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HomeMy WebLinkAboutLog215 r--- i e e 11/3/06 Comments of Lewis Hale Continued Hearing on Amendment No.1 to Port Ludlow Development Agreement The proposed amendment to the PLDA and the County Staff Report lack a certain clarity and/or precision in their drafting, It is also clear that much ofthe detail and, therefore, many of the implications of the decision by Appellate Hearing Examiner Galt (which I will refer to as the "Galt Decision") dated December 7, 2005 have, at best, not been addressed and, at worst, intentionally ignored, Therefore, for the record I want to provide the following clarification/correction on the requested Amendment and the Staff Report: The Reauested PLDA Amendment 1. Vested Rights. Recital B states that PLA believes it has vested applications that allow timeshare structures at 16 units to the acre and that this is supported by the Hearing Examiner's decision of September 2, 2005 (which I will refer to as the "First Berteig Decision"). But there is a problem. This decision was vacated and remanded by the AHE in his decision of December 7,2005. In Conclusion 1, page 16, the AHE stated: "The Conclusions which follow show that: PLA has a vested right to develop a multifamily residential development on Tract E; the extent of that right is limited by the representation made in the original 1995 Applications.. . [T]he use presently proposed by Trendwest is not a multifamily residential development; and Trendwest's proposed use cannot be established under PLA 's vested right". (Emphasis supplied). Further, even if the timeshare units were a multifamily use, the 1995 Applications do not vest the project PLA wishes to develop. In Finding 4, page 4, the AHE points out that the 1995 Applications stated that Tracts A & B (which have since been combined into Tract E) "mayor may not be developed for an additional 64 residential units." As a result, in Conclusion 11, page 18, the AHE notes: "The 1995 vested right would not protect a 120 unit multifamily proposal if what was vested was a 64 unit multifamily development proposal", 2. The Dispute. Recital C suggests that there is a dispute between three property owners "on the one hand and PLA and the County, on the other hand, whether timeshare structures and uses are permitted on Tract E." Being one of the three property owners referred to, I can state that there is no dispute between my views and the current position of the County based on the decision of the AHE. To the extent there is a dispute, it is between PLA and the County, which is confirmed by Page 1 of9 :J-(5 1 Cj " e e the action filed by PLA against the County in Superior Court appealing the Galt Decision. 3, The Second Berteig Decision. As you may know, the Galt Decision not only vacated the First Berteig Decision, but remanded the matter for a determination of what rights may have vested through the 1995 Applications. In Recital D PLA sets forth the Examiner Berteig's response to the order of remand from the AHE (which I refer to as the "second Berteig Decision"). However, what PLA fails to specify is that the order is without force and effect. Quoting from his cover letter to the Order Response to Remand, the HE states as follows: In light of the related Land Use Petition Act ("LUPA") Petition filed by PLA, LLC and Trendwest Resorts, Inc (Jefferson County Cause No. 05-2- 00441-9), which represents a challenge to all aspects of the decision rendered by Appellate Hearing Examiner (" AHE") Galt in December 2005, the attached "Order Response to Remand" is without force and effect until such time as the LUPA Petition listed above is resolved". 4. Prompt Resolution. Recital E sets forth what I suggest is a bit of an exaggeration about "significant controversy" as well as the supposed significant expense to the County. And I fail to see what this process has to do with "promoting the public health, safety and welfare." However, ifPLA's goal were really "prompt and certain resolution of the controversy" then it should have pursued its LUPA petition in Superior Court or alternatively filed for an amendment to the MPR Code and Comprehensive Plan. RCW 36.70.C.080 specifies that "within 7 days after the petition is served on the parties identified in RCW 36.70C.040(2), the petitioner shall note, according to the local rules of superior court, an initial hearing on jurisdictional and preliminary matters. This initial hearing shall be set no sooner than thirty-five days and no later than fifty days after the petition is served on the parties identified in RCW 36.70C.040(2). Further, RCW 36.70C.090 provides for expedited review ofland use cases, Specifically, RCW 36.70C.090 states "The matter must be set for hearing within 60 days of the date for submitting the local jurisdictions record, absent a showing of good cause for a different date or a stipulation ofthe parties." Obviously, PLA could have had a prompt and certain decision by early summer. But the initial hearing has not even been held. Even an amendment to the Code and Comprehensive Plan, which could have been filed during the first quarter ofthe year, would have resulted in a decision by mid- December, which is probably as soon as the BoCC will hear and decide this issue, And clearly the cost to the county of amending the Comprehensive Plan would have been minimal compared to what this process will cost when the dust finally settles, Q Page 2 of9 e e 5. The "Flexibility Obiectives." Recital F, discusses the Flexibility provisions of the PLDA contained at S 3.11. Alison Moss has addressed this provision in her October 31, 2006 letter to you. I won't reiterate it all, but want to emphasize the word "modifications," which I believe is the determinative word in this section. The code does not define "modifications" but Webster does as: "a partial or slight change in form", "product of such change," or "a slight reduction or modification" or "a qualification or limitation of meaning". What is being proposed, the substitution of 120 transient timeshare units for approximately 59 residential units allowed under the current SF/4 zoning, is not a modification, but rather a wholesale change, and is material both in terms of use and density. 6. Cooperation. Recital G, as drafted, would seem to suggest the County should do whatever PLA wants, or it would not be cooperating. Cooperation does not mean agreement, but rather consideration. More importantly, the parties are supposed to cooperate on the "approvals.., provided for in this Agreement (the PLDA)" and "implement the intent ofthis Agreement." As explained in my Point 5, this amendment does not, in my opinion, as an owner and successor in Title to Pope, implement the Agreement. Finally, while PLA recognizes this obligation in the PLDA, it seems to lack the same conviction for honoring its agreement with the PL V C (see Staff Report page 5, second paragraph) with respect to development within the MPR. 7. The Dispute. again. In Recital H, PLA states that PLA "asked" the County to "approve this Amendment in order to help resolve the pending dispute...". This suggests PLA is using this process to negotiate a settlement of the pending action filed by PLA against the County. If so, this would be an inappropriate suggestion since obviously the County has an obligation to its constituents to vigorously enforce the land use regulations, procedures and decisions (such as the Galt Decision), including the "certainty" provisions of the PLDA (see, e.g., PLDA S 1.3.13 which applies the certainty provisions to "Port Ludlow community groups", such as the PL VC as well as the "public at large" and, as Alison points out, explains that the purpose of a development agreement is to provide "certainty over time with respect to permitted densities, uses, [and] development standards. " .) 8, Private not Public Benefit. Recital I, characterizes this wholesale change in use and density as a "clarification," as does Recital L. As noted before, I believe it exceeds what is contemplated in the Flexibility Objective and actually serves to emasculate the purposes and language ofthe PLDA. And I am lost as to how it "will further the public health, safety and general welfare, and will serve the public use and interest". Trendwest is a private resort that offers private amenities only to Trendwest members or those who pay to stay at the resort like any other - RJ~~ u11Jif\ ;' '~.lL-."", Page 3 of9 'J ..... .,~ e e hotel-goer, and nothing to the public other than more traffic and congestion and expense for services for those amenities, such as the trail system, already supported by the community. This is particularly troubling to me as PLA has provided NONE ofthe amenities described in the MPR code and expected by purchasers. 9. SEPA (Non)Compliance. Recital J purports to address the environmental review of timeshare structures and uses in Tract E. Here PLA looks to rely on the SEP A review and MDNS from the First Berteig Decision that was, of course, vacated by the Galt Decision. The problem is that PLAts application presented this as a "residential use." As such the use at least (but not the density) might have been considered consistent with the MPR Code and Comp Plan. Since those environmental documents were prepared, AHE Galt has determined, and it is the final decision ofthe County, that a Trendwest Resort is a transient/commercial use. So it is not consistent with the MPR Code and Comp Plan. As the letter from DOE (Log item 91) makes clear, ifit is a commercial use, it is also not consistent with the shoreline regulations. 10, Vesting, revisited. Recital M states: "future land use and subdivision decisions relating to Tract E will be vested under the development standards described in this Agreement, rather than the Jefferson County subdivision and zoning ordinances in effect on January 19, 1995, which had been the Tract E vesting date prior to the making ofthis Amendment, and that by the making of this Amendment PLA is surrendering valuable rights in exchange for greater certainty," This is absolute nonsense. If PLA has vested rights, as AHE Galt has explained, those rights provide vesting to a use which (I) is permitted under the 1994 code and (2) is disclosed in the 1995 applications. As I have already explained, here the County has rendered a final determination that the use proposed by Trendwest "is not a multifamily residential development; and Trendwest's proposed use cannot be established under PLA's vested right". The notion of vesting is to fix the rules which apply. It has no application to a situation where the applicant wants to change those rules, which is the case here. PLA is giving up nothing. Further, as of this moment, PLA has no vested rights to Tract E until and unless there is a decision on its LUP A petition against the County in Superior Court, per the Second Berteig Decision. II. Definitions. Section 1 defines terms. Definition a defines "PLA Property," but this term is not used in the Agreement. Definition b establishes a definition for "Timeshare structures," a term not defined in Chapter 64.36 RCW, the state Timeshare Regulation. In Definitions c and d, PLA creates inconsistencies between the Amendment and the state Timeshare Regulation. What PLA has done is to use terms contained in RCW 64.36.010 but define them differently. Page 4 of9 11 Pi A ,',n;.. -0\ 'ii !l,-.\~i\~ 1I iJ !bJMI . J-/r .;c-~.;:~"'.~""._~.i...?-.=::Z-::-:~:=--:::.-::.::=" 1 e e For example, what PLA defines as "Timeshare Structure" is actually what the Timeshare Regulations defines as "unit," meaning "the real or personal property, or portion thereof, in which the timeshare exists and which is designated for separate use." What PLA defines as "Timeshare Use" is actually what the statute defines as "Timeshare," which "means a right to occupy a unit or any of several units during three or more separate time periods over a period of at least three years, including renewal options, whether or not coupled with as estate in land," There are a couple of problems here. The way it has massaged the definitions from the Timeshare Code, makes nonsense of its proposed definitions, as in Timeshare Use, where the term Unit is not defined. Further, even the definition of "Timeshare Use" suggested by PLA is flawed. It conflicts with the description PLA's own architect gave of its proposed use. See, Galt Decision, Finding 17: "The Trendwest Resort under consideration provides transient residential occupancies. The average stay of Trendwest Members at Trendwest resorts is less than 4 days. (bold my add) The members do not have any ownership interest in any particular property or unit. In general, all members may use any unit in any Trendwest resort based on a point system. Members do not have a right to return to any particular unit at any particular time. Members make reservations based on rooms available at the time a reservation is made." In other words the definition proposed by PLA is flawed as there is no "right to occupy" a specific unit, or any unit for that matter, in the Trendwest point-based system. The Timeshare Regulation contemplates actual owners of deeded timeshares with a right to occupy a specific unites) during specified periods of time. This mish mash of definitions poses significant issues for the County which will, if this amendment is adopted, have an agreement addressing timeshares that is inconsistent with state law, 12. Tract E Development Standards Generally. Section 2.a. I don't believe PLA can use "supplemental development standards" to supersede the Development Standards of the PLDA as it seems to be suggesting. Alison has explained this in detail in her letter. 13. Density. Sections 2.a.i.-ii. PLA looks to set the maximum permitted density at 16 units per acre, but then seems to be only asking for a density of 9 units per acre, The reality is that PLA has no vesting for timeshare units at any density unless the Superior Court reverses the Galt Decision. The current zoning is single family with a density of four residences per acre. The suggestion that PLA is somehow giving something up should not disguise this fact nor should it obfuscate the fact that even the 9 units per acre is more than double the density allowed under the MPR code. Page 5 of9 ~r AI{~ !~'?'~-~-'rr:\ i '._. '.'.~, ,'~' ~. '. ,I,. fj/~ . ~,. .j;--' - e e 14. MERUs. The PLDA in 91,3.5 defines transient uses as a nonresidential use. Section 3 of the requested amendment, without any reference to S1.3.5 of the PLDA, redefines them as a residential use, For purposes of the MERUs, the distinction between residential and nonresidential uses is material to the DOE. It is also a key distinction in the MPR code. The issue is adequacy of sewage processing. Single family dwelling units count as one MERD. MPR Code 9 3.80. Commercial development, on the other hand, requires a determination by DCD, using DOE data, ofthe MERU equivalents (MPR 93.803.6.). The Trendwest resort, as a transient use, would appear to require such a determination. To my knowledge, that determination has not been made, However, given the significant portion ofthe Port Ludlow community that is over 55 (many of whom are retired), it is reasonable to assume the occupancy ofthe proposed Trendwest units will be at least twice the average occupancy of the "residential dwelling units" in the MPR. The Staff Reoort 1. Date of Application. o. 1. The paragraph states "This application is vested under the ordinances in effect under the Port Ludlow Development Agreement." As Alison explains, that means it is vested to the MPR-SF zone. What the County seems to miss is that based on the Galt Decision, this proposed use is not permitted under the MPR zoning contained in the PLDA (Galt Decision, Conclusion 18). 2. Proposal. p. 1. This paragraph indicates the "proposal would develop a 120 unit time share residential project..." Given the Galt Decision, how can the County characterize this to be a residential project? AHE Galt clearly ruled it is not residential. This is supported by the UDC which defines a "residential development" as being comprised of "dwelling units for nontransient occupancy". 3. Background Information. Pages 2 and 3 discuss "Prior Related Projects." On page 3, the first paragraph, the County notes that "The Appellate Hearing Examiner found the Trendwest proposal to be transient accommodations not allowed under either the vested 1995 G-l multi-family zoning nor under the current single family residential zoning." But then two sentences later, the County states "Although the Appellate Hearing Examiner stated that transient accommodations are not allowed in single family zones, under the current MPR code, they are not prohibited in areas zoned for single family residences." Two points need to be made. First, transient accommodations of this sort are prohibited. ICC 17.05.090 prohibits any structure or land use that is not included among the uses listed as permitted in the zoning district. The MPR-SF zone lists the following uses as permitted outright or as conditional uses: singe-family attached and detached residences (single family attached expressly excludes stacked flats); home based - rrJl'~ li~tlrufl 'J-./:J ,; . .""'~~~_'~~;~-=cc= Page 6 of9 e e businesses; accessory uses; trails and open space; fire stations and electrical substations. Second, as Staff concedes the AHE rendered a final determination that the proposed Trendwest resort is transient accommodations and, therefore, not permitted in Tract E under the current single family residential zoning. 4, Review Criteria, P. 6. As Alison discusses, the County for some reason brings up the failed arguments of PLA as part of the Review Criteria. AHE Galt has ruled that the use is commercial. In making his decision he reviewed and addressed the issue of payment or compensation and the structure of payments under the Trendwest points-based system. See, Galt Decision, Finding 16, pp. 8-11. Galt further found that a direct outlay of money was not a controlling factor. With regard to the discussion of "ownership interest," AHE Galt found: "No matter what the legal nuances of a Trendwest member's ownership are, the reality is that Trendwest members pay compensation (points and/or cash) to use units within the Trendwest system for vacation stays." Galt Decision, Finding 18. In other words, AHE Galt found no material difference between a Trendwest owner "paying" with points he/she purchased and an individual paying directly to rent a hotel room. It is a different system of payment, but the nature ofthe use is identical. 5. GMA, p. 8. Staff concludes that a residential-time share multi-family project is consistent with the nature of the MPR as a destination resort and complies with the GMA. This is nonsense and nothing could be farther from the truth. First, the County here again fails to recognize that the Galt Decision - a final decision of the County - determined that a timeshare is not an allowed use on Tract E. Second, the proposed project would take Port Ludlow even further from compliance with the GMA. I believe one of the reasons PLA has chosen not to undertake an amendment to the Comprehensive Plan is that it knows, that if appealed to the Growth Management Hearings Board, the amendment would be found out of compliance. Prior to being designated an MPR, Port Ludlow was an IUGA. This designation was challenged and eliminated in the late 1990s, leaving Port Ludlow with rural zoning of one residence per five acres, effectively putting Pope out of the development business. Pope then worked with the state to implement RCW 36.70A.362 as the companion to the existing section, RCW 36.70A.360. Shortly thereafter Pope sold the property to PLA. One can presume that section .362 was added as a companion to section .360 to allow existing resort areas, that might not initially meet the standards of section .360, to be designated as an MPR with the obligation going forward to at least move toward the MPR concept outlined in section .360, Notwithstanding the comments in the County staff report, Pope (now PLA), since the establishment of Port Ludlow Page 7 of9 ~../,~""-,..,,,c 7",; ~ e e MPR, has done NOTHING to further Port Ludlow as an MPR as defined in the GMA. In fact, PLA's actions have moved the property further away from the concept of an MPR. a. At the time of purchase Pope had in place an arrangement with many of the condominium owners in the Admiralties to rent out their rooms through the Inn to support Port Ludlow as a destination resort. The units were built by Pope specifically for this purpose with separate exterior entrances to each bedroom associated with the condominiums. PLA has since terminated this arrangement with the majority ofthe owners (I believe it still has seven units in the rental pool), b. At the time of purchase from Pope there was a convention center for use by larger groups. PLA has since rented that facility out to a church, a use not permitted in the MPR code. c. The MPR code, in section 3.901 contains a list of proposed amenities. While it is clear that PLA is not obligated to build to the size specified, to date they have built or provided NONE of these amenities, PLA has merely continued to build urban density residential housing but have added no amenities that would further Port Ludlow as a destination resort, d. There is pending before HE Berteig a proposal for the build out of the resort core. Based on this plan, which will complete the resort core, there are no additional transient accommodations contemplated, even though the resort core is zoned for transient accommodations. This build out will be all residential uses. PLA is proposing to do the marina expansion identified in the MPR, but little else. The existing Harbormaster Restaurant is to be tom down and replaced by smaller restaurant near the water, and residential townhomes built on the current Harbormaster site, e. What PLA is proposing with Trendwest is a PRIV ATE Resort with PRIV ATE amenities in a single family zone in direct conflict with the concept of a "fully integrated development". f. To fully appreciate the impact on the community, it is important to understand the current community organization as respects amenities. Currently (and at the time ofthe establishment ofthe MPR) the primary source of amenities are the LMC (north bay area) and the SBCA (south bay area) associations, These are covenanted areas where dues go to support the community amenities such as swimming pools, tennis courts, clubhouses and open spaces. Historically homes built in Port Ludlow were part of one or the other of these two associations. If Trendwest is built as proposed, the 120 residential MERUs allocated to a private resort will be lost to the community. For the SBCA (where Trendwest is being located) this amounts to approximately $120,000 per year in association dues that is lost to the community. So at the same time PLA is not building any amenities to support the MPR, it is also proposing to effectively reduce the funding base for community funded amenities. Page 80f9 "'1T ~.\I.'I' d u ~.::1, \"II ~l/i:-:c=,~-== i (~)~~ . A e e 6, Flexibility Standards, p. 9. Alison has addressed this at length, so I will not repeat it, but simply ask you to look carefully at whether this application can, with a straight face, be called a clarification or modification. Again, I direct your attention to PLDA 9 1.3.13 which states that the purpose ofa development agreement is to provide "certainty over time with respect to permitted densities, uses, [and] development standards." As an owner in Port Ludlow, I relied on those representations. Page 9 of9 f1 rv(~ c1' :r~," ii\ /'\1 !,\,;,,~-j'tl'T"j!""'\i" ,'-\,,;;:'--' '::..-, \,.i ~ .~- v' "J-'I . cr - ....' ....r>;