HomeMy WebLinkAbout025Morris Law P.c.
January 16,2018
Mr. Phillip Hunsucker
Chief Civil Deputy Prosecuting Attorney
Jefferson County
P.O. Box 1220
Port Townsend, WA 98368
Draft Development Agreement between Jefferson County
and Pleasant Harbor Marina and Golf Resort, LLP
Dear Mr. Hunsucker:
Thank you for making the draft Development Agreement available to the public for
review. Here are our cofilments on this document:
Fourth "Whereasl: Here, it is stated that the Legislature adopted the development
agreement process in RCW 36.708.170-.210'1to skengthen the land use planning process
and reduce the costs of development . . ."
This development agreement appears to have been drafted for the purpose of providing a
substantial benefit to the developer in the form of vested rights to any number of
development regulations, comprehensive plan policies, and codes relating to management
and operation of various facilities. There is nothing in the agreement which describes the
consideration provided to the public in exchange.
The authorizing statute (RCW 36.708.170(1)) provides that: 'oA development agreement
shall be consistent with applicable development regulations adopted by a local
govemment planning under chapter 36.70A RCW." The administative regulations
adopted in order to implement the development agreement process (WAC 365-196-
8a5(lTXaXii)) provides that: "Development agreements do not provide a means of
waiving or amending development regulations that would otherwise apply to the
property." We can't determine whether this agreement is a proper exercise of police
power, given that the development regulations that will govern this development haven?t
even been adopted.
I
Seventh "Whereas": Here, it is stated that: "This Agreement constitutes a final land use
action pursuant to RCW 36.70C.020." If this is meant to indicate that an appeal of this
Agreement could only be filed under chapter 36.70C RCW, this is false.
Under RCW 36.708.200, "if the development agreement relates to a project permit
application, the provisions of chapter 36.70C RCW shall apply to the appeal of the
3304 Rosedale Street NW Suite 2oo, Gig Harbor, wA 98335-1805
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Re
t.
Mr. Phillip Hunsucker
January 16,2018
Page2
decision on the development agreement." There is no project permit application at this
point in time, so it can't be appealed under chapter 36.70C RCW.
It is our understanding that the County is attempting to establish the development
regulations that will apply to the developer's submission of project permit applications in
this agteement. Therefore, this agreement is an exercise of legislative authority - and the
County should be asserting that this is true, because the County is immune from liability
for its legislative actions. RCW 4.24.470; Bogan v. Scott Haruis, 523 U.S. 44, 54, ll8
S.Ct. 966, 149 L.Ed.2d 79 (1998). Therefore, the County doesn't need to bend over
backwards in an attempt to provide the developer any concession desired by the
developer for this project.
An appeal of this development agreement could be filed with the Growth Management
Hearings Board (if it were alleged that the agrcement was inconsistent with GMA) or
with the court under a constitutional writ of certiorari. See, Leavitt v. Jefferson County,
74 Wash. App.668,686,875 P.2d 681 (199$; RCW 7.16.360; RCW 36.70C.020(2).
Chapter 36.70C RCW is o'the exclusive means of judicial review of land use decisions
..." The definition of "land use decision" in RCW 36.70C.020(2) is: "a final
determination by a local jurisdiction's body or officer with the highest level of authority
to make the determination, including those with authority to hear appeals on: (a) an
application for a project permit or other governmental approval required by law before
real property may be improved, modified, ..."
This particular development agreement is not a "project permit or other governmental
approval required by law before real property may be modified. The County plans to
adopt it in conjunction with the new development regulations for the Pleasant Harbor
Master Planned Resort in the same manner as the adoption or an amendment to the
comprehensive plan/deveiopment regulations (see, Section 17.60.040).1 Therefore, it will
be adopted under the County Commissioners' legislative authority, which means it is not
appealable under chapter 36.70C RCW. See, Coffey v. City of Walla Walla, 145 Wash.
App. 435, 440-441, 1 87 P.3d 272 (2008).
Section 2.2. Term: Section 2.3. Build-Out Period. The Agreement will end 5 years after
the build-out period. The build-out period is 25 years or 5 years after the completion of
1 This draft Development Agreement refers to an Appendix that should have included the new Zontng
Code title 17 on Master Planned Resorts. Instead, the referenced Appendix is blank. You have provided
me with a link to the drafts of this new Title 17 on Master Planned Resorts, but it is extremeiy confusing
because there is the version recommended by the Planning Commission and the version recommended by
the County staff.
Mr. Phillip Hunsucker
January 16,2018
Page 3
all phases described in
the completion of any
agreement.
pection 10, whichever is later. Because there is no deadline for
/phase, the County would effectively be approving a perpetual
The County has no authority to enter into contracts with developers for the purpose of
indefinitely freezing development regulations. "The established rule is that municipal
corporations have no power to rnake contracts which will conhol them in the
performance of their legislative powers and duties." 10 McQuillin, Mun. Corp. Sec.
29.07 (3'd ed). One legislative power that cannot be contracted away is the exercise of
zoning powers. 1d.,2 Anderson, American Law of Zoning, (3d ed), Sec. 9.21 (1986),4
Yokley, Zoning Law and Practice, Sec. 24-31 (4fr ed 1979). Agteements to protect land
from all future rezoning are void as "illegal contract zoning" because such agteements
bargain away the local govemment's police powers. Rathkopf, 2, The Low of Zoning and
P lanning, Sec. 294.03 at 29 A-33, 3 4.
Although there are no cases in Washington in which a court has addressed the validity of
a development agreement of indefinite duration, the Washington courts have held that an
interpretation of the vested rights doctrine that would o'freeze land use regulations
forover" would be an "absurd result." Alliance Inv. Group of Ellensburg, LLC v. City of
Ellensburg, 189 Wash. App. 763, 771, 358 P.3d 1227 (2015). Courts in other
jurisdictions have also found such agreements invalid:
Land use regulations, including the power to zone, involve the exercise of
the sovereign's police power. A govemment 'rnay not contract away its
right to exercise the police power in the future.' Moreover, contracts
purporting to do so are invalid and unenforceable as contrary to public
policy.
Delucchi v. County of Santa Cruz, 179 Cal.App.3d 814,823-4, 225 Cal.Rptr 43 (1986).
See also, Mayor and Council of Roclcville v Rlyns Enterprises, [nc.,372 Md.514,814
A.2d 469 (2002) (municipalrty could not bargain away its zoning powers by signing a
contract indefinitely binding the municipulity); Bollech v. Charles County Maryland, 166
F.Supp.2d 443, 453 (Md. App. 2001); City of Farmers Branch v. Hawnco, Inc., 435
S.W.2d 288 (Tex. App. 1968); Geralnes B.V. v. City of Greenwood, Colorado, 583
F.Supp. 830, 841 (Colo. App. 1984).
We understand that Section 7.2 provides that "this Agreement reserves the County's
authority to impose new or different regulations to the extent required by a serious threat
to public health and safety." However, this is not the equivalent to an actual expiration
date in a development agreement. In order for the County to trigger this Section 7.2, it
would have to make a finding that there was a serious threat to public health and safety.
Mr. Phillip Hunsucker
January 16,2017
Page 4
Also, we would assume that the developer would appeal the County's attempt to impose
any new development regulations on its proposed development that were not strictly
adopted for the purpose of addressing this health and safety problem.
The developer obtains a substantial benefit from a development agreement which vests
the development regulations for Pleasant Harbor for an unlimited period of years. The
consideration received by the County for this agreement is not apparent from the
language of the agreement (if it exists at all). However, it is clear that this agreement,
which vests the developer to the development regulations in place today (whatever they
may be, we still don't know) will certainly not benefit the public. As stated by the
Washington courts:
Development interests and due process rights protected by the vested
rights doctrine come at a cost to the public interest. The practical effect of
recognizing a vested right is to sanction the creation of a new
nonconforming use. A proposed development which does not conform to
newly adopted laws is, by definition, inimical to the public interest
embodied in those laws. If a vested right is too easily granted, the public
interest is subverted.
Ericlrson & Associates, Inc. v, Mcletan, 123 Wash.2d864,874,872 P.2d 1090 (1994).
Section 2.5. Exhibits aLd Appendices: Section 3.2. Master Plan Components. The
development regulations that are supposed to govern the development of the property,
and which vest when this development agreement is approved, are referenced as an
Appendix. This Appendix is blank. My request for a copy of these development
regulations was met by a link which provides two versions of a draft of the development
regulations (the Planning Commission's recommendation and the Staff recommendation).
It is diffrcult to provide any informed comments on these documents. Apparently, the
Cor,rnty has chosen to adopt procedures that will keep the public in the dark about what
development regulations will govern the development of Pleasant Harbor until the day of
adoption/approval.
Section 4.1.1. Protection of Fishine Rights: Section 6.2. Impacts of Pleasant Harbor on
Nearby Natural Resources: Section 8.3. Stormwater Standards. Here, it appears that the
parties will agree that the developer will develop the property during the indefinite term
according to the County's Stormwater Management requirements as they currently exist
(because they apparently will be attached as Appendix B). This means that the County
will allow the developer to vest to the existing stormwater development regulations.
Mr. Phillip Hunsucker
January 16,2018
Page 5
The Washington Supreme Court has held that the "Legislature did not intend vesting to
preclude enforcement of federal and state environmental laws," and that "state actions
pertaining to stormwater. were intended to be exempt from the vesting statutes."
Snohomish County v. Pollution Control Hearings Board, 187 Wash.2d346,365-66,386
P.3d 1064 (2016),
Given that the Washinglon Supreme Court has held that the vested rights doctrine does
not apply to stormwater regulations, the question is why the County would allow the
developer to vest to stormwater regulations through a development agreement. It is
important that the Department of Ecology be contacted for its position on the language of
this Agreement.
In Sections 4.l.l. and 6.2, the developer agrees to "operate" the Pieasant Harbor MPR in
accord with a Water Quality Monitoring Plan which we assume has been drafted to be
consistent with the existing development regulations. Apparently, the developer plans to
claim not only that its development is vested to certain regulations, but also its
"operations" are vested. The authority for this position is unknown, and again, the
Department of Ecology needs to be contacted for its opinion on this issue.
Section 8.1" Permitte.d Uses. Again, there is a reference to Appendix A, which is
supposed to include development regulations that haven't been adopted. There isn't even
a single version of a draft of these development regulations for the public to provide
comment.
Section 8.2. Planning Goals_and Objectives. Here, the developer claims that this
agreement vests the development to "the planning goals adopted by the County in the
Comprehensive Plan as of the date of recording this Agreement." This is inconsistent
with law:
Unless amended or terminated, a development agreement is enforceable
during its term by a party to the agreement. A development agreement
and the development standards in the agreement govern during the term of
the agreement or for all or that part of the build-out specified in the
agreement, and many not be subject to an amendment to a zoning
ordinance or development standard or regulation or a new zoning
ordinance or development standard or regulation adopted after the
effective date of the agreement.
Mr. Phillip Hunsucker
January 16,2018
Page 6
RCW 36.708.180.2 The comprehensive plan is not a zoning ordinance, nor is it a
development standard/regulation gr an amendment to either. Review the definition of
'odevelopment regulation" in RCW 36.70A.030(7). Also, look at RCW 36.708.170(3) for
a list of the types of things that may be included in a development agreement. Nothing
allows the inclusion of planning goals and policy guidance to be vest through a
development agreement because they are legislative activities. The County is precluded
by the Washington Constitution from delegating its legislative authority to freeze
policies and goals in its Comprehensive Plan on specific properties through a contract
(especially one with indefinite duration).
Section 8.3.2. Stormwater Management in Public Roads. Here, the County is required to
manage stormwater runoff on all public roads, rights-of-way and easements within the
Pleasant Harbor MPR, apparently under all applicable regulations. However, the
developer's responsibility for the management of stormwater within the Pleasant Harbor
MPR during the next 100 years (or the duration of this Agreement) is vested to some
ordinance that was adopted prior to 2018.
First, it is highly unusual that the County would sign a contract agreeing to manage
stormwater to a particular standard on private property in a contract.3 Second, this
language includes the County's express agreement to allow the developer to manage
stormwater within the MPR, to the regulations in place at the time this Agreement was
approved. So, if there is a flooding event within the MPR, and the County and developer
are sued for damages to private property, the developer will simply claim that it has no
liability, given that it isn't required to manage the stormwater to applicable standards --
this is the responsibility of the County. Again, this issue needs to be brought to the
attention of the DeparEnent.of Ecology. It also looks like an equal protection issue, as it
is unlikely that the County allows other property owners the same advantage.
Next, Iet's imagine that the developer constructs a phase of the MPR twenty years from
now, but constructs the roads under the stormwater regulations in place at the time this
Agreement is approved. Would the County accept a road that doesn't comply with the
applicable development regulations? I don't know any municipality that would take this
step. If the road didn't comply with the applicable development regulations, wouldn't the
County have to use public firnds to improve the road to the existing development
regulations? This is an unconstitutional gift of public funds.
2 Also note that nothing in any of the development agr€ement statutes allow a developer to vest to any
"operations."3 These are not included in the "indemnified claims" in section I l.l, and section 11.4.1 specifically limits
the indemnification to only those claims in 11.1.
Mr. Phillip Hunsucker
January 16,2018
Page 7
Nothing in the development agreement statutes allows the County to enter into a
development agreement for the purpose of granting a developer an exemption from the
development regulations relating to "management" of stormwater in a development.
Segti_on 8.4" Critical Area Standards. Here, the County has agreed to allow the developer
to vest to some version of the County's critical areas ordinance. See my comments
above.
Section 8.5. Land Division Standards. Here, the County has agreed to allow the
developer to vest to its permit procedures as they exist in some ordinance. The
Washington courts have determined that procedures are not subject to the vested rights
doctrine, and there is no need to include procedwes here. Graham Neighborhood v. F.G.
Associates, 162 Wash. App. 98, 116,252 P.3d 898 (2011). However, as the years pass,
the fact that the procedures adopted in this Agreement are outdated will certainly be a
benefit to the developer. The athachments are not recorded against the property, so the
public will have no idea what procedures govern the processing of the permits and
approvals. This will make it especially hard for the public to find the appropriate version
of the old code in order to file any appeals.
Section 8.9. Water Service. Here, the developer has agreed to comply with "the most
current approved specifications and requirements as determined by the Washington State
Department of Health" for the water main extensions and potable water system
improvements. Doesn't the County have any public works standards for such facilities?
Why is the developer allowed to follow the CWSP as it exists, if this Agreement is of
indefinite duration? Is there no possibility that the CWSP will change in years to come?
Has this been reviewed by the Department of Health to determine whether it is subject to
vesting in an agreement?
Section 9.1. Qounty Processing and Review. See comments on Section 8.5 above.
Procedures are not subject to the vested rights doctrine, so there is no reason to include
them here, other than to intentionally disadvantage the public. Has the County also
agreed to give the developer the benefit of the permit application fees in effect at the time
this Agreement is executed for the next 100 years?
S_ection 9.3" Yestiqg. Here, the County and developer attempt to create the fiction that
developer is only vested in this Agreement to development regulations -- which isn't true.
The developer confirms that the County can't adopt any new or different development
regulations dwing the indefinite and unlimited build-out period.
Mr. Phillip Hunsucker
January 16,2018
Page 8
Just to be sure that the developer gets the full benefit and supreme advantages not
afforded to anyone in the County (or anywhere else), the developer has added Section
9.3.3, which provides that if the developer forgot to add some facet of the development
that isn't vested to any subject, element or condition in this Agreement, then it is vested
*yily-'So, no one actuaiy knows what the development is -vested to -- given that the
developer and the County have interpreted RCW 36.708.170 through .210 to include not
only development standards, but also the operation and management of every bit of this
MPR. This is an illusory condition and is unenforceable.
Note that the developer has included the prohibition on the County's adoption of any new
development regulations except to address a serious tlueat to the public health and safety
at least four times. It is clear that the developer intends to enforce it if the County
attempts to do so.
In Section 9.3.4, the language is contrary to other parts of the Agreement. Here, the
developer is required to comply with state or federal laws or regulations of any kind,
including stormwater. The other contrary portions of the Agreement which allow the
developer to vest to stormwater and other police power regulations needs to be
eliminated.
Thank you for the opportunity to comment on the draft Development Agreement. Once I
am able to review the various versions of the draft MPR development regulations, I may
have additional comments.
Very.yours,
Carol A. Monis
cc: Client
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