HomeMy WebLinkAbout2025 10 20 Rathvon - Post-Hearing Brief
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BEFORE THE LAND USE HEARING EXAMINER
IN AND FOR JEFFERSON COUNTY
In re Appeal of Rathvon Shoreline
Conditional Use Permit, DCD File No.
SDP2023-00020
RESPONDENTS’ POST-HEARING
BRIEF
I. INTRODUCTION
The Hearing Examiner defined the issues in this appeal in her Order on Appellants’
Motion for Summary Judgment:
Whether Twana Way improvements are outside the scope of the proposal
to construct a single-family residence, and
Whether Jefferson County properly evaluated all components of the
“project,” or whether the Permit should be reversed and remanded to DCD
for evaluation of potential impacts from widening and/or re-grading of
Twana Way in the first instance.
The record created by the County and the County’s and Rathvons’ hearing testimony
provide overwhelming substantial evidence to support the County’s Shoreline Conditional
Use (“SCUP”) Decision. The Rathvon single-family residence SCUP has no significant
impacts to the shoreline environment and does not include any plan to improve Twana Way.
The record demonstrates that County staff considered Appellants’ comments (Ex. A1
at Ex. D at 1); made a site visit to view Twana Way (Ex. A1 at Ex I at 2) (“DCD visited the
site on January 17, 2025 to examine the road”); requested additional geotechnical information
(Ex. A1 at Ex. D at 1), which was provided; and concluded that Twana Way could be used in
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its current condition for construction of the Rathvons’ home (Ex. A1 at Ex. I at 1) (“DCD
Planning has no issue with the issuance of the building permit utilizing the existing access
road addressed below”). The County conditioned the SCUP to specifically exclude Twana
Way and reiterated that should any potential roadwork be proposed in the future, it would be
subject to review against applicable County Code requirements, including Title 18.22 and
Title 18.25. Ex. DCD-11 at 1 (Condition 7).
Appellants fell far short of their burden. Appellants manufactured an appeal of a non-
existent road improvement project. They dropped any consideration of the actual potential
shoreline impacts from the Rathvons’ residential construction—such as the septic system,
stormwater management, aesthetics, or cumulative impacts—because there were none.
Instead, the DiMaggio/Oliver appeal erroneously assumed that the Rathvons’ home
construction included substantial widening and resurfacing of Twana Way, when it did not.
Appellants’ geotechnical expert, Mr. Cedzich, opined on this non-existent road
improvement project. Ex. A-16 (purpose of memorandum is to present our professional
review and findings “for the proposed roadway improvements along Twana Way.”).
Moreover, he admitted he is not a licensed geologist in Washington state (Hearing Testimony
Day 2 at 2:08) 1; he has never performed a geologic hazard assessment in Jefferson County
(Day 2 at 2:10); he made no independent evaluation of Twana Way’s geotechnical stability
(Day 2 at 2:27-2:30); and he did not even visit the site (Day 2 at 2:27-2:30). Instead, consistent
with the direction he received from the Appellants, he opined on what studies he believed
should be conducted for construction of the non-existent road improvement project and
argued that road standards that apply to the construction of interstate highways should be
reviewed if this hypothetical road improvement plan was ever implemented. Day 4 at 5:14-
1 References to testimony from the hearing in this brief include the day of the hearing when the testimony was
given and the time stamp from the video at which the testimony can be found. Hereinafter, references to the
recordings of the hearings will be abbreviated to “Day” followed by the corresponding number. References in
this brief to exhibits are to the numbering on each party’s filed exhibit lists, except for those exhibits introduced
at the hearing, which are referred to by the number assigned during the hearing.
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5:16, 5:20-5:21.
Ironically, Appellants are the only party that have made substantial alterations to
Twana Way, and they admitted that they did so without contacting the County, without
obtaining any permits or a critical area exemption, and without having done any of their
expert’s proposed geotechnical analyses. Day 1 at 6:04-6:10 (DiMaggio), Day 3 at 2:24, 2:58-
3:00 (DiMaggio).
In short, Appellants appeal is not grounded in reality, and they have not met their
burden to prove that the County’s SCUP Decision was issued in error. As detailed below, the
County’s evaluation of the SCUP; its exclusion of Twana Way from the Rathvons’ project
description; and the County’s analysis of potential construction vehicle impacts to Twana
Way meet the substantial evidence standard. Therefore, the County’s decision should be
upheld, and the DiMaggio/Oliver appeal should be denied.
II. ARGUMENT
A. Standard of Review and Appellants’ Burden of Proof.
In this open-record appellate hearing, the record is not limited to the evidence before
the County when it made the SCUP Decision, and new evidence may be submitted to address
the issues raised and to provide additional legal and factual support for the County’s SCUP
Decision. RCW 36.70B.020(3) (hearing “creates the local government’s record through
testimony and submission of evidence and information”). Additionally, Appellants “shall
have the burden of proof as to the material factual issues . . . [and] the burden of proof is by
a preponderance of the evidence.” Hearing Examiner Rules of Procedure (“RoP”) 5.14(j)(iii).
For appeals of Type II land use decisions, “issues of law are subject to a de novo
standard of review. Issues of fact are subject to a substantial evidence standard of review.”
RoP 5.14(j)(iii). “Substantial evidence” means that the Examiner’s review is deferential to
the County and requires that the Examiner view the evidence, and reasonable inferences
therefrom, in the light most favorable to the County, as the fact-finding entity. RoP 1.1(q).
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Under the “substantial evidence” standard the Examiner must accord substantial
weight to the County’s Decision, and the Examiner does not weigh the evidence and substitute
her judgment for that of the administrative official. RoP 1.1(q); Phoenix Dev., Inc. v. City of
Woodinville, 171 Wn.2d 820, 832, 256 P.3d 1150 (2011). Rather, the substantial evidence
standard is met if there is a “sufficient quantum of evidence in the record to persuade a
reasonable person that the declared premise is true.” Wenatchee Sportsmen Ass'n v. Chelan
Cnty., 141 Wn.2d 169, 176, 4 P.3d 123 (2000).
Speculation is not substantial evidence, and conflicting testimony is not sufficient to
warrant reversal. Henderson v. Kittitas County, 124 Wn. App. 747, 100 P.3d 842 (2004);
Miller v. City of Sammamish, 9 Wn. App. 2d 861, 881, 447 P.3d 593 (2019) (substantial
evidence supported examiner’s conclusion as to the presence of regulated wetlands despite
competing expert testimony); see also City of Fed. Way v. Town & Country Real Est., LLC,
161 Wn. App. 17, 42-43, 252 P.3d 382 (2011) (hearing examiner conclusion of “absence of
data” supported by substantial evidence). Nor is a “technical error” sufficient to reverse or
remand a decision. Jones v. Town of Hunts Point, 166 Wn. App. 452, 462-63, 272 P.3d 853
(2011).
To prevail on an error of law, the Appellants “must establish that the [County]’s
decision is an erroneous interpretation of law[.]” Rule 5.14(j)(iii). Phoenix Dev., Inc., 172
Wn.2d at 837-838. In conducting de novo legal review, the Examiner must give “considerable
deference” to the County’s interpretations of its regulations. Families of Manito v. City of
Spokane, 172 Wn. App. 727, 740-41, 291 P.3d 930 (2013); City of Redmond v. Cent. Puget
Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998).
Appellants did not meet their burden to prove by a preponderance of the evidence that
the County’s SCUP Decision was not supported by substantial evidence or was an incorrect
application of the law. Therefore, the County’s SCUP Decision was appropriately made and
should be upheld on appeal.
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B. Alleged Road Improvement Impacts to Twana Way Do Not Meet the Standards
for What Constitutes an Integrated Project Under the Shoreline Management
Act.
As discussed in more detail in the Rathvons’ pre-hearing brief, Shoreline Management
Act (Ch. 90.58 RCW (“SMA”)) jurisdiction does not extend to elements outside of the SMA’s
200-foot jurisdictional limit unless there is some integral linkage between the outside
elements and other project elements that are within the SMA’s jurisdictional boundary. Thus,
when a proposal includes physical elements both within and outside of the 200-foot shoreline
jurisdiction, the local government should review the “full, unified, and integrated physical
project” “to determine to what extent those portions of the project outside the [shoreline] may
adversely impact the shoreline of the state.” Citizens to Stop the SR 169 Asphalt Plant v. King
County, SHB No. 22-007 at 88, 2023 WL 2977069 (Findings of Fact and Conclusions of Law
and Order, Apr. 12, 2023). A physical element outside of the shoreline jurisdiction is part of
the “full, unified and integrated physical project” when the element is an “integrated and non-
severable part[] of the total development.” Bahia v. Dep’t of Ecology, SHB No. 95-34, 1996
WL 538822 (Final Findings of Fact Conclusions of Law and Order, Jan. 9, 1996).
For residential development, a project element is integrated and non-severable if the
element is a necessary part of the plan to construct a residence or is necessary for the home
to function. See Manza v. Shorelines Hearings Board, 128 Wn. App. 1023, 2005 WL 1540942
at *8 (June 28, 2005); Bahia v. Dep’t of Ecology, SHB No. 95-34, 1996 WL 538822 (Final
Findings of Fact Conclusions of Law and Order, Jan. 9, 1996).
Here, the County did conduct appropriate review by visiting the site to examine Twana
Way (Ex. A1 at Ex. I, asking the Rathvons if they intended to improve Twana Way as part of
their project (Ex. DCD-08 at 3); and requesting additional information on the road’s
geotechnical stability (Ex. DCD-08 at 4), which was provided to the County and
supplemented at the hearing. (Exs. DCD-07 at 13; DCD-08 at 19; DCD-09 at 2; RR-31; RR-
42; RR-44; and RR-45; see generally, McShane: Day 2 at 4:14-6:17, Day 3 at 00:09-1:34;
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Malick: Day 3 at 3:55-4:52).
Ultimately, the County concluded that Twana Way could be used for the Rathvons’
construction access in its current condition (Ex. A1(I) at 1). Thus, the County met its
obligations under the SMA and Shoreline Master Program (“SMP”) and, following its
evaluation, correctly concluded that the use of an existing roadway, which lies entirely outside
of the SMA boundary, was not an integral part of the Rathvons’ home construction proposal.
Therefore, the SMA did not obligate the County to conduct integrated review, particularly
when the County expressly conditioned the SCUP to exclude the road and explained that any
potential future road work would be governed by the County’s permitting requirements. See
Ex. A1(I) at 2 (email from G. Ballard discussing JCC 18.22.240(3)); DCD-11, Condition 7.
C. The County Properly Excluded Twana Way from the Rathvons’ Single-Family–
Residence Project Description.
Appellants allege that the County erred in issuing the SCUP because the County (a)
impermissibly excluded Twana Way from the SCUP Decision’s project description and (b)
failed to analyze potential impacts to Twana Way. Appellants’ entire appeal is based on a
misstatement of the Rathvons’ single-family–residence project in an attempt to create an issue
where none exists. Appellants’ meritless allegations are not supported by substantial
evidence, nor do they establish that the County incorrectly applied the law.
1. Appellants’ Presented No Factual Basis for Including Twana Way in the
Rathvons’ Project Description.
In October 2023, Mr. Rathvon created a document to facilitate a neighborhood
discussion about a possible formal road maintenance program for Twana Way. Exs. RR-16
(“document relating to possible improvements for Twana Way ”; “document describes 2
examples to illustrate the possible range of possible road repairs and improvements”) and RR-
17 (invitation to “a neighborhood gathering to discuss possible repair and maintenance of our
road”).
The hearing testimony was unanimous that the October 2023 Twana Way
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neighborhood road maintenance proposal never went forward. Ms. Oliver admitted that the
road proposal went “nowhere”. Day 3 at 5:15, 5:25. Mr. VonBargen also testified that the
neighborhood Twana Way maintenance proposal did not go forward. Day 4 at 1:28; see also
Barbara (Paulson) Smith comment letter (“discussions led nowhere”).2
In their appeal statement and in their testimony during the hearing, Appellants
erroneously claimed that the Rathvons’ home construction project includes extensive road
improvements to Twana Way based on the “Higher Cost Option” that Mr. Rathvon presented
at the October 2023 neighborhood meeting. Hearing Day 1 at 4:50-4:53, Day 3 at 1:45-1:46,
2:00 (DiMaggio); Day 3 at 4:58-5:02, 5:20-5:21 (Oliver); Ex. RR-16 at 5, 9-11; Ex. RR-17.
Appellants claimed that they objected to the Higher Cost Option because they were
concerned that if the Higher Cost Option was ever implemented, the new rock and gravel on
Twana Way would make the road unwalkable. Day 1 at 4:57 (“we’re concerned that [Mr.
Rathvon] will start a process [that]’s going to jeopardize our personal use of the road and our
personal ability to get to the shoreline), Day 3 at 2:49-2:50 (DiMaggio); Day 3 at 5:08-5:09;
5:27-5:30 (“[I]f, in fact, that rock was laid down, it's not walkable anymore.”) (Oliver). This
walkability objection dates back to October 2023. See Ex. A20 at 5.
Appellants speculated that the Rathvons had only put forward the neighborhood road
maintenance proposal to further construction of their single-family home. Day 3 at 5:09
(Oliver); Day 3 at 1:57-1:58, 2:50-2:51 (DiMaggio). Appellants injected their speculative
road improvement concerns into the SCUP permitting process. Through their counsel,
Appellants submitted a comment letter on the Rathvons’ SCUP application, which included
a figure of the Higher Cost Option from Mr. Rathvon’s October 2023 presentation. Ex. DCD-
06 at 9. In that letter, Appellants erroneously alleged that Mr. Rathvon intended to
“significantly improve[]” Twana Way and commented that “[i]f this is still the applicant’s
2 Ms. Smith is referred to as Barbara Paulson in the hearing testimony, but the email she provided as a public
comment uses the name Barbara Smith.
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plan, then that should be included and evaluated as part of the project application, which may
in turn trigger SEPA review.” Id. at 10.
The neighborhood road maintenance proposal was never implemented, and, at the
hearing, Mr. Rathvon unequivocally repeated his prior written statement to the County that
he has no intention of making road improvements to Twana Way. Day 4 at 3:13-3:14, 4:50-
4:53; Ex. DCD-08, p. 3 (“We are not proposing to alter or expand the road, including “cut
and fill” activities or the removal of trees.”). Mr. Rathvon testified that he did not include
improvements to Twana Way in any of his permit applications and that he was not and is not
contemplating road improvements on Twana Way. Day 4 at 3:13-3:14, 4:50-4:53.
Ms. Frostholm testified that the County never received any formal applications from
the Rathvons for road improvements on Twana Way. Day 1 at 1:35. Ms. Frostholm stated that
it was “very clear to [her], [that Mr. Rathvon was] expecting to maintain [Twana Way] in its
current condition.” Day 1 at 1:02. Even Appellants concede that they are “not aware of any
formal proposal at the County” for the Rathvons to improve Twana Way. Hearing Day 3 at
2:00 (DiMaggio).
At the hearing, Mr. DiMaggio wrongly claimed that Mr. Rathvon and Ms. Barbara
(Paulson) Smith had worked together on an unsolicited proposal to repair Twana Way at the
curve on the Oliver/DiMaggio property. Day 1 at 5:55-5:56; Day 3 at 2:18-2:23. In fact, Ms.
Smith submitted a public comment on September 29 contradicting Mr. DiMaggio’s testimony
on this point, stating it was “completely untrue”.3 In fact, Mr. Rathvon had nothing to do with
the Van Ness Construction proposal for the Oliver/DiMaggio property; Ms. Smith confirmed
that she and Mr. DiMaggio had worked on it together; and Mr. DiMaggio first provided the
proposal to Mr. Rathvon nine months later. Smith Public Comment; Ex. RR-20.4
3 Ms. Smith stated: “I have heard that Dimaggio’s (sic) are now saying I worked with Rathvon on the VanNess
situation which is completely untrue. I never talked with Rathvon about this at all.”
https://test.co.jefferson.wa.us/WeblinkExternal/Browse.aspx?startid=9978585&repo=Jefferson&dbid=0
4 The Van Ness proposal is dated November 6, 2022 and Mr. DiMaggio emailed it to Mr. Rathvon on August
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Apart from Appellants’ testimony and comment letters, Appellants point to just two
sentences in the entire record as “proof” that the Rathvons intend to engage in substantial road
improvements to Twana Way—a sentence in Geoff Malick’s February 25, 2025 geologic
hazard assessment of the road and an email from Terry McHugh. Mr. McHugh emailed Mr.
McShane at Stratum Group, repeating a request from the County for more geotechnical
information on Twana Way: “Greg Ballard at DCD would like to see a brief statement from
you regarding the stability of the Twana Way roadway. Reason being that Rich may have to
make some minor improvements during construction as heavy traffic increases.” Ex. RR-30
at 6 (emphasis added)5.
Mr. McShane testified that he tasked Mr. Malick with conducting the review because
Mr. Malick was going to be in the area. Day 2 at 5:19-5:20, Day 3 at 00:17-00:18. In his
geologic hazard assessment for Twana Way, Mr. Malick wrote: “It is our understanding that
you are proposing to improve Twana Way to allow construction vehicle access to your
property at 660 Twana Way.” Ex. DCD-09 at 2. Mr. Malick testified that his sole
understanding of Mr. Rathvons’ project was Mr. McHugh’s email (Ex. RR-30 at 6) and a
brief conversation with Mr. McShane. Day 3 at 3:57-4:01, 4:08-4:09, 4:13. Mr. Malick never
had a conversation with Mr. Rathvon before writing his report, and had no direct knowledge
of Mr. Rathvon’s proposed residential construction project. Id. Finally, in both his declaration,
submitted as Ex. RR-30, and in his hearing testimony Day 4 at 4:17, 4:21 (should have written
“may” instead of “will”), Mr. Malik explained that he did not conduct any analysis of
construction vehicle sizes or turning radii; that his assumption regarding potential road-
widening was made in an effort to be over-inclusive in his geotechnical analysis; and that he
31, 2023. Ex. RR-20.
5 Mr. Rathvon testified that Mr. McHugh had limited authority to assist on the project. Mr. Rathvon filled out
the applications himself because he did not want his contractors doing so. Day 2 at 00:43-00:44. Mr. Rathvon
also testified that he has not authorized any of his contractors to make decisions on the project. Day 2 at 1:10;
Day 4 at 3:13.
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has “no reason to believe that road improvements would be required for construction access
to the Rathvons’ property.” Ex. RR-30, ¶8. Two sentences taken out of context in a record
that consists of hundreds of pages is not a sufficient basis for overturning the County’s SCUP
Decision.
Appellants have offered only speculation that the Rathvons are planning extensive
roadwork on Twana Way. Speculation is not substantial evidence. See, e.g. Henderson, 124
Wn. App. 747. Appellants’ preferred narrative, that the Rathvons are lying about their project 6
and the County is complicit in that lie7, is unsupported. Moreover, if there are any inferences
to be drawn, it should be that Ms. Frostholm testified truthfully and that the County adequately
analyzed the Twana Way’s geotechnical stability and its ability to be used safely, in its current
condition, for construction access to the Rathvons’ property. Day 4 at 00:24:07 (Frostholm)
(County included permit conditions for Twana Way and believes that the Rathvons have been
truthful in their representations to the County and will fulfill their legal obligations).
Appellants have not met their burden proof as to the material factual issue in this
case—namely, whether the Rathvons intend to engage in extensive roadwork on Twana Way
as a necessary element of their proposed shoreline residential construction. Contrary to
Appellants’ assertions, substantial evidence shows that the Rathvons have not proposed work
on Twana Way as part of their project. None of the permit applications filed by the Rathvons
6 See Day 1 at 4:53, 4:55 (Mr. DiMaggio testified he thought that Mr. Rathvon was misrepresenting facts about
why he was discussing maintenance on Twana Way); Day 3 at 5:09 (Ms. Oliver testified that Mr. Rathvon was
“making us I guess a little alarmed that there was, you know, maybe some subterfuge going on.”); Day 3 at 5:15-
5:16 (Ms. Oliver testifying that Mr. Rathvons’ road project went nowhere because “people felt that he wasn’t,
um, being quite honest about it, and people got pretty upset, so I think it was it was just dropped.”). There was
no subterfuge, in addition to emergency vehicle access, the October 2023 proposal recognized the existing
permitting for the VonBargen and Rathvon homes, and the need for constructing parties to repair any damages
to the road surface. Ex. RR-16 at 4 and 12.
7 Ms. Frostholm testified that the County was not engaged in a plot to keep Twana Way out of the project
description, stating that her conversations with the building department regarding whether the Rathvons intended
to do work on Twana Way were “just [her] trying to have a conversation within the department to make sure
we're on the same page. There's no, there's no subtext here that is … I'm not… there's no underlying thing that's
secret here. It's just coordination within the department on an application to build a new single‐family house.”).
Day 1 at 1:15-1:16.
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described any work on Twana Way, and the Rathvons have not filed a permit application for
any roadwork on Twana Way. Exs. DCD-03 at 9-16, 55-63, 67-70; DCD-04. The Rathvons
confirmed to the County that they “are not proposing to alter or expand the road, including
‘cut and fill’ activities or removal of trees.” Ex. DCD-8 at 3.
The County’s permitting process worked as it should. The County reviewed the SCUP
application for nearly three years. Exs. DCD-03 at 9-16, 55-63, 67-70; DCD-04. The County
put the SCUP application out for public comment, reviewed those comments, and acted upon
them by requesting additional information from the Rathvons. Id.; Exs. DCD-06; DCD-08.
The Rathvons provided that information. Ex. DCD-08 The County then conditioned the
project to take into account public concerns by requiring the Rathvons to seek appropriate
permits if they propose future work on Twana Way. Ex. DCD-11, Condition 7.
2. Appellants Provided No Legal Basis that Required the County to Include
Twana Way in the Project.
Appellants did not meet their burden to prove that the County should have included
Twana Way in their SCUP Decision as a matter of law. The Rathvons’ construction of their
single-family residence is not dependent or intertwined with any improvements on Twana
Way. Twana Way has been in existence since at least the early 1970s, before the Rathvon
family purchased their property. Exs. A1 at Ex. I; DCD-08 at 7-15; CL18; CL19. The
Rathvons do not need to modify Twana Way to build their home. Construction vehicles have
successfully used Twana Way to build and expand at least eight homes, as recently as
September 2025, without causing any slope stability issues. Rathvon SJ Decl. Exs. 1-4; Exs.
RR-31, RR-38, and RR-43 (photographs of construction vehicles on Twana Way).
As Mr. Richert, Mr. Miller, and Mr. VonBargen testified at the hearing, construction
vehicles have used Twana Way in its existing condition for construction projects for homes
in the area with no slope stability issues. Day 4 at 1:18-1:23 (VonBargen), 2:20-2:24 (Miller),
2:00-2:03 (Richert); see also Exs. CA08, RR-38, RR-45.
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Appellants testified that they have been able to drive down Twana Way toward the
Rathvons’ property without incident. Day 1 at 4:46 (DiMaggio); Day 4 at 5:36:33 (Oliver).
And, in an October 17, 2023 email, Mr. DiMaggio, recognized that construction vehicles
could use Twana Way in its existing condition (Ex. A20 at 5):
We recently saw a well digging truck successfully navigate Twana
all the way to the Rathvon property . . . Houses at the bottom of
Twana have been built in the past with the current road. We are not
seeing a need to ‘improve’ access for this reason.
Mr. Richert and Mr. Miller8 further testified that there are a variety of construction
means and methods that can be used that do not require any modifications to Twana Way.
Mr. Richert testified that while “Twana Way has its challenges” many types of construction
vehicles “are well within the realm of being able to get up and down that road.” Day 4 at 1:56-
2:03. Mr. Miller testified that he has driven Twana Way himself and that he can “get various
8 Appellants objections to the testimony of Larry Dean Reichert and Rob Miller are
unfounded. The request for some form of expert disclosure arose because the Appellants originally
submitted four maps prepared by their geotechnical consultant, GeoResources, (Exs. A14-16) without
any explanation as to what the maps meant or what their geotechnical expert(s) were prepared to say
about them.
In contrast, Applicant witness Larry Dean Richert had submitted a declaration in opposition
to Appellants’ summary judgment motion. Applicant’s Response, Ex. CA9. Mr. Richert explained
that he had forty-five years of experience in the construction industry, that he had built numerous
waterfront homes in Jefferson County and that he was the general contractor on the Rathvon project.
He stated that Twana Way had been used for construction access in the past, that he had not determined
a need for altering Twana Way, that he intended to use the road as it had been used in the past, and
that there were numerous construction techniques that could be employed to construct the Rathvon
residence. Richert Decl., ¶¶ 1-4.
Mr. Miller’s witness disclosure informed Appellants of his intended testimony. It explained
that he had been employed by Shold construction for thirteen years, that Shold developed and
maintained numerous gravel roads, and that Shold would be providing construction services for the
Rathvons. Mr. Miller made a site visit and testified based on his personal observations regarding the
ability of construction vehicles to use Twana Way to access the Rathvon property and the variety of
construction techniques and hauling options that could be used to safely construct the Rathvon’s home.
Furthermore, the Rathvons’ pre-hearing brief disclosed Mr. Richert and Mr. Miller’s expected
testimony. RR-44 at 13. Based on the foregoing, the Appellants were apprised of Mr. Richert’s and
Mr. Miller’s testimony, they had the witness disclosures for months without objection, and their
attorney had ample opportunity to cross-examine both witnesses. Under these circumstances, there is
no basis to exclude their testimony. Smith v. Sturm, Ruger & Co., 39 Wash. App. 740, 750, 695 P.2d
600, 607 (1985)(“[I]t is an abuse of discretion to exclude testimony as a sanction absent any showing
of intentional nondisclosure, willful violation of a court order, or other unconscionable conduct.”)
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vehicles down there [Twana Way] in its current condition.” Day 4 at 2:21. For example, Mr.
Miller testified he could use a smaller cement mixer to deliver concrete to the Rathvons’
property. Day 4 at 2:23. Concrete could also be pumped to the construction site or even mixed
on site. Id. Mr. Miller explained that dump trucks ranged in capacity from 2 yards to 12 yards
and that an appropriate size would be selected to safely perform the work. Day 4 at 2:23-2:24.
Mr. Rathvon testified that he is willing to incur higher construction costs to ensure that no
work on Twana Way is necessary for his project. Day 4 at 4:53.
The County conducted their own analysis of whether Twana Way could be used in its
current condition to construct the Rathvons’ project. The County conducted a site visit on
January 17, 2025 to examine Twana Way. Ex. A1 at Ex. I. The County also requested further
information on the stability of Twana Way from the Rathvons’ geotechnical consultant,
Stratum Group. Ex. DCD-09. Both Mr. Malick and Mr. McShane testified that Twana Way
was not at risk of landslide. was geologically stable, and could be used for construction access.
Day 2 at 5:00-5:01, 5:26-5:28, 5:51 (McShane); Day 3 at 4:17-4:19 (Malick); see also Exs.
DCD-09, RR-30. Based on his personal evaluation of Twana Way, Mr. McShane confirmed
that Twana Way is wide at the culvert near the Rathvons’ property, and there is no evidence
of runoff or sediment transport to the shoreline environment or Dabob Bay. Day 2 at 5:08-
5:11.
After reviewing this information, the County determined that Twana Way, in its
existing condition, could be used for construction of the Rathvons’ residence. Ex. A1 at Ex.
I. The County determined that, if necessary, minor maintenance to Twana Way would be
governed by the County’s critical areas regulations and, following the County’s evaluation of
the proposed work, might fall within an exemption to the County’s critical areas ordinance.
(JCC 18.22.230(4)(c)). Id.
Local government legal interpretations of their own SMPs are given substantial
weight where that interpretation falls within the local government’s specialized expertise.
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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). Here, the County’s decision that Twana
Way is a critical areas issue is consistent with the Washington State Supreme Court’s
affirmation that critical areas within the SMA’s jurisdiction are governed by the SMA, and
critical areas outside of the shoreline are governed by the Growth Management Act.
Futurewise v. W. Washington Growth Mgmt. Hearings Bd., 164 Wn.2d 242, 189 P.3d 161
(2008) (Per J.M. Johnson, J., with three justices concurring and one justice concurring in
result.).
The County determined that future work on Twana Way, which is outside of the
shoreline jurisdiction, would be regulated under its critical areas ordinance. The SCUP
Decision ensures that the Rathvons will comply with the critical areas ordinance by explicitly
stating that the SCUP does not authorize any modifications to the existing road and by
requiring that the Rathvons obtain additional permits for any potential future modifications
to Twana Way. Ex. DCD-11, Condition 7.
Appellants have not offered any evidence that improvements to Twana Way are
necessary for the Rathvons to build their single-family home or that construction traffic will
undermine the road’s stability. Appellants have merely speculated and requested additional
analysis. For example, Mr. DiMaggio testified that:
We can visually see and feel the topical changes [on Twana Way],
and we know that if it’s affecting and it’s grinding down the surface
area, it does have, and I’ve heard a lot of the geotech experts speak
about that, a lot goes on underneath. And that’s where the real fear
is, because… You’re gonna get an impact on the water line, too.
And that needs to be measured, as is the road. If he uses it as is,
he's got to figure out. What damage might that cause? And then
if he's going to change the road, what’s going to happen with the
changes? It’s almost as if, as is, it needs to be figured out and tested,
and if it’s changed, it also needs to be figured out and tested to
protect everybody and the environment.
Day 3 at 2:52-2:35 (emphasis added).
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Similarly, both of Appellants’ geotechnical consultants—Crescent Environmental 9
and Mr. Cedzich10—opined on their preferred means of geotechnical analysis for assumed
new road improvements. Exs. DCD-06 at 16; A16. Neither of Appellants’ experts have
conducted their own investigations of Twana Way.
The County is the arbiter of the weight to be placed on expert opinions, especially
when those opinions conflict. See City of Des Moines v. Puget Sound Reg’l Council , 98 Wn.
App. 23, 37, 108 Wn. App. 836 (1999) (“When an agency is presented with conflicting expert
opinion on an issue, it is the agency’s job, and not the job of the reviewing appellate body, to
resolve those differences.”); Gerla v. City of Tacoma, 12 Wn. App. 883, 894, 533 P.2d 416
(1975) (“At the very least, the decision was debatable and made upon conflicting evidence.
As such, it is not subject to judicial interference.”). Here, during its review, the County had
three geotechnical reports from Stratum Group based on on-the-ground analysis from
geotechnical engineers with decades of experience in Western Washington, and one report
from Crescent Environmental that solely provided a critique of Stratum Group’s work. The
County acted well within its discretion when it determined that Stratum Group’s reports
should be afforded more weight.
9 Crescent Environmental’s report should not be given any weight as evidence. Appellants did not make any of
the report’s authors available to testify during the hearing. Additionally, Mr. Cedzich testified that he did not
speak to anyone at Crescent Environmental when he prepared his report. Day 2 at 2:27-2:30.
10 Mr. Cedzich’s report is based on numerous inaccuracies and should not be accorded much evidentiary weight.
Mr. Cedzich provides no testimony on salient issues. Mr. Cedzich first testified that he had no particular project
in mind when he completed his analysis. Day 2 at 2:19-2:20. On rebuttal, Mr. Cedzich then testified that his
analysis was based on the Higher Cost Option Mr. Rathvon had discussed in his October 2023 presentation. Day
4 at 5:14-5:15. Mr. Cedzich analyzed a project that has not been proposed by the Rathvons. Furthermore, the
basis for Mr. Cezich’s opinion is that Stratum Group’s report failed to comply with JCC 18.22.530(4)(b) and
18.22.945(2)(d), the WSDOT Geotechnical Design Manual (GDM) Section 7.2 and 7.6.4, and AASHTO LRFD
Bridge Design Specifications Section 11.6. Ex. A16 at 1. JCC 18.22.530(4)(b) does not exist in the County’s
code, and Mr. Cedzich has been unable to provide the correct citation. Day 2 at 3:16-3:20. Section 7.6.4 of the
WSDOT GDM also does not exist. See Ex. RR-30. The AASHTO standard referenced applies to bridges and
retaining walls constructed for bridges. See Ex. RR-31. Finally, Mr. Cedzich is not a licensed geologist in
Washington state. Day 2 at 2:08 (Cedzich). Most of his experience is in Canada or the southern United States.
Day 2 at 1:14, 3:12-3:15; Ex. A12.
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3. Existing and Proposed SCUP Conditions Address Appellants’ Concerns.
The County has addressed potential environmental impacts associated with work on
Twana Way by adding a condition to the SCUP Decision requiring the Rathvons to obtain a
separate permit if future work is done to the road. Ex. DCD-11 at 1. At the hearing, Ms.
Frostholm proposed that the Examiner add one new condition to the SCUP Decision to
address the road issue:11 requiring the applicant to restore the road to its existing condition
post-construction. Day 4, 00:11-00:12. Mr. Rathvon agreed to this proposed condition. Day
4 at 32-33. Mr. DiMaggio testified that this condition would address his concerns. Day 4 at
2:57-2:58. Appellants’ initial public comment letter on the SCUP application also requested
similar mitigation. Ex. DCD-06 at 11.
The Examiner has authority to modify a decision on appeal by adding conditions
pursuant to the Rules of Procedure. RoP 6.1(c); see In re King Cnty. Hr’g Exam’r, 135 Wn.
App. 312, 319-22, 144 P.3d 345 (2006) (relying on delegation of authority in King County
Code); Woodinville Water Dist. v. King Cnty., 105 Wn. App. 897, 906, 21 P.3d 309 (2001)
11 Based on the mitigation proposed in Ms. Cooper’s Cumulative Impact Analysis, Ms. Frostholm also
recommended the following be added as permit conditions to address concerns about construction impacts to
the shoreline environment.
General Best Management Practices for Small Construction Sites
• Hand-tools should be used whenever practicable, consistent with standard building practices,
• Marking the critical root zone (CRZ) of trees with paint, flagging, or other to avoid running equipment
and stockpiling materials in CRZ, therefore limiting soil disturbance and compaction. Additionally,
any necessary heavy equipment and/or truck access should entail a layer of clean woodchips, or
sufficiently wide and thick steel plates in the vehicle wheel path to avoid rutting and damaging the
vegetation,
• Construction should not be conducted during heavy precipitation events, regardless of the protection
of vegetation. If vegetation is damaged, or rutting occurs, it is recommended that those areas be re-
planted with native vegetation. If planting is necessary, a layer of clean woodchips should also be
installed around plants at a minimum depth of 3 inches,
• Limit the extent of clearing operations and phase construction operations,
• The duff layer, native topsoil, and natural vegetation should be retained in an undisturbed state to the
maximum extent practicable.
Ex. DCD-8 at 58; Day 4 at 00:12-00:14.
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(same). Thus, the Examiner can include the agreed-upon condition in her Decision.
D. The County’s SCUP Decision is Consistent with the SCUP Permit Criteria 12
The County may issue a SCUP when the proposed use:
will be consistent with the SMA and SMP;
will not interfere with normal public use of public shorelines;
design of the project will be compatible with other permitted
uses within the area;
will not cause adverse effects to the shoreline environment in
which it is to be located; and
that the public interest suffers no substantial detrimental effect.
JCC 18.25.590(2). The County must also consider “the cumulative environmental impact of
additional requests for like actions in the area.” JCC 18.25.590(3).
1. The County Analyzed the Potential for Adverse Environmental Effects of
the Rathvons’ Project.
Although single-family home projects are exempt from environmental impact review
under the State Environmental Policy Act, Chapter 43.21C RCW (“SEPA”), JCC
18.25.590(2) requires the County to consider the potential adverse environmental effects that
a proposed shoreline conditional use could have on the shoreline environment. Substantial
evidence supports that the County fully considered those impacts here.
Over a nearly three-year period, the Rathvons provided the County with numerous
technical analyses from qualified experts in their field, such as analyses of the septic system,
multiple geotechnical reports, stormwater analyses, a stream report, and a cumulative impacts
report. Exs. DCD-03 at 9-16, 55-63, 67-70; DCD-08; DCD-12 at 1. Some of these analyses
were prepared at the request of the County in response to public comments on the SCUP
12 On Day 3, Appellants dropped any consideration of the actual potential shoreline impacts from the Rathvons’
residential construction—such as the septic system, stormwater management, aesthetics, or cumulative
impacts—because there were none. However, the Rathvons present this argument to show the County’s
diligence
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application. Exs. DCD-08, A1 at Ex. I; RR-31; RR-42.
Stratum Group submitted five geotechnical reports—three to the County during the
permitting process and two as part of the hearing. Mr. McShane’s first geologic hazard
assessment from Mr. Rathvon’s single-family home project was conducted in February 2022.
Ex. DCD-14. As part of this assessment, Mr. McShane reviewed County geological hazard
mapping; shoreline stability maps and historical documents; conducted a field visit; and
conducted a slope stability analysis.13 This slope stability analysis assessed the shoreline bluff
slope and slopes on the eastern portion of the site, including the two valley slopes above
Twana Way and the ridge in between those valleys. Id. at 9-10. Mr. McShane also assessed
the erosional potential of the slope above the beach on the property. Id. at 11-12. He concluded
that:
Based on our geologic hazard assessment, it is our opinion that
construction of a single-family house and associated septic
system on the lower upland on the subject property will not be
at risk from landslides or erosion within the expected life of the
structure as long as the building and septic systems are located
at least 30 feet from the top of the steep shoreline bluff slope.
Furthermore, development within the area [designated for
homesite construction] will not increase the risk of landslides
or erosion on or off the site as long as the recommendations of
this report are followed.
Id. at 13.
Stratum Group submitted an updated geotechnical hazard assessment in November
2024 based on comments the County had received from Appellants and their consultant,
Crescent Group. Ex. DCD-08.
Appellants have not provided their own geologic hazard assessment of the slope
stability of Twana Way, and as such, Mr. McShane and Mr. Malick’s expert opinion that
13 Mr. McShane determined that the “unstable recent slide” “indicated on the shoreline stability map does not
appear in any aerial images dating back to 1951 or within the lidar bare earth imagery. There was an area of bare
ground on a slope area to the north visible in the 1976 aerial photograph, but it appears to be associated with
land grading and/or mining associated with road construction, and Mr. McShane suspects that the designation
was mis-mapped.” Id. at 10.
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neither the home site nor Twana Way pose landslide risks remains uncontroverted. Again,
Appellants’ experts—Cresent Group and Mr. Cedzich—have not completed their own site
analysis and their recommendations are related to analysis they believe should have been
completed for Twana Way road improvements that are not part of the Rathvons’ project.
In the context of SEPA appeals, hearing examiners recognize that an appeal cannot be
successfully maintained solely on the basis that appellants have concerns about an impact or
that more study is needed. If the responsible official has “shown that they have fully reviewed
and considered such comments and concerns, including requiring additional review and
analysis from an applicant and the process proceeds to appeal, the bar is raised for concerned
appellants to proactively provide adequate evidence of significant impacts that were not
considered by the SEPA reviewer.” In the Matter of the Appeal of Save Madison from a
Decision Issued by the Director, Seattle Department of Construction and Inspections, Seattle
Hearing Examiner File No. MUP-20-02314 at 11 (Amended Findings and Recommendation
of the Hearing Examiner for the City of Seattle, Apr. 5, 2021) (citing Boehm v. City of
Vancouver, 111 Wn. App. 711, 719, 47 P.3d 137 (2002). Appellants in this case have failed
to provide any evidence that the Rathvons’ project is likely to cause significant impacts to the
shoreline environment. Instead, Appellants ask for more analysis.
Three biologists or ecologists—Ms. Frostholm, Peninsula Environmental, and Ms. Jill
Cooper, from Marine Surveys and Assessments,—reviewed the Rathvons’ project and
determined that the project will not have impacts on species or habitat. Ms. Cooper, a senior
ecologist with 15 years of experience, testified that the Rathvons’ project would not have
negative impacts to sensitive species or critical habitat areas, if all regulations are followed.
Day 4 at 00:49. Ms. Cooper reviewed the Rathvons’ proposed project footprint in relation to
relevant buffers for critical habitat, streams, and shorelines. Day 4 at 48:00; Ex. RR-8. Ms.
Cooper concluded that because the project was located outside of the critical habitat, stream,
14 Available at: https://web6.seattle.gov/Examiner/case/MUP-20-023 (last accessed Aug. 28, 2025).
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shoreline buffers, and the project is following the relevant code provisions, there would be no
significant negative impacts to sensitive species or critical habitat areas and there would be
no net loss of ecological functions and values. Day 4 at 00:48-00:50; Ex. DCD-08 at 59. Ms.
Cooper also testified that Twana Way is too far away from critical habitat, stream, and
shoreline buffers to have significant negative impacts on endangered or listed animal and
plant species within Dabob Bay or their habitats. Day 4 at 1:09-1:11. Appellants have not
offered any expert witness testimony or technical studies to contravene Ms. Cooper’s reports
and testimony.
The County’s review ensured that construction of the Rathvons’ single-family home
will not have adverse shoreline impacts. Conditions 4, 5, 8, and 9 of the SCUP Decision
require the Rathvons to install a silt fence between 150 and 160 feet from the OHWM to
prevent sediment from the uplands construction from entering the bay, to refrain from
construction activities within the 50-foot buffer for the off-site stream, to ensure that all
construction activities are conducted at least 150 or 160 feet from the OHWM, and to follow
the Department of Ecology’s 2019 Stormwater Manual and the stormwater management best
practices identified therein. Ex. DCD-11 at 1-2.
2. The Rathvons’ Single-Family Home Will Not Have Cumulative Impacts
on the Shoreline Environment.
At the County’s request, Ms. Jill Cooper conducted a cumulative impacts analysis and
concluded that the Rathvons’ project would not have any significant adverse cumulative
impacts. Day 4 at 1:05; Ex. DCD-08 at 59. Ms. Cooper testified that the Rathvons’ project
was similar to all of the surrounding parcels, which had been developed as single-family
homes since the 1970s. Day 4 at 00:54-00:55; Ex. DCD-08 at 52 (Fig. 2). The remaining
undeveloped properties in the area have been protected from development by the Washington
Department of Natural Resources or Northwest Watershed Institute. Id. at 55. Ms. Cooper
testified that “it’s unlikely that there’s going to be a whole bunch more future development,
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because there’s not really any space left.” Id. at 00:56. Ms. Cooper concluded that there would
be no significant cumulative impacts on the shoreline environment because of the low
potential for future development in the area and because the Rathvons’ project would not have
impacts on sensitive species or critical habitat areas. Day 4 at 1:04-1:05. Appellants have not
provided any evidence to the contrary.
3. The Rathvons’ Single-Family Home Is Compatible with Other Permitted
Uses in the Area.
The Rathvons’ property is the last piece of land that has not yet been developed into
a single-family residence or set aside for conservation. Adjacent properties contain single-
family homes, and the Rathvons’ home has been designed to fit in with its surroundings. RR-
3; RR-29.
The Rathvons’ architect designed the home to reduce disturbance to the site by
“nestl[ing the home] in the slope of the site using the topography to enter the home on the
upper level and reduce the home’s apparent size from the road.” Ex. RR-29 at 2. The home
has been designed so that a minimum of the home is exposed on both the landward and
waterward side of the home. Id. The home is placed at the maximum shoreline setback, and
the Rathvons have not requested any exceptions from the shoreline setback requirements. Id.
In retaining as many existing trees as possible on the property, using dark colors for the
home’s exterior, and employing a roof with a low slope, the architect has designed a home
that will blend into the forested surroundings. Id.
4. The Rathvons’ Single-Family Home Will Not Cause the Public Interest to
Suffer a Substantial Detrimental Effect
The County concluded that because the Rathvons’ proposal is to construct a private,
single-family residence, there would be no substantial detriment to the public interest. Exs.
DCD-11 at 1; DCD-12 at 7. Appellants have not challenged this finding, nor provided any
evidence to contradict it.
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5. The Rathvons’ Single-Family Home is Consistent with the SMA and SMP
Appellants have offered no technical studies, scientific evidence, or any information
that contests the County’s findings that the Rathvons’ project is consistent with the SMA and
SMP. Instead, Appellants complain that the County did not analyze the Rathvons’ Project
enough. However, the County considered the Appellants’ comments and required additional
information in response to these comments, including two more geotechnical analysis and a
cumulative impacts analysis. Exs. DCD-03 at 9-16, 55-63, 67-70; DCD-04; DCD-08. The
County cannot be faulted for relying on credible analysis, rather than conjecture, to support
its SCUP Decision.
6. The Rathvons’ Single-Family Home Will Not Interfere with Normal
Public Use of the Shorelines.
As discussed above, the Rathvons’ property is located on private land. There are no
easements or other agreements that give the public legal access to the shoreline on the
Rathvons’ property. Exs. C-18; C-19; and C-21.
E. Appellants’ Additional Attacks on the County’s Permitting Process Fail as a
Matter of Law.
In support of their appeal, Appellants also allege the following deficiencies in the
County’s process. Namely, the County (a) failed to require the Rathvons to provide complete
responses to SCUP application questions, (b) failed to follow County code requirements for
processing a SCUP application, and (c) failed to obtain the correct type of geotechnical report
for the Rathvons’ project. None of these allegations are supported by substantial evidence,
nor do they reflect an incorrect application of the law by the County.
Appellants allege that the SCUP Decision should be remanded because the Rathvons
failed to provide complete answers to SCUP application. The record in this appeal shows the
County had ample information to make an informed decision on the Rathvons’ SCUP
application. As discussed above in Section II.C.1, the County gave the Rathvons’ proposal a
great deal of review and the permitting process worked as it should. Mr. Rathvon testified at
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the hearing that he completed the permit application himself, with help from his consultants.
The County reviewed the SCUP application, requested additional information multiple times,
and the Rathvons responded with the requested information. The County requested more
information from the Rathvons in November 2024 regarding road improvements,
construction staging, additional geotechnical analyses, and cumulative impacts based on
comments made by Appellants. Ex. A1 at Ex. D. The County then spent an additional three
months reviewing this information before issuing the SCUP. See Ex. DCD-11. The record
demonstrates that the County had sufficient information upon which to make its permitting
decision. As discussed more fully in the Rathvons’ prehearing brief, application deficiencies
may be cured through information provided to the County following the application and by
information provided at the hearing. Alexander v. City of Port Angeles, SHB Nos. 02-027 &
02-028 at ¶ XXIV, 2003 WL 21511188, at *14 (Findings of Fact, Conclusions of Law and
Order, July 1, 2003).
Appellants also complain that the Rathvons did not provide adequate analysis of how
the Project complies with the SMP criteria, specifically JCC 18.25.630(12) and (16). The
Rathvons provided this information as part of the cumulative impacts analysis. Ex. DCD-08
at 43-66. Although the County code requests the applicant’s opinion, the County makes the
decision as to whether a proposed project meets the SCUP criteria and is consistent with the
SMP. See RCW 90.58.050, .140. The County’s Staff Report provides a detailed analysis of
how the Rathvons’ project is consistent with both the SCUP criteria and the SMP. Ex. DCD-
12. The County’s actions evidence the County’s diligence. The County fully satisfied its
permitting obligations by conducting a detailed, lengthy review of the Rathvons’ application
and requesting additional information where needed.
As discussed in more detail in the Rathvons’ prehearing brief, Appellants make
numerous allegations as to what the County’s code requires in considering whether to approve
a SCUP. However, the majority of these arguments cite to the County’s SMP policies as
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mandatory requirements. Ex. CA01 at ¶¶ 4.5, 4.8, and 4.9.15 Contrary to Appellants’
arguments, SMP regulations, not policies, are the standards upon which a shoreline
application is judged. Richter v. City of Des Moines, SHB No. 10-013 (Order on Partial
Summary Judgment, Dec. 7, 2010) (Analysis, § B) (citing (WAC 173-26-191(1)(a)). The
Rathvons’ SCUP application and the SCUP Decision both comply with the applicable
shoreline regulations in JCC 18.25.320(2)(a), (b). Ex. DCD-11, Conditions 4, 6, 9, and 11.
Appellants next allege the County violated its code requirements—specifically, JCC
18.25.070(1)(b)(v)—by failing to analyze “the impacts of future foreseeable road
modifications” as “incremental and cumulative impacts.” Ex. CA01 at ¶ 4.5. The County code
does not contain a section 18.25.070(1)(b)(v). Assuming Appellants intended to reference
JCC 18.25.270(1)(b)(v), Appellants have again cited to a policy instead of a regulation. The
County exercised its authority under the applicable regulation at JCC 18.25.270(3)(b) and
required the Rathvons to submit a cumulative impacts analysis that addressed aesthetic
impacts and an analysis of the geologic conditions of Twana Way. Exs. A1 at Ex. D; DCD-
09. The Rathvons also submitted renderings of their proposed home. Exs. A1 at Ex. Q, p. 1;
RR-3; RR-29. Again, the County followed its shoreline regulations in issuing the SCUP.
Therefore, the SCUP Decision should be affirmed.
For the first time at the hearing, Appellants argued that the County should have
required the Rathvons to submit a geotechnical report per JCC 18.22.540(4)(c). Appellants
assert that because the Rathvons are proposing to construct improvements on Twana Way
that a geotechnical report should have been required because road construction would require
design engineering recommendations. Ms. Frostholm testified that she did not request a
geotechnical report because the Rathvons were proposing a single-family home, not a road
improvement project. Day 1 at 1:41-1:43. As discussed above, substantial evidence supports
15 During the hearing, Appellants withdrew claims in Paragraphs 4.8 and 4.9 of their statement of appeal. As
such, these claims are no longer part of their appeal and are not discussed further herein.
RESPONDENTS’ POST-HEARING BRIEF - 25 SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101
Telephone 206-622-1711
143646\288596\49124485.v1
the County’s determination that no road work was proposed as part of the Rathvons’ project.
III. CONCLUSION
Appellants have failed to meet their burden to prove that the SCUP Decision was not
based on substantial evidence or was legally flawed. Therefore, the Hearing Examiner should
deny the appeal and affirm the County’s SCUP Decision, with the addition of the conditions
proposed at the hearing.
Dated this 20th day of October, 2025.
SCHWABE, WILLIAMSON & WYATT, P.C.
By: /s/ Patrick J. Mullaney
Patrick J. Mullaney, WSBA #21982
Email: pmullaney@schwabe.com
Julie Wilson-McNerney, WSBA #46585
Email: jwilson-mcnerney@schwabe.com
1420 Fifth Avenue, Suite 3400
Seattle, WA 98101
Telephone: 206-622-1711
Fax: 206-292-0460
Attorneys for Applicant
CERTIFICATE OF SERVICE - 1 SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101
Telephone 206-622-1711 143646\288596\49124485.v1
CERTIFICATE OF SERVICE
The undersigned declares under penalty of perjury, under the laws of the State of
Washington, that the following is true and correct:
I hereby certify that on the 20th day of October, 2025, I caused to be served the
foregoing RESPONDENTS’ POST-HEARING BRIEF on the following parties via E-Mail:
Jefferson County:
Carolyn Gallaway
Jefferson County Hearing Examiner Clerk
Carolyn@co.jefferson.wa.us
Greg Ballard
Department of Community Development
gballard@co.jefferson.wa.us
Ariel Speser, WSBA #44125
Civil Deputy Prosecuting Attorney
aspeser@co.jefferson.wa.us
lmikelson@co.jefferson.wa.us
Donna Frostholm
Associate Planner – Lead/Wetland Scientist
dfrostholm@co.jefferson.wa.us
Adiel F. McKnight
Deputy Clerk of the Board, CMC
afmcknight@co.jefferson.wa.us
Attorney for Appellants John DiMaggio
and Michelle Oliver
Bryan Telegin, WSBA #46686
Telegin Law PLLC
216 6th Street
Bremerton, WA 98337
bryan@teleginlaw.com
jamie@teleginlaw.com
Tara Roberts, Legal Assistant