Loading...
HomeMy WebLinkAboutLog185 e e October 16, 2006 Mr. AI Scalf, Director Department of Community Development Jefferson County 621 Sheridan Street Port Townsend, WA 98368 RE: SEPA Appeal of Trend West Ludlow Cove Division 2 - MLA06-00221 Dear Mr. Scalf: This letter supplements my previous filings of July 24, 2006, September 24, 2006, October 2, 2006, and October 13, 2006. I obviously have standing. DCD provided me notice requesting a response under SEPA of its proposed decision to use the MDNS and its supporting Staff Report on June 23, 2006 with a response date of July 24, 2006. The notice was sent to me and various government agencies and persons listed thereon. I responded on July 24, 2006 objecting to the proposal because it conflicted the final action of Jefferson County, AHE Galt's decision that the proposed use was transient and commercial and not residential. In further support of my demand to have my appeal of the threshold decision of the DCD to forego SEP A compliance on MLA06-00221 in favor of the adoption of the MONS for SUB05-0004, I offer the following additional analysis. AHE Galt Decision 1. As I have repeatedly noted, the proposed Trend West use has legally and factually been found to be transient, commercial, not residential, and not permitted on Ludlow Cove II as zoned under the Zoning Code or the MPR Code by AHE Galt in the fmal action by Jefferson County. That decision, albeit appealed, has not been stayed by the applicant in the LUP A petition that it filed. AHE Galt's decision vacated HE Berteig's decision as to 1he site plan and other permits contained in the consolidated permit application of the applicant other than the SSDP. The SSDP was vacated by the SHB. The MONS that I did not appeal was based upon the legal and factual conclusion set forth in the staff report that Trend West is a residential use. This conclusion, without regard to the nature of ownership, was rejected by Mr. Galt as the final action of Jefferson County. While I did not appeal the MDNS approved under SUB05-0004, I did participate in the successful appeal of the substantive permits leading to the vacation of Mr. Berteig's decision to approve same. By not appealing SEPA in 2005, I did not forego my right to insist on proper SEP A compliance in connection with MLA06-00221. I was asked by DCD to respond to the SEP A compliance issues ofMLA06-00221. I timely responded, LO~EM # /~3 Page ( of tt r- e e Mr. Al Scalf, Director Department of Community Development Jefferson County October 16, 2006 Page 2 SEP A Compliance Issues 2. I contest the notion that DCD can simply adopt an MDNS which was based on an erroneous interpretation of law and facts that has since been rejected by the final action of Jefferson County. In order to adopt the previous MDNS, WAC 197-11-630(1) requires Jefferson County to independently review the content of the previous SEP A documents and determine that they meet the adopting agency's environmental review standards and needs for the proposal. The Environmental Checklist contains the following questions: "8. Land and Shoreline Use e. What is the current zoning classification of the site? f. What is the current comprehensive plan classification of the site? 1. Proposed measures to ensure the proposal is compatible with existing and projected land uses and plans, if any:" AHE Galt found that the use was not permitted under wither the zoning to which PLAffrendwest claim the application is vested or under the MPR code. Given these determinations, do you not have to find a significant adverse environmental impact on land use? In other words, how can the County find its previous review adequate given AHE Galt's decision? Further, as I discuss below, given the AHE's decision, the use is not a permitted use within the shoreline designation. TIlls fact, too, causes the prior environmental analysis to be inadequate. 3. Ifknown, the adopting agency shall disclose in its adoption notice when the adopted document or proposal it addresses is the subject of a pending appeal or has been found inadequate on appeal. WAC 197-11-630(5). Clearly the County knows that the proposal the previous MDNS addresses was found inadequate on appeal. However, your notice does not state this. 4. The June 19,2006 Notice of Application also states that it is a Notice of "Pending 'Threshold Detennination." If the County is making a new threshold determination, as the notice clearly implies, then I may appeal it. Please consider this letter an appeal. SHORELINE MANAGEMENT ISSUES. 5. The issue of the classification of the proposed use is critical to the issue of the pennissibility of the proposed use at Ludlow Cove II because Ludlow Cove II is located in whole or part in a shore1and subject to the Shoreline Management Act (the "SMA") and its regulations (the "Regulations") and the Master Shoreline Management Program of Jefferson County (the "Program"). The Regulations distinguish use as to classification, regulation, degree of favored status and permissibility on a shoreland. See WAC 173-26-211, 221, and 241. These uses are required to be incorporated into the applicable local governmental shoreline management lOG ITEM # (oF Page -z...---of e e Mr. AI Scalf, Director Department of Community Development Jefferson County October 16, 2006 Page 3 program. They are incorporated in the Program with definitions. Program Sec. 2(83) defines a residence as "a dwelling and those structures and developments within a continuous ownership that are normal appurtenances. Program Sec. 2(84) defines residential development as the development ofland and/or construction or erection of dwelling units for the purpose of residential occupancy. Program Sec. 2(25) provides that commercial means uses that are involved in the wholesale or retail trade or business activity. Th.ese definitions attempt to address actual uses. They do not suggest a purpose of changing a use by expanding or contracting a definition as proposed by the applicant. Based on definitions consistent with these definitions that are contained in the Zoning Code, ARE Galt found the proposed Trend West use transient which is by nature commercial. The applicant seeks to avoid this result by redefining the term to include a Trend West use as residential for land use purposes applicable to Ludlow Cove II and to do so by legislative act of the BoCC redefining the terms residential and commercial as they apply to Ludlow Cove II under the Development Agreement. 6. The standards for residential and commercial use of the shoreland are different. Commercial use is only favored if it is water oriented. Nothing in the operation of a private resort, a use proposed by Trend West, is water oriented. In fact because of the fragility of the actual beach area of Ludlow Cove II, human access must be restricted. The only available public beach is located near the Inn at Ludlow Bay and Ludlow Village Townhome Plat and is not part of Ludlow Cove II. The remaining public water front is occupied by the marina, most of which is gated and reserved for private vessels. NOn water oriented commercial use is not favored' under the Regulation. See WAC 173-26-241(3)(d). It is clear that the Port Ludlow MPR as a whole is or should have been designated as "shoreline residential environment". See WAC 173- . 26-211 (5)(f). This designation applies to shorelines inside urban areas and inside master planned resorts subject to RCW 36.70A.360. It applies to single and multifamily residential development permitted within urban or master planned resort zones. The purpose is to "accommodate residential development and appurtenant structures." Attention to density, frontage width, setbacks, lot coverage limitations, buffers, shoreline stabilization vegetation conservation critical area protection and water quality are required. Equally required is the assurance of no net loss of shoreline ecological functions considering environmental limitations and sensitivity of the shoreline area as well as infrastructure and services available and other comprehensive planning issues. Multifamily and multilot use must provide joint use of community recreational facilities. Commercial development is permitted only if it is ''water oriented". 7. Considering the finding by ARE Galt that the proposed use is transient and commercial and not residential and further noting the obvious that it is not water oriented, it is clear that it is , not a permitted use on the shoreland at Ludlow Cove II. Yet the applicant seeks to avoid this result by redefining terms and hoping that the definition that impacts, inter alia, the Program, will trump all inconsistent ordinances, regulations and statutes that apply to the use of Ludlow Cove II. The Program was approved by the Washington Department of Ecology (the "DOE"). It may be amended only with the consent of the DOE. That consent has not been solicited in connection with the subject application. SHORELINE MANAGEMENT ISSUES AND SEP A LOGF #. (<1 pa.ge ..... rS of -- ----- - -e---- .--.- Mr. AI Scalf, Director Department of Community Development Jefferson County October 16, 2006 Page 4 8. Since the proposed application has placed at issue the classification of use and that classification has already been determined contrary to the applicant by final action of Jefferson County, the applicant's proposal cannot be reviewed under an MONS that is based on an erroneous classification of use even if it purports to change the classification by legislatively modifying tenns to permit the use. SEP A clearly applies to the shoreland use issues. Chapter 90.58, RCW and its concerns are incorporated therein. See WAC 197-11-444(2)(b) identifying the shore1and as an environmental matter. An MONS based on an erroneous classification of use cannot possibly meet the requirements of public disclosure, comment and appeal unless that declaration is itself subject to appeal rights promised by ICC 18.40.810. The present MONS directly conflicts the proposed use. It would only be supported if that use could be legislatively modified. Since it is factually driven, it is totally unclear that such a result could obtain. 9. Since as proposed, the use is directly barred by WAC 173-26-2l1(t) as a non water oriented commercial use in a shoreline residential zone, that proposed use requires more than an attempt to avoid SEP A compliance by adopting an MONS that incorrectly concluded the proposed use was residential where Jefferson County has determined that the use is commercial. It is clear that the approval of the proposed use has an independent significant environmental impact considering the factors set forth in WAC 197-11-444(2)(b). It is clear that the use is more than probable. It is certain. Its construction directly violates an environmental regulation promulgated under an environmentally oriented statutory complex. The definitional requirements of impact, probability, and significant set forth in the definitions ofW AC 197-11- 752, 782, 794 have clearly been met. They have been met due to the currently correctly defined distinction between residential and commercial arising from the final action of Jefferson County, Mr. Galt's decision. They were not addressed and could not have been addressed in DCD's SEPA compliance by adoption of the MDNS and Staff Report for SUB05-00004. This follows because the application and the environmental questionnaire required by and provided in WAC 197-11- 315 and 197-11-960 were based on the premise that the proposed Trend West use was residential. Ultimately, by final action, AHE Galt declared that the proposed Trend West use was not residential but transient and commercial. The standards applicable to residential use of the shoreland and residential environmental concerns do not meet the standards of use of the shoreland and environmental concerns of a commercial venture. Mr. Jeffery Stewart of the Washington Department of Ecology noted that he opposed the project because he believed it to be commercial and not residential as represented. See SUB 05-00004, Lot Item 41. He has attached the same letter as the DOE's continuing response to MLA06-00221. See MLA06- 00221, Log Item 91. Because DCD did not and could not have addressed the SEP A concerns associated with the applicant's and its mischaracterization of use, its SEPA compliance is fatally flawed. It is flawed with respect to MLA06-00221 which issued after ARE Galt's decision confirming the commercial, not residential nature of the applicant's proposed Trend West proposal. This distinction is required to be addressed both as to the decision to use an MDNS pursuant to WAC 197-11-350 and the mitigating conditions that the MDNS must contain. Mitigation is not resolved by defining commercial to be residential as is here attempted. In short, the proposed MDNS compliance is fatally flawed and does not support the applicant's proposal. # >~~'" page4._-,"'1 _ _ __ ___ _ _ _ _ n __ _ _ _ _ __ __ _ __ _+_.. _ _++.... e e Mr. Al Scalf, Director Department of Community Development Jefferson County October 16, 2006 Page 5 10, Because the prior MDNS -cannot support the current proposed use under t he current application and because an explanation showing why the proposed use is in fact not as a matter of legal definition, not commercial or showing why the definition should be changed because the proposed use does not have an effect that is consistent with a non water oriented commercial use is required as part of a threshold determination other than a determination of significance, the decision of DCD to rely on a prior MDNS was itself a threshold determination requiring it to accord the right of both comment and appeal of the decision itself and notice with respect thereto. ADDITIONAL SEP A DEFECTS. 11. Log for MLA06-00221 does not contain any evidence that an environmental checklist required by WAC 197-11-315 in the form provided in WAC 197-11-960 was submitted in connection with the consolidated permit application for MLA06-00221. 12. Based upon WAC 197-11-340(3)(a), it is clear to me that DCD as the lead agency should have withdrawn the MDNS for SUB05-00004 when ARE Galt determined that the proposed Trend West use was not residential as represented in the application but transient and commercial. That it did not do so and that it here attempts to use an MDNS that it was legally obligated to withdraw further shows the failure of SEP A compliance with respect to MLA06- 00221 and supports my right to appeal an obviously defective decision ofDCD to utilize a failed MDNS to comply with SEP A in connection therewith. RELIEF. 13. Since DCD has not provided notice and opportunity of appeal to the undersigned despite continued warning of its deficiency, a deficiency that has arisen and is unique to MLA06-00221, the HE should remand the application with instructions to comply with the procedural requirements applicable to threshold determinations involving notice to interested parties and opportunity to appeal. This follows because the application is a consolidated permit application and must be considered simultaneously with its SEP A compliance. Because there is a threshold issue of compliance with procedural due process applicable to the SEP A compliance for the consolidated permit application, prior to hearing the substantive consolidated permit application, the undersigned requests a ruling that SEP A compliance, a threshold determination, notice thereof and the opportunity to appeal be provided to all interested parties including the undersigned and that the substantive hearing be set over until DCD has demonstrated compliance with this requirement. The undersigned requests that this ruling be made prior to any hearing on any substantive issue relating to MLA06-00221. Please provide this letter to HE Casseaux for action prior to any hearing on MLA06-00221 now scheduled for November 3,2006. If you intend to deny my appeal, please confirm that the email of October 2, 2006 is the final action by Jefferson County on this subject and that my LUP A lOG ~M # Ii. Page [5 of_~ e . Mr. AI Scalf, Director Department of Community Development Jefferson County October 16,2006 Page 6 Petition will be timely iffiled by October 23,2006. I will need formal response to this email not later than October 18, 2006. Your assistance is appreciated. I have read this supplement to the appeal and believe it to be factually and legally well grounded and correct. .ct?~r/~ Leslie A. Powers 44 Heron Road Port Ludlow, WA 98365 -' # __~age of