2024 04 22 - BLD18048_ADD - Bainbridge Island - Gerlach Appeal Findings Conclusions and Order
Findings, Conclusions, and Order
City of Bainbridge Island Hearing Examiner
Gerlach Appeal
No. BLD 18048ADD
Page 1 of 17
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
)
) FINDINGS, CONCLUSIONS,
Of a Building Permit Revision Denial ) AND ORDER
I. SUMMARY OF DECISION
The City of Bainbridge Island’s decision, dated April 4, 2022, to deny Appellants Marcus and
Suzanne Gerlach’s application for a revision to building permit no. BLD 18048ADD, is hereby
affirmed. The requested revision was to allow a bulkhead that was not part of the Appellants’
original building permit. For three reasons, the Hearing Examiner concludes the City acted
rightly to deny the requested revision. First, the requested bulkhead was a new structure not
contemplated in the original permit, so it should have been the subject of a new permit
application, not a request to revise the original permit. Second, the requested bulkhead would lie
within the 200-foot shoreline jurisdiction established by the Shoreline Management Act, ch.
90.58 RCW, so the Appellants would need a shoreline substantial development permit
authorizing the bulkhead prior to issuance of a building permit for the bulkhead. The Appellants
do not have a shoreline substantial development permit authorizing the bulkhead. Third, the
requested bulkhead was characterized by the Appellants as an extension to the footing of an
existing boathouse, but the boathouse had already received final approval from the City prior to
the submission of the revision request. Once a permitted structure has received final approval,
the building permit authorizing said structure cannot be revised to add new structural elements.
If new structural elements are desired, a new permit is required. Each of these three reasons,
independently, constitutes necessary and sufficient grounds to deny the application to revise the
building permit.
II. SUMMARY OF RECORD
The Hearing Examiner admitted the 159 exhibits proposed by the parties in their respective lists
of exhibits. No party objected to the admission of any of these exhibits. In addition, the Hearing
Examiner requested the submission by the City of Exhibit 160, a series of screenshots from the
City’s permitting website that City Building Official Blake Holmes displayed during his
testimony. The Appellants intended to call a rebuttal witness to Exhibit 160 but were unable to
locate the rebuttal witness during the hearing. They ultimately decided to rely on the earlier
testimony of their own witness, Architect Patrick Hungerford, to rebut the claims made in
Exhibit 160 and Mr. Holmes’ testimony. Accordingly, the Hearing Examiner admitted Exhibit
160.
Findings, Conclusions, and Order
City of Bainbridge Island Hearing Examiner
Gerlach Appeal
No. BLD 18048ADD
Page 2 of 17
The following witnesses testified at the hearing on the merits, March 28 and 29, 2024:
• Patricia “Patty” Charnas, Director of the City of Bainbridge Island Department of
Planning and Community Development
• Suzanne Gerlach, Appellant
• Patrick Hungerford, Architect for the Appellants
• Blake Holmes, City of Bainbridge Island Building Official
• Jay Harris, City of Bainbridge Island Code Compliance Officer
• Peter Corelis, City of Bainbridge Island Engineer
• Peter Best, Senior Planner in the City of Bainbridge Island Department of Planning and
Community Development
The Appellants were represented at the hearing by Attorney Marcus Gerlach, who is also one of
the named Appellants. The City was represented by Attorneys Zachary Lell and Drew Pollom.
The parties each submitted prehearing briefs. Closing arguments were given orally.
III. PREHEARING MOTIONS
Following a prehearing conference on December 21, 2023, the Hearing Examiner issued a
prehearing order that provided, among other things, the following:
Prehearing motions shall not be allowed. A party wishing to file a prehearing
motion may petition the Hearing Examiner to convene another prehearing
conference to discuss the need for, and scheduling of, prehearing motions and
responses thereto. The petition to convene another prehearing conference shall
briefly state the petitioner’s justification for filing a prehearing motion but need
not include the motion itself. The petition to convene another prehearing
conference may be submitted via email to the clerk to the Hearing Examiner for
dissemination by the clerk. No response to such a petition will be allowed.
Objections to the need for prehearing motions may be raised at the prehearing
conference.
Prehearing Order.
On January 26, 2024, without petitioning for a prehearing conference, the Appellants filed a
motion to disqualify the Hearing Examiner. Due to clerical error, the Hearing Examiner did not
receive a copy of the motion until March 4, 2024, when the Appellants asked for an update.
On March 4, 2024, the Hearing Examiner issued an order denying the motion. First, the
Appellants had not followed the procedures set forth in the prehearing order for the filing of
motions. Second, the Appellants’ motion was predicated on the Appellants’ history of disputes
Findings, Conclusions, and Order
City of Bainbridge Island Hearing Examiner
Gerlach Appeal
No. BLD 18048ADD
Page 3 of 17
with multiple City officials and previous hearing examiners. The current Hearing Examiner was
formerly an independent contractor for one of the previous hearing examiners with whom the
Appellants had had a dispute, but the current Hearing Examiner was not involved in that dispute,
or in any other previous matter involving the Appellants, and was not a contractor for the
previous hearing examiner at the time of the dispute, and had no knowledge of the history of the
Appellants’ various disputes with the City other than what Appellants themselves described in
their motion. Order Denying Motion to Disqualify.
On March 6, 2024, the Appellants petitioned the Hearing Examiner to convene a prehearing
conference to set a motion calendar, because the Appellants intended to file a motion on
collateral estoppel. Appellants cited the Code of Judicial Conduct Rule 2.6(A) for the argument
that prehearing motions are a required component of this proceeding. On March 6, 2024, the
Hearing Examiner issued an order denying the petition to set a motion calendar, first because the
Code of Judicial Conduct does not apply to proceedings before the hearing examiner, and second
because Rule 2.6(A) does not require prehearing motions but rather only requires an opportunity
to be heard. The Hearing Examiner promised the Appellants an opportunity to be heard at the
hearing and noted that the Appellants had already devoted three pages of argument to the issue of
collateral estoppel in their brief. Order Denying Request to File Motion.
The Appellants sent several emails throughout the last two weeks of March asking for leave to
file a motion on equal protection and due process; informing the Hearing Examiner of a
scheduling conflict with a superior court hearing on a motion the Appellants had filed in superior
court on March 21; requesting that the Hearing Examiner authorize the Appellants to issue
subpoenas for depositions of several named City officials; and various other matters. The
Hearing Examiner did not issue further orders in response to these emails, but sent all parties an
email, dated March 25, 2024:
The hearing will proceed in accordance with the prehearing order. The prehearing
order does not include a calendar for prehearing motions, nor for discovery, and
there will be no prehearing motions or discovery, including no prehearing
depositions. Appellant's court reporter, like any member of the public, is welcome
to observe the hearing via Zoom. The City will record this hearing via Zoom, as it
does every public land use hearing. The City's audio recording will be the official
record of the hearing.
The prehearing order calls for one hearing day, plus a second day "if necessary."
We will stick to that schedule. I expect this hearing to conclude no later than the
afternoon of March 29. Given that schedule, I think it will be necessary to limit
each party's examination of witnesses to seven hours per side. That seven hours is
inclusive of direct examination and cross-examination, including Appellant's
rebuttal witnesses, if any (who will be the final witnesses to testify). I expect Ms.
Charnas, Mr. Holmes, and Mr. Harris to attend the hearing on both days, and they
Findings, Conclusions, and Order
City of Bainbridge Island Hearing Examiner
Gerlach Appeal
No. BLD 18048ADD
Page 4 of 17
may be called as witnesses by either party.
In presenting their witnesses and arguments, the parties are reminded that the
Hearing Examiner exercises limited jurisdiction. The Hearing Examiner will not
resolve any questions outside the limited scope of this case, which is an appeal of
the City's decision to deny an application to revise building permit BLD-18048.
The parties are asked to keep in mind the decision criteria the Hearing Examiner
will apply to this case: "In an appeal [to the Hearing Examiner] of a substantive
decision made by the city, the criteria shall be whether (A) the proceedings were
materially affected by failure to comply with adopted procedures, or (B) the
decision is inconsistent with the [Bainbridge Island Municipal Code] criteria for
that type of approval, or (C) the evidence in record was not adequate to support
the decision." BIMC 2.16.020.R.1.i.ii. I ask that the parties direct their evidence
and arguments toward these criteria and avoid issues that fall outside the Hearing
Examiner's limited jurisdiction.
The Appellants responded with an email requesting an order denying their putative motion for
due process/equal protection; an order “arbitrarily and capriciously limiting testimony time to 7
hours by each side following a request for sworn testimony of CBI's witnesses (Order must cite
legal rules for the new requirement, including any ex parte communications with CBI's agents);”
and an order “denying Appellants' subpoena power to compel testimony of CBI's witnesses
before appeal hearing.” The Appellants also sought to renew their motion to disqualify the
Hearing Examiner for bias and informed the Hearing Examiner and parties that they would
obtain deposition testimony of the City officials through other means.
The Hearing Examiner responded by email to all parties that no further prehearing orders would
be forthcoming.
The Appellants responded by email with a fresh list of demands for confirmation in writing, in a
form other than a prehearing order, that:
• The city's hearing examiner is now issuing Orders via e-mail messages in
this matter.
• Motions regarding due process/equitable protection under the law are
inapplicable.
• The RCW, WAC, BIMC, case law, permits an examiner to exclude
hearing testimony.
• BIMC 2.14.030(C)(2)(e) "evaluates testimony and evidence" in the quasi-
judicial hearing, means a 7 hour limit.
• BIMC's hearing examiner (past employee of Sound Law Center) had no ex
parte discussions with the City.
• Appellant's disqualification motion is renewed under BIMC 2.14.030 (F)
based upon recent developments.
Findings, Conclusions, and Order
City of Bainbridge Island Hearing Examiner
Gerlach Appeal
No. BLD 18048ADD
Page 5 of 17
The Hearing Examiner did not respond to this final email, believing that his previous prehearing
orders and email provided sufficient guidance to the parties as to how the case would proceed.
IV. FINDINGS OF FACT
A. Background to the Appeal
1. On April 15, 2022, Marcus and Suzanne Gerlach (Appellants) filed an appeal of a
decision by the City of Bainbridge Island Planning Department (City), dated April 4,
2022, to deny the Appellants’ application, submitted by Appellants on July 23, 2021, for
a revision to a previously issued building permit, no. BLD 18048ADD, issued by the City
on November 2, 2012. Exhibit 1; Exhibit 7; Exhibit 8; Exhibit 22; Exhibit 23.
2. BLD 18048ADD (“the Building Permit”) authorized Appellants to make various
improvements to their single-family residential property located at 579 Stetson Place, on
the shoreline of Eagle Harbor: enlarging the Appellants’ existing house; enlarging
Appellants’ existing garage; constructing a new garage with upstairs office and bedroom
space; and constructing a new boathouse.1 The Building Permit was originally set to
expire on May 5, 2013. The Appellants preserved the Building Permit by requesting
numerous extensions over the course of many years, which the City granted. As a result
of the City’s approval of the extensions, the Building Permit remained active throughout
all the events relevant to this appeal. Exhibit 8; Exhibit 9; Exhibit 12; City’s Prehearing
Brief, at 2 (conceding that Building Permit remained active).
3. The Appellants constructed the boathouse and an arbor that was part of the Building
Permit. They did not construct the other improvements authorized by the Building
Permit. The City inspected the boathouse on July 16, 2019 and concluded that the
boathouse had been completed.2 Exhibit 160; Testimony of Suzanne Gerlach; Testimony
of Blake Holmes; Testimony of Patrick Hungerford.
4. At some time prior to 2021, the Appellants applied for two revisions to the Building
1 Throughout the record, the boathouse is occasionally referred to as a gatehouse. Suzanne Gerlach testified that the
boathouse and the gatehouse are one and the same. For consistency, the Hearing Examiner will call it a boathouse.
2 The Appellants deny that the boathouse was ever completed. Relying on the testimonies of the several witnesses
who have been to the boathouse, the Appellants point to a lack of stairs or ramp leading up to the boathouse, forcing
entrants to the boathouse to use a small ladder to mount the approximately three-foot distance from the ground
outside the boathouse to the floor inside the boathouse. The Appellants argue that the boathouse cannot be called
complete given such an inconvenient mode of entry. The Hearing Examiner finds that the boathouse is complete,
both because it received a final inspection and because the “missing” stairs or ramp are not shown on the site plans
for the boathouse in Exhibit 8. The boathouse was constructed as shown in the site plans, so it is fair to call it
complete.
Findings, Conclusions, and Order
City of Bainbridge Island Hearing Examiner
Gerlach Appeal
No. BLD 18048ADD
Page 6 of 17
Permit, both of which were approved by the City. One of the revisions was for the arbor
close to the Appellants’ single-family residence, allowing a change to the brackets
attaching the arbor to the concrete. The second revision was for the truss system on the
roof of the Appellants’ boathouse. Testimony of Suzanne Gerlach; Testimony of Patrick
Hungerford; Testimony of Blake Holmes.
5. On July 23, 2021, the Appellants submitted a request for another revision to the Building
Permit. In this request, the Appellants sought what they characterized as an extension to
the concrete footing of the boathouse. The constructed boathouse had a frontage along
the water of 14 feet, the width of the building. The proposed “footing extension” would
result in a concrete bulkhead that would span the width of the Appellants’ property line,
some 73 feet. In addition to the existing 14 linear feet of the existing boathouse, the
proposed “footing extension” would extend some 14 linear feet of new concrete bulkhead
northward from the northern edge of the boathouse and would extend some 45 linear feet
of new concrete bulkhead southward from the southern edge of the boathouse, all parallel
to the shoreline. Exhibit 8; Exhibit 11.
6. On April 4, 2022, some 255 days after the application for revision had been submitted,
the City denied the application. The City’s denial decision noted that the original
Building Permit had been issued in November 2012 and allowed a 555 square foot
addition to the main house, a new elevator and an enlarged garage, a new 629 square foot
attached garage with an 899 square foot second floor office and bedroom space, and a
196 square foot boathouse. The boathouse, according to the denial decision, “received a
final sign off on 7/12/2019 as that portion of the approved permit was deemed
complete.”3 In explaining the rationale for the City’s denial, the decision stated:
Regarding requirements of pertinent laws that apply to your application
here, an important provision is the above referenced International
Residential Code (2018 Edition). That residential code is incorporated into
the Bainbridge Island Municipal Code ("BIMC"). See, e.g., BIMC
15.04.020.
As above described, the City's regulations allow amendments or revisions
related to an approved scope of work if it complies with applicable codes
and is part of the original project. See, e.g., BIMC 15.04.040. Here,
however, due to the nature and extent of the proposed work, my
determination as the City's Building Official is that the proposed work is
outside the scope of what would be considered an allowable amendment
3 Based on the testimony of Blake Holmes and the permit inspection history in Exhibit 160, the Hearing Examiner
finds that the boathouse received final approval on July 16, 2019, not July 12 as stated in the denial decision. The
inspection that led to final approval was requested on July 12, but the inspection itself and the determination that the
boathouse was complete occurred on July 16.
Findings, Conclusions, and Order
City of Bainbridge Island Hearing Examiner
Gerlach Appeal
No. BLD 18048ADD
Page 7 of 17
or revision to your existing permit. Therefore, as Building Official, I am
rejecting your request for an amendment or revision to permit BLD 18048
because the application does not conform to the requirements of pertinent
laws regarding what is within the allowable scope of an amendment or
revision to an existing building permit.
Exhibit 22.
7. The denial decision went on to say: “If you wish to apply for new permits regarding the
proposed work, you can do so. If you choose to pursue such permitting, City staff can
provide you with information on the nature and extent of permitting that would be
required.” Exhibit 22.
8. On April 15, 2022, the Appellants filed their notice of appeal of the City’s decision to
deny the requested revision to the Building Permit. The Appellants’ main argument
centered around two previous land use decisions, which will be discussed in more detail
immediately below. The first decision was for shoreline substantial development permit
(SSDP) no. 13500, with an associated mitigated determination of nonsignificance
(MDNS), issued by the City on March 22, 2013. The second decision was for hydraulic
project approval (HPA) no. 2019-6-421+02, issued by the Washington State Department
of Fish and Wildlife (WDFW) on January 31, 2020. Each of these two permits was
subject to a lengthy appeals process. In their notice of appeal for this case, the Appellants
argued that the terms of the SSDP and/or HPA, along with the decisions by the various
tribunals that had reviewed them on appeal, authorized the Appellants to construct the
proposed bulkhead (or footing extension),4 so the City had no basis to deny the requested
revision to the Building Permit to allow the bulkhead. Exhibit 23.
9. As secondary arguments, the Appellants argued that the City had engaged in a history of
vindictive actions against the Appellants regarding previous, unrelated land use projects,
and that other bulkhead projects similar or larger in scope to the Appellants’ proposed
bulkhead had been approved by the City without being subjected to denials and appeals
and other difficulties that the Appellants had experienced. Exhibit 23.
B. The SSDP, the HPA, and the Appeals Thereto
10. Not all of the Appellants’ property lies within the 200-foot shoreline jurisdiction
established by the Shoreline Management Act (SMA), ch. 90.58 RCW, but the boathouse
indisputably does. The boathouse lies some 20 horizontal feet from the mean high-water
mark of Eagle Harbor, according to the Appellants’ Building Permit revision application,
or a little more than five horizontal feet from the ordinary high-water mark, according to
4 The Appellants themselves used the terms footing extension and bulkhead interchangeably in their notice of
appeal.
Findings, Conclusions, and Order
City of Bainbridge Island Hearing Examiner
Gerlach Appeal
No. BLD 18048ADD
Page 8 of 17
the Appellants’ SSDP application. As such, the construction of the boathouse required a
SSDP. Exhibit 6; Exhibit 11.
11. On July 31, 2012, the Appellants applied for a SSDP under file no. 13500. The SSDP
application sought approval of the boathouse, a 174-foot-long dock, a 50-foot retaining
wall, and a 110-foot linear bulkhead. On March 22, 2013, the City issued a notice of
administrative decision on SSDP 13500 as well as a MDNS issued pursuant to the State
Environmental Policy Act (SEPA), ch. 43.21C. The City’s decision on SSDP 13500
approved the boathouse, dock, and retaining wall, but denied the bulkhead. Exhibit 6;
Exhibit 99.
12. On March 28, 2013 and January 17, 2013, respectively, the Appellants appealed SSDP
13500 to the City Hearing Examiner and to Thurston County Superior Court.5 The
Hearing Examiner6 stayed his administrative review of the SSDP pending the resolution
of the judicial prong of the Appellants’ appeal, which involved a challenge under the
appearance of fairness doctrine and related causes of action. The appearance of fairness
challenge proceeded through superior court, the Court of Appeals, and the Supreme
Court, which denied review. The final outcome of the judicial process was the dismissal
of the Appellants’ appearance of fairness challenge. At that point, the Hearing Examiner
resumed his administrative review of the SSDP. Following numerous pre-hearing
motions and orders, the Hearing Examiner ruled, on March 16, 2018, that the Appellants
had abandoned their appeal of the SSDP. According to the Hearing Examiner’s ruling,
the Appellants’ chief argument was that the notice of decision for SSDP 13500 was
unsigned and therefore defective and therefore not a decision that could be subject to
appeal. The Hearing Examiner determined that the Appellants were refusing to continue
their administrative appeal of SSDP 13500. Accordingly, the Hearing Examiner entered
an order dismissing the appeal of SSDP 13500 on March 16, 2018. The Hearing
Examiner’s order dismissing the appeal of SSDP 13500 was not appealed.7 Exhibits 101
through 118.
13. On January 31, 2020, WDFW issued an HPA to the Appellants. The HPA authorized the
following improvements: installation of a pier, ramp, float, boat lift, and a new 70-foot
concrete bulkhead installed at or landward of the ordinary high-water line. The HPA
contained the following provisions related to the bulkhead:
5 The January 17, 2013 superior court action was filed after the Appellant’s application for SSDP 13500 was
submitted but prior to the City’s issuance of SSDP 13500.
6 Not the current Hearing Examiner but a previous one.
7 The Appellants reject the validity of the Hearing Examiner’s order dismissing their appeal of SSDP 13500. The
Appellants believe that SSDP 13500 was never issued and thus, there was never any shoreline permit to appeal.
Findings, Conclusions, and Order
City of Bainbridge Island Hearing Examiner
Gerlach Appeal
No. BLD 18048ADD
Page 9 of 17
35. The length of the new concrete bulkhead must not exceed 70 feet. The
bulkhead may not have turns/corners and must be constructed in a straight
line parallel to the shoreline.
36. The benchmark and baseline for the proposed bulkhead is a straight
line along the waterward face of the existing gatehouse8 foundation. The
OHWL is also located along this baseline. The face of a new bulkhead or
concrete wall may not extend waterward of the OHWL which is at the
benchmark. Establish the waterward distance of the concrete bulkhead
from the permanent benchmark before starting work on the project. The
benchmarks must be located and shown on the approved plans, marked in
the field, and protected to serve as a post-project reference for ten years
37. Saltwater habitats of special concern including intertidal wetland
vascular plants such as pickleweed (Salicornia) and salt grass (Distichlis)
may not be impacted or removed as a result of bulkhead construction.
38. Bury the top of the footing a minimum of 18 inches below the
preproject natural beach grade.
39. Angular rocks, rip rap, and quarry spalls may not be placed waterward
of the OHWL.
40. Beach nourishment or sediment amendment to the beach is not
authorized under this permit. Any fill or materials excavated for bulkhead
footings must be removed from site and disposed of in an approved upland
facility.
41. Bulkhead construction must be performed from the upland and no
heavy machinery or equipment must operate waterward or below the
OHWL or the waterward face of the existing gatehouse foundation. Use
of a barge is not authorized for the construction of the proposed bulkhead
and no barge or vessel may ground on the project beach.
Exhibit 17.
14. The HPA included a section heading in capital letters and underlined:
APPLY TO ALL HYDRAULIC PROJECT APPROVALS
This Hydraulic Project Approval pertains only to those requirements of the
Washington State Hydraulic Code, specifically Chapter 77.55 RCW.
Additional authorization from other public agencies may be necessary for
this project. The person(s) to whom this Hydraulic Project Approval is
issued are responsible for applying for and obtaining any additional
authorization from any other public agencies (local, state, and/or federal)
that may be necessary for this project.
8 As noted above, Suzanne Gerlach testified that the gatehouse and the boathouse are references to the same
structure.
Findings, Conclusions, and Order
City of Bainbridge Island Hearing Examiner
Gerlach Appeal
No. BLD 18048ADD
Page 10 of 17
Exhibit 17.
15. The HPA was subject to its own lengthy appeal saga. Sound Action, an environmental
non-profit organization, appealed the HPA to the Pollution Control Hearings Board
(PCHB), the tribunal established under the Hydraulic Code to hear appeals of HPAs. The
PCHB upheld the HPA. The Thurston County Superior Court and Court of Appeals, to
whom Sound Action afterwards appealed, each upheld the PCHB. Exhibits 18 through
20.
16. The HPA was the sole land use approval the Appellants have ever received authorizing
them to build their proposed bulkhead. As noted above, the Building Permit did not
include a bulkhead, and the SSDP affirmatively rejected a bulkhead, although the SSDP
did authorize other improvements to the property. Exhibit 8; Exhibit 99.
C. The City’s Decision to Deny Appellants’ Building Permit Revision Application
17. 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.
According to Mr. Holmes, the rationales for the denial were: 1) that the Appellants did
not have a shoreline permit for a bulkhead at the time of the Building Permit revision
application; 2) that the proposed bulkhead was a new structure that had not originally
been permitted in the Building Permit; and 3) that the boathouse was already completed
at the time of the Building Permit revision application, so further modifications would
have required a new permit. Mr. Holmes acknowledged that not all of these rationales
were stated in writing in his April 4, 2022 decision. He said he “probably should have”
explained these rationales in the written decision. He also acknowledged that he had
never notified the Appellants that the boathouse had been deemed complete, although he
testified that such information was available to the Appellants through the City’s permit
website. Exhibit 22; Exhibit 160; Testimony of Patty Charnas; Testimony of Blake
Holmes.
18. Mr. Holmes acknowledged that it had taken him 255 days between the time the
Appellants submitted their application for a revision of the Building Permit and the time
he issued the April 4, 2022 decision denying the application. Mr. Holmes also
acknowledged that numerous City officials, including himself, had received letters from
the Appellants during those 255 days. In these letters, the Appellants repeatedly
requested (or, it is fair to say, demanded) that a decision be rendered on the application.
Mr. Holmes believed he had answered “some” of the Appellants’ letters “early on,” but
he acknowledged that he had not answered most of the letters. No one else at the City
Findings, Conclusions, and Order
City of Bainbridge Island Hearing Examiner
Gerlach Appeal
No. BLD 18048ADD
Page 11 of 17
had answered most of the letters, either, according to Ms. Gerlach. Mr. Holmes testified
that he was working on the application periodically throughout the 255 days, although
neither he nor any other witness was ever able to convincingly explain why it took such a
long time to issue the decision. Exhibits 66 through 80; Testimony of Blake Holmes;
Testimony of Suzanne Gerlach.
19. In support of Mr. Holmes’s belief that the proposed bulkhead was a substantially
different structure than the existing boathouse footing, City Engineer Peter Corelis
testified that the purpose of a foundation is to transmit the load of a building down to
some stable ground. He testified that the bulkhead, labelled “concrete footing extension”
in the Appellants’ application, Exhibit 11, would not provide additional structural
connection between the boathouse and the ground—or, at least, that the Appellants’
materials did not demonstrate that it would provide such a structural connection.
However, the Appellants’ architect, Patrick Hungerford, testified that it was not a
bulkhead but a sidewall because it would not be “out on the beach.” Testimony of Peter
Corelis; Testimony of Patrick Hungerford.
20. City Senior Planner Peter Best testified that, in the dozens of boathouses and thousands
of bulkheads he had reviewed on Bainbridge Island, none had ever used an extended
structural foundation like the bulkhead proposed by the Appellants. Mr. Best cited the
definition of bulkhead in Section 8 the City’s Shoreline Master Program:
Bulkhead – A wall erected generally parallel to and located at or close to
the ordinary high water mark for the purpose of containing and preventing
the loss of soil due to shoreline erosion caused by tidal action, current or
waves. Bulkheads are usually constructed of hard materials and may be
built of concrete, large rocks (riprap), or other materials. See also Seawall.
Mr. Best testified that the base of the Appellants’ proposed structure was at or near the
ordinary high-water mark, and that it was a wall parallel to the shoreline and would be
constructed of hard materials. He testified that the Appellants had justified the bulkhead,
in their HPA materials, as necessary to prevent erosion. Therefore, it was a bulkhead.
Mr. Best conceded that a bulkhead could also be part of a building’s foundation or
footing if, in addition to its role as a seawall, it was also providing structural support to
the building. It could, in other words, wear “two hats.” But even if the Appellants’
bulkhead were, indeed, a footing extension, it would still also be a bulkhead as that term
is defined in the Shoreline Master Program. Testimony of Peter Best.
21. In support of Mr. Holmes’ belief that the boathouse had been finalized, Mr. Holmes
testified that he had inspected the property, as described above. However, the
Appellants’ architect, Patrick Hungerford, who designed the boathouse, testified that the
floor of the boathouse was three feet above ground, requiring a ladder to get in. Mr.
Hungerford testified that ladder access was not a usual mode of access to a boathouse.
Without a more convenient mode of access, Mr. Hungerford did not consider the
Findings, Conclusions, and Order
City of Bainbridge Island Hearing Examiner
Gerlach Appeal
No. BLD 18048ADD
Page 12 of 17
boathouse to be a completed structure. A completed structure would require a ramp of
soil or else stairs, neither of which the boathouse had. Mr. Hungerford testified he had
deliberately omitted depicting a soil ramp or stairs from his site plans, because those
options for access could be added later, without the need for a building permit or
revision, so long as the stairs were 30 inches above grade or shorter. Testimony of Blake
Holmes; Testimony of Patrick Hungerford.
22. The Appellants repeatedly raised issues related to SSDP 13500 during their current
appeal. In their briefing and arguments, through witness testimony, and during cross-
examination of City staff, the Appellants repeatedly attempted to show that SSDP 13500
was never validly issued. The City’s notice of decision for SSDP 13500 is, indeed,
unsigned, just as Appellants have been arguing since 2013. Likewise, the notice of
decision for SSDP 13500 identifies the “permit request” as “SSDP13500B,” which
Appellants argued was something different from SSDP 13500. The Appellants also
denied that the Hearing Examiner’s March 16, 2018 order dismissing their appeal of the
SSDP carried any significance, because, according to the Appellants, no SSDP was ever
properly issued. Exhibit 99; Testimony of Patricia Charnas; Testimony of Suzanne
Gerlach; Testimony of Blake Holmes; Appellants’ Opening Statement; Appellants’
Closing Argument; Appellants’ Prehearing Brief, at 4, 5.
23. The Appellants repeatedly raised issues related to previous disputes themselves and the
City over unrelated land use permitting matters. They also raised issues related to the
City’s seemingly much faster approval of other applicants’ permits for bulkheads.
Testimony of Patricia Charnas; Testimony of Suzanne Gerlach; Testimony of Blake
Holmes; Appellants’ Opening Statement; Appellants’ Closing Argument; Appellants’
Prehearing Brief, at 4 through 8.
V. CONCLUSIONS OF LAW
A. Jurisdiction and Standard of Review
1. The Hearing Examiner has jurisdiction over appeals of building permit decisions,
including the Appellants’ appeal of the April 4, 2022 decision to deny an application to
revise the Building Permit. BIMC 2.16.010; BIMC 15.04.130.A. “An application for
appeal shall be based on a claim that the true intent of the city building code or the rules
legally adopted thereunder have been incorrectly interpreted, the provisions of the city
building code do not fully apply or an equally good or better form of construction is
proposed.” BIMC 15.04.130.B.
2. In an appeal to the Hearing Examiner of a substantive decision made by the City, the
criteria shall be whether (A) the proceedings were materially affected by failure to
comply with adopted procedures, or (B) the decision is inconsistent with the [Bainbridge
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Island Municipal Code] criteria for that type of approval, or (C) the evidence in record
was not adequate to support the decision. BIMC 2.16.020.R.1.i.ii.
3. Upon completion of the appeal hearing, the Hearing Examiner shall (i) affirm the
decision, (ii) reverse the decision, (iii) affirm the decision with conditions, or (iv) remand
the decision to the department director for further consideration of identified issues. The
decision of the director shall be accorded substantial weight by the Hearing Examiner.
The Hearing Examiner may include conditions as part of a decision granting or granting
with conditions an appeal to ensure conformance with BIMC, the city’s comprehensive
plan and other applicable laws or regulations. BIMC 2.16.020.R.1.k.
B. The City’s Decision to Deny the Application for Revision of the Building Permit
4. The Hearing Examiner concludes that the City acted correctly in denying the Appellants’
application to revise the Building Permit. The three bases for denial identified by Blake
Holmes in his testimony are each sufficient, on their own to support denial: lack of a
shoreline permit; proposal to build a bulkhead that was not in the original Building
Permit; and completion of the boathouse prior to application for revision of the Building
Permit. Even in the absence of the requirement to afford “substantial weight” to the
denial decision, the Hearing Examiner would still uphold the decision, as it was
unambiguously correct.
5. A development project that occurs within the 200-foot shoreline jurisdiction established
by the Shoreline Management Act, ch. 90.58 RCW, must have a shoreline substantial
development permit (SSDP) if the cost of the project will exceed $8,504. RCW
90.58.140(2) (requiring permit for substantial development); WSR-22-11-036 (setting
current cost threshold of substantial development).9 On Bainbridge Island, a project that
requires both a SSDP and some other permit must obtain the SSDP first. BIMC
2.16.165.C.1.b. Here, no party disputes that the proposed bulkhead was subject to a
requirement to obtain a SSDP, although the exact cost of the bulkhead does not appear in
the record. Similarly, no party disputes that the Appellants do not have a SSDP
authorizing the bulkhead. The Appellants believe no SSDP was ever issued, while the
City believes SSDP 13500 was issued in 2012 but did not authorize a bulkhead, and was
then appealed to a previous hearing examiner, who dismissed the appeal in 2018. The
current Hearing Examiner does not need to adjudicate the validity of SSDP 13500 or the
subsequent dismissal of its appeal, because the result is the same for purposes of this
case: there is no SSDP authorizing the bulkhead. The absence of a SSDP authorizing the
bulkhead was sufficient and necessary grounds to deny the application for a revision of
the Building Permit to construct the bulkhead. The City committed no error in denying
9 The current threshold of $8,504 became effective July 1, 2022. WSR 22-11-036. The previous threshold was
$7,047, effective September 2, 2017. WSR 17-17-007.
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the application for this reason.
6. A building permit is “[a]n official document or certificate issued by the building official
that authorizes performance of a specified activity.” International Residential Code (IRC)
§R202; BIMC 15.04.020.B (adopting the IRC by reference). Here, the Building Permit
specified a boathouse as an allowed activity, but it did not specify a bulkhead. Therefore,
the Hearing Examiner concludes that adding a bulkhead to the project would have
required a new building permit. The Hearing Examiner rejects the argument that the
proposed bulkhead is “merely” a concrete footing extension of the permitted boathouse.
First, the Hearing Examiner finds persuasive the testimony of Peter Corelis that the
bulkhead is not providing any indispensable foundational function for the boathouse, so it
is more likely than not something other than a foundational footing extension. Second,
and more importantly, the Hearing Examiner agrees with Peter Best that a structure that
performs the functions of both a foundation and a bulkhead is a bulkhead. Here, the
proposed linear concrete wall is parallel to the shoreline and lies at or just above the
ordinary high-water mark and is intended to reduce erosion. It meets all the definitions of
a bulkhead in Section 8 of the City’s Shoreline Master Program. It has also been referred
to as a bulkhead on countless occasions by the Appellants themselves, including in their
notice of appeal and their brief to the Hearing Examiner. Whether it is also a concrete
footing extension is irrelevant, because it is a bulkhead regardless of whatever other
functions it does or does not perform. The Appellants were required to submit a new
building permit application for the bulkhead, because it was not one of the activities
specified in their original Building Permit. The City did not err in denying the
application for revision on these grounds.
7. Building permits can be amended, under the City code. Indeed, the Building Permit at
issue in this case was amended on two prior occasions. Amendments to building permits
are governed by the following rule: “When substitutions and changes are made during
construction, approval shall be secured prior to execution. Substitutions, changes and
clarifications shall be shown on two sets of plans which shall be submitted to and
approved by the building official, accompanied by redesign fees, prior to occupancy.”
BIMC 15.04.040.A.4 (emphasis added). The Hearing Examiner interprets the phrases
“during construction” and “prior to occupancy” to mean that permit amendments are only
allowed before construction of the building is complete. Once construction is complete,
and the building is ready for occupation, the permit can no longer be amended. At that
point, any desired structural modification of the building would require a new building
permit. Here, the Hearing Examiner concludes that construction of the boathouse was
complete, at least for purposes of the Building Permit. The Hearing Examiner recognizes
that access to the boathouse is inconvenient and requires a ladder to ascend the three feet
from the ground outside to the floor of the boathouse. However, the Hearing Examiner is
persuaded by the testimonies of both Blake Holmes and Peter Hungerford that access to
the boathouse could be provided by filling and grading a soil ramp from the ground to the
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floor of the boathouse, or through some other relatively simple addition that would not
require a building permit. No features depicted on the site plans for the boathouse are
missing. It is not the case, for example, that the site plans depicted stairs that were never
installed. The Appellants built the boathouse they told the City they were planning to
build. The Hearing Examiner concludes that Mr. Holmes acted correctly when, on July
16, 2019, he updated the boathouse’s status in the permit portal to “final.” The boathouse
was a completed structure as of that date, and any substantial modifications thereto, such
as the proposed 70-foot bulkhead-cum-footing extension, would require a new building
permit. The City did not err in denying the revision request on this basis.
8. The City’s 255-day delay in issuing a decision the Appellants’ application to revise the
Building Permit reflects poorly on the City. As noted above, the Hearing Examiner
cannot find any convincing explanation for why such a short decision in such a simple
case—one in which there were three independent grounds for denial—took the better part
of a year to issue. The Hearing Examiner takes Mr. Holmes at his word that he was
working on the decision intermittently, but even so, there is still no reason for such a long
delay. The delay is even less explicable in light of the 14 or more separate
communications the Appellants sent to the City, including several to Mr. Holmes
personally. Regardless of the content or tone of those letters, the sheer volume of letters
should have reminded the City to make more of an effort to hit its 120-day deadline.
Still, even though the City’s 255-day delay may have been a civic wrong, the Hearing
Examiner concludes it was not unlawful. The City code provides that “[f]inal decisions
on land use applications should be issued within 120 days.” BIMC 2.16.020.L.1. The
rules of construction set forth in the code specify that the word “should” is permissive,
not mandatory. BIMC 18.36.010.E (rule of construction); BIMC 18.03.010 (requiring ch.
18 to be read together with ch. 15, the building code). The Hearing Examiner concludes
that the City was not required to issue a decision on the Appellants’ application within
120 days, merely that it “should” have done so. In addition to using the permissive word
“should,” the code also does not provide for any remedy in the event the City exceeds the
120-day deadline for issuing a decision on the application. It is not the case, for example,
that an application is automatically granted if the City exceeds the deadline. Instead, as
the City argued in closing, the only option for an aggrieved applicant who has not
received a decision on an application is to bring a mandamus action. See State, ex rel.
Craven v. City of Tacoma, 63 Wn.2d 23, 385 P.2d 372 (1965); Teed v. King Cty., 36 Wn.
App. 635, 677 P.2d 179 (1984). For these reasons, the Hearing Examiner rejects the
Appellants’ argument that the 255-day decision time constituted a reversible error on the
part of the City. It was poorly done, but not unlawfully done. The evidence the
Appellants put forward showing that the City can move much faster on other bulkhead-
related applications than it did on the Appellants’ application is not relevant to the
question of whether the City acted unlawfully in the Appellants’ case.
9. It is a requirement of the building code that “[i]f the application [for a building permit or
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amendment] or the construction documents do not conform to the requirements of
pertinent laws, the building official shall reject such application in writing stating the
reasons therefor.” IRC R105.3.1. Here, the April 4, 2022 denial decision did not state all
three of the City’s reasons for denial. The denial decision alluded, with poor explanation,
to the fact that the boathouse had been deemed complete in 2019, and it stated that the
proposed bulkhead was outside the scope of what had been approved in the original
Building Permit. It did not cite any specific code provision prohibiting amendments to
permits when a project has been deemed complete, nor to any specific code provision
prohibiting new structures that are outside the scope of the original permit. It did not
mention the absence of a SSDP at all. As the Appellants pointed out in their closing
arguments, one of the reasons their notice of appeal went on at such length is because the
Appellants were so poorly informed of the reasons their revision application had been
denied. During the hearing, Mr. Holmes admitted he “probably should have” provided
more explanation in the denial decision. Still, even though the denial decision did not
cite its sources of authority, and even though it omitted the most obvious reason for the
denial—namely, lack of SSDP—the denial decision did at least mention the issues of the
completed boathouse and the scope of authorized work in the original Building Permit,
which, as noted above, the Hearing Examiner concludes were necessary and sufficient
reasons to deny the application. Furthermore, the denial decision correctly informed the
Appellants of the only path forward: to apply for new permits for the proposed work.
The Hearing Examiner concludes that the City did not commit a reversible error, even if
it should have provided more explanation.
10. The Hearing Examiner rejects all of the Appellants’ arguments relating to the HPA. An
HPA is issued by WDFW, a state agency, pursuant to the Hydraulic Code, ch. 77.55
RCW. It is but one land use approval among several that a project may need. It is not an
umbrella approval for a project as a whole. It is not a substitute for a SSDP issued by the
City pursuant to the Shoreline Management Act, ch. 90.58 RCW, if one is required. It is
not a substitute for a building permit issued by the City pursuant to its building code, if
one is required. It does not pre-empt any other land use decision by any other decision-
maker. Its issuance does not compel the issuance of any other permit or approval. WAC
220-660-050 (“HPAs do not exempt a person from obtaining other necessary permits and
following the rules and regulations of local, federal, and other Washington state
agencies.”) The Appellants’ HPA itself carried a disclaimer, headed in capital letters and
underlined, informing the Appellants that they were “responsible for applying for and
obtaining any additional authorization from any other public agencies (local, state, and/or
federal) that may be necessary for this project.” It is clear, from the amount of argument
the Appellants devoted to HPA-related issues, that they strongly believe the issuance of
an HPA by WDFW should compel local government to issue whatever other permits are
necessary to construct the project authorized by the HPA. That belief is not supported by
the law.
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11. The Hearing Examiner rejects the Appellants’ arguments related to collateral estoppel.
While it is true the Appellants have appeared many times before many different tribunals
in the course of their various appeals related to this proposed bulkhead, each of those
tribunals issued rulings on some land use decision other than the Building Permit revision
request that is at issue here. The issues in this case are not identical to those raised in the
other appeals, because this case involves a different land use decision, by a different
decision-maker, pursuant to a different body of law. Collateral estoppel does not compel
the issuance of the Building Permit revision.
12. The Hearing Examiner declines to rule on any the Appellants’ arguments related to
equitable estoppel, equal protection, due process, or the City’s history of what the
Appellants believe are discriminatory, vindictive actions against them. All such matters
fall outside the Hearing Examiner’s jurisdiction in this case.
VI. DECISION
The City’s decision of April 4, 2022 to deny the Appellants’ application to revise Building Permit BLD
18048ADD is hereby AFFIRMED. As noted in the denial decision, the Appellants may submit
applications for new permits for the proposed project.
So ordered this 22nd day of April 2024.
ALEX SIDLES
Hearing Examiner