Loading...
HomeMy WebLinkAboutLog188 e e November 2, 2006 Sent Via Email c/o Al Scalf STEPHEN CAUSSEAUX McCarthy Causseaux & Hurdelbrink Inc. P.S. 902 S. 10th Street Tacoma, W A 98405-4537 Pb2S3-212_2206 RE: Powers vs. Jefferson County and Port Ludlow Associates LLC Jefferson County Cause No. 06-200339-9 Dear Mr. Casseaux: Mr. De Sa e Silva chooses to respond beyond the procedural issue raised by the undersigned in his LUPA Petition. His analysis apparently is that MLA06-00221 describes the same substantive project as SUB05-00004 and, that accordingly, DCD, without threshold determination is entitled to adopt the MDNS descriptive ofSUB05-00004 under the authority ofW AC 197-11-600. Mr. De Sa e Silva's rendition of the facts shows that his factual proposition is in error. Moreover, WAC 197-11-600 does not support the notion that a threshold determination is not involved in instances such as this where there may appear to be a common substantive proposal when the MDNS was based upon an erroneous interpretation of fact and law as determined by AHE Galt in his decision of December 7,2005. AHE Galt confirmed that DCD based the issuance of its MDNS as well as its approval of the consolidated permit application for SUB05-00004 on the erroneous conclusion that the proposed Trend West use was residentia1. AHE Galt determined that it is transient, and accordingly commercial. That conclusion should have vitiated the MDNS with the consolidated permit application. Such a result is consistent with WAC 197-11- 340(3)(a)(ii) requiring a DNS to be withdrawn for new information or for a misrepresentation. Here, it is clear there was a misrepresentation. The application referred to the use as residential "condominium timeshare". At the same time it contained a letter from the Trend West architect asking Jefferson County to classify it as a hotel for certain construction requirements. See SUB05-00004, Log No.4. Based thereon, the MDNS should have been withdrawn when the representation of residential use was determined to be erroneous by AHE Galt. DCD issued a notice on June 23, 2006 to "Reviewers" including undersigned. Therein, it proposed to adopt the MDNS from SUB05-00004 to comply with SEP A requirements for MLA06-00221 under the theory that the substantive project was the same under each application. The undersigned was a "Reviewer". The notice recites that "the Department expects to adopt an existing environmental document, Mitigated Determination of Nonsignificance, and lead agency status prepared July 26,2005, and issue a DNS for this proposa1." The document invites comment and questions and offers an extension of time to respond upon request. The document 1'F7 I r It It Stephen Causseaux McCarthy Causseaux & Hurdelbrink Inc. P.S. November 2, 2006 Page 2 further recites that a site plan, sewer plan, storm water plan, landscaping plan and elevation plan are attached to the application. See MLA06-00221, Log No. 48. The undersigned responded on July 24, 2006, under MLA06-00221, Log No. 99. DCD has made no announcement of an actual adoption of the MDNS from SUB05-00004 to comply with SEPA requirements for MLA06- 00221. There was no m.eans by which the undersigned could determine the effect of his comments or any other comments on DCD' s decision or what his rights of appeal thereof might be. A review of the notice requirement to adopt a prior SEP A compliance document under WAC 197 -11-630 and 197-11-965 shows that the associated notice does not meet the requirements of either because it does not inform the public of the actual adoption of the prior compliance document. Rather, the notice of June 23, 2006 was a notice requesting response as to whether DCD should comply with SEPA by adopting such prior compliance. For example, to adopt a prior document, the document that is adopted must be published with the notice and sent to those identified on the distribution list. See WAC 197-11-630(2). That was not done. Moreover, the notice does not disclose the effect of AHE Galt's decision that reclassified the proposed use as commercial, not residential, the basis for the original MDNS. This disclosure is required by WAC 197 -11-630( 5). It is a little hard to understand how this does not have the effect of a pending appeal, particularly where the applicant has a pending LUP A petition challenging AHE Galt's decision. The consolidated permit application while containing various site plans and the like, as Mr. De Sa e Silva admits in his letter, does not contain any binding site plans or other plans tying the Trend West project, as designed to the property. Rather, it contains a proposed amendment to the Development Agreement asking for three things, that Ludlow Cove II be permitted for single family or multifamily use, that the use be limited to nine dwelling units to the acre and that multifamily use as it applies to Ludlow Cove II permit timeshares as defined in the proposed amendment. It also contains a request for a shoreline substantial development permit and, independently, a JARPA filing. Although the box in the application is marked to include a building permit, no permit application accompanies the consolidated application. DCD has confirmed that there is no application for a building permit. When the undersigned asked DCD how a specific project was tied to the site, a requirement for an SSDP, the undersigned was told that the project would be tied to the site in a subsequent application for a building permit. Unfortunately, a building permit is a Class II application and does not require notice to interested parties beyond the applicant. Thus, a neat trick will have occurred if this proposal is adopted. The applicant will be free to build any single or multifamily residential units on the property that it chooses with a density not to exceed nine units to the acre and those units may include timeshares. What the applicant may ultimately build on the site is left entirely open. Yet, the applicant asks the SSDP to issue against such an open application. It is the case as Ms. Nightingale recites in the notice of June 23d that the application includes various site and other plans; it is not the case that they are in any way binding on the applicant. Obviously, Ms. Nightingale is aware of the difference; she carefully describes the plans without reference to "binding". It is merely misleading to a reader not focusing on the distinction, particularly in light of the absence of the relevant documents from SUB05-00004 which would highlight the issue. e e Stephen Causseaux McCarthy Causseaux & Hurdelbrink Inc. P.S. November 2, 2006 Page 3 In response to Mr. De Sa e Silva and Mr. Alvarez, what we have here is the same kind of gross example of ignoring procedure and due process that characterized the SSDP approval in SUB05- 00004. There, DCD sent the file to the Washington Department of Ecology ("DOE") for approval and issuance based upon HE Berteig's approval of the consolidated permit application for SUB05-00004. DCD failed to notify the undersigned or provide administrative appeal rights as required by LUPO. The undersigned with Mr. Rozzell appealed to the Shoreline Hearing Board. The SHB granted the undersigned's motion to have the SSDP vacated and the entire matter remanded to Jefferson County for failure to follow its own procedures and provide procedural due process to the undersigned and Mr. Rozzell. Here, DCD has approved a threshold determination to comply with SEPA requirements for MLA 06-00221 by adopting MDNS for SUB05-00004 notwithstanding the fact that the basis upon which it was approved was rejected by Jefferson County through the opinion of AHE Galt on December 7,2005. The MDNS must be considered vitiated with the vacation of the substantive permits to which it relates by operation of WAC 197-11-340(3)(a)(ii) and (iii). To adopt the MDNS, DCD must at minimum explain in its notice that the underlying substantive permits have been rejected on a basis that conflicts with the Staff Report for the MDNS. This it did not do. Rather, it solicited comment on its proposal to adopt such MDNS and then failed to notify the undersigned, and, apparently, anyone else that notwithstanding comments in conflict of that proposition it in fact adopted the MDNS. That adoption, particularly in consideration of the requirement that the MDNS be vitiated with its substantive permits because it relied upon a premis rejected by Jefferson County through the decision of AHE Galt, must be summarily rejected. DCD owes the undersigned notice of its final decision and the right to appeal same. This is a function of local ordinance and the undersigned's constitutional legal rights. The undersigned is an interested party. DCD recognized as much by requesting the undersigned's review of its proposed decision. Having invited review, it owed the undersigned the right to appeal its final decision administratively to the hearing examiner. This it refused to do on the basis that the undersigned failed to perfect an administrative appeal of the MDNS under SUB05-00004. However, we are dealing with MLA 06-00221, a consolidated application that does not even tie a project to the subject property. Surely, the undersigned's appeal rights of such decision cannot have been vitiated more than eleven (11) months before the deadline for comment and seven (7) months after AHE Galt ruled the original application violative of zoning law. Nothing in WAC 197 -11-600 provides a basis to conclude that a persons due process rights may be vitiated against action under a prior permit application as Jefferson County and the applicant advocate. The purpose of the protection is to preserve constitutional rights; the applicant and Jefferson County ought not be permitted to vitiate those rights on a procedural basis. The issues argued in this letter have been pled to the Superior Court in the undersigned's LUPA petition. Without regard to anyone's view of how matters should or might be resolved by the Court, the fact remains that it is for the Court, not Jefferson County or PLA to resolve the issue. Mr. De Sa e Silva's response confirms the gravaman of the problem. Jefferson County again ignored its procedural rules that protect the undersigned's due process rights and again has presented an application for approval that is fatally flawed on a procedural basis. DCD was warned by the undersigned to grant the undersigned appeal rights on the procedural issue of its right to administrative appeal. DCD misrepresented the rights it "thought" or "believed".Jl:le },x >~' ~ )i~ e e Stephen Causseaux McCarthy Causseaux & Hurdelbrink Inc. P.S. November 2, 2006 Page 4 undersigned possessed to obtain dismiss~l of the undersigned's responsive LUPA petition. The vacuous nature of DCD' s response is confirmed by the response of Mr. Alvarez and Mr. De Sa e Silva herein. The undersigned in their view has no persisting appeal rights. It cannot appeal the decision after the BoCC reacts thereto. The statements ofMr. Scalf to the contrary or apparently to the contrary are merely misleading statements designed to eliminate an impediment to "get to yes". I ask the hearing examiner to defer decision on Ludlow Cove II until the Court hears the undersigned's motion for stay. Notwithstanding statements to the contrary backed by misrepresentations of law or fact, the undersigned has a valid position under LUP A created by DCD and its failure, yet again, to follow procedures designed to protect the undersigned and other members of the community against the rent seeking activities of the developer and its allies in DCD. Your review of this letter is appreciated. LMt'e If. Po<<ler-~ Leslie A. Powers 44 Heron Road Port Ludlow, WA 98365 11 f.Ot/..................................,. ,....... ,.~ ""~"...'..." ';.,,.il....... ..-..-.,.".- .'