HomeMy WebLinkAboutLog014
Pollution Control H'"arings Board
SI"rorelint1s Hearin~s BOard .
Forest Practices Appeals Board
Hydraulic Appeals Board
Environmental and Land Use Hearings Board
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Telephone: (360) 459-6327
FAX: (360) 438-7699
Email: eho@eho.wa.gov
Website: www.eho.wa.gov
STATE OF WASHINGTON
ENVIRONMENTAL HEARINGS OFFICE
4224 - 6th Ave. Sf, Bldg. 2, Rowe Six
PO Box 40903, Lacey, W A 98504-0903
May 17,2006
BY FAX AND MAIL
Rick Rozzell
41 Windrose Drive
Port Ludlow W A 98365
David W. Alvarez
Chief Civil Deputy. Prosecuting Attorney
Jefferson County
PO Box 1220
Port Townsend W A 98368
Leslie A. Powers
3502 Tieton Drive
Yakima W A 98902
Marco De Sa E Silva
DAVIS WRIGHT TREMAINE LLP
2600 Century Square
1501 Fourth Avenue
Seattle WA 98101-1688
(For Port Ludlow Associates LLC)
Donald E. Marcy
CAIRN CROSS & HEMPLEMANN
524 Second Avenue Suite 500
Seattle W A 98104-2323
(for Trendwest Resorts Inc.)
RE:
SHB NO. 05-029
LESLIE A POWERS & RICK ROZZELL v. JEFFERSON COUNTY,
TRENDWEST RESORTS, INC. & PORT LUDLOW ASSOCIATES LLC
t\~'i 18 2.~~b
CC\JNTi oeD
Dear Parties:
Enclosed is An Order on Motions in this matter.
This is a FINAL ORDER for purposes of appeal to Superior Court within 30 days, pursuant to
WAC 461-08-570 and 575, and RCW 34.05.542(2) and (4).
The following notice is given per RCW 34.05.461(3): Any party may file a petition for
reconsideration within 10 days and serve it on the other parties. The term "file" means receipt.
Sincerely yours,
u~jlM
William H. Lynch, Presiding
WHL/jg/S 05-029
Cc: Don Bales - Shorelands, Ecology
Jefferson County Dept of Community Development LOG "~c:.M
~JY- , ,U
CERTIFICATION # - . ~
On this day, I forwarded a true and accuraD~~ l of--,-J
the documents to which this certificate is affi,red~~v ~_...1-1-
Enc.
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1
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
7
JEFFERSON COUNTY; TRENDWEST
RESORTS, INe.; and PORT LUDLOW
ASSOCIATES, LLC,
4 'Y
j. .J
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
Development Permit (SDP05-00002) with conditions for the development of a 120-unit time-
12
share multi-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 argument was held. The Board deliberated
17 the motions based upon the record. Donald E. Marcy and Michael S. Brunet represent
18 Respondent Trendwest Resorts, Inc. (Trendwest). Marco de Sa e Silva represents Respondent
19 Port Ludlow Associates, LLC. (PLA). David Alvarez represents Respondent Jefferson County.
20 Petitioner Leslie A. Powers represents himself and Petitioner Rick Rozzell.
21
SHB 05-029
ORDER ON MOTIONS
1
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1 Four different dispositive motions were filed in this case. They are:
2 1) Powers' Motion for Summary Judgment. The Petitioner requests the Board to remand
the SSDP back to the County on the basis that it was not finally approved by the County.
3
2) Trendwest's Motion to Dismiss. Trendwest moves for dismissal of the entire case on
4 the basis that the shoreline appeal before the Board was filed too late because the SSDP was final
when filed with Ecology. Trendwest also contends the Board has no jurisdiction to decide the
5 issues raised in the appeal.
6 3) Jefferson County's Motion for Partial Summary Judgment. Jefferson County has
asked the Board to dismiss issues #4, #5, #6, and #7. The County notes that another portion of
7 this proposed project is before the superior court. It contends that the action and authority of the
Appellant Hearing Examiner should be brought in superior court under the Land Use Petition
8 Act (LUP A).
9 4) Port Ludlow Associates' Motion to Dismiss. PLA moves for dismissal of the entire
case on the basis that the appeal was filed too late. PLA also contends the Board. has no
10 jurisdiction to decide the issues raised in the appeal.
11 The Board has reviewed and considered the pleadings, motion papers, and exhibits
12 contained in the Board record, including the following:
13 1. Petitioner's Petition for Review and Attached Exhibits;
14 2. Petitioner's Motion for Summary Judgment;
3. Petitioner's Memorandum of Facts and Law in Support of Motion for
15 Summary Judgment;
16 4. Declaration of Leslie A. Powers and attachments;
17 5. Supplemental Declaration of Leslie A. Powers and attachments;
6. Respondent Trendwest's Response to Petitioners' Motion for Summary
18 Judgment;
19 7. Respondent Jefferson County's Memorandum of Law in Opposition to
Petitioners' Motion for Summary Judgment;
20
8. Declaration of David Alvarez dated February 16,2006, and attachment;
21
SHB 05-029
ORDER ON MOTIONS
2
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9, Respondent Jefferson County's Memorandum of Law in Support oflts Partial
Dispositive Motion;
2
10. Declaration of David Alvarez in Support of Respondent Jefferson County's
Partial Dispositive Motion and attachment;
3
4
11. Declaration of Al Scalf in Support of Respondent Jefferson County's Partial
Dispositive Motion and attachments;
5
12. Respondent Trendwest's Motion to Dismiss;
13. Declaration of Donald E. Marcy, Respondent Trendwest Resorts, Inc.'s
Motion to Dismiss;
6
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 lts Partial Dispositive Motion; and
10
11
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
15
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-unit time-share multi-family residential development. Staff Report and Recommendation
20
to Jefferson County Hearing Examiner and Mitigated Determination of Non-Significance
21
(MDNS), Attachment to Petitionfor Review.
SHB 05-029
ORDER ON MOTIONS
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1
Jefferson County and the City of Port Townsend jointly adopted a Shoreline Management
2
Master Program (SMMP) in March 1989. Declaration of Al Scalf, Attachment3. The SMMP
3
is currently applicable only to Jefferson County because Port Townsend subsequently adopted its
4
own SMMP. Declaration of David Alvarez, p.3, ~ 16.
5
In January 1995, the prior owner of the property, Pope Resources, filed a preliminary plat
6
application with Jefferson County for the single and multi-family residential project known as
7
Ludlow Cove. In 1998 Jefferson County adopted the Land Use Procedures Ordinance (LUPO),
8
Ordinance #04-0828-98, to comply with the state Land Use Petition Act (chapter 36.70C RCW)
9
and the Regulatory Reform Act (chapter 36.70B RCW). Declaration of Al Scalf, p. 3, ~ 11; see
10
also Attachment 3. LUPO became effective on September 28, 1998. Declaration of Al Scalf,
11
Attachment 4. LUPO was never submitted to the Department of Ecology (Ecology) for its
12
approval for incorporation into the Jefferson County SMMP.
13
Pope Resources signed a development agreement with Jefferson County on May 1, 2000,
14
for property owned by Pope Resources within the Port Ludlow Master Planned Resort.
15
Declaration of Al Scalf, Attachment 5. Section 3.12.1 of the development agreement provides
16
that all development applications proposed by Pope for the Pope Property must be pursuant to
17
the MPR Zoning Ordinance and the County's LUPO. Section 4.22 of the agreement states that
18
the term of the agreement is 20 years from its effective date.
19
PLA purchased Pope Resources' interest in the Ludlow Cove site in 2001. The County
20
Hearing Examiner approved an application pertaining to Ludlow Cove on August 2, 2002.
21
SHB 05-029
ORDER ON MOTIONS
4
MA1 1 8 LUua
,\ COUNTY DeD
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1 On January 13,2005, PLA filed a Master Land Use Application pursuant to LUPO to
2 develop Ludlow Cove, Division Two. Declaration of Al Scalf, Attachments 1 & 2. The
3 application covered a variance, binding site plan, and the SSDP, and included a SEP A checklist.
4 Although PLA owns the property, the proponent of the proposal is Trendwest. Declaration of Al
5 Scalf, p. 2, ~ 4.
6 The county staff determined that the process for "Type B" permits under the LUPO rules
7 applied to the proposal. Id, p. 4, ~ 15. Under the Type B LUPO process, a Hearing Examiner
8 makes the initial decision, which subsequently may be appealed to an Appellate Hearing
9 Examiner. Id. 'p.5, .~ 23; see also Attachment 4.
10 An open record hearing was held before a Hearing Examiner on August 15,2005. The
11 Hearing Examiner's decisio.n 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 Declaration of Al Scalf, Attachment 7.
16 The attached instruction sheet states that 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 explained in the [LUPO]." Section 15 of LUPO sets forth the procedures for Type B
20 decisions before the Hearing Examiner. Subsection CA. of this section authorizes a person to
21 file a motion for reconsideration with the Hearing Examiner within ten working days from the
SHB 05-029
ORDER ON MOTIONS
5
W1 ',~ 1 b 'LUUb
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1 date the Hearing Examiner's decision was filed, It further provides that "[i]f a timely and
2 appropriate request for reconsideration is filed, the appeal period shall begin from the date the
3 decision on the reconsideration is issued." Declaration of Al Scalf, Attachment 4, p. 13 of 19.
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 reconsideration. Declaration of Leslie A. Powers, p.2. However, on September 13,2005,
7 Jefferson County sent the SSDP as conditioned by the Hearing Examiner to Ecology for filing.
8 Declaration of Al Scalf, Attachments 8 & 9. The County staff believed the SSDP was final.
9 Declaration of Al Scalf, p. 6, ~ 27. Ecology received the SSDP on September 15, 2005.
10 Declaration of David Alvarez, February 16, 2006, Attachment 1. The Petitioner inquired on
11 September 14th of the County aboutthe deadlines for filing appeals. Mr. Scalf sent an e-mail
12 response indicating that the SSDP was already filed with Ecology, and that an appeal with the
13 Shorelines 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 notice was sent. Mr. Powers did not immediately seek another response from the County.
16 The Hearings Examiner denied the motion for reconsideration on September 27, 2005.
17 Declaration of Leslie A. Powers, Attachment.
18 The Petitioner filed an appeal with the Appellate Hearing Examiner on October 12, 2005,
19 as directed by LUPO and the PartB procedures. On October 14,2005, the Appellate Hearing
20 Examiner issued a guidance letter that stated he 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
SHB 05-029
ORDER ON MOTIONS
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1 Al Scalf, Attachment 10. The Petitioner filed a Motion for Reconsideration of this decision on
2 October 26,2005. On October 31,2005, the Appellate Hearing Examiner issued an order
3 denying a motion to reconsider his October 14th letter. Declaration of Al Scalf, Attachment 11.
4 An appeal was filed with the Shorelines Hearings Board on November 3, 2005.
5
6 ANALYSIS
7 Summary judgment is designed to do away with unnecessary trials when there is no
8 genuine issue of material fact. LaPlante v. State, 85 Wn.2d 154, 531 P.2d 299 (1975). A
9 material fact is one upon which the outcome of the litigation depends. Jacobsen v. State, 89
10 Wn.2d 104, 569 P.2d 1152 (1977). In a summary judgment proceeding, the moving party has
11 the initial burden of showing there is no dispute as to any material fact. Hiatt v. Walker
12 Chevrolet, 120 Wn.2d 57,66,837 P.2d 618 (1992). Ifthe moving party has met its burden of
13
producing factual evidence showing it is entitled to judgment as a matter of law, the burden
14
shifts "to the nonmoving party to set forth facts showing there is a genuine issue of material
15
fact." Hash v. Children's Orthopedic Hosp., 110 Wn.2d 912,915, 757 P.2d 507 (1988). In
16
ruling on a motion for summary judgment, the Court must consider all of the material evidence
17
and all inferences therefrom in a manner most favorable to the non-moving party and, when ~o
18
considered, if reasonable persons might reach different conclusions, the motion should be
19
denied. Hash at 915; Wood v. Seattle, 57 Wn.2d 469,358 P.2d 140 (1960).
20
The legal issues in this case, as contained in the Second Pre-Hearing Order, are as
follows:
21
SHB 05-029
ORDER ON MOTIONS
7
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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 of the 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 (DCD) filed it with Ecology?
Did DCD 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 to the project proponent for
other properties it owns in the Port Ludlow Master Planned Resort if they
are alleged to be in violation of SSDP91-017, 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
Finality of Hearing Examiner's Decision
14
. The Board finds that the County erred by sending the SSDP to Ecology on September 13,
15
2005, because it was not the final decision of the County. At the time of the transmittal to
16
Ecology, the motion and appeal procedures spelled out in the ordinance were still underway and
17
available to the Petitioners. Because of this determination, the Board does not address other
18
issues raised in this appeal. 1
19
20
21
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
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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 the
3 appeal, the County argues that the Board does not have the statutory authority to review local
4 government decisions regarding the authority given to its hearing examiners. The County also
5 contends that the SMMP controls the appeals process at issue. The County reasons that LUPO
6 did not 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 18.25.690 is the controlling provision, which establishes a 30-day deadline from receipt of the
9 final order for filing shoreline permit appeals. Essentially, the County argues that it erroneously
10 directed the petitioner into the wrong review and appellate process, and was without authority to
11 do so, under its SMMP. See Declaration of Al Scalf, Attachment 3.
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 contend that the SSMP trumps other general code requirements.
15 WAC 173-27-130 provides that the final decision by the local government is filed with
16 Ecology. 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 County did not owe additional
notice regarding the filing of the SSDP. Petitioner should have been aware that the SSDP was
20 likely to 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. 05-033 (Order
21 Dismissing Appeal) (May 10,2006).
SHB 05-029
ORDER ON MOTIONS
9
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1 pertaining to a final decision of a local government has been filed. RCW 90.58.180(2)
2 authorizes the Attorney General and Ecology to obtain review of any final decision of a local
3 government gr'anting a permit, or granting or denying an application for a permit. With respect
4 to appeals of local 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 al. v. Clark County et
8 al., SHB Nos. 05-008 & 05-009 (Order on Petitioners' Jurisdictional Motions)(August 1,2005),
9 the Board 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 case 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 informed 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
Section 1, Attachment 4, Declaration of Al Scarf
20
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SHB 05-029
ORDER ON MOTIONS
10
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1 In Jefferson County, LUPO incorporates shoreline permits applications and appeals as
2 part of the permits subject to its review procedures. Section 6 of the ordinance divides land use
3 applications into three different categories. The "Type A" category only requires the Director to
4 make an administrative decision. Shoreline exemptions and SSDPs for primary uses are both
5 listed under this category.
6 Consistent with its stated purpose, Section 7 of LUPO allows applications to be
7 consolidated. This section provides that:
8 A land use application that involves two or more permits 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 Attachment 4, Declaration of Al Scarf
11
Condominium subdivisions of five or more units and conditional uses are considered to
12
by Type B decisions. Type B decisions require the decision to be made by a Hearing Examiner.
13
Section 15.A. of LUPO mandates the use of the Hearing Examiner procedures for "Type Bland
14
use applications and all other land use applications considered under Type B procedures using
15
consolidated permit review." Because the proposed project includes a SSDP (Type A decision)
16
and a condominium subdivision (Type B decision), the consolidated application process under
17
LUPO requires a Hearing Examiner to review the SSDP in this case.
18
A further examination of LUPO illustrates that the SSDP was subject to the entire LUPO
19
process, and that it was an error for the County to segregate the SSDP apart from the rest of the
20
consolidated application and transmit the permit to Ecology. Section 19 of LUPO contains a
21
SHB 05-029
ORDER ON MOTIONS
11
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1 chart showing the review procedures to be undertaken by the Hearing Examiner and the
2 Appellate Examiner. In the Appellate Examiner column, both Type A and Type B applications
3 contain an asterisk. The asterisk, as indicated in the key, provides "These decisions may be
4 appealed to Superior Court or the Shorelines Hearings Board in accordance with Chapter
5 36.70C RCW or Chapter 90.58 RCW." (emphasis added). No such asterisk appears in the
6 Hearing Examiner column.
7 Furthermore, Section D.7. of LUPO states that "[t]he decision of the Hearing Examiner
8 shall be final unless, within fourteen (14) calendar days after issuance of a decision, a party
9 appeals 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
11 permit would somehow become a final decision if a timely appeal of this decision was made to
12 the Appellate Examiner. The "Appellate Examiner" is defined as "the individual who decides
13 appeals of Hearing Examiner Decisions." Section 2, Attachment 4, Declaration of Al Scalf.
14 Section 5 of LUPO contains specific exemptions from the review processes established in the
15 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 permit.
19 In the present case, Jefferson County transmitted the SSDP to Ecology even before the
20 Hearing Examiner rendered his decision on reconsideration. Section CA. states that "[i]f a
21
SHB 05-029
ORDER ON MOTIONS
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1 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 controls over LUPO because LUPO was never
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 permit 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 occasionally include shoreline permits does not require the incorporation of this entire
13 process as part of the SMMP.
14 . Even if the Respondents' argument 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 18.25.480(2) and (3) of the SMMP authorizes the Hearings Examiner to take actions regarding
17 permit applications under the Shoreline Management Act and the SMMP. Section 18.25.490(2)
18 provides 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 appeals of decisions regarding applications for shoreline permits. Section 18.25.490(1). If the
21 County concluded that there is no appeal to the appellate hearings examiner on shoreline
SHB 05-029
ORDER ON MOTIONS
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1 permitting 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 Hearings
,
4 Board, that section applies only after receipt of the final order. Respondents' suggestion that
5 Section 18.25.690 allows appeals directly from the Hearing Examiner to the Shorelines Hearings
6 Board would make language in Section 18.25.48q superfluous. When interpreting legislative
7 enactments, they should be read to give each word and clause effect so no part is rendered
8 meaningless or superfluous. Hangartner v. Seattle, 151 Wn.2d 439,451,90 P.3d 26 (2004). It
9 also fails to recognize that Section 18.25.510(8) authorizes a person aggrieved by an action taken
10 on an application may appeal the decision in compliance with Section 18.25.680 and 18.25.690.
11 (emphasis added). Section 18.25.680 authorizes appeals before the Jefferson County Hearing
12 Examiner. As discussed earlier, Section 18.25.490 establishes the Board of County
13 Commissioners as an appeals board from Hearing Examiner decisions.
14 Trendwest also argues that other rules of statutory construction, including "the specific
15 controls over the general", should make the SMMP supersede the LUPO. Although this is a
16 widely recognized rule of statutory construction when two provisions cannot be harmonized,
17 Omega National Insurance Company v. Marquardt, 115 Wn.2d 416, 425, 799 P.2d 235 (1990),
18 in this 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 controls over the more general and earlier enacted provisions of the SMMP. In addition, if
21 statutory provisions conflict, the more specific and latest in order controls. State v. San Juan
SHB 05-029
ORDER ON MOTIONS
14
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1 County, 102 Wn.2d 311, 320, 686 P.2d 1073 (1984). Even ifthere is a question about
2 reconciling these two ordinances, Jefferson County expressly stated in Section 3 ofLUPO,
3 which is entitled "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 Hearing Examiner 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 permits to Ecology prior to the Commissioners' action,
10 it likewise would have been flawed because it was not a final decision by the County. Jefferson
11 County had not yet made a final decision regarding the SSDP in this case when the permit was
12 transmitted to Ecology prior to review by the Appellate Examiner, or alternatively, by the Board
13 of County Commissioners, acting as an appeals board.
14 A remand to the local government is usually the remedy in a case where there is a 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 permit, there is no final decision by a local
17 government sufficient to give the Board jurisdiction.
18
19
21
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SHB 05-029
ORDER ON MOTIONS
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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
.,-II
5 Done this i1 day of ~ 2006.
6
7
SHORELINES HEARINGS BOARD
8
;J~CY -r.~
WILLIAM H. LYNCH, ~ing
9
10
11
j(~Th6-b (\It j ~,
KATHLEEN D. MIX, Memb1
16
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JUDY ~N, Member
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KEVfN-RAN
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SHB 05-029
ORDER ON MOTIONS
16