HomeMy WebLinkAboutM052708
~~ COMAq.rn~
~//~~rfe
ST;:~~ 00\
&(~ X" ~\
I...... ~~,-<)
\ ' j
\~ ~/
~8b C'\'y
~IN_:/"
District No.1 Commissioner: Phil Johnson
District No.2 Commissioner: David W. Sullivan
District No.3 Commissioner: Johu Austin
Interim County Administrator: Dennis Richards
Clerk of the Board: Lorna Delaney
MINUTES
Week of May 27, 2008
Chairman Phil Johnson called the meeting to order in the presence of Commissioners David
Sullivan and John Austin.
PUBLIC COMMENT PERIOD: The following comments were made by citizens: The
Ferry System's RSVP program is working and the State Department of Transportation has an on-line survey
for residents to vote for their preferred mitigation option when the Hood Canal Bridge is closed in 2009; a
third mitigation option should be considered by DOT which is a ferry from Port Townsend to Edmonds that
will be essential this year with gas prices so high and residents should point out that the proposed mitigation
is insufficient and that the impact on local business will be extremely severe; what has the County done to
predict what will happen to County services as the price of gas keeps going up?; why did the Board delete
from the Consent Agenda the appointment of a former commissioner to the Board of Equalization?; The
removal of the appellant Hearing Examiner is necessary because it is an unnecessary redundancy; the people
of Port Ludlow want assurance that the Iron Mountain Quarry operation will not effect the life style in Port
Ludlow; there is a helicopter landing zone at Gardiner that has been used in the past for transporting patients
and may be used by Airlift Northwest when the bridge is closed; instead of carrying a big stick the Board
needs to educate the public; getting people to stay home to use local businesses is good for the County's
economy; and the DOE has in-stream flow rules because Puget Sound water needs to be cleaned up and
returned to the upper parts 0 f the watersheds to support farming.
APPROVAL AND ADOPTION OF THE CONSENT AGENDA: Commissioner Austin
moved to approve the Consent Agenda as presented. Commissioner Sullivan seconded the motion which
carried by a unanimous vote.
1. HEARING NOTICE re: 2008 Conservation Futures Funding Projects; Hearing Scheduled for
Monday, June 16, 2008 at 10:00 a.m. in the Commissioners' Chambers, Jefferson County
Courthouse
2. HEARING NOTICE re: Establishing the Final Docket for the 2008 Comprehensive Plan
Amendment Cycle; Hearing Scheduled for Monday, June 9, 2008 at 10:15 a.m. in the
Commissioners' Chambers, Jefferson County Courthouse
3. RESOLUTION NO. 33-08 re: Jefferson County 2008 Solid Waste Management Plan (SWMP)
4 RESOLUTION NO. 34-08 re: Creating County Road Project CR1805, Montgomery Lane
5. RESOLUTION NO. 35-08 re: Temporary Road Closure on Montgomery Lane, County Road No.
542109
Page I
Commissioners Meeting Minutes: Week of May 27, 2008
6: AGREEMENT NO. HRD3-0078 re: Detour Traffic onto South Point Road During Hood Canal
Bridge Closure in May/June 2009; Jefferson County Public Works; Washington State Department of
Transportation
7. UTILITY EASEMENT re: Temporary Utility Easement at Memorial Field; Jefferson County
Public Works; City of Port Townsend
8. MEMORANDUM OF UNDERSTANDING and MEMBERSHIP AGREEMENT re:
Washington Counties Select Retrospective Rating Program; Jefferson County Administrator;
Washington State Association of Counties
9. AGREEMENT, Amendment No.1 re: Local Source Control; Jefferson County Public Health;
Kitsap County Health District and Clallam County Health Department
10. AGREEMENT, Amendment No.2 re: Individual Supported Employment; Jefferson County Public
Health; Momingside
11. AGREEMENT, Amendment No.9 re: 2007-2011 Consolidated Contract; Jefferson County Public
Health; Washington State Department of Health
12. Payment of Jefferson County Vouchers/Warrants Dated May 15,2008 Totaling $1,098.96 and May
19,2008 Totaling $343,809.53
13. Payment ofJefferson County Payroll Warrants Dated May 15,2008 Totaling $58,731.08 and Dated
May 19,2008 Totaling $96,000.36 and Dated May 20, 2008 Totaling $17,933.06
COMMISSIONERS BRIEFING SESSION: The Board members reviewed the following
items:
. Commissioner Austin reported on the US Forest Services plan to balance their budget over the next 5
years and the cutbacks in service that will be made. The Falls View Campground near Quilcene will
only be open in July, August and the first 2 weeks of September. He feels this will have a negative
impact on the economy in Quilcene. He urged people to write to the Ranger for east Jefferson
County and to our Congressionalleaders to urge the Forest Service to keep this campground open
longer during the year. He volunteered to draft a letter to the County's Congressional delegation for
the Board to consider at a future meeting.
. Chairman Johnson attended a presentation on the Shore Bank/Cascadia loan program for restoring
and repairing septic systems in Jefferson, Mason or Kitsap County. If a resident qualifies they are
eligible for a very low or zero percent loan which is not payable until they sell their house. The DOE
and the Gates Foundation have provided a total of $6 million for this program.
. Last Thursday and Friday the Board members and a number of courthouse offices made present-
ations to the Port Townsend High School Freshman class about careers.
. The Chairman also attended an Olympic Discovery Trail meeting which is a project he hopes to see
completed.
Approval of Minutes: Commissioner Austin moved to approve the minutes of the May 5 and
12,2008 meetings as presented. Commissioner Sullivan seconded the motion which carried by a unanimous
vote.
Page 2
Commissioners Meeting Minutes: Week of May 27,2008
Planning Commission Recommendation and Staff Report re: Development Standards for
Signs (JCC 18.30.150): Karen Barrows, Department of Community Development Lead Planner for this
matter reported that the Jefferson County Code 18.30.150 contains the development standards for signs. On
October 13,2006 the Clallam County Superior Court enjoined Jefferson County from enforcing subsection
2F of this section which mentioned, among other things, political messages not to exceed 8 square feet. On
April 23, 2008 DCD staff published a report and recommendation suggesting that the Code be amended to
add subsection 2G which removes size limitations from the Code. On May 7, 2008 the Planning
Commission held a public hearing and formulated recommendations that differ from the staff
recommendations. The Planning Commission recommended that the Code be amended to include a
subsection stating that non-commercial signs on private property measuring less than or equal to 32 square
feet be included as exempt, that event based signs in a public right-of-way measuring less than or equal to 6
square feet also be exempt and that the subsection dealing with real estate signs be deleted entirely. There is
a minority report from the Planning Commission as well. Since the Planning Agency recommendations
differ, the Planning Commission asked staff to request that the Board schedule a public hearing on this
matter.
Commissioner Austin stated that he doesn't see a definition of political signs in the Code and feels that a
definition is needed. Commissioner Sullivan stated that a definition was not needed because the County has
never envisioned controlling anything that had to do with the content of the sign. Al Scalf, Community
Development Director, suggested that if Commissioner Austin would like that this be included in JCC 18.10
under definitions that would have to be done after the public hearing and during deliberations directing staff
to add to the definitions. He then noted that the Planning Enabling Act specifies the recommendation ofthe
Planning Agency. The Planning Agency for these purposes is the Planning Commission and the Department
of Community Development. In this instance there are conflicting recommendations between the
Department and the Planning Commission, so the Planning Commission's recommendation is the subject of
the public hearing.
Commissioner Sullivan noted that the Planning Commission recommendation addresses more areas than the
Court case had required for review.
Commissioner Austin moved that a hearing be scheduled on the Planning Commission recommendation
regarding JCC 18.30.150. Commissioner Sullivan seconded the motion which carried by a unanimous vote.
Karen Barrows suggested that the hearing be held on June 16, 2008 and will coordinate with the
Commissioner's Office staff for a time on this date.
HEARING re: Application to Amend the Port Ludlow Development Agreement; Port
Ludlow Associates, Applicant: David Wayne Johnson, Department of Community Development Associate
Planner, handed out a staff report which includes the public comments received on this project and the
analysis from staff. He noted that this application is a request for an amendment to the Port Ludlow
Development Agreement which was originally signed by Pope Resources and Jefferson County in May
2000. That agreement adopted LUPO, the Land Use Procedures Ordinance for processing permit
applications. LUPO was adopted by the County in 1998 and was the standard for processing land use
Page 3
Commissioners Meeting Minutes: Week of May 27, 2008
applications at that time. Since that time the UDC was adopted (2001) and changed the process from what
was required by LUPO. The Appellate Hearing Examiner (AHE) procedures were carried over in the UDC.
In July of 2006 the UDC was amended to remove the Appellate Hearing Examiner. The Port Ludlow
Development Agreement was vested under LUPO. The only land owner in Jefferson County that has to
have their applications processed under LUPO is Port Ludlow Associates who assumed ownership ofthe
Pope Resources property in 2001. Port Ludlow Associates has requested that the Development Agreement
be amended and there is a process for that in that Agreement which requires a public hearing. This hearing
does not include deliberation or a decision by the Board at this time.
The Department staff, David Wayne Johnson continued, see this as a positive amendment because it will
make the Development Agreement consistent with the UDC and everyone will have their applications
processed similarly as far as the Hearing Examiner process. This will eliminate redundancy and a huge cost.
The last closed record appeal hearing in Port Ludlow cost the County $17,000. Those are the same reasons
the UDC was amended to remove the AHE. This application was noticed with a 10 day comment period and
two public comments were received. Those comments questioned whether or not the amendment ofthe
Development Agreement requires successors to title to consent to any amendment. This is a legal issue that
a Planner can't address. Deputy Prosecuting Attorney David Alvarez advised that he is not ready to give a
legal opinion today.
Commissioner Austin asked if there were any objections when the AHE was dropped in 2006? David
Wayne Johnson explained that staff recommended that change and the Planning Commission recommended
the change. Al Scalf reported that there was public opposition to removing the AHE at that time because of
concerns about due process. There were no public comments about successors at that time. Deputy
Prosecuting Attorney, David Alvarez, added that an open record hearing is mandatory under State law
(Regulatory Reform Act RCW 36.70B) and the closed record appeal is optional.
The discussion continued regarding the process for the appeal of the different types of permits and how far
each type of permit can be appealed.
Al Scalf reminded the Board that they are in their legislature mode on this decision and the staff
recommends that the Board hear the applicant prior to conducting the public hearing as an introduction of
their proposal.
Dianne Smeland, President, Port Ludlow Associates, 70 Breaker Lane, Port Ludow, stated that she requested
that the Board approve the removal of the AHE from the Development Agreement. They have been talking
about making this change to the Development Agreement since 2006. They wanted to wait until Ludlow
Bay Village had moved through the LUPO process. As they bring new applications to the County they feel
it would be good to try and align their rules with the rules that govern the County. During the AHE stage,
people from the community have asked her if they can provide support at the hearing and she has to tell
them they can attend the hearing but they can't give testimony. If this step doesn't help the normal citizen
and the people that are appealing the project are going to take it to Superior Court anyway, then the step can
be eliminated to save both parties some money.
Page 4
Commissioners Meeting Minutes: Week of May 27,2008
Marco De Sa E Silva, attorney at Davis, Wright, Tremaine, 1201 Third Avenue, Suite 2200 Seattle, W A
98101, stated that Port Ludlow Associates purchased the property that was owned by Pope Resource and its'
affiliates in August of200l and since that time has been subject to the Port Ludlow Development
Agreement. Since around 2004 there has been a small group of property owners within Port Ludlow who
have opposed virtually every development application that Port Ludlow Associates has submitted to
Jefferson County. Many of those property owners have good faith arguments to make and need to be heard.
What Port Ludlow Associates is asking the Commissioners to do today is not intended to change that ability.
There is a group of residents who seem intent simply on creating delay, creating additional cost to Port
Ludlow Associates and the County and disrupting the development of any real property in Port Ludlow. It
would make sense to have an Appellate Examiner process in Port Ludlow if the AHE process actually
resolved land use disputes, but in fact it doesn't or at least it hasn't within the last few years. Every decision
of the Hearing Examiner on a Port Ludlow Associates application has been appealed to the AHE and every
decision by the AHE has been appealed beyond - either to JC Superior Court or to the Shoreline Hearings
Board if it' s a shoreline decision. So, even though there may have been good reasons for the County to have
an AHE to resolve disputes more efficiently and not require people to hire lawyers and go to Court, in actual
practice it's not working that way. All land use disputes in Port Ludlow are being resolved in Superior
Court or at the Shoreline's Hearings Board level.
Mr. De Sa E Silva continued by noting that the appeals to the AHE cost the County significant sums of
money, they delay projects and that cost is passed on to the taxpayers of the County. The amendment being
sought by Port Ludlow Associates would make PLA development applications be treated the same as
development applications for other property throughout the County. The AHE position is rare in the State of
Washington. He is not aware of another County that has one, even though there may be one out there. Mr.
Loomis and Mr. Powers have both raised the same issue in their letters to the County. The issues they are
raising don't relate to the merits of what is being proposed, they relate to a road block they are trying to
throw in front of the County and Port Ludlow Associates. They are claiming that property owners in Port
Ludlow are successors to Pope Resources and to the PLA under the Development Agreement. The claims
lack merit for several reasons. Bert Loomis does not own property in Port Ludlow. There is a Trust that
owns property and Mr. Loomis lives in a house that is owned by the Trust, but he himself does not own
property. He wouldn't have a claim of standing under the Development Agreement in any event. The Port
Ludlow Development Agreement was never intended to cover all of the property within the Port Ludlow,
MPR. It covered only that property that was owned in May of2000 by Pope Resource and its' affiliates.
That was a much smaller set of property. Since that time there has only been one subdivision platted under
the Development Agreement and that was the Olympic Terrace II Subdivision. The Port Ludlow
Development Agreement is a contract and the principles of contract law govern. Those principles look to
the intent of the parties at the time the Development Agreement was made which is revealed in the
document itself. If you read the recitals it talks about the future development of Port Ludlow, the buildout
of Port Ludlow and the activities of the principal developer within Port Ludlow, not the activities of
homeowners. The intent of the parties as stated in Section 4.3, is that as property is developed and sold off
it would be released from the Development Agreement, but declarations of covenants, conditions and
restrictions would remain untouched. Getting agreement between every lot owner within that property could
never have been the intent. The intent clearly, from the language in the agreement, would be that the parties
Page 5
Commissioners Meeting Minutes: Week of May 27,2008
(the County on the one side, the utility company, and the developer) would be the only parties subject to the
Development Agreement.
Chairman Johnson then opened the public hearing for comments.
Joe D'Amico. Security Services stated that he is listening with amazement because he's spent $700,000
going the route that Mr. Alvarez has said. Now he finds out that Security Services had an opportunity for an
AHE. If it changed in 2006, Security Services had to appeal January 10, 2006. He has heard how everyone
has said this will save the County money, what about the citizens? He is not against the folks that are trying
to change this. He feels the AHE was a good process because it double checks the Hearing Examiner. The
Hearing Examiner isn't a lawyer, he doesn't report to anybody and he doesn't need a license. If you take
this to Superior Court you are costing the business owner more money. He feels the AHE process should be
re-instituted because it is a failsafe system to the citizens, not to the County. He has been remanded three
times back to the Hearing Examiner. This thing isn't going to go away just because you go to Superior
Court. It would be nice to have another set of eyes come in and check the County's work. It's going to cost
the taxpayers (citizens). He questioned why he didn't get this right.
Lewis Hale. 28 Heron Road. Port Ludlow presented a letter and pointed out that he feels there are
questions that need to be evaluated. Is this something the Board should consider? Is it a good option to
eliminate the AHE? He suggested that it is not. It is a system that has served the County and the public well.
It is time efficient and the Code actually provides that a decision must be rendered by the AHE within 60
days of the original decision. All ofthe delay that has happened has been for other reasons, such as
mediation, to which people have agreed. It's more cost effective, particularly for the citizens because as a
citizen he does not have to retain an attorney to protect his property rights. If he goes to Superior Court he
has to step up and spend some money. The AHE is a land use expert and if you go to Superior Court you are
getting a Judge who is a lawyer but they are a generalist and they mayor may not have land use expertise.
Even if it does go into Superior Court the time that is spent getting ready for the appeal is not lost time it's
the time people would have to spend in any event. Can the County implement the suggested amendment?
He suggests that it cannot. Are all the necessary parties included? The issue of successors in title being the
person who purchased the property from Pope or the PLA. As someone who bought the property he feels he
is a successor in title. Can the change be implemented without changing LUPO? This property is vested
under LUPO and this is a land use/property rights issue. There are two agreements that go together and one
is the Port Ludlow Development Agreement that actually implements LUPO as the vested property right.
What is being proposed is not to change that underlying code, but to obfuscate around it by merely changing
some words in the Development Agreement. That's important because the PLA used the same strategy in
the Trendwest instance where they were looking to change the Development Agreement and Mr. Causseaux
(the AHE for that issue) recommended against that.
From a non-legal perspective, Mr. Hale continued, there are either good decisions that are well thought out
and well supported in fact and law, or there are flawed decisions. What PLA is suggesting is that there is a
third category called unfavorable decisions. Decisions that they think get in their way or are against their
Page 6
Commissioners Meeting Minutes: Week of May 27,2008
best interest. He doesn't think that's a consideration. There have been a series of flawed decisions coming
out of original hearings. The issue is why aren't decisions coming out of the original hearing in better form.
Mr. Hale then reviewed State laws that require consistency between the Development Agreement and the
underlying legislation such as RCW 36. 70B.170 Development Agreements Authorized. If you change the
Development Agreement and don't change LUPO there will be an inconsistency which is in violation of
State law. These laws are in place to provide certainty to the developer and to the public. He doesn't think
this will work as they suggest.
Mike Belenski stated that it would be nice to have the information packet provided prior to the hearing so
that people can read it. The people in front of him are speaking and interrupting him which has happened
before and he would like that to end and some people are allowed to speak longer than others.
Hearing no further comment the Chair closed the public testimony portion of the hearing. David Wayne
Johnson explained that the written public comment period ended on 4:30 p.m. last Friday and that is why the
staff report did not make it into the packet for this meeting.
Al Scalfreported that the adoption of the Comprehensive Plan in 1998 was also when the procedural due
process requirements were adopted. In 1997 RCW 36.70B was passed as a regulatory reform known as the
Local Project Review Act. This legislative action provided for one open record hearing and one closed
record appeal, defined a substantially completed application which was required to be completed by staff in
28 days, and a permit decision was required in 120 days unless SEP A was required. The County has had a
Hearing Examiner system since the early 1990s. The Hearing Examiner held the open record hearing and up
until August 28, 1998 the Board of Commissioners was the closed record hearing body. In 1998 the closed
record appeal was moved away from the Board of County Commissioners to an AHE, subsequently that put
the Commissioners in their legislative role and allowed them some freedom away from appearance of
fairness, conflict of interest and other such issues.
Chairman Johnson stated that he needs more information on the successor issue from the Prosecuting
Attorney's Office. Commissioner Sullivan moved to have this matter scheduled during the June 16, 2008
regular meeting for the Board to deliberate and possibly make a decision pending legal advice on the issues.
Commissioner Austin seconded the motion which carried by a unanimous vote.
Board of Equalization Interviews and Possible Appointment of New Member: Robert
Hinton withdrew his application and Gloria Bram who was scheduled for an interview did not make her
scheduled appointment. The Board then interviewed Cassandra Brotherton and Dave Garing.
Due to his length oftime in Jefferson County, his experience before the Board of Equalization and the State
Board of Tax Appeals, Commissioner Austin moved to appoint Dave Garing to an unexpired term on the
Board of Equalization. Commissioner Sullivan seconded the motion which carried by a unanimous vote. Mr.
Garing's term will expire on May 11,2010.
Page 7
Commissioners Meeting Minutes: Week of May 27, 2008
The meeting was recessed at the conclusion of the interviews of persons interested in serving
on the Board of Equalization and reconvened at 1:30 p.m. with all three Commissioners present.
County Administrator Briefing Session: The following items were discussed:
1. Al Scalf provided background information to the Board for the meeting with the Quinault Nation and
the Grays Harbor County Commissioners on Thursday.
2. The notice from Jim Tracey regarding the Critical Areas Ordinance.
3. Al Scalf updated the Board on the Mystery Bay mooring buoy situation.
4. The meetings the Board will be attending this evening.
5. E-mail to Tim Caldwell regarding the Port Townsend ferry.
Letter to the Department of Transportation re: Mitigation Proposals for Ferry Services
During the 2009 Hood Canal Bridge Closure: Commissioner Sullivan moved to have the Chair sign a
letter to the State Department of Transportation regarding the ferry services proposed as mitigation during
the closure of the Hood Canal Bridge in 2009. Commissioner Austin seconded the motion which carried by
a unanimous vote.
NOTICE OF ADJOURNMENT: Commissioner Austin moved to adjourn the meeting at
approximately 3 p.m. Commissioner Sullivan seconded the motion which carried by a unanimous vote. The
next meeting of the County Commissioners is a special meeting with the Grays Harbor County
Commissioners and the Quinault Indian Nation at the Grays Harbor County Courthouse at 1 p.m. in
Montesano on May 29,2008.
~buf
MJ~a~ ,,' ~.~D
~' ""I'" /)'L' t.
Se,' ~.' " ,.;', ','
~\,,,,.,\, """, ",.I,~;' . ~i
'" . ,~I J"") "'I
':...\ \ I ~ It: .' ~ ~ '
:J \" -, '. u
"'.. .' "",- -/ ;
. 'f Yo' ' ,;I.
, .. '~1 i. . -. "
, .. 1tIi. _,
"/l'.~,...,-. ~ ,,3
/' '!;J.,>'/
(j((.~>2'iT';'l" ~ C\-tU4~
Lorna Delaney, CMC /1
Clerk of the Board.J
JEFFERSON COUNTY
BO OF COMMISSIONERS
, Chair
Davi ~~~#'~
J~~
Page 8
f 'I
i~ <)\A.'o~~ 1\1fd It-\- ()l,Lb~c' \-\eo..~\V\Pf 8fdJll[~
c,~~. '1)eD ~ Id-?{Io~ ~
Lewis J. Hale
28 Heron Rd
Port Ludlow, W A 98365
May 27, 2008
HEAA\NG RECORD
Jefferson County Board of Commissioners
P.O. Box 1220
Port Townsend,
W A 98368
Dear Commissioners:
Re: Proposed Amendment to the Port Ludlow Development Agreement
There are four questions that need to be evaluated as you consider Port Ludlow
Associates proposal:
1. Should you consider the suggested amendment, i.e. does it benefit the
community?
2. Can you implement the suggested amendment?
3. Are all of the necessary parties included?
4. Can the change be implemented without changing LUPO?
Let me respectfully suggest that the answer to all four questions is no.
Should the BoCC agree the proposed amendment?
The proposed amendment offers no benefit to the community and poses some downside
to the county and the residents of Port Ludlow. The system is working and has served the
county and the community well. Several recent appeals have highlighted errors of fact
or law in decisions. The result of these appeals has enabled citizens to expeditiously
correct errors. This is good for the community. The need to go directly to Superior
Court limits the ability of citizens to have these decisions corrected without the expense
of an attorney. As an example, I believe that the county, the community and PLA would
have been better served if the recent Hearing Examiner Decision on the Iron Mountain
Quarry could have proceeded to an Appeal Hearing rather than Superior Court. Further,
the Appeal Hearing Examiner process results in better decisions. Appeal Hearing
Examiners are land use experts while Superior Court judges are generalists.
... fi ;...';
I
If there was a consistent pattern of Hearing decisions being appealed, sustained on
appeal and then appealed to Superior Court, I might have some sympathy to the argument
that the appeal hearing examiner is unnecessary. However, this is not the case.
I have participated in two appeals and in both cases the decisions were modified or over
turned. The most specific example is the Trendwest appeal decision by Mr. Galt. If you
have not read this decision, I recommend it to you. While it can be debated if Trendwest
would have been good or bad for the community, there is no question that it was not a
permitted use in a single family zone and that the original decision was wrong. Therefore
it seems to me that the question must be not what is the most expedient and cost effective
for PLA, but rather what process obtains the correct legal result for the community and
the citizens of Jefferson County. I think it is noteworthy that while PLA filed an appeal
of Mr. Galt's decision in Superior Court, they did not pursue it. I believe this is because
the Galt decision was well founded in fact and law. Instead, PLA attempted a similar
approach of looking to circumvent the MPR Code by amending the PLDA, an option you
will recall Mr. Causseaux recommended against. And it is not clear that costs are always
higher under the appeal hearing examiner system. For example, the challenge of the Iron
Mountain Quarry in Superior Court will likely cost the county more than an appeal
hearing.
It is also not always true that appeal decisions are automatically appealed to Superior
Court, thus making the appeal hearing redundant. Rather, I believe the appeals stop once
there is a decision that is well founded. It is common sense that neither PLA nor
members of the community will spend money to challenge a well founded decision. As
an example, I have been involved in two appeals and in neither case did I nor PLA pursue
the appeal in Superior Court (although as noted above PLA did file, but did not pursue an
appeal on Trendwest). I believe that from a cost standpoint it is in the best interest ofthe
county to have contested decisions resolved at the lowest possible level.
Lastly, the Appeal Hearing Process is much more expedient than an appeal to Superior
Court. Under LUPO decisions are required to be rendered within 60 days of the original
hearing decision and not more than 10 days after the appeal hearing.
Can the BoCC agree the amendment?
The answer is clearly no based on both the PLDA as well as the applicable state
regulations.
1. The PLDA 13.1 states, "The development standards identified in this
Agreement shall apply to the Pope Property for the term of this
Agreement..." There are a few exceptions noted but none apply This is
consistent with RCW36.70B.170 which uses almost identical language: "A
development agreement must set forth the development standards and other
- ~., ""'. ~
I
provisions that shall apply to and govern and vest to development, use and
mitigation of the development of the real property for the duration specified
in the agreement".
PLDA Section 3.13 also requires that "A development agreement shall be
consistent with the applicable development regulations adopted by a local
government planning under chapter 36.70A RCW." RCW 36.70B.180 further
supports this, providing:
"A development agreement and the development standards in the
agreement govern during the term of the agreement, and may not be
subject to amendment to a zoning ordinance or development standard or
regulation or a new zoning ordinance or development standard or
regulation adopted after the effective date of the agreement".
The plain language is quite clear. First, the underlying development standards must
remain in place for the term of the agreement and, second, they are not subject to
amendment to new regulations adopted after the effective date of the agreement. This is
exactly what is being proposed i.e. to make the MPR subject to new regulations adopted
after the effective date of the PLDA.
Further, it should be noted that the PLDA was adopted under chapter 36.70B RCW.
Jefferson County Resolution 42-00, Recital 4; PLDA 1.3.3. A development agreement
must be consistent with the applicable County GMA development regulations and must
specify the development standards to which the project is vested. RCW 36.70B.170
2. The Amendment Contravenes Many Purposes of the PLDA
The PLDA repeatedly emphasizes the importance of planning and predictability
not only to the parties to the development agreement, but also to residents of Port Ludlow
a. One of the stated purposes of the PLDA is to further public health,
safety, and welfare by allowing development to take place in a
predictable manner consistent with the Comp Plan and MPR Code.
Resolution 42-00.
b. Coordinated planning of the MPR provides unique opportunities
for the benefit of the County and existing and future residents of
the MPR. PLDA 1.3.9.
c. PLDA 1.3.13 is instructive. "Buildout of the Pope Property is
expected to occur over the next ten to twenty years. Pope,
Jefferson County, Port Ludlow community groups and members of
the public at large will invest considerable time in the County
; '~t ..
permit and review process for the future build out of the Pope
Property. A development agreement is an appropriate way of
providing certainty over time with respect to permitted densities,
uses, development standards and other aspects of the development
review process."
The PLDA can not be amended without the agreement of all parties.
Any amendment to the PLDA requires the agreement of successors in title. Just as PLA
claims standing by virtue of being a successor in title to Pope., the PLDA is clear that it
applies to all successors in title. PLDA 4.6. As a purchaser of property in Port Ludlow I
am a successor in title and thus the PLDA cannot be amended without my agreement,
which I am not prepared to do.
The proposed amendment does not and can not change the vested code
The PLDA is the implementation document for the MPR code which includes LUPO
(Jefferson County Ordinance #04-0828-98, Appendix E to the MPR Code). (LUPO
provides for the AHE. (LUPO, Section 18)). Thus, to achieve PL9A's goal, you would
also have to amend LUPO. PLDA 13.12.1, County Review Procedures and Standards, is
clear that the review is subject to the MPR Code (Appendix A) and LUPO (Appendix E).
PLDA Section 3.13 is also clear that all development proposed on Pope Property shall be
vested to and governed by the MPR Code and Appendices A-F of the PLDA. Amending
the PLDA does not change the vested code.
It appears from the material that I've seen that you were only provided a copy ofPLDA
Section 4.6 regarding amendments to the PLDA, so I have attached additional pertinent
sections. However, if you do not have a copy of the entire PLDA I urge you to obtain a
copy. I am not disputing that the PLDA can be amended, but rather that amending the
PLDA does not change the underlying code to which the property is vested, which is a
violation ofRCW 36.708.170(1) which requires consistency between the development
agreement and the applicable regulations adopted by a local government planning under
chapter 36.70A RCW..
For the above reasons it is requested that the proposed amendment to the PLDA
removing the Appeal Hearing Examiner be rejected.
itted,
.RCW 36.708.170: Development agreements ------;- Authqrized.
Page 1 of 1
RCW 36.708.170
Development agreements - Authorized.
(1) A local government may enter into a development agreement with a person having ownership or control of real
property within its jurisdiction. A city may enter into a develop-ment agreement for real property outside its boundaries as
p~o~P.!:2e.ose~~t.~~rvice ag~~r;8']eV:elopmenl.a~rgement-must. setforth.the~d.~v~ldpment~
lStanaalas_ana.otlJ.el.pl.Oy.l.s.lons.tnaLshall apply to ana govern"and-ve'st the develoP...rIlenj,~,...5ll!5! '1l!!!gatlo.lLo.Uhe~
dSVelop'mentofttie reall2rop..e.f.ty.fo'i:the.duration-specified ,in.the.agreement:-gdevelopm'ent.agreemerirsMiI~l5e-= r!._ ..
co"iiSisterit' with"applicable"development"regulations-adopted.by"a"1oca I~go\lernment Rlann ing.u nder.chapter. 36. 70AB CJjJ
(2) RCW 36.708.170 through 36.708.190 and section 501, chapter 347, Laws of 1995 do not affect the validity of a
contract rezone, concomitant agreement, annexation agreement, or other agreement in existence on July 23, 1995, or
adopted under separate authority, that includes some or all of the development standards provided in subsection (3) of
this section.
(3) For the purposes of this section, "development standards" includes, but is not limited to:
(a) Project elements such as permitted uses, residential densities, and nonresidential densities and intensities or
building sizes;
(b) The amount and payment of impact fees imposed or agreed to in accordance with any applicable provisions of
state law, any reimbursement provisions, other financial contributions by the property owner, inspection fees, or
dedications;
(c) Mitigation measures, development conditions, and other requirements under chapter 43.21C RCW;
(d) Design standards such as maximum heights, setbacks, drainage and water quality requirements, landscaping,
and other development features;
(e) Affordable housing;
(f) Parks and open space preservation;
(g) Phasing;
(h) Review procedures and standards for implementing decisions;
(i) A build-out or vesting period for applicable standards; and
U) Any other appropriate development requirement or procedure.
(4) The execution of a development agreement is a proper exercise of county and city police power and contract
authority. A development agreement may obligate a party to fund or provide services, infrastructure, or other facilities. A
development agreement shall reserve authority to impose new or different regulations to the extent required by a serious
threat to public health and safety.
[1995 c 347 9 502.]
Notes:
Findings --Intent -- 1995 c 347 ~~ 502-506: "The legislature finds that the lack of certainty in the approval of
development projects can result in a waste of public and private resources, escalate housing costs for consumers and
discourage the commitment to comprehensive planning which would make maximum efficient use of resources at the
least economic cost to the public. Assurance to a development project applicant that upon government approval the
project may proceed in accordance with existing policies and regulations, and subject to conditions of approval, all as
set forth in a development agreement, will strengthen the public planning process, encourage private participation and
comprehensive planning, and reduce the economic costs of development. Further, the lack of public facilities and
services is a serious impediment to development of new housing and commercial uses. Project applicants and local
governments may include provisions and agreements whereby applicants are reimbursed over time for financing
public facilities. It is the intent of the legislature by RCW 36.708.170 through 36.708.210 to allow local governments
and owners and developers of real property to enter into development agreements." [1995 c 347 S 501.]
http://apps.1eg.wa.gov/RCW/default.aspx?cite=36.708.170
5/26/2008
-,
-; ,,"
r~
III1IIIIIIII :=;...
. ...'fwean Cauntv," POfIIIIEICUtCEI IIiIO _.11
1791 developed homes, condominiums and platted lotst as well as a small resort. marina
and commercial center. All parties acknowledge there is a development cap for the Port
Ludlow MPR set forth in the zoning chapter as "Measurement ERUs" (Measurement
Equivalent Residential Units or MERUs). ]:otalallowed development within the Port
Ludlow MPR is 2,575 MERUs, with a residential unit maximum of2,250, as set forth in
zoning chapter adopted by the Board ofComtty Commissioners on October 4t 1999 in
Ordinance 08-1004-99.
1.3.13 ]3. uildoutofthe P~ Pro~js e~to()CCur over the next
. /,:..,::.<.,...,;?'":.'....::':.OC,:i'...-..:.:_..'...._:.-'...,. :;-....y;:-.-c,:...:,c:.::-_'. "c.c.'__'-,-,.'.''-:'''>;'/_ '. .-: .;"__.__'._ ....,:...:,.._,_,.:_'; ,....., ,............ . _.. .
tent()tw~ty.years..rdpe~J~JIe~~(~~unty.rortLudlow community groups and.
members of the public at large will invest considerable time in the County pennit and, i1
review pro~ for the fu~ ~uildout.ofthe p~ ~~~~~el.PPID:C!11J~~Q~
,..~~_.Jjme.WI~~1lI!.::- ..
~:-devel~C!lt.~~~~other ~ of~~~OJ!!gtr~ew~I!~. '"? ~
1.3.14 The parties to 1his Agreement acknowledge the separate document
entitled Memorandum of Understanding regarding the provision of sewer service (Sewer
MOU)t which document was approved by the Board of County Commissioners on
October 4, 1999.
1.3.15 Pursuant to RCW 36.70B.200, this Agreement was the subject of a
fifteen (15) day comment period, which ran ftom April 19.2000 to May 5
2000. and a hearing was held before the Jefferson ColDlty Board of COlDlty
Comtrtissioners on May 1 .. 2000. The Board of County Commissioners reviewed and
took official action adopting this Agreement on May 8 . 2000.
2. POPE PROPERTY BLEMENTS
2.1. POPE PROPERTY
The Pope Property consists of approximately 1200 acres. The Pope Property is
described with particularity in Exluoit I. A map showing the location of the Pope
Property within the Port Ludlow MPR is attached as Exhibit 2.
2.2 PORT LUDLOW MPRDESIGNATED ZONES
The Port Ludlow MPR includes the following designated zones. with permitted
uses as defined in Port Ludlow MPR Zoning Chapter oftbe Jefferson County Code.
attached as Appendix A hereto:
· Single Family (MPR-SF)
· Single Family Tracts (MPR-8FT)
· Multiple Family (MPR-MF)
dl:1.....d"u....
February 11,2000
3
/~
.c.
. -'-
-:.
'111111111111 ~:~~,;:..
Jeffenon County, WA POPE ~ lIDO - _...
Property buildout. However, the parties acknowledge tha:t~m~~_i,fi~~t~g~~_,tgthe proposed
development will occur during the buildout period in order toachi~veavan.ety of
purposes, including: incorporation ofnewinfonnation;responding to changing __
community and market neqis; ,encouraging reasonably priced housing; and encouraging,iu
modifications that provide comparable benefit or functionalequivalent>with no - --
significant reduction ofpublic~enefits or increased cost to the developIIlent(collectively,
"Flexibility Objectives'').
. ----- -.
3.12 CG0BNTY~PROCESSINGJtND.REVlEW
3.1 tl:l=COiiii~RCView RmCedures:and-Si8ii'diM~
'the~r~Yi~Yf.~9;~I>-rg~~~f"Iu:oP<>"Se"d:"development~applicatio11S'Propose<P
btto.p.e_f~Rope:P.roper&.:sliali.be-piJJ:s:uanUo:the:.Rort:Uialow--M:PR':"'Zoning:-QiQiiianeeJ-.-_ _-__
((~ii:A).and~tlie.CountY.'S"'"I:.and:Use7ApplicatiOO:RroceaiiiEs:oro,jn:ulce,.Ordiiiaiice~
-" tPa:-0828-98,-wliicll.is.attach""eC:I:ifi:"AWeffdix~EO
3.12.2 SEPA Compliance
3.12.2.1 Prior EIS. The parties acknowledge that potential impacts
and mitigation measures for certain future development of the Pope Property have been
reviewed in prior environmental documents, including environmental impacts from the
development of Ludlow Bay Village, which is in the resort vicinity of the Port Ludlow
MPR The parties acknowledge that the prior EISs reviewed potential impacts and
mitigation regarding potential development on a macro-level and were not project-
specific EISs.
The prior reviews were published in the following documents:
Draft Environmental Impact Statement for Inn at Port Ludlow (October 1992);
Inn at Port Ludlow. Final Enviroinnental Impact Statement (April 1993);
Port Ludlow Development Program. Draft Environmental Impact Statement (October 1992);
rt Ludlow Develo ment Pro . aI Environmental 1m act tatement (April 1993).
3. 12.2.2 Future SEP A Review for Individual Proiects. The parties
agree that this Agreement and the prior EISs set forth the regulations and certain
mitigation requirements to be app.ied to future Pope Property development proposals.
The parties further agree that new environmental review (SEPA compliance) shalI be
required for each future project that is not categorically exempt from SEP A review.
Relevant information from prior EISs shall be used to the fullest extent possible in future
SEP A review. This review may result in adoption of the prior EISs, issuance of an
addendum or supplement to the prior EISs, or issuance of a new threshold detennination
of non-significance or significance, incorporating information from the prior EISs. The
devagmtfinal
February II, 2000
6
'..
.r.
.. ".
, <.
"
~ 'IIIIIIIIIIII:~,;~
Jeffenon County, WA POPE RESOURCES RESO III..
scope of future environmental review shall be limited to cOnsidering only information of
how or whether the new or modified projects differ from or exceed the scope of the prior
EISs and resulting potentially significant adverse impacts relating to project differences
or changed scope.
3.12.2.3 Nothing in Section 3.12.2 shall release Pope or its
successors, successors in title or assignees from complying fully with the terms of the
Port Ludlow MPR Zoning Ordinance (Appendix A) regarding the mandatory
Supplemental EIS that is and shall be required for any 'resort plan development' as
described in Section 3.904 of the Port Ludlow MPR Zoning Ordinance.
3.13 VESTING OF DEVELOPMENT STANDARDS AND MITIGATION
;~e~CIopment.proposed:on:ROpe.l!roperty:S!!.allb~ested.to.an~gcrvemea:.Qy_~ ~
the..E.ortLudlow-MPR-ch~E:2f.tffe:lefferson~County-Zoning'eode (as defined.in_'
~ion-=-3~:-ana:-A~dices-A,":F)~ana.Sliall:D~jmP'leniente<rtJroUgh plats, short plats, .
binding site plans, boundary line adjustments, site development permits, building permits
and other permi~ and .approvals i~ed_~y the County.. ~~~:~~~"ilrbC.theJ
~e.as-tn"e-Uftiil ofthis-A~enJ. (Ei~t'as.othemL~~proY1aea:m.Sectton~
6:-l3:-1 tbrough..2:13:3:6elo:w,.any.new.or.aiffereo.tJlCYd.9jiiii'eiifit3iidards.adopted_bY.'the:'-
Coun!y'lluring.the.tenn~2.tthis.~ent.sha1l'IiOtJJP.P"IY:tO_P.QP.e.P.iO~7j~~Xt~c
this Agreement does not establish standards or requirements covering a subject, element
or condition, then the development approval sought shall vest to and be governed by the
County codes, regulations and stan2ards~in effect upon the date of the future application.~
~deveIOpmeB~.sWfd3rdSci,,~iMt1tih^greemeDlSlialtapPJY.:Jp~tlfe:EOpe:EfO~. f
1CfID;the:tem10ftlris~~ ~
- 3.13?I....Public health or safety requirements. The Board of County
Commissioners~e the authority to modify one or more of the standards or
requirements of development for the Port Ludlow MPR during the term of the
Agreement, after notice, a public hearing and adoption of findings and conclusions, to the
extent required to avoid a serious threat to public health or safety, as provided in RCW
36.70B.170.
? .
3~l3:2 Endangered Species Act and other Federal mandates. The Board
of County Com:riissioners reserves the right to enforce new or different standards of
development mandated by federal or state law, such as the Endangered Species Act.
3f1:3:3- Notwithstanding the foregoing, the Uniform Building Code,
Uniform Fire C~de and other construction codes in effect on the date of the development
application, building permit or other construction application shall apply, except no code
changes after the date of this Agreement shall require retrofitting or modification of
utilities, facilities or other infrastIUcture which are installed or approved to be installed in
devagrntfinal
February 11,2000
7