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HomeMy WebLinkAboutExhibit266 LAW OFFICES Powers & Therrien, P.S. 3502 TIETON DRIVE YAKIMA, WASHINGTON 98902 LESUE A. POWERS KEITH R. THERRIEN E-Mail: Powers_Therrien@yvn.com TELEPHONE (509) 453-8906 FAX (509) 453-0745 January 25, 2008 RECE1\TED \J~" t 9 2nn~ ~m~~~U~ tU~~~ ~t~ Via Email Phil Olbrechts, Jefferson County Appellate Hearing Examiner c/o Al Scalf, Director Jefferson County Department of Community Development 621 Sheridan Street Port Townsend, W A 98368 RE: Port Ludlow Associates LLC; Resort Completion Project; Ludlow Bay Village and Admiralty III; File Nos. ZON03-00044, SUB05-00030, and SDP05-000l9 Final Decision on Appeal dated January 7,2008 Les Powers' Motion for Reconsideration Dear Mr. Olbrechts: By these presents, I am moving for reconsideration of certain factual conclusions set forth in your decision and request the modification and addition of certain conditions to the approval ofthe decision of Mr. Berteig for the reasons and as hereinafter set forth. I have attempted to limit this motion to three areas for which motions for reconsideration may be considered under Rules of Appeal, Sec. 13.1, which I understand to be limited to: (a) errors in procedure affecting the rights of a movant; (b) newly discovered evidence that is material to the decision; and (c) errors in findings of fact that are material to the decision. I have attempted to limit myself to these areas. If you consider any matter set forth herein beyond the scope of these limited areas subject to reconsideration, please disregard it. I have read the applicant's motion for reconsideration. I have not been able to identify matter raised therein as within the ambit of reconsideration under Rules of Appeal Sec. 13.1. To preserve my record, I move to strike the applicant's motion for reconsideration based thereon. 1 I Without waiving my general objection to the applicant's motion for reconsideration based on the limitations of Appeal Rules Sec. 13.1, I want to address one particularly pernicious proposed language change. The applicant invites the AHE to include in his order a reference suggesting that the results of the decision, and, in particular the character of the single family attached classification ofthe townhomes may be changed by an amendment to the Development Agreement. This notion is legally without support. The classification of the townhomes as single family attached residences is a function of the MPR Code. It is the development regulation adopted by the BoCC under the Jefferson County Comprehensive Plan to implement, execute and regulate the development of the master planned resort and the expansion thereof set forth in the resort plan that itself justifies approval of an additional 460 residential units in the Port Ludlow MPR. For reasons that I have urged throughout, development regulations are created under the GMA and are subject to its rules respecting content and modification. See, for example, the LOG ITEM # ~blo Page \ of-1L Phil Olbrechts Jefferson County Appellate Hearing Examiner January 25, 2008 Page 2 1. Findings on Heron Rd. The factual conclusion that traffic congestion will be lessened by the modification to the plan is at best questionable. The original plan described in the Final Supplemental Environmental Impact Statement for the Major Revision dated May, 2005 (the "FSEIS"). The FSEIS provided for a bollard to block access between Heron Rd. and the Inn. See FSEIS Figure~), Site Plan. It appears that the appellate hearing examiner decision of January 8- 20~e "A HE Decision"), relies upon the bollard described therein to conclude that traffic will De reduced on Heron Rd. under the amended plan of September 13, 2007 (the "Amended Plan"). That conclusion is no longer consistent with either the plan approved by HE Berteig on February 7, 2007 (the "HE Decision") or the Amended Plan. In his decision, HE Berteig ordered that the bollards that would have shielded Heron Rd. i from Inn be removed. See HE Decision 3(b). This order is grounded in safety considerations. It is also consistent with the Plat Ordinance that provides that square vehicular turn arounds and not hammer heads are preferred. Plat Ordinance, Sec. 6.309(9). This effectively negates the requirements respecting adoption or amendment at RCW 36.70A.106 and 36.70A.130(2)(a). Development regulations are public laws; they are not private agreements between developers and Counties. Development regulations are then implemented from time to time by development agreements separately entered between a County and a developer such as such as the development agreement adopted with respect to the development of the Port Ludlow MPR under Resolution 42-00 on or about May 8, 2000 (the "Development Agreement"). By its terms it is a private agreement between Jefferson County and the developer. With certain limitations, it does not have third party beneficiaries. See Development Agreement, Sec. 1.1,4.13. The Growth Management Act makes no provision for development agreements. Rather, they are provided in Title 36.70B, RCW, Local Project Review. Development agreements govern projects. Compare RCW 36.708.030 with RCW 36.708.170. They permit the vesting of the effect of development regulations and other land use law on specific projects. They are required to be consistent with applicable development regulations. See RCW 36.70B.170(1), last sentence. Consistency mandates the conclusion that a development agreement cannot modifY the applicable development regulation. Development agreements implement and are controlled by development regulations as to specific projects; they do not control the governing development regulations. What the applicant invites is to overturn a carefully riticulated proposal and amendment process involving oversight by the Washington Department of Community Development by permitting a private agreement between Jefferson County and the applicant to be used to modifY or trump same. This invitation is illegal and must be rejected. The effect of the Development Agreement is not before the AHE or the HE in connection with this application. The permits contained therein are limited to a BLA, an SSDP, and a major revision. There is no request for an amendment to or construction of the development agreement. Such a request would clearly conflict with the language of the development agreement itself that places modifications thereto under the aegis ofthe BoCC. The BoCC has not been involved in this consolidated permit application. Finally, and lest the issue be considered waived, the Development Agreement in this case has third party beneficiaries, persons who have purchased from Pope or from the applicant. As to matters affecting their property, their consent is required to amend the Development Agreement. See Development Agreement, Sec. 4.6. I am one of those parties. Changes to the Development Agreement that affect property I purchased from the applicant require my consent. That would clearly apply to any change that results in a conflict with or modification of the CC & Rs and arguably those offsite amenities provided in the Development Agreement, such as resort amenities, that have been impaired in this decision. I do not waive those issues. For reasons set forth in this footnote, the applicant's invitation to permit the amendment ofthe CC & Rs or the MPR Code through the amendment process in the Development Agreement is without legal basis and must be rejected. # Page LOG ITEM ?", 2... of Phil Olbrechts Jefferson County Appellate Hearing Examiner January 25, 2008 Page 3 effect of his later order for signage reducing speed on Heron Rd. to 15 miles per hour and declaring Heron Rd. for local traffic only. HE Decision 25(c). The plan approved in the HE Decision and the Amended Plan both eliminate the bollard. This is clear from the attached conceptual drawing from the Amended Plan. 2 Whatever the signage may be, there is no basis to conclude that there is any practical restriction on access along Heron Rd. to and from the Inn. It is clear that Heron Rd. will continue to be used as it has been used for more than ten years as an alternative access to the Inn. It is equally clear that it must be an access to the Inn for safety reasons which will result in competition along Heron Rd. for safety vehicles, pedestrian access, local vehicular traffic, parking, and Inn traffic. This is precisely the situation that the Engineering Report with which the AHE Decision concurred addressed. By concluding that the Engineering Report is correct, the AHE Decision erred in further concluding that any of its substantive objections to Heron Rd. were met by a putative reduction in traffic that is unlikely to occur given the actual nature of the Amended Plan? In further support of the consideration, reference is made to HE Decision Sec. 26(g) which eliminates parking along access roads. Without the bollard, Heron Rd, like Gull Rd. is an access road both for the residents and the Inn. It is not a dead end that excludes Inn traffic.4 I move the AHE to add additional conditions to the approval that adequately address the safety concerns that the AHE Decision meets and incorrectly assumes are resolved bl reduction of traffic resulting from a bollard across Heron Rd. that in fact has been eliminated. 2 The Staff Report at pp. 59, 60, was not followed and is currently not followed. It was opposed by Fire District III in testimony. See discussion in Report of Ed & Stevens & Associates ("Engineering Report"), Miscellaneous Considerations, para. 2 at Log Item 184, p. 19 reciting that the absence of a bollard that blocks all but emergency vehicle ingress will continue the dangerous condition. J See discussion, footnote I. 4 I wish to draw your attention to Plat Ordinance Sec. 6.309(5) and (9). The former states: "All dead-end roads shall be designed to include provisions for emergency vehicle turnarounds in accordance with standards established by the Director of Public Works". The latter states: "Permanent turnarounds, preferably square, may be required at the end of dead-end roads which are intended for continuation or future area-wide circulation". I read these provisions to require square, not hammerhead, turnarounds for emergency vehicles. I believe the standard adopted by Public Works is consistent with the foregoing. and that it is discussed in the Engineering Report. S I note that the Engineering Report concluded that Heron Rd. was unsafe and further residential buildout thereon should not be permitted not only because of congestion but also because of lack of roadway setback, inadequate turnaround, inadequate parking, and absence of dedicated pedestrian walkway. The AHE Decision correctly concludes that the townhomes are single family attached units. These require a twenty foot roadway setback. The conclusion is absolutely consistent with the MPR Code. The applicant's invitation to reject this conclusion based on some vague notion of prior practice by DCD must be rejected. The Engineering Report highlights the danger posed by the absence of a clear in accordance with standards promulgated by AASHTO. Its conclusion identifies the safety componentjustif)ring the roadway setback for single family units in the MPR Code. LOG ITEM # ?-~b Page ~ of Phil Olbrechts Jefferson County Appellate Hearing Examiner January 25, 2008 Page 4 2. Resort Visitor Accommodations. I have cited authority for the proposition that a master planned resort should be dedicated 65% to visitor accommodations. See Response Brief, footnote 15, citing JCC 18.15.123(1). I further draw the attention of the Appellate Hearing Examiner to the memorandum of August 25, 1998 from DCD to the BoCC in connection with the approval of the MPR Code. That memorandum indicates as a factual matter that the resort plan was included in the development regulation to justify the proposed 460 unit residential buildout. Failure to deal with this evidence is critical. To the extent the Appellate Hearing Examiner relies on the original 1990 resort as approved under RCW 36.70A.362, the reliance is not justified. The MPR Code, itself a development regulation, recites to the resort plan. Evidence from its adoption that appears not to have been considered supports the proposition that the changes to the 1990 master planned resort contained in the MPR Code, itselfby declaration consistent with the Comprehensive Plan, justified additional residential buildout. The issue is not whether the 1990 resort could be and was a master planned resort. It is the identity of its constituent parts. The 1990 resort was located in an area of residential development. It did not include the 460 additional residences that are allowed by the MPR Code and the Development Agreement. The question, as aptly posed by DCD in the memo, is whether the existing resort justifies that residential buildout. Adoption of the specific resort plan as part of the MPR Code clearly shows that it did not and that additional resort is required. If we are limited to a consideration of the original resort as approved under RCW 36.70A.362, is it equally necessary to remove the 460 additional residential units from the "master planned resort"? Not addressing the 1998 memo did not include the residential buildout The question is not the relationship between the original resort and the statute but as noted by my in his response brief, DCD clearly raised the issue that further residential buildout would only be permitted if it could be permitted extrinsic to the resort approved as a master planned resort by the BoCC under the Comprehensive Plan. The applicant wanted an additional 460 residential units. These were approved but only in the context of the expansion ofthe resort embodied in the resort plan, MPR Code Sec. 3.901. I urge that absent the withdrawal of the residential expansion by PLA, it should not be permitted to withdraw the resort plan. It is certainly the case that the resort approved under RCW 36.70A.362 was the resort as it existed in 1990; this, however, does not end the inquiry. A development regulation, the MPR Code, provided for an expansion of that resort generally concurrent with the direct approval in the Development Agreement of an additional 460 residential units. The nexus between those events has been ignored in the The HE Decision did not address the safety issues because it rejected the Engineering Report. Because the AHE Decision has accepted the Engineering Report, the issues that are identified in it must be adequately addressed in the Amended Plan. The Amended Plan does not meet this condition. It proposes an unlocated trail that is identified as a recreational amenity that will lie somewhere along Heron Rd. The design and location of the trail are unknown. The Amended Plan proposes further buildout along Heron Rd. While the AHE Decision requires that the buildout if condominium in design, be consistent with the Plat Ordinance, that is be based on binding site plans, it does not address the violations that it confirms as to the lack of roadway setbacks with respect to structures 400 and 700. Permitting the construction of structure 600 across from structure 700 directly conflicts the Engineering Report's finding that Heron Rd. is too narrow, considering its width has conflicting use age between safety, parking, and local vehicular traffic, has inadequate parking, and is burdened by inadequate roadway setbacks. I do not waive the considerations referenced in this footnote. # Page LOG ITEM !2bb ~ of Phil Olbrechts Jefferson County Appellate Hearing Examiner January 25, 2008 Page 5 decision as has the relationship between the requirements ofthe MPR Code and the Development Agreement and consents necessary for the modification of each. 3. BLA/Property Rights. The decision does not address all of my property rights and those of the other owners of the townhomes in the Ludlow Village Plat. While it conditions the release of the CC & Rs from the eleven (11) lots resulting from the BLA upon a private agreement of the parties, thus eliminating those issues from Jefferson County's final action in the form of the conditioned approval of the Major Revision, it does not address the conflict between the BLA as approved in the decision and the CC & Rs. The CC & Rs provide a scheme for voting and assessment based upon fifty three (53) townhomes and five (5) single family residences. In the body ofthe AHE Decision, it correctly concludes that the townhomes are single family attached residential units and not multifamily as concluded in the HE Decision at Finding of Fact 4. That number may be affected by the rate of development, i.e. there is an issue whether undeveloped lots held by PLA are either assessable or permitted to vote. However, such effect is implicit or explicit within the language of the CC & Rs; it does not result from an action by the County that permanently affects the CC & Rs or the voting and assessment schemes contained therein. The decision ofthe Appellate Hearing Examiner fails to address the effect of the BLA's reduction of the number oflots on the CC & Rs that requires a specific number of single family lots. It appears to assume that the lot reduction can be accomplished without a violation of the CC & Rs. This is clearly not the case. The effect ofthe County's approval of the BLA under the decision reduces the aggregate number of potential votes under the CC & Rs from fifty eight (58) to thirty seven (37) and the number of votes oftownhomes within the townhome association from fifty three (53) to thirty three (33).6 It may well be that the parties should negotiate a resolution. However, this ignores the role of the County in creating the violation. The County approved the violation by final action. If the County cannot enforce CC & Rs, it is clearly held not to violate them. Such violation is clearly actionable under 42 D.S.C. Sec. 1983. It implicates 18 D.S.C. Sec. 241 et sequ. It clearly arms the townhome owners with legal remedies against the applicant. There is little difference in this regard between the fact pattern in Mains Farms Homeowners Assoc. v. Worthington. 120 Wn.2d 810 (1993) where the homeowner's association sought and obtained a permanent injunction against proposed noncompliant use.7 The Court in Viking Properties v. Home, 155 Wn.2d 112, 130, (2005) appears sensitive to the issue by reference to the municipality's care in avoiding a violation. It strains credulity to suggest that the County land use approval process can simply avoid consideration of the results of its actions where those results can expose it to civil and potentially 6 This ignores the "abuse" that PLA intends, namely the conversion of the residential units to condominiums as disclosed in the FSEIS. 7 The use in Mains, supra, arguably fulfilled a public purpose. The use in this case fulfills only a private purpose. It neither meets the public use or purpose tests of Wash. St. Const. Art. I, Sec. 16. The need to avoid violating such rights by the government is clearly recognized by the GMA and by Viking Properties. If the government cannot approve vitiating CC & Rs for defective racial profiling provisions that can be eliminated, it is hard to understand how it can approve a project that clearly violates provisions, the legality of which is not even in question. LOG ITEM # ~ Page_.5 of Phil Olbrechts Jefferson County Appellate Hearing Examiner January 25, 2008 Page 6 criminal liability. The issue has not been avoided by conditioning further use ofthe resulting eleven lots to that permitted by the CC & Rs when the CC & Rs have already been conflicted by the decision. It appears that the Appellate Hearing Examiner opined upon a matter that he believed rendered irrelevant by his decision that left in tact the CC & Rs. Since this is not the case, the Appellate Hearing Examiner should address question whether the County is permitted to approve the BLA where it violates the applicable CC & Rs. 4. Recusal. It appears that the AHE Decision that Mr. Berteig is not recused is based on an underlying factual proposition that he did not demonstrate bias toward a party. This conclusion is rendered questionable by Mr. Berteig's deposition testimony in the pending SSNW litigation. I have only this week been provided a copy of certain of the discovery in that case including the deposition that is material to this issue and shows that Mr. Berteig resented the appellants, including me and that he enlisted the help of Mr. Fischbach and had ex parte communication with him regarding protecting him from the appellants, including me. These events occurred at a time when the major revision was the only matter at issue that related to Port Ludlow. I request that the deposition and an additional email from Mr. Fischbach produced in discovery be added to the record. In the deposition, Mr. Berteig testified as follows: A. I feel compelled emotionally because I resent the kinds of things that we ere said about me and I had a very extremely intense period that was culminated on April 17th when my father in law died. I kind of resent this continual thing. Q. What is it that you resent? A. Oh, the Port Ludlow folks because very antagonist over me. Q. So its not antagonism dirdected at you as a result of the SSNW? A. No. Mr. Berteig further testified: Q. into detail. Just in- what do you mean by personal matters generally? We don't need to go A. I am trying to avoid going into detail for personal reasons, but Mr. Fischbach has responded, we have a great deal of exchange of emails over some Port Ludlow cases, and they were extremely critical, and he protected my personal matters in this particular case. See Berteig Deposition Transcript, pp. 28, 29. Further, in an email dated August 21, 2006, Mr. Fischbach with Mr. Berteig, Mr. Fischbach acknowledged his role: Irv, I reluctantly am forwardng this message to you since they have requested it be forwarded. This is representative of the emails going back and fodrth lately. I have consistently said that you are not recused and dthat you will see this issue to the end. LOG ITEM # 1.b~ Page~Lof~ Phil Olbrechts Jefferson County Appellate Hearing Examiner January 25, 2008 Page 7 Good luck. I will call in a few days to discuss. John The forwarded email was my email to Mr. Fischbach urging that Mr. Berteig's self recusal but not reconsideration be given effect and averring to the appearance of fairness issues raised by Mr. Berteig's continuation. My em ail specifically addressed the major revision. Mr. Fischbach's em ail to Mr. Berteig dealt with this subject matter. It makes further reference to a phone call to follow. It is pretty clear that this exchange constitutes ex parte communication on the hearing involving Mr. Berteig. It is equally clear that Mr. Berteig by admitting "resentment" admits bias against the appellants, including me. It is further clear to me that Mr. Berteig had ex parte communication with Mr. Fischbach concerning the major revision while under Mr. Berteig's review and Mr. Fischbach's assistance running interference for Mr. Berteig.8 Both Mr. Fischbach's email and 8 The following identifies and classifies Mr. Berteig's deposition testimony about ex parte communications: Page 29 - Line 8 thru 19 Page 30 - Line 14 thru 25 Page 31 - full page Page 46 - full page Page 47 - Line 5 thru 12 Berteig's discussion on getting rid of AHE: Page 34 - Line 14 thru 25 Page 35 - full page Page 36 - full page Ex-Parte phone calls from Fischbach: Page 37 & 38 all Discussions on Alvarez being his personal attorney or representing him as hearing officer: Page 40 thru 43 all Page 44 - Lines 22 thru 25 Discussion regarding a 19 minutes phone call to Berteig's home from AI Scalfs cell phone: Page 45 - full page Page 46 - full page (Additional calls by AI Scalf) Discussion about instruction from AI Scalf on issuing Berteig's decision and then Alvarez saying to hold the decision until Roof made his decision: Page 73 & 74 - all LOG ITEM # 2!.b Page ~ of __.. Phil Olbrechts Jefferson County Appellate Hearing Examiner January 25, 2008 Page 8 the multiple references to ex parte communications between Mr. Berteig and Jefferson County in the deposition transcript show this. The undersigned believes that this evidence meets the burden of proof that Mr. Berteig is indeed biased, that he indeed had ex parte contact on the major revision with Jefferson County, a party to the matter, and that there is both a legal basis to his recusal as well as a factual basis supporting same. I request that the deposition testimony be admitted to the record as newly discovered evidence under Appellate Rules, Sec. 13.1(b). Based upon the additional evidence, I urge that Mr. Berteig's recusal stand and that the HE Decision be held a nullity based thereon. 5. The SSDP. The factual premise underlying paragraph I of the order. In the discussion, the AHE Decision correctly noted that the classification of the lagoon is a function of its exchange of water at mean higher high tide with the rest of Ludlow Bay. Accordingly, the question is not whether the lagoon is independently a body of water that supports shoreland classification but whether as a body of water that exchanges water with Ludlow Bay it is part of Ludlow Bay for purposes of defining the shoreland. Paragraph 1 appears to be based on the premise that the lagoon is independent of Ludlow Bay for purposes of determining whether it supports shoreland classification. As the discussion in the AHE Decision correctly noted, this is not the case. Rather, the question, put simply, is the lagoon part of Ludlow Bay. The proposition that it is part of Ludlow Bay is raised in two contexts. First, it is raised in the letter from the WDOE that poses the question based upon exchange ofwater.9 Second, it is raised in the historic context by the fact that historically, all of the lagoon was at one time or another tideland of Ludlow Bay. The lagoon was separated from Ludlow Bay by an artificial berm erected by Pope & Talbott or its predecessors in connection with the construction and operation of the sawmill located in the area now occupied by part of the townhomes, the Inn, and Burner Point. This is clear from the overlays that I submitted and are part of the log record.1o An examination of those overlays suggests that the tideland extended over virtually all ofthe lagoon and surrounding area where the marina building, parking lot, and berm are now located and that the removal of material under SSDP 91-017 was merely a removal of fill placed there in connection with the construction of the mill. In fact, the amount offill removed was a function of contaminants found therein and not of the original plan for the lagoon. It exceeded the original estimates, was subsidized by the landscaping budget and explains why the landscaping plan under SSDP 91-017 was never fully executed. Seen in this context, both the fact that the lagoon exchanges water with the rest of Ludlow Bay and the fact that the lagoon is part of the historic tidelands of Ludlow Bay support the conclusion that the lagoon is part of Ludlow Bay for purposes of determining the location of the shore lands of Ludlow Bay. The factual proposition that the lagoon is not covered by SSDP 05-00019 is also incorrect. An examination of the application, at paragraph 2, reveals that it addresses Discussion about Berteig's and Alvarez's relationship under attorney-client: Page 75 thru 77 9 Log No. 222 10 Log Exhibit No. 93 LOG 'TENt # ~bb Page_ ~ of.__> Phil Olbrechts Jefferson County Appellate Hearing Examiner January 25, 2008 Page 9 landscaping and other issues directly affecting the lagoon. I 1 It also covers the entire LBV Plat including the development of an additional 62 residential units thereon, and its associated marina and commercial ventures. It is a single permit application for the major revision. Contrary to the motion of the applicant, it cannot be subdivided to eliminate the requirements of SMMP Sec. 6.40 as to the entire group of permits and consents beyond building permits required for development within the resort zone. Conforming the factual basis for Paragraph 1 to the factual analysis contained in the AHE Decision requires that it be recast as a requirement that the application for SSDP 05.00019 be modified to require a determination whether the lagoon is an extension of Ludlow Bay and its tidelands so as to consider its landward boundaries shore lands of Port Ludlow for purposes ofthe SMA and SMMP. 12 Based on the foregoing, I urge that the following additional conditions, in the alternative, shall be added to the HE Decision: II SDP 05-00019, Resort Buildout, No. 1. 12 The AHE Decision is procedurally flawed in approving the SSDP subject to a condition subsequent to its submission to the DOE that the remaining permits and consents issue. Program Sec. 6.40 refers to "final action". Final action is not the submission of the SSDP to the DOE but the actual approval of the SSDP by Jefferson County. This was made clear by the SHB in Rozzell v. Jefferson County: Trendwest Resorts. Inc.. and Port Ludlow Associates. LLC. (SHB 05-029) at pp. 3, 4. Therein, the SHB clarified that an SSDP application submitted by DCD to the DOE prior to the exhaustion of the administrative appeal process was not approved by "final action" and, as a result, was void. Here, there is a similar procedural defect. What issues as a "final action" by Jefferson County is not a final action. There cannot be a final action that precedes the issuance of the remaining governmental permits and consents including by the binding site plans and the hydraulic permit. This follows because the approval process for an SSDP application, a Type B Approval under LUPO, requires an open record public hearing before a hearing examiner and is also subject to a closed record administrative appeal to an appellate hearing examiner. See LUPO . Sec. 6(A)(9), 15, and 18. Since the approval process and hearings are designed to review the various permits issued by other governmental agencies, each with their own separate criteria, through the prism of the SMA, there can be no final action approving the SSDP without the opportunity for the public as well as Jefferson County to review each of the issued permits and consents to ensure that the requirements of the SMA are fully met. Approving an SSDP subject to conditions subsequent addressing the separate governmental permits and consents vitiates the process. It also violates the due process rights ofthe applicant and members of the public who have an interest in the SSDP and its conditions. It deprives Jefferson County of the right and interferes with its obligation separately to review how the requirements of the SMA and the Program are affected by the group of permits and consents subject thereto. As long as a public hearing process is provided with respect to an SSDP application, it simply cannot be approved in advance of the hearings that address its concerns. As a result, the approval of the SSDP application in the AHE Decision, even though it conditions submission thereof to the DOE on the final issuance of the remaining governmental permits and consents, does not result in a "final action" by Jefferson County. It results in an SSDP application, that will be subject to legal challenge for voidness whenever it is submitted to the DOE or before the SHB. LOG \TEM # 2:h~ Page _ '\ of_ Phil Olbrechts Jefferson County Appellate Hearing Examiner January 25, 2008 Page 10 (a) The HE Decision is hereby vacated because it was improperly approved by the HE Berteig after he had recused himself based on valid determinations of bias. In the alternative, if(a) is not adopted, the HE Decision is hereby modified by adding or modifying the findings of fact or conditions as follows: (b) A new condition 31 shall be added providing as follows: (31) To mitigate the continuing violations of roadway conditions and roadway setback requirements by the applicant, the major revision is conditioned upon physical restrictions on Heron Rd. that eliminate vehicular traffic from the Inn on Heron Rd. and that are consistent with the Jefferson County access and turnaround requirements for fire and safety vehicles for the Inn and for Ludlow Bay Village. (c) A new condition 33 shall be added providing as follows: All residential development in the area subject to the BLA that is proposed by the applicant as condominium ownership shall be subject to a modifications to the LBV Plat approved by the persons with interests therein. (d) Condition 1 shall be modified to read as follows: SSDP 05-00019 is approved only as to development within the shorelands of Ludlow Bay. If the lagoon is within the shore lands of Ludlow Bay or has its own shorelands, development within the shorelands contiguous to the lagoon will necessitate a modification of SSDP 05-00019 or an additiional shoreline substantial development permit to cover and protect such shore lands. (e) A new condition 34 shall be added providing as follows: Further development of any of 460 residential units approved in connection with the incorporation of the "resort plan" in the MPR Code is conditioned upon the applicant's development of an alternative resort plan meeting the comparability requirements of the Development Agreement. (t) The following sentence shall be added to new condition 4: In addition, the applicant shall provide, develop and/or construct within the Port Ludlow Master Planned Resort as a condition to any additional residential development under the major revision or at Admiralty III, additional public visitor accommodations and public recreational amenities sufficient to justify the development of 460 additional residential units in the Port Ludlow Master Planned Resort under the requirement that they be subordinate to and supportive of the resort facility under RCW 36.70A.360 and Title 17, JCC. (g) All findings of fact in the HE Decision are modified by reference to the AHE Decision and to this motion for reconsideration. LOG ITEM # ~bb Page .-1JL of Phil Olbrechts Jefferson County Appellate Hearing Examiner January 25, 2008 Page II LAP/dms Enclosure(s) cc: AI Scalf(via Email) David Johnson (via Email) Lewis Hale (via Email) Gregg Jordshaugen (via Email) Elizabeth Van Zonneveld (via Email) Vaughn Bradshaw (via Email) Marco de Sa e Silva (via Email) Diana Smeland (via Email) Randy Verrue (via Email) Troy Crosby (via Email) Miriam VilIiard (via Email) Sincerely yours, ~,,;4/~/~vr;;: LESLIE A. POWERS LOG ITEM # lh'" Page-lLof-1L