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HomeMy WebLinkAbout.FINAL Rathvon Shoreline CUP Appeal Hearing Examiner Decision1 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 1 OF 52 OFFICE OF THE HEARING EXAMINER JEFFERSON COUNTY IN RE APPEAL OF RATHVON SHORELINE CONDITIONAL USE PERMIT DCD FILE NO. SDP2023-00020 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION OVERVIEW AND SUMMARY OF DECISION Property owner and applicant Richard and Renee Rathvon (“Applicant”) proposes to develop a single-family residence, with onsite septic and drilled well, on vacant property within the Natural shoreline environment designation along Dabob Bay (the “Application”). The Applicant’s property is addressed as 660 Twana Way, Quilcene, Washington 98376 (the “Property”). Exs. 01 and 11. The proposed new house will be constructed outside of the 150-foot shoreline buffer and 10-foot building setback. Ex. 11. A shoreline conditional use permit (“SCUP”) is required for construction of a single-family home in the Natural shoreline designation under the Shoreline Master Program (“SMP”) set forth in Chapter 18.25 of the Jefferson County Code (“JCC”). There is only one means of access to the Property (other than by barge, which is not proposed), via a narrow, “primitive” private road, Twana Way. Twana Way may have been a logging road at one time. It is cut into the hillside, and includes a stretch adjacent to a steep ravine above property owned by appellants John DiMaggio and Michelle Oliver (“Appellants”). Twana Way has been in existence since at least the 1970s; the Applicant’s proposed home is likely the 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 2 OF 52 last house that will be constructed along Twana Way. All other homes in the area have been built with construction vehicles having used the same access road. There is no question that the Applicant has an easement right to use Twana Way for access to the Property. On April 10, 2025, the Jefferson County Department of Community Development (“DCD”) issued a Type II administrative shoreline conditional use permit approving the Application, File No. SDP2023-00020 (the “SCUP Decision”), subject to eleven (11) conditions of approval. Appellants filed a timely appeal of the SCUP Decision on April 23, 2025 (the “Appeal). Among other things, the Appeal alleges that Jefferson County failed to obtain enough information from the Applicant to properly analyze and require appropriate mitigation of potential impacts of the proposed project on the shoreline environment. The main question in this Appeal is whether the County conducted an appropriate, thorough review of the Application to ensure that potential impacts to the shoreline of Dabob Bay are addressed and mitigated. Appellants submit that the County failed to do so and that the Application should be denied. Appellants’ primary arguments1 focused on whether the County should have, but failed to adequately analyze: (a) potential shoreline impacts resulting from the Applicant’s use of Twana Way as a haul route for heavy construction equipment; and (b) whether the Applicant’s proposal includes widening and potential re-grading of Twana Way, such that Jefferson County erred in determining that road improvements are “outside the scope of the shoreline application.” These issues include the following related questions: (1) will the Applicant’s mere use of the road result in de facto road alterations that will negatively impact the Dabob Bay shoreline 1Appellants’ attorney confirmed on September 30, 2025 (Day 4 of the hearing) that Appellants are dropping the claims stated in paragraphs 4.8 and 4.9 of the Appeal. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 3 OF 52 environment as a result of erosion and potential landslides carrying harmful sediment and debris into the bay; (2) are improvements to Twana Way (proposed or contemplated) part of a “full, unified and integrated physical project,” subject to Shoreline Management Act (“SMA”) and Shoreline Master Program (“SMP”) review as an integrated and non-severable part of the total proposed single-family home development; and (3) do conditions of approval adequately protect the interests of the public using the road, surrounding property owners and the shoreline environment? Over the course of a four day hearing, testimony was largely focused on whether Applicant proposed, or whether he should have proposed, improvements to Twana Way for purposes of construction vehicle access to the Property. The parties’ expert witnesses provided competing testimony and written reports analyzing the critical areas in which Twana Way is located and/or to which it is adjacent, including a landslide hazard area and a stream/stream buffer. The parties’ experts set forth their conclusions regarding potential impacts from use of the road – both with and without improvements. The Applicant provided testimony and photographs of other construction vehicles successfully navigating Twana Way. Several of Applicant’s witnesses2 testified regarding the ability of construction vehicles to use Twana Way 2Appellants objected to the admissibility of testimony of Larry Dean Reichert and Rob Miller, stating that Applicant’s attorneys did not comply with Section B of Hearing Examiner’s Pre- Hearing Order which directed that each party’s witness and rebuttal witness lists include a “brief 2-3 sentence summary of the testimony to be provided.” Applicant asserts that Larry Dean Richert’s declaration (Ex. CA-9 ¶¶ 1-4), submitted in opposition to Appellants’ summary judgment motion provided appropriate notice of the subject of his testimony at hearing. Applicant also asserts that Mr. Miller’s witness disclosure informed Appellants of his intended testimony; Applicant’s Pre-Hearing Brief also addressed the intended testimony of Messrs. Richert and Miller. The Hearing Examiner finds that, under these circumstances, there was no undue surprise as to the subjects of testimony and conclusions offered by these witnesses. Appellants’ attorney was provided an opportunity to cross-examine each witness. Appellants’ objection is formally overruled. See Smith v. Sturm, Ruger & Co., 39 Wn. App. 740, 750, 695 P.2d 600, 607 (1985). 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 4 OF 52 to access the Property and the variety of construction techniques and hauling options that could be used to safely construct the proposed home. Appellants provided testimony and photographs of the road in its existing condition and following recent use of Twana Way by other construction vehicles. Appellants testified regarding their concerns of the impacts of Applicant’s contractors’ use of the road and expressed fears regarding the steep slopes and drop-offs from the road onto their property, the ability of the road to bear the weight of heavy vehicles, and potential landslides and erosion impacts that may result in the transfer of debris downstream into Dabob Bay. Appellants expressed a desire to be able to keep using Twana Way for their personal enjoyment and health, and the health of the dogs that they foster. They fear that approval of the proposed development will negatively impact them. To determine whether the Applicant did, in fact, propose improvements to Twana Way, testimony and evidence was presented concerning statements made by persons other than the Applicant3 in emails and in a February 25, 2025 report. Among other things, Appellants focused on correspondence from Terry McHugh, a real estate agent and consultant, to Greg Ballard, requesting that the County add language to the building permit providing blanket approval for any future “repairs, maintenance and improvements to Twana Way to allow for safe travel necessary for construction and inspections.” Ex. A-22. On the other hand, Applicant Richard Rathvon assured Planner Donna Frostholm on January 30, 2025 that he was not proposing to 3 Appellants’ presentation of their case focused in part on whether Terry McHugh, a real estate agent and consultant who did not testify at the hearing, acted as an agent for Applicant. The Hearing Examiner finds that the circumstantial evidence in this regard is not enough to overcome the direct testimony of Mr. Rathvon (Hearing Day 2 at 00:43-44; Hearing Day 2 at 1:10; and Hearing Day 4 at 3:13) in which he stated that Mr. McHugh had limited authority to assist on the project. Mr. Rathvon confirmed that he did not provide him authorization to make decisions on the project. There is no signed authorization form providing agency authority to Mr. McHugh from Mr. Rathvon in the record. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 5 OF 52 alter or expand the road, including “cut and fill” activities or removal of trees. Ex. 08, p. 3. Admittedly, communications received by DCD during its review of the Application regarding whether the Applicant was, in fact, seeking approval of road improvements were unclear. E.g. Ex. A-01, p. 53 (February 5, 2025 meeting notes indicating Applicant’s contractor was being “wishy-washy on whether road improvements” would be required); Testimony Day 1 at 1:13:00 and 1:30:00. And, the Applicant emailed a report entitled “Geologic Hazard Assessment for Twana Way Improvements,” to Planner Frostholm on March 13, 2025, without comment or clarification. Ex. 9; Testimony Day 2 at 00:54:29. Still, given the Applicant’s affirmation on January 30, 2025 that he was not seeking approval of road improvements and the fact that no specific road improvements were actually proposed (including any proposed locations and any specific manner of making improvements), the DCD Decision includes condition of approval 7, which states, “[t]his permit does not authorize any modifications to the existing access road. It is the responsibility of the permittee to obtain any required permits.” Ex. 11. Appellants also focused on documents circulated by the Applicant and others regarding a potential road improvement project in 2023, specifically a “higher cost” proposal for Twana Way improvements. These discussions did not come to fruition, however. The neighbors did not agree to any road maintenance or road improvement project. Appellants also argued that additional studies should have been required by DCD of the Applicant, specifically to address the location of Twana Way in a landslide hazard area. Appellants’ position is that the reports prepared by The Stratum Group are not “geotechnical reports” required under the critical areas code (JCC 18.22.540(4), JCC 18.22.905 and JCC 18.22.945) for “land disturbing activity” or “activity undertaken on land” within a landslide hazard area. JCC 18.22.200(1). However, such reports are required when review is triggered under the critical areas code; it was not. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 6 OF 52 As set forth in the findings of fact and conclusions of law below, the Hearing Examiner determines that Appellants did not meet their burden of proving the SCUP Decision is unsupported by substantial evidence or constitutes error of law. The Applicant did not submit any application for, and did not otherwise propose specific road improvements to Twana Way. The weight of the evidence supports a determination that use of Twana Way, as is, will not result in any adverse impacts to the shoreline, or to the public health, safety and welfare, provided the Applicant complies with all conditions of approval set forth in the SCUP Decision and with the two additional conditions of approval of this Decision. Mere use of Twana Way by construction vehicles does not trigger critical areas review under JCC 18.22.200(1). As conditioned herein, the Hearing Examiner finds and concludes that the SCUP Decision approving the Application will be consistent with the critical areas, shoreline buffers and ecological protection no net loss and mitigation regulations in JCC 18.25.270(2), critical areas and shoreline buffer regulations in JCC 18.25.270(4), will not result in cumulative impacts consistent with JCC 18.25.270(3), and will meet all shoreline conditional use permit criteria in JCC 18.25.590(2), and criteria applicable to all conditional uses in JCC 18.40.530. Therefore, the Hearing Examiner DENIES the Appeal and AFFIRMS the SCUP Decision with MODIFICATIONS. I. PROCEDURAL FINDINGS AND CHRONOLOGY 1. Jefferson County held a pre-application meeting with the Applicant on October 25, 2022, consistent with JCC 18.25.640. Ex. 02, p. 2; Ex. 03, pp. 71-79. 2. The Applicant submitted an application for an administrative shoreline conditional use permit, and revisions thereto on May 18, 2023, November 16, 2023 and July 8, 2024 for construction of a single-family home in the Natural environment. Exs. 01-03; Ex. 12, 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 7 OF 52 p.2. The submitted site plan shows the proposed home is approximately 3,800 square feet. Ex. A- 01, p. 67. The Applicant previously submitted applications for Site Development Review, Buildability Analysis and for Legal Lot of Record on December 2, 2022. Ex. 03, pp. 55-63. The permit number assigned for the Application is SDP2023-00020. The Application is supported with copies of recorded Notice to Title of Geotechnical Report dated June 1, 2023 (Ex. 03, pp. 80-83), approved septic permit dated November 20, 2023 (Ex. 03, pp. 84-88), determination of ordinary high water mark (OHWM) dated November 11, 2022 (Ex. 03, pp. 27-29), and a copy of a biologist report and survey showing setbacks relating to a Type Ns seasonal stream, emailed on January 20, 2023 (Ex. 03, pp. 30-54). The Application is also supported by a cumulative impacts analysis report (Ex. 08, Attachment F), and a Stormwater Management Plan. Ex. 03, pp. 20-26. 3. The County determined the proposed project is exempt from review under the State Environmental Policy Act (“SEPA”), RCW Chapter 43.21C. Exs. 11-12. 4. The County provided public notice of the Application in accordance with JCC 18.40.150(2) and JCC 18.40.190(2) and (3), and accepted public comment on the Application per JCC 18.40.220. 5. DCD approved the Application in an SCUP Decision dated April 10, 2025, subject to eleven (11) conditions of approval. 4 Ex. 11; JCC 18.40.270. A Staff Report, dated April 10, 2025, prepared by Donna Frostholm, Jefferson County Associate Planner outlines 4 Two recommendations for additional permit conditions were presented by Planner Frostholm at the open record appeal hearing: 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. Ex. 8, Attachment F, page 58. The Applicant agreed to both of these conditions. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 8 OF 52 Findings related 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). Ex. CA-02; Ex. 12. 6. Appellants filed an appeal of the Permit to the Jefferson County Hearing Examiner on April 23, 2025 in accordance with JCC 18.40.330(2). Ex. CA-01. 7. Appellants filed a timely Motion for Summary Judgment on June 27, 2025 with supporting declarations and exhibits. The Motion requested the Hearing Examiner to reverse and remand the Permit to DCD with instructions to evaluate potential impacts to the shoreline environment caused by the Applicant’s use of Twana Way as a construction haul route, and resulting from any widening and re-grading work on Twana Way. Exs. CA-03 and CA-11. The Applicant and Jefferson County submitted briefing and declarations in opposition to the Motion on July 7, 2025. Exs. CA05 through CA10. Appellants filed a Reply in Support of the Motion and supporting declaration on July 8, 2025. Exs. CA11-CA12. 8. The Hearing Examiner entered an Order on Appellants’ Motion for Summary Judgment on July 11, 2025, denying the motion on the grounds that genuine issues of material fact existed. 9. Consistent with JCC 18.40.230, public notice of the hearing date on the Appeal was posted on July 7, 2025 and mailed notice was sent on July 3, 2017. Exs. 15-16. The notice included a link to attend the hearing via Zoom, a link to view the case file, and contact information for the project planner, Donna Frostholm. Id. 10. The originally scheduled date for the hearing on the appeal was July 17, 2025 at 10:30 a.m. The Hearing Examiner opened the hearing on that date and continued the hearing to 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 9 OF 52 September 8-9, 2025. Additional mailed notice of the continued hearing date was mailed to property owners within 300 feet of the Property. Ex. 16. 11. The Hearing Examiner conducted a pre-hearing conference with the parties on July 17, 2025 and entered a Pre-Hearing Order on July 23, 2025. 12. The Hearing Examiner conducted a site visit to the subject Property and to view conditions of Twana Way on August 23, 2025, followed by a site visit memorandum dated August 26, 2025. 13. The Hearing Examiner presided over a four-day hearing on the Appeal on September 8-9, 2025 and September 29-30, 2025. The hearing was held in a hybrid format (in person and online via Zoom) on September 8-9, 2025, and was held solely online via Zoom on September 29-30, 2025. 14. Review of the Appeal was conducted pursuant to JCC Chapter 2.30, and the Jefferson County Hearing Examiner Rules of Procedure (“RoP”) dated October 15, 2019. The appeal hearing was conducted as an open record hearing as required by JCC 2.30.090. Public comment and testimony was permitted. However, no members of the public attending the hearing provided any comment or testimony at the hearing. 15. On day 3 of the 4-day hearing, Appellants narrowed the scope of issues to be considered, removing their objections to the Applicant’s proposed residential construction, which includes the septic system, stormwater management, aesthetics and cumulative impacts associated with the proposed residential construction. 16. All witnesses presented testimony under oath. 17. All exhibits submitted by the parties were entered into the record without objection and have been considered by the Hearing Examiner in this appeal. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 10 OF 52 18. The appeal hearing closed on September 30, 2025. The record was left open until October 14, 2025, for submission of written closing arguments by the parties’ attorneys. By stipulated agreement, the parties requested, and the Examiner approved, an extension of the deadline for closing arguments to October 20, 2025. 19. The parties submitted final legal arguments on October 20, 2025. 20. The following exhibits comprise the record on the appeal: 00 Exhibit Log 01 Forms (11/07/23) Supplemental Application Shoreline CUP 02 Site Plan and Stormwater (06/25/24) 03 Case Documents (06/26/24) 04 Application Form (06/25/24) 05 Revised Site Plan and Stormwater (08/21/24) 06 Comment Received (10/08/24) 07 Geologist Response (10/11/24) 08 Response to Additional Information (01/30/25) 09 Geologic Assessment for Twana Way (03/13/24) 10 Telegin Law Comments (03/27/25) 11 Permit (Decision appealed) (04/10/25) 12 Staff Report (04/10/24) 13 Notice of Public Hearing (07/03/25) 14 Geotechnical Report (03/27/24) 15 Affidavit of Public Hearing 16 Notice of Public Hearing 17 Affidavit of Posting Appellant’s Exhibits A-01 Declaration of Telegin and exhibits thereto A-02 Miller Report 2008 NW Watershed A-03 Tarboo Fish Survey NW Watershed A-04 Twana Way Photographs A-05 DiMaggio LUPA Petition A-06 Assignment of Trial or other hearing date A-07 Notice of Appearance A-08 Stipulated Order of Dismissal A-09 RBLD 2024 A-10 Twana Way Emergency Vehicle Access A-11 Schembs Resume A-12 Cedzich Resume A-13 Slope Characteristics Layout A-14 Slope Characteristics Layout 2 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 11 OF 52 A-15 Slope Stability and Landslides Coastal Atlas A-16 GeoResources Technical memo A-17 GeoResources Rebuttal Memo A-18 Appellants’ Revised Witness and Exhibit List A-19 Road images A-20 Rathvon emails A-21 Malick email A-22 “Please to Phil” email A-23 Shold Excavation estimate Jefferson County Exhibits5 CA-01 Appeal Statement CA-02 Staff Report: Proposed Findings, Conclusions and Recommendations CA-03 Appellant’s Motion for Summary Judgment CA-04 Declaration of Bryan Telegin in Support of Appellant’s Motion for Summary Judgment and exhibits thereto CA-05 Jefferson County’s Response Brief in Opposition to Appellant’s Motion for Summary Judgment CA-06 Declaration of Attorney Ariel Speser in Support of Jefferson County’s Response Brief in Opposition to Appellant’s Motion for Summary Judgment and exhibits thereto CA-07 Applicant’s Response to Appellant’s Motion for Summary Judgment CA-08 Declaration of Richard Rathvon in Opposition to Appellants’ Motion for Summary Judgment and exhibits thereto CA-09 Declaration of Dan McShane, L.E.G. in Opposition to Appellant’s Motion for Summary Judgment CA-10 Declaration of Larry Dean Richert in Opposition to Appellants’ Motion for Summary Judgment CA-11 Reply in Support of Appellant’s Motion for Summary Judgment CA-12 Second Declaration of Bryan Telegin and exhibits thereto CA-13 Notice of Appearance CA-14 Pre-Hearing Order CA-15 Final Pre-Hearing Order CL-17 SDP 2023-00020 Notice of Application CL-18 197 001 19 Easement CL-19 Statutory Warranty Deed April 27, 1971 CL-20 Dabob View Tracts Survey 278886 CL-21 Easement 278885 CL-22 357791 192 Deed CL-23 544674 2009 Deed 5 DCD submitted Exhibits 01 through 17, including the Staff Report issued April 10, 2025, and “County Legal” documents CL 17 through 26. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 12 OF 52 CL-24 585230 2014 Deed CL-25 587436 2014 Deed Corrected CL-26 Email from McHugh 02/17/25 with attached email from Malick 02/12/25 CL-27 Jefferson County Pre-Hearing Brief Applicant Exhibits RR-11 PRE2022-00031 Written Narrative RR-12 PRE2022-00031 EPH Comments RR-13 Aesthetics RR-14 Malick Resume RR-15 Regan McClellan CV RR-16 Twana Way Road Improvements RR-17 Considerations for possible Twana Way Road Repair and Maintenance RR-18 Twana Way Road Repair and Improvements RR-19 Twana Way RR-20 Road improvement RR-21 Introduction RR-22 Introduction (4) RR-23 Beach access notes Twana Rd, Quilcene RR-24 Twana Road beach access RR-25 Twana Road beach access RR-26 Twana Road beach access RR-27 Dabob property offer follow up (redacted) RR-28 SDP2023-00020 Notice of Application RR-29 08/14/25 Rathvon Residence Design Analysis w/Exs. A and B RR-30 Malick Declaration RR-31 Jefferson Twana Rathvon Road Gradients 08/15/25 RR-32 Rathvon’s Avalon on Twana Way RR-33 Oliver easement hose RR-34 Oliver easement RR-35 Oliver easement rocks RR-36 Sign dogs RR-37 Sign grade RR-38 Von Bargen materials truck August 2025 RR-39 LRFDBDS-10 Table of Contents RR-40 AASHTO LRFD Bridge Design Specifications – 9th Edition RR-41 WSDOT Geotech RR-42 Jefferson Twana Way Geology Map RR-43 Rathvon Rebuttal Exhibit List RR-44 Prehearing Brief RR-45 Construction vehicles accessing Hawley Property (photos) RR-46 USDA Soil Map Unit Description RR-47 Map of Quilcene 7.5-Minute Quadrangle, Jefferson County, WA 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 13 OF 52 Also included in the record: Final Rathvon Order on Summary Judgment Motion Hearing Examiner Site Visit Memorandum (08/26/25) Notices of Appearance and Association of Counsel for Applicant Rathvon Parties of Record (chart) Notice of Appearance for Jefferson County (07/11/25) Witness and Exhibit List for Appellant (07/11/25) Jefferson County Exhibit List (07/11/25) Jefferson County Witness List (07/11/25) Exhibit and Witness List Applicant (07/11/25) Appellant’s Closing Brief (10/20/25) Jefferson County Closing Brief (10/20/25) Applicant Post-Hearing Brief (10/20/25) To view the case file, including application and staff report, go to www.coJefFerson.wa.us — Services — Laserfiche web portal (username and password is: public) — Board of Commissioners — Boards and Committees — Hearing Examiner — 2025 — 071725 Rathvon 21. This Decision is the final decision of Jefferson County on the Application and the Appeal. RoP 6.7. Any party may request reconsideration or clarification of the Decision in accordance with provisions in the RoP and JCC 2.30.130. 22. This Decision shall be forwarded to the Washington State Department of Ecology for final action on the Application in accordance with WAC 173-27-130. The Department of Ecology’s decision will be appealable to the state Shoreline Hearings Board. II. FINDINGS OF FACT ON MERITS OF APPEAL After reviewing the record and hearing testimony, the Hearing Examiner makes the following Findings of Fact: A. Characteristics of Applicant’s Property and Surrounding Properties 1. Applicant’s Property is within the Natural shoreline designation. The Applicant’s proposed single-family residence is a conditionally allowed use in the Natural shoreline environment, requiring issuance of an shoreline conditional use permit. JCC 18.25.500(3)(c). 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 14 OF 52 2. Access to the Property is solely via Twana Way, a narrow, unpaved private road, portions of which are steep and within a mapped landslide hazard area. Ex. 06, p.9; JCC 18.22.510(1)(b). There is only one property on Twana Way beyond the subject Property; Twana Way dead ends at that location just south of the Property, which is the last developed parcel along Twana Way. 3. The Applicant’s Property is private land. There are no easements or other agreements that give the public legal access to the shoreline on the Applicant’s property. Exs. C- 18; C-19; and C-21. The Applicant’s proposed home will be minimally visible from Dabob Bay 4. The subject Property is approximately 5.47 acres in size and is in an area that is heavily vegetated and forested. Ex. 03. Two parcels adjacent to the subject Property are currently used as single-family residences. B. Dabob Bay 5. Dabob Bay is 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. 06, p. 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. A-03, p. 1; see also Hearing Day 4 at 01:10:212 (Jill Cooper testimony). 6. According to a report entitled “Landslide Hazard and Erosion Susceptibility Assessment, Tarboo-Dabob Bay, WA” prepared by M2 Environmental Services for Northwest Watershed Institute by Daniel Miller, dated January 21, 2008,6 “[t]he physical and biologic 6 The purpose of the slope stability study was to aid decision-makers in considering expansion of existing Natural Area Preserves and creation of new Natural Resource Conservation Areas. Ex. A-02, p. 1. The report cautions that, “[f]or mapping over this extent (e.g., thousands of acres), we must rely primarily on information from remotely sensed data and existing maps, i.e., aerial 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 15 OF 52 environment of the bay is finely attuned to the frequency and magnitude [of landslides and erosion, triggered by high intensity storms during which sediment is delivered to stream channels that carry the sediment to the bay in accompanying 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. A-02, p. 1. 7. The report states that, “[m]ud and silt are an integral part of floodplain and estuarine environments, and the organisms that use these environments are well adapted to the inputs of mud and silt that have been carried by flood flows to the bay throughout the ten thousand years since the last ice sheet retreated. They are not well adapted, however, 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. 8. The Hearing Examiner finds this report (Ex. A-02) to be of limited relevance to the Appeal for the following reasons: (1) the report was prepared based on high-level (covering thousands of acres) mapping and does not include any recommendations regarding use of and/or improvements to roads within the watershed, including Twana Way; (2) while the report states that “road building” may increase sediment delivery downstream, the report does not include any photography, and topographic and geologic maps. Two basic approaches have been developed for slope-stability mapping at this scale: terrain mapping, which seeks to identify potentially unstable landforms, and computerized analyses using Geographic Information Systems (GIS), which seek correlations between landslide locations and topographic, geologic, vegetation, and other attributes for which data may be available.” Ex. A-02, p. 5. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 16 OF 52 relevant conclusions concerning use of existing roads in the watershed7; and (3) the Applicant is not proposing to construct a new road or to make any improvements to Twana Way. C. Characteristics of Twana Way 9. No party disputes the fact that Twana Way is more than 200 feet from the shoreline of Dabob Bay. The majority of Twana Way runs through a mapped moderate landslide hazard area (a critical area) per JCC 18.22.510(1). Some of these areas exhibit the environmental attributes defined in JCC 18.22.510(1)(b)(ix) (slopes of 40% or steeper and with a vertical relief of 10 or more feet); see Exs. A-13; A-14.8 Twana Way winds through a series of steep hillsides and ravines and is described as a “primitive road,” possibly used previously as a logging road. The road itself is narrow and steep along several stretches; locals have referred to Twana Way as the “Goat Trail.” Ex. 06, p. 9; Hearing Day 1 at 4:48:29 (DiMaggio testimony); see also Ex. A- 04 (photographs taken by Mr. DiMaggio); Ex. A-01, p. 8 (Attachment at 3) (Applicant stating that “[much of the road surface is about ~8’ to 9’ wide … but there are several spots that are more narrow (~7 to 7-1/2’). 7 The report finds that soils in the area are generally permeable, except for discharge from impermeable surfaces (roads) and further states that surface runoff is rare, concluding that, “as long as there is vegetative cover, there is little potential for surface erosion.” Id. p. 7. 8 Testimony was focused in great detail as to whether Twana Way is within an area that includes environmental attributes of a “landslide hazard area” per JCC 18.22.510(1)(b)(ii) and/or 18.22.510(1)(b)(ix). The Applicant and County asserted that the maps are a screening tool only and that slopes must be examined and affirmatively demonstrated to be unstable or prone to sliding. E.g. Hearing Day 1 at 2:13:01-2:30:08; Hearing Day 3 at 1:01:17. Appellants disagreed with this interpretation. As addressed in the Conclusions of Law below, even after giving deference to the County’s interpretation of its own code, the Examiner determines that Appellants’ interpretation is legally correct. However, the Examiner determines that the Applicant is not proposing any “land disturbing activity, development or activity on land” that is subject to review under the County’s critical areas code. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 17 OF 52 10. Twana Way is a pre-existing, narrow dirt and gravel road that provides access to the Property. As far back as 1969, an easement recorded under document number 203763 refers to “following the general course of an existing road” and states the road easement is permanent and perpetual. Ex. CL-18. This road existed before the Rathvon family purchased their property. Ex. A-01 at Ex. I; Ex. 8 at 7-15; Ex. CL-18; Ex. CL-19. There is no dispute regarding Applicant’s right to use the road for access to the Property. The original easement referenced in the various deeds to the Applicant’s Property provides access via a 30-foot easement along Twana Way, as well as an obligation to share in the road’s maintenance. Ex. CL-18; see also Exs. CL-19 and CL- 22-25. 11. The watershed that encompasses Twana Way has been mapped by the Northwest Watershed Institute (“NWI”) as susceptible to surface erosion. Ex. A-02, p. 34 (Figure 10). 12. Three streams cross Twana Way and then discharge to Dabob Bay further downhill. Two of those streams have been mapped by the County as depicted at page 114 of Ex. A-01. See also Ex. A-01, p. 5 (Attachment at 1; copy of Jefferson County critical areas map sent by Greg Ballard); Hearing Day 1 at 05:12:22 (testimony by John DiMaggio that he is personally familiar with streams mapped by the County). A third type Ns stream runs just south of the Applicant’s Property and under Twana Way in a culvert. Ex. 03, p. 54. Twana Way is outside the stream and stream buffer. 13. Twana Way has been consistently used and maintained for ingress and egress to the properties along the road for decades. No evidence of landslides above or below Twana Way was introduced. Both the Applicant and Appellants have been accessing their properties and using the pre-existing road without issue. Appellants installed landscaping and rocks on and near that portion of Twana Way that crosses his property. The purpose of the rocks is to demarcate 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 18 OF 52 the edge of the road to prevent vehicles from inadvertently exiting the road into a ravine. An unnamed/unknown property owner has installed and/or maintained “water bars” across Twana Way in a number of locations, presumably for the purpose of moving stormwater across the road to the downhill slope and ravines. Testimony Day 2 at 5:29:34 and 5:50:35. 14. Applicant introduced evidence during the hearing that several neighbors have undergone some level of construction using Twana Way “as is” for construction vehicle access (Ex. RR-38 and RR-45). Appellants introduced photographs showing the current condition of Twana Way and its “shoulder” following recent use by the Von Bargen and Hawley construction vehicles. Ex. A-18, pp. 2, 5, 14, 15, 18, 19 and 24. These images show tire tracks outside the gravel road surface, dirt banks on the uphill side of the road having been ground down, and dislodged chunks of earthen material from the uphill slope. Id. They also show crushed vegetation on the downhill side of the road. Id. Appellants asserted that Twana Way “[h]as been widened because of that traffic,” and that the road “absolutely” needed to be widened to accommodate the trucks. Testimony Day 4 at 3:13:05 and 3:39:20. 15. Appellants assert that construction vehicles are causing sections of the road to be covered in fine dust which they believe may wash downhill during rain events. Ex. A-18, pp. 1, 2, 3, 8, 10, 23; Testimony Day 4 at 2:55:53 and 3:15:42. Appellants argue, but did not present any evidence to support their assertion, that dust and sediment will ultimately make its way downhill to Dabob Bay, harming the sensitive aquatic environment. Ex. 06, p. 18. Appellants also argue that the recent alteration to some “water bars” across Twana Way by other construction vehicles may exacerbate the risk of erosion and sediment transport to Dabob Bay. Appellants did not present any competent evidence to support this argument. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 19 OF 52 16. Appellants assert that use of Twana Way by construction vehicles meets the definition of a “land disturbing activity” under JCC 18.10.120 and, thus, that regardless of whether road improvements are proposed by the Applicant, mere use of Twana Way by the Applicant’s construction vehicles is subject to review under the County’s critical areas code. Appellants’ previous expert, David Parks of Crescent Environmental, opined that DCD erred by failing to require the Applicant to assess Twana Way to determine if it can bear the heavy loads anticipated during truck use without failing and delivering sediment to downstream waters. Ex. 06, p. 18; Hearing Day 2 at 1:43:41 (Mr. Cedzich agreeing with Mr. Parks’ assessment).9 In the conclusions of law below, the Hearing Examiner concludes that mere use of the road, even by heavy vehicles, is not subject to critical areas review. 17. Appellants argue that damage to Twana Way has already been caused by other construction vehicles for other projects (unrelated to the Applicant or the subject Property), and that such damage threatens to interfere with pedestrian use of Twana Way to reach the waters of Dabob Bay for recreational purposes. They state that the dust and rock covering Twana Way has made it more difficult to walk on the road. See, e.g., Hearing Day 3 at 2:05:56; see also Hearing Day 3 at 1:47:00, 3:27:54 and 5:19:29. Therefore, Appellants assert that when the Applicant undertakes his construction project, problems related to pedestrian use of Twana Way will only increase. The Hearing Examiner finds that this speculation is not competent evidence. 9 Appellants did not provide their own geologic hazard assessment of the slope stability of Twana Way. On the other hand, Applicant’s experts opined, based on their in person inspections and analysis of the road and slopes, that neither the home site nor Twana Way pose landslide risks. Appellants’ expert witness Mr. Cedzich based his conclusions on mapping only. Exs. A-16 and A-17. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 20 OF 52 18. To address Appellants’ concerns regarding impacts to Twana Way by Applicant’s neighbors’ construction, which arose with specificity for the first time during the appeal hearing, a new condition of approval to which the Applicant agreed is included with this Decision, requiring the Applicant to restore Twana Way to its pre-construction condition following completion of the Applicant’s single-family home construction. Testimony Day 4 at 00:19:46; see also Ex. RR-2 and Ex. 08, p. 58. The burden is on the Applicant to demonstrate compliance with this condition of approval. Testimony Day 4 at 00:20:44. Per JCC 18.25.720, “[w]hen permit or permit exemption approval is based on conditions, such conditions shall be satisfied prior to occupancy or use of a structure or prior to commencement of a nonstructural activity.” D. Single-Family Home Application 19. The Applicant proposes construction of a single-family home and garage, to be situated approximately 160 feet from the ordinary high water mark (OHWM), outside of the 150- foot shoreline buffer, with a 10-foot building setback. Ex. 12, p. 3. The home will be situated within the existing mature forest, resulting in a barely visible footprint. Ex. 01. 20. The Applicant’s 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 Applicant’s home has been designed to fit in with its surroundings. Exs. RR-3; RR-29. The Applicant’s 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, p. 2. 21. The home has been designed so that a minimum of the home is exposed on both the landward and waterward side of the home. Ex. RR-29, p. 2. The home will be placed at the maximum shoreline setback, and the Applicant has not requested any exceptions from the 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 21 OF 52 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 22. The submitted site plan depicts all components of the Applicant’s proposal and the affected site. Ex. 05. Stormwater will be naturally dispersed into the native forest, with no change or increased impact. Id. Stormwater resulting from impervious surfaces will disperse naturally. Id. 23. The Staff Report analyzed how the project will “avoid impacts to the shoreline environment to the extent possible” and concludes that “no adverse impacts to the shoreline are expected,” provided the Applicant follow best management practices for erosion control. Ex. 12 pp. 6-7. Conditions of approval are included in the SCUP Decision to ensure no sediment or pollutants will reach Dabob Bay. Ex. 11, p. 8. 24. Because the Applicant’s proposal is to construct a private, single-family residence on his private Property, there will not be a substantial detriment to the public interest. Ex. 11, p. 1; Ex. 12, p. 7. E. Did the Applicant Propose Improvements to Twana Way? 25. Significant testimony was provided and exhibits were referenced regarding the question of whether Applicant proposed to alter or make improvements to Twana Way for the purpose of facilitating construction of a single-family home on the Property. E.g. Ex. A-01 (Exhibits E, J, K, M, N and P), and Exs. 7-8. 26. One of the primary bases for Appellants’ objections to the DCD Decision, and for their belief that road improvements were proposed and not analyzed by the County, is found in a document Mr. Rathvon created in October 2023 to facilitate a neighborhood discussion about a 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 22 OF 52 possible formal road maintenance program for Twana Way. Ex. RR-16 (illustrative examples of a “possible range of possible road repairs and improvements”); Ex. RR-17 (invitation to “a neighborhood gathering to discuss possible repair and maintenance of our road”). Appellants assert that the Applicant’s 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, Hearing Day 3 at 1:45-1:46, 2:00 (DiMaggio); Hearing Day 3 at 4:58-5:02, 5:20-5:21 (Oliver); Ex. RR-16 at 5, 9-11; Ex. RR-17. 27. Appellants submitted a comment letter on the Application, which letter included a figure of the Higher Cost Option from Mr. Rathvon’s October 2023 presentation. Ex. 6, p. 9. Appellants alleged that Mr. Rathvon intended to significantly improve[]” Twana Way and commented that “[i]f this is still the applicant’s plan, then that should be included and evaluated as part of the project application, which may in turn trigger SEPA review.” Id., p. 10. 28. Appellants object to the Higher Cost Option because they are concerned that if it was implemented, new rock and gravel on Twana Way would make the road unwalkable. Hearing 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), Hearing Day 3 at 2:49-2:50 (DiMaggio); Hearing 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. A-20, p. 5. 29. Appellants believe that the Applicant only put forward the neighborhood road maintenance proposal to further construction of their single-family home. Hearing Day 3 at 5:09 (Oliver); Hearing Day 3 at 1:57-1:58, 2:50-2:51 (DiMaggio). Appellants criticize what they perceive to be untruthful statements and the Applicant’s lack of being forthright as to the purpose 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 23 OF 52 of bringing neighbors together to discuss improvements to Twana Way – his intent to develop the Property with a single-family home and desire to improve access for construction vehicles. 30. The neighbors did not agree on a neighborhood road maintenance proposal and the proposal never went forward. Ms. Oliver admitted that the road proposal went “nowhere.” Hearing Day 3 at 5:15, 5:25 (Oliver testimony); see also Hearing Day 4 at 1:28 (VonBargen testimony). 31. None of the permit applications or documents submitted by the Applicant described any specific work on Twana Way and the Applicant did not file a permit application for any road work on Twana Way. Ex. 3, pp. 9-16, 55-63, 67-70; Ex. 4. Applicant confirmed to that they “are not proposing to alter or expand the road, including cut and fill activities or removal of trees.” Ex. 8, p. 3. Applicant did not submit any document that indicated the location(s) of any future road improvements or the manner in which such improvements would be made. Applicant stated that he and his experts “have not determined that there is a need to alter Twana Way.” 32. DCD Planner Donna Frostholm testified that the County never received any formal application from the Applicant for road improvements on Twana Way. Hearing 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.” Hearing Day 1 at 1:02. Appellant John DiMaggio also testified that they are “not aware of any formal proposal at the County” for the Applicant to improve Twana Way. Hearing Day 3 at 2:00. 33. When questioned on this matter, Mr. Rathvon repeated his prior written statement to the County that he has no intention of making road improvements to Twana Way. Hearing Day 4 at 3:13-3:14, 4:50- 4:53; Ex. 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 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 24 OF 52 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. Hearing Day 4 at 3:13-3:14, 4:50-4:53. 34. Appellants believe the Applicant is not being truthful about his intent to construct road improvements to Twana Way based in part on the Applicant’s submission of a February 25, 2025 Stratum Group report entitled, “Geologic Hazard Assessment for Twana Way Improvements” Ex. 9. 35. Jefferson County Code Administrator Greg Ballard testified about his personal involvement in this matter. In large part, it involved consulting with Applicant’s team regarding a possible critical area exemption, which was separate from the SCUP application. Code Administrator Ballard testified that, in an abundance of caution, he had asked for additional information regarding slope stability for this limited purpose (Hearing Day 1 at 4:03:10), hence receiving the Stratum Letter dated February 25, 2025. Ex. 9; see also Hearing Day 1 at 04:06:48.000. 36. To the extent the Stratum Group Letter dated February 25, 2025 created confusion regarding any possible “road widening,” this assertion was refuted by the author’ s own testimony. Geoff Malick testified he had misunderstood what was actually being proposed – he assumed road modifications. Regardless, he personally observed the road and testified that he has no concerns for its overall stability in its current condition. 37. Based on the weight of the evidence, the Hearing Examiner finds that the February 25, 2025 Stratum Group report does not constitute a proposal by the Applicant to widen and/or re-grade Twana Way. This report was submitted to DCD in response to the County’s request for a “brief statement [from the Applicant’s geotechnical engineer] regarding the stability of the Twana Way roadway.” Ex. RR-30. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 25 OF 52 38. In what appears to have been a “telephone game” series of conversations, real estate agent and consultant Terry McHugh passed along the County’s request to the Applicant’s principal geologist, Dan McShane at the Stratum Group, who then tasked Geoff Malick with conducting the review because Mr. Malick was within the area and could investigate in person. Hearing Day 2 at 5:19-5:20; Hearing Day 3 at 00:17-00:18. Mr. Malick testified that his sole understanding of the Applicant’s project was Mr. McHugh’s email (Ex. RR-30 at 6), and a brief conversation with Mr. McShane. Hearing 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 the Applicant’s proposed residential construction project. Id. 39. 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. 09 at 2. In his declaration (Ex. RR-30), and in his hearing testimony (Hearing Day 4 at 4:17, 4:21), Mr. Malik explained that he did not conduct any analysis of construction vehicle sizes or turning radii and that his assumption regarding potential road-widening was made in an effort to be over-inclusive in his geotechnical analysis. He stated that he has “no reason to believe that road improvements would be required for construction access to the Applicant’s property.” Ex. RR-30, ¶8. 40. The weight of the evidence demonstrates that, while the Applicant and/or their agents and consultants explored the possibility of proposing road improvements to Twana Way, and Terry McHugh requested that a note be added to the building permit to generally allow road improvements (Ex. A-22), no specific proposal for the County’s review, including location of road improvements or how such road improvements would be constructed, ever was submitted. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 26 OF 52 41. The weight of the evidence supports a determination that the Applicant’s construction of their single-family residence is neither dependent on, nor intertwined with, any improvements on Twana Way. 42. If the Applicant had, in fact, proposed road work on Twana Way, and such work was required for access to the Property as an integrated and non-severable element of the proposed single-family development and a necessary part of the plan to construct a residence or for the proposed home to function, DCD would have been required to review such work as part of its review of the SCUP Application. As addressed in more detail in the findings and conclusions below, the Applicant did not propose road work on Twana Way and the DCD Decision specifically does not authorize any road work on Twana Way. Ex. 11. F. Will Use of Twana Way As-Is Impact the Shoreline? 43. Appellants’ geotechnical experts opined on their preferred means of geotechnical analysis for new road improvements that were not proposed. Ex. 6 at 16; Exs. A-16 and A-17. Mr. Cedzich presented testimony concerning potential impacts of road improvements to Twana Way. Ex. A-16 (purpose of memorandum is to present our professional review and findings “for the proposed roadway improvements along Twana Way”). Mr. Cedzich not performed a geologic hazard assessment in Jefferson County (Testimony Day 2 at 2:10), he made no independent evaluation of Twana Way’s geotechnical stability (Testimony Day 2 at 2:27-2:30), and he did not visit the site (Testimony Day 2 at 2:27-2:30). 44. Mr. Cedzich presented opinion testimony on the studies he believed should be conducted prior to approval of road improvement construction (Testimony Day 4 at 5:14-5:16). Neither Mr. Cedzich nor Crescent Environmental opined that road improvements were required for the Applicant to construct a single-family home on the Property. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 27 OF 52 45. Geologist Dan McShane, who has personal knowledge and experience working in Jefferson County, testified that he does not have any concerns about the road stability. 46. The weight of the evidence shows that Twana Way is geotechnically stable and may be used safely, in its current condition, for construction access to the Applicant’s Property. Hearing Day 4 at 00:24:07 (Frostholm). If necessary, minor maintenance to Twana Way will be governed by the County’s critical areas regulations and may fall within an exemption under JCC 18.22.230(4)(c)). 47. 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. Hearing Day 4 at 4:53. 48. To refute Appellants’ argument that road improvements are, in fact, required to access the Property for construction vehicles, Mr. Richert and Mr. Miller testified that there are a variety of construction means and methods that can be used to minimize impacts on the road, such that road modifications or improvements are not necessary. 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.” Hearing Day 4 at 1:56- 2:03. Mr. Miller testified that he has driven Twana Way himself and that he can “get various vehicles down there [Twana Way] in its current condition.” Hearing Day 4 at 2:21. Mr. Miller testified he could use a smaller cement mixer to deliver concrete to the Applicant’s property. Hearing 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. Hearing Day 4 at 2:23-2:24. 49. No compelling evidence supports a determination that the Applicant needs to modify Twana Way to build their home or that the Applicant’ s project will inevitably require 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 28 OF 52 improvements to Twana Way. The Applicant can complete construction of the home without necessitating road improvements. The evidence does not support a determination that DCD erred by improperly deferring review of a necessary element of the proposed construction project. 50. No persuasive evidence was presented that use of Twana Way by construction vehicles has caused, or will cause slope stability issues. No evidence was presented that Applicant’s construction-related vehicles will be unable to navigate Twana Way in its current condition to access the Property. In fact, the weight of the evidence shows that construction vehicles have successfully used Twana Way to build and expand at least eight homes, as recently as September 2025. Exs. RR- 31, RR- 38, and RR-43 (photographs of construction vehicles on Twana Way); Hearing Day 4 at 1:18-1:23 (VonBargen), 2:20-2:24 (Miller), 2:00-2:03 (Richert); see also Exs. CA-08; RR- 38; RR-45. No persuasive evidence was offered that improvements to Twana Way are necessary for the Applicant to build their single-family home or that construction traffic will undermine the road’s stability. 51. Appellants did not present compelling evidence to show that impacts to the shoreline environment will result from the Project, or that road improvements are necessary to construct the Applicant’s single-family home. The County properly excluded Twana Way from its Decision because the Applicant did not propose any improvements to Twana Way and no road improvements are necessary to build the Applicant’s home. 52. Applicant’s witnesses, 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. Hearing Day 2 at 5:00-5:01, 5:26-5:28, 5:51 (McShane); Hearing Day 3 at 4:17-4:19 (Malick); see also Exs. 9, RR-30. Based on his personal evaluation of Twana Way, Mr. McShane confirmed that Twana Way is wide at the culvert near the Applicant’s property, and there is no evidence of 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 29 OF 52 runoff or sediment transport to the shoreline environment or Dabob Bay. Hearing Day 2 at 5:08- 5:11. 53. DCD determined that Appellants’ allegations regarding potential discharge of material into stream(s), which may then flow into Dabob Bay, were speculative and not relevant because the Applicant did not submit a proposal to alter Twana Way. DCD properly evaluated potential impacts of the Applicant’s use of Twana Way (if not improved or otherwise modified) for construction equipment access. Potential impacts of use of Twana Way, expressed by Appellants, are hypothetical and speculative. 54. Substantial evidence supports DCD’s determination that the Rathvon single- family residence SCUP will have no significant impacts on the shoreline environment. 55. As addressed in more detail in the findings and conclusions below, the Applicant’s mere use of Twana Way for construction-related traffic does not constitute a “land disturbing activity” under JCC 18.10.130. DCD did not err in failing to require additional studies and documentation from the Applicant and was not required to perform critical area review of mere use of a road that has existed and been used for decades without incident, including for the construction of all other existing homes in the area. DCD properly interpreted and applied its SMP and critical areas code and did not err in not requiring the Applicant to submit an analysis of whether Twana Way “can bear the heavy loads anticipated during truck use without failing.” G. DCD’s Review of the Application 56. DCD reviewed the Application and required additional submittals and information over a nearly three-year period before issuing the SCUP Decision. Ex. 3 at 9-16, 55- 63, 67-70; Ex. 4. The County put the Application out for public comment, reviewed those comments, and acted upon them by requesting additional information from the Applicant. Id.; 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 30 OF 52 Exs. 6 and 8. DCD’s review involved an iterative process, requiring the submission and consideration of multiple technical reports, through which the County ensured it had sufficient information to confirm the Application met all required criteria. 57. DCD required, and the Applicant submitted, complete responses to SCUP application questions. The Applicant 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. Ex. 3 at 9-16, 55- 63, 67-70; Ex. 8; Ex. 12 at 1. Some of these analyses were prepared at the request of the County in response to public comments on the Application. 58. During its review of the Application, DCD requested and obtained additional information from the Applicant on multiple occasions. DCD requested even more information from the Applicant in November 2024 regarding road improvements, construction staging, additional geotechnical analyses, and cumulative impacts in response to comments made by Appellants. Ex. A-01 at Ex. D. Planner Donna Frostholm met and corresponded via email with Mr. Rathvon to obtain clarification as to the scope of the proposal and whether it included improvements to Twana Way. Ex. A-01 (Ex. D). DCD staff considered Appellants’ comments, requested additional geotechnical information on the stability of Twana Way (Ex. A-01 at Ex. D, at 1), which was provided (Ex. 9), and concluded that Twana Way could be used in its current condition for construction of the proposed home (Ex. A-01 at Ex. I, at 1).10 DCD staff also conducted a site visit on January 17, 2025 to examine Twana Way itself. Ex. A-01 at Ex. I. 10 The County presented testimony to clarify why additional information was requested for both the shoreline permit regarding the residence, and, separately, for a critical areas code consultation on road maintenance. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 31 OF 52 59. The classification of The Stratum Group reports was debated at the hearing. Appellants questioned whether those reports were considered geotechnical reports under JCC 18.22.540. DCD considered the reports provided by Stratum (Geological Hazard Assessment for Proposed Septic System dated February 15, 2022 (Ex. 14), Comments in response to public comments from Telegin Law and Crescent Environmental dated October 11, 2024 (Ex. 7), Geological Hazard Assessment Update dated November 14, 2024 (Ex. 8, Attachment E), and Geological Hazard Assessment for Twana Way Improvements dated February 25, 2025 (Ex. 9)) to be sufficient to support the findings in the Staff Report (Ex. 12). Ms. Frostholm testified that she did not request a geotechnical report because the Applicant is proposing a single-family home, not a road improvement project. Hearing Day 1 at 1:41-1:43. 60. Substantial evidence supports the determination that DCD 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 (Ex. 8, Attachment E), DCD relied on JCC 18.22.540(5) to determine the updated report should be accepted. Geologist Dan McShane and partner Geoff Malick both personally visited the property, assessed slope stability, and walked Twana Way. In contrast, Mr. Cedzich 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. Most of Mr. Cedzich’s experience is in Canada or the southern United States. Hearing Day 2 at 1:14, 3:12-3:15; Ex. A12 61. DCD visited the site to examine Twana Way (Ex. A-01 at Ex. I, asked the Applicant if they intended to improve Twana Way as part of their project (Ex. 8 at 3), and requested additional information on the road’s geotechnical stability based on comments received from Appellants’ consultant, Crescent Environmental (Ex. 8 at 4). That information was provided 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 32 OF 52 to DCD and supplemented at the hearing. (Es. 7 at 13; Ex. 8 at 19; Ex. 9 at 2; Exs. RR-31, RR- 42, RR- 44, and RR- 45; McShane: Hearing Day 2 at 4:14-6:17, Hearing Day 3 at 00:09-1:34; Malick: Hearing Day 3 at 3:55-4:52. 62. The Stratum Group submitted five geotechnical reports on behalf of the Applicant—three during the permitting process and two as part of the hearing. Mr. McShane’s first geologic hazard assessment for the Applicant’s single-family home project was conducted in February 2022. Ex. 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. 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: 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. 63. 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. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 33 OF 52 64. Appellants did not make any of the Crescent Environmental reports authors available to testify during the hearing. Mr. Cedzich testified that he did not speak to anyone at Crescent Environmental when he prepared his report. Hearing Day 2 at 2:27-2:30. 65. Mr. Cedzich first testified that he had no particular project in mind when he completed his analysis. Hearing Day 2 at 2:19- 2:20. On rebuttal, Mr. Cedzich then testified that his analysis was based on the Higher Cost Option that Mr. Rathvon had discussed in his October 2023 presentation to neighbors. Hearing Day 4 at 5:14-5:15. Mr. Cedzich analyzed the idea of future road work that was neither proposed by the Applicant, nor discussed with any specificity. The basis for Mr. Cedzich’ s opinion is that The Stratum Group’ s report failed to comply with JCC 18.22.530(4)(b)11 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. The AASHTO standard referenced applies to bridges and retaining walls constructed for bridges. See Ex. RR- 31. 66. Appellants’ experts did not provide their own geologic hazard assessment of the slope stability of Twana Way, and did not controvert with evidence (other than mere mapping) the conclusions of Mr. McShane or Mr. Malick that neither the home site nor Twana Way pose landslide risks. Appellants’ experts did not complete their own site analysis. 67. DCD weighed three geotechnical reports from The Stratum Group, based on on- the-ground analysis from geotechnical engineers with experience in Western Washington, and 11 JCC 18.22.530(4)(b) does not exist in the County code, and Mr. Cedzich did not provide the correct citation. Hearing Day 2 at 3:16-3:20. Section 7.6.4 of the WSDOT GDM also does not exist. See Ex. RR-30. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 34 OF 52 one report from Crescent Environmental that provided a critique of The Stratum Group’s work. DCD afforded The Stratum Group’s reports more weight. 68. Planner Frostholm proposed that the Hearing Examiner add a new condition to the SCUP Decision to address the road issue: requiring the applicant to restore the road to its existing condition post-construction. Hearing Day 4, 00:11-00:12. The Applicant agreed to this proposed condition. Hearing Day 4 at 32-33. Mr. DiMaggio testified whether this condition would address his concerns. Hearing Day 4 at 2:57-2:58. Appellants’ initial public comment letter on the SCUP application also requested similar mitigation. Ex. 6 at 11. 69. In their closing brief, Appellants requested that the proposed condition be clarified to require the Applicant to document the complete, unaltered, undamaged condition of the road (both surface and subsurface) prior to the start of construction so that compliance can be accurately and meaningfully assessed when he is done. The Hearing Examiner finds that surface documentation is possible and shall be required via photographic evidence. However, it is unclear what Appellants are requesting with respect to documentation of subsurface conditions of the road, particularly given the primitive condition of the road. It is further unclear what subsurface damage Appellants are requesting to ensure will be repaired. Therefore, documentation of subsurface conditions is not required. 70. Based on the mitigation proposed in Ms. Cooper’ s Cumulative Impact Analysis, Planner Frostholm recommended the following also be added as a permit condition to address concerns about potential 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. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 35 OF 52 • 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. 8 at 58; Hearing Day 4 at 00:12-00:14. The Applicant agreed to this condition, as well. 71. DCD exercised its authority under JCC 18.25.270(3)(b) and required the Applicant to submit a cumulative impacts analysis that addressed aesthetic impacts and an analysis of the geologic conditions of Twana Way. Ex.. A-01 at Ex. D; Ex. 9. The Applicant also submitted renderings of their proposed home. Ex. A-01 at Ex. Q, p. 1; Exs. RR-3; RR-29. 72. Ms. Jill Cooper, from Marine Surveys and Assessments, reviewed the Applicant’s proposal and conducted a cumulative impacts analysis that was submitted to DCD for review. Hearing Day 4 at 1:05; Ex. 8 at 59. Ms. Cooper, a senior ecologist with 15 years of experience, testified that the Applicant’s project will not have negative impacts to sensitive species or critical habitat areas, if all regulations are followed. Hearing Day 4 at 00:49. She concluded that the Applicant’s project would not have any significant adverse cumulative impacts. 73. Ms. Cooper testified that the Applicant’s project was similar to all of the surrounding parcels, which had been developed as single- family homes since the 1970s. Hearing Day 4 at 00:54-00:55; Ex. 8 at 52 (Fig. 2). The remaining undeveloped properties in the area have 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 36 OF 52 been protected from development by the Washington Department of Natural Resources or Northwest Watershed Institute. Ex. 8 at 55. Ms. Cooper testified that “ it’s unlikely that there’s going to be a whole bunch more future development, 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 Applicant’s project would not have impacts on sensitive species or critical habitat areas. Hearing Day 4 at 1:04-1:05 74. Ms. Cooper reviewed the proposed project footprint in relation to relevant buffers for critical habitat, streams, and shorelines. Hearing Day 4 at 48:00; Ex. RR- 8. Ms. Cooper concluded that because the project was located outside of the critical habitat, stream, 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. Hearing Day 4 at 00:48-00:50; Ex. 8 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. Hearing Day 4 at 1:09-1:11. Appellants did not provide any evidence to the contrary to rebut this testimony. 75. DCD’s review was thorough and was completed pursuant to typical permit review and processes. Substantial evidence in the record supports a determination that DCD satisfied its permitting obligations by conducting a detailed review of the Application and by requesting, reviewing and considering additional information where needed in order to complete review. DCD had ample and sufficient information to make an informed decision on the Application and 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 37 OF 52 to find that the Project, as conditioned, will comply with SMP criteria in JCC 18.25.630(12) and (16) and the SMA, RCW 90.58.050 and RCW 90.58.140. Ex. 12 76. Approval of the SCUP Decision, as conditioned, will ensure that construction of the Applicant’s single-family home will not result in adverse shoreline impacts. Conditions 4, 5, 8, and 9 of the SCUP Decision require the Applicant 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. 11 at 1-2. 77. DCD analyzed Twana Way’s geotechnical stability and its ability to be used safely, in its current condition, for construction access to the Applicant’s Property. Testimony Day 4 at 00:24:07 (Frostholm). Conditions of approval, as amended in this Decision, are appropriate to mitigate any impacts from use of Twana Way. DCD staff weighed the evidence before them when they issued the DCD Decision; DCD staff believe the Applicant has been truthful in his representations and will fulfill his legal obligations. DCD relied on what it determined to be credible analyses, rather than conjecture, to support its SCUP Decision. 78. Appellants offered no technical studies, scientific evidence, or any evidence that that contradicts DCD’s findings that the Applicant’s project is consistent with the SMA and SMP. Appellants believe that DCD did not analyze the 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. Ex. 3 at 9-16, 55-63, 67-70; Ex. 4; Ex. 8. Appellants’ concerns about geological hazardous areas and use 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 38 OF 52 of construction vehicles on Twana Way are sufficiently addressed in the conditions of approval, as amended in this Decision. III. CONCLUSIONS OF LAW 1. The Jefferson County Hearing Examiner has jurisdiction over this Type II land use appeal. JCC 18.40.330 and JCC 18.40.280(3). The procedures governing Hearing Examiner hearings are set forth in the Hearing Examiner Code, JCC Chapter 2.30, and the Hearing Examiner RoP. The Appeal has been reviewed by the Examiner in accordance with applicable Code and RoP provisions, including but not limited to JCC 18.25.690(2) and JCC 18.40.330. 2. Per JCC 18.25.610(2), the Hearing Examiner is vested with the authority and responsibility in this Appeal as follows: (a) Approve, condition, or deny shoreline substantial development permits, variance permits and conditional use permits after considering the findings and recommendations of the administrator; (b) Decide local administrative appeals of the administrator’s actions and interpretations, as provided in this program and the county Unified Development Code; (c) Consider shoreline substantial development permit, variance permit and conditional use permit applications and administrative appeals of the administrator’s actions on regular meeting days or public hearings; (d) Review the findings and recommendations for permit applications or appeals of the administrator’s actions and interpretations; (e) Approve, approve with conditions, or deny substantial development permits, variance permits and conditional use permits; (f) Conduct public hearings on appeals of the administrator’s actions, interpretations and decisions; (g) Base all decisions on shoreline permits or administrative appeals on the criteria established in this master program; and (h) At his or her sole discretion, require any project proponent granted a shoreline permit to post a bond or other acceptable security with the county, conditioned to assure that the project proponent and/or his or her successors adhere to the approved plans and all 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 39 OF 52 conditions attached to the shoreline permit. Such bonds or securities shall have a face value of at least 150 percent of the estimated development cost including attached conditions. 3. Appellants have standing to appeal the Decision as a party of record. JCC 18.40.280. Appellants submitted the Appeal in accordance with JCC 18.40.330(2)(b). 4. Public notice of the Appeal was provided in compliance with JCC 18.40.280(4) and JCC 18.40.230. Members of the public were provided an opportunity to comment on the Appeal and to participate in the public hearing consistent with state and local requirements. 5. Chapter 18.25 JCC constitutes the County’s Shoreline Master Program (“SMP”), compliance with which is intended to ensure consistency with the state Shoreline Management Act, RCW Ch. 90.58 (“SMA”), and Washington Department of Ecology shoreline regulations in WAC Chapter 173-27. 6. JCC 18.25.590 sets forth conditional use permit criteria for shoreline conditional use permit applications. It states: (1) The purpose of a conditional use permit is to allow greater flexibility in administering the use regulations of this program in a manner consistent with the policies of RCW 90.58.020. In authorizing a conditional use, special conditions may be attached to the permit by the county or the Department of Ecology to control any undesirable effects of the proposed use. Final authority for conditional use permit decisions rests with the Department of Ecology. (2) Uses specifically classified or set forth in this program as conditional uses and unlisted uses may be authorized, provided the applicant/proponent can demonstrate all of the following: (a) That the proposed use will be consistent with the policies of RCW 90.58.020 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. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 40 OF 52 (d) That the proposed use will not cause adverse effects to the shoreline environment in which it is to be located. (e) That the public interest suffers no substantial detrimental effect. (3) In the granting of all conditional use permits, consideration shall be given to the cumulative environmental impact of additional requests for like actions in the area. For example, if conditional use permits were granted for other developments in the area where similar circumstances exist, the sum of the conditional uses and their impacts should also remain consistent with the policies of RCW 90.58.020 and should not produce a significant adverse effect to the shoreline ecological functions and processes or other users. A. Standard of Review and Burden of Proof 7. Appellants have the burden of proof in this Appeal.12 As to the material factual issues in this Appeal, the burden of proof is by a preponderance of the evidence. RoP 5.14(j)(iii). Issues of law are subject to a de novo standard of review. Id. 8. To prevail on an error of law, Appellants must establish that the County’s SCUP Decision is “an erroneous interpretation of law.” RoP 5.14(j)(iii); Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 837-38, 256 P.3d 1150 (2011). The County’s interpretation of its own code is entitled to deference, and should be accorded “great weight where the statute is within the agency’s special expertise.” E.g. Cornelius v. Wash. Dep’t of Ecology, 182 Wn.2d 574, 585, 344 P.3d 199 (2015). Jefferson County DCD’s legal interpretations of the County’s SMP is given substantial weight because the interpretations falls within the department’s specialized expertise. See 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). In addition, DCD’s administration of 12 While Appellants are correct that the initial burden of proof with respect to DCD’s review of the Application was on the Applicant (JCC 18.25.670), Appellants carry the burden in this Appeal to prove the SCUP Decision is not supported by substantial evidence and/or is based on error of law. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 41 OF 52 the SMA through the SMP, may be afforded deference. Solid Waste Alternative Proponents v. Okanogan County, 66 Wn. App. 439, 442, 832 P.2d 503 (1992). 9. The “substantial evidence” standard requires that the Examiner view the evidence, and reasonable inferences therefrom, in the light most favorable to the DCD, as the fact-finding entity. RoP 1.1(q). 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). 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). RoP 1.1(l) defines “Preponderance of the evidence” as, “after considering all the evidence on the record and/or at the hearing that the proposition on which that party has the burden of proof is more probably true than not true.” The Hearing Examiner may consider new evidence to address the issues raised on Appeal to determine whether there is additional legal and factual support for the County’s SCUP Decision. RCW 36.70B.020(3). 10. 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). A “technical error” is not sufficient to reverse or remand a decision. Jones v. Town of Hunts Point, 166 Wn. App. 452, 462-63, 272 P.3d 853 2011). /// 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 42 OF 52 B. Shoreline Management Act and Shoreline Master Program 11. The Shoreline Management Act, RCW 90.58.010, et seq., regulates development within 200 feet landward of most lakes, rivers and marine waters of the State of Washington. In general, only those developments within the 200-foot shoreline jurisdiction are subject to regulation under the SMA, and the local Shoreline Master Program. E.g. Weyerhaeuser Co. . King County, 91 Wn.2d 721, 736 (1979). 12. The SMA provides that the Act is to be “liberally construed to give full effect to the objectives and purposes for which it was enacted,” including protection of the shoreline environment. RCW 90.85.900; Merkel v. Port of Brownsville, 8 Wn. App. 844, 848-49 (1973). 13. Under the Jefferson County SMP, JCC Chapter 18.25, construction of a single- family residence in the Natural shoreline environmental designation requires the issuance of a shoreline conditional use permit. JCC 18.25.220; JCC 18.25.500(3)(c). The SMP requires “[a]ll shoreline use and development to be carried out in a manner that avoids and minimizes adverse impacts on the shoreline environment.” JCC 18.25.270(1)(a). 14. JCC 18.25.500(1) sets forth policies for residential development in the shoreline environment. Of note, although residential use is not water-dependent, it is a preferred use of the shorelines when such development is planned and carried out in a manner that protects shoreline functions and processes to be consistent with the no net loss provisions of the SMP. JCC 18.25.500(1)(a). 1) Twana Way Road Work is Not Part of a Full, Unified and Integrated Project 15. Review under the SMA may extend to elements outside of the SMA’s 200-foot jurisdictional limit where there is some integral linkage between the outside elements and other project elements that are within the SMA’s jurisdictional boundary. When a proposal includes 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 43 OF 52 physical elements both within and outside of the 200-foot shoreline jurisdiction, the local government should review the “full, unified, and integrated physical project” in order “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). 16. 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. Hearing Examiner’s Order on Appellants’ Motion for Summary Judgment (Order on Summary Judgment) at 4. 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. 17. 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). 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 44 OF 52 18. As a matter of law and as supported by substantial evidence in the record, the Applicant did not propose new development or improvements to the pre-existing Twana Way as a “unified part” of the single-family home development project. 19. Appellants did not carry their burden of proving that the Appellant did, in fact, propose road work on Twana Way, or that road work on Twana Way is required for access to the Property as an integrated and non-severable “element,” and a necessary part of the plan to construct a residence or for the proposed home to function. 20. The Examiner concludes that road work on Twana Way is neither required for construction of the single-family home nor integrated with and non-severable from the project. As a matter of law, DCD did not err in reviewing the Application as proposed, or in its decision to condition approval of the SCUP Decision with statement that road work on Twana Way is not approved. Ex. 11, condition 7. DCD did not err as a matter of law in concluding that, because no road work on Twana Way was proposed, analysis of potential impacts of road work on the shoreline is not required. The Examiner upholds DCD’s interpretation of the scope of the Applicant’s proposal. 21. DCD did not err in concluding that the Applicant’s compliance with conditions of approval will ensure that the shoreline environment will not be adversely affected by unpermitted road improvements. Per JCC 18.25.720, “[w]hen permit or permit exemption approval is based on conditions, such conditions shall be satisfied prior to occupancy or use of a structure or prior to commencement of a nonstructural activity.” The SCUP Decision, as modified by the two (2) additional conditions of approval in this Decision, requires the Applicant to comply with the critical areas ordinance by stating that and by requiring that the Applicant obtains additional permits for any future modifications to Twana Way. Ex. 11, Condition 7. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 45 OF 52 2) Applicant’s Use of Twana Way is Consistent with the SMA and SMP 22. Substantial evidence supports DCD’s determination that Twana Way is geotechnically stable and may be used safely, in its current condition, for construction access to the Applicant’s Property. 23. The Hearing Examiner concludes that DCD properly exercised its authority as the arbiter of the weight to be placed on conflicting expert opinions. 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”). 3) Type of Report Submitted by Applicant 24. Appellants allege that the County erred by failing to require the Applicant to submit a geotechnical report per JCC 18.22.540(4)(c). Appellants’ assertions are based on the presumption that he Applicant is proposing to construct improvements on Twana Way; therefore, Appellants assert, a geotechnical report should have been required because road construction requires design engineering recommendations. 25. JCC 18.22.540(5) requires DCD to determine what report(s) the County accepts and which one(s) the County rejects. Because no road improvements were proposed by the Applicant, DCD did not err as a matter of law in relying on the reports submitted by The Stratum Group in issuing the SCUP Decision. 26. Substantial evidence supports the conclusion that DCD properly completed its due diligence in reviewing the professional reports provided to satisfy SCUP review requirements. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 46 OF 52 DCD’s reliance on the information provided by The Stratum Group was factually and legally sound. DCD’s reliance on the information provided by the Applicant’s experts at The Stratum Group does not constitute error of law. Substantial evidence supports the County’ s reliance on the information provided by the Applicant 4) Consistency of Application with SMA and SMP 27. Substantial evidence supports the conclusion that the Application was properly submitted, reviewed for completeness and supported by all required and requested reports in accordance with JCC 18.40.530 (approval criteria for all conditional uses) and JCC 18.22.590 (shoreline conditional use permit criteria). The SCUP Application was correctly reviewed by DCD as a Type II permit, consistent with JCC 18.25.620(3). DCD followed all applicable County code requirements for processing a SCUP application. 28. Substantial evidence supports the conclusion that DCD considered, and adequately addressed through conditions of approval in the SCUP Decision potential adverse environmental effects that the Applicant’s proposed single-family home may have on the shoreline environment, as required by JCC 18.25.590(2). 29. Substantial evidence supports the conclusion that the Applicant’s proposed development and compliance with conditions of approval of the SCUP Decision, as modified in this Decision, will result in no net loss of ecological functions and processes, as required by JCC 18.25.590(a)-(b). 30. Substantial evidence supports the following conclusions: (a) DCD included conditions of approval in the SCUP Decision which were “deemed necessary to assure that the development will be consistent with the policy and provisions of the [SMA] and this program as well as the supplemental authority provided in Chapter 43.21 RCW as applicable, consistent with 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 47 OF 52 JCC 18.25.690; (b) the SCUP Decision includes measures to mitigate adverse impacts on shoreline functions and processes; such mitigation will not have a significant adverse impact on other shoreline uses fostered by the policies of the SMA. JCC 18.25.270(2)(c), (e); and (c) DCD engaged in mitigation sequencing review of the Application consistent with JCC 18.25.270(2)(d). 31. Substantial evidence supports the conclusion that the Applicant’s project, as approved and conditioned in the SCUP Permit, will not cause adverse effects to the Natural shoreline environment in which it is located and is consistent with shoreline conditional use criteria. JCC 18.25.220; JCC 18.25.590; RCW 90.58.020; see also JCC 18.40.530 (approval criteria for all conditional uses). 32. Substantial evidence supports the conclusion that the Applicant’s proposed single-family home is consistent with the policies of RCW 90.58.020 and the SMP. 33. Substantial evidence supports the conclusion that the Applicant’s proposed single-family home will not interfere with normal public use of the shoreline. JCC 18.25.590(2)(b). 34. Substantial evidence supports a conclusion that DCD properly and appropriately analyzed incremental and cumulative impacts in accordance with JCC 18.25.270(3)(b). 35. Substantial evidence supports the conclusion that the Applicant’s proposed single-family home will be compatible with other permitted uses in the area. JCC 18.25.590(2)(c). 36. Substantial evidence supports the conclusion that DCD properly analyzed the potential for adverse environmental effects of the proposed development on the shoreline environment in which the proposed home will be located. JCC 18.25.590(2)(d). Appellants did not meet their burden of proving that DCD erred in its determination that the Applicant’s project is not likely to cause significant impacts to the shoreline environment. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 48 OF 52 37. Substantial evidence supports the conclusion that the public interest will not suffer any detrimental effect as a result of construction or use of the proposed single-family home. JCC 18.25.590(2)(e). C. Critical Areas Regulations 38. Critical areas are regulated in Jefferson County pursuant to JCC Chapter 18.22. According to the purpose statement in JCC 18.22.500: The purpose of this article is to reduce risks to human life and safety and reduce the risk of damage to structures and property from geologic hazards, to allow for natural geologic processes supportive of forming and maintaining fish and wildlife habitat, and to regulate and inform land use and planning decisions. It is recognized that the elimination of all risk from geologic hazards is not feasible to achieve but the purpose of this article is to reduce the risk to acceptable levels 39. Twana Way is within a mapped geologically hazardous area per JCC 18.22.510 and subject to the standards of Article V of the County’s critical areas code, Chapter 18.22 because it is mapped as a high or moderate geologically hazardous area as a landslide hazard area.13 JCC 18.22.510(2)(b) further refines the definition of landslide hazard areas to “include any areas susceptible to landslide because of any combination of bedrock, soil, slope (gradient), slope aspect, structure, hydrology, or other factors,” including: (ii) Areas where all three of the following conditions occur: (A) Slopes are steeper than 15 percent; (B) Hillsides intersecting geologic contacts with a relatively permeable sediment overlying a relatively impermeable sediment or bedrock; and (C) Spring or groundwater seepage. and 13 Per JCC 18.10.120, “Landslide hazard areas” has the same meaning as in WAC 365-190- 030(10). 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 49 OF 52 (ix) Areas with a slope of 40 percent or steeper and with a vertical relief of 10 or more feet, except areas composed of bedrock. 40. Nothing more than a demonstration that the factors listed in JCC 18.22.510(1)(b) are present needs be established to reach a conclusion that an area is within a landslide hazard area. While on-site inspection of actual conditions may be made, there is no provision in the critical areas code that allows a mapped landslide hazard area to be “removed” from a portion of the area mapped so as to exclude review of “land disturbing activity, development or activity on land” that is subject to review under the County’s critical areas code (JCC 18.22.200(1)) or to excuse the requirement for submission of a geotechnical report pursuant to JCC 18.22.540(4) and JCC 18.22.905 for purposes of critical areas review. Even after providing deference to DCD’s interpretation of its own code, the Examiner disagrees with its interpretation of JCC 18.22.510(1)(b) as a mere “screening tool.” 41. Per JCC 18.22.520, activities within a landslide hazard area that are regulated include any development activity or action requiring a project permit. Because the Applicant is not proposing any road improvements to Twana Way, the Applicant is not proposing any development activity or action requiring a project permit within a landslide hazard area. Therefore, protection standards set forth in JCC 18.22.530 do not apply. The SCUP Decision does not authorize alteration of a critical area or critical area buffer. JCC 18.22.200(2). The Applicant was not required to submit a geotechnical report, per JCC 18.22.540(4)(c), to support the SCUP Application for a proposed single-family home. DCD did not err in relying on the conclusions in The Stratum Group reports, weighed against the competing evidence presented by Appellants. JCC 18.22.540(4)(c); see also JCC 18.22.905 (when special reports are required). 42. The Hearing Examiner concludes that, even under a liberal construction of the County’s critical areas code (JCC 18.22.110 and .120), Appellants’ argument that mere 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 50 OF 52 construction vehicle use of Twana Way should be considered to be “land disturbing activities,” defined in JCC 18.10.120 as, “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. Land disturbing activities include, but are not limited to, clearing, grading, filling, and excavation. Compaction that is associated with stabilization of structures and road construction shall also be considered a land disturbing activity. Vegetation maintenance practices are not considered land- disturbing activity,” is not legally supportable. 43. The SCUP Decision is supported by substantial evidence and does not constitute error of law with regard to compliance with the County’s critical areas code, Chapter 18.22 JCC. 44. In preparing and issuing this Decision, the Hearing Examiner reviewed both the record as it existed before DCD and 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). 45. The Hearing Examiner has authority to affirm the SCUP Decision, grant the Appeal or modify the Decision. RoP 6.1(c)(4) and (6). The Hearing Examiner also may remand the SCUP Decision to DCD for further fact-finding and decision-making consistent with the Examiner’s Decision. RoP 6.1. The Hearing Examiner determines there is no basis on which to remand the SCUP Decision. 46. The Hearing Examiner finds and concludes that Appellants have not met their burden of proving that the SCUP Decision was issued contrary to substantial evidence in the record and/or constitutes error of law. 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 51 OF 52 47. With the additional conditions of approval set forth in this Decision, the Application will be consistent with the critical areas, shoreline buffers and ecological protection no net loss and mitigation regulations in JCC 18.25.270(2), critical areas and shoreline buffer regulations in JCC 18.25.270(4), will not result in cumulative impacts consistent with JCC 18.25.270(3), and meets all shoreline conditional use permit criteria in JCC 18.25.590(2), and criteria applicable to all conditional uses in JCC 18.40.530. DECISION Based on the foregoing Findings of Fact and Conclusions of Law, the Jefferson County Hearing Examiner DENIES the Appeal and AFFIRMS the SCUP Decision, File No. SDP2023- 00020, with MODIFICATIONS, subject to the following additional conditions of approval: 1. Upon completion of the approved single-family home development, Applicant shall repair Twana Way to its pre-construction condition, including but not limited to replanting damaged vegetation along the side of the road and repairing any damaged and/or filled “water bars” to their previously functioning condition. To ensure compliance with this condition of approval, the Applicant shall submit photographs to DCD to document the complete, unaltered, undamaged condition of Twana Way prior to the commencement of construction activities on the Property. 2. Applicant shall comply with the best management practices outlined in the Cumulative Impacts Assessment Report issued January 24, 2025: 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 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 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION - PAGE 52 OF 52 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. SO ORDERED this 3rd day of November, 2025. STEPHANIE MARSHALL Jefferson County Hearing Examiner