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HomeMy WebLinkAboutLog168 e . Page 1 of 1 Barbara Nightingale From: AI Scalf Sent: Monday, October 16,20069:46 AM To: Barbara Nightingale; Stacie Hoskins Subject: FW: Appeal of Oct. 2nd Decision re Ludlow Cove 2 - MLA06-00221 -----Original Message----- From: Powers & Therrien (Diane Sires) [mailto:powers_therrien@yvn.com] Sent: Friday, October 13, 20063:38 PM To: AI Scalf Subject: Appeal of Oct. 2nd Decision re Ludlow Cove 2 - MLA06-00221 Mr. Scalf See attached for filing in your usual manner. Thank you. 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. # I~:~~~M Page -L~,-."" of ')-D 10/16/2006 .., .. - - ----- -'--'n,n-"~,e,n _____nn____ H___ - - e Page 1 of 2 Powers & Therrien (Diane Sires) From: To: Cc: Sent: Subject: "Powers & Therrien" <powers_therrlen@yvn.com> "barbara nightingale" <bnlghtingale@co.jefferson.wa.us> "Powers & Therrien" <POWERS_THERRIEN@yvn.com>; <LewlsHale@aol.com>; "Rick Rozzell" <rr2dp@aol.com>; "Elizabeth Van Zonneveld" <evz@cablespeed.com> Monday, October 02, 2006 1:54 PM SEPA Compliance Barbara: I am confused. Your reference to the threshold detennination refers to that issued under SUB05-0004. That application was not approved by Jefferson County and, indeed, the conclusion of the Staff Report upon which the MDNS for that application issued was rejected by AHE Galt in his opinion constituting the final decision of Jefferson County. By reference to the appeal period relating to SUB05-0004, you appear to take the position, contrary to the June notice you sent to me and governmental agencies inviting SEP A comments, either that the project is categorically exempt or that SEP A compliance obtains by reference to the MDNS issued in connection with SUB05-0004. I reviewed WAC 197-11-305 and 197-11-800. I find no basis for a categorical exemption for this project. While you may indeed adopt documentation of a prior threshold determination in certain instances, I have not seen evidence that the procedures set forth in WAC 197-11-600 have been adopted or followed. Specifically, reference is made to WAC 197-11-600(3)(b)(ii) which provides that "for DNS and EIS, preparation of a new threshold determination or supplemental EIS is required if there are:... "new information indicating a proposal's probable significant adverse environmental impact. (This includes discovery of misrepresentation or lack of material disclosure.)." It seems to me that reliance upon a conclusion in the Staff Report that is based upon the position advocated by the applicant that the proposed use is residential that has been vitiated and overturned by the appellate hearing examiner and the conclusion of the appellate hearing examiner that the proposed use is a nonresidential use meets the "new information" test, either under the first sentence or the parenthetical. It is unnecessary that the information upon which the original threshold decision be intentionally misleading or incomplete; it only needs to be in fact misleading or incomplete. . Clearly, that test is here met. This is even more clear by reference to Mr. Stewart's letter from the DOE where he raised the issue of prohibited commercial use, an issue which was ignored based upon jurisdictional considerations even though it is clear that Mr. Stewart's concern relates to the differences in intensity of use represented by residential and nonresidential use. JCC 18.40.750(1) and (3)( d) provides no support for a conclusion of categorical exemption. JCC 18.40.750(4) merely permits the use of existing documents; it does not suggest that those documents may be adopted without reference to notice and a chance to the public to be heard on the decision to use same. Where I have already objected to this procedure, I must ask that you identify the authority on which you base your conclusion that I cannot appeal a decision to issue an MONS to MLA06-00221 based upon documentation prepared in connection with the decision to issue an MDNS for SUB05- 0004, particularly where you have solicited my opinion thereon with government agencies and I have repeatedly raised objections thereto. I am troubled that DCD would adopt such a questionable view attempting to restrict my rights as a member of the public to be heard on a proposal that I have repeatedly raised objections to on substantive lOG ITEM # I'~ . Page '7--. of lQ/13/2006 oi r ~____n____ e Page 2 of 2 and legal grounds. One could easily conclude that Jefferson County wishes to join with the applicant in stifling views that are not compatible with the views or goals of the applicant or perhaps Jefferson County. I don't see how a substantive conclusion that Trend West is a nonresidential use not permitted in an area that you have admitted is zoned for single family residences can be changed by a legislatively adopted change in definitions. If Jefferson County concluded that a small hide rendering plant is a cottage industry would make it so. What about all of those in the residential neighborhood that might have reason to question such use. The problem is that Jefferson County is trying to hide prohibited spot zoning to permit a legally impermissible use without regard to the interests of other affected property owner or even the procedure applicable to zoning changes. More to the point, environmental issues applicable to a hide rendering plant are the same whether Jefferson County defines the use as a cottage industry or not. It is this latter issue that is before us. Jefferson County has concluded that the proposed Trend West use is a nonresidential use not pennitted in an area zoned single family. While it can change zoning, it cannot change the conclusion that it reached. Nor can it change the effect of the conclusion on environmental compliance. The conclusion substantively vitiates the Staff Report upon which the MDNS for SUB05-0004 was issued. That is a fact. The legislature may be able to change the legal effect of a fact under certain circumstances and assuming that it follows proper procedures; it cannot change the effect of the fact as a matter that requires review of a threshold decision that is based upon conclusions conflicted by the fact. Whether or not I appealed in 2005 to an MDNS issued against SUB05-0004 is unrelated to my right to appeal an MDNS, even one based upon identical findings, that supports MLA06-00221 in 2006. I request evidence that Jefferson County has made a threshold decision as to MLA06-00221 and that it has properly noticed persons from the community, including me, of their appeal rights. Absent such proof, I will be forced to raise Jefferson County's lack of compliance with SEP A's threshold determination and notice requirements administratively and judicially at significant cost and delay to Jefferson County, the applicant, and me. To avoid the kind of delays and costs associated with the SSDP approved by Jefferson County in connection with SUB05-0004 without final decision and vitiated by the Shoreline Hearing Board and in keeping with the additional time that Jefferson County gave to the applicant to cure a notice issue to the detriment of members of the community, including me, who had arranged their schedules to appear at the hearing, I ask that Jefferson County evidence compliance or comply with the requirements of SEP A in connection with MLA06-00221. Your attention to this matter is appreciated. Les Powers & Therrien, P.S. 3502 Tieton Drive Yakima, WA 98902 Phone: 509-453-8906 Fax: 509-453-0745 This emallls 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 emall 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 (il) promoting, marketing or recommending to another person any tax-related matter. LOG ITEM #--1 ~ i Page ') of 10/13/2006 ----- ~-~-- ----- ----~ ____m_n-m---- ------ _nnn --- -------- --- - U - e Page 1 of2 ,'" 1. Powers & Therrien From: To: Cc: Sent: Subject: "Barbara Nightingale" <bnlghtingale@co.jefferson.wa.us> "Powers & Therrien" <powers_therrien@yvn.com> "AI Scalf' <ascalf@co.jefferson.wa.us>; "Stacie Hoskins" <shoskins@co.jefferson.wa.us> Monday, October 02, 2006 8:53 AM RE:SEPA Les, Log Item 115 of SUB05-Q004 is a certificate of mailing of staff report and MONS. Log Item 114 from this same file is the Staff Report and MONS. This was mailed out on July 26, 2005. There were no appeals to the SEPA MONS. At this time, the SEPA MONS stands without being appealed and your request for special standing in the present application is not being reconsidered. The date of the hearing is based upon availability of the Hearing Examiner, County staff and the applicant. Members of the public unable to attend any hearing in this County are always welcome to have a representative present their statement. As always, statements and perspectives can also be sent by U.S. mall or emall. Respectfully, Barbara Nightingale M.M.A., MAS. Associate Planner Port Ludlow Master Planned Resort Jefferson County Oept. of Community Development (360) 379-4472 bnightingale@co.jefferson.wa.us From: Powers & Therrien (mallto:powers_therrien@yvn.com] Sent: Sunday, October 01, 2006 6:29 PM To: Barbara Nightingale Cc: Powers & Therrien SUbject: SEPA Barbara: I may have missed it, but I did not see a log item that showed a mailing of the MONS decision on or about July 26th. I have trouble believing that it would not have been sent to me since my views on the decision in preliminary form were solicited and I responded with my criticism. I also have problems understanding why my response on or about July 24th was not sufficient to give notice to DCD of my appeal to Mr. Cassaux, particularly in light of the deference given to PLA to defer the September 22d hearing because it allegedly missed a posting. I ask that OCO reconsider this matter. Les Powers Powers & Therrien, P.S. 3502 Tleton Drive Yakima, WA 98902 Phone:509h453-8906 Fax:509-453-Q745 This emall 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 emall from your computer. LOG ITEM # (6~ Page '1 of 10/13/2006 e e Page 2 of2 .. 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. . # I~~ ~TEM / Page ~ of 10/1312006 .. e e Page 1 of 1 e e Barbara Nightingale From: Powers & Therrien [powers_therrien@yvn.com] Sent: Monday, July 24, 2006 3:24 PM To: AI Scalf; Barbara Nightingale Cc: Powers & Therrien Subject: Les Powers' Comments to MLA06-00221 SEPA Response 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, W A 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 may contain confidential information intended only for the use ofthe 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 notity the sender and delete this email from your computer, LO~M ceJ-- # # . /{1 pag~. ~mdl:' 7/26/2006 " e e e - July 24, 2006 Via Emai/ MR. AL SCALF MS. BARBARA NIGHTINGALE Jefferson County Department of Community Development 621 Sheridan Street Port Townsend; WA 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! 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, 200S (the "Staff Report") addressing the proposed project prior to the open hearing thereon before Hearing Examiner Berteig in August, 200S, 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 200S. It proposes to construct "a l20-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 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 # I~~ ITEM Page -; of e , e 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 oftime during a three year period. Please note that the proposed amendment no. I ("Amendment I"), 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 thaI does not obtain under the Trend West vacation point program. See RCW 64.34.020(9); RCW 64.36.010(11); Amendment I, 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. J 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 of the 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 lime 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. ~ 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 lOG ITEM # / ~--g ! Page ~ of e , e - 3 # (~~ IT{:M Page r of 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 Maniot. 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 e~uivalent to a resort or hotel and not a residential use to which Ludlow Cove II is zoned. 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 ofany 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. to 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. I) 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 forcapital costs and maintenance. Mr. Verrue further admitted that the combined losses PLA is suffering in the golf course, Harbormaster and Inn are about $1,000,000 per year. I have not verified Mr. Verrue's statement. 7 Decision of AHE Galt on December 7, 200S, Conclusion 21. 8 Log Item 41. 9 The PLVC agreed to support Trend West under the condition that it submit to a set ofCC & 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 srstem is operated by the PL VC. Trend West has elected not to be subject to the PL VC. I 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 I, 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. e . e - Among the factors which should be considered by OCD 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 MONS 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 MONS 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 fulIy 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), (b), (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 welI 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. IZ JCC 18.40.800(2)(c) provides that DCD may deny or condition approval ofthe project under WAC 197- 11-660(1)(a) and (t), 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 UOC. 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 ofintegration,selfcontainment, concurrency and purpose applicable to master planned resorts are set forth in the UDC, principalIy, 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 fermitted residential use simply does not address in analysis or conditions the legal requirements. 3 The conclusion in Mr. Berteig's 2002 opinion that Ludlow Cove II was zoned single family or general with a multifamily conditional use under the JUGA is in error. The property was originally zoned multifamily in the JUGA. 1 raise this matter not because it changes the result but because it shows the lack 4 lOG ITEM # ~~ Page UJ- of M51/ e , e - 5 ~'TEM # [10 tb Page LlY< of_ ~ I &G~ 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."IS 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 MONS. 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."ls 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. Galt 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 seehow wide oftbe mark this conclusion is. The Seventh Recital states: Wbereas, Olympic Resource Management has agreed that vested preliminary plat applications within the Master Planned Resort shall be subject to the terms and provisions of tbis ordinance. .. Moreover, in the Development Agreement wbich 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 tbe Port Ludlow MPR Zoning Code chapter oftbe 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 ofthe 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 lUly 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 YC, 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. IS Staff Report, Para. 23-30, and, particularly, 30. 16 Staff Report, Para. 31. See discussion, Footnote 14. 17 ARE Galt Opinion, Para. 5, 7, 8. 18 ARE Galt Opinion, Para. 9. While Mr. Berteig replied concurring in his prior opinion, in March, 2006, that reply remains stayed until tbe disposition of the pending LUPA Petition of Mr. Galt's opinion. In the workshop, Mr. De Sa e Silva concurred in that conclusion. , e 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.I9 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 11.20 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 MONS 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 safe~4 and the coinment of Mr, 19 AHE Galt Opinion, Para. II. 20 AHE Galt Opinion. Para. 12. 21 AHE Galt Opinion, Para. 17-20. 22 AHE Galt Opinion, Para. 21, 22. I believe the property was actually zoned multifamily in the JUGA. 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 _ ~.G TEM # I. \Jof() Page of \1---- cG~ e , e e 7 LOG ITEM _, #!.~ 1l9!b ttr~ Page .:p?f::. of \~ 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 ofland 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.28 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 ofthe 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 of200 feet.3o 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 11. 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 shouldrat least be further developed by the Staff Report. 30 Staff Report, para. 47. 31 Compare Staff Report, para. 22 and 31 with 46. It , e e 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, contaminants 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 requiredfor an HPA. 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 notjustified.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. B 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, tbe test is that the mitigation proposed by the proponent sufficiently addresses tbe probable significant environmental impacts, See WAC 197-11-350. 34 WAC 197-11-340(1)(a)(v), I(c)(ii), l(d)(iii), l(e)(v), 2(a)(iii), 2(b)(i), (ii), (iv), and (v), l(c)(iv), l(d)(ii), 1 (d)(iv), (vii), and, (ix), 8 LOG I~ ,.cV #GA. (/C/ Page ~ of \~ , .. e . e . the property is not ~art of the MPR. As Mr. Galt notes, the application may be vested, the property is not. S Clearly the absence of meaningful recreational opportunities admitted by Mr. Helm is sufficient to ndses 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 minimwn it must be addressed. I think these issues need to be revisited. I am not certain that an MONS is appropriate. Certainly the current Staff Report does not provide support for same. 9 lOG 'TEM ~. #~.JWLCEL page~Of lti" Based on the foregoing, I urge that an MONS 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 d~</'/'~~{' Leslie A. Powers 44 Heron Road Port Ludlow, WA 98365 35 AIlE Galt Opinion, p. 14. 36 See RCW 36.70A020(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. H2!m. 155 Wn.2d 112,128, 118 P.3d 322 (2005) e e . , JEFFERSON COUNTY DEPARTMENT OF COMMUNITY DEVELOPMENT RECEIVED JUN I 6 2006 POWERS & THERRIEN, P.$. 621 Sheridan Street Port Townsend, WA 98368 AI Scalf, Director June 23, 2006 Dear Reviewer, RE: MLA06-00221 . Location: Parcel Number 968 800 102 in Section 17, Township 28, Range 01 East, WM, located on Paradise Road at Breaker Lane, Port Ludlow, WA 98365. Jefferson County has foiwarded the attached application to you for review and comment because your agency is responsibl~ f~~.q~ferml'1illg 9.9mpliance with state and federal requirements or may otherwise-be.affected by the following proposal.This project includes a proposed amendment to the existing Port Ludlow Master Planned Resort Code (MPR Code) to allow "timeshare" use for a 12o-unit residential development within the Port Ludlow Master Planned Resort situated on 14.66 acres identified as Tract E of the Ludlow Cove Development. The proposal changes the current density from 4 dwelling units per acre (4:1) pursuant to the County Comprehensive Plan to the previous density of 16: 1 in accordance with the 1995 Interim Urban Growth Area (Ordinance #01-0117-95). The proposed project includes six residential timeshare buildings, one reception/recreation building, a private road system, recreational amenities, including a private swimming pool, outdoor barbecues, spas, and public and private trails. The proposed project will be served by public water, sanitary sewer systems, and a storm drainage system. An existing wetland and stream, together with associated buffers, are located in a native growth protection easement, the boundaries of which are established as part of the Ludlow Cove Division 2 platting process. No work Is proposed below the Ordinary High Water Mark (OHWM) of Port Ludlow Bay. Vehicular access to the new development will be provided via a new private road off Paradise Bay Road. Residential development is a "primary use" within the urban shoreline environment. A site plan, storm drainage plan, water and sewer plan, landscaping plan, and building elevations diagram are attached to this application. Geotechnical reports, traffic.assessment, habitat management plan, and archaeological resources and traditional cultural places assessment have also been completed and are available for your review. This project will require a Jefferson County Shoreline Substantial Development Permit, Jefferson County Building Permits Construction Plan Approval, and Hydraulic Project Approval from Washington Dept. of Fish and Wildlife for the discharge of stormwater. If the proposal is approved, policies and performance standards found in the amended 1994 Critical Areas (Ordinance No. 14-0626-95) and the 1989 Shoreline Management Master Program will be used - to form permit conditions intended to mitigate adverse environmental impacts. Additional conditions or mitigation measures may be required under SEPA. This proposal is subject to environmental review and threshold determination under the State Environmental Policy Act (SEPA). The Department expects to adopt an existing environmental document, Mitigated Determination of Non-Significance and Lead Agency Status, prepared July 26, 2005, and issue a DNS for this proposal. This may be your only opportunity to comment on the environmental impacts of the proposal. Comments must be received within thirty (30) calendar days of the published public notice or by July 24, 2006. If no written response has been received within thirty (30) days, your agency will be presumed to have no comments. If necessary, the UDC administrator may grant an extension of time for comment. Please contact Barbara Nightingale at (360) 379-4472, if you desire an -eKtensfefKlHime or-have-additiona\--qtlestions.regardingihis.proposal;--'- _______m - -- -- Building Permits/Inspections Development Review Division Long Range Planning (360) 379-4450 ascalf@co.lefferson.wa.us FAX: (360) 37t.OO ITEM :#!:::7< /08 _______________Page Di( of 110 WI--- .......".........:!"...---.-"",.-..... e e ~.' . ...-.~....;' .l ,; .! ....~..I::: }'" Thank you in advance for your attention to this matter. Sincerely, c: NICOLE FAGHIN, REID MIDDLETON 7650 OAK BAY RD, JCFPD #3 , CITY ,OF PT - BLD/COMM DEV POBOX 278, CHIMACUM SCHOOL DISTRICT 49 , CITY OF PT - BLD/COMM DEV ATTN: TO~ AU MOCK, CITY OF PT FIRE DEPARTMENT LINDA ATKINS, JEFFERSON COUNTY HEALTH DEPART 31974. LITTLE BOSTON RD., PT GAMBLE S'KLALlAM TRIBE -ERIC~ DIRKSON, PORr TOWNSEND LEADER PO BOX 929, JEFFERSON CO PUD #1 SHERRIE SHOLD, JEFFERSON CO ASSESSOR 1615 W. SIMS WAY, JEFFERSON TRANSIT JIM PEARSON, JEFFERSON CO PUBLIC WORKS PO BOX 1180, PORT OF PORT TOWNSEND LEROY PATTERSON, WSD OF TRANSPORTATION OLYMPIC JEFFREE STEWART, DOE SHORELANDS OFFICE ATTN: BETSEY DICKS, DOE SEPA REVIEW LEANNE JENKINS, PLANNING DIA., JAMESTOWN S'KLALLAM TRIBE SHELLY AMENT, WDFW RANDY JOHNSON, WDFW . WDFW SEPA REVIEW OLYMPIC REGION; CONNIE SALLEE, W A STATE DNR EXTERNAL PROJECTS. WA-STATE DNR SEPA REVIEW PO BOX 1906, O.E.C. JEFF CHEW, PENINSULA DAILY NEWS RICHARD SMITH, LMC GOVERNMENTAL AFFAIRS COM KOKO CRONIN, US ARMY CORPS OF ENGINEERS RANDI THURSTON, WDFW LOG ITEM # ~. llf/h c~L-- Page ~ -of +7-- e e October 13,2006 Mr. Al Scalf, Director Department of Community Development Jefferson County 621 Sheridan Street Port Townsend, WA 98368 RE: Ludlow Cove Division 2 - MLA06-00221 Dear Mr. Scalf: I am affected by the decision. I own 44 Heron Rd., Port Ludlow, Washington. I am a resident of Port Ludlow and Jefferson County. My residence and Ludlow Cove II are all within the Port Ludlow Master Planned Resort as well as the Pope Property as defined in the Development Agreement. I 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 I relied in purchasing my residence. I have submitted an appeal within fourteen (14) days of notice by inclusion ofa reference to the threshold determination to rely on the Threshold Determination approved July 26, 2005 with respect to SUB05-00004, that the project qualified under a MDNS. I did not appeal the threshold determination in 2005 for SUB05-00004. The Staff Report upon which the MDNS was based reached its conclusion that an MDNS met SEPA requirements based upon a classification of the proposed Trend West use of the property as residential. That classification was rejected with the approval of the application by AHE Galt on December 7,2006. AHE Galt concluded that the proposed use was transient and commercial and not residential under the Zoning Code in effect in 1995 when the application was originally made, that the use would not have been permitted under the MPR Zoning Code considering the zoning of the property as single family residential, and that the type of ownership of the property, nominally timeshare, did not affect the decision. Mr. Galt's opinion was not stayed and represents the final action of Jefferson County on the matter. The undersigned and a co-appellant also appealed the SSDP approved by Jefferson County after a favorable hearing on the consolidated permit application SUB 05-00004, the 2005 application to which the July 26, 2005 MDNS relates. The SHB concluded that the SSDP had not been approved by final action of Jefferson County and vacated Mr. Berteig's approval of same. The conclusion it reached was that Jefferson County violated the rights of the undersigned and others by not giving notice of right to appeal HE Berteig's approval of the SSDP for SUB05-00004. # df!J.'TD~ 0 Page ~ of \~ cev . e Mr. Al Scalf, Director Department of Community Development Jefferson County October 13,2006 Page 2 To avoid the result of Mr. Galt's decision, the applicant applied to modify the zoning on the subject property by amending the Development Agreement covering Pope Property to state that a time share use is a residential use, that the Trend West use is a time share, and that time share use is permitted on the subject property. The application is filed under MLA06-00221. The proposed amendment of the development agreement between Pope and Jefferson County for the development of the Pope Property within the MPR of May, 2000 was associated with an application for an SSDP. The effect of the amendment if allowed would spot zone the subject property, now residential, as commercial. Jefferson County DCD solicited SEP A responses from governmental agencies and from the undersigned on its decision to apply the July 26, 2005 MDNS and staff report associated therewith to the new application, MLA 06-00221 now before the HE by notice sent June 23, 2006. The undersigned was an addressee. A copy of the notice is attached as Exhibit A. There are other governmental addressees. It is part of SEP A compliance for MLA06-00221. The undersigned responded on July 24, 2006 under Log Item 99, copy attached hereto as Exhibit B, dissenting the use oflast year's MDNS based upon Mr. Galt's decision that vacated the underlying permits and the SHB decision that vacated the SSDP, and, specifically, upon Mr. Galt's conclusion that the proposed use, regardless of the form of ownership, was transient, a commercial, not a residential use, and not permitted on the subject property . The undersigned was provided no notice of DC D's final threshold decision respecting the use of the MDNS and Staff Report from SUB05-00004 to meet the requirements of MLA06-00221. The undersigned only discovered that threshold decision in the review of the DCD Staff Report issued in connection with the hearing before the HE originally scheduled for September 22, 2006. Within fourteen (14) days of receipt ofthat Staff Report, the undersigned filed an appeal of the threshold determination pursuant to JCC 18.40.280(3) and 18.40.810(7). On October 2, 2006, the undersigned received an email from DCD, copy attached as Exhibit C, informing the undersigned that he had not timely appealed because his appeal had not been received by August 10th. The undersigned reviewed the Log and determined that no notice of decision or appeal were sent. The undersigned made further inquiry and discovered that the August 10th in question was August 10,2005 and that the response made reference to the appeal of the threshold deteremination for SUB05-00004 and not MLA06-00221. In other words, notwithstanding the solicitation ofSEPA comments in connection with MLA06-00221 from the undersigned and others, DCD cut off appeal rights of the undersigned based on responses to a prior application including the project in another form and with different legal implications. If SEP A comment was solicited, why would the recipients of the request not have the right to appeal a decision by DCD that conflicts their comments? The undersigned, after investigation of the matter responded by email to DCD setting forth the legal basis for the undersigned's right of appeal and the legal requirement that DCD' s action on MLA06-00221 be considered a threshold determination for this purpose. A copy of such response is attached hereto as Exhibit D and is incorporated by this reference as additional basis for this appeal. DCD has not responded. ~EM # I. . lw~ Page . of 11 Gbi-. e e Mr. Al Scalf, Director Department of Community Development Jefferson County October 13,2006 Page 3 While it is true that the applicant seeks to change the result by modifying the Development Agreement to permit time share use on a property not zoned for same, that proposal is only effective of the BoCC approves it by legislative action and it is not overturned on appeal. It is not the current state of the subject property or the current final action of Jefferson County thereon. Further, the consolidated permit application associated with MLA06-00221 does not directly authorize any site specific use of the property. To say that the property may be used for single and multifamily residential use, including time share use as defined from RCW 64.36.010(11), language incorporated directly into the proposed amendment to the development agreement, is not to identify a specific improvement and use to the subject property and approve that specific improvement and use. The proposed amendment attempts to bridge this gap by incorporating by reference the September 2, 2005 decision of HE Berteig that was itself vacated by Mr. Galt on December 7,2005 as to the substantive permits and the SHB as to the SSDP. There is no "HE Berteig Opinion to incorporate by reference. It has been completely vitiated and disposed of by the AHE Galt decision. Thus, properly viewed, the application does not provide site specific guidance of use needed to make a SEP A determination or an SSDP determination at all. To accomplish that result, a binding site plan or a conditional use permit application with complete legally enforceable controls applicable to the use of the property would be required. Moreover, incorporating by reference bits and pieces of an extensive log that is not included in the Log for MLA06-00221 that is before the HE can only generate confusion at best and a misleading application and record creating difficulties and notice issues on appeal at worst. Substantively, the absence of this included information and the statement of SEP A compliance with reference to this actual application as it actually stands makes MLA06-00221 a materially different application than SUB05-00004. Separate SEP A compliance should be required. Consolidated permit applications must be inclusive and heard together. SEP A issues must be addressed in the hearings disposing of the substantive permit applications. Here, the decision to apply last year's MDNS to this year's application without according independent SEPA review and appeal obviously violates the undersigned's rights to notice and appeal. It makes impossible the disposition of the consolidated permit application. The issue raised by the undersigned must be resolved preliminary to the hearing on the substantive permit issues. The undersigned has requested that DCD correct its SEP A compliance by giving notice to interested parties of its threshold determination to rely on the materials from last year's MDNS and to permit the appeal thereof. DCD has refused to do so. Any delay that results from granting the petition of the undersigned is not the result of this appeal but is the result of DCD' s unwillingness to permit the undersigned to participate in the hearing as a party on appeal and unwillingness to follow proper procedures in handling threshold determinations and to correct its actions after being advised of the problem. See attached response to DCD. The undersigned asks the HE to determine that DCD has failed to comply with SEP A and JCC 18.40.780(5) by failing to send notice of the decision, in effect, its threshold determination to use a prior application MDNS for MLA06-00221, to the undersigned to permit the undersigned to LOG ITEM . ~ag:Jt of ~ IY- ft) . WI-- ~ . -- - ------------- -- --- -------- ----- Mr. AI Scalf, Director Department of Community Development Jefferson County October 13,2006 Page 4 appeal and JCC 18.40.810 by refusing to permit the undersigned to appeal the decision simply to use the threshold determination from SUB05-00004 despite its erroneous conclusion that the Trend West use is residential. It is absolutely clear that DCD knows that SEP A compliance is required with respect to MLA06-00221. Otherwise, why would DCD solicit SEP A comments thereon and on its plan to utilize a prior MONS? To deny appeal rights on a decision reached after soliciting SEP A comments is to deny due process and to violate the procedural rules applicable to SEP A compliance. The undersigned further asks that the HE set over the hearing on the substantive consolidated permit application pending compliance with the notice and appeal procedure applicable to its threshold determination with respect to MLA06-00221. I have read this appeal and believe it to be factually and legally well grounded and correct. Because I 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. ~~y~ Leslie A. Powers 44 Heron Road Port Ludlow, W A 98365 LOG \TEM ,(2. c& L-- :;g~o1~;P 1-\ 1-~