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HomeMy WebLinkAboutLog049 e e Page 1 of 2 , Barbara Nightingale Sent: To: Cc: From: Powers & Therrien [powers_therrien@yvn.com] Saturday, June 24,200612:22 PM AI Scalf Powers & Therrien; Barbara Nightingale; Elizabeth Van Zonneveld; Terry and Shelley o'brien; Tom Stone Subject: Letter in Response to Proposed Amendment to Development Agreement AI: I was reading PLA's submissions in preparation for Monday's workshop. I noted that Recital D to Proposed Amendment No.1 makes reference to HE Berteig's response to AHE Galt's remand on the issue requesting a determination of the zoning of Ludlow Cove II. When HE Berteig's opinion issued, I asked you when it was ripe for appeal or reconsideration. You informed me that it would have effect if, when, and to the extent determined by the Superior Court in response to PLA's and Trend West's LUPA petition of AHE Galt's opinion. You have not informed me of the commencement of any reconsideration or appeal rights under the remand opinion. I do not want the BoCC left with the impression that the remand opinion has any weight until the disposition of PLA's and Trend West's LUPA Petition, notice to interested parties, including me, of my reconsideration and appeal rights, and the exercise or lapse of those rights within the period so indicated. I think this is as important as the procedure that applies to the approval of an SSDP. As you know, Rick Rozzell and I successfully appealed the related SSDP to the Shoreline Hearing Board on that procedural issue. As I indicated to you, I intend to appeal HE Berteig's decision on remand. Based on the foregoing, I must dissent any consideration of HE Berteig's opinion on remand urged in Recital D. My position remains that Ludlow Cove II is properly zoned single family detached under the MPR Code and the Comprehensive Plan and that the vesting rights to which HE Berteig avers were waived by Pope Resources by entering the development agreement that adopts and confirms vesting under the MPR Code. I quote from Section 3.13 of the development agreement: "All development proposed on Pope Property shall be vested to and governed by the Port Ludlow MPR chapter of t he Jefferson County Zoning Code (as defined in Section 3.1 and Appendices A-F)..." The only exception relevant here is the Ludlow Bay Village Plat, the separate status of which is recognized at Section 3.15 of the development agreement. Pope Resources and Jefferson County approved and signed the development agreement. PLA is trying to use just that agreement, wrongly in my opinion, to effect a zoning change on Ludlow Cove II in the matter currently before the BoCC. If PLA asserts the right to amend zoning law by a procedure set forth in the development agreement, how can it deny the effect of the same development agreement in modifying vested rights it may have had in the zoning of Ludlow Cove II prior to its entry into the development agreement? The position taken by PLA and Trend West seems to be a variant of a similar attempt selectively to claim vested land use rights eschewed by the Court in East County Reclamation Company v. Bjornsen, 125 Wn.App. 432, 436, 437 (2005). Parenthetically, I note that HE Berteig's 2002 opinion on the Ludlow Cove property which adopts provisions of the UDC and provisions of 1995 land use laws is flawed under the analysis of East County. For reasons set forth in that decision, "cherry picking" the development agreement should not be permitted. I wish to bring to your attention that Mr. De Sa e Silva misapprehended the position of the Shoreline Hearing Board on PLA's SSDP application and Mr. Rozzell's and my appeal thereof. Contrary to the statement in Mr. De Sa e Silva's letter, the SHB found that Jefferson County had not approved the SSDP application by final action, that accordingly there was no valid SSDP which could be approved by the DOE or appealed to the Shoreline Hearing Board, and the matter is remanded to Jefferson County for approval or denial consistent with requirements under LUPO applicable thereto. I note that while PLA's and Trend West's LUPA petition remains pending and has not been dismissed, neither has even scheduled timely the preliminary jurisdictional hearing that was required months ago. It is clear that PLA and Trend West are not actively pursuing the LUPA Petition they filed. Rather, having received adverse decisions first from Jefferson County through AHE Galt on the substantive CUP and from the SHB on the SSDP required to execute the CUP and having failed directly and in a straightforward fashion to address the issue of zoning for Ludlow Cove II by seeking an amendment to the Comprehensive Plan or a zoning change, PLA and Trend West seek to resolve the matter by creating a defacto amendment to the zoning LOG1~~prehensive Plan by # 4. 'L-.:---> 71712006 page_ -L__of~ e . Page 2 of 2 * al'fending the development agreement, a private agreement between Jefferson County and PLA. This certainly would throw the vested rights of persons living in Jefferson County in land use in a cocked hat and would call to question the meaning of the Comprehensive Plan and the Zoning Code. I think focus should be directed upon AHE Galt's decision. It is the final decision of Jefferson County unless it is modified in response to PLA and Trend West's LUPA petition. It applies without regard to the issues sent on remand to HE Berteig. It decided, without regard to the zoning code, that in effect in January, 1995 or that in effect in August, 2000, the proposed Trend West use is not residential. The decision is not based on the development agreement at all. It is based on the zoning codes. How then can an amendment to the development agreement affect AHE's decision? Moreover, I note that the proposed amendment permits time share use to qualify as residential. Trend West is not proposing a time share facility. The definition of a time share contained in RCW 64.36.010(11) requires that the owner have 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. As I understand it, Trend West "investors" have receive points that they can use to obtain the use of any of the six thousand or so units in the vacation club depending upon value and availability. Those units in higher demand require more points or money consideration for use. There is no relationship between the units that would be built at Ludlow and any such investor. Trend West is not selling statutory time shares. As correctly noted by Trend West's architect, the Trend West facility is a hotel or resort providing transient housing. There are a series of thorny questions raised by the proposal. I cannot see why Jefferson County permits these proposals to be advanced without first concluding that they meet code requirements. These issues should be resolved by a petition for a code interpretation. That petition should be filed by PLA and Trend West. There is a procedure in place to consider all such issues, issues such as the effect of amending the development agreement on the Comprehensive Plan and the zoning code, the definition of time share for purposes of each, and the like. A fee must be paid. There is an appeal process, all of which proceeds through an HE and AHE. LUPA is available as to the final decision. Only after these legal issues are resolved, is this matter ripe for submission to the BoCC. I strongly object to the proposed process which eliminates legal vetting that would result from the use of the proper process. Thanks for your consideration. Please make this letter part of the log and provide a copy to the BoCC for its consideration. Please let me know when the opinion on remand is ripe for reconsideration or appeal so that I can respond thereto. Les Powers 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. 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