Ad Hoc Committee Chairs to Patrick Schneider, outside attorney hired by County: 7/20/15
Patrick – David Alvarez of Jefferson County has invited me to provide you with my thoughts concerning the issues about which the county has asked for your opinion. I am unsure what background information has already been provided to you, so let me apologize in advance if I am repeating what you have already been told. In addition to describing the nature and background of the issues, I will try to explain how and why I am involved. Please let me know if there is additional information that you think might be helpful to your analysis, or if there are additional documents that you would like to have.
Port Ludlow was developed in a somewhat disjointed way over several decades. As a result, the organic documents for different parts of the development were created at different times, under different sets of laws, and in some respects do not seem to mesh together smoothly to form a coherent plan of development. The Port Ludlow community is divided into two main areas, known informally as the “North Bay” and the “South Bay.” The North Bay was generally developed earlier than the South Bay. There is a “master” homeowners association for the North Bay, known as the Ludlow Maintenance Commission (“LMC”), that among other things owns and manages common facilities including a clubhouse and swimming pool. In the South Bay area there is a “master” homeowners association called the South Bay Community Association (“SBCA”), which owns and manages common facilities for the South Bay including its own clubhouse and pool, and there are separate smaller “villages” each having its own “village” homeowners association. There is also an entity called the Port Ludlow Village Council (“PLVC”), which owns no facilities but whose function is to foster communication and coordination of various activities within the overall Port Ludlow community.
Port Ludlow was the first, and until recently the only, “master planned resort” (MPR) established under RCW 36.70A.360 (dealing with new resorts) or .362 (dealing with existing resorts). Those provisions of the Growth Management Act allow counties to provide for urban growth outside of designated urban growth areas by establishing a new or existing “master planned resort” if certain criteria are met. One of those criteria is that “the county includes a finding as part of the approval process that the land is better suited, and has more long-term importance, for the master planned resort [or, in RCW 36.70A.362(3), “for the existing resort”] than for the commercial harvesting of timber or agricultural production.” RCW 36.70A.360(4)(c). Jefferson County adopted a new comprehensive plan in 1998 to comply with the Growth Management Act and designated Port Ludlow as a “master planned resort” under RCW 36.70A.362. As part of the approval process for the new comprehensive plan, the county commissioners adopted a resolution (No. 72-98) entering findings supporting the various components of the comprehensive plan, including findings stating that Port Ludlow “meets the criteria for existing master planned resorts codified as RCW 36.70A.362” (MPR Finding No. 15) and 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” (MPR Finding No. 16). The following year the county adopted an ordinance (No. 08-1004-99) establishing development regulations for the Port Ludlow MPR (“the MPR zoning code”).
In 2000 the resort developer (Pope) entered into a Development Agreement with Jefferson County, setting forth development standards for further development within the Port Ludlow MPR during the term of the agreement (20 years, subsequently extended for another 5 years). The agreement incorporated, and attached as appendices, the MPR zoning code, the 1998 findings of fact, and existing ordinances dealing with such issues as stormwater management, critical areas, procedures for review and approval of land use applications, and shoreline management. The parcels involved in the present dispute are classified under the MPR Zoning Code as either “MPR-OSR” (master planned resort – open space reserve), “MPR-SFT” (master planned resort – single family tract), or “MPR-RA” (master planned resort – recreation area). Commercial timber harvesting is not listed as a permissible use under any of those classifications, nor under any other zoning classification within the MPR. In 2001 Pope sold and assigned all of its property and interests in the MPR to a privately owned entity named Port Ludlow Associates, LLC (“PLA”).
Last year the owner (Guise) of an approximately 5-acre parcel within the boundaries of the MPR that was not owned by Pope when the Development Agreement was entered into (and therefore was not subject to that Agreement) logged the trees on his parcel, which was zoned MPR-SFT. Shortly thereafter PLA clear-cut (harvested timber) on about 38 acres of forested land near the Guise parcel, also within the MPR and zoned MPR-SFT. Neither Guise’s nor PLA’s logging was for the purpose of converting the land to another use, residential or otherwise. Guise and PLA did not seek or obtain a permit from the county for the logging. Both Guise and PLA did, however, obtain approvals for the timber harvests from the Washington Department of Natural Resources under the Washington Forest Practices Act, RCW ch. 76.09 (the “FPA”). DNR says it did not, and was not required to, consider local zoning laws before granting the FPA permits. Note, however, that RCW 36.70A.103 provides that “State agencies shall comply with the local comprehensive plans and development regulations and amendments thereto adopted pursuant to this chapter except as otherwise provided in RCW 71.09.250(1) through (3), 71.09.342, and 72.09.333.” Among the legal issues involved in the present dispute are (i) whether land within the MPR constitutes “forest land” within the meaning of and subject to the FPA (compare the definitions of “forest land” set forth in RCW 36.70A.030 and RCW 76.09.020(15)), (ii) if so whether the FPA does or does not trump the county’s zoning laws (compare RCW 36.70A.103 and RCW 76.09.240), and (iii) whether PLA is nevertheless subject to the county’s zoning ordinance by virtue of the Development Agreement.
PLA also logged trees on land it owned within the MPR zoned MPR-RA, near the Port Ludlow Golf Course owned by PLA. This logging is sometimes referred to as the “Cameron Drive/Argyle Lane” logging. In addition, PLA harvested about two acres (according to the DNR estimate) of trees near the Timberton Loop trail in an area zoned MPR-OSR. DNR has said no approval was needed under the FPA for the Cameron Drive/Argyle Lane logging but that PLA should have obtained approval from DNR for the Timberton Loop trail logging. Finally, this spring PLA started harvesting timber on forested land in another tract within the MPR zoned MPR-OSR.
At a meeting of the Port Ludlow Village Council on April 2, I asked PLA’s president Diana Smeland whether PLA had obtained a legal opinion as to whether the logging that PLA had started doing in the MPR-OSR zone was permissible, since it appeared to me that commercial timber harvesting was not permissible under that zoning classification. She replied that it was not necessary to get a legal opinion, because she had worked for years in the forestry industry and knew how to read the applicable rules. Also present was David Johnson, the county’s designated “lead planner” for Port Ludlow in the Department of Community Development (“DCD”), so I asked him to check on whether the logging constituted a zoning violation. The next day he notified PLA that the logging was not permissible, and a few days later he issued a stop-work order. I subsequently asked him to look into whether the logging done earlier in the parcels zoned MPR-SFT was also a violation, for essentially the same reasons. On May 7 the county sent letters to Guise and PLA notifying them that the logging in the SFT parcels as well as the OSR parcels was in violation of the zoning ordinance, and proposed certain remedies. On May 12 the county sent a similar letter to the logging contractor (Cedarland) who did the logging for both Guise and PLA. On May 19 PLA, through its counsel Marco de Sa e Silva at Davis Wright, responded to the county’s May 7 letter by arguing that the logging was not subject to the county’s zoning ordinance and was not in violation of it, and invoked the dispute resolution mechanism of the Development Agreement, which calls for negotiation and mediation of any dispute prior to commencing litigation. It is my understanding that the county was poised to issue a letter to PLA about the Cameron Drive/Argyle Lane logging and the Timberton Loop logging, but that it put that letter on hold upon receipt of the May 19 letter from Davis Wright.
In addition to the issues about whether the timber harvesting was in violation of zoning restrictions and the visual blight resulting from the logging, there are environmental concerns about the results of the clear-cutting, especially in regard to the parcels zoned MPR-SFT on the north side of Oak Bay Road. Although they are not readily apparent from the road, further up on the parcels are some fairly steep ravines that form seasonal streams that run into Ludlow Creek, a salmon-bearing stream that empties into Ludlow Bay. David Johnson, with the county’s DCD, has expressed concern about the likelihood of degradation of Ludlow Creek as a result of the clear-cutting, in addition to the potential for destabilization of slopes along those ravines when the heavy rains come this fall and winter. In addition, according to an initial report of the Department of Ecology, there was a spill of an estimated 20 gallons of either oil or hydraulic fluid that could reach Ludlow Creek if it is not cleaned up. It is my understanding that soil samples have been taken from the reported site of the spill.
The clear-cut logging within the Port Ludlow MPR, and PLA’s stated intention to do further logging if it is not legally prohibited from doing so, has alarmed and angered many residents. The SBCA, the LMC and the PLVC have each formed an ad hoc committee to deal with the timber harvesting issues. I am the chairman of the SBCA committee. Jefferson County apparently has only one civil deputy prosecutor, David Alvarez. He is probably overworked and understaffed. Understandably, he probably does not relish the prospect of litigation with PLA’s high-powered Seattle law firm. My two fellow committee chairmen and I have requested but been denied the opportunity to participate in the negotiations between the county and PLA, but we have offered to provide the county whatever assistance we can in its ongoing discussions with PLA.
We are pleased that the county has decided to seek your advice on these issues, and we would also like to provide you with whatever assistance we can in connection with your analysis.
Meanwhile, although we have been shut out of the negotiations between the county and PLA, the three committee chairmen have met twice with Randy Verrue, the resident partner of the investment group that owns PLA. The first meeting was held on June 22 and was with Mr. Verrue only. The second meeting was held on July 7 with Mr. Verrue, Mr. de Sa e Silva, and PLA’s president Diana Smeland. A third meeting with Mr. Verrue is scheduled for August 4.
Mr. Alvarez has provided me with a copy of the questions for you that were assembled by county staff. I believe that some of those questions concern tangential issues or red herrings that are not really involved in determining whether PLA’s commercial timber harvesting within the MPR was permissible. Within the next few days I will offer you some of my thoughts about those questions. Meanwhile, attached to this email is a copy of a letter to you from my two fellow committee chairmen and me, explaining our view of the applicable law and our responses to the arguments that have been raised by PLA’s counsel. I hope you will find that letter to be of some value in your analysis of the issues. I would appreciate it if you or Mr. Alvarez would send me a list of the background documents that have been provided to you, so that I can supplement that list if necessary.
Thanks, and please let me know if you have any questions about anything in this email or in the attached letter, or if I can be of any further assistance.