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LAWYERS
1m
nEe 13 20D5
Davis Wright Tremaine LLP
ANCHORAGE BELLEVUE LOS ANGELES NEW YORK PORTLAND SAN FRANCISCO SEATTLE SHANGHAI WASHINGTON, D.C.
MARCO DE SA E SILVA
Direct (206) 628-7766
marc 0 de s ae silva@dwt.com
2600 CENTURY SQUARE
1501 FOURTH AVENUE
SEATTLE, WA 98101-1688
TEL (206) 622-3150
FAX (206) 628-7699
www.dwt.com
December 12,2005
Via Electronic Mail and First Class Mail
Al Scalf, Director
Jefferson County Department of Community Development
621 Sheridan
Port Townsend, W A 98368
Re: Port Ludlow Resort Development Project
Dear AI:
I am attaching the responses of Port Ludlow Associates LLC to the comments submitted to Jefferson
County regarding the applications of PLA for approval of a maj or Resort Plan Revision, Shoreline
Substantial Development Permit, Boundary Line Adjustment, and Administrative Code Interpretation
regarding the Port Ludlow Resort Development Project. In addition, I incorporate by this reference the
responses to comments contained in the final Port Ludlow Resort Plan Revision Final SEIS (2005)
and final Port Ludlow Marina Expansion Final SEIS (2002). We look forward to a hearing in January
2006. Thank you very much for your consideration.
Sincerely yours,
Da~s Wri~e\!:
~ Sa e Silva
lftA
Enclosure
cc: Michelle Farfan
Mike Bergstrom
Randy Verrue
Troy Crosby
Greg McCarry
Mark Dorsey
Diana Smeland
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Seattle
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Port Ludlow Associates LLC
PORT LUDLOW RESORT DEVELOPMENT PROJECT
RESPONSES TO PUBLIC COMMENTS
DECEMBER 12, 2005
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Port Ludlow Associates LLC
LUDLOW BAY VILLAGE RESORT PROJECT'
RESPONSES TO PUBLIC COMMENTS
DECEMBER 12, 2005
Dee l:m:~OPMENT I
TABLE OF CONTENTS
IN"TRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 1
BRIEF PROJECT DESCRIPTION ................................................................................................ 2
PROPOSED RESORT PLAN....... ......... ......................... ............... .............. ................. .... ........ ..... 2
DETAILED PROJECT DESCRIPTION ................................................. ..... ............ ......... ..... ........ 3
PROPOSED TEN-YEAR TERM OF SHORELINE PERMIT ...................................................... 7
ANALYSIS OF APPLICABLE DECISION CRITERIA .............................................................. 8
SEP A ENVIRONMENTAL REVIEW... ..... ...................... ............... ....... ....... ................... ............. 9
PLA RESPONSES TO AGENCY AND PUBLIC COMMENTS ................................................. 9
Comment No.1 (past construction under expired 1993 shoreline permit)................................. 9
Comment No.2 (no vested rights under expired shoreline permit).......................................... 10
Comment No.3 (past failure to satisfy conditions of 1993 shoreline permit).......................... 10
Comment No.4 (Project violates UDC) ................................................................................... 11
Comment No.5 (Project requires plat alteration)..................................................................... 11
Comment No.6 (Project violates existing restrictive covenants)............................................. 13
Comment No.7 (Project requires the consent of all town home owners) ................................ 17
Comment No.8 (project violates development agreement) ..................................................... 17
Comment No.9 (Project violates MPR Code) ......................................................................... 17
Comment No. 10 (PLA is obligated to construct resort amenities) .......................................... 17
Comment No. 11 (Project violates MPR statute) ..................................................................... 18
Comment No. 12 (PLA is not successor Declarant under Master Declaration) ....................... 18
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Comment No. 13 (Heron Road unsafe) ......................................,..............................:............ ...21
Comment No. 14 (setback from Heron Road)......................................._~_.H '-LOPMENT ....23
Comment No. 15 (County should have required setback for prior construction)..................... 24
Comment No. 16 (artificial pond).... .................... .............. ......... ........ ............... ............ ... ..... '" 25
Comment No. 17 (ownership of artificial pond)....................................................................... 31
Comment No. 18 (maintenance of artificial pond) ...................................................................32
Comment No. 19 (Admiralty III density, traffic, and storm water impacts) ............................32
Comment No. 20 (habitat and endangered species impacts) ....................................................32
Comment No. 21 (cloud on title) .............................................................................................. 32
Comment No. 22 (marina expansion).......................................................................................33
Comment No. 23 (marina Alternative 3 map) .......................................................................... 33
Comment No. 24 (DFW requirements) ........... .................................................. ........... ............ 33
Comment No. 25 (piecemealing of environmental review) ..................................................... 33
Comment No. 26 (adequacy of drawings) ................................................................................ 34
Comment No. 27 (no Corps approval)......................................................................................34
Comment No. 28 (marina fire danger)...... ........... .......... .......... .... ...... ....... .................. ........ ...... 35
Comment No. 29 (additional environmental impacts).............................................................. 35
Comment No. 30 (town home lots are unbuildable)................................................................. 35
Comment No. 31 (native gravesites) ........................................................................................ 36
Comment No. 32 (bonding) ...... ...... .................. .... ........ ............. .................. .......... .............. ..... 36
Comment No. 33 (stop-work order) .........................................................................................37
Comment No. 34 (nonconforming boat sign) ...........................................................................37
Comment No. 35 (debris cages and discharge catch basin) ..................................................... 37
Comment No. 36 (helipad location) ..... ..... ............... .... .................. .................... .... .... ..... ......... 37
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Comment No. 37 (club membership) ......................................................... .... .......................... 37
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Comment No. 38 (past illegal subdivision ofTH Lot 16 from TH Lot 16A) ..........................38
Comment No. 39 (public welfare doctrine) ..............................................................................38
Comment No. 40 (Building 600 violates development agreement) ......................................... 38
Comment No. 41 (LMC architectural control) ......................................................................... 38
Comment No. 42 (elevator maintenance) ................................................................................. 39
Comment No. 43 (use of artificial pond for storm water drainage) ......................................... 39
Comment No. 44 (plat or covenants contain use restrictions).................................................. 39
Comment No. 45 (BLA is a plat alteration, not a simple BLA) ............................................... 40
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mRODUCTION DEe 1 3<~O:~O;MENT I
This document offers the responses of Port Ludlow Associates LLC ("PLA") to the comments
submitted to Jefferson County, Washington (the "County"), by agencies and the public regarding
the applications ofPLA for the following land use and subdivision approvals:
. Major Resort Plan Revision under MPR Code Sections 3.905 and 3.906 (File No. ZON03-
00044, revised application filed June 24, 2005);
. Shoreline Substantial Development Permit under Jefferson County Shoreline Management
Master Program (File No. SDP05-00019, revised application filed June 24, 2005, replacing
prior File Nos. SDPOO-0014 and SDP04-0028);
. Boundary Line Adjustment under Subdivision Ordinance No. 04-0526-92 (File No. SUB05-
00030, application filed June 24, 2005); and
. Administrative Code Interpretation relating to Section 5.160 of the Jefferson County
Shoreline Management Master Program (File No. ZON05-00035, application filed June 24,
2005).
BACKGROUND
PLA is the owner and developer of the Resort at Port Ludlow (the "PLA Resort Property") in
unincorporated Jefferson County. The PLA Resort Property comprises (a) all ofthe Plat of
Ludlow Bay Village, which was recorded in the real property records of Jefferson County on
June 6, 1994, in Volume 6 of Plats, pages 228 to 233, A.F. No. 372517 (the "Plat"), except for
open space Tracts A, B, C, D, and E, which are owned by Ludlow Bay Village Association, and
Lots THl through TH18 inclusive (including Lots TH5A and TH6A) and Lots TH 26 through 32
(including Lots TH28A and TH29A), which are improved by town homes and are owned by
individual homeowners, and (b) an adjoining vacant tract commonly known as Admiralty III,
which also adjoins existing residential condominium properties commonly known as Admiralty I
and II.
The PLA Resort Property comprises The Inn at Port Ludlow, Port Ludlow Marina (including
moorage slips, office, and retail store), Harbormaster Restaurant, parking areas, vacant town
home lots, a detached residence on a single family lot, vacant single family lots, and the
Admiralty III area. The PLA Resort Property also comprises all ofthose areas located in the
"Resort Complex/Community Facilities Zone" (the "Resort Zone") under the Ordinance No. 08-
1004-99, the Port Ludlow Master Planned Resort Code (the "MPR Code") except the Admiralty
I and II condominiums, open space Tracts A, B, C, D, and E within the Plat, and those town
home lots within the Plat now owned by individual homeowners.
Jefferson County approved the MPR Code in 1999. The MPR Code established a "Resort Plan"
under Section 3.901, which defined the maximum uses and sizes of future development within
the Resort Zone. The current Resort Plan provides for significant commercial development and
limited residential development in the Resort Zone.
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In May 2000, Jefferson County, Pope Resources, and the affiliates of Pope Resources entered
into the Port Ludlow Development Agreement under which the parties establisherla. LOPMENT
completion of the Pope Resources property within Port Ludlow and vested the future
development of Port Ludlow under the land use procedures, subdivision, shoreline, critical areas,
and other ordinances then in effect. On August 8, 2001, PLA acquired all of the assets of Pope
Resources and its affiliates within Port Ludlow.
PLA, as successor to Pope Resources and its affiliates, subsequently determined that economic
conditions both inside and outside Port Ludlow made it necessary to adopt a different vision for
the completion of Port Ludlow. Significant commercial development within the Resort Zone no
longer appears economically feasible. However, additional residential development and
enhancements to existing commercial facilities, in lieu of significant new commercial facilities
within the Resort Zone, appear to be economically feasible.
The MPR Code allows for future revisions to the Resort Plan in the form of either major
revisions, which must be approved by the Jefferson County Hearing Examiner following a
hearing in a Type B process, or minor revisions, which are made by your Department without a
hearing in a Type A process. The Type A and Type B processes are described in the Land Use
Application Procedures Ordinance, Ordinance No. 04-0828-98, which is applied to all PLA
Resort Property project applications under Section 3.12.1 of the Port Ludlow Development
Agreement.
BRIEF PROJECT DESCRIPTION
The Project proposed by PLA comprises the construction of 101 attached or detached residential
dwelling units, additional marina vessel moorage (100 slips), a marina office and retail store
building (the "Waterfront Commercial Facility"), a private recreational facility, a maintenance
building, a central receiving dock, an emergency helipad, and surface parking areas. The
proposal also includes the demolition of the Harbormaster restaurant and construction of a new
Harbormaster restaurant and lounge building in a new location, the addition or enhancement of
recreational and aesthetic amenities (including an artificial pond, shoreline enhancements, open
space, and trail improvements), conversion of the existing conference center building to office or
other uses, and the construction of accessory facilities.
PROPOSED RESORT PLAN
PLA proposes the following revised Resort Plan:
Section 3.901 Resort Plan: The Resort Plan for future development of properties in the MPR-
RC/CF zone shall be limited, shall not exceed the scope of development set forth below, and
shall include no uses except those set forth below unless a major revision is approved (see MPR
Code Section 3.905). Changes to this Resort Plan that decrease the sizes and range of uses noted
below are allowed. The Resort Plan for future development shall be as follows:
1.
Gross interior square feet of new structures
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300,000 SF maximum
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(except emergency helipad, parking
areas, marina vessel moorage,
outdoor amenities, and other exterior
areas)
2. Restaurant and lounge (after relocation) 8,000 SF
3. Private recreational facility 7,500 SF
4. Central receiving dock 1,000 SF
5. Emergency helipad 600 SF
6. Offices (change in use of conference center) 8,400 SF
7. Maintenance building 2,900 SF
8. Surface parking areas 332 stalls + 55 stalls at the Inn
9. Marina vessel moorage expansion 100 additional slips
10. Marina offices, retail store, maintenance areal 2,600 SF
11. Lagoon, shoreline, open space, trail improvements (Not limited.)
12. Additional attached or detached single family 101 units
or multi-family residential dwelling units
13. Accessory uses to principal uses described above (Not limited.)
14. Roadways and utility infrastructure (Not limited.)
15. All existing structures and uses within the MPR-RC/CF zone as of the date of County
approval of this Resort Plan revision.
Building heights and impervious surface limits shall apply as set forth in MPR Code Section
3.40. Surface parking in addition to the parking noted above may be provided. Miscellaneous
support areas including laundry facilities and administrative offices may be included, but shall
not increase the gross square footage for the resort complex, except that the minor revision
process may be used to permit these facilities with up to a 5% increase in gross square footage.
DETAILED PROJECT DESCRIPTION
By letter application from PLA to the County dated June 25, 2003, PLA applied for a Resort
Plan revision. PLA subsequently modified its original letter application by letters to the County
dated April 29, 2004, and June 23, 2005. The April 29, 2004, modifications primarily increased
the level of detail provided in the application. The June 25,2005, modifications accomplished
the following:
. PLA removed all residential over-water construction features at the artificial lagoon or pond,
based on the Washington State Department of Ecology's (the "DOE's") letter dated October
25,2004, although it also asked the County for a formal administrative interpretation
regarding residential over-water construction;
. PLA proposed a phasing plan, based on a requirement imposed by the County, to ensure that
the completion of residential development coincides with the development of proposed
amenities;
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1 Also known as the "Waterfront Commercial Facility."
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. PLA submitted a new boundary line adjustment application and withdI:~wjts'pe1i.ding plat
alteration application (File No. SUB04-000l4), based on the conclusionthatthe~t
not require a plat alteration under MPR Code Section 3.903;
...1..0PMENT
. PLA submitted a new shoreline substantial development permit application in lieu of its
pending shoreline substantial development permit application (File Nos. SDPOO-00014 and
SDP04-00028); and
. PLA modified the design of the marina.
PLA's current proposed Resort Plan is less ambitious than the current Resort Plan described at
MPR Code Section 3.901, and its environmental impacts will be less significant.
PLA proposes that the Resort Zone serve as a destination resort for the traveling public rather
than large conference groups. This change will decrease the commercial Resort Zone facilities
identified in the current Resort Plan and will increase the number of residential units.
Conferences still will be accommodated, but on a smaller scale, and they will be housed in
existing facilities such as the Inn at Port Ludlow, the Bay Club, the Beach Club, and the
relocated Harbor Master Restaurant, rather than in an expanded Inn or new hotel. Large, outdoor
special events no longer will be accommodated. At build-out, development within the PLA
Resort Property will include the following structures and uses:
· Residential Units (101 new units, 89 existing)
The 190 existing and new residential units would consist of 64 existing stacked flat and town
home style condominium units within Admiralty I and II, 25 existing town homes within the
Plat of Ludlow Bay Village, the single existing single-family dwelling within the Plat, 39
new residential units in the Admiralty III area, and 62 new attached residential units within
the Plat. Vehicular access to existing town homes within Ludlow Bay Village will be via
Heron Road and will be separated from access to the adjacent Inn at Port Ludlow.
The new multi-family structures will maintain the existing architectural theme established in
Ludlow Bay Village (i.e., New England/Colonial) and will be 1,200 - 1,500 square feet in
size - smaller than existing town homes in Ludlow Bay Village. The smaller size will allow
for an over-all variation in product type and price range.
No residential units are currently proposed over the artificial lagoon or pond.
· Inn at Port Ludlow (37-room inn, restaurant, and lounge) (existing)
The existing Inn building will remain unchanged. However, vehicular access to the Inn will
be modified. Vehicular access to the Inn and its associated parking will be restricted to Gull
Drive and separated from access to the adjacent residential units. The existing 36 stall
parking lot will be reconfigured to provide 55 spaces. Regarding interior improvements, the
size of the formal restaurant has been reduced to double the size ofthe Fireside Lounge.
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· Waterfront Commercial Facility (new)
d.OPMENT
This one-story building will be located on the shoreline near the west end of the marina and
will contain the Dock Master's office, the marina maintenance area, and a retail store for
marina tenants and guests. This facility will be situated adjacent to the relocated Harbor
Master Restaurant. The building will maintain the New England/Colonial architectural
theme.
· Harbor Master Restaurant (120 seats existing; 90 seats after relocation) (existing and
new)
The existing restaurant building will be demolished, and the restaurant will be relocated to
the waterfront commercial facility near the marina. The seating capacity will be reduced
from 120 people to 90 people (inside seating for 60, together with outside seating for 30).
The restaurant will include space for Yacht Club and other meetings.
· Private Recreational Facility (new)
This two-story, 7,500 square foot indoor recreation facility will be located adjacent to the
waterfront commercial facility near the west end of the marina. The facility will include an
indoor-outdoor swimming pool, spa and fitness center and will be available only to
residential property owners within the Resort Zone and their guests, guests of the Inn, and
guests ofthe marina. The recreation building also will be designed in the New
England/Colonial style.
· LMC Beach Club Recreational Facility and Bridge Deck (existing)
No changes to this private facility or its parking areas are proposed.
· PLA Offices (change in use of existing building)
The old conference center along Oak Bay Road, in the north end ofthe Resort Zone,
presently is being leased to a church, which is applying for necessary land use approvals. If
the church use is not approved, then offices for PLA will be moved from their current
location (off Paradise Bay Road) to the conference center. Approximately 30 employees will
be located in this building, which contains approximately 8,400 square feet.
· Maintenance Building (new)
This 2,900 square foot building will be used as a maintenance facility for the Inn and other
Resort operations.
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· Off-Street Parking (existing and new)
. . . .. . "'" ..' ... .. .......LOPMENT I
All new resIdentIal umts wIll mclude off-street parkmg for two cars:' In'addmml,11 total ot
332 stalls will be provided in a series of paved surface parking lots for the marina,
commercial, and recreational uses in Ludlow Bay Village. Parking at the Inn will
accommodate an additional 55 vehicles.
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. Central Receiving Dock (new)
A central receiving facility approximately 1,000 square feet in area will be located within an
existing parking lot on the north side of Harbor Drive.
· Lagoon, Open Space, Shoreline, and Trail Improvements (existing and new)
A designated, signed trail system will be developed within the Plat to provide better
pedestrian circulation and access to public portions of the shoreline. This system will include
an 8- foot wide wooden boardwalk along the shoreline that will extend from the new
recreation facility, east to the Inn. Existing open space along the south side of the artificial
pond will be retained and re-landscaped; open space at the end of Burner Point also will be
retained. Parking for access to the public trails will be located at the upper community lot.
Vegetated slopes along the east side of Oak Bay Road and Harbor Drive will also be
retained. The southern portion of the Admiralty III area will remain undisturbed at this time,
but ultimately may be used for additional parking.
· Helipad for Emergency Evacuations (new)
A 20' by 20' paved helipad and accessory areas will be used by Fire District #3 and possibly
other emergency service providers. The pad will be located north of Marina View Drive
between Oak Bay Road and Olympic Place.
· Utility Infrastructure Improvements (existing and new)
Storm Drainage: Within the Plat, the existing storm drainage system consists of pipes from
catchments to oil/water separators, which drain to the artificial pond and ultimately to Port
Ludlow Bay. New water quality vaults will be added at each ofthe inlets to the artificial
pond to supplement water quality treatment. Within the Admiralty III area, new storm water
detention facilities, as well as water quality facilities will be required. Upgrades to the
downstream conveyance system may also be required.
Sanitary Sewer and Drinking Water: These services will be provided by Olympic Water and
Sewer Company. New hook-ups will be required, but the capacities ofthe existing systems
are adequate to handle the increased use.
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Additional Utility Infrastructure: Electric, telephone, and other utility services willbe
provided. ...LOPMENT
· Marina (280 existing slips, 100 new)
The marina expansion adds 100 vessel moorage slips to the existing 280-s1ip marina by
expanding the existing float system both westward and water-ward. The proposed
configuration of the new floats/slips is as follows:
· A-Dock will be extended 200 feet water-ward to accommodate fifteen new slips (eight
50-foot slips and seven 60-foot slips). A-Dock will serve as a floating breakwater to protect
the marina.
· B-Dock will be modified by the removal of the eight outermost slips.
· D-Dock will be extended 120 feet to the west to accommodate an additional twelve
36-foot slips.
· E-Dock will be extended 270 feet to the west to accommodate an additional 35 slips
(seven 50-foot, five 60-foot, and twenty-three 45-foot slips).
· The east side ofE-Dock will be reconfigured to accommodate twenty-three (thirteen
new) slips (thirteen 36-foot slips and ten 60-foot slips, to replace ten existing slips).
· A new F-Dock will be constructed waterward ofE-Dock. The new F-Dock will extend
530 feet westerly and 250 feet easterly ofthe central walkway. The new F-Dock will
accommodate 33 new slips (twenty-three 45-foot slips and ten 55-foot slips). F-Dock will
serve as a floating breakwater to protect the Marina.
· The existing 1,600-sq. ft. timber kayak float will be replaced in the same location with a
2,850-sq. ft. float with light transmission capabilities. The existing 680-sq. ft. dinghy float
on C-Dock will also be replaced with three new floats totaling 960 sq. ft.
PROPOSED TEN-YEAR TERM OF SHORELINE PERMIT
PLA requested by letter dated June 23,2005, that the County approve the amended and
consolidated application for a shoreline substantial development permit for a term of ten (10)
years. PLA made this request under the authority ofRCW 90.58.143(1), which provides in part
as follows: "Upon a finding of good cause, based on the requirements and circumstances of the
project proposed and consistent with the policy and provisions of the master program and this
chapter, local government may adopt different time limits from those set forth in subsections (2)
and (3) of this section as a part of action on a substantial development permit."
PLA believes there is good cause for a 10-year shoreline permit term. First, the County requires
and PLA has provided a phasing plan to ensure that certain required amenities are constructed
prior to completion of the project. The phasing of development delays the completion of
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development because no phase may be completed until prior phases have been completed and
until conditions precedent relating to amenities have been satisfied. Second, based on current . pi r 'T
economic conditions, it is our beliefthat the residential real estate market in Port Ludlow.catmB~ ,,~.:N_..J
absorb all 101 residential units within five or six years. Ten years is a reasonable term for the
complete market absorption of the proposed residential units. Third, an extended term is
consistent with the policies and provisions of the Jefferson County Shoreline Management
Master Program (2/6/98 Edition). And fourth, the other land use approvals sought by PLA (the
Resort Plan revision, boundary line adjustment, and code interpretation) do not expire.
ANALYSIS OF APPLICABLE DECISION CRITERIA
Major Resort Plan Revision. PLA's letter application dated June 23, 2005, regarding the
proposed Resort Plan revision, contains at Attachment Nos. 4 and 5 to the letter an analysis of
why the Project satisfies applicable decision criteria for the approval of a Resort Plan revision.
Those attachments are incorporated herein by this reference.
Shoreline Substantial Development Permit. Information showing how the Project satisfies
shoreline decision criteria has been provided in (a) the application for Shoreline Substantial
Development Permit (File No. SDP05-00019, revised application filed June 24, 2005), (b) the
Port Ludlow Resort Plan Revision Final SEIS (2005) and Port Ludlow Marina Expansion Final
SEIS (2002), and (c) Attachment Nos. 4 and 5 to PLA's letter application dated June 23, 2005.
Boundary Line Adjustment. The criteria for the approval of a boundary line adjustment are set
forth at RCW 58.17.040(6), which exempts the following from the provisions ofthe Subdivision
Act:
A division made for the purpose of alteration by adjusting
boundary lines, between platted or unplatted lots or both, which
does not create any additional lot, tract, parcel, site, or division nor
create any lot, tract, parcel, site, or division which contains
insufficient area and dimension to meet minimum requirements for
width and area for a building site.
The proposed boundary line adjustment merely adjusts boundary lines between platted lots, does
not create any additional lot, tract, parcel, site, or division, and does not create any lot, tract,
parcel, site, or division that contains insufficient area and dimension to meet minimum
requirements for width and area for a building site. PLA has not waived the right to make
boundary line adjustments within the Resort Zone. The application therefore complies with
RCW 58.17.040(6) and should be approved.
Administrative Code Interpretation. The analysis why the County should make an
administrative code interpretation that the artificial pond within the Plat of Ludlow Bay Village
is not subject to the residential over-water construction prohibition found in Section 5.160 ofthe
Jefferson County Shoreline Master Program is provided below in response to comments
regarding this issue.
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DEC 1 3 2005
SEPA ENVIRONMENTAL REVIEW
The County has conducted SEPA environmental review ofthe impacts of the l>rojectthr.ough..
preparation and review of four (4) draft and final environmental impacts statements and other
environmental documents:
LOPMENT
1. EIS for the Port Ludlow Development Program (1993);
2. EIS for the Inn at Port Ludlow (1993);
3. Port Ludlow Marina Expansion SEIS (2002); and
4. Port Ludlow Resort Plan Revision SEIS (2005).
In its pending applications, PLA proposes to develop (a) "Alternative 1" (a/k/a "Applicant's
Proposed Project" and "2003 Proposed Resort Plan") as described in the Port Ludlow Resort
Plan Revision Final SEIS (2005) except for the elimination of residential over-water
construction from the shoreline substantial development permit application,2 and (b)
"Alternative 5" (alk/a the "Response to DSEIS Comments Alternative") described in the Port
Ludlow Marina Expansion Final SEIS (2002).
However, PLA has publicly stated that ifthere are no appeals commenced by Project opponents
in connection with the County's approval of the pending applications, PLA voluntarily will agree
to (a) develop "Alternative 4" (alk/a "Response to Comments") instead of "Alternative I" as
described in the Port Ludlow Resort Plan Revision Final SEIS (2005), which will reduce by 14
the number of new residential dwelling units, will reduce by 40 the number of new marina slips,
and will accomplish other Project modifications, and (b) abandon its request for an
administrative code interpretation relating to residential over-water construction.
PLA RESPONSES TO AGENCY AND PUBLIC COMMENTS
Comment No.1 (past construction under expired 1993 shoreline permit): In 2002 and 2003,
PLA constructed town homes within the Plat of Ludlow Bay Village under a shoreline
substantial development permit that had expired in 1998.
. E-mail from Bert Loomis to Michelle Farfan, April 21, 2004
. E-mail from Bert Loomis to Al Scalf (DCD), June 28, 2004
. E-mail from Les Powers to Bert Loomis, August 1, 2004
. Letter from Les Powers to Al Scalf, August 13,2004.
2 Residential over-water construction will remain an issue to be resolved in PLA's pending
application for an administrative code interpretation, but the resolution of that issue on terms
favorable to PLA will not allow PLA to construct residential structures over the lagoon until a
subsequent shoreline substantial development permit decision has been made by the County.
PLA does not currently propose residential over-water construction.
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PLA Response: PLA does not deny this claim. When PLA built the town homes, ooth PLA and
the County assumed -- for a variety of reasons but without much deliberation --thatno l1eW
shoreline permit was required under the SMA. They learned otherwise in 2004, when Mr. ...LOPMENT
Loomis and Mr. Powers raised this issue for the first time. PLA offered to obtairi aiiew"~~' '--
shoreline substantial development permit for the structures in reliance on the expired shoreline
permit, but the County has determined that to require a missing permit years after completion of
construction of any structure would serve no lawful purpose. Ifthe issue had been raised during
the 21-day LUP A appeal period, then the County would have stopped construction until a new
shoreline permit had been obtained. However, under the Land Use Petition Act, RCW Chapter
36.70C and the equitable doctrines of laches and waiver, the construction of these buildings
should not now be disturbed.
Comment No.2 (no vested rights under expired shoreline permit): PLA's has no vested
rights under an expired shoreline permit.
. E-mail from Les Powers to Linda Hoffman, September 22, 2004
PLA Response: PLA does not claim to have vested rights under in any expired permits. PLA's
pending applications relating to the Project do not rely on any expired permits or on any claims
under the Washington vested rights doctrine.
Comment No.3 (past failure to satisfy conditions of 1993 shoreline permit): PLA failed to
satisfy at least 10 of the 51 mitigation measures or conditions imposed in the 1993 shoreline
substantial development permit that was issued in connection with the Plat of Ludlow Bay
Village (SDP91-017).
· Memo from Bert Loomis to Michelle Farfan, April 17, 2004
· E-mail from Les Powers to Linda Hoffman (DOE), Sept. 17, 2004
PLA Response: The claim that any of the 1993 shoreline conditions were not satisfied is without
merit: (1) Final plat approval ofthe Plat of Ludlow Bay Village in 1994 was an official and
binding determination that the shoreline conditions, which had been incorporated into the
preliminary plat conditions, had been fully satisfied (see RCW 58.17.150 and 58.17.170); (2)
County files for this project contain staff reports and other records containing determinations that
the shoreline conditions were satisfied; and (3) Mr. Loomis and Mr. Powers did not challenge the
County's determination that the shoreline and other conditions were satisfied within the time
limits required (see RCW 58.17.180 and 90.58.180(1)), and their claims therefore are barred for
their failure to exhaust their administrative remedies.
Even if there had been unsatisfied conditions under the 1993 shoreline permit, it would not affect
the consideration of subsequent shoreline permit applications for the following reasons: (1) The
appropriate remedy for shoreline noncompliance is a process of notices, hearings, potential fines,
potential permit rescission, and potential liability for attorney fees, all as described under RCW
90.58.140(8),90.58.210,90.58.220, and 90.58.230; (2) There is no code authority or legal
precedent that would require or support a local government's refusal to accept and process a new
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shoreline application even if conditions were not satisfied under an expired~horeli~nhi~ 2005
obtained by a prior owner for the same property; and (3) The individuals p.ave ha<;lten.years to
submit formal complaints to the County that the shoreline conditions were npt ~atis:fjed, to
demand that the County prosecute their claims, and to commence litigatiou-io:.compe
to prosecute their claims, and their failure to do so in a timely fashion bars their claims under the
equitable doctrines of laches and waiver.
LLOPMENT
Ten years is too long to wait to complain about compliance with permit conditions. Under the
doctrines of laches and waiver, courts have ruled that citizens may not delay interminably
bringing complaints about local government land use decisions. See Clark County PUD No.1 v.
Wilkinson, 139 Wn.2d 840,848-849,991 P.2d 1161 (2000); Buell v. Bremerton, 80 Wn.2d 518,
522-23,495 P.2d 1358 (1972).
Comment No.4 (Project violates UDC): PLA's proposed development ofthe village violates
Jefferson County Unified Development Code Section 7.2.
· Letter from James Brannaman to Al Scalf, November 2,2005
. Letter from Harry Cloutier to Al Scalf, November 4,2005
. Letter from Allen & Catherine Standish to Al Scalf, November 3, 2005
PLA Response: The Jefferson County Uniform Development Code does not govern the
development of land owned by PLA within the Port Ludlow MPR. Under the Port Ludlow
Development Agreement, the development of land owned by PLA is governed by and vested
under those ordinances described in the agreement. The UDC is not described among the
applicable development standards under the agreement.
In addition, Unified Development Code Section 7.2 (now codified at JCC 18.35.060-
18.35.080) imposes additional decision criteria on boundary line adjustments than are imposed
under RCW 58.17.040(6). The County does not have authority to impose additional criteria than
are imposed under RCW 58.17.040(6). See City of Seattle v. Crispin, 149 Wn.2d 896, 71 P.3d
208 (2003).
Comment No.5 (Project requires plat alteration): PLA's proposed development requires a
plat alteration under MPR Code Section 3.903.
· Letter from Ludlow Maintenance Commission to DCD, November 2,2005
· Letter from Bruce & Dorothy Schmitz to DCD, November 3, 2005
. Letter from PL V Council to Al Scalf, November 3, 2005
· Letter from PL V Council to Al Scalf, November 3, 2005 (a second letter)
· Letter from Allen & Catherine Standish to Al Scalf, November 3, 2005
PLA Response: This claim misinterprets MPR Code Section 3.903, which provides in full as
follows:
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Concurrent with issuance of any permit for new resort ,
development, any existing, pending, or vested development rights,
for projects or parts or phases of projects that: ---.,
1) have not been developed, and
2) are located in the RC/CF zone, and
3) are not included in the described Resort Plan
shall be withdrawn, vacated or otherwise permanently released.
For any subdivision that has been approved and recorded, but only
partially developed, a plat alteration shall be applied for and
processed as set forth in state law and in applicable county
ordinances. Nothing in this ordinance is intended to affect the
process or the specific outcome of any application for such a plat
alteration.
...LOPMENT
MPR Code Section 3.903 was intended to prevent the developer of the resort from holding two
alternative and conflicting development rights: the right to build a major commercial facility (as
described in the current Resort Plan) and the right to complete construction of the 35 town homes
and one single-family residence not included in the current Resort Plan (but described in the
1994 Plat of Ludlow Bay Village). Section 3.903 requires the developer to relinquish the right to
complete the residential development as platted (the only "vested development rights" not
included in the current Resort Plan) upon "issuance of any permit for new resort development."
There are two kinds of "plat alterations." The first is a boundary line adjustment, which is
exempt from the Subdivision Act under RCW 58.17.040(6). The second is a nonexempt plat
alteration, which is governed by RCW 58.17.215. That section expressly states, "When any
person is interested in the alteration of any subdivision or in the altering of any portion thereof,
except as provided in RCW 58.17. 040(6), that person shall submit an application...." (emphasis
supplied). The statute thereby acknowledges two different kinds of plat alterations, one of which
is a boundary line adjustment exempted under RCW 58.17.040(6), the other of which is a
nonexempt plat alteration that must be processed according to the procedures described in RCW
58.17.215. See also Ordinance No. 04-0526-92. PLA technically has complied with the
requirements ofMPR Code Section 3.903 by filing an application for a boundary line
adjustment, which is a form of plat alteration, according to RCW 58.17.215.
Moreover, the opponents of the Project ask the County to apply the second sentence ofMPR
Code Section 3.903 both literally and in isolation, without regard for the apparent legislative
intent behind the section and without regard for the first sentence of the section, but to do so
makes the second sentence meaningless. By its literal terms the second sentence of the section
does not describe what changes to the approved plat a plat alteration application must propose,
nor does it describe what the approved plat alteration must accomplish, nor des it establish when
the plat alteration must be proposed or approved, nor does it require that the plat alteration
application even be approved (only that it be "applied for and processed"). In other words, PLA
could submit a plat alteration application, the effect of which would be to swap the numbers of
two of the existing lots or parcels, and then regardless whether the County approved or denied
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the application, PLA would have complied with the literal requirements of the second sentence
of this section.
The only logical interpretation ofMPR Code Section 3.903 is that all of its provisions must be
read together and in a manner that is consistent with its understood legislative purpose. This
section cannot be applied in this case to require a nonexempt plat alteration under RCW
58.17.215 for the following reasons:
· If the County approves PLA's applications, then all ofPLA's "vested development rights"
will be "included in the described Resort Plan" and there will be none to "withdraw, vacate,
or release" under this section. Ifthe County does not approve PLA's applications, then
there will be no "issuance of any permit for new resort development" to trigger the
application of this section.
· If the County approves PLA's applications, then the Plat of Ludlow Bay Village will not be
"only partially developed." All ofthe former TH lots are proposed to be fully developed
with attached multi-family residential units.
· PLA has applied for a boundary line adjustment, and a boundary line adjustment is an
exempt plat alteration under the express authority ofRCW 58.17.215.
· In the present case, there is nothing that could be or should be accomplished by a
nonexempt plat alteration under RCW 58.17.215 that cannot be accomplished by an
exempt plat alteration - that is, by a boundary line adjustment exempt under RCW
58.17.040(6).
Comment No.6 (Project violates existing restrictive covenants): The Project violates the
restrictive covenants governing the Plat of Ludlow Bay Village because the Project increases the
number of dwelling units within the Plat, creates some dwelling units that are stacked
condominium flats rather than town homes or detached single-family residences, and increases
the membership in the two owner associations within the Plat, all without the approval of the
existing town home owners.
· Letter from Les Powers to Al Scalf, June 14, 2004
· E-mail from Les Powers to Al Scalf, October 4, 2005 r;--.'..
· Memorandum written by Gregg & Patricia Jordshaugen, Octobet3J;;~005
· Letter from James Brannaman to Al Scalf, November 2,2005
· Letter from Lewis Hale to Al Scalf, November 3, 2005
· Letter from PL V Council to Al Scalf, November 3,2005
M
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PLA Response: This claim is based on a misinterpretation of the "Master D.e(;:!l:l!ra.-!iO~,of ".. ',',' '-L(lP/1r:~, I
Covenants, Conditions, Restrictions, Assessments, Charges, Liens, Reservations and Easemeht~-~~
for Ludlow Bay Village" dated May 25, 1994, and recorded under Jefferson County Auditor's
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File Nos. 372516 and 372695, together with an Amendment dated April 25, 1995, and recorded
under Auditor's File No. 381139 (collectively, the "Master Declaration").3
The Master Declaration contains no covenants that the number of residential units will not be
increased or decreased, nor that condominium units will not be created, nor that SF Lots must be
used for detached single-family residential development, nor that TH Lots must be used for town
home development, nor that a new condominium owners association will not be created within
the plat. In 2004, the Office of the County Prosecutor reviewed this claim and determined that
the Project does not violate the declaration of restrictive covenants.
The original Plat of Ludlow Bay Village was recorded on June 6, 1994, in Volume 6 of Plats,
pages 228 to 233. At the time the plat was approved, restrictive covenants were filed in the form
of the Master Declaration. No other declaration of restrictive covenants affects Ludlow Bay
Village. The plat contains no restrictive covenants.
The Subdivision Act does not define "covenants" or "restrictive covenants." See RCW
58.17.020 (definitions). However, the 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
parties that something is done, will be done, or will not be done.
In modern usage, the term covenant generally describes promises
relating to real property that are created in conveyances or other
instruments.
3 In addition, this claim would be relevant to the decision whether to approve or deny PLA's
pending applications only ifPLA were seeking a nonexempt plat alteration under
RCW 58.17.215, which provides in relevant part as follows:
When any person is interested in the alteration 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 of the city, town, ; ,,--;::
or county where the subdivision is located. The application shall
contain the signatures ofthe majority of those persons having an r
ownership interest of lots, tracts, parcels, sites, or divisions in the
subject subdivision or portion to be altered. If the subdivision is
subject 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 parties subject to the covenants
providing that the parties agree to terminate or alter the relevant I....:".
covenants to accomplish the purpose of the alteration of the
subdivision or portion thereof
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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 easeinerits,'irgreat~LOPMENT I
deal of descriptive information about the plat (including lot addresses and lot numbers), and
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 no restrictive covenants
contained within the plat.
The contention that the lot addresses and lot numbers contained within the plat are restrictive
covenants ignores the distinction between a covenant - a contract, a promise, a commitment --
and mere descriptive information. By the standard of the opponents of the Project, anything
appearing within the plat is a restrictive covenant, including the surveyor's office phone number.
This 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 implied on
the face of the plat that the addresses will not be changed or increased in number.
The plat and Master Declaration contain no covenants regarding the density of residential
development within the plat. They also do not contain covenants that forbid stacked residential
units or the condominium form of ownership or that would prevent anything but a detached
single family residential use on "SF" lots or a town home residential use on "TH" lots.
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:
(a) It is contained within a mere recital, not within the binding terms of the declaration; (b) It is a
mere statement of the Declarant's intent in 1994, not a promise to perform any act in the future;
and (c) 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").
No one has cited 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. Some have argued that there are implied restrictive 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 not fond of implied restrictive covenants. "Restrictive covenants
upon the use of real property will not be extended beyond the clear meaning of the 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 (1910); Hunter Tract Improvement Co. v. Corporation of Catholic
Bishop ofNisqually, 98 Wash. 112, 167 P. 100, L.R.A. 1918A, 297 (1917); Miller v. American
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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
include any use not clearly expressed. Doubts must be resolved in favor ofthe free use ofland."
Burton v. Douglas County, 65 Wn.2d 619,622,399 P.2d 68 (1965), citing Granger v. Boulls, 21
Wash.2d 597, 152 P.2d 325, 155 A.L.R. 523 (1944); 14 AmJur. 9211 at 620.
It would be reversible error to conclude either that the listing of lot addresses creates a restrictive
covenant that the density of the lots will not change in perpetuity, or that the use of "SF" or "TH"
as a prefix in a subdivision lot number creates a restrictive covenant that the lot will be used in
perpetuity only for single family or town home residential uses, or that any other residential
density or use covenants can be implied from the plat or Master Declaration.
When they purchased their lots in Ludlow Bay Village, town home owners agreed to be bound
by the Master Declaration, that the Ludlow Bay Village Association Board of Directors would
have the "exclusive right" to interpret the Master Declaration and to determine "[a]ll disputes,
complaints or other matters relating to the Master Declaration or other Governing Documents."
Master Declaration 94.25 at 14-15 and 9 19.1 at 42. The Master Declaration also requires that all
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 Committee." Master Declaration 94.25 at 15. "In the absence of any
adjudication to the contrary, the Master Association's construction or interpretation ofthe
provisions herein shall be final, conclusive and binding as to all persons and property benefited
or bound by this Master Declaration." Master Declaration 919.1 at 42. In 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 to 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 ofthe Master Declaration, and
because the question is a "matter relating to the Master Declaration," the opponents of the
Project are obliged to submit the matter to the Board of Directors of Ludlow Bay Village
Association, which then can make a determination whether or not there is a violation. Until the
opponents ofthe project have submitted this matter to the Board of Directors, they themselves
have acted in violation of the Master Declaration by failing to follow the administrative remedies
and processes available to them.
Even if the Master Declaration did contain residential density or use restrictions with which the
Project would conflict, PLA (as successor Declarant to Pope Resources) is exempt from any such
restrictions:
Nothing contained 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 develorynent '.
[ or] sale of property within Ludlow Bay Village. ' .
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Master Declaration Section 4.24.
Comment No.7 (Project requires the consent of all town home owners): PLA's proposed'
development of the village requires homeowner consent under RCW 58.17.215.
~LOPMENT I
· E-mail from Les Powers to Bruce Schmitz, Sept. 29, 2004
. RCW 58.17.215
· E-mail from Les Powers to Al Scalf, October 4, 2005
· Letter from Ludlow Maintenance Commission to DCD, November 2, 2005
· Letter from Bruce & Dorothy Schmitz to DCD, November 3, 2005
. Letter from Lewis Hale to Al Scalf, November 3,2005
PLA Response: PLA agrees that if it were seeking a nonexempt plat alteration, and ifthat
nonexempt plat alteration would result in the violation of a restrictive covenant, then the consent
of all parties subject to the restrictive covenants would be required under RCW 58.17.215.
However, PLA is not seeking a nonexempt plat alteration, and even if it were, no part ofthe
Project violates any restrictive covenant (see discussion above).
Comment No.8 (Project violates development agreement): The Project violates the Port
Ludlow Development Agreement.
PLA Response: There is no provision of the Port Ludlow Development Agreement that is
inconsistent with the Project. The Development Agreement nowhere imposes on PLA the
obligation to construct certain improvements or to refrain from constructing certain
improvements within the Port Ludlow MPR. Instead, the Development Agreement establishes
the development standards, flexibility objectives, land use procedures, vested rights, and other
matters affecting development.
Comment No.9 (Project violates MPR Code): The Project violates the MPR Code.
PLA Response: There is no provision of the MPR Code that is inconsistent with the Project
except MPR Code Section 3.901, the existing Resort Plan, which PLA has asked the County to
revise as described in PLA's Major Resort Plan Revision application.
Comment No. 10 (PLA is obligated to construct resort amenities): PLA is obligated to
construct certain amenities within the Port Ludlow MPR under the Port Ludlow Development
Agreement, MPR Code, or RCW 36.70B.180.
PLA Response: None ofthe cited authorities requires PLA or anyone else to construct amenities
within the Port Ludlow MPR. The Port Ludlow Development Agreement does not require the
construction of amenities. Section 3.402 ofthe MPR Code merely describes permitted uses (not
required uses) within the Resort Zone. Section 3.90 ofthe MPR Code merely describes the
current Resort Plan for future development of properties within the resort zone. The current
Resort Plan does describe many amenities. However, the MPR Code nowhere requires that PLA
construct those amenities. They are permitted uses, not required uses. RCW 36.70B.180
L~ ITEM 17
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describes the legal effect of a development agreement but does not address the i$sue of
amenities.
~LOPMENT
Comment No. 11 (Project violates MPR statute): The proposal violates RCW 36.70A.362.
· Memorandum written by Les Powers, November 4, 2005
PLA Response: This claim is based on a misinterpretation ofRCW 36.70A.362. The County's
designation of the Port Ludlow MPR in August 1999 was a determination by the County that the
Port Ludlow MPR satisfied the criteria for the designation of an existing master planned resort
under RCW 36.70A.362. RCW 36.70A.362 establishes criteria for the designation of existing
master planned resorts, but it does not require those resorts, after they have been designated, to
satisfy performance criteria with respect to recreational amenities, resort amenities, or any other
matter. Whether a designated master planned resort continues to earn that designation is a
legislative and planning decision, not a decision criterion for approval of land use or subdivision
applications within the MPR.
Comment No. 12 (PLA is not successor Declarant under Master Declaration): PLA is not
the successor declarant to original Declarant Pope Resources under the Master Declaration.
· Memorandum written by Gregg & Patricia J ordshaugen, October 31, 2005
· Memorandum written by Les Powers, November 4, 2005
PLA Response: This claim is based on misreading of the Master Declaration. The claim rests
entirely on Section 1.11 of the Master Declaration, which provides as follows:
"Declarant" shall mean Pope Resources, a Delaware Limited
Partnership, organized under the laws of the State of Delaware.
Because the definition of "Declarant" in Section 1.11 of the Master Declaration does not refer to
the "successors and assigns" of Pope Resources, the Jordshaugens and Mr. Powers claim that
PLA is not the Declarant under the Master Declaration. They state that there is no indication that
the status of Declarant was intended to apply to any successors and assigns of Pope Resources
and that there is no reference to any such successors and assigns in any provision of the Master
Declaration.
Their claim, however, overlooks Section 2.1 ofthe Master Declaration, which provides in part as
follows:
This Master Declaration, as hereafter may be modified or amended, shall run with
all property within Ludlow Bay Village and shall be binding upon and inure to the
benefit of Declarant, the Associations, all Owners, Residents and Occupants, and
their successors and assigns.
(Emphasis supplied). Under this provision, the Master Declaration is binding upon and inures to
the benefit of the successors and assigns of the parties. Pope Resources, the original Declarant,
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was a party to the Master Declaration. The Master Declaration therefore is binding upon and____.______
inures to the benefit of the successors and assigns of Pope Resources. A successor is "One--ihat
succeeds or follows; one who takes the place that another has left, and sustains the like part or
character; one who takes the place of another by succession." Black's Law Dictionary at 1283
(5th ed. 1979). PLA is the successor and assign of Pope Resources because PLA in August 2001
acquired the entire interest of Pope Resources in Port Ludlow, accepted a written assignment
from Pope Resources and its affiliates of their obligations and rights under the Port Ludlow
Development Agreement, and took the place of Pope Resources as the developer ofthe Port
Ludlow Master Planned Resort. The Master Declaration therefore is binding upon and inures to
the benefit of PLA.
The claim also overlooks Washington common law regarding successor declarants, under which
PLA is a successor declarant. In a recent Washington case, the court examined whether certain
entities were "declarants" under the Washington Condominium Act and whether they had
succeeded to the special declarant rights of the previous declarant, even though there was no
formal assignment of those special declarant rights to the entities. One Pacific Towers
Homeowners' Association v. HAL Real Estate Investments, Inc., 148 Wn.2d 319,61 P.3rd 1094
(2002). In determining whether the entities had "succeeded" to the rights of the previous
declarant, the court determined that it was appropriate, in the absence of a statutory definition of
the term, to look to the ordinary meaning ofthe phrases "succeed to", "successor in interest", and
"succession". One Pacific Towers, 148 Wn.2d at 330. The court cited the language of
Webster's Third New International Dictionary 2282 (1993), for the following definition of
"succession":
[T]he change in legal relations by which one person comes into the enjoyment of
or becomes responsible for one or more of the rights or liabilities of another
person...: the act or process of one person's taking the place of another in the
enjoyment of or liability for his rights or duties or both.
One Pacific Towers, 148 Wn.2d at 327. The court concluded that the entities were "declarants"
under the Washington Condominium Act because they exercised the rights to which a declarant
was entitled, even though there had been no formal transfer to the entities ofthe declarant's
special declarant rights.
In a recent unpublished Washington case, Redmond-Pacific Associates General Partnership v.
Sixty-OJ Association of Apartment Owners (No. 51634-5, Division I) (2004), the court also
reviewed whether entities were to be considered successor declarants under a condominium
declaration. The court determined that it should look to principles of contract interpretation to
determine whether, under the condominium declaration, a party was a "successor" ofthe
declarant, or instead was an ordinary owner of properties within the condominium. The court
examined a variety of factors such as the development functions exercised by the party that was
said to be the successor, the number of units conveyed, the period oftime that the declarant or its
successors were attempting to exercise control, and whether the documents transferring the units
evidenced any intent to convey the rights or responsibilities ofthe original declarant. The court
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concluded, based on its examination of the various factors, that it could not determine as a matter
of law that the entities were not successor declarants.
The facts surrounding the succession of interests in Ludlow Bay Village make clear that PLA
became the successor or assignee of the original Declarant under the Master Declaration. By
deed recorded December 30, 1998 (A.F. No. 417731), Pope Resources conveyed for no
consideration all of the residential lots in Ludlow Bay Village to its affiliated entity, Olympic
Real Estate Development LLC ("ORED"), and by separate deed Pope Resources conveyed for
no consideration all ofthe commercial parcels in Ludlow Bay Village to another affiliated entity,
Olympic Resorts LLC ("Resorts"). ORED and Resorts subsequently sold all of their interests in
Ludlow Bay Village to PLA by deeds recorded August 8, 2001. It is clear from the documents
relating to the PLA transaction that ORED and Resorts intended to transfer to PLA all oftheir
interests in Ludlow Bay Village, that PLA was assuming the obligations of ORED and Resorts in
Ludlow Bay Village, and that ORED and Resorts retained no interests in Lud\ow Bay Village
following the transfer. For example, in the deed from ORED to PLA, ORED conveyed the
residential lots "including without limitation all easements, mineral rights, other rights, and
other interests appurtenant thereto."
The deeds conveying title to PLA conveyed all of the real property interest that ORED and
Resorts then held in Ludlow Bay Village. The purchase and sale agreement between Pope
Resources and its affiliates as sellers and PLA as buyer and the other closing documents
delivered in that transaction were intended to convey all interests of the sellers in the Port
Ludlow real property that was conveyed to PLA. PLA continued to market residential lots in
Ludlow Bay Village under a common promotional approach. Since August 8, 2001, PLA has
assumed and has undertaken all ofthe obligations of the Declarant under the Master Declaration.
It is clear, based on the Master Declaration and these facts, that PLA is the successor Declarant
to Pope Resources and that in acquiring the interests of ORED and Resorts in Ludlow Bay
Village, PLA was stepping into the shoes of Pope Resources, rather than simply acquiring title to
individual lots as a retail lot buyer.
The primary objective in interpreting restrictive covenants that run with a parcel of land is to
determine the intent of the covenants, giving language its ordinary and common meaning. Riss
v. Angel, 131 Wn.2d 612,621,934 P.2d 669 (1997). The document is to be construed in its
entirety, and the relevant intent is that of those establishing the covenants. Riss, 131 Wn.2d at
621. For purposes of determining the intent or purpose of a restrictive covenant that runs with
the land, it is appropriate to consider extrinsic evidence of the circumstances surrounding the
agreement establishing the covenant, if such evidence will illuminate the meaning of specific
words or terms used in the covenant. Hollis v. Garwall, Inc., 137 Wn.2d 683, 974 P.2d 836
(1999). These general principles support PLA's position because the stated intent of the Master
Declaration is to bind and benefit the successors and assigns of the parties, including the original
Declarant, and a land developer who acquires the entire interest of an original Declarant in a land
development project with the declared intention of completing the development is the successor
of the original Declarant.
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Comment No. 13 (Heron Road unsafe): Heron Road is dangerous and suffers from design
defects.
. E-mail from Jim and Linda Brown (homeowners) to Les Powers, July 29,2004
. See Review ofEIS, conducted by Edward Stevens & Associates (an engineering firm
hired by Les Powers)
PLA Response: The design of Heron Road was approved in 1993 in the approval of the
preliminary plat of Ludlow Bay Village. Town home owners had the opportunity to inspect the
road before buying their homes. The road alignment and location cannot be changed now
without the agreement of all owners, and PLA will not agree to change either because there is no
credible evidence that the road is dangerous or suffers from design defects, no injury accidents or
other serious accidents along the road during the past ten years of use, and no more than one
minor collision along the road during the past ten years.
Traffic studies were prepared for the resort SEIS. The traffic studies referenced in some of the
comment letters to "external" roads refer to specific intersections outside the Project site:
. SR 104/Paradise Bay Road
. SR 104/SR 19 (Beaver Valley Road)
. SR 19/0ak Bay Road
. Oak Bay Road/Paradise Bay Road
· Paradise Bay Road/Teal Lake Road
. Oak Bay Road/Walker Way
All ofthese intersections operate under minor street stop sign control except for the intersection
of Oak Bay Road and Paradise Bay, which is controlled by stop signs in all directions. These
roads have sufficient volumes of traffic in order to be able to apply the standard in the industry
measurements of "level of service" analysis, which may be found in Section 3.6.1 of the final
resort SEIS. Level of service analysis typically is performed on roadways where existing and
projected traffic volumes historically demonstrate the potential for compromised traffic flow.
The final resort SEIS provides an analysis of internal circulation within the Resort. However,
these roads did not demonstrate volumes sufficient to allow for a level of service analysis.
Section 3.6 of the final resort SEIS described the existing conditions for these internal roadways,
described probable environmental impacts, and described mitigation measures. That analysis is
incorporated herein by this reference. One important mitigation measure is that the Project will
eliminate Inn access from Heron Road, thereby significantly reducing vehicle trips along the
portion of Heron Road that adjoins the existing town homes.
In the traffic impact analysis, Section 3.6.2 ofthe final resort SEIS provided the following
analysis of internal circulation under Alternative 1:
F
Alternative 1 would not significantly change the geometrics bf th~
existing interior road network, although changes to the existing
\ i
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traffic patterns would occur due to a change in the configuration of
the Inn's parking lot, and the relocation ofthe Harbor Master
Restaurant.
The proposed proj ect includes eliminating the existing access from
Heron Road to the Inn parking, although access for emergency
vehicles will be maintained via two, 20-foot driveways from Heron
Road. Closing the access between the Inn and Heron Road will
result in a hammerhead turnaround at the south end of Heron Road.
This turnaround, coupled with the emergency access, has been
reviewed and approved by Fire District No.3.
Closing the existing inn access will result in restricting vehicular
use of the east leg of heron road to the abutting tow11home
residents. Thirteen tow11home units are situated at the south end of
heron road, in the vicinity of the inn, and an additional 28 units
are/would be situated along heron road, north of the inn and the
artificial lagoon, up to the first (easterly) overflow parking access
near the existing harbor master restaurant. The estimated future
number of daily trips on this section ofthe roadway would be
approximately 220 adt, which falls below the 400 adt threshold for
jefferson county's 18-foot roadway section. This amount of
traffic is also well below any capacity constraint for a two-lane
roadway.
Moving the Harbor Master Restaurant to the shoreline area west of
Gull Drive and accessing the Inn from Gull Drive will remove
vehicular traffic from Heron Road, and to the extent that this traffic
used "the loop", will remove that traffic from the east leg of Heron
Road as well.
Section 3.6.3 ofthe final resort SEIS also discussed traffic mitigation measures:
Revisions to the internal site circulation/access associated with
Alternative 1 (i.e., eliminating the existing access from Heron
Road to the Inn parking and relocation of the Harbor Master
Restaurant) will result in restricting vehicular use of the east leg
of Heron Road to the abutting tow11home residents. This action
will mitigate many of the concerns associated with additional
traffic, since the Harbor Master Restaurant and the Inn will be
served from Gull Drive rather than Heron Drive. Because the
volume of traffic on Heron Road and Gull Drive is within the
capacity of the roadways, and traffic on the east leg of Heronr--c
Road will be reduced, no street improvements are warranted. I
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To further enhance local access operations (i.e. encourage low
speeds and provide motorist guidance) within the Resort, it is
recommended that directional signage to the existing and
proposed destinations be installed/enhanced along the internal
roadways, 15-mph speed limit signs be installed, and Heron
Drive be signed for local access/residents 011ly.
...d}PMENT
Comment No. 14 (setback from Heron Road): MPR Code Section 3.105 requires a 20-foot
setback from Heron Road.
. Letter from Les Powers to Al Scalf, August 13,2004
. Memo from Bert Loomis to Al Scalf, July 28, 2004
. Permit issued by County, Oct. 25,2002 (MLA02-00496)
· Letter from Sue & Gary Kaysinger to Al Scalf, October 30, 2005
PLA Response: This claim is based on a misinterpretation of the MPR Code.
Under MPR Code Section 3.405, which governs dimensional requirements in the MPR-RC/CF
zone, "Single family residential uses are subject to the requirements of section 3.10," and "Multi-
family uses and structures are subject to the requirements of section 3.30." Under MPR Code
Section 3.105, single family residential uses must provide minimum setbacks and 45 percent
maximum impervious surfaces. Under MPR Code Section 3.305, multi-family uses and
structures must provide 55 percent maximum impervious surfaces but no minimum setbacks.
The threshold question is whether the construction of a side-by-side town home on an existing
town home lot within the Plat of Ludlow Bay Village constitutes the construction of a single
family or a multi-family use or structure. For the following reasons, the construction of a side-
by-side town home on an existing town home lot within the Plat of Ludlow Bay Village is the
construction of a multi-family use or structure, subject to the same development standards as a
stacked home.
While the MPR Code does not define the terms "single family" or "multi-family," but under all
applicable legal authorities an attached town home is a multi-family residential use and structure.
4
Also, under the MPR Code the construction of a side-by-side town home on an existing town
home lot within an existing subdivision, such as the Plat of Ludlow Bay Village, is not single-
family construction (for which larger setbacks are required), because MPR Code Section 3.10
does not regulate single-family attached dwelling units within existing subdivisions such as the
Plat of Ludlow Bay Village. MPR Code Section 3.102 regulates only "single family detached
4 E.g., UDC 918.10.040: "Dwelling unit, multiple-family" means one or more structures
containing three or more dwelling units; UDC 918.10.040: "Dwelling unit, two-family" (duplex)
means a single structure containing two dwelling units; and UDC 918.10.190: "Single-family
residence" means a dwelling unit designed for and occupied by no more than one family.
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dwelling units," and MPR Code Section 3.103 regulates only "single family attached dwelling
units. . . as part of a new subdivision." By comparison, MPR Code Section \3.302, which
regulates multi-family uses and structures, includes coverage oftown homes Hl.ciisting_---.-:,__ ...LOPMENT J
subdivisions.
Jefferson County could not have intended to apply the single-family development standards of
MPR Code Section 3.10 to the construction of attached town homes within the Plat of Ludlow
Bay Village because it would be inconsistent with other parts of the MPR Code. If the single-
family development standards ofMPR Code Section 3.10 are applied to town homes, then new
town homes would not be permitted within existing platted town home lots because they would
fail to comply with all MPR Code Section 3.10 development standards, including density,
minimum lot area, minimum lot width, setbacks, and impervious surfaces. This would contradict
MPR Code Section 3.901, which expressly allows the construction of additional town home lots
within the Plat of Ludlow Bay Village.
To conclude that side-by-side attached homes are "single-family" but stacked homes are "multi-
family" requires the conclusion that Jefferson County intended to establish different setback and
lot coverage standards for side-by-side attached homes than for stacked homes of the same
density, height, footprint, and building envelope. That conclusion - and that intent - would be
irrational. There is no rational basis on which Jefferson County would have required a 20- foot-
front yard setback and 45 percent impervious surface limit for side-by-side attached homes but
no front yard setback and a 55 percent impervious surface limit for stacked homes of the same
density, height, footprint, and building envelope.
There is no evidence in the MPR Code, development agreement, or elsewhere that the MPR
Code was intended to prohibit the construction of attached town homes within the platted town
home lots in Ludlow Bay Village.
Finally, the development of harmonious structures and uses is good land use planning. No
public purpose is served by requiring the development of stacked homes rather than additional
attached side-by-side town homes in the Plat of Ludlow Bay Village.
Comment No. 15 (County should have required setback for prior construction): MLA02-
00496 and BLD02-00546 both required a 20-foot setback from Heron Road.
. Letter from Les Powers to Al Scalf, August 13,2004
. Memo from Bert Loomis to Al Scalf, July 28, 2004
. Permit issued by County, Oct. 25,2002 (MLA02-00496)
· Letter from Sue & Gary Kaysinger to Al Scalf, October 30, 2005
PLA Response: The setback was not required by applicable codes for the reasons set forth
above, nor by the hearing examiner land use decisions under which these 2002 building permits
were issued. The setback was noted in error on certain permits by a former Jefferson County
planner, and the error was disregarded by the County in subsequent building inspections, as was
proper.
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Comment No. 16 (artificial pond): The artificial pond within the Plat ofLUdlowllayVillag~is ...LOPMENT I
within the jurisdiction of the Shoreline Management Act and therefore is subj ect to the - _._'''-~-- -
residential over-water prohibition contained in the Jefferson County Shoreline Management
Master Program.
· Letter from Carol Saber to Attorney General's office, June 14,2004
· E-mail from Les Powers to Linda Hoffman, September 22, 2004
· Letter from Les Powers to Perry Lund (DOE), October 4, 2004
· E-mail from Les Powers to Greg McCarry, June 30, 2004
· E-mail from Jeff Stewart to Carol Saber, June 25,2004
· E-mail from Josh Peters to Al Scalf, April 26, 2004
· Powerpoint presentation to DOE, October 1, 2004
· Letter from Paula Ehlers, DOE, to Al Scalf, October 25, 2004
PLA Response: The artificial pond within Ludlow Bay Village clearly is not within the
jurisdiction ofthe Shoreline Management Act. PLA disagrees with the informal opinion ofthe
Washington State DOE dated October 25,2004, that the artificial pond within the Plat of Ludlow
Bay Village is subject to the residential over-water construction prohibition found in Section
5.160 of the Jefferson County Shoreline Master Program. That regulation prohibits residential
structures "located on or over marshes, bogs, swamps, lagoons, tidelands, ecologically sensitive
areas or water areas subject to this Master Program" (emphasis supplied). The artificial pond is
none of these.
The regulation was not intended to apply to water areas that are not subject to the master
program, such as storm ponds, swimming pools, and other artificial bodies of water that are
neither shorelines, shorelines of statewide significance, nor wetlands, regardless whether they are
located within shoreline jurisdiction. It therefore does not apply to the artificial pond in Ludlow
Bay Village.
Background
The story of the pond began more than a hundred years ago and is detailed in the "Report: Plat of
Ludlow Bay Village Mill Pond Assessment, Port Ludlow, Washington," dated September 20,
2004, prepared by GeoEngineers of Port Orchard, Washington, a copy of which is in the Project
file. The background summary in this letter is based on that report and on information provided
by Greg McCarry and Larry Smith ofPLA and by Lyn Keenan of Reid Middleton, author ofthe
environmental impact statement for the resort expansion project.
The pond was artificially created sometime prior to 1899 in the development of the Port Ludlow
Mill by Puget Mill Company and Pope & Talbot. The pond has been used since its creation for
log storage, log washing, log handling, storm water detention, effluent discharge, swimming, and
as a landscape feature. On multiple occasions, it has been diked, covered entirely by buildings,
rail lines, wharfing, and piers, filled with hundreds of piles and other materials, dredged, reduced
in area, expanded in area, and relocated. Electric pumps have been used continuously since 1967
SEA 1726628v1 65364-2
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to maintain the water level, water temperature, and water quality ofthe pond. The pond does not
provide habitat for wildlife or plants of any significance.
,.:"'..-",v.+~="",""""'.~.",,,,-
In 1967 the pond was partly filled and redeveloped as a swimming hole with an artificial
pumping system. In 1994 the pond was deepened and expanded from 1.4 acres to 2.2 acres
following Jefferson County's approval of the Plat of Ludlow Bay Village. The owner at that
time excavated upland areas east and north ofthe 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 ofthe pond, one on the west side) through
which water enters the pond. The pond creation and expansion were not done as mitigation for
the loss of any wetlands - the pond is not a mitigation wetlands, nor is it any other type of
wetland.
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, the invert of which is 10.0 feet above mean lower low tide, and an emergency discharge
pipe, the invert 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.)
Discussion
For the following reasons, Section 5.160 ofthe Jefferson County Shoreline Master Program does
not prohibit residential construction over the pond:
The Pond Was Artificially Created
The pond was artificially created. It was created over one hundred years ago, and since its
creation it has been covered, filled, dredged, relocated, and used for different artificial purposes.
The text, figures, and photographs found in the GeoEngineers' report show that the pond was
created artificially by the construction of a dike, then was converted artificially to a mill pond,
storm pond, and swimming hole, and the areas comprising the existing pond were at one time or
another artificially filled with hundreds of piles, converted to dry land, and covered at one time
by buildings, wharves, and rail lines. The pond, if it ever was a wetland site, became a non-
wetland site by being artificially enclosed, by its conversion to artificial uses, and by the filling
and covering of its entire current footprint.
A portion of the pond might have been a wetland at one time, but it no longer exhibits the
characteristics of a wetland, and therefore is "non-wetland." See RCW 90.58.030(2)(h); WAC
173-22-080(11 )(b )-( c); Golden Gate Audubon Society v. U.S. Army Corps of Engineers, 717
F.Supp. 1417, 1419-22 (N.D.Ca1.1988) (interpreting phrase as used in Clean Water Act); City of
Romulus v. Michigan Dep't of Env 'tl Quality, 678 N.W.2d 444,453-456 & n. 11 (Mich. 2004)
(stating that under Michigan law, a wetland that has been filled or eliminated is no longer
considered a wetland); Smalls v. Blueprint Development, 497 S.E.2d 54,56 (Ga. Ct. App. 1998)
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(stating rule in recitation of facts); see also Barrett Lake Foundation v. Ferndale, 109 Wn. App.
1020 (Div. 12001) (unpublished) (record lacked sufficient evidence to show that wetlands
existed in normal circumstances and not just as a result of incessant farming activity); Citizens
for a Natural Habitat v. Lynnwood, 107 Wn.App. 1054 (2001) (unpublished) (streams are not
part of the same stream system where they would not connect but for an artificially created
pond). The pond was legally filled, and it ceased over a hundred years ago to exhibit the
characteristics of a wetland. The DOE agrees that the pond is not a wetland.
In Barrett, the City of Ferndale asserted SMA jurisdiction over a proposed 24-acre development.
The Court of Appeals held that the record lacked sufficient evidence to support a finding that
wetlands existed on the subject property "under normal circumstances," and hence the City
lacked jurisdiction ,to regulate the project under the SMA. The City and the Shoreline Hearings
Board had adopted a wetland consultant's theory that the property historically contained
wetlands associated with the Nooksak River but had ignored the same expert's conclusion that
forty years of intensive farming practices had "forever altered its natural characteristics." The
Court held that the Board's omission of such un-rebutted conclusion indicated error in light of
the express SMA language that requires alterations of the natural condition of shorelines and
shorelands to be recognized, "whether the change in circumstances occurs through man-made
causes or natural causes."
Similarly, years of artificially impounding water within the pond, covering, filling, dredging, and
relocating the pond, and using the pond for different artificial purposes has forever "altered its
natural characteristics" and taken it from the jurisdiction of the SMA as a body of water.
The Pond Is Artificially Maintained
The pond could not exist in its current form without the constant delivery of water from electric
pumps. Those 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.
If the pumps were turned off, then there would be four consequences. First, the water level
would drop by evaporation to an u11known elevation where it would be influenced by storm
water runoff from local roads and buildings and when winter extreme high tide 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 artificial pond. If a body of water exists only because it is
filled by the constant operation of electric pumps, then it is a body of water that the SMA was
not intended to protect.
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Shoreline Management Act Protects Natural Shorelines, Not Artificial Bodies of Water
The Jefferson County Shoreline Management Master Program was adopted under the Shoreline
Management Act of 1971, RCW Chapter 90.58 ("SMA"). The SMA was intended to protect
natural shoreline environments, not environments within shorelands that are both artificially
created and artificially maintained. The pond, like storm ponds and swimming pools, was both
artificially created and is artificially maintained by the use of electric pumps. Without the hand
of man, the pond would not exist.
The SMA provides that the Department is given authority to "Preserve the natural character of
the shoreline." RCW 90.58.020 (emphasis supplied). The public's "opportunity to enjoy the
physical and aesthetic qualities of natural shorelines of the state shall be preserved." Id.
Of critical importance to the discussion of the pond,
Alterations of the natural condition of the shorelines and
shorelands ofthe state shall be recognized by the department.
Shorelines and shorelands ofthe state shall be appropriately
classified and these classifications shall be revised when
circumstances warrant regardless of whether the change in
circumstances occurs through man-made causes or natural causes.
Any areas resulting from alterations of the natural condition of the
shorelines and shorelands ofthe state no longer meeting the
definition of "shorelines of the state" shall not be subject to the
provisions of chapter 90.58 RCW.
Id. (emphasis supplied). The pond is not a natural body of water. It is artificial, like a storm
pond or swimming pool. It was created long prior to the adoption ofthe SMA, and it was
modified after adoption of the SMA under an approved shoreline permit. The Department is
obligated under the SMA to acknowledge that even if the pond at one time was part ofthe
natural shoreline environment, through man-made causes after 1855 and prior to 1971 it became
an "area resulting from alterations ofthe natural condition" and "shall not be subject to the
[SMA]." See id.
The Shoreline Hearings Board has ruled that artificial ponds do not deserve protection under the
SMA. Yakima Indian Nation v. Central Pre-Mix Concrete Co., SHB No. 98-42 (Wash.
Shoreline Hrgs. Bd. 1999) (holding that "manmade ponds are not regulated wetlands" where
pond is created from gravel mining within the flood plains of the Yakima River); see also
Groenig v. City of Yakima, SHB Nos. 92-30-31 (Wash. Shoreline Hrgs. Bd. 1993) ("This Board
has already decided that non-natural shorelines present a different context for decision than does
a pristine, natural shoreline").
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The Pond Is Not a Shoreline, Shoreline of Statewide Significance, or Wetlands
The pond is located within 200 feet ofthe ordinary high water mark ofPuget Sound, a shoreline
of statewide significance, and therefore is located within the "shorelands." But there is a
difference between "shorelands" and "water area subject to this Master Program." The pond is
not a "shoreline" because it is less than 20 acres in area. The pond is not a "shoreline of
statewide significance" because it does not meet the statutory definition. See RCW 90.58.030.
The pond has no identified ordinary high water mark.
The pond has not been shown to have wetland vegetation or soils. 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 from a non-wetland site 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. The pond is not an
"ecologically sensitive area."
The pond is not a shoreline, shoreline of statewide significance, wetlands, tidelands, or
ecologically sensitive area for the reasons given above. It therefore is not a "marsh, bog, swamp,
lagoon, tidelands, ecologically sensitive area, or water area subject to the Master Program." See
Master Program Section 5.160.
The pond is not subject to the master program and is not subject to the jurisdiction ofthe SMA
as a body of water. There must be a logical standard for determining 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 wetland. An artificial pond ofthis
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 defined in the SMA. Jefferson County has the authority to
make an administrative interpretation to this effect in its analysis of any application involving
residential construction over the artificial pond. The prohibition against over-water construction
cannot reasonably be interpreted to apply to artificial bodies of water because the SMA was
intended only to protect natural bodies of water.
The Protection of the Pond Is Inconsistent with Past Decisions of the County and DOE
The County and DOE in the past have approved residential construction over the pond and have
declined to appeal permits authorizing such construction. For example, in 1993 Jefferson
County approved a shoreline permit (SDP91-017) for the construction of improvements within
the Plat of Ludlow Bay Village. The developer proposed to construct residential structures over
the pond, which in the permit decision was described as an "existing man-made pond." Certain
lot depths and roadway locations were determined based on the assumption that the residential
structures to be built on those lots could extend partly over the pond.
In response, the Department issued a letter dated June 14, 1993, in which thJDep(lrtment~~ot<;:,WI , ;\
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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.
(Emphasis supplied). At the time the 1993 shoreline permit was reviewed and approved, the
Jefferson County Shoreline Master Program had the same residential over-water construction
prohibition as now. The Department not only did not object to residential over-water
construction, it approved the shoreline permit and stated that the proposal "meets the intent of the
master program." It cannot meet the intent of the master program then but fail to do so now.
It would be inconsistent with that 1993 decision to apply the residential over-water construction
prohibition to the pond today. The developer relied on the Department's approval by recording a
final plat in which lot lines and roadway boundaries were established, and it cannot now develop
portions of the areas located between platted roadways and the artificial pond without either
filling portions of the pond, which it does not currently propose to do, or constructing over
relatively small areas of water as the Department approved in 1993.
Pond Does Not Have Valuable Biological Features
Not every water body is of sufficient quality to benefit from the prohibition of residential over-
water construction. Partly because of its temperature and quality, the pond does not provide
valuable habitat to animals or plants. According to the GeoEngineers report,
Water quality issues have historically been a problem with the
pond. Multiple investigations prior to and after the [1994]
expansion document elevated temperature, low dissolved oxygen
and nutrients, and the formation of algal blooms as primary issues.
Biofouling in the form of mussel and barnacle growth within the
circulation system was also identified as a problem with the pond. .
.. Historically, there have been attempts to minimize algal growth
in the pond through use of engineering upgrades in the pumping
system, through chemical treatment of the pond water including
colorants and herbicides (prior to 1993), as well as through
mechanical means including the use of hand held skimmers
(currently being used).
Report at 5. The report notes that the pond provides poor habitat for wildlife and plants:
The edge ofthe pond where the water meets the upland is devoid
of any nearshore vegetation and is comprised of rock/gravel,
dirt/bark, and mowed lawn. . . .. Currently the pond has no
naturally occurring nearshore vegetation including submerged~.
emergent vegetation and is absent of any upland fringe vegetalion..
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Report at 6. Over-water construction typically is prohibited in order to pro;tefteelgrass 'and
juvenile salmonids. PLA is not aware that either exist within the pond. Theenvirol1.IDeIltaL
protection purposes ofthe over-water construction prohibition therefore are not served by
applying the rule to the pond.
...LOPMENT I
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The DOE's Recent Analysis Does Not Adequately Support the Protection of the Pond
Jeffry Stewart ofthe DOE made the interpretation that the artificial pond is subject to the
residential over-water construction prohibition and explained 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.
PLA acknowledges 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 it apparently is not. In addition, 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. The historical information found by GeoEngineers shows that
the pond was artificially created and has been diked; covered by buildings, rail lines, wharfing,
and piers; filled with piles and other materials; dredged; reduced and expanded in area; and
relocated, all for more than one hundred years. That history shows that the pond is artificial.
And the legislature did not intend that its policies should make irrelevant its adopted definitions
of "shorelines," ''wetlands,'' and other relevant terms. Those terms clearly exclude the pond
because of its size and its artificial creation and operation.
Comment No. 17 (ownership of artificial pond): The State of Washington or the United States
of America might own a portion of the artificial pond, because a portion ofthe artificial pond is
located below mean low tide.
· E-mail from Les Powers to Linda Hoffman, September 17, 2004
PLA Response: There is no rational basis on which to believe that the artificial pond is owned
by the State of Washington or United States of America. The pond is located mostly within
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Tract B ofthe Plat of Ludlow Bay Village, which is owned of record by Lu410w Bay Village
Association, although portions ofthe pond are located within portions oflots and parcels that are
owned of record by PLA. The State of Washington and United States of Amerjca hayenot ','. .,," bLop'~!:~1
asserted ownership of Tract B, nor of the lots and parcels owned by PLA within which portions'-
of the pond are located.
Comment No. 18 (maintenance of artificial pond): Homeowners may be willing to pay extra
for maintenance ofthe artificial pond in exchange for having less dense development.
. E-mail from Jeff Stewart to Perry Lund, July 7,2004
PLA Response: Comment noted.
Comment No. 19 (Admiralty III density, traffic, and storm water impacts): The proposed
development of Admiralty III will have adverse density, traffic, and storm water runoff impacts.
. Letter from Glee Hubbard to DCD, October 26, 2005
. E-mail from Marian Peterson to Al Scalf, November 2, 2005
. Letter from Ludlow Maintenance Commission to DCD, November 2, 2005
. E-mail from Clark Ruggles to Al Scalf, November 3, 2005
. Letter from PL V Council to Al Scalf, November 3, 2005
PLA Response: Chapters 3 and 4 of the Port Ludlow Resort Plan Revision Final SEIS (2005)
evaluate the environmental impacts of the Project and are incorporated herein by this reference.
Comment No. 20 (habitat and endangered species impacts): The Project will disrupt the
habitat of wildlife in the area and may affect endangered species.
. E-mail from Les Powers to Michelle Farfan, May 19,2004 (mentioning bald eagles)
. Email from Bruce Schmitz to Perry Lund, Oct. 3, 2004
PLA Response: Chapters 3 and 4 of the Port Ludlow Resort Plan Revision Final SEIS (2005)
evaluate the environmental impacts ofthe Project and are incorporated herein by this reference.
Comment No. 21 (cloud on title): Due to lack of compliance with respect to permits, PLA has
caused homeowners' title to their property to "cloud" and thus may be liable for damages to
compensate owners for the reduced value of their property.
. Letter from Les Powers to Al Scalf, August 13, 2004
. E-mail from Les Powers to John Fischbach, July 10, 2004
. E-mail from Les Powers to Al Scalf, June 29, 2004
PLA Response: PLA has complied with all permit requirements except as noted otherwise
above regarding Comment No.1, and there is a distinction between permit issues and title issues.
A cloud on title is "[a]n outstanding claim or encumbrance which, if valid, would affect or
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impair the title of the owner of a particular estate." Black's Law Dictionary at 232 (5tJiJed. 1979).
An adverse possession claim is a cloud on title, as is a lien claim, as is a potential prescriptive
easement. An alleged failure to comply with permit conditions, does not affector impairt!I~_rr"
titles of property owners.
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Comment No. 22 (marina expansion): Homeowners and at least one Department ofFish and
Wildlife biologist oppose the westward expansion of the marina.
. Letter from William Funke to Al Scalf, May 4, 2004
PLA Response: The comment is outdated. PLA revised its plans in response to public
comments to reduce the westward expansion of the marina. See "Response to Comments
Alternative" described in the Port Ludlow Marina Expansion Final SEIS (2002). PLA believes
the DFW now is satisfied with the marina design.
Comment No. 23 (marina Alternative 3 map): The draft SEIS to the Marina Expansion
application improperly suggests that the Alternative 3 map was already considered by the County
in a 1993 FEIS.
· E-mail from William Funke to DCD, July 25, 200_
· Letter from William & Katherine Funke to DCD, November 3,2005
. E-mail from R. Grant Colby to Al Scalf, November 4, 2005
PLA Response: The Port Ludlow Marina Expansion Final SEIS (2002) does not state that the
Alternative 3 drawing or map was part of the 1993 EIS. Instead, it states that this alternative was
"conceptually proposed" in the 1993 EIS. See Port Ludlow Marina Expansion Final SEIS (2002)
at page 1-8.
Comment No. 24 (DFW requirements): The proposed expansion ignores the Department of
Fish and Wildlife's recommendations and mitigation requirements.
· Letter from William & Katherine Funke to DCD, November 3,2005
· Letter from William Weir to Al Scalf, November 4, 2005
PLA Response: The DFW has not yet made any decision regarding the marina expansion. The
DFW has made recommendations, which have been accepted and implemented by PLA. PLA
believes the DFW now is satisfied with the marina design.
Comment No. 25 (piecemealing of environmental review): Environmental review ofthe
Project has been improperly piecemealed in violation ofMPR Code Section 3.902.
· E-mail from William Funke to DCD, July 25, 2002
PLA Response: MPR Code Section 3.902 is consistent with the longstanding requirement under
SEP A and the SEP A Rules that environmental review not be piecemealed or broken into smaller
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segments. This requirement ensures complete environmental review of the impacts of all parts
of a proposal before any action is taken. This requirement is intended to prevent the avoidance
of environmental review by qualifying segments of a project for categorical exemptions or
determinations of non signficance when the project as a whole would be nonexempt from
environmental review and might require an environmental impact statement.
In this case, although two environmental impact statements were prepared -- one for the aquatic
improvements, the other for the upland improvements -- there was no avoidance of
environmental review and no piecemealing. Environmental review of Project simply was
divided between the Port Ludlow Marina Expansion Final SEIS (2002) and the Port Ludlow
Resort Plan Revision Final SEIS (2005) because in 2002 PLA did not yet have a plan for the
upland resort development. The marina SEIS later was incorporated into the resort SEIS, after
PLA had developed a new Resort Plan.
PLA made no effort to qualify any portion of the Project for a categorical exemption from
environmental review, nor to avoid the preparation of an environmental impact statement for the
Project. Complete environmental review ofthe entire Project has been completed. When there
is complete environmental review ofthe impacts of all parts of a proposal before any action is
taken, there is no piecemealing.
Comment No. 26 (adequacy of drawings): PLA's drawings do not comply with MPR Code
Section 3.902.
· E-mail from William Funke to DCD, July 25, 2002
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PLA Response: MPR Code Section 3.902.3 provides as follows:
Actual building permit plans or construction drawings are not
required during the SEIS process. Architectural drawings
including a detailed site plan, and architectural sketches or
drawings showing approximate elevations, sections, and floor
plans are required, however, to ensure that the SEIS considers
project-level details.
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The Port Ludlow Resort Plan Revision Final SEIS (2005) includes a detailed site plan (Figure
3B), elevations (Figure 14B), sections (Figure 9A), and floor plans (Figure 14A). The drawings
therefore comply with MPR Code Section 3.902.
Comment No. 27 (no Corps approval): The proposed marina expansion is based on a plan that
has not been approved by the U.S. Army Corp of Engineers.
· Letter from William Weir to Al Scalf, November 4, 2005
PLA Response: This comment is made in error. The Corps has approved the application of
PLA for approval of a 100-s1ip expansion to the marina.
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Comment No. 28 (marina fire danger): The proposed marina expansion creates an undue risk
of fire danger. ~LOPMun
· Letter from Ed Wilkerson (Interim Fire Chief) to Al Scalf, November 4,2005
PLA Response: Mr. Wilkerson's comments appear to have been made in error and contradict
the prior comments of the Fire ChiefKeir. Mr. Wilkerson cites NFPA 307. NFPA 307 governs
Terminals and Wharves, not Marinas and Boat yards. The proper standard for Marinas and
Boat yards is NFP A 303.
PLA's project engineer from Reid Middleton, Shannon Kinsella, met extensively with Fire Chief
Keir while preparing the marina designs. Fire ChiefKeir approved the designs shown in the
shoreline permit application. That is why the Fire District did not comment on the marina draft
SEIS in 2002.
PLA is unaware of provisions in NFP A 303 regarding road access and road width standards or
applicability to pre-existing marina improvements. The County approved a road 22 feet in width
(with I-foot shoulders on each side) within a right-of-way of24 feet in width in the Plat of
Ludlow Bay Village, a decision that was not appealed in 1994 and is unappealable now. PLA is
unable to increase roadway widths within the Plat of Ludlow Bay Village without taking lands
from common area tracts that are owned by Ludlow Bay Village Association.
PLA otherwise will comply with County requirements regarding road access and road width
standards and the retrofitting of pre-existing marina improvements. PLA also will comply with
applicable fire code requirements.
Comment No. 29 (additional environmental impacts): The Project will have parking, traffic,
and density impacts.
. Letter from Carol Saber (PL VC) to DCD, May 29, 2004
· Letter from Sue & Gary Kaysinger to Al Scalf, October 30, 2005
· Letter from Carol Grieves to Al Scalf, November 2, 2005
· Letter from Allen & Catherine Standish to Al Scalf, November 3, 2005
· Letter from PL V Council to Al Scalf, November 3,2005
PLA Response: Chapters 3 and 4 of the Port Ludlow Resort Plan Revision Final SEIS (2005)
evaluate the environmental impacts of the Project and are incorporated herein by this reference.
Comment No. 30 (town home lots are unbuildable): By paying low property taxes, PLA has
tacitly acknowledged that the vacant town home lots are unbuildable. Ifthe County tax assessor
changes its position, PLA should be responsible for bringing the taxes current.
· Letter from Sue & Gary Kaysinger, October 30,2005
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PLA Response: The fact that vacant town home lots have lower assessed values than improved
town home lots in the Plat of Ludlow Bay Village is not surprising or objectionable, since an
unimproved lot logically has a lower value than an otherwise similar improved lot. The fact that
the difference in assessed value is significant also is not surprising or objectionable, since
assessed land values typically are about one fourth of assessed building values (in other words,
land value typically represents roughly 20 percent of the total assessed value of an improved lot)
but may be significantly less or more, depending on the circumstances. The fact that PLA pays
taxes on its unimproved lots also is not surprising or objectionable, since it is required by law to
do so, and to do otherwise would result in interest, penalties, and foreclosure. But to argue that
the payment of taxes is an admission that a lot is unbuildable, however, is unreasonable.
Whether a vacant town home lot is buildable is determined by applicable development standards,
not by the payment of taxes. Under the MPR Code, the vacant town home lots are buildable.
Comment No. 31 (native gravesites): There are native gravesites in the proposed development
area.
. Letter from Floyd Thoren to John Fischbach, November 5,2005
PLA Response: This comment relates to the Ludlow Cove II project, not the pending Project
applications. There is no evidence of native gravesites within the Plat of Ludlow Bay Village or
the Admiralty III area. If evidence of native gravesites were found during construction, then
PLA should be required to follow the standard protocol for protecting the gravesite:
1. STOP WORK. Do not further disturb the area or remove any materials therefrom;
2. Notify immediately the Jefferson County Director of Development Review (360-
379-1450);
3. Protect the area from vandals and collectors;
4. Obtain the services of a qualified archaeologist to evaluate the site and make
recommendations for further work in the area; and
5. If further excavation or disturbance of the site is necessary, obtain the appropriate
permit from the state Office of Archaeology and Historic Preservation (360-753-5010). Proceed
only in compliance with the terms and conditions ofthe permit.
Comment No. 32 (bonding): The County should require bonding so that PLA's future
performance is guaranteed.
. Letter from Ludlow Maintenance Commission to DCD, November 2,2005
. Letter from Ron & Diane Campo to DCD, November 2,2005
. Letter from William & Theodora Clark to Al Scalf, November p, 2IT05
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PLA Response: PLA is willing to provide whatever bonds are required by any applicable law,
ordinance, or regulation.
Comment No. 33 (stop-work order): PLA violated a stop-work order.
· E-mail from Larry Lawson to Greg Ballard, April 20, 2004
PLA Response: PLA has never been subject to a stop-work order. The comment is erroneous.
Comment No. 34 (nonconforming boat sign): A boat sign in Port Ludlow violates the County
sign ordinance, and the property on which the sign is located is being used for commercial
purposes, in violation ofMPR Code.
· E-mails from Bert Loomis to Michelle Farfan, et aI, August 27,2004
PLA Response: This claim is unrelated to any action or property ofPLA. The comment is
unrelated to the pending applications.
Comment No. 35 (debris cages and discharge catch basin): There are unsafe conditions
regarding the debris cages and discharge catch basin. Standing water creates serious safety issue.
· E-mail from Barry Baker to Richard Regan, July 23,2004
PLA Response: This comment relates to the Ludlow Cove II project, not the pending Project
applications.
Comment No. 36 (helipad location): The helicopter land pad should not be located as
proposed.
· Letter from John & Elizabeth Van Zonneveld to Al Scalf, October 31,2005
· E-mail from Hank West to Al Scalf, November 2, 2005
PLA Response: Fire ChiefKeir approved the proposed location in a meeting among ChiefKeir,
Mark Dorsey ofPLA, and Lyn Keenan of Reid Middleton. Chapters 3 and 4 ofthe Port Ludlow
Resort Plan Revision Final SEIS (2005) evaluate the environmental impacts of the Project,
including impacts of the relocated helicopter landing pad, and are incorporated herein by this
reference.
Comment No. 37 (club membership): PLA's plan to require new homeowners to join new
recreation center will promote divisiveness in the community.
· E-mail from Hank West to Al Scalf, November 2,2005 r---
· Letter from Terence O'Brien to Al Scalf, November 2, 2005
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PLA Response: PLA believes that a new recreation center is needed within the PLA Resort
Property to serve the new residents and the guests of the Inn and marina. Currently, guests of the
Inn and marina have no access to recreational facilities.
Comment No. 38 (past illegal subdivision ofTH Lot 16 from TH Lot 16A): PLA illegally
subdivided TH Lot 16 from TH Lot 16A by conveying TH Lot 16 to a third-party purchaser
while retaining ownership ofTH Lot 16A.
· Memorandum written by Gregg & Patricia Jordshaugen, October 31,2005
PLA Response: TH Lot 16 was subdivided from TH Lot 16A in the 1994 Plat of Ludlow Bay
Village. They are separate lots, not physically or conceptually joined together on the face ofthe
plat or in any restrictive covenant relating to the plat.
The Jordshaugens are engaged in litigation against the County, PLA, and others regarding the
boundary oftheir town home lot (TH Lot 17), and in that litigation the Jordshaugens have made
the factual allegation that TH Lot 16 cannot be owned by someone who does not also own TH
Lot 16A. This allegation is irrelevant to the questions whether or not and on what conditions the
Project should be approved.
In the pending boundary line adjustment application, PLA proposes to eliminate TH Lot 16A,
making it part of new Parcel 10.
Comment No. 39 (public welfare doctrine): Jefferson County has the authority, under the
doctrine of public welfare, to rescind permit approvals retroactively.
· E-mail from James Forbes to Bert Loomis, July 14, 2004
PLA Response: This comment, even if applicable to the building permits relating to constructed
buildings within the Plat of Ludlow Bay Village, is irrelevant to the questions whether or not and
under what conditions the Project should be approved.
Comment No. 40 (Building 600 violates development agreement): Construction of Building
600 violates the 2000 Development Agreement between Jefferson County and PLA.
· E-mail from Les Powers to Al Scalf, June 22, 2004.
· E-mail from Bert Loomis to Al Scalf, June 17, 2004, citing RCW 36.70B.180
PLA Response: The Development Agreement contains no prohibition against or regulation of
the construction of Building 600.
Comment No. 41 (LMC architectural control): The Project requires the approval of the ___
Ludlow ~aintenance Commission based on architectural control requiremepts of the Master WI
DeclaratIon. I ' ,.
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. Memorandum written by Gregg & Patricia Jordshaugen, October 31, 2005
PLA Response: Section 4.24 ofthe Master Declaration exempts PLA (as suc~Declarant to rv7
Pope Resources) from LMC's architectural control: I
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Nothing contained 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.
DEe A
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Under this exemption, PLA may construct improvements within the Plat of Ludlow Bay Village
without LMC approval.
Comment No. 42 (elevator maintenance): It is unclear who will maintain the new elevator.
· Memorandum written by Gregg & Patricia Jordshaugen, October 31,2005
PLA Response: PLA, or its successors and assigns as owners of the commercial properties
within the PLA Resort Property, will maintain the new elevator.
Comment No. 43 (use of artificial pond for storm water drainage): The artificial pond
should not be used for storm water drainage.
· Memorandum written by Gregg & Patricia J ordshaugen, October 31, 2005
PLA Response: The artificial pond is located mostly within common area Tract B, which is
owned by the Ludlow Bay Village Association. One ofthe purposes ofthe artificial pond is to
serve as a storm water detention facility. The cost of maintenance of the artificial pond is borne
by all of the property owners within Ludlow Bay Village, including PLA. If the artificial pond is
used also to benefit other land outside Ludlow Bay Village (such as the Admiralty III area), then
an easement and maintenance agreement should be required to ensure that the owners of the
other land bear a fair share of the maintenance expense.
Comment No. 44 (plat or covenants contain use restrictions): The Plat of Ludlow Bay
Village or the Master Declaration impose covenants on the SF and TH Lots within the plat,
requiring the SF Lots to be used for single-family residences and the TH Lots to be used for town
home residences.
· Memo from Les Powers, November 4,2005.
PLA Response: Neither the Plat of Ludlow Bay Village nor the Master Declaration imposes any
requirement that SF Lots be used for single-family residences or that TH Lots be used for town
home residences. See PLA's response to Comment No.6, above.
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Comment No. 45 (BLA is a plat alteration, not a simple BLA): The proposed boundary line
adjustment is really a plat alteration.
. Memo from Les Powers, November 4,2005.
PLA Response: The proposed boundary line adjustment is an exempt plat alteration under
RCW 58.17.215 (plat alteration provision) and RCW 58.17.040(6) (boundary line adjustment
exemption). See PLA's response to Comment No.5, above.
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