HomeMy WebLinkAboutExhibit262
January 14, 2008
Via Email
DAVID W. JOHNSON, Planner
Jefferson County
Department of Community Development
P.O. Box 1220
Port Townsend, W A 98368
RE: Appeal Dates
Dear Mr. Johnson:
Please request advice from Mr. Olbrechts on the effect of the motion for reconsideration
on the due date for judicial and board appeals. I agree that the language of Procedural
Rule 13(III) provides that a motion for reconsideration does not extend the due date for a
judicial or board appeal unless an applicable ordinance otherwise provides. I also concur
that L UPO Sec. 18 is silent both as to the right of reconsideration and as to its effect on
the due date of the filing for judicial and board appeal. I think both LUPO and the
statutory or administrative authority providing for review of the final decision oflocal
government by the Court or a Board require that a construction that the final action from
which appeal may be taken is the action as issued if not subject to reconsideration or the
decision on reconsideration if subject thereto. Here, Mr. Olbrechts has recognized the
right to reconsideration as provided under Procedural Rule B(III), but in the absence of
specific guidance has not analyzed the effect of either LUPO's right of judicial or board
appeal or the right thereto guaranteed by statute or applicable regulation under LUP A, the
SMA, or the GMA.
Let me first address LUPA. LUPA provides that appeals must be filed and served within
twenty one days of the issuance of a land use decision. See RCW 36.70C.040(3). A
"land use decision" is defined by RCW 36.70C.020(l) as:
A final determination by a local jurisdiction's body or officer with the highest
level of authority to make the determination, including those with authority to
hear appeals...
The key here is "final". If the appellate hearing examiner, the person with authority to
hear appeals, issues a decision that is subject to reconsideration, is the original decision or
the decision on reconsideration final? I think t he answer is clear, it is the decision on
reconsideration because the reconsideration can modify in whole or part the decision to
which it applies. Hence, finality obtains only after reconsideration and appeal lies only
upon the result of finality, i.e. the "final determination".
This reading ofLUPA is consistent with the SMA. RCW 90.58.140(4) and (6) provide
that a permit is submitted to the DOE as approved by final decision oflocal government
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David W. Johnson, Planner
Jefferson County
Department of Community Development
January 14,2008
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which may include a decision upon hearing. RCW 90.58.180(1) provides that a petition
for review by the SHB is due within twenty one days after the submission of the result of
the final decision to the DOE for ultimate approval. Again, reference is made to "final
decision" in RCW 90.58.140(4) that is incorporated into RCW 90.58.140(6) and RCW
90.58.180(1). The decision that may be appealed is the "final decision". If
reconsideration is permitted, there cannot be a final decision until the response to the
motion for reconsideration, if taken. This analysis was confirmed by the SHB in Powers
and Rozzell v. Jefferson Countv: Trendwest Resorts. Inc.. and Port Ludlow Associates.
LLC. (SHB 05-029), pp. 3, 4, in connection with the County's filing for an SSDP) on
Ludlow Cove II.
This reading of LUPA is also consistent with the GMHB rules. RCW 36.70A.290(2)
provides that petitions with the WWGMHB must be filed within sixty days of publication
of the decision to which they relate. The decision can be either the adoption of a
comprehensive plan, a development regulation or an amendment to either. Here, the
"major revision" is an amendment to a development regulation, the MPR Code. Whether
it can be approved as provided therein through the hearing examiner process or must be
submitted to the BoCC, the fact remains that it must be approved and published prior to
commence the sixty (60) day appeal period. That other decisions, including decisions by
a hearing examiner are appealable in this fashion, and the timing of appeal with respect to
the "final decision" by the County are expressly set forth in WAC 242-020-220(4). The
nexus between "publication" and "final" is clear. Publication refers to the final decision.
The Washington Administrative Code makes this clear. Here, the final decision is the
decision on reconsideration. That is the decision that is ultimately published.
LUPO indirectly supports the conclusion that the judicial and board appeal period runs
from the decision on reconsideration and not the initial decision. In the one instance in
which LUPO provides for reconsideration without the extension oftime for its results, it
clearly spells out this result. See LUPO Sec. 16(C)(3). This follows because the only
reconsideration available is to correct clerical errors or to clarify the intention of the
BoCC. The reconsideration cannot change the legal effect of the decision of the BoCC
even ifit is in error. Hence, the BoCC decision in a Type C Decision process is final.
Where there is an appeal, the question is the subject matter of the appeal. LUPO Sec.
18(D)(7) provides
The decision of the Appellate Examiner shall be final unless within twenty-one
days after issuance of a decision an appeal is filed with the Superior Court in
accordance with Chapter 36.70C RCW.
The question is what is the decision that issues. Using LUPO Sec. 15(C)(4), as a
template, an administrative appeal must be filed within ten working days of "the date of
the Hearing Examiner's Decision". The next sentence clarifies that if a motion for
reconsideration is filed, the date ofthe decision is "the date ofthe decision on
reconsideration."
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David W. Johnson, Planner
Jefferson County
Department of Community Development
January 14,2008
Page 3
The basis for reconsideration of the hearing examiner decision or the appellate hearing
examiner decision has the same scope: "errors of procedure or fact and omissions of
issues" as to hearings examiners and irregularities ofthe proceeding, newly discovered
evidence, or mistake of material fact as to appellate hearing examiners. See Procedural
Rules, Hearing Examiners, Sec. 9.4(b) and Procedural Rules Appellate Hearing
Examiners, Sec. 13.1. By contrast, the scope of reconsideration of a Type C Decision by
the BoCC is clerical errors and clarifications. It is clear that errors may have the effect of
changing the decision, of rendering the decision on reconsideration a new final decision.
The apparent conundrum is resolvable and under rules of construction must be resolved
by reading the term "final decision" as making reference to the decision on
reconsideration if reconsideration is taken. A riticulated ordinance such as LUPO with its
procedural rules cannot be construed to yield an absurd result. It is absurd to consider
that LUPO contemplates two possible final decisions over the same subject matter and
that it contemplates two possible dates of judicial or board appeal, one from each such
decision. It is equally absurd to consider that the due date for the motion for
reconsideration on this matter is January 26th, three days prior to the due date the LUPA
petition would be due. The decision on reconsideration will be due after the due date for
the petition on the decision from which reconsideration would be taken. Harmonized,
LUPO and its Procedural Regulations provide that the appeal period for a decision that is
administratively, judicially or board appeal must be read consonant with the plain
meaning of "final decision" and incorporate therein the results of any reconsideration that
addresses substantive aspects of the decision upon which it is taken. The construction
urged by this letter is consistent with the Jefferson County's prior treatment of motions
for reconsideration of appellate hearing examiner decision; it should not be varied for this
matter.
I request that Mr. Olbrechts to reconsider his interpretation of simultaneity in the running
ofthe reconsideration and appeal period for his decision in light of the authority cited and
arguments made in this letter. In any case, I request that the date for judicial, SHB and
GMHB appeals be specifically identified in due consideration of the jurisdictional quality
thereof.
Sincerely, I
LM/le If. I Po((/efi'~
LESLIE A. rOWERS
44 Heron Rlpad
Port LudloW, WA 98365
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Pollution Cunlro! Hearifltl$ Boa,d
Shorelines Hp.~riflg5 Board
fQre51 Praclice5 Appeal5 BOMd
Hyd'aulic Appeah IlOiUd
tflvlronmenlnl and land U~e Hearings Board
1elephone; (3&0) 459-&327
FAX: (3&0) 436-7699
Email: eholii'eho.wa.gov
Webslle:ww.....eho. W<l.gov
STATE OF WASHINGTON
ENVIRONMENTAL HEARINGS OFFICE
MJ!iling Address: PO Box 40903, Olympia, WA 98504-0903
Physkal Addrf:~s: 4224 - 6th Ave. Sf, Bldg. 2, RoweSix, Lacey, WA 985Q4-o903
July ] 8, 2006
Rick Rozzell
41 Windrose Drive
Port Ludlow W A 98365
David W. Alvarez
Chief Civil Deputy Prosecuting Attorney
Jefferson County
PO Box 1220
Port,Townsend WA 98368
Leslie A. Powers
3502 Tieton Drive
Yakima W A 98902
Marco De Sa E Silva
DAVIS WRIGHT TREMAINE LLP
2600 Century Square
1501 Fourth Avenue
Seattle WA 98101-1688
(For Port Ludlow Associates LLC)
Donald E. Marcy
CAIRNCROSS & HEMPLEMANN
524 Second A venue Suite 500
Seattle WA 98104-2323
(for Trendwest Resorts Inc.)
RE:
SHB NO. 05-029
LESLIE A POWERS & RICK ROZZELL v. .JEFFERSON COUNTY,
TRENDWEST RESORTS, INC. & PORT LUDLOW ASSOCIATES LLC
RECEIVED
JUL 2 0 2006
POWERS & THERRIEN, P.s.
Dear Parties:
Enclosed please find an Order on Reconsideration.
This is a FINAL ORDER for purposes of appeal to Superior Court within 30 days,
pursuant to WAC 461-08-570 and 575, and RCW 34.05.542(2) and (4).
Sincerely yours,
G~Y:/~
William H. Lynch, Presiding
WHLljglS 05~029
Cc: Don Bales - Shorelands, Ecology
Jefferson County Dept of Community Development
Ene.
CERTIFICATION
On Ihis day. I forwarded a true and accurate copy of
the documents to which Ihis certificate is affixed via
United States Postal Service ~age prepaid to the attorneys
of record herl:in.
1 certify under pel1lllty of perjury \Inder he laws of the
~... ~J!f' ""m,. "'" "'" w"",
DATED ...~~ __.atLacey. WA,
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BEFORE THE SHORELINES HEARINGS BOARD
STATE OF WASHINGTON
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LESLIE A. POWERS and
3 RICK ROZZELL,
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Petitioners,
SHB 05-029
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ORDER ON RECONSIDERATION
v.
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JEFFERSON COUNTY; TRENDWEST
7 RESORTS, INC.; and PORT LUDLOW
ASSOCIATES, LLC,
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Respondents.
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On May. 17, 2006. the Shorelines Hearings Board (Board) issued an Order on Motions,
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which denied summary judgment on all motions and remanded the case back to Jefferson
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County. The decision was based upon the conclusion that Jefferson County failed to follow its
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own procedures for hearing the appeal, and that the County ~ad not issued a final decision with
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respect to the shoreline substantial development permit at issue. The Board was comprised of
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William H. Lynch, presiding, Kathleen D. Mix, Judy Wilson, Kevin Ranker, and Judy Barbour.
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Respondents Jefferson County, Trendwest Resorts, and Port Ludlow Associates LLC (PLA) filed
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a Petition for Reconsideration with the Board. Petitioners Leslie Powers and Rick R07..zell
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oppose reconsideration. The Board I reviewed the following material in considering the Petition
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for Reconsideration:
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I Mr. Ranker was unable to take part in the reconsideration of this decision due to scheduling conflicts.
SHB 05-029
ORDER ON RECONSIDERATION
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1. Respondents' joint Petition for Reconsideration;
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2.
Petitioners' Brief in Opposition to Motion for Reconsideration;
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3.
Declaration of Leslie A. Powers and attached exhibit;
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4.
Declaration of Rick Rozzell; and
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5. Petitioners' Reply Brief.
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Based on the record in this case, and the materials submitted in the Motion for
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Reconsideration, the Board makes the following ruling:
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Respondents have requested the Board to reconsider its decision and advance three main
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arguments in support of their request. The first issue raised by Respondents is that the Board's
Order issued on May 17th is inconsistent with the letter sent to the parties on AprilS, 2006. The
second issue raised by the Respondents is that they have relied to their detriment on the April 5th
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letter by entering into a stipulated order based upon this letter. Finally; the Respondents believe
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that the Board should proceed with a de novo hearing in order to promote administrative
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efficiency.
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The April 5, 2006, letter from the Board states:
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The Board has denied all the motions and the case will proceed to hearing. The Board
18 believes the initial hearing examiner for Jefferson County erred by separating the
substantial development permit from the rest of the appeal and sending this permit to the
19 Department of Ecology. By doing so, the County failed to follow its own procedures that
dictate further review by the appellate hearing examiner. Jefferson County therefore did
20 not make a final decision on the permit at issue. The Board believes, nevertheless, that it
is appropriate for the de novo hearing to continue before the Board rather than a remand
21 to the County.
SHB 05-029
ORDER O"N RECONSIDERA IION 2
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Board's letter to the parties, April 5, 2006.
2 The Board's Order, dated May 17,2006, followed the same reasoning for reaching its
3 conclusion, except that the Board remanded the case rather than proceeding with a de novo
4 hearing before the Board. Prior to the issuance of the Order, the Board held another discussion
5 and concluded it only has jurisdiction over appeals of final decisions and that a remand was the
6 appropriate action. Nothing else in the Board's analysis changed. Respondents contend they
7 had negotiated a settlement with the Petitioners based upon the April Stllletter, but the Petitioners
8 are no longer willing to abide by the settlement because of the remand language contained in the
9 Board's May 17th order. Respondents request that the Board modifY the May 17th Order to
10 reflect the language contained in the April 5th Jetter. Petitioners object to the language circulated
11 in the proposed Order of Dismissal by a mediator but indicate they are willing to perform their
12 stipulation to sign an order of dismissal with language that they believe reflects the stipulation.
13 Respondents contend that because the Petitioners refuse to approve the particular language
14 circulated by the mediator~ they have relied to their detriment on the Board's April 5th letter.
15 Respondents' detrimental reliance argwnent is not well-taken. The April Stllletter clearly states:
16 "The opinion by the Board will follow shortly. This letter do.esnot constitute the fonnal opinion
17 by the Board and is not subject to appeal." The letter confers no rights and provides no basis for
18 detrimental reliance, especially since it is consistent with the subsequent Order by the Board
19 except for the remand action. It appears that the failure to sign an order of dismissal is based
20 upon the language contained in that proposed order rather than upon any actions by this body.
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SHB 05-029
ORDER ON RECONSIDERATION 3
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1 The Respondents believe that administrative efficiency may be better served if the Board
2 would proceed to a de novo hearing. The Respondents may well be correct, because this was the
3 reason why the Board initially decided to proceed with the de novo proceeding. However,
4 administrative efficiency carmot confer jurisdiction on the Board. As discussed in the Board's
5 Order, RCW 90.58.18Q, WAC 173-27-130, and prior Board decisiol'}.s limit the Board's
6 jurisdiction to review of final decisions by the local goverrunent. Because the Board detennined
7, that Jefferson County did not render a final decision on the permit in question, the Board has no
8 jurisdiction to hear this appeal and a remand is appropriate.
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The Board believes that two points raised by the Respondents should be addressed in this
Order of Reconsideration. The Board agrees with the Respondents in that the Board's May 17fh
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Order on Motions that the Board should have granted the Petitioners' Summary Judgment
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Motion rather than denying an motions. The Respondents express concern over which appeal
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process must be followed on remand. Although the Board believes that the LUPO process is
probably the appropriate process because the permit was filed pursuant to that process, it is up to
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Jefferson County to make that procedural determination.
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SHB 05-029
ORDER ON RECONSIDERATION 4
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. ORDER
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The Petition for Reconsideration is DENIED, except the Petitioners' Motion for
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Summary Judgment seeking a remand is GRANTED.
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Done fuisirtr of ;~. 2006. .
SHORELINES HEARINGS BOARD
IJ~J{ r
. 'N_'_
WILLIAM H. LYNCH, P eSldmg
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KA HLEEN D. MIX, ember
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JUDY ~bejs.
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JUDY BARBOUR, Member
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SHB 05-029
ORDER ON RECONSIDERATION 5
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