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HomeMy WebLinkAboutRR-44 Rathvon Pre-Hearing BriefRESPONDENTS’ PRE-HEARING BRIEF - 1 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 BEFORE THE LAND USE HEARING EXAMINER IN AND FOR JEFFERSON COUNTY In re Appeal of Rathvon Shoreline Conditional Use Permit, DCD File No. SDP2023-00020 RATHVONS’ PRE-HEARING BRIEF I. INTRODUCTION On April 10, 2025, Jefferson County (“County”) issued a Shoreline Conditional Use Permit (“SCUP” or “SCUP Decision”) for Mr. and Mrs. Rathvon to construct a single-family home (“Project”) on property that has been in their family for 54 years. On April 23, 2025, Appellants filed a notice of appeal challenging the SCUP Decision predominantly on procedural grounds and alleging the County failed to obtain enough information from the applicants to analyze the potential impacts of the Rathvons’ Project on the shoreline environment. Appellants also allege that the SCUP Decision should have included road work on Twana Way that the Rathvons did not even propose. Appellants have not met their burden to prove that the SCUP was issued in error, without substantial evidence, or in a manner contrary to law. Therefore, the County’s SCUP Decision should be upheld. The SCUP Decision was based on multiple technical reports and was the product of an iterative process where the County ensured it had enough information to make its decision. Contesting the sufficiency of the application and the County’s decision-making, Appellants assert, but have provided no evidence to show, that impacts to the shoreline environment will CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 2 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 result from the Project or that road maintenance is necessary to construct the Rathvons’ single- family home. The County properly excluded Twana Way from its SCUP decision because the Rathvons had not proposed any improvements to Twana Way and, even if the Rathvons had, such improvements are not necessary to build the Rathvons’ home. The County’s SCUP decision is also based on sufficient, adequate information obtained from the Rathvons over a period of three years and three separate permit application submittals. In accordance with the law, the County based its SCUP decision upon consideration of both the application and information obtained during the permitting process. To the extent the Hearing Examiner finds the record before the County to be incomplete, this procedural error can be cured by evidence presented at the hearing. Finally, the County ensured that the Rathvons’ proposal complies with the County’s SMP regulations, which are mandatory requirements and specifically implement the SMP policies upon which Appellants rest their case. Appellants cannot meet their burden to prove that the SCUP Decision was issued in error or in a manner contrary to law. Therefore, the County’s CUP Decision should be upheld. II. FACTS 1 A. The Rathvon’s Single-Family Home Proposal The Rathvons own a parcel of land at 660 Twana Way in Quilcene, Washington, that has been in their family for more than 54 years and has sat undeveloped while the neighborhood has grown up around it (“Property”). Exs. CL19, DCD-12 at 1. In 2022, the Rathvons began working on a design for a single-family home on their waterfront property. The Rathvons’ architect designed a 3,791-square-foot, single story, 3-bedroom single-family residence with a lower level.2 Ex. RR-29. The septic system proposed for the Project is a 1 All exhibits referenced in this Fact Section refer to the numbering listed on the Parties’ respective Exhibit List and Rebuttal Exhibit lists, filed on August 15, 2025 and August 22, 2025, respectively. 2 The original plan for the home included room for a potential additional dwelling unit (“ADU”). Ex. DCD-03 at 71. However, an ADU is no longer included in the Project. CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 3 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 gravity system with a drain field and is overdesigned for a 5-bedroom home. Testimony of Everett Sorensen. The drain field is located no closer than 150 feet to the ordinary high watermark (“OHWM”). Ex. DCD-3 at 86. Project construction will adhere to the conditions in the SCUP Decision, such as installing a silt fence and limiting construction activities to at least 150 or 160 feet from the OHWM. Ex. DCD-11, Conditions 4, 5, 8. The design of the home will also comply with the 2019 Ecology Stormwater Management Manual for Western Washington and the identified BMPs in the CUP Decision. DCD-11, Condition 9. The home will be served by a private well. Ex. DCD-03 at 58-59. The Property is approximately 5.5 acres, slopes down to Dabob Bay, and is surrounded by residential parcels. Ex. DCD-12 at 1. The Property is currently “well vegetated with forested habitats dominated by native plant species.” Id. The Rathvons’ project is proposed 160 feet above the OHWM in a portion of the shoreline designated as Natural in the County’s Shoreline Master Program (“SMP”) and is within a mapped geologically hazardous area. Id. The property is zoned Rural Residential 1 unit per 5 acres. Id. Access to the Property is from Twana Way— a road that has been in existence since at least the early 1970s. Exs. A1 at Ex. I, DCD-08 at 7- 15, CL18, CL19. Construction vehicles have successfully used Twana Way to build and expand 8 homes, as recently as early August 2025, without causing any slope stability issues. Exs. RR-31, RR-38. The Rathvons’ architect designed the home to reduce disturbance to the site by nestl[ing the home] in the slope of the site using the topography to enter the home on the upper level and reduce the home’s apparent size from the road. On the water side the main slope falls away leaving open space to place the daylight basement.” Ex. RR-29 at 2. The home has been designed so that a minimum of the home is exposed on both the landward and waterward side of the home. Id. The home is placed at the maximum shoreline setback, and the Project has not requested any exceptions from the shoreline setback requirements. Id. In retaining as many existing trees as possible on the Property, using dark colors for the home’s CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 4 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 exterior, and employing a roof with a low slope, the architect has designed a home that will blend into the forested surroundings. Id. B. The Appellants’ Communications with the Rathvons When Appellants purchased their home at 161 Twana Way in 2015, they reached out to the Rathvons to request that Appellants have access to Dabob Bay through the Rathvons’ undeveloped property. Ex. RR-22. Appellants explained they were cold water swimmers and that Dabob Bay was closer than their then-current swimming location at Fort Warden. Ex. RR- 21. Mr. Rathvon will testify that he denied the request. In the fall of 2023, the Rathvons were working with their neighbors along Twana Way to discuss a collective effort to repair and maintain that road. Ex. RR-19. Mr. Rathvon will testify that the purpose of discussing the road with the neighbors was to make a more easily traversable road, and to have a formal maintenance program—not because repairs were required. In September 2023, the Rathvons contacted all of their neighbors along Twana Way to invite them to a gathering to discuss the condition of Twana Way. Ex. RR-17. The Rathvons and three neighbors had met with two excavation companies to walk Twana Way to discuss various scopes of work for road repair. Ex. RR-16. The Rathvons wanted to discuss road maintenance “in a neighborhood group setting so that all of us may collectively hear each other’s issues and/or concerns relating to the road improvement possibilities including different scopes of work, methods of repair, costs, and ongoing maintenance.” Ex. RR-17. At the meeting, the Rathvons provided two different construction scopes of work to illustrate the various cost drivers and outlined possible factors to consider in how to apportion costs for work and ongoing maintenance on Twana Way amongst the neighbors who used Twana Way. Ex. RR-16 at 12. The Rathvons’ presentation was clear that “widening of the road as a general matter was not considered” for either of the two construction approaches. Id. at 8. A few weeks after the meeting, Appellants were characterizing the proposed work on Twana Way as constituting a “big push to widen and ‘improve’” the road. Ex. RR-18 at 9. CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 5 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 Suddenly, Appellants were requesting that if the road work “discussions continue, [they] would appreciate an environmental impact report.” Id. at 10. Appellants’ statements were not consistent with the parties’ communications in the fall of 2022 when Appellants had emailed the Rathvons to discuss coordination in reached out to the Rathvons to discuss coordinating road repairs Appellants were planning. Appellants indicated they “are not directly affected by the road conditions” but “a section of the damaged road runs through our property.” Ex. RR-19. Appellants asked whether the Rathvons “were considering additional road repair below our area.” Id. If so, Appellants suggested, “it could make sense to have all the repair activities coordinated.” Id. The Rathvons replied that they would be interested in coordinating and that the Rathvons had been working with other neighbors along the road to discuss possible maintenance work. Ex. RR-19. By late summer 2023, Appellants had obtained a quote for “full reconstruction” of Twana Way through Appellants’ property. RR-20. Appellants provided this information to the Rathvons and indicated they were “looking forward to the group meeting to help figure out the best solution!” Ex. RR-20. Mr. Rathvon will testify at the hearing that, aside from small repairs done by the Glomsets, the only significant road work on Twana Way in recent years has been done by Appellants. Mr. Rathvon will also testify as follows: After the fall of 2023, discussions amongst the neighbors regarding road maintenance did not continue because the Rathvons could not achieve consensus. The Rathvons did not include Twana Way maintenance and repair work as part of their proposal to build their home. The Rathvons viewed this as a community issue to address existing road conditions; not as part of their single-family home project. C. County’s Review of the Rathvons’ Single-Family Home Proposal Over a nearly 3-year period, the Rathvons filed three sets of permit applications and provided the County with numerous technical analyses from qualified experts in their field, such as analyses of the septic system, multiple geotechnical reports, stormwater analyses, a stream report, and a cumulative impacts report. Exs. DCD-03 at 9-16, 55-63, 67-70; DCD-08; CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 6 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 DCD-12 at 1. Some of these analyses were prepared at the request of the County in response to public comments on the SCUP Decision. Exs. DCD-08, A1 at Ex. I. 1. The 2022 Applications On July 19, 2022, the Rathvons submitted an application for on-site sewage disposal for their Project. Exs. DCD-03 at 84, RR-11. Attached to this application were conceptual design drawings and a geotechnical hazard assessment for the septic system. Exs. RR-11, DCD-14. On October 25, 2022, the County held a pre-application meeting with the Rathvons to discuss the Project—a 3-bedroom, single-family home with a septic system. Ex. DCD-03 at 72. The pre-application meeting notes detailed the permits and approvals that would be needed for the project, which included a site development review permit application, a master permit application, an SCUP application, stormwater review, site plan, design drawings, and a Notice to Title for critical areas. Ex. DCD-03 at 73. The Rathvons’ proposal did not include work on Twana Way. On December 2, 2022, the Rathvons submitted a permit application, a Site Development Review application, including an application for the required buildability analysis and legal lot of record determination. Ex. DCD-03 at 55-59. The application did not include work on Twana Way. On December 19, 2022, Peninsula Environment completed their stream assessment for the Property. Ex. DCD-03 at 30-54. 2. The 2023 Applications The Rathvons continued to work on their application materials in 2023. On May 18, 2023, the Rathvons submitted the SCUP application and the Shoreline Development application. Ex. DCD-03 at 11-16, 67-70. These application materials did not propose any maintenance activities for Twana Way. On June 1, 2023, the Rathvons recorded the Notice to Title for geologically hazardous CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 7 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 area development requiring a geotechnical report. Ex. DCD-03 at 80-82. The Rathvons also paid the permit fees at this time. Ex. DCD-03 at 64, 83. The County recorded November 7, 2023, as the date the County received the SCUP application. Ex. RR-28. On November 23, 2023, the County issued the septic permit. Ex. DCD- 03 at 84-88. 3. The 2024 Applications On June 24, 2024, the Rathvons submitted an application to the County for determination of potable water. Ex. RR-4. On June 24, 2024, the Rathvons provided the County with a Stormwater Calculation Worksheet. Ex. DCD-03 at 17-26. On July 8, 2024, the Rathvons submitted an additional permit application. Ex. DCD-03 at 9-10. None of these application materials proposed any work on Twana Way. On July 9, 2024, the County determined the Rathvons’ SCUP application to be complete. Ex. RR-28. On August 15, 2024, the Rathvons submitted a Stormwater Calculation Worksheet. Ex. DCD-05. On August 28, 2024, the County issued the Notice of Application for the Project and noticed a public comment period that closed on September 27, 2024. Ex. RR-28. 4. Appellants’ Comments on the 2024 Application On September 27, 2024, Appellants filed a public comment on the Rathvons’ Project. Ex. DCD-06. Appellants’ public comment letter inserted the Rathvons’ work in October of 2023 with their neighbors to address the current conditions on Twana Way into the Rathvons’ SCUP permit process. Ex. DCD-06 at 8. The comment letter mischaracterized the Rathvons’ efforts to coordinate maintenance activities on Twana Way—maintenance activities Appellants were themselves separately pursuing and that Appellants sought to coordinate with the Rathvons—as an “extensive road improvement or renovation plan” that the Rathvons had represented would be necessary to enable safe and reliable access for service and emergency CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 8 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 vehicles.” Ex. DCD-06 at 8-9. Like Appellants’ allegations in this appeal, their comment letter faulted the Rathvons’ SCUP application for, among other things, not providing renderings of the home, a cumulative impacts analysis, a stormwater analysis, the analysis required by JCC 18.25.630(12) and (16), and a description of how the Project complies with the SMP and development standards. Ex. DCD-06 at 12-16. Appellants also submitted a letter from Cresent Environmental’s licensed geologists taking issue with Stratum Group’s geotechnical reports. Ex. DCD-06 at 16-20. Appellants did not provide any other technical studies or evidence to show that the Rathvons’ property would have environmental, pedestrian, or transportation impacts. On November 6, 2024, after reviewing the public comments received on the Project, the County requested the following additional information from the Rathvons: clarification regarding whether the Rathvons intended to do any road work on Twana Way, the construction means and methods that would be used to build the home, a revised geotechnical report that complied with JCC 18.22.905(2) and 18.22.945, and a cumulative impacts analysis. Ex. A1 at Ex. D. The County paused review of the SCUP application until the Rathvons provided the requested information. Id. 5. The 2025 Response to the County’s Request for Additional Information On January 30, 2025, the Rathvons responded to the County’s information request. Ex. DCD-08. The Rathvons clarified that “we are not proposing to alter or expand the road, including ‘cut and fill’ activities or removal of trees. However, road maintenance may be required during and/or after the construction process due to the use of the road by construction vehicles. Ex. DCD-08 at 3. The Rathvons also provided a revised geotechnical report and a cumulative impacts analysis. Ex. DCD-08 at 19-41, 43-66. 6. County’s Review of Twana Way Stability Around this time, the County asked the Rathvons to provide a geotechnical analysis of the stability of Twana Way. Ex. DCD-09. After reviewing this information, the County CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 9 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 determined that the “existing access road”—i.e., Twana Way—was sufficient for construction of the Rathvons’ residence. Ex. A1 at Ex. I. The County had determined that any proposed modifications to Twana Way should fall within the purview of the County’s Critical Areas Ordinance. Id. The County also determined that the work on Twana Way would qualify as road maintenance, which is exempt from the County’s critical areas ordinance pursuant to JCC 18.22.230(4)(c). Id. The County then requested that the Rathvons submit the information requested in JCC 18.22.230(5) should they plan any work on Twana Way so that the County could confirm the application of the exemption. Id. 7. The Permit Issues On April 10, 2025, the County issued the SCUP for the Project. Ex. DCD-11. The SCUP contained 11 conditions. Id. Condition 7 specifically states that the SCUP does not authorize any modifications to the existing access road. Id. Conditions 4, 5, 8, and 9 require the Rathvons to install a silt fence between 150 and 160 feet from the OHWM to prevent sediment from the uplands construction from entering the bay, to refrain from construction activities within the 50-foot buffer for the off-site stream, to ensure that all construction activities are conducted at least 150 or 160 feet from the OHWM, and to follow the Department of Ecology’s 2019 Stormwater Manual and the stormwater management best practices identified therein. Id. On April 23, 2025, Appellants appealed the SCUP Decision to the County’s Department of Community Development. Ex. CA01. III. ARGUMENT AND LEGAL AUTHORITY Appellants cannot meet their burden to prove by a preponderance of the evidence that the County’s SCUP Decision was not supported by substantial evidence and was an incorrect application of the law. JCC 2.30.100(3); JCC 2.30.120(1); Hearing Examiner Rules of Procedure § 5.14(j)(iii). “Substantial evidence” is evidence “sufficient ... to persuade a fair- minded, rational person of the truth of a declared premise.” Helman v. Sacred Heart Hosp., 62 CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 10 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 Wn.2d 136, 147, 381 P.2d 605 (1963); see Guijosa v. Wal–Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001). Additionally, Appellants cannot meet their burden to prove the shoreline permit was inconsistent with the requirements of the SMA and the County’s SMP. WAC 461-08-500 to -505; Donovan v. Dep’t of Ecology, SHB No. 10-024, p. 19 (July 13, 2011). Therefore, the Shoreline CUP Decision must stand. A. Twana Way Maintenance Is Not Part of the Rathvon’s Single-Family Home Project Appellants allege that the County impermissibly excluded an analysis of shoreline impacts associated with road work on Twana Way. Ex. CA01 at ¶¶ 4.4–4.6. The Shorelines Hearings “Board has continuously ruled where buildings or structures, which constitute substantial development straddle the shorelines; those buildings or structures are subject to the regulations and policies of the SMA through the permit system.” Laccinole v. City of Bellevue, SHB No. 03-025, 2004 WL 501813 (Order Granting Summary Judgement and Order of Remand, Mar. 10, 2004). When a proposal includes physical elements both within and outside of the 200-foot shoreline jurisdiction established by the SMA and SMP, the local government should review the “full, unified, and integrated physical project” both inside and outside of the shoreline jurisdiction “to determine to what extent those portions of the project outside the shoreline] may adversely impact the shoreline of the state.” Citizens to Stop the SR 169 Asphalt Plant v. King County, SHB No. 22-007 at 88, 2023 WL 2977069 (Findings of Fact and Conclusions of Law and Order, Apr. 12, 2023). A physical element outside of the shoreline jurisdiction is part of the “full, unified and integrated physical project” when the element is an integrated and non-severable part[] of the total development.” Bahia v. Dep’t of Ecology, SHB No. 95-34, 1996 WL 538822 (Final Findings of Fact Conclusions of Law and Order, Jan. 9, 1996). For residential development, a project element is integrated and non-severable if the element is a necessary part of the plan to construct a residence or is necessary for the home to CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 11 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 function. See Manza v. Shorelines Hearings Board, 128 Wn. App. 1023, 2005 WL 1540942 at 8 (June 28, 2005); Bahia v. Dep’t of Ecology, SHB No. 95-34, 1996 WL 538822 (Final Findings of Fact Conclusions of Law and Order, Jan. 9, 1996). For example, in Manza, the Court of Appeals overturned the Shorelines Hearings Board’s determination that review of a residential project had been improperly piecemealed. The City of Lakewood issued a building permit to the Manzas for a 6,303-square-foot single family home on a shoreline property, which involved a sewage tank, and retaining walls.3 Manza, 128 Wn. App. at *2. While “their residence was under construction, the Manzas applied for State Environmental Protection Act, Chapter 43.21C RCW(“SEPA”) review and an SSDP to construct a recreational dock on their property and for a building permit to construct a bulkhead.”4 Id. The neighbors alleged that the dock and bulkhead were “so integrally related to the construction of the residence” that these elements should have been considered in one permit and that the City had impermissibly piecemealed review of the project. Id. at *7. The Board agreed and determined that the construction of the residence, retaining walls, sewage system, dock, and bulkhead constituted one project. Id. at *8-* 9. The Court of Appeals reversed, finding that “completion of the Manzas' residence and sewage tank was not dependent upon the development of a dock and bulkhead even though construction of the residence was not fully completed when the Manzas applied for permits to construct the dock and bulkhead and even though the dock and bulkhead were to be constructed on the Manzas' property.” Id. at *8. However, in Bahia, the Board upheld the Department of Ecology’s denial of a SCUP for construction of a bulkhead where the placement of the residence and accessory structures necessitated the bulkhead and the residential structures had not been analyzed as part of the 3 The Court of Appeals found that the sewage tank was properly installed pursuant to a sewer service permit issued by Pierce County Public Works and Utilities and that the City did not have jurisdiction over utilities even though the tank was within the shoreline setback. Id. at *1, *6, *9. 4 Geotechnical analysis had determined that the bulkhead was not necessary for the construction of the residence. Id. at ¶ X. CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 12 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 SCUP. Bahia, SHB No. 95-34 at ¶ at XLVI. Without shoreline permit review, Mr. Bahia commenced clearing, grading, building a road through his four lots to an area on the downslope portion of his property, and removing trees. Id. at ¶¶ XVIII, XXVII. The Board found that even though some of the project elements were outside of the shoreline jurisdiction, the home, septic system, road and retaining wall, stormwater drainage systems, and the bulkhead were all part of an “integrated, larger project, the parts of which depend upon each other for their justification or implementation” and should have been analyzed in one permit application. Id. at ¶ X. The SHB found that the bulkhead allowed the home to be sited near the water, the road was necessary to access the home, and septic tank was necessary due to a lack of sewer service in the area. Id. These Board decisions are consistent with the Washington Supreme Court’s view on piecemealing non-shoreline project. The Washington Supreme Court has refused to find impermissible piecemealing where an action is “in no way dependent upon or intertwined with the development of the property.” Cheney v. City of Mountlake Terrace, 87 Wn.2d 338, 343, 552 P.2d 184 (1976). In Cheney, the City of Mountlake Terrace obtained approval to construct an arterial road that abutted a residential property. Id. at 341. Appellants in that case alleged that the City had improperly segmented review of the road project because the City had not considered development on the residential property. Id. at 343. The Supreme Court rejected this argument, finding that the road was being built to serve existing traffic needs, not to encourage development of the private parcel. Therefore, completion of the road was “in no way dependent upon or intertwined with the development of the [private] property” and impacts associated with the future residential development did not need to be analyzed under SEPA. Id. The Rathvons have not proposed improvements to Twana Way as part of their SCUP application. None of the permit applications filed by the Rathvons have described any work on Twana Way. Exs. DCD-03 at 9-16, 55-63, 67-70; DCD-04. As Ms. Frostholm noted in a CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 13 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 November 2024 email to Mr. Rathvon, the “proposal submitted to DCD did not include alteration or expansion” of Twana Way. Ex. A1 at Ex. D. Because the building department may have had an understanding that road improvements would be part of the project, Ms. Frostholm asked the Rathvons to clarify. Id. In January 2025, the Rathvons confirmed that they are not proposing to alter or expand the road,” but that road maintenance may be required post-construction to address any damage to Twana Way from construction vehicles. Ex. DCD- 8 at 3. Further, the Rathvons’ construction of their single-family residence is not dependent or intertwined with any improvements on Twana Way. The Rathvons do not need to build a new road to access their property as in Bahia. Twana Way has been in existence since at least the early 1970s before the Rathvon family purchased the property. The Rathvons also do not need to modify Twana Way to build their home. As Mr. Miller, Mr. VonBargen, and Mr. Rathvon will testify at the hearing, construction vehicles have used Twana Way in its existing condition to build eight other single-family homes in the neighborhood over the past 40 years with no slope stability issues. Mr. McHugh will testify that construction vehicles have accessed the Rathvon property via Twana Way in its existing condition. Mr. Richert and Mr. Miller will testify that there are construction means and methods that can be used that do not require any modifications to Twana Way. Because the existing road already provides access to the Rathvon property and because it can be used for construction in its current condition, Twana Way is not a necessary component of the Rathvons’ single-family home. The construction of the Rathvons’ home does not depend on any work to Twana Way. Therefore, the full, unified, and integrated physical project at issue in this case is the Rathvons’ proposed residence, the septic system, and driveway. Twana Way is not properly included in the Rathvons’ SCUP as a matter of law or fact. CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 14 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 B. The County Analyzed Potential Impacts Associated with Construction Activities on Twana Way as Part of the Rathvons’ CUP Application. Even if the Hearing Examiner finds that the SCUP Decision should have described work on Twana Way as part of the proposed project, the SCUP Decision can still stand because the County evaluated whether use of the road in its current condition would impact the shoreline environment. Where the evidence demonstrates that the local government’s review of a shoreline permit considered the “full, unified, and integrated physical project,” failure to include a complete project description in a shoreline permit decision is not a violation of the SMA. Citizens to Stop the SR 169 Asphalt Plant, at 88. In the instant case, the County conducted a site visit on January 17, 2025, to examine Twana Way. Ex. A1 at Ex. I. The County also requested further information on the stability of Twana Way from the Rathvons’ geotechnical consultant, Stratum Group. Ex. DCD-09. After reviewing this information, the County determined that the “existing access road”—i.e., Twana Way—was sufficient for construction of the Rathvons’ residence. Ex. A1 at Ex. I. The County determined that any proposed modifications to Twana Way, which is outside of the shoreline jurisdiction, would qualify as maintenance under the County code and would fall within an exemption to the County’s Critical Areas Ordinance. Ex. A1 at Ex. I. Local government legal interpretations of their own SMPs are given substantial weight where that interpretation falls within the local government’s specialized expertise. Ackerson v. King County, SHB No. 95-026 at 8-9, 1996 WL 226594 (Findings of Fact, Conclusions of Law and Order) (March 19, 1996). After reviewing the relevant information, the County used this expertise here to determine that any future proposed Twana Way modifications should be addressed under the County’s the Critical Areas Ordinance, as opposed to the shoreline permitting process. Ex. A1 at Ex. I. Such a decision is consistent with the Washington State Supreme Court’s affirmation that critical areas within the jurisdiction of the Shoreline Management Act (“SMA”) are CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 15 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 governed by the SMA, and critical areas outside of the shoreline are governed by the Growth Management Act. Futurewise v. W. Washington Growth Mgmt. Hearings Bd., 164 Wn.2d 242, 189 P.3d 161 (2008) (Per J.M. Johnson, J., with three justices concurring and one justice concurring in result.). The County determined that future work on Twana Way would likely constitute road maintenance and repair and as such would not be a new use or development per the Critical Areas Ordinance and is not subject to the reasonable economic use exceptions to JCC 18.22.260. Id. The County also determined that road maintenance could be exempt from the County’s critical areas ordinance pursuant to JCC 18.22.230(4)(c). Id. The County then requested that the if the Rathvons desired to do road maintenance work that they submit the information requested in JCC 18.22.230(5) to ensure that the road maintenance would be conducted in accordance with critical areas protections. Id. The SCUP Decision ensures that the Rathvons will comply with the Critical Areas Ordinance by explicitly stating that the SCUP does not authorize any modifications to the existing access road and requiring the Rathvons to obtain additional permits for any modifications to Twana Way. Ex. DCD-11, Condition 7. C. Appellants Have Not Provided Evidence That Either They or the Environment Will Be Harmed Appellants have never alleged any individual harm that they will suffer as a result of the Rathvons’ single-family home project or as a result of the County’s review of the SCUP application. Appellants do not allege any harm to themselves or the environment in their public comment letters on the SCUP application or in their appeal statement. Exs. CA01, DCD-06 at 7-26, DCD-10. Appellants have offered no technical studies, scientific evidence, or any information that contests the County’s findings that the Rathvons’ Project is consistent with the SMA and SMP. Instead, Appellants merely complain that the County did not analyze the Rathvons’ Project enough. However, the County considered the Appellants’ comments and required additional information from the applicant in response to these comments, including two more geotechnical analysis and a cumulative impacts analysis. Exs. DCD-03 at 9-16, 55- CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 16 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 63, 67-70; DCD-04; DCD-08. The County cannot be faulted for relying on a credible analysis, rather than conjecture, to support its decision. To have standing, Appellants must demonstrate all of the following: (1) they suffer an injury in fact that is concrete and particularized, (2) their injury falls within the zone of interests protected by the SMA, and (3) the decisionmaker has “within its legal power the ability to impose a remedy that will redress [her] injury.” MLK Labor v. City of Seattle, SHB No. 19- 007 at 8 (Order on Mot. to Dismiss and Mot. for Partial Summ. J., Jan. 13, 2020). The party asserting standing bears the burden of establishing each of these elements. Alexander v. Port Angeles, SHB Nos. 02-027 & 02-028 at 4 (Summ. J., March 13, 2003) (citing Center for Environmental Law & Policy v. Ecology, PCHB No. 96-165 (1997)). To show an injury in fact, petitioner must allege “specific and perceptible harm.” Suquamish Indian Tribe v. Kitsap County, 92 Wn. App. 816, 829, 965 P.2d 636 (1998). The injury in fact” test “requires more than an injury to a cognizable interest. It requires that the party seeking review be himself (or herself) among the injured.” Nicholson v. City of Renton, SHB No. 10-016 at 10 (Order on Summ. J. Dec. 22, 2010) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992)). Alleging a conjectural or hypothetical injury is not sufficient to prove standing. Snohomish County Prop. Rights All. v. Snohomish County, 76 Wn. App. 44, 53, 882 P.2d 807 (1994); Hale v. Island County, SHB Nos. 04-022 & 04-023 Decisions on Motion to Dismiss, Jan. 27, 2005). The injury must be immediate, concrete, and specific, not conjectural or hypothetical. Snohomish County Prop. Rights All., 76 Wn. App. at 53. Appellants repeatedly complain that the County did not study impacts from road work on Twana Way, even though such improvements have never been part of the Rathvons’ proposal. In 2022, Appellants admitted that they “are not directly affected by the road conditions” on Twana Way, just that they were impacted by “a section of the damaged road runs through our property.” Ex. RR-19. Appellants were “interested in fixing the road that runs CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 17 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 through [their] property but not anything beyond that.” Id. Appellants had been actively working with the Rathvons to coordinate with the neighbors on an effort to maintain Twana Way—a process both parties to this appeal were undertaking outside of the Rathvons’ single- family home proposal. Therefore, Appellants cannot prove the are harmed by road maintenance work on Twana Way. The only possible harm to Appellants is that with a home on the Property, they will not be able to trespass upon the Rathvons’ property to access the bay. Hearing Examiners have recognized that appellants who seek to challenge a municipality’s decision that a project will not have adverse impacts on the environment must meet a higher evidentiary bar than during the public comment process. In the SEPA context,5 appellants “must present actual evidence of probable significant adverse impacts from the proposal.” In the Matter of the Appeal of Save Madison from a Decision Issued by the Director, Seattle Department of Construction and Inspections, Seattle Hearing Examiner File No. MUP- 20-023 6 at 11 (Amended Findings and Recommendation of the Hearing Examiner for the City of Seattle, Apr. 5, 2021) (citing Boehm v. City of Vancouver, 111 Wn. App. 711, 719, 47 P.3d 137 (2002); Moss v. City of Bellingham, 109 Wn. App. 6, 23, 31 P.3d 703 (2001)). This burden is not met when an appellant only argues that they have a concern about a potential impact, and an opinion that more study is necessary. . . . After the comment period has concluded, and where . . . the responsible office shows that they have fully reviewed and considered such comments and concerns, including requiring additional review and analysis from an applicant, if the process proceeds to appeal, the bar is raised for concerned appellants to proactively provide adequate evidence of significant impacts that were not considered by the SEPA reviewer. Id. Similar to In the Matter of the Appeal of Save Madison, Appellants in this case have 5 Like SEPA, the purpose of the SMA and the County’s SMP is to protect the shoreline environment by analyzing impacts a project may have upon that environment. RCW 43.21C.010; RCW 90.58.020. 6 Available at: https://web6.seattle.gov/Examiner/case/MUP-20-023 (last accessed Aug. 28, 2025). CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 18 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 failed to provide any evidence to the Hearing Examiner that the Rathvons’ project will cause significant impacts on the shoreline. Instead, Appellants just ask for more analysis and point to procedural deficiencies in the Rathvons’ application. Therefore, the County’s SCUP Decision should stand. D. County Appropriately Used Its Discretion in Determining Completeness of Application The bulk of Appellants’ Notice of Appeal amounts to one procedural complaint—that the County failed to require the Rathvons to provide additional information and approved the SCUP on the basis of an incomplete application. Ex. CA01 at ¶¶ 4.8-4.17. However, the record in this appeal shows the County gave the Rathvons’ proposal a great deal of review. The County reviewed the SCUP application over a period of nearly 3 years, requested additional information multiple times, and the Rathvons responded with that information each time. The Rathvons submitted three different sets of permit applications in 2022, 2023, and 2024 before the County put the Rathvons’ application out for public comment in August 2024. Exs. DCD- 03 at 9-16, 55-63, 67-70; DCD-04. In response to comments, predominantly from Appellants, the County requested more information from the Rathvons in November 2024 regarding road improvements, construction staging, additional geotechnical analyses, and cumulative impacts. Ex. A1 at Ex. D. In January 2025, the Rathvons provided additional geotechnical and cumulative impacts analyses, along with clarification that the proposal to construct a single- family home did not include improvements to Twana Way nor did it contemplate transporting construction materials to the site by barge. Ex. DCD-08. The County then spent an additional three months reviewing this information before issuing the SCUP. See Ex. DCD-11. The County had sufficient information upon which to make its permitting decision. Should the Hearing Examiner nevertheless decide that the Rathvons’ application was not complete, lack of completeness is not fatal to the SCUP. “If sufficient information is developed during the permit process to provide an adequate basis for determining consistency CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 19 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 with the SMA and SMP, any variation from the formal application requirements of the initial submittal is without legal consequence.” Alexander v. City of Port Angeles, SHB Nos. 02-027 02-028 at ¶ XXIV, 2003 WL 21511188, at *14 (Findings of Fact, Conclusions of Law and Order, July 1, 2003). As such, agencies need not rely solely on the information presented in an application in making a determination on a shoreline permit. Id. at ¶ XXVI. The agency may rely upon both the application and subsequently submitted information. Id. This is what the County did here. Such a procedural deficiency can also be cured based on information presented at the hearing. See North Park Neighbors v. City of Long Beach, SHB No. 05-030 at ¶ V, 2006 WL 2848721 (Findings of Fact, Conclusions of Law, and Order, Sept. 28, 2006) (a shoreline application consists of the entire record developed on review) (quoting Eklund v. San Juan County, et.al., SHB No. 99-029 (March 2, 2000)); Hearing Examiner Procedures at Section 6.1(c) (granting the County Hearing Examiner the authority to affirm, deny, or modify the County’s decision). If the record developed before the Hearing Examiner “demonstrates compliance with the SMA and SMP, . . . an incomplete application at the local level can be deemed harmless.” See Coalition For A Sustainable 520 v. City of Seattle, SHB No. 12-002c at 30, 2012 WL 2521157 (Order on Summ. J., June 20, 2012); see also North Park Neighbors v. City of Long Beach, SHB No 05-030 at 13 (Findings of Fact, Conclusions of Law, and Order, Sept. 28, 2006); Sahlin v. City of University Place, SHB No. 03-024 at ¶¶ 5-6 (Findings of Fact, Conclusions of Law, and Order, July 16, 2004). The Hearing Examiner’s review can also cure any inaccuracies that may exist in an application. See Sahlin, SHB 03-024 at ¶¶ 5-6. Finally, Appellants complain that the Rathvons did not provide adequate analysis of how the Project complies with the SMP criteria, specifically JCC 18.25.630(12) and (16). The Rathvons provided this information as part of the cumulative impacts analysis. Ex. DCD-08 at 43-66. Although the County code requests the applicant’s opinion, the County makes the decision as to whether a proposed project meets the SCUP criteria and is consistent with the CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 20 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 SMP. See RCW 90.58.050, .140. The County’s Staff report provides a detailed analysis of how the Project is consistent with both the SCUP criteria and the SMP. Ex. DCD-14. The County’s actions show the County’s diligence in satisfying itself that it had enough information to make a decision. The County fully satisfied its permitting obligations by conducting a detailed, lengthy review of the Rathvons’ application and requesting additional information where needed. E. The County Appropriately Relied Upon Shoreline Regulations in Processing the Rathvons’ Application Appellants make numerous allegations as to what the County’s code requires in considering whether to approve an SCUP. However, the majority of these arguments cite to the County’s SMP policies as mandatory requirements. Ex. CA01 at ¶¶ 4.5, 4.8, and 4.9. Contrary to Appellants’ arguments, SMP regulations, not policies, are the standards upon which a shoreline application is judged. P]olicies and regulations are not the same thing.” Richter v. City of Des Moines, SHB No. 10-013 (Order on Partial Summary Judgment, Dec. 7, 2010) (Analysis, § B) (citing (WAC 173-26-191(1)(a)). Although a municipality must evaluate a project against both the SMP’s policies and regulations, “SMP policies are adhered to with more flexibility than regulations in the review of development proposals at the local and state level.”7 “Policy direction itself will require interpretive judgment when being applied to a specific proposal.” Id. On the other hand, “[a] regulation is an authoritative rule that directs the requirements for a use or physical standard. Regulations are specific, as definitive as possible . . . to indicate that a proposed use or activity must conform to the regulation.” Id. “The regulations are the primary standards against which all development proposals are evaluated,” id., and use the verb “shall,” which is construed to impose a mandatory duty.” Concerned Neighbors For East Bay Drive v. City of 7 Ecology, SMP Handbook, at Ch. 3, p. 21 (2017), available at: https://apps.ecology.wa.gov/publications/parts/1106010part3.pdf (last accessed Aug. 25, 2025). CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 21 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 Olympia, SHB No. 08-036 at 13, 2009 WL 1655541 (Findings of Fact, Conclusions of Law, and Order, June 9, 2009) (quoting Waste Management of Seattle, Inc. v. Utilities and Transportation Commission, 123 Wn.2d 621, 629, 869 P.2d 1034 (1994)). The Rathvons’ SCUP application complies with the relevant regulations. Appellants allege that the County should have considered construction impacts due to their risk of harm to the shoreline environment from increased runoff and sediment transport pursuant to JCC 18.25.320(1)(a). Ex. CA01 at ¶¶ 4.4, 4.5. JCC 18.25.320(1)(a) reads: 1) Policies. (a) The location, construction, operation, and maintenance of all shoreline uses and developments should maintain or enhance the quantity and quality of surface and ground water over the long term. JCC 18.25.320.2 provides the applicable regulations, which require the use of “effective erosion control methods” during project construction and that septic systems be “located and designed to meet all applicable water quality, utility, and health standards” to “avoid water quality degradation.” JCC 18.25.320(2)(a), (b). The SCUP includes requirements for the project to use best management practices (“BMPs”) for stormwater and construction runoff management, such as installing a silt fence 160 feet from the OHWM to prevent sediments from being transported from the construction area to the shoreline and installing a silt fence no closer than 150 from the OHWM for septic drain field construction. Ex. DCD-11, Condition 4. Similarly, ground-disturbing construction activities for the house must be conducted at least 160 feet from the OHWM and 150 feet from the OHWM for drain field construction. Id. at Condition 6. The SCUP also requires the project comply with seven different stormwater BMPs. Id. at Condition 9. Everett Stevenson will testify at the hearing that the drain field will not impact water quality in Dabob Bay because the soils underlying the project area will prevent any water from the septic system from traveling into the bay. Appellants next allege the County violated its code requirements—specifically, JCC 18.25.070(1)(b)(v)—by failing to analyze “the impacts of future foreseeable road modifications” as “incremental and cumulative impacts.” Ex. CA01 at ¶ 4.5. The County code CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 22 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 does not contain a section 18.25.070(1)(b)(v). Assuming Appellants intended to reference JCC 18.25.270(1)(b)(v), Appellants have again cited to a policy instead of a regulation. The applicable regulation—JCC 18.25.270(3)(b)—states: The county shall have the authority to require the applicant/proponent to prepare special studies, assessments and analyses as necessary to identify and address cumulative impacts including, but not limited to, impacts on fish and wildlife habitat, public access/use, aesthetics, and other shoreline attributes. The County exercised its authority under this regulation, requiring the Rathvons to submit a cumulative impacts analysis that addressed aesthetic impacts and an analysis of the geologic conditions of Twana Way. Exs. A1 at Ex. D; DCD-09. The Rathvons also submitted renderings of their proposed home. Ex. A1 at Ex. Q, p. 1. Again, the County followed its shoreline regulations in issuing the SCUP. Therefore, the SCUP Decision must stand. IV. CONCLUSION The County issued its SCUP Decision based on sufficient technical information it obtained from the applicant over the course of 3 years. The County correctly excluded work on Twana Way from the SCUP Decision because the Rathvons did not propose the work and because the work is not necessary to build the Project. The County also ensured that the Project complied with the SMP. For the foregoing reasons, the Rathvons respectfully request that the Hearing Examiner uphold the County’s SCUP Decision. CA received 08/29/25 EXHIBIT RR-44 RESPONDENTS’ PRE-HEARING BRIEF - 23 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 Dated this 29th day of August, 2025. SCHWABE, WILLIAMSON & WYATT, P.C. By: /s/ Julie Wilson-McNerney Patrick J. Mullaney, WSBA #21982 Email: pmullaney@schwabe.com Julie Wilson-McNerney, WSBA #46585 Email: jwilson-mcnerney@schwabe.com 1420 Fifth Avenue, Suite 3400 Seattle, WA 98101 Telephone: 206-622-1711 Fax: 206-292-0460 Attorneys for Applicant CA received 08/29/25 EXHIBIT RR-44 CERTIFICATE OF SERVICE - 1 SCHWABE, WILLIAMSON & WYATT, P.C. Attorneys at Law 1420 5th Avenue, Suite 3400 Seattle, WA 98101 Telephone 206-622-1711 143646\288596\48758793.2 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 29th day of August, 2025, I caused to be served the foregoing RESPONDENTS’ PRE-HEARING BRIEF on the following parties via E-Mail: Jefferson County: Carolyn Gallaway Jefferson County Hearing Examiner Clerk Carolyn@co.jefferson.wa.us Greg Ballard Department of Community Development gballard@co.jefferson.wa.us Ariel Speser, WSBA #44125 Civil Deputy Prosecuting Attorney aspeser@co.jefferson.wa.us lmikelson@co.jefferson.wa.us Donna Frostholm Associate Planner – Lead/Wetland Scientist dfrostholm@co.jefferson.wa.us Adiel F. McKnight Deputy Clerk of the Board, CMC afmcknight@co.jefferson.wa.us Attorney for Appellants John DiMaggio and Michelle Oliver Bryan Telegin, WSBA #46686 Telegin Law PLLC 216 6th Street Bremerton, WA 98337 bryan@teleginlaw.com jamie@teleginlaw.com s/ Julie Wilson-McNerney Julie Wilson-McNerney, WSBA # 46585 CA received 08/29/25 EXHIBIT RR-44