HomeMy WebLinkAboutRI08 Reply re Order Reopening record 032726
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ROCK ISLAND SHELLFISH’S REPLY RE: JEFFERSON
COUNTY HEARING EXAMINER’S ORDER REOPENING
RECORD - 1
PLAUCHÉ & CARR LLP
1218 Third Avenue, Suite 2000
Seattle, WA 98101
Phone: 206-588-4188
Fax: 206-588-4255
Before Hearing Examiner
Gary N. McLean BEFORE THE LAND USE HEARING EXAMINER IN AND FOR JEFFERSON COUNTY In the Matter of a Shoreline Substantial Development Permit application filed by ROCK ISLAND SHELLFISH (ROBERT CARSON)
) ) ) ) )) ) )
Case No. SDP2024-00006 ROCK ISLAND SHELLFISH’S REPLY RE: ORDER REOPENING RECORD
Rock Island Shellfish provides the following reply to comments submitted by
parties of record in this matter, pursuant to the Jefferson County Hearing Examiner’s
January 30, 2026 Order Reopening Record (“Order”).
1. Response to Heethe Cowing Comments.
Mr. Cowing contends that Rock Island Shellfish’s half-acre oyster farm (“Project”)
shoreline substantial development permit (“SDP”) application should be denied pursuant
to JCC 19.10.075 based on alleged code violations. Ex. C-01. However, Mr. Cowing does
not dispute JCC 19.10.075 only prohibits permit applications to be denied when the
property is “subject to a stop work order, notice of violation, or notice of violation and
order of abatement . . .” Mr. Cowing also does not dispute that no such stop work order,
notice of violation, or notice of violation and order of abatement has been issued. Hence,
JCC 19.10.075 provides no basis for denying the Project’s permit application.
Deviating from the scope of issues presented in the Order, Mr. Cowing makes
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ROCK ISLAND SHELLFISH’S REPLY RE: JEFFERSON
COUNTY HEARING EXAMINER’S ORDER REOPENING
RECORD - 2
PLAUCHÉ & CARR LLP
1218 Third Avenue, Suite 2000
Seattle, WA 98101
Phone: 206-588-4188
Fax: 206-588-4255
broad claims regarding cumulative impacts, shoreline character, State Environmental
Policy Act (“SEPA”) compliance, and infrastructure considerations. The SEPA decision
for the Project is final, and Mr. Cowing’s sundry additional claims are unsupported and
provide no basis for denying or further conditioning the Project’s SDP application.
Finally, Mr. Cowing concludes by providing a laundry list of additional conditions
that he wants to see imposed on the Project’s SDP. Mr. Cowing insists that these
conditions are supported by the Shoreline Management Act (Chapter 90.58 RCW, or
“SMA”). Yet he provides no specific legal support for this position, and he provides no
factual basis for requiring a bond or other form of security. As set forth in Rock Island
Shellfish’s Initial Response to the Order, there will be sufficient assurances that Rock
Island Shellfish will successfully resolve code compliance issues, regardless of whether
the parties execute a VCA or upland permit issues are addressed through a shoreline
permit condition. JCC 18.25.780 (authorizing the County to rescind or modify shoreline
permits in the event of noncompliance, and reserving all other remedial rights); JCC
18.25.800(3) (authorizing the County to impose penalties for violating terms of permits);
JCC 19.15.015(2) (authorizing the County to enforce compliance with a VCA through
abatement, penalties, and cost reimbursement).
2. Response to Marilyn Showalter Comments.
Ms. Showalter opposes the Project. She attempted, but failed, to successfully
appeal the SEPA determination for the Project. She also attempted, but failed, to
demonstrate that the Project will have adverse environmental impacts at the SDP hearing.
Rather, as presented at hearing, the Project will benefit the environment, as the farmed
oysters will clean the water and provide structured habitat, and it will benefit the broader
community by providing local food and supporting the County’s rural economy.
Recognizing that her challenge to the Project fails on the merits, Ms. Showalter
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ROCK ISLAND SHELLFISH’S REPLY RE: JEFFERSON
COUNTY HEARING EXAMINER’S ORDER REOPENING
RECORD - 3
PLAUCHÉ & CARR LLP
1218 Third Avenue, Suite 2000
Seattle, WA 98101
Phone: 206-588-4188
Fax: 206-588-4255
advances a series of rambling, disjointed arguments in her comment letter 1 arguing that
the Project’s SDP must be denied on the basis of upland activities that are not included as
part of the Project’s permit application. Ex. C-02. Ms. Showalter is wrong.
(i) Actions Taken Since Hearing
Ms. Showalter does not dispute that, when Rock Island Shellfish took over the
subject property, it had historic structures and was infested with invasive species. She also
does not dispute that Rock Island Shellfish has removed invasive species or that invasive
species removal is ecologically beneficial. Amazingly, however, Ms. Showalter seeks to
impose barriers to this ecologically beneficial action, arguing invasive species removal
requires first navigating lengthy permitting processes. Ex. C-02 p. 3. Ms. Showalter cites
no law in support of this contention, instead generically claiming invasive species removal
violates the “provisions cited in the Notice of Voluntary Compliance.” Id. The specific
provisions cited in the VCA, however, do not state that invasive vegetation removal
requires permitting. JCC 18.25.100(4)(g) defines “development,” which does not include
invasive vegetation removal. JCC 18.30.060 relates to grading and excavation (which
Rock Island Shellfish is not alleged to have conducted as part of invasive species removal)
and focuses exclusively on protecting “native” or “natural” vegetation, not invasive
species. And JCC 18.30.070 excludes vegetation management from “land-disturbing
activity” and also focuses on protecting native, not invasive, species.
Ms. Showalter also falsely states, without any factual support, that the Project is
for a two-acre shellfish farm. Id. While initial materials provided a two-acre figure, Rock
Island clarified at hearing that the Project is limited to 0.5 acres, and this is all that the
1 Ms. Showalter purports to also submit her comment letter on behalf of certain “Shine
Neighbors,” but the additional neighbors did not sign the comment letter, and the record in this
matter is bereft of any document authorizing Ms. Showalter to provide submissions on their
behalf.
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ROCK ISLAND SHELLFISH’S REPLY RE: JEFFERSON
COUNTY HEARING EXAMINER’S ORDER REOPENING
RECORD - 4
PLAUCHÉ & CARR LLP
1218 Third Avenue, Suite 2000
Seattle, WA 98101
Phone: 206-588-4188
Fax: 206-588-4255
company is requesting approval for as part of this application. See also Rock Island
Shellfish’s Response to Comments p. 5 (Aug. 29, 2025); Attachment A (modified U.S.
Army Corps of Engineers permit for the Project, clarifying the cultivation acreage is 0.5
acres).
(ii) Application of JCC 19.10.075
Ms. Showalter does not dispute that JCC 19.10.075 only authorizes the County to
deny a permit for a proposal if the County has previously issued a stop work order, notice
of violation, or notice of violation and order of abatement. Ex. C-02 p. 3. Ms. Showalter
also does not dispute that no such stop work order or notice has been issued. Id. Nor does
she dispute that the County could have easily, but chose not to, authorize the County to
deny a project application if the property is subject to a notice of voluntary compliance or
if the County offered a voluntary compliance agreement pursuant to JCC 19.15.010 or
.015. Ms. Showalter also fails to cite any other law that authorizes or requires the County
to deny the Project’s SDP on the basis that the County offered Rock Island Shellfish a
voluntary compliance agreement to resolve allegations of unpermitted development falling
outside the scope of the Project’s application. Ex. C-02.
Nonetheless, Ms. Showalter argues that “compelling logic” justifies extending JCC
19.10.075 beyond the scope of its plain terms and that it would be “irrational” not to do
so. Id. pp. 3, 6. She also contends this result is supported by equitable considerations. Id.
p. 6. Ms. Showalter’s argument must be rejected because it is about what she believes the
law should be, not what the law is. Id. p. 3. The County must administer the law as it is
written, however, and Ms. Showalter’s request to expand JCC 19.10.075 beyond its
current scope must be directed to the County Board of Commissioners, not Community
Development or the Hearing Examiner. Stewart v. Dep’t of Soc. & Health Servs., 162 Wn.
App. 266, 270, 252 P.3d 920 (2011) (agencies’ powers are limited to expressly granted or
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ROCK ISLAND SHELLFISH’S REPLY RE: JEFFERSON
COUNTY HEARING EXAMINER’S ORDER REOPENING
RECORD - 5
PLAUCHÉ & CARR LLP
1218 Third Avenue, Suite 2000
Seattle, WA 98101
Phone: 206-588-4188
Fax: 206-588-4255
necessarily implied from legislation, and courts will enforce the plain language of a
statute); Chaussee v. Snohomish Cty. Council, 38 Wn. App. 630, 638-40, 689 P.2d 1084
(1984) (hearing examiners are creatures of the legislature, lack common law or inherent
powers, and may not consider factors, including equitable issues, beyond those established
in legislation). Ms. Showalter cites no provision of the County Code that authorizes, let
alone requires, denial of the Project’s shoreline permit application due to alleged
unpermitted development activities and the County’s proposal to resolve them through a
VCA. Ex. C-02. As such, her claim that the permit must or may be denied on this basis
must be rejected.
Perhaps recognizing that JCC 19.10.075 provides no foundation for denying the
Project’s SDP, Ms. Showalter argues “the Hearing Examiner can make a finding in this
proceeding, SDP 2024-00006, that [Rock Island Shellfish] has committed the violations.”
C-02 p. 5. But Ms. Showalter provides no legal basis for the Hearing Examiner to enter
such a finding, and contrary to her argument, doing so would directly conflict with Title
19 of the County Code, which vests initial decision-making authority on code compliance
and enforcement with County staff, not the Hearing Examiner. E.g., JCC 19.10.025; JCC
19.15.010; JCC 10.20.010, .015, .020. Rather, the Hearing Examiner’s role is to consider
appeals of certain administrative code compliance decisions. E.g., JCC 19.35.045.
Ms. Showalter also mischaracterizes the nature of the Project’s SDP hearing,
arguing that it provided a full opportunity to resolve alleged code violations. Ex. C-02 p.
5. The hearing was on Rock Island Shellfish’s oyster farming Project, and while County
staff indicated there was upland development that required permitting for purposes of
justifying a proposed permit condition, the County did not attempt to articulate (let alone
demonstrate) each specific activity or development that would require permitting, and the
County’s proffered VCA similarly summarizes alleged violations. Ex. 051. Demonstration
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ROCK ISLAND SHELLFISH’S REPLY RE: JEFFERSON
COUNTY HEARING EXAMINER’S ORDER REOPENING
RECORD - 6
PLAUCHÉ & CARR LLP
1218 Third Avenue, Suite 2000
Seattle, WA 98101
Phone: 206-588-4188
Fax: 206-588-4255
of a Code violation would require, among other things, specific evaluation of each discrete
activity and development that is alleged to have occurred, an analysis of the relevant code
provision(s), and a determination as to whether any exemptions or exceptions apply (such
as for existing nonconforming development, maintenance and repair actions, noxious
weed removal). E.g., JCC 18.25.,560; JCC 18.25.660. No attempt to make this
demonstration was made at the hearing, and any such attempt must be done within the
context of the County Code’s Title 19 enforcement and compliance provisions. Ms.
Showalter’s attempt to bypass those provisions is improper and must be rejected.2
(iii) VCA Provisions
Ms. Showalter identifies no specific provisions for inclusion in a VCA but rather
argues that a VCA should not be executed. Ex. C-02 pp. 7-9. This is telling. Ms.
Showalter’s immediate goal is not a quick resolution of upland permitting issues, which
could potentially be achieved through a VCA or a permit condition requiring resolution,
as Rock Island Shellfish suggested. Rather, her goal, and requested relief, is denial of the
Project’s shoreline permit. Id. As established directly above, however, she has failed to
cite any law that authorizes or requires denial of the permit.
Ms. Showalter advances three meritless arguments contending a VCA cannot be
issued. Her first argument – that upland development and a VCA were not included in the
Project’s application – is legally baseless. The only provision she cites in support of it,
WAC 197-11-355(2)(b), relates to SEPA compliance, and the Project’s SEPA decision is
final and not at issue here. Ex. C-02 p. 7. The County Code does not require applicants to
include everything within a parcel as part of a permit application, and it authorizes the
2 Ms. Showalter includes a recitation of purported “uncontested facts” related to alleged code
violations. Ex. C-02 p. 4. Because this is the improper venue for resolving alleged code violations,
it is unnecessary and improper to litigate the accuracy of these supposed “facts.” Needless to say,
Rock Island Shellfish disputes many of these facts, including that the company has committed all
alleged code violations and has admitted to the underlying conduct.
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ROCK ISLAND SHELLFISH’S REPLY RE: JEFFERSON
COUNTY HEARING EXAMINER’S ORDER REOPENING
RECORD - 7
PLAUCHÉ & CARR LLP
1218 Third Avenue, Suite 2000
Seattle, WA 98101
Phone: 206-588-4188
Fax: 206-588-4255
County and property owners to separately agree upon VCAs outside of the permit
application process. JCC 19.15.075. Her second argument has no legal basis whatsoever
and is based on federal and state processes outside of the County’s authority. Ex. C-02 p.
7. Her third argument mischaracterizes the time limit in JCC 19.15.015 for completing
work after a VCA is signed as establishing time limits for executing a VCA. Id. p. 8. The
County Code does not prohibit or limit the County and Rock Island Shellfish from
executing a VCA in the future, as Ms. Showalter inaccurately contends.
Ms. Showalter also inaccurately suggests that Rock Island Shellfish is not willing
to sign a VCA and has not offered any specific timeline for resolving upland permitting
issues. Id. In fact, Rock Island Shellfish proposed a detailed condition for resolving
upland permitting issues as an alternative to a VCA, with specific timelines and
requirements. Ex. R-106 pp. 7-8; Rock Island Shellfish’s Response to Comments p. 12
(Aug. 29, 2025). Further, Rock Island Shellfish did not express absolute opposition to
signing a VCA but instead suggested that an alternative condition would be a more
suitable approach. Id. Further, it expressed concern with vague and overly broad language
in the VCA that was in the draft earlier provided by the County. Rock Island Shellfish’s
Response to Comments p. 12 (Aug. 29, 2025).
Rock Island Shellfish is open and willing to hold continued discussions with the
County to attempt resolving the company’s concerns with the initial, proffered VCA, and
it is hopeful that those discussions will be successful. Rock Island Shellfish is amenable to
a condition that would require upland development issues to be resolved either through a
County-approved schedule (as set forth in the company’s recommended revision to
Condition 37) or a VCA, provided the parties are able to agree to one.
(iv) Sureties
Ms. Showalter includes a generic request for a bond or other financial instrument
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ROCK ISLAND SHELLFISH’S REPLY RE: JEFFERSON
COUNTY HEARING EXAMINER’S ORDER REOPENING
RECORD - 8
PLAUCHÉ & CARR LLP
1218 Third Avenue, Suite 2000
Seattle, WA 98101
Phone: 206-588-4188
Fax: 206-588-4255
to ensure compliance with permit conditions. Ex. C-02 p. 9. Similar to Mr. Cowing, she
provides no specific legal or factual support for this request, and as described above there
are already adequate assurances to ensure required upland development permitting issues
are addressed. Supra p. 2.
3. Response to Taylor Shellfish Comments.
Erin Ewald of Taylor Shellfish provided comments at the hearing in this matter
and is thus a party of record. JCC 18.25.100(16)(c). Ms. Ewald was not notified by the
County of the opportunity to provide comments in response to the Order, and she
submitted comments on March 20. Ms. Ewald notes that Rock Island Shellfish’s proposed
Project is a preferred, water-dependent use and has been carefully designed to avoid and
minimize potential impacts. E. Ewald Comment Letter p. 1 (March 20, 2026). She further
notes that Rock Island Shellfish has improved the upland by removing invasive weeds and
debris, and the company has demonstrated a commitment to long-term land stewardship.
Id. Ms. Ewald further emphasizes that upland permitting issues should be resolved
through the separate, established process in the County Code for compliance and
enforcement, and she argues that the Project should be reviewed on its own legal and
factual merits. Id. p. 2. Ms. Ewald concludes by stressing that oyster farm proposals such
as Rock Island Shellfish’s Project are seasonal and biologically driven, and encouraging
the Hearing Examiner to issue a timely decision in favor of the Project.
Rock Island Shellfish agrees with Ms. Ewald’s comments.
CONCLUSION
Rock Island Shellfish’s carefully-designed Project will effectively avoid and
minimize potential adverse impacts, and it will provide numerous environmental and
societal benefits. Rock Island Shellfish is committed to resolving upland development
issues, whether through a VCA or otherwise. Additional hearings or other processes are
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ROCK ISLAND SHELLFISH’S REPLY RE: JEFFERSON
COUNTY HEARING EXAMINER’S ORDER REOPENING
RECORD - 9
PLAUCHÉ & CARR LLP
1218 Third Avenue, Suite 2000
Seattle, WA 98101
Phone: 206-588-4188
Fax: 206-588-4255
unnecessary and will prejudice the company’s ability to timely install and operate the
Project. Rock Island Shellfish respectfully requests that the Project’s SDP be issued as
expeditiously as possible, without further processes.
RESPECTFULLY SUMBITTED this 27th day of March, 2026.
PLAUCHÉ & CARR LLP By: s/Jesse DeNike Jesse DeNike, WSBA #39526 Attorney for Rock Island Shellfish
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ROCK ISLAND SHELLFISH’S REPLY RE: JEFFERSON
COUNTY HEARING EXAMINER’S ORDER REOPENING
RECORD - 10
PLAUCHÉ & CARR LLP
1218 Third Avenue, Suite 2000
Seattle, WA 98101
Phone: 206-588-4188
Fax: 206-588-4255
DECLARATION OF SERVICE
The undersigned hereby declares under penalty of perjury that on the 27th day of
March, 2026, she caused a true and correct copy of the foregoing document to be
transmitted for service on the following individuals via electronic mail:
Laura Mikelson: lmikelson@co.jefferson.wa.us
Donna Frostholm: dfrostholm@co.jefferson.wa.us
Carolyn Gallaway: carolyn@co.jefferson.wa.us
Adiel McKnight: afmcknight@co.jefferson.wa.us
Eric Kuzma: ekuzma@co.jefferson.wa.us
Philip C. Hunsucker: phunsucker@co.jefferson.wa.us
Ariel Speser: aspeser@co.jefferson.wa.us
Jeremiah Luther: JLuther@co.jefferson.wa.us
Erin Ewald: erine@taylorshellfish.com
Marilyn Showalter: marilyn.showalter@gmail.com
John Fabian: fabianj@olympus.net
John Simpson: jbs8893@msn.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
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ROCK ISLAND SHELLFISH’S REPLY RE: JEFFERSON
COUNTY HEARING EXAMINER’S ORDER REOPENING
RECORD - 11
PLAUCHÉ & CARR LLP
1218 Third Avenue, Suite 2000
Seattle, WA 98101
Phone: 206-588-4188
Fax: 206-588-4255
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
Penny Tripp: penny@juneau.com
Jan Wold: jestuary@hotmail.com; j.creek@hotmail.com
Michael Tripp: michael@shirtco.com
Marcia and Bruce Case: bruce.marciacase@gmail.com
Marcia Schwendiman: marciaschwendiman@gmail.com
DATED this 27th day of March, 2026, at Seattle, Washington.
s/Aimeé Muul
Aimeé Muul, Legal Assistant
aimee@plauchecarr.com
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