HomeMy WebLinkAboutRequest for Reconsideration re Rock Point Oyster DEPARTMENT OF COMMUNITY DEVELOPMENT
631 Sheridan Street,Port Townsend,\VA 98368 RECEIVED
Tel:360.379.445o ; Web:ivww.co.jefferson.wa.us/coinmunin-development
.c,rry..c` E-mail:dcd4i,co.jefferson.wa.us MAR 0 5 2025
JEFFERSON COUNTY
COMMISSIONERS
REQUEST FOR RECONSIDERATION
Must be received within 10 calendar days from date of decision mailed
Person Requesting Reconsideration
Name: Marilyn Showalter
Mailing Address: 1596 Shine Rd, Port Ludlow, WA 9365
Phone it 360-259-1700 E-mail Address: marilyn.showalter@gmail.com
Reconsideration Information
Project Application Number: #SDP 2024-00001
Action/Item to be reconsidered (Please clarify the request by indicating what specific condition or action is
subject to the request for reconsideration): Finding of Fact 13, page 12/26 of the Decision
Principal parties: Rock Point Oyster(Lee Steele),Jefferson County WA(Donna Frostholm)
Please explain the reasons for this request below or attach additional sheets.
As per Jefferson County Code 18.25.750(4),grounds for reconsideration must be based upon the content of the written
decision. Reconsideration should be granted only when an obvious legal error has occurred or a material factual issue
has been overlooked that would change the previous decision, see also Hearing Examiner Rules of Procedure Rule 6.5:
"The grounds for seeking reconsideration shall be limited to the following: ( 1)the examiner exceeded their jurisdiction;
(2)the examiner failed to follow the applicable procedure in reaching a decision; ( 3)the examiner committed an error
of law or misinterpreted the applicable policy, regulation, or law; (4)the examiner's findings,conclusions,or
conditions are not supported by the record; and, (5) newly discovered evidence alleged as material to the examiner's
decision which could not reasonably have been produced at the hearing.
See attached.
LSignature: Print Name: Marilyn Showalter Date: March 5, 2025
MARILYNSHOWALTER
1596 Shine Road, Port Ludlow, WA 98365
marilyn.showalter a gmail.com,360-259-1700
March 5, 2025
The Honorable Gary N. McLean
Jefferson County Hearing Examiner
c/o Carolyn Galloway
carolyn@co.jefferson.wa.us
Jefferson County, Washington
Dear Hearing Examiner Gary N. McLean:
Re: Request for Reconsideration/Clarification of Hearing Examiner's Decision
File No. SDP2024-00001,Rock Point FLUPSY
First, thankyou for Condition 22 (page 23/26of theabove-captioned Decision) imposing
(p g p p g
accountability and public-accessibility requirements. They will help ensure compliance with
certain conditions and will help provide important information to the public.
I write to request reconsideration/clarification of the language in Finding of Fact, Paragraph 13,
page 12/26 of the Decision. I urge modification of the language as follows. Note: The proposed
language does not change the outcome of the decision.
Proposed:
13.The Staff Report summarizes the application review and public noticing provided in
connection with this matter,-ver-ifying purporting to verify that applicable notice
requirements were satisfied for this public hearing process. On the date of the Staff Report,
October 30,2024,there was insufficient verification of adequate notice of this hearing posted
at the project site(Exhibit 34,page 8, incorrect location and description of project and no
returned signed affidavit of posting; see also Exhibit 36,page 2). However,at the hearing on
November 14, 2025,Exhibit 36 was admitted,which contained a signed affidavit that a
notice with an accurate description of the project was in place by November 4,five days
short of the required 15-day notice. One set of comments expressed concerns that public
notices mistakenly stated that a hearing examiner decision is only appealable to superior
court, ,which would-be is a mistake in this instance, as
decisions on Shoreline Substantial Development Permits are subject to review by the
Shoreline Hearings Board.This Decision, like others issued by the Examiner, is written
to inform interested parties as to their avenues of appeal, if they choose to do so.No one
presented any preponderance of evidence to establish that any members of the public
were unable to or somehow discouraged to participate in the hearing process for this
Showalter Request for Reconsideration
SDP2024-00001 Rock Point FLUPSY
matter. The site-posted Notice of the Public
Hearing was were modified and posted as needed, albeit tardily, and this Decision
informs interested and qualified parties how to appeal. The notices were adequate and
ineluded-kfeFmatiewto inform interested parties of their opportunities to submit
comments, participate in a public hearing, where the project is located, and what the
project generally entails.Those who wanted to offer comments did so, and such
comments have been duly considered.Anyone who wishes to appeal this decision is free
to do so, in accord with applicable law, generally summarized and explained on the final
page of this document.N^ ^ abili .,t^ . ^al this Decision ea i by
for this matter. Given the remote location of the posting site and given that neighbors
were given timely personal notice, the notices in this case were adequate, if flawed. This
Decision should not, however, be taken generally to condone errors of law or timing in
notices,which must comply with county and state requirements.
Myconcerns are that a)theparagraph sho 1 factually c n consistent with the record should beorrect a d ,
and b)Decision language that accepts or excuses errors in the public notices should expressly be
limited to this case—so that the Decision is not more broadly interpreted to excuse errors in
other cases that might have very different consequences and were not in the record or examined
in this case. This request is brought pursuant to Jefferson County Hearing Rule 6.5 (a)(4)and
Rule 6.6. Each proposed modification is discussed as follows:
The Staff Report,dated October 30,2024, falsely verified that adequate notice had been
given. On that date, Exhibit 34 was the only document in the Hearing Examiner's file addressing
the posting of notice on the site. It instructed the applicant to post a notice that was for a
different location and project(Exhibit 34, page 8). It also did not show a returned affidavit of
posting. I objected to these errors(Exhibit 39). On the date of the Staff Report, none of the
correspondence in Exhibit 39 had taken place, and no notice had in fact been posted(Exhibit 39
pages 1 and 2). Therefore,the first sentence of paragraph 13 should be modified to read:
Proposed:
The Staff Report summarizes the application review in connection with this matter,
verifying purporting to verify that applicable notice requirements were satisfied for this
public hearing process.
Given the inadequacy of Exhibit 34 and of the Staff Report's mistaken verification,further
explanation in the Decision is warranted. Exhibit 36,which was admitted at the beginning of
the hearing on November 14, 2024, shows that the applicant became aware of the error and
scrambled to correct it. ("The location, as well as the explanation for the project proposed is all
incorrect. It looks as though this project summary is for a different project entirely."Exhibit 36,
page 2) Exhibit 36 further shows that the notice was corrected and then posted on-site(per the
affidavit)on November 4, 2024. Thus,no notice of any kind was posted at the site until five
days after October 30,2024,which was the 15-day advance deadline required by JCC
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Showalter Request for Reconsideration
SDP2024-00001 Rock Point FLUPSY
18.40.230(3)and JCC 18.40.210(2) (d). For an accurate record of this sequence, the following
language should be added:
Proposed:
On the date of the staff report,October 30,2024,there was insufficient verification of
adequate notice of this hearing posted at the project site(Exhibit 34,page 8, incorrect
location and description of project and no returned signed affidavit of posting; see also
Exhibit 36, page 2). However,at the hearing on November 14, 2025,Exhibit 36 was
admitted,which contained a signed affidavit that a notice with an accurate description of the
project was in place by November 4, five days short of the required 15-day notice.
There was a clear error of law stated in the public notices and this error was clearly
articulated in Exhibit 39. As the Hearing Examiner states, and no one contests, the Notice of
Application (as published, mailed, and site-posted, Exhibit 8, ppl, 8-9)erroneously states that
appeal of the case is only to a court, instead of to the Shoreline Hearings Board. In Exhibit 39,
timely filed the day before the hearing, I clearly stated this error and clearly objected to it. I
suggest the following editorial change:
Proposed:
One set of comments expressed concerns that public notices mistakenly stated that a
hearing examiner decision is only appealable to superior court,Of-semething-te41+is
effect, which would-be is a mistake in this instance, as decisions on Shoreline Substantial
Development Permits are subject to review by the Shoreline Hearings Board.
When a notice is inaccurate or is untimely published or posted or distributed,one cannot
know who might have seen and responded to the notice had it been accurate and had been
timely published and distributed as required. The purpose of public notices is to make the
public aware of a public event or deadline, for a period of time in advance of the public event or
deadline. If that period is unlawfully shortened, there may be people who would have become
engaged had period been as legally required. If the notice is inaccurate, the public may be
misled as to their options. Because a notice of application is a threshold event, one cannot say
"no one"was prejudiced by a faulty notice, because it's impossible to know who or what might
have been precluded from consideration. For example(and these are not fanciful examples):
• Notice of a public hearing is issued 7 days before the hearing instead of 15. A person
who would have responded leaves for vacation and never sees the notice.
• A person who duly requested to be notified of an application and other procedure is not
notified and thus is unaware of the application or SEPA appeal period until long after the
appeal period has passed.
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Showalter Request for Reconsideration
SDP2024-00001 Rock Point FLUPSY
• A notice erroneously lists a deadline for a SEPA appeal that precedes the date of the
notice. A person who looks at the notice thinks the deadline is long past.
• A notice provides incorrect email information on how to respond. A person's comments
to the wrong email address are never received, unless the person becomes aware of and
finds the correct address and comments again.
• A notice is captioned under the wrong file number. A person following the correct file
number pays no attention to the notice with the wrong file number and misses important
procedural information.
These are situations that were not examined or evaluated in this case by the Hearing Examiner.
It is important that paragraph 13 not be interpreted to allow these sorts of unexamined situations.
If the Hearing Examiner is going to find that notice was adequate in the instant case, the
language of the Decision should be limited to the facts of this case. I suggest the following:
Proposed:
Public,=etices i„ued f r th l The site posted Notice of the Public Hearing was
were modified and posted as needed, albeit tardily, and this Decision informs interested
and qualified parties how to appeal.The notices were adequate
to inform interested parties of their opportunities to submit comments, participate in a
public hearing, where the project is located, and what the project generally entails. Those
who wanted to offer comments did so, and such comments have been duly considered.
Anyone who wishes to appeal this decision is free to do so, in accord with applicable law,
generally summarized and explained on the final page of this document.Ne-en
Given the remote
location of the posting site, and given that neighbors were given timely personal notice,
the notices in this case were adequate, if flawed. This Decision should not, however, be
taken generally to condone errors of law or timing in notices, which must comply with
county and state requirements.
Thank you for considering this request.
Sincerely,
%2cee r S4ocuatteic
Marilyn Showalter
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