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HomeMy WebLinkAboutLog102 . , July 24, 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: We represent Lewis Hale, a property owner in Port Ludlow resort and party to the proceedings relating to the Ludlow Cove Division 2. On behalf of Mr. Hale, we submit comments on the amendment to the Port Ludlow Development Agreement (PLDA) proposed by Port Ludlow Associates, LLC (PLA) for the benefit of Trendwest Resorts, Inc. (Trendwest). SUMMARY OF COMMENTS PLA seeks to amend the PLDA to permit time share units in Tract E of the Port Ludlow Master Planned Resort (MPR). There is a problem: an amendment to the PLDA cannot and will not accomplish this purpose. The PLDA specifies that the Port Ludlow Master Plan Resort (MPR) is subject to MPR Zoning Code, now codified in Title 17 Jefferson County Code (JCC). The MPR Zoning designated Tract is a MPR-SF, a zone which does not allow multi-family or time share units. An amendment to the PLDA cannot authorize a use prohibited by the MPR Zoning Code. The MPR Zoning Code has to be amended or Tract E rezoned to a zone which permits time share units. Alternatively, PLA could demonstrate that its proposal is vested to a prior code which does allow time share units. There is a problem with this approach as well: the County's Appellate Hearing Examiner (Appellate Examiner) has found that the prior code did not permit time share units in Tract E. Jefferson County Appellate Hearing Examiner Decision on Ludlow Cove Division 2, File SUB05-00004, (Galt Decision). In December, 2005 PLA appealed Appellate Examiner's decision to Superior Court. However, it has not prosecuted its appeal. Rather, in spring, 2006, it chose to try to LOG ITEM # fA ~ Page,l of f . Stephen K. Casseaux, Jr. July 14,2006 Page 2 . circumvent the Appellate Examiner's decision by amending the PLDA.! But that takes us back to the first problem: the PLDA amendment won't accomplish this. Only an amendment to the MPR Zoning Code or a rezone will. The PLDA provides that the MPR is subject to the Land Use Procedures Ordinance adopted by Ordinance 04-0828-98 (LUPO). Despite this provision, we understand that staff had determined that the application should be processed under Title 18 as a recommendation by the Hearing Examiner to the Board of Commissioners (Commissioners). We ask you to recommend that the amendment be denied for at least four reasons: (1) As explained above, it does not solve PLA's problem. The proposed use - timeshare units - is predicated on vesting to the 1994 zoning code, the code that preceded the PLDA. An amendment to the PLDA cannot retroactively change the 1994 code. To authorize timeshare units, the County must either amend the MPR-SF zone, the zoning designation applied to Tract E by the PLDA, or rezone Tract E. (2) It conflicts with the final determination by the Appellate Examiner that the 1994 code does not permit time share units in Tract E. The Appellate Examiner is the County's officer with the highest level of authority to make a determination of uses permitted under the applicable development regulations. (3) It conflicts with the statute authorizing and governing development agreements, which requires that a development agreement: (a) be consistent with applicable Jefferson County GMA development regulations; (b) set forth the development standards and other provisions that govern and vest the development, use, and mitigation of the development. (4) It is inconsistent with the purposes of the PLDA to provide predictability and certainty for residents of Port Ludlow, not just its developer. Below we address each argument in more detail. 1 The recitals to the proposed amendment make clear that PLA seeks to substitute the proposed new development regulations for Tract E for the regulations to which the 1995 applications were vested. Proposed Amendment, Recital 1. . Stephen K. Casseaux, Jr. July 14,2006 Page 3 . DETAILED COMMENTS The Problem Trendwest wishes to develop a 120-unit time share project on Tract E of Port Ludlow. As required by RCW 36. 70B.170(1), the PLDA sets forth the development standards and other provisions that govern and vest the development, use, and mitigation of development of the MPR. Those regulations are now codified in Title 17 JCC.2 They apply the MPR-SF zone to Tract E , a zone which permits single family uses, but does not allow either multi-family uses or transient accommodations. JCC 17.10.020-.030. No one asserts that the proposed timeshare units are single family uses. Thus, the only ways for the Trendwest proposal to proceed are: (1) for it to be vested to a Code which permitted the desired use, timeshare units; or (2) to amend the regulations applying to the MPR, not the development agreement. In its March 3, 2006 letter to the Board of Commissioners initiating the PLDA amendment (PLA Letter), PLA recognizes the problem -- it states: PLA and Trendwest believe that timeshare structure and uses are multi-family residential structures and may be developed within Tract E to a vested density of up to sixteen (16) timeshare units per acre of land... PLA Letter, p. 2 (emphasis added); see also, proposed Amendment, Recital B. Having conceded at least tacitly that its proposal requires vesting to the 1994 code, PLA then asks that the Board of Commissioners to amend the PLDA to permit timeshare units in Tract E. PLA Letter, p. 2. But amending the PLDA does not retroactively amend the development regulations to which development of Tract E is vested. The amendment, even if it were proper, would not solve PLA's problem. Confounding matters further, PLA then contends that the PLDA amendment does not require an amendment to the MPR zoning code or comprehensive plan. PLA Letter, p. 2. We are baffled. As we have pointed out, the MPR code applies the MPR-SF to Tract E. The MPR-SF zone does not allow either multifamily or timeshare units. Consequently, the MPR-SF zone would need to be amended or the property rezoned to permit timeshare units. 2 PLDA ~ 3.1; Jefferson County Appellate Hearing Examiner Decision on Ludlow Cove Division 2, File SDB05-00004, (Galt Decision), Finding 3. . Stephen K. Casseaux, Jr. July 14,2006 Page 4 , The County Has Rendered a Final Determination that the Regulations to Which Tract E is Vested Do Not Permit Timeshare Units Several years prior to the County's adoption of the PLDA, in January 1995, Pope Resources, PLA's predecessor in interest, filed three applications: (1), SUB95-0003, a subdivision; (2) ZON95-00l, a conditional use permit for unspecified multifamily residential development on Tracts A and B of Ludlow Code; and (3) SDP97-009 a substantial development permit for the subdivision. The County determined the applications to be complete on January 19, 1995. When these applications ultimately proceeded to a hearing in 2002, the Hearing Examiner found that, despite many revisions, they remained vested to the regulations in effect in January, 1995 (referred to herein as the 1994 Code). Tracts A and B were subsequently combined into Tract E. Galt Decision, Findings 2-6. In January, 1995 what is now Tract E was zoned G-l zone, a zone which allowed, as a conditional use, multifamily development with a maximum density of 16 dwelling units/acre. Galt Decision, Findings 5, 10, and 11; Conclusion 10. In 2002, the Hearing Examiner approved the applications. Galt Decision, Finding 5. Ten years later, in January, 2005 PLA submitted applications for a l20-unit condominium development on Tract E. Galt Decision, Finding 8. In May, 2005 it resubmitted the applications changing the proposed use to a l20-unit time share multifamily development. Galt Decision, Finding 9. PLA and Trendwest took the position that these applications were also vested to the 1994 Code, presumably as the completion of the 2002 approvals. However, the 1994 G-l zone did not permit transient accommodations. The Hearing Examiner approved the 2005 applications, finding that time share units were a permitted multifamily use and not a hotel or other commercial use. Galt Decision, Finding 11. Our client appealed that decision to the Appellate Examiner, presenting the following issue: whether the Trendwest Resort is a 'multi-family residential development' or 'transient accommodations.'" Galt Decision, Finding 14. The Appellate Examiner concluded that the proposed use was not a multifamily residential development and, thus, was not permitted under the 1994 regulations to which the applications were vested. Galt Decision, Conclusions 1 and 18-21. The Appellate Examiner is the County's officer with the highest level of authority to make a determination of uses permitted within the Port Ludlow Master Planned Resort. LUPO S18.D.7; Galt Decision, p.ll. . Stephen K. Casseaux, Jr. July 14,2006 Page 5 , In December, 2005, PLA and Trendwest filed a petition under the Land Use Petition Act (LUP A), in Jefferson County Superior Court appealing the Appellate Examiner's decision.3 In their application for the PLDA amendment, they argue that the LUPA appeal (their own appeal) could delay the project significantly at ~reat expense to themselves. However, they have not prosecuted the LUP A case. In summary, the County has made a final determination that the 1994 Code to which the 1995 applications were vested and on which the 2005 applications depend does not permit a timeshare use. PLA and Trendwest cannot change this result by amending the PLDA. Amending the Development Agreement Is Not Sufficient The PLDA was adopted under chapter 36.70B RCW. Jefferson County Resolution 42- 00, (Resolution 42-00) Recital 4; PLDA, S 1.3.3. A development agreement must be consistent with the applicable County GMA development regulations and must specify the development standards to which the project is vested. RCW 36. 70B.170. 5 The permitted uses are set forth in the Port Ludlow MPR Zoning Code chapter of the Jefferson County Code. PLDA, S 3.1. As we have pointed out several times above, the MPR Zoning Code designates Tract E as MPR-SF, a zone which does not allow time share units. Thus, for Trendwest to proceed, the County must amend the MPR-SF zone to permit this use or rezone the property a zone which does allow time share units. In either event, vesting is lost and the proposal is subject to all the current development regulations. PLA and Trendwest cannot pick and choose between old and new zoning codes. 3 PLA characterized these events as a dispute between 3 property owners within the MPR on the one hand and PLA, Trendwest, and the County on the other hand. March 3, 2006 letter from PLA to Commissioners, p. 2. This attempt to belittle the other parties is not only irrelevant and unprofessional, it is incorrect. For the purposes of LUPA, the Appellate hearing Examiner is the County. It is PLA and Trendwest who have a dispute with the County. 4 They have not even set the preliminary hearing date was supposed to have been held no more than 50 days after the filing of the petition. RCW 36.70C.080. Had they prosecuted their own case, they most likely would have had a decision by now. 5 The Board of Commissioner found that the PLDA was consistent with the County's applicable GMA regulations. Resolution 42-00, Recital 6. See also, PLDA ~ 1.3 .11. . Stephen K. Casseaux, Jr. July 14, 2006 Page 6 . The Amendment Sought Contravenes Many Purposes of the PLDA The PLDA repeatedly emphasizes the importance of planning and predictability not only to the parties to development agreement, but also the residents of Port Ludlow. 1. One of the stated purposes of the PLDA is to further the public health, safety, and welfare by allowing development to take place in a predictable manner consistent with the Comp Plan and MPR Code. Resolution 42-00, ~ 1.0 (emphasis added). 2. Coordinated planning of the MPR provides unique opportunities for the benefit of the County and existing andfuture residents of the MPR. PLDA, ~ 1.3.9 (emphasis added). 3. Section 1.3.13 is instructive: Build out of the Pope Property is expected to occur over the next ten to twenty years. Pope, Jefferson County, Port Ludlow community groups and members of the public at large will invest considerable time in the County permit and review process for the future build out of the Pope Property. A development agreement is an appropriate way of providing certainty over time with respect to permitted densities, uses, development standards and other aspects of the development reVIew process. Time share units are not permitted by the MPR code. Permitting them now in an area which has been designated for single family uses for more than six years hardly promotes certainty and predictability for who have invested in Port Ludlow. Nor as the records before the Hearing Examiner and Appellate Examiner demonstrate, does it benefit them. Rather, as Mr. Hale argued to the Appellate Examiner, a time share facility such as that proposed by Trendwest is not a facility where people live/reside and become members of the community, but merely come to vacation. Each unit will be occupied by up to 50 different families or groups of individuals each year. The impacts to existing and future residents would be significantly greater than either the uses permitted in the G-l zone or the single family uses permitted by the current zoning. . Stephen K. Casseaux, Jr. July 14, 2006 Page 7 , For all of these reasons, we ask that the Hearing Examiner recommend denial of the PLDA amendment. IfPLA and Trendwest wish to build time share units, they should prosecute their LUP A case or seek the proper approvals - an amendment to the zoning code or a rezone. Sincerely, Alison Moss Enclosures 1. Jefferson County Appellate Hearing Examiner Decision on Ludlow Cove Division 2, File SUB05-00004. 2. March 3, 2006 letter to the Board of Commissioners initiating the PLDA amendment. 3. PLDA. cc: Lewis Hale (w/o enclosures) Marco de Sa e Silva (w/o enclosures) Don Marcy (w/o enclosures)