Comments on County’s Questions to Seattle attorney

Comments on County’s Questions

              Note: The County developed questions for the Seattle attorney they have                           hired to review the Timber Harvesting case. That lawyer is P. Schneider.                                    The three chairs of the Ad hoc Timber Harvesting Committees                         put together these comments regarding the County’s questions.

Here are some brief comments on the county’s questions:

Q1. Does the county have authority to regulate non-conversion forest practices within the MPR when the forest practices are not occurring within the shoreline jurisdiction?

It seems strange for the county to lead off its list of questions with this one. Asking this question without including the fact of the Development Agreement is like asking whether I have the right to cross your land without including in the question the fact that you gave me an easement. It also begs the question whether prohibiting non-conversion timber harvesting constitutes “regulation” of forest practices. It is like asking whether prohibiting operation of a steel mill in a given zone constitutes “regulation” of steel manufacturing.

In the present context, the pertinent question is “Does the county have authority to enforce against PLA the land use restrictions to which Pope agreed in the Development Agreement?” The answer to this question is unequivocally “yes,” for the reasons set forth in our letter of July 20.

Q2. Does the answer to question #1 change for properties owned by the developer and subject to the development agreement and the development regulations known as the “MPR Code” or Title 17 of the Jefferson County Code?

The phrasing of this question is peculiar. The question should have been asked and answered as set forth in our comment to Question #1, above.

Q3. Would JCC 18.20.160, adopted after the Development Agreement and MPR Code were signed/enacted, apply to non-platted properties within the MPR? 

Nothing in the Development Agreement prevents the county from adopting ordinances applicable to PLA or to property within the MPR, so long as the ordinances do not impose new or different development standards on property within the MPR that was owned by Pope when the Agreement was entered into. In other words, JCC 18.20.060 cannot be construed or applied to prohibit land uses that are permitted by the Development Agreement, nor to permit land uses that are prohibited by the Agreement. It does not matter whether the property in question is platted or non-platted, since whether a particular use is permitted or prohibited under the MPR zoning code incorporated in the Agreement does not depend on whether the land in question is platted or not.

Furthermore, since the parties did not intend the land within the MPR to be used for commercial timber harvesting (i.e., for non-conversion timber harvesting) (see, e.g., discussion in second paragraph on page 7 of our July 20 letter), the Pope (now PLA) land within the MPR is not “forest land” or “forest resource lands” within the meaning of the Growth Management Act (see RCW 36.70A.030(8)) or the Jefferson County Code (see JCC 18.10.060) and is not subject to JCC 18.20.160.

Q4. In general, would JCC 18.20.160 apply to non-platted properties subject to the development agreement?

a. Would the six-year moratorium apply to forest practices inside the MPR per JCC 18.20.160(5)(b)?

b. If Title 18 does not apply to PLA, LLC because of the 2000 Development Agreement, then what would be the length of the moratorium per either their permit application with DNR or state law?

This question is a red herring piled on top of red herrings. As explained in our comment to Question #3, above, whether the land in question is platted or not has no bearing on whether a particular use is permitted or prohibited by the MPR zoning code incorporated in the Development Agreement. Because the parties did not intend to use the Pope (now PLA) land within the MPR for non-conversion timber harvesting, that land is not “forest land” or “forest resource lands” and is not subject to JCC 18.20.160, so questions about the “applicable” moratorium periods are misplaced.

Moreover, the premise to subpart (b) of the question is false; it would be incorrect to say that “Title 18 does not apply to PLA, LLC because of the 2000 Development Agreement.” There is no reason why Title 18 would not apply to PLA, except insofar as Title 18 would impose new or different development standards on the property within the MPR that was owned by Pope when the Agreement was entered into. The county was and is free to adopt ordinances that do not impose new or different development standards on the land subject to the Development Agreement. Thus, PLA is just as subject to Title 18 as any other citizen, except as to any new or different development standards for the land in question. For example, the enforcement provisions of JCC Chapter 18.50 are applicable to PLA. In this connection, see JCC 17.05.050(8) and 18.15.138.

Q5. Does the FEIS affect what PLA can do in the open space zoned tracts? Does the section on page 2-7 Open Space and Recreation, apply to land within plats or also to open space zoned tracts-note all the land that is the subject of this question is inside the MPR? See associated question #9 and Map 815 Acres.

This question and the other ones about the 1993 FEIS (Nos. 7, 8 and 9) have little or no bearing on the key issue of whether PLA is or is not entitled to do commercial (non-conversion) timber harvesting within the MPR. The 1993 FEIS was simply a planning tool for further development within the Port Ludlow area as then envisioned. It was an assessment of environmental impacts of the proposed development and of two alternatives: (1) the “No Action” alternative, in which the site would be left in its present condition, and (2) the “Reduced Development Area” alternative, in which the same number and type of new residential units and same amount and type of new commercial development would occur, but on fewer total acreage. FEIS at 1-2.

Unlike a contract or an ordinance, the FEIS was not a “prescriptive” document, in that it did not require or prohibit anything; it merely described the environmental impacts of the proposed development and the two alternatives. The project site was substantially different from the site of the MPR established five years later. (Compare the map of the project site as shown in Figure 2, FEIS at 2-4, to the map of the MPR.) And, of course, the land use classifications and allowable uses described in the 1993 FEIS were very different from those set forth in the MPR zoning code incorporated in the Development Agreement.

To the extent the 1993 FEIS has any bearing at all on the present issue (whether PLA is entitled to do non-conversion commercial timber harvesting within the MPR), it supports the conclusion that Pope and the county intended (as of 1993) that such timber harvesting would not be done within the project area. The best indication of this is the fact that “commercial logging” is mentioned as a possible use of the site in the description of the “No Action” alternative but not in the description of the “Proposed Action” or the “Reduced Development Area” alternative. See FEIS at 1-1 and 1-2. This conclusion is further supported by the statement that “Native vegetation would be maintained on undeveloped areas.” FEIS at 1-4.

Turning to the two specific questions asked in paragraph 5 of the county’s list of questions, the answer to the first one is that the 1993 FEIS is merely a planning tool describing environmental impacts of a proposed project and of two alternatives, and does not directly “affect” what PLA can or cannot legally do in the Open Space Reserve zones as set forth in the MPR zoning code incorporated in the 2000 Development Agreement, except to the extent it may have some relevance in indicating Pope’s and the county’s intent (in 1993) as to whether commercial logging would be done if the development project went forward. The answer to the second question is that the language on page 2-7 of the FEIS dealing with “Open Space and Recreation” apparently refers both to “open space” land that is within platted “individual residential areas” and to “open space” areas that are “between” or outside of platted “individual residential areas”:

. . . Open spaces would also provide physical and visual separation between residential areas, golf course and roadways. All open space within individual residential areas would be dedicated in perpetuity to either that particular neighborhood association or to the master homeowners’ association (the South Bay Community Association).

FEIS at 2-7 (emphasis added). Presumably the references to “residential areas” or “individual residential areas” mean platted residential areas; there is nothing in the FEIS indicating otherwise. 6

Q6. Does the open space tract created for the plat known as Wildwood per JCC 17.10.060 serve as a buffer between residential parcels within the plat and commercial forest activities to take place on unplatted land outside the plat, and thus may the County assume that forest practices will occur on the adjacent non-platted property zoned MPR-Open Space Reserve?

Unfortunately Mr. Alvarez refused to tell me what background materials were provided to you, other than the questions themselves, so I do not know what information was given to you about the so-called “Wildwood” plat. I am unfamiliar with that plat or with “the open space tract created for the plat known as Wildwood.” I am unaware of any “Wildwood” village within the Port Ludlow MPR. However, it is apparent that whoever drafted this bizarre question is either confused about the zoning classifications within the MPR or is hell-bent determined to find some purported justification, no matter how illogical, to try to support the unjustifiable conclusion that timber harvesting is permissible within the Open Space Reserve zone.

There are some “open space tracts” within residential village plats that are owned by the village homeowners association but under the applicable CC&Rs are to be preserved as open space. Those tracts typically have the same residential zoning classification as the rest of the village. The “Open Space Reserve” tracts, on the other hand, are owned by PLA and are zoned OSR. See the map of Port Ludlow Comprehensive Plan Land Use Designations, submitted with this memorandum.

It is unclear what kind of “open space tract” is referred to in Question #6. It is unclear whether the purpose of creating that “open space tract” was to serve as a “buffer [against] commercial forest activities” as assumed in the question or for some other purpose, such as preserving park-like open space for the enhancement of the residential area in question. It is also unclear what tracts are being referred to in the phrase “commercial forest activities to take place on unplatted land outside the plat.” Under the county’s comprehensive plan there are “Commercial Forest” zones but there is no land zoned “Commercial Forest” within the boundaries of the MPR.

JCC 17.10.060 provides for buffers (set-back requirements) for new developments on property “adjacent to lands designated commercial forest.” There are no lands designated commercial forest within the MPR, but there are lands designated commercial forest immediately outside the MPR. The MPR-OSR designation is not a commercial forest (“CF”) designation (the purpose of the MPR-OSR designation is set forth in JCC 17.40.010). Thus, JCC 17.10.060 would apply to new development on property within the MPR that is adjacent to land designated CF outside the MPR but would not apply to property that is adjacent to land designated MPR-OSR.

The answer to Question #6 is No, there is no logical basis to assume that “forest practices” (meaning commercial timber harvesting) will occur on property zoned MPR-OSR. In fact, for the reasons explained in our July 20 letter (including the stated purpose of the MPR-OSR zone set forth in JCC 17.40.101) the only logical conclusion is that commercial timber harvesting will not occur in the MPR-OSR zone. In this connection, see also JCC 17.05.050 (“the most restrictive and/or protective standards shall apply”).

Q7. Does the “No Action” alternative in the 1993 FEIS Chapter 1 Summary, which “No further development would be proposed at this time, but future proposals would be anticipated. In the interim, commercial logging could occur on portions of the site, depending on the suitability of the wood for harvesting,” have any bearing on whether “clear cutting” or commercial timber harvesting (CTH) is lawful within the MPR as built out under the Proposed Action, which was adopted under the Comprehensive Plan and Development Agreement?

As explained above at pages 4-5 in response to Question #5, the fact that “commercial logging” is mentioned as a possible use under the “No Action” alternative but not under the “Proposed Action” or the “Reduced Development Area” alternative (i.e., under either of the two “development” scenarios) supports the conclusion that commercial timber harvesting was not an intended use of the property if development of Port Ludlow went forward.

Q8. Does the Mitigation Measures for Earth under the FEIS (page 1-4) which states, “native vegetation would be maintained on undeveloped areas,” preclude clearing cutting or CTH in the MPR-OSR zone, or MPR-SF zone without a Class IV General FPA for conversion to residential use?

It would be an overstatement to say that that statement in the 1993 FEIS “precludes” clear-cutting within the MPR-OSR or non-conversion clear-cutting within the MPR-SF (or MPR-SFT) zone, but as explained above at page 5 it does provide some support for the conclusion that such clear-cutting was not intended.

Q9. Is it reasonable to assume that the 815 acres referred to in the FEIS (page 2-7) on Open Space and Recreation, (see 815 Acres Map) is just for open space within residential plats, or would it have to include the MPR-OSR and MPR-RA zones? 

I have not been provided with a copy of the “815 Acres Map” so I cannot be certain what it shows, but it seems obvious from the acreage figures shown in Table 1 (FEIS page 2-6) and the map of the numbered development areas shown in the Program Development Plan (Figure 3) that the 815-acre total referenced in the 1993 FEIS at page 2-7 must include areas that were subsequently zoned MPR-OSR and MPR-RA (compare Figure 3 with the Comprehensive Plan map submitted herewith).

Q10. Does RCW 36.70A.362(3) and Resolution 72-98 (which is also Appendix B of the Development Agreement) adopting the Jefferson County Comprehensive Plan (page 23, finding #16), which states, “The BOCC finds that because of its development history and patterns of development, the land on which Port Ludlow is located is determined to be better suited and has more long-term importance as a Master Planned Resort than for the commercial harvesting of timber or agricultural production,” negate or preclude CTH within the MPR designation?

The statute describes criteria for establishing a master planned resort. The county commissioners made the finding required by the statute. Although the statute and the finding do not by themselves fully “negate” or “preclude” commercial timber harvesting within the MPR, they certainly do provide strong support for the conclusion that commercial timber harvesting was not an intended use of MPR land and should not be considered an impliedly permissible use of land within the MPR.

Q11. If yes to #10, wouldn’t PLA be precluded from CTH when it purchased Pope’s property within the MPR as a successor in title to the Development Agreement.?

Yes, PLA stands in Pope’s shoes under the Development Agreement and is bound by the land use restrictions set forth in the MPR zoning code incorporated in that Agreement. See §§ 4.2.1 and 4.2.2 of the Development Agreement.

Q12. If yes to #11, would this also apply to other property owners who purchased their property within the MPR from Pope?

Yes. See §§ 4.2.1 and 4.2.2 of the Development Agreement.

Q13. Because RCW 36.70A.362 says that an MPR “may constitute urban growth outside an urban growth area,” would CTH within the MPR require a Class IV General Forest Practice Application Permit (FPA) from DNR under RCW 76.09.240 and WAC 222-16-050?

It seems apparent that the legislative policy reasons for treating urban growth areas (“UGAs”) differently from non-urban areas with respect to forest practices should also apply to MPRs, but technically an MPR is not a UGA. However, for the reasons set forth in our July 20 letter at pages 9-10, none of the land within the Port Ludlow MPR should be deemed “forest land” subject to the Forest Practices Act.

Q14. Does RCW 76.09.240(6)(a) allow Jefferson County through the Development Agreement and MPR Code to: 1. Restrict CTH to residentially zoned land with a Class IV General FPA, and 2. Prohibit CTH within the MPR-OSR zone, by designating where the CTH can occur, not how as under the Forest Practices Act?

This question, like several others in the county’s list, is phrased strangely. In the first place, “Jefferson County” is not restricting commercial timber harvesting within the MPR. Those restrictions were contractually agreed to by PLA’s predecessor-in-interest (Pope). Furthermore, for the reasons set forth in our July 20 letter, there should be no non-conversion timber harvesting within the MPR and no timber harvesting at all in the MPR-OSR zone, and the MPR should not be deemed “forest land” subject to the Forest Practices Act.

Q15. Does the Jefferson County Comprehensive Plan on Master Planned Resorts (pages 3-23 and 3-64 thru 3-66) and specifically LNP 23.6 and LNP 24.9, preclude CTH as incompatible with these Goals and Policies?

It would be an overstatement to say that policies LNP 23.6 (”Support efforts to preserve and protect Port Ludlow’s greenbelts, open spaces and wildlife corridors”) and 24.9 (“The MPR shall contain sufficient portions of the site in undeveloped open space for buffering and recreational amenities to help preserve the natural and rural character of the area. Where located in a rural area, the master planned resort should also be designed to blend with the natural setting and, to the maximum extent practical, screen the development and its impacts”) by themselves “preclude” commercial timber harvesting, but those polices certainly support the conclusion that commercial timber harvesting should not be deemed an impliedly permissible use despite the explicit language in the MPR zoning code saying that uses not listed are not permissible.

Q16. Can CTH be considered a land use similar to commercial agriculture?

This question is too vague to be useful in any analysis. “Similar” in what way or for what purpose? The county’s zoning laws have different zoning classifications for “commercial forest” (JCC 18.15.020(2)(a)) and “commercial agriculture” (JCC 18.15.020(1)(a)) land uses.

Q17. Could Section 2.20 of the MPR Code, which states, “nor shall any land or structure be used, or arranged to be used for any purpose other than that which is included among the uses listed in the following chapters…” apply to CTH as a “land use for any purpose?”

This question, like several others, is phrased peculiarly. The purportedly quoted phrase “land use for any purpose” does not appear in MPR Code § 2.20. The actual language in the MPR Code is that “nor shall any land . . . be used for any purpose other than that which is included among the uses listed . . . .” Given the statutory requirement and the county commissioners’ finding that the MPR land is better suited for resort purposes than for commercial timber harvesting, it seems obvious that commercial timber harvesting was not intended to be an impliedly permissible use notwithstanding the language of MPR Code § 2.20.

Q18. Is CTH a permitted use under section 3.102 of the MPR Code?

No, commercial timber harvesting is not listed as a permissible use in MPR Code § 3.102, and for the reasons set forth in our July 20 letter it cannot be considered an impliedly permissible use (unless the land is being cleared for the purpose of residential development). [Note that MPR Code § 3.102 relates to the MPR-SF zone, not the MPR-SFT or MPR-OSR zones that were the subject of the county’s May 7 letter to PLA.]

Q19. Does the fact that MPR Code Section 3.106 Commercial Forest Land Buffer exist to buffer the residential uses from forest land use, preclude “clear cutting” of the MPR-SF zone for commercial gain, especially considering #4, which states, “Natural vegetation and forested areas shall be maintained in a native state, but may be managed to ensure healthy reforestation and avoid hazards to life or property”? And wouldn’t the word “may” imply permission?

MPR Code § 3.106 addresses the setback (buffer) requirements for new developments on property in an MPR-SF zone that is adjacent to land designated as “Commercial Forest” and modifies certain of the setback requirements imposed by the county’s Forest Lands Ordinance. Item 4 in that list of modified requirements refers to maintenance of natural vegetation and forested areas within the required “buffer or setback” area. It does not in any sense give “permission” for any activity outside of the setback area. In this connection, note that MPR Code § 1.40 (JCC 17.05.050) states that in the event of any overlap between the MPR Code and the county’s Forest Practices Ordinance (or any overlap with other ordinances or regulations), “the most restrictive and/or protective standards shall apply.”

Q20. Would CTH or “clear cutting” the forest be considered “low impact,” or serve “to promote or enhance the aesthetic qualities of the MPR” as described in Section 3.701 Purpose of the MPR-OSR zone of the MPR Code?

No objective observer or reasonable person would characterize clear-cutting a forest as being “low impact” or as serving “to promote or enhance the aesthetic qualities of the MPR” within the meaning of MPR Code § 3.701.

Q21. Does the Opinion Letter agree with PLA’s attorney that “the right to grow and cut trees is an inherent right of land ownership, not something that must be granted by a zoning code……

Commercial timber harvesting is no more an “inherent right of land ownership” than any other use of land, such as operating a steel mill, a cattle feedlot or a strip mine. Moreover, PLA’s predecessor-in-interest (Pope) gave up any such purported “inherent right of land ownership” when it voluntarily entered into the Development Agreement with the county and agreed to the land use restrictions set forth in the 14

MPR zoning code incorporated in that Agreement. In exchange for agreeing to those restrictions, Pope received (i) the right to build higher-density housing than would otherwise have been allowed and (ii) the certainty of knowing what development standards would be in effect for the MPR for the next 20 years (subsequently extended for five more years).

Q22. JCC Chapter 17 governs the Port Ludlow MPR. JCC 17.05.090, text within that MPR Code, states that only those uses listed as permitted in the various land use districts are allowable. Timber harvest is not listed as a permitted use in any land use district. Is this language sufficient to prevent other uses, especially Review the de Sa e Silva letter and comment on his legal positions

This issue is addressed at pages 7-8 of our July 20 letter to you. Our July 20 letter also addresses the other arguments made by Mr. de Sa e Silva in his letter of May 19.

Q23. The Jefferson County land use code (JCC18) does not list timber harvest as an identified land use in the use table (3-1). However, “unnamed agricultural and forestry uses” are listed. Would it be advisable to list “timber harvest” so we could be clearer as to what zones allow timber harvest and any conditions that apply?

This question does not address the legality or illegality of PLA’s recent timber harvesting within the MPR, but whether the county’s land use code should be amended for future guidance. As a general proposition, it is probably helpful to planners, developers and property owners to clarify areas of uncertainty. But there is no legitimate basis for uncertainty as to whether non-conversion commercial timber harvesting is permissible within the Port Ludlow MPR. 

Q24. The MPR code is silent on enforcement. Can the County utilize JCC 18.50 against an alleged violator of the MPR Code in light of the text of Sections 3.13 and 4.4.1 of the Development Agreement?

Yes, of course. This issue is addressed at pages 11-12 of our letter to you dated July 20. The applicable penalties under JCC Chapter 18.50 are addressed in our July 20 letter at pages 12-17.

Q25. Is it your understanding or experience that other counties, have as one of their listed uses in their Use Table (if they have a use table) any use that would be considered commercial timber harvesting, for example, “timber harvesting,” or “forestry” or “forestry practices?” This goes to whether the county would be unusual or unorthodox if it decided to add such a use to its use Table found at Table 3-1 of Title 18 of the Jefferson County Code.

This question is addressed to “your understanding or experience” with respect to other counties. We have no comment about that subject, other than the general observation that it is probably helpful to planners, developers and property owners to clarify areas of uncertainty.

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