HomeMy WebLinkAboutExhibit255
To: Appellate Hearing Examiner: Phil A Olbrechts
LES POWER'S REBUTTAL AND CLOSING ARGUMENT
TO APPLICANTS AND JEFFERSON COUNTY STAFF
ARGUMENTS AND FINAL RESPONSE
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RE: Jefferson County Appellate Hearing on File Nos. MLA05-00407,
ZON03-00044, SDP05-00019, and SUB05-00030
Hearing Date Dec. 6, 200710:00AM
I. The Resort
A. DCD Itself Believed that the Resort Is Mandatorv. Mr. Scalf admitted that
there were discussions among staff in 1998 that the existing resort did not justify the
residential buildout outside the resort zone. That is consistent with the Memo of August
25, 1998 to the BoCC. That memo was sent on or after the identification of Port Ludlow
as a MPR in the Comprehensive Plan. Mr. Scalfs recollections that it was sent before
the Comprehensive Plan adoption is incorrect. After the memo was sent and clearly in
connection with the original MPR Code Ordinance 10-1214-98 to which it was attached,
the ordinance was withdrawn and a new ordinance in the form ofthe MPR Code,
Ordinance 08-1004-99. It contains the robust resort plan. It also recites consistency with
the Comprehensive Plan and the GMA. The MPR Code was adopted by action of the
BoCC. It is clear that the BoCC believed that there was a relationship between the robust
resort plan and its consent to develop 460 residential units. The August 25, 1998
memorandum did not predate the Comprehensive Plan and could not have been
considered in connection with the approval thereof, including LNG 25.
B. The Residential Buildout is Conditioned on the Resort. The Development
Agreement, also adopted by and reflecting the views of the BoCC further confirms the
nexus between the resort expansion and the residential buildout. The recitals refer to the
existing resort as a "small resort". There are further references in the recitals to the
residential buildout in the context of the resort development. The Development
Agreement included the resort plan. It adopted as an exhibit the MPR Code that so
included it. The flexibility objectives, Sec. 3.11 of the Development Agreement, indicate
the perameters under which the MPR components could be modified. They take into
consideration general demographic and economic considerations. They do not take into
consideration the economic situation of the specific developer. They contain language
that searches for equivalence when changes are made. Equivalence certainly can't be
seen by eliminating the resort expansion without eliminating all or part of the residential
expansion or substituting other improvements consistent with a resort. This is consistent
with RCW 36.70A.362 which in different language requires that the residential
development that is permitted in an MPR be consistent with its recreational purpose. One
need only ask how Olympic Terrace II is consistent with any recreational purpose of the
resort. The Court clearly found that it was not and not required to be. Yet, the
Comprehensive Plan, LNG 25 and RCW 36.70A.362 both contain such language. They
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are both adopted by reference in the Development Agreement, by the BoCC. How then
can the resort be seen discretionary.
C. The Resort is Not Discretionary. The proposition, continually articulated
by the Applicant and DCD, that the actual development is discretionary is sheer
nonsense. To change the resort plan under the MPR Code, it must be amended. The
amendment process is called a "resort plan revision", either a major or minor resort plan
revision. See MPR Code Sec. 3.905. It requires approval either by DCD as a Type A
Land Use Decision or by the Hearing Examiner as a Type B Land Use Decision.l
Further, since the "resort plan" is a part ofthe Development Agreement because it is
adopted by reference, it cannot be changed without an amendment under the procedures
applicable to amending the Development Agreement. The resort plan, like any other
provision of the Development Agreement, may be modified, but only by amendment.
The amendment process is subject to the purpose screen provided by the Flexibility
Objectives. The Development Agreement permits phasing over twenty (20) years; it
does not permit no development at all over twenty (20) years. This was the underlying
issue in Olympic Terrace II, that is whether the resort could be deferred to the final phase
and then lost in the shuffle?
Neither the Applicant nor DCD offered any serious arguments that the result of
the "major revision" was to convert a resort expansion provided in the resort plan under
the MPR Code and the Development Agreement into residential housing. The Applicant
advanced the argument that it was permitted under MPR Code Sec. 3.903 to develop
either a resort or residential development on the LBV Plat and that it chose the latter.
This argument is specious and an obvious misreading ofMPR Code Sec. 3.903. That
provision and its analog in the Development Agreement at Sec. 3.15.2 condition the
resort as described in the resort plan upon the approval ofa modification of the LBV Plat
through the plat alteration procedure set forth in RCW 58.17.215.3 That process protects
I See MPR Code Sec. 3.907(2), 3.906(2), LUPO Sections 6 and 19. In each case, there is a procedure
which is itself subject to administrative and judicial appeal. The presence of such a procedure belies the
notion that an amendment to the plan is discretionary, apparently to the Applicant, and is not subject to
review, or that the plan itself merely represents the maximum which need not be developed by the
Applicant. Were that the case, we would not have had any of the hearings on this matter.
2 The issue of res judicata or its counterpart collateral estoppel, which the Applicant did not urge in oral
argument simply do not apply because the subject matter of Olympic Terrace II is the approval of an eighty
lot subdivision under that name and not the amendment of the resort plan and because the legal issue
involved in Olympic Terrace II was whether the Applicant was piecemealing the development for SEPA
purposes rather than the issue here whether the Applicant is legally obligated to develop a resort expansion
and whether it is pennitted to substitute residential development for the resort plan.
3 The Development Agreement at Sec. 3.15 recognizes the rights in of owners of interests in the LBV Plat
and at Sec. 3.15.2 requires Jefferson County to recognize those rights as factors in any amendment that
affects those rights. MPR Code Sec. 3.903 requires existing, pending or vesting development rights owned
by the Applicant that conflict with the resort plan to be withdrawn. The language is "shall be withdrawn,
vacated or otherwise permanently released." The word "shall" is mandatory. See MPR Code Sec. 1.30(4).
The next sentence separately recognizes that where a plat is partially developed there may be owners of
interests therein with rights. In that case, a plat alteration shall be applied for and processed as set forth in
state law and in applicable county variances." The next sentence clarifies that the preceding sentence is
procedural and does not detennine the outcome of the process. The Applicant's preferred reading that the
second sentence refers to the applicant's rights and gives the Applicant the right either to develop the resort
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"owners of interests" in the partially developed plat, not the Applicant who is required to
obtain the consent of those owners. It is procedural. Procedure as to plat alterations only
applies if the alterations are not exempt under RCW 58.17.040(6). This reading is
consistent with the Development Agreement which specifically refers to the procedure
and conditions of RCW 58.17.215 without regard to the nonexempt or exempt status of
the "alteration". In short, the alternative reading urged by the Applicant strains the
language and the purpose of Development Agreement Sec. 3.15 and MPR Code Sec.
3.903 and must be rejected.
The Applicant urges weakly that either the resort described in the 1993 EIS which
is depicted in Chapter I of the FSEIS, somehow meets the conditions of a master planned
resort for purposes of justifying the four hundred sixty (460) additional residential units
approved under the Development Agreement. This conflates the classification of Port
Ludlow in the Comprehensive Plan at LNG 25 with the requirements for modification of
that plan to justify the additional three hundred eighty (380) residential units allowed the
Applicant outside the resort zone. This is clear from the language of Mr. Scalfs memo to
the BoCC on August 25, 1998, in which he states:
Staff presents three options to the BoCC for its consideration of this issue:
1. The Master Planned Resort designation could be severed from the larger
community and limited to the actual resort facility and immediate area, which
includes some residential uses, and should also include the golf course. The
"community" portion of Port Ludlow would not constitute part of the MPR, and
be treated similar to Kala Point and Cape George. The commercial area could
then be designated for uses allowed in a Rural Village Center. This option would
delay the plan because of the need for public review and the change to the FEIS ,
and thus is not the preferred option.
2. Adopt the designated MPR boundary and limit the range of commercial
uses within the Village Commercial Center consistent with the RCW language
that "...an existing resort may include other permanent residential uses,
conference facilities, and commercial activities supporting the resort, but only if
these other uses are integrated into and consistent with the onsite recreational
nature of the resort." RCW 36.70A.362 [emphasis added]. If this option is
selected, staff recommends changing the commercial area designation from
Village Commercial Center to Resort Commercial Center.
3. Adopt the designated MPR boundary as an interim boundary to keep the
County's options open, similar to commercial areas, Glen Cove, and the Mill.
plan or residential housing is simply not supported by its language that clearly protects the rights of persons
who are owners of interests other than those owned by the Applicant in a partially developed plat.
Otherwise, the BoCC would simply have couched the first sentence in the alternative and provided that the
resort plan is elective. Further, the reference to "process" and "alteration" would not even be applicable to
the Applicant; this language triggers the protections of "owners of interests" in partially developed plats
whose prior approval is required for the Applicant to submit an application for a plat alteration.
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Consider the two options above through the Planning Commission public process,
in a time line that allows for staff research and development of options, Include
policies in the Land Use and Rural element to resolve this issue consistent with
the RCW, as well as the extent to which "urban" development can occur, and the
extent that "urban"development can be allowed under the statute. Based on the
discussion with CTED over the implementing regulations, staff has questions
whether the entire Port Ludlow community should be included under the MPR
designation, or whether the [sic] it is, in fact, no different from Kala Point or Cape
George, except for the nearby resort complex. The Interim Controls ordinance
will limit uses and standards by a revision of the staff draft of Section 18.
Planning staff prefers option #3.
Responding to the memo, the BoCC revoked and remanded the original MPR Code,
Ordinance 10-1214-98 for the addition of a "resort plan" which then appeared in the
MPR Code, Ordinance 08-1004-99.
The undersigned urges that this language contains no ambiguity. It concludes that
the existing resort does not justify residential development outside the resort zone, a
result that conflicted Pope Resources and now the Applicant's economic goals. The
language is consistent with the description of the existing resort as a "small resort" in
Development Agreement, Sec. 1.3.12. The addition of the robust resort plan answered
this language. So seen, the resort plan or some reasonable alternative that actually
expands visitor accommodations, the core purpose served by a master planned resort,
must be implemented to preserve the right of the Applicant to develop residential units
outside the resort zone itself.
While it may be the case that the Applicant is continuing the existing resort, that
is the Inn at Port Ludlow with this thirty seven (37) rooms, the Harbormaster Restaurant
at half of its current size, the marina with sixty four (64) additional permanent moorage
slips, a small retail section and boardwalk provided under the 1999 resort plan, and the
golf course, it is equally the case that the Applicant is not expanding the visitor resort
facility, is not trying to attract new resort business from convention business, is not
providing additional visitor moorage accommodations, and is not substituting any new
resort facilities over those promised either in 1993 or 1999. The expansion of the trails
does no more than provide nonconforming, non ADA compliant pedestrian ingress and
egress to the new residential buildout. Neither does the gathering area for boaters
provide more than is already there. There is a gathering place for boaters to the west of
the marina store. It will be removed under the proposed plan. Moreover, the proposed
gathering place is located contiguous to the lagoon in an area that must be dedicated to
native vegetation, bird loafing and must exclude human intrusion under SSDP 91-017.
Apparently, the Applicant forgets about tqis continuing legal condition and does nothing
to mitigate it.
Parsed, the proposed amendment must be seen for what it is, a substitution of
residential use for resort use, and within the context of the requirements of a master
planned resort an open violation of its terms and a fraud on those that adopted same as a
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condition to continuing residential development. As properly noted by DCD Staff, a
master planned resort does not permit residential development that does not support the
recreational function and the existing small resort justifies no residential development
outside the resort zone. The proposed plan directly conflicts these conclusions and
requires Jefferson County to approve another Kala Point or Cape George, developments
that can no longer pass muster under the Comprehensive Plan or Growth Management
Act for lack of public economic and other infrastructure. The Applicant's and DCD's
invitation to permit such "sprawl" must be rejected.
D. Zoning. The MPR Code is a zoning code and an amendment to the
Zoning Ordinance. 4 It conditions the use of land and the construction of new
improvements or the modification of old improvements with the uses permitted in the
applicable zoning district. The resort plan describes improvements to be developed in the
"Resort Complex/Community Facilities Zone (MPR-RC/CF), herein (the "Resort
Zone,,).5 The Resort Zone "provides amenities and services associated with a resort and
the surrounding community, and supports existing residential uses." 6 It recognizes
certain nonresort uses "which currently exist within the RC/CF zone" and permits their
continuance or right to expand, or change in accordance with the provisions of this
ordinance. It explains that these are non-resort uses that are "not regulated by the
provisions for the Resort Plan as set forth in section 3.90.7 The RC/CF Chart which
allows multifamily and single family residential use to a density often units per acre
must be understood within the context of this limitation.
The Resort Plan clarifies the non resort use. It does so by including specifically
and only the townhomes developed to the date of the ordinance, in other words, the first
thirteen (13) townhomes. 8 The remainder of the facilities were not built. There can be
no argument that they are currently allowed under the existing LBV Plat. Otherwise,
why would a boundary line adjustment be proposed. The forty two (42) condominium
apartments constitute a new use that is not a resort use. To provide for a new use that is
not a resort use, the Resort Zone must be rezoned. Rezoning is not a "major revision". It
must be accomplished through Comprehensive Plan amendment procedures.9
Accordingly, it cannot be accomplished by an appeal to a hearing examiner. IO It
implicates a decision process that is subject to appeal to and review by the Western
Washington Growth Management Hearing Board.
4 See MPR Code Sec. 2.20 which proscribes the construction or alteration of structures that conflict with
"the uses listed in the following chapters as permitted in the zoning district i which the structure..is
located."
5 MPR Code Sec. 3.901 and 3.40.
6 MPR Code Sec. 3.401.
7 MPR Code Sec. 3.403.
8 MPR Code Sec. 3.901, Resort Plan, No. 16.
9 MPR Code Sec. 3.905(1).
10 See discussion in the undersigned's motion for reconsideration of Mr. Berteig's decision, Log Ex. 225,
pp.5-7.
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II. The Roadwav Setback and Classification of the Residential Units. The
nonstacked condominiums and townhomes in the LBV Plat are not "Multifamily" as the
Applicant and Jefferson County contend. Mr. Scalf in testimony would have the
Appellate Hearing Examiner believe that the designation of structure 700 as "single
family" and that a condition to the building permit is a twenty (20) foot roadway setback,
applicable in the MPR Code to single family structures is a mistake and that the
conceptual site plan indicates that there is no roadway setback. This proposition is false
in both respects. The conceptual site plan for structure 700 and the building permit, both
exhibits to Log Ex. 144, are consistent. The conceptual site plan as provided to the
undersigned in response to his criticism of DC D's failure to enforce the setback in an
open hearing respecting the SEIS for the major revision as support for his proposition that
DCD's building inspectors allowed the eighteen (18") setback on the basis of a
preexisting binding site plan and accordingly did not err. However, an examination of
the conceptual site plan reveals that it provides for a twenty (20) foot roadway setback for
structure 700. Rather than describe garages and living space over the setback, it
describes driveways, identified as "DWY" in the plan. Moreover, it is impossible to
consider that there was a mistake by staff on the building permit. The signature that
approved the building permit with the conditions was that of Mr. Scalf, the witness and
the then and now Director of the Department of Community Development.
The Applicant was no more confused that townhomes in the LBV Plat are
multifamily. It submitted the conceptual site plan at the time or before it submitted an
application for a building permit, that is sometime around 2002. As noted, the conceptual
site plan that it submitted described driveways where there are now garages and living
quarters. Driveways are a use consistent with the twenty (20) foot roadway setback;
garages and living quarters are not. The building permit issued. The Applicant did not
appeal the building permit. It became final. Had there been an error in the condition, the
Applicant's proper course of action, a course of which it was fully aware, was to appeal
the condition. The fact that it did not and the building permit issued with the condition
that there be a twenty (20) foot setback is additional evidence that the Applicant, contrary
to its current testimony, considered that townhomes were single family attached
residents, not multifamily residents in the LBV Plat. Because the Applicant did not
appeal the condition within twenty one (21) days of the issuance of the building permit
under the Land Use Petition Act it became final. The condition was thereafter no longer
amenable to ad hoc modification by the Applicant or DCD.11
II If the Land Use Procedures Ordinance ("LUPO") applies, the decision is made by the Director of
Community Development and is appealable in an open record hearing process to a hearing examiner. See
L UPO Sec. 14(F), 17. It apparently may be appealed again to an appellant hearing examiner in a close
record process. See LUPO Sec. 19. The final decision may then be appealed judicially under LUPA. The
initial administrative appeal must be perfected by filing within fourteen (14) days of the issuance of the
building permit. The issuance of a building permit is a Type A decision under LUPO and a Type I decision
under Chapter 18.40, JCC. See LUPO, Sec. 6(A); JCC 18.40, Table 8-1. In any case, no administrative or
judicial appeal of the condition was filed by the Applicant. As a result, the condition and its implication
that the townhouse plat provided for single family attached residences under the MPR Code became final.
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Notwithstanding the casuisty advanced by the Applicant in support of the notion
that townhomes are multifamily dwellings under the MPR Code, the language of the
MPR Code simply does not support the reading. MPR Code Sec. 3.103(3) provides:
The following uses, lot sizes, and densities are prmitted conditionally in the
MPR-SF zone:...
(3) Single family attached dwelling units including duplexes, triplexes and
fourplexes as part of a new subdivision, not to exceed a gross density of four (4)
dwelling units per acre. Setbacks and impervious surface limits shall apply to the
total lot or development parcel, not to the land allocated to any individual unit.
For purposes of this Ordinance, "single family attached" shall mean a townhouse
style or site-by-side development, not stacked units.
The Applicant's proposed reading of the third sentence ignores the critical words "for
purposes of this Ordinance". That language does not simply refer to MPR Code Sec.
3.103(3) or even 3.103. It contains no temporal limitations relating to existing plats or
plats to be approved.
Moreover, its reference to the "Ordinance" must be understood in the context of
the general applicability thereof to the development of land within the Port Ludlow
Master Planned Resort (the "MPR"). MPR Code Sec. 2.10 provides that:
The provisions of this Ordinance shall apply to all land, all associated water areas
and all uses and structures within the boundary of the Master Planned Resort of
Port Ludlow...
MPR Code Sec. 2.20 provides that:
No structure shall hereafter be erected and no existing structure shall be moved,
altered, added to or enlarged, nor shall and land or structure be used, or arranged
to be used for any purpose other than that which is included amount the uses list
in the following chapters as permitted in the zoning district in which the structure
or land is located, nor shall any land or structure be used in any manner contrary
to any other requirement specified in this Ordinance.
There is no free pass for existing structures that are modified. Adding garages and living
area where driveways are identified certainly is modification.
To ignore the language "for purposes of this Ordinance" would read it out of the
Ordinance. Rules of construction prohibit such a reading. Each word and phrase must be
given effect and apparent conflicts harmonized, if possible. Here, there is no conflict at
all. The last sentence contains a general definition that includes townhouse and
unstacked condominiums as single family dwellings for all purposes under the MPR
Code.
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Given that the definition making townhomes single family attached dwellings
applies universally for purposes of the MPR Code, it applies to the development of
townhomes in the resort zone. MPR Code Sec. 3.402 provides for the permitted uses
within the resort zone. Multifamily and single family residential structures with a density
often dwelling units to the acre are permitted. Structurally, only townhomes, nonstacked
condominiums and nonstacked cooperatives can meet the single family structural
constraints. MPR Code Sec. 3.403 makes clear that existing non-resort uses and
activities may continue, expand or change, but only "in accordance with the provisions of
this ordinance. Thus, the "Ordinance" continues to control the continuance, expansion
and change ofthose existing uses. Such continuation is subject to the definition of
"single family attached" and its requirements. MPR Code Sec. 3.405 provide for bulk
and dimensional requirements within the resort zone. It states:
Bulk and dimensional requirements for commercial uses in the MPR-RC\CF zone
are contained in the table below. Single family residential uses are subject to the
requirements of section 3.1 0; provided that conditional use approval shall not be
required for single family attached development. Multi-family uses and structures
are subject to the requirements of section 3.30.
There can be absolutely no doubt that single family includes single family attached.
Otherwise, it would not be a conditional clause to the requirement that single family
residences be subject to the requirements for single family residences in the MPR SF
zone set forth in MPR Code Sec. 3.10. There can be no doubt that multifamily does not
include single family attached residences. If it did, the conditional would appear in the
succeeding sentence. It does not. Moreover, the conditional use of the MPR MF zone
that applies to single family attached residences likewise directs that such residences by
subject to single family residential height and dimensional requirements applicable to the
MPR-SF zone. See MPR Code Sec. 3.304, It also contains the same conditional clause
relating single family attached residences to single family residences generally but
requiring a conditional use permit for their development in the MPR-MF zone. Were
such residences multifamily, there would obviously be no requirement that they be
approved as a conditional use; they would be a primary use.
Structurally, townhomes, despite the Applicant's argument to the contrary are not
multifamily. They do not share lots or lot amenities such as decks. While the decks are
linked, each lot has its own deck. They do not share common walls as would be the case
in multifamily dwellings. They are comparable to and treated similar to nonstacked
freestanding condominiums that are built on limited common areas. See Description in
CC & Rs, Sec. 1.17, 1.27. See also RCW 64.34.020(22).
In conclusion, the proposition urged by the Applicant and, now DCD, is factually
and legally without merit. At all relevant times by the Applicant and DCD knew that the
townhomes in the LBV Plat were single family attached units under the MPR Code and
subject to the twenty (20) foot roadway setback. There was no mistake. There was a
misrepresentation. Further, as a matter oflaw, the MPR Code simply does not support
the reading urged by the Applicant and apparently at some time accepted by DCD. It is
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absolutely clear that townhomes, and for that matter, nonstacked condominiums are
single family residential uses under the MPR Code and subject to the setbacks and
number of garage units applicable to such uses. In summary, the residential units in
structures 400, 700, and 800, and the structures that the Applicant proposes to replace
with stacked and un stacked condominiums or a commercial parking lot are all single
family attached dwellings within the MPR subject to the roadway setback and other
conditions applicable thereto under the MPR Code. The Applicant has knowingly
violated those conditions; DCD has knowingly condoned that violation.
The position of the Applicant that it cannot "fix" the problem of its violation of
the roadway setback because it would affect common areas is patently false. The owner
of all of the remaining land between Heron Rd. and the lagoon is the Applicant. This
applies to the lots underlying structure 300 that it wishes to convert to a commercial
parking lot as well as the remaining lots and the property under the Harbormaster
Restaurant that it wishes to convert to residential condominiums. Only the Applicant, the
party that submitted a conceptual site plan for structure 700 that was initially not accurate
or became inaccurate when the Applicant changed the design to include garages and
dwelling areas over the roadway setback. The Applicant is not vested in the violation. It
is in violation and that violation abides.12 The County has the authority to order the
Applicant to fix the problem. The language of JCC 15.05.100 makes this clear. Ifit can
order abatement and removal, it can certainly condition order the Applicant to cure the
defects as a condition to the major revision.
Moreover, Jefferson County has continuously classified the property between
Heron Rd. as unbuildable or as buildable with difficulty in giving the Applicant a
property tax break. Why then should the Applicant object? Is it ok to receive the tax
benefit but not recognize the limitation that creates the tax reduction? It is no answer that
the Applicant knew what he was buying. The Applicant entered the purchase agreement
for the unit in August, 2003. The unit was completed and closed in December, 2003.
There was no garage to view when the undersigned bought. In addition, the Applicant
sold the undersigned the unit with a garage. The undersigned paid for the garage. It was
an enhancement to the value of the unit and its cost to the undersigned. Thus, the notion
that the undersigned only may have waived the garage contingency misstates the issue.
Why should the Applicant get to sell the undersigned an illegal garage and receive full
payment for it? Finally, health and safety concerns generally trump, private land use
rights unless they make impossible the economic realization ofthe property right. They
are within the police power of the government. See Lucas v. South Carolina Coastal
Council 505 U.S. 1003 (S. Ct. 1992);. Edmonds Shopping Center Associates v. City of
12 Reference is made to JCC 15.05.090 making the violation ofa building permit a gross misdemeanor and
JCC 15.05.100 making the result of the violation a "public nuisance" subject to an order of abatement and
removal. The language permitting the County to seek an order of removal suggests that the violation
continues. It affects the successors in title such as the undersigned and their lenders. It affects the
Applicant as the party that granted a statutory warranty deed to the undersigned confirming that there were
no like encumbrances resulting from building code violations. It affects the title insurance companies that
have insured against such violations. This is not a neutral issue. It has a potential price tag of several
million dollars considering that there are ten affected units in structures 400 and 700.
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Edmonds, 117 Wn.App. 334, 359-367 (2003); West Main Associates v. City of Belle vue,
106 Wn.2d 47,51(986).
Here, the lots were not even rendered unbuildable by subsequent governmental
action. Their original design providing overwater construction violated Program Sec.
5.160 that was already the law. Moreover, what renders the lots currently unbuildable as
a function of moving Heron Rd. is the violation of the conditions of the building penTlits
andlor the MPR Code as to roadway setbacks by the Applicant in connection with the
construction of the units in structures 400 and 700, an action undertaken by the Applicant
to increase the price ofthe units and its profitability. Here, there are obvious health and
safety concerns. They are the very purpose ofthe roadway setback. They are confirmed
in the undersigned's engineering report on Heron Rd that was submitted with the
undersigned's comments on the SEIS.
III. Permits.
A. The Program Requirements. As the undersigned has repeatedly urged,
Program Sec. 6.40 mandates that all permits prior to building permits issue with or before
the SSDP application is complete. The Program states:
Any person(s) who wishes to conduct substantial development within the
geographical jurisdiction of this Master Program shall supply to Jefferson
County...through the Jefferson County Planning and Building Department for a
shoreline permit. The shoreline permit is considered the last governmental
approval prior to construction or issuance of a building permit. If a proposal
involves other governmental approvals, as in a rezone or subdivision approval,
these other issues shall be resolved prior to final action on a shoreline permit
application.
The purpose is clear. All other permits and consents that precede the building permit
must be issued or obtained before the final decision on the shoreline permit issues.
Reference is made to the example. Rezones and subdivisions are separate approvals or
permits that must be in place. Subdivisions by operation ofRCW 64.34.040(1) include
condominium apartments and binding site plans. This is consistent with the Plat
Ordinance at Sec. 11.10 and 11.20. If a binding site plan is required as it clearly is for a
condominium by the language of Plat Ordinance Sec. 11.10 and 11.20, the binding site
plan must be approved before the shoreline permit is approved. It is obviously
distinguishable from the building permit that is excepted from prior approval by the
second sentence of Program Sec. 6.40. All approvals except the building permit clearly
contemplate that plats, short plats, and condominium binding site plans be approved
simultaneous with or before the approval of the shoreline permit.
The requirement makes sense from a policy standpoint. The shore land is
protected under Chapter 90.58, RCW, its regulations, and the Program. It is subject to a
more rigorous review to ensure that the policies thereof are fulfilled. It requires not only
approval by the Director ofDCD as may be the case for building permits but also by a
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hearing examiner, an appellate hearing examiner after public notice and participation, and
the Washington Department of Ecology, after notice, participation, and final review of
the shoreline permit approved by final action ofthe County. What the Applicant, with
the blessing of the County wishes to do is to avoid the messy process of actually
disclosing its real plans and where those plans affect other rights and interests in the
shoreland by eliminating the intermediary approval process generally applicable to
condominiums and plats in the shoreland. This is clearly convenient for the Applicant
but does not further the legal purposes of the Program or the SMA or the public notice
and participation contemplated by both.
Under the scenario urged by the Applicant and DCD, the SSDP contained in the
application would be approved without a binding site plan or plat. Because no permits
would issue except the building permits, the Applicant and DCD obviously does not
intend to give notice or review to the DOE as to each of the condominium structures that
will be constructed on the eleven (11) lots. They can be designed and constructed in any
manner that pleases the Applicant and the Director ofDCD. The DOE will not be
involved because its involvement will not be invited. Thus, the DOE will never be
shown the actual project plan, the binding site plan or the plat and will be asked to
approve the project blind, as a pig in a poke. Surely, this is not the result that the SMA
and Program are designed to further through their requirement that all permits to the
building permit issue or be approved before the shoreline permit is approved and then
reviewed by the DOE.
B. The Requirements ofthe Plat Ordinance. The proposal is not exempt
from a binding site plan. Strauss v. City ofSedro Wooley. 88 Wn.App. 376 (1997)
distinguishable. Binding site plans are the means of providing plat type description both
for residential condominiums and for mobile home parks. There is no difference in the
procedure. In fact Strauss was decided against the developer as the Applicant points out
because the developer sought to piecemeal develop outside the oversight of either a plat
or a binding site plan.
Notwithstanding statements to the contrary, an examination of the Applicant's
amended plan for the "major revision" shows an identical motivation. It wishes to
develop without the oversight of either a plat or a binding site plan. With the
concurrence of DCD, as admitted in testimony of Mr. Scalf, and the Applicant's
representative, it plans to do so by proceeding immediately from the conceptual drawings
attached to the application for a BLA to building permits without any intervening
oversight at the plat or site plan level. It is precisely the subterfuge that the Court in
Strauss eschewed. It should here be rejected.
Unless there is a binding site plan, neither mobile home parks nor condominiums
are exempt from the plat ordinance. The argument advanced by the Applicant that
binding site plans are not always required for condominiums by reference to marina slip
condominium ownership is based on inapposite facts and authority. RCW 64.34.040
makes it absolutely clear that a residential condominium apartment is a lot for all
purposes. If a parcel is divided into lots, it is either subject to the short plat ordinance or
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the long plat ordinance. See Plat Ordinance, Sec. 5.10 and 5.20. Ifa parcel is developed
as a condominium, apartments, the equivalent of lots, are created for all purposes. A
binding site plan is required ifthe number of apartments exceeds one. See Plat
Ordinance, Sec. 11.10 and 11.20. There are no alternative ways to create a residential
condominium in which the apartments will be separately owned by different parties.
RCW 58.17.035 and 58.17.040(7) recognize this. Iflocallaw mandates a binding site
plan to create a condominium, then that law exempts the plat ordinance but makes the
transaction subject to the more onerous requirements of Chapters 64.32 and 64.34, RCW.
Here, a binding site plan, the equivalent of a plat, is required to develop a new residential
condominium. It should not be piecemealed away as the applicant proposes.
A binding site plan or plat is not the equivalent of a building permit. Nor is the
review the same. Under current law, a long plat application and a short plat application
subject to SEP A compliance is subject to a Type II hearing process before a hearing
examiner. In the MPR, the hearing examiner's opinion may be administratively
appealed. There are ample opportunities in the process for public notice and comment.
The rights of affected property owners are recognized and preserved as provided in the
GMA and under the Washington State Constitution. The final decision from the process
may be appealed to Superior Court under LUPA. The procedure roughly parallels the
procedure that applies to the approval of a plat under LUPO that applies to the MPR13
The procedure that applies to the approval of building permits is entirely more
summary and does not contain the procedural and notice safeguards that apply to the
approval of plats or condominiums under binding site plans. It is presently a Type I land
use decision. Approval is currently by the Director ofDCD. The only appeal is a
judicial appeal under LUPA. Public notice is not required for categorically exempt Type
I decisions.14 Clearly, this is what the Applicant and DCD have in mind. The permit
application on each parcel will be separately submitted under analysis that will find them
categorically exempt, no public notice will be given, and the permits will be approved
before the public including the undersigned have a chance to respond. Given the time
given the County to respond to Public Record Act requests, it is highly likely that the
undersigned will have no way to respond to a Type I decision before the time has lapsed
for the response. LUPO offers somewhat more protections if the DCD determines that its
procedures apply. Even here, the notice is limited to mailing, posting or publishing. IS
The same issues under the Public Records Act obtain.
Neither the undersigned nor the remaining appellants from the LBV plat are full
time residents of the MPR. Posting, what the Applicant and the County is likely to
prefer, could well not provide notice. Moreover, piecemealing forces the undersigned to
respond to eleven different parcels that are variously submitted without effective notice.
13 See JCC 18.40.040, Table 8-2; LUpa Sec. 19. There is a proposed Comprehensive Plan Amendment to
eliminate the hearing examiner in a manner that would eliminate review of further land use appeals in the
MPR. Review of the current Jefferson County Code provisions and their lack of protection to contiguous
landowners is accordingly most relevant.
14 See JCC 18.40.150(1).
15 LUpa Sec. B(e); See discussion in footnote 1.
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Clearly, this is not what the law requires when a new forty two (42) apartment residential
condominium is developed. This is a walk around requirements designed to protect the
undersigned and other property owners whose legal rights are directly impacted by the
proposal.
C. Plat Alteration. The notion that the procedural protections for persons
owning interests in plats subject to restrictive covenants, as is here the case, set forth in
RCW 58.17.212 or 58.17.215 can be avoided, by a two step slight of hand involving first
a boundary line adjustment combining existing lots with other parcels to create eleven
parcels from thirty two single family detached and attached parcels followed by a parcel
by parcel filing of a condominium declaration that under the analysis of the Applicant
and DCD is not subject to the requirements of the Plat Ordinance as to the recordation of
a binding site plan must be rejected under the analysis of Strauss, supra. If the steps are
consolidated, the applicant is altering or partially vacating the plat to create a forty two
(42) apartment condominium. Why should it be possible to decouple two steps that are
mutually dependent upon one another to avoid the rights of the owners of interests in the
plat on the one hand and avoid disclosure required by the binding site plan requirement of
a condominium under the Plat ordinance on the other? Mutually dependent steps cannot
be reviewed separate from one another, particularly where there result defeats the
property rights of persons affected thereby and defeats the disclosure requirements
otherwise applicable to condominiums. This is exactly the issue addressed in Strauss and
exactly the reason the Court did not approve the result urged by the developer.
It is absolutely clear that the proposal, seen as a whole, is incompatible with the
result urged by the Applicant and DCD. This follows both from the overall result of
converting thirty two (32) existing lots into forty two (42) condominium apartments that
are lots under RCW 64.34.040(1). The number of overall lots has increased. This is
incompatible with the exemption in RCW 58.17.040(6) which only applies ifthere are no
increases in the number of lots.
There is also an increase in the number of divisions. This follows because a
residential condominium must have a separate condominium association the members of
which are the owners of condominium apartments resulting from the condominium. See
RCW 64.34.300. The existing CC & Rs provide for an association oftownhome owners,
of single family dwellings and of commercial enterprises. Engrafting a new association
that votes as such, a requirement implicit in the creation of the condominium association,
and, parenthetically consistent with the proposal of the Applicant to the LBV townhome
owners to amend the CC & Rs, creates a new division, the property subject to which is
the condominium of forty two (42) apartments represented by their owners. Clearly, this
results in a new division consisting of the condominium and its apartments and owners.
Such an association is not provided in the Master CC & Rs; it is incompatible with the
LBV Plat CC & Rs that cover townhomes and the single family detached residential lots.
The CC & Rs do not make provision for any such new association or the property subject
thereto. The property subject to that association cannot be seen other than as a division
separate from the resulting rump LBV Plat and its constituent twenty five (25) townhouse
lots and one (1) single family dwelling, now treated separate from the townhome lots.
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Where one division, the LBV Plat is divided into two divisions, the LBV Plat and a
resulting forty two (42) apartment condominium, two divisions are created from one
division. As a result the condition to the exemption set forth in RCW 58.17.040(6) is not
met and the transaction is subject to the plat alteration or plat partial vacation provisions.
It is obvious that the effect of the removal of the property from the plat is
determined with regard to the number of "lots" ultimately created but without regard to
the means by which they are created. To view the exemption otherwise would conflate
two exemptions, that in RCW 58.17.040(6) governing boundary line adjustments with
RCW 58.17.040(7) governing condominiums subject to binding site plans. The two
exemptions are separate. Qualification is had for one or the other at one time but not
both. The second exemption does not apply to the effect of removing property from the
LBV Plat; it applies to the condominium itself that will be formed from that property.
The first exemption applies to the conversion of the
The notion that the Applicant could change the CC & Rs anyway,
notwithstanding the fact the major revision conflicts their terms is obviously erroneous.
However the language ofthe CC & Rs might be construed, the Applicant has illegally
retained control of the LBV Association as created under the LBV Plat beyond the five
year period allowed in the CC & Rs to the declarant.16 Without paying assessments on its
lots, it has voted those lots to continue its control. It has not paid the declarant subsidy
required of the declarant under the CC & Rs. The provision on which it relies that
permits the CC & Rs to be amended by the master association except where the
amendment affects the amendment process itself must be seen as deficient on two bases:
the control it exercises is illegal and would subject its representatives to suit and second
the decision it urges requires a supermajority vote of the owners oftownhome lots.
If the Applicant exercised its unlawful control of the Townhome Association, its
representatives would violate their fiduciary duty under Riss v. Angel and with the
Applicant be subject to suit. Only the applicant benefits from "altering the plat", not the
Townhome Association or its members.
More important, the result of the proposed variance would in fact amend the
amendment process to make amendments to the CC & Rs by engrafting additional
associations with voting rights and by changing the ratio of voting rights that would
otherwise directly or derivatively have the right to vote on the amendment. The board of
the Master Association is composed of representatives that are selected in ratios provided
in the CC & Rs from its constituent members that include the Townhome Association but
16 There can be no serious argument that the CC & Rs are not violated by the proposal. Reference is made
to the briefs and oral presentation of Mr. Jordshaugen. Moreover, the reliance ofDCD or the applicant on
the correspondence between Mr. Taraday and Mr. Scalf in January 2004 has clearly been discredited in Mr.
Jordshaugen's oral presentation. It is absolutely clear that DCD and Mr. Alvarez were simply doing the
bidding ofthe Applicant and its counsel, that they have no independent research to support the proposition,
and, in fact none was disclosed in response to Mr. Jordshaugen's public records request, and that in any
case they have no authority and in fact are denied the authority under the Development Agreement even to
opine on the matter. See Development Agreement, Sec. 4.20. The duty of Jefferson County is to avoid
breaching the rights of the owners ofJots in the LBY Plat under the CC & Rs, not to construe them.
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not any new association such as a condominium association resulting from the proposed
"major revision". There would in fact be a modification to the approval of amendments.
Accordingly, the requirement is that 80% of the lots in the LBV Plat approve the
amendment, that is forty three (43) votes. The Applicant h as at most twenty eight (28)
votes if its lots are allowed to vote. It must then obtain consent of fifteen (15) of twenty
five votes from the independent owners oftownhomes in the Townhome Plat.
Obviously, the Applicant does not believe it can obtain such approval. If it were that
easy, the Applicant would have amended the CC & Rs long ago rather than face a
tortuous four year review process on its application.
If the Applicant thought it could resolve its problems by amending the CC & Rs it
would have done so long ago. Its inaction belies its position that this alternative is real.
The AHE should reject the invitation to give credance to the applicant's suggestion that is
alternative is even possible.
D. SSDP 91-017.
The Applicant conveniently omits discussion about the requirements of SSDP 91-
017. Its Amended Plan violates those requirements in multiple ways. It fails to cure
pending violations including failure to plant or maintain eel grass, failure to maintain
water quality, failure to develop and maintain half of the lagoon shore in native
vegetation as bird loafing area that is not accessable to human intrusion, failure to
provide continued public access, construction of residences after the lapse of the building
permit, and development around the lagoon in the form of residential development, a
commercial parking lot and a gathering area for boaters in conflict with the requirements
ofSSDP 91-017. The new SSDP application does not cure these continuing deficiences.
They abide. Jefferson County's prosecutor has a duty to enforce penalties against the
Applicant for failure to cure these violations and compel their cure. It has not done so.
The neighboring residents have a right but not a duty to sue the Applicant to perform its
duties under SSDP 91-017. The violations in both instances are violations of the
Program. 17 The Applicant's violations have continuously been brought to the attention of
the Applicant and Jefferson County since 2004. If the SSDP is approved by final action
of Jefferson County and forwarded to the DOE, the undersigned will bring the continuing
violations of SSDP 91-017 to the attention of the DOE and petition it to take
administrative action to secure cure and damages.
Because the violations have continued years after notice has been provided by the
undersigned to the Applicant and Jefferson County, they must be seen as willful. They
are without excuse. Neither the Applicant nor DCD offer any legal excuse. The only
excuse that the undersigned has heard from the former consultant to OCD, Ms. Faith
Lumsden, is that we should look forward and forget prior violations. That is no excuse at
all. There is no limit in Program Sec. 9.1 04 for damage claims against the Applicant for
damage to neighboring properties. The undersigned has a neighboring property that the
Applicant has damaged. Jefferson County, even after demand, by the undersigned and
others has ignored its duties under the Program.
17 Program, Sec. 9.102-9.104; WAC 173-27-270, 173-27-280.
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The undersigned urges that this response is an affront to the duties of DCD and
the DOE to protect the environment and the residents over the interests of developers.
The violations must be seen as willful. Violating an SSDP violates the SMA as well as
the Program. Under these circumstances, why would DCD urge a free pass? Why
shouldn't the cure of the violations be a condition to any further development?
Under no circumstances can this application be approved when it neither cures
violations in SSDP 91-017 and, further exacerbates them by providing for construction of
residential in the building in the prohibited shore land area, the use of bird loafing areas
for transient boat moorage gatherings, and the development of commercial parking lot
space contiguous to the lagoon. These obviously violate the conditions of SSDP 91-017
without regard to prior violations. They prohibit the approval of the new SSDP and the
subject application. The undersigned further notes that the proposition articulated by the
Applicant that the pumps around the lagoon have something to do with pumping water
into the lagoon from Ludlow Bay is patently false. The pumps are, as the Applicant well
knows, aeration devices. They have nothing to do with filling the lagoon with water.
That is accomplished through the conduits at the West end of the bay that connect the
lagoon with Ludlow Bay and provide access for fish from Ludlow Bay. The water from
Ludlow Bay, as the DOE correctly implied comes from the conduits and not the pumps.
That said, it is clear that the lagoon is, as stated by the DOE, tidal water and part of the
tidelands of Ludlow Bay, themselves part of the protected Washington waters subject to
the SMA and the Program.
IV. Shoreline Mana2ement ActIPro2ram Violations.
A. The Lagoon is Part of Ludlow Bay. While the "lagoon" may not
independently be a wetland of significance protectable under the SMA, it is clearly
protectable as part of Ludlow Bay. In response to Mr. Scalfs inquiry whether residential
construction is permitted over the lagoon, the DOE said that lagoons are bodies of water
and that residential construction is not permitted there over under Program Sec. 5.160.
The DOE continued its analysis of the lagoon as follows:
While this body of water may not be a marsh, bog, or swamp (Le., a wetland), it
is certainly a lagoon; which Webster's Dictionary defines as - "A shallow body of
water, esp. one separated from the sea by sandbars or coral reefs." Two culverts
maintain a connection between the lagoon and Port Ludlow Bay; one culvert has a
functioning tide gate, the other is an open pipe with a bottom elevation located
approximately 0.10 above mean higher high water (MHHW). A strong case could
probably be made for the lagoon as a tideland because 0.10 feet above MHHW
would still get fairly frequent tidal inundation. Finally, the lagoon is a "water
area" within SMA jurisdiction and, therefore, subject to the Jefferson County
SMMP.
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Consistent with this language, there are salt water fish in the lagoon, a situation that
cannot exist without an interchange of water between Ludlow Bay and the lagoon.18 The
small fish did not enter the lagoon through pumps or ground seepage to which the
Applicant averred. Consistent with this language is the historic depiction of the lagoon
on slides prepared in cooperation with the WDF.19 Decisive is the language in the DOE
letter that the lagoon is "a tideland" of Ludlow Bay. Tidelands of protected bodies of
water are connected to and protected by the associated protected bod!es of water. They
are wetlands of significance.
This description directly conflicts the "artificial", "small", and "nonwetland"
analysis urged by Mr. Scalf in his walkthrough and by the Applicant in its argument. The
request for code interpretation to which the Applicant averred and which the Applicant
admitted was withdrawn addressed just this issue as to construction over the lagoon. It
was withdrawn because the DOE had already told Mr. Scalf once that it did not concur
therein. Now the Applicant and DCD seek to ignore yet another conclusion reached by
the DOE in its letter; namely that the lagoon is tideland.
B. The SSDP Permitting Construction in the Vicinity of the Lagoon Violates
the Program.
Because the lagoon is not an artificial decorative body of water or otherwise
exempt from the SMA, it is subject to setbacks provided by the Program. High water is
the high water vegetation line. Whether the lagoon's level changes or not, there is a
vegetation line that surrounds it. The edge ofthat vegetation line constitutes the line
from which the setbacks under the Program are measured. There is no merit to the
argument of the Applicant that the lack of change in level exempts the water from the
SMA and the Program. Were that the case, lakes that have constant levels would be
automatically exempt. They clearly are not.
Program Sec. 5.160 provides that the minimum setback for residential
construction from a tideland is thirty (30) feet from high water. Program Sec. 5.50
provides that the minimum setback for commercial parking lots is fifteen (15) feet from
high water. WAC 173-26-211 provides that nonwater commercial improvements are not
to be built in shore land that is dedicated to residential use. Program Sec. 5.160 provides
that new residential construction should not be built in a way that obstructs the views of
existing residences. The protections of the Program both environmental and ofprorerty
interests apply and are in opposition to the Amended Plan and the proposed SSDP.z
18 See Discussion in undersigned's written testimony of November 30,2006, to Mr. Berteig.
19 See Log Ex. 93.
20 Program Sec.5.160, Performance Standard 9; Program Sec. 5.50, Performance Standard 4. Note, the
DOE in its letter of October 25, 2004, strictly enforces the requirements of the Program barring residential
construction over water. There is no reason to believe that it does not require the same strict standard as to
a commercial parking lot. Since the hotel is not a "water oriented use" within the meaning of WAC 173-
26-211, neither is the parking lot. It cannot be constructed in an existing residential development permitted
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The conceptual drawings accompanying the Amended Plan shows both residential
construction and commercial parking lot construction to waters edge on the lagoon. They
show that a commercial parking lot is being proposed for a residential zone in the
shoreland. They show that the views of structure 700 of Ludlow Bay are blocked by new
construction in front of and across Heron Rd. therefrom. The construction that the SSDP
proposes to approve directly violates both the Program and the provision of the
Washington Administrative Code respecting commercial construction in a shoreland
devoted to residential use. It violates the alternative position of the DOE that the lagoon
is tideland.
The DOE must approve the SSDP application. Before approval, the DOE will
surely be informed of the violations. It will be informed ofthe admission by DCD and the
Applicant that it seeks approval without detail so that it can avoid review by devolvinr all
further approvals to building permits that are exempt from the SSDP review process.2
There will not be another opportunity for DCD and the Applicant to attempt to
slide a defective SSDP under the radar screen. It strains credulity to believe that the DOE
will ignore its own letter and ignore the Program which it rigorously enforced therein to
approve an obviously defective application for an SSDP just because DCD previously
approved same or even because the SSDP was approved by final action of Jefferson
County. Upon appeal by the undersigned, the Shoreline Hearing Board granted summary
judgment against the defective SSDP submitted by DCD for the Trend West project.
Why would there be an assumption that a different result would here obtain? It clearly
will not be in a position to approve the application. This is the case without regard to any
right of appeal on the issue to the Shoreline Hearing Board.
V. Violation of Propertv/Contract Ril!hts.
The undersigned has argued that his Constitutionally protected rights are abridged
if the major revision is approved by Jefferson County by final action. Reference is made
to the undersigned's rights under the LBV Plat CC & Rs that are obviously abridged and
conflicted by removal of twenty eight (28) single family attached and four (4) single
family detached lots from the Townhome Association, their ultimate conversion into
forty two (42) condominium apartments with their own condominium association as
required by RCW 64.34.300, by the resulting change in the constituency of the Master
Association of which the Townhome Association is a constituent member and the
resulting reallignment and reallocation of voting rights and assessment obligations, by the
increased burden on the common areas, including roads, lagoon, and beach rights, shared
by the Townhome Association with other Master Association members resulting from the
increase in residential units, the modification or elimination of the declarant subsidy, and
the change of assessment and voting within the Townhome Association resulting from
the decrease in the number of constituent lots. The list is not exhaustive. It results from
the proposed boundary line adjustment without regard to the ultimate disposition of the
21 See Program Sec. 6.40, first paragraph that exempts building permits from the permits that must issue
before an SSDP is approved.
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eleven (11) resulting lots because of the reduction of constituent lots within the
Townhome Association. Voting rights and burdens change.
Moreover, the undersigned is a third party beneficiary under the Development
Agreement because the undersigned, as are all owners of units in structures 400, 700 and
800, is a successor in title to Pope Resources and by novation to the Applicant.22 As
such, the Development Agreement requires the consent of the undersigned for its
amendment.23 The Development Agreement adopts by reference the "resort plan" set
forth in MPR Code Sec. 3.901.24 The "major revision" purports to change the resort plan
by eliminating it. That change also modifies the Development Agreement. Modification
of the Development Agreement that affects the property of the undersigned and similarly
situated residence owners by failing to meet the requirements of comparability set forth
in the "Flexibility" provision thereof.25 Without regard to the "Flexibility" provision, the
modification requires an amendment to the Development Agreement. Since the property
of the undersigned is affected by a loss of the development of comparable public resort
amenities, the consent of the undersigned to the amendment is required. Jefferson
County and the Applicant urge approval of the "major revision" without such consent.
Such approval violates the undersigned's and other similarly situated residence owners'
Constitutionally protected rights under the Development Agreement to veto the
amendment thereof.
The Applicant's argument that it can change the CC & Rs because it unlawfully
exercises control over the respective Townhome Association and Master Association
must be rejected. The change involves a change in voting which affects the amendment
process itself. An amendment to the amendment process requires an affirmative vote of
eighty percent of the lots. Further, if the Applicant through its nine (9) factotums that sit
on the Boards of the Associations executed their authority by voting in favor of the
Applicant and against the interests of the residents, they would be personally amenable to
civil claims under the reasoning ofRiss v. Angel. 131 Wn.2d 612 (1997). Obviously
these impediments to the amendment of the CC & Rs to make the problem disappear
have discouraged the Applicant from attempting same; it has simply not done so. Its
failure to do so speaks loudly. Further, whatever its potential power, it has not modified
the CC & Rs. As they stand, they are violated by the Applicant's Amended Plan. The
violations are violations of the property rights of the undersigned and like situated
residents to the extent the governmental power of Jefferson County is used to effect
same. Such violations do not leave the undersigned without redress.
Reference by DCD or the Applicant to the exchange of correspondence between
Mr. Tarraday and Mr. Scalf in 2004 about the effect of a prior iteration of the Applicant's
proposal on the CC & Rs is not authority.26 Under the Development Agreement, DCD
22 Development Agreement Sec. 4.13
23 Development Agreement Sec. 4.6
24 Development Agreement Sec. 4.7
25 Development Agreement Sec. 3.11
26 Log No. 69-72.
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has no right to construe the CC & Rs,z7 Further, it is not a party to the CC & RS.28 The
CC & Rs set forth private property rights. They are not amenable to government
interference, at least for the benefit of another private party. As Mr. Jordshaugen pointed
out, the obvious history of the correspondence shows that it was processed at the behest
of a third party, counsel for the Applicant, without independent analysis by Jefferson
County, precisely the behavior, the continuation of which the undersigned finds so
offensive.
Any change invokes the protections of RCW 58.17.215 that recognize the
property rights of the undersigned under the LBV Plat CC & Rs, the abridgement of
protected rights under the GMA set forth in RCW 36.70A.020(6) and Art. I, Sec. 16 of
the Washington State Constitution and The Fifth and Fourteenth Amendments to the
Federal Constitution. It provides civil remedies to the undersigned against Jefferson
County under 42 U.S.C. Sec. 1983. It clearly constitutes a taking of the undersigned's
property rights in the CC & Rs and the transfer of those rights to another private party,
the Applicant, both without compensation and without any public purpose or use in direct
violation of the Washington State Constitution.
It is no answer as proposed by the Applicant and DCD, that the process is an
exercise of governmental police power. Reference is made to Viking Properties. Inc. v.
Holm. 155 Wn.2d 112, 126 (2005) and Manufactured Housing Communities of
Washington v. State, 142 Wn.2d 347 (2000). The latter case involved protection of
mobile home park renters from the condominium conversion of mobile home parks, a
substantially more sympathetic set of facts than those here present. Yet, the Washington
Court ruled that it violated Art. I, Sec. 16 of the Washington State Constitution because it
resulted in the transfer ofa property right from one private party, the owner of the park,
to another, the tenants. Although the transfer executed a public purpose, it was not a
public use. Clearly the tranfer there was an exercise of the police power of the
government to the same extent it is in this case. It did not pass Constitutional muster.
Neither does this naked transfer of a property right from the undersigned and other lot
owners to the Applicant.
In summary, the Amended Proposal asks Jefferson County to violate the
undersigned's and similarly situated residence owners' Constitutionally protected rights.
Neither the Applicant nor DCD have provided any legal basis to respond to the
undersigned's argument. The notion that there are no violations of the CC & Rs because
Mr. Scalf said so after a conversation between Mr. Alvarez and Applicant's counsel is a
thin reed upon which to rely. Moreover, there is no protection of Jefferson County for
being reasonably wrong. If the undersigned's property rights and contract rights are
abridged, Jefferson County is immediately liable. There is no excusable violation of
Constitutionally protected rights. Under the circumstances, Jefferson County is not in a
position to grant final approval of this application until the Applicant or Jefferson County
have obtained the requisite consents of private parties such as the undersigned to the
Amended Plan. .
27 Development Agreement Sec. 4.20
28 Exhibit to Log Ex. 144
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VI. Procedural Issues.
A. Recusal. The Applicant and OCD have presented a weak argument that
the Hearing Examiner was not really biased, is a good guy, and can, and this without
authority, by reconsideration assume jurisdiction over a matter lost by the notice of
recusal. These propositions are without merit. The cases cited by the undersigned clearly
establish that recusal has a jurisdictional element.
When a trier of fact recuses himself, he loses jurisdiction over the case?9 After
jurisdiction is lost, it cannot be again assumed. Reconsideration of a decision over a case
over which the trier of fact no longer has jurisdiction clearly does not provide a basis for
reestablishing jurisdiction. Jurisdiction is not a springing notion. When it no longer
exists it can no longer be assumed. Mr. Berteig recused himself. He did so for recited
cause. That should be the end of the inquiry.30
The proper comparison is the effect of the loss of subject matter jurisdiction in
Federal Court. That loss immediately divests the trier of fact of the right to hear further
matters in the proceeding.
The same situation would result if a party filed a LUPA petition after the lapse of
the filing period. The period has been held jurisdictional. The Court does not have the
right to reacquire jurisdiction.
The notion that there was a waiver or that one could be found in this case is
without factual support. The undersigned has continuously objected to Mr. Berteig's
continuation in the case because of the jurisdictional issue raised herein. Finally, the
notion that Mr. Berteig is a good guy or that the undersigned must show bias is without
merit. Mr. Berteig in his letter ofrecusal recites that the parties could see bias and that he
did not disagree. The reason for the bias is not relevant. The fact, or better stated, the
appearance of bias is sufficient. Mr. Berteig admits this. There is a basis for the recusal.
There is no basis to permit Mr. Berteig to reassume jurisdiction over this case.
B. Issues Raised Below. The Applicant urges that several issues
raised by the appellants were not properly raised below.
1. Binding Site Plan. The most important to the undersigned's
argument is the issue whether a binding site plan is required. The Applicant's
articulation of the issue is not correct. It is in fac! two issues, both raised below. The
undersigned argued that the Applicant violated the Program by failing to include all
permits and governmental consents required by the project that are above the building
permit. The undersigned made reference to the hydraulic permit.3l Nevertheless, the
argument is that not all of the permits and governmental consents were approved prior to
29 Jones v. Halvorson-Berg, 69 Wn.App. 117, 129 (1993).
30 Log Ex. 99, 10 1.
31 Log Ex. 140, p. 18.
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or simultaneous with the SSDP and that this failure required remand. The argument is
based on the absence of a consent or permit. Whether it is the hydraulic permit as raised
specifically and factually by the undersigned or other missing permits, including binding
site plans affects the factual scope of the deficiency but not the legal argument. Since the
legal argument was in fact raised, other incidents of violations thereunder may clearly be
raised. .
The undersigned further urges that the issue was raised as a factual
proposition in connection with objections to lack of detail in the Applicant's proposals.32
The lack of detail is or would have been met by a binding site plan. Whether the
nomenclature was cited or only the effect is irrelevant. The issue of detail' is the issue
met by a binding site plan. Raising the issue of detail clearly raises the issue of the
binding site plan without regard to nomenclature. Code pleading was eliminated three
quarters of a century ago in this state. It should not be permitted to rear its head in these
proceedings.
2. Recusal. The undersigned dissents the Applicant's contention that
the recusal of Mr. Berteig was not raised below. It was raised at a motion at the hearing
on November 30, 2006. Mr. Berteig denied the motion. Reference is made to the taped
transcript, It was also raised in the undersigned's written submission for that hearing.33
3. Procedure to Amend Resort Plan. The propriety ofthe major
revision as a means to amend the resort plan was raised below. It was argued in the
undersigned's motion for reconsideration.34
4. Trails. The undersigned defers to the LMC to respond to the trails
Issue.
VII. Miscellaneous
A. Health and Safety. Roadway width and design and sewer and water
allocation are implicated by the Amended Plan.
1. Roadwav Design. The only responses that the undersigned noted
respecting the substandard nature of Heron Rd. and Gull Rd. was that the right of way is
not synonymous with the roadway width requirement, that the Applicant obtained a
roadway engineer's report that addressed the issues addressed in the undersigned's
engineer's report, or that no one has been killed or seriously injured yet. These responses
are neither correct nor persuasive.
While it may be true that the sixty foot right of way provided in the Plat
Ordinance refers to right of way and not roadway width, there is no question that a
roadway that is less than twenty (20) feet wide, contains no dedicated pedestrian ingress
32 Log Ex. 140, pp. 16-17
33 Log Ex. 140, p. 19; Log Ex. 225, pp. 1-4..
34 Log Ex. 225, pp. 5-7.
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and egress, is not safe or adequate and that it violates the Plat Ordinance and design
standards that are detailed at length in the undersigned's engineer's report. The Plat
Ordinance requires that Jefferson County Public Works Department ("Public Works")
design standards apply. The roadway does not meet such standards. This is duly noted in
the undersigned's engineer's report.35 Neither were the conditions to the roadway
imposed either by Mr. Berteig or by the County by administrative variance.36
While it may be the case that there is a traffic study in the FSEIS, it is not the
same as an engineering study that responds to the undersigned's engineer's report. Mr.
Scalf represented the existence of such a study. The undersigned has not seen it or
reference to it in the logs. If it is not in the logs, the undersigned objects to any reliance
thereon by the Appellate Hearing Examiner.
The notion that the absence of past fatalities confirms the safety of Heron Rd.
andlor Gull Rd., a proposition urged by Mr. Scalf, is without support. It ignores changes
in use and density of development that have occurred and will occur as further
development is done along these roadways. Until 2003, there were only fourteen (14)
residential units. There are now twenty six (26). With limited exceptions at the
hammerhead of Heron Rd. no residential units face other residential units across the
roadway. The Applicant wishes to increase the number to sixty eight (68). It wishes to
develop both sides of the roadway at the narrow neck in front of structure 700. It is hard
to see how the prior absence of fatalities is a good measure of the dangers that will result
if the Applicant's plan is approved.
2. Sewer Allocation. Neither the Applicant nor DCD offered a
meaningful response to the PVblic utility issue that the undersigned has repeatedly raised.
Whether the calculation of available sewer is made on the basis of the Washington
Department of Ecology Sewer Design Manual that is provided by the Washington
Administrative Code and is thus binding on the development, or is provided by reference
to the actual flow information maintained by the DOE, the same result obtains. Given the
presumed number of occupants per residence, there is not enough sewer to cover 2,250
residential units, the number approved under the Development Agreement. The
undersigned has discussed this issue in detail in his briefs.
The issue implicates the GMA. Loomis v. Jefferson County, WWGMHB 1995
rejected the IUGA adopted by the BoCC for Port Ludlow in January, 1995, in part
because the allocation of sewer and water taps was not equitable and was discretionary to
a utility privately owned by the developer. The issue is again raised here. The MPR
Code assigns sewer and water taps to lots that were approved or proposed in filed plats or
binding site plans in 2000. It assigned 2,117 taps under its MERU count. It provided that
the Applicant could reallocate those taps only by withdrawing plats or applications for
plats. If the most restrictive standard, the Sewer Manual, applies, the maximum number
of taps is 1,667; this follows because the most restrictive standard allocates 1.35 MERU
35 Log 184, Exhibit.
36 See Plat Ordinance, Sec. 6.40 I; 6.306. Reference is also made to Plat Ordinance 6.309(8) which
prohibits half width roads. In effect, Heron Rd. is in places a half width road.
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to each residence, not 1 MERU because the average number of bedrooms per unit and
thus the average number of occupants per unit is not 2 but rather 2.7. After eliminating
the resort and recreational uses which are mandatory, t here are a maximum of2,180
MERU available. Reallocating these remaining MERU at the most restrictive standard,
that is the standard provided by MPR Code Sec. 1.40 and the DOE Sewer Manual, the
maximum number of residential units that can be built with adequate legal sewer
allocated thereto is 1,615.
The peak flow is currently about 420,000 gallons; the legal capacity is 85% of
640,000 gallons, that is 544,000 gallons. Subtracting the resort and recreational
allocations which are mandatory, the current peak allocation to residential is 365,005
gallons and the current peak gallons available for residential is 464,915 gallons. Since
there are about 1,500 residential units developed, this means that the maximum
residential buildout without expanding the sewer capacity is 1,911.
Adding existing residences to the proposed development under the "major
revision", the development proposed at Ludlow Cove II, and the development approved
at Olympic Terrace II, indicates that two hundred two (202) residential units will be
added. This exceeds the available sewer capacity under the most restrictive legal
standard. Both the most restrictive legal standard count and the capacity count are less
than the allocation ofMERU to existing and approved lots and commercial
development. 37
The results of these calculations at least casts doubt both as to the current
availability of adequate sewer for the lots in proposed or approved plats andlor binding
site plans, including the proposals involving the "major revision" and Ludlow Cove II as
well as issue whether the allocation of sewer to lots under the MPR Code and consistent
with the requirement of equitable allocation has been met.38 . Given the requirement that
the resort take precedence over residential development under RCW 36.70A.362 and the
obvious overallocation of the sewer and water taps when the calculations are correctly
made under actual flow andlor the legally most restrictive standard, before any further
plats or binding site plans are approved, the Applicant and DCD should be required to
produce an independent audit of the available sewer and water and demonstrate adequacy
and compliance. The word of the captive sewer company, OWSI, owned by the
Applicant should not be accepted as it has been here. Under the MPR Code, ifthe
residential sewer and water are overallocated, plats must be withdrawn. Which plats does
the Applicant wish to withdraw to bring the sewer and water availability into equilibrium
with the allocation? 39
B. Absence of Detail in Conceptual Disclosure. The undersigned and other
appellants have continuously objected to the lack of detail in the Applicant's proposal.40
Without such detail, it is impossible to evaluate the comparative offsets that are required
37 See MPR Code Sec. 3.804 and 3.805.
38 See MPR Code Sec. 3.804; Loomis v. Jefferson County, supra.
39 See further discussion, Log Ex. 144, pp. 7, 8; MPR Code 3.803(7) 3.807(1), (5).
40 See Log Ex. 144, p. 16, 17; Log Ex. 225, p. 16.
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under the prism ofthe Development Agreement and the MPR Code's "major revision"
procedures. No one can be certain from the last filing, or even the FSEIS, that the
Applicant is developing single family attached or condominium residential. No one can
tell exactly where the units will be developed. There is no height, bulk, or location
information. Even the conceptual drawings misrepresent the units, or at least the existing
units by continuing a description of cutouts where garages are located. How can anyone
tell with certainty the impact of the development.
Apparently, the argument advanced by the Applicant and DCD is that the detail
will be revealed in building permit applications. As indicated above, this is completely
inadequate. An SSDP may issue without data that may later be developed or disclosed in
the building permits. There is not equivalent disclosure as would be the case of a
subdivision or a condominium. That disclosure, that is a plat or a binding site plan is not
equivalent to a building permit. It is part ofthe permits required prior to approval of an
SSDP because it provides necessary data for such approval. That data is not here present.
The Applicant and DCD contlate the building permit with a plat or binding site plan; they
are clearly different levels of permitting. Building permits are approved by DCD itself
with little or no notice; plats and binding site plans are ultimately approved after notice
and a hearing process by the BoCC. There can be no comparison. Attempting to drop a
public review process to a Type A or Type I review simply violates notice and review
standards under applicable land use law. It cannot be allowed. The affected public is
entitled to fair notice and an objective hearing on the merits of the proposal; that cannot
be effected without the notice implicit in a plat or binding site plan.
VIII. Conclusion.
Without waiving any argument made orally or in prior statements by the
undersigned or the facts referenced by the undersigned therein, the undersigned, in
conclusion, urges that the application is fatally tlawedand must be remanded. It requests
approval without necessary detail of a project that patently violates both the GMA and
SMA. It patently violates private property rights and asks for Jefferson County's illegal
participation therein. It ignores the rights and interests of those who have purchased
property from the Applicant and whose rights would be violated by the Amended Plan. It
ignores applicable zoning requirements set forth in Section 3.400 of the MPR Code and
converts dedicated resort amenities to residential housing, in other words to "sprawl". It
continues and exacerbates issues relating to sewer and water availability and unsafe road
designs. The application is incomplete. The descriptions provided by the Applicant are
completely inadequate and do not meet minimum notice requirements. The proposal
seeks to avoid requisite review and public comment by devolving decision making to a
Type I or Type A decision that may be without administrative review and without
adequate notice. Surely this does not meet the requirements of an SSDP or the interests
ofthe affected public.
To assist in review, covered hereby is a copy of the engineering report of Ed
Stevens and Associates, Exhibit B to Log 184, the conceptual site plan for building 700,
the building permit for building 700, both attachments to Log Ex. 144, the memorandum
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of Mr. Scalf to the BoCC dated August 25, 1998, which is attached to Ordinance 10-
1214-98, and the Letter of the DOE to Mr. Scalf respecting the lagoon of October 25,
2004, Log 222.
Based thereon:
1. The Application which is obviously incomplete by reference to its SSDP
requirements set forth in Program Sec. 6.40 should be remanded to the Applicant to be
completed by inclusion of a complete hydraulic permit and binding site plans as to the
proposed condominium projects.
2. The Application should be remanded to the Applicant to obtain consent
from the owners of interests in the LBV Plat or to obtain ajudicial determination that
such owners interests in the LBV Plat are not adversely affected by the Amended Plan.
3. The Application should be remanded to the Applicant with instructions
either to obtain an opinion from the DOE or declaratory relief from the SHB to that the
Amended Plan does not conflict the Program or to modify the Amended Plan so that the
conflicts to the Program are eliminated. The conflicts include residential construction
within thirty feet of high water vegetation on the lagoon, construction of a commercial
parking lot in a residential shoreland area within fifteen feet of high water vegetation on
the lagoon, and residential construction which blocks the views ofthe residences in
building 700, and the continuation of violations ofSSDP 91-017.
4. The Application should be remanded to the Applicant with instructions
either to obtain declaratory relief from the WWGMHB that the resort buildout approved
in the Resort Plan or some equivalent resort buildout thereto is not required to maintain
the qualification of the "Pope Property" as a master planned resort, or to develop an
alternative resort plan that provides for visitor accommodations and support and
recreational facilities consonant with the requirements of a master planned resort and
sufficient to justify the buildout of 460 residential units provided in the Development
Agreement.
5. The Application should be remanded to the Applicant to develop a
roadway improvement plan that brings the roadways into compliance with the manuals
applicable thereto and addresses the safety concerns contained in the undersigned's
engineering report.
6. The Application should be remanded to the Applicant and DCD to
conduct an independent study of the availability and allocation of sewer and water taps to
existing and proposed lots, including apartments contemplated by the major revision
providing a base line for the allocation of sewer and water consonant with MPR Code
Sec. 1.40 and the Applicant should develop a plan therefrom that equitably adjusts plats
and allocation of sewer and water taps consistent with the findings of the WWGMHB in
Loomis v. Jefferson County (1995).
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7. The Application should be remanded and considered as a rezone affecting
the Resort Zone as set forth in MPR Code Sec. 3.40 and subject to approval process that
applies to rezones and amendments to the Comprehensive Plan and the master planned
resort development regulation.
8. The Application should be remanded to the Applicant with a requirement
that the Applicant provide binding site plans and plats or their equivalent to show the
height, bulk, and location of the improvements that it proposes to build and develop in
the Resort Zone in connection with the "major revision" to permit adequate basis for a
review either under the "major revision" procedure or as an amendment to the
Comprehensive Plan.
9. To the extent not set forth herein, the undersigned repeats the prayer for
relief contained in his petition for review of the decision of Mr. Berteig that initiated the
undersigned's administrative appeal.
RESPECTFULLY SUBMITTED this 14th day of December, 2007.
~M~ ~~
Leslie A. Powers
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- 21-
IZI OO$/OO~
\ O$~UJ/200. '1'BU 12:.21 PAX
. . ;OG~ (est' O~ XWF.r~] 9t;tJ aBL .OO~'.t/'O
. ..1I.U'FBRSON COUNTY
DEPAR"rUENT OF COMlIlJUNI"fY DEVELOPMeNT
UNIFIED D&VI!LOPMENT COOl!
TYPEfLANDUSBPERMV
.~
PORT WDLOW ASSOCIATES u.c:
70 BN!!AJCEFt LN
PORT LUDLOW WA 983G5097S6
Oot-b-e.... z.~ ZDD'Z-
DATa IaSOI!:O:
QATa.PlMa:
..LA IllUMl!laFb ~.(104S8
f'ftO.JEC'r PLANh&R: J SMITH
PROJIeOT D&8CRIP11ON;
5TOWNHOMES
l"Ro..IeCtT L.OCATION!
Pared tIWr'IiMlt 988 600 039, Ludlow Bay VIJage, Lot 11i-26. h StJC1jQn 16. TownshP 28. ~ 01 e..a. WAf. IIJCa1ed
at38 Heron Rd. Par1 ludlow, WA 98366
FINDINGS:
1.)
2.)
n. JldminhIr:atorfiftda that .. ~ticn 0l.J~ will ..ppIa1bIG ptOVlllloM offlw1JnllBd o._bp'Ml'lt
00cIeI. allo4tler ~ ordIrIPncett and~, end'=' canlllMentwlfttlw ~ Cw"",
w:'~~~ 'f:~ 0Dunt)' .,..,~olColmunftJ DevebpmerltS1lllfan
September2$. 2002 b IIut pater6d ~of CIIUl:::aI Arl'IiS$ (CA$) undItt'tM prC'I/'J:sfoM of"'_ ~
eoc..nty I'nInn CllrfIbII An1a'!s 0rdln8naI (JCIOAO). Mtw an in.... ~aphIc Itlro..halkln ~ ~
nwlew and .. invuUgative .....lnspeCClOn.lhe ilIbwq CH \oWItll oonfn'nad to ... flftQht on .. :Subj'lIa .
property: ~ AquIter Rcd1arge Area; Rood Zone k Seismic ~ o.prey Nc=f..li and 1)'pa 1 trt~
~.WMcn. .
~Aquifer ~ AI".- .. __wIh QeoIogicand I1ydrQIogrc ~ thet promo'" nI'Pid
lnfI1ratIon of~watera to ~~
A/:IJiffw RAadwga ~ 1n.J1IffI8taon CounI.y ant G~ by pon;KIa g8UlClglClll fonnaUons ltlatalOlllr
pen::olaion ofthellllfac:D water fnto \h& eoIIe and 1tlO undeIttyfng zone at S8Uadr:ln. ~ are ~
fom"llllDnS that conlBln sutIIdent safUl'atiDd J)IIml8IlbIe maI8IiII to ~ ~ qwudiIIIts 01....... 11>> .we"
end springs. AQUI'tIn ltlflMiI _the $OURl8 of drWcfn9 ....,.YMlIn n\OlIR of the nnI panIons Of Jeffenilon
~.
A F1neI ~ ImJn'lCf SlBWnont WNlsaued by Jemnon County in Nardl1993 for the LudloW 8;..y
VBIege Develcpment (fcmIcmy 1UIOwn.. 'T'HE INN AT PORT LUDLOW) A ~1 ~ Wt 1he FEtS
requhs ~ Ioweat lIeD 01 all bUIcJings WC)UJd be eIW8ted one foot abvYe Il8 base tIood 8leWdbn. Ari1er
~ for~ and mo1hads OIlconsln.rc:C1on from the CountY'S P1aod PIat1 ~QdhQllt
would 8IIso be foIowed."
A Ftlaf s=n.i~~ lmpe.Q"Statement WlISI$$1.led by Jeffer.on Courl\y n ~ 19193 for lhal..UdloW Bey
Village ~nt (fonnarty knOwn Q$ nE JNN AT POM LUDlOW). A. mllgaUQIl rnealJtR In ttIlJFEIS
.states, "PrcpofJed dU.... WOlId brt cJes9ted. Mgbeerod and ~ In toodornl8nt>> wfth IoQlII tluJdin
codes W1d ClItI'enl eafety standards WIilIrldSIIde and NlItmIC hezatd ~ FUI1bet slrbcllnl suppor\ or
ground mQdlliQaUon would be lW'fWPIoyed if 1tI& final ~nJceI ualJlSllml80t IdcIrldfteS ~ IarldsIIde
atd/or :seflmIic~"
A FhlI ~ Impact Sbltl!lment W8& IeISUed by JeffeI"son County In MliItch 1993 for'1hel.tldkwt Sa,
VIlIege ~ (fonnerIy known as 1lE INN AT PORT UJOLOW). "dfgaUon mea&\lnlt In the f'EIS
5tatas '1JnIinege JInes WOUld be Instelfed behIr1d reIiai1lng1basemel'lt wallIS IIr1d aomd Idding foDtIJ\g$1o
prevent buifdup ottaydrostatie F"~ and ~ Interoept groc.lodwatw."
3,).
4.)
5.)
4.)
1.)
S'd
9t'd
ll^lO - ~o~n~.so~d o~44ar
R4~lt)l pUIt Rpue~
1.':1..8 ~ It toD at :In;"
dgp;90 ..0 TO ^OW
LOG ITErvl
# ?-SS
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!JstS-SSE uee
OOBB-LE" (OSEl
~8;191%004 TBU 12;21 FAX
;.'"~C 19 04 11:37a ~.~~Co P~os.ou~or - Civil 380 38S-S1SB
iii () 07/00'
p.?
..~.
a..J A FInal Bw!tonmentaf frnpcJcl $1:a1IeMe(lt... __ by Jeft'ersan County In u.rd'I1UQ$ far.. Port LudloW
Say \IIRage Development (famerty mown as me INN AT PORrLUOlOW). A ri6gaGon II'KN'.IIIIft in Iho FElS
$1;:1I_ ""Int~av- Y40UId h in:litaIked todeGaibo ~1"A~~ endWldllfe ~
on 1M ~Io.. PamphIoCs 8l1cf brocimns wauJd" dbrdbuled to resIderd$ and guests 10 ~ awarenu:s and
~<:l feW' wJdIlI'e.. ·
t.) This uppmvellafor 5 townhoU.. onty. Any futunt peimb ~ ...,. sIIlll'" aubjeclkJ ~for~ ICY
WIth q:.plblble oo4es and ~ aOd ... not pnldUde rev,", and condillons VIhk:h may be pIacBd on
ftlU'e pem1b.
11'.) i;;jj~__-~~d:~~'&y~~r~bN
372&17.
1%.) Acci!liM Is pnwtded vie Hercn Road a private road (P405).
13.) The plat WGllI f'e\'IlNied lor mecmLm stormwater buIdout n 1994.
CONDmONS;
it,.) The bt.ikJhQ heighllbal not ~ 35 feel,
2.) MI'ninlLm selbar.:k from Hetoh Road righklf-way 8haI be 20 re.t. Minil'mn 8edJedc from OHWM shId be 30
,.,... ~.on lhe~ ofl!!LftnlIt _ . .
a1- TM pt\~ sb8lI iDdttef'8 to he BetitMiirragement Pt8dfce$ (BMPB) 10 control $IDrmlrotatar. ~ errd
sedimmtdudng ~ BMPc ahaII ~ peiI'l'I'l8I18Il'fttIIII8SlnlS to ~ 8GI ~ dI.Idng
oomtn.ICHon. and In .". daesIgn and opcreIon ot ~..... dr'aIneve 00PCrd.,.--.
NOTJC8 11Iln""""" ceo- tI<< e)CUM VMI ...~t hili ~ wttfI oth...-JQCIII,..... and I\ecIef-aI oailnanOM,.
regUldona. vr atIIIuIllra ,.,..,... ~ ... ptOpcIMd "'~f. - - .
Ocwe.fopll..nt punuant" .. piSani abd .,. wnd~ .,.ctto the~ d~.nd ~
tltllII\daid. of t_J~ OOuntr UlllnecI ~ment Code.
If ~rine ~vaGon or d*~'" t:K tho ... ., .... of ~ ,.waa~ .....ce .. ~d. ,.
~ In the .mmedJ8t8 Mnt ~_" heltIed. snf thcs ~ shal ba notJIiad _l QRtlIt.
~
1be Federal &ndlmQlINd Spedes Act Rites to protlwtth,._nod Cblnoolt end $0""".,..-.., c:;....m..amen ~
~e en .knu:aIY 8. ZOOt. fJuI wcil hIrVe bevn lIA!d _ fhrlAtenod .... lNriY~o. UndOl"1hell1iSA.-.nt
~ biN Iliw$ult ...IlIR..y ....divW_ or~ ht""lablr IIatDd $Peele. (deITned _ calalng hanII,.
lllIIIe . or ~tIQrn~"llifat bt tfie a.tad ~_ In addickln, 1M HeUu'" ~ ~ 8afyjgii oan"\I:f
1*' .. ~.... In halon COCIIJIY ... tnickl _ "ortdcaI ~.....tH flP/fJcfttIf$.emerc of
pro~.1onu ~ madn.~.. "'!YoMI&lIr~ or ~"'I1ll_UId '-"' hrld*IotW YO ~
ant not 1aIcan. To mkltml:le Ihe PClC8nu.l to 4llIrnage ~ lIIII ~ ClWI18" 1lI..1qJing to "'....
~ Ms"tWllfM' ftOre'-. Of" tIQQd,*1M QIO .",,,1:1 .. dOthe~:
.. Set bIlrdc: bui~ wDiotu.hcl ~ 8* far _ ~ fW9m.,rfuI:Ie ~ (d'elIm&,. dvol$. NlillGa. Id;ilI"InD
walata). Qt" lit I.,.. 150'" ~ UIIIlII "0- db_w
-Nf d~.1lt lMIvlUoe ooufd ~ ..........ek1pe8, wet.f;and-. end ~tled.~ l"earsurr.::. Wll....
. R~ riM mal ~fo..lIlte d_eJoomer<<. ..~~t"'"
.. Mow trolls tlUlth8W liIa-n trw.___ ~ to ...m.tn 1h....
-1ft...... sta~m building.. a.... ~;,a on.lee ~ ~.. rather"an disc:harsfne diNdy 1l'Ilo
:!/U'ftIICle ~ .. CI t.Ulchu .
NrI indIItkI.... g~. a' agonc.y Ctll'I ~ _all t>ra IIstIId DIidea ...ktl"lG.".veR 1t)'CI.I .lJlI'lIII ~Wlh
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DnJ1'MaIcnal fit-.-_ habItIlttriOlogl$t. ..d~1 the ~ for 11&0 ~t "".,..
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EOWARO SteveNS & ASSOCIATES
fNGNERS,lNC.
ace COL.LJM&l1A ST. NI/tI.. surre 214
OI..YMPIA. WASHINGTON ae601
G39O) 3!5?.eel51
FAX: t3eOl3e2001OS
Job 3637
June 7, 2004
Mr. Les Powers
3502'Tieton Drive
Yakima, WA 98902
Re: Review of EIS f~r the. 2003 revision to the Port ludlowResort
Dear Mr. Powers:
Introduction:
'.'
You have retained the services of Edward: Stevens and Associates to.review the
SEPA action being considered relative to the 2003 revision to the Port Ludlow
Resort Plan Revision. The scope of this study is to review the Draft EIS for
adequacy related to impact on roadways that are to serve the vicinity of Ludlow
Bay Village. Specific attention is being placed on Heron Drive and access to the
37 seat restaurant which seems to be called both Heron Beach Inn and Inn at
Port Ludlow in the Draft Supplemental Environmental Impact Statement.
Qualification$:
I am a registered professional engineer and land surveyor in the State of
Washington. I have worked for twenty five yea~s with the Washington
Department of Transportation 'in a variety of-areas encompassing the broad field
of transportation engineering. I have worked for five years as a land surveyor
and engineer comp~eting a wide variety of transportation engineering projects
and subdivision design and platting projects.' I have been at Edward Stevens
and Associates for more than 7 years. Edward Stevens and Associates is a civil
consulting firm specializing in engineering studies related to safety of
transportation facilities.
A current curriculum vitae is attached for more detailed background.
Materials reviewed for this study:
1. Jefferson County Road Standards sheets for:
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EDWARD STEVENS & AsSOCIATES
ENGINEERS, INC.
Mr. Les Powers June 7, 2004
1. Single Lane Two Way Traffic, AASHTO "Local Service Road", June
18, 1995
2. Typical Road Section 18' Roadway, November 13, 1996? (Date
difficult to read on our copy)
2. "Guide for Development of Bicycle FacilitieS', American Association of
State Highway and Transportation Officials, (AASHTO) 1991 and 1999
editions
3. "A Policy on Geometric Design of Highways and Streets', 2001, American
Association of State Highway and Transportation Officials, (AASHTO).
4. "Design Manuar, Washington State Department of Transportation,
current edition.
5. II The Traffic Safety Toolbox' - A Primer on Traffic Safety, Institute of
Transportation Engineers, 1993
6. "Local Agency Guidelines Manua', City and County Design Standards,
Washington State Department of Transportation, current edition.
7. "Roadside Design Guide" American Association of State Highway and
Transportation Officials, 2002
This review is limited to analysis of the transportation element of the Draft EIS,
with a focus on roadways within the plat of Ludlow Bay Village.
Section 1.7 of the Draft Supplemental Environmental Impact Statement contains
the following at page 1-13 and 1-14:
1.7 Significant Issues for Consideration:
Major issues identified during the scoping process for the 2003
Resort Plan relate to:
(3) Parking and Vehicular Traffic
The proposed 2003 Resort Plan, including the expansion of the
marina, will create demand for additional parking, especially in the
vicinity of the shoreline. Will sufficient parking be available during
the peak summer months? Existing traffic circulation in the vicinity
of the Inn at Port Ludlow and the adjacent townhomes is difficult for
townhome residents. Will the proposed development exacerbate
the problem?
This section recognizes existing difficulty of traffic circulation along Heron Drive.
The potential for making matters worse for abutting townhome owners is
acknowledged. I agree with this assessment. The question is asked rhetorically,
however there is no information that could be found within the Draft EIS to
provide an assessment of impacts and mitigation.
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EDWARD STEVENS & AsSOCIATES
ENGINEERS, INC.
Mr. Les Powers
June 7, 2004
Transportation impacts are summarized On Page 1-22 of the Draft EIS. Under
the heading of "Mitigating Measures" the entry "None Required" is found.
(Exhibit 2) I do not agree with this assessment relative to at least Heron Drive.
In the absence of an answer by the developer to his own identified "significant
issue for consideration" I I will provide my analysis of existing conditions and
possible impacts along Heron Drive, and the likely mitigation that would be
required to correct the situation. My concerns are summarized below:
Altered and increased traffic patterns:
The preferred alternative includes shoreline attractions at the south end of Heron
Drive in the form of an esplanade for pedestrians to view the marina, shoreline,
and park at Burner Point. Parking is being created at the north end of Heron
Drive to serve visitors to the shoreline attractions and overflow from the
townhouse area. This new construction will make a pedestrian and bicycle route
out of Heron Drive to a far greater extent than exists today.
Sight distance. inter-visibility between users and modes
Sight distance along Heron Drive is limited in all directions by the narrow
roadway and inadequate setbacks for buildings. Garages were measured to
have a 4.4 foot setback from the edge of asphalt lane on Heron Drive. Vehicles
backing out of the garages cannot see pedestrians, bicyclists or other motor
vehicles approaching them until they occupy nearly the full lane. Pedestrians,
bicyclists, and other vehicles are in very real danger of conflict during the back-
out maneuver.
The degree of setback is analogous to head-in parking that used to be seen
along city streets. Most cities have eliminated 90 degree head-in parking along
streets because of the known hazards of this arrangement. The hazards are
related to two main factors:
1. Inadequate visibility when backing out onto the street. The visibility in the
head-in 90 degree parking that is less severe than what exists when
Heron Drive townhouse owners back out of their garages. A driver cannot
see out of the garages on Heron Drive at all, but there is usually some
visibility for 90 degree head-in parking through the windows of adjacent
vehicles.
2. A dart-out problem is created by sight blockages along the street. This
problem is especially dangerous for young children, who may not stop and
look both ways before they enter the street. It is virtually impossible for a
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EDWARD STEVENS & ASSOCIATES
ENGINEERS, INC.
Mr. Les Powers
June 7, 2004
motorist or bicyclist to stop for them when they are visible for only the last
few feet of their travel path before being struck.
Use of Heron Drive by multiple modes of travel:
Heron Drive will become a pedestrian and bicycle route to an even greater extent
than it is under present development. There are recognized safe standards for
width related to multiple use facilities for motor vehicles, pedestrians and
bicycles. Heron Drive does not meet standards for safe multiple use even if sight
distances were clear and unobstructed. Heron Drive is inadequate for the uses
that will be placed upon it by the new development.
Miscellaneous considerations:
I have been told that there will be a hammerhead design cul-de-sac at the south
end of Heron Drive for vehicles to turn around. Access to the Inn from Heron
Drive will be closed off by bollards, thus eliminating Inn traffic from Heron Drive.
The preferred alternative includes a fire lane connecting Heron Drive to the Inn at
Port Ludlow parking lot for emergency vehicle access. Unless it is effectively
blocked to all but emergency vehicles, this access will reconnect Heron Drive
with the Inn parking lot, further exacerbating traffic problems on Heron Drive.
The Draft EIS indicates that the Inn will not be accessed through Heron Drive for
the preferred alternative.
Emergency vehicle access is an important part of safe street design. More
investigation needs to be done concerning this critical safety aspect. How will
safe access be assured with the nartow, blocked off roadways characteristic of
the Heron and Gull Road connection? Fire and police officials should approve of
plans in this area.
County Road Standards:
A Jefferson County Road Standard that appears to be applicable to Heron Drive
has been reviewed. This standard sheet is titled TYPICAL ROAD SECTION 18
FOOT ROADWAY (35 MPH - UNDER 400 ADT. (Exhibit 1) This sheet
represents a rural roadway section and shows a 22 foot total roadway width.
There is a note on this roadway section stating that:
Roads in designated urban areas may require pedestrian
improvements, including wider shoulders or sidewalks.
The Ludlow Bay Village is an urban-in-character plat located within a rural area.
Resort planning calls for walking paths, a shore-front esplanade for pedestrian
,LOG ITEM 4
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EDWARD STEVENS & ASSOCIATES
ENGINEERS, INC.
Mr. Les Powers
June 7, 2004
traffic, and emphasizes the outdoor amenities and natural beauty of the area. By
design and intent, Heron Drive will operate as a multiple use roadway, serving
motor vehicle, bicycle, and pedestrian traffic. In my opinion, wider roadways and
sidewalks are required to handle the mixed uses that will be evident on Heron
Drive.
Requirements for multiple use:
The American Association of State Highway and Transportation Officials
(AASHTO) is an association of all 50 member states. Literature and design
gUidance emanating from AASHTO concerning geometric design truly represents
the consensus of civil engineering science regarding streets and highways. This
gUidance is used by all states in setting the basic standards for geometric design.
The Local Agency Guidelines for City and County use references Washington
Department of Transportation and AASHTO publications for guidance in
geometric design of county roads.
Bicycle safety and use:
"A Policy on Geometric Design of Highways and Streets", 2001, by the American
Association of State Highway and Transportation Officials, (AASHTO), contains
the following guidance relative to bicycle facilities. (Page 100)
BICYCLE FACILITIES
The bicycle has become an important element for consideration in
the highway design process. Fortunately, the existing street and
highway system provides most of the mileage needed for bicycle
travel.
. . .,. '" Improvements such as the following, which are generally of
low capital intensity, can enhance considerably a route's safety and
capacityfor bicycle traffic:
. paved shoulders.
. wide outside traffic lane (4.2 M, [14-ft) minimum) if no
shoulders exist.
. bicycle-safe drainage grates.
. adjusting manhole covers to the grade.
. maintaining a smooth, clean riding surface.
(Emphasis supplied)
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5
EOWARO STEVENS & AsSOCIATES
ENGINEERS, INC.
Mr. Les Powers June 7, 2004
The "Guide for the Development of Bicycle Facilities" (AASHTO) 1991, defines
the bicycle status of the roads in the Ludlow Bay Village as "Shared Roadways".
SHARED ROADWA Y - Any roadway upon which a bicycle lane ;s
not designated and which may be legally used by bicycles
regardless of whether such facility is specifically designated as a
bikeway.
In Chapter 2, on design, the Guide discusses roadway improvements:
Roadway Improvements
To varying extents, bicycles will be ridden on all highways
where they are permitted. All new highways, except those where
bicyclists will be legally prohibited, should be designed and
constructed under the assumption that they will be used by
bicyclists. Bicycle-safe design practices, as described in this guide,
should be followed to avoid the necessity for costly subsequent
improvements. Because most highways have not been designed
with bicycle travel in mind, there are often many ways in which
roadways should be improved to more safely accommodate bicycle
traffic. Roadway conditions should be examined and, where
necessary, safe drainage grates and railroad crossings, smooth
pavements, and signals responsive to bicycles should be provided.
The RCW's on bicycle accommodation:
RCW 47.26.300 Bicycle routes-Legislative declaration.
The state of Washington is confronted with emergency shortages of
energy sources utilized for the transportation of its citizens and must seek
alternative methods of providing public mobility.
Bicycles are suitable for many transportation purposes, and are
pollution-free in addition to using a minimal amount of resources and
energy. However, the increased use of bicycles for both transportation and
recreation has led to an increase in both fatal and nonfatal injuries to
bicyclists.
The legislature therefore finds that the establishment,
improvement, and upgrading of bicycle routes is necessary to promote
public mobility, conserve energy, and provide for the safety of the
bicycling and motoring public.
[1974 ex.s. c 141 9 1.J
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EDWARD STEVENS & AsSOCIATES
ENGINEERS, INC.
Mr. Les Powers
June 7, 2004
The Port Ludlow development complex is a destination resort and conference
center featuring extraordinary beauty and outdoor amenities. Hiking, recreational
walking, and bicycling are ordinary activities in this setting, and must be provided
for in a safe and responsible manner.
Recognized Standards for safety and multiple use:
Clear zone standards:
A minimum clear zone of 7 to 10 feet is recommended by AASHTO in the
publication "Roadside Design Guide", 2002 edition. This is for urban construction
where there is no barrier curb in place. Barrier curb is defined as a curb at least
6 inches high with a vertical or nearly vertical face. There is no curbing on Heron
Drive.
The term "clear zone" refers to a width outside of the traveled lane edge that is
kept free of fixed obstacles. During a field trip to the area, I measured 4.4 feet
from the edge of traveled lane to the face of garage buildings. This is in violation
of clear zone standards.
Clear zone standards are promulgated by the MSHTO, and Washington State
Department of Transportation. The purpose is to build safety into the roadside
environment. In the case of Heron Drive, safety would be enhanced by not only
removing fixed objects, but by increasing sight distance. In my opinion, a
minimum of 10 feet should be employed to create some degree of inter-visibility
between vehicles backing out of garages, pedestrians entering the street, and
traffic on Heron Drive itself.
It is my opinion that the lack of adequate clear zone along Heron Drive creates
unsafe operating characteristics. The more traffic increases, the greater the
probability of serious accidents will become. This deficient aspect of construction
along Heron Drive needs to be considered for mitigation before increased mixed
use is invited to the street.
Sidewalks:
Sidewalks are the standard application for accommodating pedestrian travel on a
street in the urban setting. Sidewalks separate pedestrians from vehicles for
very obvious safety reasons. The absolute minimum width for a two way
sidewalk is 4 feet where travel is very light, and 5 feet to accommodate
appreciable two way foot traffic. Where narrow sidewalks are used, they should
be separated from the curb by a planting strip. This generally results in an urban
section with a raised curb.
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EDWARD STEVENS & ASSOCIATES
ENGINEERS. INC.
. Mr. Les Powers
June 7, 2004
There is a two foot wide concrete strip along one side of Heron Drive. This is not
a sidewalk, and will not accommodate pedestrian travel. Pedestrian travel is
therefore forced into the traveled lanes of Heron Drive.
Pedestrian travel is a recognized necessity to appreciate the amenities of the
Ludlow Bay Village area. The danger of forcing mixed travel modes in the
narrow and deficient geometric width of Heron Drive, as well as the liability that
may accrue to the designers and owners of these facilities if an accident should
happen, should be carefully assessed and mitigated in the environmental
documentation for the Port Ludlow Resort Plan Revision. I could not find where
this issue was mentioned, except possibly in Section 1.7 "Significant Issues for
Consideration." In that section, possible impacts were posed only as a rhetorical
question.
Bicycle accommodation:
The standard for one way bicYcle travel is a five foot width lane, separate and
apart from the travel lane for motor vehicles. As noted above, AASHTO
recommends a minimum of a 14 foot paved lane on low volume roads. This
results in 9 or 10 feet for vehicular passage, and 4 to Sfeet for bicycle passage.
This is considered acceptable for light bicycle use in rural areas.
The minimum standard for two way bicycle travel is an 8 foot wide path. Ten feet
in width is desirable for moderate to heavy use.
Nothing like the above minimums exist along Heron Drive. Instead, all modes of
travel are forced into two paved lanes that measured 21.6 feet across both lanes
when I made my field trip to the site.
Handicap accommodation:
Handicap accommodation is a very important consideration where pedestrian
routes are created in public places. The final design for Heron Drive should be
reviewed for conformance to the Americans With Disabilities Act and its
implementing regulations. It is a very poor idea to do nothing, and therefore
expect the handicapped to mix with all other traffic modes on this narrow,
substandard street. The liability implications of this for the owners and designers
should be obvious.
A few thoughts on Highway Standards:
Standards and codes are developed to provide public safety, convenience of
use, and to enable enjoyment of life. Most of the codes and standards are based
upon experience from human loss and suffering. For instance, fire escapes are
LOG 'TEM
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EDWARO STEVENS & ASSOCIATES
ENGINEERS, INC.
Mr. Les Powers
June 7,2004
required in multi-story buildings for safety. Many lives had been lost in multi-
story building fires before uniform escape route codes were enacted.
Then it was realized that a fire can spread so fast that fire escapes can be
rendered useless, due to heat and smoke. Sprinkler systems are therefore
required in multi-story buildings, to suppress fire until occupants can escape.
This is all based upon unfortunate human experience.
The same is true of highway and street standards. Experience has taught that
certain widths, radius criteria, clear zones, and other geometric features
contribute to and promote safe, efficient transportation. These criteria are
generally codified as standards for design.
Such standards must not be liahtlv dismissed. They are adopted as law and/or
recognized operating procedures by the various government agencies in charge
of highway and street construction and permitting. Variances should be granted
only when it can be shown that there is a compelling reason, and safety will not
be compromised. The geometric design of Heron Drive falls short of both state-
wide and nationally recognized criteria. There does not appear to be any
compelling reason for lack of adherence to standard.
The argument may be proposed that Heron Drive is not a publicly owned road,
therefore not subject to the aforementioned standards. There are, however, no
separate standards of good practice available except AASHTO, Washington
Department of Transportation, Americans With Disabilities Act, and Jefferson
County adopted standards, and other industry-recognized standards. There is a
duty on the part of the developer to create a safe environment, and a duty on the
part of Jefferson County to see that a safe environment is designed and
constructed. The safety of the final plan can only be judged by adopted industry
standards and applicable laws.
Analysis that I have not done:
1. Daily traffic volumes for interior roads that will be impacted have not been
calculated. These volumes should be shown in the traffic impact analysis,
both for the base, or do nothing condition, and for each proposed
alternate. Traffic impacts due to implementing revisions cannot be
assessed or estimated without this information. It is the responsibility of
the proponent to provide this as part of the impact assessment.
2. I have not attempted to estimate pedestrian use or bicycle use for Heron
Drive, or any other interior road. This too is the responsibility of the
developer, and necessary to identify impacts to the built environment.
3. The Draft EIS does not appear to clearly identify the location of new
planned versus existing housing units. I have not attempted to make that
LOG 'TEM
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Page ll'b of _..
9
EOWARD STEVENS & AsSOCIATES
ENGINEERS. INC.
Mr. Les Powers
June 7, 2004
determination, believing that it is the proponent's responsibility to make
the distinction clear.
4. I have not studied why setbacks were allowed to be only 4 feet from the
edge of travel way to the face of garages. The documentation offered
cites only "USC" as the setback distance. USC setbacks may change
from time to time, I have not researched them, and do not know what
revision may be referred to. I believe that the proponent needs to specify
what the setback distance is in feet, so that disclosure is complete and
easily understood. If the setback to building face is less than the clear
zone distances mentioned above, it should be justified in the face of
obvious safety problems created by backing maneuvers and dart-out
problems discussed above.
5. I have not evaluated the adequacy of a cul-de-sac that is proposed to be
placed at the new end of Heron Drive. I could not find geometric details of
this feature, so it is not possible to evaluate it.
Possible solutions:
In my opinion, Heron Drive most likely needs to be re-engineered to
accommodate changes in travel mode and volume associated with the 2003
revision. Studies need to be conducted to accurately identify and mitigate
impacts. Steps in this process may include:
1. Identify traffic volumes by each travel mode for the interior roads. This
needs to be done for the base condition and for each proposed
alternative.
2. Review standards for construction to accommodate each mode and traffic
volume.
3. Identify impacts. Impacts will be an assessment of change brought about
by the difference between the base condition and the alternative condition
being considered.
4. Produce a listing of improvements to mitigate the impacts identified above.
5. Provide a review opportunity for affected parties, per SEPA requirements.
A possible outcome of this study might be 10 foot minimum setbacks to garage
faces from the edge of lane, 5 foot sidewalks on both sides of the road with
handicap access features, and a 28 foot wide minimum paved width to
accommodate light mixed bicycle use along the roadway. On-street parking
would need to be prohibited under this scenario.
Conclusion:
In conclusion, I find that Heron Drive is constructed to an inadequate standard to
safely accommodate mixed use travel. In my opinion, there is considerable
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EDWARD STEVENS & ASSDCIATES
ENGINEERS. INC.
Mr. Les Powers
June 7 I 2004
impact to the neighboring built environment as a result of increased residential
density and imposed travel patterns created by parking arrangements.
As a reviewer, it is not my responsibility to complete the Draft EIS. My review
indicates, however, that the adequacy of disclosure for impacts and mitigating
measures concerning roads interior to the Ludlow Bay Village Plat is lacking in
the Draft. This subject needs to be considered by the proponent and made
available for review as part of the SEPA process prior to adoption by Jefferson
County.
The existing owners abutting Heron Drive and future owners and visitors to the
area deserve the orotection of infrastructure that meets adopted standards in
accordance with existing laws and regulations. SEPA approval should be
withheld until impacts can be fully assessed and mitigation can be agreed to by
the interested parties.
Sincerely:
EDWARD STEVENS AND ASSOCIATES, ENGINEERS, INC.
LOG\TEM
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..
Name:
Address:
Home
Office
Education:
High School
Junior College
College
Professional:
Technical Experience:
February 6, 1997 to
present
CURRICULUM VITAE
Henry 1. Borden, P.E., P.L.S.
Henry l(Hank) Borden
2207 Allen Road S.E.
Olympia, Washington 98501
606 Columbia Street N.W., Suite 214
Olympia, Washington 98501
Wishkah Valley High School
1958 - 1961
Grays Harbor College, 1962 - 1964
Graduated in Pre-Engineering
Washington State University, Bachelor of Science
Degree in Civil Engineering, May 1967
-Member, Land SlllVeyors Association of Washington,
Southwest Chapter
-Professional Engineer in Washington, Certificate
#13676
-Professional Land Surveyor in Washington, Certificate
#13676
Edward Stevens & Associates, Engineers, Ioc.
Transportation Engineering Specialist
Work at Edward Stevens and Associates involved preparation of
traffic impact studies, topographic surveying of streets and
highways, preparation of topographic drawings, analysis of
roadways for safety related issues, engineering report writing,
writing declarations, client interface, supervision of drafting and
technical staff I have provided expert testimony and given
depositions in court cases involving safety issues related to streets
and highways.
lof8
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8/92 - 2/97
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Skillings-ConnoUy, Inc., Project Manager and Surveyor of
Record for a consulting engineering and land surveying firm of
approximately 34 persoIU1el.
During my 54 months at Skillings-CoIU1011y, I was in charge of all
surveying for the firm. This responsibility included organizing,
directing, reviewing, and stamping of all land surveying projects,
including legal boundary surveys, plats, subdivisions, boundary line
adjustments, construction surveys, topographic surveys, writing
legal descriptions, section subdivisions, General Land Office
retracements, and other work.
Typical projects included:
Surveyor and Engineer of record for the Plat ofLoma Vista, a S9
lot rural subdivision in south Thurston County, the D.B. Story
Subdivision, a 53 lot subdivision in the City ofLongview and the
Plat of Noble Firs, a 28 lot subdivision in the City of Lacey,
Washington.
Surveyor of record for the Plats of Redwood Estates and King's
Court in the City of Olympia, and the Plat of Haussler Heights in
the City of Kelso, Washington.
Complete survey of Section 21, Township 30N, Range 3 West of
the W.M. and establishment of a wetland mitigation site for the
Washington State Department of Transportation. This project
involved section subdivision and General Land Office corner
retracement for the WSDOT Sequim Bypass Project.
Many topographic surveys for the purpose of street design, plat
design, site development, and miscellaneous design purposes.
Many boundary and lot surveys were completed during this time
period. Boundary line adjustments, short plats, large lot
subdivisions and planned unit developments were typical small
survey projects routinely completed.
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Construction surveys were calculated by myself or survey
technicians, field surveyed by field crews under my supervision,
and reviewed in the field by me. Typical construction surveys
included water and sewer line staking, road and street staking,
building foundation staking, lot boundary staking, as-built plan
surveys, surveys for easement preparation, and more. There were
no claims for inaccurate staking work in my 54 months with this
firm.
I also completed design of civil projects and performed project
management for a variety of private and public clients, including:
Washington Department of Transportation, Port of Tacoma, City
of Lynn wood, Washington Department of General Administration,
developers of private subdivisions, Lower Columbia Community
Action Council, miscellaneous site development projects.
Typical civil design projects that I personally completed as a
"hands on" project manager are:
Design of Work Zone Traffic Control (WZTC) plans for the
Washington State Department of Transportation's Olympic
Interchange project. I was certified by WSDOT as a Work Zone
Traffic Control Supervisor prior to completing plans for this
project. The certification was given by Sverdrup Civil, Inc., after
attending WSDOT's WZTC supervisor training seminar in the
spring of 1994. Sverdrup Civil prepared and taught the course for
the WSDOT.
Design and civil plans for a walking path at the Washington
Department of Labor and Industries Headquarters Building in
Tumwater, Washington;
Design and civil plans for three pavement rehabilitation projects,
including railroad track reconstruction at the Port of Tacoma's
North Intermodal Yard. Included field surveys, cost estimating,
and plan preparation.
I was involved in promotional work for the firm, including
preparation of proposals for civil projects, project scoping and
estimating, attendance at job interviews.
I also completed grant applications for public funding of
transportation projects for client agencies.
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6/67 - 8/92
Twenty-five years and three months with the Washington
Department of Transportation with general duties as outlined
below:
7/84 - 8/92
System Evaluation Supervisor
I supervised a headquarters section involved with the following
work program:
-Highway Performance Monitoring System.
Modeling the state's highway system in terms of performance and cost.
-Conducting legislative and other types of special studies.
.Monitoring and updating the system of statewide highway functional
classification.
I worked on the State Legislature's Route Jurisdiction Study, a
study to refine the definition of State Highway, and to recommend
route changes between State and Local Agency jurisdiction to be
consistent with the refined definition of State Highway. This study
resulted in the transfer of hundreds of miles of roads between state
and local jurisdictions.
I worked on the Federal Highway Administration's Highways of
National Significance Study. This study was conducted for the
Federal Highway Administration by the States for the purpose of
conforming to the revised Highway Program mandated by the
Surface Transportation Act of 1991.
I learned state-of-the-art computer techniques for modeling
highway systems for performance characteristics while working
with the Highway Performance Monitoring System. This is a
modeling effort done by all 50 states for the purpose of producing
the Federal Highway Administration's annual report to the
Congress entitled "The Nation's Highways--Conditions and
Performance". I wrote and distributed two publications for local
agency use during this time period, entitled:
"Short Count Factoring Guide", a guide book of recommended
practice for local agency traffic counting programs,
"The Highway Performance Monitoring System--Facts and
Figures", an informational publication of highway statistics and
cost analysis for the State of Washington.
Training taken through WSDOT included management and
personnel relations courses, and the following WSDOT technical
courses:
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.Legal Aspects of Highway Engineering, a WSDOT contract
course led by Michael Duggan of the King County Prosecutor's
Office.
.Beginning and advanced Highway Capacity Manual courses.
.Quick Response Travel Estimating Techniques, utilizing QRS
software for producing traffic estimates for spot developments.
10/78 - 6/84
Assistant District Materials and Project Engineer
I was responsible for the day-to-day operations of a District
Section doing soils drilling, foundation analysis, materials
quality control, minor plan production, design surveying,
and construction inspection.
The duties consisted of production of strip maps for minor
design projects, including curve realignments, intersection
upgrade projects, and paving projects. These projects were
field surveyed, mapped, and designed under my direct
supervision.
I designed a system of estimating project costs for the
District Three pavement rehabilitation program. This
involved scoping all paving projects for the district's
biennial program, including evaluation of deficiencies,
identification of safety hazards, and costs to cure. The end
product was a scope of work for contract plan production
purposes, and an associated cost estimate to complete the
work. I did this work for three years while I was in the
District (now Olympic Region) Office.
I evaluated pavement defects and produced resurfacing
reports for pavement rehabilitation contract production for
the district design program.
Conducted soils slope stability investigations, and
recommended solutions to our Headquarters Soils
Engineering Group.
8/77-9/78
Assistant District State Aid Engineer
Duties as Assistant District Three (now Olympic Region)
State Aid Engineer included administration of Federal Aid
pass-through programs to the Cities and Counties of the
seven northwest counties and cities within those counties.
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Federal Aid programs I worked with were Bridge
Replacement, Federal Aid Secondary, and the various
sections of the Federal Aid Safety Program, including
Railroad Crossing Upgrade Program, Safer Off System
Program, Hazardous Intersection Program and the
Pavement Marking Demonstration Program. J issued calls
for prospectuses, evaluated and graded prospectuses
according to criteria fonnulated by headquarters offices, set
up reimbursable accounts for the projects, administered
payments oflocal agencies, and assisted the Federal
Highway Administration with inspections and
documentation requirements.
6/76-7/77
I worked as Assistant to the Project Engineer in a major
location and design office. This office specialized in large
projects requiring Environmental Impact Statements:
-Port Townsend Feny Terminal Site Study - I scheduled,
directed, and managed day-to.,day operations for this multi-
disciplinary study leading to the recommended location for the
present Ferry T enninal in Port Townsend. This study
developed alternative designs and cost estimates for feny
terminal sites, and also conducted an intensive public attitude
survey in the area to assess public desires and community
visions for the project. Public hearings were held, and
questionnaires were written, circulated, and evaluated.
-Trident Base Access Study, Kitsap County - I scheduled,
coordinated and managed day-to-dayoperations for a multi-
disciplinary study of design alternatives and environmental
impact studies leading to a recommended design and EIS for
the new State Route 3 access to the Naval Submarine Base,
Bangor. I organized and managed this study from its inception
to a point where the design and limited access hearings were
ready to be held. This study included a citizen attitude survey
conducted by questionnaire.
-Tacoma Spur Study - I finalized the citizen participation
aspect of this environmental impact statement, including
evaluation of alternative designs. The study resulted in what is
now Interstate 70S in Tacoma.
.SR 167 Environmental and Location Study - I supervised the
final environmental impact statement and contract plans for
the section of SR 167 from Puyallup to the King County line.
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I worked in the Aberdeen field office of Washington Department of
Highways under John Hart, Project Engineer. I was promoted from
Highway Engineer 1 to Highway Engineer 4 in this office.
I gained a solid background in Highway Engineering in this nine
year period, including surveying for right-of-way mapping,
surveying for construction projects, including bridge and roadway
layout and staking, slope staking, river channel realignIIlent staking,
surveying in tidal zones and topographic surveys for highway
development projects. I estimate that I spent three years solid in the
field in personal charge of field survey work. The remainder of this
period always included scheduling and designing a wide variety of
surveys, doing office computations for survey work, and turning
out finished survey projects. Field surveys and office computations
for contractor pay quantities were a routine part of work in this
office, for the entire period that I was there.
I qualified to sit for the Land Surveyor's Examination based upon
work done in this office in right-of-way mapping, boundary surveys
for highway construction projects, construction pay quantities, and
became a Licensed Land Surveyor in 1979.
Significant projects included:
eProject inspector for the Shelton Bypass. I was the Department's
lead inspector and surveyor in the field for this new five-mile section
ofSR 101 bypassing the Town of Shelton in Mason County. This
project included four bridges, three channel changes, three
interchanges, and several, miles of frontage road construction. I was
responsible for all field staking, right-of-way staking, inspection,
contractor relations, and pay quantity calculation for this project.
eProject inspector for the Aberdeen-Hoquiam one-way couplet, a
major realignment and construction of a one-way street system in
the Cities of Aberdeen and Hoquiam. I was responsible for all field
staking, inspection, contractor relations, and pay quantity calculation
for this project. I was the survey party chief and surveyor for
construction staking on the twin SR 107 overcrossing bridges on SR
12 near Montesano, and the lift span structure across the Hoquiam
River at 6th Street in the City ofHoquiam
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I served as Office Engineer for this office for a period of
approximately three years. Duties included organization of office,
supervision of design projects, calculation of pay quantities for
contract work and production of contract plans for general highway
work.
As a staff Engineer for the Aberdeen Hoquiam Expressway Study, I
evaluated alternative designs, prepared presentations for the
citizens' advisory committee, and the interdisciplinary team assigned
to the study. I supervised field operations for a citizens' attitude
survey by questionnaire, and organized day-to-day office operations
for the study. This was a preliminary study for the anticipated
construction of a new expressway through the Cities of Aberdeen
and Hoquiam. This study is still underway, in one form or another.
There were many minor to medium projects worked on during this
time period. They are too numerous to mention, but project types
included bridge site mapping for replacement, surveys for pavement
rehabilitation, safety item installation, contract plans for the Elwha
River Bridge and approaches, river erosion control projects, paving
projects, safety design and construction projects, slide correction
projects, and more. These projects typically involved work in both
design and construction phases.
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JEFFERSON COUNTY> Board of Commissioners> Ordinances> 1998 > 10 121498
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memorandum
DATE:
TO:
FROM:
AUiuu2S,1998
Board of Couucy Commi$Sionen
AI Scalf, oeD Diree.tor
Long Range PlaMinS Staff
RE:
Part Lildlow Muter Plllnned Resort
Rcp(tS~nillti"e$ from the County m~t with Olympic Rc.~u(cc~ Managi:lllcllt on $c'tccai occ:a$iofls
l'Ccenuy 10 discuss the inlerim regulations for IheP'01'l Ludlow Mas~e.r Planne\1 R~01'I. ORM ba
SiJbmin~ d~ft legulJllioos. And, while thcE>l2.l1flinS Sl.5ffhas worked to rdelve issues with ORM.
many "$1.1<1$ remaiounresolved. The Planning ilafflus revised the ORM pr<lpO'sed draEi {O
producClhe. atucncdillterim Teguladon$ that the Plannins staff is r<<ommending to the BOCC for
lIdoption under the emersency Interim C.o:nuols ordina.nce.
A. MPRDe$l.:aatlon
The staffh:1$ reviewed tht re,suhuloos p.rop05ed by OR.\lllnd discll.ssca th(W i~sue.~ with CTED
sta-ff, SQ..t'f concerns rcsarding urban st.'Lndard$ aIld comm~r::ial u~es brolulcr than resort-related
U$C$ red 10 the d (5eU$SK;n with CTED. CTED raised qU"tilmS ttlwing tht s:im tlartt<:4trnC1l1 of
the VilllI.1: Commcwial CCllt\:t for tho MPR and tbe County's ltellUil'lent of Rural ViUageCentm.
bolh in terms of the range oruses,. and some uses that appw' to go beyondlhenccds of the
ruidcnts Ilnd the g\W$ts of the Mf>R. slIch as profcuional office 'buildil\g$. eTED ha-s st&ted tllilt
commercial arell$ of 8.n MPR should not a;;.commodlllc rCilonal shopping <<tiviti~ or
cmploymcol cenllm. 'C1'EO prQ-Vided the COUllty wilh twO policies for serious i:;(lr~ddcrilt1ol1.
1'be-K policies ar~ recommended-by stafffo-r indu$ion in the final Cl)mprehe!1.$ivc Plan..
St:tit' preSCfll's three QptiOltS to (hil nOCc (or its consicktnuion of this iU\le:
i<
2, Adopt tJlc de~lin.'ttcd MPR b<.xlndat)' llnd limit the ra\'lie ofoo-mmc:rcial uscs within the
YiU&&e Commcreial Ccnt.:!' e'()I'l:!listttlt wu:h the RCW langWl!C th4t "...w existing tc::lCrt may
includeotker permanent residicnt~'d u:>es. conftre>nce fa.etlities, And .rommertial acth'ities
supporting the- resOrt, but wrr.\' if thltSf' aUn:r U3es emf inugraffd into cmd cr;m.sJsl,"t witll the-Qll-
S;ltt rCCI'C'<1iioIJaIIlOlure of the reson!' RCW 36. iOA.:lt'i2[cmph.3.51s &cklcd]. If this option 15
$Cle<:lcd. $tAft'reeommen4t> etuln!!j[\g tb~ commllrcllll;r.tell di:si~;n~tlon frOttl Villllg~ Comme~i:J1
Center t<i RC$Orl Comml:fcilll Center.
J. Adopt the designated MPR boundary aian interim bout/dar)' 10 Keep t1tt Coumy'i OjlliOll.,'1
open, simlIatlu cOJ1'Jmcn;ial :in::lI.i$. Glen Cove. and the Mill. Con$idcTlhc two oplions llbove
throulllllhc Planl\lni Commt>>ion publ i-c pro::cn,. ill a timeline thu-aUowr. for stllff l'escar.:b and
d~~'ciupmenl or Q:pliQm... Inclu-de policies in the Land Use and Rural elemellllo fcsolve this issue
LOG 'ITEM
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EFFERSON COUNTY> Board of Commissioners> Ordinances> 1998 > 10121498
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consisunt with lhc RCW.II$ \OIell is the 'Cj\tcnIIO which "1Uban" development ~ occur".and !he
~tent that urban development can be allowed under !he il~tule. BasC'd on the di$;uuion with
<..LED over impl4.m.!Illing I't:gulatians, stafr lias questions whether the entiJl: Putt Ludlow
community illl>utd btt inCluded undc-r the MPR deaignation, or whether lhe it is, ill filet. no
different from Kal.. Poinl or C,;tp<: George, c:(1:Cpt for the nearby rtWtt complex. The: Interim
Conll'ols ordin.lllc;c will limit usenn"" sbnd.uus b>' <1 revision of thcstaff draft of Se<:tioo 18.
Pl~ning starr prcj~r5 option ~ j,
B. 'Interim CDntl'1lb
The 513ff.recommlloocd vCl'lIioo Qf Section III ,,mYi:rs from (ltc II1terim rcguloltions proposed by
OR...'\-l for the follOWIng rCUSQlU;
I. IClI1!:rim COfitto15 ate ilc-optcd by emergcnc:)' ordinanc:~. prC(;lllding flLmnin;; Commi:l$lon
reyilfW ami \!l(ten$iv~ public discumoo. The Jeiula.liu-roS pr:vJpoit-d by ORl'.-1 'Wuuld n:p~l:nta
5lpit1cant c!eparturt' from e~isting Cuunty regulations, \\lthillc\'el 01' detail mure appropnat'ClO
final devtll>pmel'l( tt$UliUlons" his apprcpnalt for tM interim to adopt limited regulations and lO
ucfet di$O:\lMion of the iignitlcltnt chltnSiIl$ until the prcce$$ of final dcvelOpment resuJatiofl$.
2, Tbe Mll.Stcr Planned Reiotl; mar includl:' srowth wbich ......mll)' eonstilutc urban gro...'th
olluide of urban ~rowth areas as limiu:d ~y this sl':ctkln:' (RCW 36.7QA.362) Under the
timeline$ (or adoption .of thcPllUllnd ~he imef\lII o:rdjUJ;l\i;If, the Planning ~t<lt'f cannot !'e$(WCh
urban $W\dlLtds and develop options for II nilm~r of ts5ues di:iC\l$5cd belQw. Staff recommcn<1s
that mallY of the "ur-ban'" standa.nb requt"stcd by ORJI.-l be addl'c-sscd In th~ procd$ fur final
d".....eh)pmcrn re.;ulatiollS.
J. RCW >1), 70A,J6tcit~1i aboYQ Ii lm1 hod by rcq"iTllr;ulpl$ that: "(4) TM CQunty find milt the
nlsonplan iscoosl$tcnt with \hI: dlt\'li:lopmli!l\tft~ulation$Ii:Wlbllsh<<l for critical areas; and (S}
On-'site and off.site infrutruttUft itllptttS Irc fully <:onsidercd and mitigalCd:'
The envlrtlM'IIi:l\lill ilnpllcts 00:>00 SGWlte foot loU. as well 4;li 90%. is% lUid 6/}~ lot
C(Nel'llige and the usoc;iated storm water drailUii! problems almtdy existing in poiliOM o(Pon
Ludlow r;rise q~$tiOin$ rqprdifII:J lIUow~ng soch uandards Qver tile cxrellt ofthe entire
eorrtmunity,r.r tll;in Iimititlg c.;esC! urfJan $tatt~~ b the tll$Orf area. It 1$ w~U- d<<\.l.memcd
that urbAn llt\'els ()f impervious S'utf~e signitic.tntly reduce tho prot<<:ioo cfwatcr quality lUld
tish !labirllt. In liibt of Sudan.lilted Species Act pf()po~d Ii$ting$, urlwsn i1n=aslln,': now rc;.
exomll'llog previO\lillly ik-'lCcpu:d"\ltb:m~ 1(.;'In<lardslhlt ~.a\'e <.:lIlIarly failed 10 protect fish habitat.
Pb.nnin~ stafCbas c;cncena ,egardillg C0l1si51ency with best ,av~ilAble science. and therefore with
j;lUll5 aFld poljcies of lhe COlllprcnenf>i\ic Pliln.
Th~ followjtl~ issues ate l1tni:log those tequestt-d i~rds :hi! mil)' fial be consincnt with
tne COnllHehensillc Plailthal is being a.d\:lpled and/or tequire fUl1ner djsclJ~slon:
· St'lyle family +or.e l111l>wir;s lHtachcd. ~olldominlum$tyle dwellings II> be permitted
c1.1lri.g.bt, and conditionally lIt1owir,g duplex. triplcx, and other mu,hiplc:<strucml'es.
IiIilh;a minimum kllllze M ,3500 sqll3re t'eet in ilfl ar1:i1loned;l: I. Le, I.\pp-roxima.tel)'
( I.OOl) sq ftper residence.
. U$e~ that n:qull"\: further ddinitj;:'fi. $uch as rcsort relau:d relaH, \'l4(:lltiow'dtnesharlOls,
Slrucnlir~d pllrking. tlnd eml-'loyce S\lppOI1 faciiilies.,
· CUlntnctelil uses tn.it may Mt ~ wpiX'tt[ve fo the resort (:Cfllpl,~\: .tad ma)'llct be
consiSlem wim slate law. lllld single tamily lt$1;$ in lht,; VilllIge COmlllllr'1.:ilIJ Center.
. Till: Hst ofll$cs Sl.!!fSe$led far a]\ areBS.
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JEFFERSON COUNTY> Board of Commissioners> Ordinances> 1998 > 10 121498
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. LOI covc"'iC'$of 60~. 75% and 90% over Iarse &rc:a$.
. Clasit'iclItion Orlne narul'C oHorest managcmcnuctivilic-s.OO other uses in Op:n
Span areu and the perpetuAl $WU$ efthe Open Space.
. M.l.ximum building sizcs in sc,,'cnl areas.
. Heisht O\I~nec of 6S fect tnat may exceed fire "fely ~uin:ments.
4. Plannln; staff hu con<:cms that adoptionoi the "'urban" S;M.dards r<<juC$lcd could result in
new sisnit1cant l)d,1i~$e, impacts to !he envll'OMlcntl.hat wert not add~~ in the DEJS Ot me
fElS of the Comprcllensivc P 1M. Adoption of these sw-Al.vd. wculd require II supplemental
fE1S to address the impacts of thcu ~"'elopmcnt standards. Th i~ would delay lIdoption of the:
Clllnprchcf1Sivc Phlll.
S, The ORM propo~ appun; too vary in significantly from ~ original M;utet Plan foc thi: Pel1
Ludlo..~w Resort. If !.his 1$ tbe case. ~ Mll.$tcr Plan should be rC'f'iied :lndsubmittcd to the County
with approprial':: environmental doc:umcntsprior to a.pproving an)' change tot.1e internal
c.ontisurlllion oftbe Muter Planned Resort.
6. While OR.\1 has cxpl.:lined th~ these n:gul1ltions b1t.\'( been de~'cloped and te'iicwcd In an
eX.lcn~iyc public: process within the MPR,.th4t pro~~$ C;\)lt!lot sub~tiMe fOt the Count}"s pllblic
prQC:C$s, whj,ch Illcludcs the Planning Commi$$~on and !.he pllolle c:ount)'Whk Adoption oJ
"wbanw standards in an C!llc:tg..:nc)' ordiuan<<: that lacks II fult pub.lic process is \lot n:eommended.
st4jJ Rec~mml!"d4iliOlt:
It is the ,oal of Iheflannios $tlffU) produce fot the SOCC a legally defensible- Compre:hl:ll$ive
Plan for lldoprion on Augusl28. 1998. !\Of only in terms of C"-Omisteoc:ywith the G~b
Mana&cmcnt Ai;t, but.bo in wrms of intcmldPlanooll$is:.enc;y and public pt\lC'CS$. The l:>hlftlling
$tIff moonuntmb u.crpm.a Section 1 S A5 ~vi~ by the SUitt and encollr3ging OR.M to fully
panicipllto in the final ~'elopmC11t rcgl.dation process O'Icr d1c next 6 months. whit-h wiU il'lClude
l'I rC'f.iew of \he rtiuh1tiM-s proposed byORM and Ilndol'$eo by PM Ludlow e:mtmut!ltyp4annkng
group$.
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STATE OF WASHINGTON
DEPARTMENT OF ECOLOGY
PO Box 47775 . Olympia, Washington 98504-7775 . (360) 407-6300
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October 25,2004
Mr. Al Scalf, Director
Department of Community Development
Jefferson County
621 Sheridan Street
Port Townsend, W A 98368
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Subject: Port Ludlow Lagoon
Dear Mr. Scalf:
Thank you for your patience as we have all worked towards clarification on the issue of the
Shoreline jurisdictional status of the lagoon located in Port Ludlow Village (Port Ludlow
Lagoon). I appreciate the time you have taken to work with us. Our meeting, and the
meetings with others in your community, has helped us put this issue into perspective. It is
our opinion that the Port Ludlow Lagoon is covered by the provisions of the Shoreline
Management Act (SMA, Chapter 90.58 RCW) and the Jefferson County Shoreline
Management Master Program (SMMP), including the prohibition on over-water residential
construction (SMMP, 5.160).
The basic premise of our opinion is that the Port Ludlow Lagoon is within 200 feet of the
ordinary high water mark (OHWM) of Ludlow Bay, a Shoreline ofthe State. The strength
of our conviction, however, is based on a broader set of facts.
Background
"Shorelines" are defined as - "all of the water areas of the state, including reservoirs, and
their associated shorelands, together with the lands underlying them; except (i) shorelines
of statewide significance; (ii) shorelines on segments of streams upstream of a point where
the mean annual .flow is twenty cubic feet per second or less and the wetlands associated
with such upstream segments; and (iii) shorelines on lakes less than twenty acres in size
and wetlands associated with such small lakes." (RCW 90.58.030(d))
"Shorelands" or "shoreland areas" are defined as - "those lands extending landward for
two hundred feet in all directions as measured on a horizontal plane from the ordinary high
water mark; .floodways and contiguous .floodplain areas landward two hundred feet from
~,.
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such floodways; and all wetlands and river deltas associated with the streams, lakes, and
tidal waters which are subject to the provisions of this chapter; the same to be designated
as to location by the department of ecology." (RCW 90.58.030(f))
The Port Ludlow Lagoon is a "water ofthe state" under Chapter 90.48 RCW (Water
Pollution Control Act). "Waters of the State" are defined as - "lakes, rivers, ponds,
streams, inland waters, underground waters, salt waters and all other surface waters and
watercourses within the jurisdiction of the state of Washington." (RCW 90.48.020)
The policy ofthe SMA states, in part - "It is the policy of the state to provide for the
management of the shorelines of the state by planning for and fostering all reasonable and
appropriate uses. This policy is designed to insure the development of these shorelines in a
manner which, while allowing for limited reduction of rights of the public in the navigable
waters, will promote and enhance the public interest. This policy contemplates protecting
against adverse effects to the public health, the land and its vegetation and wildlife, and the
waters of the state and their aquatic life, while protecting generally public rights of
navigation and corollary rights incidental thereto." (RCW 90.58.020, emphasis added)
RCW 90.58.020 states further - "Alterations of the natural condition of the shorelines and
shorelands of the state shall be recognized by the department. Shorelines and shorelands
of the state shall be appropriately classified and these classifications shall be revised when
circumstances warrant regardless of whether the change in circumstances occurs through
man-made causes or natural causes. Any areas resulting from alterations of the natural
condition of the shorelines and shore lands of the state no longer meeting the definition of
"shorelines of the state" shall not be subject to the provisions of chapter 90.58 RC-W."
WAC 173-22-052 Alterations of shorelines affecting designations, states - "Alterations
of the existing conditions of shorelines and wetlands of the state which affect the boundary
or volume of those water bodies, whether through authorized development or natural
causes, shall warrant a review of the designation of those shorelines and their associated
wetlands." This letter is a response from that review of this waterbody.
RCW 90.58.900 states - "This chapter is exempted from the rule of strict construction, and
it shall be liberally construed to give full effect to the objectives and purposes for which it
was enacted." In simple terms, this means that in areas of uncertainty we must give
deference to the protection of the resource.
The Jefferson County SMP states in 5.160, Residential Development, Prohibited Uses and
Activities - "Residential Structures located on or over marshes, hogs, swamps, lagoons,
tidelands, ecologically sensitive areas or water areas subject to this Master Program."
Discussion
Several issues are relevant in our determination that the Port Ludlow Lagoon is under the
jurisdiction of the SMA; these have also been raised as argwnents against such a
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jurisdictional determination. These issues include the artificial nature of the lagoon, the
limited value of the lagoon as habitat, and the continued alteration of the character of the
lagoon.
There is a claim that the lagoon is an artificial feature, a landscape amenity, rather than a
natural water body. There is no distinction in the SMA for excluding artificial water
bodies from Shoreline jurisdiction. The definition of "shorelines" specifically includes
reservoirs, clearly indicating that artificially constructed bodies of water are covered under
the SMA. The exclusion of artificially created wetlands (90.58.030(h)) does not apply in
this case. First, the exclusion is limited to artificial wetlands created from nonwetland
areas. Historic maps and photographs of Port Ludlow show the progression of
development of this area that included the diking and filling of the upper tidal portion of
the bay to create the land area that now includes the Port Ludlow Lagoon. The lagoon was
not created from a nonwetland site. Second, the lagoon does not meet the statutory
definition of a "wetland." While there are areas around the fringe of the lagoon that
contain wetland vegetation, have wetland soils, and enough water to be considered
''wetland,'' the lagoon itself does not meet the three-parameter test for jurisdictional
wetlands (see WAC 173-22-080, Wetland Delineation Manual). The lagoon functions
more like a subtidal marine system because of the water depth and permanent inundation
(Cowardin, 1979, Classification of Wetlands and Deepwater Habitats of the United States).
Finally, the exclusion of a water body as a wetland does not mean the area is not a water of
the state (WAC 173-21A-020).
We recognize the fact that the lagoon and the natural condition that originally linked the
lagoon area with Port Ludlow Bay have been repeatedly altered over time. However, this
alteration does not eliminate the site from Shoreline jurisdiction. Weare directed to
recognize alterations to the shoreline; e.g., if authorized fill changes the OHWM of a
shoreline or eliminates an associated wetland from jurisdiction, then those changes are
reflected in future SMA decisions. That recognition also means that if SMA jurisdiction is
expanded e.g., through the removal of historic fill along a shoreline, then the OHWM gets
pulled back to recognize the "new" shoreline boundary. Partial fill in an associated
wetland would not result in the entire wetland being eliminated from SMA jurisdiction,
only in the recognition that the boundary of SMA jurisdiction has changed.
It is our opinion that the Port Ludlow Lagoon falls within the scope ofthe prohibition in
the Jefferson County SMMP for over-water residential construction (5.160). Specifically,
"Residential Structures located on or over marshes, bogs, swamps, lagoons, tidelands,
ecologically sensitive areas or water areas subject to this Master Program." While this
body of water may not be a marsh, bog, or swamp (i.e., a wetland), it is certainly a lagoon;
which Webster's Dictionary defines as - "A shallow body of water, esp. one separated
from the sea by sandbars or coral reefs." Two culverts maintain a connection between the
lagoon and Port Ludlow Bay; one culvert has a functioning tide gate, the other is an open
pipe with a bottom elevation located approximately 0.10 above mean higher high water
(MHHW). A strong case could probably be made for the lagoon as a tideland because 0.10
feet above MHHW would still get fairly fretuo(:g-'fr~lUPation. Finally, the lagoon is a
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"water area" within SMA jurisdiction and, therefore, subject to the Jefferson County
SMMP.
Conclusions
While not fitting neatly into readily available definitions, the lagoon is certainly a body of
water within SMA jurisdiction. RCW 90.58.900 directs Ecology to interpret the SMA
liberally to ensure full protection of shoreline resources. This requires a more inclusive
interpretation of the prohibition, rather than a more restricted interpretation. The limited,
or degraded, value of the lagoon as fish and wildlife habitat may mean that it should not be
considered as an "ecologically sensitive areas," but it is still a lagoon, and it is still a water
area. There are no. qualitative limitations on those phrases.
The Port Ludlow Lagoon is a water of the state, and it is in SMA jurisdiction. The
department of Ecology does not believe that over-water, residential construction is an
allowed use under the Jefferson County SMMP. We do believe, however, that there are
solutions to this situation. We would be very willing to evaluate any project alternatives
that may be proposed by the Port Ludlow Association.
I hope this letter brings some clarity to this issue. Again, I appreciate the time and effort
put forth by you and others at Jefferson County to resolve this question. Please feel free to
ask for our assistance at any time as this issue moves forward. I can be reached at 360-
407-0271, Jeffree Stewart, our Shoreline Specialist, at 360-407-6521, or Perry Lund at
360-407-7260.
Sincerely,
~~
Paula Ehlers
Section Manager
Shore1ands & Environmental Assistance Program
PE:PJL:dn
copy: Marco de Sa e Silva, Davis Wright Tremaine
Carol Saber, Port Ludlow Village Council
Linda Hoffman, Ecology
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