HomeMy WebLinkAboutGustavsen Road, Road Vacation, Recommendation of Approval to Board of County Commissioners, February 2023
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – A PORTION OF GUSTAVSEN
ROAD – COUNTY ROAD NO. C327809
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GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
Before Hearing Examiner
Gary N. McLean
BEFORE THE HEARING EXAMINER
FOR JEFFERSON COUNTY
In the Matter of the Petition to Vacate a
portion of Gustavsen Road, identified as
County Road No. 327809, submitted by
ALVORD INVESTMENTS, LLC,
(NATHANIEL GERLICH, GOVERNOR)
Petitioner/Property Owner
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FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF
APPROVAL TO THE BOARD OF
COUNTY COMMISSIONERS
I. SUMMARY OF RECOMMENDATION.
The petition should be granted, vacating a portion of Gustavsen Road.
II. JURISDICTION.
This matter came before the Hearing Examiner who is responsible for conducting a
public hearing on all petitions for road vacations; reviewing such petitions, the written staff
report, and applicable criteria found in JCC 12.10.110; and receiving public testimony in
support of or opposing the proposed road vacation. Following the public hearing, the
Examiner is tasked with providing a written recommendation to the Board of County
Commissioners to grant or deny the petition, with any conditions of approval. (See JCC
12.10.080).
III. RECORD.
Exhibits entered into evidence as part of the record, and an audio recording of
testimony provided at the public hearing, are maintained by the Jefferson County Department
of Community Development, in accord with applicable law. In this Recommendation,
materials included as part of the Record are numbered and identified as follows:
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – A PORTION OF GUSTAVSEN
ROAD – COUNTY ROAD NO. C327809
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GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
Below is a list of individuals called to present testimony under oath at the duly noticed
public hearing for this matter, held using the Zoom online meeting platform coordinated by
County staff on January 17, 2023:
1. Colette Kostelec, Engineer III/Right-of-Way Representative, for the County’s Department of
Public Works, prepared the Staff Report issued for this petition, summarized her
recommendation of approval with limited conditions, noted that the County received no
written comments before the hearing in opposition to the requested vacation; and
2. Nathanial Gerlich, appeared for the petitioner, one of the “Governors” listed on the Secretary
State’s online portal for the Alvord Investments, LLC ownership entity, did not object to
Staff’s analysis or recommenced conditions, summarized reasons for seeking the road
vacation.
No one appeared during the public hearing to submit written comments or verbal
testimony opposing or questioning this road vacation. The Examiner has had a full and fair
opportunity to consider all evidence submitted as part of the record; has visited the road
vacation site and surrounding area; has reviewed and researched relevant codes, caselaw, and
ordinances; and is fully advised. Accordingly, this Recommendation is now in order.
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – A PORTION OF GUSTAVSEN
ROAD – COUNTY ROAD NO. C327809
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GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
IV. FINDINGS OF FACT.
1. Any statements of fact or findings set forth in previous or subsequent portions of this
Recommendation that are deemed to be findings of fact are hereby adopted and incorporated
herein as such. Captions are used for some groups of findings but should not be construed to
modify the language of any finding, as they are only provided to make it easier for readers to
identify some of the key topics addressed in this Recommendation.
2. The segment of Gustavsen Road at issue in this road vacation petition is located on
the southern end of the Bolton Peninsula, southeast of Quilcene, Washington, and is shown
in red in the following screen shot taken from Exhibit A, attached to the County Engineer’s
Report:
3. Alvord Investments, LLC, as the current owner of the parcel of land located
immediately south of, and abutting, a portion of Gustavsen Road right-of-way, shown above,
and identified as tax parcel no. 601-061-009, is the petitioner in this matter. (Staff Report,
page 1: Ex. B, Petition).
4. The petitioner asks that the County vacate the westernmost 100-feet of the 40-foot
wide right-of-way known as Gustavsen Road. (Staff Report, page 1; Ex. B, petition).
5. Fisherman’s Point Homeowners Association is the current owner of the parcel of land
located immediately north of, and abutting, the portion of Gustavsen Road right-of-way that
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – A PORTION OF GUSTAVSEN
ROAD – COUNTY ROAD NO. C327809
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GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
is the subject of this petition, identified as tax parcel no. 951-700-100. (Staff Report, page
1).
6. The property owners of the two abutting tax parcels (i.e. the “Principal Petitioner”,
Alvord Investments, and the Fisherman’s Point HOA) have both signed a Petition to Vacate
the segment of Gustavsen Road that is at issue in this matter. (Staff Report, page 1; Ex. C,
attached to County Engineer’s Report).
7. As provided in WAC 197-11-800(2)(i), road vacation matters are exempt from SEPA
review.
8. Staff confirmed that all public notices were provided in accord with applicable law,
and that no one submitted any comments or questions that would serve as a basis to deny the
requested petition. (Staff Report; Exhibits 2, 3, 4, and 5, related to notice and comments;
Testimony of Ms. Kostelec).
9. As noted above, no one submitted any written comments or testimony during the
public hearing process opposing the pending road vacation petition.
How this segment of right-of-way was established, and why it matters.
10. The County Engineer’s Report explains that the 40-foot wide segment of Gustavsen
Road right-of-way at issue in this petition was originally reserved by Jefferson County when
it deeded the southeast quarter of the southeast quarter of Section 31, Township 27 North,
Range 1 West in July 1946, and was formally established as a county road by Resolution 30-
74 on June 24, 1974. This right of way segment is not subject to what is sometimes called
Washington’s “non-user statute”, found at RCW 36.87.090, so it has never been vacated and
continues to be County right-of-way until or unless the County chooses to grant any petition
to do so.
11. Tax parcel 601-061-009 (the “Alvord parcel”) is entirely within the northeast quarter
of Section 6, T26N, R1W. Although parcels abutting both sides of Gustavsen Road currently
benefit from that right-of-way, in the event that right-of-way is extinguished through a road
vacation, the entire right-of-way would revert to the successor owner of the property to the
north (within Section 31, T27N, R1W), from whom the right-of-way was reserved in 1946.
In other words, upon vacation, none of the Gustavsen Road right-of-way would attach to the
Alvord parcel by operation of law. Instead, it would attach to the abutting Fisherman’s Point
HOA property in the southeast quarter of the southeast quarter of Section 31. (Engineer’s
Report, page 2).
12. According to the Petition, the purpose of the requested vacation is to increase the size
of the Alvord parcel to make it buildable. The County has received a letter from the
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – A PORTION OF GUSTAVSEN
ROAD – COUNTY ROAD NO. C327809
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GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
Fisherman’s Point HOA, confirming that, upon approval of the current vacation request, it
will quit claim its interest in that right-of-way to Alvord Investments (see Exhibit C). With
such quit claim deed, the Principal Petitioner will be the sole owner of the vacated right of
way. (County Engineer’s Report, page 2).
13. The County Engineer explains that the subject right-of-way has not been improved to
public road standards and has never been opened as a public road or been maintained by
Jefferson County. The county-maintained portion of Gustavsen Road, which is a 14-foot wide
gravel road, ends at milepost 0.4, just short of the Alvord parcel (see photos in Exhibit D).
The proposed section of right-of-way to be vacated is the westernmost section of Gustavsen
Road right-of-way, beyond the County-maintained portion. The subject right-of-way meets
the definition (in JCC 12.10.020) of “Class A” road, namely a road “established, dedicated
to, deeded to, or otherwise established by the county for which no public expenditures have
been made in the acquisition, improvement, or maintenance of same except those roads
platted prior to March 12, 1904, which remained unopened for public use for a period of five
years after authority was granted for opening them.” (County Engineer’s Report, page 2).
14. The subject right-of-way, located at the southern tip of the Bolton Peninsula, does not
provide for overall area or neighborhood circulation for the general public, nor is there any
anticipated future need for this right-of-way to serve the general public. The road is a dead
end. (County Engineer’s Report, page 2).
15. RCW 36.87.040 and JCC 12.10.050(2)(e) require the County Engineer to give an
opinion as to whether the public will benefit by the vacation; however, neither provide
guidance as to what might be considered a “public benefit” when vacating a public right-of-
way. The legislative body is held to be the proper entity to weigh public benefit, and there is
a presumption that an ordinance approving a street vacation was validly enacted for a public
purpose (London v. Seattle, 93 Wn.2d 657 (1980)). In the absence of any need for a road
right-of-way for the benefit of the general public (circulation, trails, utilities, etc.), typically
any benefit would accrue to the property owners with frontage on the vacated right-of-way.
These benefits might include additional building space, room for septic systems, green-belt
buffer, the ability to keep the public from trespassing on their property, or other benefits.
Benefits to the public and County could include reduced road maintenance costs, reduced
liability for managing public right-of-way (such as garbage dumping, timber theft, danger
trees, or abandoned vehicles), and increased property tax. All of these reasons have been used
in the past to support road vacations and could support a finding of public benefit for the
vacation of the subject right-of-way. (County Engineer’s Report, pages 2 and 3).
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RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – A PORTION OF GUSTAVSEN
ROAD – COUNTY ROAD NO. C327809
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GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
Review criteria for all road vacation petitions, found in JCC 12.10.110.
16. JCC 12.10.110, captioned “Review Criteria”, mandates that road vacation petitions
shall be reviewed according to the following criteria, numbered 1-7. Additional findings by
the Hearing Examiner are provided in italics below each of the criteria:
(1) The proposed road vacation complies with the Jefferson County comprehensive
plan and any other applicable plans, policies, or ordinances.
County staff from the Public Works and Community Development reviewed the
petition, and expressed no concerns regarding the requested vacation. Community
Development staff generated a report, summarizing their review of County codes and
policies, noting several mapped critical areas in the vicinity (Ex. E), recommending
approval of this petition. (Engineer’s Report, page 3).
(2) Roads should not be closed, vacated, or abandoned when land uses or
development plans, or occurring patterns, indicate their usefulness for area
circulation. Prior to a vacation decision, an examination should be made of its
probable effect on overall area circulation in the neighborhood. Single or multiple
vacations should be considered a positive tool toward improving neighborhood
circulation and accesses.
The segment of roadway at issue is a dead-end and provides no circulation
opportunities in the affected area.
(3) The effectiveness of fire, medical, law enforcement, or other emergency services
should not be impaired by the closure, vacation, or abandonment of county roads.
Appropriate authorities should be consulted with respect to this policy.
The effectiveness of emergency services will not be impaired by this road vacation. It
is a dead-end roadway serving only the Alvord and FPHA parcels. No opposition to
the Notice of Intent to Vacate the subject right-of-way was received from the Sheriff’s
office, Fire District #2 or JeffCom911, nor was any opposition evidence provided
through the entire public hearing process. (Engineer’s Report, page 3; Staff Report,
Ex. 3, copies of agency comments received).
(4) Roads should not be closed, vacated, or abandoned when such routes can
effectively be used for utility corridors. Suitable utility easements could be retained
as a means of satisfying this policy. Public and private utility companies and their
plans should be consulted with respect to this policy. In compliance with
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – A PORTION OF GUSTAVSEN
ROAD – COUNTY ROAD NO. C327809
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GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
RCW 36.87.140, the board of county commissioners may retain an easement within
the subject vacated area for the construction, repair, and maintenance of public
utilities and services.
No opposition from public or private utility companies or providers was received in
response to the Notice of Intent to Vacate the subject right-of-way. However, if
necessary, and in compliance with RCW 36.87.140 and JCC 12.10.130(2)(a), the
Board of County Commissioners may retain an easement within the subject vacated
area for the construction, repair, and maintenance of public utilities and services.
(5) Roads should not be closed, vacated, or abandoned when such routes can be
effectively used for trails or pathways. Suitable trail easements could be retained as a
means of satisfying this policy. The Jefferson County parks, recreation, and open
space plan should be used as a guide to determine trail needs.
Since the road is a dead-end, does not provide direct public access to water or a
beach, and the fact that there are no Jefferson County Parks located within or
currently proposed in the area, the subject right-of-way is not a prime candidate for
a public trail.
(6) In compliance with RCW 36.87.130, no county road or part thereof should be
vacated that abuts on a body of salt or fresh water, unless the vacation is to enable
any public authority to acquire the vacated property for port purposes, boat moorage,
or launching sites or for park, viewpoint, recreational, educational, or other public
purposes, or unless the property is zoned for industrial purposes.
The subject right-of-way, although close to Quilcene/Dabob Bay, does not abut the
water, so this statutory prohibition does not apply.
(7) The proposed vacation will not land lock any parcel of property.
The subject right-of-way provides the only current legal access to parcel 601-061-
003, also owned by Alvord Investments, LLC (see maps, Exhibit A). As long as that
parcel and parcel 601-061-009 continue to be under the same ownership, parcel 601-
061-003 will not be landlocked. However, as a condition of approving any vacation,
Alvord Investments has expressed a willingness to record a Restrictive Covenant to
both parcels, warranting that an ingress/egress/utility easement will be reserved or
granted over parcel 601-061-009 to benefit parcel 601-061-003 if ownership of those
two parcels is ever segregated.
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RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – A PORTION OF GUSTAVSEN
ROAD – COUNTY ROAD NO. C327809
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GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
Compensation required for Class A and Class B rights-of-way.
17. Again, for reasons explained above, the County Engineer determined that this
segment of roadway is a “Class A” right-of-way. (County Engineer’s Report, on page 2,
finding no. 6). JCC 12.10.120 requires the Principal Petitioner to compensate the County for
all Class A and Class B vacated rights-of-way in compliance with RCW 36.87.120.
Accordingly, any resolution approving vacation of the subject right-of-way shall not be
effective until compensation is provided as described in the following findings.
18. JCC 12.10.120(1) provides: “Base Payment. The Principal Petitioner shall pay, with
respect to the vacation of either or both Class A and Class B roads or rights-of-way a sum
equal to one-half of the current fair market value (as of the date of the petition) of the area
so vacated if the county holds title through a dedication, or the full current fair market value
(as of the date of the petition) if the county acquired the subject rights-of-way other than by
dedication, e.g., fee simple interest.”
19. The County did not acquire the subject right-of-way through dedication – instead, it
reserved the right-of-way when it deeded the remainder of SE1/4 SE1/4 Section 31, T27N,
R1W in 1946. Therefore, if the vacation is approved, the Principal Petitioner shall be required
to compensate the County for the full fair market value of the property, which has been
determined to be $20,000.00 based upon an appraisal commissioned by the Principal
Petitioner (see Appraisal Report, included in the record as Exhibit F).
20. JCC 12.10.120(2), imposes an “Additional Payment” requirement with respect to
vacation of a Class A road or rights-of-way, reading in relevant part as follows: “...in
addition to the base payment described above [in subsection (1)], the principal petitioner(s)
shall pay to the county any and all other administrative costs incurred by the county in
vacating the road.” The County Engineer’s report explains that, to-date, the Principal
Petitioner has paid a total administrative fee of $1,396.75, which was the 2021 fee for
vacating road, although the Petition was submitted in 2022. The 2022 fee is $1,477.08. The
Petitioner shall be required to pay the difference ($80.33) plus any fees and costs incurred
which exceed the 2022 fee, whether or not the vacation is ultimately approved. These would
include, without limitation, the 2022 and 2023 costs associated with preparing for and
conducting a hearing with the Hearing Examiner, preparation and issuance of the Hearing
Examiner’s report, reviewing documents submitted by the Petitioner, document recording
fees, and other associated expenses incurred by the County.
21. Based on consideration of all evidence in the record, subject to the recommended
conditions of approval, and subject to payment of all compensation due, the Hearing
Examiner finds and concludes that the petition satisfies all approval criteria and should be
granted by the Board of County Commissioners.
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – A PORTION OF GUSTAVSEN
ROAD – COUNTY ROAD NO. C327809
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GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
V. CONCLUSIONS OF LAW.
1. The Hearing Examiner has jurisdiction and responsibility to consider issues presented
in this petition and issue this detailed report and recommendation to the Board of County
Commissioners.
2. Based on findings provided above, the pending request to vacate a portion of
Gustavsen Road as described in the County Engineer’s Report satisfies all review criteria
provided in JCC 12.10.110.
3. The proposed conditions of approval included in the Engineer’s Report are supported
by a preponderance of evidence in the record, consistent with applicable law, and in the public
interest.
4. Any legal conclusions or other statements made in previous or following sections of
this document that are deemed conclusions of law are hereby adopted as such and are
incorporated herein by this reference.
VI. RECOMMENDATION.
Based upon all evidence in the record, and all findings and conclusions provided
above, the Hearing Examiner respectfully recommends that the Board of County
Commissioners should formally vacate the following segment of County right-of-way,
subject to Conditions of Approval set forth below:
A portion of Gustavsen Road, County Road No. 327809, identified as the
westernmost 100-feet of Gustavsen Road right-of-way on the southern end of
the Bolton Peninsula, southeast of Quilcene, Washington, and legally
described as: the south 40 feet of the east 100 feet as measured along the
south line of the west 455 feet of the southeast quarter of the southeast quarter
of Section 31, Township 27 North, Range 1 West, W.M., Jefferson County,
Washington. (See County Engineer’s Report, Ex. A, maps and legal
description).
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RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – A PORTION OF GUSTAVSEN
ROAD – COUNTY ROAD NO. C327809
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GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
VII. CONDITIONS OF APPROVAL.
Before the requested road vacation can take effect, the Principal Petitioner shall:
A. Record a Restrictive Covenant to title on parcels 601-061-003 and 601-061-009,
warranting to reserve or grant an ingress/egress/utility easement over parcel 601-061-
009 for the benefit of parcel 601-061-003 in the event ownership of the two parcels
is ever segregated;
B. Provide a Quit Claim Deed to be recorded at the same time as a Resolution
approving the vacation, conveying any interest in the subject right-of-way held by
Fisherman’s Point Homeowners Association to Alvord Investments, LLC; and
C. Pay all required compensation owed to the County for the vacated right-of-way
and administrative process.
ISSUED this 1st Day of March, 2023
_____________________________
Gary N. McLean
Hearing Examiner