Loading...
HomeMy WebLinkAboutLog099 e Barbara Nightingale From: Powers & Therrien [powers_therrien@yvn.com] Sent: Monday, July 24,20063:24 PM To: AI Scalf; Barbara Nightingale Cc: Powers & Therrien Subject: Les Powers' Comments to MLA06-00221 SEPA Response e Page 1 of 1 Please find attached for filing in your usual manner Les Powers' comments to the SEP A Response. Thank you. Diane Sires Legal Assistant POWERS & THERRIEN, P.S. 3502 Tieton Drive Yakima, WA 98902 Phone (509) 453-8906 Fax (509) 453-0745 This email is covered by the Electronic Communications Privacy Act, 18 V.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. 7/26/2006 # Page ~GrTEM / of tr:.' e - July 24, 2006 Via Email MR. AL SCALF MS. BARBARA NIGHTINGALE Jefferson County Department of Community Development 621 Sheridan Street Port Townsend, W A 98368 Re: MLA06-00221 Dear Mr. Scalf and Ms. Nightingale: I received a letter from the Department of Community Development ("DCD") directed to "Reviewer". I do not know if I meet that qualification, but I hereafter set forth my comments on the consolidated application identified above. By way of summary, the materials that you provided consisted of a cover letter, a consolidated permit application covering building permits and a shoreline master substantial development permit ("SSDP"), a separate JARPA application, a series of plans associated with the SSDP, and a DCD Staff Report dated August 9, 2005 (the "Staff Report") addressing the proposed project prior to the open hearing thereon before Hearing Examiner Berteig in August, 2005. You propose to issue a modified determination of non significance in the form originally issued and recommended by DCD Staff and rely upon the Staff Report. Let me first address the status of the proposal as I understand it. This is the same proposal made by Port Ludlow Associates, LLC ("PLA") in association with Trend West in early 2005. It proposes to construct "a 120-unit time-share multifamily residential development" consisting of six structures. The structures are supported by an internal trail system, pools and an exercise room. According to Mr. Helm who spoke for Trend West at the workshop (the "Workshop") before the Jefferson County Board of County Commissioners ("BoCC"), the internal recreational amenities are minimal and the project relies on public recreational amenities to be provided locally. He gave by way of example, in addition to the golf course, the renting of sail boats at the marina.) Mr. Helm stated that the average stay of a Trend West guest at the resort is three days at a time, that Trend West managed a vacation club in which members joined by purchasing perpetual vacation points that may be traded sometimes with additional cash for vacation stays at any of 6,000 or so vacation units ) I was unaware that any sail boats were for rent. I am told there is one that is so available (only for charter, not self sailing). The only other public concession at the Marina is its canoes and kayaks. Other than a crane system, there is not even a location to launch a boat in Ludlow Bay. 1 , e owned by Trend West's affiliated exempt organization. I understood from his explanation that the exempt organization was a membership organization and that the members were members therein. Mr. Helm said that there were more than 250,000 members. He also said that members paid annual fees that defrayed costs of operating the various vacation properties owned by the exempt organization. Although Mr. Helm referred to the units as time share condominium units, they are neither owned in residential condominium ownership nor do the members have time share rights therein.2 Mr. Helm admitted that the membership interest did not pertain to anyone or more vacation property or unit, did not entitle a member to use anyone or more units at any particular time, and actually only entitled the members to exchange points associated with the membership for the use of units in vacation properties on an as available basis? The number of points required to use any property, he said, is a function of the value of the unit as established from time to time by Trend West and its exempt affiliate. The more popular a resort, the greater the number of points required to use units therein. Mr. Helm said that he expected the facility to have 35 or more full time employees receiving benefits from Trend West. 4 He said that he expected the facility to be more than 85% occupied assuming an occupancy of four persons per unit. He said that he expected the guests to make use of the golf course and other local recreational opportunities as well as local retail and to generate needed revenue in the Port Ludlow area.s He said that the average earnings of Trend West members was about $85,000 per year. PLA represented at the Workshop that it was losing money on the golf course, the Harbormaster Restaurant and the Inn and would not suffer losses indefinitely.6 PLA 2 This follows because the members do not have an ownership interest in the units themselves and do not have a right to use anyone or more units any specific amount of time during a three year period. Please note that the proposed amendment no. I ("Amendment 1 "), Sec. I (c), to the development agreement of May, 2000, between PLA and Jefferson County respecting the Port Ludlow Master Planned Resort (the "MPR") defines time share to require the right to use one or more units some specific times during a three year period, a right that does not obtain under the Trend West vacation point program. See RCW 64.34.020(9); RCW 64.36.010(11); Amendment 1, Ordinance 04-0526-92 (the "Subdivision Ordinance"), Sec. 2.50(11), and Comprehensive Plan, p. 0-17. The definition of condominium in the Subdivision Ordinance requires that the units be individually owned and that the owners of the units own in common the common areas. This obviously does not describe members in the Trend West system that own vacation points. The definition of time share in the Comprehensive Plan is not met because there is no sharing of operating expenses or rents as contemplated thereby. Thus, even if Amendment 1 were approved, it would be subject to legal challenge if PLA or Trend West attempted to develop the proposed project under its aegis. 3 What Mr. Helm did not say and what is the case is that the units are rented to nonmembers when not occupied by members in the same manner as any hotel or resort and that the members are entitled to use cash instead of points to pay for the use of the units. The units are scheduled through a reservation system indistinguishable from any resort or hotel except that the principal market is the members ofthe exempt association and not the public in general. 4 The number of employees is consistent with a hotel or resort providing laundry and other support services to guests and not a condominium project that would have few if any full time employees and then only for maintenance and groundskeeping. By way of example, the Townhouse Association which has twenty five units does not even have one full time employee equivalent. 5 I believe Mr. Helm said and in any case, Mr. Verrue has stated that the expectation is that Trend West will add seventy or so golfers per week to the golf course. 6 Mr. Verrue has stated that the golf course currently loses about $400,000 per year. It has 217 full members. Mr. Verrue admits and I understand from personal inquiry that it is the case that a golf club 2 , - further represented that with the Trend West project, it had received interest by one or more grocery stores to open a facility at Ludlow Bay. There is little doubt that the Trend West program does not involve anything remotely resembling timeshares or residential condominiums. It is a private resort. The capital is provided by selling membership units with associated perpetual points to be exchanged alone or with additional cash for the right to use the resort facilities owned by the exempt membership organization. It is a variation on the resort theme operated by Starwood and Marriot. What it is not is residential housing. What it does not do is provide guests or owners with a connection to the community that is contemplated with respect to non transient housing. In the final action by Jefferson County denying the consolidated permit application on this project on the basis of zoning, Mr. Galt properly concluded that the project was equivalent to a resort or hotel and not a residential use to which Ludlow Cove II is zoned.7 What is also significant here is that it is a private hotel or resort serving principally its members and not the general public. Its limited amenities and trails are not open to the public. Neither does it provide parking to the public for use of its beach. 8 Nor is Trend West willing to make it subject to common covenants, conditions and restrictions for the benefit of all of the residents of Port Ludlow.9 Moreover, it is not a part of any of the associations at Port Ludlow and does not share in their amenities. It is not part of North Bay or South Bay. It has no rights to use the Beach Club, the Bay Club or their respective parks, beaches, swimming, tennis or other facilities.lO In other words, the core recreational facilities generally available at Port Ludlow are not available to the guests of Trend West. While Trend West is clearly designed as a commercial venture and is clearly in the business of providing short term housing, it does not as its principal purpose provide them to the public as a whole and is not at all integrated into Port Ludlow except as it can use Port Ludlow's very limited public facilities for its business purposes. )) needs 600 full time members to break even. Only one permanent membership will be associated with Trend West. In other words, Trend West guests only pay green fees, not dues. Memberships, on the other hand provide both green fees and dues that pay for capital costs and maintenance. Mr. Verrue further admitted that the combined losses PLA is suffering in the golf course, Rarbormaster and Inn are about $1,000,000 per year. 1 have not verified Mr. V errue' s statement. 7 Decision of AHE Galt on December 7, 2005, Conclusion 21. 8 Log Item 41. 9 The PL VC agreed to support Trend West under the condition that it submit to a set of CC & Rs that made its use compatible with the MPR. Trend West declined. 10 While one tennis facility is owned by PLA it has been leased to the SBCA under the condition that it is open to the users of the golf course and the Inn. It is unclear whether that use extends to Trend West guests. Moreover, the Bay Club and the Beach Club are private and open only to members. The trail s(stem is operated by the PLVC. Trend West has elected not to be subject to the PLVC. 1 Conceptually, Trend West violates the entire notion of a master planned resort. A master planned resort is an integrated planned unit development emphasizing a public resort facility. RCW 36.70A.362 provides in relevant part: An existing resort means a resort in existence on July 1, 1990, and developed, in whole or part, as a significantly self-contained and integrated development that includes short-term visitor accommodations associated with a range of indoor and outdoor recreational facilities within the property boundaries in a setting of significant natural amenities. 3 , - Among the factors which should be considered by DCD in making its threshold determination is whether the proposal is consistent with the legal requirements applicable to a master planned resort. 12 Even if the proposed amendment to the Development Agreement could execute a change in the zoning of Ludlow Cove II to permit a Trend West Resort, the Staff Report submitted in support of the MDNS in August, 2005, cannot be used to support an MDNS for the consolidated permit application. This follows because the Staff Report and conditions associated with the MDNS were based on conclusions that were ultimately rejected by Mr. Galt in the final action of Jefferson County on the project. The Staff Report concluded that Ludlow Cove II was vested in conditional use of multifamily zoning with a density of sixteen units to the acre in 1995 based, apparently upon Mr. Berteig's 2002 opinion.13 It further concluded that the MPR Code which zones Ludlow Trend West is a private hotel operated on a nearly freestanding basis in the midst of residential development that itself is only supposed to exist as a subordinate and supportive development for the resort. See RCW 36.70A.362; JCC 18.15.123(1). It is clear from the discussion of master planned resorts in the Comprehensive Plan that integration and self containment and support are critical concepts. That notion is carried over in the requirements of new master planned resorts. See Comprehensive Plan, LNG 25, 26; JCC 18.10.130. Consistent with RCW 36.70A.362, it states: "Master planned resort" means a self contained and fully integrated planned unit development in a setting of significant natural amenities, with primary focus on destination resort facilities consisting of short-term visitor accommodations associated with a range of on-site indoor and outdoor recreational facilities. A master planned resort may include other residential uses within its boundaries, but only if the residential are integrated into and support the on-site recreational nature of the resort. (cf. RCW 36.70A.360). Integration and concurrency in development and the self standing nature of a master planned resort are confirmed at JCC 18.15.126(1)(b), (h), (i); 18.15.135(3), (4), (5), and (7). While the MPR predates the provisions of the Jefferson County Code cited herein, these are consistent with the Comprehensive Plan that is binding on the MPR as well as the definition of a master planned resort that is contained both in RCW 36.70A.360 and 36.70A.362. The notion that there can be a master planned resort with a private resort, albeit open to a large membership violates the concept of a public resort embedded in the enabling statutes. 12 JCC l8.40.800(2)(c) provides that DCD may deny or condition approval of the project under WAC 197- 11-660(1)(a) and (f), inter alia based on its consistency with the policies set forth in one or another provision of JCC 18.40.800(3). These include the Comprehensive Plan, the Shoreline Management Program, and the UDC. For certain purposes, the MPR Code, Title 17 of the JCC, is incorporated into the UDC. See JCC 18.15.138. The policies and requirements of integration, self containment, concurrency and purpose applicable to master planned resorts are set forth in the UDC, principally, at JCC 18.15.] 26, 129, and 135 and in the definition ofa master planned resort at JCC 18.10.130. It takes little review to show that a Trend West Resort is discordant with the notion of a master planned resort. At the very least, JCC 18.40.800(2)(c) appear to call to question whether a Trend West Resort is legally permissible and, if not whether the development should be denied consent or should be given consent with conditions on the use of the Trend West facilities and investment in public service infrastructure that should accompany such a development. The present proposal, based on a Staff Report that concludes that a Trend West Resort is a permitted residential use simply does not address in analysis or conditions the legal requirements. 13 The conclusion in Mr. Berteig's 2002 opinion that Ludlow Cove]] was zoned single family or general with a multifamily conditional use under the IUGA is in error. The property was originally zoned multifamily in the IUGA. I raise this matter not because it changes the result but because it shows the lack 4 , e Cove II as single family residential with a maximum density of four units to the acre does not apply. 14 It concluded that the proposed use as a timeshare is '''in between' standard residential use and a purely commercial use" and that "the facility is more like a regular multifamily use than a commercial use.,,15 It concluded because the MPR Code does not apply, there is no requirement that it be integrated into the resort. 16 By operation of these conclusions, no conditions were placed on the project relating to the integration thereof into the resort, the density limitations applicable under the MPR Code, or limitations on commercial use of Ludlow Cove II in the conditions to the MDNS. Mr. Galt denied the approval of the Trend West Resort in his opinion of December 7, 2005. Therein, he included that the application vested in 1995 pursuant to Mr. Berteig's 2002 opinion that was not appealed. He questioned however whether there was a binding site plan as part of the application. 17 Mr. Galt remanded to Mr. Berteig "to determine whether the 2005 binding site plan land division application is or is not vested in 1995 regulations, with consideration of the merits of that application to follow subject to the applicable regulations."I& Without such a binding site plan, the present proposal did not vest in 1995 and would by implication be subject to the MPR Code. Mr. Galt further of detailed review of the project in 2002, largely because there was no opposition and the actual conditional use, other than multifamily, was never disclosed. Mr. GaIt concluded that the failure to disclose the conditional use in the 2002 opinion was fatal even under 1995 law, assuming that it vested therein. 14 Staff Report, Para. 21, 22. One need only read the recitals to the MPR Code to see how wide of the mark this conclusion is. The Seventh Recital states: Whereas, Olympic Resource Management has agreed that vested preliminary plat applications within the Master Planned Resort shall be subject to the terms and provisions of this ordinance. . . Moreover, in the Development Agreement which PLA and Jefferson County executed states "The permitted land uses, regulatory standards and density standards for development within the Pope Property are set forth in the Port Ludlow MPR Zoning Code chapter of the Jefferson County zoning code, attached as Appendix A." The Pope Property includes Ludlow Cove II. See Development Agreement, Sec. 2.1-2.3 and Exhibits 1-3. The Development Agreement at Sec. 3.13 provides that "all development proposed on Pope Property shall be vested to and governed by the Port Ludlow MPR chapter of the Jefferson County Zoning Code.." Given that PLA signed this very Development Agreement, I do not think there is any credible argument that the MPR Code is not the applicable zoning code for Ludlow Cove II or that any other vesting can apply. PLA's actions go beyond waiver. PLA affirmatively agreed to that the MPR Code applies to Ludlow Cove II. So did Jefferson County. To modify this result, the successors in title to and assigns of Pope, would have to concur in writing. These include not only the lot purchasers but also the PL VC, itself the grantee of conditions, covenants, and restrictions that apply to Ludlow Cove II as well as the rest of the MPR. They were prepared by counsel for Pope Resources and filed simultaneously with the Development Agreement under County Auditor's File No. 435975. PLA has not provided evidence of written consents from the remaining necessary parties to an amendment to the Development Agreement. It is not just a question whether PLA's application is vested under 1995 law but whether PLA would breach the Development Agreement by developing the property other than as it agreed to do under the Development Agreement. It may very well have a vested right in the application; that right does not extend to a right to breach a civil contract, the Development Agreement. 15 Staff Report, Para. 23-30, and, particularly, 30. 16 Staff Report, Para. 31. See discussion, Footnote 14. 17 AHE GaIt Opinion, Para. 5, 7, 8. 18 AHE Galt Opinion, Para. 9. While Mr. Berteig replied concurring in his prior opinion, in March, 2006, that reply remains stayed until the disposition of the pending LUPA Petition of Mr. Galt's opinion. In the workshop, Mr. De Sa e Silva concurred in that conclusion. 5 , e concluded that a conditional use permit which might have permitted a sixty four multifamily unit proposal that was apparently then contemplated would not protect a one hundred twenty unit multifamily development proposal. 19 Further, Mr. Galt concluded that the zoning regulations in effect in 1995 would have required a site specific development plan that was not included in the application as to Ludlow Cove II.20 Mr. Galt finally concluded that the Trend West guests purchased points to exchange for rooms and pay compensation for rooms, that they are transient in the sense they do not have the connection with the community that would be the case even with an apartment renter, that the use is that of a resort which is included in transient accommodations under the applicable zoning code, and that the use proposed by Trend West does not qualify as a condominium.21 Based on any analysis, Mr. Galt concludes that "the Trendwest proposal is a transient accommodation resort, not a multifamily residential development. Transient accommodations are not allowed under either the 1995 G-l zoning nor under current single family residential zoning. The Examiner's acceptance of the position that Trendwest's proposal I s a multifamily residential development was clearly erroneous." 22 Because Mr. Galt's opinion conflicts the conclusions in the Staff Report as to the proposed use, permitted density, and vesting as it applies either to the binding site plan, it cannot be used to support the conclusion that the project now complies. Clearly, the project does not currently comply. It does not do so for legal and underlying substantive reasons. The substantive reasons go to density and intensity of use, nature of occupancy and its relationship to the community, all environmental factors to be considered under WAC 197-11-444.23 They are not considered in the Staff Report because it wrongly concluded that the use was legally permitted and that it accordingly did not need to consider the substantive results of allowing that use. The confusion about permitted use, if not the substantive issues that are raised, are subject to confusion. This Mr. Galt admits. At the very least, the proposal should require more than an MDNS to flesh out the implications of the various zoning that could apply to Ludlow Cove II depending upon a determination whether the application in 1995 included the presently proposed binding site plan, and if it did not, whether the property vested under the Development Agreement. Even if a binding site plan may be considered as a conditional use permit, it requires a level of review applicable to conditional use permits in 1995 that is not evident in the Staff Report. The Staff Report cavalierly dismisses the comment of the Jefferson County Sheriff indicating inadequate police staffing to protect public safety24 and the comment of Mr. 19 AHE Galt Opinion, Para. II. 20 AHE Galt Opinion, Para. 12. 2! AHE Galt Opinion, Para. 17-20. 22 AHE Galt Opinion, Para. 21, 22. I believe the property was actually zoned multifamily in the IUGA. See Attachment D-I, Ordinance 01-0117-95. 23 It is this factor to which Mr. Stewart avers when he discusses the conflict between the proposal and zoning. He aims at commercial use of the property, an intensity of use not contemplated in the Development Agreement or under any prior application for its use. This is one of the core issues that lead him to conclude that the DOE opposes the project. See Log Item 41. 24 Log Item 23. 6 , . Stewart indicating that the proposal was for a commercial use incompatible with its permitted use.25 The first, the Staff Report viewed as incremental.26 The second, a mistaken undertaking by Mr. Stewart of land use issues that are not part of his domain.27 However, neither comment is accurate. Incremental suggests that police protection is provided in stages as the MPR develops as a whole. However, the Sheriff concluded that there were no police at all. This is not a question of staging; it is a question of investment. Surely this issue deserves more attention, in light of the recent break in of most of the offices in the commercial section without any police intervention (plus additional break-ins at the Beach Club) and in light ofPLA's commitment under the partial mediated settlement agreement to assist the residents in obtaining adequate police protection. A project such as Trend West exacerbates the absence of police. It will introduce, according to Trend West's own admission, 350 to 400 different people every three or four days, none with any ties to Port Ludlow other than as a vacation. Only about 70 a week will be golfing. A number, perhaps half, will be under age. There are no public entertainment facilities available to them locally. Does this not suggest the need for more police? My comments are not simply the result of hysteria as Mr. Berteig claims,zs It is quite predictable that 200 or so different young people around Ludlow Bay will create problems, particularly in the absence of public beaches and the prevalence of residential units used on an irregular basis as vacation homes. Those residences are more, not less vulnerable than the commercial section that the Sheriff obviously cannot now protect. The Staff Report is clearly deficient in its treatment of this issue. The second issue, the comments raised by Mr. Stewart that the Staff Report dismissed as outside his jurisdiction need closer examination. More intense use, a finding of Mr. Galt, means more pressure on the shore land and more pressure on the estuary of Ludlow Creek, a salmon bearing stream, and the mud flat at its entrance.29 This issue was not addressed in the Staff Report. Neither was the reference in Mr. Stewart's report of the requirement of public access to the water's edge. The dismissal of Mr. Stewart's comments on the basis that the contiguous water is not protected cannot be taken seriously. The SSDP protects the water which is within the jurisdiction of the State by protecting adjoining land to a depth of 200 feet. 30 Clearly the project is within that land. The notion that other access to the beach satisfies the water access requirement conflicts with the view that Ludlow Cove II is not part of the MPR.31 Finally, Mr. Stewart raises issues such as the requirement of a National Pollution Discharge Elimination System permit because the project exceeds five (5) acres. The need for this permit is denied in 25 Log Item 41. 26 Staff Report, para. 73. 27 Staff Report, para. 44. 28 HE Berteig's opinion on the undersigned motion for reconsideration of his September 2,2005 opinion on Ludlow Cove II. 29 Ludlow Creek and the surrounding area received a protected classification because of its environmental sensitivity. It is questionable to me how the proposed Trend West use is consistent therewith. This should at least be further developed by the Staff Report. 30 Staff Report, para. 47. 31 Compare Staff Report, para. 22 and 31 with 46. 7 , . the consolidated permit application. However, this does not end the inquiry. The project increases the impervious layer to 38% of the whole property. That is a sizeable amount. It is bound to create runoff. The runoff will be from asphalt, parking, and other sources of oil, contamin;;tnts and nutrients, all of which will affect water quality. It is hard to see why some or all of that runoff will not wind up in the estuary to Ludlow Creek. Substantively, this issue should be addressed. Other than ICAO setbacks, the Staff Report does not adequately do so. Attention is finally drawn to the apparently incomplete nature of the consolidated permit application. The copy I received only covered building permits, an SSDP, and a JARPA permit. It did not independently contain binding site plans. While there were site plans associated with the SSDP permit application, they clearly applied to that purpose. The application is associated with a proposed amendment to the Development Agreement to permit the proposed nonconforming use of Ludlow Cove II. Where are the permits, binding site plans, or proposed plats that tie the proposed one hundred twenty unit six building project to Ludlow Cove II? Even the material that is contained does not explain how conditions of one independent permit application, JARP A that must be submitted to WFW will be integrated into the project prior to a final SSDP Application. The SSDP application cannot issue until all underlying permits except building permits needed for the project's development have been approved.32 Considering that both JARPA and the SSDP contain or may contain conditions that should be addressed in the Staff Report, how can the a staff report proposing an MDNS for the project issue without more information on these two permits. This issue is far from neutral. In the major revision, we find the application incomplete after nearly three years because the same developer did not complete the information required for an HP A. The loose nature of the permit application invites further downstream problems in the processing thereof. It also makes difficult or impossible the evaluation of the consolidated permit application for purposes of making a threshold determination. The issues addressed herein have environmental effects that should be addressed in the Staff Report and conditions to any MDNS. In my view, they strongly support the need for an environmental impact statement. A DNS or MDNS should issue only where the matter is sufficiently strai~htforward that the time involved in an environmental impact statement is not justified.3 Environmental issues include public services and utilities, including police, land and shoreline use, water and stormwater, housing, aesthetics, recreation, environmental health, fish and wildlife, water, runoff and absorption, and erosion.34 Mr. Galt and inferentially Mr. Stewart already identified intensity of use as a factor. It is pervasive to the foregoing. Mr. Galt's conclusion is a factual finding that is binding on this project. The response about the need to integrate the project recreationally cannot be dismissed as the Staff Report has sought to do by concluding that 32 Jefferson County Master Shoreline Program, Sec. 6.40. 33 The test to a DNS is "there will be no probable significant environmental impacts from a proposal." See WAC 197-11-340(1). To issue an MDNS, the test is that the mitigation proposed by the proponent sufficiently addresses the probable significant environmental impacts. See WAC 197-11-350. 34 WAC 197-11-340(1)(a)(v), l(c)(ii), l(d)(iii), 1 (e)(v), 2(a)(iii), 2(b)(i), (ii), (iv), and (v), I(c)(iv), l(d)(ii), I (d)(iv), (vii), and, (ix), 8 -, . the property is not ~art of the MPR. As Mr. Galt notes, the application may be vested, the property is not. 5 Clearly the absence of meaningful recreational opportunities admitted by Mr. Helm is sufficient to raises the issue. It is admittedly substantial, likely and not mitigated. It is not even dealt with in the Staff Report. Neither are issues of police protection. When the Sheriff indicates a need, how can it be dismissed as incremental. Does not a break in of almost every office in the commercial zone without police intervention suggest a need. Doesn't the analysis of Mr. Helm confirm the need. Certainly PLA agrees that there is a need. Why else would it join in the partial mediated settlement agreement to demand same? Finally, how does anyone square this project with the statutory requirements and the Comprehensive Plan requirements for a master planned resort. Surely it is more than just an excuse to build an unregulated subdivision and leave town. Attention needs to be paid to the integration of this use into the MPR. This requires conditions, now absent as to access to the beach, development of recreational opportunities, development of public services and development of retail concurrently with approval of such projects. There is no attention to any concurrency issues in the Staff Report. At minimum it must be addressed. I think these issues need to be revisited. I am not certain that an MDNS is appropriate. Certainly the current Staff Report does not provide support for same. Based on the foregoing, I urge that an MDNS not issue, at least against the Staff Report and that a substantive analysis of the issues raised herein be undertaken with a view to developing conditions that integrates the project into the MPR and that adequately protects the sensitive estuary located on the property. Denial does not resolve existing problems. I incorporate by this reference my comments to notice of even date to the proposed amendment to the Development Agreement. I will not restate the analysis therein contained but ask that it be considered where relevant to issues herein. Among such issues is the right of private property under the Growth Management Act that is abridged by an amendment adopted without the consent of the residents who are affected thereby. 36 ~~-c;':I'#d~f) Leslie A. Powers 44 Heron Road Port Ludlow, W A 98365 35 ARE Galt Opinion, p. 14. 36 See RCW 36.70A.020(6). This applies to rights under CC & Rs that apply to this property. Their application is not a function of land use law but a substantive property right. See Viking Properties v. Holm. 155 Wn.2d 112, 128, 118 P.3d 322 (2005) 9