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HomeMy WebLinkAbout.Final.SIGNED HX SEPT 25 RECORD OF RECOMMENDATION Simms Street Vacation Sept. 25 2025 RECORD OF RECOMMENDATION – SIMMS STREET VACATION PROJECT NO. 97023001– P. 1 Jefferson County Hearing Examiner 1820 Jefferson St./P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Before Hearing Examiner Tom Ehrlichman BEFORE THE HEARING EXAMINER FOR JEFFERSON COUNTY In the Matter of a Petition to ) Vacate a Portion of Simms Street, ) a County Road, Application Submitted by ) Public Works Project No. 97023001 ) ) CHIMACUM PROPERTIES, LLC ) RECORD OF RECOMMENDATION ) ) Right-of-Way Abutting Six Parcels: ) Parcel Nos. 942-903-703, 942-903-704 ) 942-903-705, 942-903-801, ) 942-903-802, 942-903-803 ) ) (Irondale/Port Hadlock ) Urban Growth Area) ) ____________________________________) I. INTRODUCTION This Recommendation concerns a petition to vacate Simms Street (off of Rhody Drive, a.k.a. State Route -19), which is a dead-end, platted roadway serving multiple parcels within the Irondale/Port Hadlock Urban Growth Area (UGA). The parcels currently have rural zoning designations, some allowing single family residences and some allowing commercial uses. The County’s comprehensive plan describes all of the parcels fronting Simms Street as part of the UGA. All of them are shown there with a “future-zoning” designation of “Urban Commercial,” including the parcels currently designated for rural single family residences. As set forth in the Jefferson County Code, and as reviewed and approved upon appeal by the Growth Management Hearings Board, this future zoning is activated on a parcel when sanitary sewer service becomes available. The question of whether to vacate this County street is therefore complicated by RECORD OF RECOMMENDATION – SIMMS STREET VACATION PROJECT NO. 97023001– P. 2 Jefferson County Hearing Examiner 1820 Jefferson St./P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 consideration of both the present case (rural) and the future planned uses of the properties over time (urban commercial). The Jefferson County Code directs that a petition to vacate a County road go through a series of reviews prior to a final decision by the Board of County Commissioners. The Petition first is evaluated by the County Engineer.1 The Hearing Examiner then holds a public hearing and issues this recommendation to the County Commissioners. At a public meeting, the Commissioners make the final decision, and it is then appealable to superior court. The evaluation by Public Works and this Recommendation by the Hearing Examiner provide the Commissioners with two perspectives from which to choose. The first recommends granting the petition, based primarily on existing conditions, including the existing rural uses. The Hearing Examiner recommends denial, based upon the UGA commercial zoning set out in the Comprehensive Plan, and a concern about not closing off options until completion of more site-specific planning at this commercial node. Both recommendations focus on the same criteria in the code and state law to reach equally valid but diverse results. II. THE RECORD This recommendation is based upon the Hearing Examiner’s review of the following: 1. A site visit conducted by the Examiner on September 23, 2025; 2. A public hearing held and closed on August 15, 2025 (in-person and virtual);2 3. Exhibits CA-01 through CA-09, described in the attached Exhibit Log Simms St 07.15.25; and 4. Parties of Record List CA09 8.18.25. The Parties of Record List and the Exhibit Log and each of its exhibits are all incorporated herein by reference as though fully set forth herein. The Examiner notes that there were no written comments submitted to the County by adjoining property owners in response to the Notice of Public Hearing published on July 30, and again on August 6, 2025. (Exh. CA-04, Exh. C). The County mailed and posted the notice. Exh. CA-04 at 2. As noted in the Staff Report, 1 The County Engineer determined that the road vacation request is exempt from SEPA pursuant to WAC 197-11- 800(2)(i). Exh. CA-03 at 4, Para. 16. 2 An audio tape of the public hearing is available by contacting the Clerk for the Office of Hearing Examiner. RECORD OF RECOMMENDATION – SIMMS STREET VACATION PROJECT NO. 97023001– P. 3 Jefferson County Hearing Examiner 1820 Jefferson St./P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CA-04, Jefferson County PUD #1 commented notifying the County of an existing easement and seeking an “easement agreement . . . executed with the property owners who will assume ownership of the land.” Exh. CA-05. At the public hearing, the Examiner heard and considered live testimony from the following: 1. Joshua Thornton, Dept. of Public Works, Real Property Specialist; 2. James A. Jackson, authorized representative for Petitioner, the owner of adjacent Parcel Nos. 942-903-704; 942-903-705; 942-903-801; and 942-903-802; 3. Case P. Swanson, landowner of adjacent Parcel No. 942-903-703; 4. Tammi Swanson, speaking on behalf of Mia Swanson, an owner of adjacent Parcel No. 942-903-803. As part of the record, the Examiner also takes official notice of the County Comprehensive Plan (Dec. 2018), including the adopted zoning designations for the parcels at issue, at 1-15 – 1-16, Figure 1-8 (County Zoning Map for the “Port Hadlock UGA”). Attached as Exhibit A is an unofficial map prepared by the Examiner for ease of reference to parcel numbers in relation to the street, based on the online County Assessor’s parcel-viewer maps.3 The Examiner adopts the Findings at Pages 1-4 of the County Engineer’s Report, dated July 23, 2025, at Exhibit CA-03 (Engineer’s Report), which are incorporated in their entirety as though fully set forth herein except as expressly noted in this Decision or directly in conflict with this recommendation. It is noted that upon the close of the August 15, 2025 public hearing, the Examiner left the record open for the sole purpose of allowing Public Works to provide a comment in response to public testimony at hearing by Case Swanson and Tammi Swanson, representing the owners of the adjacent parcels fronting Simms Street, and authorizing them to file a response. Public Works submitted Exhibit CA-07 and its attachments. No response was filed. III. FINDINGS Findings and Conclusions in this Recommendation are interchangeable such that a conclusion may be regarded as a finding and a finding may be regarded as a conclusion where 3 The original parcel configurations and names of County roadways (including narrow alley-ways) can be viewed on the plat maps included at Exhibit CA-03, Exhs. B and C. RECORD OF RECOMMENDATION – SIMMS STREET VACATION PROJECT NO. 97023001– P. 4 Jefferson County Hearing Examiner 1820 Jefferson St./P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 applicable. The Examiner makes the following Findings of Fact. 1. The requirements for review and approval of a street vacation are contained in Jefferson County Code (JCC) ch. 12.10 and RCW ch. 36.87. The code requires the Examiner to hold a public hearing, review the petition, and consider public testimony at hearing. JCC § 12.10.080. The Examiner issues a written record of recommendation to grant or deny the petition, with any conditions of approval, upon reviewing the approval criteria in JCC § 12.10.110. Id. 2. The code provides that the County Board of Commissioners make the final determination whether the request shall be denied, approved, approved with conditions, or approved in part, including any new findings and conclusions based upon testimony presented at a public meeting. JCC §§ 12.10.090, .130. The code authorizes the imposition of “a special condition” retaining easements for public utilities and services or trail or pathway purposes. Id. The County Commissioners may require compensation to the County. RCW 36.87.120. The County Engineer recommends that the Petitioner pay compensation and outlines the calculus for that payment. Exh. CA-03 at 4. 3. At hearing, the owners of the following two lots fronting the westernmost end of Simms Street provided testimony in opposition to granting the petition: § Case Swanson, the owner of Parcel No. 942-903-703. § Tammi Swanson, testifying on behalf of her daughter, Mia B. Swanson, an owner of Parcel No. 942-903-803. Together these parcels are referred to as the “703/803 Parcels.” 4. Public Works recommends approval with a condition requiring that the petitioner first execute and record easements/covenants with rights benefitting the following three parcels fronting Simms Street: Parcel Number and type of Right: Owner: 942-903-703 (access easement) Case Swanson 942-903-803 (access easement) Mia B. Swanson 942-903-704 (restrictive covenant) Chimacum Properties LLC RECORD OF RECOMMENDATION – SIMMS STREET VACATION PROJECT NO. 97023001– P. 5 Jefferson County Hearing Examiner 1820 Jefferson St./P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Public Works uses the phrase “ensuring legal access through a restrictive covenant” for parcel - 704 and the phrase “retention of an easement for ingress, egress and access . . . 40 feet wide” for parcels -703 and -803. Exhs. CA-03, CA-07 at 2. The Public Works recommendation does not explain how street vacation and County retention of an easement for access or utilities for the public would be different than retaining the status quo, i.e., without a street vacation. In the absence of a record explaining that difference, the street vacation seems an unnecessary substitution. 5. Separately, Public Works addresses utilities by recommending “retention of an easement within the subject vacated area for the construction, repair, and maintenance of future public utilities and services,” potentially with an eye toward future extensions of sanitary sewer lines. Exh. CA-07 at 2; Testimony of Joshua Thornton. While that retained easement would preserve the right of existing public utility easement holders to continue their current use, the language in the Public Works recommendation does not expressly guarantee the public, including the 703/803 parcel owners, a right to use that easement for new utilities in the future that they may wish extended to their parcels. Currently Simms Street would provide that right, subject to the County permit process. 6. This may be a concern with respect to future sanitary sewer extensions if the street is vacated, because RCW 36.87.140 potentially restricts the County’s authority to retain a utilities easement only if those utilities are “authorized or are physically located on a portion of the land being vacated” at the time the resolution is adopted. 7. The Public Works analysis at Exhibit CA-07 includes a brief discussion of the UGA designation and the resulting higher density of traffic that will likely occur when the 703/803 parcels convert to the Urban Commercial (UC) zoning adopted on the Comprehensive Plan zoning map at Figure 1-8 (actualized upon the extension of sanitary sewer service to this area). 8. The Examiner adopts that brief discussion and its finding that “Access to commercial properties off of Summerville Road or an alley way is not ideal and could limit future development of parcels.” That likely limitation would seem particularly acute for the 703/803 parcels, but not the Petitioners’ four parcels, which include two parcels fronting SR-19 RECORD OF RECOMMENDATION – SIMMS STREET VACATION PROJECT NO. 97023001– P. 6 Jefferson County Hearing Examiner 1820 Jefferson St./P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (942-903-705, 942-903-801). Simms Street is an existing 60-foot ROW available for a wider roadway to the 703/803 parcels. Exh. CA-03, attached Exhibit B (Plat of Chalmers’ No. 2, Irondale, WA, filed on March 27, 1911). As such it provides the best access to the 703/803 parcels to support future commercial development under the comprehensive plan’s future UC commercial zoning designation.4 9. Chimacum Properties LLC testified at hearing that they would not object to granting an easement in favor of the 703/803 Parcel owners to essentially ensure their ability to construct a roadway to County road standards in the future to serve their two parcels. Case Swanson and Tammi Swanson testified that they had been unsuccessful in the past in persuading County staff that tenant use of Simms Street for storage of portable buildings or dwellings by tenants was obstructing their right of planned public use. Converting the street to a private easement will more likely than not increase the likelihood of civil litigation over the extent to which the frontage parcels must serve the 703/803 Parcels and their right of commercial access to SR-19. 10. At the close of the public hearing, the Hearing Examiner requested that Public Works provide analysis of the public benefit from street vacation, in light of the new information from the 703/803 landowners, registering opposition and an interest in using the street for access and utilities to SR-19. Specifically, the Examiner requested that the parties address JCC § 12.10.110(2), which requires a showing that the street vacation will be “a positive tool toward improving neighborhood circulation and accesses.” 11. It is uncontested that Simms Street no longer extends to the west to connect to any other roadways; circulation in the general area is not the issue. The 703/803 parcels comprise the majority of the land area within the six-parcel neighborhood. See Exhibit A, hereto. Simms Street would be the most direct route to SR-19 for future planned commercial use of this six- 4 The Examiner’s finding here disagrees with Finding Para. 4, in Exh. CA-03 at 2. The narrow “alternative means of access through Alice St. to the south” does not provide an equivalent opportunity for future commercial access to Parcels 703/803. It is the sort of “alley way” defined as access that is “not ideal” in CA-07. Similarly, access to those parcels for commercial purposes from SR-19 along Lillian Street and Sommerville Road would create a substantial amount of traffic through residential neighborhoods. The Simms Street access to SR-19 provides the potential for a more direct and less intrusive access for commercial use of Parcels 703/803 as planned for the UGA. RECORD OF RECOMMENDATION – SIMMS STREET VACATION PROJECT NO. 97023001– P. 7 Jefferson County Hearing Examiner 1820 Jefferson St./P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 parcel neighborhood. If the Petition were granted and this route were to revert to private ownership, the Petitioners’ four parcels will control any direct access to SR-19 for the entire commercial node of six parcels. 12. Under Section .110(2), the analysis of whether the proposed street vacation is “a positive tool toward improving neighborhood circulation and accesses” must include review of the longer planning horizon for all six of the parcels, beyond current conditions which are rural in nature. The comment memorandum from the Department of Community Development, Exh. CA-03, Exh. D (dated July 22, 2025) did not include analysis of this criterion, but concluded that “DCD has no objections to the proposed vacation of Simms St. right-of-way.” 13. Analyzing the longer planning horizon, as required by JCC § 1.12.110(1), the Examiner concludes that the benefits of improved circulation and access under future conditions far outweigh any benefits arising in the short term. The 703/803 parcels are large parcels over one acre in size (1.6 and 2.6 acres) and therefore comprise a significant component in the comprehensive plan’s creation of a UC commercial node along Rhody Drive: Comprehensive Plan at 1-26. 14. The intent of the UGA plan designation is to concentrate future commercial services along Rhody Drive as part of increasing “economic development opportunity to serve the unmet regional needs of eastern Jefferson County” and consequently to provide the urban facilities and services that “will allow for development of higher density (and more affordable) multi-family housing when a sanitary system becomes available.” Comprehensive Plan at 1-116. Simms Street is potentially an important direct access between SR-19 and future commercial uses on the 703/803 parcels, consistent with the 20-year vision in the comprehensive plan. RECORD OF RECOMMENDATION – SIMMS STREET VACATION PROJECT NO. 97023001– P. 8 Jefferson County Hearing Examiner 1820 Jefferson St./P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15. In comparison to the potential benefits that Simms Street offers to the future urban zoning in the neighborhood, there appears to be little evidence of a short-term benefit derived from closing off this future roadway to public use. There is no evidence of “confusion” by current drivers who may be turning into the Simms Street alley way, thinking they are following a route to parcels to the west. Testimony to that effect was anecdotal and speculative. 16. The Examiner’s site visit confirms that it is unlikely there is existing public confusion over whether this is a through-roadway; there is no signage of a County road there offering a route of passage to the west; and the passage that one sees is narrow. It is maintained currently as a narrow access to some tenant housing, with stored modular buildings blocking most of the 60-foot wide ROW. Further restricting public access to Simms Street does not provide any short-term benefit demonstrated in this record. 17. The Engineer’s Report does mention that there will be a benefit to the Petitioner, in that they will be able to consolidate their holdings into a single large domain, eliminating the ROW that bisects the middle of the four parcels held in common ownership. This does not appear to be a public benefit, although that could be revisited in the future, once plans are clearer as to how the future UGA will develop in that area. Until public planning of street circulation, access points to SR-19, surrounding uses, and other factors involving capital facilities planning take place, any public benefit due to lot-consolidation is speculative. That seems an appropriate question for a future date and premature as a basis for street vacation at this time. 18. The Petitioner prepared and submitted an adequate appraisal report, Exh. CA-02, and has agreed to compensate the County for the value of the land that would be returned to adjacent landowners, as required by County code and as recommended by the County Engineer. IV. CONCLUSIONS The preponderance of the evidence at hearing and in the record supports a recommendation that the petition be denied, based on the following: 1. Based on the criteria for approval of a street vacation in JCC 12.10.110(2) and the totality of the record, the Examiner concludes that Simms Street should not be vacated, due to its potential usefulness for future area circulation. RCW 36.87.060 mandates that “If the county road is found useful as a part of the county road system it shall not be vacated . . . " It RECORD OF RECOMMENDATION – SIMMS STREET VACATION PROJECT NO. 97023001– P. 9 Jefferson County Hearing Examiner 1820 Jefferson St./P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 also requires a showing that “the public will be benefited by the vacation.” Until further study is conducted in anticipation of actualized urban zoning, the street vacation may have a negative effect on future neighborhood commercial development rather than improve neighborhood circulation and access. JCC § 1.12.110(2). At a minimum, the road has “potential usefulness for future area circulation.” RCW 36.87.060. 2. The proposed road vacation is premature, in light of the comprehensive plan adopted for this area. The plan contemplates an Urban Commercial core involving all six of the parcels involved in this petition. They form a commercial hub or “neighborhood” adjacent to SR-19 that will be planned under appropriate capital facilities planning. Until that takes place, it appears that the plan is best served by preserving this 60-foot access-route between SR-19 and the two large commercial properties that do not front the highway. JCC § 1.12.110(1). Depending on the outcome of that subarea planning function (whether formal subarea planning or otherwise), street vacation could be considered in the future if the public benefit becomes clearer. 3. Alice Street, Lillian Street, or Sommerville Roads are longer and more circuitous routes for future access to the commercial properties identified in this Petition. Those more circuitous and narrower alternative routes to the 703/803 Parcels pose potential obstacles to future commercial development and use under adopted zoning, depending on future road plans and mitigation. The 60-foot wide ROW Simms Street corridor should be maintained to preserve the ability of fire, medical, and law enforcement emergency services to access future commercial development, as the UGA is developed. JCC 12.10.110(3). 4. Simms Street can effectively be used for a future access and utility corridor in its current state, whereas it is uncertain how mere retention of a utility easement by the County would affect the future commercial node and private landowners, including the 703/803 Parcel owners. JCC § 12.10.110(4) (“Roads should not be closed, vacated, or abandoned when such routes can effectively be used for utility corridors.”) It is not clear that a County retained utility easement could apply to future utilities not yet in the ground. 5. RCW 36.87.140 suggests that a County utilities easement would be limited to utilities that are existing today. An important unanswered question is whether the County would RECORD OF RECOMMENDATION – SIMMS STREET VACATION PROJECT NO. 97023001– P. 10 Jefferson County Hearing Examiner 1820 Jefferson St./P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have a right to install sanitary sewer lines in a reserved easement, since those are not current utilities in the ground at this time. 6. It is also unclear whether, under the statute, individual landowners would have rights to use and defend the County’s retained easement for utilities that do not involve a franchise granted by the County. Currently, those landowners have the ability to apply for a ROW permit to extend necessary utilities through Simms Street. 7. Denial of the Petition will ensure that planned future commercial development has the flexibility to use Simms Street as part of a subarea plan or similar planning scheme. Street vacation in advance of that planning is in conflict with the Comprehensive Plan’s intent to promote economic development supportive of future surrounding higher density and affordable housing. 8. In the event the Board of County Commissioners were to continue processing the petition for possible approval, the Examiner’s Recommendation below includes recommendations concerning the process and conditions of approval to alleviate some of these concerns. 9. In the event the Board of County Commissioners were to proceed to approve the Petition, the street vacation should not take effect until easements, covenants and other protections and rights for parcels that do not front SR-19 are executed and recorded. These private agreements should include a proviso by which grantor conveys a right of ingress, egress and utilities through grantor’s properties if access to SR-19 at Simms Street is restricted in the future by WSDOT or planning by local regulatory authority. IV. RECOMMENDATION Based on the Findings and Conclusions and consideration of the record in its entirety, the Examiner recommends denial of the Petition to vacate Simms Street at this time, pending the completion of more detailed urban planning in this location to identify needed access and circulation to future commercial properties. In the event the Board of County Commissioners decide to proceed with approval of the Petition, the Examiner recommends the following: A. Recommendations re Process. Prior to a public meeting to consider the Resolution of Street Vacation, the Examiner RECORD OF RECOMMENDATION – SIMMS STREET VACATION PROJECT NO. 97023001– P. 11 Jefferson County Hearing Examiner 1820 Jefferson St./P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recommends the following: 1. That the Resolution be drafted for public comment and incorporate the findings of the County Engineer in Exhibits CA-03 and CA-07; 2. That the Petitioner provide a litigation guarantee for review by the County Engineer, verifying the vesting of ownership of all adjacent parcels described herein, including Petitioners’ ownerships; 3. That all documents to be executed by Petitioner as a condition of approval (see below) be made available to the public and agencies for review in final draft form approved by the County, in advance of the public meeting in which the Resolution will be considered; and 4. That the public meeting for consideration of the Resolution allow public testimony and be held at a time that the Clerk confirms the availability of the 703/803 Parcel owners (Swansons) and the Petitioner so that the parties have an opportunity to address issues identified in the Findings and Conclusions above and comment upon the adequacy of Petitioners’ proposed documents approved by the County and described below. B. Recommendation: Conditions of Approval. The Examiner recommends that any Resolution of Street Vacation for consideration by the Board of County Commissioners should include the following conditions of approval: 1. Prior to or simultaneous with the effective date of the street vacation, ensure the execution and recording of a perpetual, non-exclusive, appurtenant easement from Petitioner to each lot touching and adjoining Simms Street (see parcels listed in the caption, above), at no cost to the grantees, as follows: (a) For permitted construction, maintenance, and uses for ingress, egress and utilities 60 feet wide to and from SR-19, to ensure grantees have access at any width as may be required in the future by any municipality with jurisdiction for the development of Grantees’ properties; [Note: as suggested by Public Works, a restrictive covenant rather than an easement may need to be recorded with respect to benefits granted to Parcels -704 and -802 due to a unity of current ownership by grantor]; (b) For drainage ways across Petitioners’ adjoining properties for stormwater runoff from any improved roadway within the easement; (c) Including a proviso agreeing to provide alternative access to SR-19, in the event future planning or state or local regulations limit access from the vacated Simms Street corridor to the highway; and (d) Including a maintenance agreement providing that costs be apportioned equally among benefitting landowners; 2. Retention by the County of an easement within the subject vacated area for the construction, repair, maintenance and operation of existing and future public utilities and services, including but not limited to sanitary sewer lines; RECORD OF RECOMMENDATION – SIMMS STREET VACATION PROJECT NO. 97023001– P. 12 Jefferson County Hearing Examiner 1820 Jefferson St./P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3. Payment by Petitioner alone of all required compensation to the County for the vacated right-of-way and administrative process, including but not limited to preparation and recording of all related documents, without cost to Jefferson County or adjoining landowners. SO RECOMMENDED, this 25th day of September, 2025. _________________________________ Tom Ehrlichman, Hearing Examiner