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Home My WebLink AboutExhibit263 lAW Y III S Ii Davis Wright Tremaine LLP ANCHORAGE BELLEYUE LOS ANGELES NEW YORK PORTLAND SAN FRANCISCO "'II [[. SHANGHAI WASHINGTON, D.C, MARCO DE SA E SILVA Direct (206) 757-11024 marc ode saes; lYa@dwt.com SUITE 2200 1201 THIRD AVENUE SEATTLE, WA 98101-3045 TEL (2 II h) h 2 2 -.\ I ~ 0 FAX (211(,) 7'1-77011 www.dwt.com January 15,2008 VIA ELECTRONIC MAIL Phil Olbrechts, Jefferson County Appellate Hearing EXanliner clo Al Scalf, Director Jefferson County Department of Community Development 621 Sheridan Street Port Townsend, Washington 98368 Re: Port Ludlow Associates LLC; Resort Completion Project; Ludlow Bay Village and Admiralty III; File Nos. ZON03-00044, SUB05-00030, and SDP05-00019 Final Decision on Appeal dated January 7, 2008 PLA's Motion for Reconsideration Dear Mr. Olbrechts: I anl writing on behalf of Port Ludlow Associates LLC, for three reasons. First, I would like to thank you for the attention and diligence that you have devoted to this matter. Your questions and comments at the hearing and the content of your Final Decision on Appeal dated January 7, 2008, show that you have given significant independent thought to the arguments and evidence presented by the appellants, Jefferson County, and PLA, and for that we are very grateful. Second, as you have required in Paragraph No.3 of Article X of the Decision, PLA waives objection to delays in permit processing caused by Paragraph No.3 of Article X of the Decision. However, PLA understands that if your requirement is reconsidered and removed by you (as requested below) or on appeal, then the waiver will have no effect. Please let me know right away if that understanding is incorrect, or if Jefferson County requires further evidence of the WaIver. Third, I respectfully offer this motion for reconsideration in the hope that you might clarify Paragraph Nos. 1, 2, and 3 of Article X of the Decision, for the reasons set forth below. I believe OWl' 2217109v2 0065364-000002 Seattle lOG ITEM # )1" ~ Page ----1-of-2" Phil Olbrechts January 15,2008 Page 2 iii that these paragraphs may yield results inconsistent with your intentions and may cause unintended conflicts and hann in the future. Here are the three paragraphs, the bases for reconsideration, and our proposed replacement paragraphs: Parae:raDh No 1. Text of Decision: "SDP05-00030 is approved only as to development within the shorelands of Ludlow Bay. If the lagoon has its own shorelands, development within those shorelands will necessitate an additional shoreline substantial development permit." Basis for Reconsideration: Under the Shoreline Management Act and Jefferson County Shoreline Management Master Program, the Ludlow Bay "shore lands" is the area between the ordinary high water mark of Ludlow Bay and the line 200 feet upland of the OHWM. The shorelands does not include aquatic lands (where the approved marina expansion is supposed to occur), nor does it include areas upland of the 200-foot line (where additional upland improvements permitted by the shoreline permit are to occur). If the lagoon is its own "shoreline" and has its own "shorelands," then this new condition of approval as written will accomplish three things: (1) it will eliminate from the approved shoreline permit the entire marina expansion (the marina expansion is within aquatic lands, not within shorelands), (2) it will eliminate from the approved shoreline permit all development within the Plat of Ludlow Bay Village that is located upland of the line 200-feet upland of the Ludlow Bay ordinary high water mark (SDP05-00030 covers all development within the Plat of Ludlow Bay Village and Ludlow Bay, even development upland of the 200-foot line, as required by Merkel v. Port of Brownsville, 8 Wn. App. 844,509 P.2d 390 (1973), and other decisions), and (3) it will eliminate from the approved shoreline permit all development within 200 feet of the ordinary high water mark ofthe lagoon (which according to the Hearing Examiner's decision has no OHWM). The question raised in the appeals was whether the shoreline setbacks required under Sections 4.105 and 5.160 of the Jefferson County Shoreline Management Master Program apply to the lagoon, not whether more than half of the project should be eliminated if the lagoon were found to be a shoreline and to have its own shorelands. The Decision in this respect goes beyond the issue raised and the relief requested by the applicants. If the lagoon is its own shoreline to which shoreline setback requirements apply, then PLA is obligated to comply with those setback requirements, and compliance with the development standards and the Hearing Examiner's decision is achieved. See Hearing Examiner's Decision Condition 8.d at 33 and Condition 10 at 34. The legal effect of the conclusion that the lagoon is lOG ITEM # . ~b~ Page ?. of DWT 2217109v2 0065364-000002 Seattle Phil Olbrechts January 15, 2008 Page 3 1m a shoreline - if that conclusion ever is made - cannot be that the approved shoreline permit is vacated as to development within 200 feet of the lagoon, as to aquatic lands where the marina expansion is to occur, and as to areas upland of the line 200 feet from the Ludlow Bay OHWM, because all of these areas are included within the project described in SDP05-00030. SDP05-00030 already covers all development within 200 feet of the lagoon. There is no basis on which to require a second shoreline application and decision for this portion of the development, even if the lagoon is its own shoreline with its own appurtenant shorelands. The only issue is whether shoreline setbacks must be required. Proposed Replacement Text: "If the lae:oon is a shoreline to which shoreline setbacks apply under Sections 4.105 and 5.160 of the Jefferson County Shoreline Manae:ement Master Proe:ram. then such setbacks shall be provided. SDP05 00030 is approved only as to development \yithin the shorelands of Ledlow Bay. If the lagoon has its ovm sborclands, development within those shorelands \ViII neeessitate an additional shoreline substantial development permit." Parae:raph No 2. Text of Decision: "SDP05-0030 is only deemed approved upon PLA' s acquisition of all other land use approvals, including hydraulic permits, necessary for the development subject to SDP05-00030. Jefferson County shall issue notice of SDP05-0030 approval to all persons entitled to notice of the final decision upon acquisition of all land use approvals. Within ten calendar days of the issuance of this decision, PLA shall file a written waiver of objection to delays in permit processing caused by this condition. IfPLA does not file the waiver, SDP05- 0030 shall be deemed denied for failure to comply with Jefferson County SMMP ~ 6.40. Jefferson County shall not file the permit approval with the Washington State Department of Ecology, as required by RCW 90.58.140(6), until PLA has acquired all other required land use permits." Basis for Reconsideration: Section 6.40 of the Jefferson County Shoreline Management Master Program requires in relevant part as follows: A 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 DWT 2217109v2 0065364-000002 Seattle # Page. LOG 'TENl ?(t) 3 ~ of Phil Olbrechts January 15,2008 Page 4 1m subdivision approval, these other issues shall be resolved prior to final action on a shoreline permit application. I Section 6.40 must be interpreted reasonably and fairly, in a manner that furthers the purposes of the shoreline regulations without causing unnecessary damage to PLA and others. Even under Section 6.40, SDP05-0030 should not be held in suspension, perhaps for years, while PLA seeks and obtains other required governmental permits and battles other land use appeals, not knowing whether a relatively important and discretionary permit (the shoreline permit) will be appealed or modified or reversed on appeal, and regardless whether the other required land use permit relates to the portion of the work that PLA hopes to undertake, because to do so is not required by Section 6.40, does not promote the purposes of the shoreline regulations, and will cause unnecessary harm to PLA. In the first sentence quoted above, "is considered" does not mean "shall be," and the second sentence of Section 6.40 requires "resolution" (not approval or issuance) of "other issues" (not of applications and permits). It is unfair to conclude that the resolution of other issues must mean nothing less than the approval or issuance of all other applications and permits. In this case, the "other issues" were resolved in the Hearing Examiner's decision when he required in that decision that PLA obtain other required land use approvals, such as a hydraulics project approval (Condition 6 at 32), prior to construction. You correctly noted in the Decision, What is not so clear is what is intended by the term "final action". It is revealing that "final action" is used instead of "approval", suggesting that something after approval of a permit would qualify. However, it does not necessarily follow that the only possible final action after approval is filing of the shoreline decision with the Department of Ecology. Permit conditions require actions, sometimes by the applicant and sometimes by the government. By the imposition of a shoreline permit condition that PLA may not commence construction of improvements until Jefferson County has made a written determination that PLA has obtained all other land use approvals, Jefferson County may establish a required action that is consistent with Section 6.40, serves the purposes of the shoreline regulations, and does not damage PLA or others. In addition, this new condition may cause the following problems: ) It is likely that "other governmental approvals" was intended to mean "other Jefferson County approvals," since local approvals are the only examples given, and aU Washington jurisdictions of which I am aware (including Jefferson County) in practice approve shoreline pennits regardless whether HPA's and other permits except discretionary land use approvals required of the local jurisdiction have been granted. DWT 2217109v2 0065364-000002 Seattle LOG ITEM # }L3 Page.-Lof Phil Olbrechts January 15, 2008 Page 5 1m (1) Because the other required land use permits are not specifically identified in the Decision, the parties may disagree about whether and when Jefferson County may file the shoreline permit decision with the Washington State Department of Ecology. (2) To the extent that the other required land use permits are delayed, the fmal resolution of SDP05-0030 will be delayed, causing PLA to invest in other required land use permits without knowing whether or not SDP05-0030 will be appealed and modified or reversed on appeal. If SDP05-0030 is modified or reversed on appeal, then PLA must apply for modifications to its other required land use permits. (3) This is a phased project. PLA might not begin construction of the marina expansion for several years. To require PLA to obtain a hydraulics project approval ~d U.S. Army Corps of Engineers approval for the marina expansion before PLA can begin any dry land improvements that ordinarily would not require these aquatic approvals would impose an unreasonable hardship on PLA. PLA would be required to obtain permits that it is not prepared to use (e.g., HPA and Corps permits) so that it can undertake other work. The unneeded permits will expire unused, and when PLA is prepared to undertake the marina expansion, it will be required to obtain the permits allover again. For these reasons, PLA asks that you modify Paragraph No.2 of Article X of the Decision as follows, consistent with the express language of Section 6.40 of the Jefferson County Shoreline Management Master Program and the purposes of the other shoreline regulations: Proposed Replacement Text: "PLA may not commence construction of improvements under SDP05-0030 as to any portion of the project until Jefferson County has issued to PLA a written determination that PLA has obtained aU other land use approvals required for the development ofsuch portion. SDP05 0030 is only deemed approved upoa PLA's acquisition of all other land use approvals, inell:l<:iing hyckaulie permits, necessary for the development subject to SDP05 00030. Jefferson COUflty shall issl:le notiee of SDP05 0030 approval to all persons entitled to notice of the final decision \;!flon acqaisition ef all land use approyals. \Vithin ten calendar days of the issuance of this decision, PLA shall file a vmtten 'twiver of o~ection to delays in permit processing cffi:lsed by this condition. IfPL!~ does not file the 'Naiver, SDP05 0030 shall be deemed deBied f-or failure to comply with Jefferson Ceooty SMMP ~ 6.10. Jeff-erson County shall not file tbe pennit approval witb the Washiagton Stat-e Department of Ecology, as req:aired by RCW 90.58.110(6), aatil PL.^~ has acquired all other required land use permits." DWT 22171 09v2 0065364-000002 Seattle LOG ITEM # 9-~~ Pag~ 5 of Phil Olbrechts January 15,2008 Page 6 iii Paraeraph No 3. Text of Decision: Conclusion of Law D(4) is repealed. A new condition is added to the decision to provide as follows: MPR 3.103(3) expressly provides that townhouses are "single family attached" for purposes of the MPR ordinance. MPR 3.105 expressly states that the single- family bulk and dimensional standards apply to single family attached units. Any proposed town homes shall be subject to the single-family bulk and dimensional standards as specified in MPR 3.105. PLA is free to replace its proposed town homes with stacked flats in order to avoid the requirements of MPR 3.105. Basis for Reconsideration: PLA is grateful for the final sentence of this condition, which clearly is consistent with the MPR Code, but PLA also had expected that you would find that the MPR Code is ambiguous regarding whether a town home is a single-family or multi-family structure, for several reasons: (1) The "single family attached" regulations at Section 3.103 of the MPR Code relate only to single family attached dwelling units "as part of a new subdivision," while the Plat of Ludlow Bay Village is an existing subdivision, (2) The 5-foot side yard setback required in the MPR-SF zone - which physically disconnects all single-family dwelling units - makes it impossible to have "single family attached dwelling units" because they all must be at least 10 feet apart from one another, (3) It is unlikely that the Board of County Commissioners would have intended to authorize additional town home structures within the Plat of Ludlow Bay Village. (MPR Code Sections 3.402 and 3.901) that were physically incompatible with the 13 town homes already constructed, (4) uSes, and Attached town homes are traditionally regulated as multi-family structures and (5) MPR Code Section 3.302 (multi-family permitted uses) expressly authorizes "multi-family dwelling units including condominiums." Because the MPR Code is ambiguous on this issue, the past interpretations of the issue by the Jefferson County Department of Planning and Community Development are relevant and the Hearing Examiner's decision on this issue is not clearly erroneous. OWT 2217109v2 0065364-000002 Seattle LOG ITEM # ~b~ Page~of Phil Olbrechts January 15,2008 Page 7 1m However, if you do not deem it appropriate to reconsider your Decision in this respect, by eliminating Paragraph No.3 of Article X, then PLA asks that the Decision be modified as follows to authorize PLA to seek and obtain an amendment to the Port Ludlow Development Agreement, the effect of which would resolve the ambiguity. PLA believes that the community prefers town home designs to stacked flats, and PLA would like the flexibility to construct both. Proposed Replacement Text: Conclusion of Law D(4) is repealed. A new condition is added to the decision to provide as follows: MPR 3.103(3) expressly provides that townhouses are "single family attached" for purposes of the MPR ordinance. MPR 3.105 expressly states that the single- family bulk and dimensional standards apply to single family attached units. Any proposed town homes shall be subject to the single-family bulk and dimensional standards as specified in MPR 3.105. PLA is free to replace its proposed town homes with stacked flats or seek and obtain an amendment to the Port Ludlow Development Ae:reement in order to avoid the requirements ofMPR 3.105. Thank you very much for your consideration. Sincerely yours, ~gh'j;\A:LP~ Marco de Sa e Silva cc: Al Scalf (Via Electronic Mail) David Johnson (Via Electronic Mail) Lewis Hale (Via Electronic Mail) Gregg Jordshaugen (Via Electronic Mail) Elizabeth Van Zonneveld (Via Electronic Mail) Vaughn Bradshaw (Via Electronic Mail) Leslie A. Powers (Via Electronic Mail) Diana Smeland (Via Electronic Mail) Randy Verrue (Via Electronic Mail) Troy Crosby (Via Electronic Mail) Miriam Villiard (Via Electronic Mail) DWT 221 7109v2 0065364-000002 Seattle # Page LOG ITEM J.b3 ':J of I