HomeMy WebLinkAboutHearing Examiner report Ricky Beach Drive Department of Public Works
Regular Agenda
Page 1 of 2
Jefferson County
Board of Commissioners
Agenda Request
To: Board of Commissioners
Mark McCauley, County Administrator
From: Monte Reinders, P.E., Public Works Director
Agenda Date: March 27, 2023
Subject: A Resolution adopting Hearing Examiner report and recommendations,
and expressing Board's intent to vacate a County Right-of-Way known as
Ricky Beach Drive, subject to Petitioner meeting certain conditions
Statement of Issue:
In accordance with JCC 12.10.090, the Board is asked to consider the Hearing Examiner's
Report and recommendations (attached) pertaining to a petition to vacate a County right-of-
way known as Ricky Beach Drive located in Govt. Lot 1, Section 2, Township 27 North, Range
1 East, W.M. and dedicated in the plat of Termination Point, Volume 4 of Plats, Pages 25A and
25B (recorded at Auditor's File No. 170298 in 1961). See attached maps.
Analysis/Strategic Goals/Pro's Et Con's:
A public hearing on the road vacation petition was conducted before the Jefferson County
Hearing Examiner on December 20, 2022. Based upon the recommendations contained in the
County Engineer's report, as well as testimony presented from other departments, agencies,
and individuals, the Hearing Examiner has recommended that the road vacation be approved
subject to Petitioner meeting the following conditions:
A. Provide a mechanism, possibly in the form of one or more easements, for alternative
access for all owners of all lots within the Plat of Termination Point - including without
limitation Lot 57 - to access community beach lots (Lots 9, 10 and/or 19), with
appropriate language expressly identifying and describing the lot, lots, or portions
thereof, through which owners of lots in the plat hold rights to access the beach, as
credibly demonstrated by the petitioner using binding legal instruments, subject to review
and confirmation by the County's attorney.
B. Provide a mechanism, possibly in the form of one or more easements, providing access to
and from Shine Road, benefitting all the lots within the Plat of Termination Point and any
other lot or lots that currently rely upon Ricky Beach Road for access to Shine Road,
including Parcel Numbers 721-022-004, 721-022-002 and Lot 8. This condition requires
reference to all lots and parcels as they exist on the date any road vacation is approved,
whether under common ownership by the petitioner or others, regardless of whether a lot
may obtain access via some other route or through another lot under common ownership.
Such document(s) shall be subject to review and approval as to form and compliance with
this condition to the satisfaction of the County's attorney.
C. The mechanisms or easements required by the two previous conditions A and B. may be
accomplished using one legal instrument, subject to review and approval as to form and
compliance with these conditions to the satisfaction of the County's attorney.
Department of Public Works
Regular Agenda
Page 2 of 2
D. Record a restrictive covenant, easement, or other binding legal instrument, granting
access to County officials along the vacated right-of-way for general emergency, public
safety, and law enforcement purposes, expressly including site-visits, inspections or
investigations related to legal (regulatory) compliance issues, including without limitation
any conditions of approval imposed as part of any road vacation approved by the Board of
County Commissioners. Such document shall be subject to review and approval as to form
and compliance with this condition to the satisfaction of the County's attorney; and
E. Pay all required compensation owed to the County for the vacated right-of-way [to be
determined based on an updated appraisal of the property] and administrative process.
Although the official public hearing was conducted by the Hearing Examiner, pursuant to JCC
12.10.130(1) the Board has the discretion to accept public testimony in support or in
opposition to the proposed vacation.
Fiscal Impact/Cost Benefit Analysis:
The Petitioner will pay remaining costs, including land value compensation, associated with
the road vacation prior to adoption of a final resolution officially vacating and abandoning the
subject right-of-way.
Recommendation:
Department of Public Works recommends that the Board adopt the Hearing Examiner's
findings and conclusions and approve the vacation of the subject right-of-way subject to
Petitioner meeting the Hearing Examiner's recommended approval conditions, with the
clarification that County staff shall record all of the legal instruments described above at the
same time as staff records any final Resolution officially vacating the subject right-of-way.
The recording fees will be included with the other administrative fees to be paid by
Petitioner.
Public Works recommends that the Board sign the attached Intent to Vacate Resolution which
will commit the Board to adopting a final Resolution which will officially grant the petition to
vacate the right-of-way upon verification that Petitioner has met all of the required
conditions within one-year. Failure to meet the conditions within that timeframe, or any
extension approved by the Board, will result in termination of the vacation process, in which
case Petitioner will remain liable for all administrative costs incurred by the County.
Department Contact:
Colette Kostelec, P.E., Engineer III/Right-of-Way Representative, 385-9218
Reviewed B -
3 L2 - 3
Mark McCauley,61bunty Administrator Dat
STATE OF WASHINGTON
COUNTY OF JEFFERSON
In the matter of }
an Intent to Vacate } RESOLUTION NO.
Ricky Beach Drive right-of-way }
WHEREAS, in 2001 Jefferson County Public Works received a petition submitted by Russell Trask
("Petitioner")to vacate the Ricky Beach Drive right-of-way dedicated to the County in the Plat of Termination
Point,Volume 4 of Plats,Pages 25A and 25B,located in Section 2,Township 27 North, Range 1 East,W.M.
("subject right-of-way");and
WHEREAS, due to the more than 20 years that have elapsed since the Hearing Examiner originally
reviewed the matter in 2001, the Board of County Commissioners remanded the matter to the Hearing
Examiner to re-review the petition to vacate;and
WHEREAS, the Jefferson County Hearing Examiner held a public hearing on the road vacation
petition on December 20,2022;and
WHEREAS, the Jefferson County Hearing Examiner considered the 2001 report of the Hearing
Examiner, and testimony of the public, comments from applicable departments, agencies and offices, and
recommendations from the Jefferson County Engineer at the public hearing;and
WHEREAS, the Jefferson County Hearing Examiner has issued a report dated March 7, 2023
("Hearing Examiner Report") which contains findings, conclusions and a recommendation that the Board
approve the road vacation subject to the Petitioner meeting the following conditions:
A. Provide a mechanism,possibly in the form of one or more easements,for alternative access for all
owners of all lots within the Plat of Termination Point—including without limitation Lot 57—to
access community beach lots(Lots 9, 10 and/or 19),with appropriate language expressly
identifying and describing the lot, lots,or portions thereof,through which owners of lots in the
plat hold rights to access the beach,as credibly demonstrated by the petitioner using binding legal
instruments, subject to review and confirmation by the County's attorney.
B. Provide a mechanism,possibly in the form of one or more easements,providing access to and
from Shine Road,benefitting all lots within the Plat of Termination Point and any other lot or lots
that currently rely upon Ricky Beach Road for access to Shine Road, including Parcel Numbers
721-022-004, 721-022-002 and Lot 8. This condition requires reference to all lots and parcels as
they exist on the date any road vacation is approved,whether under common ownership by the
petitioner or others,regardless of whether a lot may obtain access via some other route or through
another lot under common ownership. Such document(s)shall be subject to review and approval
as to form and compliance with this condition to the satisfaction of the County's attorney.
C. The mechanisms or easements required by the two previous conditions A and B,may be
accomplished using one legal instrument, subject to review and approval as to form and
compliance with these conditions to the satisfaction of the County's attorney.
D. Record a restrictive covenant,easement,or other binding legal instrument,granting access to
County officials along the vacated right-of-way for general emergency,public safety,and law
enforcement purposes,expressly including site-visits, inspections or investigations related to legal
(regulatory)compliance issues, including without limitation any conditions of approval imposed
as part of any road vacation approved by the Board of County Commissioners. Such document
shall be subject to review and approval as to form and compliance with this condition to the
satisfaction of the County's attorney.
E. Pay all required compensation owed to the County for the vacated right-of-way[to be determined
based on an updated appraisal of the subject right-of-way] and administrative process;and
WHEREAS, the Jefferson County Board of Commissioners has considered the Hearing Examiner
Report and the recommendations contained therein;
NOW,THEREFORE BE IT RESOLVED,that the Board of County Commissioners hereby adopts
the Hearing Examiner's findings,conclusions and recommendations with the clarification that all of the legal
instruments described above shall be recorded by County staff,at Petitioner's expense,at the same time as
the recording of any final resolution adopted by the Board officially granting the vacation of the subject right-
of-way. Upon verification by the Public Works Department that Petitioner has met all of the conditions
identified above,and pursuant to Chapter 36.87 RCW and Chapter 12.10 JCC,the Board shall adopt a
resolution officially granting the petition and vacating and abandoning the subject right-of-way described
above. If Petitioner fails to meet the required conditions within one year from the date of this Resolution,
or any approved extension,the vacation process shall terminate, in which case Petitioner shall remain
liable for all administrative costs incurred by the County.
APPROVED this day of ,2023.
JEFFERSON COUNTY
BOARD OF COMMISSIONERS
Kate Dean, District 1
Heidi Eisenhour,District 2
ATTEST:
Greg Brotherton,District 3,Chair
Clerk of the Board
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TERMINATION POINT
SITUATED IN GOVT. LOT I , SEC. 2, TWP 27 N, R I E , W. M.
JEFFERSON COUNTY, WASH.
SCALE: 1"- 100' JUNE,1961 GEORGE ROATS
CIVIL ENGINEER 9 LAND SURVE10R
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TERMINATION POINT
SITUATED IN GOVT. LOT I , SEC. 2, TWP. 27 N, R I E, W. M.
JEFFERSON COUNTY , WASH.
JUNE, 1961
SHEET 2 OF 2 SHEETS
LAND SURVEYOR'S GERTIF/GATE DESCRIPTION
/ hereby ceredy that the plat Of "TERM/NAr/ON AbINr' This plot Of "TERM/NAT/oN PO/N7'CQ?1pN3CS O portion of Oo✓L. Lot f,.Set.2,
�G E qG o based upon an actor/survey one/sub-d'vrsian of Section 2, Tivp.Z7 N, R I E, {YM. in Jefferson Ca, Wash., described as fd/ows:
�G'a"`Oa 9� Twp 27 N, Q/E, W.M., Mae the distances and courses 6eyimmy at a pe,oa Cie Mese Line a7 sold Ser.2 wh%ch o S/'3920 W 30.00 fl,from
04 M1 N aF anq/es ore shown thereon correctly, the monurxnes the NVcc mr of smY Govl.Lot 1; thaxe S/'3920,,V 1210.5A1 ft.to ehe Gove.Akiw-
have been set and all/at and block corneas hove heen derLlne;ehmceaiwV the sold Meander Line Nd6'27:30'E 636.82 ft.;
t staked on the 9raund. thence M 70°/3'29'5 520. (C'; Mencir /eovIng Meander L%ne N/'39'ZtaE
/ 227.14 ft. to a µoipe on a curve having a radlLs of f30.00 A. and t�nr
ing S 54°1.f'26"E from the point of rodius; thence along said curvy
` sup Cly%l Enqr.ord tarn'Sv/Yeyor. to the left on are distance of /5.32 ft.; thenCr. IV 29°0/'Z0'E 1SS.<B
fe.; thence S BB 120.69 A. to the E boundary of Go✓e.Lot l;
thence along sold boundary M 1'39'20'E 9d4.42 It. eo a point
DEDICATION S/'39'20"la 50.00 ft. from the NE corner of said Govt. Loe I; thence
A/BB°/9'dl",W 1319.77 fe. to the point of beginning. 7ooe7HeR whet
KNOW ALL MEN aY 7-/42.5E PRESENr5 that BBQNAO/Nb PARKKO, SECOND CLASS TIDE LANDS.
wife of Mormon Parkko, as her separate e-seote, owner/n fee simple of
the land hereby plotted and GEOROE D.BARCLAV arKl 411.42Y✓EAR BARCLAr,
171s Wife, DONALD Y 4NDER1aN and Paeory✓ 0.4NaERsomp his wife, and
H.$#L. BLOCK, a California Corporation, Caneract purohosers of
the /and hereby ploeeml, hereby declot- this plot arddedicate to the CORPORATE ACKNOWLEDGMENT
use of the pub/ic forever a//streets, avenues and places shown on the
plot and the use Mereo! fa•any and a//pu61lc purposes not incons/seefnt 57ATE of WASHiNC70N )
with the use thereof for pubGb highway purposes, o/so the right to make COUNTY of KI rsAv
a//necessary slopes for cuts oi><d fi//s upon the lots a7d blocks shown a?
this plot/7 the rvsonob.- orlglro/gmc/inq of ad the streets,avenues,and This 0 eo certify that on the .Zo=° day of _x'tiE /961 AO.
places -,bowl?hereon. Afro the right to drain a// streets over ono'acras5 *tore me, ehe undersigned, a Notary Public in and for the State of
any lot or lots whore water might take a natCrro/ course after Ile street Washington , avy commashoned and sworn, personally appror
or streets ore grimed. A/1 lots, traces or parcels of land embrocevd in -ecl OEWEy H. Mo4eERo and M. ✓OHM SLIKAS to ne known to be
eh%s p/at are .sublecl eo and shall be sold a-Wy under the fbl%wing rtestrit- the P'eES/DENr and .SECRETARY respectlkrly of H¢L BLOCK,
Gans: a Co/ifornib Corporot/on, the corporation Ghat e.tecuted the wiOun lore-
No permonent structure or bu//ding sho//be constructed on any lot, going instrument and ack170W/e4K& the Some to be Me froe and vo/uneory
tract or parcel of this plat closer than ZO A to the lnorgli7 of any street act and deed of said corporation, for the use and purposes eherein men-
or rood. No lot, tract or portion of a lot or tract of this plot shall be tinned, and an oath stoted ebot ehey Were authorized to execute said Imeru-
d/✓ided and sold, or resold, or ownersh%p chargee or eronsferred wherrfry mmt by reso/ul%cn of the CmM of DHrrta v of said coruorae%on and that
me ownership of any portion of this plot sho//be less than 7300 5q.ft. the seal a!/%red is the corporate seo/ of sold corpontim.
or less thou 50 ft. In width at its narrowrst port. In witness n6ere0! / boor herruneo set R5 hard and sen/ the day and year
/n witness whereat me have heree neo set=and Jsa/s. first above Wrietem i
OEoR G D. 4cL4v DERNAD/N6 PARKKa Notoy RANrE- iniond for eXe State of Woshinglen
ref%OShg at /ndAano/a.
J H�L LOCK, A GILIFOR"U CORP4P TION
aoNALD r A10.1'D/JRMO „N APPROVALS
79
OOPOPIV a ANDSCN v..,
Approved 6Y me t.'Sls day of /9L!A.D.
ACKNOWLEDGMENT FA -It—,
SNatmame
JrAre OF wASN/NOTON
COUNTY OF KITSAP S.S.
� Approve4 �byp the Baa-e cJ�Ccrvny Ganmanerr this aby a✓;'. _1961 A.D
Th%s is to certify that on the ��-doy o! -7..t /%/A.O. before me, Arresr: -ill,( -�57�spa-,e �4! ll�
the undersigned o notary public in and for the State of !'Yashinglon �-
4ao/raR Aso Ler/e�ItNt oAw of e0.coW CgA4Mt4Y O tRe JOA,Po of cO.C04tAlt i
duly comm%ss%oned and sworn, personally appeared BERNADINE RARKKo,
OzoeCE D.dARr"y and MARY✓HAM BARCLAY, his wife, and DJNALD Y.4NDe2SON
and Doeorlvy G.ANDERSON, his wife, Lo me known to be Me fnd%v/o'rro/s des-
cribed %n ono'who e,recuted ehe lblWoing /werument and oaknow/edged to nx TREASUREReS CERT/F/GATE
that eney signed th and seokd the sax as eir d free an vo/untory ail and
deed for Me use and purposes mentioned therein. J./
trevsuir of Jefferson lo., Warh. hereby cent%/y
In witness whereaf I have hereunto set my hand and stro/ the day Mae as eaAes on the above property are pave Op to and inc%,dhg Vv year
and year first above written. - A.D.
ye �- 2f+�ae-
COUNTY TRUJuRele
`Natory Pub/rc in and d for the State RECORDING CERTIFICATE
of Wash. residing ae re°n�4..ale
Filed fo'record of the request o/
s Nai 4.D. at =:.s me. post / o'clo&4 and
recaratd " Yo%q of Phoes poge°_q- , 'eerords of„�L-fferson Ca. Wash.
H-e f`I L EADS By:
COUNTY AUOtrog
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These data are provided on
an"AS-IS"basis, without Ricky Beach Drive ���SON BOG
warranty of any type, 2
expressed or implied, including
but not limited to any warranty
as to their performance, Ay t�
merchantability, or fitness for 1:4,514 Date: 10/18/2022 �S'yt NV,,,0
anV Darticular Duroose.
1 Before Hearing Examiner
Gary N.McLean
2
3
4 BEFORE THE HEARING EXAMINER
FOR JEFFERSON COUNTY
5
6
In the Matter of the Petition to Vacate )
7 Ricky Beach Drive, identified as County )
Road No. 504809, submitted by ) FINDINGS, CONCLUSIONS,AND
g ) RECOMMENDATION OF
RUsSELL TRASK, ) APPROVAL TO THE BOARD OF
9 (MEMBER,TERMINATION POINT,LLQ ) COUNTY COMMISSIONERS
)
10 Petitioner/Property Owner )
11
12 I. SUMMARY OF RECOMMENDATION.
13
The petition should be granted, vacating Ricky Beach Drive, subject to updated
14 conditions of approval.
15 II.JURISDICTION;LEGAL AUTHORITY.
16 This matter came before the Hearing Examiner who is responsible for conducting a
17 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
18 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
19 Commissioners to grant or deny the petition, with any conditions of approval. (See JCC
20 12.10.080).
21 Based on legal authority summarized in Conclusions of Law provided elsewhere in
this document, the Jefferson County Board of County Commissioners, in the good faith
22 discharge of its legislative responsibilities, is free to disagree with any hearing examiner
recommendation. JCC 12.10.090 reads in part: "(1)The Jefferson County board of
23 commissioners shall review the report and recommendation of the Jefferson County hearing
24 examiner. The Jefferson County board of commissioners shall either deny or accept and
adopt, in whole or in part, the findings, conclusions, and recommendations of the hearing
25
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING ExAMiNER
—COUNTY ROAD NO.C504809 FOR JEMRSON COUNTY
Page 1 of 23
examiner,and shall make a final determination whether the request shall be denied,approved,
1 approved with conditions,or approved in part.The board of county commissioners may make
2 separate or revised findings and conclusions. These shall be based upon testimony presented
at the public meeting at which the hearing examiner's recommendation is considered."
3
Under RCW 36.87.080, "no county road shall be vacated and abandoned except by
4 majority vote of the board properly entered,or by operation of law, or judgment of a court of
5 competent jurisdiction."
6 III. RECORD.
7
Exhibits entered into evidence as part of the record, and an audio recording of
8 testimony provided at the public hearing,are maintained by the Jefferson County Department
of Community Development, in accord with applicable law. In this Recommendation,
9 materials included as part of the Record are numbered and identified as follows:
10
■ Staff Report to the Hearing Examiner,prepared by Collette Kostelec,dated December
7, 2022, for hearing set for December 20, 2022, with the following 7 exhibits, as
12 numbered and identified on page 3 of such report:
I' 1: Plat of Termination Point
14 2: County Engineer's Report with Exhibits
3: List and map of adjacent property owners sent notice
15 4: Agency/businesses/departments responses
16 5: Letter received 12/5/2022 from the Cooper-Long family
6: Posting notice verification
17 7. Publication notice
18 ■ County Engineer's Report to the Hearing Examiner,dated October 25,2022,with the
following exhibits, as numbered and identified on page 9 of such report:
19
A. 2001 Hearing Examiner's report
20 B. 2001 Petition
21 C. Maps
D. Photos (taken April 20, 2022)
22 E. Emergency Service Provider Comments [none received in 2001;to be
supplemented with any comments received during current public comment
23 period]
F. Utility Comments [to be supplemented with any comments received
24 during current public comment period]
25
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING ExAmINER
—COUNTY ROAD NO.C504809 FOR JEFFERSON COUNTY
Page 2 of 23
G. Parks Advisory Board Comments [to be supplemented with any
1 comments received during current public comment period]
H. Termination Point Properties' draft easement for Beach Access
I. Termination Point Properties' draft easement for Lot 57 and Tax
3 Parcel 721022002
J. Department of Community Development Comments [to be
4 supplemented with any comments received during current comment period]
K. Public Testimony [copies of written comments received during
5 comment period; *also includes any post-hearing written comments received
6 by County staff on or before December 28, 2022,given snow-event on hearing
date that may have made it difficult for some individuals to participate,
7 consistent with direction provided by the Examiner during the public hearing]
L. County Engineer's Response to post-hearing Comments from Lot 57
8 Owners, dated January 3, 2023 [*Prepared by County Engineer based on
9 direction provided by the Examiner before close of the public hearing]
to Letter and Memorandum from Lincoln Miller, attorney for the petitioner, dated
December 15, 2022, summarizing petitioner's position and reasons they believe the
l 1 requested road vacation should be approved.
12 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
13 County staff on December 20, 2022. The petitioner was represented by counsel, Lincoln
14 Miller. County staff was represented by Barbara Ehrlichman, from the County Prosecutor's
Office. *A snow event impacted Jefferson County on the day of the hearing,so the Examiner
15 held the record open for additional written public comments through December 281,with an
opportunity for Staff to respond as needed in the following weeks. Staff updated public
16 information about such additional comment opportunity on the County's website:
17 1. Monte Reinders,P.E.,Public Works Director and County Engineer,prepared the detailed County
Engineer's Report that is included in the record. Mr. Reinders summarized the long history
18 associated with this matter,noted that Public Works does not object to the requested road vacation,
explained that he agrees with most of the Petitioner's hearing memo except he pointed out that
19 this hearing process is a new hearing, that the Board of County Commissioners are the final
decision makers, and that approval of a road vacation is a legislative decision by the
20 Commissioners.
21 2. Colette Kostelec, Engineer III/Right-of-way representative with the Public Works Department,
and Helena Smith,with the Department of Community Development,both appeared during the
22 course of the hearing, and helped address logistical concerns related to the snow event and
confirmed they would update the County's website to explain how the record was held open to
2 3 allow for written comments if individuals were unable to participate on the hearing day.
24 3. Lincoln Miller, the petitioner's counsel, summarized his client's position, arguing that this is a
remand of a 2001 recommendation of approval, already made by a previous hearing examiner,
25
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEAuNG ExAmmm
—COUNTY ROAD NO.C504809 FOR JEF MON COUNTY
Page 3 of 23
nothing more,and that all provisions of such recommendation have been satisfied.
1
4. Nezam Tooloee(sp?),neighboring property owner,lives at end of Longmire Lane to the west of
2 the current Ricky Beach Drive end, spoke in favor of the requested road vacation, directed
attention to page 4 of Mr.Miller's hearing memo,explained that he believes the road vacation will
3 improve security for the area.
4 No one appeared during the public hearing to submit written comments or verbal
testimony opposing or questioning this road vacation. The owners of Lot 57 submitted a
5 post-hearing written comment on December 28,2022,which is included as part of Ex.K,and
6 was addressed in the County Engineer's post-hearing response memo listed above.
7 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
8 and researched relevant codes, caselaw, and ordinances; and is fully advised. Accordingly,
this Recommendation is now in order.
9
10 IV. FINDINGS OF FACT.
I I l. 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
12 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
13 identify some of the key topics addressed in this Recommendation.
14 2 The Principal Petitioner in this matter is Russell Trask, as a registered Member of
I Termination Point Properties, LLC ("TPP"), and there is no dispute that Termination Point
Properties, LLC owns the majority of property fronting Ricky Beach Drive, County Road
16 No. 504809. (County Engineer's Report,pages I and 2; Ex. C, maps).
17 3. More than 20 years ago, Mr. Trask submitted a road vacation petition, seeking to
18 vacate all of Ricky Beach Drive. Consistent with County code requirements,the matter came
before the County's Hearing Examiner in 2001,for a public hearing which included a detailed
19 report from the then-County Engineer. There is no dispute that the previous Hearing
Examiner issued a written report and recommendation of approval subject to specific
20 conditions in August of 2001, a copy of which is included in the record as Ex. A.
71 4. There is no dispute that the previous recommendation was not presented to the Board
of County Commissioners, because Staff believed that the petitioner should first satisfy all
recommended conditions of approval. (County Engineer's Report issued in 2022, page 1).
23 In short,the recommended conditions from 2001 tasked the petitioner with responsibility for
developing"mechanisms"and a"private road easement"addressing continued beach access
24 for lot owners in the affected plat sufficient to replace access currently provided by the public
25
6 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING EXAMINER
—COUNTY ROAD NO.C504809 FOR JEFFERSON COUNTY
Page 4 of 23
right of way (Ricky Beach Drive); and access to Lot 57 to replace access currently provided
1 by Ricky Beach Drive, among other things.
2 5. The previous Hearing Examiner expressly concluded that:
3
5. The mechanisms discussed in Conclusions 3 and 4 should have been
4
negotiated before the public hearing. If satisfactory mechanisms
5 cannot be found, the Board should remand the matter to the Examiner.
6
7 6. A complete reading of the 2001 Hearing Examiner's report shows that"Conclusions
3 and 4"referenced above are the portions of the prior Hearing Examiner's report explaining
g the need for "mechanisms" [presumably easements or similar legal instruments] to provide
beach access rights and a private road easement for continued access to Barbara Cooper's lot,
9 i.e. Lot 57.
10 7. As explained in the County Engineer's 2022 Report, since 2001, the petitioner
11 proposed various versions of easements to address beach access and continue access to Lot
57,but none of their drafts met with County staff approval, for a variety of reasons. (County
12 Engineer's Report,page 1).
13 8. In April of 2022, after discussions amongst Petitioner representatives and County
14 Staff, the pending petition was brought before the Board of County Commissioners. The
Board remanded the matter to the Hearing Examiner before reaching a final decision.
15 (County Engineer's 2022 Report,page 2). As shown above, such action is fully consistent
with the prior hearing examiner's report, where it stated that if satisfactory mechanisms to
16 address specific conditions of approval cannot be found, then the Board should remand the
matter to the Examiner.
17
18 9. In any event, the pending petition seeks to vacate all of Ricky Beach Drive right-of-
way, identified as County Road No. 504809. Ricky Beach Drive is on Termination Point,
19 north of Hood Canal, south of SR 104 and Shine Road(a County road),just west of and with
easy access to and from the western end of the Hood Canal Bridge. The site location, so
20 close to a major state transportation corridor, serves to amplify concerns expressed by the
petitioner and other property owners—including the owners of Lot 57—to the effect that the
21 area is sometimes used by people to engage in bad behaviors, like drug use, or improper
22 disposal of various materials and garbage on and around the existing Ricky Beach Drive
right-of-way.
23
24
25
6 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING EXAbONER
—COUNTY ROAD NO.C504809 FOR JEFFERSON COUNTY
Page 5 of 23
10. The petitioner's counsel submitted a pre-hearing memorandum, which included the
1 following aerial illustration marked to show the roadway subject to this vacation request and
2 surrounding parcels:
3
4
F 4i 4 4 75
5
t a a sa
6 t 43 a,
4 s
a 4/ 48 a �Z
7
44
72
9
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Z I
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'f 37 S6 '�' 4•�3a'
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19 /f9 Mir r
20 11. The Ricky Beach Drive right-of-way is 60 feet in width, with a wider cul-de-sac at
21 the end, running about 1,650 feet in length.! It is fully contained within the plat of
Termination Point as recorded November 6, 1961 in Volume 4,Page 25,records of Jefferson
22 County, located in Section 2, Township 27 North, Range 1 East, W.M. (County Engineer's
2022 Report on page 2;Exhibit B—2001 Petition; and Staff Report, Ex. 1, copy of recorded
23 Plat of Termination Point from 1961).
24 ' Using these undisputed figures,the vacated roadway area would be approximately 99,000 sq.ft.(60 x 1,650),
25 which is 2.27 acres(Acre size is 43,560 sq.ft.;99,000/43,560=2.27).
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING FYAMINER
—COUNTY ROAD NO.C504809 FOR JEFFERSON COUNTY
Page 6 of 23
1 12. Ricky Beach Drive begins at Shine Road (a county road) and terminates at a dead-
2 end cul-de-sac. The road is the sole access for Lots 8-19, Lots 36-41, and Lot 57 of the Plat
of Termination Point and for parcel 721022004 (located outside of the boundaries of the
3 Termination Point plat but owned by Petitioner).Termination Point Properties,LLC of which
the Petitioner is a co-managing member, is the majority frontage owner for the proposed
4 vacation area as required by RCW 36.87.020. (See Exhibit C —Maps; County Engineer's
5 2022 Report on page 2).
6 13. The County Engineer's 2022 Report explains that Ricky Beach Drive is primarily a
gravel surfaced road except for the first 250 feet which is chip sealed. The road has been
7 closed since 1997 by order of the Board(Resolution No. 10-97)due to a landslide hazard. In
1997, cracks opened up in the road where it crosses a large landslide headscarp about 350
8 feet from its beginning. The County chose not to repair the road for several reasons:
9 • Landslide activity, while sporadic and slow, is ongoing.
10 • The road does not access developable land due to the presence of the large
landslide.
1 1 • The road does not provide public access to the beach/water.
• A Petition to vacate the road was submitted in 1996 and then again in 2001. It
I did not make sense to spend public funds on a road with a pending road vacation.
13
14. There is no dispute that the Petitioner made road repairs himself and continues to use
14 the road sporadically for access to his property. It also appears that the owner of Lot 57
occasionally uses the road as well. Much of the road is now somewhat overgrown. (See
I Exhibit D—Photos taken April 20, 2022).
16 15. The County Engineer's Report explains that the Ricky Beach Drive road closure has
17 been handled"informally" for many years. Originally, signage was placed indicating"Road
Closed." At some later date, concrete barriers were installed; however, these have been
18 regularly moved by parties desiring to gain access to the area, presumably by the property
owners.There is also evidence of sporadic use of an off-road vehicle track leading from Linda
19 View Drive down to Ricky Beach Drive. Since Public Works has no desire to prevent
20 property owners from gaining access to their property and since this arrangement has not
caused any significant problems, the County has not taken any action to date. Pending the
1 outcome of this road vacation proceeding, this issue should be formally addressed, possibly
through installation of a locked gate and system to issue gate keys. The County's inability to
22 monitor and control access along Ricky Beach Drive in its current condition and status—i.e.,
23 a closed roadway—is another reason that supports vacating this right of way.
24 16. As provided in WAC 197-11-800(2)(i),road vacation matters are exempt from SEPA
review.
25
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING FY-4NONER
—COUNTY ROAD NO.C504809 FOR JEFFERSON COUNTY
Page 7 of 23
1 17. Staff confirmed that all public notices for the public hearing before the undersigned
2 hearing examiner were provided in accord with applicable law. (Staff Report;Exhibits 6 and
7). Notices in the newspaper and elsewhere expressly provided that this matter requests
3 vacation of public right-of-way. The Examiner is satisfied that proper—and current—notices
were issued, and that new property owners and individuals with current interests in the
4 vicinity of the proposed road vacation were provided an opportunity to comment. Staff did
not simply rely on old notices associated with the previous 2001 road vacation process that
5 was never completed.
6 18. As noted above, only the owners of Lot 57 submitted written comments during the
7 public hearing process opposing the pending road vacation petition, before the hearing, and
again after the hearing. The County Engineer responded to the comments about Lot 57 and
8 concluded that language in easements recently proposed by the petitioner,and recommended
conditions of approval, should be sufficient to appropriately address concerns expressed by
9 the Lot 57 owners. As noted in the County Engineer's 2022 Report, relevant Washington
10 caselaw establishes that a property owner who opposes a street vacation does not have
standing to sue a local jurisdiction vacating a roadway if an alternative mode of ingress/egress
11 serving the affected property is provided, even if such access is less convenient. (See
Hoskins v. Kirkland, 7 Wn. App. 957 (1972), where a property owner who opposed a street
12 vacation did not have standing to sue the City; although a landowner whose land becomes
13 landlocked or whose access is"substantially impaired"is said to sustain a special injury,there
is no special injury if there remains an alternative mode of ingress/egress, "even if less
14 convenient.").
15 19. There is no dispute that 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
16 vacated and continues to be County right-of-way until or unless the Board of County
17 Commissioners chooses to grant any petition to do so.
18 20. And, as noted above, the subject right-of-way (Ricky Beach Road) does not provide
for overall area or neighborhood circulation for the general public,nor is there any anticipated
19 future need for this right-of-way to serve the general public. The road is a dead end, and
Ricky Beach Drive has been closed to vehicular traffic since 1997, due to landslide and
20 geotechnical issues summarized in previous findings and the County Engineer's 2022 Report.
21 21. RCW 36.87.0402 and JCC 12.10.050(2)(e) require the County Engineer to give an
22 opinion as to whether the public will benefit by the vacation; however, neither provide
23 2 RCW 36.87.040,captioned"Engineer's Report",reads as follows: "When directed by the board the county
24 road engineer shall examine any county road or portion thereof proposed to be vacated and abandoned and
report his or her opinion as to whether the county road should be vacated and abandoned,whether the same is
25 in use or has been in use,the condition of the road,whether it will be advisable to preserve it for the county
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING EXAMINER
—COUNTY ROAD NO.C504809 FOR JEFFERSON COUNTY
Page 8 of 23
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)).
3
22. In the absence of any need for a road right-of-way for the benefit of the general public
4 (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
6 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
7 (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
8 could support a finding of public benefit for the vacation of the subject right-of-way.
9 23. The petitioner's prehearing memorandum includes a section offering what it believes
10 to be additional information showing the importance of vacating Ricky Beach Road, which
reads as follows:
11
First,it is important to note that the County closed Ricky Beach Drive in 1997 because of a slide
12 across the road near Lot 30,since repaired by TPP. There have been trespassers using the beach
for parties and drug usage at various times.
13
TPP and the TPHOA are anxious to have this road vacated so they can put a gate across the road
14 to limit access to those with the legal right to use it. This includes the owners of lots in the Plat
and the Cooper-Long family that owns a waterfront parcel adjacent and to the south of Lot 57.
15 Each owner will be given a lock combination or key.
16 Ricky Beach Drive winds through a woody and isolated area,where it is not enjoyable to meet
strangers, especially if you are a vulnerable person. A call for help will probably not be heard.
17 Persons experiencing homelessness have used this beach area earlier this year and there have been
reports of firearm discharges coming from the lower lots that border Ricky Beach Drive.It is also
18 not enjoyable to take children to the beach and bump into drug paraphernalia,used condoms,or
other evidence of inappropriate activity.
19
The road vacation of Ricky Beach Drive will be a significant benefit to all parties. The County,
20 of course,will be relieved of responsibility for a road the public can make no legitimate use of
and which the County has closed in any event,having no desire to maintain it. The County will
21 no longer have any potential liability if someone gets injured on the road,whether from defective
road conditions or dangerous trees lining the road.
22
23
24 road system in the future,whether the public will be benefited by the vacation and abandonment,and all other
facts,matters,and things which will be of importance to the board,and also file his or her cost bill"
25
6 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING ExANINER
—COUNTY ROAD NO.C504809 FOR JEFFERSON COUNTY
Page 9 of 23
All of the lot owners with homes will benefit from a safe, gate-controlled access to the lower
1 beach lot.They will be able to access the beach feeling secure.Depending on the conditions,they
may be able to take a small boat, canoe or kayak to the beach in the back of their car,truck or
2 trailer.The beach will be much more usable and enjoyable.
3 The Cooper-Long family that owns Lot 57 will benefit from the road vacation as well. At the
present time,with the road closed,they have no vehicular access to their lots.Ricky Beach Drive
4 is fairly steep and is a difficult walk for someone who is elderly and carrying things.Now and in
the future they will obviously benefit from vehicle access.Their property will be more usable and
5 enjoyable as well as safer.
6 If this road is vacated and the private easements recorded,the Cooper-Long family will have no
burden of maintenance for the road from their property to Shine Road. Under the proposed
7 easement,that burden rests solely with the lot owners in the Plat. The Cooper-Long family will
have access controlled by a gate and will not have to arrive and find trespassers on their property
8 or discover drug paraphernalia or similar items.
9 Turning now to TPP's departures in position from that stated by the County Engineer in his report,
I begin at Paragraph#5 of the Engineer's Report,where Mr. Reinders believes that TPP should
10 explain its future vision for the vacated road. While this is not a condition of the road vacation,
TPP has previously informed the County that it has no definitive plans for the portion of the
1 1 vacated road that will be allocated to its properties,other than the access as can be made over the
existing road.Development of improved access for vehicles and/or pedestrian traffic would have
12 to be both safe and cost-efficient,and no present analysis has been undertaken to determine if it
could be made so. TPP acknowledges their obligation to obtain permits that may be required by
13 improvements to the road and the County's right to inspect the same.
14 Turning to Paragraph #8, the County Engineer correctly notes that any beach access should be
preserved for the lots within the Plat and that TPP's proposed easement (Exhibit H of County
15 Engineer's Report) does not benefit Lot 57 owned by the Cooper-Long Family. However, the
owner of Lot 57 already has independent beach access through its adjacent waterfront lot (See
16 Exhibit A [attached to prehearing memo]). It was TPP's understanding that the Cooper-Long
Family's sole objection to the road vacation was the potential loss of access to Shine Road
17 (satisfied through the proposed easement at Exhibit I of County Engineer's Report)and that they
were not seeking an easement for beach access as they already had the same through the Cooper-
is Long Family Waterfront Lot.Nonetheless,TPP has no objection to adding Lot 57 as a grantee to
19 the Exhibit I*easement[*appears to be a typo,should read Exhibit H].
20 (See Petitioner's prehearing memorandum, on.pdf pages 3-5)
21 24. As noted elsewhere, the owners of Lot 57 continue to oppose this requested road
vacation. Their post-hearing letter, transmitted to Staff on or about December 28, 2022,
22 repeated general allegations that the petitioner took some actions at some point that appear
to violate applicable County codes, implying concerns with the petitioner's compliance with
23 critical areas and/or shoreline regulations. The 2001 hearing examiner report directed
attention to some of the petitioner's actions taken on his property without necessary permits,
24 and likely in violation of applicable codes and regulations in effect at such time, including
25
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING EXAMINER
—COUNTY ROAD NO.C504909 FOR IEFFER4oN COUNn
Page 10 of 23
without limitation stormwater regulations, shoreline and other state regulations associated
1 with work that impacted beach habitat, and DNR involvement based upon a violation of
2 Forest Practices Act regulations. (Ex. A, 2001 report, Finding No. 11).
3 25. Given unrebutted evidence regarding the petitioner's apparent willingness to overlook
applicable codes and regulations on his property from time to time, the Examiner finds and
4 concludes that any road vacation should be conditioned to reserve access rights along all
sections of vacated right-of-way for County officials for general emergency and public safety
5 purposes, as well as conducting site-visits, inspections, or investigations related to code
6 compliance issues, including without limitation compliance with any conditions of approval
imposed as part of any road vacation approved by the Board of County Commissioners.
7
26. Again, as shown above, the petitioner concedes that "beach access should be
8 preserved for the lots within the Plat." (Petitioner's hearing memorandum, quoted above).
The 2001 hearing record,and the record created as part of this new hearing process,confirms
9 that Ricky Beach Road provides all lot owners within the Termination Point plat with access
I to the beach over what are reportedly"community lots" lots,which Staff believes to be Lots
9, 10, and 19. (County Engineer's 2022 Report, on pages 4-5). So, if Ricky Beach Road is
I I vacated, owners of lots within the plat would have no legal means to access the beach via
community lots unless an easement were granted by the Petitioner. This was the primary
12 reason that the 2001 Hearing Examiner recommended that the Petitioner `perfect a
mechanism, subject to County approval, to assure continued beach access for the benefit of
13 all lots within the Plat of Termination Point... ", noting that Ricky Beach Drive is used "...as
14 a walking access to the beach... ". (See 2001 Recommendation,proposed Condition No. 1,
on page 9, and Conclusion No. 3, on page 7).
I
27. Staff raised the issue that access easements may need to expressly allow for the type
16 of access that lot owners have enjoyed over the last two decades and more,after the road was
17 closed. (County Engineer's 2022 Report, on pages 4-5). Despite the opportunity for various
lot owners to step forward and show how they used the roadway for vehicular access, or
18 something more than just pedestrian access,no one did so. Accordingly,there is insufficient
evidence to mandate `vehicular' access in any `replacement' easements that might be
19 recorded after the road is vacated. The Examiner finds and concludes that the simple term
"access" can include vehicular access. While access would be authorized in the proposed
20 easements, if the petitioner, or any grantee, wishes to improve conditions on the route from
21 those existing today—so that truck,car,or other vehicular access is possible—they must first
comply with all applicable County development regulations.
22
28. The 2022 Report confirms that five parcels abutting Ricky Beach Drive are under
23 separate ownership (Lots 9, 10, 19;Lot 8;Lot 57)and would need some alternative access if
the vacation is approved. Recommended conditions should be sufficient to address this
24 concern.
25
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING EXAMINER
—COUNTY ROAD NO.C504809 FOR JEFFERSON COUNTY
Page 11 of 23
1 29. The updated County Engineer's Report explains that the 2001 Hearing Examiner
2 recognized that a road vacation would potentially landlock the remaining Ricky Beach Drive
parcels owned by Mr. Trask if he were to sell them in the future.No solution to this issue was
3 found during the previous hearing, although lot consolidation was discussed. It is now
generally agreed that these lots are not developable as discussed in the Geotechnical Report
4 completed for the Petitioner by the Stratum Group in 2019. Since these lots are
undevelopable,Public Works now recommends that they be consolidated into a single parcel
5 as discussed in 2001. (County Engineer's 2022 Report, on page S).
6
30. The petitioner's hearing memo emphasizes the apparent value they see in the multiple
7 lots that they own,as they oppose any lot-consolidation condition suggested by Staff because
they want to retain the ability to take advantage of any "transfer of development rights"
8 ("TDR")opportunities that may present themselves at some point in the future—even though
9 current County codes do not allow for such transfers. The TDR argument is not persuasive.
10 31. However, the petitioner raises a more compelling argument against any lot-
consolidation requirement, explaining that individual lots may be purchased by other
11 adjoining lot owners to expand their acreage, and/or to increase their voting rights in the
plat's HOA.
12
13 32. The Examiner agrees that lot consolidation does not need to be a requirement imposed
as part of this road vacation. However,the petitioner and all future lot owners should be fully
14 advised and aware that any future use or activity on any lots within the plat must be in full
compliance with any and all County, State, or Federal regulations, including without
15 limitation those addressing critical areas, like steep slopes; shoreline management; forestry
management; fish and wildlife; building and grading codes; stormwater management; and
16 general environmental stewardship.
17 33. All future applications or reviews associated with development work of any kind on
18 lots within this plat should recognize that, as of this date,the petitioner does not dispute that
"waterfront lots. 9-19, and the nearby lots, 36-41 are considered unbuildable" (Petitioner's
19 hearing memorandum, on page S), and that the County Engineer's 2022 includes the
unrebutted finding that"Lots accessed by the road [Ricky Beach Road] (including Lots 8, 9,
20 10, 19 and Lot 57,not owned by Petitioner or his LLC)are not buildable due to geotechnical
21 concerns with ongoing landslide movement (Geotechnical Report by the Stratum Group,
December 24,2019,commissioned by the Petitioner)." (See 2022 Report, on bottom ofpage
22 3)-
23
24
25
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING ExAmtNER
—COUNTY ROAD NO.C504809 FOR JEFFERSON COUNTY
Page 12 of 23
Review criteria for all road vacation petitions,found in JCC 12.10.110.
I
34. 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
3 the Hearing Examiner are provided in italics below each of the criteria:
4 (1)The proposed road vacation complies with the Jefferson County comprehensive
5 plan and any other applicable plans, policies, or ordinances.
6 County staff from the Public Works and Community Development reviewed the
petition in 2022 after the matter was remanded to the Hearing Examiner for a new
7 Recommendation, and generated reports summarizing the previous road vacation
petition process and recommendation of the County's hearing examiner in 2001,
8 which was never completed. The County Engineer's 2022 Report "does not oppose"
this requested road vacation, provided the Petitioner satisfies several specific
9 conditions. (See County Engineer's 2022 Report, on page 8). The 2022 report
10 appears to rely upon the 2001 report from Community Development staff(Ex. J), to
find that this proposed road vacation will not be inconsistent with the County's
1 1 Comprehensive Plan or development regulations. The Examiner agrees, and further
finds that any subsequent action by property owners (possibly including the
12 petitioner) to develop any portion of the potentially vacated roadway will require
13 compliance with any and all County comprehensive plan policies and/or development
regulations, including possible Shoreline, Critical Areas, and other environmental
14 codes and policies, in effect at the time any complete application for such work might
be submitted.
IS
(2)Roads should not be closed, vacated, or abandoned when land uses or
16 development plans, or occurring patterns, indicate their usefulness for area
17 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
18 vacations should be considered a positive tool toward improving neighborhood
circulation and accesses.
19
The segment of roadway at issue has been closed to vehicular traffic since 1997, is a
20 dead-end, and provides no circulation opportunities in the affected area.
21
The County Engineer's 2022 Report appropriately notes that "there is the question
22 of access to the lots with frontage on Ricky Beach Drive. Lots accessed by the road
(including Lots 8, 9, 10, 19 and Lot 57, not owned by Petitioner or his LLC) are not
23 buildable due to geotechnical concerns with ongoing landslide movement
(Geotechnical Report by the Stratum Group, December 24, 2019, commissioned by
24 the Petitioner). Even so, the right-of-way does provide access to several lots not
25
RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
26 VACATE RICKY BEACH ROAD HEARING ExAMWER
—COUNTY ROAD NO.C504809 FOR JEFFERSON COUM[Y
Page 13 of 23
owned by the Petitioner, including community lots which appear to be intended to
I provide beach access for owners within the Plat of Termination Point(Lots 9, 10, and
2 19)." (County Engineer's 2022 Report, on page 3). Accordingly, the County
Engineer recommends Conditions intended to address this issue by ensuring that lot
3 owners and those who have access rights to these lots can continue to access them.
The Examiner has modified proposed conditions to achieve this objective.
4
The County Engineer's 2022 Report also raises the question of whether future access
will be limited to foot traffic, or whether vehicles will be able to access the road. The
6 Petitioner's representatives have stated a desire to potentially re-establish the road
as a vehicular access point for lot owners within the plat once the road is vacated.
7 This may be possible but would likely require a significant environmental permitting
process (SEPA, Shorelines, Critical Areas, etc). Due to the deep-seated landslide,
8 ongoing maintenance of the road would be required when movement results in the
formation of cracks. The Petitioner has also mentioned kayak launching and
9 recreational beach access for plat owners among other ideas. Given the complexities
I 0 of the site, Staff asked that the Petitioner's representatives explain their 'future
vision"during the Hearing, as it may impact Petitioner's compliance any Conditions
I 1 addressing access to lots owned by others. (2022 Report, on top of page 4).
12 The petitioner's hearing memorandum from counsel, Mr. Miller, addressed the
"vision" issue as follows: "While this is not a condition of the road vacation, TPP
13 has previously informed the County that it has no definitive plans for the portion of
14 the vacated road that will be allocated to its properties, other than the access as can
be made over the existing road. Development of improved access for vehicles and/or
15 pedestrian traffic would have to be both safe and cost-efficient, and no present
analysis has been undertaken to determine if it could be made so. TPP acknowledges
16 their obligation to obtain permits that may be required by improvements to the road
17 and the County's right to inspect the same." (Petitioner's hearing memorandum from
Mr. Miller, on bottom of page 4[pages are not numbered]).
18
(3)The effectiveness of fire, medical, law enforcement, or other emergency services
19 should not be impaired by the closure, vacation, or abandonment of county roads.
Appropriate authorities should be consulted with respect to this policy.
20
21 The general effectiveness of emergency services will not be impaired by this road
vacation. It is a dead-end roadway that has been closed for 25 years and serves no
22 developed property. No opposition to the Notice of Intent to Vacate the subject right-
of-way was received from the Sheriffs office, the fire department, or JeXom911.
23
The petitioner and affected property owners should be mindful that changes in use or
24 development activity on properties along the potentially vacated roadway will require
25
6 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING ExAmmm
—COUNTY ROAD NO.C504909 FOR JEMRSON COUNTY
Page 14 of 23
full compliance with any and all emergency service provider requirements in effect
I at the time of such action.
2 Based on Findings provided above, any road vacation should be conditioned to
3 reserve access rights along all sections of vacated right-of-way for County officials
for general emergency, public safety, and law enforcement purposes, expressly
4 including site-visits, inspections, or investigations related to law (regulatory)
compliance issues, including without limitation compliance with any conditions of
approval imposed as part of any road vacation approved by the Board of County
6 Commissioners.
7 (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
8 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
9 RCW 36.97.140, 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.
11
No opposition from public or private utility companies or providers was received in
1 response to the Notice of Intent to Vacate the subject right-of-way. Staff did not just
rely on the 2001 utility notices, but instead "did the right thing" and issued new
13 notices to local utilities in October and November of 2022. (See Staff Report, dated
14 Dec. 7, 2022, on page 2, listing utilities and agencies receiving notices). Century
Link responded in writing, expressing no objection. Copies of all written comments
15 are included in the record. 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
16 within the vacated area for the placement, construction, repair, and/or maintenance
17 of public utilities and services in such easement area.
18 (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
19 means of satisfying this policy. The Jefferson County parks, recreation, and open
space plan should be used as a guide to determine trail needs.
20
21 Since the road is a dead-end, does not provide public access to water or a beach, and
the fact that there are no Jefferson County Parks located within or currently proposed
22 in the area, the subject right-of-way is not a prime candidate for a public trail or
pathway. Staff'brought the matter up before the County's Parks and Recreation
23 Advisory Board, which passed a motion in the last quarter of 2022, to the effect that
24 they reviewed the pending request for a road vacation and that they had no comments,
25
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING ExAmiNER
—COUNTY ROAD NO.C504809 FOR]EFFERSON COUNTY
Page 15 of 23
as it has no bearing on parks and recreation. (See email message from M. Tyler to
Ms. Kostelec, dated Dec. 6, 2022, included as part of Ex. 4).
2 However, Ricky Beach Road currently provides lot owners within the affected plat
3 with access to the beach over what are described as "community lots" (Lots 9, 10,
and 19, see illustration provided under Finding No. 10, above). This issue is not in
4 dispute.
5 To address the topic, the petitioner provided a draft easement intended to provide
6 continued beach access for all lots within the Plat of Termination Point, included in
the record as Ex. H. Although the draft easement excludes Lot 57, the petitioner's
7 hearing memorandum explains that the petitioner would not object to adding
language in a proposed easement that would provide the Lot 57 owners with the same
8 access rights as other lots in the Plat. (See previous finding no. 23, quoting
Petitioner's statement on the subject). Accordingly, the Examiner has modified
proposed conditions to mandate that petitioner's proposed easement (Ex. H) should
be revised to expressly include all lots within the plat, including Lot 57, providing
each lot owner with the same beach access rights provided to all other owners of lots
1 in the Plat. Proposed Ex.Hshould also be modified to expressly identify and describe
the lot, lots, or portions thereof, through which owners of lots in the plat hold rights
12 to access the beach, Lots 9, 10, and/or 19, as credibly demonstrated by the petitioner
13 using binding legal instruments, subject to review and confirmation by the County's
attorney.
14
15 (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
16 any public authority to acquire the vacated property for port purposes, boat moorage,
17 or launching sites or for park, viewpoint, recreational, educational, or other public
purposes, or unless the property is zoned for industrial purposes.
18
The subject right-of-way, although close to Hood Canal, does not abut the water, so
19 this statutory prohibition does not apply.
20 (7)The proposed vacation will not land lock any parcel of property.
21
The Examiner finds that the easements proposed by the petitioner, Exhibits H and I,
22 are sufficient to ensure that no parcels in the plat will be landlocked if the road is
vacated,provided that Ex. H should be revised to provide the owners of Lot 57 with
23 the same access rights as all other lot owners in the same plat, and addresses other
details explained in the Examiner's recommended Conditions. There is insufficient
24 evidence to mandate `vehicular'access in any 'replacement'easements that might be
25
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING EXAMINER
-COUNTY ROAD NO.C504809 FOR JEFFERSON COUNTY
Page 16 of 23
recorded after the road is vacated. Access is authorized in the proposed easements,
1 and if the petitioner, or any grantee, wishes to improve conditions on the route from
2 those existing today, they must comply with all applicable County development
regulations.
3
Compensation required for Class A and Class B rights-of-way.
4
35. The County Engineer determined that this segment of roadway is a "Class B" right-
of-way. (County Engineer's Report, on page 6,finding no. 12). JCC 12.10.120 requires the
6 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 Board action approving vacation
7 of the subject right-of-way shall not be effective until compensation is provided as described
in the following findings.
8
36. RCW 36.87.120, cited above, is captioned "Appraised value as basis for
9 compensation—Appraisal costs", and reads as follows:
10
"Any ordinance adopted pursuant to this chapter may require that
I I compensation for the vacation of county roads within particular classes shall
ee ual all or a percentage of the appraised value of the vacated road as of the
12 effective date of the vacation. In determining the appropriate compensation
for the road or right-of-way,the board may adjust the appraised value to reflect
13 the value of the transfer of liability or risk,the increased value to the public in
14 property taxes, the avoided costs for management or maintenance, and any
limits on development or future public benefit. Costs of county appraisals of
15 roads pursuant to such ordinances shall be deemed expenses incurred in
vacation proceedings, and shall be paid in the manner provided by RCW
16 36.87.070."
17 37. JCC 12.10.120(1)provides: "Base Payment. The Principal Petitioner shall pay, with
18 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
19 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
20 dedication, e.g.,fee simple interest."
21 38. There is no dispute that the County holds title to Ricky Beach Road through a
22 dedication made at the time the Plat of Termination Point was recorded in 1961, so the
petitioner must pay a sum equal to one-half of the current fair market value of Ricky Beach
23 Drive. (County Engineer's 2022 Report, on page 2, Finding 1, citing Ex. B, 2001 Petition;
24 JCC 12.10.120(1).
25
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING EXAMINER
—COUNTY ROAD NO.C5048M FOR JEFFERSON COUNTY
Page 17 of 23
39. The Examiner finds and concludes that language in current County codes should be
read in a manner that is consistent with state statutes that empower counties to review and
approve requests to vacate public right-of-way, particularly RCW 36.87.120, which allows
- the Board to require that compensation for the vacation of a county road within particular
3 classes to equal all or a percentage of the appraised value of the vacated road as of the
effective date of the vacation — instead of the "date of the petition" language found in JCC
4 12.10.120(1), quoted above.
5 40. This is a significant issue for this pending road vacation petition, which may have
6 been filed at some point in 2001, but was remanded to the Hearing Examiner in 2022, and
subject to a completely new public notice and hearing process.
7
41 . As noted above,the vacated Ricky Beach Drive area would be approximately 99,000
K sq.ft.(60 x 1,650),which is 2.27 acres(Acre size is 43,560 sq.ft.;99,000/43,560=2.27). The
twenty-two-year-old compensation lgure assigned to the right-of-way ($4,951.25, as 50%
of its assessed land value) is not credible and runs counter to known increases in property
10 values throughout the region in the last two decades. Further, current assessed values of
numerous parcels and lots abutting Ricky Beach Drive show valuations worth $10,000,
11 $14,000,and up to$70,000 per acre. (See Jefferson County Assessor parcel values, available
for parcels in the plat on the Assessor's online portal). Any action by the Board should
12 update the compensation required for this right of way to reflect values as of the date that any
road vacation ordinance or resolution might be adopted, something that is likely to be at least
13 50% of$22,270.00 (2.27 acres x $10,000 per acre), with credit for any payments already
14 received. (See JCC 12.10.120(3) Valuation Procedure, requiring the principal petitioner to
provide a fair market appraisal for Class A or Class B right-of-way from an appraiser
15 licensed by the state of Washington, explaining that Jefferson County shall have the right to
review, accept or reject any appraisal and may do so with an internal report or an appraisal
16 provided by a private state-licensed appraiser).
17 42. Commissioners are well aware of the Washington Constitution's prohibition on
18 making a gift of public funds or property. (See WA Constitution, Article 8, Sec. 7, which
expressly provides that: "No county, city, town or other municipal corporation shall
19 hereafter give an money, or pMper or loan its money, or credit to or in aid of any
individual, association, company or corporation, except for the necessary support of the poor
20 and infirm, or become directly or indirectly the owner of any stock in or bonds of any
21 association, company or corporation." (emphasis added)).
22 43. Any road vacation should require payment for an amount representing 50% of the
appraised value of the vacated road as of the effective date of the vacation—not at some point
23 over 20-years ago.
24
25
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING EXA?AIVER
—COUNTY ROAD NO.C504809 FOR JEFFERSON COUNTY
Page 18 of 23
44. JCC 12.10.120(2), imposes an "Additional Payment" requirement with respect to
1 vacation of a Class B road or right-of-way, reading in relevant part as follows:
2 "With respect to vacation of a Class B road or rights-of-way,and in addition to the base
3 payment described above, the principal petitioner(s) shall pay to the county an amount
equal to the amount of public expenditures made in improvement or maintenance of the
4 road or rights-of-way(or a portion of any road or rights-of-way)that is the subject of the
proposed vacation,and all other administrative costs incurred by the county in vacating
5 the road. To the extent the county can not,because of missing,destroyed or incomplete
records,determine the precise amount expended for the improvement or maintenance of
6 a road or rights-of-way(or a portion of that road or rights-of-way)that is the subject of a
proposed vacation,then the county shall be entitled to compensation equal to the amount
7 spent on"improvement and maintenance"of that road or rights-of-way between January
1, 1994,and the date of the petition."
8
45. The County Engineer's 2022 Report credibly explains why any"Additional Payment"
9 amount for public expenditures made to improve or maintain Ricky Beach Drive should be
waived,mostly because the road has been closed since 1997 and no public monies were used
10 on the road since that time. (2022 Report, on page 6, item 12).
11 46. Because Ricky Beach Drive is a Class B roadway, there is no dispute that the
12 Petitioner must pay all administrative costs incurred by the County in connection with this
road vacation petition. Such payment is required whether or not the vacation is ultimately
13 approved. These administrative costs would include, without limitation, the 2022 and 2023
costs associated with preparing for and conducting a hearing with the Hearing Examiner,
14 preparation and issuance of the Hearing Examiner's report, reviewing documents submitted
15 by the Petitioner, document recording fees, possible appraisal fees, and other associated
expenses incurred by the County.
16
47. Based on credible evidence in this record, particularly unrebutted evidence showing
17 that ongoing ownership of the road right-of-way is of no benefit to the general public,because
it comes with risks and management/maintenance oversight costs—or if none are incurred,
18 and inaction is the result, perceived neglect might reduce public confidence and trust in how
19 the County manages its portfolio of properties and rights-of-way—the Examiner finds that
this road vacation should move forward, subject to updated conditions of approval, that
20 ensure proper compensation is made, and that affected property owners continue to have
access of the sort they have before any road vacation,which in this case, is minimal.
21
48. The County Engineer's 2022 Report includes a section addressing "Alternatives to
22 Road Vacation." For reasons explained above, the Examiner finds that vacation is probably
23 the best result for the County and would be in the public interest, provided the petitioner
satisfies all of the conditions of approval provided in this Recommendation. If the Board
24 exercises its discretion to deny the requested road vacation, then the alternatives raised by
Staff should be addressed without delay.
25
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING EXAMINER
—COUNTY ROAD NO.C504809 FOR JEFFERSON COUNT'
Page 19 of 23
1 49. Based on consideration of all evidence in the record, subject to the recommended
2 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
3 granted by the Board of County Commissioners.
4 V. CONCLUSIONS OF LAW.
5 1. The Hearing Examiner has jurisdiction and responsibility to consider issues presented
6 in this petition and issue this detailed report and recommendation to the Board of County
Commissioners.
7
2. Based on findings provided above,the pending request to vacate Ricky Beach Drive
K as described in the County Engineer's Report satisfies all review criteria provided in JCC
12.10.110, subject to the recommended conditions included in this document.
10 3. The proposed conditions of approval included as part of this Recommendation are
supported by a preponderance of evidence in the record, consistent with applicable law, and
I 1 in the public interest.
12 4. There appears to be some difference of opinion as to the discretion held by the
13 Jefferson County Board of Commissioners in deciding whether to grant, deny, or condition
the pending petition for a road vacation. The memorandum submitted by the petitioner's
14 counsel appears to argue that the petition must be approved, because the petitioner claims
that all conditions recommended by a previous hearing examiner more than 20 years ago
15 have finally been satisfied. The County Engineer disagrees. County staff is correct.
16 5. Petitioner's argument is not supported by applicable caselaw, including 118 years of
17 unbroken precedent established by the Washington Supreme Court that a local government
decision as to whether a road should be vacated is a legislative action — meaning that the
18 Board of Commissioners holds broad discretion on the subject, and they are not bound or
required to follow a recommendation from any hearing examiner, planning commission, or
19 other entity that does not hold the express powers to determine whether a right-of-way should
be vacated.
20
21 6. It has long been the rule in Washington state that road vacation3 actions are a
"legislative matter". See Kakeldy v. Columbia & P.S.R. Co., 37 Wash. 675 (1905), ("The
22 question whether the street should be vacated or not was one for legislative decision, resting
with the city council, and, unless that discretion was abused, the courts will not interfere."),
23 affirmed by Hoskins v. Kirkland, 7 Wn.App. 937 (1972). "The legislature has power to
24 'County codes use the term"road vacation",but the terms"street vacation"and"right-of-way vacation"mean
the same thing for purposes of this Recommendation.
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING EXAMINER
—COUNTY ROAD NO.C504809 FOR JEFFERSON COUNTY
Page 20 of 23
vacate streets, and may delegate such power to the municipal corporations of the state. Such
1 delegation has been made by chapter 84, Laws 1901 [predecessor of current road vacation
2 statutes]. Such power having been so delegated, the exercise thereof rests within
the discretion of the municipal authorities,and being a political function,will not be reviewed
3 by the courts except upon a clear showing of collusion or fraud." Ponischil v. Hoquiam Sash
&Door Co.,41 Wash. 303, 83 P. 316(1906).
4
7. "There can be no question [that],under our decisions,the power of vacation of streets
5 and alleys or portions thereof belongs to the municipal authorities, and the exercise of that
6 power is a political function which, in the absence of collusion,fraud, or the interference
with a vested right, will not be reviewed by the court..." (See Washington Supreme Court
7 holding in Capitol Hill Methodist Church v. Seattle, 52 Wn.2d 359, 324 P.2d 1113 (1958),
citing history of previous Supreme Court decisions addressing the same topic,
8 including Ponischil v. Hoquiam Sash etc. Co., 41 Wash. 303, 83 Pac. 316;Freeman v.
Centralia, 67 Wash. 142, 120 Pac. 886; and Taft v. Washington Mutual Savings Bank, 127
9 Wash. 503, 221 Pac. 604." (italics/emphasis used by the Washington Supreme Court)).
10
8. Washington Courts have also addressed challenges to road vacations where the
11 legislative body (a city council, board of county commissioners, and the like), received a
recommendation from another entity, and disagreed with such recommendation, upholding
12 the power of the legislative body to do so. In Hoskins v. Kirkland, 7 Wn.App.957, 503 P.2d
1117 (1972),the plaintiff challenged the Kirkland City Council's decision to vacate a public
13 street, partly based on concerns that the legislative body [the City Council] ignored a
14 recommendation against the street vacation from the Kirkland City Planning Commission.
The Hoskins decision includes the following discussion, which is instructive in this matter:
15
"The [planningl commission's recommendation represents a difference of opinion
16 concerning the competing values involved between the planning commission and the
Kirkland City Council.However,the power to vacate the street is vested in the Kirkland
17 City Council and not in the commission.RCW 35.79.030[statute addressing City powers
to vacate public right-of-wayl. [NOTE: the companion road vacation statutes applicable
18 to Counties are found in Chapter 36.87 RCW]. Necessarily.the City Council,in the good
faith discharge of its legislative responsibilities,is free to evaluate the force and effect of
19 the commission's reasons and to disagree with the commission's recommendation. Such
disagreement alone does not amount to bad faith, arbitrary or fraudulent action, the
20 existence of which would overcome the presumption of validity and negate an express
fording of public use or benefit. See Kakeldy v. Columbia&Puget Sound R R., 37 Wash.
21 675,80 P. 205 (1905);Banchero v. City Council, supra." (Hoskins v. Kirkland, 7 Wn.
App.957,503 P.2d 1117(1972)).
22
9. In accord with controlling legal authority, including the Hoskins case cited above,the
23 Jefferson County Board of Commissioners, in the good faith discharge of its legislative
24 responsibilities, is free to evaluate the force and effect of any hearing examiner's reasons for
25
2 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HFAMG ExnnoNER
—COUNTY ROAD NO.C504809 FOR jUnRSON COUNTY
Page 21 of 23
recommending denial, approval, or approval with conditions, of any petition for a road
I vacation, and to disagree with any hearing examiner recommendation.
2 10. Any legal conclusions or other statements made in previous or following sections of
3 this document that are deemed conclusions of law are hereby adopted as such and are
incorporated herein by this reference.
4
VI. RECOMMENDATION.
5
6 Based upon all evidence in the record, and all findings and conclusions provided
above, the Hearing Examiner respectfully recommends that the Board of County
7 Commissioners should formally vacate Ricky Beach Drive, County Road No. 504809,
subject to Conditions of Approval set forth below:
8
A. Beach Access Rights. Provide a mechanism, possibly in the form of one or more
9 easements, for alternative access for all owners of all lots within the Plat of
10 Termination Point—including without limitation Lot 57—to access community beach
lots (Lots 9, 10, and/or 19), with appropriate language expressly identifying and
1 1 describing the lot, lots, or portions thereof, through which owners of lots in the plat
hold rights to access the beach, as credibly demonstrated by the petitioner using
12 binding legal instruments, subject to review and confirmation by the County's
attorney. The petitioner's draft easement for beach access, included in the record as
13 Exhibit H, is currently inadequate, and would require revisions to comply with this
14 condition;
15 B. Shine Road Access Rights. Provide a mechanism, possibly in the form of one or
more easements, providing access to and from Shine Road, benefitting all lots within
16 the Plat of Termination Point, and any other lot or lots that currently rely upon Ricky
17 Beach Road for access to Shine Road — including without limitation Parcel Nos.
721022004 and 721022002, and Lot 8. This condition requires reference to all lots
18 and parcels as they exist on the date any road vacation is approved, whether under
common ownership by the petitioner or others,regardless of whether a lot may obtain
19 access via some other route or through another lot under common ownership. Such
document(s) shall be subject to review and approval as to form and compliance with
20 this condition to the satisfaction of the County's attorney. The petitioner's draft
21 easement for road access, included in the record as Exhibit I, is currently inadequate,
as it only addresses Lot 57, and tax parcel 721022002;
22
C. The mechanisms or easements required by the two previous conditions A and B,
23 may be accomplished using one legal instrument, subject to review and approval as
to form and compliance with these conditions to the satisfaction of the County's
24 attorney.
25
26 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING Ex mmlt
—COUNTY ROAD NO.C504909 FOR IMUMON COUNTY
Page 22 of 23
D. Record a Restrictive Covenant, easement, or other binding legal instrument,
I granting access to County officials along the vacated right-of-way for general
2 emergency, public safety, and law enforcement purposes, expressly including site-
visits, inspections, or investigations related to legal (regulatory) compliance issues,
3 including without limitation compliance with any conditions of approval imposed as
part of any road vacation approved by the Board of County Commissioners. Such
4 document shall be subject to review and approval as to form and compliance with this
5 condition to the satisfaction of the County's attorney; and
6 E. Pay all required compensation owed to the County for the vacated right-of-way
and administrative process.
7
8 ISSUED this 7t' Day of March, 2023
10
I I Gary N. McLean
Hearing Examiner
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2 6 RECOMMENDATION TO APPROVE PETITION TO GARY N.MCLEAN
VACATE RICKY BEACH ROAD HEARING EXAMINER
—COUNTY ROAD NO.C504809 FOR JUITERSON COUNTY
Page 23 of 23