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2024 05 06 - BLD18048_ADD - Bainbridge Island - Gerlach Appeal Order Denying Reconsideration Order Denying Reconsideration City of Bainbridge Island Hearing Examiner Gerlach Appeal No. BLD 18048ADD Page 1 of 8 BEFORE THE HEARING EXAMINER FOR THE CITY OF BAINBRIDGE ISLAND In the Matter of the Appeal of ) No. BLD 18048ADD ) Marcus and Suzanne Gerlach ) Gerlach Appeal ) ) ORDER DENYING RECONSIDERATION Of a Building Permit Revision Denial ) I. MOTION On April 22, 2024, the Hearing Examiner issued his decision affirming the City of Bainbridge Island (City) decision of April 4, 2022, to deny the application of Marcus and Suzanne Gerlach (Appellants) to revise Building Permit BLD 18048ADD. On May 2, 2024, the Appellants filed a motion to reconsider, alleging various defects in the Hearing Examiner’s decision, which the Hearing Examiner summarizes as follows: • The Hearing Examiner’s decision was issued more than 10 working days after the close of the hearing on the merits, in violation of Bainbridge Island Municipal Code (BIMC) 2.16.100.C.6.c. • The Hearing Examiner’s decision, which affirms the City’s denial of the Appellants’ proposal to construct a bulkhead, is in conflict with a different hearing examiner decision in a different case, in which a different proposed bulkhead was approved. • The Hearing Examiner failed to rule on the Appellants’ prehearing motion to disqualify himself, in violation of BIMC 2.14.030.F, and did not allow the Appellants to file prehearing motions on the issues of collateral estoppel and equal protection. • The Hearing Examiner’s decision failed to address collateral estoppel and equal protection. • The Hearing Examiner never issued a prehearing order regarding collateral estoppel and equal protection. • The Hearing Examiner’s finding that the Appellants’ proposed bulkhead would extend some 14 linear feet of new concrete bulkhead northward from the northern edge of the boathouse and would extend some linear 45 linear feet of new concrete bulkhead south of the boathouse was not supported by testimony. • The Hearing Examiner’s finding that the boathouse received final sign-off on July 12, 2019, was either incorrect or contradicted by other evidence. In either case, the boathouse was never completed. • The Hearing Examiner erroneously believed the City issued Shoreline Substantial Development Permit 13500. • The Hearing Examiner wrongly assumed that a shoreline substantial development permit would be required for the bulkhead. Order Denying Reconsideration City of Bainbridge Island Hearing Examiner Gerlach Appeal No. BLD 18048ADD Page 2 of 8 • Director Patty Charnas could not have delegated permit approval authority to Building Official Blake Holmes to issue his April 4, 2022, decision because Ms. Charnas did not work at the City at that time. • The Hearing Examiner wrongly excused the City’s 255-day delay in issuing the April 4, 2022, decision. • The Hearing Examiner erred in finding that the April 4, 2022, denial decision met the requirement to state the reason for the denial. II. DISCUSSION The Appellants’ motion does not cite the standards for reconsideration of the Hearing Examiner’s decision. The citations the Appellants provide are to various standards for reconsideration of decisions issued by the Washington State Court of Appeals, superior courts, and adjudicative agencies of the State operating pursuant to the Administrative Procedure Act, chapter 34.05 RCW. Mot. at 2 (citing Chemical Bank v. Wash. Pub. Power Supply, 102 Wn.2d 874, 691 P.2d 524 (1984); Chen v. State, 86 Wn. App. 183, 937 P.2d 612 (1997); Superior Court Civil Rule 59; and RCW 34.05.470). The Bainbridge Island Hearing Examiner is not any of those tribunals. The Appellants provide no argument that standards for reconsideration in other tribunals should apply in this tribunal. The standards for reconsideration that do apply in this tribunal are those set forth in Bainbridge Island Hearing Examiner Rule 12.1. Under that rule, the Appellants must show one or more of the following: a. Irregularity in the proceedings by which the moving party was prevented from having a fair hearing; b. Newly discovered evidence of a material nature which could not, with reasonable diligence, have been produced at hearing; c. Clear mistake as to a material fact. Rule 12.1. With these standards in mind, the Hearing Examiner will turn to each of the alleged defects in his decision. The municipal code sets forth the following decision deadline for the Hearing Examiner: The hearing examiner shall issue a written decision in accordance with BIMC 2.16.020.M.6, within 10 working days of the public hearing, unless a longer period is agreed upon by the hearing examiner and the applicant or appellant. If the hearing examiner and the applicant or appellant agree on a longer period for issuance of the written decision, the examiner shall provide notice of the extension to the applicant or appellant, the city, and any person who testified at the hearing or submitted written testimony for consideration at the hearing. BIMC 2.16.100.C.6.c. Order Denying Reconsideration City of Bainbridge Island Hearing Examiner Gerlach Appeal No. BLD 18048ADD Page 3 of 8 The Appellants are correct that the Hearing Examiner issued his decision more than 10 working days after the close of the hearing. The hearing closed March 29, 2024. The Hearing Examiner issued his decision on April 22, 2024, which is 16 working days later. The Appellants did not consent to a longer than 10-day deadline for the Hearing Examiner’s decision. The Hearing Examiner apologizes to the parties for the delay of six working days in issuing his decision. As the Hearing Examiner told the parties at the close of the hearing, the Hearing Examiner is wrapping up his hearing examiner practice to join the Growth Management Hearings Board in June 2024. As a result, the Hearing Examiner is working through a greater than usual volume of land use decisions, as he also explained to the parties. The Hearing Examiner’s unusual workload has had the unfortunate practical effect of delaying some of his decisions. Even though the Appellants have demonstrated that the Hearing Examiner exceeded the 10-day deadline by six days, they have not demonstrated (or even argued) that this was an “irregularity in the proceedings by which the moving party was prevented from having a fair hearing,” as would be required to grant reconsideration. Nor would granting reconsideration redress the Appellants’ grievance regarding the six working day delay. On the contrary, granting reconsideration on this issue would only prolong the date by which the Appellants would receive a final land use decision from the Hearing Examiner, without changing the substance of that decision. Nor have the Appellants cited any code provisions or other source of law for the proposition that a tardy decision from the Hearing Examiner is “invalid,” as the Appellants claim. The Hearing Examiner will not grant reconsideration on this issue. The Hearing Examiner will also not grant reconsideration in light of any other bulkhead permit decisions issued to other applicants for other projects on other properties by other hearing examiners in other cases. Mot. at 5, 6, 7. Such unrelated bulkhead decisions are immaterial to the question of whether the Appellants’ proposed bulkhead was rightly or wrongly denied. The Appellants are not entitled to a bulkhead simply because other parties have gotten bulkheads. Each bulkhead proposal must be evaluated on its own merits, and, for the reasons stated in the Hearing Examiner’s decision, the Appellants’ bulkhead proposal fails on the merits. The Hearing Examiner will not reconsider his order denying the motion to disqualify himself, issued March 4, 2024. In his March 4 order, the Hearing Examiner explained that his past association with one of the several previous city hearing examiners with whom the Appellants have had a history of disputes does not mean the current Hearing Examiner cannot render a fair and impartial decision. The Hearing Examiner agrees with Appellants that the appearance of fairness doctrine applies to the Hearing Examiner’s proceedings. Mot. at 6. But the Hearing Examiner’s proceeding complied with the appearance of fairness doctrine: It was both actually fair and would reasonably appear fair. The Hearing Examiner has not talked to any previous hearing examiner about any of Appellants’ previous cases involving previous hearing examiners, and indeed would not even have known of the Appellants’ various disputes with multiple Order Denying Reconsideration City of Bainbridge Island Hearing Examiner Gerlach Appeal No. BLD 18048ADD Page 4 of 8 previous hearing examiners if the Appellants had not repeatedly brought up their history of disputes during the current proceeding. See, e.g., mot. at 2 (“This is the third time [the City] used a compromised hearing examiner.”) The Hearing Examiner is sympathetic to the frustration the Appellants must feel over having received decisions from previous hearing examiners that they passionately disagree with, but their animosity toward any previous hearing examiner is not grounds for the current Hearing Examiner to disqualify himself. This is the current Hearing Examiner’s first case in Bainbridge Island, and, in light of his pending move to the Growth Management Hearings Board, his last case in Bainbridge Island. The current Hearing Examiner came to this case knowing nothing of the Appellants or their previous cases and still, to this day, knows only what the Appellants themselves have presented to him. Nothing that passed between the Appellants and any previous hearing examiner is grounds for disqualification of the current Hearing Examiner. The Hearing Examiner will not reconsider his decision on the grounds that he failed to consider the Appellants’ collateral estoppel and equal protection arguments. Contrary to the Appellants’ claims in their motion, the Hearing Examiner did address the Appellants’ collateral estoppel arguments in Conclusion of Law 11. The Appellants do not ascribe any error to Conclusion 11 or even cite it in their motion. The Appellants are correct that the Hearing Examiner did decline to rule on the Appellants’ equal protection arguments. In Conclusion 12, the Hearing Examiner explained that issues of constitutional law fall outside his jurisdiction. The Appellants’ motion for reconsideration offers no argument that would extend the Hearing Examiner’s jurisdiction to the subject matter of constitutional law. The Appellants are correct that the Hearing Examiner did not allow any prehearing motions on collateral estoppel and equal protection and did not issue any prehearing orders on those subjects. The Appellants were, however, given the opportunity to argue those subjects in their prehearing brief and at the hearing, and did in fact argue those subjects, and received the Hearing Examiner’s ruling on those subjects in Conclusions 11 and 12. There are no grounds here for reconsideration. To the extent the Appellants take issue with the substance of the Hearing Examiner’s Conclusion 11 regarding collateral estoppel, the Appellants are wrong. The decisions of other tribunals regarding the Appellants’ shoreline substantial development permit and hydraulic project approval do not control the Hearing Examiner’s decision on the Appellants’ building permit revision application. See Conclusion 5 (shoreline permit); Conclusion 10 (hydraulic project approval). These are all different permits involving different laws. Collateral estoppel does not compel the issuance of one permit just because a different permit was issued by a different decision-maker pursuant to a different body of law. The Hearing Examiner will not grant reconsideration on this issue. The Appellants may be correct that there was no testimony to the effect that their proposed bulkhead would extend some 14 linear feet of new concrete bulkhead northward from the Order Denying Reconsideration City of Bainbridge Island Hearing Examiner Gerlach Appeal No. BLD 18048ADD Page 5 of 8 northern edge of the boathouse and would extend some linear 45 linear feet of new concrete bulkhead southward of the southern edge of the boathouse. The northward and southward extent of the proposed bulkhead is addressed in the Hearing Examiner’s Finding of Fact 5, which cites Exhibit 8 and Exhibit 11. Exhibit 11 contains site plans for the Appellants’ proposal for the bulkhead. Those site plans show the linear dimensions. The Appellants do not argue that the site plans fail to support the Hearing Examiner’s Finding 5, and, in fact, the site plans do support the finding. The Appellants do not argue that the Hearing Examiner must rely only on testimonial evidence rather than the evidence of admitted exhibits, and any such argument would be wrong in any event. The Hearing Examiner is allowed to look at the Appellants’ own site plans, which they themselves proffered as Exhibit 11, to figure out what the Appellants’ plans were. In addition, the Appellants in their motion do not identify any source in the record specifying different dimensions of the proposed bulkhead that would conflict with Finding 5. Finally, even if the Hearing Examiner were mistaken as to the dimensions of the proposed bulkhead, the grounds for denying the proposed bulkhead were not tied to its dimensions but rather to its nature as a bulkhead. See Conclusion 6. The Appellants have not identified grounds for reconsideration on this point. With regards to the completion of the boathouse, which was one of the reasons for the denial of the Appellants’ application, the Appellants have identified a dispute as to material fact. The Appellants believe the boathouse was never completed. Blake Holmes, the City Building Official, believes it was. See Findings 3, 6, 17, 19, 21. The Hearing Examiner resolved that factual dispute in the City’s favor. See Conclusions 4 and 7. In their motion, the Appellants have not identified any clear mistake as to fact that the Hearing Examiner committed. Rather, the Appellants rehash the factual dispute that the Hearing Examiner resolved. In their motion, the Appellants attribute greater significance to the presence of a ladder at the boathouse than the Hearing Examiner did. Mot. at 7. The Appellants may weigh the evidence differently than the Hearing Examiner did, but that is not grounds for reconsideration. The Hearing Examiner will not revisit the question of whether Shoreline Substantial Development Permit 13500 was ever issued, and if issued, whether it was rightly or wrongly issued. First, the time for challenging the shoreline permit is years past. Second, even if the Appellants were correct that no shoreline permit had ever been issued for their property, that would only further affirm the City’s decision not to issue them a building permit for their bulkhead. See Conclusion 5. The Appellants have tried over and over again to turn this hearing into a referendum on their shoreline permit, but that is not the purpose of this hearing, and the issue is irrelevant anyway because all parties agree, albeit for different reasons, that there is no shoreline permit authorizing a bulkhead. That fact—the absence of a shoreline permit for the bulkhead—is sufficient grounds, on its own, to affirm the denial of the Appellant’s application for a building permit revision to build their bulkhead. See Conclusion 5. Although it is surely not their intent, the Appellants’ repeated argument on this point only bolsters the decision against them. Order Denying Reconsideration City of Bainbridge Island Hearing Examiner Gerlach Appeal No. BLD 18048ADD Page 6 of 8 The Appellants are correct that the estimated cost of their proposed bulkhead does not appear to be in the record. Mot. at 8. Projects below a certain threshold cost do not need shoreline permits, as the Hearing Examiner explained. Conclusion 5. As the Hearing Examiner also noted in Conclusion 5, however, the Appellants have never disputed the City’s conclusion that their proposed bulkhead would require a shoreline permit. The Appellants could have attempted to argue that their proposed bulkhead was exempt from the requirement to obtain shoreline permit due to the cost threshold, an argument which, if successful, might have undermined one of the bases for affirming the City’s decision to deny a building permit revision to construct the bulkhead.1 The Appellants never made an argument along these lines. Instead, they treated the requirement for a shoreline permit as a given and then complained that the City never issued them a shoreline permit. See, e.g., Br. of Appellants, at 7. Even in their motion for reconsideration, the Appellants do not argue that their project is exempt from the shoreline permit requirement, merely that the Hearing Examiner had no basis to determine the project was not exempt, because the project’s cost is not in the record. Mot. at 8. But the burden was on the Appellants to make their arguments during the hearing, first because they are the appealing party and second because, under the statewide shoreline management regulations, “[t]he burden of proof that a development or use is exempt from the permit process is on the applicant.” WAC 173-27-040(1)(c). The Hearing Examiner will not reconsider his decision based on arguments the Appellants could have made but did not make. The Appellants are correct that director Patricia Charnas delegated responsibility to City Building Official Blake Holmes to issue building permits only after Ms. Charnas joined the City. Because Mr. Holmes issued the decision under appeal shortly prior to Ms. Charnas joining the City, Ms. Charnas could not have delegated responsibility to Mr. Holmes to issue the decision. The Hearing Examiner’s findings on this issue are in Finding 17, which reads in relevant part: During the hearing, Patty Charnas, Director of the City of Bainbridge Island Department of Planning and Community Development, testified that she had delegated her authority to issue decisions on building permit applications to Building Official Blake Holmes. Blake Holmes described the reasoning for his April 4, 2022 decision to deny the Appellants’ application for a revision of the Building Permit to allow for the bulkhead. Finding 17. On review, the Hearing Examiner is persuaded that his wording of Finding 17 is ambiguous, and the ambiguity creates a mistaken impression as to the sequence of events. Even though the finding does not say so explicitly, the most natural reading of Finding 17 is that Ms. Charnas first delegated authority to Mr. Holmes to make decisions, and then Mr. Holmes issued the April 4, 2022 decision. As the Appellants correctly point out in their motion, such a sequence of events is impossible. Thus, although it is true that Ms. Charnas did in fact delegate authority to Mr. 1 Although even a project that is exempt from the requirement to obtain a shoreline permit must still comply with shoreline regulations. RCW 90.58.140(1); WAC 173-27-040(1)(b). Order Denying Reconsideration City of Bainbridge Island Hearing Examiner Gerlach Appeal No. BLD 18048ADD Page 7 of 8 Holmes, and although it is also true that Mr. Holmes did in fact issue the April 4, 2022 decision, the sequence of events implied by Finding 17 is not the correct sequence of events. The Hearing Examiner apologizes for the ambiguous and misleading wording. Reviewing the testimony, the Hearing Examiner finds that Ms. Charnas testified she did not know whether the previous director, Mark Hoffman, had delegated responsibility to Mr. Holmes to issue permits. She only knew that she herself had delegated such responsibility to Mr. Holmes. Such a delegation by Ms. Charnas must, per force, have occurred after she arrived at the City. However, Mr. Holmes testified that the previous director, Mr. Hoffman, had also given him responsibility to issue permit decisions, including the permit decision under appeal in this case, and that Mr. Holmes had discussed the Appellants’ specific application with Mr. Hoffman prior to Mr. Holmes issuing the decision on that application. Presumably, if Mr. Hoffman had not wanted Mr. Holmes to issue permit decisions, Mr. Hoffman would not have allowed Mr. Holmes to issue this permit decision. Certainly, the Appellants, who have the burden in this case, have put forward zero evidence to support any notion that Mr. Holmes, the City Building Official, was somehow not the proper official to issue building permit decisions. The Hearing Examiner is satisfied that Mr. Holmes was authorized the issue the permit decision in this case. The Hearing Examiner’s ambiguous wording in Finding 17 creates the inaccurate impression that it was the current director, Ms. Charnas, rather than the previous director, Mr. Hoffman, who had authorized Mr. Holmes to issue the April 4, 2022 permitting decision. Even though that impression is mistaken, it is immaterial. The outcome is the same either way: Mr. Holmes had been entrusted by the director with the responsibility to issue this type of decision. Because the identity of the director is immaterial to the outcome of the case, the ambiguous wording of Finding 17 is not grounds for reconsideration. The Hearing Examiner will leave the decision as it stands because Finding 17, as worded, is ambiguous and misleading as to the sequence of events but not clearly mistaken as to any material fact. The Hearing Examiner will not reconsider the decision on the basis of the City’s 255-day delay in issuing the decision. The Appellants are clearly angry about such a long delay, and rightly so, but the delay itself is not grounds for reversal under the code or any other body of law, as the Hearing Examiner explained in Conclusion 8. The Hearing Examiner will also not reconsider his conclusion that the City’s decision to deny the application did adequately, albeit imperfectly, state the reasons for the denial. As the Hearing Examiner explained in Conclusion 9, the City’s explanation of its reasons was not as clear as it could have been and not as complete as it could have been. There was, however, a level of explanation sufficient to support the denial decision. The Appellants’ objections on this point are simply a rehash of arguments the Hearing Examiner already rejected and are not grounds for reconsideration. Order Denying Reconsideration City of Bainbridge Island Hearing Examiner Gerlach Appeal No. BLD 18048ADD Page 8 of 8 III. ORDER For the foregoing reasons, the Appellants’ motion for reconsideration is hereby DENIED. To avoid an infinite regress of motion practice, the Hearing Examiner will not entertain further motions for reconsideration. So ordered this 6th day of May 2024. ALEX SIDLES Hearing Examiner