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Barbara Nightingale
From: Elizabeth Van Z [evz@cablespeed.com]
Sent: Wednesday, June 14,200610:13 AM
To: Barbara Nightingale
Subject: RE: Proposed Timeshare amendment to PLA property
Barbara,
The Amendment to Dev. Agreement to which I referred is No. 435975 - I am attaching it here.
Elizabeth
-----Original Message-----
From: Barbara Nightingale [mailto:bnightingale@co.jefferson.wa.us]
Sent: Wednesday, June 14, 2006 7:42 AM
To: Elizabeth Van Z
Cc: Jim Brannaman
Subject: RE: Proposed Timeshare amendment to PLA property
Elizabeth,
I don't think whether the MERUs are commercial or residential is written in stone and I don't think there is
anything to preclude them from being either commercial or residential. The 2250 MERUs for residential are a limit
placed on the number of residential units but I don't believe there is necessarily any requirement that these be
residential versus commercial.
There have been no changes to the revised suggested Development Agreement Amendment that I sent you
awhile back, defining and allowing timeshare. No new amendments have been received by this office.
As far as the question about the Council input, there will be a public hearing before the commissioners make any
decision. The hearing will be an opportunity to present the Council's recommendation. The public comment
period, with the notice of application, is also an important time to submit comments, which should start very soon.
I would think that Council input would likely be part of what the Hearing Examiner considers before he makes
recommendations to the commissioners.
Just a note: The Auditor's File Number for the Development Agreement is 435974.
Barbara Nightingale M.M.A.
Associate Planner
Port Ludlow Master Planned Resort
Jefferson County
Dept. of Community Development
360-379-4472
bnightingale@co.jefferson.wa.us
From: Elizabeth Van Z [mailto:evz@cablespeed.com]
Sent: Tuesday, June 13, 2006 1: 13 PM
To: Barbara Nightingale
Cc: Jim Brannaman
Subject: Proposed Timeshare amendment to PLA property
Dear Barbara,
LOG ITEM
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I have heard two conflicting versions of the handling of this amendment to the Development Agreement. First,
changing the allowed use to include Timeshares of the units to be built would still count those units as residential
units. Second, I was told that these units would be considered commercial MERU's , and counted from the 325
allowable commercial MERU's in the MPR. Could you enlighten me about that? In view of AHE Galt's decision
that this is transient lodging, which by state law defines it as commercial, this is a fairly important distinction.
I would also like to know if there have been any additional changes to the proposed amendment since you sent
out the marked up copy last week. The Community Development Committee of the PLVC will be reviewing this
amendment later this week to determine a position which they will then recommend to the Council for
consideration.
When the CD committee meets, we will also be reviewing the Council's responsibility resulting from an
amendment to the Development Agreement recorded under Auditor's file No 439575. PL VC is part of the review
process, but there are no provisions in the public notice schedules for council decisions. We have met with PLA
to discuss this process, are getting an opinion from an attorney to clarify our role, and will look forward to meeting
with you and AI to improve this process for future projects as well.
I'll look forward to hearing from you before Friday morning if at all possible.
Sincerely,
Elizabeth
71712006
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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.1, Phase 1, recorded
in Volume 8 of Plats, pages 1 through 6 inclusive, records of Jefferson County,
Washington.
Assessor's Property Tax Parcel Account Numbers:
968 800 102
Reference to Related Document:
A.F. No. 435974 (original agreement)
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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 of RCW 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 of land, 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 subject to 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. S 04-029. 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,
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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 of Tract E is protected by the vested rights doctrine, (3)
binding site plan and building permit 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 use 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 and does 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 environmental review of timeshare structures and uses within Tract E under
the State Environmental Policy Act, RCW Chapter 43.21C, was completed in connection with
the environmental review of the impacts of the timeshare proposal In Re Application by Port
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Ludlow Associates, County File No. SUB05-00004/SDP05-00002, which environmental review
is hereby adopted and incorporated herein by this reference as authorized under RCW
43.21C.034.
K. The Countv finds that the timeshare structures and uses monosed 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 of the 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. Defined 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.
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e. "Tract E" means Tract E as depicted on the Plat of Ludlow Cove Division
No.1, Phase 1, recorded in Volume 8 of Plats, pages 1 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
substantial develooment oermit decision of the Jefferson Countv Hearinl! Examiner dated
Seotember 2. 2005. In Re Avvlication bv Port Ludlow Associates. Countv File No. SUB05-
00004/SDP05-00002. which are incoroorated herein bv this reference and are not modified bv
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 nine (9)sixteen (6) units oer !!fOSS
acre of land. which units may comorise Timeshare Units, multi-family residential dwelling units,
andor single-family residential dwelling units. orovided. however. that in consideration of the
makinl! of this Amendment PLA a!!fees to limit the maximum densitv to nine (9) units per gross
acre of land.
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.
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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, shall be governed by the Development Standards.
1. Tract E shall be developed in a maximum of one (1) phase.
3. MERU's. As of the effective date of this Amendment, the Port Ludlow MPR 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 MPR is
2,575 MERU's, with a residential unit maximum of 2,250, 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, certified mail postage prepaid, return receipt requested, and addressed as follows:
To the County:
Al 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, W A 98365
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cc:
Randy Verrue
HCV Pacific 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 9810 1
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
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APPROVED AS TO FORM:
Prosecuting Attorney
Al Scalf
Director of Community Development
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PORT LUDLOW ASSOCIATES LLC, a
Washington limited liability company
By
Its President
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OLYMPIC WATER AND SEWER, INe.
By
Its President
EXHIBITS:
A Tract E Drawing
STATE OF W ASlllNGTON )
) 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 and official seal the day and year
first above written.
NOT AR Y PUBLIC in and for the State of Washington,
residing at
My appointment expires
Print Name
STATE OF W ASlllNGTON )
) 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 of Olympic Water and
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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.
NOT AR Y 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.
NOT AR Y PUBLIC in and for the State of Washington,
residing at
My appointment expires
Print Name
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