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HEX Decision_PLN51498 RUE_VAR - White RUE and Variance - Rueda Reconsideration Decision (Final, 12.1.22) Decision on Astolfo Rueda’s Request for Reconsideration City of Bainbridge Island Hearing Examiner White Reasonable Use Exception and Variance Nos. PLN51498 RUE; PLN51498 VAR Page 1 of 3 BEFORE THE HEARING EXAMINER FOR THE CITY OF BAINBRIDGE ISLAND In the Matter of the Application of ) Nos. PLN51498 RUE; PLN51498 VAR ) Tom White ) ) For Approval of a Reasonable Use ) DECISION ON ASTOLFO RUEDA’S Exception & Zoning Variance ) REQUEST FOR RECONSIDERATION BACKGROUND The Hearing Examiner issued a decision in this matter on October 11, 2022, granting, with conditions, a request from Tom White (Applicant) for a Reasonable Use Exception (RUE) and a Zoning Variance, related to property at 3935 Lytle Road NE (Nos. PLN51498 RUE and PLN51498 VAR). On October 25, 2022, the Hearing Examiner received a request for reconsideration of the decision from Attorney Joshua Lane, on behalf of neighboring property owner Astolfo Rueda.1 Mr. Rueda’s reconsideration request asserts that the Hearing Examiner erred in determining that the Applicant met his burden to show that the proposal, as conditioned, would satisfy the criteria for RUE approval.2 Specifically, Mr. Rueda asserts that the Hearing Examiner erred by determining that the Applicant met his burden of showing that the proposal would not “pose an unreasonable threat to the public health, safety, or welfare on or off the property” as required under Bainbridge Island Municipal Code (BIMC) 16.20.080.F.7. In support of this assertion, Mr. Rueda suggests that the Hearing Examiner failed to address flooding issues to Mr. Rueda’s property allegedly caused by past and ongoing activities on the Applicant’s properties and failed to adequately address additional flooding issues to Mr. Rueda’s property that may result from the proposed development if not appropriately mitigated. Attorneys Piper Thornburgh and Stephanie Marshall submitted a response to Mr. Rueda’s reconsideration motion on behalf of the Applicant, dated November 10, 2022, arguing: • Mr. Rueda asserts that the proposal would result in additional surface water and stormwater to his property, and he takes issue with the Applicant’s and the previous property owner’s alleged failure to comply with a condition of approval of the 2005 1 The previous day, the Hearing Examiner received a motion for reconsideration from Attorney James Haney, on behalf of the City of Bainbridge Island. The City’s motion for reconsideration is addressed in a separate decision issued concurrently with this decision on Mr. Rueda’s request for reconsideration. Decision on City’s Request for Reconsideration, dated December 1, 2022. 2 In addition to raising this argument for reconsideration, Mr. Rueda adopts the arguments raised by the City in its motion for reconsideration. As noted in footnote 1 above, the Hearing Examiner addresses the City’s arguments in a separate ruling issued concurrently with this ruling. Decision on City’s Request for Reconsideration, dated December 1, 2022. Decision on Astolfo Rueda’s Request for Reconsideration City of Bainbridge Island Hearing Examiner White Reasonable Use Exception and Variance Nos. PLN51498 RUE; PLN51498 VAR Page 2 of 3 RUE. This is not the forum to address alleged compliance issues with a separate permitting decision or Mr. Rueda’s belief that a stream on the property has not been properly maintained. The Hearing Examiner is constrained to consider only what is proposed and not what was approved in the past. The Hearing Examiner did so here and included conditions of approval requiring ongoing maintenance of the stream. • Mr. Rueda’s motion appears to primarily be a disagreement with the relative weight the Hearing Examiner accorded to the evidence. The Applicant’s expert testimony at the hearing established that development of the southern lot would improve and enhance stream and wetland functions. Mr. Rueda had a full opportunity to rebut this testimony at the hearing but failed to do so. The Hearing Examiner properly relied on the Applicant’s expert testimony and the City Engineer’s opinion in determining that the proposal would meet the criterion under BIMC 16.20.080.F.7 because it would not “pose an unreasonable threat to public health, safety or welfare on or off the property.” • The Hearing Examiner concluded that, if additional measures are imposed to ensure that stormwater runoff on the site is managed according to Chapter 15.20 BIMC, and to ensure that any flood management functions provided by the stream and wetland are enhanced, the proposal would not pose an unreasonable threat to the public health, safety or welfare on or off the property. Mr. Rueda appears to argue that compliance with Chapter 15.20 BIMC would not be sufficient to ensure that any flood management functions provided by the stream and wetland are adequately retained or enhanced. This is not the proper forum to attack the efficacy of the City’s development regulations. Applicant’s Joint Response to Motions for Reconsideration, dated November 10, 2022. ANALYSIS Bainbridge Island Municipal Code (BIMC) 2.16.100.C.7 governs motions for reconsideration of the Hearing Examiner’s decision, and provides, “The rules of procedure adopted under BIMC 2.14.030.C.2.b shall allow a party of record to file, within a reasonable period of time specified by such rules, a motion for reconsideration of a recommendation or decision issued by the hearing examiner.” In addition, Section 1.9.4 of the Rules of Procedure for the Hearing Examiner states: Any party of record may file a written request for reconsideration with the Hearing Examiner within ten (10) working days of the date that the Hearing Examiner’s recommendation or decision is rendered. The request shall explicitly set forth alleged errors of law, fact, or procedure, or the discovery of new evidence that was not reasonably available at the time of the hearing conducted by the Hearing Examiner. As set forth above, Mr. Rueda asserts that the Hearing Examiner erred by determining that the Applicant met his burden to show that the proposal, as conditioned, would not “pose an unreasonable threat to the public health, safety, and welfare on or off the property” based on Decision on Astolfo Rueda’s Request for Reconsideration City of Bainbridge Island Hearing Examiner White Reasonable Use Exception and Variance Nos. PLN51498 RUE; PLN51498 VAR Page 3 of 3 ongoing and potential stormwater impacts to his neighboring property. As an initial matter, Mr. Rueda’s claims regarding the Applicant’s and previous property owner’s actions on the property, unrelated to the current proposal, are not properly before the Hearing Examiner as part of the current RUE request. Instead, the role of the Hearing Examiner is to review a proposal for compliance with applicable code criteria and other regulatory requirements. In short, any allegation regarding compliance with conditions of the previous 2005 RUE approval are not germane to the current RUE request and must be addressed in a different forum. The decision approving the current RUE request acknowledged Mr. Rueda’s and other neighboring property owner’s concerns regarding stormwater impacts of the proposed development. The Hearing Examiner ultimately determined that – based on testimony provided at the hearing, the technical reports submitted with the application, and City staff’s analysis – stormwater runoff from the proposed development would be adequately addressed by imposing a condition requiring that the Applicant to submit a final stormwater site plan demonstrating compliance with all applicable requirements of the City’s surface water and stormwater code, Chapter 15.20 BIMC. Mr. Rueda fails to demonstrate legal error based on the Hearing Examiner’s reliance on the City’s regulations to ensure that stormwater impacts of the proposed development would be appropriately mitigated and, therefore, fails to demonstrate that the Hearing Examiner erred in finding that the proposal met the required RUE criteria on this basis. Any issues regarding the efficacy of these applicable stormwater regulations should be brought before the City’s legislative body and are not appropriately before the Hearing Examiner under his limited authority in reviewing the RUE request. DECISION Because no substantive error regarding the Hearing Examiner’s decision has been shown, Mr. Rueda’s motion for reconsideration is DENIED, and the October 11, 2022, decision is affirmed.3 DECIDED this 1st day of December 2022. ANDREW M. REEVES Hearing Examiner Sound Law Center 3 As detailed in the Hearing Examiner’s companion decision on the City’s reconsideration request, which Mr. Rueda adopted by reference as noted above, the City’s request for reconsideration was also denied. See Decision on City’s Request for Reconsideration, dated December 1, 2022.