HomeMy WebLinkAboutExhibit269
FEB - 1 2008
BEFORE THE JEFFERSON COUNTY APPELLATE HEARING EXAMINER
LEWIS J. HALE, GREGG D. JORDSHAUGEN,)
LESLIE A. POWERS, and LUDLOW )
MAINTENANCE COMMISSION, a
Washington nonprofit corporation, ~
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Appellants,
v.
JEFFERSON COUNTY, a political subdivision
of the State of Washington, and PORT
LUDLOW ASSOCIATES LLC, a Washington
limited liability company,
Respondents.
FILE NOS. ZON03-00044,
SDP05-00019, and SUB05-00030
Reconsideration Decision
All motions for reconsideration are denied except that Paragraph 1 of Section V of
the Appellate Hearing Examiner's ("AHE's") final decision on this matter is stricken.
The parties have raised thoughtful and important issues in their requests for
reconsideration. In like kind these arguments merit a thoughtful and thorough response by
the AHE. However, in order to issue a reconsideration decision prior to the expiration of
the judicial appeals period, the AHE will provide a summary (but final) decision on each
motion as follows:
Port Ludlow Associates LLC ("PLA") 1/15/08 Motion for Reconsideration:
The AHE erred in his factual determination that SDP05-00030 did not already
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cover all development within 200 feet of the lagoon. Since this area was already covered
by the permit, PLA would have no need to apply for an additional shoreline permit if the
lagoon OHWM constitutes a shoreline. Also, since the entire lagoon and the areas 200 feet
landward of it are within the scope of SDP05-00030, the issue of whether the lagoon
OHWM constitutes a shoreline does need to be addressed at this time. Due to the minimal
hydrologic continuity with Ludlow Bay, the Examiner concludes that the OHWM of the
lagoon does not constitute a shoreline that triggers shoreline setbacks. Paragraph 1 of
Section V of the AHE's final decision on this case is stricken.
PLA's argument on Paragraph 2 is beyond the scope of reconsideration as
governed by Rule of Procedure 13.1 because it is solely based upon legal argument.
PLA's argument on Paragraph 3 is also beyond the scope of reconsideration since it
is only legal argument. However, the Examiner cannot help but point out PLA's assertion
that five foot side yard setbacks apply to townhomes is incorrect. MPR 3.105 states that
for attached single-family homes the setback requirements only apply to the lot as a whole,
not individual dwelling units. This was an important factor in the AHE's review on this
issue, although he neglected to mention it in his final decision. Not only does the plain
language of MPR 3.103(3) state that townhomes are single family attached dwelling, but
the provision on setbacks, MPR 3.105, goes out of its way to accommodate the setback
limitations inherent in attached single family homes. It is very difficult to find the
ambiguity in these provisions as asserted by PLA.
Powers Motion for Reconsideration:
Mr. Powers correctly points out that the AHE erred in finding that Heron Road
does not provide access to the Inn.
Even with the AHE's finding t~:;tr~n;C-'.'
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study show that problems with Heron Road "could well constitute a traffic hazard", the
still leaves the issue of whether the road design as mitigated by Mr. Berteig is adequate to
address safety and if not, whether Jefferson County can require the developer to do more.
As noted in PLA's 1/30108 response to Mr. Powers' motion, there was expert
testimony in the record supporting Mr. Berteig's finding that Heron Road is safe. As noted
in the AHE's final decision, the AHE must provide deference to Mr. Berteig's factual
findings because he serves as the highest fact finding authority in this project application.
One court details the review standard of the findings of the highest fact finding authority as
follows:
This review is deferential and requires the court to view the evidence and
reasonable inferences therefrom in the light most favorable to the party who
prevailed in the highest forum that exercised fact-finding authority, a
process that necessarily entails acceptance of the factfinder's views
regarding the credibility of witnesses and the weight to be given reasonable
but competing inferences.
Davidson v. Kitsap County, 86 Wn. App. 673 (1997).
Mr. Berteig found the expert testimony and other evidence presented by PLA to be more
credible than that presented by Mr. Powers. PLA's evidence is certainly debatable, but the
AHE cannot go so far as to find unreasonable Mr. Berteig's finding that Heron Road is
safe as mitigated (with access to the Inn). Given these factors, the AHE agrees that he
erred in his finding that Heron Road did not have access to the Inn, but still upholds Mr.
Berteig's ultimate findings and conclusions that Heron Road is adequately mitigated as
outlined in his decision.
Sections 2, 3 and 5 of Mr. Powers' brief do not assert any errors of fact but raise
legal arguments already addressed below. As such, these arguments._~!~.JIQLwithin .the..
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scope of reconsideration as governed by Rule of Procedure 13.1. ': \
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Mr. Powers raises new evidence concerning alleged bias by Mr. Berteig. This is
permissible both under Rule of Procedure 13.1 and RCW 36.70A.120(2)(a). The fact that
Mr. Berteig harbors some resentment towards comments made by unspecified persons
does not mean that he harbored any ill will or bias towards the parties, but it certainly
leaves open that possibility. This possibility becomes even more significant when
factoring in Mr. Berteig's earlier comments that he may not be able to issue a fair decision.
More information on the context of those comments is necessary to leap to the conclusion
that bias or even the appearance of bias was in fact involved. PLA and the County are
certainly correct that the evidence presented has been highly circumstantial, but it must be
kept in mind that, as the name provides, the appearance of fairness doctrine deals with
appearances. The judicial appeals process is much more suited for fleshing out these
issues, since Chapter 36.70C ("LUPA") provides an opportunity for depositions and other
discovery as well as a factual hearing. That type of inquiry is simply not possible or
practical during the reconsideration phase of an administrative appellate review. There is
not enough evidence before the AHE to conclude Mr. Bertieg violated the appearance of
fairness or due process rights of the applicant. The appellants will have the opportunity to
pursue this issue further through a LUP A appeal in a forum that is more suited for this type
of inquiry.
Hale Motion for Reconsideration
Mr. Hales arguments are addressed or rendered moot by the discussion above.
County Response on Heron Road
The AHE solicited and received an email from County staff today providing input
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on blocking Heron Road access to the Inn. The AHE failed to emPhasi'f[:t;af.!~~..~~~P2!l.~~..
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should be limited to evidence in the record. The response may contain opinions from staff
and the Fire Department that are not in the record. Rather than try to separate new
evidence from existing at this late juncture, the Examiner will strike the response from the
record and apologizes to staff for this wasted effort.
DONE this 31st day of January, 2008.
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FEB - 1 2008
Kay Richards
From:
Sent:
To:
Cc:
Subject:
Kay Richards
Thursday, January 31, 2008 3:24 PM
'dwjohnson@co.jefferson.wa.us'
Phil A. Olbrechts
FW: Port Ludlow Reconsideration Decision
Attachments:
0557 _001.pdf
Dear Mr. Johnson:
Per your request today, attached is a PDF of Phil Olbrechts' Port Ludlow Reconsideration
Decision. I am also mailing you the original document today.
0557 _001.pdf
(127 KB)
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Sincerely,
N. Kay Richards
Legal Assistant
Ogden Murphy Wallace P.L.L.C.
1601 Fifth Ave., Suite 2100
Seattle, W A 98101
krichards@omwlaw.com
206.447.2231
206.447.0215 (fax)
The information contained in this e-mail message may be privileged, confidential and protected
from disclosure. If you are not the intended recipient, any dissemination, distribution or
copying of the contents of this message is strictly prohibited. If you think you received this
message in error, please delete the message and e-mail the sender at Ilkrichards@omwlaw.comll.
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