RICH, RODNEY & SANDY1
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%4. kv,wj�Ltoy�V
V'AM%q
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BEFORE THE CITY OF BAINBRIDGE ISLAND
OFFICE OF HEARING EXAMINER
RODNEY AND SANDY RICH,
Appellants,
V.
CITY OF BAINBRIDGE ISLAND, acting
through its Department of Planning and
Community Development,
No. COD -14020
APPEAL OF ADMINISTRATIVE
DECISION
Rodney and Sandy Rich, Appellants herein, pursuant to City of Bainbridge Island
Municipal Code (`BIMC") § 1.26.070(D), BIMC § 2.16.020(P), BIMC § 2.16.020(C)(2),
BIMC § 2.16.010 (Table 2.16.010-1), and BIMC § 2.16.100(B), hereby appeal to the
Bainbridge Island Office of Hearing Examiner that certain administrative decision dated
December 12. 2014 (the "Decision") issued by Katherine Cook, Director, City of Bainbridge
Island Department of Planning and Community Development ("the City") under the signature
of City Attorney Lisa Marshall. The Decision is made upon a Request for Director's Review.
That request addressed a Code Enforcement Action initiated by a Notice of Violation and
Order to Correct dated June 23, 2014, under File NO. COD -14020.
APPEAL OF ADMINISTRATIVE DECISION - 1 of 12
[90260-11
ORI G INAI
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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011
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1. NAME AND IDENTITY OF APPELLANTS
AND BASIS FOR STANDING
the property subject to the City's Code Enforcement Action.
1.1 Appellants' legal representative in this matter is the Dennis D. Reynolds Law
Decision because their property is the subject of the City's Code Enforcement Action.
Appellants are prejudiced or likely to be prejudiced by the City's actions specified below if no
relief is granted. A ruling in favor of Appellants will substantially eliminate or redress the
prejudice that the Decision has caused, or likely will cause them, for which review and relief
2.0 The City of Bainbridge Island, Department of Planning and Community
Development, 280 Madison Avenue North, Bainbridge Island, Washington, 98110, telephone:
MRINIMMIXI
m3mazim
Vause, the Director of the Department of Planning and Community Development Kathy Cook
and City Attorney Lisa Marshall.
1:11. NAME AND IDENTITY OF POTENTIAL
INTERESTED PARTIES
3.0 Dr. Eric and Janice Rasmussen, 11721 Sunset Avenue NE, Bainbridge Island,
DENNis D. REYNOLDS LAW OFFICE
APPEAL OF ADMINISTRATIVE DECISION - 2 of 12 200 Winslow Way West, Suite 380
[902.60-11 Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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WITWIT-M
I 1111111101 X4j 611 [INVI W
A-1 1 0 rirni i
4.0 Appellants appeal the Administrative Decision dated December 12, 2014. A
true and correct copy of the Decision is annexed hereto to this appeal as Exhibit 1, by
reference made part of this Appeal. A copy of the Notice of Violation and Order to Correct is
Exhibit A to the Appellant's Request For Director's Review dated July 3, 2014, annexed
hereto as Exhibit 2, by reference made part of this Appeal.
4.1 The Decision states in part
In particular, your clients constructed a terraced retaining wall
(hereafter "the retaining wall") to over four feet tall covering
several hundred square feet of their property without any
building permits, shoreline permits, or necessary authorization
frI m the City. Additionally, the retaining wall encroaches at
least twelve feet onto the property to the North owned by Eric
Rasmussen, copies herein. For the reasons which follow, the
ordinances.
(Ex. 1, 2=hasis Mplied).
and/I r internally inconsistent in that it states the retaining wall cannot be permitted, but also
M8101 I "OIillllli'lllll III PIPPIN iiiiiiiiiIi 11111111,11 IIIIIIiII all'i'll 11111 i 1 51 111111111
See also Decision, p. 6 ("Because the retaining wall cannot be permitted...").
DENNIS D. REYNOLDS LAW OFFICE
APPEAL OF ADMINISTRATIVE DECISION - 3 of 12 200 Winslow Way West, Suite 380
[90260-11 Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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V. STATEMENT OF RELEVANT FACTS IN SUPPORT OF
GROUNDS FOR APPEAL
pill % lig 11 p�� I I'll
am�Iffil I I I I I : 11 1 1 6 0 -
within the City of Bainbridge Island, Quit Claim Deed, AFN 200106290464 (recorded
June 29, 2001). Mrs. Sandra Rich originally purchased the property on September 7, 1993.
Statutory Warranty Deed, AFN 9309090203 (recorded September 9, 1993). Their property is
developed with a single-family residence and appurtenant structures. The address of the
property is 11691 Sunset Avenue NE, Bainbridge Island, Washington 98110, tax parcel
4189-004-019-0006. The property IS within Shoreline Management Act jurisdiction. It
contains steep slopes which appear to be regulated under the City's Critical Areas Ordinance,
111�111111111111111
'Tr, W Ra- III Z. IN,
No! lr:�ili
Second Addition, Vol. 3 of Plats, page 134., recorded February 16, 1911. Although the
properties were platted, the boundary line has changed by operation of law based upon
permission and/or acquiescence. The actual boundary between the two properties is
comprised of certain structures and improvements (" the Boundary Markers"), all which are
depicted on a survey commissioned by the Rasmussens in August 2013.
5.3 One Boundary Marker is a concrete wall constructed by Mr. Rich in 1993 that
runs from Sunset Avenue to the top edge of the bank. At the time the wall was constructed,
DENNIS D. REYNOLDS LAW OFFICE
APPEAL OF ADMINISTRATIVE DECISION - 4 of 12 200 Winslow Way West, Suite 380
[90260-11 Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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and since, the Riches and the Rasmussens agreed it would represent the boundary. At the
bottom of the bank, the Rasmussens have erected a wooden deck. That deck has been in place
since at least 1993. Since that date, both property owners have used the southern end of that
deck as the mutual boundary marker. The wooden deck extends approximately two and one
half feet over an orange survey bolt on the Rasmussen's bulkhead. Based on the position of
the orange survey bolt, the Rasmussens have stated that they believe that part of the deck was
actually on the Rich's property. The Riches are uncertain who placed the survey bolt.
5.4 Immediately adjacent to the wooden deck, Mr. and Mrs. Rich have maintained
a bulkhead and the slope leading up to the concrete wall at the top edge of the bank since
1993. Over the last twenty years, they have made improvements on the bank commencing in
2001. Specifically, they have constructed an access trail composed of "step" terraces. The
terraces are wood and fill with cement tops. They constructed a stone wall in 2009 which also
is a "marker." They placed gravel on the top of their bulkhead in 2010, all in reliance upon
the Rasmussen's agreement as to the location of the boundary line. The bank work was done
by Mr. Rich accessing the slope via theRasmussens' beach stairs. He had permission to use
5.5 Pursuant to the well-defined "Boundary Markers" set out above, both partira
have maintained their respective properties on the agreed sides for over the last 20 years.
Thus, besides the well-defined Boundary Markers, the parties recognized those markers as the
boundary through actions and words. In recognition of those certain boundary markers (edge
of deck, timber wall, and concrete wall), the parcel boundary changed by operation of law
pursuant to the doctrine of mutual recognition and acquiescence. In the alternative, the
property line is established by adverse possession. Specifically, the north face of the concrete
DENNIs D. REYNOLDS LAW OFFICE
APPEAL OF ADMINISTRATIVE DECISION - 5 of 12 200 Winslow Way West, Suite 380
[90260..1:1 Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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wall, north face of the timbers, and a line running down to the southern extent of the wooden
deck represent the actual boundary. The boundary line has been recognized as the mutual
property line for over 10 years. Merriman v. Cokeley, 168 Wn. 2d 627, 630-31, 230 P.3d 162
(2010) (describing elements of mutual recognition and acquiescence). Courts in Washington
have agreed that a certain boundary exists when a "fence, a pathway, or some other object or
combination of objects clearly dividing the two parcels." Id. (citing Lamm v. McTighe, 72
I 1 6
piq
11 P1111!
Demand was made on June 25, 2014, to the Rasmussens by the Riches that the wall be
removed. The Rasmussens have wholly failed to do so. The wall cuts off the Rich's access to
approximately 23 percent of their waterfront. The Rasmussens have also put up a wire fence
and run wire around a large Maple tree located on the Richs' property. That is so, even based
upon the Rasmussens' survey, the fence is on the Rich Property.
5.7 As set out above, the City initiated a Code Enforcement action against Mr. and
Mrs. Rich. Appellants do not object to obtaining after -the -fact permits or approvals for the
work of concern to the City, which they believe in good faith was allowed by law and exempt.
They also qLo. iiot (11�1 to providing the City the studies requested in the Decision, or to any
reasonable and proportionate mitigation required. The gl�oo -, i!qto the City attempting to
determine their property line or presupposing that they cannot meet Code requirements for the
V1. SUMMARY OF GROUNDS FOR APPEAIN
6.0 Appellants reallege their allegations set out in Sections I — V of the appeal.
APPEAL OF ADMINISTRATIVE DECISION - 6 of 12
[90260-11
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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I+ II! III INIIIIIF F 1111 1 . I 'I
Statement of Factual Errors
6.2 The Decision is in error in finding that Appellants have encroached "at least
11011kyj M44 36+ + .� R i I I 1 1111 1 1 111 1 1 1: 11 1 111•1 mm.+,1 -
��1=4 MIN III I II I I II 1 1111 1 111 HIT U11 0
Statement of Legal Errors
18.03.080 Private agreements, covenants, and restrictions.
This code is not intended to abrogate, annul or otherwise
interfere with any casement, covenant, or other private
agreement or legal relationship; provided, however, that where
the regulations of this code are more restrictive or impose
higher standards or requirements than such easements,
covenants or other private agreements or legal relationships,
the regulations of this code shall govern. The city is not
responsible for enforcing private easements, covenants, or other
similar restrictions. (Ord. 2011-02 § 2 (Exh. A), 2011).
BIMC § 18.03.080 (emphasis supplied). Based upon the City Code section, Bainbridg,*
q�111111111 1111,=
11 11111 Z4
*.4 The City also has no basis to regulate or determine boundary lines between
firivately owned property under its general police power. The analysis of the authority of 2
ide, t first
begin with the understanding of fundamental principles set forth in the State's constitution:
F.T,,I 116 JYM 8 1111141 LIA [I 11I Be 11181401 MR111 SIM 01 1117WIIFMUI���
2 Appellants reserve the right to supplement these allegations upon review of the City's file, which may contain
information regarding ex parte contacts with Mr. and Mrs. Rasmussen.
DENNis D. REYNOLDS LAW OFFICE
APPEAL OF ADMINISTRATIVE DECISION - 7 of 12 200 Winslow Way West, Suite 380
[90260-11 Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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I i I III I � 11 111 1 111 1 1 IF I I I I I I I I I I I R! , I I ��r I , 0
WE 0
At the heart of the Washington Constitution is the emphasis on
protecting individual rights. Washington, like other states, begins
its constitution with a Declaration of Rights. The Declaration of
&v sets the tone for Washington's government bpGoroclaim Lir�t-4
X -
the paramount purpose of government; "governments
established to protect and maintain individual rights.
Brian Snure, A Frequent Recurrence To Fundamental Principles: Individual Rights, 67
Imm
C 6 The author discusses the "natural law " origins of Article I, section 32 and R
To Blackstone the three absolute rights which proceed from til
law of nature are the right of personal security, the right of
[Fiersonal liberty and the right of private property.
1001 r ll, JIM Ill I OPIUM il�� 1111 g 1 1 1111 Jill 1111111
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IIII01
IFIR iiiiiiiiii ill PREFER! Ili Iiiiiiiiii RISEN=$
regulate without compensation those "fast lands, " being defined as lands abutting shorelines
,f). 8 A case addressing the accepted doctrine along navigable shorelines is U.S. v.
DENNIS D. REYNOLDS LAW OFFICE
APPEAL OF ADMINISTRATIVE DECISION - 8 of 12 200 Winslow Way West, Suite 380
[90260-11 Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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0
the historic rights of riparian owners vis -A -vis the public along the shorelines. Quoting a
The owner of the bank has no jus privatum, or special
unufructuary interest, in the water. He does not from the mere
circumstance that he is the owner of the bank, acquire any
special or particular interest in the stream, over any -I 1- 99999-
9774/LEGAL20475982.1 other member of the public, except
that, by his proximity thereto, he enjoys greater conveniences
than the public generally. To him, riparian ownership brings
no greater rights than those incident to all the public, except
that he can approach the waters more readily, and over lands
. I
allikkm� - , . 11, .
6.9 The key distinction in the historic shoreline cases was a recognition of a very
water on navigable waters — the "riparian " area — the public had an interest in the navigabl(i.
ME MEMKIM, IM!"I UE� � =;,
trespass. The right to exclude is a fundamental property right:
In this case, we hold that the "right to exclude, " so universally
held to be a fundamental element of the property right, FNI I
falls within this category of interests that the Government
cannot take without compensation.
APPEAL OF ADMINISTRATIVE DECISION - 9 of 12
[90260-11
Ire=
DENNIS D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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KaiserAetna v. U. S., 444 U.S. 164, 100 S.Ct. 383 U.S. Hawaii (1979), at 179-184
F•
J��!j 111p I I � I p I pqpp I I I I I gi � I I � I I I I I I I I � I
A,• 0
6.12 Even if the City's new Shoreline Master Program applies, the law allows
property owners to protect their property. The facts will show that the retaining wall is
required to protect the slope (and its integrity) on Appellants' property. Thus, it is legal error
rN I
L,Vrpose. The intent of this section is to prevent the potential for-
f/ersonal injury or loss of life or property due to flooding,
erosion, landslides, seismic evens, or soil subsidence....
1111111 111111;
protect slope stability, a function served by the retaining wall. See BIMC § 16.20.150(E)
(Development Standards). It is error to determine that the retaining wall cannot be approved
6.15 There is a fundamental right to own and reasonably develop real property free
of arbitrary governmental actions, including enforcement of the law without basis in law or
fact. See, e.g., Carpinteria Valley Farms v. County of Santa Barbara, 334 F.3d 796 (Ninth
Circuit, 2003). The Decision violates Appellants' constitutional rights, including their right
to substantive and/or procedural due process, equal protection, and the right to be free from
arbitrary or discriminatory application and enforcement of promulgated laws.
-' As stated by Mr, Jus,tice Brandeis, "[a Inessoitial clententof iridividita I property is the legal right to exc1lide
others frorn, erijoying it. " [eitatiom oinitted] Thos, if the Govermnetit wishes to inake wbat was f'ormerly KLIapa
Pond into a pubfi(� aquatic paili after petitioners have proceeded as far as they have here, it may not, without
DENNis D. REYNOLDS LAW OFFICE
APPEAL OF ADMINISTRATIVE DECISION - 10 of 12 200 Winslow Way West, Suite 380
[90260-1] Bainbridge Island, WA 98110
(206) 780-6777
(206) 780-6865 (Facsimile)
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VII. APPEAL FEE
7.0 The $530 appeal fee is tendered with this appeal.
VIII. RELIEF REQUESTED
Appellants request that the Office of Hearing Examiner, upon review:
8.0 Reverse and vacate the Decision and remand with instructions to the City that
it process expeditiously and in good faith any and all after -the -fact permit applications
submitted by Appellants to maintain any improvements in question in place, including the
retaining wall.
8.1 Grant any other further relief that is just and fair under the circumstances.
DATED this 24th day of December, 2014.
DENNIS D. REYNOLDS LAW OFFICE
By
Dennis D. Reynolds, WSBA #04762
Attorneys for Appellants Rodney and Sandy Rich
invoking its eminent domain power and paying just compensation, require them to allow free access to the
dredged pond.
DENNIS D. REYNOLDS LAW OFFICE
APPEAL OF ADMINISTRATIVE DECISION - 11 of 12 200 Winslow Way west, Suite 380
[90260-11 Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
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CERTIFICA'I E OF SERVICE
I, the undersigned, hereby certify under penalty of perjury under the laws of the State
of Washington, that I am now, and have at all times material hereto been, a resident of the
State of Washington, over the age of 18 years, not a party to, nor interested in, the above -
entitled action, and competent to be a witness herein.
I caused a true and correct copy of the foregoing pleading to be served this date, in the
manner indicated, to the parties listed below:
Dr. Eric and Janice Rasmussen u Legal Messenger �
11721 Sunset Avenue NE ❑ Hand Delivered
Bainbridge Island, Washington, 98110 ❑ Facsimile
gHP!2 �c '1@y l°Ioo col t, email Li First Class Mail
❑ Express Mail, Next Day
Potential Interested Parites ,j Email
DATED at Bainbridge Island, Washington, this 24th day of December, 2014.
��' t ey
Christy A. 1 -. t
Legal Assistant
APPEAL OF ADMINISTRATIVE DECISION - 12 of 12
[90260-11
DENNIs D. REYNOLDS LAW OFFICE
200 Winslow Way West, Suite 380
Bainbridge Island, WA 98110
(206)780-6777
(206) 780-6865 (Facsimile)
RICH — Appeal of Administrative Decision
ExHlBiT 1
FOTHMi ` R
*ennis Reynolds
200 Winslow Way W. Ste 380
Bainbridge Island, WA 98110
ME3=
RE: Rodney and Sandy Rich- Retaining Wall Constructed at 11691 Sunset
Avenue NE
This letter serves as the City's response to the September 29th, 2014 Director's Review of
the code violation on the property owned by your clients, Rodney and Sandy Rich,
located at 11691 Sunset Avenue NE, City of Bainbridge Island, In particular, your
clients constructed a terraced retaining wall (hereafter "the retaining wall") to over four
feet tall covering several hundred square feet of their property without any building
permits, shoreline permits, or necessary authorization from the City. Additionally, the
retaining wall encroaches at least twelve feet onto the property to the North owned by
Eric Rasmussen, copied herein. For the reasons that follow, the retaining wall cannot be
permitted under the City's codes and ordinances. The City's decision regarding possible
gation of or removal of the retaining wall will depend upon our evaluation of
geI technical and engineering reports commissioned at your clients' expense as more
fully detailed at the end of this letter.
1. Review of the retaining wall under City of Bainbridge Island Shoreline
Master Program (SMP)
If your clients applied for permits to construct the retaining wall today, they would be
required to obtain a shoreline substantial development permit and shoreline conditional
use permit, In order for the City to grant such approvals, your clients would be required
to demonstrate that the retaining wall is necessary to prevent loss or substantial damage
from shoreline erosion caused by tidal action, not from land -sliding or upland sloughing,
See Section 6.2.8.2 of the SMP, Shoreline Stabilization, Your clients would also be
required to demonstrate through a geotechnical report a significant possibility of primary
structure or primary appurtenance damage within three years without the stabilization.
Given the paucity of evidence presented by your clients that the retaining wall was
Executive Department
280 Madison Avenue North
Bainbridge Island, WA 98110-1812
Phone: (206) 842-2545 Fax: (206) 780-8600
www.ci.bainbridge-istma.us
DECEMBER t2,2M
PAGr 2 oii, 6
constructed to prevent such shoreline erosion caused by tidal action or significant
[Rossibility of primary structural damage, it appears unlikely that these permits would
issue if applied for today,
Il. Review of the retaining wall under Bainbridge Island Municipal Code
(BIMC) Chapter 15.04 Building Code; the 2012 International Building Code
(IBC); and 2012 International Residential Code (IRC) relating to
construction.
James Weaver, Building Official for the City of Bainbridge Island, conducted an
evaluation of the documents and photos of the retaining wall and has concluded that the
retaining wall is in excess of 4 feet in height and is not exempt from a building permit
under the IBC and the IRC.
Aretaining wall is a wall designed to resist lateral earth and/or fluid pressures, including
any surcharge, in accordance with accepted engineering practice. Tiered retaining walls
o or more short walls horizontall offset from one another, that are usek&
xample, in Ine case oi two TOM rVaTriall-&-inam
of three feet and level backfill - that are horizontally offset by a distance of two feet, the
tiered wall is treated as a single wall six -feet in height. As a result, a building permit is
required.
The retaining wall possesses a total wall height in excess of four feet and would meet the
definition of a tiered retaining wall, although the retaining wall does not contain
sufficient setback between the retained vertical elements nor independence of structural
elements. Accordingly, your clients' retaining wall is in excess of 4 feet in height and is
not exempt from a building permit pursuant to following sections of the IBC and the IRC:
V,IV—AJZJ 7TY-U1MP", 1-1 p.mi-Roki
Section 105.2 Work exemptfrom permit.
105.2 Work exempt from permit.
Exemptionsfirom permit requirements of this code shall not be deemed to grant
of this code or any other laws or ordinances of this jurisdiction. Permits shall not
be requiredfor thefollowing:
4, Retaining walls that are not over 4feet (1219 mm) in height measuredftom the
bottom of the footing to the top of'the wall, unless supporting a surcharge or
impounding Class I, Il or HIA liquids.
2012 International Residential Code (IRC)
Section RI 05.2 Work exemplfrom permit.
Permits shall not be required for the following. Exemption from permit
requirements of this code shall not be deemed to grant authorization for any work
to be done in any manner in violation of the provisions of this code or any other
laws or ordinances of this jurisdiction.
Because the retaining wall is in excess of 4 feet in height, it is subject to the following
sections of the IRC regarding design and permitting:
loom
pressure ana water uplilt. A7eraining walls snall Ve,
1. 5 against lateral sliding and overturning.
The retaining wall is also subject to the following sections of the IBC concerning design
and permitting:
2012 International Building Code (IBC)
Secdox 312 LAIAi and Miscellaneous Group U Section 312.1 General.
Buildings and structures of an accessory character and miscellaneous structures
not classified in any specific occupancy shall be constructed, equipped and
maintained to conform to the requirements of this code commensurate with the
fire and life hazard incidental to their occupancy. Group U shall include, but not
be limited to, thefollowing:
Agricultural buildings, Aircraft hangars, accessory to a one- or two-family,
Barns, Carports, Fences more than 6 feet (1829 mm) in height , Grain silos,
accessoty to a residential occupancy, Greenhouses, Livestock shelters, Private
garages, Sheds, Stables, Tanks, Towers. Emphasis added.
SECTION 1605 LOAD COMBINA TIONS
Section 1605.1 GeneraL Buildings and other structures andportions thereqf shall
be designed to resist:
1. The load combinations specified in Section 1605.2, 1605.3. 1 or 1605.3.2;
2. The load combinations specified in Chapters 18 through 23; and
3. The seismic load effects including overstrength factor in accordance with
Section 12.4.3 of ASCE 7 where required by Section 12.2.5.2, 12.3.3.3 or
12.10.2.1 of'ASCE 7. With the simplifiedprocedure ofASCE 7 Section 12.14,
the seismic load effects including overstrength factor in accordance with
Section 12.14.3.2 rSCE 7 shall be used
t .
"FAIUMMI-o
Applicable loads shall be considered, including both earthquake and wind, in
accordance with the specified load combinations, Each load combination shall
also be investigated with one or more of the variable loads set to zero.
Where the load combinations with overstrength factor in Section 12.4.3.2 of
ASCE 7 apply, they shall be used asfollows:
1. The basic combinations for strength design with overstrengthfiactor in lieu
ofEquations 16-5 and 16-7 in Section 1605.2.
2. The basic combinationsfor allowable stress design with overstrength factor
in lieu ofEquations 16-12, 16-14 and 16-16 in Section 1605.3. 1.
3. The basic combinationsfor allowable stress design with overstrength factor
in lieu ofEquations 16-21 and 16-22 in Section 16,
5.3.2.
Section 1605.1.1 Stability. Regardless of which load combinations are used to
design for strength, where overall structure stability (such as stability against
overturning, sliding, or buoyancy) is being verified, use of the load combinations
specified in Section 1605.2 or 1605.3 shall be permitted Where the load
combinations specified in Section 1605.2 are used, strength reduction factors
shale be �iifv' iet a re istered desiffli %
ff _,zod'essional.
The stability of'retaining walls shall be verified in accordance with Section
1807.2.3.
Section 1610.1 General. Foundation walls and retaining walls shall be designed
to resist lateral 11 1/; Soil loads p, ./- in Table 1610.1 shall be used as
the minimum design lateral soil loads unless determined otherwise by a
geotechnical investigation in accordance with Section 1803. Foundation walls
and other walls in which horizontal movement is restricted at the top shall be
designedfbr at -rest pressure. Retaining walls free to move and rotate at the top
shall be permitted to be designed for active pressure, Design lateral pressure
from surcharge loads shall be added to the lateral earth ' pressure load. Design
lateral pressure shall be increased if soils at the site are expansi . ve. Foundation
walls shall be designed to support the weight of the full hydrostatic pressure of
undrained backfill unless a drainage system is installed in accordance with
Sections 180 5.4.2 and 1805.4.3.
EMBEDDED POSTS AND POLES
with Sections 1807.2.1 through 1807.2.3.
Section 1807.Zl General. Retaining walls shall be designed to ensure stability
against overturning, sliding, excessive foundation pressure and water uplifi.
Where a keyway is extended below the wall base with the intent to eng, e passive
pressure and enhance sliding stability, lateral soil pressures on both sides of the
keyway shall be considered in the sliding analysis.
DECEMBE'R �2,2014
PAGF, 5 OF 6
Section 1807.2.2 Design lateral soil loads. Retaining walls shall be I' /,
the lateral soil loads setfbrth in Section 1610.
Section 1807.2.3 Safety factor. Retaining walls shall be designed to resist the
lateral action of soil to produce sliding and overturning with a minimum safety
factor of 1. 5 in each case, The load combinations of Section 1605 shall not apply
to this requirement. Instead, design shall be based on 0. 7 times nominal
earthquake loads, 1. 0 times other nominal loads, and investigation with one or
more of the variable loads set to zero. The safety factor against lateral sliding
shall be taken as the available soil resistance at the base of the retaining wall
foundation divided by the net lateralforce applied to the retaining wall.
Section 2304.11 Protection Against Decay and Termites. Wood shall be
protectedfirom decay and termites in accordance with the applicable provisions
ofSections 2304.11.1 through 2304.11.9.
Section 2304.11.7 Wood used in retaining walls and cribs. Wood installed in
retaining or crib walls shall be preservative treated in accordance with A WPA U1
(Commodity Specifications A or F)for soil andfresh water use,
If your clients submitted a building permit application today for the retaining wall, the
permit would be subject to all the SMP, BIMC, IBC, and IRC sections referenced above.
Importantly, the application would require, at minimum, that the following additional
information from your clients in order to facilitate permit and building code compliance
review:
A site plan showing the location, extent, and height of the retaining wall in
relation to any building structure, pool, property lines, and public utility
casements.
2. Complete construction details of the retaining wall, stamped and signed by a
Washington registered civil or structural engineer. For segmental gravity
retaining walls, the details must clearly identify the block -manufacturer, block
type, drainage requirements, and maximum wall height.
4Rock Walls (Rockeries) are required to be designed by a Washington State
licensed Geotechnical Engineer and monitored during construction by the
designer for stone placement, size of stone the quality of the stone,
compaction, proper keying of base stones, drainage, fill reinforcement such
asgeo-grid, impacts to surface drainage and proper inclination of face stones.
DECEMBER 12, 2014
PAGrt 6 OF 6
A report prepared by a geotechnical engineer as well as a structural engineer with
the qualifications referred to in items 3, and 4, above, evaluating the impact of
removal of that portion of the retaining wall encroaching onto Mr. Rasmussen's
property to the North.
Upon the City's review of the submittals, a decision will be made regarding further
conditioning the retaining wall or possible removal of the wall. Because the retaining
wall cannot be permitted, any decision to allow the retaining wall to remain will
necessitate execution of a settlement and release of the City of all liability.
fllpilk you,
Lisa Marshall
City Attorney
cc: Eric Rasmussen
Kathy Cook, Director, Planning and Community Development
Josh Machen, Planning Manager
James Weaver, Building Official
Greg Vause, Code Compliance Officer
-MMEMM
EXHIBIT 2
July 3, 2014
Hand Delivered
... ....................... . . . .............. — Bainbridge Island
Kathy Cook, Director
Department of Planning and Community Development
Bainbridge Island City Hall JUL. - 7 2014
280 North Madison Avenue
Bainbridge Island, MIA 98110 Dept, of Marviing &
Cornmuny r..)eveuopn,era
Re: Rich,-- Tax [1�arceji No. 4189-004-019-0006
11691 Sunset Avenue NE, Bainbridge Island, Washington 98110
Dear Director Cook.,
Pursuant to the Bainbridge Island Municipal Code, Section 1.26,070, please treat this
letter as a Request toy, Director's Review, Review is Sought of that certain Letter of Violation
dated June 23, 201.4 and received ;Duly 2, 2014.1 ("'the Notice"') issued ii under BIMC § L26.050
and/or BIMC § 1.26.060 by the City's Code Enforcernent Officer, Greg Vause, 'The assil.pied
file number is COD -14.020.. Mr. and Mrs. Rich reseK ve the right to arnend the Request after
review of all relevant City files,,
A true and accurate copy of the Notice is attached. as Exhibit A and by, reference is made
part of this request, The Notice alleges two violations of the Bainbridge Island City Code, BIMC
§16.12.360 (failure to obtain a shoreline permit) and 131MC § 1.5.04.030 (failure to obtain a
building permit), The Code Enforcement Officer did not perform a site visit. 1'he Notice was
issued -following a review of City files in which the Officer determined there were no permits on
record.
This Reqtiest for Director" s Review is made on behalf of Rodney- and Sandy Rich, 11691
Sunset Avenue NE, Bainbridge Island, Washinp
gton 98110, Please email my office directly to set
a mutually comvenient date 1br the Director's Review meeting.
SPECIFICATION OF ERRO.1111S
It was error for the City to determine a Code Violation exists due to the lack of
shoreline permits because the stairway/terraces are exempt from shoreline
permitting requirements per BIMC § 16.12.260.B.9 and B.16. This aspect of the
Notice of Violation should be withdrawn pursuant to BIMC § 1.26.070.B.2.
It was error for the City to deter -mine a Code Violation exists because there is no
evidence of. (1) improper clearing or grading (BIMC § 16.12.060), (2)
1 Mr. and Mi s. Rich were out of to , w -n and (lid not receive the No ice of Violation unifl their r&urn ern July 2,,2014,
I90260-11
F I L E (""1 0 P Y OF MINBMD(31 MANCI
K.atony Cook, Director
Dept. of Planning &: Cinmunity Dev,
July 3, 2014
Page 2
envirownental impacts (BI C:" § 16,12.070), (3) impact to environmentally
sensitive areas (131MC § 16. 12.080) or violations of Native Vegetation Zone
requirements (131MC § .16.12.090), This aspect of the Notice of Violation should
be withdrawn pursuant to BIMC § 126.070M.2
3. The Director should modify the Notice of Violation with respect to alleged
violation of BIMC § 15.04.030, building pennit requirement, to allow an
extension of time for the Riches to come into compliance pursuant to d31 C'
§ '1,26.070.:83.14. This is due to the late receipt of the Notice of Violation, obtained
by the Riches on July 2, 2014. 'rhis is also due to the erroneous instruction given
to the Riches by the City that no building pennit was required for construction of
the stairway/terraces.,
BACKGROUND
Approximately 12 years ago, in 2002, Mr. Rich began work, on a 4.4 -bot wide stepped
pathway from his home located at 11.691 Sunset Ave NE, Bainbridge Island, to the beach in front
of his horne, The City of Bainbridge Island advised the Riches that no shoreline or building
permit was required to construct a pathway up to 4-fieet wide. In other words, the work was
exempt,
'rhe.stepped pathway work was coo npleted by.harid, slowly and laboriously over the 12 -
year period, Work commenced at the beach and continued over the years on the way up to the
house, which sits al.)proximately 70 feet above the beach.
'The stepped pathway work included teiTaces, which act to shore up the bank in front of
the Riches' home. Each terrace is approximately 2.5,,,..`1 feet in height. The City advised the
Riches that anything under four feet in height would not require a pernut,
Contrary to the allegations of (fie Complainants, the work is not primarily a retaining
structure, but constitutes a stairway to the beach, It includes terraces that also function as slope
stdbilizafion.
Contrary to the allegations of the Complainants, the work was not done in response to a
"slide on the property," but was accomplished over a 12 -year period.
Because work on. the property was done by hand, large patches of ground was never
exposed. 'rhe Riches have documentation of all plant purchases rnade over the past I I years.
The top terrace of the Riches' stairway is designed to be a small garden space and
includes boxwood and a privet hedge,
Kathy Cook, IDirector
Dept. of Planning & Community Dev.
July 3, 2014
Page 3
The Riches atternptetl twice to engage the city to detennine appropiriate landscaping to
install within the Native Vegetation one. When they received no response to their inquities,
they sought advice from 3 o Harui at Bainbridge Gardens who worked with the to develop
a phinting plan that the city would endorse. As as result they planted 16 vine maples and several
flats ofbrarriblegnmund cover. Based upon. Junk.o�h's advice, the Riches removed blackberries
and ivy.
The Complainants in this matter have characterized the top terrace as a "viewing area"
and "entertaining platf-brm," They are allegedly concerned about alleged impacts to privacy
and/or views.
SUGGES'TED RFLIEF
Upon review, the Director should vacate the Notice of Violation, pertaining to BIMC
§ 16.12.360, and should revise the Notice ofViohation regardinIMC § IM4.030 to provide
fior dditional tfine for the Riches to apply for as building permit mid/or after -the -fact shoreline
exemption.
Very truly yours,
I)ENNIS D, 3-Y�401,13S LAW OFFICE
Dennis D,,,, Reynolds
Enclosures
CV, Rodney and Sandy Rich
Greg Vause, Code Compliance Officer (w/encL) (hand d( edivered)
Lisa Marshall, City Aftomey (w/encl.) (hand delivered)
M�
EdX,
11"IBIl"
Department of InanjujivIg & COU111"u,igy Development
280 Madison Avenue North
ftnbridge island, VVA 98110
206-780-3769
wwwd,bakPbHdq&4s1,wq,,us
NO'"11710E OF V101A,".110N & ORDER TO CORREer
'he undersigned City of Bainbridge Island Code Compliance Officer hereby certifies and states that::
Violation Location
Properly Owner's Name
Parcxl Number
Addivss
(11ty, State, Zip Code
11691 Sunset Ave NE
I ......... . ---- .
J,Uidney Rich
4189 004 019 0006
Smite as above
Bainbridge Island, WA 98110
U&5UIU19r1CON OF VIOLATION
01 BWC 16.12 360 P&MM W'Gxwnpftn npguir@d before undertaking development or ecdvfty.
A Nnnitsft, quired
1. A de"Oopawnt us @, or,mcyv#y all nfg be 1JyW&#td#(0n W#Wr#thej4,?Hsd1rtJon of the Shomfine Manage"ventAct(Chapter
KM RCWorits successoy) and the shoreline maslerprogram, UnIOW it hs consistant w0h the PoNcy and procedures of the
Shorshne Mewpagement Act, applicable state regWaidons and the shomfirpe maslarporn grom,
02 NKC 1194.030 &d1ding wtihout a pqemjg
It shall he unl6whit for any person, firm or coiPoration to efflot, construrf, enlaMe, alfarpa ro #to ve �,, fl J�
. �y� move, �Mp Ve, mo , con e o
do=. fish, equip, use, owjjpy� Or r"&Intain any building or strewum irm the r or reuse or pernlk ftsame to be done, conlrayy to or
ih vkfthm of ony of the provisions of Nye cNy bigiclirug rode,
Specifically: The City has received a com.plaint that you have built a retaining type a rtcu% a slide oil your
pr'opeity.. A check of time City's permit system shows no perndts being issued -for your ptoi)crly involving a structure
like this,
ACTION REQUIRED
Wifillin (10) days from the diateof this letter, you amust Ibring your piroperty 11100 Con, Pill, ncew, Once the
property Is brought into, compliance, on Must runintwin the property to be lora C01110811CC with City codes.
A CIVIL INFRACTION CITAIION MAY LIE ISSUED FOR F",ACH AND FN1 iiy DAY W111(,'11 THE
VIOLATION CONTINUES BEYOND Tiff, 11')AXE A,NT) 11ME ESTABLISHIT) FOR CORR FCTION, A
CRININAL (711"ATION MAY 131`, ISS1.1fil") FOR ANY PEA 131NIC J. 2(000,
You musl calljor an inspeclion 10 VerVy conipliance and to cease additional legal acdonsfirem being
taken to gain coy nrI'm ance,,
Sign
Name:
Title.
Greg Vause
Code Compliance Officer
Please Contact the 0
selow
Ts Date: 6 23-14
odaj,w
]Phone. 206--780%1794
g
vau s e @ ba i n b n.w,-.1 gewa.gov
9
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tennis D. Reynolds Law Office 3595
12/2412014 City of Bainbridge Island
COBI filing fee: Appeal of Administrative Decision. 530.00
Columbia Bank - Che Rich: fee, Appeal of Admin Dec. 530.00