HomeMy WebLinkAboutCL27 2025 08 29 Jefferson County Pre-Hearing Brief (Rathvon Hearing Examiner Case)JEFFERSON COUNTY’S PRE-HEARING
BRIEF Page 1 of 7
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
In re Appeal of Rathvon Shoreline
Conditional Use Permit, DCD File No.
SDP2023-00020
JEFFERSON COUNTY’S PRE-
HEARING BRIEF
I.INTRODUCTION
Appellants challenge an administrative approval of a shoreline conditional use permit
(SCUP), Jefferson County Department of Community Development (DCD) File No. SDP2023-
00020, issued April 10, 2025 (Permit). Jefferson County issued the Type II administrative
decision to Applicant, who proposes to develop a single-family residence within shoreline
jurisdiction on property located at 660 Twana Way, Quilcene, Washington 98376 (Property).
Appellants and Applicant share use of Twana Way to access their respective properties.
Jefferson County (County) issued a thorough Staff Report by Donna Frostholm, Project Planner,
on April 10, 2025, recommending approval of the Permit with conditions.
This Pre-Hearing Brief provides a short road map outlining anticipated testimony to be
provided at the public hearing and identifying some of the key issues on appeal.
II.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). Issues of law are subject to a de novo standard of
CA received 08/29/25
EXHIBIT CL27
JEFFERSON COUNTY’S PRE-HEARING
BRIEF Page 2 of 7 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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review and issues of fact are subject to a substantial evidence standard of review. Rules of
Procedure 5.14(j)(iii).
Case law supports that a County’s interpretation of its law should be accorded “great
weight where the statute is within the agency’s special expertise.” Cornelius v. Wash. Dep’t of
Ecology, 182 Wn.2d 574, 585, 344 P.3d 199 (2015) (review under the Administrative Procedure
Act) (citations omitted). Testimony at hearing will demonstrate that the two planners involved
in this matter have decades of experience living and working on the Olympic Peninsula and are
well-versed in Jefferson County’s Code and applicable law impacting shoreline development
regulations. When a local government entity administers a state law through
its own enactments, it is usually afforded deference by the court as the agency with
expertise. Solid Waste Alternative Proponents v. Okanogan County, 66 Wn.App. 439, 442, 832
P.2d 503 (1992).
The County respectfully contends that the record and testimony will be supported by
substantial evidence.
B. County will demonstrate SCUP complies with chapter 18.25 Jefferson
County Code (JCC) Shoreline Master Program (SMP).
This Permit was reviewed in compliance with the SMP as codified in chapter 18.25 JCC.
DCD has submitted Exhibits 01 through 15, including the Staff Report issued April 10, 2025.
The Staff Report outlines Staff Findings as it relates to the Jefferson County Comprehensive
Plan, Critical Areas (chapter 18.22 JCC), Stormwater (JCC 18.30.060 and 18.30.070), and the
Shoreline Master Program (chapter 18.25 JCC).
The proposed single-family residence is an expressly allowed use in the SMP’s Natural
shoreline environment, with a conditional use permit. JCC 18.25.500(3)(c). The proposed
development is located within 200 feet of the ordinary high water mark (OHWM), but outside
of the 150 shoreline buffer, and with a 10 foot building setback. Staff Report at 3. The Staff
Report provides extensive comments documenting why and how DCD determined the project
will “avoid impacts to the shoreline environment to the extent possible” and “no adverse
impacts to the shoreline are expected,” provided the Applicant follow best management
CA received 08/29/25
EXHIBIT CL27
JEFFERSON COUNTY’S PRE-HEARING
BRIEF Page 3 of 7 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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practices for erosion control. Id. at 6-7. The SCUP was conditioned to ensure no sediment or
pollutants would reach Dabob Bay. Id. at 8.
Testimony at the hearing by Planner Frostholm will include a detailed explanation of the
staff comments and recommended conditions included in the Staff Report, demonstrating that
DCD met all of the applicable requirements for the application’s review.
C. DCD thoroughly evaluated issues related to the road and construction during the
permit process.
1. Twana Way is a Pre-Existing Access Road.
The Applicant’s deed and easement history document that Twana Way is a pre-existing
access road for the subject Property. As far back as 1969, an easement recorded under document
number 203763 refers to “following the general course of an existing road” and states the road
easement is permanent and perpetual. Ex. CL 18. There is no dispute regarding Applicant’s
right to use the road.
2. DCD Properly Evaluated All Components of the Proposal.
Significantly, there is no dispute that the road is outside of shoreline jurisdiction.
Testimony provided at the public hearing will supplement the Staff Report by explaining that
even though the road is outside of shoreline jurisdiction, DCD diligently followed up on the
question of potential road maintenance or improvements. For example, upon requesting
additional information, DCD received a geotechnical report on March 13, 2025 (Ex. 09)
indicating road improvements may be needed. As such, the permit was conditioned to address
potential improvements (Condition 7). DCD’s testimony will explain why the status of the road,
as DCD understood the project proposal, did not require further evaluation of potential impacts
to the road.
Appellants argue under the SMA, a shoreline permit application must describe the full,
unified, and integrated physical project, both within and without of the shoreline jurisdiction,”
and that “[this allows the local government to review the project to determine to what extent
those portions of the project outside the [shoreline area] may adversely impact the shoreline of
the state.” Citizens to Stop the SR 169 Asphalt Plant v. King County, SHB No. 22-007, Findings
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EXHIBIT CL27
JEFFERSON COUNTY’S PRE-HEARING
BRIEF Page 4 of 7 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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of Fact, Conclusions of Law, and Order, 2023 WL 2977069, * (April 12, 2023) (emphasis
added; citing Laccinole v. City of Bellevue, SHB 03-025 (March 10, 2004), Merkel, supra, 8
Wn. App. 850- 51, and Preserve Our Islands v. King Cnty., SHB No. 04-009 (Nov. 3, 2004)).
However, this is not the case here. Twana Way is outside of shoreline jurisdiction and is
not an integrated part of the project. Therefore, the County respectfully argues that Citizens to
Stop the SR 169 Asphalt Plant v. King County is distinguishable because in that case the project
(1) included highway road improvements and (2) since those road improvements were less than
200 feet from the shoreline, they appropriately triggered review under the Shoreline
Management Act.
Here, DCD properly reviewed the permit pursuant to 18.25.590 Conditional use permit
criteria. Normal road maintenance, if required, would be exempt under the Jefferson County’s
Critical Areas Ordinance.
Maintenance – Transportation. Maintenance or reconstruction of existing public or
private roads, paths, bicycle ways, trails, and bridges; provided, that the maintenance or
reconstruction complies with the additional requirements in subsection (5) of this
section.
JCC 18.22.230(4)(c).
If more substantial improvements were required in the future, Condition 7 clearly states,
“This permit does not authorize any modifications to the existing road. It is the responsibility of
the permittee to obtain any required permits.” Staff Report at 8. DCD does its best to review and
consider all factors that might impact a project, but ultimately DCD has a responsibility to
review the application before it based on the information provided by the Applicant.
Here, DCD exercised due diligence by requesting additional information, as well as
conducting site visits, and taking care to do a thorough review. This is a case where local
government acted reasonably in pursuing information and made reasonable decisions intended to
balance development of a single-family residence with important environmental protections
based on the information available.
Furthermore, DCD will explain how additional protections through Stormwater and
Critical Areas are additional safeguards that work to address any other potential environmental
CA received 08/29/25
EXHIBIT CL27
JEFFERSON COUNTY’S PRE-HEARING
BRIEF Page 5 of 7 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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impacts related to potential road maintenance or improvements. See JCC 18.22.200
(Applicability), as well as JCC 18.22.530(6)(a), which is part of the protection standards for
geologically hazardous areas. Both of these code sections support DCD’s understanding that
local code provisions provide the necessary protection of shorelines for development outside of
shoreline jurisdiction through critical area provisions and stormwater management requirements.
2. DCD’s Recommended Conditions are Reasonable.
To the extent there is any construction related activity proposed to occur that may trigger
any kind of potential environmental impact, the recommended conditions are intended to
specifically address these concerns.
For example, recommended condition number 4 states: “A silt fence shall be installed
160 feet from the ordinary high water mark (OHWM), as shown on the approved site plan, to
prevent sediments from being transported from the construction area to the shoreline. At the
drainfield location, the silt fence shall be placed no closer than 150 feet from OHWM. The
permittee shall contact DCD planning to review the silt fence installation prior to proceeding
with any other work on the property.” Staff Report at 8.
Additionally, condition number 5 states: “The permittee shall ensure that all construction-
related actives for the house, including ground clearing and stockpiling equipment, are
conditioned at least 160 feet from OHWM and that all ground disturbance to install the drainfield
is conducted at least 150 feet from OHWM.” Staff Report at 8.
Testimony by DCD will provide additional context for why recommended conditions 6
and 7 are reasonable conditions and ultimately supported by Jefferson County policy and code.
D. A Complete SCUP Application was Properly Reviewed.
Appellants contend the application was not complete in various ways and that therefore,
it was not properly reviewed. However, testimony during the hearing will demonstrate that
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EXHIBIT CL27
JEFFERSON COUNTY’S PRE-HEARING
BRIEF Page 6 of 7 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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DCD thoroughly reviewed the application, requested additional information when necessary,
and had reasonable basis to determine the application was complete when it issued the Staff
Report.
III. CONCLUSION
The County intends to provide testimony by DCD planners with personal knowledge of
this project at the upcoming hearing. This testimony is anticipated to provide additional context
for how and why decisions were made in the Staff Report. The County respects the role of the
Hearing Examiner and will be available to answer any additional questions or provide any
additional materials, which may be helpful to the review. Here, the County strongly supports its
proposed findings, conclusions, and recommendations in the Staff Report. At minimum, the
County hopes to make a clear record that it acted reasonably and with due diligence in
conducting the review of this proposal. The County respectively reserves the right to submit a
Closing Argument post-hearing, as outlined by the Pre-Hearing Conference Order.
Respectfully submitted this 29th day of August, 2025.
JAMES KENNEDY
Jefferson County Prosecuting Attorney
Ariel Speser, WSBA #44125
Deputy Prosecuting Attorney
CA received 08/29/25
EXHIBIT CL27
JEFFERSON COUNTY’S PRE-HEARING
BRIEF Page 7 of 7 Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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DECLARATION OF SERVICE
I, Ariel Speser, under penalty of perjury under the laws of the State of Washington,
declare as follows:
I am the assigned attorney for Respondent Jefferson County. On Friday, August 29,
2025, I served a true and correct copy of the foregoing JEFFERSON COUNTY’S PRE-
HEARING BRIEF to be served on the persons listed below in the manner indicated.
Name: Bryan Telegin,
C/O Telegin Law PLLC
Title: Attorney for Appellants
Municipality/Organization/Law Firm
Address: 216 6th Street
Bremerton, WA 98337
☒ by E-mail to bryan@teleginlaw.com
Name: Patrick Mullaney and Julie Wilson-
McNerney
Title: Attorneys for Applicant Richard
Rathvon
Municipality/Organization/Law Firm
Address: Schwabe, Williamson & Wyatt,
P.C., 1450 5th Ave., Ste. 3400,
Seattle, WA 98101-2339
☒ by E-mail to PMullaney@schwabe.com
JWilson-McNerney@schwabe.com
Office of the Jefferson County Hearing Examiner
By Email: carolyn@co.jefferson.wa.us
AFMcKnight@co.jefferson.wa.us
Dated this 29th day of August, 2025.
Ariel Speser, WSBA #44125
Civil Deputy Prosecuting Attorney for
Jefferson County
CA received 08/29/25
EXHIBIT CL27