HomeMy WebLinkAbout28 2015-01-20Anna Bausher
From: Sanguinetti, Pamela NWS<Pamela.Sanguinetti@usace.army.mil>
Sent: Tuesday, January 20, 2015 4:28 PM
To: Anna Bausher
Subject:RE: JARPA Permit Information Request(UNCLASSIFIED)
Classification: UNCLASSIFIED
Caveats: NONE
Ms. Bausher,
These permits have not been issued. Please let me know if you have any questions.
Sincerely,
Pamela Sanguinetti,
Senior Project Manager/Biologist
U. S.Army Corps of Engineers-Seattle District CENWS-OD-RG Post Office Box 3755
4735 East Marginal Way South
Seattle,Washington 98134-2385
Phone: (206)764-6904
Corps Website: http://www.nws.usace.army.mil/General Regulatory Assistance: http://www.ora.wa.gov/
Original Message
From: Anna Bausher [mailto:ABausher@co.jefferson.wa.us]
Sent:Tuesday,January 20, 2015 4:03 PM
To: Sanguinetti, Pamela NWS
Subject: [EXTERNAL]JARPA Permit Information Request
Hello Ms. Sanguinetti,
I am hoping that you are the appropriate person for me to be contacting and can provide me with some information. I
am inquiring about three JARPA applications that were submitted for aquaculture to the US Army Corps of Engineers in
November and December of 2013.The applicant was Brad Nelson and/or BDN LLC, the site location is in Squamish
Harbor in Jefferson County.The parcel numbers associated with the permits are 721031007, 821334011, 821334078,
821334076, 821334075, and 821334074. If possible, I am requesting information regarding if these permits were issued,
when they were issued and any permit conditions that they have.
If I can provide additional information please contact me.Any information that can be provided is greatly appreciated.
Thank you in advance for your attention to this request.
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Sincerely, 10
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4,
Anna Bausher
Assistant Planner,Jefferson County Department of Community Development
621 Sheridan Street * Port Townsend,WA 98368
Phone 360-379-4454 * Fax 360-379-4451
abausher@co.jefferson.wa.us<mailto:shoskins@co.jefferson.wa.us>
All e-mail sent to this address has been received by the Jefferson County e-mail system and is therefore subject to the
Public Records Act,a state law found at RCW 42.56. Under the Public Records law the County must release this e-mail
and its contents to any person who asks to obtain a copy (or for inspection)of this e-mail unless it is also exempt from
production to the requester according to state law, including RCW 42.56 and other state laws.
Classification: UNCLASSIFIED
Caveats: NONE
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MARILYN SHOWALTER
1596 SHINE ROAD, PORT LUDLOW, WA 98365
360)259-1700 * marilyn.showalter@gmail.corn
April 21, 2015
Carl Smith, Director
Department of Community Development
Jefferson County, Washington
621 Sheridan St.
Port Townsend, WA 98368
csmith@co.jefferson.wa.us
The Honorable Michael Haas
Prosecuting Attorney
Jefferson County, WA
P.O. Box 1220
Port Townsend, WA 98368
mhaas@co.j efferson.wa.us
BY HAND-DELIVERED LETTERS AND EMAIL
Dear Messrs. Smith and Haas:
Re: Request for Confirmation on Applicable Shoreline Management Permit Process
I am writing this letter on behalf of Sue Corbett and myself,both residents of Shine Road. Shine
Road fronts on Squamish Harbor shoreline and tidelands that are the subject of multiple JARPAI
applications for geoduck and other shellfish farming. To our knowledge, these applications have
been submitted to the US Army Corps of Engineers,but either have not been submitted to or are
not being formally considered by Jefferson County.
The purpose of this letter is to request confirmation ofthe opinions stated in three letters from
the County, signed by Stacie Hoskins, Planning Manager—two, dated December 13 and 16,
2013, to Amy Leitman, who represented some JARPA applicants2; and one dated May 14, 2014,
to Sue Corbett3—regarding compliance with the County's most recently adopted Shoreline
Master Program (SMP). In the language we have bolded below, those letters unequivocally
state, we believe correctly:
1 Joint Aquatic Resources Permit Application ("JARPA"). These applications concern Jefferson County parcel
numbers 721031007,821334011, 821334078,821334078,821334074,821334075, and 821334076. Two other
parcels that may be at issue are parcel numbers 821334073 and 821334079.
2 Letters from Stacie Hoskins, Director, DCD,to Amy Leitman, December 13 and 16,2013("Hoskins-Leitman")
3 Letter from Stacie Hoskins, Director, DCD,to Sue Corbett, May 14, 2014("Hoskins-Corbett")
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Ltr Messrs Smith and Haas
April 21, 2015, page 2
Any use lawfully existing and established prior to the effective date ofthe 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 Program4.
And:
Given all permits for the proposal were not obtained prior to February 21, 2014, the
adoption and effective date of the new Shoreline Management Master Program, local
permitting for the geoduck farm proposal through Jefferson County DCD is
required.5
We are asking for confirmation of the bolded language because, subsequent to these apparently
definitive letters, Sue Corbett received an email, dated December 1, 2014, from Anna Bausher,
Assistant Planner, DCD, asserting an opposite opinion. She stated that if, prior to the effective
date of the new County SMP, a would-be geoduck farmer had submitted a completed JARPA to
the federal US Army Corps of Engineers, no county permit would be required.
Surprised by this reversal, Ms. Corbett, on the same day, December 1, 2014, requested
clarification, and Ms. Bausher replied, on December 3, 2014, that the new position was after
legal consultation." Ms. Corbett responded on December 5, 2014, with a request for
reconsideration, and included supporting legal authority. She has received no response from the
County.
We recognize that, in the last few months, there has been turnover at top levels in both DCD and
the Prosecuting Attorney's office. As we discuss below, there also have been recent, relevant
court cases, as well as a bill in the legislature that attempted to undo the case law but that later
died.
So now that the dust has settled, we ask that you please answer whether you stand by the
statements, quoted above, contained in the December 13 and 16, 2013, letters to Amy Leitman
and the May 14, 2014, letter to Sue Corbett. It will save time, money, and confusion if the
county, potential applicants, and affected citizens all understand what the county's position is on
this threshold issue.
The Vested Rights Doctrine No Longer Exists in Washington State and Has Been Replaced
by a Statutory Scheme
In support of the County's position in the above-quoted letters, we offer the following analysis.
Many long-time attorneys, planners, and developers grew up (professionally) on the
common-law vested rights doctrine. This common-law doctrine (a minority position
among the states)provided that developers are entitled"to have a land development
Hoskins-Leitman,see footnote 2, bolding added
Hoskins-Corbett,see footnote 3, bolding added
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Ltr Messrs Smith and Haas
April 21, 2015, page 3
proposal processed under the regulations in effect at the time a complete building permit
application is filed, regardless of subsequent changes in zoning or other land use
regulations."6
Over the years, the courts applied the doctrine to various other situations, including, in a
1974 case, to a building-permit application in connection with a county Shoreline
Management Program.
Then, in 1987, the legislature codified this doctrine in statute,but only as it applied to
building permits and platting. The law did not (and does not) include the Shoreline
Management Act.8
In a series of three cases,91011 the Washington State Supreme Court found that the
common-law vested-rights doctrine no longer exists, and was replaced by the 1987
statutory scheme. In the last of these cases, citing the previous two, the court flatly
declared, "While it originated at common law, the vested rights doctrine is now
statutory."
12
The Washington State Supreme Court correspondingly found that court cases applying
the common law doctrine were no longer applicable after enactment of the 1987 statute.13
In 2014, the Washington State Court of Appeals, Division I, found that no vested rights
attach to the Shoreline Management Act—because any common law right no longer
exists and the relevant statute does not include the SMA.14 The case was appealed to the
state Supreme Court,15 which declined review on February 3, 2015.16 (The prevailing
party City of Kirkland's Answer to amicus curiae Pacific Legal Foundation et al is
particularly concise and cogent.17)
A bill in the 2015 state legislature would have tried to reverse the case law and restore
common law vested rights. This bill died in the state House Judiciary Committee.'$
6 Abbey Road Group. LLC v. City of Bonney Lake, 167 Wn.2d 242, 250, 218 P.3d 180(2009)
Talbot v. Gray. 11 Wn.App. 807,811,525 P.2d 801(1974)
s RCW 19.09.95 and RCW 58.17.033, Laws of 1987, ch. 104§§ 1-2
9 Erickson&Assocs. v. Mclerran. 123 Wn.2d 864,872 P.2d 1090(1994)
Abbey Rd. Grp., LLC v. City ofBonney Lake, 167 Wn.2d 242,218 P.3d 180(2009)("Abbey Road")
11 Town of Woodway v.Snohomish County, 180 Wn.2d 172, 2014(2014)("Woodway")
17 Woodway,id, page 7 of slip opinion pdf, https://www.courts.wa.gov/opinions/pdf/884056.pdf
Abbey Rd at footnote 8, (confirming and explaining Erickson)
14 Potala Village v City of Kirkland, http://www.courts.wa.gov/opinions/pdf/705423.pdf
1s https://www.courts.wa.gov/appellate_trial_courts/supreme/?fa=atc_supreme.petitions
Fifth case,Case No.90819-2,
http://www.courts.wa.gov/appellate_trial_courts/su preme/index.cfm?fa=atc_supreme.display&year=2015&petiti
on=pr150203
17 https://www.courts.wa.gov/content/petitions/90819-
2%20Answer%20to%20Amicus%20Curiae%20Pacific%20Legal%20Foundation%20et%20al.pdf
1s http://apps.leg.wa.gov/billinfo/summary.aspx?year=2015&bill=5921#history
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Ltr Messrs Smith and Haas
April 21, 2015, page 4
With respect to intended geoduck fanning on tidelands in Jefferson County, the sequence
described above means:
No common law rights were vested with an application(or no application)under the old
Jefferson County SMP, at least after 1987,when the common law doctrine was replaced
by a statutory scheme that does not include the SMA.
If an activity was not already lawfully underway prior to the effective date of the new
SMP,the activity cannot commence unless it complies with the new SMP.
The new SMP requires an application and a permit before an activity such as geoduck
farming may lawfully be undertaken.
In other words,the language we bolded in the Hoskins letters to Ms. Leitman and Ms. Corbett is
correct, which we ask you to confirm.
Please reply to this letter. We are sending it by hand-delivered mail, and also by email, so that
the links in the footnotes are easier to access. If you do not confirm the Hoskins letters,please
explain why, so we can analyze your answer.
Thank you.
Sincerely,
Marilyn Showalter
1596 Shine Road
Port Ludlow,WA 98365
marilyn.showalter@gmail.com
and for
Sue Corbett
31 Churchill Lane
Port Ludlow,WA 98365
suec71@gmail.com
Enclosure: pdf of three Hoskins letters, and Corbett-Bausher emails
cc: Jefferson County Commissioners
Pam Sanguinetti, U.S. Army Corps of Engineers
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