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HomeMy WebLinkAbout02 February JEFFERSON COUNTY BOARD OF HEALTH MINUTES Thursday, February 17,2000 Board Members: Dan Harpole, Member - County Commissioner District #1 Glen Huntin¿ford, Member - County CommÙJioner Di.rtrict #2 Richard IF'qjt, Member - County Commissioner District #3 GeoJfrry Ma.rá, Member - Port TownJend City Counál Jill Buhler, Vice-Chairman - Hospital Commis.rioner District #2 Sheila W'esterman, Member (Ci!y) Robe11a Frimll, Chairman, Citizen at La¡;ge (County) Staf/Members: Jean Baldwin, Nursing Services Director Larry Fqy, Environmental Health Director Thomas Locke, MD, Health Ojficer Chairman Frissell called the meeting to order at 1:37 p.m. in the auditorium of Jefferson General Hospital. All Board and staff members were present with the exception of Commissioner Harpole. APPROVAL OF MINUTES Commissioner Wojt moved to approve the minutes of the January 20, 2000 meeting. Member Masci seconded the motion which carried by unanimous vote. PUBLIC COMMENTS -- None OLD BUSINESS Syringe Exchane:e Program Update: See written report. Foodborne Illness Investigation: See written report. Dr. Tom Locke said attempts to get legislators to approve the creation of a state fund to cover outbreaks of foodbome illness and other public health emergencies have been unsuccessful. Food Safety Inspector Susan Porto is interested in looking at food handling in service clubs, but a higher priority is getting the message out to unregulated organizations. Immunization Exemption Update: See interim report. Draft Letter Re: Transit Cutbacks: Member Masci recommended the draft letter be withdrawn and instead be brought before the Joint Meeting of the Board and the Jefferson General Hospital Commission. HEALTH BOARD MINUTES - February 17,2000 Page: 2 NEW BUSINESS HIV Testim! and Counseling Plan: Jean Baldwin reviewed the information packet explaining the current testing and counseling services component of the HIV Prevention Plan adopted by the Board a few months ago. Walk-in clinics have been replaced by phone screening. Those determined to be at risk continue to receive testing and counseling. Approximately 44 people a year who receive County HIV testing and counseling are using needles. That number reflects a need to talk about needle exchange and shows the department is close with its testing and counseling approach. Dr. Locke reviewed the confidential and reporting procedures. Legislative Update. Year 2000 Session: Dr. Locke said if there is a restoration of the public health funding lost through the MVET repeal ($85,000 for Jefferson County), it is likely to come from the Health Services Account that functions mainly to support the Basic Health Plan. Although there is heavy lobbying occurring, it is expected there will be a proposal to stretch the $26.4 million on the Tobacco Prevention and Control Plan funding over more years and decrease the effectiveness of the plan. Representative Parlet is threatening to hold all health bills hostage in her house committee until the Senate passes the Health Insurance Bill (SB 6067) as a long-term fix. Even if SB6067 is passed, there is skepticism that it will make a difference for rural areas. The Water Quality Monitoring Bill (HB2929) would require anyone doing surface water monitoring who discovers a violation of body contact standards to report the violation to the local health department. Notification of all the utilities customers, as well as a posting of the violation area, would follow. There are attempts to modify this bill. Agenda Planning - Year 2000 W orkplan: The Board agreed to the following draft calendar. Other items to schedule: Birth to Age 3 Funding, On-Site Sewage Regulations, Solid Waste Regulations, Needle Exchange Program, and Review of Best Beginnings. April or May: May: Mayor June: June: July: August: State Board of Health Director, Mary Selecky Visit Review Draft Policies on Minimum Land Area and Building Additions/Remodels Food Safety Program Outreach and Education Efforts Pre-budgeting Intensive Program Review/Update Review Draft of the Solid Waste Ordinance State Board of Health Update Appeal Hearinl! - Rav and Liann Vines: Following introductions, Chairman Frissell clarified the issues before the Board as: 1) whether the Health Department was correct in denying the permit for Mr. Vines' on-site sewage system, and 2) if there is a precedent for on-site sewage systems serving commercial establishments being permitted on residential property? Larry Fay reviewed the list of materials that came to the Board of Health since the last meeting. Thirteen exhibits presented by Mr. Vines' Attorney Dennis Reynolds at the last meeting, Hearing Memorandum dated February 9 on behalf of the Board of Health, Mfidavit of David Alvarez, Appellants' HEALTH BOARD MINUTES - February 17,2000 Page: 3 Supplemental Brief, Declaration of David Jensen, P .E., and Memorandum from Mr. Fay related to Exhibit 7 A, B, and C, and a copy of the zoning map at the time those applications were processed. Introduction of Issue: Mr. Reynolds, stated the issue is the denial of a septic system approval. The application was amended to serve an auto detail shop, but the application was for a larger septic system that would have sufficient capacity to serve not only the auto detail shop, but an addition to that building. This proposed commercial building would be located on Lot 1, which is zoned commercial. The Vines have not heard a reason for the denial other than there is a conflict in the zoning code. Planning Consultant Testimony: Rick Sepler provided background on the consulting experience of his firm Madrona Planning. Although they are not sanitarians, he said they have defined expertise in land use matters and often deal with location of sanitary drain fields serving under their perview. He is aware that an issue was raised regarding the previous variance for the Vines' site. His firm prepared the variance application in 1997 which was denied and dealt largely with setbacks. Although the project has changed and many of the reasons are still valid, they are not germane to the issue. Mr. Sepler referred to his letter and analysis dated January 12, 2000 as to whether the establishment of a drain field outside the area has an impact on the integrity of the residential zone. He does not believe the permit should be denied on a land use basis because a specific prohibition has not been identified. There is precedence of development that allows it to occur such as Circle and Square, Swan Market and Paradise Interiors. He has been unable to identify an impact and believes it would be no more intensive than a drain field that could be permitted for a single family home. He recommended that the County designate all of the existing drain fields in Jefferson County which serve in a critical zone and are located in residential as pre-existing, non-conforming uses. If the systems fail, the County would be faced with the challenge of whether they would be allowed to rebuild. Commissioner Wojt said the scale of the project they wish to build demands that they have that lot, it is not an issue of whether they can or cannot build. Mr. Sepler responded that most jurisdictions do not use septic provisions as a way to limit intensity of development. Typically, they would advise any of their jurisdictional clients to accept density at buildout and permit the buildout based on what zoning allows. If the County chooses to make a premise that one would use intensity of development as limited by what is available by sanitary, you are at risk of new technology which may allow more intensity. Mr. Reynolds referred to Larry Fay's memorandum dated February 9, 2000. He asked Mr. Sepler if he is familiar with the intent of 1998 zoning amendments to the Jefferson County Code and whether their intent was to accommodate all existing commercial uses in the Tri Area? Mr. Sepler said there were findings to that affect. Mr. Reynolds asked Mr. Sepler what the implication is, then, for the decision for this Board to make in terms of the land use issues? Mr. Sepler said the implication was that the drain fields were not commercial areas, otherwise they would have been included. HEALTH BOARD MINUTES· February 17,2000 Page: 4 Deputy Prosecuting Attorney David Alvarez asked whether the buildings proposed by Mr. Vines would require a commercial septic system as opposed to a residential septic system? Mr. Sepler said, depending on estimated use, they often use the equivalent residential units for commercial projects. There are others that would have greater impact. Typically, those are addressed at the time of development. Member Buhler asked whether the septic systems that Circle and Square and Swam Farms used were placed on residential lands? Mr. Sepler said he believes they were and certainly are now on residentially-zoned land. As to whether, at the time of permitting, it was zoned residential or commercial, he said Mr. Fay's memorandum specifies what he believes was the zoning at the time, with at least one being residentially zoned. The Board reviewed the zoning map adopted with the 1994 Interim Growth Strategies Ordinance. Mr. Fay said although the use tables varied, the maps did not change over time. Mr. Reynolds asked, since the Board specifically requested guidance and precedence, to admit Exhibit #14 -- the highlighted map adopted August 28, 1998. Member Westerman asked that the zoning boundary for Circle and Square, referred to in Larry Fay's memorandum dated February 9,2000, be clarified. Larry Fay explained that the reason he stated the zoning boundary was uncertain was that he did not believe it had been surveyed. He did not have information from an actual survey. The zoning boundary splits the lot and it appears to be more or less equally split between residential and commercial zones. Mr. Scalf concurred with Mr. Fay. Member Westerman stated it is possible that part of the septic system is on the residential, but it is not known for certain. Mr. Reynolds said that in Exhibit 7 A, B, C, where there are denominations of the zoning which support their position, the septic is placed on residential for these projects. He asked Mr. Sepler to comment on split lots such as Circle and Square. Mr. Sepler commented that split lots are being practiced to avoid the erosion of the zoning district and to allow intensive use of the lot. The zoning demarcation does come down and for the purposes of zoning, we would consider the area that was assessed for commercial land to be inside that boundary. He is sure the build-out analysis did not include those areas outside of that boundary that were contiguous or undivided. Commissioner Wojt referred to the case of Walter Moa who was seeking an amendment because the project he wanted to do was not allowed because he had to deal with septic on an adjacent property that he also owned. The property was redesignated as commercial land in order for a system to be installed. HEALTH BOARD MINUTES - February 17,2000 Page: 5 Larry Fay said the system that is currently permitted for Lot 1 is a pressure distribution system. Member Masci asked whether the Swan Farms plot was more analogous to Mr. Vines' situation as opposed to Circle and Square, which straddles? Mr. Sepler said it could be, but there is some confusion in tracking the maps. Since there have been many changes in the zoning, they cannot answer with 100% confidence that at the time it was permitted that it was zoned commercial. It is their belief that it was, but there are inconsistencies. Mr. Reynolds asked Mr. Fay if the amended septic system, in terms of size or dimension, would normally serve approximately a four-bedroom residence? Mr. Fay responded that the application reflects a 1,500 gallon septic tank. If you were talking about residential, that it would be a large residence compared to a typical three-bedroom home with a 1,000 gallon tank. Although he cannot do a direct equivalency to a residential, he said it is conceivable that a home could have a 1,500 gallon tank with a drain field on that site. Testimony of Raymond Michael Vines: Mr. Reynolds asked Mr. Vines whether he is requesting Jefferson County for permission to consolidate Lots 1 and 2 of the platted Melwood Terrace for the purpose of enlarging the zoning for Lot 1; to approve an enlargement of the zoning district; or to amend the boundary for the current zoning for Lot 1 ? Mr. Vines responded no to all questions. The project envisioned to be served by the amended septic system is a small office building of an undetermined square footage. The proposed detail shop was approximately 1,600 square feet. If a second story were included it would be approximately 3,200 square feet. Mr. Reynolds asked why Mr. Vines is seeking to have the septic system placed in Lot 2 to serve the commercial building on Lot 1? Mr. Vines said the property is a triangle with extreme setbacks. When the County decided to down-zone the other two lots he owned, it created a setback of 25 feet from all directions except the front which is 35 feet. An engineer informed Mr. Vines that he did not believe he could get an office building on it the way it existed without using some of Lot 2. He indicated he is not asking for permission to place an above-ground structure on Lot 2 and never has. Mr. Reynolds asked if Lot 2, as it is presently configured, is buildable? Mr. Vines responded it is unbuildable because it is under 12,500 square feet. Although you could normally obtain a variance to get a drain field on such a lot, it sits over an aquifer recharge area and no variance is available. Unless he can utilize Lot 2 for a septic system to serve Lot 1, he has no economic use of Lot 2 at all. Mr. Reynolds said it has been alleged that Mr. Vines is somehow trying to overturn the zoning on Lot 2. He asked Mr. Vines if Lot 2 was ever zoned commercial? HEALTH BOARD MINUTES - February 17,2000 Page: 6 Mr. Vines said it was zoned commercial for 20 years until the downzoning in 1994 along with Lot 3 at the request of Bill Breitweg. Mr. Reynolds asked Mr. Vines if he was directed by County officials to attempt to rescind the covenants, conditions and restrictions (CC&Rs) for the platted Melwood Terrace as a condition of the County reconsidering giving the zoning back? Mr. Vines said the County was at risk of being sued because the CC&Rs did not allow commercial development on Lots 2 and 3. Mr. Huth advised James Holland he had better downzone them or he could get sued. So he told Mr. Vines that it was obviously a commercial property and he had no problem with that, but he had to get the covenants rescinded before they would restore the zoning. Mr. Vines said he was not successful at rezoning the covenants. Mr. Reynolds asked Mr. Vines if he sought to either rezone Lot 2 or try to develop Lot 1 to its maximum? Mr. Vines said yes, just before he went into court to try to get the covenants rescinded, a proposal for the new zoning was released and they proposed downzoning Lot 1 as well. He believes that had a great bearing on his not getting out of the covenants. He felt he needed to do something immediately with the property or it was going to be downzoned. Rick Sepler recommended that he try to obtain a setback variance. Mr. Vines said he never asked for a use variance on Lot 2. Mr. Reynolds asked Mr. Vines whether, in 1998, he secured an interpretation from the Planning Department that Lot 2 could be used for a septic system to serve a commercial use located in Lot 1? Mr. Vines said yes and it was stated in a letter dated August 12, 1998. Mr. Reynolds asked if Mr. Vines had any face-to-face meetings with Mr. Scalf regarding this septic application? Mr. Vines responded that he has had several meetings with Mr. Scalf and it has never been explained or any provision of the zoning code provided that prohibits use of septic on Lot 2. Mr. Alvarez asked Mr. Vines if he has permission to build an auto-detailing shop with the septic system on Lot 1? Mr. Vines said no, then yes. Eighteen months after he applied for the permit, he demanded that Mr. Scalf provide the status of his permit. Mr. Scalf assured Mr. Vines if he got a water reservation and a bond that the permit would be approved. Mr. Alvarez asked Mr. Vines if he had done those things yet? Mr. Vines said he attempted to get a water reservation, but at a cost of approximately $3,000, he was reluctant to pay it given that it could have been two more years before he received his permit. Mr. Vines HEALTH BOARD MINUTES - February 17,2000 Page: 7 said he chose not to tie up $3,000 when he might need it for legal fees. Everything the County has told him thus far has turned out to be untrue, so he was not going to rely on Mr. Scalf's statement. Member Buhler asked about Mr. Vines plans to consider putting a residential structure on Lot 3 with a septic system on Lot 2? Mr. Vines said he never really wanted to do that because he would not be able to sell it in that location. It was the only way to structure a plan that would please the County. He said he consulted with an engineer about putting a house on Lot 3. The engineer report stated it was feasible to get a drain field on Lot 2 for the house on Lot 3 as well as getting a commercial office on Lot 1. Member Buhler asked Mr. Vines if that project is still on the table? Mr. Vines said he would be happy to do that this if it means getting something on his property. The detail shop would just require a drain field, but any additives, for storm water for washing cars, are not going to fit. Mr. Reynolds asked Mr. Vines if that is why he needs the septic system placed on Lot 2? Mr. Vines responded yes. Mr. Reynolds asked Mr. Vines if he has heard of any other building permit applicant in Jefferson County that has been asked to provide the name of their contractor and a bond to the County just to get a building permit? Mr. Vines said no. Chairman Frissell said she had to supply the name of her contractor and prove that he was bonded. Mr. Reynolds said he is trying to present his testimony. He said he wants to make it abundantly clear that there are many things the citizens in Jefferson County are told is the "law" which are not in fact supported by enactments in the zoning code. Al Scalf Testimony: Mr. Reynolds asked Jefferson County Planning Director Albert D. Scalf whether a septic system is an allowable use in a residential zone in Jefferson County? Mr. Scalf responded yes. Mr. Reynolds asked if Mr. Scalf is aware of any provision in the zoning code that explicitly prohibits use of underground septic on a residential lot to serve a commercial use on an adjacent or adjoining lot? Mr. Scalf responded no. Mr. Reynolds asked if Mr. Scalf recalls Exhibit 5, a letter of August 12, 1998 to Prosecuting Attorney David Skeen, signed by Mr. Scalf on behalf of Mr. Vines? HEALTH BOARD MINUTES - February 17,2000 Page: 8 Mr. Scalf said yes. Mr. Reynolds asked if it is Mr. Scalf's opinion at the time of that letter, that the zoning code would allow Mr. Vines to use Lot 2 for septic to serve a commercial use on Lot 1? Mr. Scalf said no. Mr. Reynolds asked if, in the letter of August 12, 1998, the Planning Department agreed to an administrative waiver to allow a drain field to be established on Lot 2 of the plat to service a commercial structure? Mr. Scalf said yes. Mr. Reynolds asked Mr. Scalf if there is a published authority for the building department to require a copy of the license of the contractor and a surety bond in order to issue a building permit? And if yes, where is it published? Is it a rule or is it in the zoning code? Mr. Scalf said yes. He can only conjecture whether the provision is in the Uniform Building Code or the Jefferson County Building Code Provisions. Mr. Reynolds asked if it is his best understanding that it is a published requirement of law? Mr. Scalf said yes. Mr. Reynolds asked if a surety bond is run in favor of the County or to the public? Mr. Scalf said the public. Mr. Reynolds asked if there is anything more required of Mr. Vines other than the certificate of water availability to satisfy the building department? Mr. Scalf said the two items outstanding are the water approval and bond holder certificate. Mr. Reynolds said, in terms of water approval, his experience in statewide land use practice is that all that is required in Title 19, as well as in the Uniform Building Code, is a certificate of water availability. He asked if a certificate of water availability would be sufficient? Mr. Scalf said a commitment letter from the purveyor would be adequate. Mr. Alvarez asked Mr. Scalf to confirm that in the memo from Mr. Fay dated February 9, 2000 Circle and Square is a single parcel that happens to be divided by the zoning lines? Mr. Scalf said yes. HEALTH BOARD MINUTES - February 17,2000 Page: 9 Mr. Alvarez asked Mr. Scalf if, when the permit application for Paradise Interiors came in, that entire zone was commercial and if so, did that application come in while he was the Planning Director? Mr. Scalf said yes to both. Mr. Alvarez asked Mr. Scalf when the application for Swan Market came in, was that entire area owned by Swan Market and all of the lots commercial? Mr. Scalf responded yes. Mr. Alvarez asked if it is correct that since that time, there has been a tightening of the commercial boundaries along Rhody Drive? Mr. Scalf said yes. Mr. Alvarez asked if it is correct that tightening of the boundaries caused part of Paradise Interiors to be downsized so that it was outside the commercial zone? Mr. Scalf said that was Swan Market. He believes the Paradise Interiors' septic field is located towards Rhody Drive. Mr. Alvarez asked Mr. Scalf to confirm whether part of this downzoning was done along Rhody Drive because of the Comprehensive Plan? Mr. Scalf said yes. Mr. Reynolds asked Mr. Scalf if he recalls Mr. Sepler's testimony that the 1998 zoning amendments were made to accommodate all existing commercial uses in the Tri Area? Mr. Scalf said yes. Mr. Reynolds asked if the 1998 zoning amendments exclude drain fields or septic system. In other words, the County does not consider commercial drain fields to be commercial uses under the 1998 zoning code? Mr. Scalf said the 1998 zoning was referred to as the "built environment." They looked at structures, they did not inventory commercial drain fields. Mr. Reynolds restated his question and asked Mr. Scalf for his understanding of the intent of the code in addressing the 1998 amendments. Mr. Reynolds said it is his understanding that the amendments exclude supporting drain fields or septic. So the County does not consider commercial drain fields to be commercial uses under the 1998 zoning code? Mr. Scalf said that he would say, in hindsight, that the buildings should be included and so should the drain fields. HEALTH BOARD MINUTES - February 17,2000 Page: 10 Mr. Reynolds asked if the 1998 zoning amendments, as they were enacted, exclude commercial drain fields as commercial uses? Mr. Scalf said no. Mr. Reynolds asked if the 1998 zoning code accommodates all existing commercial uses in the Tri Area, including the supporting drain fields and septic? Mr. Scalf said yes. Mr. Reynolds said they are not declared nonconforming uses? Mr. Scalf said yes. Larry Fay said the Board has had an opportunity to review all of the exhibits presented. He believes most of the discussion has centered around whether or not placement of a septic system, intended for commercial use, on residential land, is contrary to the County zoning code. Staff is working under the direction of the Planning Department in their decision. He is unsure whether it is up to staff to second guess whether the Planning Department is correct in interpreting their own codes. The question is should staff be applying the recommendations, comments or property constraints which are indicated by the Planning Department. He has not heard any discussion that says staff should ignore the zoning code. Larry Fay directed the Board to David Alvarez's memorandum on the issue of compliance with zoning codes and land use regulations. As to the question of whether staff has ignored those considerations in the past, of the three examples presented as exhibits, he believes two were clearly contained within an area that was zoned for commercial use at the time the permit applications were submitted. The third one and the one that is a problem is the Circle and Square automotive shop and whether or not that one permit established a pattern of precedence. Larry Fay said in relationship to Lot 2, he believes Mr. Vines said he would not be able to get a permit to build a home. He is uncertain about the basis for that idea because the County is considering a septic permit for the commercial structure on Lot 2. He is not sure if he would be constrained from doing a residential system on Lot 2 because he does not have all the factors. Larry Fay said that given the land area policy adopted in 1997 and the site sizes in Melwood Terrace, Lots 1 and 2 would be combined by a boundary line adjustment, replatting or a notice to title. Typically a notice to title is recorded stating two lots are being combined for the purpose of septic permitting and no additional permits will be allowed. Commissioner Huntingford agreed that one of the maps in 1994 showed the two lots as commercial. Mr. Breitweg brought to the County's attention the fact that the CC&Rs did not allow those two lots to be zoned commercial. Mr. Vines admitted that he had tried unsuccessfully to get the CC&Rs changed. The question is whether we are going to allow the septic system to be placed on the other lot or not? Mr. Reynolds said he would be happy to give a report of written argument and try to answer the questions of Commissioner Huntingford or any other questions the Board may have to aid in their decision. HEALTH BOARD MINUTES - February 17,2000 Page: 11 Commissioner Wojt moved that the Board close the hearing with the exception of the additional information that Mr. Reynolds may be supplying. Member Masci seconded the motion for discussion. Member Westerman confirmed that at the next meeting there will be deliberation but no further public testimony. The motion carried by unanimous vote. Mr. Reynolds said he has a concern with Commissioner Huntingford's comment of the zoning history and will deal with it through Mr. Alvarez in a short declaration. He does not feel the history is particularly key to the issue before the Board. AGENDA CALENDAR / ADJOURN March: DELIBERATION -RAY AND LIANNVINES Meeting adjourned at 3:40 p.m. The next meeting will be held on Thursday, March 16 at 2:30 p.m. JEFFERSON COUNTY BOARD OF HEALTH 7 -1- /~-d/~e Roberta Frissell, Chairman 91£;'U~C \ _ . ;tfHUh2-Chair ~ntmgl.or Sheila Westerman, Member (Excused Absence) Dan Harpole, Member Please Publish one (1) time: Wednesday, February 16,2000 Bill: Jefferson County Commissioners P.O. Box 1220 Port Townsend, W A 98368 NOTICE OF HEALTH BOARD MEETING TIME/PLACE CHANGE The Jefferson County Board of Health has changed their regular monthly meeting scheduled for Thursday, February 17,2000, at 2:30 p.m., to Thursdav. Februarv 17.2000 at 1:30 D.m. at the Jefferson General Hospital Auditorium. Next month the regular schedule for this meeting will be resumed, which is the third Thursday of each month (March 16,2000) from 2:30 p.m. to 4:30 p.m. at the Health and Human Services Department. /rt~u.&:¿ .JIUUd.Q Roberta Frissell, Chairman Jefferson County Health Board -==:1r -¡¡~ Health & HU1,HH¡' Erin Lundgren BOee Office PO Box 1220 Port Townsend, WA 98368 Jf:-¡I.i¡'\..f:-" February 10,2000 To: Jefferson County Board of Health From: Tom Locke, MD, MPH, Jefferson County Health Officer Subject: Board of Health Meeting - Thursday, February 17,2000 The next meeting of the Board of Health will be held on: Thursday, February 17, 2000 1:30 - 3:30 PM Jefferson General Hospital Auditorium 3:30 - 5:00 PM Jefferson General Hospital Auditorium (Joint Meeting with Hospital District Board) Enclosed are a tentative agenda for this month's meeting, draft minutes of the last Board of Health meeting, agenda materials and the department's monthly media report. This month's agenda includes one action item. · New Agenda Item - "Follow-up Reports": This month we are in1roducing a new agenda item as part of our old business section. This section will contain follow-up reports related to issues that have already been discussed before the Board. Draft letters will also be included in this section. This month there are four follow-up reports concerning syringe exchange program development, the recent foodborne illness investigation, an update on immunization exemption rates among Jefferson County school-aged children, and a draft letter concerning impacts of ferry and transit cutbacks on access to out-of-area medical services. HHS staff will not make specific presentations on these items but will be available to answer questions. · JCHHS HIV Testing and Counseling Plan: Strategies for maximizing the benefits ofHIV testing and counseling have changed considerably in recent years. Nursing staff will present Jefferson County's current testing and counseling plan for HIV. · Legislative Update, Year 2000 Session: A number of bills with significant public health impact remain active before the legislature. These include efforts to improve access to individual health insurance, to prevent occupational needlestick injuries, and to mandate fluoridation of public water systems with more than 1000 connections. Of greatest interest and potential impact are two key budgetary issues - restoration of local health funding eliminated by repeal of the MVET and funding of the Washington State Tobacco Prevention and Con1rol Plan. The Governor has proposed that 90% of lost public health funding be replaced with a continuing appropriation from the State's general fund. This would effectively raise the Initiative 601 "lid" that limits state funding. The Legislature has been highly sympathetic to the need for restored funding but a number of leaders feel it should be drawn from the Health Services Account (and largely funded by Tobacco Settlement dollars). Washington's current tobacco prevention plan calls for an aggressive program costing $26.4 million per year for four years. Modification of this appropriation to s1retch funding over a 10 year period (at $12.3 million per year) is being discussed. Based on evidence gathered in three other states, this reduced funding is predicted to decrease the benefits of the program by 50%. HEALTH DEPARTMENT 360/385-9400 ENVIRONMENTAL HEALTH 360/385-9444 DEVELOPMENTAL DISABILITIES 360/385-9400 ALCOHOL/DRUG ABUSE 360/385-9400 FAX 360/385-9401 · Agenda Planning - Year 2000:. Developing a 6 month planning calendar of issues and their Board hearing dates would be extremely helpful to public health and environmental health staff. A format for this will be discussed at the February Board meeting. The process for final review and adoption of the on-site sewage regulations await scheduling. Design and implementation of a needle exchange program is also a good candidate for inclusion in the Year 2000 workplan. · Continuation of Appeal Hearing - Ray and LiannVines: (Action Item) (Please see enclosed material). Mr. and Mrs. Vines are appealing the denial of a redesign of their already-approved onsite septic system (SEP98-0007). The redesign was denied based on conflicts with county zoning regulations. This appeal hearing has been continued from the Boards January 20,2000 meeting to allow Board members adequate time to review the many documents submitted as evidence. Documents submitted by Mr. Dennis Reynolds, attorney for Mr. and Mrs. Vines are included with this packet. An affidavit and hearing memorandum submitted by Mr. David Alvarez are also included. Mr. Alvarez will be present at the hearing in his capacity as County attorney and will be available to answer questions concerning legal procedures and process. · Joint Meeting of the Jefferson County Board of Health and Jefferson General Hospital Commission: The third of four scheduled joint meeting with the Jefferson General Board of Hospital District Commissioners will be held from 3:30 PM to 5:00 PM. A draft agenda for this meeting is included in this packet. If you have any questions regarding the enclosed agenda, or anv additions to the agenda. please call me at 385-9448. JEFFERSON COUNTY BOARD OF HEALTH Thursday, February 17,2000 1:30 - 3:30 PM Jefferson General Hospital Auditorium 3:30 - 5:00 PM Jefferson General Hospital Auditorium (Joint Meeting with Hospital District Board) AGENDA I. Approval of Minutes of Meeting of January 20,2000 II. Public Comments III. Old Business 1. Follow-up Reports A. Syringe Exchange Program Update B. Foodborne Illness Investigation C. Immunization Exemption Update D. Draft Letter Re: Transit Cutbacks IV. New Business 1. JCHHS HIV Testing and Counseling Plan (10 min) Nursing Staff 2. Legislative Update (10 min) Tom 3. Agenda Calendar- Year 2000 Workplan (30 min) Tom 4. Appeal Hearing - Ray and Liann Vines (60 min) Larry V. Joint Meeting with Jefferson General Hospital Board of Commissioners (90 min) VI. Adjourn Next Meetin!:: March 16,2000 Joint Meeting Jefferson General Board of Hospital District Commissioners and Jefferson County Board of Health February 17, 2000 3:30 - 5:00 PM DRAFT AGENDA I. Review planned agenda II. Description of services and strategies at Jefferson General Hospital including rationale/implications of employing physicians III. Discussion about level of service framework How can we manage, demand and respond to need within fixed resources? IV. Health Department presentation on essential services for community health V. Review opportunities for local demonstration projects for financing service delivery VI. Questions/discussion about family planning services/Jefferson County Health Department ~~EFFERSON COUNTY BOARD OF HEALTH O~~y \ MINUTES Thursdav, Januarv 20, 2000 ~ ., StafflHembers: Jean Baldwin, Nursing Senices Director Larry Ft!)', EmÙonmenta! Health Director Thomas Locke, lV1D, Health Officer D~4~,. Board lV[embers: Dan Harpole, lVIember - Cottnry Commissioner DiJtrzd # 1 Clen Huntingfòrd, ¡"'([ember - County Commissioner District #2 Richard f~'o/t, Chairman - County Commissioner District #3 Ceriffrl!)' A1asci, A{ember - Port Townsend Ci!} Counc'il Jill Buhler, ¡\-1ember - HOjpital CommiJJioner District #2 Sheila Westerman, Citizen at Large (City) Roberta Frissell, Vice-Chairman, Citizen at Large (Coun!J) Chairman Wojt called the meeting to order at 1:38 p.m. All Board and staff members were present with the exception of Member Buhler. ELECTION OF 2000 CHAIR AND VICE-CHAIR Member Westerman moved to elect Roberta Frissell as Chairman. Member Masci seconded the motion, which carried by unanimous vote. Commissioner Harpole moved to elect Jill Buhler as Vice Chairman. Member Masci seconded the motion, which carried by unanimous vote. APPROVAL OF .MINUTES Member Masci moved to approve the minutes of the December 16, 1999 meeting. Commissioner Harpole seconded the motion which carried by unanimous vote. PUBLIC COM1\fENTS Dr. Tom Locke introduced Guest, Samantha Hawk who is observing the meeting. She is entering medical school and considering a career in public health. OLD BUSINESS -- None NEW BUSINESS Environmental Health Policy on BuiIdin~ Additions. Repairs. and New·Construction: Larry Fay said this agenda item is a follow-up to an issue that came before the Board of Commissioners in December 1999. Additional infonnation was requested on the appropriateness of looking at septic systems and to what degree the County inspects and evaluates older septic systems in conjunction with building pennit applications. The County has attempted to tie the current policy together with the 95 - HEAL TH BOARD MINUTES - January 20, 2000 Page: 2 State On-Site Sewage Regulations that broaden the definition of "expansion" without formally developing a clear policy statement. Larry Fay eXplained that difficulties arise when a penn it application triggers a septic system inspection for an activity that may not be directly associated with the septic system. The inspection ensures construction is within the design capacity of the current on-site sewage system and determines there is an adequate reserve area. The two issues that need clarification in the policy are what information the Health Department needs so that staff can make a decision on the building permit and how to obtain that information. Member Westerman asked why owners would be surprised that the septic is reviewed? Since the County is on the way to state-mandated O&M maybe it could be explained that a building permit is one of several actions that triggers an inspection. Larry Fay said most people understand the practical need for an inspection to establish a functioning system. He does not think it is unreasonable to establish base line information, however, there is no clear identifying policy that specifies what infonnation is necessary to make a decision about the building permit. Commissioner Harpole said he would like to see some distinction on the building permit between two types of situations: 1) verification that the permit has no connection with the drain field, and 2) a higher level of review for projects directly impacting the septic system. He asked if in the first situation the ovvner could be required to submit documentation demonstrating placement and other information that would satisfy the department. Larry Fay said most of the permits are not linked to immediate building plans but to property transactions. If there is a good chance the system is never going to get built, how urgent is a permit compared to a situation where someone already has the equipment on the property. Commissioner Huntingford asked about the possibility of soil logs? He does not believe the County is able to offer any security that property owners are going to be able to build. Larry Fay said the County should be able to come up with some reasonable statement about the soil based on current standards and whether or not they are permittable. The question is how to create a dependable process for all the parties involved. He feels it would be helpful to identify the level of assurance people need before buying property. Member Masci asked about the possibility of privatizing the verification and evaluation of septic systems? Larry Fay said the work of a state-licensed engineer is not accepted unquestioned. The County needs to verify that the design is appropriate for the limitations of a site. He believes there is a significant HEALTH BOARD MINUTES - Januarv 20, 2000 Page: 3 percentage of designs that get returned for revisions to the design or based on a disagreement of their evaluation of the site. Commissioner Huntingford asked what authority the County has over any of those designers or engineers if they are licensed by the State? Larry Fay said County staff must be licensed or certified to do the work with at least the same competency as the licensed designer. Anybody that is going to be reviewing designs and issuing permits will have to demonstrate those qualifications. If there is a complaint, it goes to the Board of Registration for Professional Engineers which will make a decision based on their review of the work that person has done. Member Westerman said people believe ifthey have a permit, they are set forever. However, if development occurs and people put in curtain drains, soils can change. Short-term assurance might be possible dependent upon mother nature and the building patterns around the property. Commissioner Huntingford suggested coordinating the inspection ofthe system with the owner so that they do not have to reschedule filling after the inspection. Appeal Hearin¡: _ Ray and Liann Vines: Attorney Dennis Reynolds introduced himself, 'as well as Ray Vines and Dave Jensen from D.R. Strong Engineering. Mr. Reynolds said he filed a motion to vacate the prior decision of the Board of Health, made December 16, 1999, on the basis that they did not receive notice of the hearing. Larry Fay verified that notice did not go out. Commissioner Huntingford moved to void the Board of Health's action of December 16, 1999 to deny the appeal of Mr. Vines. Chairman Frissell seconded the motion, which carried by unanimous vote. Mr. Reynolds stated that under the Appearance of Fairness Doctrine, ex parte communications are prohibited. He is aware of a letter from David W. Alvarez Civil Deputy Prosecuting Attorney dated November 18, 1999, addressed to the Jefferson County Board of Commissioners which addresses Mr. Vines' situation. The letter was provided prior to the appeal filed on or about December 3, 1999. They are obligated to bring this issue to the attention of the three Board members who also serve as County Commissioners. He asked that on this appeal they disqualify themselves on the basis of that ex parte communication. Larry Fay said a Health Board quorum is four members, of which two must be County Commissioners. Mr. Reynolds suggested that this matter be moved to an independent hearing examiner for a final decision. He raised the additional concern of whether a decision of the existing Jefferson County hearing examiner is binding? His recommendation is to use a visiting hearing examiner of Clallam or Kitsap County. HEAL TH BOARD MINUTES - January 20, 2000 Page: 4 Dr. T?m Locke com~ented that it is not an option for the Board to delegate their authority to a hearing exam mer. The authorIty of the Board of Health rests only with the Board of Health. Conflicts of interests happen routinely throughout the State. The duties of County Commissioners and Boards of Health overlap on a number of issues. Dr. Locke recommended taking note of Mr. Reynold's objections and moving forward with the appeal. David Alvarez said that in light of the fact that he wrote the letter, he does not know if he can give advice in that regard today. Although he is not sure whether he represents the Commissioners, he pointed out that a letter to Mr. Reynolds and the Commissioners is not in secret and may not be an ex parte communication. Commissioner Wojt asked Commissioners Harpole and Huntingford whether any communication that they have had with anyone concerning this.issue is going to color their judgment of the decision to be made on the hearing today? Commissioner Harpole responded that from what he understands of the specifics of this appeal, he would not be influenced. Commissioner Huntingford said he does not believe Mr. Alvarez's letter would cause a problem for him at all. He feels all of the Commissioners are aware of Mr. Vines' situation with his lots and have been for some time. He believes all the Commissioners have met with Mr. Vines on different occasions -- maybe not specifically to the septic concerns, but with regard to Mr. Vines' property, in general. Commissioner W ojt agreed that given all the information he has reviewed, he does not feel he will have problem in dealing with this fairly. Mr. Reynolds asked that Mr. Alvarez's letter be stricken. It is his understanding it largely deals with prior zoning and other decisions that are not before the Board of Health and does not address the septic application. Larry Fay reviewed the list of attachments in the packet. The package that constitutes the staff report is essentially the same as what was prepared in the December meeting and did include the letter from David Alvarez. Commissioner Wojt asked to verify that the question before the Board of Health is whether the system could be put on Lot 2 and meet health conditions without regard to the fact that the location is what is really in question? Mr. Reynolds said they are prepared to present testimony that the septic application meets all the health requirements and would not pose a threat to public health and safety if placed on Lot 2. They are also prepared to address the issue that use of Lot 2 is permitted under the zoning code. They understand that zoning was the only reason for the denial. HEALTH BOARD MINUTES - Januarv 20, 2000 Page: 5 Larry Fay said placing the system on Lot 2 is not a constraint of on-site sewage regulations, either at the State level or in the County code. The constraint has to do with whether the placement of that commercial system on the residential lot is compatible with the County land use requirement. The essential question before the Board of Health is to determine whether staff was correct in applying the zoning standards. Commissioner Wojt asked if this is the place for this issue to be decided? Ifthe system could be placed on Lot 2 and meet the health standards, then it is no longer a question of whether the Health Board has jurisdiction. It is a land-use decision for the hearing examiner. Larry Fay responded that the decision to issue the septic permit is a Health Department decision. An appeal of a septic permitting decision is a subject for the Board of Health. Is it a question of the correctness of the zoning decision or the interpretation of the zoning code, or is it a question of how staff has applied an apparent zoning restriction to not issue that pennit? He believes it is the latter. Mr. Reynolds said his client is willing to take this issue to the hearing examiner. The only concern is that this is the only appeal process available on septic pennitting. Member Westennan said she is uncomfortable moving forward in the discussion of this process without legal counsel especially with regard to the process and ramifications of striking a letter from counsel. Member Masci said the legal counsel for the Board of Health would be the Jefferson County Prosecuting Attorney. So, as he understands it, Mr. Alvarez's letter is privileged communication between attorney and client. He feels it is an advisory letter and that is how he interpreted it when it was included in the process. Member Masci feels striking Mr. Alvarez's letter is not relevant to the matter at hand today. Dr. Locke reiterated that the fundamental decision the Board of Health has to make in an appeal hearing is whether there was an error in the interpretation and application of the law as it involves this case. Commissioner Harpole said the issue is whether or not Health Department staff was correct in their interpretation. He asked Mr. Reynolds to state why his client feels the staff decision was incorrect. Mr. Reynolds said he would like a ruling on a motion to strike the letter. Member Masci moved to consider the Deputy Prosecuting Attorney's letter as advisory only. Chairman Frissell seconded the motion, which carried by unanimous vote. Mr. Reynolds reviewed a list of 13 Exhibits one of which is Mr. Reynolds' letter to Mr. Alvarez, dated January 14,2000 (Exhibit 13). He asked that his letter be treated as advisory only. Larry Fay said the Board members do not have the entire packet to which Mr. Reynolds is referring. HEAL TH BOARD MINUTES - January 20, 2000 Page: 6 Commissioner W ojt confirmed that two complete exhibit packets were received. One will be retained by the Health Department, the other by the Scribe. Mr. Reynolds explained the exhibits. Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8 Exhibit 9 Exhibit 10 Exhibit 11 Exhibit 12 Exhibit 13 The denial to Mr. Vines, dated November 15, 1999 Memo regarding interpretations from the Assistant Planner of Jefferson County Decision of the hearing examiner, dated July 29, 1997, introduced because there are allegations that somehow this issue has already been raised and answered Mr. Reynolds response to David Alvarez, dated January 14,2000 as a statement of law only, not as fact Letter, dated August 12, 1998, when we had a co-interpretation of septic in Lot 2. Letter, dated October 26, 1998, from the Board of County Commissioners to Mr. & Mrs. Vines Permitting approval examples for the use of off-site sewer on residentially-zoned lots to serve commercial uses on adjoining parcels that are zoned commercial Resume of their planning expert, Richard Marc Sepler Resume of David Jensen, D.R. Strong Engineering Application for septic approval 1997 request for variance, introduced to show Mr. Vines has never before today applied for septic on Lot 2 1997 letter explaining that the only request was for a setback. There was no request for septic Formal declaration from R. Marc Sepler, who was unable to attend this meeting Mr. Reynolds asked that all of the Exhibits be admitted at this time with the understanding that his letter should have no more weight than that of Mr. Alvarez. Mr. Alvarez stated that, the applicant makes a claim in Exhibit 7 which mayor may not be true. It is up to the Board to determine whether they are in fact situations where a residential lot is serving a commercial septage. Commissioner W ojt said the acceptance of the exhibit materials for the record is not acceptance of the material as fact until the evidence has been presented. Commissioner Harpole said that without a complete packet of information, he does not want to continue the discussion. Mr. Reynolds said his client does not object to coming back next month. Mr. Jensen was here today to present technical evidence on the compliance of the application with Board of Health rules and regulations. He asked if Larry Fay has conceded that it is not an issue? If there was not a zoning issue, the concession is clear that the application would have been approved from a technical Board of Health standpoint. HEALTH BOARD MINUTES - Januarv 20, 2000 Page: 7 Larry Fay replied that the Health Department would have proceeded with processing the application. Mr. Reynolds said he has not heard, nor is the reason articulated here that there is a human health concern to deny the application. The concern is with the overall legality under the zoning code. If that is the case, he does not feel it will be necessary to present Mr. Jensen's testimony related to human health Issues. Commissioner Harpole moved that the hearing be rescheduled for the February Board of Health meeting and that staff create and distribute to the Board members a complete packet of information regarding this hearing. Member Masci seconded the motion for discussion. Dr. Tom Locke confirmed that he will invite the Jefferson County Prosecutor. Mr. Reynolds said if they supplement their exhibit list, he would do it in a timely fashion. Mr. Reynolds requested that the Community Development Director attend. Larry Fay requested Mr. Reynolds' material be received no later than February 9. The Chairman called for a vote on the motion which carried by unanimous vote. Commissioner Huntingford asked Mr. Reynolds if there is a copy of the CC&Rs. He requested that the planning staff, with the prosecutor's office, produce that information as part of the record. He sees that the issue comes down to the zoning and the CC&Rs and how those are being interpreted and he thinks it is a little out of the purview of this Board to be making a decision on the CC&Rs. Mr. Reynolds said they have briefed out the issue of whether an underground septic gets allowed in a residential zone and whether the CC&Rs have any relevance on the zoning code. Mr. Reynolds said, based on the court decision, the CC&Rs are still valid, but he does not see the CC&R as controlling in any way. Dr. Locke pointed out that the new on-site regulations deal extensively with the process to be used at hearings and clarifying issues of rules of evidence and procedure. That information will be important when there are disputes over what information is relevant. Commissioner Wojt stressed that no one should discuss the proceedings outside the Board of Health meeting. Mr. Alvarez said he will plan to attend the next meeting and, although he can provide procedural advice, he cannot advise the Board on a decision. Legislative Update: Dr. Tom Locke distributed the letter the Board of Health requested at the last meeting that addresses the MVET funding issue. Commissioner Harpole moved that staff finalize the letter to Hargrove, Kessler, and Buck. Member Masci seconded the motion, which carried by unanimous vote. HEALTH BOARD MINUTES - January 20, 2000 AGENDA CALENDAR / ADJOURN Page: 8 APPEAL HEARING - RAY AND LIANN VINES - February LEGISLATIVE UPDATE YEAR 2000 SESSION - February (Dr. Tom Locke) AGENDA PLANNING - YEAR 2000 - February Meeting adjourned at 3:28 p.m. The next meeting will be held on Thursday, February 17 at 1:30 p.m. JEFFERSON COUNTY BOARD OF HEALTH Roberta FrisseIl, Chairman Geoffrey Masci, Member (Excused Absence) Jill Buhler, Vice Chairman Richard W ojt, Member Glen Huntingford, Member Sheila Westerman, Member Dan Harpole, Member Jefferson County Health & Human Services 1 Ô Peninsula Syringe Exchange Program (SEP) Jefferson County Health & Human Services 2 Ô Peninsula Syringe Exchange Program .SEP Project Goals _ Reduce public exposure to communicable diseases - Increase public safety _ Increase direct contact with Injection Drug Users (IDU's) - Decrease occupational hazards 3 Ô Peninsula Syringe Exchange Program · SEP Services _ Exchange of used syringes for clean syringes _ Provide universal precaution information _ Provide substance abuse treatment referrals _ Linkages to HIV counseling and testing, primary health care, and other resources 4 Ô Peninsula Syringe Exchange Program · Communicable Disease - SEP's are communicable disease prevention -HIV · 36% of HIV infections were directly or indirectly related to injection drug use (Source: COC sta!JStics-MMWR 45. No. 19 - 5117/96) 5 Ô Peninsula Syringe Exchange Program · Communicable Disease - HCV (Hepatitis C Virus) · 60% HCV transmission due to injecting-drug use. (_:CDC_IIU7.No.1g1CY1~) · Infection acquired rapidly after beginning injection drug use 1_19WNlHec-ns.. SIaOomer<I · 50-80% become HCV+ within 6-12 months {SooraI: '997 NIH eon-- S...."'""'I 6 Ô Peninsula Syringe Exchange Program · Public Concerns - SEP's promote drug use - Send the "wrong message" about drug use _ Federally funded studies conclude that SEP's do not appear to increase drug use among IDU's or in the general community 7 Ô Peninsula Syringe Exchange Program · Cost Benefit Peninsula Syringe Exchange 1 Jefferson County Health & Human Services _ Lifetime cost of care for One person living with HIV · $154,000 - Averted HIV infection cost · $9,400 8 CJ Peninsula Syringe Exchange Program .In Washington State _ State Board of Health supports implementation of SEP's in every county because of the following: · decrease HIV infection rates among IDU's · SEP's act as gateways to substance abuse treatment. 9 CJ Peninsula Syringe Exchange Program · Washington State - Board of Health (cont.) · Exchange sites are leading source of drug treatment referral in Washington State · SEP's reduce HIV transmission rates without increasing drug use 100 Peninsula Syringe Exchange Program · In Jefferson County - HIV Counseling and Testing · Clients reported a history of injection drug use - 1998 13% of clients - 1997 17% of clients - 1996 11 % of clients 11 0 Peninsula Syringe Exchange Program · SEP Plan - Phase I (February· April, 2000) · Educate Stakeholders - Law & Justice - Treatment providers - Health care providers · Governance Action - Public Comment - Board of Health Resolution 12 0 Peninsula Syringe Exchange Program .SEP Plan (cant.) - Phase II (February· July, 2000) · SEP site location Peninsula Syringe Exchange 2 Jefferson County Health & Human Services · Program planning (staff, budget, protocols) · Outreach to target populations - Phase III (July, 2000- ongoing) · Begin syringe exchange Peninsula Syringe Exchange 3 ....."".....,....IIS IltQ"'t:I 17.I=C:~":" 1: ~ c: c: IE::S ¡,.. 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C. 0 .- . - o :.a .c UJ ... co ._ QJ.o Co ¡: ....:ICD....-::I OCIJã en4l...... .- ã (,) en b.O'- <XI ~ CI:I .... CD S 5.S ë3 ~ ã c: ª g: ¡;;..c:: "V ~ . 0·...... ..... c¡¡ I:tI c;;¡ 001 u.... CD lIS E-c..c::b.OS¡o~..Id..cO...;It.1;::CD 0 ......¡:........ UU....O.o.....OoI¡:;; ¡...; 0'- ....., ..... "'0 j >< 001 ëa..c: ::s ~.o Q .0 ¢..c:: s:: æ <¡J.~ rn Eo< Q.. ~ _ ~ s.... Q).-::: Q) C1J þoooIoo- \011oI E CO ~ C) o ~ Co E ~ ãi Chimacum Fire Department Holiday Dinner Outbreak December 1999 To: John Kobayashi From: Michael Curtis Date: December 21,1999 Background: On December 4th 1999, Chimacum Fire Department hosted a private holiday dinner for employees, retirees, friends, and spouses. Roughly 115 people attended the dinner. Beginning on December 6th, reports of gastrointestinal illness among dinner attendees were received at both the fire department and at Jefferson County Health Department. An investigation was initiated by the county on 12/6/99. Jefferson County Health Department requested the assistance of Communicable Disease Epidemiology at Washington State Department of Health. Methods: To identify cases, all dinner attendees were asked to complete a questionnaire - by telephone or in writing - regarding symptoms and menu items consumed at the dinner. A second questionnaire was administered to attendees by telephone. A case was defined as illness with vomiting or diarrhea in a dinner participant. A secondary case was defined as illness with vomiting or diarrhea in a household member who did not attend the dinner. Fresh stool samples were collected from some ill persons and tested at the state Public Health Laboratories. Selected leftover foods were collected and sent to North Carolina for viral testing. An environmental investigation was conducted, focusing on food preparation, handling, and serving. Results: Epidemiologic Investigation: 109 (95%) dinner attendees completed the first interview, and 107 (98%) ofthese completed the second interview. Median age of respondents was 52, and 51 (47%) were female. Half of all respondents were between the ages of 44 and 63. A total of 62 (57%) cases were identified. Illness was reported by 13 (12%) additional persons, but did not include either vomiting or diarrhea. The majority of case-patients had illness onset on 12/6, roughly 1.5 days after the dinner, and secondary cases (n=16) peaked roughly one day after primary cases (see figure). Commonly reported symptoms included diarrhea in 56 (90%), headache in 49 (79%), body aches in 44 (71 %), cramps in 43 (69%), vomiting in 40 (65%), light-headedness in 37 (60%). Zero case-patients reported bloody diarrhea, 17 (27%) sought professional medical treatment, 10 (16%) received intravenous fluids, and two (3%) were hospitalized. For those case-patients that reported a time of onset (n=57), the median incubation period was 34 hours (range 3-60 hours), and 25th and 75th percentiles of29 and 42 hours, respectively. The following table displays the rates of illness among those who ate and who did not eat each particular menu item. Relative risks are reported when significant. Stratified analysis of the variables representing consumption of salad, ice, and combined vegetable appetizers did not provide illumination of any single culprit. If anything, salad appeared to be slightly more suspicious than the others. . The salad hypothesis has the advantage of explaining the greatest number of cases - only 4 cases occurred in non-salad eaters. However, although there was bare-hand contact with the salad mix, it seems unlikely that every salad would be contaminated, as there were four different salad preparers, and no single preparer handled all salads. The chopped vegetable hypothesis has the advantage of gaining a stronger association when combined into one variable. Also, the vegetables were extensively handled, increasing the possibility of foodhandler contamination. Again, like the salads, the fact that there were several preparers argues against universal contamination of all vegetable appetizers. However, there could have been cross-contamination on the trays or in the vegetable dip. The ice'hypothesis is appealing by virtue ofthe ease with which all of the ice could become contaminated by a single person, because the ice was sitting in a single bucket throughout the evening. Also, ice may be a more difficult menu item for dinner participants to remember than the others, and hence its association with illness may have been diluted by recall bias more than the other foods. Quite possibly several foods were contaminated. Certainly one ill or convalescing person might have contaminated a number of the menu items. That said, not surprisingly the uncooked foods that were handled the most (vegetables, salad, and ice) are the ones found to be associated with illness. Recommendations: Appropriate foodhandling methods should be reinforced. This includes the following: 1.) III or recently ill persons should not prepare food for others. 2.) All foodhandlers should wash hands before and after handling food, as well as after using the restroom. 3.) Bare hand contact with food should be avoided as much as possible, if not eliminated altogether. A clean pair of gloves should be used for each foodhandling session. 4.) Children should not be allowed near food preparation activities for large gatherings, and the number of food handlers and preparers should be as few as is feasible. 5.) Ice for consumption should not be handled with bare hands. A scoop with a handle that keeps hands out of contact with the ice is appropriate. The cooperation of the Chimacum and Port Townsend Fire Department community during this investigation was greatly appreciated, as well as the dedication of the Jefferson County Health Department staff. DID EAT DID NOT EAT NOTES FOOD cases/total % III cases/total % III RR 95% CI p-value Shrimp 32/53 60% 30/56 54% NS Crackers 34/56 61% 28/53 53% NS Cream cheese 30/55 55% 32/54 59% NS ! Cocktail sauce 28/49 57% 34/60 57% NS Salami 1/5 20% 61/104 59% NS Ham 20/35 57% 42/74 57% NS I Turkey 16/30 53% 46/79 58% NS Cocktail wieners 23/47 49% 39/62 63% NS Deli cheese 37/63 59% 25/46 54% NS , Pre-cut Broccoli 15/23 65% 47/86 55% NS Pre-cut Baby carrots 29/42 69% 33/67 49% 1.40 1.02 - 1.92 .06 Prepared Fri. Green pepper 23/31 74% 39/78 50% 1.48 1.10-2.01 .04 Prepared Fri. Mushroom 18/28 64% 44/81 54% NS Olive 26/46 57% 36/63 57% NS Veggie dip 25/41 61% 37/68 54% NS Pickled Vegetable 5/11 45% 57/98 58% NS Cheese log 14/25 56% 48/82 59% NS Bread roll 38/64 59% 24/45 53% NS Prepared Sat. Salad 58/95 61% 4/14 29% 2.14 .92 - 4.97 .05 . Readv-to-eat Ranch dressing 56/91 62% 6/18 33% 1.85 .94 - 3.62 .05 Crouton 42/76 55% 20/33 61% NS Halibut 5/5 100~ 57/104 55% NS Chicken cord. Ble 25/41 61% 37/68 54% NS Prime rib 42/73 58% 20/36 56% NS Green beans 53/89 60% 9/20 45% NS Baked potato 54/94 57% 8/15 53% NS Beer 10/18 56% 52/91 57% NS Soda 19/35 54% 43/7 4 58% NS Mixed drink 31/53 59% 31/56 55% NS Ice 50/79 63% 12/30 40% 1.58 .99 - 2.53 .05 Fruit torte 43/7 6 57% 19/33 58% NS Whipped cream 27/55 49% 35/54 65% NS Prepared Fri. Devilled eggs 28/42 67% 34/67 51% NS Prepared Fri. Celery 21/27 78% 41/82 50% 1.56 1.16-2.09 .02 Roast beef 19/35 54% 43/7 4 58% NS Hot peppers 5/9 56% 57/100 57% NS Prepared Fri. Yellow peppers 18/24 75% 44/85 52% 1.45 1.06 - 1.97 .07 Prepared Fri. Red peppers 16/24 67% 46/85 54% NS Horse radish 19/29 66% 43/80 54% NS Nuts 46/73 63% 16/36 44% NS Trail mix 27/49 55% 35/60 58% NS Sour cream 31/54 57% 31/55 56% NS washed and pre-cut. They were also placed on the trays. The vegetable dip was prepared Saturday by mixing sour cream and a powdered ranch/onion mix. Ice was purchased in several bags from QFC. Some was placed in the freezer for later use and some was used to cool the beer and sodas - this ice was not used for consumption. Ice for consumption was placed in a single steel bowl and placed at the discretion of the two bartenders. Ice stored in the freezer was added as necessary. Discussion: This outbreak of gastroenteritis among participants at a large private dinner was caused by Norwalk virus. The high attack rate among dinner participants is characteristic of viral gastroenteritis outbreaks. Symptoms reported by ill persons are consistent with viral gastroenteritis and most stool samples tested showed evidence of Norwalk virus genetic material by PCR. Norwalk virus is exclusively a human pathogen, and most foodbome outbreaks due to this pathogen are the result of human contamination due to foodhandling errors. Some outbreaks are due to multiple contaminated foods, especially if food preparers handle multiple foods. Jefferson County has not received any reports of similar illnesses in persons unrelated to this dinner, which argues against contamination of a commercially prepared food. Likely this outbreak was caused by contamination of one or several foods by a food handler associated with the dinner. The investigation has not revealed a definitive association with illness for any single food. However it does suggest three leading hypotheses: salad, chopped vegetable appetizers, and ice. The salad was consumed by almost everyone, which makes an epidemiologic association difficult to find, but among the fourteen who did not eat salad the rate of illness was quite low. However, among these same fourteen, rates of eating vegetable appetizers was also very low. Illness was also associated with eating celery, with eating yellow peppers, with eating green peppers, and with eating baby carrots. All of these chopped vegetable appetizers were served together on the same platter, and all but the baby carrots were handled extensively (ie, chopped). Lumping these exposures together yields a stronger association than that for each one alone: Case No case Ate any of baby carrots, green pepper YES 44 21 yellow pepper, or celery : NO 18 26 RR=1.65, 95% CI 1.12 - 2.45, p=.Ol The third hypothesis involves ice. The ice was served from a large bucket and easily could have become contaminated from handling. Several dinner guests reported either using their bare hands to retrieve ice (n=3), or observing others doing so (n=16). Water consumption probably involved ice, and hence it is not inconsistent to find an association between illness and consuming water as well. Lumping the two exposures together does not alter at all the association seen with ice alone. 42/74 57% NS , Coffee 20/35 57% Tea 1/2 50% 61/107 57% NS . Sugar 0/1 0% 62/108 57% NS Cream 2/5 40% 60/104 58% NS Bacon bits 20/31 65% 42/78 54% NS Butter 44/80 55% 18/29 62% NS i Water 19/24 79% 43/85 51% 1.56 1.17-2.10 .02 ¡ Lemon or lime 13/17 77% 49/92 53% NS I Any veggie app. 47/72 65% 15/37 41% 1.61 1.05 - 2.46 .02 I Any deli meat 35/57 61% 27/52 52% NS ! i Any cheese slice 40/66 61% 22/43 51% NS I NOTE: For the purpose of these calculations, non-responses and "don't know" responses were considered negative responses regarding a particular food exposure. Laboratory Investigation: Six stool samples were received from ill persons (4 dinner attendees, and 2 persons with illness by secondary transmission). Five of these samples demonstrated evidence of Norwalk virus genotype 2 by polymerase chain reaction, and the sixth was negative for genotype 2 by PCR but was positive for Norwalk virus by PCR with a less specific assay. No other enteric bacterial or viral pathogens were detected in the specimens. One stool sample from an ill person unrelated to the dinner was inadvertently tested also - results were negative for Norwalk virus by all PCR assays. Several leftover food samples have been sent to North Carolina (Dr. Lee-Ann Jaykus) for viral testing. Results from these tests are pending. Environmental Investigation: Many of the menu items, such as salads, vegetable appetizers, and main course items, were prepared and handled extensively by organizers of the dinner. Other foods were purchased ready-to-eat. All food preparation occurred on either Friday, 12/3 or Saturday, 12/4. The preparation of some selected foods will be described below. The salad was made on Saturday (12/4) from a pre-washed & pre-cut lettuce mix purchased from Costco. The mix was placed into individual serving bowls by four preparers. Bare hands were used by all. A tomato and croutons were then added to each bowl, and ready-to-eat ranch dressing was poured from jars onto each salad. There was no hand contact with the ranch dressing. Two additional persons placed the salads onto the dinner tables. The vegetable appetizers were prepared on Friday (12/3). Four preparers (different from the salad preparers) chopped the celery, mushrooms, and yellow/red/green peppers, again with bare hands. These were placed onto two serving trays. The broccoli and baby carrots were pre- ~ III GJ .. .Q .... :I o -G\ -s.G\ CUG\ c.... II l- I: j Ll.e E ~ ::I It ~Q E .. 1- ~ .cc U:s ..0 QJU utc ta 0 ~e! cl! ~IJ w.... C o (It æ c - - .... zoo f21 ~ ., tft ftS I Yo =It an :t .: {ft ~ I = 81 cu à..8 (ft ð ð t- cu¿, .. - cu >I( fa C ~ -B .8~2 fa c E B mlc .- .- I ... eX -" fa A. .c: u D . u ! Q. ..: ! ... 1ft . ø . c ~ In .." ~ o N c ... loft ... In Rca Id3 SIcr ~gV~I~1NWO~ . fit .... ,.. ... ... .... o .... ca '- cø.! .... e cø .ø U ~! . II) .- N .- ... c OC6ZT9C90Z XV.:!: t!i:g-r 3;11. 66'gz/¡n JEFFERSON COUNTY HEALTH & HUMAN SERVICES I I Epidemiology Report, Cost of Investigation of Norwalk Virus Outbreak DRAFT, final report will be distributed at the SOH meeting. i : ! I I I 1 I I i I I . i TOTAL I LOST I I I HOURS I COST REVENUE I I : I ì ~ Health Officer i 5.001 270.70 I I I EH Director , 8.50' 237.58 i ! , PHNIII i 43.001 1,130.04T I I EHS II I 53.501 1,093.54 : I I Other Professional Staff ¡ 15.251 686.48 I I I I i , I I I Indirect , 18.37 I I I Overhead I 342.75 I I I : I T SUBTOTAL I 125.251 $ 3,779.45 : i I , I , 1 I i Fire Departments , i \ I Port Townsend I 1 I ! I Chimacum : , I I I , i W.A. State DOH ! 7 days I 1,500.00 ; I i I W.A. State DOH Lab i I 300.00 I I I I I I ! I TOTAL . 125.25 5,579.45 i I ...:=:r ¡i~ County Health & Human Services February 10, 2000 Intermediate Report on School Exemptions ... Jane Kurata, PHN and Ruth McDougall, PHN of DOH started surveying immunization records in all schools in eastern Jefferson County due to the high number of immunization exemptions reported in Jefferson County schools. Types of exemptions as well as whether students are exempt for all immunizations, or only one dose or antigen is being studied. Jefferson County has the second highest personal exception rate in the state this year. The findings show many students have signed personal exemptions for all immunizations. There are few medical or religious exemptions. Of greater concern is the high numbers of students who are out of compliance, i.e. not completely immunized, but with no exemption signed. This could be due to low priority placed on immunizations by the schools and incompetent bookkeeping. In the event of a disease outbreak, it would be very difficult to determine which students should properly be excluded from school. Jane Kurata, PHN, Hilary Metzger, PHN, and Marty Johnson, PHN will be assisting the schools to clarify and update students' immunization records. Mountain View Elementary in the Port Townsend district and Chimacum Middle School in the Chimacum district stood out as schools with well-organized records in compliance with statutes. HEALTH DEPARTMENT 360/385-9400 ENVIRONMENTAL HEALTH 360/385-9444 DEVELOPMENTAL DISABILITIES 360/385-9400 ALCOHOL/DRUG ABUSE 360/385-9400 FAX 360/385-9401 December 16, 1999 Name, Chair Jefferson General Hospital Board of Commissioners Address Address Dear Name: During today's monthly meeting of the Jefferson County Board of Health, a discussion was held concerning the community health impacts of budget cuts prompted by passage ofl-695. Among the many concerns is the impact of reduced ferry service on accessibility of urgent and emergent medical services in Seattle. Reduced ferry runs and shortened hours of operation have the potential of becoming more than an inconvenience to Jefferson County residents in need of specialized medical services on the other side of Puget Sound. Since this issue has significant effects on Jefferson General's ability to transport patients and access Seattle-based services, we are asking the Hospital's Board of Commissioners to investigate tills potential problem and advise us if it is something we should take joint action on. Thank you for your attention to this important issue. Sincerely, Richard W ojt Chair, Jefferson County Board of Health 6 JCHHS HIV TESTING and COUNSELING PLAN· 2000 1. New HIV Testing and Counseling Brochure - see packet. 2. Pre-screening by phone - M-F 0900-1600 a. Procedure as follows: 1. Calls received by receptionist with request for HIV testing. 2. Calls transferred to Denis, Karen, Marty, and CD person on call 3. Prescreening checklist completed with client by phone. 4. Appointment made for testing at JCHHS or 5. Recommend The Home Access HIV-1 Test Kit or private practitioner, etc., based on assessed risk factors. 3. After pre-screening done: and if appointment for testing is needed, call is then transferred back to receptionist and appointment made. 4. Available appointment times will be provided to the appointment personnel on a monthly basis. a. Initially will be 3 hours/week. b. Transition time for switch from HIV testing and counseling walk-in clinic to scheduled testing and counseling appointments will continue through 1/21/00. 5. Routine staff perfonning HIV testing and counseling will include: a. Denis b. Karen c. Marty d. Family Planning Practitioners (if done in conjunction with family planning appt.). 6. Post-test counseling and results will be done by the same individual who completed the pre-testing. This counselor will schedule the post-test session directly with the client. 7. HIV Testing and Counseling Consent updated January 2000. 8. In process: update of community resources (Denis, Karen). To include: a. Where Can I Get Tested in Jefferson County? b. JCHHS HIV Testing and Counseling brochure 9. News release to the Leader and Peninsula Daily News/done - see packet. 10. Update to be included in physician Newsletter and to all JCHHS staff - see packet. 11. Update packet to Board of Health (2100). (article for physician newsletter) Jefferson County Health and Human Services HIV TESTING and COUNSELING Beginning in January 2000, JCHHS will only offer HIV testing and counseling to those individuals at high-risk of HIV infection. In recent years JCHHS has tested 250-300 individuals annually with many at low risk of HIV infection. Funding mandates for staffing needs and public health priorities require a change in practice. Federal funds require HIV testing focus on the following individuals recognized as at high-risk: men who have sex with men. injection drug users or those with a history of injection drug use. - sexual partners of an HIV+ person or anyone who has unprotected sex or shares needles with a person at high-risk. Individuals recently diagnosed with a sexually transmitted disease. Sex industry workers. Persons with hemophilia. Clients at low-risk will be referred for home testing, or to their private physician or health care worker (see "Where Can I Get Tested. . ."). Appointments will be made for HIV testing and counseling after a brief prescreening is completed by phone. If you have any questions or clients you would like to refer, please call Denis, Karen or Marty at 385-9400. (article for newspaper) HIV TESTING FOR HIGH RISK ONLY Jefferson County Health and Human Services will offer HIV testing and counseling only to those individuals at high-risk of HIV infection. "The Health department receives federal funds to test people who are most at risk of contracting the disease", states Jean Baldwin, Director of Community and Family Health. Individuals identified at high-risk for HIV infection include the following: men who have sex with men. injection drug users or those with a history of injection drug use. sexual partners of an HIV+ person or anyone who has unprotected sex or shares needles with at person at high-risk. individuals recently diagnosed with a sexually transmitted disease. - sex industry workers. persons with hemophilia. Trained public health nurses will screen questions about testing and appointments. For those individuals who screen at high-risk, a testing and counseling appointment at the health department can then be made. For those individual's who do not screen as high-risk but want to be tested, there are a number of options available. Among these options are checking with private health care providers or obtaining an In-Home Test Kit. "The In-Home Test Kits now available are anonymous and as accurate as the test given at the Health department or doctor's office," according to Baldwin, "Jefferson County Health and Human Services would like to be able to test anyone who comes in, but staff time is limited and must be directed at those individuals who would benefit the most." The HIV Testing and Counseling Walk-In Clinic at the Health Department will be available through January 21, 2000, in order to make this transition easier for our clients. For more information about HIV testing options, please call the Health department at 385-9400. Where can I get tested for HIV infection in Jefferson County? Manv places provide testing for HIV infection. Medical providers and trained counselors can answer questions abo;t risky behavior and ways to protect yourself and others in the future. In addition, they can help you understand the meaning of the test results and describe what AIDS-related resources are available. The following options are available for those seeking HIV infection testing: 1. Medical providers refer patients to local labs for a blood draw for HIV testing. Medical providers offer counseling and education about risk factors for HIV infection. Cost varies, depending on lab and office visit fees. Call your medical provider for an appointment. 2. The Jefferson General Hospital Lab can provide the lab service for mv testing, with a medical provider referral only. Cost through JGH is $40.50 if cash is paid the day of service. If the patient or insurance company is billed, the cost is $57.50. Named results are sent to the referring medical provider office. No self-referrals or anonymous testing is available at JGH. It is expected counseling and education are provided by the referring medical provider. 3. The Monroe Street Clinic offers walk-in, confidential HIV testing between 7:30 a.m. to 4:00 p.m. Monday through Friday. A trained counselor is available to screen for risk factors and answer questions for those without a referral. Be prepared to pay approximately $40 the day of service if you have a medical provider referral, or approximately $50 without a referral. Results may be available the next day. Call 385-5658 for more information. 4. Jefferson County Health & Human Services has mv testing available for those at highest risk ofHIV infection only. Those considered to be at highest risk include people who have a history of intravenous drug use, men who have sex with men, those recently diagnosed with a sexually transmitted disease, those with hemophilia, prostitutes, or sex partners of any of these people with risk factors, and sex partners of HIV infected persons. Services are on a sliding scale. Call 385-9400 for more information. 5. The Home Access HIV-l Test Kit is available at most drug stores, directly from the manufacturer and through the internet. The test is completely anonymous and confidential. It is the only home test approved by the FDA and is 99.9% accurate. The home test kit uses the same testing procedure used by labs throughout the U.S. Results are given by phone within 7 days for the Standard Kit, or within 3 days for the Express Kit. The company offers counseling by phone, available 24 hours a day, to provide information and support for those using the home test kit. First the customer must prick their finger with a sterile lancet provided in the kit. Three drops of blood are then applied to a specially treated card. Then the kit is returned in a weatherproof, prepaid, U.S. Mail (Standard Kit) or Federal Express (Express Kit) envelope to the company. In three days to a week (depending on which test was purchased), results are available by calling a toll tree number. Call 1-800-448-8378 for more information. The Home Access HIV-l Test ~t can be ordered directly from the manufacturer by calling 1-800-448-8378, cost (including $6.00 for shipping) is $45.99 for Standard, or $55.95 for Express. Locally, this test kit can be ordered anonymously from Don's by calling 385-0969, from Safeway by calling 385- 2860, or from QFC pharmacy in Port Hadlock by calling 385-1900. Because the test has a short shelflife, pharmacies prefer to order a fresh test as needed. You can usually pick up the ordered test within 24 hours at the pharmacy counter, without having to give your name. Cost will be approximately $40 for the Standard test, or $50 for the Express. The Home Access HIV-l Test Kit is also available through the internet at the following sites, for approximately the same cost as ordering the kit directly from the manufacturer: www.healthforwomen.com/hiv.html; www.homehivtest.comlconfidential.htmJ; www.condoms.netf. Jt!ffo.fon CmuúI1 Ht!aIIh & H_ .fervicø. JanlUUV. 1000 2 BEFORE THE JEFFERSON COUNTY BOARD OF HEALTH RECEI ED 'FEB 0 9 JEFF. CO NTY HEALTH D PT. 3 4 In Re the matter of No. SEP98-0007 5 RA YMOND and LIANNE VINES Appellants HEARING MEMORANDUM ON BEHALF OF THE COUNTY BOARD OF HEALTH 6 "T' , 8 9 10 Items relied upon: 11 1. This "Hearing Memorandum;" and 12 2. Affidavit of David Alvarez, with Exhibits attached. 13 Facts: 14 This appeal arises from the denial of an application by Mr. Vines for an onsite 15 sewage system. The location of the proposed onsite sewage system that is the subject of 16 this controversy was and is Lots 1 and 2 of a platted area known as Melwood Terrace in 17 Port Hadlock. Linda Atkins, R.S., of the Jefferson County Environmental Health 18 Division issued the denial in writing on November 19, 1999. See the Alvarez Affidavit, 19 Exhibit 1. 20 Yet, the saga of Mr. Vines and his efforts to develop Lot 1 ofMelwood Terrace is a long and convoluted one that can not be briefly explained. Note well, that Mr. Vines owns the three contiguous parcels known ø.s I.ots 1,2 and 3 of Melwood Terrace. It is also important to note that Lot I is and was zoned for commercial uses, while Lots 2 and 3 ofMelwood Terrace are zoned "residential." This author holds the opinion that counsel for Mr. Vines would not dispute the statements made here about the zoning or ownership of Lots 1,2 and 3 in Melwood Terrace. In fact, the history of the interactions between Mr. Vines and the County have enough complexity that they need to be divided into two broad categories: 1) the most HEARING MEMORANDUM ON BEHALF OF THE JUELANNE DALZELL PROSECUTING ATTORNEY FOR JEFFERSON COUNTY Courthouse - P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 21 22 23 24 25 26 27 28 COUNTY BOARD OF HEALTH- 1 .~ ~. "","",!,""'-.". 7 ' -.) '- ,. '. ...J . ~., j'~" i recent applications for permission to build an onsite sewage system (commonly called 2 "septic" by lay persons) and 2) various unsuccessful efforts initiated by Mr. Vines as he 3 attempted to have the zoning on Lot 2 altered from residential to commercial. 4 a. Recent onsite sewage avvlications: 5 The application for an onsite sewage system which is now the subject ofthis 6 appeal represents an amended application. 7 The original application, approved by Ms. Atkins in April 1998, can best be 8 described as a "self-contained" application because both the commercial development 9 and the septic for that commercial development were to be located entirely within the 10 boundaries of Lot 1, the parcel that is zoned specifically for commercial uses. See 11 Alvarez Affidavit, Exhibit 2, the map submitted with the original application, which 12 indicates the approval of Ms. Atkins on April 3, 1998. The original application submitte 13 by Mr. Vines indicated that this self-contained application would become an auto 14 detailing shop. There are no zoning or Health Department obstacles present if Mr. Vines 15 were to decide to go ahead with this project. It is true, however, that Mr. Al Scalf, the 16 County's Director of Community Development ("DCD"), would testify before this Board 17 that Mr. Vines is not yet entitled to a building permit for the auto detailing shop. Mr. 18 Scalf informed Vines in a face-to-face meeting that no building permit could issue for the 19 auto detailing shop until such time as Mr. Vines provided DCD with three items. Those 20 three items were and are 1) a copy of the license of the contractor who would build the 21 shop, 2) a surety bond from that same contractor and 3) written assurance from the 27 County PUD that the auto detailing shop would be entitled to and hooked-up for PUD- 23 supplied water. 24 Now Mr. Vines has filed an amended application: he wishes to cross a zoning 25 boundary by constructing the commercial enterprise on Lot 1 (zoned commercial) while 26 placing the drain field (an essential element of the onsite sewage system) on Lot 2, which 27 is zoned residential. Ms. Atkins informed Mr. Vines in a March 24, 1999 letter that the 28 new proposal would be considered an amended application. See Alvarez Exhibit 3. Note HEARING MEMORANDUM ON BEHALF OF THE JUELANNE DALZELL PROSECUTING ATTORNEY COUNTY BOARD OF HEALTH - 2 FOR JEFFERSON COUNTY Courthouse - P.O. Box 1220 Port Townsend, W A 98368 (360) 385-9180 2 well that the auto detailing shop has been "erased" from the proposed plans and a two- story building of some 7,000 square feet, i.e., a much larger building has been proposed. See Exhibit 4 to the Alvarez Affidavit. This is the application that was denied by Ms. Atkins and which is being appealed to this Board at the present time. b. Mr. Vines files a variance request and various lawsuits, all fail: Operating on a "parallel track" to the various applications for permission to build 3 4 5 6 7 an onsite sewage system'vvas an attempt by Mr. Vines in May 1997 to obtain a variance 8 from the setback requirements then applicable to Lot 1 in Melwood Terrace. See Exhibit 11 previously provided to this Board by the Appellants. In response to Question #6 of the variance application Mr. Vines (or his representative) wrote the following: "The current development setback requirements combined with the irregularity of the lot configuration ...... reduce the buildable area of [Lot 1] to approximately 4,000 square feet. The existing on-site commercial parking requirements and lack of suitable soils for on-site sewage treatment (see the report attached) furthermore restrict the potential commercial use of the property." 9 10 11 12 13 14 15 16 Thus, assuming the variance was not granted Mr. Vines always had the ability to 17 build a structure of some 4,000 square feet and indeed he received permission to do so 18 when he subsequently applied to [and received permission from] the County to construct 19 the auto detailing shop. 20 The report by David Jansen, P.E., (made part of the Vines variance application) 21 stated that the best solution was to combine Lots 1 and 2, placing on those lots a "small 22 office with associated parking areas [ which] would fit across the southern portions of 23 Lots 1 and 2 with the drain field in the northern portion of these lots." See page 1 of 24 Jansen's report, dated April 3, 1997 from which the above quote was taken. Jansen's 25 April 3, 1997 report is part of the Appellants' Exhibit 11 previously supplied to this 26 Board. Thus. the variance application from 1997 included the concept of using Lot 2 27 (zoned residential) for a commercial proiect that would rest on Lots 1 and 2. 28 HEARING MEMORANDUM ON BEHALF OF THE JUELANNE DALZELL PROSECUTING ATTORNEY FOR JEFFERSON COUNTY Courthouse - P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 COUNTY BOARD OF HEALTH - 3 2 Hearing Examiner Berteig denied the Vines request for a variance from the Code's setback requirements. He did so in a detailed 12-page opinion that has been provided to the Health Board members as Exhibit 5 to the Alvarez Affidavit. The setback variance was denied because the Vines application could not satisfy the seven variance criteria codified in the Jefferson County Code at 18.85.030. Faced with the above-described report from Engineer Jansen and testimony from Planner Rick Sepler "that a drainfield can be placed on Lot 2 and serve Lot 1" (see pages 4 and 5 ofBerteig's decision), Berteig had no choice but to discuss the impact of permitting a commercial use to exist across both Lots 1 and 2. Why? Because Lot 2 was and is zoned residential. Berteig viewed this as a request for a use variance. He initially posed the question forced before him by the Jansen and Sepler testimony in the following 3 4 5 6 7 8 9 10 11 12 manner: "[a]t issue is whether the use of a portion of Lot 2 for an underground drainfield (sic) to serve commercial uses on Lot 1 and whether the use of a portion of Lot 3 to meet the landscaping requirements of a commercial development on Lot 1 constitute use variances. If the drainfield (sic) use of Lot 2 were to render Lot 2 unusable for a residence, then it would be exclusively devoted to the commercial use and would constitute a use variance." (see page 7 of the Berteig decision. Alvarez Exhibit 5.) 13 14 15 16 17 18 19 20 Examiner Berteig then answered his above-stated query on page 9. He wrote: 21 "Issue: Use Variance. 2. Use Variance. (footnote omitted) Issue: support~n9 or Lots. 3. Accessory Uses on Residential Use variances are not allowed. 22 23 Supporting and accessory uses must be located on the C-2 zoned Lot 1. While it may be argued that an underground drainfield (sic) may be located off-site, there would have to be permanent joining of the lots to assure that such off-site drainfield (sic) would not be violated by another use. Such joining of lots, whether by easement or covenant would constitute an effective 24 25 26 27 28 HEARING MEMORANDUM ON BEHALF OF THE JUELANNE DALZELL PROSECUTING ATTORNEY FOR JEFFERSON COUNTY Courthouse - P.O. Box 1220 Port Townsend, W A 98368 (360) 385-9180 COUNTY BOARD OF HEALTH - 4 ~xpansion of the C-2 zone, and therefore [would] not be allowed." (emphasis supplied.) 2 3 In other words, Examiner Berteig concluded that the Vines application, as framed 4 by Mr. Vines and his chosen experts (Jansen and Sepler), was an attempt to obtain a use 5 variance that would have, if granted, expanded the size of the C-2 zone. Examiner 6 Berteig decided he was compelled to reject such an application. 7 There have been two other attempts by the Vines to change the residential 8 designation of Lots 2 and 3 within Melwood Terrace. Both of them have failed. 9 Mr. and Mrs. Vines also appealed the residential designation of Lots 2 and 3 10 within Melwood Terrace to the Western Washington Growth Management Hearings 11 Board. The Vines asserted that the Jefferson County Comprehensive Plan was not in 12 compliance with the Growth Management Act because his Lots 2 and 3 were entitled to 13 be zoned for a more intense use, i.e., a commercial designation. Why? Because they 14 were located within the Port Hadlock Rural Village Center, an area targeted for future 15 population growth and then the subject of the "Special Study". The Growth Management 16 Hearings Board issued an order dated AprilS, 1999 fmding this County in compliance 17 and denying the request of the Vines family for a re-zone. See Alvarez Exhibit 6, the 18 decision of the Growth Management Hearings Board. 19 Separately, in a lawsuit brought by Mr. Vines against his neighbors within 20 Melwood Terrace, the Superior Court refused the request of the Vineses that the 21 restrictive covenants controlling Melwood Terrace be amended so as to permit 22 commercial uses on Lots 2 and 3, i.e., the residential parcels they own there. The County 23 was not involved in that lawsuit. See as part of the Alvarez Affidavit, a copy of those 24 restrictive covenants as recorded with the County Auditor's office (Exhibit 7) and a copy 25 of the decision entered by the Superior Court. (Exhibit 8). 26 On or about December 1, 1999 the attorney for Mr. Vines formally gave notice 27 that his client intended to appeal the denial letter of Ms. Atkins. See Alvarez Exhibit 9. 28 COUNTY BOARD OF HEALTH - 5 ITJELANNE DALZELL PROSECUTING ATTORNEY FOR JEFFERSON COUNTY Courthouse - P.O. Box 1220 Port Townsend. WA 98368 (360) 385-9180 HEARING MEMORANDUM ON BEHALF OF THE 2 LEGAL ARGUMENT 3 4 I-NO ILLEGAL EX PARTE CONTACT OCCURRED WHEN ALVAREZ SENT HIS LETTER DATED NOVEMBER 18 TO CERTAIN BOARD OF HEALTH MEMBERS SINCE AT THAT TIME THERE WAS NO APPEAL EXTANT BEFORE THE COUNTY BOARD OF HEALTH 5 6 7 8 On November 18, 1999, some 12 days before any appeal in this matter was 9 initiated by Mr. Reynolds, counsel for the Vines family, this author wrote a letter to Mr. 10 Reynolds. The County Commissioners, who also sit as members of the County Board of 11 Health received a carbon copy of the Alvarez letter. Mr. Reynolds now challenges that 12 letter as an inappropriate ex parte contact in violation of the "appearance of fairness doctrine." Mr. Reynolds has referred this Board to RCW 42.36.010 et seq., the statutory codification of the "appearance of fairness" doctrine. Mr. Reynolds is incorrect in making such an assertion. An ex parte communication, by defmition, is never received by the party making the assertion. Here, 13 14 15 16 17 Mr. Reynolds received the disputed letter and thus was never denied a copy of the 18 disputed communication. 19 Furthermore, pursuant to the defmition of that term found within RCW 42.36.060, is only capable of occurring "[ d]uring the pendency of an quasi-judicial proceeding.... ." The Alvarez letter proceeded by one day the November 19 rej ection letter of Sanitarian Atkins. The same letter was dated not less than12 days BEFORE the time when the appeal was filed. In the absence of a pending quasi-judicial proceeding when the letter was written, no violation of the "appearance of fairness" doctrine has occurred. 20 21 22 23 24 25 Mr. Alvarez, on behalf of the Jefferson County Prosecuting Attorney's office, will 26 be present on February 17th as counsel for the County Board of Health. 27 28 HEARING MEMORANDUM ON BEHALF OF THE JUELANNE DALZELL PROSECUTING ATTORNEY FOR JEFFERSON COUNTY Courthouse - p.o. Box 1220 Port Townsend. W A 98368 (360) 385-9180 COUNTY BOARD OF HEALTH - 6 2 II-THE HEALTH OFFICER'S DECISION SHOULD NOT BE OVERTURNED 3 BECAUSE IT WAS NOT ARBITRARY, CAPRICIOUS OR UNREASONABLE 4 a. The applicable standard 5 As confmned by the counsel for Mr. Vines, and as codified with respect to state 6 agency action at RCW 34.05.570(1)(a), "[t]he burden of demonstrating the invalidity of 7 agency action is ûn the person asserting the invalidity." 8 What is the burden that Mr. Vines and his counsel have to meet? 9 The reviewing entity (here the Board of Health) must affirm and support the 10 decision they have been asked to review unless that decision was "arbitrary, capricious 11 and unreasonable." 12 See for the above-listed proposition Ritter v. Board of Commissioners of Adams 13 County Public Hospital Dist, 96 Wn. App. 503,637 P. 2d 940 (1981)(defendantlhospital 14 did not act in arbitrary and capricious manner with respect to physician who lost his 15 hospital privileges because doctor was provided complete due process to prove his 16 entitlement to reinstatement.) The term of art "arbitrary, capricious and unreasonable" 17 has been judicially defmed as any action that is "willful and unreasoning in disregard of 18 facts and circumstances." See Children's Hospital and Medical Center v. Washington 19 State Dept of Health, 95 Wash. App. 858,975 P. 2d 567 (1999) (interpreting the judicial 20 review portion of this state's Administrative Procedure Act, codified at RCW 34.05.570.) 21 Thus, this Board must uphold the determination of the County's Department of 22 Health & Human Services regarding Mr. Vines' on-site sewage system unless it finds tha 25 Mr. Fay's decision was arbitrary, capricious or unreasonable. b. The legal basis for the decision now being challenged: Washington state statutes undoubtedly support the common-sense notion that each agency or "branch" of a local government (such as this County) should not issue its 23 24 26 27 permits in a "vacuum" or with "blinders on," i.e., in complete disregard of what other 28 county agencies have concluded or decided with respect to precisely that same parcel of HEARING MEMORANDUM ON BEHALF OF THE JUELANNE DALZELL PROSECUTING ATTORNEY FOR JEFFERSON COUNTY Courthouse - P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 COUNTY BOARD OF HEAL TII - 7 2 real property. In that vein, this Board is referred, for example, to RCW 58.17.210, whic reads, in relevant part, as follows: "[n]o building permit, septic tank permit, or other development permit, shall be issued for any lot, tract, or parcel of land divided in violation of this chapter or local regulations adopted pursuant thereto unless the authority authorized to issue such permit finds that the public interest will not be adversely affected thereby." (emphasis supplied.) 3 4 5 6 7 RCW 58.17.210 is, of course, a clear example, that a health officer faced with a request for a septic tank permit is obligated by state law to insure that before he or she issues the septic permit that all the zoning prerequisites regarding a particular subdivision have bee met. 8 9 10 11 Conversely, where the preconditions for a building permit have been met by the developer but the land use application does not include an adequate septic system, a decision of the Washington state Supreme Court allows a local government to refuse to issue that building permit. See Christianson v. Snohomish Health District, 133 Wn. 2d 647, 846 P. 2d 768 (1997). In other words, the Building Department of Snohomish County was expressly told by local Ordinance (and subsequently by the State Supreme Court) that it could not issue a building permit to the Christiansons with "blinders" on, i.e., while completely ignoring the septic problems the Christiansons had not yet solved. But the statutes of Washington State go farther and specifically insist that the local Health Officer must consider all other local ordinances when deciding whether or not to issue a pennit for an on-site sewage system. This Board is referred to RCW 12 13 14 15 16 17 18 19 20 21 22 23 70.05.074(2): 24 "[I]f the local health officer denies an application to install an on-site sewage system, the denial must be for cause and based upon public health and environmental protection concerns, including concerns regarding the ability to operate and maintain the system, or conflicts with other existing laws, regulations or ordinances. The local health officer must provide the applicant with 25 26 27 28 HEARING MEMORANDUM ON BEHALF OF THE JUELANNE DALZELL PROSECUTING ATTORNEY FOR JEFFERSON COUNTY Courthouse - P.O. Box 1220 Port Townsend, W A 98368 (360) 385-9180 COUNTY BOARD OF HEAL ill - 8 a written justification for the denial, along with an explanation of the procedure for appeal." 2 3 There is the explicit language that mandates that the Health Officer must determine 4 whether the application, if granted, would cause "conflicts with other laws, regulations or 5 ordinances." This author would be hard-pressed to fmd statutory language that more 6 explicitly supports the decision of the Health Department to take into consideration the 7 opinion of the County's planners before issuing any septic permits. Such language, of 8 course, serves the common-sense public policy which encourages the idea that one 9 agency of a county such as Jefferson should not act in a manner that contradicts or harms 10 the policies and goals of another "branch" of that same local government entity. 11 The current County Ordinance relating to zoning, entitled "Jefferson County 12 Zoning Ordinance," was enacted in 1998. The 1998 Zoning Ordinance, which pre-dates 13 the amended application of early 1999 submitted by Mr. Vines, expressly states the 14 supremacy of the Zoning Code to all other codes and reflects the intent to integrate the 15 actions of various otherwise disparate agencies of the local government known as 16 Jefferson County. The Zoning Code, Section 2.40, states that "[t]he provisions of other 17 adopted Jefferson County Ordinances and plans shall be subordinate to the prescriptive 18 standards of the Zoning Code." In further pursuit ofthis integration, one only needs to 19 read sub-paragraph #3, entitled "Health Department," under Section 19.10 of the 20 County's Zoning Code which states, in relevant part, as follows: 21 25 "3. Health Department: The Jefferson County Health Department shall review development proposals subject to this Ordinance regarding adequacy of proposed sewa~e disposal...... and forward comments and recommendations to the Department of Development Review [a subset of the County's Department of Community Development]." See Alvarez Exhibit 10 for the relevant pages of the 1998 Zoning Code. 22 23 24 26 27 One immediately is forced to note that the state statutes listed previously and the 28 controlling local ordinances all dovetail: they all promote the idea that one agency of a COUNTY BOARD OF HEALTH - 9 JUELANNE DALZELL PROSECUTING ATTORNEY FOR JEFFERSON COUNTY Courthouse - P.O. Box 1220 Port Townsend, W A 98368 (360) 385-9180 HEARING MEMORANDUM ON BEHALF OF TIIE 2 local government should consider the regulations, rules and decisions of another department when determining whether to issue its permit. A concrete example will bring the above rule of law into focus for the Board members. Simply because, hypothetically, Lot 2 in Melwood Terrace would be suitable (ftom a health and environment viewpoint) for an onsite sewage system to support a commercial structure on Lot 2 would not entitle Mr. Vines to place a commercial strüctwe (e.g., a small office building or self-store facility) on Lot 2. Why? Because the commercial structure would not be a permitted use on Lot 2, which is zoned residential. Thus, in sum, when one again examines RCW 58.17.210 andRCW 70.05.074(2), the Christianson case and the applicable local Ordinances, it becomes crystal clear that the Jefferson County Health Department was and is encouraged, indeed mandated, by statute and case law to take into consideration the conclusions and concerns of other County agencies such as the County's Department of Community Development (sometimes known as "DCD") before issuing a septic permit. The County Health Department correctly inquired of the County's DCD (see Section 19.10(3) of the County Code) regarding the septic application that was propounded by Mr. Vines for his real property in Melwood Terrace. The County Health Department learned in November 1999 that this Vines application did not satisfy the County's Zoning Ordinances. The DCD memo of November 15, 1999 acted as a "Stop" sign for the County's Health Department, as well it should. This Memorandum has previously described why this application set forth by Mr. Vines can not come into compliance with the zoning codes of this County. In 1997 Hearing Examiner Berteig correctly decided that Mr. Vines was not entitled to the use variance that he was pretending not to ask for. Examiner Berteig also correctly decided that in light of the expert testimony presented to him and the expressly-stated plan to unite Lots 1 and 2 that Mr. Vines was attempting to enlarge his commercial acreage without admitting as much. This Memorandum has previously stated that the restrictive covenants and the County's Comprehensive Plan both place Lot 2 in a residential zone. HEARING MEMORANDUM ON BEfW.,F OF THE JUELANNE DALZELL PROSECUTING ATTORNEY COUNTY BOARD OF HEALTII - 10 FOR JEFFERSON COUNTY Courthouse - P.O. Box 1220 Port Townsend, WA 98368 (360) 385-9180 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 \ 1 In sum, Mr. Vines has on three occasions unsuccessfully challenged the zoning 2 and the covenants which mandate that Lots 2 and 3 ofMelwood Terrace be zoned 3 residential rather than commercial. Now, it appears, that Mr. Vines is attempting an end- 4 run around the zoning obstacles. 5 Therefore, Mr. Vines would now have the County's Health Department put on its 6 "blinders" and issue him the on-site sewage permit despite the distinct but presently 7 insurmountable zoning problems that be faces. Public policy, statutes and case law 8 9 strongly argue against such an action. Nothing about the decision of the Jefferson County Health Department to reject this septic application of Mr. Vines indicates in the least that it is or was "willful and unreasoning in disregard of facts and circumstances." In fact, the decision was made only after careful consideration of the zoning implications of the Vines application now before this Board. Therefore, the decision of the County Health Department was not "arbitrary, capricious or unreasonable" and it should be affirmed by this Board. 10 11 12 13 14 15 16 RESPECTFULLY SUBMITTED this Js~ day of February, 2000. 17 19 JUELANNE DALZELL Prosecuting Attorney in and for Jefferson Cmmty 18 22 ~ Ptv: DAVID W. ALVAREZ, WSBA# Deputy Prosecuting Attorney Attorney for Appellee 20 21 23 24 25 26 27 28 COUNTY BOARD OF HEALTH - 11 JUELANNE DALZELL PROSECUTING ATTORNEY FOR JEFFERSON COUNTY Courthouse - P.O. Box 1220 Port Townsend, W A 98368 (360) 385-9180 HEARING :MEMORANDUM ON BEHALF OF THE 2 3 4 10 11 BEFORE THE JEFFERSON COUNTY BOARD OF HEALTH 5 Raymond and Liann Vines, Appellant, Case No.: No. SEP98-0007 RECE' ED fEB 0 9 2 00 JEFF. CQU TY HEAlTHD PT. 6 AFFIDAVIT OF DAVID ALVAREZ vs. 7 Jefferson County Board of Health, Appellee 8 9 I, DAVID AL V AREZ, being of full age and sound mind, do hereby swear and affIrm as follows: I am an attorney-at-law in the State of Washington. I am competent to testify in open court with respect to all statements that have been made in this Declaration. There is a complex history behind Mr. Vines and his attempts to construct and operate a commercial enterprise in the vicinity of Lot 1 in Melwood Terrace, Port Hadlock. Certain documents will illuminate that history for the Board of Health members. True and complete copies of the following documents are made Exhibits to this Declaration as follows: 12 1. 13 2. 14 15 3. 16 17 18 4. 19 5. 20 21 22 23 24 Exhibit 1- Letter dated November 19, 1999 from Linda Atkins, R.S., to Mr. Vines denying his septic application; Exhibit 2- A copy of a map ofthe initial proposal put forth by Mr. Vines, i.e., an auto detailing shop to be located on Lot 1 that would be supported by an on-site sewage system also to be located on Lot 1; Exhibit 3- A letter dated March 24, 1999 from Linda Atkins, R.S., to Mr. Vines informing him that his proposal (which would place on Lot 2 the drain field for the commercial enterprise to go up on Lot 1) reflected an amended proposal; AFFIDAVIT OF DAVID ALVAREZ JUELANNE DALZELL C PROSECUTING ATTORNEY Page 1 0 PY FOR JEFFERSON COUNTY Courthouse - P.O. Box 1220 Port Townsend, W A 98368 (360) 385-9180 25 26 27 28 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 6. 18 19 Exhibit 4- A copy of a map reflecting the new proposal, which would place on Lot 2 the drain field for the commercial enterprise to go up on Lot 1; Exhibit 5- The 12 page decision of Hearing Examiner Berteig from July 1997 relating to a variance requested by Mr. Vines; Exhibit 6- The April 1999 decision of the Western Washington Growth Management Hearings Board regarding the zoning for Lots 1,2 and 3 ofMelwood Terrace; Exhibit 7- The restrictive covenants applicable to Melwood Terrace; Exhibit 8- The Order entered by a Superior Court Judge with respect to the lawsuit regarding those restrictive covenants at the end of the lawsuit filed by Mr. Vines; Exhibit 9- Letter dated December 1, 1999 from Mr. Reynolds requesting an appeal of the November 19, 1999 Atkins letter denying Mr. Vines his septic application; and Exhibit 10- Certain pages of the Jefferson County Zoning Ordinance enacted in 1998. I make this Declaration in support of my separate "Hearing Memorandum on Behalf of the County Board of Health." 20 EXECUTED this}.>+ day of February, 2000, in Port Townsend, 21 22 23 24 Washington. £)~,~ DAVIDALVA~ 25 SUBSCRIBED AND SWORN to be re me 26 27 28 AFFIDAVIT OF DAVID ALVAREZ NOTARY P IC in and for the State of Washington, residing at Port Tovvnsend. My commission expires: (jg(~lðZo JUELANNE DALZELL PROSECUTING ATTORNEY FOR JEFFERSON COUNTY Courthouse - P.O. Box 1220 Port Townsend, W A 98368 (360) 385-9180 Page 2 ,......~fr.. ,,~..... FRJM :MBE 36Ø 3SS-3ØSS FX TO : 12Ø662S66 1 1 ., 199.11-27 12:S1PM "6SØ P.01/02 H ·'---;;;J..CW;~J!ß~lt ~~·",iED·· urn a 11- 1~f5J ~ð,;;.c....T L.... - . .~..~-_._..' -.-..-..-.-. RA Y VINES 331 BA YSHORTI DR POR T LUDLOW W A 98365 ~ 'Dmr\\"<? ~),\DIJso Rl"':: Melwood Terrace, Lots 1 & 2 ff972·000.001 & 002, SEP98-0007 Dear Mr. Vines: On Novcmber 18,1999 this oft1ce receivcd notification from the Department of Community Development that the reviRed application for an onsitc sewage syfitern on Jot 2 to serve a commercial establishment on lot I docs 110t comply with zoning requir~ments. Therefore thc application for revision is denied. A copy of the memo from DRD is enclm;ed fol' your files. Appeal iTem a decision by the health officer punlUant to chaptcr Jefferson County On site Sewage System Code 8.15 may be made by filing a written request with the Jefferson Count.y Board of Health within 15 days following thc decision. Appeals shal1 be heard by the Board within 35 days of receipt of appeal. As noted in the lettcr dated November] 5, ] 999 the existing permit that was approved for lot 1 must he renewed to stay valid. A renewal notice was enclosed. Please submit the required renewal fee ¡fyou want to keep the permit valid. Please contuct this office if YOll have further questions. ~inc cly A . 1_ A ~ Linda Atkins H..S. Jefferson County f.'.nvironmental Health Division C Michelle Grewell, Dcyclopment Review Dave Jensèn P.E.) D.R. St.rong one EXHIBIT "1" ._-_..~ HEALTH DEPARTMENT 360/385-9400 ENVI RONMENT AL HEALTH 360/385-9444 DEVELOPMENTAL DISABILITIES 360/305-9400 ALCOHOL/DRUG ABUSE 360/385-9400 FAX 360/3B5-940 1 C) u' ..-I- ¡ ./ c__r:- (v'\' "7 !! ~ ~ ( ,.1-.-- , " \~. \ \ l" '\ \ .<' \. " \ '\/\ '\ \)/ 1¡~, '\~, g\'~)~/\/\ \ /,\' I /'~/ (~~~ \\ \ ),)1' /' .-( \ nò \" \ ,/,,;' C / \ '; \ \~ - J-\t:- D f /\ \ U\~, ~", - Ilu (~ \ ~ l I . cjì----t .~ ,I Z. ... I - [- tb\_ / o J. \Õ;r_(' : 3 3;; /, ~ \~ \~)~ ;~? \~V; - /{ \~,: ~;\ "\ ï, \', -~--i ' ~\~ \ C----\ ,/j :: \. \ \ ____,I X/ J,e; ~ú) /'x:: œ ~ ~ ~ p;~CI¡~fl~I~I~II~~i {! 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Ie) (,I 0-;- - ,JJ --1 ~ ~~ County Health & Human Services March 24, 1999 RAY VINES 331 BA YSHORE DR PORT LUDLOW WA 98365 RE: Melwood Terrace, Lots 1 & 2 #972-000-001 and 002 Dear Mr. Vines: On February 25, 1999 this office received an application for a drainfield on lot 2 to serve a building on lot 1 of Melwood Terrace. The proposal is for a lot that currently has an active/approved onsite sewage permit. This new proposal is a redesign. You will be receiving a refund for overpayment of fees paid. A copy of the application has been forwarded to Development review because this involves a commercial development. The permit cannot be issued until this office has been notified that the proposal conforms to planning requirements and has been reviewed/cleared under the Critical Areas Ordinance. In order to evaluate the new proposal the soil logs will need to be opened up for inspection by this office. If you are concerned about leaving the holes open you may contact this office to schedule the inspection so that the soil logs can be covered after inspection. Please contact this office when the soil logs are ready for inspection or if you have further questions. ~inc ely . ~-d~ /J+II~ inda Atkins R. S. Jefferson County Environmental Health Specialist Cc Dave Jensen P.E., DR Strong Cc- r1\~c~\~-E.- Gí~ \\ ~07 Pb-\- P\c,~. 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() 7- ~ :¿ \' 3 ' o . <: -:l i J ," - 1 OFFICE OF THE HEARING EXAMINER FOR JEFFERSON COUNTY 2 3 6 RE: Application by Ray Vines for ) File No. ZON97-0018 a variance to the setback from an ) adjoining "R" zoned lot to allow a) zero (0) foot setback, on ) commercial zoned property in the ) FINDINGS, CONCLUSIONS, Port Hadlock area. ) ) AND DECISION ) ) 4 5 7 10 FINDINGS OF FACT œ Œ©Œ~WŒ W JUL 1 0 1997 JEFFERSON COUNTY PERMIT CENTER 8 9 11 12 BACKGROUND INFORMATION 15 No. 05-0214-96) as follows: (1) To vary from the requirements 13 Proposal: The applicant has requested the following variance 14 the Jefferson County Interim Growth strategy Ordinance, 16 Section 4.40, commercial and Industrial Bulk, Dimensional and General 17 Requirements for Lands Within Designated Rural Centers, Table 12.4. 18 This table requires a minimum side and rear setback of 25 feet fo 21 General Commercial (C-2) and the adjoining property is zone 19 commercial structures when property abuts an established residential 20 development or a "R" zone. The subj ect property (lot # 1) is zone 22 Residential (R-3, one residence per 3 acres). Said variance 23 application is to allow the construction of a commercial buildin 24 with a zero (0) foot setback from the side property line. 25 Applicant: Ray Vines 26 Applicant's Address: 331 Bayshore Dr., Port Ludlow, WA 98365 27 Property Address: unassigned. 28 Property Location: The project site is located at the intersectio 29 of Oak Bay Road (SR-116) and Ann Kively Drive. The property fronts 0 Ray Vines Variance ZON97-0018 Page 1 Findings. Conclusions and Decision EXHIBIT "5" 1 both SR-116 and Ann Kively Drive, a county road. The site is withi 2 the community of Port Hadlock. 3 Legal Description: Lot 1 of the Plat of Melwood Terrace, in section 4 1, Township 29 North, Range 1 West, W.M. Parcel No. 972 000 001. 5 Zoning: General commercial (C-2). 6 comprehensive Plan Map Designation: Commercial. 7 Property Description: The subject property is the northerly most lot 8 within the Plat of Melwood Terrace, and contains approximately 14,000 9 square feet, or 0.32 acres. It is triangular in shape. Adjacent to 10 the state highway, it's east-west dimension is about 200 feet and the 11 north-south dimension adjacent to Kively Drive is about 220 feet. 12 Its depth varies from 50 to 110 feet and averages about 80 feet. 13 Surrounding Conditions: Properties across Oak Bay Road and to the 14 northwest are developed in commercial uses. The Plat of Melwood 15 Terrace is partially developed with single family residences. 16 PROCEDURAL INFORMATION 17 Applicable Regulations: The variance application is subject to 18 provisions of Title 18, Chapter 18.85 of the Jefferson County Code. 19 following variance review criteria apply to the variance application. Sectio 20 18.85.020 Review Criteria, (1),(2),(3),(4),(5),(6),&(7); and Section 18.85.020 21 (1) & (2). Jefferson County Code, Chapter 18.105, Expiration of Permits, an' 22 Section 2.05.120, Hearing Examiner Powers and Duties, of the Optiona 23 Consolidated Permit Review Process also apply. 24 Hearing Date: July 15, 1997. July 15, 1997. 25 Site Visit: 26 SEPA: A variance is categorically exempt. Mailed: July 2, 1997 Posted: July 1, 1997 27 Notices: 28 29 Publication: July 2, 1997 (Port Townsend Leader) . Ray Vines Variance ZON97-0018 Page 2 Findings. Conclusions and Decision 1 TESTIMONY: 2 The public hearing was opened on July 15, 1997 at 2:30 p.m. in the 3 Courthouse Lower Level Conference Room. After the procedures for the 4 public hearing were explained, testimony was accepted. All testimony 5 was taken under oath. A verbatim recording of the public hearing was 6 made and is maintained in the Jefferson Permit Center file. 7 Jerry Smith, Development Review Associate Planner, presented the 8 staff Report together with its Attachments A through H. One item of 9 new correspondence received since the publication of the Staff Report 10 was submitted: a letter dated July 10, 1997 from Ursula E. Morrow, 11 an adjacent property owner. Mr. Smith explained the staff 12 recommendation in greater detail, pointing out the corrected setback 13 requirements, namely that Ann Kilvey Drive is a local access street 14 requiring a 25-foot setback rather than 30 feet. The setback from 15 Lot 2 is 25 feet. Mr. smith explained that the Zoning Code allowed 16 the setback areas to be used for signs, parking, and landscaping. 17 Landscaping is required along a residential zone boundary. 18 Ray Vines, Applicant, testified that he has owned the subject Lot 1, 19 as well as Lots 2 and 3, for 17 years. Mr. Vines argued that the 20 setback requirements have become worse. Mr. Vines testified that 21 site conditions on Lot 1 require him to use the setback along Oak Bay 22 Road for a septic drainfield. The soil limitations for drainfields 23 extends over lots 2 and 3, in fact, lot 3 is virtually unbuildable. 24 Mr. Vines offered to place a covenant on lot 2 to tie it to lot 1 25 because of the setback variance, thereby precluding its development. 26 Also, Mr. Vines would like to place the required landscaping on lot 27 3. Mr. vines noted a letter regarding drainfields by their engineer, 28 D. R. Strong Engineers. 29 Ray Vines Variance ZON97-0018 Page 3 Findings. Conclusions and Decision 1 Rick Sepler, Madrona Planning, testified as a consultant for the 2 Applicant [see also Attachment B to the Staff Report]. Mr. Sepler 3 argued that a drainfield can be placed on Lot 2 and serve Lot 1. Mr. 4 Sepler repeated his client's offer to tie Lot 2 to Lot 1 with a 5 restrictive covenant, and to make the County a party to the covenant 6 so that no future owners would be surprised. 7 Mr. Sepler argued that the staff reference to Lot 27 is inappropriate 8 because that lot is different. Lot 27 is residential - not 9 commercial. It is not on the highway. Lot 27 required half of Lot 10 28 for drainfields. 11 Mr. Sepler also argued that it is important for marketing and parking 12 efficiency to have the commercial building parallel to Oak Bay Road. 13 Mr. Sepler also pointed out that the Applicant was not proposing as 14 much square footage of building as would be allowed without a 15 variance, but rather a configuration that allowed a longer building 16 and parallel placement to the arterial. 17 Mark Huth, Attorney for the neighbors in opposition, submitted a 18 Hearing Memorandum and explained some of the history of the 19 applicant's past actions. The Applicant previously tried to expand 20 the commercially zoned lot. Neighbors took the matter to court to 21 uphold the existing covenants; the covenants were upheld. Mr. Huth 22 argued that a drainfield serving a commercial use on Lot 1 would not 23 be permitted under the covenants on Lot 2. Mr. Huth noted also that 24 the zoning Code requires that ALL variance criteria had to be met in 25 order to approve a variance. Mr. Huth's comments are contained in 26 detail in his Hearing Memorandum [Exhibit 3] . 27 Mr. Huth described the history of the restrictive covenants on the 28 property and the past court actions to enforce those covenants. The 29 Ray Vines Variance ZON97-0018 Page 4 Findings. Conclusions and Decision 1 Court ruled in favor of his clients in 1981 and again on a separate 2 case on June 27, 1997. 3 Bill Breitweg, owner of Lots 18-19, testified in opposition, 4 observing that the Applicant could meet the setback requirements. 5 Mr. Breitweg argued that there would be traffic problems caused by an 6 excessively large commercial development. Also, it is not known what 7 kind of commercial use would be developed. Commercial traffic will 8 be invited into the residential neighborhood because of the access 9 onto Kively Drive. 10 Mark Ruth continued his oral arguments to question any notion of a 11 "bench" in the site's topography. 12 Rick Sepler made rebuttal testimony on the following: 13 a. Contends that Lots 2 and 3 could be used to support off- 14 site drainfields. 15 b. In support of unusual conditions argues that Port 16 Townsend's zoning code allows zero setback. 17 c. While there is a potential for a larger building, the 18 variance could be conditioned to preclude exceeding that contained in 19 the application. 20 d. A hardship is created by forcing the placement of the 21 commercial building. Efficient use, drainage, and expectations for a 22 commercial building parallel to the arterial would suffer. 23 e. Contends that the Zoning Code would not be eroded because 24 they would still comply with the landscaping requirement. 25 f. stated that the law suit is not relevant. 26 g. Argues that the traffic impact is not significant, noting 27 that the parking requirement will be much less than the SEPA 28 threshold of 40 spaces. 29 Ray Vines Variance ZON97-0018 Page 5 Findings, Conclusions and Decision 1 h. Concluded that a commercial building could be placed 2 within the setbacks - but not efficiently. 3 Jerry Smith, in final staff comments, noted that the variance 4 application did not include an application for variance to the 5 landscaping requirements. 6 Rick Sepler responded that the landscape buffer proposal was part of 7 the application. 8 Mark Huth responded that due process was not met. 9 There being no other parties present and wishing to testify, the 10 public hearing was closed at 3:30 p.m. 11 EXHIBITS: 12 Exhibit 1: Staff Report dated July 8, 1997, together with its Attachments A 13 through H. 15 Exhibit 2 : Exhibit 3: Exhibit 4 : Letter from Ursula E. McMorrow dated July 10, 1997. 14 Hearing Memorandum by Attorney Mark Huth dated July 15, 1997. 16 Copy of Protective Covenants for Melwood Terrace, recording under 17 Jefferson County Auditor File No. 225397. 18 Exhibit 5: Log Sheet left out of the Staff Report attachments. 19 Exhibit 6: Guest List (sign-up sheet) for Public Hearing. 20 FINDINGS: 21 1. The staff Report contains a detailed analysis of the proposed 22 variance application's compliance with applicable policies and 23 regulations. The Hearing Examiner has reviewed the Staff Report, 24 viewed the property in the field, and conducted a public hearing, and 25 now considers the whole record in making findings and conclusions 26 below, organized by Issues and by applicable zoning Code Criteria. 27 Issue: Consideration of Private Covenants in a Zoning Variance. 28 2. Opposition argues that the restrictive covenants should be 29 recognized in considering the variance, noting that Lots 2 and 3 are Ray Vines Variance ZON97-G0 18 Page 6 Findings, Conclusions and Decision \ 1 restricted to residential use and all lots are subject to certain 2 setback requirements. The general rule is that restrictive covenants 3 cannot be used as grounds to deny a zoning variance; whereas, those 4 same covenants may provide grounds for a separate action.~ On the 5 other hand some land use authorities in discussing the conflict 6 between private restrictions and zoning state that many courts hold 7 that restrictive covenants cannot be abrogated by zoning.2 8 3. pointing out that the subject covenants have been upheld in 9 court, the opposition argues that a variance in conflict with those 10 covenants will ". adversely affect the character of the 11 neighboring adjacent property owners" because the covenants protect 12 the interests of the neighboring property owners.3 13 Issue: Use Variance. 14 4. Use variances are not permitted nor has one been specifically 15 requested. At issue is whether the use of a portion of Lot 2 for an 16 underground drainfield to serve commercial uses on Lot 1 and whether 17 the use of a portion of Lot 3 to meet the landscaping requirements of 18 a commercial development on Lot 1 constitute use variances. If the 19 drainfield use of Lot 2 were to render Lot 2 as unusable for a 20 residence, then it would be exclusively devoted to the commercial use 21 and would constitute a use variance. 22 5. The Jefferson County Zoning Code is clear that commercial 23 parking cannot be placed on a residential lot. The Courts have held 24 that "business" is the antonym of "residential".4 25 26 1 Martel v. Vancouver, 35 Wn. App. 250, 257, 666 P.2d 916 (1983); Mains Farm v. Worthington 64 Wn. App. 171, 824 P.2d 495 (1992). 2 Donald G. Hagman & Julian c. Juer~ensrneyer, Urban Planning and Land Development control Law § 19.10 (2" ed. 1986) 3 See Exhibit 3, Opponents Hearing Memorandum at page 8. Hageman v. Worth, 56 Wn.App. 85, 91, 782 P.2d 1072 (1989). 27 28 29 Ray Vines Variance ZON97-0018 Page 7 Findings, Conclusions and Decision 1 6. While some have argued that the line between business and 2 residential should not be so absolute and an incidental approach 3 should be followed, one such decision was reversed.s 4 Issue: supporting or Accessory Uses on Residential Lots. 5 7. While the Zoning Code is not explicit that all requirements of a 6 C-2 commercial use must be met within a C-2 zoned lot, a reading of 7 the whole Code supports such a finding. For instance, the 10 foot 8 landscape buffer must be located on the common boundary line between 9 commercial and residential zones. Accessory use is defined relative 10 to the main use on the lot. Placement of such supporting uses on 11 other land would result in commercial uses occupying greater space 12 than anticipated. 13 8. A possible exception to this rule of providing all requirements 14 within the commercial zoned lot is the provision of drainfields for 15 sewage treatment. Such facilities are underground and normally do 16 not create off-site impacts. Moreover, the sewage drainfield need 17 does not exist when sewers are provided. 18 Applicable Zoning Code Variance Criteria: 19 9. The seven variance criteria contained ln JCC 18.85.020 are 20 addressed in the staff Report at pages 2 through 7. The Staff 21 Comments contain certain facts which are hereby adopted as Findings. 22 CONCLUSIONS OF LAW 23 24 Issue: Consideration of Private Covenants in a Zoning Variance. 25 1. The general rule that restrictive covenants cannot be used as 26 grounds to deny a zoning variance is clear; however, in this case 27 28 29 5 Metzner v. Wojdyla, 125 Wn.2d 445, 886 P.2d 154 (1994), reversing Metzner v. Wojdyla, 69 Wn. App. 405, 848 P.2d 1313 (1993). See also Burton v. Douglas ~, 65 Wn.2d 619, 399 P.2d 68 (1965). Ray Vines Variance ZON97-D018 Page 8 Findings. Conclusions and Decision 1 where recent litigation clarifies the allowed uses on Lots 2 and 3, 2 the effects of the covenants can be a consideration short of a sole 3 reason for denial. 4 Issue: Use Variance. 5 2. Use variances are not allowed.s 6 Issue: supporting or Accessory Uses on Residential Lots. 7 3. supporting and accessory uses must be located on the C-2 zoned 8 Lot 1. While it may be argued that an underground drainfield may be 9 located off-site, there would have to be a permanent joining of the 10 lots to assure that such off-site drainfield would not be violated by 11 another use. Such joining of lots, whether by easement or covenant 12 would constitute an effective expansion of the C-2 zone, and 13 therefore not be allowed. 14 Variance Review criteria: 15 4. The Zoning Code requires that ALL of the seven variance criteria 16 contained in JCC 18.85.020 must be met in order to authorize a 17 variance. The following cited criteria are each followed by 18 applicable conclusions: 21 (1). The restrictive effect of the specific zoning regulation construed literally as to the specific property is unreasonable due to unique conditions relating to the specific property such as: size, shape, topography, location, proximity to a critical area or character of surrounding uses, or that strict application of the regulation would be unreasonable in view of the purpose to be served by the regulation; 19 20 22 5. The mere change of zoning requirements, such as setbacks, does 23 not meet criterion (1). There must be a showing of an unreasonab~e 24 25 result from the application of the requirements to the unique features of the land. Lot 1 was apparently contemplated for 26 27 commercial use upon its original platting, as evidenced by the covenants placed on the plat. This criterion must be read together 28 29 6 JCC 18.85.030 Ray Vines Variance ZON97-0018 Page 9 Findings. Conclusions and Decision 1 with the next criterion, which precludes the personal circumstances 2 of the applicant. staff has shown that a building larger than 3 proposed by the applicant could be placed on the lot without a 4 variance, which the Applicant does not dispute. Furthermore, the 5 zoning Code setbacks only apply to building locations, and not 6 parking and landscape requirements. Therefore, there is no showing 7 of unreasonable application of requirements. 8 9 (2). The hardship relates to application of the standard to the land, rather than the personal circumstanæs of the applicant; The variance is needed to accommodate the building proposed by 10 6. 11 the applicant and placed as proposed by the applicant. The argument 12 that a commercial building must be placed parallel to an arterial is 13 not persuasive given nearby business developments. Claims of loss of 14 parking and circulation efficiencies are belied by the applicant's 15 explanation that parking would not be located along Oak Bay Road 16 because that land is the only suitable drainfield site. The variance 17 results from the personal circumstances of the applicant, and this 18 criterion is not met. 19 (3). The granting of this variance will not serve to erode the purpose of this ordinance. 20 21 7. A building smaller than permitted, placed to meet buffer 22 requirements, could be conditioned sufficiently to preclude eroding 23 the purpose of the Zoning Code. However, the variance as requested 24 would place above ground requirements on residential lots and thereby 25 erode the purpose of the Zoning Code. 26 27 (4). The variance so granted would allow reasonable use of the property; and would not adversely effect the use of the neighboring properties; Once again, the seven variance criteria must be read together. 29 To "allow reasonable use of the property" assumes that the zoning 28 8. Ray Vines Variance ZON97-0018 Page 10 Findings. Conclusions and Decision 1 requirements actually preclude a reasonable use. Such is not the 2 case here because a building of equal or greater floor area could be 3 placed within the prescribed setbacks. Denial of the variance would 4 not preclude business use of the property. The variance as requested 5 would adversely effect the use of the "neighboring properties" noting that the placement of buffers on adjacent lots does not buffer 6 7 from other directions. 8 (5). The variance does rwt authorize deviation from the specific use restrictions contained in this Ordinance; 9 10 9. The variance as requested would place some of the commercial 11 requirements on residential lots, thereby violating specific use 12 requirements. 15 10. (6). The granting of the variance will rwt be materially detrimental or contrary to the Comprehensive Plan and will rwt adversely affect the character of the neighborhood and the rights of neighboring adjacent property owners; and The opponents argue that proposed Comprehensive Plan amendments 13 14 16 would change the designation from commercial to rural. Courts have 17 held that proposed plans or ordinances cannot be considered in 18 similar land use applications.' Granting the variance as requested 19 would allow extending the commercial building toward Lot 2 and 20 placing commercial supporting uses on Lots 2 and 3. The end result 21 would affect the character of the neighborhood, particularly since 22 the Applicant owns Lots 2 and 3 and would likely maintain the threat 23 of future attempts to expand. 24 25 26 11. (7). The granting of the variance does not cause a significant detrimental effect to the public interest. If all other criteria were met, it would be difficult to argue 27 that an analysis of criterion (7) would identify sufficient separate 28 29 7 Norco Const. Inc. v. King County, 97 Wn.2d 680, 682, 649 P.2d 103 (1982). See also West Main Assocs. v. Bellevue, 106 Wn.2d 47, 52, 720 P.2d 782 (1986). Ray Vines Variance ZON97-0018 Page 11 Findings. Conclusions and Decision 1 causes to deny the variance. However, many of the same reasons 2 stated above also support a conclusion that this criterion is not 3 met. 4 Summary Conclusions: 5 12. It is significant that the Applicant is not precluded from 6 commercial use of Lot 1 without a variance. In fact, a building 7 larger than proposed can be constructed. The allowed building 8 envelop is large enough to design a variety of configurations of the 9 size building proposed, which then leads to a firm conclusion that 10 the only purpose of the request is to extend the commercial as close 11 to or onto Lots 2 and 3. Thus, criteria (1), (2) and (4) are clearly 12 not met. Since ALL criteria must be met before a variance can be 13 authorized, the variance as requested must be denied. 14 DECISION 15 16 The variance as requested by Ray Vines is hereby DENIED. ORDERED this 29th day of July, 1997. 17 18 20 >-í'~~ Irv Berteig Hearing Examiner for Jefferson County 19 21 22 23 24 25 26 27 28 29 Ray Vines Variance ZON97-0018 Page 12 Findings. Conclusions and Decision 1 NOTICE: 2 A copy or notice of this Decision and Appeal Instructions was 3 transmitted by the Jefferson County Permit Center to the following: 4 5 Date Transmitted: í....J /- ~7 9- 6 7 Ray Vines, 331 Bayshore Dr., Port Ludlow, WA 98365 8 Rick Sepler, Madrona Planning, 1256 Lawrence St., Port Townsend, WA 98368 9 Mark Huth, Attorney, PO Box 303, Port Townsend, WA 98368 10 Bill Breitweg, PO Box 22, Port Hadlock, WA 98339 11 Arnold and Ellie Day, 120 Lylus Lane, Port Hadlock, WA 98339 12 W.J. and Helen Wynn, 121 Lylus Lane, Port Hadlock, WA 98339 13 William M. Clarke, PO Box 123, Port Hadlock, WA 98339 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Ray Vines Variance ZON97-û018 Page 13 Findings. Conclusions and Decision 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ~~t~P!J~D' BEFORE THE WESTE&.'i WASHINGTON GROWTH APR 0 6 1999 MAN"AGElVŒNT HEARINGS BOARD JEFFERSON COU NTY BOARD OF COMMISSIONERS R..;\ YMOND AND LI1\1~N V1NES,...., ' ) ) ) ) ) ) ) ) ) ) FINAL DECISION AND ORDER No. 98-2-0018 ......... ,..-'.- ". -,"',~! Petitioner; , ; ,'~,... fk'K - 6 ¡SS9 '. " ¡ v. ,'- ¡ ~ ~ ~ . '-¡:'-':~r-::7;;~·;,;:··-;7·~ ¡ JEFFERSON COUN+--~E3:~~:1;~!:,";.ðl;;;i;~[Y ~ ! Respondent. On September 2, 1998, Jefferson County adopted its comprehensive plan (CP). The petition for review was fIled on November 2, 1998. The Hearing on the Merits was held in Port Townsend on March 2, 1999. Petitioners prefaced their opening brief of February 5, 1999, with a motion for a stay. We addressed the motion by order dated February 12, 1999, and denied the reque'3t. Outside of the request for a stay, petitioners pointed out that at CP 3-20 the Port Hadlock Rural Village Center (RVC), was referred to as "interim" because it was adjacent to the Tri-Area special study location. The CP directed that when the study was completed the RVC boundary would be revisited in light of the study results . Regardless of the characterization by petitioners, and even the County, the RVC designations are permanent for Growth Management Act (GMA, Act) purposes. A CP is not a static document. Under RCW 36.70A.130(1) every CP "shall be subject to continuing review and evaluation" by the adopting local government. The Jefferson County CP has been adopted, implemented, and is being used Western washington Grcw1h Management Hearings Board , 905 24th Wrr¡ 'SN. Suite 116-2 PO Box 40953 Olympia. Washington 9S5()4-0953 Phone: 36Q-ô64-8966 Fax: 36Q-ô64-8975 EXHIBIT "6" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 currently. It has no sunset date. Therefore, for GMA purposes, the CP is not considered interim. Petitioners are the owners of Lots 1, 2, and 3 of the plat of Melwood Terrace. While there was some dispute in the CP and subsequent County actions as to whether Lot 1 was designated as part of the commercial zone within the RVC, the parties stipulated that for purposes of this order Lot 1 carried a commercial designation. Lots 2 and 3 were designated as rural residential under the CP. Petitioners' complaint focused on the exclusion of Lot 2 from commercial designation. Petitioners challenged the exclusion of Lot 2 because: 1. Lot 2 was only usable as a commercial lot and exclu~ion of Lot 2 made Lot 1 commercially undevelopable; and .., Exciusion of Lot 2 violated the provisions of ESB 6094, which amended RCW 36.70A.070(5) in 1997, relating to more intensive rural commercial development. Petitioners contended that because Lot 2 was located atop a critical aquifer recharge area it could not be used as residential property. Thus, its only realistic use would be as an adjunct for a septic system to Lot 1. Because of the unusual configuration of Lot 1, the use of current setback provisions and septic system regulations made Lot 1 "undevelopable" (òr. p. 9) or at least sigIÚficantiy reduce the "reasonably developable" (òr. p. 10) potential of Lot 1 unless Lot 2 was included as commercial designation. The failure to designate Lot 2 also violated the criteria for designation set forth at CP 3-15, 16 and did not take local conditions into account as set forth in CP 3-9, 10 according to petitioners. Final Decision and Order Case #98-2-0018 -r April 5. 1999 Page 2. Western Washington Growth Management Hearings Board 905 24th Way SW, Suite '&2 PO Box 40953 Olympia. Washington 98504-0953 Phone: 360-664-8966 Fax: 360-664-8975 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Thus, petitioners contended, the decision of Jefferson County violated RCW 36.70A.020(6) (Goal 6) which prohibits arbitrary and discriminatory actions by local governments. Petitioners' challenge starts with two misconstrued prerruses. First, p. 11 of petitioners' brief requested that we as a Growth Management Hearings Board (GMHB) must "balance the equities" in deciding this case. That is clearly not the role of a GMHB. Our role is to detennine if compliance with the GMA has been achieved. In making that determination the GMA requires that a petitioner sustain the burden of showing that the action of the local government was clearly erroneous, RCW 36.70A.320, and local governments are afforded a "broad range of discretion," RCW 36.70A.3201. Even if noncompliance is found, a GMHB only remands the issue to the local government and does not make a final decision on the merits of the noncompliance, RCW 36.70A.300(3)(b). The second premise is found at p. 8 wherein petitioners state that "rural development consisting of the infill of commercial parcels is mandated" (emphasis supplied) under the 1997 amendments to RCW 36.70A.070(5). The amendments found in ESB 6094 do not mandate infill of commercial parcels, but rather allows them subject to very strict requirements. RCW 36.70A.070(5)(d) provides that " . . . the rural element may allow for limited areas of more intense rural development,.. . " (emphasis supplied). Petitioners challenged compliance with Goal 6 of the Act. CP 3-26 discussed property rights that were considered in reaching the County's CP decisions. The GMA requires consideration of property rights but does not mandate a specific result. Jefferson County complied with the GMA in its conside::ation. Final Decision and Order Case #98-2-0018 April 5. 1999 Page 3 Western Washington Growth Management Hearings Board .s905 24th Way ~. Suite '8-2 PO Box 40953 Olympia, Washington 98504-0053 Phonø: 360-864-8966 Fax: 360-864-8975 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Petitioners' claim of arbitrary and discriminatory actions was related to the claim that the criteria for designation contained in CP 3-15, 16 were too restrictive and thus excluded Lot 2. Petitioners cited Wells v. Wharcom County, #97-2-0030c, for the proposition that existing zoning could not be used as the sole criterion for designation of areas of more intense rural development. That statement is accurate. However, here existing zoning from the 1994 zoning ordinance was used as an exclusionary criterion. That is allowable under the G1vIA. The fact that exclusion of Lot 2 may have potential negative economic impacts to petitioners does not establish arbitrary and discriminatory action under Goal 6. Additionally, petitioners failed to show where properties similarly situated were treated differently than their own. As their second challenge to the County's action petitioners asserted that various sections of the recent amendments to RCW 36.70A.070(5) were violated. Petitioners contended that RCW 36.70A.070(5)(a) requiring a local government to develop a written record explaining how the rural element harmonizes the planning goals and meets the requirements of the GMA was not complied with. The County argued that the land use and rural element (Chapter 3) of the CP provided such a written record, especially in light of the record of planning commission meetings found in Ex. 2-10, 2-13, 2-16, and the material found in Ex. 8-31. Certainly a separate document or report adopted by the local decision-makers which specifically addressed this issue would have clearly complied with the written record requirement of the GMA. However, under the limited scope of the challenge contained in this case and the record provided by the County, we fmd Final Decision and Order Case #98-2-00 18 April 5, 1999 Page 4 Western Washington . Growth Management Hearings Board 905 24th WIri SW, Suite 'B-2 PO Box 40953 Olympia. Washington 98504-0953 Phone: 36(}-664-8966 Fax: 36(}-664-8975 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 that petitioners have not sustained their burden of proving that the action of the County in failing to provide a separate document was clearly erroneous. Petitioners also contended that the provisions of RCW 36.70A.070(S)(d)(iv) for the establishment of a "logical outer boundary" were violated because the inclusion of Lot 2 did not prevent an "abnormally irregular" boundary as required by the GMA. The County asserted that in its efforts to "minimize and contain" the more intensive rural development areas or uses it focused predominately on existing areas that were clearly identifiable, and established the boundary predominately based upon the built environment as it existed on July 1, 1990. We reviewed the established boundary for the RVC found at CP 3-36. Additionally, the CP contained a designation and classification qf rural commercial lands analysis beginning at p. 3-10 through 3-27. This is exactly the type of analysis and consideration that the ESB 6094 amendments call for. The boundary map at CP 3-36 contained many irregular boundaries far more significant than the one claimed between Lot 1 and 2 of petitioners' properties. The County was called upon to balance the need to minimize and contain more intensive rural development boundaries with the desire to prevent abnormally irregular boundaries. The delineation of such boundaries does not require a concentric circle nor a squared- off block. The approach taken by Jefferson County complied with the Act. Findings of fact pursuant to RCW 36.70A.270(6) are adopted and appended as Appendix 1. Final Decision and Order Case #98-2-0018 April 5, 1999 Page 5 Western Washington Growth Management HearIngs Board 905 24th Way SW. Suite 'B-2 PO Sox 40953 Olympia, Washington 98504-0053 Phone:~966 Fax: ~975 1 2 3 This is a Final Order under RCW 36.70A.300(5) for purposes of appeal. 4 Pursuant to WAC 242-02-832(1), a motion for reconsideration may be filed 'within 5 ten days of issuance of this fInal decision. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 So ORDERED 5th day of April, 1999. Final Decision and Order Case #98-2-0018 April 5, 1999 Page 6 William H. Nielsen Board ~~r r' /J J! ~~~ Les Eldridge Board Member Western Washington Growth Management Hearings Board 90S 24th Wæ¡ SW. Suite '6-2 PO Box 40953 Olympia. Washington 98504-0953 Phone: 360-664-8966 Fax: 360-664-8975 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 APPENDIX I - Case #98-2-0018 FINDINGS OF FACT Pursuant to RCW 36.70A.270(6) 1. Petitioners are the owners of Lots 1, 2, 3 of the plat of Melwood Terrace. 2. Lot 1 was designated commercial by Jefferson County. 3. Lots 2 and 3 were designated rural residential under the comprehensive plan (CP). 4. The exclusion of Lot 2 from commercial designation did not create an abnormally irregular boundary when the considerations of the need to minimize and contain existing areas or uses of more intense rural development are taken into account. 5. There is no proof that the action of excluding Lot 2 from commercial designation was arbitrarj and discriminatory. 6. The County adequately considered the property rights of all cir.izens in Jefferson County in adopting its CP. 7. Exclusion of lots not currently zoned commercial from consideration for commercial designation in areas of more intense rural development complied with the GivlA. 8. The County provided an adequate written record of harmonizing goals and meeting the requirements of the Act in its CP and related exhibits. Western Washington Growth Management Hearings Board 905 24th Way SW, Suite .8-2 PO Box 40953 Olympia. Washington 985()4-0953 Phone: 360-664-8966 Fax: 360-664-8975 · I II <; . '.J. 6~(64/1998 14:42 ! ~., .~ ,/.. ;' \'. ) . .~. ; /1. {< " \ \. ,..i. · ,,' I \ ,_ ,{_\. ,. ~ ~o·.J '/ . . t" '.., · . ,(: ; ,. \.. (. ; . . .1:'- ,¡ ..;" " .-. ....... .': .:r. -.: .:. ~~ 3603859382 JEFFERSON CO Bor" PAGE 02 - . . - .." . e·'" ~ .. : o 0'- . . . - . -' . . . .. . -. , :- : -".. - - . . . .. --' -=-- -.., . .. ' ... - .. - . .. ....... .. .. .......... . : ~ :::~:..~:¡: "~': -.' . ..;.' ,..-......,;.r.-:tI"1r...., . I..~---.~!~ .~-...~ ;. ..t:. .. . . .~- --.:'.}-,.~-.. '- . .', .'~'---1'.þ.'1t\Ø~ ."-'. '/~:f;~;t~~~W~:~7-~:?'~~':::~" " .. ",-. - .. -- '. . .. .~~...... . ...¡. :·····.1~:..~~. - : . .; .:;~. t:' : ' . . . . . ".,. ;. ."'::".. :...,. J' " --.-... .. . I , - . . '. 295:391 .rouc:U.,. CO'ADAAU Applicable to Aa4 lor: ..cor4i.ng A.a Aqú.z:l.t _~D DDACI I. _I.VDI U'V'LZT. owner of Ûe follawu9 cIe.<:r~d property'. .. -: Mpar.u ..uta, ...: , . DCtIG'If 1. 'l'OtftlSBIP 2' MOns. DlfGZ 1 nS'1'. W.X.. Jl7nUClC c:cmrn' WA3I1D1CTa1. . . DGIDDlG A'f '1'BZ IOlJ'1'B'M'!:5T CORNZA or SAID IZC'ZIOK 1. ALSO DING D:z 80trrJlWl3'r coæma or lAID C:OVZ:MK!K'f un 41 SDCB ALONG 'I'D WEST I.ntZ or 'AID U~ICH 1. ROA~ 0 Ä9'X'ee. 01' :zl "V 1227.15 1'ZZT TO A POINT Qtf 1'D SOI11'BWZS1'2UU.T RICèIT 01' Qt or .JIAD~ 'fO INnIAK I~ cotmn JIOAD-, 'nŒHCJ: ICGTIDS1'UL1' ALONC lAID aIC1IT or WAT ON A CU1\YZ ~ '1'BZ 1Ic:n 'fD ClHftK 01' nICS u.us IOtmI " da9reea 50' 25·W 170.00 nz~ AM ARC DIS'1'A1fCE or ] 34." ru'1', 'rJIENC::Z CONfiNtIINC AI.OHG lAID &IGliT or WAI SOUTH 31 ðe9re.. 06'1 '56.6' 7UTI TmiC% tDVDIG lA1DaIGK'l' or 1f~ BOUD 0 cSe~. 01' 2l-Z 112.11 7UT to It IODI'l'OOH T2Ø BOOTH r,m or IAIg UCUOH 11 'f'BDCB KOR'1'!l II ðllgone, 15 '17-. 117.3' PEZT '1'0 'fa tom or HGI!CNI1f(i 'I't'W.'1'S Dr nrrzuoø COUM'1'Y. . ) r *'. -'"'":' _:.... . .' ..., , 1:1 order t.a ¡JraTida tar the _.ih.tlc. healthful &114 ~o.r. . . ðI"'~nt o~ all log 1ft .IIII1v004 brraca Oft thi. I C~"'i of OCt.obe.J:, U74. do beraby ~&lSt. &Ad a9ue for iÿiiIl &Dd 11'/ "'1.:., a4JúAi. tza tors. exeC1lton, an4 aucc...an and ...ivn- to teep allot the co.,.nanu h.rdDaft.er ..t. torQ. 'fha.. . OO~&Dta are b8raby ude .ppl1C&ble to the &bel...,. d..ct~ I'1Ml proper~. LDella41n, ..ch lot of Jlebood '1'wrrac.. &Dc! are 1t1A41A., 00 ~. OWDer. thenot to the eztaat p¥'Ori~ b.r.1A. !!ie property 4e.crtbed 1n the' f1.1':11~ parac¡:apb, a.boY., ,ball ... bOVD .. JIa¡v004 ~'nace. : ~ c::D9DAMU I.aad 0.. - ~ lob of Ub aubd1 ..!a loa .hall be ...-4 01111' for aon.tr\lctloA of ,J.n,l.-t...Uy n.1ðeAo.. ad fo.J: .a= cfther .tr¡¡ct\l%'e' .. aze CICID.i.C8A~ w1tb 1&ae of \M lot for a ndcleDcel ..~. Joot ~. 1..., !Ie 1Øe4 fDZ' Imltiple-faatly OJ:' oo-.rciaJ. ~. _d ..y U'W a..œ at.rIaCt.ur.. .. ~ ooIUl1.~Dt witb the 1Ø' ..t:ùU..he4. g.. of Eoot "0. 1 awlt 0011I'17 w1tb aD}' lODa9 1A .ffect: 00 tM d&t. the QH U ..tAbUaM4. : 110 lot "7 ~ UT1d.4 Po.JÞ1; br toø.l np1at. 1 . 01:1: 1~, Hñ-l . ~ 55 H..,¡ 185 EXHIBIT "7" - . .. -.. -.-.- .... ---..-- .- .. ": ...-.;..-....-.. , . 09/04/1998 14:42 ... ~~. . '.";.. . . ..' .... . ..... ........ . !':::....~;O ,_"._ :-; ..~ .>' .~._;:,; ::. 3603859382 JEFFERSOl'1 CO BO'" PAGE B3 - . .. .." :. _.....- ........ .-' - .. .. - - _..~.- :>:'~~_:~~:~~~:. ~-~-- ---;;:: : :~ ,~:)t?i):/: ~"_ .." . . - - : . .;-::~:;;..~~.:.~:: ~: ~> . \ . '0 ."\ ~... ~ r4.7.~C"~ - '. . . .... '. :/~:f;~{i~~~~~:~f.~:(:-:";:~~""-· . .. . '.0 : .. .".. - -:-.. -- ',.- ~.' . .~. :... . .:..~-:- /\;f~~!;4'" ;= " " -. .,. ... . , . .. .... . "' - '0 ; .. '~..'..: . ...-- ._,-:....._.~_..-.. ", ._......2:-,.J i.:.-' ~.' -_. I I 1 I " . .. - ....~ ..' .". . . , .: . -2- .. î , , 2. ÞM1Ua; U_ . .0 c!vellåg .hall amt.ai~ 1... tbaA 1000 aquan f_t of flOQr' area em the vro=4 tlcor, ~luh. of open porch.. ud 'far..,e.. J. It:nctU'll Kdc¡ht. - .0 .~ctU%. .hall exceed . Migbt' of 11 &e~ f::c. the qrcnmd liDe, .xc:ep~ O.D t.ou 1, 22, 2J. 24, 25, 2' and 27. On Iota 1, 22. 23, 24, 25, 2' aDe! 27 AO .uuctUZ'"ll .hül ~.,.. -.on than two (J) ~rte. aboft 9%'O\lZhoS ud no .~ ~.11 U(:MI! & Ml;ht of 32 t_t f%'o. t.hII ' rOund l.iaa. . . .' 4. Fmlc.ùa\J - ao fUCM placed on any 101: ah&1l e2:c_d a Mig;b~ of 6 fee~ Irma ~. ,round line. S. IIDbU..,... - Jlo ~bU. =_ sball- be placed OA any lot u4 1IH4 u a ctw.Uåq. ,. IIcdulu' .~. - .0 aodule type ðweUinq =1t .hall J>. loc&uc! CD any 101: anle.. auch ItntUinl¡ =U 18 fl.C~ OD . foaa4at1oZl 1ø . ~n.:: a.f..a1ur to .tan4.&%d CD sita- coa.t:rIaCt.1OA . 7. o-pJ..t:.1cm of Conatruct.1OD - All dwelliDq =its and otMz- .trllc:tU%e. shall 1M CIOIIIphtad "ith.Us o.tIe ~a.r fna ~ date COA.at.rlact.1oa 1. CtI--.nca4. , , .. Ja1MJ.. - .0 lUÜ.JI&la, ot añy II1n4. .hall be kept; CD AY lot uœp~ for doc¡a, ~t-... aQ4 otber boWl.bold pcb. 110 *»9., oats or other bou.ehold peU My be kept, bnd ft aeJ..&at:aåad for co_rci.al purpose.. I. .~ "~-bscJr:. . :Strllc~\In. .rnc:t.e4 OA Dr lot a1I.aU ...~ the ..~-Þack _nqu1~u Nt O\l~ in the -.us, nqul&tJ.on.a th.G å .tbot in 1:be C1tr of I'on tonllelUl, Wub.1nlJt;oA. 10. GutJ... ad ..~. - .0 lot shall Þe ueeS or N1nt&.1.n.4 .. . "'-PiA¡ ana for 'larIH9. or ~bbb. n..h, i&:b.~ ... ...1:8 _1:8d&l.a lIbaU be bpt 1ø aan1tazy cnmt&.iJI.n. 110 pô.,. üall b. dbpoaed of 111 baraiA'I. 11. &11 Iou .ball be .\1bj.ct w an ....-at , f..& .b w14th oÞ4 parallel and adjacent to aU IoU 11M", exoept that tJiia ....-.at ahal1. be 10 f_t 11\ width alOftq lo-t UDe. ~n 10u U'e _t cont.1~U8,for purpo... of inetallaUoa·. -.4 aaiatllauce .ot all .Ul1tJ... and all lou II!sall aUo lie .abject: tit the r1vbt of ø...rh.&ð ____.au of elKUJ,o ad tal.phoa. wir.. D"Per portiou of 1GbI ....n ~4w&,J tNZ'T.~are _u.s. th. ._ w 0CIev-. . - 'Q 55 ·....186 Oc~ 1~. lr'7.. .- ..-....'.--. ".. ...-.--------- 09/04/1998 14:42 .. " '. ""', .. . .'~ .. . "0' . . ,. , 3503859382. JEFFERSON CO Bor- PAGE 04 - . .. . ~~~~:..~:=~.:::{~."::~ ~:~;~:-~.~.. ". - · ;....- ." ~. ~ - J' -'; "-:.. ".. ~ .. -' ....:.. . .. ::".:~..''''~~'-: ¡',..:", .. .. 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OOftUAtII a1\all be b1ad1.n9 OQ all parti.. for a period of 25 :r-n boa t!Mt 4&t:.e gt ncordh'l ud ~l ooatiDue 1ø. atfañ t.bere&ftar, beu9 .\It.oIa&ti~Ur IIXtaade4 tor .uClCtl..i~ period. of ~ (10) y.ua eLle.. a øaU'1:laUt. l1qu.acS II]r . ..jorlty of the ~ OVDen Qf tba lota )au becI ·filed ~or racord .'l~1A~ to c.I:Icg. N.1d OO'NAUU 1D Wbole or p&rt.. u. ""-%'ùlUty - Izl'Yalid&t!oQ of any ODe ot the.. ea"l'Q.&AU .)" 'udgaazat. 01:' coQZ't order ahall a ~o way a!f.ct: err of th ottaar prori.a1oa. -.tI.leb ah.a..ll na&iD 1a ~ull fOl:c:Ie &Del ettect.. I ~ ~ .. 111ft or DDDQ'%'Qr ) )M. CDaatr of Jeff.nOD ) . . CIa thia "'y peraoaally appeand before .. "'l"I'iA 11oyla1 .. .. bow.D to be ~a 1n4.1Yi4u&.l l5I..cribe;S 1ø. ~4 GO "G1I~4 t.be Ylt.bi~ aa4 fOJ:'ll901A, a.~t, ~4 .ckAowl.4~cS tlaat. lie .191'&41 the .... .. Ida frM and -.olaDt.uy IIC~ &Ad .s..ri, tor tU .... ...4 pw:po... tIIer.a ~Uoa..tI. . . . c:na 1IIIde:r ~ bud uti off1eial ..al tbb OCtt:dMr, lt14. 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' ~. ~7 ~ ·¡¡lløl~ ~! ~ , 8 i 8 ~ ~~ J .,.. !" if ;; ~ -f I I .. - I'B . 0 !ìJ z ¡ i ·Is ::J: . i j !i9 :-f ~ r~" \) i~ ¡ .. all~ \0 IJ ¡; 3~ ;z ¡~ ;JJ þQ II ~ ~ . h~ :E ~ " i II CII i5 ~ &~~ I~ CII ¡g Ii Ú' ...¡ I I :1 z "'- I J:I ~ I ~ '-... , I Q , . /1 I '; 1 FILED 97 JUL -I AM 10: 24 2 3 4 5 l,-.,.., ,...~ ~ !JI ... !"UfÇ I r~ ~l{ Œ@¡bnpv'ìlÇH1".'.' h U; fl t, fL. .' i !! F.,.~ . ¡ í ¡. /1 f, L,' ¡.'\ P R - 4: í997 ~,,::'''': ( K:~~ ap r, I.", ~our.ty Sur,p"'¡I',r C ..J'.....; V r-·~rt ~..... \ JEFFER SOH COUHTY HARIANNE W U TERS. CLERK IN THE SUPERJ~R COURT OEbEI'HELES!'ATE OF WASHINGTON IN AND FOR THE COUNTY OF JEFFERSON ) ) ) ) ) 9 RICHARD PORSCH and JANE DOE ) PORSCH, husband and wife, STEVEN ) 10 GRACE and TERESE GRACE, husband ) and wife, WILLIAM WYNN and HELEN ) 11 WYNN, husband and wife, JOHN DOE ) DEAN and VIRGINIA DEAN, husband ) 12 and wife, JOHN DOE SKEFFINGTON and ) 13 ANNE SKEFFINGTON, husband and wife, ) JOHN DOE ORTON and MARJORIE ) 14 ORTON, husband and wife, ROBERT ) ALLEN and JOÞ~ ALLEN, husband and ) 15 wife, WILLIAM BREITWEG and JANE ) JANE DOE BREITWEG, NICHOLAS ) 16 RUTTER and RHONDA RUTTER, ) husband and wife, MÞ2VIN COULTER ) 17 and JANE DOE COULTER, husband and ) wife, MIKE CLARKE and JANE DOE ) 18 CLARKE, husband and wife, JOHN DOE ) 19 MCMORROW and URSULA ) MCMORROW, husband and wife, ) 20 ARNOLD DAY and ELEANOR DAY, ) husband and wife, ) Defendants, ) ) 6 RAY VINES and LIANN VINES, husband and wife, 7 Plaintiffs, 8 vs. 21 22 THIS ~ATTER having come on for trial before the bench on Ma~ch 23 NO. 96-2-00017-4 FINDINGS OF FACT AND CONCLUSIONS OF LAW V~'1 'I () í;:--::' ((-=-) 1 rp)~';í \~ /1I\'~".J~ ..... ~.,;;;:;...r 24 10 and 11, 1997, and the court having heard the testimony and c:Jr.-! 25 sidered the evidence presented, pursuant to CR 52, hereby enters the 26 following: 27 28 FINDINGS AND CONCLUSIONS --1 EXHIBIT "8" Mark Huth Atturney at La" PO Box 303 Port Town:;end. W^ I.JX3(,X Telephone, O(¡() I 37lJ-(J:i4.~ Facsirnik (3()()) 37')_~ 1(,- I I I ~ 1 2 FINDINGS OF FACT 1 . All parties are owners of lots in a residential subdivision 3 designated as Melwood Terrace in Port Hadlock, Washington. The sub- 4 division was created and the plat was recorded on October 15, 1974. 5 6 7 8 9 On its face the plat notifies all owners and the public that the lots are subj ect to the Restrictions and Covenants. There are 34 lots in the subdivision. Eighteen lots are owned among the defen- dants who remain in the lawsuit. Plaintiffs own 3 lots in the sub- division. Since 1974, five homes have been built at Melwood Terrace 10 11 by defendants. No homes have been built since 1982. Several of the 12 lots are undevelopable because of the steepness of the topography. 13 2 . The lots in the Melwood Terrace subdivision are subject ~c 14 Protective Covenants filed for record under Auditor's File Number 15 16 17 18 225397. Section 1 of the Covenants restricts use of all lots ex- cept Lot 1 to construction of single-family residences. Section :!.3 expressly provides that each of the Covenants is separately er- .. forceable. There is no dispute regarding the creation, recording, 19 20 21 or legality of the Covenants at the time of creation. There is no dispute that the plaintiffs were aware of the Covenants. Under the 22 Protective Covenants only lot 1 can be developed commercially. 23 3. In ~a-oa ......../ .../ Plaintiffs originally purchased lots 1, 2, and 3 24 from the developer, Melvin Kivley. Plaintiffs have continlìou.s~~..; 25 owned in partnership or individually, lots 1 and 2 since 1979. y ~ ..-..:..... 26 27 28 the time he purchased these lots, plaintiff Ray Vines knew that "': .- ..... ..... '- - 1 was allowed for conunercial use or rnulti-farnilÿ use pursuarlt tc thE- FINDINGS þJ\]"[¡ CONCLUSIONS --2 Mark Huth Att( rnc~' at La\\ PO Box 303 Port TO\.\11scnd. W^ ()X.'r.x Telephone: (360) 379-05-'13 Facsnnik nh(1 J .,7(1-' I (,- 1 Protective Covenants. He also knew that lots 2 and 3 were subject 2 3 4 5 6 7 8 to Covenant No. 1 which restricted the use of all lots other thë'. i He believed, based G~I I 2 and 3 could be used I lot 1 to single family residential use only. the developer's statements to him, that lots for commercial purposes by the filing of an amendment to the cove- nants. Such amendment was attempted, and many of these same defeD- dants brought suit to disallow the amendment. Tha t amendment pur- 9 10 11 portedly provided that Lots 1, 2, and 3 of Melwood Terrace could be used for commercial purposes. The amendment was disallowed by cour~ order In 1981. Subsequently, plaintiff returned lot 3 to the devel- 12 oper. At a later date lot 3 was owned by the plaintiff's mother, 13 and plaintiff subsequently reacquired lot 3 for love and affectioD. 14 At the time of reacquiring lot 3, it was clear to plaintiff that net 15 16 17 18 19 20 21 only did the residential covenant apply but the other owners would take legal action to enforce the covenant prohibiting commercial de- velopment. 4 . Upon plaintiffs' acquiring lots 1, 2, and 3 In 1979, Lot l could have been developed commercially under the then existing County land use regulations. In 1989, the existing land use regula- 22 tion, the Jefferson County Development Code potentially permi t::ej 23 commercial development of lots 1, 2, and 3. In 1992, the existir¡ç: 24 land use regulation, the Jefferson County Emergency Zoning Ordinance 25 26 27 28 permitted commercial development of lots 1, 2, and 3. In 1994, ......;...,r- 1.-1...':: Jefferson County Zoning Code designated lot 1 only for commerciõl use. In 1996, the LTefferson County Emergency Interim Land Use CCL- FINIilNGS ~J'J[J CONCLUS IONS --"") -' Mark Huth Attorney at La" P.O Box 30:; Port Townsend. W^ %:;(,f; Telephone (:;(¡O) 37(J-II:'.:J:; FéJcsimiJt: I :1hO :;79-:' 1(,':' 1 troIs Ordinance àesignated lot 1 only for commercial use. That 199E 2 Emergency Interim Land Use Controls Ordinance remains in effect õt 3 this time. 4 5 6 7 8 9 10 Jefferson County is planning under the Growth Management. 5. Act, RCW 36. 70Þ.. The County has recently released a Draft Compre- hensi ve Plan for growth management purposes. The Draft Comp:cehen- slve Plan designates lots 1, 2, and 3 as rural and prohibits commer- cial use. The County has continued to delineate the majority of the Melwood Terrace subdivision as residential in its zoning and draft 11 growth management decisions. Over time, the County has designated 12 increasingly fewer lots wi thin Melwood Terrace subdivision as ap- 13 propriate for commercial use. The County decisions are evide:1ce 14 that local land use planners see the area as appropriate for res':"- 15 16 17 18 19 20 21 22 23 dential use only. Plaintiffs argue that their lots may eventual:} be included in an urban growth area. However, their urban planning expert, Mr. Sepler, testified that urban growth areas need to be supported by urban services and that urban services are presently unavailable . Although plainti ffs argue that the relative lõck 0 f I development within Melwood Terrace is evidence that the common Plõn, 1 \ and purpose for the subdivision cannot be ~d, there õre thc:..:- i ~ sands of undeveloped lots in the~ Plaintiffs have failed to I ~ show that the relative lack of development on lots within Melwooc i \-J T01r~m~ ~vfITm~~e other lo~s;dti 6. Plalntlffs have not proven that lots 2 and~ñõt'bel useà for residential purposes due to lack of abili ty for on-s.i tE:-l I I I I I I 24 25 26 27 28 FINDINGS AND CONCLUSIONS --4 Mark Huth Atturney at La\\ PO Box 3( ) Por1 Townsend. W ^ 9X3(,X Teh:phone ()(¡(J, :< 7lJ-() 5-1:; Facsimile (3(,() I :'79-5] (,'" 1 sewage treatment. The testimony regarding the lack of septic avail- 2 ability for lots 2 and 3 was inconclusive. The Court cannot fir:::: 3 that there is no method of sewage disposal that could be utilized tc 4 develop appropriate use of plaintiffs' lots. Testimony revealed 5 6 7 8 9 10 that technology for septic treatment has improved allowing placement of on-site systems on a number of lots which previously would have been unbuildable. Adjacent lots have been permitted for on-si~e sewage treatment systems. Lot 4 has an existing residence served by an on-site system. Lots 5 and 6 are owned by the Graces. 'T" ~ne 11 Graces applied for and received building permits for each lot from 12 the County Building Department in 1992. The Graces applied for and 13 received sewage disposal permits for each lot from the County Healt~ 14 Department in 1992. The Graces have poured footings for a home on 15 16 17 18 19 20 21 22 23 each lot and have renewed their building permits and septic permlts such that they will be able to build in the foreseeable future. Mr. Breitweg testified that he built his residence on one lot and re- tained a second lot in order to be able to expand his existing sep- tic system if necessary. In 1990, Mr. Vines retained an engineer to determine the feasibility of septic disposal for a ten £2-~.3 lot 1~ The report indicates that the lot will support adequa te capacity unit motel on I i . i a seDtlc svs- i . - I i for that propose~~~n~~ a slngle-famlly resldence ~Lots 2 and 21 I t em 0 f 24 25 26 27 28 cantly greater use than could be combined into one residential lot in order to minimize se¡::.- I I I \ld~JE-i I I tic costs. F,'ì -. ~ T'! ~ l of -f c:: ..... 0........... L _.... Jo..""" have failed to prove that their lots have 7 . FINÜINGS ANÜ CONCLUSIONS --5 Mark Huth Atturneyat L¡¡" 1'.0 Box 30:; Port Townsend. WA 'm:;(,f; Telephone: 13601 37lJ-O:;"¡:; Facsimile C3(¡!I) :;79-~ I (J~ 1 only if utilized for commercial purposes. Mr. Sepler and Mr. Arner- 2 son, plaintiffs' real estate expert, did not provide sufficient ev:- 3 dence regarding the lack of economic viability or marketabi li ty c:: 4 5 6 any lot at issue. Mr. Vines did not provide any testimony on the dollar impact of the Protective Covenants to lots 2 and 3. There is no testimony regarding alternative use such as multi-family, duplex 7 8 9 10 or any other uses. There is insufficient evidence to show that the lots could not be sold for residential use. Lot 4 immediately adja- cent to lots 2 and 3 is already occupied by a residence. Lots 5 and 11 6 were purchased and have been permitted for residential purposes. 12 8 . Lot 1 is a corner lot and is triangular in shape. Lot : 13 abuts on Oak Bay Road to the northeast, Kivley Drive to the west and I 14 Lylus Lane to the southwest. Oak Bay Road is a two-lane state high- 15 16 17 18 19 20 21 22 23 way. The conditions of plat approval prohibit access from the lots of Melwood Terrace onto Oak Bay Road. Kivley Drive and Lylus Lane form a loop within the subdivision. Access to Lot 1 could be by way of Kivley Drive. That portion of Kivley Drive that abuts lot 1 is not bordered bv any other of the Melwood Terra~ ~ots. Lots? ~nd ~ ~~~~~~~ - abut Lylus Lane. If lots 2 and 3 were commercially developed, ac- cess could be by way of Lylus Lane. Commercial access Vla Lvl'-1s! - I ! Lane would affect the residents of Melwood Terrace to a S " ar i .Ç" - i .1. ........: __ ..:... ...... I 24 25 26 K' n_li .\. __ \.1 I ¡ t' ~ I ....'-' ! I I - 'IT'- I ~'_.'" I cantly greater extent than commercial access to lot 1 alone Vla ley Drive. 9. Flaintiffs did not prove that commercial development in 27 area has significantly changed the neighborhood. There is DC' 28 FIN[i]NG~ Þ,N[·=ONCL1JSIONS --6 Mark Huth Attorney at La" P.CJ Box 3(J3 I'on Town~cnù. W^ l)~31>S Tt.:Icphonc (3(,(J J 37')_( :'''¡~ FacslInilc (360) 37()-' 11'- 1 mercial development or any development other than residential withi~ 2 Melwood Terrace. The area adjacent to the subdivision OD the no~tt 3 and east has developed since 1979 but not since 1985. The area t:;, 4 the south and west of the subdivision remains undeveloped. The area 5 6 7 across Oak Bay Road to the northeast from lots 1, 2, and 3 had de- veloped into a commercial area by 1985. A mul ti-family apartme~t 8 9 10 house is now existent and has been since 1985 on the east side ef Oak Bay Road across from Melwood Terrace. 10. Relief from the Protective Covenants for lots 2 and 3 would 11 allow commercial development on lots directly bordering lot 4 en 12 which a residence presently exists. The remaining residential .loots 13 would alsc be negatively impacted by increased vehicular traffic 14 into the subdivision, increased visits by non-residents into the 15 subdivision, and by buildings significantly larger than the existing 16 17 18 19 20 housing if commercial development was permitted on lots 2 and/or 3. 11. Plaintiffs' alleged violations of Covenant No.1. These- alleged violations were either minor in nature or not proven by sub- stantial evidence. An RV is parked on one lot. Plain ti ff s argue 21 that this is a violation of No.1, but do not so prove. Plaintiffs 22 allege that the presence of a carport and a wood storage is a vie la- 23 tion of Covenant No. 1 but do not so prove. Plaintiffs have fõilec 24 to show that the minor violations, if any, are evidence of a change 25 26 wi thin the subdivision to a commercial use or evidence of abë.ndoL- rnent of the Covenants. two áutornobi lE:s ::: r Plaintiffs allege that 27 28 vehicles have been abandoned on one of the lots. These vehicles bé- FIN['INGS FJ-JD CONCLUS IONS --7 Mark Huth Att( rnc~' al La\l P.O. Box 3m Pan TOWTl$Cnd. W^ ')¡';:;(,¡'; Tclephone (3(,(j I :;7'j..(J~..J.' J:; ("~1n1ilf" (1/~(1, ~'ìll .: 1. - 1 long to a neighbor's son. There 1S no evidence that they are being 2 commercially stored. There is no evidence that the residential na- ture of the subdivision has changed or that the relevant covenan:! ~ I there is a change of condi- 3 4 abandoned. ~ "_..). ~..I r2 -Ítf Plaintiffs have not proven that has been that would render the perpetuation of the restrictions of nc i substantial benefit to the dominant estate and defeat the object a~d\ 9 purpose of the restrictions. The Plaintiffs have failed to provE: 10 that lots 1, ') L, and 3 are unbuildable, unusable, and have no value. 11 Plaintiffs have failed to prove that the increase in commercial de- 12 velopmen.t an.d traffic along Oak Bay Road renders Plaintiff's 101:::: inappropriate for residential use. Based on the foregoing, the Court enters the following: CONCLUSIONS OF LAW 17 18 court has jurisdiction over the parties and the sub- 19 ject matter. 20 2 . Protecti ve Covenant No. 1 applicable to Melwood TerracE: 21 subdivision. remains ln effect and enforceable as per the terms 22 therein. The Covenant has not been abandoned. Neighborhood con.d:- 23 tions such a~~fp~c~ ~l~g natlon~e not changed sufficiently to render the Covenant desi'2- 24 uner-:.- 25 fcrceable. T11~ õt~ç:r Cº~Tcr....s.l..~,-, oJ..J.\J. v~ula.l-lulJ....... ll....:..:.L...c:;u[, ..L.;.. G.~J.)'I !i .~ 26 rr~ t _ ~ lor :-- -'- ~" ..... rus_ :m~ L L '- ~ . 27 Fia:n1:iffs have failed to prove that they are unable tc ~.. ~ ~ ~ . 28 FIN[,ING5 1'2,:> :IN::::LUSIONS Mark Huth Attorney It L \\ 1'.0 1:10\ 3W !'orl Tovmscnu. W^ lJX'(,X Tclcphom: (3(,(11 :n(¡-()~"¡.~ Fu¡;simik DhO J 37')_~ 1(,- r --0 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 10 11 12 13 14 . I 1 their land in any way due to Covenant No. 1 and therefore there :.:: 2 no prohibition against public policy by limiting the free. use of t- \-. .=. '-..I.. _ 3 land by plaintiffs 4 5 6 7 4 . The relative hardships to plaintiffs and defendants arisi~c from Covenant No. 1 do not favor allowing plaintiffs to put their land to cOITmercial use contrary to that Covenant. 8 5. Plaintiffs' suit should be dismissed with prejudice DATED this ~ day of ~ ' 1997. c1~~ JUDGE Karen B. Conoley Presented by: Mark ~::::s~~ Attorney for Defendants Breitweg, Clarke, Day, Grace, McMorrow, ?orsch, Rutter, and Wynn Copy Received; Approved as to Form; Notice of Presentation Waived: (! ~ . r'J f'J \·Ld·1,.¿-:ii~ !no / d-, .' f"-- ~C11collll :5. Heul. is- WSB}'... No 4 i 1 0 ../~1.\..ttorney for Plaintiffs ,rtZ 'Ì'-<..7J'..:. :\ (' .I,. . . /' 'N.. . ! jf,...... ;' ';,..- ""',-" i , _, " '":'I! '. . 4 .;t- -' {/ ..,-J ;:- ~ ,. ..",/. "7 ., I ..- F~ r:~. = J'J{~;E ]-JJ~ !=",~¡].}:==-~J~' = C)l~.s - - ú M:¡rl-. Huth AUornl'Y ¡It La" J' () H(I\,()3 J 'or! .¡ O\.\1IS<.:IIÙ. \\ /\ l nl.~: ld<.:pl)(H1L' I -,t,O I .' "7'1-11'.;:' FucslJni 1<.: I 3h( J !' "7'/.' ! I - WiIllamsJ(astner&Gibbs PLLC LAW FIRM Dennis D. Reynolds Attorney at Law (206) 233-2924 reynoldd@wkg.com Two Union Square 601 Union Street, Suite 4100 Seattle, Washington 98101-2380 P.O. Box 21926 Seattle, Washington 98111-3926 Telephone (206) 628-6600 FAX (206) 628-6611 December 1, 1999 RECEIVED DEC 0 3 1999 JEFF. COUNTY HEALTH DEPT. 89670.0100 \,'IA FACSIMILE Jefferson County Board of Health c/o Larry Fay, Director 615 Sheridan Department of Environmental Health Port Townsend, W A 98368 Re: Appeal- Ray and Liann Vines Dear Commissioners: Enclosed for service and filing is an appeal filed on behalf of our clients, Ray and Liann Vines. This appeal is filed pursuant to the Jefferson County Code, Title 8, Health and Safety, Section 8.15.210. }.fIr. and Mrs. Vines appeal that certain decision of November 19,1999, denying their revised application for an on site sewage system on Lot 2 of the Plat of Melwood Terrace. A true and accurate copy of the decision appealed from is annexed hereto, by reference made part of this appeal. Mr. and Mrs. Vines intend to present testimony, and a written explanation, providing specifics as to how and why the Jefferson County Health and Human Services Department inappropriately and wrongfully denied the revised application. In part, the denial was based on incorrect information provided by the Jefferson County Department of Community Development in its memo on November 18, 1999. The Vines have never presented a variance request to the Jefferson County Hearing Examiner regarding septic installation on Lot 2. Additionally, there is nothing in the Zoning Code that prohibits use of Lot 2 for a septic system to support commercial business activity on Lot 1. As noted, additional details and a written explanation will be provided at the hearing. 1046667.1 Seattle Tacoma EXHIBIT "9" Jefferson County Board of Health December 1, 1999 Page 2 Thank you for your attention to this appeal. Please confinn via facsimile receipt of our clients' appeal. Very truly yours, WILLlAJ.\1S, KASTNER & GIBBS PLLC ~~ ~ ~"vÚ/ Dennis D. Reynolds DDR:wpc cc: Ray and Liann Vines w/encl. 1046667.1 I JEFFERSON COUNTY ZONIN"G ORDINANCE I AS J\NIENDED FOR Th1PLEMENT A TION of the Jefferson County Comprehensive Plan Adopted & Effective August 28,1998 i\mended by Section 1.60.2 of the Emergency Interim Control Ordinance EXHIBIT "10" 2 SECfION 2 3 -+ REL:\ TIONSHIP OF ZONING CODE TO OTI-ŒR ORDINAt'iCES.A.l'ill PLANS 5 6 7 Subsections: 8 9 2.10 Relationship of ZDning Code to Other Ordinances and Plans 10 2.20 The Comprehensive Plan 1 I 2.30 The Jefferson County - Port Townsend Shoreline Management Master 12 Program 13 2.40 Other Ordinances and Plans 14 15 16 2.10 RELA TrONSHIP OF ZONING CODE TO OTHER ORDINANCES AND 17 PLANS. The Zoning Code provides standards for the use and development of land 18 located in Jefferson County. 19 20 2.20 TIlE COMPREHENSIVE PLAN: The Comprehensive Plan, and its attendant 21 community development plans, are established by state stanlte to be the basic source 22 of reference when evaluating development proposals. Consistent with the 23 requirements of RCW 36A. 70, all development regulations must implement and be 24 subordinate to the policies and standards of the Comprehensive Plan, and its 25 associated community plans. The Jefferson County Zoning Code is a regulation 26 containing prescriptive standards which are in conformance with policies and 27 standards of the Comprehensive Plan. Strict adherence to the rules procedures, and 28 standards established herein is required. 29 30 2.30 THE JEFFERSON COUNTY PORT TOWNSEND SHORELINE 31 MANAGEMENT MASTER PROORAM: In areas of jurisdictional overlap, the 32 provisions of the Zoning Code shall be subordinate to the policies and performance 33 standards contained in the Shoreline Master Program as amended, excepting that 34 regulations contained within the Zoning Code that are more specific than those 35 found in the Shoreline Master Program shall prevail. 36 37 2.40 OTHER ORDINANCES AND PLANS: The provisions of other adopted Jefferson 38 County Ordinances and plans shall be subordinate to the prescriptive standards of 39 the Zoning Code. Page 2 "1 J 4 5 6 7 8 9 o 1 ') - J 4 5 6 .7 :8 .9 ~o _1 'j :3 A .5 :6 7 8 9 o 1 . "1 3 -+ 5 6 7 8 ) ) i ) 3 i ) ) -. , 3 ~ ) SECTION 19 ADMINISTRATIVE AUTHORITY Subsections: 19.10 Administrative Authority 19.20 Application 19.30 Fees 19.40 Administrative Determination 19.50 Public Hearing 19.60 Public Notice 19.65 Calculation of Days 19.70 Hearing Examiner Recommendations 19.80 Planning Commission Recommendations 19.80 Board of Commissioners Decision 19.10 ADMINlSTRATIVE AUTHORITY: The Jefferson County Department of Development Review shall have administrative review responsibilities regarding developments or uses subject to this Ordinance. 1. THE DEPARTMENT OF DEVELOPfvŒNT REVIEW STAFF: The Department of Development Review staff shall review all development proposals for conformance with the Comprehensive Plan and community development plans and their amendments and special chapters; the provisions of this Ordinance, and other applicable Ordinances, laws, and adopted regulations and plans. The Department of Development Review staff shall also coordinate project review with other governmental agencies, technical experts and members of the public. The Department of Development Review shall administer the provisions of this Ordinance, and shall have the responsibility and authority to approve or deny application approval, refer the application to the Hearing Examiner (in instances where variances, conditional use, special use, Planned Unit Development application or appeal of an administrative determination is involved), refer the application to the Planning Commission (in instances where a zoning reclassification application is involved) and upon appropriate clearance shall approve said application. 2. BUILDING OFFJOAL: The Building Official shall review and monitor building permits for confonnance with the standards and conditions contained in this Ordinance. A building permit shall not be issued unless the application is consistent with the standards contained in this Ordinance, or unless the proposed development is exempted from the provisions of this Ordinance. After construction and before occupancy or use of a development, the Building Official shall review the development to detennine whether the pro"isions of the Zoning Ordinance have been met. Page 77 I 1 '- 3 4 5 6 7 8 9 10 1 I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 3. HEALTH DEP.'\RTIv1ENT: The Jefferson County Health Department shall review development proposals subject to this Ordinance regarding adequacy of proposed sewage disposal and water supply systef!1s or other areas of its jurisdiction and forward comments and recommendatIons to the Department of Development Review. 4. DEPARTMENT OF PUBLIC WORKS: The Jefferson County Department of Public Works shall review development proposals subject to this Ordinance regarding adequacy of area circulation, access, roads, drainage systems, signs, and other areas of its jurisdicrion and forward its comments and recommendations to the Department of Development Review . Prior to the approval of an application, the Department of Public Works shall review or inspect those aspects of the proposal within its area of jurisdiction. HEARING EXAMINER: The Jefferson County Hearing Examiner shall review all developments requiring conditional use approval, variance approval, special use approval and all matters involving the appeal of an administrative determination. The Hearing Examiner shall determine Jhe degree to which the proposed project does or does not confonn to the provisions, goals, policies, and objectives of the Comprehensive Plan, community plans and the provisions of this Ordinånce. The Hearing Examiner is assigned the duties and functions of a Hearing Examiner as described in the Planning Enabling Act (RCW 36.70.970) and the Jefferson County Hearing Examiner Ordinance. No. 1-0318-91. Recommendarions developed by the Hearing Examiner shall include written findings of fact. The Hearing Examiner is empowered to issue decisions which constitute recommendations to the Board of County Commissioners on applications for conditional use approval, variances, applications for zoning reclassification, and appeals of administrative decisions granting or denying application approval. PLANNING COM1vfISSION: The Jefferson County Planning Commission shall review all applications for zoning reclassification, amendments to this ordinance, and ordinances creating overlay districts. The Planning Commission shall determine the degree to which the proposed action does or does not conform to the provisions, goals, policies, and objectives of the Comprehensive Plan, corrimunity plans and the provisions of this Ordinance. The Planning Commission is assigned the duties and functions of a Planning Comnússion as described in the Planning Enabling Act (RCW 36.70.970). Rerommendations developed by the Planning Commission shall include written findings of fact The Planning Commission is empowered to issue decisions which constitute recommendations to the Board of County Commissioners on applications for zoning reclassification, ordinances which create overlay districts, and amendments to this Ordinance. 5. 6. Page 78 2 BEFORE THE JEFFERSON COUNTY BOARD OF HEALTH 3 4 Raymond and Liann Vines, Appellant, Case No.: No. SEP98-0007 5 6 vs. DECLARATION OF SERVICE 10 The undersigned, CAROLYN COSTAIN, declares as follows: RECEIVED FEB 0 9 2000 JEFF. COUNTY HEALTH DEPT. 7 Jefferson County Board of Health, Appellee 8 9 11 1. That at all times mentioned herein, she was over the age of eighteen (18) years and a 12 citizen ofthe United States. 13 14 2. That on the 9th day of February, 2000, she deposited into the U.S. mail, with proper 15 postage affixed, the following documents: Hearing Memorandum on Behalf of the Jefferson 16 County Board of Health; Affidavit of David Alvarez; addressed to Dennis Reynolds, Esq., 17 Williams, Kastner & Gibbs, PLLC, P.O. Box 21926, Seattle, WA 98111-3926. 18 19 20 Executed under penalty of perjury this 9th day of February, 2000, at Port Townsend, 21 Washington. 22 23 24 25 26 27 28 DECLARATION OF SERVICE Page 1 C~~OL~ copy IDELANNE DALZELL PROSECUTING ATTORNEY FOR JEFFERSON COUNTY Courthouse - P.O. Box 1220 Port Townsend. WA 98368 (360) 385-9180 Human Services CERTIFIED, RETURN RECEIPT REQUESTED January 31, 2000 Dennis Reynolds William, Kastner & Gibbs PLLC P.O. Box 21926 Seattle, W A. 98111-3926 Re: Ray Vines Appeal Hearing Continuation Dear Mr. Reynolds, This letter is to confirm that the appeal hearing with the Jefferson County Board of Health concerning Ray Vines' application for an onsite sewage system permit has been continued. The continued hearing has been scheduled for Thursday, February 17,2000 from 2:30 to 3:30 p.m. Please note that the hearing will be conducted in the auditorium of the Jefferson General Hospital rather than Health and Human Services. The hospital is located at 834 Sheridan Street, Port Townsend, W A. (approximately one block past and across the street from the health department) The Board of Health is scheduled for a joint meeting with the Hospital Board at 3:30 p.m. Please contact this office if you have any questions. ~inc ly, . t I. ~ . -------? .Q . CLL..-~1 f.-/ ''6' ~ Lawrence D. Fay Jr. /) Environmental Health Director - n.J .¡¡ ,.:¡ :æ. ~: ~~::E :t:£- t: G) ~"" Om E .J] ~....>2 ....... ·~o8.E M ~::~.E _ Q.C Q) CL ! -4) ~ ~ °u"'- Q..G).Eg 3a:~c3 Q) e? M 0 ~ M "" Lt) 00 ~ . . C\1 0) \.D . Cb .- .- 0 Cb C\1 C\1 0 ~ en 0) 0 'Ö M C\1 ï6 .- \.D I 0 C\1 .- .. ¡:; 0) .- <II :>t .- CD.- "'" C\1 C "'" ° (I) C\1 "800 :>t <II t:t: 00) lj ¡...¡ x a. S co en 0 ÑI<!; æ !¥ In ~ -r-! ¡r¡ o!I:?: CD ¡:; æ .~ æ ¡...¡ .,; ~ ..Q ¡:; lio ñi( ) ~ -~ f< o!I (I) iñ.- ~ -i G> ~ ( ) Q E CD '" 'f~ I 1'4 ~(:l¡ .,;. J CD .;! -i8J c æ õ:i c ~ ~~ c a¡ 0 0 s o!I G> "ã! lI:o!I ~~ "- -!!: 0; E "ii! U ë -(I) <= 1:3 -c EE -' '" - ð3 e ,fU1 In 'E CD Xi "'0 E~ ~ .s A iñ 0 ð c8- ~§ .a.æ (I "- II: £8 ~ 0 "- . OPMENTAL BILlTIES S66 ~ IPdV OOSt WJo.:l Sd /385-9400 ALCOHOL/DRUG ABUSE 360/385-9400 FAX 360/385-9401 .. " ,. . - ~. '>~.;. .~._:;..._", .~_~¡ _,z~ ':~.,::, .. " . ,·.·..l , '.:..._~ .;I;... ;.:..'..._ 1.:._..... ...I~, . I. _, },...' .:..~'. "-. . . ~-~-_.. -,".--'.' ~.... .' ,8 ,) J:',,,,.... __..~ _..i. ..< ~ SENDER: e , '-, £ 0 "C . Complete items 1 and/or 2 for add¡"œrvS;' ~ iñ . Complete items 3, 4a, and 4b. CD . Print your name and address on t ev 0 is form so that we can return this I!! card to you. c:\, ,A. nnnn ~ . ~:~~. this form to the front of the mailpiece, f Eßte U-c"",, s~\loes not .. . Write "Return Receipt Requested'on the mailpiece below !!J..e.8J1i.c{iJrIVT1ber. ~ . ~~v~:~ Receipt will show to whom the ~f~ ~~ni'hfl date Consult postmaster for fee. S 3. Article Addressed to: HE a. Article Number -g P 166 131 212 ãi ã. E o u I also wish to receive the following services (for an extra fee): 1:0 Addressee's <\ddress 2. 0 Restricted Delivery ; r.J - ~ ãi u CD II: c .. :J ~ ãi -"" vertified II: o Insured g OeOD ~ Dennis Reynolds William, Kastner POBox 21926 & Gibbs PLLC 4b. Service Type o Registered o Express Mail o Return Receipt for Merchandise 7. Date of Delivery r¡:.'"Q " n 'in!ì:¡ 8. Addressee's Address (Only if requested and fee is paid) .. o - :J o > ,:,: c (I s:. I- Seattle WA 98111-3926 5. Received By: (Print Name) 02595-98-8-0229 Domestic Return Receipt ..,.~ ..........« ":'....... ,.... -." ,:-~... ...- ..--...., County Health & Human Services Memorandum To: Jefferson County Board of Health From: Larry Fay Environmental Health Director I£f Date: 2/9/00 Re: Ray Vines Appeal Hearing Continuation This memo has been prepared in response to appellant's exhibits 7a, 7b and 7c. These exhibits have been submitted as evidence that environmental health has in the past issued permits for septic systems supporting commercial uses where all or parts of the septic system have been installed on residential properties. 7a: Circle and Square The septic permit was issued on 10/24/96. The parcel is approximately 2.5 acres in area. At the time the application was submitted, the easterly half, more or less was, zoned C-2. The westerly portion was zoned for residential use. While the exact location of the zoning boundary is uncertain, it is possible that all or part on the onsite sewage system were located in the residential portion of the property. A possibly difference between this project and the Vines application is that the entire development has occurred on a single lot which happens to be split by the zoning boundary whereas Mr. Vines has proposed placing the drain-field on an entirely different lot in a different zone. 7b: Paradise Interiors The permit application was received on 2120/97 and the permit was issued on 3/10/97. The entire project is located on a single lot. At the time the application was submitted the entire lot was zoned C-2. With the adoption of the Jefferson County Comprehensive Plan in 1998, the western portion of the lot was "downzoned" to general use. 7c Swan Market The application was received on 6/5/96 and the permit was issued on 6/27/96. The project is located on several lots; the buildings septic tank and pump chambers on one lot with the drain-field and reserve area on two adjacent lots. At the time the applications were submitted the entire project was within an area zoned C-2. With the adoption of the Comprehensive Plan in 1998, lot 17 was zoned for general use. HEALTH DEPARTMENT 360/385-9400 ENVIRONMENTAL HEALTH 360/385-9444 DEVELOPMENTAL DISABILITIES 360/385-9400 ALCOHOL/DRUG ABUSE 360/385-9400 FAX 360/385-9401 ~ .....cL ~'''--' '~ .... ' - J . LAND USE ZONING DISTRICTS \.éi~/ TRI-AREA HIGHWAY GENERAL ~ ~COMMERCIAL DISTRICT (C2). -...,"-..... .........- Gl i'.:'~ . .... if~ .. . . ¡r.;,. ; "I~' ...... 1',".)11 ; : ;;. I ~: ·..·f.. .~ >,t ..... :. 1'1'1 I ,.~.!~t;. ~~I ·,'''ri ,':-r.:l:í1'=(' .,'1 ft.L C'Í/"J. _~ ·1'1" ..., .Jhu§f.U)L 1Q01.. '..f ,( r ( ( '-J:\':.~___. ~ :::,,~r ".II-!,"~~ .. .. , Ih. ;::a....".-t .c. þ ~....;~ " .' - .'-:._.¿. ~~. ---.-- ....: :~. '!·,'~I~r./~('\ "~"'''.2' ..... ~,. ~'''''''''i "'\ . I '~f (; / .~.-J;~-~--~...,\ 'j 'J,;;1_ I c: ·I .~c:r, ·.\,n IT ...:)...~.. ..' .i,. e:"'-:,!r.: ....C':'.. ., ,,' ^ f) . ¡;:Xcn-t'-'L-I:.I..e..k:~ I ~::~! ~ r'£'L.1NE' 0 . ....:. ...... ~h~ F:,:,,,,..j Xiiff.'· .....--.- -_. ..-.-.. """r''''o..".."...,rt·~tUrt.\·._ J ".,. 'f'1II!'t i_ ..., ..I·.... I.. I". ~'"IH.. .. .... j ""''''-'''_, .._.._.... to...._ .&04 ......... ... _........,. _h '~. =!~':."'"'I_ _ ...,..., __ .. (. í ¡ JEfFEP.:CII I "'~RA111D ÞA'''IWI.r.tJIIMft' STST1!M .... .- .... . -. -."........ - ..... ....-......-- .' -- ff:a ... M - ::t1::: 1:':"'- ~ '" ~ IIJ ~ rn i~- C\l u v. 2 I ; .' I .- P v. -ä9=- -..'..- '.. ,1. g: SC'ALE o I H H H I !Ion ROO i II, 1200 Ff.F:T .\I·t:l'!=:l· '!:1. f !'!11 MAP 12 Wi~Kastner&Gibbs PILC LAw FIRM Dennis D. Reynolds Attorney at Law (206) 233-2924 dreynold@wkg.com Two Union Square 601 Union Street, Suite 4100 Seattle, Washington 98101-2380 P.O. Box 21926 Seattle, Washington 98111-3926 Telephone (206) 628-6600 FAX (206) 628-6611 February 8, 2000 89670.103 VIA FACSIMILE Mr. Larry D. Fay, Jr. Environmental Health Director Jefferson County Health and Human Services Castle Hill Center 615 Sheridan Port Townsend, W A 98368 RECEIVED FEB 0 9 2000 JEFF. COUNTY HEALTH DEPT. Re: Appeal Hearing - Ray Vines (SEP98-0007) Dear Larry: Enclosed please find Mr. and Mrs. Vines' supplemental brief, and the declaration of David Jensen. We are mailing an original and seven hard copies of the brief and declaration today. This is to acknowledge receipt of the certified mail providing notice of the continuation of the Vines' appeal to be heard on Thursday, February 17, 2000 at 2:00 p.m. Very truly yours, WILLIAMS, KASTNER & GIBBS PLLC ~ - ~ ~r'JJ..- Dennis D. Reynolds DDR:wpc Enclosure cc: Ray and Liann Vines (w/encl.) David W. Alvarez, Deputy Prosecuting Attorney (w/encl.) ~chard Marc Sepler (w/encl.) 1062004.1 Seattle Tacoma 1 2 3 4 5 6 RECEIVED FEB 0 9 2000 JEFF. COUNTY HEALTH DEPT. BEFORE THE JEFFERSON COUNTY BOARD OF HEALTH 7 In re the matter of: RAYMOND and LIANN VINES, NO. SEP98-0007 APPELLANTS' SUPPLEMENTAL BRIEF 8 9 10 11 12 13 14 15 16 17 18 I. INTRODUCTION Some members of the Jefferson County Board of Health have requested briefing on two points. First, analysis has been requested on the effect, if any, of the superior court's decision in the case of Vines v. Porsch. et al., Jefferson County Superior Court Cause No. 96-2-00017-4. Second, a request was made as to what effect, if any, certain conditions, covenants and restrictions ("CC&Rs") for the plat ofMelwood Terrace may have upon the appropriate decision on the Vines' appeal by this Board. For reasons stated below, Mr. and Mrs. Vines submit that neither the Superior Court action, nor the CC&Rs, have any impact or bearing on their appeal. It remains the Vines' position that use of lot 2 for septic to serve lot 1 is not prohibited by the zoning code. In fact, septic is an approved use under the applicable residential zoning for lot 2. Because the Department of Planning and Community Development can point to no explicit prohibition on use of lot 2 for septic, and because it is conceded that there is no public health reason to deny septic use on lot 2, the Vines' appeal must be granted. II. RULES OF CONSTRUCTION OF ZONING CODE 19 20 21 22 23 24 25 The Washington Real Property Deskbook.1f 97.3(2)(a) provides rules of construction for zoning codes. These rules are as follows: APPELLANTS' SUPPLEMENTAL BRIEF - 1 Williams. Kastner & Gibbs PLLC Two Union Square, Suite 4100 Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600 1061869.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Generally, statutes in derogation of the common law are to be strictly construed. Zoning ordinances which hinder or prevent owners from freely using their property are thus strictly construed. Keller v. City of Bellingham, 92 Wn.2d 726, 600 P.2d 1276 (1979); Hauser v. Arness, 44 Wn.2d 358, 267 P.2d 691 (1954). Faced with a choice of construction, a court may choose to construe a tenn, provision, section, or the entire ordinance in such a manner as to give owners less restriction on the use of their property. Morin v. Johnson, 49 Wn.2d 275,300 P.2d 569 (1956). * * * A corollary to the strict cònstruction rule is that zoning ordinances will not be extended to cases not clearly within their scope. State ex reI. Standard Mining & Dev. Corp. v. City of Auburn, 82 Wn.2d 321, 510 P.2d 647 (1973). In determining the proper scope of the ordinance, the court will ftrst look at the language ofthe ordinance. Keller, 92 Wn.2d 726. A closely related principle is that the absence of a restriction in an ordinance precludes the conclusion that a restriction arises by inference. Hobert v. Marque, 5 Wn. App. 222, 486 P.2d 1140 (1971). Generally, the courts hold that if an ordinance was meant to restrict a particular activity, it should expressly so provide. Codes often contain a section addressing how to deal with uses not identifted in the code. Courts often articulate the following general rule: the basic rule in land use law is still that, absent more, an individual should be able to utilize his own land as he sees ftt. Norco Constr.. Inc. v. King County, 97 Wn.2d 680,684,649 P.2d 103 (1982), cited in West Main Assocs. v. City of Belle vue, 106 Wn.2d 47, 720 P.2d 782 (1986). As can be seen from the stated rules of construction, under the normal rules of construction, the 18 planning staff is not allowed to create rules or prohibitions on use of lot 2 for septic, where none exist in the zoning code. This is particularly so because as shown in Mr. and Mrs. Vines' exhibits, the County has provided code interpretations to other property owners which have allowed use of septic within a residential zone to serve a commercial use on an adjacent, commercially zoned property. Further, any doubts or inferences as to possible regulation under the zoning code are resolved in favor of the Vines. III. ANALYSIS 19 20 21 22 23 24 25 \ Enclosed for review by the Board of Health are the Findings of Fact and Conclusions of Law in the case of Vines v. Porsch. A review of the pleadings ftled in the matter indicates that the Vines APPELLANTS' SUPPLEMENTAL BRIEF - 2 Williams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600 1061869.1 1 contended that the CC&Rs for the plat ofMelwood Terrace should be rescinded or terminated for a 2 number of reasons. The primary argument was that the common plan and purposes for the subdivision 3 could not be effectuated as there has been little development within the plat, because the soil did not 4 perk. A more specific allegation was that lots 2 and 3 owned by the Vines could not be used for 5 residential purposes due to lack of ability for on-site sewer to serve residences placed on thesetwo 6 parcels and, therefore, relief should be pr.ovided rrom the CC&Rs. The Vines also alleged violations of 7 the covenants such that there had been a failure to follow the covenants over time, therefore justifying a 8 declaration that the CC&Rs were no longer of legal force or effect. 9 The court ruled against the Vines because there was a failure of proof. Therefore, it is 10 established that the CC&Rs still apply to the Vines. On this one point only, there appears to be 11 agreement. While is it not certain exactly why the Planning Department takes the position that septic 12 cannot be utilized on lot 2 to serve lot 1, the Vines invite the members of the Board to review the 13 attached Findings of Fact and Conclusions in the Porsch litigation. Therein, there is absolutely no 14 discussion of the use of lot 2 for septic under the zoning code. The matter of zoning was not before the 15 court in the Porsch case and Jefferson County was not a party to that case. 16 Turning to the CC&Rs, paragraph 1 of the protective covenants for the plat ofMelwood Terrace 17 states is full: 18 19 20 21 1. Land Use. The lots of this subdivision shall be used only for construction of single- family residences and for such other structures as are consistent with use of the lot of a residence; except, Lot No. 1 may be used for multiple-family or commercial purposes and may have such structures as are consistent with the use established. Use of Lot No.1 must comply with any zoning in effect on the date the use is established. 22 Condition NO.9 of the CC&Rs states: 23 24 25 i 9. Structure Set-backs - Structures erected on any lot shall meet the set-back requirements set out in the zoning regulations then in effect in the City of Port Townsend, Washington. (Emphasis supplied.) APPELLANTS' SUPPLEMENTAL BRIEF - 3 Williams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 Mail Address: P.O. Box: 21926 Seattle, Washington 98111-3926 (206) 628-6600 1061869.1 1 2 3 4 5 6 7 8 9 Construing condition 1 of the CC&Rs, there is a prohibition on "structures" that are not either (1) a single family residence or (2) structures which are consistent with the use of the lot for a residence. There are no blanket use restrictions in the CC&Rs, only prohibitions on commercial structures. The question becomes whether a "out of sight, out of mind", underground septic system which is of the same design and construction of that associated with a single-family residence is a prohibited "structure" within the meaning of the CC&Rs. As explained below, enforcement of the CC&Rs is not an appropriate role for Jefferson County. Nevertheless, Mr. and Mrs. Vines submit that the correct answer is that a septic system is not a "structure" within the meaning of the CC&Rs. Therefore, placement of a septic system on lot 2 does not violate the CC&Rs in the slightest. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The term "structure" has a consistent meaning to relate and to involve some sort of erection or edifice that is artificially built up as to be visible. See, for example, 20 Am. Jur. Covenants, § 129, Definitions of "Building" and ,"Structure." Black's Law Dictionary, 7th ed., p. 1436 (1999) defines a "structure" as: "Any construction, production or piece of work artificially built up or composed of parts purposely joined together. . . [a] building is a structure." While the zoning code is not applicable to construction of CC&Rs, it is interesting to note that the Jefferson County code likewise distinguishes between a "structure" and a "septic disposal system." The term structure is defined in the code at § 18.15.920 as follows: "Structure" means that which is built or constructed. A structure is an edifice or building of any kind, or any piece of work artificially built up or composed of parts joined together in some definite manner, which requires an approval. [Ord. 9-94 § 3.10(90)] The term "sewage disposal system" is separately defined in the Jefferson County code at § 17.10.550 as follows: . \ "Sewage disposal system" means manufactured devices for the collection, treatment and disposal of organic waste water generated by residential, industrial and commercial APPELLANTS' SUPPLEMENTAL BRIEF - 4 Williams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 Mail Address: P.O. Box 21926 Seattle, Waslúngton 98111-3926 (206) 628-6600 1061869.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 establishments. (Sewage disposal systems may consist of engineered or conventional on- site septic systems, or community sewer systems.) The obvious implication is that by separately defining the terms "structure" and "sewer disposal system", there is intent that there is a difference between the two terms. It is interesting to observe that condition 9 of the CC&Rs applies the structure setback requirements in effect for the City of Port Townsend, Washington. The plat ofMelwood Terrace has never been located in the City of Port Townsend. The obvious intent of the plat developer was not to make parallels between the CC&Rs and the Jefferson County Zoning Code. It is significant that the CC&Rs for the Plat ofMelwood Terrace preclude only commercial structures on lot 2, not commercial uses. In this regard, the Vines bring to the attention of the Board members rules of construction applicable to CC&Rs. Specifically, a strict rule of construction applies to CC&Rs, such that they are strictly construed against limitations upon use of property. This strict construction is similar to the construction of a zoning code. 20 Am. Jur. Covenants, § 172 states: Covenants and agreements restricting the :tree use of property are not favored by the law and will be strictly construed against limitations upon such use. Such restrictions will not be aided or extended by implication or enlarged by construction to affect lands not specifically described, or to grant rights to persons in whose favor it is not clearly shown such restrictions are to apply. Doubt will be resolved in favor of the unrestricted use of property, so that where the language ofa restrictive covenant is capable of two constructions, the one that limits, rather than the one which extends it, should be adopted, and that construction should be embraced which least restricts the :tree use of the land. The installation of a drainage culvert has been allowed despite a prohibition on structures in common areas specified in CC&Rs, since a homeowners association had the right to install sewer and water lines to serve a plat, and installation of the culvert was akin to and no more invasive than 21 22 23 24 25 installation of sewer and water lines. Klein v. Trout Lake Preserve Homeowners Assn., 178 A.D.2d 967, 579 N.Y.S.2d 230 (1992). Obviously, water and sewer lines could be installed in the plat of , Meiwðod Terrace to serve all users, including commercial uses permitted on lot 1. Yet, these lines APPELLANTS' SUPPLEMENTAL BRIEF - 5 Williams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 Mail Address: P.O. Box 21926 Seattle, Washington 98111·3926 (206) 628-6600 1061869.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 would transverse lots 2 and 3. This situation would not offend the zoning code any more than placing septic on lot 2. The Vines have responded to the request of certain Board members to discuss the CC&Rs. However, it is respectfully pointed out that interpretation or enforcement of CC&Rs is of no business of Jefferson County. A covenant "means a covenantor's promise to a covenantee to do or to refrain £rom doing something, which the covenantee.may enforce in court." Wash. Pract. Vol. 17, §3.1, p. 121. The enforcement of a covenant among the original parties is a matter of contract law, while the enforcement of the covenant between successor parties is analogous to the contract doctrines of assignment of rights and delegations of duties. Supra at §3.2, p. 124. The zoning code, by contrast, is not an agreement enforceable by private parties, but a piece of legislation enacted by the elected representatives of the general public, and enforceable by government officials of the executive bra~ch. See, e.g., Village of Euclid. Ohio. et. al v. Ambler Realty Co., 272 US 365,47 S. Ct. 114, 71 L. Ed. 303 (1926). 15 The courts of Washington have long recognized that these mechanisms for restricting the use of land are unrelated, particularly since the enforcement mechanism for covenants is by private parties through an action for an injunction, see, e.g. Sandy Point Improvement Company v. Huber, 26 Wn. App. 317, 613 P.2d 160 (1980), and the enforcement mechanism for zoning code violations is either a civil or criminal action prosecuted by the local government. See, e.g., City of Mercer Island V. Steinmann, 9 Wn. App. 479, 513 P.2d 80 (1973). The Washington Courts have stated the relationship between 16 17 18 19 20 21 22 23 24 covenants and applications for use under a zoning code: Although a private covenant may provide grounds for a separate action to enjoin a proposed usage of land, the general rule is that such a covenant is not grounds for denial of a zoning variance. McQuillin, Law of Municipal Corporations § 25.09 (3rd ed. 1. , Kightlinger, 1916); Suess v. Vogelgesang, 151 Ind. App. 631,281 N.E.2d 536 (Ind. , App. 1972). 25 APPELLANTS' SUPPLEMENTAL BRIEF - 6 Williams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600 1061869.1 1 Martel v. City of Vancouver (Wash.) Bd. of Ad¡ustment, 35 Wn. App. 250, 257, 666 P.2d 916, (Wn. 2 App. 1983), cited with approval in Mains Farm Homeowners Ass'n v. Worthington, 64 Wn. App. 171, 3 180,824 P.2d 495 (1992). 4 In sum, the private agreements embodied by covenants must be enforced by the private parties to 5 those agreements, and may not be enforced by local government officials (who are not parties to those 6 agreements). While government officials have a duty to enforce the duly enacted zoning code, they 7 have no duty~ or even right, to enforce private covenants. 8 IV. CONCLUSION 9 For the reasons stated herein, and well as the Vines' brief on appeal, the exhibits submitted by 10 the Vines, the admissions of record, and the testimony of the parties, the Vines' appeal should be 11 granted. 12 DATED this í day of February, 2000. 13 14 15 16 17 18 19 20 21 22 23 24 WILLIAMS, KASTNER & GffiBS PLLC B~ _\~/~ Dennis D. Reynolds WSBA#04762 Attorneys For Appellants 1 25 APPELLANTS' SUPPLEMENTAL BRIEF - 7 Williams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600 1061869.1 .. e 1 2 3 4 5 FILED 97 JUl-1 AM 10: 24 ( " &r« fè f1ù fE n Po . ,... ~10[; \#ltfm ~t(t~ APR - 41997 !,:¿.! Kitsap Cour~ty SuperIor CC~rt JEFFERSON COUHTY MAIUANNE W.U !ERS. CLERK ( IN THE SUPERJ~R COURT 01bE1rHEUS!'ATE OF WASHINGTON IN AND FOR THE COUNTY OF JE FFERSON 6 RAY VINES and LIANN VINES, husband and wife, 7 Plaintiffs, ) ) ) ) ) 9 RICHARD PORSCH and JANE DOE ~ ) PORSCH, husband and wife, STEVEN ) 10 GRACE and TERESE GRACE, husband ) and wife, WILLIAM WYNN and HELEN ) 11 WYNN, husband and wife, JOHN DOE ) DEAN and VIRGINIA DEAN, husband ) 12 and wife, JOHN DOE SKEFFINGTON and ) 13 ANNE SKEFFINGTON,husband and wife, ) JOHN DOE ORTON and MARJORIE ). 14 ORTON, husband and wìfe, ROBERT ) ALLEN and JOAN ALLEN, husband and ) 15 wife, WILLIAM BREITWE~ and JANE ) JANE DOE BREITWEG, NICHOLAS ) 16 RUTTER and RHONDA RUTTER, ) husband and wife, MARVIN COULTER ) 17 and JANE DOE COULTER, husband and ) wife, MIKE CLARKE and JANE DOE ) 18 CLARKE, husband and wife, JOHN DOE ) 19 MCMORROW and URSULA ) MCMORROW, husband and wife, ) 20 ARNOLD DAY and ELEANOR DAY, ) husband and wife, ) Defendants, ) ) 8 vs. 21 22 23 THIS MATTER having come on for trial before the bench on March NO. 96-2-00017-4 FINDINGS OF FACT AND CONCLUSIONS OF LAW iÝ~" 'l.' () 24 10 and 11, 1997, and the court having heard the testimony and con- 25 sidered the evidence presented, pursuant to CR 52, hereby enters the 26 folJ,owing: ; ì 27 28 FINDINGS AND CONCLUSIONS --1 - Mark Ruth Attorney at Law . P.O. Box 303 Port Townsend, WA 98368 Telephone: (360) 379-0543 Facsimile: (360) 379-5167 ;; ( . ( f\ 1 2 FINDINGS OF FACT 1. All parties are owners of lots in a resïäential subdivision 3 designated as Melwood Terrace in Port Hadlock, Washington~ The sub- 4 5 6 7 8 9 10 division was created and the plat was recorded on October 15, 1974. On its face the plat notifies all owners and the public that the lots are subj ect to the Restrictions and Covenants. There are 34 lots in the subdivision. Eighteen lots are owned among the defen- dants who remain in the lawsuit. ~ Plaintiffs own 3 lots in the sub- di vision'. Since 1974, five homes have been built at Melwood Terrace 11 by defendants. No homes have been built since 1982. Several of the 12 lots are undevelopable because of the steepness of the topography. 13 The lots in the Melwood Terrace subdivision are subject to 2. 14 Protective Covenants filed for record under Auditor's File Number 15 16 17 18 19 20 21 225397. Section 1· of the Covenants restricts use of all lots ex- cept Lot 1 to construction of single-family residences. Section 13 expressly provides that each of the Covenants is separately en- forceable. There is no dispute regarding the creation, recording, or legality of the Covenants at the time of creation. There is no dispute that the plaintiffs were aware of the Covenants. Under the 22 Protective Covenants only lot 1 can be developed commercially. 23 3. Plaintiffs originally purchased lots 1, 2, and 3 in 1979 24 from the developer, Melvin Kivley. Plaintiffs have continuously 25 26 27 owned in partnership or individually, lots 1 and 2 since 1979. At th~ time he purchased these lots, plaintiff Ray Vines kne~ that lot \ 1 was allowed for commercial use or multi-family use pursuant to the 28 FINDINGS AND CONCLUSIONS --2 Mark Huth Att9mey at Law P.O. Box 303 Port Townsend, WA 98368 Telephone: (360) 379-0543 Facsimile: (360) 379-5167 - /" ( ~ . 1 Protective Covenants. He also knew that lots 2 and 3 were subject 2 to Covenant No. 1 "which restricted the use 9f åìl lots other than 3 lot 1 to single family residential use only. He believed, based on 4 the developer's statements to him, that lots 2 and 3 could be used 5 for commercial purposes by the filing of an amendment to the cove- 6 7 nants. Such amendment was attempted, and many of these same de fen- dants brought suit to disallow the amendment. That amendment pur- 8 9 10 portedly provided that Lot~ 1, 2, and 3 of Melwood Terrace could be used for commercial purposes. The amendment was disallowed by court 11 order in 1981. Subsequently, plaintiff returned lot 3 to the devel- 12 oper. At a later date lot 3 was owned by the plaintiff's mother, 13 and plaintiff subsequently reacquired lot 3 for love and affection. 14 At the time of reacquiring lot 3, it was clear to plaintiff that not 15 16 17 18 19 20 21 only did the residential covenant apply but the other owners would take legal action to enforce the covenant prohibiting commercial de- velopment. 4. Upon plaintiffs' acquiring lots 1, 2, and 3 in 1979, Lot 1 been developed commercially under could have the then existing County land use regulations. In 1989, the existing land use regula- 22 tion, the Jefferson County Development Code potentially permitted 23 commercial development of lots 1, 2, and 3. In 1992, the existing 24 land use regulation, the Jefferson County Emergency Zoning Ordinance 25 permitted commercial development of lots 1, 2, and 3. In 1994, the 26 27 28 Jeffefson County Zoning Code designated lot 1 only -for commercial use. In 1996, the Jefferson County Emergency Interim Land Use Con- FINDINGS AND CONCLUSIONS --3 Mark Huth .___ Attorney at Law . P.O. Box 303 Port Townsend, WA 98368 Telephone: (360) 379-0543 Facsimile: (360) 379-5167 - ~ ( fII\ 1 troIs Ordinance designated lot 1 only for commercial use. That 1996 2 Emergency Interim Land Use Controls Ordinance remains in effect at 3 this time. 4 5. Jefferson County is planning under the Growth Management 5 Act, RCW 36.70A. The County has recently released a Draft Compre- 6 7 8 9 hensi ve Plan for growth management purposes. The Draft Comprehen- sive Plan designates lots 1, 2, and 3 as rural and prohibits commer- cial use. The County has çontinued to delineate the majority of the 10 Melwood Terrace subdivision as residential in its zoning and draft 11 growth management decisions. Over time, the County has designated 12 increasingly fewer lots within Melwood Terrace subdivision as ap- 13 propriate for commercial use. The County decisions are evidence 14 that local land use planners see the area as appropriate for res i- 15 dential use only. Plaintiffs argue that their lots may eventually 16 be included in an urban growth area. However, their urban planning 17 18 19 20 21 22 23 24 25 26 27 28 expert, Mr. Sepler, testified that urban growth areas need to be supported by urban services and that urban services are presently unavailable. Al though plaintiffs argue that the relative lack of development within Melwood Terrace is evidence that the common plan and purpose for the subdivision cannot be~ed, there are thou- sands of undeveloped lots' in the~ Plaintiffs have failed to '\ ~ \ show that the relative lack of development on lots within Melwood Terr~m~ ~vfITm~;::;:;"e other lots _ùl)6. Plaintiffs have not Proven that lots 2 and~not be . ì used for residential purposes due to lack of ability for on-site FINDIN~S-AÑD CONCLUSIONS --4 Mark Huth Attorney at Law P.O. Box 303 Port Townsend, WA 98368 Telephone: (360) 379-0543 Facsimile: (360) 379-5167 - ~ ( " 1 sewage treatment. The testimony regarding the lack of septic avail- 2 ability for lots 2. and 3 was inconclusive. Thé- Court cannot find 3 that there is no method of sewage disposal that could be utilized to 4 5 6 7 8 9 10 11 lots. develop appropriate use of plaintiffs' Testimony revealed that technology for septic treatment has improved allowing placement of on-site systems on a number of lots which previously would have been unbuildable. Adjacent lots have been permitted for on-site sewage treatment systems. kLot 4 has an existing residence served by Lots 5 and 6 are owned by the Graces. an on-site system. The Graces applied for and received building permits for each lot from 12 the County Building Department in 1992. The Graces applied for and 13 received sewage disposal permits for each lot from the County Health 14 Department in 1992. The Graces have poured footings for a home on 15 16 17 18 19 20 21 22 23 24 25 26 27 28 each lot and have renewed their building permits and septic permits such that they will be able to build in the foreseeable future. Mr. Breitweg testified that he built his residence on one lot and re- tained a second lot in order to be able to expand his existing sep- tic system if necessary. In 1990, Mr. Vines retained an engineer to determine the feasibility of septic disposal for a ten unit motel on £-¡.~.3 lot 1~ The report indicates that the lot will support a septic sys- tem of adequate capacity for that propose~~~nifi-.~ cantly greater use than a single-family residence ~Lots 2 and 3 could be combined into one residential lot in order to minimize sep- tic:' cfsts. 7. Plaintiffs have failed to prove that their lots have value FINDINGS AND CONCLUSIONS --5 Mark Huth Attomey at Law P.O. Box 303 Port Townsend, WA 98368 Telephone: (360) 379-0543 Facsimile: (360) 379-5]67 - 8 ( ~ 1 only if utilized for commercial purposes. Mr. Sepler and Mr. Amer- 2 son, plaintiffs' real estate expert, did not provìde sufficient evi- 3 dence regarding the lack of economic viability or marketability of 4 5 6 7 8 any lot at issue. Mr. Vines did not provide any testimony on the dollar impact of the Protective Covenants to lots 2 and 3. There is no testimony regarding alternative use such as multi-family, duplex or any other uses. There is insufficient evidence to show that the 9 10 11 12 lots could not be sold forkresidential use. Lot 4 immediately adja- cent to lots 2 and 3 is already occupied by a residence. Lots 5 and 6 were purchased and have been permitted for residential purposes. Lot 1 is a corner lot and is triangular in shape. 8. Lot 1 13 abuts on Oak Bay Road to the northeast, Kivley Drive to the west and 14 Lylus Lane to the southwest. Oak Bay Road is a two-lane state high- 15 way. The conditions of plat approval prohibit access from the lots 16 17 18 19 20 21 of Melwood Terrace onto Oak Bay Road. Kivley Drive and Lylus Lane form a loop within the subdivision. Access to Lot 1 could be by way of Kivley Drive. That portion of Kivley Drive that abuts lot 1 is not bordered by fIT ~ ~~~~ abut Lylus Lane. If lots 2 and 3 were commercially developed, ac- 22 cess could be by way of Lylus Lane. Commercial access via Lylus 23 24 25 26 27 28 Lane would affect the residents of Melwood Terrace to a signifi- cantly greater extent than commercial access to lot 1 alone via Kiv- ley Drive. " 9. . , Plaintiffs did not prove that commercial development in the area has significantly changed the neighborhood. There is no com- FINDINGS AND CONCLUSIONS --6 Mark.Huth' Attorney at Law P.O. Box 303 Port Townsend, WA 98368 Telephone: (360) 379-0543 Facsimile: (360) 379-5167 - e ( " 1 mercial development or any development other than residential within 2 Melwood Terrace. The area adjacent to the s~bdivision on the north 3 and east has developed since 1979 but not since 1985. The area to 4 the south and west of the subdivision remains undeveloped. The area 5 6 7 8 9 10 11 12 13 across Oak Bay Road to the northeast from lots 1, 2, and 3 had de- veloped into a commercial area by 1985. A multi-family apartment house is now existent and has been since 1985 on the east side of Oak Bay Road across from M~lwood Terrace. 10. Relief from the Protective Covenants for lots 2 and 3 would allow commercial development on lots directly bordering lot 4 on which a residence presently exists. The remaining residential lots would also be negatively impacted by increased vehicular traffic 14 into the subdivision, increased visits by non-residents into the. 15 16 17 18 19 20 subdivision, and by -buildings significantly larger than the existing housing if commercial development was permitted on lots 2 and/or 3. 11. Plaintiffs' alleged violations of Covenant No.1. These alleged violations were either minor in nature or not proven by sub- stantial evidence. An RV is parked on one lot. Plaintiffs argue 21 that this is a violation of No.1, but do not so prove. Plaintiffs 22 allege that the presence of a carport and a wood stor~ge is a viola- 23 tion of Covenant No. 1 but do not so prove. Plaintiffs have failed 24 to show that the minor violations, if any, are evidence of a change 25 within the subdivision to a commercial use or evidence of abandon- 26 ment ,of- the Covenants. 27 Plaintiffs allege that two automobiles or vehicles have been abandoned on one of the lots. These vehicles be- 28 FINDINGS AND CONCLUSIONS --7 Mark Huth Attorney at Law P.O. Box 303 Port TO'MlSend, WA 98368 Telephone: (360) 379-0543 Facsinùle: (360) 379-5167 - ft ( ~ 1 long to a neighbor's son. There is no evidence that they are being 2 commercially stored. There is no evidence that the residential na- 3 ture of the subdivision has changed or that the relevant Covenant 4 has been abandoned. ~. \#; §!".I,J -:t1r L W Plaintiffs have not proven that there is a change of condi- that would render the perpetuation of the restrictions of no substantial benefit to the dominant estate and defeat the object and purpose of the restrictions. 9 The Plaintiffs have failed to prove that lots 1, 2, and 3 are unbuildable, unusable, and have no value. 10 11 Plaintiffs have failed to prove that the increase in commercial de- 12 velopment and traffic along Oak Bay Road renders Plaintiff's lots inappropriate for residential use. Based on the foregoing, the Court enters the following: CONCLUSIONS OF LAW 17 18 19 20 court has jurisdiction over the parties and the sub- ject matter. 2. Protecti ve Covenant No. 1 applicable to Melwood Terrace 21 subdivision remains in effect and enforceable as per the terms 22 therein. The Covenant has not been abandoned. Neighborhood condi- 23 24 tions such as traffic flow, commercial ~evel~p~e~t^ and zoning desig- .. f1AJ). t(fi>L-~ p~ ~ jì\.L ~ nation~have not changed sufficiently to render the Covenant unen- 25 forceable. Ti.L~ ethg""" Cº.,.'".,.cRaJ....:.-~ QJ.J.J \I~ulo.LluJ.J.o..J ~11~~çu¡, ~[ a.....ll 51·-- 27 26 rro t; r fIg, p,-¡ 1"1 t ; T'1 t h ~ m~ L L '-.L . 3. Plaintiffs have failed to prove that they are unable to use 28 - Mark Hutb Attorney at Law P.O. Box 303 Port Townsend, WA 98368 Telephone: (360) 379-Û543 Facsimile: (360) 379-5167 FINDINGS AND CONCLUSIONS --8 ( e ( " 1 their land in any way due to Covenant No. 1 and therefore there is 2 no prohibition against public policy by limit;ng the free use of the 3 land by plaintiffs 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 . The relative hardships to plaintiffs and defendants arising from Covenant No. 1 do not favor allowing plaintiffs to put their land to commercial use contrary to that Covenant. 5. Plaintiffs' suit should be dismissed with prejudice this ~ day .of ~ ' 1997. DATED cf~~ JUDGE Karen B. Conoley Presented by: Mark~~s1~ Attorney for Defendants Breitweg, Clarke, Day, Grace, MCMorrow, Porsch, Rutter, and Wynn Copy Received; Approved as to Form; Notice of Presentation Waived: Œíl~ íJ)~lfÐv 0¡JA#I{/r~' Plaintiffs FINDINGS AND CONCLUSIONS --9 Mark Huth Attorney at Law P.O. Box 303 Port Townsend, WA 98368 Telephone: (360) 379-0543 Facsinùle: (360) 379-5167 - 1 2 3 4 5 6 BEFORE THE JEFFERSON COUNTY BOARD OF HEALTH 7 In re the matter of: NO. SEP98-0007 DECLARATION OF DAVID JENSEN, P.E. 8 RAYMOND and LIANN VINES, 9 10 11 I, David Jensen, P.E., say: 12 1. I have personal knowledge of the facts and circumstances contained in this declaration. I 13 am competent to testify to the matters asserted herein. 14 2. I have been retained by Raymond and Liann Vines, appellants in the captioned matter, to 15 present testimony in support of their appeal to the Jefferson County Board of Health. 16 3. My resume which lists my relevant work experience, education, certifications, 17 professional affiliations, awards, and other infonnation has been previously provided and admitted as an 18 exhibit in this proceeding. 19 4. Bt;;~aul:ltJ ul a prior conflict, I am unavailable to attend ccmp~:~:'::: 0fthe scheduled 20 hearing to be held on February 17,2000. I did attend and was present at the commencement of the 21 hearing on January 20,2000. At the request of the appellants, I have prepared a letter. This letter is a 22 summary of the testimony to be presented on behalf of Mr. and Mrs. Vines to the Jefferson County 23 Boæ;d ~f Health in lieu of my personal appearance. I thank the Board members for their consideration 24 in this regard. 25 DECLARATION OF DAVID JENSEN, P.E.-l Williams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600 1061436.1 1 5. Attached to this declaration and by reference made a part hereof is a true and accurate 2 copy of my letter to the Vines which represents my testimony before this Board. 3 Signed at Seattle, Washington, this ""(+1, day of February, 2000. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 p( "A ~.- dJ Ql1JLd}~ r. to , David Jensen, ~. l~ 20 21 22 23 24 25 DECLARATION OF DAVID JENSEN, P.E. - 2 Williams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600 1061436.1 ~8œ ?~-C\NNlE' 5 PLACE PHONE NO. 360 437 2849 Feb. 03 20ØØ 11:59AM P2 /,,~r:J D.R. STRONG Consulting Engineers Inc;. 'UJ ~J 10604 H.E. 38TH PLACE, SUITE ,01 . KIRKLAND, WA 98033-7903 (425) 827-3063 . TOLL FREE (Washington State) ·'-800-962-1402 _ FAX NUMBER (425) 827-2423 February, 01,2000 90373.2 Ray Vj)\CS 331 Bayshore Drive Port Ludlow, W A 98365 Dcar Mr. Vines: This letter is in regard to MclwQod Terrace Lots 1 and 2 in the Port Ludlow area oC Jefferson County, Washington and the on-site sewage disposal system that is proposed fot the commercial facility planned for this site. This letter wilt answer some questions that you would like addressed after the recent Jefferson County Health Department variance bcaring. Does the oIl-site sewage dispo.~al system desig"ed mfi!e.t Jefferson County Health Department Regulations? The design as submitted by D.:R. STRONG Consulting Engineers Inc. (DRS) meets all health regulations to our knowledge. The soils on site are appropriate for an onwsitc sewage disposal system. The type of system and siu of system a1'C appropriate for the pruposed u£age and site characteristics. A sintilar system (slightly smal1er) was approved adjacent to this system, tha.t was proposed in the same types and depths of soils and loading characteristics- The only objection that has been raised to this point is the fact that the drainfield is located on a rcsidentiallot. What is the effect of having the residential lot u.tilized as a dra¡"jìeld site for the commercial .rtruèture? There is no adverse impact that J am aware: óf in the use of the l'csidentia1lot for the commercial facility drainfield. The dfainfic1d is subsurface so nothing will be visiblc in this area. The draintield will mw it so that a residence will not be able to be built on Lot 2 which will both reduce the building density for the plat and provide a butTer between the commcrcial building and potential residential buildings. The sóils type and depth are appropriate for an on-site sewage disposal system and if installed and :maintained properly, the system should provide years of useful service to the commercial facility. Does the Jeffer30n COlmly Health Department RegulaliolfS prohibit commercial .rites having their drainfields on residential $ites? There is nothing that I am aware of in the health department regulations that prohibits commercial drainfields Qn reside:ntiallots. This WilS conClr:med in the variancè hearing where it was stated that this was a 2.oning issue that is controling the health department response. Do other counties !lave a regulation prohibiting commercial sltfß,/rom having their drainflelds on residential sites? There is nothing that T am aware of in the health department regulatioD$ for King, Snobomish, Pierce, or Skagit, Whatcom or other counties tbat I have worked on this s~ issue prolu"bit commercial drainficlds in residential lots. I hope that this ar.ISwers all of YoW' questions. If you need morc information or have: further questions please contact our offices. Sincerely youts, P.R. STRONG Consut1ing Engineers Inc. JJ~~PE David J enscn P ..E. Principal I DIU/adb: r..v9QI90373ILOOOJ 16 02/03/00 THU 10:39 [TX/RX NO 8486] 1 2 3 4 5 BEFORE THE JEFFERSON COUNTY BOARD OF HEALTH 6 7 In re the matter of: RA YMOND and LIANN VINES, NO. SEP98-0007 DECLARATION OF SERVICE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The undersigned hereby declares under penalty of perjury under the laws of the State of Washington that the following is a true and correct statement: The undersigned declares that he is over the age of eighteen years and competent to make this Declaration. On the 8th day of February, 2000, the undersigned did cause to be transmitted via facsimile and did arrange for next-day delivery with Federal Express, copies of this Declaration; letter dated February 8, 2000 to Larry Fay, Jr. at Jefferson County Health and Human Services; Appellants' Supplemental Brief; Declaration of David Jensen, directed as follows: Larry D. Fay, Jr. Environmental Health Director Jefferson County Health and Human Services Castle Hill Center 615 Sheridan Port Townsend, W A 98368 FaX: (360) 385-9401 Federal Express: Original plus seven copies DECLARATION OF SERVICE - 1 Williams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600 1062424.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 David Alvarez Jefferson County Courthouse 1820 Jefferson Street Port Townsend, W A 98368 Fax: (360) 385-9186 Federal Express: One Copy Rick Sepler Madrona Planning Development Services 1256 Lawrence Street Port Townsend, W A 98368 Fax: (360) 379-0131 Mailed: Oile Copy SIGNED at Seattle, Washington, this 8th day of February, 2000. DECLARATION OF SERVICE - 2 1062424.1 MÆOC ~ Matt Moreno Williams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600 Jefferson County Health and Human Services JANUARY ~ FEBRUARY 2000 NEWS These issues and more are brought to you every month as a collection of news stories regarding Jefferson County Health and Human Services and its program for the public: 1. "Health department inspects food establishments" - P.T. LEADER, 1-12-00 2. 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"New researc1i~e:fu:í1tivèly tells us that the quality of care a'èbi1d ~ives during these formative years will play a:.h~e· part in determining that child's potential," ].>",1: '. , , "The forum has been created to begin å éom- munity dialogue on whåt we can do'to'eµ.sùre that all of our children have a strong'~d,heàl1hy start in life," wrote organizers., '.:',::,', ....:! ' All citizens, provider and agency pèrsonnel in the county who are concerned tibóût child development and youth violence issùe's:'~e èn- couraged to attend. The registration fe,e' cif tI5 includes lunch and snacks. Scholar~hips ~re available. .:.: , : For registration forms and more:mrorm~ti4n, call Jude McClure at Community NétWórk; 31.9- 4495, or Julia Danskin at the heá1~ dep8#- ment, 385-9420. . ,.... . ,: ' ~ ... "0 -.. Jefferson and Clallam counties host an all- day prevention forum on the importance of qual- ity care for children from before birth to age 3. Staged from 9 a.m. to 4:30 p.m. Saturday, Feb. 12 at the Port Angeles High School campus, the forum features Robin Karr-Morse; author of Ghosts from the Nursery: Tracing the Roots of Violence, and Dennis Maloney, a juvenile ser- vices administrator from Oregon. Karr-Morse's book describes the relationship of early brain development deficits to later harmful behaviors. Maloney's translation of Karr-Morse's information into action has re- sulted in stunning decreases in violent youth behavior in his community. "When a child's eady needs for nurturing are not met, the result can be a host of disturbing be- haviors in childhood and beyond, including vio- lence," report forum organizers from Jefferson P-T- lEÆDEfC 1-/9-o-ò ?r: LEA-Dt:;y¿ A 4 · Wednesday, Jan. 19, 2000 Network forms new coalitions Jefferson County Commu- nity Network seeks citizen and agency participation on two new coalitions to address the needs of children and youths in the community. One of the groups, the Birth- to-Three Coalition, will look specifically at our youngest population to determine the range of existing resources, identify needed programs or services, and launch pilot projects. The second group, the Pre- vention Council, will engage in a similar process but for a dif- ferent population: school-age children and youths. Both groups bring together the service providers and pub- lic to exchange information, review local research and de- velop strategies to enhance ser- vices. Strategies might include launching new projects, en- hancing coordination of exist- ing services, expanding exist- ing services to areas in need or sponsoring one-time projects such as community educational forums. The network has the capacity to fund small projects and to seek funding from gov- ernment and private resources, and will do so based upon the recommendations ofthe groups. Community networks have been funded by the state Leg- islature since the mid-1990s to give communities more ofa voice in identifying and re- solving local social problems. There are 53 networks throughout the state, in all counties and tribes. Jefferson County Commu- nity Network has focused its strategies on preventing and reducing teen substance abuse, domestic violence and child abuse. To this end, ithas funded close to 50 projects over the past five years, disbursing $95,000 to schools, agencies and nonprofit organizations. Net- work funds have supported parenting programs, job skills training, youth challenge ac- tivities and enhanced therapeu- tic and shelter services. The network provides operating funds to the Boiler Room in Port Townsend and the Tri· Area Teen Center in Port Had- lock. It recently helped the county secure a $40,000 state grant to develop after-school· programs in Quilcene. Cur- rently, the network is a cospon- sor, along with the county com- missioners and the health de- partment, of a birth-to-3 pre- vention forum to take place in Port Angeles in February. The network is developing . the new groups to strengthen its role as an agent of human services improvement. The net- work wants to increase the con- tact, communication and, mostly, collaboration between consumers of services and rep- resentatives of the service de- livery system. The meetings will give consumers opportuni- ties to share perceptions, expe- riences and recommendations. Increased contact between ser- vice providers and consumers will enhance resource sharing and identification of needs from the provider perspective. The group as a whole will help the network make decisions about where it can best put its re- sources to strengthen the de- livery of services to infants, children and youths in Jeffer- son County. The initial meeting of both groups will take place in early February at WSU Cooperative Extension. If interested, con- tact Jude McClure, Community Network coordinator, 379-4495, to obtain specific information about meeting times. .... ·County's HIV testing rules change Free HIV testing and counsel- needles with a person at high ing to Baldwin, the in-home test ing offered by Jefferson County risk; individuals recently diag- kits available are anonymous and Health and Human Services will nosed with a sexually transmit- as accurate as the test given at now be limited to those individu- ted disease; sex industry work- the health department or doctor's als at high risk ofHIV infection. ers; persons with hemophilia. office. "The health department re- Trained public health nurses The department "would like to ceives federal funds to test will screen questions about test- be able to test anyone who comes people who are most at risk of ing and appointments. Forthose in, but staff time is limited and contracting the disease," said individuals who screen at high must be directed at those indi- Jean Baldwin, director of com- risk, a testing and counseling viduals who would benefit the munity and family health. I:ó.di- appointment at the health de- most," said Baldwin. viduals identified at high risk partment can then be made. The HIV Testing and Counsel- for HIV infection include: men For those individuals who do ing Walk-In Clinic at the health who have sex with men; injec- not screen as high risk but want department is available through tion drug users or those with a to be tested, there are a number Jan. 21, in order to make this history of injection drug use; of options available. Among these transition easier for clients. sexual partners of an HIV-posi- options are checking with private For more information about tive person or anyone who has health care providers or obtain- HIV testing options, call the unprotected sex or shares ing an in-home test kit. Accord- health department at 385-9400. . 'PI' le:A;Ð6R- 1- (1- cro · _ Jannmy 26, 2000 Needle exchange plans form ] efferson funding considered BY PAUL Go1TLŒB PENINSULA DAILY NEWS Peninsula health officials are laying the groundwork for estab- lishing needle-exchange programs for drug addicts. Unaware of the local pro- grams, Clallam and Jefferson county law enforcement supervi. sors Tuesday struggled with the concept but said it sounds like a good idea for reducing HIY, hepatitis and other communica- ble diseases. Authorized under the 1998 Omnibus AIDS Act, the" state- funded programs have béen- approved in Clallam Collnty and ·~"beîng.planned in Jefferson' County. , , .. ClaJlam program closer - Dr. Tom Locke, health officer for both jurisdictions, will set up a meeting in the next two weeks with the Clallam Sheriff's Depart- ment to discuss the effort, he said Tuesday. Locke also will discuss the nee- dle-exchange program with city police officials on the Peninsula, he said. Those sessions will be followed by public meetings. Locke said he expects that by July, a program will be set up in Clallam 'County that makes needles available to drug users of any age. Jefferson officials have approved moving forward with the program but are operating on a slower schedule, Locke said. "We don't have as much money identified for Jefferson as for Clallam County," he said, adding that the success of the programs is widely accepted. "We're wrestling with how to do it in both counties on a very limited budget." In Clallam, the health board made up of county commissioners Mike Doherty, Steve Tharinger and Carole Boardman decided last week to proceed with develop- ing the program. Clallam can expect annual funding of about $25,000 to implement the effort, Locke said. Public meetings planned The next step is meeting with law enforcement officials and then setting up public meetings, Locke said. It will be established "as long as we do not encounter obstacles " to it;".Locke said. That could include being unable to find a place to site a needle-exchange facility or lack of support from law enforcement agencies. "The whole idea of a needle- exchange program is to do some- thing that is accepted and sup- ported by law enforcement," Locke said. "The goal is not to do it in an antagonistic way, but in a way that promotes public health. If all goes according to schedule, we could have something started up by July of this year. " . 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The case is under investiga- tion. Quantity and concentration of various chemical substances nave not been determined. "The Washington State Patrol is still processing the contents," Sgt. Conner Daly said. "The items are believed to be consistent with Items used for the manufacturing of methamphetamine." That typically includes assorted glassware, chemicals, plastic tubing, coffee filters, lithium batteries, matches, cook- mg devices and pots and pans. Arrested were a 15-year-old girl, a woman, 39, and two men, ages 41 and 21. Three of the indi- Tuesday. vi duals are believed to live in the Police and Fire Department apartment. members assisted with the opera- Police officials called in the si,x- vt tion. I>Rliçec evacuated occupants member Statewide Incident' of the i1èighPo.ring apartment Response Team (SIRT) after prior to the seizure. receiving information about the Police received information site during an arrest last week- regarding the possible meth lab end. during a traffic stop which led to SIRT members worked at the an arrest Saturday night. scene from 9 a.m. to 2:30 p.m. A Port Townsend officer State agents, local police raid apartment BY ADRIANA JANOVICH PE:->¡:->SU.A DAILY NEWS PD¡J ADRIANA JANOVlCIiPE:-;::-;Sl:L, D.\.I:' Port Townsend police officers assist a Washington State Patrol team in seizing a suspected methamphetamine lab In an apartment Tuesday morning. . stopped a vehicle at 9th Avenue and Hancock Street for an alleged . traffic violation,' and arrested the driver on two outstanding war- rants. for driving with a sus- pended license. . The officer found a "small amount" of methamphetamine on the man, which was connected to the Sherman Street apartment, Daly said. Sunday night, of: searched a wooded area nea apartment where they í chemicals and drug paraphel in a cardboard box and c, duffel bag hidden in the bru Thev called the SIRT teal obtained a search warrant day. ;)-7---00 , , Peak flu season.~;over now' The wave of flu infections in Jefferson County peaked in the last week of December and the first week in January, so it's unlikely many more people will fall victim to the infection this year. And despite people's percep- tions, the severity of this year's flu didn't appear to be worse than in past years, said Jane Kurata, a pub- lic health nurse at the Jefferson County Health Department Dodging the flu bullet in large part were schoolchildren, Kurata said, because the peak of the flu outbreak came when children weren't in school. As a result,ab- senteeism at schools statewide was not above normal. "There's. still flu out there," Kurata said, but the infection is on the wane. Flu shots normally become available each year in October and November, Kurata said, and it's a 71-. Lf"AD£rc 2-'2-00 "Not eVeryone who gets aflu shot is gòing to avoid the flu.." Jane Kuraba" public health nurse good idea to get a shot as early as possible. "It takes a couple of weeks for the flu shot to take effect," ,Kurata said. "It's not going to protect you right away." Although some people be- lieve flu shots didn't adequately protect people from this year's strain, Kurata said tests showed that. thè flu vaccine was right on target for the kind of flu most people contracted tþis year. , "Not everyone who ge\S \\ fI\l shot i~ goingtò avoid the ,flu;" Kurata said. Bqt inoculated ~ple 11Ì9st likèly will get a muchUghter case of the ,flu than would be'ti1e case without the shot. 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[j S -; .... i5 bI)~ .' I ~ Eo< 11 ~].s¡ ¡:; c:. "'CI ~ ¡ß .a ò .1::; ~: ....gj»o.....o=::Ic )....CJ :So i:J ~ gj'~,.Q ã ~ ~ ~ 1J -g,.Q 01 'Ë,~ 8 ~ ~ ~ ~ ~.~ å''i 00 c3'; ';;..8 ~ æ æ 16 - ~. ~~-;;;~8§þ~1ä-â~-¡8... _~11)' CI) §':3 ~ ~ z § .~~ "0 ~ ~ 3 Po g -¥3 ¡:: t: o CJ .,;. 8 ... ... '~;a c ) _8 J i . CJ 01 0 0 .£ ~ .S __ CI) r.::. :e . Officers uncover three l'I1eth labª_. BY PmLJ.p L. WATNESS PENINSULA DAILY NEWS PORT TOWNSEND - From the farthest point south in Jeffer- son County to near its northern tip, law enforcement officers have uncovered evidence of three methamphetamine labs. . Port Townsend police discov- ered trash Saturday behind a house in the 2100 block of CheITy Street that indicated a meth lab may have been set up in the house. They also called', in the Wash- ington State Patrol's Statewide Incident Response Team (SIRT) to analyze and collect evidence from '~a stolen 1986 Chevrolet Blazer found abandoned Friday in Port Hadlock. Jefferson County sheriffs Detective David Miller also called upon the state team to investigate a suspected meth lab in Brinnbn. The discoveries come less than ¡{'~eeît after ?ort. TOWllseqd Pblice bûste&'.fòur, .Jò¢a!'rèàìdent8 after f'mding ~,sus~ math lab operating 'out of the Sherman Street Apartments. . The equipment and chemicals the teamJound in the Blazer indi- cate it had been used, àB a 'math ,lab òr to traÌl8port a'lab; :accoro- ing to Port Townsend police Sgt. Conner Daily. The Blazer, stQlen Jan. 25 from the :Port Townsend Publishing' Co., publishers of The Leader, had been repainted gray and had phony license plates when it was discovered around 12:30 a.m Fri- day by Deputy Andrew Pern- steiner. The car was turned over to the Port TowIÎsend Police Depart- ment ·for further investigation because the car 'was stolen from its jUrisdiction: TURN TO MEm/A2 " Meth: Sifting for suspects CONTINUED FROM A1 Pernsteiner arrested Leonard Andrew Barnhouse for possession of methamphetamine at the same time he found the Blazer early Friday morning. Barnhouse, 39, of Friday Harbor was seen near the vehicle in the QFC parking lot where it was abandoned. He allegedly had three syringes and a damp piece of cot- ton which tested positive for methamphetamine. Sheriff's Sgt. Bob Haynes said Barnhouse is a suspect in the vehicle theft. Pernsteiner and 'Port Townsend Police Officer Eric Frantz detected an odd odor ema- nating from the Blazer as they discussed its disposition FridliY morning. "It didn't really burn - it just turned my stomach," Frantz said Monday. Daily said response team mem- bers found a pressure cooker, tubes, a recipe and chemicals in arrested late Friday night for pos- session of 'controlled substances by Sheriff's Deputy Hyram God- sey. · The deputy pulled over a 1979 Toyota Celica for a burned-out headlight and discovered' two pipes, some methamphetamine powde!, and marijuana. Darwin J. Lovett, 21, of Chimacum and Vic- tor A. Archibald, 20, of Port Townsend were booked into the county Jail on drug possession charges. the vehicle. He ,said Port Townsend detectives were sifting through material found in the Blazer in their search for sus- pects. Police officers also found evi- dence of a former meth lab at a Cherry Street house after talking with the landlord Saturday.' The equipment was found behind the house. Daily said the police department hasn't linked the material with the former tenants at this time. Sheriff's Deputy Brian Graves arrested Bruce E. Bratton, 49, of Cirque Street in Brinnon Friday for methamphetamine posses- sion. Graves discovered ~ outbuild- . ing on the property which appeared to have been used to manufacture methamphetamine, prompting a call to the response . team,' which sorted through the site late Monday. . . In an unrelated matter,. two Jefferson County men were '1=>DrJ :;¿ - g - 0 Ò J ¡ r f :') i t , D , :I. 2 2: if ;:r þ ., ..~ o .~ ~ ~ C/.) Iffi·· lf8fi ! ~ t: I jJ:I:::¡ ; ~I I ~ j3 ¡, ~ J[ . .. 9-1 r I ãï .. - . t 8~ :I. I ~;::¡: a ! g,.Q : f g~ .. t ~.... D J:.""¡ t ....~ f i" ~. ;Jøø¡ [~ 5-00 5'....:~è: 1)5' ~ ~ c:;:, 16-' z~ tt> fZ. z~ c:: õ li~~ i~-.~'g z à g: ICD . ñ' :o[ñt'ø¡ o 11I- s< go _ '~5'~ S' ~i~~ I w!IJ.......'O õ8:::~ . s.....¡'" ~Qffi~ >~~3' ~ c:" :Ii: i Çn~ ª $ æ5 ?6 Z S ~ I 8 Ó g. ~~ g" ~ s ='. 8 '¡::. ~ g:. Õ' ~ ~ ::IH~ø¡~ ~~~H~m~~ø¡om~~~~<~~~~Q. :¡)~ ~ ::I ~ £" ¡n g; (Jq gJ. ~ ::I Q. gJ. 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