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CITY OF BAINBRIDGE ISLAND
In the Matter of:
CANCELLATION OF RICH
SCUP /SSDP /SVARIVAR PLN50327 SCUP
After the Fact Permit for Slope
Stabilization and Access Stairway
RODNEY AND SANDY RICH
APPELLANTS
11691 Sunset Avenue NE
Bainbridge Island, WA
NOTICE OF APPEAL
INTRODUCTION
Rodney and Sandy Rich were served with a notice of violation for shoreline construction
by the City of Bainbridge Island's Code Enforcement Officer on June 23, 2014. The subject of
the Notice of Violation was a series of retaining walls constructed on a steep slope at the Rich
property between 2003 and 2014. On June 15, 2015, The Rich's neighbor's Eric and Janice
Rasmussen filed suit against the Riches for trespass over a disputed strip of land along their
common property line. Portions of the retaining walls lie within the disputed strip.
To resolve the code enforcement action, the Riches chose to pursue an after - the -fact
permit for the retaining wall. Using information gathered at a Pre - Application Conference on
September 22, 2015, the Riches completed both a biological and geotechnical evaluation of the
site to prepare and submit the permit applications required by the City. Despite taking steps to
obtain permits for the walls, the City filed suit against the Riches to abate the walls on August
19, 2015.
During the pre - application meeting, during the intake meeting and clearly described in
the variance application package (See attached excerpt, Section 5 page 4 and Section 12, page 7
of the submitted Variance Application), The City stated that the permit could not be processed
until the property line dispute was resolved as portions of the retaining wall to be permitted was
in the disputed strip. Outside counsel for City regarding the City's suit against the Richs
required the application be submitted regardless of the City's ability to process it.
To resolve the code enforcement action and settle the City's suite against them, the
Rich's submitted a combined application for a shoreline Conditional Use permit (SCUP),
Shoreline Substantial Development Permit (SSDP) a Shoreline Variance (SVAR) and a zoning
Variance (VAR) on August 9, 2016. The City accepted the application and the required fee as
submitted.
During the intake, the Rich's directed Mr. Josh Machen, the City planner on the project to
section 5, page 4 and Section 12 page 7 of the Variance Application (attached) to reiterate the
fact that the application clearly stated that until the property line dispute was resolved the
location of the retaining wall could not be accurately determined. The City planner agreed and
stated that the City would accept the application and await the outcome of the civil suit between
the Rich's and the Rasmussens. Despite making these prior arrangements, the City cancelled the
Rich's application for lack of activity on November 17, 2016. The Civil suit between the Rich's
and the Rasmussens is ongoing as of the date of this appeal. Resolution is expected in
September of 2017.
WHAT IS BEING APPEALED
On November 17, 2016, the City sent a cancellation letter to the Rich's informing them
their application had been cancelled. The Rich's wish to appeal the cancellation of their permit
Application based on the facts described above.
ALLEDGED ERROR
The City erred by 1) Cancelling the Rich's application despite making prior arrangements
to the contrary regarding additional information; 2) not following proper noticing provisions by
not serving the cancellation letter on the Rich's agent, Robert F. Cousins, Attorney at Law,
PLLC. The Richs requests that the City reinstate the application until the property line dispute is
resolved as originally agreed to.
REASON DECISION SHOULD BE REVERSED
Both the City and the Richs were on notice that the Rich's application could not be
processed until the property line disputed was resolved. The Rich's have done everything the
City has asked them to do regarding resolving the code enforcement action and submitted their
application for after the fact permits in accordance with the City's outside counsel's
requirements. The Richs were happy to submit the material but had no control over the
litigation against them instigated by their neighbors the Rasmussens. These "catch -22" facts
were known to the City, clearly stated in the application and arranged for at the time of
submittal. To cancel the application would only result in delay, more expense and most
importantly, the same result in 2 months if the property line dispute has not been resolved- an
absurd result no matter how it is analyzed.
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The Rich's have invested over $60,000 to prepare the permitting package for the after-
the -fact permit application. This does not include legal fees paid to defend the property line
dispute. They are trying to get the retaining wall permitted in a good -faith attempt to resolve the
City's suit against them. If the permit is cancelled, the Rich's will be forced to apply again and
start the process over. The City agreed to stay the code enforcement suit when requested
knowing the property line dispute was a key component to resolving the matter.
The property line dispute will be resolved but not in the next 60 days. To force the
Rich's to re -apply will simply put them in the same appeal environment again and again and
again.
PROPOSED SOLUTION
The Richs propose the following solution:
1) Re- instate and place on hold, the Rich's application and await resolution of the property
line dispute so the permit can be processed with accurate variance criterion through an
accurate delineation of the property line.
2) Maintain the current stay of proceedings regarding the code enforcement action until the
Rich's permit application can be processed and the City can make an informed decision
based on the science and the facts. The code enforcement action will be resolved
4
regardless of the City's future decision to approve, approve with conditions or deny the
Rich's application.
3) As a procedural alternative, refund the Rich's submittal fees. The fees and the same
application package would then be immediately resubmitted with express arrangements
to place the application on hold until the property line dispute is resolved.
CONCLUSION
The Rich's land use application that will resolve the code enforcement action was
cancelled despite prior arrangements with staff that the critical information was simply not
available at the time of application. The Rich's did as instructed and submitted the application to
comply with the City's demand to resolve the code enforcement issue. Reinstating the permit
application as submitted, to be amended once the property line dispute is resolved is the most
efficient and equitable way for the City to help resolve the matter entirely. The Richs reserve the
right to amend the information contained in this Notice of Appeal as necessary prior to any
proposed hearing.
DATED this 1St day of December, 2016.
Robert F. Cousins, Attorney at Law, PLLC
265 Winslow Way E Ste 101
Bainbridge Island, WA 89110
By:
Ro. ert F. Cousins, WSBA #36327
Attorney for Rodney and Sandy Rich
CITY OF BAINBRIDGE ISLAND
VARIANCE APPLICATION
FORM MUST BE COMPLETED IN INK, PREFERABLY BLUE.
PENCIL WILL NOT BE ACCEPTED.
11. Are there underlying/overlying agreements on the property? ❑ yes ❑ no ❑ unknown
If yes, check as appropriate and provide a copy of the decision document:
❑ CUP Conditional Use Permit
❑
SPR Site Plan Review
❑ MPD Master Planned Development
❑
SPT Short Plat
C) PUD Planned Unit Development
❑
SSDP Shoreline Permit
❑ REZ Contract Rezone
❑
SUB Prior Subdivision
❑ RUE Reasonable Use Exception
❑
VAR Zoning Variance
Under which jurisdiction was the approval given?
❑ City of Bainbridge Island ❑ Kitsap County
Approval date: NA
12. Is there any other information which is pertinent to this project? ® yes ❑ no
If yes, please explain:
THE SITE CONSISTS OF ONE HIGH -BANK RESIDENTIAL LOT WITH THE SEPTIC SYSTEM LOCATE
WEST OF THE HOUSE AT THE TOP OF THE SLOPE. A SERIES OF WOOD RETAINING WALLS AND
CONCRETE STEPS WERE CONSTRUCTED ON THE SLOPE IN RESPONSE TO LANDSLIDE ACTIVITY.
THE WALLS WERE CONSTRUCTED PRIMARILY TO STOP EROSION THAT WAS THREATENING THE
SEPTIC SYSTEM AT THE TOP OF THE SLOPE. THIS VARIANCE APPLICATION IS TO ALLOW FOR THE
WALLS TO OCCUPY THE SIDE YARD SET BACK AREA. HOWEVER, THE NORTH PROPERTY LINE IS
CURRENTLY IN A LITIGATED DISPUTE. AS A RESULT, THE SCOPE OF THE VARIANCE CANNOT BE
DETERMINED UNTIL THE PROPERTY LINE LOCATION IS DETERMINED.
THIS VARIANCE APPLICATION IS BEING SUBMITTED CONCURRENTLY WITH A SHORELINE
CONDITIONAL USE PERMIT TO ALLOW THE RETAINING WALLS TO REMAIN WITHIN A CRITICAL
AREA.
B. TECHNICAL INFORMATION
1. Sidewalks are adjacent to the parcel:
[:1 yes ®no
If yes, existing sidewalks are feet wide.
Sidewalk installation is proposed as part of the development project: ❑ yes ® no
Proposed sidewalks:
❑ adjacent to the parcel and are to be feet wide.
DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT
280 MADISON AVENUE NORTH • BAINBRIDGE ISLAND, WA • 98110-1812
PHONE: (206) 842 -2552 c FAx: (206) 780 -0955 • EMAIL: pcd @bainbridgewa.gov
www.ci.bainbridge- isl.wa.us
December 2011 PAGE 1 WILL BE GENERATED BY THE CITY AT TIME OF SUBMITTAL Page 7 of 11
CITY OF BAINBRIDGE ISLAND
VARIANCE APPLICATION;
FORM MUST BE COMPLETED IN INK, PREFERABLY BLUE.
PENCIL WILL NOT BE ACCEPTED.
5. Description of variance request: Variance from sideyard set distance to be determined.
Retaining walls constructed to protect septic system are located entirely on the
agreed upon property line between Rasmussen and Rich. Retaining walls
extend north of platted property line. This property line is in a litigation dispute
And cannot be determined until the litigation is complete.
6. Driving directions to site:
North on Madison Avenue north on Highway 305, west on
Koura, South on Miller Bay Road, west on Arrow Point
Drive, west on NE Frey, north on NE Morris, north on
Sunset. Developed lot is on left side of road.
Please give the following existing parcel information:
Assessor's Parcel Number
4189 - 004 - 019 -0006
Use additional sheet if necessary
7. Legal description (or attach):
VENICE SECOND ADDITION
Parcel Owner *Lot Area
and Sandy Rich 0.26 acres
Total of all Darcels: 1 0.26 acres
* As defined in Bainbridge Island Municipal Code 18.12.050
DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT
280 MADISON AVENUE NORTH • BAINBRIDGE ISLAND, WA • 98110 -1812
PHONE: (206) 842 -2552 + FAx: (206) 780 -0955 • EMAIL: pcd @bainbridgewa.gov
www.ci.bainbridge-isl.wa.us
December 2011 PAGE 1 WILL BE GENERATED BY THE CTTY AT TIME OF SUBMITTAL Page 4 of 11
Confirmation Number: 2782653
Washington
City of Bainbridge Island
Utility
Transaction Details
Account Number
PLN50327
Name
SANDRA RICH
Service Address
11691 SUNSET AVE NE
Purpose of Payment
INTENT TO APPEAL
Page 1 of 1
At y" . 4ff" V. US
Credit Card Payment Address Information
Order Number
2782653
Customer Name
SANDRA RICH
Email Address
Address
11691 SUNSET AVE NE
BAINBRIDGE ISLAND, WA
98110
Phone Number
(206) 719 -7381
Credit Card Number
8028
Credit Card Type
V
Expiration Date
0619
Operator Name
Transaction Time
12/1/2016 1:15:22 PM
Authorization Code
05738D
Convenience Fee
05718D
Authorization Code
Transaction ID
986658980
Agency Total
530.00
Convenience Fee
$20.94
Total Amount
550.94
Charged to Card
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https://pay.paygov.us/EndUser/PaymentReceipt.aspx
12/1/2016