HomeMy WebLinkAboutHX02 ORDER of Continuance and Case Management Orders 072225
ORDER OF CONTINUANCE
AND CASE MANAGEMENT FOR
FILE NO. SUB2025-00012 – P. 1
Jefferson County Hearing Examiner
1820 Jefferson St./P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9180
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Before Hearing Examiner
Tom Ehrlichman
BEFORE THE HEARING EXAMINER
FOR JEFFERSON COUNTY
In the Matter of the Unit Lot Subdivision ) Project File No. SUB2025-00012
Application Submitted by )
)
HABITAT FOR HUMANITY OF ) ORDER OF CONTINUANCE AND
EAST JEFFERSON COUNTY ) CASE MANAGEMENT ORDERS
)
Parcel No. 901-023-007 (Port Hadlock) )
____________________________________)
The Hearing Examiner held an open-record pre-decision hearing on the above-referenced
matter at 11:00 a.m., Tuesday, July 15, 2025, in the Chambers of the Board of County
Commissioners, 1820 Jefferson Street, Port Townsend, WA 98368. The Examiner having
jurisdiction over this matter hereby enters orders governing the next stage in this proceeding.
I. INTRODUCTION/BACKGROUND
After hearing testimony under oath and admitting exhibits into the record on July 15,
2025, the Examiner continued the hearing and indicated he would memorialize the reasons for
the continuance in this order. Parties at the hearing discussed a tentative schedule. This order
changes that schedule. Among other things, it converts the contemplated August 14, 2025
continued hearing date into a status conference where the hearing date will be set.
Parties appearing at the July 15, 2025 hearing and offering testimony were the
Department of Community Development; the Applicant, Habitat for Humanity of East Jefferson
County; and the public. No tribes or state or local agencies appeared.
At the hearing, the Examiner invited public testimony. All present desiring to speak had
an opportunity to do so. The Hearing Examiner then closed the public testimony portion of the
hearing, inviting the submittal of follow-up written comments by the public.
This order memorializes the following:
§ The written record remains open;
ORDER OF CONTINUANCE
AND CASE MANAGEMENT FOR
FILE NO. SUB2025-00012 – P. 2
Jefferson County Hearing Examiner
1820 Jefferson St./P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9180
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§ The public testimony portion of the hearing is closed (subject to any motions for cause to
submit additional testimony);
§ Certain exhibits admitted provisionally at the hearing will be admitted upon
supplementation by the Applicant and/or DCD;
§ Exhibits 19 and 22 admitted provisionally at hearing are declined and are not part of the
record. This order provides an explanation and requests for missing information;
§ The testimony at the continued hearing of certain officials is requested, or alternatively
written comments are requested;
§ A timeline is set for submittals of additional information by the Applicant and DCD; and
§ A status conference will be held on August 14, 2025 to determine whether the requested
information has been provided, at which time the continued hearing will be set in
consultation with the calendars of the parties.
Taken as a whole, this order lays out the Examiner’s view on the status of the record to date for
purposes of issuing a decision under the criteria for preliminary plat approval under RCW
58.17.110 (requiring adequate provisions for public health, safety and welfare, including roads
and fire protection). No part of this order shall be considered a final decision in this matter.
II. ORDER OF CONTINUANCE
The Hearing Examiner hereby orders that the single, open-record public hearing in the
above-referenced cause is continued indefinitely, to a time to be determined at the status
conference. This order requests the submittal of evidence prior to the scheduling of the
continued hearing. Under this order, when the requested evidence is submitted and the
availability of identified witnesses is confirmed at the status conference, the Examiner will set a
date for the continued hearing and the Clerk will issue electronic notice of the continued hearing
two weeks in advance of the continued hearing. Absent the granting of a motion to the contrary
for cause, the Examiner intends to limit testimony at the continued hearing to issues identified in
this order and to rebuttal testimony and cross-examination of witnesses.
III. SCHEDULE
Key dates for filings and the date of the status conference are as follows. Filings shall be
by electronic filing with the Clerk by 4:00 p.m., with simultaneous electronic service provided to
DCD and the Applicant:
ORDER OF CONTINUANCE
AND CASE MANAGEMENT FOR
FILE NO. SUB2025-00012 – P. 3
Jefferson County Hearing Examiner
1820 Jefferson St./P.O. Box 1220
Port Townsend, WA 98368
(360)385-9180
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1.Friday, August 1, 2025 –
Witness Lists, Requested Exhibits, and Legal Memoranda
§Deadline for DCD and/or Applicant filing of modifications to admitted
exhibits requested herein.
§Deadline for filing and exchange of witness lists to be presented by any party
at continued hearing. Lists shall identify the witness and disclose the scope of
the testimony. Expert witnesses shall be identified and curricula vitae filed.
§Deadline for filing and service of legal memoranda requested by the Hearing
Examiner below related to “sewer availability” and related topics.
2.Tuesday, August 12, 2025 – New Exhibits, Reports, Comments
§Deadline for filing and service of any new exhibits, reports or agency
comment letters received.
3.Thursday, August 14, 2025, 10:00 a.m. – In-Person Status Conference
§In-Person Status Conference Before the Hearing Examiner confirming status
of the record, availability of witnesses, and, if possible, setting time for
continued hearing and any new exhibit deadlines.
§The status conference will be open to the public but no hearing will take place
and no testimony will be taken.
IV.THE LEGAL FRAMEWORK FOR REQUIRING A COMPLETE RECORD
This order is designed to ensure that a complete record is presented during the hearing, as
the cornerstone for the Examiner’s final decision on the preliminary plat application. No
decision on the merits has been reached. Instead, as explained in detail below, upon further
examination the Examiner finds that the record to date is insufficient to support findings and
conclusions of approval or approval with conditions. The options are to finish the hearing now
and deny the project without prejudice, or to continue the hearing to allow completion of the
hearing record based on the current application. The statutory scheme for the open-record public
hearing process underpins this exercise allowing completion of the record prior to a Hearing
Examiner decision.
The Regulatory Reform Act of 1995 created a statewide system for consolidated hearings
involving a project permit decision. RCW ch. 36.70B. The statute defines the primary role of
hearing officer as the person in local government who creates the record of the permit decision:
ORDER OF CONTINUANCE
AND CASE MANAGEMENT FOR
FILE NO. SUB2025-00012 – P. 4
Jefferson County Hearing Examiner
1820 Jefferson St./P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9180
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(3) "Open record hearing" means a hearing, conducted by a single hearing body or officer
authorized by the local government to conduct such hearings, that creates the local
government's record through testimony and submission of evidence and information,
under procedures prescribed by the local government by ordinance or resolution.
RCW 36.70B.020(3).
Jefferson County adopted ordinances and Hearing Examiner Rules confirming that the
Hearing Examiner is the local official responsible for developing the record for review and
decision on preliminary plat applications. Thus, under the state and local statutory schemes, the
purpose of the County’s “open record hearing” before the Hearing Examiner in this case is to
allow the Applicant, the County, affected agencies and tribes, and the public to present facts and
evidence that the Examiner includes in the record as the basis for findings and conclusions in the
written decision. RCW 36.70B.020(3).
The statute also makes clear that the record developed by the Hearing Examiner forms
the basis for review of the local government’s decision if an appeal is filed. The reviewing court
will not hold an evidentiary trial; discovery is disfavored. RCW 36.70C.120(1).
V. CALL TO AUGMENT ADMITTED EXHIBITS
At the July 15, 2025 hearing, the Examiner admitted 28 exhibits presented by DCD, as
listed in the Clerk’s Exhibit List, along with additional submittals at hearing. Upon examination
of the record to date, the Examiner requests that the parties address the following evidentiary
issues on the schedule identified above:
(a) Exhibit 30 – Consolidated List of Persons Receiving Notice of Hearing.
Exhibit 30 was admitted and is a compilation listing by DCD of all persons and addresses
receiving notice of the public hearing. DCD is invited to provide a sworn declaration for this
listing, as directed by Hearing Examiner Rule 2.3(b).
(b) Exhibit 07 – Determination of Adequate Potable Water.
The Examiner admitted Exhibit 07 provisionally with a note that the record did not yet
demonstrate the basis for issuance of this water availability certificate. DCD and the Applicant
are each invited to provide the total water demand estimates and per unit quotient for the project
submitted to Quimper (PUD No. 1 of Jefferson County) as the basis for the request for the
certificate. The Examiner recommends inclusion of estimates for fire flow volumes as
referenced by the Fire Marshal’s Office in the proposed Exhibit 22.
ORDER OF CONTINUANCE
AND CASE MANAGEMENT FOR
FILE NO. SUB2025-00012 – P. 5
Jefferson County Hearing Examiner
1820 Jefferson St./P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9180
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(c) Exhibit 01 – Staff Report Recommended Conditions
DCD is invited to supplement the staff report: (a) to clarify that the condition in the
SEPA MDNS is also necessarily a preliminary plat condition for subdivision approval, as that
condition may be modified depending on the outcome of the WSDOT inquiries described below;
and (b) to expand upon and provide specific recommended fire safety conditions, based on the
final review of the proposed plat by the Fire Marshal requested below.
(d) Exhibit 21 – Public Works Review.
DCD, Public Works, and the Applicant are each invited to provide evidence that Public
Works reviewed and commented upon the updated Parametrix Transportation Impact Analysis in
Exhibit 09 (June 20, 2025) (TIA) and the Applicant’s offer at hearing to install a four-way stop at
the intersection of SR 19 and Highway 116. Alternatively, witness testimony from John Fleming
or other representative from Public Works shall be provided at the continued hearing to confirm
Public Works’ review of the updated TIA and the proposed state-highway mitigation.
(e) New Exhibit Requested – Official Preliminary Plat.
The record needs a clear indication of what comprises the official request for preliminary
plat approval in a single exhibit, dated and submitted with the signature of the project licensed
Civil Engineer. The Examiner suggests retention of Exhibit 03 (unsigned plat) as is and the
addition of a new exhibit for the signed proposed plat that is the official plat reviewed by the
Examiner. Two 11 x17 sets of that signed official document shall be provided to the Hearing
Examiner’s Office five days prior to the status conference. The Clerk shall assign a new
provisional exhibit number to this new submittal.
VI. EXHIBITS NOT ADMITTED
(a) Exhibit 22 – Fire Marshall Comment Memo.
Admitted provisionally at hearing, the Examiner now declines to admit Exhibit 22 as
submitted. While helpful in identifying which issues might be of concern to the Fire Marshal,
the Examiner finds that it does not verify review by the Fire Marshal. A listing of issues of
general concern, without the Fire Marshal’s recommendation on specific conditions and
verification of plat review, does not provide a basis for findings and conclusions on fire-safety in
a final decision. The Fire Marshal and DCD are invited to submit a replacement Exhibit 22
ORDER OF CONTINUANCE
AND CASE MANAGEMENT FOR
FILE NO. SUB2025-00012 – P. 6
Jefferson County Hearing Examiner
1820 Jefferson St./P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9180
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addressing fire safety for possible admission into the record by the Hearing Examiner. See next
Section VII.
(b) Exhibit 19 – Emails Concerning WSDOT .
Admitted provisionally at hearing, the Examiner now declines to admit Exhibit 19 as
submitted, except for the last page containing the WSDOT recommendation on mitigation for
project impacts at the intersection of SR 19 and Highway 116. The last page shall retain the
designation as “Exhibit 19.” To complete the record, a more complete, updated communication
from WSDOT is needed reflecting review and comment on the adequacy of the Applicant’s
proposed mitigation for state highway impacts and clearly confirming WSDOT’s review of
Exhibit 9 (updated TIA).
VII. REQUEST FOR REPORTS AND OFFICIAL COMMENTS
(a) Request for Applicant Fire Safety Analysis for Preliminary Plat.
The Examiner does not see a narrative by the Applicant in the record providing any
details on compliance with fire safety requirements under state and local law. The Examiner
invites the Applicant to submit into the record a signed report by a qualified fire safety consultant
certifying that the proposed plat layout meets the standard under RCW 58.17.110 with respect to
fire safety, with references to applicable state and local fire code. If a report is filed, the
Applicant shall make the consultant available as a witness at the continued hearing. Given the
configuration of the proposed plat, the Examiner is not inclined to approve the preliminary plat
under RCW 58.17.110 with the proposed staff condition on fire safety. See Exhibit 01,
Condition 17 at 14. A generic condition of that nature puts off the essential safety analysis that
the Examiner has a duty to review in a preliminary plat decision.
(b) Request for Comment From Fire Safety Officials.
(1) East Jefferson Fire and Rescue. The Examiner also requests that the
Applicant and DCD contact Jefferson County Fire District No. 1 and request a signed letter
commenting on the fire-safety report of the Applicant’s fire safety consultant described above.
In the event the Applicant chooses not to retain a consultant and does not submit the requested
report for comment by the Fire District, the Examiner will require the appearance of a District
representative to testify at hearing.
ORDER OF CONTINUANCE
AND CASE MANAGEMENT FOR
FILE NO. SUB2025-00012 – P. 7
Jefferson County Hearing Examiner
1820 Jefferson St./P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9180
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(2) Jefferson County Fire Marshal. The Examiner requests that the Fire
Marshal himself appear to testify at the continued hearing. Alternatively, the Examiner would
accept a written analysis addressed to the Hearing Examiner, signed by the Fire Marshal
certifying that the preliminary plat proposed for approval meets all applicable fire safety
requirements for this proposed use and configuration, citing to the new exhibit described herein
containing the engineer’s signed preliminary plat.
VIII. REQUEST FOR APPLICANT’S MITIGATION OFFER RE STATE HIGHWAYS
At hearing, the Applicant’s representative indicated that they would make a voluntary
mitigation offer of a four-way stop to address WSDOT’s comment in Exhibit 19 (last page)
requiring mitigation of project impacts at the intersection of SR 19 and Highway 116. The
Examiner requests that the Applicant file with the Clerk a written mitigation offer memorializing
the Applicant’s statement at hearing in the form of a proposed condition. The proposed
condition should include an approximate drawing to scale of the Right-of-Way location at the
intersection and the proposed mitigation elements to be constructed. The Applicant’s proposed
condition should also address responsibility for costs and timing for payment and construction,
including the Applicant’s proposal as to whether occupancy of any phases of the project should
be authorized prior to installation of the stop signs.
The Applicant’s proposed condition shall be submitted for review to WSDOT and Public
Works, with a complete copy of the transmittal and its attachments provided to the Clerk for
public review, prior to the continuation of the hearing. The submittal is intended to document
the Applicant’s offer for purposes of preliminary plat approval and is not intended to be an
engineered drawing or an application for construction approval.
In the event the Applicant wishes to forego the offer of a voluntary condition and
requests the conclusion of the hearing without the mitigation offer, the Applicant shall make that
request for hearing and decision clear to the Examiner in a writing filed with the Clerk. If filed,
the request shall be copied simultaneously to WSDOT and Public Works. In that case, the
Examiner intends to call representatives of WSDOT and Public Works as witnesses at hearing.
IX. COMMENTS ON SUBMITTALS AND REPORTS
As noted, the record remains open. Upon the filing of exhibits responsive to the
foregoing sections, the Clerk shall post the exhibits online for access by the public. Exhibit 19
ORDER OF CONTINUANCE
AND CASE MANAGEMENT FOR
FILE NO. SUB2025-00012 – P. 8
Jefferson County Hearing Examiner
1820 Jefferson St./P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9180
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shall retain only the last page of the submitted exhibit. Exhibit 22 shall be removed from the
Clerk’s Exhibit List [a placeholder can be maintained with no exhibit at this time].
X. HEARING EXAMINER REQUEST FOR BRIEFING ON ZONING/SEWER
The Hearing Examiner invites legal briefing and responses on the following questions, on
the timeline1 set forth above:
1. If the Examiner were to issue preliminary plat approval, for an urban subdivision,
what authority allows the Examiner to apply “future urban zoning” instead of the existing rural-
intermediate zoning in place at the time the complete subdivision application was filed? Please
discuss RCW 58.17.033; JCC § 18.19.110; JCC §. 18.19.150(3).
2. The second issue is whether the project can be approved in the standard fashion,
i.e., applying urban zoning, without the use of the special provision in JCC § 18.19.150. Is the
sanitary sewer now “available” to the project within the meaning of Jefferson County Code ch.
18.18 and 18.19 if a sanitary sewer main is present within 200 feet (which is the case here), even
before the pipe becomes operational, thus obviating the need to utilize the special provision in
Section .150? If not, what citations to law support that answer?
3. It seems clear that JCC § 18.19.150 authorizes DCD to accept and process this
application for urban development before the operability of the sewer system is available. It is
also clear that this section does not mention the Hearing Examiner and that the Hearing
Examiner Office is not a division of DCD. JCC § 2.30.020. Does the authority under
JCC § 18.19.150 extend to the Hearing Examiner and authorize issuance of a final decision on a
subdivision application prior to the operability of the sanitary sewer system? Does any
legislative history before the County Commissioners address the applicability of Section .150 to
Hearing Examiner decisions?
XI. STATUS CONFERENCE WILL SET THE DATE FOR CONTINUED HEARING
Initially, at the hearing held on July 15, 2025, the Examiner reviewed requests of the
parties and scheduled the continued hearing for August 14, 2025, with swift timelines for
1 In the event the Applicant, DCD or any party needs more time to file a brief, or to respond to a party’s legal brief,
they shall notify the Clerk in writing via electronic mail, with simultaneous service of copies to other represented
parties via electronic mail, requesting an extension; a formal motion is not required.
ORDER OF CONTINUANCE
AND CASE MANAGEMENT FOR
FILE NO. SUB2025-00012 – P. 9
Jefferson County Hearing Examiner
1820 Jefferson St./P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9180
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submittals. Following the adjournment of the hearing and upon further review of the exhibits
and the complexity of unresolved issues in the case, the Examiner has determined that the
timeline was too optimistic.
The status conference will be held in-person at 10:00 a.m., August 14, 2025 in the
Jefferson County Courthouse. In the event the parties need more time to provide responses that
ensure a complete record, the Examiner will look favorably on a motion to extend out the date of
the status conference.
ORDER OF CONTINUANCE AND CASE MANAGEMENT:
Based on the foregoing and considering all testimony and exhibits to date, the Hearing
Examiner orders as follows:
1. The single, open-record pre-decision hearing commenced on July 15, 2025 is
continued to a date to be determined at a status conference to be held on August 14, 2025. At the
continued hearing, the Applicant and DCD may call witnesses identified in their pre-filed
witness lists. Cross-examination will be allowed subject to the Examiner’s guidance. The
Hearing Examiner will resume asking questions of parties and witnesses.
2. The written record on the application remains open until closed by order of the
Hearing Examiner.
3. The public testimony portion of the hearing is closed (subject to any motions for
cause to submit additional public testimony).
4. Exhibits 01, 07, 21 and 30 are admitted provisionally with a request for
supplementation prior to the continued hearing, on a schedule set forth herein. With respect to
Exhibit 21, the Examiner respectfully requests the presence of Public Works at hearing to testify
in the event additional written comment is not provided as outlined above.
5. The Examiner requests submittal by the Applicant and DCD of a new exhibit that
alone contains the preliminary plat to be reviewed by the Hearing Examiner, signed and dated by
a licensed civil engineer. The Clerk shall assign a new, separate exhibit number to that
submittal.
6. Exhibit 19 is not admitted into the record with the exception of the last page,
which shall retain the Exhibit 19 designation. The Examiner requests an updated and complete
ORDER OF CONTINUANCE
AND CASE MANAGEMENT FOR
FILE NO. SUB2025-00012 – P. 10
Jefferson County Hearing Examiner
1820 Jefferson St./P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9180
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communication to and from WSDOT verifying review of the updated TIA (Exhibit 9) and
verifying either review of either the Applicant’s voluntary mitigation condition (for state
highway impacts), or the Applicant’s request for a decision without a state highway mitigation
offer.
7. Exhibit 22 admitted provisionally at hearing is not admitted into the record. By
its own wording, the exhibit consists of notes and discussions but no final review by the Fire
Marshall.
8. The Applicant is invited to submit a report by a qualified fire safety consultant
certifying that the proposal meets applicable fire safety standards and regulations.
9. The Examiner requests the testimony at hearing of the Jefferson County Fire
District No. 1 or a signed letter commenting on the fire-safety report of the Applicant’s fire
safety consultant described above.
10. The Examiner requests that the Fire Marshal appear at hearing to testify, or
alternatively provide a signed written analysis of whether the preliminary plat under the
proposed use classification meets all applicable fire safety requirements (based on review of the
new exhibit containing the signed preliminary plat, Item 5, above).
11. The Examiner requests submission of legal memoranda addressing his authority
under JCC chapters 18.18 and 18.19, and under RCW ch. 58.17, with respect to sanitary sewer
availability and transitional rural zoning within the Port Hadlock/Irondale Urban Growth Area.
12. Deadlines for written submittals and exchange and filing of witness lists are
provided in Section III herein. The Clerk shall post all filings and any written comments
received in response to those filings.
13. DCD and the Applicant are directed to appear at a status conference to be held on
August 14, 2025 to determine the status of the record and witness availability. At the status
conference, the Hearing Examiner will determine the time and date for the continued hearing in
consultation with the calendars of the parties.
In conclusion, there are a substantial number of issues arising from the state of the record
that bear directly on the Hearing Examiner’s ability to make a decision in compliance with
applicable law. The cooperation of the parties, the public, affected tribes, agencies and special
districts is appreciated at this stage of case management.
ORDER OF CONTINUANCE
AND CASE MANAGEMENT FOR
FILE NO. SUB2025-00012 – P. 11
Jefferson County Hearing Examiner
1820 Jefferson St./P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9180
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SO ORDERED, this 22nd day of July, 2025.
_________________________________
Tom Ehrlichman, Hearing Examiner