HomeMy WebLinkAbout2025 10 20 Appellants Closing Brief
APPELLANTS’ CLOSING BRIEF - 1
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
Stephanie Marshall
Jefferson County Hearing Examiner
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
APPELLANTS’ CLOSING BRIEF
INTRODUCTION
For the reasons below, Appellants John DiMaggio and Michelle Oliver request that the
Examiner deny the shoreline conditional use permit requested by the Applicant, Richard Rathvon.
Because County staff failed to evaluate the full, unified, integrated project as required by
Washington’s Shoreline Management Act, the matter should be remanded with instructions that staff
evaluate impacts on the shoreline environment caused by (a) Mr. Rathvon’s use of Twana Way as a
construction haul route, and (b) widening and other improvements to the road to provide construction
access to the project site. If the Examiner goes beyond what Staff originally evaluated and addresses
these issues for the first time on appeal, then the Examiner should conclude that issuance of the permit
is not supported by substantial evidence and should therefore be denied.
OVERVIEW OF THE CASE
A. The Rathvon shoreline permit application and Twana Way
In November of 2023, Richard Rathvon applied for a shoreline conditional use permit to
construct an approximately 3,800 square foot residence at 660 Twana Way in Quilcene, Washington.
Ex. 12 at 2 (staff report); Ex. A1 at 67 (house plans).1 The Rathvon parcel is accessible only via Twana
1 Because Exhibit A1 contains multiple sub-exhibits, page references are to the pdf page number of the overall
document. Some sub-exhibits also contain attachments. When citations refer to such attachments, the citation will be to
the pdf page number within Exhibit A1 where the attachment is located, plus the referenced page number within the
attachment as a parenthetical.
APPELLANTS’ CLOSING BRIEF - 2
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
Way, a narrow, steep, unpaved, primitive private road known to locals as the “Goat Trail.” Ex. 6 at 9;
Day 1 Tr. at 4:48:29 (DiMaggio testimony). Images of Twana Way taken by Appellant John
DiMaggio may be found at Exhibit A4, documenting the road condition shortly before the appeal
hearing in this case began on September 8, 2025. According to Mr. Rathvon, “[m]uch of the road
surface is about ~8’ to 9’ wide . . . but there are several spots that are more narrow (~7’ to 7-1/2’).”
Ex. A1 at 8 (attachment at 3).
B. Twana Way and the County’s critical areas code
Twana Way winds through a series of steep hillsides and ravines above Dabob Bay, a
waterbody known to provide ecologically significant habitat for Hood Canal summer chum salmon
and Puget Sound Chinook, both of which are listed as threatened under the federal Endangered
Species Act. Ex. 6 at 8. Eelgrass beds—an endangered plant species—are also common in the
offshore areas of Dabob Bay and may occur offshore of the Rathvon property. Ex. A3 at 1. See also
Day 4 Tr. at 01:10:212 (Jill Cooper testimony).
The areas encompassing Twana Way have been mapped by the Northwest Watershed Institute
(“NWI”) as highly susceptible to surface erosion. Ex. A2 at 34 (Figure 10). In these areas, “the soils
and underlying deposits have very low intrinsic cohesive strength,” “all slopes are subject to persistent
erosion of exposed soils,” and, when sediment is eroded, much if it “[is] delivered to stream channels
[and] then carried to the bay in accompanying high stream flows.” Id. at 1–2. In this case, three streams
cross Twana Way and then discharge to Dabob Bay further downhill, creating conduits or pathways
for eroded sediment to enter the bay. Two of those streams have been mapped by the County itself as
depicted at page 114 of Exhibit A1.3 A third stream was mapped by Mr. Rathvon’s environmental
consultants as passing under the road through a small culvert just south of the Rathvon parcel and
project site. See Ex. 3 at 54.
2 Transcript (“TR”) references are to the automated transcripts provided by Ms. Gallaway.
3 See also Ex. A1 at 35 (Attachment at 1; copy of Jefferson County critical areas map sent by Greg Ballard); Day
1 Tr. at 05:12:22 (testimony by Appellant John DiMaggio that he is personally familiar with streams mapped by the
County).
APPELLANTS’ CLOSING BRIEF - 3
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
The threat of harm to the environment of Dabob Bay from eroded sediment is clear. “The
physical and biologic environment of the bay is finely attuned to the frequency and magnitude of
[high stream flows]; therefore an important aspect of assessing risks to the bay is consideration of
human activities that alter the frequency and magnitude of sediment delivery.” Ex. A2 at 1. The
aquatic environment of the bay is “not well adapted . . . to deal with changes in the frequency and rate
at which mud, silt, and associated organic materials are carried to the bay, with the consequence that
actions in the watershed that affect erosional processes alter both the physical environment and
associated ecosystem of the bay.” Id. at 4. “Activities that increase rates of sediment production and
transport within the watershed will increase rates of sediment delivery to the bay,” with streams
“predominately carry[ing] fine-grained sediment.” Id. at 22. Two activities known to increase
sediment delivery to the bay are “road building” and “drainage from roads.” Id. at 7, 18.
In addition to being highly susceptible to surface erosion, many of the areas encompassing
Twana Way constitute actual (not just potential) landslide hazard areas within the meaning of Chapter
18.22 of the Jefferson County Code, the County’s critical areas code under the GMA.
In particular, JCC 18.22.510(1)(b) defines numerous environmental attributes that qualify as
landslide hazard areas when those areas are “mapped” by Jefferson County “as high or moderate
geologically hazardous areas.” JCC 18.22.510(1). Among those environmental attributes are “[a]reas
with a slope of 40 percent or steeper and with a vertical relief of 10 or more feet, except areas
composed of bedrock.” Id. at (1)(b)(ix). Exhibits A13 and A14 identify numerous locations along
Twana Way that meet this description, all of which have been mapped by Jefferson County as
“moderate” landslide hazard areas. Compare Exs. 13 & 14 (areas shaded in red) with Ex. A1 at 110
(Jefferson County mapping of these areas as moderate landslide hazard areas). These areas encompass
the majority of the length of Twana Way. See Exs. 13 & 14 (areas shaded in red). They are landslide
hazard areas as defined by the plain language of the code.
At hearing, it was suggested by Mr. Rathvon’s attorney and consultants that the County’s
critical areas maps are merely a “screening tool,” and that even if an area meets one or more of the
criteria for being a geologically hazardous area at JCC 18.22.510(1)(a), it still may not qualify as such
APPELLANTS’ CLOSING BRIEF - 4
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
unless the slopes are affirmatively demonstrated to be unstable or prone to sliding. See, e.g., Day 1
Tr. at 2:13:01–2:39:08; Day 3 Tr. at 1:02:17. That is an incorrect reading of the code.
Instead, JCC 18.22.510(1) makes it abundantly clear that to qualify as a landslide hazard area,
an area need only meet two criteria. The first criterion is exhibiting one or more of the environmental
attributes defined at JCC 18.22.510(1)(a), such as being comprised of slopes of 40 percent or steeper
with a vertical relief of 10 or more feet. The second criterion is that such areas must be mapped by
Jefferson County as “high or moderate geologically hazardous areas.” JCC 18.22.510(1). Here, it is
uncontested that Jefferson County has, in fact, mapped nearly the entirety of the area surrounding
Twana Way as a moderate landslide hazard area. Ex. A1 at 110–11. Nor is it contested that the vast
majority of areas surrounding Twana Way meets the description of having “slope[s] of 40 percent or
steeper and with a vertical relief of 10 or more feet,” JCC 18.22.510(1)(a)(ix)); Exs. A13 & A14.
These landslide hazard areas encompass the two streams that cross the road as mapped by Jefferson
County. See id. They also come very near the area where the third stream crosses under the road just
south of the Rathvon parcel. Id.
Because these areas qualify as landslide hazard areas within the meaning of the Jefferson
County Code, any “land disturbing activity, development, or activity on land” within these areas must
be reviewed for compliance with JCC Chapter 18.22. See JCC 18.22.200(1). That, in turn, means that
any such activity must be evaluated and supported by one of the three types of “geological
assessments” described at JCC 18.22.540(4). Those types include, in order of complexity: (a) a
“geological letter,” which is appropriate when “the geotechnical professional finds that no moderate
or high hazard area exists within 200 feet of the site”; (b) a “geological report,” appropriate when “the
geotechnical professional finds that a moderate or high geologically hazardous area exists within 200
feet of the site, but will not impact the site or need engineering design recommendations”; and (c) a
“geotechnical report,” required when “the geotechnical professional finds that a moderate or high
geologically hazardous area exists within 200 feet of the site, and will require engineering design
recommendations or other mitigation measures necessary in order to construct or develop within the
geologically hazardous area.” JCC 18.22.540(4)(a)–(c). Requirements for these reports are at JCC
APPELLANTS’ CLOSING BRIEF - 5
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
18,22.905 (general requirements for all report types) and JCC 18.22.945 (requirements for
geologically hazardous area reports). A common element for both geological and geotechnical reports
is that they must evaluate impacts on stormwater runoff (quantity, quality, and runoff patterns) and
erosion. See JCC 18.22.945(2)(f–i) (requirements for geological reports); JCC 18.22.945(a)–(c)(i)
(requirements for geotechnical reports).
These reporting requirements are triggered, inter alia, by any “land disturbing activity” or
“activity undertaken on land” within an actual or potential landslide hazard area. JCC 18.22.200(1).
The code does not define the term “activity undertaken on land.” However, under JCC 18.22.120, this
term is to be “liberally construed with a view to affect [the] purpose and intent” of the critical areas
code, which purpose is to “protect critical areas.” JCC 18.22.110.
The code defines “land disturbing activity” to mean,” without qualification, “any activity that
results in movement of earth, or a change in the existing soil cover (both vegetative and nonvegetative)
and/or the existing soil topography.” JCC 18.10.120 (emphasis added).
C. Use of Twana Way as a construction haul route
An essential element of Mr. Rathvon’s shoreline permit application is the use of Twana Way
as a construction haul route. The delivery of construction materials to the site of Mr. Rathvon’s new
house will require numerous large trucks to traverse the length of Twana Way. The circumstances
and timing of this appeal provided a unique opportunity to witness first-hand how the construction
vehicles accessing Mr. Rathvon’s parcel will likely affect the surface of the road and adjacent areas.
In particular, one of the issues presented in this appeal has been whether large construction
vehicles can access Mr. Rathvon’s parcel without Mr. Rathvon having to widen the road or make
other physical improvements to the road (an issue discussed in more detail below). Attempting to
prove that such trucks will, in fact, be capable of accessing his parcel without first having to widen
the road, Mr. Rathvon presented photographs of other large construction vehicles using the road in
recent weeks for a smaller home improvement project at the Von Bargen property (Ex. RR-38) and
to install a new septic system at the Hawley property (Ex. RR-45). It is true that these trucks were
APPELLANTS’ CLOSING BRIEF - 6
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
able to access the Von Bargen and Hawley properties. But in doing so, they caused significant damage
and widened the road as a de facto matter.
Exhibit A18 contains 24 images of Twana Way after it was used by the Von Bargen and
Hawley construction vehicles in recent weeks. Those images show that the trucks regularly needed to
track outside the gravel road surface, often by several feet. In so doing, the trucks ground down the
dirt banks on the uphill side of the road and even dislodged large chunks of earthen material from the
uphill slope. See, e.g., Ex. A18 at 2, 5, 14, 15, 18, 19, & 24. The trucks crushed vegetation and turned
the vegetated surface on the downhill side of the road into bare dirt. Id. at 1, 8, 12, 13, 20, 23. The
effect is that the road is now significantly wider due to the trucks repeatedly grinding down the sides
of the road. Id. at 2:56:20 (explaining “right now, the roadway is . . . 4 feet wider”); id. at 3:13:05
(explaining that Twana Way “[h]as been widened because of that traffic”); id. at 3:39:20 (affirming
that the road “absolutely” needed to be widened to accommodate the trucks).
Mr. Von Bargen himself acknowledged that the road is too narrow for large construction
vehicles. See Ex. A20 at 2 (writing “[w]ith some work, I could probably make the road accessible to
a lumber and concrete truck in order to complete my remodel project. But I would rather have a road
builder do that for me.”). Instead of formally widening the road with road-building equipment and
pursuant to a particular plan of construction, the road was de facto widened by allowing the trucks to
repeatedly trample and crush the non-road areas adjacent to Twana Way.
In addition to widening the road, repeated damage to the road by the Von Bargen and Hawley
construction vehicles caused large sections of the road to now be covered in two to three inches of
fine dust, which my now wash downhill during rain events. See, e.g., id. at 1, 2, 3, 8, 10, 23. Day 4
Tr. at 2:55:53 (DiMaggio testimony that the trucks are “grinding down and causing, for example, road
dirt converted to dust that’s 2 to 3 inches deep”); id. at 3:15:42 (explaining vegetated areas along the
road are “becom[ing] literally inches of dust. It’s pulverizing the dirt, and it’s softening the surface,
and I measured the dust, and in some places, the dust is 3 inches deep.”).
Damage to the road has both regulatory and environmental consequences. From a regulatory
perspective, the images at Exhibit A18 show that repeated use of Twana Way by large construction
APPELLANTS’ CLOSING BRIEF - 7
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
vehicles meets the definition of a “land disturbing activity” at JCC 18.10.120. The images show that
trucks similar to those that will likely be used by Mr. Rathvon to move construction materials and
equipment to his property have resulted in the “movement of earth” (e.g. grinding down the uphill
sides of the road and depositing that material within the road itself in the form of dust), in “change[s]
in the existing soil cover” (converting the vegetated sides of the road to bare earth), and changes in
the “existing topography” of the areas adjacent to the road (again, due to grinding down the sides of
the road). The definition of “land disturbing activity” at JCC 18.10.120 includes “any” activity that
results in movement of earth, a change in the existing soil cover, or a change in the existing soil
topography. The images at Exhibit A18 demonstrate that repeated use of the road by heavy
construction vehicles—as Mr. Rathvon plans to do—fits this description and therefore may only be
allowed after following the reporting protocols of the critical areas code described above.4
From an environmental protection perspective, there is an obvious risk that the dust and
sediment that now covers Twana Way—caused by the very type of construction vehicles that Mr.
Rathvon plans to use for his new home construction—will ultimately make its way downhill to the
sensitive aquatic environment of Dabob Bay. As discussed above, three streams cross Twana Way—
two over the road and one under the road. These streams provide a natural conduit for dust and fine
sediment churned up by the trucks to reach the waters of Dabob Bay. This, too, is likely to be
exacerbated by Mr. Rathvon’s future use of the road by numerous similar construction vehicles. See
Ex. A2 at 2 (explaining “[i]n the context of Taboo/Dabob Bay . . . all sediment produced in the
watershed eventually ends up in the bay, which serves, therefore, as the focal point for the cumulative
effects of human activities in the entire watershed”).
This risk of sediment transport to Dabob Bay caused by heavy truck traffic was raised in the
September 26, 2024, comment letter by David S. Parks, a licensed geologist at Crescent
Environmental.5 In his comment letter, Mr. Parks noted specifically that “[u]se of the road by heavy
4 Likewise, use of Twana Way as a construction haul route would obviously meet the plain-language meaning of
an “activity undertaken on the land,” another trigger for the requirements of the County’s critical areas code at JCC Chapter
18.22.
5 It is our understanding that Mr. Parks has since taken another job and was therefore unavailable at the time of
the hearing to testify on behalf of Appellants.
APPELLANTS’ CLOSING BRIEF - 8
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
vehicles such as loaded concrete trucks has the potential to cause surface erosion and sediment to
enter the adjacent stream, which may then transport sediment downstream to Dabob Bay.” Ex. 6 at
18. Consistent with the requirements of the critical areas code, Mr. Parkes went on to explain that
“[t]his primitive road should be assessed to determine if it can bear the heavy loads anticipated during
truck use without failing and delivering sediment to downstream waters.” Ex. 6 at 18. See also Day 2
Tr. at 01:43:41 (Mr. Cedzich agreeing with Mr. Parks’ assessment). This comment was never
addressed by Mr. Rathvon’s geological consultants (although they responded to the vast majority of
other points made by Mr. Parks). See generally Ex. 7 (failing to respond to comment about sediment
transport). At the hearing, Ms. Frostholm testified that she did not require Mr. Rathvon’s consultant
to respond to this concern because she mistakenly thought it related only to physical improvements
to the road, not to physical damage caused by heavy truck traffic. Day 1 Tr. at 3:32:56–3:35:28. In
doing so, Ms. Frostholm misunderstood Mr. Parks’ comment on this point which had nothing to do
with physical road improvements. See id.
Further, the risk of erosion and sediment transport to the bay is likely to be exacerbated by the
destruction of drainage features along Twana that were installed and intended to control runoff. For
many years, “water bars” have been maintained at multiple locations along Twana Way to manage
stormwater runoff. See, e.g., Day 2 Tr. at 5:29:34 (Dan McShane testimony). When asked by Mr.
Rathvon’s attorney whether use of the road by construction vehicles would “lead to environmental
impacts to the shoreline environment or waters of Dabob Bay,” Mr. McShane answered that “so long
as the water bars and routing of surface water runoff off the road is maintained under its current
condition, it will not pose a risk to Dabob [Bay].” Id. at 5:50:35. But as Mr. DiMaggio testified, the
water bars have already been destroyed as part of the Von Bargen project. Day 4 Tr. at 05:28:01–
05:29:11. Thus, the one thing Mr. McShane stated was important for preventing harm to the bay (the
water bars) is now entirely destroyed and no longer present.
Damage to the road caused by construction vehicles also threatens to interfere with pedestrian
use of Twana Way to reach the waters of Dabob Bay—waters that are reserved for the public’s
“unrestricted use” for “fishing, boating, bathing, swimming, water skiing and other related
APPELLANTS’ CLOSING BRIEF - 9
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
recreational purposes.” Ex. CL-25 at 4 (Rathvon deed). Mr. DiMaggio and Ms. Oliver testified that
they frequently walk Twana Way for personal recreation, and that they do so (in part) to reach the
Hawley property where they have permission to access the public waters of the bay itself. See, e.g.,
Day 3 Tr. at 02:05:56. But since the Von Bargen and Hawley trucks have damaged the road, it has
become increasingly difficult for them to do so. See Day 3 Tr. at 01:47:00, 03:27:54, & 05:19:29 (Mr.
DiMaggio and Ms. Oliver testifying that it is much more difficult to walk on the road now with so
much dust and rock covering the surface caused by the Von Bargen construction). With Mr. Rathvon
undertaking a significantly larger construction project, these problems are likely only to increase with
greater construction traffic on Twana Way for the Rathvon home construction.
D. Physical road improvements to Twana Way
In addition to using Twana Way as a construction haul route and threatening even further
damage to the road by increased construction traffic, Mr. Rathvon and his agents have repeatedly
stated that they will likely need to physically widen the road and make other improvements so that
large trucks and construction vehicles can access the Rathvon project site. It is true, as the County and
Mr. Rathvon stressed at the hearing, that on January 30, 2025, Mr. Rathvon told Ms. Frostholm (the
planner in charge of reviewing his shoreline permit application) that he was not affirmatively
“proposing” to alter or expand the road, “including ‘cut and fill’ activities or removal of trees.” Ex. 8
at 3 (emphasis added). But at the same time, Mr. Rathvon’s agents were repeatedly telling Mr. Ballard,
who was in charge of reviewing Mr. Rathvon’s building permit application, that road improvements
were, in fact, likely to be required for construction access. See, e.g., Ex. A1 at 34 (County employee
Michael Byers reporting “[t]he applicant’s representative and contractor were in today to talk with
Greg and Phil about improving the road and it reminded me to check in on their building permit”).
These communications began on January 6, 2025, when Terry McHugh—the “project
representative”6—emailed Mr. Ballard and asked that the County add language to the building permit
as a blanket approval for any future “repairs, maintenance, and improvements to Twana Way to allow
for safe travel necessary for construction and inspections.” Ex. A22 (emphasis added).
6 See Ex. 3 at 71 (preapplication conference notes identifying Mr. McHugh as the “project representative”).
APPELLANTS’ CLOSING BRIEF - 10
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
Mr. Ballard responded to Mr. McHugh’s email on January 17, 2025, requesting additional
information about the scope and nature of the proposed improvements, including the “[t]ype, timing,
frequency, and sequence of the activity to be conducted,” “[t]ype of equipment to be used,” “[m]anner
in which the equipment will be used,” and “best management practices to be used.” Ex. A1 at 36–37.
Mr. Ballard also explained that pursuant to JCC 18.22.230, no maintenance, repairs, or improvements
could be made to the road without a demonstration that such work will not “‘further alter, impact, or
encroach upon critical areas or critical area buffers’” and that “‘no reasonable or practicable
alternative exists.’” Id. (quoting JCC 18.22.230(5)(b)). Obviously, expanding the road surface itself—
directly or indirectly—would not meet this standard as it would involve further encroachments into
the adjacent landslide hazard areas.
In response to Mr. Ballard’s January 17 email, Mr. McHugh emailed Dan McShane on
January 31, 2025, reporting that Mr. Ballard “would like to see a brief statement from you regarding
the stability of the Twana Way roadway” and that the reason for this request was that “Rich [Rathvon]
may have to make some minor improvements during construction as heavy traffic increases.” Ex. A1
at 58. Mr. Rathvon was copied on this email and did not correct Mr. McHugh’s statement that “minor
improvements” to the road may be required.
On February 5, 2025, Donna Frostholm and Andy Gosnell had a meeting about the Rathvon
application, where Mr. Gosnell noted that Mr. Rathvon’s contractor was being “wishy washy on
whether road improvements” would be required. Ex. A1 at 53. Ms. Frostholm testified that she and
Mr. Gosnell were “trying to understand whether road improvements would be needed, and whether
there was agreement between the applicant and his contractor as to whether road improvements would
be required.” Day 1 Tr. at 1:13:00 (testimony of Donna Frostholm). Notably, their uncertainty about
Mr. Rathvon’s true intent persisted even after his statement on January 30, 2025, that he was not
“proposing” any improvements. Compare Ex. 8 at 3 (January 30, 2025, statement by Mr. Rathvon
that “we are not proposing to alter or expand the road”) with Ex. A1 at 58 (meeting notes from
February 5, 2025, noting that Mr. Rathvon’s contractor was still being “wishy washy” about needing
to improve the road) and Day 1 Tr. at 1:30:00 (Mr. Frostholm testifying that at the time of her
APPELLANTS’ CLOSING BRIEF - 11
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
February 5, 2025, meeting with Mr. Gosnell, the County was still “trying to understand whether road
improvements would be needed”).
Later, on February 12, 2025, Geoff Malick (Mr. McShane’s partner at Stratum Group)
emailed Mr. McHugh that “there will be no issue with minor road improvements to accommodate
trucks and equipment” and that “[b]ased on what I saw, the required work will primarily entail
widening the road in a few places and likely regrading in places where the road is too steep and
uneven.” Ex. A1 at 58 (Attachment at 1; emphasis added). This email was sent to Mr. Ballard, so the
County was well aware of Mr. Rathvon’s intent to widen the road to accommodate construction
vehicles. Ex. A1 at 58. No map or other documentation was provided to explain where the proposed
road widening would occur.
Two weeks later, Mr. Malick sent a longer report entitled “Geologic Hazard Assessment for
Twana Way Improvements” directly to Mr. Rathvon. There, Mr. Malick concluded that “road
widening will be required in several places in order to accommodate large trucks and/or other
construction equipment.” Ex. 9 at 2 (emphasis added). He explained that “[i]n some locations, road
widening can be accomplished by expanding the travelled roadway into the existing shoulder areas,”
but that in other areas “road widening will require excavation into existing cut slopes.” Id. He also
concluded that “[i]n addition to road widening, regrading of the road may be required to lessen the
steepness of the roadway and also to repair holes and ruts.” Id. This report concludes with a series of
geotechnical “recommendations” for the road widening. Id. at 4. But again, no map or other
documentation was provided to explain where the proposed road widening would occur.
On March 13, 2025, Mr. Rathvon personally emailed Mr. Malick’s longer report to Donna
Frostholm, expressing frustration that he thought Mr. Malick’s earlier email (Ex. A1 at 58) was
already sufficient for him to get a permit. Id. at 1. Mr. Rathvon admitted that he read the subject line
of Mr. Malkik’s report, which clearly indicated the need for road improvements. Day 2 Tr. at
00:54:29. At no time did Mr. Rathvon correct Mr. Malick’s statements or otherwise indicate that he
did not, in fact, intend to widen or regrade the road as stated in the report.
APPELLANTS’ CLOSING BRIEF - 12
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
Last, all of these communications came on the heels of Mr. Rathvon’s October 2023
presentation to his neighbors in which he presented a detailed plan for widening and improving Twana
Way—a proposal that Mr. Rathvon subsequently emailed to Phil Cecere at the County’s planning
department. See Ex. A1 at 8 (attachment). In that document, Mr. Rathvon laid out two detailed plans
for improving the road—a lower-cost option and a higher-cost option—both of which involved
significant widening of the road, removal of trees, regrading, and filling the road surface with multiple
tons of compacted gravel. See id. (Attachment at 7–10). Although Mr. Rathvon pitched this plan to
his neighbors as an effort to increase emergency response times for homes along Twana Way, he and
Mr. Von Bargen indicated at the meeting that the true purpose of the project was to help with
construction access to their respective project sites. Day 1 Tr. at 04:53:08 (DiMaggio testimony); Day
3 Tr. at 05:03:47 (Oliver testimony). Further, it is evident from the plain language of Mr. Rathvon’s
Power Point presentation that he was, in fact, contemplating improvements to the road over and above
the improvements that he pitched to his neighbors, specifically in relation to his construction project.
See Ex. A1 at 8 (Attachment at 11; Mr. Rathvon writing “[i]n order to provide access by construction
vehicles, if road alterations are required outside of agreed-upon road improvement scope, then this
cost should be borne by constructor”) (emphasis added).
All of this demonstrates that, during the County’s permit review, Mr. Rathvon and his agents
were actively telling the County that they would likely need to widen and make other improvements
to Twana Way for construction vehicle access. There is no other way to view the record. It was their
intent, all the time, to widen and make other improvements to the road.
Yet at the hearing, Mr. Rathvon attempted to downplay these communications to the County,
stating he had no knowledge that his own consultants and agents were telling the County that the road
would need to be widened. His testimony is not credible. Mr. Rathvon was well aware of what his
agents and consultants were saying, as he was copied on many of the communications, was provided
with Mr. Malick’s report (the very title of which was “Geologic Hazard Assessment for Twana Way
Improvements”), he submitted Mr. Malick’s report personally to the County, and never once did he
attempt to correct or to clarify—before this appeal was filed—that he did not, in fact, intend to widen
APPELLANTS’ CLOSING BRIEF - 13
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
the road. Mr. Rathvon’s testimony that all of his agents and consultants were simply on a lark that
was unknown to him is belied by the fact that he was copied on their communications and personally
sent Mr. Malick’s report to Ms. Frostholm. Indeed, it is telling that Mr. Rathvon changed his story
only after Appellants moved for summary judgment, arguing (successfully) that the County could not
lawfully exclude Mr. Rathvon’s planned road improvements from its shoreline permit review on the
simple basis that Twana Way is located outside the 200-foot shoreline area as defined by
Washington’s Shoreline Management Act. It was only after Appellants filed that motion that Mr.
Rathvon began trying to distance himself from the statements made by his agents and consultants
during permit review.
And even after Mr. Rathvon and his agents attempted to distance themselves from their prior
statements, they still have never said that road improvements will not, in fact, be required. Mr. Richert
(Mr. Rathvon’s contractor) stated in his sworn summary judgment declaration that “improvements
might be required” based on “weather conditions, specific construction methods, and the size and
types of construction vehicles that we would ultimately employ.” Richert Decl. in Opposition to
Appellant’s Mot. for Summary Judgment, ¶ 4 (July 7, 2025) (emphasis added). Mr. Rathvon echoed
this statement, averring that “[i]n the future, if it is determined that maintenance or improvements
may be advisable, . . . I will seek any necessary County approvals.” Rathvon Decl. in Opposition to
Appellant’s Mot. for Summary Judgment, ¶ 17 (July 7, 2025). In other words, even while they have
tried to distance themselves from clear statements made to the County that road improvements will
likely be needed to provide construction access to the project site, Mr. Rathvon and his contractor
have continued to hold out the possibility that improvements may, in fact, be necessary. They just
have not figured that out yet.
Finally, although Mr. Malick attempted to re-cast his prior conclusion that “road widening
will be required” as merely a statement that road widening “may be required”—see Day 3 Tr. at
04:17:18 (Mr. Malick testifying that “I really meant to say ‘may be required’”)—the facts presented
at hearing confirm the truth of his original statement. The road did, in fact, need to be widened for the
Von Bargen and Hawley trucks, as evidenced by the photographs at Exhibit A18. There is no reason
APPELLANTS’ CLOSING BRIEF - 14
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
to believe the same will not be true of Mr. Rathvon’s construction vehicles, as Mr. Rathvon’s own
agents and consultants have repeatedly said throughout the County’s permit review process. It is not
an accident that Mr. Rathvon’s agents and consultants repeatedly told the County that the road will
need to be widened to provide construction access. By all the evidence in the record, the road is not
sufficient to provide access without having to be widened, one way or another. Yet, Mr. Rathvon has
no legal authority to widen the road or to make other improvements, either directly or indirectly.7
E. The County’s staff report
On April 24, 2025, Ms. Frostholm issued the County’s staff report recommending approval
of Mr. Rathvon’s shoreline conditional use permit, which may be found at County Exhibits 9 and
CA02. The staff report acknowledges that impacts to Twana Way were the primary concern raised
by members of the public who commented on Mr. Rathvon’s shoreline application. Ex. 9 at 2.
However, Ms. Frostholm found that, as a legal matter, any improvements to Twana Way would be
beyond the scope of the County’s permit review because the road itself is located outside the 200-foot
shoreline area defined by Washington’s Shoreline Management Act (“SMA”).8 This is the only basis
stated the staff report for the County’s decision to ignore future road improvements as an element of
its permit review.
Nor is there any evidence that the County actually evaluated potential impacts caused by using
Twana Way as a construction haul route, such as increased erosion of the road and sediment washing
7 While Mr. Rathvon and his agents repeatedly expressed their need to widen the road during the County’s permit
review, there is no evidence that Mr. Rathvon actually has legal authority to widen or make other improvements to the
road. The original easement referenced in the various deeds to Mr. Rathvon’s property (recorded on January 19, 1970)
provides access via a 30-foot easement along Twana Way, as well an obligation to share in the road’s “maintenance.” Ex.
CL18 (original 1970 easement). See also Exs. CL19 & CL22–25 (deeds referencing original easement). Another deed,
recorded on July 24, 1982, establishes a 60-foot easement over the road, together with rights to “install” “both roadways
and utilities,” which Mr. Rathvon cited as implying a right to make improvements. Ex. CL21. But the later easement is for
the benefit of lands within Government Lot 1 (the site of the subdivision known as Dabob View Tracts, which includes
Appellants’ property, see Ex. CL20) and does not benefit Mr. Rathvon’s property outside Government Lot 1. It is for this
reason that the 1982 easement is not referenced in a single deed to Mr. Rathvon’s property. He has no legal authority to
widen the road or to make other improvements, whether directly or indirectly.
8 See Ex. 9 at 4 (finding “[e]valuation of Twana Way, which is located beyond the limits of shoreline jurisdiction,
is outside the scope of the shoreline application”); id. (acknowledging that “the applicant submitted a Geology Hazard
Assessment for Twana Way Improvements” but concluding that “[r]oad improvements are not proposed within shoreline
jurisdiction or at the parking area on the Rathvon parcel so this report is beyond the scope of this proposal to construct a
single-family residence”).
APPELLANTS’ CLOSING BRIEF - 15
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
downhill to the bay via the three streams discussed above. There is no discussion of this issue in the
staff report. Nor did Ms. Frostholm testify at the hearing that she evaluated any potential impacts to
the shoreline from using Twana Way as a construction haul route.
Although not stated in the staff report, Ms. Frostholm testified that after hearing the testimony
and evidence at hearing, she would recommend that an additional condition be added to Mr.
Rathvon’s shoreline permit—namely, that he be responsible for returning the road to its “currently
existing condition” after construction is complete. Day 4 Tr. at 00:19:46. Ms. Frostholm explained
that the burden would be on Mr. Rathvon to demonstrate compliance with this condition. Id. at
00:20:44. However, she did not explain how baseline data would be collected on the condition of the
road to ensure compliance. This additional condition of approval was also recommended by Mr.
Rathvon’s own environmental consultants. See, e.g., Ex. RR-2 (stating that “any damage to the
existing roadway should be restored to its original condition or better” and that “typical Best
Management Practices (BMPs) [should] be used during construction”); Ex. 8 at 58 (same).
STANDARDS OF REVIEW
To obtain a shoreline conditional use permit, an applicant must demonstrate compliance with
the following criteria:
(a) That the proposed use will be consistent with the policies of
RCW 90.58.020 [Washington’s Shoreline Management Act] and this
program.
(b) That the proposed use will not interfere with normal public use of public
shorelines.
(c) That the proposed use of the site and design of the project will be compatible
with other permitted uses within the area.
(d) That the proposed use will not cause adverse effects to the shoreline
environment in which it is to be located.[9]
(e) That the public interest suffers no substantial detrimental effect.
JCC 18.25.590(2)(a–e). These criteria directly implicate damage to the road (which would adversely
affect the public interest under sub-(e) of these criteria), damage to the shoreline environment and
9 Note that this criterion prohibits any adverse impacts to the shoreline environment, not just “significant” or
“substantial” adverse impacts. There is no magnitude requirement. Any and all adverse impacts are prohibited.
APPELLANTS’ CLOSING BRIEF - 16
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
waters of the Dabob Bay (implicating sub-(d)), and interference with Appellants’ access to the public
waters of Dabob Bay (implicating sub-(b)). Mr. Rathvon bears the burden of demonstrating
compliance with each of these criteria. JCC 18.25.670.
Under the JCC, administrative shoreline conditional use permits are a “Type II” approval
subject to the procedural requirements of JCC 18.40.270. However, the County does not have final
decision-making authority. Instead, the Washington Department of Ecology is the state agency
charged with final decision-making authority on all such permits. See JCC 18.25.590 (“Final authority
for conditional use permit decisions rests with the Department of Ecology”). The County essentially
makes a recommendation, and Ecology makes the final decision.
The JCC does not address the standards of review to be applied in an appeal of the County’s
approval of a shoreline conditional use permit. However, the Hearing Examiner Rules of Procedure
(“RoP”) provide that in any appeal of a Type II decision, “[i]ssues of law are subject to a de novo
standard of review” and that “[i]ssues of fact are subject to a substantial evidence standard of review.”
RoP 5.14(j)(i). Under the de novo standard, “the examiner determines whether legal issues were
correctly decided.” RoP 1.1(e). Under the substantial evidence standard, “the examiner’s review is
deferential and requires the examiner to view the evidence and reasonable inferences therefrom in the
light most favorable to the party who exercised the fact-finding.” RoP 1.1(q).
ARGUMENT
A. Under the SMA, the County must evaluate potential impacts from the “full,
unified and integrated physical project,” which includes (a) use of Twana Way
as a construction haul route, and (b) improvements to the road itself.
As all parties now agree, under the SMA, the County is not permitted to limit its review of the
Rathvon project to merely those elements that are located within the 200-foot shoreline area. Instead,
as stated in Mr. Rathvon’s pre-hearing brief, “[w]hen 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
the shoreline jurisdiction ‘to determine to what extent those portions of the project outside the
[shoreline] may adversely impact the shoreline of the state.’” Rathvon Pre-Hearing Br. at 10 (quoting
APPELLANTS’ CLOSING BRIEF - 17
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
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)).
An element outside the 200-foot shoreline area is part of the “‘full, unified and integrated
physical project’ when the element is an ‘integrated and non-several part[] of the total development.’”
Id. (quoting 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)). In laymen’s terms—and as stated by Mr. Rathvon
himself—“‘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 function.’” Id. at 10–11 (emphasis added).
As the Hearing Examiner has concluded, “where there is an off-site component of a project, the
project is within the shoreline environment, and the off-site component is part of a full, unified and
integrated project that includes the proposal within the shoreline environment, the local jurisdiction
must review the offsite component as part of the overall shoreline proposal.” Order on Appellants’
Mot. for Summary Judgment at 4–5 (July 11, 2025).
The issues in this case revolve around two off-site components of the Rathvon project that
will occur outside the 200-foot shoreline area, but that may still result in adverse impacts to the
shoreline environment and waters of Dabob Bay. These are (1) use of Twana Way as a construction
haul route, and (2) improvements to the road itself to allow access by construction vehicles.
The first of these off-site components of the project is not disputed—Mr. Rathvon will clearly
need to use Twana Way for construction access to his project site, as the road provides the only means
of access. The County itself has now admitted that impacts from using Twana Way as a construction
haul route are germane to the criteria of approval for shoreline conditional use permit, as evidenced
by Ms. Frostholm’s new recommendation that a condition be added to Mr. Rathvon’s shoreline permit
requiring him to return the road to its original condition. Nor can it be disputed that use of Twana
Way by large construction vehicles poses a risk of harm to the shoreline environment. As shown in
Exhibit A18, similar construction vehicles used for the Von Bargen and Hawley projects—which Mr.
Rathvon repeatedly cited as examples of the types of trucks likely to be needed for his own project—
have caused significant damage to the road and adjacent areas. Further, as Mr. Cedzich testified,
APPELLANTS’ CLOSING BRIEF - 18
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
“heavy construction traffic . . . can substantially alter loading conditions, drainage patterns, and pore
water pressures, thereby increasing the likelihood of slope movement or failure. Without stability
modeling, the potential for induced slope instability from haul trucks, construction equipment, and
new embankment loads remains unquantified and unmitigated.” Ex. A16 at 1.
Perhaps most concerning, the repeated crushing and grinding of areas adjacent to the road has
caused the road itself to be covered in two to three inches of dust, which may now wash downhill to
the bay itself. The water bars previously installed along the road—and which Mr. McShane cited as
being important for preventing damage to the shoreline environment—have now been destroyed, thus
facilitating the uncontrolled runoff of sediment-laden stormwater. The road itself crosses three
streams—one of which was delineated by Mr. Rathvon’s own consultants, and two of which have
been mapped by the County—which may act as natural conduits for transporting sediment-laden
runoff directly to the sensitive aquatic environment of Dabob Bay.
As discussed above, the environment of Dabob Bay is “not well adapted . . . to deal with
changes in the frequency and rate at which mud, silt, and associated organic materials are carried to
the bay.” Ex. A2 at 4. The areas surrounding Twana Way have been identified as being highly
susceptible to erosion, with streams providing the primary pathway for eroded sediment and other
materials to enter the bay. Id. at 1–2. Two activities known to increase sediment delivery are “road
building” and “drainage from roads.” Id. at 7, 18. With the downstream environment providing
important habitat not only to aquatic fish species (two of which are listed under the Endangered
Species Act), but also to endangered eelgrass, the County cannot fulfill its duties and responsibilities
under the SMA without first evaluating the potential impacts of using Twana Way as a construction
haul route for the Rathvon project.
The second off-site component that the County should have evaluated is widening or
otherwise improving Twana Way to facilitate construction access to the Rathvon property. As
discussed above, Mr. Rathvon and his consultants and agents repeatedly stated during permit review
that Twana Way would likely need to be widened for construction vehicles, even going so far as to
make geotechnical design recommendations for cut slopes and other improvements. Ex. 9 at 4. The
APPELLANTS’ CLOSING BRIEF - 19
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
images in Exhibit A18 provide concrete evidence supporting Mr. Malick’s original determination that
Twana Way will, in fact, need to be widened for construction vehicles, as evidenced by the Von
Bargen and Hawley trucks repeatedly tracking outside the existing road surface to reach those
properties, crushing and destroying areas adjacent to the road in the process. And even after Mr.
Rathvon and his agents began distancing themselves from their earlier statements during permit
review, at no time has anyone testified or presented evidence that the road will not, in fact, need to be
widened. At best, they have testified that the road “may” or “might” need to be widened, indicating
that it is indeed possible that road widening will be necessary but that they have not figured that out
yet. See, e.g., Richert Decl., ¶ 4.
But ignoring a key issue is not a defense. An important element of review under the SMA is
that all necessary components of a project must be reviewed in a unified, cohesive fashion, so that all
potential impacts to the shoreline environment may be considered before the shoreline permit is
issued. This rule of law naturally requires a permit applicant to figure out which elements are
necessary and which elements are not. See, e.g., Citizens to Stop the SR 169 Asphalt Plant, 2023 WL
2977069 at *41 (explaining “[a] shoreline permit application must describe the full, unified, and
integrated physical project, both within and without the shoreline jurisdiction”) (emphasis added).
Simply deferring that determination to a later date is not acceptable. If it were, all manner of necessary
project components could escape review under the SMA simply by deferring judgment about their
necessity to a later date. Such an approach would undermine the Act’s objective of ensuring that all
necessary project elements “are reviewed together in a cohesive fashion.” Order on Summary
Judgment at 4–5.
B. The Examiner should remand the Rathvon permit application to County staff
with instructions to evaluate potential impacts to the shoreline environment in
the first instance.
As discussed above, there is no evidence that County staff evaluated potential impacts to the
shoreline environment caused by Mr. Rathvon’s use of Twana Way as a construction haul route.
There is no evidence that staff evaluated potential impacts from widening or otherwise improving the
road. Nor did staff require Mr. Rathvon to disclose where and how Twana Way might need to be
APPELLANTS’ CLOSING BRIEF - 20
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
widened or improved, or determine if such improvements will (or will not) be necessary. The only
conclusion on these issues in the staff report is that they are beyond the scope of the County’s review
authority under the SMA because Twana Way is located outside the 200-foot shoreline area, a
conclusion that is fundamentally wrong on the law. Under the SMA, the County must evaluate all
necessary components of the project regardless of where they are located.
In turn, the Examiner sits in an appellate capacity and the standards of review identified in the
Rules of Procedure fundamentally presume that the Examiner will be reviewing legal and factual
determinations that were actually made by the original permit authority—here, the Department of
Community Development. Under the de novo standard, the Examiner is to decide “whether legal
issues were correctly decided,” implying that the issue in question must actually have been decided
by County staff prior to appeal. RoP 1.1(e) (emphasis added). Under the substantial evidence standard,
the Examiner must view evidence “in the light most favorable to the party who exercised the fact-
finding,” again implying that the factual issue in dispute must actually have been decided by County
staff prior to appeal. RoP 1.1(q) (emphasis added).
Here, the only legal or factual determination made by County staff relating to any of the issues
surrounding use or modification of Twana Way was that those issues are “beyond the scope” of the
County’s review, on the sole basis that the road is “located beyond the limits of shoreline jurisdiction.”
Ex. 9 at 4. That is the only determination County staff actually made. It is the only determination that
has now come up on appeal. Because that conclusion was fundamentally wrong on the law, the
appropriate action now is for the Examiner to issue a remand with instructions that County staff: (a)
evaluate potential impacts to the shoreline environment caused by Mr. Rathvon’s use of Twana Way
as a construction haul route; (b) determine if any road improvements will actually be needed to
provide access to the Rathvon parcel (and what those improvements are likely to entail); and (c)
evaluate any such improvements for impacts to the shoreline environment, which may require
technical stability analyses depending on the magnitude and type of changes. See Ex. A16 & A17
(expert reports of Mr. Cedzich). That is the appropriate resolution of this appeal under the Examiner’s
APPELLANTS’ CLOSING BRIEF - 21
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
Rules of Procedure. It would be improper for the Examiner—who sits only in an appellate capacity—
to reach and decide those issues in the first instance.
C. If the Examiner chooses to go beyond what County staff actually evaluated in
the staff report, then the Examiner should conclude that the proposed shoreline
permit is not supported by substantial evidence.
If the Examiner chooses to go beyond what County staff actually determined as part of their
permit review, and to address potential impacts on the shoreline environment caused by Mr.
Rathvon’s use of the road as a construction haul route and potential road modifications in the first
instance, then the Examiner should conclude that issuance of the shoreline conditional use permit is
not, in fact, supported by substantial evidence.
First, it is clear that County staff never actually evaluated potential impacts to Dabob Bay
from the use of Twana Way by large construction vehicles or widening or other improvements to the
road. No such analysis is apparent from the staff report, where staff wholly ignored these issues based
on the false legal conclusion that simply because the road is more than 200 feet from the water, any
such impacts are beyond the scope of permit review. As discussed above, the County must evaluate
all necessary components of the project, regardless of where they are located.
Second, there has been no analysis of impacts of the type required by the Jefferson County
Code. As discussed above, when “activities on land” and/or “land disturbing activities” are
undertaken in a geologically hazard area, impacts of those activities must be evaluated according to
the criteria set forth at JCC chapter 18.22 for geological letters, geological reports, and geotechnical
reports. See JCC 18.22.200(1); JCC 18.22.540(1–4). In this case, there is no basis for issuance of a
simple geological letter, as it is evident that many areas along Twana Way constitute landslide hazard
areas within the meaning of the code. See Exs. A13 & A14 (identifying many areas with slopes over
40% grade and with a vertical relief of more than 10 feet); JCC 18.22.510(1)(b)(ix) (defining such
areas as landslide hazard areas when mapped as “moderate” by the County). Nor has Mr. Rathvon
submitted any report that meets the County’s requirements for a geological report or a geotechnical
report at JCC 18.22.905 (general reporting requirements) and JCC 18.22.945 (requirements for
geologically hazardous area reports).
APPELLANTS’ CLOSING BRIEF - 22
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
With respect to potential impacts caused by using Twana Way as a construction haul route,
no such report has ever been provided. See Ex. A16 at 1 (expert report of William Cedzich, explaining
that “[w]ithout stability modeling, the potential for induced slope instability from haul trucks,
construction equipment, and new embankment loads remains unquantified and unmitigated”). And
with respect to impacts caused by road widening and other improvements, Mr. Rathvon submitted
Mr. Malick’s report at County Exhibit 9 for road improvements that may be necessary, but that report
does not even attempt meet the County’s baseline requirements of describing and depicting the
locations of potential road improvements, existing site conditions, and the extent of critical areas and
their buffers. See JCC 18.22.905(2)(a–c). Nor does Mr. Malick’s report meet the more detailed
requirements for a geological or geotechnical report at JCC 18.22.945, such as the requirements to
include a description of surface and subsurface conditions (including surface drainage and
groundwater), detailed description of slope and other topographic features, analysis of potential
effects on stormwater quality, quantity, and runoff patterns, subsurface data, exploration logs and
testing data, soil strength parameters, stability analysis, and “an evaluation of the erosion potential on
the site during and after construction.” See JCC 18.22.945(2)–(3)(c). At the hearing, Ms. Frostholm
admitted that Mr. Malick’s road improvement report (County Exhibit 9) is a “geotechnical report”
under the code, due to Mr. Malick’s finding that design recommendations are needed to protect critical
areas. See Day 1 Tr. at 1:59:55. As Mr. Cedzich testified, however, his report falls far short of meeting
code requirements and industry standards for such a report.10 Nor was any evidence or testimony
adduced that Mr. Malick’s report actually meets the requirements for technical reports in geologically
hazardous areas, as required by the plain language of the JCC. When the code sets forth specific
standards for technical reports before land disturbing activities and other “activities on land” may be
10 See Ex. A16 a 2–3 (“In our professional opinion, before any roadway improvements are undertaken, the project
must complete a full geotechnical program, including: (1) comprehensive slope stability modeling per JCC, WSDOT
GDM, and AASHTO requirements; (2) subsurface exploration and laboratory testing; (3) erosion hazard and surface water
impact assessments; and (4) updated site mapping with hazard overlays. Without these elements, the project lacks the
technical foundation necessary to ensure that roadway improvements—particularly those involving heavy construction
loads—can be carried out in compliance with governing codes, engineering best practices, and public safety obligations.”);
see also Day 2 Tr. at 3:45:14 (Mr. Cedzich testifying that without slope stability analysis, surface water assessment, and
erosion assessment, the County is in no position to evaluate impacts to the shoreline environment of Dabob Bay).
APPELLANTS’ CLOSING BRIEF - 23
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
undertaken in a landslide hazard area, it would be incongruous with the code to find substantial
evidence when those code requirements simply are not met.
Third, although Mr. Rathvon’s geological consultants made no effort meet the actual
requirements of the JCC for site-investigative reports as they relate to use of the road as a construction
haul route or for widening or other improvements to Twana Way, Mr. McShane testified orally and
without corroborating evidence that, in his opinion, there is little risk of erosion and sediment reaching
Dabob Bay. But his opinion was based on “walking” and “driving” the road (see Day 2 Tr. at
05:44:11), not on any systematic effort to evaluate the true potential for large vehicles to generate dust
and fine sediment, or for that sediment to wash down to the bay via the three streams that cross Twana
Way. Nor is Mr. McShane qualified to assess erosion potential under the plain language of the JCC,
which requires such assessments to be undertaken by a geotechnical engineer, which he is not. See
JCC 18.22.945(3)(c) (providing that “[t]he geotechnical engineer shall provide a statement
identifying buffer areas at the top or toe of a slope based on geotechnical site constraints and the
impacts of proposed construction methods on the erosion potential of the slope”) (emphasis added).
Only one witness in this appeal is a true geotechnical engineer, and that is Mr. Cedzich, who testified
that an assessment of erosion potential was entirely lacking from Mr. Rathvon’s submittals. Day 2 Tr.
at 2:04:21 (Cedzich testimony).
Fourth, even if Mr. McShane’s testimony could be credited as an adequate substitute for the
specific requirements of the Jefferson County Code for technical analyses in geologically hazardous
areas, his testimony did not address all potential pathways for large quantities of sediment to reach
the sensitive shoreline environment of Dabob Bay. Mr. McShane opined that it would be unlikely for
sediment to wash into the bay specifically from the stream adjacent to the Rathvon property (id. at
05:05:00), but he did not discuss the other streams that cross the road or their potential to carry
sediment downstream. No site reconnaissance or other field work was performed to determine
whether these other streams are capable of carrying sediment to the bay. Nor did Mr. McShane
address the quantity of potential fine sediment that could wash downstream as evidenced by the inches
of dust that now cover the road due to its use as a construction haul route for the Von Bargen and
APPELLANTS’ CLOSING BRIEF - 24
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
Hawley projects, as seen in Exhibit A18—a condition that is likely only to be exacerbated by the
much larger construction project proposed by Mr. Rathvon.
Fifth, Mr. McShane testified specifically that it would be important to maintain the water bars
across Twana Way in order to prevent harm to the shoreline area. Day 2 Tr. at 5:50:35. But those
water bars are now destroyed, as Mr. DiMaggio testified and as shown in Exhibit A18. See Day 4 Tr.
at 05:28:01–05:29:11.
Finally, Mr. Rathvon and his agents have yet to provide a definitive answer to the question of
whether road widening or other improvements will actually be necessary, or what those improvements
might be. They have attempted to distance themselves from clear statements to the County that such
improvements will, in fact, be required. But at the same time, they have attempted to leave the door
open, admitting that road improvements may, in fact, be deemed necessary, depending on “weather
conditions, specific construction methods, and the size and types of construction vehicles that we
would ultimately employ.” Richert Decl., ¶ 4. The Examiner cannot evaluate the “full, unified, and
integrated physical project”—let alone determine whether the approval criteria for such a project are
supported by substantial evidence—without knowing what that project will actually entail. Road
improvements either will, or will not, be necessary. Mr. Rathvon has an obligation under the SMA to
determine that issue now, not later after the shoreline permit is issued.
For the reasons above, issuance of Mr. Rathvon’s shoreline conditional use permit is not
supported by substantial evidence and should be denied.
D. Regardless of the resolution of this appeal, the Examiner should adopt Ms.
Frostholm’s proposed condition to return Twana Way to its original condition
following construction.
Last, whether this appeal results in a remand or a denial (or even an approval), the Examiner
adopt Ms. Frostholm’s proposed condition that Mr. Rathvon be required to return Twana Way to its
original, unaltered, undamaged condition after construction of his home is complete. That said, it is
unclear how compliance with this condition will be ensured, since the only evidence of the original,
undamaged road condition is in the form of photographs taken by Appellants and submitted as Exhibit
A4 in this appeal. Those photographs obviously do not provide evidence of the condition of the road
APPELLANTS’ CLOSING BRIEF - 25
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
below the surface. Nor do they provide a 100% comprehensive picture of the complete surficial
condition of the road, having been gathered, compiled, and submitted for an entirely different purpose.
Thus, we would request that the proposed condition be clarified to require Mr. Rathvon to document
the complete, unaltered, undamaged condition of the road (both surface and sub-surface) prior to the
start of construction so that compliance can be accurately and meaningfully assessed when he is done.
Absent such a requirement, there is no guarantee that the road will actually be returned to its original
condition, and that any and all degradation will be cured and rectified.
CONCLUSION
Under the SMA, Jefferson County has an obligation to review not only the components of a
proposal that are within 200 feet of the shoreline, or that are within a particular parcel of property, but
to review the “full, unified, integrated physical project” and to determine if any part of it is likely to
have an adverse effect on the shoreline environment. The County did not do that in this case. Nor
should the Examiner engage in that inquiry for the first time on appeal, but should remand this matter
with instructions that County staff: (a) evaluate potential impacts caused by use of Twana Way as a
construction haul route; (b) determine if road improvements will actually be needed (and they are
likely to be); and (c) evaluate any such improvements for impacts on the shoreline environment.
If the Examiner chooses instead to address these issues for the first time on appeal, then the
Examiner should find that issuance of Mr. Rathvon’s shoreline permit is not supported by substantial
evidence. The JCC lays out specific requirements for evaluating the impacts of activities in landslide
hazard areas. This project should not go forward without meeting those requirements as they apply to
all aspects of the proposal and all potential damage to the sensitive environment of Dabob Bay.
The one thing that should not be allowed is to ignore aspects of Mr. Rathvon’s project—such
as road widening and other improvements—simply because he has not yet determined if they will be
necessary. If such improvements might be made necessary due to weather conditions, construction
methods, or vehicle types (see Richert Decl., ¶ 4), then that needs to be determined and evaluated now
so that the entirety of the project can be reviewed in a unified, cohesive fashion as the SMA requires.
APPELLANTS’ CLOSING BRIEF - 26
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
(206) 453-2884
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
26
Dated this 20th day of October, 2025.
TELEGIN LAW PLLC
By:
Bryan Telegin, WSBA No. 46686
Counsel for Appellants John DiMaggio and
Michelle Oliver