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HomeMy WebLinkAboutLog203 _", ",0~/04/2004 16:03 FAX 3604372522 .'''.. '.'" PORT LUDLOW ASSOCIATES 141 0011005 LAWYERS II Davis Wright Tremaine LLP ANCHOaACl! Bl!LLEVUE LOS ANGELES NEW YORK PORTLAND SAN PIlANCISCO SiATTLE 5HhNCHAJ wASHINCTON. D.C. MARCO DE SA E SILVA DTRJ;CT (206) 628-7766 ma rc 0 d c sa C 5 j 1 va@ rJ:wt. ~ 0 In 2600 CENTURY SQUARE 150 l:rOT,JRTH AVENUE SEATTLe. wA 98101-1688 TEL (206) 622.HSO FAX (206) 628-7699 ",,,,,,.dwl.com August 4, 2004 Glen Huntingford, Commissioner Pat Rodgers, Commissioner Dan'Tittemess, Commissioner Board of County Commissioners Jefferson County Courthouse Port Townsend, Washington 15), IE <<:, IE n W IE ~ llll 1tl1G.. 4 - \W VIA HAND DELIVERY JEFFERSON COUNTY OEPT. OF COMMUNITY DEVELOPMENT Re: Port Ludlow Associates LLC: Port Ludlow Resort Project at Ludlow Bay Village Honorable Conunissioners: Introduction I represent Port Ludlow Associates LLC. I am writing in response to your resolution yesterday to conunence a declaratory judgment action to resolve the over-water construction issue involved in PLA's proposed resort development project at Ludlow Bay Village. I respectfully request, for the reasons set forth below, that you reconsider your resolution and that Jefferson County not commence litigation at the present time. Project and Applications PLA proposes to construct 101 attached or detached residential dwelling writs, 100 marina moorage slips, a new restaurant, a marina office and retail store building, a private recreational facilityt a maintenance building, a central receiving dock, an emergency helipad, and surface parking areas. PLA has submitted the following applications relating to tlUs project (collectively, the "Applications") : 1. Major Resort Plan Revision dated June 25, 2003, revised April 29, 2004; LOG ITEM # ~Q3 Page__L_of ~ SI3A 1533762vl 27773-26 ", ~, ....,}j.,-io . ..~.;...;.~.~~"..."1,.. .. ~ <, t 1 .1:.;: _ _ ~.( tr~;*"'~' ~ .~ . ~~ ,. ~'<<;' attA l~, t.'.. I~" to;..,...__..,..,.,.... v{ .. ,08/04/2004 16: 03 FAX 3604372522 ~ PORT LlmLOW ASSOCIATES I4l 0021005 .......- -- ., . Board of County Commissioners August 4, 2004 Page 2 2. Plat Alteration Application dated April 30, 2004 (DCD File No. ); 3. Shoreline Substantial Development Permit Application dated 2004 (DeD File No. SDP04-00028) (covers all proposed upland improvements); and 4. Shoreline Substantial Development Permit Application dated 2004 (OeD File No. SDP04-00238/MLA04-00191) (covers Building 600 only). The foregoing list of Applications is intended to comprise all land use and subdivision applications by PLA now pending within the Plat of Ludlow Bay Village. Over-Water Construction Issue Four of the proposed residential buildings are to be located over portions of the existing artificial pond now located within the property. We note that 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." Shoreline Master Program Section 5.160. However, PLA contends that this development standard applies to wetlands, shorelines, and shorelines of statewide significance - the types of bodies of water that the Shoreline Management Act was intended to protect - and not bodies of water exempted from shoreline regulation because of their size or artificial natute, such as stonn water detention pondsJ swimming pools) and this artificial pond. (By definition under both the Shoreline Management Act and Jefferson County Shoreline Master Program, the artificial pond is Dot wetlands, shorelines, or shorelines of statewide significance.) A field biologist for the Washington State Department of Ecology has taken the position that the artificial pond should be protected from over-water construction under the Shoreline Management Act because it is a body of water located within 200 feet of the shoreline. At least three opponents of the project share that view. Concerns About Declaratory Judgment Action I understand the potential benefits of a declaratory judgment action. The action will resolve an important issue. However, I have the following concerns about the proposed action: 1. Judgment May Not Be Binding Against All Affected Persons. I believe the judgment will be binding only against parties to the litigation. Jefferson County therefore vvill have to name individual citizens and citizen organizations as defendants or they will not be bOWld by the court's decision. Howevert after the litigation is concluded, new residents will move to Port Ludlow, and new citizen groups may be formed, and the judgment probably will not be binding against them. SEA. 1532947vl 65364.2 LOG ITEM # 6(D~ Page ~ of 5 . -I · ,~~/04/2004 16:04 FAX 3604372522 PORT LUDLOW ASSOCIATES I4l 003/005 Board of COWlty Commissioners August 4, 2004 Page 3 2. Naming Individual Citizens and Citizen Groups as Parties May Upset Them. It probably will upset many individuals to be named as defendants in the litigation. Many of them will have done nothing more than submit comments on the Applications, and to be named as defendants in litigation means they may have to incur attorney fees, disclose the litigation in credit applications, and incur other difficulties. 3. Judgment May Not Be Binding in Later Appeals of Shoreline Permit Decisions. Even if a superior court judge agrees that the over-water construction rule does not apply to bodies of water that are not subject to the Shoreline Management Act, a different judge hearing an appeal of the shoreline permit subsequently issued for the proj ect will not be bound by the first judge's decision and lawfully can reach the opposite result. 4. Declaratory Judgment Action Will Delay the Project. Litigation will delay the project. Although we accept the possibility that the project may be delayed for years by appeals, it would be unfair to put PLA through that process twice: once for the declaratory judgment) the second time for appeals of the pennits themselves. s. Declaratory Judgment Action Might Be Expanded to Include Claims Against the County and PLA. The proposed litigation could begin as a declaratory judgment action, but it might be expanded by the defendants and intervenors to include new claims, even over the objections of Jefferson County and PLA. The litigation could delay the resolution of the substantive issue and increase the conflict relating to the project. SEA 1532947vl 65364-2 6. PLA Needs Additional Time to Discuss the Over-Water Construction Issue with the Department of Ecology. PLA has asked a biologist to prepare a report on the artificial pond, to detennme the environmental protection purposes of the over-water construction rule and to analyze whether those purposes are served by prohibiting construction over the pond. When that report is completed, and if it supports PLA's position, PLA intends to meet with the Department of Ecology and to ask it to reconsider its decision. If the Department of Ecology reconsiders its decision, then a declaratory judgment will be unnecessary. But if the action already has been commenced and citizens have been named as defendants or have intervened, then even a reversal by the Department of Ecology will not bind the citizens, and a settlement with the Department of Ecology will be impossible. 7. PLA May Make Design Changes that Moot the Over-Water Constrnction Issue. There may be design alternatives available to PLA for the four buildings affected by the over-water constru.ction controversy. For example, PLA may propose to reduce the size of the artificial pond, an idea that has been both proposed and recommended in the past. Reducing the size of the pond will reduce the temperature and improve LOG ITEM # ~03 Page 3> of 5 ~~ ',08/04/2004 16:04 FAX 3604372522 .-. PORT LUDLOW ASSOCIATES I4l 004/005 v.. .-_ Board of County Commissioners August 4, 2004 Page 4 the water quality of the pond. PLA needs time to explore those alternatives. Design revisions that eliminate the over-water construction issue would make the litigation unnecessary. 8. Declaratory Judgment Action Disregards Established Land Use Process. PLA has the right to a prompt hearing on its Applications before an impartial County hearing examiner. A declaratory judgment action undennines that right. Based on these concerns, I believe that a declaratory judgment action will not accomplish its intended purpose and may cause wrintended damage to Jefferson County and to PLA. It also may upset those citizen defendants and community organizations named as co-defendants. Deferral of Applications If Jefferson County will consider rescinding its resolution to commence a declaratory judgment action, then PLA will agree that the County may defer until further notice from me the processing of the Applications described above, including without limitation the publication of a final Supplemental Environmental Impact Statement under the State Environmental Policy Act and the commencement of the agency and public comment periods relating to the applications if such comment periods have not already commenced: This deferral will extend (or ''toll'') the applicable time periods for Jefferson County action on the applications, including time periods arising under RCW 36.70B.070 (County determination of completeness within 28 days of application) and RCW 36.70B.080 (eounty decision within 120 days of complete application) by the number of days after the date of this letter until the date on which I give notice to Jefferson County requesting that it recommence the processing of the applications. This deferral will allow PLA sufficient time to resolve the over.water construction and other design issues raised during the SEP A environmental review process. It will save Jefferson Connty and PLA the significant administrative resources that will be dedicated toward processing and reviewing the Applications until the over-water construction and other design issues are more clearly resolved. In the meantime, PLA would continue discussing design and enviromnental review issues with Jefferson County personnel as it moves toward recommencing the processing of the Applications sometime within the next few months. Withdrawal of Shoreline Permit Application (Building 600 Only) Without regard to whether you rescind your resolution to commence a declaratory judgment action, PLA agrees to withdraw its Shoreline Substantial Development Permit Application dated .2004 (DCD File No. SDP04-00238/MLA04-00191) (covers Building 600 only). This application will be resubmitted at a later date with a moditied design, LOG ITEM # ~O~ Page \.( ~of 5 SEA 1532947v) 65364-2 i 08/04/2004 16:04 FAX 3604372522 $ ~ . 4.,- ... : ~,"'- . . PORT LUDLOW ASSOCIATES I4l 005/005 Board of County Commissioners August 4, 2004 Page 5 Conclusion. As you know, there is a small but very vocal group of opponents to this project. Within the past few months, this small group has made many arguments in opposition to the project. They have criticized past actions of Jefferson County. They have attempted to make the project a political issue, when by law it is a quasi-judicial proceeding tried by the eounty hearing examiner, in which neither the Board of County Conunissioners nor the County Administrator is involved. They have attempted to subvert the process and to hurt the project by hurting Jefferson County itself. All that I can offer you in this letter is the assurances that we understand the arguments that have been made, that most of the argwnents lack merit, that most of the argwnents that do not lack merit are not relevant to the project, and ofthose arguments remaining PLA will find a way to design the project to resolve the issues. The project will be good for the community and it will comply with your ordjnances. I think we can trust the examiner to make certain of that. For the foregoing reasons, and based on PLA's agreement to allow Jefferson eounty to defer the processing of the Applications until further notice from me, to allow PLA sufficient time to resolve its design issues, I again respectfully request that you reconsider your resolution of August 3, 2004, to commence an action for a declaratory judgment. Thank you very much for your consideration. Sincerely yours, ~!~e~ Marco de Sa e Silva cc: John F. Fischbach, Jefferson County Administrator Al Scalf, Director, Jefferson County Department of Community Development Michelle Farfan, Senior Planner, Jefferson County Department of Community Development David Alvarez, Office of Jefferson County Prosecuting Attorney Greg McCany, Port Ludlow Associates Mark Dorsey, Port Ludlow Associates Lyn Keenan, Reid Middleton SEA IS32941vl 65364-2 LOG ITEM #~o3 . Page._S;- .of S- ~..