HomeMy WebLinkAboutLog182
,-
f'"
:~
11
12
13
14
15
16
17
18
19
20
21
22
23
>-
~ 24
c::>>
C-:) 25
L&.I
...I
-
.....
,
2
3
4
5
6
.
e
SUPERIOR COURT OF WASHINGTON FOR JEFFERSON COUNTY
7"
LESLIE A. POWERS, an individual,
8
9
Plaintiff:
10
vs.
JEFFERSON COUNTY, a political
subdivision of the State of Washington; and"
PORT LUDLOW ASSOCIATES, LLC, a-
Washington limited liability company,
Respondents.
)
)
) NO.
)
) LAND USE PETITION UNDER RCW
) CHAPTER 36.70C
)
) (pETITION FOR RELIEF UNDER LUP A,
) FOR DECLARATORY RELIEF AND FOR
) OTIIER JUDICIAL RELIEF)
)
)
)
1. Name and Mailine. Address of Petitioner
Leslie A. Powers
44 Heron Road
Port Ludlow, W A 98365
2. Name and Mailine. Address of Petitioner's Attorneys
Leslie A. Powers, Pro Se
Powers & Therrien, P .S.
3502 Tieton Drive
Yakima, W A 98902
3. Name and Mailing Address of Local Jurisdiction
Jefferson County
1820 Jefferson Street
P.O. Box 563
Port Townsend, WA 98368
LUPA PETITION -1
1~ITEM
# (1
Page ( of 9
a5 d
#
POWERS & mERRIEN, P.S.
3502 TlETON DRNE
v. <\K1MA. W ASlllNGTON 98902
509-453-8906
I
-
e
4.
Decision-Makine: Body or Officer
2
Jefferson County Appellate Hearing Examiner.
3 A copy of the email is attached to this Land Use Petition and is identified on its face as a
4 email issued October 2, 2006, from Baroara Nightingale, Subject: RE: SEP A, in reference to
5 SUB05-0004.
6
5.
Identification of Parties
7
a.
Leslie A. Powers
8
b.
Jefferson County, Washington
9
c.
Port Ludlow Associates LLC
10
6.
Standing
11
a.
Petitioner owns real property improved as a townhome with a street
12 address of 44 Heron Rd., Port Ludlow, Washington. Petitioner is a resident at that address.
13
b.
Ludlow Cove II is located on the shore of Ludlow Bay along the
14 estuary to Ludlow Creek, a salmon bearing stream. Ludlow Cove II and Petitioner's
15 residence are each part of the Ludlow Bay Master Planned Resort, the "Pope Property" under
16 and as defined by the Development Agreement, and are subject to a common set of covenants,
17 conditions, and restrictions affecting the entire Pope Property. As a result, Petitioner has a
18 recognizable interest in Ludlow Cove II. an interest in real property in Ludlow Cove II and an
19 interest in the development of the Pope Property in a manner consistent with its status as a
20 part of a master planned resort subject to land use restrictions and zoning protections therein.
21
7.
Statement of Errors Committed
22 Jefferson County Department of Community Development ("DCD") is the lead
23 agency with respect to SEP A compliance for Ludlow Cove II. DCD erred as follows:
24
a.
in determining that it could comply with SEP A with respect to
25 MLA06-00221 (the "2006 Application"), by adopting without independent review the
LUPA PETITION-2
POWERS & TBERRlE~. P.S.
3502 TlEfON DRIVfF
YAKIMA. WASHlNGTON.,.28902
509-453-8906 ~Cl~e
,
-
e
1 modified determination of nonsignificance (the "MDNS") that it issued as a threshold
2 determination with respect to SUB05-00004 (the "2005 Application'') without an independent
3 threshold determination with respect to the 2006 Application. The country has also erred in
4 failing to consider the erroneous classification of Trend West use as residential as determined
5 by Appellate Hearing Examiner Galt in his decision vacating the 2005 Application. HE Galt
6 found because the proposed Trend West use is in fact transient and commercial and not
7 residential. All in of these actions by the County are in violation of WAC 197-11-330;
8
b.
in failing to take into account the actual, not probable significant
9 adverse impact resulting from the location of a commercial operation in the form of a Trend
10 West resort on shore1and located on the estuary of Ludlow Creek, that is zoned single family
II residential;
12
c.
in failing and refusing to acknowledge that its decision to use the
13 MONS for the vacated 2005 Application for the 2006 Application constituted a threshold
14 determination as to the 2006 Application which requiring notice to interested parties,
15 including Petitioner and the opportunity to appeal administratively;
16
d.
in failing to give Petitioner notice of its decision to comply with SEP A
17 with respect to the 2006 Application by adopting the MONS for the vacated 2005 Application
18 in violation of JCC 18.30.330(2);
19
e.
in failing and refusing to give Petitioner the right of administrative
20 appeal of its decision to comply with SEP A with respect to 2006 Application by adopting the
21 MONS for the vacated 2005 Application as required as a matter of due process under the
22 United States and Washington Constitutions and under ICC 18.30.220(2),230, and 330(2)(a)
23 and (b).
24
8.
Statement of Facts
25
LUPA PETITION - 3
POWERS & mERRlEN, p~OG iTE
3502 TIEfON DRIVE '
Y AKlMA, W ASHlNGdf)N 98902 '1
509-453-896~ .
--c--Page3_ of
,
.
e
1
a.
Petitioner owns real property improved as a townhome with a street
2 address of 44 Heron Rd., Port Ludlow, Washington. Petitioner is a resident at that address.
3
b.
Port Ludlow Associates, LLC (''PLA''), is a successor to Olympic
4 Resources ("Pope") under a development agreement (the "Development Agreement") with
5 Jefferson County initially dated in May, 2000.
6
c.
PLA owns a plat called Ludlow Cove ll. Pope originally applied for
7 the Ludlow Cove IT in 1995. In 2002, Hearing Examiner Berteig held a hearing on the
8 Ludlow Cove IT Plat. He found that the Ludlow Cove II Plat was vested in 1995 for land use
9 purposes, that it was zoned for single family use and that a permitted conditional use was
10 multifamily residential.
11
d.
Ludlow Cove II is located on the shore of Ludlow Bay along the
12 estuary to Ludlow Creek, a salmon bearing stream. Ludlow Cove II and Petitioner's
13 residence are each part of the Ludlow Bay Master Planned Resort, the "Pope Property" under
14 and as defined by the Development Agreement, and are subject to a common set of covenants,
15 conditions, and restrictions affecting the entire Pope Property. As a result, Petitioner has a
16 recognizable interest in Ludlow Cove II. an interest in real property in Ludlow Cove II and an
17 interest in the development of the Pope Property in a manner consistent with its master
18 planned resort classification and zoning protections.
19
e.
Under the Development Agreement and the MPR Code, the
20 development regulations for the Port Ludlow Master Planned Resort, and under the
21 Comprehensive Plan, Ludlow Cove II is zoned single family residential. Multifamily use is
22 not permitted.
23
f.
In January, 2005, under the 2005 Application, PLA applied to develop
24 Ludlow Cove II as a Trend West Resort. PLA and Trend West falsely represented in their
25
LUPA PETITION - 4
LQG' EM
POWERS & THERRlENfP.s.l~J!L.
3502 TIETON DRNE
YAKJMA. WASHINGTON..~e. U - f
509-453-8906 g,~.-I---
,
.
e
1 application that the Trend West Resort was a residential application, a condominium time
2 share project.
3
g.
The Washington Department of Ecology responded to the 2005
4 Application questioning whether the Trend West use was residential and whether it should be
5 permitted at Ludlow Cove II.
6
h.
Jefferson County Department of Community Development ("DCD"),
7 the lead agency for SEP A purposes, made a threshold decision to comply with SEP A as to the
8 2005 Application by issuing a modified determination ofnonsignificance (the "MDNS'').
9 Petitioner did not separately appeal the MDNS.
10
i.
Petitioner and others challenged the residential nature of the Trend
11 West use under the 2005 Application in an appeal to Appellate Hearing Examiner Galt as to
12 the binding site plan and substantive permits and separately on procedural grounds the
13 shoreline substantial development permit (the "SSDP") to the Washington State Shoreline
14 Hearing Board (the "SHB''). On December 7,2005, ARE Galt found in favor of Petitioners
15 and co-appellants that the proposed Trend West use was transient and thus commercial under
16 the applicable zoning law, either based on the zoning in effect in 1995 or at the time of the
17 Development Agreement. ARE Galt vacated HE Berteig's decision to approve the 2005
18 Application as to the binding site plan and substantive permits. In 2006, the SHB found for
19 petitioner that the SSDP had not been properly approved by Jefferson County and vacated the
20 SSDP contained in the 2005 Application. PLA filed a LUP A petition with respect to ARE
21 Galt's decision but did not move to stay ARE Galt's decision. ARE Galt's decision and the
22 SHB decision as to the 2005 Application are the final action of Jefferson County.
23
J.
In March, 2006, PLA submitted a consolidated permit application to
24 approve the Trend West use and project on Ludlow Cove II through an amendment to the
25 Development Agreement permitting "time share use" as a residential use and single family
POWERS & TBERRlEN.'ll'..,~e of
3502 TlETON DRIVE' -a!:J
y AKlMA, W ASHlNGTON 98902
509-453-8906
LUP A PETITION - 5
,
-
e
1 and multifamily use as directly permitted principal uses on Ludlow Cove II as the 2006
2 Application. A new application for an SSDP was included in the Consolidated 2006
3 Application. The actual projected use remained the same. The 2006 Application contains a
4 description of the use from the 2005 Application but does not contain a binding site plan
5 committing the use to Ludlow Cove II. The 2006 Application proposes to adopt HE Berteig's
6 decision approving the 2005 Application and its Washington State Environmental Protection
7 Act, Chapter 43.21C, RCW, ("SEPA") compliance. That decision and the 2005 Application
8 were vacated by ARE Galt and haves no further legal effect.
9
k.
In June, DeD sent a notice to Petitioner and others soliciting their
10 response to a proposal to use the MONS and SEPA compliance associated with the 2005
11 Application for the 2006 Application. In July, Petitioner timely objected. In July, the DOE
12 repeated its objection filed with the 2005 Application.
13
1.
After filing his objection and comments, Petitioner received no further
14 notice from DCD as to its disposition of the proposal to reissue the MDNS for the
15 2005Application as SEP A compliance for the 2006 Application.
16
m.
In September, 2006, DCD provided Petitioner with a copy of a staff
17 report supporting the 2006 Application. It contained a reference to the decision to reissue the
18 MONS from the 2005 Application as SEP A compliance for the 2006 Application.
19
n.
Petitioner timely filed a petition with DCD to have an administrative
20 appeal of its decision to reissue the MONS from the 2005 Application as SEP A compliance
21 for the 2006 Application. Petitioner's objection includes, inter alia, reference to the change of
22 use of Ludlow Cove II from lower density residential use to commercial use without
23 disclosure or mitigation appropriate to the change. Petitioner urged that the change
24 represented at least a probable significant impact that was appropriate to a determination of
25 significance and full SEP A compliance. Petitioner urged that the determination of AHE Galt
LUPAPETITION -6
POWERS & THERRIEN, P,.S. A !:;9G'TEM
y~Ji:[~g= 98~-L /I!l
___~_~~~3-8906 Page 6 _ oi~
-
,
.
e
1 that the proposed Trend West use is transient and commercial changes the basis of the
2 conclusion ofDeD that the Trend West use is residential that formed the legal and factual
3 basis for its MDNS issued in connection with the 2005 Application. PetitiOIler urged that the
4 MDNS issued in connection with the 2005 Application cannot be used in connection with the
5 2006 Application because it was based on the erroneous classification of the Trend West use
6 as residential rather than commercial as found by AHE Galt. Petitioner finally urged that a
7 legislative act, approval of the proposed amendment to the Development Agreement by the
8 Jefferson County Board of County Commissioners cannot by change of definitions in the
9 Development Agreement change the factual nature of the subject use as found by AHE Galt.
10
o.
On October 2, 2006, by email, DCD notified Petitioner that his appeal
11 of its decision to use the MDNS from the 2005 Application to comply with SEP A under the
12 2006 Application was rejected as not timely because Petitioner had failed to appeal the
13 MONS when it was issued as a thresho1ddetennination in July, 2005, in connection with the
14 2005 Application. In other words, DCD considers that for purposes of SEP A the 2005
]5 Application and 2006 Application are a single application notwithstanding AHEGalt's
16 vacation of the 2005 Application and the decision of HE Berteig that approved it.
17
p.
Petitioner timely filed an appeal of DC D's decision not to permit
]8 Petitioner's appeal of DC D's decision to use the MONS from the 2005 Application to satisfy
19 SEP A compliance for the 2006 Application. DCD has not resPonded to Petitioner's notice of
20 appeal.
21
q.
Petitioner urges that DCD made a threshold decision with respect to the
22 2006 Application when it decided to comply by use of the MDNS from the vacated 2005
23 Application, that DCD failed to give notice to Petitioner of such threshold decision as
24 required by law, that DCD knew full well that jt had made a threshold decision as evidenced
25 by its solicitation of SEP A comments for the proposition that it could comply with SEP A by
LUPA PETITION-7
ITEM
#
POWERS & THERRIEN, P.$..
3502 TlEfON DRIVE t-'age
YAKIMA. WASHINGTON. 98902
509-453-8906
of .___-.. .
,
.
e
using the MDNS for the 2005 Application to comply with SEP A requirements for the 2006
2 Application in June, 2006, that absent any other notice, the emai1 notice of October 2, 2006
3 must be seen as notice of final action by DCD on SEP A compliance for the 2006 Application,
4 and that Petitioner is entitled to petition the Court under LUP A to determine that Jefferson
5 County has not procedurally complied with the requirements of SEP A as to the threshold
6 decision to utilize the MDNS from the vacated 2005 Application as compliance with the 2006
7 Application and its decision not to permit administrative appeal rights and notice with respect
8 to such threshold decision.
9
9.
Relief Requested
10
a.
That DCD's decision to use the MDNS from the vacated 2005
11 Application to comply with the SEP A requirements for the 2006 Application constitutes a
12 threshold decision as to the 2006 Application;
13
b.
That DCD's decision to reject Petitioner's appeal ofits decision to
14 comply with SEP A requirements for the 2006 Application by using the MDNS from the
15 vacated 2005 Application is a final action exhausting Petitioner's administrative remedies and
16 entitling Petitioner to appeal judicially such decision under LUP A;
17
c.
That the SEP A compliance of Jefferson County with respect to the
18 approval of the 2006 Application by adopting and conflating the MONS issued on the vacated
19 2005 Application as SEPA compliance with respect to the 2006 Application be declared
20 legally defective and without legal effect;
21
- d.
That Jefferson County's failure to provide notice and an opportunity
22 administratively to appeal to Petitioner be declared a violation of the Jefferson County Code
23 and Petitioner's Constitutional right of due process;
24
25
LUPA PETITION - 8
LO'1ITEM
k-Q- r
POWERS & THERRIEN, PI/. / o_fJ..
350211ETON DRIVE W,
YAKIMA, WASIDNGTON 989i?age 0 01 __rl
509-453-8906
,
-
e
1
e.
That the matter be remanded to Jefferson County with direction to
2 comply with SEPA's and the Jefferson County Code's legal requirements of notice to
3 interested parties and administrative appeal of threshold decisions;
4
f.
By authority granted under RCW 36.7OC.1 00 and, subject to paragraph
5 (g) below by grant of a writ of mandating, prohibiting and conditioning any further
6 administrative or legislative hearings or approvals of the 2006 Application, whether ,
7 including without limitation, the hearing before HE Casseaux with respect to the SSDP and
8 advice on the proposed amendment to the Development and with respect to the hearing before
9 the BoCC relative to the approval of the amendment to the Development Agreement, be
10 stayed or prohibited until DCD has complied with the notice and administrative appeal
11 requirements of SEP A and the Jefferson County Code and due process as to Petitioner's right
12 to have notice of DC D's threshold detennination respecting SEPA compliance with the 2006
13 Application and the right administratively to appeal same;
14
g.
To the extent any relief cannot be granted under the provisions of
15 Chapter 36.70C, RCW, that such matter be bifurcated and treated as a separate action and
16 claim for relief based upon the facts alleged herein;
17
h.
For such other and further relief as the Court may award.
18
RESPECTFULLY SUBMITTED this 19th day of October, 2006.
19
20
POWERS & THERRIEN, P.S.
21
~..4r L-ALA/
Leslie A. Powers, WSBA #06103
Pro SE
22
23
24 Attachment: -Copy of the Email dated October 2, 2006
-Notice to Interested Parties of June 23, 2006 requesting SEP A comments on
25 the 2006 Application.
LUPA PETITION - 9
r!lOl
POWERS & THERRlENLP.S. '? .
3502 TlETON DRIVEfF 0
YAKIMA, W ASlllNGTON ~m ....
509-453-8906 rage
~ ,~,'ft"