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Home My WebLink AboutLog069 . . e ~ ' PoHution Control HE"arings Board Shurel in~ Hearings Board Forest Practices Appeal; Board Hydraulic Al"jJeals Board . Environmental and Land Use Hearings Board Telephone: (360) 459-6327 FAX: (360) 438-7699 Email: eho@eho.wa.gov Website:www,eho.wa.gov STATE OF WASHINGTON ENVIRONMENTAL HEARINGS OFFICE !RECEIVED JUL 1 /) 2ll1JS David W. Alvarez JEFFERSON COUNTY OeD Chief Civil Deputy Prosecuting Attorney Jefferson County PO Box 1220 Port Townsend WA 98368 Mailing Address: PO Box 40903, Olympia, WA 98504-0903 Phvsical Address: 4224 - 6th Ave. Sf, Bldg. 2, RoweSix, Lacey, WA 98504-0903 July 18, 2006 Leslie A. Powers 3502 Tieton Drive Yakima W A 98902 Rick Rozzell 41 Windrose Drive Port Ludlow W A 98365 Marco De Sa E Silva DAVIS WRIGHT TREMAINE LLP 2600 Century Square 1501 Fourth Avenue Seattle WA 98101-1688 (For Port Ludlow Associates LLC) Donald E. Marcy CAIRN CROSS & HEMPLEMANN 524 Second Avenue Suite 500 Seattle WA 98104-2323 (for Trendwest Resorts Inc.) RE: SHB NO. 05-029 LESLIE A POWERS & RICKROZZELL v. JEFFERSON COUNTY, TRENDWEST RESORTS, INC. & PORT LUDLOW ASSOCIATES LLC Dear Parties: Enclosed please find an Order on Reconsideration. This is a FINAL ORDER for purposes of appeal to Superior Court within 30 days, pursuant to WAC 461-08-570 and 575, and RCW 34.05.542(2) and (4). Sincerely yours, u~y~ William H. Lynch, Presiding WHL/jg/S 05-029 Cc: Don Bales - Shorelands, Ecology Jefferson County Dept of Community Development Enc. CERTIFICATION On this day; I forwarded a true and accurate copy of the documents to which this certificate is affixed via United States Postal Service po!tage prepaid to the attorneys of record herein. I (;ertifY under pernlty of perjury under the laws of the State of Wash' gt n ~ he fi egoing is true and correct. DATED c:J ,atLacey, WAi..OG ITEM c'" :.t,~ -", v- I _of 6- o e~18 , . e _""", "",_ ~.,y ~-'f X.';~l .,..,.,..~ \1,'\ ..' .',i :1.;" ~ -\l 1l-4'\ iir.,jiV ({reA- lUll" '/! t 1 BEFORE THE SHORELINES HEARINGS BOARD STATE OF WASHINGTON JUL 19 2006 JHfERSON COUNTI oen 2 LESLIE A. POWERS and 3 RICK ROZZELL, 4 Petitioners, SHB 05-029 5 ORDER ON RECONSIDERATION v. 6 JEFFERSON COUNTY; TRENDWEST 7 RESORTS, INC.; and PORT LUDLOW ASSOCIATES, LLC, 8 Respondents. 9 10 On May 17, 2006, the Shorelines Hearings Board (Board) issued an Order on Motions, 11 which denied summary judgment on all motions and remanded the case back to Jefferson 12 County. The decision was based upon the conclusion that Jefferson County failed to follow its 13 own procedures for hearing the appeal, and that the County had not issued a final decision with 14 respect to the shoreline substantial development permit at issue. The Board was comprised of 15 William H. Lynch, presiding, Kathleen D. Mix, Judy Wilson, Kevin Ranker, and Judy Barbour. 16 Respondents Jefferson County, Trendwest Resort~, and Port Ludlow Associates LLC (PLA) filed 17 a Petition for Reconsideration with the Board. Petitioners Leslie Powers and Rick Rozzell 18 oppose reconsideration. The Board 1 reviewed the following material in considering the Petition 19 for Reconsideration: 20 21 1 Mr. Ranker was unable to take part in the reconsideration ofthis decision due to scheduling conflicts, SHB 05-029 ORDER ON RECONSIDERATION 1 . -- 1 1. Respondents' joint Petition for Reconsideration; RECEIV1E1D JUL 1 9 2006 JEffERSON COUNTY DCO 2 2. Petitioners' Brief in Opposition to Motion for Reconsideration; 3 3. Declaration of Leslie A. Powers and attached exhibit; 4 4. Declaration of Rick Rozzell; and 5 5. Petitioners' Reply Brief. 6 Based on the record in this case, and the materials submitted in the Motion for 7 Reconsideration, the Board makes the following ruling: 8 9 Respondents have requested the Board to reconsider its decision and advance three main 10 arguments in support of their request. The first issue raised by Respondents is that the Board's 11 Order issued on May 17th is inconsistent with the letter sent to the parties on April 5,2006. The 12 second issue raised by the Respondents is that they have relied to their detriment on the April 5th 13 letter by entering into a stipulated order based upon this letter. Finally, the Respondents believe 14 that the Board should proceed with a de novo hearing in order to promote administrative 15 efficiency. 16 The April 5, 2006, letter from the Board states: 17 The Board has denied all the motions and the case will proceed to hearing. The Board 18 believes the initial hearing examiner for Jefferson County erred by separating the substantial development permit from the rest of the appeal and sending this permit to the 19 Department of Ecology. By doing so, the County failed to follow its own procedures that dictate further review by the appellate hearing examiner. Jefferson County therefore did 20 not make a final decision on the permit at issue. The Board believes, nevertheless, that it is appropriate for the de novo hearing to continue before the Board rather than a remand 21 to the County. SHB 05-029 ORDER ON RECONSIDERATION 2 . e 1 Board's letter to the parties, April 5, 2006. RIECEK\lJED JUL 1 9 2006 JEFfERSON CnmJTY D CD 2 The Board's Order, dated May 17,2006, followed the same reasoning for reaching its 3 conclusion, except that the Board remanded the case rather than proceeding with a de novo 4 hearing before the Board. Prior to the issuance of the Order, the Board held another discussion 5 and concluded it only has jurisdiction over appeals of final decisions and that a remand was the 6 appropriate action. Nothing else in the Board's analysis changed. Respondents contend they 7 had negotiated a settlement with the Petitioners based upon the April 5th letter, but the Petitioners 8 are no longer willing to abide by the settlement because of the remand language contained in the 9 Board's May 1 ih order. Respondents request that the Board modify the May 1 ih Order to 10 reflect the language contained in the April 5th letter. Petitioners object to the language circulated 11 in the proposed Order of Dismissal by a mediator but indicate they are willing to perform their 12 stipulation to sign an order of dismissal with language that they believe reflects the stipulation. 13 Respondents contend that because the Petitioners refuse to approve the particular language 14 circulated by the mediator, they have relied to their detriment on the Board's April 5th letter. 15 Respondents' detrimental reliance argument is not well-taken. The April 5th letter clearly states: 16 "The opinion by the Board will follow shortly. This letter does not constitute the formal opinion 17 by the Board and is not subject t<? appeal." The letter confers no rights and provides no basis for 18 detrimental reliance, especially since it is consistent with the subsequent Order by the Board 19 except for the remand action. It appears that the failure to sign an order of dismissal is based 20 upon the language contained in that proposed order rather than upon any actions by this body. 21 SHB 05-029 ORDER ON RECONSIDERATION 3 -- e 1 RECEIVED JUL 1 92006 JfHf ,MW r n u ~T/ c.' '~T JI ~.hi.; ...il;~ t. ~ iMJl The Respondents believe that administrative efficiency may be better served if the Board ~ 2 would proceed to a de novo hearing. The Respondents may well be correct, because this was the 3 reason why the Board initially decided to proceed with the de novo proceeding. However, 4 administrative efficiency cannot confer jurisdiction on the Board. As discussed in the Board's 5 Order, RCW 90.58.180, WAC 173-27-130, and prior Board decisiol)s limit the Board's 6 jurisdiction to review of final decisions by the local government. Because the Board determined 7 that Jefferson County did not render a final decision on the permit in question, the Board has no 8 jurisdiction to hear this appeal and a remand is appropriate. 9 10 The Board believes that two points raised by the Respondents should be addressed in this Order of Reconsideration. The Board agrees with the Respondents in that the Board's May 17th 11 Order on Motions that the Board should have granted the Petitioners' SUl11mary Judgment 12 Motion rather than denying all motions. The Respondents express concern over which appeal 13 process must be followed on remand. Although the Board believes that the LUPO process is 14 probably the appropriate process because the permit was filed pursuant to that process, it is up to 15 Jefferson County to make that procedural determination. 16 17 18 19 20 21 SHB 05-029 ORDER ON RECONSIDERATION 4 " . -- It 1 ORDER 2 RECEIVED JUL 1 9 2006 JEfffHSUI C~Vi~rY Dell 3 The Petition for Reconsideration is DENIED, except the Petitioners' Motion for SHORELINES HEARINGS BOARD iJ~Yr WILLIAM H. LYNCH, P eSldmg ~U~b, ~ ](A HLEEND. MIX, ember ~~~g~ JUDY~ber .B. B~ JUDY BARBOUR, Member 4 Summary Judgment seeking a remand is GRANTED. 5 Done thiS/~ of ,2006. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 SHB 05-029 ORDER ON RECONSIDERATION 5