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SUPERIOR COURT OF W ASBINGTON FOR JEFFERSON'COUNTY
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LESLIE A. POWERS, an individual,
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) NO.
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) DECLARATION AND STATEMENT
) IN SUPPORT OF STAY
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Respondents. )
JEFFERSON COUNTY, Respondent
PORT LUDLOW ASSOCIATES, LLC, Respondent
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Plaintiff,
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vs.
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JEFFERSON COUNTY, a political
subdivision of the State of Washington; and,
PORT LUDLOW ASSOCIATES, LLC, a
Washington limited liability company,
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TO:
TO:
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I, Leslie A. Powers, being of full age and sound mind, do hereby declare as follows:
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1.
I am competent to make this Declaration and am personally aware of the facts
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stated herein.
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2.
I am a resident of Port Ludlow, Washington.
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3.
In support of its request for stay of the pending review of the consolidated land
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use application for Ludlow Cove II filed under MLA06-00221 (the "2006 Application"),
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Petitioner states as follows:
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a.
Unless the administrative and legislative hearings and/or approvals of
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the 2006 Application are stayed, Petitioner will be denied his due process right to appeal what
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is obviously a threshold detennination by Jefferson County Department of Conununity
DECLARATION AND STATEMENT
IN SUPPORT OF STAY-l
POWERS & THE.RRlEN, P.S. (LOa ITEM
3502 TlETON DRIVE ~ 7 /'
Y AK1MA, WASHlNGTON 98~
509-453-8906 Page L
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Development ("DCD") to forego independent SEP A review of the Trend West project even
2 though the basis for its threshold determination on such project under the 2005 Application
3 was based on the erroneous view that the Trend West use was residential rather than
4 commercial. AppellateHearing Examiner Galt's decision, the final action by Jefferson
5 County on the 2005 Application vacated the approval of the 2005 Application on the basis
6 that it was erroneously characterized as residential and not commercial. By relying on its
7 threshold determination supporting a modified determination of nonsignificance on the Trend
8 West use under the 2005 Application, DCD continues to rely upon an erroneous standard in
9 making a threshold determination on the Trend West use under the 2006 Application, that is
10 that the Trend West use is residential and not commercial notwithstanding ARE Galt's
11 decision. While this may be the result that the applicant wishes through the proposed
12 amendment of the Development Agreement between Jefferson County and the applicant, the
13 current final determination of Jefferson County is that the Trend West use is commercial and
14 not permitted at Ludlow Cove II. Unless DCD's decision to treat the MDNS from the 2005
15 Application as applicable to the 2006 Application is treated as a threshold determination and
16 unless Petitioner is given notice and right of administrative appeal, failure to grant the stay or
17 to prohibit further proceedings on the 2006 Application will deprive Petitioner of his due
18 process rights and his rights under the Jefferson County Unified Development Code to receive
19 notice and administratively to appeal threshold decisions respecting landuse applications.
20 DCD has refused to permit Petitioner to appeal; Petitioner's rights have been abridged and
21 may be pennanentIy abridged by the continuation of substantive proceedings on the 2006
22 Application. Without administrative appeal rights, Petitioner is left without remedy and
23 method to perfect appeal to the Court.
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b.
Because the effect of a decision by this Court in favor of Petitioner will
25 vacate and vitiate aU land use decisions made by the Hearing Examiner and/or Jefferson
DECLARATION AND STATEMENT
IN SUPPORT OF STAY - 2
POWERS & THERRIEN, P.S.
3502 TlETON DRIVE
YAKIMA, WASHINGTON 989tpp?TE
509453-8906
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1 County Board of County Commissioners, staying the review and/or approval of the 2006
2 Application will assure that such decisions will be rendered with local administrative and
3 legislative fmality for purposes of further judicial review. Since the stay is rendered only to
4 permit compliance with the procedural requirements of SEP A for the publication of threshold
5 decisions respecting the 2006 Application and for the administrative appeal thereof, the stay
6 will not affect the substantive decisions themselves except to the extent that Petitioner's
7 administrative appeal of such threshold determination is upheld by the Hearing Examiner.
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c.
Petitioner has repeatedly asked DCD to issue proper notice of its
9 threshold determination to use the MDNS for the 2005 Application to comply with the SEP A
10 requirements of the 2006Application and right administratively to appeal same and has
11 repeatedly brought to the attention ofDCD the legal problems that arise as a result of a failure
12 to provide notice and right of appeal. DCD has refused or failed to respond to Petitioner's
13 request for notice and appeal and has insisted that Petitioner has no right of appeal of its
14 threshold determination for the 2006 Application because Petitioner did not appeal the MDNS
15 when it was issued in July 2005. In other words, DCD insists that a project that has been
16 rejected and vacated by final action of Jefferson County based on an erroneous
17 characterization of use, a characterization that equally and erroneously supported the MDNS,
18 can in some way adequately address the proposal of the same use under the 2006 Application
19 without any reference or attention to mitigating the results of the difference between
20 characterizing the use as residential and commercial. The use affects the shoreland. It affects
21 specifically aspects of the Shoreline Management Act. This matter has been raised with
22 DCD. DCD has not responded.
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d.
To protect Petitioner's due process rights and to avoid further delay
24 incident to an order vacating any decisions made by the Hearing Examiner and BoCC based
25 upon the failure ofDCD to comply with SEPA notice and appeal requirements, Petitioner
DECLARATION AND STATEMENT
IN SUPPORT OF STAY - 3
POWERS & THERRIEN, P.S.
3502 TIETON DRIVE 0 E
YAKIMA. WASHINGTON 9890:I.! G-IT
509-453-890~ (
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requests that the hearings before the Hearing Examiner and the BoCC be stayed and
2 prohibited until the Court has addressed petitioner's due process and SEP A rights to notice of
3 nCD's threshold determination on the 2006 Application and right administratively to appeal
4 same.
5 I declare under penalty of perjury pursuant to the laws of the State of Washington that
6 the statements listed in this Declaration and Statement in Support of Stay are true and correct.
7 Dated this 20th day of October, 2006 at Yakima, Washington.
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Leslie A. Powers
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DECLARATION AND STATEMENT
IN SUPPORT OF STAY - 4
POWERS & THERRIEN, P.S. LO~ !TE M
3502 TIETON DRI1E ( () "/
YAKIMA. WASHINGTON "98902'-
509-453-8906 :'lags Y 0
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SUPERIOR COURT OF W ASHlNGTON FOR J]~FFERSON COUNTY
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LESLIE A. POWERS, an individual,
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) NO. 06200339-9
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) MOTION FOR STAY
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Respondents. )
CLERK of the above-entitled Court, and
JEFFERSON COUNTY, Respondent
PORT LUDLOW ASSOCIATES, LLC, Respondent
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Plaintiff,
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vs.
JEFFERSON COUNTY, a political
subdivision of the State of Washington; and,
12 PORT LUDLOW ASSOCIATES, LLC, a
Washington limited liability company,
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TO:
TO:
TO:
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COME NOW the Plaintiff and move the Court for a stay of all state court proceedings,
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including discovery and depositions, until a decision is rendered by the Superior Court on the
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Plaintiffs' Motion for Stay, a hearing on which is currently scheduled for 1 :00 p.m. on
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November 17th, 2006 before the Honorable Anna Laurie.
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This motion is based upon the records and files herein lmd the Declaration and
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Statement in Support of Stay filed with the court on October 23, 2006.
Dated this 26lh day of October, 2006. / cr _,,1/" c ....___
~~~/~,
Leslie A. Powers, WSBA #6103,
Pro Se
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MOTION FOR STAY -1
LOG'TECM-
po~:~~~,P'S'a? i
YAKlMA, WASHI~!ON 98902, ~-~. _._c
509-453-l'%Ige ; _ of
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_n_________ ----e
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Powers & Therrien (Diane Sires)
From:
To:
Cc:
. "Powers & Therrien" <powers_therrien@yvn.com>
"AI Scalf" <ascalf@co.jefferson.wa.us>
"Powers & Therrien" <POWERS_THERRIEN@yvn.com>; "Elizabeth Van Zonneveld"
<evz@cablespeed.com>; <LewisHale@aol.com>; "Rick Rozzell" <rr2dp@aol.com>
Friday, October 27,200610:28 AM
Re: LUPA Petition
Sent:
Subject:
AI:
This still doesn't completely address my question. Willi be permitted to appeal (a) the decision of OCD to utilize
the MDNS from SUB05-00004 to comply with the SEPA requirements of MLA06-o0221; (b) the decision of DCD
that my right of appeal of the SEP A compliance for MLA06-o0221 was cut off when I did not appeal the MONS
issued under SUB05-o0004? If you can confirm that I have.the right to appeal DCO's decisions under (a) and/or
(b), identifying which, I will be able to dismis-s the LUPA petition. The issue that DCO raised when it denied my
administrative appeal rights of its decision to use the MONS for SUB05-00004 to comply with the SEPA
requirements for MLA06-o0221 Is that I cannot tell when the final decision of the County has been made as to my
appeal of SEPA compliance for MLA 06-00221 and or the denial of my appeal rights respecting same. I realize
that I can file a LUPA petition on the substantive permits, and, as far as that goes, a SHB petition on the SSOP
component thereof. The appeal of the consolidated permits is not, however, the issue. Rather it is the SEPA
compliance with respect to same and my right of administrative appeal of that SEPA compliance. As I indicated
earlier, the simple solution would have been to have sent me a notice of a threshold determination of OCO's
decision to go with the MONS for 05-00004 and permit me to perfect an appeal to HE Casseaux thereon.
Alternatively, my right to appeal OCD's denial of my appeal right to HE Casseaux could have been recognized.
OCO has done neither. Your response to which I reply Is Inapposite. Please respond to my actual question.
I appreciate your assistance.
Les
-- Original Message --
From: AI Scalf
To: Powers & Therrien
Cc: Elizabeth Van Zonneveld ; LewisHale@aol.com ; Rick Rozzell
Sent: Friday, October 27,20069:01 AM
Subject: RE: LUPA Petition
Les
From the land use procedures ordinance:
A application involving two or more permits, at the request of a applicant can be consolidated into a single
process. Use the highest procedure.
So everything Is a type C. The request to amend the development agreement and the shoreline permit
application.
TYPE C
BOCC decision based upon a recommendation from the Hearing Examiner who conducts a open record public
hearing.
Effect of decision: "The decision of the Board of County Commissioners shall be the final decision of the
County on the application unless, within twenty-one (21) calendar days after issuance of a decision, an appeal
is filed In Superior Court ill accordance with Chapter 36.70C RCW."
So I suggest you wait to see what the BOCC does. The aocc will conduct their own public hearing on the
TYPE C. They will approve or deny. Once the BOCC decides oeo will issue the BOCC deciSiol~~t'~M
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day appeal notice to Superior Court. Any party of record can appeal under LUPA: the development agreement
decision, the shoreline permit decision, the ellvironmental review, any procedural concern, etc., etc.
AI
-----Original Message-----
From: POwers & Therrien [mailto:powers_therrien@yvn.com]
Sent: Wednesday, October 25, 2006 4:55 PM
To: AI Scalf
Cc: Powers & Therrieni Elizabeth Van Zonneveldi LewisHale@aol.comi Rick Rozzell
SUbject: Re: LUPA Petition
AI:
If you can confirm this, I will of course drop the LUPA claims. I am not interested In fighting issues that
are not currently before me and remain open 011 appeal when the final decision Is made as to the
substantive proposal and the SSOP. I would appreciate a response at your earliest convenience.
Thanks for the update.
Les
-- Original Message --
From: AI Scalf
To: Powers & Therrien
Sent: Wednesday, October 25,20064:41 PM
Subject: RE: LUPA Petition
Les
Last week, I sent your review/request to Oavid Alvarez for legal consultation. He hasn't commented
yet. You filed the LUPA, I understand ybu are protecting your appeal rights. However, I tend to think
the appeal period is still in front of ybU. After the Hearing Examiner makes a recommendation, the
BOCC will make a decision to approve or deny, then a appeal period would open up for any and all
aspects of the proposal. This appeal right is direct to Superior Court.
your thoughts,
AI
-----Original Message-----
From: Powers & Therrien [mallto:powers_therrlen@yvn.com]
Sent: Monday, October 23,200612:48 PM
To: AI Scalf
Cc: Powers & Therrien
SUbject: LUPA Petition
AI:
Because no one responded to provide me with information on my right to appeal OCO's decision
of October 2, 2006, that I lost my SEPA appeal rights by not appealing the 2005 MONS in
August, 2005 and I was at the 21st day from that decision, I filed a protective LUPA Petition. I
would prefer to withdraw the filing If your office can assure me that I will be given the right
administratively to appeal either the substantive decision to use the 2005 MONS as compliance
with SEPA for MLA 06-00221 or the procedural decision that my failure to file an administrative
appeal on the MONS in August 2005 in respect of SUB05-00004 substantively terminated my
SEPA rights under MLA06-00221. I asked you to respond by October 18th. You said that you
would respond last week. I received no response and simply ran out of time. I again ask that
you provide me the opportunity for an administrative appeal and an official notice of what I
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consider a threshold determination to rely on the 2005 MONS without further mitigation to reflect
AHE Galt's decision respecting the type of use that is associated with a Trend West project.
Les Powers
Powers & Therrien, P .5.
3502 Tieton Drive
Yakima, WA 98902
Phone: 509-453-8906
Fax: 509-453-0745
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lOG
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