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HomeMy WebLinkAboutLog050 - e e ,j., June 26, 2006 JUN 2 6 2uuo Jefferson County Board of County Commissioners Re: Proposed Amendment to Ludlow Development Agreement Dear Sirs: The comments contained herein are preliminary and reflect the views of two of the three persons who were the prevailing appellants to AHE Galt of HE Berteig's opinion approving Ludlow Cove II as a Trend West resort (the "Trend West Proposal") and, with Jefferson County are two of three individual respondents in the LUPA Petition ofPLA and Trend West of AHE Galt's decision. AHE Galt determined that HE Berteig erroneously approved the Trend West Proposal because the Trend West Proposal is a transient use under applicable zoning law, either 1995 or 2000, Ludlow Cove II was zoned residential both in 1995 and 2000, and the Trend West Proposal was neither a permitted or permitted conditional use under such zoning. AHE Galt remanded to HE Berteig to determine the residential zoning classification of Ludlow Cove II. The final decision of Jefferson County is AHE Galt's decision. We object to any characterization of our position as in opposition to Jefferson County. We have significant questions whether the Trend West Proposal is compatible with the Port Ludlow MPR (the "MPR"). Currently it allocates 120 MERU to Trend West that will over time produce lower tax revenues due to the materially lower value of the small hotel suites compared to single family homes. Presently, for example, PLA and Trend West seek to distinguish the use from a hotel or resort and by that means avoid the hotel tax that would otherwise apply. In addition, the 120 units will not participate in either the SBCA or the LMC. This reduces the number of dues paying properties and reduces funding for local amenities that collectively serve the Ludlow Bay MPR. There will be a reduction of about $100,000 per year. On the other hand, persons using the Trend West Resort will clearly use the amenities, such as trails and beaches that are located in the MPR without a present understanding of how they will contribute to the costs associated therewith. Finally, no provision has been made in the proposal for additional police and fire protection that will obviously be required to handle a population, half of which will be composed of young people. The people who will use Trend West are transient. They stay for periods ofless than a week. They do not have ties to the facility or to the community. It is our view that HE Berteig erred and that AHE Galt correctly interpreted the zoning law that applies to Ludlow Cove II whether the measure is 1995 or 2000. The opinion on remand has no legal force as a result of the pending LUPA petition. It is further obvious that PLA and Trend West do not seriously contest either conclusioni. L (')~ ITEM # 5'O-V Page' j-U ( T ~ e e , They filed the LUPA petition of the fmal Jefferson County decision last December. LUPA requires an initial hearing on jurisdiction within 31 to 55 days and trial within 60 days thereafter. It is a summary proceeding. The petitioners must call the initial hearing. They have not done so. The reason is obvious. They believe they will not prevail. Hence, rather than risk a judicial determination, they seek to have the Jefferson County Board of County Commissioners (the "BoCC") change the rules to permit something that after careful consideration Jefferson County has rejected. We, with Jefferson County, are the respondents in the L UP A petition. Reference to us as appellants is an attempt to diminish the importance of AHE Galt's and Jefferson County's decision by trivializing it as the appeal of three lot owners. This characterization must be rejected. Reference is made in the recitals to the proposed amendment that PLA and Trend West will prevail in the collateral appeal of the Substantial Shoreline Development Permit (the "SSDP") that is associated with HE Berteig's opinion. That is not the case. The Shoreline Hearing Board ruled that Jefferson County failed to follow proper procedure in handling the SSDP by submitting it to the DOE prior to final action by Jefferson County. This robbed interested persons, including us, of the right to administrative appeal to AHE Galt. As a result, the SHB declared that the SSDP was not valid and remanded the permit application to Jefferson County. As in the case of the LUPA petition, PLA and Trend West seek to avoid administrative review of the Trend West Proposal's SSDP by including it as part of a consolidated permit application with the proposed amendment to the MPR Development Agreement (the "Development Agreement"). While the BoCC has the authority to approve amendments to the Development Agreement, it does not have the authority to do so in the manner proposed by PLA and Trend West. This is obvious from three separate standpoints. (a) An examination of AHE Galt's opinion reveals that it is based not on the Development Agreement but on the zoning ordinances in effect in 1995 and 2000. Mr. Galt found that under those ordinances, the proposed use of Trend West was transient and not residential and was not permitted as a CUP in an area zoned residential. His opinion applied without regard to the type of residential for which the property was zoned. Mr. Galt's opinion is further consistent with the Comprehensive Plan that identifies the property as zoned single family residential. Each of the zoning ordinances and the Comprehensive Plan are subject to carefully articulated protocols to amend any of their provisions. Amendments to the Comprehensive Plan occur on an annual cycle. See RCW 36.70A.130. At 1-3, the Comprehensive Plan recognizes this requirement. The proposal ofPLA and Trend West to amend their definitions to permit a Trend West use that is otherwise not permitted would effect an amendment thereto in a summary manner not meeting the conditions of any of those protocols. Rather, PLA and Trend West propose to use a protocol applicable to a private agreement between Jefferson County and PLA that has, at best, a summary review cycle not incorporating initial HE approval followed by administrative appellate review to the AHE, the procedure recognized under LUPO. .a e e .' (b) The MPR is an integrated planned unit development. It is a type of development generally described in RCW 36.70A.350 and specifically described in RCW 36.70A.360 and 362. Two critical features obtain: self containment as to public services and facilities and integration as to the development itself. By classifying the MPR as such, Jefferson County and PLA agreed that the MPR would be developed in accordance with the Comprehensive Plan and the MPR Zoning Code, the zoning ordinance adopted to implement the Comprehensive Plan provisions applicable to Ludlow. With exceptions, vesting under the land use laws in effect in 2000 was granted for developments occurring during the next twenty years. See Development Agreement Sec. 3.13. Thereunder, Ludlow Cove II is identified as single family detached residential. Multifamily and commercial and industrial use are not permitted. That PLA knew of this provision is clear from the map of the MPR included as Appendix 1 to the Development Agreement. It so identifies Ludlow Cove II. It is taken from the Comprehensive Plan. The vesting analysis that protects the rights of PLA in future development also affects the rights of the community that live in the MPR and bought lots and residences from PLA or Pope. They relied on the continuation of the zoning adopted under the MPR just as much or more than PLA. They are equally assignees and successors of Pope and PLA. Yet, the notion suggested by PLA is that only PLA is entitled to vesting. Those that bought from it are not. Moreover, PLA need not consistently follow vesting applicable in 2000. When it is not convenient, as here, it seeks Jefferson County's assistance in changing the vesting rules. The view that vesting rights in land use can be "cherry picked" was specifically rejected by the Court in E~st County Redevelopment Company v. Bjornsen, 125 Wn.App. 432,439,440 (2005). The problem is clear. What about the rights of the property owners in an integrated development that paid substantial sums and currently pay substantial property taxes on lots and units that are affected by a change in zoning adopted under the artifice of a change in the Development Agreement? Shouldn't they be entitled to "vest" in all of the property land use laws applicable to the MPR? Shouldn't the process of changing those rights be at least as formal as a change to the Comprehensive Plan? Why should there be a summary procedure to permit a modification of rights affecting the lot owners in the MPR, lot owners who bought from PLA or Pope in reliance on the vesting of land use laws in 2000? (c) The MPR is further subject to CC & Rs that vest architectural and legal control as it applies to architectural design and zoning of each new or land division proposed by PLA, any use requiring a land use permit from Jefferson County, in the Port Ludlow Village Council (the "PL VC"). See CC & R, Sec. 5 and Ex. C. These were prepared and recorded by Pope with the Development Agreement. They incorporate by reference land use laws applicable under the Development Agreement. In particular, they incorporate the results of forum discussions relating to the Development Agreement, the MPR Code and Development Agreement. They are based for definitions on the MPR Code which is itself an exhibit to the Development Agreement and on existing zoning law. They contain specific amendment provisions that require the consent of the PL VC and PLA to perfect an amendment. The result of the "slight of hand" change to the Development Agreement urged by PLA and Trend West changes specific zoning requirements recognized in Ex. C of the CC & Rs. There is a procedure under Sec. 5 if legal issues are implicated to have the matter reviewed under LUPA in the Superior .. e e .- Court. PLA has not submitted the issue to the PL VC. Clearly this matter requires a land use permit. It is submitted as a consolidated land use decision under LUPO. It has not been approved by the PL VC or for that matter even submitted to it, at least since Jefferson County declared the Trend West Proposal illegal under applicable zoning laws. By approving the amendment, the BoCC is amending the CC & Rs. The CC & Rs are property rights. They are exercised by and through the PL VC for the benefit of the residents that elect its members. In Viking Properties. Inc. v. Holm. 155 Wn.2d 112, 128, 130 (2005), the Supreme Court declared that such property rights can be abridged by government only if they are compensated. This notion requires that the rights be condemned. Condemnation further requires a public purpose. In the aftermath of Kelo v. City of New London (June, 2005), I do not think. anyone wants to advocate that tax revenue is a public purpose sufficient to condemn such rights. The procedure adopted here does not address this issue either as to the taking, the procedure for taking, the conditions of taking or the compensation for taking. As such, it is illegal. Perhaps an easier way to understand the situation is to consider the MPR as a shopping center with pads developed for stores. The shopping center is integrated. The stores support one another. There are land use rules that limit the type of stores that can operate in the center. For example, a movie theater might not be permitted because it causes parking problems. Enforcement of those rules lies with the tenants that own and operate the stores. The rules are not simply enforceable and changeable by the developer or its successor or by one or another store. Modification requires more. It requires concensus. Land use laws have some of the same characteristics, particularly where they apply to an integrated development. The persons who buy the lots have an expectation that the development will proceed in accordance with those land use rules. They buy in reliance on them. They have rights under them. Here, the rights are vested in a representative organization, the PL VC, that watches out for the enforcement of those rights for the benefit of the lot owners. If the rights are not enforced, the mix of the tenants or lot owner uses changes and the values of the remaining tenants or lot owners are economically affected. The rules apply both privately, as property rights under the CC & Rs and as a notion of due process under the vesting concept applicable to land use law in general. Here, for their own convenience, PLA and Trend West want to change the mix. Others who have bought from them are affected. Their rights should not be ignored. Sincerely, Leslie A. Powers, individually and for Lewis Hale