HomeMy WebLinkAboutMLA19-00085 Port Ludlow Reconsideration:
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FILE NO.: MLA-19-00085 (ZON19-00041)
APPEAL OF AN ADMINISTRATIVE CODE INTERPRETATIOV
PPELLANT: Townhomes at Ludlow Bay Association
P.O. Box 65441
Port Ludlow, WA 98365
REPRESENTATIVE: Richard Bleek
22 Heron Road
Port Ludlow, WA 98365
DCD STAFF: Michelle Farfan, Associate Planner Lead
1 R. By Report and Decision dated March 17, 2020, the Examiner granted the appeal of
Townhomes at Ludlow Bay Association, determining that Section 17.05.020 of the
Jefferson County Code (JCC) does not allow short term rental use of twnhomes
within the Port Ludlow Master Planned Resort, Resort Complex/Communities
Facilities (MPR-RC/CF) zone classification. Pursuant to Sections 6.5 and 6.6 of the
Jefferson County Hearing Examiner Rules of Procedure, on March 24, 2020,
Suzanne Daymond timely filed a Request for Reconsideration of said Decision. On
March 27, 2020, Austin Watkins, Civil Deputy Prosecuting Attorney for Jefferson
County, submitted a Motion for Clarification and Reconsideration of said Decision.
On March 29, 2020, the Townhomes at Ludlow Bay Board of Directors (appellant)
submitted a response to both Reconsideration Requests. The Examiner considered
all of the above documents, reevaluated the exhibits, and performed additional
research.
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2R. Pursuant to Section 6.5(c) of the Hearing Examiner Rules the Examiner has
decided to reopen the hearing and issue the present Decision on Reconsideration
without an in -person or telephonic hearing and has provided notice to parties of
record pursuant to Rule 2.3. The appellant (Townhomes) has provided written
rebuttal argument. In accordance with Rule 6.1 the previously issued Report and
Decision dated March 17, 2020, is vacated and reissued as the present Decision on
Reconsideration
3R. The Zoning Code adopted for the Port Ludlow Master Planned Resort (MPR) is set
forth in Sections 17,05-17.50 JCC. Section 17.05.050 JCC adopts by reference
various sections of JCC Title 18, the Unified Development Code (UDC) that covers
the overall County except for the MPR and the Pleasant Harbor Master Planned
Resort. Section 17.05.050 JCC does not include a "definitions" section nor does it
adopt UDC definitions set forth in Section 18.10 JCC. The lack of definitions and
the structure of the use table for the MPR-RC/CF zone as set forth in JCC
17.05.020 have created ambiguities that have required the Jefferson County
Department of Community Development (DCD) to render a number of code
interpretations, especially in the area of short term rentals. Evidence in the record
shows the following:
A. Code interpretation dated December 31, 2007, by Stacy Hoskins, DCD
planning manager, determining that churches are an allowed use within the
MPR-VC (Village Commercial Center) zone subject to an administrative
conditional use permit.
B. Decision of the Examiner dated September 1, 2010, denying an appeal of a
Notice and Order of Violation issued by DCD on December 2, 2009. The
Notice and Order alleges that a property owner was operating a transient
rental business at his Port Ludlow residence in the MPR-SF (Single -Family)
zone classification. DCD determined and the Examiner agreed that:
The use of a single-family residential dwelling in the MPR-SF
zone classification for a transient or short-term rental is not
allowed.
C. Notice to Title placed on the said Port Ludlow parcel by Jefferson County for
continued violations of the Notice and Order on April 25, 2012,
D. A letter from Austin Watkins, DCD planning manager, dated October 10,
2018, denying Mark and Suzanne Daymond's application for a vacation
home/rental permit for their Port Ludlow townhome. The letter advises that
DCD does not issue such permits for properties within the MPR.
F. April 8, 2019, letter from Mr. Watkins, Civil [deputy Prosecuting Attorney,
advises Lewis Hale that DCD requires a permit for short -terra transient
rentals such as Airbnb.
F. Letter dated May 28, 2019, from Shannen Cartmel, assistant planner, to
Laurel Law Group, PLLC, and David J. Huhs responding to a potential
request for a transient rental use of a home located at 30 Herron Road, Port
Ludlow. Said letter advises that such use is prohibited in the MPR RCICF
zone classification.
G. Undated letter from Mr. Watkins to Suzanne Daymond stating. -
In my opinion, a transient rental use is likely permitted in the
MPR zoning. However, a transient rental use is not expressly
permitted in the Title 17 code. Similar uses such as inns are
expressly permitted....
H. Request For Code Interpretation submitted by Townhomes at Ludlow Bay
Association (appellant) on August 26, 2019. Townhomes requested an
interpretation as follows:
For the above reasons we are requesting a code interpretation
confirming that short term transient rentals, other than through
the inn, are not a permitted use in the MPR-(RC--CF) zone.
Patty Charnas, director, DCD, and Unified Development Code Administrator,
issued a Code Interpretation dated October 14, 2019, as follows:
The Townhomes and other residential development within the
MPR-RCICF 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-RCICF zone.
The interpretation applies to those parcels within the MPR-RCICF zone.
J. On October 28, 2019, Lewis Hale and Richard I3leek on behalf of the
Townhomes at Ludlow Bay Association timely submitted the present appeal
of the code interpretation.
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K. Further complicating the use issue are the Townhome's Covenants,
Conditions, and Restrictions (CCRs) that allow short term rentals of the
townhomes, but only through the inn at Port Ludlow. In addition, the JCC
specifically authorizes short terra rentals in the Pleasant Harbor MPR, but not
in the Port Ludlow MPR. See JCC 17.75.020(2).
4R. It is clear from the above chronology that DCID has had difficulty in determining
allowed uses in the various zone classifications of the MPR. As shown in the
present appeal, difficulties are caused by the lack of definitions in the MPR code,
the failure to include the definitions section of Title 18 JCC in Title 17, and the use
of terms such as "appropriate" and "inn" without clarification or explanation.
Difficulties have also resulted from inclusion of certain sections of Title 18 JCC into
Title 17 JCC. Finally, JCC 17.05.020 sets forth allowed uses in the MPR-RCICF
zone, but sets forth no prohibited uses. Together, the above factors reader the use
"Hotels (inn) and appropriate associated uses" ambiguous. For the reasons set
forth hereinafter DCD's Code Interpretation correctly resolves the ambiguity.
5R. As previously found, the Port Ludlow MPR is subject to a MPR zoning code that the
Jefferson County Board of Commissioners adopted on April 3, 1999, and codified in
JCC Sections 17.05-17.50. Section 17,05.050 JCC adopts various sections of the
UDC into the MPR. The MPR is also subject to a Development Agreement (DA)
adopted by the Board on May 8, 2000. The DA 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 property covered by a DA. Sections 17.05-17.50 JCC
comply with RCW 76.70B.170.
6R. 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 any 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)
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 (townhouse) in
the MPR-RCICF zone classification can be used for a hotel and inn and their
associated/accessory uses. The use chart does not list short term or long term
rentals as an authorized primary or associated use. However, hotels and inns are
specifically built to provide short term rental rooms, suites, and larger (h ome type)
accommodations.
7R. Chapter 17 JCC provides no definitions for the MF'R. 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....
At first glance, interpreting the "hotel" use to include a townhouse would not seem a
normal and customary meaning. However, courts have determined that the use of a
house for an "inn" is a "normal and customary„ use. Black's Law Dictionary sets
forth normal and customary meanings of words, and in its definition of "inn"
provides:
An inn is a house where a traveler is furnished with everything which
he has occasion for while on his way.. ,A house where all who conduct
themselves properly, and who are able and ready to pay for their
entertainment, are received, if there is accommodation for
them,... (emphasis added)
Black's defines "Hotel" as "an inn; a public house or tavern", and also provides that
no difference exists between the terms hotel, inn, and tavern. Thus, it appears that
a house or townhouse would meet the definition of "inn", and according to Black's,
would also meet the definition of "hotel" since no difference exists between the two
uses. The current version of Merriam-Webster's online dictionary confirms Black's
definition of "inn" as "an establishment for the lodging and entertaining of travelers".
8R. Section 17.25.020 JCC sets forth a list of authorized uses permitted within the
RCICF 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 RCICF Zone classification. However, as set forth
above, a townhouse used as a short term rental is not inconsistent with the
definition of "inn" and therefore may be considered as an allowed use in the RCICF
zone.
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9R. Both DCD and the appellant refer to the CCRs covering the townhomes. Finding 9
addresses the CCRs and the JCC and is partially incorrect. The JCC prevails in
conflicts with the CCRs. Therefore, the second sentence of Finding 9 is revised to
read:
Any conflict between the JCC and CCRs is resolved in favor of the
JCC.
Thus, if the CCRs allow short terra, rentals and the JCC does not, then short
term rentals are not an allowed use. CCRs cannot change a zoning code
adopted by the Jefferson County Board of Commissioners.
The Examiner simply did not catch this error in proof reading the final draft of the
original Decision.
10R. DCD correctly asserts that short term accommodations are consistent with a section
of the Growth Management Act set forth in RCVV 37.78.360, which specifically
provides for short term visitor accommodations in destination resort facilities. Such
is also consistent with the Jefferson County Comprehensive Plan that was
developed consistent with GMA. Therefore, both GMA and the Comprehensive
Plan support short term rentals as part of the "inn" use,
11 R. Paragraph 3 of the "Analysis Summary" in DCD's Code Interpretation, DCD reads:
3. The request for clarification is as to whether or not the Townhomes
within the subject zone are permitted as "transient rentals" or
"transient accommodations".
Paragraph 10 of said summary reads:
The allowance of transient rentals in the MPR-RCICF zone does not
preclude the MPRs intent, as stated in the Comp Plan, to include
residential units.
Based upon the above findings, to include the definitions of "inn", and GMA
requirements for destination resort facilities, the Examiner agrees with the
director's legal analysis.
12R. The Code Interpretation approves short term rentals within "I-f otel (inn) and
appropriate associated uses". In Paragraph 7, the director does not restrict
commercial transient rentals of townhomes to the Inn, but authorizes "short-term
transient occupancy through a commercial transaction". Again, the director correctly
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interprets the JCC, as Chapter 17.05 provides no such restriction.
1 3�4. Ms. Daymond asserts that based upon changes in "reasonable and customary
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modern business practices and the change in customer demand over the past 20
years" to include Vl3R® and Airbnb that were not in existence when the townhomes
were built, that short term rentals should be allowed. She cites as authority the
zoning code for Pleasant Harbor that specifically authorizes transient rentals as a
permitted use.
14R. DCD's Administrative Interpretation does not authorize short term rentals as a new,
modern, business practice that addresses changes in customer demand, but
properly concludes that the short term rental use is an allowed use under the
existing "Hotels (inn) and appropriate associated uses". Furthermore, even though
the Inn at Port Ludlow may have established a rental pool to manage short term
rentals of townhomes, and even though Admiralty Condominiums may have agreed
to serve as the exclusive rental agent for the townhomes, such is not allowed as a
monopoly by the JCC.
1 R. DCD correctly asserts that the Examiner in the original Decision (and again in the
present decision) did not grant deference to DCD's code interpretation because as
set forth in Finding 6 of the original Decision:
The facts in this matter are not in dispute and require a legal
interpretation of whether or not short term (VBR®) rentals are an
allowed use within the MPR-RC/CF zone....
The issues are in the nature of a legal interpretation of zoning code requirements.
Neither party challenged any evidence submitted by the other, and factual issues
were not raised. Thus, much of the original Decision consists of conclusions of law
and not factual findings. The Examiner therefore provided de novo review in both
the original Decision and the present Reconsideration Decision. Such is consistent
with Hearing Examiner Rule 5.140)(iii) that provides:
Issues of law are subject to a de novo standard of review. Issues of
fact are subject to a substantial evidence standard of review.
Rule 1.1(g) also refers to fact finding. Furthermore, in the present case courts
would not grant deference to DCD's code interpretation because the history of the
short term rental use interpretations is conflicting and has not been consistently
applied. In Stephen Sleasm,an, et, al. v. The City of Lacey_, 159 Wn. 2d 639 (2007),
our Washington Supreme Court wrote:
_However, even ;f the ordinance were ambiguous, Lacey's
interpretation would not be entitled to deference. Lacey's claimed
definition was not part of a pattern of past enforcement, but a bi-
product of current litigation. 159 Wn. 2d 639 @ 646
The same is true in the present case as DCD's code interpretation is not part of a
pattern of past interpretations, but is a product of the current appeal. Likewise, our
Supreme Court in Cowiche Canyon Conservancy, et. al. v. Bruce Bosley, et. al, 118
Wn. 2d 801 (1992), held:
If an agency is asserting that its interpretation of an ambiguous
statute is entitled to great weight it is incumbent on that agency to
show that it has adopted and applied such interpretation as a matter
of agency policy. It need not be by formal adoption equivalent to an
agency rule, but it must represent a policy decision by the person or
persons responsible, Nothing here establishes such an agency
policy, and nothing shows any uniformly applied interpretation....118
Wn. 2d 801 @ 815
Here, as in Cowiche Canyon, DCD has not adopted and applied its present
interpretation as a matter of policy, and nothing in the record shows a "uniformly
applied interpretation". Therefore, it is not appropriate for the Examiner to grant
deference to DCD's interpretation in the present case.
2R. No consideration was given in either the original Decision or in the present Decision
of previous activities authorized by the CCRs, but not by the JCC. One might argue
that Jefferson County knew or should have known of the CCRs and short term
rental uses of townhouses, but took no enforcement action and is now estopped
from enforcing its code. However, regardless of past failures of a municipality to
force its zoning ordinances, it is not estopped from enforcing its codes. Our
Washington Supreme Court in Richard F. Buechel v. The Department of Ecology,
125 Wn. 2d 196 (1994) held:
...The proper action on a land use decision cannot be foreclosed
because of a possible past error in another case involving different
property. No authority is cited for the proposition that the Board can
be estoppel from enforcing existing regulations by prior decisions not
even considered by the Board.,.[Tjhe court stated that a municipality
is not precluded from enforcing zoning regulations if its officers have
failed to properly enforce zoning regulations. That court explained
that the elements of estoppel are wanting. The governmental zoning
power may not be forfeited by the action of local officers in disregard
of the statute and the ordinance; the public has an interest in zoning
that cannot be destroyed. 125 Wn. 2d 196 @ 211
Thus, regardless of its acquiescence to contrary CCRs, neither Jefferson County
nor the public are precluded from enforcing the zoning regulations as adopted by
the Board of Commissioners.
3R. Regardless of the CCRs, the JCC does not authorize the Inn at Port Ludlowto have
a monopoly on short term rentals, clothing in the JCC prevents townhome owners
from utilizing another source to rent their units or to serve as their own property
manager.
4R. DCD's interpretation that short term accommodations are an allowed use is
consistent with GMA and its definition of a master planned resort, with the Jefferson
County Comprehensive Plan, and with the normal and customary meaning of "inn".
5R. DCD expresses concern that the original Decision prevents the DCD from
classifying uses or from interpreting ambiguous wording pursuant to authority set
forth in JCC 18.40.350 and as historically practiced. The original Decision was not
intended to restrict DCD's authority, but expressed concerns that DCD was
legislating a new, allowed use within the RC-CF zone classification. Following the
additional review of this matter, it is obvious that DCD provided a reasonable code
interpretation and did not legislate.
6R. In Conclusion 8 of the original Decision the Examiner referred to decisions of our
courts in evaluating whether or not a statute is ambiguous and whether an
interpretation would lead to absurd or strained consequences. These cases are no
longer relevant as the use of hotel (inn) is subject to interpretation as its meaning is
not plain on its face. The ambiguity is correctly resolved by DCD.
QZ
The Requests for Reconsideration of Suzanne Raymond and Jefferson County are hereby
granted, and the original Decision dated March 17, 2020, is hereby vacated. The appeal of
Townhornes at Ludlow Bay Association of the October 28, 2019, Code Interpretation is
hereby denied. The Administrative Code Interpretation issued by Patty Charnas, director,
DCD, and Unified Development Code Administrator, dated October 14, 2019, is hereby
affirmed. The second sentence in Conclusion 9 of the original Decision is revised to read:
Hearing Examiner