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Home My WebLink AboutLog116 POWERS & THERRIEN Illl h-B 'I '1"1'j1"IIIJ''''''"I'''1'9"11 ""II'IE!I-'!!''''' ''')'~I '''''"H)~'''''lIl~I!J'~I''lf'''I''''''1 f. ", --"'I' ) "',, '''f',,' "'.' , >I', "" .' ,t~"li!I~I;r~l~ ,(~, t~rp1 ~1~:H~fh'l~m~lt,~:1;~~I"l/,I)lif~j:~t" ;~,:L f;~\~PI~1t)!~!t1: ~N,.;I< I~~ 'f;~~f ~j~~I~i'1 !.~;!iEl:~~~f~\~t",l?ilt(mfifl~') $lJ;~ln%Y~lt~ jH%~;qtl\U \ :tlrt~:l(;~!$ ~j2i\ l~l::'~I;JIZ! ~'I ~l)~ll~\..A\i-i~ r \ ; \ ~; }~ t) \ I ,\" \ ,\ I ; 3 /.. 1\ hl;;~I\ \:k ,;; J ;~\ ~I;l~ !, ( \) :'.I,114Illl' ~\,'q!, \ II, ) !.lo;7:;\j'm" (w#t~!'lll, \'-t'.(' ~J~I~ (II' tt 1 I') '~\8t'" 'l '(I! .,"\...!T' ~ I) J~~': 1 :J./ II ~'q\ ... l' 9 I, 'I L 1-' ;<='~. "((Ill . .t#.J~I" ~\ ~)"\~\\} t-;b.' \.. ,.,.;: _)" "~I~'l ' ~. (~~"I ,,' "l~le; \ ,)) 11, '. ". -.' " III \~'\~ \"1 I 1-, ' : ~ ~I., ,\ l:\ "I ) h t ,I' "I \, I \ 'r \ I I .~. l ,wl)rm;~i'~,wfllin:~,!,n,-':'~!:W~d~i::r-i'( IF;~; v:'~,~~ ~ '(1",;:1 6 ~ ":'~.:.nf! m 'i1~~ t\ ;;'1 ~.~~ <;:; !,i;'~ ill ~ ~l'~ il1i;;~iI2!!"::J!~:~t~:~i'tii';li~!!}I;\~;::!;:n":i;k,"l~\':li;:~:;i:;';,',!H"'I:;:n:,I/)::::ii~;::,:.'ij';:\l~f!:;:;:l';,:;:;ii, . .' . . . . . . . ~a~:509-453-0745 Aug 4 2006 16:48 Powers & Therrien, P.S. . 3502 Tieton DrIve Yakimlll,WA 98902 509-453-8906 Fax 509-453-0745 P. 01 8ARBAAAl~ Fax: , 3600379-4451 To: Co: Dflte: A t 4, 2006 From: LES PO Pages: 6 (Includes Cover P e Re: Ludlow Cove 2 o For Your D For Your Review D Please Comment D Hard Copy to Follow via Mail . . . . . . . NoteS: MS NIGHT4GALE: PLEASE SEE TIIE AtTACHED LETTER FROM MR. LES POWERS. THANK YOU, . SECRETARY . . I i i I Should yon experiete any problems with this transmission please call Diane Sires at phone number 509-453.8906. I This message is int\li1ded r the use of'thc individual or entity to which it Is U'llIISmitted lIJId may contain information tlutt is privill.1lJCd, confide tial and ~empt from disl.11oBurl.1 under applil.1able lllWll. If the reader of this l.1ommunication Is not the: intended rel.1ipic t, you are hereby notified that ImY dissemination, cli9tribution or l.1opying ofthi$ communi- cation is striotly prohibited If' you han rcceived this communil.1ation in error, please notify us immediately by phone: ~ return the originall.1Ommu ication to us at the address abovl.1 via U,S. Postage SeMl.1l.1. We will reimburse you fur the mlliling costs. Thank u, *-1lu:e'TEM Page ( ..:...01 d POWERS & THERRIEN ~aX:509-453-0745 Aug 4 200.16: 49 P.02 LESUE A. POWERS KEITH R. THB1UUEN E-Mail: Powers...Therrien@yw.coli1 Via F~imi.!ai. August 4, 2006 LAW OFFICBS Powers & Therrien~ P.S. 3502 TlETON DRIVE YAKIMA, W ASHINOTON 98902 TELEPHONE (S09) 453-8906 FAJ\(S09)453~4S MS. BARBARA NIGH'fIN ALE Land Use Planner Jefferson County Departme t of Community Development Port Townsend, Washingto Re: Ludlow Cove II Dear Barbara: Lewis Hale has kindly provi ed me with copies of your email exchange with him on modification of the develo ent agreement to permit a new "useH. I also have been told of a colloquy between you d members of the PL VC at today~s meeting. I am analyzing use within the meaning ofC pter 18.20, JCC; JCe 18.15,040, and JCC 18.10.040. Reference is also made tp 0 'Dance No. 09-0801..94, the Jefferson County Zoning Code, to Ordinance No. 08-1004..9 , the MPR Code, to Ordinance 01-0117-95, the ruGA, to AHE Galfs decision of De mber 7, 2005, and HE Berteig's decision of July, 2002. I do not think there is any do bt about the actual zoning of tile property. It is zoned Single family residential as t term was understood in January, 1995. Mr. Berteig so ruled in 2002. The maxim density permitted under this use in 1995 was four (4) writs per acre. It remained the s e under the MPR Code. His ruling was not appealed and remains the final action of Je erson County on the subject matter. Mr. Galt ruled that Mr. Berteig's opinion contro led as to the permitted; not conditional, use of Ludlow Cove II. He remanded to detenn' the conditional use that could be allowed based upon any site specific filing in the record. Only if Mr. Berteig finds that the plat application identified a site specific co 'dona! multifamily use can Mr. Berteig conclude that the property may be developed der applicable zoning to a density of sixteen (16) unitsper acre. The preceding discUssi n recognizes the vesting issues that apply to the property as detennined by Messrs. Bel'tei and Galt. Whatever the zoning detennination reached by Mr. Berteig or, ultimately; . Oalt,I think the property must be developed as single family detached residential der the development agreement which incorporates and makes binding upon Jefferso County and Pope the MPR Code. The preceding limitation is contractual but i subject to modification by amendment to the development agreement. I understand that you had a c lloquy with Mr. Loomis at the PL VC meeting. He pressed you about your view of the Ie al effect of the hearing examiner opinions on Ludlow Cove II and that in substance the p posed amendment to the development agreement has the \ I , ' ,~ r.. ":. . POWERS & THERRIEN Fax:509-453-0745 e Aug 4 200.16: 49 P.03 MS. BARBARA NIOHTINOALB . AU!lIlst4.2oo6 Page 2 effect of changing zoning m single family residential to commercial without the legal protections accorded such c anges under the Comprehensive Plan. I must respectfully dissent your views. Ignorin the 1995 IUGA~ there are two hearing examiner opini01'1S that apply to Ludlow Cove , Mr. Berteig's July, 2002 opinion and Mr. Galt's December 2005 opinion. Mr. Berteig' Sep~ember 2,2005 opinion was "vacated" by:Mr. Galt's December 7, 2005 decision. Mr.-Galt's decision "is final subject to the right of any party of record to f11e a written m tion for reconsideration..." The final action of Jefferson County on the binding site p an and related consolidated pennit application on Ludlow Cove II, is Mr. Galt's decisi n, not Mr. Berteig's decision. The County is not entitled to rely upon Mr. Berteig's Sep mbe! 2, 200S decision as to any conclusion oflaw or fact. It no longer exists as a legal tier. There is no confusion here. Mr. De Sa e Silva admitted this conclusion at e workshop. That is why he said that the preliminary opinion issued by Mr. Bertei in response to Mr. Galt's remand on the CuP has no legal effect. The final decision, at of Mr. Galt, is on appeal. It remains the final decision. It's effect has not been staye . It is as legally binding as the rUGA during the period Pope filed a prelinunary plat plan for Ludlow Cove in January, 1995. The effect of Mr. Galt's decision is absolutely lear. The Trend West proposal is a commercial, albeit private hotel or resort and is ot permitted in an area zoned for single family residency even under a multifamily C . What PLA and Trend West are attempting to do is avoid the statutory protection and tection offered in the Comprehensive Plan for changes in zoning. They are attempting to spot zone a property zoned single family detached residency to commercial. It ould not be pennitted. Jefferson County should protect the reasonable expectations of residents who purchased from Pope and PLA to land use consistent with the Compreh nsive Plan and MPR Code. I also understand that you considering the notion that PLA may be granted a defacto zoning change of Ludlow Co e II from single family residential to commercial by amendment to the Developm nt Agreement. I strongly dissent this notion. As Lewis Hale's counsel discussed, ad velopment agreement implements the Comprehensive Plan and the MPR Code, the appli able development regulations for the MPR, and not the reverse. By its terms and by e tenns of the statute providing for development agreements, it must remain c nsistent with the applicable comprehensive plan and development regulations. R: W 36. 70B.170(1), last sentence provides: iiA development agreement shall be consistentl with applicable development regulations adopted by a local government planning under chapter 36.70A RCW." Further, the development regulation must be consistent with the a~icable comprehensive plan. RCW 36.70A.040(3) states in relevant part: i'the county all adopt a comprehensive plan under this chapter and development regulations that consistent with and implement the comprehensive plan." Master planned resorts, inclu ing existing resorts approved under RCW 36.70A.362 adopt the notion of the contro ing relationship between the comprehensive plan and the development regulations on e one hand and the development as executed under a development agreement on th other. See, RCW 36.70A.362(2) and (4) and RCW 36.70A.360(4)(b) and (d). T ere can be no doubt that the authority applicable to comprehensive plans, develo m~t regulations and development agreements flows from the comprehensive plan throu the development regulation to the development agreement. The development agreement must at all times be consistent with both the POWERS & THERRIEN ~FaX:509-453-0745 MS. BARBARA NIGHTINGALE August 4, 2006 Page 3 Aug 4 20. 16: 50 P.04 comprehensive plan and the development regulation. Because the proposed amendment clearly confliots the MPR e de and Comprehensive Plan as to permitted land use on the property, it cannot be appro ed except by a rezone through the Comprehe11Sive Plan amendment protocol. An endment to the Development Agreement is not a substitute for that protocol. Your emails with LewisHal address provisions of the UDe, specifically, pennitted uses under Chapter 18.20, JCC. ese provisions have no application to the MPR. It is either vested Wlder the MPR Code or Wlder the Jefferson County Zoning Code. The MPR Code is specific to the uses penni ed to each classification of land use. The property is zoned single family detached resid tiat. Even multifamily use is not permitted even as a conditional use. See MPR ode Sec. 3.102 and 3.103. If the Jefferson County Zoning Code applies; because a site pecific proposal was made in the initial plat application, then conditional use could p i~ multifamily use. However, thereunder, multifamily use does not include a private ho el or resort, the use that Mr. Galt found applicable to the Trend West applioation.Mr. Galt found as a matter of fact that Trend West is a commercial use. Those fm . gs are the final action by Jefferson County on the Trend West matter and cannot be 0 ertumed except under LUPA. Chapter 18.20, JCC incorporates a right in Jeffe on County to approve a discretionary use among the uses listed therein. Even ifChapt 18.20, JCC would pennit a Trend West use as a discretionary use, it would s 11 have no application to Ludlow Cove II. There is no concept of a "discretionary e" that exists either under the :MPR Code or the Jefferson County Zoning Code which auId otherwise apply. The same analysis applies to references to ICC 18.40.860( ) to the extent it might be considered applicable to an amendment to a developmen agreement. It was adopted after both the initial plat application and the Develop ent Agreement. After adopted land use regulations siniply do not apply to property aIre y vested in and subject to prior land use law. Either vesting occurred in January, 995 or in May~ 2000. It did not occur in December, 2000 Or later when the UDe was opted. See Noble Manor v. Pierce County. 133 Wn.2d 269~ 275 (1997). NeitherPL nor Jefferson County can pick and choose between the various land use laws adopte from time to time. Cherry picking is not permitted. See st COUD Reclama' Co. v. B'omsen 125 Wn.App. 432, 437 (2005). Substantively, I do not read tlte language of Jce 18.20.210 to support a Trend West resort. It applies narrowly to a different types of single family living situations, one a residence in which the owner f the residence provides bed and breakfast . accommodations and the othe a situation in which there is a detached guest house with the primary residence. Ineac case, the provision permits transient rental relations depending upon a finding of a equacy of parking and consistency of the operation with the neighborhood. I think it i pretty clear that the Trend West ownership cannot meet the requirements of Jce 18.2 .21O(1)(e) or 2(a) as to bed and breakfast accommodations since we are not dealing with proprietor occupied single family residence~ or ICe 18.20.210(the owner will not e present or JCC 18.20.210(3)(e) limiting the owner to a transient rental of the princi residence or guest house but not both. ClearlYJ this provision does not apply to re orts, particularly, owned on the Trend West model where the owners have no interest in y units and no rights to use anyone or more units on an , \' ;, :~ . I ~FaX:509-453-0745 MS, BARBARA NIGHTINOAJ.B; August 4, 2006 Page 4 POWERS & THERRIEN Aug 4 20. 16: 50 P.05 exclusive basis, the statuto definitional requirement and the definitional requirement included in the proposed endment. I read your emails to Lewis Hale'to exclude the owners of residential property within the MPR from the status of req . ed parties to the amendment of the Development Agreement. A more care review of the required parties to an amendment of the Development Agreement is equired. The Development Agreement provides that amendments must be appro ed by Pope and Jefferson County. Pope is defined to include successors, successors in ti and assigns. These terms include assigns in whole or part including those who occupy portions of the Pope Property. See Development Agreement Sec. 4.6 and Subsection 4.2. . Contemporaneous with the recording of the Development Agreement; Pope recorded set of CC & Rs that vested architectural and legal review and control over the Pope P perty in the PLVC for the benefit of the owners of property in the MPR. I am one of the "assigns" and "successors in title". So is Lewis Hale; so are the other townhome owners downers of property in North Bay and South Bay. They have a direct interest in the c tinued application of existing land use law and zoning as well as a beneficial interest er the PL VC CC & Rs. Both interests are recognized property rights. See Vikin 0 e 'es v. olm 155 Wn.2d 112, 128 (2005). How then can either the owners of pro erty in the MPR and the PLVC be excluded from "successors" or usuccessors' title" or "assigns" for purposes of detennining who must consent to an amendment to e Development Agreement? Why would PLA have any more right than any such oth successor, successor in title or assign? Allowing all parties rights is consistent wi the notion that a master planned resort is integrated. It is consistent with the protectio of vested property rights in existing zoning laws. It is consistent with the protectio of rights under CC & Rs as valuable property rights. How can Jefferson County even nk that persons that bought from Pope or PLA under the Development Agreement.sho d not be protected in the land use to which the parties to that agreement then agreed. uch purchasers have spent millions of dollars, more I would guess than PLA, in ac wring their interests. Shouldn't those interests be entitled to the same deference that Je erson County appears willing to give to PLA or Trend West? I , Could you please provide me jwith any documents or filings provided by PLA or Trend West in response to residents 1 comments. I would also like the opportunity to speak with you by phone about the issue set forth in this letter. Basically, my position is that the proposal is statutorily barred less it is approved by an amendment to the Comprehensive Plan. I share's view with Lewis Hale!s cOWlSel. I cannot see how this proposal can go forward until the issue whether it can be legally processed with the protocol that PLA and Trend est urge, that is Amendment 1 to the Development Agreement. Given the q\(esti nable approach to the approval, shouldn't PLA and Trend West be called upon to initia a request for code interpretation to detennine the legality of the approach? Why should th~ onus regularly be placed on the community to request and pay the cost of such relie Why should Jefferson County waste its time and treasure processing and evaluating an pplication the proposed approval process of which is at issue? Why doesn't Jefferson County require PLA and Trend West to prove the legality of the protocol they advocate ough a much more efficient code interpretation process , i " ,,,,,. -. ,. ,----"" ~._~-, ".-.-, .." ,"--, .,--,._" -'" ", . ',~' POWERS & THERRIEN ~FaX:509-453-0745 MS. BARBARA NIGHTINGALE August 4. 2006 FascS . Aug 4 20.16:51 P.06 before evaluating the subs e of the project. I think it is absolutely clear that currently under the final action of Je erson County; the proposed Trend West project cannot be located on Ludlow Cove n. Why should that not be the beginning point for further discussions. If PLA and T nd West want to pursue an exotic approval process that conflicts the language of the enabling statute, shouldn't they, not the community and Jefferson County pay the co t of proving up the method they advocate. Please attach this letter to the log. Sincerely yours, POWERS & THERRIEN; P.S. ~k~~ LESLIE A. POWERS 1LAP:1lI'l