HomeMy WebLinkAbout2017 Non-conforming Shoreline lotsOFFICE OF THE HEARING EXAMINER
JEFFERSON COUNTY
DECISION ON RECONSIDERATION
CASE NO.: MLA17-00057 Code Interpretation Appeal
APPELLANTS: Michael and Victoria Gleeson
12295-15t" Avenue S.W. UU
Burien, WA 98146
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REPRESENTATIVE: Dennis D. Reynolds
200 Winslow Way West, Suite 380JEFFERSON COUNTY DCD
Bainbridge Island, WA 98110
By Report and Decision dated November 9, 2017, the Examiner granted the appeal of
Michael and Victoria Gleeson of the Jefferson County Department of Community
Development's interpretation of the Jefferson County Shoreline Master Program (SMP).
The Decision determined that the Gleesons' lot met the definition of "non -conforming lot"
as set forth in Section 18.25.270(5)(b) of the Jefferson County Code (JCC). DCD asserts
that Finding 12 in the Decision may render "any lot in the shoreline jurisdiction smaller than
the specified zoning designation (e.g. RR-5) as a "non -conforming lot"".
Mr. David Greetham testified that the present appeal is staff's first opportunity to interpret
the SMP regarding non -conforming lots. The appeal is also the Examiner's first opportunity
to consider the definition of "non -conforming lot" and the lot size/density issue. In addition,
variances are specific to the particular parcel at issue and cannot serve as precedent for
other parcels within the County. Thus, the Examiner's Decision is specifically limited to the
appellants' parcel. Jefferson County DCD may reargue its position de novo at future
appeal hearings in other lots within the Tala Shores subdivision or elsewhere in the
County.
In further review of this matter, it appears that even if a lot is determined to be non-
conforming, Section 18.25.270(5)(b) of the Jefferson County Code (JCC) provides in part-
... The administrator may reduce the standard buffer for new single-family
residences....
-1-
Said section then sets forth the setback requirement for a vacant lot with "existing homes
on both sides". Thus, in future applications DCD may want to consider evaluating the
accommodation of shoreline views and whether such views are "adequate and comparable
to adjacent residences, but not necessarily equivalent"... Said section may allow DCD the
opportunity to determine an appropriate shoreline view even for non -conforming lots.
DECISION:
The request for reconsideration is granted to clarify that the original Decision does not
mean that every lot within the shoreline jurisdiction that is smaller than the specified zoning
designation (e.g. RR-5) is a non -conforming lot. The Decision is not precedential in nature
and applies only to the appellants' lot.
ORDERED this 5th day of December, 2017.
TEPHEN K. CAUSSEAU , JR.
Hearing Examiner
-2-
,-ON �:� JEFFERSON COUNTY
y�. DEPARTMENT OF COMMUNITY DEVELOPMENT
621 Sheridan Street I Port Townsend, WA 98368
360-379-4450 1 email: dcd@co.jefferson.wa.us
�yS jII NG 0 www.co.jefferson.wa.us/commdevelopment
November 17, 2017
Stephen K. Causseaux, Jr. — Hearing Examiner
C/o Jefferson County Dept. of Community Development
621 Sheridan Street
Port Townsend, WA 98368
RE: Reconsideration of Report and Decision in MLA 17-00057 (Gleeson Code Interpretation Appeal)
Hearing Examiner Stephen K. Causseaux, Jr.;
Jefferson County issued a code interpretation regarding shoreline buffers on the Gleeson parcel, located at 234
Tala Shores Drive, Port Ludlow. The code interpretation was subsequently appealed by Michael and Victoria
Gleeson, resulting in an appeal hearing before the Hearing Examiner on October 24, 2017. The appeal was granted
under the report and decision ordered on November 9, 2017. Jefferson County has standing as its code
interpretation was the subject of the Gleeson appeal.
Jefferson County respectfully requests reconsideration of the decision to grant the appeal. Specifically, the County
seeks reconsideration of Finding of Fact 12 and the resulting Conclusion No. 2.
Finding No. 12 — Nonconforming Lots.
Finding No. 12 essentially results in a determination that lots not conforming to the allowable residential density
(see JCC 18.15.055 Allowable Density) be considered non -conforming lots with respect to establishing buffers
under the Shoreline Master Program. The finding includes discussion that the SMP does not have a minimum lot
size requirement.
While Jefferson County's eastern shorelines are typically zoned RR-5 (the most dense zoning allowed in the rural
area), a high proportion of shoreline parcels within the rural area were subdivided prior to GMA and thus are smaller
than five acres in size. If the majority of parcels within the rural residential zones could automatically proceed to the
buffer exception provisions at JCC 18.25.270, it is the County's belief that it undermines the intent of the SMO,
specifically the 150 foot shoreline buffer adopted as part of the 2014 updated SMP. It also would essentially negate
JCC 18.25.270(5)(a) (Nonconforming Lots — Development Allowed without a Variance (Modest Home Provision)).
This section provides a specific non -variance path for shoreline lots too shallow in depth to accommodate the
shoreline buffer in combination with the front yard setback.
Finally, it is noted that subsection JCC 18.25.270(5) (c) states: "Nonconforming Lots — Development Requiring a
Variance. Development on nonconforming lots that do not meet the requirements of subsection (5) (a) or (b) of this
section require a shoreline variance", thus providing potential relief for lots that do not qualify for the referenced
exceptions in (5) (a) and (b).
Proposed reconsideration/clarification.
For the above reasons, Jefferson County seeks clarification as to whether the decision renders any lot in the
shoreline jurisdiction smaller than the specified zoning designation (e.g. RR-5) as a "non -conforming lot".
I have read the above request for reconsideration and believe the contents to be true.
Sincerely,
Davie'etham, Planning Manager
Cc: Philip Hunsucker, Deputy Civil Prosecuting Attorney
Dennis D. Reynolds, representing Michael and Victoria Gleeson
RDennis D. Reynolds Law Office
J
200 Winslow Way W. Suite 380 Bainbridge Island, WA 98110
Land Use - fita Fisheries Law • Environmental w - Business law - Indian Law • Real Estate
206.780.6777 206.780.6865 fax ww.ddrlaw.com
July 24, 2017
By email(cb,rreetham@.Co.iefferson.wa.us) and United States Mail
David Greetham
Planning Manager
Jefferson County Department of Community_ Development
621 Sheridan St.
Port Townsend, WA 98368
Re: Gleeson — Official Code Interpretation Request
Dear Mr. Greetham:
Pursuant to the Unified Development Code, Jefferson County Code Section 18.40 please
treat this letter as a request for an Official Code interpretation. The request in made on behalf of
Michael and Victoria Gleeson. The property address is 234 Tala Shores Drive, Port Ludlow,
Washington 98365, Lot 33 of the Plat of Tala Shores, Jefferson County Parcel No. 998200130.
Proposed Interpretation.
(1) Interpret the Jefferson County shoreline use regulations as to buffers and setbacks,
including allowed deviations for the standard 150-feet buffer, as "trumping" other
provisions of the Uniform Development Code, e,g., the Critical Areas Ordinance. See
JCC § 18.25.270(4)(a)(b) provisions.
(2) Under the circumstances, recognize the setback established by a prior plat approval as
falling within shoreline policies, JCC§ 18.25.070(1)(e) ("The County should
recognize and honor buffers and setbacks established by existing plat...." and
requirements, JCC § 18.25.270(4)(f) (The County shall recognize and apply a buffer
established by an existing plat....). The requested interpretation would be such that
that the setback established by approval of a plat is controlling and considered vested
against the new shoreline regulations found in JCC Chapter 18.25.
(3) Alternatively, determine that the Gleeson parcel is a non- conforming lot as defined
by JCC§ 18.25.100 (14) (h).
(4) Alternatively, determine that the common setback provisions for a non -conforming
lot, JCC § 18.25.270(5)(b) apply, such to allow the proposed Gleeson home to be
constructed closer to the shoreline.
[90381-11
July 24, 2017
Page 2
Applicable Facts.
The Gleeson lot is approximately one-half acre. It is waterfront. The Gleeson's desire to
construct a modest single-family home on the lot approximately 50 feet from the top of the bank -
water line. Presumably, the ordinary highwater mark would be at the toe of the slope, if not
further down the beach. The parcel is zoned Rural Residential-5 — one (1) dwelling unit per five
acres ("RR-5"). The Shoreline environmental designation is Shoreline Residential ("SR"). The
lot is nonconforming as to its size under applicable zoning
The parcel is 75 feet wide and 242 feet long. The prior owners contemplated building a
residence with a 50-foot setback from the bluff, which was the appropriate setback at the time.
The proposed home would be about 50-feet wide. A four (4) foot deck would be on one side of
the home.
The prior owners applied for a three -bedroom septic permit in April 1990 signed off by
the Jefferson County Health Department in January 1993. From the enclosed drawing, Exhibit
1, it appears that the septic system is located approximately 132 feet from the bluff and
approximately 100 feet from an existing water well on the property. The prior residence was not
constructed.
The Gleeson property is part of the Plat of Tala Shores approved on September 7, 1962.
See Exhibit 2. The plat has been built out such that all the homes have the same approximate
setback from the bluff.
There are existing homes on each side of the Gleeson parcel. These homes sit
approximately 60 feet from their respective bluff tops, but that needs to be precisely confirmed
prior to building permit submittal. The home to the south is about six feet from the mutual
property line; the home to the north is about fifteen feet from the mutual property line. There is
thus no problem meeting the 300-foot requirement.
Specification of Code to be Interpreted.
Uniform Development Code, Chapterl8.25, Shoreline Master Program, JCC
§ 18.25.270(4)(a)(b); JCC§ 18.25.070(1)(c); JCC § 18.25.270(4)(f); JCC§ 18.25.100 (14) (h) and
JCC § 18.25.270(5)(b).
Necessity of Interpretation.
The JCSMP affects a significant number of shoreline property owners, many who own
undeveloped lots. The current shoreline regulations are relatively new, and there is little current
experience applying the new regulations to guide applicants, staff or property owners.
The public would benefit from a Code interpretation as to how to apply the shoreline
buffers. Jefferson County plans under the Growth Management Act, RC W 36.70A. One GMA
[90381-11
July 24, 2017
Page 3
policy is to ensure predictability and fairness in the permitting process. See RCW
36.70A.020(5). The requested interpretation would implement this policy.
Reasons and Justification for Requested Interpretation.
The proposed residence is within 300 feet of a residence constructed prior to adoption of
the JCSMP which is already encroaching on the standard buffer. Under JCC
§ 18.25.270(5)(b)(i), (ii) the Director "may reduce the standard buffer for a new single-
family...". Actually, the Director is required to do so. See JCC § 18.25.270(5)(b)(ii) (for
'`existing homes on both sides" of non -conforming lots "...the buffer shall be determined as..."
(Emphasis supplied). Then see Figures 18.25.270(1); (2); and (3), attached (Exhibit 3).
How to deal with a non -conforming lot under the Zoning Code is controlled by the
JCSM. JCC Section 18.25.500(1)(d) provides that new residential development "...should be
limited to densities that are consistent with the Jefferson County Comprehensive Plan goals and
policies, zoning restriction, and this program." Thus, there is the tie-in between the Zoning Code
and the SMP.
The SMP states the word "should" means that "...the particular action is preferred..."
Property rights must be factored in. Single-family homes are a preferred use under the
Shoreline Management Act and JCSMP. Thus, interpretation of these laws must be sensitive to
the right to use and develop shoreline property for residential use, a "light hand" approach, since
interpretations must not offend constitutional protections.
On the last point, in Washington state, the right to use and develop land is fundamental
and protected under both the Washington State and Federal Constitutions. As the Washington,
Supreme Court has stated:
Property in a thing consists not merely in its ownership and
possession, but in the unrestricted right of use, enjoyment and
disposal. Anything which destroys any of these elements of
property, to that extent destroys property itself. The substantial
value of property lies in its use If the right of use be denied, the
value of the Rroperty is annihilated and ownership is rendered a
barren right.
Afanufactured Housing Cmtys. v. State. 142 Wn.2d 347, 364, 13 P.3d 183 (2000) (quoting
Ackerman v. Port of Seattle. 55 Wn.2d 400, 409, 348 P.2d 664 (1960) (emphasis added).
Additionally, the Washington Supreme Court has long -recognized that "[a]lthough less
than a fee interest, development rights are beyond question a valuable right in property." YYest
Main Associates v. Bellevue, 106 Wn.2d 47, 50, 720 P.2d 782, (1986). "Despite the expanding
power over land use exerted by all levels of government, `[tjhe basic rule in land use law is still
(90381-11
July 24, 2017
Page 4
that, absent more, an individual should be able to utilize his own land as he sees fit."' Id (citing
Norco Constr., Inc. v. King County. 97 Wn.2d 680, 684, 649 P.2d 103 (1982)).
Property rights are not "poor relations" of other Bill of Rights guarantees. See Dolan v.
Tigard, 512 U.S. 374, 392 (1994).
The Shoreline Management Act (SMA) unequivocally states that coordinated planning is
necessary in order to protect the public interest associated with the shorelines of the state while,
at the same time, recognizing and protecting private property rights consistent with the
public interest. RCW 90.58.020 (emphasis supplied). The SMA also states that "the Legislature
further finds that much of the shorelines of the state and the uplands adjacent thereto are in
private ownership ...." RCW 90.58.020 (emphasis supplied).
The SMA declares that it -is the policy of the state to provide for the management of the
shorelines of the state by planning for and fostering all reasonable and appropriate uses." See
RCW 90.58.020. The policy of the SMA as set forth in RCW 90.58.020 strikes a balance
between protection of the shoreline environment and reasonable and appropriate use of the
waters of the state and their associated shoreline. See Nisqually Delta Assn v. City of DuPont,
103 Wn.2d 720, 727, 696 P.2d 1222 (1985).
The balance envisioned by the SMA anticipates that there will be some impact to
shoreline areas by development or continued use, repair and maintenance of existing structures
or developments. The SMA explicitly states " lallterations of the natural conditions of the
shorelines and shorelines shall be recognized by the department." RCW 90.58.020. (Emphasis
supplied.) Single-family homes are a priority use of the shorelines which falls within allowed
alterations of the shorelines.
Government cannot extinguish a right or liberty by merely enacting a law that purports to
subordinate that right or liberty. Chelan Basin Conservancy v. GBI Holding Co., No. 93381-2,
slip op. at 20 (July 6, 2017) (quoting Freedom Found. v. Gregoire, 178 Wn.2d 686, 706, 310
P.3d 252 (2013) (citing Marbury v. Madison, 5 U.S. (I Cranch) 137, 178, 2 L. Ed. 60 (1803)).
The $651.00 application fee is submitted with the hard copy of this letter. If you have
questions, or require clarification regarding the requested interpretation, please get back to me.
Thank you for your kind attention to these comments and enclosures
Very truly yours,
DENNIS D. REYNOLDS LAW OFFICE
Enclosures Dennis D. Reynolds
cc:
DDR/jb
190381-11
Gleeson — Code Interpretation
Exhibit 1
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Gleeson — Code Interpretation
Exhibit 2
598981 PGS:2 SWD
041291s2mtae11:59AA I p dll�w'*ROlflao -Rote Wn Grro11, AWitor
jefter
When recorded return to:
Michael F. Gieesoa
Victoria E. Gleeson
1229S 15th Ave SW
Burten, WA 98146
Filed for Record at Bequest of
All About Escrow, Inc.
Escrow Number: 16-0092
Statutory Warranty Deed O
THE GRANTORS Sarah F. Blossom and James K. Hattrf* wife an0(�
-rulderation of
TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSMN convoys and
warrants to Michael F. Gleason and Victoria E. Gleason, husband a ilowln described teal
estate, situated in the County of Jefferson, State of washtogton:
Abbreviated Legal:
Lot 33 Tula Shores M1
Tax Parcel Number(s): 998200130
Lot 33, Tula Shores, as per plat recorded is Volume 4 of Plob, eeorda of Jefferson County,
Washington. /��\
Situate to the County of Jefferson, Stew of Wasb, \
SUBJECT TO: SEE EKE(Brir"A" ATTA MADE A PART HEREOF.
Dated April 18, 2016 /I
Sarah F. Blossom la �klattnc t
O
STATE OF washined.
COUNTY OF Jefferson SS:
I certify that I or enco that Sarah F. Btassom and James Y.Hattrtek
ace the persons who be me, and said persaas at knowledged that they
Signed this it to be their 6roe slid roluntaty set for the
uses and puryoses this instrument.
Dated: , 2 2. L
Jr vas+ off_
Pg Rk1� �pN i0. Notary Public fa and for the State of Washington
Residing at P15(T- TOu�"'bw
Myappointmemwmiras S- A -2'0l41
y�ti�,pv@1fC
trrj� W.
749691 123286 t'4/29/2016 3,029.22*
ERBIBIT "A"
SUBJECT TO:
69MI Page 2 of 2 041291201611:69 AM
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Gleeson — Code Interpretation
Exhibit 3
Jefferson County Code 18.25.270 Critical areas, shoreline buffers, and ecological protection. Page 8 of 10
common line drawn between the nearest corners of each adjacent residence (see Figure
18.25.270(1)), or (B) a common line calculated by the average of both adjacent residences'
existing setbacks (i.e., (y+z)/2=x buffer; see Figure 18.25.270(2)).
(III) Existing Home on One Side. Where there Is only one existing residence adjacent to the
proposed residence, the common line buffer shall be determined as the greater of either (A)
a common line drawn between nearest corner of the foundation for the adjacent residence
and the nearest point of the standard buffer on the adjacent vacant lot (see Figure
18.25.270(3)), or (B) a common line calculated by the average of the adjacent residence's
setback and the standard buffer for the adjacent vacant lot (i.e., (y+z)/fix buffer; see
Figure 18.25.270(4)).
(iv) Figures 18.25.270(1) through (4) Illustrate examples of the common line buffer
allowance. When discrepancy between the text and the graphic exists, the text shall govern.
Graphics are for illustration only, buffer shall be measured perpendicularly from the ordinary
high water mark as per this section.
Figures 18.25.270(1) — (4)
Figure 18.?8.270(1)
r�.i�r aa..o�+dn Ham.
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Figure 18.25.270(2)
The Jefferson County Code is current through Ordinance 6-16, passed November 3, 201C
Jefferson County Code 1825.270 Critical areas, shoreline buffers, and ecological protection. Page 9 of 10
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(c) Nonconformtng Lots -- Development Requiring a Variance. Development on nonconforming
lots that do not meet the requirements of subsection (5)(a) or (b) of this section require a
shoreline variance.
(d) Water -Oriented Uses/Development. When otherwise consistent with this program and
Chapter 18.22 JCC, the following water -oriented uses/developments may be permitted within a
shoreline buffer without a shoreline variance. The amount and extent of buffer modification shall
The Jefferson County Code Is current through Ordinance 6.16, passed November 3, 2016
David Greetham
From: Jon Brenner <jon@ddrlaw.com>
Sent: Monday, July 24, 2017 4:36 PM
To: David Greetham
Cc: 'Dennis D. Reynolds Law Office'
Subject: Gleeson - Code Interpretation Request
Attachments: Greetham re code interpretation 072417.pdf
Dear Mr. Greetham,
Please find attached a Code Interpretation Request for Gleeson. A hard copy will follow in US Mail.
Sincerely,
Jon Brenner
Paralegal
Dennis D. Reynolds Law Office
200 Winslow Way West, #380
Bainbridge Island, WA 98110
(206) 780-6777, tel / (206) 780-6865, fax
This message and any attachments hereto are intended only for use by the addressee(s) named herein. It may contain confidential, proprietary or legally privileged
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ARCH ITECTU REPC
Richard Berg, Principal Architect
Amy I. Dahlberg and Tamara Halligan, Associates
January 24, 2017
MEMORANDUM
To: David Greetham, Planning Director
Department of Community Development
Jefferson County
621 Sheridan Street
Port Townsend, WA 98368
From: Richard Berg, Terrapin Architecture PC
Re: Development of Michael Gleeson's property at 234 Tala Shore Drive in Port Ludlow,
Parcel # 998 200 130
My clients, Michael and Victoria Gleeson, recently purchased the property at 234 Tala Shore
Drive in Port Ludlow. The property is approximately a half -acre in size, and is located between
Tala Shore Drive and the shoreline. The Gleesons would like to build a 3000 square foot home
on the property and a detached 2000 square foot shop building on the property, which in our
opinion is a reasonable expectation for development of a half -acre parcel in Jefferson County.
Other adjacent properties in the plat were developed from the 1960s through the 1990s, when
shoreline rules at that time allowed the houses to be built approximately 50 feet from the top of
the bluff. The Gleeson's lot is one of only a few lots that are undeveloped at this time, with a
largely unbroken line of houses extending in both directions from their property, located
approximately 50 feet back from the bluff, including the lots on either side of 234 Tala Shore
Drive.
A previous owner of the property had a well drilled and a septic system installed on the property.
The well is adjacent to Tala Shore Drive, and the septic drainfield is located just over 100 feet
away from the well, approximately 130 feet from the top of the bluff. The intention of the
previous owner was to build a residence between the bluff and the septic drainfield, consistent
with development of the adjacent properties. The house was never built.
Current shorelines rules require a buffer of 150 feet from the Ordinary High Water Mark
(OHWM), with a 10 foot setback from the buffer line. Complying with this buffer would mean
locating both the house and the detached shop on the landward side of the existing septic
drainfield.
727 Taylor Street, Port Townsend, WA 98368 360-379-8090 www.terrapinarchitecture.com
The current zoning is RR1:5, meaning that the minimum lot size to construct a residence is 5
acres. Parcel #998 200 130, at approximately 1/2 acre, was legally established in 1962, which
makes it a legal nonconforming lot.
Locating the house landward of the drainfield would place the house approximately 100' further
from the shore than the immediately neighboring houses, restricting the shoreline view from the
Gleesons' residence in a way that would not be comparable to the view from the adjacent
residences. Thus, the Gleesons' nonconforming lot meets the requirements of JCC 18.25.270
(5)(b), which states:
(5) Regulations — Exceptions to Critical Area and Shoreline Buffer Standards
(b) Nonconforming Lots — Common Line Buffer. For the purpose of accommodating shoreline views to
be adequate and comparable to adjacent residences, but not necessarily equivalent, the administrator
may reduce the standard buffer for a new single-family residence on nonconforming lots consistent with
the following criteria:
(i) The proposed residence must be located within 300 feet of an adjacent legally established single-
family residential primary structure constructed prior to adoption of this program that encroaches on the
standard buffer. The mere presence of nearby shacks, sheds or dilapidated buildings does not constitute
the existence of a residence, nor can such structures be used to determine a common line buffer. The
nearest corners of the adjacent residences are those closest to the side -yard property line of the proposed
residence.
(ii) Existing Homes on Both Sides. Where there are existing residences adjacent on both sides of the
proposed residence, the buffer shall be determined as the greater of either (A) a common line drawn
between the nearest corners of each adjacent residence (see Figure 18.25.270(1)), or (B) a common line
calculated by the average of both adjacent residences' existing setbacks (i.e., (y+z)/2=x buffer; see
Figure 18.25.270(2)).
(iv) Figures 18.25.270(1) through (4) illustrate examples of the common line buffer allowance. When
discrepancy between the text and the graphic exists, the text shall govern. Graphics are for illustration
only, buffer shall be measured perpendicularly from the ordinary high water mark as per this section.
Figures 18.25.270(1) — (2)
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727 Taylor Street, Port Townsend, WA 98368 360-379-8090 www.terrapinarchitecture.com
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JCC 18.25.270 (5)(c) states that "development on nonconforming lots that do not meet the
requirements of subsections 5(a) or 5(b) require a shoreline variance. Since the Gleesons' lot is
nonconforming and meets the requirements of subsection 5(b), no variance should be required.
The Gleesons and Terrapin Architecture request that you review this information and provide us
with a determination of the reduction in the standard buffer as per subsection 5(b) above.
If you have any questions about the information contained in this memo, please call me to
discuss at 379-8090.
Thank you very much!
727 Taylor Street, Port Townsend, WA 98368 360-379-8090 www.terrapinarchitecture.com
David Greetham
From:
Richard Berg <richard@terrapin-arch.com>
Sent:
Tuesday, January 24, 2017 3:25 PM
To:
David Greetham
Cc:
Michael Gleeson
Subject:
234 Tala Shore Drive
Attachments:
DCD memo 1-24-17.pdf
Categories: Follow up
Hi David,
Please see the attached memo about residential shoreline development at 234 Tala Shore Drive.
Let me know if you have any questions --
Thank you,
Richard
Richard Berg
Terrapin Architecture, PC
727 Taylor Street
Port Townsend, WA 98368
360-379-8090
Terrapin Architecture
M
David Greetham
From:
David Greetham
Sent:
Friday, January 27, 2017 3:57 PM
To:
'Richard Berg'
Subject:
RE: 234 Tala Shore Drive
Hi Richard,
Thanks again for the submittal as a follow up to our recent meeting.
Based on the information submitted, a shoreline variance would be required for County review of the proposal. The
code basis for this determination follows:
JCC 18.25.660 addresses nonconforming shoreline development. Subsection (5) contains a provision stating
"New single-family residential development on lots whose dimensions do not allow a residence to be
constructed outside the standard shoreline buffer may be allowed without a variance in accordance with the
provision in JCC 18.25.270 (nonconforming lots)."
JCC 18.25.270(5)(b) contains guidance for determining the "Nonconforming Lots - Common Line Buffer", as cited
in your letter.
JCC 18.25 (Shoreline Master Program) defines a nonconforming lot as "a legal lot of record in existence prior to
the effective date of this program and any amendments thereto, on which it is not possible to construct a
structure outside of/landward of the shoreline buffer (emphasis added) or which does not otherwise meet the
minimum lot size requirements as set forth in this program. Depth of lot is measured as the distance from
ordinary high water mark to the inside edge of the frontage setback."
As the Shoreline Master Program doesn't contain specific minimum lot size requirements, the emphasized wording
regarding the shoreline buffers would guide in this case. At this time, the County doesn't have information showing
that the residence and garage cannot be constructed outside of the 150 foot shoreline buffer + 10 foot construction
setback. As such, the proposal would need to be processed as a Shoreline Variance, and would be reviewed in
accordance with the variance criteria.
Please feel free to reply with questions, or if you'd like to discuss further.
Sincerely,
David Greetham
Planning Manager
Jefferson County Department of Community Development
621 Sheridan St., Port Townsend, WA 93868
(360) 379-4488 * dgreetham(@co.jefferson.wa.us
From: Richard Berg [mailto:richard@terrapin-arch.com]
Sent: Tuesday, January 24, 2017 3:25 PM
e
To: David Greetham <DGreetham@co.jefferson.wa.us>
Cc: Michael Gleeson <mgleeson61@yahoo.com>
Subject: 234 Tala Shore Drive
Hi David,
Please see the attached memo about residential shoreline development at 234 Tala Shore Drive.
Let me know if you have any questions --
Thank you,
Richard
Richard Berg
Terrapin Architecture, PC
727 Taylor Street
Port Townsend, WA 98368
360-379-8090
Terrapin Architecture
OFFICE OF THE HEARING EXAMINER
CASE NO.:
APPELLANTS:
REPRESENTATIVE:
SUMMARY OF REQUEST:
JEFFERSON COUNTY
REPORT AND DECISION
MLA17-00057
Michael and Victoria Gleeson
12295-15th Avenue S.W.
Burien, WA 98146
Dennis D. Reynolds
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
NOV 13 2017 10
FFFERSON COUNWOCD
Pursuant to Jefferson County Code Section 18.40.390 the Dennis D. Reynold Law Office
submitted an appeal of a Unified Development Code Interpretation on behalf of Michael
and Victoria Gleeson. The Gleesons propose construction of a single-family home
approximately 50 feet from the top of bank at 234 Tala Shores Drive, Port Ludlow. A
request for code interpretation of the applicable shoreline buffer and building setback under
Jefferson County Code Title 22 (Shoreline Master Program) was submitted on July 24,
2017. Jefferson County issued a code interpretation on August 23, 2017, determining an
applicable shoreline buffer of 150 feet for the subject parcel. The appellant has appealed
the County code interpretation, a Type II decision.
SUMMARY OF DECISION: Appeal granted.
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 October 24, 2017, at 3:00 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:
1X
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.
DAVID GREETHAM appeared, presented the Department of Community Development
code interpretation, and testified that he concurs with the appellant that a single-family
residence is a preferred use, but does not agree with the proposed location on the parcel.
He then referred to the Shoreline Master Program and its requirement of a 150 foot wide
buffer and the authorization to modify said buffer. The first alternative to modify is provided
by JCC 18.25.270(4)(F) that recognizes existing buffers. The appellant's parcel is part of a
1962 plat, but a buffer was never established as there were no zoning or shoreline
regulations in place at the time. Therefore, there is no existing buffer. The appellant has
pointed to existing houses along the shoreline with 50 to 60 foot setbacks that have now
increased to 150 feet. The second point concerns the location of the onsite septic system
that was approved in 1990 and whether it establishes the buffer width. While the septic
tank plans show a drainfield behind a house footprint at the top of the bank. While the
septic system was installed, current codes specifically provide that no buffer is established
by installation of a septic system. Thirdly, he looked at where modifications are allowed as
set forth in JCC 18.25.270(4)(J), but none of the sections apply. The Critical Areas
Ordinance allows a 25 percent reduction, but buffer averaging is not requested. He then
reviewed nonconforming lots and noted the depth of the lot at 272 feet. The appellants' lot
can provide the entire buffer, or at least a majority of the buffer. Another modification is
where the depth of the lot is equal to or less than the buffer, which is not the case here.
The appellants could request a shoreline variance. Staff finds that the lot is not a
nonconforming lot under the SMP, and therefore the appellants need a variance to
construct their home as proposed.
DENNIS REYNOLDS, attorney at law, appeared and asked questions of Mr. Greetham
who responded that the applicable zoning is RR that requires a five acre, minimum lot size.
The new SMP was adopted in 2014, and this is his first interpretation. It is not a long
standing interpretation. It is consistent with the code's application however. Mr. Reynolds
then proceeded by stating that the appellants are aware of the options to reduce the
setback, but do not want to consider the variance option. Other avenues are available and
are not precluded by the variance process. He then introduced Exhibit 5 that shows
neighboring parcel setbacks and the common boundary lines.
JENNIFER LIOU, Marine Surveys, appeared and testified that on Exhibit 5 the blue line
shows the top of the bluff that they created using aerial photographs. The line represents
the top of the bluff and the ordinary high watermark is at the toe of said bluff or farther out.
Mr. Gleeson's lot is highlighted in red and to the north and south the elevation distances
are shown from the bluff line. The Gleesons wish to build their home 58 feet from the top
of the bluff. These lines do not represent the actual location of the bluff. The
2X
measurements shown on Exhibit 5 are distances from existing single-family homes to the
top of the bluff. They represent the setback and all are estimates and not a survey. It is
accurate to say the setback is an unknown factor, but they were conservative in
determining the ordinary high watermark, which is a greater distance away than the top of
the bluff. The blue line is from 1962 and is not an estimate. The County has allowed
building on lots along this shoreline throughout the years. Exhibit 6 shows the common
line between the appellants' lot and homes on adjacent parcels. It is unclear where the
edge of the house is to the south, and it could be a couple of feet to the rear.
MICHAEL GLEESON, appellant, appeared and testified that several codes would allow
construction of his home with a 50 foot wide buffer. They based their decision on the top
of the bluff and Exhibits 5 and 6 show the setbacks. Exhibit 7 is a highlighted copy. They
purchased the lot early last year without knowing of the 150 foot wide setback requirement.
They felt that a common setback line was established and that they could work through the
process and provide mitigation. He introduced Exhibit 8, the septic application that does
not differ substantially from those of the north and south neighbors. They found it hard to
show the boundary, and the variance process would be very expensive. Exhibit 7 shows
the building area of the property near the road. Such location would have little view
between the houses and would decrease the value of the property. A house could be built,
but it would not meet their purposes. They want a house and detached garage with a
drainfield between, the same as everyone else. If they built where the County would allow,
they could not build a garage and shop. If they build the main home at the street, they
would encroach into the neighbor's view to the east across the street. A two story house
60 feet from the bluff would trail down due to the topography. The septic system allows a
three bedroom home. At 150 feet back they might need to relocate the drainfield. A
functioning well and electrical service are also already on the lot. The drainfield and well
locations satisfy the 100 foot wide setback. If they moved the drainfield back, they could
probably still meet the setback. They had a survey performed and found that the
neighbor's home is setback 57 feet from the top of the bluff. They met with Mr. Greetham
once after the intake session and then had correspondence thereafter. He looked forward
to a collaborative process, and had his goal, a method of how can we make this work?
They want the County to look at options. The County has done the same for other houses
over the past decades.
MR. GREETHAM reappeared and testified that this project is a challenge for the County as
he can't say for certain that the appellant could obtain a shoreline variance. The SMP was
adopted and prepared as a partnership between the County and DOE. It was accepted
and approved by DOE.
MR. REYNOLDS then reappeared and entered Exhibit 9, his brief. He testified that he
challenged the SMP, but did not prevail. He agrees with the Examiner that we cannot read
out an entire section of the law. The SMP must be read together. He sees a tie-in
between Subsections (A) and (B) and that it meets the common boundary provisions. He
agrees with Mr. Greetham regarding liberal construction, but we are looking at protection of
private property rights. Here we have no regulation setting a buffer, but over time, the
3X
County set the buffer. Did the County adhere to a situation where it established a buffer in
the past? Here it did not. The SMA does not say "no, no, no", but allows residential uses
along the shoreline. The septic doesn't set a buffer width, but the code recognizes
structures. It allows a 50 foot setback for structures. Nothing here would create a
precedent as it is really a unique situation. The plat could not have created a buffer
because the SMA was not in existence. Therefore, the question is: Can the County's
previous action create the buffer?
No one spoke further in this matter and the Examiner took the matter under advisement.
The hearing was concluded.
NOTE: A complete record of this hearing is available in the office of Jefferson
County Department of Community Development.
FINDINGS, CONCLUSIONS, AND DECISION:
FINDINGS:
1. The Hearing Examiner has heard testimony, admitted documentary evidence into
the record, and taken this matter under advisement.
2. This Appeal of a Code Interpretation Request is exempt from review pursuant to the
State Environmental Policy Act (SEPA).
3. Jefferson County provided proper notice of the present Appeal hearing.
4. Appellants, Michael and Victoria Gleeson, have a possessory ownership interest in
an approximately one-half acre lot that extends from the west side of the right-of-
way of Tala Shores Drive to the ordinary high watermark of Puget Sound in the Port
Ludlow area of unincorporated Jefferson County. The parcel measures 75 feet in
width and 242 feet in depth. The parcel is Lot 33 of the plat of Tala Shores
approved by Jefferson County in 1962. According to Exhibit 7 and the Department
of Community Development (DCD), the plat is mostly built -out with single-family
homes. All homes abutting the shoreline have a similar shoreline buffer width that
averages 90.5 feet from the top of a steep bank descending to the ordinary high
watermark.
5. Chapter 18.25 of the Jefferson County Code (JCC) sets forth the Jefferson County
Shoreline Master Program (SMP). The SMP designates the Tala Shores' shoreline
including appellants' parcel as Shoreline Residential (SR). Section 18.25.210(3)(e)
JCC defines the purpose of the SR designation as follows:
Purpose. The shoreline residential designation accommodates
residential development and accessory structures that are properly
M,
located and designed, in areas where high density residential
developments and services exist or are planned.
Table 18.25.220 JCC authorizes "Single-family (and normal appurtenances)" and
"Accessory Structures" as permitted uses landward of the ordinary high watermark.
Section 18.25.270(4)(e) JCC requires a standard 150 foot wide, minimum buffer
from marine shorelines in all shoreline environments. In addition, JCC
18.25.270(4)(d) requires a ten foot wide, building setback from said 150 foot wide
buffer.
6. Appellants' parcel and other parcels in the area are located within the Rural
Residential 1 Unit/5 Acres (RR1:5) zone classification of the JCC. Section
18.15.015(1)(a) JCC provides that the purpose of the RR1:5 classification is to allow
for continued residential development "consisting of relatively high density pre-
existing patterns of development, along the County's coastal areas, and within
areas within or adjacent to rural centers and rural crossroads...." Appellants
propose to locate their home with a shoreline buffer width consistent with existing
homes on other Tala Shores lots. Such proposal complies with JCC
18.15.015(1)(a) that allows new residential development along shorelines consistent
with existing patterns of development. Section 18.30.050 JCC entitled "Density,
dimension, and open space standards" includes a Table that sets forth the
maximum densitv of the RR1:5 classification as one dwelling unit per five acres.
However, said section does not provide a minimum lot size. Furthermore, the SMP
does not establish a minimum lot size for any of its shoreline designations.
However, appellants' lot size is substantially smaller than contemplated by the
maximum density authorized in the RR1:5 classification. Thus, if the Table
specified a minimum lot size consistent with the required maximum density, the
appellants' lot would be substantially nonconforming.
7. DCD acknowledges that appellants' lot in and of itself does not meet minimum
density standards, but that appellants may construct a single-family residential
dwelling on said lot since the lot was created in 1962 under a different zoning code.
However, DCD asserts that in siting their home appellants must recognize the 150
foot wide, shoreline buffer plus ten foot setback therefrom, and construct their home
a minimum of 160 feet landward of the ordinary high watermark. However, both
abutting shoreline lots are improved with single-family homes much closer to the
shoreline. The house abutting appellants' north property line measures 58 feet from
the top of the bluff. The house on the parcel abutting appellants' south property line
measures 57 feet from the top of the bluff. Both abutting lots contain approximately
the same square footage as appellants' lot. Buffer widths from other Tala Shores
shoreline lots vary from a maximum of 129 feet to a minimum of 45 feet. Appellants
propose to construct their home with a buffer width equal to an average of the buffer
widths of the homes on the abutting parcels to the north and south (approximately
58 feet).
5X
8. Section 18.25.100(14)(h) JCC defines "Nonconforming lot" as follows:
"Nonconforming lot" means a legal lot of record in existence prior to
the effective date of this program [SMP] and any amendments
thereto, on which it is not possible to construct a structure outside
of/landward of the shoreline buffer or which does not otherwise meet
the minimum lot size requirements as set forth in this program. Depth
of lot is measured as the distance from ordinary high water mark to
the inside edge of the frontage setback. [emphasis added]
Staff correctly asserts that neither the SMP nor RR1:5 zone classification establish
a minimum lot size requirement, and that JCC 18.30.050 provides only maximum
density requirements. Therefore, since the JCC provides no minimum lot size, staff
concludes that appellants' lot meets all lot size requirements and is not a
nonconforming lot. Staff also finds that the appellants' lot can accommodate a
single-family residential dwelling landward of the 150 foot wide, shoreline buffer,
and is therefore not nonconforming. Therefore, appellants' lot does not meet either
alternative of the "Nonconforming lot" definition and is not entitled to the
nonconforming lot buffer reductions.
9. Appellants assert that the lot does not meet minimum lot size requirements and is
entitled to a buffer width in accordance with JCC 18.25.270(5)(b) that reads as
follows:
(b) Nonconforming Lots -Common Line Buffer. For the purpose of
accommodating shoreline views to be adequate and comparable to
adjacent residences, but not necessarily equivalent, the administrator
may reduce the standard buffer for new single-family residences on
nonconforming lots consistent with the following criteria:...
(ii) Existing Homes on Both Sides. Where there are existing
residences adjacent on both sides of the proposed residence,
the buffer shall be determined as the greater of either "A" a
common line drawn between the nearest corners of each
adjacent residence or... "B" a common line calculated by the
average of both adjacent residences' existing setbacks....
Appellants assert that they have a nonconforming lot with existing homes on both
sides and may therefore calculate the shoreline buffer width pursuant to the above
quoted section.
10. Appellants initially argue that Jefferson County's previous approval of numerous
building permits along the shoreline establishes a setback forthe plat in accordance
with JCC 18.25.270(1)(c) that reads:
(c) The county should recognize and honor buffers and setbacks
established by existing plats, preliminary plats, issued permits, binding
site plans (BSPs), and site plan approval advanced determinations
(SPAADs), and by development agreements that are consistent with
Chapter 36.7013 RCW. [emphasis added]
Section JCC 18.25.270(1)(c) is repeated and emphasized in JCC 18.25.270(4)(f)
that reads:
The County shall recognize and apply a buffer or setback established
by an existing plat, preliminary plat, issued permit, binding site
plan .... [emphasis added]
Said sections are consistent with JCC 18.15.015(1)(a) as set forth in Finding 6
above. The plat of Tala Shores approved in 1962 did not establish a setback from
the ordinary high watermark as the plat predated adoption of the State Shoreline
Management Act (SMA) and Jefferson County had not adopted its initial shoreline
regulations. However, subsequent to preliminary plat approval Jefferson County did
issue numerous building permits for homes on shoreline lots within said plat that
have an average setback of 90.5 feet from the top of the bluff. Since all code
sections encourage or require recognition of setbacks established by "issued
permits", and because staff acknowledges that the Tala Shores subdivision is
almost built -out, the issued permits for homes within the preliminary plat establish a
shoreline buffer width and implement JCC 18.15.015(1)(a).
11. Appellants also argue that applying for and receiving an onsite septic disposal
system permit and construction of the onsite septic system creates a structure on
the site and therefore authorizes construction of a house pursuant to the previous
SMP that required a minimum 50 foot wide buffer. However, our Washington
Supreme Court in Snohomish County, et. al., v. Pollution Control Hearings Board,
et. al., 187 Wn. 2d 346 (2017), determined that a building permit is necessary to
vest a project. Therefore, the onsite septic system does not vest the appellants'
building permit application to the previous SMP. The appellants also make
constitutional arguments that are beyond the scope of the Examiner's authority to
resolve.
12. Appellants argue that their lot is nonconforming and eligible for reduced buffers
authorized for nonconforming lots with existing homes on both sides (JCC
18.25.270(5)(b)). Section 18.25.100(14)(h) JCC that sets forth the definition of
"Nonconforming Lot" provides two alternatives for qualifying a lot as
"nonconforming". The first alternative provides that a nonconforming lot is one
wherein it is not possible to construct a structure landward of the shoreline buffer.
Appellants and staff agree that appellants' lot can support a home 160 feet from the
ordinary high watermark, and therefore the lot does not meet the first alternative of
7X
the definition. The second nonconforming lot alternative provides that the lot must
have insufficient size to meet the "minimum lot size requirements as set forth in this
program [SMP]". However, as previously found neither the SMP nor the RR1:5
zone classification have a minimum lot size requirement. Such renders the SMP
ambiguous as to the meaning of the minimum lot size requirement and how a
property owner can meet the second, nonconforming lot alternative. Our courts
have provided guidance in interpreting ambiguous statutes to include county
ordinances. In Nationscapital v. Department of Financial Institutions, 133 Wn. App.
723 (2006), our Court of Appeals wrote:
...Our fundamental objective in statutory interpretation is to give effect
to the legislature's intent... If a statute's meaning is plain on its face,
then we must give effect to that plain meaning as an expression of
legislative intent... If a statute is susceptible to more than one
reasonable interpretation, after this inquiry, the statute is ambiguous
and we may resort to additional cannons of statutory construction or
legislative history...
... We avoid constructing a statute in the manner that results in an
unlikely, absurd, or strained consequences... Instead, we favor an
interpretation consistent with the spirit or purpose of the enactment
over a literal readina that renders the statute ineffective. 133 Wn.
App. 723 @ 736, 737 [emphasis added]
In Hastings v. Grooters, 144 Wn. App. 121 (2008), our Court of Appeals wrote:
The language of a statute must be read in context with the entire
statute and construed in a manner that is consistent with the general
purpose of the statute ... All provisions of the statute must be
considered in light of one another, and, if possible, harmonized to
ensure proper construction; but if the language remains susceptible to
two constructions, one which carries out and the other which defeats
the statute's purpose, the former construction should be adopted. 144
Wn. App. 121 @ 127
Applying the above rules of interpretation it becomes clear that the legislative body
intended to allow substandard lots in areas already developed to utilize the
exceptions for nonconforming lots. Section 18.15.015(1)(a) JCC provides for
continued residential development consistent with pre-existing patterns, and JCC
18.25.270(1)(c) and 18.25.270(4)(f) recognize buffers established by issued
permits. Finally, JCC 18.25.270(5)(b) establishes a specific buffer for
nonconforming lots that have residences constructed on both abutting lots.
Interpreting the appellants' lot as a nonconforming lot of substantial size in the
RR1:5 zone and SMP "carries out" the legislative body's intent. Said interpretation
also avoids the absurd result of requiring appellants to locate their home
ZM
substantially landward (100 feet or more) of all shoreline homes in the Tala Shores
subdivision. Staff's interpretation of the nonconforming lot provision creates an
inconsistency among the above JCC sections, whereas appellants interpret said
sections consistently.
CONCLUSIONS:
1. The Hearing Examiner has jurisdiction to consider and decide the issues presented
by this request.
2. Sections 18.25.270(1)(c), 18.25.270(4)(f), and 18.25.100(14)(h) JCC when read
together establish a shoreline buffer width for Tala Shores in accordance with
previously issued permits. Furthermore, appellants' lot is a nonconforming lot as it
does not meet "minimum lot size requirements as set forth in this program". Since
appellants' lot has existing homes on both sides, DCD should use JCC
18.25.270(5)(b) to determine the buffer width.
DECISION:
The appeal of Michael and Victoria Gleeson is hereby granted.
ORDERED this 9th day of November, 2017.
S EPHEN K. C U SEA al, JR.
Hearing Examiner
9X
I
Gleeson Appeal
Neighboring Parcels
Setbacks & Common Lines
Date: 10/24/2017
Legend
Jefferson County Parcels
Gleeson Parcel
20 neighboring parcels
Approx 1962 Top of Bluff Line
—T Google Earth Bluff Line
----- Common Lines
House to Top of Bluff (Approx) = 90.5' Average
Distances labeled on map are
estimated lengths based on aerial photo.
998200302
91'
998200301
50
998200132
80 z
' 58.
998200131
—'
998200130
5T
998200129
81'
998200128
�
998200127
998200126
998200125
70'
998200123
998200122 129'
1 inch = 200 feet
i
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Feet N
IVrvice Layer
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Dennis D. Reynolds Law Office
iMR 200 Winslow Way W. Suite 380 Bainbridge Island, WA 98110
Land Use • Fisheries Law • Environmenml Liw • Business Law • Indian Law • Real Estate
206.780.6777 206.780.6865 fax w-Adr1aw.com
March 7.2017
By Email (mhaasOco,.iefferson wa us) Only
Michael Haas, Prosecuting Attorney
Jefferson County Prosecuting Attorney's Office
P.O. Box 1220
Port Townsend, WA 98368
Re: Gleeson Shoreline Property
Dear Mr. Haas:
Michael and Victoria Gleeson own shoreline property with a marine bluff located in
unincorporated Jefferson County. They desire to construct a residence between the existing
septic system on the property and the bluff. The home site would be consistent with the location
of residences on neighboring property on both sides of their property. See enclosed sketch
(Exhibit 1)
Their inquiry relates to the shoreline buffer, not any steep slope or hazard slide area
setbacks. The Gleesons would appreciate your office setting a meeting with the assigned civil
deputy who represents the Department of Planning and Community development to further
discuss their interpretation of the County's shoreline regulations, which they perceive allow the
development as proposed. I plan to attend the meeting.
Development History
The property address is 234 Tala Shores Drive, Port Ludlow, Washington 98365, Lot 33
of the Plat of Tala Shores, Jefferson County Parcel No. 998200130. The lot is approximately
one-half acre. It is 75 feet wide and 242 feet long. Prior owners contemplated building a
residence with a 50-foot setback from the bluff, which was the appropriate setback at the time.
In conjunction therewith, the prior owners applied for a three -bedroom septic permit in April
1990. A Partial Finish was signed off by the Jefferson County Health Department in January
1993. From the enclosed drawing, it appears that the septic system is located approximately 132
feet from the bluff and approximately 100 feet from an existing water well on the property. The
prior residence was not constructed.
Zoning / Shoreline Designation
The parcel is zoned Rural Residential-5 — one (1) dwelling unit per five acres ("RR-5").
The Shoreline environmental designation is Shoreline Residential ("SR"). The lot is
nonconforming.
190381-11
Michael Haas, Jefferson County Prosecuting Attorney
March 7, 2017
Page 2
The JCSMP
The Jefferson County Shoreline Master Program establishes a 150 foot marine buffer and
10 foot building setback. See JCC § 18.25.270(4)(d) through (e). The SMP buffer "trumps"
other provisions of the Uniform Development Code, e. g., the Critical Areas Ordinance. See JCC
§ 18.25.270(4)(a) provisions. The "standard buffer" is not actually "standard" because there are
special buffers set by the Uniform Development Code, two which are applicable to the Gleeson
property.
(1) Prior Plat
The Gleeson property is part of the Plat of Tala Shores approved on September 7, 1962.
See Exhibit 2. The plat has been built out such that all the homes have the same approximate
setback from the bluff. Under the unique circumstances, the County should recognize the de
facto setback. See JCC § 18.25.270(4)(f).
(2) Common Setback Line
In addition, the "common setback" provisions apply to nonconforming lots when an
adjacent shoreline parcel is already developed, which is the Gleeson's situation.. See JCC
§ 18.25.270(5)(b). In order to maintain views that are comparable for residences, a special
buffer for a new single family residence is established if. (a) The proposed residence is within
300 feet of a residence' constructed prior to adoption of the JCSMP which is already
encroaching on the buffer; or (b) When there are houses on both sides of the build site, the
imaginary line between the nearest corners of the existing buildings, or the average distance of
the setbacks of the existing buildings, whichever calculation is larger. JCC § 18.25.270(5)(b)(i),
(ii). See Figures 18.25.270(1); (2); and (3), attached (Exhibit 3)
The referenced regulations state the Director "may reduce the standard buffer for a new
single-family..." but then states for "existing homes on both sides" of a non -conforming lots
"...the buffer shall be determined as...." See JCC § 18.25.270(5)(b)(ii) (emphasis supplied).
This language is mandatory.
It appears DCD staff may be misinterpreting or misapplying the JCSMP for the Gleeson
proposal. DCD seems to be saying that since a "building pad" is available landward of the
"standard buffer," that site must be used unless a "shoreline variance" is obtained. With fullest
respect, this interpretation impermissibly reads out of the Code the Common Line Buffer
language set out above. JCC § 1.8.25.270(5)(b)(ii).
It is true that JCC § 18.25.270(5)(a) addresses a "legal lot" that is "... nonconforming
with respect to the required buffer standards ...." The Gleeson property is long enough to be
Shacks, sheds, and run-down buildings are not considered residences.
[90370-1]
Michael Haas, Jefferson County Prosecuting Attorney
March 7, 2017
Page 3
conforming to the standard setback. So that is not the applicable regulation. Again, JCC
§ 18.25.270(5)(b) is the common line buffer, which is on point. This provision applies to
"nonconforming lots." That term is defined as follows in the JCSMP:
"Nonconforming lot" means a legal lot of record in existence prior
to the effective date of this program and any amendments thereto,
on which it is not possible to construct a structure outside
of/landward of the shoreline buffer or which does not otherwise
meet the minimum lot size requirements as set forth in this
program. Depth of lot is measured as the distance from ordinary
high water mark to the inside edge of the frontage setback."
JCC § 18.25.100(14) (h) (emphasis supplied).
Under the law, the word "or" is in the disjunctive, that is, the language is mutually
exclusive — one or the other. HJS Dev., Inc. v. Pierce County ex rel. Dept of Planning & Land
Servs., 148 Wn.2d 451, 473 n. 95, 61 P.3d 1141 (2003) Here, the Gleeson lot does not meet the
minimum five acre lot size, and is thus a nonconforming lot entitled to the benefit of JCC
§ 18.25.270(5)(b).
As to shoreline variance, they are needed to vary specific dimensional requirements set
forth in the JCSMP. See JCC § 18.25.580(1). Here, a variance is not required because there is
no "dimensional requirement" to vary; rather, there is application of provisions of the JCSMP
which allow a special buffer.
Thank you for your kind attention to these comments, the enclosures, and Mr. and
Mrs. Gleeson's request to meet.
Very truly yours,
DENNIS D. REYNOLDS LAW OFFICE
�� r-----
Dennis D. Reynolds
Enclosures
DDR/cr
[90370-11
GLEESON
EXHIBIT I
GLEESON.
EXHIBIT 2
598981 PGS:2 SWD
04/2912076 11:69 Rfl S74 00 FIRST AMERICAN TITLE
Jer Person County WA R"dlto, t office - Rose Rnn Carroll, Auditor
Bill ratl�Rli�� IFIA1VAYtiL'OMMONU 11111
When recorded return to:
Michael F. Gleeson
Victoria E. Gleeson
12295 1Sth Ave SW
Borten, WA 98146
Filed for Record at Request of
All About Escrow, Inc.
Escrow Number. 16-0092
Statutory Warranty Deed
THE GRANTORS Sarah F. Blossom and James K Hattrick, wife and h consideration of
TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDE � conveys and
warrants to Michael F. Gleeson and Victoria E. Gleeson, husband a d ife, llowin described real
estate, situated in the County of Jefferson, State of Washington:
Abbreviated Legal:
Lot 33 Tale Shores #1
Tax Parcel Numbel(s): 998200130
Lot 33, Tula Shores, as per plat recorded in Volume 4 of Plats, p eeords of Jefferson County,
Washington.
Situate in the County of Jefferson, State of Washing
SUBJECT TO: SEE EXCHHIIT "A" ATTACHE,?�F-TO MADE A PART HEREOF.
Dated April 1& 2016
VC, -W0
Sarah F. Blossom Jam attnc t
O
STATE OF Washin o
COUNTY OF Jefferson SS:
I certify that I kno or e i cto vidence that Sarah F. Blossom and James IC Hattrick
are the persons who aPOMO,be me, and said persons acknowledged that they
signed this instrumen dm 1 e it to be flair flee and voluntary act for the
uses and purposes I instrument,
Dazed: [ . 2 2 t. � # U.,S
• �` 1►t1IfI/q/
PNLMs41 i�1 Notary Public inand for the State of Washin ton
ory ., Q Residing at _Qd
NOTq:9i My appointment expires:OS ob ' LO4cl
B
A (C ` `:
749691 125286 *4/29/2016 3,02'9.22*
598981 Page 2 of 2 04/2912016 11:59 AM
EXHIBIT "A"
SUBJECT TO:
1. Right of the public to make rosary slopm for cuts or fills upon said premises' c original
reasonable grading of streets, avenn es,'alleys and roads, as dedicated in
2. Right of the public to drain all streets and roads, over and across any to ter
might take a naturat course after the street and roads are graded as � i Wd
3. Rights of the general. public to the unrestricted use of all the le body of water
not only for the primary purpose of navigation, but also forluding (but not
limited to) fishing, boating, bathing, swimming, water skiing o�Iate�Zre=creational
purposes, as those waters may affect the tidelands, ds leplands and whether
the level of the w'atef has been raised naturally or cialty maintained or fluctuating level,
all as f ether defined by the decisional taw of the (Aft 1 of the premises subject to such
submergence)
4. Any claim to (a) ownership of or righ
limited to ores, metals, cael, lignite; oil,
or under the sand or produced from thi
glint, exception, conveyance, rise
immunities, rights of way, and
not the interests or -rights ex
s and similar substances, including but not
r, clay, rock, sand, and gravel located in, on.
her such ownership or rights arise by lease,
herwise; and (b) any rights, privileges,
therewith or appurtenant thereto, whether or
rin the Public Records.
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GLEESON
EXHIBIT 3
Jefferson County Code 1825.270 Critical areas, shoreline buffers, and ecological protection. Page 8 of 10
common line drawn between the nearest corners of each adjacent residence (see Figure
18.25.270(1)), or (B) a common line calculated by the average of both adjacent residences'
existing setbacks (i.e., (y+z)/2=x buffer; see Figure 18.25.270(2)).
(iii) Existing Home on One Side. Where there is only one existing residence adjacent to the
proposed residence, the common line buffer shall be determined as the greater of either (A)
a common line drawn between nearest corner of the foundation for the adjacent residence
and the nearest point of the standard buffer on the adjacent vacant lot (see Figure
18.25.270(3)), or (B) a common line calculated by the average of the adjacent residence's
setback and the standard buffer for the adjacent vacant lot (i.e., (y+z)/2=x buffer; see
Figure 18.25.270(4)).
(iv) Figures 18.25.270(1) through (4) illustrate examples of the common line buffer
allowance. When discrepancy between the text and the graphic exists, the text shall govern.
Graphics are for illustration only, buffer shall be measured perpendicularly from the ordinary
high water mark as per this section.
Figures 18.25.270(1) — (4)
Figure 1&26.270(1)
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Figure 18.25.270(2)
The Jefferson County Code is current through Ordinance 6-16, passed November 3, 2016.
Jefferson County Code 18.25.270 Critical areas, shoreline buffers, and ecological protection.
II
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Figure 18.25.270(4)
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Page 9 of 10
(c) Nonconforming Lots — Development Requiring a Variance. Development on nonconforming
lots that do not meet the requirements of subsection (5)(a) or (b) of this section require a
shoreline variance.
(d) Water -Oriented Uses/Development. When otherwise consistent with this program and
Chapter 18.22 JCC, the following water -oriented uses/developments may be permitted within a
shoreline buffer without a shoreline variance. The amount and extent of buffer modification shall
The Jefferson County Code is current through Ordinance 6-16, passed November 3, 2016.
�i J SERVICES
390 JOAN ST., PORT LUDLOW. WA 9M
437 2449
INSTALLER
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802 SHERIDAN AVENU � I/
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TYPE OF No. OF
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BASEMENT C
SOIL TYPE DESCRIPTION
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Yes No
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2)
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Source type: Drilled well
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INSTALLER'S SIGNATURE
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DATEINSTALLED
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JEFFERSON
COUNTY HEALTH DEPARTMENT Permit #II'1
�F INDIVIDUAL SEWAGE DISPOSAL INSPECTION FORM Date
APPROVED YES NO
ENVIRONMENTALIST i_, ,At, A* nS
Address l cam` C, S
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Date Logged:
Include soil textural characteristics and the depths at which significant
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layers occur.
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HEALTH Dtri
USEFUL ABBREVIATIONS FOR SOIL CLASSIFICATION
DK. - DARK
BR. - BROWN
TN. - TAN
OR. - ORANGE
GRY. - GRAY
YL. - YELLOW
BL. - BLUE
SND. - SAND
LS. - LOAMY SAND
SL. - SANDY LOAM
SIL. - SILT LOAM
SCL. - SANDY CLAY LOAM
SICL. - SILTY CLAY LOAM
CL. - CLAY LOAM
C. - CLAY
FN. - FINE
MED. - MEDIUM
CRS. - COARSE
GRV. - GRAVELLY
COB. - COBBLY
RK. - ROCKY
CPT'D. - COMPACTED
CMT'D. - CEMENTED
V . - VERY
X. - EXTREMELY
MOT. - RT. - ROOT DEPTH
MOTTLES
FNT. -
FAINTLY
DIST.
- DISTINCTLY
PROM.
- PROMINATELY
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BEFORE THE JEFFERSON COUNTY
OFFICE OF THE HEARING EXAMINER
MICHAEL and VICTORIA GLEESON,
Appellants, No. MLA17-00057
V.
JEFFERSON COUNTY, acting through its
Department of Planning and Community
Development,
APPELLANTS' HEARING BRIEF
I. INTRODUCTION/SUMMARY OF ARGUMENT
A Code Interpretation obligates the County to consider all options, not just those
which are framed as "no." Here, the County ignored the questions which clearly require a
"yes" answer.
Michael and Victoria Gleeson ("Gleeson" or "Appellants") have a modest request that
Jefferson County (the "County") cannot see fit to allow: they wish to be able to situate a home
on their waterfront parcel consistent with the setbacks allowed for their surrounding
neighbors, as approved in the 1962 plat creating their lot, and in accordance with the non-
conforming lot standards in the Code. To them, this means an approximate set back of 50 feet
from the top of the bluff. The County's decision would force the home an additional
approximately 160 feet setback from the bluff for a lot that is only 242 feet long from the top
HEARING BRIEF OF APPELLANTS - 1 of 19 200 WiNisnslow
sl w Way DS LAW OFFICE
200 Winslow Way West, Suite 380
(90381-11 Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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of bank, making use of an approved septic system problematic. If allowed to stand, this will
deprive the Gleesons of vested property rights in a historic plat approval and the septic permit
issued by the county. The permit is a property right under the law. and it is further contrary to
common setback provisions in the Jefferson County Code ("JCC").
The proposed home would be in approximate line with other homes in the
neighborhood, and more importantly, with both the homes on either side of the Gleeson lot.
The common boundary line between the two existing homes from the top of the bank is 50'
and 56' feet, respectively. All existing homes in the plat have on average about a 100
setback, measured from the top of the slope. The average is inflated by a few lots. Most of
the lost are well below 100 feet.
The proposed residence is within 300 feet of a residence constructed prior to adoption
of the SMP which is already encroaching on the standard buffer.I
In July 2017, the Gleesons requested an Official Unified Development Code
Interpretation ("Code Interpretation) concerning their residential waterfront property located
at 234 Tala Shores Drive, in the City of Port Ludlow. The Gleesons own Lot 33 of the Plat of
Tala Shores, which is approximately 'V2 acre in size, with dimensions of 75 feet wide and 242-
feet long. The lot is nonconforming under existing zoning and has a Shoreline designation of
Shoreline Residential ("SR") and zoning of one dwelling unit per five acres ("RR-5").
Before investing in the permitting and planning for a home on the undeveloped lot, the
Gleesons requested clarification on the appropriate interpretation of County shoreline
use/zoning regulations as to buffers and setbacks, and lot density, as well as recognition of
setbacks established by the Tala Shores Plat approved by the County in September 1962. The
HEARING BRIEF OF APPELLANTS - 2 of 19
(90381-11
DENNIs D. REYNOLDs LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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Gleesons requested that the County interpret and apply the new shoreline regulations
consistently with pre-existing rights established by the plat and existing permits and, in the
alternative, via non -conforming lot regulations with respect to shoreline buffers. They
requested to be able to enjoy the same benefit as their neighbors with respect to situating their
home with a 50-foot setback from the bluff or those receiving historic septic approvals.
On the last point, the County was required to consider, among other things, the
Gleesons' existing permit rights granted to their predecessors -in -interest in 1993 when the
County approved a septic permit and the system was installed. See Appendix A-1. The
permit approval is for a system located approximately 132 feet from the top of the bluff and
100 feet from an existing water well on the property. It was based on plans for a 50-foot wide
home with a 4-foot wrap around deck on the front and side, with a 50 foot setback to line up
with adjacent homes.
This prior permit approval is an protected property right that cannot be taken away by
the County; it is vested against future regulatory changes. Nieshe v. Concrete Sch. Dist., 129
Wn.App. 632, 641-42, 127 P.3d 713 (2005) ("A protected property interest exists if there is a
legitimate claim of entitlement to a specific benefit.") (quoting Goodisman v. Lytle, 724 F.2d
818, 820 (9th Cir. 1984)) (internal quotation marks omitted). Morover, it constitutes a
nonconforming use that the County failed to consider. JCC 18.25.660(1)(a). The septic
system has been installed on the property by the Gleesons. They can only build a residence
with respect to the terms of the prior permit approval. Again, in this regard, the County's
response to the request for Code Interpretation was to look for all the reasons that the
Gleesons cannot construct a home in the proposed location, while ignoring all the reasons that
I The home to the south of the Gleeson lot is about six feet from the mutual property line; the home to the north
is about fifteen feet from the mutual property line.
HEARING BRIEF OF APPELLANTS - 3 of 19 DENNIS D. REYNOLDs LAW OFFICE
[90381-1] 200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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it must interpret and administer the code to allow a home with an approximate 50-foot
setback.
The septic system constitutes an "existing use" under JCC 18.25.100(5)(n), "Existing
use" means the use of a lot or structure or improvements at the time of the enactment of this
code, unless otherwise specified." And, as a result, the subject property is a "developed
shoreline," under JCC 18.25.00(4)(h), ""Developed shorelines" means those shoreline areas
that are characterized by existing uses or structures located within shoreline jurisdiction."
The County defines septic permits as "project permits" in JCC 18.40.040(1). As a
nonconforming use under JCC 18.25.660(1)(a), the County must allow the continuation of the
legally established septic system on the Gleesons' lot and the disclosed future development of
a private home with the 50-foot setback provided.
The County decision challenged herein would require an unsupported 150-foot "no
build" setback or buffer from the ordinary high-water mark plus a 10-foot construction
setback. This flies in the face of the non -conforming development regulations and shoreline
regulations that direct the County to" recognize and apply a buffer established by an existing
plat." JCC 18.25.270(1)(c); JCC 18.25.270(4)(f). The decision also is in error with respect to
the definition of a nonconforming lot in JCC 18.25.100(14)(h). A lot is nonconforming if it
either is: (1) not possible to construct a structure outside of landward of the shoreline buffer,
or (2) does not otherwise meet the minimum lot size requirements. JCC 18.25.100(14)(h).2
The County decided that the lot is not non -conforming because there is a "building pad"
available landward of the standard buffer.
2 With respect to a nonconforming lot, the existence of either circumstance — not both — supports a determination
that the lot is nonconforming.
DENNIS D. REYNOLDS LAW OFFICE
HEARING BRIEF OF APPELLANTS - 4 of 19 200 Winslow Way West, Suite 380
[90381-1] Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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The County also ignored the fact that the Gleesons' lot does not meet the minimum lot
size requirement, and explained that circumstance away by alleging that "residential density"
is not at issue and that there is not any minimum lot size requirement in the SMP. In this
regard the County on one hand impermissibly interpreted JCC 18.25.100(14)(h) to require a
showing of both factors, and — on the other hand, impermissibly read out the definition of
nonconforming lot as one that does not meet the minimum lot size requirements. These are
found in the zoning code, JCC 18.25.500(1)(b), which requires consistency with, among other
things, "zoning restrictions."
The County's claim that "residential density" is not an issue runs counter to other
provisions in the Code. With a showing of a nonconforming lot, as here, the Gleesons are
entitled to rely on the common setback provisions for a nonconforming lot in JCC
18.25.270(5)(b), which would allow the proposed Gleeson home to be constructed closer to
the shoreline. The County has taken that right away from them, without factual or legal basis.
The Gleesons request that the Hearing Examiner reverse the Administrative Decision
and rule that, under existing law and the facts presented, the Gleesons are not bound by a 150-
foot shoreline buffer setback. Such ruling is required to protect the Gleesons' vested private
property rights, as well as non -conforming lot common setback protections and the non-
conforming structures rules, among others..
II. SPECIFIC CHALLENGES TO DECISION
The County's Code Interpretation is based on errors of fact and law as follows, and as
explained in more detail in the argument section, infra:
A. The County erred in ignoring the property rights and related non -conforming
development regulations as to the septic approval.
HEARING BRIEF OF APPELLANTS - 5 of 19 DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
[90381-11 Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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B. The County erred in ruling that the County's shoreline use regulations that
protect vested rights concerning buffers established by an existing plat, JCC
18.25.270(1)(c) and JCC 18.25.270(4)(f) are inapplicable to the Gleesons' lot
under the facts presented to it.
C. The County erred in ruling that the common setback provisions for a non-
conforming lot in JCC 18.25.270(5)(b) do not apply.
D. The County erred in ruling that the Gleesons' lot is not nonconforming under
the definition set forth in JCC 18.25.100(14)(h), by failing to recognize that the
lot does not meet minimum lot sizes set forth in the Zoning Code, which ties
into the SMP.
III. ARGUMENT
The JCSMP is to be liberally construed to effectuate its purpose, but one of the
purposes is to protect private property rights. JCC 18.25.080; JCC 18.25.030(4). The Code is
heavy on use regulations, but that does not change the SMA policy of balance. Single-family
homes are a preferred use under the Shoreline Management Act and JCSMP. Thus,
interpretation of these laws must be sensitive to the right to use and development of shoreline
property for residential use. A "light hand" approach should be used, since interpretations
must not offend constitutional protections.
The suggested approach is consistent with the intent of the SMA. The SMA, passed
by the Legislature in 1971 and adopted by public initiative the following year, represents a
compromise between the interests of government, environmentalists, business interests, and
property owners. See R.L. Bush, GOVERNING PUGET SOUND (Puget Sound Books 1982).
HEARING BRIEF OF APPELLANTS - 6 of 19
[90381-11
DENNis D. REYNOLDs LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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In the wake of a legislative setback in 1970, the Washington Environmental Council
(WEC) drafted and submitted its "Shoreline Protection Act" — a stringent "environmental
proposal" — known as Initiative Measure 43 — to the Legislature. See Geoffrey Crooks, THE
WASHINGTON SHORELINE MANAGEMENT ACT OF 1971, 49 Wash. L. Rev. 423, 423-24 (1974).
The Legislature took no action on the Shoreline Protection Act. Instead, in 1971, it drafted
and enacted the SMA (also referred to as "Measure 43B") as a substitute law, then referred
both Measures for referendum in the general election in 1972.
Both Measures agreed that the law did not adequately address the use and
development of the shorelines, and agreed that it was in the State's interest to provide better
planning and coordination. However, the competing Measures diverged on how to
accomplish that general goal. Measure 43B (the SMA) stated its purpose as "planning and
fostering all reasonable and appropriate uses and to enhance the public interest," and
specifically set forth a variety of uses, including single-family homes and appurtenant
structures such as docks, to be given preference under the law. James C. Barron, SHORELINE
MANAGEMENT — WHAT ARE THE CHOICES? Wash. State Univ., Ext. Mimeograph 3524, pp.2-3
(Dec. 1971). Whereas, Measure 43 (the WEC proposal) set multiple environmental goals,
expressly prioritizing environmental protection over private property rights. Barron, supra,
at 4. Indeed, the WEC proposal would have created a "public[] right to an unpolluted and
tranquil environment." Id. at 7.
Of particular significance to the issues in this case, Measure 43B (the SMA)
recognized that shoreline regulation may not violate property rights and stated a goal of
"fostering" appropriate development and uses of the shorelines, "specifically prohibiting few
if any uses ...." Crooks, supra, at 457. To drive that point home, the Legislature amended its
proposed measure to withdraw from Ecology and local governments the right to use eminent
HEARING BRIEF OF APPELLANTS - 7 of 19 200 WiNisnslow
sl w Way DS LAW OFFICE
200 Winslow Way West, Suite 380
[90381-1] Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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domain, stating in the voters' pamphlet, "[t]here is no local or state takeover of private land."
Id. at 452 nn.170-71, 457. Indeed, the Voter Pamphlet for Measure 43B (the SMA) states:
The Act Doesn't Prohibit Development. The goals of the Act
are to coordinate land development, to encourage development
which is compatible with shoreline resources, and to discourage
development which is not.
Private Property Rights and Increased Recreational
Opportunities. Your property remains your own and private.
There is no local or state take-over of private land.
Official Voter Pamphlet, Alternative Measure 43B, p.34 (Nov.7, 1972).
Thus, commentators viewed the SMA as unlikely to generate claims of regulatory
taking because "private property ... [would] seldom be subject to restrictions which severely
diminish economic value." Crooks, supra, at 456. The commentators also pointed out that
publicly owned lands are "particularly adapted to some uses" (for example, wilderness or
conservation areas), which "would tend to destroy the economic value of privately owned
shorelines." Id.
The SMA was presented as a law that would strike a balance between property and the
environmental by recognizing the importance of protecting the shoreline environment, while
encouraging appropriate development. See Futurewise v. W. Washington Growth Mgmt.
Hearings Bd., 164 Wn.2d 242, 244, 189 P.3d 161 (2008) (The goal of the SMA is "balancing
use and protection.").
A. General Statutory Construction Principles.
In reviewing municipal ordinances, courts apply the same rules of construction that we
apply to state statutes. Sandona v. City of Cle Elum, 37 Wn.2d 831, 836-37, 226 P.2d 889
(1951). Zoning ordinances are construed as a whole and a reviewing body must reject any
DENNIS D. REYNOLDs LAW OFFICE
HEARING BRIEF OF APPELLANTS - 8 of 19 200 Winslow Way West, suite 380
[90381-1] Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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unreasonable construction. See Bartz v. Bd. of Adjustment, 80 Wn.2d 209, 218, 492 P.2d
1374 (1972). The primary purpose in interpreting a zoning ordinance is to ascertain the
legislative intent. East v. King County, 22 Wash.App. 247, 253, 589 P.2d 805 (1978). If the
language is unambiguous, courts rely solely on the statutory language. State v.
Roggenkamp, 153 Wn.2d 614, 621, 106 P.3d 196 (2005). When a statute or ordinance is
unambiguous, construction is unnecessary because the plain meaning controls. McTavish v.
City of Bellevue, 89 Wash.App. 561, 565, 949 P.2d 837 (1998).
Fundamental to statutory construction is the doctrine that "shall" is construed as
mandatory language and "may" is construed as permissive language. Rios v. Dept of Labor
& Indus., 145 Wn.2d 483, 501 n. 11, 39 P.3d 961 (2002) (construing "shall" as "mandatory
language"); Petrarca v. Halligan, 83 Wn.2d 773, 776, 522 P.2d 827 (1974) (construing "may"
as "permissive language"). Another important rule of statutory construction is that use of the
word "or" is disjunctive. See, e.g. State v. Tiffany, 44 Wash. 602, 87 P. 932 (1906); Masunaga
v. Gapasin, 52 Wash.App. 61, 757 P.2d 550 (1988); see also IA C. Sands,
Sutherland Statutory Construction S 21.14 (4th ed. 1972). The courts are obligated to interpret
a statute, if possible, so that no portion of it is superfluous. Snow's Mobile Homes, Inc. v.
Morgan, 80 Wn.2d 283, 288, 494 P.2d 216 (1972).
B. The County Denied the Gleesons' Private Property Rights by Failing to Apply
Provisions of the SMP that Exempt their Lot from Imposition of a 150-Foot
No Build Setback or Buffer and Recognizing the Property Right Inherent in
the Septic Approval.
The County would impose a 150-foot setback requirement on the Gleesons' lot, even
though their proposal is to construct a small, single-family home consistent with other homes
in the Plat, most lots of which have been developed. The Gleesons have been singled out and
denied the vested rights accorded by plat approval and development since 1962, and, further
HEARING BRIEF OF APPELLANTS - 9 of 19 200 WiNisnslow
sl w Way DS LAW OFFICE
200 Winslow Way West, Suite 380
[90381-1] Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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denied the non -conforming lot protections that allow for development within a common
setback, as explained in more detail below. This is contrary to JCC 18.25.030(4):
When regulating use and development of private property, the
county's actions must be consistent with all relevant legal
limitations including constitutional limitations. This program
must not unconstitutionally infringe on private property rights
or result in an unconstitutional taking of private property.
The County's decision denies the Gleesons protected private property rights and turns
the SMA on its head, ignoring the Act's preference for single-family homes.
In Washington State, the right to use and develop land is fundamental and protected
under both the Washington State and Federal Constitutions. As the Washington Supreme
Court has stated:
Property in a thing consists not merely in its ownership and
possession, but in the unrestricted right of use, enjoyment and
disposal. Anything which destroys any of these elements of
property, to that extent destroys property itself. The substantial
value of property lies in its use. If the right of use is denied, the
value of the property is annihilated and ownership is rendered a
barren right.
Manufactured Housing Cmtys. v. State, 142 Wn.2d 347, 364, 13 P.3d 183 (2000) (quoting
Ackerman v. Port of Seattle, 55 Wn.2d 400, 409, 348 P.2d 664 (1960).3
Additionally, the Washington Supreme Court has long -recognized that, "[a]lthough
less than a fee interest, development rights are beyond question a valuable right in property."
3 The term "property" refers to the collection of protected rights inhering in an individual's relationship to his or
her land or chattels. United States v. General Motors Corp., 323 U.S. 373, 378, 65 S. Ct. 357, 89 L. Ed. 311
(1945). Among these are the rights to possess, use, exclude others, and dispose of the property. Id. In addition,
shoreline property owners hold several "`special rights' with regard to the water and foreshore." Stop the Beach
Renourishment, Inc. v. Florida Dept of Envd. Prot., 560 U.S. 702, 707-08, 130 S. Ct. 2592, 177 L. Ed. 2d 184
(2010); Joseph J. Kalo, North Carolina Oceanfront Property and Public Waters and Beaches: the Rights of
Littoral Owners in the Twenty -First Century, 83 N.C. L. Rev. 1427, 1439 (2005). These additional rights include
the right of access to the water, the right to use the water for certain purposes, the right to an unobstructed view
of the water, the right to receive accretions and relictions, and the right to defend one's property against the
elements. See, e.g., Stop the Beach Renourishment, 560 U.S. at 708; Cubbins v. Mississippi River Commission,
241 U.S. 351, 363-64 (1916).
HEARING BRIEF OF APPELLANTS - 10 of 19 200 WiNisnslow
sl w Way DS LAW OFFICE
200 Winslow Way West, Suite 380
[9038I-1] Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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West Main Assoc. v. Bellevue, 106 Wn.2d 47, 50, 720 P.2d 782 (1986). "Despite the
expanding power over land use exerted by all levels of government, `[t]he basic rule in land
use law is still that, absent more, an individual should be able to utilize his own land as he
sees fit."' Id. (citing Norco Constr., Inc. v. King County, 97 Wn.2d 680, 684, 649 P.2d 103
(1982)). Property rights are not "poor relations" of other Bill of Rights guarantees. See
Dolan v. Tigard, 512 U.S. 374, 392 (1992).
The Shoreline Management Act (SMA), Ch. 90.58 RCW, is a carefully crafted law,
designed to allow preferred single-family development and use of shoreline properties, e.g
owner occupied single-family homes, so long as adverse environmental impacts are
minimized. RCW 90.58.020 ("It is the policy of the state to provide for the management of
the shorelines of the state by planning for and fostering all reasonable and appropriate uses.").
In enacting the SMA, the Legislature recognized "that there will, of necessity, be some future
and additional development along shorelines." State Dept of Ecology v. Ballard Elks Lodge
No. 827, 84 Wn.2d 551, 557, 527 P.2d 1121 (1974). Rather than prohibiting further
development, the Legislature chose instead to encourage preferred uses while "stressing the
need that such future development be carefully planned, managed, and coordinated in keeping
with the public interest." Id.
The Legislature's intent is plain and unequivocal. The SMA states that "[i]t is the
policy of the state to provide for the management of the shorelines of the state by planning
for and fostering all reasonable and appropriate uses." RCW 90.58.020 ("Legislative
findings —State policy enunciated —Use preference"). Reading further, the provision explains
that "coordinated planning is necessary in order to protect the public interest associated with
the shorelines of the state while, at the same time, recognizing and protecting private
property rights consistent with the public interest." Id. The balance envisioned by the SMA
DENNIs D. REYNOLDs LAW OFFICE
HEARING BRIEF OF APPELLANTS - 11 of 19 200 Winslow Way West, Suite 380
(90381-1] Bainbridge Island, WA 98110
(206) 780-6777
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anticipates that there will be some impact to shoreline areas by development or continued use,
repair and maintenance of existing structures or developments: "[a]lterations of the natural
conditions of the shorelines and shorelands shall be recognized by the department." RCW
90.58.020 (Emphasis supplied.) Single-family homes are expressly recognized as a priority
use of the shorelines, which falls within allowed alterations of the shorelines. RCW
90.58.020.
Our Supreme Court has repeatedly recognized the SMA policy of balancing property
rights and the environment:
The SMA embodies a legislatively -determined and voter -
approved balance between protection of state shorelines and
development. The state has developed shorelines through
improvement of parks and ramps, construction of bulkheads,
ferry docks, etc. As part of our careful management of
shorelines, property owners are also allowed to construct water -
dependent facilities such as single-family residences, bulkheads,
and docks.
Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 697, 169 P.3d 14 (2007) (J.M.
Johnson, J., lead opinion); Biggers, 162 Wn.2d at 702 (Chambers, J., concurring); accord
Futurewise v. W. Wash. Growth Mgmt. Hearings Bd., 164 Wn.2d 242, 243 (2008) (J.M.
Johnson, J., lead opinion) ("The SMA meant to strike a balance among private ownership,
public access, and public protection of the State's shorelines."); Overlake Fund v. Shoreline
Hearings Board, 90 Wn. App. 746, 761 (1998) (The purpose of the SMA "is to allow careful
development of shorelines by balancing public access, preservation of shoreline habitat and
private property rights through coordinated planning ..."); State, Dept of Ecology v. City of
Spokane Valley, 167 Wn. App. 952, 963, 275 P.3d 367 (2012) (noting that protecting private
property is an express policy of the SMA).
HEARING BRIEF OF APPELLANTS - 12 of 19 200 WiN isnslow
sl w Way DS t, S OFFICE
200 Winslow Way West, Suite 380
[90381-11 Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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C. The County Must Recognize and Apply a Buffer Established by an Existing
Plat and the Septic Permit with Respect to the Gleesons' Lot.
In its Administrative Decision, the County recognized that JCC 18.25.270(1)(c) and
JCC 18.25.270(4)(f) require it to "recognize and apply a buffer established by an existing
plat." Decision at p. 3. This requirement protects rights that have vested and thus cannot be
taken away by subsequently enacted regulations. See RCW 58.17.033(1) (subdivision vested
rights statute); Noble Manor Co. v. Pierce County, 133 Wn.2d 269, 943 P.2d 1378 (1997)
(vested rights include both the right to divide and the right to develop the land under
regulations existing on the date of the application). Decisions approving a plat or any
other land use application cannot be collaterally attacked if not appealed within the statutorily
required deadline. See, e.g., Chelan County v. Nykreim, 146 Wn.2d 904, 52 P.3d 1 (2002);
Wenatchee Sportsmen Association v. Chelan County, 141 Wn.2d 169, 175, 4 P.3d 123 (2000);
see also Skamania County v. Columbia River Gorge Comm'n, 144 Wn.2d 30, 49, 26 P.3d 241
(2001); Deschenes v. King County, 83 Wn.2d 714, 716, 521 P.2d 1181 (1974); Westside
Business Park v. Pierce County, 100 Wn. App. 599 (2000); Habitat Watch v. Skagit County,
155 Wash.2d 397, 405-06, 120 P.3d 56 (2005).
The Gleesons' property is Lot 33 of the Plat of Tala Shores, approved on September 7,
1962. The plat has been built out such that almost homes have the same approximate setback
from the bluff, dependent upon topography. The Administrative Decision recognizes the fact
that "existing homes in the 1962 Plat of Tala Shores have generally been constructed at a
lesser shoreline setback than the currently required 150-foot buffer." Decision at p. 3. But the
County determined that there is no evidence the plat had a specific buffer or setback
established, thus, that it is not required to "recognize" the built condition to allow the
Gleesons the benefit of the rights that have vested over the years. Id. These rights have been
enjoyed by all other owners of developed lots in the plat.
HEARING BRIEF OF APPELLANTS - 13 of 19 DENNIS D. REYNOLDS LAW OFFICE
[90381-11 200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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As set forth above, the County's decision denies the Gleesons their vested rights to
develop the lot consistent with the approval of the Plat in 1962 and consistent with the
development of surrounding property owners and all other lots in the Plat, nearly all of which
are developed and consistent with the septic approval. The County's decision impermissibly
constitutes a collateral attack on its previous decisions approving residential home
development well less than 160 feet from the top of the slop and denies the same development
rights to the Gleesons as a Plat lot owner. The Administrative Decision is procedurally
flawed, ignores substantial evidence in the record and erroneously fails to apply the facts to
the law.
D. In the Alternative, the County Must Apply the Common Setback Provisions
for the Gleesons' Non -Conforming Lot.
The Administrative Decision includes an erroneous determination on non -conforming
lot status, on which its decision denying the Gleesons' the common setback provisions for a
non -conforming lot in JCC 18.25.270(5)(b). Common setback provisions apply to
nonconforming lots, like the Gleesons' when an adjacent shoreline parcel is already
developed. JCC 18.25.270(5)(b). Here, neighbors on both sides of the Gleesons' lots have
built homes within 50-60 feet of the bluff.
In order to maintain views that are comparable for residences, a special buffer for a
new single-family residence is established if: (a) the proposed residence is within 300 feet of a
residence constructed prior to the adoption of the SMP, which is already encroaching on the
buffer; or (b) when there are houses on both sides of the build site, the imaginary line between
the nearest corners of the existing buildings, or the average distance of the setbacks of the
existing buildings, whichever calculation is larger. JCC 18.25.270(5)(b)(i), (ii). In general,
the Director "may" reduce the standard buffer for a new single-family home on a
DENNIS D. REYNOLDS LAW OFFICE
HEARING BRIEF OF APPELLANTS - 14 of 19 200 Winslow Way West, suite 380
[90381-1] Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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nonconforming lot. JCC 18.25.270(5)(b). However, when there are existing homes on both
sides of a non -conforming lot, there is no discretion for the Director — he or she "shall"
determine the buffer as "the greater of either (A) a common line drawn between the nearest
corners of each adjacent residence (see Figure 18.25.270(1)), or (B) a common line calculated
by the average of both adjacent residences' existing setbacks (i.e., (y+z)/2=x buffer; see
Figure 18.25.270(2)." JCC 18.25.270(5)(b)(ii).
With respect to the question of whether the Gleesons' lot is nonconforming, the
Administrative Decision misapplies the law and ignores essential facts. The definition of a
"nonconforming lot" is set forth in JCC 18.25.100(14)(h):
"Nonconforming lot" means a legal lot of record in existence
prior to the effective date of this program and any amendments
thereto, on which it is not possible to construct a structure
outside of/landward of the shoreline buffer or which does not
otherwise meet the minimum lot size requirements as set forth
in this program. Depth of lot is measured as the distance from
ordinary high water mark to the inside edge of the frontage
setback.
JCC 18.25.100(14)(h) (emphasis added). The Administrative Decision focuses on the
first factor that may be used to define a nonconforming lot, and downplays/ignores the second
factor. Decision at p. 4. Use of the word "or" is in the disjunctive under the law — that is, the
language is mutually exclusive, one or the other. HJS Dev., Inc. v. Pierce County ex rel.
Dept. of Planning and Land Servs., 148 Wn.2d 451, 473 n. 95, 61 P.3d 1141 (2003). There is
no dispute that the Gleeson lot does not meet the minimum five acre lot size. Thus, it meets
the second factor in defining a nonconforming lot. No further analysis or inquiry is needed.
The County's decision impermissibly requires satisfaction of both factors, which
would be an "and" requirement. It apparently determines that because a "building pad" is
available landward of the "standard buffer" the lot is not nonconforming. Decision p. 4. This
HEARING BRIEF OF APPELLANTS - 15 of 19 200 WiNisnslow
sl w Way DS LAW OFFICE
200 Winslow Way West, Suite 380
[90381-1] Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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illegally ignores the alternative language that a lot also is nonconforming if it does not meet
minimum lot size requirements.
The County then "covered its back," with a strained analysis that the Gleesons' lot
does not fail to meet the minimum lot size requirements, arguing that the SMP does not set
forth minimum lot sizes. It relies on JCC 18.25.500(l)(d), which provides that new residential
development "should be limited to densities that are consistent with the Jefferson County
Comprehensive Plan goals and policies, zoning restrictions and this program." Decision p. 4.
The County explained that this "policy" addresses residential densities within the shoreline
jurisdiction and states that it is not at issue because "the parcel is already established and it is
assumed that one single-family residence will be constructed in accordance with the rural
zoning designation." Id. It erroneously stated that the issue is the location of the proposed
residence on the parcel, rather than the residential density. Id.
But this begs the question. Location of the proposed residence on the parcel is directly
tied to whether or not a lot is non -conforming, as per the common setback requirements in
JCC 18.25.270(5)(b). The County's reasoning is circular and nonsensical. Its determination
that the Gleesons' lot is not nonconforming is unsupported by facts or law.
Moreover, JCC 18.25.500(1)(d) is the tie-in between the zoning code and the SMP.
Use of the word "should" means that "the particular action is preferred." JCC
18.25.100(19)(z) (citing WAC 173-26-020 (32)). The County has read out of the definition of
"nonconforming lot" the circumstances in which a lot does not meet minimum lot size
requirements, plain and simple. This is clear error of law and fails to properly apply the facts
to the law.
E. The County Cannot Undermine the Terms of Approved Septic Permit and
Septic System Installed by the Gleesons' Predecessor.
HEARING BRIEF OF APPELLANTS - 16 of 19 200 WiNISnslow
sl w Way DS LAW OFFICE
200 Winslow Way West, Suite 380
(90381-1) Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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The Gleesons' lot constitutes a "developed shoreline" with an "existing use" as
defined in JCC 18.25.100(4)(h) and JCC 18.25.100(5)(n). A septic permit is a "project
permit" under JCC 18.40.040(1). It is a protected private property right. See Nieshe v.
Concrete Sch. Dist., 129 Wn.App. 632, 641-42, 127 P.3d 713 (2005) ("A protected property
interest exists if there is a legitimate claim of entitlement to a specific benefit."). The doctrine
of finality prevents the County from taking away that which it originally authorized. See, e.g.,
Wenatchee Sportsmen Assn v. Chelan County, 141 Wn.2d 169, 182, 4 P.3d 123 (2000);
Habitat Watch v. Skagit County, 155 Wn.2d 397, 410-11, 120 P.3d 56 (2005) (holding that
previously unchallenged final land use decisions cannot be collaterally attacked). It is an
error of law for the County to fail to apply this doctrine.
Moreover, the Gleesons' septic use is nonconforming, such that it was legally
established at the time it was approved and constructed. Under JCC 18.25.660(1)(a), the
County must allow the use to continue. The home can only be constructed in relation to the
existing system. The County should have considered the terms of the septic permit and the
constructed system in its determination of whether the proposed house can be sited
consistently with other homes in the Plat and, in particular, with respect to the immediately
adjoining homes on both sides.
IV. CONCLUSION
For the reasons stated, Mr. and Ms. Gleeson's appeal should be granted.
HEARING BRIEF OF APPELLANTS - 17 of 19
[90381-11
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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DATED this 23rd day of October, 2017.
DENNIS D. RE LDS LAW OFFICE
By
Dennis D. Reynolds, SBA 404762
Attorneys for Appellants Michael and victoria
Gleeson
HEARING BRIEF OF APPELLANTS - 18 of 19
(90381-11
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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CERTIFICATE OF SERVICE
I, the undersigned, hereby certify under penalty of perjury under the laws of the State
of Washington, that I am now, and have at all times material hereto been, a resident of the
State of Washington, over the age of 18 years, not a party to, nor interested in, the above -
entitled action, and competent to be a witness herein.
I caused a true and correct copy of the foregoing pleading to be served this date, in the
manner indicated, to the parties listed below:
David Greetham ❑ Legal Messenger
Planning Manager ❑ Hand Delivered
Jefferson County Department of Community Development ❑ Facsimile
621 Sheridan St., Port Townsend, WA 93868 ❑ First Class Mail
(360) 379-4488 / dgreetharnkeoJefferson.wa.us ❑ Express Mail, Next Day
Q Email Only*
Michael Haas, Prosecuting Attorney ❑ Legal Messenger
Phillip Hunsucker, Deputy Prosecuting Attorney ❑ Hand Delivered
Jefferson County Prosecuting Attorney's Office ❑ Facsimile
P.O. Box 1220 ❑ First Class Mail
Port Townsend, WA 98368 ❑ Express Mail, Next Day
Q Email: PHunsucker@co.iefferson.wa.us Email Only*efferson.wa.us /
mhaas@co.jefferson.wa.us
Jefferson County Attorney
DATED at Bainbridge Island, Washington, this 23`d day of October, 2017.
�.-" /-A,-
Jo renner, Paralegal
HEARING BRIEF OF APPELLANTS - 19 of 19
[90381-11
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
Gleeson — Appellant's Hearing Brief
Appendix A-1
.14RTrf ILK/ T &j
13 A J SERVICES
JOAtY 8T FORT LYDLOW. WA QM
4V-2aas
INSTALLER
BUILI?ER —
THis PERmrr wILL E'/.PiRE ONE YEAR FFOi+A DATE ISSUED. APPLiCATlON DEC
FOR RENEWAL FOR.ONEYEAR WITHIN-3G DAYS BEFORE EXPIRATION.
JEFFERSON COUNTY HEALTH DEPARTMENT
302 SHERIDAN AVEN11�
PORT TOWNSENO. WASHWI WM RECEIPT NO.
("s) 38"722
SEWAGE DISPOSAL PeRMTY �9A DATE
g1TKt Ick�Tar4 a/asso�,, ItI QK&J,y Rd
P--- Pr La at I o W
Owner ddress
Directions for locatinn site
INSTALL NEW
JEFF.
HEALTH DEP�.,
Phone
a
REPLACE SYSTEM ❑ PARTIAL REPAIR ❑ TANKIDRAINFIELD 0-
TYPE OF NO. OF SITE
BUILDING BEDROOMS BASEMENT 0-SS SIZE S,-
Previous ite evaluation by SOIL TYPE DESCRIPTION
Health Department 1)
Yes No�_
Depth to maximum seasonal
water table
Source of potable water supply
Public Private X
Source type: Drilled well-
-Dug well
Other
r EVERY APPLICANT HAS THE RIGHT OF
APPEAL AS PER JEFFERSON COUNTY
ORDINANCE 2-77.
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ANY OF OR �YL10R DISTURBANCE OF SOIL IN THE PROPOSED OR_APPROVED DRAINFIELD rr-- o
AREA MpY CREATE SITE CONDITIONS THAT ARE tKACCEPTABLE. FOR THE INSTALLATION OF A 8
SEWAGE DISPOSA4`L SYSTE144 ANY CHANGE IN BUILDING OR SEWAGE DISPOSAL PLANS tINCLUDING �
PLU'4BING STU30UT LOCATION ANDf611 LOCATION OF HOUSE OR DRAINFIELD iWALIDATES THIS ('Nj
PERMIT UNLESS PRIOR APPROVAL IS OBTAINED FROM THE HEALTH DEPARTMENT. (Call Health Dept.
for final inspection). STUB OUT PLL111BING ABOVE FOLMATION FOOTING, p
Drainfield Length_Zpff�Trench width j6't'Tyench depthgj2��No.lines�_Tank size
Soil type and application rate used for design GPD/ft2 — e,2-- O
COMMENTS: A
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4AROVED DATE INSPECTED 'KARf IA IN L DATE
I certify that this system was installed in a manger approved by the Health De ment �, r-
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INSTALLER'S SIGNATURE DATE DATE INSTALLED
e
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APPROM YES
Address l a� C- S VQ Q Owner
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Legal Descriptions Q a "T aj-, N r6;
Residence X Commercial # of Bedrooms 3 System Installer BUJ C
System Designer
SEPTIC TANK
Commercial x Non commercial Measurements: L W WD
Construction Material ��� tiS2�D Lig• Cap-
DISPOSAL FIELD
Exc. Depth ate\ Width Total Length Sq. Ft.
Rock Type Depth Under Over
Engineer Design Yes Type EnXineer Approval Letter Yes
Well 50 feet from tank 100 feet from leach field � S
Well installed at time of septic system inspection Yes is No Public Water
Comments:� t `T er F�1 (-I L _ v. `,
JEFFERSON COUNTY HEALTH DEPARTMENT Permit #���
INDIVIDUAL SEWAGE DISPOSAL INSPECTION FORM Date
NO EMRONMEPTALIST �, o� -AA- ,nS
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SOIL INFORMATION 1
Owner:
Legal Descriptio
Section,2 ?= Tow/nshipg Range .
/-1
Subdivision �s9�L og IS
32oJOANer.,Po,
43LUDLOW,WA9
_2449
DivisionBlock ock _ Lot
Date Logged:
Include soil textural characteristics and the depths at which significant
changes occur.
Be sure to include depth where mottling or impermeable
layers occur.
Soil Log #1
Soil Log #2
to /,p in.
Qt to _ in. 0,*4,
_, to _,ja in.
_
l
% AW �,�, _ to in.
0_ to _6�_E in.
i 0 to Jam_ in.
to in.
to in.
Anticipated water
table in. Anticipated water table in.
�r f/
Roots to
inches Roots to _S"� inches
6
Soil Log #3
_L to /in.
_ to in.
} to in.
Anticipated water table in.
Rooks to �� inches
Soil Log #5
to in.
to in.
to in.
to in.
Anticipated water table_
Roots to inches
in.
Soil Log #4
_ to /O zf i n . _e, �� �► • / rl
_ to Ise —/in. 9
_ to
to in.
Anticipated water table in.
Roots to 15g d< inches
Soil Log #6
to in.
to in.
to in.
to in.
Anticipated water table eft
Roots to inches
JAN 0 3'9Q,
JEFF, L. -
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Dennis D. Reynolds Law Office
200 Winslow Way W. Suite 380 Bainbridge Island, WA 98110
Land Use • Fisheries Law • Environmental Law • Business Law • Indian Law • Real Estate
206.780.6777 206.780.6865 fax ww.ddrlaw.com
JUG
Cps jv
July 24, 2017
By email (dgreetham(i ,co.Lefferson.wa.us) and United States Mail
David Greetham
Planning Manager
Jefferson County Department of Community Development
621 Sheridan St.
Port Townsend, WA 98368
Re: Gleeson —Official Code Interpretation Request
Dear Mr. Greetham:
Pursuant to the Unified Development Code, Jefferson County Code Section 18.40 please
treat this letter as a request for an Official Code interpretation. The request in made on behalf of
Michael and Victoria Gleeson. The property address is 234 Tala Shores Drive, Port Ludlow,
Washington 98365, Lot 33 of the Plat of Tala Shores, Jefferson County Parcel No. 998200130.
Proposed Interpretation.
(1) Interpret the Jefferson County shoreline use regulations as to buffers and setbacks,
including allowed deviations for the standard 150-feet buffer, as "trumping" other
provisions of the Uniform Development Code, e,g., the Critical Areas Ordinance. See
JCC § 18.25.270(4)(a)(b) provisions.
(2) Under the circumstances, recognize the setback established by a prior plat approval as
falling within shoreline policies, JCC§ 18.25.070(1)(c) ("The County should
recognize and honor buffers and setbacks established by existing plat...." and
requirements, JCC § 18.25.270(4)(f) (The County shall recognize and apply a buffer
established by an existing plat....). The requested interpretation would be such that
that the setback established by approval of a plat is controlling and considered vested
against the new shoreline regulations found in JCC Chapter 18.25.
(3) Alternatively, determine that the Gleeson parcel is a non- conforming lot as defined
by JCC§ 18.25.100 (14) (h).
(4) Alternatively, determine that the common setback provisions for a non -conforming
lot, JCC § 18.25.270(5)(b) apply, such to allow the proposed Gleeson home to be
constructed closer to the shoreline.
LOG ITEM # 001
190381-11 PAGE 1 of 16
July 24, 2017
Page 2
Applicable Facts.
The Gleeson lot is approximately one-half acre. It is waterfront. The Gleeson's desire to
construct a modest single-family home on the lot approximately 50 feet from the top of the bank -
water line. Presumably, the ordinary highwater mark would be at the toe of the slope, if not
further down the beach. The parcel is zoned Rural Residential-5 — one (1) dwelling unit per five
acres ("RR-5"). The Shoreline environmental designation is Shoreline Residential ("SR"). The
lot is nonconforming as to its size under applicable zoning
The parcel is 75 feet wide and 242 feet long. The prior owners contemplated building a
residence with a 50-foot setback from the bluff, which was the appropriate setback at the time.
The proposed home would be about 50-feet wide. A four (4) foot deck would be on one side of
the home.
The prior owners applied for a three -bedroom septic permit in April 1990 signed off by
the Jefferson County Health Department in January 1993. From the enclosed drawing, Exhibit
1, it appears that the septic system is located approximately 132 feet from the bluff and
approximately 100 feet from an existing water well on the property. The prior residence was not
constructed.
The Gleeson property is part of the Plat of Tala Shores approved on September 7, 1962.
See Exhibit 2. The plat has been built out such that all the homes have the same approximate
setback from the bluff.
There are existing homes on each side of the Gleeson parcel. These homes sit
approximately 60 feet from their respective bluff tops, but that needs to be precisely confirmed
prior to building permit submittal. The home to the south is about six feet from the mutual
property line; the home to the north is about fifteen feet from the mutual property line. There is
thus no problem meeting the 300-foot requirement.
Specification of Code to be Interpreted.
Uniform Development Code, Chapter18.25, Shoreline Master Program, JCC
§ 18.25.270(4)(a)(b); JCC§ 18.25.070(1)(c); JCC § 18.25.270(4)(f); JCC§ 18.25.100 (14) (h) and
JCC § 18.25.270(5)(b).
Necessity of Interpretation.
The JCSMP affects a significant number of shoreline property owners, many who own
undeveloped lots. The current shoreline regulations are relatively new, and there is little current
experience applying the new regulations to guide applicants, staff or property owners.
The public would benefit from a Code interpretation as to how to apply the shoreline
buffers. Jefferson County plans under the Growth Management Act, RCW 36.70A. One GMA
LOG ITEM # 001
[90381-11 PAGE 2 of 16
July 24, 2017
Page 3
policy is to ensure predictability and fairness in the permitting process. See RCW
36.70A.020(5). The requested interpretation would implement this policy.
Reasons and Justification for Requested Interpretation.
The proposed residence is within 300 feet of a residence constructed prior to adoption of
the JCSMP which is already encroaching on the standard buffer. Under JCC
§ 18.25.270(5)(b)(i), (ii) the Director "may reduce the standard buffer for a new single-
family...". Actually, the Director is required to do so. See JCC § 18.25.270(5)(b)(ii) (for
"existing homes on both sides" of non -conforming lots "...the buffer shall be determined as...
(Emphasis supplied). Then see Figures 18.25.270(1); (2); and (3), attached (Exhibit 3).
How to deal with a non -conforming lot under the Zoning Code is controlled by the
JCSM. JCC Section 18.25.500(1)(d) provides that new residential development "...should be
limited to densities that are consistent with the Jefferson County Comprehensive Plan goals and
policies, zoning restriction, and this program." Thus, there is the tie-in between the Zoning Code
and the SMP.
The SMP states the word "should" means that "...the particular action is preferred..."
Property rights must be factored in. Single-family homes are a preferred use under the
Shoreline Management Act and JCSMP. Thus, interpretation of these laws must be sensitive to
the right to use and develop shoreline property for residential use, a "light hand" approach, since
interpretations must not offend constitutional protections.
On the last point, in Washington state, the right to use and develop land is fundamental
and protected under both the Washington State and Federal Constitutions. As the Washington,
Supreme Court has stated:
Property in a thing consists not merely in its ownership and
possession, but in the unrestricted right of use, enjoyment and
disposal. Anything which destroys any of these elements of
property, to that extent destroys property itself. The substantial
value of property lies in its use. If the right of use be denied, the
value of the property is annihilated and ownership is rendered a
barren right.
Manufactured Housing Cmtys. v. State, 142 Wn.2d 347, 364, 13 P.3d 183 (2000) (quoting
Ackerman v. Port of Seattle, 55 Wn.2d 400, 409, 348 P.2d 664 (1960) (emphasis added).
Additionally, the Washington Supreme Court has long -recognized that "[a]lthough less
than a fee interest, development rights are beyond question a valuable right in property." West
Main Associates v. Bellevue, 106 Wn.2d 47, 50, 720 P.2d 782, (1986). "Despite the expanding
power over land use exerted by all levels of government, `[t]he basic rule in land use law is still
LOG ITEM # 001
[90381_11 PAGE 3 of 16
July 24, 2017
Page 4
that, absent more, an individual should be able to utilize his own land as he sees fit."' Id. (citing
Norco Constr., Inc. v. King County, 97 Wn.2d 680, 684, 649 P.2d 103 (1982)).
Property rights are not "poor relations" of other Bill of Rights guarantees. See Dolan v.
Tigard, 512 U.S. 374, 392 (1994).
The Shoreline Management Act (SMA) unequivocally states that coordinated planning is
necessary in order to protect the public interest associated with the shorelines of the state while,
at the same time, recognizing and protecting private property rights consistent with the
public interest. RCW 90.58.020 (emphasis supplied). The SMA also states that "the Legislature
further finds that much of the shorelines of the state and the uplands adjacent thereto are in
private ownership ...." RCW 90.58.020 (emphasis supplied).
The SMA declares that it "is the policy of the state to provide for the management of the
shorelines of the state by planning for and fostering all reasonable and appropriate uses." See
RCW 90.58.020. The policy of the SMA as set forth in RCW 90.58.020 strikes a balance
between protection of the shoreline environment and reasonable and appropriate use of the
waters of the state and their associated shoreline. See Nisqually Delta Assn v. City of DuPont,
103 Wn.2d 720, 727, 696 P.2d 1222 (1985).
The balance envisioned by the SMA anticipates that there will be some impact to
shoreline areas by development or continued use, repair and maintenance of existing structures
or developments. The SMA explicitly states "[a)lterations of the natural conditions of the
shorelines and shorelines shall be recognized by the department." RCW 90.58.020. (Emphasis
supplied.) Single-family homes are a priority use of the shorelines which falls within allowed
alterations of the shorelines.
Government cannot extinguish a right or liberty by merely enacting a law that purports to
subordinate that right or liberty. Chelan Basin Conservancy v. GBI Holding Co., No. 93381-2,
slip op. at 20 (July 6, 2017) (quoting Freedom Found. v. Gregoire, 178 Wn.2d 686, 706, 310
P.3d 252 (2013) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 L. Ed. 60 (1803)).
The $651.00 application fee is submitted with the hard copy of this letter. If you have
questions, or require clarification regarding the requested interpretation, please get back to me.
Thank you for your kind attention to these comments and enclosures
Enclosures
cc:
DDR/j b
[90381-1j
Very truly yours,
DENNIS D. REYNOLDS LAW OFFICE
Dennis D. Reynolds
LOG ITEM # 001
PAGE 4 of 16
Gleeson — Code Interpretation
Exhibit 1
LOG ITEM # 001
PAGE 5 of 16
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LOG ITEM # 001
-- —��- PAGE 6 of 16
Gleeson — Code Interpretation
Exhibit 2
LOG ITEM # 001
PAGE 7 of 16
' 598981 PGS : 2 SWD
04/2912016 11:69 AM $7a 00 FIRST Rr1ERICAN TITLE
.1.f ter son Count, WA Auditor's 0(floa -Rose 0.m Carroll, Auditor
Bill NP.M114'rW 1141rW WINEVIlilh"MO)ITAM 1I11I
When recorded return to:
Michael F. Gleason
Victoria E. Gleason
12295 l5th Ave SW
Burien, WA 98146
Filed for Record at Request of
All About Escrow, Inc
Escrow Number. 16-o092
Statutory Warranty Deed ;IlovMn
THE GRANTORS Sarah F. Blossom and James K. Hattrick, wife and h nsideration of
TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDE ONconveys and
warrants to Michael F. Gleason and Victoria E. Gleason, husband a d feescribed real
estate, situated in the County of,lefferson, State of Washington:
Abbreviated Legal:
Lot 33 Tula Shores #1
Tax Parcel Numberfs): 998200130
Lot 33, Tale Shores, as per plat recorded in Volume 4 of Pints, ecords of Jefferson County,
Washington.
Situate in the County of Jefferson, State
SUBJECT TO: SEE EXHIBIT "A" ATC
MADE A PART HEREOF.
Dated April 18, 2016
�i
Sarah F. Blossom <6=
Jam c
O `
STATE OF Washin t o
COUNTY OF Jefferson } SS:
I certify that I kno or e t vidence that Sarah F. Blossom and James K. Hattrick
are the persons who be me, and said persons acknowledged that they
signed this msttumen 1 e it to be their five and voluntary act for the
uses and purposes this instrument.
Dated:
a� trrrtfrar — —
���\S Notary Public in and for the State of Washington
Residing at pd [ T
NOTq :o7i. My appointment expires. �5 • oG • 20i ri
Ll
i��i.RwASHING�� �\
LOG ITEM # 001
749691 125286 l.4/29/2016 3,G29.22* PAGE 8 of 1 6
EXHIBIT "A"
SUBJECT TO:
598981 Page 2 of 2 04/29/2016 11:69 AM
1 • Right of the public to make necessary slopes, for cuts or tills upon said premises 'nc original
reasonable grading of streets, avennes,'alleys and roads, as dedicated in
2. Right of the public to drain all streets and roads, over and across any or to ter
might take a natural course after the sheet and roads are graded as �n d
3. Rights of the general public to the unrestricted use of all the le body of water
not only for the primary purpose of navigation, but also for luding (but not
limited to) fishing, boating, bathing, swimming, water kiing o xelated recreational
purposes, as those waters may affect the tidelands, ds Jo' g uplands and whether
the level of the water has been raised naturally or cially maintained or fluctuating level,
all as ffitther defined by the decisional law of the (AS I of the premises subject to such
submergence)
i
4. Any claim to (a) ownership of or rirninenils and similar substances, including but not
limited to ores, metals, coat, lignite, oil, ivat clay, rock, sand, and gravel located in, on.
m tti w ther such ownership or rights arise by lease,
or under the Land or produced fro
grant, exception, conveyance, rase n, o and (b) any rights, privileges,
immunities, rights of way, and therewi@t or appurtenant thereto, whether or
not the interests or rights exttz
ppear in the Public Records.
LOG ITEM # 001
PAGE 9 of 16
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Gleeson — Code Interpretation
Exhibit 3
LOG ITEM # 001
PAGE 13 of 16
Jefferson County Code 1825.270 Critical areas, shoreline buffers, and ecological protection. Page 8 of 10
common line drawn between the nearest corners of each adjacent residence (see Figure
18.25.270(1)), or (B) a common line calculated by the average of both adjacent residences'
existing setbacks (i.e., (y+z)/2=x buffer; see Figure 18.25.270(2)).
(iii) Existing Home on One Side. Where there is only one existing residence adjacent to the
proposed residence, the common line buffer shall be determined as the greater of either (A)
a common line drawn between nearest corner of the foundation for the adjacent residence
and the nearest point of the standard buffer on the adjacent vacant lot (see Figure
18.25.270(3)), or (B) a common line calculated by the average of the adjacent residence's
setback and the standard buffer for the adjacent vacant lot (i.e., (y+z)/2=x buffer; see
Figure 18.25.270(4)).
(iv) Figures 18.25.270(1) through (4) illustrate examples of the common line buffer
allowance. When discrepancy between the text and the graphic exists, the text shall govern.
Graphics are for illustration only, buffer shall be measured perpendicularly from the ordinary
high water mark as per this section.
Figures 18.25.270(1) — (4)
Figure 1&25.270(1)
I I F.n1..�.T1t..<or/umm Nnute
I I
I A�� Ilwte I
I 1 _
4-
..........
Figure 18.25.270(2)
The Jefferson County Code is current through Ordinance 6-16, passed November 3, 2016.
LOG ITEM # 001
PAGE 14 of 16
Jefferson County Code 18.25.270 Critical areas, shoreline buffers, and ecological protection. Page 9 of 10
I
I
o..........
trudnp era �.. �
1h NM IV H W.1
Figure 18.25.270(3)
I I
R..,nvn NMne I VA(AN/(nl
l I
' -f I tro.MnK �U 11W.M,
' ir.n:t :L••..• i
Figure 18.25.270(4)
I
I VN.ANILUI
f
I 8f drd&rlb•�
i
l
I
i
S+trr►w� ((. 11 N' 4r1
(c) Nonconforming Lots — Development Requiring a Variance. Development on nonconforming
lots that do not meet the requirements of subsection (5)(a) or (b) of this section require a
shoreline variance.
(d) Water -Oriented Uses/Development. When otherwise consistent with this program and
Chapter 18.22 JCC, the following water -oriented uses/developments may be permitted within a
shoreline buffer without a shoreline variance. The amount and extent of buffer modification shall
The Jefferson County Code is current through Ordinance &16, passed November 3, 2016.
LOG ITEM # 001
PAGE 15 of 16
David Greetham
From: Dennis D. Reynolds Law Office <dennis@ddrlaw.com>
Sent: Tuesday, July 25, 2017 3:21 PM
To: David Greetham
Cc: Philip Hunsucker; Jon
Subject: RE: Gleeson - Code Interpretation Request
Guys, a minor supplement: the deck would wrap around the home, in the front and part of the side. It would match up
with the adjacent homes' s front decks.
Dennis D. Reynolds Law Office
200 Winslow Way W. Suite 380
Bainbridge Island, WA 98110
www.ddrlaw.com
206.780.6777, tel / 206.780-6865, fax
206.604.5739, cell
This message and any attachments hereto are intended only for use by the addressee(s) named herein. It may contain confidential, proprietary or legally privileged
information. If the reader of this message is not the intended recipient, you are hereby notified that any copying, distribution or dissemination of this communication, and any
attachments hereto, is strictly prohibited If you have received this communication in error, please immediately notify sender and permanently delete the original message
from your computer and delete any copy or printout thereof. We reserve the right to monitor all email communications. Although we believe this email and any attachments
are virus -free, we do not guarantee that it is virus -free, and we accept no liability for any loss or damage arising from its use. Thank you for your courtesy and cooperation.
From: Jon Brenner [mailto:jon@ddrlaw.comj
Sent: Monday, July 24, 2017 4:36 PM
To: dgreetham@co.jefferson.wa.us
Cc: 'Dennis D. Reynolds Law Office' <dennis@ddrlaw.com>
Subject: Gleeson - Code Interpretation Request
Dear Mr. Greetham,
Please find attached a Code Interpretation Request for Gleeson. A hard copy will follow in US Mail.
Sincerely,
Jon Brenner
Paralegal
Dennis D. Reynolds Law Office
200 Winslow Way West, #380
Bainbridge Island, WA 98110
(206) 780-6777, tel / (206) 780-6865, fax
This message and any attachments hereto are intended only for use by the addressee(s) named herein. It may contain confidential, proprietary or legally privileged
information. If the reader of this message is not the intended recipient, you are hereby notified that any copying, distribution or dissemination of this communication, and any
attachments hereto, is strictly prohibited. If you have received this communication in error, please immediately notify sender and permanently delete the original message
from your computer and delete any copy or printout thereof We reserve the right to monitor all email communications. Although we believe this email and any attachments
are virus -free, we do not guarantee that it is virus -free, and we accept no liability for any loss or damage arising from its use. Thank you for your courtesy and cooperation
LOG ITEM # 001
PAGE 16 of 16
SON
r G JEFFERSON COUNTY
DEPARTMENT OF COMMUNITY DEVELOPMENT
9SH " O 621 Sheridan
Sret,PotTownsend,
WA 86eb:w.co.
n.wa.us/communitydevelopmen
Tel: � Email: dcd on wa.ust
SquareONE Resource Center I Building Permits & Inspections I Development Review I Long Range Planning
August 23, 2017
Dennis D. Reynolds
Dennis D. Reynolds Law Office
200 Winslow Way W., Suite 380
Bainbridge Island, WA 98110
Re: Michael and Victoria Gleeson, regarding property at 234 Tala Shores Drive, Port
Ludlow - Request for Unified Development Code Interpretation
Dear Mr. Reynolds:
On behalf of Michael and Victoria Gleeson, and with payment of the amount owed pursuant to the
County's fee Ordinance, a request has been made for a Unified Development Code ("UDC")
Interpretation as is authorized by County Code § 18.40.350. This is the County's response to that
Request for a UDC Interpretation.
Questions) posed:
Based on our prior meetings, the Gleesons wish to construct a new single-family residence on Lot 33 of
the Plat of Tala Shores, Jefferson County Parcel No. 998200130, located at 234 Tala Shores Drive, Port
Ludlow. At issue is the applicable shoreline buffer and setback under Jefferson County Code (JCC).
The specific interpretation requests before the UDC Administrator are as follows:
Interpret the Jefferson County shoreline use regulations as to buffer and setbacks, including
allowed deviations for the standard 150-foot buffer, as "trumping" other provisions of the
Uniform Development Code, e.g., the Critical Areas Ordinance.
2. Under the circumstances, recognize the setback established by a prior plat approval as falling
within shoreline policies at JCC 18.25.270(1)(c) and 18.25.270(4)(f) (The County shall
recognize and apply a buffer established by an existing plat...). The requested interpretation
would be such that the setback established by approval of a plat is controlling and considered
vested against the new shoreline regulations found in JCC Chapter 18.25.
LOG ITEM # 002
PAGE 1 of 5
3. Alternatively, determine that the Gleeson parcel is non -conforming lot as defined by JCC
18.25.100(14)(h).
4. Alternatively, determine that the common setback provisions for a non -conforming lot at JCC
18.25.270(5)(b) apply, such to allow the proposed Gleeson home to be constructed closer to the
shoreline.
Why is a Code Interpretation appropriate for the questions posed?
This Code Interpretation is appropriate in accordance with JCC 18.40.350 for the questions posed above
because such a "[UDC Code Interpretation] is intended to ... interpret proper classification of a use, or
interpret the scope or intent of the provisions of this code." The question posed by the Gleesons boils
down to "can a single-family residence be constructed approximately 50 feet from the top of bluff,
which is closer to the shoreline than the currently required 150-foot buffer plus 10-foot construction
setback?"
What sections of the current code are being interpreted?
The applicant has requested interpretation of Uniform Development Code, Chapter 18.25, Shoreline
Master Program, JCC 18.25.270(4)(a)(b); JCC 18.25.070(l)(c); JCC 18.25.270(4)(0; JCC
18.25.100(14)(h) and JCC 18.25.270(5)(b).
Summary of relevant facts
1. The Gleeson lot is a shoreline parcel, approximately one-half acre in size.
2. The parcel is zoned Rural Residential (RR-5), one dwelling unit per five acres.
3. The Shoreline environmental designation is Shoreline Residential (SR).
4. The parcel is 75 feet wide by 242 feet long.
5. The proposed residence would be about 50 feet wide with a four -foot wrap around deck on the
front and side, which would line up with the adjacent homes on either side (presumed to be
approximately 60 feet from top of bluff, but not precisely measured).
6. The prior owners applied for a septic permit in 1990, signed off by Jefferson County Health
Department in 1993. The septic system is located approximately 132 feet from the top of
bluff and 100 fee from an existing water well on the property.
7. The Gleeson property is in the Plat of Tala Shores, approved in 1962. The plat is mostly
built out, with a similar setback from all homes to the top of bluff.
LOG ITEM # 002
PAGE 2 of 5
Conclusion:
Gleeson Shoreline Buffer Inter retation
Items in bold below are listed in order of the applicant's questions posed (pp. 1-2 above).
The applicant requests that Jefferson County determine that shoreline buffers and setbacks,
including allowed deviations from the standard 150-foot buffer, "trump" other provisions of the
Uniform Development Code.
JCC 18.25.270(4)(a) and (b) provide direction as to when the Shoreline Master Program shall govern.
Specifically, subsection (a)(i) states "All provisions listed in subsections (4)(b) through (1) and (5(a)
through (d) of this section (e.g., building setback, buffers, CASPs, reasonable use, nonconforming lots,
water -oriented use/development) and provisions found in JCC 18.25.660 (i.e., nonconforming
development), shall be governed by this program and not Chapter 18.22 JCC; and... ".
Subsection (b) states "In the event development of performance standards in Chapter 18.22 JCC are
inconsistent with standards in this program, this program shall govern. "
This code interpretation relies on JCC 18.25 to govern in accordance with the above language.
The applicant requests that Jefferson County recognize the setback established by a prior plat
approval, in accordance with the policies and regulations at JCC 18.25.270(1)(c) and
18.25.270(4)(f).
Per the applicant, "the requested interpretation would be such that the setback established by the
approval of plat is controlling and is considered vested against the new shoreline regulations found in
JCC Chapter 18.25."
Subsections (1)(c) and (4)(f) direct the County to "recognize and apply a buffer or setback established
by an existing plat...". While existing homes in the 1962 Plat of Tala Shores have generally been
constructed at a lesser shoreline setback than the currently required 150-foot buffer, the applicant has not
presented evidence that the plat had a specific buffer or setback established. In lieu of such evidence, the
County finds that the 150-foot buffer and 10-foot building setback as established in the 2014 Shoreline
Master Program apply to the Gleeson parcel.
Alternatively, the applicant requests that Jefferson County determine that the Gleeson parcel is a
non -conforming lot as defined by JCC 18.25.100(14)(h).
In order to determine if the Gleeson lot is nonconforming, it is important to look at the definition at JCC
18.25.100(14)(h):
"'Nonconforming lot' means a legal lot of record in existence prior to the effective date of this program
and any amendments thereto, on which it is not possible to construct a structure outside of/landward of
the shoreline buffer or which does not otherwise meet the minimum lot size requirements as set forth in
this program. Depth of lot is measured as the distance from ordinary high water mart to the inside edge
of the frontage setback. "
3 LOG ITEM # 002
PAGE 3 of 5
Under the first section of the definition, the applicant must demonstrate that it is not possible to
construct a structure outside of/landward of the 150-foot shoreline buffer. Assuming a lot depth of 242
feet and subtracting the 10-foot setback from the shoreline buffer and a minimum 20-foot setback from
the front property line, there would be approximately 62 feet of lot depth remaining for the structure.
This applicant has not demonstrated it is not possible to construct a structure in the area outside
of/landward of the required buffer. As such, the County finds that the subject lot does not qualify as
nonconforming under the first section of the definition.
The second section of the definition applies to legal lots of record that do not "...otherwise meet the
minimum lot size requirements as set forth in this program. "
In spite of the above language, the Shoreline Master Program (JCC 18.25) does not actually set forth
minimum lot size requirements. As such, the applicant suggests that the lot size issue is appropriately
dealt with through the Zoning code, citing JCC 18.25.500(1)(d):
"New residential development should be limited to densities that are consistent with the Jefferson
County Comprehensive Plan goals and policies, zoning restrictions, and this program. The density per
acre of development should be appropriate to local natural and cultural features.
The above policy addresses residential densities within the shoreline jurisdiction, which is not at issue —
the parcel is already established and it is assumed that one single-family residence will be constructed in
accordance with the rural zoning designation. At issue is the location of the proposed residence on the
parcel rather than the residential density.
As such, the County finds that the second section of the definition addressing minimum lot size
requirements also does not apply, and the Gleeson parcel therefore does not meet the definition of
"nonconforming lot" as defined at JCC 18.25.500(1)(d).
Alternatively, the applicant requests that Jefferson County determine that the common setback
provisions for a non -conforming lot at JCC 18.25.270(5)(b) apply, such to allow the proposed
Gleeson home to be constructed closer to the shoreline.
JCC Section 18.25.270(5)(b) is titled "Nonconforming lots — Common Line Buffer", and states that
"For the purpose of accommodating shoreline views to be adequate and comparable to adjacent
residences, but not necessarily equivalent, the administrator may reduce the standard buffer for new
single-family residences on nonconforming lots consistent with the following criteria..." (Note: the full
citation includes the standard for accommodating new structures within 300 feet of adjacent residences
as cited in the applicant's letter).
Based on the finding above that the Gleeson parcel does not meet the definition of a nonconforming lot,
the County finds that the common line setback provision at JCC 18.25.270(5)(b) is not applicable.
In summary, the applicant has not demonstrated that the existing plat of Tala Shores established a
shoreline buffer or setback, or that the Gleeson parcel is a nonconforming lot under JCC 18.25. As
4 LOG ITEM # 002
PAGE 4 of 5
such, the Department finds that the currently required 150-foot marine buffer plus 10-foot
building setback applies in accordance with JCC 18.25.270(4).
Appeal rights:
The requester is hereby notified that this Code Interpretation may be APPEALED to the County's
HEARING EXAMINER by complying with the APPEAL PROCESS described in the County Code at
JCC § 18.40.390.
Please feel free to contact me at 360-379-4488 should you have any questions.
Sincerely,
David Greetham
Planning Manager
Jefferson County Department of Community Development
LOG ITEM # 002
PAGE 5 of 5
C,0N t oG DEPARTMENT OF COMMUNITY DEVELOPMENT
W2� 621 ShUridan Stccct, Port Towwuid, W \ 98368
I cL 3603-xo.ic0 j tax: 360.3721-111 11(16"03,
\V'cb: www.co ictifcc,r,u w1 u-'annmunit�'�IcvcloI �:mail: & U%%co.jcffcrsonwa us Eq
l NO \0
AUG 3 1 2017
PERMIT AAPPLICATION
Steps in the Permit Process: ( N-� fr 1) JM�EPZON COUM Y j)(,'j)
-Review application checklist to ensure all information is completed prior to submitting application.
-Make sure septic has been applied for and water availability has been proven.
-Make an appointment to meet with the Permit Technician by calling 360-379-4450.
-This is not a standalone application; it must be accompanied by a project specific supplemental application.
-Fees will be collected at intake. Additional fees may apply after review and payment is required before permit is issued.
For Department Use Only Building Permit #
Related Application #s: MLA #
Site Information
Assessor Tax Parcel Number: 998200130
Site Address and/or Directions to Property:
Access (name of street(s)) from which access will be gained:
Present use of property:
Description of Work (include proposed uses):
Wastewater - Sewage Disposal
This property is served by Port Townsend or Port Ludlow sewer system? YES_ NO
If not served by sewer identified above, identify type of septic system below:
Type of Sewage System Serving Property:
Septic Septic Permit #:
Community Septic Name of System: Case #:
Are other residences connected to the septic system?
Additions or repairs to sewage system:
Is it a complete or partial system installation: Complete Partial
Has a reserve drainfield been designated? Yes No
Date of Last Operations & Maintenance check: Attach last report to application
Describe or attach any drainfield easements, covenants or notices on title, which may impact the property:
LOG ITEM # 003
PAGE 1 of 32
The authorized agent/representative is the primary contact for all project -related questions and correspondence. The County will mail
/ e-mail requests and information about the application to the authorized agent/representative and will copy (cc) the owner noted
below. The authorized agent/representative is responsible for communicating the information to all parties involved with the
application. It is the responsibility of the authorized agent/representative and owner to ensure their mailbox accepts County email (i.e.,
county email Is not DIOCKeo Or Sent tV 1UHK roan 1.
Applicant/Property Owner Information
Property Owner:
Name: Michael Gleeson
Address: 12295 - 15th Avenue SW, Burien, WA 98146
Phone #: (206) 300-2493 E-mail Address: Mgleeson61@yahoo.com
Please contact Authorized Agent/Representative with project info. (select only one).
Property Owner Signature: L,CI I (lS Date: Zc 1
Note: For projects with multiple owners, attach a separate sheet with each owner(s) information and signatures.
Applicant: Authorized Agent/Representative (if other than owner)
Name: Dennis D. Reynolds
Address: 200 Winslow Way West, Suite 380 Bainbridge Island, WA 98110
Phone #: 206-780-6777 E-mail Address: dennis@ddrlaw.com
Professional: Is this an Authorized Agent/Representative for this project? NO YES
Engineer Architect — Surveyor Contractor Consultant —
Name: License #
Address: --
Phone #: E-mail Address:
Professional: Is this an Authorized Agent/Representative for this project? NO YES
Engineer Architect Surveyor Contractor Consultant
Name: License #
Address: -
Phone #: E-mail Address:
Professional: is this an Authorized Agent/Representative for this project? NO YES
Engineer Architect Surveyor Contractor Consultant
Name: License #
Address:
Phone #: E-mail Address:
By signing this application form, the owner/agent attests that the information provided herein, and in any attachments, is true and
correct to the best of his or her knowledge. Any material falsehood or any omission of a material fact made by the owner/agent with
respect to this application packet may result in making any issued permit null and void.
I further agree to that all activities I intend to undertake or complete associated with this permit will be performed in compliance with
all applicable federal, state and county laws and regulations and I agree to provide access and right of entry to Jefferson County and its
employees, representatives or agents for the sole purpose of application review and any required later inspections. Applicant may
request notice of the Co ty' , intent to enter upon the property for visits related to this application and subsequent permit issuance.
Signature: Print Name: Dennis D. Reynolds Date: 8/31/17
LOG ITEM # 003
PAGE 2 of 32
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BEFORE THE JEFFERSON COUNTY
OFFICE OF THE HEARING EXAMINER
MICHAEL and VICTORIA GLEESON,
Appellants,
V.
JEFFERSON COUNTY, acting through its
Department of Planning and Community
Development,
No.
APPEAL OF ADMINISTRATIVE
DECISION
Pursuant to Jefferson County Code Section 18.40.390 the Dennis D. Reynolds Law
office submits an appeal to the Jefferson County Office of Hearing Examiner on behalf of
Michael and Victoria Gleeson. The decision appealed is a Type II permit decision,
comprising an Official Unified Development Code Interpretation. The decision appealed is
dated August 23, 2017.
Mr. and Ms. Gleeson own a waterfront lot of approximately one-half acre located in
unincorporated Jefferson County. The property address is 234 Tala Shores Drive, Port
Ludlow, Washington 98365, Lot 33 of the Plat of Tala Shores, Jefferson County Parcel
No. 998200130. The lot is approximately one-half acre. The Gleeson's desire to construct a
modest single-family home on the lot approximately 50 feet from the top of the bank -water
line in line with other homes in the neighborhood. The parcel is zoned Rural Residential-5 —
APPEAL OF ADMINISTRATIVE., DECISION - I of 6 DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
[90381-I1 LOG ITEM # QQ3 Bainbridge Island, WA98110
(206) 780-6777
PAGE 3 of 32 (206) 780-6865 (Facsimile)
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one (1) dwelling unit per five acres ("RR-5"). The Shoreline environmental designation is
Shoreline Residential ("SR"). The lot is nonconforming under applicable zoning.
The parcel is 75 feet wide and 242 feet long. The proposed home would be about 50-
feet wide. An attached four (4) foot deck would in front of the home and wrap around one
side. The property has an historic approved drain field mid -way down its length.
The Gleeson property is part of the Plat of Tala Shores approved on September 7,
1962. See Exhibit 2 to Request for Code Interpretation, by reference incorporated into this
appeal The plat has been built out such that all the homes have the same approximate setback
from the bluff, on average, 50-60 feet. See Topographic Survey dated August 23, 2017,
attached hereto as Exhibit A, by refrence made part of this appeal.
There are existing homes on each side of the Gleeson parcel. These homes sit
approximately 60 feet from their respective bluff tops. The home to the south is about six feet
from the mutual property line; the home to the north is about fifteen feet from the common
property line.
Decision Beina Appealed and Identification of the Application
Which is the Subject of the Appeal.
The Code Interpretation is annexed hereto as Exhibit B, by reference made part of this
appeal. ("the Decision"). The Request for Interpretation dated July 24, 2017, is annexed
hereto as Exhibit C, by reference made part of this appeal.
Name, Address and Phone Number of the Appellants and their Interest in the Matter
Michael and Victoria Gleeson reside at 12295, 15th Avenue SW, Burien, Washington
98146. Their telephone number is: 206-300-2493. The Gleeson's own the property subject to
the Code Interpretation. Their legal representative in this is matter is Dennis D. Reynolds of
DENNIS D. REYNOLDS LAW OFFICE
APPEAL OF ADMINISTRATIVE DECISION - 2 of 6 200 Winslow Way West, site 380
190381-11 Bainbridge Island, WA 98110
LOG ITEM # 003 (206) 780-6777
(206) 780-6865 (Facsimile)
PAGE 4 of 32
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the Dennis Reynolds Law Office, located at 200 Winslow Way West, Suite 380, Bainbridge
Island, Washington, 98110. Mr. Reynolds' telephone number is: 206-780-6777.
Appellants' Statement Describing Standing to Anneal
The Gleeson's submitted the Code Interpretation. The Decision affects their ability to
develop their waterfront property with a single-family home by imposing a legally and
factually unsupported 150 foot "no build" setback or buffer from the ordinary high water
mark. Appellants are prejudiced or likely to be prejudiced by the County's Decision if no
relief is granted. A ruling in favor of Appellants will substantially eliminate or redress the
prejudice that the Decision has caused, or will likely cause them, for which review and
relief is requested.
Specified Errors (Specific Reasons why the Appellants believe the Decision is Wrong)
(1) Vested Status. The County's shoreline use regulations, JCC 18.25.270(1)(c)
and JCC 18.25.270(4)(f), direct the County to "recognize and apply a buffer established by an
existing plat..."). The Code Interpretation Decision, p. 3, acknowledges these Code
requirements, but erroneously fails to apply them, on the basis the applicant "has not
presented evidence that the plat had a specific buffer or setback established." With due
respect, the proof is the built condition set by building permits issued by Jefferson County
within the Plat of Tala Shores. This information is public record, easily available to the
County since it is the County's own information, and could have been provided by Appellants
if requested. As the Decision acknowledges "...existing homes in the 1962 Plat of Tala
Shores have generally been constructed at a lesser shoreline setback than the currently
required 150-foot buffer." Decision, p. 3. The Decision is procedurally flawed, ignores
APPEAL OF ADMINISTRATIVE DECISION - 3 of 6 DENNIs D. REYNOLDs LAW OFFICE
[90381-1] 200 Winslow Way West, Suite 380
LOG ITEM # 003 Bainbridge Island, WA 98110
(206)7AO-6777
(206) 7 0-6865 (Facsimile)
PAGE 5 of 32
1 substantial evidence in the public record, and erroneously fails to apply the actual facts to the
2 law.
3 (2) Common Boundary Setback. The Decision erroneously fails to answer one of
4
the Code Interpretation Requests made by Appellants relating to the Code's "common
5
boundary setback" provisions. This is procedural error. Appellants requested:
6
7 Alternatively, determine that the common setback provisions for a non -conforming
lot, JCC § 18.25.270(5)(b) apply, such to allow the proposed Gleeson home to be
8 constructed closer to the shoreline.
g (Interpretation Request, p. 1)
10
The Examiner should decide the question. Common setback provisions apply to
11
nonconforming lots when an adjacent shoreline parcel is already developed. See JCC
12 § 18.25.270(5)(b). In order to maintain views that are comparable for residences, a special
13 buffer for a new single family residence is established if: (a) the proposed residence is within
14
300 feet of a residence constructed prior to adoption of the JCSMP which is already
15
encroaching on the buffer; or (b) when there are houses on both sides of the build site, the
16
imaginary line between the nearest corners of the existing buildings, or the average distance
17
of the setbacks of the existing buildings, whichever calculation is larger. JCC
18
§ 18.25.270(5)(b)(i), (ii). See Figures 18.25.270(1); (2); and (3), attached (Exhibit 3) to Code
19
Interpretation Request, by reference made part of this Appeal.
20
21 The referenced regulations state the Director "may reduce the standard buffer for a
22 new single-family..." but then states for "existing homes on both sides" of a non -conforming
23 lots "...the buffer shall be determined as...." See JCC § 18.25.270(5)(b)(ii) (emphasis
24 LOG ITEM # 003
supplied). This language is mandatory.
25 PAGE 6 of
(3) Nonconforming Lot. The Decision erroneously interprets and applies the Code
26
as to non -conforming lots. Those terms are defined as follows in the JCSMP:
DENNIs D. REYNows LAW OFFICE
APPEAL OF ADMINISTRATIVE DECISION - 4 of 6 200 Winslow Way West, Suite 380
[90381-11 Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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"Nonconforming lot" means a legal lot of record in
existence prior to the effective date of this program and any
amendments thereto, on which it is not possible to construct a
structure outside of/landward of the shoreline buffer or which
does not otherwise meet the minimum lot size requirements as
set forth in this program. Depth of lot is measured as the
distance from ordinary high water mark to the inside edge of the
frontage setback."
JCC § 18.25.100(14)(h) (emphasis supplied).
Under the law, the word "or" is in the disjunctive, that is, tl}e language is mutually
exclusive — one or the other. HJS Dev., Inc. v. Pierce County ex rel. Dept of Planning &
Land Servs., 148 Wn.2d 451, 473 n. 95, 61 P.3d 1141 (2003) Here, the Gleeson lot does not
meet the minimum five acre lot size, and is thus a nonconforming lot. The Gleeson lot
continues to have a vested status for futurere development. See JCC Section 18.25.660(10(a)
DCD staff misinterprets or misapplies the JCSMP for the Gleeson proposal. DCD seems to
be saying that since a "building pad" is available landward of the "standard buffer," the lot is
not "nonconforming." This interpretation illegally ignores the alternative language that a lot
is non -confirming if it fails to meet the minimum requirements of the master program. In this
regard, JCC Section 18.25.500(1)(d) provides that new residential development "...should be
limited to densities that are consistent with the Jefferson County Comprehensive Plan goals
and policies, zoning restriction, and this program." This is the tie-in between the Zoning
Code and the SMP. The SMP states the word "should'" means that "...the particular action is
preferred..."
Desired Outcome
Reverse the Administrative Decision and rule that Appellants are not bound by a 150-
foot shoreline buffer setback. Rule further that the Appellants are entitled to the benefit of the
Code's common setback provisions and/or the Code's recognition of the vested property
status of setbacks established by prior plat approvals or the Code's nonconforming lot
provisions.
APPEAL OF ADMINISTRATIVE DECISION - 5 of 6 200 Wi sl w Way DS LAW OFFICE
200 Winslow Way West, Suite 380
[90381-11 LOG ITEM # 003
Bainbridge Island, WA 98110
(206)7PO-6777
PAGE 7 of 32 (206) 7 0-6865 (Facsimile)
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The undersigned Appellant and his legal representative have read this appeal and
believe the contents to be true. The required appeal fee is tendered with this appeal.
DATED this 30th day of August, 2017.
DENNIS D. REYNOLDS LAW OFFICE
By
Dennis D. Reynolds, WSBA 404762
Attorneys for Appellants Michael and Victoria
Gleeson
By �' r
Michael Gleeson
Appellant
APPEAL OF ADMINISTRATIVE DECISION - 6 of 6
(90381-11
LOG ITEM # 003
PAGE 8 of
DENNIs D. KEYNOLDs LAW OFFICE
200 Winslow Way West. Suite 380
Bainbri)1.ge Island, WA 98110
(206) 7g0-6777
(206) 780-6865 (Facsimile)
3
Gleeson — Appeal
Exhibit A
LOG ITEM # 003
PAGE 9 of 32
------ ----------
TALA SHORE
DRIVE
----------
— --------
---
W
lit
1% AV
L-LI
I
r
NOR I-HWESTERN TERRITORIES, INC.
NTI
LOG ITEM #
PAGE 10
Topographic Survey
Mike Gleeson
234 To/a Shore Dr.
a
32
Gleeson — Appeal
Exhibit B
LOG ITEM # 003
PAGE 11 of 32
JEFFERSON COUNTY
DEPARTMENT OF COMMUNITY DEVELOPMENT
621 Sheridan Street, Port Townsend, WA 983681 Web www.cc iefferson wa usicommunitydevelopment
Tel 360.379 44501 Fax 360.379.44511 Email dcd aako.iefferson.wa.us
SquareONE Resource Center I Building Permits & Inspections l Development Review l Long flange vianning
August 23, 2017
Dennis D. Reynolds
Dennis D. Reynolds Law Office
200 Winslow Way W., Suite 380
Bainbridge Island, WA 98110
RECEIVED
:_,262017
oennis D. Reynolds Law Ofilce
Re: Michael and Victoria Gleeson, regarding property at 234 Tala Shores Drive, Port
Ludlow - Request for Unified Development Code Interpretation
Dear Mr. Reynolds:
On behalf of Michael and Victoria Gleeson, and with payment of the amount owed pursuant to the
County's fee Ordinance, a request has been made for a Unified Development. Code ("UDC")
Interpretation as is authorized by County Code § 18.40.350. This is the County's response to that
Request for a UDC Interpretation.
Question(s) posed:
Based on our prior meetings, the Gleesons wish to construct a new single-family residence on Lot 33 of
the Plat of Tala Shores, Jefferson County Parcel No. 998200130, located at 234 Tala Shores Drive, Port
Ludlow. At issue is the applicable shoreline buffer and setback under Jefferson County Code (JCC).
The specific interpretation requests before the UDC Administrator are as folllows:
Interpret the Jefferson County shoreline use regulations as to buffer and setbacks, including
allowed deviations for the standard 150-foot buffer, as "trumping" other provisions of the
Uniform Development Code, e.g., the Critical Areas Ordinance.
2. Under the circumstances, recognize the setback established by a prior plat approval as falling
within shoreline policies at JCC 18.25.270(1)(c) and l 8.25.270(4)(f) (The County shall
recognize and apply a buffer established by an existing plat...). The requested interpretation
would be such that the setback established by approval of a plat is controlling and considered
vested against the new shoreline regulations found in JCC Chapter 1'8.25.
LOG ITEM # 003
PAGE 12 of 32
3. Alternatively, determine that the Gleeson parcel is non -conforming lot as defined by JCC
18.25.100(14)(h).
4. Alternatively, determine that the common setback provisions for a non -conforming lot at JCC
18.25.270(5)(b) apply, such to allow the proposed Gleeson home to be constructed closer to the
shoreline.
Why is a Code Interpretation appropriate for the questions posed?
This Code Interpretation is appropriate in accordance with JCC 18.40.350 for the questions posed above
because such a "[UDC. Code Interpretation] is intended to ... interpret proper classification of a use, or
interpret the scope or intent of the provisions of this code." The question posed by the Gleesons boils
down to "can a single-family residence be constructed approximately 50 feet from the top of bluff,
which is closer to the shoreline than the currently required 150-foot buffer plus 10-foot construction
setback?"
What sections of the current code are beinz inter reted?
The applicant has requested interpretation of Uniform Development Code, Chapter 18.25, Shoreline
Master Program, JCC 18.25.270(4)(a)(b); JCC 18.25.070(1)(c); JCC 18.25.270(4)(0; JCC
18.25.100(14)(h) and JCC 18.25.270(5)(b).
Summary of relevant facts
1. The Gleeson lot is a shoreline parcel, approximately one-half acre in size.
2. The parcel is zoned Rural Residential (RR-5), one dwelling unit per five acres.
3. The Shoreline environmental designation is Shoreline Residential (SR).
4. The parcel is 75 feet wide by 242 feet long.
5. The proposed residence would be about 50 feet wide with a four -foot wrap around deck on the
front and side, which would line up with the adjacent homes on either side (presumed to be
approximately 60 feet from top of bluff, but not precisely measured).
6. The prior owners applied for a septic permit in 1990, signed off by Jefferson County Health
Department in 1993. The septic system is located approximately 132 feet from the top of
bluff and 100 fee from an existing water well on the property.
7. The Gleeson property is in the Plat of Tala Shores, approved in 1962. The plat is mostly
built out, with a similar setback from all homes to the top of bluff.
LOG ITEM # 003
PAGE 13 of 32
Conclusion:
Gleeson Shoreline Buffer Interpretation
Items in bold below are listed in order of the applicant's questions posed (pp. 1-2 above).
The applicant requests that Jefferson County determine that shoreline buffers and setbacks,
including allowed deviations from the standard 150-foot buffer, "trump" other provisions of the
Uniform Development Code.
JCC 18.25.270(4)(a) and (b) provide direction as to when the Shoreline Master Program shall govern.
Specifically, subsection (a)(i) states "All provisions listed in subsections (4)(b) through (1) and (5(a)
through (d) of this section (e.g., building setback, buffers, CASPs, reasonable use, nonconforming lots,
water -oriented use/development) and provisions found in JCC 18.25.660 (i.e., nonconforming
development), shall be governed by this program and not Chapter 18.22 JCC; and... ".
Subsection (b) states "In the event development of performance standards in Chapter 18.22 JCC are
inconsistent with standards in this program, this program shall govern. "
This code interpretation relies on JCC 18.25 to govern in accordance with the; above language.
The applicant requests that Jefferson County recognize the setback established by a prior plat
approval, in accordance with the policies and regulations at JCC 18.25.270(1)(c) and
18.25.270(4)(f).
Per the applicant, "the requested interpretation would be such that the setback established by the
approval of plat is controlling and is considered vested against the new shoreline regulations found in
JCC Chapter 18.25."
Subsections (1)(c) and (4)(f) direct the County to "recognize and apply a buffer or setback established
by an existing plat...". While existing homes in the 1962 Plat of Tala Shores have generally been
constructed at a lesser shoreline setback than the currently required 150-foot buffer, the applicant has not
presented evidence that the plat had a specific buffer or setback established. In lieu of such evidence, the
County finds that the 150-foot buffer and 10-foot building setback as established in the 2014 Shoreline
Master Program apply to the Gleeson parcel.
Alternatively, the applicant requests that Jefferson County determine that the Gleeson parcel is a
non -conforming lot as defined by JCC 18.25.100(14)(h).
In order to determine if the Gleeson lot is nonconforming, it is important to look at the definition at JCC
18.25.100(14)(h):
"'Nonconforming lot' means a legal lot of record in existence prior to the effective date of this program
and any amendments thereto, on which it is not possible to construct a structure outside of/landward of
the shoreline buffer or which does not otherwise meet the minimum lot size requirements as set forth in
this program. Depth of lot is measured as the distance from ordinary high water mart to the inside edge
of the frontage setback. "
LOG ITEM # 003
PACE 14 of 32
Under the first section of the definition, the applicant must demonstrate that it is not possible to
construct a structure outside of/landward of the 150-foot shoreline buffer. Assuming a lot depth of 242
feet and subtracting the 10-foot setback from the shoreline buffer and a minimum 20-foot setback from
the front property line, there would be approximately 62 feet of lot depth remaining for the structure.
This applicant has not demonstrated it is not possible to construct a structure in the area outside
of/landward of the required buffer. As such, the County finds that the subject lot does not qualify as
nonconforming under the first section of the definition.
The second section of the definition applies to legal lots of record that do not "...otherwise meet the
minimum lot size requirements as set forth in this program. "
In spite of the above language, the Shoreline Master Program (JCC 18.25) does not actually set forth
minimum lot size requirements. As such, the applicant suggests that the lot size issue is appropriately
dealt with through the Zoning code, citing JCC 18.25.500(1)(d):
"New residential development should be limited to densities that are consistent with the Jefferson
County Comprehensive Plan goals and policies, zoning restrictions, and this program. The density per
acre of development should be appropriate to local natural and cultural features. "
The above policy addresses residential densities within the shoreline jurisdiction, which is not at issue —
the parcel is already established and it is assumed that one single-family residence will be constructed in
accordance with the rural zoning designation. At issue is the location of the proposed residence on the
parcel rather than the residential density.
As such, the County finds that the second section of the definition addressing minimum lot size
requirements also does not apply, and the Gleeson parcel therefore does not meet the definition of
`.nonconforming lot" as defined at JCC 18.25.500(1)(d).
Alternatively, the applicant requests that Jefferson County determine that the common setback
provisions for a non -conforming lot at JCC 18.25.270(5)(b) apply, such to allow the proposed
Gleeson home to be constructed closer to the shoreline.
JCC Section 18.25.270(5)(b) is titled "Nonconforming lots — Common Line Buffer", and states that
"For the purpose of accommodating shoreline views to be adequate and comparable to adjacent
residences, but not necessarily equivalent, the administrator may reduce the standard buffer for new
single-family residences on nonconforming lots consistent with the following criteria... " (Note: the full
citation includes the standard for accommodating new structures within 300 feet of adjacent residences
as cited in the applicant's letter).
Based on the finding above that the Gleeson parcel does not meet the definition of a nonconforming lot,
the County finds that the common line setback provision at JCC 18.25.270(5)(b) is not applicable.
In summary, the applicant has not demonstrated that the existing plat of Tala Shores established a
shoreline buffer or setback, or that the Gleeson parcel is a nonconforming lot under JCC 18.25. As
LOG ITEM # 003
PAGE 15 of 32
such, the Department finds that the currently required 150-foot marine buffer plus 10-foot
building setback applies in accordance with JCC 18.25.270(4).
Appeal rights:
The requester is hereby notified that this Code Interpretation may be APPEALED to the County's
HEARING EXAMINER by complying with the APPEAL PROCESS described in the County Code at
JCC § 18.40.390.
Please feel free to contact me at 360-379-4488 should you have any questions.
Sincerely, ;?
David Greetham,
Planning Manager
Jefferson County Department of Community Development
LOG ITEM # 003
PAGE 16 of 32
Gleeson — Appeal
Exhibit C
LOG ITEM # 003
PAGE 17 of 32
dRDennis D. Reynolds Law Once
200 Winslow Way W. Suite 380 Bainbridge Island, WA 98110
Land Use • Fisheries Law • Environmental Law • Business Law • Indian Law • Real Estate
206,780.6777 206.780.6865 fax ww.ddrlawxom
July 24, 2017
By email Nmreetham(uc•o ie&rson wa its) and United States Mail
David Greetham
Planning Manager
Jefferson County Department of Community Development
621 Sheridan St.
Port Townsend, WA 98368
Re: Gleeson - of
fic•ial Code Interpretation Request
Dear Mr. Greetham:
Pursuant to the Unified Development Code, Jefferson County Code Section 18.40 please
treat this letter as a request for an Official Code interpretation. The request in made on behalf of
Michael and Victoria Gleeson. The property address is 234 Tala Shores Drive. Port Ludlow,
Washington 98365, Lot 33 of the Plat of Tala Shores, Jefferson County Parcel No. 998200130.
Proposed Interpretation.
(1) Interpret the Jefferson County shoreline use regulations as to buffers and setbacks,
including allowed deviations for the standard 150-feet buffer, as "trumping" other
provisions of the Uniform Development Code, e,g., the Critical Areas Ordinance. See
JCC § 18.25.270(4)(a)(b) provisions.
(2) Under the circumstances, recognize the setback established by a prior plat approval as
falling within shoreline policies, JCC§ 18.25.070(1)(c) ("The County should
recognize and honor buffers and setbacks established by existing plat...." and
requirements, JCC § 18.25.270(4)(t) (The County shall recognize and apply a buffer
established by an existing plat....). The requested interpretation would be such that
that the setback established by approval of a plat is controlling and considered vested
against the new shoreline regulations found in JCC Chapter 18.25.
(3) Alternatively, determine that the Gleeson parcel is a non- conforming lot as defined
by JCC§ 18.25.100 (14) (h).
(4) Alternatively, detennine that the common setback provisions for a non -conforming
lot. JCC § 18.25.270(5)(b) apply, such to allow the proposed Gleeson home to be
constructed closer to the shoreline.
LOG ITEM # 003
I90381-I I
PAGE 18 of 32
July 24, 2017
Page 2
Applicable Facts.
The Gleeson lot is approximately one-half acre. It is waterfront. The Gleeson's desire to
construct a modest single-family home on the lot approximately 50 feet from the top of the bank -
water line. Presumably, the ordinary highwater mark would be at the toe of the slope, if not
further down the beach. The parcel is zoned Rural Residential-5 - one (1) dweIling unit per five
acres ("RR-5"). The Shoreline environmental designation is Shoreline Residential ("SR-). The
lot is nonconforming as to its size under applicable zoning
The parcel is 75 feet wide and 242 feet long. The prior owners contemplated building a
residence with a 50-foot setback from the bluff, which was the appropriate setback at the time.
The proposed home would be about 50-feet wide. A four (4) foot deck would be on one side of
the home.
The prior owners applied for a three -bedroom septic permit in April 1990 signed off by
the Jefferson County Health Department in January 1993. From the enclosed drawing, Exhibit
1, it appears that the septic system is located approximately 132 feet from the bluff and
approximately 100 feet from an existing water well on the property. The prior residence was not
constructed.
The Gleeson property is part of the Plat of Tala Shores approved on September 7, 1962.
See Exhibit 2. The plat has been built out such that all the homes have the same approximate
setback from the bluff.
There are existing homes on each side of the Gleeson parcel. These homes sit
approximately 60 feet from their respective bluff tops, but that needs to be precisely confirmed
prior to building permit submittal. The home to the south is about six feet from the mutual
property line; the home to the north is about fifteen feet from the mutual property line. There is
thus no problem meeting the 300-foot requirement.
Specification of Code to be Interpreted.
Uniform Development Code, Chapterl8.25, Shoreline Master Program, JCC
§ 18.25.270(4)(a)(b); JCC§ 18.25.070(1)(c); JCC § 18.25.270(4)(f); JCC§ 18.25.100 (14) (h) and
JCC § 18.25.270(5)(b).
Necessity of Interpretation.
The JCSMP affects a significant number of shoreline property owners, many who own
undeveloped lots. The current shoreline regulations are relatively new, and there is little current
experience applying the new regulations to guide applicants, staff or property owners.
The public would benefit from a Code interpretation as to how to apply the shoreline
buffers. Jefferson County plans under the Growth Management Act, RCW 36.70A. One GMA
190381-11 LOG ITEM # 003
PAGE 19 of 32
July 24, 2017
Page 3
policy is to ensure predictability and fairness in the permitting process. See RCW
36.70A.020(5). The requested interpretation would implement this policy.
Reasons and Justification for Requested Interpretation.
The proposed residence is within 300 feet of a residence constructed prior to adoption of
the JCSMP which is already encroaching on the standard buffer. Under JCC
§ 18.25.270(5)(b)(i), (ii) the Director "may reduce the standard buffer for a new single-
family...". Actually, the Director is required to do so. See JCC § 18.25.270(5)(b)(ii) (for
"existing homes on both sides" of non -conforming lots "...the buffer shall be determined as..."
(Emphasis supplied). Then see Figures 18.25.270(1); (2); and (3), attached (Exhibit 3).
How to deal with a non -conforming lot under the Zoning Code is controlled by the
JCSM. JCC Section 18.25.500(1)(d) provides that new residential development "...should be
limited to densities that are consistent with the Jefferson County Comprehensive Plan goals and
policies, zoning restriction, and this program." Thus, there is the tie-in between the Zoning Code
and the SMP.
The SMP states the word "should" means that "...the particular action is preferred..."
Property rights must be factored in. Single-family homes are a preferred use under the
Shoreline Management Act and JCSMP. Thus, interpretation of these laws must be sensitive to
the right to use and develop shoreline property for residential use, a "light hand" approach, since
interpretations must not offend constitutional protections.
On the last point, in Washington state, the right to use and develop land is fundamental
and protected under both the Washington State and Federal Constitutions. As the Washington,
Supreme Court has stated:
Property in a thing consists not merely in its ownership and
possession, but in the unrestricted right of use, enjoyment and
disposal. Anything which destroys any of these elements of
property, to that extent destroys property itself. The substantial
value of property lies in its use If the right of use be denied the
value of the property is annihilated and ownership is rendered a
barren ri eht.
Manufactured Housing Cmtys. v. State. 142 Wn.2d 347, 364, 13 P.3d 183 (2000) (quoting
Ackerman v. Port of Seattle. 55 Wn.2d 400, 409, 348 P.2d 664 (1960) (emphasis added).
Additionally, the Washington Supreme Court has long -recognized that "[a]lthough less
than a fee interest, development rights are beyond question a valuable right in property." West
Main Associates v. Bellevue, 106 Wn.2d 47, 50, 720 P.2d 782, (1986). "Despite the expanding
power over land use exerted by all levels of government, `[t]he basic rule in land use law is still
190381-11 LOG �TEM # 003
PAGE 20 of 32
July 24.2017
Page 4
that, absent more, an individual should be able to utilize his own land as he sees tit."' Id. (citing
Norco Consir.. Inc. v. King County. 97 Wn.2d 680, 684, 649 P.2d 103 (1982)).
Property rights are not "poor relations" of other Bill of Rights guarantees. See Dolan v.
Tigard, 512 U.S. 374. 392 (1994).
The Shoreline Management Act (SMA) unequivocally states that coordinated planning is
necessary in order to protect the public interest associated with the shorelines of the state while,
at the same time, recognizing and protecting private property rights consistent with the
public interest. RCW 90.58.020 (emphasis supplied). The SMA also states that "the Legislature
further finds that much of the shorelines of the state and the uplands adjacent thereto are in
private ownership ...." RCW 90.58.020 (emphasis supplied).
The SMA declares that it "is the policy of the state to provide for the management of the
shorelines of the state by planning for and fostering all reasonable and appropriate uses." See
RCW 90.58.020. The policy of the SMA as set forth in RCW 90.58.020 strikes a balance
between protection of the shoreline environment and reasonable and appropriate use of the
waters of the state and their associated shoreline. See Nisqually Delta Assn v. City of DuPont,
103 Wn.2d 720, 727, 696 P.2d 1222 (1985).
The balance envisioned by the SMA anticipates that there will be some impact to
shoreline areas by development or continued use, repair and maintenance of existing structures
or developments. The SMA explicitly states "[a[Iterations of the natural conditions of the
shorelines and shorelines shall be recognized by the department." RCW 90.58.020. (Emphasis
supplied.) Single-family homes are a priority use of the shorelines which falls within allowed
alterations of the shorelines.
Government cannot extinguish a right or liberty by merely enacting a law that purports to
subordinate that right or liberty. Chelan Basin Conservancy v. GBI holding Co., No. 93381-2.
slip op. at 20 (July 6. 2017) (quoting Freedom Found. v. Gregoire, 178 Wn.2d 686, 706, 310
P.3d 252 (2013) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 L. Ed. 60 (1803)).
The $651.00 application fee is submitted with the hard copy of this letter. If you have
questions, or require clarification regarding the requested interpretation, please get back to me.
Thank you for your kind attention to these comments and enclosures
Very truly yours,
DENNIS D. RF.YNOLDS LAW OFFICE
C
r
Dennis D. Reynolds
Enclosures
cc:
DDR/jb
190381.11 LOG ITEM # 003
PAGE 21 of 32
Gleeson — Code Interpretation
Exhibit 1
LOG ITEM # 003
PAGE 22 of 32
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Gleeson — Code Interpretation
Exhibit 2
LOG ITEM # 003
PAGE 24 of 32
59§p§� PGS I- 1ST IUD
J&Ifarten Ceenlr $0 Aud1i" Otfloe -Rota Carroll Q"dilor
oilN�I��tl�� EM0 MKOhllU0+MAM IINI
When recorded return to.
Michael F. Gleeson
Victoria E. Gleesoa
1229S 15113 Ave SW
Burton, WA 98146
Filed for Rocord at Request of
All About Escrow, Inc.
Escrow Number: 16-0092
Statutory Warranty Deed O
THE GRANTORS Sarab F. Blossom and James K. Hattricit, wife and h consideration of
TEN DOLLARS AND OTHER GOOD AND VALIIABLE CONSM ON conveys and
waurants to Michael F. Gleason and Victoria E. Gleason, haeband a d fe, 1lewhl described teal
estate, situated in the Ctmnty of Jefferson, State of Washington;
Abbraviated Legal:
Lot 33 Tolo Shores N1
Tax Parcel Numbaft 9MOO130 )
Let 33, Tale Share, as per plat recorded to Volume 4 of Plats, eeerds o(Jetler'son County,
�>
Situate to the Canty of Jefferson, State of Wa3b,,. tea
SUBJECT TO: SEE E)OIIBff "A^
Dated
C1
MADE A PART HEREOF.
h F. Blossom
O
STATE OF Wean a
COUNTY OF Jefferso SS:
i e"di)' that i or dace that Sarah F. Blossom and James K. Hsttrlek
are the peestan wbe be tee, and said Pusan aclmowledged that they
siped thB It to be their lime and voltmtary act for the
uses and purposes this Instrument.
2 2 L 'd
1r � S vac• off_
rttlllry —.
�i��� Notary Public in and for the State of Washinatea
t@(ssto� ti h t Residing at i T
` NOl My apporra expires:
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749691 1232% 0/29/2016 3,029.m LOG IriEM # 003
PAGE 25 of 32
SUM Page 2 of 2 04/291201611:69 AM
EXHIBIT "A"
SUBJECT TO:
I. Right of the public to snake necessary slopM for arts ar fills upon said premises' original
reasonable grading of atz avenues,'eUgs aid roads, as dodicated in
2. Right of the public to drain all sheets and made, over and across any k� ter
might take a natural comae after the street and made are graded as d
3. Rights of the general pnbBe to the unrestricted use of ail the le body of wear
not only for the primary purpose of navigation, but also for whuhng (but not
limited to) fishing, boating, bathing,.sar ng, woter o lated reatanional
purposes, as dhow waters may affect @se tideiurtds, g uplands and whether
the level oftbe water has boas raised tmntraify or ezieily m or thtonratiag level,
all as tlathar def aed by the deeisieaal law of the ( of the premises subject to such
submagatce)
4. Any claim to (a) owner gdp of or ' ®aaals and similar wbtKaaces, inctuaiirtg but not
Ilmited to ores, metals, coal, Uguho, oil, clay, cock, sand, and gravel located in, on.
or under the Land or produced from such owuerabip or rights arise by lease,
grant, exception, canvaysaoe, o and (b) any rights, pri4egas,
immunities, rights of way, and 6=whb or appurtenant thareto, whether or
not the brWrests or rights in the Public Records.
LOG ITEM # 003
I
PAGE 26 of 32
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Gleeson — Code Interpretation
Exhibit 3
LOG ITEM # 003
PAGE 30 of 32
Jefferson County Code 1825.270 Critical areas, shoreline buffers, and ecological protection. Page 8 of 10
common tine drawn between the nearest corners of each adjacent residence (see Figure
18.25.270(1)), or (B) a common line calculated by the average of both adjacent residences'
existing setbacks (i.e., (y+z)/2=x buffer; see Figure 18.25.270(2)).
(ill) Existing Home on One Side. Where there is only one existing residence adjacent to the
Proposed residence, the common line buffer shall be determined as the greater of either (A)
a common line drawn between nearest corner of the foundation for the adjacent residence
and the nearest point of the standard buffer on the adjacent vacant lot (see Figure
18.25.270(3)), or (B) a common line calculated by the average of the adjacent residence's
setback and the standard buffer for the adjacent vacant lot (i.e., (y+z),2-x buffer; see
Figure 18.25.270(4)).
(iv) Figures 18.25,270(1) through (4) illustrate examples of the common line buffer
allowance. When discrepancy between the text and the graphic exists, the text shall govern.
Graphics are for Illustration only, buffer shall be measured perpendicularly from the ordinary
high water mark as per this section.
Figures 1til•45.270(1) - (4)
Figure 18.2a.270(1)
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Figure 1 a.2&=(2)
The Jefferson County Code is current through Ordinance 6.16, passed !November 3, 2016.
LOG ITEM # 003
1
PAGE 31 of 32
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Jefferson County Code 1825270 Criticai areas, shoreline buffers, and ecological protectlon. Page 9 of 10
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(c) Nonconforming Lots — Development Requiring a Variance. Development on nonconforming
lots that do not meet the requirements of subsection (5)(6) or (b) of this section require a
shoreline variance.
(d) Water -Oriented Uses/Development. When otherwise consistent with this program and
Chapter 18.22 JCC, the following water -oriented uses/developments may be permitted within a
shoreline buffer without a shoreline variance. The amount and extent of buffer modification shall
The Jefferson County Cade Is current through Ordinance 6-16, passed November 3, 2016.
LOG ITEM # 003
PAGE 32 of 32
Please publish one time. PUBLISH DATE: October 11, 2017
BILL Jefferson County Department of Community Development
621 Sheridan Street, Port Townsend, WA 98368
JEFFERSON COUNTY
NOTICE OF PUBLIC HEARING
APPEAL OF UNIFIED DEVELOPMENT CODE INTERPRETATION
MLA17-00057
NOTICE IS HEREBY GIVEN that a public hearing will be held by the Jefferson County Hearings Examiner to hear an appeal of a Unified Development Code Interpretation.
APPELLANT:
MICHAEL_AND VICTORIA GLEEESON
12295 15 " AVENUE SW
BURIEN WA 98146
Appeal Received Date: August 31, 2017
SITE ADDRESS AND PROJECT LOCATION:
Site Address: 234 Tala Shores Drive. Port Ludlow, WA
Parcel Number: 998200130
DESCRIPTION OF APPEAL:
Pursuant to Jefferson County Code Section 18 40.390 the Dennis D. Reynold Law Office has submitted an appeal of a Unified Development Code Interpretation an behalf of
Michel and Victoria Gleeson. The Gleesons propose construction of a single-family home approximately 50 feet from the top of bank at 234 Tala Shores Drive, Port Ludlow,
Washington. A request for code interpretation of the applicable shoreline buffer and building setback under Jefferson County Code Title 22 (Shoreline Master Program) was
submitted on July 24, 2017 Jefferson County issued a code interpretation on August 23, 2017 indicating an applicable shoreline buffer of 150 feet for the subject parcel. The
appellant has appealed the County code interpretation, a Type II decision.
PUBLIC HEARING AND WHERE TO VIEW DOCUMENTS:
The public hearing will be conducted on October 24, 2017 in the First Floor Conference Room of the Jefferson County courthouse. The hearing will begin at or about 3:00 PM.
The file may be reviewed at the Jefferson County Department of Community Development. All interested persons are invited to receive notice of any hearings and receive a
copy of the decision by submitting such written comment(surequest(s) to the Jefferson County Department of Community Development, Development Review Division, 621
Sheridan Street, Port Townsend, WA 98368, (360) 379-4450.
Project Planner: David Greetham,360-379-4488
LOG ITEM # 004
PAGE — 1 of 1
s
SON JEFFERSON COUNTY
DEPARTMENT OF COMMUNITY DEVELOPMENT
�ySNI�°'��z Tel: 36021 r379.4450 (idan tFax 360.379.445rt Townsend, W Emsai6dcd(a�bo.ieff rson wa.usn.wa.us/communitydevelopment
SquareONE Resource Center I Building Permits & Inspections I Development Review I Long Range Planning
August 23, 2017
Dennis D. Reynolds
Dennis D. Reynolds Law Office
200 Winslow Way W., Suite 380
Bainbridge Island, WA 98110
Re: Michael and Victoria Gleeson, regarding property at 234 Tala Shores Drive, Port
Ludlow - Request for Unified Development Code Interpretation
Dear Mr. Reynolds:
On behalf of Michael and Victoria Gleeson, and with payment of the amount owed pursuant to the
County's fee Ordinance, a request has been made for a Unified Development Code ("UDC")
Interpretation as is authorized by County Code § 18.40.350. This is the County's response to that
Request for a UDC Interpretation.
Question(s) op sed:
Based on our prior meetings, the Gleesons wish to construct a new single-family residence on Lot 33 of
the Plat of Tala Shores, Jefferson County Parcel No. 998200130, located at 234 Tala Shores Drive, Port
Ludlow. At issue is the applicable shoreline buffer and setback under Jefferson County Code (JCC).
The specific interpretation requests before the UDC Administrator are as follows:
1. Interpret the Jefferson County shoreline use regulations as to buffer and setbacks, including
allowed deviations for the standard 150-foot buffer, as "trumping" other provisions of the
Uniform Development Code, e.g., the Critical Areas Ordinance.
2. Under the circumstances, recognize the setback established by a prior plat approval as falling
within shoreline policies at JCC 18.25.270(1)(c) and 18.25.270(4)(f) (The County shall
recognize and apply a buffer established by an existing plat... ). The requested interpretation
would be such that the setback established by approval of a plat is controlling and considered
vested against the new shoreline regulations found in JCC Chapter 18.25.
3. Alternatively, determine that the Gleeson parcel is non -conforming lot as defined by JCC
18.25.100(14)(h).
4. Alternatively, determine that the common setback provisions for a non -conforming lot at JCC
18.25.270(5)(b) apply, such to allow the proposed Gleeson home to be constructed closer to the
shoreline.
Why is a Code Interpretation appropriate for the questions posed?
This Code Interpretation is appropriate in accordance with JCC 18.40.350 for the questions posed above
because such a "[UDC Code Interpretation] is intended to ... interpret proper classification of a use, or
interpret the scope or intent of the provisions of this code." The question posed by the Gleesons boils
down to "can a single-family residence be constructed approximately 50 feet from the top of bluff,
which is closer to the shoreline than the currently required 150-foot buffer plus 10-foot construction
setback?"
What sections of the current code are being interpreted?
The applicant has requested interpretation of Uniform Development Code, Chapter 18.25, Shoreline
Master Program, JCC 18.25.270(4)(a)(b); JCC 18.25.070(1)(c); JCC 18.25.270(4)(f); JCC
18.25.100(14)(h) and JCC 18.25.270(5)(b).
Summary of relevant facts
1. The Gleeson lot is a shoreline parcel, approximately one-half acre in size.
2. The parcel is zoned Rural Residential (RR-5), one dwelling unit per five acres.
3. The Shoreline environmental designation is Shoreline Residential (SR).
4. The parcel is 75 feet wide by 242 feet long.
5. The proposed residence would be about 50 feet wide with a four -foot wrap around deck on the
front and side, which would line up with the adjacent homes on either side (presumed to be
approximately 60 feet from top of bluff, but not precisely measured).
6. The prior owners applied for a septic permit in 1990, signed off by Jefferson County Health
Department in 1993. The septic system is located approximately 132 feet from the top of
bluff and 100 fee from an existing water well on the property.
7. The Gleeson property is in the Plat of Tala Shores, approved in 1962. The plat is mostly
built out, with a similar setback from all homes to the top of bluff.
2
Conclusion:
Gleeson Shoreline Buffer Interpretation
Items in bold below are listed in order of the applicant's questions posed (pp. 1-2 above).
The applicant requests that Jefferson County determine that shoreline buffers and setbacks,
including allowed deviations from the standard 150-foot buffer, "trump" other provisions of the
Uniform Development Code.
JCC 18.25.270(4)(a) and (b) provide direction as to when the Shoreline Master Program shall govern.
Specifically, subsection (a)(i) states "All provisions listed in subsections (4)(b) through (1) and (5(a)
through (d) of this section (e.g., building setback, buffers, CASPs, reasonable use, nonconforming lots,
water -oriented use/development) and provisions found in JCC 18.25.660 (i.e., nonconforming
development), shall be governed by this program and not Chapter 18.22 JCC; and... ".
Subsection (b) states "In the event development of performance standards in Chapter 18.22 JCC are
inconsistent with standards in this program, this program shall govern. "
This code interpretation relies on JCC 18.25 to govern in accordance with the above language.
The applicant requests that Jefferson County recognize the setback established by a prior plat
approval, in accordance with the policies and regulations at JCC 18.25.270(1)(c) and
18.25.270(4)(f).
Per the applicant, "the requested interpretation would be such that the setback established by the
approval of plat is controlling and is considered vested against the new shoreline regulations found in
JCC Chapter 18.25."
Subsections (1)(c) and (4)(f) direct the County to "recognize and apply a buffer or setback established
by an existing plat...". While existing homes in the 1962 Plat of Tala Shores have generally been
constructed at a lesser shoreline setback than the currently required 150-foot buffer, the applicant has not
presented evidence that the plat had a specific buffer or setback established. In lieu of such evidence, the
County finds that the 150-foot buffer and 10-foot building setback as established in the 2014 Shoreline
Master Program apply to the Gleeson parcel.
Alternatively, the applicant requests that Jefferson County determine that the Gleeson parcel is a
non -conforming lot as defined by JCC 18.25.100(14)(h).
In order to determine if the Gleeson lot is nonconforming, it is important to look at the definition at JCC
18.25.100(14)(h):
"'Nonconforming lot' means a legal lot of record in existence prior to the effective date of this program
and any amendments thereto, on which it is notpossible to construct a structure outside of/landward of
the shoreline buffer or which does not otherwise meet the minimum lot size requirements as set forth in
this program. Depth of lot is measured as the distance from ordinary high water mart to the inside edge
of the frontage setback. "
Under the first section of the definition, the applicant must demonstrate that it is not possible to
construct a structure outside of/landward of the 150-foot shoreline buffer. Assuming a lot depth of 242
feet and subtracting the 10-foot setback from the shoreline buffer and a minimum 20-foot setback from
the front property line, there would be approximately 62 feet of lot depth remaining for the structure.
This applicant has not demonstrated it is not possible to construct a structure in the area outside
of/landward of the required buffer. As such, the County finds that the subject lot does not qualify as
nonconforming under the first section of the definition.
The second section of the definition applies to legal lots of record that do not "...otherwise meet the
minimum lot size requirements as set forth in this program. "
In spite of the above language, the Shoreline Master Program (JCC 18.25) does not actually set forth
minimum lot size requirements. As such, the applicant suggests that the lot size issue is appropriately
dealt with through the Zoning code, citing JCC 18.25.500(1)(d):
"New residential development should be limited to densities that are consistent with the Jefferson
County Comprehensive Plan goals and policies, zoning restrictions, and this program. The density per
acre of development should be appropriate to local natural and cultural features. "
The above policy addresses residential densities within the shoreline jurisdiction, which is not at issue —
the parcel is already established and it is assumed that one single-family residence will be constructed in
accordance with the rural zoning designation. At issue is the location of the proposed residence on the
parcel rather than the residential density.
As such, the County finds that the second section of the definition addressing minimum lot size
requirements also does not apply, and the Gleeson parcel therefore does not meet the definition of
"nonconforming lot" as defined at JCC 18.25.500(1)(d).
Alternatively, the applicant requests that Jefferson County determine that the common setback
provisions for a non -conforming lot at JCC 18.25.270(5)(b) apply, such to allow the proposed
Gleeson home to be constructed closer to the shoreline.
JCC Section 18.25.270(5)(b) is titled "Nonconforming lots — Common Line Buffer", and states that
"For the purpose of accommodating shoreline views to be adequate and comparable to adjacent
residences, but not necessarily equivalent, the administrator may reduce the standard buffer for new
single-family residences on nonconforming lots consistent with the following criteria..." (Note: the full
citation includes the standard for accommodating new structures within 300 feet of adjacent residences
as cited in the applicant's letter).
Based on the finding above that the Gleeson parcel does not meet the definition of a nonconforming lot,
the County finds that the common line setback provision at JCC 18.25.270(5)(b) is not applicable.
In summary, the applicant has not demonstrated that the existing plat of Tala Shores established a
shoreline buffer or setback, or that the Gleeson parcel is a nonconforming lot under JCC 18.25. As
4
such, the Department finds that the currently required 150-foot marine buffer plus 10-foot
building setback applies in accordance with JCC 18.25.270(4).
Appeal rights:
The requester is hereby notified that this Code Interpretation may be APPEALED to the County's
HEARING EXAMINER by complying with the APPEAL PROCESS described in the County Code at
JCC § 18.40.390.
Please feel free to contact me at 360-379-4488 should you have any questions.
Sincerely,
David Greetham,
Planning Manager
Jefferson County Department of Community Development
5
c R
Dennis D. Reynolds Law Office
200 Winslow Way W. Suite 380 Bainbridge Island, WA 98110
Land Use • Fisheries Law • Environmental Law • Business Law • Indian Law • Real Estate
206.780.6777 206 780 6865 fax ww.ddrlaw.com
July 24, 2017
By email (dgreethamkco.Lefferson wa us) and United States Mail
David Greetham
Planning Manager
Jefferson County Department of Community Development
621 Sheridan St.
Port Townsend, WA 98368
Re: Gleeson — Official Code Interpretation Request
Dear Mr. Greetham:
-wow colhv r`�l
Pursuant to the Unified Development Code, Jefferson County Code Section 18.40 please
treat this letter as a request for an Official Code interpretation. The request in made on behalf of
Michael and Victoria Gleeson. The property address is 234 Tala Shores Drive, Port Ludlow,
Washington 98365, Lot 33 of the Plat of Tala Shores, Jefferson County Parcel No. 998200130.
Proposed Interpretation.
(1) Interpret the Jefferson County shoreline use regulations as to buffers and setbacks,
including allowed deviations for the standard 150-feet buffer, as "trumping" other
provisions of the Uniform Development Code, e,g., the Critical Areas Ordinance. See
JCC § 18.25.270(4)(a)(b) provisions.
(2) Under the circumstances, recognize the setback established by a prior plat approval as
falling within shoreline policies, JCC§ 18.25.070(1)(c) ("The County should
recognize and honor buffers and setbacks established by existing plat...." and
requirements, JCC § 18.25.270(4)(f) (The County shall recognize and apply a buffer
established by an existing plat....). The requested interpretation would be such that
that the setback established by approval of a plat is controlling and considered vested
against the new shoreline regulations found in JCC Chapter 18.25.
(3) Alternatively, determine that the Gleeson parcel is a non- conforming lot as defined
by JCC§ 18.25.100 (14) (h).
(4) Alternatively, determine that the common setback provisions for a non -conforming
lot, JCC § 18.25.270(5)(b) apply, such to allow the proposed Gleeson home to be
constructed closer to the shoreline.
[90381-1]
July 24, 2017
Page 2
Applicable Facts.
The Gleeson lot is approximately one-half acre. It is waterfront. The Gleeson's desire to
construct a modest single-family home on the lot approximately 50 feet from the top of the bank -
water line. Presumably, the ordinary highwater mark would be at the toe of the slope, if not
further down the beach. The parcel is zoned Rural Residential-5 — one (1) dwelling unit per five
acres ("RR-5"). The Shoreline environmental designation is Shoreline Residential ("SR"). The
lot is nonconforming as to its size under applicable zoning
The parcel is 75 feet wide and 242 feet long. The prior owners contemplated building a
residence with a 50-foot setback from the bluff, which was the appropriate setback at the time.
The proposed home would be about 50-feet wide. A four (4) foot deck would be on one side of
the home.
The prior owners applied for a three -bedroom septic permit in April 1990 signed off by
the Jefferson County Health Department in January 1993. From the enclosed drawing, Exhibit
1, it appears that the septic system is located approximately 132 feet from the bluff and
approximately 100 feet from an existing water well on the property. The prior residence was not
constructed.
The Gleeson property is part of the Plat of Tala Shores approved on September 7, 1962.
See Exhibit 2. The plat has been built out such that all the homes have the same approximate
setback from the bluff.
There are existing homes on each side of the Gleeson parcel. These homes sit
approximately 60 feet from their respective bluff tops, but that needs to be precisely confirmed
prior to building permit submittal. The home to the south is about six feet from the mutual
property line; the home to the north is about fifteen feet from the mutual property line. There is
thus no problem meeting the 300-foot requirement.
Specification of Code to be Interpreted.
Uniform Development Code, Chapter18.25, Shoreline Master Program, JCC
§ 18.25.270(4)(a)(b); JCC§ 18.25.070(1)(c); JCC § 18.25.270(4)(f); JCC§ 18.25.100 (14) (h) and
JCC § 18.25.270(5)(b).
Necessity of Interpretation.
The JCSMP affects a significant number of shoreline property owners, many who own
undeveloped lots. The current shoreline regulations are relatively new, and there is little current
experience applying the new regulations to guide applicants, staff or property owners.
The public would benefit from a Code interpretation as to how to apply the shoreline
buffers. Jefferson County plans under the Growth Management Act, RCW 36.70A. One GMA
[90381-11
July 24, 2017
Page 3
policy is to ensure predictability and fairness in the permitting process. See RCW
36.70A.020(5). The requested interpretation would implement this policy.
Reasons and Justification for Requested Interpretation.
The proposed residence is within 300 feet of a residence constructed prior to adoption of
the JCSMP which is already encroaching on the standard buffer. Under JCC
§ 18.25.270(5)(b)(i), (ii) the Director "may reduce the standard buffer for a new single-
family...". Actually, the Director is required to do so. See JCC § 18.25.270(5)(b)(ii) (for
"existing homes on both sides" of non -conforming lots "...the buffer shall be determined as..."
(Emphasis supplied). Then see Figures 18.25.270(l); (2); and (3), attached (Exhibit 3).
How to deal with a non -conforming lot under the Zoning Code is controlled by the
JCSM. JCC Section 18.25.500(1)(d) provides that new residential development "...should be
limited to densities that are consistent with the Jefferson County Comprehensive Plan goals and
policies, zoning restriction, and this program." Thus, there is the tie-in between the Zoning Code
and the SMP.
The SMP states the word "should" means that "...the particular action is preferred..."
Property rights must be factored in. Single-family homes are a preferred use under the
Shoreline Management Act and JCSMP. Thus, interpretation of these laws must be sensitive to
the right to use and develop shoreline property for residential use, a "light hand" approach, since
interpretations must not offend constitutional protections.
On the last point, in Washington state, the right to use and develop land is fundamental
and protected under both the Washington State and Federal Constitutions. As the Washington,
Supreme Court has stated:
Property in a thing consists not merely in its ownership and
possession, but in the unrestricted right of use, enjoyment and
disposal. Anything which destroys any of these elements of
property, to that extent destroys property itself. The substantial
value of property lies in its use. If the right of use be denied the
value of the property is annihilated and ownership is rendered a
barren right.
Manufactured Housing Cmtys. v. State, 142 Wn.2d 347, 364, 13 P.3d 183 (2000) (quoting
Ackerman v. Port of Seattle, 55 Wn.2d 400, 409, 348 P.2d 664 (1960) (emphasis added).
Additionally, the Washington Supreme Court has long -recognized that "[a]lthough less
than a fee interest, development rights are beyond question a valuable right in property." West
Main Associates v. Bellevue, 106 Wn.2d 47, 50, 720 P.2d 782, (1986). "Despite the expanding
power over land use exerted by all levels of government, `[t]he basic rule in land use law is still
[90381-11
July 24, 2017
Page 4
that, absent more, an individual should be able to utilize his own land as he sees fit."' Id. (citing
Norco Constr., Inc. v. King County, 97 Wn.2d 680, 684, 649 P.2d 103 (1982)).
Property rights are not "poor relations" of other Bill of Rights guarantees. See Dolan v.
Tigard, 512 U.S. 374, 392 (1994).
The Shoreline Management Act (SMA) unequivocally states that coordinated planning is
necessary in order to protect the public interest associated with the shorelines of the state while,
at the same time, recognizing and protecting private property rights consistent with the
public interest. RCW 90.58.020 (emphasis supplied). The SMA also states that "the Legislature
further finds that much of the shorelines of the state and the uplands adjacent thereto are in
private ownership...." RCW 90.58.020 (emphasis supplied).
The SMA declares that it "is the policy of the state to provide for the management of the
shorelines of the state by planning for and fostering all reasonable and appropriate uses." See
RCW 90.58.020. The policy of the SMA as set forth in RCW 90.58.020 strikes a balance
between protection of the shoreline environment and reasonable and appropriate use of the
waters of the state and their associated shoreline. See Nisqually Delta Ass'n v. City of DuPont,
103 Wn.2d 720, 727, 696 P.2d 1222 (1985).
The balance envisioned by the SMA anticipates that there will be some impact to
shoreline areas by development or continued use, repair and maintenance of existing structures
or developments. The SMA explicitly states "[a]lterations of the natural conditions of the
shorelines and shorelines shall be recognized by the department." RCW 90.58.020. (Emphasis
supplied.) Single-family homes are a priority use of the shorelines which falls within allowed
alterations of the shorelines.
Government cannot extinguish a right or liberty by merely enacting a law that purports to
subordinate that right or liberty. Chelan Basin Conservancy v. GBI Holding Co., No. 93381-2,
slip op. at 20 (July 6, 2017) (quoting Freedom Found. v. Gregoire, 178 Wn.2d 686, 706, 310
P.3d 252 (2013) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 L. Ed. 60 (1803)).
The $651.00 application fee is submitted with the hard copy of this letter. If you have
questions, or require clarification regarding the requested interpretation, please get back to me.
Thank you for your kind attention to these comments and enclosures
Very truly yours,
DENNIS D. REYNOLDS LAW OFFICE
Q�-
Dennis D. Reynolds
Enclosures
cc:
DDR/jb
[90381-11
Gleeson — Code Interpretation
Exhibit 1
A
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Gleeson — Code Interpretation
Exhibit 2
598981 PGS = 2 SWD
04/29/2016 11:69 An $74.00 FIRST AnERICAN TIRE
Jefferson County WA Auditor's 0,floe - Rose Ann cerroli, Auditor
mill l��.rait IYI�I l'1�11 ill Y YtiL'+L'i1111i1G�+ f}1h1Wr� 11111
When recorded return to:
Michael F. Gleeson
Victoria E. Gleeson
1229515th Ave SW
Burlen, WA 99146
Filed for Record at Request of
All About Escrow, Inc
Escrow Number. 16.0092
Statutory Warranty Deed O
THE GRANTORS Sarah F. Blossom and James K. Hattrfck, wife and h an ' consideration of
TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDE ON i conveys and
warrants to Michael F. Gleeson and Victoria E. Gleeson, husband a d ife, llowin described real
estate, situated in the County of Jefferson, State of Washington:
Abbreviated Legal:
Lot 33 Tale Shores #1
Tax Parcel Number(s): 998200130
Lot 33, Tala Shores, as per plat recorded in Volume 4 of Plats, p ecords of Jefferson County,
Washington.
Situate in the County of Jefferson, State of Washing
SUBJECT TO: SEE EXHIBIT "An ATTAC�TO MADE A PART HEREOF.
Dated April 18, 2016
Sarah F. Blossom _ Jam c
O
STATE OF WashiD t n
COUNTY OF Jefferson ) SS:
I certify that I kno or a ct vidence that Sarah F. Blossom and James K. Hattrick
are the persons who be me, and said persons acknowledged that they
signed this ins en 1 ge it to be their tree and voluntary act for the
USES and Dt1TDOseS entin this inctn nnnnr
Dated: 22. (.
ruliblfZ�
`�vvS PH A , :;�� Nolary Public in and for the State of Washington
;R1i$slory. Q'� Residing at _Qd f T Ti7u s
a f� M appointment expires: S
My I� _o oG -201et
s .0. ~
749691 125286 4'4/29/2016 3,aZ.22*
598981 Page 2 of 2 04/2912016 11:69 AM
EXHIBIT "A"
SUBJECT T0:
I. Right of the public to make necessary slopes for cuts or fills upon said premises' a original
reasonable grading of streets, avennes,'alleys and roads, as dedicated in
2. Right of the public to drain all streets and roads, over and across any o ter
might take a natural course after the street and roads are graded as {a d
3. Rights of the general public to the uu whicted use of all the le body of water
not only for the primary purpose of navigation, but also fur lading (but not
limited to) fishing, boating, bathing, swimming, water k..ng o fated recreational
purposes, as those waters may affect the tidelands, ds o' g uplands and whether
the level of the water has been raised naturally or daffy maintained or fluctuating level,
all as finther defused by the decisional law of the (Aff I of the premises subject to such
submergence)
4. Any claim to (a) ownership of or ri minerals and similar substances, including but not
limited to ores, metals, coal, lignite, oil, clay, rock, sand, and gravel located in, on,
or sander the Land or produced from&t&hwthen such ownership or rights arise by lease,
gram, exception, conveyance, res. e; and (b) any rights, privileges,
immunities, rights of way, andtherewith or appurtenant thereto, whether or
not the interests orrights ex inrin the Public Records.
178477
/.?-vb1 4 p949
TA LA SHORES NO. 2
PORTION OF GOVERNMENT LOTS I AND 2, SECTION Z2, T28N, R/E, W.M.
✓EFFERSON COUNTY, WASHINGTON
7Rua POrNr
S89.79'42'E 36Is.99 vefG/NNroo_'. I
DESCRIPTION
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This Plat of ra/a Shores No Z rs / utedm Govern•
men/ Lots I and 2 of Section 22. Tmvhsh o M North.
39u7
Range / East. WAL, and embraces the foll—hy de
scribed tract of 1aml; BoVr rjg a/ the ser im corner
25
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0967 Ac
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on a 63000 f/ radius curve to the left 415.4 fl ,
39147
;
thence S43 39'13'E 79.11 f1 to the south line of Go'rrn-
man/ Lot Z m Said Seek.? 72; thence a/ong floe south
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said Gownunenl Lot 1; theme A.V said north h.,
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4' � 66870
y TREASURER$ CERTIFICATE
/�GK tf!NT easur e, of Jefferson
County, 6ashiag/on, ob hereby certify that al/ Ares
oe, the above described plooerlv hair been pare up
lband including The Year 1961- /
7RAA uarR P'Jf!/eRl�0.N ConNIY
98.49l1'E
1i37o`
SCALE: r-100'
DA71IM: Wuhiagfon State
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DEDICAT/ON
KNOW ALL MEN Br THESE PRESENTS, /All Pope
Whol. /n., a cor ration —ga—zed and exislir y under
the laws of the Stale of Califon" and having its
principal plare of business in the Ci/y ofSan fray mV.
owner in fee rmpk of the fiatl of lend in the Plot
of ta4 Shores No. Z, hereby d dare this pro/ and
dedicate to the use at the public forever all skeels
and roads shown hereon, and the use thereof for
any and all public purpases Trot inconsistent with public
highway !poses; also Me righl to make all necessary
slopes for cuts and fills upon the lots shown hereon
it /he &Wmal reasonable yV dmy of the street$ and
roads shoan hereon; also the right to o'non a//x1meh
and roads over and across airy /o1 of /ols where water
mighl lake a ha/u el course afler the slree/a and
roads are praded-
1N PYMNESS WHEREOF we /r+ve hereunto set ow ha7ds
and seal ibis Id-- day 0/ - AO IY64
/n preserve of� P @ T44 BOT INC
AM
aeCRer
ACKNOWLEDGAfENr
STATE ar CA411'01 NM SS
Cltyand County of Sao, rancrsco
On thrx0f- day of_r�M�AK _ • AO 19641 beAvr
f me
Per 1/y PFaared _ _PkArpid d,d w- - and
_ S$Er,4UT _ to nu known & be the ve•4
p etden! and secretary, respechb{/y, of Pbpe $
Talbot, hic, the corpnrat/L? that ereculed the wd4hi
and foregoe7g ins/rumen/, ackrrowledged.said instrument
to be the free and v 1t ryacl and deed of said
corparation for Mc uses and purposes lhemm mentioned,
and on oath stated Maf they wen Mtharmed to
execute said instrument and that the sea/ affixed is
the corporate seal of said co porehbn.
1N /Y/TNESS fyN£REOF, 1 A.- hereon!. set my hand
."e affixed my official sea/ the day andyear first
above Wrrtlen. _ n
rr.rARY fV0a1C / N fOR rNa ar4 re Or
CALnfORN/A, R{S1O/ AT SwR �RAnerree
MyCComhnssion expires M
A�'_d y ofdaypfT _, 191C7
SORVEVOR.S CERr/F/cArE
John O ✓ohnsan, CmI Eng! ser and Land Surveyor,
hereby cerf/fy that this Plat of ra/a Shoves No 2 is based
a? an aehra/ survey and "be,i'mon of Sec/ion 22.
rownshia 28 North, Range 1 East, WM. Mat the courses
and d sfancu are shown herecn m-rcr1/y, thafi//�N.
umeols and /of corners have been set as shown, /;?
compliance with the promwons ofs/atu/e wid of%Yhp"
APPROVALS
Erammed and approved MisA��dayfoj✓�y¢ __ /964
C6ur1i✓ 1�W1��
E2aminedand apprmrd Misr" day of-{JJ tL- _ _ 1964
au B.AR. of C. >Y CMiI/niSrOMiRS _
RECORDING CERTIFICATE
i'Med for record at Me request of.IO.&Mse at kS
mrw/es pasl fj- oclock� M m this 4�ay of
4 A 1964, and recorded on Page
Cain� Vo/ m _¢ of Plats, records orJefrerson
/y, Wash glon
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Gleeson — Code Interpretation
Exhibit 3
Jefferson County Code 18.25.270 Critical areas, shoreline buffers, and ecological protection. Page 8 of 10
common line drawn between the nearest corners of each adjacent residence (see Figure
18.25.270(1)), or (B) a common line calculated by the average of both adjacent residences'
existing setbacks (i.e., (y+z)/2=x buffer; see Figure 18.25.270(2)).
(iii) Existing Home on One Side. Where there is only one existing residence adjacent to the
proposed residence, the common line buffer shall be determined as the greater of either (A)
a common line drawn between nearest corner of the foundation for the adjacent residence
and the nearest point of the standard buffer on the adjacent vacant lot (see Figure
18.25.270(3)), or (B) a common line calculated by the average of the adjacent residence's
setback and the standard buffer for the adjacent vacant lot (i.e., (y+z)/2=x buffer; see
Figure 18.25.270(4)).
(iv) Figures 18.25.270(1) through (4) illustrate examples of the common line buffer
allowance. When discrepancy between the text and the graphic exists, the text shall govern.
Graphics are for illustration only, buffer shall be measured perpendicularly from the ordinary
high water mark as per this section.
Figures 18.25.270(1) —(4)
Figure 18.25.270(1)
F.ntnq -V�Onwn,N H—
I
. ---------- x
�- ~ �� - I �— •n„��Kir Ftwxn
Figure 18.25.270(2)
The Jefferson County Code is current through Ordinance 6-16, passed November 3, 2016.
Jefferson County Code 18.25.270 Critical areas, shoreline buffers, and ecological protection. Page 9 of 10
I
I
I
I
E.:svy kat I
(oMom�q I/wY< I
FI
E.nlrg Nun ----Homy Hw.<
Pegn%<n No�S
-------------
; I
1
❑
810. M Xll
SR etn<IUH W•.11
Figure 18.25.270(3)
I I
Pl�,«,"_ I VAfAN1101
EX�uX+y Nm.
I
'
.tnrw:t^a•� I .^o.Nm 10tIW.MI
i
Figure 18.25.270(4)
Pt(pn H_
I
.._------1
;❑I
..........., I
i❑ i I EUYawIetn.x
L.. ... I
t
%,
VACANY VA
h ll-daV &Mn' X
S.tv< It.)H W%'I
(c) Nonconforming Lots — Development Requiring a Variance. Development on nonconforming
lots that do not meet the requirements of subsection (5)(a) or (b) of this section require a
shoreline variance.
(d) Water -Oriented Uses/Development. When otherwise consistent with this program and
Chapter 18.22 JCC, the following water -oriented uses/developments may be permitted within a
shoreline buffer without a shoreline variance. The amount and extent of buffer modification shall
The Jefferson County Code is current through Ordinance 6-16, passed November 3, 2016.
David Greetham
From: Dennis D. Reynolds Law Office <dennis@ddrlaw.com>
Sent: Tuesday, July 25, 2017 3:21 PM
To: David Greetham
Cc: Philip Hunsucker; Jon
Subject: RE: Gleeson - Code Interpretation Request
Guys, a minor supplement: the deck would wrap around the home, in the front and part of the side. It would match up
with the adjacent homes' s front decks.
Dennis D. Reynolds Law Office
200 Winslow Way W. Suite 380
Bainbridge Island, WA 98110
www.ddrlaw.com
206.780.6777, tel / 206.780-6865, fax
206.604.5739, cell
This message and any attachments hereto are intended only for use by the addressee(s) named herein. It may contain confidential, proprietary or legally privileged
information. If the reader of this message is not the intended recipient, you are hereby notified that any copying, distribution or dissemination of this communication, and any
attachments hereto, is strictly prohibited. If you have received this communication in error, please immediately notify sender and permanently delete the original message
from your computer and delete any copy or printout thereof. We reserve the right to monitor all email communications. Although we believe this email and any attachments
are virus -free, we do not guarantee that it is virus -free, and we accept no liability for any loss or damage arising from its use. Thank you for your courtesy and cooperation.
From: Jon Brenner [mailto:jon@ddrlaw.com]
Sent: Monday, July 24, 2017 4:36 PM
To: dgreetham@co.jefferson.wa.us
Cc: 'Dennis D. Reynolds Law Office' <dennis@ddrlaw.com>
Subject: Gleeson - Code Interpretation Request
Dear Mr. Greetham,
Please find attached a Code Interpretation Request for Gleeson. A hard copy will follow in US Mail.
Sincerely,
Jon Brenner
Paralegal
Dennis D. Reynolds Law Office
200 Winslow Way West, #380
Bainbridge Island, WA 98110
(206) 780-6777, tel / (206) 780-6865, fax
This message and any attachments hereto are intended only for use by the addressee(s) named herein. It may contain confidential, proprietary or legally privileged
information. If the reader of this message is not the intended recipient, you are hereby notified that any copying, distribution or dissemination of this communication, and any
attachments hereto, is strictly prohibited. If you have received this communication in error, please immediately notify sender and permanently delete the original message
from your computer and delete any copy or printout thereof. We reserve the right to monitor all email communications. Although we believe this email and any attachments
are virus -free, we do not guarantee that it is virus -free, and we accept no liability for any loss or damage arising from its use. Thank you for your courtesy and cooperation
ON cow DEPARTMENT OF COMMUNITY DEVELOPMENT
W621 Sheridan Street, PortTownscnd, WA 98368
Tel: 360.379.4450 1 Fax: 360.379.4451
Web: www.cojefferson wa.uscommuni develo t
E-mail: dcd (uco.jefferson.wa.us
I N00O
AUG 3 1 2017
PERMIT APPLICATION
Steps in the Permit Process: ( � ' 1 f ( - t) EMQN MUNTYDIM
-Review application checklist to ensure all information is completed prior to submitting application.
-Make sure septic has been applied for and water availability has been proven.
-Make an appointment to meet with the Permit Technician by calling 360-379-4450.
-This is not a standalone application; it must be accompanied by a project specific supplemental application.
-Fees will be collected at intake. Additional fees may apply after review and payment is required before permit is issued.
For Department Use Only Building Permit #
Related Application #s: MLA #
Site Information
Assessor Tax Parcel Number: 998200130
Site Address and/or Directions to Property:
Access (name of street(s)) from which access will be gained:
Present use of property:
Description of Work (include proposed uses):
Wastewater - Sewage Disposal
This property is served by Port Townsend or Port Ludlow sewer system?
YES_ NO
If not served by sewer identified above, identify type of septic system below:
Type of Sewage System Serving Property:
Septic Septic Permit #:
Community Septic Name of System:
Case #:
Are other residences connected to the septic system?
Additions or repairs to sewage system:
Is it a complete or partial system installation: Complete
Partial
Has a reserve drainfield been designated? Yes
No
Date of Last Operations & Maintenance check:
Attach last report to application
Describe or attach any drainfield easements, covenants or notices on title, which may impact the property:
PI k-
The authorized agent/representative is the primary contact for all project -related questions and correspondence. The County will mail
/ e-mail requests and information about the application to the authorized agent/representative and will copy (cc) the owner noted
below. The authorized agent/representative is responsible for communicating the information to all parties involved with the
application. It is the responsibility of the authorized agent/representative and owner to ensure their mai Ibox accepts County email (i.e.,
County email is not blocked nr cant to "it nlr mnilll
Applicant/Property Owner Information
Property Owner:
Name: Michael Gleeson
Address: 12295 - 15th Avenue SW, Burien, WA 98146
Phone #: E-mail Address: Mgleeson61@yahoo.com
Please contact Authorized Agent/Representative with project info. (select only one).
Property Owner Signature: tutmlij Date: 68
Note: For projects with multiple owners, attach a separate sheet with each owner(s) information and signatures.
Applicant: Authorized Agent/Representative (if other than owner)
Name: Dennis D. Reynolds
Address: 200 Winslow Way West, Suite 380 Bainbridge Island, WA 98110
Phone #: 206-780-6777 E-mail Address: dennis@ddrlaw.com
Professional: Is this an Authorized Agent/Representative for this project? NO YES
Engineer Architect Surveyor Contractor Consultant
Name: License #
Address:
Phone #: E-mail Address:
Professional: Is this an Authorized Agent/Representative for this project? NO YES
Engineer Architect Surveyor Contractor Consultant
Name: License #
Address:
Phone #: E-mail Address:
Professional: Is this an Authorized Agent/Representative for this project? NO YES
Engineer Architect Surveyor Contractor Consultant
Name: License #
Address:
Phone #: E-mail Address:
By signing this application form, the owner/agent attests that the information provided herein, and in any attachments, is true and
correct to the best of his or her knowledge. Any material falsehood or any omission of a material fact made by the owner/agent with
respect to this application packet may result in making any issued permit null and void.
I further agree to that all activities I intend to undertake or complete associated with this permit will be performed in compliance with
all applicable federal, state and county laws and regulations and I agree to provide access and right of entry to Jefferson County and its
employees, representatives or agents for the sole purpose of application review and any required later inspections. Applicant may
request not: of the Co ty' , intent to enter upon the property for visits related to this application and subsequent permit issuance.
Signature:f �--- — Print Name: Dennis D. Reynolds Date: 8/31/17
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z 13AUG 31 p(�'/
4WFERSON CC:OUNI'1`ocD
BEFORE THE JEFFERSON COUNTY
OFFICE OF THE HEARING EXAMINER
MIC14AEL and VICTORIA GLEESON,
Appellants,
V.
JEFFERSON COUNTY, acting through its
Department of Planning and Community
Development,
No.
APPEAL OF ADMINISTRATIVE
DECISION
Pursuant to Jefferson County Code Section 18.40.390 the Dennis D. Reynolds Law
office submits an appeal to the Jefferson County Office of Hearing Examiner on behalf of
Michael and Victoria Gleeson. The decision appealed is a Type II permit decision,
comprising an Official Unified Development Code Interpretation. The decision appealed is
dated August 23, 2017.
Mr. and Ms. Gleeson own a waterfront lot of approximately one-half acre located in
unincorporated Jefferson County. The property address is 234 Tala Shores Drive, Port
Ludlow, Washington 98365, Lot 33 of the Plat of Tala Shores, Jefferson County Parcel
No. 998200130. The lot is approximately one-half acre. The Gleeson's desire to construct a
modest single-family home on the lot approximately 50 feet from the top of the bank -water
line in line with other homes in the neighborhood. The parcel is zoned Rural Residential-5 —
APPEAL OF ADMINISTRATIVE DECISION - 1 of 6
[90381-11
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 7$0-6777
(206) 7$0-6865 (Facsimile)
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one (1) dwelling unit per five acres ("RR-5"). The Shoreline environmental designation is
Shoreline Residential ("SR"). The lot is nonconforming under applicable zoning.
The parcel is 75 feet wide and 242 feet long. The proposed home would be about 50-
feet wide. An attached four (4) foot deck would in front of the home and wrap around one
side. The property has an historic approved drain field mid -way down its length.
The Gleeson property is part of the Plat of Tala Shores approved on September 7,
1962. See Exhibit 2 to Request for Code Interpretation, by reference incorporated into this
appeal The plat has been built out such that all the homes have the same approximate setback
from the bluff, on average, 50-60 feet. See Topographic Survey dated August 23, 2017,
attached hereto as Exhibit A, by refrence made part of this appeal.
There are existing homes on each side of the Gleeson parcel. These homes sit
approximately 60 feet from their respective bluff tops. The home to the south is about six feet
from the mutual property line; the home to the north is about fifteen feet from the common
property line.
Decision Being Appealed and Identification of the Application
Which is the Subject of the Appeal
The Code Interpretation is annexed hereto as Exhibit B, by reference made part of this
appeal. ("the Decision"). The Request for Interpretation dated July 24, 2017, is annexed
hereto as Exhibit C, by reference made part of this appeal.
Name, Address and Phone Number of the Appellants and their Interest in the Matter
Michael and Victoria Gleeson reside at 12295, 15th Avenue SW, Burien, Washington
98146. Their telephone number is: 206-300-2493. The Gleeson's own the property subject to
the Code Interpretation. Their legal representative in this is matter is Dennis D. Reynolds of
OFFICE
APPEAL OF ADMINISTRATIVE DECISION - 2 of 6 200 WinslowNis D. rrroLns LAw Suite
380
200 Winslow Way West, Suite 380
[90381-1] Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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the Dennis Reynolds Law Office, located at 200 Winslow Way West, Suite 380, Bainbridge
Island, Washington, 98110. Mr. Reynolds' telephone number is: 206-780-6777.
Appellants' Statement Describing Standing to Appeal
The Gleeson's submitted the Code Interpretation. The Decision affects their ability to
develop their waterfront property with a single-family home by imposing a legally and
factually unsupported 150 foot "no build" setback or buffer from the ordinary high water
mark. Appellants are prejudiced or likely to be prejudiced by the County's Decision if no
relief is granted. A ruling in favor of Appellants will substantially eliminate or redress the
prejudice that the Decision has caused, or will likely cause them, for which review and
relief is requested.
Specified Errors (Specific Reasons why the Appellants believe the Decision is Wrong)
(1) Vested Status. The County's shoreline use regulations, JCC 18.25.270(1)(c)
and JCC 18.25.270(4)(t), direct the County to "recognize and apply a buffer established by an
existing plat..."). The Code Interpretation Decision, p. 3, acknowledges these Code
requirements, but erroneously fails to apply them, on the basis the applicant "has not
presented evidence that the plat had a specific buffer or setback established." With due
respect, the proof is the built condition set by building permits issued by Jefferson County
within the Plat of Tala Shores. This information is public record, easily available to the
County since it is the County's own information, and could have been provided by Appellants
if requested. As the Decision acknowledges "...existing homes in the 1962 Plat of Tala
Shores have generally been constructed at a lesser shoreline setback than the currently
required 150-foot buffer." Decision, p. 3. The Decision is procedurally flawed, ignores
APPEAL OF ADMINISTRATIVE DECISION - 3 of 6
[90381-1]
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206)7�0-6777
(206) 7 0-6865 (Facsimile)
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substantial evidence in the public record, and erroneously fails to apply the actual facts to the
law.
(2) Common Boundary Setback. The Decision erroneously fails to answer one of
the Code Interpretation Requests made by Appellants relating to the Code's "common
boundary setback" provisions. This is procedural error. Appellants requested:
Alternatively, determine that the common setback provisions for a non -conforming
lot, JCC § 18.25.270(5)(b) apply, such to allow the proposed Gleeson home to be
constructed closer to the shoreline.
(Interpretation Request, p. 1)
The Examiner should decide the question. Common setback provisions apply to
nonconforming lots when an adjacent shoreline parcel is already developed. See JCC
§ 18.25.270(5)(b). In order to maintain views that are comparable for residences, a special
buffer for a new single family residence is established if. (a) the proposed residence is within
300 feet of a residence constructed prior to adoption of the JCSMP which is already
encroaching on the buffer; or (b) when there are houses on both sides of the build site, the
imaginary line between the nearest corners of the existing buildings, or the average distance
of the setbacks of the existing buildings, whichever calculation is larger. JCC
§ 18.25.270(5)(b)(i), (ii). See Figures 18.25.270(1); (2); and (3), attached (Exhibit 3) to Code
Interpretation Request, by reference made part of this Appeal.
The referenced regulations state the Director "may reduce the standard buffer for a
new single-family..." but then states for "existing homes on both sides" of a non -conforming
lots "...the buffer shall be determined as...." See JCC § 18.25.270(5)(b)(ii) (emphasis
supplied). This language is mandatory.
(3) Nonconforming Lot. The Decision erroneously interprets and applies the Code
as to non -conforming lots. Those terms are defined as follows in the JCSMP:
w OFFICE
APPEAL OF ADMINISTRATIVE DECISION - 4 of 6 200 WiNisnslow
sl w Way DS West,
Site 380
200 Winslow Way West, Suite 380
[90381-1] Bainbridge Island, WA 98110
(206)780-6777
(206) 7$0-6865 (Facsimile)
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"Nonconforming lot" means a legal lot of record in
existence prior to the effective date of this program and any
amendments thereto, on which it is not possible to construct a
structure outside of/landward of the shoreline buffer or which
does not otherwise meet the minimum lot size requirements as
set forth in this program. Depth of lot is measured as the
distance from ordinary high water mark to the inside edge of the
frontage setback."
JCC § 18.25.100(14)(h) (emphasis supplied).
Under the law, the word "or" is in the disjunctive, that is, the language is mutually
exclusive — one or the other. H.IS Dev., Inc. v. Pierce County ex rql. Dept of Planning &
Land Servs., 148 Wn.2d 451, 473 n. 95, 61 P.3d 1141 (2003) Here, the Gleeson lot does not
meet the minimum five acre lot size, and is thus a nonconforming lot. The Gleeson lot
continues to have a vested status for futurere development. See JCC Section 18.25.660(10(a)
DCD staff misinterprets or misapplies the JCSMP for the Gleeson proposal. DCD seems to
be saying that since a "building pad" is available landward of the "standard buffer," the lot is
not "nonconforming." This interpretation illegally ignores the alternative language that a lot
is non -confirming if it fails to meet the minimum requirements of the master program. In this
regard, JCC Section 18.25.500(1)(d) provides that new residential development "...should be
limited to densities that are consistent with the Jefferson County Comprehensive Plan goals
and policies, zoning restriction, and this program." This is the tie-in between the Zoning
Code and the SMP. The SMP states the word "should" means that "...the particular action is
preferred..."
Desired Outcome
Reverse the Administrative Decision and rule that Appellants are not bound by a 150-
foot shoreline buffer setback. Rule further that the Appellants are entitled to the benefit of the
Code's common setback provisions and/or the Code's recognition of the vested property
status of setbacks established by prior plat approvals or the Code's nonconforming lot
provisions.
OFFICE
APPEAL OF ADMINISTRATIVE DECISION - 5 of 6 200 WiNisnslow
sl w Way Ds LAw Suite
380
200 Wigslow Way West, Suite 380
[90381-11 Bainbridge Island, WA 98110
(206) 7 0-6777
(206) 7 0-6865 (Facsimile)
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The undersigned Appellant and his legal representative have read this appeal and
believe the contents to be true. The required appeal fee is tendered with this appeal.
DATED this 30th day of August, 2017.
DEAIX D. REYN D FFICE
By
Dennis D. Reynolds, WSBA #104762
Attorneys for Appellants Michael and Victoria
Gleeson
�-G
Michae eeson
Appellant
APPEAL OF ADMINISTRATIVE DECISION - 6 of 6
[90381-1]
DENNIs 1). REYNOLDs LAw OFFICE
200 Winslow Way West, Suite 380
Bainbri ge Island, WA 98110
(206) 7P0-6777
(206) 7 0-6865 (Facsimile)
Gleeson — Appeal
Exhibit A
------------L_ I�
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TALA SHORE s
---------------
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DEA £, To D E: Auyusf 22,217Topographic Survey
OEWGNED BY: NORTHWESTERN TERRITORIES, INC.
DRAWN RY: Ere E.,l..... - Len! 8REe.Yere - bRlegl 4
CXECNED BY: SGH DRDe1.RRIl.. leepeellee-...Elele Teed.. Mike Gleeson
REVIEW: OF CDNSI. PO0T ANC 1 V 1 I 117 SOOTH KAB00Y, B. WASNIROTOR 00302. OR) 451-BA01 �«, 234 Talc Shore Dr.
SNEET ] Df
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Gleeson — Appeal
Exhibit B
�;ON
JEFFERSON COUNTY
DEPARTMENT OF COMMUNITY DEVELOPMENT
621 Sheridan Street, Port Townsend, WA 98368 1 Web: www.co.iefferson.wa.uslcommunitydevelopment
Tel: 360.379.44501 Fax: 360.379.4451 j Email: dcd(oko.jefferson.wa.us
SquareONE Resource Center I Building Permits & Inspections I Development Review ( Long Range Planning
August 23, 2017
Dennis D. Reynolds
Dennis D. Reynolds Law Office
200 Winslow Way W., Suite 380
Bainbridge Island, WA 98110
RECEIVED
2 6 2017
-jennis D. Reynolds Law Oftioe
Re: Michael and Victoria Gleeson, regarding property at 234 Tala Shores Drive, Port
Ludlow - Request for Unified Development Code Interpretation
Dear Mr. Reynolds:
On behalf of Michael and Victoria Gleeson, and with payment of the amount owed pursuant to the
County's fee Ordinance, a request has been made for a Unified Development Code ("UDC")
Interpretation as is authorized by County Code § 18.40.350. This is the County's response to that
Request for a UDC Interpretation.
Ouestion(s) posed:
Based on our prior meetings, the Gleesons wish to construct a new single-family residence on Lot 33 of
the Plat of Tala Shores, Jefferson County Parcel No. 998200130, located at 234 Tala Shores Drive, Port
Ludlow. At issue is the applicable shoreline buffer and setback under Jefferson County Code (JCC).
The specific interpretation requests before the UDC Administrator are as follows:
Interpret the Jefferson County shoreline use regulations as to buffer and setbacks, including
allowed deviations for the standard 150-foot buffer, as "trumping" other provisions of the
Uniform Development Code, e.g., the Critical Areas Ordinance.
2. Under the circumstances, recognize the setback established by a prior plat approval as falling
within shoreline policies at JCC 18.25.270(1)(c) and 18.25.270(4)(f) (The County shall
recognize and apply a buffer established by an existing plat...). The requested interpretation
would be such that the setback established by approval of a plat is controlling and considered
vested against the new shoreline regulations found in JCC Chapter 18.25.
3. Alternatively, determine that the Gleeson parcel is non -conforming lot as defined by JCC
18.25.100(14)(h).
4. Alternatively, determine that the common setback provisions for a non -conforming lot at JCC
18.25.270(5)(b) apply, such to allow the proposed Gleeson home to be constructed closer to the
shoreline.
Why is a Code Interpretation appropriate for the questions posed
This Code Interpretation is appropriate in accordance with JCC 18.40.350 for the questions posed above
because such a "[UDC Code Interpretation] is intended to ... interpret proper classification of a use, or
interpret the scope or intent of the provisions of this code." The question posed by the Gleesons boils
down to "can a single-family residence be constructed approximately 50 feet from the top of bluff,
which is closer to the shoreline than the currently required 150-foot buffer plus 10-foot construction
setback?"
What sections of the current code are being interpreted
The applicant has requested interpretation of Uniform Development Code, Chapter 18.25, Shoreline
Master Program, JCC 18.25.270(4)(a)(b); JCC 18.25.070(1)(c); JCC 18.25.270(4)(f); JCC
18.25.100(14)(h) and JCC 18.25.270(5)(b).
Summag of relevant facts
1. The Gleeson lot is a shoreline parcel, approximately one-half acre in size.
2. The parcel is zoned Rural Residential (RR-5), one dwelling unit per five acres.
3. The Shoreline environmental designation is Shoreline Residential (SR).
4. The parcel is 75 feet wide by 242 feet long.
5. The proposed residence would be about 50 feet wide with a four -foot wrap around deck on the
front and side, which would line up with the adjacent homes on either side (presumed to be
approximately 60 feet from top of bluff, but not precisely measured).
6. The prior owners applied for a septic permit in 1990, signed off by Jefferson County Health
Department in 1993. The septic system is located approximately 132 feet from the top of
bluff and 100 fee from an existing water well on the property.
7. The Gleeson property is in the Plat of Tala Shores, approved in 1962. The plat is mostly
built out, with a similar setback from all homes to the top of bluff.
Pa
Conclusion:
Gleeson Shoreline Buffer Interpretation
Items in bold below are listed in order of the applicant's questions posed (pp. 1-2 above).
The applicant requests that Jefferson County determine that shoreline buffers and setbacks,
including allowed deviations from the standard 150-foot buffer, `trump" other provisions of the
Uniform Development Code.
JCC 18.25.270(4)(a) and (b) provide direction as to when the Shoreline Master Program shall govern.
Specifically, subsection (a)(i) states "All provisions listed in subsections (4)(b) through (1) and (5(a)
through (d) of this section (e.g., building setback, buffers, CASPs, reasonable use, nonconforming lots,
water -oriented use/development) and provisions found in JCC 18.25.660 (i.e., nonconforming
development), shall be governed by this program and not Chapter 18.22 JCC; and... ".
Subsection (b) states "In the event development of performance standards in Chapter 18.22 JCC are
inconsistent with standards in this program, this program shall govern. "
This code interpretation relies on JCC 18.25 to govern in accordance with the above language.
The applicant requests that Jefferson County recognize the setback established by a prior plat
approval, in accordance with the policies and regulations at JCC 18.25.270(1)(c) and
18.25.270(4)(f).
Per the applicant, "the requested interpretation would be such that the setback established by the
approval of plat is controlling and is considered vested against the new shoreline regulations found in
JCC Chapter 18.25."
Subsections (1)(c) and (4)(0 direct the County to "recognize and apply a buffer or setback established
by an existing plat...". While existing homes in the 1962 Plat of Tala Shores have generally been
constructed at a lesser shoreline setback than the currently required 150-foot buffer, the applicant has not
presented evidence that the plat had a specific buffer or setback established. In lieu of such evidence, the
County finds that the 150-foot buffer and 10-foot building setback as established in the 2014 Shoreline
Master Program apply to the Gleeson parcel.
Alternatively, the applicant requests that Jefferson County determine that the Gleeson parcel is a
non -conforming lot as defined by JCC 18.25.100(14)(h).
In order to determine if the Gleeson lot is nonconforming, it is important to look at the definition at JCC
18.25.100(14)(h):
"'Nonconforming lot' means a legal lot of record in existence prior to the effective date of this program
and any amendments thereto, on which it is not possible to construct a structure outside of/landward of
the shoreline buffer or which does not otherwise meet the minimum lot size requirements as set forth in
this program. Depth of lot is measured as the distance from ordinary high water mart to the inside edge
of the frontage setback. "
3
Under the first section of the definition, the applicant must demonstrate that it is not possible to
construct a structure outside of/landward of the 150-foot shoreline buffer. Assuming a lot depth of 242
feet and subtracting the 10-foot setback from the shoreline buffer and a minimum 20-foot setback from
the front property line, there would be approximately 62 feet of lot depth remaining for the structure.
This applicant has not demonstrated it is not possible to construct a structure in the area outside
of/landward of the required buffer. As such, the County finds that the subject lot does not qualify as
nonconforming under the first section of the definition.
The second section of the definition applies to legal lots of record that do not "...otherwise meet the
minimum lot size requirements as set forth in this program. "
In spite of the above language, the Shoreline Master Program (JCC 18.25) does not actually set forth
minimum lot size requirements. As such, the applicant suggests that the lot size issue is appropriately
dealt with through the Zoning code, citing JCC 18.25.500(1)(d):
"New residential development should be limited to densities that are consistent with the Jefferson
County Comprehensive Plan goals and policies, zoning restrictions, and this program. The density per
acre of development should be appropriate to local natural and cultural features. "
The above policy addresses residential densities within the shoreline jurisdiction, which is not at issue —
the parcel is already established and it is assumed that one single-family residence will be constructed in
accordance with the rural zoning designation. At issue is the location of the proposed residence on the
parcel rather than the residential density.
As such, the County finds that the second section of the definition addressing minimum lot size
requirements also does not apply, and the Gleeson parcel therefore does not meet the definition of
"nonconforming lot" as defined at JCC 18.25.500(1)(d).
Alternatively, the applicant requests that Jefferson County determine that the common setback
provisions for a non -conforming lot at JCC 18.25.270(5)(b) apply, such to allow the proposed
Gleeson home to be constructed closer to the shoreline.
JCC Section 18.25.270(5)(b) is titled "Nonconforming lots — Common Line Buffer", and states that
"For the purpose ofaccommodating shoreline views to be adequate and comparable to adjacent
residences, but not necessarily equivalent, the administrator may reduce the standard buffer for new
single-family residences on nonconforming lots consistent with the following criteria..." (Note: the full
citation includes the standard for accommodating new structures within 300 feet of adjacent residences
as cited in the applicant's letter).
Based on the finding above that the Gleeson parcel does not meet the definition of a nonconforming lot,
the County finds that the common line setback provision at JCC 18.25.270(5)(b) is not applicable.
In summary, the applicant has not demonstrated that the existing plat of Tala Shores established a
shoreline buffer or setback, or that the Gleeson parcel is a nonconforming lot under JCC 18.25. As
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such, the Department finds that the currently required 150-foot marine buffer plus 10-foot
building setback applies in accordance with JCC 18.25.270(4).
Appeal rights:
The requester is hereby notified that this Code Interpretation may be APPEALED to the County's
HEARING EXAMINER by complying with the APPEAL PROCESS described in the County Code at
JCC § 18.40.390.
Please feel free to contact me at 360-379-4488 should you have any questions.
Sincerely, f�
David Greetham,
Planning Manager
Jefferson County Department of Community Development
Gleeson — Appeal
Exhibit C
oRDennis D. Reynolds Law Office
200 Winslow Way W.Suite 380 Bainbridge Island, WA 98110
Land Use • Fisheries Law • Environmental Law • Business Law - Indian Law • Real Estate
206.780.6777 206.780.6865 fax wwAcIrlaw.com
July 24, 2017
By email zreetham(&co.Lefferson. wa us) and United States Mail
David Greetham
Planning Manager
Jefferson County Department of Community Development
621 Sheridan St.
Port Townsend, WA 98368
Re: Gleeson — Official Code Interpretation Request
Dear Mr. Greetham:
Pursuant to the Unified Development Code, Jefferson County Code Section 18.40 please
treat this letter as a request for an Official Code interpretation. The request in made on behalf of
Michael and Victoria Gleeson. The property address is 234 Tala Shores Drive, Port Ludlow,
Washington 98365, Lot 33 of the Plat of Tala Shores, Jefferson County Parcel No. 998200130.
Proposed Interpretation.
(1) Interpret the Jefferson County shoreline use regulations as to buffers and setbacks,
including allowed deviations for the standard 150-feet buffer, as "trumping" other
provisions of the Uniform Development Code, e,g., the Critical Areas Ordinance. See
JCC § 18.25.270(4)(a)(b) provisions.
(2) Under the circumstances, recognize the setback established by a prior plat approval as
falling within shoreline policies, JCC§ 18.25.070(1)(c) ("The County should
recognize and honor buffers and setbacks established by existing plat...." and
requirements, JCC § 18.25.270(4)(f) (The County shall recognize and apply a buffer
established by an existing plat....). The requested interpretation would be such that
that the setback established by approval of a plat is controlling and considered vested
against the new shoreline regulations found in JCC Chapter 18.25.
(3) Alternatively, determine that the Gleeson parcel is a non- conforming lot as defined
by JCC§ 18.25.100 (14) (h).
(4) Alternatively, detenmine that the common setback provisions for a non -conforming
lot, JCC § 18.25.270(5)(b) apply, such to allow the proposed Gleeson home to be
constructed closer to the shoreline.
[90381-11
July 24, 2017
Page 2
Applicable Facts.
The Gleeson lot is approximately one-half acre. It is waterfront. The Gleeson's desire to
construct a modest single-family home on the lot approximately 50 feet from the top of the bank -
water line. Presumably, the ordinary highwater mark would be at the toe of the slope, if not
further down the beach. The parcel is zoned Rural Residential-5 — one (1) dwelling unit per five
acres ("RR-5"). The Shoreline environmental designation is Shoreline Residential ("SR"). The
lot is nonconforming as to its size under applicable zoning
The parcel is 75 feet wide and 242 feet long. The prior owners contemplated building a
residence with a 50-foot setback from the bluff, which was the appropriate setback at the time.
The proposed home would be about 50-feet wide. A four (4) foot deck would be on one side of
the home.
The prior owners applied for a three -bedroom septic permit in April 1990 signed off by
the Jefferson County Health Department in January 1993. From the enclosed drawing, Exhibit
1, it appears that the septic system is located approximately 132 feet from the bluff and
approximately 100 feet from an existing water well on the property. The prior residence was not
constructed.
The Gleeson property is part of the Plat of Tala Shores approved on September 7, 1962.
See Exhibit 2. The plat has been built out such that all the homes have the same approximate
setback from the bluff.
There are existing homes on each side of the Gleeson parcel. These homes sit
approximately 60 feet from their respective bluff tops, but that needs to be precisely confirmed
prior to building permit submittal. The home to the south is about six feet from the mutual
property line; the home to the north is about fifteen feet from the mutual property line. There is
thus no problem meeting the 300-foot requirement.
Specification of Code to be Interpreted.
Uniform Development Code, Chapter l 8.25, Shoreline Master Program, JCC
§ 18.25.270(4)(a)(b); JCC§ 18.25.070(1)(c); JCC § 18.25.270(4)(f); JCC§ 18.25.100 (14) (h) and
JCC § 18.25.270(5)(b).
Necessity of Interpretation.
The JCSMP affects a significant number of shoreline property owners, many who own
undeveloped lots. The current shoreline regulations are relatively new, and there is little current
experience applying the new regulations to guide applicants, staff or property owners.
The public would benefit from a Code interpretation as to how to apply the shoreline
buffers. Jefferson County plans under the Growth Management Act, RCW 36.70A. One GMA
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July 24, 2017
Page 3
policy is to ensure predictability and fairness in the permitting process. See RCW
36.70A.020(5). The requested interpretation would implement this policy.
Reasons and Justification for Requested Interpretation.
The proposed residence is within 300 feet of a residence constructed prior to adoption of
the JCSMP which is already encroaching on the standard buffer. Under JCC
§ 18.25.270(5)(b)(i), (ii) the Director "may reduce the standard buffer for a new single-
family...". Actually, the Director is required to do so. See JCC § 18.25.270(5)(b)(ii) (for
"existing homes on both sides" of non -conforming lots "...the buffer shall be determined as..."
(Emphasis supplied). Then see Figures 18.25.270(1); (2); and (3), attached (Exhibit 3).
How to deal with a non -conforming lot under the Zoning Code is controlled by the
JCSM. JCC Section 18.25.500(1)(d) provides that new residential development "...should be
limited to densities that are consistent with the Jefferson County Comprehensive Plan goals and
policies, zoning restriction, and this program." Thus, there is the tie-in between the Zoning Code
and the SMP.
The SMP states the word "should" means that "...the particular action is preferred..."
Property rights must be factored in. Single-family homes are a preferred use under the
Shoreline Management Act and JCSMP. Thus, interpretation of these laws must be sensitive to
the right to use and develop shoreline property for residential use, a "light hand" approach, since
interpretations must not offend constitutional protections.
On the last point, in Washington state, the right to use and develop land is fundamental
and protected under both the Washington State and Federal Constitutions. As the Washington,
Supreme Court has stated:
Property in a thing consists not merely in its ownership and
possession, but in the unrestricted right of use, enjoyment and
disposal. Anything which destroys any of these elements of
property, to that extent destroys property itself. The substantial
value of property lies in its use. If the right of use be denied the
value of the property is annihilated and ownership is rendered a
barren right.
Manufactured Housing Cmtys. v. State, 142 Wn.2d 347, 364, 13 P.3d 183 (2000) (quoting
Ackerman v. Port of Seattle. 55 Wn.2d 400, 409, 348 P.2d 664 (1960) (emphasis added).
Additionally, the Washington Supreme Court has long -recognized that "[a]lthough less
than a fee interest, development rights are beyond question a valuable right in property." West
Main Associates v. Bellevue, 106 Wn.2d 47, 50, 720 P.2d 782, (1986). "Despite the expanding
power over land use exerted by all levels of government, `[t]he basic rule in land use law is still
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July 24, 2017
Page 4
that, absent more, an individual should be able to utilize his own land as he sees fit."' Id. (citing
Norco Constr., Inc. v. King County, 97 Wn.2d 680, 684, 649 P.2d 103 (1982)).
Property rights are not "poor relations" of other Bill of Rights guarantees. See Dolan v
Tigard, 512 U.S. 374, 392 (1994).
The Shoreline Management Act (SMA) unequivocally states that coordinated planning is
necessary in order to protect the public interest associated with the shorelines of the state while,
at the same time, recognizing and protecting private property rights consistent with the
public interest. RCW 90.58.020 (emphasis supplied). The SMA also states that "the Legislature
further finds that much of the shorelines of the state and the uplands adjacent thereto are in
private ownership ...." RCW 90.58.020 (emphasis supplied).
The SMA declares that it "is the policy of the state to provide for the management of the
shorelines of the state by planning for and fostering all reasonable and appropriate uses." See
RCW 90.58.020. The policy of the SMA as set forth in RCW 90.58.020 strikes a balance
between protection of the shoreline environment and reasonable and appropriate use of the
waters of the state and their associated shoreline. See Nisqually Delta Assn v. City of DuPont,
103 Wn.2d 720, 727, 696 P.2d 1222 (1985).
The balance envisioned by the SMA anticipates that there will be some impact to
shoreline areas by development or continued use, repair and maintenance of existing structures
or developments. The SMA explicitly states "[allterations of the natural conditions of the
shorelines and shorelines shall be recognized by the department." RCW 90.58.020. (Emphasis
supplied.) Single-family homes are a priority use of the shorelines which falls within allowed
alterations of the shorelines.
Government cannot extinguish a right or liberty by merely enacting a law that purports to
subordinate that right or liberty. Chelan Basin Conservancy v. GBI Holding Co., No. 93381-2,
slip op. at 20 (July 6, 2017) (quoting Freedom Found. v. Gregoire, 178 Wn.2d 686, 706, 310
P.3d 252 (2013) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 L. Ed. 60 (1803)).
The $651.00 application fee is submitted with the hard copy of this letter. If you have
questions, or require clarification regarding the requested interpretation, please get back to me.
Thank you for your kind attention to these comments and enclosures
Very truly yours,
DENNIS D. REYNOLDS LAW OFFICE
Enclosures
Dennis D. Revnolds
"
cc:
DDR/jb
[90381-1 ]
Gleeson — Code Interpretation
Exhibit 1
I el -1
L-1 o;
Gleeson — Code Interpretation
Exhibit 2
59898A PGSt:2 rB,IJD
MRIMPr IISAhit1+a6�1mvi�a"MI�1� "1INI`tor
When recorded return to:
Michael F. Gleeson
Vietorta E. Gleeson
1229515th Ave SW
Burton, WA 98146
Filed for Record at Request of
All About Escrow, rat.
Escrow Number:16-0092
Statutory Warranty Deed O
THE GRANTORS Sarah F. Blossom and James X Hattrteir, wife and h wasideration of
TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDE ON conveys and
warrants to Michael F. Gleason and Victoria E. Gleeson, husband a d fe, ilowiri described real
estate, situated in the County of Jefferson, State of Washhtgton:
Abbreviated Leg l:
Lot 33 Tole Shores #1
Tax Parcel Number(s): 998200130
Lot 33, Tate Shores, as per plot recorded is Volume 4 of Plats, p 2ecords of Jefferson County,
Washington.
Situate in the County of Jefferson, State of Washin
SUBJECT TO: SEE EXMMff "A" ATTA nTO MADE A PART HEREOF.
Dated April 18, 2016 tJ
5ereh F. Blossom
CAI
SS:
drat Sarah F. Simsom and James IC Hattriex
me, and said persons acknowle4ed that they
$o it to be their See and voluntary act for the
Sr-0 o%�—
Notary public in and for the State of Washin on
Residing at AM r - nD `L
MYappointment OXA -of.- oG -2ot�t
749691 125286 44/29/2016 3,029.22*
6MM Page 2 of 2 041291201611:69 AM
EXHIBIT "A"
SUBJECT TO:
1 • Right of the public to makc neceawo slopeQfor arts or fills upon said premises' original
reasonable grading of sm em avenue%'aUgs a`nd made, as dedicated is
2. Right of the public to dram all streets and roads, over and across any ter
might [slot a natural course at%rthe street and roads are graded as d
3. Rights of the genmai public to the unresMded use of all the#,min;edtar
ble body of water
not only for thaprimmy pmpoae of mvigation, but also ,�mc uding (but not
ol,
limited to) fishing, boating, balft.swi nming, aster recreational
purposes, as those waters may affect the tidelands, ands and whether
the level ofthe wrier has bees raised naNraDy or mayd J Summdog Tavel,
all as itai5or defined by the decisiaasl law of the (Aff of the premises subjeotto sash
submergence)
4. Any claim to (a) ownership of or r
Flmited to ores;mamis, coal, lignItc,
or under the Land or produced from
grant, cxmpdm conveyance. rem
immunities, rights of way, andAMCM
not the interests orrighu at i
and similar subsiimces„ including but not
clay, rock, sand, and gravel located in, on,
err such ownership or rl;ow arise by lasso,
erwise; and (b) any rigb% privileges,
iaewilb or appurtenant thereto, whether or
a the Public Records.
179477
12
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LA SHORES NO. 2
PORTION OF GOVERNMENT
LOTS / AND 2, SECTION Z2,
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Gleeson — Code Interpretation
Exhibit 3
Jefferson County Code 1825.270 Critical areas, shoreline buffers, and ecological protection. Page 8 of 10
common line drawn between the nearest corners of each adjacent residence (see Figure
18.25.270(1)), or (B) a common line calculated by the average of both adjacent residences'
existing setbacks (i.e., (y+z)/2=x buffer; see Figure 18.25.270(2)).
(ill) Existing Home on One Side. Where there Is only one existing residence adjacent to the
proposed residence, the common line buffer shall be determined as the greater of either (A)
a common line drawn between nearest corner of the foundation for the adjacent residence
and the nearest point of the standard buffer on the adjacent vacant lot (see Figure
18.25.270(3)), or (B) a common line calculated by the average of the adjacent residence's
setback and the standard buffer for the adjacent vacant lot (i.e., (y+z)/2=x buffer; see
Figure 18.25.270(4)).
(iv) Figures 18.25.270(1) through (4) illustrate examples of the common line buffer
allowance. When discrepancy between the text and the graphic exists, the text shall govern.
Graphics are for illustration only, buffer shall be measured perpendicularly from the ordinary
high water mark as per this section.
Figures 182&270(1) — (4)
Figure 18.25.270(1)
I I twomq N*"Wftn.m ltaue
I i it ••
I Rcpouafiww I i
L......
...i
r... ...� I I iN�ll :C•.M
• I /n r.,.�luuwul
Figure 18.28.270(2)
The Jefferson County Code is current through Ordinance 6-16, passed November 3, 2016.
Jefferson County Code 1825270 Critical areas, shoreline buffers, and ecological protection. Page 9 of 10
I
I
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IF
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El
!
[.M.y Na.tor✓orr.m, No.nt
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Figure 18.25.270(3)
I 1
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f r.......... fI
i�.T-1AW
• i &^ ,4 t1411W.Ni
Figure 18.25.270(4)
I
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YN-ANIM
Sh tc,HWYI
(c) Nonconforming Lots — Development Requiring a Variance. Development on nonconforming
lots that do not meet the requirements of subsection (5)(a) or (b) of this section require a
shoreline variance.
(d) Water -Oriented Uses/Develcpment. When otherwise consistent with this program and
Chapter 18.22 JCC, the following water -oriented uses/developments may be permitted within a
shoreline buffer without a shoreline variance. The amount and extent of buffer modification shall
The Jefferson County Code is current through Ordinance 6-16, passed November 3, 201 &
Please publish onetime. PUBLISH DATE: October 11, 2017
BILL: Jefferson County Department of Community Development
621 Sheridan Street, Port Townsend, WA 98368
JEFFERSON COUNTY
NOTICE OF PUBLIC HEARING
APPEAL OF UNIFIED DEVELOPMENT CODE INTERPRETATION
MLA17-00057
NOTICE IS HEREBY GIVEN that a public hearing will be held by the Jefferson County Hearings Examiner to hear an appeal of a Unified Development Code Interpretation.
APPELLANT:
MICHAEL AND VICTORIA GLEEESON
12295 15T" AVENUE SW
BURIEN WA 98146
Appeal Received Date: August 31, 2017
SITE ADDRESS AND PROJECT LOCATION:
Site Address: 234 Tala Shores Drive, Port Ludlow, WA
Parcel Number: 998200130
DESCRIPTION OF APPEAL:
Pursuant to Jefferson County Code Section 18.40.390 the Dennis D. Reynold Law Office has submitted an appeal of a Unified Development Code Interpretation on behalf of
Michel and Victoria Gleeson. The Gleesons propose construction of a single-family home approximately 50 feet from the top of bank at 234 Tala Shores Drive, Port Ludlow,
Washington. A request for code interpretation of the applicable shoreline buffer and building setback under Jefferson County Code Title 22 (Shoreline Master Program) was
submitted on July 24, 2017. Jefferson County issued a code interpretation on August 23, 2017 indicating an applicable shoreline buffer of 150 feet for the subject parcel. The
appellant has appealed the County code interpretation, a Type II decision.
PUBLIC HEARING AND WHERE TO VIEW DOCUMENTS:
The public hearing will be conducted on October 24, 2017 in the First Floor Conference Room of the Jefferson County courthouse. The hearing will begin at or about 3:00 PM.
The file may be reviewed at the Jefferson County Department of Community Development. All interested persons are invited to receive notice of any hearings and receive a
copy of the decision by submitting such written comment(s)/request(s) to the Jefferson County Department of Community Development, Development Review Division, 621
Sheridan Street, Port Townsend, WA 98368, (360) 379-4450.
Project Planner: David Greetham, 360-379-4488
�gON
�Sk1 N� to
JEFFERSON COUNTY
Hearing Guest List
DATE I C j 12`J A i CASE#J 2: �Applicant:
Inter�"�'YOf Record. Please print clearly below to receive a copy of the decision and any subsequent
publictions.
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