HomeMy WebLinkAboutDECISION Mitchell Street and Duffy Avenue, Road Vacation, Recommendation of Approval to Board of County Commissioners, October 2024
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – PORTIONS OF MITCHELL
STREET AND DUFFY AVENUE –
PROJECT FILE NO. 97024001
Page 1 of 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
Before Hearing Examiner Gary N. McLean BEFORE THE HEARING EXAMINER
FOR JEFFERSON COUNTY
In the Matter of the Petition to Vacate a
portion of platted Mitchell Street and
Duffy Avenue rights-of-way, submitted by
ROBERT ZIMMERMAN &
ELIZABETH ORLING,
Principal Petitioners/Property Owners
__________________________________
)
)
)
)
)
)
)
)
)
)
Project File No. 97024001
FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF
APPROVAL TO THE BOARD OF
COUNTY COMMISSIONERS
I. SUMMARY OF RECOMMENDATION.
The petition should be granted, vacating portions of County right-of-way now
known as Mitchell Street and Duffy Avenue.
II. JURISDICTION.
This matter came before the Hearing Examiner who is responsible for conducting a
public hearing on all petitions for road vacations; reviewing such petitions, the written staff
report, and applicable criteria found in JCC 12.10.110; and receiving public testimony in
support of or opposing the proposed road vacation. Following the public hearing, the
Examiner is tasked with providing a written recommendation to the Board of County
Commissioners to grant or deny the petition, with any conditions of approval. (See JCC
12.10.080).
III. RECORD.
Exhibits entered into evidence as part of the record, and an audio recording of
testimony provided at the public hearing, are maintained by the Jefferson County Department
of Public Works, in accord with applicable law. In this Recommendation, materials included
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – PORTIONS OF MITCHELL
STREET AND DUFFY AVENUE –
PROJECT FILE NO. 97024001
Page 2 of 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
as part of the Record are numbered and identified as follows:
Staff Report, from Colette Kostelec, Engineer III, Dept. of Public Works, recommending
approval, with the following exhibits:
1. Vicinity Map and Annotated Parcel Map;
2. Distribution list and sample notice transmitted to various departments and agencies;
3. List of adjacent property owners with sample notice, map of property owners receiving notice;
4. Publication Notice; and
5. Declaration of Posting.
County Engineer’s Report, from Monte Reinders, Public Works Director/County Engineer,
recommending approval, with the following attached exhibits:
A. Vicinity and parcel maps;
B. Annotated Plat map;
C. Petition for Vacation of Right-of-Way;
D. Contour and Lidar map;
E. DCD Report; and
F. Appraisal Report.
Below is a list of individuals called to present testimony under oath at the duly noticed
public hearing for this matter, held using the Zoom online meeting platform coordinated by
County staff on July 26, 2024:
1. Colette Kostelec, Engineer III/Right-of-Way Representative, for the County’s Department of
Public Works, prepared the Staff Report issued for this petition, summarized her
recommendation of approval with limited conditions, noted that the County received no
written comments before the hearing in opposition to the requested vacation, explained how
the platted rights-of-way will all revert to the principal petitioners, Mr. Zimmerman/Ms.
Orling; and
2. Robert Zimmerman, one of the principal petitioners, appeared on his own behalf, expressed
satisfaction with Staff Report, did not object to Staff’s analysis or recommenced conditions,
explained his point of view about a possible stream on or near his property.
No one appeared during the public hearing to submit written comments or verbal
testimony opposing or questioning this road vacation. The Examiner has had a full and fair
opportunity to consider all evidence submitted as part of the record; has reviewed and
researched relevant codes, caselaw, and ordinances; reviewed current mapping and legal
instruments relevant to this application and is fully advised. Accordingly, this
Recommendation is now in order.
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – PORTIONS OF MITCHELL
STREET AND DUFFY AVENUE –
PROJECT FILE NO. 97024001
Page 3 of 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
IV. FINDINGS OF FACT.
1. Any statements of fact or findings set forth in previous or subsequent portions of this
Recommendation that are deemed to be findings of fact are hereby adopted and incorporated
herein as such. Captions are used for some groups of findings but should not be construed to
modify the language of any finding, as they are only provided to make it easier for readers to
identify some of the key topics addressed in this Recommendation.
2. The portions of Mitchell Street and Duffy Avenue at issue in this road vacation
petition are located west of Thorndyke Road, which is inland and west of Hood Canal, near
the principal-petitioner’s home, addressed as 2722 Thorndyke Road, on tax parcel no. 954-
600-201, in unincorporated Jefferson County. The rights-of-way to be vacated essentially
form the northern and western border of Petitioner’s triangular parcel, with Rayonier Forest
Resources, LP/Pope Resources (“Rayonier”) owning property on the other side of the subject
right-of-way. (See Engineer’s Report, Findings on page 1-2; Staff Report, page 1; Ex. C,
Petition for Vacation; and Ex. A, Vicinity Map and parcel map, showing rights-of-way
proposed for vacation, a copy of which is republished below).
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – PORTIONS OF MITCHELL
STREET AND DUFFY AVENUE –
PROJECT FILE NO. 97024001
Page 4 of 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
3. As shown above, and as explained in the Staff Report and Engineer’s Report issued
for this matter, Rayonier owns all property on the other side of the requested road vacations
and has joined the principal-petitioners in seeking approval of the pending vacations. (Staff
Report, page 1; testimony of Ms. Kostelec; Ex. C, Petition, last page reflecting signature by
Rayonier representative).
4. The petitioners ask that the County vacate the entirety of the 30-foot-wide rights-of-
way that were originally dedicated to the County in the Plat of Goodfellow’s Manhattan
Beach Tracts, filed on July 8, 1908 and recorded in Volume 2 of Plats Page 122, records of
Jefferson County. (Engineer’s Report, page 1, and Exhibit B, highlighted plat illustration).
5. As noted above, Principal Petitioners are the owners of Tax Parcel 954-600-201
legally described as Block 2 of Goodfellow’s Manhattan Beach Tracts, except that portion
conveyed to Jefferson County for Thorndyke Road. Rayonier Forest Resources, LP/Pope
Resources (Rayonier) owns the property on the other side of the subject rights-of-way, and
signed the Petition for vacation; therefore 100% of the abutting property owners have joined
in the petition to vacate. (Engineer’s Report, pages 1-2, and Exhibit C, Petition).
6. Although Rayonier and Zimmermann parcels potentially benefit from the subject
rights-of-way, only the Zimmermann property is within the plat of Goodfellow’s Manhattan
Beach Tracts. Subject to any evidence that the original dedicator (John A. Goodfellow)
owned any of the abutting property now owned by Rayonier at the time of platting, the
presumption is that the entire width of these rights-of-way would revert to and attach by
operation of law to the Zimmermann parcel upon vacation. (Engineer’s Report, page 2).
7. No one appeared to offer testimony or evidence at the public hearing – or submitted
any written comments in the time period after the public hearing – to rebut the County
Engineer’s presumption, specifically including representatives for Rayonier. Accordingly,
the Examiner finds and concludes that the entire width of the rights-of-way at issue in this
Petition should revert to and attach by operation of law to the Zimmermann parcel upon
vacation.
8. According to the Petition, the reason for the requested road vacation is as follows:
(See Ex. C to County Engineer’s Report, Petition for Vacation of Right of Way, on page 1,
Petitioner’s type-written response on form).
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – PORTIONS OF MITCHELL
STREET AND DUFFY AVENUE –
PROJECT FILE NO. 97024001
Page 5 of 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
9. Neither of the subject rights-of-way have ever been opened as a public road or been
maintained by Jefferson County. Therefore, the subject rights-of-way meet the definition
provided in JCC 12.10.020 for “Class A” road, namely a road “established, dedicated to,
deeded to, or otherwise established by the county for which no public expenditures have been
made in the acquisition, improvement, or maintenance of same except those roads platted
prior to March 12, 1904, which remained unopened for public use for a period of five years
after authority was granted for opening them.” (County Engineer’s Report, page 2).
10. The subject rights-of-way do not provide for overall area or neighborhood circulation
for the general public, nor is there any anticipated future need for this right-of-way to serve
the general public. The southern portion of Duffy Avenue right-of-way has steep slopes and
benches indicating possible past landslide activity. (County Engineer’s Report, page 2; See
Exhibit D, contour/lidar map).
11. As credibly explained in the unrebutted Engineer’s Report, RCW 36.87.040 and JCC
12.10.050(2)(e) require the County Engineer to give an opinion as to whether the public will
benefit by the vacation; however, neither provide guidance as to what might be considered a
“public benefit” when vacating a public right-of-way. The legislative body is held to be the
proper entity to weigh public benefit, and there is a presumption that an ordinance approving
a street vacation was validly enacted for a public purpose (London v. Seattle, 93 Wn.2d 657
(1980)). In the absence of any need for a road right-of-way for the benefit of the general
public (circulation, trails, utilities, etc.), typically any benefit would accrue to the property
owners with frontage on the vacated right-of-way. These benefits might include additional
building space, room for septic systems, green-belt buffer, the ability to keep the public from
trespassing on their property, or other benefits. Benefits to the public and County could
include reduced road maintenance costs, reduced liability for managing public right-of-way
(such as garbage dumping, timber theft, danger trees, or abandoned vehicles), and increased
property tax. All of these reasons have been used in the past to support road vacations and
could support a finding of public benefit for the vacation of the subject rights-of-way.
(County Engineer’s Report, on page 2).
12. As provided in WAC 197-11-800(2)(i), road vacation matters are exempt from SEPA
review.
13. Staff confirmed that all public notices were provided in accord with applicable law,
and that no one submitted any comments or questions that would serve as a basis to deny the
requested petition. (Staff Report; Exhibits 2, 3, 4, and 5, related to notice and comments;
Testimony of Ms. Kostelec).
14. As noted above, no one submitted any written comments or testimony during the
public hearing process opposing the pending road vacation petition.
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – PORTIONS OF MITCHELL
STREET AND DUFFY AVENUE –
PROJECT FILE NO. 97024001
Page 6 of 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
Review criteria for all road vacation petitions, found in JCC 12.10.110.
15. JCC 12.10.110, captioned “Review Criteria”, mandates that road vacation petitions
shall be reviewed according to the following criteria, numbered 1-7. Additional findings by
the Hearing Examiner are provided in italics below each of the criteria:
(1) The proposed road vacation complies with the Jefferson County comprehensive
plan and any other applicable plans, policies, or ordinances.
County staff from the Public Works and Community Development reviewed the petition and
expressed no concerns regarding the requested vacation. Community Development staff
generated a report, summarizing their review of County codes and policies, recommending
approval of this petition. (Staff Report, page 1; Ex. E, DCD report recommending approval
of this petition; County Engineer’s report).
(2) Roads should not be closed, vacated, or abandoned when land uses or
development plans, or occurring patterns, indicate their usefulness for area
circulation. Prior to a vacation decision, an examination should be made of its
probable effect on overall area circulation in the neighborhood. Single or multiple
vacations should be considered a positive tool toward improving neighborhood
circulation and accesses.
The segment of roadways at issue provide no circulation opportunities in the affected area,
with DCD Staff offering the following opinion in their report, included as Ex. E: “Based on
the topography and development regulations of this area, DCD believes that it is unlikely
that these rights-of-way would ever be developed.”
(3) The effectiveness of fire, medical, law enforcement, or other emergency services
should not be impaired by the closure, vacation, or abandonment of county roads.
Appropriate authorities should be consulted with respect to this policy.
The effectiveness of emergency services will not be impaired by this road vacation. The
rights-of-way have never been developed, and they have topographic challenges explained
in Ex. E. No opposition to the Notice of Intent to Vacate the subject right-of-way was received
from the Sheriff’s office, Fire District #1 or JeffCom911, nor was any opposition evidence
provided through the entire public hearing process. (Engineer’s Report, page 3; Staff
Report, page 1, confirming no objections to requested petition).
(4) Roads should not be closed, vacated, or abandoned when such routes can
effectively be used for utility corridors. Suitable utility easements could be retained
as a means of satisfying this policy. Public and private utility companies and their
plans should be consulted with respect to this policy. In compliance with
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – PORTIONS OF MITCHELL
STREET AND DUFFY AVENUE –
PROJECT FILE NO. 97024001
Page 7 of 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
RCW 36.87.140, the board of county commissioners may retain an easement within
the subject vacated area for the construction, repair, and maintenance of public
utilities and services.
No opposition from public or private utility companies or providers was received in response
to the Notice of Intent to Vacate the subject right-of-way. However, if necessary, and in
compliance with RCW 36.87.140 and JCC 12.10.130(2)(a), the Board of County
Commissioners may retain an easement within the subject vacated area for the construction,
repair, and maintenance of public utilities and services.
(5) Roads should not be closed, vacated, or abandoned when such routes can be
effectively used for trails or pathways. Suitable trail easements could be retained as a
means of satisfying this policy. The Jefferson County parks, recreation, and open
space plan should be used as a guide to determine trail needs.
Since the rights-of-way are essentially dead-ends, and do not provide direct public access to
water or a beach, and the fact that there are no Jefferson County Parks located within or
currently proposed in the area, the subject right-of-way is not a prime candidate for a public
trail.
(6) In compliance with RCW 36.87.130, no county road or part thereof should be
vacated that abuts on a body of salt or fresh water, unless the vacation is to enable
any public authority to acquire the vacated property for port purposes, boat moorage,
or launching sites or for park, viewpoint, recreational, educational, or other public
purposes, or unless the property is zoned for industrial purposes.
The subject right-of-way, although close to Hood Canal, does not abut the water, so this
statutory prohibition does not apply.
(7) The proposed vacation will not land lock any parcel of property.
The subject right-of-way is currently undeveloped, unused, and features topographic
challenges noted by DCD staff. The only parcels that could benefit are those owned by the
Petitioners, Zimmerman and Rayonier, and all Petitioners’ properties have alternate access
directly from Thorndyke Road. (Engineer’s Report, page 3).
Compensation required for Class A and Class B rights-of-way.
16. Again, for reasons explained above, the County Engineer determined that the
segments of roadway at issue in this Petition are “Class A” right-of-way. (County Engineer’s
Report, on page 2, finding no. 6). JCC 12.10.120 requires the Principal Petitioner to
compensate the County for all Class A and Class B vacated rights-of-way in compliance with
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – PORTIONS OF MITCHELL
STREET AND DUFFY AVENUE –
PROJECT FILE NO. 97024001
Page 8 of 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
RCW 36.87.120. Accordingly, any resolution approving vacation of the subject right-of-way
shall not be effective until compensation is provided as described in the following findings.
17. JCC 12.10.120(1) provides: “Base Payment. The Principal Petitioner shall pay, with
respect to the vacation of either or both Class A and Class B roads or rights-of-way a sum
equal to one-half of the current fair market value (as of the date of the petition) of the area
so vacated if the county holds title through a dedication, or the full current fair market value
(as of the date of the petition) if the county acquired the subject rights-of-way other than by
dedication, e.g., fee simple interest.”
18. The unrebutted County Engineer’s Report explains that the County acquired the
subject rights-of-way through dedication. Therefore, if the vacation is approved, the Principal
Petitioner shall be required to compensate the County for one-half of the fair market value of
the property. Based on an appraisal commissioned by the principal-petitioner, Mr.
Zimmermann, the fair market value of the subject rights-of-way is $21,000. (See Engineer’s
Report, and Exhibit F, appraisal).
19. JCC 12.10.120(2), imposes an “Additional Payment” requirement with respect to
vacation of a Class A road or rights-of-way, reading in relevant part as follows: “...in addition
to the base payment described above [in subsection (1)], the principal petitioner(s) shall pay
to the county any and all other administrative costs incurred by the county in vacating the
road.” The County Engineer’s report explains that, to-date, the Principal Petitioner has paid
a total administrative fee of $1,605.78, which is the 2024 fee for vacating roads and includes
17 hours of staff time. Petitioner shall be liable for any staff time over 17 hours and any other
administrative costs incurred in processing the application. The Petitioner shall be required
to pay any fees and costs incurred which exceed the 2024 fee, whether or not the vacation is
ultimately approved. These would include, without limitation, the 2024 costs associated with
preparing for and conducting a hearing with the Hearing Examiner, preparation and issuance
of the Hearing Examiner’s report, reviewing documents submitted by the Petitioner,
document recording fees, and other associated expenses incurred by the County.
20. Based on consideration of all evidence in the record, subject to the recommended
conditions of approval, and subject to payment of all compensation due, the Hearing
Examiner finds and concludes that the petition satisfies all approval criteria and should be
granted by the Board of County Commissioners.
V. CONCLUSIONS OF LAW.
1. The Hearing Examiner has jurisdiction and responsibility to consider issues presented
in this petition and issue this detailed report and recommendation to the Board of County
Commissioners.
RECOMMENDATION TO APPROVE PETITION FOR
ROAD VACATION – PORTIONS OF MITCHELL
STREET AND DUFFY AVENUE –
PROJECT FILE NO. 97024001
Page 9 of 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
GARY N. MCLEAN
HEARING EXAMINER
FOR JEFFERSON COUNTY
2. Based on findings provided above, the pending request to vacate portions of Mitchell
Street and Duffy Avenue rights-of-way as described in the County Engineer’s Report satisfies
all review criteria provided in JCC 12.10.110.
3. The proposed conditions of approval included in the Engineer’s Report are supported
by a preponderance of evidence in the record, consistent with applicable law, and in the public
interest.
4. Any legal conclusions or other statements made in previous or following sections of
this document that are deemed conclusions of law are hereby adopted as such and are
incorporated herein by this reference.
VI. RECOMMENDATION.
Based upon all evidence in the record, and all findings and conclusions provided
above, the Hearing Examiner respectfully recommends that the Board of County
Commissioners should formally vacate the following segments of County right-of-way,
subject to Conditions of Approval set forth below:
Those portions of Mitchell Street and Duffy Avenue rights-of-way located west of
Thorndyke Road in the northwest quarter of the northwest quarter of Section 20, Township
27 North, Range 1 East, W.M., Jefferson County Washington, (see Exhibit A, vicinity and
parcel maps), both of which are 30-foot-wide rights-of-way that were dedicated in the Plat
of Goodfellow’s Manhattan Beach Tracts, filed on July 8, 1908 and recorded in Volume 2
of Plats Page 122, records of Jefferson County. (See Exhibit B, highlighted plat illustration).
[*Note: The County Engineer should include a formal legal description of the vacated
rights-of-way as part of any Council Resolution].
VII. CONDITIONS OF APPROVAL.
Before the requested road vacation can take effect, the Principal Petitioner shall:
A. Pay all required compensation owed to the County for the vacated right-of-way
and administrative process.
ISSUED this 11th Day of October, 2024
_____________________________
Gary N. McLean
Hearing Examiner