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HomeMy WebLinkAboutLomita Trust, Decision on appeal of code interpretation DECISION – DENYING APPEAL OF CODE INTERPRETATION – LOMITA TRUST MATTER Page 1 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY Before Hearing Examiner Gary N. McLean BEFORE THE HEARING EXAMINER FOR JEFFERSON COUNTY In the Matter of the Appeal of LOMITA TRUST, PETER VANAGS, AND PAT KELLER, of a Code Interpretation issued by the Jefferson County Department of Community Development __________________________________ ) ) ) ) ) ) ) DECISION DENYING APPEAL of CODE INTERPRETATION I. SUMMARY OF DECISION. The appeal is denied. The challenged Code Interpretation is affirmed. II. RECORD. Materials included as part of the Record are numbered and identified as follows: A. Code Interpretation challenged in this appeal, issued January 7, 2022; B. Notice of Appeal, dated January 20, 2022, with Amended Notice of Appeal, dated January 24, 2022 (*there was no objection to consideration of the Amended Notice); C. Appellant’s Motion for Summary Judgment, dated March 8, 2022, with attached supporting Declaration from Ms. Vanags; D. County’s Cross Motion for Summary Judgment and Response to Lomita Trust Motion for Summary Judgment, dated March 21, 2022, with attached copy of challenged Code Interpretation and supporting Declaration from the County’s attorney; E. Appellant’s Response Brief in Opposition to County’s Motion (captioned as a ‘Reply’), dated April 5, 2022; F. County’s Reply Brief, dated April 25, 2022; G. Appellant’s Motion to Strike the County’s Reply Brief, dated April 27, 2022; and H. Pre-Decision Order, issued on May 6, 2022. The Examiner has had a full and fair opportunity to consider all evidence submitted as part of the record; has visited the area where the appellant’s property is located; has DECISION – DENYING APPEAL OF CODE INTERPRETATION – LOMITA TRUST MATTER Page 2 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY reviewed and researched relevant codes, caselaw, and ordinances; has considered all arguments offered by counsel for each party; and is fully advised. Accordingly, this Decision is now in order. III. FINDINGS OF FACT. 1. Any statements of fact or findings set forth in previous or subsequent portions of this Decision that are deemed to be findings of fact are hereby adopted and incorporated herein as such. Captions are used for some groups of findings but should not be construed to modify the language of any finding, as they are only provided to make it easier for readers to identify some of the key topics addressed in this Decision. Procedural Background. 2. This matter comes before the Hearing Examiner as an appeal of a formal Code Interpretation issued by the County’s Community Development Director/Unified Development Code (UDC) Administrator on or about January 7, 2022, following a written request for an interpretation explained in a letter submitted on behalf of the appellant, dated November 2, 2021. (Ex. A, Code Interpretation; Ex. B, Notice of Appeal). 3. The appellant, Lomita Trust, submitted a written Notice of Appeal challenging the Director’s Code Interpretation, dated January 20, 2022, and an Amended Notice of Appeal, dated January 24, 2022. (Ex. B). The County did not dispute timeliness or other procedural obstacles that may have prevented this appeal from moving forward. There is no dispute that the Hearing Examiner has jurisdiction to decide appeals of Code Interpretations issued by the Director. 4. Upon assignment to the undersigned Hearing Examiner, counsel for the appellant and the County participated in a Pre-Hearing Conference, on March 22, 2022, where they agreed that this matter could be decided without need for a hearing, based on motions and briefing offered by each side. Prior to the Pre-Hearing Conference, the appellant submitted a Motion for Summary Judgment dated March 8, 2022, and the County filed a Cross Motion for Summary Judgment and Response to the appellant’s Motion, dated March 21, 2022. 5. Consistent with timelines established in the Pre-Hearing Conference, the appellant submitted their response brief addressing the County’s motion, captioned as a “Reply” to the County’s motion, dated April 5, 2022. The County’s Reply was to be filed within two weeks, by April 19th. On Monday, April 18th, the Examiner’s clerk transmitted a written request to the Examiner, asking that the April 19th deadline should be extended by one week, to April 26th, because she did not forward the appellant’s April 5th response brief to the County’s attorney until the prior Friday (April 15th). The Examiner responded the same day, issuing a short order to the Examiner’s Clerk, which read as follows: “Extension granted based on good cause, through no fault of respondent’s counsel.” Unfortunately, it appears that the order DECISION – DENYING APPEAL OF CODE INTERPRETATION – LOMITA TRUST MATTER Page 3 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY granting the extension was not then transmitted onto counsel for the appellant. The County’s attorney submitted their 4 ½ page Reply brief on April 25th. 6. On April 27th, the appellant’s counsel submitted a motion to strike the County’s brief, because she understood that it was untimely, and was not aware of the extension granted due to a clerical error. The appellant’s motion to strike also questioned the reason given for an extension, because she transmitted a copy of her response brief by email on April 5th, directly to the County’s attorney in this matter. The appellant’s motion also reiterated arguments supporting their appeal, giving them the last word on the subject. 7. On May 6th, the Examiner issued a Pre-Decision Order, explaining the following: “Through no fault of either counsel, it appears that both parties were not fully informed on a clerical mistake, where appellant’s counsel was not included on a distribution email transmitting a short order issued by the Examiner to grant an extension for the filing of a reply brief, which order was based on a clerical mistake for which counsel for neither party was responsible. In any event, the Examiner finds that good cause existed to issue the order, and the Hearing Examiner Rules of Procedure expressly allow the Examiner to consider “late filings” based on good cause. (See H.Ex. Rule 3.3(a)).” The order noted that no further pleadings would be needed, and that there was no need for another pre-hearing conference or oral arguments, citing H.Ex. Rules 3.2(a) and (b), and Rule 3.3(d)). 8. While the County’s Reply brief and the appellant’s Motion to Strike are part of this record, the Examiner finds and concludes that neither pleading provided a stand-alone set of facts or law to grant or deny this appeal. Instead, each pleading included remarks and assertions seemingly meant to cast the opposition in a bad light, while reiterating points already made in previous briefing. Arguments, facts, and legal authority addressed in the pending Motions for Summary Judgment and Response briefs, and the challenged Code Interpretation itself – all of which are properly included as part of this record without objection from either party – provide an adequate record upon which to consider the limited questions raised in this appeal and issue this Decision. Material Facts. 9. In July of 2021, an entity known as Lomita Trust purchased a waterfront property located on the eastern shore of Marrowstone Island in unincorporated Jefferson County. The property address is 2324 Marrowstone Road, in the Nordland community, on parcel no. 976200704. Patricia Keller Vanags serves as Trustee for Lomita Trust. (Declaration of Ms. Vanags, attached to Ex. C, Appellant’s Motion for Summary Judgment; Ex. A, Code Interpretation challenged in this appeal, background on page 1). 10. The property is zoned “Rural Residential (RR) 1:5”. (Ex. C, Dec. of Ms. Vanags; Ex. A, Code Interp., background on page 1). DECISION – DENYING APPEAL OF CODE INTERPRETATION – LOMITA TRUST MATTER Page 4 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY 11. There is no dispute that the Lomita property includes a single RV pad, which Lomita refers to as an “RV site” and the County’s briefing calls a “camping site.” 12. At some point after purchasing the property, the Lomita Trust offered the single RV pad site for use by a single RV, and Ms. Vanags’ husband created a website offering the single RV site. (Dec. of Ms. Vanags). The website advertising the Vanags’ RV pad features “Guest Rules” that include the following question and answer: What kind of camping is allowed (emphasis added by the Examiner)? We allow one self-contained camping vehicle on the site. This includes all classes of vans and RV’s, truck campers, travel trailers, pop-up campers, and fifth wheels. Your vehicle must have its own restroom facilities. Out of respect for our neighbors, no tent camping is allowed on the property.” (Dec. of Ms. Vanags, copy of Guest Rules attached). 13. There is no dispute that the Vanags advertised their single RV site and occasionally rented the RV pad to tourists, and that neighbors complained. (Ex. B, Notice of Appeal, on page 2). As noted above, the appellant’s public advertisement refers to use of their single RV pad on their property as a “kind of camping” that is allowed – including all classes of RV’s and the like. On this basis alone, the appellant’s appeal must fail. Arguments and personal points of view from the appellants about how County codes should be interpreted cannot erase the fact that the appellants advertise their single RV site for camping purposes. Period. 14. Shortly thereafter, a County official informed the Vanags (as the property owners) that County regulations of campgrounds and camping facilities prohibit the use of RR 1.5- zoned parcels for camping facilities without a conditional use permit. (Ex. A, Code Interpretation, background on page 1; See Ex. B, Notice of Appeal, with no assignment of error to background section, and unchallenged statements of fact are verities on appeal1). 15. While it uses irrelevant, somewhat disapproving language to describe several undisputed events and facts, Ms. Vanags’ declaration is consistent with the Code Interpretation background statement where she claims that, in August of 2021, Jefferson County Department of Community Development (“DCD”) “accused” her and her husband, Peter Vanags, of operating a “commercial campground”, that DCD “insists” the single RV site for offer at their property on Marrowstone Road is a “Campground or Camping 1 There is no dispute that neither the appellants’ original or amended Notice of Appeal (Ex. B) challenged any statements of fact provided in the background section of the Code Interpretation (Ex. A) on appeal in this matter. Thus, the Hearing Examiner is legally bound to accept all unchallenged findings contained in the Code Interpretation as verities in this appeal. (“It is well-established law that an unchallenged finding of fact will be accepted as a verity upon appeal.” Pierce v. Bill and Melinda Gates Foundation, 15 Wn. App. 2d 419, 475 P.3d 1011 (Div. 1, 2020), citing State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994)). DECISION – DENYING APPEAL OF CODE INTERPRETATION – LOMITA TRUST MATTER Page 5 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY Facilities”, and that a code enforcement official “insisted” that Ms. Vanags obtain a conditional use permit. (Dec. of Ms. Vanags, par. 4, 5, and 6). 16. In any event, there is no dispute that the department received a letter at some point in November of 2021, submitted on behalf of the property owner, Lomita Trust, requesting a formal code interpretation of County code language addressing “campground and camping facilities,” asserting several arguments disputing the code compliance officer’s determination that the use of the property as a “campground” violates the code. (Ex. A, Code Interpretation, summary of Code Interpretation Request on pages 1 and 2). Code Interpretation that is the subject of this appeal. 17. On or about January 7, 2022, the County’s Community Development Director / Unified Development Code (UDC) Administrator issued the formal code interpretation that is the subject of this appeal. (Ex. A). The Code Interpretation includes the following Summary: The Administrator finds that the definition of “campground and camping facilities” at JCC 18.10.030 includes those facilities with a single campsite that is “offered for persons using tents or other personal, portable overnight shelters.” This finding is supported by the following: 1. The meaning of JCC 18.10.030, read with JCC 18.10.005, is unambiguous: the definition of “campground and camping facilities” means either a site or sites offered for persons using a tent or other personal, portable, overnight shelter. 2. The definition of “camping resort” contained in RCW 19.105.300(1) does not preempt the definition of “campground and camping facilities” in JCC 18.10.030 and does not preclude the JCC definition from including a single site, for the reasons interpreted in Section II, C.1. 3. The Appeal Decision of COM2018-00156 supports the Administrator’s interpretation in Section II, C.1; the Appeal Decision did not interpret the definition of “RV park” or “Campground and camping facilities” in a manner inconsistent with the Administrator’s interpretation. Moreover, JCC 18.20.350, which groups a number of uses under the heading of “small-scale recreation and tourist uses,” must be read as a whole. “Campground and camping facilities” and “Recreational vehicle parks” are separate land uses and both uses must meet the standards of JCC 18.20.350. (Ex. A, Code Interpretation, on page 2). 18. In short, the challenged Code Interpretation rejected Lomita’s arguments detailed in their written request for a code interpretation. DECISION – DENYING APPEAL OF CODE INTERPRETATION – LOMITA TRUST MATTER Page 6 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY Lomita’s Notice of Appeal. 19. The appellant’s attorney filed a detailed written appeal that initiated this matter before the County’s Hearing Examiner. (Ex. B, Notice of Appeal, dated Jan. 20, 2022, Amended Notice of Appeal dated Jan. 24, 2022). Jurisdiction. 20. The Hearing Examiner is granted express authority to address appeals of code interpretations, including preparation of findings of fact and conclusions of law, and issuing final decisions. See JCC 2.30.080; JCC 18.25.610(2); JCC 18.40.330; and JCC 18.40.390. 21. Despite arguments raised in the appellant’s Notice of Appeal and pleadings, Washington case law is very clear that a hearing examiner only holds specific authority and jurisdiction over matters as specified in ordinances and resolutions adopted by the local government. In this instance, the Jefferson County Code does not grant explicit or implied powers for any hearing examiner to consider equitable or constitutional claims and requests for relief. All arguments based on constitutional or equitable arguments are outside the Examiner’s jurisdiction. Such arguments appear unlikely to prevail in any subsequent forum, because this appeal is easily resolved based on undisputed facts and admissions by the appellants’ themselves – establishing that they consider the single concrete pad on their property to be an RV parking site, used for RV camping purposes, squarely within existing county code provisions referenced in the challenged code interpretation that regulate campgrounds and camping facilities, in the singular or plural as such terms are used. Parties of Record, Counsel. 22. The parties to this appeal and their counsel of record are: Lomita Trust, Peter Vanags, and Pat Keller (collectively “Lomita”), the appellant in this matter, represented by counsel, Julian E. St. Marie; and the respondent, Jefferson County Department of Community Development, represented by Barbara Dykes Ehrlichman, the County’s Civil Deputy Prosecuting Attorney. Burden of Proof and Standard of Review. 23. In an Appeal of a Unified Development Code Interpretation, the appellant (as the moving party) has the burden of proof, with issues of law subject to a de novo standard of review, and all issues of fact subject to a substantial evidence standard of review. HEx Rule 5.14(j). The "substantial evidence standard of review" that applies to issues of fact raised in an appeal means that the Examiner's review is deferential and requires the Examiner to view the evidence and reasonable inferences therefrom in the light most favorable to the party who exercised the fact-finding. HEx Rule 1.1(q). Even without such deference, based on this DECISION – DENYING APPEAL OF CODE INTERPRETATION – LOMITA TRUST MATTER Page 7 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY record, there are no material facts or controlling legal authority that would serve as a basis to grant the pending appeal. 24. Because the parties generally agreed to have this appeal decided based on briefs instead of a hearing full of witness testimony, bringing this matter forward to a final Decision based on the Cross Motions for Summary Judgment, each parties’ motion must stand on its own merits. The Examiner finds and concludes that there are no material facts or controlling legal authority that would serve as a basis to grant the pending appeal. 25. The Hearing Examiner visited the appellant’s property, viewing in from the public right of way, to focus on features and surrounding conditions discussed in the challenged Code Interpretation, the Notice of Appeal, and briefing materials submitted by the parties. 26. A party is entitled to summary judgment if the pleadings and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. A material fact is one upon which the outcome of the litigation depends, in whole or in part. A quasi-judicial decision maker like the Hearing Examiner may dispose of issues via summary judgment. (See caselaw cited in each party’s moving papers, ASARCO Inc. v. Air Quality Coal., 92 Wn.2d 685, 695-98, 601 P.2d 501 (1979). 27. In considering a summary judgment motion, the trier of fact must construe the evidence and consider the material facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. If the moving party is a respondent and meets this initial showing, then the inquiry shifts to the party with the burden of proof in the underlying proceeding. If, at this point, the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof, then the decision maker should grant the motion. Discussion and Analysis. 28. Based on undisputed material facts and evidence in the record, the Examiner finds and concludes that the plain text of relevant Jefferson County Code provisions – and the appellant’s own public advertisements – firmly establishes that the appellants’ single RV pad site offered for use by a single RV is being used for “camping” purposes, and that it is a Campground or Camping Facility(ies) as such term might be used in applicable County codes. Appellant’s arguments that overlook how they advertise their RV pad are simply not credible. 29. The proper action on a land use decision cannot be foreclosed because of a possible past error or failure to apply or enforce a provision of applicable codes. The County’s current development codes as interpreted and applied in the challenged Code Interpretation should not be forfeited by any statement, impression, action, or inaction of a staff member that may DECISION – DENYING APPEAL OF CODE INTERPRETATION – LOMITA TRUST MATTER Page 8 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY have been perceived by the appellant as supporting their appeal, or in disregard or oversight of an ordinance or code provision. The public has an interest in zoning that cannot thus be set at naught. (See analysis provided in Dykstra v. Skagit County, 97 Wn. App. 670, 985 P.2d 424 (Div. 1, 1999), petition for rvw. denied, 140 Wn.2d 1016, 5 P.3d 8 (2000); citing City of Mercer Island v. Steinmann, 9 Wn. App. 479, 483, 513 P.2d 80 (1973), and Buechel v. Department of Ecology, 125 Wn.2d 196, 211, 884 P.2d 910 (1994). The Washington Supreme Court even applied this rationale in the context of water rights, where the Department of Ecology originally acted ultra vires in measuring a water right, it did not act arbitrarily and capriciously in abandoning an unlawful practice and switching to a new practice. See Department of Ecology v. Theodoratus, 135 Wn.2d 582, 957 P.2d 1241 (1998). 30. It is well settled that “speculation, argumentative assertions, opinions and conclusory statements will not defeat [a summary judgment] motion.” Suarez v. Newquist, 70 Wn. App. 827, 832, 855 P.2d 1200 (1993), as cited in Simmons v. City of Othello, 199 Wn. App. 384, 399 P.3d 546 (2017). Mere allegations, argumentative assertions, conclusory statements, and speculation do not raise issues of material fact that preclude a grant of summary judgment. See Grimwood v. Univ. of Puget Sound, 110 Wn.2d 355, 360, 753 P.2d 517 (1988); Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). Once the moving party meets its burden to show that there is no genuine issue as to any material fact, the nonmoving party must set forth specific facts rebutting the moving party's contentions and disclosing that a genuine issue as to a material fact exists. Strong v. Terrell, 147 Wn. App. 376, 384, 195 P.3d 977 (2008). 31. Here, the Examiner struggled to put himself in the appellants’ shoes to consider accepting the arguments and conclusory statements in their pleadings and supporting declarations that reject the obvious facts presenting themselves in this appeal and could come up with no valid reasons based on facts or law to do so. The key facts in this matter cannot be disputed – the appellants advertise, operate, and use their single RV pad as a camping site. Their appeal is entirely without merit and must be rejected. 32. The Examiner conducted independent legal research into issues raised in the challenged Code Interpretation and the Cross Motions for Summary Judgment. In the end, the County’s Motion is supported by undisputed facts and legal authority that controls the outcome of this appeal. Except to the extent modified in this Decision, all findings, statements of fact, and legal conclusions included in the County’s pleadings are adopted as findings and conclusions of the undersigned hearing examiner in support of this Decision. 33. The appellants failed to satisfy their burden of proof needed to show that the challenged Code Interpretation was in error as a matter of law. Accordingly, the appellant’s Motion for Summary Judgment must be denied. The County’s Cross Motion for Summary Judgment is supported by undisputed facts and controlling legal authority. Accordingly, the County’s motion is granted, and this appeal must be dismissed. DECISION – DENYING APPEAL OF CODE INTERPRETATION – LOMITA TRUST MATTER Page 9 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY V. CONCLUSIONS OF LAW. 1. Based on evidence in the Record, including without limitation all findings set forth above, the Examiner concludes that the Director’s challenged Unified Development Code Interpretation is fully supported by substantial evidence and controlling legal authority. The challenged interpretation was not a mistake. 2. The appellants failed to satisfy their burden of proof to prevail in this appeal and failed to show that there are any genuine issues of material fact or controlling legal authority that would serve as a basis to deny the County’s Motion for Summary Judgment. Accordingly, this appeal should be dismissed. 3. For the specific reasons and facts articulated in the Director’s challenged Code Interpretation and the County’s briefing materials, and for the additional facts and reasons set forth herein, all as thoroughly supported by the record established in this appeal, the challenged Code Interpretation should be and is hereby affirmed in its entirety. 4. Any legal conclusions or other statements made in previous or following sections of this document that are deemed conclusions of law are hereby adopted as such and are incorporated herein by this reference. VI. DECISION. Based on evidence included in the record for this appeal, the appellants failed to meet their burden of proof. Accordingly, the County’s Motion for Summary Judgment is granted, and the Director’s challenged Unified Development Code Interpretation is affirmed. The appellants’ motion for summary judgment is denied. ISSUED this 17th Day of October, 2022 _____________________________ Gary N. McLean Hearing Examiner DECISION – DENYING APPEAL OF CODE INTERPRETATION – LOMITA TRUST MATTER Page 10 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GARY N. MCLEAN HEARING EXAMINER FOR JEFFERSON COUNTY Final Decision, Appeal Rights The Hearing Examiner is authorized to issue Final Decisions for matters listed in JCC 2.30.080(2). Final Decisions of the Hearing Examiner are subject to appeal as explained in JCC 18.40.340, which reads as follows: (1) Time to File Judicial Appeal. The applicant or any aggrieved party may appeal from the final decision of the administrator or hearing examiner to a court of competent jurisdiction in a manner consistent with state law. All appellants must timely exhaust all administrative remedies prior to filing a judicial appeal. (2) Service of Appeal. Notice of appeal and any other pleadings required to be filed with the court shall be served by delivery to the county auditor (see RCW 4.28.080), and all persons identified in RCW 36.70C.040, within the applicable time period. (3) Cost of Appeal. The appellant shall be responsible for the cost of transcribing and preparing all records ordered certified by the court or desired by the appellant for the appeal. Prior to the preparation of any records, the appellant shall post an advance fee deposit in an amount specified by the county auditor with the county auditor. Any overage will be promptly returned to the appellant. State law provides short deadlines and strict procedures for appeals and failure to timely comply with filing and service requirements may result in dismissal of any appeal. Persons seeking to file an appeal are encouraged to promptly review appeal deadlines and procedural requirements and confer with advisors of their choosing, possibly including a private attorney.