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HomeMy WebLinkAboutLog010 e . , ' ... WHEN RECORDED, RETURN TO: Marco de Sa e Silva Davis Wright Tremaine LLP 2600 Century Square 1501 Fourth Avenue Seattle, Washington 98101 AMENDMENT NO.1 TO PORT LUDLOW DEVELOPMENT AGREEMENT Grantor: JEFFERSON COUNTY, a political subdivision of the State of Washington Grantee: PORT LUDLOW ASSOCIATES LLC, a Washington limited liability company OLYMPIC WATER AND SEWER, INC., a Washington corporation Legal Description: Tract E as depicted on the Plat of Ludlow Cove Division No. I, Phase 1, recorded in Volume 8 of Plats, pages I through 6 inclusive, records of Jefferson County, Washington. Assessor's Property Tax Parcel Account Numbers: 968 800 102 I .,{1 " ~ J..... 'J- ~ 8f t"\ .~ .~ . C/ ,',\1 il ~\\/ Reference to Related Document: A.F. No. 435974 (original agreement) ;"f'! .}./ .,)/ :;r,' .t~(' ~' ".", ~ ""'1',,;;:/ SEA 1755097v';5, 65364-1 5.17.06 - LOG ITEM t: . L/~ L Page _L__9t~ ~ . e tt ... . , AMENDMENT NO.1 TO PORT LUDLOW DEVELOPMENT AGREEMENT THIS AMENDMENT NO.1 TO PORT LUDLOW DEVELOPMENT AGREEMENT (this "Amendment") is made this day of ,2006, by PORT LUDLOW ASSOCIATES LLC, a Washington limited liability company, and OLYMPIC WATER AND SEWER, INC., a Washington corporation (collectively "PLA"), and JEFFERSON COUNTY, a political subdivision of the State of Washington (the "County"). This Amendment amends and modifies that certain Port Ludlow Development Agreement dated May 1,2000, and effective May 8, 2000 (the "Agreement"), between Pope Resources, Olympic Property Group LLC, Olympic Resorts LLC, Olympic Water and Sewer, Inc., and Olympic Real Estate Development LLC (collectively "Pope") and the County, which was recorded in the real property records of Jefferson County, Washington, under Auditor's File No. 435974. RECITALS A. Pope and the County made the Development Agreement effective May 8, 2000. PLA is the assignee and successor to Pope under the Agreement. The Agreement is a development agreement under RCW 36.70B.170 and UDC 18.40.850. The Agreement governs the development of real property owned by PLA and located in the approximately 1,200-acre Port Ludlow MPR, which is a master planned resort designed by Jefferson County in 1998 under the authority ofRCW 36.70A.362. B. Tract E, which comprises a 14.66-acre portion of the Port Ludlow MPR, was subject to vested land use and subdivision applications pending on the effective date of the Agreement. In making the Agreement, the County did not intend that the Agreement would impair the rights of Pope or it successors, including PLA, to proceed under their vested land use and subdivision applications. PLA claims that under its vested applications, it may establish timeshare Structures and uses within Tract E, in a density of up to sixteen (16) timeshare units per acre ofland, and by a decision dated September 2, 2005, in the case captioned In Re Application by Port Ludlow Associates, County File No. SUB05-00004/SDP05-00002, the County Hearing Examiner agreed with PLA. C. A dispute has arisen between three property owners within the Port Ludlow MPR, on the one hand, and PLA and the County, on the other hand, whether timeshare structures and uses are permitted on Tract E under the Agreement. The dispute is subjectto a land use appeal captioned Powers v. Jefferson County, Jefferson County Superior Court Case No. 05-2-00356-1, and a shoreline appeal captioned Powers v. Port Ludlow Associates LLC, Shorelines Hearings Board Case No. S04-029. By decision dated December 7,2005, in the case captioned In Re Appeals of Powers, Rozzell, and Hale, County File No. SUB05-00004, the County Appellate Hearing Examiner agreed with the three property owners. D. In response to the order of remand from the County Appellate Hearing Examiner in the case captioned In Re Appeals of Powers, Rozzell, and Hale, County File No. SUB05- 00004, the County Hearing Examiner issued an "Order Response to Remand" dated February 6, SEA 1755097v;j 65364-1 ." 2 5.17.06 . ) e e 2006, in which the County Hearing Examiner ordered that (1) the County has no authority to arbitrarily limit its consideration of vested rights to the initial land use application, rather than a subsequent application, (2) the division ofTractE is protected by the vested rights doctrine, (3) binding site plan and building pennit applications relating to Tract E are vested under prior regulations, not current regulations, and (4) applicable laws vest the land use to be considered under the applicable land use regulations, not under the initial land use application, and the County's 2002 decision to approve a conditional use permit for multi-family ~e within Tract E at a maximum density of 16 dwelling units per acre is barred from further review by the Land Use Petition Act, RCW Chapter 36.70C. E. There exists a significant controversy regarding the choice of development standards, the interpretation of applicable development standards, and the scope of the vested rights doctrine, with respect to the proposed development of Tract E. The controversy is causing significant expense to the County and PLA anddoes not promote the public health, safety, and welfare. The prompt and certain resolution of the controversy is of significant public importance and will provide benefits to the County and to its citizens. F. In the Agreement, the parties agreed to certain flexibility objectives: "The development of [PLA Property] described in this Agreement, including the Exhibits and Appendices, provides the desired initial definition and certainty of the [PLA Property] buildout. However, the parties acknowledge that modifications to the proposed development will occur during the buildout 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")." Agreement Section 3.11 at pages 5-6. G. In the Agreement, the parties also agreed to cooperate with each other: "The parties shall not unreasonably withhold requests for information, approvals or conSents provided for in this Agreement. The parties agree to take further actions and execute further documents, whether jointly or within their respective powers and authority, to implement the intent of this Agreement." Agreement Section 4.17 at page 13. H. By letter application dated March 3. 2006. which was amended on Mav , 2006, PLA asked the County to approve this Amendment in order to help resolve the pending dispute, clarify and modify the development standards that apply to Tract E, and approve timeshare structures and uses on Tract E. I. The County has determined that the resolution of the pending dispute, the clarification and modification of the development standards that apply to Tract E, and the approval of timeshare structures and uses on Tract E will further the flexibility and cooperation objectives of the Agreement, will further the public health, safety, and general welfare, and will serve the public use and interest. J. The enviromnental review of timeshare structures and uses within Tract E under the State Environmental Policy Act, RCW Chapter 43.21 C, was completed in connection with the enviromnental review of the impacts of the timeshare proposal In Re Application by Port SEA 1755097v~.5. 65364-1 3 5.17.06 - e e Ludlow Associates, County File No. SUB05-00004/SDP05-00002, which environmentalreview is hereby adopted and incorporated herein by this reference as authorized unded~.cW 43.21C.034. K. The Countv finds that the timeshare structures and uses orooosed bv PLA within Tract E are more similar to residential structures and uses than to commercial structures and uses. L. PLA and the County desire to amend the Agreement for the sole purpose of clarifying and modifying the development standards that apply to Tract E, in order to clearly permit the establishment of timeshare structures and uses within such tract. bM. By the making of this Amendment, PLA agrees that future land use and subdivision decisions by Jefferson County relating to Tract E will be vested under the development standards described in this Amendment, rather than the Jefferson County subdivision and zoning ordinances in effect on January 19, 1995, which had been the Tract E vesting date prior to the making of this Amendment, and that by the making of this Amendment PLA is surrendering valuable rights in exchange for greater certainty. MN. This Amendment was the subject of a fifteen (15) day comment period, which ran from , 2006, to , 2006. As required by RCW 36.70B.200, a public hearing was held before the Jefferson County Board of County Commissioners on , _, 2006. The Board of County Commissioners reviewed and took official action adopting this Amendment on , 2006. NOW, THEREFORE, in consideration ofthe mutual covenants, conditions, and agreements of the parties, it is agreed by and between the parties that the Agreement shall be amended and modified as follows: AGREEMENT 1. Dermed Terms. The following terms used in this Amendment shall have the following meanings: a. "PLA Property" means those portions of the Pope Property that are owned by PLA and located within the Port Ludlow MPR as of the effective date of this Amendment. b. Timeshare Units. "Timeshare Structure" means any structure containing one or more c.. "Timeshare Unit" means the real or personal property, or portion thereof, in which the timeshare exists and which is designated for separate use. d. "Timeshare Use" means a right to occupy a unit or any of several units during three or more separate time periods over a period of at least three years, including renewal options; whether or not coupled with an estate in land. SEA 1755097vJ~ 65364-1 5.17.06 4 e e e. "Tract E" means Tract E as depicted on the Plat of Ludlow Cove Division No.1, Phase I, recorded in Volume 8 of Plats, pages I through 6 inclusive, records of Jefferson County, Washington. Tract E is located generally as depicted on the drawing attached hereto as Exhibit A. 2. Tract E Development Standards. The development standards set forth in the Agreement, except as they may be modified or waived by or pursuant to this Amendment, tOl!ether with the develooment standards and other conditions set forth in the shoreline su '. . . Seotember 2. 2005. In Re Avvlication bv Port Ludlow Associates. County File No. SUB05- 00004/SDP05-00002. which are incoroorated herein bv this reference and are not modified by this Amendment. rel!ardless of the ultimate disoosition of such oermit decision. shall constitute the development standards (collectively, "Development Standards") governing the development and use of Tract E. The development standards and other provisions that shall apply to and govern and vest the development, use, and mitigation of the development of Tract E for the remaining term of the Agreement shall be as follows: a. All project elements, including without limitation permitted uses, nonresidential densities and intensities, and building sizes, are governed by the Development Standards, provided, however, that within Tract E, the following supplemental development standards ("Supplemental Development Standards") shall apply, and in the event of any conflict between the Development Standards and the Supplemental Development Standards, the Supplemental Development Standards shall control: i. Uses permitted outright shall include Timeshare Uses, multi-family residential uses, and single-'family residential uses, in addition to other uses permitted under the Development Standards. ii. The maximum permitted density of Timeshare Uses, multi-family residential uses, and single-family residential uses shall be nHie (9)sixteen ( 16) units oer l!rOSS acre ofland. which units may comorise Timeshare Units, multi-family residential dwelling units, aR-dor single-family residential dwelling units. orovided. however. that in consideration of the makinl! of this Amendment PLA al!rees to limit the maximum densitv to nine (9) units per gross acre ofland. b. Landscaping, buffers, parks, recreation areas, open space, and similar features are governed by the Development Standards. c. Development is not required to provide affordable housing. d. All required mitigation measures, development conditions, and other requirements of Project approval are governed by the Development Standards. e. All required financial agreements, including any required impact fees, in- lieu fees, inspection fees, dedications, financial contributions, and reimbursement provisions are governed by the Development Standards. SEA 1755097vJ2 65364-1 5.17.06 - 5 e e . . f. Design standards are governed by the Development Standards. g. Review procedures and standards for implementing Project decisions shall be governed by the Development Standards. , h. Infrastructure requirements, including roads, water, sewer, and storm drainage,~hall be governed by the Development Standards. 1. Tract E shall be developed in a maximum of one (I) phase. 3.1 MERU's. As of the effective date of this Amendment, the Port LudlowMPR has approximately developed homes, condominiums and platted lots, as well as a resort and commercial center. All parties acknowledge there is a development cap for the Port Ludlow MPR set forth in the zoning chapter as "Measurement ERU's" (Measurement Equivalent Residential Units or MERU's). Total allowed development within the Port Ludlow MPRis 2,575 MERU's, with a residential unit maximum of2,250, as set forth in zoning chapter adopted by the Board of County Commissioners on October 4, 1999, in Ordinance 08-1004-99. Each Timeshare Unit established within Tract E as provided in this Amendment shall be counted as one (1) residential unit for purposes of calculating MERU's within the Port Ludlow MPR. 4. PLA as Assignee and Successor. PLA is the assignee of and successor to Pope under the Agreement and as such is subject to all of the benefits and burdens of Pope under the Agreement. 5. Notices. All communications, notices and demands of any kind that a party under this Agreement requires or desires to give to any other party shall be in writing deposited in the U.S. mail, Icertified mail postage prepaid, return receipt requested, and addressed as follows: To the County: AI Scalf Jefferson County Department of Community Development 621 Sheridan Street Port Townsend, W A 98368 cc: Board of County Commissioners P.O. Box 1220 Port Townsend, W A 98368 And cc: Jefferson County Prosecuting Attorney To PLA: Diana Smeland Port Ludlow Associates LLC 44 Breaker Lane Port Ludlow, WA 98365 SEA 1755097vJ~ 65364-1 5:17.06 6 e e cc: Randy Verrue HCVPacific Partners San Francisco, CA 9 And cc: Marco de Sa e Silva Davis Wright Tremaine LLP 2600 Century Square 1501 Fourth Avenue Seattle, W A 98101 6. Effect of Amendment. This Amendment amends and modifies the Agreement and shall be effective as of the date of mutual execution and delivery hereof. In the event of any conflict between the Agreement and this Amendment, this Amendment shall control. Capitalized terms not otherwise defined herein shall have the meanings given them under the Agreement. Except as contained within the Agreement and this Amendment, there are no other agreements or understandings between PLA and the County relating to the subject matter of the Agreement and this Amendment. The Agreement is hereby confirmed and ratified. JEFFERSON COUNTY Jefferson County Board. of County Commissioners By By By SEA 1755097v3~ 65364-1 5.17.06 - 7 e APPROVED AS TO FORM: Prosecuting Attorney Al Scalf Director of Community Development SEA 1755097v~..}65364-1 5.17.06 - e . . PORT LUDLOW ASSOCIATES LLC, a Washington limited liability company By Its President 8 e e OL YMPICW ATER AND SEWER, INC. By Its President EXHmITS: A Tract E Drawing STATE OF WASHINGTON ) ) ss. COUNTY OF JEFFERSON ) On this _ day of , 2006, before me, a Notary Public in and for the State of Washington, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument, on oath stated that he or she was authorized to execute the instrument, and acknowledged it as the Port Ludlow Associates LLC, to be the free and voluntary act and deed of said limited liability company for the uses and purposes mentioned in the instrument. IN WITNESS WHEREOF, I have hereunto set my hand andofficial seal the day and year first above written. NOTARY PUBLIC in and for the State of Washington, residing at My appointment expires Print Name STATE OF WASHINGTON ) ) ss. COUNTY OF JEFFERSON ) On this _ day of , 2006, before me, a Notary Public in and for the State of Washington, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument, on oath stated that he or she was authorized to execute the instrument, and acknowledgeq. it as the of Olympic Water and SEA 1755097vJ5. 65364-1 5.17.06 - 9 - e Sewer, Inc., to be the free and voluntary act and deed of said. corporation for the uses and purposes mentioned in the instrument. IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above written. NOTARY PUBLIC in and for the State of Washington, residing at My appointment expires Print Name STATE OF WASHINGTON ) ) ss. COUNTY OF JEFFERSON ) On this _ day of , 2006, before me, a Notary Public in and for the State of Washington, personally appeared , , and , personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons who executed this instrument, on oath stated that they were authorized to execute the instrument, and acknowledged it as the . three members of the Jefferson County Board of County Commissioners to be the free and voluntary act and deed of said Board, acting in their official capacity representing Jefferson County, Washington, for the uses and purposes mentioned in the instrument. IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above written. NOTARY PUBLIC in and for the State of Washington, residing at My appointment expires Print Name SEA 1755097v3~ 65364-1 5.17.06 10