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HomeMy WebLinkAboutLog043 e - Page 1 of 3 lo Barbara Nightingale From: Powers & Therrien [powers_therrien@yvn.com] Sent: Tuesday, June 20, 2006 3:31 PM To: Barbara Nightingale Cc: Powers & Therrien Subject: Re: CC & R Barbara: I hope there is such interest. I plan to attend. Les ----- Original Message ----- From: Barbara Nightingale To: Powers & Therrien Cc: LewisHale@aol.com ; Elizabeth Van Zonneveld ; Rick Rozzell ; AI Scalf Sent: Tuesday, June 20, 20063:21 PM Subject: RE: CC & R Les and All, I think these are points that citizens could perhaps raise at the June 26th BoCC workshop. Thanks for keeping me in the loop. 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: Powers & Therrien [mailto:powers_therrien@yvn.com] Sent: Tuesday, June 20, 2006 1:43 PM To: Barbara Nightingale Cc: Powers & Therrien; LewisHale@aol.com; Elizabeth Van Zonneveld; Rick Rozzell; AI Scalf Subject: CC & R Barbara: In mulling over the issues, another question comes to mind. The CC & Rs, at Exhibit C, contain a lengthy description of the matters upon which the PLVC is instructed to review projects proposed by the developer. These include "land uses" a concept that is keyed to the MPR Code and the Zoning Code. The last paragraph of the portion of Exhibit C so confirms. Section 5 of the CC & Rs confirms that the PL VC is authorized to pass on legality of any matter subject to review under Exhibit C. This is one such matter. In effect, the CC & Rs makes the PL VC an ARC with authority over each project of the developer requiring a land use decision until it has passed thereon and the land use decision affecting same has been made. Once these steps are taken, the property subject to the land use decision is free of further review by the PL VC. As we discussed, under the MPR Code, Ludlow Cove II is single family detached. Even as proposed by PLA and Trend West under the proposed amendment to the development agreement, Trend West would not be a permitted use. Assuming arguendo the definitional change actually mot~1I ~nd use laws in the # ~/"3 PSt'V:r' -;----"t*,f ~ . (: t':f~__L.~_____"; 1___ 7/7/2006 tit e Page 2 of 3 county, a matter with which I dissent, it would still not permit Trend West as a multifamily use to qualify. When AHE Galt found that the proposed Trend West use violated the zoning, whichever zoning applied, he remanded to determine what zoning would apply under the CUP. AI opined to me that HE Berteig's response does not have effect until and unless the LUPA petition is resolved. Petitioners, have not even scheduled a scheduling hearing thereon. Considering that Pope agreed to the zoning under the MPR Code as confirmed in its recitals and in the development agreement, I think the ultimate resolution of the matter will confirm that the property is zoned and vested single family detached. Consider what PLA is proposing. It asks Jefferson County to join it in amending the development agreement to define a Trend West resort as an allowed residential use. It hopes that the effect of that definition as applicable to Ludlow Cove II will permit a Trend West resort to qualify under a CUP issued on the zoning. It seems to me the problem is that the proposed amendment also amends the language of the CC & Rs in a way to change the zoning language which the PL VC is authorized to evaluate in connection with the Trend West project. If given effect, PLA hopes that it would make the proposed use "legal" for purposes of the CC & Rs. Yet, under Viking Property, the county cannot enforce the CC & Rs. It can modify them only if it offers compensation. The effect of the proposed amendment is to modify the CC & Rs. Doesn't this bring into play the requirement of RCW 36.70A.[ ] that property rights be honored and compensated? Doesn't it further require the county to proceed only by a condemnation proceeding in which it must show a public purpose? I don't think "public purpose" is satisfied by more property taxes. It is clear to me both under Viking Property and Riss that the Court looks with favor on the exercise of an ARC of architectural and legal review as protective of property interests and as a property interest. Here, the affected property is the MPR as a whole. It is the property subject to the CC & Rs. It is in the interest of the residents that the PL VC, its elected representative body undertake a review of proposed uses. While a review of some aspects of the project was undertaken before its initial submission to the HE Berteig, the review predated the determination of AHE Galt that the proposal violated zoning. It did not take into consideration the current proposal which not only affects zoning but also vesting rights of the community in the MPR Code. Surely the result of the approval of the proposed amendment will adversely affect such rights and the value of property in the MPR. There will no longer be effective land use protection for the community. While I do not know this value, I am reasonably sure an economist could calculate same. Again, ignoring the public purpose requirement, who is prepared to compensate the community for such value as required by Viking Property. It is clear that the new proposal has not been submitted to the PL VC. It has not had a chance to intervene by reviewing the project. I think an action which affects its ability to review the project prior to its approval by the county directly affects the CC & R giving right of review to the PL VC. I do not see the County's consideration of the CC & R issue as as enforcing the CC & R but rather as not violating or modifying it. As to the SSDP, has a copy of the application been sent to Jeff Stewart of the DOE for response. He already said the DOE disapproved the proposal. Here, while there is a new proposal, it substantively is the same and has the same effect to which Jeff Stewart objected. None of his criticisms have been met or could be met by the legal slight of hand proposed by PLA. I want to be sure that Mr. Stewart has the opportunity to respond. I raise these issues preliminarily. I will discuss them in greater detail during the open record period to this land use proposal. I appreciate your consideration of my views. I will send you a copy of the CC & R under separate cover. Thanks again, Les Powers & Therrien, P.S. 3502 Tieton Drive Yakima, WA 98902 Phone: 509-453-8906 Fax: 509-453-0745 This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. Section 2510-2521 and is legally privileged. This message and any attachments hereto is intended only for the use of the person named above. If you are not that person, you are hereby notified that any dissemination, distribution or copying of this email message other than to the addressee is strictly prohibited. If you have received this message in error, 71712006 e e Page 3 of 3 please immediately notify the sender and delete this email from your computer. 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