Loading...
HomeMy WebLinkAboutMLA19-00085 Hearing Examiner Decision - Code Interp. AppealNOTICE OF JEFFERSON COUNTY HEARINGS EXAMINER DECISION APPEAL OF A TYPE II DECISION Date: March 24, 2020 The Jefferson County Hearing Examiner has submitted his written Findings, Conclusions, and DECISION regarding the following application: MI -Al 9-00085 (ZON 19-00041). Applicant: RICHARD BLEEK P.O. BOX 65308 PORT LUDLOW WA 98365 Project Description: Appeal of Code Interpretation regarding if transient rental of a townhome (30 days or less) is allowed within the Port Ludlow MPR-RC/CF (resort complex/community facilities zone) zoning classification. Parcel Identification Number: 968 600 028 Project Location: Parcel No. 968 600 028; Ludlow Bay Village Lot TH-15 within Section 16, Township 28 North, Range 1 East, WM; located at 30 Heron Road, Port Ludlow 98365 For the above project, the Hearing Examiner has: Granted the Appeal finding that Chapter 17.05 of the Jefferson County Code that covers the Port Ludlow Master Planned Resort does not allow short term rentals within the MPR-RC/CF zone classification. A copy of the Examiner's report and decision is attached. A motion for reconsideration, clarification, and instruction on appeals of this decision must be made in writing as outlined in the attached instruction sheet. INSTRUCTIONS FOR FILING A MOTION FOR RECONSIDERATION, CLARIFICATION, OR APPEALING THE HEARING EXAMINER'S DECISION: REFERENCE FILE NO. MLA19-00085 (ZON19-00041) Motion for Reconsideration: An aggrieved party may file a written request for reconsideration with the Examiner's Office within 10 days of the Examiner's Decision. Motions for reconsideration ask the Examiner to reconsider part or all of the Decision. Reconsideration is limited to certain grounds. Please see Hearing Examiner Rule 6.5 for further details on filing a motion for reconsideration. Motion for Clarification: Any principal party may file a written request for clarification with the Examiner's Office within 10 days of the Examiner's Decision. Motions for clarification are limited to correcting obvious errors or seeking clarification of specific issues. Please see Hearing Examiner Rule 6.6 for further details on filing a motion for clarification. Final Decisions of the Hearing Examiner: The Examiner's Decision becomes a final decision once the period for reconsideration or clarification has run. This is usually 10 days, unless a motion for clarification or reconsideration is filed. If a motion for reconsideration or clarification is filed, the Examiner's decision becomes final upon ruling on the motion for reconsideration or clarification. Appeal to Superior Court under a Land Use Petition Act: Pursuant to RCW 36.70C, the applicant or any aggrieved party may appeal the Examiner's Decision once it is a final decision to the Superior Court within twenty-one (21) calendar days of the final decision. For more information related to judicial appeals see JCC 18.40.340. Location of Hearing Examiner Rules of Procedure and County Code: A copy of the Hearing Examiner Rules of Procedure is available at ht# s:llwww.co.mefferson.wa.us/789/Office-of-the-Hearin -Examiner. A copy of the County Code is available at https://www.co.jefferson.wa.us/789/Office-of-the-Hearing-Examiner. Both are available at the Jefferson County Department of Community Development, 621 Sheridan Street, Port Townsend, WA, 98368. (360) 379-4450. Project Planner: Michelle Farfan SON t. Z' �s'�1T3O�0 JEFFERSON COUNTY 62:1 Sheridan Street Port Townsend, WA 98368 OFFICE OF THE HEARING EXAMINER FILE NO.: APPELLANT: REPRESENTATIVE DCD STAFF: SUMMARY OF REQUEST: JEFFERSON COUNTY REPORT AND DECISION MLA-19-00085 (ZON19-00041) APPEAL OF AN ADMINISTRATIVE CODE INTERPRETATION Townhomes at Ludlow Bay Association P.O. Box 65441 Port Ludlow, WA 98365 Richard Bleek 22 Heron Road Port Ludlow, WA 98365 Michelle Farfan, Associate Planner Lead Appeal of an Administrative Code Interpretation issued pursuant to Jefferson County Code Section 18.40.370 that clarified transient rentals are a permitted use within the Port Ludlow Master Plan Resort, Resort Complex/Community Facilities (MPR-RC/CF) zone classification. Transient rental is defined as a short-term (less than 30 days) rental of a dwelling unit. On October 28, 2019, the Townhomes at Ludlow Bay Association appealed the Code Interpretation. SUMMARY OF DECISION: Appeal granted. 1X PUBLIC HEARING: After reviewing the Jefferson County Department of Community Development Staff Report and examining available information on file with the application, the Examiner conducted a public hearing on the request as follows: The hearing was opened on February 25, 2020, at 2:30 p.m. Parties wishing to testify were sworn in by the Examiner. The following exhibits were submitted and made a part of the record as follows: SEE ATTACHED INDEX LIST The Minutes of the Public Hearing set forth below are not the official record and are provided for the convenience of the parties. The official record is the recording of the hearing that can be transcribed for purposes of appeal. AUSTIN WATKINS, Deputy Prosecuting Attorney, appeared and presented a power point presentation. The applicable zone classification allows a variety of uses as set forth on page 8 of the Staff Report. Chapter 18.20.210 of the Jefferson County Code does not apply to the Port Ludlow Master Planned Resort. The resort is covered by a Development Agreement and is governed by its own zoning code and the RCW. However, the resort is covered by selective chapters of Title 18. The County created a unique zoning code for the MPR, and selective zoning chapters are from 1999 and before. The code allows this interpretation pursuant in JCC 18.40.350. We have a precedent for this type of analysis. Title 17 procedures do not apply, but Title 18 procedures do. In making her determination the Director looked at the 1994 zoning code as Title 18 was not enacted until the 2000s. The CCRs allow this type of use and were drafted by the developer. LEWIS HALE appeared on behalf of the appellant and testified that this interpretation could apply to all zones in Port Ludlow. The older codes have been superseded. He questioned whether the proposed use is listed as a permitted use. Plus is it a layer of the Title 17 analysis? The County gets to its position by determining that the applicable code section is ambiguous. The appellant does not think the code is ambiguous. The use of short term rental is prohibited by JCC 17.05.040 as the terms "will' and "shall' are mandatory. He then referred to JCC 17.05.090, 17.25.020, and 17.50.020. Section (.020) sets forth all permitted uses and does not allow other uses than are permitted. Section 17.50.020 sets forth the Port Ludlow resort plans and further clarifies JCC 17.25020. It deletes associated uses, but lists those uses that are permitted. No uses are allowed except those listed below. The County creates the ambiguity by determining what is allowed and not allowed. Ms. Cartmel originally said that the short term rental use is not allowed, but the County changed its position later. The County now says that VBROs are allowed. The County made the decision already in JCC 17.25.020 when it listed allowed 2X uses. The County also allowed flexible uses for the hotel, but not to properties not owned by the inn. If one can rent a townhome, can one also have a campground or restaurant? The County has created more ambiguity. We do not have an ambiguity here. The code is very specific. The County refers to the legislative intent in its 2010 decision. That decision involved a single-family residential zone, but considered the same issue. That appeal dealt with a use not permitted. He referred to the Staff Report and its first page. It refers to extensive meetings with residents prior to adopting the code. The County says it does not enforce CCRs, but they are clearly doing so here. Furthermore, one can not create CCRs that violate the code. The Pleasant Harbor Resort is a new resort, not an existing one. The reality now is that we have a 38 room inn that has not expanded. The hotel restaurant was closed, nine holes of the golf course were closed, and no new amenities have been constructed, but we continue to build single-family dwellings. People are focused on living there. Pleasant Harbor is different, it is a different resort. The County says 18.20.210 does not apply because it was not included within the resort code. Thus, are VBRO rentals allowed in Port Ludlow without license, conditions, or tax? They must be because the County says the section does not apply. This is a single-family area, not an area of single- family rentals that could include wedding parties, etc. If the use is not included in the zone it is prohibited. MR. WATKINS reappeared and testified that the uses in JCC 18.43.050 were incorporated into Title 17. We can't list all uses that may occur over time. The use of a dwelling as either a rental or an owner, occupied single-family residence are the same. MR. HALE reappeared and referred to the 2010 decision. Adopting the MPR code was a multi -year task that involved the residents and the developer and not just the developer and the County. No one spoke further in this matter and the Examiner took the matter under advisement. The hearing was concluded at 3:30 p.m. NOTE: A complete record of this hearing is available in the office of Jefferson County Department of Community Development. FINDINGS. CONCLUSIONS, AND DECISION: FINDINGS: The Hearing Examiner has heard testimony, admitted documentary evidence into the record, and taken this matter under advisement. 2. State Environmental Policy Act (SEPA): This Code Interpretation is not an action pursuant to Section 197-11-704 of the Washington Administrative Code (WAC) and is therefore not subject to SEPA review. However, if it is later determined that this Code Interpretation is an action and subject to SEPA, it would be exempt pursuant 3X to WAC 197-11-800(6)(b) and WAC 197-11-800(19)(b). 3. Public Notice was published in the Port Townsend -Jefferson County Leader newspaper: • Notice of Type III Hearing: February 5, 12, & 19, 2020 Notice was posted on the property: • Notice of Type III Hearing: The applicant, the project representative, and all property owners within 300 feet were notified by mail: • Notice of Type III Hearing mailed: 4, On August 26, 2019, pursuant to Section 18.40.350, et. seq., of the Jefferson County Code (JCC), the Townhomes at Ludlow Bay Association (appellant) submitted a Request for Code Interpretation. The Townhomes are located within the Port Ludlow Master Planned Resort (MPR). Appellant requested clarification of inconsistent decisions regarding the legality of transient type rental uses permitted within the Townhomes, and a code interpretation "that short term transient rentals, other than through the inn, are not a permitted use in the MPR-(RC-CF) Zone". The MPR-RC/CF zone is limited to the resort area of the MPR and includes the Inn at Port Ludlow, marina, and the townhomes 5. On October 14, 2019, Patty Charnas, Director, Jefferson County Department of Community Development (DCD) and Unified Development Code Administrator issued a Code Interpretation as follows: The Townhomes, and other residential development within the MPR- RC/CF zone are permitted for rental of less than 30 days as "hotel and other permitted uses". The Hotel, also known as the Inn at Port Ludlow, and appropriate associated uses, is not the only listed use permitted for transient rental or accommodation within the MPR- RC/CF zone. (emphasis added) Appellant timely filed an appeal of the Code Interpretation on October 28, 2019, 6. The facts in this matter are not in dispute and require a legal interpretation of whether or not short term (VBRO) rentals are an allowed use within the MPR-RC/CF zone. Both parties agree that the Inn at Port Ludlow has rented townhomes as transient rentals in the past, and that the Townhomes' Covenants, Conditions, and Restrictions (CCRs) authorize such practice. Portions of the appeal seem to assert that transient rentals of the townhomes can occur if managed/rented by the inn, but not if rented by individual owners or VBRO type businesses. In rendering this Decision the Examiner has focused exclusively on the requirements of the zoning code and not on past practices or requirements of the CCRs. 4X CONCLUSIONS: 1. The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request. 2. The Port Ludlow MPR is subject to an MPR zoning code that the Jefferson County Board of Commissioners adopted on October 3, 1999, and is codified in JCC Sections 17.05-17.50. The Port Ludlow MPR is also subject to a Development Agreement adopted by the Board on May 8, 2000, that also incorporates the MPR zoning code. RCW 36.70B.170 addresses development agreements and provides that such agreements must set forth provisions that apply to and govern (vest) the development and use of the property. Section 17.05.050 JCC adopts various chapters and sections of the Jefferson County Unified Development Code (Title 18 JCC), but does not adopt the definitions set forth in Chapter 18.10 JCC. The Port Ludlow MPR zoning code set forth in Chapter 17.05 JCC does not include any definitions, to include definitions of hotels, inns, or transient rentals. 3. Partially because of the lack of definitions, DCD asserts that the "Hotel' use set forth in the MPR code is subject to more than one reasonable interpretation and is therefore ambiguous. Applying the rules for determining legislative intent of an ambiguous code section, DCD determined that the MPR zoning code authorizes transient rentals in the RC/CF zone. Appellant asserts that the language in JCC 17.25.020 that sets forth "permitted and conditional uses" in the RC/CF zone classification is straightforward and not ambiguous. Appellant asserts that said section clearly does not allow transient rentals in the RC/CF zone. 4. Section 17.05.090 JCC entitled "Compliance with regulations required" provides: No structure shall hereafter be erected and no existing structure shall be moved, altered, added to or enlarged, nor shall any land or structure be used, or arranged to be used for pny purpose other than that which is included among the uses listed in the following chapters as permitted in the zoning district in which the structure or land is located, nor shall any land or structure be used in any manner contrary to any other requirement specified in this division. (emphasis added) Section 17.25.020 JCC sets forth "Permitted and Conditional Uses" within the RC/CF zone as follows: The following uses are permitted within the MPR-RC/CF zone. Within the resort area, for resort facilities only, the uses set forth below are further described and limited by the Resort Plan as set forth in JCC 17.50.020. (emphasis added) 5X 5. The RC/CF use chart authorizes "Hotels (inn) and appropriate associated uses" as outright permitted. While no definition of "associated" is provided, it is reasonable to assume that the term means "accessory" uses. Thus, each parcel in the MPR RC/CF zone classification can be used for a hotel and associated/accessory uses. A hotel is the primary use of the parcel and the associated/accessory uses are just that, accessory to the hotel. The use chart does not list short term or long term rentals as an authorized primary or associated use. DCD asserts two alternative theories to support its code interpretation that short term rentals are an allowed use on all lots within the RC/CF zone: The "Hotel' use includes a townhouse; or 2. Each townhouse is an associated use of The Inn at Port Ludlow (hotel) even though located on a separate parcel. 6. Chapter 17.05 JCC has no definitions. However, JCC 17.05.040 sets forth "Rules of Interpretation" and provides in part: The following rules apply in making interpretations of the terms and conditions contained herein: (1) For the purposes of this division, all words used in the title shall use normal and customary meanings, unless specifically defined otherwise in this division.... Interpreting the "hotel" use to include a townhouse is not a normal and customary meaning of the term "hotel". Furthermore, by allowing "appropriate associated uses" of a hotel to locate on a separate parcel from the hotel, an associated/accessory use becomes the primary use of said offsite parcel. The use chart does allow uses normally associated with a hotel to locate on any lot in the RC/CF zone classification. Allowed uses include conference centers/banquet facility, restaurant/lounge/bar, resort related retail use, and recreation center/club/yacht club. However, the use chart does not authorize short term rental facilities as an allowed use. 7. Section 17.25.020 JCC sets forth a list of authorized uses permitted within the RC/CF zone classification, but does not include a list of non -permitted uses. Thus, in accordance with JCC 17.050.090, if a proposed use is not listed in the use chart, it is not an allowed use in the RC/CF zone classification. Furthermore, JCC 17.50.020, entitled "Resort Plan", sets forth the plans for future development of properties within the RC/CF zone and includes various uses from hotel guest rooms, resort retail, and lounges to various recreational facilities. However, the resort plans do not include short term rentals (other than hotel guest rooms). Section (17) mentions the existing townhomes, but does not authorize or discuss hotel or individual rental use thereof. 6X 8. In a decision determining whether or not a statute is ambiguous, our Washington Court of Appeals in State v. Rodriquez, 187 Wn. App. 922 (2015) wrote: ...Our primary duty in interpreting a statute is to discern and implement legislative intent ... If the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent... Under the "plain meaning" rule, examination of the statute in which the provision at issue is found, as well as related statutes or other provisions of the same act in which the provision is found, is appropriate as part of the determination whether a plain meaning can be ascertained... Further, a court must not add words where the legislature has chosen not to include them. A court also must construe statutes such that all of the language is given effect and no portion is rendered meaningless or superfluous...187 Wn. App. 922 @ 931, 932 In the present case JCC 17.25.020 is clear on its face and consistent with other JCC sections governing the Port Ludlow MPR. No code section authorizes short term rentals. Therefore, no statutory interpretation is necessary. Furthermore, our Court of Appeals in Hazelwood v. Bremerton Ice Arena, 137 Wn. App. 872 (2007) held: ... Legislative definitions set forth in the statute control, but absent a statutory definition, we may give a term its plain meaning by reference to a standard dictionary... However, we should not read a statute literally if unlikely, absurd, or strained consequences result...137 Wn. App. 872 @ 881,882 In the present case interpreting JCC 17.25.020 as proposed by DCD is not consistent with any definition of a hotel, nor is it consistent with locating appropriate/accessory uses offsite on another parcel. Furthermore, including a townhouse within the definition of hotel leads to an absurd or strained result. 9_ Regardless of the appellant's CCRs, the JCC makes no provision for the Inn at Port Ludlow incorporating townhomes into its short term or transient rentals. Any conflict between the JCC and CCRs is resolved in favor of the CCRs. Our Washington Supreme Court in its decision of Wilkinson v. Chiwawa Communities Association, 180 Wn. 2d 241 (2014), cited by DCD, noted: ... The lack of an express term with the inclusion of other similar terms is evidence of the drafter's intent... Extrinsic evidence is ... used to illuminate what was written, not what was intended to be written... We, however, do not consider extrinsic evidence that would vary, 7X contradict, or modify the written word or show an intention independent of the instrument. 180 Wn. 2d 241 @ 251 In the present case adding the short term VBRO rental use to the uses authorized in the RC/CF zone changes what was written in the ordinance to what DCD believes was intended to be written. 10. DCD correctly asserts that VBRO and other businesses providing short term rental of houses and condominiums has significantly grown since adoption of the Port Ludlow Development Agreement and zoning. It is also true that cities and counties are adopting rules and regulations that address short term rentals. The Jefferson County Board of Commissioners has done so as well in JCC 18.20.210(3), but has not applied said section to Port Ludlow. Such further supports a legislative intent that short term rentals are not an allowed use in Port Ludlow except on the hotel parcel. 11. The issue of whether or not a short term rental is allowed as an accessory use or an outright use in multi -family and single-family residential structures within the MPR RC/CR zone is not before the Examiner for consideration. DECISION: The appeal of Townhomes at Ludlow Bay Association is hereby granted. Chapter 17.05- 17.50 of the Jefferson County Code that covers the Port Ludlow Master Planned Resort does not allow short term rentals within the MPR-RC/CF zone classification. ORDERED this 17th day of March, 2020. S401-It4k CAUSS UJ ',-JR. Hearing Examiner 3l01 qlaOaa - a�'sti ;n,;:Jyuc�fi'0;4s 40q, 90� Is