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Home My WebLink AboutLog389 Page 1 of 1 AI Scalf ?~1 From: Powers & Therrien [powers_therrien@yvn.com] Sent: Monday, January 16,20063:27 PM To: AI Scalf; Michelle Farfan Cc: Powers & Therrien Subject: Les Powers Comments to Staff Report Issued 01110/06 Dear Mr. Scalf: Attached for filing and consideration at the hearing on January 17th & 18th please find attached Les Powers' Comments to the Staff Report issued January 10,2006. Thank you. Diane Sires Legal Assistant POWERS & THERRIEN, P.S. 3502 Tieton Drive Yakima, W A 98902 Phone (509)453-8906 Fax (509) 453-0745 This email is covered by the Electronic Communications Privacy Act, 18 D.S.C. Section 2510-2521 and is legally privileged. This message and any attachments hereto may contain confidential information intended only for the use of the individual or entity named above. 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LOG ITEM # 1;81 Page_--L- of-12:. 1/17/2006 January 16,2006 Via Email AL SCALF, DIRECTOR Jefferson County Department of Community Development 621 Sheridan Street Port Townsend, W A 98368 LOG ITEM # - ~ g,~ Page.-b... of .L~ _.~ RE: Major Revision of Ludlow Bay Resort Plan Dear Mr. Scalf: The author hereof strongly objects to DCD Staff s Report and to the approval of the permit and related applications and proposed Major Revision of the Resort Plan for the reasons set forth below as well a~ for the reasons set forth in previous statements of the author in response the such applications and to the DSEIS related thereto. The undersigned requests notice of the filing of any SDP with the DOE and further requests that this statement be considered as published orally at the hearing on January 17th and 18th as if delivered by the author thereat. A. The Modification of the Plat. I am not certain where DCD Staff draws a conclusion that the CC & Rs and plat do not prohibit the major revision. However, my response follows. The plat for Ludlow Bay Village contains under "A. Declaration of Covenants" the following: The Ludlow Bay Village Final Plat is subject to the Master Declaration of Covenants, Conditions, Restrictions, Assessments, Charges, Liens, Reservations and Easements for Ludlow Bay Village Final Plat...'" The Plat further recites the grant of common areas as follows: "C. Common Areas: Pope Resources hereby grants, conveys, and quitclaims to the Ludlow Bay Village Association, A Washington Nonprofit Corporation Tracts A, B, C, D, and E (Common Areas as shown on the Final Plat subject to all easements or restrictions either.. .(3) created or reserved in the Master Declaration for Ludlow Bay Village." The plat identifies townhouse lots upon which 53 townhouses are permitted to be built. Because the CC & Rs are incorporated directly into the plat, they are a part of the plat itself. To modify the plat, it is necessary to modify the CC & Rs. The CC & Rs do not permit condominium owners. They define lot as "an area of real property designated as a residential town home or single family residential lot" . They" define "dwelling unit" as "any building or portion of a building, including a town home or single-family residence, situated upon a lot designed and intended for use and occupancy as a residence." A "Member" is defined as "any person holding a Membership.. . Members of the Master Association shall, without exception, mean and refer to the Owner(s) of any Lot.. . Members of the Town Home Association shall, without exception, mean and refer to the Owner(s) of any Town home Lot." Membership shall be appurtenant to, and may not be separated from, ownership of land. . ." "Owner" is defined as "the record owner of a fee simple interest in any -- '" " (i \j '.i_tS- ------ Lot or other property within Ludlow Bay Village... "Declarant" is defined as "Pope Resources, A Delaware Limited Partnership, organized under the laws of the State of Delaware." "Developer" is defined as "Pope Resources, A Delaware Limited Partnership." "Common Areas" are defined as "Tracts A, B, C, D and E as shown on the face of the map of Ludlow Bay Village." See CC & RsSec.I.11, 1.12, 1.13, 1.17, 1.22, and 1.25. TheCC &Rs "declares that all of the real property within Ludlow Bay Village is and shall be held, conveyed, encumbered, occupied, built upon or otherwise used, improved or transferred, in whole or in part subject to this Master Declaration. .." See CC & Rs. Sec. 2.1. As to common areas, subject to public rights of ingress and egress, the CC & Rs state "every owner, resident, occupant and member of the Master Association shall have a nonexclusive right and easement of enjoyment in and to the Common areas.." See CC & Rs. Sec. 3.1 Except as to the Declarant for the initial five years after recording the plat, governance of the Master Association and Townhouse Association is vested in "Owners". Here, "Owners" refer to the "Inn", the "Marina", the "Restaurant", and the "Single Family Lots". See CC & Rs, Sec. 5.1.2. Similarly, after such period, the Owners of Lots in the Townhouse Association assume control thereof. Assessments are made against all but exempt properties. The Declarant is exempted from assessments for the Townhouse Association. The first transferee from Declarant is liable for the assessments as well as subsequent Owners. See CC & Rs, Sec. 7.2. Assessments are otherwise a function of a Lot. The CC & Rs. Provide "the town home Lots shall be required to pay an Annual Assessment.. . set at a uniform rate for each town home Lot." See CC & Rs, Sec. 7.4.2. The Staff Report misconstrues the application of the CC & Rs. The proposed lot line adjustment results in a violation of the CC & Rs and through them, the Plat. This follows because membership in the Townhouse Association is limited to 53, the number of Lots. Each Lot is limited by reference to real estate and the location of a single family residence thereon. Participation in governance and liability for association dues follow Lots and Owners thereof. To the extent of the specific share of Master Association assessments allocable to the residences, that share is assessed by Lot including both the single family detached residential Lots and the townhouse Lots. Right to use the common areas when reference is made to residents, is defined by reference to Members who must be Owners of Lots. PLA proposes to build stacked condominiums. The owner of a condominium does not have an exclusive divided interest in a specific parcel of real property. Such owner has a right in common with other owners in the real property upon which the condominium unit is located. A condominium owner purchases a unit. A unit is the physical portion of the condominium designated for separate ownership. Except as otherwise provided, it is limited to the "walls, floors, or ceilings and that which is contained within them. See RCW 64.32.020(31) and RCW 64.32.212(1). The lot itself is outside the "unit". Hence it is not owned exclusively by the owner of the unit. The owner of the condominium unit cannot qualify as an Owner of Lot for any of the purposes of the CC & Rs listed above. Those purposes include governance, assessment, and use of the common areas ofthe Plat except as a member of the public. 2 LOG ITEM =k~ 1?8~ Page, a eyZ The problem is not cured by withdrawing the condominium development from the Townhouse Association and by establishing a new association. Here, the rights in the common areas as owners, governance in the Master Association, and assessments are a function of being an Owner, residential or commercial. Condominium members cannot be "Owners". Further, participation in the common areas and the Master Association is limited to the specific Owners, commercial and residential identified in the CC & Rs. There is no basis for creating a new association. Such an act would change governance rights and assessments. Both such rights are defined by reference to commercial property or Lots. Condominium owners would own neither. It would also change the rights of the existing Owners in the common areas. Their rights would be diminished by the addition of a new association. Based on the foregoing, whether or not RCW 58.17 .040(6) would otherwise apply, it does not give the right to the proponent to vary the rights of the owners under the CC & Rs or the Plat. To the extent their rights are independently affected, the lot line adjustment does more than adjust lot lines. It creates a new burden on the common areas. RCW 58.17.040(6) permits lot line adjustments only. It does not permit changes to the plat that result from lot line adjustments or violations of the CC & Rs that result from lot line adjustments. Citv of Seattle v. Crispin, 149 Wn.2d 896, 903, 904 (2005) is distinguishable. That case dealt with the purchaser of a property that was zoned and otherwise platted for the use to the intended use. The Court held that Seattle could not impress the mere consolidation of lots in a lot line adjustment to permit such building to conditions other than those set forth in RCW 58.17.040(6). Island County v. Dillingham Development Co., 99 Wn. 2d 215, 223 (1983) similarly dealt with a situation in which the resulting consolidation merely made the resulting lots marketable under the zoning that then applied. There is no suggestion that CC & Rs or use otherwise permitted by the plat itself were varied. Neither case dealt with a situation where the common areas would be additionally burdened or where the use of the property would change from the use to which it could otherwise be placed. In other words, if PLA wished to consolidate lots to build fewer but larger townhouses or to change the mix in size of townhouses, it could do so. Townhouse use is permitted. There only computational changes would occur in voting and assessments easily addressed by counting the original lots. However, that is not what PLA proposes. Rather it proposes to change the ownership nature of the lots so that they no longer comply with the rights impressed by the CC & Rs, to change rights in governance and obligations for assessment in a manner that is not identified, and to change the burden on the common areas as a legal matter and as a substantive matter by changing the density of the development. This is more than RCW 58.17.040(6) permits. I RCW 58.17.040(6) provides an exception from the general application of RCW RCW 58.17.212 and RCW 58.17.215 or certain kinds of lot line adjustments. First, they cannot create any additional lots, tracts, parcels or divisions or any thereof that are not legal divisions. Second, and more important, they must be for the exclusive purpose of altering the lots in a plat by changing boundary lines. Because RCW 58.17 .040(6) is identified as an exception to the general statutory rule, particularly where as here the general rule protects the I The exception provides as follows: "(6) 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;" 3 # - Paoe v LOG iTEM 3 8-OJ .~ -y~ public, here the other lot owners, the exception is narrowly construed. See Nucleonics Alliance, Local Union No. 1-369 et. at v. Washington Public Power Supply System, 101 Wn.2d 24, 29, (1984); Peninsula School Dist. No.1 v. International Union of Operating Engineers, 88 Wn.App. 205, 212 (I 997). PLA and the DCD Staff are construing the exception broadly. The limitations of Crispin, supra, do not compel this result. They only apply to limitations by ordinance. The issue here is the limitation that applies to purpose. PLA seeks and DCD Staff wishes to permit not only a lot line adjustment to change parcel configuration for a purpose that is extrinsic to the reconfiguration of the parcel, namely to change the type of ownership from that permitted by the Plat and CC & Rs to another type of ownership not permitted thereby. DCD Staff does not deal with the further legal issue whether proper construction of the exception to the general protective statutes permits a lot line adjustment that is designed to further two purposes, one to change the lot configuration and two to permit a change of lot ownership, Does this mean that the issue of ownership is reserved for another day? When will this appear before the public? Density is not directly the issue. The issue is whether under this Plat and this set of CC & Rs, ownership interests in the Lots can be changed. DCD Staff fails to address this issue in its zeal to provide the developer the right to configure the lots consistent with this prohibited purpose. To the extent the applications include the condominium declaration or use, the issue is resolved. However it is bifurcated from the transaction to which it is immediately associated. It should not be. The LMC has rights that are affected by the proposed major revision. Under the CC & Rs it is both entitled to dues as a function of lots and as the Architectural Review Committee. See CC & Rs Sec. 17.1 and 11.1. Under the latter role, it must approve each building or improvement that an Owner builds on a Lot. See CC & R Sec. 11.1. The proposal eliminates the concepts of Owner and Lot as to the improvements and buildings. It leaves open the question whether PLA who is not the Declarant is the "Owner" of each of the unbuilt Townhouse Lots. Certainly, PLA has taken that position in exercising control over the Townhouse Association and extending its control over the Master Association by casting votes based on those self same lots. It apparently also takes that position when analyzing liability to make up Townhouse Association shortfalls that are required subsidies of the Declarant under CC & R Sec., 7.12.1. Because it is not the Declarant, it does not owe the subsidy. On the other hand, when it comes to paying dues and assessments, PLA inconsistently has taken the position that it is the successor of the Declarant and exempt therefrom. See CC & Rs, Sec. 7.2. The only question raised is whether the action to challenge PLA is subject to LUP A or is a private action for PLA's breach of the CC & Rs. If the latter obtains, the streamlined LUPA appeal process will not obtain and the action will proceed through a normal judicial process. Given that each townhouse owner, the Townhouse Association, the Master Association, and the LMC each have rights that are affected by the proposal, I think it is fair to say that approval of the proposal will merely result in lengthy litigation over the rights of the parties in the plat and under the CC & Rs. I am curious if this is the intention of the DCD Staff and PLA. B. The SDP and the Lagoon. The DeD Staffs treatment ofthe lagoon is factually faulty. The lagoon is not artificial. Only PLA advances that claim. Rather it is a body of water that was originally part of Ludlow Bay. Its original bank was approximately the present northern 4 lOG ITEf\" # '~~1 --E- ot-<iz, bank of the west and central portions of the lagoon. It was partially, then wholly cut off from Ludlow Bay by a berm constructed by Pope & Talbot in connection with its sawmill operation. It has been and remains connected to Ludlow Bay by conduit and shares water with Ludlow Bay at mean higher high tide. Thus, the lagoon remains tidal. The lagoon was enhanced at its eastern end by removal of material in connection with the construction of the hotel. The material had contaminants from the sawmill operation. Mr. Nobles has presented historical photographs to the DOE and has submitted them as log items to demonstrate that the lagoon was not the artificial creation either of the sawmill or of the development of Ludlow Bay as a community. The "artificial body of water" and "decorative pond" theory emanate from PLA. They are interposed for the limited purpose of showing that the lagoon is not a wetland justifying residential construction over water. As DCD Staff correctly concludes based on the October 25, 2004 letter from the DOE, the Jefferson County Master Shoreline Management Program (the "Program") bars residenti~l construction over water anyway and as to the revised plan, the issue is moot. I address the issue for two reasons. First, PLA continues to pursue the notion. I urge the Hearing Examiner to follow the DOE and reject this attempt to misrepresent the lagoon and to determine that as a body of water, residential construction over it is not permitted. Second, and more important, I raise the issue that the lagoon is part of Ludlow Bay. The issue of the lagoon's relationship with Ludlow Bay was posed by the final paragraph of the Doe's October 25, 2004 response to this question. The DOE confirmed that the lagoon is connected to Ludlow Bay at mean higher high tide and thus is tidal. This means that Ludlow Bay is not an independent body of water or wetland but rather a wetland as a result of its tidal characteristic. This conclusion is consistent with SDP 91-017(27) that requires a weir outlet to the pond "to prevent fish entrapment in the pond." Fish can be entrapped in the pond only if they can get to the pond from Ludlow Bay. It is part of Ludlow Bay. Because it remains tidal under certain conditions and is part of Ludlow Bay, its shore land is subject to the Shoreline Management Act, 91.58 RCW (the "SMA"), Chapter 197.73 WAC (the "Shoreline Regulation"), and the Program. Program Section Sec. 5.160, Performance Standard 9 specifies that construction, other than construction for water related uses such as marinas and docks cannot intrude in the thirty (30) foot zone measured from high-water vegetation. WAC 173-27-150(1) (c) provides that an SDP may be granted only if it "is consistent with the applicable master program". For reasons set forth below, the application for the SDP for the Major Revision is not consistent with the Program and cannot be approved. A review of the application ofPLA shows that the condition that construction not occur within the thirty (30) foot zone measured from the high tide vegetation line has been violated. The condominiums proposed to be located on the east and north side of the lagoon is located within thirty (30) feet of the high water vegetation line of the lagoon. DCD cannot authorize construction of these units unless they are moved back from such vegetation line. To authorize same would violate the SMA, the Shoreline Regulation and the Program. Currently, PLA and its predecessor, Pope Resources, are in violation of SDP 91-017. SDP 91-017 placed 51 conditions on the right to develop in the shore land surrounding the lagoon. These included planting eel grass on the floor of the lagoon, planting native vegetation 5 LOG ITEiVi 2"Vj _0 -:u.. around the lagoon to create a loafing area for marine birdlife, maintaining water quality of the lagoon, and promoting fish and shell fish in the lagoon. There is a landscape plan association with SDP 91-017. It provides detail to the native vegetation surrounding the lagoon. Pope Resources budgeted $75,000 for the landscaping. Because the dredging of the lagoon and hotel area to remove contaminants overran budget, management for Pope Resources elected to use the landscape budget to cover those costs. As a result, the required landscaping was left undone notwithstanding a letter from Mr. Goldsmith of Jefferson County to the contrary. Neither Pope Resources nor PLA have taken any action to correct the deficiencies. The deficiencies were compounded by PLA's decision unofficially and without any permit to create a parking lot from several of its building sites contiguous to the Inn. The parking lot is a large impervious layer depositing water and contaminants into the lagoon. Finally, notwithstanding the lapse of the right to construct improvements in the Ludlow Village Townhouse Plat as a result of the lapse of construction rights under SDP 91-017, PLA has constructed twelve townhouse units in therein, all in the shore land and all in violation of the requirements that a new SDP be sought under then current environmental conditions. Jefferson County has been noticed of these violations. It has not made any effort at all to enforce SDP 91-017 against Pope Resources or PLA. PLA has continued to violate SDP 91-017 and is in violation thereof today. See SDP 91-017, particularly, conditions 6, 10, 13,21-24,26-29,27, and 46. As part of its proposal for a Major Revision, PLA seeks a new SOP to cover its new, principally residential, build out along the lagoon. That permit application does nothing to cure any of the existing violations relating to the quality of the lagoon or the violations of construction rights thereunder. The suggestion in the DCO Staff Report that the prior violations are cured by the current permit application are factually and legally in error. In fact, in two regards, the proposed Major Revision !hreatens to worsen the conditions of the lagoon. First, it threatens to increase residential density immediately contiguous to the lagoon from twenty seven units to fifty nine units. Second, it threatens to make permanent the parking lot it unlawfully developed on the east end of the lagoon. Third, it threatens to increase the amount of storm water to be introduced into the lagoon as part of the storm water plan. SOP 91-017 permitted the lagoon to be used as part of the storm water system under certain conditions. These have been, continue to be and will be in the future violated by the Major Revision. SOP 91-017 is also relevant as to the nature of what may be built in the MPR Resort Zone. It was approved against a proposal to build a "36 room hotel", "5 detached single family residences and 53 attached single family residences in 14 multi-unit structures." It included "landscaping and recreational amenities including construction of vegetated artificial dunes on the southerly portion of the spit, trails and a pedestrian bridge, outdoor sports courts, and expansion of existing pond". It further included 1 0.5 acres of undeveloped open space. See SOP 91-017, Proposal. Notwithstanding Mr. James Pearson's letter of February 2, 1994 to Mr. Ajax, cited in Mr. Goldsmith's letter of March 9,2004 to Mr. Nobles, these amenities were not completed. Further, Mr. Pearson's letter does not represent more than Mr. Pearson's opinion. It is not a final action by the lead agency. More important, the limitations to density were built into the project. The Major Revision and the proposed SOP would conflict these conditions upon which the original permit issued. The application for a new SOP should not vitiate conditions of the existing SOP that protect the subject lagoon and shore land. 6 LOG r~r"~ 7e:fl. '.. .. 7 __ c. ~z.. The lagoon and the Ludlow Village Townhouse Plat are part of a master planned resort. A master planned resort permits residential development outside of an urban growth area, but only if it is subordinate to and supportive of the resort. For this purpose the resort is public transient housing and the recreational facilities to be used by the transient guests thereof. A master planned resort must be significantly integrated and self supporting. See RCW 36.70A.360 and 36.70A.362. The requirement of significant integration is here important. If the master planned resort is integrated, a violation of a land use law such as an SDP in one area of the master planned resort or at one time cannot be left uncured while another SDP is issued for another area or another time. Otherwise, what is the meaning of integrated? The master planned resort is a unity. Violations of environmental law cannot be left uncured and ignored while the developer is permitted to construct on new permits in other areas. The law must be uniformly enforced. Here, this requires that the new SDP be rejected until PLA cures the violations ofthe existing SD P 91-017 and modifies the proposal so that the adverse results of the proposal, that is increasing nutrient rich fresh water into the lagoon are not permitted. Other than bare factual allegations, the DCD Staff Report contains no factual basis for concluding that the lagoon should be burdened with additional storm water. It has not made a showing that it, as opposed to PLA, has independently monitored water quality in the lagoon. This is the more shocking because I sent photographs to DCD last summer, included in the log on Olympic Terrace II showing algae bloom on the lagoon. The problems creating algae bloom are systemic. Sweeping the surface of the lagoon as PLA does from time to time merely hides and does not solve the problem. PLA should be compelled to cure the conditions to SDP 91-017 as a condition to the issuance of any additional SDPs within the master planned resort. I believe the power to revoke an SDP that is in default carries with it the power to refuse to issue a new SDP to the defaulting applicant for development in the same project. I think this is supported by RCW 90.58.140(8) that allows an SDP to be revoked for failure to abide by its conditions and with WAC 173-27- 260 that permit a stop work order to be placed on the project for violation of the SMA and an SDP. It is further consistent with Section 9.101 ofthe Program that provides that either the Washington State Attorney General or the Jefferson County Attorney "shall bring such injunctive, declaratory, or other actions as are necessary to ensure that no uses are made of the shorelines of the state in conflict with the provisions of the Shoreline Management Act and this Master Program, and to otherwise advance the provisions of each." The requirement is mandatory. The operative word is "shall". Why then is DCD Staff advancing a use of the shore land surrounding the lagoon that violates the Program and does not "otherwise advance the provisions of each"? C. Growth Management Issues. The DCD Staff misapprehends the legal requirements and compliance required to approve the modifications to the Resort Plan. It takes the position that the modification may be analyzed as a reduction of the resort amenities from the maximum permitted by Section 3.901 ofthe MPR Code (the "Resort Plan"). Parenthetically, the Resort Plan is a substantive part of the Development Agreement as Appendix 1 thereto. Section 4.7 of the Development Agreement incorporates Exhibits and Appendices as operative parts of the Development Agreement. Subject to modification, the Development Agreement is a binding agreement between Jefferson County and PLA. 7 LOt'" I "7'".'" It " - ~..~q Pa'""o lb ,G . 'l;:J'O;;.. -_L~ As I understand it, DCD reasons that Section 3.901 and its component 17 parts establish the maximum scope but not a binding scope of the resort amenities to be built by PLA during the twenty year vesting period available under the Development Agreement. It reasons that the first sentence of the introductory paragraph provides that the resort "shall not exceed the scope of development set forth below" and that the second sentence provides "changes to this Resort Plan that decrease the sizes noted below are allowed". It then focuses upon language in Section 3.11 of the Development Agreement that makes reference to the development subject to the agreement as subject to modifications to achieve certain purposes including "responding to changing.. . market needs". Based thereon, it describes a phased build out of residential improvements, including sixty three (63) stacked condominiums in the Townhouse Plat and additional stacked condominiums in an inadequately described configuration in Admiralty III. This expansion is imprecisely described in the Final Supplemental Environmental Impact Statement for the Major Revision published by Jefferson County on May 20, 2005.2 The phased residential build out is associated with and apparently conditioned upon a phased build out of the resort amenities that PLA has agreed to build. An examination of the resort amenities shows the fallacy of DCD Staff s position. In place of 498,300 square feet of resort amenities promised in the Resort Plan, none of which are residential improvements, the proposal recites "the proposal will shift the focus of the Resort from a conference facility serving large groups, to a destination resort for the traveling public." It further recites that "the proposed revision will reduce the overall amount of resort development at build-out and will include fewer commercial and public facilities, but it will include more residential units that the existing.. . Resort Plan.,,3 Rather than a resort anchored by a two hundred seventy five (275) room hotel with fifty nine thousand (59,000) square feet of restaurants, five thousand (5,000) square feet of lounges, thirty thousand (30,000) square feet of conference center with support facilities, twenty six thousand (26,000) square feet of indoor tennis courts, thirteen thousand five hundred (13,500) square feet of indoor sports and pool complex, seven thousand five hundred (7,500)square feet of museum and interpretive center, four thousand (4,000) square feet of youth center, and an amphitheater, it offers seven thousand five hundred (7,500) square feet of indoor sports and pool complex, conditioned upon acceptance by the Townhouse Association, additional trails, and park equipment. Its change in the restaurant actually shrinks the Harbormaster facility from about five thousand (5,000) square feet of indoor restaurant and lounge space to five thousand square feet of indoor and outdoor restaurant and lounge space. It promises roughly the same facilities for retail and the marina building. It shrinks the marina expansion by forty (40) slips from one hundred (100) slips to 2 Reference is made to admissions contained in the DCD Staff Report to an additional change in the layout of the residential development to eliminate building over water. That change was introduced in late June, 2005. It is unclear if the final proposal is identical to Alternative 4 in the FSEIS. IfPLA's final proposal varies frpm Alternative 4, it constitutes a new proposal not included therein. DCD Staff accordingly must identify whether there is a change from that proposed it proposals one through four in the FSEIS and if there is one reopen the FSEIS to modification and comment. See. RCW 36.70A.035(2)(b)(iii). The changes to the environmental impact statement would be more extensive than the clerical changes permitted thereby and would require reissuance of the statement or a supplement thereto because it was issued in connection with the adoption or modification of a "proposed change" . 3 FSEIS, p.l-I. 8 Lf'r. IT't=I\./i 523'1 a '42- ~ -~- ,~~,---=~ .. . sixty (60) slips. It adds no new hotel space. It eliminates the youth center and museum. The amount of additional parking is far less than that promised in the resort plan. The plan provides no comparative details as to parking. Only the boardwalk and trail expansion is new. The boardwalk does little more than provide pedestrian access to the Inn across the berm, a legal requirement for the roadway in any event. The trails are not even resort amenities. Rather they are recreation areas amenities identified in Section 3.602 of the MPR Code.4 What has occurred, roughly, ignoring parking, is that the resort amenities have been shrunk by one hundred sixteen thousand (116,000) square feet of resort amenities and two hundred thirty eight (238) units of public transient accommodations. The new "resort expansion" offers about six percent (6%) of the square feet of resort type amenities excluding accommodations and 13% of the public transient accommodations provided in the Resort Plan. In place ofthese items, the Major Revision promises an increase in the residential units in the Townhouse Plat from fifty eight (58) to eighty nine (89) units.s Additional residential density is promised for Admiralty III. The Major Revision only adds about seven thousand five hundred (7,500) square feet of additional resort amenities, sixty (60) vessel slips,6 and two thousand four hundred square feet of retail space over that which existed in 1995 or was committed in 1993 under the plan submitted by PLA's predecessor to ob~in SDP 91-017.7 In summary, the "resort amenities" and resort accommodations are shrunk by the plan to approximately the acre or so thereof that existed in 1995 after the construction of the Inn. There will be, in short, no "master planned resort" at Ludlow Bay as that term is described in RCW 36.70A.360, 36.70A.362,8 and JCC 18.15.123, 18.15.126, and 18.15.135.. 4 JCC 18.15.123(3) would include nature trails as resort amenities. The issue here is that provision was already made for the trails other than in the Resort Plan itself and the trails do not constitute a substitution in scope as required by the Development Agreement. 5 The original plat was hotly contested over the issue of density. The fifty eight (58) total units represented a compromise between Pope Resources and the community at Ludlow Bay reached in 1994. The proposed Major Revision violates that understanding. 6 The FSEIS proposes one hundred (100) new slips in Alternative I and sixty (60) in Alternative 4. Which controls is unclear. In each case, the slips will be leased as permanent moorage and will not increase public transient use of the resort. This follows because PLA cannot fill its existing transient slips on a regular basis. Adding to those slips would make no economic sense. The underlying problem, the reason why the project is left without increase in public transient accommodations, is that PLA has no intent to develop a destination resort, convention center, or any other like facility. 7 The marina building and yacht club are located and promised in the proposal contained in SDP 91-017 and do not represent any addition to the existing project. Similarly, the landscaping around the lagoon merely substitutes for the landscaping that PLA is obligated to provide under SDP 91-017. It is partial fulfillment of an existing legal obligation or condition. 8 While the master resort was technically approved under RCW 36.70A.362, the reference therein to the resort as in existence in 1990 would predate the Inn and leave the "existing resort" without public transient accommodations. Obviously, the Jefferson County Board of County Commissioners ("BoCC") intended the Inn to be considered. A review of the documentation relating to the approval of the master planned resort at Ludlow Bay when attached to the log by DCD will show conclusively that the BoCC and DCD. looked for a resort ofthe scope described in the Resort Plan and not the "resort" as it existed in 1990 or 1995. Request is made for the inclusion of such materials when compiled by DCD and for the opportunity to review and respond thereto by the public as part of the comment associated with the hearing for which this statement is submitted. 9 ;# LO(7 !TI=M _3. e '1 10 -11< The issues are quite clear. Does the proposed Major Revision endorsed by DCD Staff so reduce the resort amenities and public transient accommodations from those promised in the Resort Plan that the result no longer meets the conditions of a master planned resort within the contemplation of the enabling legislation or the Comprehensive Plan? Jfthe answer to the preceding question is negative, are the 1,800 acres in the MPR to which DCD Staff makes reference no longer compliant with and permissive of continued urban development? This author concludes that the Major Revision puts the MPR out of compliance with the enabling legislation, Comprehensive Plan, and Growth Management Act and requires that further residential development in the MPR be halted until a Revision to the Resort Plan is proposed that meets the changed circumstances from the adoption of the original Resort Plan and provides a resort with sufficient scope to justify further residential build out permitted under the MPR Code and Development Agreement. Analysis must begin with the initial attempt to permit urban development at Ludlow Bay under the GMA. On January 17, 1995, the BOCCadopted Ordinance No. 01-0117-95 (the "IUGA Ordinance") declaring the Ludlow Bay area an interim urban growth area based upon the conclusion that it met the requirements of WAC 365-195-335. The JUGA Ordinance declared that Ludlow Bay had a population of about 1,180 occupying 1,340 residential lots and a projection that the Ludlow Bay area would grow in population by 2012 to 2,703, approximately Ludlow Bay's present population. It identified Ludlow Bay as the fastest growing urban area in Jefferson County.9 The JUGA Ordinance was appealed to the Western Washington Growth Management Hearing Board (the "Board"). In September, 1995, the Western Washington Growth Management Hearing Board concluded: On its face Ordinance #01-0117-95 looks like a thorough, well thought out piece of legislation. However, the cornerstone and premises upon which this amendment to the JUGA Ordinance is based remain fatally flawed for compliance with the GMA. The Port Ludlow JUGA was adopted without proper population allocation; without evidence of preexisting urban densities; without the requisite LOS standards; without adequate analysis of capital facilities needs and fiscal impacts of growth for the entire JUGA from a county wide perspective; without assurance that either "public" facilities and services already exist or would be equitably available within the JUGA; and without proper review of the adequacy of the water supply for an urban community at Port Ludlow. The Board ordered: We find by a preponderance of the evidence that Jefferson County is not in compliance with the Growth Management Act with the adoption of Ordinance #01-0117-95. In order to achieve compliance Jefferson County must repeal this Ordinance within 30 days and may not extend any JUGA beyond municipal boundaries until requisite analY9'is has been completed. What is critical here is the identification of the absence of adequate assurance of "public facilities and services". Since the public facilities and services that existed in 1995 are the same 9IUGA Ordinance, Finding 3(A)-(C) and Part iv(5). 10 36Cj rL__~ch3b" F as those that exist today, it is reasonable to conclude that the Board's order remains in effect but for the designation and continued qualification of Ludlow Bay as a master planned resort. 10 Except as to subdivisions approved between the adoption of the IUGA Ordinance and the Board's Order to the extent principles of vesting apply thereto, further subdivisions and build out at Ludlow Bay are approved only if they are compliant with the MPR Code and if Ludlow Bay remains compliant with the enabling legislation permitting its designation as a master planned resort. To permit further urban development at a density in excess ofthe default density, that is one (1) residence per five (5) acres, PLA's predecessor sought to have master planned resort classification available to its property at Ludlow Bay and to have Ludlow Bay designated as a master planned resort by the BoCC in its Comprehensive Plan. It succeeded in both. In 1998, the Comprehensive Plan identified Ludlow Bay as a Master Planned Resort under RCW 36.70A.362. The next year, the BoCC adopted Ordinance 08-1004-99 providing a regulation (the "MPR Code") for the Ludlow Bay Master Planned Resort (the "MPR"). The next year pursuant to BoCC Resolution 42-00, PLA's predecessor and Jefferson County entered a development agreement (the "Development Agreement") to implement and execute the MPR Code and MPR. The MPR Code and the Development Agreement both contained the Resort Plan that is set forth in MP.R Code Sec. 3.901. Thereafter, PLA's predecessor decided not to retain the MPR and sold its rights in 2001 to PLA. PLA has developed lots in certain existing subdivisions, twelve in the Townhouse Plat that are in violation ofSDp 91-017, the development rights with respect to which lapsed in 1998. PLA has also sought approval of three residential developments, Olympic Terrace II, an eighty (80) lot single family detached residential subdivision, Ludlow Cove II, for which consent is sought to locate a one hundred twenty unit Trend West resort, and the Resort Zone under the MPR Code for which consent is sought for a Major Revision to the Resort Plan discussed herein. The first two proposals are subject to current LUP A Petitions, one by the author and others and one by PLA. The remaining proposal is the subject hereof and of a hearing scheduled for January 17th and 18th, 2006 before Hearing Examiner Berteig. DCD Staff misreads both the MPR Code and Development Agreement as these apply to the approval of the Major Revision. The Resort Plan in Section 3.901 is not just the maximum resort but is the binding Resort Plan subject to modifications as revisions to the MPR Code. This follows because the last sentence of the first paragraph of Section 3.901 that DCD Staff neglects to cite provides: "As of the effective date of this ordinance, the Resort Plan shall be as set forth herein." Section 1.30 of the MPR Code provides that the word "shall" is mandatory, not permissive. I I Thus, the conclusion of DCD Staff and PLA, that PLA is merely exercising its 10 This follows because the Board's order was not appealed and the lUG A Ordinance was withdrawn. . II The language ofthe ordinance should be harmonized. The first two sentences ofMPR Code Sec. 3.901 read consistently with the third sentence if the provisions governing revisions in Sections 3.905-3.907 are taken into account. As ofthe date of the MPR Code and subject to revisions as provided therein the last sentence is mandatory. In effect this is how DCD is interpreting the provision. It requires a revision to the Resort Plan under the provisions governing revisions. See City of Bellevue v. East Bellevue Community Council, 138 WN.2d 937, 944,945 (1999); DGHl Enterprises v. Pacific Cities. Inc. 137 Wn.2d 933, 941; S. Martinelli & Co.. Inc. v. Dep't of Rev., 80 Wn.App. 930, 940 (1996) at footnote 6. Collectively, these require all provisions ofthe ordinance to be given effect, the purpose of the ordinance to be controlling, and the effect of the provisions to be haree:;dMi:!rvffered. 1 1 781. "<{"7- right to shrink the resort amenities at will is untrue. Rather, as both recognize by requiring that the resort amenities be modified and that residential use be substituted therefore be approved only as a Major Revision pursuant to Sections 3.905 and 3.906 of the MPR Code. Were this not the case, PLA could simply have changed the scope of the resort by fiat and notice to DCD. Obviously, this is not the case. Further, Section 3.11 of the Development Agreement does not support DCD Staff's conclusion that it is permissible simply to shrink the size of the resort. DCD Staff fails to cite the relevant language therein. It provides: However, the parties acknowledge that modifications to the proposed development will occur during the build out period in order to achieve a variety of purposes, including: incorporation of new information; responding to changing community and market needs; encouraging reasonably priced housing; and encouraging modifications that provide comparable benefit or functional equivalent with no significant reduction of public benefits or increased cost to the development (collectively, "Flexibility Objectives") Absent from DCD Staff s analysis is the identification of "new information", changes in "community or market needs", or "comparable benefit or functional equivalent with no reduction of public benefits". Reciting that PLA has changed its business plan without independent analysis falls short ofthe mark. There is no analysis how a thirty seven (37) unit hotel without amenities beyond those available or promised in 1995, a hotel that is by admission of Mr. Verrue losing money,12 will suddenly become a successful destination resort. There is no explanation how the hotel can operate without a convention center that PLA seeks currently to sell to a church.13 If the resort with the same golf club that it has had since PLA acquired the MPR has at all times lost money which it has, why has PLA not previously made it a destination resort, whatever that may mean, and converted it to profitability? The answer is simple. If it could operate a 37 unit hotel as a destination resort profitably without building new resort amenities, it would have done so. After all, it has not needed a health center and pool. It continues to enjoy the right to use the North Bay facility for the hotel. The beach remains the same. The restaurant facilities, if anything area larger than under the plan. How then does anyone at DCD Staff conclude that PLA is actually planning a destination resort? IfDCD Staff reaches such an absurd conclusion, it needs to show the author and others monitoring its actions respecting 12 Since Mr. Verrue and Mr. McCarry have seen fit to breach the confidentiality protocol respecting Mr. Verrue's negotiations with the author and others appealing PLA's development plans, the undersigned wishes to add the following. In the negotiation, Mr. Verrue disclosed that the golf course, the Inn and the Harbormaster Restaurant were and had been losing money. He further disclosed that the twenty seven hold golf course, the center piece of the resort, is and has been the biggest money loser, losing about $400,000 per year. He further disclosed that the golf club had only 217 members and that it would take 600 members to break even the infrastructure costs. He further disclosed that the golf club house and irrigation improvements would cost about $5,800,000. These ar~ the facts he has not shared with Jefferson County or the Ludlow Bay Community. It is patently obvious from even a cursory review of these admissions that PLA has no intent and probably no ability to make the golf course improvements without regard to promises repeatedly made by Mr. McCany to the Ludlow Bay Community and Jefferson County to induce each to approve its various plat proposals identified herein, separately, on a piecemeal basis in violation of SEPA. \3 It is not actually the case that PLA has ever tried to operate a convention business. The convention center has been closed since at least 2002. 12 LOG ITEM 381 \ 3 'Yz. Ludlow Bay the analysis and data upon which it reached such conclusions. Naked citation to the change in business plan of PLA, a change that occurred three years ago with the abandonment of the convention center, does not meet the requirement of an independent evaluation necessary to justify the requested modification under Section 3.11 of the Development Agreement, to say nothing of the Major Revision of the Resort Plan. The absence of any meaningful independent analysis in the DCD Staff Report to justify the variance from the Resort Plan under Section 3.11 mandates that the Hearing Examiner remand same for further study. An examination of the requirements of a major revision of the Report Plan provides no more support for DCD Staff. Under the decision criteria, a major revision may be approved only if it would further goals and policies of the Comprehensive Plan, that the proposed major revision is "consistent with all applicable development regulations", that "on-site and off-site infrastructure, (including but not limited to water, sewer, storm water and transportation facilities impact have been fully considered and mitigated" and that "the proposed revision complements the existing resort facilities, meets the needs of residents and patrons, and provides for unified development, integrated design and. . ." Here, the proposal meets none of these requirements. It is not consistent with the requirement ofRCW 36.70A.362 or JCC 18.15.126 or 135. There is no showing that each phase if the next phase is not developed is self supporting. There is no showing that there will be a resort sufficient to carry the residential development so that it is subordinate thereto and supportive thereof. There is no showing of adequacy of public services and facilities at the culmination of each phase. Rather, it is clear that public services and facilities are not available. This is confirmed in Loomis v. Jefferson County, WWGMHB, Sept. 1995 as well as in the opinions of the fire marshal that roadway access to the hotel is insufficient, the author's engineering report on Heron Rd., confirming same for Heron Rd., and the submission of the Jefferson County Sheriff for the Major Revision as well as Olympic Terrace II and Ludlow Cove II, that there are insufficient police personnel to provide police protection at Ludlow Bay.14 Beyond accepting an unsupported confirmation by PLA and its subsidiary Olympic that sewer and water utilities are adequate in scope, adequately maintained and adequately reserved, there is no independent confirmation of record that any of these statements is the case. To inquiry about the duty to monitor, Jefferson County has admitted that it does not monitor these core utilities or the financial ability of the private utility to provide same and that it relies upon statements of such private utility. What happens if the sewer fails and contaminants are deposited in Ludlow Bay? It is Jefferson County, by admission that is liable. The author has asked that sewer monitoring, physical, operational, and accounting be made part of the log. The undersigned asks that this be inspected with a view to determine its reliability before approving this proposal. Most important, the proposal and DCD Staffs Report advance a plan that violates or results in a violation of the GMA at Ludlow Bay. The GMA advances the position that urban growth should be limited to areas that qualify as urban growth areas. These are areas 'in which urban density is more significant that any other use ofthe property, either because the property is within a municipal area, an area in which urban growth developed before the GMA or an area designated for urban' growth under an exception to the limitation of urban growth to urban growth areas for planned unit developments and master planned resorts. Urban growth is not 14 Log Item 305; Lot Item 184, Exhibit B; and, Olympic Terrace II Log Item 27. ITErv1 '3 /:J 7~.-==-, 1~1-?: 13 favored over other uses.15 It is a land use that is restricted to limited areas in which there are or will be in the projected future public services and facilities. These include, without limitation, fire protection, police protection, water delivery, sewage, storm water drainage, and secondarily, jobs, schools, health services and other commercial or retail services that would be available in an urban setting.16 Urban growth areas, the principal areas in which urban growth is permitted or encouraged includes such services. Such services must be planned and committed in planned urban developments, such services must either be planned or be a natural outgrowth of the economic development of master planned resorts. Here, the Western Washington Growth Management Hearing Board has declared such public services and facilities to be deficient. The master planned resort is being reduced in scope so that it is unlikely to develop the economic support necessary to create same. There is no plan or ability by Jefferson County to provide same. There is no demonstration that the private utility, Olympic, has the financial and physical ability to continue to provide its public services of water and sewer.17 In short, there is no evidence that public services and facilities necessary to support the MPR now exist or may exist in the foreseeable future. On its face, the proposed Major Revision violates the GMA. The GMA provides: Urban growth should be located first in areas already characterized by urban growth that have adequate existing public facility and service capacity to serve such development, second in areas already characterized by urban growth that will be served adequately by a combination of both existing public facilities and services and any additional needed public facilities and services that are provided by either public or private sources, and third in the remaining portions of urban growth areas. Urban growth may also be located in designated new fully contained communities as defined in RCW 36.70A.350. As noted above, the Western Washington Growth Management Hearing Board already has declared that Ludlow Bay lacks requisite public services and facilities. The proposed Major Revision not only contains no provisions to add same but is also subject to comments by the fire marshal and sheriff calling to question whether adequate fire and police protection are uniformly present or can easily be made present considering the substandard road system in the resort zone. When faced with the decision, PLA's predecessor and Jefferson County did not fix the problem by providing the studies and public services and facilities called for thereby. Rather, they sought another way to obtain the right to residential build out without dealing with such problem. That way was the master planned resort designation described above. Under limited circumstances, master planned resort classification permits residential build out. The condition thereto is that the resort be a significantly self contained and integrated development that includes short-term visitor accommodations associated with a range of indoor and outdoor recreational facilities IS RCW 36.70A.llO; WAC 365-195-335(1)(t). 16 RCW 36.70A.360(2) and (4)(e); JCC 18.15.126, 135. 17 The author has requested copies of operating monitoring reports, asset quality reports, and financial reports about to confirm that Jefferson County has properly monitored a private utility that does not have public disclosures. The information has been requested for the log. Request is made to review same and comment before its inclusion into the log record. 1 ITr:f\~ " ;~:{ J! p$7 .J2.. L.r?:,_ 14 within the property boundaries. It permits "other permanent residential uses... but only if these other uses are integrated into and consistent with the on-site recreational nature of the resort". 18 An existing MPR can be authorized only if "on-site and off-site infrastructure impacts are fully considered and mitigated.,,19 While the MPR was officially authorized as an existing resort, the DeD Staff Report by citing to RCW 36.70A.360, the statute generally authorizing master planned resorts shows awareness that it contains additional applicable standards. These include requirements for "capital facilities, utilities, and services, including those related to sewer, water, storm water, security, fire suppression, and emergency medical provided on-site..." 20 It clarifies that the "primary focus of the master planned resort is on "destination resort facilities consisting of short term visitor accommodations associated with a range of developed on-site indoor or outdoor recreational facilities.,,21 WAC 366-195-335(1) (2) clarifies that a master planned resort must comply with RCW 36.70A.360. The resort expansion plan that is the "Resort Plan" in the MPR Code shows that Jefferson County and PLA's predecessor were fully aware that a master planned resort required transient visitor accommodations more significant than the existing thirty seven (37) unit hotel. Hence, the Resort Plan expanded the resort amenities tenfold and the visitor accommodations sevenfold. The requirements for a master planned resort are explained in lCC 18.15.115-137. To be approved, a master planned resort, if phased, must provide that "each phase contains adequate infrastructure, open space recreational facilities, landscaping and all other conditions of the MPR sufficient to stand alone ifno subsequent phases are developed.,,22 It must be demonstrated that the MPR will provide active recreational uses, adequate open space, and sufficient services such as transportation access, public safety, and social and health services, to adequately meet the needs ofthe guests and residents of the MPR.'.23 It must show that "the MPR will contain within the development all necessary supportive and accessory on-site urban level commercial and other services, and such services shall be oriented to serve the MPR.',24 The requirement that onsite and offsite infrastructure be considered and mitigated is repeated.25 The bar against urban development outside designated urban growth areas or planned unit developments, including 18 RCW 36.70A.362, first paragraph. 19 RCW 36.70A.362(5). See similarly RCW 36.70A.360(3)(e). 20 RCW 36.70A.360(2) 21 RCW 36.70A.360(1). 22 JCC 18.15.135(3). The stand alone requirements are concurrency requirements. The argument made by Mr. De Sa e Silva at the hearing of June 7, 2005 before Hearing Examiner Berteig and again before Hearing Examiner Galt on September 30, 2005 that there was no requirement that the resort be built concurrent with the residential development, or at all, violates the concurrency requirement set forth in WAC 365-195-070(3), 510 arid 835 and recognized by JCC 18.15.126(h) 23 JCC 18.15.135(4); JCC 18.15.126(IXb), (h). 24 JCC 18.15.135(5); JCC 18.15.126(i)(i). 25 JCC 18.15.135(7) 15 .'" li;~:;.l\A ~.~9 .....L~._. .e12-- master planned resorts is recognized.26 The MPR is recognized as a master planned resort for purposes of the Unified Development Code.27 The resort and resort amenity emphasis is confirmed. Residential uses are permitted "when such uses are integrated into and support the on-site recreational nature of the master planned resort.,,28 Clearly, that recognition was based upon the Resort Plan that is set forth in the MPR Code Sec. 3.901 and not the proposed Major Revision.29 While the provisions identified in this paragraph were adopted after the Development Agreement, descriptively they reflect an understanding of the nature of a master planned resort, the requirements of its development agreement, the emphasis of a master planned resort and particularly public transient accommodations, and the need for public services and facilities, including commercial facilities that are compatible with the Resort Plan and are incompatible with the proposed Major Revision. The further recognize that under existing law that applied at the time the MPR was approved, the GMA did not permit urban growth beyond those areas that are designated for same in RCW 36.70A.110. Other than reciting the words "destination resort", there has been no attempt by DCD Staff or PLA to show that either seriously contemplates a development qualifying as a master planned resort. The Inn, Harbormaster Restaurant and golf course have been operating, defacto, without convention facilities, that is as a destination resort for the last three years. Mr. Verrue has confirmed that all three lose money. There already are trails and a small commercial and retail center in the MPR. There is already a marina, the guest moorage of which is virtually never full. There is already a pool and recreational facility available to the Inn and Marina.3D 26 JCC 18.15.126(5). That provision states: "Self-Contained Development. All necessary supportive and accessory on-site urban-level commercial and other services should be contained within the boundaries of the MPR, and such services shall be oriented to serve the MPR. New urban or suburban development and land uses are prohibited outside the boundaries of a master planned resort, except in areas otherwise designated as urban growth areas in compliance with RCW 36.70A.llO. [Ord. 7-01 ~ 2 (Exh. B); Ord. 11-00 S 3.4(3)]" 27 JCC 18.15.137. 28 JCC 18.15.123(1). In fact, 65% ofthe total accommodations must be "short-term visitor accommodations". JCC 18.15.123(2). 29 The argument advanced by PLA and DCD Staff that the downsized stacked condominiums will provide additional rental units for the Inn is not supported by any objective data. While the units may be less expensive than the townhouses they will not be inexpensive to buyers. Existing units in the Admiralties are now selling for as much as $350,000 to $400,000. It is unlikely that the proposed stacked condominiums will sell for less. If the hotel cannot obtain units from the Admiralties that were initially developed for the purpose, why would anyone think it will obtain units from the proposed new condominiums? The townhouses can be rented short term only through the hotel. They do not provide additional units to it. Logically, it is not particularly likely that there will be a significant number of persons who pay $400,000 or so for a vacation home that will risk that home with its contents to transient guests through the hotel. To the knowledge of this author, there is no objective support for the proposition that the additional units will be available. Finally, considering that the Inn is generally not full, it is questionab1e whether there is any demand at all for the new units as part of a rental pool through the Inn. 30 The problem is not past and current availability but that PLA will lose its right to use the Bay Club in a few years. It realizes that such a facility should be available to the Inn. However, it does not want to take the financial responsibility for the facility. Hence, it argues that the seven thousand five hundred square foot pool and health club should be funded by removing the Townhouse Plat, Townhouse Association and its owners from membership in the LMC and shifting them to the new facility to provide for its economic support. This concept, particularly where it utilizes Jefferson County to execute it sounds in tea splashing in Boston Harbor. Nowhere in the proposed Major 16 g-y" ;- fv1 3g~ 2_ _.~, The convention facility has been closed for three (3) years. Ifthe Inn with the same recreational facilities could not be operated successfully as a destination resort during the last three (3) years why would anyone conclude that the same scale facility with cosmetic changes would suddenly be profitable or that PLA and DCD Staff should even consider that it would. Most of the proposed resort amenities either were provided or could have been provided without any modification to the Resort Plan. The Major Revision is proposed not for those amenities but rather to expand the number of residential units in the resort zone, to decrease their size, to increase their density, and to change the nature of ownership interests therein from fee simple ownership to stacked condominiums to facilitate same. It is absolutely clear and the additions to the log that the author has requested will show further that the Resort Plan in scope and identity of amenities was considered a requirement for the classification ofthe MPR. The proposed Major Revision stripped of cosmetics eliminates the scope of resort housing and facilities that met the requirement. There is no expansion from the core resort here in 1995. That resort was not of adequate size to meet the requirements of a master planned resort. Were that not the case, the initial Resort Plan would have been limited to the existing resort with provisions for future expansion. Rather, the Development Agreement incorporating same clearly tied the right to develop four hundred fifty nine additional housing units to the development of a vastly expanded resort. The nexus was created to justify the housing, not vice versa. PLA's predecessor is unlikely to have agreed to be bound by the requirement of the Resort Plan unless it was the condition to the housing. Unless the requirement for resort accommodations and amenities is met, the 1,800 acres in the MPR cannot be a master planned resort within the meaning of the legislation authorizing same. They neither meet the requirement that the resort and public transient housing facilities be the principal purpose of the area so classified nor the requirement for adequate public service and facility infrastructure. Clearly, public services and facilities are not available uniformly through the MPR today. The fire marshal and sheriff have confirmed this. The DCD Staff have not shown that the water and sewer are available to cover the expansion of use contemplated by the residential build out. It is confirmed by Loomis v. Jefferson County, supra. Ludlow Bay does not qualify as an urban growth area under the GMA. It finally does not qualify as a planned unit development under RCW 36.70A.350. Without such qualification, the 1,800 acres in the MPR is nothing more than urban sprawl barred by the GMA and recognized by JCC 18.15.126(5). Should the proposed Major Revision be adopted, it will violate both the definitional requirements of a master planned resort, the bar on the development of urban level housing outside specifically approved areas, and the concurrency requirement that public services and facilities and resort amenities and housing be built at the same time as the residential expansion. There can be no residential expansion unless it is accompanied by adequate infrastructure.31 Revision is there attention to the requirements in the CC & Rs that the Townhouse Plat be a part ofthe"LMC and the Bay Club. There is little likelihood that the residence owners in the Townhouse Plat would voluntarily move from the LMC to a new facility that does not even provide tennis courts. There is little likelihood that the LMC would voluntarily forego the financial support to which it is entitled from the remainder of the Townhouse Plat. Perhaps DCD Staff should consider the property rights of the owners before providing by fiat for a modification of their ownership rights. 31 Concurrency and the requirement thereof is defined in WAC 365-195-070(3). It provides: "The achievement of concurrency should be sought with respect to public facilities in addition to transportation facilities. The list of such 17 LOG ITEFv1 '3 t5<J J ~ .<:1~ Here, two core agencies, police and fire, have confirmed that such infrastructure is absent. Should Jefferson County approve the proposed Major Revision, it will certainly be challenged and a remedy of a moratorium on further residential construction in the MPR sought until a resort adequate to meet the requirements of the enabling legislation is provided. In summary, DCD Staff misses the point of the Resort Plan modification process. It is not designed to vitiate the resort. Rather, consistent with language in the Development Agreement, it is designed to substitute one amenity for another where changes in circumstances justify same. It does not permit a reduction in scope from the Resort Plan to the scope of the resort prior to the adoption of the Resort Plan. If the resort would not have qualified as a master planned resort under the enabling legislation in 1998, it does not qualify today. If it does not qualify, then PLA is not permitted to expand the number of residences. While some reduction might be contemplated, elimination of the resort expansion is not. That is what is proposed in the Major Revision. D. The Road and Infrastructure. The roadway system, particularly the access to the Inn across the berm and Heron Rd. are substandard. The fire marshal opined that the fire department could not access the Inn without a two lane road access. Neither the roadway across the berm nor Heron Rd. meet this requirement. When these access roadways were planned, the legal roadway requirement was sixty (60) feet. PLA's predecessor sought and was granted a variance to construct thirty two (32) foot wide roadways.32 The problem is that the roadway system, both over the berm and Heron Rd. are not thirty two (32) feet wide, a minimal width for a two lane access road. Rather, the berm road is less than twenty feet wide and Heron Rd., including the concrete apron on only one, not two as claimed by DCD Staff, side of the road is only about twenty two feet wide at its narrow waste. Further, and in violation of legal requirements, the roadways contain no dedicated pedestrian access. The boardwalk provides partial access; however, there is no like access along Heron Rd. A two (2) foot wide concrete apron at the same height as the roadway is not a protective pedestrian walkway. The unsafe and illegal condition of the roadway has been set forth in an engineering report attached to this author's initial comments to the DSEIS.33 Thus, the roadway remains too narrow to permit fire additional facilities should be locally defined. The department recommends that at least domestic water systems and sanitary sewer systems be added to concurrency lists applicable within urban growth areas, and that at least domestic water systems be added for lands outside urban growth areas. Concurrency describes the situation in which adequate facilities are available when the impacts of development occur, or within a specified time thereafter. With respect to facilities other than transportation facilities and water systems, local jurisdictions may fashion their own regulatory responses and are not limited to imposing moratoria on development during periods when concurrency is not maintained." Where a master planned resort is involved, the resort is obviously part of the concurrency analysis. The same is true of police and fire protection and health and social services as confirmed by JCC 18.15.126. 32 The variance was granted under BoCC File No. LP-02-91. In addition, Mr. Berteig held that the proposed roadway system be constructed in accordance with the standards of Jefferson County Department of Public Works on May 10, 1993. The further requirement that there be a one hundred (100) foot diameter cuI de sac was apparently waived. The requirement is "in accordance with the standards..." I ask that files of the BoCC, DCD and the Department of Public Works that address these decisions as well as Mr. Berteig's opinion cited herein be included in the log for the proposed Major Revision. 33 See Log Item 184, Exhibit B. i rT~':"'~'.il 18 38CJ "li_~.,!~. equipment access from either side and remains out of compliance with Jefferson County's requirements for roadways. The proposed Major Revision not only fails to cure this problem but compounds it as will be seen in the next paragraph. Not only is the roadway system too narrow to meet County requirements but the residential construction in buildings 400 and 700 violates the roadway setback applicable thereto. The townhouses are single family attached dwellings. They are not as suggested by DCD Staff "multifamily". Moreover, the proposal ofPLA's predecessor for the approval of the Townhouse Plat contained in SDP 91-017 describes the townhouses as fifty three (53) single family attached dwellings in fourteen (14) multi-unit structures. It is absolutely clear that no one in 1993 thought that the townhouses were multifamily. They are identified as single family attached in the MPR Zoning Code and by reference in the Development Agreement. There can be no serious argument that they are anything other than single family attached subject to a roadway setback requirement of twenty (20) feet.34 That requirement is a condition to the building permits. Compliance therewith was confirmed by the building inspectors, falsely.35 It is not conflicted by the preliminary plans that identify the area now occupied by garages in building 700 as driveways. 36 According to DCD Staff, the setback from this author's residence in building 700 to the roadway is in fact only thirty two (32) inches. As this author has repeatedly said the setback is a legal requirement, it has safety implications, it has been violated, and Jefferson County must condition further development along Heron Rd. to PLA's agreement to move the roadwaJs to permit the setback.37 This is not a mistake was made and now the owner must live with it. 8 It is a safety issue. It affects the ability of emergency vehicles to access the townhouses and the Inn. 34 MPR Code Sec. 3.103(3); 3.105; Table MPR-SF; 3.405, second sentence. 35 See attached building permit for building 700. 36 See Attached Preliminary Plan for Building 700. 37 For example, in August, 2004, this author exchanged email correspondence with Mr. Fischbach, the Jefferson County Executive in which he demanded and Mr. Fischbach refused to order the movement of the roadway and assistance in compliance for the twelve purchasers of units in buildings 400, 700 and 800 with an exemption from SMA compliance for single family residential structures. Request is hereby made for the incorporation of such correspondence into the log. 38 This proposition was advanced by Ms. Lumsden in a hearing before the Hearing Examiner on Olympic Terrace II. The notion that DCD has properly permitted and granted certificates of occupancy on building 400 and 700 was advanced by Mr. Scalf at the same hearing. In response, I asked for a copy of the preliminary plans that showed they had been approved consistent with the substandard setback and that the instructions to the building" inspectors to approve same over the language of the building permit was justified. The plans I received, as indicated showed the garages as driveways, a use that would have met the legal roadway setback requirements. While this author admits that the garages enhance the property, this author and other buyers also paid extra for same. That extra cost more than justifies moving the road to make the garages legal. Neither PLA nor its captive realtor ever disclosed to this author or anyone else that the garages violated a roadway setback. It represented the property as compliant with law. This was false. The actions ofDCD's building inspectors in confirming the buildings compliant with building permit conditions aided PLA therein. .:~.;'. I 0(~ ,'Tl::l\A -... --- " ! C!\ff 19 ~e7_,__ _2. D..<fZ. The proposed Major Revision and DCD Staff s response compounds the problem. By changing ownership and structure from townhouses to stacked condominiums, PLA obviously hopes to eliminate the roadway setback requirement that would otherwise interfere with its plan to locate building 600 across Heron Rd. from building 700 without the required twenty (20) foot roadway setback. In fact the plan does not provide for a twenty (20) foot setback with respect to any of the proposed stacked condominiums. This would legally follow because stacked condominiums are multifamily under the MPR Code and not subject to such setback. Consider that this is one of the reasons why the fifty three (53) townhouse lots were platted single family attached. Such a plat required an adequate roadway setback that PLA and DCD Staff now seek to avoid. The UBC is unrelated to the setback issue. The setback contained therein relates to fire prevention; not to roadway safety. Currently, the Townhouse Plat and its CC & Rs, if respected by Jefferson County protect against the elimination of the roadway setback. PLA' s plan, with DCD Staff s approval to eliminate the roadway setback by a lot line adjustment additionally shows that other purposes are served by the boundary line adjustment than consolidating lots.39 Since Heron Rd. and the roadway over the berm are substandard to the variance, PLA should not be permitted to continue the violation of roadway setbacks on existing units and should be required to provide for twenty (20) foot roadway setbacks as to subsequent units. The townhouse units were constructed with a requirement of one and one half parking spaces per unit. This requirement has been violated by both building 400 and 700. Only four of the ten units meet this requirement. Should PLA be permitted the Major Revision, unofficial parking would be eliminated that permits adequate parking for the subject townhouse units across Heron Rd. The parking that PLA constructed at the north end of building 700 is actually not on PLA's property but on property belonging to the south unit of building 800. It is not legal parking dedicated to the specific units as required. Finally, ifPLA is permitted the Major Revision, its proposal to provide extra parking above and north of Heron Rd. is inadequate. Such parking is not dedicated to the specific units as required. Keep in mind, the townhouses are not condominiums. Parking is not shared. It is dedicated. In addition, and more important, loading and unloading will occur in front of the buildings. In the case of building 700 and 600 such loading and unloading would block emergency vehicles. Heron Rd. is not wide enough to accommodate such use. There is no practical way for guests to load and unload as far away as north of the present Harbormaster Restaurant and transport their goods to the various dwellings in the structures along Heron Rd. For safety reasons, the proposed Major Revision must be rejected to the extent it does not cure the roadway setbacks along Heron Rd. and prevent further roadway setback violations or avoidance thereof by reclassification of the dwellings in a different form of ownership that qualifies to the looser standard of multifamily. Finally, I add that reclassifying Heron Rd. as private does not solve Jefferson County's problems. Heron Rd. is fraught with problems. Jefferson County has an engineering report detailing same. It now seeks to compound such safety problems at the instance of PLA. What it fails to note is the relationship between those problems and the requirements of the GMA and the enabling legislation for master planned resorts that there be adequate infrastructure, that is public services and facilities and that these be integrated and self contained. If the proposed Major Revision brings the subject 1,800 acres outside the ambit of a master planned resort, the area will be out of compliance with the GMA. It will be for Jefferson County to pay the cost of bringing 39 See RCW 58.17.040(6). 20 3eL-_., _._~ otYZ.... the area into compliance. Compliance will require legal roadways and legal setbacks. This will not be met by the historic "get to yes" attitude of Jefferson County toward development proposed by Pope Resources. It will be required to assure compliance. How will it do so when it is now on notice of noncompliance and it supports a build out that interferes with such compliance in the future? Are we to assume that the "stacked condominiums" must be tom down to give adequate road width? Now that width could be provided. Permitting more violations and failing to correct existing ones will compoWld the problem and make it much more costly to cure. E. Conclusions. For reasons set forth herein and in my prior submissions with respect to the application and to the DSEIS, the proposed Major Revision and its associated permit applications should not be approved. The DCD Staff Report should be rejected and the matter remanded to DCD Staff for adequate treatment of the issues raised hereby. I respectfully request that I be included as a party with appeal rights and notice rights as a result of filing this statement. I adopt by reference all prior statements to the draft SEIS, the pennit and other applications addressed by the staff report. ;;;A"~~ . Leslie A. Powers, Resident cc; Michelle Farfan 21 #~,~,'....':;.- 3ai .'- 1'Z..- of ..< '2 --""...,....~_... .., '}7/2eB5 14: 19 3603794451 JEFF CO DeD ../" ECTION 16. TWN. 28 N., RGE. 1 E.. W.M. tROVED HlW1AN ;.. .' . ,. " ... "PoJTr . - WD V, Rccoo.... tow Ol.J.J~.,:.1.U 0.... a,.. A ."<<::' 0 r su C-sC}.j flE:cORc::._SlJ~;;Y p-~ CLlJEJ- """11'6 "b EY ~ p IN . a1~""':"~%c 6'- -......qj 0 v. 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Page 2.~ .of i2- . . ' ..l'l ~ i$: 4 - . O' ...,. STAn Of wASHINCTON DEPARTMENT ,OF ECOLOGY IX) Boll 47115 . ~. Wouh~,", ,U04-777S. f"91447-Uoo October 2S. 2004 Mr. AI Scalf. Oirc:ctot" ~Mbnent of Community Development Jcffemon County . 621 Sheridan Strtet POll Townsend. W A 98368 Subject: Port Ludlow Lagoon De:at Mr. Scalf: l1w1t. 1"u rot YOW' patience as we have all worlcc:d toWlQ\'b clarification on the issue of the Shoreline jurisdictiooal :Nt.lu-s uf lite lagoon 1oc:ated in 1"0J1 Ludlow Village (port Ludlow ". -Ligooti)-:-nppreciidiilli<i lilil(;-jOUliiY~rtikqj,-t<)WOlkwiQfus:-'Ourmceting:;'andthe--- -- -. mcding:. wilh olhcn in your c:onum:mity~ has helped US put this ismo into ~vc. It is out upiuiuu. UJ3.t the Port Ludlow Lagoon'is c;;ovend by the provisions of the: Shoreline Managemcnr Act (SMA. Chapter 9O.S8 RCW) and the JetftnoD Co\Inty Shoreline Management Master Program (SMMP). incl~ the pNhibition on OY\';l'-wtlLQ" ce:si&:nlial construction (SMMP. 5.160). The ~ promise of our upiu.i.ou is that the Pon Ludlow Lagoon is within 200 fcc:t of1he ordinary high WIIet tn.lI.tk (OHWM) of Ludlow Bay. a Sbore1ine aCthe State. The SlIcngth of our conviction, howcYct. is based OQ. a broader set of facts. Jb'ckcrouad '"Shotclint:$" ar~ defined a&' -".u ofthc water .ea:s of1be$b.tc; including l'e~; Jnd UlCir a.s:s.ociatcd shorc1ands. to~c.thccwitb the lands underlying thml; el[c:;ept (i)'ahoretincs of statewide significance; (ii) sbordincs on segments of $ltCams upstream of a point wbqc dx: IlIQlI 8I"'ua.I now is. twenty cubic feet pd" sccood or less and. the wetlands aSsociated with such u.pstream. $Cgm.ents~ and (iii) shorelines on lakes less than twenty acres in site and ~etlands II$SOciatcd with sut:h smaI11akes." (RCW 9O.5S.030(d)) "Shorelands" or "shorcland areM" are defmed as - "Ih~ ianeb extending landward for two ~ fe~ in all directions a$. measured on a horizontal plane from the on1inary high water ma,(k; fioodwap and contiguous floodp Lain are2S landward cwo hundred feet from LOG ITEM #: J8.1 _..~-t~~. Page__ 2S:-.of_.1b ..;<1, f,~~ MI. AI Scalf Odobcr 25, 2004 Pqe2 -::::::::- such fioodways; and all w~tl:mds and river deltaS associated with the streams. lakes, and tidal waters which are subjl,,;\;t to the provision~ uf this chapter; fhc 5m1C to ~ designated ilS to location by the depart~(''1l1 of ecology:' (RCW 90.S8.01(J(Q) The Port Ludlow ugoon is OJ "water oCtile state" under Chapter 90.'18 RCW (Warer Pollution Control Ad). "Waters onlle State" are defined as - "'lakes. rivers, ponds, streams, inland W8.!ct'S~ undergrouud wlllcrs. salt watCl'S and all other sUlfacc Waten and watercourses within the jurisdiction oCthc stale of Washington:' (RCW 90.48.020) The policy of tile SMA Slates, in part - "It illi the policy of the slate to provide for the matt.a&-emc:nt ot'the shorclin<:s oflbe state by pbnnil.'lg for and fostering aU reasonable and appropriate uscs. This policy is d~ignc:d to insure the dcvelopmca( oftbcse shoreljnes in a mener which. while allowlrlg for limited reduction ufrigbts of the public in the navigable ''Nala1s, win promote and enhance the public interest. This policy conJ:emplates prot~ against advCTSc effects tu the public beahh, the land and its vegelation and wildlife. and the waters or the ,blc and their aqualic life, while protecting generally puhlic tights of navigation and c<mJlbvy cighlS incidenlalthc:reto." (RCW W.58.020, emphasi5 added) RCW 90.58.020 states further - "Alterations of the natum! condition of the shorelioes and shoreland& of the ~te shaJJ be n::cognizc:d by &be: dcpanmanL Shorelines and sboreWlds of the state, shall be O1PPl'OpriateJy l;las&ified and these classifications shall be rcvised. when ClrCWl1.!.tRlCCS wanant rega.nJJess ofwhethc.r lhe change in cicc'UD\5tanCes ~!llS ~ggb, __' __. .____ -"m~Fm-4dcca1BC$'otriatiirarcauses~-Aiiymasrcsuitlng1"rom-aIiCcanons-of the natural . condition of the sl.orelines and shorclands ~r the: lilato no longer meeting the definition of "shorelines of tho state" sban oot be subjCGt to the: provisions of chaptet 90.58 RCW:' WAC 173~22...()52 AlteratiOD5 of shurclmes .n'eaing desigt&.tioa~ states - .. Altcntions of the existing conditions of shorelines and wctlll.nds of the state w1U<:h affect the boundary or volume of1hou water. oodles. whether through authorized development or natural caU&e$, sball warrant a review of the designation ofmosc shore1incs, and their associated wetlands_" This letter is a. rcspoO$(: from that review of (his wa1crbody. R CW 90.51.900 s;tll1es - ""h~s chaptcc i.s exe.ed [CUlU the rule of strict construction, and it shall be liberally construed tu give !\lIt ell'ect tu the objectives and purposes for which it was enacted.'. In simple terms, this meaus tlNt in areas of unct:ttainty we must give deference to the protection 'of the t'C5OUCce. The Jefferson County SMP states in S .160. Rcsitlenti al DevelopcuC':Dl, Prohibitod Uses and. Activities - ''Re&idcntial StruCllU'C$ 10000ed On ur uver marshes, bogs, swamps. lagoons, tid6bnds, ecologicallyacositivc: areas or water areas subject to this Master Program." DISCI1S3iOD .? LOG ITEM # 6~4 _ Page,. . 1-&; of~ ~. At Scalf 25,2004 3 \ '. jurisdictio~l determination. 1'lK:se i:>:sues iDcludo tho artificial natUre of 1he 1a&oon. t.l)C limited va.lue of the t~oon as habitat, and lhe continued alteration of th(l oha.raoter oC Ihe lagoon. There is a cbim that tbe lagoon is an artificW feature, a butds<;.pc amenity, tather than a natunl W"",-lr:r body. TllCtO ~ 00 distin<;tion in the SMA fot excluding artificial watc:t bodies from Shoreline jurisdiction. The definition or "shorelines" specifically inclQdc.s rc;;savo~. clcady indicalill! that 3l1:i~ially constrUcted bodies of WillIOJ' uc; ~'VCtCld undq the SMA. The c:xclusion of atrificiaIly created wetlands (90.58.03O(h)) does not apply ill this case. fUss, the ~clu$ion is limited to artificial wetlands ~a.tcd from nOl1Wet1md arc:as. Historie maps and pho1lDsnpbs QfPort Ludlow show the progr'CS$1011 of development of this ::&ml that inclmbl the diking and filling of the upper tidal pottion of tlle ba.y to create the land area that now inc lodes the Port Ludlow Lagoon. l11e lagoon was not created ti'om & 1l00000Ctland site. Second, the lagoon dOQ DOt meet the statutory dcfwliuQ ura ..wct1and.... While rh<<e arc areas around the Jiingc of the la.goon ihaz conwo wetland vegetation. have wetland soils, and enough water to be ~ ~.. the bgooa iuelfdocs not mcd the three--~test for jlll'i.s:diaional wet~ (see WAC 173-n-080, Wdland Delia.eatiou MI1\WI1). The lagoon fUuctions mono; like a subtidal marine ~cm because of tho watq dc:pth and pcnnlUlCDt inlUSddion (Cowardin. 1919. Classification ofW~ and DeqJwaret Hab\tals ofthc: Uuitcd States). Finally, the exclusion of a water body as ;II, wetland doa not mean the area UI DOt a Watc;r of rhe alate (WAC 173- 21A-()20). no W~'~~~~-~-f;C(-fhat thClagoonandthe iUl:w:ir~iOn iflaiOriginallYlW.:coiliC---"-"'- lagoo1l area witb Port Ludlow Day have been repcatcd1y allcrcd over time:. lIowcver, this altcntion does not eliminate the site from Shoreline jurisdiction. We arc dircctc:d to l'CiCOp'lizo altaations to the lIhoreline; e.g., if authorized fiU dlanges the OIIWM of a 5horcfmc: or eliminates an associated wetland 6:om jurUdiction, then thoae changes an: rtlficclc:d W futufC SMA decisions. That recognition al$O rncms tIu5l ifSMAjurisdiction is expanded e.g., through the n:moval of historic fill along a ~linc.. then the OHWM gets . pulled back to recognize the "'nc;w" shoreline boundary. Partial fill in at) associated wctbmd would nol result in the: cntixc wetb.nd being eliminated from SMA jurisdiction,. only in the rcc:oplition thallhc boundary of SMA jurisdiction has changed. It ill O\U opinion that the Port Ludlow .Lagoon falls within the: :scope of the prohibition in the Jefferson COUtU)' SMMP for over-wala residential conslI'llCtion (S.I60). Specifically, '''Residential Suuctur" located 00 or ovec marshe4. bogs. swamps, lagoons, ti~llIndsJ CXlOlogiulty sc:usitiV(; areas or water areas subject to this Master Program," Whik this body ofwatcr may nol be . marsh, bog. or swamp (i.e., a wetland), it is ccrtmdy a lagoon; whicb W ~bstet"s Dictionary deflrtes a5 - .< A shallow body of watc:t, esp. one ~ from the; sea by sandblllll or coral roofs." Two culvetU maintain 1\ GOnDcction bc:tw(;C:ft the tagwn and Port Ludlow Bay; one <:U1vert bas oil full()tionhig tide gate, 'lh~ othcc i3 In opeln pipe with :. bottom c1evati.on located approximately 0.10 above melUl bigba high Wale{ (MHHW). A strong C,",,,, could probably be made: fOf tho lagOOn ItS l\ liucllllld bc:Ica&1SC 0.10 feet above MlIlIW would still get fairly frequent tidal inundation. Fina1.1y, the lagoon is a. L.. 0' 1"':;- 11'." "7. 1'\J1 ".. ilLI. . #_-~-.- PP"lt,::; -?., ff""'f ~.~ ~ . . Jt..~....~"',,.._~~'')'i ~ ~...........""'-"'. /~><.. '. .. Mr. AISoIf October 25,2004 Pagt:4 ''water atea" within SMA jurisd~tion and.. therefore, subject to the Jefferson County SMMP. CODdtiloas While nol fiuinS neatly into readily available definitions. rhc b&oou is ~llly . budyof water within SMA jurisdIction. RCW 90.58.900 directs Ecology to intetpTet the SMA liberally to CO$\m; Ml protection of shwc::Jine resources. This requires it Olorc inclusive intc:lptdatioR of the probibition. ratllCC than a. InOI'C rC$triclcd interpretation. The limi~ or dcgadod; value of the: lagoon. as fml and wildlife lusbitat may meaD thai it should not ~ c.onsidctcd as an "ccologically sensitive ~" but it ii sriU alagooo. and il is stilt a water area.. Th(;'('e arc no qualitative limitations 00 chose; phnsc:s. The Port Ludlow Lagoon i$" waf.c::t oethe state. and it is in SMA jurisdiction., The dcpmtmcut of &olo,;y dC<lS not believe &bat ovcr~water. teSidcntial construction is an llnowed use: u,.Icr the Jctrc:rsou County SMMP. We do believe, howcvcr. that the{e ace soluti0D5 to this situation. We would be very willing. tu ~~uatf: any pIOjCl;t alternatives that may be pruposed by tbt.: Port Ludlow Association. I hope this leU<< brings.some c::l.uity to this issue. Again, I app<<ciau: the time and effoR put forth by you and others at Jcffeaon Counlylu resOlve this question. Please feel ftee to . ..dd. ._. .... __ _____~~!~! our !!:-.~ce at ant time as this isslle f\lOVQ forwani. I can be reached at 360~ 407..Q271. Jcffice Stewart, oUiShOrcu.ne.SpeciafGt:;-j60=4ijj=6S21~orPerry LuRd at- -- --- ----..-.... 36Q...407..7260. Sincerely, .~~ Paula Ehlqs Section M3I138t:f Shorclands &:. Environmental A$st;SCanc;c Program FE:PJL:dn copy: Mact;o de Sa c: Silv.... Oavi$ Wright Tremaine Carol Saber. Port Ludlow Village Council Lu. Hofftnan, Ecology LOG ITEM -H ~ l~~.__ . 5.7 _ if"''''.., , .... ~C'~ge~L at.~ 2... ~. .p /// ;/ .,,// /,.1" MICHAEL D. BRASFIELD JEFFERSON COUNTY SHERIFF 81 Elkins Road. Port Hadlock, Washington 98339. (360) 385-3831 February 9, 2005 " ! Ms. Michelle Farfan Jefferson County Project Planner Department of Community Development 621 Sheridan Street Port Townsend, W A 98368 FED 1 1 !J05 Dear Ms. Farfan, We have received the documents related to SUB05-00003, the Olympic Terrace II Long Plat - 80 lots. The proposed development win have a significant impact on the resources of the Sheriff's Office. Based on existing staff'mg and calls for service within the county, the establishment of this project will add workload to the Sheriff's Office beyond that which it is able to handle now. There will be a degradation of response time and preventive patrol in other parts of the county. Given the steady incremental increase in population and residences within unincorporated Jefferson County that have not been addressed through additional resources being provided to the Sheriff's Office, mitigation should be required that would add those resources to the Sheriff's Office. The general rule of thumb for jurisdictions in our general population range is to have I uniformed patrol officer/deputy for eas;h 1,000 residents. This equates to approximately $100,000 in salary, benefits and equipment. There has not been an increase in uniformed patrol staffing for several years. Your own records will reflect the increase in county population. Sincerely, /' 1?~''V-~L ~ q<P<'.0C<Z-;() _.. Michael D. Brasfield Jefferson County Sheriff * LOG ITEM f( _ ""?Bi P. P'll......"" !'l ~ nf ~. ') (,""""'", P vi--rc.-. ...A~'4.i". .. <__ _.--. # fL7 Page of----L- PERMIT #: SITE ADDRESS: BUILDING PERMIT Jefferson County Department of Community DevelOpment 621 Sheridan Street, Port Townsend, WA 98368 (360)379-4450 FAX (360)379-4451 BLD02-00546 Received Date 09117/2002 38 HERON RD Issue Date 10/2512002 PORT LUDLOW, 98365 PORT LUDLOW ASSOCIATES LLC PHONE: (360)437-2101 70 BREAKER LN PORT LUDLOW WA 98365-9766 APPLICANT: SUBDIVISION: PARCEL NUMBER: LUDLOW BAY VILLAGE Block: 968600039 Section: 16 Township: 28 N Range: Lot: TH-2 01 E CONTRACTOR: PORT LUDLOW ASSOCIATES 70 BREAKER LN PORT LUDlWO WA 98365 PHONE: (360)437-2101 Contractors license: PORTlAl994l8 Expires: 05/0212004 LOAN LENDER! BOND HOLDER: PROJECT DESCRIPTION 5 TOWNHOMES REQlHREO INSPECTIONS: II SETBACKS I Footings: ~""g.: ;y"""'! ( ] Foundation:~,( z/ZljIJ3 ~ [ ] Underground Plumbing/Underground Insutation: ( 1 [ ] ShearWaU: ~ ,o/faJ ~~XT:> Ia.Q fM.u ,~~....b)AU. D.-w-)og 7/1BfY'i/I Frami~mbing) LIt4I1~ (J((. ej-f/n IV r~At-\'..x.: Q.( 8/lCl(J5;#1 ( J ( ] [ J ( 1 ( 1 [ ] Propane TankILines: ~aJl!" t,~ 6K cf'4'n 1/ Insulation, =~f Sheetrock -: - n .. ~ . jV tJI{ 9,0/43 t!IL Septic System Anal Approval: Zoning final Approval; FinaVOccupancy Approval: ~ If. z5 'Q"3 HEALTH DEPARTMENT APPROVAL IRE RIOR TO FINAL INSPECTION THIS PERMIT IS VAUO FOR ONE YEAR OR IT MUST BE PROPERLY RENEWED BUILDING INSPECTION HOT~L1NE 379-4455. CALL 24 HOURS IN ADVANCE TO SCHEDULE INSPECTIONS. Office Hours 9:00 am. - 4:30 p.m. SPECIAL CONDITIONS APPLY - SEE REVERSE HOT LINE AVAIlABLE 24 HOURS A DAY LOG iTErVl -Ie.f, '3 ~ &i 'ror V I ,_2.~of -<-'?- SPECIAL CONDITIONS FOR CASE BlD02-00546 1.) The application was reviewed by the Jefferson County Department of Community Development staff on September 25. 2002 for the potential presence of Criticat Areas (CAs) under the provisions of the Jefferson County Interim Criticat Areas Ordinance (JCICAO). After an initial Geographic Information Systems mapping review and an investigative site inspection, the following CAs were confirmed to be present on the subject property: Susceptible Aquifer Recharge Area; Flood Zone k. Seismic Hazard; Osprey Nest; and Type 1 Marine Shofetine Waters. 2.) Susceptible Aquifer Recharge Areas are those with geologic and hydrOlogic conditions that promote rapid infiltration of recharge waters to groundwater aquifers. 3.) Aquifer Recharge Areas in Jefferson County are characterized by porous geological formations that allow percolation of the surface water into the soils and the underlying zone of saturation. Aquifers are geologic formations that contain sufficient saturated permeable material to yield significant quantities of water to wells and springs. Aquifers serve as the souroe of drin~ water within most of the rural portions of Jefferson County. 4.) A Final Environmentat Impact Statement was issued by Jefferson County in March 1993 for the Ludlow Bay Village Development (formerly known as THE INN AT PORT LUDLOW) A mitigation measure in the FEIS requires "The towest floor of aft buildings would be elevated one foot above the base flood elevation. Further requirements for materials and methods of construction from the County's Flood Plain Management Ordinance would also be followed." 5.) A Final Environmental Impact Statement was issued by Jefferson County in March 1993 for the Ludlow Bay Village Development (formerly known as THE INN AT PORT lUDLOW). A mitigation measure in the FEIS states, "Proposed structures would be designed, engineered 8M constructed in conformance with local building codes and current safety standards for Iandstide and seismic hazard protection. Further structural support or ground modification would be employed if the final geotechnical assessment identifies significant landslide and/or seismic hazard." 6.) A Final Environmental Impact Statement was issued by Jefferson County in March 1993 for the Ludlow Bay Village Development (formerly known as THE INN AT PORT LUDLOW). A mitigation measure in the FEIS states "Drainage lines would be installed behind retaininglbasement waifs and around building footings to prevent buildup of hydrostatic pressures and to intercept groundwater." 7.) A Final Environmental Impact Statement was issued by Jefferson County in March 1993 for the Port Ludlow Bay V~lage Development (formerly known as THE INN AT PORT LUDLOW). A mitigation measure in the FEIS states "Interpretative signs would be installed to describe important habitat features and wildlife characteristics on the site. Pamphlets and brochures would be distributed to residents and guests to increase awareness and respect for wildlife." 6.) The bUilding height shall not exceed 35 feet. 9.) Minimum setback from Heron Road right-of-way shaH be 20 feet Minimum setback from OHWM shan be 30 feet as depicted on the face of the final plat 10.) This approval is for 5 townhouses only. Any future permits on this site are subject to review for consistency Y!,ith applicable codes and ordinances and does n9t preclude review and conditions which may be placed on future permits. 11.) The site plan as submitted with the building permit application on September 17. 2002 has been reviewed for consistency under the UDC. and has been approved by Jefferson County Department of Community Development. Any modificationS, changes, and/or additions to the stamped. approved site plan dated October 25. 2002 shall be resubmitted for review and approval by Jefferson County Department of Community Development 12.) The paroels were created on June 6, 1994 through the Ludlow Bay Village subdivision as recorded under AFN 372517. 13.) Access is provided via Heron Road a private road (P405). 14.) The plat was reviewed for maximum stormwater buildout in 1994. 15.) The project shall adhere to the Best Management Practices (BMPs) to control stormwater, erosion and sediment during construction. BMPs shall address permanent measures to stabilize soil exposed during con$truction, and in the design and operation of stormwater and drainage control systems. t\F _BlD_Permit.-Buildng.rpt +f 'n~ Ppf':' r:::. Iil ",'f,.Z) .~,,,..f, ~,..>.\ '~"J..__. M ...... . ...,-_.... . -~ .;" . '- , /4 6 +'~ JEFFERSON COUNTY / SHOREUNE SUBSTANTIAl D~VElOPMENT PERMIT WASHINGTON STATE SHOREUNE MANAGEMENT ACT {RCW 90.58t PERHlttE~: Pope Resources DATE ISSOE'O: Hay 11', 1993 TYPE OF ACTION: General 'rYPE OF U~E: Praary I Secondary, Conditional CASE NUHBER: SDP91...011 APPLICATION DATE: August, 7, 1991. -PROPOSAL: A residential, c01tlJ1\ercial, and recreational development consisting- of the followin(}: .. A 36-roOlll hote.1.; * 5 detached single family residences a~d 53 attache.d single ta1Uily resid~ces in 14 aulti-unit structures; , . ::=::::> ... Roadiotays and 367 parking spaces; * Utilities. including water, electrical. power. and sanitary saver; ... 500 ~ie yards ot rip ra.p shore defense vorks; ~* Marina. modifications including a nav lDan;a.qer's buildin<<11 ne~ ~estroo1llS and 1aundry, new fuel and. pr(;)pane tanks 1ocated. betveen tho. marina and the pond, and remova.l,of an existing bQat l.aUI'!cb.; n\l* Landscaping and recreational ueni,.ties inclttdinq construction of . vegetated-artificial dunes on t;he'souther1y-portion-of .t1:u!_spit, ___ trails and 'a pedestrian bridge, ou!;door sport eo~, and expansion of tha existing pond; . . ~ Approximately 45,000 cubic yards of e.,xcavation,. grading and fi1.1in9 inc1udinq 25,000 cubic yards for pond expansion; . * Te1D.poraq and permanent. soil erosion control 'and stOrl'll water mana9eDlent systelll; · Directional and informational signs; .. Outdoor 'lighting; and, I l ~* 1.0. 5 aqre.s of undeveloped open space. The Inn 'Would be a . three-story, WQod frame structure that would include a managar's'..x'esidence. Its maximum height would be 52 feet. It would have a foot print of 11,345 square feet and total sqUare footage of 34'; 1.71 square feet. Its design would .1ncluda the following fire and. li:1'e safety features: quick-response sprink~e.r heads; auto.a.tic alaxm notice to Fire. District #3; tulper protection for the A1,;ttomatio sprink1er systeJI; hose cabinets at each floor; Cliesel generator back-up power SO\1X'ce: an' indicator panel. ~or all. bui1ding safety syst$ms; S'Doke detection on HVAC systems; a stairvell to the roof; and a wet-sprink1er in the covered drive-through. The. propo.nent also roposes plann ~taff t.J:"aining in orde:r 0 e rap~d, r~spo em e1\cies. -. ..,;.t, ",""i~' LOG'iTEI\tl 3 ~t7 ~ . ~"7 "",.r.' ~ . v "-,,i'O ......,.. ~- P ('\ 'H' n '.J ',1 l. J ) ,,' " ~.....'..'.'...'.;! ^,_:~- .5J'X/Y .. .. l" Shoreline. Subst:an~ial Develop1lle.n1; Pend1: SOP91.-017 Pope Re$ources The existing Jlan-made pond covering 1. 4- a.c~es would be enlarged to 2..2 acres. A pwap would aupply with vater from Ludlow Bay in order to ~lntain a constant sali~ity. A nev 800 square.. foot. .arma Illanager's office would be constructed wdd1!'ay betveen the existing ot"fice and the Inn site.. The exist.~ offl.ce "ould be dtmali$hed and re'p1ace4 with new restro01.lls and . la.undry facilities on th~ sue site. The ~iBtill9 underground fuel and propane. tanks. wouLd. be r~oved and new 'tanl<:s would be located adjacent to the manager's off'ica in a contai~ent bunker. . Exterior ligbtinq fiXtures would employ hoods, shades, or other techniques to dixeet UlUlllination onto the 1m.mediate area where it is needed. Li.qht standards in parkinC] areas WQuld. no't. exceed 1.0 ~ fe.et in height. Liqht fixtures along pedestrian. walkways would not . exceed 4- 1:eet in height. 110 eol-orad lights 'liould be use.d except. for boliday oeeas.ions.. . ..' utilities llou~d be installed underground.- LEGAL DESCIUPTION: . ~e proposal si~e comprises 17.5 acres' adjacent to th~ existing Jlarina and resort at Port ,Ludlow and is des.eribed as portions of Govermaent Lots 1 and 2 in Section 1:6, Township 28 North. Rang-e 1. East, W..H.. WATERBODY AND/OR ASSOCIATED WETLANDS: Port Ludlow Bay t- $HORELINE OF STATE-WIOE SIGNIFICANCE: No SHORELINE DESIGNATION: urban CONDITIONS: Development pursuant. 'to this pentit. shall be undertaken subjeot to the appliCable. policies and performance ~tandards .of the .1etfe.rson-Port Townsend Shoreline Kanagelle.nt: Kaster Program and. the follow~ conditions.: . 1. A detai1ed arosion and sedimentation control plan u~inq the best management practices set forth in the Wasbington Dep~ent of '2co104n''s StOt'1n Wat~ Manual., for; the PuJ:ret:. Sound Basin shal.1. be prepared. in conjunction wi.th ~inaJ. si't:.a desi.gn and a construction phasing- se:hedllle. Grading on tlle project site ahul not be<Jin until the erosion conb:-01 plan ha.s been approved by the Director of the Jefferson county Department of Pt.1bJ.ic 'Works or his designee. 'l'tl-e Qbje.ctiv61S of said p1an are to (a) control aust and mud and stal)il.ize the construction area ineludinq entrances and roadways; (b) prevent surface .2 . ,..,. '" IT~-l' n LVl::t Cl'Vl . 3~'7 "'-"..'~_:23__ __tr or -,r){'A ....!L.t. _ ~)_'_ Shore1ine SUbstantial Development Perait SOP91-017 . Pope Resources water runof'f fro. eroding- areas to be cleared and 'gra.ded; (e) prevent sedimentation from entering t:he wa.ters of Port Ludlow Bay. Erosion control tecbniques laaY include, but are not. lim.ited to, pi~d' ~lope drains, subsurt'ace d:r<1lins, hydroseeding, 5~a.ce rou~beninq I . intercept.or dikes and bents, check dams,' swales, gradient terraces, rip-rapJ, gravel. filter berms, storm drain inlet. and outlet prot.ection, and tiIter ($i11:) fences. A JlAintenance. progru shall be illlp1Q1ente.d during the course of construction to insure the 'proper and effective functioning' of erosion and sedilnentation control. features. Xnspeotion of eros.ion control features shall be' conducted daily. ' 2. Soil disturbance associat.ed with .a.jar qrading activities shall confora to the guidelines and ~i.aing' restrictions set forth in the Washington state Deparblent of Ecology 5toh1 water lJ'an~gem~nt Manual (current edition). Prior to final plat approval and prior' to any c;learin9 and 9X'adinq on the site., . the proponent shall. subm.it a construction phasing plan to tb:e 3efferson County Public Works ilepartment for revie.w and approval. The. plan shall specify how the proponent proposes to achieve the qoals of this mitigation llleaSure. ~. During construction, to the. exte:nt prac,ticable,. existing vegetation shal~ 'be maintained on those portions of the site ~ J', planned as perlI.anent open space. Only during- "the. course of c;;;::::- - -, _1- u~i.l~ ty *- ~i.l1sta.~lat.1on . - or. _, .J::e.vege.tation/1.andscaping .=-s.ha1.1_~_, dis~bance OCQur. 5. ~..., . ..P~ ,~r' v& 4.. Grading stockpiles shall 'be located on the uphill side of excavation areas to act as runoff diversions. .Any large stockpiles shall be shaped and covered or seeded. Soil., sedblent, wat;er, or debris gene.rated durinq pond enlargement shall be confinea to specific areas on the site as identified on the. ~osion control :plaI1.. Dredged pond JD.aterial and other site materIal unsuitable for project flll shall. be disposed of a.t a location approved. by tbe. Director of the. Jefferson County Department of PQblio. Works.. Following construction, all cleared and graded areas shall be perw.aneAt1y revegetated according to. an overall landscape. ~ plan.. Revegetation shall be completed as soon ~s practicable after grading aml construction is complete. Dunes proposed for the Inn area. shall be stabilized. \ 't;1u:ough L the use of ve.ge.1:a.tion and underlying foundations so--.as to~ ll1.ini:mize sand and soil redistribution during storm events. tt. 3 LOG ITE~v1 '~1 ~r"fi: jZ: :J ~~'<< -.=' . .-..- c< I'" r 1 ~ '" r; \,. ~ J ~ ! ." . . -----., .....--.. ..-.--.....- ..... - - -..-- - ...._...._~ ~..,rJ~ Shoreline Substantial Deve:lopae.nt P$rIlit SOP91-01i "Pope Resources 8. 9. .@ @ @ @ 11.. The proponent sha.ll designate a qualified, trained, and experienced incIividual. or tint. whQ sh~ll. ensure that Ca) erosion control." devices are correctly installed; . (b) inspection and aaintenance schedules are reg\l1arly kept; ee) ~ correct! ve actions are. eaployed in the ~:{/ent; erosion control "-'I lIeaslttes fail to pexo.tora dfective.ly and. (d) reports and inspections are coordinated with tbe Jefferson County Department ot Public Works. A compl.ete geotechnicai investiqation shal.! he undartake.p.. on . slopes steeper than 15% where buildings or infrastructure are proposed. Part.icular attention will be Piiid to possibilities of earthquake-induced subsidence or liquefaetion. structures shall be designed, eng-ine.e.red,..and eonstruetad in eonfonaanC:Q with the uniform BUilding. COde, other adopted standards pertaining to landslida and seis~ic ha2ard protection, and spe.cific construction practices recoJRmended by the ~otechnieal consultant. The consultant shall be a qualified professional selected and. pa.id by the project proponent. No construction of' buildings. or insta.llation of infrastructure . on ~lopes steeper than l.!?% shall take plaee .prior to cOlUpletion of the g-eotechnlcal inves:f;iqatiQn. A permanent'sto01water drainage system shall be installed, the desi.gn and COl)struction of Which shall be to the .satisfaction of the Depai:'br.ent of Public. Works. Syst~ cOlllpon~n.b;. .sha11 :include. grass-lined' swales, oil/water' Geparat.ors I . and a ~~iqJ:t pon~Lj:o manage bOth water quantity and quality. The project's storm."'ater JQanagement . system shall be incorp(lrated into the oJl9'oing Port Ludlow Bay "Water Quality Monitoring Program - Nonpoint Sources". A maintenance prQ9Tu shall :be de.veloped :for oil/water separators and biofilters and approved by the Jefferson county De.paxt::lu.ant of PUblic Works. . Eelgrass (zostra marina) shall be planted in tbe eastern ~ sector of 'the pond to prevent the grolith of sea l.ett:uce "-..-:-- (Vlva). . :14. Durinq construction, \lat~r levels in the on-site pond shall be lowered and se.dilnent re1lloved therefrom prior to the discharge of water into the Bay. . Two pumps shall be installed in the pond for redundanCY in case of ~ailure and to il!lpro1le flexibility for periodic ... L..... ,"~, '1-;r-ll III Vl:; I r:.iVI .._---3 ~~___._ e:~. 'c. ',..~ r i'L r':"~.~.~_:::;,.,,-:.:; -;, ~' ~, .."""""",-~~,> ..-........- (! (. :i II(' r~ OW' . (.... ~ .) ....: -;--._~.'" . .. Shoreline Substanti.l Development:. Perait SDl*91-01.7 Pope ResQurces aaintenance.' A standbY .ohile power qenerator shall be provided in the event of power outages. . <16) <....: 17. 1.8. ..19. ~ The 1Aaintenance .schedule for the pond shall avoid P':D1P shutclown during warmer weather, thereby l~sseniri9' stagnation of water ana re.lated' water quality probleJlls. .. . . Final inf'rastrue'b.n-e desi.gn sball .ini1D:ize iJIl.pervious cover' and s1:orll1vater runoff through the use of gravel ,surfaces as pens.itted. by the Departaent of Public Works'. Drainage line.s shall be installed behind re.taining ;t!),nd/or ') basement walls, and around l?ui1.ding footings to prevent: build- -< up of hydros~tic pressure and to int:.ercept ground and surface water. . Groundwater seepage encountered during construction in 'upland' areas $.hall be directed by sloping excavations to shallow SUJltp pits. Any collected water shall be dischar9'ed to 'the. const:.1:11ction-phase stonnwater control sys.tent. 20. Portions of structures SUbject to periodic tida.l inundation shall be sited and constructed in'co.plianee w1th Jefferson County's "Flood Plain Management Ordinance'No. J.-89." ~ Landscape design and planting :mat~ials for the periaeter of --V ...the'lK'nd 'shall JdnhlizQ the need for"herbiciCleapplication..-.-..- Native plant lDaterials shall ).)e utilized to the maxhtm. extent .::::- ' throuqhout the entire' projeet. site to reduce the use. of ....... . ----.).> fertilize-rs, PQstieides I and herbicides. When the application of such chemicals is necessary t they. shall only be applied by state-~icense.d personnel. . ~ e >- @ , -~ Bl.tffers of grasses, low growing plants, shrubs, a.nd trees shall be planted along the. sb-oreline and around the. pond, provil:linq habitat, water quality enhancement, and protection from hUMan disturbance. . pri:m.ary landscape lIlaterials planted. on the site shall. be those native trees, shrubs, grasses, a~d herbaceous cover. which pX'ovide food and cover for wildlife,' for exalDple,. Do~qlas firs, We!:?tern red cedars, vinellaples, wax myrtles, and wil.d strawberries. . ~ !nlarqeaent. of the existing pond shall make provi~ions ~or ~ iaJ?roV'ed aeration and circulation to discourage alqae growth, ~ -- "'-- aaJ..ntain consistent watel" quality, and i:aprove its value as .~ fish habitat. s g...-- ...............--~ .. ........... ...,..--" .fIJ....;' ') r A ~' 1..: C _ . f'~ ..^.._~ .. 3 ~ 1 -~ .3.J.L '~"';; ~ 'o1",}:' ~ """'-....,. -. """" j ..... "'_V Shoreline SUbStantial Develop2lent Permit SDP91-0~7 Pope. Resources €iJ 2<<>. 27. :rnterpretive signs shall be installed at: pertinent ,points throughout the site to .describe iJDportant habitat t"eatures and L- 'W'ildl.ife.. Puphlets .nd. brochures shall be distributed to ~ residents and guests to inorea.se a.wareness and respect: for wild.li.re wliich inhabit. the project site.. i'il1:ration shall. be provided at the p~ wa.~er-intake pipes to reduce the 1ncident:al. capture of fish. The veir outlet to the pOnd shal.l be designed to prevent fish' entrapment: in the pond. The pond. shal;l be designed to provide some shall.ow area alon9' --L-- the south shoreline, suitable for wading- birds, iSQlated from ~ public access. . . ~ Pond sboreline le.ngth equivalent to at least sot of th~ . <:7 existing"shoreline length shall be provided for bird loafing_~~ - ............ area. This s~Fe!ip_~_~..A., JIlust )')e. buffered by lanClscape -.;;> vegetation to d1.scourage pUblic. dfi;;turbance. 28. 30. Excavat.ion shall. be .inimi~ed to' reduce. encountering cont~nated soil materials "develo~ent. of the site. --31..: 32.. 33. 34. @ potential for from' previous Lead concentrations from. previous testing in. the vicinity of Test pit 10. (TP-1.0) shall be. reporteCl 'to the Washington J)epCll:"bten't of Ecology if encountered in quantities in eXcess of 10 oubic yard~. Excavated soils at locations other than TP-l0 shall be ~onitor6d for presence of potentially hazardous "materials. In accordance with DOE Policy #101 (Site Viscovery and Release Reporting), a qualified hazardous waste specialist shall Re contacted if lIlore than 10 cubic yards of charcoal-l.ike material is encountered in order . t.o properly. assess implications for disposal. Prior to initiating excavation, a qualif1ed hazardous waste specialist ahal~ orient the construction contractors and crew regarding field identiticiltion Qf potentially cQntall;i1\ated soil and ~aterials. . The proponent shall establi$b legally enforceibl.e architectura.l desi9n guidelines which address sudl matters as roof lI.a.terials, siding-, exteriol;: colors, a.PJlurte.nances, and 6 (l [ .., I' . '. r. _, .L .)t.,'. 1~1 ,.~",...."...,.__..,,,-,.,,....,,,.,.,,,,,.....,,,....--- _-3 if,;f ,(f2- ~-......._- -- ><U1)._. ....................-.......--, . ...............<.....,~.'""."""~.,........_' .... .. -.oreline SUbstantial Development. penait SDP91-Q17 Pope Resources: o1::her faotors that affect the overall aestheti.c character of L. the project site. ~ 3G. The proponent abal.l comply with. .all regulations of the state Shoreline Management Act (RCW 90.58), R.CW 217.44.040, RCW 27.53.0GO ana 1Q.C 25-489 regarding- archaeolQ9ical sites. These regulations prohibit, intentional. disturbance of axohaeolO9'ical or burial $ites without prior approval and provide protocols for actions fOllowinq discovery of such sites. 0 37. Prior to excavation, a qualified archaeologist shall orient the construction contractors and crews in identification of poten"tial archaeolQ(]ieal resources "that might be-uncovered, and. how to prb<:::e.ed in the ev~t of an un~ected discovery. 38.. It cultural resources are c:liscoveredduring constructionr a. qualified arChaeologist shall be t.meaiate~y dispatched to systematically analyze tbe fin~9s . All. construction or excavation on tha.t portion of 0 the project site. shall. immediately Cellae and ll1easures shall be. taken to prevent:. further disturbance prior to analysis by. a qualified al:"cboa.eologist. 39. The tolloving above-code fire and lit"e safety features shall be prOVided in the Inn structure: quick-response sprinkler -heads; aut0JD8.tic alarm. notice to Fire District 1"3; tamper protection 'f01; the autom.atic Sprinkler SY5t.~i hose oa~.inets at each 0 floor; diesel generator back-up power source; ~n indi.cator pane). for all 'building. safety systems; S1110ke detection on lIVAC systems; interior stairway to the roof; and a wet-sprinkle~ in the covered drive-through. 40. The proponent shall develop a plan for the Inn vhich identities applicable em.ergency. actions to. be taken during ___ such unlikely events as fires at; earthquakes. The staff shall ~ be. trained in tire behavior, built-in fire a.nd life safety systems in the Inn structure, and proper responses to emergencies and safety needs of all quests. 41.' A maintena;.ce schedule :for fl1:e and life safe.ty e.quipll1ent shall be developed. All such equip.ent and relate.d syst.e.1IlS /j shall be tested at least annually in coopera.tion with ~ Jefferson County Fire District No.3. Records of a1.1. maintenance and syste1n tests shall be retained at th~ :Inn and copies transaitted to Jef.f"erson County Fire District No.3. 42. Exit lllaps and insb:uctions on emergency procedures shall be 7 (,f -0 ()(~ ~. t I l. 0 I . . ,"",O",_~.i.. _~..1.i._.... ~_f.- . . ........- ----..... ......... ~ ._~.....-... ~"'440 ... -.. Shorel.ine. Substantial De.ve1oplJlent P&rlllit . SDP91.-011 Pope Resources 1nstal.~e.d on the inside of all guest room doors. 43. A pUblic. relations videotape whic:b includes a prol.oqu,e "? elllpbasizing building safety featw:es, exit locations, and. l guest: responsibilities ~or safety in eaergency slt~ations shall be availab1e in all guest roo.s. The .I1U\'S resident lIlanager and all other on-site staff, as a condition of employment, should be trained in basic first aid and CPR. . ".. >7 . (< 45. Fundamental $1lerqeney aid equipment shall -be provided at the Inn for staf~ Use. 46. In ol:der to iilSSess CUJIlulatiye iapacts from this project, the proponent sbal.l: (a) Continue the existing Water ouality Monitorinq Proaram whioh dOCUlllents nonpoint sottrce . effects. on the' C1.ass A "Extraordinary" desiqnation of Port Lud10w Bay and it's tributaries. sampling shall include the. water column, sadillle.nts, and s.hel.lfish as appropriate. 3:1: lllonitoring indicates 1:hat acti.vities of the. proponent are causing reduction in the'water quaJ.ity .of Port LudJ.ow ~~Y below the Class AA "Extraordinary-" d~ignation, the Proponent $hall. buldiat.Cii':ly s? advi.se Jefferson County. The "scope of wo~k" . for ea.~ year's progre.tll shall-be conduct~d where necessary -eo obtain the most JI~ingfUl scienti1:ic data. The ensuing year's scope of work shall be approved ):)y Jefferson Cdunty each autumn. Each year's lIlonitoring results shall be reported to Jefferson County by March 15 of the fOllowing year. The proponent shall be responsible for employing a qua~ified water quality research fir:mat propone.ntts sole expense. (b) Conduct a Water Res~urce Konitorin~ Proaram ~ich dOCWllents the condition of several aquifers utilized as a domestic source by the proponent. Attention shQu.1.d be focused on static grou.ndwa:ter 'le~els and s&1.twater intrusion. Should groundwater lllQnitorinq indicate an inadeq'l.\ate yiel~ to support developl'lle.nt of the ~ropone.nt. t s proj.ects in the context Of water rights. and 'projected water use, the proponent shall. ilmBediate1.y inform. the County and take necessary action to insure an adequate supply of potable water. This action could include:, but is not limite.<1 to I development of additional. sources, suppleaentation. ot existing sources,' ani!./or implementation of additional cQnservation .easures. It .utually agreeable, the proponent sh~~l .include Ol~us '. . 8 (, r '.. ~ \ I'. '.. _. t, -' t.. .t I '1 ( .~__ 2. Ii L ~_....,'"""'''''''->.,.",..,.,.. ---~!L. ~ L ....' ....""'.....--- Shoreline Substantial Development PerJlit SDP91-017 Pope. Resources Beach Tracts' veIls in onqoing CJroundwater JlOnitoring afforts.. The p.opone~t shall ~ responsible for employing a qu~1ified qeohydrol09l.st to.desl.gnl direct, and oonduct said lI.onl.toring proqrul. The expense of said geobydrologist shall be. the proponent.'s. Results of the .000itoring progrCUi'l sha11 be reported to Jefferson' County ~ the Washington 'Oepart:Jnent or Ecology by Karch 15 of each year. ee) Conduct a Seva9'e Trea1:m.ent Plant Honito~j.n(f Proqram which documents effects of the proponent's projects on capacity of. the se.eondary va.stevater treatment plant. Attention shall ~ foCused on the number of connections; effluent flo~ volume; and effluent quality. I:t is ac::knowledsed that the sole authority to' 1llOnitor and regulate operation of the se'SlaC]'e treat:Jlent plant rests with the Washington Department of Ecoloqy.. Nothing- in this condition is intended to supersede. or conflict with requirements of the proponent's National Po11ution Discharge. Elimination System (NPOES) Permit No. WA- 002120-2 issued pursuant to the Federal Clean Water Act and cO'$.panion st.at-utes. If any function or valUe ~onitored by the NPDES permit. is exceeded, notice shall be provided to Jefferson County ~oncurrently with notice to the Washington DeparbD.ent Qf Ecology. :Re.sults of the monitoring ccntained in this condition shall be transmitted to Jefferson County and the Washinguon Department of Ec.ology by_March 15 Of each year. . \ \\ '\ l. . \ .7. ..-') ./ The riprap shore defense \lork shall: be constructed in "- sUbstantial alignment ~ith .~e ordinary hiSh ~ater mar~. 48. Design of the fue.l and propane tanks shall be approved by the Chiet of F~e District NO.3. (!i) The deed t~ the homeo'WT1ers association from pope ~esources 01: . Tracts A, C, and K-l sha11 be subject to an easement in favor of the general public for: access, use, and enjoyment for: the L--- life of the proJect. The association will retain the right ~O, reaSonably regu1at~ those common areas by establisning rules and regulations, such as those to protect lanscapinq I regulate noise, prevent nuisances. InforiDational and directional signs shall clearly indicate the location of public access areas. 50. L'-- ~...... 51.. The proponent Gllall provide near the marina loadintj area an acoess area and stai:rway to facilitate laWlching of small. watercraft such as dinghies, canoas, and kayaks. 9 .... 8 [. ~~ ! J f~; R "..-_2~__,___, -,-~,L.. ~~ ~. '. ""!....!'.......~1J.,.:~. ' /~_._--~' . . . .... -" ......,: Shoreline $ubst:ant:ial Developllent Penrl.t SOP91-017 Pope Resources lfOTl:CE: . 1. This perait .ay be re's';inded by...:the Jetfe:rIJon 'County Soard of comaissioners or the Washington Sta:t:e Shorelines Se.arinqs Board upon t:he tindinq t:h. perai..~tee has not COJllplied vitll. the conditions herein, pUX'sucmt t;o acw 90.58.140(8) . 2. The per.itte6 is liable for a.1:1 dU&a.ges to public ~ privata property arising frOlll. viol~tio1'\ o~ any I?.r'ovisions of the pe.rlIlit hereby granted,. including the cost -of restoring- the affected area. to its. condit:.ion prior to viol.a'tion and possible ~ co~ costs that 'Alay ensure from violation., pursuant to RCW 90.Sa.230.. 3.. Construction pursuant to this perait will not begil1 nor is. to authorized until. t:hirty (30) days fr01lll the date of. filing as defined in RCW 90.58. 140(6)' an4, WAC 173-14.-090, or until all. re.view proceeding's initiated within 1:birt:y days frOID the date of sucl1 :ti.J.ih9 bave tenrlna.ted, except. as provided in RCJ'l 90..58..140(5.a-c) ...Construction or sul?stan1:ial progress toward construction of the pendtte.d .development shall. begin within two (2) years trom the. date of this pe.r.iDit .and coapl~. tion of fJ the permitted development shall be aCCOlap1.ished within five (5) years from. the.date of this perm.ita t. 4. NothilltJ i.n this pendt shall excuse the permittee. fro'll1 QOlllpl ~ with any other federal, state., or local sta tute.s, J..nan ,. or regulations applicable to this project, but consi$ten ith ~ 9. OCC()I~:l 1.0 ......C7........ ....... ~ ~~__} ~ .c. ~..._"'~"""',. $ :,co"'"1. '-->.' __.~J.,_,. L .- ---_._..,'-----~.~-~--_._.. 'nUS SECrJ:Olf :IS FOR DEPA.'RT1<<ElC1: OF BcoLoCY USE ONLY XN REGARD TO A CONDITIONAL USE PERHIT OR A VAaIAHCE. . . /fA u> \q'L" Date received by the Department: / 'laV /~ I Denied ~.. ~ r'-;, Shoreline Substantial Development Perai1: SDP91.-017 POpe Resourc:es Approved: "I , '1. .. This conditional use pe:rai.t/Y4U" ;'..kllCe 1s approved/d~Rl"d by the . Depart:ment pursuant to Chapte1: 90.58 RCW. Development shall be unde.~en .pursuant to t;b.e following additional teras and conditions: ~~ ,.,.,..,.AeflS(') l.eT7l::.~ ~ C:\SDP\SDP91017.Per .' 11 '. ......--??a .___.~;~0:-'~:;' ~."Jk:-~, ::7.... o . ......-- ~ Jo I n(' ~ n ,.I i L' .J ? 0 S&Vlf./J ry