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HomeMy WebLinkAboutExhibit257 Lewis J. Hale 10552-15th Avenue Northwest Seattle, Washington 98177 (And 28 Heron Rd., Port Ludlow) 206-365-1072 206-226-4947 c~J~\\) ~ \~~1 \)tt ~\\~\\ ~~\\~\~~ '\,~~~ Only Submitted Electronically by email December 14, 2007 Mr. Phil Olbrechts Jefferson County Appeal Hearing Examiner c/o Jefferson County DCD 620 Sheridan Street Port Townsend, W A 98368 Dear Mr. Olbrechts: Re: Rebuttal and Closing Comments Port Ludlow Resort Build-Out and Marina Expansion Project Hearing Examiner Decision ("Decision") Port Ludlow Resort Build-Out and Marina Expansion Project Hearing Examiner Reconsideration Reference File No. MLA05-00407 (Major Resort Plan Revision, ZON03-00044; Shoreline Substantial Development Permit, SDP05-00019; Boundary Line Adjustment [BLA], SUB05-00030; and Administrative Code Interpretation, ZON05-00035) Date of Decision: February 7, 2007 Date of Reconsideration: March 14,2007 Date of Reply Brief: November 29,2007 Date of Appeal Hearing: December 6, 2007 The following are my comments in rebuttal of the testimony by both PLA and Jefferson County as well as my closing comments. Rebuttal comments: Attached Town Homes in the RC/CF Zone are a Single Family Use Subject to Single Family Development Standards I suggest the following step by step analysis provides the correct answer, that the town homes, both proposed and existing in the RC/CF zone are a single family use: lOG 'TEM # .~51 Page~ \ of--1- Phil Olbrechts December 14, 2007 Page 2 of9 1. 2. Section 3.40 of the MPR Code regulates structures in the RC/CF Zone. Section 3.402 contains a table on page 12 that lists permitted and conditional uses and both single family and multi-family uses are permitted outright in the RC/CF Zone. Section 3.405 addresses the bulk and dimensional requirements in the RC/CF zone and states that the single family requirements are contained in Section 3.1, with the important clarification that "conditional use approval shall not be required for single family attached development". It then notes that multi-family structures are subject to the requirements of Section 3.30. Section 3.103 defines single family attached; "For purposes of this Ordinance (emphasis added) "single family attached" shall mean a townhouse style or side-by-side development, not stacked units". Note that this applies not just to the section, but it applies to this ordinance, obviously referring to the entire ordinance or MPR Code. The codified version of the MPR Code states that this definition applies to "this Title," i.e., Title 17 JCC. JCC 17.10.030(3). There can be no other interpretation than that a town home in the MPR (not just the RC/CF) is a single family use. As a single family use, we look to Section 3.105 for the Single Family Bulk and Dimensional Requirements table, where the 20 foot setback from the road is clearly shown. To further confirm that attached town homes are a single family use, one can double check the regulations for the Multi-family Zone, Section 3.3, where there are several references to Single Family Attached. The first is in Section 3.302 Permitted Uses, item 6 which lists "Single family attached (townhouse style) or detached dwelling units" as a permitted use. This provision merely permits single family uses, either attached or detached in the Multi-family zone. Nonetheless, it does effectively reconfirm that townhouse style units are single family attached, even in the Multi family zone. Section 3.305 covers the Bulk and Dimensional Requirements within the Multi-family zone and here again there is confirmation that single family attached development is subject to the single family bulk and dimension requirements of Section 3.1, even when located in the multi-family zone: "Single family residential uses are subject to the requirements of section 3.1; provided that the conditional use approval shall not be required for single family attached development." There are several communities within Port Ludlow comprised primarily of single family attached units, and ALL are platted based on the single family bulk and dimension requirements. For some reason it is only with RC/CF zone that there has been "confusion." However, as noted at the hearing, the technical permit staff at DCD got it right not once but twice when they issued permits for buildings 400 and 700. These buildings were constructed approximately two years apart and both permits required a 20 foot front setback. One must ask, if the permit for building 400 was in error, why was it not corrected for building 700? I think the above discussion makes it clear that the permits were correct. 3. 4. 5. 6. 7. LOG ITEM 9s7 \?- of # Page. PhilOlbrechts December 14, 2007 Page 3 of9 PLA Incorrectly Applies Sections of the MPR 1. PLA argued in both its brief and at the hearing that MPR 3.102 regulates "single family detached dwelling units" and that MPR 3.103 regulates single family attached dwelling units only" . . . as part of new subdivisions." PLA misrepresents and misstates what these sections say and how they are applied. The MPR 3.102 is titled Permitted uses, Lot Sizes and Density. So this section does not regulate single family detached, but rather identifies what is permitted outright in the single family zone, including not only single family detached, but also trails and parks, accessory uses and structures and home based business. And MPR 3.103 does not regulate single family attached. It is titled Conditional Uses, Lot Sizes and Density and so deals with what is "conditionally permitted in the MPR-SF zone," More profoundly, MPR 3.405 which governs the bulk and dimensional requirements in the RC/CF zone, specifically states "Single family residential uses are subject to the requirements of section 3.10; provided that conditional use approval shall not be required for single family attached development" (emphasis added). As I pointed out in my November 29, 2007 Response to PLA's Brief, PLA's interpretation of these sections would result in town homes being prohibited on existing lots in either the SF or the RC/CF zone. It would not transform town homes into multi- family units. A Plat Alteration is Required PLA's arguments supporting the use of a boundary line adjustment are flawed. PLA's presentation regarding two lots "A" and "B," where they are being combined by changing/removing an internal boundary, is erroneous since what PLA is proposing does not just remove some internal boundaries within platted lots. What PLA is actually doing, is seeking to remove 28 town home lots from the town home plat within Ludlow Bay Village, for the purpose of detaching them from the restrictive covenants that apply to the town home plat and, in the process, avoid the requirements ofRCW 58.17.215. It justifies this on the basis that it is creating fewer lots. However, even PLA has admitted, correctly, that lots and parcels are synonymous and ifthe 42 new units in the resort core are anything other than apartments, it is creating more parceIs'and the exemption ofRCW 58.17.040(6) is not available. Boundary line adjustments adjust boundaries within a plat. Plat alterations alter a plat. What PLA is proposing alters the plat, and in the process negatively impacts the property rights of the existing town home owners under the guise of removing a few internal lot lines with a BLA. As was addressed at the appeal hearing, the town home plat is subject to CCR's and by removing the remaining 28 lots from the town home association there are very specific CCR's that are being violated and that will have an adverse impact on the owners of the remaining 25 town home lots. You will recall that PLA suggested that ifthe members of the town home association felt PLA was violating the CCR's, we could LOG ITEM # t)s~ Page .3 of Phil Olbrechts December 14, 2007 Page 4 of9 file suit against PLA. But, as discussed at the hearing, PLA has already provided the owners with a draft of its proposed changes to the CCR's, which effectively take away the rights in question. And as PLA noted, it has control of the various boards and the votes to do what it wants. I believe that MPR 3.903 and RCW 58.17.215 were enacted to provide property owners with protection in this type of situation. PLA does not believe MPR 3.903 says what it says. However, the plain language ofthis section is crystal clear. The first sentence states that when a permit is issued for new resort development, and requires that any existing, pending or vested development rights for projects, or parts or phases of projects which (1) have not been developed, (2) are located in the RC/CF zone and (3) are not included in the described Resort Plan must be released. As I pointed out in my November 29, 2007 Response to PLAts Brief, all three circumstances are present. The Plat of Ludlow Bay Village (the town home plat) is only partially developed. PLA Brief, p 3. It is zoned RC/RF. PLA Brief, p.4. PLA wants to eliminate the previously approved uses for the undeveloped portion of this plat and replace them with other uses. PLA Brief ~ II.F. The second sentence states that "For any subdivision that has been approved and recorded, but only partially developed, a plat alteration shall be applied for and processed as set forth in state law and applicable county ordinances." (Emphasis added). This provision was intended for the situation presented in this case. It protects property owners who buy into a subdivision with promises from a developer about what will be built, be it amenities, enough critical mass to support a homeowners association, or contractual obligations of the developer/declarant. More specifically, the primary reason that the provision ofRCW 58.17.215 regarding CCR's exists is to protect homeowners from exactly the situation now facing the town home owners. DeD Discretion on Applications One of my ongoing concerns has been the lack of supporting detail, a point also argued by other appellants. In this regard, you asked the county to provide the authority for the discretion it apparently exercised in deciding which requirements to enforce, and which not to require, even when technically required based on the code and/or county application form. I will be curious to learn what authority staff cites. LUPO (Ordinance No. 04-0828-98) Section 11(A) states that only the Director (not the Planner) may waive specific submittal requirements, and then only when they are "determined to be unnecessary for review of the application" (emphasis added) and "provided that the waiver is in writing and specifically states why the information is not needed." To the best of my knowledge from reviewing the log items, such a written waiver does not exist. If this is the case, the county erred in failing to require PLA to submit all of the application materials specified in the code and application forms. During the preparation of my original brief, I could not locate the original application for the resort proposal in the record, but I did find, as log item 33, a letter from DCD dated 6/26/2003 confirming a "substantially complete application." When I inquired about the actual application I was informed that log item 27, a PLA letter dated 6/25/2003, the day LOG lTElVi # ~5'7 Page-.:l_of_._ Phil Olbrechts December 14, 2007 Page 5 of9 before, was "deemed to be the application." If one reviews what the county apparently accepted as a complete application, one will find little if any meaningful detail to show exactly what is being proposed. The application (log item 27) falls short of the requirements ofMPR 3.906 and should not have been accepted. It certainly should not be approved. Additional Comments Below are brief comments regarding several of the points raised by PLA during its testimony: 1. When PLA conducted its "outreach" to the various community groups, the one group it did not meet with was the town home owners, the group most directly impacted by the revised resort plan both in terms of proximity and impact on the town home and village associations. 2. The applications are deficient, and even Mr. Berteig noted that he expected the final proposal would involve new applications. 3. The community is not responsible for PLA's financial success and should not be asked to forgo MPR resort facilities because of the developer's inability to make a profit at this time. 4. Regarding the completeness of the applications and disclosure that PLA intended the town homes and flats in the resort core to be condominiums, PLA contends this was always clear. However, it was neither in its application of June 2003 nor in the final proposal of September 2006. And obviously even Mr. Berteig was not able to discern this fact or his decision would have contained a condition similar to Admiralty III regarding compliance with the condominium provisions of the county code. 5. The fact that certain blocks were not checked on an application is not justification to ignore valid requirements. See, RCW 36.70B.030(5) and .070(2). 6. PLA made a comment during its discussion ofMPR 3.903 that it "was not trying to change the covenants". Obviously this was confusing since if that were the case why did it withdraw the plat alteration and propose a BLA? But then later PLA noted that concern over the ability to get approval from the town homes owners is why it opted to use a BLA. 7. PLA posed the rhetorical question of whether or not the Hearing Examiner erred in approving the BLA. As previously noted, I believe that the Hearing Examiner, like many of us, was unaware that PLA intended to build 42 units of condominiums. It seems obvious that ifhe understood the intention to build condominiums, then he would have understood that the proposal, rather than creating fewer lots, would actually create more, condominiums being parcels, and lots and parcels being synonymous. 8. PLA suggested that if the town homes owners were unhappy, we could seek injunctive relief. This suggestion is at best disingenuous considering that PLA LOG ITEM # 1S7 Page'.5 of__ Phil Olbrechts December 14, 2007 Page 6 of9 has already drafted changes to the CCR's removing the rights in question. And of course, since all town home directors are PLA employees and PLA controls the majority of votes there is no doubt that these changes will be enacted, absent the requirement of town home owner approval under RCW' 58.17.215. 9. PLA stated that the CCR's don't restrict the town home lots to town homes. This is incorrect; CCR 1.17, "Lot" shall mean any area of real property within Ludlow Bay Village designated as a residential town home or single family lot. . .". This of course is another problem with the BLA, since as approved, all PLA has accomplished is to combine the 28 town home lots it owns into fewer but larger town home lots. The BLA does not change the permitted use of these lots, being single family, or other restrictions of Ludlow Bay Village. Based on the CCR's, multifamily uses are not permitted on a town home lot. Thus, PLAts argument that it could simply switch to stacked flats if condominiums require a plat alteration is not only wrong-headed but just plain wrong. 10. The RC/CF zone permits multifamily uses subject to the bulk and dimension standards in the MF zone. The multifamily zone in MPR 3.302(1) allows "multi-family dwelling units including condominiums," suggesting that stacked condominiums are a multifamily use. (If they are side-by-side they would be single family). However, curiously, unlike the SF zone definition of "single family attached," MPR 3.302(1) does not state that it applies to "this ordinance," so the contrary argument could certainly be made. Assuming for the sake of argument that condominiums are a multifamily use, the fact that they are permitted in the RC/CF zone does not solve the conflict with the CCR's and the need for a plat alteration. 11. Contrary to PLA's position, BOTH Admiralty III and the 42 condominium units in the resort core are subject to Section 11 of the Subdivision Ordinance 04-06526-92 which governs Condominium Subdivisions and is incorporated into the MPR code. It is clear that PLA is attempting a fancy two step to avoid this ordinance. Further, its argument that the requirement for a condominium binding site plan contained in the Condominium Subdivision Ordinance is prohibited by 64.34.050 fails because of Strauss v. Sedro Wooley. 12. PLA suggested that the MPR Code is not perfectly written and then proceeds to create its own definitions by suggesting that "traditionally, attached units are multifamily and detached are single family". The problem is that MPR 3.103 is crystal clear that for purposes of the MPR Code, "single family attached" "shall mean a townhouse style or side-by-side development...". PLA has also argued this point using definitions from the UDC, but this fails because the MPR code clearly defines town homes as single family attached and the Port Ludlow Development Agreement states in 3.13 that the UDC definitions would only be available if the agreement "does not establish standards or requirements", which is not the case here. lOG ITEiVI # ') 5"7 Page---b._ 01 Phil Olbrechts December 14, 2007 Page 7 of9 13. PLA misrepresents the Lagoon. The original natural lagoon was smaller and was expanded several years ago during an earlier resort plan. The series of pumps noted by PLA is designed to maintain both a constant level and the water quality. This is why the water level does not change with the tides, but it is salt water and, therefore part of the bay. 14. PLA maybe correct that there has only been one accident on Heron Rd in recent years. However, our neighbor's car has been hit several times while parked (with the short stalls the cars "hang out" as much as four feet into the road depending on the size of the car). In discussing Heron Rd it is important to note that the original town home garages open onto either a cul-de-sac or the Inn parking lot. The issue is really with buildings 400 and 700 where the garages open directly onto Heron Rd., which is the main road to the Inn. And the traffic volume will only increase as the resort is built out. PLA suggested that we saw the road and setbacks when we purchased, which is true for building 400. However, we had not attempted to use the garage, had not experienced the traffic and lastly, legitimately assumed that it complied with county code and had been constructed to specification. 15. PLA argues that the resort, as it existed in 1998, constituted a Master Planned Resort and, therefore, it is under no obligation to add additional amenities. This makes no sense, since if that were the case why did the MPR code, negotiated by Pope with the county, include significant additional resort amenities/recreational facilities? We did not discuss this at the appeal hearing, but it was addressed in the original hearing, that the question of Port Ludlow's status as an MPR goes beyond the issue of not building new amenities. Since purchasing the resort, PLA has reduced the number of available rental rooms and convention facilities. When Pope first build Port Ludlow, all of the units in Admiralty I and II were designed to be rental units, with separate entrances to each bedroom suite. Pope also constructed the Beach Club facility, where we held the hearing, to serve as the recreational center for the resort. At the time PLA purchased Port Ludlow this arrangement was still active and many of the units were in the rental pool established by Pope. PLA has since terminated this arrangement, and there are fewer than 10 units that it still rents out to supplement the Inn for large groups. In addition, the conference center has been rented to a church. In the past it could accommodate groups of 150+, but not anymore. PLA talks resort, but that is not what its actions suggest. Its focus is unmistakably residential construction. 16. LMC Architectural Control. The CCR's governing Ludlow Bay Village are quite clear that the LMC has architectural control over the town home lots owned by PLA. PLA argues against this based on an incorrect interpretation that it is the successor declarant to Pope Resources. However, in Section 11 of the CCR's it is clear that LMC ACC comes into force "upon conveyance" from Pope Resources, which is what occurred when PLA purchased the lots from Pope Resources. LOG ITEM # 1-51 Page :1_ ,of,_,__ Phil Olbrechts December 14, 2007 Page 80f9 17. PLA is reluctant to address the Heron Rd and setback issues for obvious reasons; it will impact the number of units it will likely be able to build. However, concurrent with an alteration of the plat, it would seem appropriate to bring the entire plat into compliance. As previously noted, the road/setback issues involve buildings 400 and 700. Since the land across from these buildings is vacant and used as an unofficial parking lot, the setbacks and town home parking issues for buildings 400 and 700 can easily be addressed. PLA obviously would argue that this would mean it cannot build town homes across from these buildings. However, the reality is PLA would not be disadvantaged since it will merely be in the same position that would have existed if it had built according the MPR code and the building permits for these two buildings. Also, the area across from building 400 is designated to be a parking lot and only two units are contemplated across from building 700. The setback will provide room for safe garage access, off street parking and pedestrian walkways. Closing Comments In closing I want to reemphasize the following critical points: 1. The proposed resort plan does not satisfy the MPR Code. See MPR 3.4 and RCW 36.70A.362. The RC/CF zone is the core of the resort and is intended to support the recreational nature of the resort, NOT just to be another urban residential subdivision. 2. The applications lack detail and have been reviewed under the wrong code sections ifPLA intends to build condominiums in the RC/CF zone. See MPR 3.902(3) and Subdivision Ordinance 04-0526-92 Section 11. 3. The town homes in Ludlow Bay Village, both existing and proposed, are single family uses by definition and subject to single family developments standards. MPR 3.405 and 3.103, final sentence of item 3. 4. A Plat Alteration is required; the BLA does not and can not accomplish what PLA is attempting. RCW 58.17.215 and MPR 3.903. Requested Actions 1. That the proposal be remanded to DCD for compliant applications under the correct code sections covering a condominium in Ludlow Bay Village. 2. That a plat alteration rather than a BLA is required, that the CCR's are being violated, and, therefore, the agreement or approval of all owners is required. 3. Confirm that the MPR code defines attached town home structures as a single family use subject to single family development standards. Further, to require that the developer apply the single family development standards to BOTH the existing and proposed town homes, i.e, 20 foot front setback and two dedicated parking spaces. LOG 'TEM # Q.Sl Page_ ~ of Phil Olbrechts December 14, 2007 Page 9 of9 4. Require Heron Rd to be brought into compliance with the existing specifications for a 24 foot road width, i.e., 24 ft of drivable road surface. 5. Ensure that the developer is not permitted to substitute urban density housing for recreational/resort amenities in the resort core (RC/CF Zone). Given the designated uses specified in the MPR code for the RC/CF Zone, PLA must provide some recreational amenities for the purchasers of the proposed units. When Pope was developing Port Ludlow, even before the MPR designation, it built the Beach Club (owned by the LMC) for North Bay residents and the South Bay Club for South Bay residents. The new units are not automatically eligible for membership in the LMC. Therefore, in keeping with the stated purposes of the RC/CF zone and an MPR, PLA must be required to provide access to onsite recreational amenities, either through making arrangements with the LMC, or, being required to build a new recreational facility in the RC/CF zone for the use ofthepurchasers ofthe new units as well as the Inn and Marina guests. Respectfully Submitted, Lewis J Hale LOG 'TEM # Q. 51 Page -Lof..3.-