HomeMy WebLinkAboutLog012
U~/ 17101)
W~D 09;33 FAX 3604lj 7699
ENV.HEARINGS OFFICE ~
@OOl
DATI::
TO:
FRorrf:
RE:
Pages:
MESSAGE:
FAX. COVER SHEET
ENVIRONMENTAL HEARINGS OFFICE
4224 - 6th Ave. S.E., Bldg. 2
PO Box 40903
Lacey, VVA 98504-0903
Phone (360) 459-6327 . FAX (360) 438-7699
May 17, 2006
Leslie A. Powers
Rick Rozzell
Marco De Sa E Silva
David W. Alvarez
Donald E. Marcy
William H. Lynch, Presiding
509/453-0745
no fax available
206/628-7699
360/385-9186
206/587-2308
SHB.OS-029
LESLIE A. POWERS AND RICK ROZZELL V.
JEFFERSON CO. AND PORT LUDLOW ASSOCIATES
LLC
18 (includes cover sheet)
{)as'-; C. Q/;; LU-e
D.? + () cufJ~ E
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-.:3 d:~ S ec~7;
LOG. \T.~ E~.. . .'
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paQ64-o ..lfL
05/17/06 WED 09:33 FAX 3~38 7699
ENV.HEARINGS OFfI~
POllution Control HearIngs 8~rd
Shorelines Hearingi Board
Forest f'raCtiC~ Appeils 8<iVd
Hydraulic Appeal. 8~rd
Environment~13(ld land U 'c tte3rlnss Board
STATE Of WASHINGTON.
ENVIRONMENTAL HEARINGS OFFICE
4114 . 6th Ave. SE, Bklg. 2, Rowe Six
'0 Box 40903, LacP)', WA 98504-0903
May 17,2006
BY FA" Al'Il'D MAIL
Leslie J\. Powers
3502 Tieton Drive
Yakime W A 98902
David W. Alvarez
ChiefCivil.Deputy Pmsecuting Attome.y,
Jefferson County
POBox 1220
Port Townsend W A 98368
Rick Ruuell
41 Win ~rose Drive
Port Ludlow W A 98365
Donald E. Marcy
CAIRNCROSS & HEMPLEMANN
524 Second Avenue Suite 500
Seattle WA 98104-2323
(for Trendwest Resorts Inc.)
Marco :)e Sa E Silva'
DAVIS WRIGHT TREMAINE LLP .
2600 C~ntury Square
1501 F.)urth Avenue
Seattle WA 98101-1688
(For Port LudJow-Associates-LLC) . .
RE: SHB NO. 05-029
LESLIE A POWERS & RICK ROZZELL v. JEFFERSON COUN-TY.,
TRENDWEST RESORTS. INC. " PORT LUDLOW ASSOCIATES LLC
Dear Parties:
Enclosed is An Order on Motions in this maner..
~002
Telephone: (360)4S9-6321
FAX: ()60) 4311-7699
EmAII: enoiik!ho.wa.8Gv
Webslte: www."ho.wa.IlOv
This is a FINAL ORDER for purposes of appeal to Superior Court within 30 days, pursuant to
WAC ':,61-08.570 and 575, and RCW 34.05.542(2) and (4).
The folJowing notice is given per RCW 34.0S.461(J): Any party may file a petition for
reconsidel4ltion within lO days and serve, it ootheotherpanies; The.tenn."'fiJo'~ means receipt.
Sincerely yours, .
tJ~jl ~
William H. Lynch; Presiding.
WHLIj gig 05-029
Cc: Don BaJ~s -ShoreJands., Ecology.
Jefferson County Dept of Community Development
Ene.
CERTIFICA nON
On this clay. I forw8Ided a true lIIld accurate copy of . .
!he dol;ullll:nl3 to whidl this certificate is affixed viii
United Sl4Ies.PoSlIII Scrvi~ PO~. p.repaid to the anomeys
ofrccord hCTCin.
I eMify uncMr.pct1llty of.pcrjUJ)' undutle.lawsofdle...
State ofW . &101I II forego' h; we and COllcct.
DATED Dl Lacey. W A.
o
05/17/06 WED 09:34 FAX 360 ~ 7699
ENV.HEARINGS OFFICE e
~003
BEFORE THE SHORELINES HEARINGS BOARD
STATE OF WASHINGTON
2
. LESLIE A. POWERS and
3 RICK ROZZELL,
4
Petitioners,
SHB 05-029
5
ORDER ON MOTIONS
v.
6.
JEFF'ERSON COUNTY; TRENDWEST
7 RESORTS, INC.; and PORT LUDLOW
ASS')CIA TES, LLC,
8
Res ondents.
9
Petitioners Leslie A. Powers and Rick Rozzell filed an appeal with the Shorelines
10
Hearings Board (Board) challenging Jefferson County's issuance of a Shoreline Substantial
11
Devel )pment Permit (SDP05-00002) with conditions for the developmemof a .12o-unit time-..
12
share :llulti-family residential development on approximately 14.66 acres within the Port Ludlow-,
13
Master Planned Resort.
14
15 The Board was comprised of William H. Lynch, presiding, Kathleen D. Mix, Judy
16 Wilson, Kevin Ranker, and Judy Barbour. No oral argumentwas held. The Board deliberated"
17 the motions based upon the record. Donald E. Marcy and Michael S. Brunet represent
18 Respondent Trendwest Resorts, Inc. (Trcndwest). Marco de Sa e Silva represents Respondent
19 Port 1 udlow Associates, LLC. (PLA). David Alvarez represents Respondent Jefferson County.
20 Petiti(tner Leslie A. Powers represents himself and Petitioner Rick Rozzell.
21
SHB 05-029
ORDER ON MOTIONS
1
05i17i06 WED 09:34 FAX 3~438 7699
ENV.HEARINGS OFFI~
~004
Four different dispositive motions were filed in this case. They are:
2 1) Powers' MotionfoI Summary ]udement The Petitionerrequests.tbe Board.tQ remand. . .
the SSDP back to the County on the basis that it was not finally approved by the County.
3
4
2) Trendwest's Motion to Dismiss. Trendwest moves for dismissal of the entire case on
the baiis that the shoreline appeal before the Board was filed too late because the SSDP was finat
when filed with Ecology. Trendwest also contends the Boardhas no juriSdiction to decide the
issues raised in the appeal. .
5
6
3) Jefferson County's Motion for Partial Summary Judgmen.t. Jefferson County has
asked the Board to dismiss issues #4, #5, #6, and #7. The County notes that another portion of
this proposed project is before the superior court. It contends that the action and authority oft~
Appellant Hearing Examiner should be brought in superior court under the Land Use Petition
Act (1 UPA).
7
8
9
4) Port Ludlow Associates" Motion to Dismiss. PLA moves for dismissal of the entire
case 011 the basis that the appeal was filed too late. PLA also contends the Board has no
jurisdiction to decide the issues raised in the appeal.
The Board has reviewed and considered the pleadings, motion papers, and exhibits
10
11
12
contai1ed in the Board. record, including the following:
13
1. Petitioner's Petition for Review and Attached Exhibits;
2. Petitionet's Motion for Summary Judgment;
3. Petitioner's Memorandum of Facts and Law in Support of Motion for
Summary Judgment;
14
15
16
4. Declaration of Leslie A. Powers and anaclunents;
5. Supplemental Declaration of Leslie A. Powers and attachments;
6. Respondent Trendwest"s Response to Petitioners' Motion for Summary
Judgment;
17
18
19
7. Respondent Jefferson County's MemorandwnofLaw in Opposition to
Petitioners' Motion for Summary Judgment;
20
21
~. Declaration of David Alvarez dated February 16,2006, and attachment;
SHB ('5-029
ORDI:R ON MOTIONS
2
05/17/06
WED 09; 34 FAX 360 . 7699
ENV.HEARINGS OFFICE ~
~005
1
9. Respondent Jefferson COWlty'S Memorandum of Law in Support oflts Partial
Dispositive Motion;
2
3
10. Declaration of David Alvarez in Support of Respondent Jefferson County-~s...
Partial Dispositive Motion and attachment;
4
11. Declaration of AI Scalf in Support of Respondent Jefferson County's Partial
Dispositive Motion and attachments;
5
6
12. Respondent Trendwest's Motion to Dismiss;
13. Declaration of Donald E. Marcy, Respondent Trendwest Resorts, Inc.' s
Motion to Dismiss;
7
8
14. PLA's Motion to Dismiss and Memorandum in Support of Dispositive
Motions of Jefferson County and Trendwest;
9
15. Petitioner's Reply Brief to Respondents Jefferson County's Motion to
Dismiss; Trendwest's Motion to Dismiss; and pLA's Memorandum of Law in
Support of Its Partial Dispositive Motion; and
10
II
16. Declaration of Leslie A. Powers and attachments.
12
13
Having fully considered the record in this case and. being fully advised,. the Board enterS-.
the following ruling.
14
IS
FACTUAL BACKGROUND
16
The site is located within Jefferson County on the north shore of Ludlow Cove at the west
17
end of Port Ludlow Bay. The site comprises .14.66 acres, which is located within' the Port
18
Ludlow Master Planned Resort. The proposal, known as Ludlow Cove Division 2. would create
19
a 120~"nit time-share multi-family residential development. Staff Rep()rl and Recommendation
20
to Jeffi'rson. County Hearing EXaminer and Mitigated Determination olNon-Significance
21
(MDN;)), Attachment to Petition for Review.
SHB 05-029
ORDER ON MOTIONS
3
0<5/17~06 WED 09: 35 FAX 3_38 7699
I
I
ENV.HEARINGS OFFI~
~006
2
Jefferson County and the City of Port Townsend jointly adopted a Shoreline Managem~
3
Master Program (SMMP) in March 1989. Declaration of Al Scalf, A.ttachment'j.. The SMMP-,
4
is currt:ntly applicable only to Jefferson County because Port Townsend subsequently adopted its
5
own SMMP. Deciaration of David Alvarez, p.l, 116.
6
In January 1995, the prior owner of the property, Pope Resources, filed a preliminary plat
7
appIicEtion with Jefferson County for the single and multi-family residential project known as
i Ludlo'H Cove. In 1998 Jefferson County adopted the Land Use Procedures Ordinance (LUPO),
8 i Ordinance #04-0828-98, to comply with the state Land Use Petition Act (chapter 36.7OC RCW) ,
9
10
and the: Regulatory Reform Act (chapter 36.70B RCW). Deciaration of Al Sealf, p. 3, , 11; see
11
also AlIachment 3. LUPO became effective on September 28, 1998. Declaration of Al Scalf,
12
Attachment 4. LUPO was never submitted to the Department of Ecology (Ecology) for its
13
approval for incorporation into the Jefferson County SMMP.
14
Pope Resources signed a development agreement with Jefferson County on May 1, 2000,
15
for property owned by Pope Resources within the Port Ludlow Master Planned Resort.
16
Declaration of Al Scalf, Atrachment 5. Section 3.12.1 of the development agreement provides
17
that aU development applications proposed by Pope for the Pope Property must be pursuant to
18
the MI'R Zoning Ordinance and the County's LUPO. Section 4.22 of the agreement states that
19
the tenn of the agreement is 20 years from its effective date.
20
PLA purchased Pope Resources' interest in the Ludlow Cove site in 2001. TheCounty
21
Hearing Exami~er approved an application pertaining to Ludlow Cove on August 2, 2002.
SHB 05-029
ORDER ON MOTIONS
4
05/17/,6 WED 09:35 FAX 360 tit 7699
ENV.HEARINGS OFFICE e
~007
I On January 13,2005, PLA filed a Master Land Use Application pursuant to LUPO to
2. deveJcp Ludlow Cove. Division Two. Dec/aration of Al Scalf, Attachments I & 2. The
,
3 applic:ltion covered a variance; binding site plan; and the SSDP;and included 11 SEPA checklist;-
4 Although PLA owns the property. the proponent of the proposal is Trendwest. Declaration ofAr
5 Scalf, ,7.2. , 4.
6 The county staff determined that the process for "Type Bt> permits under the LUPO roles-
7 applied to the proposal. lei, p. 4, , J J Under the Type B LUPO process, a Hearing Examiner
8 makes the initial decision, which subsequently maybe appealed to an Appellate Hearing
9 Examiner. Id. p.5. ~ 23; see also Attachment 4.
lOAn open record hearing was held before a Hearing EXaI1}iner on August 15, 2005. The
11 Hearing Examiner's decision was issued on September 2.2005. Declaration of Al Scalf,
12 Attachments 6 & 7. On the same day. Jefferson County mailed a notice to interested parties,
13 including the Petitioners. notifying them of the Hearing Examiner's decision. The notice states
14 "Appeals of this decision must be made in writing as outlined in the attached instruction sheet."
15 Deelai"ation of Al Scalf, Altachment 7.
16 The attached instruction sheet ststesthat an aggrieved party of record may file an appeal
17 to the Appellate Hearing Examiner by September 16, 2005. The instruction sheet also states that
18 "Instructions and requirements for processing an appeal of a Hearing Examiner Type B decision
19 are ex: llained in the [L UPOl>> Section 15 of L UPO sets forth the procedures for Type B
20 decisions before the Hearing Examiner. Subsection C.4. of this section authorizes a person to..
21 file a motion fo~ reconsideration with the Hearing Examiner within ten working days from fue,..
SHB (15-029
ORDER ON MOTIONS
5
05/17/06
WED 09;35 FAX 3~38 7699
ENV.HEARINGS OFFI~
~008
date th~ Hearing Examiner's decision was filed. It further provides that "[i]f a timely and
2 appropriate request for reconsideration is filed, the appeal ~riod shall begin from the date the
3 decision on the reconsideration is issued." Declaration of Al Scalf, Attachment 4, p. J 3 of J 9.
4 Consistent with these instructions from the County, Petitioner timely filed a motion for
5 reconsideration on September 12,2005. Mr. Lewis Hale also timely. filed a motion for
6 reconsi deration. Declaration of Leslie A. Powers, p. 2. However, on September 13, 2005,
7 Jeffers"n County sent the SSDP as conditioned by the Hearing Examiner to Ecology for filing.,
8 Declaration of Al Scalf, Attachments 8 & 9. The COtL'lty staff believed the SSDP was final:
9 I Declaration of AI Scalf, p. 6, ~ 27. Ecology received the SSDP on September 15,2005.
I
10 ,I Declaration of David Alvarez, February J 6, 2006, Attachment 1. The Petitioner inquired on
11 September 14th of the County aboutthe deadlines for filiJig appeals. Mr. Scalf sent an e-mail
12 respon;e indicating that the SSDP was already filed with Ecology, and that an appeal with the
13 Shorelnes Hearings Board must be filed within 21 days after this filing. Mr. Powers asserts this
14 e-mail response from the County, along with other e-mails, was lost from his computer and no
15 other rotice was sent. Mr. Powers did not immediately seek another response from the County....
16 The Hl,arings Examiner denied the motion for reconsideration on September 27, 2005.
17 Dee/alation of Leslie A. Powers, Attachment.
18 The Petitioner filed an appeal with the Appellate Hearing Examiner on October 12, 2OOS,
19 asdire:ted by LUPO and the Part B procedures. On October 14,2005, the Appellate Hearing
20 Examiner issued a guidance letter that stated be believed he did not have jurisdiction to hear the
21 appeal of the Hearing Examiner's decision to approve the SSDP with conditions. Declaration of
I SHB 05-029
ORDER ON MOTIONS
6
OS/17~06 WED 09:35 fAX 3604lt 7699
ENV.HEARINGS OfFICE e
~009
1
i
AI Sca~f, Attachment 10. The Petitioner filed a Motion for Reconsideration of~his decision on
2
I
October 26, 2005. On October 31,2005, the Appellate Hearing Examiner issued an order
denying a motion to reconsider his October 14th letter. Declaration of Al Scarj; Attachment 11.
!
An apJul was filed with the Shorelines Hearings Board on November 3. 200~.
I
I
3
4
5
6
ANALYSIS
7
1
Swmnary judgment is designed to do away with unnecessary trials wh~ there is no
I
genuine issue of material fact. laPlante v. State, 85 Wn.2d 154,531 P.2d 299 (1975). A
materia) fact is one upon which the outcome of the litigation depends. Jacobskn v. State. 89
8
9
10
,
Wn.2d ) 04, 569 P.2d 1152 (1977). In a summary judgment proceeding, the ~oving party has
the initial burden of showing there is no dispute as to any material fact. Hiatt~. Walker
11
12
Chevrdet. 120 Wn.2d 51, 66, 837 P.2d 618 (1992). If the moving party has ~et its burden of
i
producing factual evidence showing it is entitled to judgment' as a matter of layv. the burden
shifts "to the nonmoving party to set forth facts showing there is a genuine iss~e of material
i
fact." Hash v.Children's Orthopedic Hosp., 110 Wn.2d 912, 915, 757 P.2d Si)7 (1988). In
i
13
14
15
16
I
ruling ,)na motion for summary judgment, the Court must consider all of the rbaterial evidence--
17
;
and all inferences therefrom in a manner most favorable to the non-moving pafty and, when so
considl:red, if reasonable persons might reach different conclusions, the motioh should be
I
. I
18
19
denied Hash at 915; Woody. Seatl/e,51Wn.2d469, 358 P.2d 140(1960). !
i
The legal issues in this case, as contained in the Second Pre-Hearing Order, are as
,
follow:;:
20
21
SHB 05-029
ORDER ON MOTIONS
7
05/17(06 WED 09;36 FAX 3111t38 7699
ENV.HEARINGS OFFI~
l4J 010
1
1.
Was the petition for review filed by.the Petitioners with the Shorelines.._
Hearings Board filed in a timely manner?
Does the decision of Jefferson County to issue Shoreline Substantial
Development Permit SDP05-00002 (SSDP) with conditions to co-
applicants Port Ludlow Associates and Trendwest for construction of a.
120~unit multi-family timeshare development at Ludlow Cove Division II
comply with the Jefferson County Shoreline Master Program, the
applicable provisions oftbe Washington. Administrative Code, and chapter
90.58 RCW?
Should the petition be dismissed for failure to serve all the parties in a
timely manner?
Does the Shorelines Hearings Board have jurisdiction to hear an appeal of
the decision by the appellate hearing examiner for Jefferson County that
he did not have jurisdiction to hear an appeal of the SSDP?
Was the SSDP submission final for filing when the Jefferson County
Department of Community Development (DeD) filed it with Ecology?
Did DeD comply with applicable law, including the county's shoreline
master program's provision relating to notice when it submitted the SSDP
to Ecology?
Is it legally proper to issue additional SSDPs ~o the project proponent for
other propenies .it owns in . the Port. Ludlow Master .Planned Resort if they- .
are alleged to be in violation ofSSDP 91-017, the Shorelines Management
Act, and the Shoreline Master Program in Ludlow Bay Village?
2
2.
3
4
5
3.
6
4.
7
8
5.
9
6.
10
7.
11
12
13
14
Finality of Hearing Examiner's Decision
15
The Board finds that the County erred by sending the SSDP to Ecology on September 13,
16
2005, loecause it was not the final decision of the County. At the time of the transmittal to
17
Ecology, the motion and appeal procedures spelled out in the ordinance were still underwayan<t
18
availatle to the Petitioners. Because of this determination, the Board does not address other
issues raised in this appea1.)
19
20
1 Although not essential to this decision, the Board does not agree with Petitioner's
assertion that he'was owed specific notice by the County that the SSDP had been sent to
Ecology. RCW 90.58.140(4) requires a local government to forward.a copy of the decision in-a..,
SHB 05-029
ORDER ON MOTIONS 8
21
Q5/17~06 WED 09;36 FAX 3604llf 7699
ENV.HEARINGS OFFICE e
IlJOll
1 All of the Respondents state the appeal should be dismissed because it is untimely, based
2 upon the date which the County filed the SSDP with Ecology. Regarding timeliness of tbe
3 appeal the County argues that the Board does not have the statutury'authority.to review'locaf--
4 government decisions regarding the authority given to its hearing examiners. The County also
5 contenis that the SMMP controls the appeals process at issue. The County reasons that LUPO
6 did n01 amend the County SMMP because Jefferson County never asked Ecology to approve
7 LUPO as an amendment to the SMMP. Therefore, the County contends that SSMP Section
8 18.25.c;90 is the controlling provision, which establishes a 30-day deadline from receipt of the' ,
9 final older for filing shoreline pennit appeals. Essentially, the County argues that it erroneously
10 directej the petitioner into the wrong review and appellate process, and was without authority to
11 do so, ',mder its SMMP. See Declaration of Al Scalf, ATtachment J.
12 Similarly, Trendwest and PLA assert that the Shorelines Hearings Board does not have
13 authority to consider jurisdictional decisions by the Appellate Hearing Examiner. They also
14 contenJ that the SSMP trumps other general code requirements.
1 5 WAC 113-27-130 provides that the final decision by the local government is filed with
16 Ecolo@y. RCW 90.58.180(1) addresses service of a petition for review after the petition
17
18 timely manner to each person requesting a copy of the decision. The Petitioner was provided
timely. notice of the Hearing Examiner's decision. Although it is unfortunate that there was a
19 problem in retrieving an e-mail response from the County, the Courity did not owe additional
notice regarding the filing of the SSDP. Petitioner should have been aware that the SSDP was
20 likely 10 be filed with Ecology shortly after the issuance of the decision. The Board reached this....
same conclusion in Ferari v. Lewis County and Robert Thompson, SHB No. OS-033 (Order
21 Dismhsing Appeal) (May 10,2006).
SHB 05-029
ORDER ON MOTIONS
9
05/17/06 WED 09;36 FAX 3111f38 7699
ENV.HEARI~GS OFFI~
@012
pertairing to a final decision of a local government has been filed. RCW 90.58.180(2)
2 authorzes the Attorney General and Ecology to obtain review of any .final.decision of a looal...
3 .. goven:ment granting a permit, or granting or denying W1 application for a permit. With respe~
4 to app:aJs ofloc'al government decisions, the framework for shorelines appeals restricts the
5 Board's jurisdiction to only final decisions by local governments.
6 The Board has clear authority to determine whether the action taken by a local
7 government is "final" for purposes of appeal to the Board. In Morgan et at.. v. Clark Countyet--
8 aI., SH B Nos. 05-008 & 05-009 (Order on Petitioners' Jurisdictional Motions)(August I, 2005),,'
9 ,the Bo ud was faced with whether Clark County had made a final decision on a SSDP and a
10 conditional use permit for a proposed mine expansion. Although there were unresolved issues in
11 that ca.e which could ultimately affect the activity conducted at the site, the Shorelines Hearings
12 Board found that the Clark County Board of Commissioners did make a final decision on the
13 shoreline permits after the hearing examiner employed by the County had made an initial
14 determination.
15 In this case, Jefferson County adopted LUPO with the stated purpose of establishing
16 procedures for the County to process land use applications. The ordinance states:
17 The procedures are designed to promote timely and infonned public participation;
eliminate redundancy in the land use application review process; minimize delay and
18 expense; and help ensure the use of land in a manner consistent with County goals as set
forth in the Comprehensive Plan and development regulations,
19
20
Secliot~ 1, Attachment 4, Declaration of AI Scarf
21
SHB 05-029
ORDER ON MOTIONS
10
05/17/06
I
WED 09: 37 FAX 360 It 7699
ENV.HEARINGS OFFICE
e
1il01J
1 In Jefferson COWlly. LUPO incorporates shoreline permits applications and appeals.as
2 part of the permits subject to its review procedures. Seclion.6 oflbe ordinance divides land use.
3 appliclltions into three differentcategories~ The "Type A" category only"requires the Director~,
4 make ~m administrative decision. Shoreline exemptions and SSDPs for primary uses are both
5 listed tmder this category.
6 Consistent with its stated purpose, Section? of LUPO allows applications to be
? consolidated. This section provides that:
8 A land use application that involves two or more penn its may, at the option of the-
Applicant, be consolidated into a single process using the highest procedure required for
9 any permit included in the application.
10 Attac}'ment 4. Declaration of Al Scarf.
11
12
Condominium subdivisions of five or more units and conditional uses are considered to
13
by TYJtC B decisions. Type B decisions require the decision to be made by a Hearing Examiner.
14
Section 15.A. of LUPO mandates the use of the Hearing Examiner procedures fOf "Type Bland
15
use applications and aU other land. use applications considered under Type B procedures using \
16
consol:dated permit review." Because the proposed project includes a SSDP (Type A decision}
17
and a condominium subdivision (Type B decision), the consolidated application process under--,
18
LUPO requires a Hearing Examiner to review the SSDP in this case.
19
A further examination ofLUPO illustrates that the SSDP was subject to the entire LUPO
20
proces:;, and that it was an error for the County to segregate the SSDP apart from the rest of the
21
consoLdated-apl!lication and transmit the permit to Ecology. Section 19 of LUPO contains a
SHB 05-029
ORDER ON MOTIONS
11
05/17/06 WED 09;37 FAX 3~438 7699
ENV.HEARINGS OFFI4It
~014
1 chart showing the review procedw-es to be undertaken by the. Hearing EXAmiQet_andthe...
2 Appelllte Examiner; . In the. Appellate Examiner column; bo~ Type-A and. Type- B awlicat~
3 contair. an asterisk. The asterisk, as indicated in the key, provides "These decisions may be
4 appeal?d 10 Superior Court or lhe Shorelines Hearings Board in accordance with Chapter
5 36.7OC RCWor Chapter 90.58 RCW." (emphasis added). No such asterisk appears in the
6 Hearin ~ Examiner column.
7 Furthennore, Section D.7. of LUPO states that "[l]ke decision afthe H~aring Examirrer--.
8 shall b? final unless, within fourteen (14) calendar days after issuance of a decision, a party
9 appealr the decision to the Appellate Examiner in accordance with this Chapter." (emphasis
10 added). Nothing in LUPO suggests' that the Hearing Examiner's decision regarding a shoreline
II permit would somehow become a final decision jf a timely appeal of this decision was made to
12 the Ap)ellate Examiner. The "Appellate Examiner" is defined as "the individual who decides
13 appeal:; of Hearing Examiner Decisions," Seclion 2, Artachmenr4. Declaration of Al Scalf
14 Sectioll 5 of LUPO contains specific exemptions from the review processes established in the
IS chapter. No exemptions are listed for shoreline cases. Thus. there is. simply nothing in this
16 Ordinance that would give notice to a party that an alternative method of appeal applied. and that---
17 a final decision had been made at the hearings examiner level for the shoreline aspects of a
18 pennit.
19 In the present case, Jefferson County transmitted the SSDP to Ecology even before the
20 Hearing Exarniner rendered his decision on reconsideration. Section CA. states that "[i]f a
21
SHB 05-029
ORDER ON MOTIONS
12
Q5/17/Q6 WED Q9; 37 FAX 36Q _ 7699
I. .,
ENV.HEARINGS OFFICE ~
@Q15
timely and appropriate request for reconsideration is filed, the appeal-period shall begin from. the..
2 date the decision on the reconsideration is issued." (emphasis added).
3 Respondents contend that the SMMP controis over LUPO because LUPO was ne~.
4 approved by Ecology for incorporation into the SMMP. Jefferson County's intent to utilize
5 LUPO 's two-tiered hearing examiner process for consolidated appeals, including shoreline
6 pennit appeals, is abundantly clear. Section 3 of this ordinance expressly states that:
7 The procedures for decision-making described in this Chapter and in the Rules---of..
Procedure adopted under this Chapter supersede any conflicting procedures that may be
8 found in other chapters of the Jefferson County Code. This Chapter applies to existing'
permit applications as well as to those that may be filed in the future.
9
10 Jefferson County established a two-tier appellate process with different hearing
11 examiners at each level for consolidated land use applications. Because a portion of this process
12 may o(:casionally include shoreline permits does not require the incorporation of this entire
13 proces:; as part of the SMMP.
14 Even if the Respondents' argwnent that the SMMP controls over LUPO is accepted, the
15 Hearing Examiner's decision still does not constitute the final decision in this case. Section
16 18.250480(2) and (3) ofthe SMMP authorizes the Hearings Examiner to take actions regarding
17 permit applications under the ShQreline Management Act and the SMMP. Section 18.25.490(2)
18 providl~s that the Board of County Commissioners acts as an appeals board "with respect to
19 decisions by the hearing examiner issued within the scope of the master program." This includes....
20 appeal:; of decisions regarding applications for shoreline permits. Section 18.25. 490(J).. If the..
21 Count)' concluded that there is no' appeal to the appellate hel;lfings examiner on shoreline
SHB 05-029
ORDER ON MOTIONS
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ENV.HEARINGS OFFI~
141016
pennilting matters, it should have directed petitioner to this alternative route of review prior to
2 transmitting the decision to Ecology.
3 . Although Section 18.25.690- provides for appeals to be made to the Shorelines ~
4 Board. that section applies only after receipt of the final order. Respondents' suggestion that--.
5 Section 1.8.25.690 allows appeals directly from the Hearing Examiner to the Shorelines Hearings
6 Board would make language in Section 18.25.480 superfluous. When interpreting legislative
7 enactuents, they should be read to give each word and clause effect so no'part is rendered
8 meaningless or superfluous. Hangartner v. Seattle, 151 WI1.2d 439,451,90 P.3d 26 (2004); ~
9 also filils to recognize that Section 18.25.510(8) authorizes a person aggrieved by an action taken
10 I on an application may appeal the decision in compliance with Section 18.25.680 and l8.2H90.
11 (emphsis added). Section 18.25.680 authorizes appeals before the Jefferson County Hearing
J2 Exam.ner. As discussed earlier, Section J8.25.490 establishes the Board of County
J 3 Comnussionersas an appeals board from Hearing Examirier decision~,
14 I Trendwest also argues that other rules of statutory construction, including "the specific
15 contrds over the general", should make the SMMP supersede the LUPO. Although this is a
16 wide}:, recognized rule of statutory construction when two provisions cannot be harmonized,
17 Omega National Insurance Company v. Marql!ardt, J 15 Wn.2d 416,425, 799 P.2d 235 (1990),
18 in thi~ case Trendwest has the argument backwards. The more specific process is the
19 consolidated review process established by LUPO to implement the Regulatory Reform Act:.
20 This (Ontrols over the more general and earlier enacted provisions. of the. SMMP. In addition. .if
.
21 statutnry provisions conflict, the more specific and latest in order controls: State'v. San Juan,
SHB 1)5-029
ORDER ON MOTIONS
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WED 09;38 FAX 3604llf 7699
ENV. HEARINGS OFFICE e
~017
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1 Count)', 102 Wn.2d 311, 320, 6.86 P .2d 1073 (1984). Even if there is a question about
2. reconciling these two ordinances. Jefferson County expressly stated in Section 3 ofLUPO.
3 which is ~ntitled "Controlling Ordinance and Rules"., that LUPO expressly supersedes any
4 conflicting ordinance. The LUPO provisions control the processing of this permit application. .
5 and any subsequent appeals.
6 The Jefferson County HearingExaminer cannot pick and choose what permits are subject
7 to full LUPO review. In Morgan, the Clark County Board of Commissioners was the entity
8 designated to make the final decision on the shoreline permits in question. If the Hearing
9 Examiner in that case had transmitted the pennits to Ecology prior to the Commissioners' action,'
10 it likenlise would have been flawed because it was not a final decision by the County. Jefferson
11 County had not yet made atinal decision regarding the SSDP in this case when the permit was
12 transmitted to Eco)ogy prior to review by the Appellate Examiner, or alternatively, by the Board
13 of COlmty Commissioners, acting as an appeals board.
14 A remand to the local government is usually the remedy in a case where there isa lack of.
15 a final decision by the local government. Here, because of confusion and misdirection in the
16 application of the proper procedures for the shoreline pennit, there is no final decision by a local
17 gover:unent sufficient to give the Board jurisdiction.
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SHB :>5-029
ORD3R ON MOTIONS
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ENV.HEARINGS OFFIC4lt
~018
1 ORDER
2 The Motions for Summary Judgment are DENIED on all issues and the case is
3 REMANDED to Jefferson County for further actions, consistent with this opinion.
4
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5 Done this ti.. day of ~ 2006.
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7
SHORELINES HEARINGS BOARD
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~cw~
WILLIAM H. LYNCH, Presiding
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JGYu6.-"h ~
KATHLEEN D. MIX, Mernb
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JUDY SON, Member
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. ..B.8~.,'
Y BARBOUR., Me her
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Y -
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IS
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SHB05-029
ORDER ON MOTIONS
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HP Fax Series 900
P-lain Paper-FwCopier
J .ast Fax
~ Time
~
May 17 8:50am Received
Result:
OK - black and white fax
e
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Fax History Report for
Jeff Co Prosecutor '""\ Civil
360 385-9186 .
May .17 2006 9:00am
Identification
Duration Pages Result
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360 438 7699
5:19
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OK