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Home My WebLink AboutLog198 . <07:01~2004 15:53 FAX 208 828 7899 DAVIS WRIGHT TREMAINE 1lI001/008 ,...."--~_..', - : \ : \: =': :; \/1 r~ [r'7\ I ~ 41 ~ J t '-I . \ \ !. '. ~f -- ~.. .; i ; \ I Davis Wright Tremaine UP I! I I JUl 1 2004 ! I U i LAW 0 Hie E S Lei! . . :~ Century Square' 1501 FOurth Avenue' Seattle. Washjn~ton 98101-16U L_____~. --....----_J (206) 62:~~s6~v~a::J~oE6~:28-7699 ~~rj~.~~:'_'.;:~}lg}dr~r.:':!'~.\ENr LEASE DEUVER THE FOLLOWING MATERIAL AS SOON AS POSSIBLE, PLEASE NOTIFYVIKKI HERBKERSMAN IMMEDIATELY AT (206) 622-3150 IF NOT RECEIVED PROPERLY. THANK YOUr THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE MAY BE PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY NAME;O 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 YOUI Date: July 1, 2004 FROM: Marco de Sa e Silva SEND TO: NAME David Alvarez Greg McCarry Mark Dorsey AI Scalf, Director Michelle Farfan, Planner Josh Peters Jeffree Stewart Perry Lund Time In: 3:4-S ~ Total Pages To Be Sent 9. (Including COver page) TELEPHONE: (206) 628-7766 FAX: (206) 628-7699 FIRMlCOMPANY/CONFIRMA TION NO. Jefferson County Prosecuting Attorney's Office 360385-9219 Port Ludlow Associates 360 437-2101 Jefferson County Community Development 360 379-4450 FAX NUMBER 360385-9186 360 437-2522 360 379-4451 Department of Ecology Department of Ecology 360-407 -6305 360-407..6305 COMMENTS/SPECIAL INSTRUCTIONS; Floor Sent From: RETURN TO SENDER: SEA 14Q9424vl 65364-2 SeaLtl e Time Sent: AM PM Operator: VIA INTRAOFFICEMAIL 0 EXTENSION: ~'S13 WILL PICK UP It[ LOG IA~UNTING INFORMATION #--1 q~ Page -L-_of (-p-_ .07:01~2004 15:53 FAX 206 628 7699 DAVIS WRIGHT TREMAINE 141 002/008 . , LAWYERS Ii Davis Wright Tremaine LLP hNCHORhGI! BIlLLl!vUJ; LO~ AN(:1'T."~ NF,W vo.~RJI: J>ORTLAND SAN J'RANl;15CO SF-ATTT,<- SHANr:HA' WhSIlINGTON. O.C. MARCO OJ:; SA E SII.VA Direct (206) 628-7766 marcodeuesilva@dwt.com 2600 CENTURY SQUARf. 1501 fOURTH AvENUB SEATTLE, WA 98101-1688 TEL (206) 622-3150 J'I\X (206) 628-1699 www.dwt.o;:om July 1, 2004 Via Facsimile No. 360385-9186 and First Class Mail I. I ! I \ rJ."...-" ^r rr".I'."I',"). { L '" ". .'., . , r- I': -.- ...' ._.. _.. ,__,~____,__,_,~,,,,,,,,'r _._'_~ .-.-.-..., \ \ i I _~J David Alvarez Chief Civil Deputy Prosecuting Attorney Jefferson County Prosecutor's Office 621 Sheridan Street Port Townsend, W A 98368 Re: Port Ludlow Associates; Plat of Ludlow Bay Village; Artificial Pond and Over-Water Construction Dear Mr. Alvarez: I am writing on behalf of Port Ludlow Associates, the owner and developer of the Heron Beach Inn, Port Ludlow Marina, Harbonnaster Restaurant, and the vacant lots and parcels within the Plat of Ludlow Bay Village. I am writing in response to allegations made by some members of the Port Ludlow Conunwrity that the Jefferson County Shoreline Master Program prohibits the construction of homes over the artificial pond located between the Harbonnaster Restaurant and Port Ludlow Marina. Applicable Regulation Section 5.160 of the Jefferson County Shoreline Master Program prohibits residential structures "located on Or over marshes, bogs, swamps, lagoons, tidelands, ecologically sensitive areas or water areas subject to this Master Program." Background SEA IS17812v) 65364-2 Statile As you know, the artificial pond is not a natural body of water. Prior to the 1960's, it was a contaminated artificial mill pond. Perhaps in the late 1960's, an artificial salt water pond 1.4 LOG ITEM # l(r~ _. Page_~of-k_ . 07101/2004 15: 53 FAX 208 828 7899 . ;,.. '1' DAVIS WRIGHT TREMAINE ~ 003/008 David Alvarez July 1,2004 Page 2 JUL 1 2004 " (\f:-',",FU':' acres in area was created by the construction of the dike located between the current pond and the bay and by the installation and operation of an electric pump that drew marine water into the pond, which then was released by gravity back into the bay through an underground discharge vault located near the souiliwest comer of the pond. The pond was deepened and expanded from 1.4 acres to 22 acres (more than 50 percent in area) by Pope Resources in 1993 or 1994 following Jefferson County's approval of the Plat of Ludlow Bay Village. Pope Resources excavated upland areas east and north of the pond, installed a new pump system (comprising two new electric pumps located in an underground vault within the dike), and installed three concrete weirs (two on the east side of the pond, one on the west side) through which water enters the pond. According to the 1993 shoreline permit (SDP91-017), approximately 25,000 cubic yards were moved for pond expansion_ In that permit, the pond is described as an "existing man-made pond." The Department of Ecology issued a letter dated June 14, 1993, on the project application_ The Department wrote, "The Department of Ecology has reviewed the above referenced Conditional Use Permit to construct a 36 room hotel, 5 single family residences, 53 multi-family residences. . . . We concur that the proposal, as conditioned by the County, meets the intent of the master program. . . ." The pond currently is maintained by the electric pumps at an artificial elevation of 10.0 feet above mean lower low tide. The electric pumps bring marine water from the bay into the pond by forcing it up into the concrete weirs (which are located above the pond elevation), from which the water drains into the pond. From the pond, water drains into the bay through a discharge pipe, ilie inlet of which is 10.0 feet above mean lower low tide, and an emergency discharge pipe, the inlet of which is 10.5 feet above mean lower low tide. (The OHWM is 9.1 feet above the USC&GS datum or mean lower low tide.) The pumps serve four functions. They maintain the water level so that the pond will be a scenic amenity, they keep the water temperature low by constantly repleniShing the water with cold water from the bay, they maintain constant salinity, and they provide water circulation or flushing. It is these four functions that allow marine life to swvive in the pond. If the pumps were turned off, then there would be four consequences. First, the water level would drop by evaporation to an unknown elevation where it would be influenced by by stonn water runoff from local roads and buildings and when winter extreme high tid rises above the outfall invert. Second, the water temperature would increase significantly. Third, the water salinity would drop significantly. And fourth, the water would stagnate. The drop in water level, increase in temperature, drop in salinity, and stagnation would kill marine life within the pond. Without electricity and pumps, which are artificial instruments, there would be no marine life in this pond, which was artificially created.. SEA 1511812v3 65364-2 Seattle LOG ITEM # -l c(6 Page. 2? _.of (p 07/01/2004 15:54 FAX 208 828 7899 DAVIS WRIGHT TREMAINE It! 004/008 '. Ie', David Alvarez July 1, 2004 Page 3 Analysis The Shoreline Management Act was adopted to protect natural shoreline environments, not artificial environments within shorelands that cannot survive without electricity and machines. The artificial pond may be a body of water, as would be even a small private detention pond, but the question is whether the artificial pond is a marsh, bog, swamp, lagoon, tidelands, ecologically sensitive area, or water area subject to the Jefferson County Shoreline Master Program. J believe that it clearly is not The pond is within the shorelands. However, it is not a "shoreline" (because it is less than 20 acres in area) and nota "shoreline of statewide significance" (because it does not meet the statutory definition). See RCW 90.58.030. The pond therefore is not subject to the jwisdiction of the Shoreline Management Act as a body of water. The pond is located within 200 feet of the ordinary high water mark of Puget Sound, a shoreline of statewide significance, and therefore is located within the "shorelands:' But as you know, there is a difference between "shorelands," which are "lands extending landward for two hundred feet. . . from the ordinary high water mark," and "water area subject to this Master Program," which are shorelines and shorelines of statewide significance. The pond is not a marsh, bog, swamp. or lagoon because these areas comprise "wetlands" under the SMA, and the pond clearly is not "wetlands" under the SMA because it was artificially created (and possibly for other reasons). The pond is not tidelands because it is not subject to tidal ebbs and flows and discharges at an elevation above the ordinary high water mark. To my knowledge, the pond is not an "ecologically sensitive area." The pond is not a shoreline or shoreline of statewide significance (or even wetlands) for the reasons given above. and it therefore is not a water area subject to the Jefferson County Shoreline Master Program. The artificial pond therefore is not a marsh, bog, swamp, lagoon, tidelands, ecologically sensitive area, or water area subject to the master program. This conclusion not only is technically sound, it also makes common sense. The prohibition against over-water construction cannot reasonably be interpreted to apply to construction over a small private detention pond, for example, even if it is located within the shorelands, because not every water body is of sufficient ecological significance to be protected from overhead construction. There must be a logical standard for detennining when a body of water should be protected, and the only logical standard is whether the water body is regulated by the SMA as a shoreline, shoreline of statewide significance, or other body of water. An artificial pond of this size - a pond that was artificially created and that would not continue to exist without the continued operation of artificial pumps and electricity -- clearly is not a shoreline, shoreline of statewide significance, or wetland as defmed in the SMA. Jefferson County has the authority to make an SEA 1517812\1365364-2 ScalLlc LOG ITEM # l q~ _ Page.~of-k- 07/01/2004 15:54 FAX 208 828 7899 ... DAVIS WRIGHT TREMAINE [aJ 005/008 David Alvarez July 1, 2004 Page 4 . , administrative interpretation to this effect in its analysis of any application relating to residential construction over the artificial pond, and I ask that it do so. As you probably know, Jeffree Stewart of the Department of Ecology recently has taken the position that the artificial pond is part of the "shoreline." Mr. Stewart recently explained to me the basis for his decision, in an e-mail message dated June 30, 2004: Ecology's determination of shoreline jurisdiction was not based on the assertions of individuals, it was based on the statutes being applied to the landscape. Historical information is worthy of consideration, but in making contemporary land use decisions, RCW 90.58 directs us to "Recognize and protect the statewide interest over the local interest; Preserve the natural character of the shoreline; Result in long term over short term benefit; " and to "Protect the resources and ecology of the shoreline;" so these legislative policies are what guide our thinking as we evaluate past landscape conditions and previous land-use decisions." I have a few comments on that analysis. First, we acknowledge that the pond is located with 200 feet of the OHWM and therefore is part of the "shorelands" regulated under the SMA. The question is whether the artificial pond is a "water area subject to this Master Program" as intended by the County in its master program, and for the reasons given above I believe it clearly is not. Second, in this case not only is historical information worthy of consideration, it is critical to resolving the question whether any areas of the pond are natural or artificial. And third, the legislature did not intend that its policies should make irrelevant its adopted definitions of "shorelines," '\vetlands," and other relevant terms. Those tenns clearly exclude the artificial pond because of its size and its artificial creation and operation. Finally, I underst3l1d that one resident of Port Ludlow has asked the County to defend its past decisions relating to residential construction on the shorelands. I believe that the County should not exert its energies defending past land use decisions. Land use decisions must be justified before they are made and while they are subject to an appeal, until the appeals have been exhausted. Appeals may not be brought after an appeal period has ended and construction is complete. No one ~ not even the Department of Ecology - challenged the 1993 land use and subdivision decisions made by the C01lllty, and no one challenged the more recent construction ofresidential structures within the Resort. The time has passed to challenge these decisions and projects, and the time has passed for the County to defend them. I urge the County to make its records available for public inspection but not to expend its resoUTCes defending, explaining, and justifying past land use decisions. SEA 151781;hr3 65364-2 Seaule LOG ITEM #-1~g Page~ .~ __of ~G 07/01/2004 1554 FAX 208 828 7899 DAVIS WRIGHT TREMAINE ~ 008/008 .. .'..-- - . . , David Alvarez July 1,2004 Page 5 I hope that this resolves the over-water construction issue. If it does not, please let me know. Thank you very much for your consideration. Sincerely yours, 7Ifi^t1:\iL~ ~ Marco de Sa e Silva MD:vh cc: AI Scalf, Jefferson County Department of Community Development Michelle Farfan, Jefferson County Department of Community Development Josh Peters, Jefferson County Department of Community Development Greg McCarry, PLA (Via Fax) Mark Dorsey, PLA (Via Fax) Jeffree Stewart, Dep't of Ecology (Via Fax No. 360-407-6305) Perry Lund, Dep't of Ecology (Via Fax) SEA lS17!l12v3 65364-2 SeanIc LO~ ITEM #Jq~ Page.. Lp. of Cp