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Home My WebLink AboutLog094 POWERS & THERRIEN .a~:509-453-0745 Jul 22 20tlt11:33 . i Powers & Therrien, P.S. . 3502 Tieton Drive Yakima, WA 98902 S09-4S3-8906 Fax 509-453.0745 P. 01 TO: BARBARAN\lOilTINGALE Fu: # 360-379-4451 Co: JEFFERSON ~UNIY Date: July 22, 2006 Frtm1: LE:S POWER Pages: 34 (Includes Cover Page . Re: Ludlow Cove 2 - Res ons'e on Amendment to Posed Development reemcnt Q'OrYoUt~tiOhI CPbrVourR:evie'w CPleaseCommcnt OlardCopytoFollowviaMail I i j I · ;. i. · · · '. Notes. CONF'rRMArlON OF EMAlL - PLEASE FILE IN RECORD. THANK YOU. . RECEIVED JUl2 4 2006 JE&~ [im;~"~ gjCTIl ! ! Should you: experie~e any problems with this transmission please call Diane Sires at phone number 509-453;'8906. ! .1. I . . i Tbi$ mcsuge ig int~e~the 'Use of the mdividual or eJ1tity to which it is transmitted lQI(\ may contain i11f'ormation thlit is privileged, i:wilideu' 1 $ld el('empt fI'om disclosure under applicable laws. If the reader of this communication is not the intcDd.~ t~ipiea you are hereby n\Jtiticd that IlfiY dissemination, dism'bution or copyi:i1g ofthia commw:U. cation is strictly prohibited. tt you have rcccived this communication in error, please notify us immediately by phone and rctutn th'e origittalco Ui.cation to uS at the address above via U.S. Postage Service, We will reimburse you for tbc mailing costs. Thll'nk yoJu. . I I I , '! , LOq G ITEM l.-( ge I of 25 . .... ' . .'. . ~ POWERS & THERRIEN ...ta~:509-453-0745 "1 J u I 22 20' 11: 33 P.03 STEPHEN K. CAS SEA Jefferson County Hearing Kaminer clo Barbara Nightingale, L' Planner Je:fferson.County C ty Developm.ent Departrnent: 621 Sheridan Port Townsend, W A 98368 . I . RE: Amendn1cnt No.1 t~ Port Ludlow DevelOl'ment Aereenmnt I ! RJECIEK,\TJED JUL 2 4 2006 JHHRSON COUNTY OeD July 21, 2006 Dear Mr. Casseaux: I own a towDhome in the P Ludlow MPR and am a resident at 44 Heron Rd., Port Ludlow, Washington. i based the toWDhome from Port Ludlow Associates, LLC, (PLftl'in December 2003. s such, I have standing to make the comments to PIA's proposed amendment to the development agreement entered in May, 2000, initially between Jefferson County Olympic Resources (the'Development Agreementr. By assigmnent in 2001, PLA is successor as developer to Olympic Resources. I wish to join the objections to the propos amendment submitted by Ms. Elizabeth Van Zonneveld . for the Port Ludlow Village Council cPL VC, and Ms. Moss, counsel for Mr. Lewis Hale. I adopt by reference their c ents. I attended the worbhop hel by the Jefferson County Boatd of County Commissioners at whichPLA and Trend We its putative assignee, presented the proposed, a.m.endtUent to the Development Agreem . My comments are based on my DOtes and recollections of events at the workshop. Th at, Mr. Helm spoke for Trend West. He recited 1. . that the prop sed Trend West development that would be pennitted on the Ludlow Cove n site under proposed amendment would be economically beneficial to Jefferson County and Ludlo Bay; 2. that it carrying jobs; 3. that the ~p arrangement under which the development would be owned is a not for profit corPoration administered by Trend West that owns about six thousand (6,000) vacation wbits shared by two hundred fifty thousand (250,000) vacation club ,members; . !' 4. that TreDdW-est sold perpetual, ammally renewable vacation rights evidenced by points isS1ied ~y the association to club members;2 . . L ! Resolution 42-00, Bxhibi:~A thereto. . 2. While this comment may be extrinsic w the bailie analysis co:ntaiDed lierein, Trend West by . admission sells vacation points en 'tling the owner to apply to use six thousand units owned by Tre:r1d ! , bring more than thirty five (35) or more full time benefit 1 .' t. .\ . . i! . ,-} , . :,. . ,', POWERS & THERRIEN 411fa~:509-453-0745 ! J u I 22 20' 11:34RJEt'~KVED JUL 2 4 2006 JHHRSON LOUNTY OeD 5. that club va~ation SC(lommodailims bers could trade the points and or cash to stay in any of the ged by Trend West through the arrangement; 6. that the po'w required scheduling and were acljusted for the value .ofthe . vacation property seleCted . the owner or user of the points such that the owner or user might also pay for all Or a . of the use with cash; 7. that there is' . ownership nexus or use right between any club member and any points that club r might own and any particular vacation facility; 10. that such~ use of the recreational . e the club members or other persons using their points the vacation units; 9. that the . . on fi1cilities had minimal recreational amenities and relied . on recreational amenities t be provided by'}mtnershi~'with local businesses; ership.'took the form of coupon books providing discount .ties to club members; 11. that no ~otel taxes Were paid to local govemment on the exchange of the points and other considera . by members and persons using members' points for the use of the vacation facilities.3 . . Mr. De Sa e Silva and~. mue, for PLA represented: . 1. ~t if the West project is apProved, PLA will donate and apply the proceeds from the sale ofth land to Trend West in the amount ofS3,600,OOO to the construction of a golf club ility; 2. that the Tren West project would bring additional consumers into Port Ludlow that will justifY the evelopment of a grocery store and other missing retail facilities; I . 3. that PL~A'" is c . tly losing money on the operation of the golf course (the ~Gl]f Coursd), the Harb . tel' Restaurant (the~staura:ot, and the Inn at Ludlow Bay with its restaurant (the~'Ind'; . West'if affiliated not for profit cWiem (the "Association". The AlilOOiaUon provides the oppommity to use the umtstbrough an alloeati. sylitem operated by Trend West. Trend West admits that the meuWerII do DOt own mteJe&ts in time or fe in any particular vacation unit, the legal requirement of a time share under WahiI1gton.law. See R.C 64.36,010(11). 3 A merobet of the B" whether the AS$o4;liauOI1 paid room tax. Mr. Hel:m deDied that it did. Please consider that the . iation membets buy their metnberships for cash, the membmhips entitlo the members to use t1U= mrl ,and Jefferson County does Dot see this as identical to room rent subject to taxes. Trend Welt ill a private atel that accepta pOoints or cash for rooms. Why would the County not collect its tax? ! 2 f t j POWERS & THERRIEN RECEX\YlED JUL 2 4 20nS JfHfRSON COUNTY OeD 4. that PLA ticipated the demand from the Trend West guests would make these economic ventures v able and profitable; 4IIla~:509-453-0745 Jul 2220.11:34 S. that wi Trend WestJ PLA would not continue to absorb the operational losses 8Ss6cia d with the Golf Course, the Inn, and the Restaurant; 6. . PLA and West will obtain substantial shoreline development permits for the project:as a result of the anticipated reconsideration of the Shoreline . Hearing Board's adverSe . . . on 0J1 the SSDP application;4 7. PLA and West will prevail in their LUP A Petition of Appellate Hearing Examiner Gaits d . . 1 of Hearing Bxaminer Berteis's approval of the Trend West project under existing' . ose the Trend West project are isolated property owners, erti.es, in the Port Ludlow MPR that do not reflect the best community. Now this makes a very'u and attractive proposition to Jefferson County, not itself endowed with major souro of tax revenue. If Jetl'etson County just bends the rules to permit Trend West on prop zo.tJ.ed under the Comprehensive Plan as single family detached with a maximum ity of four residential units.to the acre to olassify Trend .West as a multifamily resi tial use specially permitted by amendm.ent to the Development Agreement the Ludlow Cove II Plat, then 1efferson County and Ludlow Bay will reap significant ec nomic benefits. as well as additional retail opportunities to be provided by as yet UDdisclo ed merchants waiting in the wings to exploit the Trend West opportunity and by saving Om closure recreational facilities currently operated at loss 'by PLA. But for a fe~~ lemaked'ofwhich I am one, the economic, recreational, and retail interests of the L1.Jdlo' Bay community would be advanced by new jobs, new retail facilities and a new golf elu :&cility. Those few troublemakers were able to persuade . ARE Galt and the SlIB: of validity of their erroneous positions contrary to the interests of the Lud1owBa~ community, errors that will ultimately be recognized and resolved in favor ofPLA ~ Trend West. There are several problems I ith this story. First and most important, as shown by Ms. Moss, the proposal is ille8lld requires Jefferson County to ignore its Comprehensive Plan, the development re tion adopted by Jeft'elson County consistent with the Comprehensive Plan to. ss the development of a master planned resort from the . small resort located in the P Ludlow MPR, veSted land use rights applicable to the Port Ludlow MPR and enjoyed assignees by more than two thousand. residents or residential unit owners and . pts those same owi1eIs hold in covenants, conditions, and restrictions applicable to th, Port Ludlow MPR as a whole, vesting architectum1 and legal I · The Shoreline. HeariDg~ard. ("SHB;;) opimou. issued. It held that the SSDP Application had not beez1 approved by final. action, it had DO jurisdiction as a 1"esu1~ md that the matter is remanded to ]effencm Couaty for approval or . under its land usc pr~ol. Mr. De Sa c Silva may have been . optintistic about the re811lts of the lIB hearing. A copy of. the fiaal opinion is attached he1'eto u Exhibit A. i 3 I .:'T' POWERS & THERRIEN 20.11:35 RE~~ElVED JUL 24 2006 review authority over new llats developed within the Port Ludlow MPR after J~~~~J~~ CO UNlY 0 CO including Ludlow Cove nr ~a~:509-453-0745 ~ I . J u I 22 Secon~ to the extent it . des for additional amenities, particularly the golf club, it ignores both the fact that e facility has been promised by PLA for more than four years, long before Trend WC$t a: ared on the. scene, and that Trend West cannot cure the lack of viability of a golf club :t contains about two hundred members, only about a third of the number needed ccon 'cally to support a golf club and its related amenities. All that Trend West provide is~gre fees; That does not pay for infrastructure or its maintenance. Third, it does not deal Wi the reality that other than the Golf Club, the Restaurant, the . Inn, and the Marina, aU . by PLA, there are no public recreational amenities that are available to members of d West. The marina provides a few kayaks for rent. It has no sail boats, contrary to view expressed by Mr. Helm. There.are no businesses that want to establish recres: . support facilitios in the hope that a one hundred twenty unit private hotel will pro~~ scient demand to maintain them, !he only public beaches in the MPR are located, ne the hotel and the to'Wnhome plat. There is a trail system. However, the rights to ;it owned and operated through the PL VC and is not technically available to Trend Weat t will not share amenities with the PLVC. The tWo major recreational facilities, the y Club and the Beach Club are private and not Open to Trend . West guests. Thel~ini~"l creatiotial amenitiel'ofthe Trend West facility will not be open to the public, inc' . the residents of the Port Ludlow MPR. Finallys as ARB Galt de . ed in the final actiOll of Jefferson County and as the SHB determined as to the SSDPs the Proiect is not legal under either the zoning law in effect in 1995 when Ludlow Cove was proposed6 or 2000 when PLA's predecessOr agreed that , ~ 1 . r , ", , ~. . 5 . Development A .' Sec. 4.2.2, first Ilentenoe. 'That provisicm peu:nits tho develOpl!l1" to assign mterestll to pe1'S(ll1$ .who ~ Clown, develop and/Of'Occup)' portions of the Pope Property." The develOper reserved the right:to . intetests. in the Development A.8reem=t 01' Pope ProPertY to such perIODS. See DevelOpment Asre Sec. 4.2.2, second sente.1we. The provision of the Development Agreement denying third party b ciaricI!l excepts therefrom "succeuors, successors ill title and llSsigDa". Development Agn:ement Slc. 4t,3. The refe:rence to IUCCClllsors in title and the :refere:uce to MPope Pmporty" in 1000000ticm with "s essors" and c'assigQs" make it clear that the cxceptiOQ to thin!. party b=eticiary status unot limited assigns of the Dcvelopm.eDt Agreement itself. Persons who purchased pl"Qperty from thc developers or . assigns are also assigns or SUCCClSOfS in title llDd accordingly have rights aod standing under the apment Agreement. 6 Under the ruGA tb.a.t w declared invalid ill September, 1995, Ludlow Cove n wu zoned multiilmily residential. HE: . approved the Ludlow Cove n Plat in the ophDou issued July, 2002. See ARB 2 Log Item la. Tijere' he cmmeously clWactorized Ludlow Cove Il as zoned. single family residential as vested in 1995:that smiitted a multifamily CODditional use. The opinion is addi1icm.uy flawed by its failure to trace ;the t application. Had thi& been done, it would have been cleat that the application in fact lapsed in 1997 The opinion is fi:I1ally flawed because it failed to deal with the effect of the Development Agreement that pressly recognizes that Ludlow Cove n is zoned lingle filmily detached. PLA is a party to the [tlopmont AgreeJnel1t as successor to Olympic Resources lU1d. OllmlOt well say that it did not knOW' that t acquired a property zcmed other than as provided in the Developmeut . AgreenieDt. ID short, by entering e Development Agreement PLA voluntarily and kDowillg1y relinquished any right in vesting'" &t it might have enjoyod based 011 the proposal afme plat in 1995. A further review of Mr. B_g's opinion reveals that he seleetivc1y applied laud use law at the :request of I i I 4 POWERS & THERRIEN Ju I 22 2011. 11: 35 P.07 IT\rE.D'.. . RECEll ,/ . JUL 2 4 20nG Ludlow Cove.II would be eloped as zoned ~ the Comprehensive Plan ra,~f~O N CO UNH 0 CO as zoned in 1995.1 AHE t based his decision on the transient nature of the members OJ' gue5w that visit Tr~ est resorts, As admitted by Mr. Helm~ the stay averages three (3) days. Transientresi 'al use is use less than thirty (30) days in duratiOn. 8 In 1995, .the applicable zoning code d transient use as use of less than thirty days in duration. Such Uie becam commercial if accompanied by an exchange of consideration for the use. Transient use' cluded~\esortS'orfbotell'? The issue is eve.a.less doubtful ~a~:509-453-0745 I PLA, here applyiDg 1995 law there applying the UDC where PLA was be.aefited. Under East Coun~ Reclamation Co. v. Bjorns~ 12 WD.App. 432, 436, 437, 105 P.3d 94 (2005), the Court has held that vested rights in I specific landus may not be sclectiwly waived. The effect of such I selective waiver is to waive all of the rights clainied the original vesti:.ng thereby confirmi-ng what is evident fronl. PLA's execution of the DevelopmCnt Bmel1t, that it waived the rights to vest the property under land use law in effect In 1995 IIDd elected to ~e the law In effect in 2000 apply. ARB Galt was aware of the issue. He 1'>W'a~ded for a detCImination of proper zoning upon which a further analysis of allowable conditiODll1 use could be bued. Mr. Beiteig &ponded by reiterating his original view. As Mr. De Sa e Silva admitted at the workshop. Mr. Berteig's r onse has no legal effegt III long as the LUP A Petition remains pending and unresolved. Mt. Berteig gl. e notice ofrecusal OIl July 14, 2006. Mr. De Sa e Silva moved that Mr. Berteig reverse his lecusa!. Mr. erteig did so on July 17, 2006. The undersigned. neither accept Mr. Berteig's nwersal nor waive . rights to object to my order or decision ent(Rd by Mr. Bcrteig with . lespectto tho Port Ludlow MPR the basis of the legal e:ffect of the leeusallll1d .the justification thel:eof set forth in Mr. B~gls coitesp ndence that clearly shoW appeBflll1Co of f'airneJs is here an issue. 7 Vesting is a voluntary .. of a bawD right. It strains credulity to think: that Olympic Reio1.l1'CeJl did not know of its. ti unclcr the roGA or know that it was relinquiibing those rights by signing the Development A,gre which gave it twenty years of vesting protection. What ma1ces tbi& the more c!.eal' is that the Devel. Agfeeale4t oarved out the one plat, the Townhomc Plat that WI1lI partially developed at the time d vested it III of 1994 whan the prelimim1:ry plat application was initially filed. See Development Agrcem t, Sec. 3.13 IIDd 3.15. See Irvin Water Dist. No.6 v. JacksOll Partnershiu, 109 Wn.App. 113, 1 S, 34 P .3d 840 (2001) and !lent. Wuh. Bank v. Mend.e1l!on-Zel1er. Inc.. 113 WD.2d 346, 353, 779 P.2d 6 7 (1989); Ward v. Richards & Rossano. Inc., 51 Wn.App. 423, 434, 754 P.2d 120 (1988). . B lCC 18.10.200 defining ansient residencc:& under the Uniform Development Code, Arlicle 18, Ice. 9 ]eff'etSO:D. County 09-0801-94, the Jl1I:l'ferson County Zoning Code (l'the"ZouiDg Code"). Sec. 3.94. Read transie.ut use is use ofless than thirty days. That use becomes lDDIient accommodations if accompanied a commercial nexus, that is exchange of consideration. Ai AHB Galt recogDize~ the test is not wh the proposed use is or is not 1l'lmsient accommodations but whether the proposed use is either singl= or multifamily residential use. ABsuming, arguendo, HE Berteig's argument, multifamily residen' still requires that the unit be a dwelliDg unit, that is a unit ''phy&igaJly arranged 10 as to create an . dent houaekeeping establishment establishment for occupanoy by ODe family. .." See Zoning Code Sec. 3.32. Both single family and multifa:ttJily residencei arc built around dwelling units. See Zoning Code See. 3.89 and 3.69. Transient accommodations are characterized by a commercial nexus.. See Zoning Sec. 3.21. However, to meet the ConditiOll of single family or multifamily residential use, a dw Ding unit, that is a unit designed for 0CCU.pIJ1Cy md lmusekeeping by a lingle family is required. Rere, e use pzopOled by Trend Wert and PLA IIlUSt be characterized as transient accommodations. This Ilows because the members OJ:' gueatll use points, purchased with lUh, in exchange for the transient use of accommodation. AHE Galt reQognized this reality. He recognized the record that showed, u Mr. Helm . 'ts. the membera bUy and. exchange pe:n.mwe:nt vacation points for use ofunit$ OD a short tenn basis; No . in the ZanWg Code requires that the eonsidemtiOD be paid in cash to meet the "commercial" classi1ica ,"on. See ARB Galt Opinion of December 7, 2005, pp. 20.22. Assuming that PLA hili waived application M' 1995 llU1d use by executing the DeveloptneDt Agreement, the property is zoned single filmily detached ~th a maximum residential density of four unitll per acre which IIpecifically prohIbits mul~ u a conditional use. See Jefferson COUDty Ordinmcc 08..1004-99, See. 3.103; Development t, AppeDdix 3. . , , i , 5 ; .i .~ l ~:; . POWERS & THERRIEN ~a~:509-453-0745 RECEI\rE~L) Ju I 22 20it 11: 36 P.OS JUL 2 4 200S under the ~ Code that i applicable to Ludlow Cove IT. Referring to the J f f f t R SO N CO UNTY 0 CO Comprehensive Plan that s the Ludlow Cove II Plat zoned single family detached, the D~opmen~ A t adopting such zoning, and the MPR Code executing same, , there IS no question bu~ the Ludlow Cove IT Plat is zoned single family residential wiUl a maximum density 0 four (4) residences per acre and that conditional uses do not include even multifamily , sidential use, a classification that would apply under the proposod amendment to Development Agreement. Neither the amendment to residential density nor the e proposed therein comply with the MPR Code or the Comprehensive Plan. Mr. Dc Sa e Silvtis dese' on of the cummt state oflitigation and administrative appeals is not accurate. With one 0 appe11ant, the undersigned appealed the approval of the SSDP by Jefferson COU11ty .thout permitting an administrative appeal of the plenary decision of HE Berteig. SHE concluded, consistent with the petition, that the SSDP approved by the DOE in re nse to the filed application was invalid because the approval by Jefferson Co was not by final decision thereof. PetitioneJ.'S and Respondents agreed to req st dismissal of the petitiOll upon final order by the SHB incOIporating the co.uclilsio of the pzweding sentence that was included in the SHB memorandum. decision. Th SHB embodied that conclusion, dismissed the petition for lack of jurisdiction, aud r anded the matter to Jefferson County for final action. 'Ibis decision is consistent with requests of Petitioners and Respondents; Respondents complaint is that the SHB d not treat the SSDP as validly issued in its remand. It is important to distinguish b " een Mr. De Sa e Silva's rendition that mischaracterizes the facts and the descriptiOn l$et forth in this paragraph that $hoWl the actual response of the SHB.10 What is important i that the SHB recognized that Jefferson County ignored its own rules, violated due pro eBS rights of interested parties by depriving them of the right of administrative appeal, an treated the SSDP application approved by Jefferson County as a nullity consistent with i findings. SiI:Dilarly) Mr. De Sa e Silv 1nischaracterizes the CUIIentjudicial status of Ludlow Cove II. Mr. Berteigs decisiou a ving the decision ofDCD'Staffto approve PLA's characterization of a plat za single family residential as compatible with the development of a Trend We resort was reversed on '4'Mini~ative appeal by the "undersigned and MessrS. L " Hale and Ride Rozzell to the AHB. AIlE Galt decided that the record limited to th admitted by HE Berteig and the law showed the proposed use to be transient accomm dauons, a use precluded either under the Zoning Code or the ' , MPR Code for either single "1y or multifimrily residential plats. He reversed HE Berteig and remanded the tter for a decision on the issue as to proper zoning and 'conditional use. This is the decision of Jefferson County. PLA and Trend West filed a petition of AHEGalf decision. That petition is pending. PLA and Trend West have not even schedUled the jurisdictional hearing and seem in no hurry to have the Court review Mr. Galts decisfun. fair appraisal of the situation is that PLA and Trend West do not believe they will. ail in Court and are delaying the issue to seek a legislative solution to the pending' . ial issues. I I See SBB Final Order, ~bits A .hereto. I i 10 " 'Ii, . ' , : {' 6 POWERS & THERRIEN Jul 22 20.11:36 10 1r'l' ~~~IVED: ll'\., A '~ JUL 2 4 2006 To summarizeJ the law at e time the LUdlow Cove IT Plat application was tiled Wf~O N COUNTY 0 CO law otherwise in effect in e Ludlow Bay MPR, both prohibit the development of Ludlow Cove n as a Tren WeISt Resort. That conclusion is supported by AIlE GaIts decision that the Trend W t Resort is not a permitted use of the Ludlow Cove II Plat. This is the final actionpf Ji tferson County.' The SHB decided, without regard to the result ofPLA's motion;for consideration, that Jefferson County had not properly approved the SSDP foi. L ow Cove n and that the SSDP was not validly issued by the 'DOB as a .result The only ogical result is that the application must be returned to Jefferson County properly approve or deny the SSDP. This is exactly the result that the SlIB reached. Mr. De a e Silvis representation to the con1raIy mischaracterizes the facts. In short, the reason t the proposed amendment to the Development Platt is before the Jefferson Coun Board of County Commissioners (the~'BoCC, is clearly that , PLA and Trend West do n believe they are leplly on good ground to urge that a Trend 'West Resort is a USe cQUsi t with single family residential zoning either in 1995 or 2000. ~a~:509-453-0745 What PLA and Trend West propose is that zoning otherwise applicable to Ludlow Cove II under the Coznprehe2)si PlanJ MPR Code or Development Agreement can be modified by modifying the evelopment Agreement. That proposal conflicts with the procedures and purposes licable to modifications of zoning or law that protects it. It confliCts the notion ofves' as it protects those who purchased from Olympic , Resources or PLA. It cOntI cts with CC & R.s in favor of the PL VC thatai'e applicable to the development ofLwp.ow Cove II (the~PL VC CC & RS,l1. 'W'hether or not it improves economic conditions inithe ucUow Bay MPR, it is an illegal proposal that cannot be resurrooted by a legerd~' converting. quasi judicial review to a legislative~. 'Ibis is a classic case of rent ,~ . The importance of the matter to PLA and Ttmd West is vastly greater than the .: thereof on any sinile resident of the Ludlow Bay MFR.. The muted respODse of the idents tends to be overcome by the strident d,emlmds of the developer. What the HE' st do is filter the noise to determine the legal and factual positions of the parties and e true nature of their requests. A review of the statutorY au ority for development agreements makes it absolutely clear that a development arc: is entered to execute a policy set forth in the comprehensive plan. The e requirement applies to development regulauODS which regulate particular aspeCts 0 comprehensive plans.1J . This requires that development agreements be b.oth consist ' twith the comprehensive plan providing for them and the development regulations re ating them. A development agreement implements the policy of the comprehensive plan and the regulation imposed by the development regulation. The Devel" t Agreement is a development agreement,14 the MPR Code 11 See Exh1"bit B (Ba:- ightinple at DCD hu confirmed this as part ofrecord already). 12 RCW36.70A.130(1)(d),' 13 ROW 36.70B.170(1), 5eIltence. 14 Resolution No. 42-00, P' dings 4, S; I>eyelopmeut Agreement, Sec. 1.3.3.; MPR Code, Eighth Recital. 7 i I: . POWERS & THERRIEN P. 10 RECEI\TED JUL 2 4 2006 is a development regu18tio 1, and the Comprehensive Piau is a comprehensive pYif f f R S ON CO UN TV 0 CO within the meaningofthes statutes. ~aX:509-453-0745 Jul 2220.11:37 , The requirem.entthat tJ)e velopment Regulation be consistent both with the Comprehensive Plan, aiI.d e MPR Code ai1d that the MPR Code be consistent with the , Comprehensive Plan is r ' gnized in the language of the Development Agreement and , MPR Code. 16 The '. ' tis not that the Comprehensive Plan and MPR Code be made consistent with the' elopment Agreement as modified. It is clear that the reverse is the case. 'TIre D elopment A~ement must remain consistent with the Comprehensive pIaU aD.d MPR Code. Such construction is further consistent with the statutory requirements to ' , the prior paragraph 'and the recitals of the Development Agreement and MPR Code refer. , Under the amendment to th Development Agreement sought by PLA and Trend West, Trend West time share 'use s classified 'as a residential use pemrltted on the Lue:Uow Cove n Plat and the maximum 'ty'allowed on the Ludlow Cove II Plat is modified to nine,I7 It is absolutelyplethat the propOsed amendme.o.t to the Development Agreement conflicts both e.MPR Code arid the ComprehensiVe Plan. The Comprehensive Plan zdD.ed Ludlow Cove II single family detached with a Diaximum , density of four residences p acre. The MPR COde, consistent with the Comprehensive 'Plan~ zones Ludlow Cove single family detached with a maximum density of four residences per acre. Neith ,permit multif'atiilly residential as a conditional use. Accordingly, the proposed endment must fail because it violates the use adopted by the Comprehensive Piau an regulated under the MPR Code.!1 The Development 15 MPR. Code, Third ~ , states with respeet to the Port Ludlow MPR as descrJ.'bed in the CompreheDllive PlaD: ~ i: County is requin:d to ,adopt development mgulatiODs that are consiste:D.twith the provisiofts of e Comprehensive Plan". ,', . 1GDevelopmentAgr$neu Sec. 1.3.9-1.3.l1,I.3.13j MPRCode, Third audBighthR.ecital. 17 The Proposed ,. takes the position that'the tnaximum density is currentlY sixteen, the maxilnum deDllity pennittCd mul . residenlial in 1995, wheD t1ic application for the subject plat WIll initially submitted. That CODcl: is IIOt presently wmanted. AIm Galt ,..."."d'X! to lIB Bertdg to , decide how Ludlow Cove n is zoned. There aro BeVenll possibilities. UDder the 1995 ruGA. the property is zoned lDUltitiunily res' '. Under HE Berteig's 2002 decision, the property is treated as zoned single family residential wi mUltifamily resideutiill as a permitted conditional Wle, again bNed on vesting ofbwd Wle in 1995. U the COtt:IpIehensive Pl.aJJ. the Developw.ent Agrem:neut. and the MPR Code. the, property ill' zoned siDgl family detached. The maximum permitted density is four resiclcncos per acre. Multifanlily residcmtial is t a conditio;ual Wle. See MPR. Code, Sec. 3.102. 3.103, Schedule 1 to Development Agreement; Port ow MPR. Land Use Map(recordablt: va-sian of August 28, 1998) Comprehensive P1aiI map, ~'bi 3 to Development Agreeme:at. Developmeut AgreenleDt Sec~ 4.7 incOIporates exhibits and schedu1 into the DevelOpment Agreement by reference as CODtmctpm'VisiODl. ' The dcv~lOper agreed'to the' . provided by the MPR. Code. Seventh Reoital to MPR COde. Accordinglyit ill poBllibl" to view: allowed denJity as either .fbur Of sixteen depending upon the Jesults ofPLA's and Trend West's LUP Petition of ARB Galt's decision. Uatil there is a disposition of the LUPA Petition, as Mr. De Sa' e Sil a admitted at the BoCC workshop, HE Bcrteig's opinion on remand as to ZO!IiI1g cannot inue. This fo be{lBWle the LUPA Petition covers .u of AIm Galt's decision, including the remand. Thus. it is ot accurate to state that the !lmeudmcnt reduces permitted dell&ity on Ludlow Cove n from s:ixteeuto . . If adopted. it may have the effect of increasin.g same from four to nine. 18 Development Agreemea~ 4.6 pttlVides for a1nendment. It requim written Qonsent of the . CowlIy lIDllPupe. The CowlIy I . ......1IIlIIl_ die............ br'- ot-" , 8 t ., I ' l .i~' '.' ::: ...... i; ;. j' POWERS & THERRIEN ~a~:509-453-0745 Jul 22 200.11:37 P.11 RECEI\TEJD JUL 2 4 2006 Agreements terms, either itially adopted or subsequently adopted by 1lUl~~ N CO UNTY 0 CO 'have an effect ofconfli. the Comprehensive Plan and MPR Code. ' The authority upon which, I believe, PLA and Trend West rely for the proposition that a modification of land use y be affected through a modification of the Development , Agreement is JCC 18.40. 0(5).19 While the language read without the parenthetical might suggest that a ~l t agreement provision permitting land use trumps a development regu1ati~ in luded in the unified development code, that reading fails. First, the mconsistencY. ' 'tted'is betWeen the development agreement and the unified development code not b een the development agreement and the Comprehensive Plan. ' Second, the basis for p tting inconsistency between the development agreement and the unified development c as to master plamied resorts is that a'mwter planned resort requires a site-speci:ficCo prehensive Plan amendn:1Cm:f'. This is exactly the point For a development agree:tnClit to e amended so as to conftict with a Comprehensive Plan, the 'modification must be a; ved as'~'site-specific' Comprehensive Plan amP.t\dment:' , Because language ofari . e Catlnot be ignor~ the reading of ICe 18.40.860(5) Proposed by PLA and , W~ must be rejected. , The process by which PLA and Trend West seek to effect'\! 'site specific' Comprehensive Plan amendment'is by , ding the development agreement. The protocol applicable to such an amendment is Iimi d to notice to the coinmunity aud a public ~aring before the 'HaCC. The protocol tq the Comprehensive Plan is more formal. Amendments and updates to a camp , sive plan may by statute be considered no more frequently than annually.21 In Jeffers ,County, the deadline is generally March 1 It for submission of proposed amendments. I understand it was extended to April 1 lit in 2006. Further~ proposed amendments to Comprehensive Plan must be submitted to the State for , review at least sixty (60) cia s prior to their proposal to the CouIlty.PLA and Trend West after notice to the public and' a p lie heiring. Nowhere is there any sUQCBtion that the lUl'Il!I'Idinent may conflict the Comprehensive Plan MPR Code both of which, 81 noted above, are reoogaized u statu.toriI.y ~. 19 It IItates: Conliistency with Unified Development Code. The dsvelopment standards IIDd conditions set forth ill a de'velopment shan be consistft,t with applicable development regulation5 set forth iD. the Uni:tied DoV Code, ~cept in the case of a master plsnned resort (which n:quires a site-s.pecifie C , live Plan lI1Denc:lment), where adopted standards may be m.odified by the clevel standards contained in the agrc:emem, so long as all proj~ impacts have been adequately . ted""Ord. 2..()2 Sec. 1; Om. 7-01 See. 2 (Exh. B); Ord.'l1.oo See. 8,1 ~(2). ' 20 . Ci 131 Wn.App. 339, 346, 127 P.3d 755 (2006); 98 Wn.2d 443,448,656 P.2d 1035 (1982); Premera vJ . 131 P.3d930, 937. 938 (2006); King H . 142 Wn.2d 543, 560, 14 P.3d 133 " ISO Wn.2d 674, 686, m 80 P.3d 598 (2003) 21 RCW 36.70A.130(2)(a). 9 ~ .1.. .' ,~ ,':. ",,', . I~' . . ','." POWERS & THERRIEN .~a~:509-453-0745 Jul 22 20.11:38 P.12 ,,' · · RECI~I'TEID JUL 2 4 2006 , failed to file for an ent to the Comprehensive Plan or even to notifY adt9~~ N CO UN 1Y 0 CO condition for such filing. ther, _ wait another year, they filed this proposed amendmont to the D~ ent Agreement. The public purpose seived by the limitation on consideration of' :ts to a comprehensive plan is clearly the need to encourage public participation in the ess.22 Permitting amendments to proceed piecemeal . throughoUt the year mikes it virtually impossible for potentially interested parties to obtain effective nOtice and keep themselves informed. of land use changes contemplated by Jefferson Comrty or a eloper. The Legislature was sensitive to the need to , consolidate and provid,C , te notice and review opportunities to the public. That policy would be defeated b a protocol limited to notice and a hearing before the DaCC as provided for ~en to the Development Agreement. It is questionable whether LA has followed the requirements of the Development Agreement in seeking an t of its terms. The Development Agreement provides: '1he Agreement hall 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 theiha an interest)~' .several issues arise. First, who must sign the consent. Pope is not the 0 of property within the Port Ludlow MFR. Its rights haye been sold or assigned. Jlo ever, its assignees in title include, not only PLA but all persons who have, property in the Port Ludlow MPIt, atICast after May, 2000. The Uwguage in the Paren 'al requires not signature not only of the successor, apparently the successOr th e contraCt, but also the successOr in title, a concept that includes all subsequent en, and assigns, a concept that could include both assigns in contract and title. The 'usign~t clearly includes persons who acquire by'lale and assignmen.t portions of the ope Property. . .who will own, develop and/or occupy portions of the Pope PrOpe and buildings thereon..23 This language makes clear reference to the Pope Prop' and portions thereof. The Pope Property is the 1,200, acres . made subject to the Port L' owMPR under the Development Agreement 24 'IbWl, to the extent any such person ~ interest in''l:he propertfsuch peismis written conSent is , required. The second Ql1cs on is the identity Ofthe propertY'. Here, the underlying COIl.cept Pope Property mel s the 1,200 acres made subject to the agreement. When the Development Agreemelit entered and recorded, the developer recorded a set of CC & R.s that vest arcbitectur~ an legal review authority over all of the Pope Property as a condition to the develo t ofp1at~ subdivisions, and other land use requiring public permits in the Port Ludlow R. 2S The protections embodied in the PL VCS CC &; R:s u RCW 36.70A.140. 2$ Development Agre~ Sec. 4.2.2; first sentence. 24 Development A.gre : Sec. 2.1 and EXhibit 1. ,25 Port Ludlow Mister Resort Muter Dec1am1ion of Co\rewmts, ConditioDl, and Restrictions dated August 4; 2000 and reconied under Jefferson County Auditor's File Number 435975 on Augwt 4, 2000, Exlubit B hcri:to arbara Nightingale at DCD has confirmed this as part of record. already), Section 2, 5; and Bxhibi C hereto (Barbara NightiDgal.e at DCD has conflnned this all part of record already). SpecifiClllly, .bit C provides: All development within it MPR zcmu f8 subject to Jejfelwon County regulation., /lfeW", the Zoning OrdiJia7ICe (the ~ Cade). A description of the permitted laud uses. densities and design guideliDes for each MFR care tnDbodicd in Jeffeuon County development rcsutaliom for the Port Ludlow Master,Pl cd Resort, Ordinance No. 08-1004-00. 10 , I i- f t J , ' :', ;";"::',..",,: . POWERS & THERRIEN ~a~:509-453-0745 Jul 22200.11:38 P.13 · n.'.~) i't.? {''lIE f\ T1F"'~j 11'~ '_/J .~ JUL 2 4 2006 are ~ted for the ~efit , d protection of all of the Pope Property. A cl1an~fWlSO N CO UNTY 0 CO development standards ap Jicable to any of the Pope Property tl'om that governing at the time oftb.e Development grecment affects all of the Pope Property and not just the parcel subject to the propo change. This is the basis for subjecting each division in the Port Ludlow MPRto . ew by the PL VC acting as an ARC as a conditicm to the solicitation of govemmen ' permits allowing for the proposed use. The CC & Rs are a ' property right ,include4 in e Pope Property that is held through the PL VC by aU owners th~. ' Based upon this in~t' duty~ the PL VC has submitted a comment on the proposed amendment calling to ~ue . on the effect thereof on land use in the Port Ludlow MPR and Jefferson County.2 t letter cautions the BoCC not to adopt a land use change by operation of a modi1icati', to the Development Agreement It is clear that the letter , advises Jefferson County t at not all successors, successors in title, or assigns to the Pope Property that have an interest in Ludlow Cove n have signed a written approval of the proposed amendment. Whether the action of the VC is seen as unique to it W1der the PL VC CC & Rs or as representative of the resid ts on the Pope Property, theeffec:t of the action is to raise the issue whether PLA and d West have the written consent ofall successors, su~ors in title or assigns as require by the Development Agreement Certainly, under the definition contained in the evelopment Agreement, PLA is not the only successor, successor in title, or asiign ,{Pope. How then is the Boec permitted to consider the PLA proposal until it piuvi s the requisite executed consents of all of the petSODS who fall within the class of sue ' ssors~ successors in title, and assigns? The auSW'er is clear, the application is defective' ecause it does not meet the four comers of the requirements detached. S~bon lA of the PLVC CC &: Rs provides: 'demiaJ. zones withiu the MPR: Single Family, Singl. Family Tracts '11 development will be in enclaves or olusters to avoid spmwl; ; r:/eaigtlld to mamtain the ating character, mmim;7i,,! impervious $urfaces; and co1Uiectld to other QNQ8 wilbtn the MPR by there are three separate aDd Multi-Family. Res' bu1fered from p~ roadways. pa'Ving ~ 0 pathways and traiJI, A review of the substantive sa! reveals that the italicized. requi:retnen.ts are not and cattlJ01; be met. In the pruposal, Trend West haS its tnils. While it may permit 1Dil access to ~ PL VC Uail, through the property, it is not located where i should be, along Ludlow Bay. Moreover, Trend West refused the , ,clema;nd of the PL VC to subjeot project to common CC & R requirements applicab1egenerally that assure the maintenance of e'" character and eonsisteucy in design and OODsUuotion. Because the proposed dcwlopment is . priVIt z:esort that ptOpO$Iili to use the facilities of a public resort, the master planned resort, it is, in effect, imb ded in the Port Ludlow MPR without being integrated therein. This violates RCW 36. 70A.3~that . s that the entire master planned resott be developed as an integrated whole. It is cleat that Pope RH es and PLA intended that Ludlow Cove II be SQb.ieot to the ZODiDg and land use .requireme:a.ts contained' the Comprehensive Plan and the MPR Code, the appli.oable development n:gulation. , 2li See letter from PL VC to oft'erson County of July 17, 2006. Exhibit D hen:to (Barbara NightirJg&le It DCD has con5.t,med this IS p ofreconi. aJready). 11 'j:" r ',1.':.:: POWERS & THERRIEN 20,11:391F ~.rEIVED JUL 2 4 2006 to amend the Developm'-,t der' 27 JHftR~UN COUNTY OeD -- ent un Its own terms. This is not a question or enforcing cc & RB; it is a condition to the approval of an amendment to the Development A.greelneut th is binding upon Jefferson County and PLA as well as all other persons who have be me parties thereto as successors, successors in title, and assigns. ~aX:509-453-0745 J u I 22 As a legal proposition, Jeffl on County carmot participate in the proposed amendment to the Development It cont1icts the requirements of the PL VC CC & R. that the subject property be dev~op in accordance with the MPR Code as single family detached resideiwes.28 E~ resident of the Port Ludlow:MPR is a beneficiary of the PL VC CC & Rs. The PL V acts for such residents to enforce architectural control and , require conformity with law of each new plat to be developed.29 For this purpose, LUdlow Cove II is identi1i ' as part of the Port Ludlow MPR and is subject to the PL VC CC &: Rs. The amendment fthe Development Agreement proposed by PLA and Trend West conflicts the PI. vc C ,& Rs directly. Because the CC & Rs are 811 interest in property, Jetferson CountY annot approve an action in direct con:t1ict with the PL VC CC & Rs without compensation and then o:aly for a public pmpose,30 The rights of the beneficiaries under the PL V CC &:: Rs are real property rights that are accorded protected status under the Management Act and under the Washington Constitution. Here, Ie County has made DO offer of compensation, has not proceeded to condcmm. the' 1, lI3.ld offers no public purpose. In the aftermath ofKelo v. New London~Jl it is clear t assistance to the developer or increased tax base is not a sufficient basis to concl~ public purpose test has been. met. The SSDP Application . be rejected based on the view expressed by Mr. Jeffery Stewart.32 In addition to z' Mr. Stewart questioned whether the trail system as proposed met the req . t of the Program in that it did not access Ludlow Bay. ,Currently the plan has 119t same. Mr. Stewart's letter identified other issues involving erosion and land' e that have not been fully addressed. Mr. Stewart identiflCS a National Pollution Dischar e Elimination System (NPDES) Permit that apparently had and to my knowledge his D been applied for or granted.33 Mr. Stewart raises issues SUlTOunding the increased in ty of use associated. with transient housing compared to , the use that would have b permitted if Ludlow Cove n were developed as detached single family housing as: zo under the MPR Code. Mr. Berteigs i:DteIpretation of 21 Moreover, the l~e Development Agreement S@\;. 4.13, deDyiDg third party ben.nciary status makes the same "successors successors in title, and assigns;; a party of the ultimate assignot tbeNof. Not only is, the CODSeDt oftheresi tli who hold title from Pope Resources or PLA ~ but they ue parties to the ver.y agreement that LA seeks to modify without 1heir gcmsem. Their party status confets direct contract privity between residents and ]cft'OlSon County. PLA is 110 more than another assign when viewed under the 18DgWlge the Development Agreement relative to "patty" status. 28 See footnote 2S,supl'a. ' Zg See footnote 25, supta. 30 V' . ries v. 'Iro 155 Wn.2d 112,128,129,118 P.3d322 (2005) 31 U.S. Supreme Court 200 32 Log Item 41. 33 The IARP AapplicatIon section 12 denies the need for this permit. There is a ow11ict between thil position and the position by Mr. Stewart. 12 ./ ,.r ~ " ( POWERS & THERRIEN 20' 11: 39 P.15 .. .. ... RECEr\71f~D ' JUL 2 4 2006 residential to ~ude t , West Resort use34 and chanaing ~tions in the I nHRSO N CO UNTY 0 en Development Agreement es not addtess the substance of this matter. It que*lddt whethor the type of use as ociatec1 with a Trend West Resort should be permitted on an environmentally sensiii,ve , to a salmon bearing creek. To evaluate the SSDP appUcation,that is ~of e consolidated permit application, these issues at minimum. should be addressed m' t of the substance of Mr. StewarCs letter and Mr. Galts decisioti. . ~aX:509-453-0745 J u I 22 , As I understand it, two ma s have been submitted together as a consolidated pennit application under LUPO, e proposed amendment and a substantial shoreline development application. e master permit application references only building permits and the SSDP. It also COD' a JARPA application that is to be :tiled with the Washington Departmeut 0 Fish and Wildlife. That pennit application has not been filed. It is a permit required ~ ha a complete application and as a condition to the acceptance of the SSDP; As DOted, . Stewart takes the position that an NPDES Permit is required. This remains unresolved. so,' the letter to reviewer to which the master permit application is attached a . ars to take the positiOn that the project will be prospectively reviewed for purposes of SSDP and JARP A under the Program 8:l1d the 1994 Interim Critical Area Ordinance. I is unclear how evalUation of the project can proceed after ,approval since the results 0 the evaluation could change the project. The master pemrlt , ,application contain maps appear to be from or incozporate the substantial development permit site p the substantial development permit stormwater ' management plan, the Subs t1ai developmC1;1t permit water and sewer pIan, th~ substantial development p 't building elevations, and the substantial development pennit lat1dscape plan. :Wh t is not clear is whetJter all or any of'these plaaCOt1~tutes a binding site plan or,likC t that when reCorded will bi;ncl the.:proj~~ for purposes ofland use other than ~ ts of the S$DP. What is clear is that all ofthe'latid use consents and permits thin the SSDP are not included In the consolidated permit application. 35 , M Log Item 144 35 The DlIlIter perntit ~pp . atiOll. md the lARP A application as well as the DOtice to the public teflill:' to the proposed use as a time . This deiorlption together with a defmition is ilwoIporated in the ' proposed amendment itselt .'l11e blem is that the use that Mr. Helm for Trend West described and that Mr. Galt found conflict; this:. .tio:a.. A time share must vest an iuterest, eitha- real 01' personal pt'OpI:l'tyl in the right to use the uait. See Secti.om lee) and (d). The latter provides tbst a timeshare right "taeaDI a right'to oocupy a , . or 8Dy of several units during throe 01' nwre separate time periods over a period of at least three yeaJis", dc;initton ill ~ fl:om RCW 64.36.010(11). The problenL is that pmclwers of credits thmugIt' West do not have the right 10 use any specific unit at any specific time. They have the rights to exchinge credits andlor cash for the use of wits in reso:rts under ~t with Trend West. There arc admitt', mere than 6,000 units in which more thm 250,000 members have the rig:htl to exchmge credits at Cash r units. This is not the Same as having the right to use one or motlil wit for some specitic time during a year period. I further believe the de.finitilJD ccmfl.icts the definition of time Iharc contained iD thc 've Plan See Comprehensive.Plan,p. 0.16. Here, thepersoDl who have the right of occasioaal res' ,.at use t)'pica11y share in the operating expenditures, J:e!D~ and upkeep. There is no relati.onsbip ~en usesS1DeDts against Trmd West memben lIDd the operatiD,g expenditures, rent and upkeeP of y specific units. It is c1ellr IS Mr. Galt found that Trezu:l West operates a , hotel ~ ~s pl'ep8id i:rCdi: and Cllib fur, the tight 10 uso a room or mite. lust because the right is . ~erally restricted to a large~pool of olub members'doea DOt Inake it less of a hotel. Ju DOted in tho architeas corrcspondence with D D Oll. the project,. the use is that of I hotel. For these reasons, IV. itthe 13 f ~ ' POWERS & THERRIEN ~aX:509-453-0745 Jul 22200....11:40 · RECEK\'ED P. 16 JUL 2 4 2006 , JHfERSON COUNTY OeD, , How then can an SSDP iss against this consolidated application? Is one to read into the application or the propo ed amendment, the JARP A permit and its conditions, the NPDES and its conditions the various si~ plans identified to the SSDP as the binding site plan. An SSDP is the last permit to issue.36 It is based on prior or contemporaneous appli,' . that cover all of the land use applications necessan' to develop the use. Here, it is lear the consolidatcc;l permit application does not accomplish that result That is 'in the app1ications;that it covers a:ad in the letter to reviewer. Neither the fiwe (the SSDP AWlica#01l nor the face, of the proposed amendment to the Devel '," em Agreement contain the information necessary to permit , Jeft'mon County to eva,lua the impact of the project required in cODJ1ecUo.n with the approval of an SSDP at, ass i~ with the Consolidated Permit Application. 37 The integration' of this permit do s not obtain. 38 I finally wish to include: by =nce prior COIDII1_ I have ~ on.-this 'p1'Qject to Jefferson County. I WiSb: to . e again the oomUj.ent of the ,Jefl'eillon County Sherif[ He concluded that he had utade 'uate staff to handle the Port LudlOW Wit 39 He, Diadethe same, comment to both t w Cove.II and Olyuipic TertacelI. M:r: Berteigs ~OnClusion ' 'I", . , that the issue is incremental does not address the,issue it all. A review of the kind of use proposed at Trend Wesi,the transience and lack ~fassociation of its: guests with the community, and the rec~' ry of crime and ~ ins suggest that foublicservices are needed and must be praY! contemporaneous With the developinent. . , "amendm9bt w~ apProved aim' , held otherwise vati&\ it would stW.not save this PW,jeot :which would remainouts:ide the ambitof the 'tl9l1of''timeshare''. '.' "', " , ' , 3ll Jeffenon County ~tcr Shore&e Program, Sec. 'li.40stlUe8 ";A sholc1mepermtt i$o~ the last 8~ta1 approVal ~orcO!l$ln1ction or issuance of a buildmg pennit. ,If a prQpolal'~lv\ilS ' other govemme.u.ta1 a~; as a :retoAe or IUbdivilioi1 approval. theseotlier issues shaJ.i bC'mo1Vecl , 'ortofiDalactiononas~pcnnitapplication." :' ' , " , rr LUPO See. 1. It is ,'! blc that the Pl'Oposal bm even be considered Ii compi$e aPPlll,'laUcm for pUIpOlCl' of LUPO c '.' the parts that have not b~ integrated thereiD. I do not sUggest that these parts have not been: oth!=rWi ocmsidered Rather. it i~ my pocition that Jefferson Cmmty tUmed them ' down. Tho proposed ohauge:to th Development Asr=mmt does not resu:rrect them III a 1ep matter. It does not place their contents })e either the hearing mmi:net or the BoCC in: connection with their review of proposed pennits and . legislation that putpOrtS to allow the project on the property. It does not allow the kind ofreView lated by LUPO 01' the Program. See LuPO, Seotious 10. 11. " 38 This is admitted in the to zeviewcr that referoncell further review under the Progmm and the lCAO. Further question is al~o then:oD by the divergenoe llet\yeeD. Mr. SteWart's J.ettei., Log Item '41, IIDd the proposal that the ori.@W tm:fReport accompanying the MONS that cOnfliCts or di$i- Mr. Stewmt'1I1etter or its conClusions. It seems questionable that such auMDNS ciou1d. mwissue in light ,of . Mr. Galt's decision and Mr. $ 'sleUer, particu1arlyin light of the lack of any compHlJIlOt: withJABPA which may very well impOse; conditions that should be considered in the consolidated. process. 39 Log Item 23 : 40 RJ:,W 37.70A.362; fee 1 .lS.126(1)(h) aDd (i) set forth requirements for co:ncuneDOy and mregratioD in ,~ developmeljt of lie facilities and $emoes. While these do not per se apply to the Port , Ludlow MPR because as it was I ' ' cd. before the adoptio;u of the UDC, they arc consistent with the desorip1im1 in the ComprehenSiVe Ian for new maSter plattned re&ortI. How Port Ludlow's developtll.$Qt plan incOIpora1l:d in the MPR and Development AgNemeD.t cannot be conliderod a new master planned resOrt, particularly c ' . the refeieoce to the expansion of the 1's1na1l ~; iD Section 1.3.12 of the DcvclOpmentAgre s1miDs credulity. Were the ex:Isting.:reSOft adequate to meet the ,definition of master planned. , t1ul Development Agreement and the MPR. Code would have been 14 ,f .,,~ POWERS & THERRIEN ~ax:509-453-0745 Jul 22 200~11:40 P.17 . ,--" n. -. .---. ,,"-- .... --- "-W.-' ";-.... ... "REf' Ef\TIF If',, L, LJ/ JUl 24 2D06 This also reflects the req' ent for master pianned resorts both statutory and in JEFF f R SON CD UNTY D CO Jefferson County's own inance. It is not addressed. Equally important is the lack. of attention to the water 8nd ewer system. The only assurance provided to DeD is that the project has sufficient. ME coverage and the private lltility, owned by the developer, will hook up the project,41 But is this enough. Can anyone say the water system provides adequate pressure when b p pumps had to be turned on when the fire department , fought the Admiralty Co . 'um Plat fire a year and a half ago. It is clear that the normal pressure in thesys was not sufficient to supply water to the tire department to 'fight that fire. What WD have happened if no one would. have been available to tum on the back up pumps? Whi1 I do not suggest that th~ systems are necessarily deficient, I ' , do suggest that there is" equate information to show that they are sufficient and that this information should be afore the Hearing Examiner snd BoCC before it evaluates an amendment to the Develop ent Agreement and associated permit application ~orti.ng to allow the project and the changes in intensity of use that are associated with it. 2 The proposed amendmmt t the Deve1opmentAgreem.e.nt should he rejected. It does not , have the requisite appi'Qval fthe owners. Bven ifit did have same~ it does not meet the requirements for amendins U$e approved by the Comprehensive Plan. The proposal raises serious questions of' . CI!ating the rights of the realll;n;nglandowners in the Port Ludlow MPR in connecti ,with its breach of the terms of the PL VC CC &: Ri. Such a violation would constitute taking and would further be subject to the requirement that a public purpose be served. I have significant doubts that any public service could be served by a Trend West R ort imbedded in a master planned resort that is based on the notion of a public resort. e issues of takin& public purpose, and compensation are nowhere addressed. The p posIJ. continues to violate the conditions of the SSDP. The proposal does not integrate information substantively required for its evaluation either as an application for apPl'ov of an SSIDP or as a proposed legislative action to provide spot zoning as~istance ~ th developer. ~4/~::a.g Leslie A. Powers 44 Heron Road Port Ludlow, W A 98365 Ric;k Rozzell has joined in above conunents. "'~~CII"""""'III-IIIl!IOfJ1tlI . UJ1Decessll1')'. Compare RCW: 36.7 .360 an 362 and the treatment of master plaaed resorts in the Comprehensive Plan at LNG 25, 41 Mt, Scalf confhmed this to the 42 The entire nature of this 15 . . .....----.--- . ...' t , ~. , ' " . ....' :.~" . ,:,- f . .i: '. ,', " POWERS & THERRIEN 4liaX:509-453-0745 J u I ,22. 20 O. 11 ~ 41 P. 18 POlllllioll Co,..t~II'lear\l'lR5 Ilo8td . Shbre~llelllif!Dtln~ hrd fO/(llt Pr~~Ij(;~,APPll>lI~ lI~d ~d~ultc Appeals Board tfr~j'onmQl'na' and l..1nd Use Hoarlnllll Board Telepnone1l3tiO) 0459.6321 . ~o\l(: \3IlO) 438.1699 lmalh ehotleka.wa.lllW ' weQslte; wIVW.'"C1.Wil.p't' STATE: Of WASHINGTON ENViR, NMENTAL HEARINGS OFFICE Z4 ~ 6th Ave. ~ BIfIB,. " Rowe g;Jt Bm: 4lI9()3, I..1ctP,... WA 98504.098.1 May 17; 2006 RecelVtr') MAY J , 2006 'IOARI'~K.P.S. BY FAX AND MAIL Leslie A. Powers 3502 1"ieton Drive Yakima WA 98902 David W. Alvarw ChiefCiviJ De~ty ProliClouting Attorney Jefforson County . RJEC E I\TJE lD PO Box 1220 -d " Port Townsend W A 98368 Rick Rozzen 41 Windrose Drive Port Ludlow W A 98365 Donald E. Maroy CAl~CROSS &. HEMPLBMANN 524: ,Sooond Avenue Suite 500 Seattle W A . 981 04-2323 (for 'Trtmdwest R.osorts Inc.) JUL 2 4 2006 JHHRSON COUNTY DeD Mater;) De Sa B SUva DAVIS WRIGHT TREMAINE LLP 260() CentUty Square 'IS01 Fourth Avenue SUttle WA 98101.1688 (For Port Ludlow A:ssoQiates lLC) , , RE: SHB NO. 05..029 LESLlE APOWER8 & JU ROZZELL 'V. JEll'Il'ERSON COUNTY, 1'.R.ENDWEST RESORT~ C. &: PORT LUDLOW ASSOCIATES LLC Dear Parties: Enclosed is An Order on: This is a FINAL ORDER. for urpalll of appeal to Superior Court within 30 days, pursuant W WAC4n.08-S70and S7S~ and llC 34.05.542(2) and (4). The following notice is Sivell per RCW 34.05.461 (3): Any party may file a petition for roconsideration within 10 days and e it on the other partiClS. Tbe term "fileR means receipt Sincerely yours, tJ~')l4d WUliam H. Lynch, Presiding WHL(jglS 05..029 Co: Don Bales - Shorelandll. Ec.x>l gy Jefferson County Dcpt of.Co munity Development , , :Ene., CElitTIPICA1'ION On lbis~, r tarW!lldcd . tNe Md a,*,BIi: clIpy ttr 1he do\lUIIKlIi'5 ItJ whil:ll this =rtiIle. is ahd via vnitod illiteS Posui Semcc! lIoaae prepaid to lbe tUOnlll)'s oIfM01'd herein. I cc:nily ~dllr' ~ olperJIlrY lIad1r ~ laws oflbe Sellltl ofW, . I Is 111IO IIld GD~. DA'fSD lIl~q. WA. . o t . :'.' ,~ {-. r, , . . ' , POWERS & THERRIEN Fax:509-453-0745 ...'...""...'.e . , I, , J u I 22 200.1: 41 P. 19 BEFORE THE SHORELINES HEARINGS BOARD STATE OF W ASHIN'GTON RlECElT\\ TX} I,' l1\y~D JUL 2 4 20D6 JEFFERSON COUNTY DCD 2, LESLIE A. POWERS and, 3 RICK ROZZELL. 4 5 6 Peti tioners, SHB 05-029 ORDER ON MOTIONS v. 7 8 9 JEFFERSON COUNTY; TR.E DWEST RESORTS~ INC.; and PORT L LOW ASSOCIATES~ LLC. Re dents. rs and Rick R01alJ filed an appeal with the Shorelines 10 Hearings Board (Board) chal,len' Jefferson County's issuance of a Shoreline Substantial ,11 Development Permit (SDPOS ' 02) witb conditions for lhedeveloPment of a 120~unit time.. 12 share mUlti..t'Bmilyresidential de elopment on approximately 14.66 acres within the Port Ludlow 13 14 , Master Planned Resort. 15 The Board was comprise ofWilUam H. Lynch, pr~iding, Kathleen D. Mixr Judy 16 Wilson, Kevin Ranker, and J'ildy arbour. No oral argument was held.' The Board deliberated 17 the motions based upon the rccor . Donald E. Marcy and Michael S. Brunet represent . 1 g Respondent Trendwest Resorts, J c. (Trendwest). ~o de Sa e SilVa represents Respondent 19 Port Ludlow Associates, LLC, (P ). David Alvarez represents Respondent Jefferson County. 20 Petitioner Leslie A. Powers rep nts himself and Petitioner Riok Rozzell. 21 SHB OS.029 ORDER ON MOTIONS, 1 # Page . t ! .. ~. I, POWERS & THERRIEN Fax:509-453-0745 ....'e... Jul 22200.11:41 P.20 Four different dispOsJti e motions were filed in this case. They are: 2 1) , Q . The Petitioner requests the Board to remand the SSDP back to the Co~y 0 the basis that it was no~ finally approved by the County. 'RECEIVED, JUL 24 2UnG JtntRS~K COli~\l D~U 3 Di!! i . Trendwest moves fbr dismissal of the entire case on 4 the basis that the shoreline app before the Board was filed too late because the SSDP was final '. when filed with Ecology. Tren ~st also contends the Board has no jurisdiction to decide the S issues raised in 1he appeal. , 6 3) 'aJ ' . Judgmllllt Jefferson County has asked the Boan:1 to dismiss ~ S #4, #5. #6t and #1. The County notes that another portion of 7 this proposed project is before' e superior court. It contends that tbe action an~ authority of the Appellant Hearing Examiner sh uld be brought in superior court under the Land Use Petition 8 Act (LUPA). 9 4) P A " , oti . smis PLA moves for dismissal of the entire cae on the basis that the appeal was filed too late. PLA also contends the Board has no 10 jurisdiction todeoide the issUes . sed in the appeal. ' 11 The Board hu reviewed d considered the pleadingst motion p~ and exhibits ' , 12 contained in the Board reco~. " eluding the following: 13 1. Petitioner"s P , 'uon for Review and Attachc;d Exhibitsj 14 2. Petitiornit s tiori for Summary Judgment; 3. Petitionerts emorandum of Facts and Law in Support of Mati on for 15 Sununary'Jud ent; 16 4. Declaration 0 Leslie A., Powers liIUd attaobmc:nts; 17 S. Supplemebial c!a.ration ofLes1ie A. Powers and attachments; 6. Respondent west's Response to Petitioners~ Motion for Summary 18 Judgment; 19 7. Respon~ Je on Countyls Memorandum a/Law in Opposition to 20 Petitioners' M tion for Summary 1udgment; , 8. Declaration of avid Alvatcz dated Febroary 16,2006, and attachment; 21 5MB 05-029 ORDER ON MOTIONS 2 'L } ~ :.. I.: I ' . . . ' ' POWERS & THERRIEN Fax:509-453-0745 e , Jul 22 200.1 :42 P. 21 r if"" .."....., RECEf\ iI" JUL 2 4 20G6 JEffERSON CUtiN n 0 cll 9. Respondent J . erson County's Memorandum of Law in Support of Its Partial Dispositive M tion; 2 3 4 10. Declaration 0 David Alvarez in SUpport ofRespondelU Jefferson County's PartialDij,pos ove Motion and attaclunent; 11. Decla.raticm 0 Al Scalf in Support of Respondent Jefferson County's Partial Dispositive M tion and attachments; 12. Respondent T west's Motion to Dismiss; 13. Declaration 0 Donald E. Matey, Respondent Trendwest Resorts. Inc. 's Motion to D' . a; 14. PLA~s MOtion to Dismiss and MemOrandum in Support ofDi.spositive Motions of' J '. on County and Trendwest; ,t 5. Petitioner's Re ly Brief to Respondents Jefferson County's Motion to Dismiss; Tre west's Motion to Diszniss; and P'LA's Memorandum of Law in Support ot lts artial Dispositive Motionj and esue A. ~ower$ and attachments. 5 6 7 8 9 10 11 record in this case ~d being fully advis~ the Board enters ',,12 13 Having fUlly consider~ the following ruling. 14 IS' 16 ' The site is located within man County on the north shore of Ludlow Cove at the west. ,17 end of Port Ludlow Bay. Th~ ,sit comprises 14.66 acres, which i:s located within'the Port 18 Ludlow Master Plarm.ed Rewrt. proposa1~ known as Ludlow Cove Division 2, would create 19 a 120..unit time-share mu]ti~fami residential development. StqfJ Report and Recommendation 20 to Jeffers()n COU1Jty Hearmg & lner and Mitigated Determination 61 Non..slgnific:ance 21 (MDNS), .Attachment to Pti:litt~nfi r Review. SHB' 05-029 ORDER ON MOTIONS 3 , '1., " i' , :' L .. ~: " " 1] , 17 , 18 19 20 21 POWERS & THERRIEN 4liaX:509-453-0745 J u I 22 200_": 4 2 P.22 1 RECEI\"JED JUL 2 4 2006 JEffERSON COUNTY O~O 2 Jefferson County and' City of Fort. Townsend jointly adopted a Shoreline Management Master Program (SMMP) in M h 1989. Declaration of Al Sca?r. Attachment J. The SMMP is currently applicable only to J fferson CO'Wlty because Port Townsend subsequently adopted its J 4 , , own SMMP. Declaration of J)' id Alvarez, p.31 ~ J 6. , S 6 7 g In January 1995, the pri r owner of the property, Pope ~esources, fiJed a preliminary plat application with Jefferson COUll for the single and. multi-family residential project known as Ludlow Cove. In 1998 Jeffet County adopted the Land Use Procedures Ordinance (LUPO), Ordinance #04-0828.98) to com ly with the state Land Use Petition Aot (chapter 36.70C RCW) 9 and the Regulatory Reform. Act cbapter 36.70BR.C"W). Declaration of A.I Scalf, p. 3, , 1 J; aee 10 II within the Port Ludlow Master Planned Resort. al.ro A.ttQChment 3, LUPO bj:; effix.1ive on September 28t 1998. DeclaraUcm of Ai Scalf; 12 " Attachment 4. LUFO wu never bmitted to the Department ofEoology (Ecology) for its 13 apProval for incorporation into c Jefferson COl.U1ty SMMP. eveloprnent agreement with Jefferson County on May 1, 2000; 14 for property owned by Pope Res 15 16 Decl(l7'tltlon of AJ SCQ/j; AltQchm 1ft S. Section :;.12.1 of the devolopment agreement provides that all development applic;:ation.s roposed by Pope for the Pope Property must be pursuant to Countyts LUFO. Se(.1ion 4.22 of the agreement states that the term of the agreement is 20 Y' rs from its effective date. PLA purchased Pope Res urces' interest in the Ludlow Cove site in 200 I. The County J:!earing Examiner approved an a; Heation pertaining to Ludlow Cove on August 2, 2002. SHB 05..029 , ORDER ON MOTIONS 4 , i ~ . !l. ; , ~ ' " k' POWERS & THERRIEN '4liaX:509~453-0745 Jul 22200_':42 P.23 R JE,., f~. If';; lil\ 'E' -'\D1" -" . ' ,,4\\,:LiLt \V 14,1 JUL 2 4 2DD6 , '. JEFFERSDN CDUNTY DCD filed a Master Land Use Application pursuant to LUPO to 2 develop Ludlow Cove. Division woo Der:/aration of Al Scalf.' Attachments 1 &- 2. 'rhe 3 ~pplication covered a -variance, nd~g site pla~ and the SSDP, and included a SEPA checklist. 4 Althoug;h PLA OYmS the prope ' I the proponent of the proposal is Trendwest. DeclQNlliDrl of Al 5 Seaif; p.2, 1 4. 6 d that the p~ for ~r.rype B" pennits under the LUPO rules 7 applied to the proposal. lei. p.. 4, 115. Under the Type B LUPO process, a Hearing Examiner , , '8 makos the initial decision; which bsequen1ly may be appealed to an :o\ppelISle Hearing 9 Examiner. Id p,Sj , 23; see also lOAn open record head~g held before a Hearing Examiner on A~gust 15, 2005. The 11 Hearing Exainineris decision'VIr~ issued on September'2. 2005. Declaration of Al Scolt 12 Attachments 6 &7. On the same ay, Jefferson County mailed a notice to interested parties~ 13 ine1uding the Petitioners. notifyin them of the Hearing Examiner' 8 de<:is.ion. The notioe states 14 "ApPeals of'this decision must be Bae in writing as outlined in the attacbed instn1etion sheet." lS , 16 states th=tan aggrieved party ofrecord may file an appeal , 17 to the Appellate Hearina Exarrii by September 16a 2005. The instruction sbeet also states that ,18 '!Instructions and requirements for processing an appeal of a Hearing Examiner Type B decision ] 9 are explained il11ne [LUP01.'; S 'on 15 ofLUPO sets forth the procedures for Type B 26 decisions before the Hearing Ex . er. Subsection CA. oftbis section authorizes a person to 21 "file a motion for reconsideration 'tb the rIearina Examiner within ten working Cays from the SHe 05..029 ORDER ON MOTIONS ' 5 I 1 ~ . r,' ,,~, . . POWERS &. T.HE.~.~.!.~~......" ..ax: 509-453-0745 J u I 22 200.11: 43 P.24 RECf1f~--- JUL 2 4 JHfE~SU~ CUtiN \, ULU 1, date the Hearing Examiner?s cision was filed. It fUrther provides that C$[i]f a timely and 2 appropriate rr:ques1 for reconsi eration is filedl the appeal ~riod shall begin from the date the 3 ' decision on the reconsideration 's issued. I. lhclaration of Al Scalf, Attachmenl 4, p. 13 of 19. 4 Consistent with these in ~tions :&om the County. Petitioner timely filed a motion fot 5 reoonsideration on September 1. , 2005. Mr. Lewis Hale also timely filed a motion for 6 reconsideration. Declaration (J Leslie A. Powers, p. 1. However, on September 13, 2005, 7 Jefferson County sent the SSDP as conditioned by the Hearing Examiner to EcoloS)' tbr filing. 8 ~claration of At SCQlj; Attach mrs 8 &- 9. The County staff believed the SSDP was final. 9 DeclQ1'Qttr,rn of Al Sca(t: p. 6, , 27. Bcology received the SSDP on September IS. 2005. 10 Declaration of David Alvarez, Fi brutlry 16, 2006, Attachment J. The Petjtionerinqwred on 1.1 September 1411I of the County a ut the del1d1ines. for filing appeals. Mr. Sca1fsent an e--mail 12 ' response indicating that the SSD was already filed with Et..ology~ and that an appeal with the 13 Shorelines He,arings Board must filed within 21 days after this filing. Mr. Powers asserts this 14 e.m~il response from the Coun~y along with other e-mails, was lost from his computer and no , , IS other notice was sent. Mr. Powe s did not imm.ediately seek another response ftom the County. 16 The Hearings Examiner denied motion for reconSideration on September 27, 2005. 17 Declaration of Leslie A. Powers, 18 The Petitioner filed an with the Appellate Hearing Examiner on October 12,2005, 19 as dirccte4 by LUPO and the Part B :procedures. On Ootobel' 14, 200S, the Appellate Hearing 20 Examiner issued a gujda~e letter at stated Iw believed he did not have jurisdiction to hear the 21 appeal of the HesringExarhbler's ecisiotl to approve the SSDP with conditions. Declaration of SHB 05-029 , ORDER ON MOTIONS 6 L c ~ ! :.' . ',' .... . .:::.....!:;.., .,.... POWERS & THERR I EN".,. .~,~: 5.09-453"':074:. Jul 22 200'" :43 P.25 RECEI,r}70 JUl 2 4 2005 JEFFERSON COUNTy urn 1 Ai Scalf. Attachment 10. The P, titioner mea a Motion for Reconsideration of this decision on 2 October 26, 200$. On October 1; 2005. the Appellate Hearing Examiner issued an order 3 ,denyinga motion to reconsider ~s October 141h letter. Dee/oratton 01 A.i Scalf; A.ttachment 11. 4 An appeal was filed with the Sh :relines Hearings Board on November 3,2005. 5 6 ANALYSIS 7 Summary judgment is de igned to do away with unnece.,sm'Y trials when there is no 8 genuine issue of material fact. lante v. Stare. 85 Wn.2d 154,531 P.2d 299 (1975). A 9 material fact is one upon which outcome ofthc litigation depends. Jacobsen v. State, 89 10 Wn.2d 104, 569 P .2d 1152 (197 . In a summary judgment proceedi.ng, the moving party has 11 the initial burden of showingth is no dispme as to any material fact. Hiatt v. Walker 12 Chevrolet. 120 Wn.2d 57, 66~ 83 P.2d 618 (1992). If the moving party has met its burden of ,13 ~ducinl factual evidence showi g it is entitled to judgment as a matter of law, the burden 14 ' shifts "to the nonmoving party to ot forth facts sbowing there is a genuine issue of material 15 fact." Hash v. Children's Orthop ic Hosp., 110 Wn.2d 912, 915, 757 P.2d 507 (1988). In gment. the Court must consider aU of the mat~riaJ evidence 16 17 and all inferences therefrom in 2,' anner mQst favorable to the non-moving party and, when ~ I8~nsj~, irreasonable persons 'glrt reach different conclusions, the motion should be '19 denied. Hash at 915; Wood v. Sea tie, 57 Wn.2d 469,358 P.2d 140 (960). to , The legal issues in this c follows: , as contained in the Second Pre--Hearing Ord,er, are as 21 SHB 05..029 ORDER ON MOTIONS 7 " ,I nt" '! "t:_',,' .... ", , , ',\.' " , , ' .".~ . .,,,.,",,-- The Board finds that the ounty erred by sending the SSDP to Eoology on September '13 t 200S. because it was notth~ fmal dec!sion of the County, At the time of the transmittal to Ecology. the motion and ~1 p oedures spelled out in the ordinance were still underway and POWERS & THERRIEN 1 1. ....a. x .:, ~,~9-453- 0 745 Jul 22 200_':43 RECEK,rJED 2 2, P.26 JUL 24 2005 JEfffRSON COUNTY OeD W ItS the ' ition for review filed by the Petitioners with the Shorelines Hearings Board filed in a timely manner? , DoeS the decision of Jefferson County to issue Shoreline SubStantial Develo ent Permit SDPOS..OOOQ2 (SSDP) with condmons to co~ applican ' Port Ludlow Associates and Trendweat for constnu::tion of a 120-:unit lti..famUy thneshare development at Ludlow Cove Division II comply ith the Jeff-erson County Shoreline Master Program, the applicabl provisions of the Washington Administrative Code. and chapter 90.5.8 RC " Should t petition be dismissed for failure to serve aU the parties in a timely m Mer? Does:the horelines Hearings Board have jurisdiction to hC$!' an appeal of the ~isi n by the e.ppeIlate hearing examiner for Jefferson County that 'he did 00 havejurisdictio.n to hear an appeal of the SSDP? Was the S DP submission final for filing when the Jeffmon County Deparlm t of Community Development (OCD) filed it with Ecology? Did peD omply with applicable Jaw, including the county;s shoreline master p gram's provision relating to notice when it submitted the SSDP to Ecolog ? Is it legall proper to issue additional SSDPs ~o the project proponent for othet PrOP . es it O\\'nS in the Port Ludlow Master Planned Resort iftbey are alleg to be in viola.tion ofSSDP 9}-017, tbe Shorelines Management Act. attd 'Shoreline Master Program in I,udlow Bay ViHage? available to the PetitionClS'., Beca se of this detennination, the Board does not addre8S other ]8 19 20 21 3 4- 5 3. 6 4. 7 8 9 5. 6. I Although not essenti~ to is decision, the Board does not agree with Petitioner's assertion tbat he was owed specit'i notice by the County that the SSDP had been sent to Ecology, RCW 90.58.140(4) requ res a local gQve.mment to :fOrward a oOPY of the decision in a SHB OS-029 ORDER ON MOTIONS 8 1'0 7. 11 12 13 I. 14 15 16 17 i~'$ues raised in this appeal,l " I T , '" ~ .' . ......:. i .. .... POWERS & THERR IE~.., .w.~.~.:,509-453-074.5 Jul 22 20e11:44 P.27 1 R[~('EI\TED JUL 2 4 2006 All 'f'1. 'Re' ....J_', t t th ,...t h uld b d' . A..I b .. . 1.JE~ftRSON CO UNTY 0 CO a ~e spou~n s sa: e e aPPr;;ill,ll!i 0 e !SmlSS;;ou.coause It IS untImely. l1Uea 2upan the date ,which the County lled the SSDP witb Ecology. Regarding timeliness oftbe .3 appeal. the Count)' argues that t Board. doe!> npt have the statutory authority to' review local 4 government d~isions rega:r<;ling e authority given to its hearing examiners. The County also 5 contends that the SMM!) control the appeals process at issue. The County reasons that LUPO 6 'did not amend the County SMM ' because Jefferson CQunty never asked EcO'logy to approve . 7 'LUPQ as animendment to tpe S ), Therefore, tbe County contends that SSMP Section B lS.25;o90 is the controllingtn"O'v sion~ which establishes a 30-day deadline from receipt ofthe 9 Mal order for filing shoreline pe mit appeals. Essentially, the County argues that it erroneously ] 0 directed the petitioner into ~, ng review and appellate pro('ies~ and was without authority to 11 do so, under its,SMMP. See Decl ration 01 Ai Sc:alf. A.ttachmeni 3, ,', 12 t.Aassen that the Shorelines Hearinp BoaId does not have " 13 autbori1y to cOnsider j\.lrlsdictioo decisions by the Appellate Hearina P..xammer. They also 14' contend that the SSMP trumPs ot er general code requirements. that the final decision by the local government is filed with , IS 16 Ecology. RCW 90.58.1 &D(1) ad , ssesserviee ofa petition for review after the petition 17 , 18' timely manner beach person ming a copy of the decision. The Petitioner was provided timely notice ()ffhc Hearing e 'net's decision. AlthOugh it is unfortunate that there was a 19 problem in retrieving lU1 e.mailre ponse from the County~ the County did not owe additional notice regarding the tHinS of~e S DP. Petitioner should have been aware that the SSDP was 20 likely to be filed with Ecology s . 1)' after tbe issuance of the decision.. The Board reached this same concluSion in Ferari v. Lew' County and Roh,rl Thompson. SHB No. 05-033 (Order 21', Dismissing Appeal) (May 1 O~200 ). SNB 05-029 " ORDER ON MO"noNS 9 . ' 1 I , 'I ',., . . ~ .: ",,',, POWERS & THERRIEN .~~" :,,509-453-0745 Jul 22 20_11:44 RECEI\7ED P.28 JUL 2.4 2DU6 JEFFERSON COUNTY Dca 1 pertaining to a final decision 0 a local government bas been filed. RCW 9O.SSJ 80(2) 2 authorizes the AttorneyGeper and Ecology to obtain review of any tinal decision of a looal . I~ . ,;, government atanting a pet$it~ r grantini or denying an application for a permit. With respect 4 to appeals of Iota I government cisioDSs thefram.ework for shorelines appeals restricts the S Board'sjunsdiCtion to only: fin decisions by local governments. 6 The Boa:td has ~lear:a onty to detennine whether the action taken by a locaJ '7 ' " government is ~"finar'l for :purpo s of appeal to tho Baud. In Morgan er al v. Clark coimty et 8 al.,SHB Nos. 05.008 &; O~OO9 ' Order on Petitioners' Jurisdictional Motians)(August 1. 2005). ' . 9 the Board was faced With whe Clark County had made a final decision on a SSDP and a , , 10' conditional u:s~ permit for a pro sed 'mine expansion. Although there were unresolved issues in 1 I that ~ase which could ultimately feet the activity conducted at the sit-e. the Shorelines Hearings '12 Board found that the Clark Coun Board of Commissioners did make a final decision on the < , 13' shorelJne pemiits after the h~ari examiner emplOYed by the County had made an initial 14 ' determination. IS In this caSe, Jefferson Co ty adopted LUPO with the' stated purpose af establishing ]6 " P%WCdures for the COW'lty to 'pro toSS land use applications. The ordinance states: 11 The PrOcedtir~ arI designed to pf~mole: timely and informed public puUoipatjon; eliminate redundan4'Y:m land use application review process; minimize delay and expente; and help ens~e e USe of land in a manner consistent with County goals as set forth in the Comprehepsi v Plan and development regulations. Section. 1, A.ttachment 4, Declarar on of Ai Scarf. 18 19 20 21 SHB 05-029 ORDER ON M()TIONS 10 , .f'1. , .' . . ',' , . 17 , 18 19 POWERS & THERRIEN J u I 22 20e": 44 P.29 ~aX:509-453-0745 1 REf~1F~' Y=~'J JUL 2 4 2006 . . '. JEFFERSON COUNTY DCD o Incorporates shoreline permits applicatIons and appea1sas . In Jefferson County ~ L 2 part of the permits subject to its iew procedures, Section 6 Of the Qrdinance divides land use 3 applications into three different tegories. The I'Type N' category only requires the Director to , , 4 make an administrative decision Shoreline e~emptions and SSDPs for prinwy uses are both Slisted under thi$category. 6 Consistel1t with its stated purpose. Section 7 orLuPO allows applications to be 7 consolidated. This section pl'Ovi s that: ,8 A land use appli tion that involves two Of more pennits may. at the option of the Appliaantj be 'consol~date into a single process mins the highest proced'\.lfe requited for 9 any permit iooluded in th application., 10 Attachment '4, Di'claratltm qf Al ,11 12 13 Condomil1iui'n subdivi.sio' S offive or more units and conditional uses are considered to 14 by Type B decisions. Type Ii de 'slons require the decision to be made by a Hearins Examiner. Section lS.A. ofLUPO mandates the,use of the Hearing Examiner procedures for ~rrype Bland use applications and all other: la use applioations considered under Type B prOoedures usinS consolidated pllnnit review.": B ause the proposed project includes a SSDP (Type A deoision) 15 16 and a eondombrlwn subdi'Visibn ,( e B decision), the consolidated application process under Lm'O requires a Hearing Ennrln r to review the SSDP in tbis case. A further examinatiOn of UPO illustrates that the SSDP was subject to the entire LOPO , process, l;Wd that it was M error the County to segregate the SSDP apart from the. rest of the 20 21 it the permit to Ecology., Section 19 Qf LUPO contains a 8HB OS-029 " ORDER ON MO'tIONS 11 .1 L . . : " .' :..:.'" POWERS & THERRIEN ...., " I..,..... .... 110.-_ "MI. '. ~aX:509-453-0745 Jul 2220_11:45 P.30 1 chart showing the nwi~ .IREeEI' \, rJEI,'Dr-~.-,,"', ' \" -1 i 1 I /' JUL 2 4 20U6 , ' JEFFERSON "0 ' res ~o be undertaken by tbe Hearing Examiner and the L UNTY D CD \2 Appellate EXaminei'. In tho A ' ~Ilate Examiner column, both Type A and Type B applications 3 contain an asterisk. 'the astms I as indicated inthe key, provides "'These dee/lions ma'y be 4 appealed to Superior Court Or t Shorelfnes Hearings BOQrd in accordance with Chapter ,5 36.70C RCW orChapter90iS8 CW." (emphasis added). No such' asterisk appears in the 6 Hearing E~ column. , 7 , Furthermore, Section D.7. ofLUPO states that "[t}he decision of the Hearing Examiner 8 ' shall be final IIn14s3 t Within tou ' 11 (14) calendar days after issuance: of a decisiont a party 9 appIals the decision to the APPel ate Examiner in aocordance with this Chapter,'" (emphasis 1'0 ,added). Nothing in LUPO s~gge s'that the Hearing EXaminer~s decision regarding a shoreline, 11' " permit would somehow becotbt final decision if a timely appeal of this decision was made to 12, the Appellate Exlm1ir1er, 1"bt ~A nate Examiner" is defined as "tbc individuat who decides 13 appeals of Hearing Examiner . sions. tt Se(:tton 2, Attachment 4. Declaration 0/ Al Scalf. 14, Section S ofLUPO contains Spf:e :fie exemPtions from the review processes established in the IS. cbaptCr. Nt) ~emptionllare taste for shoreline cases. Thus, there is simply nothing in thi5 1'6 " Qrdinance tha1 Wbuld give ~tice a party that an. alternative method of appeal applied, and that 17 a flrw decision had ~n made at e hearings examiner level for the shoreline aspects of a 18 permit. ,19 ' In the p~nt case, Jeffers n County transmitq,d the SSDP to Ecology even before the 20 H~ing Examiner renc1ered his d . sion on reoonsiQeration, Segtion CA. states that '1i]f a 21 , ,: SHB 05.029 0 ORDER ON MOTIONS 12 ',~, .: , , ' i, . . l f ' r." ,. POWERS & THERRIEN ~aX:509-453-0745 Jul 2220_11:45 P. 31 i RECEIVED JUL 24 2006 . '. ..' ...... ..... JEFFERSON COUNTY OCO timely and appropriate te'qust or reconsideration is filedt the appealperiod shall beginfrom the date che dedsiono'n tlut redoH$lderation is issued." (empba.~is added). the SMMp controls over LUPO because LUPQ was never 2 3 ..... (41.... ,,,, ... --"':1:_... . ........ - -- .,....,. 6 ' Pemlit appeals, is aibUri&mtly c ar. Section 3 ofthis ordinance expressly states that: 7' The prtieed.uies deCision-making des(,'tibed in this Chapter and in the Rules of Procedure ad.opt~d U;n 'this Chaptet supersede any conflicting procedures that may be 8 " found in other chapters f the Jefferson County Code. This Chapter applies to existing , pennlt applications as w U as to those that may be filed in the future. 9 10,'" Jefferson COQlUyest~lia two..tier appelliteprocess with different hearing , , ',11 examiners at each level for QO iidated land use'applications. Because a portion of this process , .14, ' authori7..e~ the Hearings Exminer to take actions regarding , . 12 m:ayoccasionaHy include shii:re!" e permits does not require the incorporation of this entire , " ". . , . 13 'process as pan oftbe SMMP. ,- Even if the Respond~tsi gu:ntent that the SMMP controls over LUFO is accepted1 the , '1 S · Heari.ng Examiner' s decisi~ ~til does not constitute the final decision in thls case. Section 16' 18.25.480(2) and (3) of the s: 17 ,pennit applications under the Sb 'line Management Act and the SMMP. Section] 8.25.490(2) 18, ,provides that the Board of cOUnt Commissioners acts as an appeals board .'with respect to 19 'decisions by the hearing ~iD issued within tbe scope of the master program." This includes ,,20' :~ais of decwOiis regarding a licatiollJ for shoreline permits. Section 18.2$.490(1). lithe , , , , ,21. " County coDC:luded thllt there is no :ppeal to the appellate hearings examiner on shoreline SHS 05-029 .,' 'ORDER ON MOTIONS 13 1, " ~ . " .: :', ~~. ,', . . . . .. ~~'. " .~. . ,~,\' , '. ::.' ~.,'., POWERS & THERRIEN ~ax:509-453-0745 ..,..""I...".Y....~.."..,.. Jul 2220_11:46 P.32 1 permittins matte1'8, it shOuld " j,r.,.",,~\.. ,~" lr;'" EI\\fJED' JUL 242006 , . " JEFfERSON COUNTY Dcn 'e directed petitioner to this alternative route of review prior to 2 tt8fismitting the deciisi<>n to, E-e logy. 3 Although $ection18.2S 690 provides for appeals to be made to the Shorelines Hearings 4' BOard, that s<<..'tiotJ applies only after receipt of the fmal order. Respondentst sugse..~on that S Section 18.25.690 allows appeas direotly from the Hearing Examiner to the Shorelines Hearings ~ . Board would make Janguagt inection 18.25A80 superfluous. When interpreting legislative '1 " enactmel:lts, they Should be read, give each word and clause effect so no part is rendered S " meaningJessor supertluous.; Ha 'gaffntr v. Seattlet 151 Wn.2d 439t 4S1t 90 P.3d 26 (2004). It 9 also fails to recognize tbat~i 'n 18.2S.510(8) authorizes a person aggrieved by an action taken 10 : on an lipplicationmay app~ thtld~isiOn in compliance with Ssction 18.25.680 and 18.25.690. It ' (emphasis added). Section 1.8.25.680 'authorius a~]s before the Jefferson County Hearing 12 Examiner. As discussed earlIer, ection 18.25.490 est8blishes the Board ofCounry 13 COmmissioners as an a~ ,'14' ' TrendweJt ilso.c~. 'other rules of statutory construction. including "the specific " r5 cOlltrolsoverthe general~! sh:oul make the SMMP supersede the LUPO. Allbaugh this is a 16 widely recognia:d rule of s'tatuto c.oristruction when two provisions cannot be harmonized, , 17, Omega Nalitmalln.furanc, Compty v. MarqUQrdt. 115 Wn.2d 416) 425,799 P.2d 235 (1990), , 1 S, in this case T~1idweat halftl1e ar ' ent backwards. The more specific process is the , l:~ ' cOiiBolidated review ptOOes.<je~tab ished by LUPO to implement the Regulatory Reform A(.'t. 2()' This controls ovtr the tnor~ gC1t~r ~d earlier enacted provisions ~fthe SMMP. In addition~ if , , 21 statutOry provisiOn! contlie~ the ora specific and la.test in order controls. Stat, 11, San Juan SliB OS~029 " . ORJ)ER ON M.OTIONS , 14 :, ,L' , "I': . .' . , . " . ,', ':" ", ': '.:~ . I..", . '.:" ..,'" POWERS & THERRIEN Jul 22 20_" :46 lRJECEll":lPT\ , )-L-, , i}J -,~.: JUL 2 4 2006 JEfFERSON COUNTY oeD P.33 Coltnty,l02 Wn.2d 311~ 320~ 6 6 P.2d 1()?) (1984). Bven if there isa question about :2. reconciling these two ardin, · I Jefferson County expressly stated in Section 3 of LUPO, 3' whi~h is entitled '~Contrrinilig dbw1ce and Rules". that LUPO expressly supersedes any .d. (>.onmctine otdinimbe. tbe LU prOVisions control the processing oftbis permit appliCation , ' The Jefferson County Haring Examiner cannot ,pick and choose what peml1ts are subject 7 ' to filU l.UPO review. In Morga ,the Clark County Boatd of Commissioners was the entity 8" designated to make the final d ion On the shoreline pei1nits in question. If tl1e Hearing '9 Examiner in that $ase had tT$i1s 'ued the permits to Ecology prior to the CommisSioners' action) 10 ' it likewise Wouldh:ave beenfJ ' d because it was not a nt1al decision by the County. Jetferson' n County had not ye1 made a final ecision .regarding the SSDP in this case when the petm.i1 was 12, tTan.lIl11itted to Ecology prior to re iew'by the Appellate Examiner, or alternatively, by the Board '13 of County Conimissione~ a4d ' as an appeals board. 14 ent is usually the remedy in a case where there is a lack of , ] S - a final decision by the local gOY ent. Here, because of confusion and misdirection in the ]6 , application af the proper ptocedur ' s for the shoreline permit, there is no f'mal decision by a Jocal 1'78bV$mment st1ff'ioiebrto give;tfu: oard jurisdiction. 18 19 20 ,21 SHB OS..()29 , , ORDER ON MOT10NS' 15 l . "~'" :~ . ~" . .':. ,.'~ .' :::. '\.' .:::...... , ,'. . POWERS & THERRIEN ~FaX:509-453-0745 J u I 22 20~ 11 : 46 2 ORDeR, , , Judgment are DENIED on all issuer and the case is :5, REMANDED to Jefferson C " ' ty fur further actiOnBl consistent with this opinion.. 10 ,n 12, · , 13 ' 14 ' 15 16 '17 18 19 2Q 21 4 5 6 .,If . . ' DoM this it. day of ,7 8 9 SHB OS..o29 , ORDER, ON MOTIONS 2006. sa.oREL.lNEs HEARINGS BOARD . ~'Yft.+- WILJ..IAM H. L 'YNCHt Presiding j... , . i. .. h~b'b.~. KATHLEEN D. MIX, Mem . . ~ ( .....~r~ JUDY w ~SONl Member ~' ,',',.'B.a~ , . Y BARBOUR., Me her , "",;> .. ;'~ r 't 16 ' ,P, :!" I," ' , , 'fe, " .,.',:.<.::r P.34 lJJ #CJJ ~ 1l \. 1e ((' "',,-.., rr W}>,7~ ' ',' 11'7. lD d /1 J!1L " u 2 4 21Jso JEffERSON COUNTY DCD 'II. ""',i ,',' , .