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POWERS & THERRIEN
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Jul 22 20" 11 :33
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SUbject:
"Powers & Therrien~ <p ers_therrien@yvn.com>
uBarbara Nightingale" < nightingale@co.jefferson.wa.us>
IIPowers & Therrien" < ers_therrien@yvn.com>
Friday, July 21, 2006 4; PM .
EXHIBIT A SHB Order 0 Motions 051706.pdt: Response on proposed amend to dev agmt
072106 FINAL.pdt i
Ludlow Cove 2 - Response on Amendment to Proposed Development Agreement
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RECEIVED
JDrTI2006
JHfEHSUN COUNTY DeD
Powers & Therrien
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From;.
To;
Cc;
Sent:
Attach:
Barbara:
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Pleas~ make this statemen~ part of the log and send a copy to the hearing
exammer. !
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I think I have picked up all of the log references. However, if there are items
that are not picked up as log items or exhibits, I incorporate them by
refereQ.ce. Upon identificafion, I will be happy to send them to you.
Rick Rozzell told me that ~e will be joining in this letter. Please read the
letter as his statement also pruess he otherwise informs you.
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Les Powers
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POWERS & THERRIEN, P.S.
3502 Tieton Drive I
):akirna, VVPl 98902
Phone (509) 453-8906
Fax (509) 453-0745
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7/22/2006
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July 21, 2006
STEPHEN K. CASSEAUX, JR.
Jefferson County Hearing Examiner
c/o Barbara Nightingale, Lead Planner
Jefferson County Community Development Department
621 Sheridan
Port Townsend, W A 98368
RE: Amendment No.1 to Port Ludlow Development Agreement
Dear Mr. Casseaux:
I own a townhome in the Port Ludlow MPR and am a resident at 44 Heron Rd., Port
Ludlow, Washington. I purchased the townhome from Port Ludlow Associates, LLC,
('PLX) in December 2003. As such, I have standing to make the comments to PLA's
proposed amendment to the development agreement entered in May, 2000, initiall('
between Jefferson County and Olympic Resources (the"Development Agreement). By
assignment in 2001, PLA is successor as developer to Olympic Resources. I wish to join
the objections to the proposed amendment submitted by Ms. Elizabeth Van Zonneveld
for the Port Ludlow Village Council ('PL Ve) and Ms. Moss, counsel for Mr. Lewis Hale.
I adopt by reference their comments.
I attended the workshop held by the Jefferson County Board of County Commissioners at
which PLA and Trend West, its putative assignee, presented the proposed amendment to
the Development Agreement. My comments are based on my notes and recollections of
events at the workshop. Thereat, Mr. Helm spoke for Trend West. He recited
1. that the proposed Trend West development that would be permitted on the
Ludlow Cove II site under the proposed amendment would be economically beneficial to
Jefferson County and Ludlow Bay;
2. that it would bring more than thirty five (35) or more full time benefit
carrying jobs;
3. that the ownership 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 units shared by two hundred fifty thousand (250,000) vacation
club members;
4. that Trend West sold perpetual, annually renewable vacation rights
evidenced by points issued by the association to club members;2
Resolution 42-00, Exhibit A thereto.
While this comment may be extrinsic to the basic analysis contained herein, Trend West by
admission sells vacation points entitling the owner to apply to use six thousand units owned by Trend
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5. that club members could trade the points and or cash to stay in any of the
vacation accommodations managed by Trend West through the arrangement;
6. that the points required scheduling and were adjusted for the value of the
vacation property selected by the owner or user of the points such that the owner or user
might also pay for all or a portion of the use with cash;
7. that there is no ownership nexus or use right between any club member
and any points that club member might own and any particular vacation facility;
8. that on average the club members or other persons using their points
stayed three days at a time in the vacation units;
9. that the vacation facilities had minimal recreational amenities and relied
on recreational amenities to be provided by"partnerships'with local businesses;
1 O. that such "partnership s' took the form of coupon books providing discount
use of the recreational amenities to club members;
11. that no hotel taxes were paid to local government on the exchange of the
points and other consideration by members and persons using members' points for the use
of the vacation facilities.3
Mr. De Sa e Silva and Mr. Verrue, for PLA represented:
1. that if the Trend West project is approved, PLA will donate and apply the
proceeds from the sale of the land to Trend West in the amount of $3,600,000 to the
construction of a golf club facility;
2. that the Trend West project would bring additional consumers into Port
Ludlow that will justify the development of a grocery store and other missing retail
facilities;
3. that PLA is currently losing money on the operation of the golf course (the
'Golf Course), the Harbormaster Restaurant (the'Restauranf) and the Inn at Ludlow Bay
with its restaurant (the''Inrl);
West's affiliated not for profit association (the "Association"). The Association provides the opportunity to
use the units through an allocation system operated by Trend West. Trend West admits that the members
do not own interests in time or fee in any particular vacation unit, the legal requirement of a time share
under Washington law. See RCW 64.36.010(11).
3 A member ofthe BoCC asked whether the Association paid room tax. Mr. Helm denied that it
did. Please consider that the Association members buy their memberships for cash, t he memberships
entitle the members to use the units, and Jefferson County does not see this as identical to room rent subject
to taxes. Trend West is a private hotel that accepts pOoints or cash for rooms. Why would the County not
collect its tax?
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4. that PLA anticipated the demand from the Trend West guests would make
these economic ventures viable and profitable;
5. that without Trend West, PLA would not continue to absorb the
operational losses associated with the Golf Course, the Inn, and the Restaurant;
6. PLA and Trend West will obtain substantial shoreline development
permits for the project as a result of the anticipated reconsideration of the Shoreline
Hearing Boards adverse determination on the SSDP application;4
7. PLA and Trend West will prevail in their LUP A Petition of Appellate
Hearing Examiner Galfs denial of Hearing Examiner Berteig's approval of the Trend West
project under existing zoning;
8. Those that oppose the Trend West project are isolated property owners,
largely owning vacation properties, in the Port Ludlow MPR that do not reflect the best
interests of the Port Ludlow community.
Now this makes a very tidy and attractive proposition to Jefferson County, not itself
endowed with major sources of tax revenue. If Jefferson County just bends the rules to
permit Trend West on property zoned under the Comprehensive Plan as single family
detached with a maximum density of four residential units to the acre to classify Trend
West as a multifamily residential use specially permitted by amendment to the
Development Agreement on the Ludlow Cove II Plat, then Jefferson County and Ludlow
Bay will reap significant economic benefits as well as additional retail opportunities to be
provided by as yet undisclosed merchants waiting in the wings to exploit the Trend West
opportunity and by saving from closure recreational facilities currently operated at loss
by PLA. But for a few''troublemakers'ofwhich I am one, the economic, recreational, and
retail interests of the Ludlow Bay community would be advanced by new jobs, new retail
facilities and a new golf club facility. Those few troublemakers were able to persuade
AHE Galt and the SHB of the validity of their erroneous positions contrary to the
interests of the Ludlow Bay community, errors that will ultimately be recognized and
resolved in favor of PLA and Trend West.
There are several problems with this story. First and most important, as shown by Ms.
Moss, the proposal is illegal and requires Jefferson County to ignore its Comprehensive
Plan, the development regulation adopted by Jefferson County consistent with the
Comprehensive Plan to address the development of a master planned resort from the
small resort located in the Port Ludlow MPR, vested land use rights applicable to the Port
Ludlow MPR and enjoyed as assignees by more than two thousand residents or
residential unit owners and rights those same owners hold in covenants, conditions, and
restrictions applicable to the Port Ludlow MPR as a whole, vesting architectural and legal
The Shoreline Hearing Board ("SHB") opinion issued. It held that the SSDP Application had not
been approved by final action, that it had no jurisdiction as a result, and that the matter is remanded to
Jefferson County for approval or denial under its land use protocol. Mr. De Sa e Silva may have been
optimistic about the results of the SHB hearing. A copy of the final opinion is attached hereto as Exhibit A.
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review authority over new plats developed within the Port Ludlow MPR after May, 2000,
including Ludlow Cove 11.5
Second, to the extent it provides for additional amenities, particularly the golf club, it
ignores both the fact that the facility has been promised by PLA for more than four years,
long before Trend West appeared on the scene, and that Trend West cannot cure the lack
of viability of a golf club that contains about two hundred members, only about a third of
the number needed economically to support a golf club and its related amenities. All that
Trend West provide is green fees. That does not pay for infrastructure or its
maintenance.
Third, it does not deal with the reality that other than the Golf Club, the Restaurant, the
Inn, and the Marina, all run by PLA, there are no public recreational amenities that are
available to members of Trend West. The marina provides a few kayaks for rent. It has
no sail boats, contrary to the view expressed by Mr. Helm. There are no businesses that
want to establish recreational support facilities in the hope that a one hundred twenty unit
private hotel will provide sufficient demand to maintain them. The only public beaches
in the MPR are located near the hotel and the townhome plat. There is a trail system.
However, the rights to it are owned and operated through the PL VC and is not technically
available to Trend West that will not share amenities with the PLVC. The two major
recreational facilities, the Bay Club and the Beach Club are private and not open to Trend
West guests. The"minimal recreational amenitid'ofthe Trend West facility will not be
open to the public, including the residents of the Port Ludlow MPR.
Finally, as AHE Galt determined in the final action of Jefferson County and as the SHB
determined as to the SSDP, the project is not legal under either the zoning law in effect in
1995 when Ludlow Cove II was proposed6 or 2000 when PLA's predecessor agreed that
Development Agreement, Sec. 4.2.2, first sentence. That provision permits the developer to
assign interests to persons who will "own, develop and/or occupy portions ofthe Pope Property." The
developer reserved the right to assign interests in the Development Agreement or Pope Property to such
persons. See Development Agreement, Sec. 4.2.2, second sentence. The provision of the Development
Agreement denying third party beneficiaries excepts therefrom "successors, successors in title and assigns".
Development Agreement Sec. 4.13. The reference to successors in title and the reference to "Pope
Property" in connection with "successors" and "assigns" make it clear that the exception to third party
beneficiary status is not limited to assigns of the Development Agreement itself. Persons who purchased
property from the developers or their assigns are also assigns or successors in title and accordingly have
rights and standing under the Development Agreement.
6 Under the IUGA that was declared invalid in September, 1995, Ludlow Cove II was zoned
multifamily residential. HE Berteig approved the Ludlow Cove II Plat in the opinion issued July, 2002.
See AHE 2 Log Item I a. Therein, he erroneously characterized Ludlow Cove II as zoned single family
residential as vested in 1995 that permitted a multifamily conditional use. The opinion is additionally
flawed by its failure to trace the plat application. Had this been done, it would have been clear that the
application in fact lapsed in 1997. The opinion is finally flawed because it failed to deal with the effect of
the Development Agreement that expressly recognizes that Ludlow Cove II is zoned single family
detached. PLA is a party to the Development Agreement as successor to Olympic Resources and cannot
well say that it did not know that it acquired a property zoned other than as provided in the Development
Agreement. In short, by entering the Development Agreement PLA voluntarily and knowingly
relinquished any right in vesting that it might have enjoyed based on the proposal ofthe plat in 1995. A
further review of Mr. Berteig's opinion reveals that he selectively applied land use law at the request of
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Ludlow Cove II would be developed as zoned under the Comprehensive Plan rather than
as zoned in 1995.7 AHE Galt based his decision on the transient nature of the members
or guests that visit Trend West resorts. As admitted by Mr. Helm, the stay averages three
(3) days. Transient residential use is use less than thirty (30) days in duration.8 In 1995,
the applicable zoning code defined transient use as use of less than thirty days in
duration. Such use became commercial if accompanied by an exchange of consideration
for the use. Transient use included"resorts'or"hotels'.9 The issue is even less doubtful
PLA, here applying 1995 law and there applying the UDC where PLA was benefited. Under East County
Reclamation Co. v. Biomsen, 125 Wn.App. 432, 436, 437, 105 P.3d 94 (2005), the Court has held that
vested rights in a specific landuse may not be selectively waived. The effect of such a selective waiver is to
waive all of the rights claimed under the original vesting thereby confirming what is evident from PLA's
execution of the Development Agreement, that it waived the rights to vest the property under land use law
in effect in 1995 and elected to have the law in effect in 2000 apply. AHE Galt was aware of the issue. He
remanded for a determination of the proper zoning upon which a further analysis of allowable conditional
use could be based. Mr. Berteig responded by reiterating his original view. As Mr. De Sa e Silva admitted
at the workshop, Mr. Berteig's response has no legal effect as long as the LUPA Petition remains pending
and unresolved. Mr. Berteig gave notice ofrecusal on July 14,2006. Mr. De Sa e Silva moved that Mr.
Berteig reverse his recusaI. Mr. Berteig did so on July 17, 2006. The undersigned neither accept Mr.
Berteig's reversal nor waive their rights to object to any order or decision entered by Mr. Berteig with
respect to the Port Ludlow MPR on the basis of the legal effect of the recusal and .the justification thereof
set forth in Mr. Berteig's correspondence that clearly show appearance offaimess is here an issue.
7 Vesting is a voluntary relinquishment of a known right. It strains credulity to think that Olympic
Resources did not know of its rights under the IUGA or know that it was relinquishing those rights by
signing the Development Agreement which gave it twenty years of vesting protection. What makes this the
more clear is that the Development Agreement carved out the one plat, the Townhome Plat that was
partially developed at the time and vested it as of 1994 when the preliminary plat application was initially
filed. See Development Agreement, Sec. 3.13 and 3.15. See Irvin Water Dist. No.6 v. Jackson
Partnership, 109 Wn.App. 113, 125,34 P.3d 840(2001) and Cent. Wash. Bank v. Mendelson-Zeller. Inc.,
113 Wn.2d 346,353,779 P.2d 697 (1989); Ward v. Richards & Rossano, Inc., 51 Wn.App. 423, 434, 754
P.2d 120 (1988).
8 JCC 18.10.200 defining transient residences under the Uniform Development Code, Article 18,
JCC.
9
Jefferson County Ordinance 09-0801-94, the Jefferson County Zoning Code ("the "Zoning
Code"), Sec. 3.94. Read together, transient use is use of less than thirty days. That use becomes transient
accommodations if accompanied by a commercial nexus, that is exchange of consideration. As AHE Galt
recognized, the test is not whether the proposed use is or is not transient accommodations but whether the
proposed use is either single family or multifamily residential use. Assuming, arguendo, HE Berteig's
argument, multifamily residential still requires that the unit be a dwelling unit, that is a unit "physically
arranged so as to create an independent housekeeping establishment establishment for occupancy by one
family..." See Zoning Code Sec. 3.32. Both single family and multifamily residences are built around
dwelling units. See Zoning Code, Sec. 3.89 and 3.69. Transient accommodations are characterized by a
commercial nexus. See Zoning Code Sec. 3.21. However, to meet the condition of single family or
multifamily residential use, a dwelling unit, that is a unit designed for occupancy and housekeeping by a
single family is required. Here, the use proposed by Trend West and PLA must be characterized as
transient accommodations. This follows because the members or guests use points, purchased with cash, in
exchange for the transient use of an accommodation. AHE Galt recognized this reality. He recognized the
record that showed, as Mr. Helm admits, the members buy and exchange permanent vacation points for use
of units on a short term basis. Nothing in the Zoning Code requires that the consideration be paid in cash to
meet the "commercial" classification. See AHE Galt Opinion of December 7,2005, pp. 20-22. Assuming
that PLA has waived application of 1995 land use by executing the Development Agreement, the property
is zoned single family detached with a maximum residential density of four units per acre which
specifically prohibits multifamily use as a conditional use. See Jefferson County Ordinance 08-1004-99,
Sec. 3.103; Development Agreement, Appendix 3.
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under the MPR Code that is applicable to Ludlow Cove II. Referring to the
Comprehensive Plan that shows the Ludlow Cove II Plat zoned single family detached,
the Development Agreement adopting such zoning, and the MPR Code executing same,
there is no question but that the Ludlow Cove II Plat is zoned single family residential
with a maximum density of four (4) residences per acre and that conditional uses do not
include even multifamily residential use, a classification that would apply under the
proposed amendment to the Development Agreement. Neither the amendment to
residential density nor the use proposed therein comply with the MPR Code or the
Comprehensive Plan.
Mr. De Sa e Silva's description of the current state of litigation and administrative appeals
is not accurate. With one other appellant, the undersigned appealed the approval of the
SSDP by Jefferson County without permitting an administrative appeal of the plenary
decision of HE Berteig. The SHB concluded, consistent with the petition, that the SSDP
approved by the DOE in response to the filed application was invalid because the
approval by Jefferson County was not by final decision thereof. Petitioners and
Respondents agreed to request dismissal of the petition upon final order by the SHB
incorporating the conclusion of the preceding sentence that was included in the SHB
memorandum decision. The SHB embodied that conclusion, dismissed the petition for
lack of jurisdiction, and remanded the matter to Jefferson County for final action. This
decision is consistent with the requests of Petitioners and Respondents; Respondents
complaint is that the SHB did not treat the SSDP as validly issued in its remand. It is
important to distinguish between Mr. De Sa e Silva's rendition that mischaracterizes the
facts and the description set forth in this paragraph that shows the actual response of the
SHB.10 What is important is that the SHB recognized that Jefferson County ignored its
own rules, violated due process rights of interested parties by depriving them of the right
of administrative appeal, and treated the SSDP application approved by Jefferson County
as a nullity consistent with its findings.
Similarly, Mr. De Sa e Silva mischaracterizes the current judicial status of Ludlow Cove
II. Mr. Berteig's decision approving the decision of DCD Staff to approve PLA's
characterization of a plat zoned single family residential as compatible with the
development of a Trend West resort was reversed on administrative appeal by the
undersigned and Messrs. Lewis Hale and Rick Rozzell to the AHE. AHE Galt decided
that the record limited to that admitted by HE Berteig and the law showed the proposed
use to be transient accommodations, a use precluded either under the Zoning Code or the
MPR Code for either single family or multifamily residential plats. He reversed HE
Berteig and remanded the matter for a decision on the issue as to proper zoning and
conditional use. This is the final decision of Jefferson County. PLA and Trend West
filed a petition of AHE Galt's 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. Galt's decision. A fair appraisal of the situation is that PLA and Trend West
do not believe they will prevail in Court and are delaying the issue to seek a legislative
solution to the pending judicial issues.
10
See SHB final Order, Exhibits A hereto.
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To summarize, the law at the time the Ludlow Cove II Plat application was filed and the
law otherwise in effect in the Ludlow Bay MPR, both prohibit the development of
Ludlow Cove II as a Trend West Resort. That conclusion is supported by AHE Galfs
decision that the Trend West Resort is not a permitted use of the Ludlow Cove II Plat.
This is the final action of Jefferson County. The SHB decided, without regard to the
result ofPLA's motion for reconsideration, that Jefferson County had not properly
approved the SSDP for Ludlow Cove II and that the SSDP was not validly issued by the
DOE as a result. The only logical result is that the application must be returned to
Jefferson County properly to approve or deny the SSDP. This is exactly the result that
the SHB reached. Mr. De Sa e Silva's representation to the contrary mischaracterizes the
facts. In short, the reason that the proposed amendment to the Development Plan is
before the Jefferson County Board of County Commissioners (the''BoCC) is clearly that
PLA and Trend West do not believe they are legally on good ground to urge that a Trend
West Resort is a use consistent with single family residential zoning either in 1995 or
2000.
What PLA and Trend West propose is that zoning otherwise applicable to Ludlow Cove
II under the Comprehensive Plan, MPR Code or Development Agreement can be
modified by modifying the Development Agreement. That proposal conflicts with the
procedures and purposes applicable to modifications of zoning or law that protects it. It
conflicts the notion of vesting as it protects those who purchased from Olympic
Resources or PLA. It conflicts with CC & Rs in favor of the PL VC that are applicable to
the development of Ludlow Cove II (the"PL VC CC & RS)II. Whether or not it improves
economic conditions in the Ludlow Bay MPR, it is an illegal proposal that cannot be
resurrected by a legerdemain converting a quasi judicial review to a legislative act. This
is a classic case of rent seeking. The importance of the matter to PLA and Trend West is
vastly greater than the impact thereof on any single resident of the Ludlow Bay MPR.
The muted response of the residents tends to be overcome by the strident demands of the
developer. What the HE must do is filter the noise to determine the legal and factual
positions of the parties and the true nature of their requests.
A review of the statutory authority for development agreements makes it absolutely clear
that a development agreement is entered to execute a policy set forth in the
comprehensive plan.12 The same requirement applies to development regulations which
regulate particular aspects of comprehensive plans.13 This requires that development
agreements be both consistent with the comprehensive plan providing for them and the
development regulations regulating them. A development agreement implements the
policy of the comprehensive plan and the regulation imposed by the development
regulation. The Development Agreement is a development agreement,14 the MPR Code
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14
See Exhibit B (Barbara Nightingale at DCD has confirmed this as part of record already).
RCW 36.70A.130(1)(d).
RCW 36.70B.170(1), last sentence.
Resolution No. 42-00, Findings 4,5; Development Agreement, Sec. 1.3.3.; MPR Code, Eighth
Recital.
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is a development regulation I 5 and the Comprehensive Plan is a comprehensive plan
within the meaning of these statutes.
The requirement that the Development Regulation be consistent both with the
Comprehensive Plan and the MPR Code and that the MPR Code be consistent with the
Comprehensive Plan is recognized in the language of the Development Agreement and
MPR Code. 16 The requirement is not that the Comprehensive Plan and MPR Code be
made consistent with the Development Agreement as modified. It is clear that the
reverse is the case. The Development Agreement must remain consistent with the
Comprehensive Plan and the MPR Code. Such construction is further consistent with the
statutory requirements to which the prior paragraph and the recitals of the Development
Agreement and MPR Code refer.
Under the amendment to the Development Agreement sought by PLA and Trend West,
Trend West time share use is classified as a residential use permitted on the Ludlow Cove
II Plat and the maximum density allowed on the Ludlow Cove II Plat is modified to
nine. I? It is absolutely clear that the proposed amendment to the Development
Agreement conflicts both the MPR Code and the Comprehensive Plan. The
Comprehensive Plan zoned Ludlow Cove II single family detached with a maximum
density of four residences per acre. The MPR Code, consistent with the Comprehensive
Plan, zones Ludlow Cove II single family detached with a maximum density of four
residences per acre. Neither permit multifamily residential as a conditional use.
Accordingly, the proposed amendment must fail because it violates the use adopted by
the Comprehensive Plan and regulated under the MPR Code.18 The Development
15
MPR Code, Third Recital, states with respect to the Port Ludlow MPR as described in the
Comprehensive Plan: "Whereas, the County is required to adopt development regulations that are
consistent with the provisions of the Comprehensive Plan".
16 Development Agreement, Sec. 1.3.9-1.3.11, 1.3.13; MPR Code, Third and Eighth Recital.
17 The Proposed Amendment takes the position that the maximum density is currently sixteen, the
maximum density permitted multifamily residential in 1995, when the application for the subject plat was
initially submitted. That conclusion is not presently warranted. AHE Galt remanded to HE Berteig to
decide how Ludlow Cove II is actually zoned. There are several possibilities. Under the 1995 IUGA, the
property is zoned multifamily residential. Under HE Berteig's 2002 decision, the property is treated as
zoned single family residential with multifamily residential as a permitted conditional use, again based on
vesting ofland use in 1995. Under the Comprehensive Plan, the Development Agreement, and the MPR
Code, the property is zoned single family detached. The maximum permitted density is four residences per
acre. Multifamily residential is not a conditional use. See MPR Code, Sec. 3.102,3.103, Schedule I to
Development Agreement; Port Ludlow MPR Land Use Map(recordable version of August 28, 1998)
Comprehensive Plan map, Exhibit 3 to Development Agreement. Development Agreement Sec. 4.7
incorporates exhibits and schedules into the Development Agreement by reference as contract provisions.
The developer agreed to the zoning provided by the MPR Code. Seventh Recital to MPR Code.
Accordingly it is possible to view the allowed density as either four or sixteen depending upon the results
ofPLA's and Trend West's LUPA Petition of AHE Galt's decision. Until there is a disposition of the
LUPA Petition, as Mr. De Sa e Silva admitted at the BoCC workshop, HE Berteig's opinion on remand as
to zoning cannot issue. This follows because the LUPA Petition covers all of AHE Galt's decision,
including the remand. Thus, it is not accurate to state that the amendment reduces permitted density on
Ludlow Cove II from sixteen to nine. If adopted, it may have the effect of increasing same from four to
mne.
18
Development Agreement Sec. 4.6 provides for amendment. It requires written consent of the
County and Pope. The County Commissioners must approve the amendment by resolution or ordinance
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Agreemenfs terms, either initially adopted or subsequently adopted by amendment cannot
have an effect of conflicting 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 may be affected through a modification of the Development
Agreement is JCC 18.40.060(5).19 While the language read without the parenthetical
might suggest that a development agreement provision permitting land use trumps a
development regulation included in the unified development code, that reading fails.
First, the inconsistency permitted is between the development agreement and the unified
development code not between the development agreement and the Comprehensive Plan.
Second, the basis for permitting inconsistency between the development agreement and
the unified development code as to master planned resorts is that a"master planned resort
requires a site-specific Comprehensive Plan amendment'. This is exactly the point. For a
development agreement to be amended so as to conflict with a Comprehensive Plan, the
modification must be approved as''a'site-specific' Comprehensive Plan amendment:'
Because language of an ordinance cannot be ignored, the reading of JCC 18.40.860(5)
proposed by PLA and Trend West must be rejected.2o
The process by which PLA and Trend West seek to effect"a'site specific' Comprehensive
Plan amendment' is by amending the development agreement. The protocol applicable to
such an amendment is limited to notice to the community and a public hearing before the
BoCC. The protocol to amend the Comprehensive Plan is more formal. Amendments
and updates to a comprehensive plan may by statute be considered no more frequently
than annually.21 In Jefferson County, the deadline is generally March 1 st for submission
of proposed amendments. I understand it was extended to April 1 st in 2006. Further,
proposed amendments to the Comprehensive Plan must be submitted to the State for
review at least sixty (60) days prior to their proposal to the County. PLA and Trend West
after notice to the public and a public hearing. Nowhere is there any suggestion that the amendment may
conflict the Comprehensive Plan or MPR Code both of which, as noted above, are recognized as statutorily
binding.
19 It states:
Consistency with Unified Development Code. The development standards and conditions set
forth in a development agreement shall be consistent with applicable development regulations set
forth in the Unified Development Code, except in the case of a master planned resort (which
requires a site-specific Comprehensive Plan amendment), where adopted standards may be
modified by the development standards contained in the agreement, so long as all project impacts
have been adequately mitigated.. ..Ord. 2-02 Sec. 1; Ord. 7-01 Sec. 2 (Exh. B); Ord. 11-00 Sec.
8.11(2).
Sprint Spectrum. L.P.lSprint PCS v. City of Seattle, 131 Wn.App. 339, 346, 127 P.3d 755 (2006);
Puyallup v. Pacific Northwest Bell Tel. Co., 98 Wn.2d 443,448,656 P.2d 1035 (1982); Premera v.
Kreidler. Insurance Commissioner for the State of Washington, 131 P.3d 930,937,938 (2006); King
County v. Central Puget Sound Growth Management Hearings Board, 142 Wn.2d 543, 560, 14 P.3d 133
(2000); Restaurant Development. Inc. v. Cananwill. Inc., 150 Wn.2d 674, 686, m 80 P.3d 598 (2003)
20
21 RCW 36.70A.l30(2)(a).
9
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failed to file for an amendment to the Comprehensive Plan or even to notify the State, a
condition for such filing. Rather than wait another year, they filed this proposed
amendment to the Development Agreement. The public purpose served by the limitation
on consideration of amendments to a comprehensive plan is clearly the need to encourage
public participation in the process.22 Permitting amendments to proceed piecemeal
throughout the year makes it virtually impossible for potentially interested parties to
obtain effective notice and keep themselves informed of land use changes contemplated
by Jefferson County or a developer. The Legislature was sensitive to the need to
consolidate and provide adequate notice and review opportunities to the public. That
policy would be defeated by a protocol limited to notice and a hearing before the BoCC
as provided for amendments to the Development Agreement.
It is questionable whether PLA has followed the requirements of the Development
Agreement in seeking an amendment of its terms. The Development Agreement
provides: 'The Agreement shall not be amended without the express written approval of
the County and pope (or its successors, successor in title and assigns with respect to the
property in which they have an interest):'.several issues arise. First, who must sign the
consent. Pope is not the owner of property within the Port Ludlow MPR. Its rights have
been sold or assigned. However, its assignees in title include not only PLA but all
persons who have purchased property in the Port Ludlow MPR, at least after May, 2000.
The language in the parenthetical requires not signature not only of the successor,
apparently the successor under th e contract, but also the successor in title, a concept that
includes all subsequent purchasers, and assigns, a concept that could include both assigns
in contract and title. The term"assigns'c1early includes persons who acquire by "sale and
assignment portions of the Pope Property. . .who will own, develop and/or occupy
portions of the Pope Property and buildings thereon:~3 This language makes clear
reference to the Pope Property and portions thereof. The Pope Property is the 1,200 acres
made subject to the Port Ludlow MPR under the Development Agreement.24 Thus, to the
extent any such person has an interest in"the propertY' such person's written consent is
required. The second question is the identity of the propertY'. Here, the underlying
concept Pope Property includes the 1,200 acres made subject to the agreement. When the
Development Agreement was entered and recorded, the developer recorded a set of CC &
Rs that vest architectural and legal review authority over all of the Pope Property as a
condition to the development of plats, subdivisions, and other land use requiring public
permits in the Port Ludlow MPR.25 The protections embodied in the PL yes CC & Rs
22
RCW 36.70A.140.
Development Agreement, Sec. 4.2.2, first sentence.
Development Agreement, Sec. 2.1 and Exhibit I.
Port Ludlow Master Planned Resort Master Declaration of Covenants, Conditions, and
Restrictions dated August 4,2000 and recorded under Jefferson County Auditor's File Number 435975 on
August 4, 2000, Exhibit B hereto (Barbara Nightingale at DCD has confirmed this as part of record
already), Section 2, 5; and Exhibit C hereto (Barbara Nightingale at DCD has confirmed this as part of
record already). Specifically, Exhibit C provides:
23
24
25
All development within the MPR zones is subject to Jefferson County regulations including the
Zoning Ordinance (the MPR Code). A description of the permitted land uses, densities and design
guidelines for each MPR zone are embodied in Jefferson County development regulations for the
Port Ludlow Master Planned Resort, Ordinance No. 08-1004-00.
10
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are granted for the benefit and protection of all of the Pope Property. A change in the
development standards applicable to any of the Pope Property from that governing at the
time of the Development Agreement affects all of the Pope Property and not just the
parcel subject to the proposed change. This is the basis for subjecting each division in
the Port Ludlow MPR to review by the PL VC acting as an ARC as a condition to the
solicitation of governmental permits allowing for the proposed use. The CC & Rs are a
property right included in the Pope Property that is held through the PL VC by all owners
therein.
Based upon this interest and duty, the PL VC has submitted a comment on the proposed
amendment calling to question the effect thereof on land use in the Port Ludlow MPR
and Jefferson County.26 That letter cautions the BoCC not to adopt a land use change by
operation of a modification to the Development Agreement. It is clear that the letter
advises Jefferson County that at not all successors, successors in title, or assigns to the
Pope Property that have an interest in Ludlow Cove II have signed a written approval of
the proposed amendment.
Whether the action of the PL VC is seen as unique to it under the PL VC CC & Rs or as
representative of the residents on the Pope Property, the effect of the action is to raise the
issue whether PLA and Trend West have the written consent of all successors, successors
in title or assigns as required by the Development Agreement. Certainly, under the
definition contained in the Development Agreement, PLA is not the only successor,
successor in title, or assign of Pope. How then is the BoCC permitted to consider the
PLA proposal until it provides the requisite executed consents of all of the persons who
fall within the class of successors, successors in title, and assigns? The answer is clear,
the application is defective because it does not meet the four comers of the requirements
The property is zoned single family detached. Section IA ofthe PL VC CC & Rs provides:
there are three separate residential zones within the MPR: Single Family, Single Family Tracts
and Multi-Family. Residential development will be in enclaves or clusters to avoid sprawl;
buffered from primary roadways; designed to maintain the existing character, minimizing
roadways, paving and other impervious surfaces; and connected to other areas within the MPR by
pathways and trails.
A review ofthe substantive proposal reveals that the italicized requirements are not and cannot be met. In
the proposal, Trend West has its own trails. While it may permit trail access to the PLVC trail through the
property, it is not located where it should be, along Ludlow Bay. Moreover, Trend West refused the
demand of the PLVC to subject the project to common CC & R requirements applicable generally that
assure the maintenance of existing character and consistency in design and construction. Because the
proposed development is a private resort that proposes to use the facilities of a public resort, the master
planned resort, it is, in effect, imbedded in the Port Ludlow MPR without being integrated therein. This
violates RCW 36.70A.362 that requires that the entire master planned resort be developed as an integrated
whole. It is clear that Pope Resources and PLA intended that Ludlow Cove II be subject to the zoning and
land use requirements contained in the Comprehensive Plan and the MPR Code, the applicable
development regulation.
26 See letter from PLVC to Jefferson County of July 17,2006, Exhibit D hereto (Barbara Nightingale
at DCD has confirmed this as part of record already).
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to amend the Development Agreement under its own terms?? This is not a question of
enforcing CC & Rs; it is rather a condition to the approval of an amendment to the
Development Agreement that is binding upon Jefferson County and PLA as well as all
other persons who have become parties thereto as successors, successors in title, and
assigns.
As a legal proposition, Jefferson County cannot participate in the proposed amendment to
the Development Agreement. It conflicts the requirements of the PL VC CC & R that the
subject property be developed in accordance with the MPR Code as single family
detached residences.28 Every resident of the Port Ludlow MPR is a beneficiary of the
PL VC CC & Rs. The PL VC 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 identified as part of the Port Ludlow MPR and is subject to the PLVC
CC & Rs. The amendment of the Development Agreement proposed by PLA and Trend
West conflicts the PLVC CC & Rs directly. Because the CC & Rs are an interest in
property, Jefferson County cannot approve an action in direct conflict with the PL VC CC
& Rs without compensation and then only for a public purpose.3D The rights of the
beneficiaries under the PL VC CC & Rs are real property rights that are accorded
protected status under the Growth Management Act and under the Washington
Constitution. Here, Jefferson County has made no offer of compensation, has not
proceeded to condemn the right, and offers no public purpose. In the aftermath of Kelo
v. New London,3l it is clear that assistance to the developer or increased tax base is not a
sufficient basis to conclude the public purpose test has been met.
The SSDP Application should be rejected based on the view expressed by Mr. Jeffery
Stewart.32 In addition to zoning, Mr. Stewart questioned whether the trail system as
proposed met the requirement of the Program in that it did not access Ludlow Bay.
Currently the plan has not cured same. Mr. Stewart's letter identified other issues
involving erosion and land use that have not been fully addressed. Mr. Stewart identifies
a National Pollution Discharge Elimination System ('NPDES) Permit that apparently had
and to my knowledge has not been applied for or granted.33 Mr. Stewart raises issues
surrounding the increased intensity of use associated with transient housing compared to
the use that would have been permitted if Ludlow Cove II were developed as detached
single family housing as zoned under the MPR Code. Mr. Berteig's interpretation of
27
Moreover, the language of Development Agreement Sec. 4.13, denying third party beneficiary
status makes the same "successors, successors in title, and assigns" a party of the ultimate assignor thereof.
Not only is the consent of the residents who hold title from Pope Resources or PLA required, but they are
parties to the very agreement that PLA seeks to modify without their consent. Their party status confers
direct contract privity between such residents and Jefferson County. PLA is no more than another assign
when viewed under the language of the Development Agreement relative to "party" status.
28 See footnote 25, supra.
29 See footnote 25, supra.
30 Viking Properties v. Holm, 155 Wn.2d 112, 128, 129, 118 P.3d 322 (2005)
31 U.S. Supreme Court 2005.
32 Log Item 41.
33 The JARPA application at section 12 denies the need for this permit. There is a conflict between
this position and the position taken by Mr. Stewart.
12
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residential to include Trend West Resort use34 and changing definitions in the
Development Agreement does not address the substance of this matter. It questions
whether the type of use associated with a Trend West Resort should be permitted on an
environmentally sensitive estuary to a salmon bearing creek. To evaluate the SSDP
application that is part of the consolidated permit application, these issues at minimum
should be addressed in light of the substance of Mr. Stewarfs letter and Mr. GaIts
decision.
As I understand it, two matters have been submitted together as a consolidated permit
application under LUPO, the proposed amendment and a substantial shoreline
development application. The master permit application references only building permits
and the SSDP. It also contains a JARPA application that is to be filed with the
Washington Department ofFish and Wildlife. That permit application has not been filed.
It is a permit required to have a complete application and as a condition to the acceptance
of the SSDP. As noted, Mr. Stewart takes the position that an NPDES Permit is required.
This remains unresolved. Also, the letter to reviewer to which the master permit
application is attached appears to take the position that the project will be prospectively
reviewed for purposes of the SSDP and JARP A under the Program and the 1994 Interim
Critical Area Ordinance. It is unclear how evaluation of the project can proceed after
approval since the results of the evaluation could change the project. The master permit
application contain maps that appear to be from or incorporate the substantial
development permit site plan, the substantial development permit stormwater
management plan, the substantial development permit water and sewer plan, the
substantial development permit building elevations, and the substantial development
permit landscape plan. What is not clear is whether all or any of these plans constitutes a
binding site plan or like instrument that when recorded will bind the project for purposes
ofland use other than the requirements of the SSDP. What is clear is that all of the land
use consents and permits other than the SSDP are not included in the consolidated permit
application.35
34
Log Item 144
The master permit application and the JARP A application as well as the notice to the public refer
to the proposed use as a time share. This description together with a definition is incorporated in the
proposed amendment itself. The problem is that the use that Mr. Helm for Trend West described and that
Mr. Galt found conflicts this definition. A time share must vest an interest, either real or personal property,
in the right to use the unit. See Amendment, Sections 1 (c) and (d). The latter provides that a timeshare
right "means a right to occupy a unit or any of several units during three or more separate time periods over
a period of at least three years". The definition is taken from RCW 64.36.010(11). The problem is that
purchasers of credits through Trend West do not have the right to use any specific unit at any specific time.
They have the rights to exchange the credits and/or cash for the use of units in resorts under agreement with
Trend West. There are admittedly more than 6,000 units in which more than 250,000 members have the
rights to exchange credits or cash for units. This is not the same as having the right to use one or more unit
for some specific time during a three year period. I further believe the definition conflicts the definition of
time share contained in the Comprehensive Plan See Comprehensive Plan, p. G-16. Here, the persons who
have the right of occasional residential use typically share in the operating expenditures, rent, and upkeep.
There is no relationship between the assessments against Trend West members and the operating
expenditures, rent and upkeep of any specific units. It is clear as Mr. Galt found that Trend West operates a
hotel and exchanges prepaid credits and cash for the right to use a room or suite. Just because the right is
generally restricted to a large pool of club members does not make it less of a hotel. As noted in the
architects correspondence with DCD on the project, the use is that of a hotel. For these reasons, even if the
35
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How then can an SSDP issue against this consolidated application? Is one to read into
the application or the proposed amendment, the JARP A permit and its conditions, the
NPDES and its conditions or the various site 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 application that cover all of the land use applications necessary to
develop the use. Here, it is clear the consolidated permit application does not accomplish
that result. That is confirmed in the applications that it covers and in the letter to
reviewer. Neither the face of the SSDP Application nor the face of the proposed
amendment to the Development Agreement contain the information necessary to permit
Jefferson County to evaluate the impact of the project required in connection with the
approval of an SSDP or associated with the Consolidated Permit Application.3? The
integration of this permit does not obtain. 38
I finally wish to include by reference prior comments I have made on this project to
Jefferson County. I wish to raise again the comment of the Jefferson County Sheriff. He
concluded that he had inadequate staff to handle the Port Ludlow MPR.39 He made the
same comment to both Ludlow Cove II and Olympic Terrace II. Mr. Berteig's conclusion
that the issue is incremental does not address the issue at all. A review of the kind of use
proposed at Trend West, the transience and lack of association of its guests with the
community, and the recent history of crime and break ins suggest that public services are
needed and must be provided contemporaneous with the development. 40
amendment were approved and were held otherwise valid, it would still not save this project which would
remain outside the ambit of the definition of "time share".
36 Jefferson County Master Shoreline Program, Sec. 6.40 states "A shoreline permit is considered the
last govemmental approval prior to construction or issuance of a building permit. If a proposal involves
other govemmental approvals, as in a rezone or subdivision approval, these other issues shall be resolved
prior to final action on a shoreline permit application."
37 LUPO Sec. 7. It is questionable that the proposal can even be considered a complete application
for purposes of LUPO considering the parts that have not been integrated therein. I do not suggest that
these parts have not been otherwise considered. Rather, it is my position that Jefferson County turned them
down. The proposed change to the Development Agreement does not resurrect them as a legal matter. It
does not place their contents before either the hearing examiner or the BoCC in connection with their
review of proposed permits and enabling legislation that purports to allow the project on the property. It
does not allow the kind of review contemplated by LUPO or the Program. See LUPO, Sections 10, 11.
38 This is admitted in the letter to reviewer that references further review under the Program and the
ICAO. Further question is also raised thereon by the divergence between Mr. Stewart's letter, Log Item 41,
and the proposal that the original Staff Report accompanying the MDNS that conflicts or dismisses Mr.
Stewart's letter or its conclusions. It seems questionable that such an MDNS could now issue in light of
Mr. Galt's decision and Mr. Stewart's letter, particularly in light of the lack of any compliance with JARPA
which may very well impose further conditions that should be considered in the consolidated process.
39 Log Item 23
40 RCW 37.70A.362; ICC l8.15.l26(1)(h) and (i) set forth requirements for concurrency and
integration in the development of public facilities and services. While these do not per se apply to the Port
Ludlow MPR because as it was approved before the adoption of the UDC, they are consistent with the
description in the Comprehensive Plan for new master planned resorts, How Port Ludlow's development
plan incorporated in the MPR Code and Development Agreement cannot be considered a new master
planned resort, particularly considering the reference to the expansion of the "small resort" in Section
1.3.12 of the Development Agreement, strains credulity . Were the existing resort adequate to meet the
definition of master planned resort, the Development Agreement and the MPR Code would have been
14
.....
....
This also reflects the requirement for master planned resorts both statutory and in
Jefferson County's own ordinance. It is not addressed. Equally important is the lack of
attention to the water and sewer system. The only assurance provided to DCD is that the
project has sufficient MERU coverage and the private utility, owned by the developer,
will hook up the project.41 But is this enough. Can anyone say the water system provides
adequate pressure when backup pwnps had to be turned on when the fire department
fought the Admiralty Condominiwn Plat fire a year and a half ago. It is clear that the
nonnal pressure in the system was not sufficient to supply water to the fire department to
fight that fire. What would have happened if no one would have been available to turn on
the back up pumps? While I do not suggest that the systems are necessarily deficient, I
do suggest that there is inadequate infonnation to show that they are sufficient and that
this infonnation should be before the Hearing Examiner and BoCC before it evaluates an
amendment to the Development Agreement and associated permit application p~orting
to allow the project and the changes in intensity of use that are associated with it. 2
The proposed amendment to the Development Agreement should be rejected. It does not
have the requisite approval of the owners. Even if it did have same, it does not meet the
requirements for amending land use approved by the Comprehensive Plan. The proposal
raises serious questions of violating the rights of the remaining landowners in the Port
Ludlow MPR in connection with its breach of the terms of the PL VC CC & Rs. Such a
violation would constitute a 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 Resort imbedded in a master planned resort that is based on the
notion of a public resort. The issues of taking, public purpose, and compensation are
nowhere addressed. The proposal continues to violate the conditions of the SSDP. The
proposal does not integrate the infonnation substantively required for its evaluation either
as an application for approval of an SSDP or as a proposed legislative action to provide
spot zoning assistance to the developer.
~ I~~
'7.:?4Jo//;- W.~
Leslie A. Powers
44 Heron Road
Port Ludlow, W A 98365
Rick Rozzell has joined in the above comments.
July~oaplpOlM ......lkY...onHJ6
unnecessary. Compare RCW 36.70A,360 an 362 and the treatment of master planned resorts in the
Comprehensive Plan at LNG 25, 26
41 Mr. Scalf confirmed this to the undersigned by email.
42 The entire nature of this
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Page 1 of 1
Powers & Therrien
Subject:
"Powers & Therrien" <powers_therrien@yvn.com>
"Barbara Nightingale" <bnightingale@co.jefferson.wa.us>
"Powers & Therrien" <powers_therrien@yvn.com>
Friday, July 21, 2006 4:22 PM
EXHIBIT A SHB Order on Motions 051706.pdf; Response on proposed amend to dev agmt
072106 FINAL.pdf
Ludlow Cove 2 - Response on Amendment to Proposed Development Agreement
From:
To:
Cc:
Sent:
Attach:
Barbara:
Please make this statement part of the log and send a copy to the hearing
. examIner.
I think I have picked up all of the log references. However, if there are items
that are not picked up as log items or exhibits, I incorporate them by
reference. Upon identification, I will be happy to send them to you.
Rick Rozzell told me that he will be joining in this letter. Please read the
letter as his statement also unless he otherwise informs you.
POWERS & THERRIEN, P.S.
3502 Tieton Drive
Yakima, W A 98902
Phone (509)453-8906
Fax (509) 453-0745
~.,c
r.\~\~ 1--' OUi
CO\\\ ~
~ft.
Les Powers
This email is covered by the Electronic Communications Privacy Act, 18
U.S.C. Section 2510-2521 and is legally privileged. This message and any
attachments hereto may contain confidential information intended only for the
use of the individual or entity named above. If you are not the intended
recipient(s), or the employee or agent responsible for delivery of this message
to the intended recipient(s), you are hereby notified that any dissemination,
distribution or copying of this email message is strictly prohibited. If you
have received this message in error, please immediately notify the sender and
delete this email from your computer. R]E(~ J8:['T}t~[JJ
#~
Page of
JUL 2 6 2006
-
JEfHR~nN COUNTY DeD
'1'(12/2006
1
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July 21, 2006
STEPHEN K. CASSEAUX, JR.
Jefferson County Hearing Examiner
c/o Barbara Nightingale, Lead Planner
Jefferson County Community Development Department
621 Sheridan
Port Townsend, W A 98368
RE: Amendment No. 1 to Port Ludlow Development Agreement
Dear Mr. Casseaux:
I own a townhome in the Port Ludlow MPR and am a resident at 44 Heron Rd., Port
Ludlow, Washington. I purchased the townhome from Port Ludlow Associates, LLC,
('PIP() in December 2003. As such, I have standing to make the comments to PLA's
proposed amendment to the development agreement entered in May, 2000, initialll
between Jefferson County and Olympic Resources (the''Development Agreement). By
assignment in 2001, PLA is successor as developer to Olympic Resources. I wish to join
the objections to the proposed amendment submitted by Ms. Elizabeth Van Zonneveld
for the Port Ludlow Village Council ('PL VC) and Ms. Moss, counsel for Mr. Lewis Hale.
I adopt by reference their comments.
I attended the workshop held by the Jefferson County Board of County Commissioners at
which PLA and Trend West, its putative assignee, presented the proposed amendment to
the Development Agreement. My comments are based on my notes and recollections,of
events at the workshop. Thereat, Mr. Helm spoke for Trend West. He recited
1. that the proposed Trend West development that would be permitted on the
Ludlow Cove II site under the proposed amendment would be economically beneficial to
Jefferson County and Ludlow Bay;
2. that it would bring more than thirty five (35) or more full time benefit
carrying jobs;
3. that the ownership 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 units shared by two hundred fifty thousand (250,000) vacation
club members;
4. that Trend West sold perpetual, annually renewable vacation rights
evidenced by points issued by the association to club members;2
: ~~": =;",~~tb~ ::;e ro the bosie Moly,;, oontamed h"em, Trend W"t by R E (' ElViE D
admission sells vacation points entitling the owner to apply to use six thousand units owned by Trend. C'! n 2l'\!'\C
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5. that club members could trade the points and or cash to stay in any of the
vacation accommodations managed by Trend West through the arrangement;
6. that the points required scheduling and were adjusted for the value of the
vacation property selected by the owner or user of the points such that the owner or user
might also pay for all or a portion of the use with cash;
7. that there is no ownership nexus or use right between any club member
and any points that club member might own and any particular vacation facility;
8. that on average the club members or other persons using their points
stayed three days at a time in the vacation units;
9. that the vacation facilities had minimal recreational amenities and relied
on recreational amenities to be provided by"partnerships'with local businesses;
10. that such'partnerships'took the form of coupon books providing discount
use of the recreational amenities to club members;
11. that no hotel taxes were paid to local government on the exchange of the
points and other consideration by members and persons using members' points for the use
of the vacation facilities.3
Mr. De Sa e Silva and Mr. Verrue, for PLA represented:
1. that if the Trend West project is approved, PLA will donate and apply the
proceeds from the sale of the land to Trend West in the amount of $3,600,000 to the
construction of a golf club facility;
2. that the Trend West project would bring additional consumers into Port
Ludlow that will justify the development of a grocery store and other missing retail
facilities;
3. that PLA is currently losing money on the operation of the golf course (the
'Golf Course), the Harbormaster Restaurant (the'Restaurant)and the Inn at Ludlow Bay
with its restaurant (the''Inrl);
West's affiliated not for profit association (the "Association"). The Association provides the opportunity to
use the units through an allocation system operated by Trend West. Trend West admits that the members
do not own interests in time or fee in any particular vacation unit, the legal requirement of a time share
under Washington law. See RCW 64.36.010(11).
3 A member of the BoCC asked whether the Association paid room tax. Mr. Helm denied that it
did. Please consider that the Association members buy their memberships for cash, t he memberships
entitle the members to use the units, and Jefferson County does not see this as identical to room rent subject
to taxes: Trend West is a private hotel that accepts pOoints or cash for rooms. Why woul~ t4~ c.~,~,!l,fO~, .' T
collect lts tax? ire,f' fl-;' fI f4. 1\ 'Ei ...j D'
Jil '~ ',Ll ".~. 1.A \ ..
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4. that PLA anticipated the demand from the Trend West guests would make
these economic ventures viable and profitable;
5. that without Trend West, PLA would not continue to absorb the
operational losses associated with the Golf Course, the Inn, and the Restaurant;
6. PLA and Trend West will obtain substantial shoreline development
permits for the project as a result of the anticipated reconsideration of the Shoreline
Hearing Boards adverse determination on the SSDP application;4
7. PLA and Trend West will prevail in their LUPA Petition of Appellate
Hearing Examiner Galfs denial of Hearing Examiner Berteig's approval of the Trend West
project under existing zoning;
8. Those that oppose the Trend West project are isolated property owners,
largely owning vacation properties, in the Port Ludlow MPR that do not reflect the best
interests of the Port Ludlow community.
Now this makes a very tidy and attractive proposition to Jefferson County, not itself
endowed with major sources of tax revenue. If Jefferson County just bends the rules to
permit Trend West on property zoned under the Comprehensive Plan as single family
detached with a maximum density of four residential units to the acre to classify Trend
West as a multifamily residential use specially permitted by amendment to the
Development Agreement on the Ludlow Cove II Plat, then Jefferson County and Ludlow
Bay will reap significant economic benefits as well as additional retail opportunities to be
provided by as yet undisclosed merchants waiting in the wings to exploit the Trend West
opportunity and by saving from closure recreational facilities currently operated at loss
by PLA. But for a few"troublemakers'ofwhich I am one, the economic, recreational, and
retail interests of the Ludlow Bay community would be advanced by new jobs, new retail
facilities and a new golf club facility. Those few troublemakers were able to persuade
ARE Galt and the SHB of the validity of their erroneous positions contrary to the
interests of the Ludlow Bay community, errors that will ultimately be recognized and
resolved in favor ofPLA and Trend West.
There are several problems with this story. First and most important, as shown by Ms.
Moss, the proposal is illegal and requires Jefferson County to ignore its Comprehensive
Plan, the development regulation adopted by Jefferson County consistent with the
Comprehensive Plan to address the development of a master planned resort from the
small resort located in the Port Ludlow MPR, vested land use rights applicable to the Port
Ludlow MPR and enjoyed as assignees by more than two thousand residents or
residential unit owners and rights those same owners hold in covenants, conditions, and
restrictions applicable to the Port Ludlow MPR as a whole, vesting architectural and legal
The Shoreline Hearing Board ("SHB") opinion issued. It held that the SSDP Application had not
been approved by final action, that it had no jurisdiction as a result, and that the matter is remanded to
Je~e~o~ County for approval or denial und~r its land use protocol. ~. .De .Sa e Silva may h~",~be,~", ["'7f71f,' "~ 7T'c>'
optnmstic about the results of the SHB heanng. A copy of the final opmlOn 1S attached hereto,ij.s; xJrl~1't A.IL,,)l 'V i,'"
;i!- ',-,:, ' ,,/.1 '-- ..'_i...L')
4
3
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JHHRSUN COUNTY OLD
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review authority over new plats developed within the Port Ludlow MPR after May, 2000,
including Ludlow Cove II.
Second, to the extent it provides for additional amenities, particularly the golf club, it
ignores both the fact that the facility has been promised by PLA for more than four years,
long before Trend West appeared on thescene, and that Trend West cannot cure the lack
of viability of a golf club that contains about two hundred members, only about a third of
the number needed economically to support a golf club and its related amenities. All that
Trend West provide is green fees. That does not pay for infrastructure or its
maintenance.
Third, it does not deal with the reality that other than the Golf Club, the Restaurant, the
Inn, and the Marina, all run by PLA, there are no public recreational amenities that are
available to members of Trend West. The marina provides a few kayaks for rent. It has
no sail boats, contrary to the view expressed by Mr. Helm. There are no businesses that
want to establish recreational support facilities in the hope that a one hundred twenty unit
private hotel will provide sufficient demand to maintain them. The only public beaches
in the MPR are located near the hotel and the townhome plat. There is a trail system.
However, the rights to it are owned and operated through the PL VC and is not technically
available to Trend West that will not share amenities with the PL VC. The two major
recreational facilities, the Bay Club and the Beach Club are private and not open to Trend
West guests. The"minimal recreational amenities'ofthe Trend West facility will not be
open to the public, including the residents of the Port Ludlow MPR.
Finally, as ARE Galt determined in the final action of Jefferson County and as the SHB
determined as to the SSDP, the project is not legal under either the zoning law in effect in
1995 when Ludlow Cove II was proposed6 or 2000 when PLA's predecessor agreed that
Development Agreement, Sec. 4.2.2, first sentence. That provision permits the developer to
assign interests to persons who will "own, develop and/or occupy portions of the Pope Property." The
developer reserved the right to assign interests in the Development Agreement or Pope Property to such
persons. See Development Agreement, Sec. 4.2.2, second sentence. The provision of the Development
Agreement denying third party beneficiaries excepts therefrom "successors, successors in title and assigns".
Development Agreement Sec. 4.13. The reference to successors in title and the reference to "Pope
Property" in connection with "successors" and "assigns" make it clear that the exception to third party
beneficiary status is not limited to assigns of the Development Agreement itself. Persons who purchased
property from the developers or their assigns are also assigns or successors in title and accordingly have
rights and standing under the Development Agreement.
6 Under the ruGA that was declared invalid in September, 1995, Ludlow Cove II was zoned
multifamily residential. HE Berteig approved the Ludlow Cove II Plat in the opinion issued July, 2002.
See ARE 2 Log Item la. Therein, he erroneously characterized Ludlow Cove II as zoned single family
residential as vested in 1995 that permitted a multifamily conditional use. The opinion is additionally
flawed by its failure to trace the plat application. Had this been done, it would have been clear that the
application in fact lapsed in 1997. The opinion is finally flawed because it failed to deal with the effect of
the Development Agreement that expressly recognizes that Ludlow Cove II is zoned single family
detached. PLA is a party to the Development Agreement as successor to Olympic Resources and cannot
well say that it did not know that it acquired a property zoned other than as provided in the Development
Agreement. In short, by entering the Development Agreement PLA voluntarily and knowingly
relinquished any right in vesting that it might have enjoyed based on the proposal of the plat in l~. ~ ('" ; "
further review of Mr. Berteig's opinion reveals that he selectively applied land use law at the reqj@~_ ~i \'>.. jE r\TlE D
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Ludlow Cove II would be developed as zoned under the Comprehensive Plan rather than
as zoned in 1995.7 AHE Galt based his decision on the transient nature of the members
or guests that visit Trend West resorts. As admitted by Mr. Helm, the stay averages three
(3) days. Transient residential use is use less than thirty (30) days in duration.8 In 1995,
the applicable zoning code defined transient use as use of less than thirty days in
duration. Such use became commercial if accompanied by an exchange of consideration
for the use. Transient use included'}esortS' or'hotels': The issue is even less doubtful
PLA, here applying 1995 law and there applying the UDC where PLA was benefited. Under East County
Reclamation Co. v. Biomse!!, 125 Wn.App. 432, 436, 437,105 P.3d 94 (2005), the Court has held that
vested rights in a specific landuse may not be selectively waived. The effect of such a selective waiver is to
waive all of the rights claimed under the original vesting thereby confirming what is evident from PLA' s
execution of the Development Agreement, that it waived the rights to vest the property under land use law
in effect in 1995 and elected to have the law in effect in 2000 apply. AIlE Galt was aware of the issue. He
remanded for a determination of the proper zoning upon which a further analysis of allowable conditional
use could be based. Mr. Berteig responded by reiterating his original view. As Mr. De Sa e Silva admitted
at the workshop, Mr. Berteig's response has no legal effect as long as the LUPA Petition remains pending
and unresolved. Mr. Berteig gave notice of recusal on July 14, 2006. Mr. De Sa e Silva moved that Mr.
Berteig reverse his recusal. Mr. Berteig did so on July 17, 2006. The undersigned neither accept Mr.
Berteig's reversal nor waive their rights to object to any order or decision entered by Mr. Berteig with
respect to the Port Ludlow MPR on the basis of the legal effect of the recusal and .the justification thereof
set forth in Mr. Berteig's correspondence that clearly show appearance offairness is here an issue.
7 Vesting is a voluntary relinquishment of a known right. It strains credulity to think that Olympic
Resources did not know of its rights under the ruGA or know that it was relinquishing those rights by
signing the Development Agreement which gave it twenty years of vesting protection. What makes this the
more clear is that the Development Agreement carved out the one plat, the Townhome Plat that was
partially developed at the time and vested it as of 1994 when the preliminary plat application was initially
filed. See Development Agreement, Sec. 3.13 and 3.15. See Irvin Water Dist. No.6 v. Jackson
Partnership. 109 Wn.App. 113, 125,34 P.3d 840 (2001) and Cent. Wash. Bank v. Mendelson-Zeller. Inc..
113 Wn.2d 346,353,779 P.2d 697 (1989); Ward v. Richards & Rossano. Inc., 51 Wn.App. 423, 434, 754
P.2d 120 (1988).
8 JCC 18.10.200 defining transient residences under the Uniform Development Code, Article 18,
JCC.
9 Jefferson County Ordinance 09-0801-94, the Jefferson County Zoning Code ("the "Zoning
Code"), Sec. 3.94. Read together, transient use is use ofless than thirty days. That use becomes transient
accommodations if accompanied by a commercial nexus, that is exchange of consideration. As AIlE Galt
recognized, the test is not whether the proposed use is or is not transient accommodations but whether the
proposed use is either single family or multifamily residential use. Assuming, arguendo, HE Berteig's
argument, multifamily residential still requires that the unit be a dwelling unit, that is a unit "physically
arranged so as to create an independent housekeeping establishment establishment for occupancy by one
family..." See Zoning Code Sec. 3.32. Both single family and multifamily residences are built around
dwelling units. See Zoning Code, Sec. 3.89 and 3.69. Transient accommodations are characterized by a
commercial nexus. See Zoning Code Sec. 3.21. However, to meet the condition of single family or
multifamily residential use, a dwelling unit, that is a unit designed for occupancy and housekeeping by a
single family is required. Here, the use proposed by Trend West and PLA must be characterized as
transient accommodations. This follows because the members or guests use points, purchased with cash, in
exchange for the transient use of an accommodation. AIlE Galt recognized this reality. He recognized the
record that showed, as Mr. Helm admits, the members buy and exchange permanent vacation points for use
of units on a short term basis; Nothing in the Zoning Code requires that the consideration be paid in cash to
meet the "commercial" classification. See AIlE Galt Opinion of December 7,2005, pp. 20-22. Assuming
that PLA has waived application of 1995 land use by executing the Development Agreement, the property
is zo~ed single f~~ly de~che~ with a maximw:n: residential density of four units per ~cre which I[]> ref ,(~' IEi' jf \~ ! 1~'1 'lD'
speCifically prohibIts multifanuly use as a conditional use. See Jefferson County Ordmance 08-100~9Qfl ' ), lL \~ l.C.:J 1
Sec. 3.103; Development Agreement, Appendix 3.
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under the MPR Code that is applicable to Ludlow Cove II. Referring to the
Comprehensive Plan that shows the Ludlow Cove IT Plat zoned single family detached,
the Development Agreement adopting such zoning, and the MPR Code executing same,
there is no question but that the Ludlow Cove II Plat is zoned single family residential
with a maximum density of four (4) residences per acre and that conditional uses do not
include even multifamily residential use, a classification that would apply under the
proposed amendment to the Development Agreement. Neither the amendment to
residential density nor the use proposed therein comply with the MPR Code or the
Comprehensive Plan.
Mr. De Sa e Silvis description of the current state of litigation and administrative appeals
is not accurate. With one other appellant, the undersigned appealed the approval of the
SSDP by Jefferson County without permitting an administrative appeal of the plenary
decision of HE Berteig. The SHB concluded, consistent with the petition, that the SSDP
approved by the DOE in response to the filed application was invalid because the
approval by Jefferson County was not by final decision thereof. Petitioners and
Respondents agreed to request dismissal of the petition upon final order by the SHB
incorporating the conclusion of the preceding sentence that was included in the SHB
memorandum decision. The SHB embodied that conclusion, dismissed the petition for
lack of jurisdiction, and remanded the mat+..er to Jefferson County for final action. This
decision is consistent with the requests of Petitioners and Respondents; Respondents
complaint is that the SHB did not treat the SSDP as validly issued in its remand. It is
important to distinguish between Mr. De Sa e Silvis rendition that mischaracterizes the
facts and the description set forth in this paragraph that shows the actual response of the
SHB.10 What is important is that the SHB recognized that Jefferson County ignored its
own rules, violated due process rights of interested parties by depriving them of the right
of administrative appeal,.and treated the SSDP application approved by Jefferson County
as a nullity consistent with its findings.
Similarly, Mr. De Sa e Silva mischaracterizes the current judicial status of Ludlow Cove
II. Mr. Berteig's decision approving the decision ofDCD Staff to approve PLA's
characterization of a plat zoned single family residential as compatible with the
development of a Trend West resort was reversed on administrative appeal by the
undersigned and Messrs. Lewis Hale and Rick Rozzell to the ARE. ARE Galt decided
that the record limited to that admitted by HE Berteig and the law showed the proposed
use to be transient accommodations, a use precluded either under the Zoning Code or the
MPR Code for either single family or multifamily residential plats. He reversed HE
Berteig and remanded the matter for a decision on the issue as to proper zoning and
conditional use. This is the final decision of Jefferson County. PLA and Trend West
filed a petition of AHE Galfs 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. Galfs decision. A fair appraisal of the situation is that PLA and Trend West
do not believe they will prevail in Court and are delaying the issue to seek a legislative
solution to the pending judicial issues.
10
See SHB Final Order, Exhibits A hereto.
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To summarize, the law at the time the Ludlow Cove IT Plat application was filed and the
law otherwise in effect in the Ludlow Bay MPR, both prohibit the development of
Ludlow Cove IT as a Trend West Resort. That conclusion is supported by ARE Galfs
decision that the Trend West Resort is not a permitted use of the Ludlow Cove IT Plat.
This is the [mal action of Jefferson County. The SHB decided, without regard to the
result ofPLA's motion for reconsideration, that Jefferson County had not properly
approved the SSDP for Ludlow Cove IT and that the SSDP was not validly issued by the
DOE as a result. The only logical result is that the application must be returned to
Jefferson County properly to approve or deny the SSDP. This is exactly the result that
the SHB reached. Mr. De Sa e Silvas representation to the contrary mischaracterizes the
facts. In short, the reason that the proposed amendment to the Development Plan is
before the Jefferson County Board of County Commissioners (the''BoCC) is clearly that
PLA and Trend West do not believe they are legally on good ground to urge that a Trend
West Resort is a use consistent with single family residential zoning either in 1995 or
2000.
What PLA and Trend West propose is that zoning otherwise applicable to Ludlow Cove
IT under the Comprehensive Plan, MPR Code or Development Agreement can be
modified by modifying the Development Agreement. That proposal conflicts with the
procedures and purposes applicable to modifications of zoning or law that protects it. It
conflicts the notion of vesting as it protects those who purchased from Olympic
Resources or PLA. It conflicts with CC & Rs in favor of the PLVC that are applicable to
the development of Ludlow Cove IT (the"PLVC CC & RS)I1. Whether or not it improves
economic conditions in the Ludlow Bay MPR, it is an illegal proposal that cannot be
resurrected by a legerdemain converting a quasi judicial review to a legislative act. This
is a classic case of rent seeking. The importance of the matter to PLA and Trend West is
vastly greater than the impact thereof on any single resident of the Ludlow Bay MPR.
The muted response of the residents tends to be overcome by the strident demands of the
developer. What the HE must do is filter the noise to determine the legal and factual
positions of the parties and the true nature of their requests.
A review of the statutory authority for development agreements makes it absolutely clear
that a development aweement is entered to execute a policy set forth in the
comprehensive plan. 2 The same requirement applies to development regulations which
regulate particular aspects of comprehensive plans. 13 . This requires that development
agreements be both consistent with the comprehensive plan providing for them and the
development regulations regulating them. A development agreement implements the
policy of the comprehensive plan and the regulation imposed by the development
regulation. The Development Agreement is a development agreement,14 the MPR Code
See Exhibit B (Barbara Nightingale at DCD has confirmed this as part of record already).
RCW 36.70A.130(1)(d).
RCW 36.70B.170(l), last sentence.
14. Resolution No. 42-00, Findings 4,5; Development Agreement, Sec. 1.3.3.; MPR Coctw;j~~'\ E I\7E D
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is a development regulation15 and the Comprehensive Plan is a comprehensive plan
within the meaning of these statutes.
The requirement that the Development Regulation be consistent both with the
Comprehensive Plan and the MPR Code and that the MPR Code be consistent with the
Comprehensive Plan is recognized in the language of the Development Agreement and
MPR Code. 16 The requirement is not that the Comprehensive Plan and MPR Code be
made consistent with the Development Agreement as modified. It is clear that the
reverse is the case. The Development Agreement must remain consistent with the
Comprehensive Plan and the MPR Code. Such construction is further consistent with the
statutory requirements to which the prior paragraph and the recitals of the Development
Agreement and MPR Code refer.
Under the amendment to the Development Agreement sought by PLA and Trend West,
Trend West time share use is classified as a residential use permitted on the Ludlow Cove
II Plat and the maximum density allowed on the Ludlow Cove II Plat is modified to
nine.17 It is absolutely clear that the proposed amendment to the Development
Agreement conflicts both the MPR Code and the Comprehensive Plan. The
Comprehensive Plan zoned Ludlow Cove II single family detached with a maximum
density of four residences per acre. The MPR Code, consistent with the Comprehensive
Plan, zones Ludlow Cove II single family detached with a maximum density of four
residences per acre. Neither permit multifamily residential as a conditional use.
Accordingly, the proposed amendment must fail because it violates the use adopted by
the Comprehensive Plan and regulated under the MPR Code.1S The Development
15
MPR Code, Third Recital, states with respect to the Port Ludlow MPR as described in the
Comprehensive Plan: ''Whereas, the County is required to adopt development regulations that are
consistent with the provisions of the Comprehensive Plan".
16 Development Agreement, Sec. 1.3.9-1.3.11,1.3.13; MPR Code, Third and Eighth Recital.
17 The Proposed Amendment takes the position that the maximum density is currently sixteen, the
maximum density permitted multifamily residential in 1995, when the application for the subject plat was
initially submitted. That conclusion is not presently warranted. ARE Galt remanded to HE Berteig to
decide how Ludlow Cove IT is actually zoned. There are several possibilities. Under the 1995 IUGA, the
property is zoned multifamily residential. Under HE Berteig's 2002 decision, the property is treated as
zoned single family residential with multifamily residential as a permitted conditional use, again based on
vesting ofland use in 1995. Under the Comprehensive Plan, the Development Agreement, and the MPR
Code, the property is zoned single family detached. The maximum permitted density is four residences per
acre. Multifamily residential is not a conditional use. See MPR Code, Sec. 3.102, 3.103, Schedule 1 to
Development Agreement; Port Ludlow MPR Land Use Map(recordable version of August 28, 1998)
Comprehensive Plan map, Exhibit 3 to Development Agreement. Development Agreement Sec. 4.7
incorporates exhibits and schedules into the Development Agreement by reference as contract provisions.
The developer agreed to the zoning provided by the MPR Code. Seventh Recital to MPR Code.
Accordingly it is possible to view the allowed density as either four or sixteen depending upon the results
ofPLA's and Trend West's LUPA Petition of AHE Galt's decision. Until there is a disposition of the
LUP A Petition, as Mr. De Sa e Silva admitted at the BoCC workshop, HE Berteig's opinion on remand as
to zoning cannot issue. This follows because the LUPA Petition covers all of ARE Galt's decision,
including the remand. Thus, it is not accurate to state that the amendment reduces permitted density on
Ludlow Cove II from sixteen to nine. If adopted, it may have the effect of increasing same frgm four to
nine.
18 Development Agreement Sec. 4.6 provides for amendment. It requires written consent ~~
County and Pope. The County Commissioners must approve the amendment by resolution or or~EC EIVE, 1[\
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Agreemenfs terms, either initially adopted or subsequently adopted by amendment cannot
have an effect of conflicting 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 may be affected through a modification of the Development
Agreement is JCC 18.40.060(5).19 While the language read without the parenthetical
might suggest that a development agreement provision permitting land use trumps a
development regulation included in the unified development code, that reading fails.
First, the inconsistency permitted is between the development agreement and the unified
development code not between the development agreement and the Comprehensive Plan.
Second, the basis for permitting inconsistency between the development agreement and
the unified development code as to master planned resorts is that a'hlaster planned resort
requires a site-specific Comprehensive Plan amendment'. This is exactly the point. For a
development agreement to be amended so as to conflict with a Comprehensive Plan, the
modification must be approved as"a 'site-specific' Comprehensive Plan amendmene'
Because language of an ordinance cannot be ignored, the reading of JCC 18.40.860(5)
proposed by PLA and Trend West must be rejected.2o
The process by which PLA and Trend West seek to effect''a'site specific' Comprehensive
Plan amendmenf'is by amending the development agreement. The protocol applicable to
such an amendment is limited to notice to the community and a public hearing before the
BoCC. The protocol to amend the Comprehensive Plan is more formal. Amendments
and updates to a comprehensive plan may by statute be considered no more frequently
than annually.21 In Jefferson County, the deadline is generally March l8t for submission
of proposed amendments. I understand it was extended to Aprill 8t in 2006. Further,
proposed amendments to the Comprehensive Plan must be submitted to the State for
review at least sixty (60) days prior to their proposal to the County. PLA and Trend West
after notice to the public and a public hearing. Nowhere is there any suggestion that the amendment may
conflict the Comprehensive Plan or MPR Code both of which, as noted above, are recognized as statutorily
binding.
19 It states:
Consistency with Unified Development Code. The development standards and conditions set
forth in a development agreement shall be consistent with applicable development regulations set
forth in the Unified Development Code, except in the case of a master planned resort (which
requires a site-specific Comprehensive Plan amendment), where adopted standards may be
modified by the development standards contained in the agreement, so long as all project impacts
have been adequately mitigated....Ord. 2-02 Sec. 1; Ord.7-01 Sec. 2 (Exh. B); Ord. 11-00 Sec.
8.11(2).
Sprint Spectrum, L.P.lSprint PCS v. City of Seattle, 131 Wn.App. 339,346,127 P.3d 755 (2006);
Puyallup v. Pacific Northwest Bell Tel. Co., 98 Wn.2d 443, 448, 656 P.2d 1035 (1982); Premera v.
Kreidler, Insurance Commissioner for the State of Washington, 131 P.3d 930, 937,938 (2006); King
County v. Central Puget Sound Growth Management Hearings Boarg, 142 Wn.2d 543, 560,14 P.3d 133
(2000); Restaurant Development, Inc. v. Cananwill, Inc., 150 Wn.2d 674,686, m 80 P.3d 598 (2003)
20
21 RCW 36.70A.130(2)(a).
RECEIVED
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failed to file for an amendment to the Comprehensive Plan or even to notify the State, a
condition for such filing. Rather than wait another year, they filed this proposed
amendment to the Development Agreement. The public purpose served by the limitation
on consideration of amendments to a comprehensive plan is clearly the need to encourage
public participation in the process.22 Permitting amendments to proceed piecemeal
throughout the year makes it virtually impossible for potentially interested parties to
obtain effective notice and keep themselves informed ofland use changes contemplated
by Jefferson County or a developer. The Legislature was sensitive to the need to
consolidate and provide adequate notice and review opportunities to the public. That
policy would be defeated by a protocol limited to notice and a hearing before the BoCC
as provided for amendments to the Development Agreement.
It is questionable whether PLA has followed the requirements of the Development
Agreement in seeking an amendment of its terms. The Development Agreement
provides: 'The Agreement shall not be amended without the express written approval of
the County and pope (or its successors, successor in title and assigns with respect to the
property in which they have an interestr'.Several issues arise. First, who must sign the
consent. Pope is not the owner of property within the Port Ludlow MPR. Its rights have
been sold or assigned. However, its assignees in title include notonly PLA but all
persons who have purchased property in the Port Ludlow MPR, at least after May, 2000.
The language in the parenthetical requires not signature not only of the successor,
apparently the successor under th e contract, but also the successor in title, a concept that
includes all subsequent purchasers, and assigns, a concept that could include both assigns
in contract and title. The term "assigns' clearly includes persons who acquire by''sale and
assignment portions of the Pope Property. . .who will own, develop and/or occupy
portions of the Pope Property and buildings thereon:Z3 This language makes clear
reference to the Pope Property and portions thereof. The Pope Property is the 1,200 acres
made subject to the Port Ludlow MPR under the Development Agreement.24 Thus, to the
extent any such person has an interest in"the propertY' such persorrs written consent is
required. The second question is the identity of the propertY'. Here, the underlying
concept Pope Property includes the 1,200 acres made subject to the agreement. When the
Development Agreement was entered and recorded, the developer recorded a set of CC &
Rs that vest architectural and legal review authority over all of the Pope Property as a
condition to the development of plats, subdivisions, and other land use requiring public
permits in the Port Ludlow MPR.25 The protections embodied in the PL ves CC & Rs
22
23
RCW 36.70A.140.
Development Agreement, Sec. 4.2.2, first sentence.
Development Agreement, Sec. 2.1 and Exhibit 1.
Port Ludlow Master Planned Resort Master Declaration of Covenants, Conditions, and
Restrictions dated August 4, 2000 and recorded under Jefferson County Auditor's File Number 435975 on
August 4, 2000, Exhibit B hereto (Barbara Nightingale at DCD has confirmed this as part of record
already), Section 2,5; and Exhibit C hereto (Barbara Nightingale at DCD has confirmed this as part of
record already). Specifically, Exhibit C provides:
24
2S
All development within the MPR zones is subject to Jefferson County regulations including the
Zoning Ordinance (the MPR Code). A description of the permitted land uses, densities and design
guidelines for each MPR zone are embodied in Jefferson County development reguIRnn'e~1H' 11 TJE D
Port Ludlow Master Planned Resort, Ordinance No. 08-1004-00. Jf'\ JI~ ." Ad IY
.,
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are granted for the benefit and protection of all of the Pope Property. A change in the
development standards applicable to any of the Pope Property from that governing at the
time of the Development Agreement affects all of the Pope Property and not just the
parcel subject to the proposed change. This is the basis for subjecting each division in
the Port Ludlow MPR to review by the PL VC acting as an ARC as a condition to the
solicitation of governmental permits allowing for the proposed use. The CC & Rs are a
property right included in the Pope Property that is held through the PL VC by all owners
therein.
Based upon this interest and duty, the PLVC has submitted a comment on the proposed
amendment calling to auestion the effect thereof on land use in the Port Ludlow MPR
and Jefferson County.2 That letter cautions the BoCC not to adopt a land use change by
operation of a modification to the Development Agreement. It is clear that the letter
advises Jefferson County that at not all successors, successors in title, or assigns to the
Pope Property that have an interest in Ludlow Cove II have signed a written approval of
the proposed amendment.
Whether the action of the PL VC is seen as unique to it under the PL VC CC & Rs or as
representative of the residents on the Pope Property, the effect of the action is to raise the
issue whether PLA and Trend West have the written consent of all successors, successors
in title or assigns as required by the Development Agreement. Certainly, under the
definition contained in the Development Agreement, PLA is not the only successor,
successor in title, or assign of Pope. How then is the BoCC permitted to consider the
PLA proposal until it provides the requisite executed consents of all of the persons who
fall within the class of successors, successors in title, and assigns? The answer is clear,
the application is defective because it does not meet the four comers of the requirements
The property is zoned single family detached. Section IA of the PL VC CC & Rs provides:
there are three separate residential zones within the MPR: Single Family, Single Family Tracts
and Multi-Family. Residential development will be in enclaves or clusters to avoid sprawl;
buffered from primary roadways; designed to maintain the existing character, minimizing
roadways, paving and other impervious surfaces; and connected to other areas within the MPR by
pathways and trails.
A review of the substantive proposal reveals that the italicized requirements are not and cannot be met. In
the proposal, Trend West has its own trails. While it may permit trail access to the PL VC trail through the
property, it is not located where it should be, along Ludlow Bay. Moreover, Trend West refused the
demand of the PL VC to subject the project to common CC & R requirements applicable generally that
assure the maintenance of existing character and consistency in design and construction. Because the
proposed development is a private resort that proposes to use the facilities of a public resort, the master
planned resort, it is, in effect, imbedded in the Port Ludlow MPR without being integrated therein. This
violates RCW 36.70A.362 that requires that the entire master planned resort be developed as an integrated
whole. It is clear that Pope Resources and PLA intended that Ludlow Cove n be subject to the zoning and
land use requirements contained in the Comprehensive Plan and the MPR Code, the applicable
development regulation. TO) .1[~..f("'" E T
26 See letter from PL VC to Jefferson County of July 17, 2006, Exhibit D hereto (Barbara ~~ 1, i K \ EIO
at DCD has confirmed this as part of record already). .
11
JEFFERSON COUNTY DCD
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to amend the Development Agreement under its own terms.27 This is not a question of
enforcing CC & Rs; it is rather a condition to the approval of an amendment to the
Development Agreement that is binding upon Jefferson County and PLA as well as all
other persons who have become parties thereto as successors, successors in title, and
aSSIgns.
As a legal proposition, Jefferson County cannot participate in the proposed amendment to
the Development Agreement. It conflicts the requirements of the PL VC CC & R that the
subject property be developed in accordance with the MPR Code as single family
detached residences.28 Every resident of the Port Ludlow MPR is a beneficiary of the
PLVC CC & Rs. The PLVC 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 identified as part of the Port Ludlow MPR and is subject to the PL VC
CC & Rs. The amendment of the Development Agreement proposed by PLA and Trend
West conflicts the PLVC CC & Rs directly. Because the CC & Rs are an interest in
property, Jefferson County cannot approve an action in direct conflict with the PL VC CC
& Rs without compensation and then only for a public purpose.30 The rights of the
beneficiaries under the PL VC CC & Rs are real property rights that are accorded
protected status under the Growth Management Act and under the Washington
Constitution. Here, Jefferson County has made no offer of compensation, has not
proceeded to condemn the right, and offers no public purpose. In the aftermath ofKelo
v. New London,31 it is clear that assistance to the developer or increased tax base is not a
sufficient basis to conclude the public purpose test has been met.
The SSDP Application should be rejected based on the view expressed by Mr. Jeffery
Stewart.32 In addition to zoning, Mr. Stewart questioned whether the trail system as
proposed met the requirement of the Program in that it did not access Ludlow Bay.
Currently the plan has not cured same. Mr. Stewarfs letter identified other issues
involving erosion and land use that have not been fully addressed. Mr. Stewart identifies
a National Pollution Discharge Elimination System ('NPDES) Permit that apparently had
and to my knowledge has not been applied for or granted?3 Mr. Stewart raises issues
surrounding the increased intensity of use associated with transient housing compared to
the use that would have been permitted if Ludlow Cove II were developed as detached
single family housing as zoned under the MPR Code. Mr. Berteig's interpretation of
27
Moreover, the language of Development Agreement Sec. 4.13, denying third party beneficiary
status makes the same "successors, successors in title, and assigns" a party of the ultimate assignor thereof.
Not only is the consent of the residents who hold title from Pope Resources or PLA required, but they are
parties to the very agreement that PLA seeks to modify without their consent. Their party status confers
direct contract privity between such residents and Jefferson County. PLA is no more than another assign
when viewed under the language of the Development Agreement relative to ''party'' status.
28 See footnote 25, supra.
29 See footnote 25, supra.
30 Viking Properties v. Holm, 155 Wn.2d 112, 128, 129, 118 P.3d 322 (2005)
31 U.S. Supreme Court 2005.
32 Log Item 41. 10 1G~ ((~, Ie' 1r \{7V D
33 The JARP A application at section 12 denies the need for this permit. There is a conflic.! ~tit~ii 'f':11L \0/ J~ ., /
this position and the position taken by Mr. Stewart.
12
JHHRSON COUlHY Den
e
e
residential to include Trend West Resort use34 and changing definitions in the
Development Agreement does not address the substance of this matter. It questions
whether the type of use associated with a Trend West Resort should be permitted on an
environmentally sensitive estuary to a salmon bearing creek. To evaluate the SSDP
application that is part of the consolidated permit application, these issues at minimum
should be addressed in light of the substance of Mr. Stewarfs letter and Mr. Galfs
decision.
As I understand it, two matters have been submitted together as a consolidated permit
application under LUPO, the proposed amendment and a substantial shoreline
development application. The master permit application references only building permits
and the SSDP. It also contains a JARP A application that is to be filed with the
Washington Department ofFish and Wildlife. That permit application has not been filed.
It is a permit required to have a complete application and as a condition to the acceptance
of the SSDP. As noted, Mr. Stewart takes the position that an NPDES Permit is required.
This remains unresolved. Also, ' the letter to reviewer to which the master permit
application is attached appears to take the position that the project will be prospectively
reviewed for purposes of the SSDP and JARP A under the Program and the 1994 Interim
Critical Area Ordinance. It is unclear how evaluation of the project can proceed after
approval since the results of the evaluation could change the project. The master permit
application contain maps that appear to be from or incorporate the substantial
development permit site plan, the substantial development permit stormwater
management plan, the substantial development permit water and sewer plan, the
substantial development permit building elevations, and the substantial development
permit landscape plan. What is not clear is whether all or any of these plans constitutes a
binding site plan or like instrument that when recorded will bind the project for purposes
ofland use other than the requirements of the SSDP. What is clear is that all of the land
use consents and permits other than the SSDP are not included in the consolidated permit
application.35
34
3S
Log Item 144
The master permit application and the JARP A application as well as the notice to the public refer
to the proposed use as a time share. This description together with a defmition is incorporated in the
proposed amendment itself. The problem is that the use that Mr. Helm for Trend West described and that
Mr. Galt found conflicts this definition. A time share must vest an interest, either real or personal property,
in the right to use the unit. See Amendment, Sections 1 ( c) and (d). The latter provides that a timeshare
right "means a right to occupy a unit or any of several units during three or more separate time periods over
a period of at least three years". The definition is taken from RCW 64.36.010(11). The problem is that
purchasers of credits through Trend West do not have the right to use any specific unit at any specific time.
They have the rights to exchange the credits and/or cash for the use of units in resorts under agreement with
Trend West. There are admittedly more than 6,000 units in which more than 250,000 members have the
rights to exchange credits or cash for units. This is not the same as having the right to use one or more unit
for some specific time during a three year period. 1 further believe the definition conflicts the definition of
time share contained in the Comprehensive Plan See Comprehensive Plan, p. G-16. Here, the persons who
have the right of occasional residential use typically share in the operating expenditures, rent, and upkeep.
There is no relationship between the assessments against Trend West members and the operating
expenditures, rent and upkeep of any specific units. It is clear as Mr. Galt found that Trend West operates a
hotel and exchanges prepaid credits and cash for the right to use a room or suite. Just because the right is
generally restricted to a large pool of club members does not make it less of a hotel. As noted in the
architects correspondence with DCD on the project, the use is that of a hotel. For these re ','~, ~., ,." the
JC,l'EI\1-DO' "',
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13
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JHflRSON COUNr/ OLU
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How then can an SSDP issue against this consolidated application? Is one to read into
the application or the proposed amendment, the JARP A permit and its conditions, the
NPDES and its conditions or the various site 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 application that cover all of the land use applications necessary to
develop the use. Here, it is clear the consolidated permit application does not accomplish
that result. That is confIrmed in the applications that it covers and in the letter to
reviewer. Neither the face of the SSDP Application nor the face of the proposed
amendment to the Development Agreement contain the information necessary to permit
Jefferson County to evaluate the impact of the project required in connection with the
approval of an SSDP or associated with the Consolidated Permit Application.37 The
integration of this permit does not obtain: 38
I finally wish to include by reference prior comments I have made on this project to
Jefferson County. I wish to raise again the comment of the Jefferson County Sheriff. He
concluded that he had inadequate staff to handle the Port Ludlow MPR.39 He made the
same comment to both Ludlow Cove II and Olympic Terrace II. Mr. Berteig's conclusion
that the issue is incremental does not address the issue at all. A review of the kind of use
proposed at Trend W est, the transience and lack of association of its guests with the
community, and the recent history of crime and break ins suggest that public services are
needed and ' must be provided contemporaneous with the development.4o
amendment were approved and were held otherwise valid, it would still not save this project which would
remain outside the ambit of the definition of "time share".
36 Jefferson County Master Shoreline Program, Sec. 6.40 states "A shoreline permit is considered the
last governmental approval prior to construction or issuance of a building permit. If a proposal involves
other governmental approvals, as in a rezone or subdivision approval, these other issues shall be resolved
prior to fmal action on a shoreline permit application."
37 LUPO Sec. 7. It is questionable that the proposal can even be considered a complete application
for purposes of L UPO considering the parts that have not been integrated therein. I do not suggest that
these parts have not been otherwise considered; Rather, it is my position that Jefferson County turned them
down. The proposed change to the Development Agreement does not resurrect them as a legal matter. It
does not place their contents before either the hearing examiner or the BoCC in connection with their
review of proposed permits and enabling legislation that purports to allow the project on the property. It
does not allow the kind of review contemplated by LUPO or the Program. See LUPO, Sections 10, 11.
38 This is admitted in the letter to reviewer that references further review under the Program and the
lCAO. Further question is also raised thereon by the divergence between Mr. Stewart's letter, Log Item 41,
and the proposal that the original Staff Report accompanying the MDNS that conflicts or dismisses Mr.
Stewart's letter or its conclusions. It seems questionable that such an MDNS could now issue in light of
Mr. Galt's decision and Mr. Stewart's letter, particularly in light of the lack of any compliance with JARP A
which may very well impose further conditions that should be considered in the consolidated process.
39 Log Item 23
40 RCW 37.70A.362; JCC 18.15.126(l)(h) and (i) set forth requirements for concurrency and
integration in the development of public facilities and services. While these do not per se apply to the Port
Ludlow MPR because as it was approved before the adoption of the UDC, they are consistent with the
description in the Comprehensive Plan for new master planned resorts. How Port Ludlow's development
plan incorporated in the MPR Code and Development Agreement cannot be considered a new master
planned resort, particularly considering, the :eference ~ the expansion. o~ the "small resort" in ~ 1(. ~ I~ f\!ED
1.3.12 of the Development Agreement, strams credulIty. Were the eXIsting resort adequate to ~~'" --A ,-
definition of master planned resort, the Development Agreement and the MPR Code would have been
JU L 2 6 2mm
e
e
This also reflects the requirement for master planned resorts both statutory and in
Jefferson County's own ordinance. It is not addressed. Equally important is the lack of
attention to the water and sewer system. The only assurance provided to DCD is that the
project has sufficient MERU coverage and the private utility, owned by the developer,
will hook up the project.41 But is this enough. Can anyone say the water system provides
adequate pressure when backup pumps had to be turned on when the fire department
fought the Admiralty Condominium Plat fire a year and a half ago. It is clear that the
normal pressure in the system was not sufficient to supply water to the fire department to
fight that fire. What would have happened if no one would have been available to turn on
the back up pumps? While I do not suggest that the systems are necessarily deficient, I
do suggest that there is inadequate information to show that they are sufficient and that
this information should be before the Hearing Examiner and BoCC before it evaluates an
amendment to the Development Agreement and associated permit application p~orting
to allow the project and the changes in intensity of use that are associated with it. 2
The proposed amendment to the Development Agreement should be rejected. It does not
have the requisite approval of the owners. Even if it did have same, it does not meet the
requirements for amending land use approved by the Comprehensive Plan. The proposal
raises serious questions of violating the rights of the remaining landowners in the Port
Ludlow MPR in connection with its breach of the terms of the PLVC CC & Rs. Such oa
violation would constitute a 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 Resort imbedded in a master planned resort that is based on the
notion of a public resort. The issues of taking, public purpose, and compensation are
nowhere addressed. The proposal continues to violate the conditions of the SSDP. The
proposal does not integrate the information substantively required for its evaluation either
as an application for approval of an SSDP or as a proposed legislative action to provide
spot zoning assistance to the developer.
~4;'~':~
Leslie A. Powers
44 Heron Road
Port Ludlow, W A 98365
Rick Rozzell has joined in the above comments.
JulyJ~oaJl!'lPOMldIllDald"'6evAplI011106
unnecessary. Compare RCW 36.70A.360 an 362 and the treatment of master planned resorts in the
Comprehensive Plan at LNG 25, 26 0 . E'('"'\ ElT~ TlE If,\
41 Mr. Scalf confIrmed this to the undersigned by email. Rl " Jl '0/ LA lLY
42 The entire nature of this
lUl 9 r:
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15
JEffERSnl tGUNT'( 0
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Pollution Control Hearings Board
Shi,relines Hearings Board
Fore,t I'rac;ti,:es Appe.l, BOMd
l-lydr<luHc Appeals Board
Environmental and Land Use Hearings Board
Telephone; (3<>0) 459-6J27
l'A)(: l3W) 438-7&99
Email: eho@>eno.wa.goy
Websile: www.eho.wa.gOll
STATE Of WASHINGTON
ENVIRONMENTAL HEARINGS OFFICE
4224 . 6th Ave. Sf, Bldg. 2/ Rowe Six
PO Box 40903, Lleey, WA 98504-0903
May 17,2006
RECE'lvr; "
MAY 1 B 2006
. FOERs & THfR.R.~H, P.S.
BY FAX AND MAIL
Leslie A. Powers
3502 Tieton Drive
Yakima W A 98902
David W. Alvarez
ChiefCiviJ Deputy Prosecuting Attorney
Jefferson County
PO Box 1220
Port Townsend WA 98368
Rick Rozzell
41 Windrose Drive
Port Ludlow W A 98365
Donald E. Marcy
CAIRNCROSS & HEMPLEMANN
524 Second Avenue Suite 500
Seattle W A '98104-2323
(for Trendwest Resorts Inc.)
Marco De Sa E Silva
DAVIS WRIGHT TREMAINE LLP
2600 CentUry Square
1501 Fourth Avenue
Seattle WA 98101-1688
(For Port Ludlow Associates LLC)
RE: SHB NO. 05-029
LESLIE A POWERS & RICK ROZZELL v. JEFFERSON COUNTY,
TRENDWEST RESORTS, INC. & PORT LUDLOW ASSOCIATES LLC
Dear Parties:
Enclosed is An Order on Motions in this matter,
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).
The fonowing notice is given per RCW 34.05.46] (3): Any party may file a petition for
reconsideration within 10 days and serve it on the other parties. The term "fileA means receipt.
Sincerely yours,
/J~jl frL
William H. Lynch, Presiding
WHUjg/S 05.029
Cc: Don Bales - Shorelands, Ecology
Jefferson County Dept of Community Development
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CERTIFICA nON
On tbis dJl)'. I forwarded a lrue and accurate copy of
the documents 10 which thi~ ~'(:rtifiCl\1e is affIXed via
United States Postal Service poltage prepaid to the allcrneys
of record herein.
I certify under pemlty of perjury under be laws of the
State ofW mgton Ihr~ for~ is tnKl and correct.
DATED 4_:2.0 . at Lacey, WA.
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JHHRSON COUNTY OLD
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BEFORE THE SHORELINES HEARINGS BOARD
8T A TE OF WASHINGTON
2
LESLIE A. POWERS and
3 RICK ROZZELL,
4
Petitioners,
SHB 05-029
5
ORDER ON MOTIONS
v.
6
JEFFERSON COUNTY; TRENDWEST
7 RESORTS, INC.; and PORT LUDLOW
ASSOCIATES, LLC,
8
Res ondents.
9
Petitioners Leslie A. Powers and Rick R07..zell filed an appeal '"lith the Shorelines
10
Hearings Board (Board) challenging Jefferson County's issuance of a Shoreline Substantial
Development Permit (SDP05-00002) with conditions for the development of a 120-unit time.
11
12
share multi-family residential development on approximately 14.66 acres within the Port Ludlow
13
Master Planned Resort.
14
15 The Board was comprised of William H. Lynch, presiding, Kathleen D. Mix, Judy
16 Wilson, Kevin Ranker. and Judy Barbour. No oral argument was held. The Board deliberated
17 the motions based upon the record. Donald E. Marcy and Michael S. Brunet represent .
18 Respondent Trendwest Resorts, Inc. (Trendwest). Marco de Sa e Silva represents Respondent
19 Port Ludlow Associates, LLC. (PLA). David Alvarez represents Respondent Jefferson County.
20 Petitioner Leslie A. Powers represents himself and Petitioner Rick Rozzell.
21
SHB 05-029
ORDER ON MOTIONS
RE(~EK\rIED
1
PH () (l
vvL ir;" [)
JEfFERSON COUNTY DeD
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1 Four different dispositive motions were filed in this case. They are:
2 1) Powers' Motion for Summary Judf,l"ffient. The Petitioner requests the Board to remand
the SSDP back to the County on the basis that it was, not finally approved by the County.
3
2) Trendwest's Motion to Dismiss. Trendwest moves for dismissal of the entire case on
the basis that the shoreline appeal before the Board was filed too late because the SSDP was final
when filed with Ecology. Trendwest also contends the Board has no jurisdiction to decide the
issues raised in the appeal.
3) Jefferson County's Motion for Partial Summary Judgment. Jefferson County has
asked the Board to dismiss issues #4, #5, #6, and #7. The County notes that another portion of
this proposed project is before the superior court. It contends that the action and authority of the
Appellant Hearing Examiner should be brought in superior court under the Land Use Petition
Act (LUP A).
4) Port Ludlow Associates' Motion to Dismiss. PLA moves for dismissal of the entire
case on the basis that the appeal was filed too late. PLA also contends the Board has n.o
jurisdiction to decide the issues raised in the appea1.
The Board has reviewed "and considered the pleadings, motion papers, and exhibits
4
5
6
7
8
9
10
11
12
contained in the Board record, including the following:
13
14
15
16
17
18
19
20
21
1. Petitioner's Petition for Review and Attached Exhibits;
2. Petitioner's Motion for Summary Judgment;
3. Petitioner's Memorandum of Facts and Law in Support of Motion for
Summary Judgment;
4. Declaration of Leslie A.Powers and attachments;
5. Supplemental Declaration of Leslie A. Powers and attachments;
6. Respondent Trendwest's Response to Petitioners' Motion for Summary
Judgment;
7. Respondent Jefferson County's Memorandum of Law in Opposition to
Petitioners' Motion for Summary Judgment;
8. Declaration of David Alvarez dated February 16, 2006, and attachment;
RECEIVED
SHB 05-029
ORDER ON MOTIONS
2
J"l <; r-
U kt;O
JEfffRSON [OUNn UCU
e
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9. Respondent Jefferson County's Memorandum of Law in Support of Its Partial
Dispositive Motion;
2
3
10. Declaration of David Alvarez in Support of Respondent Jefferson County's
Partial Dispositive Motion and attachment;
4
11. Declaration of Al Scalf in Support of Respondent Jefferson County's Partial
Dispositive Motion and attachments;
5
6
12. Respondent Trendwest's Motion to Dismiss;
13. Declaration of Donald E. Marcy, Respondent Trendwest Resorts, lnc.'s
Motion to Dismiss;
7
8
14. PLA's Motion to Dismiss and Memorandum in Support of Dispositive
Motions of Jefferson County and Trendwest;
9
IS. Petitioner's Reply Brief to Respondents Jefferson County's Motion to
Dismiss; Trendwest's Motion to Dismiss; and P"LA's Memorandum of Law in
Support of Its Partial Dispositive Motion; and
16. Declaration of Leslie A. Powers and attachments.
10
11
12
13
Having fully considered the record in this case and being fully advised, the Board enters
the following ruling.
14
15.
FACTUAL BACKGROUND
16
The site is located within Jefferson County on the north shore of Ludlow Cove at the west.
17
end of Port Ludlow Bay. The site comprises 14.66 acres, which is located within.the Port
18
Ludlow Ma!>'ter Planned Resort. The proposal, known as Ludlow Cove Division 2, would create
19
a 120-unit time-share multi-family residential development. Staff Report and Recommendation
20
to Jefferson County Hearing Examiner and Mitigated Determination afNon-Significance
21
(MDNS), Attachment to Petitionfor Review.
SHE 05-029
ORDER ON MOTIONS
3
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JEFfERSON LnUNrf Dee
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1
Jefferson County and the City of Port Townsend jointly adopted a Shoreline Management
2
Master Program (SMMP) in March 1989. Declaration of Al Scaff, Attachment 3. The SMMP
3
is currently applicable only to Jefferson County because Port Townsend subsequently adopted its
4
O~'11 SMMP. Declaration of David Alvarez, p.3, ~ 16.
5
In January 1995, the prior owner of the property, Pope Resources, filed a preliminary plat
6
application with Jefferson County for the single and multi-family residential project known as
7
Ludlow Cove. In 1998 Jefferson County adopted the Land Use Procedures Ordinance (LUPO),
8
Ordinance #04-0828-98, to comply with the state Land Use Petition Act (chapter 36.70C RCW)
9
and the Regulatory Reform Act (chapter 36.70B RCW). Declaration of At Scalf, p. 3. ~ 11; see
10
also Attachment 3. LUPO became effective on September 28, 1998. Declaration of Ai Scalf,
11
Attachment 4. LUPO was never submitted to the Department of Ecology (Ecology) for its
12
approval for incorporation into the Jefferson County SMMP.
13
Pope Resources signed a development agreement with Jefferson County on May 1, 2000,
14
for property owned by Pope Resources within the Port Ludlow Master Planned Resort.
15
Declaration of Al Scalj; Attachment 5. Section 3.12.1 of the development agreement provides
16
that all development applications proposed by Pope for the Pope Property must be pursuant to
17
the MPR Zoning Ordinance and the County's LUPO. Section 4.22 of the agreement states that
18
the term of the agreement is 20 years from its effective date.
19
PLA purchased Pope Resources' interest in the Ludlow Cove site in 2001. The County
20
Hearing Examiner approved an application pertaining to Ludlow Cove on August 2, 2002.
21
SHB 05-029
ORDER ON MOTIONS
'f,:[,-t" fC( ,,[,"1 V IT\1 Y,,]E D
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4
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JEFFERSUN COUNTY OeD
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1 On January 13, 2005, PLA filed a Master Land Use Application pursuant to LUPO to
2 develop Ludlow Cove, Division Two. Declaration of Al Sca{f,' Attachments J & 2. The
3 application covered a variance, binding site plan, and the SSDP, and included a SEP A checklist.
4 Although PLA owns the property, the proponent of the proposal is Trendwest. Declaration of At
5 Scalf, p. 2, .. 4.
6 The county staff determined that the process for "Type B" permits under the LUPO rules
7 applied to the proposal. Id. p. 4, ~! 15. Under the Type B LUPO process, a Hearing Examiner
8 makes the initial decision, which subsequently may he appealed to an Appellate Hearing
9 Examiner. ld p.5, ~ 23; see also Attachment 4.
10 An open record hearing was held before a Hearing Examiner on A\.lgust IS, 2005. The
11 Hearing Examiner's decision was issued on September'2, 2005. Declaration of Al Scal/.
12 Attachments 6 &7. On the same day, Jefferson County mailed a notice to interested parties,
13 including the Petitioners, notifying them of the Hearing Examiner's decision. The notice states
14 "Appeals ofthis decision must be made in writing as outlined in the attached instruction sheet."
15 Declaration oj Al Scalf, Attachment 7.
16 The attached instruction sheet states that an aggrieved party of record may file an appeal
17 to the Appellate Hearing Examiner by September 16, 2005. The instruction sheet also states that
18 "Instructions and requirements for processing an appeal of a Hearing Examiner Type B decision
19 are explained in the {LUPO]." Section 15 of LUPO sets forth the procedures for Type B
20 decisions befOre the Hearing Examiner. Subsection CA. of this section authorizes a person to
21 file a motion for reconsideration with the Hearing Examiner within ten working days from the
SHB 05-029
ORDER ON MOTIONS
5
R.ECEK~lE1,,' if-'p"
\~ I JL' r
1./1! . i
JUL 2 8
JEFFERSON CUUNf( Den
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e
date the Hearing Examiner's decision was filed. It further provides that "[i]f a timely and
2 appropriate request for reconsideration is filed~ the appeal period shall begin from the date the
3 decision on the reconsideration is issued." Declaration of Al Scalf, Attachment 4, p. ] 3 of] 9.
4 Consistent with these instructions from the County, Petitioner timely filed a motion for
5 reconsideration on September 12,2005. Mr. Lewis Hale also timely filed a motion for
6 reconsideration. 'Declaration of Leslie A. Powers, p. 2. However, on September 13,2005,
7 Jefferson County sent the SSDP as conditioned by the Hearing Examiner to Ecology for filing.
8 Declaration of At Scalf, Attachments 8 & 9. The County staff believed the SSDP was final.
9 Declaration of At Scalf, p. 6, , 27. Ecology received the SSDP on September 15,2005.
10 Declaration of David Alvarez, February 16, 2006, Attachment I. The Petitioner inquired on
11 September 14th of the County about the deadlines for filing appeals. Mr. Scalf sent an e-mail
12 response indicating that the SSDP was already filed with Ecology, and that an appeal with the
13 Shorelines Hearings Board must be filed within 21 days after this filing. Mr. Powers asserts this
14 e-mail response from the County, along with other e-mails, was lost from his computer and no
15 other notice was sent. Mr. Powers did not immediately seek another response from the County.
16 The Hearings Examiner denied the motion for reconsideration on September 27,2005.
17 Declaration of Leslie A. Powers, Attachment.
18 The Petitioner filed an appeal with the Appellate Hearing Examiner on October 12, 2005,
19 as directed by LUPO and the Part B procedures. On October 14, 2005~ the Appellate Hearing
20 Examiner issued a guidance letter that stated he believed he did not have jurisdiction to hear the
21 appeal of the Hearing Examiner's decision to approve the SSDP with conditions. Declaration of
SHB 05-029
ORDER ON MOTIONS
6
RECEIVED
,~,~~ 0 f? r!H'LI"'l
UUL (.,; \) iUUb
JEFFERSON COUNTY DCD
e
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1 At Scalf Attachment 10. The Petitioner filed a Motion for Reconsideration of this decision on
2 October 26,2005. On October 31, 2005, the Appellate Hearing Examiner issued an order
3 denying a motion to reconsider his October 14th letter. Declaration of Ai Scalf. Attachment 11.
4 An appeal was filed with the Shorelines Hearings Board on November 3,2005.
5
6
ANALYSIS
7
Sununary judgment is designed to do away with unnecessary trials when there is no
8
genuine issue of material fact. LaPlante v. State, 85 Wn.2d 154,531 P.2d 299 (1975). A
9
material fact is one upon which the outcome of the litigation depends. Jacobsen v. State, 89
10
Wn.2d 104, 569 P .2d 1152 (1977). In a summary judgment proceeding, the moving party has
11
the initial burden of showing there is no dispute as to any material fact. Hiatt v. Walker
12
Chevrolet, 120 Wn.2d 57, 66, 837 P.2d 618 (1992). If the moving party has met its burden of
13
prqducing factual evidence showing it is entitled to judgment as a matter of law, the burden
14
shifts "to the nonmoving party to set forth facts showing there is a genuine issue of material
15
fact." Hash v. Children's Orthopedic Hosp., 110 Wn.2d 912,915,757 P.2d 507 (1988). In
16
ruling on a motion for summary judgment. the Court must c.onsider all of the material evidence
17
and all inferences therefrom in a manner most favorable to the non-moving party and, when ~o
18
considered, if reasonable persons might reach different conclusions, the motion should be
19
denied. Hash at 915; Woodv. Seattle, 57 Wn.2d 469,358 P.2d 140 (1960).
20
The legal issues in this case, as contained in the Second Pre-Hearing Order, are as
follows:
21
SHB 05-029
ORDER ON MOTIONS
7
]RE(~EKVED
I: q 0 {)
vUL. ~j iJ
JHffRSDN COUNIYOCD
e
e
1
1.
Was the petition 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
Development Penn it SDP05-00002 (SSDP) with conditions to co-
applicants Port Ludlow Associates and Trendwest for constroction of a
120-unit multi-family timeshare development at Ludlow Cove Division n
comply with the Jefferson County Shoreline Master Program, the
applicable provisions of the Washington Administrative Code, and chapter
90.58 RCW?
Should the petition be dismissed for failure to serve all the parties in a
timely manner? .
Does the Shorelines Hearings Board have jurisdiction to hear an appeal of
the decision by the appellate hearing examiner for Jefferson County that
he did not have jurisdiction to hear an appeal of the SSDP?
Was the SSDP submission final for filing when the Jefferson County
Department of Community Development (DCD) filed it with Ecology?
Did DCD comply with applicable law, including the county's shoreline
master program's provision relating to notice when it submitted the SSDP
to Ecology?
Is it legally proper to issue additional SSDPs ~o the project proponent for
other properties it o\vns in the Port Ludlow Master Planned Resort if they
are alleged to be in violation ofSSDP 91-017, the Shorelines Management
Act, and the Shoreline Master Program in Ludlow Bay Village?
2
2.
3
4
5
3.
6
4.
7
8
5.
9
6.
10
7.
11
12
13
Finality of Hearing Examiner's Decision
14
The Board finds that the County erred by sending the SSDP to Ecology on September 13,
15
2005, because it was not the final decision of the County. At the time of the transmittal to
16
Ecology, the motion and appeal procedures spelled out in the ordinance were still underway and
17
available to the Petitioners. Because of this determination, the Board does not address other
18
issues raised in this appeaL I
19
20
I Although not essential to this decision, the Board does not agree with Petitioner's
assertion that he was owed specific notice by the County that the SSDP had been sent to
Ecology. RCW 90.58.140(4) requires a local government to forward a copy of the decision in a
SHE 05-029
ORDER ON MOTIONS
21
8
I'~ '\'\ T~ "('~,'r.>'K"", TED
i~V ,il1' !M' \\ I ,I""
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Ji.Ji... t.t V LUlia
JEFFERSON COUNTY OeD
JUL 2 G
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1 All of the Respondents state the appeal should be dismissed because it is untimely, based
2 upon the date which the County filed the SSDP with Ecology. Regarding timeliness of the
3 appeal, the County argues that the Board does not have the statutory authority to review local
4 govennnent decisions regarding the authority given to its hearing examiners. The County also
5 contends that the SMMP controls the appeals process at issue. The County reasons that LUPO
6 did not amend the County SMMP because Jefferson County never asked Ecology to approve
7 LUPO as an amendment to the SMMP. Therefore, the County contends that SSMP Section
8 18.25.690 is the controlling provision, which establishes a 30-day deadline from receipt of the
9 final order for filing shoreline permit appeals. Essentially, the County argues that it erroneously
10 directed the petitieiner into the wrong review and appellate process, and was without authority to
11 do so, under its SMMP. See Declaration of Al Scalf, Attachment 3.
12 Similarly, Trendwest and PLA assert that the Shorelines Hearings Board does not have
13 authority to consider jurisdictional decisions by the Appellate Hearing Examiner. They also
14 contend that the SSMP trumps other general code requirements.
15 WAC 173-27-130 provides that the final decision by the local government is filed with
16 Ecology. RCW 90.58.180(1) addresses service of a petition for review after the petition
17
18 timely manner to each person requesting a copy of the decision. The Petitioner was provided
timely notice of the Hearing Examiner's decision. Although it is unfortunate that there was a
19 problem in retrieving an e-mail response from the County, tbe County did not owe additional
notice regarding the filing of the SSDP. Petitioner should have been aware that the SSDP was
20 likely to be filed with Ecology shortly after the issuance of the decision. The Board reached this
same conclusion in Ferari v. Lewis County and Robert Thompson, SHB No. 05-033 (Order
21 Dismissing Appeal) (May 10, 2006).
SHB 05-029
ORDER ON MOTIONS
9
RJE(~JEK'TE 1D
JEffERSON COUNTY DCD
J~p Q f'
uL (;" 0
e
e
1 pertaining to a final decision of a local government has been filed. RCW 90.58.180(2)
2 authorizes the Attorney General and Ecology to obtain review of any final decision of a local
3 government granting a permit, or granting or denying an application for a permit. With respect
4 to appeals of local government decisions, the framework for shorelines appeals restricts the
5 Board's jurisdiction to only final decisions by local governments.
6 The Boatd has clear authority to determine whether the action taken by a local
7 government is "final" for purposes of appeal to the Board. In Morgan el a1. v. Clark County et
8 al., SHB Nos. 05-008 & 05...009 (Order on Petitioners' Jurisdictional Motions)(August 1,2005),
9 the Board was faced with whether Clark County had made a final decision on a SSDP and a
10 conditional use permit for a proposed mine expansion. Although there were unresolved issues in
11 that case which could ultimately affect the activity conducted at the site, the Shorelines Hearings
12 Board found that the Clark County Board of Commissioners did make a final decision on the
13 shoreline pertnits after the hearing examiner employed by the County had made an initial
14 determination.
15 In this case, Jefferson County adopted LUPO with the stated purpose of establishing
16 procedures for the County to process land use applications. The ordinance states:
17 The procedures are designed to promote timely and informed public participation;
eliminate redundancy in the land use application review process; minimize delay and
18 expense; and help ensure the use of land in a manner consistent with County goals as set
forth in the Comprehensive Plan and development regulations.
19
Section 1, Attachment 4, Declaration of Al Scarj
20
21
SHB 05-029
ORDER ON MOTIONS
10
RE(CEJIVJED
JEffERSON COUNTY DCD
e
e
In Jefferson County. LUPO incorporates shoreline pennits applications and appeals as
2 part of the permits subject to its review procedures. Section 6 of the ordinance divides land use
3 applications into three different categories. The "Type A" category only requires the Director to
4 make an administrative decision. Shoreline exemptions and SSDPs for primary uses are both
5 listed under this category.
6 Consisterit with its stated purpose, Section 7 ofLUPO allows 'applications to be
7 consolidated. This section provides that:
8 A land use application that involves two or more pennits may, at the option of the
Applicant, be consolidated into a single process using the highest procedure required for
9 any pennit included in the application.
10 Attachment 4, Declaration of Ai Scarf
11
Condominium subdivisions of five or more units and conditional uses are considered to
12
by Type B decisions. Type B decisions require the decision to be made by a Hearing Examiner.
13
Section IS.A. of LUPO mandates the use ofthe Hearing Examiner procedures for "Type Bland
14
use applications and all other land use applications considered under Type B procedures using
15
consolidated permit review." Because the proposed project includes a SSDP (Type A decision)
16
and a condominium subdivision (Type B decision), the consolidated application process under
17
LUPO requires a Hearing Examiner to review the SSDP in this case.
18
A further examination ofLUPO illustrates that the SSDP was subject to the entire LUPO
19
process, and that it was an error for the County to segregate the SSDP apart from the rest of the
20
consolidated application and transmit the permit to Ecology. Section 19 of LUPO contains a
21
SHB 05-029
ORDER ON MOTIONS
11
RECEr\lJED
JH' 0 6 ~^-
VL I . ,',';1;,("
..l u"t)
JEFFERSON COUNlY OeD
SHB 05-029 .
ORDER ON MOTIONS
12
R.EClElVED
J"L
&' . () 'j
U , i:5 h "'''In,..
" LfJt;O
JfffERSOI~ tOll!vn, I;
"~;<;f' 4}vij
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1 chart showing the review procedures to be undertaken by the Hearing Examiner and the
2 Appellate Examiner. In the Appellate Examiner column, both ~ype A and Type B applications
3 contain an asterisk. The asterisk, as indicated in the key, provides "These decisions may be
4 appealed to Superior Court or the Shorelines Hearings Board in accordance with Chapter
5 36.70C RCW or Chapter 90.58 RCW." (emphasis added). No such asterisk appears in the
6 Hearing Exarnintt colurnn.
7 Furthermore, SectionD.7. ofLUPO states that "[t]he decision of the Hearing Examiner
8 shall be final unless, within fourteen (14) calendar days after issuance of a decision, a party
9 a.ppeals the decision to the Appellate Examiner in accordance with this Chapter." (emphasis
10 added). Nothing in LUPO sllggeststhat the Hearing Examiner's decision regarding a shoreline.
11 permit would somehow become a final decision if a timely appeal of this decision was made to
12 the Appellate Examiner. The '"Appellate Examiner" is defined as "the individual who decides
13 appeals of Hearing Examiner Decisions." Section 2, Attachment 4, Declaration of Ai Scalf
14 Section 5 ofLUPO contains specific exemptions from the review processes established in the
15 chapter. No exemptions are listed for shoreline cases. Thus, there is simply nothing in this
16 Ordinance that would give no~ice to a party that an alternative method of appeal applied, and that
17 a final decision had been made at the hearings examiner level for the shoreline aspects of a
18 permit.
19 In the present case, Jefferson County transmitt~d the SSDP to Ecology even before the
20 Hearing Examiner rendered his decision on reconsideration. Section CA. states that "[i]f a
21
RECEIVED
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..' v {,JUt}
JEFFERSON CDliNTV liP)
~''iJ{j
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i timely and appropria.te request for reconsideration is filed, the appeal period shall begin from the
2 date the decision on the reconsideration is issued." (emphasis added).
3 Respondents contend that the SMMP controls over LUPO because LUPO was never
~ ~ . ... ,.. '" _ __40':1':__
6 permit appeals, is abondantly clear. Section 3 of this ordinance expressly states that:
7 The procedures for decision-making described in this Chapter and in the Rules of
Procedure adopted under this Chapter supersede any conflicting procedures that may be
8 found in other chapters of the Jefferson County Code. This Chapter applies to existing
permit applications as well as to those that may be med in the future.
9
10 JeffersOrl County established a twoMtier appellate process with different hearing
11 examiners at each level for consolidated land use applications. Because a portion of this process
12 may occasionally include shoreline permits does not require the incorporation of this entire
13 process as part of the SMMP.
14 . Even if the Respondents' argument that the SMMP controls over LUPO is accepted, the
15 Hearing Examiner's decision stm does not constitute the final decision in this case. Section
16. 18.25.480(2) a.nd (3) of the SMMP authorizes the Hearings Examiner to take actions regarding
17 permit applications under the Shoreline Management Act and the SMMP. Section 18.25.490(2)
18 provides that the Board of County Commissioners acts as an appeals board ''with respect to
19 decisions by the hearing examiner issued within the scope of the master program." This includes
20 appeals of decisions regarding applications for shoreline permits. Section 18.25.490(1). If the
21, County concluded that there is no appeal to the appellate hearings examiner on shoreline
SHB 05-029
ORDER ON MOTIONS
13
e
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1 permitting matters, it should have directed petitioner to this alternative route of review prior to
2 transmitting the decision to Ecology.
3 Although Section 18.25.690 provides for appeals to be made to the Shorelines Hearings
4 Board, that sectiOh applies only after receipt of the final order. Respondents' suggestion that
5 Section 18.25.690 allows appeals directly from the Hearing Examiner to the Shorelines Hearings
6 Board would make language in Section 18.25.480 superfluous. When interpreting legislative
7 enactments, they should be read to give each word and clause elfect so no part is rendered
8 meaningless or superfluous. Hangartner v. Seattle, 151 Wn.2d 439, 451, 90 P.3d 26 (2004). It
9 also fails to recognize that Section 18.25.510(8) authorizes a person aggrieved by an action taken
lOon an applic8tioIl.may appeal the decision in compliance with Section 18.25.680 and 18.25.690.
11 (emphasis added). Section 18.25.680 authorizes appeals before the Jefferson County Hearing
12 Examiner. As discussed earlier, Section 18.25.490 establishes the Board of County
13 Commissioners as an appeals board from Hearing Examiner decisions.
14 Trendwest also argues that other rules of statutory construction, including "the specific
15 controls over the general", should make the SMMP supersede the LUPO. Although this is a
16 widely recognited rule of statutory construction when two provisions cannot be harmonized,
17 Omega National Insurance Company v. Marquardt, 115 Wn.2d 416,425, 799 P.2d 235 (1990),
18 in this case Trendwest has the, argument backwards. The more specific process is the
19 consolidated review process established by LUPO to implement the Regulatory Reform Act.
20 This controls over the more general and earlier enacted provisions of the SMMP. In addition, if
21 statutory provisions conflict, the more specific and latest in order controls. State v. San Juan
SHB 05-029
ORDER ON MOTIONS
14
RECEf\TED
J"l ? ~ '1,:1(:1"
U 1.1 v LiJua
JnffRSDICOU~O' @(~
e
e
1 County, 102 Wn.2d 311, 320, 686 P.2d 1073 (1984). Even if there is a question about
2 reconciling these two ordinances, Jefferson County expressly stated in Section 3 of LUPO,
3 which is entitled "Controlling Ordinance and Rules", that LUPO expressly supersedes any
d cfmflictimz ordinance. The I.UPO provisions control the processing of this permit application
6 The Jefferson County Hearing Examiner cannot pick and choose what permits are subject
7 to full LUPO review. In Morgan, the Clark County Board of Commissioners was the entity
8. designated to make the final decision on the shoreline pennits in question. If the Hearing
9 Examiner in that case had transmitted tIle permits 10 Ecology prior to the Commissioners' action,
10 it likewise would have been flawed because it was not a final decision by the County. Jefferson.
J 1 County had not yet made a final decision regarding the SSDP in this case when the permit was
12 transmitted to Ecology prior to review by the Appellate Examiner, or alternatively, by the Board
13 of County Commissioners, acting as an appeals board.
14 A remand to the local government is usually the remedy in a case where there is a lack of
15 a final decision by the local government. Here, because of confusion and misdirection in the
16 application of the proper procedures for the shoreline pennit, there is no final decision by a local
17 gbverfiment sufficient to give the Board jurisdiction.
18
19
20
21
SHB 05-029
ORDER ON MOTIONS
15
RECI~KVED
IIIL () r;
vu t; 0
JEff! i COUIUTY DeD
e
e
1
ORDER
2 The Motions for Summary Judgment are DENIED on all issues and the case is
3 REMANDED to Jefferson County l'or further actions, consistent with this opinion.
4
.rt
5 DonethisJ1 daYOf~__2006.
6
7
SHORELINES HEARINGS BOARD
;J~C'JI ~
WILLIAM H. LYNCH, Presiding
8
9
10
k!4.fu~b, (Vt;-f-
KATHLEEN D. MIX, Memlx;t
11
12
~~
JUDY · ,s~~ember
~u&'e~~
./;;
r/ ..-
: ......1
13
14
15
16
17
18
19
20
21
SHB 05~029
ORDER ON MOTIONS
Hi' i~ ,(~"'IE' ~I ".
i' '~ :[~l.! ..d I '\TE D
16
JilL C,),O
U t; 0
JfHfRSUN LUUf~fY DCD
e
.
-. .
Pollut!ol' Contml Hearings Board
oShhrelines Hearings lIoard
Foresll'raCli(:es Appeals BC>.1rd
liydtauli<: Appeals Board
rnvlronmental and land Use Hearings Board
Telephone: (3<>0) 459-6327
I' AX.: (;160) 438-7&99
Email: eho@eho.wa.gov
Webslte: www.eho.wa.gov
STATE Of WASHINGTON
ENVIRONMENTAL HEARl NGS OFFICE
4214 . 6th Ave. SE, Bldg. 2, Rowe Six
PO Box 40903, Lacey, WA 98504.0903
May 17,2006
ReCElvr"
MAY J 9 2006
'FCJIt:a & THUR.ttc, P.S.
BY FAX AND MAIL
Leslie A. Powers
3502 Tieton Drive
Yakima W A 98902
David W. Alvarez
Chief Civil Deputy Prosecuting Attorney
Jefferson County
PO Box 1220
Port Townsend W A 98368
Rick Rozzell
41 Windrose Drive
Port Ludlow W A 98365
Donald E. Marcy
CAIRNCROSS & HEMPLEMANN
524 Second Avenue Suite 500
Seattle WA 98104-2323
(for Trendwest Resorts Inc.)
Marco De Sa E Silva
DAVIS WRlGHT TREMAINE LLP
2600 Century Square
1501 Fourth Avenue
Seattle W A 9810 1-1688
(For Port Ludlow Associates LLC)
RE: SHB NO. 05-029
LESLIE A POWERS & RICK ROZZELL v. JEFFERSON COUNTY,
TRENDWEST RESORTS, INC. & PORT LUDLOW ASSOCIATES LLC
Dear Parties:
Enclosed is An Order on Motions in this matter,
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).
The following notice is given per RCW 34.05.461(3): Any party may tiIe a petition for
reconsideration within 10 days and serve it on the other parties. The tenn "tile" means receipt.
Sincerely yours,
/J~jl trL
William H. Lynch, Presiding
WHLIjg/S 05-029
Cc: Don Bales - Shorelands, Ecology
Jefferson County Dept of Community Development
#
Ene.
CERTIFICATION PanA
On Ibis day. I forWill'ded a ll'UI: and acturate Cl!fJ "m"
the d<x;urnents to which this certific!l1e is affixed via
United SillieS Postal Service pollllge prepaid to the atio
of record herein.
I certify under penllty of perjury under fie laws c,f the
State ofW i'lgton, fhrijhC fore~ is tJUe and correct.
DATED _~:::LO. lIl!.4l(;e)I. W A.
~'?(~
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e
e
BEFORE THE SHORELINES HEARINGS BOARD
STATE OF WASHINGTON
2
LESLIE A. POWERS and
3 RICK ROZZELL,
4
Petitioners.
SHB 05-029
5
ORDER ON MOTIONS
v.
6
JEFFERSON COUNTY; TRENDWEST
7 RESORTS, INC.; and PORT LUDLOW
ASSOCIATES, LLC,
8
Res ndents.
9
Petitioners Leslie A. Powers and Rick R07...zelJ filed an appeal with the Shorelines
10
Hearings Board (Board) challenging Jefferson County's issuance of a Shoreline Substantial
11
Development Permit (SDP05-00002) with conditions for the development of a 120-unit time-
12
share multi-family residential development on approximately 14.66 acres within the Port Ludlow
13
Master Planned Resort.
14
15 The Board was comprised of William H. Lynch, presiding, Kathleen D. Mix, Judy
16 Wilson. Kevin Ranker, and Judy Barbour. No oral argument was held. The Board deliberated
17 the motions based upon the record. Donald E. Marcy and Michael S. Brunet represent
18 Respondent Trendwest Resorts, Inc. (Trendwest). Marco de Sa e Silva represents Respondent
19 Port Ludlow Associates, LLC. (PLA). David Alvarez represents Respondent Jefferson County.
20 Petitioner Leslie A. Powers represents himself and Petitioner Rick R07..zell.
21
SHB 05-029
ORDER ON MOTIONS
.-m-e
e
Four different dispositive motions were filed in this case. They are:
2 1) Powers' Motion for Summary Judgment. The Petitioner requests the Board to remand
the SSDP back to the County on the basis that it was not finally approved by the County.
3
2) Trendwest's Motion to Dismiss. Trendwest moves for dismissal of the entire case on
4 the basis that the shoreline appeal before the Board was filed too late because the SSDP was final
when filed with Ecology. Trendwest also contends the Board has no jurisdiction to decide the
5 issues raised in the appeal.
6 3) Jefferson County's Motion for Partial Summary Judgment. Jefferson County has
asked the Board to dismiss issues #4, #5, #6, and #7. The County notes that another portion of
7 this proposed project is before the superior court. It contends that the action and authority of the
Appellant Hearing Examiner should be brought in superior court under the Land Use Petition
8 Act (LUPA).
9 4) Port Ludlow Associates' Motion to Dismiss. PLA moves for dismissal of the entire
case on the basis that the appeal was filed too late. PLA also contends the Board has no
10 jurisdiction to decide the issues raised in the appeal.
11 The Board has reviewed and considered the pleadings, motion papers, and exhibits
12 contained in the Board record, including the following:
13 1. Petitioner's Petition for Review and Attached Exhibits;
14 2. Petitioner's Motion for Summary Judgment;
3. Petitioner's Memorandum of Facts and Law in Support of Motion for
15 Summary Judgment;
16 4. Declaration of Leslie A. Powers and attachments;
17 5. Supplemental Declaration of Leslie A. Powers and attachments;
6. Respondent Trendwest's Response to Petitioners' Motion for Summary
18 Judgment;
19 7. Respondent Jefferson County's Memorandum of Law in Opposition to
20 Petitioners' Motion for Summary Judgment;
8. Declaration of David Alvarez dated February 16,2006, and attachment;
21
SHB 05-029
ORDER ON MOTIONS
2
e
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9. Respondent Jefferson County's Memorandum of Law in Support of Its Partial
Dispositive Motion;
2
3
10. Declaration of David Alvarez in Support of Respondent Jefferson County's
Partial Dispositive Motion and attachment;
4
11. Declaration of Al Scalf in Support of Respondent Jefferson County's Partial
Dispositive Motion and attachments;
5
6
12. Respondent Trendwest's Motion to Dismiss;
13. Declaration of Donald E. Marcy, Respondent Trendwest Resorts, Inc.~s
Motion to Dismiss;
7
8
14. PLA's Motion to Dismiss and Memorandum in Support of Dispositive
Motions of Jefferson County and Trendwest;
9
15. Petitioner's Reply Brief to Respondents Jefferson County's Motion to
Dismiss; Trendwest's Motion to Dismiss; and PLA's Memorandum of Law in
Support of Its Partial Dispositive Motion; and
10
11
16. Declaration of Leslie A. Powers and attachments.
12
13
Having fully considered the record in this case and being fully advised, the Board enters
the following ruling.
14
15
FACTUAL BACKGROUND
16
The site is located within Jefferson County on the north shore of Ludlow Cove at the west
17
end of Port Ludlow Bay. The site comprises 14.66 acres, which is located within the Port
18
Ludlow Master Planned Resort. The proposal, known a..<; Ludlow Cove Division 2, would create
19
a 120-unit time-share multi-family residential development. Staff Report and Recommendation
20
to Jefferson County Hearing Examiner and Mitigated Determination olNon~Significance
21
(MDNSj, Attachment to Petitionfor Review.
SHB 05~029
ORDER ON MOTIONS
3
e
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Jefferson County and the City of Port Townsend jointly adopted a Shoreline Management
2
Master Program (SMMP) in March 1989. Declaration of Al Sca?f, Attachment 3. The SMMP
3
is currently applicable only to Jefferson County because Port Townsend subsequently adopted its
4
OV'ln SMMP. Declaration of David Alvarez, p.3, , 16.
5
In January 1995, the prior owner of the property, Pope Resources, filed a preliminary plat
6
application with Jefferson County for the single and multi-family residential project known as
7
Ludlow Cove. In 1998 Jefferson County adopted the Land Use Procedures Ordinance (LUPO),
8
Ordinance #04~0828.98, to comply with the state Land Use Petition Act (chapter 36.70C RCW)
9
and the Regulatory Reform Act (chapter 36.70B RCW). Declaration of Al Scalf, p. 3, , 11; see
10
also Attachment 3. LUPO became effective on September 28, 1998. Declaration of Al Scalf,
11
Attachment 4. LUPO was never submitted to the Department of Ecology (Ecology) for its
12
approval for incorporation into the Jefferson County SMMP.
13
Pope Resources signed a development agreement with Jefferson County on May 1, 2000,
14
for property owned by Pope Resources within the Port Ludlow Master Planned Resort.
15
Declaration of Al Scalf,' Attachment 5. Section 3.12.1 of the development agreement provides
16
that all development applications proposed by Pope for the Pope Property must be pursuant to
17
the MPR Zoning Ordinance and the County's LUPO. Section 4.22 of the agreement states that
18
the term of the agreement is 20 years from its effective date.
19
PLA purchased Pope Resources' interest in the Ludlow Cove site in 2001. The County
20
Hearing Examiner approved an application pertaining to Ludlow Cove on August 2, 2002.
21
SHB 05-029
ORDER ON MOTIONS
4
e
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On January 13, 2005, PLA filed a Master Land Use Application pursuant to LUPO to
2 develop Ludlow Cove, Division Two. Declaration of Al Sea(!,' Attachments 1 & 2. The
3 application covered a variance, binding site plan, and the SSDP, and included a SEPA checklist.
4 Although PLA owns the property, the proponent of the proposal is Trendwest. Declaration of Al
5 Scalf, p. 2, , 4.
6 The county staff determined that the process for "Type B" permits under the LUPO rules
7 applied to the proposal. [d. p. 4. ~115. Under the Type B LUPO process~ a Hearing Examiner
8 makes the initial decision, which subsequently may be appealed to an Appellate Hearing
9 Examiner. Id. p.5, , 23; see also Attachment 4.
10 An open record hearing was held before a Hearing Examiner on AugU~115, 2005. The
11 Hearing Examiner's decision was issued on September'2, 2005. Declaration of Al Scalf,
12 Attachments 6 &7. On the same day, Jefferson County mailed a notice to interested parties,
13 including the Petitioners, notifying them of the Hearing Examiner's decision. The notice states
14 "Appeals of this decision must be made in writing as outlined in the attached instruction sheet."
15 Declaration of Al Scalf, Attachment 7.
16 The attached instruction sheet states that an aggrieved party of record may file an appeal
17 to the Appellate Hearing Examiner by September 16, 2005. The instruction sheet also states that
18 "Instructions and requirements for processing an appeal of a Hearing Exaininer Type B decision
19 are explained in the [LUPO)," Section 15 of LUPO sets forth the procedures for Type B
20 decisions before the Hearing Examiner. Subsection CA. of this section authorizes a person to
21 file a motion for reconsideration with the Hearing Examiner within ten working days from the
SHB 05.029
ORDER ON MOTIONS
5
e
e
date the Hearing Examiner's decision was filed. It further provides that "[i]f a timely and
2 appropriate request for reconsideration is filed, the appeal period shall begin from the date the
3 decision on the reconsideration is issued." Declaration (~f At Scal{ Attachment 4, p. 13 of 19.
4 Consistent with these instructions from the County, Petitioner timely filed a motion for
5 reconsideration on September 12,2005. Mr. Lewis Hale also timely filed a motion for
6 reconsideration. Declaration of Leslie A, Powers, p. 2. However, on September 13,2005,
7 Jefferson County sent the SSDP as conditioned by the Hearing Examiner to Ecology for filing.
8 Declaration of Al Scalf,' Attachments 8 & 9. The County staff believed the SSDP was final.
9 Declaration of Al Scalf, p. 6. ~ 27. Ecology received the SSDP on September 15,2005.
10 Declaration of David Alvarez, February J 6, 2006, Attachment 1. The Petitioner inquired on
11 September 14lh of the County about the deadlines for filing appeals. Mr, Scalf sent an e-mail
12 response indicating that the SSDP was already tiled with Ecology, and that an appeal with the
13 Shorelines Hearings Board must be filed within 21 days after this filing. Mr. Powers asserts this
14 e-mail response from the County, along with other e-mails, was lost from his computer and no
15 other notice was sent. Mr. Powers did not immediately seek another response from the County.
16 The Hearings Examiner denied the motion for reconsideration on September 27, 2005.
17 Declaration of Leslie A. Powers, Attachment.
18 The Petitioner filed an appeal with the Appellate Ifearing Examiner on October 12,2005,
19 as directed by LUPO and the Part B procedures. On October 14, 2005, the Appellate Hearing
20 Examiner issued a guidance letter that stated he believed he did not have jurisdiction to hear the
21 appeal of the Hearing Examiner's decision to approve the SSDP with conditions. Declaration of
SHB 05-029
ORDER ON MOTIONS
6
....................---.
e
Al Scalf, Attachment 10. The Petitioner f1.Ied a Motion for Reconsideration of this decision on
2 October 26, 2005. On October 31, 2005, the Appellate Hearing Examiner issued an order
3 denying a motion to reconsider his October 14th letter. Declaration of Al Scalf,' Attachment 1 I.
4 An appeal was filed with the Shorelines Hearings Board on November 3,2005.
5
6
ANALYSIS
7
Summary judgment is designed to do away with unnecessary trials when there is no
8
genuine issue of material fact. LaPlante v. State, 85 Wn.2d 154,531 P.2d 299 (1975). A
9
material fact is one upon which the outcome of the litigation depends. Jacobsen v. State, 89
10
Wn.2d 104, 569 P .2d 1152 (1977). In a summary judgment proceeding, the moving party has
11
the initial burden of showing there is no dispute as to any material fact. Hiatt v. Walker
12
Chevrolet, 120 Wn.2d 57, 66,837 P.2d 618 (1992). If the moving party has met its burden of
13
producing factual evidence showing it is entitled to judgment as a matter of law, the burden
14
shifts "to the nonmoving party to set forth facts showing there is a genuine issue of material
15
fact." Hash v. Children's Orthopedic Hasp., 110 Wn.2d 912, 915, 757 P.2d 507 (1988). In
16
ruling on a motion for summary judgment, the Court must consider all of the material evidence
17
and all inferences therefrom in a manner most favorable to the non-moving party and, when ~o
18
considered, if reasonable persons might reach different conclusions, the motion should be
19
denied. Hash at 915; Woodv. Seattle, 57 Wn.2d 469,358 P.2d 140 (1960).
20
The legal issues in this case, as contained in the Second Pre-Hearing Order, are as
follows:
21
SHB 05-029
ORDER ON MOTIONS
7
e
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1.
Was the petition 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
Development Penn it SDP05-00002 (SSDP) with conditions to co-
applicants Port Ludlow Associates and Trendwest for construction of a
120-unit multi-family timeshare development at Ludlow Cove Division n
comply with the Jefferson County Shoreline Master Program, the
applicable provisions of the Washington Administrative Code, and chapter
90.58 RCW?
Should the petition be dismissed for failure to serve all the parties in a
timely manner?
Does the Shorelines Hearings Board have jurisdiction to hear an appeal of
the decision by the appellate hearing examiner for Jefferson County that
he did not have jurisdiction to hear an appeal of the SSDP?
Was the SSDP submission final for filing when the Jefferson County
Department of Community Development (OeD) filed it with Ecology?
Did DCD comply with applicable law, including the county's shoreline
master program's provision relating to notice when it submitted the SSDP
to Ecology?
Is it legally proper to issue additional SSDPs to the project proponent for
other properties it owns in the Port Ludlow Master Planned Resort if they
are alleged to be in violation of SSDP 91-017, the Shorelines Management
Act, and the Shoreline Master Program in Ludlow Bay Village?
2
2.
3
4
5
3.
6
4.
7
8
s.
9
6.
10
7.
11
12
13
Finality of Hearing Examiner's Decision
14
The Board finds that the County erred by sending the SSDP to Ecology on September 13,
15
2005, because it was not the final decision of the County. At the time of the transmittal to
16
Ecology, the motion and appeal procedures spelled out in the ordinance were still underway and
17
available to the Petitioners. Because of this determination, the Board does not address other
18
issues raised in this appeal.l
19
20
21
I Although not essential to this decision, the Board does not agree with Petitioner's
assertion that he was owed specific notice by the County that the SSDP had been sent to
Ecology. RCW 90.58.140(4) requires a local government to forward a copy of the decision in a
SHB 05-029
ORDER ON MOTIONS 8
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1 All of the Respondents state the appeal should be dismissed because it is untimely, based
2 upon the date which the County filed the SSDP with Ecology. Regarding timeliness ofthe
3 appeal, the County argues that the Board does not have the statutory authority to review local
4 government decisions regarding the authority given to its hearing examiners. The County also
5 contends that the SMMP controls the appeals process at issue. The County reasons that LUPO
6 did not amend the County SMMP because Jefferson County never asked Ecology to approve
7 LUllO as an amendment to the SMMP. Therefore, the County contends that SSMP Section
8 18.25.690 is the controlling provision, which establishes a 30-day deadline from receipt of the
9 final order for filing shoreline permit appeals. Essentially, the County argues that it erroneously
] 0 directed the petitioner into the wrong review and appellate process, and was without authority to
11 do so, under its SMMP. See Declaration of At Scalf, Attachment 3.
12 Similarly, Trendwest and PLA assert that the Shorelines Hearings Board does not have
13 authority to consider jurisdictional decisions by the Appellate Hearing Examiner. They also
14 contend that the SSMP trumps other general code requirements.
) 5 WAC 173-27-130 provides that the final decision by the local government is filed with
16 Ecology. RCW 90.58.180(1) addresses service of a petition for review after the petition
17
18 timely manner to each person requesting a copy of the decision. The Petitioner was provided
timely notice of the Hearing Examiner's decision. Although it is unfortunate that there was a
19 problem in retrieving an e-mail response from the County, the County did not owe additional
notice regarding the filing of the SSDP. Petitioner should have been aware that the SSDP was
20 likely to be filed with Ecology shortly after the issuance of the decision. The Board reached this
same conclusion in Ferari v. Lewis County and Robert Thompson, SHB No. 05-033 (Order
21 Dismissing Appeal) (May 10, 2006).
SHB 05-029
ORDER ON MOTIONS
9
".'.......................e.
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pertaining to a final decision of a local goverrunent has been filed. RCW 90.58.) 80(2)
2 authorizes the Attorney General and Ecology to obtain review of any final decision of a local
3 govermnent granting a permit, or granting or denying an application for a permit. With respect
4 to appeals of local government decisions, the framework for shorelines appeals restricts the
5 Board's jurisdiction to only final decisions by local governments.
6 The Board has clear authority to determine whether the action taken by a local
7 government is ''final'' for purposes of appeal to the Board. In Morgan et at. v. Clark County et
8 at., SHB Nos. 05-008 & 05-009 (Order on Petitioners' Jurisdictional Motions)(August 1,2005),
9 the Board was faced with whether Clark County had made a final decision on a SSDP and a
10 conditional use permit for a proposed mine expansion. Although there were unresolved issues in
11 that case which could ultimately affect the activity conducted at the site, the Shorelines Hearings
12 Board found that the Clark County Board of Commissioners did make a final decision on the
13 shoreline permits after the hearing examiner employed by the County had made an initial
14 determination.
15 In this case, Jefferson County adopted LUPO with the stated purpose of establishing
] 6 procedures for the County to process land use applications. The ordinance states:
17 The procedures are designed to promote timely and informed public participation;
eliminate redundancy in the land use application review process; minimize delay and
18 expense; and help ensure the use of land in a manner consistent with County goals as set
forth in the Comprehensive Plan and development regulations.
19
Section 1, Attachment 4, Declaration of Al Scarf
20
21
SHB 05~029
ORDER ON MOTIONS
1()
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In Jefferson County. LUPO incorporates shoreline permits applications and appeals as
2 part of the permits subject to its review procedures. Section 6 of the ordinance divides land use
3 applications into three different categories. The "Type A" category only requires the Director to
4 make an administrative decision. Shoreline exemptions and SSDPs for primary uses are both
5 listed under this category.
6 Consistent with its stated purpose, Section 7 ofLUPO allows applications to be
7 consolidated. This section provides that:
8 A land use application that involves two or more permits may, at tile option of the
Applicant, be consolidated into a single process using the highest procedure required for
9 any permit included in the application.
10 Attachment 4, Declaration of Ai Scarf
11
Condominium subdivisions of five or more units and conditional uses are considered to
12
by Type B decisions. Type B decisions require the decision to be made by a Hearing Examiner.
13
Section 15.A. of L UPO mandates the use of the Hearing Examiner procedures for "Type Bland
14
use applications and all other land use applications considered under Type B procedures using
15
consolidated permit review." Because tile proposed project includes a SSDP (Type A decision)
16
and a condominium subdivision (Type B decision), the consolidated application process Wlder
17
LUPO requires a Hearing Examiner to review the SSDP in this case.
18
A further examination ofLUPO illustrates that the SSDP was subject to the entire LUPO
19
process, and that it was an error for the County to segregate the SSDP apart from the rest of the
20
consolidated application and transmit the permit to Ecology. Section 19 of LUPO contains a
21
SHB 05-029
ORDER ON MOTIONS
11
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1 chart showing the review procedures to be undertaken by the Hearing Examiner and the
2 Appellate Examiner. In the Appellate Examiner column, both ':fype A and Type B applications
3 contain an asterisk. The asterisk, as indicated in the key, provides "These decisions may be
4 appealed to Superior Court or the Shorelines Hearings Board in accordance with Chapter
5 36.70C RCW or Chapter 90.58 RCW." (emphasis added). No ~"Uch asterisk appears in the
6 Hearing Examiner column.
7 Furthermore, Section D.7. of LUPO states that "[t]he decision of the Hearing Examiner
8 shall be final unless, within fourteen (14) calendar days after issuance of a decision, a party
9 appeals the decision to the Appellate Examiner in accordance with this Chapter!' (emphasis
} 0 added). Nothing in LUPO suggests that the Hearing Examiner's decision regarding a shoreline
11 permit would somehow become a final decision if a timely appeal of this decision was made to
12 the Appellate Examiner. The "Appellate Examiner" is defined as "the individual who decides
13 appeals of Hearing Examiner Decisions," Section 2, Attachment 4, Declaration of Al Scalf
14 Section 5 ofLUPO contains specific exemptions from the review processes established in the
15 chapter. No exemptions are listed for shoreline cases. Thus, there is simply nothing in this
16 Ordinance that would give no\ice to a party that an alternative method of appeal applied, and that
17 a final decision had been made at the hearings examiner level for the shoreline aspects of a
18 permit.
19 In the present case, Jefferson County transmitted the SSDP to Ecology even before the
20 Hearing Examiner rendered his decision on reconsideration. Section CA. states that "[i]f a
21
SHB 05-029 '
ORDER ON MOTIONS
12
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tit
i timely and appropriate request for reconsideration is filed, the appeal period shall begin from the
2 date the decision on the reconsideration is issued." (emphasis added).
3 Respondents contend that the SMMP controls over LUPO because LUPO was never
. .lJ . 4 ..f..t._ ._~!1:__
6 permit appeals, is abW1dantly clear. Section 3 of this ordinance expressly states that:
7 The procedures for decision.making des("'l'ibed in this Chapter and in the Rules of
Procedure adopted under this Chapter supersede any conflicting procedures that may be
8 found in other chapters of the Jefferson County Code. This Chapter applies to existing
permit applications as well as to those that may be filed in the future.
9
1 0 Jefferson County established a two-tier appellate process with different hearing
11 examiners at each level for consolidated land use applications. Because a portion of this process
12 may occasionally include shoreline pennits does not require the incorporation of this entire
13 process as part of the SMMP.
14 . Even if the Respondents' argument that the SMMP controls over LUPO is accepted, the
] 5 Hearing Examiner's decision still does not constitute the final decision in this case. Section
16 18.25.480(2) and (3) of the SMMP authorizes the Hearings Examiner to take actions regarding
17 pennit applications under the Shoreline Management Act and the SMMP. Section 18.25.490(2)
18 provides that the Board of County Commissioners acts as an appeals board "with respect to
19 decisions by the hearing examiner issued within the scope of the master program." This includes
20 appeals of decisions regarding applications for shoreline permits. Section 18.25.490(1). If the
21 County concluded that there is no appeal to the appellate hearings examiner on shoreline
SHB 05-029
ORDER ON MOTIONS
13
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permitting matters, it should have directed petitioner to this alternative route of review prior to
2 transmitting the decision to Ecology.
3 Although Section 18.25.690 provides for appeals to be made to the Shorelines Hearings
4 Board, that section applies only after receipt of the fmal order. Respondents' suggestion that
5 Section 18.25.690 allows appeals directly from the Hearing Examiner to the Shorelines Hearings
6 Board would make language in Section 18.25.480 superfluous. When interpreting legislative
7 enactments, they should be read to give each word and clause effect so no part is rendered
8 meaningless or superfluous. Hangartner v. Seattle, 151 Wn.2d 439, 451, 90 P.3d 26 (2004). It
9 also fails to recogni?..e that Section 18.25.510(8) authorizes a person aggrieved by an action taken
10 on an application may appeal the decision in compliance with Section 18.25.680 and 18.25.690.
11 (emphasis added). Section 18.25.680 authorizes appeals before the Jefferson County Hearing
12 Examiner. As discussed earlier, Section 18.25.490 establishes the Board of County
13 Commissioners as an appeals board from Hearing Examiner decisions.
14 Trendwest also argues that other rules of statutory construction, including "the specific
15 controls over the general", should make the SMMP supersede the LUPO. Although this is a
16 widely recognized rule of statutory construction when two provisions cannot be harmonized,
17 Omega National Insurance Company v. Marquardt, 115 Wn.2d 416, 425, 799 P.2d 235 (1990),
18 in this case Trendwest has the argument backwards. The more specific process is the
19 consolidated review process established by LUPO to implement the Regulatory Reform Act.
20 This controls over the more general and earlier enacted provisions of the SMMP. In addition, if
21 statutory provisions conflict, the more specific and latest in order controls. State v. San Juan
SHB 05-029
ORDER ON MOTIONS
14
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County, 102 Wn.2d 311, 320, 686 P.2d 1073 (1984). Even if there is a question about
2 reconciling these two ordinances, Jefferson County expressly stated in Section 3 of LUPO,
3 which is entitled "Controlling Ordinance and Rules", that LUPO expressly supersedes any
4 cnntlictinll ordinance. The I",UPO provisions control the processing ofthis permit application
6 The Jetferson County Hearing Examiner cannot pick and choose what permits are subject
7 to full LUPO review. In Morgan, the Clark County Board of Commissioners was the entity
8 designated to make the final decision on the shoreline permits in question. If the Hearing
9 Examiner in that case had transmitted the permits to Ecology prior to the Commissioners' action,
10 it likewise would have been flawed because it was not a final decision by the County. Jefferson
I 1 County had not yet made a final decision regarding the SSDP in this case when the permit was
12 transmitted to Ecology prior to review by the Appellate Examiner, or alternatively, by the Board
13 of County Commissioners, acting as an appeals board.
14 A remand to the local government is usually the remedy in a case where there is a lack of
15 a final decision by the local government. Here, because of confusion and misdirection in the
16 application of the proper procedures for the shoreline permit, there is no final decision by a local
17 government sufficient to give the Board jurisdiction.
18
19
20
21
SHB 05-029
ORDER ON MOTIONS
15
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1 ORDER
2 The Motions for Summary Judgment are DENIED on all issues and the case is
3 REMANDED to Jefferson County for further actions, consistent with this opinion.
4
.,J1
5 Done this 11 day of ~_._ 2006.
6
7
SHORELINES HEARINGS BOARD
- J C'l)~
/JL~' J( 0:~
WILLIAM H. LYNCH, Presiding
8
9
10
k:~tu~b (Vi+-
KA THLEh"'N D. MIX, Membe,t
11
12
?:~~~
JUDY WlLsON, Member
~VR~:~~
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.....
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KE\7'JN.UN
13
14
15
16
17
18
19
20
21
SHB 05-029
ORDER ON MOTIONS
16