HomeMy WebLinkAbout2025 10 20 Jefferson Co Closing Brief
JEFFERSON COUNTY’S- 1
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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BEFORE THE HEARING EXAMINER
FOR JEFFERSON COUNTY
In re Appeal of Rathvon Shoreline
Conditional Use Permit, DCD File No.
SDP2023-00020
JEFFERSON COUNTY’S
CLOSING BRIEF
INTRODUCTION
Appellants challenge an administrative approval of a shoreline conditional use permit
(SCUP), Jefferson County Department of Community Development (DCD) File No. SDP2023-
00020, issued April 10, 2025 (Permit). Jefferson County issued the Type II administrative
decision to Applicant, who proposes to develop a single-family residence within shoreline
jurisdiction on property located at 660 Twana Way, Quilcene, Washington 98376 (Property).
Appellants and Applicant share use of Twana Way to access their respective properties. Jefferson
County (County) issued a thorough Staff Report by Donna Frostholm, Project Planner, on April
10, 2025, recommending approval of the Permit with conditions.
This hearing occurred over four days, including September 8th and 9th and September 29th
and 30th. Several witnesses were called to testify who had direct personal knowledge of the matter.
The Applicant and Appellants are likely to provide lengthy closing briefs. Since many of the
arguments will be covered through those other briefs, the County has tried to summarize some
key points relevant to the County’s review. The County joins Applicant in requesting the SCUP
be issued.
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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After all the testimony and exhibits, it is still unclear what evidence, if any, shows any
negative environmental impact that would not be sufficiently mitigated through the conditions set
forth in the County’s Staff Report. Accordingly, Appellant’s request for relief should be denied.
It is also remains unclear as to why use of an existing road that is entirely outside of shoreline
jurisdiction, and is not a unified and integrated part of the project, should be reviewed under the
Shoreline Management Act and Jefferson County Shoreline Master Program (SMP), chapter
18.25 Jefferson County Code (JCC), further strengthening the argument that the Appellant’s
request for relief should be denied.
AUTHORITY AND ARGUMENT
A. Burden of Proof and Standard of Review.
Appellants bear the burden of proof. Jefferson County Hearing Examiner Rules of
Procedure (Rules of Procedure) 5.14(j). Issues of law are subject to a de novo standard of review
and issues of fact are subject to a substantial evidence standard of review. R ules of Procedure
5.14(j)(iii). The record and testimony are supported by substantial evidence.
Appellants also must demonstrate that they have suffered some injury or harm. Alleging
a conjectural or hypothetical injury is not sufficient. Snohomish County Prop. Rights All. v.
Snohomish County, 76 Wn. App. 44, 53, 882 P.2d 807 (1994). After four full days of testimony,
it is unclear what harm or injury the Appellants have suffered. They maintain continued use and
enjoyment of their shared road, accessible for dog-walking and beach access alike. No evidence
was provided of actual harm or injury to Appellants or the environment.
In contrast, case law supports giving deference to a County’s interpretation of its own
code and should be accorded “great weight where the statute is within the agency’s special
expertise.” Cornelius v. Wash. Dep’t of Ecology, 182 Wn.2d 574, 585, 344 P.3d 199
(2015) (review under the Administrative Procedure Act) (citations omitted). When a local
government entity administers a state law through its own enactments, it is usually afforded
deference by the court as the agency with expertise. Solid Waste Alternative Proponents v.
Okanogan County, 66 Wn.App. 439, 442, 832 P.2d 503 (1992).
CLOSING BRIEF- 3
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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Two veteran Department of Community Development (DCD) employees, Planner Donna
Frostholm, and Code Administrator Greg Ballard, whom together have approximately 6 decades
of planning experience, testified at length as to their understanding of the project, applicability of
local code and relation to state regulations, and their experience and expertise working in
Jefferson County and, specifically, within shoreline jurisdiction. Based on substantial evidence
in the record, the County’s SCUP decision should stand.
B. SCUP complies with chapter 18.25 Jefferson County Code (JCC) Shoreline
Master Program (SMP).
This Permit was reviewed in compliance with the SMP as codified in chapter 18.25 JCC.
DCD has submitted Exhibits 01 through 17, including the Staff Report issued April 10, 2025, as
well as “County Legal” documents CL 17 through 26.
The Staff Report outlines Staff Findings as it relates to the Jefferson County
Comprehensive Plan, Critical Areas (chapter 18.22 JCC), Stormwater (JCC 18.30.060 and
18.30.070), and the Shoreline Master Program (chapter 18.25 JCC). The Staff Report
recommends approval of the permit, subject to 11 conditions, with subsequent recommendations
by Planner Frostholm for two additional permit conditions brought up during the hearing, which
include:
• A condition that Applicant repair Twana Way Road to any pre-construction
condition; and,
• A condition that Applicant comply with the best management practices as outlined
in the Cumulative Impacts Assessment Report issued January 24, 2025 (DCD
Exhibit 8, Attachment F, page 58 of 66).
The Applicant has agreed to both of these conditions.
The proposed single-family residence is an expressly allowed use in the SMP’s Natural
shoreline environment, with a conditional use permit. JCC 18.25.500(3)(c). The proposed
development is located within 200 feet of the ordinary high water mark (OHWM), but outside of
the 150 shoreline buffer, and with a 10 foot building setback. Staff Report at 3. The Staff Report
provides extensive comments documenting why and how DCD determined the project will “avoid
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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impacts to the shoreline environment to the extent possible” and “no adverse impacts to the
shoreline are expected,” provided the Applicant follow best management practices for erosion
control. Id. at 6-7. The SCUP was conditioned to ensure no sediment or pollutants would reach
Dabob Bay. Id. at 8.
Testimony at the hearing by Planner Frostholm included a detailed explanation of the staff
comments and recommended conditions included in the Staff Report, demonstrating that DCD
met all of the applicable requirements for the application’s review. Substantial evidence supports
a finding that the SCUP complies with chapter 18.25 Jefferson County Code (JCC) Shoreline
Master Program (SMP).
C. Hearing Examiner has authority to review activity on property beyond the
200-foot Shoreline Management Act and Shoreline Master Program
jurisdiction limitation when such activities are part of a “full, unified and
integrated project”. However, Twana Way is not a unified and integrated
part of the program.
No party disputes that the Hearing Examiner has authority to review activity on property
beyond the 200-foot Shoreline Management Act and Shoreline Master Program jurisdiction
limitation when such activities are part of a “full, unified and integrated project” that includes
elements both within and outside the shoreline jurisdiction. E.g., Citizens to Stop the SR 169
Asphalt Plant v. King County, SHB No. 22-007 (Apr. 12, 2023). Hearing Examiner’s Order on
Appellants’ Motion for Summary Judgment (Order on Summary Judgment) at 4. The purpose of
such extended review is to guard against piecemeal environmental review so that local
government may determine whether off-site components of such “full, unified and integrated
project” will adversely impact the shoreline. Id. Such review does not “enlarge” the SMA’s
jurisdictional reach beyond 200 feet, but instead ensures that all aspects of a project – where
portions are inside and outside the shoreline jurisdiction - are reviewed together in a cohesive
fashion. Id.
Substantial evidence in the record clarifies that the project application does not include
development of Twana Way, nor does the record support a Twana Way improvements as “unified
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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and integrated” part of the project. As Applicant correctly points out in their Pre-Hearing Brief,
case law defines “full, unified and integrated physical project” as an element that is “integrated
and non-severable part of the total development.” Bhatia v. Dep’ t of Ecology, SHB No. 95- 34,
1996 WL 538822 (Final Findings of Fact Conclusions of Law and Order, Jan.9, 1996). For
residential development, a project element is integrated and non-severable if the element is a
necessary part of the plan to construct a residence or is necessary for the home to function. See
Manza v. Shorelines Hearings Board, 128 Wn. App. 1023, 2005 WL 1540942 at 8 (June 28,
2005); Bhatia v. Dep’ t of Ecology, SHB No. 95- 34, 1996 WL 538822 (Final Findings of Fact
Conclusions of Law and Order, Jan. 9, 1996).
Here, testimony was provided by the Applicant himself, as well as Larry Dean Richert,
General Contractor, that different types of construction vehicles can be used to minimize impact
to Twana Way, and that road modifications or improvements are not necessary. As such, the case
at hand is similar to the situation in the Manza v. Shorelines Hearings Board, where a dock and
bulkhead were found not integral or interdependent parts of the Manzas’ larger proposal to
construct a residence and sewage tank. Id. at 27. In Manza, the Court found that completion of
the residential property is not dependent upon the development of a dock and bulkhead. Id. Here,
the completion of the residential property is not dependent upon the development of Twana Way
Road. The Applicant has been accessing the property and using the pre-existing road without
issue since the property came into the family’s ownership, dating back decades. Further still,
Applicant introduced evidence during the hearing that several neighbors have undergone some
level of construction with minimal to no issues. To the extent the neighbor’s construction has had
any “impact” on the road, it has been nominal and arguably can be mitigated by normal road
maintenance such as simply maintaining the infamous “water bars.”
1. No new development proposed on Twana Way.
As mentioned above, Applicant has a long history with the property. Applicant’s deed and
easement history document that Twana Way is a pre-existing access road for the subject Property.
As far back as 1969, an easement recorded under document number 203763 refers to “following
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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the general course of an existing road” and states the road easement is permanent and perpetual.
CL Ex. 18. There is no dispute regarding Applicant’s right to use the road. Code Administrator
Greg Ballard testified to the significance of a pre-existing road vs. new development. Jefferson
County does not consider a pre-existing road that is not undergoing new development or
improvements to be a “unified part” of the project. Local government legal interpretations of their
own SMPs are given substantial weight where that interpretation falls within the local
government’ s specialized expertise. Ackerson v. King County, SHB No. 95- 026 at 8-9, 1996 WL
226594 (Findings of Fact, Conclusions of Law and Order) (March 19, 1996). This interpretation
is consistent with applicable case law, which consistently considers “new” development,
including new or improved roads, as part of unified projects. See Citizens to Save Pilchuck Creek
vs. Skagit County, SHB No. 98-004 (Final Findings of Fact Conclusions of Law and Order, March
9, 1999) discussing development of a new bridge and adjacent road and Weyerhaeuser Co. King
County, 91 Wn.2d 721, 736 (1979) discussing construction of a new road and adjacent logging
activities. There is no compelling evidence that the Applicant’s project will inevitably require
improvements. On the other hand, there is substantial evidence showing the Applicant is
committed to completing construction of the residential home without necessitating road
improvements.
2. County process for road maintenance is exempt under critical areas ordinance.
Code Administrator Greg Ballard testified that customers are encouraged to meet with
DCD to discuss Critical Area Requirements. (Testimony beginning on September 8, 2025, at
03:44:08.000). Normal road maintenance, if necessary, may be exempt under the Jefferson
County’s Critical Areas Ordinance.
Maintenance – Transportation. Maintenance or reconstruction of existing public or private
roads, paths, bicycle ways, trails, and bridges; provided, that the maintenance or
reconstruction complies with the additional requirements in subsection (5) of this section.
JCC 18.22.230(4)(c).
Code Administrator Ballard testified at length about his personal involvement in this matter. In
large part, it involved consulting with Applicant’s team regarding a possible critical area
CLOSING BRIEF- 7
Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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exemption, which was separate from the SCUP application. Id. Code Administrator Ballard
testified that in an abundance of caution he had asked for additional information regarding slope
stability for this limited purpose (04:03:10.000), hence receiving the Stratum Letter dated
February 25, 2025. DCD Ex. 9; see also live testimony at 04:06:48.000.
If road maintenance or reconstruction is proposed per Section 18.22.530(4)(c) JCC, after
the applicant submits the requirements of Section 18.22.230(3) JCC, and DCD determines that
the activity meets the exemption criteria the DCD, then the protection standards of 18.22.530
would not be applicable. The County provided repeated testimony that this activity would likely
be subject to stormwater requirements per section 18.30.060(4) JCC.
3. Applicant agrees to add subsequent permit condition repairing road to pre-
construction condition.
During the hearing, Planner Donna Frostholm testified that the County recommends an
additional condition be added that Applicant restore the road to its currently existing conditions
post-construction. (Testimony on Tuesday, September 30, 2025, starting at 00:11:54.000). To
which Applicant indicated they are agreeable. (00:32:06.000).
While the County maintains it reviewed a complete application, and the Staff Report
should be sufficient as is, the County also agrees with the Applicant, as was pointed out in their
Pre-Hearing Brief at 19, should the Hearing Examiner find the application had not been
completely reviewed, this is not fatal. Such a procedural deficiency can also be cured based on
information presented at the hearing. See North Park Neighbors v. City of Long Beach, SHB No.
05- 030 at V, 2006 WL 2848721 (Findings of Fact, Conclusions of Law, and Order, Sept. 28,
2006) (a shoreline application consists of the entire record developed on review) (quoting Eklund
v. San Juan County, et.al., SHB No. 99- 029 (March 2, 2000)); Hearing Examiner Procedures at
Section 6.1(c) (granting the County Hearing Examiner the authority to affirm, deny, or modify
the County’ s decision). If the record developed before the Hearing Examiner “demonstrates
compliance with the SMA and SMP, . . . an incomplete application at the local level can be
deemed harmless.” See Coalition For A Sustainable 520 v. City of Seattle, SHB No. 12- 002c at
30, 2012 WL 2521157 (Order on Summ. J., June 20, 2012); see also North Park Neighbors v.
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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City of Long Beach, SHB No 05- 030 at 13 (Findings of Fact, Conclusions of Law, and Order,
Sept. 28, 2006); Sahlin v. City of University Place, SHB No. 03- 024 at 5-6 (Findings of Fact,
Conclusions of Law, and Order, July 16, 2004). The Hearing Examiner’ s review can also cure
any inaccuracies that may exist in an application. See Sahlin, SHB 03- 024 at 5-6.
Again, there is no compelling evidence to suggest the application was not complete.
However, to the extent the Stratum Group Letter dated February 25, 2025 potentially created
confusion regarding any possible “road widening”, this assertion has been substantially refuted
by the author’s own testimony. Geoff Malick candidly testified he had misunderstood what was
actually being proposed – he assumed road modifications. Regardless, he personally observed the
road and has no concerns for its overall stability.
Specifically, there was much time spent contesting whether Stratum Reports for the
proposed residence would be considered a Geotechnical Report. Arguably, Crescent
Environmental would be considered a geotechnical letter based on the lack of documentation.
Section 18.22.540(5) JCC requires DCD to determine what report the County accepts and which
one the County rejects. Planner Frostholm testified to her expertise and experience reviewing
reports, weighing the information provided, and assessing the information provided therein. The
County has the responsibility to make a decision about which reports to ultimately rely upon.
Here, the several reports provided by Stratum – Geological Hazard Assessment for Proposed
Septic System dated February 15, 2022 (Exhibit 14), Comments in response to public comments
from Telegin Law and Crescent Environmental dated October 11, 2024 (Exhibit 7), Geological
Hazard Assessment Update dated November 14, 2024 (Exhibit 8, Attachment E), and Geological
Hazard Assessment for Twana Way Improvements dated February 25, 2025 (Exhibit 9), were
considered sufficient to support the findings in the Staff Report. Substantial evidence supports
the County completed its due diligence in reviewing the professional reports provided to satisfy
the SCUP review. Planner Frostholm testified that having reviewed the updated report prepared
by the Stratum Group (DCD, Exhibit 8, Attachment E), DCD used JCC 18.22.540(5) to determine
the updated report should be accepted. This report was prepared for the proposed house (not the
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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road). Additionally, Geologist Dan McShane and partner Geoff Malick, both personally visited
the property, assessed slope stability, and walked Twana Way. In contrast, the Appellant’s expert
had not visited the site location, has less experience working in Jefferson County, and does not
have the local expertise or familiarity with the local geological landscape. There is no evidence
to suggest the County acted erroneously or made an erroneous error in relying on the information
provided by Stratum. Substantial evidence supports the County’s reliance on the information
provided by Stratum.
4. Appellants have not demonstrated adverse impact to the shoreline.
If more substantial improvements were required in the future, Condition 7 clearly states,
“This permit does not authorize any modifications to the existing road. It is the responsibility of
the permittee to obtain any required permits.” Staff Report at 8. DCD does its best to review and
consider all factors that might impact a project, but ultimately DCD has a responsibility to review
the application before it based on the information provided by the Applicant.
In response to public comment and concerns, DCD exercised due diligence by requesting
additional information, which was discussed at length during testimony (see DCD Exhibit 8), as
well as conducting site visits, and taking care to do a thorough review. This is a case where local
government acted reasonably in pursuing additional information, and made reasonable decisions
intended to balance development of a single-family residence with important environmental
protections based on the information available.
Appellants failed to provide evidence of environmental impact or potential impact more
than just conjecture and speculation. Understandably, Appellants are concerned about geological
hazardous areas and use of construction vehicles on Twana Way. These concerns are valid.
However, they have been sufficiently addressed. Here, substantial evidence in the record reflects
appropriate mitigation measures were considered, reviewed, and recommended. The County’s
Staff Report ensures additional protections through Stormwater and Critical Areas, and protects
against other potential environmental impacts related to road maintenance or possible future
improvements (again, none are actually proposed as part of the project completion). See JCC
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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18.22.200 (Applicability), as well as JCC 18.22.530(6)(a), which is part of the protection
standards for geologically hazardous areas. Both of these code sections support DCD’s
understanding that local code provisions provide the necessary protection of shorelines for
development outside of shoreline jurisdiction through critical area provisions and stormwater
management requirements. Substantial evidence supports the protections and conditions set forth
in the Staff Report.
CONCLUSION
After a four-day hearing on this SCUP, a few things are clear:
First, most of the testimony provided by the Appellants was, respectfully, not relevant.
While the County can appreciate the position of both the Appellants and the Applicant, the County
contends that evidence introduced by Appellants related to any community conversations, power
point presentations, and discussions between neighbors prior to the SCUP application should be
given little, if any, weight since none of this information was part of the formal SCUP application
or review. Applicant’s historical interest in discussing potential road improvements and shared
road maintenance on a private primitive road is not uncommon. The record reflects Appellants’
love fostering dogs and cold plunging – by popular standards, both worthy endeavors, and
certainly not uncommon here in Jefferson County, Washington. Again, though, there is no
evidence of how Appellants have been actually harmed or injured. They can still walk their dogs
down the road, they can apparently still access the water, and the Applicant has even agreed to an
additional condition requiring repair of the road to its pre-construction condition.
Substantial evidence shows extensive measures by Applicant and the County to mitigate
any potential impact to the environment and respond to Applicant’s questions and concerns. The
conditions set forth in the Staff Report are reasonable and directly address any potential
environmental impact and should ameliorate the Applicant’s concerns. When important
environmental protections and development codes get misguidedly employed, no matter how
earnest their deployment, it does not make good law or policy. Why dog walking and honoring a
deceased parent’s legacy cannot co-exist, one can only wonder about the missed opportunity to
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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perhaps reconcile in a more meaningful venue. Regardless, the County is confident the Hearing
Examiner will provide appropriate guidance within the scope of this limited jurisdiction.
Third, there is no compelling evidence presented during the four-day hearing showing the
project application actually proposes, or necessitates, road improvements. In contrast, substantial
evidence was provided by experts like lead geologist Dan McShane, who has a wealth of personal
knowledge and experience working in Jefferson County, testified that he does not have any
concerns about the road stability. Additionally, the Applicant himself gave substantial testimony
to clarify the situation – There is no proposed for road improvements. The County gave substantial
testimony to clarify why additional information was requested for both the shoreline permit
regarding the residence, and, separately, for a Critical Areas Ordinance consultation on road
maintenance. These are reasonable actions by local government acting in good faith and seeking
to provide important services to residents in compliance with applicable local laws.
Dated this 20th day of October, 2025.
JAMES KENNEDY
Jefferson County Prosecuting Attorney
Ariel Speser, WSBA #44125
Civil Deputy Prosecuting Attorney
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Jefferson County Prosecuting Attorney
1820 Jefferson Street/P.O. Box 1220
Port Townsend, WA 98368
360-385-9180
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DECLARATION OF SERVICE
The undersigned declares under penalty of perjury, under the laws of the State of
Washington that the following is true and correct:
I hereby certify that on the 20th day of October, 2025, I caused to be served the
foregoing JEFFERSON COUNTY’S CLOSING BRIEF on the following parties via E-Mail.
The Jefferson County Office of the
Hearing Examiner:
Attorney for Appellants John
DiMaggio and Michelle Oliver:
Carolyn Gallaway
Hearing Examiner Clerk
Carolyn@co.jefferson.wa.us
Bryan Telegin
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
jamie@teleginlaw.com
Adiel F. McKnight
Deputy Clerk of the Board, CMC
afmcknight@co.jefferson.wa.us
Attorneys for Applicant:
Patrick J. Mullaney
Schwabe, Williamson & Wyatt, P.C.
1420 5th Avenue, Suite 3400
Seattle, WA 98101
pmullaney@schwabe.com
Julie Wilson-McNerney
Schwabe, Williamson & Wyatt, P.C.
1420 5th Avenue, Suite 3400
Seattle, WA 98101
Jwilson-mcnerney@schwabe.com
Laura Mikelson
Paralegal – Civil Department
Prosecuting Attorney’s Office
Jefferson County