HEX Decision_PLN51498 RUE_VAR - White RUE and Variance, City Reconsideration Decision (Final, 12.1.22)
Decision on City’s Request for Reconsideration
City of Bainbridge Island Hearing Examiner
White Reasonable Use Exception and Variance
Nos. PLN51498 RUE; PLN51498 VAR
Page 1 of 5
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 CITY’S REQUEST FOR
Exception & Zoning Variance ) 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 24, 2022, the Hearing Examiner received a request for
reconsideration of the decision from Attorney James Haney, on behalf of the City of Bainbridge
Island (City).1 The City’s reconsideration request asserts that the Hearing Examiner erred in
determining that the Applicant had not previously derived a reasonable use of the subject
property: in particular, use of the subject (south lot) property for mitigation plantings required
for approval of a prior 2005 RUE authorizing development on the adjacent 0.66-acre property to
the north.
Specifically, the City asserts that the Hearing Examiner erred by determining that the facts
underlying the Applicant’s RUE application were distinguishable from those underlying
Kinderace v. City of Sammamish, 194 Wn. App. 835, 379 P.3d 135 (2016). In support of its
assertion, the City argues:
• The Hearing Examiner erred in determining that the previous 2005 RUE did not involve a
“joint development” of the 0.66-acre northern parcel and the 0.2-acre parcel that is the
subject of the current RUE approval. Language in the previous RUE application
references both parcels, and the Hearing Examiner’s conclusion that the record did not
firmly establish that the 2015 RUE request involved a joint development of joint use of
the property is incorrect based on the express language of the application. In addition to
the language in the application referencing both parcels, monitoring reports submitted for
the required five-year monitoring plan related to the 2005 RUE mitigation included an
analysis of plantings on the southern parcel.
• The Hearing Examiner erred in determining that the record did not firmly establish that
mitigation on the southern, subject lot was necessary to allow development on the
1 The next day, the Hearing Examiner received a motion for reconsideration from Attorney Joshua Lane, on
behalf of neighboring property owner and party of record Astolfo Rueda. Mr. Rueda’s motion for
reconsideration is addressed in a separate decision issued concurrently with this decision on the City’s
request for reconsideration. Decision on Astolfo Rueda’s Request for Reconsideration, dated December 1,
2022.
Decision on City’s Request for Reconsideration
City of Bainbridge Island Hearing Examiner
White Reasonable Use Exception and Variance
Nos. PLN51498 RUE; PLN51498 VAR
Page 2 of 5
northern lot. Although the earlier proposal changed during the preapplication process to
shift the residence and stream culverting to the northern parcel, the requirement to
mitigate impacts on the stream was not eliminated, and the stream buffer enhancement
was merely relocated from the northern lot to the southern lot. The Hearing Examiner
incorrectly relied on testimony at the hearing that there may have been sufficient area on
the northern lot to support required mitigation. The Applicant’s predecessor chose to
locate a substantial portion of the required mitigation in the stream buffer on the southern
lot and, therefore, the mitigation on the southern lot was necessary for development on
the northern lot.
• The fact that the City did not require lot consolidation or the extension of the “No
Disturbance/Restoration Zone” on the southern parcel as a condition of the 2005 RUE is
not determinative of whether joint development occurred, and the Hearing Examiner
erred by relying on the absence of these conditions. The City’s land use regulations do
not require lot consolidation for establishing a use on an adjacent site, and the absence of
such a requirement or a requirement for a no disturbance/restoration zone on the southern
lot under the 2005 RUE does not negate the fact that the Mr. White currently has a
reasonable use of the southern lot as a mitigation site.
• The fact that no boundary line adjustment was involved in the 2005 RUE is not
determinative of whether the Applicant’s predecessor created the inability to develop the
south lot. The final basis stated by the Hearing Examiner for distinguishing Kinderace
from the current application is that “neither the Applicant nor his predecessor obtained a
boundary line adjustment designed to constrain the property with critical areas
necessitating the need for an RUE.” The City has not accused the Applicant or his
predecessor of purposely engaging in the kind of conduct involved in Kinderace. The
legal effect is the same, however, because the Applicant’s predecessor combined the two
lots for purposes of development and thereby caused the southern lot to become
unbuildable as the mitigation site for the northern lot's development
City of Bainbridge Island’s Motion for Reconsideration, dated October 24, 2022.
Attorneys Piper Thornburgh and Stephanie Marshall submitted a response to the City’s
reconsideration motion on behalf of the Applicant, dated November 10, 2022, arguing:
• The Hearing Examiner thoroughly set forth the reasons why the current application and
the two properties owned by the Applicant are distinguishable from the factual scenario
considered by the Kinderace court, and the City does not present any new arguments
about the application of Kinderace to the current matter. The reasons for the distinction
between the present matter and Kinderace are based on the facts found by the Hearing
Examiner, all of which are supported by substantial evidence.
• There is no record documentation that would put a future owner on notice of the City’s
new claim that the two parcels were consolidated under a single development plan.
There is no evidence to refute the fact that the two parcels owned by the Applicant are
separate and distinct legal lots that have not been consolidated and, therefore, have
individual value as potentially developable parcels. There is also no requirement or
Decision on City’s Request for Reconsideration
City of Bainbridge Island Hearing Examiner
White Reasonable Use Exception and Variance
Nos. PLN51498 RUE; PLN51498 VAR
Page 3 of 5
condition in the 2005 RUE that any use of the subject property would have been required
for development of the north parcel, such that development restrictions on the subject
property should have been recorded against title.
• Neither the Applicant nor his predecessor attempted to manipulate lot lines or parcel sizes
to gain additional development rights, and there is no evidence that development on the
north parcel was made possible by the ability to include mitigation on the south parcel.
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, the City contends in its reconsideration motion that the Hearing Examiner
erred by failing to rely on Kinderace to determine that the Applicant had already derived a
reasonable use of the subject property and would therefore be precluded from obtaining approval
of the current RUE application. The City’s reconsideration motion, in essence, reasserts the
same arguments it raised at the hearing, which the Hearing Examiner considered and addressed
in the decision approving the RUE. The Hearing Examiner has reviewed these same arguments
as presented in the City’s motion for reconsideration and reaffirms his determination that
Kinderace is distinguishable and does not support the conclusion that the Applicant is precluded
from obtaining approval of the RUE request.
Regarding the City’s argument that, like Kinderace, the previous 2005 RUE involved a joint
development of both the adjacent northern parcel and the southern parcel, the Hearing
Examiner’s decision acknowledged that the initial application clearly proposed a joint
development of both parcels. The decision pointed out, however, that – as is common with the
iterative permit review process – the project plans ultimately changed to relocate all of the
proposed development to only the northern lot, with no construction proposed on the southern
lot. The City’s argument that language in the initial application referencing both parcels
conclusively establishes that the prior 2005 RUE involved a joint development of both parcels,
Decision on City’s Request for Reconsideration
City of Bainbridge Island Hearing Examiner
White Reasonable Use Exception and Variance
Nos. PLN51498 RUE; PLN51498 VAR
Page 4 of 5
and therefore precludes a grant of the current RUE request, elevates form over substance and
fails to recognize that the project as approved did not include development on the southern
parcel.
Regarding the City’s argument that mitigation on the southern lot was necessary to allow
development on the northern lot as part of the previous 2005 RUE, the Hearing Examiner’s
decision recognized that mitigation plantings had occurred on the southern lot but noted that,
unlike in Kinderace, the record was unclear as to whether such plantings would have been
required to support the previous development on the northern lot. Due to the lack of clarity on
this issue, the Hearing Examiner conditioned the current RUE approval on a requirement that the
Applicant submit a final mitigation plan demonstrating to the satisfaction of the City, following
third party review, that mitigation for the current proposal would not rely on any mitigation
plantings on the southern lot utilized in relation to the previous RUE approval. This condition
sufficiently addresses concerns raised at the hearing that the mitigation required for the current
proposal overlaps with the mitigation required for the previous 2005 RUE (such that neither
proposal has appropriate or sufficient mitigation).
The City’s argument about the Hearing Examiner’s reliance on the 2005 RUE not requiring
consolidation of the two lots or the inclusion of the southern lot within the “no
disturbance/restoration zone” misses the point. The Hearing Examiner’s decision did not rely on
this fact as determinative of whether a joint development had occurred but, rather, to highlight
that there was no clear indication that the 2005 RUE decision would result in the southern lot
becoming undevelopable in the future. This stands in contrast with the facts underlying
Kindercare, in which the boundary line adjustment “contained an ‘Approval Note’ which stated
that ‘This Request Qualifies for Exemption under SMC 19.20.010. It Does Not Guarantee the
Lots Will be Suitable for Development Now or in the Future.’” 194 Wn. App. at 840.
Finally, the City’s argument about the Hearing Examiner’s reasoning in distinguishing
Kinderace on the basis that “neither the Applicant nor his predecessor obtained a boundary line
adjustment designed to constrain the property with critical areas necessitating the need for an
RUE” is also inapposite. It is not significant to the Hearing Examiner’s decision that no
boundary line adjustment occurred in this matter that created the need for a RUE, or that there
has been no malicious intent on the part of the Applicant or Applicant’s predecessor in creating
the need for a RUE. Rather, the decision in Kinderace reasoned that a RUE would be
inappropriate where, “by design,” a subject parcel’s boundaries were changed to be completely
constrained by critical areas because this would thwart the purpose of environmental regulations.
194 Wn. App. at 840, 844-45. That did not occur here and, therefore, the Hearing Examiner’s
decision determined that Kinderace is also distinguishable on that basis.
In short, the Hearing Examiner determines that the City’s arguments in its motion for
reconsideration are unavailing, and the Hearing Examiner reaffirms his previous determination
Decision on City’s Request for Reconsideration
City of Bainbridge Island Hearing Examiner
White Reasonable Use Exception and Variance
Nos. PLN51498 RUE; PLN51498 VAR
Page 5 of 5
that Kinderace is distinguishable from the present matter as set forth in the decision granting the
Applicant’s RUE application.
DECISION
Because no substantive error regarding the Hearing Examiner’s decision has been shown, the
City’s motion for reconsideration is DENIED, and the October 11, 2022, decision is affirmed.
DECIDED this 1st day of December 2022.
ANDREW M. REEVES
Hearing Examiner
Sound Law Center