Suggested Questions to P. Schneider 7/26/15

Suggested Questions for Pat Schneider

           Note: Patrick Schneider is the Seattle Lawyer the County has hired to review                        the Timber Harvesting case. Below lists questions for Schneider created              by the three Ad hoc Chairs of the Timber Harvesting Committees

1. Is PLA bound by the May 1, 2000 Port Ludlow Development Agreement between the County and PLA’s predecessor-in-interest (Pope)?

2. In the Development Agreement Pope agreed to the land use restrictions set forth in Appendix A (the MPR zoning code). Section 2.20 of the code, entitled “Compliance With Regulations Required,” provides that

No structure shall hereafter be erected and no existing structure shall be moved, altered, added to or enlarged, 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 as permitted in the zoning district in which the structure or land is located, nor shall any land or structure be used in an manner contrary to any other requirement specified in this Ordinance.

(Emphasis added). Commercial timber harvesting is not listed as a permissible use on land zoned MPR-OSR (Open Space Reserve), MPR-SFT (Single Family Tract) or MPR-RA (Recreation Area). While activities incident to permissible uses (for example, lawn mowing as incident to home ownership) may be impliedly permissible, is commercial timber harvesting (i.e., clear-cutting of treed parcels for purposes other than to clear the land for a listed permissible use such as residential development) considered incidental to any of the uses listed as permissible for land zoned MPR-OSR, MPR-SFT or MPR-RA?

3. The statement of “Purpose” for the MPR-OSR zoning classification is set forth in Section 3.701 of the MPR zoning code:

3.701 Purpose: The Open Space Reserve zone preserves in perpetuity and enhances the natural amenities around Ludlow Bay, the Twin Islands and other natural areas within the MPR. Uses within the Open Space Reserve shall be low impact and serve to promote or enhance the 2 aesthetic qualities of the Master Planned Resort. No residential or commercial development shall be permitted in the MPR-OSR zone.

In deciding whether clear-cutting for purposes of commercial timber harvesting is an impliedly permissible use in the MPR-OSR zone despite the fact that it is not listed as a permissible or conditionally permissible use in Sections 3.702 or 3.703 of the MPR zoning code, should a court consider that statement of “Purpose” in determining the parties’ intent as to whether such clear-cutting would be allowed on land zoned MPR-OSR? If so, how would a court be likely to rule on that issue?

4. Under RCW 36.70A.362 a county can designate an existing resort area as a “master planned resort” only if certain criteria are met, including that:

(3) The county includes a finding as a part of the approval process that the land is better suited, and has more long-term importance, for the existing resort than for the commercial harvesting of timber or agricultural production, if located on land that otherwise would be designated as forest land or agricultural land under RCW 36.70A.170.

In 1998 the County adopted a new comprehensive plan under the Growth Management Act and designated Port Ludlow as a master planned resort (MPR) pursuant to RCW 36.70A.362. As required by the statute, as part of the approval process the board of county commissioners adopted a finding stating as follows:

16. 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.

Jefferson County Board of County Commissioners Resolution 72-98 (adopting 1998 Comprehensive Plan), Findings of Fact at 22-23 (emphasis added). That finding is included in Appendix B to the Development Agreement. In interpreting the Development Agreement, under Berg v. Hudesman, 115 Wn.2d 657 (1990) and its 3 progeny should a court consider the statutory requirement and the county commissioners’ finding made as part of the approval process for establishing the Port Ludlow MPR in determining whether the parties to the Development Agreement intended to allow commercial timber harvesting (for purposes other than clearing the land for a listed permissible use) as an impliedly permissible use despite Section 2.20 of the MPR zoning code?

5. RCW 36.70A.103 requires state agencies to “comply with the local comprehensive plans and development regulations and amendments thereto adopted pursuant to” the Growth Management Act. If PLA is bound by the land use restrictions set forth in the Development Agreement, and if the timber harvesting in question was not allowed under the Development Agreement nor under Title 17 of the Jefferson County Code, was PLA somehow relieved from complying with those land use restrictions by virtue of DNR’s approval of the timber harvesting?

6. Neither the Development Agreement itself, nor the MPR zoning code incorporated in the Agreement as Appendix A, includes any provisions or mechanisms for enforcement of the land use restrictions set forth in the zoning code. The Agreement does, however, provide in Section 3.13 that “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.” The Agreement also provides in Section 4.4.1 that “The parties acknowledge the County has police powers, contracting authority and other powers granted by the Washington State Constitution and by general law, . . . ” Either 4 pursuant to those provisions or its inherent police powers or under general law, is the County entitled to utilize the enforcement mechanisms and remedies provided by Jefferson County Code Section 17.05.050(8) and Chapter 18.50 to enforce the land use restrictions set forth in the Development Agreement? If so, what are the County’s potential remedies against PLA under JCC 18.50.110(1)(c) – (e), (2), (5) & (6)?

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