Loading...
HomeMy WebLinkAbout17 2014-06-04PLAUCH & CARR LLP Samuel W. Plauche 811 First Avenue,Suite 630, Seattle,WA 98104 Amanda M. Carr TEL: (206)588-4188 FAX: (206)588-4255 www.plauchecarr.com June 4, 2014 Stacie Hoskins Department of Community Development Jefferson County 621 Sheridan Road Port Townsend, WA 98368 RE: BDN LLC Tjemsland Geoduck Farm Dear Ms. Hoskins: This letter is submitted on behalf of BDN LLC ("BDN") in response to recent communications with your office on May 14 and 15, 2014, concerning the necessity of BDN applying for a Substantial Shoreline Development Permit("SDP") from Jefferson County ("County") for its proposed geoduck farm, located on County Parcel Nos. 821334076, 821334074, 821334078, and 821334011. BDN submitted its JARPA to the County on November 5, 2013, before the County approved its Shoreline Master Program ("SMP") update, which was approved by the Department of Ecology on February 7, 2014. At the time that BDN submitted its JARPA to the County and U.S. Army Corps of Engineers ("Corps"), the County did not require a geoduck farm to obtain a SDP under its SMP.' When BDN provided notice to the County of its plans to apply for a geoduck farm, you confirmed that "Under the current Shoreline Management Master Program there are no permits or reviews required by Jefferson County for this proposal."2 However, you also stated that: This proposal is vested only in what is initiated and permitted prior to the effective date of the new Shoreline Management Master Program . . . After the adoption and effective date of the new Shoreline Management Master Program reviews and/or permits will be required for activity, use or structure outside these parameters. Any use lawfully existing and established prior to the effective date of the new Shoreline Management Master Program may be maintained; however, any use begun or established after the effective date shall be required to comply with the new Shoreline Management Master Program including permitting from Jefferson County.3 Jefferson County Code § 18.25.280(2013). 2 Letter from Stacie Hoskins to Amy Leitman,December 13,2013. 3 ICl LOG Pays Ms. Stacie Hoskins 2- June 4, 2014 It is our understanding that you communicated to BDN's environmental consultant, Ms. Leitman, that the County would require a permit for the farm, based on the new revisions to its SMP. The County's interpretation of the effect of its SMP update on BDN's proposed project is inconsistent with Washington State vesting law principles. "In Washington, `vesting' refers generally to the notion that a land use application, under proper conditions, will be considered only under the land use statutes and ordinances in effect at the time of the application's submission."4 Where an applicant has timely submitted a complete application in accordance with all zoning ordinances and applicable codes in effect at the time of the application, the County cannot even consider the changes to its SMP when ruling on the application or retroactively seek to change the rights of applicants that filed before the effective date of the SMP.5 By setting a date certain vesting point, the doctrine "ensures that new land-use ordinances do not unduly oppress development rights, thereby denying a property owner's right to due process under the law."6 While the vested rights doctrine was initially established based on filing of a building permit, both the courts and Shoreline Hearings Board have consistently held that the filing of the necessary documents to comply with the Shoreline Management Act has the same effect.' BDN complied with these requirements. It notified the County of its filing of a complete application with the Corps, which constitutes the only entitlement that was needed to install the farm at the time the application was filed. As confirmed by the County, at the time the application was filed, BDN did not need to obtain a permit from the County. There is no argument that the proposed farm fails to meet County or Corps requirements and regulations, as they existed when the application was filed. The vested rights doctrine applies even in situations where a permit was not required from the particular governmental agency in question. For example, in Evaline Community Association v. Good, the court considered a proposed mine that filed an application, and received approval, from the Department of Natural Resources. Later, the county adopted regulations requiring a special use permit. The court held that the project was exempt from county permitting requirements based on the vested right doctrine.8 This approach makes sense. If the intent is to protect the due process rights of project applicants against unpredictable subsequent changes in the law, it would make no sense to exempt them from small changes in permit requirements, yet subject them to completely new permitting regimes that require a permit where none was previously required. The County exemption for aquaculture projects from application and permit requirements are part of the County regulations that must be applied to the project—they cannot be circumvented due to the fact that BDN did not file an application that was not required at the time. 4 Noble Manor Co. v. Pierce County, 133 Wn.2d 269,275(1997);see also Town of Woodway v. Snohomish County, 172 Wn.App. 643,651 (2013). 5 Allenbach v. City ofTukwila, 101 Wn.2d 193, 196, 199-200(1984). 6 Town of Woodway,supra, 133 Wn.App. at 651. Id. at 652;Buechel v. State, 125 Wn.2d 196,207 n.35(1994); Gray v. Talbot, 11 Wn.App. 807,811 (1974);Seattle Yacht Club v. Jefferson County, SHB No. 89-45,Final Findings of Fact, Conclusions of Law and Order,at 23 ("The applicants have a vested right to have their proposal reviewed under the local master program as it existed at the time they completed filing their application. In the instant case this calls into play the version of the Jefferson County Shoreline Master Program adopted in 1983"). 8 Evaline Community Ass'n v. Good, 118 Wn.App. 1018, *5-6(2003). LOG 9TH= Ms. Stacie Hoskins 3- June 4, 2014 Based on the foregoing authority, the County's interpretation of the effect of its SMP update is incorrect. Rather than acknowledge that BDN should be judged by the County regulations in place at the time when all necessary applications for discretionary approvals had been filed, the County states that the project would be vested "only in what is initiated and permitted" or "established." While this is the vested rights rule in many states, it is not the rule in Washington. BDN's proposed farm should be reviewed by the County under the regulations in place when the relevant applications were filed, which did not require a SDP or conditional use permit from the County. BDN therefore seeks confirmation from the County that, consistent with state vesting law principles, no County permit is required for this project. We would be happy to discuss BDN's vested rights, and how these rights impact its project, with you or the County Prosecutor's Office, at your earliest convenience. Thank you for your time and consideration in this matter. Very truly yours, Robert M. Smith RMS:cml LOG ITFIvi Pay 3= 01