PLA Lawyer to DCD Director: 5/19/15

Davis Wright Tremaine LLP  Suite 2200

1201 Third Avenue Seattle, WA 98101-3045

Marco de Sa e Silva 206-757-8024 tel 206-757-7024 fax

May 19, 2015


Carl Smith, Director, Department of Community Development                                   Jefferson County                                                                                                               621 Sheridan Street                                                                                                         Port Townsend, WA 98368

Re: Letter dated May 7, 2015, to Diana Smeland of Port Ludlow Associates LLC

Regarding Tree Cutting in Port Ludlow Master Plan Resort

Dear Mr. Smith:

I represent Port Ludlow Associates LLC (“PLA”). I am writing in response to your letter dated May 7, 2015, to Diana Smeland of PLA. I would like to offer for your consideration the following:

  1. PLA Disclosed PLA’s Tree Cutting Plans to Jefferson County and the Public on Multiple Occasions Before Commencing the Work, Jefferson County Did Not Object Until Much of the Work Was Complete, and PLA Immediately Stopped Work Upon Receipt of County Objections.

Commencing in December 2014, PLA and the Washington State Department of Natural Resources repeatedly told Jefferson County and members of the Port Ludlow community that PLA intended to cut its trees. See Attachment No. 1 to this letter for a description of at least some of the relevant meetings and other communications.

Notwithstanding that Jefferson County had actual and constructive knowledge that PLA intended to cut its trees, the County did not notify PLA that the County believed the tree cutting to be unlawful until April 3, 2015, approximately five months after the County first learned of PLA’s plans, and after much of the tree cutting already had been completed.’ As you noted in your May 7 letter, PLA terminated its tree cutting activities immediately after it was contacted by the County. At no time did PLA engage in any land use activity deemed unlawful by the County after the County notified PLA of its position. It would not be fair, under these circumstances, to subject PLA to civil or criminal penalties for its actions, even if tree cutting were unlawful within the MPR-OSR and MPR-SF zones.

Footnote: By April 3, PLA had completed all of the cutting in the area zoned MPR-SF and approximately 10 percent of the cutting in the area zoned MPR-OSR.

  1. Cutting Trees in the MPR Is Not Prohibited by the MPR Code.

PLA owns land within the Port Ludlow Master Planned Resort, where PLA is a land owner, resort operator, and land developer. In the MPR, growing trees is appurtenant to land ownership notwithstanding that the applicable land use ordinance, the MPR Code (Ordinance No. 08-1004-99), does not expressly authorize growing trees, just as it does not expressly authorize growing or cutting flowers, hiking, playing the guitar, or other land uses that are not mentioned in the MPR Code and are not any more appurtenant to vacant parcels of land than they are to single-family residential and other uses of developed land. Jefferson County does not prohibit all land uses that are not expressly named and authorized in the MPR Code.

The right to maintain and harvest trees exists wherever there is a right to grow trees, subject to regulations like the Forest Practices Act, RCW Chapter 76.09, and local regulations like tree protection ordinances. In other words, the right to grow and cut trees is an inherent right of land ownership, not something that must be granted by a zoning code in order to exist, even though it is subject to government regulation and neighborhood covenants that may expressly restrict how the right may be exercised.

  1. Cutting Trees in the MPR Is a Legal Pre-Existing Nonconforming Use.

PLA and its predecessors have been growing and cutting trees, both in connection with and without regard to land development activities within its real property in the MPR, for over one hundred years. The MPR Code provides at Section 2.40, “Existing legal non-residential uses are valid land uses in all zones of the Master Planned Resort and shall comply with Comprehensive Plan policies LNP 8.1-8.11 on non-conforming uses.” If cutting trees in the MPR is a nonconforming use, then under Section 2.40 cutting trees is a legal nonconforming use because it predates the 1999 adoption of the MPR Code.

  1. Jefferson County Does Not Have Authority to Regulate Forest Practices Unless It Has Taken that Authority from the DNR as Provided at RCW 76.09.240.

Jefferson County does not have legal authority to regulate forest practices within the MPR. The Forest Practices Act provides at RCW 76.09.240 in relevant part as follows (emphasis supplied):

(2) Before a county, city, or town may regulate forest practices under subsection (1) of this section, it shall ensure that its critical areas and development regulations are in compliance with RCW 36.70A.130 and, if applicable, RCW 36.70A.215. The county, city, or town shall notify the department and the department of ecology in writing sixty days prior to adoption of the development regulations required in this section. The transfer of jurisdiction shall not occur until the county, city, or town has notified the department, the department of revenue, and the department of ecology in writing of the effective date of the regulations. Ordinances and regulations adopted under subsection (1) of this section and this subsection must be consistent with or supplement development regulations that protect critical areas pursuant to RCW 36.70A.060, and shall at a minimum include:

  • Provisions that require appropriate approvals for all phases of the conversion of forest lands, including land clearing and grading; and
  • Procedures for the collection and administration of permit and recording fees.

(3) Activities regulated by counties, cities, or towns as provided in subsections (1) and (2) of this section shall be administered and enforced by those counties, cities, or towns. The department shall not regulate these activities under this chapter.

Only if the County had followed this statutory process would the County and not DNR have jurisdiction to regulate forest practices within the MPR. In this case, the DNR issued two decisions (FPA/N Nos. 2613316 dated 12/19/14 and 2613456 dated 3/12/15) authorizing PLA’s tree cutting activities within the MPR. Based on the issuance of those decisions and the fact that the County has not challenged the authority of the DNR to issue the decisions, PLA believes that the DNR has sole jurisdiction to regulate forest practices within the MPR. Unless the County can show that it divested the DNR of this authority using the statutory process, under RCW 76.09.240 the County has no legal authority to regulate forest practices within the MPR.

  1. UDC Does Not Govern Enforcement of Development Standards in Port Ludlow Master Plan Resort.

The UDC does not govern the enforcement of the MPR Code. The development and use of all real property owned by PLA within the MPR is governed by the Port Ludlow Development Agreement and its development standards. The development agreement provides at Section 3.13, “To the extent this Agreement does not establish standards or requirements covering a subject, element or condition, then the development approval sought shall vest to and be governed by the County codes, regulations and standards in effect upon the date of the future application.”

First, this reference to other codes, regulations, and standards appears to apply only to development approvals, not code enforcement. But second, and more important, the development standards that are incorporated within the Port Ludlow Development in fact do include code enforcement provisions — many of them. See, e.g., Section 6 (Enforcement) of the Stormwater Management Ordinance (Ordinance No. 10-1104-96, Appendix C to the PLDA), or Section 13 (Legal Provisions) of the Interim Critical Areas Ordinance (Ordinance No. 14-0626­95, Appendix D to the PLDA), or Section 15 (Legal Provisions) of the Subdivision Ordinance (Ordinance No. 04-0526-92, Appendix E to the PLDA), or Section 9 (Legal Provisions) of the Shoreline Management Master Program (Appendix F to the PLDA).

The Port Ludlow Development Agreement does establish development standards governing governmental enforcement and remedies, and therefore under Section 3.13 of the development agreement the County may not look outside the development agreement — to the UDC — for those provisions.

  1. If UDC Enforcement Provisions Did Govern, They Could Not Be Used for the Benefit of South Bay Community Association.

The County has proposed that PLA contribute $20,000 or more toward the cost of improvements benefiting the South Bay Community Association (“SBCA”). The SBCA is a worthy community organization, and PLA has provided significant support to it in the past and likely will do so in the future, but PLA does not believe the County has legal authority to make this demand. Even if the UDC governed the County’s enforcement of the MPR Code — which PLA does not concede — this part of the County’s proposal would be prohibited by JCC 18.50.030(1) (“Provisions of this UDC will be enforced for the benefit of the health, safety, and welfare of the general public and the environment and not for the benefit of any particular person or class of persons”).

  1. If UDC Did Govern, It Would Not Authorize the Assessment of Penalties Equal to PLA’s Economic Benefits Because Clearing of Trees Was Not Conducted in Riparian Corridors, Wetlands, or Their Buffers.

Even if the UDC did govern the County’s enforcement of the MPR Code, it would not authorize the County to assess penalties “equivalent to the economic benefit that the violator derives from the violation” because this authority arises only when the clearing of vegetation and trees occurs in riparian corridors, wetlands, or their buffers. See JCC18.50.110(1)(e). PLA understands that the County will contend that there is another way in which this code provision can be interpreted, but only PLA’s interpretation of this code provision is consistent with the stated intent: that it address “violations causing significant damage.”

  1. If UDC Did Govern, and if County Had Authority to Assess Economic Benefits, Calculation of Economic Benefits Gained by Sale of Timber Would Have to Take Into Account Diminution in the Value of the Real Property from Which the Timber Was Removed.

Even if the UDC did govern the County’s enforcement of the MPR Code, and even if the County were authorized to assess penalties equal to PLA’s economic benefits, the County would be required to take into account the diminution in the value of PLA’s property caused by the removal of timber. That diminution in value has not been calculated by PLA, but it is significant. It is impossible to cut and remove trees from real property without significantly reducing the value of the land.

  1. PLA Requests Dispute Resolution as Required Under Section 4.11 of the Port Ludlow Development Agreement.

The Port Ludlow Development Agreement, including the MPR Code and other development standards incorporated within that agreement, governs permitted land uses and regulatory standards for all PLA real property within the MPR but does not prohibit PLA’s recent tree cutting activities. Your letter of May 7 and this response constitute a dispute between PLA and the County relating to the Port Ludlow Development Agreement. That dispute is subject to the dispute resolution provisions of the agreement.

Section 4.11 of the Port Ludlow Development Agreement provides as follows: 4.11 Dispute Resolution/Mediation: In the event of any dispute relating to this Agreement, all parties upon the request of any other party shall meet within the five (5) business days to seek in good faith to resolve the dispute. The County shall send a department director or the qualified lead planner (Section 1.50 of Appendix A) and other persons with information relating to the dispute, and PLA shall send an owner’s representative and any consultant or other person with technical information or expertise related to the dispute. If the parties are unable to reach an amicable resolution of a dispute within fourteen (14) days of the written notice of dispute issued by one of the parties, the parties agree that they will immediately identify a mediator and participate in mediation in good faith. The selected mediator shall have documented experience and expertise in Washington land use law. The mediation shall be completed within 60 days of the original written notice of dispute by one of the parties. The parties agree to work cooperatively to select a mediator with land use and real estate experience. Each party will identify and propose to the other party three potential mediators. Between the proposed mediator lists, the parties will select a mutually agreeable mediator to resolve the dispute. If the parties are unable to reach a resolution following timely mediation, each party reserves the right to seek resolution and pursue remedies available under this Agreement and at law. The parties agree that the cost of mediation pursuant to this paragraph shall be borne equally by the parties to this Agreement.

PLA respectfully requests the opportunity to seek in good faith to resolve the dispute by negotiation with Jefferson County and to mediate a resolution if negotiation is unsuccessful.

My client and I are looking forward to resolving this matter with you at your earliest convenience.

Sincerely yours,                                                                                                               Davis Wright Tremaine LLP                                                                                         Marco de Sa e Silva

  • David Wayne Johnson, Jefferson County Department of Community Developmentcc:
  • David Alvarez, Jefferson County Deputy Prosecuting Attorney
  • Diana Smeland, PLA


Description of Notices of PLA’s Tree Cutting Plans
to Jefferson County and Port Ludlow Community

  • 12/8/14  Met with Shold Excavating and Jefferson County about the Oak Bay site Road Approach
  • 12/18/14  Issued an Access Permit By Jefferson County
  • 12/22/14  Issued DNR Permit 2613316 for Oak Bay Site
  • 1/2/15      Met with the following residents about the Oak Bay Project: Bruce and Inga Bartlett, Todd and Cindy Colebrook, Allan and Nancy Keisler, Richard and Judi Smith, Darrell and Evelyn Fett, and Jim and Mary Ann Bettner
  • 2/2/15      Contacted the South Bay Community Association via email about questions concerning the Teal Lake Logging Site
  • 2/3/15      Contacted Michelle Mattoni (94 Red Cedar) about questions concerning the Teal Lake Logging Site
  • 2/3/15      Contacted Elizabeth Bloch (333 Woodridge Drive) about questions concerning the Teal Lake Logging Site
  • 2/5/15      Attended PLVC Meeting and discussed Oak Bay & Teal Lake Logging Sites
  • 2/13/15     Attended SBCA Monthly Social to discuss Teal Lake Logging Site
  • 3/6/15       Met with Bill Emerson (Woodridge) about upcoming Teal Lake Logging site
  • 3/12/15      Issued DNR Permit 2613456 for Teal Lake site
  • 3/13/15      Met with Nicole and Dave Ditzler about upcoming Teal Lake Logging Site
  • 3/18/15      Met with Nicole about Teal Lake Logging Site
  • 3/29/15      Met with Robin & Dave Ditzler about Teal Lake Logging Site
  • 3/31/15      Met with Robin Ditzler about Teal Lake Logging Site
  • 4/2/15        Met with Robin Ditzler about Teal Lake Logging Site

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