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HomeMy WebLinkAbout221215 Memorandum - Termination Point Properties, LLC ESTATE PLANNING REAL ESTATE BUSINESS PLANNING Office: 4566 Flying Goat Ave NE C120 Bainbridge Island, WA 98110 P (206) 842-7676 F (888) 356-8310 lincoln@lincolnmillerlaw.com www.lincolnmillerlaw.com MEMORANDUM RE: POSITION OF TERMINATION POINT PROPERTIES, LLC Date: December 15, 2022 To: Jefferson County Hearing Examiner From: Lincoln Miller, Attorney for Termination Point Properties, LLC, Petitioner, and Termination Point Homeowners Association Re: Petition to vacate Ricky Beach Drive, County Road No. 504809 Introduction and Outcome of Original Petition to Vacate Ricky Beach Road I represent the Petitioner in this matter, Termination Point Properties, LLC (TPP), and Termination Point Homeowners Association (HOA). In 2001, TPP sought to vacate Ricky Beach Drive, a county road within the Plat of Termination Point (“the Plat”), marked below in red. ESTATE PLANNING REAL ESTATE BUSINESS PLANNING Office: 4566 Flying Goat Ave NE C120 Bainbridge Island, WA 98110 P (206) 842-7676 F (888) 356-8310 lincoln@lincolnmillerlaw.com www.lincolnmillerlaw.com TPP was successful in having its petition conditionally approved by the hearing examiner following notice and hearing. As set forth in the Findings, Conclusions and Recommendation of the Hearing Examiner dated August 13, 2001 (“the Hearing Examiner’s Recommendation”), which has been filed herein, the petitioner’s request to vacate Ricky Beach Road was conditionally approved. Those conditions were as follows: 1. The establishment by TPP of a means to provide beach access (i.e., a recorded easement) for the benefit of lots within the Plat (i.e., Lots 1-57 on the map at page one); 2. The establishment/recording of a road easement to the public road commonly known as Shine Road to benefit Lot 57 of the Plat; 3. Resolution to prevent landlocking of Lots 8-19 and Lots 36-41; and 4. Payment of compensation for the right-of-way by TPP. Current Status of Satisfying Conditions to Road Vacation Condition #1: TPP and TPHOA have proposed recording an easement to provide beach access over the portion of Ricky Beach Drive that remains following the road vacation and set forth in purple on the following map. The proposed easement is filed as Exhibit H to the County Engineer’s Report, and benefits all lots within the Plat except for Lot 57 because the owner of Lot 57 (“the Cooper-Long Family”) already has beach access across an adjacent lot (“the Cooper-Long Waterfront Lot”) which abuts Hood Canal, and which lot the Cooper-Long Family also owns (See Exhibit A attached below – Deed for Lot 57 and Cooper-Long Family Waterfront Lot). Neither of the Cooper-Long Family’s lots have been a member of TPHOA. There is no objection, however, to including Lot 57 to this proposed easement, which would satisfy Condition #1. ESTATE PLANNING REAL ESTATE BUSINESS PLANNING Office: 4566 Flying Goat Ave NE C120 Bainbridge Island, WA 98110 P (206) 842-7676 F (888) 356-8310 lincoln@lincolnmillerlaw.com www.lincolnmillerlaw.com Condition #2: TPP has proposed recording an easement to provide access over the portion of Ricky Beach Drive that is allocated to Lots 30-35 following the road vacation, for the benefit of Lot 57 and the Cooper-Long Family Waterfront Lot. Again, the Cooper-Long Family Waterfront Lot is neither a part of the Plat nor was it called out to be added as part of Condition #2. The proposed easement is filed as Exhibit I to the County Engineer’s Report. This proposed easement would satisfy Condition #2. Condition #3: TPP agrees that Lots 9-19 and Lots 36-41 are effectively unbuildable under current applicable law, and that the risk of landlocking the same is a moot issue because the recorded easement that satisfies Condition #1 provides access to these lots from Shine Road. As a consequence, Condition #3 is satisfied. While TPP has no present interest in improving Lots 9-19 and Lots 36-41, TPP does not wish to consolidate the individual lots as there may be value in selling such lots to adjacent lot owners and other TPHOA members or transferring the development rights of those lots in the future. The ability to sell the individual lots or transfer their development rights would be lost in an unnecessary consolidation. Condition #4: It is undisputed that Condition #4 has been satisfied. Procedural Status of Road Vacation Petition In recent years, TPP requested that the County Engineer join in recommending to the Jefferson County Board of County Commissioners (the “BoCC”) that the conditions of the Hearing Examiner’s Recommendation had been satisfied and that the road vacation should be approved. In large part, due to the objection of the owner of Lot 57 to the road vacation as well as with the lengthy passage of time from the 2001 hearing, the County was unwilling to do so, and instead recommended that the BoCC remand the matter to the hearing examiner. The BoCC followed such recommendation over the objection of TPP. This matter now comes before the Hearing Examiner on remand of the Hearing Examiner’s Recommendation to conditionally approve the vacation of Ricky Beach Road. It is TPP’s position that the purpose of remand is to accomplish the following: (1) identify those conditions which have been satisfied; (2) determine whether the proposals made by TPP will satisfy conditions not yet satisfied; (3) for any conditions that remain unsatisfied, make recommendations for specific action steps to be taken to satisfy the same; and (4) confirm that the road vacation should be approved, or alternatively, be approved subject to completion of any remaining action steps identified by the hearing examiner. In addition, it may be necessary for the Hearing Examiner to clarify and/or interpret what “subject to County approval” means with respect to Conditions #1 and #2. Additional Comment and Response to County Engineer’s Report and Public Comment In large part, the County Engineer’s recommendations to the Hearing Examiner align with TPP’s position. However, there are some departures which are addressed below. However, before discussing those, I wish to provide some additional information about the importance of vacating Ricky Beach Road. ESTATE PLANNING REAL ESTATE BUSINESS PLANNING Office: 4566 Flying Goat Ave NE C120 Bainbridge Island, WA 98110 P (206) 842-7676 F (888) 356-8310 lincoln@lincolnmillerlaw.com www.lincolnmillerlaw.com First, it is important to note that the County closed Ricky Beach Drive in 1997 because of a slide across the road near Lot 30, since repaired by TPP. There have been trespassers using the beach for parties and drug usage at various times. TPP and the TPHOA are anxious to have this road vacated so they can put a gate across the road to limit access to those with the legal right to use it. This includes the owners of lots in the Plat and the Cooper-Long family that owns a waterfront parcel adjacent and to the south of Lot 57. Each owner will be given a lock combination or key. Ricky Beach Drive winds through a woody and isolated area, where it is not enjoyable to meet strangers, especially if you are a vulnerable person. A call for help will probably not be heard. Persons experiencing homelessness have used this beach area earlier this year and there have been reports of firearm discharges coming from the lower lots that border Ricky Beach Drive. It is also not enjoyable to take children to the beach and bump into drug paraphernalia, used condoms, or other evidence of inappropriate activity. The road vacation of Ricky Beach Drive will be a significant benefit to all parties. The County, of course, will be relieved of responsibility for a road the public can make no legitimate use of and which the County has closed in any event, having no desire to maintain it. The County will no longer have any potential liability if someone gets injured on the road, whether from defective road conditions or dangerous trees lining the road. All of the lot owners with homes will benefit from a safe, gate-controlled access to the lower beach lot. They will be able to access the beach feeling secure. Depending on the conditions, they may be able to take a small boat, canoe or kayak to the beach in the back of their car, truck or trailer. The beach will be much more usable and enjoyable. The Cooper-Long family that owns Lot 57 will benefit from the road vacation as well. At the present time, with the road closed, they have no vehicular access to their lots. Ricky Beach Drive is fairly steep and is a difficult walk for someone who is elderly and carrying things. Now and in the future they will obviously benefit from vehicle access. Their property will be more usable and enjoyable as well as safer. If this road is vacated and the private easements recorded, the Cooper-Long family will have no burden of maintenance for the road from their property to Shine Road. Under the proposed easement, that burden rests solely with the lot owners in the Plat. The Cooper-Long family will have access controlled by a gate and will not have to arrive and find trespassers on their property or discover drug paraphernalia or similar items. Turning now to TPP’s departures in position from that stated by the County Engineer in his report, I begin at Paragraph #5 of the Engineer’s Report, where Mr. Reinders believes that TPP should explain its future vision for the vacated road. While this is not a condition of the road vacation, TPP has previously informed the County that it has no definitive plans for the portion of the vacated road that will be allocated to its properties, other than the access as can be made over the existing road. Development of improved access for vehicles and/or pedestrian traffic would have to be both safe and cost-efficient, and no present analysis has been undertaken to determine if it could be made so. TPP acknowledges their obligation to obtain permits that may be required by improvements to the road and the County’s right to inspect the same. ESTATE PLANNING REAL ESTATE BUSINESS PLANNING Office: 4566 Flying Goat Ave NE C120 Bainbridge Island, WA 98110 P (206) 842-7676 F (888) 356-8310 lincoln@lincolnmillerlaw.com www.lincolnmillerlaw.com Turning to Paragraph #8, the County Engineer correctly notes that any beach access should be preserved for the lots within the Plat and that TPP’s proposed easement (Exhibit H of County Engineer’s Report) does not benefit Lot 57 owned by the Cooper-Long Family. However, the owner of Lot 57 already has independent beach access through its adjacent waterfront lot (See Exhibit A below). It was TPP’s understanding that the Cooper-Long Family’s sole objection to the road vacation was the potential loss of access to Shine Road (satisfied through the proposed easement at Exhibit I of County Engineer’s Report) and that they were not seeking an easement for beach access as they already had the same through the Cooper-Long Family Waterfront Lot. Nonetheless, TPP has no objection to adding Lot 57 as a grantee to the Exhibit I easement. Paragraph #10 of the County Engineer’s Report accurately reports that the road vacation should not result in landlocking any parcel. The proposed easement at Exhibit I of County Engineer’s Report eliminates landlocking. Nonetheless, Public Works recommends consolidation of presumably 17 individual lots owned by TPP (Lots 9-19 and 36-41). Consolidation is an inefficient and extreme measure that is unnecessary for reasons in addition to the fact that none of these lots will be landlocked. To begin, while the developers who platted this property in 1961 saw a benefit to the waterfront owners from a public road, this situation has changed significantly. In 1983 the County imposed a moratorium on building in this area because of a perceived threat of future slides. The moratorium requires property owners to demonstrate their construction project is safe by submitting adequate geo-tech analysis. The moratorium covered Lots 9-19 and 22-41, as well as Lot 57. Following a number of geotechnical reports, TPP and Jefferson County agreed that the moratorium could be lifted on Lots 22-35. However, waterfront lots, 9-19, and the nearby lots, 36-41 are considered unbuildable. Whether the lots are consolidated or remain as independent lots, the outcome is the same – they are currently undevelopable. However, such lots may have value to TPP if their development rights ever become transferrable. Transfer of development rights (“TDR”) programs are recognized and encouraged in the Washington State Growth Management Act (“GMA”) and are a technique set forth in RCW 36.70A.090 to transfer development from areas where development is undesirable – such as the unbuildable lots in the Plat – to urban areas where growth should be encouraged, consistent with GMA goals. Preserving the lots in their individual lot status preserves value to TPP that would otherwise be lost should the lots be consolidated. In addition, lots 36-41 may have value to the owners of adjacent lots who could purchase the same, expanding their contiguous footprint and providing greater flexibility in the use of their residential property, and adding an additional voting right to themselves in the TPHOA. Lots 9-19 may also have value to the owners within the Plat who desire to purchase in order to have additional voting rights in the TPHOA. Turning to public comment, there is overwhelming support of owners within the Plat approving the vacation of Ricky Beach Road, including the owners of 46 of the 57 lots in the Plat which constitutes more than 80% of the lots in the Plat. As of the date of this submission, only one lot owner in the Plat has spoken in opposition, that being made on behalf of the owners of Lot 57, who also own an adjacent waterfront lot that provides Lot 57 with beach access to Hood Canal. This objector wishes to maintain access to Shine Road for both lots which the proposed easement at Exhibit I of County Engineer’s Report accomplishes. ESTATE PLANNING REAL ESTATE BUSINESS PLANNING Office: 4566 Flying Goat Ave NE C120 Bainbridge Island, WA 98110 P (206) 842-7676 F (888) 356-8310 lincoln@lincolnmillerlaw.com www.lincolnmillerlaw.com Lastly, the County seemingly takes the position that it’s right of approval under Conditions #1 and #2 is unfettered and to be interpreted broadly. That is, they can object to any proposal offered to satisfy Conditions #1 and #2. Indeed, this has worked an outcome where the Cooper-Family has been given veto authority – they object which in turn leads the County to withhold full approval. However, the correct interpretation of the “subject to approval” language in Condition #1 is that the County must only approve the “mechanism” which the County has consistently agreed should be an easement. Once they’ve approved the mechanism, then the condition is satisfied provided the mechanism gives the required beach access, which the County submits it does. Turning to Condition #2, the County’s right of approval is to ensure that the easement being offered provides access to Lot 57 according to Conclusion 4 of the Hearing Examiner’s decision. The County cannot withhold its approval merely because the owners of Lot 57 object to vacation. (In fact, the owners of Lot 57 have offered no proposal for an easement that they would find acceptable – instead, they only argue for denial of the vacation). The Hearing Examiner already heard their objections and recommended vacation be approved over such objections. The owners of Lot 57 are not entitled to a second bite at the apple at remand. Therefore, the County has no right to disapprove of the easements offered to satisfy Conditions #1 and #2 when the County has approved the mechanisms and has submitted that each accomplish the requirements of Conditions #1 and #2. To find otherwise would give the County the right to create new conditions, which was never the Hearing Examiner’s intent concerning Conditions #1 and #2. Furthermore, the Hearing Examiner did not intend for the owners of Lot 57 to have veto authority. Summary In 2001, the Hearing Examiner then recommended the vacation of Ricky Beach Road following notice and hearing, subject to four conditions. Those conditions have been satisfied or been adequately provided for by TPP. The remand of this matter to the Hearing Examiner is not for the purpose of giving objectors a second opportunity to object to vacation or imposing new conditions unrelated to the original four, but rather to determine whether those original conditions have been satisfied (or proposals made that will satisfy the same), and if not, what steps should be undertaken to meet those conditions. Further, if the Hearing Examiner finds that the conditions have been satisfied (or will be satisfied through TPP’s proposal), the Hearing Examiner should enter appropriate findings and make recommendation for the approval of the vacation of Ricky Beach Road. Sincerely yours, Lincoln J. Miller ESTATE PLANNING REAL ESTATE BUSINESS PLANNING Office: 4566 Flying Goat Ave NE C120 Bainbridge Island, WA 98110 P (206) 842-7676 F (888) 356-8310 lincoln@lincolnmillerlaw.com www.lincolnmillerlaw.com EXHIBIT A COOPER-LONG DEED TO LOT 57 (TPN 998600018) AND ADJACENT WATERFRONT PARCEL (TPN 721022002) MAP DEPICTED (WITH TPNs IN YELLOW) AS FOLLOWS: