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HomeMy WebLinkAboutLog071 ~ 001/007 01/13/2004 17:06 FAX 206 628 7699 DWT SEATTLE ~~._-_.._- -.---. . ., I <'1- Davis Wright Tremaine up lm-l..,'..'" .vr ~Ol_ - LAW OFFICES i~. 2600 Ccntu ry Squate .. 1501 FO\lTth A vell\lC . Seattlc, Washin Clon 9& I ~~l 1 '8,...... ,...... ....- (206) 62:Z-~150 .. Fax: (206) 628-7699 ~' ,. 91 ,,; \ .C;; FAX COVER SHEET :a! Uu Ii ai ..----~..- -,. .~'-"" ..-.....,..... -, -, ,,- ,.--",",,'._"" PLEASE DELIVER THE FOLLOWING MATERIAL AS SOON AS POSSIBLE. PLEASE NOTIFYVIKKI HERBKERSMAN IMMEDIATELY AT (206) 622-3150 IF NOT RECEIVED PROPERLY. THANK YOU I -,:o.,....... .. luG \-rEM #J\ Page __, -,_.--...,-,-,,, -.-. r J ~Ji!~dO";3",3r .! 'lII'0V"!' i ',J' !"''' .. THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE MAY BE PRIVIL.EGED AND CONFIDENTIAL INFORMATION INTENDED FOR THE USE OF THE INDIVIOUAl OR ENTITY NAMEO BELOW. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE, (COLLECT IF NECESSARY) AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.s. MAIL. THANK YOU! Date: January 13. 2004 Time In: 5 :c1~-f'l" Total Pages To Be Sent: 7 [Click here to enter PAGESl (including cover page) FROM: Marco de Sa e Silva TELEPHONE: (206) 628-7766 FAX: (206) 628-7699 SEND TO: NAME David Alvarez Greg McCarry Mark Dorsey AI Scalf, Director Jeffrey B. Taraday FIRM/COMPANY/CONFIRMATION NO. FAX NUMBER Jefferson County Prosecuting Attorney's Office 360 385-9219 Port Ludlow Associates 360 437-2101 Jefferson County Community Development 360 379-4450 Foster Pepper & Shefelman 206447-2690 360385-9186 360437-2522 360 379-4451 206749-2193 COMMENTS/SPECIAL INSTRUCTIONS: Floor Sent From: RETURN TO SENDER: Time Sent: AM PM Operator: VIA INTRAOFFICEMAIL 0 WILL PICK UP ~ EXTENSION: 759B SEA 14S:l492vl 21773-26 Se:lttlc 01/13/2004 17:06 FAX 206 628 7699 ---. ~m'. SEATTLE 141 002/007 ---I l~' . --~ (e '1:: ~ .~~ \n\,'.,D ,\ LAW ,:-- ',I :\ \r~\ L l!. ,~ 2Ill4_ }J\ j,. t r ;:r i : . ~' t . f . "Pl OF'b!-.,i'.J'~' (uEVE:...OPN!tN!.J ~~,:.,.-:.....-..-- ----.- --'- ~~. ~ Davis Wright Tremaine LLP ANCHORAGE Il.!!LLllVUE LOS ANGELES NIlW YORK PORTLAND SAN PRANCISCO SEATTLE SHI\NC;HAI WASHINc:TON. D,C, \1,\ 1,(,0 !.~ I: 5.\ \. <; 1\ \' .0;' Di:l'CI, (206) 618..776t: rn::t.fC \.;0..:. ~iH"S ilv:.L(.({; ll"" T, .,; r, 1'1~ 2600 CENTURY SQUARE 1501 FOURTH ",VENUE SEA l'Tl.E, WA 981(H-1688 Tin. (206) 62:2.;'>150 FAX pOti) (.28-7699 www.d.Wt.com January 13, 2004 Via Facsimile No_ 360385-9186 and First Class Mail David Alvarez Prosecuting Atiomey's Office Jefferson County P.O. Box 1220 Port Townsend, W A 98268 Re: Ludlow Bay Village Plat Alteration Dear Mr. Alvarez: I represent Port Ludlow Associates LLc. T am writing in response to the letter dated January 6, 2004, from Jeffrey B. Taraday to Al Scalf and you regarding my client's proposed alteration of the plat of Ludlow Bay Village. Mr. Taraday claims that the proposed plat alteration violates RCW 58.17.215 because it allegedly would result in the violation of restrictive covenants filed at the time of the original approval of the plat Mr. Taraday claims, in particular, that the proposed plat alteration conflicts with an alleged resjdential density limit and with alleged single family and town home use restrictions in the original plat and master declaration. For the reasons set forth below, I believe that Mr. Taraday is mistaken. If you agree with my analysis of the issues, then I respectfully request that you direct Mr. Scalfto notify Mr. Taraday that Jefferson County has detennined that he has not shown that the proposed plat alteration would result in the violation of a restrictive covenant 1. Background. The original plat of Ludlow Bay Village was recorded on June 6, 1994, in Volume 6 of Plats, pages 228 to 233 (the "Plat"). The Plat has not yet been altered or amended. At the time the Plat was approved, restrictive covenants were filed in the form of a "Master Declaration of Covenants, Conditions, Restrictions, Assessments, Charges, Liens, Reservations and Easements for Ludlow Bay Village" dated May 25, 1994, and recorded under Jefferson SEA 1452431vl 27773.26 S~1l1l1e 01/1~/2004 17:06 FAX 206 628 7699 _.-.- DWT SEATTLE 1lI003/007 r~"".'--..re..~.-. "~" .l'l..........vg ~~~...D.~....... O 1f;.1,./', '.. ~.. \.. .0......--, . ;--' ... II 1""\ \ IlJl, \ 1\. ... 11 _~\ u ~. ~ ., L.... '>.:." .,,, ..J ',' DEPl of)t8~j~.~u;~\({ [)EVE~~~~!J :-""..--.,,-=- '.--'- .,"'",,,---- , . David Alvarez January 13,2004 Page 2 County Auditor's File Nos. 372516 and 372695, together with an Amendment dated Apri125, 1995, and recorded under Auditor's File No. 381139 (collectively, the "Master Declaration"). No other declaration of restrictive covenants affects Ludlow Bay Village. 2. Relevant Legal Authority. Mr. Taraday correctly notes the applicable legal authority, RCW 58.17.215, which provides in relevant part as follows: RCW 58.17.215. Alteration of subdivision~-Procedure When any person is interested in the a1terati011 of any subdivision or the altering of any portion thereof, except as provided in RCW 58.17.040(6), that person shall submit an application to request the alteration to the legislative authority ofthe city, town, or county where the subdivision is located. The application shall contain the signatures of the majority of those persons having an ownership interest of lots, tracts, parcels, sites, or divisions in the subject subdivision or portion to be altered. If the subdivision is subiect to restrictive covenants which were filed at the time of the approval of the subdivision. and the application for alteration would result in the violation of a covenant the application shall contain an agreement signed by all oarties subject to the covenants providing that the parties agree to terminate or alter the relevant covenants to accomplish the purpose of the alteration of the subdivision or portion thereof. (Emphasis supplied.) There are no reported decisions under this statute. 3. Identification of Covenants. The first step is to identify the "restrictive covenants which were filed at the time of the approval of the subdivision." See id. I acknowledge that the Master Declaration contains restrictive covenants filed at the time of approval of the Plat. However, I do not agree that the Plat contains any restrictive covenants. The statute does not define "covenants" or "restrictive covenants." See RCW 58.17.020 (definitions). However, thc Washington Court of Appeals has relied upon the following definition of "covenant" in another context: A covenant is defined as an agreement or promise of two or more par6es that something is done, will be done, or will not be done. In modem usage, the term covenant generally describes promises relating to real property that are created in conveyances OT other instruments. Shafer v. Board of Trustees, 76 Wn. App. 267, 883 P.2d 1387 (1994)- Under this definition, the Plat contains no restrictive covenants- It contains easements, a great deal of descriptive information about the Plat (including tot addresses and lot numbers), and SEA 1452431vl 27773-26 Scallle 01/13/2004 17:07 FAX 206 628 7699 DWT SE,'\TTLE ~.M4.i1l 0 7 ,..., --- ---r:e fl.. ;? \rut I, ,!,;' I,? \ ~.D.......,\E ~,..,.. ,..'ce.." ,,' ":'\,D..;.. " ..,,' ......... 1, ,I r 'lll , I , I. n \. ..... 2004 0:}) ; U ~", --II!" ,\ l ~....~ I" "-~;:;"---f~," - )1'1 rd'J'~ r \ DEPl QF)COMMUNiTV OEVEL9P~~.EN!.J ;a--....."..----.,',.~"'.....~ .- ----;--' .~ David Alvarez January 13, 2004 Page 3 required certificates and signatures~ but no restrictive covenants- The only mention of covenants within the Plat is on Sheet 1 of 6, under the headings ,''Declarations, Covenants, and Restrictions" and "Declaration of Covenants," where a one-sentence reference is made to the Master Declaration. The Master Declaration contains covenantS. But there are DO restrictive covenants contained within the Plat. Mr. Taraday contends that the lot addresses and lot numbers contained within the Plat are restrictive covenants. This contention ignores the distinction between a covenant - a contract, a pro:mise, a commitment -- and mere descriptive information. By Mr. Taraday's standard, anything appearing within the Plat is a restrictive covenant, including the surveyor's office phone number. This certainly is not what the legislature had in mind in adopting RCW 58.17.215. The list of addresses and the "SF" and "TH" descriptive terms do not constitute covenants. A covenant is a promise to do or not do something. There is no promise expressed or i:mplied on the face of the Plat that the addresses will not be changed or increased in number or that the use of the tenns "SF" and "TH" means that those lots will be used in perpetuity for single family and town ho:me uses. 4. Interpretation of Master Declaration. Mr. Taraday and his clients do not have the authority to interpret the Master Declaration because, when Mr. Taraday's clients purchased their lots in Ludlow Bay Village and agreed to be bound by the Master Declaration, they agreed that the Ludlow Bay Village Association Board of Directors would have the "exclusive right" to interpret the Master Declaration and to determine "[a]l1 disputes, complaints or other matters relating to the Master Declaration or other Governing Documents." Master Declaration ~4.25 at 14-15 and ~19.1 at 42. The Master Declaration also requires that an such disputes, complaints, and other :matters "shall be submitted to the Master Association Board for determination, unless otherwise provided herein to be within the authority of the Architectural Review Co:mmittee." Master Declaration ~4.25 at 15. "In the absence of any adjudication to the contrary, the Master Association's construction or interpretation of the provisions herein shall be [mal, conclusive and binding as to all persons and property benefited or bound by this Master Dec1aration-" Master Declaration g19.1 at 42. Tn other words, unless and until a court rules on the question whether the proposed plat alteration would violate a restrictive covenant within the Master Declaration, only the Board of Directors of Ludlow Bay Village Association has legal authority 10 determine whether or not there is a violation. Because the question whether the proposed plat alteration conflicts with any restrictive covenant found within the Master Declaration requires the interpretation of the Master Declaration, and because the question is a "matter relating to the Master Declaration," Mr. Taraday and his clients are obliged to submit the matter to the Board of Directors of Ludlow Bay Village Association, which then can make a detemlination whether or not there is a violation. The mere fact that Port Ludlow Associates controls all five votes on the Board of Directors does Dot exCuse compliance with this requirement. Until Mr. Taraday and his clients have submitted this :matter to the Board SEA 1452431 v 1 27773-26 Seam;; 01/13/2004 17:07 FAX 206 628 7699 DWT SE;\TTLE 141 005/007 David Alvarez January 13, 2004 Page 4 r~~_~~t: :~~ i ; I l ..J ! I OEPT. OF CQMMU,\i:rl OEVELQ~~ENU "-~~._..._._" .....,...----'" ... of Directors, they themselves have acted in violatiol1 of the Master Declaration by failing to follow the adnrinistrative remedies and processes available to them. 5. Master Declaration Contains No Residential Density or Use Restrictions. Even if Mr_ Taraday and bis clients had the authority to interpret the Master Dcclaration, the Master Declaration simply contains no covenants regarding the density of residential development within the Plat. It also does not contain covenants that forbid stacked residential units or that would prevent anything but a single family residential use on "SF" lots or a town home residential use on .'TH" lots_ The reason that Mr. Taraday did not identify a single section or page within the Master Declaration in which such covenants may be found is because none exist. While the Plat does contain lot addresses and lot numbers, neither the Plat nor the Master Declaration contains any covenants that the addresses will not be changed or increased in number, and neither contains any covenants that lot numbers beginning with the letters "SF" are restricted to single family residential uses or that lot numbers beginning with the letters "TH" are restricted to town home uses. The Master Declaration does indeed contain a recital that the Declarant intends to '"incorporate a mix of uses within Ludlow Bay Village" including "53 residential town homes and 5 single family residences." Master Declaration at 1. That is not a restrictive covenant, for three reasons: first, it is contained within a mere recital; second, it is a mere statement ofthe Declarant's intent in 1994, not a promise to perform any act in the future; and third, it contains no promissory language like "shall" or "agrees to" or "covenants to." See King County v. Rasmussen, 143 F. Supp.2d 1225, 1229 (W.D. Wash. 2001) ("an acknowledgement of the probable use cannot limit the conveyance unless accompanied by a specific restriction on use"). If I tell you that I intend to become a millionaire someday, I have not promised you or covenanted to you that I wilt become a millionaire, and I am not liable to you in do not become a millionaire. Definitions typically do not contain covenants. But even if the proposed improvements and the new owners are not "dwelling units," .'lots," and "residents" as these words are described in the Master Declaration in its current form, the idea that a definition can be violated makes no sense - the sole consequence of a mismatch is that the proposed improvements and new owners simply would not be "dwelling units," "lots," or "residents." Just because a definition does not apply does not mean that the definition is a restrictive covenant or that the definition is "violated." Mr. Taraday cannot find an express residential density or use covenant with which the proposed plat alteration would conflict, because no there are no express covenants with which the alteration would conflict. Mr. Taraday instead finds implied. covenants (e.g., that a list of 58 street addresses implies a covenant that there will be only 58 residential units, that "SF" implies a single family use covenant, that "TH" implies a town home use covenant). But Washington courts are Dot fond of implied restrictive covenants. "Restrictive covenants upon the use of real property will not be extended beyond the clear meaning ofthe language used." Weld v. Bjork, 75 Wn.2d 410,411, 451 P.2d 675 (1969), citing Jones v. Williams, 56 Wash. 588, 106 p, 166 SEA 1452431v1 27773-26 ScattJ~ 01/13}2004 17:08 FAX 206 628 7699 DWT ~:MIT-~ ","' .._ ____ _ 14I.00.6./Jl.O.7, I~J_ ~ ij;; LE ~\ Irl I 14 2004 c:v i L ... J I " I, DEPl OF COMMUNi!" OEVE~9P~~EN!J --^......,.._....~....".._~ - --- --:--- . . .....- David Alvarez January 13,2004 Page 5 (1910); Hunter Tract Improvement Co. v. Corporation of Catholic Bishop ofNisqually, 98 Wash. 112, 167P.100,L.R.A.1918A,297(1917); Millerv.American Unitarian Ass'n, 100 Wash. 555, 171 P. 520 (1918). "Restrictions, being in derogation ofthe common-law right to use land for all lawful purposes, will not be extended by implication to jnclude any use not clearly expressed. Doubts must be resolved in favor of the free use ofland." Burton v. Douglas COUl1.ty, 65 Wn.2d619, 622, 399 P.2d 68 (1965), citing Grangerv. Boulls, 21 Wash.2d 597,152 P.2d 325, 155 AL.R. 523 (1944); 14 AmJur- g211 at 620. Based on these authorities, I am confident that nO Washington appellate court would conclude as a matter oflaw either that the listing oflot addresses creates a restrictive covenant that the density ofthe lots will not change in petpetuity, nor that the use of "SF" or "'TH" as a prefix jn a subdivision lot number creates a restrictive covenant that the lot wHl be used in perpetuity only for single family or town home residential uses, nor that any other residential density or use covenants can be implied from the Master Declaration. 6. Declarant's Exemption. Even ifthe Master Declaration did contain residential density or use restrictions with which the proposed plat alteration would conflict, Port Ludlow Associates (as successor Declarant to Pope Resources) is exempt from any such restrictions: Section 4.24. Declarant's Exemption. Nothing contaUled in this Master Declaration shall be construed to prevent the erection or maintenance by Declarant, or its duly authorized agents, of any buildings, utilities, structures, improvements or signs necessary or convenient to the development [ or] sale of property within Ludlow Bay Village. Under this exemption, Port Ludlow Associates has complete authority to construct improvements (including stacked residential flats) within any lot in Ludlow Bay Village. Therefore, increases in density and changes in uses - when undertaken by Port Ludlow Associates ~ cannot possibly conflict with any residential density and use restrictions in the Master Declaration. 7. Lack of Specificity and Completeness. Mr. Taraday's claims lack both specificity and comp1eteness- They lack specificity becallSe Mr. Taraday's letter fails to identify by reference to any specific section or page numbers any restrictive covenant within the Master Declaration with which the proposed plat alteration would conflict. The claims lack completeness because Mr. Taraday closes with the contention, "There are numerouS other examples to which one could point to illustrate the manner in which the site plan violates the restrictive covenants imposed by the plat and the CCRs." Both the County and Port Ludlow Associates are entitled to know what those other examples might be. ML Taraday's January 6 letter would have been the proper time to identify them short of submitting the matter to the Board of DirectoTs of Ludlow Bay Village Association, as required by the Master Declaration and as discussed above. 8. Amendment of Master Declaration. [fPort Ludlow Associates were aware ofa specific restrictive covenant that would be violated by the proposed plat alteration, then it either SEA 1452431vj ').7773-26 Sealtle David Alvarez January 13, 2004 Page 6 I4J 007/007 _"c___'_, '~~ ~ ~ ~ ~lrl ,I U 11!, 1M 14 2004 ,.0 I IIf L 011.13.12004 17: 08 .FAX 206 62~ 769~.~ DWT , c~EA'ITLE ~_...,.. ~,,-,,-,.,-,"""'-"-""""""""'-' ,........ i DEPT. OF COMMUNI 'i OEVELOPMPH .-'-'"..,.....,.,_....~_."..,.---..--,-:._..,--~-,... would amend the proposed plat alteration or the Master Declaration. Port Ludlow Associates has the power to do either or both. (In fact, Port Ludlow Associates does intend to amend the Master Declaration this year with respect to other matters.) Notwithstanding Mr. Taraday's letter, Port Ludlow Associates sees no violation of any residential density or use covenants. It therefore has not amended the Master Declaration regarding those matters. 9. Conclusion. As noted above. if you agree with my analysis of the issues, then I respectfully request that you direct Mr. Scalf to notify Mr. Taraday that Jefferson County has detennined that he has not shown that the proposed plat alteration would result in the violation of a restrictive covenant. Thanks very much for your consideration. Sincerely yours, 1iW~~:~ Marco de Sa e Silva MD:vh cc: Greg McCarry, Port Ludlow Associates LLC (Via Facsimile) Mark Dorsey, Port Ludlow Associates LLC (Via Facsimile) Al Scalf, Director of Community Development, Jefferson County (Via Facsimile) Jeffrey B. Taraday, Foster Pepper & Shefehnan PLLC (Via Facsimile) SEA 145243lvl 27773.26 Seattle