HomeMy WebLinkAboutAttorney Correspondence - BLD Letters / Memos - 5/9/2006 JAMES E. HUNGERFO"
ATTORNEY F V E D
P.O.BOX 1191 R E C+
SHELTON,WA 98584 MQY 1 0 9nQ6
Phone: 360/427-5097
FAX: 360/426-5995
A'lAS4N OU.r►ANIVING DEPOT.
May 9, 2006
Kim Vanzwalenburg
Department of Ecology
P. O. Box 47775
Olympia, WA 98504-7775
Re: Montana Reach, Inc. (Jerry Vermillion, President)
Mitigated Determination of Non-Significance
Dear Ms. Vanzwalenburg:
I am responding to a letter that the Department of Ecology sent to Michael MacSems of
the Mason County Department of Community Development dated May 4, 2006. 1 have
been working closely with Jerry Vermillion on this project since August 2005, when we
met with Allan Borden of the Mason County Department of Community Development to
discuss which permit applications would be necessary for the proposed project. We filed
the first applications on September 2, 2005.
Montana Reach, Inc., has had two geo-tech reports, a Habitat Management Plan and an
Amended Habitat Management Plan, to address mitigation measures, prepared and
submitted to Mason County Planning in connection to the proposed project. Greg Jones,
a professional forester, submitted an extensive report to Mason County and met with
Michael MacSems on site to identify the danger trees that need to be removed. I will
attempt to summarize the results of this extensive process in response to your comments,
which are the substance of the May 4,2006, letter.
A. A substantial development permit is not required. This is a project to clear a
building site for a single family residence, improve an old road for use as a driveway to
the building site and remove danger trees along Highway 106. Under RCW
90.58.030(3)(d), "development" is defined to include the construction of structures and
other activities, none of which include tree removal. The only activity included in the
definition of "development" that comes close to applying to this project is "filling".
There will be some filling with on-site material involved in improving the driveway.
However, "substantial development" is defined under RCW 90.58.030(3)(e) as being a
development exceeding $5,000 in cost. The driveway construction will be well below
$5,000 in cost.
B. RCW 90.58.150 does not apply because the proposed project is not a
commercial timber cutting project. It is the removal of danger trees and the clearing of a
building site. The clearing of the building site and improvement of the driveway are
incidental to the construction of a single family residence and therefore are permitted by
RCW 90.58.150. The removal of the danger trees is only a selective cut, not a clear cut,
and when all of the trees within the 200 foot buffer are considered, including trees on the
waterfront side of Highway 106, it is not likely that the danger trees being removed
exceed 30% of the trees within the buffer. RCW 90.58.150 allows selective cutting of
less than 30%of the trees. In any case,this is not a commercial cutting project.
C. You referred to the SMA preferences. In RCW 90.58.020, where the
preferences are listed, priority is given to single family residences, so the clearing and
driveway activities related to the single family residence are consistent with the SMA.
As far as removal of danger trees,the project meets the preferences as follows:
1. Recognize and protect the statewide interest over local interest. The project
area is a stretch of undeveloped land along Highway 106 that has been particularly
susceptible to having trees fall across the highway, taking down the power lines and
blocking traffic. Fortunately none of the falling trees have fallen on cars on the road, but
that continues to be a danger. When the power lines are struck, an extensive area is
blacked out for significant periods of time. I have personal knowledge of this because
my residence is in the area blacked out by the falling trees. It certainly does serve the
statewide interest to remove trees in danger of causing continued hazards to life, traffic
disruption and power disruption to the citizens of this state.
You mentioned potential cumulative impacts. However, this property is one of
the few remaining long stretches of undeveloped land along the South Shore of Hood
Canal. There are few, if any, other properties like it. Most of the 35 acres behind the
project area was logged about 18 years ago, but the trees along the road were left
standing so that these trees are much taller than the trees behind them. This leaves any
danger trees along the road especially susceptible to being blown down over the road and
power lines. Moreover, most of the rest of Highway 106 from Union to Belfair has been
developed on one side of the highway or the other. The lack of houses in the project area
probably accounts for the reason so many danger trees are still standing. If there were
houses in this area, the danger trees would have been removed a long time ago due to the
threat of falling on the houses, as well as the threat to the road, cars, and power lines.
The cumulative impact is therefore insignificant, since there are few, if any, other
properties along the South Shore of Hood Canal that are similar.
2. Preserve the natural character of the shoreline. The natural character of the
shoreline will be preserved due to the replanting and other mitigation measures included
in the Habitat Management Plan and the remaining understory.
3. Result in long term benefit over short term benefit. There will be a long term
benefit to removal of the danger of trees falling on the power lines, the road and possibly
on vehicles.
4. Protect the resources and ecology of the shoreline. Again, the resources and
ecology will be protected by the replanting and other mitigation measures in the Habitat
Management Plan.
The other preferences listed do not apply, since there are no publicly owned areas
of the shoreline involved and therefore there are no recreational opportunities for the
public involved.
D. Your final comment was in regard to slope stability, erosion and
sedimentation. These issues were fully addressed in the geo-tech reports and the Habitat
Management Plan that were submitted to Mason County. Michael MacSems of the
Mason County Department of Community Development made a thorough study of these
and all of the issues involved in this project prior to issuing the Mitigated Determination
of Non-significance. Rather than conduct an independent review of all of the many
reports and studies involved in this eight month long process, we trust that you will have
confidence that the Mason County Department of Community Development, the lead
agency for this project,has done its job appropriately.
Very Truly Yours,
l ;z 0
/James E. Hungerfor
cc: Michael MacSems
Montana Reach, Inc.
JAMES E. HU1vGERFORD ATTORNEY R E C E I VED
P.O. BOX 1191
SHELTON,WA 98584 MAY 3 0 2003
Phone: 360/427-5097
FAX: 360/426-5995 MCCD - PLANNING
May 15, 2003
Bob Fink
Mason County Department of Community Development
P. O. Box 279
Shelton, WA 98584
Re: VAR 2002-00015
Jerry and Donna Vermillion
Dear Mr. Fink:
Jerry and Donna Vermillion have asked me to represent them in further proceedings
under the above referenced variance application. I therefore request that you provide me
with copies of all correspondence and other communications received by the Department
of Community Development in opposition to their application. Copies of correspondence
and other communications should include, but not be limited to, copies of all letters, e-
mails, memorandums, and all information you have in your files on telephone calls
received, including the identity of the callers and substance of the telephone calls. Also,
the enclosed case activity listing for Case #ENF 2002-00326 refers to a complaint
received on December 12, 2002, and several a-mails received as of January 13, 2003, and
I would like copies of those, as well as any other complaints or oppositions received
regarding my clients in reference to the real estate that is the subject of the variance
application.
It is necessary for me to have such copies in order to properly respond to all criticisms
and allegations contained in the communications opposing the application.
Please give me a call if you have any questions. Thank you for your cooperation with
this request.
Sincerely,
I q" p
j Jim Hungerford
cc: Jerry and Donna Vermillion
JAMES E. HUNGERFORD
ATTORNEY
P.O.BOX 1191
SHELTON,WA 98584
360/427-5097
June 15, 1999
Joan O'Neill, Attorney at Law
Dunn, Carney, Allen, Higgins& Tongue
851 SW 6th Ave., Suite 1500 i
Portland, OR 97204-1357
Re: Montana Reach, Inc.
Dear Ms. O'Neill:
This is to acknowledge my receipt of your several letters, including your requests for
copies of documents. This is to let you know that Mr. Vermillion has discontinued my
services in regard to this matter.
Very truly yours,
James E. Hungerford
JAMES E. HUNGERFORD
ATTORNEY
P.O. BOX 1191
SHELTON,WA 98584
360/427-5097
June 10, 1999
Jerry and Donna Vermillion
10237 Kiwa Drive SE
Olympia,WA 98513
Re: Joan O'Neill
Dear Jerry and Donna:
Enclosed is the latest from Joan O'Neill. Please give me a call when YOU return that we
can discuss what response we should make to her.
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Also enclosed are an account statement and an invoice from last month I have deducted
the invoice amount from the account balance.
Si4ace-rely,
i
TV-
im,Hungerford
JAMES E. HUNGERFORD
ATTORNEY
P.O. BOX 1191
SHELTON,WA 98584
360/427-5097
May 12, 1999
John Davenport
3635 Ashworth
Seattle, WA 98103
Re: Jerry Vermillion/Montana Reach, Inc.
Dear Mr. Davenport:
1 am enclosing a copy of a letter I am sending to certain owners at Peb le Cove. Since it
is our understanding that you are the President of Pebble Cove, Inc., we wanted you to be
aware of the contents of the letter.
We are also enclosing two copies of the letter addressed to Jeff and Stgfanie Thomassen.
It is our understanding that Mr. and Mrs. Thomassen own one of the mooring buoys
discussed in the letter, and their relatives own another. We do not have 'n address for Mr.
and Mrs. Thomassen. If you have an address for Mr. and Mrs. Thomassen, would you
please forward the enclosed two copies to them.
Thank you.
Sincerely,
rknHungerford
JAMES E. HUNGERFORD
ATTORNEY
P.O. BO:x 1191
SHELTON,WA 98584
360/427-5097
May 12, 1999
Joni O'Neil
851 SW 6th Ave., Suite 1500
Portland, OR 97204-13 52
Re: Jerry Vermillion/Montana Reach, Inc. ,
Dear Ms. O'Neil: -
I represent Montana Reach, Inc., a company that purchased property from Allan Bell in
Union, Washington, which is near your property. Jerry Vermillion, Prelident of Montana
Reach, Inc., asked me to write this letter.
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There are four mooring buoys that have been place in Hood Canal in fro t of the Montana
Reach property, and it is Mr. Vermillion's understanding that one of th se may be yours.
While Mr. Vermillion is willing to make some accommodations for you, the present
location of the mooring buoys interferes with his plans for use of his property. He plans to
install a floating dock for swimming and dinghies this summer, and he has applied for a
permit for the installation. This letter is therefore to request that you remove or relocate
your mooring buoy by June 1, 1999. Mr. Vermillion will agree to !relocation of the
mooring buoys to an area lying in front of the Montana Reach propert}�, which is shown
on the enclosed map. That area lies between the extended West boundary line of the
Montana Reach property and a line extended due North from the West side of the stairs
that are in the bulkhead of the Montana Reach property.
Mr. Vermillion wants to be a good neighbor and is willing to make several
accommodations for the use of the Montana Reach property. One is all ng the mooring
buoys to be temporarily relocated to the area indicated on the enclosed map. He also
plans on putting in hiking trails in the upland portion of the property and will allow Pebble
Cove residents to use those trails. Further, he has discussed with Mr. John Earhart the
possibility of granting an easement for a well.
Mr. Vermillion is also willing to allow Pebble Cove residents to walk Ion the beach, so
long as you enter the beach on the East side of the creek, rather than W*' ng through the
area where the cabin is located, as has been the practice. Please advise tenants, guests and
longer walk along the
other Pebble Cove members that they should no beach in front of
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the cabin or otherwise go through the cabin area to access the East portion of the beach.
Mr. Vermillion plans to construct stairs on the East side of the creek to facilitate entry
onto the beach at that location. In order to avoid problems with the in urance company,
all of these proposed uses of the Montana Reach property will be subje t to having those
Pebble Cove residents who wish to make use of the property sign a hold harmless
agreement.
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Mr. Vermillion also plans to install a dock from the shore at a future time and is willing to
discuss with the Pebble Cove boaters an arrangement for shared use of tie dock by Pebble
Cove boaters, if the Pebble Cove boaters are willing to contribute h4lf the cost of the
dock. Please let him know if you are interested in such an arrangement.
Some Pebble Cove residents have suggested that the mooring buoys ai e "grandfathered"
under the legal doctrine of adverse possession. However, the water where the mooring
buoys are located is under the jurisdiction of the State of WashiThe
on and adverse
possession does not apply to property owned by a government entity. Department of
Natural Resources has permitting procedures for mooring buoys under the authority of
WAC 332-30-148. Under the procedures, preference is given to the upland owner. The
Department of Natural Resources has not issued permits for any of the mooring buoys
located in front of the Montana Reach property. They are therefore!not permitted or
"grandfathered".
Mr. Vermillion also wanted me to inform you that he has leased the beach to an oyster
company, so please discontinue any harvesting of shell fish from the Montana Reach beach
if you have done so previously. He will be discussing with the oyster company a plan to
possibly reserve a portion of the beach for oyster harvesting by his f"' y and guests and
possibly Pebble Cove residents also, but at this time, no such plan has 1 yet been worked
out. The oysters must be left alone for a period of time to increase maximum productivity
before the oyster company will be willing to agree to such a plan. He will let you know if
such a plan can be developed.
We hope you understand that while Dr. Bell rarely used this property and so seemingly did
not care to what extent Pebble Cove residents also used the property, that will not longer
be the case. Mr. Vermillion and associates do plan to make regular use of the property,
which necessarily means regulated use by anyone else. While Mr. Vermillion is willing to
make several accommodations to the Pebble Cove residents, he hopes that you will also be
willing to cooperate with him in his reasonable requests for his own use of the property.
Please, therefore, remove or relocate the mooring buoy by June 1, 1999, and let Mr.
Vermillion know if you will be interested in participating in a shared dock. Thank you for
your cooperation.
Sincerely,
�Jj ' Hungerford
cc: Jerry Vermillion
DAVID & THERESA KINNEY
2635 109th A NE Bellevue,WA 98004
E8333 Hwy. 106 Union,WA 98592
(425) 827-0765
June 9, 2000 MRMNOTEM
Pam Denton J U u 1,2 2000
Mason County Health Services Iq
PO Box 1666 S
Shelton,WA 98584 HEALTH SEE Y UE
Dear Ms. Denton:
We are writing you today to inform you of a situation that has been brought to our attention, and
one that greatly concerns us as parents and homeowners. Within the last year, the property located
at 8371 East State Route 106 has changed ownership. A family has purchased the land,and has
done extensive remodeling to the "cabin" that was there. This property is adjacent to our
community property. The neighbors are currently involved in commercial oyster harvesting. Their
beach is next to our community beach where our young children swim all summer long.
It has been brought to our attention that they do not have a septic system. Apparently, the sewage
is being dumped into the ground,and the salt water washes it away. This greatly alarms us.
Our home has been in our family for over 11 years. My parents were the first owners, and they were
very cooperative with the water safety issues that occurred over the past few years. They had our
septic system tested and it passed. We were pleased about this,as water quality is of the utmost
importance to us. It sickens me to see that our neighbors do not need to be concerned about water
quality. Their lack of a septic system impacts our safety of the water.
These same neighbors are now in the process of trying to build a very large dock. Their proposal is
SHR 2000-00012, and Alan Borden is the staff contact for that proposal. We do not understand
why they should be allowed to build a dock when,in our opinion, their first priority should be to
properly control their waste water.
We look forward to hearing your thoughts on this issue. Please do not hesitate to call us at the
number listed above. Thank you for your time and consideration.
Sincerely,
t 4WAp4na'
David L. '0� Theresa M. Kinney l
HOSS and WILSON-HOSS
ATTORNEYS AT LAW
RICHARD T.HOSS 236 WEST BIRCH STREET AREA CODE 360
ROBERT D.WILSON-HOSS SHELTON,WASHINGTON 98584 426-2999 FAX 426-6715
July 25, 2001
Jerry Vermillion, President
Montana Reach, Inc.
10237 Kiwa Drive SE
Olympia, WA 98513
Re: O'Neill
Dear Jerry:
Enclosed is excerpt from a drawing performed by Agate Land Surveying
which shows the common line setback as set out under the use regulations of
Chapter 7.16.080 of the Mason County Shoreline Master Program.
The main issue of concern to Joan O'Neill is the remaining white canopy
located adjoining your common boundary line. I understand that you have plans for
replacing the canopy with a permanent garage on the other side of your house. I
respectfully request on Joan O'Neill's behalf that you accelerate your plan and
remove the canopy now.
Your cabin is attractive and the canopy is an eye sore. The canopy interferes
with the O'Neill properties use and enjoyment of their view. A compelling
argument for removal of the canopy and other structures waterward of the common
setback exists, however Joan O'Neill will be satisfied with the removal of the canopy
and future construction respecting the setbacks.
Will you please give me a call or write me a note letting us know about the
status of the canopy? Your cooperation will be greatly appreciated.
Si ely,
Richard T. Hoss
RTH:kkf
cc: Joan O'Neill
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HOSS and WILSON-HOSS
ATTORNEYS AT LAW
RICHARD T. HOSS 236 WEST BIRCH STREET AREA CODE 360
ROBERT D. WILSON-HOSS SHELTON,WASHINGTON 98584 426-2999 FAX 426-6715
April 25, 2001 R E C E I V E D
APR 3 0 2001
Allen Borden, Shoreline Planner MCCD - PLANNING
Mason Co. Department of
Community Development
P.O. Box 578
Shelton, WA 98584
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Re: Montana Reach, Inc. — 8371 E. State Route 106, Union, WA
I
Dear Allen:
Thank you for meeting with me on April 24, 2001 regarding the Montana
Reach, Inc. property located at 8371 E. State Route 106 in Union, Mason County
Tax Parcel No. 32234440000.
As I understand the residential development provisions of Chapter 7.16.080
of the Mason County Shoreline Master Program, the 15-foot setback from the
bulkhead applies to this property. You acknowledged that the subject is located 10
feet 2 inches from the bulkhead according to your measurements.
You stated that the porch was enclosed, and Mason County policy allows for
the enclosure of porches as long as the existing roofline was in place. You also
advised that the property owner applied for and received an after-the-fact building
permit last month, BLD-2001-00190.
The residential development policies of Mason County require that structures
should be designed and located to not significantly block views of adjacent
residences. Residential structures should be located to minimize obstruction of
views of the water from upland areas. "The intent of this policy is to encourage the
retention of views in and through new residential developments." County use
regulations require that in order to preserve aesthetic characteristics, no fence or
wall shall be erected, placed or altered nearer to the water than the building
setback line, unless it is under 30-inches in height.
Residential Development Use Regulation No. 9 clearly addresses the
Montana Reach, Inc. encroachment on the shoreline setback, both with the
residence and the new fence.
.r
Allen Borden, Shoreline Planner
Mason Co. Department of
Community Development
April 25, 2001
Page two
Each shoreline environment has a setback requirement for structures
from the ordinary high water mark. (See chart at end of this section).
Uncovered porches, decks or steps may project into the required
setback area, providing such structures are no higher than 30-inches
above average grade excluding railings required for reasons of public
safety. ...
Under Section 9.A of the Use Regulations, the setback requirements may be
increased in the case of a pronounced curve shoreline or point. The proportionate
setback distances alternate procedure is set out in Section 9.A, which only applies to
increasing setback requirements, not decreasing. Decreasing setback requirements
are set out in a separate section, 9.13 of the 7.16.080 Use Regulations. The adjoining
residents do not infringe on the setback, so the administrator's option to decrease
the setback requirement simply does not apply.
The County must enforce its Use Regulations. Whether or not this property
was granted an after-the-fact permit by the Building Department, your Department
must enforce the Use Regulations according to the plain language of the
regulations, on a fair and consistent basis. If it is the Department's position that
some policy allows the framing in of a covered porch area, please immediately
provide me with a copy of that policy. If it is the County's position that some other
policy exists which modifies the plain language of the residential development
Policies and Use Regulations, please immediately provide me with a copy of such
policy. I first forwarded my request for Department review by letter dated March
26, 2001. May I now have the Department's analysis with respect to the
infringement on setback on the above referenced property?
Si cer y,
Richard T. Hoss
RTH:l1j
cc: Client
HOSS and WILSON-HOSS
ATTORNEYS AT LAW
RICHARD T. HOSS 236 WEST BIRCH STREET AREA CODE 360
ROBERT D. WILSON-HOSS SHELTON,WASHINGTON 98584 426-2999 FAX 426-6715
March 26, 2001 RECEIVED
MAR 3 0 2001
Allen Borden, Shoreline Planner MCCD - PLANNING
Mason Co. Department of
Community Development
P.O. Box 578
Shelton, WA 98584
Re: Montana Reach, Inc. — Ms. Joan O'Neill
Dear Allen:
I did a records request to the Mason County Building Department in
connection with the porch enclosure on the Jerry Vermillion/Montana Reach, Inc.
property located at 8371 E. State Route 106 in Union, Mason County Tax Parcel No.
32234440000. I don't think a shoreline pre-inspection was completed, and I can't
find a permit authorizing the enclosure of the porch.
I understand that Mason County Code, Title 7, Shoreline Management, and
the Shoreline Master Program apply to the Vermillion/Montana Reach, Inc.
property. I believe that the correct classification is urban residential, requiring a
15-foot setback from the OHWM or front of bulkhead. I believe that the Vermillion
addition is within 10 feet from the concrete bulkhead. Drawing a line from the
O'Neill eave to the 15-foot default setback at the edge of the pronounced curve in
the cove adjoining the Vermillion residence shows that a significant portion of the
two canopies, house and addition encroach over the common line setback. I have
sketched these lines on a copy of topographic survey performed for Joan O'Neill by
Agate Land Surveying dated February 9, 2001.
The board fence detail shows that the Vermillion property line fence is 6-feet
tall to within 20.9 feet of the concrete bulkhead, and approximately 20 feet beyond
the common line setback.
Chapter 7.32 of the Mason County Code and the Shoreline Master Program
sets out specific provisions for inspection, enforcement and penalties in the event
Mr. Sid Bechtolt's drawing correctly applies the provisions of Master Program
Section 7.16.080 with respect to this residential development. Once you've had a
HOSS and WILSON-HOSS
ATTORNEYS AT LAW
RICHARD T.HOSS 236 WEST BIRCH STREET AREA CODE 360
ROBERT D.WILSON-HOSS SHELTON,WASHINGTON 98584 426-2999 FAX 426-6715
December 7, 2000
Jerry Vermillion, President
Montana Reach, Inc.
10237 Kiwa Drive SE
Olympia, WA 98513
Re: O'Neill—Montana Reach, Inc./Vermillion
Dear Jerry:
Thank you for your November 25, 2000 letter about Joan O'Neill's concerns
and your Pebble Cove property. I get the feeling a mutually beneficial and
agreeable solution can be reached, and I want you to consider and respond to my
thoughts about drafting such an agreement.
I think the adjoining property owners can enter into an agreement that's
either personal to them or continues on for a specific number of years. All Ms.
O'Neill requires is a personal agreement for a set period of time, say 10 years. The
agreement should describe your property and legal description, Joan O'Neill's
property and legal description, and attach a map showing the fence and the basic
structures.
The agreement should reference your primary concerns and Joan O'Neill's
primary concerns. Joan O'Neill will agree to post notice to any tenants or occupants,
with a map, showing the location of your relative boundaries, alerting her users to
your ownership of the tidelands and shellfish crop, and requesting they respect your
privacy and property. Joan O'Neill's concern has to do with the common line,CSave t
eave setback, that her view not be impacted forward of the common line, and that
you get permits and approvals for additional work. I will point out to her that you
have already received 12 permits in the last 18 months, so it is likely you won't
object to that requirementkRemoving the tent will go a long way to satisfy her view
concerns.`I know she is concerned about the other tent and your plans and schedule
to replace it. Frankly, if you or I looked out our windows and all we saw was white
plastic, we would both wish it were gone. This is a temporary structure, and I
suspect you plan on replacing it with something to match the primary residence,
which is an attractive building, but for the white plastic. I know she would agree to
t
Jerry Vermillion, President
Montana Reach, Inc.
December 7, 2000
Page two
a small, attractive storage area, especially if they covered the shrimp and crab pots.
—1 would like to include a provision for the scheduling of your permanent garage and
workshop on the other side of your residence to give Joan O'Neill assurance the
view blockage will end soon, and to give you assurance she will cooperate with that
project. I can be careful and fair in drafting an agreement along these lines, but
would like both yours and Joan's input before making the attempt.
I wonder whether a mediation approach for any future problems might be
workablo. By the fact of both parties agreeing to this agreement you are indicating
your willingness to be fair and reasonable about solving this set of problems, so a
provision keeping this dispute out of court might be feasible. For example, a local
architect, title company manager, or even, president of the local homebuilders
association or other individual with no bias or prior dealings with either party
might make a good mediator. I use this procedure often, require each party to pay,
say $100 to $250 to the mediator who will then go to the property, interview the
county staff and read whatever letters and exhibits you want to submit.
Alternatively, the American Arbitration Association offers both mediation and
arbitration services. I like to create a mechanism for the fast and inexpensive
resolution of future disputes if agreeable to both parties.
Finally, my brother and I have both enjoyed working with Mark, and I try
and be fair and reasonable in all of my dealings, but in this situation I am
representing only Joan O'Neill. If you wish to have legal advice in connection with
this planned transaction you will have to get it from an independent lawyer. Thank
you again for your November 25, 2000 letter, and I look forward to your prompt
reply.
Sin ely,
Richard T. Hoss
RTH:llj
cc: Joan O'Neill
D UNN, CARNEY, ALLEN, MGGINS & TONGUE
ATTORNEYS AT LAW
851 S.W.SIXTH AVENUE,SUITE 1500
PORTLAND, OREGON 97204-1357
FACSIMILE(503)224-7324
PHOEBE JOAN O'NEILL TELEPHONE(503)224-6440 Direct Dial: (-A03)306-5314
Admiued in Oregon and Washington I
In ernet: ionnQ duIlil ,-arneY com
June 10, 1999
James E. Hungerford, Esq.
P.O. Box 1191
Shelton, WA 98584
Re: Vermillion/Montana Reach, Inc.
Dear Mr. Hungerford:
This is a request that you please send me copies of the basic and public corporate
records for Montana Reach, Inc. filed with a state corporation commissioner. I made a requtcst
to the Washington Secretary of State, Corporation Division, for Montana Reach, Inc. records,
and received a document regarding "Scott's Fruit Warehouse & RV Park, Inc.", wht:yse
president is Jerry Vermillion. Although we have renewed our request for information on
Montana Reach, Inc., we have not received a reply. Since Mr. Vermillion has asked ;he
Pebble Cove owners to consider joining in a dock with Montana Reach, Inc., it is imporrant
for me, at least, to know who the members of the corporation are, as well as the nature :And
purpose of the corporation.
rPoration.
Thank you for your attention to this request.
Very truly yours,
R
Joan O'Neill �� ..,r�.
JON: cis
::ODMA\GRPW ISE\DUNN-CAR.POSr 1.CLIENTS:31796.1
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INDEPENDENT MEMBER OF COMMERCIAL LAW AFFILIATES
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j D UNN, CARNEY, ALLEN, HIGGINS TONGUE
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851 S.W.SIXTH AVENUE,SUITE 15M
PORTLAND, OREGON 97204-1357
FACSIMILE t503)224-7324
PHOEBE JOAN O'NEILL TELEPHONE(503)224-6440 Direct Dial: (503)306-5314
Admitred in Oregon and Washington
In ernet: -
4 � n un_ -carne�y oiz
June 9, 1999
James E. Hungerford, Esq.
P.O. Box 1191
Shelton, WA 98584
Re: Vermillion/Montana Reach, Inc.
Dear Mr. Hungerford:
It is my understanding Mr. Vermillion has said he is going to build a two-car garage
and workshop on the east side of the cabin and that he intends to keep usingthe plastic cabana
next to the cabin until he has the garage and workshop. The county haysI no record of any
application for permits for such structures. At such time as Montana Reach, Inc_ and/or the
VermilIions apply for such permits, please provide me copies, especially!as to any diagrams
that show how he plans to site the structures on his property and where be plans the access
road to the garage. I would appreciate knowing what his time frame is i for completing the
garage and workshop.
It is my understanding that the Mason County approval of the perm�t for the swimming
and dingy float is conditioned upon Montana Reach/the Vermillion' obtaining permits from
the U.S. Corps of Engineers and the Washington State Department of Fish & Wildlife. Please
provide me with copies of any such applications for permits, approvals and environmental
questionnaires. As usual, I will pay ordinary copying costs. Pebble Cove',members have told
me that in addition to the species I listed in my comments, there are Bald Eagle and Osprey in
the woods behind the cove; Gray Whales were sighted this year in this part of the canal; and
there are various kinds of salmon and other fish in the cove. Another person who read my list
told me that flocks of migrating seabirds and ducks from Alaska spend the!winter in the area,
including some of the species I listed in my comments, in particular, Puffins and Barrow's
Goldeneye. Mr. Vermillion is on notice of the extent of wildlife he should include in any
environmental questionnaires he completes in the future.
Ve ly yours,
I
i
Jo 'Neill
JON: cls
::ODMA\GRPWISE\DUNN-CAR.POSTI.CLIENTS:31796.)
i
"INDEPENDENT MEMBER OF COMMERCIAL LAW AFFILIATES
WITH AFF*IATED OFFICES IN MORE THAN 250 CITIES AND 65 FOREIGN COUNTRIES;
L i J
D UNN, CARNEY, ALLEN, MGGINS & TONGUE
ATTORNEYS AT LAW
851 S.W. SIXTH AVENUE, SUITE 1500
PORTLAND, OREGON 97204-1357
FACSIMILE t503)224-7324
PHOEBE JOAN O'NEILL TELEPHONE (503) 224-6440 Direct Dial: (503) 306-5314
Adinrued in Oregon wd Washington In
nternet:Jon CX dunn-carnet/ corn
June 7, 1999
James E. Hungerford, Esq.
P.O. Box 1191
Shcltc,r., WA 9353Y
Re Vermillion/Nfontana Reach, Inc.
Dear Mr. Hungerford:
Based on events of the recent holiday weekend, and a conv Irsation with Mark
Vermillion, I think I need to put Montana Reach, Inc. and the Vermillio�ls, individually, on
notice of what could become claims for damages.
USE OF BUOY
On Friday evening, May 28, 1999, while I was on Pebble Cove property, I asked a
young man who drove through with a truck and boat trailer, and who identified himself as
Mark Vermillion, whether the boat, "Invader", tied up to my buoy was his. He responded to
the effect that it was, but that since my buoy had no permit, it was illegal, and that they could
just use it, and I had no grounds to complain. A young man who works for him was present,
and I commented that he was a witness to that statement.
I explained that the buoy was not on his property and he could plot take it over. I
explained that if he asked permission, and if no one was using it for the weekend, I would be
happy to let him use it, but that he and his father can't just take things.I I was concerned
because they had already moored to another buoy of a Pebble Cove owner;iwith the net result
they broke the chain and basically "took out" the buoy, and because I had already experienced
what I considered "takings" of other of my property by them.
INDEPENDENT MEMBER OF COMMERCIAL LAW AFFILIATES
WITH AFFILIATED OFFICES IN MORE THAN 250 CITIES AND 65 FOREIGN COUNTRIES'
James E. Hun erford g , Esq.
June 7, 1999
Page 2
Please explain to them they don't have the right to just take over my buoy. Even if
they use it with my permission, they do so at their own risk, even if I don't have them sign a
hold-harmless. If they damage it, they are liable for its cost. If you have law or procedures to
the contrary, I am happy to have you send them to me and to stand corrected.
ROAD
A. xist n
In my conversation with Mark Vermillion about the ,ngs" I addressed in
my May 20, 1999 letter to you, I mentioned the road. I had just spent the last few hours
raking road rock out of the corner garden and off the rockery border which Mr. Vermillion
had covered over as part of the road he put in. I pointed this out to Mark Vermillion. He
commented to the effect, "There has always been a road there."
I explained to him there had been a small road over a little corner of Pebble Cove that
had been allowed with permission and which involved reciprocal permissive rights, whereby
we launched our boats into the cove from that road and had access to the beach, the shellfish
and the waters. I explained that his
s father had nprapped the shore, filled ip the area, and told
us not to come on his property without a hold-harmless agreement.
Although I am a trial lawyer and not a real estate attorney, Y
if I recall m bar review
course co
rrectly, permissive use never ripens into an easement of right. It is my understanding
that Pebble Cove documented the permissive nature of the e use some years ago. If it were
otherwise, Pebble Cove would have an easement of right to launch boat , walk the beach,
harvest shellfish, and use its buoys in peace.
It was my understanding that last December, 1998, or January, 19199, Mr. Vermillion
conveyed to some Pebble Cove owners that he planned to put in a road
to the eas
t and off
Pebble Cove property. It was a surprise to me to arrive and find this encroachment. Insofar
as this road is wrongful and causes any property loss or diminished value, I will look to
Montana Reach, Inc. and the Vermillions, individually, for damages.
L J
James E. Hungerford, Esq.
June 7, 1999
Page 3
i
B. Dangerous Conditions Created bYr Vermillion
—r'
i
The road on Pebble Cove property and the Pebble Cove parking lot behind my units are
being torn up by the vehicular traffic and heavy equipment going to and ftom Mr. Vermillion's
property. Large holes are being gouged, an abrupt edge with the shoulder is being created,
and loose gravel/rock is piling up causing uneven and unstable footing.
On Saturday, May 29, 1999, in light of my conversation the evening before with Mark
Vermillion, I told my realtor, Ken Cook, I needed to disclose a potential boundary dispute to
any prospective buyer. This is one of the questions on the necessary disclosure statement. We
were standing on Pebble Cove property, in the parking and road area, and I was pointing out
the problem. All of a sudden, the gravel rock under me moved and I fell.I What had happened
was, I had been standing on gravel/rock shoved to the up-side of one of Jhe pot holes created
by Vermillion and covering the edge of the hole. As I stood on it, it gave way, slipped into
the hole, and I fell. Luckily, all that happened was a nasty bruise on my left hip. However, a
fall like that could cause a broken hip in someone else. If anyone connected with my units is
injured, or if my property value or sale value is diminished because of the wrongful action of
Montana Reach, Inc. and the Vermillions, individually, I will look to them'; for damages.
i
CABANAS
I have not heard from you as to the duration of these structures. Please be on notice
that they have destroyed the eastern views of both my units. They could have an adverse
impact on my ability to sell the units and on the price of the units. If they prove to be placed
there improperly, I will look to Montana Reach, Inc. and the Vermillions, individually, for my
damages.
ATTITUDE
During our conversation, Mark Vermillion commented to the effect that since my
property was for sale, I should not care what they did. Perhaps this was spoken in the "heat of
the moment" and was not an accurate reflection of the Vermillions' attitude. Perhaps, when
they get the above notices of the economic damage their wrongful actions can cause me, they
will understand at least economic reasons why I care.
i
I
I
I
James E. Hungerford, Esq.
June 7, 1999
Page 4
But, above and beyond economics, I am not one who approachOs life with a "Why
should I care'?" attitude. In my opinion, it is caring about others, and about what is right and
what is wrong, and how people, property, animals and the earth are treated, that distinguishes
us as humans and makes the world a good and fruitful place. Whether the units sell, or
whether the Vermillions and I grow old together as neighbors, please explain to them that I
care.
I would like to suggest that a caring attitude on the art of the V p ermlillions would help,
and that they should authorize you, soon, to approach not only me in n effort to reach a
neighborly solution regarding my issues, but also the Pebble Cove Board to work out a
neighborly resolution of the larger problems. Boundary disputes have a way of becoming
bitter, litigious and expensive, quickly. The enclosed letter from Mr. Vermillion, which is in
essence a personal attack on me, is not the way to address these issues.
Very truly yours,
J n 'Neill
JON: cis
0DN1A\GRPWISE\DUNN-CAR.POST LCLIENTS:'_9773.1
1
D UNN, CARNEY, ALLEN MGG INS & TO GUE
ATTORNEYS AT LAW
851 S.W. SIXTH AVENUE, SUITE 1500
PORTLAND, OREGON 97204-1357
FACSIMILE 1503)224-7324
PHOEBE JOAN O'NEILL TELEPHONE(503) 224-6440 Direct Dial: (503) 30 --531.14
AcLnrttrd in Oregon and Washington
tnlernet: jon a dunn-carne,. :on'Al
May 24, 1999
James E. Hungerford, Esq.
P.O. Box 1191
Shelton, WA 98584 i
Re: Vermillion/Montana Reach, Inc.
Dear Mr. Hungerford: ,
I received the environmental check lis
t, three maps, a sketch, and the DNS from Mason
County Building Department. Insofar as the requests in my letter to you of May 20, 1999
included those items, please disregard those r: uest s.
Enclosed please find a courtesy copy of the comments which I have submitted to the
Department pursuant to WAC 197-11-340(c).
Very ly yours,
J 'Neill
JON: CIS
::ODMA\GRPWISE\DUNN-CAR.POST I.CLIENTS:29773.1 ,Al
--i W,
INDEPENDENT MEMBER OF COMMERCIAL LAW AFFILIATES
WITH AFFILIATED OFFICES IN MORE THAN 250 CITIES AND 65 FOREIGN COUNTRIES
D UNN, CARNEY, ALLEN, HIGGINS & T I'NGUE
ATTORNE
YS AT LAW
I
851 S.W. SIXTH AVENUE,SUITE 1
PORTLAND, OREGON 97204-1357
FACSIMILE(503)224-7324
PHOEBE JOAN O'NEILL TELEPHONE(503)224-6440.ldmwed in Oregon Direct Dial: (503) 306-531 1
and Washington
I ternet:J DOdunn- arne com
May 20, 1999
James E. Hungerford, Esq.
P.O. Box 1191
Shelton, WA 98584
Re: Letter of May 12, 1999 to "Joni O'Neil"
Dear Mr. Hungerford:
I am Joan O'Neill, and I am assuming that your letter of May 12, 1999 on behalf of
Jerry Vermillion and Montana Reach, Inc. was meant for me. I am responding on my own
behalf, personally, only, and in no way am I responding as any representative or agent of
Pebble Cove or any other member of Pebble Cove. Your letter was addressed to me because
you understood that I may have an interest in a mooring buoy that Mr. Vermillion feels ". . .
interferes with his plans for use of his property."
i
Your letter speaks to many topics which should be addressed to the 'Pebble Cove Board.
I assume you have sent a letter on those issues to the Chairman. It is not my place to respond
to those items.
MOORING BUOY
Thank you for your citation to the Washington Administrative Code. I certainly don't
want to be in violation of a law, but I do intend to research my rights and contact the
appropriate agencies. I am informed by the Aquatic Lands division of the Department of
Natural Resources that I can apply for a permit for the existing mooring bjuoy. I have begun
the process. I understand it can be lengthy. At this point, I have not beFn informed by 'the
agency that I have to remove it. It has existed a long time. It may even ',predate the present
law. It is possible for it to receive a permit and remain where it is. In any vent, it will not be
moved June 1, 1999.
If you have copies of the permit procedures of the Department of N4itural Resources, to
which you refer in your letter, and if you would be kind enough to send me copies, I will
happily pay your usual copying costs. Since the State issues mooring buo permits, I do not
understand how Mr. Vermillion can "agree" to allow me to move the buoy�to some other spot
on State land, even if "temporary", as indicated in your letter. As an uplaind owner, does he
i
INDEPENDENT MEMBER OF COMMERCIAL LAW AFFILIATES
WITH AFFILIATED OFFICES IN MORE THAN 250 CITIES AND 65 FOREIGN COUNTRIES
i
James E. Hungerford, Esq.
May 20, 1999
Page 2
have the authority to locate mooring buoys for himself or others on State lands without
permits? If so, I am happy to receive copies of whatever procedures grant him this authority.
The anchoring device is a concrete pad that, it is my understandi g, has been there at
least 20 to 30 years. There is an ecological consideration in removing a long-existing
stationary structure in water. These structures become habitat for sea lifcr. Moving them can
be destructive to the underwater habitat and the sea life. Some years ago a diver who explored
around our concrete pad told me it had become habitat for underwater life, including a "giant"
crab. Even if it could be moved, which I doubt, I would want the OK fro7' the Department of
Ecology. The matter is not so simple as your letter suggests.
In addition, as far as I can tell from the sketch you included with Iyour letter, the buoy
in which I have an interest is not in the vicinity of the proposed floating I dock and could not
interfere with its use. If you have a copy of the survey referenced in the sketch, and would be
willing to send me a copy, I will pay the reasonable cost of its reproduction.
FLOATING AND LAND-BASED DOCKS
It seems to me that your request that I remove the mooring buoy,by June 1, 1999 is
based on an assumption that Montana Reach or Mr. Vermillion will, v'ithout question, be
installing a floating dock and then a stationary, land-based dock. Perhaps) it would be best to
wait until Mr. Vermillion actually has each approved permit before assumjng a mooring buoy
must be moved because of its relationship to a floating dock or land-based Bock.
Please send me a copy of Mr. Vermillion's permit application for the floating dock,
including, but not limited to, any documents he submitted in connection with it, such as
design, location, environmental checklists, and any approvals of his submissions and permits.
I understand he has recently submitted an application for a permit for a float under the parcel
number of the "across-the-road" parcel, but that approval has not yet issued. I will pay usual
copying costs.
Please send me the same for any applications he may have made or snakes in-the future
regarding a land-based dock. I will pay usual copying costs. As you may imagine, your letter
resulted in my contacting several governmental agencies. I received the impression from my
calls to involved agencies that such docks are highly disfavored by the authorities, especially
on Hood Canal, and that such permits are rarely, if ever, granted. A major concern seems to
be fish, wildlife, and endangered species. From my limited observations, Pebble Cove teems
with fish at high tide, and is a feeding ground for many seabirds and ducks, especially during
nesting and migration season. I have been amazed at the variety of seabirds and ducks I and
my guests have noted in my bird log during the few years and the few weeks each year I have
James E. Hungerford, Esq.
May 20, 1999
Page 3
been at the canal. I haven't checked to see if any of them are on the endangered species list,
but it wouldn't surprise me, as some were listed in my bird book as declining in numbers.
There are entire flocks of migrating seabirds and ducks that seem to me to have Pebble Cove
as a resting and feeding place on their flight path. I have observed other wild life, such as
seals and otters, including even a river otter, and deer feeding and cavortir}g in the cove.
HOLD HARMLESS
Mr. Vermillion is to be lauded on his interest in cooperating wjith Pebble Cove on
beaches, trails and seafood gathering. However, as a personal inquiry only, and not as an
agent of Pebble Cove, I would like to know if the hiking trails Mr. Vermillion proposes are for
the personal use of his family, which I understand are the owners of Montana Reach, Inc., or
whether Montana Reach contemplates commercial development and use of I the hiking trails? I
would also appreciate a copy of the proposed "hold harmless" agreement individuals must sign
to walk on the beach or trails. Even if a guest of mine signed it as an individual decision, I
would want to make sure it had no ramifications for me as an owner.
"NEIGHBORLINESS" ISSUES
There are some matters regarding Mr. Vermillion's conduct that I had not intended to
mention, but since your letter raises the issue of neighborliness, and since the conduct has the
potential of creating a problem, I think it is appropriate to discuss those it ms now so we can
deal with them in as cooperative a way as possible.
(a) Unauthorized Use of Utilities. Mr. Vermillion hooked up hi'S house and hose to
my hose and outside water faucet. The hose not only obstructed access to ojne of my units, but
the water is Pebble Cove water. Permission should have been requested from Pebble Cove for
the water and from me for use of my property.
I noticed my electricity bills increased dramatically when no one was in my units, and
upon inquiry, I was informed electric cords from Mr. Vermillion's property had been hooked
up to the outdoor electrical plugs on the decks of my units. '
I called Mr. Vermillion to speak about these uses in a friendly mannl' r. I was planning
to work out a voluntary arrangement whereby he could hook up, but that�he would pay the
increased cost. I never got to that point. At first mention of the matters, he denied the uses,
except for saying the water had only been used one day by the plumbers to deck his plumbing,
and perhaps once or twice a worker on his property might have used the electricity to "start his
machine", although my inquiries before I called indicated far more extended use of both water
and electricity. It didn't make sense to me that one could start an electric machine and then just
James E. Hungerford, Esq.
May 20, 1999
Page 4
have it run without using the electricity. However, since Mr. Vermillion absolutely and
outrightly denied anything other than a one day use of water and a very brief use of my
electricity to simply start the machines, I did not pursue the matter further.
I had earlier checked, for informational purposes only, with', the sheriff's office
regarding my rights, and was informed that if, indeed, my electricity and water had been used
without permission, that was "theft of services." The deputy said he would be prepared to have
me make a complaint, but I told him I wished to handle it in a neighborly fashion, as my
neighbor was new and I hoped we could work things out in a friendly fashion. Although that
did not happen, I was not interested then, and I am not interested now in making any criminal
complaint, and I would never involve persons who observed the water hookup and the electric
hookup over an extended period of time in a "swearing match" with r. Vermillion who
denied the same. However, please explain to Mr. Vermillion that he isnot free to use my
utility services, even briefly, and even if I am not present, without my jpermission, nor the
utilities of Pebble Cove without its permission, and that he is responsible for unauthorized use
by his workers.
(b) Unauthorized Use of Personal Property. When I went to use my aluminum
extension ladder which I keep under my porch on the side between my units and
Mr. Vermillion's property, the ladder was missing. I made bold to go upgn Mr. Vermillion's
property and to speak to him, and located the ladder up against his house I incorporated into a
series of ladders that were apparently being used for work on his roof. My husband also
identified the ladder, and we pointed out to Mr. Vermillion that it was n't his. I reclaimed
possession of the ladder and he did not object. However, he claimed he could not be
responsible for whose equipment his workers used. I politely disagree. Not only is he there
most of the time, but even if he is absent, he is responsible for his agents. Please explain this to
him.
Also, my brother could not locate our hose, and he made bold to go to
Mr. Vermillion's property and found our hose rolled up among Mr. Vermillion's possessions. .�
My brother reclaimed it, and Mr. Vermillion did not object. Even if keeping my hose was
unintentional, Mr. Vermillion needs to understand he must respect my property rights as-he
expects me to respect his.
(c) Unauthorized Use of Parkin Areas. The parking area behind my units is
common Pebble Cove parking area, but Pebble Cove members generally try to allocate the use
of parking to the nearby units. This area has been regularly used by vehicles related to the
activities on Mr. Vermillion's property. His vehicles, in relation to my units, not only have
obscured the realtor's sign in the parking area, but caused the realtor to icall me to inquire
whether I had permanent tenants in my units that should be contacted bef6're he showed my
James E. Hungerford, Esq.
May 20, 1999
Page 5
units to prospective buyers! Mr. Vermillion, his workers and guests s ould not use Pebble
Cove parking areas without the permission of the Board.
It appears Mr. Vermillion has put in a road and widened it onto what may be Pebble
Cove property. This is an issue for the Board. However, I would cot�tment that this road
appears to lessen the available parking space on the east side of the parking area behind my
units.
(d) Construction of Cabanas. Mr. Vermillion has constructed two large plastic
white "cabana-like" structures which fill the windows and obliterate the views on the east side
of my property. Since they appear to be temporary structures over building supplies and
machines, I have not said anything. However, as your letter caused me to make inquiry with
the building department, I also inquired about these structures. Please 'tell me if these are
temporary, and if so, their duration. It appears that the structures may be in n violation of certain
building and viewline requirements, whether or not they are of a size to require a building
permit. At this point, I have made no complaint to the building department nor requested an
inspection, on the assumption they are temporary, but I need to know Mr] Vermillion's plans
for these structures.
Ordinarily, if a neighbor were going to construct something life these cabanas, a
neighborly call explaining the necessity and duration of such structures could have been the
expected norm. Absent that, I arrived to find all the east windows of bot my units obscured
by walls of white plastic.
CONTACT WITH MR. VERMILLION
Your letter asks me to respond directly to Mr. Vermillion. Sincq I am an attorney, A"t
although representing only my interests, and you are an attorney representig Montana Reach,
Inc., and Mr. Vermillion is its president, I do not feel I can discuss any of these matters
directly with him. I must confine my communications to you, as a matter of professional
ethics. Daily "chit chat" with Mr. Vermillion is another matter.
DR. BELL'S USE
I must respond to your comment about Dr. Bell. You refer to Dr. Bell "rarely" using
his property. In my experience, Dr. Bell didn't "rarely" use his property,! He seemed to be
there more than I was until the ice storm. He showed my guests the best pl ces for oysters and
clams. I urged him to use the amenities of my units and even offered him the permanent use
of keys so he could have modern conveniences when he was there. However, he loved his
d yed its simplicity,
cabin, which had been in his family since at least the 1920's and he en
i
James E. Hungerford, Esq.
May 20, 1999
Page 6
even when he cut off water and electricity. I and my guests understand the fact his era is no
more. However, it is error to say he "did not care" how his property was used. He took great
joy in sharing its beauty and its history and generations of Pebble Cove inhabitants have shared
their hearts and properties with him.
Very truly yours,
n O'Neill
JON: cls
Cc: John Davenport, Chairman of the Board of Pebble Cove
John Herzog, Member of the Board of Pebble Cove
::ODMA\GRPW ISE\DUNN•CAR.POST 1.CLIENTS:28791.1