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tp,EARBORN & MOSS P.L.L.C~
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Attorneys at Law
July 14, 2006
RJECEIVJED
JUL 1 7 2006
JEfFERSON COUNfY DCD
Stephen KCasseaux:, Ir.
Jefferson County Hearing Examiner
c/o Barbara Nightingale, Lead Planner
Jefterson County Community Development Department
621 Sheridan
Port Townsend, WA 98368
Re: Amendment No. 1 to Port Ludlow Development Agreement
Dear Mr. Casseaux::
We represent Lewis Hale, a property owner in Port Ludlow resort and party to the
proceedings relating to the Ludlow Cove Division 2. On behalf of Mr. Hale, we submit
comments on the amendment to the Port Ludlow Development Agreement (PLDA)
proposed by Port Ludlow Associates, LLC (pLA) for the benefit of Trendwest Resorts,
Inc. (Trendwest).
SUMMARY OF COMMENTS
PLA seeks to amend the PLDA to permit time share units in Tract E of the Port Ludlow
Master Planned Resort (MPR). There is a problem: an amendment to the PLDA cannot
and will not accomplish this purpose. The PLDA specifies that the Port Ludlow Master
Plan Resort (MPR) is subject to MPR Zoning Code, now codified in Title 17 Jefferson
County Code (JCC). The MPR Zoning designated Tract is a MPR.SF, a zone which
does not allow multi. family or time share units. An amendment to the PLDA cannot
authorize a use prohibited by the MPR Zoning Code. The MPR Zoning Code has to be
amended or Tract E rezoned to a zone which permits time share units.
Alternatively, PLA could demonstrate that its proposal is vested to a prior code which
does allow time share units. There is a problem with this approach as well: the
County's Appellate Hearing Examiner (Appellate Examiner) has found that the prior
code did not permit time share units in Tract E. Jefferson County Appellate Hearing
Examiner Decision on Ludlow Cove Division 2, File SUBOS.OOO04, (Galt Decision).
In December, 2005 PLA appealed Appellate Examiner's decision to Superior Court.
However, it has not prosecuted its appeal. Rather, in sprin& 2006, it chose to try to
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~ Stephen K. Casseaux, Jr.
July 14, 2006
Page 2
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RECEr\TED
JUL 1 7 2006
circumvent the Appellate Examiner's decision by amending the PLDA.1 ~f6~~<OO UNIT D CO
us back to the first problem: the PillA amendment won't accomplish this. Only an
amendment to the MPR Zoning Code or a rezone will.
The PLDA provides that the MPR is subject to the Land Use Procedures Ordinance
adopted by Ordinance 04-0828-98 (LUPO). Despite this provision, we understand that
staffhad determined that the application should be processed under Title 18 as a
recommendation by the Hearing Examiner to the Board of Commissioners
(Commissioners). We ask you to recommend that the amendment be denied for at least
four reasons:
(1) As explained above, it does not solve PLAts problem. The proposed use -
timeshare units - is predicated on vesting to the 1994 zoning code, the code that
preceded the PLDA. An amendment to the PillA cannot retroactively change
the 1994 code. To authorize timeshare units, the County must either amend the
MPR-SF zone, the zoning designation applied to Tract E by the PLDA, or
rezone Tract E.
(2) It conflicts with the final determination by the Appellate Examiner that the
1994 code does not permit time share units in Tract E. The Appellate Examiner
is the County's officer with the highest level of authority to make a
determination of uses permitted under the applicable development regulations.
(3) It conflicts with the statute authorizing and governing development
agreements, which requires that a development agreement:
(a) be consistent with applicable Jefferson County GMA
development regulations;
(b) set forth the development standards and other provisions that
govern and vest the development, use, and mitigation of the
development.
(4) It is inconsistent with the purposes of the PLDA to provide predictability
and certainty for residents of Port Ludlow, not just its developer.
Below we address each argument in more detail.
I The recitals to the proposed amendment make clear that PLA seeks to substitute the proposed new
development regulations for Tl3ct E for the regulations to which the 1995 applications were vested.
Proposed Amendment, Recital L.
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, Stephen K. Casseaux, Jr.
July 14,2006
Page 3
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RJE('1EJr'TED
JUL 1 7 2006
JEffERSON COUNTY DeD
Trendwest wishes to develop a 120-unit time share project on Tract E of Port Ludlow.
As required by RCW 36. 70B.170(1), the PLDA sets forth the development standards
and other provisions that govern and vest the development, use, and mitigation of
development of the MPR Those regulations are now codified in Title 17 JCC.2 They
apply the MPR-SF zone to Tract E , a zone which permits single family uses, but does
not allow either multi-family uses or transient accommodations. JCC 17.10.020-.030.
No one asserts that the proposed timeshare units are single family uses. Thus, the only
ways for the Trendwest proposal to proceed are: (I) for it to be vested to a Code which
permitted the desired use, timeshare units; or (2) to amend the regulations applying to
the MPR, not the development agreement.
DETAILED COMMENTS
The Problem
In its March 3, 2006 letter to the Board of Commissioners initiating the PLDA
amendment (pLA Letter), PLA recognizes the problem -- it states:
PLA and Trendwest believe that timeshare structure and uses are multi-family
residential structures and may be developed within Tract E to a vested density of
up to sixteen (16) timeshare units per acre of land. ..
PLA Letter, p. 2 (emphasis added); see also, proposed Amendment, Recital B.
Having conceded at least tacitly that its proposal requires vesting to the 1994 code, PLA
then asks that the Board ofComm.issioners to amend the PLDA to permit timeshare
units in Tract E. PLA Letter, p. 2. But amending the PLDA does not retroactively
amend the development regulations to which development of Tract E is vested. The
amendment, even if it were proper, would not solve PLAls problem.
Confounding matters further, PLA then contends that the PillA amendment does not
require an amendment to the MPR zoning code or comprehensive plan. PLA Letter, p.
2. We are baffled. As we have pointed out, the MPR code applies the MPR-SF to Tract
E. The MPR-SF zone does not allow either multifamily or timeshare units.
Consequently, the MPR-SF zone would need to be amended or the property rezoned to
permit timeshare units.
2 PLDA ~ 3.1; Jefferson County Appellate Hearing Examiner Decision on Ludlow Cove Division 2, File
SUB05..()()()()4, (Galt Decision), Finding 3.
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. Stephen K. Casseaux, Jr.
July 14, 2006
Page 4
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RIE("EIVEJD
JUL 1 7 2006
JHffRSON COUNTY Den
The County Has Rendered a Final Determination that the Regulations to Which Tract E
is Vested Do Not Permit Timeshare Units
Several years prior to the County's adoption of the PLDA, in January 1995, Pope
Resources, PLA's predecessor in interest, filed three applications: (1), SUB95-0003, a
subdivision; (2) ZON95-oo1, a conditional use permit for unspecified multifamily
residential development on Tracts A and B of Ludlow Code; and (3) SDP97-009 a
substantial development permit for the subdivision. The Coutity determined the
applications to be complete on January 19, 1995. When these applications ultimately
proceeded to a hearing in 2002, the Hearing Examiner found that, despite many
revisions, they remained vested to the regulations in effect in January, 1995 (referred to
herein as the 1994 Code). Tracts A and B were subsequently combined into Tract E.
Galt Decision, Findings 2-6.
In January, 1995 what is now Tract E was zoned G-l zone, a zone which allowed, as a
conditional use, multifamily development with a maximum density of 16 dwelling
units/acre. Galt Decision, Findings 5, 10, and 11; Conclusion 10. In 2002, the Hearing
Examiner approved the applications. Galt Decision, Finding 5.
Ten years later, in January, 2005 PLA submitted applications for a 120-unit
condominium development on Tract E. Galt Decision, Finding 8. In May, 2005 it
resubmitted the applications changing the proposed use to a 120-unit time share
multifamily development. Galt Decision, Finding 9. PLA and Trendwest took the
position that these applications were also vested to the 1994 Code, presumably as the
completion of the 2002 approvals.
However, the 1994 G-l zone did not permit transient accommodations. The Hearing
Examiner approved the 2005 applications, finding that time share units were a permitted
multifamily use and not a hotel or other commercial use. Galt Decision, Finding 11.
Our client appealed that decision to the Appellate Examiner, presenting the following
issue: whether the Trendwest Resort is a 'multi-family residential development' or
'transient accommodations. III Galt Decision, Finding 14. The Appellate Examiner
concluded that the proposed use was not a multifamily residential development and,
thus, was not permitted under the 1994 regulations to which the applications were
vested. Galt Decision, Conclusions 1 and 18-21. The Appellate Examiner is the
County's officer with the highest level of authority to make a determination of uses
permitted within the Port Ludlow Master Planned Resort. LUPO ~18.D.7; Galt
Decision, p.11.
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. Stephen K. Cassea.ux, Jr.
July 14, 2006
Page 5
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{~lE K,\TE D
JUL 1 7 2006
In December, 2005, PLA and Trendwest filed a petition under the Land mi~N,~OUNTY DLD
Act (LUP A), in Jefferson County Superior Court appealing the Appellate Examiner's
decision.3 In their application for the PLDA amendment, they argue that the LUP A
appeal (their own appeal) could delay the project significantly at feat expense to
themselves. However, they have not prosecuted the LUP A case.
In summary, the County has made a final determination that the 1994 Code to which the
1995 applications were vested and on which the 2005 applications depend does not
permit a timeshare use. PLA and Trendwest cannot change this result by amending the
PLDA.
Amending the Development Agreement Is Not Sufficient
The PLDA was adopted under chapter 36.70B RCW. Jefferson County Resolution 42-
00, (Resolution 42-00) Recital 4; PLDA, ~ 1.3.3. A development agreement must be
consistent with the applicable County GMA development regulations and must specify
the development standards to which the project is vested. RCW 36.70B.170.5
The permitted uses are set forth in the Port Ludlow MPR Zoning Code chapter of the
Jefferson County Code. PLDA, ~ 3.1. As we have pointed out several times above, the
MPR Zoning Code designates Tract E as MPR-SF, a zone which does not allow time
share units. Thus, for Trendwest to proceed, the County must amend the MPR-SF zone
to permit this use or rezone the property a zone which does allow time share units. In
either event, vesting is lost and the proposal is subject to all the current development
regulations. PLA and Trendwest cannot pick and choose between old and new zoning
codes.
3 PLA characterized these events as a dispute between 3 property owners within the MPR on the one hand
and PLA, Trendwest, and the County on the other band. March 3, 2006 letter from PLA to
Commissioners, p. 2. This attempt to belittle the other parties is not only irrelevant and unprofessional, it
is incorrect. For the purposes ofLUP A, the Appellate hearing Examiner is the County. It is PLA and
Trendwest who have a dispute with the County.
4 They have not even set the preliminary hearing date was supposed to have been held no more than 50
days after the filing of the petition. RCW 36.7OC.08O. Had they prosecuted their own case, they most
likely would have had a decision by now.
5 The Board of Commissioner found that the PLDA was consistent with the County's applicable GMA
regulations. Resolution 42-00, Recita16. See also. PLDA ~1.3.11.
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Stephen K. Casseaux, Jr.
July 14,2006
Page 6
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t idtll 'Y jl~
The Amendment Sought Contravenes Many Purposes of the PLDA
JUL 1 7 2006
JEffERSON COUNTY Den
The PLDA repeatedly emphasizes the importance of planning and predictability not
only to the parties to development agreement, but also the residents of Port Ludlow.
1. One of the stated purposes of the PLDA is to further the public health, safety,
and welfare by allowing development to take place in a predictable manner
consistent with the Comp Plan and MPR Code. Resolution 42-00, ~ 1.0
(emphasis added).
2. Coordinated planning of the MPR provides unique opportunities for the benefit
of the County and existing and future residents of the MPR. PLDA, ~ 1.3.9
(emphasis added).
3. Section 1.3.13 is instructive:
Build out of the Pope Property is expected to occur over the next ten to twenty
years. Pope, Jefferson County, Port Ludlow community groups and members of
the public at large will invest considerable time in the County permit and review
process for the future build out of the Pope Property. A development agreement
is an appropriate way of providing certainty over time with respect to permitted
densities, uses, development standards and other aspects of the development
reVIew process.
Time share units are not permitted by the MPR code. Permitting them now in an area
which has been designated for single family uses for more than six years hardly
promotes certainty and predictability for who have invested in Port Ludlow. Nor as the
records before the Hearing Examiner and Appellate Examiner demonstrate, does it
benefit them. Rather, as Mr. Hale argued to the Appellate Examiner, a time share
facility such as that proposed by Trendwest is not a facility where people live/reside and
become members of the community, but merely come to vacation. Each unit will be
occupied by up to 50 different families or groups of individuals each year. The impacts
to existing and future residents would be significantly greater than either the uses
permitted in the G-I zone or the single family uses permitted by the current zoning.
~
. C Stephen K. Casseaux, Jr.
July 14,2006
Page 7
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JR~ lT~f'\]EK~7ED
JUL 1 7 2006
JEffERSON COUNTY OLD
For all of these reasons, we ask that the Hearing Examiner recommend denial of the
PLDA amendment. IfPLA and Trendwest wish to build time share units, they should
prosecute their LUP A case or seek the proper approvals - an amendment to the zoning
code or a rezone.
a:-~
Alison Moss
Enclosures
1. Jefferson County Appellate Hearing Examiner Decision on Ludlow Cove
Division 2, File SUB05-00004.
2. March 3, 2006 letter to the Board of Commissioners initiating the PLDA
amendment.
3. PLDA.
cc: Lewis Hale (w/o enclosures)
Marco de Sa e Silva (w/o enclosures)
Don Marcy (w/o enclosures)
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BEFORE THE APPELLATE HEARING EXAMINER FOR
JEFFERSON COUNTY
IN THE MATTER OF THE APPEALS
OF LESLIE A. POWERS/RICHARD L.
ROZZELL AND LEWIS J. HALE
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DECISION
FILE: SUB05-00004
Ludlow Cove Division 2
DECISION SUMMARY
The Jefferson County Hearing Examiner's Decision is VACATED and REMANDED for
further proceedings in accordance with this Decision.
INTRODUCTION
Leslie A. Powers (Powers), 44 Heron Road, Port Ludlow, Washington 98365, joined by Richard
L. Rozzell (Rozzell), 41 Windrose Drive, Port Ludlow, Washington 98365 (C/o Powers &
Therrien, P.S., 3502 Tieton Drive, Yakima, Washington 98902) and Lewis J. Hale (Hale), 10552
15th Avenue NW, Seattle, Washington 98177, separately appeal from the September 2, 2005,
Decision of Irv Berteig, Jefferson County Hearing Examiner (Examiner), approving the Binding
Site Plan/Condominium Subdivision of Ludlow Cove Division 2 and an associated Shoreline
Management Act (SMA) Substantial Development Permit (SDP). Port Ludlow Associates LLC
(PLA), C/o Marco de Sa e Silva (de Sa e Silva), Davis Wright Tremaine LLP, 2600 Century
Square, 1501 Fourth Avenue, Seattle, Washington 98101-1688, is the project applicant.
The Powers/Rozzell and Hale appeals were assigned to Appellate Hearing Examiner (Appellate
Examiner) John E. Galt.
Throughout these proceedings Appellants Powers/Rozzell have been represented by Powers,
Appellant Hale has represented himself, the County's Department of Community Development
(Department) has been represented by Mike Bergstrom (consultant to the County), and Applicant
PLA has been represented by Donald E. Marcy, Cairncross & Hempelmann, P.S., 524 Second
Avenue, Suite 500, Seattle, Washington 98104-2323 (who is attorney for prospective developer
Trendwest Resorts, Inc. (Trendwest)).
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. APPELLATE HEARING EXAMu," ER DECISION
RE: SUB05-00004 (Power~/RozzeU and Hale appeals)
December 7, 2005
Page 2 of 22
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On October 14, 2005, the Appellate Examiner issued an Initial Appeal Guidance letter to the
Parties. (Log Item No. 175) That letter included the following statement:
Therefore, unless persuasive statutory, ordinance, or contractual evidence can be
presented to prove the contrary, I find that I have no jurisdiction over the SDP.
That being the case, argument regarding the merits of the SDP Decision will not
be considered.
Appellant Powers sought reconsideration of that statement. (Log Item No. 179) The Appellate
Examiner denied reconsideration in an Interlocutory Order issued October 31, 2005. (Log Item
No. 181)
On November 22, 2005, Appellant Powers sought an indefinite continuance of the scheduled
hearing. (Log Item No. 206) The Appellate Examiner denied that request by Order issued
November 23,2005. (Log Item No. 212)
The Appellate Examiner held a consolidated closed record appeal hearing on November 29,
2005. The Department gave notice of the closed record hearing as required by applicable
regulations. (Log Item No. 1 QO) Appellants Powers/Rozzell, Appellant Hale, and Applicant PLA
submitted prehearing written argument. 1 (Log Item Nos. 1298, 200, and 199, respectively) The
Department issued Staff Ri;,;portS. (Log Item Nos. 210 and 211) The record made by the
Examiner below (Log Item Nos. 1 - 166), as well as those documents generated during the
appeal process (Log Item }\~os. 167 - 212), were entered into the record of the closed record
appeal hearing.
The action taken herein ar.'} the requirements, limitations and/or conditions imposed by this
decision are, to the best of the Appellate Examiner's knowledge or belief, only such as are lawful
and within the authority of C) Appellate Examiner to take pursuant to applicable law and policy.
FINDINGS OF FACT
1.
The proposed Ludlow Cove Division 2 is located within that portion of Jefferson County
known as the Port Lu.dlow Master Planned Resort (Port Ludlow MPR). (Log Item 144, p.
7, Finding 1 2) "The project site lies between Paradise Bay Road and Port Ludlow Bay,
east of the Village Center." (Log Item No. la, p. 5)
2
As a result of a challenge raised by PLA (by and through Mr. Marcy), the Examiner ruled orally during the
closed record hearing that Exhibit 1 to the Powers/Rozzell hearing brief (Log Item No. !) constituted new
evidence which could not be considered in adjudicating the closed record appeaL Although the Exhibit was
not physically removed from the record, it has not and will not be considered.
Log Item citations are provided for the reader's benefit and indicate: 1) The source of a quote or specific
fact; and/or 2) The major document(s) upon which a stated fact is based. While the Appellate Examiner
considers all relevant dor,uments in the record, typically only major documents are cited. The Appellate
Examiner's Decision is bac;ed upon all documents in the record.
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, APPELLATE HEARING EXANld-lER DECISION
RE: SUB05-00004 (Powers/Rozzell and Hale appeals)
December 7, 2005
Page 3 of 22
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2. In January 1995, Pope Resources (Pope), PLA's predecessor in interest, filed three
applications which the Department deemed to be complete as of January 19, 1995 (the
1995 Applications):
A. SUB95-0003, Ludlow Cove, a subdivision of 27.75 acres into 24 lots for single
family residential use and two tracts "(Tracts A and B) consisting of 15.65 acres
'" proposed as future residential development tracts." (Log Item No. la, p.25,
Finding 2 3) That application apparently also included two variance requests, one
for right-of-way width and one for setbacks. (Log Item No. la, p. 24)
B. ZON95-0001, a Conditional Use Permit (CUP) for Tracts A and B seeking
unspecified multifamily residential development approval. (Log Item No. la, p.
24)
C. SDP97-0009, an SDP for the subdivision. (Log Item No. la, p. 24)
The 1995 Applications were revised in July and December, 1997, March, 1999, January,
2000, and November, 2001. (Log Item No. la, p. 42)
3. On or about May 8, 2000, Pope resources entered into the Port Ludlow Development
Agreement (PLDA), executed pursuant to Board of County Commissioners (BoCC)
Resolution No. 42-00. The PLDA provides that development applications within the Port
Ludlow MPR are "vested to and governed by the Port Ludlow MPR chapter of the
Jefferson County Zoning Code (as defined in Section 3.1 and Appendices A-F) ..." for
the term of the PLDA, which is 20 years. (PLDA, S 3.13, underlining in original, and S
4.22)
Appendices A - F are listed on page 17 of the PLDA: Appendix A is the MPR chapter,
Ordinance No. 08-1004-99, later codified as Title 17 JCC (MPR Code); Appendix B
contains Port Ludlow MPR comprehensive plan policies, Resolution No. 72-98;
Appendix C is the Stormwater Management Ordinance, Ordinance No. 10-1104-96;
Appendix D is the Interim Critical Areas Ordinance (ICAO), Ordinance No. 05-0509-94
as amended by Ordinance No. 14-0626-95; Appendix E is the Land Use Application
Procedures Ordinance (LUPO), adopted by Ordinance No. 04-0828-984; and Appendix F
is the Shoreline Master Program. LUPO included Rules of Procedure (RoP) for the
Examiner and Appellate Examiner. 5
4
Log Item No. 1a consists of several documents. The page numbers cited herein are the page numbers
assigned to the Log Item, not the page numbers of the individual component documents. For example, the
Examiner's August 2,2002, Decision encompasses pages 22 - 40 in Log Item 1a and page 25 of Log Item
1a is page 4 in that Decision.
LUPO was later repealed by Ordinance No. 11-1218-00 when the County adopted a Unified Development
Code (UDe). (See Ordinance No. 01-0203-03.) LUPO remains in effect for development within the Port
Ludlow MPR, however.
The BoCC adopted new RoP after adoption of the UDC. (Ordinance No. 01-0203-03) Those RoP do not
apply to applications subject to the PLDA.
5
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.. APPELLATE HEARING EXAlVJ il'-lER DECISION
RE: SUB05-00004 (Powers/Rozzell <:nd Hale appeals)
December 7, 2005
Page 4 of 22
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Pope sold its interest in Port Ludlow to PLA in 2001. (Stipulation at hearing; see also
Log Item No. 199, p. 2, ll. 18 and 19)
4. The 1995 Applications came on for hearing before the Examiner on July 16, 2002. (Log
Item la, p. 22) The July 10, 2002, Department Staff Report (1995 Staff Report) to the
Examiner advised that the applications were deemed complete as of January 19, 1995,
(Log Item No. la, p. 42) and that "the revised environmental checklist dated November 8,
2001 indicate [sic] tl:.at initially 24 lots will be developed and that tracts A & B mayor
may not be developed for an additional 64 residential units." (Log Item No. la, p. 46)
The 1995 Staff Repcrt indicated that the "Jefferson County Zoning Code classifies the
site and the area to the south, northeast and a portion of the property to the north as
'General Use' (G-1)." (Log Item la, p. 44)
The 1995 Staff Repo~,i also stated that "The Conditional Use Review Criteria and the
Development Standards for Multi-Family Residential of the Zoning Code will apply to
the future developm'mt of Tracts A and R" (Log Item No. la, p. 57, ~ 66) In the
subsequent paragraphs, the 1995 Staff Report stated that the CUP review criteria of
Zoning Code Section 7.30.1 and the CUP Site Development Standards of Zoning Code
Section 7.40 applied to the application and that "the proposal has been conditioned to
assure compliance with these" criteria and standards. (Log Item No. la, p. 58, ~~ 67 and
68) The 1995 Staffrteport does not include any discussion of any specific plan for the
development of Tracts A and B. (Log Item la, pp. 41 - 64)
5. On August 2,2002, tbe Examiner issued his Decision on the 1995 Applications (the 2002
Decision). (Log Item No. la, pp. 22 - 40) The 2002 Decision begins with the following
statements:
These applications are unique because they were filed as
"substantially complete" on January 19, 1995. The Department has
monitored tb applications' review progress, and agrees with the
Applicant tha': applications are vested in the adopted plans and regulations
in place at th'" time of complete application. Although there were revisions
in 1997, 1999. 2000 and 2001, those revisions did not cause the
applications to bse their vesting status.
(Log Item No. la, p. 22) The Examiner "accepted" the Department's position on vesting
of the 1995 applicatkns. (Log Item No. la, p. 27, Conclusion of Law 1) The Examiner
stated that the 1995 :tpplications were subject to Port Ludlow Interim Urban Growth
Areas Ordinance No. 01-0117-95, Jefferson County Hearing Examiner Ordinance No. 1-
0318-91, the Mardl 7, 1989, Shoreline Management Master Program, State
Environmental Policy Act (SEP A) Implementing Ordinance No. 7-84, Jefferson County
Critical Areas Ordiml;lce No. 05-0509-94, and Jefferson County Zoning Code Ordinance
No. 09-0801-94. (LcJ Item No. la, p. 25, first Finding 2) The Examiner found that
"Phasing or division:: ,1:'e contemplated." (Log Item la, p. 25, second Finding 2)
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APPELLA TE HEARING EXAMH'IlER DECISION
RE: SUB05-00004 (Powers/Rozzell and Hale appeals)
December 7, 2005
Page 5 of 22
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The Examiner stated that phased SEP A review was being applied and that "detailed
environmental review on the future development of Tracts A & B will be conducted
when that phase ofthe proposal is ready." (Log Item la, pp. 26 and 27, Findings 7 and 8;
quote from Finding 8)
The 2002 Decision does not include any discussion of any specific plan for the
development of Tracts A and B. (Log Item No. la, pp. 22-40) The 2002 Decision does
discuss a requirement of Ordinance No. 09-0801-94 that a permittee "must implement
that CUP within one year of approval." (Log Item la, p. 26, Finding 5) The Examiner
noted that "the one-year time limit could easily expire. ... The Applicant suggests that the
current regulations should be applied, which allow a 3-year minimum with extensions."
(Id.) The "current regulations" referred to the Jefferson County Unified Development
Code (UDC) as the same existed in 2002. (Log Item No. la, p. 28, Conclusion of Law 6)
The Examiner then concluded as follows:
7. The Applicant's arguments for applying the current UDC
Maximum Duration time limit of 3 years plus a possible I-year extension
are valid. The UDC Maximum Duration provision only will be applied to
Tracts A & B.
8. In accordance with Staff recommended Findings 67 and 68, all the
provisions of Section 7.30 and development standards of Section 7.40 are
or will be met with conditions."
(Log Item 1 a, p. 29)
The Examiner approved the 1995 Applications subject to a total of 65 conditions. (Log
Item No. la, pp. 30 - 40) One condition, No. 65, refers expressly to the CUP for Tracts A
andB:
The application was initially submitted in 1995 and is vested under the
ordinances in effect at the time of submittal. The Port Ludlow Master
Planned Resort Code was adopted effective October 4, 1999. At the time
of application submittal, the Jefferson County Zoning Code was in effect.
The Site Development Standards for Multi-Family Residential of Section
7.40.1(a,b,c,d, and e) would apply under vesting.
The current provisions of the Uniform Development Code [UDC] for
determining Maximum Duration of the Condition [sic] Use Permit for
Tracts A & B shall apply as follows:
(1) The applicant shall initiate the SEP A portion of Phased
Review for Tracts A & B within three (3) years of the effective
date; and the applicant shall submit a complete application for a
building permit(s) for Tracts A & B within one (1) additional year.
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APPELLATE HEARING EXAM i l.JER DECISION
RE: SUB05-00004 (Powers/Rozzell and Hale appeals)
December 7, 2005
Page 6 of 22
(2) The Maximum Duration shall not count time devoted to the
SEP A portion of Phased Review, in accordance with UDC 8.10.5.
Initiation of SEP A Review; Limitation on ACtions During Review.
(Log Item la, pp. 39 and 40)
6. Phase 1 of Ludlow Cove Division 1 was recorded in December, 2003. Phase 1 consisted
of eight single family residential lots and Tracts B - E. (Log Item No. la, pp. 16 - 21)
Former Tracts A and B were combined and recorded as Tract E, containing 14.66 acres.
Phase 2 as subsequently recorded contained nine more single family residential lots, for a
total in both phases of 17 (rather than the approved 24) such lots. (Stipulation at hearing;
see also Log Item No. 124, p. 3)
7. In 2004, PLA proposed to sell Tract E to Trendwest. (Stipulation at hearing; see also Log
Item No. 199, p. 3, 11. 3 and 4)
8. On January 13, 2005, PLA submitted a Master Permit Application (See Log Item Nos. 4,
5, and 12 - 16.) for "Ludlow Cove Division 2 - 120 unit condominium development
within Port Ludlow MPR". The Master Application covered Variance, Binding Site Plan
(BSP), and SDP applications (the 2005 Applications) affecting Tract E. (Log Item No.5,
p. 1) The applications were assigned County file numbers SUB05-00004 and SDP05-
00002. (Log Item No. 144)
A separate BSP application described the proposal as "a 120-unit condominium
development situated on a 14.66 acre site known as Ludlow Cove Division 2." 6 (Log
Item No. 16, p. 1)
9.
On May 9, 2005, PLA re-submitted its applications, specifying that the BSP was for four
lots and describing the project as "a 120-unit time share multifamily development". 7
(Log Item No. 70; see also Log Item Nos. 68, 71, 72, and 74)
6
Section 11 of Jefferson County Subdivision Ordinance No. 04-0526-92 contained regulations relating to
"Condominium Divisions.' Section 11 constituted "a 'binding site plar.process' for divisions of land into
lots or tracts, as permitted by RCW 58.17.040(7), when the improvemeats to be constructed thereon will be
included in one (l) or more condominiums or owned by an association or other legal entity in which the
owners of units therein, or their owner's associations, have a membership or other legal or beneficial
interest." Section 11 c0l1t2ined no expficit requirement to depict proposed buildings on application
materials. (Log Item No. 124, pp. 13 and 14, ,-r 48) Section 58.17.040 RCW lists exemptions from the
subdivision requirements of Chapter 58.17 RCW. Thus, the BSP process is essentially a form of land
division which is exempt from standard subdivision requirements.
The 120 unit development has been variously described in record documents as a "condominium" (Log
Item Nos. 4, 5, 15, and 16), a "time share multiple family development" (Log Item No. 70), a "120-unit
multiple family development" (Log Items No. 72 and 74), and a "120-unit time-share multiple family
residential development" (Log item No. 124).
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10. The 2005 Applications came on for hearing before the Examiner on August 16, 2005.
(Log Item No. 144, p. 1) The July 26,2005, Amended Final Department Staff Report (the
2005 Staff Report) noted the original 1995 subdivision and CUP file numbers as well as
the two 2005 file numbers, but stated that only BSP and SDP approvals were required.
(Log Item No. 124, p. 1) The 2005 Staff Report stated that "[t]he multifamily component
of Ludlow Cove, i.e., this project - Ludlow Cove Division 2, was conditionally approved,
subject to future SEP A review" in 2002. (Log Item 124, p. 2, ~ 5) The Staff stated that
"[t]he site is currently zoned for single family residential development according to the
MPR Code, ordinance #08-1004-99, but was zoned G-l for General Use when the
original Ludlow Cove proposal was submitted." (Log Item No. 124, p. 3, ~ 11)
The Ludlow Cove Division 2 proposal would develop a 120-unit time-
share multifamily residential project on 14.66 acres situated within the
Port Ludlow Master Planned Resort urban growth area in Jefferson
County. The proposed project would include six multifamily time-share
residential buildings, one reception/recreation building, a private road
system, recreational amenities such as a private swimming pool,
barbeques, spas, and public and private trails.
(Log Item No. 124, p. 4, ~ 14)
The four lot [BSP] proposal reflects a phasing plan for construction of the
seven buildings. The first phase will contain only the recreation building
(building 7) and four parking spaces. Phase 2 includes buildings 1 and 2
and the associated parking. Phase 3 contains buildings 3 and 4 and
associated parking, and phase 4 contains the last two buildings (5 and 6)
and their parking.
(Log Item No. 124, p. 5, ~ 16) The 2005 Staff Report stated that the 2005 Applications
were vested to 1995 regulations. (Log Item No. 124, pp. 7 and 8, ~~ 21 and 22) The 2005
Staff Report contained an analysis of compliance with 1995 CUP multiple-family
development standards (Log Item No. 124, pp. 10 and 11, ~~ 35 -40), but not with 1995
CUP review criteria.
11. On September 2, 2005, the Examiner issued his Decision on the 2005 Applications (the
2005 Decision). (Log Item No. 144) The Examiner stated that BSP/Condominium
Subdivision and SDP approvals were being sought. (Log Item No. 144, p. 1) The
Examiner found that "the property was vested to the land use controls that were in effect
on the date that the 'Ludlow Cove' applications were submitted in 1995." (Log Item No.
144, p. 10, Finding 10) He further noted that "[a]t the time of project vesting, the site was
located within the Port Ludlow Interim UGA [Urban Growth Area] and designated in the
Comprehensive Plan for multifamily development with a maximum density of 16
dwelling units per acre." (Log Item No. 144, p. 9, Finding 7) The Examiner also found
that the 2002 Decision "included Conditional Use approval for a multifamily project."
(Log Item No. 144, p. 10, Finding 11)
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The nature of Trendwest's proposed use was apparently rather thoroughly argued before
the Examiner and his analysis of that issue occupies much of the 2005 Decision. (Log
Item No. 144) He ult~~ately concluded that "the Trendwest time-share proposal does not
change the project from multifamily residential to hotel or other commercial use." (Log
Item No. 144, p. 17, Conclusion of Law 13)
The Examiner apprr.:"led the SDP and BSP/Condominium Subdivision subject to 36
conditions. (Log Itee No. 144, pp. 19 - 25)
12. Powers, Rozzell, and Eale each own property in or live in Port Ludlow. (Log Item Nos.
144 {po 2}, 162, anc' J 74) Powers and Hale participated in the Examine;'s August 16,
2005, open record h:>9dng; Rozzell attended but did not testify. (Log Item No. 144, p. 2)
Each has standing to appeal.
13. Powers and Hale timely filed separate Motions for Reconsideration. (Log Item Nos. 152
and 162) The Examiner denied both Motions. (Log Item Nos. 165 and 166) Hale and
Powers/Rozzell subsequently timely filed appeals. (Log Item Nos. 173 and 174) It is
those appeals which ere now before the Appellate Examiner.
14. The Hale Ludlow COll:? Division 2 appeal raises one issue: "whether the Trendwest Resort
is a 'multi-family resiliential development' or 'transient accommodations'." (Log Item
No. 173, p. 2) Hale argues that the Department and Exanlincr have mis-interpreted the
1994 Zoning Code . provisions. He believes that the proposal is a transient
accommodation, not a multifamily residential development. Hale seeks denial of the
proposal based on th.:; fact that transient accommodations are not allowed under the 1994
G-1 zone. (Log Item No. 173)
15. The Powers/Rozzell'Ludlow Cove Division 2 appeal raises five issues: 8 That Pope
waived its right to develop under the 1995 regulations when it entered into the PLDA in
2000; that the proposed Trendwest use constitutes transient accommodations, not allowed
on the subject property under either the 1995 or current codes; that the SDP should not
have been approved (The Appellate Examiner dismissed this issue based on lack of
jurisdiction; see the Introduction, above, and Log Item No. 181.); that the proposal does
not meet the self-contained/integrated requirements of a master planned resort under the
growth Management Act (GMA); and that the effect of the South Bay Covenants,
Conditions, & Restrictions (CC&Rs) on Tract E development is an "open issue." (Log
Item No. 174)
16. Several participants in the Examiner's hearing provided information about the Trendwest
business model, some of which was quoted from the Trendwest website and/or
Trendwest materials.
The Department has identified nine issues in the Powers/Rozzell appeal. (Log Item No. !) The Appellate
Examiner's identification of five issues results from "collapsing" some of the Department's identified
issues into fewer, slightly more broadly stated issues.
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A single corporation will own all the units in this particular project. Club
Members buy only the right of use among 4500 or so other units in other
locations and for short periods of time. According to the CC&R's
provided by Trendwest, Club Members are not owners of the real property
. .. The number of employees claimed to be needed for operations, 40-50
as quoted by the Trendwest executives, ....
(Log Item No. 88, p. 2)
Following are from the Trendwest website:
"Trendwest is the developer, marketer and manager of W orldMark
properties. The company purchases and develops vacation properties and
transfers them debt-free to WorldMark, a nonprofit mutual benefit entity
that owns, operates and maintains the resorts."
"W orldMark is a pure credit-based resort system that allows you to
vacation where, when and how long you want. In contrast, a typical
timeshare program requires you to purchase a specific unit in a specific
resort for a specific period each year."
"When you become a WorldMark owner, you purchase vacation credits
through Trendwest. You can "spend" your credits like currency on resorts
in the W orldMark network of resorts."
(Log Item No. 96, p. 2)
Trend West [sic] is part of Cendant. Its basic business is to acquire
or develop facilities, to sell the facilities to timeshare owners on weekly
timeshare time slots, to bring the owners as part of the package into a
vacation club and to operate the facilities. The owners receive points based
on the value of their units. Valuation is done through Value Mark, which
is associated with Trend West. Owners apply the points to acquire the
right to use units for vacation purposes. The units, the use of which the
owners acquire would only by accident be the units they own or the time
slots to which they would be entitled as owners. The owners pay the
maintenance of the units through periodic dues in the club. Key here is
that the owners are investing in a vacation club and receiving a theoretical
discount for making the investment. They are not investing in a residential
unit that they necessarily intend to use themselves in the time slot they
purchase. Rather they are investing in the right to visit any of 5,000 units
under management of Trend West. Currently about 250,000 members
share ownership in such units. Trend West operates the units and makes
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December 7, 2005
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money from their initial sale and from their ongoing operation. It puts the
staff onsite. . .. Cendant is publicly traded. . .. Trend West has the
exclusive control over a resort project using investor vacationer money
both for capiel costs and operations. ...
. .. [Trendwe::~] is a pool of buyers of a rental unit that is then leased to a
vacation club for use of its members. ...
(Log Item No. 119, pp. 7 and 8)
Trendwest seEs blocks of time (or points) to timeshare purchasers that join
its vacation association. Members must either use points as credits against
the facilities tbey want to use, pay cash for points, or use a combination of
points and carh. ... The timeshare units are reserved by Trendwest/World-
Mark members in blocks of one week.
(Log Item 134, p. 3)
... Cendant ':orporation, a publicly traded holding company, owns
Trendwest w'l~? will develop and maintain the buildings. ...
The company's own literature indicates that you are unable to tie owners
to specific unit [sic] within a building. ... "Traditional timeshare makes
luxurious vacations affordable and helps owners beat vacation inflation,
but may people find it too restrictive - they're tied year after year to a
fixed week in the same unit at the same property. With many people
taking shorter, more frequent vacations, most of the time within driving
distance of home, a more flexible system of vacation ownership was
needed. Enter Trendwest and its innovative points-based program. When
you become a WorldMark owner, you purchase vacation credits through
Trendwest. You can spend your credits like currency on resorts in the
W orldMark network of resorts."
(Log Item No. 137,p. 2, quote from ..http://www.trendwestresorts.com/ownershipl..as
the same existed when visited by the author of Log Item No. 137)
17. In the process of seeking a ruling in 2004 from the Department regarding the number of
accessible dwelling units which would be required, the Trendwest architect described the
project in the following terms:
The Trendwest Resort under consideration provides transient
residential occupancies. The average stay of Trendwest Members at
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Trendwest resorts is less than 4 days. The members do not have any
ownership interest in any particular property or unit. In general, all
members may use any unit in any Trendwest resort based on a point
system. Members do not have a right to return to any particular unit at any
particular time. Members make reservations based on rooms available at
the time a reservation is made.
(Log Item No. la, p. 9) 9
18. At a public meeting held at Port Ludlow on March 24, 2005, a Trendwest executive's
explanation of the proposal led to the following description in the "Peninsula Daily
News":
Trendwest is to develop the site, Hensley [Trendwest Executive
Vice President] said.
After that, W orldMark, the Club, which is owned by Trendwest,
would own and manage the resort through a flexible, point-based system.
As part of Trendwest, WorldMark counts 220,000 members who
continuously use its 56 resorts worldwide, Hensley said.
(Log Item No. 57, p. 1)
19. Any Conclusion deemed to be a Finding of Fact is hereby adopted as such.
PRINCIPLES OF LAW
Authority
Appeals from Hearing Examiner Decisions on Type III (formerly Type B under LUPO)
applications are heard by the Appellate Examiner. [JCC 18.40.040, Table 8-2; LUPO S 18.A]
Examiner decisions "on a type III permit (including its [sic] decision on the underlying project
...) may be appealed by a party of record to the appellate hearing examiner." [JCC
18.40.360(3)(b)] The Appellate Examiner's Decision is final subject to the right of
reconsideration and appeal to Superior Court. [LUPO S 18.D.7 and RoP 111.13]
9
PLA argued at hearing that this description should not be accorded great weight in detennining the nature
of the use under zoning, based on the fact that it was written for the purpose of seeking a building code
ruling, not a zoning ruling. The Examiner assumes that the Trendwest architect provided a true, factual
description of the nature of the proposed use. That such a description might lead to one detennination under
the building code and a different detennination under the zoning code, does not alter the truth of the
description.
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The Appellate Examiner may:
a. Affirm the decision; or
b. Reverse the decision; or
c. Affirm the decision with modifications; or
d. Remand the decision to the Hearing Examiner for further consideration,
including a statement of the issues to be reviewed on remand.
[LUPO ~ 18.D.1]
Vested Rights
Vesting of development applications in Washington State is based on either statutory law or
judicial recognized common law doctrine. Subdivision and short subdivision applications are
governed by a statutory vesting rule: Such applications "shall be considered under the
subdivision or short subdivisiC'n ordinance, and zoning or other land use control ordinances, in
effect on the land at the tiEt';'; a fully completed application ... has been .submitted ...." [RCW
58.17.033]
The judicially recognized common law vested rights doctrine has been applied w only certain
applications, including CUPs:
Washington does ad:lere to the minority rule that a landow.ner obtains a vested
right to develop land '.vhen he or she makes a timely and complete building permit
application that complies with the applicable zoning and building ordinances in
effect on the date of the application. Our vested rights rule also has been applied
to building permits, ::::onditional use permits, a grading pClmit, and a [shoreline
manageme~t] substantial development permit.
[Norco Construction v. King County, 97 Wn.2d 680, 684, 649 P.2d 103 (1982), citations
omitted] 10
Under the PLDA,
All development prc;:osed on Pope Property shall be vested to and governed by
the Port Ludlow MPR chapter of the Jefferson County Zoning Code (as defined in
Section 3.1 and Appendices A-F) .... The vesting period shaH be the same as the
term of this Agreem~nt. Except as otherwise provided in Section 3.13.1 through
3.13.3 below, any nc\.v or different development standards adapted by the County
during the term of this Agreement shall not apply to the Pope Property. To the
extent this Agreemcl't does not establish standards or requhements covering a
subject, element or conditions, then the development approval sought shall vest to
10
Other states recognize and apply different forms of common law vesting ofland use applications.
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and be governed by the County codes, regulations and standards in effect upon the
date of the future application. ...
(PLDA, S 3.13, underlining in original) PLDA Sections 3.13.1 - 3.13.3 address public health and
safety requirements, the Endangered Species Act, and structural codes. The PLDA expires on
May 8, 2020. (PLDA, S 4.22)
Standard of Review
The applicable standard of review is set forth at LUPO S 18.D.2:
The Appellate Examiner may grant the appeal if, following a review of the record,
one of the following standards has been met:
a. The land use decision is an erroneous interpretation of the law;
b. The land use decision is not supported by evidence that is substantial when
viewed in light of the whole record;
c. The land use decision is a clearly erroneous application of the law to the
facts; or
d. The land use decision is outside the authority or jurisdiction of the Hearing
Examiner.
Scope of Consideration
The Appellate Examiner has considered Log Items Nos. 1 - 212; applicable adopted laws,
ordinances, plans, and policies; and the pleadings, positions, and arguments of the parties of
record.
DISCUSSION
Vested Rights
The "Principles of Law" section, above, contains a basic statement of the vested rights doctrine
as applied to land use applications in Washington State. As the Examiner quite properly noted
(Log Item No. 144, p. 13, Conclusion of Law 6), vested rights serve to fix the regulations which
will be applied in the review of an application. Vested rights do not assure that the application
will be approved. What vests is the right to consideration under a fixed set of regulations, not the
right to approval under those regulations.
A key question in the present appeal is: When one has a vested right, what exactly does it
protect? The State Supreme Court addressed that question in, among other cases, Noble Manor v.
Pierce County, 133 Wn.2d 269,943 P.2d 1378 (1997):
We conclude that it is not only the right to divide land which vests at the time of a
[. . .] subdivision application, but also the right to develop or use property under
the laws as they exist at the time of application. The issue then becomes what
development rights vest at that time.
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Two alternatives are possible. Either (1) all uses allowed by the zoning and land
use laws on the date of the application for the [...] plat should be vested at the
time of application, irrespective of the uses sought in an application; or (2) an
applicant should have the right to have the uses disclosed in their application
considered by the county or local government under the laws in existence at the
time of the application. We conclude the second alternative comports with prior
vesting law.
[at 283, emphasis added] Applications, not property, vest. Thus, the only thing which vests is the
particular application at issue and the uses disclosed within and on that application. Other uses,
not disclosed, which might be allowed under then-current land use regulations do not vest. Put
differently, it is the particular uses disclosed on the particular application for a particular
property which vest, not every use allowed by the then-current regulations that might
conceivably be developed on that particular property.
Once a subdivision has received final approval and been recorded, u. it is subject to and benefited
by the provisions ofRCW 58.17.170:
. . . Any lots in a final plat filed for record shall be a valid land use
notwithstanding any change in zoning laws for a period of five years from the
date of filing. A subdivision shall be governed by the terms of approval of the
final plat, and the st8..tutes, ordinances, and regulations in effect at the time of
approval under RC\V 58.17.150 (1) and (3) for a period of five years after final
plat approval unless the legislative body finds that a change in conditions creates
a serious threat to the lJublic health or safety in the subdivision.
The Noble Manor court exple,ined the difference between this "vesting" of a recorded final plat 12
and the RCW 58.17.033 vesting of a preliminary subdivision application:
RCW 58.17.170 was enacted in 1969 and it gave rights to a developer to use a
subdivision lot in accord with the terms of approval of the final plat and the laws
in effect on the date of final plat approval (not the date of stlhdivision application)
for a period of five years from the date of approval. This section of the statute
applies only to formal subdivisions and not to short subdivisions.
(Noble Manor, at 281, footnote omitted)
11
The subdivision process is a two step procedure: Preliminary approval foHowed, after construction and/or
bonding of the required. physical improvements within the proposed subdivision, by final approval and
recordation with the County Auditor (or equivalent office in charter counties). [Chapter 58.17 RCW]
A "plat" is the graphic rc!)resentation of a "subdivision." [RCW 58.17.020(2) and (1), in that order] The
two terms are often used interchangeably, although it is technically incon'ect to do so.
12
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6
Section 58.17.170 RCW is irrelevant to the issues in this case. PLAlTrendwest seek vested rights ,y,'-<7
protection based on the date of the 1995 Applications, not on the dates (the earliest of which was. -'",; c('j<.7
in 2003) that the two phases of Ludlow Cove Division 1 were recorded. '(~x
I
Multifamily Residential v. Transient Accommodations
The question of whether the PLA/Trendwest development proposal for Tract E is a multifamily
residential development or a transient accommodation depends in large measure upon the
application of a number of provisions within the applicable regulations. For ease of reference, the
text of the key provisions. is provided below; their effect on the facts in this case will occur in the
Conclusions, below.
The first provisions of interest are definitions from Jefferson County Zoning Code Ordinance
No. 09-0801-94, Section 3.1 0:
32. DWELLING UNIT: One or more rooms physically arranged so as to
create an independent housekeeping establishment for occupancy by one family
with separate toilet and facilities for cooking and sleeping.
69. MULTI-FAMIL Y RESIDENTIAL DEVELOPMENT: Developments
containing structures housing two (2) or more residential dwelling units. Multi-
family residential developments are those that are designed and intended for
residential occupancy in multi-family structures regardless of the type of building
or ownership in which such use occurs. Examples include, but are not limited to:
townhouses, duplexes, multiplexes, condominiums, apartment houses, boarding
houses, and lodging houses. Accessory Dwelling Units, i.e.: Mother-in-law and
accessory apartments shall not be considered multi-family residences.
94. TRANSIENT ACCOMMODATIONS: A building or group of buildings
in which lodging or lodging and meals are provided for transient guests for
/compensation. Transient accommodations include but are not limited to cabins,
( resort~ hotels, motels, hostels, and campgrounds. For the purposes of this
"Ordinince, transient shall be defined as being not more than 30 consecutive days
duration.
The word "residential" is not defined in Jefferson County Zoning Code Ordinance No. 09-0801-
94. Words which are not defined are to be given their common, ordinary meaning, unless the
context clearly requires some special meaning. A dictionary may be used to ascertain that
meaning. [US West v. Utilities and Transportation Commission, 134 Wn.2d 74, 97, 949 P.2d
1337 (1997)] "Webster's Encyclopedic Unabridged Dictionary of the English Language," 1989
Edition, defines "residential" as "1. of or pertaining to residence or to residences: a residential
requirement for a doctorate. 2. adapted or used for residence: a residential neighborhood"
(Emphases in original) The same dictionary defines "residence" as "1. the place, esp. the house,
in which one lives or resides; dwelling place; home: Their residence is in New York City. 2. a
structure serving as a dwelling or home, esp. one of large proportion and superior quality: They
have a summer residence in Connecticut. ..." (Emphases in original)
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The second group of provisions of interest ate found in the CUP submittal and review
requirements within Jefferson County Zoning Code Ordinance No. 09-0801-94, Section 7.
[Application] forms shall require the following minimum information: ... 5. A
plan of the proposed use showing existing and proposed streets, structures, open
spaces, uses of each structure, parking areas, fencing, pedestdan paths and trails,
buffers, and landscaping.
[~ 7.20] The CUP review criteria in S 7.30.1 state that CUP applications "shall not be ... granted
unless all of the following findings are made in the affirmative:", One of the required six
findings is that "The charact(~r of the use is in harmony with the surrounding area". (s 7.30.1(5))
The following provisions from Chapter 36.70C RCW, the Land
also particularly relevant:
Petition Act (LUP A), are
(2) A land use petition is barred, and the court may not grant review,
unless the petition is. timely filed with the court and tirnely served on the
following persons who shall be parties to the review of the land use petition:
(3) The petition is timely if it is filed and served all parties listed in
subsecticrH (2) of this sc:ction within twenty-one days of the:3suance of the land
use deci~~ion.
[RCW 36.70C.G40] LUPA has been "the exclusive means of judicial review of[virtually all local
government] laicd use decisions" since its enactment in 1995. [RC'V! 36.70C.030] The exceptions
in Section 040 would not apply to subdivision or CUP applications.
CONCLUSIONS
1. The COI'lclusions which follow show that: PLA has a vested right to develop a
multifamily residential development on Tract E; the extent that right is limited by the
representations made in the original 1995 Applications; that right requires demonstration
of compliance with CUP criteria which was deferred in 2002; the use presently proposed
by Trendwest is not a multifamily residential development; and Trendwest's proposed
use cannot be established under PLA's vested right. The Appellate Examiner concludes
that the Examiner's 2005 Decision contains erroneous interpretations of the law, resulting
in a clearly erroneous application of those laws to the facts \vhich were before him.
2. The Conclusions which follow address Hale's one appeal issue (nature of the Trendwest
proposal) and two of Powers/Rozzell's appeal issues (vesting and nature of the Trendwest
proposal). In view of the conclusions reached on those two issues, the remaining
Powers/Rozzell issues are' moot. Moot issues are not nomlally addressed. The moot
issues in the Powers/Rozzell appeal will not be addressed.
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APPELLA TE HEARING EXAJ'vh'l-J'ER DECISION
RE: SUB05-00004 (Powers/Rozzell and Hale appeals)
December 7,2005
Page 17 of22
.
3. The Conclusions in this Decision are grouped by topic only for the reader's convenience.
Such groupings do not indicate any limitation of applicability to the Decision as a whole.
4. Any Finding of Fact deemed to be a Conclusion is hereby adopted as such.
Vested Rights
5. The Examiner's 2002 Decision cannot be disturbed. The time to appeal from that
decision ended 21 days after it's issuance (or, if reconsideration had been sought, 21 days
after issuance of the Examiner's decision on reconsideration). It is now some three years
later. No right of appeal exists.
Thus, the Examiner's 2002 ruling on vested rights stands as the law of the case and binds
all of the current parties. The Appellate Examiner need not consider Appellant Powers'
waiver of vested rights argument since the time to challenge the 2002 Decision has long
passed.
6. However, the preceding Conclusion does not fully resolve the vesting challenge, for we
must determine what vested before we can answer the question of whether the current
BSP and Trendwest proposal are vested to the regulations as they existed on January 19,
1995.
7. A BSP is not a subdivision; rather, it is a form ofland division which is exempt, by law,
from subdivision requirements. Was a BSP a part of the 1995 Applications? The record
available to the Appellate Examiner is not sufficient to provide a reliable answer to that
question. From what is available in this record, it would not appear that it was: The plan
was to create a number of single family residential lots with multifamily residential use of
Tracts A and B. The record available here does not indicate that further division of Tracts
A and B was contemplated under the 1995 applications. The record available here also
does not allow one to determine the configuration of Tracts A and B, nor to determine
why they were combined into Tract E when Ludlow Cove Division 1 was recorded.
8. If further division of Tracts A and B was disclosed in the 1995 Applications, then that
further division is vested, whether it be by further subdivision, short subdivision, or
exempt BSP division. If further division of Tracts A and B was not included in the 1995
Applications, then no vested right exists and such further division must occur subject to
the regulations in effect when the application for that further division was/is filed. Just
because a proposed subdivision vested in 1995 to 1995 regulations does not mean that
every succeeding division of land within that original subdivision is somehow also vested
to 1995 regulations.
9. The 2005 Applications need to be remanded to the Examiner for a factual determination
as to whether the 2005 BSP land division application is or is not vested to 1995
regulations, with consideration of the merits of that application to follow subject to the
applicable regulations.
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.' APPELLATE HEARING EXAI'vl.L,rER DECISION
RE: SUB05-00004 (Powers/Rozzeil311d Hale appeals)
December 7,2005
Page 18 of22
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10. The available record shows that as of January 19, 1995, what is now known as Tract E
was zoned G-1 and, 3S such, had a potential for up to 16 dwelling units per acre of
multifamily residential housing upon issuance of a CUP. Only the 1995 Applications and
the uses expressly disclosed therein vested to the 1995 regulations. Future uses of the
property that might have been allowed under the G-1 zoning do not vest; only the uses
proposed in the 1995 Applications for that property enjoy a vested right. [Noble Manor v.
Pierce County, 133 Wn.2d 269,283,943 P.2d 1378 (1997)J
The record available to the Appellate Examiner (which is not the entire 2002 record)
indicates that the 1995 Applications were for a 24 lot single family residential
subdivision and a CUP for multifamily housing on Tracts A and B (now Tract E). The
most specific descri.':tionmentioned in this record of tllC multifamily development
portion of the 1995i~pplications indicated that Tract E or may not be developed
with 64 tmits of multifamily residential housing. If that in fact, the most specific
description of the ml.lltifamily proposal in the 1995 Applivations, then that description
represents what was proposed and what enjoys a vested right.
11. Since the 1995 applications included a CUP for multifamil: residential development of
Tract E, some level of rnultifamily residential development cfTract E is vested under the
1995 CUP application. Substantial modifications between the date an application is filed
and the. date it is eventually heard may result in its losing any vested right which it
otherwise would have enjoyed. A 120 unit multifamily residential develop:nent would be
almost twice as larg",~ and dense as that which was apparently represented to be the
project within the 2002 record. The 1995 vested right vvould not protect a 120 unit
multifanlily development proposal if what was vested was a 64 unit multifamily
development proposal.
The Examiner should have the opportunity to again revi,'},v the 1995 Applications to
determine whether tL~ current proposal, whatever it may:.:nimately be, is so changed
from the concept de:,:~'dbed in the 1995 Applications and ai the 2002 hearing as to cause
the vested right to 19ps~. Remand of the matter is the appropriate way in which to allow
that action to occur.
12. Under the zoning regulations in effect on January 19, 1995, a CUP application required
submittal of a speciE.:: site development plan which then formed the basis for the required
CUP compatibility review. The present record contains no evidence that any specific site
development plan was before the Examiner in 2002, nor that the required compatibility
review was performed, (The required review could not be performed without a specific
development propos~.! to review.) In fact, the available record makes abundantly clear
that no plan was pre:':ented: Multiple family development of Tract E would be evaluated
at a later time.
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APPELLATE HEARING EXATvt.,4ER DECISION
RE: SUB05-00004 (Powers/Rozzell and Hale appeals)
December 7,2005
Page 19 of22
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How then can the Examiner's 2002 CUP approval be explained? 13 We must first assume
that the Examiner understood the code requirements and intended to issue a decision that
complied with those requirements. The only logical conclusion is that the Examiner
approved the general concept of multifamily residential development of Tract E while
deferring to the future compliance with CUP site plan submittal and analysis
requirements. 14
13. Unfortunately, that analysis has never occurred because the 2005 applications and the
2005 Decision overtly exclude the CUP component. 15 While a vested right to a CUP for
multifamily residential development of Tract E does exist, the review process required
under the vested regulations has never been completed. The multifamily residential
development right that vested with application ZON95-00001 is not a right to avoid
compliance with the applicable 1995 regulations. Since the Examiner deferred that
compliance in 2002, that compliance must yet occur.
The 1995 CUP application should have been before the Examiner in 2005. The case must
be remanded to allow the applicable CUP requirements to be met. In that process, the
Examiner will have to determine whether the proposal has so changed as to void the _
vested right.
Multifamily Residential v. Transient Accommodations
14. Whether Trendwest's current proposal is a multifamily residential development or
transient accommodations must be decided based upon the definitions found in the 1994
Zoning Code (because the CUP for multifamily residential development of Tract E is
vested to that version of the Zoning Code). If it is multifamily residential, it would be
allowed subject to issuance of a CUP under the zoning to which the 1995 CUP is vested;
if it is a transient accommodation, it could not be allowed.
15.
The type of ownership of the buildings is, according to the definition of multifamily
residential development, completely irrelevant to the question at hand.
16.
The parties to this proceeding seem to agree that an apartment building is multifamily
residential and that a hotel/motel is transient accommodation. The basic dispute is
whether Trendwest's proposal is more like an apartment than a hotel/motel. The number
and type of rooms in a unit can no longer (if ever they could) be used to definitively
distinguish an apartment from a hotel/motel: Some entire hotel/motel chains are based on
a "suite" concept in which units may contain more than one room and include cooking
13
14
IS
As has been noted, it is too late to challenge the Examiner's 2002 Decision. That Decision must be applied
as it stands.
The Powers/Rozzell appeal questions how 2002 CUP term of approval standards could be used when PLA
was claiming a vested right to 1995 regulations. (Log Item No. !) A recent appellate court case [East
County Reclamation Co. v_ Bjornsen, 125 Wn. App. 432, 105 P.3d 94 (2005)] holds that vested rights may
not be applied selectively in that fashion. However, as noted, it is too late to challenge the 2002 Decision.
The statement in the 2002 Staff report that the CUP "has been conditioned" to assure conformance with
required standards was simply not correct since there was no specific site plan present to be conditioned.
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APPELLATE HEARING EXAl'vi.. i'! ER DECISION
RE: SUB05-00004 (Powers/RozzcU aad Hale appeals)
December 7,2005
Page 20 of 22
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facilities. Neither can the presence or absence of recreationhui1dings, swimming pools,
barbeques, etc.: Both apartment complexes and hotelshnote1s commonly have such
features.
17. Trendwest stipulates that its members' occupancy would be ti'i;.lllsient by definition (for 30
days or less). (Argumem of counsel) Under the applicable 1994 Zoning Code definitions,
the proposal would thus be a transient accommodation if "cofi:pensation" is paid.
But "compensation" is almost universally involved in both multifamily residential
developments and in transient accommodations: Apartment renters pay rent to the
landlord for the right to occupy a unit; hotel/motel guests pay for the right to occupy a
unit. It would be wrong to suggest that "compensation" is unique to transient
accommodations.
18. The preponderance of the evidence shows that Trendwest members buy vacation points
so that they may vacation anywhere within the Trendwest system, that they use these
points to "rent" the accommodation they desire (paying mcr~ points for a larger, more
desirabk unit or during "high" season), and that they cansll.fJplement points with cash.
The evidence also shows that the units are available to non-Trendwest members when not
reserved by Trendwest members.
No matter what the legal nuances of a Trendwest member's ownership are, the reality is
that Trendwest members pay compensation (points and/or cash) to use units within the
Trendwest system for vacation stays. Therefore, a Trench,vest resort is, under the
applicable definitions, a transient accommodation, not a multifamily residential
development. Therefore, the proposed Trendwest resort is not permitted under either the,
1995 G-l zoning or the current single family residential zoning.
19.
Another approach to the issue is to consider the meaning of the word "residential." The
words "residence" and "residential" clearly imply a significant degree of permanence. (If
this were not true, then a hotel would be a residence and would qualify as a multifamily
residential development. The illogic of that result is apparent.) Such permanence is not
present at a Trendwest resort. A Trendwest resort is likely not the "residence" of any of
its guests; rather, it is a vacation resort, a place to get away from one's residence. Since it
does not contain residences, the proposal cannot be a multifamily residential
development.
A third approach is to consider the examples of each defined term as listed in the Zoning
Code definitions. Only "transient accommodations" includes "resorts" in its list of
examples. The examples under multifamily residential development are not at all similar
to the Trendwest model. 16
]6
The "condominium" example in the definition was discussed in the 2005 Decision. The evidence available
to the Appellate Examiner leads to the inescapable conclusion that the Trendwest proposal would not
qualify as a condominium: Trendwest members have no interest in the real property and, even if they did,
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APPELLATE HEARING EXAM",rER DECISION
RE: SUB05-00004 (Powers/Rozzeli and Hale appeals)
December 7, 2005
Page 21 of22
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21. All three approaches to this issue lead to the same result: The Trendwest proposal is a
transient accommodation resort, not a multifamily residential development. Transient
accommodations are not allowed under either the 1995 G-l zoning nor under the current
single family residential zoning.
22. The Examiner's acceptance of the position that Trendwest's proposal is a multifamily
residential development was clearly erroneous.
23. Since PLA is the legal successor to the party whose 1995 Applications vested and
Trendwest is but the prospective developer of Tract E, PLA should not lose its vested
right just because the prospective developer's plan is not "U.owed under either vested or
current zoning. Therefore, the most appropriate action not to deny the entire
application, but to remand for compliance with the holdings of this Decision.
DECISION
Based upon the preceding Findings of Fact and Conclusions, the Appellate Examiner hereby
VACATES the Examiner's September 2,2005, Decision and REl\lANDS the matter for further
proceedings in eccordance with the holdings of this Decision.
Decision issued December 7, 2005.
\s\ John E. Galt (Signed original in official file)
JOHN E. GALT
Appellate Hearing Examiner
the common areas would not be restricted in their use. to only those few members who actually "own" a
unit in the proposed resort. At best, the proposal is a "timeshare" resort.
..
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APPELLATE HEARING EXAML.,ER DECISION
RE: SUB05-00004 (Powers/Rozzell and Hale appeals)
December 7, 2005
Page 21 of22
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21. All three approaches to this issue lead to the same result: The Trendwest proposal is a
transient accommodation resort, not a multifamily residc';i1.1al development. Transient
accommodations are allowed under either the 1995 G- JlEoning nor under the current
single family residential zoning.
22. The EXfuJ.liner's acceptance of the position that Trendwe~,V proposal is a multifamily
residential development was clearly erroneous.
23. Since PLA is the legal successor to the party whose 1995 Applications vested and
Trendwcst is but the prospective developer of Tract E, PLA should not lose its vested
right just because the pl'ospective developer's plan is not allowed under either vested or
current zoning. Therefore, the most appropriate action is not to deny the entire
application, but to remand for compliance with the holdings of this Decision.
DECISION
Based upon the preceding Fi[.dings of Fact and Conclusions, thl;;.\.ppellate Examiner hereby
VACATES the Examiner's S.eptember 2,2005, Decision and REr-r"hNDS the matter for further
proceedings inJ>ceordance with the holdings of this Decision.
Decision issued December 7,2005.
\s\ John E. Galt (Signed original in official file)
JOHNE. GALT
Appellate Hearing Examiner
the common areas would not be restricted in their use to only those fevl members who actually "own" a
unit in the proposed resort At best, the proposal is a "timeshare" resort.
..
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~ APPELLATE HEARING EXAMJj~ER DECISION
RE: SUB05-00004 (Powers/RozzeH and Hale appeals)
December 7, 2005
Page 22 of22
NOTICE of RIGHT of RECONSIDERATION
This Decision is final subject to the right of any party of record to file a written motion for
reconsideration within 10 working days following the issuance of this Decision in accordance
with the procedures of RoP 111.13.2. The filing of a motion for reconsideration does not stop the
period provided to appeal the Appellate Examiner's Decision. See RoP III.13 for additional
information and requirements regarding reconsideration.
NOTICE of RIGHT of APPEAL
This Decision is final subject to the right of a party of record with standing, as provided in RCW
36.70C.060, to file a land use petition in Superior Court in accordance with the procedures of
LUPO ~ 18.D.7. Any appeal must be filed within 21 calendar days following the issuance of this
Decision.
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LAWYERS
II
Davis Wright Tremaine LLP
ANCHORAGB BI!LLllVUE LOS ANGELES NI!W YORK PORTLAND SAN fllANCISCO SBATTLI! SHANGHAI WASHINGTON, D.C.
2600 CENTURY SQUARE
1501 FOURTH AVJlNUJl
SEATTLB, WA 98101-1688
TEL (206) 622-3150
PAX (206) 628-7699
www.dwt.com
March 3, 2006
VIA ELECTRONIC MAIL
AND CERTIFIED MAIL, RETURN RECEIPT REQUESTED
Ai Seal( Director
Department of Community Development
Jefferson County
621 Sheridan Street
Port Townseo.d, Washington 98368
Pat Rodgers
Board of County Commissioners
Jefferson County
1820 Jefferson Street
Port Townsend, Washington 98368
David Sullivan
Board of County Commissioners
Jefferson County
1820 Jefferson Street
Port Townsend, Washington 98368
Phil Jolmson
Board of County Commissioners
Jefferson County
1820 Jefferson Street
Port Townseo.d, Washington 98368
Lorna Delaney
Clerk of the Board of County ComrnillSioners
Jefferson County
P.O. Box 1220
Port Townsend, Washington 98368
John Fischbach
County Administrator
Jefferson County
1820 Jefferson Street
Port Townsend, Washington 98368
Re: Amendment No. 1 to Port Ludlow Development Agreement
Ladies and Gentlemen:
I represent Port Ludlow Associates LLC and Olympic Water and Sewer, Inc. (conectively,
"PLA''). I am. writing in connection with the 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 (conectively"Pope''), and the County, which was recorded in the real
property records of Jefferson County, Washington, under Auditor's File No. 435974.
The Agreement relates to the development ofland within the Port Ludlow Master Planned
Resort, which was designated by Jefferson County in 1998 under the authority ofRCW
SEA 1762306v16S364-1
Seattle
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Jefferson County, Washington
Matcl13, 2006
Page 2
36.70A.362. PLA acquired the interest of Pope in August 2001 and is the assignee and successor
to Pope under the Agreement
Trendwest Resorts, Inc., proposes to develop a timeshare community on a parcel ofland
commonly known as Tract E of the Plat of Ludlow Cove. The project would have 120 timeshare
units and would significantly enhance the resort features of the Port Ludlow MPR. Tract E
comprises a 14.66-acre portion of the Port Ludlow MFR. Tract E currently is owned by PLA but
is under contract for sale to Trendwest.
PLA and Trendwest believe that timeshare structures and uses are multi-family residential
structures and may be developed within Tract E to a vested density ofup to sixteen (16)
timeshare units per acre of land (although the Trendwest proposal is for approximately nine (9)
units per acre). In a decision dated September 2, 2OOS, your Hearing Examiner agreed with
P~ Trendwest, and your Department of Community Development statt: and approved the
Trendwest project.
A dispute has arisen between three property owners within the Port Ludlow MPR, on the one
hand, and PLA, Trendwest, and the County, on the other hand, whether timeshare structures and
uses are permitted on Tract E under the Agreement Last fall, those three individuals appealed
the binding site plan decision of the Hearing Examiner to the Appellate Hearing Examiner and
appealed the shoreline decision of the Hearing Examiner to the Shorelines Hearings Board.
In a decision dated December 7, 2OOS, the County Appellate Hearing Examiner agreed with the
three property owners as to the binding site plan decision, and PLA and Trendwest have
appealed that decision to Jefferson County Superior Court, where the matter is pending. The
Shorelines Hearings Board has not yet made a decision in the shoreline appeal.
PLA and Trendwest believe that the Hearing Examiner's decision was conect and that the
Appellate Hearing Examiner's decision was made in error. PLA and Trendwest also expect that
the Shorelines Hearings Board will affinn the Hearing Examiner's favorable shoreline decision.
However, the Trendwest project could be delayed for a significant period of time, at great
expense to PLA, Trendwest, and the County, by the three appellants, regardless whether or not
their appeals have merit. The prompt resolution of the controversy is of significant public
importance in the Port Ludlow community and will provide benefits to the County and to its
citizens.
The Board of County Commissioners has the authority to approve an amendment to the Port
Ludlow Development Agreement that will resolve the disagreement - made evident in the
conflicting decisions of the Hearing Examiner and Appe1Iate Hearing Examiner -- whether
timeshare structures and uses are permitted. within Tract E. The amendment does not require an
amendment to the MPR zoning code or comprehensive plan. I am writing to request your
approval of such an amendment, and PLA's proposed draft is enclosed for your consideration.
SEA 1162J06v1 65364-1
Seattle
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Jefferson County, Washington
March 3, 2006
Page 3
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It is a requinment of state law and County ordinances that your review of this application be a
public process and that you hold a public hearing prior to your decision. However, because
County staff already has completed the environmental review of the Trendwest project, and
because a complete set of conditions and mitigation measures already has been developed, the
process can be completed quickly.
I propose the following schedule to complete the process:
Filing of complete application: March 3
Publication of notice of application and public comment period: March 15
End of public comment period: April 14
Staff report: April 28
Publication of notice ofBOCC public hearing and availability of staff report: May 3
BOCC public hearing: May 18 (third Thursday)
BOCC decision: May 18
Deadline for LUP A appeals: June 8
It is possible that Trendwest will submit to the County new binding site plan and shoreline
permit applications and ask that they be consolidated with this application. This would allow the
County to approve the Trendwest project under the new development standards descn'bed in our
proposed amendment PLA consents to and would support such consolidation.
You will receive strong and repeated opposition to this proposed amendment from our three
opponents and from some of their friends. As you consider their comments, I hope that you will
consider the significant benefits of the project to the Port Ludlow community, the thorough
evaluation and approval of the project given by the Department of Community Development and
Hearing Examiner, and the significant compatibility of a timeshare community with a master
planned resort.
SEA 1762306\'165364-1
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J.".rlon County, WA POPE RROuReU. RESO !S8.00'
1
STATE OF WASHINGTON
County of Jefferson
IN THE MAITER OF A RESOLUTION
to enter into a development agreement with
land owned by Pope Resources per Chapter
36.70B.170 and Chapter 36.70B.200
Revised Code of Washington
}
}
}
}
}
Resolution No. 42-00
The Jefferson County Board of Commissioners enters the following findings:
I. On August 28, 1998 the BOCC adopted Resolution No. 72-98 establishing the Jefferson County
Comprehensive Land Use Plan in accordance with the Growth Management Act Chapter 36.70A
RCW.
2. The Comprehensive Plan established the Port Ludlow Master Planned Resort. The Comprehensive
Plan contains policies in LNG 25.0 of the Land Use and Rural element, which maintain the viability
of Port Ludlow, as Jefferson County's only Master Planned Resort (JvfPR).
3. On October 4, 1999 the BOCC adopted Ordinance No. 08.1004-99 as development regulations for
the Port Ludlow Master Planned Resort.
4. Pursuant to Chapter 36. 70B.170 Jefferson County may enter into a development agreement with a
person having ownership of real property within Jefferson County.
5. Land Use and Rural Strategy C, Master Planned Resort, Action Item 3 of the Comprehensive Plan
(page 3-94) allows for the adoption of a Development Agreement between Jefferson County and Pope
Resources (Olympic Property Group) pursuant to Chapter 36.70.B.170 RCW.
6. The Board of County Commissioners finds that the Development Agreement is consistent with the
applicable development regulations adopted by Jefferson County under chapter 36.70A RCW.
NOW, THEREFORE. BE IT RESOLVED by the Board of County Commissioners. Jefferson County, .
Washington, as follows:
1.0 The adoption of Port Ludlow Development Agreement (attached hereto as Exhibit A) covering
approximately 1,200 acres of land owned by Pope Resources and located in Jefferson County furthers
the public's health, safety and welfare by allowing d~yeJoPment to take place in a predictable manner
consistent with the County's Comprehensive Plan artdfthePort Ludlow Master Planned Resort Code,
Ordinance No. 08- I 0004-99.
2.0 The Boan~ intends this Resolution shall apply to all land owned by Pope Resources within the Port
Ludlow~aster Planned.Resort, to the extent permitted by law.
e
1111_111111:~~~;~.
J.".raOrl County. WA POPE RESOURCU RE$O sse."'
3.0 Effective Date. This resolution shall become effective on the 8th day of May 2000. ~
~
4.0 AdopHon. Adopted by the Jefferson County Board of Commission"" this t day of ~
2000., ~
SEAl:
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ATTEST:
APPROVED AS TO FORM: ONLY
~~~
Joe -anne Dalzell . /
Jefferson County Prosecuting Attorney
nity Development
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J.".r.an Countv. WA POPE ftESOURCE6 RESO 1188.11
I
"EXHIBIT .
PORT LUDLOW DEVELOPMENT AGREEMENT
1. PARTIES, PLANNING CONCEPT and RECITALS
1.1 PARTIES
This DEVELOPMENT AGREEMENT ("Agreement") is entered into this / d- day of
;4ta~ ' 2000, by and between POPE RESOURCES, a Delaware Limited
Partner 'p, its subsidiary companies OLYMPIC PROPERTY GROUP LLC (a
Washington limited liability company), OLYMPIC RESORTS LLC (a Washington
limited liability company), OLYMPIC WATER AND SEWER, INe. (a Washington
corporation), OLYMPIC REAL ESTATE DEVELOPMENT LLC. (A Washington
limited liability company) (collectively referred to as. "P-ope" hereinafter) and
JEFFERSON COUNTY, a municipal corporation under the laws of the State of
Washington. Tms Agreement relates to real property consisting of some 1200 acres
owned by Pope and located in Jefferson County, Washington within the area known as
the Port Ludlow Master Planned Resort or "Port Ludlow MPR." The term "Pope
Property" as used elsewhere in tms Development Agreement shall include and shall refer
solely to the property owned by Pope within the Port Ludlow MPR, as described in
Exmbit I (the "Pope Property").
1.2 PLANNING CONCEPT AND VALUE
A plan for future buildout ofthe Pope Property within the Port Ludlow :MPR
promotes growth management and planning objectives of the County, including
reasonably priced housing; innovative and sensitive land development with clustering and
critical area ti'afts; environmental protection; creative mix of resort, commercial and
residential uses~and sustainable economic vitality.
1.3 RECITALS
1.3.1 The Wasmngton State legislature finds that the lack of certainty in
the approval of development projects can result in a waste of public and private
resources, escalate housing costs for consumers and discourage the commitment to /'
comprehensive planning which would make maximum efficient use of resources at the .
least economic cost to the public. RCW 36.70RI70.
1.3.2 Jefferson County is a municipal corporation under the laws of the
State of Washington with authority to enact laws and enter into agreements to promote
the health, safety and welfare of its citizens, including the approval of land use plans and
develoPIl:1ent.
devagrnlfinal
February II. 2000
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J.".raon County, WA POPE RESO\IlCES ItESO He."
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1.3.3 The County is authorized by state law to enter into a development
agreement that will set forth the requirements for future development in the Port Ludlow
MPR. RCW 36.70B.170.
1.3.4 ort Ludlow has bee designated fonnaIly as a Master Planned
Resort, as defined i RCW_~6.70A.362' the Jefferson County Comprehensive Plan
adopted on August 8, 1998 in tion No. 72-98.
1.3.5 The County has allocated and reserved from its population forecast
prepared by the state Department of Community, Trade and Economic Development
2250 residential dwelling units (at buildout) to the entire Port Ludlow MPR, including
Pope Property. Residential dwelling units do not include transient, resort units or
commercial properties.
1.3.6 In keeping with the Growth Management Act's purpose of
promoting wise use of land through coordinated planning efforts, the Jefferson County
Countywide Planning Policies and the Comprehensive Plan anticipate completion of the
resortJresidential community of Port Ludlow.
1.3.7 This Agreement relates to the future development of real property
owned by Pope or any of its subsidiary companies located in Jefferson County,
Washington. The Pope Property is comprised of approximately 1200 acres of land and is
part of the Port Ludlow MPR.
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1.3.8 The Port Ludlow MPR has a variety of designated uses including
residential, resort, community facilities, Village Commercial Center. open space and
recreational areas, including a golf course and marina.
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1.3.9 The coordination ofland use decision-making involving large land
areas, such as Port Ludlow, provide unique opportunities for the benefit of the County
and the existing and future residents of the Port Ludlow MPR.
1.3.10 The County has determined that the coordinated planning of Port
Ludlow furthers the goals of the County, as reflected in the Countywide Planning Policies
and the Comprehensive Plan.
1.3.11 The parties to this Agreement acknowledge that the Zoning
Ordinance for the Port Ludlow MPR is in confonnance with the standards set forth in the
Countywide Planning Policies and the Jefferson County Comprehensive Plan and is
consistent '!VJth the goalsandieq':lirements ofth.e G!9wth Managemen~ Act. _
1.3.12 As of the date of this Agreement, Port Ludlow has approximately
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1791 developed homes, condominiums and platted lots, as well as a small resort, marina
and commercial center. All parties acknowledge there is a development cap for the Port
Ludlow MPR set forth in the zoning chapter as "Measurement ERUs" (Measurement
Equivalent Residential Units or MERUs). Total allowed development within the Port
Ludlow MPR is 2,575 MERUs, with a residential unit maximum of2,250, as set forth in
zoning chapter adopted by the Board of County Commissioners on October 4,1999 in
Ordinance 08-1004-99.
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1.3.13 Buildout of the Pope Property is expected to occur over the next
ten to twenty years. Pope, Jefferson COWlty, Port Ludlow community groups and
members of the public at large wiJI invest considerable time in the COWlty permit and
review process for the future buildout of the Pope Property. A development agreement is
an appropriate way of providing certainty over time with respect to permitted densities,
uses, development standards and other aspects of the de:-elopment review process.
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1.3.14 The parties to this Agreement acknowledge the separ.ate document
entitled Memorandum of Understanding regarding the provision of sewer service (Sewer
MOU), which document was approved by the Board of County Commissioners on
October 4, 1999.
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1.3.15 Pursuant to RCW 36.70B.200, this Agreement was the subject ofa
fifteen (15) day comment period, which ran from April 19, 2000 to May 5
2000, and a hearing was held before the Jefferson County Board of County
Commissioners on May 1 , 2000. The Board of County Commissioners reviewed and
took official action adopting this Agreement on May 8 , 2000.
2. POPE PROPERTY ELEMENTS
2.1. POPE PROPERTY
The Pope Property consists of approximately 1200 acres. The Pope Property is
described with particularity in Exhibit 1. A map showing the location of the Pope
Property within the Port Ludlow MPR is attached as Exhibit 2.
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2.2 PORT LUDLOW MPR DESIGNATED ZONES
The Port Ludlow MPR includes the following designated zones, with permitted
uses as defined. in Port Ludlow MPR Zoning Chapter of the Jefferson County Code,
attached as Appendix A hereto:
· Single Family (MPR-SF)
· Single Family Tracts (MPR-SFT)
· Multiple Family (MPR-MF)
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· Resort Complex/Community Facilities (MPR-RC/CF)
· Village Commercial Center (MPR-VC)
· Recreation Areas (MPR-RA)
· Open Space Reserve (MPR-OSR)
2.3 MAP OF MASTER PLANNED RESORT AND PERMITTED USES
. Attached as Exhibit 3 is a map of the Port Ludlow MPR in a recordable format.
Exhibit 2 shows the location of the Pope Property within the Port Ludlow MPR.
3. DEVELOPMENT STANDARDS
3.1 PERMIITED LAND USES AND DENSITY STANDARDS; ZONING
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The permitted land uses, regulatory standards- and density standards for
development within the Pope Property are set forth in the Port Ludlow MPR Zoning
Code chapter of the Jefferson County zoning code, attached as Appendix A.
3.2 PLANNING GOALS AND OBJECTIVES
The planning goals adopted by Jefferson County in the Comprehensive Plan .shall
be the policy guidance and the foundation for all future development of Pope Property.
The Comprehensive Plan policies for the Port Ludlow MPR are attached as Appendix B.
3.3 SURFACE WATER STANDARDS
All future development within the Port Ludlow MPR shall be subject to the
Jefferson County Stonnwater Management Ordinance #10-1104-96. A copy of the
ordinance is attached in Appendix C. The County shall be responsible for the
management of surface water in all public road rights of way, easements accepted by the
County for maintenance and other areas dedicated to the public.
3.4 CRITICAL AREA STANDARDS
The critical areas, boundaries of such critical areas and allowed uses within the
critical areas of the Port Ludlow MPR shall be detennined based upon the Jefferson
County Interim Critical Areas Ordinance No. 05-0509-94 as arnended by Ordinance No.
14-0626-95. A copy of the ordinance is attached in Appendix D.
3.5 PLATTING STANDARDS
Platting within Port Ludlow MPR shall be pursuant to RCW 58.17 and the Jefferson
County Subdivision Ordinance No. 04-0526-92 and within the time frames adopted by
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Jefferson County pursuant to the 1995 Regulatory Reform Legislation, ESHB 17.24 (ch.
347, Laws of 1995), as codified in Land Use Application Procedures Ordinance No. 04-
0828-98. A copy of the ordinances are attached in Appendix E. .
3,6
SHORELINE MASTER PROGRAM
All future development within the Port Ludlow MPR shall be subject to the
Jefferson County Shoreline Master Program in effect as of the date of this Agreement. A
copy of the applicable Shoreline Master Program is attached as Appendix F.
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tJr1 3.7 PORT LUDLOW WATER SERVICE
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2(/ Water main extensions and water system improvements that may be required to
.(/ serve the Pope Property shall be installed in conformance with the most current approved
specifications and requirements, at the time of installatiOn, of the Ludlow Water
Company Water System Plan, the Jefferson County Coordinated Water System Plan and
the Washington State Department of Health, and all other applicable laws, ordinances,
rules and regulations.
3.8
PORTLUDLOWSE~RSER~CE
Sewer mains and sewer system improvements that may be required to serve the
Pope Property shall be installed in confonnance with the most current, approved
specifications and requirements of the Pope Resources General Sewer Plan, as approved
by the Department of Ecology, and all other applicable laws, ordinances, rules and
regulations.
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r ~v :;:: ..:: within the Port Ludlow MPR shall be provided by 1effmon County
'1 Fire District No.3. Mitigation fees associated with develppment, ifany, shall be .
. ~~ ,/t ined and paid pursuant to applicable state and local law.
J~ 3.11 FLEXIBILITY AND MODIFICATION OF POPE PROPERTY
(J EVELOPMENT ELEMENTS, STANDARDS FOR DEVELOPMENT AND OTHER
. ~ "v. MITIGATIONS BY COUNTY
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POLICE
Jefferson County shall provide police services within the Port Ludlow MPR.
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~ut. 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'').
3.12 COUNTY PROCESSING AND REVIEW
3.12.1 County Review Procedures and Standard~
The review and approval of proposed development applications proposed
by Pope for Pope Property shall be pursuant to the Port Ludlow MPR Zoning Ordinance
(Appendix A) and the County's Land Use Application Procedures Ordinance, Ordinance
04-0828-98, which is attached in Appendix E.
3.12.2 SEPA Compliance
3.12.2.1 Prior EIS. The parties acknowledge that potentialimpacts
and mitigation measures for certain future development of the Pope Property have been
reviewed in prior enviromnental documents, including environmental impacts from the
development of Ludlow Bay Village, which is in the resort vicinity of the Port Ludlow
MPR. The parties acknowledge that the prior EISs reviewed potential impacts and
mitigation regarding potential development on a macro-level and were not project-
specific EISs.
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The prior reviews were published in the following documents:
Draft Enviromnental Imt>act Statement for Inn at Port Ludlow (October 1992);
Inn at Port Ludlow. Final Environmental Impact Statement (April 1993);
Port Ludlow Development Program. Draft EnvironmentallInpact Statement (October 1992);
Port Ludlow Development PrOl:rranl. Final Enviromnental Impact Statement (April 1993).
3.12.2.2 Future SEP A Review for Individual Projects. The parties
agree that this Agreement and the prior EISs set forth the regulations and certain
mitigation requirements to be applied to future Pope Property development proposals.
The parties further agree that new enviromnental review (SEPA compliance) shall be
required for each future project that is not categorically exempt from SEPA review.
Relevant information from prior EISs shall be used to the fullest extent possible in fUture
SEPA review. This review may result in adoption of the prior EISs, issuance ofan
addendwn or supplement to the prior EISs. or issuance of a new threshold determination
. of non-significance or significance, incorporating information from the prior EISs. The
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scope of future environmental review shall be limited to considering only infonnation of
how or whether the new or modified projects differ from or exceed the sCope of the prior
EISs and resulting potentially significant adverse impacts relating to project differences
or changed scope.
3.12.2.3 Nothing in Section 3.12.2 shall release Pope or its
successors, successors in title or assignees from complying fully with the terms of the
Port Ludlow MPR Zoning Ordinance (Appendix A) regarding the mandatory
Supplemental EIS that is and shall be required for any 'resort plan development' as
described in Section 3.904 of the Port Ludlow MPR Zoning Ordinance.
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3.13 VESTING OF DEVELOPMENT STANDARDS AND MITIGATION
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~f>~dopment propos~ Pope ProneJUt sh~Hbe vested to and governed by
the Port Ludlow MPR ch~ter of the Jefferson County Zoninfl Code (as defined in
Section 3.1 and Appendices A-F) and shallbe implementf'A'I through plats_ short plats,
binding site plans, boundary line adjustments, site development permits, building permits
and other permits and approvals issued by the County. The vesting period shallbe the
same as the tenn of this A~eement. Except as otherwise provided in Section
3.13.1 through 3.13.3 below, any new or different development standards adopted by the
County during the term of this Agreement shall not apply to Pope Property. To the extent
this Agreement does not establish standards or requirements covering a subject, element
or condition, then the development approval sought shall vest to and be governed by the
County codes, regulations and standards in effect upon the date of the future application.
The development standards identified in this Agreement shall apply to the Pope Property
for the term of this Agreement, except:
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3.13.1 Public health or safety requirements. The Board of County
Commissioners reserve the authority to modify one or more of the standards or
requirements of development for the Port Ludlow MPR during the term of the
Agreement, after notice, a public hearing and adoption of findings and conclusions, to the
extent required to avoid a serious threat to public health or safety, as provided in RCW
36.70B.170.
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3.13.2 Endan~ered Species Act and other Federal mandates. The Board
of County Commissioners reserves the right to enforce new or different standards of
development mandated by federal or state law, such as the EIi~angered Species Act.
3.13.3 Notwithstanding the foregoing, the Uniform Building Code,
Uniform Fire Code and other construction codes in effect on the date of the development
application, building permit or other construction application shall apply, except no code
changes after the date of this Agreement shall require retrofitting or modification of
utilities, facilities or other infrastructure which are installed or approved to be installed in
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accordance with this Agreement unless such retrofitting or modifications are required to
. avoid a serious threat to public health or safety
3.14 After Termination. Any development applications for Pope Property
submitted after the expiration of this Agreement shall be vested to the development
standards in effect at the time of the submission of a completed development application,
pursuant to the then-effective state and local law.
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3.15 Ludlow Bay Village Plat.
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3.15.1 The parties acknowledge that development of the resort complex
may require alteration of the Ludlow Bay Village Plat. One option the parties may
exercise regarding any required plat alteration is to process and consider the plat-
alteration in conjunction with (or on a parallel track with) the resort complex proposal.
Alternatively, if the plat alteration is not decided until aRer the resort complex proposal
has been decided, the County shall ensure that any approval of the resort complex is
conditioned or made contingent upon approval of any required plat alteration.
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3.15.2 Any application for alteration of the Ludlow Bay Village Plat
shall be processed pursuant to the County land use procedures ordinance and applicable
state law. A public hearing shall be uired necess plat alteration, and the
review proce~s shall consid~the s.titw.a in RCW 58.17.215 controlling plat altetation~.
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.4. . GENERAL PROVISIONS
4.1
GOVERNING LAW
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This Agreement shall be governed by and interpreted in accordance with the laws
and regulations of the State of Washington.
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4.2 BINDING ON SUCCESSORS AND SUCCESSORS IN TITLE;
ASSIGNMENT; RELEASE OF LIABILITY
4.2.1 This Agreement shall be binding upon and inure to the. benefit of
the successors, successors in title and assigns of Pope and each of its related entities
executing this Agreement and upon the County.
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4.2.2 Assignment. The parties acknowledge that development of Port
Ludlow may involve sale and assignment of portions of the Pope Property to other
persons who will own. develop and/or occupy portions of the Pope Property and
buildings thereon. Pope shall have the right to assign or transfer all or any portion ofthe
respective interests, rights or obligations under this Agreement or in the Pope Property to
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other parties acquiring an interest or estate in all or any portion of the Pope Property,
including transfer of all interests through foreclosure Gudicial or non-judicial) or by deed
in lieu of foreclosure. Consent by the County shall not be required for any transfer of
rights pursuant to this Agreement.
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Upon the transfer or assignment under this Section 4.2.2, where the
transferee agrees to assume obligations hereunder pertaining to the property transferred
or assigned, the transferee shall be entitled to all inten:sts and rights and be. subject to all
obligations under this Agreement pertaining to the property transferred or assigned, and
Pope shall be released ofliability under this Agreement for the property transferred or
assigned, but shall retain liability for any breach which occurred prior to the transfer of
rights to another party and for those portions of the Property still owned by Pope.
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4.2.3 Release of Liability. Pope shall be released of all liabilities and
obligations under the Agreement if: (a) Pope provides notice to the County of an
assignment of the Agreement and (b) the assignee has assumed in writing the obligations
of the Agreement. If the conditions for release are met under this sub-section, then from
and after the date of transfer, Pope shall have no further liability or obligation under the
Agreement, and the assignee shall exercise the rights and perform the obligations of Pope
under the Agreement for that portion of the Pope Property acquired by the successor or
assign. The parties acknowledge that Pope may transfer or assign title to a portion of
Pope Property in any manner consistent with this Agreement. Should the .transfer or
assignment of title relate to only a portion of Pope Property, then the release of liability
pursuant to this paragraph shall only apply to acts or omissions arising from or related to
the portion of Pope Property being assigned or transferred.
4.3 RECORDING; RELEASE AS TO RESIDENTIAL DEVELOPMENT
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This Agreement shall be recorded with the Jefferson County Auditor against the
Pope Property as a covenant running with the land and shall be binding on Pope, its
successors, successors in title and assigns. Upon the approval ora final plat, a
condominium declaration or other approved land division in compliance with this
Agreement that relates to residential development of Pope Property, then there shall be
executed and recorded with the Jefferson County Auditor a release of the covenant solely
with respect to that particular and specific parcel or parcels of real property that received
fmal plat approval, filed a condominium declaration or was the subject of other approved
land division, provided however, residential development shall continue to be subject to
any conditions, covenants and restrictions applicable to the particular property.
4.4 INTERPRET AnON; SEVERABILITY
4.4.1 Interoretation. The parties intend this Agreement to be
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interpreted to the full extent authorized by law as an exercise of the County's authority to
enter into such agreements, and this Agreement shall be construed to reserve to the
County only that police power authority which is prohibited by law from being subject to
a mutual agreement with consideration. The parties acknowledge the County has police
powers, contracting authority and other powers granted by the Washington State
Constitution and by general law, including without limitation home rule charter authority,
authority to enter into interlocal agreements (see RCW Ch, 39.34), statutory enabling
legislation and authority to adopt development regulations as part of annexations (see
RCW 35A.14.330), and the Development Agreement Statute (see Ch, 347, 1995 Wash.
Laws, Part V, 9 501-06).
4.4.2 Severability. If any Material Provision ofthis Agreement
is determined by a court of law to be unenforceable or invalid, then the remainder of the
Agreement shall remain in full force and effect. Furtht;!', as to those Material Provisions
held by a court of law to be unenforceable, the parties shall confer and agree to amend the
Agreement to implement the' mutual intent of the parties to the maximum allowed by law.
4.5 AUTHORITY
The County and Pope, and the related Pope entities that are parties to this
Agreement, each represents it has the respective power and authority to execute this
Agreement.
4.6 AMENDMENT
This Agreement shall not be amended without the express written approval of the
County and Pope (or its successors, successor in title 'and assigns with respect to the
property in which they have an interest). The Board of County Commissioners must
approve all amendments to this Agreement by ordinance or resolution and only after
notice to the public and a public hearing.
4.7 EXIDBITS AND APPENDICES
Exhibits 1. 2 and 3 and Appendices A throu~ F are incorporated herein by this
reference as if fully set forth. In the event of any conflict or inconsistency between the
Exhibits and Appendices and the main body of this Agreement. the main body of this
Agreement shall control.
4.8 HEADINGS
The headings in this Agreement are inserted for reference only and shall not be
construed to expand, limit or otherwise modifY the terms and conditions oftrus
Agreement.
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4.9 TIME OF ESSENCE
Time is of the essence oftrus Agreement in every provision hereof. Unless
otherwise set forth in this Agreement, the reference to "days" shall mean calendar days.
If any time for action OCCurs on a weekend or legal holiday, then the time period shall be
extended automatically to the next business day.
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4.1 0 INTEGRATION
This Agreement represents the entire agreement of the parties with respect to the
subject matter hereof. The~e are no other agreements, oral or written, except as expressly
set forth herein.
4.11 DISPUTE RESOLUTIONIMEDIATION
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In the event of any dispute relating to this Agreement, all parties upon the request
of any other party shall meet within the five (5) business days to seek in good faith to
resolve the dispute. The County shall send a department director or the qualified lead
planner (Section 1.50 of Appendix A). and other persons with information relating to the
dispute, and Pope shall send an owner's representative and any consultant or other person
with teclurical information or expertise related to the dispute. lfthe parties are unable to
reach an amicable resolution ora dispute within fourteen (14) days of the written notice
of dispute issued by one of the parties, .the panies agree that they will immediately
identify a mediator and participate in mediation in good faith. The selected mediator
shall have documented experience and expertise in Washington land use law. The
mediation shall be completed within 60 days of the original written notice of dispute by
one of the parties. The parties agree to work cooperatively to select a mediator with land
use and real estate experience. Each party will identify and propose to the other party
three potential mediators. Between the proposed mediator lists, the parties will select a
mutually agreeable mediator to resolve the dispute. If the parties are unable to reach a
resolution following timely mediation, each party reserves the right to seek resolution and
pursue remedies available under this Agreement and at law. The parties agree that the
cost of mediation pursuant to this paragraph shall be borne equally by the parties to this.
Agreement.
4.12 DEFAULT AND REMEDIES
No party shall be in default under this Agreement unless it has failed to perform a
material provision under this Agreement for a period of thirty (30) days after written
notice of default from any other party. Each notice of default shall specify the nature of
the alleged default and the manner in which the default may be cured satisfactorily. Ifthe
nature of the alleged default is such that it cannot be reasonably cured within the thirty
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J,"el'lon County, WA !lOPE RElOURCES RUO SM..H
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(30) day period, then commencement of the cure within such time period and the diligent
prosecution to completion of the cure shall be deemed a cure. Any party not in default
under this Agreement shall have all rights and remedies provided by law including
without limitation damages, specific perfonnance or writs to compel perfonnance or
require action consistent with this Agreement. In recognition of the possible assignment
and sale of portions of the Pope Property (see Section 4.2.2), any claimed default shall
relate as specifically as possible to the portion of the Property involved and any remedy
against any party shall be limited to the extent possible to the owners of such portion of
the Pope Property. To the extent possible, the parties to this Agreement shall seek those
remedies which do not adversely affect the rights, duties or obligations of any other non-
defaulting owner of portions of the Pope Property under this Agreement. The prevailing
party (or the substantially prevailing party if no one party prevails entirely) shall be
entitled to reasonable attorneys fees and costs.
4.13 NO THIRD PARTY
This Agreement is made and entered into for the sole protection and benefit of the
parties hereto and their successors, successors in title and assigns. No other person shall
have any right of action based upon any provision of this Agreement. Members of the
general public shall not have any cause of action or enforceable rights under this
Agreement.
4.14 CONSTRUCTION
This Agreement has been reviewed and revised by legal counsel for all parties and
no presumption or rule that ambiguity shall be construed against the party drafting the
document shall apply to the interpretation or enforcement of this Agreement.
4.15 NOTICE
All communications, notices and demands of any kind which .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:
Jerry Smith
Qualified Lead Planner
Jefferson County. Department of Community Development
621 Sheridan Street
Port Townsend. WA 98368
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Board .of County Cammissioners
P.O. Box 1220
Port Townsend, W A 98368
To Pope:
Greg McCaay
19245 10th Avenue N.E.
P.O. Bax 1780
Poulsbo, W A 98370
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4.16 ESTOPPEL CERTIFICATES
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Within 30 days following any written request that any party or a Martgagee may
make from time to time, the other party shall execute and deliver to the requesting person
a statement certifying that: 1) this Agreement is in full force and effect, and stating any
formal amendments to the Agreement; 2) to the best of the knawledge of the certif.ying
party, na natice .of default has been sent and na notice .of violation of applicable laws has
been issued regarding the praject;and any other reasanably requested infarmatian.
Failure to provide a timely response to the requesting party shall be deemed conclusive
evidence that the Agreement is unmodified. and in full force and effect and that no notices
of default or vialation have been issued. Issuance of estoppel certificates is an
administrative matter within the County: The Caunty shall have na liability to the
requesting party if it provides an estoppel certificate in gaod faith and with reasonable
care.
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4.17 COOPERATION
The parties shall not unreasonably withhald requests for information, approvals or
consents provided for in this Agreement. The parties agree ta take further actions and
execute further documents, whether jaintly or within their respective pawers and
autharity, to implement the intent of this Agreement.
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4.18 INDEMNIFICATION
Except as otherwise specifically provided elsewhere in this agreement and any
exhibits hereto, and ta the fullest extent passible under the law, each party shall protect,
defend and indemnify and hold harmless the other parties and their .officers, agents and
employees, or any of them, from and against all claims, actions, suits. liability, loss,
casts, expenses and damages .of any nature whatsoever, which are caused by .or result
from any negligent acts or omissians of the indemnifying party's awn officers, agents, or
employees in performing services pursuant to this Agreement. If any suit based upon
such a claim. action, loss, liability or damage is brought against any party or parties, the
party or parties whose negligent acts .or omissions give rise to the claim shall defend all
parties at the party .or parties' sole cost and expense, and if a final judgment is rendered
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against the other party or parties or their officers, agents or employees or jointly the
parties and their respective officers, agents or employees, the parties whose actions or
omissions give rise to the claim shall satisfy the same; provided that, in the event of
concurrent negligence, each party shall indemnify and hold the other parties hannless
only to the extent of that party's negligence. This indemnification hereunder shall be for
the benefit of the County as a municipal entity and not for the benefit of the general
public. Under no circumstances will the County be responsible for costs, claims, losses,
damages or expenses associated with the existence or enforcement of any conditions,
covenants and restrictions recorded against the residential properties within the Port
Ludlow MPR.
4.19 NO WAIVER
No waiver by any party of any term or condition of this Agreement sh<\ll be
deemed or construed as a waiver of any other term or condition, or a waiver of any
subsequent breach, whether ofthe same or a different provision of this Agreement.
4-20 NO PRlV ATE CCR ENFORCEMENT BY COUNTY.
The parties acknowledge and .agree that nothing in this Agreement shall alter,
infringe upon, modify. change, limit or restrictthe ability or powers ofthe existmg
neighborhood, tract or subdivision property owner or lot owner associations from
enforcing, interpreting and utilizing any and all covenants, conditions or restrictions that
pre-exist this Agreement or covenants, conditions or restrictions recorded with the
Jefferson County Auditor after the effective date of this Agreement.
The parties further acknowledge and agree that Jefferson County bears no
responsibility for the enforcement, interpretation or resolution of any dispute, filing,
grievance, complaint Or appeal that might arise as a result of recorded covenants,
conditions or restrictions relating to tracts, subdivisions, lots or parcels within the Port
Ludlow MPR. Pursuant to Section 4.13, no third party may use the dispute resolution
mechanism provided within this Agreement to resolve disputes regarding recorded.
covenants, conditions or restrictions associated with the Port Ludlow MPR.
4.21 QUALIFIED LEAD PLANNER.
Pursuant to Section 1.50 of the Port Ludlow ?vIPR Zoning Code chapter, the
Director of Community Development shall appoint a qualified planner to serve as the
lead planner for the Port Ludlow MPR. The lead planner shall review or coordinate
review of all land use applications with the Port Ludlow MPR boWldaries, and shall serve
as the initial point of contact for citizens seeking information on development proposals
or planning issues in the community.
devagmlfinal
February 11. 2000
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The term ofthis agreement shall be twenty (20) years from the effective date.
The effective date shall be the date Qfthe adoption of a resolution by the Jefferson
COlmty Board of CoUnty Conunissioners approving this Development Agreement.
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4.22 TERM
4.23 EFFECTIVE DATE.
Commissioners
APPROVED AS TO FORM:
AI Scalf
Director of Community Development
devagmlfinal
February 11. 2000
111111111111:~~~~l~
J.trer.on COlI'Ity, WA POPE MIOUReIS MSO ,....
JEFFERSON COUNTY
Jefferson County Board of COUnty
'blYJoo
By
f)M,~~
By
5)S}OO
15
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February II. 2000
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J.".,..On Count.,., 1M POPE RESOllRCEI RESO IIM.II
POPE RESOURCES e
Estate
OLYMPIC PROPERTY GROUP LLC
OLYMPIC RESORTS LLC
-
Officer
J;;;TEiS;;~fNC'
By Tom Griffin /!) .
Its President and Chief Executive Officer
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OLYMPIC REAL ESTATE DEVELOPMENT LLC
hief Executive 0 cer
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J.".rlon COI.ntV. 1M POPE RESOURCES ItESO 61l8.el
Attachments:
Exhibit I - Legal description of Pope Property
Exhibit 2 - Map of Pope and subsidiary company properties
Exhibit 3 - Port Ludlow ?v1PR Land Use Map (recordable version of Aug. 28, 1998
Comprehensive Plan map)
Appendix A - MPR zoning chapter, Ordinance # 08-1004-1999 .
Appendix B - Comprehensive Plan policies reo p~. 6'.... ~solution No. 72-98) ___
Appendix C - Stormwater Management Ordinan # 1 0-11 04-96
. Appendix D - Interim Cri.tical Area Ordinance # 05-0509-94 as amended by Ordinance
#14-0626-95 ~
Appendix E - Land Use Application Procedures Ordin~e# .Q~_~
Appendix F - Shoreline Master Program . ~ -.
I
STATE OF WASHINGTON)
) ss_
COUNTY OF JEFFERSON )
On this i-G'J day of M~ .2000, before me, a Notary Public in and for
the State ofWasrungton, personally appeared Greg McCany, 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 was authorized to execute the instrwnent, and
acknowledged it as the Senior Vice-President of Real Estate for Pope Resources, to be
the free and voluntary act and deed of said corporation for the uses and purposes
mentioned in the instrument. .
and year first above written.
)w~ vv.d x
NOTARY PUBLIC in and for the State of
Washington, residing at l"t>iY ~bo
My appointment expires 'f( -:J.Ootf
Print Name M1Che'11 e vu;! CO X
devagmllinal
February II, 2000
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Je tt er ICll'l (;O\ll'I h', \Ml pOl'E RE,S.OUltCEf> ,,~..
,01' W ~SHINGTON )
) 55.
in' OF JEFfERSON )
On this ~ d.y nl M 1J..i----' 2000, helore me, · NotarY Puhlic in and lor
tate 0 IW ashington, ve;;;;;:iJ.J 'VVeared Greg McCartY, Ver50nally known to me (or
ed tn roe on the hasis of satisl.ctOry evidence) to he the Versoo who ""ecuted \his
iIlment, OU o.th stated thot he was .uthorized to. ""ecute the ins""",,:,,t, and
nowledged it as the vreSident and Chief O\>erating ollieer nl OlymP'C proVertY GroUV
C, . whollY owned subsidiarY olPope Resources, to}>e the frec and voluntarY act and
,d 01 said coq>Oration for the useS and vurposes ",,,,,tiooed 1tl the ms""",ent.
nd 'leaf first above written.
51 ALE OF W A51llNGTON )
) 55.
COUNlY 01' JEffERSON )
On \his ~ d.y 01 ~ 21)()0, helote ",e, · NotarY Public in ar
the State 01 wasbinglon, J><'son.lly 'VVeared Greg MCCartY, perSOn.llY known "
proved to me on the basis of satislactory ",idence) to be the Verson who execute<
instJ:UDlent, on o.th st.ted th.t he w" .uthorized tn execute the ms""",ent, and
.cknOwledged it .. the President and Chiel ll<ecutive orlicer 01 OlymV'C Real'
D""clopment 1l.C,' wholly owned ..bsidiarY 01 pave Resources, to be the [rer
voluntarY act and deed 01 said corporation for the useS and purposes ment,oned
instf\llUent.
otvagmtfina\
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J_"_rIOl'l County, WA POPt /tESOUltCEt ROO aM.M
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NOTARY PUBLIC in and for the State of
Washington, residing at Pt91Z/s:HO
My appointment expires if I'l-l ').c)O if
Print Name Mit;ht'fJi? 0h1 CO K
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STATE OF WASHINGTON)
) 55.
COUNTY OF JEFFERSON )
On this / S't'""" day of M€Y4t. ' 2000, before me, a Notary Public in and for
the State of Washington, personally appeared Greg McCarry, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who executed this
instrwnent, on oath stated that he was authorized to execute the instrument, and
acknowledged'it as the President 'and Chief Operating Officer of Olympic Property Group
LLC. a wholly owned subsidiary of Pope Resources, to be the free and voluntary act and
deed ofsaid corporation for the uses and purposes mentioned in th instrument.
WI.
IN WITNESS WHEREOF, I have hereunto set F the day
and year first above written. '.!If-.~~. . ~'.e':.f.. .
2:8 01ARY e. it
~: ~ ic :).
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OF WS -':
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NOTARY PUBLIC in and for the State of
Washington, residing at ~t:)ltt.f"bCJ
My appointment expires 4-/tf/2tJO'!-
Print Name A.//:t'he/Je. w;1 {OX
devagmlfill/ll
February 11.2000
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J.rr.rlon Counly \fA POPE RES"'.......... II/M/2m 11'.4eA
, """'''''''.. RESO SH.et'
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ST ATE OF WASHINGTON)
) ss.
COUNTY OF JEFFERSON )
On this Ji!- day of tvlC/ 't ,2000, before me, a Notary Public in and for tbe
State of Washington, personally app ared Tom Gnffm, 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 was authorized to execute the instrument, and
acknowledged it as the President and Chief Executive Officer of Olympic Water and
Sewer, Inc., to be the free and voluntary act and deed of said corporation for the uses and
purposes mentioned in the'instrument.
tot.
NOTARY PUBLIC in and for the State of V\I,
Washington, residing at ,,~g-j,O
My appointment expires t/ otfj z..ooLf-
Print Name M; r;. VI e" e- wit c () X
ST ATE OF W ASHlNGTON )
) ss.
COUNTY OF JEFFERSON )
~
On this X day of "l1J.~ ' 2000, before me, a Notary Public in and
for the State of Washington, personally a eared €; e.hCtR iJ \Do~+ ,
~ t..J id A R P <:) L~ and ., personal y known to me (or
proved to me on the basis of satisfactory evidence 0 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 Coooty
Commissioners to be the free and volootary act and deed of said Board, acting in their
official capacity representing Jefferson Coooty, Washington for the uses and purposes
mentioned in the instrument.
devagmUinal
February II, 2000
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IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day
and year first above written.
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February II. 2000
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LAND USE AND RURAL -.
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Table 3-1
Jefferson County and City of Port Townsend
20-Year population Projection and Distributionl
Jefferson County and City of Port Townsend Est. population Est. population
26-year population Projection and Distribution 1996 2016
Incorporated Areas:
Port Townsend 8,366 T 13,876
Unincorporated Areas:
Quimper Peninsula (including Glen Cove) 2,927 4,076
Marrowstone Island 839 1,0\5
Tri-Area (Kala Point, Irondale, Port Hadlock, and
Chimacum Crossroads) 4,324 5,489
Discovery Bay (including Gardiner) 1,085 \,470
S. Chimacum I Inland Valleys I Center 1,35\ 1,759
Port Ludlow Master Planned Community 1,326 3,950
North Port Ludlow 659 950
Paradise Bay I Shine I Thorndyke 897 1,471
Toandos Peninsula (including Coyle) 411 596
Quilcene (including Lake Leland Valley) 1,308 1,797
Brinnon \,299 1,943
West End 962 1,005
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Total 25,754 39,397 ...-
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RURAL RESIDENTIAL LANDS: ALLOCATION OF GROWTH
Existing residential land use and ownership patterns a<e only one of seve<lll faetors for determ,ning
futun: development patterns in Jeffersun County. The all0<3tion offuture population must be eonsidered
when aualyzing the overail need for the creation of additional residential lots and determining when:
those lots should be located to accommodate future growth. In order to develop a rural residential land
use strategy for this Plan, an inventory was prepared in \996 tn asseSS existing patterns of iand use, and
to evaluate the supply of developable rural residential properties.
During th. review of the Dmft Comprehensivo pion of Fehruary 26, 1997 (Dmft Plan) an inventnry of
existing buildable residential lots in rnral Jefferson County conducted ,n 1995 by Berryman and Heniga<'
was a Iso reviewed- The 1995 study n:sults and included io the Draft Plan differ from those derived in the
1996 inventory. Both the 1996 inventory performed by the Planning staff and rhe 1995 Berryman and
Henigar inventory are discussed in the following section.
, Pnpulation projections and allocat,on ngures were derived from ,he Popuwllon F o,eem' fo, Jefferson County ond
Port lownsend' Finoi Report, IJ<c,mbe<, t 994, and Addend.m #I to ,h, F'nal Repar', february, 1995, pn:par,d by
e the Watterson West Group. Inc.
'''Land Use C"P"'ity," D,aft Ex',/i"" Conditions Repart' Alterna'i'es, Ben)'man and Hen;."" Moreh, t995, pages
\20-13 t.
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( Jefferson County Comprehensive Plan 3-4 August 28, 1998