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HomeMy WebLinkAboutLog154 . . September 25, 2006 Mr. Al Scalf Director of Department of Community Development Jefferson County, Washington Re: MDNS on Ludlow Cove 11 (Case No. MLA06-00221/Z0N06-0024 Dear Mr. Scalf: This letter confirms my several emai1s and submission in response to the Jefferson County Department of Community Development soliciting my comment to the proposed threshhold decision to comply with an MDNS, confirming that I appeal the threshhold decision to the Hearing Examiner. 1 incorporate my prior filing on the SEP A compliance that is part of the log by reference as the principal basis for this appeal. The proposal to which the threshhold decision relates is Proposed Amendment No.1 with associated request for a substantial shoreline development permit that if granted would purport to permit the applicant to develop a Trend West Resort at Ludlow Cove 11, an area zoned under the Comprehensive Plan, Zoning Code, and MPR Code for single family residences. AHE Galt in the final decision of Jefferson County declared that Trend West Resorts are transient uses, i.e. short term occupancy on a commercial basis. The use is not permitted under the Zoning Code or the MPR Code, the development regulations for the Port Ludlow MPR. Yet, through a redefinition of terms in the Development Agreement, itself a private agreement between the developer and Jefferson County, to execute the MPR Code, seeks to permit such a prohibited commercial use in a residential zone by simply defining a Trend West Resort as a residential or vacation time share project which it is not. The Staff Report makes it obvious that Jefferson County has decided to "get to yes" for the developer. 1 am affected by the decision. I own 44 Heron Rd., Port Ludlow, Washington. 1 am a resident of Port Ludlow and Jefferson County. My residence and Ludlow Cove 11 are all within the Port Ludlow Master Planned Resort as well as the Pope Property as defined in the Development Agreement. 1 have a right to have all of the property in the Port Ludlow Master Planned Resort developed in accordance with its zoning under the Comprehensive Plan as implemented by the MPR Code and in accordance with CC & Rs that apply to the Pope Property and take the same position. The proposal, if adopted, would eliminate zoning protection in the Port Ludlow Master Planned Resort in favor of the developer and would permit development not contemplated or permitted in the Comprehensive Plan or the MPR Code, authority upon which 1 relied in purchasing my residence. In further response to the threshhold determination to permit SEP A compliance through an MDNS, I raise two arguments. First, the Staff Report mischaracterizes the adequacy of the recreational amenities available to the Trend West Resort t~IipFe,\lNisclose the # ;s'i Page ( of') . . statement of Mr. Helm that Trend West provides minimal on site amenities and relies on a partnership with the community to provide same. Second, like the initial proposed Trend West project, the proposal is an example of prohibited piecemealing because it does not integrate the contemporaneous proposal of PLA to eliminate the public resort amenities that have not been built in the resort zone, eliminate the convention center, eliminate the public hotel expansion, and downsize the existing restaurant facilities. resort amenities. See FSEIS, Chapter I; Revised PLA Plan. These are the very amenities included in the MPR Code as the Resort Plan. See MPR Code, Sec. 3.901. They are incorporated by reference in the Development Agreement and are a part of the resort buildout that Pope, then PLA agreed to provide in connection with Jefferson County's agreement to designate Port Ludlow as an existing master planned resort under RCW 36.70A.362, itself adopted at the lobbying and instance of Pope and its attorneys to permit just such designation and to overturn the effect of Loomis v. Jefferson Countv. SHB 95-2-0066 (September, 1995). The issues surrounding the proposed modification of the resort are subject to a contemporaneous proceeding under the "Major Revision to the Resort Plan". However, as can be easily seen Trend West and the Major Revision must be viewed together. Trend West creates by its own admission a demand for recreational facilities that PLA seeks to eliminate with the Major Revision. Trend West is a genre of use that is similar to the use that PLA is obligated to develop in the Resort Zone, specifically, an expansion of the hotel, the overall purpose for which master planned resort designation was approved. It seeks to avoid that obligation; it seeks to have Trend West, in effect, substitute a variant, a private hotel, for its obligation, but not in the Resort Zone, rather in an area zoned for single family use. The MDNS is completely deficient in not evaluating these two proposals together. By doing so, it is permitted to focus on the few amenities that are privately provided by the Trend West Resort and to avoid the implications of Mr. Helm's testimony that Trend West looks for local partners to provide the bulk of the amenities. The amenities likely to support Trend West are the amenities that PLA is eliminating or shrinking, the youth center, the museum, the retail, the restaurants. The MDNS is defective because it does not consider the obvious effect of shrinking or eliminating amenities that Trend West has stated it requires for its guests. The MDNS should be rejected for failing to consider Trend West and the Major Revision together, for engaging in prohibited piecemealing. The reviewer must consider all aspects of a proposal. These include both phases and related projects that are so associated with the proposal that they should be considered together. In East County Reclamation Co. v. Biornsen, 125 Wn.App. 432, 441, (2005), the Court said: But although phased review may be beneficial in some circumstances, FE1S reviewers may not piecemeal the process by limiting reiew to "current segments of public works projects and postponing environmental review oflater segments until construction begins." Concerned Taxpavers Opposed to Modified Mid- South SeQuim Bvpass v. Dept. ofTransp.. 90 Wn.App. 225, 231, n.2, 951 P.2d 812 (1998). Moreover, phased review of a project is inappropriate where phasing avoids discussion or distorts the impact of a projects cumulative effects. See Indian Trail ProP. Owner's Assn. v. Citv of Spokane, 76 Wn.App. 430, 443,886 P.2d 209 (1994). LOG ITEM # Ij~ ~ ,I; Page 01 . . See similarly, City of Lakewood v. Bennett,Unpub. Court of Appeals Opinion, 2005, p. 6. Emphasis is placed upon the interrelationship of the parts. See also WAC 197-11- 060(3)(b). Piecemea1ing is permitted only if "the first phase of the project is independent of the second and if the consequences of the ultimate development cannot be initially assessed; such review is impermissible where a series of interrelated steps constitute an integrated plan and hte current project is dependent upon subsequent phases. See Murden Cove. Pres. Ass'n v. Kitsap Countv. 41 Wn.App. 505,526,704 P.2d 1242 (1985). Here, the steps in the Trend West and the Major Revision proposal are clearly interrelated in effect and purpose. Their combined effect is not speculative. They must be reviewed together to evaluate that impact. It is obvious that considering Trend West and the Major Revision constitutes prohibited piecemealing. The buildout ofthe master planned resort is statutorily "integrated" and "self contained". See RCW 36.70A.362. Trend West is a proposal by admission of its proponents that is engrafted on an existing resort. Here, the resort contemplates the resort buildout. The 1991 resort is described in the Development Agreement as a "small resort", certainly not of the scope that would support the right to bui1dout 450 more residential units or the entire 1,200 acre Pope Property. Rather, the resort includes the resort to be built under the Resort Plan contained in the MPR Code and incorporated by reference in the Development Agreement. It is that resort with amenities to support transient visitors that provides the necessary support for Trend West. It is this aspect of the resort that is being eliminated under the Major Revision. Not considering the Trend West proposal and the Major Revision together gives the false impression that there is an ongoing resort project as promised under the Development Agreement. It leads those who review the project to ignore the fact that except for the golf course, the Trend West proposal is free standing and not to compare it with another free standing Trend West resort that struggles at Discovery Bay. When Mr. Helm admits that Trend West looks to the community to provide its visitors recreation, he also admits that portions of the buildout of the Pope Property that affect the provision of recreation should be reviewed with the proposal. In addition to recreational amenities that are not adequately mitigated in the Staff Report so as to justify an MDNS, there are three other environmental issues that are also not adequately mitigated. First, the Staff Report fails to deal with the report of the Fire Chief given in a hearing on the Major Revision in which he admitted a lack of ability to fight beach side fires. Hence, it is questionable whether construction in the shoreland should be permitted without access roads to the beach side of all of the structures. That provision is absent here. While the fire chief did not here respond, he did testify to the issue in a companion hearing on the Major Revision, the exclusion of which results in prohibited piecemealing. Second, the sheriff has admitted that it has no personnel to spare for Ludlow Bay and that considering its population three officers should be assigned. The cost to maintain three officers in the area is about $300,000. This statement does not take into consideration the additional effect of a Trend West project that will bring an additiona1300 or so children and youth to the area weekly. The Staff Report ignores the Sheriffs comment to the initial Trend West proposal although it is L~~M _ "J of # Page . . substantively identical to the current proposal. It is unclear why the Sheriff did not respond again or if the Sheriff was even asked. See SUB05-0004, Log Item 23. Third, the Staff Report ignores or disputes the jurisdiction of the statement contained in Mr. Stewart's letter, MLA06-00221 Log Item 91. It makes reference to the lack of public access and to the change of use from residential to commercial, that is from single family residential to a resort. Mr. Stewart's comment does not concern zoning. Rather it concerns intensity of use associated with a commercial Trend West project as compared with the fifty eight or so single family residences that could legally be built on the project and would be used principally part time. The distinction is imbedded in definitions contained in JCC 18.15.123 that apply to new master planned resorts. It is based on the distinction found by AHE Galt, that is residential vs. transient. It distinguishes a hotel/motel from a residential dwelling, apartment, condominium, timeshare or fractionally owned unit. Because Trend West is not a residential use, its use is not permitted in an area zoned for a less intense residential use. This acts to protect the sensitive shoreland and estuary to Ludlow Creek. The Staff Report does not adequately dispose the intensity of use issue relative to the shore1and raised in Mr. Stewart's letter either in its MDNS or in its treatment of the SSDP.' None of these three issues are mitigated. They are all environmental issues listed in WAC 197-11-444. The effects are material. They are not in doubt. Hence, to justify a threshhold decision that permits an MDNS to substitute for full SEP A compliance, that MDNS must mitigated these issues. Finally, the MDNS must be rejected because it is based on a staff report that concluded that Trend West is a residential use under applicable zoning laws. See SUB05-0004, Log Item 141. That conclusion was adopted by HE Berteig in his September 2, 2005 decision. See SUB05-0004, Log Item 144. The decision was vacated by AHE Galt in his December 7, 2005 opinion. The decision of AHE Galt is the final action of Jefferson County. See LUPO, Sec. 19. HE Berteig's decision has no further legal effect. It cannot be quoted as supporting anything. The fact that PLA has appealed AHE Galt's decision is irrelevant. Unless it is overturned on appeal, it remains the final action of the County. It has certainly not been stayed. If the Trend West use upon which the staff report relative to SEPA compliance is based is based on a flawed conclusion that the Trend West use is residential rather than commercial or transient, how can the MDNS that relies on the practical effect of that use stand? In summary, the MDNS does not adequately comply with SEPA's requirements because it is based on a flawed piecemeal approach to Trend West and the Major Revision and because it fails to mitigate public services, recreational availability, and intensity of use. Without regard to the ultimate substantive decision on Trend West, 1 want Proposed Amendment No.1 rejected. 1 want full SEP A compliance in the form of an environmental impact statement that shows the effect of all ofthe proponent's proposals ] It is not the case that an SSDP properly issued or would have issued to PLA for Ludlow Cove II. The SHB held that Jefferson County did not approve the application by final action, that the application was invalid, and remanded it to the County for proper approval in accordance with applicable procedures. Statements in the Staff Report and Proposed Amendment No. I to the cot.~!!.cro!,ous. See Powers and Rozzell v. Jefferson County et. AI. SHB [ ]. # I,S;- c.r- Page '( ot . . on the infrastructure of the community and recreational opportunities available as well as the effect of the proposal on public services and facilities, matters now ignored. I want the EIS to review in detail Mr. Stewart's concern about the change of intensity of use and its effect on the shore1and, Ludlow Bay, and the estuary to Ludlow Creek. Only when the public services and facilities, the woeful lack of recreational amenities, and the effect on the shore1and, Ludlow Bay, and the estuary to Ludlow Creek have been fully discussed and actual mitigation and not recitation of provisions from 1CAD proposed and adopted, should the proposal be considered substantively. Only when the proposal is legally made as a Comprehensive Plan amendment should it be considered at all. Persons who bought Pope Property are entitled to the same protection of their expectations as the developer. These appear to be given short shrift. 1 have read this appeal and believe it to be factually and legally well grounded and correct. Because 1 have not been officially informed by notice of the MDNS but have been substantively informed through the Staff Report, I am confirming my appeal by this notice. I will be sending a PDF version thereof tomorrow. Sincerely, Leslie A. Powers LOG ITEM # / S" r -,-'-~ p~ge_ ~ot_2