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Home My WebLink AboutLog181 , . e October 31, 2006 Via Electronic Mail Stephen K. Casseaux. Jr. Jefferson County Hearing Examiner McCarthy Casseaux & Hurdelbrink 902 South 10dl Street Tacoma, W A 98405 Al Scalf, Director Barbara Nightingale, Planner Jefferson County Department of Community Development 621 Sheridan Port Townsend, W A 98368 . Re: Powers v. Jefferson County Jefferson County Superior Court Cause No. 06-2-00339-9 Appeal of SEP A Threshold Determination (Trendwest/Ludlow Cove Division II) Dear Mr, Casseaux, Mr. Scalf, and Ms. Nightingale: The undersigned -- Marco de Sa e Silva and Donald Marcy -- represent Port Ludlow Associates LLC and Trendwest, Inc., respectively. PLA and Trendwest are co-applicants for a shoreline substantial development permit, and PLA is the applicant for an amendment to the Port Ludlow Development Agreement dated May 1, 2000, to allow the development of a 120-unit Trendwest timeshare project on land currently owned by PLA, located in the unincorporated Port Ludlow Master Planned Resort, Jefferson County, Washington. We are writing to ask that Mr. Casseaux proceed to hold the November 3 hearing on the applications ofPLA and Trendwest, notwithstanding that Leslie A. Powers recently commenced an appeal of the MDNS under the Land Use Petition Act, RCW Chapter 36.70C, in the case of Powers v. Jefferson County, Jefferson County Superior Court Cause No, 06-2-00339-9. Background In January 2005, PLA submitted applications to Jefferson County for approval ofa 120-unit Trendwest timeshare resort project - identical in every feature to the project described in the applications now pending before the Hearing Examiner. The County issued an MDNS for the project on July 26, 2005. No one appealed the MDN8. The Hearing Examiner subsequently approved a shoreline substantial development permit and a binding site plan for the project. Mr. SEA 1900287v2 65364.13 SeaUle LOG ITEM # --l '1> \, -" _~_~o.~,,~<<".c'"' . Page --L....- Off , . e Stephen K. Casseaux, Jr. Al Scalf Barbara Nightingale October 31, 2006 Page 2 Powers and two other property owners (Rick Rozzell and Lewis Hale) appealed those decisions to the Jefferson County Appellate Hearing Examiner. On October 14, 2005, the Appellate Hearing Examiner ruled that the he lacked jurisdiction to hear the appeal of the Hearing Examiner's shoreline decision, and so he dismissed that portion of the Powers appeal. Mr. Powers and the other property owners subsequently appealed that decision to the Shorelines Hearings Board. On December 7, 2005, the Appellate Hearing Examiner reversed the Hearing Examiner's decision on the binding site plan and remanded the case for further proceedings. On December 27,2005, PLA and Trendwest appealed that decision to Jefferson County Superior Court under LUP A -- that appeal is not yet resolved. I . In the Powers appeal to the Shorelines Hearings Board, the Board held on May 17, 2006, that the Appellate Hearing Examiner had followed an improper procedure by not hearing the shoreline appeal. The Shoreline Hearings Board remanded the case back to the County for further proceedings. Those proceedings are on hold, pending the outcome of these proceedings before the Hearing Examiner. On June 8, 2006. PLA and Trendwest filed new applications for a shoreline substantial development permit for the Trendwest project and an amendment to the Port Ludlow Development Agreement. PLA and Trendwest asked that the two applications be consolidated in a single proceeding before the Board of County Commissioners, who then referred the applications to the Hearing Examiner to conduct a hearing and make a recommendation to the Commissioners. The proposed amendment to the development agreement subjects the Trendwest project site to the Port Ludlow Development Agreement (the application has been deemed vested under ordinances in effect on January 19, 1995, prior to the making of the development agreement) and changes the development standards applicable to the Trendwest project site to permit the proposed use at the proposed density. Sometime after the application was filed, the County decided to use the 2005 MONS in its review of the environmental impacts of the Trendwest project. On or after October 19,2006, Les Powers commenced an appeal under LUPA of the County's decision to use the 200S MONS. In his appeal, he did not name Trendwest as a respondent, although Trendwest is a co-applicant in the pending shoreline permit application. On October 27,2006, Mr. Powers moved the Court for a stay of state court proceedings and implied a hearing date of November 17. 1 Trendwest no longer seeks a binding site plan approval. SEA 1900287v2 65364-13 Seattle # lOr ITEM ~ 4 __~~"'~_'^~~~'"" Page .v ~ of _~~_ , - e Stephen K. Casseaux, Jr. A! Scalf Barbara Nightingale October 31, 2006 Page 3 Procedural Grounds on Which the Court Is Likely to Dismiss the Powers Appeal There are several procedural grounds on which it is likely the Court will dismiss the Powers LUPA appeal at the initial hearing to be held later under RCW 36.70C.080: . The LUPA appeal is untimely because it was commenced more than 21 days after Powers received notice of the County's decision to use the 2005 MDNS; . Powers failed to exhaust administrative remedies prior to commencing his LUP A appeal by appealing the County's decision to the Hearing Examiner, his administrative remedy under the Countts Land Use Application Procedures Ordinance, Ordinance No. 04~0828-98; . SEP A forbids orphan SEP A appeals -- the appeal of a SEP A procedural decision must be linked to the appeal of a substantive decision -- and the Powers LUP A appeal relates to a SEP A procedural decision only; and . Powers failed to name and serve Trendwest, the co-applicant for the shoreline permit, in violation ofRCW 36.70C.040(2)(b)(i). Substantive Grounds on Which the Court Is Likely to Dismiss the Powers Appeal The County's decision to use.the 2005 MDNS was correct -- no adoption, incorporation by reference, addendum, or other new SEPA decision is required under WAC 197-11-600(3) and 197-11-600(4). WAC 197-11~600(3) expressly requires the County to use the 2005 MONS unchanged because the County is acting on the same proposal that it evaluated in 2005. There has been no change to the Trendwest proposal- substantial or otherwise - since the 2005 MDNS was issued. And there is no new information indicating the proposal's probable significant adverse impacts. Therefore, no new environmental decision is required, See WAC 197~11- 600(3)(b). In addition, the SEP A Rules do not require either the adoption or incorporation by reference of the 2005 MDNS, or the making of an addendum. As for adoption, the rules provide, "Agencies acting on the same proposal for which an environmental document was prepared are not required to adopt the document," WAC 197~11-600(4)(a) (emphasis supplied). As for incorporation by reference, this option applies only when an agency "is preparing an environmental document" - in this case, Jefferson County is not preparing an environmental 2 In his letter dated October 27,2006, to Mr, Causseaux, Mr. Powers claims, "I filed an administrative appeal of OCO's SEPA compliance for MLA 06-00221 in September, 2006." This is inaccurate. An administrative appeal cannot be filed without payment of an appeal fee. Mr. Powers did not file an appeal fee relating to the Trendwest MONS. He therefore did not file an administrative appeal. SEA 1900287v2 65364.13 Seattle # _ {41G ITEM Oage .3 t{--- <. - of --I--- , - e Stephen K. Casseaux, Jr. Al Scalf Barbara Nightingale October 31. 2006 Page 4 document. And an addendum "adds analyses or information about a proposal" -- but there is no analysis or information the County has added or intends to add about the environmental impacts of the proposal. Conclusion There is no basis on which to believe either that the County's decision to use the 2005 MDNS was in error or that the Powers appeal will not be dismissed on procedural grounds at the initial hearing under RCW 36.70C.080.' Without either a Court order staying the proceedings, or a reasonable basis on which to believe the County's decision was mistaken, or a basis on which to believe the Court will reach the merits of the case after considering the procedural issues described above. the November 3 hearing before the Hearing Examiner should proceed as scheduled. Thanks very much for your consideration. Sincerely yours, 7lE~~~ CAIRNCROSS & HEMPELMANN, P,S. ~f.~ cc: Leslie A. Powers David Alvarez Diana Smeland Randy Verrue Troy Crosby Wayne Helm Lyn Keenan Mark Dorsey SEA 1900287v2 65364-13 Seattle # _1.i?G ITEM p age 4- of ~.-