 – Basket Visibility
This is Jefferson County’s first opportunity to fully review the recent
submissions and offer any additional clarification. Jefferson County’s goal is to
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JEFFERSON COUNTY’S UPDATES TO
HEARING EXAMINER PRIOR TO
HEARING Page 2 of 5
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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provide helpful input so the Hearing may proceed as smoothly as possible.
A. DCD will address any updates to the Staff Report during the Staff
Report Presentation at the Hearing on August 19, 2025.
The final application did not propose using the shorelands. However, given the
location, DCD felt it necessary to address the adjacent shorelands. This was
because DCD wanted to ensure the shorelands were not being used unless the use
was permitted. In a good faith effort to try and problem solve a mutually beneficial
resolution, DCD recommended a condition that would balance these competing
issues – reviewing the application as submitted for development below the
Ordinary High Water Mark (OHWM) with code compliance issues associated with
the adjacent shorelands.
It is DCD’s understanding that the Applicant inquired whether a phased
approach was available for addressing compliance issues regarding the
unpermitted development in shorelands. At the time the Staff Report was
submitted by Ms. Donna Frostholm, DCD believed a Voluntary Compliance
Agreement (VCA) could be an acceptable means to address the County’s
outstanding concerns regarding the adjacent shorelands.
VCAs have separate enforcement authority under title 19 Jefferson County
Code. A VCA was sent to the Applicant for consideration. However, ultimately no
agreement was reached and the VCA was never signed. As such, the Staff Report
will need to be slightly amended to correct page 2 of 15 where it inadvertently
references a “...applicant signed a Voluntary Compliance Agreement (VCA)...”
Here, what happened is that DCD offered a VCA, which was subsequently
declined. A copy of the unsigned VCA is included with DCD’s proposed Exhibits as
#053 and is also attached here for reference as Attachment A.
Therefore, it is DCD’s position that there should be a condition addressing the
unpermitted development on the adjacent shorelands. Condition #37 in the Staff
Report attempted to address this, but will need to respectfully be addressed by the
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EXHIBIT CL11
JEFFERSON COUNTY’S UPDATES TO
HEARING EXAMINER PRIOR TO
HEARING Page 3 of 5
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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Hearing Examiner. DCD will present an alternative condition to the Hearing
Examiner at the Hearing and can provide any further clarification as requested by
the Hearing Examiner.
B. Request to Examine Witnesses
Pursuant to Hearing Examiner Rule 5.1, the right of parties of record to cross-
examine, object, and submit motions shall be at the discretion of the examiner
during public hearings. Rule 5.1. Also explicit in Rule 5.1:
The Hearing Examiner may impose reasonable limitation on the
number of witnesses heard and the length of their testimony. At the
examiner’s discretion, irrelevant or unduly repetitious testimony may
be excluded or bypassed. Id.
Jefferson County respectfully draws attention to the request for cross-
examination, which indicates a desire to examine DCD employees Donna
Frostholm and Greg Ballard, primarily around the “Showalter Annotated Staff
Report.” The Showalter Staff Report includes 67 comments ranging in level of
detail. It is currently unclear why these witnesses must be examined by a party of
record and why questioning from the presiding Hearing Examiner would not be
sufficient.
While certainly within the Hearing Examiner’s discretion, Jefferson County
hereby expresses concern that some of the examination may be repetitious and
perhaps an attempt to re-litigate issues no longer properly before the Hearing
Examiner post-SEPA Appeal dismissal. While Ms. Frostholm plans to be available
all day for the Hearing, however Mr. Ballard is no longer planning to be available,
unless specifically requested by the Hearing Examiner. Of course, Jefferson County
will make any witnesses available per request of the Hearing Examiner.
II. REQUEST FOR HEARING TO PROCEED ON TUESDAY, AUGUST
19, 2025
A few requests have now been made to continue the August 19, 2025
hearing. However, Jefferson County would respectfully request the hearing proceed
CA received 08/18/25
EXHIBIT CL11
JEFFERSON COUNTY’S UPDATES TO
HEARING EXAMINER PRIOR TO
HEARING Page 4 of 5
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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as scheduled. The August 19th hearing was noticed, and Ms. Donna Frostholm will
be available to explain the Staff Report, answer any questions, and provide any
additional information as directed by the Hearing Examiner. If the Hearing
Examiner determines it is beneficial or necessary to continue the Hearing, the
Hearing Examiner always maintains that discretion.
III. CONCLUSION
For the foregoing reasons, Jefferson County respectfully provides this short
update for the Hearing Examiner’s consideration prior to the Hearing scheduled to
begin on August 19, 2025.
DATED this 18th day of August, 2025.
JAMES KENNEDY
Jefferson County Prosecuting Attorney
Ariel Speser, WSBA #44125
Deputy Prosecuting Attorney
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EXHIBIT CL11
JEFFERSON COUNTY’S UPDATES TO
HEARING EXAMINER PRIOR TO
HEARING Page 5 of 5
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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CERTIFICATE OF SERVICE
The undersigned declares under penalty of perjury, under the laws of the
State of Washington that the following is true and correct:
I hereby certify that on the 18th day of August, 2025, I caused to be served
the foregoing JEFFERSON COUNTY’S UPDATE TO HEARING EXAMINER
PRIOR TO HEARING on the following parties via E-Mail:
Jefferson County Office of the
Hearing Examiner:
Carolyn Gallaway
Hearing Examiner Clerk
Carolyn@co.jefferson.wa.us
As a courtesy, Former Appellants:
Marilyn Showalter
Jan Wold
Marilyn.showalter@gmail.com
Adiel F. McKnight
Deputy Clerk of the Board, CMC
afmcknight@co.jefferson.wa.us
Attorney for Applicants Rock
Island Shellfish:
Jesse DeNike
Plauché & Carr LLP
jesse@plauchecarr.com
Aimee Muul
aimee@plauchecarr.com
Laura Mikelson
Paralegal, Civil Department
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ATTACHMENT A
Copy of the unsigned VCA
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JEFFERSON COUNTY
CODE COMPLIANCE
621 Sheridan Street | Port Townsend, WA 98368
360-379-4450 | dcd@co.jefferson.wa.us
www.co.jefferson.wa.us/codecompliance
VOLUNTARY COMPLIANCE AGREEMENT
July 31, 2025
Robert Carson
P.O. Box 181
Port Gamble, WA 98364
Case No.:
Parcel Numbers:
Site Address:
COM SDP2025-00006
965100009,
965100010,
965100011
No site address
Re: Voluntary Compliance Agreement
Dear Robert Carson:
Case Background
Unauthorized development has occurred on the above-referenced parcels, in violation of the Jefferson
County Code (JCC), including the Shoreline Master Program (SMP). Shoreline jurisdiction extends 200
feet landward of the ordinary high water mark (OHWM) and the shoreland designation for the three
parcels is Natural. The shoreline buffer width is 150 feet and the building setback is 10 feet. The
unpermitted development occurs within the shoreline buffer, and must be either permitted or removed.
Section 1- Summary of Violations
Violations on the three parcels include, but may not be limited to, placement of containers on the
property, installation of rock cages, placement of gravel, installation of utility lines, and stockpiling of
materials on the property. Development and uses, including ground-disturbing activities, within shoreline
jurisdiction require permits.
JCC Titles in violation:
The unpermitted development is in violation of the following:
• Chapter 18.25 JCC – SMP. JCC 18.25.020 – Applicability: The unpermitted use of the three
parcels meets the definition of development in JCC 18.25.100(4)(g).
• Chapter 18.22 JCC – Critical Areas. The SMP incorporates critical areas. At a minimum, the
proposal will need to address development within a 150-foot-wide fish and wildlife habitat
conservation area buffer and a geologically hazardous area.
• JCC 18.30.060 (Grading and Excavation Standards) and 18.30.070 (Stormwater Management
Standards). Ground-disturbing activities have occurred that would have been subject to review for
these two development standards.
• JCC 18.30.060(4) states all land-disturbing activities within critical areas require a stormwater
permit regardless of the thresholds.
Section 2: Corrective Actions with Deadlines:
This Voluntary Compliance Agreement (VCA) must be signed by the property owner and returned to
Department of Community Development (DCD) within 14 days (or by August 14, 2025). The property
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JEFFERSON COUNTY
CODE COMPLIANCE
621 Sheridan Street | Port Townsend, WA 98368
360-379-4450 | dcd@co.jefferson.wa.us
www.co.jefferson.wa.us/codecompliance
owner must also submit a schedule for removing or obtaining ‘after-the-fact’ permits, not to exceed two
years. The submitted schedule would need to be reviewed and approved by DCD by August 18, 2025.
By entering into this VCA you are acknowledging that:
a. the county may enter the property and inspect the premises as may be necessary to determine
compliance with the voluntary correction agreement;
b. you waive the right to administratively appeal the existence of the conditions and the fact that
they constituted a nuisance; and
c. If a notice of noncompliance is issued and not successfully appealed, you are subject to and liable
for any remedy authorized by this chapter, which includes the assessment of the monetary
penalties identified in the voluntary compliance agreement and an assessment of the costs
incurred by the county to pursue compliance with this chapter (such as, legal, administrative,
hearing, removal, and incidental costs), and the suspension, revocation or limitation of a
development permit.
Right to a Hearing or Administrative Appeal Waived: By entering into a voluntary correction agreement,
you voluntarily and knowingly waive the right to a hearing or administrative appeal before the hearing
examiner, under this chapter or otherwise, regarding the matter of the violation or the required corrective
action. However, a notice of noncompliance with the voluntary correction agreement may be
administratively appealed to the hearing examiner under JCC 19.35.015 or JCC 19.40.015.
Effect of Voluntary Correction Agreement. Upon entering into a voluntary correction agreement, you
admit that the conditions described in the voluntary correction agreement existed and constituted a
violation; and agree that if the director issues a notice of noncompliance, and if the notice of
noncompliance is not successfully challenged through administrative appeal, that you are liable for the
monetary penalty available under JCC 19.30.010. You are liable for the costs incurred by the county to
pursue compliance with this chapter and to abate the nuisance, including legal and incidental expenses as
provided for in JCC 19.30.020 and is subject to all other remedies provided for in this chapter.
Extension and Modification. The director may grant an extension of the time limit for correction or a
modification of the required corrective action if you have shown due diligence or substantial progress in
correcting the nuisance, but unforeseen circumstances have made full and timely correction under the
original conditions unattainable.
Failure to Meet Terms of Voluntary Correction Agreement.
(a) Notice of Noncompliance. If this department determines that terms of the voluntary correction
agreement are not completely met, the director may issue a notice of noncompliance. The notice of
noncompliance shall also include the monetary penalty to be imposed based upon the failure to
comply with the voluntary correction agreement.
(b) Appeal. Any person responsible may appeal the facts and conclusions described in the notice of
noncompliance as provided by JCC 19.40.015
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EXHIBIT CL11
JEFFERSON COUNTY
CODE COMPLIANCE
621 Sheridan Street | Port Townsend, WA 98368
360-379-4450 | dcd@co.jefferson.wa.us
www.co.jefferson.wa.us/codecompliance
(c) Abatement, Costs, and Penalties for Noncompliance. If the director issues a notice of
noncompliance and the notice of noncompliance is not successfully challenged through appeal as
provided by JCC 19.40.015, then:
(i) The department may abate the nuisance in accordance with this chapter without the person
responsible being issued a notice of violation, stop work order, or notice of violation and order
of abatement;
(ii) The person responsible shall be assessed a monetary penalty commencing on the date set
for correction in the notice of noncompliance and thereafter, in accordance with
JCC 19.30.010 or the penalty provisions of the voluntary correction agreement, plus all costs
incurred by the county to pursue compliance with this chapter and to abate the nuisance in
accordance with JCC 19.30.020.
(iii) You may be subject to other remedies authorized by this chapter.
If you agree to these terms, please indicate your agreement by signing and dating below. Thank you for
your cooperation.
Respectfully,
Code Compliance Coordinator
Jefferson County
621 Sheridan Street
Port Townsend, WA 98368
Phone 360-379-4462
I agree to the terms outlined above.
NAME Date
_______________________________________________________________________________
CA received 08/18/25
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