HomeMy WebLinkAboutExhibit254
Appellate Hearing Examiner: Phil A. Olbrechts
Hearing Date: December 6, 2007
Hearing Time: 10:00 a.m.
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BEFORE THE JEFFERSON COUNTY APPELLATE HEARING EXAMINER
9 LEWIS 1. HALE, GREGG D. JORDSHAUGEN, )
LESLIE A. POWERS, and LUDLOW )
10 MAINTENANCE COMMISSION, a Washington)
nonprofit corporation, )
)
)
v. )
13 JEFFERSON COUNTY, a political subdivision j
14 of the State of Washington, and PORT LUDLOW)
ASSOCIATES LLC, a Washington limited )
liability company,
15 )
)
)
)
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Appellants,
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Respondents.
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File Nos. MLA05-00407,
ZON03-00044, SDP05-00019, and
SUB05-00030
PLA'S POST-HEARING
CLOSING MEMORANDUM
I.
INTRODUCTION
This closing memorandum is offered by Port Ludlow Associates LLC ("PLA") following
20 the December 6, 2007, appellate argument before the Appellate Hearing Examiner.
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II.
DISCUSSION
The Decision Is Consistent with Shoreline Setback Requirements.
. A.
The Decision correctly applies applicable shoreline setback regulations. First, the
24 Hearing Examiner required as conditions of approval that PLA comply with all applicable
25 shoreline setback regulations, including (1) the 15-foot setback from the OHWM required for all
26 development in the Urban Environment under Section 4.105 of the Jefferson County Shoreline
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PLA'S CLOSING MEMORANDUM - 1
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MasterProgram (Decision Condition 8.d at 33), (2) a restriction that no fence, wall, hedge, or
2 barrier greater than 42 inches be placed or enlarged nearer to the OHWM than the building
3 setback line (Decision Condition 8.f at 34), and (3) compliance with the 30-foot setback from the
4 OHWM required for residential and accessory structures under Section 5.160 of the Jefferson
5 County Shoreline Master Program (Decision Conditions 10.a and 10.b at 34).
6 Second, the Hearing Examiner did not make - nor was he asked to make - a decision
7 whether or not shoreline setback requirements apply to the artificial lagoon or pond within the
8 Plat of Ludlow Bay Village. PLA has taken the position that they do not apply (for the reasons
9 set forth in PLA's brief and below), some of the Appellants have taken the position that they do
10 apply (for the reasons set forth in the Appellants' briefs), but the Hearing Examiner was not
11 asked to decide the matter and the Decision does not address it. The Decision therefore is not in
12 error regarding the application of shoreline setback regulations to the artificial lagoon or pond.
13 Third, even if the Hearing Examiner resolved or should have resolved the question
14 whether the shoreline setback regulations apply to the artificial lagoon or pond, these regulations
15 clearly do not apply. The shoreline setback regulations apply only to bodies of water that
16 constitute either shorelines, shorelines of statewide significance, or wetlands under the Shoreline
17 Management Act, RCW Chapter 90.58. The regulations apply to some artificial impoundments,
18 but they do not apply to artificial impoundments that are neither shorelines, shorelines of
19 statewide significance, nor wetlands. For example, they do not apply to mud puddles and
20 swimming pools that happen to be located within shorelands.
21 The lagoon is not a shoreline, shoreline of statewide significance, or wetland. It was
22 artificially created. Its surface level is artificially maintained by the use of two electric pumps
23 running continuously. It has no established OHWM. It is not part of Ludlow Bay. It has no
24 natural connection to Ludlow Bay. The only connections between the lagoon and Ludlow Bay
25 are two inlet pipes (by which the two pumps diaw water from the bay) and one outlet pipe (by
26 which water is released from the lagoon back to the bay). The outlet pipe "invert" is located
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PLA'S CLOSING MEMORANDUM - 2
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1 above the elevation of OHWM on the adjacent Ludlow Bay. See GeoEngineers Report: Plat of
2 Ludlow Bay Village Mill Pond Assessment dated September 20,2004 (Log Item 6.229) at 5.
3 "Without the circulation system the water levels would drop to an unknown level where
4 stormwater runoff from the surrounding basin and high tides above the outfall invert would be
5 the primary inputs of water into the pond. . .. The combination of loss of water and significant
6 reductions in water quality would result in a loss of all marine life currently existing in the
7 pond." Id at 5.
8 The lagoon also is exempt from regulation as a "shoreline" because it does not meet the
9 definition of a lake under WAC 173-20-030 (it is a "surface water area" but it is less than 20
10 acres in size) and it is not identified as a "lake" on the Jefferson County inventory of "lakes"
11 found at WAC 173-20-340.
12 If the shoreline setback applies to the lagoon, then PLA would be required to provide a
13 30 foot setback from the OHWM.\ However, because no OHWM has ever been established
14 within the lagoon (Log Item 6.229 at 5), there is no evidence in the record that would allow the
15 Appellate Hearing Examiner to conclude that PLA's applications violate the shoreline setback
16 requirements.
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The Project Complies with Applicable Front Yard Setback Requirements,
but if the Examiner Determines Otherwise then the Decision Should Be
Modified to Require Only Stacked Flats and No Town Homes Along Heron
Road.
PLA acknowledges that the MPR Code is imperfect, as are all land use regulations, and
B.
that it contains some ambiguities. It is possible to conclude that an attached town home is a
"single-family attached" use subject to single-family development standards (e.g., 20' front yard
setback required) based on Section 3.103 of the MPR Code, which provides that "For purposes
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\ Under Section 5.160, the 30-foot residential setback is measured from the bank's edge when the bank's height
26 exceeds 10 feet, but otherwise is measured from the OHWM. In this case, the lagoon's bank is 5 to 6 feet in height.
See GeoEngineers Report (Log Item 6.229) at Attachment E. Therefore, any applicable setback would be measured
27 from the OHWM, rather than from the bank's edge.
PLA'S CLOSING MEMORANDUM - 3
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