Jefferson County is hiring a special deputy prosecuting attorney at the rate of $417 an hour to analyze its position over timber harvesting done by Port Ludlow Associates (PLA) that earlier this year, the county called unlawful.

Patrick J. Schneider of Foster Pepper PLLC of Seattle is expected to give the county a written opinion in about a month on 10 questions related to whether the county has the authority to regulate forest practices within the Port Ludlow Master Planned Resort (MPR), as county officials have said they believe it has.

PLA argues that the county doesn't have any authority over logging and that its timber harvests – which have prompted concern among many Port Ludlow residents – are legal.

The county put a stop-work order on the harvesting in April.

“We need to know from an outside source how strong our position is before we go into a full-blown litigation or if our position is not strong,” said Chief Civil Deputy Prosecuting Attorney David Alvarez. “We feel [Patrick Schneider] would provide a good outside opinion, because he is someone who has represented both sides of this kind of issue.”

Alvarez acknowledged on July 13 that the county did receive a document from PLA recently, but that county officials had handed it back to them.

PLA officials had said they would submit a settlement offer of some sort. Alvarez declined to say what was in the PLA document given to the county.

“We want to continue negotiating without locking anyone into a particular position,” Alvarez said.

In a July 13 email to the Leader, PLA President Diana Smeland said, “We are still in discussions, so I can't comment at this time.”

Smeland was asked what the proposed settlement involved and if she had a comment on the county hiring an outside attorney to review its stance.

“PLA continues to contend that the tree cutting was lawful and that the county had no authority to stop the work on April 3,” Smeland said in a June 15 email.

COMMUNITY

In June, PLA officials declined to allow representatives of the Port Ludlow community to sit in on a first settlement discussion with the county over the controversial logging issue.

The county had asked that Bill Dean of the Port Ludlow Village Council (PLVC), Dave McDearmid of the Ludlow Maintenance Commission and Dave Jurca of the South Bay Community Association be allowed to attend. PLA refused that request.

PLA obtained forest permits through the state Department of Natural Resources for the roughly 38 acres it has harvested so far; it wants to cut a total of 144 acres. That state agency also cited PLA for not obtaining proper permits for 2 acres.

Among the residents’ concerns is that some of the timber was cut from land designated as MPR "open space reserve," which people who purchased property from PLA said they were told could never be cut.

QUESTIONS

In an “engagement” letter dated July 9, attorney Schneider noted that he is giving the county a discount of 15 percent of his normal hourly charge of $490 and will give the county a 15 percent discount on the services of Richard Settle, professor emeritus at the Seattle University School of Law, who is counsel with the firm and typically bills $525 an hour.

Ten questions were outlined in the letter that the firm is expected to answer. That analysis then would be reviewed by Jefferson County commissioners to decide how to proceed, Alvarez said Monday.

The questions involve whether the county has the authority to regulate non-conversion forest practices within the MPR when the forest practices are not on the shoreline; whether the answer to that changes for properties owned by the developer; whether the practices apply to non-platted properties; whether a six-year moratorium applies inside the MPR; whether an open-space plat known as “Wildwood” serves as a buffer between residential parcels and commercial forest activities; and whether PLA attorney Marco de Sa e Silva was correct when he wrote, “The right to grow and cut trees is an inherent right of land ownership, not something that must be granted by a zoning code.... ”

Further, attorneys have been asked to evaluate the county's code, which states that only those uses listed in the code as permitted are allowed in the MPR.

“Timber harvest is not listed as a permitted use in any land-use district. Is this language sufficient to prevent timber harvest and other uses? In this regard, please comment on the de Sa e Silva letter” is another question presented for an answer.

The county says that if the master planned resort code is “silent as to an enforcement mechanism, then what enforcement mechanism would apply if the conclusion you reach is that Title 17 has been violated?”