HomeMy WebLinkAboutC-02 SDP 2024-00006 Shine Response Reopening 3-10-2026FBefore Hearing Examiner
Gary N. McLean
Shine Neighbors Response to Order
to Reopen Page 1
BEFORE THE HEARING EXAMINER
FOR JEFFERSON COUNTY, WASHINGTON
In the Matter of Shoreline Substantial
Development Permit application filed
by
ROCK ISLAND SHELLFISH
(Robert Carson)
SDP2024-00006
RESPONSE OF SHINE NEIGHBORS
TO ORDER REOPENING RECORD
COMES NOW Marilyn Showalter, on her own and her neighbors’ behalf (Shine Neighbors), in
response to the Hearing Examiner’s “Order Reopening Record” and to the filings by Rock Island
Shellfish (Robert Carson) and the Jefferson County Department of Community Development
(County or DCD) responding to the same.
I. INTRODUCTION
In summary, we answer the four questions posed by the Hearing Examiner as follows:
1. Carson has not corrected his violations and has taken no steps in that direction since the
public hearing, per the record-to-date, including Carson’s and the County’s responses.
2. JCC 19.10.075 requires denial of the Application in SDP 2024-00006, if not formally,
then at least as compelling guidance for ruling on the Application. Every element of JCC
19.10.075 has been met in substance, if not formally. The Examiner has independent
authority and basis under Chapter 18 JCC to deny the Application and is urged to do so.
Approval of the Application would contradict the policy and logic of Chapter 19.10 JCC.
3. At this stage, Carson is not eligible for a VCA within resolution of the Application,
which should be denied. Post-denial, Carson (who so far has refused a VCA) would have
to submit a written request for a VCA and show substantial progress toward curing his
violations. Alternatively, he could simply proceed to cure the violations. One way or
another, Carson needs to cure the violations before any application for aquaculture can be
approved (after appropriate notice and public process).
4. In general, major conditions of a permit that are on-going past the date of approval should
be subject to a performance bond or similar guarantee. In this case, however, the
conditions required to remedy current violations must be fully performed before a permit
in SDP 2024-00006 is approved (see 1, 2 and 3 above). At some later point, if a permit is
approved, a bond requirement might be in order, depending on relevant circumstances
and conditions, the nature of which cannot be determined this far in advance.
Shine Neighbors Response to Order to
Reopen Page 2
Carson and the County have offered anemic responses to the four questions. They seem to
be playing a strange game of “Schrodinger’s Cat,” in which admitted violations on the uplands
exist to be cured for purposes of resolving the Application, but don’t exist for purposes of
scoping the Application and providing public review, and don’t exist for purposes of triggering
denial of the Application. Carson and the County should not be allowed to hang out in some
purgatory between a Notice of Voluntary Compliance and a Notice of Violation, in an attempt to
evade the mandate of JCC 19.10.075.
In addition, the County has failed, once again, to comply with required notifications—in this
instance the Hearing Examiner’s order that all parties email their filings to the other parties. Not
all Parties of Record received timely receive information necessary for informed comment.1
II. THE FOUR QUESTIONS
The Hearing Examiner has posed four questions:
1. Whether code violations on upland portions of the applicant’s property have been
corrected? If so, what has been accomplished since the hearing?
Based on the responses from Carson and the County, nothing has been corrected between the
hearing date and the Order to Reopen Record—or at all. Carson does not cite any work done
since the hearing, as no dates are provided. Nor does Carson state or imply that the violations
have been corrected to any degree, let alone to a substantial degree.
The County “has no additional comment” to Carson’s response. Log Item 58, p.1. One must
therefore find, based on the record, that the violations have not been cured, and that no steps
have been taken to cure them since the Public Hearing.
1 The Order to Reopen, p 4, set a filing schedule for all parties of record and required all parties to send their filings
to all other parties. I did not receive the County’s filing when it was sent, and it appears no other citizen-Party of
Record timely received the County’s or Carson’s filings, as reflected in their declarations of service. Log Item 58, p
3; RI 107, p 5. After I notified the Clerk’s office, on March 2, 2026, the Clerk sent the filings on March 6, 2026, but
even that “draft” distribution failed to include everyone who had made written comments in the case.
Shine Neighbors Response to Order to
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Carson does boast of clearing Himalayan blackberries (dates unspecified) from some portion
of the property, incorrectly implying that their non-native status justifies their removal without a
permit from within the shoreline buffer. Rock Island Initial Response, p.1. But Carson is just
admitting (again) to conduct that violates various shoreline, habitat, and critical areas laws,
including provisions cited in the Notice of Voluntary Compliance.
Carson also asserts, three times, that his application is for a “small,” “minor” “proposed”
.5-acre shellfish farm (Rock Island Initial Response, pp 1, 2, and 4), a misleading minimization
that does not really bear on the questions posed by the Examiner. But to be clear: the
Application is for two acres of tidelands. (And as we have strenuously argued, the Application
should have included the uplands, as well, and the County should not have found the Application
“Complete” without them.)
2. Whether JCC 19.10.075 re: “Denial of Permits” applies, or should apply, to the
pending shoreline permit application?
Both Carson and the County assert that JCC 19.10.075 does not apply because a “Notice of
Violation” is not present. It’s true that, formally, a Notice of Violation has not been issued, but
the analysis needs to go further. In every particular except formal issuance of a Notice of
Violation (which the County should have issued when Carson failed to execute a VCA), the
elements of JCC 19.10.075 have been met, including due process afforded by the Public Hearing
and post-Public Hearing process, which allowed Carson an opportunity to contest the alleged
violations. Whether JCC 19.10.075 applies formally, or only as close, compelling logic and
guidance to the Hearing Examiner’s discretion, the Application should be denied. Carson and the
County are trying to thread a needle in an attempt to evade the normal application of Chapters
19.10 and 19.15 JCC, but the Examiner has independent authority under Title 18 JCC to reach
the same, justified result.
Shine Neighbors Response to Order to
Reopen Page 4
Here are the uncontested facts (emphasis added):
a) DCD sent Carson a “Notice of Voluntary Correction.” (NVC) Log Item 51, p 1.2
b) The NVC includes a draft Voluntary Compliance Agreement (draft VCA), Log Item 51, pp 2-4.
c) The draft VCA recites and describes violations of four different codes, Log Item 51, p. 2:
Chapter 18.25 JCC - SMP. JCC 18.25.020 -Applicability: The
unpermitted use of the three parcels meets the definition of
development in JCC 18.25.100(4)(g).
Chapter 18.22 JCC - Critical Areas. The SMP incorporates critical
areas. At a minimum, the proposal will need to address
development within a 150-foot-wide fish and wildlife habitat
conservation area buffer and a geologically hazardous area.
JCC 18.30.060 (Grading and Excavation Standards) and 18.30.070
(Stormwater Management Standards). Ground-disturbing activities
have occurred that would have been subject to review for these two
development standards.
JCC 18.30.060(4) states all land-disturbing activities within
critical areas require a stormwater permit regardless of the
thresholds.
d) Carson did not respond by the required dates. There is no executed VCA.
e) DCD stated in its NVC: “If DCD and Robert Carson cannot reach agreement on how the
unpermitted development will be addressed, the department will ask that all development
be permitted or removed prior to beginning shellfish operations.” Log Item 51, p. 2.
f) Log Item 51 was admitted into evidence at the Public Hearing in matter SDP2024-00006.
g) Carson did not contest the violations in Log Item 51.
h) Carson admitted to conduct that is the basis of the violations described in Log Item 51. Log
Item 25, AP 23, R107 p. 1.
i) Carson has not substantially corrected the violations, has not requested an extension of
dates for compliance, and has not requested a VCA.
j) The County has not issued a Notice of Violation.
k) The County agrees that the violations must be corrected as part of SDP2024-00006 but has
changed its position from its position in (e), above. It currently recommends that the
Examiner approve the Application, and “order” Carson to sign the “voluntary” agreement he
has so far rejected. The County now proposes that performance requirements and deadlines
of a VCA be determined after the Examiner approves the Application, and that Carson be
allowed to begin shellfish operations as soon as DCD has signed off on the yet-to-be-
described details in the VCA. Log Item 58, Item3.
l) Carson agrees to make some undefined corrections as part of the resolution of this matter, on
an undefined schedule, under an undefined arrangement.
m) Specific tasks, details, and deadlines for remediation, whether or not under a VCA, have never
been described or subject to public review.
2 The correct term is “Notice of Voluntary Compliance,” but that is a distinction without a difference.
Shine Neighbors Response to Order to
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Carson has been afforded more process than required by Chapter 19.10 JCC at this stage.
Instead of merely receiving a Notice of Violation from the County (which should have sent such
a notice immediately following his failure to sign the VCA), he has been given notice of the
violations, Log Item 51, page 2, and has had the opportunity to present evidence and argument to
a neutral Examiner, if he disagreed with the County’s recitation of the violations. He did not
contest them at, during, or after the Public Hearing, including in this Reopening process. Thus,
the Hearing Examiner can make a finding in this proceeding, SDP 2024-00006, that he has
committed the violations. In essence, there is a parallel track under the independent authority of
JCC Title 18 to the normal (so far lackadaisical) enforcement process under JCC Title 19.
Of course, the uplands should have been addressed at the outset, as we have consistently
asserted: the whole properties, including past and proposed activities on them, should have been
included as part of the application, the public notice, and public review. The current Application
should have been deemed “incomplete” by the County. But even accepting, for the moment, the
reduced scope of the tidelands-only Application, all of the upland violations are relevant to the
merits of the Application. The violations and their potential remedies involve clearing and
grading steep unstable banks, graveling parking areas and building sites, constructing gabions
and buildings, conducting electricity via a large solar panel structure, and more. All of these
activities occurred within the shoreline buffer, critical areas, and habitat conservation areas, and
all of these activities were in furtherance of establishing an oyster operation. All of them are
within the appropriate scope of review of the tidelands Application. Carson carries the burden to
show these upland conditions comply with the SMA and other laws. He has failed to carry that
burden, so the Application should be denied.
Substantively, this is equivalent to denial under JCC 19.10.075. Moreover, any decision
other than denial would be at odds with JCC 19.10.075 and Chapter 19 JCC, generally. If, under
Shine Neighbors Response to Order to
Reopen Page 6
JCC 19.10.075, a permit must be denied when the property is subject merely to a Notice of
Violation (in which there has not yet been a quasi-judicial process), then surely it must also be
denied if a Hearing Examiner, after due process, makes a finding of a violation (especially, as
here, when the conduct and violations are uncontested). Otherwise, an allegation with less
process (e.g., only a Notice of Violation) would bar permits, but the same conduct, when found
to violate code by a Hearing Examiner after more due process, would not require denial. This is
irrational and would undermine the purposes of Chapter 19.10 JCC and the codes that it
enforces: to ensure environmental damage and other violations are remedied before a violator
can secure other permits for a property. So, as stated above, even if JCC 19.10.075 does not
facially require denial here, denial is the only justifiable decision consistent with it and other
laws and is within the Hearing Examiner’s discretion to decide.
Finally, what undergirds both Chapter 19.10 JCC and the many JCC codes it is intended to
enforce is the ancient3 and intuitive doctrine of “clean hands.” "Ex delicto non orituractio acto." (No
action arises from a wrongdoing.) One whose wrongdoing is connected (has nexus) to a requested
privilege is not entitled to that privilege. (More colloquially: You don’t get the keys to the car until
you clean up your room.) One must come to court with clean hands. This is the principle behind JCC
19.10.075. It is also the principle behind, for example, JCC 18.25.250 (1) and (9) (“. . . shoreline
development . . . shall include restoration”); and JCC 18.22.660 Mitigation (e.g. 2(c)(“Rectifying the
adverse impact by repairing, rehabilitating, or restoring the affected environment to the historical
condition or the condition existing at the time of the initiation of a project .”) This principle is woven
throughout our laws. To approve the Application now would violate this venerable doctrine.
3 Anenson, “Announcing the ‘Clean Hands’ Doctrine,” UC Davis Law Review, Vol. 51, p.1827, February 10, 2018,
Microsoft Word - 51-5_Anenson.docx (“The general principle underpinning the clean hands doctrine dates to
antiquity.” p.1848.) (“English barrister Richard Francis first coined a conception of the clean hands doctrine in his
book “Maxims of Equity” published in 1728.” p.1847.)
Shine Neighbors Response to Order to
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3. What are the specific provisions of any Voluntary Agreement that should apply
to this project? (See Voluntary Compliance Agreement requirements in JCC
19.15.015). Or, if the applicant is truly committed to “obtaining all required
permits and/or removing items as quickly as possible” (see Applicant’s post-
hearing response to comments, on page 12) in lieu of a Voluntary Correction
Agreement, what are the specific permits that would be pursued/obtained for what
specific purpose(s), and what is the estimated timeframe such permits could be
obtained and the correction work could be completed?
A VCA would be inappropriate at this stage within SDP 2024-0006, for at least three major
reasons:
a) The uplands conditions and potential elements of a VCA were not included in the
Application and were not publicly noticed. On the contrary, information relating to the uplands
was deliberately excluded from the Application and Public Notice.4 Definitive information on
the (draft) VCA and the County’s then-recommendation was not available until the day of the
Hearing.5 Scheduling public comment now will not cure these problems, unless the entire matter
is encompassed in a new, fully scoped application that is subject to public notice and review.
b) It is impossible to evaluate—now—the condition of the properties at the time (if ever)
that the violations will have been cured. These unknown future conditions could be caused by
natural forces or by work performed under a VCA. Slides, erosion, and damage from vehicles
and weather are a few examples. Also, when reviewing an application, the U.S. Army Corps of
Engineers and the Washington State Department of Ecology generally require an eelgrass survey
to be less than three years old. The date of the eelgrass survey in this matter is June 6, 2023, Log
Item 2, p 6, and will be out of date by the time upland conditions have been remedied (if ever).6
4 “Yes, Rock Island Shellfish would like to proceed with limiting the authorized substantial development under this
application to that below ordinary high water mark (OHWM),” Log Item 30, p1. The uplands were discussed in the Pre-
Application memo. Log Item 001. Under WAC 197-11-355 (2)(b), the County must (but did not) “List in the notice of
application the conditions being considered to mitigate environmental impacts, if a mitigated DNS is expected.”
5 “DCD Will Address Any Updates to the Staff Report During the Staff Report Presentation at the Hearing on
August 19, 2025.” CL11 p 2.
6 As a mental exercise, set aside all the uplands issues, and consider a hypothetical application for a permit in some
undefined future year. Too many unknowns would preclude informed evaluation.
Shine Neighbors Response to Order to
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And certainly, if the conditions are never or only partially remedied, Carson should not in
the meantime enjoy an aquaculture permit for the properties. In other words, this matter just
isn’t suited to a VCA that also allows shellfish operations to start up now, before full
compliance. The timetables don’t mesh.
c) Currently, Carson is not eligible for a VCA past the August 18, 2025, deadline he let go by:
JCC 19.15.015 Voluntary compliance agreements.
(1) The director and person responsible may meet to develop a voluntary compliance
agreement.
(a) Upon written request received prior to the correction date, the director may, for good
cause shown, grant an extension of the date set for voluntary compliance for an amount of
time as deemed reasonable by the director. The director may only consider as good
cause:
(i) Substantial completion of necessary correction;
(ii) Unforeseeable circumstances not caused by the person so as to make completion
impossible by the date established; or
(iii) Procedural requirements for obtaining a permit to carry out the corrective action.
Carson hasn’t made a written request for a VCA—he has said he doesn’t want a VCA. He hasn’t
made substantial progress toward fixing the violations, and he has no other reason to be qualified
“for good cause” under JCC 19.15.015(a). The County seemingly has overlooked these points.
Instead of issuing a Notice of Violation (which is the proper course, and which would preclude
approval of the Application), the County wants a strange form of “do-over” of the VCA and
wants to reward Carson with approval of the Application. But the requirements of JCC
19.15.015 have not been met.
A VCA developed after denial of the Application in SDP 2024-0006 (and presumably
after a Notice of Violation is issued) might well be appropriate. If Carson wants to take the VCA
path (post-denial of the Application), he must, under JCC 19.15.015(1)(a), submit a written
request for a VCA and show substantial progress toward curing his violations. If a Notice of
Violation hasn’t been issued, a finding by the Hearing Examiner of the uncontested violations
potentially could suffice as an equivalent.
Shine Neighbors Response to Order to
Reopen Page 9
Absent a VCA, Carson should simply cure his violations, whether on his own, pursuant
to a Notice of Violation (if issued), or in recognition of a finding of violations in this case by the
Hearing Examiner. If he doesn’t make progress, the County should escalate its enforcement.
One way or another, Carson needs to cure his violations. Only after he has cured the
uplands violations should he return, with a fully scoped application (i.e., an application that
includes the uplands). Public notice and process of the same should ensue before any decision
on such an application is made.
4. If this Shoreline Permit is to be approved, whether the Examiner should
exercise his authority provided under JCC 18.25.610(2) to require the applicant
to post a bond, security instrument, or other form of financial assurance or
surety, to ensure that the project proponent and/or his or her successors
adhere to the approved plans and all conditions attached to the shoreline
permit, particularly corrective actions required on the subject property? If
so, please suggest the form of such bond, or assurance device.
As argued above, the permit cannot be approved—and must be denied—if the violations have
not been remedied. Once they have been remedied, Carson can file a new application for
aquaculture. At that point (if it ever arrives) a bond or other financial instrument should be
required as assurance that any permit conditions will be complied with. The form of this
assurance should await a review of future circumstances, as well as a review of how faithfully
Carson remedies the current violations. The record, so far, is not encouraging.
III. CONCLUSION
The four questions posed by the Hearing Examiner reflect the consequences of the
original mistake in this case: Carson’s and the County’s deliberate exclusion of the uplands from
the Application. The consequences of that decision are: the Application includes no information
about the uplands, even though Carson had already initiated substantial development upon them
in furtherance of an oyster operation; there was no public notice or period of review of the
uplands conditions; the County did not even allude to the uplands until the Staff Report, which
Shine Neighbors Response to Order to
Reopen Page 10
was not timely publicly posted, which falsely stated a VCA had been signed, and which did not
include the VCA itself; the County did not acknowledge this significant error until the day before
the Public Hearing, at which point it said the Staff Report needed to be “slightly amended” to
remove the word “signed.” CL11 p 2.
As a result, both the public and the Hearing Examiner were jammed with inaccurate,
unreviewed, but highly relevant information. This damage cannot be undone, except by filing a
new application of proper scope and subjected to timely and informed public review. For this
reason alone, the Application should be denied.
Just as fundamental, Carson has the burden of proof to show that the Application
complies with Chapter 18.25 JCC and other laws. Given that the upland violations are
established as a matter of record on property subject to and relevant to the Application; that the
violations occur within the Shoreline Buffer and in violation of the SMA and other provisions of
law; and that Carson has neither contested nor remedied these violations—given those facts,
Carson has not met his burden. The Application should be denied.
Finally, denial is the only decision consistent with JCC 19.10.075. Approval would
be contrary to the logic and purpose of Chapter 19.10 JCC and to the ancient “clean hands”
doctrine. Those who violate the law need to remedy their violations before being granted
the privilege of a new development permit. The Application should be denied.
Ex delicto non orituractio acto. Unremedied wrongs should not be rewarded.
RESPECTFULLY SUBMITTED this 10th day of March, 2026,
/s/ Marilyn Showalter____________________________
Marilyn Showalter, Contact for Shine Neighbors, March 10, 2026
1596 Shine Rd., Port Ludlow, WA 98365
marilyn.showalter@gmail.com, 360-259-1700
Shine Neighbors Response to Order to
Reopen Page 11
PARTIES OF RECORD JOINING this “Response of Shine Neighbors to Order Reopening
Record” (more may join by separate email):
John Fabian
100 Shine Road
Port Ludlow, WA 98365
fabianj@olympus.net
Patti Marquis
1662 Shine Road
Port Ludlow, WA 98365
cpmarquis@yahoo.com
Charlie Marquis
1662 Shine Road
Port Ludlow, WA 98365
cpmarquis777@gmail.com
Bill West
1482 Shine Road
Port Ludlow, WA 98365
bcwest0101@gmail.com
Cheryl West
1482 Shine Road
Port Ludlow, WA 98365
bcwest0101@gmail.com
Sara and Ed Davis
1254 Shine Road
Port Ludlow WA 98365
saraonshine@gmail.com
Tony Brenna
110 Harborview Place
Port Ludlow, WA 98365
brengun@olympus.net
Elena Rodriguez Brenna
110 Harborview Place
Port Ludlow, WA 98365
emrod@olympus.net
Marcia Schwendiman
23 Longmire LN
Port Ludlow, WA 98365
marciaschwendiman@gmail.com
Sue Corbett
31 Churchill Lane
Port Ludlow, WA 98365
Suec71@gmail.com
Randy Corbett
31 Churchill Lane
Port Ludlow, WA 98365
rlcor@msn.com
Jan Wold
POB 1340 Poulsbo, WA 98370
j.creek@hotmail.com
Carolyn Eagan
235 Margaret St
Port Ludlow, WA 98365
Carolyn.a.eagan@gmail.com
Steve Aos
1596 Shine Rd.
Port Ludlow, WA 98365
steveaos@msn.com
Nellie Andersen & Nezam Tooloee
162 Longmire Lane
Port Ludlow, WA. 98365
nellieac@hotmail.com
Heethe Cowing
153 Stark Road
Port Ludlow, Washington 98365
heethe88@gmail.com
Bruce and Marcia Case
531 Shine Rd
Port Ludlow, WA 98365
bruce.marciacase@gmail.com
Karen Lopilato &
Michael Abramson
1520 Shine Rd
Port Ludlow, WA
karen.lopilato@gmail.com
Shine Neighbors Response to Order to
Reopen Page 12
DECLARATION OF SERVICE The undersigned hereby declares under penalty of perjury of the
laws of the State of Washington that on the 10th day of March 2026, she caused a true and correct copy of
the foregoing document to be served upon the following, via electronic mail as follows:
Carolyn Gallaway
carolyn@co.jefferson.wa.us
Adiel F. McKnight
AFMcKnight@co.jefferson.wa.us
Jesse DeNike
jesse@plauchecarr.com
Donna Frostholm
DFrostholm@co.jefferson.wa.us
Laura Mikelson
LMikelson@co.jefferson.wa.us
Ariel Speser
ASpeser@co.jefferson.wa.us
Jeremiah Luther
jluther@co.jefferson.wa.us
Aimee Muul
aimee@plauchecarr.com
Eric Kuzma
EKuzma@co.jefferson.wa.us
Marilyn Showalter
marilyn.showalter@gmail.com
John Fabian
fabianj@olympus.net
John Simpson
jbs8893@msn.com
Penny Tripp
penny@juneau.com
Jan Wold
jestuary@hotmail.com
Marcia and Bruce Case
Bruce.marciacase@gmail.com
Michael Tripp
michael@shirtco.com
Bill West
bcwest0101@gmail.com
Cheryl West
bcwest0101@gmail.com
Patti Marquis
Charlie Marquis
cpmarquis@yahoo.com
Steve Dittmar
swdittmar@gmail.com
Elena Rodriguez Brenna
emrod@olympus.net
Carolyn Eagan
carolyn.a.eagan@gmail.com
Sara Davis & Ed Davis
saraonshine@gmail.com
Nellie Andersen & Nezam Tooloee
nellieac@hotmail.com
Sue Corbett
suec71@gmail.com
Karen Lopilato & Michael Abramson
karen.lopilato@gmail.com
Steve Aos
steveaos@msn.com
Randy Corbett
rlcor@msn.com
Heethe Cowing
heethe88@gmail.com
Tony Brenna
brengun@olympus.net
Kerri Patterson
kerripatterson@msn.com
Marcia Schwendiman
marciaschwendiman@gmail.com
Signed_/s/ Marilyn Showalter_____3-10-2026_________
Marilyn Showalter