HomeMy WebLinkAboutMLA17-00011 BDN DecisionPage 1 of 2
Department of Community Development
INDEX FOR MLA17-00011 BDN GEODUCK FARM
Log
Number Date Subject Author
1 8/14/2013 RE: Geoduck permitting Stacie Hoskins
2 11/5/2013 JARPA Application for BDNLLC Geoduck Farm on Hood Canal Meg Amos for Amy Leitman
3 11/6/2013 Note Stacie Hoskins
4 11/26/2013 JARPA for the BDNLL Geoduck Farm on Section SE 33 Townsend 28N Range 01E, WM Stacie Hoskins
5 12/11/2013 JARPA application for the BDNLLC Oyster Farm proposal on Hood Canal Meg Amos for Amy Leitman
6 12/11/2013 JARPA for the BDN LLC (Smersh) Geoduck Farm on Hood Canal Meg Amos for Amy Leitman
7 12/12/2013 Note RE: Comparison of Aquaculture Sites (date approximate. Was attached to Log Item 6)Unknown
8 12/13/2013 JARPA for the BDN LLC (Tjemsland) Geoduck Farm on Section SE 33 Townsend 28N Range 01E, WM Parcels
721031007, Parcels 821334076, 821334074, 821334078, 821334011
Stacie Hoskins
9 12/13/2013 JARPA for the BDN LLC (Smersh) Geoduck Farm on Section NW 03 Townsend 27N Range 01E, W Parcel
721031007
Stacie Hoskins
10 12/16/2013 RE: Clarification of my November 26, 2013 Letter Stacie Hoskins
11 5/1/2014 Geoduck Farming on Hood Canal's Squamish Harbor Residential Tidelands Carl Smith
12 5/1/2014 Geoduck Farming on Hood Canal's Squamish Harbor Residential Tidelands Sue Corbett
13 5/8/2014 Notes: Geoduck - Jo Gardener Stacie Hoskins
14 5/8/2014 Phone Message for Stacie: Geoduck Squamish Fred Nelson Sea Products Unknown
15 5/14/2014 Re: Jeff Co Response re Squamish Harbor Geoduck Proposal Sue Corbett
16 5/14/2014 Re: Letter dated 05-01-14 Stacie Hoskins
17 6/4/2014 BDN LLC Tjemsland Geoduck Farm Robert Smith
18 6/9/2014 RE: BDN LLC Geoduck Farm Stacie Hoskins
19 6/9/2014 RE: BDN LLC Geoduck Farm Stacie Hoskins
20 6/10/2014 RE: BDN LLC Geoduck Farm Robert Smith
21 6/16/2014 McCrae/Washington Shellfish Geoduck Operation | Parcel 821334073 | Squamish Harbor David Mann
22 6/17/2014 RE: BDN LLC Geoduck Farm David Johnson
23 7/10/2014 RE: McCrea Geoduck Operation Shine David Mann
24 7/10/2014 [Resent from Archiver] RE: Permits for Geoduck Stacie Hoskins
25 7/17/2014 Follow up t6o July 10, 2014 Correspondence Stacie Hoskins
26 8/28/2014 RE: Squamish Harbor geoducks Stacie Hoskins
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27 12/5/2014 Re: Geoduck Farms in Squamish Harbor Pamela Sanguinetti
28 1/20/2015 Re: JARPA Permit Information Request (UNCLASSIFIED)Pamela Sanguinetti
29 4/29/2015 Aquaculture Conference Call - Donna & Carl Anna Bausher
30 6/3/2015 COM??-00??? Squamish Harbor/Shine Road Aquaculture (Geoduck)Donna Frostholm
31 7/30/2015 July 1 Site Visit to Squamish Harbor Project Areas (UNCLASSIFIED)Marilyn Showalter
32 8/27/2015 RE: Squamish Harbor Aquaculture (UNCLASSIFIED)Pamela Sanguinetti
33 9/21/2015 RE: BDN Geoduck Farm Richard Mraz
34 12/19/2016 NWS-2013-1268 | BDN, LLC | (Smersh Lease)Pamela Sanguinetti
35 1/3/2017 NWS-2013-1268 | BDN, LLC | (Smersh Lease)Pamela Sanguinetti
36 2/9/2017 FW: Following Up on Meeting with Shine Residents, October 21, 2016 Patty Charnas
37 3/5/2017 Shine Road, Squamish Harbor Jan Wold
38 3/6/2017 Shine Geoduck Commercial Development Tom Giske
39 3/8/2017 Fwd: Land Use Violation Parcel #970200001 Patty Charnas
40 3/14/2017 NWS-2013-1268 | BDN, LLC | (Geoduck Farm)Pamela Sanguinetti
41 3/21/2017 FW: Geoduck Farming Squamish Harbor Photos Philip Morley
42 3/29/2017 BDN Shine Road Geoduck Aquaculture Farm Robert Smith
43 3/29/2017 Why Canceled, Withdrawn, Incomplete, and Inaccurate JARPAs Preclude Assertion of Vested Rights Marilyn Showalter
44 4/21/2017 BDN Shine Road Geoduck Aquaculture Farm - Shoreline Conditional Use Permit Requirement David Greetham
45 4/26/2017 BDN Shine Road Geoduck Aquaculture Farm Robert Smith
46 4/28/2017 RE: BDN Shine Road Geoduck Aquaculture Farm - Shoreline Conditional Use Permit Requirement - Code
Interpretation
Patty Charnas
47 12/15/2017 BDN Supplemental Brief Kenneth A. Sheppard
48 12/19/2017 County Response to Supplemental Brief Philip Hunsucker
APPELLANT’S SUPPLEMENTAL BRIEF - 1
999 THIRD AVENUE, SUITE 2525
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(206) 382-2600 FAX: (206) 223-3929
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BEFORE THE HEARING EXAMINER FOR JEFFERSON COUNTY In Re: Appeal of BDN Shine Road Geoduck Aquaculture Farm of Jefferson County Code Interpretation
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No. MLA17-0011 APPELLANT’S SUPPLEMENTAL BRIEF
INTRODUCTION
At the end of the November 21st hearing, the Examiner left the record open for
submission of additional materials until December 15, 2017. Accordingly, appellant submits
this additional brief, in light of arguments made by the County at the hearing.
ARGUMENT
1. The Statutes relating to vested rights for building permits and subdivision
applications do not abrogate the common law concerning vested rights. The County
insists that “no vestige of common law vesting rights survived the codification”. (Jefferson
County Concluding Statement – Section IV.) It cites Potala Village, 183 Wn. App at 205, for
this proposition, asserting that the Court of Appeals concluded in that case that the common
law vested rights doctrine had been entirely abrogated by the vesting statutes enacted in 1987.
The county derides BDN’s contrary argument as BDN “hanging on by its fingernails” because
it is based solely on footnote 2 in the Snohomish case. This is not the situation at all.
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2. The Washington Supreme Court has recognized the common law basis for the
vested rights doctrine, and has continue to apply it after the 1987 vested rights statutes
were enacted. Long after the enactment of RCW 19.27.095 and RCW 58.17.033, the
Washington courts have continued to recognize the common law and constitutional basis for
the Washington vested rights doctrine, and have continued to apply it to cases involving other
types of land use regulation apart from the traditional building permit situation. (East County
Reclamation Company v. Bjornsen, 125 Wash.App. 432 (2005): “The vested rights doctrine is
‘based on constitutional principles of fundamental fairness, reflecting an acknowledgement
that development rights are valuable and protectable property rights.’”)
Specifically, in Department of Ecology v. Theodoratus, 135 Wash.2d 582 (1998), the
Washington Supreme Court held that vested rights applied to a water right application to the
DOE, which was very clearly not a building permit:
George Theodoratus had a water right application approved by Ecology
for a development he planned to build. Id. Ecology's “Report of
Examination” approving his application had language purporting to create
a vested water right based on his development's capacity for water so long
as it was built by a particular date. …[We] held that the relevant statutes
and our common law left no doubt that Theodoratus's vested water rights
must be based on beneficial use—not system capacity. Id. at 590, 957 P.2d
1241. (emphasis supplied.)
The Potala Village panel of the Court of Appeals did indeed opine that it believed the
common law vested rights doctrine had been entirely abrogated by the statutes enacted for
building permits and subdivisions. To reach that conclusion, it examined the legislative
history of the vested rights statutes, and although the legislature did not explicitly state that
the statutes abrogated the common low doctrine, the Potala court concluded that because “the
legislature was aware of the common law origins of this doctrine, …[and] chose to codify the
vested rights doctrine, but only to the extent of building permits…”, the legislature must have
intended to entirely abrogate the prior common law. (Potala at 205.) This conclusion,
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however, is directly contrary to the standards for statutory derogation of the common law as
applied by the Washington Supreme Court.
In Potter v. Washington State Patrol, 165 Wash 2d, 68 (2008), the Washington
Supreme Court gave a very succinct description of the very limited circumstances in which a
statute will completely abrogate the common law on which is may be based:
In general, our state is governed by the common law to the extent the common
law is not inconsistent with constitutional, federal, or state law. RCW
4.04.010.7. The legislature has the power to supersede, abrogate, or modify
the common law. See State v. Estill, 50 Wash.2d 331, 334–35, 311 P.2d 667
(1957); State v. Mays, 57 Wash. 540, 542, 107 P. 363 (1910). However, we
are hesitant to recognize an abrogation or derogation from the common law
absent clear evidence of the legislature's intent to deviate from the common
law. “It is a well-established principle of statutory construction that ‘[t]he
common law ... ought not to be deemed repealed, unless the language of a
statute be clear and explicit for this purpose.’ ” Norfolk Redevelopment &
Hous. Auth. v. Chesapeake & Potomac Tel. Co. of Virginia, 464 U.S. 30, 35–
36, 104 S.Ct. 304, 78 L.Ed.2d 29 (1983) (alterations in original) (quoting
Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cranch) 603, 623, 3 L.Ed.
453 (1812) (emphasis supplied.)
In the Snohomish case, Division II of the Court of Appeals addressed the “purely statutory”
argument, and noted that:
The vested rights doctrine originated at common law, but the legislature has
codified the doctrine with regard to building permits (RCW 19.27.095(1)),
subdivision applications (RCW 58.17.033(1)), and development agreements
*329 (RCW 36.70B.180).7 A question exists as to whether the vested rights
doctrine now is purely statutory or continues to evolve in the common law.
The Supreme Court in Town of Woodway stated without discussion that “the
vested rights doctrine is now statutory.” 180 Wash.2d at 173, 322 P.3d 1219.
Division One of this court also has held that the vested rights doctrine is
purely statutory. Potala Vill. Kirkland, LLC v. City of Kirkland, 183
Wash.App. 191, 203–214, 334 P.3d 1143 (2014) (discussing the evolution
of the vested rights doctrine and applying its holding that the doctrine is
purely statutory). The appellants limit their arguments to the vested rights
statutes, and none of the parties argue that we should address any common
law vested rights doctrine. Therefore, we analyze only the vested rights
statutes.
Thus, the Court of Appeals stated that the statutes codified the vested rights doctrine only
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with respect to building permits and subdivision applications, and specifically declined to
address whether or not the entire doctrine was now purely statutory. Thus, when the
Snohomish case came to the Washington Supreme Court, it provided the perfect opportunity
for the Court to hold that the common law had been abrogated, if that was what the Court
concluded. But the Court specifically declined to so hold.
We contend that this was a very conscious decision by the Court not to foreclose the
application of the vested rights doctrine to situations, such as ours, that are clearly land-use
decisions, but do not fall within the traditional building permit or subdivision realm. The
Snohomish Court clearly stated that it viewed the key issue in vested rights analysis as
whether or not the matter was a land use decision that would be altered ex-post-facto by
changes in the applicable law. We contend the Court intended that such cases not be
foreclosed by the “purely statutory” argument, but rather that they be considered on their
merits on a case-by-case basis.
If our case is so considered, we contend it should be held to be subject to the vested
rights doctrine.
3. RCW 36.70B applies to this situation, and binds the County. This statute
applies to “any land use or environmental permit or license required from a local government
for a project action, including but not limited to building permits, subdivisions, binding site
plans, planned unit developments, conditional uses, shoreline substantial development
permits, site plan review, permits or approvals required by critical area ordinances, site-
specific rezones authorized by a comprehensive plan or subarea plan, but excluding the
adoption or amendment of a comprehensive plan, subarea plan, or development regulations
except as otherwise specifically included in this subsection.” RCW 36B.202 (4).
RCW 36.70B.070 requires that within 28 days after receiving an application, the
County must determine whether or not an application is complete, and to so notify the
applicant. If further provides at .070(4)(a) that “An application shall be deemed complete
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under this section if the local government does not provide a written determination to the
applicant that the application is incomplete as provided in subsection (1)(b) of this section.”
No such notice was ever provided by the County. Thus, it cannot now argue that the
JARPA it received was somehow incomplete.
Moreover, RCW 36.70B.180 is noted by the Snohomish Court as applying vested
rights to such applications, and such vested rights should be applied to BDN’s situation.
CONCLUSION
Yet again, a fair and accurate reading of Snohomish, and all of the cases cited by the
County, leads to the inescapable conclusion that the Snohomish Court would conclude that
vested rights apply to the BDN JARPA’s, such that no County Permit is, or can be required in
this case.
DATED this 15th day of December, 2017.
SIMBURG, KETTER, SHEPPARD & PURDY,
LLP
By: _____________________________________
Kenneth A. Sheppard, WSBA # 5899
Attorneys for Appellant BDN
1
Nicole Allen
From:David Greetham
Sent:Tuesday, December 19, 2017 2:23 PM
To:Nicole Allen
Subject:FW: In Re: Appeal of BDN Shine Road Geoduck Aquaculture Farm Code Interpretation
Attachments:2017 12 15 Appellant Supplemental Brief.pdf
FYI
From: Philip Hunsucker
Sent: Tuesday, December 19, 2017 2:18 PM
To: Jenny Pelesky (j.pelesky@mchlawoffices.com) <j.pelesky@mchlawoffices.com>
Cc: Terri Tyni <terri@plauchecarr.com>; Robert Smith <robert@plauchecarr.com>; Ken Sheppard
<KSheppard@sksp.com>; David Greetham <DGreetham@co.jefferson.wa.us>
Subject: RE: In Re: Appeal of BDN Shine Road Geoduck Aquaculture Farm Code Interpretation
Dear Hearing Examiner Causseaux:
Jefferson County (“County”) has received the Appellant’s Supplemental Brief (attached for
convenience). Appellant’s Supplemental Brief does not and cannot dispute that the 2016 JARPA was the operative
application on which the Army Corps issued its approval under the Nationwide Shellfish Permit or that the 2016
JARPA was never submitted to the County. Nor does it address the County’s argument that an SMP permit required
by the state is not the type of permit the common law vested rights doctrine was designed to address. Accordingly,
the County will not be submitting a responsive brief.
Thank you for your attention to this matter. The County will await your final decision.
Philip
Philip C. Hunsucker
Chief Civil Deputy Prosecuting Attorney
Jefferson County Prosecuting Attorney’s Office
P.O. Box 1220, Port Townsend, WA 98368
Ph: 360‐385‐9180 Fax: 360‐385‐0073
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.