HomeMy WebLinkAboutDECISION Termination Point, SSDP for new Stormwater system, SDP 22-00019, October 2024
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
Before Hearing Examiner Gary N. McLean BEFORE THE HEARING EXAMINER FOR JEFFERSON COUNTY
Application for a Type III Shoreline
Substantial Development Permit for a
new Stormwater System, submitted by
JOHN MAGNUSON
(TERMINATION POINT PROPERTIES, LLC),
Applicant
(Location: In the Shine area, about 250-feet south
of SR 104, and 2,000 feet west of the Hood Canal
Bridge, in the Termination Point Subdivision, in
unincorporated Jefferson County)
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File No. SDP 22-00019
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
DECISION
I. SUMMARY OF DECISION.
The requested application satisfies applicable approval criteria and merits approval,
subject to conditions, including without limitation bonding or financial assurance measures
to ensure successful implementation, maintenance, and performance of mitigation mandated
as part of this Shoreline permit.
The proposed project is subject to compliance with all applicable development,
design, building code, critical areas, engineering, environmental, and other regulations,
including without limitation those requiring verification of performance, inspections,
monitoring, and maintenance associated with conditions or mitigation measures that might
be imposed consistent with this Decision or any subsequent approval, or authorization issued
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 2 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
by any state or federal agency or county department with jurisdiction over a particular aspect
of the Project as on-site work unfolds.
II. BACKGROUND AND APPLICABLE LAW.
The applicant, John Magnuson, for Termination Point Properties, LLC, submitted the
pending application for a Shoreline Substantial Development Permit for a new stormwater
drainage system designed to serve the existing Termination Point Subdivision (referenced as
“TPS” in the Staff Report and other application materials). (Exs. 2, 3, 4; Staff Report, page
5). There is no dispute that a 150-foot portion of the proposed stormwater outfall for the new
system is located within the County’s Shoreline jurisdiction, so the requested stormwater
system requires a Type III Shoreline Substantial Development Permit. (Staff Report, page
5).
While not fully addressed in the Staff Report, the County’s Unified Development
Code allows for consolidation of associated permit applications and approvals, where the
Administrator (Community Development Director) exercises discretion to refer what might
otherwise be a Type I or other type of decision made by the Director or a staff member to the
Hearing Examiner, who is empowered to consider all consolidated applications under the
County’s Type III public hearing and review process, or when the applicant determines that
they would like multiple applications for approvals to be processed collectively. (See Staff
Report, page 5; JCC 18.40.520(2)(a)(i); and JCC 18.40.030(2))1. In this matter, a separate
Type I stormwater permit has been reviewed separately from this Shoreline permit and cannot
be issued until or unless the requested Type III Shoreline Substantial Development Permit is
approved. (See Staff Report, page 5; and JCC 18.25.630(19) – “Where other approvals or
permits are required for a use or development that does not require an open record hearing,
such approvals or permits shall not be granted until a shoreline approval or permit is
granted.”).
The pending Shoreline Permit application was assigned file no. SDP 22-00019 and is
subject to public notice, public hearing, and a decision by the Jefferson County Hearing
Examiner. The project also required a separate State Environmental Protection Act (“SEPA”)
review, which resulted in a Determination of Non-Significance, which was not appealed. (Ex.
36, SEPA DNS issued for this project; Staff Report, pages 5-6).
1 JCC 18.40.030(2) reads as follows: “Optional Consolidated Permit Processing. An application that involves
two or more procedures may be processed collectively under the highest numbered procedure required for any
part of the application or processed individually under each of the procedures identified by this code. The
applicant may determine whether the application shall be processed collectively or individually. If the
application is processed under the individual procedure option, the highest numbered type procedure must be
processed prior to the subsequent lower numbered procedure.”
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
Jurisdiction of Hearing Examiner.
The County Code vests the Hearing Examiner with authority to hear and issue
decisions on applications for Type III land use decisions. (See JCC 18.40.040, explaining
Project permit application framework, Table 8-1, types of permits, decisions required, and
Table 8-2, showing final decision made by the Hearing Examiner on Type III land use
matters).
Burden of Proof.
As explained in JCC 18.25.670, Shoreline Permit applicants/proponents have the
burden of proving that the proposed development is consistent with the criteria set forth in
the Shoreline Management Act and the County’s Shoreline Master Program.
Shoreline Code Provisions of particular interest.
The Jefferson County Shoreline Master Program is codified in Chapter 18.25 of the
Jefferson County Code. With limited exceptions – none of which apply to this application –
provisions of the County’s Critical Areas regulations, found in Chapter 18.22 of the County’s
Code, are expressly adopted by reference and included as part of the County’s Shoreline
Master Program. (See JCC 18.25.060).
Express language in both the Shoreline Master Program (JCC Ch. 18.25.610(2)) as
well as Critical Areas regulations (see JCC 18.22.530) provide decisionmakers with authority
to impose conditions of approval deemed necessary to assure consistency with the Shoreline
Management Act and the County’s Shoreline Master Program, as well as those needed to
protect critical areas. County codes allow for “enhancement of buffer vegetation to increase
protection” for geologically hazardous areas, among other things, and are in addition to those
required under other grading and excavation standards, as well as stormwater management
standards. See JCC 18.22.530(3) captioned “Protection Standards.” If there is a conflict
between applicable published standards, the more restrictive protection requirement applies.
(id).
In the event the County’s Shoreline Master Program conflicts with other applicable
county policies or regulations, all regulations shall apply and unless otherwise stated, the
more restrictive provisions shall prevail. (JCC 18.25.070(4)).
As explained in JCC 18.25.080, captioned “Liberal construction,” the County’s
Shoreline Master Program “is exempt from the rule of strict construction; therefore this
program shall be liberally construed to give full effect to its goals, policies and regulations.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
Liberal construction means that the interpretation of this document shall not only be based
on the actual words and phrases used in it, but also by taking its deemed or stated purpose
into account. Liberal construction means an interpretation that tends to effectuate the spirit
and purpose of the writing. For purposes of this program, liberal construction means that the
administrator shall interpret the regulatory language of this program in relation to the broad
policy statement of RCW 90.58.020, and make determinations which are in keeping with
those policies as enacted by the Washington State Legislature.” (JCC 18.25.080).
Shoreline permits may include conditions to protect critical areas and shoreline
functions, including mitigation, enhancement, restoration, maintenance, and monitoring
measures supported by a bond or other financial assurance to ensure the mitigation and
monitoring are carried out successfully. (See JCC 18.25.270, captioned “Critical areas,
shoreline buffers, and ecological protection”).
As explained in JCC 18.25.610(2)(h), the County’s Hearing Examiner is vested with
the authority and responsibility to, at his or her sole discretion, require any project proponent
granted a shoreline permit to post a bond or other acceptable security with the county,
conditioned to assure that the project proponent and/or his or her successors adhere to the
approved plans and all conditions attached to the shoreline permit. Such bonds or securities
shall have a face value of at least 150 percent of the estimated development cost including
attached conditions.
Approval Criteria for Substantial Development Permit.
The criteria for approval of a Shoreline Substantial Development Permit include
without limitation those found in JCC 18.25.5402, the Shoreline Management Act (“SMA”,
see RCW 90.58.140), and state Shoreline regulations, particularly WAC 173-27-150, which
reads as follows:
WAC 173-27-150 Review criteria for substantial development permits.
(1) A substantial development permit shall be granted only when the development proposed
is consistent with:
(a) The policies and procedures of the act;
(b) The provisions of this regulation; and
(c) The applicable master program adopted or approved for the area. Provided, that
2 JCC 18.25.540 Substantial development permit criteria. To be authorized, all uses and developments shall be planned and
carried out in a manner that is consistent with this program and the policy of the Act as required by RCW 90.58.140(1),
regardless of whether a shoreline permit, statement of exemption, shoreline variance, or shoreline conditional use permit is
required.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
where no master program has been approved for an area, the development shall be
reviewed for consistency with the provisions of chapter 173-26 WAC, and to the
extent feasible, any draft or approved master program which can be reasonably
ascertained as representing the policy of the local government.
(2) Local government may attach conditions to the approval of permits as necessary to assure
consistency of the project with the act and the local master program. (Emphasis added).
III. RECORD.
All exhibits entered into evidence as part of the record, and an audio recording of the
public hearing, are maintained by the County, and may be examined or reviewed by
contacting the County’s public records officer.
Exhibits:
Staff Report, recommending approval subject to conditions, prepared by Project
Planner Greg Ballard, with 27 pages;
Exhibits 1-46, as described and numbered on the Exhibit Log prepared by Staff for
this matter, a copy of which is attached to this Decision.
Testimony: The public hearing for this matter was conducted using a mixed in-person and
online audio/video platform coordinated by County staff, with some Staff and members of
the public present in the designated County hearing room, and other participants able to
observe and speak online using sign-in details provided in public notices. The following
persons provided testimony under oath as part of the record during the open-record hearing
held on May 8, 2024:
1. Greg Ballard, Project Planner, prepared Staff Report and served as the primary Staff
representative through the public hearing, for Jefferson County Department of Community
Development;
2. John Magnuson, the applicant, appeared on his own behalf, accepted most of the Staff Report
analysis and recommended conditions, except for language addressing proposed planting
requirements, expressing preference for less planting, no tall trees required; he indicated he
could accept changes to proposed condition 20, that would be based on Ex. 8 as generally
described by Mr. Ballard, except for planting any tall trees, presumably to provide better
views from uphill properties; he acknowledged that he is associated with the person named in
multiple negative written comments included in the record, Mr. Trask; (*NOTE: The
Examiner takes notice that Mr. Magnuson is listed as the Registered Agent for the property
owner, Termination Point Properties, LLC, formed in 2011, with current filing expiring on
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
10/31/2025, with Russell Trask listed as Governor of Termination Point Properties, LLC3;
Mr. Trask signed copies of forms included as part of the application materials, included as
part of Ex. 2, and some consultant reports, including the Geotech Report (Ex. 7) addressed
to Mr. Trask);
3. Tammi Swanson, appeared in the designated hearing room, Chimacum resident, expressed
concerns about vegetation on site, hoping new plants would be native species;
4. Tony Brenna, local resident, submitted written comment not included in the record as Ex. 43,
listing personal knowledge and experiences observing how Mr. Trask and others violated
County codes undertaking allegedly unpermitted work in the Termination Point Subdivision,
leading to concerns about stability and safety;
5. Elena Brenna, local resident, submitted written comment not included in the record as Ex. 44,
listing personal knowledge and experiences observing how Mr. Trask and others violated
County codes undertaking allegedly unpermitted work in the Termination Point Subdivision,
concerns about replanting that needs to happen, concerns that the applicant/landowner will
comply with any permit requirements or codes; stability and safety;
6. Jan Wold, local resident, expressed concerns about the same landowner/development group
have a history of prior code violations that caused problems on the property; noted that no
development should occur on the south side of Linda View Drive; Expressed concerns about
water quality problems that might result from stormwater runoff, concerns that the property
needs to be allowed to heal before any new development occurs, prefers a moratorium, noted
that the existing conditions are terrible, but believes this proposal is still bad;
7. Marilyn Showalter, local resident, submitted written comments (Exs. 15, 40), explained how
the development team involved in this application have violated codes before, causing
problems, so if approved, she encouraged conditions/measures to assure the project and
mitigation is built/implemented as required; encouraged testing requirements with results to
be shared with the County; emphasized need for a meaningful remedy if requirements and
conditions are not followed; suggested a “trust but verify” approach with this applicant team,
as part of any maintenance requirements/conditions; noted that vegetation included in
replanting plans need to have deep roots, presumably to improve stability and reduce runoff;
Site Visit: The Examiner personally visited the project site and roadways in the vicinity
in connection with other recent applications for projects near the area.
IV. FINDINGS OF FACT.
Based on the record, and following consideration of all the evidence, testimony,
codes, policies, regulations, and other information included therein, the undersigned issues
the following findings of fact:
3 See WA Sec. of State’s publicly accessible online website portal for Business Information re: registered
corporations and charities, including LLC’s.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 7 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
1. All statements of fact included in previous or following sections of this Decision, that
are deemed to be findings of fact are incorporated by reference into this section as findings
of fact issued by the Hearing Examiner. Captions are for the benefit of the reader and should
not be construed to modify or diminish the meaning or scope of any finding, wherever located
in this Decision.
2. The applicant in this matter is John Magnuson, the agent for a legal entity known as
Termination Point Properties, LLC, with Russell Trask signing various application forms on
behalf of the LLC, which is the owner of properties at issue. (Ex.2, application materials;
WA Sec. of State, online business information for corporations).
3. A collection of properties with 56 (fifty-six) lots, known as the Termination Point
Subdivision (“TPS” in the Staff Report and parts of this Decision) was legally platted at some
point in the early 1960s. (Staff Report, page 1; Ex. 31, original plat, recorded in 1961).
4. The long-existing subdivision is about 25-acres in size and is situated about 250 feet
south of SR 104 and about 2,000 feet west of the Hood Canal Bridge in the Shine area of
unincorporated Jefferson County. Shine Road generally forms the northern edge of the
subdivision, with the waters and shorelines of Squamish Harbor (part of Hood Canal) forming
the southern edge. (Staff Report, page 1; Ex. 2, application materials; Ex. 6, project site
plans, showing vicinity maps).
5. There is no dispute that the Termination Point Subdivision was not designed to
include a stormwater drainage system that would satisfy current state or county stormwater
regulations that apply to new subdivision developments.
6. Currently, the existing drainage system that serves the subdivision has a series of
man-made drainages, culverts, and a perched outfall that discharges stormwater drainage on
the face of an undisputed landslide hazard area (a head scarp). The existing drainage system
discharges stormwater through the landslide hazard area located below a steep slope and head
scarp to an “Np” designated stream (perineal non-fish bearing) with an outfall to Squamish
Harbor. (Staff Report, page 2).
7. There is no credible dispute that the current stormwater drainage situation is less than
ideal, described as “terrible” during the public hearing. (Testimony of Ms. Wold). The record
includes site photos provided in a professional report submitted by the applicant, showing
some of the more troubling physical conditions that exist in parts of the Termination Point
Subdivision (See Site Photos provided in Appendix A to Ex. 8, the MSA Habitat Assessment
and Mitigation Plan, including the following that appears on .pdf page 59).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 8 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
(Ex. 8, Appendix A, Site Photos, on .pdf page 59).
8. A Geotechnical Report prepared by qualified professionals with the Stratum Group
in December of 2019 (Ex. 7), commissioned by the applicant team and submitted as part of
this application process, recommends that drainage and stormwater should not be directed
through a landslide hazard area located in a large portion of the subdivision. The applicant’s
Geotechnical Report (Ex. 7) and an Engineered Stormwater Plan (Ex. 6, dated Oct. 18, 2022)
recommended that the stormwater drainage be tight lined from the top of the slope to the
bottom of the slope to reduce the likelihood of landslides. (Staff Report, page 2; Exs. 6 and
7).
9. Relying on these reports from qualified professionals, the applicant submitted the
pending application for a Shoreline Substantial Development Permit to authorize
construction of portions of a new stormwater system to serve the Termination Point
Subdivision that would be located within the County’s designated shoreline jurisdiction. (Ex.
2, application materials submitted on or about October 26, 2022; Staff Report, page 5).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 9 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
10. Following requests for additional information and reviews of supplemental materials
submitted by the applicant team, Staff deemed the shoreline permit application technically
complete for purposes of vesting and moving forward with processing on or about May 10,
2023, the date the County issued a formal public Notice of Application for the pending
Shoreline Permit application. (Staff Report, page 5; Exs. 3, 4, 5).
11. Staff confirmed that public notice, mailing, posting, and publication requirements
were satisfied for this application. (Staff Report, page 5, Ex. 5).
12. The public notice also indicated that the Optional SEPA Determination of Non-
Significance (DNS) process was being utilized per WAC 197-11-355. (Staff Report, page
5). Copies of the application materials were also routed by email dated May 10, 2023 to the
following agencies: Jefferson County Public Works; WA State Department of SEPA and
Shoreline Sections; East Jefferson Fire and Rescue; Skokomish, Jamestown S’Klallam, and
Suquamish Tribes; the Point No Point Council. (See Exhibit 34, email from County Staff,
with string of recipients, transmitted copies of the Notice of Application and SEPA Checklist
submitted by the applicant; Staff Report, page 5). These agencies along with the Washington
State Department of Fish and Wildlife (WDFW) the Washington State Department of
Archaeology and Historic Preservation (DAHP) and parties who commented on the
preliminary DNS were also routed the Final DNS issued on April 17, 2024 (Exhibit 36). The
Staff Report provides a credible summary and response to most substantive comments
received on this proposal and the DNS as of the date of the staff report. (Staff Report, page
5, and relevant portions of analysis on pages 6-23).
SEPA.
13. Upon consideration of all application materials, consultant reports on relevant issues
prepared by qualified professionals, SEPA comments from agencies and individuals, and the
SEPA Checklist prepared for this proposal, Staff issued a SEPA Determination of Non-
Significance (DNS) for the project on or about April 17, 2024. (Staff Report, page 6; Ex. 36,
DNS). Although the SEPA DNS expressly informed readers that such threshold
determination was subject to appeal within 14-days of issuance, as provided in applicable
County codes, no one did so. By operation of WAC 197-11-545 (re: Effect of no comment),
if a consulted agency does not respond with written comments within the time periods for
commenting on environmental documents, the lead agency may assume that the consulted
agency has no information relating to the potential impact of the proposal as it relates to the
consulted agency's jurisdiction or special expertise; further, lack of comment by other
agencies or members of the public on environmental documents within the applicable time
period shall be construed as lack of objection to the county’s environmental analysis.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 10 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
14. Again, the record establishes that the DNS was not appealed – JCC 18.40.330
provides that a SEPA threshold determination like the DNS issued for this project may be
appealed within 14 days of issuance. It was not. Thus, the County’s SEPA determination for
this proposal stands unchallenged for purposes of considering this shoreline permit
application.
History of events involving the Termination Point Subdivision.
15. The unrebutted Staff Report highlights some of the history and events that have
occurred in the Termination Point Subdivision over the decades, leading up to the pending
application for a shoreline permit needed to develop a functional stormwater drainage system
to serve lots located within the subdivision. (Staff Report, pages 1-5).
16. A 2014 Resolution adopted by the Board of County Commissioners and an
unchallenged Consent Agenda Cover Memo prepared for the Board by the County’s former
Chief Civil Deputy Prosecuting Attorney in 2014, both included in the record as part of
Exhibit 24, summarizes some events that caused previous County officials to impose and then
modify special development conditions on parts of the Termination Point plat through
adoption of Resolution No. 21-14, in May of 2014.
17. The 2014 Resolution and more detailed cover memo correctly notes that the plat was
recorded in 1961 and then explains in general terms how the subdivision property was then
perceived as divided into two main sections: one that is located at the top of a high bluff
between Linda View Drive and Shine Road, also known as lots numbered 42 through 56 of
the plat, and the second section, which contains a bluff and land at the top of the bluff, near
what is called Ricky Beach Drive, which is the remainder of the plat. (Ex. 24, Res. No. 21-14
and Cover Memo, Analysis on page 1).
18. The part of the plat that was identified as a landslide prone area, i.e. a “geologically
hazardous” area, was then said to be unsuitable for construction of homes. (Ex. 24, Cover
Memo, page 1). In fact, because the lower half of the Termination Point Plat was mapped by
the Coastal Zone Atlas as landslide prone, as far back as 1983, the County Commission
prohibited any residential development anywhere within the plat through adoption of
resolution #69-83 in 1983. (Ex. 24).
19. Mr. Trask purchased the Termination Point plat at some point in the mid 1990s. In
1995, Mr. Trask sought to develop the plat through application SDP 95-0003, when he was
faced with the obstacle that the landslide-prone conditions of the plat made it so that it could
not be developed in a manner consistent with the original 1961 plat. (Ex. 24).
20. Geotech evaluations performed as part of Mr. Trask’s application process in the mid-
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 11 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
1990s indicated that portions of the plat that were above the bluff could be removed from the
1983 development moratoria – if specific drainage and setback recommendations provided
in a December 1996 geotechnical report for the property were implemented. The 1996
geotech report was peer reviewed in 1997, and County Staff affirmed the results to be
accurate. (Ex. 24).
21. So, in 1997, the County Commission adopted Resolution No. 90-97, removing some
lots in the plat from the original 1983 moratorium, subject to compliance with specific
conditions recommended in peer-reviewed geotech reports before any homes could be
constructed. The lots removed from the moratorium were intended to be lots that did not
extend south of or beyond the top of the fault scarp or slide area in the plat. (Ex. 25, Res. No.
90-97; and Ex. 24, Res. No. 21-14 and Consent Agenda Cover Memo). The conditions for
development of lots removed from the 1983 moratorium through passage of the 1997
Resolution were generally: a) an amended plat; b) a notice on the amended plat that the area
is subject to geologic instability; c) a restrictive covenant for all owners indicating the
presence of that geologic instability; d) an approved drainage and erosion control plan to be
installed to the satisfaction of the county engineer; and e) a letter from the county engineer
confirming that partial repeal of the 1983 moratorium should take effect, based on the
applicant’s satisfaction of all preconditions. (Exs. 24, 25).
22. For whatever reason, there is no dispute that an approved drainage and erosion plan
was never constructed to serve the Termination Point plat, as would be required to lift the
building moratorium from certain lots as described in the 1997 Resolution.
23. Then, in the Summer of 2013, Jefferson County pursued legal action against the
landowner for unauthorized work in the form of tree cutting and land disturbing activity that
occurred within the landslide hazard area of the Termination Point Subdivision, all without
authorization. (Exhibit 24). The legal action appears to have been resolved, in part through
passage of the 2014 Resolution, which again imposed special development conditions on
portions of the Termination Point Subdivision, lifting or modifying some restrictions that
applied to lots based on updated geotech reports. (Ex. 24; Staff Report, page 1; Testimony of
Mr. Ballard).
24. During the public hearing for this Shoreline Permit, Mr. Ballard credibly testified that
various development moratoria and special development conditions have been imposed on
the Termination Point Subdivision that are partly tied to alleged unauthorized acts and
possible code violations by the property owner or their agents, directing attention to County
Resolutions adopted in 1997 and 2014, included in the record as Exhibits 25 and 24
respectively.
25. There is no credible dispute that the current owner of most properties included in the
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
plat – Termination Point Properties, LLC (Russel Trask) – has a long history of undertaking
or allowing unpermitted and unauthorized work or activities in the subdivision that may have
contributed to or exacerbated some of the problems that the new stormwater drainage system
is intended to address. (See credible and unrebutted testimony from hearing witnesses and
written comments included in the record, including without limitation, Testimony and written
comments from Mr. and Ms. Brenna, Ms. Wold, and Ms. Showalter, Exs. 15, 16, 40, 41, 43,
44, 45; Ex. 24, Resolution No. 21-14, addressing special conditions for development on
certain lots in the Termination Point Subdivision, adopted on May 12, 2014, with supporting
documents, including Consent Agenda Cover Memo dated May 7, 2014 to Board of County
Commissioners from Chief Civil Deputy Prosecutor, David Alvarez, on page 2, summarizing
relevant acts and events involving Mr. Trask).
26. A collection of aerial photos from the mid-90s to 2023, show how significant parts of
the Termination Point Subdivision have been cleared of vegetation over time. (Exhibits 28
& 29). Other than confirming that homes have already been constructed on Lots 1-4 in the
plat, about which the County did not raise any objections, the record includes no evidence of
permits or other County approvals issued for the scope of vegetation clearing or grading work
that appears to have occurred within the subdivision, as shown in Exs. 28 and 29. (Staff
Report, pages 1 and 3).
27. Mr. Magnuson generally suggested that recent complaints made during the public
hearing or written comments, about possible clearing and cutting work on the site, may have
been misinterpreted situations involving firewood cutting. (Testimony of Mr. Magnuson).
Even if some firewood cutting occurred on the property, the scale of alterations and clearing
that has occurred on the site, as depicted in Exs. 28 and 29, is well beyond what one could
reasonable excuse as just a bit of cutting for firewood.
28. Given this history, the Examiner finds and concludes that robust Conditions of
Approval must be included as part of this Shoreline Permit to ensure that the proposed
stormwater system and all mitigation measures are successfully implemented, maintained,
and monitored, by the current property owner or any successors in interest. Further, language
in County Shoreline codes appropriately authorize or require bonds or other financial
assurance measures to assure that the project and all mitigation measures demonstrate
successful performance for the long term. (See JCC 18.25.270; and JCC 18.25.610(2)(h)).
Current status of lots and conditions within the plat.
29. The applicant engaged the services of qualified professionals from the Stratum Group
to prepare an updated Geotechnical Report to assess geologic hazards for the entire
Termination Point Subdivision. The “geotech report” by the Stratum Group is dated
December 24, 2019, and is included in the record as Exhibit 7. A summary of conditions
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
provided on pages 1 to 3 of the Geotechnical Report essentially divides the Termination Point
plat into three different Zones: Zone A (deemed not to be a landslide hazard); Zone B, an
area above the slope that could be developed with reasonable risks, subject to compliance
with certain requirements; and Zone C, which was deemed to be inappropriate for
development because it is located within the landslide hazard and contains poor soils. (Staff
Report, Summary of applicant’s most recent Geotech Report, Ex. 7, on page 1).
30. Zone A is generally comprised Lots 1-4, Lot 35, and Lots 42-45. Lots 1 to 4 are
already developed and contain single family homes. The moratorium was lifted on Lots 42-
56 (area north of Linda View) in 2014, under terms provided in Resolution 21-14, which
mandates that future land use permit applications for development on lots removed from the
moratorium must comply with county development regulations in effect at the time such
application is deemed to be substantially complete. (See Res. No. 21-14, Sec. 2, included as
part of Ex. 24; Staff Report, pages 1-2).
31. Zone B is generally comprised of Lots 22 to 34, which are located above the slope.
The Staff Report mentions that the applicant may soon seek to consolidate the flat portions
of these lots into 4 parcels comprised of: Parcel A Lots 22-24; Parcel B Lots 25 to 27; Parcel
C lots 28 to 30; and Parcel D lots 33 to 35, as noted in the applicant’s SEPA Checklist (Exhibit
4). (Staff Report, page 1).
32. Zone C is generally comprised of the remaining lots within the plat that the Geotech
Report deems not appropriate for residential development from a geologic perspective. (Staff
Report, page 1, summarizing Geotech Report, Ex. 7).
33. Linda View Drive, Harbor View Place, and Ricky Beach Drive are already in
existence and provide access to 19 lots, where development may already be allowed to occur,
subject to compliance with current County codes. (Staff Report, page 2). The record includes
the following illustration, showing lot numbers for most properties within the Termination
Point Subdivision, with the location of the steep slope, critical areas, and general
topographical contours that present challenges to any development in the plat:
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
(Screenshot of illustration provided in Ex. 27, showing contours and critical areas in the
Termination Point plat).
34. As mentioned before, the existing drainage system has a series of man-made
drainages, culverts, and a perched outfall that discharges stormwater drainage on the face of
the landslide hazard area (head scarp). The existing drainage system discharges stormwater
through the landslide hazard area located below the slope and head scarp to an “Np”
designated stream (perineal non-fish bearing) with an outfall to Squamish Harbor. The
Geotechnical Report (Ex. 7) recommends that drainage and stormwater should not be directed
through a landslide hazard area. The applicant’s Geotechnical Report and Engineered
Stormwater Plan recommend that the stormwater drainage be tight lined from the top of the
slope to the bottom of the slope to reduce the likelihood of landslides. (Exs. 7 and 6,
respectively; Staff Report, page 2).
Stormwater system proposal addressed in this Shoreline permit.
35. In this Shoreline Permit application process, the applicant is proposing to install a
stormwater system to avoid the infiltration of stormwater into the ground of a slope that is
unstable, has poor draining soil, and is within an area that has been subject to recent deep
rotational slides (between 1996 to 1999). The proposed stormwater system (Exhibit 6) would
collect stormwater from the north side of Linda View Drive through a road ditch along Linda
View Drive. It also entails the installation of 8-inch collector lines running from along the
eastern edge of Lots 42 to 45 (from north to south), and another 8-inch collector line from
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
the southern edges of Lots 54 to Lot 52 (from west to east). Another 8-inch PVC collector
line would be installed in the mid-slope area to collect all the natural drainage and the
proposed drainage from the development on Lots 22 to 32 (from west to east). The 8-inch
collector lines have been designed to accommodate up to 5,000 sq ft of impervious surface
from roof and driveways. The 8-inch collection pipes for lots 22 to 31 would be located a
minimum of 60-feet from the top of the slope (head scarp), as recommended in the
Geotechnical Report (Ex. 7). (Staff Report, page 2).
35A. The location of key elements included as part of the applicant’s proposed stormwater
drainage plan, and key areas discussed in this Decision, are shown on the attached plan sheet
number 2 of 9, included as part of Ex. 6, and on another, second illustration, with handwritten
notes in color by DCD Staff on a copy of the Termination Point plat map, included in the
record as Ex. 46:
(Screen shot from Sheet 2 of 9, proposed Drainage Plan drawings included as part of Ex. 6).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
(Screen shot from Ex. 46, with DCD Staff’s handwritten notes on plat map showing elements
of drainage system and general area where revegetation will be required under Condition
No. 20).
36. The engineered drainage plan also requires the placement of rocks at all outfalls to
reduce energy. The size of the rocks would meet the Table V-1 of the 2019 Stormwater
Management Manual of Western Washington (Exhibit 23). The drainage would be directed
into an approximate 167-foot-long by 14-foot-wide (with a 2-foot separator) by 1-foot deep
biofiltration swale to remove any contaminants primarily from the road. The biofiltration
swale would contain plants, compost, and check dams to help slow down and treat water. An
8-inch PVC pipe would collect drainage from Lots 33 to 35 (from north to south). All of this
drainage would be directed to the Catch Basin 3 located in the middle of Lot 32. From Catch
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
Basin 3 the stormwater would be directed to the east through an 18-inch PVC pipe to Catch
Basin 2. From Catch Basin 2 the stormwater would be routed down a steep slope to the south
to Catch Basin 1. From Catch Basin 1 the stormwater would directed to a diffusion “T” and
at a large rocks energy dissipater. This outfall would be located at the base of the slope and
20-feet landward of the Ordinary High Water Mark (OHWM). (Staff Report, page 2).
37. A 130-foot portion of this stormwater pipe with a dispersion “T” and rock outfall to
prevent erosion would be located within 200-feet of Squamish Harbor, which is regulated by
the Jefferson County Shoreline Master Plan (SMP). The SMP regulations are found in
Chapter 18.25 of the Jefferson County Code (JCC). This proposal is located within an area
that is designated “Natural” in the County’s SMP. The stormwater system is considered a
“utility” that serves the Termination Point Subdivision. This proposal is not exempt from a
Shoreline Substantial Development Permit per WAC 173-27-040, and therefore a Shoreline
Substantial Development permit is also required. As noted elsewhere, a Shoreline Substantial
Development permit is a Type III permit and is the main focus of this review. The stormwater
outfall 20-feet landward of the OHWM may also require a Hydraulic Project Approval (HPA)
from the WA State Department of Fish and Wildlife. (Staff Report, page 2).
38. The unrebutted Staff Report includes the following chart on page 3, highlighting the
reports and reviews conducted by qualified professionals for aspects of this proposal to
address slope stability and develop an engineered stormwater drainage system to serve the
Termination Point Subdivision (TPS):
Site description as of date of Staff Report.
39. As noted in the Staff Report and other parts of this Decision, development within the
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
Termination Point Subdivision is now comprised of: existing houses on Lots 1 to 4; the
construction of Linda View, Harbor View Lane, and Ricky Beach Road; installation of
utilities primarily in the “upper bench” area; and the existing primitive drainage system for
the development. No other development has occurred with the subdivision, partly due to
landslide activity in the area and the effect of development moratoriums that applied to most
of the undeveloped parcels. (Staff Report, page 3).
40. The site generally slopes from northwest to southeast. Lots 1 to 4, Lots 42-56 (area
north of Linda View) and the northern half of Lots 22 to 31 located along Linda View Drive
are located in an area that has a slope ranging between 0 to 16 percent slope per Page 23 of
Stratum Group 2019 Geotechnical Report. (See discussion and descriptions in Exhibit 7; Staff
Report, page 3).
41. The southern portion of Lots 22 to 31 contain a vertical slope (head scarp) that ranges
from 70 feet at the eastern edge (near Ricky Beach Drive) to 110 feet in height at the western
edge of the property (per page 25 of Stratum Group 2019 Geotechnical Report (Exhibit 7).
The western half of Lots 32 to 35 are located along Linda View Drive are generally flat, while
the eastern half contains a depression. The lower bench area below the head scarp is accessed
from Ricky Beach Drive a paved private road. (Staff Report, page 3; Ex. 7).
42. As explained on page 3 of the Stratum Geotechnical Report (Exhibit 7), the lower
bench area (Zone C) contains a landslide complex in an area of ground deformation
(fractures, shifting, down-dropping, and shallow slide). Zone C is also in the runout zone for
landslides sourced from the steep head scarp bluff along the northern edge of Zone C. The
landslide debris and poor soils contained in Zone C are unstable areas and are not appropriate
for residential development, as noted on page 3 of the Stratum Geotechnical Report (Exhibit
7).
43. Again, for whatever reason, portions of undeveloped lots within the plat have been
cleared, as depicted in the aerial photos included as part of Exhibits 28 and 29, increasing
slope instability and landslide risks in the plat. (Staff Report, page 3; Ex. 7).
44. There is no credible dispute that existing site conditions make it imperative that a
properly designed and fully mitigated stormwater drainage system should be constructed to
serve the Termination Point Subdivision before any additional residential development or
redevelopment is allowed to occur in the plat.
Stormwater management regulations apply to future development and redevelopment.
45. All new development and redevelopment on properties throughout Jefferson County,
including those in the Termination Point Subdivision, must conform to the most current
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 19 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
version of stormwater management regulations and other development standards found in
Ch. 18.30 of the County’s code. (See JCC 18.30.070, re: Stormwater management standards,
which reads: “All new development and redevelopment must conform to the standards and
minimum requirements set by the most current version of the Washington Department of
Ecology Stormwater Management Manual for Western Washington (SMM) and obtain a
stormwater management permit if required by subsection (5) of this section. The
administrator may require additional measures as indicated by the environmental review or
other site plan review.”; and JCC 18.30.020 re: General development standards, which
reads: “The development standards of this chapter [18.30] shall apply within each land use
district and shall be minimum standards that apply uniformly to each class or kind of
structure or land, except as hereinafter provided: (1) No building, structure or part thereof
shall hereafter be erected, constructed, reconstructed, moved or structurally altered unless
in conformity with all of the regulations specified in this chapter for the land use district in
which it is located [...]”).
46. Pollution control regulations are not subject to vesting. Among others, stormwater
regulations and are not subject to vesting, as they are not local land use control ordinances.
Snohomish County, et al., v. Pollution Control Hearings Board, 187 Wn.2d 346, 386 P.2d
1064 (2016). As stated in Snohomish County, et al., an applicant “does not have a legitimate
expectation that pollution control measures will be frozen in time to outdated or ineffective
measures.” Id. at 373.
47. While most written comments questioning or opposing the pending Shoreline Permit
application focused on concerns or doubts that the property owner will follow-through and
satisfy any permit requirements, the Examiner takes Mr. Magnuson’s testimony in good faith,
and expects that he is committed to assuring the approved Shoreline project addressed in this
permit will be constructed, maintained, and mitigated in compliance with all applicable
conditions and requirements. Conditions of approval have been added by the Examiner to
comply with County codes, and to ensure that all mitigation, maintenance, and conditions of
approval are fully implemented over the long term, regardless of the party or parties who
might own some or all of the lots in the subdivision.
48. None of the public comments questioning or challenging aspects of the project were
supported by professional reports or studies of comparable weight to those submitted by the
applicant or relied on by County officials that establish how the proposed stormwater
drainage plan will significantly improve stormwater management conditions in the plat over
those that exist today and satisfy applicable shoreline permit criteria.
49. The Staff Report credibly explains that the placement of the drainage system within
the Np stream on the site and in the 75-foot buffer is adequately addressed in the Mitigation
Plan of the Habitat Assessment included in the record as Exhibit 8, thus satisfying critical
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 20 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
areas buffer reduction requirements found in JCC 18.22.640. (Staff Report, page 24; Ex. 8).
This includes a determination that placement of the drainage system within the Np stream
will not adversely affect the habitat functions and values of the adjacent FWHCA or other
critical area, subject to compliance with all Conditions of Approval. The existing drainage
system pre-dates the adoption of the Critical Area Code (Title 18.22) and the upgraded
drainage system would be located within the same area as the existing drainage system.
Maintenance of a drainage facility and utilities are exempt from the Critical Area Code as
explained in JCC 18.22.230(4)(e) and (f), provided that the proposal additional protection
requirements of JCC 18.22.230(5) are met. The DCD Code Administrator determined that
the proposed drainage system as designed and conditioned meets these requirements. (Staff
Report, page 24). Based on a preponderance of credible evidence in the record, the Examiner
concurs.
Comprehensive Plan.
50. The unrebutted Staff Report credibly summarizes and explains how the applicant’s
proposal is consistent with and implements goals and policies found in the County’s
Comprehensive Plan. (Staff Report, analysis and findings on page 4). The Jefferson County
Comprehensive Plan designates the subject parcels Rural Residential (RR) 1:5. The proposed
drainage improvement is an appurtenance to the approved plat. Compliance with the
County’s Shoreline Master Program satisfies and implements relevant policies and goals in
the County’s Comprehensive Plan, largely because the goals and policies of the Shoreline
section of the County’s Comprehensive Plan are incorporated by reference from the Shoreline
Master Program found in JCC Ch. 18.25.
Shoreline Master Program policies and regulations.
51. The Examiner finds and concludes that the Staff Report analysis and findings
explaining how the pending proposal has been designed to, or can be conditioned to, comply
with applicable provisions of the County’s Shoreline Master Program, was not rebutted by a
preponderance of credible testimony or evidence in this record. (See Staff Report, pages 6-
11). As noted elsewhere in this Decision, and as analyzed in the Staff Report, the Jefferson
County Shoreline Master Program is codified in Chapter 18.25 of the Jefferson County Code.
With limited exceptions – none of which apply to this application – provisions of the
County’s Critical Areas regulations, found in Chapter 18.22 of the County’s Code, are
expressly adopted by reference and included as part of the County’s Shoreline Master
Program. (See JCC 18.25.060).
52. Staff credibly determined that the proposal should be reviewed and considered as a
Utility because it collects and distributes stormwater runoff from the Termination Point
Subdivision to Squamish Harbor, similar to how a sewage system, water system, electrical
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
and communication lines are “utilities” that commonly serve residential subdivisions. (Staff
Report, pages 6-7; JCC Table 18.25.220, listing “Utilities” as among the types of uses that
can be permitted in the Natural Shoreline Environment [where this project is located],
subject to meeting special requirements for Utilities that are found in JCC 18.25.530).
53. While utility development in the County’s “Natural” shoreline environment is
normally prohibited,4 Utilities that are “accessory to and serving permitted uses are allowed”
in such shoreline areas. (See JCC 18.25.530(2)(c)(iii), discussed on page 9 of the Staff
Report). Clearly, the existing and proposed stormwater systems are accessory to and serve
the Termination Point plat, i.e. a permitted use.
54. The Staff Report credibly analyzes and explains how the proposed new stormwater
system is designed, or can be conditioned to, satisfy special requirements for Utilities
proposed in Shoreline areas, including without limitation those found in SJCC 18.25.530.
(Staff Report, pages 7-10).
55. The Staff Report credibly analyzes and explains how the applicant’s proposal has
been designed to, or can be conditioned to, satisfy Critical Areas regulations found in Ch.
18.22 JCC, including without limitation those addressing Special Flood Hazards,
Geologically Hazardous Areas, Fish and Wildlife Habitat Conservation Areas, and requests
for Buffer reductions and averaging. (Staff Report, pages 11-24).
56. Conditions of Approval for this project include special planting and revegetation
requirements for portions of the plat that are consistent with County shoreline codes
mandating restoration or enhancement of vegetation, both inside the corridor where the new
pipes will be located, as well as parts of the plat where landslide hazards and runoff that
would impair the functionality and performance of the proposed new stormwater drainage
system can be reduced through such revegetation measures. (See JCC 18.25.530(3)(f), and
WAC 173-27-150(2): “Local government may attach conditions to the approval of [shoreline
substantial development] permits as necessary to assure consistency of the project with the
[Shoreline Management] Act and the [County’s] local [Shoreline] master program.”).
57. The planting and revegetation Conditions that are imposed as part of this shoreline
permit are also fully consistent with and fully authorized as measures to increase protection
of geologically hazardous areas. (See JCC 18.25.530(3)(b), re: Geologically Hazardous
Protection Standards; Staff Report, analysis and discussion on page 13-15).
58. Even if the applicant or some future owner of the plat or lots within the plat might
seek to narrow the scope of any replanting or mitigation measures imposed as part of this
4 See JCC 18.25.530(2)(c)(i), discussed on page 9 of the Staff Report.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
Shoreline Permit, the Shoreline Management Act, the County’s Shoreline Master Program,
and controlling legal authority explained in Washington caselaw, all mandate that where there
might be conflict between various standards, the more restrictive protection requirement shall
apply in Shoreline areas.
59. As explained in JCC 18.25.080, captioned “Liberal construction,” the County’s
Shoreline Master Program “is exempt from the rule of strict construction; therefore this
program shall be liberally construed to give full effect to its goals, policies and regulations.
Liberal construction means that the interpretation of this document shall not only be based
on the actual words and phrases used in it, but also by taking its deemed or stated purpose
into account. Liberal construction means an interpretation that tends to effectuate the spirit
and purpose of the writing. For purposes of this program, liberal construction means that the
administrator shall interpret the regulatory language of this program in relation to the broad
policy statement of RCW 90.58.020, and make determinations which are in keeping with
those policies as enacted by the Washington State Legislature.” (JCC 18.25.080).
60. Shoreline permits may include conditions to protect critical areas and shoreline
functions, including mitigation, enhancement, restoration, maintenance, and monitoring
measures supported by a bond or other financial assurance to ensure the mitigation and
monitoring are carried out successfully. (See JCC 18.25.270, captioned “Critical areas,
shoreline buffers, and ecological protection.”).
61. Additionally, JCC 18.25.610(2)(h) explains that the County’s Hearing Examiner is
vested with the authority and responsibility to, at his or her sole discretion, require any project
proponent granted a shoreline permit to post a bond or other acceptable security with the
county, conditioned to assure that the project proponent and/or his or her successors adhere
to the approved plans and all conditions attached to the shoreline permit. Such bonds or
securities shall have a face value of at least 150 percent of the estimated development cost
including attached conditions.
62. Based on a preponderance of evidence in this record, establishing substantial need for
adequate bonds or assurance measures to ensure that all permit conditions and code
requirements are satisfied over the long term, Conditions of Approval have been added by
the Examiner to be consistent with responsibilities imposed by JCC 18.25.610(2)(h),
discussed in the previous finding above.
63. There is no credible dispute that the existing Termination Point Subdivision requires
a functional stormwater drainage system that satisfies current County and State stormwater
regulations. The current proposal would improve the stormwater conditions and factors of
safety for the subdivision by collecting, filtering, and redirecting stormwater into an
engineered drainage system with 8 and 18 inch PVC pipe tightlines, bio-swale(s), and an
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
outfall to carry the stormwater drainage from the top of the toe of the landslide hazard area
to the outfall along the beach area below. (Staff Report, page 9). The proposed upgrade will
help prevent landslides by no longer simply relying on open ditches and outfalls to discharge
stormwater through the very poor soils in the sensitive landslide complex area within the plat.
(Exs. 6 and 7, Engineered Stormwater Plan and Stratum Group Geotech Report from 2019).
64. Multiple parties who submitted written comments and public testimony, and the
applicant, should be fully informed that under State Shoreline regulations, violations of
County or State shoreline regulations, including any terms of conditions of this Shoreline
Substantial Development Permit, may be addressed using a variety of enforcement tools,
including civil and criminal penalties, among others. WAC 173-27-240, captioned
“Authority and purpose”, reads as follows: “This part is adopted under
RCW 90.58.200 and 90.58.210 to implement the enforcement responsibilities of the
department and local government under the Shoreline Management Act. The act calls for a
cooperative program between local government and the state. It provides for a variety of
means of enforcement, including civil and criminal penalties, orders to cease and desist,
orders to take corrective action, and permit rescission. The following [enforcement tools]
should be used in addition to other mechanisms already in place at the local level and does
not preclude other means of enforcement.” [...]
65. Going forward, the applicant, Staff, concerned neighbors, and future owners of lots
in the subdivision, should be mindful that as provided in WAC 173-27-100, re: Revisions to
permits, “a permit revision is required whenever the applicant proposes substantive changes
to the design, terms or conditions of a project from that which is approved in the permit.
Changes are substantive if they materially alter the project in a manner that relates to its
conformance to the terms and conditions of the permit, the master program and/or the policies
and provisions of chapter 90.58 RCW. Changes which are not substantive in effect do not
require approval of a revision.” Substantially similar language is included in the County’s
Shoreline Master Program, at JCC 18.25.760. Conditions of Approval have been added to
ensure that the Permittee, Staff, and other parties are aware that substantive changes or
modifications to the approved stormwater drainage system approved by this Permit might
require a formal Permit Revision process, explained in JCC 18.25.760.
66. WAC 173-27-190, re: Permits for substantial development, conditional use, or
variance, provides that: (1) Each permit for a substantial development, conditional use or
variance, issued by local government shall contain a provision that construction pursuant to
the permit shall not begin and is not authorized until twenty-one days from the date of filing
as defined in RCW 90.58.140(6) and WAC 173-27-130, or until all review proceedings
initiated within twenty-one days from the date of such filing have been terminated; except as
provided in RCW 90.58.140 (5)(a) and (b). JCC 18.25.760 codifies similar language as part
of the County’s Shoreline Master Program. The Examiner has added a Condition of Approval
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
to satisfy this requirement.
67. The Department of Ecology’s Shoreline Master Program handbook includes a full
chapter addressing Shoreline Stabilization issues, like bulkheads, hard armoring, other
structural measures undertaken to stabilize steep slopes and the like where conditions might
pose a danger to homes built above an unstable shoreline bluff or hillside and the like. (See
DoE SMP Handbook, Chapter 15, re: Shoreline Stabilization, publicly accessible on
Ecology’s website). WAC 173-26-231(3)(a)(iii), captioned “Shoreline modifications”, reads
in part as follows: “(iii) Standards. In order to avoid the individual and cumulative net loss
of ecological functions attributable to shoreline stabilization, master programs shall
implement the above principles and apply the following standards: (A) New development
should be located and designed to avoid the need for future shoreline stabilization to the
extent feasible. Subdivision of land must be regulated to assure that the lots created will not
require shoreline stabilization in order for reasonable development to occur using
geotechnical analysis of the site and shoreline characteristics. New development on steep
slopes or bluffs shall be set back sufficiently to ensure that shoreline stabilization is unlikely
to be necessary during the life of the structure, as demonstrated by a geotechnical analysis.
New development that would require shoreline stabilization which causes significant impacts
to adjacent or down-current properties and shoreline areas should not be allowed. [...].
68. The Jefferson County Shoreline Master Program implements State-required policies
intended to discourage future need or use of shoreline armoring, bulkheading, and the like,
in parts of the County’s code, including without limitation the following provisions:
JCC 18.25.410 – Structural shoreline armoring and shoreline stabilization. [...]
(4) Regulations – Subdivisions and Existing Lots without Structures.
(a) Land subdivisions shall be designed to assure that future development or use of the established
lots will not require structural shoreline armoring.
(b) Use of a bulkhead, revetment or similar shoreline armoring to protect a platted lot where no
primary use or structure presently exists shall be prohibited. Where such shoreline armoring
already exists, property owners are strongly encouraged to remove it.
(c) Structural shoreline armoring for the sole purpose of leveling or extending property or creating
or preserving residential lawns, yards, or landscaping shall be prohibited. Where such shoreline
armoring already exists, property owners are strongly encouraged to remove it. [...]. (emphasis
added).
and
JCC 18.25.500(2) Uses and Activities Prohibited Outright. [...]
(b) Residential development that can be reasonably expected to require structural shore armoring
during the useful life of the structure or within 100 years, whichever is greater, is prohibited.
(emphasis added).
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
69. For purposes of this Shoreline Permit, the additional setbacks on certain lots for new
homes and/or septic systems, among other things, as recommended in the applicant’s latest
Geotech Report (Ex. 7), appear to satisfy State and County mandates that generally prohibit
residential development that can be reasonably expected to require structural shore armoring
during the useful life of the structure or within 100 years, whichever is greater. (See Staff
Report, discussion on page 13, referencing Ex. 7, recommended 75-foot setback for new
residences and septic systems, and 60-foot setback from top of slope for collection pipes
placed on Lots 22-35, which was based on previous geotech analysis for the subdivision; Ex.
7, Stratum Group’s 2019 Geotech Report, on pages 1-3, discussion of proposed setbacks on
certain lots based on landslide risks presented over 100-year period).
70. Future building and land use permit application reviews must be based upon facts
presented in a specific proposal, which may require additional geotechnical reviews and
reports from an applicant to demonstrate how their project can be designed or built so that it
will not be reasonably expected to require structural shore armoring during the
useful life of the structure or within 100 years, whichever is greater.
Bonds or Financial Assurance Requirements.
71. As explained in JCC 18.25.610(2)(h), the County’s Hearing Examiner is vested with
the authority and responsibility to, at his or her sole discretion, require any project proponent
granted a shoreline permit to post a bond or other acceptable security with the county,
conditioned to assure that the project proponent and/or his or her successors adhere to the
approved plans and all conditions attached to the shoreline permit. Such bonds or securities
must have a face value of at least 150 percent of the estimated development cost including
attached conditions. (id.).
72. In this Decision, and Conditions of Approval, the Examiner exercises such authority,
and imposes a bond or financial assurance requirement, to ensure consistency with the goals
and requirements in the Shoreline Management Act and the County’s Shoreline Master
Program. Such condition is further supported by requirements for financial assurance in
situations where compensatory mitigation measures are required, like the vegetation planting
addressed in the MSA Habitat Assessment and Mitigation Plan (See Ex. 8; and Conditions
16, 17, 18) and the revegetation requirement addressed in Condition No. 20. (See JCC
18.25.270(2)(f)).
73. Because compensatory mitigation measures are required as part of this Shoreline
Permit approval – including without limitation the vegetation planting addressed in the MSA
Habitat Assessment and Mitigation Plan (See Ex. 8; and Conditions 16, 17, 18) and the
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
revegetation requirement addressed in Condition No. 20 – all of the following shall apply5:
(i) The quality and quantity of the replaced, enhanced, or substituted resources shall be the same
or better than the affected resources; and
(ii) The mitigation site and associated vegetative planting shall be nurtured and maintained such
that healthy native plant communities can grow and mature over time; and
(iii) The mitigation shall be informed by pertinent scientific and technical studies, including but
not limited to the Shoreline Inventory and Characterization Report (Final – Revised November
2008), the Shoreline Restoration Plan (Final October 2008) and other background studies prepared
in support of this program; and
(iv) The mitigation shall replace the functions as quickly as possible following the impacts to
ensure no net loss; and
(v) The mitigation activity shall be monitored and maintained to ensure that it achieves its
intended functions and values. The monitoring timeframes shall be consistent with
JCC 18.22.740; and
(vi) The county shall require the applicant/proponent to post a bond or provide
other financial surety equal to the estimated cost of the mitigation in order to ensure the mitigation
is carried out successfully. The bond/surety shall be refunded to the applicant/proponent upon
completion of the mitigation activity and any required monitoring. (Emphasis added).
74. Based on credible evidence in the record, including without limitation the unrebutted
Staff Report and testimony by Mr. Ballard, the Examiner finds and concludes that the pending
application is supported by reports and recommendations from qualified professionals that
serve as a basis to include Conditions of Approval that will satisfy code requirements (i)-(v)
listed above. The Examiner has added Conditions of Approval addressing bonds or financial
assurance requirements needed to satisfy language found in JCC 18.25.270(2)(f)(vi),
provided above.
The application, as conditioned, satisfies applicable Shoreline Permit approval criteria.
75. There is a preponderance of credible and unrebutted evidence in the record and
application materials to demonstrate that, subject to compliance with appropriate Conditions
of Approval, no net loss of shoreline ecological functions will occur as a result of this project,
satisfying applicable Shoreline regulations, including without limitation JCC 18.25.270(2).
(Staff Report; Conditions of Approval; Testimony of Mr. Ballard; Ex. 8).
76. A preponderance of evidence in the record fully supports the analysis, findings, and
recommended conditions contained in the Staff Report. Additional conditions have been
added by the Examiner, all of which are supported by evidence in the record.
5 See JCC 18.25.270(2)(f), re: Critical areas, shoreline buffers, ecological protection, no net loss and
mitigation requirements.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 27 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
77. A preponderance of credible evidence in the record, including without limitation the
analysis provided in the Staff Report, the DNS issued for the project without any appeal, and
all Findings provided in this Decision, establish that the applicant has met its burden to prove
that the pending application satisfies all criteria for approval of a Substantial Development
Permit, including without limitation those found in applicable county codes, the Shoreline
Management Act (“SMA”, see RCW 90.58.140), and state Shoreline regulations (WAC 173-
27-150). Based on the record, including all findings included in this Decision, the Examiner
finds and concludes that the applicant’s proposal and Shoreline Substantial Development
Permit application is consistent with: all applicable policies and procedures of the SMA;
applicable provisions of state and County Shoreline regulations; and applicable provisions of
the County’s Shoreline Master Program, including Critical Areas protections found in Ch.
18.22 JCC that are adopted by reference as part of the County’s SMP. Accordingly, the
requested Shoreline Substantial Development Permit merits approval, subject to conditions
included as part of this Decision that are necessary to assure consistency of the applicant’s
project with the SMA and the County’s Shoreline Master Program.
78. All findings, statements of fact, and analysis provided in the unrebutted Staff Report
are incorporated herein as findings of fact by the undersigned hearing examiner, except as
modified herein.
79. Consistent with authority granted in County and State regulations, the Examiner has
conditioned approval of the applicant’s project to make the proposal consistent with the
County’s shoreline master program, to mitigate or avoid potential adverse impacts, and to
ensure that all mitigation measures are properly implemented, maintained, and monitored
over the long-term.
V. CONCLUSIONS OF LAW.
1. The record includes a preponderance of evidence establishing that the pending
shoreline substantial development permit application satisfies applicable approval criteria
and merits approval, subject to conditions.
2. As conditioned, professional design recommendations and environmental reports
show that the requested shoreline permit will not result in any net loss of shoreline ecological
functions. The requested permit is supported by a preponderance of evidence in the record
and meets all applicable approval criteria. Following notice of the application and DNS
issued for the project, there were no appeals of the SEPA threshold determination issued for
this proposal. Therefore, the requested permits should be approved, subject to appropriate
conditions.
3. Conditions of approval included as part of this Decision approving the requested
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 28 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
Shoreline Permit are supported by a preponderance of evidence in the record, authorized by
applicable provisions of County and State Shoreline Management policies and regulations,
and are necessary to assure the project is consistent with the Shoreline Management Act and
the County’s Shoreline Master Program. (See WAC 173-27-150(2); and relevant discussion
in Preserve Our Islands v. Shorelines Hearings Bd., 133 Wn. App. 503, at par. 54, 137 P.3d
31 (2006)(review denied by Pres. Our Islands v. Shoreline Hearings Bd., 162 Wn.2d 1008,
175 P.3d 1092, 2008 Wash. LEXIS 42 (Jan. 8, 2008), confirming conditions, limitations and
mitigation measures that apply to aspects of a shoreline project that are located outside the
shoreline environment where such measures serve to protect or preserve the shoreline area in
some manner that implements policies and goals of the Shoreline Management Act).
4. Any finding or other statement contained in a previous section of this Decision that is
deemed to be a Conclusion of Law is hereby adopted as such and incorporated by reference.
VI. DECISION.
Based upon the preceding Findings of Fact and Conclusions of Law, a preponderance
of credible evidence presented through the course of the open record hearing process, all
materials contained in the contents of the record, and the Examiner’s site visit to the area, the
undersigned Examiner APPROVES the Type III Shoreline Substantial Development Permit,
assigned File No. SDP 22-00019, for a new stormwater drainage system project to serve the
Termination Point Subdivision, subject to Conditions of Approval, which are attached hereto
and incorporated as part of this Decision.
ISSUED this 22nd Day of October, 2024
_____________________________
Gary N. McLean
Hearing Examiner
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 29 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
CONDITIONS OF APPROVAL
FOR THE
TERMINATION POINT SUBDIVISION
SHORELINE SUBSTANTIAL DEVELOPMENT PERMIT
FILE NO. SDP 22-00019
[NOTE: For convenience of the parties, these conditions are generally organized and numbered
as they were presented in the Staff Report. The terms Applicant, Proponent, Permittee, and
Owner, shall have the same meaning, unless some other meaning is clearly intended by
language used in a particular Condition. The use of captions, numbering, or sections has no
substantive effect regarding the full scope or applicability of any condition to various aspects
of the project]
Conditions based on those proposed in Staff Report, as modified by the Examiner:
1. This Shoreline Permit authorizes development and construction of the applicant’s
proposed Stormwater Drainage System to serve the Termination Point Subdivision, as
described in the Staff Report for application file no. SDP 22-00019, as modified to satisfy
these Conditions. Construction of the stormwater management facilities addressed in this
Shoreline Permit shall be substantially as designed and specified in:
a) Stormwater Permit Application signed by Russel Trask 11-5-2020;
b) Drainage & Erosion Control Report that includes the engineering calculations
prepared by Kent Robinson of Northwestern Territories, Inc. (NTI) signed by
Justin Wilson PE dated 2-10- 2015;
c) Geologic Hazard Assessment prepared by Stratum Group dated 12-24-2019;
d) Stormwater Plan Review Response from Stratum Group, dated 7-28-2021;
e) Stormwater Plan Review letter by Stratum Group, dated 4-21-2022;
f) Response Letter, dated 4-22-2022, from Engineer of Record (EOR), Justin
Wilson PE, JC Wilson Engineering & Consulting LLC, 18 pages;
g) Storm Drainage Plan from EOR, dated 4-22-2022 6:34 PM, 9 pages.
2. The proponent shall abide by the construction stormwater pollution prevention plan
and implement the Best Management Practices: C103 High Visibility Fence, C207 Check
Dams, C209 Outlet Protection, C233 Silt Fence, and C235 Wattles.
3. The proponent shall comply with and implement all applicable professional report
conclusions and recommendations submitted in connection with this Shoreline Permit
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 30 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
review, as approved by County Staff, subject to modifications needed to satisfy any specific
Condition of Approval, including without limitation the following Best Management
Practices (BMPs) recommended by qualified professionals, as submitted, reviewed and
accepted by Staff: T5.13 Post Construction Soil Quality and Depth, soil amendment for all
disturbed soils, T9.10 Basic Biofiltration Swale for Basic Treatment of road surfaces, and
100-year storm event Conveyance system of pipe, catch basins, yard and roof drains, ditches,
swales, berms, and outfalls to protect Geologic Hazardous Zone employing BMPs: C202
Riprap Channel Lining, C207 Check Dams, and C209 Outlet Protection.
4. Location of the 8-inch diameter stormwater collection pipe for lots 22 to 34 shall be
setback from the top edge of the steep bluff by at least 60 feet, in accordance with the
Stormwater Plan Review Response from Stratum Group, dated 7-28-2021.
5. At the time of building permit review, individual lots shall be limited to no more than
5,000 square feet of hard surfaces (roofs, driveway), and be required to control of all of their
stormwater with collection from all non-forested surfaces (roofs, foundations, driveways,
lawns, etc.), and conveyed to the storm drainage pipes or ditches as shown on the approved
storm drainage plan.
6. Prior to final approval of the stormwater permit, easements for access to repair,
replace, maintain, inspect, and monitor shall be recorded for the entire storm drainage
conveyance system, including without limitation all pipes, catch basins, yard and roof drains,
ditches, swales, berms, and outfalls.
7. Sites with greater than 1 acre of disturbance trigger the requirement to have a
developer provided Certified Erosion and Sediment Control Lead (CESCL) inspector and site
logbook, as per Element #12 Manage the Project, of Minimum Requirement #2 Construction
Stormwater Pollution Prevention. The CESCL inspector must be identified by the time of
start of construction and must be present on-site or on call at all times during any construction
related activity on the project site.
8. The proponent should verify with WA State Department of Ecology as to whether
they are required to apply for an NPDES Construction Stormwater General Permit (CSWGP).
9. Prior to commencing land disturbing activity, the proponent shall notify Jefferson
County Public Works (JCPW) and arrange a Preconstruction Meeting.
10. Before any construction begins on-site, erosion control facilities shall be installed.
11. In accordance with the Jefferson County Unified Development Code, Section
18.30.080 (1) (f): Clearing, grading, and construction of roads, bridges, utilities, and
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 31 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
stormwater management facilities shall be inspected by JCPW. In order to enable the
department to conduct inspections in a timely manner, the applicant shall notify the
department in a timely manner regarding the project construction schedule.
Typical Inspections include, without limitation:
• Installation of temporary erosion and sediment control measures (Required)
• Clearing (and Grading) and road subgrade preparation;
• Placing roadway gravel base;
• Placing roadway crushed surfacing top course;
• Placing improved roadway surface (chip seal or asphalt concrete);
• Construction of stormwater management facilities; (Required)
• Final plat review.
• (Additional inspections may be deemed necessary as project progresses.)
12. Potential Revisions; Additional Reviews; and Certification Required upon
completion that stormwater system has been constructed in accord with approved
specs and plans.
A. Requests or proposals to change the approved Stormwater System project design,
terms, or any conditions of approval included as part of this Permit, must be
considered in accord with JCC 18.25.770, re: Permit Revisions. A formal permit
Revision is required whenever the applicant/proponent proposes substantive changes
to the design, terms or conditions of a project from that which is approved in the
permit. Changes are substantive if they materially alter the project in a manner that
relates to its conformance to the terms and conditions of the permit, this program or
the Act. Changes that are not substantive in effect do not require a permit revision.
(See JCC 18.25.770).
B. Any changes or modifications to the approved Stormwater System design,
operations, facilities, or any of these Conditions of Approval, or reviews for future
permits on this site, are subject to review for consistency with then-applicable codes
and ordinances and does not preclude subsequent reviews or determinations that new,
revised, or additional permits are needed, all of which may be subject to specific,
additional conditions placed on such permits or approvals needed to authorize future
changes, modifications, or revisions, to the Stormwater System addressed in this
Shoreline Permit.
C. After construction of the approved Stormwater System is complete and prior to
final DCD project approval, the proponent shall submit a letter to the Public Works
Department, from the Engineer of Record (EOR), certifying that the stormwater
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 32 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
management facilities have been constructed per the approved plans & specifications,
and any approved modifications or revisions approved by the County in accord with
applicable Shoreline regulations. If the stormwater management facilities were
constructed other than shown on the approved plans, the EOR shall submit record
drawings showing the changes. It is the responsibility of the proponent to inform
County staff of any potential design changes, and to determine if a change requires a
Shoreline Permit Revision under JCC 18.25.770; and to schedule inspections with the
EOR, their designee &/or qualified inspection firm(s), approved by the EOR, to
provide for said final certification.
13. To meet MR#9 Operation & Maintenance, and to ensure that the approved stormwater
management facilities are appropriately maintained for the life of the project, prior to final
project approval, the proponent shall enter into a Stormwater Management Facility
Maintenance Agreement with Jefferson County, substantially in a form as approved by the
County’s Chief Civil Deputy Prosecutor. The Public Works Department will send a copy of
the Agreement to the proponent which has been signed by the Public Works Director. The
proponent shall sign the Agreement before a notary, file it with the Jefferson County Auditor,
and provide Public Works with a copy of the recorded document. County Auditor 2022
recording fees are $203.50 for the first page and $1 for each additional page.
14. The proposal shall comply with the engineered drainage plan dated October 18, 2022,
except as modified through this decision. Any modifications, changes, and/or additions to
the approved drainage plan shall be resubmitted for review and approval by Jefferson County
Department of Community Development, in accord with review procedures that apply to the
proposed modification at issue. Again, a Permit Revision is required if proposed
modifications would be substantive changes to the approved design or conditions of approval.
(See JCC 18.25.770 and WAC 173-27-100).
15. The applicant shall obtain a Stormwater Permit (ZON 2021-00005) from DCD prior
to the implementation of this proposal. The proposal shall be implemented incompliance
with the findings, conclusions, and recommendations of the following engineering and
geotechnical reports: NTI Engineering Drainage and Erosion Control Report dated
November 21, 2014; JC Wilson Engineering Stormwater Plan dated October 18, 2022 and
April 22, 2022; Stratum Group Geotechnical Report/Assessments dated December 24, 2019,
July 28, 2021 and April 21, 2022 – all as modified, if necessary, to be consistent with the
express terms of this Shoreline Permit, including without limitation any Conditions of
Approval.
16. The proposal shall be implemented in compliance with the findings, conclusions, and
recommendations of the Marine Surveys and Assessments Habitat Assessment, No Net Loss,
and Mitigation Plan dated September 28, 2022 – all as modified, if necessary, to be consistent
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
with the express terms of this Shoreline Permit, including without limitation any Conditions
of Approval. (Ex. 8).
17. Prior to final approval of the engineered drainage plan, the applicant shall fully
implement the Mitigation and Planting Plan prepared by Marine Surveys & Assessments
dated September 28, 2022, included in the Record as Exhibit 8. All mitigation and planting
undertaken to implement recommendations included in Ex. 8 shall be in accord with all
applicable BMPs, goals, performance standards, planting instructions, monitoring
requirements, maintenance requirements, and contingency measures provided in such Plan,
including without limitation those found in Sections 6 and 7 of Ex. 8.
18. Limitations on Vegetation and Tree Cutting and Removal.
A. Except for: i) removals, replacement, or vegetation maintenance work undertaken
in a manner and for reasons consistent with the Mitigation and Planting Plan (Ex. 8),
i.e. because a plant is dead, unhealthy, or not performing well in a particular location,
based on monitoring reports that establish such circumstance; or ii) a genuine
emergency situation, which must be certified in writing to the Director as soon as
practicable after any emergency situation has been resolved – no tree or vegetation
cutting or removal shall be allowed for any vegetation planted as part of these
Conditions of Approval before such vegetation has been established for at least 5
years.
B. After vegetation, including trees, planted to satisfy any Condition of Approval
have been established for at least five (5) years, as certified in monitoring reports
required in these Conditions of Approval, minor pruning of vegetation for view
enhancement may be allowed, following consultation with the Department and
written approval by the Director. Consistent with tree protection standards found in
JCC 18.22.530 as currently written or may subsequently be amended, the thinning of
limbs on individual trees is preferred to topping of trees for view corridors. In no
event shall total vegetation thinning exceed 25 percent of vegetation coverage
proposed for cutting and no more than 30 percent of live tree crowns shall be removed.
Any reports submitted to support a tree or vegetation-cutting request must certify that
the proposed cutting will not adversely impact or degrade the health of plant(s)
proposed for cutting; or, if the tree or plant is dead or unhealthy and requires removal,
a replanting and replacement plan shall be submitted for review and approval by the
County.
C. Vegetation shall not be removed from any landslide hazard area except as outlined
in the approved drainage plan and the Mitigation and Planting Plan prepared by
Marine Surveys and Assessments (MSA) dated September 28, 2022, or for reasons
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 34 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
provided in this Condition. (See JCC 18.22.530(1)(b); and Ex. 8).
19. Clearing, grading and installation of the engineered drainage system shall be limited
to the period between May 1st and October 1st (See JCC 18.22.530(1)(c)).
20. Revegetation required for portions of Lots 22-34. Prior to the implementation of this
proposal – and to increase protection for portions of the subdivision that may face risks
associated with geologically hazardous areas on the site – the applicant shall revegetate areas
deficient in native trees and native shrubs within the 50-foot buffer located at the top of the
landscape hazard area (head scarp) within Lots 22 to 34. This requirement is consistent with
and implements provisions of the County’s Shoreline Master Program and Critical Areas
Protection codes, including without limitation those found in JCC 18.22.530(3) and WAC
173-27-150(2).
A. Planting plan. The area addressed in this Condition shall be revegetated with
Shore Pines planted 20-foot on-center and native shrubs (such as Snowberry, Nootka
Rose, Evergreen Huckleberry, Sword Ferns, Red Osier Dogwood, and the like) shall
be planted 5-foot on-center between the trees. As an alternative to the
vegetation/planting plan included in this Condition, the Permittee may have a
qualified professional biologist or geotechnical engineer submit an alternate
revegetation plan that provides the same or better protections for portions of the
subdivision that face risks associated with geologically hazardous areas on the site.
Any proposed alternative revegetation plan shall be subject to review and approval
by the DCD Director, who has full discretion and authority to condition or reject any
alternative revegetation plan, for good cause.
B. Mitigation Goals, Performance, Monitoring, Maintenance, and Contingencies.
i. Mitigation Goals. Create a revegetated area in within the 50-foot buffer
area located at the top of the landscape hazard area (head scarp) within
portions of Lots 22 to 34, to increase protection for portions of the subdivision
that may face risks associated with geologically hazardous areas. Like the
replanting required in other Conditions, this additional revegetation
requirement is intended to enhance the ecological value and function of the
habitat within the critical area buffer by reducing erosion, improving nutrient
input, and creating wildlife habitat.
ii. All mitigation and planting undertaken to implement this Condition No. 20
shall be consistent with all applicable BMPs, goals, performance standards,
planting instructions, monitoring requirements, maintenance requirements,
and contingency measures provided in the MSA Mitigation Plan (Ex. 8) for
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 35 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
planting work required by Conditions above in other parts of the subdivision,
including without limitation those found in Sections 6 and 7 of Ex. 8, the MSA
Habitat Assessment and Mitigation Plan. Sec. 6 includes relevant Mitigation
Goals, Performance Standards, Planting Instructions, and Inspection
guidelines. Sec. 7 addresses Monitoring and Maintenance, as well as
Contingency Actions that may be implemented if plants do not survive or
satisfy performance standards at the site, with additional monitoring if
significant replanting is necessary.
21. Except as modified by this Decision or any Condition of Approval for this Shoreline
Permit, all future development in the subdivision shall be consistent with recommendations
and design limitations provided in Ex. 7, the Geotechnical Report and Assessments
performed by the Stratum Group, including without limitation the following setbacks: a 75-
foot setback for residences and septic systems, and a 60-foot setback for drainage facilities
(8 inch collection pipes) from the top of the slope of the landslide hazard area (head scarp)
per JCC 18.22.530(12).
22. Prior to the issuance of any development permits on Lots 22 to 34 of the TPS, a notice
and disclosure of the geologically hazardous areas shall be filed with the Auditor that meets
the requirements found in JCC 18.22.550(1).
23. Prior to any clearing or land disturbing activity for the installation of the engineered
drainage system, the geotechnical engineer shall stake the 60-foot buffer for the drainage
system (collector pipes) and the 75-foot buffer for residences and the septic systems from the
top of the head scarp area. The engineer shall also stake the location of the toe of the land
disturbing activity for any areas located outside of the proposed engineered drainage system
and outfall. This shall be in compliance with JCC 18.22.550(3).
24. The applicant shall comply with the Jefferson County Inadvertent Discovery Plan. All
contractors and personnel shall be familiar with and responsible for implementing the
County’s approved Inadvertent Discovery Plan (IDP), a copy of which shall be maintained
in the County’s project file for this matter. If any potential historic, archaeological and/or
cultural artifacts are inadvertently discovered, the applicant shall immediately stop all work
on the project and shall notify the Washington Department of Archaeology and Historic
Preservation, Jefferson County Department of Community Development, and affected tribes.
A full copy of the County’s approved IDP will be provided to the applicant upon issuance of
any development permits.
25. The applicant shall obtain all necessary state and federal permits or approvals required
for any aspect of the project addressed in this shoreline permit. This may include, without
limitation, a Hydraulic Project Approval from the WDFW.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 36 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
26. The applicant shall submit a stamped letter from a geotechnical engineer licensed in
Washington State that the engineered drainage plan was “installed as designed” (IAD) to
geotechnical report and geologic assessments submitted and approved for this proposal. The
IAD letter shall be submitted to the Jefferson County DCD and the Public Works Department
for review and approval prior to utilizing the engineered drainage system.
Conditions added by the Hearing Examiner.
27. As mandated by JCC 18.25.760, re: Initiation of development, construction and
development pursuant to this shoreline substantial development permit shall not begin and
shall not be authorized until 21 days after the “date of filing” or until all review proceedings
before the Shoreline Hearings Board have terminated. “Date of filing” for a substantial
development permit is the date of actual receipt of the decision by the Department of Ecology.
28. No construction or site development activities related to the approved project may be
undertaken until all required land-use and engineering approvals become effective, and the
County and other regulatory authorities with jurisdiction issue applicable permits or
approvals.
29. The Permittee shall be responsible for consulting with state and federal agencies, and
tribal entities with jurisdiction (if any) for applicable permit or other regulatory requirements.
Approval of a Shoreline Permit does not limit the Permittee’s responsibility to obtain any
required permit, license or approval from a state, federal, or other regulatory body. Any
conditions of other regulatory agency permits/licenses/approvals shall be considered
conditions of approval for this Shoreline Permit and are incorporated herein by this reference.
30. The Permittee shall submit true and correct copies of subsequent permit or review
decisions (including approvals, conditions, denials and the like), issued by other agencies
with jurisdiction over any aspect of this project to the County’s Department of Community
Development, which shall maintain copies of such decisions in the project file for this
Shoreline Permit and associated County permit files, including without limitation any Type
I Stormwater Permit issued for the applicant’s proposed drainage system.
31. All subsequent plans and submittals necessary to obtain additional approvals needed
from the County or other government agencies shall conform to then-applicable provisions
of the Jefferson County Code and the Conditions of Approval herein.
32. All development in the Termination Point Subdivision shall be consistent with any
conditions of approval included as part of this Decision, and shall, at a minimum, ensure that
stormwater best management practices are in place before any construction activities take
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 37 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
place anywhere within the plat served by the approved stormwater project addressed in this
permit.
33. As provided in JCC 18.25.860, captioned “Transfer of permits”, this shoreline
substantial development permit may be transferred from the original project proponent to any
successor in interest to the project proponent; provided, that all of the conditions and
requirements of the approved permit or variance shall continue in effect as long as the use or
activity is pursued or the structure exists unless the terms of the substantial development
permit are modified in accordance with the relevant provisions of the County’s Shoreline
Master Program.
34. As provided in JCC 18.25.780, captioned “Rescission and modification”, any
shoreline permit may be rescinded or modified upon a finding by the hearing examiner that
the permittee or his/her successors in interest have not complied with conditions attached
thereto. For this Permit, a specific monitoring plan has been required as a condition, with
specific reporting requirements. If the monitoring plan is not implemented, the permittee may
be found to be noncompliant. The results of a monitoring plan may show a development to
be out of compliance with specific performance standards, which may be the basis for
findings of noncompliance. (See JCC 18.25.780(1), and additional procedures for possible
recission or modification of shoreline permits found in JCC 18.25.780).
35. As provided in JCC 18.25.700(1), captioned “Expiration of permits and permit
exemptions”, construction of the project authorized in this Decision shall be commenced
within two years of the effective date of this Shoreline Substantial Development Permit;
provided, that the administrator may authorize a single extension based on reasonable factors,
if a request for extension has been filed before the expiration date and notice of the proposed
extension is given to parties of record and the Department of Ecology.
36. Any future development permit applications submitted for projects within the
Termination Point Subdivision, including without limitation applications to construct new
homes in the subdivision, are subject to review for consistency with all terms and conditions
of this Shoreline Permit, as well as then-applicable codes and ordinances that apply to such
proposal. Consistent with applicable law, if there is a conflict between requirements found
in this Shoreline Permit or other County development regulations, the more restrictive
provisions shall apply. (See JCC 18.25.070(4)).
//
//
//
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 38 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
Bond or Financial Assurance Requirements.
37. As explained in JCC 18.25.610(2)(h), the County’s Hearing Examiner is vested with
the authority and responsibility to, at his or her sole discretion, require any project proponent
granted a shoreline permit to post a bond or other acceptable security with the county,
conditioned to assure that the project proponent and/or his or her successors adhere to the
approved plans and all conditions attached to the shoreline permit. Such bonds or securities
shall have a face value of at least 150 percent of the estimated development cost including
attached conditions. Through this Condition, the Examiner exercises such authority, and
imposes such requirement, to assure consistency with the goals and requirements in the
Shoreline Management Act and the County’s Shoreline Master Program. This Condition is
further supported by requirements for financial assurance in situations where compensatory
mitigation measures are required, like the vegetation planting addressed in the MSA Habitat
Assessment and Mitigation Plan (See Ex. 8; and Conditions 16, 17, 18) and the revegetation
requirement addressed in Condition No. 20. (See JCC 18.25.270(2)(f))
Accordingly, the Permittee shall post a bond or provide another financial assurance
device, which can include without limitation an assignment of funds, confession of
judgement, lien, or financial obligation placed on benefited properties in the Termination
Point Subdivision, equal to at least 150 percent of the estimated cost of the mitigation in order
to ensure the mitigation is carried out successfully, which shall include an amount to cover
the cost of professional services required for monitoring, planting, ongoing maintenance, and
generating reports required by these Conditions. The Permittee may propose a financial
assurance plan intended to satisfy this Condition, subject to review and approval by the
County, with the final bond or financial assurance device(s) selected to be in a form as
approved by the County’s Chief Civil Deputy Prosecutor, in consultation with the County
Administrator. Any bond or security instrument shall be refunded to the proponent upon
completion of the mitigation activity and any required monitoring.
* End of Conditions.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 39 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
Final Decision,
Request for Reconsideration or Clarification,
Appeal Rights
The Hearing Examiner is authorized to issue Final Decisions for matters listed in JCC 2.30.080(2).
Decisions of the Hearing Examiner may be subject to a request for reconsideration or clarification, by parties with standing
and in the time and manner specified in the Jefferson County Hearing Examiner Rules of Procedure, including without
limitation HEx Rules 6.5 and 6.6.
Final Decisions of the Hearing Examiner on a Shoreline Permit application are subject to Reconsideration and Appeal as
explained in HEx Rule 6.7 and JCC 18.25.750, which reads in part as follows:
JCC 18.25.750, Notice of Decision, Reconsideration and Appeal.
(1) A notice of decision for action on a shoreline substantial development permit, shoreline variance, or
shoreline conditional use permit shall be provided to the applicant/proponent and any party of record in
accordance with the procedures of Chapter 18.40 JCC and at least 10 days prior to filing such decisions with
the Department of Ecology pursuant to WAC 173-27-130.
(4) The applicant/proponent or any party of record may request reconsideration of any final action by the
decision maker within 10 days of notice of the decision. Such requests shall be filed on forms supplied by
the county. Grounds for reconsideration must be based upon the content of the written decision. The decision
maker is not required to provide a written response or modify his/her original decision. He/she may initiate
such action as he/she deems appropriate. The procedure of reconsideration shall not preempt or extend the
appeal period for a permit or affect the date of filing with the Department of Ecology, unless the
applicant/proponent requests the abeyance of said permit appeal period; and
(5) Appeals to the Shoreline Hearings Board of a decision on a shoreline substantial development permit,
shoreline variance or shoreline conditional use permit may be filed by the applicant/proponent or any
aggrieved party pursuant to RCW 90.58.180 within 21 days of filing the final decision by Jefferson County
with the Department of Ecology.
NOTE: Additional filing, procedural, and standing requirements are found in other parts of the Jefferson County Code and
in state Shoreline regulations addressing appeals before the Shoreline Hearings Board. State law provides short deadlines
and strict procedures for appeals and failure to timely comply with filing and service requirements may result in dismissal
of any appeal. Persons seeking to file an appeal are encouraged to promptly review appeal deadlines and procedural
requirements and confer with advisors of their choosing, possibly including a private attorney.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 40 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION – APPROVING SHORELINE
SUBSTANTIAL DEVELOPMENT PERMIT FOR NEW
STORMWATER SYSTEM IN THE TERMINATION
POINT SUBDIVISION –
FILE NO. SDP 22-00019
Page 41 of 41
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JEFFERSON COUNTY HEARING EXAMINER
621 SHERIDAN STREET PORT TOWNSEND, WA 98368