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HomeMy WebLinkAboutLog134 e e Page 1 of 1 Barbara Nightingale From: Barbara Nightingale Sent: Friday, September 08,20069:51 AM To: 'Powers & Therrien (Diane Sires)' Subject: RE: Trendwest Project Diane, Les should get those to me as soon as possible. The draft staff report around 9/11. Barbara Nightingale M.MA, MAS. Associate Planner Port Ludlow Master Planned Resort Jefferson County Dept. of Community Development (360) 379-4472 bnightingale@co.iefferson.wa.us From: Powers & Therrien (Diane Sires) [mailto:powers_therrien@yvn.com] Sent: Friday, September 08, 2006 8:58 AM To: Barbara Nightingale Cc: Powers & Therrien Subject: Trendwest Project Barbara Les will be sending you his comments to PLA's comments to the log and he would like them considered in the staff report. Diane Sires Legal Assistant POWERS & THERRIEN, P.S. 3502 Tieton Drive Yakima, WA 98902 Ph (509)453-8906 Fx (509)453-0745 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 is intended only for the use of the person named above. If you are not that person, you are hereby notified that any dissemination, distribution or copying of this email message other than to the addressee is strictly prohibited. If you have received this message in error, please immediately notify the sender and delete this email from your computer. To ensure compliance with requirements imposed by the IRS, we inform you that any U.s. federal tax advice contained in this communication was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter. LOG ITEM # /Jf{ Page I of ( '1... 9/13/2006 Re: MLA06-000221 (Trendwes_- FYI --- Bert . . . e Page 1 of 4 . Barbara Nightingale From: Powers & Therrien [powers_therrien@yvn.com] Sent: Thursday, September 07,20067:29 AM To: Barbara Nightingale; Bert Loomis; Rick Rozzell; AI Scalf; John Fischbach; David Alvarez; Pat Rodgers; David Sullivan; Phil Johnson Cc: Lewis Hale; Bill; Randall Shelley; Elizabeth Van Zonneveld; Jim Brannaman; Larry Nobles; Tom Stone; Suzanne Graber; Tom McCay; Ralph Stroy; Don Clark; Tony Durham; Douglas Barber; ROBERT SKODIS; Hana Buresova Subject: Re: MLA06-000221 (Trendwest) --- FYI --- Bert Barbara: I concur that the HE's role is to recommend to the BoCC. However, I dissent the conclusion that PLA and the BoCC have the right to amend the Development Agreement. The Development Agreement provides that Pope Resources and Jefferson County have the authority to amend. However, Pope Resources includes "its successors, successor in title and assigns with respect to hte property in which they have an interest". See Development Agreement Sec. 4.6 Successors in title and assigns are not limited to PLA. The term includes any person who succeeds in title to property directly or indirectly through Pope Resources. This is clear from the language of Subsection 4.2.2 of the Development Agreement which permits Pope Resources "to assign or transfer all or any portion of the respective interests, rights or obligations under this Agreement or in the Pope Property to other parties acquiring an interest or estaete in all or any portion of the Pope Property." It is clear that anyone who has purchased a lot from within the Pope Property from Pope Resources directly or through PLA is a successor in title to a portion of the Pope Property. It is equally clear that the PLVC is a successor in title to the Pope Property by operation of the PLVC CC & Rs recorded at Assessor No. 435975. It is also clear that equitably any person who has purchased directly or indirectly title interest in any of the Pope Property is beneficially vested in the PL VC CC & Rs that are obviously intended for the benefit and protection of the lot owners. Rights under CC & Rs are property rights under Washington law. See Viking Properties. The interest that any ~uch person enjoys need not be a title interest. It need only be an interest. A person need only be an assign, not just a successor in title. Whether you agree with this analysis, it is a legal position that will be tested in the review of the Trend West project. Under Viking Properties, if the County is found to have violated the CC & Rs by approving a use on the property that conflicts in language or operation the CC & Rs, there will have been a taking. It is subject to the standards involved in condemnation, that is there must be a public purpose and there must be compensation. Moreover, if as I contend the lot owners and/or the PL VC are necessary parties to the amendment, the entire process will be void without their consent. I must ask why Jefferson County would proceed at its cost without resolving the basic question whose consent is necessary for this amendment. It seems to me that the proponents should resolve this problem before asking Jefferson County and the lot owners to spend time and treasure responding to the substance of the proposal. Les ---- Original Message ----- From: Ba[Q~[~_Nj9htjn9~~ To: Bert Loomis; Rick Rozzell ; AI Scalf; John Fischbach; David Alvarez; Pat Rodgers; David Sullivan; Phil Johnson Cc: .L~~EQ\N~[~ ;1,,~\Ni~_t!~J~ ;6iJJ ; R.~.n~t~JLSh_~IJ~Y ;t=Ji~<;!Q~tb_.Y~n:Z_QlJn~v~Jq ;Jjm-6J~_nn~mC:!n ; I"C:![!Y Nobles; Tom Stone; Suzanne Graber; Tom McCay; Ralph Stroy ; Don Clark; Tony Durham; Douglas Barber; Bill Cooke; ROBERT SKODIS ; Hana Buresova Sent: Wednesday, September 06, 20064:29 PM Subject: RE: MLA06-000221 (Trendwest) -- FYI --- Bert LOG ITEM # 11<{ Bert, paae").... of The HE does not amend the Development Agreement. He reviews legal issues for~130ec:0nly the BoCC 9/13/2006 .Re: MLA06-000221(Trendwes,- FYI --- Be~ e Page 2 of 4 and PLA can amend the agreement. Barbara Nightingale M.MA, MAS. Associate Planner Port Ludlow Master Planned Resort Jefferson County Dept. of Community Development (360) 379-4472 bnightingale@co.iefferson.wa.us From: Bert Loomis [mailto:bertl@cablespeed.com] Sent: Wednesday, September 06, 2006 2:31 PM To: Barbara Nightingale; Rick Rozzell; AI Scalf; John Fischbach; David Alvarez; Pat Rodgers; David Sullivan; Phil Johnson Cc: Les Powers; Lewis Hale; Bill; Randall Shelley; Elizabeth Van Zonneveld; Jim Brannaman; Larry Nobles; Tom Stone; Suzanne Graber; Tom McCay; Ralph Stroy; Don Clark; Tony Durham; Douglas Barber; Bill Cooke; ROBERT SKODIS; Hana Buresova Subject: Re: MLA06-000221(Trendwest) --- FYI --- Bert Barbara, Thank you for your response. Unfortunately you have failed to answer my second question. I repeat my second question: "Also, site the legal authority that gives the HE jurisdiction to review, modify, recommend or amend the (a) development agreement." Regards, Bert Bert, The proposed amendment and the shoreline substantial development permit come before the HE, as a consolidated application, on September 22nd. The HE will not be making a decision or ruling he will be making a recommendation(s) to the BoCC on this application. The Port Ludlow Development Agreement vested in Land Use Procedures Ordinance (LUPO) #04-0828-98 Section 7 requires that: as a consolidated application, the amendment and shoreline permit together, as one application is required to go to the highest level for decision, which is Type C, decision by BoCC. As a Type C pursuant to LUPO Section 16 . "B. Decision Procedures. 1. Hearing Examiner Recommendation. The BoCC may refer a Type C application to the Hearing Examiner for an open record hearing. The HE shall follow the procedures set forth in this Chapter and in the Rules of Procedure adopted in accordance with this Chapter. The HE's written recommendation shall be transmitted to the BocCC." (Note: The BoCC did select to have the HE hear this consolidated application). See LUPO Section 16. "C. BoCC Decision. Elements to be Considered. T~Ao~1I consider the following in deciding upon an application: a. The contents of the ~tPcJrf':'"D.'The record of the open record hearing on the application including any tesr~nY writt...p material page.:) ~of_ - 9/13/2006 .Re: MLA06-000221(Trendwes,,- FYI --- Be~ . e Page 3 of 4 submitted as part of the hearing process; c. The recommendations of the HE, if applicable; and, d. The policies of the Comprehensive Plan and any applicable subarea plans, decision criteria listed in each section of the Jefferson County Code under which the application was made, and any other applicable law. 2. Decision The BoCC may approve, approve with modification, or deny the application. If a decision has been referred to the HE for a recommendation and the BoCC determines that the HE's record has been insufficiently developed, the Board may remand the application to the HE with specific instructions for further proceedings." proceedings." Hope that is helpful. Barbara Nightingale M.M.A., M.A.S. Associate Planner Port Ludlow Master Planned Resort Jefferson County Dept. of Community Development (360) 379-4472 bn ig htingale@co.jefferson.wa.us From: Bert Loomis [mailto:bertl@cablespeed.com] Sent: Tuesday, September 05, 20064:07 PM To: Barbara Nightingale; Rick Rozzell; AI Scalf Cc: Les Powers; Lewis Hale; Bill; Randall Shelley; Elizabeth Van Zonneveld; Jim Brannaman; Larry Nobles; Tom Stone; Suzanne Graber; Tom McCay; Ralph Stroy; Don Clark; Tony Durham; Douglas Barber; Bill Cooke; ROBERT SKODIS Subject: Re: MLA06-000221(Trendwest) --- FYI --- Bert Importance: High Barbara, Please clarify exactly what is before the HE on 9/22. Also, site the legal authority that gives the HE jurisdiction to "review", "recommend or "amend" the development agreement. Regards, Bert Rick and all, We realize this is what the response is but it is not what we see happening. We see the HE, 9/22/06 hearing, reviewing and recommending on both the amendment and the shoreline permit. Thanks, Barbara Nightingale M.M.A., M.A.S. Associate Planner Port Ludlow Master Planned Resort Jefferson County Dept. of Community Development (360) 379-4472 bn ightingale@co.jefferson.wa.us LOG ITEM #.JS Y Page~ of 9/13/2006 .Re: MLA06-000221 (Trendwes.- FYI --- Be~ . e Page 4 of4 From: RR2DP@aol.com [mailto:RR2DP@aol.com] <mailto:RR2DP@aol.com% 5d> Sent: Friday, September 01, 20068:33 PM To: Barbara Nightingale Cc: powers_therrien@yvn.com; LewisHale@aol.com; bertl@cablespeed.com; bill@msinw.com; r&kshelley@waypt.com Subject: MLA06-000221(Trendwest) Log Item # 56 in the response section states "It is the understanding of the applicants that the Hearing Examiner will make a recommendation to the Board of County Commissioners whether or not and under what conditions to approve the application of th applicants for a shoreline substantial development permit but will not make any recommendation or hear arguments or take testimony regarding the application for an amendment to the Port Ludlow Development Agreement (because whether or not to approve the amendment is a legislative decision, rather than a quasi-judicial decision). The comment does not address the shoreline permit application, and it therefore is irrelevant to the proceedings before the Hearing Examiner". Does this mean that the Hearing Examiner will hear no testimony as to the proposed Development Agreement changes at all? What exactly will the Hearing Examiner be hearing? Since AHE Galt's decision still stands and no modifications to the Development Agreement have been approved, how can anything be heard as to issuance of a Shoreline permit? Rick Rozzell ( 2LOG ITEM # ~ L( Page S of_ 9/13/2006 . . - Page 1 of2 , ~ Barbara Nightingale From: Powers & Therrien [powers_therrien@yvn.com] Sent: Tuesday, September 05,20067:43 AM To: Barbara Nightingale Cc: LewisHale@aol.com; Rick Rozzell; Elizabeth Van Zonneveld Subject: Fw: PLA response to comments Trendwest Barbara: I join with Lewis in the concerns he raises. The community is entitled to notice and participation. I have read LI responses that I now understand are from PLA. I have drafted comments to them and will be forwarding those comments later this week. I expect those comments to be submitted to and considered by the HE. PLA's application is being processed as a consolidated permit application under LUPO. I strongly object to PLA's apparent effort to fragment it. Finally, PLA represents in its LI responses that Trend West is a party because it has acquired Ludlow Cove II or an interest therein under contract. This email is an official request for a copy of the contract. If the contract only gives Trend West the right to acquire the property at closing, I do not see that Trend West is a proper party and I strongly object to its continued participation in the process in that capacity. Les ----- Original Message ----- From: Barbara Nightingale To: LewisHale@aol.com Sent: Thursday, August 31, 2006 6:33 PM Subject: RE: PLA response to comments Trendwest Lewis, The HE will discern whether he can address both points when he hears the issues and he sees what kind of information he has. We (meaning - we here at the County - not just me) believe he will address both parts of the application, the shoreline permit and the amendment. That is the best I can answer I can provide right now. Barbara Nightingale M.MA, MAS. Associate Planner Port Ludlow Master Planned Resort Jefferson County Dept. of Community Development (360) 379-4472 tmigbtjnggLe.@gQj~ff!;lI~Qn. waJ,LS From: LewisHale@aol.com [mailto:LewisHale@aol.com] Sent: Thursday, August 31, 2006 5:47 PM To: Barbara Nightingale Cc: AI Scalf Subject: Re: PLA response to comments Trendwest LOG ITEM # ('iJ 0/ Page t of Barbara, my concern is that I don't trust the political manuevers going on in the background (not within DeD). went back and looked at the minutes from the BoCC meetings and it is absolutely clear they want recommendations on both and that this is a "consolidated" application (shoreline and dev agg amd). This was followed by a unanimous motion to have the HE conduct a public hearing on the consolidat.~nli~'\'l~ Commissioner Rodgers noted that "the benefit of having the consolidated aoolication heard"t't~ Hbaring Examiner is that it would separate the legal aspects from the political aspects". Cle_y..!.he~.2gg~~mtSJbeHE's Page \,)1 9/13/2006 .. . e Page 2 of2 . ~ recommendation on the technical aspects of the amendment. PLA is being way too cute with this. In fact their response is captioned "Notice of Application for Shoreline Substantial Development Permit". So with all due respect, this is not a question of what you "believe" the HE will recommend on and I would expect that your staff recommendations to the HE will so state. Sorry to be so direct but this is not about you or DCD but my concerns noted above. Please confirm that you will be requesting (directing?) the HE to render a recommendation to the BoCC on the dev agg amd based on the legal and technical factors involved. Regards, Lewis LOG ITEM # I~ '-I Page '7 of 9/13/2006 - e Page 1 of3 0/ Barbara Nightingale Sent: To: Cc: From: Barbara Nightingale Thursday, August 17,20068:16 AM 'Powers & Therrien' bert loomis; Elizabeth Van Zonneveld; Rick Rozzell; LewisHale@aol.com; Tom Stone; Terry and Shelley o'brien; AI Scalf Subject: RE: Second Response to Your Response to Mr. Loomis Les, I merely pointed out that there was a similarity with someone applying a variance. PLA/Trendwest is not applying for a variance. Barbara Nightingale M.MA, MAS. Associate Planner Port Ludlow Master Planned Resort Jefferson County Dept. of Community Development (360) 379-4472 bnightingale@co.iefferson.wa.us From: Powers & Therrien [mailto:powers_therrien@yvn.com] Sent: Wednesday, August 16, 2006 9:38 PM To: Barbara Nightingale Cc: Powers & Therrien; bert loomis; Elizabeth Van Zonneveld; Rick Rozzell; LewisHale@aol.com; Tom Stone; Terry and Shelley o'brien; AI Scalf Subject: Second Response to Your Response to Mr. Loomis Barbara: Let me respectfully direct you to the applicable authority. If as AHE Galt found, vesting occurred in January, 1995, the Zoning Ordinance controls. As to the specific property, the IUGA controls. Thereunder, the map provides that the property is multifamily. It is zoned general. To grant a variance under the Zoning Code that is applicable under the vesting, the following rules apply: 17.20 V ARIANcES-REVIEW CRITERIA. The Hearing Examiner shall not authorize any variance to the provisions of this ordinance unless all of the following facts and circumstances exist: 1. The specific effect of the zoning regulation construed literally as to the specific property is unreasonable due to unique conditions relating to the specific property relating to the specific property such as size, shape topography, location, proximity to a critical area, or character of the surrounding uses, or that strict compliance of the regulation would be unreasonable in view of the purpose to be served by the regulation; 2. The hardship relates to the application of the standard to the land, than the personal circumstances of the applicant; rather 3. The granting of the variance will not serve to erode the pU1.~ftTEMhis #/3'1 Page 'g of 9/13/2006 . e Page 2 of 3 . ordinance; 4. The variance so granted would allow the reasonable use of the . property, and would not affect the use of the neighboring properties; 5. The variance does not allow deviation from the specific use contained in this Ordinance; restriction 6. The granting of the variance will not be materially detrimental or contrary to the Comprehensive Plan and will not adversely affect th e character of the character of the neighborhood and the rights of neighboring adjacent property owners; 7. The granting of the variance does not cause a significant to the public interest. detrimental effect 17 .30 LIMITATIONS ON THE GRANTING OF VARIANCE. The Hearing Examiner and the Board shall not recommend approval of any variance from this ordinance that would: 1. Change the structure of the land or the boundaries of a zoning district; 2. Change the zoning requirements regulating the use of land. I quote the provision in its entirety. I ask you how a variance procedure permits a commercial resort on the property, as found by AHE Galt in light of the requirements of Zoning Code Subsections 17 .20( 1), (2), (3), (4), (6), and (7). I emphasize (6). The proposal clearly violates and conflicts the land use approved in the Comprehensive Plan. It violatles the MPR Code, the development regulation adopted under the Comprehensive Plan with respect to the property. Finally, there is no showing that any ofthe conditions of (1) through (7) have been met, a condition of granting a variance. I further question whether the proposal does not violate Zoning Ordinance 17.30(2) because it clearly changes the zoning requirements regulating the use of Ludlow Cove II. I provide this guidance because I think that you are being misled by PLA, Trend West and those that put theoretical economic benefits over the legality of the proposition. PLA clearly does not care whether its activities destroy the basic structure and predictability of land use planning, that those that have purchased property in the MPR will have their expectations sacrificed to the supposed needs of the developer or economic development. Keep in mind that our Attorney General promised that we were not like New London, that public purpose discouraged the sacrifice of the landowners rights to economic benefit or its perception. I remain suspicious, particularly where I see that you have made a volte face and now appear to support economic development or its promise over the legal rights of land owners. I make reference here to Viking Properties and RcW 36.70A.020(6) which I have previously cited that recognize the GMA's support for private property rights. I realize that various persons have differing views of the propriety of the proposal. I understand that Mr. Fischbach's views place the proposals thast he has approved over legal protocol. That is clear fdrom various email exchanges with which I have been copied. Please understand, I am deeply committed to the procedure. Where, as here, I view property rights and protocol violated for quick profits, I intend to voice my objections and pursue my legal rights. As should be apparent from the last two years, my objection is not to be dismissed as non meritorious or less meritorious than the position of the developer. Here, my objection is not just that the..l2roperty should enjoy greater protection than that which would obtain under a Trend \\W&lI~l'A1t also that the proposal violates those basic land use laws and vesting rights that swuld the successors to Page of 9/13/2006 e e Page 3 of3 + Pope and PLA. The rights of the successors seem to have been dismissed by your office without meaningful consideration. We are necessary parties to the amendment and our rights to vest are violated by this proposal. These rights cannot lightly be dismissed. I believe they have been. I ask you to reconsider the position you have articulated to Mr. Loomis and consider the law that applies rather than the economic imperative that has been loosely, and, I believe, erroneously, promised by PLA and Trend West. Les Les Powers 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 U.S.C. Section 2510-2521 and is legally privileged. This message and any attachments hereto is intended only for the use of the person named above. If you are not that person, you are hereby notified that any dissemination, distribution or copying of this email message other than to the addressee is strictly prohibited. If you have received this message in error, please immediately notify the sender and delete this email from your computer. To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter. LOG ITEM #~ Page JL of 9/13/2006 Legal issue - Port Ludlow develtfent agreemen~ modi~cation / Trend.--- FYI --- B... Page 1 of2 Barbara Nightingale From: Sent: To: Powers & Therrien [powers_therrien@yvn.com] Monday, August 14,2006 11 :35 AM John Fischbach; Bert Loomis; AI Scalf; Barbara Nightingale; David Alvarez; Pat Rodgers; David Sullivan; Phil Johnson Elizabeth Van Zonneveld; Tom Stone; Larry Nobles; Bruce Pyles; Bruce Schmitz; Allen Panasuk; Tony Durham; Don Clark; Suzanne Graber; Jim Brannaman; Richard Shattuck; Mickey Gendler; Lewis Hale; Gregg & Pat Jordshaugen; Peter Joseph; Ed Knodle; Douglas Barber; Hana Buresova; Rick Rozzell; Bill Cooke; Ralph Stroy; John Fischbach Subject: Re: Legal issue - Port Ludlow development agreement modification /Trendwest --- FYI --- Bert Cc: John: I think the question may be properly posed as one of code interpretation. This is clearly permitted under LUPO. By way of example, I cite Chapter IV of the Rules of Procedure adopted under LUPO, "Rules of Procedure for Appeals of Code Interpretation Decisions of the Director". It should take precedence over the review because it calls to question the authority of County to consider the underllying proposal. It is not just a question whether the land use is proper but whether the County has the authority to change the law on this subject in the manner that has been proposed to it. If you think there is authority that Mr. Scalf cannot hear Mr. Loomis' issue as a question of code interpretation involving Resolution 42-00, the Comprehensive Plan, or the MPR Code, I would appreciate it if you would identify same. Thanks for your consideration. Les ----- Original Message ----- From: John Fischbach To: Bert LQQmj~; AL~calf ;~a[paraNigbhngale ;O-8YLc;LAIYare~; palB.QggeJ:~ ; Payi<tSymvan ; J?bjJ.JQbn~Qn Cc: Elizabeth Van Zonneveld ; TOIlJ...S.tooe ; Larry Nobles; Bruce Pyles; Bruce Schmitz ; Allen Panasuk ; Tony Durham; Tom Stone; Don Clark; Suzanne Graber; Jim Brannaman ; Richard Shattuck; Mickey Gendler; Les POWer~ ; LeWis !iale. ; Qreg~'pat JOrgsh.8ugen; PeteLJ.Q~eQ.tl; f;gJSnogle ;pou.Q@.s BaIPer ; Han..a Buresova ; Rick Rozzell ; Bill Cooke; Ralph Stroy ; John Fischbach Sent: Monday, August 14, 20069:06 AM Subject: RE: Legal issue - Port Ludlow development agreement modification /Trendwest --- FYI --- Bert Bert, thank you for your comments. You are referring to the application for an amendment to the development agreement currently being reviewed by DCD. The decision is pending an hearing examiner recommendation to the BOCC and eventually a final decision of the BOCC. You are Asking for a predetermination which is not proper within the process of application review. The HE public hearing will be September 22nd. John From: Bert Loomis [mailto:bertl@cablespeed.com] Sent: Saturday, August 12, 2006 8:58 AM To: John Fischbach; AI Scalf; Barbara Nightingale; David Alvarez; Pat Rodgers; David Sullivan; Phil Johnson Cc: Elizabeth Van Zonneveld; Tom Stone; Larry Nobles; Bruce Pyles; Bruce Schmitz; Allen panasuk; Tony Durham; Tom Stone; Don Clark; Suzanne Graber; Jim Brannaman; Richard Shattuck; Mickey Gendler; Les Powers; Lewis Hale; Gregg & Pat Jordshaugen; Peter Joseph; Ed Knodle; Douglas Barber; Hana Buresova; Rick Rozzell; Bill Cooke; Ralph Stroy Subject: Legal issue - Port Ludlow development agreement modification /Trendwest --- FYI --- Bert John, LOG ITEM # {~y Page (( of 9/13/2006